Exhibit 1.1

 

Mobileye Global Inc.

 

[●] shares of Class A Common Stock

 

___

 

Underwriting Agreement

 

[●], 2022

 

Goldman Sachs & Co. LLC

Morgan Stanley & Co. LLC

     As representatives (the “Representatives” or “you”) of the several Underwriters

named in Schedule I hereto,

 

c/o Goldman Sachs & Co. LLC

200 West Street

New York, New York 10282-2198

 

c/o Morgan Stanley & Co. LLC

1585 Broadway

New York, New York 10036

 

Ladies and Gentlemen:

 

Mobileye Global Inc., a Delaware corporation (the “Company”), proposes, subject to the terms and conditions stated in this agreement (this “Agreement”), to issue and sell to the several Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of [●] shares (the “Firm Shares”) and, at the election of the Underwriters, up to [●] additional shares (the “Optional Shares”) of Class A common stock, par value $0.01 per share (“Stock”) of the Company (the Firm Shares and the Optional Shares that the Underwriters elect to purchase pursuant to Section 2 hereof being collectively called the “Shares”).

 

The Master Transaction Agreement, Administrative Services Agreement, Employee Matters Agreement, Technology and Services Agreement, LiDAR Product Collaboration Agreement, and Tax Sharing Agreement, each as defined and described under the heading “Certain Relationships and Related Party Transactions—Intercompany Agreements” in the Pricing Prospectus and the Prospectus (as such terms are defined below) are referred to, collectively, as the “Intercompany Agreements.”

 

 

Morgan Stanley & Co. LLC (the “Directed Share Underwriter”) has agreed to reserve a portion of the Shares to be purchased by it under this Agreement for sale to the Company’s directors and directors, executive officers and certain employees of Intel Corporation (collectively, “Participants”), as set forth in each of the Pricing Prospectus and the Prospectus under the heading “Underwriting” (the “Directed Share Program”). The Shares to be sold by the Directed Share Underwriter and its affiliates pursuant to the Directed Share Program, at the direction of the Company, are referred to hereinafter as the “Directed Shares”. Any Directed Shares not orally confirmed for purchase by any Participant by the end of the business day on which this Agreement is executed will be offered to the public by the Underwriters as set forth in the Prospectus. The Company agrees and confirms that references to “affiliates” of the Directed Share Underwriter that appear in this Agreement shall be understood to include Mitsubishi UFJ Morgan Stanley Securities Co., Ltd.

 

1.            The Company represents and warrants to, and agrees with, each of the Underwriters that:

 

(a)            A registration statement on Form S-1 (File No. 333-[●]) (the “Initial Registration Statement”) in respect of the Shares has been filed with the Securities and Exchange Commission (the “Commission”); the Initial Registration Statement and any post-effective amendment thereto, each in the form heretofore delivered to you, have been declared effective by the Commission in such form; other than a registration statement, if any, increasing the size of the offering (a “Rule 462(b) Registration Statement”), filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the “Act”), which became effective upon filing, no other document with respect to the Initial Registration Statement has been filed with the Commission; and no stop order suspending the effectiveness of the Initial Registration Statement, any post-effective amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued and no proceeding for that purpose or pursuant to Section 8A of the Act has been initiated or, to the Company’s knowledge, threatened by the Commission (any preliminary prospectus included in the Initial Registration Statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of the Initial Registration Statement and the Rule 462(b) Registration Statement, if any, including all exhibits thereto and including the information contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial Registration Statement at the time it was declared effective, each as amended at the time such part of the Initial Registration Statement became effective or such part of the Rule 462(b) Registration Statement, if any, became or hereafter becomes effective, are hereinafter collectively called the “Registration Statement”; the Preliminary Prospectus relating to the Shares that was included in the Registration Statement immediately prior to the Applicable Time (as defined in Section 1(c) hereof) is hereinafter called the “Pricing Prospectus”; and such final prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called the “Prospectus”; any oral or written communication with potential investors undertaken in reliance on Rule 163B under the Act is hereinafter called a “Testing-the-Waters Communication”; and any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Act is hereinafter called a “Written Testing-the-Waters Communication”; and any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”);

 

 

(b)            (A) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has been issued by the Commission, and (B) each Preliminary Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Underwriter Information (as defined in Section 9 of this Agreement);

 

(c)            For the purposes of this Agreement, the “Applicable Time” is [●] p.m. (New York City time) on the date of this Agreement. The Pricing Prospectus, as supplemented by the information listed on Schedule II(c) hereto, taken together (collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did not, and as of each Time of Delivery (as defined in Section 4(a) of this Agreement) will not, include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and each Issuer Free Writing Prospectus and each Written Testing-the-Waters Communication does not conflict with the information contained in the Registration Statement, the Pricing Prospectus or the Prospectus and each Issuer Free Writing Prospectus and each Written Testing-the-Waters Communication, as supplemented by and taken together with the Pricing Disclosure Package, as of the Applicable Time, did not, and as of each Time of Delivery will not, include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to statements or omissions made in reliance upon and in conformity with the Underwriter Information;

 

(d)            The Registration Statement conforms, and the Prospectus and any further amendments or supplements to the Registration Statement and the Prospectus will conform, in all material respects to the requirements of the Act and the rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to each part of the Registration Statement, as of the applicable filing date as to the Prospectus and any amendment or supplement thereto, and as of each Time of Delivery, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Underwriter Information;

 

 

(e)            Neither the Company nor any of its subsidiaries has, since the date of the latest audited financial statements included in the Pricing Prospectus, (i) sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree or (ii) entered into any transaction or agreement (whether or not in the ordinary course of business) that is material to the Company and its subsidiaries taken as a whole or incurred any liability or obligation, direct or contingent, that is material to the Company and its subsidiaries taken as a whole, in each case otherwise than as set forth or contemplated in the Pricing Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there has not been (x) any change in the capital stock (other than as a result of (i) the exercise, if any, of stock options or the award, if any, of stock options or restricted stock in the ordinary course of business pursuant to the Company’s equity plans that are described in the Pricing Prospectus and the Prospectus or (ii) the issuance, if any, of stock upon conversion of Company securities as described in the Pricing Prospectus and the Prospectus) or long-term or short-term debt of the Company or any of its subsidiaries or (y) any Material Adverse Effect (as defined below); as used in this Agreement, “Material Adverse Effect” shall mean any material adverse change or effect, or any development involving a prospective material adverse change or effect, in or affecting (i) the business, properties, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Pricing Prospectus, or (ii) the ability of the Company to perform its obligations under this Agreement and the Intercompany Agreements, including the issuance and sale of the Shares, or to consummate the transactions contemplated in the Pricing Prospectus and the Prospectus;

 

(f)            The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them (other than with respect to Intellectual Property, title to which is addressed exclusively in subsection (y) hereof), in each case free and clear of all liens, encumbrances and defects except such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them, to their knowledge, under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries;

 

(g)            The Company has been (i) duly incorporated and is validly existing as a corporation and in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Pricing Prospectus, and (ii) duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except, in the case of this clause (ii), where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and each subsidiary of the Company that is a “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X promulgated under the Act) (each a “significant subsidiary”) has been (x) duly incorporated or organized and is validly existing as a corporation or other business organization in good standing under the laws of its jurisdiction of incorporation, formation or organization, as applicable, to the extent the concept of “good standing” is applicable under the laws of such jurisdiction, and (y) duly qualified as a foreign corporation or other business organization for the transaction of business and is in good standing (or the foreign equivalent, to the extent such concept exists) under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except, in the case of this clause (y), where the failure to be so qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and each subsidiary of the Company required to be listed in the Registration Statement under Item 601(b)(21) of Regulation S-K has been listed in the Registration Statement;

 

 

(h)            The Company has an authorized capitalization as set forth in the Pricing Prospectus and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and conform in all material respects to the description of the Stock contained in the Pricing Disclosure Package and Prospectus; and all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and except, in the case of any foreign subsidiary, for directors’ qualifying shares, are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;

 

(i)            The Shares have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued and fully paid and non-assessable and will conform in all material respects to the description of the Stock contained in the Pricing Disclosure Package and the Prospectus; and the issuance of the Shares is not subject to any preemptive or similar rights;

 

(j)            The issue and sale of the Shares and the compliance by the Company with this Agreement and each of the Intercompany Agreements and the consummation of the transactions contemplated in this Agreement, each of the Intercompany Agreements and the Pricing Prospectus, and, the execution and delivery by the Company of, and the performance by the Company of its obligations under the Intercompany Agreements, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (B) the certificate of incorporation or by-laws (or other applicable organizational document) of the Company or any of its subsidiaries, or (C) any statute or any judgment, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except in the case of clauses (A) and (C) for such conflicts, defaults, breaches, or violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Shares or the consummation by the Company of the transactions contemplated by this Agreement and each of the Intercompany Agreements, except such as have been obtained under the Act, the approval by the Financial Industry Regulatory Authority (“FINRA”) of the underwriting terms and arrangements, the approval for listing on The Nasdaq Global Select Market (“NASDAQ”) and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters;

 

 

(k)            Neither the Company nor any of its subsidiaries is (i) in violation of its certificate of incorporation or by-laws (or other applicable organizational document), (ii) in violation of any statute or any judgment, order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, or (iii) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except, in the case of the foregoing clauses (ii) and (iii), for such violations or defaults as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;

 

(l)            The statements set forth in the Pricing Prospectus and Prospectus under the caption “Description of Capital Stock”, insofar as they purport to constitute a summary of the terms of the Stock, under the caption “Certain Relationships and Related Party Transactions”, insofar as they purport to constitute a summary of the terms of the agreements referred to therein, and under the captions “U.S. Federal Income Tax Considerations for Non-U.S. Holders of Common Stock” and “Underwriting”, insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair in all material respects;

 

(m)            Other than as set forth in the Pricing Prospectus, there are no legal, governmental or regulatory investigations, claims, arbitrations, inquiries or proceedings (“Actions”) pending to which the Company or any of its subsidiaries or, to the Company’s knowledge, any officer or director of the Company, is a party or of which any property or assets of the Company or any of its subsidiaries or, to the Company’s knowledge, any officer or director of the Company, is the subject which, if determined adversely to the Company or any of its subsidiaries (or such officer or director), would individually or in the aggregate reasonably be expected to have a Material Adverse Effect; and, to the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or others; there are no current or pending Actions that are required under the Act to be described in the Registration Statement or the Pricing Prospectus that are not so described in all material respects; and there are no statutes, regulations or contracts or other documents that are required under the Act to be filed as exhibits to the Registration Statement or described in the Registration Statement, the Pricing Prospectus that are not so filed as exhibits to the Registration Statement or described in all material respects in the Registration Statement and the Pricing Prospectus;

 

 

(n)            The Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof, will not be an “investment company”, as such term is defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”);

 

(o)            At the time of filing the Initial Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or any offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Shares, and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined under Rule 405 under the Act;

 

(p)            PricewaterhouseCoopers LLP, which has certified certain financial statements of the Company and its subsidiaries is an independent registered public accounting firm as required by the Act and the rules and regulations of the Commission thereunder;

 

(q)            The Company maintains a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) that (i) complies with the requirements of the Exchange Act applicable to the Company, (ii) has been designed by the Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. generally accepted accounting principles (“GAAP”) and (iii) is sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (C) access to assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and the Company’s internal control over financial reporting is effective and the Company is not aware of any material weaknesses in its internal control over financial reporting;

 

(r)            Since the date of the latest audited financial statements included in the Pricing Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially and adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal control over financial reporting;

 

(s)            The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act applicable to the Company; such disclosure controls and procedures have been designed to ensure that material information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective;

 

 

(t)            The Company has all requisite corporate power and authority to execute and deliver, and to perform its obligations under, this Agreement and each of the Intercompany Agreements. This Agreement has been duly authorized, executed and delivered by the Company. Each Intercompany Agreement has been duly authorized, and when executed and delivered by the Company or its applicable subsidiary and, assuming due authorization, execution and delivery by each of the other parties thereto, will constitute a valid and legally binding agreement of the Company or such subsidiary enforceable against the Company or such subsidiary in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally or by equitable principles relating to enforceability;

 

(u)            None of the Company, any of its subsidiaries or controlled affiliates, or any director or officer of the Company or any of its subsidiaries, nor to the Company’s knowledge, any employee, agent, representative or other person associated with or acting on behalf of the Company, any of its subsidiaries or controlled affiliates, has (i) made, offered, promised or authorized any unlawful contribution, gift, entertainment or other unlawful expense (or taken, or will take, any act in furtherance thereof); (ii) made, offered, promised or authorized any direct or indirect unlawful payment (or taken, or will take, any act in furtherance thereof); or (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or the rules and regulations thereunder, the Bribery Act 2010 of the United Kingdom or any other applicable anti-corruption, anti-bribery or related law, statute or regulation (collectively, “Anti-Corruption Laws”); the Company and each of its subsidiaries and controlled affiliates have conducted their businesses in compliance with Anti-Corruption Laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; neither the Company nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of Anti-Corruption Laws;

 

(v)            The operations of the Company and each of its subsidiaries are and have been conducted at all times in compliance in all material respects with the requirements of applicable anti-money laundering laws, including, but not limited to, the Bank Secrecy Act of 1970, as amended by the USA PATRIOT ACT of 2001, and the rules and regulations promulgated thereunder, and the applicable anti-money laundering laws of the various jurisdictions in which the Company and each of its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened;

 

 

(w)            None of the Company, any of its subsidiaries or any director or officer of the Company or any of its subsidiaries, nor to the Company’s knowledge, any employee, agent, controlled affiliate, representative or other person associated with or acting on behalf of the Company or any of its subsidiaries is, or is owned or controlled by one or more persons or entities that are, (i) currently the subject or the target of any sanctions administered or enforced by the U.S. Government, including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person,” the European Union, Her Majesty’s Treasury, the United Nations Security Council, the Swiss Secretariat of Economic Affairs, or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized, or resident in a country or territory that is the subject or target of Sanctions (a “Sanctioned Jurisdiction”) including, but not limited to, so-called Donetsk People’s Republic, or so-called Luhansk People’s Republic or any other Covered Region of Ukraine identified pursuant to Executive Order 14065 and the Crimea region, Cuba, Iran, North Korea and Syria, and the Company will not directly or indirectly use the proceeds of the offering of the Shares hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (A) to fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time of such funding or facilitation, is the subject or the target of Sanctions or is a Sanctioned Jurisdiction, respectively (B) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions. For the past five (5) years, the Company and each of its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with or involving any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions; the Company and its subsidiaries have instituted and maintain policies and procedures designed to promote and achieve continued compliance with Sanctions;

 

(x)            The financial statements included in the Registration Statement, the Pricing Prospectus and the Prospectus, together with the related schedules and notes, present fairly in all material respects the financial position of the Company and its consolidated subsidiaries at the dates indicated and the statement of operations, stockholders’ equity and cash flows of the Company and its subsidiaries for the periods specified; and said financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved. The supporting schedules, if any, present fairly in all material respects in accordance with GAAP the information required to be stated therein. The summary financial information included in the Registration Statement, the Pricing Prospectus and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included therein. Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, the Pricing Prospectus or the Prospectus under the Act or the rules and regulations promulgated thereunder. All disclosures contained in the Registration Statement, the Pricing Prospectus and the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K of the Act, to the extent applicable. The pro forma financial information and the related notes contained in the Registration Statement, the Pricing Prospectus and the Prospectus have been prepared in accordance with the requirements of the Securities Act and the assumptions underlying such pro forma financial information are reasonable and are set forth in the Registration Statement, the Pricing Prospectus and the Prospectus;

 

 

(y)

 

(i)            Except as described in the Pricing Prospectus in connection with the transactions contemplated by the Intercompany Agreements and except as would not be reasonably expected to have a Material Adverse Effect, the Company and each of its subsidiaries (A) owns or possesses valid and sufficient rights to use all Intellectual Property used in or necessary for the conduct of its business as currently conducted, and (B) owns all Intellectual Property owned or purported to be owned by such entity (in the case of (B), “Company Intellectual Property”), free and clear of all liens and other encumbrances, other than licenses or covenants not to assert granted in the ordinary course. For the purpose of this Agreement, “Intellectual Property” means all intellectual property and proprietary rights of any kind arising in any jurisdiction of the world, including in or with respect to any patents (together with any reissues, continuations, continuations-in-part, divisions, renewals, extensions, counterparts and reexaminations thereof), patent applications (including provisional applications), discoveries and inventions; trademarks, service marks, trade names, trade dress, logos, Internet domain names, social media identifiers and accounts, and other indicia of origin and any registrations, applications and goodwill associated with any of the foregoing, as applicable; rights in published and unpublished works of authorship, whether copyrightable or not (including software and firmware (whether in object code, source code or RTL), website content, data, designs, databases, integrated circuits and integrated circuit masks, electronic, electrical, and mechanical equipment, and all other forms of technology and related documentation), and copyrights, mask work and semiconductor chip rights and all registrations and applications therefor; trade secrets, know-how and other confidential or proprietary information, including systems, procedures, methods, technologies, algorithms, designs, data, unpatentable discoveries and inventions and any other information meeting the definition of a trade secret under the Uniform Trade Secrets Act or similar laws (“Trade Secrets”) and other technology and intellectual property rights, including the right to sue for past, present and future infringement, misappropriation or dilution of any of the foregoing. Except as would not be reasonably expected to have a Material Adverse Effect, all Company Intellectual Property registered with, issued by or the subject of a pending application before the U.S. Patent and Trademark Office, United States Copyright Office, or any equivalent foreign governmental entities anywhere in the world, is to the knowledge of the Company, subsisting, valid and enforceable. Except as described in the Pricing Prospectus in connection with the transactions contemplated by the Intercompany Agreements, neither the Company nor any of its subsidiaries have made any commitments or entered into any agreements regarding any standards-setting organization or multi-party special interest groups where such participation requires the Company or any of its subsidiaries to grant to any third party a license or other right to any Company Intellectual Property, except as would not reasonably be expected to have a Material Adverse Effect;

 

 

(ii)            Except as would not reasonably be expected to have a Material Adverse Effect, (A) the conduct of the Company’s and its subsidiaries’ respective businesses has not violated, infringed, misappropriated or conflicted with, and will not, as currently planned to be conducted, violate, infringe, misappropriate or conflict with any Intellectual Property rights of any third party; (B) since January 1, 2019, the Company and its subsidiaries have not received any written notice of any claim of infringement, misappropriation or conflict with Intellectual Property rights of any third party (including any invitations to take a license or cease and desist letters); and (C) to the Company’s knowledge, there are no third parties who have or will be able to establish ownership rights of any Company Intellectual Property. Except as described in the Pricing Prospectus in connection with the transactions contemplated by the Intercompany Agreements, and as would not be reasonably expected to have a Material Adverse Effect, (A) there is no pending or to the Company’s knowledge, threatened in writing action, suit, proceeding or written claim by any third party challenging the validity, enforceability or scope of any Company Intellectual Property, or any right in or ownership of by the Company or any of its subsidiaries of any Company Intellectual Property, (B) there is no pending or to the Company’s knowledge, threatened in writing, action, suit, proceeding or written claim by others that the Company or any of its subsidiaries has violated, infringed, misappropriated or conflicted with, any Intellectual Property or other proprietary rights of any third party and (C) to the Company’s knowledge, no party has infringed, misappropriated, violated, or conflicted with any Company Intellectual Property. To the Company’s knowledge, except as would not be reasonably expected to have a Material Adverse Effect, no Intellectual Property has been obtained by the Company or any of its subsidiaries in violation of any contractual obligation binding on the Company or any of its subsidiaries, and the Company and its subsidiaries have complied with the terms of each agreement pursuant to which Intellectual Property has been licensed to the Company or any of its subsidiaries, all such agreements are in full force and effect and no such agreement has been breached or violated;

 

 

  

(iii)            Except as would not be reasonably expected to have a Material Adverse Effect, the Company and its subsidiaries have taken reasonable steps necessary to secure and protect their interests in the Intellectual Property developed by their employees, consultants, agents and contractors on behalf of the Company and its subsidiaries, including the execution of agreements that (x) presently assign Intellectual Property for the benefit of the Company and its subsidiaries by such employees, consultants, agents and contractors, except to the extent ownership of such Intellectual Property vests in the Company by operation of law, and (y) contain reasonable confidentiality obligations, consistent with industry standards, and to the Company’s knowledge, no such agreement has been breached or violated in a way that would impact the Company’s or any of its subsidiaries’ businesses. Except as would not reasonably be expected to have a Material Adverse Effect, (A) no government funding, facilities or resources of a university, college, other educational institution or research center was used in the development of any Company Intellectual Property, and no governmental agency or body (including the Israel Innovation Authority), university, college, other educational institution or research center has any claim, option or right in or to any Company Intellectual Property, and (B) the Company and its subsidiaries have taken commercially reasonable steps to maintain the confidentiality of all Trade Secrets and other confidential information owned, used or held for use by the Company or any of its subsidiaries;

 

(iv)            Except as would not reasonably be expected to have a Material Adverse Effect, the Company and its subsidiaries, with respect to all software (including source code) and other materials that are distributed under a “free,” “open source,” or similar licensing model (including the GNU General Public License, GNU Lesser General Public License, GNU Affero General Public License, New BSD License, Apache License, Apache 2.0 License, MIT License, Common Public License and other licenses approved as Open Source licenses under the Open Source Definition of the Open Source Initiative) (“Open Source Materials”) are in compliance with all license terms applicable to such Open Source Materials. To the knowledge of the Company, except as would not reasonably be expected to have a Material Adverse Effect, neither the Company nor any of its subsidiaries has used or distributed any Open Source Materials (or any software that links to Open Source Materials) in a manner that requires or has required (A) the Company or any of its subsidiaries to permit reverse engineering of any products or services of the Company or any of its subsidiaries, or any software code or other technology owned (or purported to be owned) by the Company or any of its subsidiaries, or (B) any products or services of the Company or any of its subsidiaries, or any software code or other technology owned (or purported to be owned) by the Company or any of its subsidiaries, to be (I) disclosed or distributed in source code form or (II) redistributed at no charge or minimal charge;

 

  

(v)            Except as would not be reasonably expected to have a Material Adverse Effect, the Company and its subsidiaries have, since January 1, 2019, (A) operated and currently operate their respective businesses in a manner compliant with all applicable foreign, federal, state and local laws, regulations and standards, all contractual obligations and all Company policies (internal and posted) concerning privacy and data security applicable to the Company’s, and its subsidiaries’, collection, access, use, modification, processing, handling, transfer (including cross border transfers), transmission, storage, disclosure and/or disposal of the data of their respective customers, employees and other third parties (the “Privacy and Data Security Requirements”), (B) implemented commercially reasonable administrative, technical and physical safeguards and policies and procedures designed to ensure compliance with Privacy and Data Security Requirements and (C) there has been no loss or unauthorized collection, access, use, modification, processing, handling, transfer, transmission, storage, disclosure, disposal or breach of security of customer, employee or third party data maintained by or on behalf of the Company and its subsidiaries, and neither the Company nor any of its subsidiaries has notified, has been required to notify pursuant to its Privacy and Data Security Requirements, or has the current intention to notify, any customer, or governmental entity of any such event; and

 

(vi)            Except as would not reasonably be expected to have a Material Adverse Effect, (A) the information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases owned (or purported to be owned) or controlled by the Company and its subsidiaries (collectively, “IT Systems”) are adequate for, and operate and perform in all respects as required in connection with, the operation of the business of the Company and its subsidiaries as currently conducted, and, to the knowledge of the Company, are free and clear of all viruses, bugs, contaminants, errors, defects, “Trojan horses,” “time bombs,” (as such terms are commonly understood in the software industry), malware and other corruptants or malicious code; and (B) the Company and its subsidiaries have taken commercially reasonable measures, consistent with industry standards, designed to protect the IT Systems. Without limiting the foregoing, the Company and its subsidiaries have implemented, maintained and complied with commercially reasonable information technology measures designed to ensure the operation, redundancy and security of, and to protect against any material breach, destruction, loss, unauthorized distribution, use, access, disablement, misappropriation or modification, or other compromise or misuse of or relating to, the IT Systems (“Breach”). Except as described in the Pricing Prospectus in connection with the transactions contemplated by the Intercompany Agreements, since January 1, 2019, except as would not reasonably be expected to have a Material Adverse Effect, there have been (i) no Breaches or outages, and (ii) no incidents, events or conditions under internal review or investigations relating to outages or any actual or suspected Breach;

 

 

(z)            No labor dispute with or disturbance by the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company is threatened; and neither the Company nor any of its subsidiaries has received written notice of any existing, threatened or imminent labor disturbance by the employees of any of its principal vendors, partners or contractors except, as would not be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect;

 

(aa)       Each Plan (as defined below) sponsored by the Company or any of its subsidiaries has been sponsored, maintained and contributed to in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), and the Internal Revenue Code of 1986, as amended (the “Code”), except for noncompliance that would not reasonably be expected to have a Material Adverse Effect; (B) no non-exempt prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan sponsored by the Company or any of its subsidiaries that would reasonably be expected to have a Material Adverse Event; (C) for each Plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no failure to satisfy the minimum funding standards (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether or not waived, has occurred or is reasonably expected to occur that would reasonably be expected to have a Material Adverse Event; (D) no “reportable event” (within the meaning of Section 4043(c) of ERISA, other than those events as to which notice is waived) has occurred or is reasonably expected to occur that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (E) neither the Company nor any member of its “Controlled Group” (defined as any organization which is a member of a controlled group of corporations within the meaning of Section 414 of the Code) has incurred, or is reasonably expected to incur, any liability under Title IV of ERISA (other than contributions to any Plan or any Multiemployer Plan (as defined below) or premiums to the Pension Benefit Guaranty Corporation (the “PBGC”), in the ordinary course and without default) in respect of a Plan or a Multiemployer Plan, except as would not reasonably be expected to have a Material Adverse Effect; and (F) there is no pending audit or investigation by the Internal Revenue Service, the Department of Labor, the PBGC or any other governmental agency or any foreign regulatory agency with respect to any Plan sponsored by the Company or any of its subsidiaries that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. None of the following events has occurred or is reasonably likely to occur, except as would not reasonably be expected to have a Material Adverse Effect: (x) an increase in the aggregate amount of contributions required to be made to all Plans by the Company or its subsidiaries in the current fiscal year of the Company and its subsidiaries compared to the amount of such contributions made in the Company and its subsidiaries’ most recently completed fiscal year; or (y) an increase in the Company and its subsidiaries’ “accumulated post-retirement benefit obligations” (within the meaning of Financial Accounting Standards Board Accounting Standards Codification Topic 715) compared to the amount of such obligations in the Company and its subsidiaries’ most recently completed fiscal year. For purposes of this paragraph, (i) the term “Plan” means an employee benefit plan, within the meaning of Section 3(3) of ERISA, subject to Title IV of ERISA, but excluding any Multiemployer Plan, sponsored, maintained or contributed to (or required to be contributed to) by the Company or any member of its Controlled Group and (ii) the term “Multiemployer Plan” means a multiemployer plan within the meaning of Section 4001(a)(3) of ERISA that is contributed to or required to be contributed to by the Company or any member of its Controlled Group;

 

  

(bb)       Except in all cases where such violation, claim, request, notice, proceeding, investigation or capital expenditure would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any applicable statute, law, regulation, ordinance, code or order of or with any governmental agency or body or any court, domestic or foreign, in each case, having jurisdiction over the Company or such subsidiary, relating to the use, management, disposal or release of hazardous or toxic substances or wastes or relating to pollution or the protection of the environment or human health or relating to exposure to hazardous or toxic substances or wastes (collectively, “Environmental Laws”), (B) neither the Company nor any of its subsidiaries has received any written claim, written request for information or written notice of liability or investigation arising under, relating to or based upon any Environmental Laws, (C) neither the Company nor any of its subsidiaries is aware of any pending or threatened notice, claim, proceeding or investigation which might lead to liability under Environmental Laws, (D) the Company does not anticipate incurring capital expenditures relating to compliance with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, investigation or closure of properties or compliance with Environmental Laws or any permit, license, approval, any related constraints on operating activities and any potential liabilities to third parties), and (E) neither the Company nor any of its subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended or is otherwise aware of contamination that would reasonably be expected to result in a claim against the Company or any of its subsidiaries under any Environmental Laws;

 

(cc)       The Company and its subsidiaries have paid all federal, state, local and foreign taxes required to be paid (except as currently being contested in good faith) and filed all tax returns required to be filed through the date hereof, and there is no tax deficiency that has been, or would reasonably be expected to be, asserted against the Company or any of its subsidiaries or any of their respective properties or assets, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and the Company does not have any knowledge of any tax deficiencies which would reasonably be expected to be determined adversely to the Company and which would reasonably be expected to have a Material Adverse Effect;

 

 

(dd)        No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) included in any of the Registration Statement, the Pricing Prospectus or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith;

  

(ee)     Nothing has come to the attention of the Company that has caused the Company to believe that the statistical and market-related data included in each of the Registration Statement, the Pricing Prospectus and the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects; and such data are consistent with the sources from which they are derived and, to the extent required, the Company has obtained the written consent to the use of such data from such sources;

 

(ff)      The Company has taken all necessary actions to ensure that it is in compliance with all provisions of the Sarbanes-Oxley Act of 2002, as amended and the rules and regulations promulgated in connection therewith, with which the Company is required to comply at the time of filing the Initial Registration Statement and as of the Applicable Time;

 

(gg)      Neither the Company nor any of its affiliates has taken or will take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company or any of its subsidiaries in connection with the offering of the Shares;

 

(hh)     The Company has not engaged in any form of solicitation, advertising or other action constituting an offer or a sale under the Israeli Securities Law, 5728-1968 in connection with the transactions contemplated hereby, which would require the Company to publish a prospectus in the State of Israel under the laws of the State of Israel;

 

(ii)            The Company and each of its subsidiaries have such permits, licenses, approvals, consents, franchises, certificates of need and other approvals or authorizations of governmental or regulatory authorities (“Permits”) as are necessary under applicable law to own their respective properties and conduct their respective businesses in the manner described in the Registration Statement, the Pricing Prospectus and the Prospectus, except for any of the foregoing that would not, individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has received notice of any proceedings related to the revocation or modification of any such Permits that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;

 

(jj)     Except as disclosed in the Registration Statement, the Pricing Prospectus and the Prospectus, the Company and its subsidiaries, taken as a whole, are insured against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged and as required by law; and the Company and its subsidiaries reasonably believe that they will be able to renew each’s existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole;

 

  

(kk)      There is no debt of, or guaranteed by, the Company or any of its subsidiaries that is rated by a “nationally recognized statistical rating organization,” as that term is defined by in Section 3(a)(62) of the Exchange Act;

 

(ll)      (i) There are no persons with registration rights or other similar rights to have any securities registered pursuant to the Registration Statement or otherwise registered by the Company under the Act, except as have been validly waived or complied with and (ii) no holder of outstanding shares of the Company’s capital stock is entitled to preemptive or other rights to subscribe for the Shares that have not been complied with or otherwise effectively waived;

 

(mm)      The Registration Statement, the Pricing Disclosure Package and the Prospectus, any Preliminary Prospectus and any Issuer Free Writing Prospectuses, and any amendments or supplements thereto, will comply, with any applicable laws or regulations of foreign jurisdictions in which the Registration Statement, the Pricing Disclosure Package and the Prospectus, any Preliminary Prospectus and any Issuer Free Writing Prospectuses, as amended or supplemented, if applicable, are distributed in connection with the Directed Share Program;

 

(nn)      No consent, approval, authorization or order of, or qualification with, any governmental body or agency, other than those obtained, is required in connection with the offering of the Directed Shares in any jurisdiction where the Directed Shares are being offered; and

 

(oo)            The Company has not offered, or caused the Directed Share Underwriter or any Morgan Stanley Entity (as defined in Section 9(f)) to offer, Shares to any person pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a customer or supplier of the Company to alter the customer’s or supplier’s level or type of business with the Company, or (ii) a trade journalist or publication to write or publish favorable information about the Company or its products.

 

2.            Subject to the terms and conditions herein set forth, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price per share of $[●], the number of Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto and (b) in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Shares as provided below, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the purchase price per share set forth in clause (a) of this Section 2 (provided that the purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Firm Shares but not payable on the Optional Shares), that portion of the number of Optional Shares as to which such election shall have been exercised (to be adjusted by the Representatives so as to eliminate fractional shares) determined by multiplying such number of Optional Shares by a fraction, the numerator of which is the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder.

 

 

The Company hereby grants to the Underwriters the right to purchase at their election up to [●] Optional Shares, at the purchase price per share set forth in the paragraph above, provided that the purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Firm Shares but not payable on the Optional Shares. Any such election to purchase Optional Shares may be exercised only by written notice from the Representatives to the Company, given within a period of 30 calendar days after the date of this Agreement, setting forth the aggregate number of Optional Shares to be purchased and the date on which such Optional Shares are to be delivered, as determined by the Representatives but in no event earlier than the First Time of Delivery (as defined in Section 4 hereof) or, unless the Representatives and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice.

 

3.            Upon the authorization by the Representatives of the release of the Shares, the several Underwriters propose to offer the Shares for sale upon the terms and conditions set forth in the Pricing Disclosure Package and the Prospectus.

 

4.            (a) The Shares to be purchased by each Underwriter hereunder, in definitive or book-entry form, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours’ prior notice to the Company shall be delivered by or on behalf of the Company to the Representatives, through the facilities of the Depository Trust Company (“DTC”), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by the Company to the Representatives at least forty-eight hours in advance. The Company will cause the certificates, if any, representing the Shares to be made available for checking and packaging at least twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the office of DTC or its designated custodian (the “Designated Office”). The time and date of such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City time, on [●], 2022 or such other time and date as the Representatives and the Company may agree upon in writing, and, with respect to the Optional Shares, 9:30 a.m., New York City time, on the date specified by the Representatives in the written notice given by the Representatives of the Underwriters’ election to purchase such Optional Shares, or such other time and date as the Representatives and the Company may agree upon in writing. Such time and date for delivery of the Firm Shares is herein called the “First Time of Delivery”, such time and date for delivery of the Optional Shares, if not the First Time of Delivery, is herein called the “Second Time of Delivery”, and each such time and date for delivery is herein called a “Time of Delivery”.

 

 

(b)            The documents to be delivered at each Time of Delivery by or on behalf of the parties hereto pursuant to Section 8 hereof, including the cross receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 8 hereof, will be delivered at the offices of Sullivan & Cromwell LLP, 1870 Embarcadero Road, Palo Alto, California 94303 (the “Closing Location”), and the Shares will be delivered at the Designated Office, all at such Time of Delivery. A meeting will be held at the Closing Location at [●] p.m., New York City time, on the New York Business Day next preceding such Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York City are generally authorized or obligated by law or executive order to close.

 

5.            The Company agrees with each of the Underwriters:

 

(a)            To prepare the Prospectus in a form approved by you and to file such Prospectus pursuant to Rule 424(b) under the Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement, or, if applicable, such earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the last Time of Delivery which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and to furnish you with copies thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order;

 

(b)            Promptly from time to time to take such action as you may reasonably request to qualify the Shares for offering and sale under the securities laws of such jurisdictions as you may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Shares; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation (where not otherwise required) or to file a general consent to service of process in any jurisdiction (where not otherwise required) or subject itself to taxation in any such jurisdiction in which it was not otherwise subject to taxation;

 

  

(c)            Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as you may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Shares and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus in order to comply with the Act, to notify you and upon your request to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;

 

(d)            To make generally available to its securityholders as soon as practicable (which may be satisfied by filing with the Commission’s Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”)), but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158);

 

 

(e)            (1) During the period beginning from the date hereof and continuing to and including the date 180 days after the date of the Prospectus (the “Lock-Up Period”), not to (i) offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise transfer or dispose of, directly or indirectly, or file with or confidentially submit to the Commission a registration statement under the Act relating to, any securities of the Company that are substantially similar to the Shares, including but not limited to any options or warrants to purchase shares of Stock or any securities that are convertible into or exchangeable for, or that represent the right to receive, Stock or any such substantially similar securities or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Stock or any such other securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Stock or such other securities, in cash or otherwise (other than the Shares to be sold hereunder or pursuant to employee equity incentive plans existing on, or upon the conversion or exchange of convertible or exchangeable securities outstanding as of, the date of this Agreement), or publicly disclose the intention to take any of the actions described in clause (i) or clause (ii) above, without the prior written consent of Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC; provided, however, that the foregoing restrictions shall not apply to (A) the Shares to be sold hereunder, (B) the grant of options to purchase or the issuance by the Company of common stock or any securities convertible into, exchangeable for or that represent the right to receive shares of common stock, including restricted stock units, in each case pursuant to the Company’s equity plans disclosed in the Pricing Prospectus; (C) the entry into an agreement providing for the issuance by the Company of shares of common stock or any security convertible into or exercisable for shares of common stock in connection with the acquisition by the Company or any of its subsidiaries of the securities, business, technology, property or other assets of another person or entity or pursuant to an employee benefit plan assumed by the Company in connection with such acquisition, and the issuance of any such securities pursuant to any such agreement, (D) the entry into any agreement providing for the issuance of shares of common stock or any security convertible into or exercisable for shares of common stock in connection with joint ventures, commercial relationships, debt financings, charitable contributions or other strategic transactions, and the issuance of any such securities pursuant to any such agreement and (E) the filing of any registration statement on Form S-8 relating to securities granted or to be granted pursuant to the Company’s equity incentive plans that are described in the Pricing Prospectus or any assumed employee benefit plan contemplated by clause (C); provided, that in the case of clauses (C) and (D), the aggregate number of shares of Stock that the Company may sell or issue or agree to sell or issue pursuant to clauses (C) and (D) shall not exceed 10% of the total number of shares of common Stock issued and outstanding immediately following the completion of the initial public offering contemplated by this Agreement; and provided, further, that in the case of clause (B), the Company shall (x) cause each recipient of such options or securities to execute and deliver to the Representatives a lock up agreement on substantially the same terms as the lock up agreements referenced in Section 8 hereof only if such options or securities vest during the term of the Lock-Up Period, and (y) enter stop transfer instructions with the Company’s transfer agent and registrar on such securities, which the Company agrees it will not waive or amend without the prior written consent of Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC; and provided, further, that in the case of clauses (C) and (D), the Company shall (x) cause each recipient of such securities to execute and deliver to the Representatives on or prior to the issuance of such securities, a lock-up agreement on substantially the same terms as the lock-up agreements referenced in Section 8 hereof for the remainder of the Lock-Up Period and (y) enter stop transfer instructions with the Company’s transfer agent and registrar on such securities, which the Company agrees it will not waive or amend without the prior written consent of Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC.

 

  

(2)            If Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC, in their sole discretion, agree to release or waive the restrictions set forth in a lock-up letter described in Section 8 hereof for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Annex II hereto through a major news service at least two business days before the effective date of the release or waiver;

 

(f)            During a period of three years from the effective date of the Registration Statement, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, to furnish to its stockholders as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date of the Registration Statement), to make available to its stockholders consolidated summary financial information of the Company and its subsidiaries for such quarter in reasonable detail;

 

(g)            During a period of three years from the effective date of the Registration Statement, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, to furnish to you copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as you may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission); provided, however, that no report, communication or financial statement need be furnished pursuant to this subsection (g) to the extent (i) they are furnished or filed by the Company and publicly available on the Commission’s EDGAR system, in which case they shall be deemed to have been furnished and delivered to you at the same time furnished to or filed with the Commission or (ii) the provision of which would require public disclosure by the Company under Regulation FD;

 

(h)            To use the net proceeds received by it from the sale of the Shares pursuant to this Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;

 

(i)            To use its best efforts to list, subject to notice of issuance, the Shares on NASDAQ;

 

  

 

(j)            To file with the Commission such information on Form 10-Q or Form 10-K as may be required by Rule 463 under the Act;

 

(k)            If the Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of this Agreement, and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to 16 C.F.R. 202.3a;

 

(l)            Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter an electronic version of the Company’s trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the on-line offering of the Shares (the “License”); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee and may not be assigned or transferred;

 

(m)            Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter a properly completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation, and the Company undertakes to provide such additional supporting documentation as each Underwriter may reasonably request in connection with the verification of the foregoing Certification; and

 

(n)            To comply with all applicable securities and other laws, rules and regulations in each jurisdiction in which the Directed Shares are offered in connection with the Directed Share Program.

 

6.            (a) The Company represents and agrees that, without the prior consent of the Representatives, it has not made and will not make any offer relating to the Shares that would constitute a “free writing prospectus” as defined in Rule 405 under the Act; each Underwriter represents and agrees that, without the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Shares that would constitute a free writing prospectus required to be filed with the Commission; any such free writing prospectus the use of which has been consented to by the Company and the Representatives is listed on Schedule II(a) [or Schedule II(c)] hereto;

 

(b)            The Company has complied and will comply with the requirements of Rule 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and the Company represents that it has satisfied and agrees that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file with the Commission any electronic road show;

 

(c)            The Company agrees that if at any time following issuance of an Issuer Free Writing Prospectus or Written Testing-the-Waters Communication any event occurred or occurs as a result of which such Issuer Free Writing Prospectus or Written Testing-the-Waters Communication would conflict with the information in the Registration Statement, the Pricing Prospectus or the Prospectus or would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus, Written Testing-the-Waters Communication or other document which will correct such conflict, statement or omission; and

 

 

(d)            The Company represents and agrees that (i) it has not engaged in, or authorized any other person to engage in, any Testing-the-Waters Communications, other than Testing-the-Waters Communications with the prior consent of the Representatives with entities that the Company reasonably believes are qualified institutional buyers as defined in Rule 144A under the Act or institutions that are accredited investors as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Act; and (ii) it has not distributed, or authorized any other person to distribute, any Written Testing-the-Waters Communications, other than those distributed with the prior consent of the Representatives that are listed on Schedule II(d) hereto; and the Company reconfirms that the Underwriters have been authorized to act on its behalf in engaging in Testing-the-Waters Communications.

 

7.            The Company covenants and agrees with the several Underwriters that, whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Shares under the Act and all other fees or expenses in connection with the preparation, printing, reproduction and filing of the Registration Statement, any Preliminary Prospectus, any Written Testing-the-Waters Communication, any Issuer Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii)  all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iv) all expenses in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 5(b) hereof, including the filing fees and the reasonable and documented fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey (provided that such reasonable and documented fees and disbursements of counsel to the Underwriters pursuant to this clause (iv) shall not exceed $5,000); (v) all fees and expenses in connection with listing the Shares on NASDAQ and all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Stock; (vi) the filing fees incident to, and the reasonable and documented fees and disbursements of counsel for the Underwriters in connection with, any required review by FINRA of the terms of the sale of the Shares (provided that such reasonable and documented fees and disbursements of counsel to the Underwriters pursuant to this clause (vi) shall not exceed $35,000); (vii) the cost of preparing stock certificates; if applicable, (viii) the cost and charges of any transfer agent, registrar or depositary; (ix) the costs and expenses of the Company relating to investor presentations on any roadshow undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic roadshow, expenses associated with the production of roadshow slides and graphics, fees and expenses of any consultants engaged in connection with the roadshow presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and 50% of the cost of any aircraft chartered in connection with the roadshow, (x) all fees and disbursements of counsel incurred by the Underwriters in connection with the Directed Share Program and stamp duties, similar taxes or duties or other taxes, if any, incurred by the Underwriters in connection with the Directed Share Program, and (xi) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, and Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes payable on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make.

 

 

8.            The obligations of the Underwriters hereunder, as to the Shares to be delivered at each Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the Applicable Time and such Time of Delivery, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:

 

(a)            The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose or pursuant to Section 8A of the Act shall have been initiated or threatened by the Commission; no stop order suspending or preventing the use of the Pricing Prospectus, Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;

 

(b)            Sullivan & Cromwell LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to the Representatives, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;

 

 

(c)            Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Company, shall have furnished to you their written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to the Representatives;

 

(d)            Houthoff, Dutch counsel for the counsel for the Company, shall have furnished to the Representatives their written opinion, in form and substance satisfactory to the Representatives;

 

(e)            Yigal Arnon & Co., Israeli counsel for the counsel for the Company, shall have furnished to the Representatives their written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to the Representatives;

 

(f)            On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at each Time of Delivery, PricewaterhouseCoopers LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;

 

(g)            (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock (other than as a result of the grant of stock options and restricted stock units or other equity incentives or the award of stock options, restricted stock units or other equity incentives in the ordinary course of business, in each case pursuant to the Company’s equity plans disclosed in the Registration Statement, the Pricing Prospectus and the Prospectus) or long-term debt of the Company or any of its subsidiaries or any change or effect, or any development involving a prospective change or effect, in or affecting (x) the business, properties, general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Pricing Prospectus, or (y) the ability of the Company to perform its obligations under this Agreement and the Intercompany Agreements, including the issuance and sale of the Shares, or to consummate the transactions contemplated in the Pricing Prospectus and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus;

 

 

(h)            On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, NASDAQ, the NYSE American, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade; (ii) a suspension or material limitation in trading in the Company’s securities on any exchange or in any over-the-counter market; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus;

 

(i)            The Shares to be sold at such Time of Delivery shall have been duly listed for quotation on NASDAQ;

 

(j)            Each Intercompany Agreement shall have been executed in the form filed as an exhibit to the Registration Statement and the transactions and agreements contemplated by the Intercompany Agreements to have occurred as of such Time of Delivery shall have been consummated substantially in accordance with the terms of the Intercompany Agreements and the descriptions thereof contained in the Pricing Prospectus and the Prospectus;

 

(k)            The Company shall have obtained and delivered to the Underwriters executed copies of an agreement from each officer, director, and all of the stockholders of the Company, substantially to the effect set forth in Annex III hereto in form and substance satisfactory to you;

 

(l)            The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement;

 

(m)            The Company shall have furnished or caused to be furnished to you at such Time of Delivery certificates of officers of the Company satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (g) of this Section and as to such other matters as you may reasonably request; and

 

(n)            The Company shall have furnished or caused to be furnished to the Representatives on the date of the Prospectus at a time prior to the execution of this Agreement and at such Time of Delivery a certificate of the Chief Financial Officer of the Company as to the accuracy of certain financial information included in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus and the Prospectus, in form and substance satisfactory to the Representatives.

 

 

9.            (a) The Company will indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing Prospectus, any “roadshow” as defined in Rule 433(h) under the Act (a “roadshow”), any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act or any Testing-the-Waters Communication , or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus or any Testing-the-Waters Communication, in reliance upon and in conformity with the Underwriter Information.

 

(b)            Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or any roadshow or any Testing-the-Waters Communication, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or any roadshow or any Testing-the-Waters Communication, in reliance upon and in conformity with the Underwriter Information; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred. As used in this Agreement with respect to an Underwriter and an applicable document, “Underwriter Information” shall mean the written information furnished to the Company by such Underwriter through the Representatives expressly for use therein; it being understood and agreed upon that the only such information furnished by any Underwriter consists of the following information in the Prospectus furnished on behalf of each Underwriter: the concession and reallowance figures appearing in the [●] paragraph under the caption “Underwriting”, and the information contained in the [●] paragraph under the caption “Underwriting”.

 

 

(c)            In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to subsection (a) or (b) above (such person, the “indemnified party”), the indemnified party shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing of the commencement thereof; provided that the failure to notify the indemnifying party shall not relieve it from any liability that it may have under the preceding paragraphs of this Section 9 except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than under the preceding paragraphs of this Section 9; and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding.  In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them.  It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred.  Such firm shall be designated in writing by the Representatives, in the case of parties indemnified pursuant to subsection (a), and by the Company, in the case of parties indemnified pursuant to subsection (b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.

 

 

(d)            If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other hand in connection with the offering of the Shares and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint.

 

 

(e)            The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each employee, officer and director of each Underwriter and each person, if any, who controls any Underwriter within the meaning of the Act and each broker-dealer or other affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company (including any person who, with his or her consent, is named in the Registration Statement as about to become a director of the Company) and to each person, if any, who controls the Company within the meaning of the Act.

 

(f)

 

(i)            The Company agrees to indemnify and hold harmless the Directed Share Underwriter, each person, if any, who controls the Directed Share Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act and each affiliate of the Directed Share Underwriter within the meaning of Rule 405 of the Act (“Morgan Stanley Entities” and each a “Morgan Stanley Entity”) from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (A) that arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the consent of the Company for distribution to Participants in connection with the Directed Share Program or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) that arise out of, or are based upon, the failure of any Participant to pay for and accept delivery of Directed Shares that the Participant agreed to purchase; or (C) related to, arising out of, or in connection with the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the bad faith or gross negligence of Morgan Stanley Entities. The Company agrees and confirms that references to “affiliates” of the Directed Share Underwriter that appear in this Agreement shall be understood to include Mitsubishi UFJ Morgan Stanley Securities Co., Ltd.

 

(ii)            In case any proceeding (including any governmental investigation) shall be instituted involving any Morgan Stanley Entity in respect of which indemnity may be sought pursuant to Section ‎9(f)(i), the Morgan Stanley Entity seeking indemnity, shall promptly notify the Company in writing and the Company, upon request of the Morgan Stanley Entity, shall retain counsel reasonably satisfactory to the Morgan Stanley Entity to represent the Morgan Stanley Entity and any others the Company may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Morgan Stanley Entity shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Morgan Stanley Entity unless (A) the Company shall have agreed to the retention of such counsel or (B) the named parties to any such proceeding (including any impleaded parties) include both the Company and the Morgan Stanley Entity and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not, in respect of the legal expenses of the Morgan Stanley Entities in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Morgan Stanley Entities. Any such separate firm for the Morgan Stanley Entities shall be designated in writing by the Directed Share Underwriter. The Company shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Company agrees to indemnify the Morgan Stanley Entities from and against any loss or liability by reason of such settlement or judgment. The Company shall not, without the prior written consent of the Directed Share Underwriter, effect any settlement of any pending or threatened proceeding in respect of which any Morgan Stanley Entity is or could have been a party and indemnity could have been sought hereunder by such Morgan Stanley Entity, unless such settlement includes an unconditional release of the Morgan Stanley Entities from all liability on claims that are the subject matter of such proceeding.

 

 

(iii)            To the extent the indemnification provided for in Section ‎9(f)(i) is unavailable to a Morgan Stanley Entity or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then the Company in lieu of indemnifying the Morgan Stanley Entity thereunder, shall contribute to the amount paid or payable by the Morgan Stanley Entity as a result of such losses, claims, damages or liabilities (A) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Morgan Stanley Entities on the other hand from the offering of the Directed Shares or (B) if the allocation provided by clause ‎9(f)(iii)(A) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause ‎9(f)(iii)(A) above but also the relative fault of the Company on the one hand and of the Morgan Stanley Entities on the other hand in connection with any statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Morgan Stanley Entities on the other hand in connection with the offering of the Directed Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Directed Shares (before deducting expenses) and the total underwriting discounts and commissions received by the Morgan Stanley Entities for the Directed Shares, bear to the aggregate initial public offering price of the Directed Shares as set forth in the Prospectus. If the loss, claim, damage or liability is caused by an untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, the relative fault of the Company on the one hand and the Morgan Stanley Entities on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement or the omission or alleged omission relates to information supplied by the Company or by the Morgan Stanley Entities and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

 

(iv)            The Company and the Morgan Stanley Entities agree that it would not be just or equitable if contribution pursuant to this Section ‎9(f) were determined by pro rata allocation (even if the Morgan Stanley Entities were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section ‎9(f)(iii). The amount paid or payable by the Morgan Stanley Entities as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by the Morgan Stanley Entities in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section ‎9(f), no Morgan Stanley Entity shall be required to contribute any amount in excess of the amount by which the total price at which the Directed Shares distributed to the public were offered to the public exceeds the amount of any damages that such Morgan Stanley Entity has otherwise been required to pay. The remedies provided for in this Section ‎9(f) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

 

(v)            The indemnity and contribution provisions contained in this Section ‎9(f) shall remain operative and in full force and effect regardless of (A) any termination of this Agreement, (B) any investigation made by or on behalf of any Morgan Stanley Entity or the Company, its officers or directors or any person controlling the Company and (C) acceptance of and payment for any of the Directed Shares.

 

10.            (a) If any Underwriter shall default in its obligation to purchase the Shares that it has agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Shares, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to you to purchase such Shares on such terms. In the event that, within the respective prescribed periods, you notify the Company that you have so arranged for the purchase of such Shares, or the Company notifies you that it has so arranged for the purchase of such Shares, you or the Company shall have the right to postpone such Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to this Agreement with respect to such Shares.

 

 

 

(b)            If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.

 

(c)            If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate number of all of the Shares to be purchased at such Time of Delivery, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect to a Second Time of Delivery, the obligations of the Underwriters to purchase and of the Company to sell the Optional Shares) shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.

 

11.           The respective indemnities, rights of contribution, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any director, officer, employee, affiliate or controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Shares.

 

12.            If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other reason, any Shares are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Shares for any reason permitted under this Agreement, the Company will reimburse the Underwriters through you for all documented out-of-pocket expenses approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Shares not so delivered, but the Company shall then be under no further liability to any Underwriter except as provided in Sections 7 and 9 hereof.

 

 

13.            In all dealings hereunder, the Representatives shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by the Representatives.

 

All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to each of the Representatives in care of (i) Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198, Attention: Registration Department and (ii) Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department; and if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9 hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by you upon request; provided, however, that notices under subsection 5(e) shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to you as the representatives at Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198, Attention: Control Room and Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Control Room. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.

 

In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

 

14.            This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, or any director, officer, employee, or affiliate of any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Shares from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.

 

15.            Time shall be of the essence of this Agreement. As used herein, the term “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.

 

 

16.            The Company acknowledges and agrees that (i) the purchase and sale of the Shares pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement, (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate, and (v) none of the activities of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice, or solicitation of any action by the Underwriters with respect to any entity or natural person. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.

 

17.            This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.

 

18.            This Agreement and any transaction contemplated by this Agreement and any claim, controversy or dispute arising under or related thereto shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflict of laws that would result in the application of any other law than the laws of the State of New York. The Company agrees that any suit or proceeding arising in respect of this Agreement or any transaction contemplated by this Agreement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York and the Company agrees to submit to the jurisdiction of, and to venue in, such courts.

 

19.            The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

20.            This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

 

21.            Notwithstanding anything herein to the contrary, the Company is authorized to disclose to any persons the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company relating to that treatment and structure, without the Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.

 

22.            Recognition of the U.S. Special Resolution Regimes.

 

(a)            In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b)            In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

 

(c)            As used in this section:

 

“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

 

“Covered Entity” means any of the following:

 

(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

 

(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

 

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

If the foregoing is in accordance with your understanding, please sign and return to us a copy hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company for examination upon request, but without warranty on your part as to the authority of the signers thereof.

 

[Signature Pages Follow]

 

 

	Very truly yours,
	Mobileye Global Inc.
	By:
		Name:
		Title:

 

Accepted as of the date hereof:
Goldman Sachs & Co. LLC
By:
	Name:
	Title:
Morgan Stanley & Co. LLC
By:
	Name:
	Title:
On behalf of each of the Underwriters

 

[Signature page to Underwriting Agreement]

 

 

SCHEDULE I

 

			Number of Optional
			Shares to be
	Total Number of		Purchased if
	Firm Shares		Maximum Option
Underwriter	to be Purchased		Exercised
Goldman Sachs & Co. LLC
Morgan Stanley & Co. LLC
Total

 

 

SCHEDULE II

 

(a)            Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:

 

Electronic roadshow made available on: [●]

 

(b)            Additional Documents Incorporated by Reference:

 

[None]

 

(c)            Information other than the Pricing Prospectus that comprise the Pricing Disclosure Package:

 

The initial public offering price per share for the Shares is $[●]

 

The number of Shares purchased by the Underwriters is [●].

 

(d)            Written Testing-the-Waters Communications:

 

[●]

 

 

ANNEX II

 

Form of Press Release

 

Mobileye Global Inc.
[Date]

 

Mobileye Global Inc., (the “Company”) announced today that Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC, the lead book-running managers in the Company’s recent public sale of shares of common stock, are [waiving] [releasing] a lock-up restriction with respect to shares of the Company’s common stock held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on [        ] 2022, and the shares may be sold on or after such date.

 

This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.

 

 

ANNEX III 

 

Mobileye Global Inc.

 

Form of Lock-Up Agreement

 

, 2022

 

Goldman Sachs & Co. LLC

Morgan Stanley & Co. LLC

 

As Representatives of the several Underwriters

named in Schedule I to the Underwriting Agreement

 

c/o Goldman Sachs & Co. LLC

200 West Street

New York, NY 10282-2198

 

c/o Morgan Stanley & Co. LLC

1585 Broadway

New York, New York 10036

 

Re:         Mobileye Global Inc. - Lock-Up Agreement

 

Ladies and Gentlemen:

 

The undersigned understands that you, as representatives (the “Representatives”), propose to enter into an underwriting agreement (the “Underwriting Agreement”) on behalf of the several underwriters named in Schedule I to such agreement (collectively, the “Underwriters”), with Mobileye Global Inc., a Delaware corporation (the “Company”), providing for a public offering (the “Public Offering”) of shares (the “Shares”) of the Class A common stock, par value $0.01 per share, of the Company (the “Class A Common Stock”) pursuant to a Registration Statement on Form S-1 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “SEC”). As used herein, the term “Common Stock” refers to shares of the Company’s common stock, par value $0.01 per share, including any shares of Class A Common Stock and Class B common stock, par value $0.01 per share.

 

In consideration of the agreement by the Underwriters to offer and sell the Shares, and of other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the undersigned agrees that, subject to the provisions contained herein, during the period beginning from the date of this letter (the “Lock-Up Agreement”) and continuing to and including the date that is 180 days after the date of the final prospectus relating to the Public Offering (the “Prospectus”) (such period, the “Lock-Up Period”), the undersigned shall not, and shall not cause or direct any of its affiliates to, (i) offer, sell, contract to sell, pledge, grant any option, right or warrant to purchase, purchase any option or contract to sell, lend or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock, or any options or warrants to purchase any shares of Common Stock, or any securities convertible into, exchangeable for or that represent the right to receive shares of Common Stock (such shares of Common Stock, options, rights, warrants or other securities, collectively, “Lock-Up Securities”), including without limitation any such Lock-Up Securities currently beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or hereafter acquired by the undersigned, (ii) engage in any hedging or other transaction or arrangement (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) which is designed to or which reasonably could be expected to lead to or result in a sale, loan, pledge or other disposition (whether by the undersigned or someone other than the undersigned), or transfer of any of the economic consequences of ownership, in whole or in part, directly or indirectly, of any Lock-Up Securities, whether any such transaction or arrangement described in clause (i) or (ii) above (or instrument provided for thereunder) would be settled by delivery of Common Stock or other securities, in cash or otherwise (any such sale, loan, pledge or other disposition, or transfer of economic consequences, a “Transfer”), (iii) make any demand for or exercise any right with respect to the registration of any Lock-Up Securities or (iv) otherwise publicly announce any intention to engage in or cause any action, activity, transaction or arrangement described in clause (i), (ii) or (iii) above. The undersigned represents and warrants that the undersigned is not, and has not caused or directed any of its affiliates to be or become, currently a party to any agreement or arrangement that provides for, is designed to or reasonably could be expected to lead to or result in any Transfer during the Lock-Up Period.

 

 

Notwithstanding the foregoing, the undersigned may:

 

(a)

transfer the undersigned’s Lock-Up Securities (i) as one or more bona fide gifts or charitable contributions, or for bona fide estate planning purposes, (ii) upon death by will, testamentary document or intestate succession, (iii) if the undersigned is a natural person, to any member of the undersigned’s immediate family or to any trust for the direct or indirect benefit of the undersigned or an immediate family member (as defined in FINRA Rule 5130(i)(5)) of the undersigned or, if the undersigned is a trust, to a trustor or beneficiary of the trust or the estate of a beneficiary of such trust, (iv) to a partnership, limited liability company or other entity of which the undersigned and the immediate family of the undersigned are the legal and beneficial owner of all of the outstanding equity securities or similar interests, (v) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (a)(i) through (iv) above, (vi) if the undersigned is a corporation, partnership, limited liability company or other business entity, (A) to another corporation, partnership, limited liability company or other business entity that is an affiliate (as defined in Rule 405 under the Securities Act of 1933, as amended) of the undersigned, or to any investment fund or other entity which fund or entity is controlled or managed by the undersigned or affiliates of the undersigned, or (B) as part of a distribution by the undersigned to its stockholders, partners, members or other equityholders or to the estate of any such stockholders, partners, members or other equityholders, (vii) by operation of law, such as pursuant to a qualified domestic order, divorce settlement, divorce decree or separation agreement, (viii) to the Company from an employee or service provider of the Company upon death, disability or termination of employment, in each case, of such employee or service provider, (ix) in connection with a sale of the undersigned’s shares of Common Stock acquired (A) from the Underwriters in the Public Offering (except, in the case of officers or directors for any issuer-directed Shares) or (B) in open market transactions after the closing date of the Public Offering, (x) to the Company in connection with the vesting, settlement or exercise of restricted stock units, options, warrants or other rights to purchase shares of Common Stock (including, in each case, by way of “net” or “cashless” exercise), including any transfer to the Company for the payment of tax withholdings or remittance payments due as a result of the vesting, settlement or exercise of such restricted stock units, options, warrants or other rights, or in connection with the conversion of convertible securities, in all such cases pursuant to equity awards granted under a stock incentive plan or other equity award plan, or pursuant to the terms of convertible securities, each as described in the Registration Statement, the preliminary prospectus relating to the Shares included in the Registration Statement immediately prior to the time the Underwriting Agreement is executed and the Prospectus, provided that any securities received upon such vesting, settlement, exercise or conversion shall be subject to the terms of this Lock-Up Agreement, or (xi) with the prior written consent of Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC on behalf of the Underwriters; provided that (A) in the case of clauses (a)(i), (ii), (iii), (iv), (v) and (vi) above, such transfer or distribution shall not involve a disposition for value, (B) in the case of clauses (a)(i), (ii), (iii), (iv), (v), (vi) and (vii) above, it shall be a condition to the transfer or distribution that the donee, devisee, transferee or distributee, as the case may be, shall sign and deliver a lock-up agreement in the form of this Lock-Up Agreement, (C) in the case of clauses (a)(i), (ii), (iii), (iv), (v) and (vi) above, no filing by any party (including, without limitation, any donor, donee, devisee, transferor, transferee, distributor or distributee) under the Securities Exchange Act of 1934, as amended (the “Exchange Act), or other public filing, report or announcement reporting a reduction in beneficial ownership of Lock-Up Securities shall be required or shall be voluntarily made in connection with such transfer or distribution, and (D) in the case of clauses (a)(vii), (viii), (ix) and (x) above, no filing under the Exchange Act or other public filing, report or announcement shall be voluntarily made, and if any such filing, report or announcement shall be legally required during the Lock-Up Period, such filing, report or announcement shall clearly indicate in the footnotes thereto (A) the circumstances of such transfer or distribution and (B) in the case of a transfer or distribution pursuant to clause (a)(vii) above, that the donee, devisee, transferee or distributee has agreed to be bound by a lock-up agreement in the form of this Lock-Up Agreement;

 

 

(b)

enter into a written plan meeting the requirements of Rule 10b5-1 under the Exchange Act relating to the transfer, sale or other disposition of the undersigned’s Lock-Up Securities, if then permitted by the Company, provided that none of the securities subject to such plan may be transferred, sold or otherwise disposed of until after the expiration of the Lock-Up Period and no public announcement, report or filing under the Exchange Act, or any other public filing, report or announcement, shall be required or shall be voluntarily made regarding the establishment of such plan during the Lock-Up Period; and

 

(c)

transfer the undersigned’s Lock-Up Securities pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction that is approved by the Board of Directors of the Company and made to all holders of the Company’s Common Stock involving a Change of Control of the Company (for purposes hereof, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock if, after such transfer, such person or group of affiliated persons would hold at least a majority of the outstanding voting securities of the Company (or the surviving entity)); provided that in the event that such tender offer, merger, consolidation or other similar transaction is not completed, the undersigned’s Lock-Up Securities shall remain subject to the provisions of this Lock-Up Agreement.

 

If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed Shares the undersigned may purchase in the Public Offering.

 

If the undersigned is not a natural person, the undersigned represents and warrants that no single natural person, entity or “group” (within the meaning of Section 13(d)(3) of the Exchange Act), other than a natural person, entity or “group” (as described above) that has executed a Lock-Up Agreement in substantially the same form as this Lock-Up Agreement, beneficially owns, directly or indirectly, 50% or more of the common equity interests, or 50% or more of the voting power, in the undersigned.

 

 

If the undersigned is an officer or director of the Company, (i) Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC will notify the Company of the impending release or waiver, and (ii) the Company has agreed, or will agree, in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service (or such other method approved by Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC that satisfies the requirements of FINRA Rule 5131(d)(2)) at least two business days before the effective date of the release or waiver, if so required by FINRA Rule 5131(d)(2). Any release or waiver granted by Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (i) the release or waiver is effected solely to permit a transfer not for consideration or that is to an immediate family member as defined in FINRA Rule 5130(i)(5) and (ii) the transferee has agreed in writing to be bound by the same terms described in this Lock-Up Agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.

 

The undersigned now has, and, except as contemplated by clauses (a) and (c) of the third paragraph of this Lock-Up Agreement, for the duration of this Lock-Up Agreement will have, good and marketable title to the undersigned’s Lock-Up Securities, free and clear of all liens, encumbrances and claims whatsoever. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Lock-Up Securities except in compliance with the foregoing restrictions.

 

The undersigned acknowledges and agrees that none of the Underwriters has made any recommendation or provided any investment or other advice to the undersigned with respect to this Lock-Up Agreement or the subject matter hereof, and the undersigned has consulted its own legal, accounting, financial, regulatory, tax and other advisors with respect to this Lock-Up Agreement and the subject matter hereof to the extent the undersigned has deemed appropriate. The undersigned further acknowledges and agrees that, although the Underwriters may have provided or hereafter provide to the undersigned in connection with the Public Offering a Form CRS and/or certain other disclosures as contemplated by Regulation Best Interest, the Underwriters have not made and are not making a recommendation to the undersigned to enter into this Lock-Up Agreement or to transfer, sell or dispose of, or to refrain from transferring, selling or disposing of, any shares of Common Stock, and nothing set forth in such disclosures or herein is intended to suggest that any Underwriter is making such a recommendation.

 

 

This Lock-Up Agreement shall automatically terminate and the undersigned shall be released from all of his, her or its obligations hereunder upon the earlier of (i) the date on which the Registration Statement filed with the SEC with respect to the Public Offering is withdrawn, (ii) the date on which for any reason the Underwriting Agreement is terminated (other than the provisions thereof that survive termination) prior to payment for and delivery of the Shares to be sold thereunder (other than pursuant to the Underwriters’ option thereunder to purchase additional Shares), (iii) the date on which the Company notifies the Representatives, in writing and prior to the execution of the Underwriting Agreement, that it does not intend to proceed with the Public Offering and (iv) December 31, 2022, in the event that the Underwriting Agreement has not been executed by such date (provided, however, that the Company may, by written notice to the undersigned prior to such date, extend such date by a period of up to an additional 90 days).

 

The undersigned understands that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Public Offering. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. The Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters. The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Lock-Up Agreement. This Lock-Up Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflict of laws that would result in the application of any law other than the laws of the State of New York. This Lock-Up Agreement may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or www.echosign.com) or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. 

 

[Signature Page Follows]

 

 

Very truly yours, 

 

IF AN INDIVIDUAL:			IF AN ENTITY:
By:
	(duly authorized signature)		(please print complete name of entity)
Name:			By:
	(please print full name)			(duly authorized signature)
			Name:
				(please print full name)
			Title:
				(please print full title)

 

[Signature Page to Lock-Up Agreement]

 

 

Exhibit 3.1

 

CERTIFICATE OF INCORPORATION

 

OF

 

MOBILEYE GROUP INC.

  

FIRST: The name of the Corporation is Mobileye Group Inc. (hereinafter the “Corporation”).

 

SECOND: The address of the registered office of the Corporation in the State of Delaware is 251 Little Falls Drive, Wilmington, County of New Castle, 19808. The name of its registered agent at that address is Corporation Service Company.

 

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the “GCL”).

 

FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is 100 shares of Common Stock, each having a par value of one penny ($0.01).

 

FIFTH: The name and mailing address of the Sole Incorporator is as follows:

 

Name		Address
Deborah M. Reusch		P.O. Box 636
		Wilmington, DE 19899

 

SIXTH: The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:

 

(1) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

 

 

(2) The directors shall have concurrent power with the stockholders to make, alter, amend, change, add to or repeal the Bylaws of the Corporation.

 

(3) The number of directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, the Bylaws of the Corporation. Election of directors need not be by written ballot unless the Bylaws so provide.

 

(4) No director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the GCL or (iv) for any transaction from which the director derived an improper personal benefit. Any repeal or modification of this Article SIXTH by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.

 

(5) In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the GCL, this Certificate of Incorporation, and any Bylaws adopted by the stockholders; provided, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such Bylaws had not been adopted.

 

SEVENTH: Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.

 

EIGHTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.

 

 

I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the GCL, do make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 21st day of January, 2022.

 

	/s/ Deborah M. Reusch
	Deborah M. Reusch
	Sole Incorporator

 

 

 

 

Exhibit 3.2

 

CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
MOBILEYE GROUP INC.

 

 

Pursuant to Section 242 of the General
Corporation Law of the State of Delaware

 

 

Mobileye Group Inc., a Delaware corporation (hereinafter called the “Corporation”), does hereby certify as follows:

 

FIRST: Article FIRST of the Corporation’s Certificate of Incorporation is hereby amended to read in its entirety as set forth below:

 

FIRST: The name of the Corporation is Mobileye Holdings Inc. (hereinafter the “Corporation”).

 

SECOND: The foregoing amendment was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate to be duly executed in its corporate name this 23^rd day of February, 2022.

 

	MOBILEYE GROUP INC.
	By:	/s/ Patrick Bombach
	Name: Patrick Bombach
	Title: President and Secretary

 

 

 

Exhibit 3.3

 

CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
MOBILEYE HOLDINGS INC.

 

 

Pursuant to Section 242 of the General
Corporation Law of the State of Delaware

 

 

Mobileye Holdings Inc., a Delaware corporation (hereinafter called the “Corporation”), does hereby certify as follows:

 

FIRST: Article FIRST of the Corporation’s Certificate of Incorporation is hereby amended to read in its entirety as set forth below:

 

FIRST: The name of the Corporation is Mobileye Global Inc. (hereinafter the “Corporation”).

 

SECOND: The foregoing amendment was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware.

 

IN WITNESS WHEREOF, the Corporation has caused this Certificate to be duly executed in its corporate name this 21^st day of April, 2022.

 

	MOBILEYE HOLDINGS INC.
	By:	/s/ Patrick Bombach
	Name: Patrick Bombach
	Title: President and Secretary

 

 

 

Exhibit 3.4

 

BYLAWS

 

OF

 

MOBILEYE GROUP INC.

 

A Delaware Corporation

 

Effective January 21, 2022

 

 

TABLE OF CONTENTS

 

		Page
ARTICLE I   OFFICES
Section 1.	Registered Office	1
Section 2.	Other Offices	1
ARTICLE II   MEETINGS OF STOCKHOLDERS
Section 1.	Place of Meetings	1
Section 2.	Annual Meetings	1
Section 3.	Special Meetings	1
Section 4.	Notice	2
Section 5.	Adjournments and Postponements	2
Section 6.	Quorum	2
Section 7.	Voting	3
Section 8.	Proxies	3
Section 9.	Consent of Stockholders in Lieu of Meeting	4
Section 10.	List of Stockholders Entitled to Vote	5
Section 11.	Record Date	5
Section 12.	Stock Ledger	6
Section 13.	Conduct of Meetings	6
Section 14.	Inspectors of Election	7
ARTICLE III   DIRECTORS
Section 1.	Number and Election of Directors	7
Section 2.	Vacancies	7
Section 3.	Duties and Powers	7
Section 4.	Meetings	8
Section 5.	Organization	8
Section 6.	Resignations and Removals of Directors	8
Section 7.	Quorum	8
Section 8.	Emergency Powers	9
Section 9.	Actions of the Board by Written Consent	10
Section 10.	Meetings by Means of Conference Telephone	10
Section 11.	Committees	11
Section 12.	Subcommittees	11
Section 13.	Compensation	11
Section 14.	Interested Directors	12

 

 

ARTICLE IV   OFFICERS
Section 1.	General	12
Section 2.	Election	12
Section 3.	Voting Securities Owned by the Corporation	12
Section 4.	Chair of the Board of Directors	13
Section 5.	President	13
Section 6.	Vice Presidents	13
Section 7.	Secretary	13
Section 8.	Treasurer	14
Section 9.	Other Officers	14
ARTICLE V   STOCK
Section 1.	Form of Certificates	14
Section 2.	Lost Certificates	14
Section 3.	Transfers	15
Section 4.	Dividend Record Date	15
Section 5.	Record Owners	15
Section 6.	Transfer and Registry Agents	15
ARTICLE VI   NOTICES
Section 1.	Notices	16
Section 2.	Waivers of Notice	16
ARTICLE VII   GENERAL PROVISIONS
Section 1.	Dividends	17
Section 2.	Disbursements	17
Section 3.	Fiscal Year	17
Section 4.	Corporate Seal	17

 

 

ARTICLE VIII   INDEMNIFICATION
Section 1.	Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation	17
Section 2.	Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation	18
Section 3.	Authorization of Indemnification	18
Section 4.	Good Faith Defined	19
Section 5.	Indemnification by a Court	19
Section 6.	Expenses Payable in Advance	19
Section 7.	Nonexclusivity of Indemnification and Advancement of Expenses	19
Section 8.	Insurance	20
Section 9.	Certain Definitions	20
Section 10.	Survival of Indemnification and Advancement of Expenses	20
Section 11.	Limitation on Indemnification	21
Section 12.	Indemnification of Employees and Agents	21
ARTICLE IX   FORUM FOR ADJUDICATION OF CERTAIN DISPUTES
Section 1.	Forum for Adjudication of Certain Disputes	21
ARTICLE X   AMENDMENTS
Section 1.	Amendments	22
Section 2.	Entire Board of Directors	22

 

 

BYLAWS

 

OF

 

MOBILEYE GROUP INC.

 

(hereinafter called the “Corporation”)

  

ARTICLE I

 

OFFICES

 

Section 1.                Registered Office. The registered office of the Corporation shall be 251 Little Falls Drive, in the City of Wilmington, County of New Castle, State of Delaware, 19808.

 

Section 2.                Other Offices. The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors of the Corporation (the “Board of Directors”) may from time to time determine.

 

ARTICLE II

 

MEETINGS OF STOCKHOLDERS

 

Section 1.                Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors. The Board of Directors may, in its sole discretion, determine that a meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication in the manner authorized by Section 211 of the General Corporation Law of the State of Delaware (the “DGCL”).

 

Section 2.                Annual Meetings. The Annual Meeting of Stockholders for the election of directors shall be held on such date and at such time as shall be designated from time to time by the Board of Directors. Any other proper business may be transacted at the Annual Meeting of Stockholders.

 

Section 3.                Special Meetings. Unless otherwise required by law or by the certificate of incorporation of the Corporation, as amended and restated from time to time (the “Certificate of Incorporation”), Special Meetings of Stockholders, for any purpose or purposes, may be called by either (i) the Chair of the Board of Directors, if there be one, or (ii) the President, (iii) any Vice President, if there be one, (iv) the Secretary or (v) any Assistant Secretary, if there be one, and shall be called by any such officer at the request in writing of (i) the Board of Directors, (ii) a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers and authority include the power to call such meetings or (iii) stockholders owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote on the matter for which such Special Meeting of Stockholders is called. Such request shall state the purpose or purposes of the proposed meeting. At a Special Meeting of Stockholders, only such business shall be conducted as shall be specified in the notice of meeting (or any supplement thereto).

 

 

Section 4.                Notice. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting, in the form of a writing or electronic transmission, shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at such meeting, if such date is different from the record date for determining stockholders entitled to notice of such meeting and, in the case of a Special Meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by law, notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining stockholders entitled to notice of such meeting.

 

Section 5.                Adjournments and Postponements. Any meeting of the stockholders may be adjourned or postponed from time to time by the chair of such meeting or by the Board of Directors, without the need for approval thereof by stockholders to reconvene or convene, respectively at the same or some other place. Notice need not be given of any such adjourned or postponed meeting if the time and place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned or postponed meeting are announced at the meeting at which the adjournment is taken or, with respect to a postponed meeting, are publicly announced. At the adjourned or postponed meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment or postponement is for more than thirty (30) days, notice of the adjourned or postponed meeting in accordance with the requirements of Section 4 hereof shall be given to each stockholder of record entitled to vote at the meeting. If, after the adjournment or postponement, a new record date for stockholders entitled to vote is fixed for the adjourned or postponed meeting, the Board of Directors shall fix a new record date for notice of such adjourned or postponed meeting in accordance with Section 11 hereof, and shall give notice of the adjourned or postponed meeting to each stockholder of record entitled to vote at such adjourned or postponed meeting as of the record date fixed for notice of such adjourned or postponed meeting.

 

Section 6.                Quorum. Unless otherwise required by the DGCL or other applicable law or the Certificate of Incorporation, the holders of a majority of the Corporation’s capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, in the manner provided in Section 5 hereof, until a quorum shall be present or represented.

 

 

Section 7.                Voting. Unless otherwise required by law, the Certificate of Incorporation or these Bylaws, or permitted by the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, any question brought before any meeting of the stockholders, other than the election of directors, shall be decided by the vote of the holders of a majority of the total number of votes of the Corporation’s capital stock present at the meeting in person or represented by proxy and entitled to vote on such question, voting as a single class. Unless otherwise provided in the Certificate of Incorporation, and subject to Section 11(a) of this Article II, each stockholder represented at a meeting of the stockholders shall be entitled to cast one (1) vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy as provided in Section 8 of this Article II. The Board of Directors, in its discretion, or the chair of a meeting of the stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot.

 

Section 8.                Proxies. Each stockholder entitled to vote at a meeting of the stockholders or to express consent or dissent to corporate action in writing without a meeting to the extent authorized by the Certificate of Incorporation may authorize another person or persons to act for such stockholder as proxy, but no such proxy shall be voted upon after three years from its date, unless such proxy provides for a longer period. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, the following shall constitute a valid means by which a stockholder may grant such authority:

 

(i)      A stockholder may execute a document (as defined by Section 116(a) of the DGCL) authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished in the manner permitted by the DGCL, including by electronic signature, by the stockholder or such stockholder’s authorized officer, director, employee or agent.

 

(ii)      A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such transmission must either set forth or be submitted with information from which it can be determined that the transmission was authorized by the stockholder. If it is determined that such transmissions are valid, the inspectors or, if there are no inspectors, such other persons making that determination shall specify the information on which they relied.

 

Any copy, facsimile telecommunication or other reliable reproduction of the document (including any electronic transmission) authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original document for any and all purposes for which the original document could be used; provided, however, that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original document.

 

 

Section 9.                Consent of Stockholders in Lieu of Meeting. To the extent permissible pursuant to the Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be executed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. No written consent shall be effective to take the corporate action referred to therein unless written consents signed by a sufficient number of holders to take action are delivered to the Corporation in the manner required by this Section 9 within sixty (60) days of the first date on which a written consent is so delivered to the Corporation. Any person executing a consent may provide, whether through instruction to an agent or otherwise, that such a consent will be effective at a future time (including a time determined upon the happening of an event), no later than sixty (60) days after such instruction is given or such provision is made, if evidence of such instruction or provision is provided to the Corporation. Unless otherwise provided, any such consent shall be revocable prior to its becoming effective. An electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxy holder, or by a person or persons authorized to act for a stockholder or proxy holder, shall be deemed to be written and signed for the purposes of this Section 9, provided that any such electronic transmission sets forth or is delivered with information from which the Corporation can determine (i) that the electronic transmission was transmitted by the stockholder or proxy holder or by a person or persons authorized to act for the stockholder or proxy holder and (ii) the date on which such stockholder or proxy holder or authorized person or persons transmitted such electronic transmission.

 

A consent given by electronic transmission shall be deemed delivered to the Corporation upon the earliest of: (i) when the consent enters an information processing system, if any, designated by the Corporation for receiving consents, so long as the electronic transmission is in a form capable of being processed by that system and the Corporation is able to retrieve that electronic transmission; (ii) when a paper reproduction of the consent is delivered to the Corporation’s principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded; (iii) when a paper reproduction of the consent is delivered to the Corporation’s registered office by hand or by certified or registered mail, return receipt requested; or (iv) when delivered in such other manner, if any, provided by resolution of the Board of Directors. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation as provided above in this Section 9.

 

 

Section 10.            List of Stockholders Entitled to Vote. The Corporation shall prepare, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at the meeting; provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date. Such list shall be arranged in alphabetical order, and show the address of each stockholder and the number of shares registered in the name of each stockholder; provided, that the Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

 

Section 11.            Record Date.

 

(a)          In order that the Corporation may determine the stockholders entitled to notice of any meeting of the stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of the stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix, as the record date for stockholders entitled to notice of such adjourned meeting, the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting in accordance with the foregoing provisions of this Section 11.

 

 

(b)          In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

 

Section 12.            Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by Section 10 of this Article II or the books and records of the Corporation, or to vote in person or by proxy at any meeting of stockholders. As used herein, the stock ledger of the Corporation shall refer to one (1) or more records administered by or on behalf of the Corporation in which the names of all of the Corporation’s stockholders of record, the address and number of shares registered in the name of each such stockholder, and all issuances and transfer of stock of the Corporation are recorded in accordance with Section 224 of the DGCL.

 

Section 13.            Conduct of Meetings. The Board of Directors of the Corporation may adopt by resolution such rules and regulations for the conduct of any meeting of the stockholders as it shall deem appropriate. Meetings of stockholders shall be presided over by the Chair of the Board of Directors, if there shall be one, or in his or her absence, or there shall not be a Chair of the Board of Directors or in his or her absence, the President. The Board of Directors shall have the authority to appoint a temporary chair to serve at any meeting of the stockholders if the Chair of the Board of Directors or the President is unable to do so for any reason. Except to the extent inconsistent with any rules and regulations adopted by the Board of Directors, the chair of any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chair, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chair of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (iii) rules and procedures for maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chair of the meeting shall determine; (v) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi) limitations on the time allotted to questions or comments by stockholders.

 

 

Section 14.            Inspectors of Election. In advance of any meeting of the stockholders, the Board of Directors, by resolution, the Chair of the Board of Directors or the President shall appoint one or more inspectors to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of the stockholders, the chair of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by applicable law, inspectors may be officers, employees or agents of the Corporation. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and shall take charge of the polls and, when the vote is completed, shall execute and deliver to the Corporation a certificate of the result of the vote taken and of such other facts as may be required by applicable law.

 

ARTICLE III

 

DIRECTORS

 

Section 1.                Number and Election of Directors. The Board of Directors shall consist of not less than one nor more than fifteen members, each of whom shall be a natural person, the exact number of which shall initially be fixed by the Incorporator and thereafter from time to time by the Board of Directors. Except as provided in Section 2 of this Article III, directors shall be elected by a plurality of the votes cast at each Annual Meeting of Stockholders and each director so elected shall hold office until the next Annual Meeting of Stockholders and until such director’s successor is duly elected and qualified, or until such director’s earlier death, resignation or removal. Each director shall be a natural person and need not be a stockholder.

 

Section 2.                Vacancies. Unless otherwise required by law or the Certificate of Incorporation, vacancies on the Board of Directors or any committee thereof resulting from the death, resignation or removal of a director, or from an increase in the number of directors constituting the Board of Directors or such committee or otherwise, may be filled only by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. The directors so chosen shall, in the case of the Board of Directors, hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal and, in the case of any committee of the Board of Directors, shall hold office until their successors are duly appointed by the Board of Directors or until their earlier death, resignation or removal.

 

Section 3.                Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation except as may be otherwise provided in the DGCL, the Certificate of Incorporation, these Bylaws or required by the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading.

 

 

Section 4.                Meetings. The Board of Directors and any committee thereof may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors or any committee thereof may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors or such committee, respectively. Special meetings of the Board of Directors may be called by the Chair of the Board of Directors, if there be one, the President, or by any director. Special meetings of any committee of the Board of Directors may be called by the chair of such committee, if there be one, the President, or any director serving on such committee. Notice of any special meeting stating the place, date and hour of the meeting shall be given to each director (or, in the case of a committee, to each member of such committee) not less than twenty-four hours before the date of the meeting, by telephone, or in the form of a writing or electronic transmission, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.

 

Section 5.                Organization. At each meeting of the Board of Directors or any committee thereof, the Chair of the Board of Directors or the chair of such committee, as the case may be, or, in his or her absence or if there be none, a director chosen by a majority of the directors present, shall act as chair of such meeting. Except as provided below, the Secretary of the Corporation shall act as secretary at each meeting of the Board of Directors and of each committee thereof. In case the Secretary shall be absent from any meeting of the Board of Directors or of any committee thereof, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant Secretaries, the chair of the meeting may appoint any person to act as secretary of the meeting. Notwithstanding the foregoing, the members of each committee of the Board of Directors may appoint any person to act as secretary of any meeting of such committee and the Secretary or any Assistant Secretary of the Corporation may, but need not if such committee so elects, serve in such capacity.

 

Section 6.                Resignations and Removals of Directors. Any director of the Corporation may resign from the Board of Directors or any committee thereof at any time, by giving notice in writing or by electronic transmission to the Chair of the Board of Directors, if there be one, the President or the Secretary of the Corporation and, in the case of a committee, to the chair of such committee, if there be one. Such resignation shall take effect when delivered or, if such resignation specifies a later effective time or an effective time, determined upon the happening of an event or events, in which case, such resignation takes effect upon such effective time. Unless otherwise specified in such resignation, the acceptance of such resignation shall not be necessary to make it effective. A resignation which is conditioned upon the director failing to receive a specified vote for reelection as a director may provide that it is irrevocable. Except as otherwise required by applicable law and subject to the rights, if any, of the holders of shares of preferred stock then outstanding, any director or the entire Board of Directors may be removed from office at any time, with or without cause, by the affirmative vote of the holders of at least a majority in voting power of the issued and outstanding capital stock of the Corporation entitled to vote in the election of directors. Any director serving on a committee of the Board of Directors may be removed from such committee at any time by the Board of Directors.

 

Section 7.                Quorum. Except as otherwise required by law, or the Certificate of Incorporation or the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the vote of a majority of the directors or committee members, as applicable, present at any meeting at which there is a quorum shall be the act of the Board of Directors or such committee, as applicable. If a quorum shall not be present at any meeting of the Board of Directors or any committee thereof, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present.

 

 

Section 8.                Emergency Powers.

 

(a)          Emergency Provisions. Notwithstanding any different provision elsewhere in the Certificate of Incorporation or these Bylaws, the provisions of this Section 8 shall be operative during any emergency resulting from an attack on the United States or on a locality in which the corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, including, but not limited to, an epidemic or pandemic, and a declaration of a national emergency by the United States government, or other similar emergency condition, irrespective of whether a quorum of the Board of Directors or a standing committee of the Board of Directors can readily be convened for action.

 

(b)          Call and Notice of Directors’ Meetings. A meeting of the Board of Directors or a committee of the Board of Directors may be called at any time by any officer or director. Notice of any such meeting shall be given at least eight (8) hours prior to the time set for the meeting, but need be given only to such of the directors as it may be feasible to reach at the time and by such means as may be feasible at the time, including publication or radio.

 

(c)          Quorum of Directors. The director or directors in attendance at the meeting shall constitute a quorum. The officers and the members of the management of the corporation who are present shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed, in order of rank and within the same rank in order of seniority, directors for such meeting.

 

(d)          Officers’ Succession. The Board of Directors, either before or during the emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or other agents of the corporation shall for any reason be rendered incapable of discharging their duties.

 

(e)          Change of Office. The Board of Directors, either before or during the emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers to do so.

 

(f)           Other Actions. During any emergency condition of a type described in Section 110(a) of the DGCL, the Board of Directors (or, if a quorum cannot be readily convened for a meeting, a majority of the directors present) may, pursuant to Section 110 of the DGCL:

 

(i)      take any action that it determines to be practical and necessary to address the circumstances of such emergency condition with respect to a meeting of the stockholders, including but not limited to, to postpone any stockholder meeting to a later time or date, or make a change to hold the meeting solely by means of remote communication, and notify stockholders of any postponement or change of place of meeting or a change to hold the meeting solely by means of remote communication, solely by a document publicly filed by the Corporation with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13, 14, or 15(d) of the Exchange Act, and

 

 

(ii)      for any dividend that has been declared but which record date has not occurred, change the record date or payment date or both to a later date or dates. The payment date as so changed may not be more than sixty (60) days after the record date as so changed. Notice of the change must be given to stockholders as promptly as practicable, which may be given solely by a document publicly filed by the Corporation with the SEC pursuant to Section 13, 14, or 15(d) of the Exchange Act.

 

(g)          Liability. No officer, director, or employee acting in accordance with any emergency Bylaw provision shall be liable except for willful misconduct.

 

(h)          Termination. These Bylaws shall remain in effect during any emergency and upon its termination the foregoing emergency Bylaw provisions shall cease to be operative. All emergency Bylaw provisions may be terminated at any time by the consent or direction of a majority of a quorum of the Board of Directors.

 

Section 9.                Actions of the Board by Written Consent. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission. Any person, whether or not then a director, may provide, through instruction to an agent or otherwise, that a consent to action will be effective at a future time (including a time determined upon the happening of an event) no later than sixty (60) days after such instruction is given or such provision is made and such consent shall be deemed to have been given at such effective time so long as such person is then a director and did not revoke the consent prior to such time. Any such consent shall be revocable prior to its becoming effective. After an action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board of Directors, or the committee thereof, in the same paper or electronic form as the minutes are maintained.

 

Section 10.            Meetings by Means of Conference Telephone. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, members of the Board of Directors of the Corporation, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 9 shall constitute presence in person at such meeting.

 

 

Section 11.            Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Each member of a committee must meet the requirements for membership, if any, imposed by applicable law and the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. Subject to the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, in the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another qualified member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any such committee, to the extent permitted by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no such committee shall have the power or authority to (i) approve, adopt, or recommend to the stockholders any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend, or repeal any of these Bylaws. Each committee shall keep regular minutes and report to the Board of Directors when required. Notwithstanding anything to the contrary contained in this Article III, the resolution of the Board of Directors establishing any committee of the Board of Directors and/or the charter of any such committee may establish requirements or procedures relating to the governance and/or operation of such committee that are different from, or in addition to, those set forth in these Bylaws and, to the extent that there is any inconsistency between these Bylaws and any such resolution or charter, the terms of such resolution or charter shall be controlling.

 

Section 12.            Subcommittees. Unless otherwise provided in the Certificate of Incorporation, these Bylaws, or the resolution of the Board of Directors designating a committee, such committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee. Except for references to committees and members of committees in Section 10 of this Article III, every reference in these Bylaws to a committee of the Board of Directors or a member of a committee shall be deemed to include a reference to a subcommittee or member of a subcommittee.

 

Section 13.            Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary for service as director, payable in cash or securities. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for service as committee members.

 

 

Section 14.            Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because any such director’s or officer’s vote is counted for such purpose if: (i) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes such contract or transaction.

 

ARTICLE IV

 

OFFICERS

 

Section 1.                General. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President and a Secretary. The Board of Directors, in its discretion, also may choose a Chair of the Board of Directors (who must be a director), a Treasurer and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chair of the Board of Directors, need such officers be directors of the Corporation.

 

Section 2.                Election. The Board of Directors, at its first meeting held after each Annual Meeting of Stockholders (or action by written consent of stockholders in lieu of the Annual Meeting of Stockholders), shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and each officer of the Corporation shall hold office until such officer’s successor is elected and qualified, or until such officer’s earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors.

 

Section 3.                Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice President or any other officer authorized to do so by the Board of Directors and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation or other entity in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.

 

 

Section 4.                Chair of the Board of Directors. The Chair of the Board of Directors, if there be one, shall preside at all meetings of the stockholders and of the Board of Directors. During the absence or disability of the President, the Chair of the Board of Directors shall exercise all the powers and discharge all the duties of the President. The Chair of the Board of Directors shall also perform such other duties and may exercise such other powers as may from time to time be assigned by these Bylaws or by the Board of Directors.

 

Section 5.                President. The President shall, subject to the oversight and control of the Board of Directors and, if there be one, the Chair of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall be the Chief Executive Officer of the Corporation. The President shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these Bylaws, the Board of Directors or the President. In the absence or disability of the Chair of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and, if the President is also a director, the Board of Directors. If there be no Treasurer, unless the Board of Directors shall otherwise designate, the President shall serve as the Treasurer. The President shall also perform such other duties and may exercise such other powers as may from time to time be assigned to such officer by these Bylaws or by the Board of Directors.

 

Section 6.                Vice Presidents. At the request of the President or in the President’s absence or in the event of the President’s inability or refusal to act (and if there be no Chair of the Board of Directors), the Vice President, or the Vice Presidents if there are more than one (in the order designated by the Board of Directors), shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Chair of the Board of Directors and no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.

 

Section 7.                Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for committees of the Board of Directors when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors, the Chair of the Board of Directors or the President, under whose supervision the Secretary shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest to the affixing by such officer’s signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.

 

 

Section 8.                Treasurer. The Treasurer, if there be one, shall have the custody of the Corporation’s funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors or the President taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office of the Treasurer and for the restoration to the Corporation, in case of the Treasurer’s death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the Treasurer’s possession or under the Treasurer’s control belonging to the Corporation.

 

Section 9.                Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.

 

ARTICLE V

 

STOCK

 

Section 1.                Form of Certificates. Except as otherwise provided in a resolution approved by the Board of Directors, all shares of capital stock of the Corporation shall be uncertificated shares.

 

Section 2.                Lost Certificates. The Board of Directors may direct a new certificate or uncertificated shares be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issuance of a new certificate or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owner’s legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate or the issuance of such new certificate or uncertificated shares.

 

 

Section 3.                Transfers. Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation, and in the case of certificated shares of stock, only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive such requirement. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.

 

Section 4.                Dividend Record Date. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

Section 5.                Record Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by law.

 

Section 6.                Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agencies and registry offices or agencies at such place or places as may be determined from time to time by the Board of Directors.

 

 

ARTICLE VI

 

NOTICES

 

Section 1.                Notices. Whenever written notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, such notice may be given in writing directed to such director’s, committee member’s or stockholder’s mailing address (or by electronic transmission directed to such director’s, committee member’s or stockholder’ electronic mail address, as applicable) as it appears on the records of the Corporation and shall be given: (a) if mailed, when the notice is deposited in the United States mail, postage prepaid, (b) if delivered by courier service, the earlier of when the notice is received or left at such director’s, committee member’s or stockholder’s address or (c) if given by electronic mail, when directed to such director’s, committee member’s or stockholder’s electronic mail address unless such director, committee member or stockholder has notified the corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by the under applicable law, the Certificate of Incorporation or these Bylaws. Without limiting the manner by which notice otherwise may be given effectively to stockholders, but subject to Section 232(e) of the DGCL, any notice to stockholders given by the Corporation under applicable law, the Certificate of Incorporation or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice or electronic transmission to the Corporation. Notice given by electronic transmission, as described above, shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iii) if by any other form of electronic transmission, when directed to the stockholder. Notwithstanding the foregoing, a notice may not be given by an electronic transmission from and after the time that (i) the Corporation is unable to deliver by such electronic transmission two consecutive notices given by the Corporation and (ii) such inability becomes known to the Secretary or an Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice, provided, however, the inadvertent failure to discover such inability shall not invalidate any meeting or other action.

 

Section 2.                Waivers of Notice. Whenever any notice is required, by applicable law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice, or a waiver by electronic transmission by the person or persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting, present in person or represented by proxy, shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any Annual or Special Meeting of Stockholders or any regular or special meeting of the directors or members of a committee of directors need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by law, the Certificate of Incorporation or these Bylaws.

 

 

ARTICLE VII

 

GENERAL PROVISIONS

 

Section 1.                Dividends. Dividends upon the capital stock of the Corporation, subject to the requirements of the DGCL and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board of Directors (or any action by written consent in lieu thereof in accordance with Section 8 of Article III hereof), and may be paid in cash, in property, or in shares of the Corporation’s capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the Corporation, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

 

Section 2.                Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

 

Section 3.                Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

 

Section 4.                Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

 

ARTICLE VIII

 

INDEMNIFICATION

 

Section 1.                Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

 

 

Section 2.                Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

Section 3.                Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made, with respect to a person who is a director or officer of the Corporation at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (iv) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To the extent, however, that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.

 

 

Section 4.                Good Faith Defined. For purposes of any determination under Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to such person by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.

 

Section 5.                Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Section 1 or Section 2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.

 

Section 6.                Expenses Payable in Advance. Expenses (including attorneys’ fees) incurred by a director or officer of the Corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents of the Corporation or by persons serving at the request of the Corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.

 

Section 7.                Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Section 1 and Section 2 of this Article VIII shall be made to the fullest extent permitted by law. A right to indemnification or to advancement of expenses arising under a provision of the Certificate of Incorporation or these Bylaws shall not be eliminated or impaired by an amendment to the Certificate of Incorporation or these Bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify, under the provisions of the DGCL, or otherwise.

 

 

Section 8.                Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power or the obligation to indemnify such person against such liability under the provisions of this Article VIII.

 

Section 9.                Certain Definitions. For purposes of this Article VIII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. The term “another enterprise” as used in this Article VIII shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. For purposes of this Article VIII, references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VIII.

 

Section 10.            Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

 

Section 11.            Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation.

 

Section 12.            Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VIII to directors and officers of the Corporation.

 

ARTICLE IX

 

FORUM FOR ADJUDICATION OF CERTAIN DISPUTES

 

Section 1.                Forum for Adjudication of Certain Disputes. Unless the Corporation consents in writing to the selection of an alternative forum (an “Alternative Forum Consent”), the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a duty (including any fiduciary duty) owed by any current or former director, officer, stockholder, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or any current or former director, officer, stockholder, employee or agent of the Corporation arising out of or relating to any provision of the General Corporation Law of Delaware or the Corporation’s Certificate of Incorporation or Bylaws (each, as in effect from time to time), or (iv) any action asserting a claim against the Corporation or any current or former director, officer, stockholder, employee or agent of the Corporation governed by the internal affairs doctrine of the State of Delaware; provided, however, that, in the event that the Court of Chancery of the State of Delaware lacks subject matter jurisdiction over any such action or proceeding, the sole and exclusive forum for such action or proceeding shall be another state or federal court located within the State of Delaware, in each such case, unless the Court of Chancery (or such other state or federal court located within the State of Delaware, as applicable) has dismissed a prior action by the same plaintiff asserting the same claims because such court lacked personal jurisdiction over an indispensable party named as a defendant therein. Unless the Corporation gives an Alternative Forum Consent, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. Failure to enforce the foregoing provisions would cause the Corporation irreparable harm and the Corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions. Any person or entity purchasing, otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 9.1 of Article IX. The existence of any prior Alternative Forum Consent shall not act as a waiver of the Corporation’s ongoing consent right as set forth above in this Section 9.1 of Article IX with respect to any current or future actions or claims.

 

 

ARTICLE X

 

AMENDMENTS

 

Section 1. Amendments. These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of a meeting of the stockholders or Board of Directors, as the case may be, called for the purpose of acting upon any proposed alteration, amendment, repeal or adoption of new Bylaws. All such alterations, amendments, repeals or adoptions of new Bylaws must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. Any amendment to these Bylaws adopted by stockholders which specifies the votes that shall be necessary for the election of directors shall not be further amended or repealed by the Board of Directors.

 

Section 2. Entire Board of Directors. As used in this Article X and in these Bylaws generally, the term “entire Board of Directors” means the total number of directors which the Corporation would have if there were no vacancies.

 

[Remainder of Page Intentionally Left Blank]

  

 

Exhibit 3.5

 

AMENDED AND RESTATED

 

CERTIFICATE OF INCORPORATION OF

 

MOBILEYE GLOBAL INC.

 

Mobileye Global Inc., a Delaware corporation (the “Corporation”), does hereby certify as follows:

 

1.

The name of the Corporation is Mobileye Global Inc.

 

2.

The Corporation was originally incorporated pursuant to the General Corporation Law of the State of Delaware (as amended from time to time, the “DGCL”) under the name Mobileye Group Inc. and the original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on January 21, 2022, and was amended by the Certificates of Amendment filed with the Secretary of State of the State of Delaware on February 23, 2022 and April 21, 2022 (as so amended, the “Previous Certificate of Incorporation”).

 

3.

This Amended and Restated Certificate of Incorporation (including any Certificate of Designation (as defined below) and as the same may be amended and/or restated from time to time, this “Certificate of Incorporation”) was duly adopted by the Board of Directors of the Corporation (the “Board”) in accordance with Sections 242 and 245 of the DGCL and the sole stockholder of the Corporation adopted this Certificate of Incorporation by written consent in accordance with Section 228 of the DGCL.

 

4.

This Certificate of Incorporation restates, integrates and amends the provisions of the Previous Certificate of Incorporation. Certain capitalized terms used in this Certificate of Incorporation are defined in Article XIV herein.

 

5.

Upon the filing of this Certificate of Incorporation with the Secretary of State of the State of Delaware in accordance with the DGCL, all of the shares of capital stock of the Corporation issued and outstanding prior to the filing of this Certificate of Incorporation, consisting of 100 shares of common stock of the Corporation, par value $0.01 per share (“Old Common Stock”), all of which are owned beneficially by Intel, shall be reclassified and changed into [●] ([●]) shares of validly issued, fully paid and nonassessable Class B Common Stock (as defined below) authorized by subparagraph (a) of Article FOURTH of this Restated Certificate of Incorporation without any action by the holder thereof.

 

6.

The text of the Previous Certificate of Incorporation is hereby amended and restated in its entirety to read as follows:

 

ARTICLE I

 

NAME

 

The name of the Corporation is Mobileye Global Inc.

 

 

ARTICLE II

 

REGISTERED OFFICE AND AGENT

 

The address of the registered office of the Corporation in the State of Delaware is 251 Little Falls Drive, Wilmington, County of New Castle, 19808. The name of its registered agent at that address is Corporation Service Company.

 

ARTICLE III

 

PURPOSE

 

The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized and incorporated under the DGCL, subject to the limitations and other restrictions contained herein.

 

ARTICLE IV

 

CAPITAL STOCK

 

A.            The Corporation shall be authorized to issue [●] ([●]) shares of capital stock, of which (i) [●] ([●]) shares shall be shares of Class A Common Stock, par value $0.01 per share (the “Class A Common Stock”), (ii) [●] ([●]) shares shall be shares of Class B Common Stock, par value $0.01 per share (the “Class B Common Stock” and, together with the Class A Common Stock, the “Common Stock”), and (iii) [●] ([●]) shares shall be shares of Preferred Stock, par value $0.01 per share (the “Preferred Stock”). Subject to the approval rights of the holders of the Class B Common Stock under Article VI of this Certificate of Incorporation, the number of authorized shares of Class A Common Stock, Class B Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding and, in the case of Class A Common Stock, a sufficient number of shares of Class A Common Stock that may be issuable upon the conversion of all outstanding shares of Class B Common Stock) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of the Class A Common Stock, the Class B Common Stock or the Preferred Stock voting separately as a class shall be required therefor, unless a vote of any such holders is required pursuant to the terms of any Certificate of Designation.

 

B.            Shares of Preferred Stock may be issued from time to time in one or more series. The Board is hereby authorized by resolution or resolutions to provide for series of Preferred Stock to be issued and, by filing a certificate pursuant to the DGCL (a “Certificate of Designation”), to fix the number of shares constituting such series, and to increase or decrease the number of shares of any such series (but not below the number of shares thereof then outstanding), and with respect to each such series, to fix the voting powers, if any, designations, preferences and the relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of any such series. The authority of the Board with respect to each series of Preferred Stock shall include, but not be limited to, determination of the following:

 

(i)            the designation of the series, which may be by distinguishing number, letter or title;

 

 

(ii)            the number of shares of the series, which number the Board may thereafter increase or decrease (but not below the number of shares thereof then outstanding);

 

(iii)            whether dividends, if any, shall be cumulative or noncumulative and the dividend rate of the series;

 

(iv)            dates at which dividends, if any, shall be payable;

 

(v)            the redemption rights and price or prices, if any, for shares of the series;

 

(vi)            the terms and amount of any sinking fund provided for the purchase or redemption of shares of the series;

 

(vii)            the amounts payable on, and the preferences, if any, of shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation;

 

(viii)            whether the shares of the series shall be convertible into shares of any other class or series, or any other security, of the Corporation or any other entity, and, if so, the specification of such other class or series of such other security, the conversion price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible and all other terms and conditions upon which such conversion may be made;

 

(ix)            restrictions on the issuance of shares of the same series or of any other class or series;

 

(x)            the voting powers, if any, of the holders of shares of the series; and

 

(xi)            such other powers, privileges, preferences and rights, and qualifications, limitations and restrictions thereof, as the Board shall determine.

 

C.            The voting powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations and restrictions of the Class A Common Stock and Class B Common Stock are as follows:

 

(i)            Except as otherwise set forth below in this Article IV and in Article VII, the voting powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, of the Class A Common Stock and Class B Common Stock shall be identical in all respects.

 

(ii)            Subject to the other provisions of this Certificate of Incorporation, including the provisions of any Certificate of Designation, the holders of Common Stock shall be entitled to receive such dividends and other distributions, in cash, stock of any entity or property of the Corporation, when and as may be declared thereon by the Board from time to time out of assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in all such dividends and other distributions. No such dividend or distribution that is payable in shares of Common Stock, including distributions pursuant to stock splits or divisions of Common Stock, or dividends payable in rights to acquire, or securities convertible or exercisable or exchangeable for, shares of Class A Common Stock or Class B Common Stock may be made unless: (a) shares of Class A Common Stock are paid or distributed only in respect of Class A Common Stock, (b) shares of Class B Common Stock are paid or distributed only in respect of Class B Common Stock, (c) no such dividend or distribution is made in respect of the Class A Common Stock unless simultaneously also made in respect of the Class B Common Stock, (d) no such dividend or distribution is made in respect of the Class B Common Stock unless simultaneously also made in respect of the Class A Common Stock and (e) the number of shares of Class A Common Stock paid or distributed in respect of each outstanding share of Class A Common Stock is equal to the number of shares of Class B Common Stock paid or distributed in respect of each outstanding share of Class B Common Stock.

 

 

(iii)      (a)      Except as may be otherwise required by law or by this Certificate of Incorporation and subject to any voting rights that may be granted to holders of Preferred Stock pursuant to the provisions of a Certificate of Designation, all rights to vote and all voting power of the capital stock of the Corporation, whether for the election of directors or any other matter submitted to a vote of stockholders of the Corporation, shall be vested exclusively in the holders of Common Stock.

 

(b)            Except as may be otherwise required by law or by this Certificate of Incorporation, at every meeting of the stockholders of the Corporation, in connection with the election of directors and on all other matters submitted to a vote of the stockholders of the Corporation generally, (A) every holder of record of Class A Common Stock shall be entitled to one (1) vote for each share of Class A Common Stock held in such holder’s name on the stock ledger of the Corporation, and (B) every holder of record of Class B Common Stock shall be entitled to ten (10) votes for each share of Class B Common Stock held in such holder’s name on the stock ledger of the Corporation. Except as may be otherwise required by law or by this Certificate of Incorporation, the holders of Class A Common Stock and the holders of Class B Common Stock shall vote together as a single class in connection with the election of directors, all other matters submitted to a vote of the stockholders of the Corporation generally and any other matters on which the holders of the Class A Common Stock and Class B Common Stock are required or permitted to vote, and the votes cast in respect of the Class A Common Stock and the Class B Common Stock shall be counted and totaled together. Notwithstanding the foregoing, but subject to any applicable approval rights of the holders of the Class B Common Stock under Article VI of this Certificate of Incorporation and except as otherwise required by applicable law, holders of the Class A Common Stock and Class B Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other series of Preferred Stock, to vote thereon pursuant to this Certificate of Incorporation or applicable law.

 

(c)            Every reference in this Certificate of Incorporation or the Bylaws (as defined below) to a majority or other proportion of shares, or a majority or other proportion of the votes of shares, of Common Stock, Class A Common Stock, or Class B Common Stock shall refer to such majority or other proportion of the votes to which such shares of Common Stock, Class A Common Stock or Class B Common Stock entitle their holders to cast as provided in this Certificate of Incorporation.

 

 

(iv)            In the event of any dissolution, liquidation or winding up of the affairs of the Corporation, whether voluntary or involuntary, after payment in full of the amounts required to be paid to the holders of Preferred Stock pursuant to the provisions of a Certificate of Designation, the remaining assets and funds of the Corporation shall be distributed pro rata to the holders of Common Stock, and the holders of Class A Common Stock and the holders of Class B Common Stock shall be entitled to receive the same amount per share in respect thereof.

 

(v)            In connection with any reorganization of the Corporation, any consolidation of the Corporation with one or more other entities or any merger of the Corporation with or into another entity, the holders of each share of Class A Common Stock and Class B Common Stock shall be entitled to receive the same per share consideration as the per share consideration, if any, received by the holders of each share of such other class of Common Stock, and any securities issued to the holders of shares of Class A Common Stock and Class B Common Stock as consideration in such transaction may entitle the holders thereof to voting powers in the same ratio as applies between the shares of Class A Common Stock and Class B Common Stock. In the event that the holders of Class A Common Stock or of Class B Common Stock are granted rights to elect to receive one of two or more alternative forms of consideration in connection with such merger or consolidation, the foregoing provision shall be deemed satisfied if holders of Class A Common Stock and holders of Class B Common Stock are granted substantially identical election rights.

 

(vi)      (a)      The holders of Class A Common Stock shall not be entitled to convert any share of Class A Common Stock into any other security of the Corporation or any other property. Prior to the date of a Distribution, each holder of Class B Common Stock shall be entitled to convert at such holder’s option, at any time and from time to time, any share of Class B Common Stock into one (1) fully paid and non-assessable share of Class A Common Stock.

 

(b)            Prior to the date of a Distribution, each outstanding share of Class B Common Stock shall immediately and automatically (without any action on the part of the holder or the Corporation) convert into one (1) fully paid and non-assessable share of Class A Common Stock upon any transfer of such share (other than, for the avoidance of doubt, a transfer that constitutes a Distribution) if, after such transfer, such share is not beneficially owned by Intel. Following a Distribution, shares of Class B Common Stock shall no longer convert into shares of Class A Common Stock upon any subsequent transfer.

 

(c)            Each outstanding share of Class B Common Stock shall immediately and automatically (without any action on the part of the holder or the Corporation) convert into one (1) fully paid and nonassessable share of Class A Common Stock automatically on the Threshold Date; provided, however, that as of such date, a Distribution has not occurred. The Corporation shall provide notice of such conversion of the shares of Class B Common Stock pursuant to this sub-clause (c) of this clause (vi) of this Section C to holders of record of such shares of Common Stock as soon as practicable following such conversion stating the date of such conversion; provided, however, that the Corporation may satisfy such notice requirements by providing such notice prior to such conversion. Such notice shall be provided by any means then permitted by the DGCL; provided, however, that no failure to give such notice nor any defect therein shall affect the validity of the conversion of the shares of Class B Common Stock.

 

 

(d)            Notwithstanding anything to the contrary, following a Distribution, the Corporation may submit to its stockholders for approval a proposal to convert each outstanding share of Class B Common Stock into one (1) fully paid and nonassessable share of Class A Common Stock; provided, however, that subject to approval by the stockholders, such conversion shall be effected by the Corporation only if the Corporation has received either (i) a favorable private letter ruling from the Internal Revenue Service, or (ii) an opinion of a law or accounting firm of national reputation, in each case, satisfactory to Intel in its sole and absolute discretion, to the effect that such conversion will not affect the intended tax treatment of the Distribution. For purposes of this sub-clause (d) of this clause (vi) of this Section C, the holders of Class A Common Stock and the holders of Class B Common Stock shall vote together as a single class and every holder of Class A Common Stock and every holder of Class B Common Stock shall be entitled to one (1) vote for each share of Common Stock held in such holder’s name on the stock ledger of the Corporation, and no vote of the holders of the Class A Common Stock or the Class B Common Stock voting separately as a class shall be required therefor.

 

(e)            Immediately upon any conversion of shares of Class B Common Stock into shares of Class A Common Stock pursuant to this clause (vi) of this Section C, the rights of the holders of such shares of Class B Common Stock as such shall cease and such shares of Class B Common Stock shall be extinguished, and such holders shall be treated for all purposes as having become the record holders of the shares of Class A Common Stock into which such holders’ shares of Class B Common Stock were converted.

 

(f)            If the date on which any share of Class B Common Stock is converted into a share of Class A Common Stock pursuant to this clause (vi) of this Section C is (A) after the record date for the determination of the holders of Class B Common Stock entitled to receive any dividend and (B) prior to the date on which such dividend is to be paid to such holders, the holder of the share of Class B Common Stock so converted as of such record date will be entitled to receive such dividend on such payment date, provided, however, that to the extent that such dividend is payable in shares of Class B Common Stock or in rights to acquire, or securities convertible or exercisable or exchangeable for, shares of Class B Common Stock, such shares of Class B Common Stock shall also be deemed to have so converted into an equivalent number of shares of Class A Common Stock as of the date of such conversion such that no such shares of Class B Common Stock shall be issued in payment thereof and, in lieu thereof, such dividend shall instead be paid in a number of shares of Class A Common Stock equal to the number of shares of Class B Common Stock that would have otherwise been issued as part of such dividend.

 

(g)            The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock, solely for the purpose of issuance upon conversion of outstanding shares of Class B Common Stock, such number of shares of Class A Common Stock that shall be issuable upon the conversion of all such outstanding shares of Class B Common Stock.

 

 

(h)            The Corporation shall not reissue or resell any shares of Class B Common Stock that are converted into shares of Class A Common Stock pursuant to this clause (vi) of this Section C or that are acquired by the Corporation in any other manner. The Corporation shall, from time to time, take such appropriate action as may be necessary to retire such shares and to reduce the authorized number of shares of Class B Common Stock accordingly.

 

(vii)            The holders of shares of Common Stock are not entitled to any preemptive right to subscribe for, purchase or receive any part of any new or additional issue of stock of any class or series of the Corporation, whether now or hereafter authorized, or of bonds, debentures or other securities convertible into or exchangeable for stock of the Corporation.

 

(viii)            No stockholder shall be entitled to exercise any right of cumulative voting.

 

ARTICLE V

 

CORPORATE OPPORTUNITIES

 

A.            In anticipation that the Corporation and Intel may engage in the same or similar activities or lines of business and have an interest in the same areas of corporate opportunities, and in recognition of the benefits to be derived by the Corporation through its continued contractual, corporate and business relations with Intel (including service of officers and/or directors of Intel as officers and/or directors of the Corporation), and in addition to and subject to the limitations set forth in Article VI, the provisions of this Article V are set forth to regulate and define the conduct of certain affairs of the Corporation as they may involve Intel and its officers and directors, and the powers, rights, duties and liabilities of the Corporation and its officers, directors and stockholders in connection therewith.

 

B.            No contract, agreement, arrangement or transaction between the Corporation and Intel shall be void or voidable solely for the reason that Intel is a party thereto, and Intel: (i) shall be deemed to have fully satisfied and fulfilled any duties to the Corporation and its stockholders with respect thereto; (ii) shall not be liable to the Corporation or its stockholders for any breach of fiduciary duty by reason of the entering into, performance or consummation of any such contract, agreement, arrangement or transaction; (iii) shall be deemed to have acted in good faith and in a manner it reasonably believed to be in and not opposed to the best interests of the Corporation; and (iv) shall be deemed not to have breached any duties of loyalty to the Corporation or its stockholders and not to have received an improper personal gain therefrom, in each case to the fullest extent permitted by applicable law, if the material facts as to the contract, agreement, arrangement or transaction are disclosed or are known to the Board or the committee thereof that authorizes the contract, agreement, arrangement or transaction, and the Board or such committee in good faith authorizes the contract, agreement, arrangement or transaction by the affirmative vote of a majority of the disinterested directors, even though less than a quorum. Directors and/or officers of the Corporation who are also directors and/or officers of Intel may be counted in determining the presence of a quorum at a meeting of the Board or of a committee that authorizes the contract, agreement, arrangement or transaction.

 

 

C.            Intel shall have the right to, and shall have no duty not to (i) engage in the same or similar business activities or lines of business as the Corporation, (ii) do business with any client or customer of the Corporation and (iii) employ or otherwise engage any officer or employee of the Corporation, and the Corporation hereby renounces any interest or expectancy in any such activities and shall not be deemed to have an interest or expectancy in any such activities merely because the Corporation engages in the same or similar activities or otherwise. To the fullest extent permitted by applicable law, neither Intel nor any officer or director thereof (except as provided in Section D of this Article V) shall be liable to the Corporation or its stockholders for breach of any fiduciary duty by reason of any such activities of Intel or of such person’s participation therein. Subject to the provisions of Section D of this Article V, in the event that Intel acquires knowledge of a potential transaction or matter which may be a corporate opportunity for both Intel and the Corporation, Intel shall have no duty to communicate or present such corporate opportunity to the Corporation, and the Corporation, to the fullest extent permitted by law, hereby renounces any interest or expectancy in such corporate opportunity and waives any claim that such corporate opportunity should have been presented to the Corporation. Subject to the provisions of Section D of this Article V, Intel shall not be liable to the Corporation or its stockholders for breach of any fiduciary duty as a stockholder of the Corporation by reason of the fact that Intel pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another Person or does not present such corporate opportunity to the Corporation.

 

D.            To the fullest extent permitted by applicable law, in the event that a director or officer of the Corporation who is also a director or officer of Intel acquires knowledge of a potential transaction or matter which may be a corporate opportunity for both the Corporation and Intel and which may be properly pursued by the Corporation consistent with the provisions of Article VI hereof, such director or officer of the Corporation (i) shall be deemed to have fully satisfied and fulfilled such person’s fiduciary duty to the Corporation and its stockholders with respect to such corporate opportunity, (ii) shall not be liable to the Corporation or its stockholders for any breach of fiduciary duty by reason of the fact that Intel pursues or acquires such corporate opportunity for itself or directs such corporate opportunity to another Person or does not present such corporate opportunity to the Corporation, (iii) shall be deemed to have acted in good faith and in a manner such person reasonably believes to be in and not opposed to the best interests of the Corporation for the purposes of Article XI hereof and the other provisions of this Certificate of Incorporation, and (iv) shall be deemed not to have breached such person’s duty of loyalty to the Corporation or its stockholders or to have received an improper personal gain therefrom for the purposes of Article XI hereof and the other provisions of this Certificate of Incorporation, if such director or officer acts in good faith in a manner consistent with the following policy:

 

(w)            where a corporate opportunity is offered to a person who is a director and/or officer of the Corporation and who is also a director and/or officer of Intel, the Corporation shall be entitled to pursue such opportunity only if such opportunity is expressly offered to such person solely in his or her capacity as a director and/or officer, as applicable, of the Corporation (and to the extent any such opportunity is not so expressly offered to such person in such capacity, the Corporation hereby renounces any interest or expectancy in such opportunity); and

 

 

(x)            if an officer and/or director of the Corporation, who also serves as an officer and/or director of Intel, acquires knowledge of a potential transaction or matter which may be a corporate opportunity for both the Corporation and Intel in any manner not addressed by Article V, Section D, clause (w), such officer or director shall have no duty to communicate or present such corporate opportunity to the Corporation and shall to the fullest extent permitted by law not be liable to the Corporation or its stockholders for breach of fiduciary duty as an officer or director of the Corporation by reason of the fact that Intel pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another Person or does not present such corporate opportunity to the Corporation, and the Corporation to the fullest extent permitted by law renounces any interest or expectancy in such business opportunity and waives any claim that such business opportunity constituted a corporate opportunity that should be presented to the Corporation.

 

The provisions of this Section D are not intended to be an exhaustive statement of corporate opportunities which may be available to the Corporation, pursuit of which shall be in accordance with this Certificate of Incorporation and applicable law.

 

E.            For purposes of this Article V and Article VI, “Corporation” means the Corporation and all corporations, partnerships, joint ventures, limited liability companies, trusts, associations and other entities in which the Corporation owns (directly or indirectly) fifty percent (50%) or more of the outstanding voting stock, voting power, partnership interests, limited liability company interests or similar ownership interests.

 

F.            Any Person purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article V.

 

G.            Section A, Section C and Section D of this Article V shall become inoperative and of no effect on the later of (i) the Threshold Date and (ii) the date upon which no officer and/or director of the Corporation is also an officer and/or director of Intel. Neither the alteration, amendment, termination or repeal of this Article V nor the adoption of any provision inconsistent with this Article V shall eliminate or reduce the effect of this Article V in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article V would accrue or arise, prior to such alteration, amendment, termination, repeal or adoption. Following the later of (i) the Threshold Date and (ii) the date upon which no officer and/or director of the Corporation is also an officer and/or director of Intel, any contract, agreement, arrangement or transaction involving a corporate opportunity not approved or allocated as provided in this Article V shall not by reason thereof result in any breach of any fiduciary duty or duty of loyalty or failure to act in good faith or in the best interests of the Corporation or derivation of any improper personal gain, but shall be governed by the other provisions of this Certificate of Incorporation, the Amended and Restated Bylaws of the Corporation (as amended and/or restated from time to time, the “Bylaws”), the DGCL and other applicable law.

 

 

ARTICLE VI

 

CONSENT OF HOLDERS OF CLASS B COMMON STOCK

 

A.            In addition to any other vote required by law or by this Certificate of Incorporation, prior to the Threshold Date, the prior affirmative vote of the holders of a majority of the outstanding shares of the Class B Common Stock, voting separately as a class, shall be required to authorize the Corporation to and, in the case of clauses (iii) through (x), below to authorize or permit any Subsidiary, in each case whether directly or indirectly and whether by merger, consolidation, division, operation of law or otherwise, to:

 

(i)            adopt or implement any stockholder rights plan or similar takeover defense measure;

 

(ii)            consolidate or merge with or into any Person;

 

(iii)            permit any Subsidiary to consolidate or merge with or into any Person (other than (a) a consolidation or merger of a Wholly-Owned Subsidiary with or into the Corporation or with or into another Wholly-Owned Subsidiary or (b) in connection with a Permitted Acquisition);

 

(iv)            directly or indirectly acquire Stock, Stock Equivalents or assets (including, without limitation, any business or operating unit) of any Person (other than the Corporation or its Subsidiaries), in each case in a single transaction or series of related transactions, involving consideration (whether in cash, securities, assets or otherwise, and including Indebtedness assumed by the Corporation or any of its Subsidiaries and Indebtedness of any entity so acquired) paid or delivered by the Corporation and its Subsidiaries in excess of $250,000,000; provided, however, that this clause (iv) of this Section A shall not require the vote of the holders of Class B Common Stock in connection with transactions to which the Corporation and one or more Wholly-Owned Subsidiaries are the only parties;

 

(v)            issue any Stock or any Stock Equivalents, except (a) the issuance of shares of Stock of a Wholly-Owned Subsidiary of the Corporation to the Corporation or another Wholly-Owned Subsidiary of the Corporation, (b) pursuant to the Initial Public Offering or in private placement transactions after the filing of the IPO Registration Statement and occurring substantially concurrent with or prior to the closing of the Initial Public Offering, or (c) the issuance of shares of Class A Common Stock or options or other rights to purchase or acquire Class A Common Stock pursuant to employee benefit plans or programs, including in connection with any exchange offer that occurs at the time of or substantially concurrent with the Initial Public Offering, or dividend reinvestment plans approved by the Board (provided, however, that notwithstanding the provision of this clause (c), the prior affirmative vote of the holders of a majority of the outstanding shares of the Class B Common Stock, voting separately as a class, shall be required to authorize any increase in the number of shares reserved and available for issuance under such employee benefit plans or programs in any year in excess of 5% of the outstanding number of shares of Class B Common Stock and Class A Common Stock on the immediately preceding December 31);

 

 

(vi)            make or commit to make any individual or series of related capital or other expenditures in excess of $250,000,000;

 

(vii)            create, incur, assume or permit to exist any Indebtedness or guarantee the Indebtedness of any other Person, or permit any Subsidiary to create, incur, assume or permit to exist any Indebtedness or guarantee any Indebtedness of any other Person, in excess of an aggregate principal amount at any time outstanding of $250,000,000;

 

(viii)            make any loan to any other Person or purchase any debt securities of any other Person, in excess of an aggregate principal amount at any time outstanding of $250,000,000;

 

(ix)            redeem, purchase or otherwise acquire (or pay into or set aside funds for a sinking fund for such purpose) any shares of Stock or Stock Equivalents of the Corporation or a Subsidiary (other than a Wholly-Owned Subsidiary); provided, however, that this restriction shall not apply to the repurchase of shares of Common Stock from employees, officers, directors, consultants or other Persons performing services for the Corporation or any Wholly-Owned Subsidiary pursuant to agreements under which the Corporation has the option to repurchase such shares upon the occurrence of certain events, such as the termination of employment, or through the exercise of any right of first refusal or the conversion or reclassification of any shares of Class B Common Stock pursuant to clause (vi) of Article IV, Section C;

 

(x)            dissolve, liquidate or wind up;

 

(xi)            declare dividends on any class or series of the capital stock of the Corporation;

 

(xii)            alter, amend, change, terminate or repeal, or adopt any provision inconsistent with this Certificate of Incorporation or the Bylaws.

 

B.            For purposes of this Article VI and Article VII:

 

(i)            “Indebtedness” means, with respect to any Person, any liability of such Person in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments and shall also include (a) any liability of such Person under any agreement related to the fixing of interest rates on any Indebtedness and (b) any capitalized or finance lease obligations of such Person (if and to the extent the same would appear on a balance sheet of such Person prepared in accordance with United States generally accepted accounting principles).

 

(ii)            “Initial Public Offering” means an initial public offering of Class A Common Stock as contemplated by a Registration Statement on Form S-1 filed with the U.S. Securities and Exchange Commission (the “IPO Registration Statement”).

 

(iii)            “Permitted Acquisition” means any acquisition by the Corporation or any of its Subsidiaries of Stock, Stock Equivalents or assets (including, without limitation, any business or operating unit) of any Person not requiring the prior affirmative vote of the holders of the Class B Common Stock pursuant to clause (iv) of Section A of this Article VI.

 

 

(iv)            “Stock” means shares of capital stock (whether denominated as common stock or preferred stock), beneficial, partnership, limited liability company or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company, joint venture, trust, associations or other entity, whether voting or non-voting.

 

(v)            “Stock Equivalents” means all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable, and all voting debt.

 

(vi)            “Wholly-Owned Subsidiary” means each Subsidiary in which the Corporation owns (directly or indirectly) all of the outstanding voting Stock, voting power, partnership interests or similar ownership interests, except for director’s qualifying shares in nominal amount.

 

C.            The Corporation shall not undertake any action or conduct that would have the effect of indirectly engaging the Corporation in activities that the provisions of this Article VI would otherwise prohibit.

 

D.            Any Person purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article VI.

 

E.            Neither the alteration, amendment or repeal of this Article VI nor the adoption of any provision inconsistent with this Article VI shall eliminate or reduce the effect of this Article VI in respect of any matter occurring, or any cause of action, suit or claim that, but for this Article VI, would accrue or arise, prior to such alteration, amendment, repeal or adoption.

 

ARTICLE VII

 

BOARD OF DIRECTORS

 

A.            The business and affairs of the Corporation shall be managed by or under the direction of the Board. The Board shall consist of no less than five directors. Subject to the limitation in the preceding sentence, the number of directors shall be determined from time to time solely by resolution adopted by affirmative vote of a majority of the entire Board which the Corporation would have if there were no vacancies at the time such resolution is adopted.

 

B.            Elections of the members of the Board shall be held annually at the annual meeting of stockholders and each member of the Board shall hold office until the next annual meeting of stockholders and until such director’s successor is elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Elections of the members of the Board need not be by written ballot unless the Bylaws shall so provide.

 

C.            Any newly created directorship on the Board that results from an increase in the number of directors and any other vacancy occurring on the Board shall be filled by the affirmative vote of a majority of the Board then in office, even if less than a quorum, or by a sole remaining director; provided, however, that prior to the Majority Date, any vacancy or newly created directorship caused by an action of the stockholders shall be filled only by a vote of the stockholders. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of his or her predecessor. No decrease in the number of directors shall shorten the term of any incumbent director.

 

 

D.            Notwithstanding anything to the contrary, from the time of the Classified Annual Meeting, the directors shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board. The term of the initial Class I directors shall terminate on the date of the first annual meeting of stockholders following the Classified Annual Meeting. The term of the initial Class II directors shall terminate on the date of the second annual meeting of stockholders following the Classified Annual Meeting. The term of the initial Class III directors shall terminate on the date of the third annual meeting of stockholders following the Classified Annual Meeting. At the first annual meeting of stockholders following the Classified Annual Meeting and each succeeding annual meeting of stockholders, successors to the class of directors whose term expires at such annual meeting of stockholders shall be elected for a three-year term. If the number of directors is changed following the Classified Annual Meeting, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of directors shorten the term of any incumbent director.

 

E.            Any director may be removed from office at any time, with or without cause, until the Classified Annual Meeting, and then only with cause, in each case, by the affirmative vote of the holders of shares of capital stock of the Corporation representing at least a majority of the votes entitled to be cast on the election of such director.

 

F.            Advance notice of stockholder nominations for the election of directors and stockholder proposals for business to be conducted at any meeting of stockholders shall be given in the manner provided in the Bylaws.

 

G.            The books and records of the Corporation may be kept (subject to any mandatory requirement of law) outside the State of Delaware at such place or places (and/or on, by means of or in the form of any information storage device, method or one or more electronic networks or databases (including one or more distributed electronic networks or databases) in accordance with Section 224 of the DGCL).

 

ARTICLE VIII

 

STOCKHOLDER ACTION

 

A.            Any action required or permitted to be taken by stockholders at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding capital stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of capital stock entitled to vote thereon were present and voted; provided, however, that except as otherwise provided by a Certificate of Designation, from and after the Majority Date, any action required or permitted to be taken by stockholders may be effected only at a duly called annual or special meeting of stockholders and may not be effected by a written consent or consents by stockholders in lieu of such a meeting.

 

 

B.            Except as otherwise required by law or provided by a Certificate of Designation, special meetings of stockholders of the Corporation may be called only by (1) the Chair of the Board, (2) the Chief Executive Officer or (3) the Secretary of the Corporation upon written request to the Secretary of the Corporation by a majority of the directors then in office. No business other than that stated in the notice of a special meeting of stockholders shall be transacted at such special meeting.

 

ARTICLE IX

 

AMENDMENT OF BYLAWS AND CERTIFICATE OF INCORPORATION

 

A.            In furtherance and not in limitation of the powers conferred by law, the Board is expressly authorized and empowered to adopt, amend and repeal the Bylaws at any regular or special meeting of the Board or by written consent, subject to the power of the stockholders of the Corporation to adopt, amend or repeal any Bylaws. The stockholders shall have the power to make, amend or repeal the Bylaws.

 

B.            Except as otherwise provided in this Certificate of Incorporation, the Corporation reserves the right to amend and repeal any provisions contained in this Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware, and all rights of stockholders shall be subject to this reservation.

 

ARTICLE X

 

section 203 of the dgcl

 

A.            The Corporation shall not be governed by Section 203 of the DGCL (“Section 203”), and the restrictions contained in Section 203 shall not apply to the Corporation, until the first date on which Intel ceases to own (as defined in Section 203) shares of voting stock (as defined in Section 203) representing at least fifteen percent (15%) of the votes entitled to be cast by the holders of the outstanding shares of voting stock (as defined in Section 203), voting together as a single class. The Corporation shall thereafter be governed by Section 203 if and for so long as Section 203 by its terms shall apply to the Corporation.

 

ARTICLE XI

 

LIMITATIONS ON LIABILITY AND INDEMNIFICATION

 

A.            A director or officer of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer, respectively, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any repeal or modification of this Section A shall not adversely affect any right or protection of a director or officer of the Corporation existing hereunder with respect to any act or omission occurring prior to such repeal or modification.

 

 

B.            The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted by applicable law, as now or hereafter in effect, and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided, however, that except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors. The right to indemnification conferred by this Article XI shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition upon receipt by the Corporation of an undertaking by or on behalf of the director or officer receiving advancement to repay the amount advanced if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation under this Article XI.

 

C.            The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article XI to directors and officers of the Corporation.

 

D.            The rights to indemnification and to the advancement of expenses conferred in this Article XI shall not be exclusive of any other right which any person may have or hereafter acquire under this Certificate of Incorporation, the Bylaws of the Corporation, any statute, agreement, vote of stockholders or disinterested directors or otherwise.

 

E.            Any repeal or modification of this Article XI by the stockholders of the Corporation shall not adversely affect any rights to indemnification and to the advancement of expenses of a director, officer, employee or agent of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification.

 

ARTICLE XII

 

FORUM FOR ADJUDICATION OF CERTAIN DISPUTES

 

A.            Unless the Corporation consents in writing to the selection of an alternative forum (an “Alternative Forum Consent”), the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a duty (including any fiduciary duty) owed by any current or former director, officer, stockholder, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation or any current or former director, officer, stockholder, employee or agent of the Corporation arising out of or relating to any provision of the DGCL, this Certificate of Incorporation or the Bylaws (each, as in effect from time to time), or (iv) any action asserting a claim against the Corporation or any current or former director, officer, stockholder, employee or agent of the Corporation governed by the internal affairs doctrine of the State of Delaware; provided, however, that the provisions of this Article XII will not apply to suits brought to enforce any liability or duty created by the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or the rules and regulations under the Exchange Act, or any other claim for which the U.S. federal courts have exclusive jurisdiction; provided, further, that in the event that the Court of Chancery of the State of Delaware lacks subject matter jurisdiction over any such action or proceeding, the sole and exclusive forum for such action or proceeding shall be another state or federal court located within the State of Delaware, in each such case, unless the Court of Chancery (or such other state or federal court located within the State of Delaware, as applicable) has dismissed a prior action by the same plaintiff asserting the same claims because such court lacked personal jurisdiction over an indispensable party named as a defendant therein. Unless the Corporation gives an Alternative Forum Consent, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. Failure to enforce the foregoing provisions would cause the Corporation irreparable harm and the Corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions. Any person or entity purchasing, otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XII. The existence of any prior Alternative Forum Consent shall not act as a waiver of the Corporation’s ongoing consent right as set forth above in this Article XII with respect to any current or future actions or claims.

 

 

ARTICLE XIII

 

SEVERABILITY

 

A.            If any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired thereby.

 

ARTICLE XIV

 

CERTAIN DEFINITIONS

 

For purposes of this Certificate of Incorporation:

 

A.            “beneficial owner” and “beneficial ownership” have the meaning ascribed to such terms in Rule 13d-3 under the Exchange Act, but shall not include shares of Common Stock beneficially owned by Intel but not for its own account, including (in such exclusion) beneficial ownership which arises by virtue of some entity that is an affiliate of Intel being a sponsor or advisor of a mutual or similar fund that beneficially owns shares of Common Stock.

 

 

B.            “Classified Annual Meeting” shall mean the first annual meeting of stockholders following the Threshold Date.

 

C.            “Distribution” means a distribution or other transfer of the Class B Common Stock by Intel to holders of stock of Intel in a transaction intended to qualify for non-recognition of gain and loss under Section 355 of the Internal Revenue Code of 1986, as amended (or any corresponding provisions of any successor statute).

 

D.            “Intel” means Intel Corporation and all Intel Subsidiaries.

 

E.            “Intel Subsidiary” means any corporation, limited liability company, joint venture, partnership, trust, association or other entity in which Intel: (i) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (a) the total combined voting power of all classes of voting securities of such entity, (b) the total combined equity interests, or (c) the capital or profits interest, in the case of a partnership; or (ii) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body, but in each case shall not include the Corporation or any Subsidiary of the Corporation.

 

F.            “Majority Date” means the first date on which Intel ceases to beneficially own shares of Common Stock representing at least a majority of the votes entitled to be cast by the holders of the outstanding shares of Class A Common Stock and Class B Common Stock, voting together as a single class.

 

G.            “Person” means any individual, partnership, joint venture, limited liability company, firm, corporation, trust or other entity, including governmental authorities.

 

H.            “Pledge” means any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in, attaching or applicable to, affecting or otherwise in respect of any share of Class B Common Stock, whether or not filed, recorded or otherwise perfected under applicable law, created, incurred or existing pursuant to any bona fide loan or indebtedness transaction or other bona fide obligation.

 

I.            “Subsidiary” means, with respect to the Corporation, any corporation, limited liability company, joint venture, partnership, trust, association or other entity in which the Corporation: (i) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (a) the total combined voting power of all classes of voting securities of such entity, (b) the total combined equity interests, or (c) the capital or profits interest, in the case of a partnership; or (ii) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body.

 

J.            “Threshold Date” means the first date on which Intel ceases to beneficially own twenty percent (20%) or more of the aggregate number of shares of then outstanding Common Stock.

 

 

K.            “transfer” for purposes of Article IV means any sale or other disposition of a share of Class B Common Stock, except that “transfer” does not include any Pledge of a share of Class B Common Stock for so long as the owner of such share of Class B Common Stock continues to exercise voting control over such share of Class B Common Stock (with a power of attorney or proxy given by such owner to another Person in connection with such Pledge to exercise voting control effective upon the occurrence of certain events not constituting voting control by such other Person for these purposes until such events occur and such power of attorney or proxy is effective).

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the undersigned authorized officer of the Corporation has executed this Amended and Restated Certificate of Incorporation on this [●] day of [●], 2022.

 

	By:
		Name:
		Title:

 

[Signature Page to Amended and Restated Certificate of Incorporation]

 

 

 

Exhibit 3.6

 

AMENDED AND RESTATED
BYLAWS

 

OF

 

MOBILEYE GLOBAL INC.

 

A Delaware Corporation

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE I

 

OFFICES

 

Section 1.	Registered Office	1
Section 2.	Other Offices	1

 

ARTICLE II

 

MEETINGS OF STOCKHOLDERS

 

Section 1.	Place of Meetings	1
Section 2.	Annual Meetings	1
Section 3.	Special Meetings	1
Section 4.	Nature of Business at Meetings of Stockholders; Notice.	2
Section 5.	Nomination of Directors.	3
Section 6.	Notice	5
Section 7.	Adjournments and Postponements	5
Section 8.	Quorum	6
Section 9.	Voting	6
Section 10.	Proxies	6
Section 11.	Consent of Stockholders in Lieu of Meeting	7
Section 12.	List of Stockholders Entitled to Vote	8
Section 13.	Record Date	8
Section 14.	Stock Ledger	9
Section 15.	Conduct of Meetings	9
Section 16.	Inspectors of Election	10

 

ARTICLE III

 

DIRECTORS

 

Section 1.	Number and Election of Directors	10
Section 2.	Vacancies	10
Section 3.	Duties and Powers	11
Section 4.	Meetings	11
Section 5.	Organization	11
Section 6.	Resignations and Removals of Directors	12
Section 7.	Quorum	12
Section 8.	Emergency Powers	12
Section 9.	Actions of the Board by Written Consent	13
Section 10.	Meetings by Means of Conference Telephone	14
Section 11.	Committees	14

 

 

Section 12.	Subcommittees	15
Section 13.	Compensation	15
Section 14.	Interested Directors	15

 

ARTICLE IV

 

OFFICERS

 

Section 1.	General	15
Section 2.	Election	16
Section 3.	Voting Securities Owned by the Corporation	16
Section 4.	Chair of the Board of Directors	16
Section 5.	Chief Executive Officer	16
Section 6.	Secretary	16
Section 7.	Chief Financial Officer	17
Section 8.	Other Officers	17

 

ARTICLE V

 

STOCK

 

Section 1.	Form of Certificates	17
Section 2.	Lost Certificates	17
Section 3.	Transfers	18
Section 4.	Dividend Record Date	18
Section 5.	Record Owners	18
Section 6.	Transfer and Registry Agents	18

 

ARTICLE VI

 

NOTICES

 

Section 1.	Notices	19
Section 2.	Waivers of Notice	19

 

ARTICLE VII

 

GENERAL PROVISIONS

 

Section 1.	Dividends	20
Section 2.	Disbursements	20
Section 3.	Fiscal Year	20
Section 4.	Corporate Seal	20

 

 

ARTICLE VIII

 

INDEMNIFICATION

 

Section 1.	Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation	20
Section 2.	Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation	21
Section 3.	Authorization of Indemnification	21
Section 4.	Good Faith Defined	21
Section 5.	Indemnification by a Court	22
Section 6.	Expenses Payable in Advance	22
Section 7.	Nonexclusivity of Indemnification and Advancement of Expenses	22
Section 8.	Insurance	23
Section 9.	Certain Definitions	23
Section 10.	Survival of Indemnification and Advancement of Expenses	23
Section 11.	Limitation on Indemnification	24
Section 12.	Indemnification of Employees and Agents	24

 

ARTICLE IX

 

AMENDMENTS

 

Section 1.	Amendments	24
Section 2.	Entire Board of Directors	24

 

 

BYLAWS

 

OF

 

MOBILEYE GLOBAL INC.

 

(hereinafter called the “Corporation”)

 

ARTICLE I

 

OFFICES

 

Section 1.      Registered Office. The registered office of the Corporation shall be 251 Little Falls Drive, Wilmington, County of New Castle, 19808.

 

Section 2.      Other Offices. The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors of the Corporation (the “Board of Directors”) may from time to time determine.

 

ARTICLE II

 

MEETINGS OF STOCKHOLDERS

 

Section 1.      Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors. The Board of Directors may, in its sole discretion, determine that a meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication in the manner authorized by Section 211 of the General Corporation Law of the State of Delaware (the “DGCL”).

 

Section 2.      Annual Meetings. The Annual Meeting of Stockholders for the election of directors shall be held on such date and at such time as shall be designated from time to time by the Board of Directors. Any other proper business may be transacted at the Annual Meeting of Stockholders.

 

Section 3.      Special Meetings. Unless otherwise required by law or by the certificate of incorporation of the Corporation, as amended and restated from time to time (the “Certificate of Incorporation”), Special Meetings of Stockholders, for any purpose or purposes, may be called by either (i) the Chair of the Board of Directors, (ii) the Chief Executive Officer or (iii) the Secretary of the Corporation upon written request to the Secretary of the Corporation by a majority of the directors then in office. Such request shall state the purpose or purposes of the proposed meeting. At a Special Meeting of Stockholders, only such business shall be conducted as shall be specified in the notice of meeting (or any supplement thereto).

 

 

Section 4.      Nature of Business at Meetings of Stockholders; Notice.

 

(a)            Only such business (other than nominations for election to the Board of Directors, which must comply with the provisions of Section 5 of this Article II) may be transacted at an Annual Meeting of Stockholders as is either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors (or any duly authorized committee thereof), (b) otherwise properly brought before the Annual Meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof), or (c) otherwise properly brought before the Annual Meeting by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 4 of this Article II and on the record date for the determination of stockholders entitled to notice of and to vote at such Annual Meeting and (ii) who complies with the notice procedures set forth in this Section 4 of this Article II.

 

(b)            In addition to any other applicable requirements, for business to be properly brought before an Annual Meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation.

 

(c)            To be timely, a stockholder’s notice to the Secretary must be delivered to or be mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred and twenty (120) days prior to the anniversary of the date the Corporation’s proxy materials were mailed to the stockholders in connection with the immediately preceding Annual Meeting of Stockholders; provided, however, that in the event that the Annual Meeting is called for a date that is not within twenty-five (25) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the Annual Meeting was mailed or such public disclosure of the date of the Annual Meeting was made, whichever first occurs. In no event shall the adjournment or postponement of an Annual Meeting, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

 

(d)            To be in proper written form, a stockholder’s notice to the Secretary must set forth the following information: (a) as to each matter such stockholder proposes to bring before the Annual Meeting, a brief description of the business desired to be brought before the Annual Meeting and the proposed text of any proposal regarding such business (including the text of any resolutions proposed for consideration and, if such business includes a proposal to amend these bylaws, the text of the proposed amendment), and the reasons for conducting such business at the Annual Meeting, and (b) as to the stockholder giving notice and the beneficial owner, if any, on whose behalf the proposal is being made, (i) the name and address of such person, (ii) (A) the class or series and number of all shares of stock of the Corporation which are owned beneficially or of record by such person and any affiliates or associates of such person, (B) the name of each nominee holder of shares of all stock of the Corporation owned beneficially but not of record by such person or any affiliates or associates of such person, and the number of such shares of stock of the Corporation held by each such nominee holder, (C) whether and the extent to which any derivative instrument, swap, option, warrant, short interest, hedge or profit interest or other transaction has been entered into by or on behalf of such person, or any affiliates or associates of such person, with respect to stock of the Corporation and (D) whether and the extent to which any other transaction, agreement, arrangement or understanding (including any short position or any borrowing or lending of shares of stock of the Corporation) has been made by or on behalf of such person, or any affiliates or associates of such person, the effect or intent of any of the foregoing being to mitigate loss to, or to manage risk or benefit of stock price changes for, such person, or any affiliates or associates of such person, or to increase or decrease the voting power or pecuniary or economic interest of such person, or any affiliates or associates of such person, with respect to stock of the Corporation; (iii) a description of all agreements, arrangements, or understandings (whether written or oral) between or among such person, or any affiliates or associates of such person, and any other person or persons (including their names) in connection with or relating to (A) the Corporation or (B) the proposal, including any material interest in, or anticipated benefit from the proposal to such person, or any affiliates or associates of such person, (iv) a representation that the stockholder giving notice intends to appear in person or by proxy at the Annual Meeting to bring such business before the meeting; and (v) any other information relating to such person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies by such person with respect to the proposed business to be brought by such person before the Annual Meeting pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder.

 

 

(e)            A stockholder providing notice of business proposed to be brought before an Annual Meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 4 of this Article II shall be true and correct as of the record date for determining the stockholders entitled to receive notice of the Annual Meeting and such update and supplement shall be delivered to or be mailed and received by the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for determining the stockholders entitled to receive notice of the Annual Meeting.

 

(f)            No business shall be conducted at the Annual Meeting of Stockholders except business brought before the Annual Meeting in accordance with the procedures set forth in this Section 4 of this Article II; provided, however, that, once business has been properly brought before the Annual Meeting in accordance with such procedures, nothing in this Section 4 of this Article II shall be deemed to preclude discussion by any stockholder of any such business. If the chair of an Annual Meeting determines that business was not properly brought before the Annual Meeting in accordance with the foregoing procedures, the chair shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.

 

(g)            Nothing contained in this Section 4 of this Article II shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act (or any successor provision of law).

 

Section 5.      Nomination of Directors.

 

(a)            Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided in the Certificate of Incorporation with respect to the right of holders of preferred stock of the Corporation to nominate and elect a specified number of directors in certain circumstances. Nominations of persons for election to the Board of Directors may be made at any Annual Meeting of Stockholders, or at any Special Meeting of Stockholders called for the purpose of electing directors, (a) by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any stockholder of the Corporation (i) who is a stockholder of record on the date of the giving of the notice provided for in this Section 5 of this Article II and on the record date for the determination of stockholders entitled to notice of and to vote at such Annual Meeting or Special Meeting and (ii) who complies with the notice procedures set forth in this Section 5 of this Article II.

 

(b)            In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder’s notice to the Secretary must be delivered to or be mailed and received at the principal executive offices of the Corporation (a) in the case of an Annual Meeting, not less than ninety (90) days nor more than one hundred and twenty (120) days prior to the anniversary of the date the Corporation’s proxy materials were mailed to the stockholders in connection with the immediately preceding Annual Meeting of Stockholders; provided, however, that in the event that the Annual Meeting is called for a date that is not within twenty-five (25) days before or after such anniversary date, notice by the stockholder in order to be timely must be so received not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the Annual Meeting was mailed or such public disclosure of the date of the Annual Meeting was made, whichever first occurs; and (b) in the case of a Special Meeting of Stockholders called for the purpose of electing directors, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the Special Meeting was mailed or public disclosure of the date of the Special Meeting was made, whichever first occurs. In no event shall the adjournment or postponement of an Annual Meeting or a Special Meeting called for the purpose of electing directors, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

 

 

(c)            To be in proper written form, a stockholder’s notice to the Secretary must set forth the following information: (a) as to each person whom the stockholder proposes to nominate for election as a director (i) the name, age, business address and residence address of such person, (ii) the principal occupation or employment of such person, (iii) a written questionnaire with respect to the background and qualification of such person, (iv) (A) the class or series and number of all shares of stock of the Corporation which are owned beneficially or of record by such person and any affiliates or associates of such person, (B) the name of each nominee holder of shares of all stock of the Corporation owned beneficially but not of record by such person or any affiliates or associates of such person, and the number of such shares of stock of the Corporation held by each such nominee holder, (C) whether and the extent to which any derivative instrument, swap, option, warrant, short interest, hedge or profit interest or other transaction has been entered into by or on behalf of such person, or any affiliates or associates of such person, with respect to stock of the Corporation and (D) whether and the extent to which any other transaction, agreement, arrangement or understanding (including any short position or any borrowing or lending of shares of stock of the Corporation) has been made by or on behalf of such person, or any affiliates or associates of such person, the effect or intent of any of the foregoing being to mitigate loss to, or to manage risk or benefit of stock price changes for, such person, or any affiliates or associates of such person, or to increase or decrease the voting power or pecuniary or economic interest of such person, or any affiliates or associates of such person, with respect to stock of the Corporation, (v) such person’s written representation and agreement that such person (A) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Corporation that has not been disclosed to the Corporation in such representation and agreement and (C) in such person’s individual capacity, would be in compliance, if elected as a director of the Corporation, and will comply with, all applicable publicly disclosed confidentiality, corporate governance, conflict of interest, Regulation FD, code of conduct and ethics, and stock ownership and trading policies and guidelines of the Corporation and (vi) any other information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder; and (b) as to the stockholder giving the notice, and the beneficial owner, if any, on whose behalf the nomination is being made, (i) the name and record address of the stockholder giving the notice and the name and principal place of business of such beneficial owner; (ii) (A) the class or series and number of all shares of stock of the Corporation which are owned beneficially or of record by such person and any affiliates or associates of such person, (B) the name of each nominee holder of shares of the Corporation owned beneficially but not of record by such person or any affiliates or associates of such person, and the number of shares of stock of the Corporation held by each such nominee holder, (C) whether and the extent to which any derivative instrument, swap, option, warrant, short interest, hedge or profit interest or other transaction has been entered into by or on behalf of such person, or any affiliates or associates of such person, with respect to stock of the Corporation and (D) whether and the extent to which any other transaction, agreement, arrangement or understanding (including any short position or any borrowing or lending of shares of stock of the Corporation) has been made by or on behalf of such person, or any affiliates or associates of such person, the effect or intent of any of the foregoing being to mitigate loss to, or to manage risk or benefit of stock price changes for, such person, or any affiliates or associates of such person, or to increase or decrease the voting power or pecuniary or economic interest of such person, or any affiliates or associates of such person, with respect to stock of the Corporation; (iii) a description of (A) all agreements, arrangements, or understandings (whether written or oral) between such person, or any affiliates or associates of such person, and any proposed nominee, or any affiliates or associates of such proposed nominee, (B) all agreements, arrangements, or understandings (whether written or oral) between such person, or any affiliates or associates of such person, and any other person or persons (including their names) pursuant to which the nomination(s) are being made by such person, or otherwise relating to the Corporation or their ownership of capital stock of the Corporation, and (C) any material interest of such person, or any affiliates or associates of such person, in such nomination, including any anticipated benefit therefrom to such person, or any affiliates or associates of such person; (iv) a representation that the stockholder giving notice intends to appear in person or by proxy at the Annual Meeting or Special Meeting to nominate the persons named in its notice; and (v) any other information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with the solicitation of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected and such information as may be necessary or appropriate in determining the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.

 

 

 

(d)            A stockholder providing notice of any nomination proposed to be made at an Annual Meeting or Special Meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 5 of this Article II shall be true and correct as of the record date for determining the stockholders entitled to receive notice of the Annual Meeting or Special Meeting, and such update and supplement shall be delivered to or be mailed and received by the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for determining the stockholders entitled to receive notice of such Annual Meeting or Special Meeting.

 

(e)            No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 5 of this Article II. If the chair of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the chair shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded

 

Section 6.      Notice. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting, in the form of a writing or electronic transmission, shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at such meeting, if such date is different from the record date for determining stockholders entitled to notice of such meeting and, in the case of a Special Meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by law, notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining stockholders entitled to notice of such meeting.

 

Section 7.      Adjournments and Postponements. Any meeting of the stockholders may be adjourned or postponed from time to time by the chair of such meeting or by the Board of Directors, without the need for approval thereof by stockholders to reconvene or convene, respectively at the same or some other place. Notice need not be given of any such adjourned or postponed meeting if the time and place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned or postponed meeting are announced at the meeting at which the adjournment is taken or, with respect to a postponed meeting, are publicly announced. At the adjourned or postponed meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment or postponement is for more than thirty (30) days, notice of the adjourned or postponed meeting in accordance with the requirements of Section 4 hereof shall be given to each stockholder of record entitled to vote at the meeting. If, after the adjournment or postponement, a new record date for stockholders entitled to vote is fixed for the adjourned or postponed meeting, the Board of Directors shall fix a new record date for notice of such adjourned or postponed meeting in accordance with Section 11 hereof, and shall give notice of the adjourned or postponed meeting to each stockholder of record entitled to vote at such adjourned or postponed meeting as of the record date fixed for notice of such adjourned or postponed meeting.

 

 

Section 8.      Quorum. Unless otherwise required by the DGCL or other applicable law or the Certificate of Incorporation, the holders of thirty three and one-third percent (33⅓%) of the Corporation’s capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, in the manner provided in Section 7 of this Article II, until a quorum shall be present or represented.

 

Section 9.      Voting. Unless otherwise required by law, the Certificate of Incorporation or these Bylaws, or permitted by the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, any question brought before any meeting of the stockholders, other than the election of directors, shall be decided by the vote of the holders of a majority of the total number of votes of the Corporation’s capital stock present at the meeting in person or represented by proxy and entitled to vote on such question, voting as a single class. Subject to Section 13(a) of this Article II, each stockholder represented at a meeting of the stockholders shall be entitled to cast a vote or votes as set forth in the Certificate of Incorporation in respect of the shares of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy as provided in Section 10 of this Article II. The Board of Directors, in its discretion, or the chair of a meeting of the stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot.

 

Section 10.      Proxies. Each stockholder entitled to vote at a meeting of the stockholders or to express consent or dissent to corporate action in writing without a meeting to the extent authorized by the Certificate of Incorporation may authorize another person or persons to act for such stockholder as proxy, but no such proxy shall be voted upon after three years from its date, unless such proxy provides for a longer period. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, the following shall constitute a valid means by which a stockholder may grant such authority:

 

(i)            A stockholder may execute a document (as defined by Section 116(a) of the DGCL) authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished in the manner permitted by the DGCL, including by electronic signature, by the stockholder or such stockholder’s authorized officer, director, employee or agent.

 

 

(ii)            A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such transmission must either set forth or be submitted with information from which it can be determined that the transmission was authorized by the stockholder. If it is determined that such transmissions are valid, the inspectors or, if there are no inspectors, such other persons making that determination shall specify the information on which they relied.

 

Any copy, facsimile telecommunication or other reliable reproduction of the document (including any electronic transmission) authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original document for any and all purposes for which the original document could be used; provided, however, that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original document.

 

Section 11.      Consent of Stockholders in Lieu of Meeting. To the extent permissible pursuant to the Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be executed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. No written consent shall be effective to take the corporate action referred to therein unless written consents signed by a sufficient number of holders to take action are delivered to the Corporation in the manner required by this Section 9 within sixty (60) days of the first date on which a written consent is so delivered to the Corporation. Any person executing a consent may provide, whether through instruction to an agent or otherwise, that such a consent will be effective at a future time (including a time determined upon the happening of an event), no later than sixty (60) days after such instruction is given or such provision is made, if evidence of such instruction or provision is provided to the Corporation. Unless otherwise provided, any such consent shall be revocable prior to its becoming effective. An electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxy holder, or by a person or persons authorized to act for a stockholder or proxy holder, shall be deemed to be written and signed for the purposes of this Section 11, provided that any such electronic transmission sets forth or is delivered with information from which the Corporation can determine (i) that the electronic transmission was transmitted by the stockholder or proxy holder or by a person or persons authorized to act for the stockholder or proxy holder and (ii) the date on which such stockholder or proxy holder or authorized person or persons transmitted such electronic transmission.

 

 

A consent given by electronic transmission shall be deemed delivered to the Corporation upon the earliest of: (i) when the consent enters an information processing system, if any, designated by the Corporation for receiving consents, so long as the electronic transmission is in a form capable of being processed by that system and the Corporation is able to retrieve that electronic transmission; (ii) when a paper reproduction of the consent is delivered to the Corporation’s principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded; (iii) when a paper reproduction of the consent is delivered to the Corporation’s registered office by hand or by certified or registered mail, return receipt requested; or (iv) when delivered in such other manner, if any, provided by resolution of the Board of Directors. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation as provided above in this Section 11.

 

Section 12.      List of Stockholders Entitled to Vote. The Corporation shall prepare, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at the meeting; provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date. Such list shall be arranged in alphabetical order, and show the address of each stockholder and the number of shares registered in the name of each stockholder; provided, that the Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

 

Section 13.      Record Date.

 

(a)            In order that the Corporation may determine the stockholders entitled to notice of any meeting of the stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of the stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix, as the record date for stockholders entitled to notice of such adjourned meeting, the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting in accordance with the foregoing provisions of this Section 13.

 

 

(b)            In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

 

Section 14.      Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by Section 12 of this Article II or the books and records of the Corporation, or to vote in person or by proxy at any meeting of stockholders. As used herein, the stock ledger of the Corporation shall refer to one (1) or more records administered by or on behalf of the Corporation in which the names of all of the Corporation’s stockholders of record, the address and number of shares registered in the name of each such stockholder, and all issuances and transfer of stock of the Corporation are recorded in accordance with Section 224 of the DGCL.

 

Section 15.      Conduct of Meetings. The Board of Directors of the Corporation may adopt by resolution such rules and regulations for the conduct of any meeting of the stockholders as it shall deem appropriate. Meetings of stockholders shall be presided over by the Chair of the Board of Directors, or in his or her absence, the Chief Executive Officer. The Board of Directors shall have the authority to appoint a temporary chair to serve at any meeting of the stockholders if the Chair of the Board of Directors or the Chief Executive Officer is unable to do so for any reason. Except to the extent inconsistent with any rules and regulations adopted by the Board of Directors, the chair of any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chair, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chair of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (iii) rules and procedures for maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chair of the meeting shall determine; (v) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi) limitations on the time allotted to questions or comments by stockholders.

 

 

Section 16.      Inspectors of Election. In advance of any meeting of the stockholders, the Board of Directors, by resolution, the Chair of the Board of Directors or the Chief Executive Officer shall appoint one or more inspectors to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of the stockholders, the chair of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by applicable law, inspectors may be officers, employees or agents of the Corporation. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability. The inspector shall have the duties prescribed by law and shall take charge of the polls and, when the vote is completed, shall execute and deliver to the Corporation a certificate of the result of the vote taken and of such other facts as may be required by applicable law.

 

ARTICLE III

 

DIRECTORS

 

Section 1.      Number and Election of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by a duly adopted resolution of the Board of Directors. Except as provided in Section 2 of this Article III, directors shall be elected by a plurality of the votes cast at each Annual Meeting of Stockholders and each director so elected shall hold office until the next Annual Meeting of Stockholders and until such director’s successor is duly elected and qualified, or until such director’s earlier death, resignation or removal. Each director shall be a natural person and need not be a stockholder.

 

Section 2.      Vacancies. Unless otherwise required by law or the Certificate of Incorporation, vacancies on the Board of Directors or any committee thereof resulting from the death, resignation or removal of a director, or from an increase in the number of directors constituting the Board of Directors or such committee or otherwise, may be filled only by a majority of the directors then in office, though less than a quorum, or by a sole remaining director. The directors so chosen shall, in the case of the Board of Directors, hold office until the annual election in which their term expires pursuant to the Certificate of Incorporation and until their successors are duly elected and qualified, or until their earlier death, resignation or removal and, in the case of any committee of the Board of Directors, shall hold office until their successors are duly appointed by the Board of Directors or until their earlier death, resignation or removal.

 

 

Section 3.      Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such powers of the Corporation except as may be otherwise provided in the DGCL, the Certificate of Incorporation, these Bylaws or required by the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading.

 

Section 4.      Meetings. The Board of Directors and any committee thereof may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors or any committee thereof may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors or such committee, respectively. Special meetings of the Board of Directors may be called by the Chair of the Board of Directors, the Chief Executive Officer or by a majority of the Board of Directors then in office. Special meetings of any committee of the Board of Directors may be called by the chair of such committee, the Chief Executive Officer or a majority of such committee. Notice of any special meeting stating the place, date and hour of the meeting shall be given to each director (or, in the case of a committee, to each member of such committee) not less than twenty-four hours before the date of the meeting, by telephone, or in the form of a writing or electronic transmission, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.

 

Section 5.      Organization. At each meeting of the Board of Directors or any committee thereof, the Chair of the Board of Directors or the chair of such committee, as the case may be, shall act as chair of such meeting. At each meeting of the Board of Directors in the absence or disability of the Chair of the Board of Directors, if the Chief Executive Officer is also a director, then the Chief Executive Officer shall act as chair of such meeting. At each meeting of the Board of Directors in the absence or disability of the Chair of the Board of Directors and the Chief Executive Officer, or if the Chief Executive Officer is not a director, and in each meeting of a committee of the Board of Directors in the absence or disability of the chair of such committee, a director chosen by a majority of the directors present shall act as chair of such meeting. Except as provided below, the Secretary of the Corporation shall act as secretary at each meeting of the Board of Directors and of each committee thereof. In case the Secretary shall be absent from any meeting of the Board of Directors or of any committee thereof, an Assistant Secretary, if there by any, shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant Secretaries, the chair of the meeting may appoint any person to act as secretary of the meeting. Notwithstanding the foregoing, the members of each committee of the Board of Directors may appoint any person to act as secretary of any meeting of such committee and the Secretary or any Assistant Secretary of the Corporation may, but need not if such committee so elects, serve in such capacity.

 

 

Section 6.      Resignations and Removals of Directors. Any director of the Corporation may resign from the Board of Directors or any committee thereof at any time, by giving notice in writing or by electronic transmission to the Chair of the Board of Directors, the Chief Executive Officer or the Secretary of the Corporation and, in the case of a committee, to the chair of such committee, if there be one. Such resignation shall take effect when delivered or, if such resignation specifies a later effective time or an effective time, determined upon the happening of an event or events, in which case, such resignation takes effect upon such effective time. Unless otherwise specified in such resignation, the acceptance of such resignation shall not be necessary to make it effective. A resignation which is conditioned upon the director failing to receive a specified vote for reelection as a director may provide that it is irrevocable. Except as otherwise required by applicable law and subject to the rights, if any, of the holders of shares of preferred stock then outstanding, any director or the entire Board of Directors may be removed from office at any time pursuant to the Certificate of Incorporation by the affirmative vote of the holders of at least a majority in voting power of the issued and outstanding capital stock of the Corporation entitled to vote in the election of directors. Any director serving on a committee of the Board of Directors may be removed from such committee at any time by the Board of Directors.

 

Section 7.      Quorum. Except as otherwise required by law, or the Certificate of Incorporation or the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the vote of a majority of the directors or committee members, as applicable, present at any meeting at which there is a quorum shall be the act of the Board of Directors or such committee, as applicable. If a quorum shall not be present at any meeting of the Board of Directors or any committee thereof, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present.

 

Section 8.      Emergency Powers.

 

(a)            Emergency Provisions. Notwithstanding any different provision elsewhere in the Certificate of Incorporation or these Bylaws, the provisions of this Section 8 shall be operative during any emergency resulting from an attack on the United States, Israel or other locality in which the corporation conducts its business or customarily holds meetings of its Board of Directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, including, but not limited to, an epidemic or pandemic, and a declaration of a national emergency by the United States or Israeli government, or other similar emergency condition, irrespective of whether a quorum of the Board of Directors or a standing committee of the Board of Directors can readily be convened for action.

 

(b)            Call and Notice of Directors’ Meetings. A meeting of the Board of Directors or a committee of the Board of Directors may be called at any time by any officer or director. Notice of any such meeting shall be given at least eight (8) hours prior to the time set for the meeting, but need be given only to such of the directors as it may be feasible to reach at the time and by such means as may be feasible at the time, including publication or radio.

 

 

(c)            Quorum of Directors. The director or directors in attendance at the meeting shall constitute a quorum. The officers and the members of the management of the corporation who are present shall, to the extent required to provide a quorum at any meeting of the Board of Directors, be deemed, in order of rank and within the same rank in order of seniority, directors for such meeting.

 

(d)            Officers’ Succession. The Board of Directors, either before or during the emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or other agents of the corporation shall for any reason be rendered incapable of discharging their duties.

 

(e)            Change of Office. The Board of Directors, either before or during the emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers to do so.

 

(f)            Other Actions. During any emergency condition of a type described in Section 110(a) of the DGCL, the Board of Directors (or, if a quorum cannot be readily convened for a meeting, a majority of the directors present) may, pursuant to Section 110 of the DGCL:

 

(i)            take any action that it determines to be practical and necessary to address the circumstances of such emergency condition with respect to a meeting of the stockholders, including but not limited to, to postpone any stockholder meeting to a later time or date, or make a change to hold the meeting solely by means of remote communication, and notify stockholders of any postponement or change of place of meeting or a change to hold the meeting solely by means of remote communication, solely by a document publicly filed by the Corporation with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13, 14, or 15(d) of the Exchange Act, and

 

(ii)            for any dividend that has been declared but which record date has not occurred, change the record date or payment date or both to a later date or dates. The payment date as so changed may not be more than sixty (60) days after the record date as so changed. Notice of the change must be given to stockholders as promptly as practicable, which may be given solely by a document publicly filed by the Corporation with the SEC pursuant to Section 13, 14, or 15(d) of the Exchange Act.

 

(g)            Liability. No officer, director, or employee acting in accordance with any emergency Bylaw provision shall be liable except for willful misconduct.

 

(h)            Termination. These Bylaws shall remain in effect during any emergency and upon its termination the foregoing emergency Bylaw provisions shall cease to be operative. All emergency Bylaw provisions may be terminated at any time by the consent or direction of a majority of a quorum of the Board of Directors.

 

Section 9.      Actions of the Board by Written Consent. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission. Any person, whether or not then a director, may provide, through instruction to an agent or otherwise, that a consent to action will be effective at a future time (including a time determined upon the happening of an event) no later than sixty (60) days after such instruction is given or such provision is made and such consent shall be deemed to have been given at such effective time so long as such person is then a director and did not revoke the consent prior to such time. Any such consent shall be revocable prior to its becoming effective. After an action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board of Directors, or the committee thereof, in the same paper or electronic form as the minutes are maintained.

 

 

Section 10.      Meetings by Means of Conference Telephone. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, members of the Board of Directors of the Corporation, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 10 shall constitute presence in person at such meeting.

 

Section 11.      Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Each member of a committee must meet the requirements for membership, if any, imposed by applicable law and the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. Subject to the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, in the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another qualified member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any such committee, to the extent permitted by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no such committee shall have the power or authority to (i) approve, adopt, or recommend to the stockholders any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend, or repeal any of these Bylaws. Each committee shall keep regular minutes and report to the Board of Directors when required. Notwithstanding anything to the contrary contained in this Article III, the resolution of the Board of Directors establishing any committee of the Board of Directors and/or the charter of any such committee may establish requirements or procedures relating to the governance and/or operation of such committee that are different from, or in addition to, those set forth in these Bylaws and, to the extent that there is any inconsistency between these Bylaws and any such resolution or charter, the terms of such resolution or charter shall be controlling.

 

 

Section 12.      Subcommittees. Unless otherwise provided in the Certificate of Incorporation, these Bylaws, or the resolution of the Board of Directors designating a committee, such committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee. Except for references to committees and members of committees in Section 11 of this Article III, every reference in these Bylaws to a committee of the Board of Directors or a member of a committee shall be deemed to include a reference to a subcommittee or member of a subcommittee.

 

Section 13.      Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary for service as director, payable in cash or securities. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for service as committee members.

 

Section 14.      Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because any such director’s or officer’s vote is counted for such purpose if: (i) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes such contract or transaction.

 

ARTICLE IV

 

OFFICERS

 

Section 1.      General. The officers of the Corporation shall be chosen by the Board of Directors and shall be a Chair of the Board of Directors (who must be a director), Chief Executive Officer, Chief Financial Officer and Secretary. The Board of Directors may also choose one or more other officers in its discretion. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chair of the Board of Directors, directors of the Corporation.

 

 

Section 2.      Election. The Board of Directors shall elect any officers to fill new positions or vacancies in existing positions of the Corporation. Such officers shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and each officer of the Corporation shall hold office until such officer’s successor is elected and qualified, or until such officer’s earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors.

 

Section 3.      Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by any officer authorized to do so by the Board of Directors and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation or other entity in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.

 

Section 4.      Chair of the Board of Directors. The Chair of the Board of Directors shall preside at all meetings of the stockholders and of the Board of Directors. During the absence or disability of the Chief Executive Officer, the Chair of the Board of Directors shall exercise all the powers and discharge all the duties of the Chief Executive Officer. The Chair of the Board of Directors shall also perform such other duties and may exercise such other powers as may from time to time be assigned by these Bylaws or by the Board of Directors.

 

Section 5.      Chief Executive Officer. The Chief Executive Officer shall, subject to the oversight and control of the Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The Chief Executive Officer shall execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these Bylaws, the Board of Directors or the Chief Executive Officer. In the absence or disability of the Chair of the Board of Directors, the Chief Executive Officer shall preside at all meetings of the stockholders and, if the Chief Executive Officer is also a director, the Board of Directors. In the absence or disability of the Chair of the Board of Directors and the Chief Executive Officer, meetings of the stockholders and of the Board of Directors shall be presided in accordance with Section 15 of Article II and Section 5 of Article III, respectively. The Chief Executive Officer shall also perform such other duties and may exercise such other powers as may from time to time be assigned to such officer by these Bylaws or by the Board of Directors.

 

Section 6.      Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for committees of the Board of Directors when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors, the Chair of the Board of Directors or the Chief Executive Officer, under whose supervision the Secretary shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, then either the Board of Directors or the Chief Executive Officer may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest to the affixing by such officer’s signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.

 

 

 

Section 7.      Chief Financial Officer. The Chief Financial Officer shall have the custody of the Corporation’s funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board of Directors or the Chief Executive Officer taking proper vouchers for such disbursements, and shall render to the Chief Executive Officer and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all transactions as Chief Financial Officer and of the financial condition of the Corporation.

 

Section 8.      Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.

 

ARTICLE V

 

STOCK

 

Section 1.      Form of Certificates. Except as otherwise provided in a resolution approved by the Board of Directors, all shares of capital stock of the Corporation shall be uncertificated shares.

 

Section 2.      Lost Certificates. The Board of Directors may direct a new certificate or uncertificated shares be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issuance of a new certificate or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owner’s legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate or the issuance of such new certificate or uncertificated shares.

 

 

Section 3.      Transfers. Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation, and in the case of certificated shares of stock, only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive such requirement. With respect to certificated shares of stock, every certificate exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.

 

Section 4.      Dividend Record Date. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

Section 5.      Record Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by law.

 

Section 6.      Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agencies and registry offices or agencies at such place or places as may be determined from time to time by the Board of Directors.

 

 

ARTICLE VI

 

NOTICES

 

Section 1.      Notices. Whenever written notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, such notice may be given in writing directed to such director’s, committee member’s or stockholder’s mailing address (or by electronic transmission directed to such director’s, committee member’s or stockholder’ electronic mail address, as applicable) as it appears on the records of the Corporation and shall be given: (a) if mailed, when the notice is deposited in the United States mail, postage prepaid, (b) if delivered by courier service, the earlier of when the notice is received or left at such director’s, committee member’s or stockholder’s address or (c) if given by electronic mail, when directed to such director’s, committee member’s or stockholder’s electronic mail address unless such director, committee member or stockholder has notified the corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by the under applicable law, the Certificate of Incorporation or these Bylaws. Without limiting the manner by which notice otherwise may be given effectively to stockholders, but subject to Section 232(e) of the DGCL, any notice to stockholders given by the Corporation under applicable law, the Certificate of Incorporation or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice or electronic transmission to the Corporation. Notice given by electronic transmission, as described above, shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iii) if by any other form of electronic transmission, when directed to the stockholder. Notwithstanding the foregoing, a notice may not be given by an electronic transmission from and after the time that (i) the Corporation is unable to deliver by such electronic transmission two consecutive notices given by the Corporation and (ii) such inability becomes known to the Secretary or an Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice, provided, however, the inadvertent failure to discover such inability shall not invalidate any meeting or other action.

 

Section 2.      Waivers of Notice. Whenever any notice is required, by applicable law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice, or a waiver by electronic transmission by the person or persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting, present in person or represented by proxy, shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any Annual or Special Meeting of Stockholders or any regular or special meeting of the directors or members of a committee of directors need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by law, the Certificate of Incorporation or these Bylaws.

 

 

ARTICLE VII

 

GENERAL PROVISIONS

 

Section 1.      Dividends. Dividends upon the capital stock of the Corporation, subject to the requirements of the DGCL and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board of Directors (or any action by written consent in lieu thereof in accordance with Section 8 of Article III hereof), and may be paid in cash, in property, or in shares of the Corporation’s capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the Corporation, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

 

Section 2.      Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

 

Section 3.      Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

 

Section 4.      Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

 

Section 5.      Contributions. The Board of Directors shall have the authority from time to time to make such contributions as the Board of Directors in its discretion shall determine, for public and charitable purposes.

 

ARTICLE VIII

 

INDEMNIFICATION

 

Section 1.      Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

 

 

Section 2.      Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

Section 3.      Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made, with respect to a person who is a director or officer of the Corporation at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (iv) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To the extent, however, that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.

 

Section 4.      Good Faith Defined. For purposes of any determination under Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to such person by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.

 

 

Section 5.      Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Section 1 or Section 2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.

 

Section 6.      Expenses Payable in Advance. Expenses (including attorneys’ fees) incurred by a director or officer of the Corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents of the Corporation or by persons serving at the request of the Corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.

 

Section 7.      Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Section 1 and Section 2 of this Article VIII shall be made to the fullest extent permitted by law. A right to indemnification or to advancement of expenses arising under a provision of the Certificate of Incorporation or these Bylaws shall not be eliminated or impaired by an amendment to the Certificate of Incorporation or these Bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not specified in Section 1 or Section 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify, under the provisions of the DGCL, or otherwise.

 

 

Section 8.      Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power or the obligation to indemnify such person against such liability under the provisions of this Article VIII.

 

Section 9.      Certain Definitions. For purposes of this Article VIII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. The term “another enterprise” as used in this Article VIII shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. For purposes of this Article VIII, references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VIII.

 

Section 10.      Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

 

Section 11.      Limitation on Indemnification. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation.

 

Section 12.      Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VIII to directors and officers of the Corporation.

 

ARTICLE IX

 

AMENDMENTS

 

Section 1.      Amendments. These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of a meeting of the stockholders or Board of Directors, as the case may be, called for the purpose of acting upon any proposed alteration, amendment, repeal or adoption of new Bylaws. All such alterations, amendments, repeals or adoptions of new Bylaws must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office. Any amendment to these Bylaws adopted by stockholders which specifies the votes that shall be necessary for the election of directors shall not be further amended or repealed by the Board of Directors.

 

Section 2.      Entire Board of Directors. As used in this Article IX and in these Bylaws generally, the term “entire Board of Directors” means the total number of directors which the Corporation would have if there were no vacancies.

 

* * *

 

 

 

Exhibit 5.1

 

[Form of Opinion of Skadden, Arps, Slate, Meagher & Flom LLP]

________

 

TEL: (212) 735-3000

FAX: (212) 735-2000

www.skadden.com

 

[●], 2022

 

Mobileye Global Inc. Har Hotzvim, 13 Hartom Street P.O. Box 45157 Jerusalem 9777513, Israel

 

RE:

Mobileye Global Inc. Registration Statement on Form S-1

 

Ladies and Gentlemen:

 

We have acted as special United States counsel to Intel Corporation, a Delaware corporation (“Intel” or “Our Client”), in connection with the public offering by Mobileye Global Inc., a Delaware corporation (the “Company”) of [●] shares of Class A common stock, par value $0.01 per share (“Class A Common Stock”), of the Company (including up to [●] shares of Class A Common Stock subject to an over-allotment option) (the “Shares”).

 

This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933 (the “Securities Act”).

 

In rendering the opinion stated herein, we have examined and relied upon the following:

 

(a)               the registration statement on Form S-1 (File No. 333-[●]) of the Company relating to the Shares filed with the Securities and Exchange Commission (the “Commission”) on September 30, 2022 under the Securities Act, and Pre-Effective Amendment[s] No. 1 [through No. [●]] thereto, including the information deemed to be a part of the registration statement pursuant to Rule 430A of the General Rules and Regulations under the Securities Act (the “Rules and Regulations”) (such registration statement, as so amended, being hereinafter referred to as the “Registration Statement”);

 

 

Mobileye Global Inc.

[●], 2022

Page 2

 

(b)               the prospectus, dated [●], 2022 (the “Prospectus”), which forms a part of and is included in the Registration Statement;

 

(c)               the form of the Underwriting Agreement (the “Underwriting Agreement”) proposed to be entered into among the Company, Goldman Sachs & Co. LLC and Morgan Stanley & Co. LLC, as representatives of the several Underwriters named in Schedule I thereto (the “Underwriters”), relating to the sale by the Company to the Underwriters of the Shares, filed as Exhibit 1.1 to the Registration Statement;

 

(d)               an executed copy of a certificate of Liz Cohen-Yerushalmi, Chief Legal Officer, General Counsel and Secretary of the Company, dated the date hereof (the “Secretary’s Certificate”);

 

(e)               an executed copy of a certificate of Susie Giordano, Secretary of Intel, dated the date hereof (the “Intel Secretary’s Certificate”);

 

(f)                a copy of the Company’s Certificate of Incorporation, as amended, certified by the Secretary of State of the State of Delaware as of January 21, 2022 and certified pursuant to the Secretary’s Certificate;

 

(g)               the form of the Company’s Amended and Restated Certificate of Incorporation, to be in effect prior to the consummation of the offering of the Shares and filed as Exhibit 3.4 to the Registration Statement (the “Amended and Restated Certificate of Incorporation”);

 

(h)               a copy of the Company’s By-laws, as amended and in effect as of the date hereof and certified pursuant to the Secretary’s Certificate;

 

(i)                 the form of the Company’s Amended and Restated By-laws, to be in effect prior to the consummation of the offering of the Shares and filed as Exhibit 3.5 to the Registration Statement (the “Amended and Restated By-laws”); and

 

(j)                 a copy of certain resolutions of the Board of Directors of the Company, adopted on February 28, 2022 and September 30, 2022, and certain resolutions of the Pricing Committee thereof, adopted on [●], 2022, certified pursuant to the Secretary’s Certificate.

 

 

Mobileye Global Inc.

[●], 2022

Page 3

 

(k)               a copy of certain resolutions of the stockholder of the Company, adopted on March 3, 2022, April 12, 2022 and September 30, 2022, and certain resolutions of the Offering Committee thereof, adopted on May 3, 2022, September 13, 2022 and [●], 2022, certified pursuant to the Intel Secretary’s Certificate;

 

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of Intel and the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Intel and Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below, including the facts and conclusions set forth in the Secretary’s Certificate and the Intel Secretary’s Certificate and the factual representations and warranties contained in the Underwriting Agreement.

 

In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials, including the factual representations and warranties set forth in the Underwriting Agreement. In addition, we have assumed that the issuance of the Shares will not violate or conflict with any agreement or instrument binding on the Company (except that we do not make this assumption with respect to the Amended and Restated Certificate of Incorporation and the Amended and Restated By-laws).

 

We do not express any opinion with respect to the laws of any jurisdiction other than the General Corporation Law of the State of Delaware (the “DGCL”).

 

 

Mobileye Global Inc.

[●], 2022

Page 4

 

Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that when (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), has become effective under the Securities Act; (ii) the Underwriting Agreement has been duly authorized, executed and delivered by the Company and the other parties thereto; (iii) the Amended and Restated Certificate of Incorporation has been filed with the Secretary of State of the State of Delaware and has become effective and the Board of Directors of the Company, including any appropriate committee appointed thereby, has taken all necessary corporate action to adopt the Company’s Amended and Restated Bylaws and to approve the issuance and sale of the Shares and related matters, including the price per share of the Shares; (iv) the Shares are registered in the Company’s share registry and delivered upon payment of the consideration therefor determined by the Board of Directors, the Shares, when issued and sold in accordance with the provisions of the Underwriting Agreement, will be duly authorized by all requisite corporate action on the part of the Company under the DGCL and validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than $0.01 per Share.

 

We hereby consent to the reference to our firm under the heading “Validity of Common Stock” in the Prospectus forming part of the Registration Statement. We also hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations.

 

Very truly yours,

 

 

 

Exhibit 10.1

 

FORM OF INDEMNIFICATION AGREEMENT

 

THIS AGREEMENT is entered into, effective as of [EFFECTIVE DATE], between MOBILEYE GLOBAL INC., a Delaware corporation (the “Company”) and [INDEMNITEE] (“Indemnitee”).

 

WHEREAS, it is essential to the Company to retain and attract as directors, officers and employees the most capable persons available;

 

WHEREAS, Indemnitee is a director, and/or officer, and/or employee of the Company or is serving with another enterprise at the Company’s request;

 

WHEREAS, both the Company and Indemnitee recognize the increased risk of litigation and other claims currently being asserted against directors, officers and employees of corporations; and

 

WHEREAS, in recognition of Indemnitee’s need for substantial protection against personal liability in order to enhance Indemnitee’s continued and effective service to the Company, and in order to induce Indemnitee to provide services to the Company as a director, officer or employee, the Company wishes to provide in this Agreement for the indemnification of and the advancing of expenses to Indemnitee to the fullest extent permitted by law and as set forth in this Agreement, and, to the extent insurance is maintained which includes Indemnitee as a covered party, for the coverage of Indemnitee under the Company’s directors’ and officers’ liability insurance policies.

 

NOW, THEREFORE, in consideration of the above premises and of Indemnitee’s continuing to serve the Company directly or, at its request, with another enterprise, and intending to be legally bound hereby, the parties agree as follows:

 

1.

Certain Definitions.

 

(a)               Board: the Board of Directors of the Company.

 

(b)               Change in Control: shall be deemed to have occurred if (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a corporation owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company, is or becomes the “Beneficial Owner” (as defined in Rule 13d-3 under said Act), directly or indirectly, of securities of the Company representing twenty percent (20%) or more of the total voting power represented by the Company’s then outstanding Voting Securities, or (ii) during any period of two (2) consecutive years, individuals who at the beginning of such period constitute the Board and any new director whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof, or (iii) the stockholders of the Company approve a merger or consolidation of the Company with any other corporation, other than a merger or consolidation that would result in the Voting Securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least eighty percent (80%) of the total voting power represented by the Voting Securities of the Company or such surviving entity outstanding immediately after such merger or consolidation, or the stockholders of the Company approve a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company (in one transaction or a series of transactions) of all or substantially all of the Company’s assets.

 

 

(c)               Corporate Status: describes the status of a person who is or was a director, officer or employee of the Company, or while a director, officer or employee, is or was serving at the request of the Company as a director, officer, employee, trustee, agent, limited partner, member or fiduciary of another foreign or domestic corporation, partnership, joint venture, employee benefit plan, trust, or other enterprise, or was a director, officer, employee, or agent of a foreign or domestic corporation that was a predecessor corporation of the Company or of another enterprise at the request of such predecessor corporation that such person is or was serving at the request of the Company. By entering into this Agreement, Indemnitee is deemed to be serving at the request of the Company, and the Company is deemed to be requesting such service.

 

(d)               Delaware Court: means the Court of Chancery of the State of Delaware.

 

(e)               Disinterested Director: a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

 

(f)                Expenses: any expense, including without limitation, attorneys’ fees, retainers, court costs, transcript costs, fees and expenses of experts, including accountants and other advisors, travel expenses, duplicating costs, postage, delivery service fees, filing fees, and all other disbursements or expenses incurred in connection with investigating, defending, being a witness in, or participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding, and any expenses of establishing a right to payment under Sections 2, 4 and 5 of this Agreement.

 

(g)               [RESERVED]

 

(h)               Independent Counsel: the person or body appointed in connection with Section 3.

 

(i)                 Potential Change in Control: shall be deemed to have occurred if (i) the Company enters into an agreement or arrangement, the consummation of which would result in the occurrence of a Change in Control; (ii) any person (including the Company) publicly announces an intention to take or to consider taking actions that, if consummated, would constitute a Change in Control; (iii) any person (other than a trustee or other fiduciary holding securities under an employee benefit plan of the Company acting in such capacity or a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company), who is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing ten percent (10%) or more of the combined voting power of the Company’s then outstanding Voting Securities, increases his beneficial ownership of such securities by five percent (5%) or more over the percentage so owned by such person on the date hereof, or (iv) the Board adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control has occurred.

 

 

(j)                 Proceeding: any threatened, pending, or completed action, suit, arbitration, alternative dispute mechanism, inquiry, administrative or legislative hearing, investigation or any other actual, threatened or completed proceeding, including any and all appeals, whether conducted by the Company or any other party, whether civil, criminal, administrative, investigative, or other, in which Indemnitee was, is or will be involved as a party or otherwise, by reason of his or her Corporate Status, by reason of any action taken by him or her or of any inaction on his or her part while acting in his or her Corporate Status; in each case whether or not he or she is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement; including one pending on or before the date of this Agreement.

 

(k)               Reviewing Party: the person or body appointed in accordance with Section 3.

 

(l)                 Voting Securities: any securities of the Company that vote generally in the election of directors.

 

2.                  Agreement to Indemnify.

 

(a)               General Agreement. In the event Indemnitee was, is, or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) Indemnitee’s Corporate Status, the Company shall indemnify Indemnitee from and against any and all Expenses, liability or loss, judgments, fines, ERISA excise taxes and penalties, amounts paid or to be paid in settlement, any interest, assessments, or other charges imposed thereon, and any federal, state, local, or foreign taxes imposed as a result of the actual or deemed receipt of any payments under this Agreement, to the fullest extent permitted by applicable law, as the same exists or may hereafter be amended or interpreted (but in the case of any such amendment or interpretation, only to the extent that such amendment or interpretation permits the Company to provide broader indemnification rights than were permitted prior thereto). The parties hereto intend that this Agreement shall provide for indemnification in excess of that expressly permitted by statute.

 

(b)               Initiation of Proceeding. Notwithstanding anything in this Agreement to the contrary, Indemnitee shall not be entitled to indemnification or advancement pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless (i) the Company has joined in or the Board has consented to the initiation of such Proceeding; (ii) the Proceeding is one to enforce rights under Section 5; or (iii) the Proceeding is instituted after a Change in Control.

 

(c)               Expense Advances. Notwithstanding any other provision of this Agreement, the Company shall advance any and all Expenses to Indemnitee (an “Expense Advance”) in connection with any Proceeding by reason of Indemnitee’s Corporate Status within thirty (30) calendar days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances, whether prior to or after final disposition of any Proceeding. Advances shall be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the provisions of this Agreement. Such statement or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be indemnified against such Expenses. Advances shall include any and all reasonable Expenses incurred pursuing an action to enforce this right of advancement if requested by Indemnitee. If Indemnitee has commenced legal proceedings in a court of competent jurisdiction in the State of Delaware to secure a determination that Indemnitee should be indemnified under applicable law, as provided in Section 4, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee’s obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon.

 

 

(d)               Mandatory Indemnification. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been successful on the merits or otherwise in defense of any Proceeding relating in whole or in part to Indemnitee’s Corporate Status or in defense of any issue or matter therein, Indemnitee shall be indemnified against all Expenses incurred in connection therewith. For purposes of this Agreement and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, or settlement of such claim prior to a final judgment by a court of competent jurisdiction with respect to such Proceeding, shall be deemed to be a successful result as to such claim, issue or matter.

 

(e)               Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled. .

 

3.                  Reviewing Party.

 

(a)               Prior to any Change in Control, the person, persons or entity (the “Reviewing Party”) who shall determine whether Indemnitee is entitled to indemnification in the first instance shall be (a) the Board of Directors of the Company acting by a majority vote of Disinterested Directors, whether or not such majority constitutes a quorum of the Board of Directors; (b) a committee of Disinterested Directors designated by a majority vote of such directors, whether or not such majority constitutes a quorum; or (c) if there are no Disinterested Directors, or if the Disinterested Directors so direct, by Independent Counsel (as described below in Section 3(b)) in a written determination to the Board of Directors, a copy of which shall be delivered to Indemnitee.

 

 

(b)               After a Change in Control, the Reviewing Party shall be the Independent Counsel referred to below. With respect to all matters arising from a Change in Control (other than a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to such Change in Control) concerning the rights of Indemnitee to indemnity payments and Expense Advances under this Agreement or any other agreement or under applicable law or the Company’s articles of incorporation or by-laws now or hereafter in effect relating to indemnification, the Company shall seek legal advice only from Independent Counsel selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld), and who has not otherwise performed services for the Company or the Indemnitee (other than in connection with indemnification matters) within the last five years. The Independent Counsel shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. Such counsel, among other things, shall determine whether Indemnitee is entitled to indemnification and render its written determination to the Company and Indemnitee. The Company agrees to pay the reasonable fees of the Independent Counsel and to indemnify fully such counsel against any and all expenses (including attorneys’ fees), claims, liabilities, loss, and damages arising out of or relating to this Agreement or the engagement of Independent Counsel pursuant hereto.

 

4.                  Indemnification Process and Appeal.

 

(a)               Indemnification Payment. Indemnitee shall be entitled to indemnification of Expenses, and shall receive payment thereof, from the Company in accordance with this Agreement within thirty (30) calendar days after Indemnitee has made written demand on the Company for indemnification (which written demand shall include such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification), unless the Reviewing Party has provided a written determination to the Company that Indemnitee is not entitled to indemnification under applicable law. The Reviewing Party making the determination with respect to Indemnitee’s entitlement to indemnification shall notify Indemnitee of such written determination no later than two (2) business days thereafter.

 

(b)               Suit to Enforce Rights. If (i) no determination of entitlement to indemnification shall have been made within thirty (30) calendar days after Indemnitee has made a demand in accordance with Section 4(a), (ii) payment of indemnification pursuant to Section 4(a) is not made within thirty (30) calendar days after a determination has been made that Indemnitee is entitled to indemnification, (iii) the Reviewing Party determines pursuant to Section 3 that Indemnitee is not entitled to indemnification under this Agreement, or (iv) Indemnitee has not received advancement of Expenses within thirty (30) calendar days after making such a request in accordance with Section 2(c), then Indemnitee shall have the right to enforce its rights under this Agreement by commencing litigation in any court of competent jurisdiction in the State of Delaware seeking an initial determination by the court or challenging any determination by the Reviewing Party or any aspect thereof. The Company hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party not challenged by the Indemnitee on or before the first anniversary of the date of the Reviewing Party’s determination shall be binding on the Company and Indemnitee. The remedy provided for in this Section 4 shall be in addition to any other remedies available to Indemnitee in law or equity.

 

 

(c)               Defense to Indemnification, Burden of Proof, and Presumptions.

 

(i)                 To the maximum extent permitted by applicable law in making a determination with respect to entitlement to indemnification hereunder, the Reviewing Party shall presume that an Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 4(a) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by the Reviewing Party of any determination contrary to that presumption.

 

(ii)              It shall be a defense to any action brought by Indemnitee against the Company to enforce this Agreement (other than an action brought to enforce a claim for Expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Company) that it is not permissible under applicable law for the Company to indemnify Indemnitee for the amount claimed.

 

(iii)            In connection with any action brought pursuant to Section 4(c)(ii) as to whether Indemnitee is entitled to be indemnified or to receive an Expense Advance hereunder, it shall be presumed that an Indemnitee is entitled to payment and the burden of proving Indemnitee is not entitled to payment under this Agreement shall be on the Company.

 

(iv)             Neither the failure of the Reviewing Party or the Company (including its Board, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action by Indemnitee that indemnification of the claimant is proper under the circumstances because Indemnitee has met the standard of conduct set forth in applicable law, nor an actual determination by the Reviewing Party or Company (including its Board, independent legal counsel, or its stockholders) that the Indemnitee had not met such applicable standard of conduct, shall be admissible as evidence in any such action for any purpose.

 

(v)               For purposes of this Agreement, the termination of any claim, action, suit, or proceeding, by judgment, order, settlement (whether with or without court approval), conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that indemnification is not permitted by applicable law.

 

5.                  Indemnification for Expenses Incurred in Enforcing Rights. To the maximum extent permitted by applicable law, the Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall advance such Expenses to Indemnitee on such terms and conditions as the Board of Directors deems appropriate, that are incurred by Indemnitee in connection with any claim asserted against or action brought by Indemnitee for (i) enforcement of this Agreement, (ii) indemnification of Expenses or Expense Advances by the Company under this Agreement or any other agreement or under applicable law or the Company’s articles of incorporation or by-laws now or hereafter in effect relating to indemnification by reason of Indemnitee’s Corporate Status, and/or (iii) recovery under directors’ and officers’ liability insurance policies maintained by the Company.

 

 

6.                  Notification and Defense of Proceeding.

 

(a)               Notice. Promptly after receipt by Indemnitee of notice of the commencement of any Proceeding, Indemnitee will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company of the commencement thereof; but the omission so to notify the Company will not relieve it from any liability that it may have to Indemnitee.

 

(b)               Defense. With respect to any Proceeding as to which Indemnitee notifies the Company of the commencement thereof, the Company will be entitled to participate in the Proceeding at its own expense and except as otherwise provided below, to the extent the Company so wishes, it may assume the defense thereof with counsel reasonably satisfactory to Indemnitee. Indemnitee shall have the right to employ his own counsel in such Proceeding, but all Expenses related thereto incurred after notice from the Company of its assumption of the defense shall be at Indemnitee’s expense unless: (i) the employment of counsel by Indemnitee has been authorized by the Company, (ii) Indemnitee has reasonably determined that there may be a conflict of interest between Indemnitee and the Company in the defense of the Proceeding, (iii) after a Change in Control, the employment of counsel by Indemnitee has been approved by the Independent Counsel, or (iv) the Company shall not within sixty (60) calendar days in fact have employed counsel to assume the defense of such Proceeding, in each of which case all Expenses of the Proceeding shall be borne by the Company; and (v) if the Company has selected counsel to represent Indemnitee and other current and former directors, officers and employees of the Company in the defense of a Proceeding, and a majority of such persons, including Indemnitee, reasonably object to such counsel selected by the Company pursuant to this Section 6(b), then such persons, including Indemnitee, shall be permitted to employ one (1) additional counsel of their choice and the reasonable fees and expenses of such counsel shall be at the expense of the Company; provided, however, that such counsel shall be chosen from amongst the list of counsel, if any, approved by any company with which the Company obtains or maintains insurance. In the event separate counsel is retained by an Indemnitee pursuant to this Section 6(b), the Company shall cooperate with Indemnitee with respect to the defense of the Proceeding, including making documents, witnesses and other reasonable information related to the defense available to the Indemnitee and such separate counsel pursuant to joint-defense agreements or confidentiality agreements, as appropriate. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the determination provided for in (ii) above.

 

(c)               Settlement of Claims. The Company shall not be liable to indemnify Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected without the Company’s written consent, provided, however, that if a Change in Control has occurred, the Company shall be liable for indemnification of Indemnitee for amounts paid in settlement if the Independent Counsel has approved the settlement. The Company shall not settle any Proceeding in which Indemnitee is or could have been a party without Indemnitee’s written consent unless such settlement solely involves the payment of money (which shall be paid or compensated by the Company) and includes a complete and unconditional release of the Indemnitee from all liability on any claims that are the subject matter of such Proceeding. Neither the Company nor the Indemnitee will unreasonably withhold their consent to any proposed settlement. The Company shall not be liable to indemnify the Indemnitee under this Agreement with regard to any judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action; the Company’s liability hereunder shall not be excused if participation in the Proceeding by the Company was barred by this Agreement.

 

 

7.                  Establishment of Trust. In the event of a Change in Control or a Potential Change in Control, the Company shall, upon written request by Indemnitee, create a Trust for the benefit of the Indemnitee and from time to time upon written request of Indemnitee shall fund the Trust in an amount sufficient to satisfy any and all Expenses reasonably anticipated at the time of each such request to be incurred in connection with investigating, preparing for, participating in, and/or defending any Proceeding. The amount or amounts to be deposited in the Trust pursuant to the foregoing funding obligation shall be determined by the Reviewing Party. The terms of the Trust shall provide that upon a Change in Control, (i) the Trust shall not be revoked or the principal thereof invaded, without the written consent of the Indemnitee, (ii) the Trustee shall advance, within ten business days of a request by the Indemnitee, any and all Expenses to the Indemnitee (and the Indemnitee hereby agrees to reimburse the Trust under the same circumstances for which the Indemnitee would be required to reimburse the Company under Section 2(c) of this Agreement), (iii) the Trust shall continue to be funded by the Company in accordance with the funding obligation set forth above, (iv) the Trustee shall promptly pay to the Indemnitee all amounts for which the Indemnitee shall be entitled to indemnification pursuant to this Agreement or otherwise, and (v) all unexpended funds in the Trust shall revert to the Company upon a final determination by the Reviewing Party or a court of competent jurisdiction, as the case may be, that the Indemnitee has been fully indemnified under the terms of this Agreement. The Trustee shall be chosen by the Indemnitee. Nothing in this Section 7 shall relieve the Company of any of its obligations under this Agreement. All income earned on the assets held in the Trust shall be reported as income by the Company for federal, state, local, and foreign tax purposes. The Company shall pay all costs of establishing and maintaining the Trust and shall indemnify the Trustee against any and all expenses (including attorneys’ fees), claims, liabilities, loss, and damages arising out of or relating to this Agreement or the establishment and maintenance of the Trust.

 

8.                  Non-Exclusivity. The rights of Indemnitee hereunder shall be in addition to any other rights Indemnitee may have under the laws of the State of Delaware, the Company’s articles of incorporation, by-laws, applicable law, or otherwise. . To the extent that a change in applicable law (whether by statute or judicial decision) permits greater indemnification by agreement than would be afforded currently under the Company’s articles of incorporation, by-laws, applicable law, or this Agreement, it is the intent of the parties that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change.

 

9.                  Liability Insurance. To the extent the Company maintains an insurance policy or policies providing directors’ or officers’ liability insurance, Indemnitee, if a director or officer of the Company, shall be covered by such policy or policies, in accordance with its or their terms. To the extent that the Company maintains any policies of directors’ and officers’ liability insurance, the Company shall maintain similar and equivalent insurance for the benefit of Indemnitee.

 

 

10.              Period of Limitations. No legal action shall be brought and no cause of action shall be asserted by or on behalf of the Company or any affiliate of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors, or personal or legal representatives after the expiration of two (2) years from the date of accrual of such cause of action, or such longer period as may be required or permitted by federal or state law under the circumstances. Any claim or cause of action of the Company or its affiliate shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action the shorter period shall govern.

 

11.              Amendment of this Agreement. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. No waiver of any of the provisions of this Agreement shall operate as a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver. Except as specifically provided herein, no failure to exercise or any delay in exercising any right or remedy hereunder shall constitute a waiver thereof. This Agreement shall supersede and replace any prior indemnification agreements entered into by and between the Company and Indemnitee and any such prior agreements shall be terminated upon execution of this Agreement.

 

12.              Subrogation. In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights.

 

13.              Contribution. To the fullest extent permissible under applicable law, if the indemnification and hold harmless rights provided for in this Agreement are unavailable to Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu of indemnifying or holding harmless Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for judgments, liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee. The Company hereby agrees to fully indemnify and hold harmless Indemnitee from any claims for contribution which may be brought by officers, directors or employees of the Company other than Indemnitee who may be jointly liable with Indemnitee. If, for any reason, Indemnitee shall elect or be required by applicable law or court order to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall contribute such amount of Expenses, judgments, fines and amounts paid in settlement that is actually and reasonably incurred and paid or payable by Indemnitee and that is proportionate to the relative benefits from the transaction or events from which such action, suit or proceeding arose received by (a) the Company and all officers, directors or employees of the Company (excluding Indemnitee), who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and (b) Indemnitee, on the other hand.

 

 

14.              No Duplication of Payments. The Company shall not be liable under this Agreement to make any payment in connection with any claim made against Indemnitee to the extent Indemnitee has otherwise actually received payment (under any insurance policy, by law, or otherwise) of the amounts otherwise indemnifiable hereunder.

 

15.              Binding Effect. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation, or otherwise to all or substantially all of the business and/or assets of the Company, spouses, heirs, and personal and legal representatives. The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation, or otherwise) to all, substantially all, or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. This Agreement shall continue in effect regardless of whether Indemnitee continues to serve as a director, officer or employee of the Company or of any other enterprise at the Company’s request.

 

16.              Severability. If any provision (or portion thereof) of this Agreement shall be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of this Agreement containing any provision held to be invalid, void, or otherwise unenforceable, that is not itself invalid, void, or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, void, or unenforceable.

 

17.              Governing Law and Consent to Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware applicable to contracts made and to be performed in such State without giving effect to the principles of conflicts of laws. The Company and Indemnitee hereby irrevocably and unconditionally: (a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court and not in any other state or federal court in the United States of America or any court in any other country; (b) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement; (c) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court; and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial.

 

18.              Notices. All notices, demands, and other communications required or permitted hereunder shall be made in writing and shall be deemed to have been duly given if delivered by hand, against receipt, or sent by overnight delivery, or mailed, postage prepaid, certified or registered mail, return receipt requested, and addressed to the Company at the location below, or if sent by email to the recipient indicated below:

 

 

Har Hotzvim, 13 Hartom Street
P.O. Box 45157
Jerusalem 9777513, Israel
Attn: Corporate Secretary

 

and to Indemnitee at an address or email provided by Indemnitee to the Company.

 

Notice of change of address shall be effective only when done in accordance with this Section. All notices complying with this Section shall be deemed to have been received on the date of delivery or on the third business day after mailing.

 

19.              Signature. This Agreement and any amendments may be executed in one or more counterparts="https://cdn.kscope.io/b62db10377642608fc786f8ac2e4d833-, all of which shall be considered one and the same agreement. Any such counterpart, to the extent delivered by fax or .pdf, .tif, .gif, .jpg" or similar attachment to email will be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.

 

 

IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the day specified above.

 

	COMPANY:
	Mobileye Global Inc., a Delaware corporation
	By:
		Printed Name:
		Its:
	INDEMNITEE:
	By:
		Printed Name: [INDEMNITEE]

 

 

 

Exhibit 10.2

 

MASTER TRANSACTION AGREEMENT

 

between

 

INTEL CORPORATION

 

and

 

MOBILEYE GLOBAL INC.

 

 

TABLE OF CONTENTS

 

Article I DOCUMENTS AND ITEMS TO BE DELIVERED ON THE IPO DATE		1
Section 1.1	Documents to be delivered by Intel	1
Section 1.2	Documents to be delivered by Mobileye	1
Article II THE IPO AND ACTIONS PENDING THE IPO; DISTRIBUTION		2
Section 2.1	Transactions prior to the IPO	2
Section 2.2	Cooperation	2
Section 2.3	Conditions precedent to Consummation of the IPO	2
Section 2.4	Distribution	3
Article III COVENANTS AND OTHER MATTERS		4
Section 3.1	Other Agreements	4
Section 3.2	Agreement for Exchange of Information	4
Section 3.3	Auditors and Audits; Financial Statements; Accounting Matters; Compliance with Laws, Policies and Regulations	5
Section 3.4	Confidentiality	9
Section 3.5	Privileged Matters	10
Section 3.6	Future Litigation and Other Proceedings	11
Section 3.7	Mail and other Communications	12
Section 3.8	Employment Matters	12
Section 3.9	Payment of Expenses	12
Section 3.10	Dispute Resolution	13
Section 3.11	Most Favored Status	14
Section 3.12	Governmental Approvals	14
Section 3.13	No Representation or Warranty	14
Section 3.14	Guarantees	16
Section 3.15	Minimum Cash Requirement	16
Section 3.16	Notifiable Transactions	16
Section 3.17	Transition to a Classified Board	16
Article IV REGISTRATION RIGHTS		17
Section 4.1	Demand Registration	17
Section 4.2	Shelf Registration	18
Section 4.3	Piggyback Registration	20
Section 4.4	Expenses	21
Section 4.5	Blackout Period	21
Section 4.6	Obligations of Mobileye	22
Section 4.7	Indemnification and Contribution	26
Section 4.8	Rule 144 and Form S-3	28
Section 4.9	Holdback Agreement	28
Section 4.10	Term	29
Article V MUTUAL RELEASES; INDEMNIFICATION		29
Section 5.1	Release of Pre-IPO Date Claims	29
Section 5.2	Indemnification by Mobileye	30
Section 5.3	Indemnification by Intel	31
Section 5.4	Ancillary Agreement Liabilities	32
Section 5.5	Other Agreements Evidencing Indemnification Obligations	32
Section 5.6	Reductions for Insurance Proceeds and other Recoveries	32
Section 5.7	Procedures for Defense, Settlement and Indemnification of the Third-Party Claims	33
Section 5.8	Additional Matters	34
Section 5.9	Survival of Indemnities	35

 

 

Article VI OPTION		35
Section 6.1	Option	35
Section 6.2	Notice	36
Section 6.3	Option Exercise and Payment	36
Section 6.4	Termination of Option	36
Article VII MISCELLANEOUS		37
Section 7.1	Consent of Intel	37
Section 7.2	Limitation of Liability	37
Section 7.3	Entire Agreement	37
Section 7.4	Governing Law and Jurisdiction	37
Section 7.5	Termination; Amendment	37
Section 7.6	Notices	38
Section 7.7	Counterparts	38
Section 7.8	Binding Effect; Assignment	38
Section 7.9	Severability	39
Section 7.10	Failure or Indulgence not Waiver; Remedies Cumulative	39
Section 7.11	Authority	39
Section 7.12	Interpretation	39
Section 7.13	Conflicting Agreements	40
Section 7.14	Third-Party Beneficiaries	40
Article VIII DEFINITIONS		40
Section 8.1	Defined Terms	40
Section 8.2	Additional Definitions	47

 

 

MASTER TRANSACTION AGREEMENT

 

This Master Transaction Agreement is dated as of [●], 2022, between Intel Corporation, a Delaware corporation (“Intel”), and Mobileye Global Inc., a Delaware corporation (“Mobileye,” with each of Intel and Mobileye a “Party,” and together, the “Parties”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in Article VIII hereof.

 

RECITALS

 

WHEREAS, Intel is, through direct and indirect wholly owned subsidiaries, the beneficial owner of all the issued and outstanding common stock of Mobileye;

 

WHEREAS, Mobileye is engaged in the business of the development and deployment of advanced driver assistance systems and autonomous driving technologies and solutions, as more completely described in a Registration Statement on Form S-1 (File No. 333-[●]) filed with the Securities and Exchange Commission (“Commission”) under the Securities Act (the “IPO Registration Statement”);

 

WHEREAS, Intel and Mobileye currently contemplate that Mobileye will consummate an initial public offering (“IPO”) pursuant to the IPO Registration Statement; and

 

WHEREAS, the Parties intend in this Agreement, including the Exhibits and Schedules hereto, to set forth certain arrangements between Intel and Mobileye regarding the relationship of the Parties from and after the time of the pricing of the IPO (the “IPO Date”).

 

NOW, THEREFORE, in consideration of the foregoing and the terms, conditions, covenants and provisions set forth in this Agreement, Intel and Mobileye covenant and agree as follows:

 

Article I
DOCUMENTS AND ITEMS TO BE
DELIVERED ON THE IPO DATE

 

Section 1.1            Documents to be delivered by Intel. On or prior to the IPO Date, Intel will deliver, or will cause its appropriate Subsidiaries to deliver, to Mobileye counterparts to the agreements listed on Schedule I and such other agreements, documents or instruments as the Parties may agree are necessary or desirable in order to achieve the purposes hereof (collectively, the “Inter-Company Agreements”).

 

Section 1.2            Documents to be delivered by Mobileye. On or prior to the IPO Date, Mobileye will deliver, or will cause its appropriate Subsidiaries to deliver, to Intel counterparts to, or copies of, as applicable, all of the Inter-Company Agreements.

 

 

Article II
THE IPO AND ACTIONS PENDING THE IPO; DISTRIBUTION

 

Section 2.1            Transactions prior to the IPO. Subject to the occurrence of the events described in this Article II, Intel and Mobileye intend to consummate the IPO and to take, or cause to be taken, the actions specified in this Section 2.1.

 

(a)              Registration Statement. Mobileye has filed the IPO Registration Statement, and intends to file such amendments or supplements thereto as may be necessary or desirable in order to cause the same to become and remain effective as required by law or by the managing underwriters for the IPO (the “Underwriters”), including, without limitation, filing such amendments or supplements to the IPO Registration Statement as may be required by the underwriting agreement to be entered into among Mobileye and the Underwriters (the “Underwriting Agreement”), the Commission or federal, state or foreign securities laws. Intel and Mobileye also intend to cooperate in preparing, filing with the Commission and causing to become effective a registration statement registering the Class A common stock of Mobileye under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and any registration statements, prospectuses or amendments or supplements thereto which are required to reflect the establishment of, or amendments to, any employee benefit and other plans necessary or appropriate in connection with the IPO or the other transactions contemplated by this Agreement.

 

(b)              Underwriting Agreement. Mobileye shall enter into the Underwriting Agreement, which shall in form and substance be satisfactory to Intel and Mobileye, and Mobileye shall comply with its obligations thereunder.

 

(c)               NASDAQ Listing. Mobileye shall prepare, file and use its commercially reasonable efforts to list its Class A common stock issued in the IPO on NASDAQ (“NASDAQ”), subject to official notice of issuance.

 

Section 2.2            Cooperation. Mobileye shall consult with, and cooperate in all respects with, Intel in connection with the pricing and marketing, including any roadshow or other presentations, of the Class A common stock of Mobileye to be offered in the IPO and shall, at Intel’s direction, promptly take any and all actions requested by Intel or otherwise necessary or desirable to consummate the IPO, including, without limitation, as contemplated by the IPO Registration Statement, this Agreement, any Inter-Company Agreement or the Underwriting Agreement.

 

Section 2.3            Conditions precedent to Consummation of the IPO. The obligations of the Parties to consummate the IPO shall be conditioned on the satisfaction or waiver in writing of each of the following conditions (collectively, the “IPO Conditions”):

 

(a)              Registration Statement. The IPO Registration Statement shall have been declared effective by the Commission, and there shall be no stop order in effect with respect thereto;

 

(b)              Blue Sky. The actions and filings with regard to applicable securities and blue sky laws of any state (and any comparable laws under any foreign jurisdictions) shall have been taken and, where applicable, have become effective or been accepted;

 

(c)              NASDAQ Listing. The Class A common stock of Mobileye to be issued in the IPO shall have been accepted for listing on the NASDAQ, subject only to official notice of issuance;

 

(d)              Underwriting Agreement. Mobileye shall have entered into the Underwriting Agreement and all conditions to the obligations of Mobileye and the Underwriters shall have been satisfied or waived by the party that is entitled to the benefit thereof;

 

 

 

(e)               Stock Ownership. Intel shall be satisfied, in its sole discretion, that it will have an Ownership Percentage of at least eighty and one-tenth percent (80.1%) immediately following the consummation of the IPO, and that Mobileye will have no class of Mobileye Capital Stock other than the Common Stock outstanding, immediately following the IPO;

 

(f)                No Legal Restraints. No order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the IPO or any of the other transactions contemplated by this Agreement or any Inter-Company Agreement shall be in effect;

 

(g)               Deliveries. Each Party shall have made the deliveries required pursuant to Section 1.1 and Section 1.2, respectively; and

 

(h)               Other Actions. Such other actions as the Parties hereto may, based upon the advice of counsel, reasonably request to be taken prior to the IPO in order to assure the successful completion of the IPO, shall have been taken.

 

Mobileye shall use its reasonable commercial efforts to satisfy, or cause to be satisfied, the IPO Conditions, it being understood and acknowledged by the Parties that, notwithstanding anything to the contrary in this Agreement, Intel shall have sole and absolute discretion to proceed with or abandon the IPO.

 

Section 2.4            Distribution.

 

(a)               Distribution Generally. Although neither party has any plan or intent to effectuate a Distribution, at any time after the IPO Date, if Intel, in its sole and absolute discretion, advises Mobileye that Intel intends to pursue a Distribution, Mobileye agrees to take all actions reasonably requested by Intel to facilitate such Distribution.

 

(b)               Intel’s Sole Discretion. Intel shall, in its sole and absolute discretion, determine whether to proceed with all or part of a Distribution, the date of the consummation of such Distribution and all terms of such Distribution, including, without limitation, the form, structure and terms of any transaction(s) and/or offering(s) to effect such Distribution and the timing of and conditions to the consummation of such Distribution. In addition, Intel may at any time and from time to time until the Distribution Date, modify or change the terms of such Distribution, including, without limitation, by accelerating or delaying the timing of the consummation of all or part of such Distribution. Mobileye shall cooperate with Intel in all respects to accomplish such Distribution and shall, at Intel’s direction, promptly take any and all actions that Intel deems reasonably necessary or desirable to effect such Distribution. Without limiting the generality of the foregoing, Mobileye shall, at Intel’s direction, cooperate with Intel, and execute and deliver, or use its reasonable commercial efforts to cause to have executed and delivered, all instruments, including instruments of conveyance, assignment and transfer, and to make all filings with, and to obtain all consents, approvals or authorizations of, any domestic or foreign governmental or regulatory authority requested by Intel in order to consummate and make effective such Distribution. If, in connection with any Distribution, Intel makes a Request (as defined herein) for a Demand Registration (as defined herein), the terms and the conditions set forth in Article IV hereof shall govern.

 

 

Article III
COVENANTS AND OTHER MATTERS

 

Section 3.1            Other Agreements. Intel and Mobileye 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 Inter-Company Agreements.

 

Section 3.2            Agreement for Exchange of Information.

 

(a)               Generally. Each of Intel and Mobileye agrees to provide, or cause to be provided, to the other, at any time, as soon as reasonably practicable after written request therefor, all reports and other Information regularly provided by one Party to the other prior to the IPO Date and any Information in the possession or under the control of such Party that the requesting Party reasonably needs, in each case, (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting Party (including under applicable securities laws) by a Governmental Authority having jurisdiction over the requesting Party, (ii) 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, (iii) to comply with its obligations under this Agreement or any Inter-Company Agreement or (iv) during the period from the IPO Date until the Distribution Date and thereafter; all to the extent such Information and cooperation is necessary to comply with such reporting, filing and disclosure obligations, for the preparation of financial statements or completing an audit, and as reasonably necessary to conduct the ongoing businesses of Intel or Mobileye, as the case may be; provided, however, that in the event that any Party determines that any such provision of Information could be commercially detrimental, violate any law or agreement, or waive any attorney-client 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. Each of Intel and Mobileye agree to make their respective personnel available to discuss the Information exchanged pursuant to this Section 3.2. Each Party will use its commercially reasonable efforts to ensure that Information provided to the other Party hereunder is accurate and complete.

 

(b)               Internal Accounting Controls; Financial Information. Except as otherwise provided in the Administrative Services Agreement, after the IPO Date, (i) each Party shall maintain in effect at its own cost and expense adequate systems and controls for its business to the extent necessary to enable the other Party to satisfy its reporting, tax return, accounting, audit and other obligations, and (ii) each Party shall provide, or cause to be provided, to the other Party and its Subsidiaries in such form as such requesting Party shall request, at no charge to the requesting Party, all financial and other data and information as the requesting Party determines necessary or advisable in order to prepare its financial statements and reports or filings with any Governmental Authority. After the expiration of Intel’s obligations to provide services pursuant to the Administrative Services Agreement, Mobileye shall be solely responsible for its obligations under this Section 3.2(b).

 

(c)               Ownership of Information. Any Information owned by a Party that is provided to a requesting Party pursuant to this Section 3.2 shall be deemed to remain the property of the providing Party. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such Information.

 

 

(d)               Record Retention. To facilitate the possible exchange of Information pursuant to this Section 3.2 and other provisions of this Agreement, each Party agrees to use its commercially reasonable efforts for a period of seven (7) years after the first date upon which members of the Intel Group cease to own at least twenty percent (20%) of the then-outstanding number of shares of Common Stock and for such longer period as may be required by any Governmental Authority, any litigation matter, any applicable law or any Inter-Company Agreement (the “Retention Period”), to retain all Information in its respective possession or control, subject to compliance with such Party’s bona fide record retention policies and/or practices as in effect on the IPO Date. However, except as set forth in the Tax Sharing Agreement, at any time after the Distribution Date, each Party may amend its respective record retention policies at such Party’s discretion; provided, however, that if a Party desires to effect such an amendment during the Retention Period, then the amending Party must give thirty (30) days prior written notice of such change in the policy to the other Party to this Agreement. Each Party shall use commercially reasonable efforts to retain and not to destroy, or permit any of its Subsidiaries to destroy, any Information that exists on the IPO Date (other than Information that is permitted to be destroyed under the current respective bona fide record retention policies of each Party) and that falls under the categories listed in Section 3.2(a), without first notifying the other Party of the proposed destruction and giving the other Party the opportunity to take possession or make copies of such Information prior to such destruction.

 

(e)               Other Agreements Providing For Exchange of Information. The rights and obligations granted under this Section 3.2 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 Inter-Company Agreement.

 

(f)                Production of Witnesses; Records; Cooperation. During the Retention Period, and except in the case of a legal or other proceeding by one Party against the other Party, each Party hereto shall use its commercially reasonable efforts to make available to each other Party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of such Party 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 legal, administrative or other proceeding in which the requesting Party may from time to time be involved, regardless of whether such legal, administrative or other proceeding is a matter with respect to which indemnification may be sought hereunder. The requesting Party shall bear all costs and expenses in connection therewith.

 

Section 3.3            Auditors and Audits; Financial Statements; Accounting Matters; Compliance with Laws, Policies and Regulations. Each Party agrees that:

 

(a)               Change in Auditors. For so long as Intel is providing accounting and financial services pursuant to the Administrative Services Agreement and thereafter to the extent necessary for the purpose of preparing financial statements or completing a financial statement audit, Mobileye shall provide Intel as much prior notice as reasonably practical of any change in the independent certified public accountants used by Mobileye to serve as its (and its Subsidiaries’) independent certified public accountants (“Mobileye’s Auditors”) for purposes of providing an opinion on its consolidated financial statements.

 

 

(b)               Date of Auditors’ Opinion and Quarterly Reviews. For so long as Intel is providing accounting and financial services pursuant to the Administrative Services Agreement and thereafter to the extent necessary for the purpose of preparing financial statements or completing a financial statement audit, (i) Mobileye shall use its commercially reasonable efforts to enable Mobileye’s Auditors to complete a sufficient portion of their annual audit and quarterly review procedures such that they will provide clearance on Mobileye’s annual and quarterly financial statements to the materiality levels reasonably required to enable Intel’s Auditors to provide clearance on Intel’s annual and quarterly financial statements, and (ii) at the point Mobileye results are greater than 10% of Intel’s consolidated results, or at the point Mobileye results are expected to be greater than 10% of Intel’s consolidated results within the next twelve (12) month period, Mobileye shall use its commercially reasonable efforts to enable Mobileye’s Auditors to complete their audit such that they will date their opinion on Mobileye’s audited annual financial statements on the same date that the independent certified public accountants used by Intel to serve as its (and its Subsidiaries’) independent certified public accountants (“Intel’s Auditors”) date their opinion on Intel’s audited annual financial statements, and to enable Intel to meet its timetable for the printing, filing and public dissemination of Intel’s annual financial statements; provided that Intel will provide Mobileye with reasonable advance notice of at least two (2) calendar quarters prior to any relevant auditing or filing-related deadlines.

 

(c)               Annual and Quarterly Financial Statements. For so long as Intel is providing accounting and financial services pursuant to the Administrative Services Agreement and thereafter to the extent necessary for the purpose of preparing financial statements or completing a financial statement audit, Mobileye shall not change its fiscal year and Mobileye shall provide to Intel on a timely basis all Information that Intel reasonably requires to meet its schedule for the preparation, printing, filing, and public dissemination of Intel’s annual and quarterly financial statements. Without limiting the generality of the foregoing, Mobileye will provide all required financial Information with respect to Mobileye to Mobileye’s Auditors in a sufficient and reasonable time and in sufficient detail to permit Mobileye’s Auditors to take all steps and perform all reviews necessary to provide sufficient assistance to Intel’s Auditors or will work directly with Intel’s Auditors to provide required information with respect to financial Information to be included or contained in Intel’s annual and quarterly financial statements; provided that Intel will provide Mobileye with reasonable advance notice of any relevant auditing or filing-related deadlines. Similarly, Intel shall provide to Mobileye on a timely basis all financial Information that Mobileye reasonably requires to meet its schedule for the preparation, printing, filing, and public dissemination of Mobileye’s annual and quarterly financial statements. Without limiting the generality of the foregoing, Intel will provide all required financial Information with respect to Intel and its Subsidiaries to Mobileye’s Auditors in a sufficient and reasonable time and in sufficient detail to permit Mobileye’s Auditors to take all steps and perform all reviews necessary to provide sufficient assistance to Mobileye’s Auditors with respect to Information to be included or contained in Mobileye’s annual and quarterly financial statements.

 

(d)               Certifications and Attestations.

 

(i)            For so long as Intel is providing accounting and financial services pursuant to the Administrative Services Agreement and thereafter to the extent necessary for the timely filing by Intel of annual and quarterly reports under the Exchange Act or in connection with any investigations of prior periods, Mobileye shall cause its principal executive officer and principal financial officer to provide to Intel on a timely basis and as reasonably requested by Intel (A) any certificates requested as support for the certifications and attestations required by Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002 to be filed with such annual and quarterly reports, (B) any certificates or other written Information which such principal executive officer or principal financial officer received as support for the certificates provided to Intel and (C) a reasonable opportunity to discuss with such principal financial officer and other appropriate officers and employees of Mobileye any issues reasonably related to the foregoing.

 

 

(ii)            For so long as Intel is providing accounting and financial services pursuant to the Administrative Services Agreement and thereafter to the extent necessary for the timely filing by Mobileye of annual and quarterly reports under the Exchange Act or in connection with any investigations of prior periods, Intel shall cause its appropriate officers and employees to provide to Mobileye on a timely basis and as reasonably requested by Mobileye (A) any certificates requested as support for the certifications and attestations required by Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002 to be filed with such annual and quarterly reports, (B) any certificates or other Information which such appropriate officers and employees received as support for the certificates provided to Mobileye and (C) a reasonable opportunity to discuss with such appropriate officers and employees any issues reasonably related to the foregoing.

 

(e)               Earnings Information. For so long as Intel is required to consolidate the results of operations and financial position of Mobileye, Intel and Mobileye will consult with each other as to the timing of their annual and quarterly earnings releases and any interim financial guidance for a current or future period and will give each other party the opportunity to review the information therein relating to Mobileye and to comment thereon. Intel and Mobileye will make reasonable efforts to issue their respective annual and quarterly earnings releases at approximately the same time on the same date. Intel and Mobileye shall coordinate the timing of their respective earnings release conference calls such that Mobileye shall be permitted to hold such calls prior to those of Intel. No later than 72 hours prior to the time and date that a party intends to publish its regular annual or quarterly earnings release or any financial guidance for a current or future period, (i) in the case of Mobileye, Mobileye will deliver to Intel copies of substantially final drafts of all related filings, press releases and such other earnings-related materials as may be agreed to in writing between the parties, in each case, to be made available by any representative of Mobileye to employees of Mobileye or any of its Subsidiaries (other than, for the avoidance of doubt, employees participating in the preparation or review thereof) or to the public concerning any matters that could be reasonably likely to have a material financial impact on the earnings, results of operations, financial condition or prospects of Intel or Mobileye and (ii) in the case of Intel, Intel will deliver to Mobileye copies of relevant portions (as reasonably determined by Intel) of substantially final drafts of all related filings, press releases and other statements to be made available by any representative of Intel to employees of Intel or any of its Subsidiaries (other than, for the avoidance of doubt, employees participating in the preparation or review thereof) or to the public to the extent they include any matters that could be reasonably likely to have a material financial impact on the earnings, results of operations, financial condition or prospects of Mobileye. In addition, prior to the issuance of any such press release or public statement that meets the criteria set forth in the preceding two sentences, the issuing party will consult with the other party regarding any changes (other than typographical or other similar minor changes) to such substantially final drafts or portions of such drafts. Immediately following the issuance thereof, the issuing party will deliver to the other party copies of final versions of all press releases and other public statements (in the case of Intel, solely to the extent reasonably likely to have a material financial impact on the earnings, results of operations, financial condition or prospects of Mobileye.

 

 

(f)                Compliance With Laws, Policies and Regulations. Until the later of (i) Intel ceasing to be a “controlling person” as such term is used in the Securities Act and (ii) such date on which Intel ceases to provide legal, financial or accounting services under the Administrative Services Agreement and thereafter to the extent necessary for the purpose of preparing financial statements or completing a financial statement audit, all governmental audits are complete and the applicable statute of limitations for tax matters has expired, (x) Mobileye shall comply with all financial accounting and reporting rules, policies and directives of Intel, to the extent such rules, policies and directives have been previously communicated to Mobileye, and fulfill all timing and reporting requirements, applicable to Intel’s Subsidiaries that are consolidated with Intel for financial statement purposes or compliance with applicable laws and comply with all policies and directives identified by Intel as critical to legal and regulatory compliance; provided, however, that nothing contained herein shall preclude modifications to legal and regulatory compliance policies or directives as shall, in the opinion of counsel to Mobileye or Intel, be necessary or desirable to comply with then applicable law; and (y) Mobileye shall not adopt policies or directives relating to legal or regulatory compliance that conflict with the policies and directives identified by Intel as critical to legal and regulatory compliance. Without limiting the foregoing, Mobileye shall comply with all financial accounting and reporting rules and policies, and fulfill all timing and reporting requirements, under applicable federal securities laws and NASDAQ rules. Mobileye shall not be deemed to be in breach of its obligations set forth in this provision to the extent that Mobileye is unable to comply with such obligations as a result of the actions or inactions of Intel.

 

(g)               Identity of Personnel Performing the Annual Audit and Quarterly Reviews. For so long as Intel is providing accounting and financial services pursuant to the Administrative Services Agreement and thereafter to the extent necessary for the purpose of preparing financial statements or completing a financial statement audit, (i) Mobileye shall authorize Mobileye’s Auditors to make available to Intel’s Auditors both the personnel who performed or will perform the annual audits and quarterly reviews of Mobileye and work papers related to the annual audits and quarterly reviews of Mobileye, in all cases within a reasonable time prior to Mobileye’s Auditors’ opinion date, so that Intel’s Auditors are able to perform the procedures they consider necessary to take responsibility for the work of Mobileye’s Auditors as it relates to Intel’s Auditors’ report on Intel’s financial statements, all within sufficient time to enable Intel to meet its timetable for the printing, filing and public dissemination of Intel’s annual and quarterly statements, and (ii) Intel shall authorize Intel’s Auditors to make available to Mobileye’s Auditors both the personnel who performed or will perform the annual audits and quarterly reviews of Intel and work papers related to the annual audits and quarterly reviews of Intel, in all cases within a reasonable time prior to Intel’s Auditors’ opinion date, so that Mobileye’s Auditors are able to perform the procedures they consider necessary to take responsibility for the work of Intel’s Auditors as it relates to Mobileye’s Auditors’ report on Mobileye’s statements, all within sufficient time to enable Mobileye to meet its timetable for the printing, filing and public dissemination of Mobileye’s annual and quarterly financial statements.

 

(h)               Access to Books and Records. Until the later of (i) Intel ceasing to be a “controlling person” as such term is used in the Securities Act and (ii) such date on which Intel ceases to provide legal, financial or accounting services under the Administrative Services Agreement and thereafter to the extent necessary for the purpose of preparing financial statements or completing a financial statement audit, all governmental audits are complete and the applicable statute of limitations for tax matters has expired, Mobileye shall provide Intel’s internal auditors, counsel and other designated representatives of Intel access during normal business hours to (i) the premises of Mobileye and all Information (and duplicating rights) within the knowledge, possession or control of Mobileye and (ii) the officers and employees of Mobileye, so that Intel may conduct reasonable audits relating to Mobileye’s compliance function or the financial statements provided by Mobileye pursuant hereto as well as to the internal accounting controls and operations of Mobileye. Similarly, Intel shall provide Mobileye’s internal auditors, counsel and other designated representatives of Mobileye access during normal business hours to (x) the premises of Intel and its Subsidiaries and all Information (and duplicating rights with respect thereto) within the knowledge, possession or control of Intel and its Subsidiaries and (y) the officers and employees of Intel and its Subsidiaries, so that Mobileye may conduct reasonable audits relating to the financial statements provided by Intel pursuant hereto as well as to the internal accounting controls and operations of Intel and its Subsidiaries.

 

 

(i)                 Notice of Change in Accounting Principles. Until the first Intel fiscal year end occurring after the Distribution Date and thereafter if a change in accounting principles by a Party hereto would affect the historical financial statements of the other Party, (i) neither Party shall make or adopt any significant changes in its accounting estimates or accounting principles from those in effect on the IPO Date without first consulting with the other Party, and if requested by the other Party, such Party’s independent public accountants with respect thereto, (ii) Intel shall give Mobileye as much prior notice as reasonably practical of any proposed determination of, or any significant changes in, its accounting estimates or accounting principles from those in effect on the IPO Date, (iii) Intel will consult with Mobileye and, if requested by Mobileye, Intel will consult with Mobileye’s independent public accountants with respect thereto, (iv) Mobileye shall give Intel as much prior notice as reasonably practical of any proposed determination of, or any significant changes in, its accounting estimates or accounting principles from those in effect on the IPO Date, and (v) Mobileye will consult with Intel and, if requested by Intel, Mobileye will consult with Intel’s independent public accountants with respect thereto.

 

(j)                 Conflict With Third-Party Agreements. Nothing in Section 3.2 or Section 3.3 shall require Mobileye to violate any agreement outstanding on the date hereof with any third party regarding the confidentiality of confidential and proprietary information relating to that third party or its business; provided, however, that in the event that Mobileye is required under Section 3.2 or Section 3.3 to disclose any such Information, Mobileye shall use its commercially reasonable efforts to seek to obtain such third party’s consent to the disclosure of such information.

 

Section 3.4            Confidentiality. Each of Intel and Mobileye agrees to be bound by and comply with the terms and provisions of that certain Corporate Non-Disclosure Agreement, dated as of [●], 2022, by and between Intel and Mobileye.

 

 

Section 3.5            Privileged Matters.

 

(a)               Intel and Mobileye agree that their respective rights and obligations to maintain, preserve, assert or waive any or all privileges belonging to either corporation or their Subsidiaries with respect to the Mobileye Business or the business of Intel, including, but not limited to, the attorney-client and work product privileges (collectively, “Privileges”), shall be governed by the provisions of this Section 3.5. With respect to Privileged Information of Intel (as defined below), Intel shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Mobileye shall take no action (nor permit any of its Subsidiaries to take action) without the prior written consent of Intel that could result in any waiver of any Privilege that could be asserted by Intel or any of its Subsidiaries under applicable law and this Agreement. With respect to Privileged Information of Mobileye (as defined below), Mobileye shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Intel shall take no action (nor permit any of its Subsidiaries to take action) without the prior written consent of Mobileye that could result in any waiver of any Privilege that could be asserted by Mobileye or any of its Subsidiaries under applicable law and this Agreement. The rights and obligations created by this Section 3.5 shall apply to all Information as to which Intel or Mobileye or their respective Subsidiaries would be entitled to assert or has asserted a Privilege without regard to the effect, if any, of the Distribution (“Privileged Information”). Privileged Information of Intel includes but is not limited to: (i) all communications subject to a Privilege between counsel for Intel (which is limited to outside counsel retained by Intel and in-house counsel employed by Intel at the time) and any person who, at the time of the communication, was an employee of Intel, regardless of whether such employee was, is or becomes an employee of Mobileye or any of its Subsidiaries; and (ii) all information subject to a Privilege that counsel for Intel (which is limited to outside counsel retained by Intel and in-house counsel employed by Intel at the time) provided to Mobileye or any of its Subsidiaries regarding the Mobileye Business. Privileged Information of Mobileye includes but is not limited to all communications subject to a Privilege between counsel for the Mobileye Business (including in-house counsel who were Mobileye employees at the time, outside counsel retained by Mobileye, and current in-house counsel who were employees of Intel at the time the advice was given) and any person who, at the time of the communication, was an employee of Mobileye, regardless of whether such employee was, is or becomes an employee of Intel or any of its Subsidiaries (other than Mobileye and its Subsidiaries). In the event information could be construed as both Privileged Information of Intel and Privileged Information of Mobileye, Intel retains the Privileged Information, the information shall be considered solely Privileged Information of Intel, and Mobileye will not have authority to access to such information or waive such privilege.

 

(b)               Upon receipt by Intel or Mobileye, 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 Intel or Mobileye, as the case may be, obtains knowledge that any current or former employee of Intel or Mobileye, as the case may be, has received 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, Intel or Mobileye, 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 3.5 or otherwise to prevent the production or disclosure of Privileged Information. Intel or Mobileye, as the case may be, will not produce or disclose to any third party any of the other’s Privileged Information under this Section 3.5 unless (a) the other has provided its express written consent to such production or disclosure or (b) a court of competent jurisdiction has entered a final order not subject to interlocutory appeal or review finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule. In all instances, Intel bears the obligation to seek protection from such disclosure or production of Intel Privileged Information. Similarly, in all instances, Mobileye bears the obligation to seek protection from such disclosure or production of Mobileye Privileged Information.

 

 

(c)               Intel’s transfer of books and records pertaining to the Mobileye Business and other Information to Mobileye, if any, Intel’s agreement to permit Mobileye to obtain or retain Information existing prior to the IPO Date, Mobileye’s transfer of books and records and other Information pertaining to Intel, if any, and Mobileye’s agreement to permit Intel to obtain or retain Information existing prior to the IPO Date are made in reliance on Intel’s and Mobileye’s respective agreements, as set forth in Section 3.4 and this Section 3.5, 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 Intel or Mobileye, as the case may be. The fact that Intel Privileged Information may be in the possession of Mobileye after the IPO date or that Intel Privileged Information may be transferred from Intel to Mobileye as part of Intel’s transfer of books and records pertaining to the Mobileye Business and other Information to Mobileye shall not be asserted by Intel or Mobileye to constitute, or otherwise be deemed, a waiver of any Privilege that has been or may be asserted under this Section 3.5 or otherwise. Intel Privileged Information remains Intel’s property whether or not it remains in the physical possession of Mobileye post-IPO for any reason. Conversely, Mobileye Privileged Information remains Mobileye’s property whether or not it remains in the physical possession of Intel post-IPO for any reason. Further, both Intel and Mobileye agree to promptly return or destroy any Privileged Information belonging to the other hereunder, including any copies or information derived thereof, upon receipt of a request by the other Party. The access to Information, witnesses and individuals being granted pursuant to Section 3.2 and Section 3.3 and the disclosure to Mobileye and Intel of Privileged Information relating to the Mobileye Business or the business of Intel pursuant to this Agreement shall not be asserted by Intel or Mobileye to constitute, or otherwise be deemed, a waiver of any Privilege that has been or may be asserted under this Section 3.5 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Intel and Mobileye in, or the obligations imposed upon Intel and Mobileye by, this Section 3.5.

 

Section 3.6            Future Litigation and Other Proceedings. In the event that Mobileye (or any of its Subsidiaries or any of its or their respective officers or directors) or Intel (or any of its Subsidiaries or any of its or their respective officers or directors) at any time after the date hereof initiates or becomes subject to any litigation or other proceedings before any governmental authority or arbitration panel that involves issues relevant to the Parties’ past relationship while Mobileye was owned by Intel, the IPO, or post-IPO engagement between the Parties with respect to which the Parties have no prior agreements (as to indemnification or otherwise), the Party (and its Subsidiaries and its and their respective officers and directors) that has not initiated and is not subject to such litigation or other proceedings shall comply, at the other Party’s expense, with any reasonable requests by the other Party for assistance in connection with such litigation or other proceedings (including by way of provision of information and making available of associates or employees within their control as witnesses). In the event that Mobileye (or any of its Subsidiaries or any of its or their respective officers or directors) and Intel (or any of its Subsidiaries or any of its or their respective officers or directors) at any time after the date hereof initiate or become subject to any litigation or other proceedings before any governmental authority or arbitration panel that involves issues relevant to the Parties’ past relationship while Mobileye was owned by Intel, the IPO, or post-IPO engagement between the Parties with respect to which the Parties have no prior agreements (as to indemnification or otherwise), each Party (and its officers and directors) shall, at their own expense, cooperate on their strategies and actions with respect to such litigation or other proceedings to the extent such cooperation would not be detrimental to their respective interests and shall comply, at the expense of the requesting Party, with any reasonable requests of the other Party for assistance in connection therewith (including by way of provision of information and making available of employees or associates within their control as witnesses).

 

 

Section 3.7            Mail and other Communications. After the IPO Date, each of Intel and Mobileye may receive mail, facsimiles, packages and other communications properly belonging to the other. Accordingly, at all times after the IPO Date, each of Intel and Mobileye authorizes the other to receive and open all mail, packages and other communications received by it and not unambiguously intended for the other Party or any of the other Party’s officers or directors, and to retain the same to the extent that they relate to the business of the receiving Party or, to the extent that they do not relate to the business of the receiving Party, the receiving Party shall promptly deliver such mail, telegrams, packages or other communications, including, without limitation, notices of any liens or encumbrances on any asset transferred to Mobileye in connection with its separation from Intel, (or, in case the same relate to both businesses, copies thereof) to the other Party as provided for in Section 7.6 hereof. The provisions of this Section 3.7 are not intended to, and shall not, be deemed to constitute (a) an authorization by either Intel or Mobileye to permit the other to accept service of process on its behalf and neither Party is or shall be deemed to be the agent of the other for service of process purposes or (b) a waiver of any Privilege with respect to Privileged Information contained in such mail, telegrams, packages or other communications.

 

Section 3.8            Employment Matters.

 

(a)               For a period of two (2) years following the IPO Date, neither the Intel Group nor the Mobileye Group will, directly or indirectly, solicit active employees of the other without its consent; provided that each Party agrees to give such consent if it believes, in good faith, that consent is necessary to avoid the resignation of an employee from one Party that the other Party would wish to employ. Intel shall be deemed to have given its consent to the solicitation and hiring of the Intel Transferees (as defined in the Employee Matters Agreement) by the Mobileye Group.

 

(b)               All outstanding options to purchase shares of Intel and all other Intel equity awards held by Mobileye Group employees at the IPO Date (the “Remaining Intel Awards”) will continue to be outstanding until the earlier of (i) the date the award is exchanged pursuant to any issuer exchange offer undertaken by Intel and Mobileye, (ii) the date the award is exercised or expires under the terms of the applicable award agreement or (iii) the date the Remaining Intel Award is cancelled as a result of a Mobileye Group employee experiencing an employment termination within the meaning of the applicable award agreement governing such award or otherwise or, if later, the end of any post-termination exercise period specified in the award agreement or by the plans’ administrative committees.

 

Section 3.9            Payment of Expenses. Except as otherwise provided in this Agreement, the Inter-Company Agreements or any other agreement between the Parties relating to the IPO or the Distribution, (i) all costs and expenses of the Parties which are capitalizable in accordance with U.S. generally accepted accounting principles (“GAAP”) and applicable U.S. Securities and Exchange Commission (“SEC”) rules in connection with the IPO (including costs associated with drafting this Agreement, the Inter-Company Agreements and the documents relating to the formation of Mobileye) shall be for the account of Mobileye and paid net of IPO proceeds; (ii) all costs and expenses of the Parties in connection with the Distribution shall be for the account of and paid by Mobileye; and (iii) all costs and expenses of the Parties incurred prior to or upon the consummation of the IPO and which are not capitalizable in accordance with GAAP and applicable SEC rules, and all costs and expenses of the Parties in connection with any matter not relating to the IPO or the Distribution, shall be paid by and for the account of the Party which is the primary beneficiary of the relevant services (as reasonably agreed between the Parties) and shared costs and expenses will be apportioned between the Parties in such proportions as may be reasonably agreed between the Parties.  With respect to costs and expenses for services incurred prior to or upon the consummation of the IPO, if the Parties determine that the Party who is not the primary beneficiary of a service nevertheless initially paid for such service, the paying Party shall be reimbursed from the IPO proceeds.  With respect to costs and expenses incurred following the consummation of the IPO, each of the Parties will obtain the other Party’s approval in writing (email being acceptable) prior to incurring expenses which would be expected to be for the account of such other Party.  Notwithstanding the foregoing, Mobileye and Intel shall each be responsible for their own internal fees, costs and expenses (e.g., salaries of personnel) incurred in connection with the IPO and the Distribution.

 

 

Section 3.10        Dispute Resolution.

 

(a)               Pre-Arbitration Resolution. Except as provided in Section 3.10(c)(ii), any dispute arising out of or relating to this Agreement will be resolved as follows: a Party will send notice of the dispute, including a detailed description of the dispute and relevant supporting documents. Senior management for each Party will then try to resolve the dispute. If the Parties do not resolve the dispute within 30 calendar days after the dispute notice, either Party may send notice of a demand for mediation. The Parties will then try to resolve the dispute with a mediator.

 

(b)               Arbitration. If the Parties do not resolve the dispute within 60 calendar days after the mediation demand, either Party may send notice of the specific issues to be arbitrated and initiate arbitration by filing a Demand for Arbitration with the American Arbitration Association (“AAA”). Except as provided in Section 3.10(c)(ii), a Party may not seek relief in court. The Commercial Arbitration Rules of the AAA in effect on the date a Party files a Demand for Arbitration (the “AAA Rules”) will apply, except as follows:

 

(i)            Seat and Law. Wilmington, Delaware, will be the seat of arbitration and the location of the proceedings, which will be conducted in English. Wilmington, Delaware and United States law will be the law of the arbitration agreement (i.e., Section 3.10 (Dispute Resolution)).

 

(ii)            Limitations on Relief. Notwithstanding R-47 (Scope of Award), the arbitrator may not award (A) any remedy that prohibits a party or its customers from manufacturing, using, selling, or importing that party’s products, (B) any non-monetary relief for misappropriation of trade secrets or breach of confidentiality obligations, or (C) any remedy that requires a party to license any intellectual property rights. Neither the arbitrator nor an emergency arbitrator (as described in R-38 of the AAA Rules) may order conservatory, interim, or emergency measures. R-37 (Interim Measures) and R-38 (Emergency Measures of Protection) will not apply.

 

(iii)            Service. R-43 (Service of Notice and Communications) will not apply with regard to service of a Demand for Arbitration, which must be served in the same manner as is required to serve a summons and complaint under the Federal Rules of Civil Procedure.

 

 

(c)               Claims Not Subject to Arbitration. The following disputes will not be subject to arbitration under Section 3.10(b):

 

(i)            The state and federal courts sitting in Wilmington, Delaware, will have exclusive jurisdiction over claims seeking to: (A) prohibit a party or its customers from manufacturing, using, selling, or importing that party’s products; and (B) require a party to license any intellectual property rights. The parties consent to personal jurisdiction and venue in those courts.

 

(ii)            Claims for misappropriation of trade secrets and breach of confidentiality obligations seeking injunctive or other non-monetary relief will not be subject to arbitration (as set forth in Section 3.10(a)) or escalation (as set forth in Section 3.10(b)) and may be brought in any court that has jurisdiction over the Parties.

 

Section 3.11        Most Favored Status. Prior to the first date on which members of the Intel Group cease to beneficially own twenty percent (20%) or more of the aggregate number of shares of the then outstanding Common Stock, Mobileye agrees to sell to Intel or any member of the Intel Group upon request its commercially available products, including EyeQ chips, for internal use by Intel or members of the Intel Group, but not for resale thereof as standalone products or bundled with any products of the Intel Group or any third party. In the case of the purchase or sale of products for internal use, each Party further agrees to hold the other in most favored status. For purposes of this Agreement, “most favored status” means, solely and exclusively, that all of the product prices, terms, warranties and benefits provided by Intel to Mobileye, on the one hand, and Mobileye to Intel, on the other hand, shall be comparable to or better than the equivalent terms being offered by the Party providing the products to any single, present customer of such Party. If a Party shall enter into arrangements with any other customer of such Party providing such customer more favorable terms, this Agreement shall thereupon be deemed amended to provide the same terms to the other Party retroactive to the date of such third-party agreement. Notwithstanding the foregoing, neither Party shall be obligated to return any monies paid prior to such amendment, or to forego the receipt of any payments then accrued under the then-current arrangement.

 

Section 3.12        Governmental Approvals. To the extent that any of the transactions contemplated by this Agreement requires any Governmental Approvals, the Parties will use their commercially reasonable efforts to obtain any such Governmental Approvals.

 

Section 3.13        No Representation or Warranty.

 

(a)               Intel does not, in this Agreement or any other agreement, instrument or document contemplated by this Agreement, make any representation as to, warranty of or covenant with respect to:

 

(i)            the value of any asset or thing of value transferred, or to be transferred, to Mobileye;

 

(ii)            the freedom from encumbrance of any asset or thing of value transferred, or to be transferred, to Mobileye; provided, however, that Intel agrees to notify Mobileye promptly in the event Intel receives any notice or claim of any encumbrance on or against any asset or thing of value transferred, or to be transferred, to Mobileye;

 

(iii)            the absence of defenses or freedom from counterclaims with respect to any claim transferred, or to be transferred, to Mobileye; provided, however, that neither Intel nor its Subsidiaries have any counterclaims with respect to any claim transferred, or to be transferred, to Mobileye; or

 

(iv)            the legal sufficiency of any assignment, document or instrument delivered hereunder to convey title to any asset or thing of value upon its execution, delivery and filing.

 

 

Except as may expressly be set forth herein or in any Inter-Company Agreement, all assets transferred, or to be transferred, to Mobileye have been, or shall be, as the case may be, transferred “AS IS, WHERE IS” and Mobileye shall bear the economic and legal risk that any conveyance shall prove to be insufficient to vest in Mobileye good and marketable title, free and clear of any lien, claim, equity or other encumbrance.

 

(b)       Mobileye does not, in this Agreement or any other agreement, instrument or document contemplated by this Agreement, make any representation as to, warranty of or covenant with respect to:

 

(i)            the value of any asset or thing of value transferred, or to be transferred, to Intel;

 

(ii)            the freedom from encumbrance of any asset or thing of value transferred, or to be transferred, to Intel; provided, however, that Mobileye agrees to notify Intel promptly in the event Mobileye receives any notice or claim of any encumbrance on or against any asset or thing of value transferred, or to be transferred, to Intel;

 

(iii)            the absence of defenses or freedom from counterclaims with respect to any claim transferred, or to be transferred, to Intel; provided, however, that neither Mobileye nor its Subsidiaries have any counterclaims with respect to any claim transferred, or to be transferred, to Intel; or

 

(iv)            the legal sufficiency of any assignment, document or instrument delivered hereunder to convey title to any asset or thing of value upon its execution, delivery and filing.

 

Except as may expressly be set forth herein or in any Inter-Company Agreement, all assets transferred, or to be transferred, to Intel have been, or shall be, as the case may be, transferred “AS IS, WHERE IS” and Intel shall bear the economic and legal risk that any conveyance shall prove to be insufficient to vest in Intel good and marketable title, free and clear of any lien, claim, equity or other encumbrance.

 

 

(c)               Representations and Warranties. Intel hereby represents and warrants to Mobileye as of [the date hereof]/[the date of the Contribution and Subscription Agreement, by and between Intel Overseas Funding Corporation, a Delaware corporation and wholly owned Subsidiary of Intel, and Mobileye], as follows:

 

(i)            Cyclops Holdings Corporation, a Delaware corporation (“Cyclops”), (A) is a corporation duly organized, validly existing and in good standing pursuant to the Delaware General Corporation Law; and (B) has the requisite corporate power and authority to conduct its business as it is presently being conducted. Cyclops has been formed solely for the purpose of being a holding company and Cyclops has no employees and has not engaged in any other business activities. Cyclops has not incurred any material liabilities or obligations, except as set forth on Schedule II.

 

(ii)            Intel has made available to Mobileye true, correct and complete copies of the articles of incorporation, bylaws and other similar organizational documents of Cyclops, as amended to date. Cyclops is not in violation of its articles of incorporation, bylaws or other similar organizational document. The articles of incorporation, bylaws or other similar organizational document of Cyclops are in full force and effect on the date of this Agreement.

 

Section 3.14        Guarantees. Each Party agrees that it will not renew or extend any lease, contract or agreement guaranteed by the other Party without the consent of the guaranteeing Party.

 

Section 3.15        Minimum Cash Requirement. Intel shall ensure that immediately after completion of the IPO and on a pro forma basis after all expenses of such transaction have been paid in accordance with Section 3.9 (and after giving effect to any repayment of any indebtedness by Mobileye and its Subsidiaries to Intel and its other Affiliates and any other transactions contemplated to occur substantially concurrently with the IPO), Mobileye shall have $[●] in cash, cash equivalents or marketable securities.

 

Section 3.16        Notifiable Transactions. Without prejudice to Section 2.4, Intel agrees to use commercially reasonable efforts to provide three (3) months’ advance notice to the board of directors of Mobileye in the event that Intel intends to pursue a transaction (a “Notifiable Transaction”) which is reasonably expected to cause Intel Group’s Ownership Percentage to fall below fifty percent (50%), it being understood that Intel may provide such notice at a preliminary stage when it is considering pursuing such a transaction, but no such transaction is imminent or probable at such time. Notwithstanding the foregoing, Intel shall, in its sole and absolute discretion, determine whether to proceed with all or part of a Notifiable Transaction, the date of the consummation of such Notifiable Transaction and all terms of such Notifiable Transaction, including, without limitation, the form, structure and terms of any transaction(s) and/or offering(s) to effect such Notifiable Transaction and the timing of and conditions to the consummation of such Notifiable Transaction. In addition, Intel may at any time and from time to time until the Notifiable Transaction Date, modify or change the terms of such Notifiable Transaction, including, without limitation, by accelerating or delaying the timing of the consummation of all or part of such Notifiable Transaction. No such notice shall be required, and no such transaction shall be deemed to be a Notifiable Transaction, with respect to the consideration by Intel of a potential sale of a business transaction involving Mobileye (whether by merger, share sale, asset sale or similar transaction).

 

Section 3.17        Transition to a Classified Board. Following the Threshold Date (as defined in Mobileye’s Amended and Restated Certificate of Incorporation (as may be amended and/or restated from time to time, the “Mobileye Charter”), Intel will reasonably cooperate with Mobileye in effecting a transition to a classified board of directors in preparation for the Classified Annual Meeting (as defined in the Mobileye Charter) in accordance with the Mobileye Charter and with Mobileye’s bylaws as in effect at such time.

 

 

Article IV
REGISTRATION RIGHTS

 

Section 4.1            Demand Registration.

 

(a)               The Holders shall have the right after the date that is 180 days after the IPO Date (or such earlier date (i) as would permit Mobileye to cause any filings required hereunder to be filed on the 180th day after the date hereof and (ii) as is permitted by waiver under the Underwriting Agreement) to request in writing (a “Request”) that Mobileye register such portion of such Holders’ Registrable Securities as shall be specified in the Request on Form S-1 or any similar long-form Registration Statement (a “Long-Form Registration”) or (y) on Form S-3 or any similar short-form Registration Statement, which shall include a prospectus supplement to an existing Form S-3 (a “Short-Form Registration”) at such time that Mobileye qualifies to use such short form Registration Statement (any such requested Long-Form Registration or Short-Form Registration, a “Demand Registration” and the Holder submitting such Demand Registration, the “Initiating Holder”) by filing with the Commission, as soon as practicable thereafter, but not later than the 30th day (or the 45th day in case of a Long-Form Registration) after the receipt of such a Request by Mobileye, a registration statement (a “Demand Registration Statement”) covering such Registrable Securities. A request shall specify (i) the aggregate number of such Initiating Holders’ Registrable Securities requested to be registered in such Demand Registration, (ii) the intended method of disposition in connection with such Demand Registration, to the extent then known, and (iii) the identity of the Initiating Holder. Mobileye shall (i) within 10 days of the receipt of such request, give written notice of such Demand Registration (the “Company Notice”) to all Holders other than the relevant Initiating Holder (the “Eligible Holders”) and to any other Person who holds shares of Mobileye Capital Stock entitled to be included therein pursuant to a contractual obligation (such other Persons, the “Other Holders”), (ii) use its commercially reasonable efforts to file a Registration Statement in respect of such Demand Registration within 30 days of receipt of the request in case of a Short-Form Registration and within 45 days of receipt of the request in case of a Long-Form Registration, and (iii) use its commercially reasonable efforts to cause such Demand Registration Statement to become effective as soon as reasonably practicable thereafter. Mobileye shall include in such Registration all Registrable Securities that the Initiating Holder, the Eligible Holders and the Other Holders request to be included within the 10 Business Days following their receipt of the Company Notice.

 

(b)               Mobileye shall not be obligated to effect more than (i) two (2) Long-Form Registrations in any calendar year, (ii) from and after the time Mobileye becomes eligible for a Short- Form Registration, the Holders shall be entitled to effect three (3) Short- Form Registrations per calendar year in the aggregate and not any Long-Form Registrations. For purposes of the preceding sentence, a Demand Registration shall be deemed to have occurred if the Demand Registration Statement relating thereto (i) has become effective under the Securities Act and (ii) has remained effective for a period of at least 180 calendar days (or such shorter period in which all Registrable Securities of the participating Holders included in such registration have actually been sold thereunder or withdrawn) or, if such Demand Registration Statement relates to an Underwritten Offering (as defined below), such longer period as, in the opinion of counsel for the underwriter(s), a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer (the applicable period, the “Demand Period”) and(iii) at least seventy-five percent (75%) of the Registrable Securities that the Initial Holder and the Eligible Holders sought to be included in such Demand Registration are included. No request for a Demand Registration may be made by the Holders to the extent that a Shelf Registration Statement (as defined below) has been effected pursuant to the provisions of Section 4.2 and remains effective as of the date of the Request, registers the Registrable Securities subject to such Request and permits the intended method of disposition of such Registrable Security as set forth in such Request; provided that any such Request may instead be effected as an Underwritten Shelf Takedown Request.

 

 

(c)               Mobileye may not include in a Demand Registration pursuant to Section 4.1 hereof shares of Mobileye Capital Stock for the account of Mobileye or any Subsidiary of Mobileye. If the Underwriters’ Representative of a proposed Underwritten Offering described in this Section 4.1 shall have informed Mobileye (or, in the case of a Demand Registration not being underwritten, the board of directors of Mobileye determines in its reasonable discretion) that, in its view, the number of Registrable Securities requested to be included in such registration (including any securities that the Other Holders propose to be included that are not Registrable Securities) exceeds the largest number of shares that can be sold without being likely to have an adverse effect on the price, timing or distribution of the shares offered in such offering (the “Maximum Offering Size”), then Mobileye shall include in such Demand Registration: (i) first, all Registrable Securities requested to be included in such registration by the Initiating Holder and the Eligible Holders, and (ii) thereafter, and only if all the securities referred to in clause (i) have been included, any securities proposed to be registered for the account of any Other Holders with such priorities among them as Mobileye shall determine.

 

(d)               No Holder may participate in any Underwritten Offering under Section 4.1 hereof and no other Person shall be permitted to participate in any such offering pursuant to Section 4.1 hereof unless it completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements and other customary documents required under the customary terms of such underwriting arrangements. In connection with any Underwritten Offering under Section 4.1 hereof, each participating Holder, Mobileye and, each other Person desiring to participate in such Underwritten Offering shall be a party to the underwriting agreement with the underwriters and may be required to make certain customary representations and warranties with respect to their ownership of Registrable Securities being included in such Underwritten Offering and provide certain customary indemnifications for the benefits of the underwriters with respect to the information they have provided for inclusion in the Registration Statement; provided that the Holders and such Persons shall not be required to make representations and warranties with respect to Mobileye or its business and operations and shall not be required to agree to any indemnity or contribution provisions less favorable to them than as are set forth herein.

 

Section 4.2            Shelf Registration.

 

(a)               If, at any time beginning one hundred eighty (180) days after the IPO Date, Mobileye shall have received a request by the Holders (a “Shelf Offering Request”), for the filing of a registration statement on Form S-3 or a prospectus supplement to an existing shelf registration statement (as applicable, the “Shelf Registration Statement”) for the registration and resale under Rule 415 of the Securities Act pursuant to this Section 4.2, and at such time Mobileye is eligible to file a registration statement on Form S-3, Mobileye shall, within sixty (60) days of such Shelf Offering Request, file with the Commission a Shelf Registration Statement relating to the offer and sale of all Registrable Securities by the Holders from time to time in accordance with the methods of distribution elected by the Holders and set forth in the Shelf Registration Statement and, as promptly as practicable thereafter, Mobileye shall use its commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective under the Securities Act (or if Mobileye qualifies to do so, it shall file an automatic Shelf Registration Statement in response to any such request).

 

 

(b)               Mobileye shall use its commercially reasonable efforts to keep such Shelf Registration Statement continuously effective under the Securities Act (including, if necessary, by renewing or refiling a Shelf Registration Statement prior to expiration of the existing Shelf Registration Statement or by filing with the Commission a post-effective amendment or a supplement to the Shelf Registration Statement or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Shelf Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by Mobileye for such Shelf Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws, or any rules and regulations thereunder) in order to permit the prospectus forming a part thereof to be usable by the Holders until the earlier of (i) the date as of which all Registrable Securities have been sold pursuant to the Shelf Registration Statement or another Registration Statement filed under the Securities Act (but in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder) and (ii) the date as of which each of the Holders is permitted to sell its Registrable Securities without registration pursuant to Rule 144 under the Securities Act without volume limitation or other restrictions on transfer thereunder (such period of effectiveness, the “Shelf Period”). Subject to Section 4.5, Mobileye shall not be deemed to have used its commercially reasonable efforts to keep the Shelf Registration Statement effective during the Shelf Period if Mobileye voluntarily takes any action or omits to take any action that would result in Holders of Registrable Securities covered thereby not being able to offer and sell any Registrable Securities pursuant to such Shelf Registration Statement during the Shelf Period, unless such action or omission is required by applicable law or is in connection with a Shelf Suspension (as defined below).

 

(c)               For any offering of Registrable Securities pursuant to the Shelf Registration Statement for which the value of Registrable Securities proposed to be offered is at least fifty million dollars ($50,000,000), if a Holder so elects, such offering shall be in the form of an Underwritten Offering, and Mobileye shall amend or supplement the Shelf Registration Statement for such purpose. Subject to the immediately preceding sentence, if at any time during which the Shelf Registration Statement is in effect a Holder elects to offer Registrable Securities pursuant to the Shelf Registration Statement in the form of an Underwritten Offering, then such Holder shall give written notice (which notice may be given by email) to Mobileye of such intention at least two (2) Business Days prior to the date on which such Underwritten Offering is anticipated to launch, specifying the number of Registrable Securities for which the Holder is requesting registration under this Section 4.2(c) and the other material terms of such Underwritten Offering to the extent known (such request, an “Underwritten Shelf Takedown Request,” and any Underwritten Offering conducted pursuant thereto, an “Underwritten Shelf Takedown”), and Mobileye shall promptly, but in no event later than the Business Day following the receipt of such Underwritten Shelf Takedown Request, give written notice (which notice may be given by email to the email address for each Other Holder on file from time to time) of such Underwritten Shelf Takedown Request (such notice, an “Underwritten Shelf Takedown Notice”) to the Other Holders and such Underwritten Shelf Takedown Notice shall offer the Other Holders the opportunity to register as part of such Underwritten Shelf Takedown such number of Registrable Securities as each such Other Holder may request in writing (which request may be made by email to Mobileye). Subject to Section 4.5, Mobileye and the Holders making the Underwritten Shelf Takedown Request shall cause the underwriter(s) to include as part of the Underwritten Shelf Takedown all Registrable Securities that are requested to be included therein by any of the Other Holders within twenty-four (24) hours after the receipt by such Other Holders of any such notice, all to the extent necessary to permit the disposition of the Registrable Securities to be so sold; provided that all such Other Holders requesting to participate in the Underwritten Shelf Takedown must sell their Registrable Securities to the underwriters selected on the same terms and conditions as apply to the Holders; provided, further, that, if at any time after making an Underwritten Shelf Takedown Request and prior to the launch of the Underwritten Shelf Takedown, the Holders shall determine for any reason not to proceed with or to delay such Underwritten Shelf Takedown, the Holders shall give written notice to Mobileye of such determination and Mobileye shall give written notice of the same to each Other Holder and, thereupon, (A) in the case of a determination not to proceed, Mobileye and the Holders shall be relieved of their respective obligations to cause the underwriter(s) to include any Registrable Securities of the Other Holders as part of such Underwritten Shelf Takedown (but Mobileye shall not be relieved from its obligation to pay the Registration Expenses in connection therewith), without prejudice, however, to the other registration rights contained herein, and (B) in the case of a determination to delay such Underwritten Shelf Takedown, Mobileye and such Holders shall be relieved of their respective obligations to cause the underwriter(s) to include any Registrable Securities of the Other Holders as part of such Underwritten Shelf Takedown for the same period as the Holders determine to delay such Underwritten Shelf Takedown. The Holders shall be entitled to effect three (3) Underwritten Shelf Takedowns per calendar year and each such Underwritten Shelf Takedown will be deemed to be a Demand Registration for purposes of the limit on Short-Form Registrations described above in Section 4.1(b).

 

 

(d)               If the managing underwriter(s) of an Underwritten Shelf Takedown advises Mobileye or the Holders requesting the Underwritten Shelf Takedown that, in the view of such managing underwriter(s), the number of shares of Class A common stock that the Holders and such Other Holders intend to include in such registration exceeds the Maximum Offering Size, Mobileye and the Holders making the Underwritten Shelf Takedown Request shall cause the underwriter(s) to include in such Underwritten Shelf Takedown, in the following priority, up to the Maximum Offering Size: (i) first, to the Holders, and (ii) thereafter, and only if all of the securities referred to in clause (i) have been included, any securities proposed to be registered for the account of Mobileye and any Other Holders with such priorities among them as the Holders requesting the Underwritten Shelf Takedown shall determine.

 

Section 4.3            Piggyback Registration.

 

(a)               In the event that Mobileye at any time after the IPO Date proposes to (i) register any of its equity securities or securities convertible into or exchangeable for its equity securities (collectively, “Other Securities”) under the Securities Act, either in connection with a primary offering for cash for the account of Mobileye, a secondary offering or a combined primary and secondary offering, or (ii) effect an Underwritten Offering of its own securities pursuant to an effective Shelf Registration Statement (other than an Underwritten Offering pursuant to Section 4.1 or Section 4.2) (each, a “Piggyback Registration”), whether for its own account or for the account of others, Mobileye will give written notice (a “Company Piggyback Notice”) to all Holders of Registrable Securities at least ten (10) Business Days prior to the initial filing of a registration statement with the Commission pertaining thereto, informing such Holders of its intent to file such registration statement and the proposed date of filing of such registration statement, the Holders’ right to request the registration of the Registrable Securities held by the Holders, the proposed means of distribution and the proposed managing underwriter or underwriters (if any and if known). Upon the written request of the Holders made within seven (7) Business Days after any such Company Piggyback Notice is given (which request shall specify the Registrable Securities intended to be disposed of by such Holder, Mobileye will use its commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities which Mobileye has been so requested to register by the Holders to the extent required to permit the disposition (in accordance with the intended methods of distribution thereof or, in the case of a registration which is intended to effect a primary offering for cash for the account of Mobileye, in accordance with Mobileye’s intended method of distribution) of the Registrable Securities so requested to be registered, including, if necessary, by filing with the Commission a post-effective amendment or a supplement to the registration statement filed by Mobileye or the related prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the registration statement filed by Mobileye, if required by the rules, regulations or instructions applicable to the registration form used by Mobileye for such registration statement or by the Securities Act, any state securities or blue sky laws, or any rules and regulations thereunder; provided, however, that if, at any time after giving written notice of its intention to register any Other Securities and prior to the Effective Date of the registration statement filed in connection with such registration, Mobileye shall determine for any reason not to register or to delay such registration of the Other Securities, Mobileye shall give written notice of such determination to each Holder of Registrable Securities and, thereupon, (i) in the case of a determination not to register, Mobileye shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses incurred in connection therewith or from Mobileye’s obligations with respect to any subsequent registration) and (ii) in the case of a determination to delay such registration, Mobileye shall be permitted to delay registration of any Registrable Securities requested to be included in such registration statement for the same period as the delay in registering such Other Securities.

 

(b)               If, in connection with a registration statement pursuant to this Section 4.3, the Underwriters’ Representative of the offering registered thereon shall inform Mobileye in writing that in its opinion there is a Maximum Offering Size and if such registration statement relates to an offering initiated by Mobileye or Other Holders of Common Stock being offered for the account of Mobileye or of Other Holders, Mobileye shall include in such registration: (i) first, the number of shares Mobileye or the applicable Other Holders propose to offer in connection with such registration statement, (ii) second, and only if all of the securities referred to in clause (i) have been included, all Registrable Securities requested to be included in such registration by any Holders, and (iii) third, and only if all of the securities referred to in clauses (i) and (ii) have been included, any additional securities proposed to be registered for the account of any Other Holders other than those holders referred to in clause (i) with such priorities among them as Mobileye shall determine. In the event that such Underwriters’ Representative advises that less than all of such Requested Securities may be included in such offering, the Holders of Registrable Securities may withdraw their request for registration of their Registrable Securities under this Section 4.3 and not less than 90 days subsequent to the Effective Date of the registration statement for the registration of such Other Securities request that such registration be effected as a registration under Section 4.1 or Section 4.2 to the extent permitted thereunder.

 

 

(c)               No Holder may participate in any Underwritten Offering under this Section 4.3 and no other Person shall be permitted to participate in any such offering pursuant to this Section 4.3 unless it completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements and other customary documents required under the customary terms of such underwriting arrangements. In connection with any Underwritten Offering under this Section 4.3, each participating Holder and Mobileye and each such other Person desiring to participate in such Underwritten Offering shall be a party to the underwriting agreement with the underwriters of such offering and may be required to make certain customary representations and warranties with respect to their ownership of Registrable Securities being included in such Underwritten Offering and provide certain customary indemnifications for the benefits of the underwriters with respect to the information they have provided for inclusion in the Registration Statement; provided that the Holders and such other Persons shall not be required to make representations and warranties with respect to Mobileye or their business and operations and shall not be required to agree to any indemnity or contribution provisions less favorable to them than as are set forth herein.

 

(d)               Mobileye shall not be required to effect any registration of Registrable Securities under this Section 4.3 incidental to (i) the registration of any of its securities on a Registration Statement on Form S-4 or Form S-8 or any successor form to such forms, (ii) a registration of Mobileye Capital Stock solely relating to an offering and sale to employees or directors of Mobileye pursuant to any employee share plan or other employee benefit plan arrangement, or (iii) a registration in connection with a direct or indirect acquisition by Mobileye or one of its Subsidiaries of another Person or a similar business combination transaction, however structured.

 

(e)               The registration rights granted pursuant to the provisions of this Section 4.3 shall be in addition to the registration rights granted pursuant to Section 4.1 and Section 4.2. No registration of Registrable Securities effected under this Section 4.3 shall relieve Mobileye of its obligation to effect registrations of Registrable Securities pursuant to Section 4.1 or Section 4.2.

 

Section 4.4            Expenses. Except as provided herein, Mobileye shall pay all Registration Expenses in connection with all registrations of Registrable Securities. Notwithstanding the foregoing, each Holder of Registrable Securities and Mobileye shall be responsible for its own internal administrative, its own legal costs and similar costs, which shall not constitute Registration Expenses.

 

Section 4.5            Blackout Period. Mobileye shall be entitled to elect that a registration statement not be usable, or that the filing or effectiveness thereof be delayed beyond the time otherwise required, for a reasonable period of time not to exceed sixty (60) days in succession or ninety (90) days in the aggregate in any twelve (12) month period (a “Blackout Period”), if the board of directors of Mobileye reasonably determines in good faith that it is required to disclose in the registration statement a financing, acquisition, corporate reorganization or other similar transaction or other material event or circumstance affecting Mobileye or its securities, and that the disclosure of such information at such time would be detrimental to Mobileye or the holders of its equity interests, and Mobileye promptly gives the Holders of Registrable Securities written notice of such determination, and promptly gives the Holders of Registrable Securities written notice at the conclusion of such Blackout Period. For the avoidance of doubt, the Parties agree that an election by Mobileye that a registration statement for the registration and distribution of Registrable Securities shall not be usable, or shall be delayed, during a Blackout Period shall not act to reduce the period during which such registration statement shall remain effective pursuant to the terms of this Article IV.

 

 

Section 4.6            Obligations of Mobileye. In connection with any registration pursuant to Section 4.1, Section 4.2 or Section 4.3, subject to the provisions of such Sections:

 

(a)               Prior to filing a Registration Statement covering Registrable Securities or prospectus or any amendment or supplement thereto, Mobileye shall furnish to each Holder and each underwriter, if any, of the Registrable Securities covered by such Registration Statement copies of such Registration Statement as proposed to be filed, and thereafter Mobileye shall furnish to such Holder and underwriter, if any, without charge such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act and such other documents as such Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder. Each Holder shall have the right to request that Mobileye modify any information contained in such Registration Statement, amendment and supplement thereto pertaining to such Holder and Mobileye shall use all reasonable efforts to comply with such request; provided that Mobileye shall not have any obligation to so modify any information if Mobileye reasonably expects that so doing would cause the prospectus to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.

 

(b)               In connection with any filing of any Registration Statement or prospectus or amendment or supplement thereto, Mobileye shall cause such document (i) to comply in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission thereunder and (ii) with respect to information supplied by or on behalf of Mobileye for inclusion in the Registration Statement, to not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.

 

(c)               Mobileye shall promptly notify each Holder of such Registrable Securities and the underwriter(s) and, if requested by such Holder or the underwriter(s), confirm in writing, when a Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective.

 

(d)               Mobileye shall furnish counsel for each underwriter, if any, and for the Holders of such Registrable Securities with copies of any written comments from the Commission or any state securities authority or any written request by the Commission or any state securities authority for amendments or supplements to a Registration Statement or prospectus or for additional information generally.

 

(e)               After the filing of the Registration Statement, Mobileye shall (i) cause the related prospectus to be supplemented by any required prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act, (ii) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders set forth in such Registration Statement or supplement to such prospectus and (iii) promptly notify each Holder holding Registrable Securities covered by such Registration Statement of any stop order issued or threatened by the SEC or any state securities commission and use reasonable best efforts to prevent the entry of such stop order or to remove it if entered.

 

  

(f)                Mobileye shall use commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by such Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as any Holder holding such Registrable Securities reasonably (in light of such Holder’s intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of Mobileye and do any and all other acts and things that may be reasonably necessary or advisable to enable such Holder to consummate the disposition of the Registrable Securities owned by such Holder; provided that Mobileye shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4.6(f), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.

 

(g)               Mobileye shall use reasonable best efforts to list such Registrable Securities on the principal securities exchange on which Mobileye’s Class A common stock is then listed and provide a transfer agent, registrar and CUSIP number for all such Registrable Securities not later than the effective date of such Registration Statement.

 

(h)               Mobileye shall use commercially reasonable efforts to cooperate with each Holder and the underwriter(s) or managing underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as each Holder or the underwriter(s) or managing underwriter(s), if any, may reasonably request at least two (2) Business Days prior to any sale of Registrable Securities.

 

(i)                 Mobileye shall immediately notify each Holder holding such Registrable Securities covered by such Registration Statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly prepare and make available to each such Holder and file with the SEC any such supplement or amendment subject to any suspension rights contained herein.

 

(j)                 (1) The requesting Holder(s) shall have the right to select an underwriter(s) in connection with any Underwritten Offering resulting from the exercise of a Demand Registration or Underwritten Shelf Takedown reasonably acceptable to Mobileye and (2) Mobileye shall have the right to select underwriter(s) in connection with any other underwritten Public Offering. In connection with any Public Offering, Mobileye shall enter into customary agreements (including an underwriting agreement in customary form) and take all other actions as are reasonably required and customary in order to expedite or facilitate the disposition of such Registrable Securities in any such Public Offering, including the engagement of a “qualified independent underwriter” in connection with the qualification of the underwriting arrangements with FINRA.

 

  

(k)               Upon execution of confidentiality agreements in form and substance reasonably satisfactory to Mobileye, Mobileye shall make available during regular business hours for inspection by any Holder or underwriter participating in any disposition pursuant to a Registration Statement being filed by Mobileye pursuant to this Section 4.6 and any attorney, accountant or other professional retained by any the Holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of Mobileye (collectively, the “Records”) as shall be reasonably necessary or desirable to enable them to exercise their due diligence responsibility, and cause Mobileye’s officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such Registration Statement (including by participation in a reasonable number of diligence calls). Records that Mobileye determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the release of such Records is required pursuant to applicable law or regulation or judicial process. Each Person agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it or its Affiliates as the basis for any market transactions in the Mobileye Capital Stock unless and until such information is made generally available to the public. Each Person further agrees that, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, it shall give notice to Mobileye and allow Mobileye, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.

 

(l)                 Mobileye shall furnish to each Holder and to each such underwriter, broker or sales agent if any, or any other financial institution facilitating such distribution of securities, a signed counterpart, addressed to such Holder, underwriter or such other financial institution, as applicable, of (i) an opinion or opinions of counsel to Mobileye and (ii) a comfort letter or comfort letters from Mobileye’s independent certified public accountants, each in customary form and covering such matters of the kind customarily covered by opinions or comfort letters, as the case may be, as the managing underwriter(s), broker, sales agent or other financial institution facilitating such distribution of securities therefor reasonably request.

 

(m)             Mobileye shall take all commercially reasonable actions to ensure that any free-writing prospectus utilized in connection with any Demand Registration, Underwritten Shelf Takedown or other offering off of a Shelf Registration Statement or Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

(n)               Mobileye shall otherwise use all commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement or such other document that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.

 

(o)               Mobileye may require each Holder promptly to furnish in writing to Mobileye such information regarding the distribution of the Registrable Securities as Mobileye may from time to time reasonably request and such other information as may be legally required or Mobileye may deem reasonably advisable in connection with such registration; provided that, prior to excluding such Holder on the basis of its failure to provide such information, Mobileye must furnish in writing a reminder to such Holder requesting such information at least three (3) days prior to filing the applicable Registration Statement.

 

  

(p)               Each Holder agrees that, upon receipt of any notice from Mobileye of the happening of any event of the kind described in Section 4.6(i), such Holder shall forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 4.6(i), and, if so directed by Mobileye, such Holder shall deliver to Mobileye all copies, other than any permanent file copies then in such Holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. If Mobileye shall give such notice, Mobileye shall extend the period during which such Registration Statement shall be maintained effective by the number of days during the period from and including the date of the giving of notice pursuant to Section 4.6(i) to the date when Mobileye shall make available to such Holder a prospectus supplemented or amended to conform with the requirements of Section 4.6(i).

 

(q)               Each Holder agrees that, in connection with any offering pursuant to this Section 4, it will not prepare or use or refer to, any “free writing prospectus” (as defined in Rule 405 of the Securities Act) without the prior written authorization of Mobileye, and will not distribute any written materials in connection with the offer or sale of the Registrable Securities pursuant to any registration statement hereunder other than the prospectus and any such free writing prospectus so authorized.

 

(r)                Mobileye shall use its commercially reasonable efforts to list all Registrable Securities covered by such Registration Statement on any securities exchange or quotation system on which its Class A common stock is then listed or traded.

 

(s)                Mobileye shall have appropriate officers of Mobileye (i) prepare and make presentations at any “road shows” or other investor presentations and before analysts and rating agencies, as the case may be, in any Underwritten Offering, (ii) otherwise use their commercially reasonable efforts to cooperate as reasonably requested by the underwriters in the offering, marketing or selling of the Registrable Securities, including, by executing customary underwriting agreements and (iii) otherwise use their commercially reasonable efforts to cooperate as reasonably requested by the Holders in the marketing of the Registrable Securities.

 

(t)                 Notwithstanding anything to the contrary in this Article IV, Mobileye shall not have any obligation to participate in any due diligence, execute any agreements or certificates or deliver legal opinions or obtain comfort letters in connection with any sales or offers of Mobileye securities other than in connection with an Underwritten Offering.

 

  

Section 4.7            Indemnification and Contribution.

 

(a)               In the case of each offering of Registrable Securities made pursuant to this Article IV, Mobileye agrees to indemnify and hold harmless, to the extent permitted by law, each Holder of Registrable Securities included in such registration (each, a “Selling Holder”), each underwriter of Registrable Securities so offered and each Person, if any, who controls any of the foregoing Persons within the meaning of the Securities Act and the officers, directors, affiliates, employees and agents of each of the foregoing, against any and all losses, liabilities, costs (including reasonable attorney’s fees and disbursements), claims and damages, joint or several, to which they or any of them may become subject, under the Securities Act or otherwise, including any amount paid in settlement of any litigation commenced or threatened, insofar as such losses, liabilities, costs, claims and damages (or actions or proceedings in respect thereof, whether or not such indemnified Person is a party thereto) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or prospectus relating to the Registrable Securities (as amended or supplemented if Mobileye shall have furnished any amendments or supplements thereto), any preliminary prospectus or any “issuer free writing prospectus” (as defined in Rule 433 of the Securities Act) or (ii) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that Mobileye shall not be liable to any Person in any such case to the extent that any such loss, liability, cost, claim or damage arises out of or relates to any untrue statement or alleged untrue statement, or any omission or alleged omission, except insofar as the same shall have been made in reliance upon and in conformity with information furnished to Mobileye in writing by or on behalf of such Selling Holder expressly for use therein or by such Selling Holder’s failure to deliver a copy of the prospectus, the issuer free writing prospectus or any amendments or supplements thereto after Mobileye has furnished such Selling Holder with a sufficient number of copies of the same.

 

(b)               In the case of each offering made pursuant to this Agreement, each Selling Holder, by exercising its registration rights hereunder, agrees to indemnify and hold harmless, Mobileye and its officers, directors, affiliates, employees and agents and each Person, if any, who controls Mobileye within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity from Mobileye contained in Section 4.7(a) to such Selling Holder, but only with respect to information furnished in writing by such Selling Holder or on such Selling Holder’s behalf expressly for use in any Registration Statement or prospectus relating to the Registrable Securities, or any amendment or supplement thereto, any preliminary prospectus or any “issuer free writing prospectus.” Each such Selling Holder also agrees to indemnify and hold harmless any underwriters of the Registrable Securities, their officers and directors and each Person who controls such underwriters within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act on substantially the same basis as that of the indemnification of Mobileye provided in this Section 4.7(b). As a condition to including Registrable Securities in any Registration Statement filed in accordance herewith, Mobileye may require that it shall have received an undertaking reasonably satisfactory to it from any underwriter to indemnify and hold it harmless to the extent customarily provided by underwriters with respect to similar securities.

 

  

(c)               Each party indemnified under paragraph (a) or (b) above shall, promptly after receipt of notice of a claim or action against such indemnified party in respect of which indemnity may be sought hereunder, promptly notify the indemnifying party in writing of the claim or action; provided that the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party on account of the indemnity agreement contained in paragraph (a) or (b) above except to the extent that the indemnifying party was actually prejudiced by such failure, and in no event shall such failure relieve the indemnifying party from any other liability that it may have to such indemnified party. If any such claim or action shall be brought against an indemnified party, and it shall have notified the indemnifying party thereof, unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified party and indemnifying parties may exist in respect of such claim, the indemnifying party shall be entitled to participate therein, and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 4.7 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Any indemnifying party against whom indemnity may be sought under this Section 4.7 shall not be liable to indemnify an indemnified party if such indemnified party settles such claim or action without the consent of the indemnifying party. The indemnifying party may not agree to any settlement of any such claim or action, other than solely for monetary damages for which the indemnifying party shall be responsible hereunder, the result of which any remedy or relief shall be applied to or against the indemnified party, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld. In any action hereunder as to which the indemnifying party has assumed the defense thereof with counsel satisfactory to the indemnified party, the indemnified party shall continue to be entitled to participate in the defense thereof, with counsel of its own choice, but the indemnifying party shall not be obligated hereunder to reimburse the indemnified party for the costs thereof.

 

(d)               If the indemnification provided for in this Section 4.7 shall for any reason be unavailable (other than in accordance with its terms) to an indemnified party in respect of any loss, liability, cost, claim or damage referred to therein, then each 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 loss, liability, cost, claim or damage (i) as between Mobileye and the Selling Holders on the one hand and the underwriters on the other, in such proportion as shall be appropriate to reflect the relative benefits received by Mobileye and the Selling Holders on the one hand and the underwriters on the other hand or, if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits but also the relative fault of Mobileye and the Selling Holders on the one hand and the underwriters on the other with respect to the statements or omissions which resulted in such loss, liability, cost, claim or damage as well as any other relevant equitable considerations and (ii) as between Mobileye on the one hand and each Selling Holder on the other, in such proportion as is appropriate to reflect the relative fault of Mobileye and of each Selling Holder in connection with such statements or omissions as well as any other relevant equitable considerations. The relative benefits received by Mobileye and the Selling Holders on the one hand and the underwriters on the other shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by Mobileye and the Selling Holders bear to the total underwriting discounts and commissions received by the underwriters, in each case as set forth in the table on the cover page of the prospectus. The relative fault of Mobileye and the Selling Holders on the one hand and of the underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by Mobileye and the Selling Holders or by the underwriters. The relative fault of Mobileye on the one hand and of each Selling Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, but not by reference to any indemnified party’s stock ownership in Mobileye. The amount paid or payable by an indemnified party as a result of the loss, cost, claim, damage or liability, or action in respect thereof, referred to above in this paragraph (d) shall be deemed to include, for purposes of this paragraph (d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Mobileye and the Selling Holders agree that it would not be just and equitable if contribution pursuant to this Section 4.7 were determined by pro rata allocation (even if the underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was found not liable for or not guilty of a fraudulent misrepresentation.

 

 

(e)               Notwithstanding any other provision of this Section 4.7, the obligation to indemnify or contribute shall be several, and not joint, among the Selling Holders who furnished or failed to furnish the information in a registration statement (or in any preliminary or final prospectus included therein or issuer free writing prospectus related thereto) or in any offering memorandum or other offering document relating to the offering and sale of Registrable Securities that resulted in any loss, liability, claim or damages. The liability of each such Selling Holder shall be limited to such Selling Holder’s proportionate amount of the aggregate gross proceeds received by all such Selling Holders from the sale of such Registrable Securities and shall not in any event exceed the gross proceeds received by such Selling Holder from such sale.

 

(f)                Indemnification and contribution similar to that specified in the preceding paragraphs of this Section 4.7 (with appropriate modifications) shall be given by Mobileye, the Selling Holders and any underwriters with respect to any required registration or other qualification of securities under any state or government law or regulation or governmental authority.

 

(g)               The obligations of the parties under this Section 4.7 shall be in addition to any liability which any party may otherwise have to any other party.

 

Section 4.8            Rule 144 and Form S-3. Mobileye shall use its reasonable best efforts to ensure that the conditions to the availability of Rule 144 set forth in paragraph (c) thereof shall be satisfied. Upon the request of any Holder of Registrable Securities, Mobileye will deliver to such Holder a written statement as to whether it has complied with such requirements. Mobileye further agrees to use its reasonable best efforts to cause all conditions to the availability of Form S-3 (or any successor form) under the Securities Act for the filing of registration statements under this Agreement to be met as soon as reasonably practicable after the IPO Date; provided that Mobileye shall not be required to issue any additional shares of Class A common stock solely for the purpose of meeting the minimum eligibility requirements under Form S-3.

 

Section 4.9            Holdback Agreement.

 

(a)               If so requested by the Underwriters’ Representative in connection with an offering of securities covered by a registration statement filed by Mobileye, whether or not Registrable Securities of the Holders are included therein, each Holder shall agree not to effect any sale or distribution of the Shares, including any sale under Rule 144, without the prior written consent of the Underwriters’ Representative (otherwise than through the registered public offering then being made and subject to customary exceptions), within sixty (60) days (or such lesser period as the Underwriters’ Representative may permit) after the Effective Date of the registration statement (or the pricing date in the case of a “take-down” off of an already effective Shelf Registration Statement), subject to customary exclusions agreed to by such Underwriters’ Representative; provided that Mobileye shall cause all directors and executive officers of Mobileye, and all other Persons with registration rights with respect to Mobileye’s securities (whether or not pursuant to this Agreement) to enter into substantially identical agreement for at least the same period of time (without regard to this proviso), subject to exceptions for gifts, pledges, sales pursuant to pre-existing 105-1 plans and other customary exclusions agreed to by such managing underwriter(s). The Holders shall not be subject to the restrictions set forth in this Section 4.9 for longer than an aggregate of ninety-seven (97) days during any 12-month period.

 

  

(b)               If so requested by the Underwriters’ Representative in connection with an offering of any Registrable Securities, Mobileye shall agree not to effect any sale or distribution of Mobileye Capital Stock, without the prior written consent of the Underwriters’ Representative (otherwise than through the registered public offering then being made or in connection with any acquisition or business combination transaction and other than in connection with stock options and employee benefit plans and compensation), within seven (7) days prior to or sixty (60) days (or such lesser period as the Underwriters’ Representative may permit) after the Effective Date of the registration statement (or the commencement of the offering to the public of such Registrable Securities in the case of Rule 415 Offerings) and shall use its commercially reasonable efforts to obtain and enforce similar agreements from any other Persons if requested by the Underwriters’ Representative; provided that Mobileye or such Persons shall not be subject to the restrictions set forth in this Section 4.9 for longer than an aggregate of ninety-seven (97) days during any twelve (12) month period.

 

Section 4.10         Term. This Article IV shall remain in effect until all Registrable Securities held by Holders have been transferred by them to other Persons.

 

Article V
MUTUAL RELEASES; INDEMNIFICATION

 

Section 5.1            Release of Pre-IPO Date Claims.

 

(a)               Mobileye Release. Except as provided in Section 5.1(c), as of the IPO Date, Mobileye does hereby, for itself and as agent for each member of the Mobileye Group, remise, release and forever discharge the Intel Indemnitees from any and all Liabilities whatsoever, whether at law or in equity (including any right of contribution), whether arising under any contract or agreement, by operation of law or otherwise, existing or arising from any past 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 IPO Date, including in connection with the transactions and all other activities to implement the IPO.

 

(b)               Intel Release. Except as provided in Section 5.1(c), as of the IPO Date, Intel does hereby, for itself and as agent for each member of the Intel Group, remise, release and forever discharge the Mobileye Indemnitees from any and all Liabilities whatsoever, whether at law or in equity (including any right of contribution), whether arising under any contract or agreement, by operation of law or otherwise, existing or arising from any past 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 IPO Date, including in connection with the transactions and all other activities to implement the IPO.

 

 

(c)               No Impairment. Nothing contained in Section 5.1(a) or Section 5.1(b) shall limit or otherwise affect any Party’s rights or obligations pursuant to or contemplated by this Agreement or any Inter-Company Agreement, in each case in accordance with its terms, including, without limitation, any obligations relating to indemnification, including indemnification pursuant to Section 5.2 and Section 5.3 of this Agreement, and any Insurance Proceeds under any of Intel’s Insurance Policies relating to the Mobileye Business which Mobileye is entitled to be paid.

 

(d)               No Actions as to Released Pre-IPO Date Claims. Mobileye agrees, for itself and as agent for each member of the Mobileye Group, not to make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Intel or any member of the Intel Group, or any other Person released pursuant to Section 5.1(a), with respect to any Liabilities released pursuant to Section 5.1(a). Intel agrees, for itself and as agent for each member of the Intel Group, not to make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against Mobileye or any member of the Mobileye Group, or any other Person released pursuant to Section 5.1(b), with respect to any Liabilities released pursuant to Section 5.1(b).

 

(e)               Further Instruments. At any time, at the request of any other Party, each Party shall cause each member of its respective Intel Group or Mobileye Group, as applicable, to execute and deliver releases reflecting the provisions hereof.

 

Section 5.2            Indemnification by Mobileye. Except as otherwise provided in this Agreement, Mobileye shall, for itself and as agent for each member of the Mobileye Group, indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the Intel Indemnitees from and against, and shall reimburse such Intel Indemnitees with respect to, any and all Losses that any third party seeks to impose upon the Intel Indemnitees, or which are imposed upon the Intel Indemnitees, and that relate to, arise or result from, whether prior to or following the IPO Date, any of the following items (without duplication):

 

(a)               any Mobileye Liability;

 

(b)               any breach by Mobileye or any member of the Mobileye Group of this Agreement or any of the Inter-Company Agreements; and

 

(c)               any Liabilities relating to, arising out of or resulting from 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, with respect to all information (i) contained in the IPO Registration Statement, any issuer free writing prospectus or any preliminary, final or supplemental prospectus forming a part of the IPO Registration Statement (other than information provided by Intel to Mobileye specifically for inclusion in the IPO Registration Statement, any issuer free writing prospectus or any preliminary, final or supplemental prospectus forming a part of the IPO Registration Statement), (ii) contained in any public filings made by Mobileye with the Commission following the IPO Date and (iii) provided by Mobileye to Intel specifically for inclusion in Intel’s annual or quarterly reports following the IPO Date to the extent (A) such information pertains to (x) Mobileye and the Mobileye Group or (y) the Mobileye Business or (B) Intel has provided prior written notice to Mobileye that such information will be included in one or more annual or quarterly reports, specifying how such information will be presented, and the information is included in such annual or quarterly reports; provided that this sub-clause (B) shall not apply to the extent that any such Liability arises out of or results from, or in connection with, any action or inaction of any member of the Intel Group, including as a result of any misstatement or omission of relevant material information by any member of the Intel Group to Mobileye.

 

  

In the event that any member of the Mobileye Group makes a payment to the Intel Indemnitees hereunder, and any of the Intel Indemnitees subsequently diminishes the Liability on account of which such payment was made, either directly or through a third-party recovery (other than a recovery indirectly from Intel), Intel will promptly repay (or will procure Intel Indemnitee to promptly repay) such member of the Mobileye Group the amount by which the payment made by such member of the Mobileye Group exceeds the actual cost of the associated indemnified Liability following such diminution.

 

Section 5.3            Indemnification by Intel. Except as otherwise provided in this Agreement, Intel shall, for itself and as agent for each member of the Intel Group, indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the Mobileye Indemnitees from and against, and shall reimburse such Mobileye Indemnitee with respect to, any and all Losses that any third party seeks to impose upon the Mobileye Indemnitees, or which are imposed upon the Mobileye Indemnitees, and that relate to, arise or result from, whether prior to or following the IPO Date, with any of the following items (without duplication):

 

(a)               any Liability of the Intel Group and all Liabilities arising out of the operation or conduct of the Intel Business (in each case excluding the Mobileye Liabilities);

 

(b)               any breach by Intel or any member of the Intel Group of this Agreement or any of the Inter-Company Agreements;

 

(c)               any Liabilities relating to payment of consideration to former equityholders of Mobileye N.V., a public limited liability company (naamloze vennootschap) organized under the laws of The Netherlands (“Mobileye N.V.”), under that certain Purchase Agreement, dated as of March 12, 2017 (the “Purchase Agreement”), by and among Intel, Mobileye N.V. and Cyclops, including in connection with the Compulsory Acquisition (as defined in the Purchase Agreement), and related costs; and

 

(d)               any Liabilities relating to, arising out of or resulting from 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, with respect to all information (i) contained in the IPO Registration Statement, any issuer free writing prospectus or any preliminary, final or supplemental prospectus forming a part of the IPO Registration Statement provided by Intel specifically for inclusion therein to the extent such information pertains to (x) Intel and the Intel Group or (y) the Intel Business and (ii) provided by Intel to Mobileye specifically for inclusion in Mobileye’s annual or quarterly reports following the IPO Date to the extent (A) such information pertains to (x) Intel and the Intel Group or (y) the Intel Business or (B) Mobileye has provided prior written notice to Intel that such information will be included in one or more annual or quarterly reports, specifying how such information will be presented, and the information is included in such annual or quarterly reports; provided that this sub-clause (B) shall not apply to the extent that any such Liability arises out of or results from, or in connection with, any action or inaction of any member of the Mobileye Group, including as a result of any misstatement or omission of relevant material information by any member of the Mobileye Group to Intel.

 

 

In the event that any member of the Intel Group makes a payment to the Mobileye Indemnitees hereunder, and any of the Mobileye Indemnitees subsequently diminishes the Liability on account of which such payment was made, either directly or through a third-party recovery (other than a recovery indirectly from Mobileye), Mobileye will promptly repay (or will procure a Mobileye Indemnitee to promptly repay) such member of the Intel Group the amount by which the payment made by such member of the Intel Group exceeds the actual cost of the indemnified Liability following such diminution.

 

Section 5.4            Ancillary Agreement Liabilities. Notwithstanding any other provision in this Agreement to the contrary, any Liability specifically assumed by, or allocated to, a Party in any of the Inter-Company Agreements shall be governed exclusively by the terms of such Inter-Company Agreement.

 

Section 5.5            Other Agreements Evidencing Indemnification Obligations. Intel hereby agrees to execute, for the benefit of any Mobileye Indemnitee, such documents as may be reasonably requested by such Mobileye Indemnitee, evidencing Intel’s agreement that the indemnification obligations of Intel set forth in this Agreement inure to the benefit of and are enforceable by such Mobileye Indemnitee. Mobileye hereby agrees to execute, for the benefit of any Intel Indemnitee, such documents as may be reasonably requested by such Intel Indemnitee, evidencing Mobileye’s agreement that the indemnification obligations of Mobileye set forth in this Agreement inure to the benefit of and are enforceable by such Intel Indemnitee.

 

Section 5.6            Reductions for Insurance Proceeds and other Recoveries.

 

(a)               Insurance Proceeds. The amount that any Indemnifying Party is or may be required to provide indemnification to or on behalf of any Indemnitee pursuant to Section 5.2 or Section 5.3, as applicable, shall be reduced (retroactively or prospectively) by any Insurance Proceeds or other amounts actually recovered from third parties by or on behalf of such Indemnitee in respect of the related Loss. The existence of a claim by an Indemnitee for monies from a third-party insurer or against a third party in respect of any indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained herein and otherwise determined to be due and owing by an Indemnifying Party. Rather, the Indemnifying Party shall make payment in full of the amount determined to be due and owing by it against an assignment by the Indemnitee to the Indemnifying Party of the entire claim of the Indemnitee for Insurance Proceeds or against such third party. Notwithstanding any other provisions of this Agreement, it is the intention of the Parties that no third-party insurer or any other third party shall be (i) entitled to a benefit it would not be entitled to receive in the absence of the foregoing indemnification provisions, or (ii) relieved of the responsibility to pay any claims for which it is obligated. If an Indemnitee has received the payment required by this Agreement from an Indemnifying Party in respect of any indemnifiable Loss and later receives Insurance Proceeds or other amounts in respect of such indemnifiable Loss, then such Indemnitee shall hold such Insurance Proceeds or other amounts in trust for the benefit of the Indemnifying Party (or Indemnifying Parties) and shall pay to the Indemnifying Party, as promptly as practicable after receipt, a sum equal to the amount of such Insurance Proceeds or other amounts received, up to the aggregate amount of any payments received from the Indemnifying Party pursuant to this Agreement in respect of such indemnifiable Loss (or, if there is more than one Indemnifying Party, the Indemnitee shall pay each Indemnifying Party, its proportionate share (based on payments received from the Indemnifying Parties) of such Insurance Proceeds).

 

  

(b)               Tax Cost/Tax Benefit. The amount that any Indemnifying Party is or may be required to provide indemnification to or on behalf of any Indemnitee pursuant to Section 5.2 or Section 5.3, as applicable, shall be (i) increased to take account of any net Tax cost incurred by the Indemnitee arising from the receipt or accrual of an indemnification payment hereunder (grossed up for such increase) and (ii) reduced to take account of any net Tax benefit realized by the Indemnitee arising from incurring or paying such loss or other liability. In computing the amount of any such Tax cost or Tax benefit, the Indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnification payment hereunder or incurring or paying any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to this Section 5.6(b) and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax benefit only after the Indemnitee has actually realized such cost or benefit. For purposes of this Agreement, an Indemnitee shall be deemed to have “actually realized” a net Tax cost or a net Tax benefit to the extent that, and at such time as, the amount of Taxes payable by such Indemnitee is increased above or reduced below, as the case may be, the amount of Taxes that such Indemnitee would be required to pay but for the receipt or accrual of the indemnification payment or the incurrence or payment of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any Final Determination with respect to the Indemnitee’s liability for Taxes, and payments between such indemnified parties to reflect such adjustment shall be made if necessary. Notwithstanding any other provision of this Agreement, to the extent permitted by applicable law, the Parties hereto agree that any indemnity payment made hereunder shall be treated as a capital contribution or dividend distribution, as the case may be, immediately prior to the IPO Date and, accordingly, not includible in the taxable income of the recipient or deductible by the payor.

 

Section 5.7            Procedures for Defense, Settlement and Indemnification of the Third-Party Claims.

 

(a)               Notice of Claims. If an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) who is not a member of the Intel Group or the Mobileye 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, Intel and Mobileye (as applicable) will ensure that such Indemnitee shall give such Indemnifying Party written notice thereof within thirty (30) 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 delay or failure of any Indemnitee or other Person to give notice as provided in this Section 5.7 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 delay or failure to give notice.

 

(b)               Defense by Indemnifying Party. An Indemnifying Party shall be entitled to participate in the defense of any Third-Party Claim and, to the extent that it wishes, at its cost, risk and expense, to assume the defense thereof, with counsel reasonably satisfactory to the party seeking indemnification. After timely notice from the Indemnifying Party to the Indemnitee of such election to so assume the defense thereof, the Indemnifying Party shall not be liable to the party seeking indemnification for any legal expenses of other counsel or any other expenses subsequently incurred by Indemnitee in connection with the defense thereof. The Indemnitee agrees to cooperate in all reasonable respects with the Indemnifying Party and its counsel in the defense against any Third-Party Claim. The Indemnifying Party shall be entitled to compromise or settle any Third-Party Claim as to which it is providing indemnification, which compromise or settlement shall be made only with the written consent of the Indemnitee, such consent not to be unreasonably withheld.

 

  

(c)               Defense by Indemnitee. If an Indemnifying Party fails to assume the defense of a Third-Party Claim within thirty (30) calendar days after receipt of notice of such claim, Indemnitee will, upon delivering notice to such effect to the Indemnifying Party, have the right to undertake the defense, compromise or settlement of such Third-Party Claim on behalf of and for the account of the Indemnifying Party subject to the limitations as set forth in this Section 5.7; provided, however, that such Third-Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnitee assumes the defense of any Third-Party Claim, it shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall reimburse all such costs and expenses of the Indemnitee in the event it is ultimately determined that the Indemnifying Party is obligated to indemnify the Indemnitee with respect to such Third-Party Claim. In no event shall an Indemnifying Party be liable for any settlement effected without its consent, which consent will not be unreasonably withheld.

 

Section 5.8            Additional Matters.

 

(a)               Cooperation in Defense and Settlement. With respect to any Third-Party Claim that implicates both Mobileye and Intel in a material fashion due to the allocation of Liabilities, responsibilities for management of defense and related indemnities set forth in this Agreement or any of the Inter-Company Agreements, the Parties agree to cooperate fully and maintain a joint defense (in a manner that will preserve the attorney-client privilege, joint defense or other privilege with respect thereto) so as to minimize such Liabilities and defense costs associated therewith. If, by agreement the Parties allow one Party to have the primary role of managing the defense of such Third-Party Claims, the managing Party shall, upon reasonable request, consult with the non-managing Party with respect to significant matters relating thereto and may, if necessary or helpful, associate counsel to assist in the defense of such claims.

 

(b)               Pre-IPO Date Actions. Except with respect to matters pertaining solely to, or solely in connection with, the Mobileye Business, Intel may, in its sole discretion, have exclusive authority and control over the investigation, prosecution, defense and appeal of all Actions pending at the IPO Date relating to or arising in connection with, in any manner, the Mobileye assets or the Mobileye Liabilities if Intel or a member of the Intel Group is named as a party thereto; provided, however, that Intel must obtain the written consent of Mobileye, such consent not to be unreasonably withheld, to settle or compromise or consent to the entry of judgment with respect to such Action. After any such compromise, settlement, consent to entry of judgment or entry of judgment, Intel shall reasonably and fairly allocate to Mobileye and Mobileye shall be responsible for Mobileye’s proportionate share of any such compromise, settlement, consent or judgment attributable to the Mobileye Business, the Mobileye assets or the Mobileye Liabilities, including its proportionate share of the costs and expenses associated with defending same.

 

(c)               Substitution. In the event of an Action in which the Indemnifying Party is not a named defendant, if either the Indemnitee or the Indemnifying Party shall so request, the Parties shall endeavor to substitute the Indemnifying Party for the named defendant. If such substitution or addition cannot be achieved for any reason or is not requested, the rights and obligations of the Parties regarding indemnification and the management of the defense of claims as set forth in this Article V shall not be altered.

 

 

(d)               Subrogation. In the event of payment by or on behalf of any Indemnifying Party to or on behalf of any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee, in whole or in part based upon whether the Indemnifying Party has paid all or only part of the Indemnitee’s Liability, as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim or against any other person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.

 

Section 5.9            Survival of Indemnities. Subject to Section 5.5, the rights and obligations of the members of the Intel Group and the Mobileye Group under this Article V shall survive the sale or other transfer by any Party of any assets or businesses or the assignment by it of any Liabilities or the sale by any member of the Intel Group or the Mobileye Group of the capital stock or other equity interests of any Subsidiary to any Person.

 

Article VI
OPTION

 

Section 6.1            Option.

 

(a)               Subject to the provisions of subsection (b) of this Section 6.1, Mobileye hereby grants to Intel, on the terms and conditions set forth herein, a continuing right (the “Option”) to purchase from Mobileye, at the times set forth herein, such number of shares of Class A common stock or such number of shares of Class B common stock as is necessary for Intel to maintain at least eighty and one-tenth percent (80.1%) in Ownership Percentage, in each case, as set forth in Section 6.3. The Option shall be assignable, in whole or in part and from time to time, by Intel to any member of the Intel Group.

 

(i)        The exercise price for each share of Class A common stock purchased pursuant to an exercise of the Option shall be:

 

(A)          in the event of the issuance by Mobileye of Class A common stock in exchange for cash consideration, the per share price paid to Mobileye for shares of the Class A common stock issued by Mobileye in the related Issuance Event (as defined in Section 3.10); or

 

(B)          in the event of: (1) the issuance by Mobileye of Class A common stock pursuant to any stock option or other executive or employee benefit or compensation plan maintained by Mobileye or (2) the issuance by Mobileye of Class A common stock for consideration other than cash, the Fair Market Value per share of Class A common stock on the Issuance Event Date (as defined in Section 3.10); and

 

(ii)            The exercise price for each share of Class B common stock purchased pursuant to an exercise of the Option shall be the Fair Market Value per share of Class B common stock on the Issuance Event Date.

 

  

For the purposes of this Section 3.10, “Fair Market Value” of a share of (x) Class A common stock shall mean the closing price per share of Class A common stock as quoted on the NASDAQ on the date for which a determination is being made and (y) Class B common stock shall be the fair market value per share of Class B common stock as determined in good faith by Mobileye’s board of directors.

 

(b)               The provisions of Section 6.1(a) hereof notwithstanding, the Option granted pursuant to Section 6.1(a) shall not apply and shall not be exercisable in connection with the issuance by Mobileye of any shares of Common Stock (i) in connection with the IPO, including the full exercise of all underwriters’ over-allotment options granted in connection therewith, or (ii) pursuant to any stock option or other executive or employee benefit or compensation plan maintained by Mobileye except where the issuance of such Common Stock pursuant to this clause (ii) would cause Intel Group’s Ownership Percentage to fall below eighty and one-tenth percent (80.1%).

 

Section 6.2            Notice. At least twenty (20) Business Days prior to the issuance of any shares of Common Stock (other than as provided in Section 6.1(b) and other than issuances of Common Stock to any member of the Intel Group) or the first date on which any event could occur that, in the absence of a full or partial exercise of the Option, would result in a reduction in Intel Group’s Ownership Percentage to below eighty and one-tenth percent (80.1%), Mobileye will notify Intel in writing (an “Option Notice”) of its plans to issue any such shares or the date on which such event could first occur. Each Option Notice must specify the date on which Mobileye intends to issue such additional shares of Common Stock or on which such event could first occur (such issuance or event being referred to herein as an “Issuance Event” and the date of such issuance or event as an “Issuance Event Date”), the number of shares Mobileye intends to issue or may issue and the other terms and conditions of such Issuance Event.

 

Section 6.3            Option Exercise and Payment. The Option may be exercised by Intel (or any member of the Intel Group to which all or any part of the Option has been assigned) in connection with an Issuance Event for a number of shares of Class A common stock or a number of shares of Class B common stock equal to or less than the number of shares that are necessary for the Intel Group to maintain at least eighty and one-tenth percent (80.1%) in Ownership Percentage. The Option may be exercised at any time after receipt of an applicable Option Notice and up to three (3) Business Days prior to the applicable Issuance Event Date by the delivery to Mobileye of a written notice to such effect specifying (x) the number of shares of Class A common stock and the number of shares of Class B common stock to be purchased by Intel or any member of the Intel Group and (y) a determination of the exercise price for such shares. In the event of any such exercise of the Option, Mobileye will, on the applicable Issuance Event Date and simultaneously with the issuance of shares of Common Stock in the related Issuance Event, issue to Intel (or any member of the Intel Group designated by Intel), against payment therefor, certificates or book-entries representing the shares of Class A common stock or Class B common stock being purchased upon such exercise. Payment for such shares shall be made by wire transfer or intrabank transfer of immediately available funds to such account as shall be specified by Mobileye for the full purchase price for such shares.

 

Section 6.4            Termination of Option. The Option, or any part thereof assigned to a member of the Intel Group other than Intel, shall terminate upon the earlier of (i) the Distribution Date, (ii) the first date that members of the Intel Group beneficially own shares of Common Stock representing less than eighty percent (80%) in Ownership Percentage and (iii) in the event that the Option has been transferred, on such date that the Person to whom the Option, or such part thereof, has been transferred, ceases to be a member of the Intel Group.

 

  

Article VII
MISCELLANEOUS

 

Section 7.1            Consent of Intel. Any consent of Intel pursuant to this Agreement or any of the Inter-Company Agreements shall not be effective unless it is in writing and evidenced by the signature of the General Counsel of Intel (or such other person that the General Counsel has specifically authorized in writing to give such consent).

 

Section 7.2            Limitation of Liability. IN NO EVENT SHALL ANY MEMBER OF THE INTEL GROUP OR MOBILEYE GROUP BE LIABLE TO ANY OTHER MEMBER OF THE INTEL GROUP OR MOBILEYE GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY’S INDEMNIFICATION OBLIGATIONS FOR LIABILITIES AS SET FORTH IN THIS AGREEMENT OR IN ANY INTER-COMPANY AGREEMENT.

 

Section 7.3            Entire Agreement. This Agreement, the Inter-Company Agreements and the Exhibits and Schedules referenced or attached hereto and thereto, constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof and thereof.

 

Section 7.4            Governing Law and Jurisdiction. This Agreement, including the validity hereof and the rights and obligations of the Parties hereunder, shall be construed in accordance with and shall be governed by the laws of State of Delaware applicable to contracts made and to be performed entirely in such State (without giving effect to the conflicts of laws provisions thereof).

 

Section 7.5            Termination; Amendment. This Agreement and all Inter-Company Agreements may be terminated or amended by and in the sole discretion of Intel, without the approval of Mobileye, at any time prior to the IPO. This Agreement and any applicable Inter-Company Agreements may be terminated or amended at any time after such date by mutual consent of Intel and Mobileye, evidenced by an instrument in writing signed on behalf of each of the Parties. In the event of termination pursuant to this Section 7.5, no Party shall have any liability of any kind to the other Party, except for any rights that will have accrued to the benefit of a Party prior to such termination. Except as otherwise provided herein or required by the provisions hereof, this Agreement shall terminate on the date that is five (5) years after the first date upon which the members of the Intel Group cease to own at least twenty percent (20%) of the then outstanding number of shares of Common Stock; provided, however, that the provisions of Section 3.6 of Article III shall survive for a period of seven (7) years after the termination of this Agreement and the provisions of Section 3.4 and Section 3.10 of Article III, Article V, Article VII and Article VIII shall survive indefinitely after the termination of this Agreement.

 

  

Section 7.6            Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, (b) if sent designated for overnight delivery by nationally recognized overnight air courier (such as DHL or Federal Express), upon receipt of proof of delivery on a Business Day before 5:00 p.m. in the time zone of the receiving party, otherwise upon the following Business Day after receipt of proof of delivery, or (c) at the time sent (if sent before 5:00 p.m., addressee’s local time and on the next Business Day if sent after 5:00 p.m., addressee’s local time), if sent by email of a .pdf, .tif, .gif, .jpg or similar attachment. All notices and other communications must also be sent by email, with the subject line “Mobileye Master Transaction Agreement Notice.” All notices and other communications hereunder shall be delivered to the addresses set forth below:

 

if to Intel:

 

Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95054

	Attention:	General Counsel
	Email:	****

 

if to Mobileye:

 

Mobileye Global Inc.
c/o Mobileye B.V.
Har Hotzvim, 13 Hartom Street
P.O. Box 45157 Jerusalem 9777513, Israel

	Attention:	General Counsel
	Email:	****

 

or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.

 

Section 7.7            Counterparts. This Agreement, including the Inter-Company Agreements and the Exhibits and Schedules hereto and thereto and the other documents referred to herein or therein, may be executed in counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement.

 

Section 7.8            Binding Effect; Assignment. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective legal representatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement. This Agreement may be enforced separately by each member of the Intel Group and each member of the Mobileye Group. Except as otherwise set forth in Article VI, Neither party may assign this Agreement or any rights or obligations hereunder, without the prior written consent of the other party, and any such assignment shall be void; provided, however, either party may assign this Agreement to a successor entity in conjunction with such party’s reincorporation in another jurisdiction or into another business form.

  

 

Section 7.9            Severability. If any term or other provision of this Agreement or the Exhibits or Schedules attached hereto is determined by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent possible.

 

Section 7.10        Failure or Indulgence not Waiver; Remedies Cumulative. No failure or delay on the part of either party hereto in the exercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All rights and remedies existing under this Agreement or the Exhibits or Schedules attached hereto are cumulative to, and not exclusive of, any rights or remedies otherwise available.

 

Section 7.11        Authority. Each of the Parties hereto represents to the other that (a) it has the corporate or other requisite power and authority to execute, deliver and perform this Agreement, (b) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate or other actions, (c) it has duly and validly executed and delivered this Agreement, and (d) this Agreement is a legal, valid and binding obligation, enforceable against it in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equity principles.

 

Section 7.12        Interpretation. The headings contained in this Agreement, in any Exhibit or Schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. For the purposes of this Agreement: (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms “Article,” “Section,” “Schedule,” “Exhibit” and paragraph are references to the Articles, Sections, Schedules, Exhibits and paragraphs to or of this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (iv) references to “$” shall mean U.S. dollars; (v) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not (unless the context demands otherwise) mean simply “if”; (viii) references to “written” or “in writing” include in electronic form; (ix) provisions shall apply, when appropriate, to successive events and transactions; (x) Mobileye and Intel have each participated in the negotiation and drafting of this Agreement, and, if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties hereto and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement; (xi) a reference to any Person includes such Person’s successors and permitted assigns; (xii) any reference to “days” means calendar days unless Business Days are expressly specified; (xiii) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded; (xiv) unless otherwise stated in this Agreement, references to any contract are to that contract as amended, modified or supplemented from time to time in accordance with the terms thereof; (xv) the word “shall” shall have the same meaning as the word “will”; (xvi) the word “any” shall mean “any and all”; and (xvii) the term “ordinary course of business” (or any phrase of similar import) shall mean “ordinary course of business, consistent with past practice.”

 

  

Section 7.13        Conflicting Agreements. None of the provisions of this Agreement are intended to supersede any provision in any Inter-Company Agreement (and any amendments thereto) or any other agreement with respect to the respective subject matters thereof. In the event of conflict between this Agreement and any Inter-Company Agreement (and any amendments thereto) or other agreement executed in connection herewith, the provisions of such other agreement shall prevail.

 

Section 7.14        Third-Party Beneficiaries. None of the provisions of this Agreement shall be for the benefit of or enforceable by any third party, including any creditor of any Person. No such third party shall obtain any right under any provision of this Agreement or shall by reasons of any such provision make any claim in respect of any Liability (or otherwise) against either Party hereto.

 

Article VIII
DEFINITIONS

 

Section 8.1            Defined Terms. The following capitalized terms shall have the meanings given to them in this Section 8.1:

 

“Action” means any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any federal, state, local, foreign or international governmental authority or any arbitration or mediation tribunal, other than any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation relating to Taxes.

 

“Administrative Services Agreement” means the Administrative Services Agreement, substantially in the form attached to the IPO Registration Statement as Exhibit [●].

 

“Affiliated Company” of any Person means any entity that controls, is controlled by, or is under common control with such Person. As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise.

 

“Agreement” shall mean this Master Transaction Agreement, together with the Schedules and Exhibits hereto, as the same may be amended from time to time in accordance with the provisions hereof.

 

“Business Day” means any day that is not a Friday, Saturday, a Sunday or other day on which commercial banks in Santa Clara, California, or Israel are required or authorized by law to be closed.

 

  

“Class A Applicable Stock” means at any time the (i) shares of Class A common stock owned by the Intel Group that are owned on the IPO Date, plus (ii) shares of Class A common stock purchased by the Intel Group pursuant to Article VI of this Agreement, plus (iii) shares of Class A common stock that were issued to the Intel Group in respect of shares described in either clause (i) or clause (ii) in any reclassification, share combination, share subdivision, share dividend, share exchange, merger, consolidation or similar transaction or event.

 

“Class A common stock” shall mean the Class A common stock, par value $0.01 per share, of Mobileye.

 

“Class A Ownership Percentage” means, at any time, the fraction, expressed as a percentage and rounded to the nearest thousandth of a percent, whose numerator is the number of shares owned of the Class A Applicable Stock and whose denominator is the aggregate number of outstanding shares of Class A common stock and Class B common stock of Mobileye; provided, however, that any shares of Common Stock issued by Mobileye in violation of its obligations under Article VI of this Agreement shall not be deemed outstanding for the purpose of determining the Class A Ownership Percentage.

 

“Class B Applicable Stock” means at any time the (i) shares of Class B common stock owned by the Intel Group that are owned on the IPO Date, plus (ii) shares of Class B common stock purchased by the Intel Group pursuant to Article VI of this Agreement, plus (iii) shares of Class B common stock that were issued to the Intel Group in respect of shares described in either clause (i) or clause (ii) in any reclassification, share combination, share subdivision, share dividend, share exchange, merger, consolidation or similar transaction or event.

 

“Class B common stock” shall mean the Class B common stock, par value $0.01 per share, of Mobileye.

 

“Class B Ownership Percentage” means, at any time, the fraction, expressed as a percentage and rounded to the nearest thousandth of a percent, whose numerator is the number of shares owned of the Class B Applicable Stock and whose denominator is the aggregate number of outstanding shares of Class A common stock and Class B common stock of Mobileye; provided, however, that any shares of Common Stock issued by Mobileye in violation of its obligations under Article VI of this Agreement shall not be deemed outstanding for the purpose of determining the Class B Ownership Percentage.

 

“Code” means the Internal Revenue Code of 1986 (or any successor statute), as amended from time to time, and the regulations promulgated thereunder.

 

“Common Stock” means the Class A common stock and Class B common stock of Mobileye.

 

“Continuously Effective” with respect to a specified registration statement, means that such registration statement shall not cease to be effective and available for transfers of Registrable Securities in accordance with the method of distribution set forth therein for longer than five (5) Business Days during the period specified in the relevant provision of this Agreement.

 

“Contract” means any contract, agreement, lease, license, sales order, purchase order, instrument or other commitment that is binding on any Person or any part of its property under applicable law.

 

 

“Distribution” means a distribution by Intel of Common Stock (and preferred stock, if any) of Mobileye or common stock (and preferred stock, if any) of a Person that is a successor to Mobileye, which distribution is to holders of common stock of Intel and is intended to qualify as a tax-free distribution under Section 355 of the Code.

 

“Distribution Date” means the date on which a Distribution occurs.

 

“Effective Date” means the date registration statement filed pursuant to Article IV hereof is declared effective by the Commission.

 

“Final Determination” has the meaning set forth in the Tax Sharing 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” shall mean any federal, state, local, foreign or international court, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority.

 

“Holders” shall mean, collectively, Intel and its Affiliated Companies (other than Mobileye) who from time to time own Registrable Securities, each of such entities separately is sometimes referred to herein as a “Holder.”

 

“Indemnifying Party” means any party which may be obligated to provide indemnification to an Indemnitee pursuant to Section 5.2 or Section 5.3 hereof or any other section of this Agreement or any Inter-Company Agreement.

 

“Indemnitee” means any party which may be entitled to indemnification from an Indemnifying Party pursuant to Section 5.2 or Section 5.3 hereof or any other section of this Agreement or any Inter-Company 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.

 

“Insurance Policies” means insurance policies pursuant to which a Person makes a true risk transfer to a third-party insurer.

 

“Insurance Proceeds” means those monies: (a) received by an insured from a third-party insurance carrier; (b) paid by a third-party insurance carrier on behalf of the insured; or (c) from Insurance Policies.

 

 

“Intel Business” means any business that is then conducted by Intel and described in its periodic filings with the Commission, other than the Mobileye Business.

 

“Intel Group” means the affiliated group (within the meaning of Section 1504(a) of the Code), or similar group of entities as defined under corresponding provisions of the laws of other jurisdictions, of which Intel is the common parent corporation, and any corporation or other entity which may be, may have been or may become a member of such group from time to time, but excluding any member of the Mobileye Group.

 

“Intel Indemnitees” means Intel, each member of the Intel Group and each of their respective directors, officers and employees.

 

“Liabilities” means all debts, liabilities, guarantees, assurances, commitments and obligations, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including, without limitation, whether arising out of any Contract or tort based on negligence or strict liability) and whether or not the same would be required by generally accepted principles and accounting policies to be reflected in financial statements or disclosed in the notes thereto.

 

“Loss” and “Losses” mean any and all damages, losses, deficiencies, Liabilities, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses (including, without limitation, the costs and expenses of any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and the costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder), including direct and consequential damages, but excluding punitive damages (other than punitive damages awarded to any third party against an indemnified party).

 

“Maximum Number” when used in connection with an Underwritten Offering, shall mean the maximum number of shares of Mobileye Capital Stock (or amount of other Registrable Securities) that the Underwriters’ Representative has informed Mobileye may be included as part of such offering without materially and adversely affecting the success or pricing of such offering.

 

“Mobileye Balance Sheet” shall mean Mobileye’s unaudited consolidated balance sheet for the most recently completed fiscal quarter as of the IPO Date.

 

“Mobileye Business” means the business of autonomous driving and advanced driver assistance systems and delivering mobility-as-a-service by aggregating public transit data and user data to provide multimodal trip planning resources technology presently conducted by Mobileye, as more completely described in the IPO Registration Statement, or following the IPO Date, such business that is then conducted by Mobileye and described in its periodic filings with the Commission.

 

“Mobileye Capital Stock” means all classes or series of capital stock of Mobileye.

 

“Mobileye Group” means the affiliated group (within the meaning of Section 1504(a) of the Code), or similar group of entities as defined under corresponding provisions of the laws of other jurisdictions, of which Mobileye will be the common parent corporation immediately after the Distribution, and any corporation or other entity which may become a member of such group from time to time.

 

 

“Mobileye Indemnitees” means Mobileye, each member of the Mobileye Group and each of their respective directors, officers and employees.

 

“Mobileye Liabilities” shall mean (without duplication) the following Liabilities:

 

(i)        all Liabilities reflected in the Mobileye Balance Sheet;

 

(ii)      all Liabilities of Intel or its Subsidiaries that arise after the date of the Mobileye Balance Sheet that would be reflected in a Mobileye balance sheet as of the date of such Liabilities, if such balance sheet was prepared using the same principles and accounting policies under which the Mobileye Balance Sheet was prepared;

 

(iii)      all Liabilities that should have been reflected in the Mobileye Balance Sheet but are not reflected in the Mobileye Balance Sheet due to mistake or unintentional omission;

 

(iv)      all Liabilities (other than Liabilities for Taxes, which are governed by the Tax Sharing Agreement), whether arising before, on or after the IPO Date, that relate to, arise or result from:

 

(A)          the operation of the Mobileye Business as conducted at any time prior to, on or after the IPO 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)          the operation of any business conducted by any member of the Mobileye Group at any time after the IPO 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));

 

(v)      all Liabilities that are expressly contemplated by this Agreement, or any other Inter-Company Agreement (or the Schedules hereto or thereto) as Liabilities to be assumed by Mobileye or any member of the Mobileye Group; and

 

(vi)     Liabilities of any member of the Mobileye Group under this Agreement or any of the Inter-Company Agreements.

 

After the IPO Date, Intel and Mobileye may receive invoices evidencing liabilities jointly incurred by or on behalf of both of them or their respective Affiliates. Accordingly, each of Intel and Mobileye agrees that such joint liabilities shall be divided among Intel, Mobileye and their respective Affiliates consistent with past practice and “Mobileye Liabilities” shall include the portion so allocated to Mobileye.

 

“Ownership Percentage” means, at any time, the fraction, expressed as a percentage and rounded to the nearest thousandth of a percent, whose numerator is the number of shares equal to the sum of the Class A Applicable Stock and the Class B Applicable Stock owned and whose denominator is the aggregate number of outstanding shares of Class A common stock and Class B common stock of Mobileye; provided, however, that any shares of Common Stock issued by Mobileye in violation of its obligations under Article VI of this Agreement shall not be deemed outstanding for the purpose of determining the Ownership Percentage.

 

 

“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 entity or any department, agency or political subdivision thereof.

 

“Public Offering” means an offering of equity securities of Mobileye pursuant to an effective registration statement under the Securities Act, including an offering in which Holders are entitled to sell Securities pursuant to the terms of this Agreement.

 

“Registrable Securities” means (i) the Class A common stock and the Class B common stock held by Intel immediately following the IPO Date (the “Shares”), (ii) any other securities issued or distributed to Intel in respect of the Class A common stock or Class B common stock by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, reorganization, merger, consolidation or otherwise, (iii) any Class A common stock or other securities received by Intel into which or for which Class B common stock are converted or exchanged or are convertible or exchangeable, (iv) any other Class A common stock or Class B common stock acquired by Intel prior to the Distribution Date, and (v) any other successor securities received by Intel in respect of any of the forgoing (i) through (iv); provided that in the event that any Registrable Securities (as defined without giving effect to this proviso) are being registered pursuant hereto, the Holder may include in such registration (subject to the limitations of this Agreement otherwise applicable to the inclusion of Registrable Securities) any Class A common stock or Class B common stock or securities acquired in respect thereof thereafter acquired by such Holder, which shall also be deemed to be “Shares” and accordingly Registrable Securities, for purposes of such registration. As to any particular Registrable Securities, such Registrable Securities shall cease to be Registrable Securities when (w) a registration statement with respect to the sale by Intel shall have been declared effective under the Securities Act and such Shares shall have been disposed of in accordance with such registration statement, (x) they shall have been distributed to the public in accordance with Rule 144 or they may be sold or transferred by the Holder thereof without restriction pursuant to Rule 144, (y) they shall have been otherwise transferred by Intel to an entity or Person that is not an Affiliated Company of Intel, new certificates for such securities not bearing (or book-entry positions not subject to) a legend restricting further transfer shall have been delivered by Mobileye and subsequent disposition of them shall not require registration or qualification of them under the Securities Act or any state securities or blue sky law then in effect or (z) they shall have ceased to be outstanding.

 

“Registration Expenses” means any and all out-of-pocket expenses incident to performance of or compliance with Article IV of this Agreement, including, without limitation, (i) all Commission registration and filing fees, (ii) all fees and expenses of complying with securities or blue sky laws (including fees and disbursements of counsel for any underwriters in connection with blue sky qualifications of the Registrable Securities) or relating to the National Association of Securities Dealers, Inc., (iii) all printing, messenger and delivery expenses, (iv) all fees and expenses incurred in connection with listing (or authorizing for quotation) the Registrable Securities on a securities exchange or automated inter-dealer quotation system pursuant to the requirements hereof, (v) the fees and disbursements of counsel for Mobileye and of its independent public accountants, (vi) all expenses in connection with the preparation, printing and filing of the registration statement, any preliminary prospectus or final prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to any Holders, underwriters and dealers and all expenses incidental to delivery of the Registrable Securities, (vii) any fees and disbursements of underwriters customarily paid by the issuers or sellers of securities, and the reasonable fees and expenses of any special experts retained in connection with the requested registration, but excluding underwriting discounts and commissions and transfer taxes, if any, which shall be paid by the applicable Holder, and (viii) the expenses incurred in connection with making “road show” presentations and holding meetings with potential investors to facilitate the distribution and sale of Registrable Securities.

 

 

“Registration Statement” means any registration statement of Mobileye that covers Registrable Securities pursuant hereto filed with, or to be filed with, the Commission under the rules and regulations promulgated under the Securities Act, including the related prospectus, pre- and post- effective amendments and supplements to such registration statement and all exhibits and all material incorporated by reference in such registration statement.

 

“Rule 144” means Rule 144 (or any successor rule to similar effect) promulgated under the Securities Act.

 

“Rule 415 Offering” means an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act.

 

“Securities Act” means the Securities Act of 1933, as amended.

 

“Shares” shall have the meaning set forth in the definition of Registrable Securities.

 

“Stock” means shares of capital stock (whether denominated as common stock or preferred stock), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or business trust, whether voting or non-voting.

 

“Subsidiary” of any Person means a corporation, limited liability company, joint venture, partnership, trust, association or other entity in which such Person: (1) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (A) the total combined voting power of all classes of voting securities of such entity, (B) the total combined equity interests, or (C) the capital or profits interest, in the case of a partnership; or (2) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body.

 

“Tax” and “Taxes” have the meaning set forth in the Tax Sharing Agreement.

 

“Tax Sharing Agreement” means the Tax Sharing Agreement, substantially in the form attached to the IPO Registration Statement as Exhibit [●].

 

“Underwriters’ Representative” when used in connection with an Underwritten Offering, shall mean the managing underwriter of such offering, or, in the case of a co-managed underwriting, the managing underwriters designated as the Underwriters’ Representative by the co-managers.

 

 

“Underwritten Offering” shall mean a registration in which securities of Mobileye are sold to one or more underwriters, or through one or more brokers or agents for reoffering to the public and the deliverables provided in Section 4.6(l) and Section 4.6(s) hereof are provided.

 

Section 8.2            Additional Definitions. The following capitalized terms have the respective meanings given to them in the respective Sections of this Agreement set forth opposite each of the capitalized terms below:

 

AAA	3.10(b)
AAA Rules	3.10(b)
Blackout Period	4.5
Commission	Recitals
Company Notice	4.1(a)
Company Piggyback Notice	4.3(a)
Cyclops	3.13(c)(i)
Demand Period	4.1(b)
Demand Registration	4.1(a)
Demand Registration Statement	4.1(a)
Eligible Holders	4.1(a)
Exchange Act	2.1(a)
Fair Market Value	6.1(a)(ii)
GAAP	3.9
Initiating Holder	4.1(a)
Inspectors	4.6(k)
Intel	Preamble
Intel’s Auditors	3.3(b)
Inter-Company Agreements	1.1
IPO	Recitals
IPO Conditions	2.3
IPO Date	Recitals
IPO Registration Statement	Recitals
Issuance Event	6.2
Issuance Event Date	6.2
Long-Form Registration	4.1(a)
Maximum Offering Size	4.1(c)
Mobileye	Preamble
Mobileye’s Auditors	3.3(a)
Mobileye Charter	3.17
NASDAQ	2.1(c)
Notifiable Transaction	3.16
Option	6.1(a)
Option Notice	6.2
Other Holders	4.1(a)
Other Securities	4.3(a)
Party or Parties	Preamble
Piggyback Registration	4.3(a)
Privileged Information	3.5(a)

 

 

Privileges	3.5(a)
Records	4.6(k)
Remaining Intel Awards	3.8(b)
Request	4.1(a)
Retention Period	3.2(d)
SEC	3.9
Selling Holder	4.7(a)
Shelf Offering Request	4.2(a)
Shelf Period	4.2(b)
Shelf Registration Statement	4.2(a)
Short-Form Registration	4.1(a)
Third-Party Claim	5.7(a)
Underwriters	2.1(a)
Underwriting Agreement	2.1(a)
Underwritten Shelf Takedown	4.2(c)
Underwritten Shelf Takedown Notice	4.2(c)
Underwritten Shelf Takedown Request	4.2(c)

 

 

WHEREFORE, the Parties have signed this Master Transaction Agreement effective as of the date first set forth above.

 

	INTEL CORPORATION
	By:
	Name:
	Title:
	MOBILEYE GLOBAL INC.
	By:
	Name:
	Title:

 

 

 

Exhibit 10.3

 

ADMINISTRATIVE SERVICES AGREEMENT

 

dated as of [●], 2022

 

between

 

Intel Corporation

 

and

 

Mobileye Global Inc.

 

 

TABLE OF CONTENTS

 

		Page
Article I
DEFINITIONS
Section 1.01	Definitions	1
Section 1.02	Internal References	5
Section 1.03	Interpretation	5
Article II
PURCHASE AND SALE OF SERVICES
Section 2.01	Purchase and Sale of Services	6
Section 2.02	Additional Services	6
Article III
SERVICE COSTS; OTHER CHARGES
Section 3.01	Service Costs	6
Section 3.02	Payment	7
Section 3.03	Financial Responsibility for Intel Personnel	7
Article IV
STANDARD OF PERFORMANCE AND INDEMNIFICATION
Section 4.01	General Standard of Service	8
Section 4.02	Services Management	8
Section 4.03	Limitation of Liability	8
Section 4.04	Indemnification	9
Article V
TERM AND TERMINATION
Section 5.01	Term	9
Section 5.02	Termination	10
Section 5.03	Effect of Termination	10
Article VI
Confidentiality
Section 6.01	CNDA	10
Article VII
INTELLECTUAL PROPERTY
Section 7.01	Intellectual Property	11

 

 

Article VIII
MISCELLANEOUS
Section 8.01	Other Agreements	13
Section 8.02	No Agency	13
Section 8.03	Subcontractors	13
Section 8.04	Force Majeure	13
Section 8.05	Entire Agreement	14
Section 8.06	Information	14
Section 8.07	Notices	14
Section 8.08	Dispute Resolution	15
Section 8.09	Governing Law	16
Section 8.10	Severability	16
Section 8.11	No Third-Party Beneficiary	16
Section 8.12	Amendment	16
Section 8.13	Counterparts	17
Section 8.14	Authority	17

 

 

ADMINISTRATIVE SERVICES AGREEMENT

 

This Administrative Services Agreement is dated as of [●], 2022 (the “Effective Date”) by and between Mobileye Global Inc., a Delaware corporation (“Mobileye”), and Intel Corporation, a Delaware corporation (“Intel”). Mobileye and Intel are sometimes referred to herein separately as a “Party” and together as the “Parties.” Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in Article I hereof.

 

RECITALS

 

WHEREAS, Intel is the beneficial owner of all the issued and outstanding common stock of Mobileye;

 

WHEREAS, the Parties currently contemplate that Mobileye will make an initial public offering (the “Offering”) of its Class A common stock pursuant to a Registration Statement on Form S-1, filed on [●], 2022, as amended (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”);

 

WHEREAS, Intel directly or indirectly provides certain administrative, legal, financial and other services to the Mobileye Entities (as defined below);

 

WHEREAS, following consummation of the Offering, Mobileye desires Intel to continue to provide certain administrative, legal, tax, financial and other services to the Mobileye Entities, as more fully set forth in this Agreement; and

 

WHEREAS, each Party desires to set forth in this Agreement the principal terms and conditions pursuant to which the Intel Entities (as defined below) will provide certain services to the Mobileye Entities.

 

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, for themselves and their respective successors and assigns, hereby covenant and agree as follows:

 

Article I
DEFINITIONS

 

Section 1.01      Definitions. (a) As used in this Agreement, the following terms shall have the following meanings, applicable both to the singular and the plural forms of the terms described:

 

“Affiliate” means an entity that directly or indirectly Controls, or is directly or indirectly Controlled by, or is under common Control with, either Intel or Mobileye, but only as long as such Control exists; provided that for purposes of this Agreement:

 

(a)          none of the Mobileye Entities will be considered an Affiliate of any Intel Entities;

 

 

(b)          none of the Intel Entities will be considered an Affiliate of any Mobileye Entities;

 

(c)          no portfolio company of Intel Capital will be considered an Affiliate of Intel or any of Intel’s or the Intel Entities’ Affiliates; and

 

(d)          none of Intel or any of Intel’s or the Intel Entities’ Affiliates will be considered an Affiliate of such portfolio company or any of such portfolio company’s Subsidiaries.

 

“Agreement” means this Administrative Services Agreement, together with the schedules hereto, as the same may be amended and supplemented from time to time in accordance with the provisions hereof.

 

“Background Intellectual Property Rights” means all Intellectual Property Rights owned, controlled, obtained, or licensed by a Party at any time prior to or after the term of this Agreement, or arising from development of Technology created independently of this Agreement.

 

“Business Day” means any day that is not a Saturday, a Sunday or other day on which commercial banks in Santa Clara, California, are required or authorized by law to be closed.

 

“Contract” means any contract, agreement, lease, license, sales order, purchase order, instrument or other commitment that is binding on any Person or any part of such Person’s property under applicable law.

 

“Control” or “Controlled” means directly or indirectly owning or having voting control over more than fifty percent (50%) of the outstanding securities entitled to vote for the election of directors or similar managing authority of an entity, or otherwise having the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body of an entity.

 

“Feedback” means any ideas, suggestions or recommendations Mobileye Entities may provide to Intel Entities, however designated, marked or labeled, in connection with any Services or Intel Materials.

 

“Intel Employee” means an employee of an Intel Entity or Subcontractor listed on any Schedule that will be engaged in providing Services.

 

“Intel Entities” means Intel and its Subsidiaries (other than the Mobileye Entities), and “Intel Entity” means any one of the Intel Entities currently in place on the effective date of the Registration Statement and any entity which becomes a Subsidiary of Intel after the date hereof.

 

“Intel Materials” means all Materials Solely Authored by personnel of an Intel Entity before or during the performance of the Services and delivered or made available to Mobileye Entities under this Agreement in connection with the provision and receipt of the Services and copies of the foregoing.

 

“Intellectual Property Rights” means all intellectual property rights, including all copyrights, copyright applications, copyright registrations, or any analogous or related right arising under statutory or common law, anywhere in the world, including any rights from laws implementing the European Database Directive 96/9/EC (“Copyrights”); all Marks; all trade secret rights or any analogous right, arising under statutory or common law, anywhere in the world (“Trade Secret Rights”), and all patent rights in classes and types of utility and design patents applied for and issued (including substitutions, continuations, continuations-in-part, divisions, reissues, re-examinations, extensions, renewals and industrial design registrations) (“Patents”), anywhere in the world.

 

 

“Intel Residuals” means information in intangible form, including, without limitation, ideas, concepts, know-how, or techniques, in the unaided memories of the Persons who have had access to Intel Materials.

 

“Inter-Company Agreements” means this Agreement and each of the agreements set forth on Schedule II hereto.

 

“Joint Materials” means Materials authored by personnel of both an Intel Entity and a Mobileye Entity, where the contributions of each party are intentionally combined as part of a unitary work, during the performance or receipt of the Services under this Agreement, and any copies of the foregoing.

 

“Liabilities” means all debts, liabilities, guarantees, assurances, commitments and obligations, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including, without limitation, whether arising out of any Contract or tort based on negligence or strict liability) and whether or not the same would be required by generally accepted principles and accounting policies to be reflected in financial statements or disclosed in the notes thereto.

 

“Marks” means trademarks, service marks, trade names, trade dress, logos, corporate names and other source or business identifiers, together with the goodwill associated with any of the foregoing, and all applications, registrations, renewals and extensions of any of the foregoing.

 

“Master Transaction Agreement” means the Master Transaction Agreement between the Parties of even date herewith.

 

“Materials” means all records, reports, documents, papers, drawings, designs, graphics, typographical arrangements, software, and all other materials in whatever form, including hard copy and electronic form.

 

“Mobileye Entities” means Mobileye and its Subsidiaries and any entity which becomes a Subsidiary of Mobileye after the date hereof, and “Mobileye Entity” means any one of the Mobileye Entities.

 

“Mobileye Liabilities” has the meaning set forth in the Master Transaction Agreement.

 

“Mobileye Materials” means all Materials Solely Authored by personnel of a Mobileye Entity, before or during the receipt of the Services under this Agreement and delivered or made available to Intel Entities under this Agreement in connection with the provision and receipt of the Services, and any copies of the foregoing.

 

 

“Mobileye Residuals” means information in intangible form, including, without limitation, ideas, concepts, know-how, or techniques, in the unaided memories of the Persons who have had access to Mobileye Materials.

 

“Offering Date” means the date on which the Offering is consummated.

 

“Person” means any individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including any governmental authority.

 

“Residuals” means the Intel Residuals and the Mobileye Residuals.

 

“Schedules” means any one or more of the schedules referred to in and attached to this Agreement.

 

“Services” means the various administrative, financial, legal, tax and other services to be provided by Intel to or on behalf of the Mobileye Entities as described on the Schedules and any Additional Services provided pursuant to this Agreement.

 

“Solely Authored” means when only personnel of either an Intel Entity or a Mobileye Entity authors a work and it is not intentionally combined with the work of the other party as part of a unitary work.

 

“Subsidiary” means, as to any Person, a corporation, limited liability company, joint venture, partnership, trust, association or other entity in which such Person: (1) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (A) the total combined voting power of all classes of voting securities of such entity, (B) the total combined equity interests, or (C) the capital or profits interest, in the case of a partnership; or (2) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body.

 

“Technology” means all information (including ideas, plans, know-how, data, algorithms, models, discoveries, inventions, processes, and methods); tangible embodiments (including hardware, devices, machinery, equipment, tools, apparatus, prototypes, samples, and compositions), and works of authorship (including documents, specifications, reports, presentations, software, firmware, RTL code, libraries, databases, compilations, designs, schematics, and photographs), in any format on any media.

 

“Technology and Services Agreement” means the Technology and Services Agreement between the Parties of even date herewith.

 

 

(b)          Additional Defined Terms. In addition to the defined terms set forth in Section 1.01(a), each of the following capitalized terms has the meaning specified in the Section set forth opposite such term below:

 

TERM	SECTION
AAA	Section 8.08(b)
AAA Rules	Section 8.08(b)
Actions	Section 4.04(a)
Additional Services	Section 2.02
CNDA	Section 6.01
Confidential Information	Section 6.01
Effective Date	Preamble
Force Majeure	Section 8.04(a)
Initial Term	Section 5.01
Intel	Preamble
Intel Indemnified Person	Section 4.03(a)
Mobileye	Preamble
Offering	Recitals
Parties	Preamble
Party	Preamble
Registration Statement	Recitals
Renewal Term	Section 5.01
Securities Act	Recitals
Services Manager	Section 4.02
Subcontractor	Section 8.03

 

Section 1.02      Internal References. Unless the context indicates otherwise, references to Articles, Sections and paragraphs shall refer to the corresponding articles, sections and paragraphs in this Agreement and references to the parties shall mean the Parties to this Agreement.

 

Section 1.03      Interpretation. The headings contained in this Agreement, in any Exhibit or Schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. For the purposes of this Agreement: (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms “Article,” “Section,” “Schedule” and paragraph are references to the Articles, Sections, Schedules and paragraphs to or of this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (iv) references to “$” shall mean U.S. dollars; (v) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not (unless the context demands otherwise) mean simply “if”; (viii) references to “written” or “in writing” include in electronic form; (ix) provisions shall apply, when appropriate, to successive events and transactions; (x) Mobileye and Intel have each participated in the negotiation and drafting of this Agreement, and, if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties hereto and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement; (xi) a reference to any Person includes such Person’s successors and permitted assigns; (xii) any reference to “days” means calendar days unless Business Days are expressly specified; (xiii) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded; (xiv) unless otherwise stated in this Agreement, references to any contract are to that contract as amended, modified or supplemented from time to time in accordance with the terms thereof; (xv) the word “shall” shall have the same meaning as the word “will”; (xvi) the word “any” shall mean “any and all”; and (xvii) the term “ordinary course of business” (or any phrase of similar import) shall mean “ordinary course of business, consistent with past practice.”

 

 

Article II
PURCHASE AND SALE OF SERVICES

 

Section 2.01      Purchase and Sale of Services.

 

(a)          Subject to the terms and conditions of this Agreement and in consideration of the costs for Services described below, Intel agrees to provide or cause to be provided to the Mobileye Entities, and Mobileye agrees to purchase from Intel, the Services, until such Services are terminated in accordance with the provisions hereof; provided that, for the avoidance of doubt, Intel shall have no obligation to provide any Services to the extent doing so would violate applicable law.

 

(b)          The Parties acknowledge and agree that (i) the Services to be provided, or caused to be provided, by Intel under this Agreement shall, at Mobileye’s request, be provided directly to Mobileye or Subsidiaries of Mobileye and (ii) Intel may satisfy its obligation to provide or to procure the Services hereunder by causing one or more Intel Entities to provide or to procure such services. With respect to the Services provided to, or procured on behalf of, any Subsidiary of Mobileye, Mobileye agrees to pay on behalf of such Subsidiary all amounts payable by or in respect of such Services pursuant to this Agreement.

 

Section 2.02      Additional Services. In addition to the Services to be provided or procured by Intel in accordance with Section 2.01 and set forth on the Schedules, if requested by Mobileye, and to the extent that Intel and Mobileye may mutually agree in writing, Intel shall provide additional services to Mobileye (“Additional Services”). The scope of any such services, as well as the costs and other terms and conditions applicable to such services, shall be as mutually agreed by Intel and Mobileye prior to the provision of such Additional Services, save that services for the creation, modification, or improvement of Technology shall not be performed under this Agreement (and, to the extent mutually agreed, such services shall be provided under that certain Technology and Services Agreement by and between the Parties).

 

Article III
SERVICE COSTS; OTHER CHARGES

 

Section 3.01      Service Costs.

 

(a)          Each Service (other than Additional Services) will be provided at the price set forth on the Schedules, as amended from time to time. In the event of a material change in the level of service for any Service prior to the expiration of the term set forth on a Schedule, the Parties will work together in good faith to recalculate the price for such Service and amend such Schedule, as appropriate.

 

 

(b)          No later than 15 days prior to the end of the Initial Term or any Renewal Term, the Parties shall commence discussions to determine the appropriate level of service for each Service to be provided pursuant to the Schedules in the subsequent Renewal Term based on a good faith review of the Services and levels of service provided in the then-current term and a good faith estimate of the Mobileye Entities’ future service requirements. The Parties shall use their reasonable best efforts to execute and deliver amended Schedules for the subsequent Renewal Term prior to the expiration of the then-current term set forth on the Schedules.

 

(c)          Any Additional Services provided by Intel to Mobileye shall be provided at rates mutually agreed to by the Parties in writing.

 

Section 3.02      Payment.

 

(a)          Charges for Services shall be invoiced quarterly in arrears by Intel, within three (3) Business Days of the end of a quarter. The invoice shall set forth in reasonable detail for the period covered by such invoice (i) the Services rendered, (ii) the aggregate amount charged for each type of Service provided and (iii) such additional information as Mobileye may reasonably request at least ten (10) Business Days prior to the end of a quarter. Each invoice shall be directed to the Chief Executive Officer or Chief Financial Officer of Mobileye or such other individual designated in writing from time to time by the Mobileye Chief Executive Officer or Chief Financial Officer. Each such invoice shall be payable within sixty (60) days after receipt by Mobileye; provided that if Mobileye, in good faith, disputes any invoiced charge, payment of such charge may be made only after mutual resolution of such dispute. Mobileye agrees to notify Intel promptly, and in no event later than sixty (60) days following receipt of Intel’s invoice, of any disputed charge. Unless otherwise agreed in writing between the Parties, all payments made pursuant to this Agreement shall be made in U.S. dollars.

 

(b)          During the term of this Agreement, Intel shall keep such books, records and accounts as are reasonably necessary to verify the calculation of the fees and related expense for Services provided hereunder. Intel shall provide documentation supporting any amounts invoiced pursuant to this Section 3.02 as Mobileye may from time to time reasonably request. Mobileye shall have the right to review such books, records and accounts at any time upon reasonable notice, and Mobileye agrees to conduct any such review in a manner so as not to unreasonably interfere with Intel’s normal business operations.

 

Section 3.03      Financial Responsibility for Intel Personnel. Intel will pay for all personnel and other related expenses, including salary or wages, of its employees performing the Services. No individual providing Services to a Mobileye Entity pursuant to the terms of this Agreement shall be deemed to be, or shall have any rights as, an employee of any Mobileye Entity.

 

 

Article IV
STANDARD OF PERFORMANCE AND INDEMNIFICATION

 

Section 4.01      General Standard of Service. Except as otherwise agreed to in writing by the Parties or as described in this Agreement, the Parties agree that the nature, quality, degree of skill and standard of care applicable to the delivery of the Services hereunder, and the skill levels of the Intel Employees providing such Services, shall be substantially consistent with those which Intel exercised or employed in providing similar services to Mobileye during the twelve (12) months prior to the Effective Date. Until the later of (i) Intel ceasing to be a “controlling person” as such term is used in the Securities Act and (ii) such date on which Intel ceases to provide services under this Agreement, the Parties will take reasonable steps to assure that the employees providing services hereunder comply with all policies and directives identified by the other as critical to legal and regulatory compliance that are applicable to such employees.

 

Section 4.02      Services Management. Intel and Mobileye each agree to appoint one of their respective employees who will have overall responsibility for managing and coordinating the delivery and receipt of Services, including making available the services of appropriately qualified employees and resources to enable the provision of the Services (each, a “Services Manager”). The Services Managers will consult and coordinate with each other regarding the provision of Services.

 

Section 4.03      Limitation of Liability.

 

(a)          Mobileye agrees that none of the Intel Entities and their respective directors, officers, agents, and employees (each of the Intel Entities and their respective directors, officers, agents, and employees, an “Intel Indemnified Person”) shall have any liability, whether direct or indirect, in contract or tort or otherwise, to any Mobileye Entity or any other Person under the control of such Mobileye Entity for or in connection with the Services rendered or to be rendered by any Intel Indemnified Person pursuant to this Agreement, the transactions contemplated hereby or any Intel Indemnified Person’s actions or inactions in connection with any Services or such transactions, except for damages which have resulted from such Intel Indemnified Person’s breach of this Agreement, gross negligence, bad faith or willful misconduct in connection with the foregoing.

 

(b)          Notwithstanding the provisions of this Section 4.03, none of the Intel Entities shall be liable for any special, indirect, incidental, or consequential damages of any kind whatsoever (including, without limitation, attorneys’ fees) in any way due to, resulting from or arising in connection with any of the Services or the performance of or failure to perform Intel’s obligations under this Agreement. This disclaimer applies without limitation (1) to claims arising from the provision of the Services or any failure or delay in connection therewith; (2) to claims for lost profits; (3) regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise; and (4) regardless of whether such damages are foreseeable or whether Intel has been advised of the possibility of such damages.

 

(c)          None of the Intel Entities shall have any liability to any Mobileye Entity or any other Person for failure to perform Intel’s obligations under this Agreement or otherwise, where such failure to perform similarly affects the Intel Entities receiving the same or similar services and does not have a disproportionately adverse effect on the Mobileye Entities, taken as a whole.

 

 

(d)          In addition to the foregoing, Mobileye agrees that, in all circumstances, it shall use commercially reasonable efforts to mitigate and otherwise minimize damages to the Mobileye Entities, individually and collectively, whether direct or indirect, due to, resulting from or arising in connection with any failure by Intel to comply fully with Intel’s obligations under this Agreement.

 

Section 4.04      Indemnification.

 

(a)          Mobileye agrees to indemnify and hold harmless each Intel Indemnified Person from and against any damages related to, and to reimburse each Intel Indemnified Person for all reasonable expenses (including, without limitation, attorneys’ fees) as they are incurred in connection with, pursuing or defending any claim, action or proceeding, (collectively, “Actions”), arising out of or in connection with actions or inactions reasonably required to be performed, or directed by Mobileye to be performed, in connection with the Services rendered or to be rendered by any Intel Indemnified Person pursuant to this Agreement, the transactions contemplated hereby or any Intel Indemnified Person’s actions or inactions in connection with any such Services or transactions; provided that, Mobileye shall not be responsible for any damages incurred by any Intel Indemnified Person that have resulted from such Intel Indemnified Person’s breach of this Agreement, gross negligence, bad faith or willful misconduct in connection with any of the advice, actions, inactions, or Services referred to in this Section 4.04(a).

 

(b)          Intel agrees to indemnify and hold harmless each Mobileye director, officer, agent and employee from and against any damages related to, and to reimburse each such individual for all reasonable expenses (including, without limitation, attorneys’ fees) as they are incurred in connection with, pursuing or defending any Action arising out of or related to the breach of this Agreement, gross negligence, bad faith or willful misconduct of any Intel Indemnified Person in connection with the Services rendered or to be rendered pursuant to this Agreement; provided that, Intel shall not be responsible for any damages incurred by any Mobileye director, officer, agent or employee that have resulted from any Mobileye Entity’s, or any Mobileye Entity’s director’s, officer’s, agent’s or employee’s, breach of this Agreement, gross negligence, bad faith or willful misconduct in connection with the Services rendered or to be rendered pursuant to this Agreement.

 

Article V
TERM AND TERMINATION

 

Section 5.01      Term. Except as otherwise provided in this Article V or as otherwise agreed in writing by the Parties, (a) this Agreement shall have an initial term of two (2) years from the Effective Date (the “Initial Term”), and will be renewed automatically thereafter for successive three-month terms (each, a “Renewal Term”) unless either Party elects not to renew this Agreement by notice in writing to the other Party not less than ninety (90) days prior to the end of the then-current term, and (b) Intel’s obligation to provide or to procure, and Mobileye’s obligation to purchase, a Service shall, notwithstanding the term of this Agreement and unless otherwise agreed in writing between the Parties, cease as of the earlier of (i) the applicable date set forth in the Schedules or the applicable date set forth in any arrangement between the Parties pursuant to which Additional Services are provided (or if no such date is set forth, as of the end of the Initial Term or, if applicable, the applicable Renewal Term) or (ii) such earlier date determined in accordance with Section 5.02.

 

 

Section 5.02      Termination.

 

(a)          The Parties may by mutual agreement from time to time terminate this Agreement with respect to one or more of the Services, in whole or in part.

 

(b)          Mobileye may terminate any Service at any time (i) upon at least thirty (30) days prior written notice of such termination by Mobileye to Intel, effective as of such thirtieth (30th) day, and (ii) if Intel shall have failed to perform any of its material obligations under this Agreement relating to such Service, Mobileye shall have notified Intel in writing of such failure, and such failure shall have continued for a period of at least thirty (30) days after receipt by Intel of written notice of such failure from Mobileye, effective as of such thirtieth (30th) day.

 

Section 5.03      Effect of Termination.

 

(a)          Other than as required by law, upon the effective date of the termination of any Service pursuant to Section 5.01 or 5.02, Intel shall have no further obligation to provide the terminated Service and Mobileye shall have no obligation to pay any fees relating to such terminated Services or to make any other payments hereunder with respect to such terminated Services; provided that, notwithstanding such termination, (i) Mobileye shall remain liable to Intel for fees owed and payable in respect of Services provided prior to the effective date of the termination; (ii) Intel shall continue to charge Mobileye for administrative and program costs relating to benefits paid after but incurred prior to the termination of any Service, and Mobileye shall be obligated to pay such expenses in accordance with the terms of this Agreement; provided that (A) Intel makes reasonable efforts to obtain available refunds of such costs and (B) if Intel obtains a refund of any such costs already paid by Mobileye, Intel shall return such portion of the costs to Mobileye; and (iii) the provisions of Articles IV, V, VI and VIII shall survive any such termination indefinitely. Notwithstanding the earlier expiration or termination of this Agreement, the terms of this Agreement shall continue to govern any Service until the termination of such Service in accordance with Section 5.01 or 5.02.

 

(b)          Following termination of this Agreement with respect to any Service, the Parties agree to cooperate with each other in providing for an orderly transition of such Service to Mobileye or to a successor service provider as designated by Mobileye.

 

Article VI
Confidentiality

 

Section 6.01      CNDA. Confidential Information exchanged between the Parties shall be subject to the terms of the Corporate Non-Disclosure Agreement entered into between the Parties in connection with the Offering (the “CNDA”) incorporated here by reference. “Confidential Information” shall have the meaning defined in the CNDA; provided, however, that the licenses set forth in Article VII shall govern with respect to any Intel Materials or Mobileye Materials.

 

 

Article VII
INTELLECTUAL PROPERTY

 

Section 7.01      Intellectual Property.

 

(a)

Ownership.

 

(i)          This Agreement does not change the Parties’ ownership of their Background Intellectual Property Rights or any allocation of Intellectual Property Rights under the Technology and Services Agreement.

 

(ii)         Subject to Section 7.01(a)(i), all rights, title and interest in (a) Mobileye Materials shall be owned by Mobileye Entities or their suppliers, and (b) Intel Materials shall be owned by Intel Entities or their suppliers. The Parties must not remove any copyright, proprietary or other notices appearing on the Materials of the other Party.

 

(iii)        Subject to Section 7.01(a)(i), the Parties will jointly own the Copyrights and Trade Secret Rights in Joint Materials, and each Party hereby assigns to the other Party an equal, undivided ownership interest in the Copyrights and Trade Secret Rights in Joint Materials. Each Party has the right, to use, modify, and reproduce, perform, display, disclose, and distribute, and to create derivative works of and otherwise exploit in any manner Joint Materials and freely exercise, transfer, assign, license, encumber, and enforce all of its Copyright and Trade Secret Rights in the Joint Materials without the consent, joinder, or participation of, or payment or accounting to, the other Party; provided that where Joint Materials include information marked by a Party as confidential, such Joint Materials may not be disclosed or distributed to any third party other than contractors or service providers under Section 8.03 without the consent of the marking Party. Each Party hereby unconditionally and irrevocably waives any right it may have under applicable Law as a joint owner of the Copyright and Trade Secret Rights in the Joint Materials to require such consent, joinder, participation, payment or accounting.

 

(b)          Mobileye License to Intel. Mobileye, on behalf of itself and the other Mobileye Entities, hereby grants to the Intel Entities a non-exclusive, non-transferable, worldwide, sublicensable, royalty-free license, under Mobileye’s Copyrights and Trade Secret Rights in the Mobileye Materials, to use, reproduce, modify, perform and display and disclose the Mobileye Materials delivered by Mobileye to Intel (provided that the CNDA shall govern the disclosure of Confidential Information in Mobileye Materials to third parties other than contractors or service providers under Section 8.03), only for the purposes of providing and completing the Services.

 

(c)          Feedback. If Mobileye Entities provide Feedback to Intel Entities, the Intel Entities will be free under Mobileye’s Copyright and Trade Secret Rights in the Feedback, to use, disclose, reproduce, license, or otherwise distribute or exploit the Feedback in their sole discretion without any obligations or restrictions of any kind, including, without limitation, Intellectual Property Rights or licensing obligations.

 

 

(d)          Residuals. Intel Entities are free to use, for any purpose, the Mobileye Residuals resulting from access to, or work with, Mobileye Materials. Mobileye Entities are free to use, for any purpose, the Intel Residuals resulting from access to, or work with, Intel Materials. Residuals may be retained by Persons who have had access to Confidential Information and (i) the Intel Entities do not have any obligation to limit or restrict the assignment of these Persons, or to pay royalties for any work resulting from the use of Mobileye Residuals and (ii) the Mobileye Entities do not have any obligation to limit or restrict the assignment of these Persons, or to pay royalties for any work resulting from the use of Intel Residuals. This Section does not grant a license under either Party’s Copyrights or Patents.

 

(e)          Intel Licenses to Mobileye.

 

(i)          General License. Subject to the terms and conditions of this Agreement, Intel, on behalf of itself and the other Intel Entities, hereby grants the Mobileye Entities a non-exclusive, non-transferable, worldwide, royalty-free, perpetual license (without the right to sublicense, but without limiting Section 8.03), under Intel Entities’ Copyrights and Trade Secret Rights in the Intel Materials delivered by Intel to Mobileye for the purposes of the Services, to use, reproduce and perform and to disclose and display (provided that the CNDA shall govern the disclosure of Intel Materials marked as Intel’s Confidential Information to third parties other than contractors or service providers under Section 8.03) all Intel Materials solely in connection with the receipt of the Services, excluding any software licensed pursuant to Section 7.01(e)(ii).

 

(ii)         Software License. With respect to Intel Material that is software, the following section applies: Mobileye Entities’ use of any software (including, without limitation, bug fixes, patches, or other software) provided by Intel Entities to Mobileye Entities in the course of providing the Services is licensed to the Mobileye Entities on the terms accompanying the software, unless otherwise specified in the applicable Schedule.

 

(f)           No Other Rights. No rights are conveyed by either Party to the other Party under this Agreement in each Party’s respective Marks. Neither party grants any implied licenses to the other under any legal theory. The only licenses granted in this Agreement are the express licenses in this Section 7.01. This Agreement and the performance of the Services hereunder will not affect the ownership of any assets or responsibility for any liabilities allocated in the Master Transaction Agreement or any of the other Transaction Agreements. Neither Party will gain, by virtue of this Agreement or the Services provided hereunder, by implication or otherwise, any rights of ownership of any property or Intellectual Property Rights owned by the other or their respective Subsidiaries.

 

 

Article VIII
MISCELLANEOUS

 

Section 8.01      Other Agreements. In the event there is any inconsistency between the provisions of this Agreement and the respective provisions of any of the other Inter-Company Agreements, the respective provisions of such other Inter-Company Agreement shall govern.

 

Section 8.02      No Agency. Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the Parties hereto or constitute or be deemed to constitute any Party the agent or employee of the other Party for any purpose whatsoever, and neither Party shall have authority or power to bind the other Party or to contract in the name of, or create a liability against, the other Party in any way or for any purpose.

 

Section 8.03      Subcontractors. Intel may hire or engage one or more third-party subcontractors (each, a “Subcontractor”) to perform all or any of its obligations under this Agreement; provided that, subject to Section 4.03, Intel shall pay for all fees due each such Subcontractor and shall in all cases remain primarily responsible for all obligations undertaken by each such Subcontractor on Intel’s behalf pursuant to the terms of this Agreement with respect to the scope, quality, degree of skill and nature of the Services provided to Mobileye; and provided, further, that without the prior written consent of Mobileye, Intel may only hire or engage Subcontractors to perform the Services set forth on the Schedules to the extent that any such Subcontractor is a natural person performing similar services for Intel. Intel shall cause any Subcontractor performing Services under this Agreement to execute a nondisclosure agreement in content at least as protective as the Corporate Non-Disclosure Agreement, between Intel and Mobileye Global Inc. Without limiting the foregoing, each Party may hire or engage contractors or service providers in the exercise of the rights licensed pursuant to Article VII; provided that any such contractor or service provider is bound by confidentiality undertakings consistent with and no less protective of Confidential Information than the confidentiality undertakings under this Agreement (including, as applicable, the CNDA); provided, further, that each Party is liable for the acts and omissions of its respective contractors or service providers as if such acts or omissions were the acts or omissions of such Party.

 

Section 8.04      Force Majeure.

 

(a)          For purposes of this Section 8.04, “Force Majeure” means an event beyond the control of either Party, which by its nature could not have been foreseen by such Party, or, if it could have been foreseen, was unavoidable, and includes without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) and failure of energy sources.

 

(b)          Continued performance of a Service may be suspended immediately to the extent caused by Force Majeure. The Party claiming suspension of a Service due to Force Majeure will give prompt notice to the other of the occurrence of the event giving rise to the suspension and of its nature and anticipated duration. The Parties shall cooperate with each other to find alternative means and methods for the provision of the suspended Service.

 

 

(c)          Without limiting the generality of Section 4.03, neither Party shall be under any liability for failure to fulfill any obligation under this Agreement, so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered, or delayed as a consequence of circumstances of Force Majeure.

 

Section 8.05      Entire Agreement. This Agreement (including the Schedules constituting a part of this Agreement) and any other writing signed by the Parties that specifically references or is specifically related to this Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior or contemporaneous agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter hereof.

 

Section 8.06      Information. Subject to applicable law and privileges, each Party hereto covenants with and agrees to provide to the other Party all information regarding itself and transactions under this Agreement that the other Party reasonably believes is required to comply with all applicable federal, state, county and local laws, ordinances, regulations and codes, including, but not limited to, securities laws and regulations.

 

Section 8.07      Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, (b) if sent designated for overnight delivery by nationally recognized overnight air courier (such as DHL or Federal Express), upon receipt of proof of delivery on a Business Day before 5:00 p.m. in the time zone of the receiving party, otherwise upon the following Business Day after receipt of proof of delivery, or (c) at the time sent (if sent before 5:00 p.m., addressee’s local time and on the next Business Day if sent after 5:00 p.m., addressee’s local time), if sent by email of a .pdf, .tif, ..gif, .jpg or similar attachment. All notices and other communications must also be sent by email, with the subject line “Mobileye Administrative Services Agreement Notice.” All notices and other communications hereunder shall be delivered to the addresses set forth below:

 

(a)

If to Intel, to:

 

Intel Corporation

2200 Mission College Boulevard
Santa Clara, California 95054

Attention:

General Counsel

Email:

****

 

 

(b)

If to Mobileye, to:

 

Mobileye Global Inc.
c/o Mobileye B.V.

Har Hotzvim, 13 Hartom Street

P.O. Box 45157 Jerusalem 9777513, Israel

Attention:

General Counsel

Email:

****

 

or to such other address as the Person to whom notice is given may have previously furnished to the others in writing in the manner set forth above.

 

Section 8.08      Dispute Resolution.

 

(a)          Pre-Arbitration Resolution. Except as provided in Section 8.08(c)(ii), any dispute arising out of or relating to this Agreement will be resolved as follows: a Party will send notice of the dispute, including a detailed description of the dispute and relevant supporting documents. Senior management for each Party will then try to resolve the dispute. If the Parties do not resolve the dispute within 30 calendar days after the dispute notice, either Party may send notice of a demand for mediation. The Parties will then try to resolve the dispute with a mediator.

 

(b)          Arbitration. If the Parties do not resolve the dispute within 60 calendar days after the mediation demand, either Party may send notice of the specific issues to be arbitrated and initiate arbitration by filing a Demand for Arbitration with the American Arbitration Association (“AAA”). Except as provided in Section 8.08(c)(ii), a Party may not seek relief in court. The Commercial Arbitration Rules of the AAA in effect on the date a Party files a Demand for Arbitration (the “AAA Rules”) will apply, except as follows:

 

(i)          Seat and Law. Wilmington, Delaware, will be the seat of arbitration and the location of the proceedings, which will be conducted in English. Wilmington, Delaware, and United States law will be the law of the arbitration agreement (i.e., Section 8.08 (Dispute Resolution)).

 

(ii)         Limitations on Relief. Notwithstanding R-47 (Scope of Award), the arbitrator may not award (A) any remedy that prohibits a party or its customers from manufacturing, using, selling, or importing that party’s products, (B) any non-monetary relief for misappropriation of trade secrets or breach of confidentiality obligations, or (C) any remedy that requires a party to license any intellectual property rights. Neither the arbitrator nor an emergency arbitrator (as described in R-38 of the AAA Rules) may order conservatory, interim, or emergency measures. R-37 (Interim Measures) and R-38 (Emergency Measures of Protection) will not apply.

 

(iii)        Service. R-43 (Service of Notice and Communications) will not apply with regard to service of a Demand for Arbitration, which must be served in the same manner as is required to serve a summons and complaint under the Federal Rules of Civil Procedure.

 

 

(c)          Claims Not Subject to Arbitration. The following Disputes will not be subject to arbitration under Section 8.08(b):

 

(i)          The state and federal courts sitting in Wilmington, Delaware, will have exclusive jurisdiction over claims seeking to: (A) prohibit a party or its customers from manufacturing, using, selling, or importing that party’s products; and (B) require a party to license any intellectual property rights. The parties consent to personal jurisdiction and venue in those courts.

 

(ii)         Claims for misappropriation of trade secrets and breach of confidentiality obligations seeking injunctive or other non-monetary relief will not be subject to arbitration (as set forth in Section 8.08(a)) or escalation (as set forth in Section 8.08(b)) and may be brought in any court that has jurisdiction over the Parties.

 

(d)          Suspension. During the pendency of the dispute resolution processes described in Sections 8.08(a) through (c), Intel will be entitled to suspend performance under this Agreement if and only if Mobileye fails to make timely payment of all amounts due for Services delivered hereunder; provided that Intel will not be permitted to suspend its performance if such failure is cured within thirty (30) days after Mobileye is notified of such failure to pay and a failure to pay (even if cured) does not occur more than three (3) times during any one (1)-year period of the term of this Agreement.

 

Section 8.09      Governing Law. Delaware and United States law governs this Agreement and any dispute arising out of or relating to it without regard to conflict of laws principles. The Parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (1980).

 

Section 8.10      Severability. If any terms or other provision of this Agreement or the Schedules hereto shall be determined by a court, administrative agency or arbitrator to be invalid, illegal or unenforceable, such invalidity or unenforceability shall not render the entire Agreement invalid. Rather, this Agreement shall be construed as if not containing the particular invalid, illegal or unenforceable provision, and all other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either Party. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent permitted under applicable law.

 

Section 8.11      No Third-Party Beneficiary. Except as expressly set forth herein with respect to Affiliates of the Parties or with respect to Section 4.04, none of the provisions of this Agreement shall be for the benefit of or enforceable by any third party, including any creditor of any Person and no such third party shall obtain any right under any provision of this Agreement or shall by reasons of any such provision make any claim in respect of any Liability (or otherwise) against either Party hereto.

 

Section 8.12      Amendment. This Agreement may only be amended by a written agreement executed by both Parties hereto.

 

 

Section 8.13      Counterparts. This Agreement may be executed in one or more counterparts="https://cdn.kscope.io/b62db10377642608fc786f8ac2e4d833-, and by any of the Parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by .pdf, .tif, .gif" or similar attachment to electronic mail shall be as effective as delivery of a manually executed counterpart of this Agreement.

 

Section 8.14      Authority. Each of the Parties represent to the other Party that (a) it has the corporate or other requisite power and authority to execute, deliver and perform this Agreement, (b) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate or other actions, (c) it has duly and validly executed and delivered this Agreement, and (d) this Agreement is its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equity principles.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their duly authorized representatives.

 

	INTEL CORPORATION
	By:
	Name:
	Title:
	Mobileye GLOBAL Inc.
	By:
	Name:
	Title:

 

[Administrative Services Agreement Signature Page]

 

 

Exhibit 10.4

 

EMPLOYEE MATTERS AGREEMENT

 

BETWEEN INTEL CORPORATION AND

 

MOBILEYE GLOBAL INC.

 

 

EMPLOYEE MATTERS AGREEMENT

 

This EMPLOYEE MATTERS AGREEMENT, dated as of June [__], 2022, is between Intel Corporation, a Delaware corporation (“Intel”), and Mobileye Global Inc., a Delaware corporation (“Mobileye,” with each of Intel and Mobileye a “Party,” and together, the “Parties”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Master Transaction Agreement.

 

WHEREAS, Intel is, through direct and indirect wholly owned subsidiaries, the beneficial owner of all the issued and outstanding common stock of Mobileye;

 

WHEREAS Mobileye is engaged in the business of the development and deployment of advanced driver assistance systems and autonomous driving technologies and solutions, as more completely described in the IPO Registration Statement;

 

WHEREAS, Intel and Mobileye currently contemplate that Mobileye will consummate an IPO pursuant to the IPO Registration Statement;

 

WHEREAS, in furtherance of the foregoing, Intel and Mobileye have entered into a Master Transaction Agreement, dated as of __________, 2022 (the “Master Transaction Agreement”), and other specific agreements that will govern certain matters relating to the IPO and the relationship of Intel, Mobileye, and their respective Affiliated Companies following the IPO; and

 

WHEREAS, Intel and Mobileye have agreed to provide for the allocation between them of assets, liabilities, and responsibilities with respect to certain employees and employee compensation and benefit plans, programs and matters.

 

NOW, THEREFORE, in consideration of the foregoing and the terms, conditions, covenants and provisions of this Agreement, Intel and Mobileye mutually covenant and agree as follows:

 

ARTICLE I

 

definitions

 

For purposes of this Agreement the following terms shall have the meanings set forth in this Section 1. Capitalized terms used herein but not defined shall have the meaning set forth in the Master Transaction Agreement:

 

1.1

“Agreement” means this Employee Matters Agreement.

 

1.2

“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor federal income tax law, and the regulations promulgated thereunder.

 

1.3

“Employee Records” means all personnel files of the Mobileye Transfer Employees other than any performance-related information related to the Mobileye Transfer Employees (whether included or retained outside of each such individual’s personnel files).

 

 

1.4

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time and the regulations promulgated thereunder.

 

1.5

“Former Intel Employee” means any (a) Mobileye Offer Employee or (b) Mobileye Transfer Employee who does not object to the transfer of employment to Mobileye Germany GmbH in accordance with applicable law.

 

1.6

“Germany” means the Federal Republic of Germany.

 

1.7

“Immigration Rights” means the rights, duties and Liabilities of the Intel Group, Moovit App Global Ltd. or Moovit, Inc. (a) in connection with the submission of petitions to the United States Citizenship and Immigration Service prior to the Mobileye Start Date requesting the grant of employment-based non-immigrant and immigrant visa benefits on behalf of Former Intel Employees who are foreign nationals working in the United States, (b) from and after the Mobileye Start Date relating to the immigration status of the Former Intel Employees and (c) in regards to all immigration-related rights, duties, and Liabilities of Moovit App Global Ltd., Moovit, Inc. or its or their Subsidiaries regardless of when arising.

 

1.8

“Intel” is defined in the recitals to this Agreement.

 

1.9

“Intel Aligned Employee” means any individual whose name is set forth on Schedule 1.9 hereto.

 

1.10

“Intel Employee” means any individual who is either actively employed by or then on a leave of absence from Intel or an Intel Entity, but does not include any Former Intel Employee.

 

1.11

“Intel Entity” means any entity that is, at the time relevant to the applicable provision of this Agreement, an Affiliated Company of Intel, except that the term “Intel Entity” shall not include Mobileye or a Mobileye Entity.

 

1.12

“Intel Plan” means all employee benefit plans (as defined in Section 3(3) of ERISA, whether or not such plans are subject to ERISA) and all compensation, bonus, stock option, stock purchase, restricted stock, equity, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, gratuity, termination indemnity or other benefit plans, programs, policies, practices, contracts, agreements or arrangements, whether collective or individually agreed, and all employment, consulting, termination, severance, savings plans, profit sharing or other contracts or agreements with or covering (including eligibility to participate) any Intel Employee, to which any Intel Employee and an Intel Entity are parties or which are maintained, contributed to or sponsored by an Intel Entity for the benefit of any current or former employees of Intel or an Intel Entity (or the dependent or beneficiary thereof), or with respect to which Intel or any Intel Entity has or may have any Liability or obligation with respect to current or former employee of an Intel Entity.

 

1.13

“Intel 401(k) Plan” means the Intel Corporation 401(k) Savings Plan.

 

 

1.14

“Mobileye Employee” means any individual who, as of the IPO Date, is either actively employed by or then on a leave of absence from Mobileye or a Mobileye Entity.

 

1.15

“Mobileye Entity” means Mobileye and any subsidiary of Mobileye, including, without limitation, Moovit App Global Ltd., Moovit, Inc. or its or their subsidiaries.

 

1.16

“Mobileye Offer Employee” means any Intel Aligned Employee who was or is offered employment or an engagement by a Mobileye Entity in connection with the transactions contemplated by the Master Transaction Agreement and the IPO who accepted or accepts such offer of employment or engagement and has commenced or commences employment or an engagement with a Mobileye Entity.

 

1.17

“Mobileye Plan” means all employee benefit plans (as defined in Section 3(3) of ERISA, whether or not such plans are subject to ERISA) and all compensation, bonus, stock option, stock purchase, restricted stock, equity, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, gratuity, termination indemnity or other benefit plans, programs, policies, practices, contracts, agreements or arrangements, whether collective or individually agreed, and all employment, consulting, termination, severance, savings plans, profit sharing or other contracts or agreements with or covering (including eligibility to participate) any Mobileye Employee, to which any Mobileye Employee and a Mobileye Entity are parties or which are maintained, contributed to or sponsored by a Mobileye Entity for the benefit of any current or former employees of Mobileye or a Mobileye Entity (or the dependent or beneficiary thereof), or with respect to which Mobileye or any Mobileye Entity has or may have any Liability or obligation with respect to current or former employee of a Mobileye Entity.

 

1.18

“Mobileye Start Date” means the date on which a Former Intel Employee became or becomes employed or engaged by a Mobileye Entity.

 

1.19

“Mobileye Transfer Employee” means any Intel Aligned Employee located in Germany whose employment has transferred automatically or will transfer automatically, by operation of law pursuant to section 613a of the German Civil Code, to Mobileye Germany GmbH, in connection with the transactions contemplated by the IPO, subject to the respective employee’s right to object to the transfer of his or her employment. For the avoidance of doubt, Mobileye Transfer Employees shall not include any such Intel Aligned Employee who objected or objects to his or her transfer of employment to Mobileye Germany GmbH.

 

1.20

“Other Intel Employee” means any individual whose name is set forth on Schedule 1.20 hereto, which as of the date hereof includes eight (8) employees in the aggregate currently located in China, France, Israel, Italy, Malaysia and the United States, as such list may be amended from time to time by mutual agreement of the Parties.

 

1.21

“Participating Company” means (a) Intel, (b) any Person (other than an individual) that Intel has approved as a participating employer or sponsor, and which is participating in an Intel Plan, and (c) any Person (other than an individual) which, by the terms of such plan, participates in such Intel Plan.

 

1.22

“Personal Data” means information that (a) identifies or can be used to identify an individual (including names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers) or (b) can be used to authenticate an individual (including employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report information, biometric or health data, answers to security questions and other personal identifiers).

 

 

1.23

“Processing” means, with respect to Personal Data, acquisition, access, collection, use, handling, storage, maintenance, protection, retention, disclosure, transfer, destruction or disposal.

 

1.24

“Stock Compensation Recharge Agreement” means that certain stock compensation recharge agreement between Intel and certain Affiliated Companies of Intel, including the Mobileye Entities.

 

ARTICLE II

 

GENERAL PRINCIPLES

 

2.1

Conveyance of Employee Records. On the terms and subject to the conditions set forth in this Agreement, Intel shall assign, transfer, convey and deliver, and shall cause any other Intel Entity to assign, transfer, convey and deliver, all right, title and interest in and to the Employee Records, to the extent permitted by applicable law, to Mobileye or any other Mobileye Entity designated by Mobileye for such transfer; provided, however, that Intel shall be permitted to retain copies (or, where required by applicable law, originals) of all personnel, employee compensation, medical and benefits and labor relations records constituting Employee Records to the extent an Intel Entity is required or allowed by applicable law to retain such information.

 

2.2

Assumption and Retention of Liabilities by Mobileye. Except as otherwise explicitly provided herein, Mobileye shall retain or assume and agree to pay, perform, fulfill, and discharge, as the case may be, (a) all Liabilities and obligations under Mobileye Plans regardless of when arising or accrued, (b) all employment, service and termination-related Liabilities and obligations with respect to (i) all Mobileye Transfer Employees (and their dependents and beneficiaries) for all periods of employment with an Intel Entity or a Mobileye Entity, (ii) all Mobileye Offer Employees in jurisdictions other than China (and their dependents and beneficiaries) for all periods of employment or engagement with a Mobileye Entity commencing on the applicable Mobileye Start Date, (iii) all Mobileye Offer Employees in China (and their dependents and beneficiaries) (A) for all periods of employment or engagement with an Intel Entity or a Mobileye Entity in regards to recognizing continuity of service for purposes of statutory severance (to the extent an employee is entitled to such severance payment on a per case basis), provided that such employee shall not receive a duplication of benefits in connection with the applicable Mobileye Start Date and (B) for all periods of employment or engagement with a Mobileye Entity commencing on the applicable Mobileye Start Date in regards to all other Liabilities or obligations, (iv) all employees of Mobileye or a Mobileye Entity who are not Former Intel Employees (and their dependents and beneficiaries) and all former employees of Mobileye or a Mobileye Entity (and their dependents and beneficiaries) for all periods of employment with Mobileye or a Mobileye Entity, and (v) any Person who is, or was, an independent contractor, temporary employee, temporary service worker, consultant, freelancer, agency employee, leased employee, on-call worker, incidental worker, or non-payroll worker or in any other similar direct contractual relationship with Mobileye or a Mobileye Entity for all periods of employment or engagement with a Mobileye Entity, and (c) all Immigration Rights to the extent permitted by applicable law. Notwithstanding the foregoing, Section 2.2(b) shall not apply to any former employee of an Intel Entity who becomes employed by a Mobileye Entity, unless (x) such employee is listed as an Intel Aligned Employee on Schedule 1.9 hereto as of the date of this Agreement or (y) the Parties mutually agree (such agreement not to be unreasonably withheld, conditioned or delayed) to add such employee to the list of Other Intel Employees on Schedule 1.20 hereto following the date of this Agreement.

 

 

2.3

Assumption and Retention of Liabilities by Intel. Except as otherwise explicitly provided herein, Intel shall retain and agree to pay, perform, fulfill and discharge, as the case may be (a) all Liabilities and obligations under the Intel Plans regardless of when arising or accrued, and (b) all employment, service and termination-related Liabilities and obligations with respect to (i) all Intel Employees (and their dependents and beneficiaries), (ii) all former employees of Intel or an Intel Entity (and their dependents and beneficiaries), other than any Liabilities or obligations assumed by Mobileye or a Mobileye Entity pursuant to Section 2.2 above, (iii) any Other Intel Employee (and their dependents and beneficiaries) for all periods of employment prior to such individual’s Mobileye Start Date (to the extent applicable) except as otherwise provided in Section 2.2 above with respect to Mobileye Offer Employees in China (to the extent such individual receives and accepts an offer from Mobileye) and (iv) any Person who is, or was, an independent contractor, temporary employee, temporary service worker, consultant, freelancer, agency employee, leased employee, on-call worker, incidental worker or non-payroll worker or in any other contractual relationship with Intel or an Intel Entity for all periods of employment or engagement with an Intel Entity, other than any Liabilities or obligations assumed by Mobileye or a Mobileye Entity pursuant to the Administrative Services Agreement or any another agreement between the Parties. Intel acknowledges and agrees that it has paid to each Mobileye Offer Employee all amounts owed to such employee from Intel as of his or her Mobileye Start Date pursuant to the employee’s Intel employment contract, an Intel Plan or applicable law, including amounts, if any, relating to severance (excluding Mobileye Offer Employees in China), accrued pension and accrued vacation.

 

2.4

Assumption and Retention of Liabilities Related to Actions. In the event of any actual or threatened Action brought by or on behalf of any Former Intel Employee alleging a violation of any applicable law governing employment based on acts or omissions that occurred prior to and after the applicable Mobileye Start Date, the portion of Liability in respect of the period prior to the applicable Mobileye Start Date will be assumed by Intel, and the portion of Liability in respect of the period on and after the applicable Mobileye Start Date will be assumed by Mobileye; provided, however, that Intel shall be liable solely for such Liabilities as calculated on the basis of the existing Liability as would have been payable at the applicable Mobileye Start Date, including, without limitation for the purpose of calculating such Liabilities, taking into account the impacted Employees’ level of compensation and length of service solely as of the applicable Mobileye Start Date and not taking into account any subsequent increases in compensation or length of service. Each Party shall promptly notify the other Party of any actual or threatened Action described herein. Unless mutually agreed otherwise by the Parties, on a case-by-case basis, Intel shall have the right to control the defense of any Action described herein, at its own cost, risk and expense, with counsel reasonably satisfactory to Intel for so long as the Intel Group holds in any manner at least fifty percent (50%) of the Shares. In the event the Intel Group no longer holds in any manner at least fifty percent (50%) of the Shares, the Parties shall mutually agree on whether Intel or Mobileye will have the right to control the defense of an Action at such Party’s own cost, risk and expense and with counsel reasonably satisfactory to such Party; provided that, if Intel assumes control of the defense of any Action described herein, Intel shall (a) upon Mobileye’s reasonable request, consult with Mobileye with respect to significant matters relating thereto and (b) keep Mobileye reasonably informed of the progress of the defense, potential compromise or settlement of any such Action. Each Party agrees to cooperate with the other Party and its counsel in the defense of any such Action. The Party handling the defense shall be entitled to compromise or settle any such Action, which compromise or settlement shall be made only with the written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed.

 

 

2.5

Former Intel Employees.

 

(a)            Other Intel Employees. No Other Intel Employee shall become an employee of or engaged by Mobileye or a Mobileye Entity unless and until such time as the Parties agree upon the terms and conditions of employment or an engagement with Mobileye or a Mobileye Entity, subject to any rights under applicable law of such Other Intel Employee other than with respect to the Other Intel Employee in row [__] of Schedule 1.20, whose terms and conditions of employment with Mobileye or a Mobileye Entity shall be determined at the sole discretion of Mobileye or a Mobileye Entity, if and as applicable. Unless and until such time as the terms and conditions of employment or an engagement is mutually agreed upon, an Intel Entity will continue to employ (or engage) and compensate the Other Intel Employees as determined by Intel in its sole discretion, and Mobileye or a Mobileye Entity shall continue to compensate Intel for such services in the same manner and to the same extent as immediately prior to the IPO Date, subject to the existing arrangements in effect with respect to such Other Intel Employees as such arrangements may be amended from time to time; provided, however, that nothing herein shall in any way limit or restrict Intel or any other Intel Entity’s right to terminate the employment or engagement of any Other Intel Employee at any time and for any reason.

 

(b)            Mobileye Transfer Employees. The Parties acknowledge and agree that the employment of the Mobileye Transfer Employees did not or will not be terminated, as the case may be, upon the Mobileye Start Date, but rather the rights, powers, duties, Liabilities and obligations of the applicable employing Intel Deutschland GmbH, under the contracts of employment of such employees (except for any Liabilities (i) which are expressly prohibited from transfer under applicable law or (ii) for which it has been agreed with Intel Deutschland GmbH’s company works council (Gesamtbetriebsrat) in connection with the compromise of interests (Interessenausgleich) that they do not transfer and such non-transfer has been accepted by the respective Mobileye Transfer Employee) in force immediately before the Mobileye Start Date shall have the effect as if such contracts were originally agreed with the employing Mobileye Entity, in accordance with applicable laws. Further, the Parties acknowledge and agree that the employment of the Mobileye Transfer Employees transferred to, or will transfer to, Mobileye Germany GmbH effective as of the applicable Mobileye Start Date in accordance with section 613a German Civil Code (Bürgerliches Gesetzbuch, “BGB”).

 

 

(i)

The Parties acknowledge and confirm that (A) Intel Deutschland GmbH has concluded a compromise of interests (Interessenausgleich) with its company works council (Gesamtbetriebsrat) in relation to the separation of the relevant business and the transfer of the Mobileye Transfer Employees from Intel Deutschland GmbH to Mobileye Germany GmbH and (B) an information letter has been prepared in compliance with section 613a para. (5) BGB, approved by the Parties and has been, or will be, duly delivered to all Mobileye Transfer Employees. Mobileye undertakes to ensure that the employment of the Mobileye Transfer Employees will be handled as described in the compromise of interests and in the information letter pursuant to section 613a para. (5) BGB as of and after the Mobileye Start Date.

 

(ii)

Intel hereby agrees to and shall compensate Mobileye, in accordance with the terms and conditions described herein, for Intel Deutschland GmbH pension Liabilities in an amount equal to the value of Intel Deutschland GmbH pension Liabilities, valued as of the Mobileye Start Date in accordance with the accounting principles, mortality rates (if applicable), interest rates and other calculation parameters, as shall be mutually agreed upon between the Parties, taking into account the parameters used by Intel Deutschland GmbH for its most recent annual accounts prior to the Mobileye Start Date. Intel shall provide Mobileye with the relevant valuation within 60 days after the Mobileye Start Date. The compensation shall, within 30 days after the delivery of the valuation, , will be made as mutually agreed upon between the Parties, either by way of a cash payment from Intel to Mobileye or from a trustee acting on behalf of an Intel Entity based on a contractual trust arrangement to Mobileye or to a trustee acting on behalf a Mobileye entity, provided that Intel shall be entitled to request from Mobileye the set-up of one or more contractual trust arrangements with an equivalent level of protection (gleichwertige Sicherung) compared to the contractual trust arrangements in place at the relevant Intel Entity, or in any other method agreed by the Parties. In addition, Intel agrees to and shall compensate Mobileye for all amounts owed to such employee from Intel as of his or her Mobileye Start Date pursuant to the employee’s Intel employment contract, an Intel Plan or applicable law, including without limitation, amounts, if any, relating to severance, and accrued vacation, overtime and flex-time, provided, however, that Intel shall be liable solely up to the existing Liability as would have been payable at the applicable Mobileye Start Date, taking into account for purposes of calculating such Liabilities, any decreases in compensation by Mobileye that decrease the value of the Liabilities and not taking into account any subsequent increases in compensation or the length of service, solely to the extent the impacted employee does not use such accrued vacation, overtime or flex-time prior to the date of their employment termination. The Parties acknowledge and agree that this Section 2.5(c)(ii) is the exclusive remedy with respect to the transferred company pension Liabilities described herein and that no other or additional compensation or indemnification shall be provided by Intel or an Intel Entity with regards thereto.

 

 

(iii)

To the extent Mobileye Transfer Employees have entitlements under direct insurance arrangements (Direktversicherungen) as part of their employment at Intel Deutschland GmbH, the Parties undertake to take all steps necessary in order to transfer such direct insurance arrangement from Intel Deutschland GmbH to Mobileye Germany GmbH with effect as of the Mobileye Start Date with discharging effect for Intel Deutschland GmbH.

 

(c)            Foreign National Employees. Mobileye shall, or shall cause a Mobileye Entity to, employ the Former Intel Employees who are foreign nationals working in the United States under terms and conditions such that Mobileye or the applicable Mobileye Entity will be considered the successor employer for U.S. immigration purposes.

 

(d)            Mobileye Offer Employees in China. Intel agrees to and shall compensate Mobileye for all statutory severance amounts owed to any such Mobileye Offer Employee in China as of his or her Mobileye Start Date pursuant to the employee’s Intel employment contract, an Intel Plan or applicable law, that were not previously paid to such employee; provided, however, Intel shall be liable solely up to the lesser of (a) the existing Liability as would have been payable at the applicable Mobileye Start Date, including, without limitation, for the purpose of calculating such Liabilities, taking into account the impacted employees’ level of compensation and length of service solely as of the applicable Mobileye Start Date and not taking into account any subsequent increases in compensation or length of service and (b) the amount of Liability actually incurred by Mobileye with respect to such employee’s period of employment with an Intel Entity prior to his or her Mobileye Start Date.

 

2.6

Notice and Consultation Obligations. The Parties agree to, and to cause their Affiliated Companies to, cooperate and use reasonable efforts to comply with any and all obligations and requirements under applicable law to notify and/or consult with any Other Intel Employee, Mobileye Transfer Employee, other affected employee or any union, labor organization or works council representing any such individual, if any, in connection with the transactions contemplated by this Agreement, the Master Transaction Agreement and agreements related thereto.

 

2.7

WARN Act. The Parties agree to, and to cause their Affiliated Companies to, cooperate and use reasonable efforts to comply with preparing and delivering any notices required or potentially required pursuant to the Worker Adjustment and Retraining Notification Act of 1988 and any similar state, local or foreign law in connection with the transactions contemplated by this Agreement.

 

 

 

ARTICLE III

 

EQUITY COMPENSATION and OTHER BENEFIT PLAN MATTERS

 

3.1

Intel Equity Awards. All Remaining Intel Awards shall be treated pursuant to the terms of Section 3.8 of the Master Transaction Agreement; provided that the Parties shall continue to be obligated under, and subject to the terms of, the Stock Compensation Recharge Agreement with respect to the Remaining Intel Awards.

 

3.2

Intel Employee Stock Purchase Plan. Intel shall take such actions as are necessary or appropriate to cause Mobileye and each Mobileye Entity to cease to be participating entities in the Intel Corporation 2006 Employee Stock Purchase Plan (the “Intel ESPP”) effective as of the IPO Date and the cash balance in the accounts of all Mobileye Employees shall be administered in accordance with the terms of the Intel ESPP.

 

3.3

Cessation of Active Participation in Intel Plans. Intel shall take such actions as are necessary or appropriate to cause each Former Intel Employee to cease to actively participate in the Intel Plans effective as of the applicable Mobileye Start Date or if provided for under the terms of the applicable Intel Plan, effective as of the end of the month in which the applicable Mobileye Start Date occurs; provided that, any such Former Intel Employee who was an Eligible Employee in the Intel 401(k) Savings Plan immediately prior to their Transfer Date (as the term “Eligible Employee” is defined in the Intel 401(k) Savings Plan) may be eligible to receive from Intel, on its expense the “true-up” Matching Contribution contemplated therein, subject in each case to the terms and conditions of the Intel 401(k) Savings Plan.

 

ARTICLE IV

 

GENERAL AND ADMINISTRATIVE

 

4.1

Sharing of Participant Information. Intel shall cause each applicable Intel Entity to share, and Mobileye shall cause each applicable Mobileye Entity to share, with each other and their respective agents and vendors (and without obtaining releases unless otherwise required by applicable law) all participant information necessary for the efficient and accurate administration of each of the Intel Plans and the Mobileye Plans, provided that the sharing of such information (and the manner in which such information is shared) complies with applicable laws, contractual obligations, self-regulatory standards, or written policies or terms of use of an Intel Entity or a Mobileye Entity which are related to privacy, data protection or the Processing of Personal Data. Intel and Mobileye and their respective authorized agents shall, subject to applicable laws on confidentiality, be given reasonable and timely access to, and may make copies of, all information relating to the subjects of this Agreement in the custody of the other party, to the extent necessary for such administration. Until the consummation of the IPO, all participant information shall be provided in the manner and medium applicable to Participating Companies in the Intel Plans generally, and thereafter until the time at which the Parties subsequently determine, all participant information shall be provided in a manner and medium that are compatible with the data processing systems of Intel as in effect as of the consummation of the IPO, unless otherwise agreed to by Intel and Mobileye.

 

 

4.2

Confidentiality and Proprietary Information. No provision of the Master Transaction Agreement or this Agreement shall be deemed to release any individual for any violation of any agreement or policy pertaining to confidential or proprietary information of any Intel or any of its Affiliated Companies or Mobileye or any of its Affiliated Companies, respectively, or otherwise relieve any individual of his or her obligations under any such agreements or policies.

  

4.3

Non-Termination of Employment; No Third Party Beneficiaries. No provision of this Agreement or the Master Transaction Agreement shall be construed to (a) create any right, or accelerate entitlement, to any compensation or benefit whatsoever on the part of any future, present, or former employee of Intel, an Intel Entity, Mobileye, or a Mobileye Entity under any Intel Plan or Mobileye Plan or otherwise or (b) to be for the benefit of or otherwise enforceable by employee, creditor or any other third party. Without limiting the generality of the foregoing: (x) except as expressly provided in this Agreement, neither the occurrence of the consummation of the IPO nor any termination of the Participating Company status of Mobileye or a Mobileye Entity shall cause any employee to be deemed to have incurred a termination of employment which entitles such individual to the commencement of benefits under any of the Intel Plans; (y) except as expressly provided in this Agreement, nothing in this Agreement shall preclude Mobileye or any Mobileye Entity, at any time after the consummation of the IPO, from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any Mobileye Plan, any benefit under any Mobileye Plan or any trust, insurance policy or funding vehicle related to any Mobileye Plan; and (z) except as expressly provided in this Agreement, nothing in this Agreement shall preclude Intel or any Intel Entity, at any time prior to or after the consummation of the IPO, from amending, merging, modifying, terminating, eliminating, reducing, or otherwise altering in any respect any Intel Plan, any benefit under any Intel Plan or any trust, insurance policy or funding vehicle related to any Intel Plan.

 

4.4

Fiduciary Matters. Intel and Mobileye each acknowledge that actions required to be taken pursuant to this Agreement may 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 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 and shall fully release the other party for any Liabilities imposed on such party pursuant to the provisions of this Agreement by the failure to satisfy any such responsibility.

 

4.5

Consent of Third Parties. If any provision of this Agreement is dependent on the consent of any third party (such as a vendor) and such consent is withheld, Intel and Mobileye shall use commercially reasonable efforts to implement the applicable provisions of this Agreement to the full extent practicable. If any provision of this Agreement cannot be implemented due to the failure of such third party to consent, Intel and Mobileye shall negotiate in good faith to implement the provision in a mutually satisfactory manner. The phrase “commercially reasonable efforts” as used herein shall not be construed to require the incurrence of any non-routine or unreasonable expense or liability or the waiver of any right.

 

4.6

Cooperation. The Parties agree to, and to cause their Affiliated Companies to, cooperate and use reasonable efforts to promptly (a) comply with all requirements of this Agreement, ERISA, the Code and other laws which may be applicable to the matters addressed herein, and (b) subject to applicable law, provide each other with such information reasonably requested by the other party to assist the other party in administering its plans and programs, pursuing or defending any actual or threatened Action relating to or otherwise involving any Former Intel Employee, and complying with applicable law and regulations and the terms of this Agreement.

 

 

ARTICLE V

 

MISCELLANEOUS

 

5.1

Limitation of Liability. IN NO EVENT SHALL ANY MEMBER OF THE INTEL GROUP OR MOBILEYE GROUP BE LIABLE TO ANY OTHER MEMBER OF THE INTEL GROUP OR MOBILEYE GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY'S INDEMNIFICATION OBLIGATIONS FOR LIABILITIES AS SET FORTH IN THE MASTER TRANSACTION AGREEMENT OR IN ANY INTER-COMPANY AGREEMENT.

 

5.2

Entire Agreement. This Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof and thereof.

 

5.3

Governing Law and Jurisdiction. This Agreement, including the validity hereof and the rights and obligations of the Parties hereunder, shall be construed in accordance with and shall be governed by the laws of State of Delaware applicable to contracts made and to be performed entirely in such State (without giving effect to the conflicts of laws provisions thereof).

 

5.4

Termination; Amendment. This Agreement may be terminated or amended by and in the sole discretion of Intel, without the approval of Mobileye, at any time prior to the IPO. This Agreement may be terminated or amended at any time after such date by mutual consent of Intel and Mobileye, evidenced by an instrument in writing signed on behalf of each of the Parties. In the event of termination pursuant to this Section 5.5, no Party shall have any Liability of any kind to the other Party, except for any rights that will have accrued to the benefit of a Party prior to such termination.

 

 

5.5

Notices. All notices, requests, demands and other communications under this Agreement shall, except to the extent expressly provided to be oral, be in writing and shall be deemed to have been duly given or made as follows: (a) if sent by registered or certified mail return receipt requested, upon receipt; (b) if sent designated for overnight delivery by nationally recognized overnight air courier (such as DHL or Federal Express), upon receipt of proof of delivery on a Business Day before 5:00 p.m. in the time zone of the receiving Party, otherwise upon the following Business Day after receipt of proof of delivery; (c) if sent by e-mail including by a .pdf, .tif, .gif, .jpeg or similar electronic attachment on a Business Day before 5:00 p.m. in the time zone of the receiving Party, when transmitted; (d) if sent by e-mail including by a .pdf, .tif, .gif, .jpeg or similar electronic attachment on a day other than a Business Day or after 5:00 p.m. in the time zone of the receiving Party, on the following Business Day; and (e) if otherwise actually personally delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the address set forth below, or to such other address as any Party shall provide by like notice to the other Parties:

 

if to Intel:

 

Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95054

 

Attention: General Counsel

 

with a copy to (which copy shall not constitute notice):

 

[●]
Email: ****

 

[●]
Email: ****

 

if to Mobileye:

 

Mobileye Global Inc.
c/o Mobileye B.V.
Har Hotzvim, 13 Hartom Street
P.O. Box 45157 Jerusalem 9777513, Israel

 

Attention: General Counsel

 

5.6

Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement.

 

5.7

Binding Effect; Assignment. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective legal representatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement. This Agreement may be enforced separately by each member of the Intel Group and each member of the Mobileye Group. Neither party may assign this Agreement or any rights or obligations hereunder, without the prior written consent of the other party, and any such assignment shall be void; provided, however, either party may assign this Agreement to a successor entity in conjunction with such party’s reincorporation in another jurisdiction or into another business form.

 

 

5.8

Severability. If any term or other provision of this Agreement or the Schedules attached hereto is determined by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent possible.

 

5.9

Failure or Indulgence not Waiver; Remedies Cumulative. No failure or delay on the part of either party hereto in the exercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All rights and remedies existing under this Agreement or the Schedules attached hereto are cumulative to, and not exclusive of, any rights or remedies otherwise available.

 

5.10

Authority. Each of the Parties hereto represents to the other that (a) it has the corporate or other requisite power and authority to execute, deliver and perform this Agreement, (b) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate or other actions, (c) it has duly and validly executed and delivered this Agreement, and (d) this Agreement is a legal, valid and binding obligation, enforceable against it in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equity principles.

 

5.11

Interpretation. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The headings contained in this Agreement, in any Schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term used in any Schedule but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. For the purposes of this Agreement: (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms “Article,” “Section,” “Schedule,” “Exhibit” and paragraph are references to the Articles, Sections, Schedules, Exhibits and paragraphs to or of this Agreement unless otherwise specified; (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (iv) references to “$” shall mean U.S. dollars; (v) the word “including” and words of similar import when used in this Agreement shall mean “including without limitation,” unless otherwise specified; (vi) the word “or” shall not be exclusive; (vii) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not (unless the context demands otherwise) mean simply “if”; (viii) references to “written” or “in writing” include in electronic form; (ix) provisions shall apply, when appropriate, to successive events and transactions; (x) Mobileye and Intel have each participated in the negotiation and drafting of this Agreement, and, if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties hereto and no presumption or burden of proof shall arise favoring or burdening any Party by virtue of the authorship of any of the provisions in this Agreement; (xi) a reference to any Person includes such Person’s successors and permitted assigns; (xii) any reference to “days” means calendar days unless Business Days are expressly specified; (xiii) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded; (xiv) unless otherwise stated in this Agreement, references to any contract are to that contract as amended, modified or supplemented from time to time in accordance with the terms thereof; (xv) the word “shall” shall have the same meaning as the word “will”; (xvi) the word “any” shall mean “any and all”; and (xvii) the term “ordinary course of business” (or any phrase of similar import) shall mean “ordinary course of business, consistent with past practice.”

 

 

IN WITNESS WHEREOF, the Parties have caused this Employee Matters Agreement to be duly executed as of the day and year first above written.

 

	INTEL CORPORATION
	Name:
	Title:
	MOBILEYE GLOBAL INC.
	Name:
	Title:

 

 

Schedule 1.9

 

List of Intel Aligned Employees

 

 

Schedule 1.20

 

List of Other Intel Employees

 

 

Exhibit 10.5

 

TECHNOLOGY AND SERVICES AGREEMENT

 

This Technology and Services Agreement (the “Agreement”) is entered into as of the date of the last signature to it and is effective as of [●] (“Effective Date”) between Intel Corporation, a company established and existing under the laws of Delaware and the United States (“Intel”), and Mobileye Vision Technologies Ltd., a company established and existing under the laws of the State of Israel (“Mobileye”). Intel and Mobileye are each referred to in this Agreement as a “party” and, collectively, the “parties.”

 

BACKGROUND

 

The parties contemplate that Mobileye Global Inc., the indirect parent of Mobileye, will make an initial public offering of its Class A common stock pursuant to a Registration Statement on Form S-1 under the Securities Act of 1933, as amended.

 

After this initial public offering, the parties will continue to collaborate on technical development projects under the terms of this Agreement. Intel will also provide additional services to Mobileye and its Affiliates, including for payment.

 

This Agreement provides a framework for, and describes how the parties will allocate ownership of new technology resulting from, these technical development projects and services. It will replace the Mobileye and Intel Development and Reimbursement Agreement dated 3 December 2018 (“DRA”) which will be terminated by separate agreement executed on or around the date of execution of this Agreement. Projects for development and manufacturing relating to LiDAR will be done by the parties solely under the LiDAR Product Collaboration Agreement, executed on or around the date of execution of this Agreement (“LiDAR Product Collaboration Agreement”).

 

Mobileye and its Affiliates also have hired certain former Intel radar engineers. Intel is licensing intellectual property rights to certain radar technology, including the rights to certain technology created by those engineers, to Mobileye to allow Mobileye to work on Mobileye Sensor Products as detailed herein.

 

ATTACHMENTS

 

The following attachments are incorporated into this Agreement.

 

Schedule 1

Definitions

 

Exhibit A

SOW Template

 

Exhibit B

Invention Tracking Document Information

 

Exhibit C

Intel Lidar and Radar Technology

 

Exhibit D

Intel Fundamental Technology Areas

 

Exhibit E

Lidar and Radar Patents

 

Exhibit F

Patent Litigation Defense Assistance

 

Exhibit G

Radar Patents

 

Exhibit H

BSR Specification

 

 

AGREEMENT

 

The parties agree as follows:

 

1.

Definitions. Capitalized terms used in this Agreement not otherwise defined above or in Sections 2 to 18 below, are defined in Schedule 1.

 

2.

Collaborative Work and Services.

 

2.1.

Collaborative work. The parties will describe the collaborative projects in one or more mutually agreed statements of work, which must be signed by the authorized representatives of each party, and substantially in the form of Exhibit A.

 

2.2.

Services. The SOW will also include the Services and Deliverables to be provided by each party. Intel also may license software or loan hardware related to the Services to Mobileye and its Affiliates under separate written agreements.

 

2.3.

Performance Standards. Each party will use Reasonable Efforts to perform the work and complete their obligations under all SOWs according to prescribed milestones or other time schedules in each SOW.

 

2.4.

Third-Party Licenses for Services. If a party is required to license third-party technology to perform its Services, it will use Reasonable Efforts to obtain such third-party licenses. The party receiving those Services will reimburse the licensing party for any costs and expenses for those third-party licenses that are agreed between the parties. A party is not required to perform Services to the extent that it is unable to acquire any necessary third-party licenses using Reasonable Efforts or if reimbursement of the costs and expenses for the necessary third party license has not been agreed by the parties.

 

2.5.

Third Party Licenses.

 

2.5.1.

Mobileye acknowledges Intel is not providing Mobileye with a right to use or a license to third-party Technology under this Agreement, unless specified in an SOW, and that it is Mobileye’s responsibility to obtain appropriate licenses or agreements from third parties directly for its use.

 

2.5.2.

Notwithstanding Section 2.5.1 and Section 2.4, Intel may from time to time have in place agreements with third party licensors that allow its Subsidiaries to use the licensed Technology at no additional cost to Intel, and Intel may make such third-party licensed Technology available to Mobileye (so long as Mobileye is an Intel Subsidiary) for the purposes of this Agreement.

 

2.6.

Third Party License Compliance. If Intel provides third-party licensed Technology, Mobileye will comply with the third-party license requirements. Mobileye will execute separate agreements as necessary to comply with such third-party licenses.

 

2.7.

Facility Access. Each party will grant, and cause its Affiliates to grant, (in each case, in its sole discretion), the other party reasonable access to their facilities that are reasonably necessary for the performance of the other party’s obligations under this Agreement.

 

 

2.8.

Personnel. Each party has sole discretion in hiring and assigning its Personnel. Prior to performing any work in connection with this Agreement, all Personnel must sign a confidentiality agreement at least as restrictive as the CNDA. Each party is responsible for:

 

2.8.1.

the acts and omissions of its Personnel while performing work in connection with this Agreement, including any unauthorized use or disclosure of Confidential Information;

 

2.8.2.

compensating its Personnel;

 

2.8.3.

supervising the performance of its Personnel; and

 

2.8.4.

ensuring that its Personnel abide by all facility policies and procedures of the other party.

 

2.9.

Subcontractors.

 

2.9.1.

Each party may permit its subcontractors (including OEMs) and agents (provided they are bound by equivalent confidentiality undertakings) to:

 

(a)

do work on its behalf under this Agreement; and

 

(b)

exercise, on its behalf, its rights under any license granted under this Agreement.

 

2.9.2.

Each party will remain responsible for all acts and omissions of its subcontractors and agents as if they were its own.

 

2.10.

Intel Aligned Employees.

 

2.10.1.

The Intel Aligned Employees may perform work for Mobileye under an SOW, and the costs of the Intel Aligned Employees will be paid for in accordance with the provisions agreed in an SOW.

 

2.10.2.

For the purposes of allocation of new Project IPR under Section 5 of this Agreement, Intel Aligned Employee-Created Technology (as defined in this Section 2.10) will be deemed to have been Created by Mobileye. For all other purposes (such as, work not done under an SOW, continued employment, compensation, and benefits, etc.), Intel Aligned Employees are Intel Personnel.

 

2.10.3.

To effectuate the allocation of Project IPR as set forth in this Section 2.10, Intel, on behalf of itself and its Intel Aligned Employees hereby assigns and agrees to assign to Mobileye the Intel Aligned Employee IPR to the Intel Aligned Employee-Created Technology, without any duty of accounting, and without any duty to obtain Intel’s consent or to pay any royalties to Intel to exploit, license, or enforce such rights. Final ownership of Project IPR to Project Technology created by Intel Aligned Employees will be allocated under Section 5. In this Section 2.10, “Intel Aligned Employee IPR” means the Project IPR that Intel owns solely by virtue of its employment agreements with the Intel Aligned Employees, and “Intel Aligned Employee-Created Technology” means Project Technology (other than Intel Radar Technology) created by the Intel Aligned Employees to Mobileye while assigned to work for Mobileye.

 

 

3.

Payment Terms.

 

3.1.

Invoicing. Intel may invoice Mobileye for the Fees and other costs payable under this Agreement on or at any time after the date Intel begins provision of the Services.

 

3.2.

Payment. Unless otherwise set out in an SOW, all amounts invoiced by Intel are due paid at Intel’s bank within 30 days from the date of invoice, without any offset, counterclaim, holdback, or deduction.

 

4.

Ownership of Background IPR and Property.

 

4.1.

Background IPR and DRA. Other than as effected by Section 9.3, nothing in this Agreement:

 

4.1.1.

assigns or transfers any ownership interest in a party’s Background IPR; or

 

4.1.2.

affects any rights that accrued to a party under the DRA prior to its termination.

 

4.2.

Physical property. Nothing in this Agreement transfers a party’s ownership of any physical property that it discloses or provides to the other party under this Agreement.

 

5.     Project Technology IPR Allocation.

 

5.1.

Intel Core Technology. Intel solely owns all Project IPR to Intel Core Technology.

 

5.1.1.

Assignment. Mobileye, on behalf of itself, its Affiliates, and its Personnel, hereby assigns and agrees to assign to Intel all its and their right, title, and interest to Project IPR to Intel Core Technology without any duty of accounting, and without any duty to obtain the consent of or to pay any royalties to Mobileye or its Affiliates to exploit, license, or enforce such rights. This assignment does not include any Mobileye Background IPR. Section 5.3 provides specific circumstances pursuant to which Intel will re-assign to Mobileye certain Project IPR that Mobileye initially assigns to Intel under this Section 5.1.1.

 

5.1.2.

License to Non-Assignable IPR. If Mobileye, its Affiliates, or its Personnel own Project IPR to Intel Core Technology that cannot be assigned for any reason to Intel, Mobileye, on behalf of itself, its Affiliates, and its Personnel, hereby grant to Intel and its Affiliates, a world-wide, perpetual, irrevocable, non-terminable, royalty-free, fully paid-up, exclusive (including as to Mobileye), sublicensable, transferable license under its and their unassigned Project IPR to Intel Core Technology to use, disclose, modify, distribute, perform, display, make, have made, license, offer to sell, sell, import, and otherwise dispose of Intel Core Technology.

 

5.2.

General Project Technology.

 

5.2.1.

Mobileye Solely-Created General Project Technology. Mobileye solely owns all Project IPR to General Project Technology that is Solely-Created by its Personnel.

 

 

5.2.2.

Intel Solely-Created General Project Technology. Intel solely owns all Project IPR to General Project Technology that is Solely-Created by its Personnel. Section 5.3 provides specific circumstances pursuant to which Intel will re-assign to Mobileye certain Project IPR that Mobileye initially assigns to Intel under this Section 5.2.2.

 

5.2.3.

Ownership of General Project Technology Patent Rights. The parties will meet as necessary to allocate ownership of Patent Rights to Jointly-Conceived Project Inventions that are General Project Technology by the following selection process. Upon submission of an Invention disclosure for a Jointly-Conceived Project Invention that is General Project Technology, the parties will determine which party will select the first Jointly-Conceived Project Invention. The parties will alternate turns to select subsequent Jointly-Conceived Project Inventions that are General Project Technology until all are selected, such selections to be completed by no later than 6 months after the end of the Term.

 

5.2.4.

Assignment. The Non-Selecting Party, on behalf of itself, its Affiliates and its Personnel, hereby assigns and agrees to assign to the Selecting Party all its and their right, title, and interest in the Project Patent Rights in the Project Invention selected by the Selecting Party under Section 5.2.3, without any duty of accounting, and without any duty to obtain the Non-Selecting Party’s consent or to pay any royalties to the Non-Selecting Party to exploit, license, or enforce such rights. The Selecting Party will exclusively own all Project Patent Rights in the Project Invention selected under Section 5.2.3.

 

5.2.5.

Ownership of Other General Project IPR. The parties will jointly own the Copyrights and Trade Secret Rights in General Project Technology that is not Solely-Created. Each party hereby assigns (on behalf of itself and its Affiliates and Personnel) to the other party an equal, undivided ownership interest in the Copyrights and Trade Secret Rights in works that are General Project Technology that are not Solely-Created.

 

5.2.6.

Rights Regarding General Project Technology Not Solely-Created. Subject to the confidentiality restrictions in Section 7.11, regardless of the ownership of the Trade Secret Rights and Copyrights under national law, each party, may use, modify, disclose, reproduce, perform, display, disclose, and distribute General Project Technology that is not Solely-Created as if the Trade Secret Rights and Copyrights in that General Project Technology were solely owned by that party, without any duty of accounting and without any duty to obtain the other party’s consent or to pay any compensation to the other party in order to exploit, license, assign, or enforce those rights.

 

 

	5.3.	Core Mobileye Technology.

5.3.1.

Identification of Technology. The parties may from time to time, with the written approval of the Director of Intellectual Property for each party, identify in an SOW (in the form set out in paragraph 14 of Exhibit A):

 

(a)

specific Mobileye Background Technology which will be modified or improved under the SOW; and

 

(b)

the Project Technology that is the modification or improvement to the specific Mobileye Background Technology, (the “Mobileye Modification”), to which Project Technology Intel will assign certain Project IPR in accordance with Section 5.3.2.

 

5.3.2.

Agreement to assign. Intel hereby assigns and agrees to assign, on behalf of itself and its Affiliates and its Personnel, to Mobileye (without any duty to obtain the consent of or to pay any royalties to Intel or its Affiliates to exploit, license, or enforce such rights) the specific Project IPR (identified in paragraph 14 of the SOW) to the Mobileye Modification.

 

5.3.3.

Amendment of SOWs. At any time during the Term and for one year after termination, the parties may with the approval of the Director of Intellectual Property for each party, agree to amend an SOW in accordance with Section 18.1 to add Mobileye Modifications to the SOW.

 

6.

Disputed Technology. If there is a dispute about allocation of Project IPR, the parties will escalate promptly to senior management for resolution. If the dispute is not resolved within 60 days, the parties will engage in the dispute resolution process in Section 15.

 

7.     Patent Filing Cooperation.

 

7.1.

Warranty. Each party represents and warrants that its Personnel have assigned, and are obligated to assign, all the Personnel’s right, title, and interest in all Project IPR to the entity that employs the Personnel. Mobileye warrants that its Personnel have assigned, and are obligated to assign, all their right, title, and interest in all IPR to Transitional Radar Technology and Intel Radar Technology to Mobileye.

 

7.2.

Disclosure of Agreement Inventions. Upon submission of any Invention disclosure for an Agreement Invention by an inventor into a party’s patent docketing system, the party will disclose it in writing to the other party. The parties will track all Agreement Inventions, including Invention Information, in an invention tracking document that substantially contains the information listed in Exhibit B.

 

7.3.

Ownership Allocation. Before either party files any patent application for a Project Invention, the parties’ patent attorneys will meet and agree on the party that owns each Project Invention and the Patent Rights therein, considering the assignment of ownership under this Agreement, the procedures in Section 7.4 for Re-allocated Project Inventions, and Abandoned Project Inventions (as defined in Section 7.5).

 

7.4.

Re-Allocated Project Inventions. Notwithstanding the allocation of Project Patent Rights in Section 5, the parties’ patent attorneys may meet and, with the written approval of the Director of Patents for each party, agree to change ownership of Patent Rights to specific Project Inventions, each Project Invention on which ownership is changing becoming a Re-allocated Project Invention. The factors the parties will consider in identifying a Re-allocated Project Invention include (a) one party’s decision not to file a patent application on a Project Invention that it owns in accordance with the allocations and selections of Patent Rights to Project Inventions under this Agreement; (b) whether the Project Invention is specific for one party’s product as compared with the other party’s products; and (c) whether the Project Invention is more strategic for one party’s business as compared to the other party’s business. The patent attorneys will indicate the change of ownership of the Patent Rights to the Re-allocated Project Inventions on the Invention Tracking Document. Except for the identification of ownership of the Re-allocated Project Inventions, the Invention Tracking Document will not be legally binding on the parties.

 

 

7.5.

Abandoned Non-Provisional Patent Applications.

 

7.5.1.

Mobileye Abandoned Applications. If Mobileye decides not to file a non-provisional application claiming priority of a provisional application for any Project Invention (“Abandoned Project Invention”), Intel will own the Patent Rights to the Abandoned Project Invention and may file a non-provisional patent application for the Abandoned Project Invention.

 

7.5.2.

Intel Abandoned Applications. If Intel decides not to file a non-provisional application claiming priority of a provisional application for any Project Invention that is not within the Excluded Rights, (“Permitted Abandoned Invention”) then Intel may, with the written approval of the Director of the Intel Patent Group, agree to assign the Project Patent Rights to the Permitted Abandoned Invention to Mobileye, without any duty of accounting, and without any duty to obtain Intel’s or its Affiliates’ consent or to pay any royalties to Intel to exploit, license or enforce such rights.

 

7.6.

Intel Patent Assignment. Intel, on behalf of itself, its Affiliates and its Personnel, hereby assigns and agrees to assign to Mobileye all of its and their right, title, and interest to Project Patent Rights to any Re-Allocated Project Invention that is allocated to Mobileye (in accordance with Section 7.4), without any duty of accounting, and without any duty to obtain Intel’s or its Affiliates’ consent or to pay any royalties to Intel to exploit, license, or enforce such rights.

 

7.7.

Mobileye Patent Assignment. Mobileye, on behalf of itself, its Affiliates, and its Personnel, hereby assigns and agrees to assign to Intel all of its and their right, title, and interest to Project Patent Rights to any Abandoned Project Invention (as defined in Section 7.5.1) and Re-Allocated Project Invention that is allocated to Intel (in accordance with Section 7.4), without any duty of accounting, and without any duty to obtain the consent of or pay any royalties to Mobileye, its Affiliates, or their Personnel to exploit, license, or enforce such rights.

 

7.8.

Filing Patent Applications. A party who owns Patent Rights to an Agreement Invention may, in its sole discretion, file patent applications claiming those Patent Rights. The owning party may file anywhere in the world, solely in its own name, and at its own expense. The party who owns Patent Rights to an Agreement Invention need not file any patent application for it and need not maintain any patent application it has filed.

 

7.9.

Disclosure of Patent Applications. Before any patent application is filed for a Project Invention, each party must disclose the final patent application draft to the other party and remove the Confidential Information, Background Technology, and Project Technology identified by the owning party.

 

 

7.10.

Cooperation in Applying for Patents. Each party who is assigning Patent Rights will assist the assignee by doing the following promptly when requested at its own expense: (A) execute and deliver assignment documents; (B) cause its Personnel, including inventors of Agreement Inventions, to cooperate with filing patent applications, without charging the other party for the time of its Personnel; and (C) pay any compensation relating to patent filing or use of its Personnel’s Invention rights without right of reimbursement from the assignee.

 

7.11.

Confidentiality of Invention Information. With respect to Agreement Inventions, the party that does not own the Patent Rights to the Agreement Invention will protect the Invention Information in the same manner it protects its own Confidential Information until the earlier of the date: (A) that is 5 years after the date of allocation of ownership of the Patent Rights under this Agreement; or (B) on which the information is no longer confidential, including when a patent application for the Agreement Invention, if any, is published. A party that does not own the Patent Rights in an Agreement Invention may request that the other party provide a waiver in writing of the time requirement to maintain confidentiality. This Section 7.11 is without prejudice to Mobileye’s obligations under Section 9.6.

 

8.

General Licenses.

 

8.1.

Express licenses only. Neither party grants any implied licenses to the other under any legal theory. The only licenses granted in this Agreement are the express licenses in Sections 5.1.2, 8.4, 8.5, 8.6, 9.3.2, 9.5.1, and 9.5.2. Without limiting the foregoing, neither party is licensed to use or modify the other party’s Technology to create new Technology, unless and to the extent expressly stated in this Agreement. Nothing in this Agreement requires or will be treated as requiring either party to grant any additional license.

 

8.2.

LiDAR manufacturing. Nothing in this Agreement licenses, or requires Intel to license, Mobileye any rights to make or have any third party make any LiDAR hardware.

 

8.3.

Reserved rights. No license is granted under this Agreement to any (a) semiconductor manufacturing Technology, Integrated Circuit Technology, or semiconductor process Technology or (b) to make, have made, use, sell, offer to sell, export, import, and otherwise keep or dispose of any Intel-Compatible Processor.

 

8.4.

Development License. Subject to the terms of this Agreement and during the Term, each party hereby grants to the other party and its Affiliates a worldwide, revocable, terminable, royalty free, fully paid-up, non-exclusive, non-transferable, non-sublicensable license under its IPR in Background Technology and Project Technology which it discloses to the other under an SOW (but excluding all LiDAR-related Technology identified in Exhibit C and Exhibit D), for its Personnel to internally use the disclosed Background Technology and Project Technology to perform its obligations under an SOW, or conduct internal research connected to an SOW.

 

 

8.5.

License to Deliverables. Subject to the terms of this Agreement, the party providing a Deliverable to the other party hereby grants the other party and its Affiliates a world-wide, perpetual, royalty-free, fully paid-up, non-exclusive, non-transferable (except as permitted by Section 18.3 (Assignment)), non-sublicensable (except as stated in this subsection), license under its Trade Secret Rights and Copyrights in the Deliverable to use (but not disclose except for as embodied in a Licensed Product (as defined below)) the Deliverable as expressly intended under the associated SOW and for the Licensed Product. A party may sublicense the license above to end users or authorized manufacturers of its Licensed Product, if the associated SOW specifies that the purpose of the Deliverable is incorporation into a Licensed Product, and a sublicense is necessary. Any license to Intel for commercial distribution of Mobileye software must be in a separate agreement. The SOW may expressly set out specific license grants in respect of specific Deliverables, and these will displace the license grant in this Section 8.5 for those Deliverables. In this Section 8.5, “Licensed Product” means the product (other than a LiDAR product) expressly permitted to be developed under the SOW pursuant to which the Deliverable was provided.

 

8.6.

Project Patent Rights Cross-License. Subject to Section 8.3, the party that solely owns Project Patent Rights (other than Excluded Rights) hereby grants to the other party and its Affiliates, a world-wide, perpetual, irrevocable, non-terminable, royalty-free, fully paid-up, non-exclusive, non-sublicensable, non-transferable (except as permitted by Section 18.3 (Assignment)) license under its Project Patent Rights (other than Excluded Rights) to (A) make, use, offer to sell, sell, import, and otherwise exploit and dispose of any Project Invention that is embodied in or used in any party’s products or services, and (B) practice and have practiced any Project Invention in a party’s manufacturing or services.

 

8.7.

Sublicense Rights. Nothing in this Agreement affects the rights or obligations of either party under the Subsidiary Agreement. The license in Section 8.6 is in addition to and not in place of any licenses that may be granted under the Subsidiary Agreement.

 

8.8.

Affiliate Rights. Any licenses granted under this Agreement by one party to the other party’s Affiliate (“Applicable Entity”) will terminate immediately without notice on the day that the Applicable Entity is no longer an Affiliate of that other party. Licenses granted under this Agreement by the Applicable Entity, before it ceases to be an Affiliate, will remain in force. Because Mobileye is not an “Affiliate” of Intel within the meaning of this Agreement, this provision does not affect the existence or otherwise of the licenses granted under this Agreement by Intel to Mobileye, even if Intel ceases to Control Mobileye.

 

8.9.

Trademark License. The parties may use each other’s name to refer to that party’s products or services. After the IPO Date, the parties will meet to agree on trademark logo license terms and usage guidelines.

 

9.

Radar-related Technology.

 

9.1.

Intellectual Property Rights. Intel retains ownership of all Intellectual Property Rights in the Radar Technology.

 

 

9.2.

Mobileye Solely-Created Post-IPO Above-the-Line Radar Technology. Intel, effective on the IPO Date, assigns and agrees to assign to Mobileye all of Intel’s right, title, and interest to Copyrights and Trade Secret Rights to Post-IPO Above-the-Line Radar Technology, which is Solely-Created by Mobileye Personnel (but only to the extent the Copyrights and Trade Secrets Rights are originally assigned by Mobileye to Intel under this Agreement), without any duty of accounting, and without any duty to obtain Intel’s consent or to pay any royalties to Intel to exploit, license, or enforce such rights.

 

9.3.

Transitional Radar Technology and Intel Radar Technology.

 

9.3.1.

Assignment. Mobileye, on behalf of itself, its Affiliates and its Personnel, hereby assigns and agrees to assign to Intel all its and their right, title, and interest to IPR to Transitional Radar Technology and Intel Radar Technology, without any duty of accounting, and without any duty to obtain the consent of or to pay any royalties to Mobileye or its Affiliates to exploit, license, or enforce such rights.

 

9.3.2.

Alternative License. If any part of the assignment in Section 9.3.1 is not possible for any reason, Mobileye, on behalf of itself and its Affiliates and its Personnel, hereby grants to Intel and its Affiliates, a world-wide, perpetual, irrevocable, non-terminable, royalty-free, fully paid-up, exclusive (including as to Mobileye and its Affiliates), sublicensable, transferable license under its and their unassigned IPR to Transitional Radar Technology and Intel Radar Technology to use, disclose, modify, distribute, perform, display, make, have made, license, offer to sell, sell, import, and otherwise dispose of Transitional Radar Technology and Intel Radar Technology.

 

	9.4.	Implementation Patents for Post-IPO Above-the-Line Radar Technology. From time to time the parties’ patent attorneys may identify Agreement Inventions that are specific implementations or embodiments of the Post-IPO Above-the-Line Radar Technology, if any, excluding Inventions that may be used in Intel products, and Intel may in its sole discretion and with the approval of the Director of the Intel Patent Group, allow Mobileye to own the Patent Rights to such Agreement Inventions, including Inventions specific for radar bumper handling.

	9.5.	Radar Licenses.

9.5.1.

Copyrights and Trade Secrets. Subject to the terms of this Agreement, Including Section 8.3, Intel hereby grants to Mobileye and its Affiliates a world-wide, perpetual, royalty-free, fully paid-up, non-exclusive, non-sublicensable, non-transferable (except as permitted by Section 18.3 (Assignment)) license under Intel’s Trade Secret Rights and Copyrights to:

 

(a)

Radar Technology, to the extent to which it:

 

(i)

was disclosed by Intel to the Radar Team prior to their employment by Mobileye; or

 

(ii)

is physically or electronically delivered to Mobileye by Intel under this Agreement for the purposes of the Mobileye Sensor Product; and

 

 

(b)

Transitional Radar Technology;

 

(together, “Licensed Technology”) to use, copy, modify, create derivative works of, and distribute and disclose (but in each case only as embodied in the Mobileye Sensor Product or to subcontractors under Section 2.9), the Licensed Technology for the development and Permitted Use of the Mobileye Sensor Product. Intel Radar Technology which is created under this Section 9.5.1 will be deemed to become Licensed Technology for the purposes of the license in this Section 9.5.1.

 

9.5.2.

Patent Rights. Subject to Section 8.3, Intel hereby grants to Mobileye and its Affiliates, a world-wide, perpetual, irrevocable, royalty-free, fully paid-up, non-exclusive, non-sublicensable, non-transferable (except as permitted by Section 18.3 (Assignment)) license under the Additional Patents and Radar Patents to:

 

(a)

make, use, offer to sell, sell, import, and otherwise exploit and dispose of a Mobileye Sensor Product that embodies any claimed Invention in the Additional Patents or Radar Patents; and

 

(b)

practice and have practiced any claimed method or process in the Additional Patents or Radar Patents for or in the Mobileye Sensor Product;

 

in each case only for the Permitted Use.

 

9.5.3.

No patent laundering. Mobileye acknowledges and agrees that the licenses granted under this Section 9.5 do not cover any activities of Mobileye or its Affiliates on behalf of third parties for the purpose of obtaining rights under the Intel licensed IPR (i.e., patent laundering), including making or having made products based on designs owned or developed by third parties.

 

9.6.

Patent Filing Restriction.

 

9.6.1.

During the development of the Mobileye Sensor Products, and for five years from the completion of the last Mobileye Sensor Product, Mobileye must not file a patent application based on or using the Licensed Technology (as defined in Section 9.5.1) or information in the Radar Patents, except with the prior written approval of the Director of the Intel Patent Group.

 

9.6.2.

Mobileye may not disclose any Intel Confidential Information that is Radar Technology, Transitional Radar Technology, or Intel Radar Technology in any patent application at any time without written permission from the Director of the Intel Patent Group.

 

9.6.3.

During the period referred to in Section 9.6.1, Mobileye must disclose any radar Invention to Intel upon submission to Mobileye’s docketing system and consult with Intel prior to filing of any radar patent application to remove Intel Confidential Information and Intel Technology disclosed in the patent application.

 

 

9.7.

Patent Defense. If Mobileye or its Affiliate is sued by a practicing company for infringement of a radar patent, Intel will assist Mobileye or its Affiliate consistent with the terms and procedures in Exhibit F.

 

9.8.

Radar Non-Compete. During the Radar Non-Compete Term, Intel will not sell an external environment-sensing MM-wave-based software-defined radar product which has 48x48 virtual channels and implements the BSR in its entirety, for (i) ADAS in Automobiles or (ii) autonomous Automobiles (“Agreed BSR Product”). Intel may Co-Develop an Agreed BSR Product with a third party, subject to the third-party agreeing not to sell the Agreed BSR Product during the Radar Non-Compete Term.

 

9.9.

No Restriction on Acquired Companies or Foundry Services. The terms in Section 9.8 do not apply to any company acquired by Intel at any time or to Intel’s and its Affiliates’ foundry services.

 

10.

Confidentiality. The parties have entered into a CNDA. The trade secret licenses in this Agreement may allow the parties to use and disclose licensed information more broadly than the terms in the CNDA. The parties may also enter into a RUNDA for certain highly Confidential Information. Notwithstanding the license terms in this Agreement, the RUNDA terms will govern each party’s disclosure and protection obligations related to Confidential Information disclosed under a RUNDA. Mobileye will also take reasonable measures to protect third party confidential information from disclosure that it receives through Intel, and Mobileye will fulfill all instructions from Intel for compliance with Intel’s agreements with third parties.

 

11.

Disclaimer and Limitation of Liability.

 

11.1.

Disclaimer. Except for the warranties expressly set forth in this Agreement, and subject to Section 11.5, each party and its Affiliates hereby expressly disclaims all representations and warranties, including implied warranties of merchantability, non-infringement, and fitness for a particular purpose. Neither party makes any representations or warranties about the validity or enforceability of any IPR.

 

11.2.

Limitation of Liability. Except for claims described in Section 11.4, neither party or its Affiliates will be liable for indirect, incidental, exemplary, punitive, consequential, or special damages arising out of this Agreement, or any damages from the loss of profits, revenue, production, use, or data, whether direct or indirect and regardless of whether those damages arise in contract or tort or whether the parties are aware of the possibility of those damages.

 

	11.3.	Liability cap. Except for claims described in Section 11.4 and Section 11.5, the aggregate liability of either party and its Affiliates arising out of or related to this Agreement, regardless of the form of any claim, action, or theory of liability (Including contract, tort, or statute), will not exceed the aggregate amounts paid or payable by Mobileye to Intel under this Agreement for any development services. Multiple claims will not increase this limitation.
	11.4.	Unlimited Liability. No limitation will apply to any claim of infringement of Intellectual Property Rights, breach of a license or confidentiality obligation including Section 10, or any liability which cannot be limited under applicable law.

 

11.5.

Product warranties and liabilities. Intel’s standard terms and conditions of sale set forth the exclusive warranties, remedies, and liabilities applicable to the products sold by Intel to Mobileye.

 

 

12.

Right to Challenge Validity. A party that assigns any Patent Rights in a Project Invention under this Agreement expressly reserves the right to challenge the validity or enforceability of any of the assigned Patent Rights, and each party expressly waives all rights to assert the doctrine of “assignor estoppel” in any dispute or legal action involving Patent Rights to any Project Invention.

 

13.   Notices and Approvals.

 

13.1.         Notices.

 

13.1.1.

Notices given or required to be given under this Agreement must be written and in English and sent to both the mailing and email address specified below along with a copy of this Agreement. Email delivery alone for a notice of breach of this Agreement or termination is insufficient. Paper copies must be sent by overnight courier or registered or certified mail, with online tracking information supplied by email to the recipient.

 

13.1.2.

Each notice is considered duly given 7 business days (meaning any day other than a Saturday, Sunday, or official holiday in the sender’s or recipient’s location designated below) after being sent.

 

13.1.3.

When this Agreement specifies a time period for sending a notice, a day is any calendar day, unless business days are specified.

 

13.1.4.

Nothing in this Section 13 relates to service of process.

 

13.1.5.

Unless changed by notice, all notices must be addressed as follows:

 

Mobileye:

Intel:

MOBILEYE VISION TECHNOLOGIES LTD 13 Hartom St. Har Hotzvim, Jerusalem, Israel 9777513 Attn: Mobileye General Legal Counsel   With a copy, which will not be notice, to: legal@mobileye.com

INTEL CORPORATION 2200 Mission College Blvd. Santa Clara, CA 95054 Attn: General Counsel Reference ID: Miriam Ezrachi Technology and Services Agreement   With a copy, which will not be notice, to: Intel-Legal-Notices@intel.com   With an email copy, which will not be notice, to Jack Weast.   And with a copy, which will not be notice, to: Intel Corporation Post Contract Management, M/S FM1-53 1900 Prairie City Road Folsom, CA 95630 Email: post.contract.mgmt@intel.com

 

 

13.2.

Approvals. Where this Agreement provides that Intel’s written agreement or approval is required, then unless otherwise specified in the Agreement, such agreement or approval is a prior written agreement or approval, given either (a) in a written agreement executed by authorized representatives of the parties; or (b) expressly by an Intel Corporate Vice President or higher-grade executive.

 

14.

Termination.

 

14.1.

Term.

 

14.1.1.

Initial Term. This Agreement begins on the Effective Date and continues until the date which is 24 months after the IPO Date (this period, the “Initial Term”), unless terminated earlier by either party:

 

(a)

under Section 14.2;

 

(b)

under Section 14.3; or

 

(c)

by notice given no later than 90 days before the end of the Initial Term.

 

14.1.2.

Renewal. After the Initial Term, and provided it is not terminated in accordance with Section 14.1.1, this Agreement automatically extends for one-year periods, unless terminated earlier by either party:

 

(a)

under Section 14.2;

 

(b)

under Section 14.3; or

 

(c)

by giving notice of non-renewal no later than 90 days before the end of the then-current one-year period.

 

14.2.

Termination for Material Breach. Either party may terminate this Agreement or an SOW for a material breach. A notice must state the provisions that have been breached and the facts establishing a breach. Except for payment breaches, which must be cured within 30 business days of notice, the parties must follow the dispute resolution process in Section 15 and allow the breaching party an opportunity to cure before the Agreement or the SOW will terminate.

 

14.3.

Termination for Bankruptcy or Insolvency. This Agreement will terminate automatically and without notice if a party becomes insolvent, unable to pay its debts when due, or the subject of any voluntary or involuntary insolvency, cession, liquidation, winding up, bankruptcy, reorganization, rearrangement, receivership, assignment for the benefit of creditors, or similar proceedings under applicable law, including without limitation the U.S. Bankruptcy Code or any foreign equivalent.

 

14.4.

SOW Term. Subject to Section 14.5.2, each SOW will be effective and binding on both parties for the SOW Term, and termination of an SOW will be effective in accordance with the provisions of that individual SOW.

 

 

14.5.

Effect of termination of Agreement. If this Agreement expires or is terminated for any reason, then:

 

14.5.1.

the licenses that do not expressly continue beyond the Term will immediately terminate;

 

14.5.2.

any SOWs then in force will immediately terminate; and

 

14.5.3.

termination of this Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.

 

14.6.

Effect of termination of SOW. Upon termination of the last SOW, except for Deliverables or Technology licensed under this Agreement past termination of the Agreement, each party will return or (at the owning party’s option) destroy all Technology of the other party disclosed or created for this Agreement and deactivate all access to the other party’s physical property.

 

15.    Dispute Resolution.

 

15.1.

Any dispute arising out of or relating to this Agreement, including any non-payment related allegation of a material breach, will be resolved as follows: A party will send notice of the dispute or material breach, including a detailed description of the issues and relevant supporting documents. Management from each party will then try to resolve the dispute. If the parties do not resolve the dispute within 30 calendar days after the dispute notice, either party may send notice of a demand for mediation. The parties will then try to resolve the dispute with a mediator. If the parties do not resolve the dispute within 60 calendar days after the mediation demand, either party may begin litigation or the party alleging the material breach may terminate this Agreement.

 

15.2.

Either party may at any time may seek an injunction or other equitable remedies for misappropriation of trade secrets, breach of confidentiality obligations, or infringement of IPR, without complying with the process in Section 15.1.

 

16.   Survival. Sections 1, 2.5, 2.6, 2.8, 2.9.1(b), 2.9.2, 2.10, 3, 4, 5, 6, 7, 8.1, 8.2, 8.3, 8.5, 8.6, 8.7, 9.1, 9.2, 9.3, 9.5, 9.6, 9.7, 9.8, 9.9, 10, 11, 12, 13, 14.5, 14.6, 16, 17, 18 and the Schedules and Exhibits to which they refer will survive termination of this Agreement.

 

17.   Entire Agreement.

 

17.1.

In addition to the Subsidiary Agreement between Intel Corporation and Intel subsidiaries, this Agreement contains the complete and exclusive agreement between the parties concerning its subject matter, and supersedes all prior and contemporaneous agreements, understandings, representations, warranties, and communications between the parties relating to its subject matter.

 

17.2.

This Agreement Including its termination, has no effect on the Subsidiary Agreement or on any signed non-disclosure agreements between the parties (Including those referenced in this Agreement), which remain in full force and effect as separate agreements according to their terms.

 

17.3.

The express provisions of this Agreement control over any course of performance, course of dealing, or usage of the trade inconsistent with any of the provisions of this Agreement.

 

 

18.   General.

 

18.1.

Amendments. No amendment or modification to this Agreement will be effective unless in writing and signed by authorized representatives of the parties.

 

18.2.

Anti-Reliance. Each party agrees that, in entering into this Agreement, (A) it has relied solely on the results of its own investigation of the facts and circumstances, its own business judgment, and the express terms and conditions in this Agreement, and (B) it has not relied on and is not entitled to rely on any oral or written understanding, condition, representation, warranty, or communication that is not expressly set forth in this Agreement.

 

18.3.

Assignment. Subject to Section 18.4, neither party may assign any rights or delegate any duties under this Agreement, in whole or in part, whether by contract, operation of law or otherwise without the prior written consent of the other party, and any attempt to assign any rights, duties, or obligations without the other party’s written consent will be a material breach of this Agreement and will be null and void. This Agreement will bind and inure to the benefit of the respective parties and their permitted successors and assigns.

 

18.4.

Permitted assignments. Consent is not required under Section 18.3 for Intel to assign or delegate all or any of its rights or obligations under this Agreement to any Intel Entity.

 

18.5.

Conflicts Among Documents. If there is any conflict between the provisions of Sections 1 through 18 of this Agreement and any term in a document included or referenced in this Agreement, the following order of precedence for determining which terms will control is: (A) any RUNDA; (B) the provisions of Sections 1 through 18 of this Agreement; (C) the SOWs; (D) the CNDA.

 

18.6.

Expenses. Unless otherwise specified in this Agreement or an SOW, each party is responsible for its own expenses associated with negotiating and performing under this Agreement.

 

18.7.

Force Majeure.

 

18.7.1.

Party not liable. A party is not liable for its delay in performing, or its failure to perform, any obligations under this Agreement to the extent that the delay or failure to perform is caused by a Force Majeure Event.

 

18.7.2.

Notice required. A party seeking to excuse its delay in performing or failure to perform must give prompt written notice of the Force Majeure Event after it occurs and describe the circumstances causing, and the anticipated duration of, any actual or anticipated delay or failure to perform.

 

18.7.3.

Best efforts to minimize. A party seeking to excuse its delay in performing or failure to perform must use best efforts to minimize the effects and duration of its nonperformance.

 

18.7.4.

Non-waiver of Common Law Defenses. The rights and remedies in this Section 18.7 are in addition to any other rights and remedies provided by law or in equity, including the doctrines of impossibility of performance or frustration of purpose.

 

 

18.8.

Headings. The section and paragraph headings in this Agreement are for convenience of reference only and must not affect the interpretation of this Agreement.

 

18.9.

Independent Development. Except for the restrictions in Sections 9.5 and 9.8, this Agreement does not preclude either party from: (a) independently designing, developing, making, marketing, or distributing any technologies or products; or (b) entering into any arrangements with third parties, including evaluating or acquiring a third party’s technologies or products.

 

18.10.

No Construction Against the Drafter. Both parties will be considered to have drafted this Agreement, and each party waives any rule of construction that ambiguities will be construed against the drafting party.

 

18.11.      Transaction Taxes. Notwithstanding anything to the contrary herein, with regard to each respective parties’ payments noted in Section 3 or in an SOW, the party making the payment under this Agreement (“Payor”) will pay all applicable transaction taxes, Including sales and use taxes, value added taxes, duties, customs, tariffs, and other government-imposed transactional charges (“Transaction Taxes”). The party receiving payments under this Agreement (“Recipient”) will separately state on its invoices the Transaction Taxes that Recipient is required to collect under applicable law. Payor will provide proof of any exemption from Transaction Taxes to Recipient at least 15 business days prior to the due date to paying an invoice. Recipient will cooperate with Payor in minimizing any Transaction Taxes to the extent permitted by applicable law. If Recipient fails to collect required Transaction Taxes from Payor, Payor’s liability will be limited to the Transaction Tax assessment, with no reimbursement for penalty or interest charges.

 

18.12.      Withholding Taxes. If applicable, Payor will be entitled to deduct or withhold from amounts payable to Recipient under this Agreement any withholding taxes required to be deducted or withheld under applicable law and pay to Recipient the remaining net amount. Payor will remit, and provide Recipient with evidence that Payor has remitted, the withholding taxes to the appropriate taxing authority. If within 15 business days prior to the due date for any Payor payment, Recipient provides Payor with valid certificate or other documentation demonstrating that Recipient is exempt from withholding taxes, or a lower rate of withholding tax applies, then Payor will, as appropriate, not deduct or withhold from any payment to Recipient or apply the lower rate to the payment.

 

For the avoidance of doubt, each party is responsible for its own respective income taxes or taxes based on gross revenues or gross receipts.

 

18.13.

Tax Treatment. For U.S. tax purposes, the transfer of Intel’s right, title, and interest to Copyrights and Trade Secret Rights to Post-IPO Above-the-Line Radar Technology Solely-Created by Mobileye pursuant to Section 9.2 of this Agreement shall be treated as a contribution of property described in Section 351 of the Internal Revenue Code of 1986, as amended. Such transfer shall be deemed, for applicable tax purposes, to be a contribution of property by Intel to Intel Overseas Funding Corporation, a Delaware corporation (“IOFC”) immediately followed by a transfer of such property from IOFC to Mobileye. The parties shall file all tax returns consistent with the foregoing and otherwise take no contrary position in any communication with any governmental authority.

 

 

18.14.

Trade Compliance. A party’s provision of Technology must be in in compliance with all applicable trade laws and regulations. Each party will not export or re-export, either directly or indirectly, any technical data, software, process, product, service, or system obtained from the other party, without first complying with applicable government laws and regulations governing the export, re-export, and import of those items. Upon a party’s request, the other party agrees to provide export classifications, Harmonized Tariff Schedule classifications, or other information necessary for compliance with applicable trade laws and regulations for all Technology provided under this Agreement.

 

18.15.

Third Party Rights. This Agreement is made for the benefit of Mobileye and Intel and is not intended to benefit or be enforceable by any third party. The rights of Mobileye and Intel to terminate, rescind, amend, waive, or vary any term of, or to settle disputes regarding, this Agreement, are not subject to the consent of any third party.

 

18.16.

Waiver. No waiver of any provision of this Agreement will be valid unless in a writing signed by the waiving party that specifies the provision being waived. A party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver.

 

18.17.

Severability. If a court holds a part of this Agreement unenforceable, the court will modify that part to the minimum extent necessary to make that part enforceable, or if necessary, sever that part. The rest of this Agreement remains fully enforceable.

 

18.18.

Governing Law. Delaware and United States law governs this Agreement and any dispute arising out of or relating to it without regard to conflict of laws principles.

 

18.19.

Jurisdiction. The state and federal courts in Wilmington, Delaware will have exclusive jurisdiction over any dispute arising out of or relating to this Agreement, including claims of breach of confidentiality or trade secret misappropriation. The parties consent to personal jurisdiction and venue in those courts.

 

18.20.

Counterparts and Electronic Signatures. This Agreement may be signed electronically and in multiple counterparts, each of which is considered an original, but all of which constitute a single instrument.

 

 

Agreed:

 

Intel Corporation

Mobileye Vision Technologies, Ltd.

 

Signature:

Signature:

 

Printed Name:

Printed Name:

 

Title:

Title:

 

Date Signed:

Date Signed:

 

 

Schedule 1: Definitions

 

1)

“Above-the-Line Radar Technology” means:

 

	a)	the radar training data collected by the Radar Team or Mobileye, and artificial intelligence models implementing the related algorithms and trained on this data set; and

b)

design specifications, software implementations, or algorithm implementations, which are specific to only the Mobileye Sensor Product, but excluding any incorporated general or core information or individual component information, for the following:

 

(1)

antenna array and bumper handling design and layout documents for the EyeC radar product, and

 

(2)

BSR BPU radar processor and its firmware, and the specific designs and layout documents for the product radio frequency ICs, and hardware and mechanical housing.

 

2)     “ADAS” means advanced driver-assistance systems.

 

3)

“Additional Patents” means Patent Rights to Agreement Inventions that are assigned by Mobileye to Intel under Section 9.3.1 and that are Conceived by Mobileye Personnel whether solely, or jointly with Intel.

 

4)

“Affiliate” means an entity that directly or indirectly Controls, or is directly or indirectly Controlled by, or is under common Control with, either Intel or Mobileye, but only as long as such Control exists, provided that for purposes of this Agreement:

 

a)     none of the Mobileye Entities will be considered an Affiliate of any Intel Entities;

 

b)    none of the Intel Entities will be considered an Affiliate of any Mobileye Entities;

 

c)     no portfolio company of Intel Capital will be considered an Affiliate of Intel or any of Intel’s or the Intel Entities’ Affiliates, and

 

d)    none of Intel or any of Intel’s or the Intel Entities’ Affiliates will be considered an Affiliate of such portfolio company or any of such portfolio company’s Subsidiaries.

 

5)     “Agreement” means Sections 1 through 18 of this document, its attached schedules and exhibits, and all of its SOWs, as they may be amended from time to time in accordance with Section 18.1.

 

6)     “Agreement Invention” means any (a) Project Invention; (b) Invention in Transitional Radar Technology; and (c) Invention in Intel Radar Technology.

 

7)     “Automobile(s)” means a vehicle used primarily on public roads for transportation and not for military purposes.

 

8)     “Background IPR” means all Intellectual Property Rights, trademarks, trade names, service marks, trade dress, and other forms of corporate or product identification owned, controlled, obtained, or licensed by a party at any time prior to or after the Term, or arising from development of Technology created independently of this Agreement.

 

9)     “Background Technology” means Technology, which may include new radar technology, that is disclosed by one party to the other party during the Term and is described in an SOW, excluding Project Technology.

 

 

10)   “BPU” means base band processing unit.

 

11)   “BSR” means the specification for the system architecture for a MM-wave-based software-defined imaging radar sensor for external-environment sensing, for autonomous Automobiles or ADAS in Automobiles, set out in Exhibit H.

 

12)   “CNDA” means the Corporate Non-Disclosure Agreement between the parties.

 

13)

“Co-Develop” or “Co-Developed” means to engage in joint technical co-design and co-product development with a contractual commitment for substantial Intel engineering resources and high volume production.

 

14)  “Conception” or “Conceive(s)” means formation in the mind of the inventor(s) of a definite, complete, operative invention, as it may be practiced.

 

15)  “Confidential Information” means the confidential information defined in the CNDA and RUNDA between the parties.

 

16)

“Control” or “Controlled” means directly or indirectly owning or having voting control over more than fifty percent (50%) of the outstanding securities entitled to vote for the election of directors or similar managing authority of an entity, or otherwise having the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body of an entity.

 

17)

“Copyrights” means all copyrights, copyright applications, copyright registrations, or any analogous or related right arising under statutory or common law, anywhere in the world, including any rights from laws implementing the European Database Directive 96/9/EC.

 

18)

“Created” means collected, Conceived, created, authored, developed, or generated.

 

19)   “Deliverable” means the pre-commercial Project Technology or Background Technology (excluding Technology licensed under Section 9.5 and notwithstanding anything to the contrary in an SOW, excluding all LiDAR-related Technology identified in Exhibit C and Exhibit D) that meets both of the following requirements: (a) is identified and described in an SOW as a deliverable for a recipient; and (b) is physically or electronically delivered from a party to a recipient.

 

20)

“Excluded Rights” means Patent Rights to an Invention which is of the same type or category as any of the “Intel Radar-Related Technology” in Exhibit D, or which is of the same type or category as, or is a modification or improvement to:

 

a)

any Radar Technology;

 

b)

any Radar Patent; or

 

c)

any Transitional Radar Technology.

 

21)

“Fees” means the fees for the provision of the Services, if any, as set out in an SOW.

 

 

22)

“Force Majeure Event” means an event beyond a party’s reasonable control. A Force Majeure Event that is continuous, but changes in severity or impact, may constitute more than one Force Majeure Event. For example, Covid-19-related issues can be fluid and newly imposed restrictions or warnings, or travel inaccessibility, may cause a new Force Majeure Event to occur. A Force Majeure Event includes the following:

 

a)     an act of God (whether or not caused by human action), such as earthquake, fire, flood, hurricane, mudslide, bacterial or viral outbreak, pandemic, epidemic, or other outbreak of communicable disease (including Covid-19 and its variants and mutations), tornado, tsunami, volcanic activity, wildfire, and other natural disasters;

 

b)     an act of a government agency or civil or military authority, or civil disturbance, such as civil war, embargo, insurrection, martial law, military action, order, ordinance, or regulation (including any officially declared emergency or any closing or limiting business operations, travel, or use of private or public transportation or other mobility), rebellion, revolution, riot, and war;

 

c)     a malicious act or damage, such as sabotage, terrorism, vandalism, or cyberattacks;

 

d)     an accident, such as one involving an aircraft, motor vehicle, ship, or train, or any chemical release, collision, explosion, fire, radiation or radioactive contamination, or a negligent act causing damage;

 

e)     a protracted failure of an air, gas, water, or electrical or other energy source, or of a broadband, radio or television broadcast, cellular, internet, satellite, telephone, or other communication system;

 

f)      production or supply-chain disruption, such as breakdown of plant, equipment, or machinery, default of supplier or subcontractor, inability to secure transportation, shortage of supply or delay in delivery by vendor, strike, lockout, or other labor dispute or stoppage (whether involving its own workforce or a supplier or subcontractor); or

 

g)    other events of like nature.

 

23)

“General Project Technology” means Project Technology that is not Intel Core Technology.

 

24)

“including” whether or not capitalized, means including but not limited to.

 

25)   “Integrated Circuit” means an integrated unit comprising:

 

a)     one or more active or passive electronic or optical circuit elements associated on one or more substrates, such integrated unit forming, or contributing to the formation of, a circuit for performing electrical or optical functions, including any packaging, housing, or supporting means; and

 

b)    any firmware, microcode, or drivers, if needed to cause such circuit to perform substantially all of its intended hardware functionality, whether or not such firmware, microcode, or drivers are shipped with such integrated unit or installed at a later time.

 

26)

“Intel Aligned Employees” means the Intel employees who meet all of the following criteria:

 

a)

specifically identified in a dedicated SOW, the subject of which is “Intel Aligned Employees”;

 

b)

employed by Intel; and

 

c)

assigned by Intel to provide services to Mobileye in respect of this Agreement.

 

 

27)

“Intel-Compatible Processor” means:

 

a)     any product (in each case, as used in this definition, including any component, part, software, firmware, or other functionality, whether part of a larger product or separate) of someone other than Intel or its Affiliates that is capable of, alone or in combination with any products (other than Intel products as supplied by Intel or its Affiliates when used as directed by Intel or its Affiliates):

 

i)

executing or translating, natively or via emulation, simulation, cloning, or in any other way, all or a substantial portion of the instruction set of any processor (or any derivative, follow-on, or extension of such instruction set) that was first introduced by, was substantially developed by or with substantial participation of, or the architecture, design, or core of which is owned by, Intel or its Affiliates; or

 

ii)

interfacing with or incorporating any portion of any proprietary bus or other proprietary data path of Intel or its Affiliates; or

 

b)     any product (including any system) of someone other than Intel or its Affiliates that is, or any part of which is, optimized or designed to emulate, simulate, or clone, or allow emulation, simulation, or cloning of, or that does emulate, simulate, or clone, any substantial functions of a product covered by subsection (a) above; or

 

c)     any product of someone other than Intel or its Affiliates that is pin compatible with any processor that was first introduced by, was substantially developed by or with substantial participation of, or the architecture, design, or core of which is owned by, Intel or its Affiliates.

 

For purposes of this definition of Intel Compatible Processor, a product is a product “of someone other than Intel or its Affiliates” if that product is manufactured by an entity other than Intel or its Affiliates (and is not manufactured for Intel or its Affiliates).

 

28)

“Intel Core Field” means the following:

 

a)     Technology types that are (i) identified in Exhibit C (Intel Lidar and Radar Technology); (ii) identified in Exhibit D (Intel Fundamental Technology types), or (iii) in the same field as the inventions identified in Exhibit E (Lidar and Radar Patents); and

 

b)     any additions to the above expressly described in an SOW by Intel.

 

29)

“Intel Core Technology” means Project Technology that is in the Intel Core Field.

 

30)	“Intel Entities” means Intel and its Subsidiaries (other than the Mobileye Entities).

31)

“Intel Radar Technology” means Technology that is Created between the Effective Date and the last day of the period of the patent filing restriction in Section 9.6.1, by Mobileye and its Affiliates’ employees, agents, contractors, and subcontractors (whether solely or jointly with Intel or its Affiliates’ employees, agents, contractors, and subcontractors), but not under an SOW, and which is:

 

a)

a modification to or an improvement of any:

 

i)

Radar Technology;

 

ii)

Radar Patent;

 

iii)

Transitional Radar Technology; or

 

iv)

Intel Technology in the category of “Intel Radar-Related Technology” in Exhibit D otherwise shared by Intel with Mobileye; or

 

 

b)

without limiting the foregoing, a modification or derivative work done under Section 9.5.1.

 

32)

“Intellectual Property Rights” or “IPR” means all intellectual property rights, Including Copyrights, Patent Rights, Trade Secret Rights, and but excluding trademarks, trade names, service marks, trade dress, or other forms of corporate or product identification.

 

33)  “Invention” means an invention of a process, machine, manufacture, or composition of matter, or improvement.

 

34)  “Invention Information” means information that: (A) describes inventorship and the inventive aspects of an Agreement Invention or its operation; and (B) is confidential and not generally known in the industry.

 

35)

“Invention Tracking Document” means a document identifying the Agreement Inventions as described in Section 7.2.

 

36)   “IPO Date” means the date on which Mobileye Global Inc., the indirect parent of Mobileye, makes an initial public offering of its Class A common stock pursuant to a Registration Statement on Form S-1 under the Securities Act of 1933, as amended.

 

37)   “Jointly-Conceived” means when Personnel of both parties conceive of at least one inventive aspect of an Invention as determined under U.S. patent law standards.

 

38)   “Mobileye Entities” means Mobileye Global Inc. and its Subsidiaries and any entity which becomes a Subsidiary of Mobileye Global Inc. after the Effective Date.

 

39)   “Mobileye Sensor Product” means one or more components defined in the BSR.

 

40)

“Mobileye Solution” means a solution, such as Mobileye Drive™ or Supervision™, which is based on Mobileye products or technology and includes a Mobileye EyeQ® system-on-chip or its successor product, and which is for autonomous Automobiles or ADAS in Automobiles.

 

41)  “Non-Selecting Party” means a party who does not select the Project Invention by the process in Section 5.2.3.

 

42)  “Patent Rights” means all patent rights in classes and types of utility and design patents applied for and issued (Including substitutions, continuations, continuations-in-part, divisions, reissues, re-examinations, extensions, renewals, and industrial design registrations), anywhere in the world.

 

43)  “Permitted Use” means:

 

a)

use of the Mobileye Sensor Product as integrated (by or for Mobileye) into a Radar System, in an autonomous Automobile or ADAS solution in an Automobile, that Mobileye or its Affiliates sells or operates for mobility-as-a-service; or

 

b)

sale of the Mobileye Sensor Product in or together with a Mobileye Solution, by Mobileye or its Affiliates:

 

i)

to an automotive Tier 1 supplier:

 

(1)

for integration into a Radar System in an autonomous driving Automobile or ADAS in an Automobile for an automotive OEM;

 

(2)

for sale to an automotive OEM for integration into a Radar System for autonomous Automobiles or ADAS in Automobiles;

 

 

ii)

to an automotive OEM for integration into a Radar System for autonomous Automobiles or ADAS in Automobiles; or

 

c)

sale of the Mobileye Sensor Product, by Mobileye or its Affiliates:

 

i)

to an automotive Tier 1 supplier:

 

(1)

for integration into a Radar System in an autonomous driving Automobile or ADAS in an Automobile for an automotive OEM;

 

(2)

for sale to an automotive OEM for integration into a Radar System for autonomous Automobiles or ADAS in Automobiles;

 

ii)

to an automotive OEM for integration into a Radar System for autonomous Automobiles or ADAS in Automobiles; or

 

d)

sale of the Mobileye Sensor Product in a Radar System by Mobileye or its Affiliates to other third parties in other markets agreed in writing signed by authorized representatives of the parties.

 

44)  “Personnel” means:

 

a)

a party’s and its Affiliates’ employees, agents, contractors, and subcontractors who perform work in connection with this Agreement; and

 

b)

Mobileye’s or its Affiliates’ employees, agents, contractors, and subcontractors who Create Intel Radar Technology, and the Radar Team.

 

45)

“Post-IPO Above-the-Line Radar Technology” means Above-The-Line Radar Technology that is Created after the IPO Date and before the expiration or termination of this Agreement.

 

46)  “Project” means technical development work that the parties identify and agree to work on in an SOW.

 

47)  “Project Invention” means Project Technology that is an Invention.

 

48)  “Project IPR” means Copyrights, Trade Secret Rights, Project Patent Rights, to Project Technology.

 

49)  “Project Patent Rights” means all Patent Rights from any patent application filed by a party that claims a Project Invention.

 

50)  “Project Technology” means Technology, which may include new radar Technology, that is Created by Personnel of one or both parties during the Term:

 

a)

under an SOW;

 

b)

for a Project;

 

c)

pursuant to internal research connected to an SOW as described in Section 8.4; or

 

d)

which is a modification or improvement to a Deliverable provided under Section 8.5.

 

 

51)  “Radar Non-Compete Term” means the period that begins on the Effective Date and ends the earlier of:

 

a)

five years after the Effective Date;

 

b)

three years from the date when Intel no longer exercises Control over Mobileye;

 

c)

the date on which Mobileye cancels its Mobileye Sensor Product development;

 

d)

the date on which Mobileye terminates this Agreement other than properly for Intel’s material breach; or

 

e)

the date on which Intel terminates this Agreement properly for Mobileye’s material breach.

 

52)  “Radar Patents” means the patents in Exhibit G.

 

53)

“Radar System” means a MM-wave-based software-defined imaging radar sensor for external-environment sensing, for autonomous Automobiles or ADAS in Automobiles, which implements the BSR in its entirety (but without limitation on channel counts).

 

54)

“Radar Team” means the personnel formerly employed or contracted by Intel, who transferred to Mobileye to work on radar Technology.

 

55)

“Radar Technology” means the Technology designated as radar Technology in Exhibit C.

 

56)  “Re-Allocated Project Invention” means a Project Invention that the parties’ patent attorneys have agreed to change ownership of on the Invention Tracking Document as described in Section 7.4.

 

57)  “Reasonable Efforts” means reasonable, diligent, good-faith efforts to perform the tasks that are comparable to the efforts it commonly uses to perform similar work for its own business.

 

58)  “RUNDA” means a restricted non-disclosure agreement between the parties that identifies specific confidential information, individual recipients, and use restrictions.

 

59)  “Selecting Party” means a party who selects a Project Invention by the process described in Section 5.2.3.

 

60)

“Services” means the work that a party will do for the other party (including for payment) which is specifically described in an SOW as services.

 

61)  “Solely-Authored” means when only Personnel of one party authors a work and it is not intentionally combined with the work of the other party as part of a unitary work.

 

62)  “Solely-Collected” means when only Personnel of one party collects or creates information (Including data of any kind in any format but excluding works of authorship) that is Project Technology.

 

63)  “Solely-Conceives” or “Solely Conceived” means when only Personnel of one party contributes to the Conception of a Project Invention.

 

64)  “Solely-Created” means Solely-Conceived for Project Inventions, Solely-Authored for works of authorship, or Solely-Collected for information.

 

65)  “SOW” means a statement of work under this Agreement that complies with Section 2.1.

 

66)  “SOW Term” has the meaning defined in an SOW.

 

 

67)

“Subsidiary” means, as to any Person (as defined below), a corporation, limited liability company, joint venture, partnership, trust, association, or other entity in which such Person:

 

a)     beneficially owns, either directly or indirectly, more than fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined equity interests, or (iii) the capital or profits interest, in the case of a partnership; or

 

b)    otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body,

 

where a “Person” is any individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including any governmental authority.

 

68)

“Subsidiary Agreement” means the agreement between Intel Corporation and Intel Subsidiaries dated March 4, 2014, to which Mobileye acceded by an agreement dated August 8, 2017.

 

69)

“Technology” means all information (including ideas, plans, know-how, data, algorithms, models, discoveries, Inventions, processes, and methods); tangible embodiments (including hardware, devices, machinery, equipment, tools, apparatus, prototypes, samples, and compositions), and works of authorship (including documents, specifications, reports, presentations, software, firmware, RTL code, libraries, databases, compilations, designs, schematics, and photographs), in any format on any media.

 

70)

“Term” has the meaning given to it in Section 14.1.

 

71)

“Trade Secret Rights” means all trade secret rights or any analogous right, arising under statutory or common law, anywhere in the world.

 

72)

“Transitional Radar Technology” means all Technology Created, solely or jointly with Intel Personnel, by:

 

a)     the Radar Team before the IPO Date; or

 

b)     any other Mobileye employees, agents, contractors or subcontractors in the course of their work on any MM-wave-based software-defined imaging radar sensor, prior to the IPO Date;

 

in each case, which is in the Intel Core Field.

 

 

 

Exhibit 10.6

 

LIDAR PRODUCT COLLABORATION AGREEMENT

 

This LiDAR Product Collaboration Agreement (the “Agreement”) is entered into as of the date of the last signature to it and is effective as of [●] (“Effective Date”) between Intel Corporation, a company established and existing under the laws of Delaware and the United States (“Intel”), and Mobileye Vision Technologies Ltd., a company established and existing under the laws of Israel (“Mobileye”). Intel and Mobileye are each a “party” to this Agreement and, collectively, the “parties.”

 

BACKGROUND

 

(A)

The parties contemplate that Mobileye Global Inc., the indirect parent of Mobileye, will make an initial public offering of its Class A common stock pursuant to a Registration Statement on Form S-1 under the Securities Act of 1933, as amended.

 

(B)

After this initial public offering, the parties intend to collaborate on certain technical development projects under a Technology and Services Agreement (“TSA”) to be executed by the parties on or around the date of execution of this Agreement.

 

(C)

The TSA will not apply to the collaboration between the parties for the development and manufacture of a LiDAR sensor system for automobiles. Instead, as detailed below, this Agreement sets out the terms that will apply to the parties’ collaboration for a LiDAR sensor system, pursuant to which Intel will manufacture and sell to Mobileye or any of its Affiliates a photonic integrated circuit and grating and mirrors wafers that meet Mobileye requirements, which Mobileye will market and sell as part of a LiDAR sensor system solely for external environment sensing for automobiles, under a gross profit-sharing model with Intel.

 

ATTACHMENTS

 

The following attachments are incorporated into this Agreement:

 

Schedule 1:		SOW
Schedule 2:		BVL2 Program and CVL Development Costs
Schedule 3:		Gross profit share
Schedule 4:		BVL and CVL pricing
Schedule 5A:		LiDAR Background Technology
Schedule 5B:		Intel Fundamental Technology Areas
Schedule 5C:		Intel LiDAR Patents
Schedule 6:		Patent filing provisions
Schedule 6A:		Project Invention Tracking Document
Schedule 7:		Project management; Change management
Schedule 8:		Patent litigation assistance

 

 

AGREEMENT

 

The parties agree as follows:

 

1.

Definitions. Capitalized terms used in this Agreement have the following meanings:

 

1.1.

ADAS means advanced driver assistance systems.

 

1.2.

Affiliate means an entity that directly or indirectly Controls, or is directly or indirectly Controlled by, or is under common Control with, either Intel or Mobileye, but only as long as such Control exists, provided that for purposes of this Agreement:

 

1.2.1.

none of the Mobileye Entities will be considered an Affiliate of any Intel Entities;

 

1.2.2.

none of the Intel Entities will be considered an Affiliate of any Mobileye Entities;

 

1.2.3.

no portfolio company of Intel Capital will be considered an Affiliate of Intel or any of Intel’s or the Intel Entities’ Affiliates, and

 

1.2.4.

none of Intel or any of Intel’s or the Intel Entities’ Affiliates will be considered an Affiliate of such portfolio company or any of such portfolio company’s Subsidiaries.

 

1.3.

Agreement means Sections 1 through 23 of this document, its attached schedules, and all of its SOWs, as they may be amended from time to time in accordance with Section 23.1.

 

1.4.

Automobile means a vehicle used primarily on public roads for transportation and not for military purposes.

 

1.5.

Background IPR means all Intellectual Property Rights, trademarks, trade names, service marks, trade dress, and other forms of corporate or product identification owned, controlled, obtained, or licensed by a party at any time prior to or after the Term, or arising from development of Technology created independently of this Agreement.

 

1.6.

BVL2 PIC means the LiDAR TRX photonic integrated circuit for the BVL2 Program, which complies with the BVL2 Program documentation, and which is further detailed in an SOW.

 

1.7.

BVL2 Program means the program for the development of an external environment-sensing FMCW LiDAR sensor system for autonomous Automobiles or ADAS in Automobiles, intended to go into production by Mobileye in 2025, and which incorporates (among other components) a BVL2 PIC and grating and mirrors and includes packaging, and TEFL engineering samples.

 

1.8.

Co-Develop means to engage in joint technical co-design and co-product development with a contractual commitment for Intel engineering resources and high-volume production, and Co-Developed has a corresponding meaning.

 

 

1.9.

Conceived means formation in the mind of the inventor(s) of a definite, complete, and operative Invention, as it may be practiced, and Conception has a corresponding meaning.

 

1.10.

Confidential Information is the information defined as confidential in the CNDA and RUNDA between the parties.

 

1.11.

Control or Controlled means directly or indirectly owning or having voting control over more than fifty percent (50%) of the outstanding securities entitled to vote for the election of directors or similar managing authority of an entity, or otherwise having the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body of an entity.

 

1.12.

Copyrights means all copyrights, copyright applications, copyright registrations, and any analogous or related right arising under statutory or common law, anywhere in the world, Including any rights from laws implementing the European Database Directive 96/9/EC.

 

1.13.

CNDA means the corporate non-disclosure agreement between the parties.

 

1.14.

Created means collected, Conceived, created, authored, developed, or generated.

 

1.15.

CVL PIC is an XVL PIC that immediately follows the BVL2 PIC and is intended for sale in 2027.

 

1.16.

CVL Program means a program for the development of an external environment-sensing FMCW LiDAR sensor system for autonomous Automobiles or ADAS in Automobiles, which incorporates (among other components) a CVL PIC and grating and mirrors, as further agreed by the parties.

 

1.17.

Day means a day other than a Friday, Saturday, Sunday or public holiday in Israel and California when banks in Tel Aviv and California are open for business.

 

1.18.

DRA means the Development and Reimbursement Agreement between the parties dated 3 December 2018.

 

1.19.

FMCW means frequency-modulated continuous wave.

 

1.20.

Force Majeure Event means an event beyond a party’s reasonable control. A Force Majeure Event that is continuous, but changes in severity or impact, may constitute more than one Force Majeure Event. For example, Covid-19-related issues can be fluid and newly imposed restrictions or warnings, or travel inaccessibility, may cause a new Force Majeure Event to occur. A Force Majeure Event includes the following:

 

1.20.1.

an act of God (whether or not caused by human action), such as earthquake, fire, flood, hurricane, mudslide, bacterial or viral outbreak, pandemic, epidemic, or other outbreak of communicable disease (including Covid-19 and its variants and mutations), tornado, tsunami, volcanic activity, wildfire, and other natural disasters;

 

 

1.20.2.

an act of a government agency or civil or military authority, or civil disturbance, such as civil war, embargo, insurrection, martial law, military action, order, ordinance, or regulation (including any officially declared emergency or any closing or limiting business operations, travel, or use of private or public transportation or other mobility), rebellion, revolution, riot, and war;

 

1.20.3.

a malicious act or damage, such as sabotage, terrorism, vandalism, or cyberattacks;

 

1.20.4.

an accident, such as one involving an aircraft, motor vehicle, ship, or train, or any chemical release, collision, explosion, fire, radiation or radioactive contamination, or a negligent act causing damage;

 

1.20.5.

a protracted failure of an air, gas, water, or electrical or other energy source, or of a broadband, radio or television broadcast, cellular, internet, satellite, telephone, or other communication system;

 

1.20.6.

production or supply-chain disruption, such as breakdown of plant, equipment, or machinery, default of supplier or subcontractor, inability to secure transportation, shortage of supply or delay in delivery by vendor, strike, lockout, or other labor dispute or stoppage (whether involving its own workforce or a supplier or subcontractor); or

 

1.20.7.

other events of like nature.

 

1.21.

General Project Technology means Project Technology that is not LiDAR Foreground Technology, System Technology, or LiDAR Transitional Technology.

 

1.22.

Identified LiDAR Technology means LiDAR Background Technology or LiDAR Foreground Technology specified by Intel in an SOW as available for internal use by Mobileye for the Project.

 

1.23.

Including, whether capitalized or not means including without limitation.

 

1.24.

Initial Product means an external environment-sensing FMCW LiDAR sensor system for autonomous Automobiles or ADAS in Automobiles (comprising, as applicable, hardware, software and firmware), which includes (among other components) a BVL2 PIC and grating and mirrors.

 

1.25.

Intel Entities means Intel and its Subsidiaries (other than the Mobileye Entities).

 

1.26.

Intellectual Property Rights or IPR means all intellectual property rights, Including Copyrights, Patent Rights, and Trade Secret Rights, but excluding trademarks, trade names, service marks, trade dress, or other forms of corporate or product identification.

 

1.27.

Invention means an invention of a process, machine, manufacture, or composition of matter, or improvement.

 

1.28.

Invention Information means information that: (A) describes inventorship and the inventive aspects of an Invention or its operation; and (B) is confidential and not generally known in the industry.

 

 

1.29.

IPO Date means the date on which Mobileye Global Inc., the indirect parent of Mobileye, makes an initial public offering of its Class A common stock pursuant to a Registration Statement on Form S-1 under the Securities Act of 1933, as amended.

 

1.30.

Jointly-Conceived means when Personnel of both parties conceive of at least one inventive aspect of an Invention as determined under U.S. patent law standards.

 

1.31.

LiDAR Background Technology means:

 

1.31.1.

Intel’s existing LiDAR technology that is described in Schedule 5A; and

 

1.31.2.

the LiDAR Transitional Technology.

 

1.32.

LiDAR Foreground Technology means:

 

1.32.1.

any modification to or improvement of the LiDAR Background Technology, which is Created during the Term;

 

1.32.2.

any Technology Created during the Term (other than LiDAR Transitional Technology) embodied in:

 

(a)

the BVL2 PIC; or

 

(b)

any other generation of the LiDAR PIC which is a derivative of the BVL2 PIC or is based on (i) LiDAR Background Technology or modifications thereof, or (ii) Project Technology referred to in Section 1.32.3;

 

1.32.3.

any Project Technology of any type or category that is identified in Schedule 5A or Schedule 5B or which is in the same field as any of the Inventions in Schedule 5C; or

 

1.32.4.

any Project Technology Solely-Created by Personnel of Intel, or jointly Created by Personnel of both parties, in each case after the IPO Date, that is:

 

(a)

system design and system architecture of an FMCW LiDAR sensor system; or

 

(b)

system software and system algorithms for an FMCW LiDAR sensor system.

 

1.33.

LiDAR Non-Compete Term means a period that begins on the Effective Date and ends the earlier of:

 

1.33.1.

five years after the Effective Date;

 

1.33.2.

three years from the date when Intel no longer exercises Control over Mobileye or its Affiliates;

 

1.33.3.

the date on which Mobileye cancels the Initial Product or any Subsequent Product development;

 

 

1.33.4.

the day after the last day of a Suspension notified to Intel under Section 19.6.2 or 19.6.3 or the date on which Section 19.6.3(c) applies;

 

1.33.5.

the date on which Intel properly terminates this Agreement for Mobileye’s material breach;

 

1.33.6.

the date on which Mobileye terminates this Agreement (other than properly for Intel’s material breach); or

 

1.33.7.

the date on which Mobileye commences work to manufacture any PIC (other than a BVL2 PIC or an XVL PIC) with any third party.

 

1.34.

LiDAR Team means the personnel formerly employed or contracted by Intel, who transferred to Mobileye to work on LiDAR Technology.

 

1.35.

LiDAR Transitional Technology means all Technology Created, solely or jointly with Intel, by:

 

1.35.1.

the LiDAR Team before the IPO Date; or

 

1.35.2.

any other Mobileye Personnel in the course of their work on any silicon photonics-based LiDAR sensor, prior to the IPO Date;

 

in each case where the Technology is: (a) of any type or category that is identified in Schedule 5A or Schedule 5B; (b) in the same field as any invention in Schedule 5C; (c) system design and system architecture of a LiDAR sensor; or (d) system software and system algorithms for a FMCW LiDAR sensor.

 

1.36.

Mobileye Entities means Mobileye Global Inc. and its Subsidiaries and any entity which becomes a Subsidiary of Mobileye Global Inc. after the Effective Date.

 

1.37.

Non-Selecting Party means a party who does not select the Project Invention by the process described in Section 12.3.

 

1.38.

Patent Rights means all patent rights in classes and types of utility and design patents applied for and issued (Including substitutions, continuations, continuations-in-part, divisions, reissues, re-examinations, extensions, renewals and industrial design registrations), anywhere in the world.

 

1.39.

Personnel means a party’s and its Affiliates’ employees, agents, contractors, and subcontractors.

 

1.40.

PIC means photonics integrated circuit.

 

1.41.

Project means:

 

1.41.1.

the project between the parties for the design, development, manufacture, marketing, and sale of the BVL2 PIC, grating and mirrors for the Initial Product under this Agreement; and

 

1.41.2.

any other project between the parties for the design, development, manufacture, marketing, and sale of any XVL PIC, grating and mirrors for any Subsequent Product that is agreed by the parties pursuant to Section 5.1 of this Agreement, the work for which in each case is further described in the SOWs.

 

 

1.42.

Project Invention means Project Technology that is an Invention.

 

1.43.

Project IPR means Copyrights, Trade Secret Rights and Project Patent Rights, to Project Technology.

 

1.44.

Project Patent Rights means all Patent Rights from any patent application filed by a party that claims a Project Invention.

 

1.45.

Project Technology means Technology which is Created by Personnel of one or both parties for a Project during the Term, under an SOW.

 

1.46.

RUNDA means any restricted use non-disclosure agreement between the parties.

 

1.47.

Selecting Party means a party who selects a Project Invention by the process described in Section 12.3.

 

1.48.

Solely-Authored means when only Personnel of one party authors a work and it is not intentionally combined with the work of the other party as part of a unitary work.

 

1.49.

Solely-Collected means when only Personnel of one party collects or creates information (Including data of any kind in any format but excluding works of authorship) that is Project Technology.

 

1.50.

Solely-Conceives or Solely Conceived means when only Personnel of one party contributes to the Conception of a Project Invention.

 

1.51.

Solely-Created means Solely-Conceived for Project Inventions, Solely-Authored for works of authorship, or Solely-Collected for information.

 

1.52.

Statement of Work or SOW means a statement of work under this Agreement, as further described in Section 2.1.

 

1.53.

Subsidiary means, as to any Person (defined below), a corporation, limited liability company, joint venture, partnership, trust, association, or other entity in which such Person:

 

1.53.1.

beneficially owns, either directly or indirectly, more than fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined equity interests, or (iii) the capital or profits interest, in the case of a partnership; or

 

1.53.2.

otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body,

 

where a “Person” is any individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including any governmental authority.

 

 

1.54.

Subsidiary Agreement means the agreement between Intel Corporation and Intel Subsidiaries dated March 4, 2014, to which Mobileye acceded by an agreement dated August 8, 2017.

 

1.55.

Substantially Similar Product means a PIC for an external environment-sensing FMCW LiDAR sensor system for (a) ADAS in Automobiles or (b) autonomous Automobiles, in each case which both:

 

1.55.1.

implements a PIC layout that is substantially similar to the BVL2 PIC; and

 

1.55.2.

has a 28 channel count only.

 

1.56.

Subsequent Product means an external environment-sensing FMCW LiDAR sensor system for autonomous Automobiles or ADAS in Automobiles, (comprising, as applicable, hardware, software and firmware) which includes (among other components) an XVL PIC and grating and mirrors.

 

1.57.

System Technology means any Project Technology (other than LiDAR Foreground Technology) which is Solely-Created between the IPO Date and the last day of the Term, by Mobileye Personnel, that is:

 

1.57.1.

system design and system architecture of an FMCW LiDAR sensor system; or

 

1.57.2.

system software and system algorithms for an FMCW LiDAR sensor system.

 

1.58.

Technology means all information (Including ideas, plans, know-how, data, algorithms, models, discoveries, Inventions, processes, and methods); tangible embodiments (Including hardware, devices, machinery, equipment, tools, apparatus, prototypes, samples, and compositions), and works of authorship (Including documents, specifications, reports, presentations, software, firmware, RTL code, libraries, databases, compilations, designs, schematics, and photographs), in any format on any media.

 

1.59.

Term means the term of this Agreement as described in Section 19.1.

 

1.60.

Trade Secret Rights means all trade secret rights or any analogous right, arising under statutory or common law, anywhere in the world.

 

1.61.

XVL PIC means any generation of the LiDAR photonic integrated circuit other than the BVL2 PIC which is described in an SOW and:

 

1.61.1.

is a derivative of the BVL2 PIC; or

 

1.61.2.

is based on or includes LiDAR Background Technology or LiDAR Foreground Technology.

 

1.62.

XVL Program means a program for the development of an external environment-sensing FMCW LiDAR sensor system for autonomous Automobiles or ADAS in Automobiles, which incorporates (among other components) an XVL PIC and grating and mirrors, as further agreed by the parties.

 

 

2.

Project work, funding, and documentation

 

2.1.

Statements of Work. The parties will describe and allocate responsibility for the design, development, and manufacturing work of a Project and the marketing and pricing of the Initial Product (and any Subsequent Product agreed under Section 5.1) in sequential statements of work covering the duration of each Project. Each SOW:

 

2.1.1.

must be substantially in the form of Schedule 1;

 

2.1.2.

when in relation to the Project for the Initial Product, will be subject to the provisions in Section 3 and Section 4;

 

2.1.3.

when in relation to the Projects for any Subsequent Products, will be subject to the provisions in Section 5.2 and Section 5.3; and

 

2.1.4.

must be signed by authorized representatives of both parties.

 

2.2.

Project funding. Schedule 2 sets out the joint funding for the BVL2 Program and the joint funding which will apply to the CVL Program if an agreement under Section 5.4 is concluded. Any necessary payment terms regarding project funding will be agreed in writing by the parties prior to any payment taking place.

 

2.3.

SOW agreement process. SOWs will be agreed by the parties in accordance with the following process:

 

2.3.1.

either party may propose a draft SOW (“Proposed SOW”) and will do so in a timely manner, having regard to the need to obtain the input and cooperation of the other and the need to execute an SOW prior to its commencement date;

 

2.3.2.

the parties will meet as necessary to discuss and revise the Proposed SOW in a timely manner; and

 

2.3.3.

if the parties cannot agree on the Proposed SOW the dispute resolution process in Section 20 will apply.

 

2.4.

Project management. The parties will comply with Schedule 7 which sets out the procedures and mechanisms for Project management (Including change management).

 

3.

Outline of Initial Product manufacturing responsibilities

 

3.1.

BVL2 PIC, grating and mirror wafer manufacture.

 

3.1.1.

Mobileye is not licensed to manufacture (or have manufactured) the BVL2 PIC or grating or mirror wafers. Subject to Section 7, Mobileye may not disclose any Intel Confidential Information (including any information related to the BVL2 PIC) to any third party without Intel’s prior express written agreement.

 

 

3.1.2.

Intel will exclusively manufacture the BVL2 PIC and grating and mirror wafers for the Initial Product, provided that Intel will agree to license a foundry which it wholly-owns (“Wholly-Owned Foundry”) to manufacture the BVL2 PIC (and the grating and mirror wafers if applicable) for the Initial Product, only if Mobileye requests that the parties explore the option for the Wholly-Owned Foundry to manufacture the BVL2 PIC, and all of the following conditions are met:

 

(a)

the parties’ joint financial analysis (which must include consideration of and accounting for Intel’s and Mobileye's costs and contributions) concludes that it is more cost-effective for Intel and Mobileye to enable the Wholly-Owned Foundry to manufacture the BVL2 PIC (and grating and mirror wafers if applicable); and

 

(b)

Intel concludes an agreement with the Wholly-Owned Foundry that is sufficiently protective of Intel’s confidential information, the LiDAR Background Technology, and LiDAR Foreground Technology, and sets out the commercial and legal aspects of licensing and manufacturing the BVL2 PIC for the Initial Product, (and grating and mirror wafers if applicable), Including any licenses of Intel Technology which Intel considers are necessary to enable the development and manufacture of the BVL2 PIC (and grating and mirror wafers if applicable) for the Initial Product.

 

3.1.3.

If the parties decide (each in their sole discretion) that it would be mutually beneficial to explore other manufacturing options, they may, by separate written agreement signed by their authorized representatives, agree that a third-party foundry which is not a Wholly-Owned Foundry will manufacture the BVL2 PIC (and grating and mirror wafers if applicable) for the Initial Product. The separate written agreement must be sufficiently protective of Intel’s confidential information, the LiDAR Background Technology, and LiDAR Foreground Technology, and set out the commercial and legal aspects of licensing and manufacturing the BVL2 PIC (and grating and mirror wafers if applicable), Including any licenses of Intel Technology which Intel considers are necessary to enable the development and manufacture of the BVL2 PIC (and grating and mirror wafers if applicable) for the Initial Product.

 

3.2.

BVL2 PIC and grating and mirrors sale. The price of the BVL2 PIC and the grating and mirrors for the Initial Product is described in Schedule 4.

 

3.3.

BVL2 PIC and grating and mirror wafer manufacture. Other than the manufacturing of the BVL2 PIC and the grating and mirror wafers, Mobileye will manufacture and assemble (or have manufactured and assembled) all components of the Initial Product. Mobileye will integrate (or procure the integration of) the BVL2 PIC, grating, and mirrors into the Initial Product, subject to compliance with Section 7.

 

4.

Outline of Initial Product marketing responsibilities

 

4.1.

Initial Product marketing. The parties intend that Mobileye will exclusively market and sell the Initial Product. The parties will agree in writing on annual plans for sales and marketing of the Initial Product in accordance with Section 4.2.

 

 

4.2.

BVL2 Program restrictions. Mobileye may only:

 

4.2.1.

use the BVL2 PIC, grating and mirrors in an Initial Product as integrated (by or for Mobileye) into an autonomous Automobile or ADAS solution in an Automobile, that Mobileye operates or sells for mobility-as-a-service;

 

4.2.2.

sell the BVL2 PIC, grating and mirrors to an automotive Tier 1 supplier:

 

(a)

for integration into an Initial Product for autonomous Automobile or ADAS in an Automobile, for an automotive OEM;

 

(b)

for sale to an automotive OEM for integration into an Initial Product for autonomous Automobiles or ADAS in Automobiles;

 

4.2.3.

sell the BVL2 PIC, grating and mirrors to an automotive OEM for integration into an Initial Product for autonomous Automobiles or ADAS in Automobiles; and

 

4.2.4.

sell the BVL2 PIC, grating and mirrors in an Initial Product to other third parties in other markets agreed in writing signed by authorized representatives of the parties.

 

4.3.

Gross Profit Sharing. For each Initial Product or components thereof sold by Mobileye, Mobileye will pay Intel a share of the gross profit as described in Schedule 3. Any necessary payment terms regarding payments for the gross profit sharing will be agreed by the parties prior to any payment taking place, in a written agreement signed by the authorized representatives of each party.

 

5.

Next generation products

 

5.1.

Prior agreement required. The parties may, by amending this Agreement, agree to undertake the design, development, manufacture, and marketing of a Subsequent Product, such amendment to include:

 

5.1.1.

internal development licenses to Mobileye for LiDAR Background Technology and LiDAR Foreground Technology solely for the development of the Subsequent Product;

 

5.1.2.

the details of any joint funding of and profit share for the Subsequent Product (provided that as of the Effective Date the parties have only agreed the funding arrangement and gross profit-sharing model that will apply if an agreement for CVL PIC is concluded under Section 5.4, and any further funding arrangements would be subject to mutual agreement);

 

5.1.3.

annual plans for the sales and marketing of the Subsequent Product; and

 

5.1.4.

an SOW for the Project which describes the XVL PIC.

 

 

5.2.

XVL PIC sales and usage restrictions. The provisions of Section 4.2 will apply to any XVL PIC and any Subsequent Product as if the references in that Section to the BVL2 PIC and Initial Product were references to the XVL PIC and Subsequent Product respectively.

 

5.3.

Manufacture of XVL PIC.

 

5.3.1.

Mobileye is not licensed to manufacture (or have manufactured) any XVL PIC or grating and mirror wafers. Subject to Section 7, Mobileye may not disclose any Intel Confidential Information (including any information related to the XVL PIC) to any third party without Intel’s prior express written agreement.

 

5.3.2.

Section 3.1.2 and Section 3.1.3 shall apply to the manufacture of the XVL PIC as if the references in that Section to the BVL2 PIC and Initial Product were references to the XVL PIC and Subsequent Product respectively.

 

5.4.

CVL. Without limiting the generality of Section 5.1 and Section 5.3, the parties commit to pursuing a collaboration for the design and development, and Intel’s manufacture, of the CVL PIC and grating and mirror wafers, and to negotiating in good faith an agreement for the design and development, and Intel’s manufacture, of the CVL PIC, and grating and mirror wafers, in each case for a Subsequent Product. Schedule 4 sets out the pricing framework for the CVL PIC, and grating and mirror wafers, which will apply if the agreement referred to in this Section is concluded.

 

6.

Sales Terms.

 

6.1.

Applicable terms. Any sale by Intel to Mobileye of the BVL2 PIC, XVL PIC, and grating and mirrors (in this Section 6, each, a “Product”), will be on terms to be agreed in writing by the parties, and if no agreement is reached prior to the sale, then Intel’s standard terms and conditions of sale current at the time of sale will apply.

 

6.2.

Additional services. In the event that Mobileye requests Intel to perform additional services (Including additional quality, testing and reliability services) which Intel would not normally perform for its other customers of products that are similar to the Products, then if Intel agrees in writing to perform the services:

 

6.2.1.

Mobileye will pay the cost for any capital expenditure required to acquire tooling or other equipment for the agreed services, which costs the parties have agreed in writing (“Mobileye-Only Costs”); or

 

6.2.2.

Intel may, in its sole discretion, agree to pay the Mobileye-Only Costs, in which case:

 

(a)

the Mobileye-Only Costs will be added to the costs of the relevant Products sold to Mobileye; and

 

(b)

if Mobileye terminates the Agreement or the Project or stops purchasing the relevant Products prior to Intel’s full recovery of the Mobileye-Only Costs, Mobileye will pay Intel the remaining portion of the Mobileye-Only Costs which Intel did not recover.

 

 

6.3.

Non-cancellable, non-reschedulable orders. Unless otherwise expressly agreed in the terms agreed under Section 6.1, purchase orders will be non-cancellable and non-reschedulable (“NCNR”), at a minimum, during the 6 months lead time to Product delivery. Intel may by notice to Mobileye change the NCNR period in its sole discretion depending on market conditions and supply availability.

 

7.

Subcontractors

 

7.1.

Use of subcontractors. Subject to Section 7.2, each party may permit its subcontractors (Including ODMs) and agents (together, “Subcontractors”) to perform work for a Project on its behalf, provided that the subcontracting party:

 

7.1.1.

ensures that, before beginning the work, the Subcontractor signs a confidentiality and restricted use undertaking that is no less protective of the other party than this Agreement (Including any applicable requirements in the CNDA or RUNDA) and, where the Subcontractor is assembling, integrating, or manufacturing the Initial Product or any Subsequent Product for Mobileye, the Subcontractor must also comply with all measures reasonably required by Intel to adequately protect Intel’s Confidential Information and Technology; and

 

7.1.2.

is and remains responsible for all acts and omissions of its Subcontractors as if the acts and omissions were the subcontracting party’s own.

 

7.2.

No subcontracting of certain work. Mobileye may not subcontract or otherwise outsource the design or manufacturing of the BVL2 PIC or any XVL PIC, or (without limiting the foregoing) any work that is intended to be done by Intel under this Agreement.

 

8.

Background IPR.

 

8.1.

Background IPR and DRA rights. Other than in respect of Mobileye’s assignments to Intel of its IPR to LiDAR Transitional Technology under Section 10.1, nothing in this Agreement:

 

8.1.1.

assigns or transfers any ownership interest in a party’s Background IPR; or

 

8.1.2.

affects any rights that accrued to a party under the DRA prior to its termination.

 

8.2.

Physical property. Nothing in this Agreement transfers a party’s ownership of any physical property that it discloses or provides to the other party under this Agreement.

 

9.

System Technology.

 

9.1.

System Technology. Mobileye will solely own all Project IPR in System Technology.

 

 

9.2.

Development License. Mobileye hereby grants to Intel and its Affiliates a world-wide, royalty-free, fully paid-up, non-exclusive, non-sublicensable license under Mobileye’s Trade Secret Rights and Copyrights to System Technology, to the extent to which it is delivered to Intel by Mobileye under this Agreement, to use, copy, and modify the System Technology solely for a Project during the Term. Intel may only disclose the System Technology to its subcontractors under Section 7.

 

10.

LiDAR Background Technology

 

10.1.

Ownership. Intel owns and retains ownership of all IPR in the LiDAR Background Technology.

 

10.2.

LiDAR Transitional Technology.

 

10.2.1.

Assignment. Mobileye, on behalf of itself and its Affiliates and its Personnel, hereby assigns and agrees to assign to Intel all of its and their right, title, and interest to IPR to LiDAR Transitional Technology without any duty of accounting, and without any duty to obtain the consent of or pay any royalties to Mobileye or its Affiliates to exploit, license, or enforce such rights.

 

10.2.2.

Invention information. Mobileye will:

 

(a)

promptly disclose all Inventions in the LiDAR Transitional Technology in writing to Intel (Including all the information set out in Schedule 6A as if references in that Schedule to General Project Inventions were references to Inventions in LiDAR Transitional Technology); and

 

(b)

track and provide to Intel all Invention Information relating to the Inventions in the LiDAR Transitional Technology.

 

10.2.3.

Patent filing. Intel may, in its sole discretion, file patent applications claiming the Patent Rights for Inventions in the LiDAR Transitional Technology and may file anywhere in the world, solely in its own name, and at its own expense. Intel need not file any patent application for any such Invention and need not maintain any patent application it has filed.

 

10.2.4.

License to Non-Assignable IPR. If any part of the assignment under Section 10.1.1 is not possible for any reason, Mobileye on behalf of itself and its Affiliates and its Personnel, hereby grants to Intel and its Affiliates, a world-wide, perpetual, irrevocable, non-terminable, royalty-free, fully paid-up, exclusive (including as to Mobileye and its Affiliates), sublicensable, transferable license under its and their unassigned IPR to LiDAR Transitional Technology to use, disclose, modify, distribute, perform, display, make, have made, license, offer to sell, sell, import, and otherwise dispose of LiDAR Transitional Technology.

 

 

11.

LiDAR Foreground Technology Ownership

 

11.1.

Ownership. Intel solely owns all IPR to LiDAR Foreground Technology.

 

11.2.

Assignment. Mobileye, on behalf of itself and its Affiliates and its Personnel, hereby assigns and agree to assign to Intel all of its and their right, title, and interest to IPR to LiDAR Foreground Technology without any duty of accounting, and without any duty to obtain the consent of or pay any royalties to Mobileye or its Affiliates to exploit, license, or enforce such rights.

 

11.3.

License to Non-Assignable IPR. If any part of the assignment under Section 11.2 is not possible for any reason, Mobileye, on behalf of itself and its Affiliates and its Personnel, hereby grants to Intel and its Affiliates, a world-wide, perpetual, irrevocable, non-terminable, royalty-free, fully paid-up, exclusive (including as to Mobileye and its Affiliates), sublicensable, transferable license under its and their unassigned IPR to LiDAR Foreground Technology to use, disclose, modify, distribute, perform, display, make, have made, license, offer to sell, sell, import, and otherwise dispose of LiDAR Foreground Technology. No license under Mobileye Background IPR is granted under this Section 11.3.

 

11.4.

Invention information. Mobileye will:

 

11.4.1.

promptly disclose all Inventions in the LiDAR Foreground Technology in writing to Intel (Including all the information set out in Schedule 6A as if references in that Schedule to General Project Inventions were references to Inventions in LiDAR Foreground Technology); and

 

11.4.2.

track and provide to Intel all Invention Information relating to all Inventions in the LiDAR Foreground Technology.

 

11.5.

Patent filing. Intel may, in its sole discretion, file patent applications claiming the Patent Rights for Inventions in the LiDAR Foreground Technology and may file anywhere in the world, solely in its own name, and at its own expense. Intel need not file any patent application for any such Invention and need not maintain any patent application it has filed.

 

12.  General Project Technology.

 

12.1.

Mobileye Solely-Created General Project Technology. Mobileye solely owns all Project IPR to General Project Technology that is Solely-Created by its Personnel.

 

12.2.

Intel Solely-Created General Project Technology. Intel solely owns all Project IPR to General Project Technology that is Solely-Created by its Personnel.

 

12.3.

Ownership of General Project Technology Patent Rights. The parties will meet as necessary to allocate ownership of Patent Rights to Jointly-Conceived Project Inventions that are General Project Technology by the following selection process. Upon submission of an Invention disclosure for a Jointly-Conceived Project Invention that is General Project Technology, the parties will determine which party will select the first Jointly-Conceived Project Invention. The parties will alternate turns to select subsequent Jointly-Conceived Project Inventions that are General Project Technology until all are selected, such selections to be completed by no later than 6 months after the end of the Term.

 

 

12.4.

Assignment. The Non-Selecting Party, on behalf of itself and its Affiliates and its Personnel, hereby assigns and agrees to assign to the Selecting Party all its and their right, title, and interest in its and their Project Patent Rights in the Project Invention selected by the Selecting Party under Section 12.3 without any duty of accounting, and without any duty to obtain the Non-Selecting Party’s (or its Affiliates’) consent or to pay any royalties to the Non-Selecting Party or its Affiliates to exploit, license, or enforce such rights. The Selecting Party will exclusively own all Project Patent Rights in the Project Invention selected under Section 12.3.

 

12.5.

Joint General Project Technology Patent License. The party that solely owns Project Patent Rights to a Jointly-Conceived Invention which is General Project Technology (a “General Joint Invention”) hereby grants to the other party and its Affiliates, a world-wide, perpetual, irrevocable, non-terminable, royalty-free, fully paid-up, non-exclusive, non-sublicensable (except as permitted under the Subsidiary Agreement), non-transferable (except as permitted by Section 23.3 (Assignment)) license under its Project Patent Rights in General Joint Inventions to (A) make, use, offer to sell, sell, import, and otherwise exploit and dispose of any General Joint Invention that is embodied in or used in the other party’s products or services, and (B) practice and have practiced any General Joint Invention in that party’s manufacturing or services.

 

12.6.

Ownership of Other General Project IPR. The parties will jointly own the Copyrights and Trade Secret Rights in General Project Technology that is not Solely-Created. Each party hereby assigns (on behalf of itself and its Affiliates and Personnel) to the other party an equal, undivided ownership interest in the Copyrights and Trade Secret Rights in works that are General Project Technology that are not Solely-Created.

 

12.7.

Rights. Subject to the confidentiality restrictions in Section 15.3, regardless of the ownership of the Trade Secret Rights and Copyrights under national law, each party, may use, modify, disclose, reproduce, perform, display, disclose, and distribute General Project Technology described in Section 12.6 as if the Trade Secret Rights and Copyrights in that General Project Technology were solely owned by that party, without any duty of accounting and without any duty to obtain the other party’s consent or to pay any compensation to the other party in order to exploit, license, assign, or enforce those rights.

 

13.

License for development of Initial Product.

 

13.1.

Express licenses only. Neither party grants any implied licenses to the other party under any legal theory. The only licenses granted in this Agreement are the express licenses in Sections 9.2, 10.2, 11.3, 12.5 and 13.2. Without limiting the foregoing, neither party is licensed to modify the other party's Technology or use it to create new Technology, unless and to the extent expressly stated in this Agreement. Nothing in this Agreement requires or will be treated as requiring either party to grant any additional license.

 

13.2.

License to Identified LiDAR Technology. Subject to the terms of this Agreement, Intel hereby grants to Mobileye and its Affiliates a world-wide, royalty-free, fully paid-up, non-exclusive, non-sublicensable, non-transferable (except as permitted by Section 23.3 (Assignment)) license during the Term, under Intel’s Trade Secret Rights and Copyrights to Identified LiDAR Technology to use, copy, and modify the Identified LiDAR Technology only for development of the Initial Product only when used and sold in accordance with Section 4.2. Identified LiDAR Technology licensed under this Section 13.2 may only be disclosed to subcontractors under Section 7.

 

 

13.3.

Patent Filing Restriction.

 

13.3.1.

During the development of the Initial Product and any Subsequent Products, and for five years from the completion of the last Subsequent Product, Mobileye must not file a patent application based on or using the LiDAR Background Technology, LiDAR Foreground Technology, or information in the LiDAR patents set out in Schedule 5C, except with the prior written approval of the Director of the Intel Patent Group.

 

13.3.2.

Mobileye may not disclose any Intel Confidential Information that is LiDAR Background Technology or LiDAR Foreground Technology in any patent application at any time without written permission from the Director of the Intel Patent Group.

 

13.3.3.

During the period referred to in Section 13.3.1, Mobileye must disclose any LiDAR Invention to Intel upon submission to Mobileye’s docketing system and consult with Intel prior to filing any LiDAR patent application to remove any Intel Confidential Information or Technology disclosed in the patent application.

 

13.4.

Patent Defense. If Mobileye or its Affiliate is sued by a practicing company for infringement of a LiDAR patent, Intel will assist Mobileye or its Affiliate in accordance with the terms and procedures in Schedule 8.

 

14.

LiDAR Non-Compete.

 

14.1.

Scope of non-compete. During the LiDAR Non-Compete Term, Intel will not: (a) sell to a customer other than Mobileye and its Affiliates a PIC that implements the specific BVL2 PIC layout design for an external environment-sensing FMCW LiDAR sensor system for ADAS in Automobiles or autonomous Automobiles; or (b) sell to a customer other than Mobileye and its Affiliates a Substantially Similar Product. Intel may Co-Develop a Substantially Similar Product with a third party, subject to the third-party agreeing not to sell the Co-Developed Substantially Similar Product during the LiDAR Non-Compete Term.

 

14.2.

No publicity. During the LiDAR Non-Compete Term, Intel will not make or approve a public announcement mentioning Intel’s name, regarding an Intel Co-Developed, external environment-sensing FMCW LiDAR sensor system for Automobiles.

 

14.3.

No restriction on acquired companies or foundry services. Except for Section 14.1(a), nothing in this Section 14 applies to any company acquired by Intel at any time or to Intel’s foundry services

 

 

14.4.

No further restrictions. Other than the express restrictions in this Section 14 and subject to Mobileye’s right to exclusively market the Initial Product if so agreed under Section 4.1 and in accordance with Section 4.2, nothing precludes Intel’s collaboration, disclosure, development, manufacturing, marketing, sale, or other exploitation of the whole or any part of the Initial Product or any Subsequent Product or any associated LiDAR technology.

 

15.

Patent filing provisions

 

15.1.

Schedule 6. The parties will comply with the provisions of Schedule 6.

 

15.2.

Cooperation in Applying for Patents. Each party who is assigning Patent Rights will assist the assignee by doing the following promptly when requested at its own expense: (A) execute and deliver assignment documents; (B) cause its Personnel, Including inventors of Inventions, to cooperate with filing patent applications, without charging the other party for the time of its Personnel; (C) pay any compensation relating to patent filing or use of its Personnel’s invention rights without right of reimbursement.

 

15.3.

Confidentiality of Inventions. Without prejudice to Mobileye’s obligations under Section 13.3, the party that does not own the Patent Rights to an Invention under this Agreement will protect the Invention Information in the same manner it protects its own Confidential Information until the earlier of the date: (A) that is 5 years after the date of allocation of ownership of the Patent Rights under this Agreement; or (B) on which the information is no longer confidential, Including when a patent application for the Invention, if any, is published. A party that does not own the Patent Rights in an Invention may request that the other party provide a waiver in writing of the time requirement to maintain confidentiality.

 

16.

Confidentiality.

 

16.1.

CNDA. The CNDA governs the exchange of information between the parties, save that the express trade secret licenses in this Agreement may allow the parties to use and disclose licensed information more broadly than the terms in the CNDA.

 

16.2.

RUNDA. The parties may also enter into a RUNDA for certain highly Confidential Information. Notwithstanding the license terms in this Agreement, the RUNDA terms will govern each party’s disclosure and protection obligations related to Confidential Information disclosed under a RUNDA.

 

16.3.

Third party information. Mobileye will also take reasonable measures to protect third party confidential information from disclosure that it receives through Intel, and Mobileye will fulfill all instructions from Intel for compliance with Intel’s agreements with third parties.

 

17.  Disclaimer and Limitation of Liability.

 

17.1.

Disclaimer. Except for the warranties expressly set forth in this Agreement, and subject to Section 17.5, each party and its Affiliates hereby expressly disclaims all representations and warranties, Including implied warranties of merchantability, non-infringement, and fitness for a particular purpose. Neither party makes any representations or warranties about the validity or enforceability of any IPR.

 

 

17.2.

Limitation of Liability. Except for claims described in Section 17.4, neither party or its Affiliates will be liable for indirect, incidental, exemplary, punitive, consequential, or special damages arising out of this Agreement, or any damages from the loss of profits, revenue, production, use, or data, whether direct or indirect and regardless of whether those damages arise in contract or tort or whether the parties are aware of the possibility of those damages.

 

17.3.

Liability cap. Except for claims described in Section 17.4 and Section 17.5, the aggregate liability of either party and its Affiliates arising out of or related to this Agreement, regardless of the form of any claim, action, or theory of liability (Including contract, tort, or statute), will not exceed the aggregate amounts paid or payable by Mobileye to Intel under this Agreement for development services. Multiple claims will not increase this limitation.

 

17.4.

Unlimited Liability. No limitation will apply to any claim of infringement of Intellectual Property Rights, breach of a license or confidentiality obligation Including Section 16, or any liability which cannot be limited under applicable law.

 

17.5.

Product warranties and liabilities. Intel’s standard terms and conditions of sale or any other terms agreed by the parties pursuant to Section 6 set forth the exclusive warranties, remedies, and liabilities applicable to the products sold by Intel to Mobileye.

 

18.

Notices and Approvals.

 

18.1.

Notices.

 

18.1.1.

Notices given or required to be given under this Agreement must be written and in English and sent to both the mailing and email address specified below along with a copy of this Agreement. Email delivery alone for a notice of breach of this Agreement or termination is insufficient. Paper copies must be sent by overnight courier or registered or certified mail, with online tracking information supplied by email to the recipient.

 

18.1.2.

Each notice is considered duly given 7 Days after being sent.

 

18.1.3.

When this Agreement specifies a time period for sending a notice, a day is any calendar day, unless Days are specified.

 

18.1.4.

Nothing in this Section 18 relates to service of process.

 

 

18.1.5.

Unless changed by notice, all notices must be addressed as follows:

 

Mobileye:

Intel:

MOBILEYE VISION TECHNOLOGIES LTD 13 Hartom St. Har Hotzvim, Jerusalem, Israel 9777513 Attn: Mobileye General Legal Counsel   With a copy, which will not be notice, to: legal@mobileye.com

INTEL CORPORATION   2200 Mission College Blvd. Santa Clara, CA 95054 Attn: General Counsel Reference ID: Miriam Ezrachi Technology and Services Agreement   With a copy, which will not be notice, to: Intel-Legal-Notices@intel.com   With an email copy, which will not be notice, to Jack Weast.   And with a copy, which will not be notice, to: Intel Corporation Post Contract Management, M/S FM1-53 1900 Prairie City Road Folsom, CA 95630 Email: post.contract.mgmt@intel.com

 

18.2.

Approvals. Where this Agreement provides that Intel’s written agreement or approval is required, then unless otherwise specified in the Agreement, such agreement or approval is a prior written agreement or approval, given either (a) in a written agreement signed by authorized representatives of the parties; or (b) expressly by an Intel Corporate Vice President or higher-grade executive.

 

19.

Termination.

 

19.1.

Term. This Agreement begins on the Effective Date, and unless terminated earlier in accordance with this Section 19, continues until the tenth anniversary of the Effective Date (“Initial Term”), and thereafter will be automatically extended for successive 24-month periods.

 

19.2.

Termination for Convenience. Either party may terminate the Agreement at any time for any reason by giving no less than 24 months’ prior written notice.

 

19.3.

Termination for Material Breach. Either party may terminate this Agreement or an SOW for a material breach. A notice must state the provisions that have been breached and the facts establishing a breach. Except for payment breaches, which must be cured within 30 Days of notice, and breaches which cannot be cured, the parties must follow the dispute resolution process in Section 20 and allow the breaching party an opportunity to cure before the Agreement or the SOW will terminate.

 

 

19.4.

Business exit by Intel. As of the Effective Date, Intel does not intend to shut down the factory operations for silicon photonics or sell or transfer the factory operation for silicon photonics to an unrelated third party (“Exit”) before the launch of the CVL PIC. However, if Intel decides to Exit:

 

19.4.1.

Intel must give Mobileye 24 months’ notice of its decision; and

 

19.4.2.

Mobileye may terminate this Agreement at any time during the first 6 months of the notice period in Section 19.4.1 by giving Intel 30 days’ notice.

 

19.5.

Obligations Following Intel’s Notice of Termination for Convenience or Exit. If Intel provides notice of termination for convenience under Section 19.2 or notice of an Exit under Section 19.4, and Mobileye has not terminated the agreement as set forth in Section 19.4.2, then with respect to Projects agreed in writing signed between the parties:

 

19.5.1.

Intel will timely enter into discussions with a third party with a view to the third party taking over the manufacturing of the BVL2 PIC for the Initial Product or the XVL PIC (including the CVL PIC) for the Subsequent Product (as the case may be), subject to Intel reaching agreement with the third party on contractual provisions acceptable to Intel (at Intel’s sole discretion reasonably exercised in good faith) and which (without limiting the foregoing):

 

(a)

are sufficiently protective of Intel’s confidential information and Technology;

 

(b)

set out the extent of and remuneration for Intel development services required by the third party to enable it to manufacture the BVL2 PIC or the XVL PIC (including the CVL PIC) (as the case may be); and

 

(c)

set out the commercial and legal aspects of licensing and manufacturing the BVL2 PIC or the XVL PIC (including the CVL PIC) (as the case may be), Including licenses of Intel Technology which Intel considers are necessary to enable the development and manufacture; and

 

19.5.2.

the parties will amend the Agreement to:

 

(a)

ensure that Mobileye has the necessary development licenses to LiDAR Background Technology and LiDAR Foreground Technology for the BVL2 PIC or the XVL PIC (including the CVL PIC) (as the case may be) to cover the period during which Intel is negotiating with the third-party manufacturer, and thereafter for the appropriate period, if the third-party manufacturing agreement is concluded; and

 

(b)

provide for termination of the licenses so extended if Intel gives notice of its determination that the third-party manufacturing agreement cannot be concluded, despite reasonable efforts to do so.

 

 

19.6.

Product development suspension and business exit by Mobileye.

 

19.6.1.

Exit. If Mobileye decides to exit the business of LiDAR sensor development or sale:

 

(a)

Mobileye must give Intel 12 months’ notice of its decision; and

 

(b)

Intel may terminate this Agreement by giving 30 days’ notice.

 

19.6.2.

Notice of suspension. If Mobileye intends to suspend the development of the Initial Product or any Subsequent Product for at least 6 months (such 6-month period, a “Suspension”), or if a Suspension has occurred, Mobileye must as soon as reasonably possible give prior notice to Intel specifying the date of the last day of the Suspension. Intel may terminate the relevant SOW immediately by notice on the day after the last day of the Suspension.

 

19.6.3.

Confirmation of suspected suspension. If Intel reasonably believes that Suspension (as defined above) has occurred or will occur, it may in writing request Mobileye’s confirmation, and Mobileye must within 10 Days of the request give Intel notice either denying the Suspension, or confirming the Suspension and specifying the date on which it began. Intel may terminate the relevant SOW immediately by notice:

 

(a)

if Mobileye confirms that the Suspension has occurred;

 

(b)

on the day after the last day of the Suspension; or

 

(c)

if Mobileye does not give Intel the notice referred to in this Section 19.6.3 within 10 Days of Intel’s request.

 

19.7.

Termination for Bankruptcy or Insolvency. This Agreement will terminate automatically and without notice if a party becomes the subject of any voluntary or involuntary insolvency, cession, liquidation, winding up, bankruptcy, reorganization, rearrangement, receivership, assignment for the benefit of creditors, or similar proceedings under applicable law, Including the U.S. Bankruptcy Code or any foreign equivalent.

 

19.8.

SOW Term. Subject to Sections 19.6 and 19.9.2, each SOW will be effective and binding on the respective parties for the term specified in the SOW (“SOW Term”), and termination of an SOW will be effective in accordance with the provisions of that individual SOW.

 

19.9.

General consequences of termination. If this Agreement expires or is terminated for any reason, then:

 

19.9.1.

the license in Section 13.2 immediately terminates and Mobileye will not have any further right to use any LiDAR Background Technology or LiDAR Foreground Technology;

 

19.9.2.

any SOWs then in force will terminate immediately; and

 

19.9.3.

termination of this Agreement will not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination.

 

 

19.10.

Effect of termination of SOW.

 

19.10.1.

Upon termination of this Agreement and subject to Section 19.10.2, each party will return or (at the owning party’s option) destroy all Technology of the other party disclosed or created for a Project and deactivate all access to the other party’s physical and electronic property.

 

19.10.2.

After termination of this Agreement, Mobileye may retain hardware products purchased from Intel and any Technology which the parties agree is necessary for support and maintenance of products sold to third parties.

 

20.  Dispute Resolution.

 

20.1.

Subject to Section 20.2, any dispute arising out of or relating to this Agreement, Including any allegation of a material breach other than an allegation related to non-payment, will be resolved as follows: A party will send notice of the dispute or material breach, Including a detailed description of the issues and relevant supporting documents. Management from each party will then try to resolve the dispute. If the parties do not resolve the dispute within 30 calendar days after the dispute notice, either party may send notice of a demand for mediation. The parties will then try to resolve the dispute with a mediator. If the parties do not resolve the dispute within 60 calendar days after the mediation demand, either party may begin litigation or the party alleging the material breach may terminate this Agreement.

 

20.2.

Either party may at any time may seek an injunction or other equitable remedies for misappropriation of trade secrets, breach of confidentiality obligations, or infringement of IPR, without complying with the process in Section 20.1.

 

21.

Survival. Sections 1, 3.1.1, 4.2, 4.3, 5.2, 5.3.1, 6.1, 6.2, 6.3, 7.1.2, 7.2, 8, 9.1, 10, 11, 12, 13.1, 13.3, 13.4, 14, 15, 16, 17, 18, 19.5, 19.9, 19.10, 20, 21, 22, and 23, and the Schedules and Exhibits to which they refer, will survive termination of this Agreement.

 

22.

Entire Agreement.

 

22.1.

This Agreement contains the complete and exclusive agreement between the parties concerning its subject matter, and supersedes all prior and contemporaneous agreements, understandings, representations, warranties, and communications between the parties relating to its subject matter.

 

22.2.

This Agreement Including its termination, has no effect on any signed non-disclosure agreements between the parties (Including the CNDA and RUNDAs), which remain in full force and effect as separate agreements according to their terms.

 

22.3.

The express provisions of this Agreement control over any course of performance, course of dealing, or usage of the trade inconsistent with any of the provisions of this Agreement.

 

 

23.

General.

 

23.1.

Amendments. No amendment or modification to this Agreement will be effective unless in writing and signed by authorized representatives of the parties.

 

23.2.

Anti-Reliance. Each party agrees that, in entering into this Agreement, (A) it has relied solely on the results of its own investigation of the facts and circumstances, its own business judgment, and the express terms and conditions in this Agreement, and (B) it has not relied on and is not entitled to rely on any oral or written understanding, condition, representation, warranty, or communication that is not expressly set forth in this Agreement.

 

23.3.

Assignment. Subject to Section 23.4, neither party may assign any rights or delegate any duties under this Agreement, in whole or in part, whether by contract, operation of law or otherwise without the prior written consent of the other party, and any attempt to assign any rights, duties, or obligations without the other party’s written consent will be a material breach of this Agreement and will be null and void. This Agreement will bind and inure to the benefit of the respective parties and their permitted successors and assigns.

 

23.4.

Permitted assignments. Consent is not required under Section 23.3 for Intel to assign or delegate all or any of its rights or obligations under this Agreement to any Intel Entity.

 

23.5.

Conflicts Among Documents. If there is any conflict between the provisions of Sections 1 through 23 of this Agreement and any term in a document included or referenced in this Agreement, the following order of precedence for determining which terms will control is: (A) any RUNDA; (B) the provisions of Sections 1 through 23 of this Agreement; (C) the SOWs; (D) the CNDA.

 

23.6.

Expenses. Unless otherwise specified in this Agreement or an SOW, each party is responsible for its own expenses associated with negotiating and performing under this Agreement.

 

23.7.

Force Majeure.

 

23.7.1.

Party not liable. A party is not liable for its delay in performing, or its failure to perform, any obligations under this Agreement to the extent that the delay or failure to perform is caused by a Force Majeure Event.

 

23.7.2.

Notice required. A party seeking to excuse its delay in performing or failure to perform must give prompt written notice of the Force Majeure Event after it occurs and describe the circumstances causing, and the anticipated duration of, any actual or anticipated delay or failure to perform.

 

23.7.3.

Best efforts to minimize. A party seeking to excuse its delay in performing or failure to perform must use best efforts to minimize the effects and duration of its nonperformance.

 

 

23.7.4.

Non-waiver of Common Law Defenses. The rights and remedies in this Section 23.7 are in addition to any other rights and remedies provided by law or in equity, Including the doctrines of impossibility of performance or frustration of purpose

 

23.8.

Headings. The section and paragraph headings in this Agreement are for convenience of reference only and must not affect the interpretation of this Agreement.

 

23.9.

Independent Development. Except for the restrictions in Sections 3.1.1, 4.2, 5.3.1, 7.2 and 14, this Agreement does not preclude either party from: (a) independently designing, developing, making, marketing, or distributing any technologies or products; or (b) entering into any arrangements with third parties, Including evaluating or acquiring a third party’s technologies or products.

 

23.10.

No partnership. Notwithstanding anything to the contrary herein, this Agreement does not constitute, and shall not be construed as constituting, a partnership or joint venture, grant of a franchise between Intel and Mobileye (or any of their respective Affiliates), fiduciary, or similar relationship.

 

23.11.

No Construction Against the Drafter. Both parties will be considered to have drafted this Agreement, and each party waives any rule of construction that ambiguities will be construed against the drafting party.

 

23.12.

Payment and Tax

 

23.12.1.

The terms “gross profit”, “cost of goods sold”, and “gross margin” in this Agreement are defined in accordance with US GAAP unless expressly agreed otherwise in writing signed by authorized representatives of both parties.

 

23.12.2.

Transaction Taxes. Notwithstanding anything to the contrary herein, a party making a payment under this Agreement (“Payor”) will pay all applicable transaction taxes, Including sales and use taxes, value added taxes, duties, customs, tariffs, and other government-imposed transactional charges (“Transaction Taxes”). The party receiving payments under this Agreement (“Recipient”) will separately state on its invoices the Transaction Taxes that Recipient is required to collect under applicable law. Payor will provide proof of any exemption from Transaction Taxes to Recipient at least 15 Days prior to the due date to paying an invoice. Recipient will cooperate with Payor in minimizing any Transaction Taxes to the extent permitted by applicable law. If Recipient fails to collect required Transaction Taxes from Payor, Payor’s liability will be limited to the Transaction Tax assessment, with no reimbursement for penalty or interest charges.

 

23.12.3.

Withholding Taxes. If applicable, Payor will be entitled to deduct or withhold from amounts payable to Recipient under this Agreement any withholding taxes required to be deducted or withheld under applicable law and pay to Recipient the remaining net amount. Payor will remit, and provide Recipient with evidence that Payor has remitted, the withholding taxes to the appropriate taxing authority. If within 15 Days prior to the due date for any Payor payment, Recipient provides Payor with valid certificate or other documentation demonstrating that Recipient is exempt from withholding taxes, or a lower rate of withholding tax applies, then Payor will, as appropriate, not deduct or withhold from any payment to Recipient or apply the lower rate to the payment.

 

 

For the avoidance of doubt, each party is responsible for its own respective income taxes or taxes based on gross revenues or gross receipts.

 

23.13.

Trade Compliance. A party’s provision of Technology must be in in compliance with all applicable trade laws and regulations. Each party will not export or re-export, either directly or indirectly, any technical data, software, process, product, service, or system obtained from the other party, without first complying with applicable government laws and regulations governing the export, re-export, and import of those items. Upon a party’s request, the other party agrees to provide export classifications, Harmonized Tariff Schedule classifications, or other information necessary for compliance with applicable trade laws and regulations for all Technology provided under this Agreement.

 

23.14.

Third Party Rights. This Agreement is made for the benefit of Mobileye and Intel and is not intended to benefit or be enforceable by any third party. The rights of Mobileye and Intel to terminate, rescind, amend, waive, or vary any term of, or to settle disputes regarding, this Agreement, are not subject to the consent of any third party.

 

23.15.

Waiver. No waiver of any provision of this Agreement will be valid unless in a writing signed by the waiving party that specifies the provision being waived. A party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver.

 

23.16.

Severability. If a court holds a part of this Agreement unenforceable, the court will modify that part to the minimum extent necessary to make that part enforceable, or if necessary, sever that part. The rest of this Agreement remains fully enforceable.

 

23.17.

Governing Law. Delaware and United States law governs this Agreement and any dispute arising out of or relating to it without regard to conflict of laws principles.

 

23.18.

Jurisdiction. The state and federal courts in Wilmington, Delaware will have exclusive jurisdiction over any dispute arising out of or relating to this Agreement, Including claims of breach of confidentiality or trade secret misappropriation. The parties consent to personal jurisdiction and venue in those courts.

 

 

23.19.

Counterparts and Electronic Signatures. This Agreement may be signed electronically and in multiple counterparts, each of which is considered an original, but all of which constitute a single instrument

 

Agreed:

 

Intel Corporation			Mobileye Vision Technologies Ltd.
Signature:			Signature:
Printed Name:			Printed Name:
Title:			Title:
Date Signed:			Date Signed:

 

Exhibit 10.7

 

TAX SHARING AGREEMENT

 

by and among

 

INTEL CORPORATION

 

and

 

MOBILEYE GLOBAL INC.

 

Dated

 

[    ], 2022

 

 

TABLE OF CONTENTS

 

		Page
Section 1.	Definitions	1
Section 2.	Preparation and Filing of Tax Returns	7
2.01.	Intel’s Responsibility	7
2.02.	Mobileye’s Responsibility	7
2.03.	Agent	8
2.04.	Manner of Tax Return Preparation	8
Section 3.	Liability for Taxes	9
3.01.	Mobileye’s Liability for Taxes	9
3.02.	Intel’s Liability for Taxes	9
3.03.	Other Taxes, Refunds and Credits	9
3.04.	Payment of Tax Liability	10
3.05.	Computation	10
Section 4.	Deconsolidation Events	10
4.01.	General	10
4.02.	Continuing Covenants	10
Section 5.	Distribution Taxes	11
5.01.	Liability for Distribution Taxes	11
5.02.	Continuing Covenants	12
Section 6.	Indemnification	14
6.01.	In General	14
6.02.	Inaccurate or Incomplete Information	14
6.03.	No Indemnification for Tax Items	14
Section 7.	Payments	15
7.01.	Estimated Tax Payments	15
7.02.	True-Up Payments	15
7.03.	Redetermination Amounts	15
7.04.	Payments of Refunds, Credits and Reimbursements	15
7.05.	Payments Under This Agreement	15
Section 8.	Tax Proceedings	16
8.01.	General	16
8.02.	Notice	17
8.03.	Control of Distribution Tax Proceedings	17
Section 9.	Miscellaneous Provisions	17
9.01.	Effectiveness	17
9.02.	Cooperation and Exchange of Information	18
9.03.	Dispute Resolution	18

 

 

9.04.	Notices	19
9.05.	Changes in Law	19
9.06.	Confidentiality	20
9.07.	Successors	20
9.08.	Affiliates	20
9.09.	Authorization, Etc.	20
9.10.	Entire Agreement	20
9.11.	Applicable Law: Jurisdiction	21
9.12.	Counterparts	21
9.13.	Severability	21
9.14.	No Third Party Beneficiaries	21
9.15.	Waivers, Etc.	21
9.16.	Setoff	21
9.17.	Other Remedies	22
9.18.	Amendment and Modification	22
9.19.	Waiver of Jury Trial	22
9.20.	Interpretations	22

 

 

TAX SHARING AGREEMENT

 

THIS TAX SHARING AGREEMENT (this “Agreement”) dated as of [   ], 2022, by and among Intel Corporation, a Delaware corporation (“Intel”), and Mobileye Global Inc., a Delaware corporation and an indirect, wholly-owned subsidiary of Intel (“Mobileye”), is entered into in connection with the IPO (as defined below).

 

RECITALS

 

WHEREAS, as of the date hereof, Intel and its direct and indirect domestic subsidiaries are members of a Consolidated Group (as defined below), of which Intel is the common parent;

 

WHEREAS, Intel indirectly owns all of the issued and outstanding shares of Mobileye stock;

 

WHEREAS, Intel intends to effect the initial public offering by Mobileye of Mobileye common stock that will reduce Intel’s ownership of Mobileye, on a fully diluted basis, to not less than eighty percent (80%) of the value of Mobileye’s common stock (the “IPO”); and

 

WHEREAS, in contemplation of the IPO, the parties hereto have determined to enter into this Agreement, setting forth their agreement with respect to certain tax matters.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows:

 

Section 1.      Definitions.

 

As used in this Agreement, capitalized terms shall have the following meanings (such meanings to be equally applicable to both the singular and the plural forms of the terms defined):

 

“After Tax Amount” means any additional amount necessary to reflect the hypothetical Tax consequences of the receipt or accrual of any payment required to be made under this Agreement (including payment of an additional amount or amounts hereunder and the effect of the deductions available for interest paid or accrued and for Taxes such as state and local Income Taxes), determined by using the highest applicable statutory corporate Income Tax rate (or rates, in the case of an item that affects more than one Tax) for the relevant taxable period (or portion thereof).

 

“Agreement” has the meaning set forth in the preamble hereto.

 

“Acquired Entity” means any of Cyclops Holdings Corporation, a Delaware corporation (formerly known as Cyclops Holdings, LLC, a Delaware limited liability company), GG Acquisition Ltd, a corporation duly organized under the state of Israel, or Moovit App Global Ltd., a corporation duly organized under the state of Israel.

 

 

“Audit” means any audit, assessment of Taxes, other examination by any Taxing Authority, proceeding, or appeal of such a proceeding relating to Taxes, whether administrative or judicial, including proceedings relating to competent authority determinations.

 

“Business Day” means any day that is not a Saturday, a Sunday or any other day on which commercial banks in Santa Clara, California, are required or authorized by law to be closed.

 

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

 

“Combined Return” means any Tax Return, other than with respect to United States federal Income Taxes, filed on a consolidated, combined (including nexus combination, worldwide combination, domestic combination, line of business combination or any other form of combination) or unitary basis wherein Mobileye or one or more Mobileye Affiliates join in the filing of such Tax Return (for any taxable period or portion thereof) with Intel or one or more Intel Affiliates.

 

“Consolidated Group” means an affiliated group of corporations within the meaning of Section 1504(a) of the Code that files a consolidated return for United States federal Income Tax purposes.

 

“Consolidated Return” means any Tax Return with respect to United States federal Income Taxes filed on a consolidated basis wherein Mobileye or one or more Mobileye Affiliates join in the filing of such Tax Return (for any taxable period or portion thereof) with Intel or one or more Intel Affiliates.

 

“Deconsolidation Event” means, with respect to Mobileye and each Mobileye Affiliate, any event or transaction that causes Mobileye and/or one or more Mobileye Affiliates to no longer be eligible to join with Intel or one or more Intel Affiliates in the filing of a Consolidated Return or a Combined Return.

 

“Distribution” means any distribution by Intel of issued and outstanding shares of Mobileye stock (and securities, if any) that Intel holds at such time to Intel shareholders and/or securityholders, and/or exchange by Intel of its issued and outstanding shares of Mobileye stock (and securities, if any) with Intel shareholders and/or securityholders, in a transaction intended to qualify as a distribution under Section 355 of the Code.

 

“Distribution Taxes” means any Taxes imposed on, or increase in Taxes incurred by, Intel or any Intel Affiliate (determined for these purposes without regard to whether such Taxes are offset or reduced by any Tax Asset, Tax Item, or otherwise) resulting from, or arising in connection with, the failure of a Distribution to qualify as a tax-free transaction under Section 355 of the Code (including any Tax resulting from the application of Section 355(d) or Section 355(e) of the Code to a Distribution) or corresponding provisions of the laws of any other jurisdictions. Any Income Tax referred to in the immediately preceding sentence shall be determined using the highest applicable statutory corporate Income Tax rate for the relevant taxable period (or portion thereof).

 

 

“Estimated Tax Installment Date” means, with respect to United States federal Income Taxes, the estimated Tax installment due dates prescribed in Section 6655(c) of the Code and, in the case of any other Tax, means any other date on which an installment payment of an estimated amount of such Tax is required to be made.

 

“Final Determination” shall mean the final resolution of liability for any Tax for any taxable period, by or as a result of: (i) a final and unappealable decision, judgment, decree or other order by any court of competent jurisdiction; (ii) a final settlement with the IRS, a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the laws of other jurisdictions, which resolves the entire Tax liability for any taxable period; (iii) any allowance of a refund or credit in respect of an overpayment of Tax, but only after the expiration of all periods during which such refund may be recovered by the jurisdiction imposing the Tax; or (iv) any other final disposition, including by reason of the expiration of the applicable statute of limitations.

 

“Income Tax” shall mean any U.S. federal, state, local or non-U.S. Tax determined (in whole or in part) by reference to net income, gross receipts or capital, or any Taxes imposed in lieu of such a tax. For the avoidance of doubt, the term “Income Tax” includes any franchise Tax or any Taxes imposed in lieu of such a Tax.

 

“Income Tax Return” means any Tax Return relating to any Income Tax.

 

“Independent Accountant” has the meaning set forth in Section 2.04(b) of this Agreement.

 

“Dispute Firm” has the meaning set forth in Section 9.03 of this Agreement.

 

“Intel” has the meaning set forth in the preamble hereto.

 

“Intel Affiliate” means any corporation or other entity directly or indirectly “controlled” by Intel where “control” means the ownership of fifty percent (50%) or more of the ownership interests of such corporation or other entity (by vote or value) or the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such corporation or other entity, but at all times excluding Mobileye or any Mobileye Affiliate.

 

“Intel Business” means all of the businesses and operations conducted by Intel and Intel Affiliates, excluding the Mobileye Business, at any time, whether prior to or after the IPO Date.

 

“Intel Group” means the Consolidated Group, or similar group of entities as defined under corresponding provisions of the laws of other jurisdictions, of which Intel is the common parent corporation, and any corporation or other entity which may be, may have been or may become a member of such group from time to time, but excluding any member of the Mobileye Group.

 

“IPO” has the meaning set forth in the recitals hereto.

 

“IPO Date” means the close of business on the date which the IPO is effected.

 

 

“IRS” means the United States Internal Revenue Service or any successor thereto, including its agents, representatives, and attorneys.

 

“Market Capitalization” means an amount equal to (i) the total number of issued and outstanding common stock of the relevant party on the first Business Day following the date of determination multiplied by (ii) the weighted average of the trading price of such stock on the first Business Day following the date of determination.

 

“Mobileye” has the meaning set forth in the preamble hereto.

 

“Mobileye Affiliate” means any corporation or other entity directly or indirectly “controlled” by Mobileye at the time in question, where “control” means the ownership of fifty percent (50%) or more of the ownership interests of such corporation or other entity (by vote or value) or the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such corporation or other entity.

 

“Mobileye Business” means the business and operations conducted by Mobileye and Mobileye Affiliates as such business and operations will continue after the IPO Date.

 

“Mobileye Business Records” has the meaning set forth in Section 9.02(b) of this Agreement.

 

“Mobileye Group” means the Consolidated Group, or similar group of entities as defined under corresponding provisions of the laws of other jurisdictions, of which Mobileye will be the common parent corporation immediately after a Deconsolidation Event and including any corporation or other entity which may become a member of such group from time to time.

 

“Mobileye Separate Tax Liability” means an amount (which shall not be less than zero) equal to any and all Income Taxes for a relevant Tax period with respect to or as a result of, assets or activities of Mobileye and each Mobileye Affiliate, determined by calculating the amount of the excess (if any) of (i) the amount of Taxes shown as due and payable on a Consolidated Return or a Combined Return including Mobileye and/or any Mobileye Affiliate with respect to such relevant Tax period, as filed, over (ii) the amount of Taxes that would be shown as due and payable on such Consolidated Return or Combined Return if such Consolidated Return or Combined Return were recalculated excluding Mobileye and/or the Mobileye Affiliates, as may be relevant; provided that, to the extent such amount is determined with respect to a Pre-IPO Tax Period, any Acquired Entity shall not be treated as a Mobileye Affiliate solely for purposes of this definition of Mobileye Separate Tax Liability.

 

“Non-Income Tax Return” means any Tax Return relating to any Tax other than an Income Tax.

 

“Officer’s Certificate” means a letter executed by an officer of Intel or Mobileye and provided to Tax Counsel as a condition for the completion of a Tax Opinion or Supplemental Tax Opinion.

 

“Option” means an option to acquire common stock, or other equity-based incentives the economic value of which is designed to mirror that of an option, including non-qualified stock options, discounted non-qualified stock options, cliff options to the extent stock is issued or issuable (as opposed to cash compensation), and tandem stock options to the extent stock is issued or issuable (as opposed to cash compensation).

 

 

“Owed Party” has the meaning set forth in Section 7.05 of this Agreement.

 

“Owing Party” has the meaning set forth in Section 7.05 of this Agreement.

 

“Payment Period” has the meaning set forth in Section 7.05(e) of this Agreement.

 

“Post-Deconsolidation Period” means any taxable period beginning after the date of a Deconsolidation Event.

 

“Pre-Deconsolidation Period” means any taxable period beginning on or before the date of a Deconsolidation Event.

 

“Pre-IPO Acquired Entity Taxes” means, with respect to the referenced Taxes of an Acquired Entity, such Taxes of the Acquired Entity attributable to any Pre-IPO Tax Period. For purposes of this Agreement, (i) in the case of Taxes based upon income, sales, proceeds, profits, receipts, wages, compensation or similar items, the Taxes attributable to the portion of any Straddle Period that is a Pre-IPO Tax Period shall be determined as though the applicable taxable year or period ended at the end of the day on the IPO Date based on an interim closing of the books, except that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated on a per diem basis, and (ii) in the case of any other Taxes, the amount of such Taxes attributable to the portion of any Straddle Period that is a Pre-IPO Tax Period shall equal the amount of such Tax for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the taxable period up to and including the IPO Date, and the denominator of which is the total number of days in such taxable period.

 

“Pre-IPO Tax Period” means any Tax period or portion thereof that ends on or prior to the IPO Date, including the portion of any Straddle Period ending on the IPO Date.

 

“Ruling” means (i) any private letter ruling issued by the IRS in connection with a Distribution in response to a request for such a private letter ruling filed by Intel (or any Intel Affiliate) prior to the date of a Distribution, and (ii) any similar ruling issued by any other Taxing Authority addressing the application of a provision of the laws of another jurisdiction to a Distribution.

 

“Ruling Documents” means (i) the request for a Ruling filed with the IRS, together with any supplemental filings or other materials subsequently submitted on behalf of Intel, its Subsidiaries and shareholders to the IRS, the appendices and exhibits thereto, and any Ruling issued by the IRS to Intel (or any Intel Affiliate) in connection with a Distribution and (ii) any similar filings submitted to, or rulings issued by, any other Taxing Authority in connection with a Distribution.

 

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

 

 

“Supplemental Ruling” means (i) any ruling (other than the Ruling) issued by the IRS in connection with a Distribution, and (ii) any similar ruling issued by any other Taxing Authority addressing the application of a provision of the laws of another jurisdiction to a Distribution.

 

“Supplemental Ruling Documents” means (i) the request for a Supplemental Ruling, together with any supplemental filings or other materials subsequently submitted, the appendices and exhibits thereto, and any Supplemental Rulings issued by the IRS in connection with a Distribution and (ii) any similar filings submitted to, or rulings issued by, any other Taxing Authority in connection with a Distribution.

 

“Supplemental Tax Opinion” has the meaning set forth in Section 5.02(c) of this Agreement.

 

“Tax” means any tax of any kind, including any U.S. federal, state, local or non-U.S. income, net income, gross income, corporation, profit, license, severance, occupation, windfall profits, capital gains, capital stock, transfer, registration, social security, production, franchise, gross receipts, payroll, sales, employment, unemployment, disability, use, property, excise, value added, estimated, stamp, alternative or add-on minimum, environmental, withholding tax, and any other tax or similar governmental charge, duty or assessment, together with all interest and penalties and additions thereto imposed with respect to such amounts, in each case whether disputed or not.

 

“Taxpayer” means any taxpayer and its Consolidated Group or similar group of entities as defined under corresponding provisions of the laws of any other jurisdiction of which a taxpayer is a member.

 

“Tax Asset” means any Tax Item that has accrued for Tax purposes, but has not been realized during the taxable period in which it has accrued, and that could reduce a Tax in another taxable period, including a net operating loss, net capital loss, a “disallowed business interest expense carryforward” within the meaning of Section 163(j) of the Code, investment tax credit, foreign tax credit, charitable deduction or credit related to alternative minimum tax or any other Tax credit.

 

“Tax Benefit” means a reduction in the Tax liability (or increase in refund or credit or any item of deduction or expense) of a Taxpayer for any taxable period. Except as otherwise provided in this Agreement, a Tax Benefit shall be deemed to have been realized or received from a Tax Item in a taxable period only if and to the extent that the Tax liability of the Taxpayer for such period, after taking into account the effect of the Tax Item on the Tax liability of such Taxpayer in the current period and all prior periods, is less than it would have been had such Tax liability been determined without regard to such Tax Item.

 

“Tax Counsel” means a nationally recognized law firm selected by Intel (or Mobileye, in the case of a Supplemental Tax Opinion) to provide a Tax Opinion.

 

“Tax Detriment” means an increase in the Tax liability (or reduction in refund or credit or any item of deduction or expense) of a Taxpayer for any taxable period. Except as otherwise provided in this Agreement, a Tax Detriment shall be deemed to have been realized or incurred from a Tax Item in a taxable period only if and to the extent that the Tax liability of the Taxpayer for such period, after taking into account the effect of the Tax Item on the Tax liability of such Taxpayer in the current period and all prior periods, is more than it would have been had such Tax liability been determined without regard to such Tax Item.

 

 

“Tax Item” means any item of income, gain, loss, deduction, expense or credit, or other attribute that may have the effect of increasing or decreasing any Tax.

 

“Tax Opinion” means an opinion issued by Tax Counsel as one of the conditions to completing a Distribution addressing certain United States federal Income Tax consequences of a Distribution under Section 355 of the Code.

 

“Tax Return” means any return, declaration, report, election, claim for refund or information return or statement filed or required to be filed with any Taxing Authority relating to Taxes, including any attachment and any amendment thereof.

 

“Taxing Authority” means any governmental authority or any subdivision, agency, commission or authority thereof or any quasi-governmental or private body having jurisdiction over the assessment, determination, collection or imposition of any Tax (including the IRS).

 

Section 2.      Preparation and Filing of Tax Returns.

 

2.01.        Intel’s Responsibility. Subject to the other applicable provisions of this Agreement, Intel shall have sole and exclusive responsibility for the preparation and filing of:

 

(a)          all Consolidated Returns and all Combined Returns for any taxable period;

 

(b)          all Income Tax Returns (other than Consolidated Returns and Combined Returns) with respect to Intel and/or any Intel Affiliate for any taxable period;

 

(c)          all Income Tax Returns (other than Consolidated Returns and Combined Returns) with respect to Mobileye and/or any Mobileye Affiliate that are required to be filed (taking into account any extension of time which has been requested or received) on or prior to the IPO Date; and

 

(d)          all Non-Income Tax Returns (i) with respect to Intel, any Intel Affiliate, or the Intel Business or any part thereof for any taxable period and (ii) with respect to any Acquired Entity that are required to be filed (taking into account any extension of time which has been requested or received) on or prior to the IPO Date.

 

2.02.        Mobileye’s Responsibility. Subject to the other applicable provisions of this Agreement, Mobileye shall have sole and exclusive responsibility for the preparation and filing of:

 

(a)          all Income Tax Returns (other than Consolidated Returns and Combined Returns) with respect to Mobileye and/or any Mobileye Affiliate that are required to be filed (taking into account any extension of time which has been requested or received) after the IPO Date; and

 

 

(b)          all Non-Income Tax Returns with respect to Mobileye, any Mobileye Affiliate, or the Mobileye Business or any part thereof for any taxable period (other than any Non-Income Tax Returns with respect to any Acquired Entity that are required to be filed (taking into account any extension of time which has been requested or received) on or prior to the IPO Date).

 

2.03.        Agent. Subject to the other applicable provisions of this Agreement, Mobileye hereby irrevocably designates, and agrees to cause each Mobileye Affiliate to so designate, Intel as its sole and exclusive agent and attorney-in-fact to take such action (including execution of documents) as Intel, in its sole discretion, may deem appropriate in any and all matters (including Audits) relating to any Tax Return described in Section 2.01 of this Agreement.

 

2.04.        Manner of Tax Return Preparation.

 

(a)          Unless otherwise required by a Taxing Authority, the parties hereby agree to prepare and file all Tax Returns, and to take all other actions, in a manner consistent with (1) this Agreement, (2) any Tax Opinion, (3) any Supplemental Tax Opinion, (4) any Ruling, and (5) any Supplemental Ruling. All Tax Returns shall be filed on a timely basis (taking into account any applicable extensions) by the party responsible for filing such returns under this Agreement.

 

(b)          With respect to any Tax Return described in Section 2.01 of this Agreement, Intel shall have the exclusive right, in its sole discretion to determine (1) the manner in which such Tax Return shall be prepared and filed, including (but not limited to) the elections, method of accounting, positions, conventions and principles of taxation to be used and the manner in which any Tax Item shall be reported, (2) whether any extensions shall be requested, (3) the elections that will be made by Intel, any Intel Affiliate, Mobileye, and/or any Mobileye Affiliate on such Tax Return, including the inclusion (or lack thereof) of Mobileye and/or any Mobileye Affiliate in such Tax Return, (4) whether any amended Tax Returns shall be filed, (5) whether any claims for refund shall be made, (6) whether any refunds shall be paid by way of refund or credited against any liability for the related Tax, and (7) whether to retain outside firms to prepare and/or review such Tax Returns; provided that (i) Intel shall consult with Mobileye prior to making any election on any Tax Return or changing any method of accounting, position, convention, principle of taxation or manner in which any Tax Item is reported if such election or such change could reasonably be expected to result in a material liability for which Mobileye would be responsible under Section 3.01, and (ii) Intel shall not make any such election or make any such change without the prior consent of Mobileye (not to be unreasonably withheld, conditioned or delayed) if such election or such change would solely impact Mobileye and/or the Mobileye Affiliates (with no impact on Intel or any Intel Affiliate).

 

(c)          With respect to any Tax Return described in Section 2.02 of this Agreement, Mobileye shall provide to Intel, at the request of Intel, a draft of such Tax Return and copies of all worksheets and other materials used in preparation thereof for Intel’s review and comment at least 30 days prior to the due date (with applicable extensions) for the filing of such Tax Return, and shall incorporate any such comments provided by Intel in good faith to the extent that such comments could reasonably be expected to impact any Tax liability of Intel or an Intel Affiliate. Intel shall provide its comments (if any) to Mobileye at least ten (10) days prior to the due date (with applicable extensions) for the filing of such Tax Return. Notwithstanding anything in this Section 2.04(c) to the contrary, Intel shall have no review and comment rights with respect to any Tax Returns described in Section 2.02 from and after the date Intel owns less than 50% of the outstanding Mobileye stock by value; provided that, to the extent any election made with respect to any such Tax Return could reasonably be expected to materially adversely impact any Tax liability of Intel or an Intel Affiliate, the prior written consent of Intel shall be required for the filing of such Tax Return (which consent shall not be unreasonably withheld, conditioned or delayed).

 

 

(d)          Information. Mobileye shall timely provide, in accordance with Intel’s internal tax return calendar, which will be provided to Mobileye on a rolling one-year schedule, all information necessary for Intel to prepare all Tax Returns and compute all estimated Tax payments (for purposes of Section 7.01 of this Agreement).

 

Section 3.      Liability for Taxes.

 

3.01.        Mobileye’s Liability for Taxes. Mobileye shall be liable for the following Taxes, and shall be entitled to receive and retain all refunds and credits of Taxes previously incurred by Mobileye, any Mobileye Affiliate, or the Mobileye Business with respect to such Taxes:

 

(a)          all Taxes with respect to Tax Returns described in Section 2.01(a) of this Agreement to the extent that such Taxes are related to the Mobileye Separate Tax Liability;

 

(b)          all Taxes with respect to Tax Returns described in Section 2.01(c) of this Agreement (other than any Pre-IPO Acquired Entity Taxes); and

 

(c)          all Taxes with respect to Tax Returns described in Section 2.02 of this Agreement (other than any Pre-IPO Acquired Entity Taxes).

 

3.02.        Intel’s Liability for Taxes. Intel shall be liable for the following Taxes, and shall be entitled to receive and retain all refunds and credits of Taxes previously incurred by Intel, any Intel Affiliate, or the Intel Business with respect to such Taxes:

 

(a)          except as provided in Section 3.01(a) of this Agreement, all Taxes with respect to Tax Returns described in Section 2.01(a) of this Agreement; and

 

(b)          all Taxes with respect to Tax Returns described in Sections 2.01(b) or 2.01(d) of this Agreement and, without duplication, any Pre-IPO Acquired Entity Taxes.

 

3.03.        Other Taxes, Refunds and Credits. To the extent of any Taxes that are not described in Sections 3.01 or 3.02, (i) Intel shall be liable for all such Taxes incurred by any person with respect to the Intel Business for all periods and shall be entitled to all refunds and credits of Taxes previously incurred by any person with respect to such Taxes, and (ii) Mobileye shall be liable for all such Taxes incurred by any person with respect to the Mobileye Business for all periods and shall be entitled to all refunds and credits of Taxes previously incurred by any person with respect to such Taxes. Nothing in this Agreement shall be construed to require compensation, by payment, credit, offset or otherwise, by Intel (or any Intel Affiliate) to Mobileye (or any Mobileye Affiliate) for any loss, deduction, credit or other Tax attribute arising in connection with, or related to, Mobileye, any Mobileye Affiliate, or the Mobileye Business, that is shown on, or otherwise reflected with respect to, any Tax Return described in Section 2.01 of this Agreement.

 

 

3.04.        Payment of Tax Liability. If one party is liable or responsible for Taxes, under Sections 3.01 through 3.03 of this Agreement, with respect to Tax Returns for which another party is responsible for filing, or with respect to Taxes that are paid by another party, then the liable or responsible party shall pay the Taxes (or a reimbursement of such Taxes) to the other party pursuant to Section 7.05 of this Agreement.

 

3.05.        Computation. Intel shall provide Mobileye with a written calculation in reasonable detail setting forth the amount of any Mobileye Separate Tax Liability or estimated Mobileye Separate Tax Liability (for purposes of Section 7.01 of this Agreement) in accordance with Section 2.04(b) of this Agreement. Any dispute with respect to such calculation shall be resolved pursuant to Section 9.03 of this Agreement; provided, however, that, notwithstanding any dispute with respect to any such calculation, in no event shall any payment attributable to the amount of any Mobileye Separate Tax Liability or estimated Mobileye Separate Tax Liability be paid later than the date provided in Section 7 of this Agreement.

 

Section 4.      Deconsolidation Events.

 

4.01.        General.

 

Neither Intel nor Mobileye has any plan or intent to effectuate any transaction that would constitute a Deconsolidation Event. In the case of a Deconsolidation Event, Intel shall, after consulting with Mobileye in good faith, reasonably determine, and Mobileye shall cooperate with Intel in determining, the allocation of any Tax Assets among Intel, each Intel Affiliate, Mobileye, and each Mobileye Affiliate. For the avoidance of doubt, in the case of a Deconsolidation Event, all rights and obligations of the parties with respect to the matters covered by this Agreement shall be governed by the other provisions of this Agreement, unless otherwise provided in this Section 4.

 

4.02.        Continuing Covenants.

 

Each of Intel (for itself and each Intel Affiliate) and Mobileye (for itself and each Mobileye Affiliate) agrees (1) not to take any action reasonably expected to result in an increased Tax liability to the other, a reduction in a Tax Asset of the other or an increased liability to the other under this Agreement, and (2) to take any action reasonably requested by the other that would reasonably be expected to result in a Tax Benefit or avoid a Tax Detriment to the other, provided, in either such case, that the taking or refraining to take such action does not result in any additional cost not fully compensated for by the other party or any other adverse effect to such party. The parties hereby acknowledge that the preceding sentence is not intended to limit, and therefore shall not apply to, the rights of the parties with respect to matters otherwise specifically covered by this Agreement.

 

 

Section 5.      Distribution Taxes.

 

5.01.          Liability for Distribution Taxes. Although neither party has any plan or intent to effectuate a Distribution, the parties have set forth how certain Tax matters with respect to a Distribution would be handled in the event that a Distribution is pursued at some future time.

 

(a)          Intel’s Liability for Distribution Taxes. In the event of a Distribution, notwithstanding Sections 3.01 through 3.03 of this Agreement, Intel shall be liable for any Distribution Taxes, to the extent that such Distribution Taxes are attributable to, caused by, or result from, one or more of the following:

 

(i)          any action or omission by Intel (or any Intel Affiliate) inconsistent with any information, covenant, representation, or material related to Intel, any Intel Affiliate, or the Intel Business in an Officer’s Certificate, Tax Opinion, Supplemental Tax Opinion, Ruling Documents, Supplemental Ruling Documents, Ruling, or Supplemental Ruling;

 

(ii)         any action or omission by Intel (or any Intel Affiliate), including a cessation, transfer to affiliates, or disposition of its active trades or businesses, or an issuance of stock, stock buyback or payment of an extraordinary dividend by Intel (or any Intel Affiliate) following a Distribution;

 

(iii)        any acquisition of any stock or assets of Intel (or any Intel Affiliate) by one or more other persons (other than Mobileye or a Mobileye Affiliate) prior to or following a Distribution; or

 

(iv)        any issuance of stock by Intel (or any Intel Affiliate), or change in ownership of stock in Intel (or any Intel Affiliate).

 

(b)          Mobileye’s Liability for Distribution Taxes. In the event of a Distribution, notwithstanding Sections 3.01 through 3.03 of this Agreement, Mobileye shall be liable for any Distribution Taxes, to the extent that such Distribution Taxes are attributable to, caused by, or result from, one or more of the following:

 

(i)          any action or omission by Mobileye (or any Mobileye Affiliate) after a Distribution at any time, that is inconsistent with any information, covenant, representation, or material related to Mobileye, any Mobileye Affiliate, or the Mobileye Business in an Officer’s Certificate, Tax Opinion, Supplemental Tax Opinion, Ruling Documents, Supplemental Ruling Documents, Ruling, or Supplemental Ruling;

 

(ii)         any action or omission by Mobileye (or any Mobileye Affiliate) after the date of a Distribution (including any act or omission that is in furtherance of, connected to, or part of a plan or series of related transactions (within the meaning of Section 355(e) of the Code) occurring on or prior to the date of a Distribution) including a cessation, transfer to affiliates or disposition of the active trades or businesses of Mobileye (or any Mobileye Affiliate), stock buyback or payment of an extraordinary dividend;

 

 

(iii)        any acquisition of any stock or assets of Mobileye (or any Mobileye Affiliate) by one or more other persons (other than Intel or any Intel Affiliate) prior to or following a Distribution; or

 

(iv)        any issuance of stock by Mobileye (or any Mobileye Affiliate) after a Distribution, including any issuance pursuant to the exercise of employee stock options or other employment related arrangements or the exercise of warrants, or change in ownership of stock in Mobileye (or any Mobileye Affiliate) after a Distribution.

 

For the avoidance of doubt, the presence of a Supplemental Opinion or Supplemental Ruling pursuant to Section 5.02(c) hereof shall not relieve Mobileye from any liability otherwise arising under this Section 5.01(b).

 

(c)          Joint Liability for Remaining Distribution Taxes. With respect to any Distribution Taxes not otherwise allocated by Sections 5.01(a) or (b) of this Agreement, each of Intel and Mobileye shall be liable for its respective share of such taxes, determined by reference to a ratio, the numerator of which is the relevant party’s Market Capitalization at the time of such Distribution and the denominator of which is the aggregate Market Capitalization of Intel and Mobileye at the time of such Distribution.

 

5.02.          Continuing Covenants.

 

(a)          Mobileye Restrictions. Mobileye agrees that, so long as a Distribution could, in the reasonable discretion of Intel, be effectuated, Mobileye will not knowingly take or fail to take, or permit any Mobileye Affiliate to knowingly take or fail to take, any action that could reasonably be expected to preclude Intel’s ability to effectuate a Distribution. In the event of a Distribution, Mobileye agrees that (1) it will take, or cause any Mobileye Affiliate to take, any action reasonably requested by Intel in order to enable Intel to effectuate a Distribution and (2) it will not take or fail to take, or permit any Mobileye Affiliate to take or fail to take, any action where such action or failure to act would be inconsistent with any information, covenant, representation, or material that relates to facts or matters related to Mobileye (or any Mobileye Affiliate) or within the control of Mobileye and is contained in an Officer’s Certificate, Tax Opinion, Supplemental Tax Opinion, Ruling Documents, Supplemental Ruling Documents, Ruling, or Supplemental Ruling (except where such information, covenant, representation, or material was not previously disclosed to Mobileye) other than as permitted by Section 5.02(c) of this Agreement. For this purpose an action is considered inconsistent with a representation if the representation states that there is no plan or intention to take such action. In the event of a Distribution, Mobileye agrees that it will not take (and it will cause the Mobileye Affiliates to refrain from taking) any position on a Tax Return that is inconsistent with such Distribution qualifying under Section 355 of the Code.

 

 

(b)          Intel Restrictions. In the event of a Distribution, Intel agrees that it will not take or fail to take, or permit any Intel Affiliate to take or fail to take, any action where such action or failure to act would be inconsistent with any material, information, covenant or representation that relates to facts or matters related to Intel (or any Intel Affiliate) or within the control of Intel and is contained in an Officer’s Certificate, Tax Opinion, Supplemental Tax Opinion, Ruling Documents, Supplemental Ruling Documents, Ruling, or Supplemental Ruling. For this purpose an action is considered inconsistent with a representation if the representation states that there is no plan or intention to take such action. In the event of a Distribution, Intel agrees that it will not take (and it will cause the Intel Affiliates to refrain from taking) any position on a Tax Return that is inconsistent with such Distribution qualifying under Section 355 of the Code.

 

(c)          Certain Mobileye Actions Following a Distribution. In the event of a Distribution, Mobileye agrees that, during the two (2) year period following a Distribution, without first obtaining, at Mobileye’s own expense, either a supplemental opinion from Tax Counsel that such action will not result in Distribution Taxes (a “Supplemental Tax Opinion”) or a Supplemental Ruling that such action will not result in Distribution Taxes, unless in any such case Intel and Mobileye agree otherwise, Mobileye shall not (1) sell all or substantially all of the assets of Mobileye or any Mobileye Affiliate, (2) merge Mobileye or any Mobileye Affiliate with another entity, without regard to which party is the surviving entity (other than any merger between two Mobileye Affiliates and a merger between a Mobileye Affiliate and Mobileye where Mobileye is the surviving entity, in each case, where the applicable Mobileye Affiliate(s) are members of the Mobileye Group), (3) transfer any assets of Mobileye in a transaction described in Section 351 (other than a transfer to a corporation which files a Consolidated Return with Mobileye and which is wholly-owned, directly or indirectly, by Mobileye) or subparagraph (C) or (D) of Section 368(a)(1) of the Code, (4) issue stock of Mobileye or any Mobileye Affiliate (or any instrument that is convertible or exchangeable into any such stock) in an acquisition or public or private offering except to the extent such issuances satisfy Safe Harbor VIII (relating to acquisitions in connection with a person’s performance of services) or Safe Harbor IX (relating to acquisitions by a retirement plan of an employer) of Treasury Regulations Section 1.355-7(d), or (5) facilitate or otherwise participate in any acquisition of stock in Mobileye that would result in any shareholder owning five percent (5%) or more of the outstanding stock of Mobileye. Mobileye (or any Mobileye Affiliate) shall only undertake any of such actions after Intel’s receipt of such Supplemental Tax Opinion or Supplemental Ruling and pursuant to the terms and conditions of any such Supplemental Tax Opinion or Supplemental Ruling or as otherwise consented to in writing in advance by Intel. The parties hereby agree that they will act in good faith to take all reasonable steps necessary to amend this Section 5.02(c), from time to time, by mutual agreement, to (i) add certain actions to the list contained herein, or (ii) remove certain actions from the list contained herein, in either case, in order to reflect any relevant change in law, regulation or administrative interpretation occurring after the date of this Agreement and prior to a Distribution.

 

(d)          Notice of Specified Transactions. Not later than ten (10) Business Days prior to entering into any oral or written contract or agreement, and not later than five (5) Business Days after it first becomes aware of any negotiations, plan or intention (regardless of whether it is a party to such negotiations, plan or intention), regarding any of the transactions described in paragraph (c), Mobileye shall provide written notice of its intent to consummate such transaction or the negotiations, plan or intention of which it becomes aware, as the case may be, to Intel.

 

 

(e)          Mobileye Cooperation. Mobileye agrees that, at the reasonable request of Intel, Mobileye shall cooperate fully with Intel to take any action necessary or reasonably helpful to effectuate a Distribution, including seeking to obtain, as expeditiously as possible, a Tax Opinion, Ruling, and/or Supplemental Ruling. Such cooperation shall include the execution of any documents that may be necessary or reasonably helpful in connection with obtaining any Tax Opinion, Ruling, and/or Supplemental Ruling (including any (i) power of attorney, (ii) Officer’s Certificate, (iii) Ruling Documents, (iv) Supplemental Ruling Documents, and/or (v) reasonably requested written representations confirming that (a) Mobileye has read the Officer’s Certificate, Ruling Documents, and/or Supplemental Ruling Documents and (b) all information and representations, if any, relating to Mobileye, any Mobileye Affiliate or the Mobileye Business contained therein are true, correct and complete in all material respects).

 

Section 6.      Indemnification.

 

6.01.        In General. Intel shall indemnify Mobileye, each Mobileye Affiliate, and their respective directors, officers and employees, and hold them harmless from and against any and all Taxes for which Intel or any Intel Affiliate is liable under this Agreement and any loss, cost, damage or expense, including reasonable attorneys’ fees and costs, that is attributable to, or results from, the failure of Intel, any Intel Affiliate or any director, officer or employee to make any payment required to be made under this Agreement. Mobileye shall indemnify Intel, each Intel Affiliate, and their respective directors, officers and employees, and hold them harmless from and against any and all Taxes for which Mobileye or any Mobileye Affiliate is liable under this Agreement and any loss, cost, damage or expense, including reasonable attorneys’ fees and costs, that is attributable to, or results from, the failure of Mobileye, any Mobileye Affiliate or any director, officer or employee to make any payment required to be made under this Agreement.

 

6.02.        Inaccurate or Incomplete Information. Intel shall indemnify Mobileye, each Mobileye Affiliate, and their respective directors, officers and employees, and hold them harmless from and against any cost, fine, penalty, or other expense of any kind attributable to Intel or any Intel Affiliate supplying Mobileye or any Mobileye Affiliate with inaccurate or incomplete information, in connection with the preparation of any Tax Return. Mobileye shall indemnify Intel, each Intel Affiliate, and their respective directors, officers and employees, and hold them harmless from and against any cost, fine, penalty, or other expenses of any kind attributable to Mobileye or any Mobileye Affiliate supplying Intel or any Intel Affiliate with inaccurate or incomplete information, in connection with the preparation of any Tax Return.

 

6.03.        No Indemnification for Tax Items. Nothing in this Agreement shall be construed as a guarantee of the existence or amount of any loss, credit, carryforward, basis or other Tax Item, whether past, present or future, of Intel, any Intel Affiliate, Mobileye or any Mobileye Affiliate. In addition, for the avoidance of doubt, for purposes of determining any amount owed between the parties hereto, all such determinations shall be made without regard to any financial accounting Tax asset or liability or other financial accounting items.

 

 

Section 7.      Payments.

 

7.01.        Estimated Tax Payments. Not later than ten (10) Business Days prior to each Estimated Tax Installment Date with respect to a taxable period for which a Consolidated Return or a Combined Return will be filed, Mobileye shall pay to Intel on behalf of the Mobileye Group an amount equal to the amount of any estimated Mobileye Separate Tax Liability. Not later than twenty (20) Business Days prior to each such Estimated Tax Installment Date, Intel shall provide Mobileye with a written notice setting forth the amount payable by Mobileye in respect of such estimated Mobileye Separate Tax Liability and a calculation of such amount.

 

7.02.        True-Up Payments. Not later than thirty (30) Business Days after receipt of any Mobileye Separate Tax Liability computation pursuant to Section 3.05 of this Agreement, Mobileye shall pay to Intel, or Intel shall pay to Mobileye (as appropriate), an amount equal to the difference, if any, between the amount of such Mobileye Separate Tax Liability and the aggregate amount paid by Mobileye with respect to such period under Section 7.01 of this Agreement.

 

7.03.        Redetermination Amounts. In the event of a redetermination of any Tax Item reflected on any Consolidated Return or Combined Return (other than Tax Items relating to Distribution Taxes), as a result of a refund of Taxes paid, a Final Determination or any settlement or compromise with any Taxing Authority which in any such case would affect the Mobileye Separate Tax Liability, Intel shall prepare a revised pro forma Tax Return in accordance with Section 2.04(b) of this Agreement for the relevant taxable period reflecting the redetermination of such Tax Item as a result of such refund, Final Determination, settlement or compromise. Mobileye shall pay to Intel, or Intel shall pay to Mobileye, as appropriate, an amount equal to the difference, if any, between the Mobileye Separate Tax Liability reflected on such revised pro forma Tax Return and the Mobileye Separate Tax Liability for such period as originally computed pursuant to this Agreement.

 

7.04.        Payments of Refunds, Credits and Reimbursements. If one party receives a refund or credit of any Tax to which the other party is entitled pursuant to Section 3.03 of this Agreement, the party receiving such refund or credit shall pay to the other party the amount of such refund or credit pursuant to Section 7.05 of this Agreement. If one party pays a Tax with respect to which the other party is liable of responsible pursuant to Sections 3.01 through 3.03 of this Agreement, then the liable or responsible party shall pay to the other party the amount of such Tax pursuant to Section 7.05 of this Agreement.

 

7.05.        Payments Under This Agreement. In the event that one party (the “Owing Party”) is required to make a payment to another party (the “Owed Party”) pursuant to this Agreement, then such payments shall be made according to this Section 7.05.

 

(a)          In General. All payments shall be made to the Owed Party or to the appropriate Taxing Authority as specified by the Owed Party within the time prescribed for payment in this Agreement, or if no period is prescribed, within thirty (30) Business Days after delivery of written notice of payment owing together with a computation of the amounts due.

 

 

(b)          Treatment of Payments. Unless otherwise required by any Final Determination, the parties agree that any payments made by one party to another party pursuant to this Agreement (other than (i) payments in respect of the Mobileye Separate Tax Liability for any Post-Deconsolidation Period, (ii) payments of interest pursuant to Section 7.05(e) of this Agreement, and (iii) payments of After Tax Amounts pursuant to Section 7.05(d) of this Agreement) shall be treated for all Tax and financial accounting purposes as nontaxable payments (dividend distributions or capital contributions, as the case may be) and accordingly, as not includible in the taxable income of the recipient or as deductible by the payor.

 

(c)          Prompt Performance. All actions required to be taken (including payments) by any party under this Agreement shall be performed within the time prescribed for performance in this Agreement, or if no period is prescribed, such actions shall be performed promptly.

 

(d)          After Tax Amounts. If, pursuant to a Final Determination, it is determined that the receipt or accrual of any payment made under this Agreement (other than payments of interest pursuant to Section 7.05(e) of this Agreement) is subject to any Tax, the party making such payment shall be liable for (a) the After Tax Amount with respect to such payment and (b) interest at the rate described in Section 7.05(e) of this Agreement on the amount of such Tax from the date such Tax accrues through the date of payment of such After Tax Amount. A party making a demand for a payment pursuant to this Agreement and for a payment of an After Tax Amount with respect to such payment shall separately specify and compute such After Tax Amount. However, a party may choose not to specify an After Tax Amount in a demand for payment pursuant to this Agreement without thereby being deemed to have waived its right subsequently to demand an After Tax Amount with respect to such payment. Mobileye’s liability for any and all payments of the Mobileye Separate Tax Liability for any Post-Deconsolidation Period shall be increased by the After Tax Amount with respect to such payment and decreased by the corresponding Tax Benefit, if any, attributable to such Mobileye Separate Tax Liability.

 

(e)          Interest. Payments pursuant to this Agreement that are not made within the period prescribed in this Agreement (the “Payment Period”) shall bear interest for the period from and including the date immediately following the last date of the Payment Period through and including the date of payment at a per annum rate equal to the prime rate as published in The Wall Street Journal on the last day of such Payment Period. Such interest will be payable at the same time as the payment to which it relates and shall be calculated on the basis of a year of three hundred sixty-five (365) days and the actual number of days for which due.

 

Section 8.      Tax Proceedings.

 

8.01.        General. Except as otherwise provided in this Agreement, Intel shall have the exclusive right, in its sole discretion, to control, contest, and represent the interests of Intel, any Intel Affiliate, Mobileye, and/or any Mobileye Affiliate in any Audit and to resolve, settle or agree to any deficiency, claim or adjustment proposed, asserted or assessed in connection with or as a result of any such Audit; provided that, (i) Intel shall not settle any Audit to the extent relating to Taxes described in Section 3.01(b) or (c) without obtaining Mobileye’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), and (ii) Mobileye shall have the right (at its sole expense) to participate in the defense of any Audit to the extent relating to Taxes described in Section 3.01(b) or (c). Intel’s rights pursuant to this Section 8.01 shall extend to any matter pertaining to the management and control of an Audit, including execution of waivers, choice of forum, scheduling of conferences and the resolution of any Tax Item. Any costs incurred in handling, settling, or contesting an Audit to the extent relating to Taxes described in Section 3.01 shall be borne by Mobileye.

 

 

8.02.        Notice. Within ten (10) Business Days after a party becomes aware of the existence of a Tax issue that may give rise to an indemnification obligation under this Agreement, such party shall give prompt notice to the other party of such issue (such notice shall contain factual information, to the extent known, describing any asserted Tax liability in reasonable detail), and shall promptly forward to the other party copies of all notices and material communications with any Taxing Authority relating to such issue. Notwithstanding any provision in Section 9.15 of this Agreement to the contrary, if a party to this Agreement fails to provide the other party notice as required by this Section 8.02, and the failure results in a detriment to the other party then any amount which the other party is otherwise required to pay pursuant to this Agreement shall be reduced by the amount of such detriment.

 

8.03.        Control of Distribution Tax Proceedings. In the event of a Distribution, Intel shall have the exclusive right, in its sole discretion, to control, contest, and represent the interests of Intel, any Intel Affiliate, Mobileye, and/or any Mobileye Affiliate in any Audits relating to Distribution Taxes and to resolve, settle or agree to any deficiency, claim or adjustment proposed, asserted or assessed in connection with or as a result of any such Audit; provided, however, that (i) Mobileye shall be entitled to participate in any such Audit, at its own costs and expenses, to the extent Mobileye or any Mobileye Affiliate would reasonably be expected to bear any material Distribution Taxes, and (ii)  Intel shall not settle any such Audit with respect to Distribution Taxes with a Taxing Authority that would reasonably be expected to result in a material Tax cost to Mobileye or any Mobileye Affiliate, without the prior consent of Mobileye (which consent shall not be unreasonably withheld, conditioned or delayed). Intel’s rights shall extend to any matter pertaining to the management and control of such Audit, including execution of waivers, choice of forum, scheduling of conferences and the resolution of any Tax Item.

 

Section 9.      Miscellaneous Provisions.

 

9.01.        Effectiveness. This Agreement shall become effective upon execution by the parties hereto.

 

 

9.02.        Cooperation and Exchange of Information.

 

(a)          Cooperation. Mobileye and Intel shall each cooperate fully (and each shall cause its respective affiliates to cooperate fully) with all reasonable requests from another party for information and materials not otherwise available to the requesting party in connection with the preparation and filing of Tax Returns, claims for refund, and Audits concerning issues or other matters covered by this Agreement or in connection with the determination of a liability for Taxes or a right to a refund of Taxes. Such cooperation shall include:

 

(i)          the retention until the expiration of the applicable statute of limitations, and the provision upon request, of copies of all Tax Returns, books, records (including information regarding ownership and Tax basis of property), documentation and other information relating to the Tax Returns, including accompanying schedules, related work papers, and documents relating to rulings or other determinations by Taxing Authorities;

 

(ii)         the execution of any document that may be necessary or reasonably helpful in connection with any Tax Proceeding, or the filing of a Tax Return or refund claim by a member of the Intel Group or the Mobileye Group, including certification, to the best of a party’s knowledge, of the accuracy and completeness of the information it has supplied; and

 

(iii)        the use of the party’s reasonable best efforts to obtain any documentation that may be necessary or reasonably helpful in connection with any of the foregoing. Each party shall make its employees and facilities available on a reasonable and mutually convenient basis in connection with the foregoing matters.

 

(b)          Retention of Records. Any party that is in possession of documentation of Intel (or any Intel Affiliate) or Mobileye (or any Mobileye Affiliate) relating to the Mobileye Business, including books, records, Tax Returns and all supporting schedules and information relating thereto (the “Mobileye Business Records”) shall retain such Mobileye Business Records for a period of [●] following the IPO Date. Thereafter, any party wishing to dispose of Mobileye Business Records in its possession (after the expiration of the applicable statute of limitations), shall provide written notice to the other party describing the documentation proposed to be destroyed or disposed of sixty (60) Business Days prior to taking such action. The other party may arrange to take delivery of any or all of the documentation described in the notice at its expense during the succeeding sixty (60) day period.

 

9.03.        Dispute Resolution. In the event that Intel and Mobileye disagree as to the amount or calculation of any payment to be made under this Agreement, or the interpretation or application of any provision under this Agreement, the parties shall attempt in good faith to resolve such dispute. If such dispute is not resolved within sixty (60) Business Days following the commencement of the dispute, Intel and Mobileye shall jointly retain a mutually agreed nationally recognized law or accounting firm (the “Dispute Firm”), to resolve the dispute. The Dispute Firm shall act as an arbitrator to resolve all points of disagreement and its decision shall be final and binding upon all parties involved. Following the decision of the Dispute Firm, Intel and Mobileye shall each take or cause to be taken any action necessary to implement the decision of the Dispute Firm. The fees and expenses relating to the Dispute Firm shall be borne equally by Intel and Mobileye, except that if the Dispute Firm determines that the position advanced by either party is frivolous, has not been asserted in good faith or for which there is not substantial authority, one hundred percent (100%) of the fees and expenses of the Dispute Firm shall be borne by such party. Notwithstanding anything in this Agreement to the contrary, the dispute resolution provisions set forth in this Section 9.03 shall not be applicable to any disagreement between the parties relating to Distribution Taxes and any such dispute shall be settled in a court of law or as otherwise agreed to by the parties.

 

 

9.04.        Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, (b) if sent designated for overnight delivery by nationally recognized overnight air courier (such as DHL or Federal Express), upon receipt of proof of delivery on a Business Day before 5:00 p.m. in the time zone of the receiving party, otherwise upon the following Business Day after receipt of proof of delivery, or (c) at the time sent (if sent before 5:00 p.m., addressee’s local time and on the next Business Day if sent after 5:00 p.m., addressee’s local time), if sent by email of a .pdf, .tif, .gif, .jpg or similar attachment. All notices and other communications must also be sent by email. All notices and other communications hereunder shall be delivered to the addresses set forth below:

 

If to Intel, to:

 

Intel Corporation
2200 Mission College Boulevard
Santa Clara, California 95054
Attention: General Counsel

 

with a copy to (which copy shall not constitute notice):

 

[●]
Email: ****

 

[●]
Email: ****

 

If to Mobileye, to:

 

Mobileye Global Inc.

c/o Mobileye B.V.
Har Hotzvim, 13 Hartom Street

P.O. Box 45157 Jerusalem 9777513, Israel
Attention: General Counsel

 

Either party may, by written notice to the other parties, change the address or the party to which any notice, request, instruction or other documents is to be delivered.

 

9.05.        Changes in Law.

 

(a)          Any reference to a provision of the Code or a law of another jurisdiction shall include a reference to any applicable successor provision or law.

 

(b)          If, due to any change in applicable law or regulations or their interpretation by any court of law or other governing body having jurisdiction subsequent to the date of this Agreement, performance of any provision of this Agreement or any transaction contemplated thereby shall become impracticable or impossible, the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such provision.

 

 

9.06.        Confidentiality. Each party shall hold and cause its directors, officers, employees, advisors and consultants to hold in strict confidence, unless compelled to disclose by judicial or administrative process or, in the opinion of its counsel, by other requirements of law, all information (other than any such information relating solely to the business or affairs of such party) concerning the other parties hereto furnished it by such other party or its representatives pursuant to this Agreement (except to the extent that such information can be shown to have been (1) in the public domain through no fault of such party or (2) later lawfully acquired from other sources not under a duty of confidentiality by the party to which it was furnished), and each party shall not release or disclose such information to any other person, except its directors, officers, employees, auditors, attorneys, financial advisors, bankers and other consultants who shall be advised of and agree to be bound by the provisions of this Section 9.06. Each party shall be deemed to have satisfied its obligation to hold confidential information concerning or supplied by the other party if it exercises the same care as it takes to preserve confidentiality for its own similar information.

 

9.07.        Successors. This Agreement shall be binding on and inure to the benefit and detriment of any successor, by merger, acquisition of assets or otherwise, to any of the parties hereto, to the same extent as if such successor had been an original party.

 

9.08.        Affiliates. This Agreement is being entered into between Intel and Mobileye on behalf of themselves and any current and future Intel Affiliates and Mobileye Affiliates, respectively. Intel shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any current and future Intel Affiliate, and Mobileye shall cause to be performed, and hereby guarantees the performance of, all actions, agreements and obligations set forth herein to be performed by any current and future Mobileye Affiliate.

 

9.09.        Authorization, Etc. Each of the parties hereto hereby represents and warrants that it has the power and authority to execute, deliver and perform this Agreement, that this Agreement has been duly authorized by all necessary corporate action on the part of such party, that this Agreement constitutes a legal, valid and binding obligation of each such party and that the execution, delivery and performance of this Agreement by such party does not contravene or conflict with any provision of law or of its charter or bylaws or any agreement, instrument or order binding on such party.

 

9.10.        Entire Agreement. This Agreement contains the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes any prior tax sharing agreements between Intel (or any Intel Affiliate) and Mobileye (or any Mobileye Affiliate) and such prior tax sharing agreements shall have no further force and effect. If, and to the extent, the provisions of this Agreement conflict with any agreement entered into in connection with a Distribution or another Deconsolidation Event, the provisions of this Agreement shall control.

 

 

9.11.        Applicable Law: Jurisdiction. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY (i) AGREES THAT THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND ALL DISPUTES, CONTROVERSIES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE BREACH, TERMINATION OR VALIDITY HEREOF SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICTS OF LAW RULES, (ii) TO BE SUBJECT TO, AND HEREBY CONSENTS AND SUBMITS TO, THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND OF THE FEDERAL COURTS SITTING IN THE STATE OF DELAWARE, (iii) TO THE EXTENT SUCH PARTY IS NOT OTHERWISE SUBJECT TO SERVICE OF PROCESS IN THE STATE OF DELAWARE HEREBY APPOINTS THE CORPORATION TRUST COMPANY, AS SUCH PARTY’S AGENT IN THE STATE OF DELAWARE FOR ACCEPTANCE OF LEGAL PROCESS AND (iv) AGREES THAT SERVICE MADE ON ANY SUCH AGENT SET FORTH IN (iii) ABOVE SHALL HAVE THE SAME LEGAL FORCE AND EFFECT AS IF SERVED UPON SUCH PARTY PERSONALLY WITHIN THE STATE OF DELAWARE.

 

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

 

9.13.        Severability. If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction (or an arbitrator or arbitration panel) to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions set forth herein shall remain in full force and effect, and shall in no way be affected, impaired, or invalidated. In the event that any such term, provision, covenant or restriction is held to be invalid, void or unenforceable, the parties hereto shall use their best efforts to find and employ an alternate means to achieve the same or substantially the same result as that contemplated by such terms, provisions, covenant, or restriction.

 

9.14.        No Third Party Beneficiaries. This Agreement is solely for the benefit of Intel, the Intel Affiliates, Mobileye and the Mobileye Affiliates. This Agreement should not be deemed to confer upon third parties any remedy, claim, liability, reimbursement, cause of action or other rights in excess of those existing without this Agreement.

 

9.15.        Waivers, Etc. No failure or delay on the part of a party in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise thereof or the exercise of any other right or power. No modification or waiver of any provision of this Agreement nor consent to any departure by the parties therefrom shall in any event be effective unless the same shall be in writing, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.

 

9.16.        Setoff. All payments to be made by any party under this Agreement may be netted against payments due to such party under this Agreement, but otherwise shall be made without setoff, counterclaim or withholding, all of which are hereby expressly waived.

 

 

9.17.        Other Remedies. Mobileye recognizes that any failure by it or any Mobileye Affiliate to comply with its obligations under Section 5 of this Agreement would, in the event of a Distribution, result in Distribution Taxes that would cause irreparable harm to Intel, Intel Affiliates, and their stockholders. Accordingly, Intel shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which Intel is entitled at law or in equity.

 

9.18.        Amendment and Modification. This Agreement may be amended, modified or supplemented only by a written agreement signed by all of the parties hereto.

 

9.19.        Waiver of Jury Trial. Each of the parties hereto irrevocably and unconditionally waives all right to trial by jury in any litigation, claim, action, suit, arbitration, inquiry, proceeding, investigation or counterclaim (whether based in contract, tort or otherwise) arising out of or relating to this Agreement or the actions of the parties hereto in the negotiation, administration, performance and enforcement thereof.

 

9.20.        Interpretations. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and “Section” references are to the sections of this Agreement unless otherwise specified. The meaning assigned to each term defined herein shall be equally applicable to both the singular and the plural forms of such term, and words denoting any gender shall include all genders. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

 

 

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by a duly authorized officer as of the date first above written.

 

	INTEL CORPORATION
	By:
	Name:
	Title:
	MOBILEYE GLOBAL INC.
	By:
	Name:
	Title:

 

[Tax Sharing Agreement]

 

 

Exhibit 10.8

 

CONTRIBUTION AND SUBSCRIPTION AGREEMENT

 

This CONTRIBUTION AND SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of [●], 2022, is entered into by and between Intel Overseas Funding Corporation, a Delaware corporation (“Parent”), Mobileye Global Inc., a Delaware corporation (“Subsidiary”), and Cyclops Holdings Corporation, a Delaware corporation (the “Contributed Company”).

 

WHEREAS, Subsidiary is a direct, wholly owned subsidiary of Parent;

 

WHEREAS, Parent directly owns one hundred percent (100%) of the equity interests (collectively, the “Cyclops Shares”) in the Contributed Company;

 

WHEREAS, the Contributed Company and Parent are currently parties to a Loan Agreement dated April 21, 2022 (a copy of which is attached hereto as Exhibit A) (the “Loan Agreement”), pursuant to which the Contributed Company is indebted to Parent;

 

WHEREAS, Parent and Subsidiary desire to enter into this Agreement in order for (i) Parent to contribute, and Subsidiary to receive, all of Parent’s right, title and interest in, to and under the Cyclops Shares, and (ii) Parent to contribute, and Subsidiary to receive, Parent’s rights and obligations with respect to US $[●] of the principal (the “Contributed Amount”), together with accrued interest thereon, owing from the Contributed Company pursuant to the Loan Agreement, each in the form of a contribution on existing capital; and

 

WHEREAS, the parties hereto intend, for U.S. federal income tax purposes, for the Contribution (defined below) to be treated as an exchange within the meaning of Section 351(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations promulgated thereunder, subject to the application of Section 357 of the Code (the “Intended Tax Treatment”).

 

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

 

CONTRIBUTION and Issuance

 

Section 1.01        Contribution. Upon the terms and subject to the conditions of this Agreement, (i) Parent hereby conveys, assigns, transfers and delivers to Subsidiary all of Parent’s right, title and interest in, to and under the Cyclops Shares, effective as of the date hereof, such that the Contributed Company becomes a direct, wholly owned subsidiary of Subsidiary, and (ii) Parent hereby conveys, assigns, transfers and delivers to Subsidiary all of Parent’s rights and obligations under the Loan Agreement with respect to the Contributed Amount and accrued interest thereon, effective as of the date hereof, collectively as a contribution on existing capital in exchange for the Subsidiary Shares (as defined below) (the “Contribution”). The conveyance, assignment, transfer and delivery of the Cyclops Shares shall be effected by delivery of any additional documents that are necessary to transfer the Cyclops Shares to Subsidiary.

 

Section 1.02        Acceptance. Subsidiary does hereby irrevocably accept the conveyance, assignment, transfer and delivery of all of Parent’s right, title and interest in, to and under the Cyclops Shares from Parent and all of Parent’s rights and obligations under the Loan Agreement with respect to the Contributed Amount and accrued interest thereon.

 

Section 1.03        Issuance of Subsidiary Shares. As consideration for the contribution set forth in Section 1.01, Subsidiary hereby issues and delivers, or causes to be issued and delivered, and Parent hereby accepts from Subsidiary such issuance and delivery of, [●] shares of Class B Common Stock, par value $0.01 per share, of Subsidiary (“Subsidiary Shares”), free and clear of all liens.

 

 

Section 1.04        Impact on Loan Agreement. By reason of the Contribution, Parent, Subsidiary and the Contributed Company acknowledge and agree that Parent shall retain its rights and obligations with respect to US $[●] of principal, together with accrued interest thereon, under the Loan Agreement, and shall continue to be treated as the Lender (as defined in the Loan Agreement) with respect thereto, and Subsidiary shall be treated as the Lender with respect to the Contributed Amount and accrued interest thereon (and Parent shall have no rights or obligations under the Loan Agreement with respect to the Contributed Amount). Except as set forth above, the Loan Agreement shall continue in full force and effect. The Contributed Company hereby acknowledges and agrees that it will make all payments in respect of the Contributed Amount and accrued interest thereon to the bank account(s) designated by Subsidiary.

 

ARTICLE II

 

Representation and Warranties

 

Section 2.01        Representations and Warranties of Parent.

 

(a)           Organization; Authorization. Parent is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly authorized by all necessary company action and has been duly and validly executed and delivered by Parent and constitutes the valid and binding obligation of Parent, enforceable against it in accordance with its terms.

 

(b)           Non-Contravention. Except for applicable filings under federal and state securities laws, the execution and delivery of this Agreement by Parent and the consummation of the transactions contemplated hereby or thereby do not require Parent to file any notice, report or other filing with, or to obtain any consent, registration, approval, permit or authorization of or from, any governmental or regulatory authority of the United States, any State thereof or any foreign jurisdiction, and do not constitute a breach or violation of, or a default under, any provision of any mortgage, lien, lease, agreement, license, instrument, law, regulation, order, arbitration, award, judgment or decree to which Parent is a party or by which its property is bound, in any such case which could prevent, materially delay or materially burden the transactions contemplated by this Agreement.

 

(c)           Title to Cyclops Shares. Parent represents and warrants that it owns, beneficially and of record, and has valid title to, and the right to transfer to Subsidiary, all of the Cyclops Shares, free and clear of all liens, and Subsidiary shall acquire, and have valid title to, the Cyclops Shares, free and clear of all liens. No person has any written or oral agreement, arrangement or understanding or option for, or any right or privilege (whether by law, preemption or contract) that is or is capable of becoming an agreement, arrangement or understanding or option for, the purchase or acquisition from Parent of any of the Cyclops Shares.

 

Section 2.02        Representations and Warranties of Subsidiary.

 

(a)           Organization; Authorization. Subsidiary is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with full corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly and validly authorized by all necessary company action and has been duly and validly executed and delivered by Subsidiary and constitutes the valid and binding obligation of Subsidiary, enforceable against it in accordance with its terms.

 

 

(b)           Non-Contravention. Except for applicable filings under federal and state securities laws, the execution and delivery of this Agreement by Subsidiary and the consummation of the transactions contemplated hereby or thereby do not require Subsidiary to file any notice, report or other filing with, or to obtain any consent, registration, approval, permit or authorization of or from, any governmental or regulatory authority of the United States, any State thereof or any foreign jurisdiction, and do not constitute a breach or violation of, or a default under, any provision of any mortgage, lien, lease, agreement, license, instrument, law, regulation, order, arbitration, award, judgment or decree to which Subsidiary is a party or by which its property is bound, in any such case which could prevent, materially delay or materially burden the transactions contemplated by this Agreement.

 

(c)           Issuance of Subsidiary Shares. Upon issuance of the Subsidiary Shares to Parent, such Subsidiary Shares will represent duly authorized, validly issued, fully paid and non-assessable shares of Class B Common Stock of Subsidiary and Parent shall be the record owner of such Subsidiary Shares.

 

ARTICLE III

 

FURTHER ASSURANCES

 

Section 3.01        Each of the parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

 

ARTICLE IV

 

MISCELLANEOUS

 

Section 4.01        Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties hereto with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, representations and warranties and agreements, both written and oral, with respect to such subject matter.

 

Section 4.02        Tax Treatment. The parties hereto agree to file any tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with and actions necessary to obtain the Intended Tax Treatment, unless otherwise required by a final determination within the meaning of Section 1313 of the Code (or any comparable provisions of state, local or non-U.S. law).

 

Section 4.03        Severability; Amendment and Waiver.

 

(a)           Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

 

 

(b)           This Agreement may be amended, and the terms hereof may be waived, only by a written instrument signed by each of the parties hereto or, in the case of a waiver, by the party hereto waiving compliance.

 

(c)           No delay on the part of any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party hereto of any right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege.

 

Section 4.04        No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto, and no provision of this Agreement shall be deemed to confer upon any third party any remedy, claim, liability, reimbursement, cause of action or other right.

 

Section 4.05        Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties hereto without the prior written consent of the other party, and any such assignment that is not consented to shall be null and void.

 

Section 4.06        Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

 

Section 4.07        Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the conflict of law principles thereof.

 

Section 4.08        Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.

 

Section 4.09        Counterparts. This Agreement may be executed in two or more counterparts (which may be delivered by facsimile or similar electronic transmission). Each counterpart when so executed and delivered shall be deemed an original, and all such counterparts taken together shall constitute one and the same instrument.

 

[Signature Page Follows]

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first written above.

 

Intel Overseas Funding Corporation

 

By:

	Name:
	Title:

 

Mobileye Global Inc.

 

By:

	Name:
	Title:

 

Cyclops Holdings Corporation

 

By:

	Name:
	Title:

 

[Signature Page to Contribution and Subscription Agreement]

 

 

 

Exhibit 10.9

 

MOBILEYE GLOBAL INC.

 

2022 EQUITY INCENTIVE PLAN

 

1. PURPOSE

 

The purpose of this Mobileye Global Inc. 2022 Equity Incentive Plan (the “Plan”) is to advance the interests of Mobileye Global Inc., a Delaware corporation, and its Subsidiaries (hereinafter collectively the “Corporation”), by stimulating the efforts of employees and Consultants who are selected to be Participants on behalf of the Corporation, aligning the long-term interests of Participants with those of stockholders, heightening the desire of Participants to continue in working toward and contributing to the success of the Corporation, assisting the Corporation in competing effectively with other enterprises for the services of new employees necessary for the continued improvement of operations, and to attract, motivate and retain the best available individuals for service to the Corporation. This Plan permits the grant of stock options, stock appreciation rights, restricted stock and restricted stock units, each of which shall be subject to such conditions based upon continued employment or service, passage of time or satisfaction of performance criteria as shall be specified pursuant to the Plan.

 

2. DEFINITIONS

 

(a) “Award” means a stock option, stock appreciation right, restricted stock or restricted stock unit granted to a Participant pursuant to the Plan.

 

(b) “Board of Directors” means the Board of Directors of the Corporation.

 

(c) “Code” shall mean the Internal Revenue Code of 1986, as such is amended from time to time, and any reference to a section of the Code shall include any successor provision of the Code.

 

(d) “Committee” shall mean the committee appointed by the Board of Directors from among its members to administer the Plan pursuant to Section 3.

 

(e) “Consultant” means any person, including any adviser, engaged by the Corporation or a Subsidiary of the Corporation to render services to such entity if the consultant or adviser: (i) renders bona fide services to the Corporation or the Subsidiary; (ii) renders services not in connection with the offer or sale of securities in a capital-raising transaction and does not directly or indirectly promote or maintain a market for the Corporation’s securities; and (iii) is a natural person.

 

(f) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time, and any reference to a section of the Exchange Act shall include any successor provision of the Exchange Act.

 

(g) “market value” means, as of any date, the value of Shares determined as follows: (i) the common stock of the Corporation is listed on any established stock exchange or a national market system, including without limitation the Nasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq Capital Market of the Nasdaq Stock Market, its market value will be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable; (ii) if the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the market value of a Share will be the mean between the high bid and low asked prices for the common stock on the day of determination (or, if no bids and asks were reported on that date, as applicable, on the last trading date such bids and asks were reported), as reported in The Wall Street Journal or such other source as the Committee deems reliable; or (iii) in the absence of an established market for the common stock, the market value will be determined in good faith by the Committee.

 

(h) “Outside Director” shall mean a member of the Board of Directors who is not otherwise an employee of the Corporation.

 

(i) “Participants” shall mean those individuals to whom Awards have been granted from time to time and any authorized transferee of such individuals.

 

(j) “Performance Award” means an Award the grant, issuance, retention, vesting and/or settlement of which is subject to satisfaction of one or more of the Performance Criteria specified in Section 10(b) or any other performance criteria.

 

(k) “Plan” means this Mobileye Global Inc. 2022 Equity Incentive Plan.

 

(l) “Share” shall mean a share of common stock, $0.01 par value, of the Corporation or the number and kind of shares of stock or other securities which shall be substituted or adjusted for such shares as provided in Section 11.

 

(m) “Subsidiary” means any corporation or entity in which the Corporation owns or controls, directly or indirectly, fifty percent (50%) or more of the voting power or economic interests of such corporation or entity.

 

 

3. ADMINISTRATION

 

(a) Composition of Committee. This Plan shall be administered by the Committee or prior to the date the Corporation becomes subject to the reporting requirements of Rule 13 or 15(d) of the Exchange Act, the Board of Directors. Effective as of the date the Corporation becomes subject to the reporting requirements of Rule 13 or 15(d) of the Exchange Act, the Committee shall consist of two or more Outside Directors who shall be appointed by the Board of Directors. The Board of Directors shall fill vacancies on the Committee and may from time to time remove or add members of the Committee. The Board of Directors, in its sole discretion, may exercise any authority of the Committee under this Plan in lieu of the Committee’s exercise thereof, and in such instances references herein to the Committee shall refer to the Board of Directors.

 

(b) Delegation and Administration. The Committee may delegate to one or more separate committees (any such committee a “Subcommittee”) composed of one or more directors of the Corporation (who may but need not be members of the Committee) the ability to grant Awards and take the other actions described in Section 3(c) with respect to Participants who are not executive officers, and such actions shall be treated for all purposes as if taken by the Committee. The Committee may delegate to a Subcommittee of one or more officers of the Corporation the ability to grant Awards and take the other actions described in Section 3(c) with respect to Participants (other than any such officers themselves) who are not directors or executive officers, provided however that the resolution so authorizing such officer(s) shall specify the total number of Shares, rights or options such Subcommittee may so award, and such actions shall be treated for all purposes as if taken by the Committee. Any action by any such Subcommittee within the scope of such delegation shall be deemed for all purposes to have been taken by the Committee, and references in this Plan to the Committee shall include any such Subcommittee. The Committee may delegate the day to day administration of the Plan to an officer or officers of the Corporation or one or more agents, and such administrator(s) may have the authority to execute and distribute agreements or other documents evidencing or relating to Awards granted by the Committee under this Plan, to maintain records relating to the grant, vesting, exercise, forfeiture or expiration of Awards, to process or oversee the issuance of Shares upon the exercise, vesting and/or settlement of an Award, to interpret the terms of Awards and to take such other actions as the Committee may specify. Any action by any such administrator within the scope of its delegation shall be deemed for all purposes to have been taken by the Committee and references in this Plan to the Committee shall include any such administrator, provided that the actions and interpretations of any such administrator shall be subject to review and approval, disapproval or modification by the Committee.

 

(c) Powers of the Committee. Subject to the express provisions and limitations set forth in this Plan, the Committee shall be authorized and empowered to do all things necessary or desirable, in its sole discretion, in connection with the administration of this Plan, including, without limitation, the following:

 

(i) to prescribe, amend, and rescind rules and regulations relating to the Plan, including the forms of Award Agreement and manner of acceptance of an Award, and to take or approve such further actions as it determines necessary or appropriate to the administration of the Plan and Awards, such as correcting a defect or supplying any omission, or reconciling any inconsistency so that the Plan or any Award Agreement complies with applicable law, regulations and listing requirements and so as to avoid unanticipated consequences or address unanticipated events (including any temporary closure of an applicable stock exchange or a national market system upon which Shares are traded, disruption of communications or natural catastrophe) deemed by the Committee to be inconsistent with the purposes of the Plan or any Award Agreement, provided that no such action shall be taken absent stockholder approval to the extent required under Section 13;

 

(ii) to determine which persons are eligible to be Participants, to which of such persons, if any, Awards shall be granted hereunder and the timing of any such Awards, and to grant Awards;

 

(iii) to grant Awards to Participants and determine the terms and conditions thereof, including the number of Shares subject to Awards and the exercise or purchase price of such Shares and the circumstances under which Awards become exercisable or vested or are forfeited or expire, which terms may but need not be conditioned upon the passage of time, continued employment or service, the satisfaction of performance criteria, the occurrence of certain events, or other factors;

 

(iv) to establish or verify the extent of satisfaction of any performance goals or other conditions applicable to the grant, issuance, exercisability, vesting and/or ability to retain any Award;

 

(v) to prescribe and amend the terms of the agreements or other documents evidencing Awards made under this Plan (which need not be identical);

 

 

(vi) to determine whether, and the extent to which, adjustments are required pursuant to Section 11;

 

(vii) to cancel any Award, without consideration and without requirement of the consent of the Participant to whom such Award has been granted, in the event that the Committee has determined that such Award is without any economic value in excess of nominal or par value or prospect of future value;

 

(viii) to interpret and construe this Plan, any rules and regulations under this Plan and the terms and conditions of any Award granted hereunder, and to make exceptions to any such provisions in good faith and for the benefit of the Corporation; and

 

(ix) to make all other determinations deemed necessary or advisable for the administration of this Plan.

 

(d) Effect of Change in Status. The Committee shall have the discretion to determine the effect upon an Award and upon an individual’s status as an employee under the Plan (including whether a Participant shall be deemed to have experienced a termination of employment or other change in status) and upon the vesting, expiration or forfeiture of an Award in the case of (i) any individual who is employed by an entity that ceases to be a Subsidiary of the Corporation, (ii) any leave of absence approved by the Corporation or a Subsidiary, (iii) any transfer between locations of employment with the Corporation or a Subsidiary or between the Corporation and any Subsidiary or between any Subsidiaries, (iv) any change in the Participant’s status from an employee to a Consultant or member of the Board of Directors, or vice versa, and (v) at the request of the Corporation or a Subsidiary, any employee who becomes employed by any partnership, joint venture, corporation or other entity not meeting the requirements of a Subsidiary.

 

(e) Determinations of the Committee. All decisions, determinations and interpretations by the Committee regarding this Plan shall be final and binding on all persons. The Committee may consider such factors as it deems relevant to making such decisions, determinations and interpretations including, without limitation, the recommendations or advice of any director, officer or employee of the Corporation and such attorneys, consultants and accountants as it may select. Any decision or action by the Committee may be contested only by a Participant or other holder of an Award and only on the grounds that such decision or action was arbitrary or capricious or was unlawful, and any review of such decision or action shall be limited to determining whether the Committee’s decision or action was arbitrary or capricious or was unlawful.

 

4. PARTICIPANTS

 

Awards under the Plan may be granted to any person who is an employee, Consultant or Outside Director of the Corporation. Outside Directors may be granted Awards only pursuant to Section 9 of the Plan. The status of the Chairman of the Board of Directors as an employee or Outside Director shall be determined by the Committee.

 

5. EFFECTIVE DATE AND EXPIRATION OF PLAN

 

(a) Effective Date. This Plan was approved by the Board of Directors on January 30, 2022 and became effective on                       .

 

(b) Expiration Date. The Plan shall remain available for the grant of Awards until January 30, 2032 or such earlier date as the Board of Directors may determine; provided, however, that ISOs (as defined below) may not be granted under the Plan after the 10^th anniversary of the date of the Board of Directors’ most recent approval of the Plan. The expiration of the Committee’s authority to grant Awards under the Plan will not affect the operation of the terms of the Plan or the Corporation’s and Participants’ rights and obligations with respect to Awards granted on or prior to the expiration date of the Plan.

 

6. SHARES SUBJECT TO THE PLAN

 

(a) Aggregate Limits. Subject to adjustment as provided in Section 11, the aggregate number of Shares authorized for issuance pursuant to Awards under the Plan is                       . The Shares subject to the Plan may be either Shares reacquired by the Corporation, including Shares purchased in the open market, as applicable, or authorized but unissued Shares. Any Shares subject to an Award which for any reason expires or terminates unexercised or is not earned in full may again be made subject to an Award under the Plan. Notwithstanding the preceding sentence, the following Shares may not again be made available for issuance as Awards under the Plan: (i) Shares not issued or delivered as a result of the net settlement of an outstanding Stock Appreciation Right, (ii) Shares used to pay the exercise price or withholding taxes related to an outstanding Award, or (iii) Shares repurchased on the open market, if applicable, with the proceeds of the option exercise price.

 

(b) Tax Code Limits. Notwithstanding anything to the contrary in this Plan, the foregoing limitations shall be subject to adjustment under Section 11. The aggregate number of Shares issued pursuant to incentive stock options granted under the Plan shall not exceed                      , which limitation shall be subject to adjustment under Section 11 only to the extent that such adjustment is consistent with adjustments permitted of a plan authorizing incentive stock options under Section 422 of the Code.

 

 

7. PLAN AWARDS

 

(a) Award Types. The Committee, on behalf of the Corporation, is authorized under this Plan to grant, award and enter into the following arrangements or benefits under the Plan provided that their terms and conditions are not inconsistent with the provisions of the Plan: stock options, stock appreciation rights, restricted stock and restricted stock units. Such arrangements and benefits are sometimes referred to herein as “Awards.” The Committee, in its discretion, may determine that any Award granted hereunder shall be a Performance Award.

 

(i) Stock Options. A “Stock Option” is a right to purchase a number of Shares at such exercise price, at such times, and on such other terms and conditions as are specified in or determined pursuant to the document(s) evidencing the Award (the “Option Agreement”). The Committee may grant Stock Options intended to be eligible to qualify as incentive stock options (“ISOs”) pursuant to Section 422 of the Code and Stock Options that are not intended to qualify as ISOs (“Non-qualified Stock Options”), as it, in its sole discretion, shall determine.

 

(ii) Stock Appreciation Rights. A “Stock Appreciation Right” or “SAR” is a right to receive, in cash or stock (as determined by the Committee), value with respect to a specific number of Shares equal to or otherwise based on the excess of (i) the market value of a Share at the time of exercise over (ii) the exercise price of the right, subject to such terms and conditions as are expressed in the document(s) evidencing the Award (the “SAR Agreement”).

 

(iii) Restricted Stock. A “Restricted Stock” Award is an award of Shares, the grant, issuance, retention and/or vesting of which is subject to such conditions as are expressed in the document(s) evidencing the Award (the “Restricted Stock Agreement”).

 

(iv) Restricted Stock Unit. A “Restricted Stock Unit” Award is an award of a right to receive, in cash or stock (as determined by the Committee) the market value of one Share, the grant, issuance, retention and/or vesting of which is subject to such conditions as are expressed in the document(s) evidencing the Award (the “Restricted Stock Unit Agreement”).

 

(b) Grants of Awards. An Award may consist of one of the foregoing arrangements or benefits or two or more of them in tandem or in the alternative.

 

8. EMPLOYEE, CONSULTANT PARTICIPANT AWARDS

 

(a) Grant, Terms and Conditions of Stock Options and SARs

 

The Committee may grant Stock Options or SARs at any time and from time to time prior to the expiration of the Plan to eligible Participants selected by the Committee. No Participant shall have any rights as a stockholder with respect to any Shares subject to Stock Options or SARs hereunder until said Shares have been issued. Each Stock Option or SAR shall be evidenced only by such agreements, notices and/or terms or conditions documented in such form (including by electronic communications) as may be approved by the Committee. Each Stock Option grant will expressly identify the Stock Option as an ISO or as a Non-qualified Stock Option. Stock Options or SARs granted pursuant to the Plan need not be identical but each must contain or be subject to the following terms and conditions:

 

(i) Price. The purchase price (also referred to as the exercise price) under each Stock Option or SAR granted hereunder shall be established by the Committee. The purchase price per Share shall not be less than 100% of the market value of a Share on the date of grant. The exercise price of a Stock Option shall be paid in cash or in such other form if and to the extent permitted by the Committee, including without limitation by delivery of already owned Shares, withholding (either actually or by attestation) of Shares otherwise issuable under such Stock Option and/or by payment under a broker-assisted sale and remittance program acceptable to the Committee.

 

(ii) No Repricing. Other than in connection with a change in the Corporation’s capitalization or other transaction as described in Section 11(a) through (d) of the Plan, the Corporation shall not, without stockholder approval, reduce the purchase price of a Stock Option or SAR and, at any time when the purchase price of a Stock Option or SAR is above the market value of a Share, the Corporation shall not, without stockholder approval (except in the case of a transaction described in Section 11(a) through (d) of the Plan), cancel and re-grant or exchange such Stock Option or SAR for a new Award with a lower (or no) purchase price or for cash.

 

 

(iii) No Reload Grants. Stock Options shall not be granted under the Plan in consideration for and shall not be conditioned upon the delivery of Shares to the Corporation in payment of the exercise price and/or tax withholding obligation under any other stock option.

 

(iv) Duration, Exercise and Termination of Stock Options and SARs. Each Stock Option or SAR shall be exercisable at such time and in such installments during the period prior to the expiration of the Stock Option or SAR as determined by the Committee. The Committee shall have the right to make the timing of the ability to exercise any Stock Option or SAR subject to continued employment or service, the passage of time and/or such performance requirements as deemed appropriate by the Committee. At any time after the grant of a Stock Option, the Committee may reduce or eliminate any restrictions on the Participant’s right to exercise all or part of the Stock Option.

 

Each Stock Option or SAR must expire within a period of not more than ten (10) years from the grant date. In each case, the Option Agreement or SAR Agreement may provide for expiration prior to the end of the stated term of the Award in the event of the termination of employment or service of the Participant to whom it was granted.

 

(v) Suspension or Termination of Stock Options and SARs. If at any time (including after a notice of exercise has been delivered) the Committee, including any Subcommittee or administrator authorized pursuant to Section 3(b) (any such person, an “Authorized Officer”), reasonably believes that a Participant, other than an Outside Director, has committed an act of misconduct as described in this Section, the Authorized Officer may suspend the Participant’s right to exercise any Stock Option or SAR pending a determination of whether an act of misconduct has been committed. If the Committee or an Authorized Officer determines a Participant, other than an Outside Director, has committed an act of embezzlement, fraud, dishonesty, nonpayment of any obligation owed to the Corporation, breach of fiduciary duty or deliberate disregard of Corporation rules resulting in loss, damage or injury to the Corporation, or if a Participant makes an unauthorized disclosure of any Corporation trade secret or confidential information, engages in any conduct constituting unfair competition, induces any customer to breach a contract with the Corporation or induces any principal for whom the Corporation acts as agent to terminate such agency relationship, the Committee or an Authorized Officer may determine that neither the Participant nor his or her estate shall be entitled to exercise any Stock Option or SAR whatsoever. In addition, for any Participant who is designated as an “executive officer” by the Board of Directors, if the Committee determines that the Participant engaged in an act of embezzlement, fraud or breach of fiduciary duty during the Participant’s employment that contributed to an obligation to restate the Corporation’s financial statements (“Contributing Misconduct”), the Committee may require the Participant to repay to the Corporation, in cash and upon demand, the Option Proceeds (as defined below) resulting from any sale or other disposition (including to the Corporation) of Shares issued or issuable upon exercise of a Stock Option or SAR if the sale or disposition was effected during the twelve-month period following the first public issuance or filing with the SEC of the financial statements required to be restated. The term “Option Proceeds” means, with respect to any sale or other disposition (including to the Corporation) of Shares issuable or issued upon exercise of a Stock Option or SAR, an amount determined appropriate by the Committee to reflect the effect of the restatement, up to the amount equal to the number of Shares sold or disposed of multiplied by the difference between the market value per Share at the time of such sale or disposition and the exercise price. The return of Option Proceeds is in addition to and separate from any other relief available to the Corporation due to the executive officer’s Contributing Misconduct. Any determination by the Committee or an Authorized Officer with respect to the foregoing shall be final, conclusive and binding on all interested parties. For any Participant who is an executive officer, the determination of the Committee or of the Authorized Officer shall be subject to the approval of the Board of Directors.

 

(vi) Conditions and Restrictions Upon Securities Subject to Stock Options or SARs. Subject to the express provisions of the Plan, the Committee may provide that the Shares issued upon exercise of a Stock Option or SAR shall be subject to such further conditions or agreements as the Committee in its discretion may specify prior to the exercise of such Stock Option or SAR, including, without limitation, conditions on vesting or transferability, forfeiture or repurchase provisions. The obligation to make payments with respect to SARs may be satisfied through cash payments or the delivery of Shares, or a combination thereof as the Committee shall determine. The Committee may establish rules for the deferred delivery of Common Stock upon exercise of a Stock Option or SAR with the deferral evidenced by use of Restricted Stock Units equal in number to the number of Shares whose delivery is so deferred.

 

(vii) Other Terms and Conditions. Stock Options and SARs may also contain such other provisions, which shall not be inconsistent with any of the foregoing terms, as the Committee shall deem appropriate.

 

 

(viii) ISOs. Stock Options intending to qualify as ISOs may only be granted to employees of the Corporation within the meaning of the Code, as determined by the Committee. No ISO shall be granted to any person if immediately after the grant of such Award, such person would own stock, including stock subject to outstanding Awards held by him or her under the Plan or any other plan established by the Corporation, amounting to more than ten percent (10%) of the total combined voting power or value of all classes of stock of the Corporation. To the extent that the Option Agreement specifies that a Stock Option is intended to be treated as an ISO, the Stock Option is intended to qualify to the greatest extent possible as an “incentive stock option” within the meaning of Section 422 of the Code, and shall be so construed; provided, however, that any such designation shall not be interpreted as a representation, guarantee or other undertaking on the part of the Corporation that the Stock Option is or will be determined to qualify as an ISO. If and to the extent that any Shares are issued under a portion of any Stock Option that exceeds the $100,000 limitation of Section 422 of the Code, such Shares shall not be treated as issued under an ISO notwithstanding any designation otherwise. Certain decisions, amendments, interpretations and actions by the Committee and certain actions by a Participant may cause a Stock Option to cease to qualify as an ISO pursuant to the Code and by accepting a Stock Option the Participant agrees in advance to such disqualifying action.

 

(b) Grant, Terms and Conditions of Restricted Stock and Restricted Stock Units

 

The Committee may grant Restricted Stock or Restricted Stock Units at any time and from time to time prior to the expiration of the Plan to eligible Participants selected by the Committee. A Participant shall have rights as a stockholder with respect to any Shares subject to a Restricted Stock Award hereunder only to the extent specified in this Plan or the Restricted Stock Agreement evidencing such Award. Awards of Restricted Stock or Restricted Stock Units shall be evidenced only by such agreements, notices and/or terms or conditions documented in such form (including by electronic communications) as may be approved by the Committee. Awards of Restricted Stock or Restricted Stock Units granted pursuant to the Plan need not be identical but each must contain or be subject to the following terms and conditions:

 

(i) Terms and Conditions. Each Restricted Stock Agreement and each Restricted Stock Unit Agreement shall contain provisions regarding (a) the number of Shares subject to such Award or a formula for determining such, (b) the purchase price of the Shares, if any, and the means of payment for the Shares, (c) the performance criteria, if any, and level of achievement versus these criteria that shall determine the number of Shares granted, issued, retainable and/or vested, (d) such terms and conditions on the grant, issuance, vesting and/or forfeiture of the Shares as may be determined from time to time by the Committee, (e) restrictions on the transferability of the Shares and (f) such further terms and conditions as may be determined from time to time by the Committee, in each case not inconsistent with this Plan.

 

(ii) Sale Price. Subject to the requirements of applicable law, the Committee shall determine the price, if any, at which Shares of Restricted Stock or Restricted Stock Units shall be sold or awarded to a Participant, which may vary from time to time and among Participants and which may be below the market value of such Shares at the date of grant or issuance.

 

(iii) Share Vesting. The grant, issuance, retention and/or vesting of Shares under Restricted Stock or Restricted Stock

Unit Awards shall be at such time and in such installments as determined by the Committee or under criteria established by the Committee. The Committee shall have the right to make the timing of the grant and/or the issuance, the ability to retain and/or the vesting of Shares under Restricted Stock or Restricted Stock Unit Awards subject to the Participant’s continued employment or service, passage of time and/or such performance criteria and level of achievement versus these criteria, as deemed appropriate by the Committee, which criteria may be based on financial performance and/or personal performance evaluations. No condition that is based on performance criteria and level of achievement versus such criteria shall be based on performance over a period of less than one year.

 

(iv) Termination of Employment/Service. The Restricted Stock or Restricted Stock Unit Agreement may provide for the forfeiture or cancellation of the Restricted Stock or Restricted Stock Unit Award, in whole or in part, in the event of the termination of employment or service of the Participant to whom it was granted.

 

(v) Restricted Stock Units. Except to the extent this Plan or the Committee specifies otherwise, Restricted Stock Units represent an unfunded and unsecured obligation of the Corporation and do not confer any of the rights of a stockholder until Shares are issued thereunder. Settlement of Restricted Stock Units upon expiration of the deferral or vesting period shall be made in Shares or otherwise as determined by the Committee. Dividends or dividend equivalent rights shall be payable in cash or in additional shares with respect to Restricted Stock Units only to the extent specifically provided for by the Committee and subject to the limitations of Section 10(c). Until a Restricted Stock Unit is settled, the number of Shares represented by a Restricted Stock Unit shall be subject to adjustment pursuant to Section 11. Any Restricted Stock Units that are settled after the Participant’s death shall be distributed to the Participant’s designated beneficiary(ies) or, if none was designated, the Participant’s estate.

 

 

(vi) Suspension or Termination of Restricted Stock and Restricted Stock Units. If at any time the Committee, including any Subcommittee or administrator authorized pursuant to Section 3(b) (any such person, an “Authorized Officer”), reasonably believes that a Participant, other than an Outside Director, has committed an act of misconduct as described in this Section, the Authorized Officer may suspend the vesting of Shares under the Participant’s Restricted Stock or Restricted Stock Unit Awards pending a determination of whether an act of misconduct has been committed. If the Committee or an Authorized Officer determines a Participant, other than an Outside Director, has committed an act of embezzlement, fraud, dishonesty, nonpayment of any obligation owed to the Corporation, breach of fiduciary duty or deliberate disregard of Corporation rules resulting in loss, damage or injury to the Corporation, or if a Participant makes an unauthorized disclosure of any Corporation trade secret or confidential information, engages in any conduct constituting unfair competition, induces any customer to breach a contract with the Corporation or induces any principal for whom the Corporation acts as agent to terminate such agency relationship, the Committee or an Authorized Officer may determine that the Participant’s Restricted Stock or Restricted Stock Unit Agreement shall be forfeited and cancelled. In addition, for any Participant who is designated as an “executive officer” by the Board of Directors, if the Committee determines that the Participant engaged in an act of embezzlement, fraud or breach of fiduciary duty during the Participant’s employment that contributed to an obligation to restate the Corporation’s financial statements (“Contributing Misconduct”), the Committee may require the Participant to repay to the Corporation, in cash and upon demand, the Restricted Stock Proceeds (as defined below) resulting from any sale or other disposition (including to the Corporation) of Shares issued or issuable upon the vesting of Restricted Stock or a Restricted Stock Unit if the sale or disposition was effected during the twelve-month period following the first public issuance or filing with the SEC of the financial statements required to be restated. The term “Restricted Stock Proceeds” means, with respect to any sale or other disposition (including to the Corporation) of Shares issued or issuable upon vesting of Restricted Stock or a Restricted Stock Unit, an amount determined appropriate by the Committee to reflect the effect of the restatement, up to the amount equal to the market value per Share at the time of such sale or other disposition multiplied by the number of Shares or units sold or disposed of. The return of Restricted Stock Proceeds is in addition to and separate from any other relief available to the Corporation due to the executive officer’s Contributing Misconduct. Any determination by the Committee or an Authorized Officer with respect to the foregoing shall be final, conclusive and binding on all interested parties. For any Participant who is an executive officer, the determination of the Committee or of the Authorized Officer shall be subject to the approval of the Board of Directors.

 

9. OUTSIDE DIRECTOR AWARDS

 

The number of Awards granted to each Outside Director in a fiscal year of the Corporation (“Outside Director Awards”) is limited, so that the grant date fair value of all Outside Director Awards granted by the Board of Directors combined with all cash-based compensation earned in the same fiscal year, may not exceed $500,000. Notwithstanding anything to the contrary in this Plan, the foregoing limitation shall be subject to adjustment under Section 11. The number of Shares subject to each Outside Director Award, or the formula pursuant to which such number shall be determined, the type or types of Awards included in the Outside Director Awards, the date of grant and the vesting, expiration and other terms applicable to such Outside Director Awards shall be specified from time to time by the Board of Directors, subject to the terms of this Plan, including the terms specified in Section 8. If the Board of Directors reasonably believes that an Outside Director has committed an act of misconduct as specified in Section 8(a)(v) or 8(b)(vi), the Board of Directors may suspend the Outside Director’s right to exercise any Stock Option or SAR and/or the vesting of any Restricted Stock or Restricted Stock Unit Award pending a determination of whether an act of misconduct has been committed. If the Board of Directors determines that an Outside Director has committed an act of misconduct, neither the Outside Director nor his or her estate shall be entitled to exercise any Stock Option or SAR whatsoever and shall forfeit any unvested Restricted Stock or Restricted Stock Unit Award.

 

10.  OTHER PROVISIONS APPLICABLE TO AWARDS

 

(a) Transferability. Unless the agreement or other document evidencing an Award (or an amendment thereto authorized by the Committee) expressly states that the Award is transferable as provided hereunder, no Award granted under this Plan, nor any interest in such Award, may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner, other than by will or the laws of descent and distribution or as permitted by Rule 701 of the Securities Act of 1933. Further, until the Corporation becomes subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, or after the Board of Directors or the Committee, as applicable, determines that it is, will, or may no longer be relying upon the exemption from registration under the Exchange Act as set forth in Rule 12h-1(f) promulgated under the Exchange Act, an Option, or prior to exercise, the Shares subject to the Option, may not be pledged, hypothecated or otherwise transferred or disposed of, in any manner, including by entering into any short position, any “put equivalent position” or any “call equivalent position” (as defined in Rule 16a-1(h) and Rule 16a-1(b) of the Exchange Act, respectively), other than to (i) persons who are “family members” (as defined in Rule 701(c)(3) of the Securities Act) through gifts or domestic relations orders, or (ii) to an executor or guardian of the Participant upon the death or disability of the Participant..

 

 

(b)  Performance Criteria. For purposes of this Plan, the term “Performance Criteria” shall mean any one or more of the following performance criteria or any other performance criteria, either individually, alternatively or in any combination, applied to either the Corporation as a whole or to a business unit or Subsidiary, either individually, alternatively or in any combination, and measured either annually or cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to previous years’ results or to a designated comparison group, on a U.S. generally accepted accounting principles (“GAAP”) or non-GAAP basis, in each case as specified by the Committee in the Award: (a) cash flow, (b) earnings per share, (c) earnings before one or more of interest, taxes, depreciation and amortization, (d) return on equity, (e) total stockholder return, (f) share price performance, (g) return on capital, (h) return on assets or net assets, (i) revenue, (j) income or net income, (k) operating income or net operating income, (l) operating profit or net operating profit, (m) gross margin, operating margin or profit margin, (n) return on operating revenue, (o) return on invested capital, (p) market segment share, (q) product release schedules, (r) new product innovation, (s) product cost reduction through advanced technology, (t) brand recognition/acceptance, (u) product ship targets, or (v) customer satisfaction. The Committee may appropriately adjust any evaluation of performance under a Performance Criteria to exclude any of the following events that occurs during a performance period: (i) asset write-downs, (ii) litigation or claim judgments or settlements, (iii) the effect of changes in or provisions under tax law, accounting principles or other such laws or provisions affecting reported results, (iv) accruals for reorganization and restructuring programs, (v) any infrequently occurring or other unusual items, either under applicable accounting provisions or described in management’s discussion and analysis of financial condition and results of operations appearing in the Corporation’s annual report to stockholders for the applicable year, and (vi) any other events as the Committee shall deem appropriate, if such adjustment is timely approved in connection with the establishment of Performance Criteria. Notwithstanding satisfaction of any completion of any Performance Criteria, to the extent specified at the time of grant of an Award, the number of Shares, Stock Options, SARs, Restricted Stock Units or other benefits granted, issued, retainable and/or vested under an Award on account of satisfaction of such Performance Criteria may be reduced by the Committee on the basis of such further considerations as the Committee in its sole discretion shall determine.

 

(c) Dividends. Unless otherwise provided by the Committee, no adjustment shall be made in Shares issuable under Awards on account of cash dividends that may be paid or other rights that may be issued to the holders of Shares prior to their issuance under any Award. The Committee shall specify whether dividends or dividend equivalent amounts shall be credited and/or payable to any Participant with respect to the Shares subject to any Award; provided, however, that in no event will dividends or dividend equivalents be credited or payable in respect of Stock Options or SARs. Notwithstanding the foregoing, dividends or dividend equivalents credited/payable in connection with an Award that is not yet vested shall be subject to the same restrictions and risk of forfeiture as the underlying Award and shall not be paid until the underlying Award vests.

 

(d) Documents Evidencing Awards. The Committee shall, subject to applicable law, determine the date an Award is deemed to be granted. The Committee or, except to the extent prohibited under applicable law, its delegate(s) may establish the terms of agreements or other documents evidencing Awards under this Plan and may, but need not, require as a condition to any such agreement’s or document’s effectiveness that such agreement or document be executed by the Participant, including by electronic signature or other electronic indication of acceptance, and that such Participant agree to such further terms and conditions as specified in such agreement or document. The grant of an Award under this Plan shall not confer any rights upon the Participant holding such Award other than such terms, and subject to such conditions, as are specified in this Plan as being applicable to such type of Award (or to all Awards) or as are expressly set forth in the agreement or other document evidencing such Award.

 

(e) Additional Restrictions on Awards.

 

(i) Either at the time an Award is granted or by subsequent action, the Committee may, but need not, impose such restrictions, conditions or limitations as it determines appropriate as to the timing and manner of any resales by a Participant or other subsequent transfers by a Participant of any Shares issued under an Award, including without limitation (a) restrictions under an insider trading policy, (b) restrictions designed to delay and/or coordinate the timing and manner of sales by the Participant or Participants, and (c) restrictions as to the use of a specified brokerage firm for receipt, resales or other transfers of such Shares.

 

(ii) In connection with an initial offering of the Corporation’s Shares pursuant to a registration statement filed by the Corporation with the Securities and Exchange Commission and upon request of the Corporation or the underwriters managing such offering of the Corporation’s securities, Participants shall not sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any securities of the Corporation however or whenever acquired (other than those included in the registration) without the prior written consent of the Corporation or such underwriters, as the case may be, for such period of time (not to exceed 180 days) from the effective date of such registration as may be requested by the Corporation or such managing underwriters and Participant shall execute an agreement reflecting the foregoing as may be requested by the underwriters in connection with such offering. Notwithstanding the foregoing, if during the last 17 days of the restricted period, the Corporation issues an earnings release or material news or a material event relating to the Corporation occurs, or prior to the expiration of the restricted period the Corporation announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period, then, upon the request of the managing underwriter, to the extent required by any Financial Industry Regulatory Authority rules, the restrictions imposed by this subsection shall continue to apply until the end of the third trading day following the expiration of the 15-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. In no event will the restricted period extend beyond 216 days after the effective date of the registration statement.

 

 

(f) Subsidiary Awards. In the case of a grant of an Award to any Participant employed by or providing services to a Subsidiary, such grant may, if the Committee so directs, be implemented by the Corporation issuing any subject Shares to the Subsidiary, for such lawful consideration as the Committee may determine, upon the condition or understanding that the Subsidiary will transfer the Shares to the Participant in accordance with the terms of the Award specified by the Committee pursuant to the provisions of the Plan. Notwithstanding any other provision hereof, such Award may be issued by and in the name of the Subsidiary and shall be deemed granted on such date as the Committee shall determine.

 

(g) Compensation Recovery. This provision applies to any policy adopted by any exchange on which the securities of the Corporation are listed pursuant to Section 10D of the Exchange Act, as applicable. To the extent any such policy requires the repayment of incentive-based compensation received by a Participant, whether paid pursuant to an Award granted under this Plan or any other plan of incentive-based compensation maintained in the past or adopted in the future by the Corporation, by accepting an Award under this Plan, the Participant agrees to the repayment of such amounts to the extent required by such policy and applicable law.

 

11. ADJUSTMENT OF AND CHANGES IN THE COMMON STOCK

 

(a) The existence of outstanding Awards shall not affect in any way the right or power of the Corporation or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations, exchanges, or other changes in the Corporation’s capital structure or its business, or any merger or consolidation of the Corporation or any issuance of Shares or other securities or subscription rights thereto, or any issuance of bonds, debentures, preferred or prior preference stock ahead of or affecting the Shares or other securities of the Corporation or the rights thereof, or the dissolution or liquidation of the Corporation, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. Further, except as expressly provided herein or by the Committee, (i) the issuance by the Corporation of shares of stock or any class of securities convertible into shares of stock of any class, for cash, property, labor or services, upon direct sale, upon the exercise of rights or warrants to subscribe therefor, or upon conversion of shares or obligations of the Corporation convertible into such shares or other securities, (ii) the payment of a dividend in property other than Shares, or (iii) the occurrence of any similar transaction, and in any case whether or not for fair value, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number of Shares subject to Stock Options or other Awards theretofore granted or the purchase price per Share, unless the Committee shall determine, in its sole discretion, that an adjustment is necessary or appropriate provided, however, that the Administrator will make such adjustments to an Award required by Section 25102(o) of the California Corporations Code to the extent the Corporation is relying upon the exemption afforded thereby with respect to the Award.

 

(b) If the outstanding Shares or other securities of the Corporation, or both, for which the Award is then exercisable or as to which the Award is to be settled shall at any time be changed or exchanged by declaration of a stock dividend, stock split, combination of shares, extraordinary dividend of cash and/or assets, recapitalization, reorganization or any similar equity restructuring transaction (as that term is used in Accounting Standards Codification 718) affecting the Shares or other securities of the Corporation, the Committee shall equitably adjust the number and kind of Shares or other securities that are subject to this Plan and to the limits under Sections 6 and 9 and that are subject to any Awards theretofore granted, and the exercise or settlement prices of such Awards, so as to maintain the proportionate number of Shares or other securities subject to such Awards without changing the aggregate exercise or settlement price, if any.

 

(c) No right to purchase fractional Shares shall result from any adjustment in Stock Options or SARs pursuant to this Section 11. In case of any such adjustment, the Shares subject to the Stock Option or SAR shall be rounded down to the nearest whole share.

 

(d) Any other provision hereof to the contrary notwithstanding (except Section 11(a)), in the event the Corporation is a party to a merger or other reorganization, outstanding Awards shall be subject to the agreement of merger or reorganization. Such agreement may provide, without limitation, for the assumption of outstanding Awards by the surviving corporation or its parent, for their continuation by the Corporation (if the Corporation is a surviving corporation), for accelerated vesting and accelerated expiration, or for settlement in cash.

 

 

12. LISTING OR QUALIFICATION OF COMMON STOCK

 

In the event that the Committee determines in its discretion that the listing or qualification of the Shares available for issuance under the Plan on any securities exchange or quotation or trading system or under any applicable law or governmental regulation is necessary as a condition to the issuance of such Shares, a Stock Option or SAR may not be exercised in whole or in part and a Restricted Stock or Restricted Stock Unit Award shall not vest or be settled unless such listing, qualification, consent or approval has been unconditionally obtained.

 

13. TERMINATION OR AMENDMENT OF THE PLAN

 

The Board of Directors may amend, alter or discontinue the Plan and the Board of Directors or the Committee may to the extent permitted by the Plan amend any agreement or other document evidencing an Award made under this Plan, including pursuant to Section 3(c)(vii), provided, however, that the Corporation shall submit for stockholder approval any amendment (other than an amendment pursuant to the adjustment provisions of Section 11) required to be submitted for stockholder approval by an applicable stock exchange or a national market system upon which Shares are traded or that otherwise would:

 

(a) Increase the maximum number of Shares for which Awards may be granted under this Plan;

 

(b) Reduce the price at which Stock Options may be granted below the price provided for in Section 8(a);

 

(c) Reduce the option price of outstanding Stock Options;

 

(d) Extend the term of this Plan;

 

(e) Change the class of persons eligible to be Participants; or

 

(f) Increase the limits in Section 6.

 

In addition, no such amendment or alteration shall be made which would impair the rights of any Participant, without such Participant’s consent, under any Award theretofore granted, provided that no such consent shall be required with respect to any amendment or alteration made pursuant to Section 3(c)(vii) or if the Committee otherwise determines in its sole discretion that such amendment or alteration either (i) is required or advisable in order for the Corporation, the Plan or the Award to satisfy or conform to any law or regulation or to meet the requirements of any accounting standard, or (ii) is not reasonably likely to significantly diminish the benefits provided under such Award, or that any such diminishment has been adequately compensated.

 

14. WITHHOLDING

 

To the extent required by applicable federal, state, local or foreign law, the Committee may and/or a Participant shall make arrangements satisfactory to the Corporation for the satisfaction of any withholding tax obligations that arise with respect to any Stock Option, SAR, Restricted Stock or Restricted Stock Unit Award, or any sale of Shares. The Corporation shall not be required to issue Shares or to recognize the disposition of such Shares until such obligations are satisfied. To the extent permitted or required by the Committee, these obligations may or shall be satisfied by having the Corporation withhold a portion of the Shares of stock that otherwise would be issued to a Participant under such Award or by tendering Shares previously acquired by the Participant equal to an amount no greater than the maximum statutory tax rate applicable to such Participant in all relevant jurisdictions, and in all cases reduced by the amount of any withholding obligation a Participant satisfies by cash payment to the Corporation.

 

15. GENERAL PROVISIONS

 

(a) Employment At Will. Neither the Plan nor the grant of any Award nor any action by the Corporation, any Subsidiary or the Committee shall be held or construed to confer upon any person any right to be continued in the employ of or service to the Corporation or a Subsidiary. The Corporation and each Subsidiary expressly reserve the right to discharge, without liability but subject to his or her rights under this Plan, any Participant whenever in the sole discretion of the Corporation or a Subsidiary, as the case may be, it may determine to do so.

 

(b) Governing Law. This Plan and any agreements or other documents hereunder shall be interpreted and construed in accordance with the laws of the State of Delaware and applicable federal law. The Committee may provide that any dispute as to any Award shall be presented and determined in such forum as the Committee may specify, including through binding arbitration. Any reference in this Plan or in the agreement or other document evidencing any Award to a provision of law or to a rule or regulation shall be deemed to include any successor law, rule or regulation of similar effect or applicability.

 

 

(c) Unfunded Plan. Insofar as it provides for Awards, the Plan shall be unfunded. Although bookkeeping accounts may be established with respect to Participants who are granted Awards under this Plan, any such accounts will be used merely as a bookkeeping convenience. The Corporation shall not be required to segregate any assets which may at any time be represented by Awards, nor shall this Plan be construed as providing for such segregation, nor shall the Corporation or the Committee be deemed to be a trustee of stock or cash to be awarded under the Plan.

 

(d) Third Party Administrator. In connection with a Participant’s participation in the Plan, the Corporation may use the services of a third party administrator, including a brokerage firm administrator, and the Corporation may provide this administrator with personal information about a Participant, including a Participant’s name, social security number and address, as well as the details of each Award, and this administrator may provide information to the Corporation concerning the exercise of a Participant’s rights and account data as it relates to Awards under the Plan.

 

(e) Investment Representations. As a condition to the exercise of an Award, the Corporation may require the person exercising such Award to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Corporation, such a representation is required.

 

16. NON-EXCLUSIVITY OF PLAN

 

Neither the adoption of this Plan by the Board of Directors nor the submission of this Plan to the shareholders of the Corporation for approval shall be construed as creating any limitations on the power of the Board of Directors or the Committee to adopt such other incentive arrangements as either may deem desirable, including, without limitation, the granting of stock options, stock appreciation rights, restricted stock or restricted stock units otherwise than under this Plan, and such arrangements may be either generally applicable or applicable only in specific cases.

 

17. COMPLIANCE WITH OTHER LAWS AND REGULATIONS

 

This Plan, the grant and exercise of Awards thereunder, and the obligation of the Corporation to sell, issue or deliver Shares under such Awards, shall be subject to all applicable federal, state and local laws, rules and regulations and to such approvals by any governmental or regulatory agency as may be required. The Corporation shall not be required to register in a Participant’s name or deliver any Shares prior to the completion of any registration or qualification of such Shares under any federal, state or local law or any ruling or regulation of any government body which the Committee shall determine to be necessary or advisable. To the extent the Corporation is unable to or the Committee deems it infeasible to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Corporation’s counsel to be necessary or advisable for the lawful issuance and sale of any Shares hereunder, the Corporation shall be relieved of any liability with respect to the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained. No Stock Option shall be exercisable and no Shares shall be issued and/or transferable under any other Award unless a registration statement with respect to the Shares underlying such Stock Option is effective and current or the Corporation has determined that such registration is unnecessary.

 

18. LIABILITY OF CORPORATION

 

The Corporation shall not be liable to a Participant or other persons as to: (a) the non-issuance or sale of Shares as to which the Corporation has been unable to obtain from any regulatory body having jurisdiction the authority deemed by the Corporation’s counsel to be necessary to the lawful issuance and sale of any Shares hereunder; and (b) any tax consequence expected, but not realized, by any Participant or other person due to the receipt, exercise or settlement of any Stock Option or other Award granted hereunder.

 

 

 

Exhibit 10.10

 

MOBILEYE GLOBAL INC.
2022 EQUITY INCENTIVE PLAN

 

RESTRICTED STOCK UNIT AGREEMENT

 

1.                  Terms of Restricted Stock Unit. This Restricted Stock Unit Agreement, including any appendix attached hereto (this Restricted Stock Unit Agreement and such appendix, together, this “Agreement”), the Restricted Stock Unit Notice of Grant delivered online by logging into the E*TRADE Financial Corporation website (or the website of the applicable vendor as may be in effect from time to time) (the “Notice of Grant”) and the Mobileye Global Inc. 2022 Equity Incentive Plan (the “2022 Plan”), as such may be amended from time to time, constitute the entire understanding between you, Mobileye Global Inc. (the “Corporation”) and the Subsidiary that employs you or you provide services for (the “Employer”), regarding the Restricted Stock Units (“RSUs”) identified in your Notice of Grant. The RSUs granted to you are effective as of the grant date set forth in the Notice of Grant (the “Grant Date”). If there is any conflict between the terms in this Agreement and the 2022 Plan, the terms of the 2022 Plan will prevail. Capitalized terms not explicitly defined in this Agreement or in the Notice of Grant but defined in the 2022 Plan will have the same definitions as in the 2022 Plan.

 

2.                  Acceptance. If you are instructed by the administrators of the 2022 Plan to accept this Agreement and you fail to do so in the manner specified by the administrators within the earlier of (i) the first vest date or (ii) 180 days following the Grant Date, the RSUs identified in your Notice of Grant will be cancelled, except as otherwise determined by the Corporation in its sole discretion.

 

3.                  Vesting of RSUs. Provided that you remain continuously employed by, or continuously provide services to, the Corporation or a Subsidiary from the Grant Date specified in the Notice of Grant through each vesting date specified in the Notice of Grant, the RSUs allocated to each vesting date will vest and be converted into the right to receive the number of shares of the Corporation’s Common Stock, $0.01 par value (the “Common Stock”), except as otherwise provided in this Agreement. In the event a vesting date for any RSUs falls on a weekend or any other day on which the applicable stock exchange or national market system upon which the Common Stock is traded (“Exchange”) is not open, such RSUs will vest on the vesting date specified in the Notice of Grant, but the Market Value (as defined in the 2022 Plan) of such vested RSUs, including for purposes of tax withholding and reporting, will be determined as of the next following Exchange trading day; provided, however, that if you are designated by the Board of Directors to be an “officer” as defined in Rule 16a-1(f) of the Securities Exchange Act of 1934 (a “Section 16 Officer”), the foregoing shall not apply, and your affected RSUs’ will vest on the next following Exchange trading day and the Market Value of such vested RSUs will be determined as of the date the RSUs vested. The number of shares of Common Stock into which RSUs convert as specified in the Notice of Grant will be adjusted for stock splits and similar matters as specified in and pursuant to the 2022 Plan.

 

RSUs will vest to the extent provided in and in accordance with the terms of the Notice of Grant and this Agreement. If your status as an employee, Consultant or Outside Director terminates for any reason except death or Disablement (defined below), prior to the vesting dates set forth in your Notice of Grant, your unvested RSUs will be cancelled.

 

4.                  Conversion into Common Stock. Shares of Common Stock will be issued or become free of restrictions as soon as practicable following vesting of the RSUs, provided that you have satisfied your tax withholding obligations as specified under Section 9 of this Agreement and you have completed, signed and returned any documents and taken any additional action that the Corporation deems appropriate to enable it to accomplish the delivery of the shares of Common Stock. The shares of Common Stock will be issued in your name (or may be issued to your executor or personal representative, in the event of your death or Disablement), and may be effected by recording shares on the stock records of the Corporation or by crediting shares in an account established on your behalf with a brokerage firm or other custodian, in each case as determined by the Corporation. In no event will the Corporation be obligated to issue a fractional share.

 

 

Notwithstanding the foregoing, (i) the Corporation will not be obligated to deliver any shares of the Common Stock during any period when the Corporation determines that the conversion of a RSU or the delivery of shares hereunder would violate any laws of the United States or your country of residence and/or employment and/or may issue shares subject to any restrictive legends that, as determined by the Corporation’s counsel, is necessary to comply with securities or other regulatory requirements, and (ii) the date on which shares are issued may include a delay in order to provide the Corporation such time as it determines appropriate to address tax withholding and other administrative matters.

 

5.                  Suspension or Termination of RSU for Misconduct. If at any time the Committee of the Board of Directors established pursuant to the 2022 Plan (the “Committee”), including any Subcommittee or “Authorized Officer” (as defined in Section 8(b)(vi) of the 2022 Plan) notifies the Corporation that they reasonably believe that you have committed an act of misconduct as described in Section 8(b)(vi) of the 2022 Plan (embezzlement, fraud, dishonesty, nonpayment of any obligation owed to the Corporation or any Subsidiary, breach of fiduciary duty or deliberate disregard of Corporation rules resulting in loss, damage or injury to the Corporation or any Subsidiary, an unauthorized disclosure of any Corporation trade secret or confidential information, any conduct constituting unfair competition, inducing any customer to breach a contract with the Corporation or any Subsidiary or inducing any principal for whom the Corporation or any Subsidiary acts as agent to terminate such agency relationship), the vesting of your RSUs may be suspended pending a determination of whether an act of misconduct has been committed. If the Corporation determines that you have committed an act of misconduct, all RSUs not vested as of the date the Corporation was notified that you may have committed an act of misconduct will be cancelled and neither you nor any beneficiary will be entitled to any claim with respect to the RSUs whatsoever. Any determination by the Committee or an Authorized Officer with respect to the foregoing will be final, conclusive, and binding on all interested parties.

 

6.                  Termination of Employment/Service. Except as expressly provided otherwise in this Agreement, if your employment by, or service with, the Corporation or any Subsidiary terminates for any reason, whether voluntarily or involuntarily, other than on account of death or Disablement (as defined in Section 8), all RSUs not then vested will be cancelled on the date of such termination, regardless of whether such termination is as a result of a divestiture or otherwise. For purposes of this Section 6, your employment or service with any partnership, joint venture or corporation not meeting the requirements of a Subsidiary in which the Corporation or a Subsidiary is a party will be considered employment or service for purposes of this provision if either (a) the entity is designated by the Committee as a Subsidiary for purposes of this provision or (b) you are specifically designated as an employee, Consultant or Outside Director of a Subsidiary for purposes of this provision.

 

For purposes of this provision, your employment or service is not deemed terminated if, prior to 60 days after the date of termination from the Corporation or a Subsidiary, you are rehired by the Corporation or a Subsidiary on a basis that would make you eligible for future RSU grants by the Corporation. In addition, your transfer from the Corporation to any Subsidiary or from any one Subsidiary to another, or from a Subsidiary to the Corporation is not deemed a termination of employment or service.

 

7.                  Death. Except as expressly provided otherwise in this Agreement, if you die while employed by, or providing services to, the Corporation or any Subsidiary, your RSUs will become 100% vested.

 

8.                  Disablement. Except as expressly provided otherwise in this Agreement, if your employment or service terminates as a result of Disablement, your RSUs will become 100% vested upon the later of the date of your termination due to your Disablement or the date of determination of your Disablement. For purposes of this Agreement, “Disablement” will mean a physical condition arising from an illness or injury, which renders you incapable of performing work in your regular occupation, as determined by the Corporation. Your regular occupation is the occupation you routinely perform at the time your Disablement began.

 

 

9.                  Tax Withholding.

 

(a)               To the extent RSUs are subject to tax withholding obligations, the taxable amount generally will be based on the Market Value on the date of the taxable event. RSUs are taxable in accordance with the existing or future tax laws of the country or countries in which you are subject to tax such as the country or countries in which you reside and/or are employed on the Grant Date, vest dates, or during the vesting period. Your RSUs may be taxable in more than one country, based on your country of citizenship and/or the countries in which you resided or were employed on the Grant Date, vest date or during the vesting or other relevant period.

 

(b)               You will make arrangements satisfactory to the Corporation (or the Subsidiary that employs you, if your Subsidiary is involved in the administration of the 2022 Plan) for the payment and satisfaction of any income tax, social security tax, payroll tax, social taxes, applicable national or local taxes, or payment on account of other tax related to withholding obligations that arise by reason of granting or vesting of RSUs or sale of Common Stock shares from vested RSUs (whichever is applicable).

 

(c)               The Corporation will not be required to issue or lift any restrictions on shares of the Common Stock pursuant to your RSUs or to recognize any purported transfer of shares of the Common Stock until such obligations are satisfied.

 

(d)               Unless provided otherwise by the Committee, these obligations will be satisfied by the Corporation withholding a number of shares of Common Stock that would otherwise be issued under the RSUs that the Corporation determines has a Market Value sufficient to meet the maximum tax withholding obligations in all relevant jurisdictions, reduced by the amount of any withholding obligation you have already satisfied by cash payment to the Corporation. In the event that the Committee provides that these obligations will not be satisfied under the method described in the previous sentence, you authorize E*TRADE Financial Corporate Services, Inc. and E*TRADE Securities LLC (“E*Trade”), or any successor plan administrator, to sell a number of shares of Common Stock that are issued under the RSUs, which the Corporation determines is sufficient to generate an amount that meets the tax withholding obligations plus additional shares to account for rounding and market fluctuations, and to pay such tax withholding to the Corporation for remittance to the appropriate tax authorities. The shares may be sold as part of a block trade with other Participants in which all Participants receive an average price.

 

(e)               You are ultimately liable and responsible for all taxes owed by you in connection with your RSUs, regardless of any action the Corporation takes or any transaction pursuant to this Section 9 with respect to any tax withholding obligations that arise in connection with the RSUs. The Corporation makes no representation or undertaking regarding the treatment of any tax withholding in connection with the grant, issuance, vesting or settlement of the RSUs or the subsequent sale of any of the shares of Common Stock underlying the RSUs that vest. The Corporation does not commit and is under no obligation to structure the RSU program to reduce or eliminate your tax liability.

 

10.              Rights as Stockholder. Your RSUs may not be otherwise sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner, other than by will or the laws of descent and distribution or as permitted by Rule 701 of the Securities Act of 1933. Any attempt to transfer, assign, hypothecate or otherwise dispose of your RSUs other than as permitted above, will be void and unenforceable against the Corporation.

 

 

You will have the rights of a stockholder only after shares of the Common Stock have been issued to you following vesting of your RSUs and satisfaction of all other conditions to the issuance of those shares as set forth in this Agreement. RSUs will not entitle you to any rights of a stockholder of Common Stock and there are no voting or dividend rights with respect to your RSUs. RSUs will remain terminable pursuant to this Agreement at all times until they vest and convert into shares. As a condition to having the right to receive shares of Common Stock pursuant to your RSUs, you acknowledge that unvested RSUs will have no value for purposes of any aspect of your employment or service relationship with the Corporation or a Subsidiary.

 

11.              Disputes. Any question concerning the interpretation of this Agreement, your Notice of Grant, the RSUs or the 2022 Plan, any adjustments required to be made thereunder, and any controversy that may arise under this Agreement, your Notice of Grant, the RSUs or the 2022 Plan will be determined by the Committee (including any person(s) to whom the Committee has delegated its authority) in its sole and absolute discretion. Such decision by the Committee will be final and binding unless determined pursuant to Section 14(f) to have been arbitrary and capricious.

 

12.              Amendments. The 2022 Plan and RSUs may be amended or altered by the Committee or the Board of Directors to the extent provided in the 2022 Plan.

 

13.              Data Privacy. You explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document and any other RSU grant materials (“Data”) by and among, as applicable, the Corporation, the Employer and any other Subsidiary for the exclusive purpose of implementing, administering and managing your participation in the 2022 Plan.

 

You hereby understand that the Corporation holds certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Corporation, details of all RSUs or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor for the purpose of implementing, administering and managing the 2022 Plan. You hereby understand that Data will be transferred to E*Trade and any other third parties assisting in the implementation, administration and management of the 2022 Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country (e.g., the United States) may have different data privacy laws and protections than your country. You hereby understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the Corporation, E*Trade and any other possible recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the exclusive purpose of implementing, administering and managing your participation in the 2022 Plan, including any requisite transfer of such Data as may be required to another broker or other third party with whom you may elect to deposit any shares of Common Stock acquired under your RSUs. You hereby understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the 2022 Plan. You hereby understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative.

 

Further, you understand that you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your employment status or service with the Employer will not be affected; the only consequence of refusing or withdrawing your consent is that the Corporation would not be able to grant you RSUs or other equity awards or administer or maintain such awards. Therefore, you hereby understand that refusing or withdrawing your consent may affect your ability to participate in the 2022 Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you hereby understand that you may contact the human resources representative responsible for your country at the local or regional level.

 

 

Finally, upon request of the Corporation or the Employer, you agree to provide an executed data privacy consent form (or any other agreements or consents) that the Corporation and/or the Employer may deem necessary to obtain from you for the purpose of administering your participation in the 2022 Plan in compliance with the data privacy laws in your country, either now or in the future. You understand and agree that you will not be able to participate in the 2022 Plan if you fail to provide any such consent or agreement requested by the Corporation and/or the Employer. 

 

14.              The 2022 Plan and Other Terms.

 

(a)               Any prior agreements, commitments or negotiations concerning the RSUs are superseded by this Agreement and your Notice of Grant. You hereby acknowledge that a copy of the 2022 Plan has been made available to you.

 

(b)               The grant of RSUs to an employee, Consultant or Outside Director in any one year, or at any time, does not obligate the Corporation or any Subsidiary to make a grant in any future year or in any given amount and should not create an expectation that the Corporation or any Subsidiary might make a grant in any future year or in any given amount.

 

(c)               In connection with an initial offering of the Corporation’s Shares pursuant to a registration statement filed by the Corporation with the Securities and Exchange Commission and upon request of the Corporation or the underwriters managing such offering of the Corporation’s securities, Participant hereby agrees not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any securities of the Corporation however or whenever acquired (other than those included in the registration) without the prior written consent of the Corporation or such underwriters, as the case may be, for such period of time (not to exceed 180 days) from the effective date of such registration as may be requested by the Corporation or such managing underwriters and to execute an agreement reflecting the foregoing as may be requested by the underwriters at the time of the Corporation’s initial public offering. Notwithstanding the foregoing, if during the last 17 days of the restricted period, the Corporation issues an earnings release or material news or a material event relating to the Corporation occurs, or prior to the expiration of the restricted period the Corporation announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period, then, upon the request of the managing underwriter, to the extent required by any Financial Industry Regulatory Authority rules, the restrictions imposed by this subsection shall continue to apply until the end of the third trading day following the expiration of the 15-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. In no event will the restricted period extend beyond 216 days after the effective date of the registration statement.

 

(d)               Notwithstanding any other provision of this Agreement, if any changes in law or the financial or tax accounting rules applicable to the RSUs covered by this Agreement will occur, the Corporation may, in its sole discretion, (i) modify this Agreement to impose such restrictions or procedures with respect to the RSUs (whether vested or unvested), the shares issued or issuable pursuant to the RSUs and/or any proceeds or payments from or relating to such shares as it determines to be necessary or appropriate to comply with applicable law or to address, comply with or offset the economic effect to the Corporation of any accounting or administrative matters relating thereto, or (ii) cancel and cause a forfeiture with respect to any unvested RSUs at the time of such determination.

 

 

(e)               Nothing contained in this Agreement creates or implies an employment contract or term of employment upon which you may rely.

 

(f)                Because this Agreement relates to terms and conditions under which you may be issued shares of Common Stock, an essential term of this Agreement is that it will be governed by the laws of the State of Delaware, without regard to choice of law principles of Delaware or other jurisdictions. Any action, suit, or proceeding relating to this Agreement or the RSUs granted hereunder will be brought in the state or federal courts of competent jurisdiction in the State of California.

 

(g)               Notwithstanding anything to the contrary in this Agreement or the applicable Notice of Grant, your RSUs are subject to reduction by the Corporation if you change your employment classification from a full-time employee to a part-time employee, or from a full-time employee to a Consultant or Outside Director.

 

(h)               RSUs are not part of your employment or service contract (if any) with the Corporation or any Subsidiary, your salary or fees, your normal or expected compensation, or other remuneration for any purposes, including for purposes of computing severance pay or other termination compensation or indemnity.

 

(i)                 In consideration of the grant of RSUs, no claim or entitlement to compensation or damages will arise from termination of your RSUs or diminution in value of the RSUs or Common Stock acquired through vested RSUs resulting from termination of your active employment by the Corporation or any Subsidiary (for any reason whatsoever and whether or not in breach of local labor laws) and you hereby release the Corporation and its Subsidiaries from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then you will be deemed irrevocably to have waived your entitlement to pursue such claim.

 

(j)                 Notwithstanding any terms or conditions of the 2022 Plan to the contrary, in the event of involuntary termination of your employment (whether or not in breach of local labor laws), your right to receive the RSUs and vest in RSUs under the 2022 Plan, if any, will terminate effective as of the date that you are no longer actively employed and will not be extended by any notice period mandated under local law (e.g., active employment would not include a period of “garden leave” or similar period pursuant to local law); furthermore, in the event of involuntary termination of employment (whether or not in breach of local labor laws), your right to sell shares of Common Stock that converted from vested RSUs after termination of employment, if any, will be measured by the date of termination of your active employment and will not be extended by any notice period mandated under local law.

 

(k)               Notwithstanding any provision of this Agreement, the Notice of Grant or the 2022 Plan to the contrary, if, at the time of your termination of employment with the Corporation or any of its Subsidiaries, you are a “specified employee” as defined in Section 409A of the Internal Revenue Code (“Code”), and one or more of the payments or benefits received or to be received by you pursuant to the RSUs would constitute deferred compensation subject to Section 409A, no such payment or benefit will be provided under the RSUs until the earliest of (A) the date which is six (6) months after your “separation from service” for any reason, other than death or “disability” (as such terms are used in Section 409A(a)(2) of the Code), (B) the date of your death or “disability” (as such term is used in Section 409A(a)(2)(C) of the Code) or (C) the effective date of a “change in the ownership or effective control” of the Corporation (as such term is used in Section 409A(a)(2)(A)(v) of the Code). Each payment under this Agreement shall be treated as a separate payment for purposes of Section 409A of the Code. The RSUs are intended to comply with or be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent; provided, that the Corporation does not guarantee you any particular tax treatment of the RSUs. In addition, if any provision of the RSUs would cause you to incur any penalty tax or interest under Section 409A of the Code or any regulations or Treasury guidance promulgated thereunder, the Corporation may reform such provision to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code. In no event whatsoever shall the Corporation be liable for any additional tax, interest or penalties that may be imposed on you by Section 409A of the Code or any damages for failing to comply with Section 409A of the Code.

 

 

(l)                 Copies of the Corporation’s Annual Report to Stockholders for its latest fiscal year and the Corporation’s latest quarterly report are available, without charge, on the Corporation’s website and at the Corporation’s business office.

 

(m)             The Corporation is not providing any tax, legal or financial advice, nor is the Corporation making any recommendations regarding your participation in the 2022 Plan, or his or her acquisition or sale of the underlying shares of Common Stock. You understand and agree that you are advised to consult with your own personal tax, legal and financial advisors regarding your participation in the 2022 Plan before taking any action related to the 2022 Plan.

 

(n)               In the event that any provision in this Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Agreement.

 

(o)               You acknowledge that a waiver by the Corporation of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach of this Agreement.

 

15.              Appendix. The RSUs and the shares of Common Stock acquired under the 2022 Plan shall be subject to any special terms and conditions for your country set forth in the Appendix to this Agreement. Moreover, if you relocate to one of the countries included in the Appendix, the special terms and conditions for such country will apply to you, to the extent that the Corporation determines that application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Appendix constitutes part of this Agreement.

 

16.              Imposition of Other Requirements. The Corporation reserves the right to impose other requirements on the RSUs and on any shares of Common Stock acquired upon vesting of the RSUs, to the extent that the Committee determines it is necessary for legal or administrative reasons, and to require you to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.

 

* * * * *

 

By acknowledging this grant of an award or your acceptance of this Agreement in the manner specified by the administrator, you, Mobileye Global Inc. and the Employer agree that the RSUs identified in your Notice of Grant are governed by the terms of this Agreement, the Notice of Grant and the 2022 Plan. You further acknowledge that you have read and understood the terms of the RSUs set forth in this Agreement, the Notice of Grant and the 2022 Plan.

 

 

APPENDIX TO THE

 

MOBILEYE GLOBAL INC.
2022 EQUITY INCENTIVE PLAN

 

RESTRICTED STOCK UNIT AGREEMENT

 

Capitalized terms used and not defined in this Appendix will have the meaning given to them in the Restricted Stock Unit Agreement (the “Agreement”) and/or the Mobileye Global Inc. 2022 Equity Incentive Plan (the “2022 Plan”), as applicable.

 

Terms and Conditions

 

This Appendix, which is part of the Agreement, contains additional or different terms and conditions that govern the RSUs if you are residing and/or employed outside of the United States. The terms and conditions in Part A apply to all Participants outside of the United States. The country-specific terms and conditions in Part B apply to Participants located in any of the countries listed in Part B.

 

If you are a citizen or resident of a country other than the one in which you are currently residing and/or working, transfer employment and/or residency to another country after the RSUs are granted to you or are considered a resident of another country for local law purposes, the Corporation will determine to what extent the terms and conditions herein will apply to you.

 

Notifications

 

This Appendix also includes information regarding securities laws and certain other issues of which you should be aware with respect to your participation in the 2022 Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of May 2022. Such laws are often complex and change frequently. As a result, the Corporation strongly recommends that you not rely on the information noted herein as the only source of information relating to the consequences of your participation in the 2022 Plan because the information may be out of date at vesting and settlement of the RSUs, upon the subsequent sale of the shares of Common Stock or upon the receipt of any dividends.

 

In addition, the information is general in nature and may not apply to your particular situation, and the Corporation is not in a position to assure you of any particular result. Accordingly, you should seek appropriate professional advice as to how the relevant laws in your country may apply to your situation.

 

A.

NON-U.S. PROVISIONS

 

1.                   Nature of Grant. The following provision supplements Section 14 of the Restricted Stock Unit Agreement. In accepting the RSUs, you acknowledge, understand and agree that:

 

(a)                the 2022 Plan is established voluntarily by the Corporation, is discretionary in nature and may be modified, amended, suspended or terminated by the Corporation at any time, to the extent permitted by the 2022 Plan;

 

(b)                the grant of the RSUs is voluntary and occasional and does not create any contractual or other right to receive future grants of restricted stock units, or benefits in lieu of restricted stock units, even if restricted stock units have been granted in the past;

 

 

(c)                all decisions with respect to future restricted stock units or other grants, if any, will be at the sole discretion of the Corporation;

 

(d)                the grant of RSUs and your participation in the 2022 Plan shall not create a right to employment or be interpreted as forming an employment or service contract with the Corporation, the Employer, or any parent or Subsidiary and shall not interfere with the ability of the Corporation, the Employer, or any parent or Subsidiary to terminate your employment;

 

(e)                you are voluntarily participating in the 2022 Plan;

 

(f)                 the RSUs and the shares of Common Stock subject to the RSUs, and the income from and value of same, are not intended to replace any pension rights or compensation;

 

(g)                the RSUs and the shares of Common Stock subject to the RSUs, and the income from and value of same, are not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculation of any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar mandatory payments;

 

(h)                the future value of the underlying shares of Common Stock is unknown, indeterminable and cannot be predicted with certainty;

 

(i)                 notwithstanding any terms or conditions of the 2022 Plan to the contrary, for purposes of your RSUs, your employment or consulting services will be considered terminated as of the date you are no longer actively providing services to the Corporation or any Subsidiary (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are providing service or the terms of your service agreement, if any) and will not be extended by any notice period (e.g., your period of service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are providing service or the terms of your service agreement, if any). The Committee shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of your RSU grant (including whether you may still be considered to be providing services while on a leave of absence); and

 

(j)                 neither the Corporation nor the Employer nor any parent or Subsidiary will be liable for any foreign exchange rate fluctuation between your local currency and the United States Dollar that may affect the value of the RSUs or of any amounts due to you pursuant to the RSUs or the subsequent sale of any shares of Common Stock subject to the RSUs acquired under the 2022 Plan.

 

2.                   Language. You acknowledge that you are proficient in the English language, or have consulted with an advisor who is sufficiently proficient in English, so as to allow you to understand the terms and conditions of this Agreement. If you have received this Agreement or any other document related to the RSUs translated into a language other than English and if the meaning of the translated version differs from the English version, the English version shall control.

 

3.                   Electronic Delivery and Participation. The Corporation may, in its sole discretion, decide to deliver any documents related to RSUs granted under the 2022 Plan or future RSUs that may be granted under the 2022 Plan by electronic means or request your consent to participate in the 2022 Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the 2022 Plan through any on-line or electronic system established and maintained by the Corporation or a third party designated by the Corporation.

 

 

4.                   Insider Trading Restrictions/Market Abuse Laws. You acknowledge that you may be subject to insider trading restrictions and/or market abuse laws based on the exchange on which the shares of Common Stock are listed and in applicable jurisdictions, including the United States, your country and the broker’s country, which may affect your ability to accept, acquire, sell or otherwise dispose of shares of Common Stock, rights to shares of Common Stock (e.g., RSUs) or rights links to the value of shares of Common Stock under the 2022 Plan during such times as you considered to have “inside information” regarding the Corporation (as defined by the laws in the applicable jurisdictions). Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed inside information. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Corporation insider trading policy. You acknowledge that it is your responsibility to comply with any applicable restrictions and that you should speak to your personal advisor on this matter.

 

5.                   Exchange Control, Foreign Asset/Account and/or Tax Reporting Requirements. You acknowledge that there may be certain exchange control, foreign asset/account and/or tax reporting requirements which may affect your ability to acquire or hold shares of Common Stock or cash received from participating in the 2022 Plan (including the proceeds from the sale of shares of Common Stock and the receipt of any dividends) in a brokerage or bank account outside your country. You may be required to report such accounts, assets or related transactions to the tax or other authorities in your country. You also may be required to repatriate sale proceeds or other funds received as a result of participating in the 2022 Plan to your country within a certain time after receipt. You acknowledge that it is your responsibility to comply with such regulations and that you should speak to your personal advisor on this matter.

 

B.       COUNTRY-SPECIFIC PROVISIONS

 

GERMANY

 

Control of 2022 Plan. For the avoidance of doubt, the 2022 Plan shall only control unless otherwise stipulated in this Section.

 

Definition of Disability. The definition of “disability” or “Disablement” for purposes of the RSUs and the 2022 Plan shall, for the avoidance of doubt, be interpreted as understood and interpreted by German law.

 

Eligible Participant. The Corporation’s discretion to award rights under the 2022 Plan to eligible Participants shall be exercised in a way complying with German law, in particular with the labor law principle of equal treatment (arbeitsrechtlicher Gleichbehandlungsgrundsatz) and with the prohibition of discrimination (Diskriminierungsverbot).

 

Leaves of Absences. The Corporation’s discretion to grant awards under the 2022 Plan shall be exercised in a manner complying with German law, in particular with the labor law principle of equal treatment (arbeitsrechtlicher Gleichbehandlungsgrundsatz) and with the prohibition of discrimination (Diskriminierungsverbot). For the avoidance of doubt, any sick leave or other leave of absence as used in the 2022 Plan shall be interpreted and applied as compliant with German law.

 

Clawback. For the avoidance of doubt, any clawback shall only be made as permitted under German law requisites.

 

Remedies. For the avoidance of doubt, remedies shall only be claimed as permitted under German law requisites.

 

No Legal Claim. Participant acknowledges and agrees that the Award is a voluntary one-time benefit, and that Participant does not have a legal claim for further grants.

 

 

Board and Committee Discretion and Decisions. The discretion of the Committee under the 2022 Plan, the Agreement and this Section, including their interpretation, shall always be exercised reasonably (nach billigem Ermessen) as defined under German law.

 

Consent to Personal Data Processing and Transfer. The following provisions shall apply in lieu of Section 14 of the Agreement: It shall be a term and condition of each award under the 2022 Plan that Participant acknowledges and consents to the collection, use, processing and transfer of personal data as described below. The Corporation and certain Subsidiaries of the Corporation (all together, the “Company Entities”) hold certain personal information, including Participant’s name, home address and telephone number, date of birth, social security number or other employee tax identification number, employment history and status, salary, nationality, job title, and any equity compensation grants awarded, cancelled, purchased, vested, unvested or outstanding in Participant’s favor, for the only purpose of managing and administering the 2022 Plan (“Data”). The Company Entities will transfer Data to any third parties assisting the Corporation in the implementation, administration and management of the 2022 Plan. The Company Entities may also make the Data available to public authorities where required under locally applicable law. These recipients may be located in the United States, the European Economic Area, or elsewhere, which Participant separately and expressly consents to, accepting that outside the European Economic Area, data protection laws may not be as protective as within. The third parties currently assisting the Corporation in the implementation, administration and management of the 2022 Plan are the following: However, from time to time, the Company Entities may retain additional or different third parties for any of the purposes mentioned on which the Corporation will inform Participant and seek the additional consent of Participant. Participant hereby authorizes the Company Entities to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing participation in the 2022 Plan, including any requisite transfer of such Data as may be required for the administration of the 2022 Plan on behalf of Participant to a third party with whom Participant may have elected to have payment made pursuant to the 2022 Plan. Participant may, at any time, review Data, require any necessary amendments to it or withdraw the consent herein in writing by contacting the Corporation through its local Human Resources Director; however, withdrawing the consent may affect Participant’s ability to participate in the 2022 Plan and receive the benefits under the Agreement. Data will only be held as long as necessary to implement, administer and manage Participant’s participation in the 2022 Plan and any subsequent claims or rights.

 

Taxes and Other Withholding. For the avoidance of doubt, any withholding and payment obligations under the 2022 Plan and the Agreement shall be made by the relevant member of the Company Entities employing Participant when due and any taxes should always include German social security contributions (including Participant’s portion) and mandatory withholding and pay obligations in accordance with German law.

 

Tax Consequences. Any tax consequences arising from the vesting or distribution or otherwise pursuant to an Award shall be borne solely by Participant (including, without limitation, Participant’s individual income tax and Participant’s social security contributions, if applicable). The Company Entities shall be entitled to (a) withhold Participant’s social security contributions and individual income tax (if required) according to the requirements under applicable laws, rules and regulations, including withholding taxes at source and (b) report the income and requested details in respect of any award to the competent tax and social security authorities. Furthermore, Participant shall agree to indemnify the Company Entities and hold them harmless against and from any and all liability for any such tax or other payment or interest or penalty thereon, including without limitation, liabilities relating to the necessity to withhold, or to have withheld, any such tax from any payment made to Participant.

 

ISRAEL

 

Terms and Conditions

 

Capital Gains Track Requirements. By accepting the award of RSUs, you acknowledge and agree that the award is subject to the 2022 Plan, the Israel Sub-Plan and Sections 102(b)(2) and (3) of the Income Tax Ordinance (New Version) – 1961, the Rules, and the Trust Agreement (as defined in the Israel Sub-Plan), a copy of which has been made available to you. You confirm that (a) you are familiar with the terms and provisions of Section 102 of the ITO, particularly the Capital Gains Track described in subsection (b)(2) and (3) thereof, and agrees not to require the Trustee to release the award or to sell or transfer the award to you or any third party unless permitted to do so by applicable law (b) the terms and restrictions set forth in the Israel Sub-Plan will apply to the award in all respects, including without limitation with respect to mandatory tax withholding requirements, and the rights and authorities of the Company, its Affiliates and the Trustee with respect thereto, and (c) the Company, its affiliates, assignees and successors shall be under no duty to ensure, and no representation or commitment is made, that an award qualifies or shall qualify under any particular tax treatment.

 

 

You further acknowledge and agree that the RSUs and any Shares issued upon vesting thereof shall be deposited with the Trustee, or shall be subject to a supervisory trustee arrangement approved by the ITA for the Trustee, in order to comply with the requirements of the capital gains track under Sections 102(b)(2) and (3) of the ITO.

 

You hereby undertake to release the Trustee from any liability in respect of any action or decision duly taken and bona fide executed in relation to the 2022 Plan, the RSUs or Shares issued thereunder.

 

Data Privacy. The following provision supplements Section 14 of the 2022 Plan:

 

You hereby authorize the Corporation, the Trustee and their representatives to collect, use and transfer all relevant information regarding your participation in the 2022 Plan to all Company personnel and agents and or third parties involved in the administration of the 2022 Plan and/or in the event of a corporate financing, merger, acquisitions and/or business transfers, including transfers outside of Israel and further transfers thereafter.

 

JAPAN

 

Terms and Conditions

 

No Registration. An award of RSUs representing a right to receive a number of Shares under the 2022 Plan will be offered in Japan by a private placement to small number of subscribers (shoninzu muke kanyu), as provided under Article 23-13, Paragraph 4 of the Financial Instruments and Exchange Law of Japan (“FIEL”), and accordingly, the filing of a securities registration statement pursuant to Article 4, Paragraph 1 of the FIEL has not been made, and such Award may not be assigned or transferred by Participant.

 

 

 

Exhibit 10.11

 

MOBILEYE GLOBAL INC.
2022 EQUITY INCENTIVE PLAN

 

OPTION AGREEMENT

 

1.              Option Grant; Terms Of Option. This Option Agreement (this “Agreement”), the Notice of Grant delivered online by logging into the E*TRADE Financial Corporation website (or the website of the applicable vendor as may be in effect from time to time) (the “Notice of Grant”) and the Mobileye Global Inc. 2022 Equity Incentive Plan (the “2022 Plan”), as such may be amended from time to time, constitute the entire understanding between you, Mobileye Global Inc. (the “Corporation”), and the Subsidiary that employs you or you provide services for (the “Employer”), regarding the stock option grant (“Option”) identified in your Notice of Grant. The Option granted to you is effective as of the grant date set forth in the Notice of Grant (the “Grant Date”). If there is any conflict between the terms in this Agreement and the 2022 Plan, the terms of the 2022 Plan will prevail. Capitalized terms not explicitly defined in this Agreement or in the Notice of Grant but defined in the 2022 Plan will have the same definitions as in the 2022 Plan.

 

If you are instructed by the administrators of the 2022 Plan to accept this Agreement and you fail to do so in the manner specified by the administrators within 180 days of the Grant Date, the Option identified in your Notice of Grant will be cancelled, except as otherwise determined by the Corporation in its sole discretion.

 

2.             Nonqualified Stock Option. The Option is not intended to be an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) and will be interpreted accordingly.

 

3.             Option Price. The exercise price of the option (the “Exercise Price”), as set forth in the Notice of Grant, is 100% of the closing price of a share of the common stock of the Corporation, $0.01 par value (the “Common Stock”), as reported on the applicable stock exchange or national market system upon which the Common Stock is traded (“Exchange”) on the Grant Date.

 

4.             Vesting Terms. Provided that you remain continuously employed by, or continuously provide services to, the Corporation or a Subsidiary from the Grant Date specified in the Notice of Grant through each vesting date specified in the Notice of Grant, the Shares underlying the Option allocated to each vesting date will vest and become exercisable, except as otherwise provided in this Agreement.

 

5.             Term of Option and Exercise of Option. To the extent the option becomes vested and exercisable pursuant to the terms set forth in this Agreement and has not been previously exercised, and subject to termination or acceleration as provided in this Agreement and the requirements set forth in this Agreement, the Notice of Grant and the 2022 Plan, you may exercise the option to purchase up to the number of shares of the Common Stock set forth in the Notice of Grant. Notwithstanding anything to the contrary in Sections 6 through 9 hereof, no part of the Option may be exercised after ten (10) years from the date of grant.

 

The process for exercising the Option (or any part thereof) is governed by this Agreement, the Notice of Grant, the 2022 Plan and your agreements with the Corporation’s stock plan administrator. Exercises of stock options will be processed and shares of the Common Stock will be issued as soon as practicable. The option price may be paid (a) in cash, (b) by arrangement with the Corporation’s stock plan administrator which is acceptable to the Corporation where payment of the option price is made pursuant to an irrevocable direction to the broker to deliver all or part of the proceeds from the sale of the shares of the Common Stock issuable under the option to the Corporation, (c) by delivery of any other lawful consideration approved in advance by the Committee of the Board of Directors established pursuant to the 2022 Plan (the “Committee”) or its delegate, or (d) in any combination of the foregoing. Fractional shares may not be exercised. You will have the rights of a stockholder only after the shares of the Common Stock have been issued. For administrative or other reasons, the Corporation may from time to time suspend the ability of service providers to exercise options for limited periods of time.

 

 

Notwithstanding the above, the Corporation shall not be obligated to deliver any shares of the Common Stock during any period when the Corporation determines that the exercisability of the Option or the delivery of shares hereunder would violate any federal, state or other applicable laws.

 

Notwithstanding anything to the contrary in this Agreement or the applicable Notice of Grant, the Corporation may reduce the unvested portion of your Option if you change classification from a full-time to a part-time employee, or from a full-time employee to a Consultant or Outside Director.

 

IF AN EXPIRATION DATE DESCRIBED HEREIN FALLS ON A WEEKDAY, YOU MUST EXERCISE YOUR OPTIONS BEFORE 3:45 P.M. NEW YORK TIME ON THE EXPIRATION DATE.

 

IF AN EXPIRATION DATE DESCRIBED HEREIN FALLS ON A WEEKEND OR ANY OTHER DAY ON WHICH THE EXCHANGE IS NOT OPEN, YOU MUST EXERCISE YOUR OPTIONS BEFORE 3:45 P.M. NEW YORK TIME ON THE LAST EXCHANGE BUSINESS DAY PRIOR TO THE EXPIRATION DATE.

 

6.             Suspension or Termination of Option for Misconduct. If at any time the Committee, including any Subcommittee or “Authorized Officer” (as defined in Section 8(a)(v) of the 2022 Plan) notifies the Corporation that they reasonably believe that you have committed an act of misconduct as described in Section 8(a)(v) of the 2022 Plan (embezzlement, fraud, dishonesty, nonpayment of any obligation owed to the Corporation or any Subsidiary, breach of fiduciary duty or deliberate disregard of Corporation rules resulting in loss, damage or injury to the Corporation or any Subsidiary, an unauthorized disclosure of any Corporation trade secret or confidential information, any conduct constituting unfair competition, inducing any customer to breach a contract with the Corporation or any Subsidiary or inducing any principal for whom the Corporation or any Subsidiary acts as agent to terminate such agency relationship), the vesting of your option and your right to exercise your option, to the extent it is vested, may be suspended pending a determination of whether an act of misconduct has been committed. If the Corporation determines that you have committed an act of misconduct, your option shall be cancelled and neither you nor any beneficiary shall be entitled to any claim with respect to your option whatsoever. Any determination by the Committee or an Authorized Officer with respect to the foregoing shall be final, conclusive, and binding on all interested parties.

 

7.             Termination of Employment/Service. Except as expressly provided otherwise in this Agreement, if your employment by, or service with, the Corporation or any Subsidiary terminates for any reason, whether voluntarily or involuntarily, other than on account of death, Disablement (as defined in Section 9), or discharge for misconduct, you may exercise any portion of the option that had vested on or prior to the date of termination at any time prior to ninety (90) days after the date of such termination, but in no event later than the expiration date. The Option shall terminate on the 90th day to the extent that it is unexercised. The portion of the Option that is unvested as of the date of termination shall be cancelled on the date of such termination, regardless of whether such termination is voluntary or involuntary.

 

For purposes of this Section 7, your employment or service is not deemed terminated if, prior to sixty (60) days after the date of termination from the Corporation or a Subsidiary, you are rehired by the Corporation or a Subsidiary on a basis that would make you eligible for future Corporation stock option grants, nor would your transfer from Corporation to any Subsidiary or from any one Subsidiary to another, or from a Subsidiary to the Corporation be deemed a termination of employment or service. Further, your employment or service with any partnership, joint venture or corporation not meeting the requirements of a Subsidiary in which the Corporation or a Subsidiary is a party shall be considered employment or service for purposes of this provision if either (a) the entity is designated by the Committee as a Subsidiary for purposes of this provision or (b) you are designated as an employee or other service provider of a Subsidiary for purposes of this provision.

 

 

8.             Death. Except as expressly provided otherwise in this Agreement, if you die while employed by or providing services to the Corporation or any Subsidiary, the executor of your will or administrator of your estate may exercise the Option, to the extent not previously exercised, and whether or not vested on the date of death, at any time prior to 365 days from the date of death or until the expiration date of the Option, if earlier.

 

Except as expressly provided otherwise in this Agreement, if you die prior to ninety (90) days after terminating your employment or service with the Corporation and its Subsidiaries, the executor of your will or administrator of your estate may exercise the option, to the extent not previously exercised and to the extent the option had vested on or prior to the date of your termination, at any time prior to 365 days from the date of such termination or until the expiration date of the Option, if earlier.

 

The Option shall terminate on the applicable expiration date described in this Section 8, to the extent that it is unexercised.

 

9.             Disablement. Except as expressly provided otherwise in this Agreement, following your termination due to Disablement, you may exercise the Option, to the extent not previously exercised, and whether or not the Option had vested on or prior to the date of termination, at any time prior to 365 days from the later of the date of your termination due to your Disablement or the date of determination of your Disablement as described in this Section 9, but in no event later than the expiration date of the Option; provided, however, that while the claim of Disablement is pending, options that were unvested at termination may not be exercised and options that were vested at termination may be exercised only during the period set forth in Section 7 hereof. The Option shall terminate on the 365th day from the date of determination of Disablement, to the extent that it is unexercised. For purposes of this Agreement, “Disablement” will mean a physical condition arising from an illness or injury, which renders you incapable of performing work in your regular occupation, as determined by the Corporation. Your regular occupation is the occupation you routinely perform at the time your Disablement began.

 

10.           Income Taxes Withholding. Nonqualified stock options are taxable upon exercise. To the extent required by applicable federal, state or other law, you shall make arrangements satisfactory to the Corporation (or the Subsidiary that employs you, as applicable) for the satisfaction of any withholding tax obligations that arise by reason of an option exercise and, if applicable, any sale of shares of the Common Stock. The Corporation shall not be required to issue shares of the Common Stock or to recognize any purported transfer of shares of the Common Stock until such obligations are satisfied. Unless provided otherwise by the Committee, these obligations will be satisfied by having the Corporation withhold a portion of the shares of the Common Stock that otherwise would be issued to you upon exercise of the option.

 

11.           Transferability of Option. The Option may not be transferred by you in any manner other than by will or by the laws of descent or distribution, or as set forth in Section 10(a) of the 2022 Plan. The Option may be exercised only by you or, upon your death, only by the executor of your will or administrator of your estate in accordance with Section 8 above.  The terms of this Agreement shall be binding upon your executors, administrators, heirs, successors and assigns.

 

12.           Disputes. Any question concerning the interpretation of this Agreement, your Notice of Grant, the Option or the 2022 Plan, any adjustments required to be made thereunder, and any controversy that may arise under this Agreement, your Notice of Grant, the Option or the 2022 Plan will be determined by the Committee (including any person(s) to whom the Committee has delegated its authority) in its sole and absolute discretion. Such decision by the Committee will be final and binding unless determined pursuant to Section 15 to have been arbitrary and capricious.

 

 

13.           Amendments. The 2022 Plan and the Option may be amended or altered by the Committee or the Board of Directors to the extent provided in the 2022 Plan.

 

14.           Data Privacy. You explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document and any other Option grant materials (“Data”) by and among, as applicable, the Corporation, the Employer and any other Subsidiary for the exclusive purpose of implementing, administering and managing your participation in the 2022 Plan.

 

You hereby understand that the Corporation holds certain personal information about you, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Corporation, details of all Options or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in your favor for the purpose of implementing, administering and managing the 2022 Plan. You hereby understand that Data will be transferred to E*TRADE Financial Corporate Services, Inc. and E*TRADE Securities LLC (“E*Trade”) and any other third parties assisting in the implementation, administration and management of the 2022 Plan, that these recipients may be located in your country or elsewhere, and that the recipient’s country (e.g., the United States) may have different data privacy laws and protections than your country. You hereby understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the Corporation, E*Trade and any other possible recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the exclusive purpose of implementing, administering and managing your participation in the 2022 Plan, including any requisite transfer of such Data as may be required to another broker or other third party with whom you may elect to deposit any shares of Common Stock acquired under your Option. You hereby understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the 2022 Plan. You hereby understand that you may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing your local human resources representative.

 

Further, you understand that you are providing the consents herein on a purely voluntary basis. If you do not consent, or if you later seek to revoke your consent, your employment status or service with the Employer will not be affected; the only consequence of refusing or withdrawing your consent is that the Corporation would not be able to grant you Options or other equity awards or administer or maintain such awards. Therefore, you hereby understand that refusing or withdrawing your consent may affect your ability to participate in the 2022 Plan. For more information on the consequences of your refusal to consent or withdrawal of consent, you hereby understand that you may contact the human resources representative responsible for your country at the local or regional level.

 

Finally, upon request of the Corporation or the Employer, you agree to provide an executed data privacy consent form (or any other agreements or consents) that the Corporation and/or the Employer may deem necessary to obtain from you for the purpose of administering your participation in the 2022 Plan in compliance with the data privacy laws in your country, either now or in the future. You understand and agree that you will not be able to participate in the 2022 Plan if you fail to provide any such consent or agreement requested by the Corporation and/or the Employer.

 

15.           The 2022 Plan and Other Agreements; Other Matters.

 

(a)           The provisions of this Agreement and the 2022 Plan are incorporated into the Notice of Grant by reference. You hereby acknowledge that a copy of the 2022 Plan has been made available to you.

 

 

This Agreement, the Notice of Grant and the 2022 Plan constitute the entire understanding between you and the Corporation regarding the Option. Any prior agreements, commitments or negotiations concerning the Option are superseded.

 

The grant of an option to a Participant in any one year, or at any time, does not obligate the Corporation or any Subsidiary to make a grant in any future year or in any given amount and should not create an expectation that the Corporation or any Subsidiary might make a grant in any future year or in any given amount.

 

(b)           Options are not part of your employment or service contract (if any) with the Corporation or any Subsidiary, your salary or fees, your normal or expected compensation, or other remuneration for any purposes, including for purposes of computing severance pay or other termination compensation or indemnity.

 

(c)           In consideration of the grant of the Option, no claim or entitlement to compensation or damages will arise from termination of your Option or diminution in value of the Option or Common Stock acquired through vested and exercise of the Option resulting from termination of your active employment by, or service with, the Corporation or any Subsidiary (for any reason whatsoever and whether or not in breach of local labor laws) and you hereby release the Corporation and its Subsidiaries from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then you will be deemed irrevocably to have waived your entitlement to pursue such claim.

 

(d)           Nothing contained in this Agreement creates or implies an employment contract or term of employment upon which you may rely.

 

(e)           To the extent that the Option refers to the Common Stock of the Corporation, and as required by the laws of your residence or employment, only authorized but unissued shares thereof shall be utilized for delivery upon exercise by the holder in accord with the terms hereof.

 

(f)            Copies of the Corporation’s Annual Report to Stockholders for its latest fiscal year and the Corporation’s latest quarterly report are available, without charge, on the Corporation’s website and at the Corporation’s business office.

 

(g)           Because this Agreement relates to terms and conditions under which you may purchase Common Stock of the Corporation, a Delaware corporation, an essential term of this Agreement is that it shall be governed by the laws of the State of Delaware, without regard to choice of law principles of Delaware or other jurisdictions. Any action, suit, or proceeding relating to this Agreement or the Option granted hereunder shall be brought in the state or federal courts of competent jurisdiction in the State of California.

 

(h)           The Option shall be subject to the terms of Section 13 of the 2022 Plan, including the amendment of this Agreement to the extent permitted by the 2022 Plan.

 

(i)            The Corporation is not providing any tax, legal or financial advice, nor is the Corporation making any recommendations regarding your participation in the 2022 Plan, or your acquisition or sale of the underlying shares of Common Stock. You understand and agree that you should consult with your own personal tax, legal and financial advisors regarding your participation in the 2022 Plan before taking any action related to the 2022 Plan.

 

 

(j)            In the event that any provision in this Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Agreement.

 

(k)           You acknowledge that a waiver by the Corporation of breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement, or of any subsequent breach of this Agreement.

 

16.           Appendix. The Option and the shares of Common Stock acquired under the 2022 Plan shall be subject to any special terms and conditions for your country set forth in the Appendix to this Agreement. Moreover, if you relocate to one of the countries included in the Appendix, the special terms and conditions for such country will apply to you, to the extent that the Corporation determines that application of such terms and conditions is necessary or advisable for legal or administrative reasons. The Appendix constitutes part of this Agreement.

 

17.           Imposition of Other Requirements. The Corporation reserves the right to impose other requirements on the Option and on any shares of Common Stock acquired upon vesting and exercise of the Option in accordance with Section 11(e) of the 2022 Plan, including the imposition of a lock-up period as described in Section 11(e)(ii) of the 2022 Plan in connection with an initial offering of the Corporation’s Shares pursuant to a registration statement filed by the Corporation with the Securities and Exchange Commission and upon request of the Corporation or the underwriters managing such offering of the Corporation’s securities.

 

* * * * *

 

By acknowledging this grant of an award or your acceptance of this Agreement in the manner specified by the administrator, you, Mobileye Global Inc. and the Employer agree that the Option identified in your Notice of Grant are governed by the terms of this Agreement, the Notice of Grant and the 2022 Plan. You further acknowledge that you have read and understood the terms of the Option set forth in this Agreement, the Notice of Grant and the 2022 Plan.

 

 

APPENDIX TO THE

 

MOBILEYE GLOBAL INC.
2022 EQUITY INCENTIVE PLAN

 

OPTION AGREEMENT

 

Capitalized terms used and not defined in this Appendix will have the meaning given to them in the Option Agreement (the “Agreement”) and/or the Mobileye Global Inc. 2022 Equity Incentive Plan (the “2022 Plan”), as applicable.

 

Terms and Conditions

 

This Appendix, which is part of the Agreement, contains additional or different terms and conditions that govern the Option if you are residing and/or employed outside of the United States. The terms and conditions in Part A apply to all participants outside of the United States. The country-specific terms and conditions in Part B apply to participants located in any of the countries listed in Part B.

 

If you are a citizen or resident of a country other than the one in which you are currently residing and/or working, transfer employment and/or residency to another country after the Option is granted to you or are considered a resident of another country for local law purposes, the Corporation will determine to what extent the terms and conditions herein will apply to you.

 

Notifications

 

This Appendix also includes information regarding securities laws and certain other issues of which you should be aware with respect to your participation in the 2022 Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of May 2022. Such laws are often complex and change frequently. As a result, the Corporation strongly recommends that you not rely on the information noted herein as the only source of information relating to the consequences of your participation in the 2022 Plan because the information may be out of date at the time you exercise the Option, upon the subsequent sale of the shares of Common Stock or upon the receipt of any dividends.

 

In addition, the information is general in nature and may not apply to your particular situation, and the Corporation is not in a position to assure you of any particular result. Accordingly, you are advised to seek appropriate professional advice as to how the relevant laws in your country may apply to your situation.

 

A.

NON-U.S. PROVISIONS

 

1.             Nature of Grant. The following provision supplements Section 15 of the Option Agreement. In accepting the Option, you acknowledge, understand and agree that:

 

(a)           the 2022 Plan is established voluntarily by the Corporation, is discretionary in nature and may be modified, amended, suspended or terminated by the Corporation at any time, to the extent permitted by the 2022 Plan;

 

(b)           the grant of the Option is voluntary and occasional and does not create any contractual or other right to receive future grants of restricted stock units, or benefits in lieu of restricted stock units, even if restricted stock units have been granted in the past;

 

 

(c)           all decisions with respect to future stock options or other grants, if any, will be at the sole discretion of the Corporation;

 

(d)           the grant of the Option and your participation in the 2022 Plan shall not create a right to employment or be interpreted as forming an employment or service contract with the Corporation, the Employer, or any parent or Subsidiary and shall not interfere with the ability of the Corporation, the Employer, or any parent or Subsidiary to terminate your employment;

 

(e)           you are voluntarily participating in the 2022 Plan;

 

(f)            the Option and the shares of Common Stock subject to the Option are not intended to replace any pension rights or compensation;

 

(g)           the Option and the shares of Common Stock subject to the Option, and the income from and value of the same, are not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculation of any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, long-service awards, pension or retirement or welfare benefits or similar mandatory payments;

 

(h)           the future value of the underlying shares of Common Stock is unknown, indeterminable and cannot be predicted with certainty;

 

(i)            If the underlying shares of Common Stock do not increase in value, the Option will have no value;

 

(j)            If you exercise the Option and acquire shares of Common Stock, the value of such shares of Common Stock may increase or decrease, even below the Exercise Price;

 

(k)           notwithstanding any terms or conditions of the 2022 Plan to the contrary, unless otherwise provided in the Agreement, for purposes of the Option, your employment will be considered terminated as of the date you are no longer actively providing services to the Corporation or any Subsidiary (regardless of the reason for such termination and whether or not later found to be invalid or in breach of employment laws in the jurisdiction where you are providing service or the terms of your service agreement, if any) and will not be extended by any notice period (e.g., your period of service would not include any contractual notice period or any period of “garden leave” or similar period mandated under employment laws in the jurisdiction where you are providing service or the terms of your service agreement, if any); the Committee shall have the exclusive discretion to determine when you are no longer actively providing services for purposes of the Option grant (including whether you may still be considered to be providing services while on a leave of absence); and

 

(l)            neither the Corporation nor the Employer nor any parent or Subsidiary will be liable for any foreign exchange rate fluctuation between your local currency and the United States Dollar that may affect the value of the Option or of any amounts due to you pursuant to the Option or the subsequent sale of any shares of Common Stock subject to the Option acquired under the 2022 Plan.

 

2.             Language. You acknowledge that you are proficient in the English language, or have consulted with an advisor who is sufficiently proficient in English, so as to allow you to understand the terms and conditions of this Agreement. If you have received this Agreement or any other document related to the Option translated into a language other than English and if the meaning of the translated version differs from the English version, the English version shall control.

 

 

3.             Electronic Delivery and Participation. The Corporation may, in its sole discretion, decide to deliver any documents related to the Option granted under the 2022 Plan or future stock options that may be granted under the 2022 Plan by electronic means or request your consent to participate in the 2022 Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to participate in the 2022 Plan through any on-line or electronic system established and maintained by the Corporation or a third party designated by the Corporation.

 

4.             Insider Trading Restrictions/Market Abuse Laws. You acknowledge that you may be subject to insider trading restrictions and/or market abuse laws based on the exchange on which the shares of Common Stock are listed and in applicable jurisdictions, including the United States, your country and the broker’s country, which may affect your ability to accept, acquire, sell or otherwise dispose of shares of Common Stock, rights to shares of Common Stock (e.g., the Option) or rights links to the value of shares of Common Stock under the 2022 Plan during such times as you considered to have “inside information” regarding the Corporation (as defined by the laws in the applicable jurisdictions). Local insider trading laws and regulations may prohibit the cancellation or amendment of orders you placed before you possessed inside information. Any restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Corporation insider trading policy. You acknowledge that it is your responsibility to comply with any applicable restrictions and that you should speak to your personal advisor on this matter.

 

5.             Exchange Control, Foreign Asset/Account and/or Tax Reporting Requirements. You acknowledge that there may be certain exchange control, foreign asset/account and/or tax reporting requirements which may affect your ability to acquire or hold shares of Common Stock or cash received from participating in the 2022 Plan (including the proceeds from the sale of shares of Common Stock and the receipt of any dividends) in a brokerage or bank account outside your country. You may be required to report such accounts, assets or related transactions to the tax or other authorities in your country. You also may be required to repatriate sale proceeds or other funds received as a result of participating in the 2022 Plan to your country within a certain time after receipt. You acknowledge that it is your responsibility to comply with such regulations and that you should speak to your personal advisor on this matter.

 

B.

COUNTRY-SPECIFIC PROVISIONS

 

ISRAEL

 

Terms and Conditions

 

Capital Gains Track Requirements. By accepting the Option, you acknowledge and agree that the award is subject to the 2022 Plan, the Israel Sub-Plan and Sections 102(b)(2) and (3) of the Income Tax Ordinance (New Version) – 1961, the Rules, and the Trust Agreement (as defined in the Israel Sub-Plan), a copy of which has been made available to you. You confirm that (a) you are familiar with the terms and provisions of Section 102 of the ITO, particularly the Capital Gains Track described in subsection (b)(2) and (3) thereof, and agree not to require the Trustee to release the award or to sell or transfer the award to you or any third party unless permitted to do so by applicable law (b) the terms and restrictions set forth in the Israel Sub-Plan will apply to the award in all respects, including without limitation with respect to mandatory tax withholding requirements, and the rights and authorities of the Company, its Subsidiaries and the Trustee with respect thereto, and (c) the Company, its Subsidiaries, assignees and successors shall be under no duty to ensure, and no representation or commitment is made, that an award qualifies or shall qualify under any particular tax treatment.

 

You further acknowledge and agree that the Option and any Shares issued upon exercise thereof shall be deposited with the Trustee, or shall be subject to a supervisory trustee arrangement approved by the ITA for the Trustee, in order to comply with the requirements of the capital gains track under Sections 102(b)(2) and (3) of the ITO.

 

 

You hereby undertake to release the Trustee from any liability in respect of any action or decision duly taken and bona fide executed in relation to the 2022 Plan, the Option or Shares issued thereunder.

 

Data Privacy. The following provision supplements Section 14 of the 2022 Plan:

 

You hereby authorize the Corporation, the Trustee and their representatives to collect, use and transfer all relevant information regarding your participation in the 2022 Plan to all Company personnel and agents and or third parties involved in the administration of the 2022 Plan and/or in the event of a corporate financing, merger, acquisitions and/or business transfers, including transfers outside of Israel and further transfers thereafter.

 

 

 

Exhibit 10.13

 

Corporate Headquarters

Intel Corporation 

2200 Mission College Blvd 

Santa Clara, CA, 95054-1549

 

June 1, 2022

 

Dear Amnon,

 

I am very excited about the opportunity that lies ahead for Mobileye and Intel. As we discussed, upon completion of Mobileye’s IPO, you will become the CEO of the new public company (Mobileye), reporting to me. Below outlines the parameters of how I am thinking about your going forward compensation.

 

Typical compensation for a public company CEO includes both cash and annual equity grants, where annual equity grants represent a substantial portion of the arrangement. Our intention is to follow a similar model for your compensation. Based on our review of the external benchmarks of comparable companies, we determined that $15,000,000 in target total compensation is a very strong compensation arrangement for you and consistent with other CEOs for comparable companies.

 

In addition to the annual target compensation, we think it is important to give you the opportunity to reinvest in Mobileye. If you invest in Mobileye with your own capital up to $10,000,000, we are prepared to match it 3:1 through a Mobileye equity grant that will vest 50% in year four and 50% in year five.

 

Below is a summary of the components of your compensation that we’ve discussed with you:

 

§

Target Total Compensation: $15,000,000

 

– Annual base salary: $800,000 

– Annual equity grant: $14,200,000

 

§

Matching equity grant: 3:1 matching on your Mobileye investment up to $10,000,000

 

– The specific terms of the buy-in will need to be established

 

 

We will continue to prepare the specific terms of your compensation in the coming weeks, but this letter outlines the key components of your going forward compensation, which is subject to the completion of the IPO. Our expectation is that any governance-related items would comply with typical market practice and that future compensation actions will be determined by the Mobileye Board or its designated compensation committee.

 

Please reach out to Christy or me with any questions or concerns here.

 

Sincerely,

 

/s/ Pat Gelsinger

Pat Gelsinger 

Chief Executive Officer

 

Accepted and Agreed

  

/s/ Amnon Shashua

Amnon Shashua

 

DATE:

June 3, 2022

 

 

 

Exhibit 10.18

 

STOCK COMPENSATION RECHARGE AGREEMENT

 

This Stock Compensation Recharge Agreement (this “Agreement”) is by and between Intel Corporation (“Intel”), a corporation organized under the laws of Delaware, and each of its subsidiaries listed as executing this Agreement on the signature page and in Annex B (each a “Subsidiary” and collectively the “Subsidiaries”). This Agreement is effective as of the effective date specified with respect to each Subsidiary on the signature page or in Annex B (the “Effective Date”). Intel and the Subsidiaries are each referred to as a “Party” and are collectively referred to as the “Parties.”

 

RECITALS

 

A.

WHEREAS, Intel has established various stock incentive programs for the benefit of its employees and the employees of the Subsidiaries;

 

B.

WHEREAS, such programs include (i) the Employee Stock Purchase Plan, under which employees can purchase Intel stock at a discounted price (“ESPP”), (ii) stock options under the Equity Incentive Plan (“Stock Options”), and (iii) restricted stock units under the Equity Incentive Plan (“RSUs”);

 

C.

WHEREAS, from time to time, Intel offers the ESPP and grants Stock Options and RSUs, and may in the future offer or grant other forms of stock compensation, to Employees of the Subsidiaries, in order for the Subsidiaries to provide incentives to attract and retain qualified employees (“Awards” and each an “Award” and the respective equity securities of Intel underlying any particular Award shall hereinafter be referred to as the “Equity Securities”);

 

D.

WHEREAS, in cases in which the Effective Date is earlier than the date this Agreement is executed, the Parties wish to memorialize the arrangement, orally agreed to and consistent with the terms of this Agreement, that each Party has understood, accepted, and in its conduct and statements acted in accordance with since the Effective Date; and

 

E.

WHEREAS, Intel and the Subsidiaries wish to enter into this Agreement, which requires the Subsidiaries to reimburse Intel for certain amounts relating to the Value of stock compensation provided to Employees in accordance with this Agreement.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth below, and for other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1.

Definitions.

 

In this Agreement the following terms shall have the meanings set forth below:

 

a.	“Employee” or “Employees” shall mean those employees of any Subsidiary who have received stock compensation under the Plans or who may, from time to time, be eligible for the Plans in the future.

 

 

b.	“Plan” or “Plans” shall refer to the ESPP, the Equity Incentive Plan, any successors to either, and any other equity compensation plan that Intel adopts and makes available to compensate Employees.

 

c.

“Recharge Amount” shall mean, unless otherwise agreed upon in writing between the Parties (i) with respect to a stock purchase under the ESPP, if the Employee pays the purchase price directly to the Subsidiary, then the “Recharge Amount” shall be the Value of the Equity Securities acquired at the time of purchase, but if the Employee pays the purchase price directly to Intel, then the “Recharge Amount” shall be the Value of the Equity Securities acquired at the time of purchase, less the price paid for the Equity Securities by the Employee, (ii) with respect to Stock Options, if the Employee pays the purchase price directly to the Subsidiary, then the “Recharge Amount” shall be the Value of the Equity Securities exercised under such Stock Options at the time of exercise, but if the Employee pays the purchase price directly to Intel, then the “Recharge Amount” shall be the Value of the Equity Securities exercised under such Stock Options at the time of exercise, less the purchase price paid by the Employee, and (iii) with respect to RSUs, the Value of the underlying Equity Securities on the vesting date. The Recharge Amount shall also include any other fees, social security or similar employment taxes, withheld amounts, or other expenses directly related to the Awards, as determined by Intel in its sole discretion.

 

d.	“Value” shall have the same meaning as prescribed for fair market value in the relevant Plan, or such other price as determined by the Parties.

 

2.

Provision of Stock Compensation.

 

Intel hereby acknowledges that it has offered or granted, and in the future may offer or grant, Awards under the Plans to such Employees as Intel in its sole discretion shall determine. Each Subsidiary shall be responsible for complying with the requirements, if any, of the laws of the Subsidiary’s country in the performance of this Agreement.

 

3.

Payment of Recharge Amount and Other Costs Associated with Awards.

 

a.

Each Subsidiary acknowledges that the offer or grant by Intel of stock compensation under the Plans and the subsequent delivery and disposition of Equity Securities of Intel under the Plans are, and are intended by all Parties to be, compensation to Employees for services performed for a Subsidiary and represent a valuable incentive that helps the Subsidiaries attract, motivate, and induce continued service of Employees.

 

b.

Each Subsidiary understands that it must pay Intel for providing stock compensation to Employees and hereby agrees to pay to Intel the Recharge Amount with respect to any Awards. Such Recharge Amount will be due with respect to any Employee who is employed by the relevant Subsidiary or former Employee who was most recently employed by the relevant Subsidiary at the time of the stock purchase under the ESPP, exercise of a Stock Option, or vesting of an RSU, as applicable.

 

c.

Unless otherwise agreed by the Parties, within sixty (60) days after Intel provides an intercompany charge to the Subsidiary with respect to an Award, each Subsidiary shall pay to Intel the Recharge Amount, as determined pursuant to paragraph c. of Section 1, as set forth in the notification pursuant to Section 4 below. In the event that any Plans provide for other forms of equity compensation in addition to stock purchases under the ESPP, Stock Options, and RSUs, the Parties shall mutually agree to the Recharge Amount based on the methodology used for stock purchases under the ESPP, Stock Options, and RSUs

 

 

d.

Except as may otherwise be agreed by the Parties hereto, all payments made under this Agreement shall be made in United States Dollars. At the discretion of Intel, Intel may assess interest on amounts not timely paid under this Agreement at the applicable federal short-term rate, compounding monthly, under section 1274(d) of the Internal Revenue Code of 1986, as amended, from the date due until payment is made.

 

e.	The amount of the payment described in paragraph b. of this Section 3 shall be subject to any adjustments as shall be necessary to ensure compliance with the tax and other relevant foreign laws that apply to the applicable Subsidiary.

 

f.

In the event that a Subsidiary is required under domestic law, rules or regulations to withhold taxes upon paying the Recharge Amount to Intel, the payment to Intel shall be the Recharge Amount net any withheld amounts. Upon request, the Subsidiary shall provide Intel with the certificate of tax withholding.

 

4.

Notification of Recharge Event.

 

At the end of each calendar month, or such other period as may be mutually agreed, Intel shall notify the Subsidiaries of any event that obligates the Subsidiaries to make a payment to Intel under Section 3 above, together with computations and supporting documentation detailing the amount of the required payment.

 

5.

No Third-Party Beneficiaries.

 

This Agreement is entered into between the Parties hereto for their exclusive mutual benefit. No person or entity shall be a third-party beneficiary under this Agreement.

 

6.

Waiver.

 

No provision of, or a right created under, this Agreement may be waived or varied except with the written consent of both Parties.

 

7.

Term and Termination.

 

This Agreement shall be effective as from the Effective Date and shall continue to be effective until:

 

a)

terminated by either Party upon giving written notice to the other Party not less than 30 days prior to the date on which such termination is to become effective, provided however that Section 3 of this Agreement shall continue to be effective with respect to any Awards issued prior to the date of termination of this Agreement; or

 

b)

termination of all of the Plans, provided however, that this Agreement shall continue to be effective with respect to any Awards granted prior to the date of termination of this Agreement and the Plans.

 

 

8.

Assignment.

 

This Agreement may not be assigned by either Party without the prior written consent of the other Party, provided however, that Intel may, without the consent of the Subsidiaries, assign this Agreement, in whole or in part, to any of its affiliates.

 

9.

Independent Entities

 

Each of the Parties to the Agreement is an independent enterprise. No Party is, and nothing in this Agreement shall constitute any Party as, the employer, principal, agent or partner of, or joint venture with, another Party.

 

10.

Notice.

 

Every notice or other communication relating to this Agreement shall be in writing, and shall be so posted, delivered or sent by electronic mail or facsimile to the Party for whom it is intended at such address as may from time to time be indicated by it to the other Party.

 

11.

Governing Law.

 

This Agreement shall be governed by, and construed in accordance with, the laws of the State of California and all applicable laws of the United States. The place of jurisdiction for any suit, action or proceeding arising out of or in connection with this Agreement shall be the State of California.

 

12.

Entire Agreement.

 

This Agreement and the other related agreements referred to herein (such as the Plans) set forth the entire agreement and understanding between the Parties. This Agreement supersedes any prior agreement between the Parties with respect to the same subject matter. Any amendment or modification to this Agreement shall be in writing and must be signed by both Intel and the Subsidiaries, except additional Intel subsidiaries can become additional parties to this Agreement, and may add any additional terms to this Agreement (and such terms are incorporated herein by reference), by executing a signature page substantially in the form of Annex A, attached hereto and incorporated herein by references, and numbered as Annex B-1, Annex B-2, etc.

 

13.

Headings and Counterparts.

 

The headings in this Agreement are inserted for convenience of reference only and are not intended to be a part of or affect the meaning or interpretation of this Agreement. Additionally, this Agreement may be executed in one or more counterparts and by the Parties to it in separate counterparts of which when executed each shall be an original but which shall together constitute one and the same agreement.

 

14.

Reference to Singular/Plural.

 

In this Agreement any reference to the singular shall include the plural and vice versa.

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives on the date(s) set forth below.

 

Intel Corporation
By:	/s/ Sharon Heck
	Sharon Heck
	Corporate Vice President
Dated:	11/4/2021

 

Subsidiaries

 

Effective

Signature

Company

Company Name

Jurisdiction

Date

Print Name

Title

Signature

Date

607

Mobileye Vision Technologies Ltd.

Israel

8/8/2017

Amnon Shashua

Director

/s/ Amnon Shashua

11/09/21

607A

Mobileye B.V.

Netherlands

8/8/2017

Tiffany Silva

Managing Director

/s/ Tiffany Silva

11/4/2021

607B

Mobileye, Inc.

United States

8/8/2017

Amnon Shashua

Director

607C

Mobileye Japan Ltd.

Japan

8/8/2017

Amnon Shashua

Director

/s/ Amnon Shashua

11/09/21

607D

Mobileye Germany GmbH

Germany

8/8/2017

Amnon Shashua

Director

629

Moovit App Global Ltd.

Israel

6/1/2020

Tiffany Silva

Director

/s/ Tiffany Silva

11/4/2021

629B

Moovit, Inc.

United States

5/5/2020

Tiffany Silva

Secretary

 

 

 

Exhibit 10.19

 

LOAN AGREEMENT

 

LOAN AGREEMENT, dated as of April 21, 2022 (this “Agreement”), between Intel Overseas Funding Corporation, a Delaware corporation (the “Lender”), and Cyclops Holdings Corporation, a Delaware corporation (the “Borrower”).

 

W I T N E S S E T H:

 

WHEREAS, the Borrower has determined to make a pro rata dividend distribution to its sole stockholder, the Lender (the “Distribution”); and

 

WHEREAS, in furtherance of the Distribution, the Borrower shall distribute to the Lender US $3,500,000,000 in the form of an intercompany term loan.

 

THEREFORE, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

Section 1.01        Definitions. The following terms shall have the meanings ascribed to them below or in the Sections of this Agreement indicated below:

 

“Agreement” has the meaning ascribed to such term in the preamble hereto.

 

“Borrowing Date” means April 21, 2022.

 

“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York, NY are authorized by law to close.

 

“Dollar” or “US$” means the lawful currency of the United States of America.

 

“Event of Default” has the meaning ascribed to such term in Section 8.01.

 

“Governmental Authority” means the government of the United States, or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

“Loan” has the meaning ascribed to such term in Section 2.01.

 

“Maturity Date” shall mean April 21, 2025.

 

“PIK Interest” has the meaning ascribed to such term in Section 3.01.

 

“Subsidiary” means, with respect to any person, any corporation, partnership, limited liability company, joint venture or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership, limited liability company or other entity or otherwise has the right to vote a majority of the voting shares of such corporation, partnership, limited liability company or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such person or one or more Subsidiaries of such person.

 

 

ARTICLE II

 
THE Loan

 

Section 2.01        The Loan. (a) Subject to the terms and conditions hereof, the Borrower hereby agrees to pay the Lender an aggregate principal amount of (i) US $3,500,000,000 plus (ii) all accrued and capitalized PIK Interest thereon which shall constitute additional principal in accordance with Section 3.01(a) below (the “Loan”).

 

(b)               The aggregate principal amount of the Loan (including all accrued and capitalized PIK Interest thereon) shall be payable to the Lender, together with accrued and unpaid interest thereon, on or before the Maturity Date. The Borrower’s obligation to repay the Loan shall be evidenced by this Agreement.

 

Section 2.02        Optional Prepayment. Subject to Section 4.01, the Borrower shall have the right, at its option, on any Business Day, to prepay the Loan in whole or in part, without premium or penalty. Each prepayment hereunder shall be accompanied by interest on the principal amount of the Loan being prepaid to the date of prepayment.

 

ARTICLE III

 

INTEREST

 

Section 3.01        Interest(a). (a) The Borrower also promises to pay interest on the unpaid principal amount of the Loan (including all accrued and capitalized PIK Interest thereon) at a per annum rate equal to 1.26%. All computations of interest shall be made on the basis of a 360-day year, for the actual number of days elapsed in the relevant period (including the first day but excluding the last day).

 

(b)               Interest will be payable quarterly in cash in arrears on the last Business Day of each March, June, September and December (commencing with June 30, 2022) and shall also be payable upon (x) any prepayment of the Loan (whether in whole or in part) to the extent accrued on the amount being prepaid and (y) the Maturity Date; provided that prior to June 30, 2024, such interest shall be paid by being automatically added to the outstanding principal amount of the Loan (“PIK Interest”) and such PIK Interest shall thereafter constitute principal for all purposes of this Agreement.

 

 

(c)               After the occurrence and during the continuance of an Event of Default (as defined below), the Borrower shall pay interest on past due amounts owing by it hereunder at a rate that is 2.00% per annum in excess of the rate of interest otherwise payable under this Agreement, to the fullest extent permitted by applicable law.  Accrued and unpaid interest on such amounts (including interest on past due interest) shall be due and payable upon written demand.

 

(d)               In no event shall the amount of interest due or payable hereunder exceed the maximum rate of interest allowed by applicable law, and in the event any such payment is inadvertently paid by the Borrower or inadvertently received by the Lender, then such excess sum shall be credited as a payment of principal, unless the Borrower shall notify the Lender, in writing, that the Borrower elects to have such excess sum returned to it. It is the express intent hereof that the Borrower not pay and that Lender not receive, directly or indirectly, in any manner whatsoever, interest in excess of that which may be lawfully paid by the undersigned Borrower under applicable law.

 

ARTICLE IV

 

PAYMENTS

 

Section 4.01        Method of Payment. All payments hereunder shall be made to the Lender in lawful money of the United States in same day funds, subject to Section 9.10, without deduction, set-off or counterclaim, at the office of the Lender on the date when due, or as otherwise mutually agreed to by the Borrower and the Lender. If the Loan or any other amount due hereunder becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day, and interest shall be payable thereon at the rate herein specified during such extension. Each payment made hereunder shall be credited first to interest then due and the remainder of such payment shall be credited to principal, and interest shall thereupon cease to accrue upon the principal so credited.

 

ARTICLE V

 

REPRESENTATIONS AND WARRANTIES

 

Section 5.01        Representations and Warranties. The Borrower represents and warrants to the Lender that:

 

(a)               The Borrower is a duly incorporated and validly existing corporation in good standing under the laws of the jurisdiction of its organization, (ii) the Borrower has the requisite corporate power and authority to execute, deliver and perform this Agreement and (iii) each of the Borrower and its Subsidiaries is in compliance with all laws, orders, writs and injunctions, except, with respect to this clause (iii), to the extent that failure to be so in compliance would not have a material adverse effect on the business, operations, properties, assets, condition (financial or otherwise) of the Borrower and its Subsidiaries or the ability of the Borrower to comply with its obligations under this Agreement (such a material adverse effect, a “Material Adverse Effect”).

 

 

(b)               All authorizations, consents, approvals, registrations, exemptions and licenses with or from governmental authorities which are necessary for the borrowing hereunder, the execution and delivery of this Agreement and the performance by the Borrower of its obligations hereunder have been effected or obtained and are in full force and effect.

 

(c)               This Agreement constitutes the duly authorized, legally valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to the effect of any applicable laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar laws relating to or affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

 

(d)               The execution, delivery and performance by the Borrower of this Agreement does not and will not (i) contravene or violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect and applicable to the Borrower or any of its Subsidiaries, or any property of the Borrower or any of its Subsidiaries, or (ii) violate the Borrower’s organizational documents or the organizational documents of any of its Subsidiaries.

 

ARTICLE VI 

 

CONDITIONS TO EFFECTIVENESS

 

Section 6.01        Conditions to Effectiveness. This Agreement shall be effective upon execution by each of Borrower and the Lender.

 

ARTICLE VII

COVENANTS

 

Section 7.01        Affirmative Covenants. Until repayment in full of the Loan and performance of all other obligations of the Borrower hereunder, and unless otherwise amended by the Lender in accordance with Section 9.03, the Borrower shall:

 

(a)               Notify the Lender promptly after the discovery by any officer of the Borrower of the occurrence of (i) any Event of Default, or any event which with the giving of notice or lapse of time, or both, would constitute an Event of Default; (ii) any material litigation or proceedings that are instituted against the Borrower or its Subsidiaries or any of their respective assets; and (iii) any other development in the business or affairs of the Borrower or its Subsidiaries which could have a Material Adverse Effect; in each case describing the nature thereof and the action the Borrower proposes to take with respect thereto;

 

(b)               Pay and discharge, and cause each of its Subsidiaries to pay and discharge, all material taxes, assessments and governmental charges upon it, its income and its properties prior to the date on which penalties are attached thereto, unless and to the extent only that such taxes, assessments and governmental charges shall be contested in good faith and by appropriate proceedings by the Borrower or such Subsidiary, as the case may be, and that the Borrower or such Subsidiary shall have set aside on its books adequate reserves therefor;

 

 

(c)               Maintain its existence, and qualify and remain qualified to do business in each material jurisdiction in which the character of the properties owned or leased by it therein or in which the transaction of its business makes such qualification necessary and cause each of its material Subsidiaries so to do;

 

(d)               Comply with the requirements of all agreements, contracts, laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except if the failure to comply therewith could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

 

(e)               Not directly or indirectly convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or a substantial part of its business assets to any person or entity other than a Subsidiary, without the express written consent of the Lender; and

 

(f)                Not directly or indirectly make any distribution or similar payment to the direct or indirect holders of its equity interests (i) if at the time proposed for such payment an Event of Default has occurred and is continuing (or would result therefrom); or (ii) if at the time proposed for such payment any accrued and unpaid interest or other amounts due and payable (including any outstanding principal that is then due and payable) remain outstanding under this Agreement, without the express written consent of the Lender.

 

ARTICLE VIII

 

EVENTS OF DEFAULT

 

Section 8.01        Events of Default. If one or more of the following events (each, an “Event of Default”) shall occur:

 

(a)               The Borrower fails to pay any amount of principal under this Agreement when due and payable;

 

(b)               The Borrower fails to pay any amount of interest or any other amount required to be paid under this Agreement when due and payable and such default shall have continued unremedied for a period of five Business Days;

 

(c)               The Borrower fails to perform or observe any term, covenant or agreement contained in this Agreement, and such default shall have continued unremedied for a period of 30 days after any officer of the Borrower becomes aware of such default;

 

(d)               Any representation or warranty made by the Borrower herein or any statement or representation made in any certificate, report or opinion delivered in connection herewith shall prove to have been incorrect or misleading in any material respect when made;

 

(e)               Any obligation of the Borrower (other than its obligations hereunder) for the payment of borrowed money in excess of US $10,000,000 is not paid when due or becomes or is declared to be due and payable prior to the expressed maturity thereof, or there shall have occurred an event which, with the giving of notice or lapse of time, or both, would cause any such obligation to become, or allow any such obligation to be declared to be, due and payable;

 

 

(f)                The Borrower or any material Subsidiary makes an assignment for the benefit of creditors, files a petition in bankruptcy, is adjudicated insolvent or bankrupt, petitions or applies to any tribunal for any receiver of or any trustee for the Borrower or any Subsidiary or any substantial part of its property, commences any proceeding relating to the Borrower or any Subsidiary under any reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect, or there is commenced against the Borrower or any Subsidiary any such proceeding which remains undismissed for a period of 30 days, or the Borrower or any Subsidiary by any act indicates its consent to, approval of or acquiescence in any such proceeding or the appointment of any receiver of or any trustee for the Borrower or any Subsidiary or any substantial part of its property, or suffers any such receivership or trusteeship to continue undischarged for a period of 60 days;

 

(g)               there is entered against the Borrower or any Subsidiary of the Borrower a final judgment or order for the payment of money in an aggregate amount exceeding $100,000,000 and such judgment or order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period of 60 consecutive days; or

 

(h)               this Agreement, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or the satisfaction in full of all the obligations hereunder, ceases to be in full force and effect; or the Borrower or any Subsidiary of the Borrower contests in writing the validity or enforceability of any provision of this Agreement; or the Borrower denies in writing that it has any or further liability or obligation under this Agreement (other than as a result of repayment in full of the obligations hereunder), or purports in writing to revoke or rescind this Agreement (other than in accordance with its terms);

 

then upon the happening of any of the foregoing Events of Default which shall be continuing, the Loan shall become and be immediately due and payable upon written declaration to that effect delivered by the Lender to the Borrower; provided that upon the happening of any event specified in subsection (f) of this Section 8.01, the Loan shall be immediately due and payable without declaration or other notice to the Borrower. The Borrower expressly waives any presentment, demand, protest or other notice of any kind.

 

No failure or delay on the part of Lender to exercise any right, power or privilege under this Agreement and no course of dealing between the Lender and the Borrower shall impair such right, power or privilege or operate as a waiver of any default or an acquiescence therein, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies expressly provided in this Agreement are cumulative to, and not exclusive of, any rights or remedies that the Lender would otherwise have. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the right of the Lender to any other or further action in any circumstances without notice or demand.

 

 

ARTICLE IX

 

MISCELLANEOUS

 

Section 9.01        APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

Section 9.02        Expenses. The Borrower agrees to pay all out-of-pocket expenses incurred by the Lender, including reasonable fees and disbursements of counsel, in connection with the enforcement of this Agreement.

 

Section 9.03        Amendments. Any provision of this Agreement may be amended or waived only if such amendment or waiver is in writing and is signed by the Borrower and the Lender.

 

Section 9.04        Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Borrower and the Lender and their respective successors and assigns, except that the Borrower may not assign any of its rights hereunder without the written consent of the Lender.

 

Section 9.05        Cumulative Rights and No Waiver. Each and every right granted to the Lender hereunder or under any other document delivered hereunder or in connection herewith, or allowed it by law or equity, shall be cumulative and may be exercised from time to time. No failure on the part of the Lender to exercise, and no delay in exercising, any right will operate as a waiver thereof, nor will any single or partial exercise by the Lender of any right preclude any other or future exercise thereof or the exercise of any other right.

 

Section 9.06        Consent to Jurisdiction. Any judicial proceeding brought against the Borrower with respect to this Agreement may be exclusively brought in the courts of the State of New York, and any appellate court from any thereof, and, by its execution and delivery of this Agreement, the Borrower (a) accepts, generally and unconditionally, the jurisdiction of such courts and irrevocably agrees to be bound by any judgment rendered thereby and (b) irrevocably waives any objection it may now or hereafter have as to the venue of any suit, action or proceeding brought in such a court or that such court is an inconvenient forum. The Borrower consents that service of process upon it may be made by certified or registered mail, return receipt requested, at its address specified or determined in accordance with the provisions of Section 9.08 and service so made shall be deemed completed when received. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of the Lender to bring proceedings against the Borrower in the courts of any other jurisdiction.

 

Section 9.07        Waiver of Trial by Jury. THE BORROWER AND THE LENDER HEREBY IRREVOCABLY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS AGREEMENT. 

 

 

Section 9.08        Notices. All notices or other communications hereunder shall be deemed to have been duly given and made if in writing (including email communication) and if served by personal delivery upon the party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by an international courier service, or if sent by email; provided that confirmation of successful transmission is received, to the person at the following address:

 

If to the Borrower, at:	c/o Intel Corporation
	2200 Mission College Boulevard
	Mail Stop RNB4-151
	Attention:	Corporate Legal Group
	Email:	****

 

If to the Lender, at:	c/o Intel Corporation
	2200 Mission College Boulevard
	Mail Stop RNB4-151
	Attention:	Corporate Legal Group
	Email:	****

 

or to such other address as either party may specify by written notice to the other party.

 

Section 9.09        Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that both parties need not sign the same counterpart.

 

Section 9.10        Tax Matters(a). (a) The parties shall cooperate and produce on a timely basis any tax forms or reports reasonably requested by the other party in connection with any payment made by the Borrower to the Lender under this Agreement. Each party shall provide reasonable cooperation to the other party, at the other party’s expense, in connection with any official or unofficial tax audit or contest relating to payments made by the Borrower to the Lender under this Agreement.

 

(b)               In addition, in the event any of the payments made by the Borrower pursuant to Section 4.01 become subject to withholding taxes under the laws of any jurisdiction, the Borrower shall deduct and withhold the amount of such taxes for the account of the Lender to the extent required by law, such payment to the Lender shall be reduced by the amount of taxes deducted and withheld, and the Borrower shall pay the amount of such taxes to the proper Governmental Authority in a timely manner and promptly transmit to the Lender an official tax certificate or other evidence of such tax obligations, together with proof of payment from the relevant Governmental Authority of all amounts deducted and withheld sufficient to enable the Lender to claim such payment of taxes. The Borrower will provide the Lender with reasonable assistance to enable the Lender to recover such taxes as permitted by law.

 

 

Section 9.11        Assignments. The Borrower may not assign any of its rights or obligations hereunder without the prior written consent of the Lender. The Lender may transfer or otherwise assign its rights and obligations under this Agreement to any affiliate of the Lender.

 

Section 9.12        Severability. In case any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

 

Section 9.13        Interpretation. The Article and Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

Borrower			Lender
CYCLOPS HOLDING CORPORATION			INTEL OVERSEAS FUNDING CORPORATION
By:	/s/ Sharon Lynn Heck		By:	/s/ Tiffany Doon Silva
	Sharon Lynn Heck			Tiffany Doon Silva
	President			Director

 

SIGNATURE PAGE TO LOAN AGREEMENT

 

 

 

Exhibit 10.20

 

MEMORANDUM OF UNDERSTANDING

 

This Memorandum of Understanding (“MOU”) sets forth the mutual intent and agreement of

 

STMicroelectronics N.V. (“ST”), a company organized and existing under the laws of The Netherlands, having its registered offices at WTC Schiphol Airport, Schiphol Boulevard 265, 1118 BH Schiphol Airport Amsterdam The Netherlands, acting through its Swiss branch, with a registered office at 39, chemin du Champ-des-Filles, 1228 Plan-les-Ouates, Geneva, Switzerland

 

and

 

Mobileye Technologies Limitied (“Mobileye”) having offices at Julia House 3, Themistokli Dervis street, Nicosia, Cyprus.

 

Hereinafter individually called a “Party” and collectively called the “Parties”

 

RECITALS

 

A.

This MOU reflects the understandings reached by both parties on the terms and conditions of a cooperation which would include joint development and manufacturing of a product referred to as the “EyeQ2” and manufacturing services for an existing product referred to as the “EyeQ1”.

 

B.

This MOU would be later replaced by a definitive agreement (the “Final Agreement”) which is anticipated to reflect more elaborately the terms agreed upon in the MOU and add missing items when necessary. In case of possible conflict on items that have been agreed upon in this MOU, the MOU interpretation would be prevail.

 

AGREEMENT

 

The negotiation points below represent issues that have been discussed by the Parties and are to be used as a basis for preparing the Final Agreement.

 

1.0

Manufacturing Service Obligations for EyeQ1.

 

As requested by Mobileye, ST is available to assume the manufacturing services for the EyeQ1 device currently manufactured in TSMC.

 

Mobileye would provide free of charge to ST the EyeQ1 mask set to allow ST to have the device produced by TSMC.

 

1.1

Additionally, ST will assume the assembly and test services for the EyeQ1 device using the test programs written by Mobileye and agreed between the Parties in advance of testing.

 

1.2

Mobileye would perform qualification tests for the EyeQ1 in order the device to meet automotive qualification following the AEC-Q100 rev. F. In the event of any deficiencies in the qualification, ST will work with Mobileye to address any gaps in the EyeQ1.

 

1.3

ST would perform a test program review and acceptance of the existing EyeQ1 test program procedure.

 

1.4

ST would sell the EyeQ1 to Mobileye with an appropriate warranty that is consistent with the following points:

 

 

1.4.1

Mobileye will be responsible for all product failures that are a result of the product not meeting the EyeQ1 specification including design and mask errors.

 

1.4.2

ST will be responsible for failures due to manufacturing, testing and assembly.

 

1.4.3

ST will be responsible for failure analysis and ongoing improvements of test program, to be agreed between the Parties.

 

1.5

EyeQ1 responsibility handover would be completed by end of 2005.

 

2.0

Development Activities for EyeQ2.

 

EyeQ2 is a custom product intended for automotive image recognition systems. Block diagrams are outlined in Appendix A.

 

Mobileye will be principally responsible for the design of EyeQ2. ST is available to support Mobileye in the form of specific IP delivery, including standard cell libraries and memory compilers. ST is also available to provide assistance in design for test and design for manufacturability. More specifically, Mobileye and ST intend to work together to develop the EyeQ2 following the business scheme below:

 

ST Duties. And Mobileye Duties, Technical responsibilities and Schedule are defined in the APPENDIX A

 

3.0

Product Exclusivity.

 

3.1

Both the EyeQ1 and EyeQ2 are products that are specifically for Mobileye.

 

3.2

Mobileye is partnering exclusively with ST on the EyeQ1 and EyeQ2.

 

4.0

Support of Technical Issues.

 

4.1

If products fail to perform to applicable specifications, the products will be returned via a FAR (Failure Analysis Request). As required for practical reasons by Mobileye, ST systems will accommodate a service for issuing Failure Analysis to Mobileye’s end customers directly after having informed in writing Mobileye of the results of the FAR. Mobileye expressly agrees to automatically accept any FAR issued by ST.

 

A FAR may or may not result in a Return Material Authorization (RMA),

 

4.2

ST will perform initial failure analysis on products returned from Mobileye’s end customers, in accordance with the FAR process set forth above. 8D reports will be created as appropriate and will be provided to Mobileye and Mobileye’s end customers; Mobileye expressly agrees to automatically accept any 8D issued by ST.

 

Mobileye and will assist as required for application related problems, including providing application boards and consultation for the failure analysis team.

 

4.3

Applications support and technical assistance are the responsibility of Mobileye.

 

5.0

CONFIDENTIALITY

 

For the purpose of this article 5.0, Confidential Information shall mean any information disclosed by either party (“the Discloser”) to the other (“the Recipient”) in pursuance of this agreement.

 

 

Confidential Information in tangible form will be marked by the Discloser with a legend identifying it as “CONFIDENTIAL” and Confidential Information disclosed verbally or by demonstration will be identified as confidential at the time of disclosure, and summarized in a written document that is sent to the Recipient of the Confidential Information within thirty (30) days after the disclosure.

 

Each Party undertakes to use the same degree of care as it uses with respect its own information of a similar nature to avoid disclosing the Confidential Information received from the other Party unless the Discloser previously consented in writing to such disclosure.

 

This undertaking will not apply to any information that:

 

(a)

is in the public domain at the time of disclosure to the Recipient or, thereafter enters the public domain without breach of the terms of this Agreement;

 

(b)

is already known by the Recipient at the time of disclosure;

 

(c)

is subsequently developed by or on behalf of the Recipient independently of the Discloser’s Confidential Information;

 

(d)

becomes known from a third party without breach of the terms of this Agreement.

 

ST and Mobileye shall not use the Confidential Information for another or other purposes than for the joint development and manufacturing of “EyeQ2” and manufacturing services for “EyeQ1”.

 

Either Party may disclose any Confidential Information hereabove to its employees having the reasonable need for access to such Confidential Information in connection with or during the performance of this Agreement and the Parties shall ensure that such employees comply with the provisions of this article.

 

ST reserves the right and Mobileye agrees that ST may disclose the Confidential Information of Mobileye to any of the Affiliates on a “need to know” basis, and ST shall ensure that such Affiliates comply with the provisions of this MOU.

 

6.0

Intellectual Property Rights.

 

6.1

Each Party will continue to own all background technology it brings to the relationship.

 

6.2

Mobileye shall own all of the technologies developed solely by Mobileye and will have the right to modify, adapt, or extend them in any fashion it chooses.

 

6.3

ST shall own all of the technologies developed solely by ST, ST and will have the right to modify, adapt, or extend them in any fashion it chooses.

 

6.4

ST will grant Mobileye the necessary non-exclusive licenses to use the delivered ST IPs solely for the purpose of designing and selling the EyeQ2 product.

 

6.5

Mobileye shall grant ST the necessary licenses for manufacturing and selling to Mobileye the EyeQ2 product.

 

7.0

Publicity.

 

The Parties agree to issue a mutually agreed upon press release related to the subject matter of the Final Agreement immediately after the signature of MOU.

 

 

8.0

Sales.

 

8.1

ST will ship the EyeQ1 and EyeQ2 directly to the end customer address as specified by Mobileye.

 

8.2

Invoicing will be between end customer and Mobileye and between Mobileye and ST.

 

8.3

ST will sell the EyeQ1 and EyeQ2 to Mobileye according to ST’s terms and conditions of sale (in particular with a 3 Years product warranty) that have to be compliant with the terms and conditions of sale of Mobileye versus its end customer. To remove doubt, ST’s terms and conditions should reflect the standard practice given by ST, on other similar ST products, to Mobileye’s end customers. In the event of a conflict between the MOU and ST’s standard terms and conditions, the MOU shall prevail.

 

8.4

EyeQ1 and EyeQ2 devices would bear the branding of both Parties.

 

8.5

Mobileye will sell the EyeQ1 and EyeQ2 together with the Mobileye specific software to its end customers as Mobileye products under the terms and conditions established by Mobileye directly with its end customers. Mobileye is liable to its end customers for the products sold by Mobileye.

 

8.6

The natural expiration of the Final. Agreement will not prevent Mobileye from purchasing products under ST’s standard terms and conditions of sale as consistent with Section 8.3.

 

8.7

End of life initiated by ST without concurrence from Mobileye (referred to herein as a “unilateral” end of life) for EyeQ1 and EyeQ2 cannot occur within the first six (6) years from qualification.

 

8.8

Termination of agreement prior to production of EyeQ1 and/or EyeQ2 will only be permitted for cause or for failure of EyeQ1 and/or EyeQ2 to meet technical feasibility criteria.

 

8.9

In the event that ST issues a unilateral end-of-life notice for EyeQ1/EyeQ2, ST would transfer, free of charge, all the accumulated changes to the test program, burn-in boards, test boards, and qualification boards.

 

8.10

In the event that ST issues a unilateral end-of-life notice for the EyeQ1 or EyeQ2, ST will provide the end-of-life notice under the following terms: provided that a three (3) years production warranty is in any way released to Mobileye, ST will provide three (3) years advance notice of end-of-life and ST will allow up to twelve (12) months for Mobileye to place orders following the expiration of the three (3) years notice, and twelve (12) months for Mobileye to take final delivery of the products. For clarification, a unilateral end-of-life would take effect no sooner than ten (10) years from qualification.

 

9.0

Quality.

 

9.1

ST would be accessible to Mobileye end customers and assist in responding to audits, and common quality reporting requests which are consistent with ST’s current practices. Mobileye may not contractually commit to audits of ST or ST’s manufacturing facilities without ST’s express written approval.

 

9.2

ST will comply with ST’s automotive quality policies as expected by Mobileye’s end customers. Mobileye must manage end customer’s quality policies.

 

 

10.0

Non-Competition

 

During the lifetime of this MOU and for eighteen (18) months after termination or expiration of this MOU, ST shall not engage in the sale of a custom device, which is designed and marketed as an application specific (ASIC) to one or more of the existing applications running on EyeQ1 or EyeQ2.

 

The exclusivity relation between the Parties assumes the following: (1) ST shall actively promote EyeQ1 and EyeQ2 to its automotive customers by, among other things, including EyeQ1 and EyeQ2 in any materials (catalogues) it provides to customers on its future plans for automotive microprocessors; and (2) ST shall not develop with another party a device for use in automotive specific image recognition applications equal or resembling to the specific applications promoted by Mobileye on the EyeQ1 and EyeQ2 devices. If items (1) or (2) are violated then the exclusivity expires, however, this does not constitute a cause for termination of the agreement.

 

11.0

Various

 

If Mobileye ceases doing business or, in connection with bankruptcy proceedings is no longer supplying the EyeQ1 or EyeQ2 to its customers directly, ST agrees that it shall accept purchase orders from Mobileye customers authorized in writing (and in subject to such written authorization) to make such and for any then-existing EyeQ1 and EyeQ2 products under the same terms and conditions applicable to purchase orders accepted from Mobileye in the immediately preceding 12 months, or if no purchase orders were accepted during such period, under commercially reasonable terms and conditions. ST agrees that it shall execute any documents reasonably requested by Mobileye to evidence this obligation to customers.

 

Mobileye shall have the right to assign this MOU in connection with a merger, corporate reorganization, acquisition, or sale of all or substantially all of the assets to which this MOU pertains.

 

1.

Cancellation issue:

 

Mobileye can cancel or reduce the amount of an order before wafer start.

 

2.

Conditions of payment:

 

Payment should be within 45 days of receipt of invoice except as otherwise agreed in writing.

 

12.0

NRE & Fees

 

The following outlines the fees that have been discussed:

 

·

$*** at contract signature for design libraries and basic IPs delivery.

 

·

$*** at tapeout.

 

·

$*** at first samples delivery.

 

·

$*** would be deducted from the *** devices at $*** per unit.

 

 

13.0

Budget Pricing: EyeQ1

 

Volume

2006

2007

2008

2009

2010

2011

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

 

These prices are based on the following assumptions:

 

***[10 LINES REDACTED]***

 

14.0

Budget Pricing: EyeQ2

 

Volume

2008

2009

2010

2011

2012

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

 

These prices are based on the following assumptions:

 

***[7 LINES REDACTED]***

 

15.0

Duration.

 

This MOU provides the guidelines for the Final Agreement between the Parties. The MOU will be replaced by the Final Agreement which will contain more technical details about the technical activities of both Parties and additional elaborations and appendices as required. Following the signature of this MOU both Parties would immediately fix the necessary steps to start the cooperation.

 

16.0

Disputes.

 

All disputes between the Parties in connection to this MOU shall first be discussed in good faith between the Parties in order to try to find an amicable solution. If no solution can be found to settle the dispute within 45 days after giving notice to the defaulting party, then the dispute will be submitted to the Court of the jurisdiction of London, England. This agreement shall be governed by and construed in accordance with the laws of England.

 

All the above read, confirmed and signed.

 

STMicroelectronics N.V.

 

By:  Ugo Carena

Title:  Corporate VP STMicroelectronics

Signature:  /s/ Ugo Carena

Date and place:  Agrate, October 28, 2005

 

 

Mobileye Technologies Limitied

By:  Ziv Aviram

Title:  President and CEO

Signature: /s/ Ziv Aviram
November 2, 2005

 

STM — ME Agreement appendix	28 October 2005

 

***[APPENDIX A TO THE MOU BETWEEN
MOBILEYE & ST MICROELECTRONICS ON EYEQ2
ASIC (8 PAGES) REDACTED]***

 

Information contained in this document has been prepared exclusively for the use of Mobileye & STMicroelectronics. The information contained herein may not be disclosed or duplicated for others without proper authorization from Mobileye & STMicroelectronics

 

From:	Ofer Maharshak
Sent:	16:19 2010 [Hebrew text] 08 [Hebrew text]
To:	Martin Russell DUNCAN
Cc:	Amnon Shashua; Ziv Aviram; Mordehay CHOUCHAN; Elchanan Rushinek
Subject:	RE:  EyeQ3 budgetary quotation
Tracking:	Recipient	Delivery
	Martin Russell DUNCAN
	Amnon Shashua
	Ziv Aviram
	Mordehay CHOUCHAN
	Elchanan Rushinek	Failed:  08/06/2010 16:19

 

Hi Martin,

 

Thank you for your prompt response.

 

Following an internal review we decided to accept your offer. For the sake of minimizing possible mis-understanding please find below the terms as we understood them:

 

***[4 LINES REDACTED]***

 

3. EyeQ2 – prices will be adjusted as follows:

 

EyeQ2

Accumulated from 1st unit

2010

2011

2012

2013

2014

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

 

 

All other business terms will be identical to EyeQ1 and EyeQ2.

 

I suggest a simple addendum to reflect the above.

 

Martin - thank you very much for your support and help during this period that enabled us to come to this point and continue our true partnership. I am confident that both companies will benefit from this.

 

On behalf of Mobileye, Thank you and ST team!

 

Ofer.

 

Ofer Maharshak
Chief Financial Officer
Mobileye
P: +972 2 5417375
M: +972 54 4850289

  

From: Martin Russell DUNCAN [mailto:martin.duncan©st.com]
Sent: Tuesday, June 08, 2010 12:10 PM
To: ‘Martin Russell DUNCAN’; elchanan
Cc: Amnon Shashua; Ziv Aviram; Ofer Maharshak; ‘Mordehay CHOUCHAN’
Subject: RE: EyeQ3 budgetary quotation

 

Dear all,

 

I hope this is a little closer to your expectations for the high volumes that we are envisaging. If you wish to discuss further, please do not hesitate to call me and I will make myself available as I know this is very urgent to you.

 

***[22 LINES REDACTED]***

 

Best regards, Martin

 

 

Amendment 3 to the Memorandum of understanding

 

This Amendment to the Memorandum of Understanding is made this day 2^nd of April 2013 by and between:

 

STMicroelectronics International N.V., a Dutch Corporation, with a Swiss Branch and its Headquarters located at 39, Chemin du Champ-des-Filles, Plan-les-Ouates, 1228 Geneva, Switzerland (“ST”)

 

and

 

Mobileye Technologies Limited, having offices at Julia House 3, Themistokli Dervis street, Nicosia, Cyprus (“Mobileye”)

 

hereinafter collectively “Parties” and individually “Party”

 

Whereas

 

·

on November 2, 2005 the Parties entered into a Memorandum of Understanding (“MOU”) reflecting the understandings of both Parties on a cooperation for the development and manufacturing of a product named “EyeQ2” and for manufacturing services for a product named “EyeQ1”;

 

·

on October 26, 2006, the Parties signed an agreement implementing the MOU in relation to the costs connected to a new silicon revision of the “EyeQ1”, and granting to ST additional NRE fees;

 

·

on December 3, 2009, the Parties signed an agreement revising the budget pricing related to the “ByeQ2”.

 

NOW THEREFORE, in consideration of the recitals hereabove and subject to the terms, conditions and covenants set forth hereunder, ST and Mobileye agree as follows:

 

1.

Definitions

 

All defined terms consisting of one or more words bearing an initial capitalized letter used and not defined herein shall have the meanings assigned to them in the Agreement as amended hereby.

 

2.

Amendments

 

Section 15.0 of the MOU is hereby amended and restated in its entirety and shall read as follows:

 

This MOU shall be legally binding on the Parties and in force until the execution by the Parties of a “Final Agreement” (is defined in the MOU) or December 31, 2022 whichever event occurs first”

 

3.

General

 

3.1

Entire Agreement

 

This Amendment acts forth the entire agreement of the Parties hereto with respect to the matters coveted herein and, except as otherwise provided herein, supersedes, all prior agreements, covenants, arrangements, communications, representations and warranties, whether oral or written by any officer, employee or representative of any of either Party, it being acknowledged, however, that other than those sections specifically amended in Article 2 herein, nothing in-this Amendment shall affect the validity and enforceability of the provisions of the Agreement.

 

3.2

Amendment

 

No amendment to any provision of this Amendment shall be effective or binding on either of the Parties unless set forth in writing and executed by a duly authorized representative of each Party.

 

 

3.3

Severability

 

In case any provision in this Amendment shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The invalidity, illegality or unenforceability of any provision in this Amendment in any jurisdiction shall not invalidate or render illegal or unenforceable such provision in any other jurisdiction.

 

3.4

Counterparts

 

This Amendment shall be executed in two counterparts, each of which shall be deemed to be an original, and all shall constitute one and the same agreement.

 

3.5

Governing Law and Dispute Resolution

 

This Amendment shall be governed by and interpreted according to the terms and conditions set forth in Section 16.0 of the MOU.

 

All disputes arising out of or in connection with this Amendment shall be finally settled according to the terms and conditions set forth in Section 16.0 of the MOU.

 

4.

Entry into Force

 

This Amendment comes into effect on January 1^st, 2013.

 

IN WITNESS WHEREOF, this Amendment is signed by duly authorized representatives of the Parties at the date mentioned on the first page of this Amendment n. 1.

 

STMicroelectronics International N.V.			Mobileye Technologies Limited
Name:	Marco Maria Monti		Name:	Ziv Avram
Title:	General Manager, Executive Corporate Vice President		Title:	CEO
Date:	22-06-2013		Date:	26-5-2013
Signature:	/s/ Marco Maria Monti		Signature:	/s/ Ziv Avram
Name:	Paul Grimme		Name:	Chrystalla Mylona for and on behalf of Evan Directors LTD.
Title:	Executive Vice President		Title:	Director
Date:	30-04-2013		Date:	03-06-2013
Signature:	/s/ Paul Grimme		Signature:	/s/ Chrystalla Mylona

 

 

Exhibit 10.22

 

SHARE & Note sale and purchase agreement

 

Parties:

 

I.	Intel Finance B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid), incorporated under the laws of the Netherlands, with its corporate seat in Amsterdam, the Netherlands, registered with the trade register of the Chamber of Commerce under number 57978972 ("Seller");
II.	MobilEye B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid), incorporated under the laws of the Netherlands, with its corporate seat in Amsterdam, the Netherlands, its place of business at 13 Hartom Street, PO Box 45157, 97775 Jerusalem, Israel, and registered with the trade register of the Chamber of Commerce under number 34158597 ("Purchaser"),

 

Seller and Purchaser hereafter collectively referred to as "Parties" and each individually "Party".

 

RECITALS:

 

A.	The Parties form part of the Intel Corporation (INTC) group of companies.
B.	In relation to a restructuring project, sufficiently known to the Parties as Project Oak, the Parties have agreed on a transaction whereby Seller shall sell and transfer certain shares and certain capital notes held by it to the Purchaser (the "Transaction").
C.	The Parties have obtained all relevant internal and external approvals for entering into this agreement and for effectuating the Transaction, and now wish to lay down in writing their agreement and arrangements in relation to the Transaction.

 

IT IS HEREBY AGREED AS FOLLOWS:

 

1.	Definitions

 

In this agreement the following definitions are used:

 

Effective Date	May 31, 2022;
Capital Note #1	means the first capital note, issued by GG Acquisition Ltd, a corporation duly organized under the laws of the state of Israel, for the Seller as note holder, effective as of May 4, 2020;
Capital Note #2	means the second capital note, issued by GG Acquisition Ltd, a corporation duly organized under the laws of the state of Israel, for the Seller as note holder, effective as of May 4, 2020;

 

 

Capital Note #3	means the third capital note, issued by GG Acquisition Ltd, a corporation duly organized under the laws of the state of Israel, for the Seller as note holder, effective as of May 4, 2020;
Capital Note #4	means the fourth capital note, issued by GG Acquisition Ltd, a corporation duly organized under the laws of the state of Israel, for the Seller as note holder, effective as of May 4, 2020;
Notes	means the Capital Note #1, the Capital Note #2, the Capital Note #3, and the Capital Note #4;
Notes Purchase Price	has the meaning given in clause 4;
Parties or Party	has the meaning given to it in the preamble of this Agreement;
Purchase Price	has the meaning given in clause 4;
Purchaser	has the meaning given in the preamble of this Agreement under II;
Seller	has the meaning given in the preamble of this Agreement under I; and
Shares	means 100 ordinary shares, par value NIS 0.01 each, of GG Acquisitions Ltd., a company incorporated under the laws of the State of Israel, Company No. 516186376 ("GG");
Shares Purchase Price	has the meaning given in clause 4;
Transaction	has the meaning given in Recital B.

 

2.

Sale of the Shares and the Notes

 

2.1.

The Seller hereby sells and agrees to assign, transfer, set over, convey and deliver to the Purchaser, and the Purchaser hereby purchases and agrees to acquire, take over, assume and accept from the Sellers, with effect as of May 31, 2022 the Shares and the Notes.

 

2.2.

Subject to the terms and conditions set out herein, transfer of the Shares and the Notes shall take place in accordance with clause 3 of this Agreement.

 

2.3.

The legal transfer of the Shares and the Notes shall – if and to the extent permitted by law – be effective as of May 31, 2022, and the economic benefit and risk of the Shares and the Notes shall be for the benefit and account of Seller until (but excluding) May 31, 2022. From (and including) May 31, 2022, the economic benefit and risk of the Shares and the Notes shall be for the benefit and account of the Purchaser.

 

 

3.

Transfer

 

Transfer of the Shares and the Notes will take place with effect as from May 31, 2022 free and clear of any and all liens and encumbrances, in accordance with the following and with all other legal requirements under any applicable law:

 

a.

the Shares shall be transferred by way of the Parties executing the share transfer deed attached hereto as Schedule 1 (Share transfer Deed) and updating the share register of GG;

 

b.

the Notes shall be transferred by way of the Parties executing the deed of assignment attached hereto as Schedule 2 (Deed of Assignment); the Parties have given notice to the debtor under the Notes of the intended transfer and assignment of the Notes; the debtor has accepted the transfer and assignment of the Notes.

 

4.

Purchase price and settlement

 

4.1

The purchase price payable by the Purchaser to the Seller for the Shares shall be NIS 1 (the "Shares Purchase Price"). The purchase price payable by the Purchaser to the Seller for the Notes shall be USD 899,999,999.70 (the "Notes Purchase Price"; the Notes Purchase Price and the Shares Purchase Price jointly the "Purchase Price").

 

4.2

If and as required under applicable law, the Purchase Price shall be paid by the Purchaser to the Seller after deducting any applicable withholding tax that may be due on account thereof, pursuant to applicable law, unless the Seller has provided the Purchaser with a certificate of exemption from tax withholding (or a certificate of reduced tax withholding) from the Israel Tax Authorities (the “ITA”) in a form reasonably satisfactory to the Purchaser, in which case the Purchaser shall act in accordance with the certificate of exemption from tax withholding (or the certificate of reduced tax withholding).

 

5.

Representations and Warranties

 

5.1.

The Seller represents and warrants that it has the right to transfer title to the Shares and that it sells and transfers the Shares and the Notes free from all liens, pledge, charges and encumbrances and from all other rights exercisable by or claims by third parties, unless expressly provided in this Agreement.

 

5.2.

The Seller represents and warrants that it has fairly presented to Purchaser the financial condition of GG in all material respects, and that as of the date hereof, GG has no material liabilities or obligations, contingent or otherwise, which would have a material adverse effect on the financial condition of GG.

 

 

5.3.

All other representations and warranties, whether express or implied, other than the representations and warranties in this Agreement are hereby excluded to the fullest extent possible.

 

6.

Miscellaneous

 

6.1.

Assignment

 

Without the prior written consent of the other Party, rights under this Agreement cannot be assigned or encumbered (goederenrechtelijk onoverdraagbaar en niet te bezwaren) as provided for in Article 3:83(2) of the Dutch Civil Code (Burgerlijk Wetboek), nor can any rights or obligations under this Agreement in any way be transferred or disposed of.

 

6.2.

Entire agreement

 

This Agreement contains the entire agreement between the Parties on its subject matter. This Agreement replaces and supersedes any previous written or oral agreements between the Parties about the matters dealt with in this Agreement.

 

6.3.

Amendment

 

This Agreement can only be amended by a written and signed agreement between the Parties.

 

Each Party waives its right under Article 6:230(2) of the Dutch Civil Code (Burgerlijk Wetboek) to request a competent court to amend this Agreement. The other Party hereby accepts this waiver.

 

6.4.

Exclusions Title 1 Book 7 Dutch Civil Code

 

Articles 7:17 and 7:20 through 7:23 of the Dutch Civil Code (Burgerlijk Wetboek) will not apply to this agreement.

 

6.5.

No recission / nullification

 

Each Party hereby waives to the extent permitted by law, the right to (i) rescind (ontbinden) this Agreement in whole or in part, (ii) nullify (vernietigen) this Agreement in whole or in part, (iii) otherwise terminate this Agreement in whole or in part or (iv) to seek the rescission (ontbinding), or nullification (vernietiging) in whole or in part of this Agreement in court, other than in accordance with its terms. The other Party hereby accepts this waiver.

 

6.6.

Counterparts

 

This Agreement may be entered into in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.

 

 

6.7.

Digital signature

 

Any digital signature, including, without limitation, (i) any electronic symbol, process, or data attached to, or associated with this Agreement and (ii) any facsimile, ..pdf or other digital record of a handwritten signature, used by a person with the apparent intent to sign this Agreement, will constitute such person's signing of this Agreement and have the same legal effect as a handwritten signature (natte handtekening) on this Agreement's signature page. The Parties agree that any such digital signature provides for a sufficiently reliable method of signing within the meaning of Article 3:15a of the Dutch Civil Code (Burgerlijk Wetboek).

 

7.

Governing law and jurisdiction

 

7.1.

This agreement shall be governed by and construed in accordance with the laws of the Netherlands.

 

7.2.

Any dispute arising out or in connection with this agreement shall be submitted exclusively to the competent courts in Amsterdam, the Netherlands, notwithstanding the right of appeal.

 

In witness whereof, agreed upon and EXECUTED:

 

/s/ Tiffany Doon Silva		/s/ Sharon L. Heck
Intel Finance B.V.		Mobileye B.V.
by: Tiffany Doon Silva		by: Sharon L. Heck
date: 6/1/2022		date: 5/31/2022

 

 

Schedule 1      Share transfer Deed

 

Share Transfer Deed

 

The undersigned, Intel Finance B.V. (KVK Number 57978972) ("Transferor"), hereby transfers to MobilEye B.V. (KVK Number 34158597) (the "Transferee"), a total of 100 (One Hundred) Ordinary Shares, par value NIS 0.01 each (the "Shares"), of GG Acquisition Ltd., a company incorporated under the laws of the State of Israel, Company No. 516186376, registered in the name of the Transferor, to be held by the Transferee, on the same conditions on which the Transferor held the Shares at the time of the execution hereof, and the Transferee hereby accepts the Shares subject to the aforesaid terms and conditions.

 

In witness whereof, we affix our signatures hereto this 31st day of May, 2022.

 

Transferor:		Transferee:
/s/ Tiffany Doon Silva		/s/ Sharon L. Heck
Intel Finance B.V.		Mobileye B.V.
By: Tiffany Doon Silva		By: Sharon L. Heck
Date: 6/1/2022		Date: 5/31/2022

 

 

Schedule 2      Deed of Assignment

 

This Assignment and Assumption Agreement (this "Assignment"), effective as of May 31, 2022 (the "Effective Date"), is made and entered into by and among: Intel Finance B.V. (KVK Number 57978972) ("Assignor"), hereby transfers to MobilEye B.V. (KVK Number 34158597) (the "Assignee") all rights in and to the Notes (each a "Party" and collectively, the "Parties").

 

WHEREAS, the Assignor wishes to assign to Assignee as of the Effective Date all of his rights and obligations under the in accordance with the provisions of this Agreement; and

 

WHEREAS, Assignee wishes to accept such assignment of the Notes from Assignor, under the terms and subject to the conditions of this Agreement;

 

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:

 

1.

As of the Effective Date, the Assignor hereby assigns to Assignee all of Assignor's right, title and interest in the Notes, and Assignee accepts such assignment.

 

2.

As of the Effective Date, all references to "Assignor" in the Notes shall be references to Assignee and Assignee shall have all rights of the "Assignor" with respect to any rights under the Notes.

 

In witness whereof, we affix our signatures hereto this 31st day of May, 2022.

 

Assignor:		Assignee:
/s/ Tiffany Doon Silva		/s/ Sharon L. Heck
Intel Finance B.V.		Mobileye B.V.
By: Tiffany Doon Silva		By: Sharon L. Heck
Date: 6/1/2022		Date: 5/31/2022

 

 

 

Exhibit 21.1

 

Subsidiaries of the Registrant

 

Name of Entity			Jurisdiction
Cyclops Holdings Corporation			Delaware
Mobileye B.V.			Netherlands
Mobileye Vision Technologies Ltd.			Israel
Mobileye, Inc.			Delaware
Mobileye Germany GmbH			Germany
Mobileye Japan Ltd.			Japan
Mobileye Automotive Products & Service (Shanghai) Company Limited			China
Mobileye Technologies Limited			Cyprus
GG Acquisition Ltd.			Israel
Moovit App Global Ltd.			Israel
Moovit Inc.			Delaware

  

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the use in this Registration Statement on Form S-1 of Mobileye Global Inc. of our report dated March 2, 2022 relating to the financial statements of Mobileye Group (a business of Intel Corporation), which appears in this Registration Statement. We also consent to the reference to us under the heading “Experts” in such Registration Statement.

 

	/s/ Kesselman & Kesselman
	Certified Public Accountants (Isr.)
	A member firm of PricewaterhouseCoopers International Limited
Tel Aviv, Israel
September 30, 2022

 

 

 

Exhibit 99.1

 

Consent TO BE NAMED AS A DIRECTOR

 

In connection with the filing by Mobileye Global Inc. (the “Company”) of its Registration Statement (the “Registration Statement”) on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of the Company in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments and supplements thereto.

 

Dated: September 30, 2022
/s/ Eyal Desheh
Name: Eyal Desheh

 

 

 

Exhibit 99.2

 

Consent TO BE NAMED AS A DIRECTOR

 

In connection with the filing by Mobileye Global Inc. (the “Company”) of its Registration Statement (the “Registration Statement”) on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of the Company in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments and supplements thereto.

 

Dated: September 30, 2022
/s/ Jon M. Huntsman, Jr.
Name: Jon M. Huntsman, Jr.

 

 

 

Exhibit 99.3

 

Consent TO BE NAMED AS A DIRECTOR

 

In connection with the filing by Mobileye Global Inc. (the “Company”) of its Registration Statement (the “Registration Statement”) on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of the Company in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments and supplements thereto.

 

Dated: September 30, 2022
/s/ Claire C. McCaskill
Name: Claire C. McCaskill

 

 

 

Exhibit 99.4

 

Consent TO BE NAMED AS A DIRECTOR

 

In connection with the filing by Mobileye Global Inc. (the “Company”) of its Registration Statement (the “Registration Statement”) on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of the Company in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments and supplements thereto.

 

Dated: September 30, 2022
/s/ Christine Pambianchi
Name: Christine Pambianchi

 

 

 

Exhibit 99.5

 

Consent TO BE NAMED AS A DIRECTOR

 

In connection with the filing by Mobileye Global Inc. (the “Company”) of its Registration Statement (the “Registration Statement”) on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of the Company in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments and supplements thereto.

 

Dated: September 30, 2022
/s/ Frank D. Yeary
Name: Frank D. Yeary

 

 

 

Exhibit 99.6

 

Consent TO BE NAMED AS A DIRECTOR

 

In connection with the filing by Mobileye Global Inc. (the “Company”) of its Registration Statement (the “Registration Statement”) on Form S-1 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named as a nominee to the board of directors of the Company in the Registration Statement and any and all amendments and supplements thereto. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments and supplements thereto.

 

Dated: September 30, 2022
/s/ Saf Yeboah-Amankwah
Name: Saf Yeboah-Amankwah

 

 

Exhibit 107

 

CALCULATION OF FILING FEE TABLES

 

Form S-1

(Form Type)

 

Mobileye Global Inc.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered and Carry Forward Securities

 

Security Type

Security Class Title

Fee Calculation or Carry Forward Rule

Amount Registered

Proposed Maximum Offering Price Per Unit

Maximum Aggregate Offering Price(1)(2)

Fee Rate

Amount of Registration Fee

Carry Forward Form Type

Carry Forward File Number

Carry Forward Initial effective date

Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward

Newly Registered Securities

Fees to Be Paid

Equity

Class A common stock, par value $0.01 per share

Rule 457(o)

—

—

$

1,000,000,000.00

.0000927

$

92,700.00

Total Offering Amounts

$

1,000,000,000.00

$

92,700.00

Total Fees Previously Paid

Total Fee Offsets

Net Fee Due

$

92,700.00

 

(1)

Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(o) under the Securities Act of 1933, as amended.

 

(2)

Includes shares of our Class A common stock subject to the underwriters’ option to purchase additional shares.