EXHIBIT A
INDEX OF TRANSACTION DOCUMENTS
Joint Voluntary Notice Filed Pursuant to 31 C.F.R. Part 800, Subpart E
Prepared by:
On behalf of the Acquiror: Calderwood & Harkness LLP 1750 K Street NW, Suite 800 Washington, DC 20006
On behalf of the Target and Selling Stockholders: Wethersfield & Gale LLP 2000 Pennsylvania Avenue NW, Suite 600 Washington, DC 20006
INTRODUCTORY STATEMENT
This Exhibit A is submitted as part of the Joint Voluntary Notice (the "Notice") filed by Halcyon Semiconductor Aktiengesellschaft ("HSAG"), a publicly traded Aktiengesellschaft organized under the laws of the Federal Republic of Germany and registered with the Amtsgericht Dresden under commercial register number HRB 28416, through its wholly owned U.S. acquisition subsidiary, Halcyon US Holdings Inc., a Delaware corporation (EIN: 93-2841067) ("Purchaser"), and Marlowe Asset Management Photonics Inc. ("VPI"), a Delaware corporation (EIN: 26-4371885), pursuant to Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. § 4565), and the regulations promulgated thereunder at 31 C.F.R. Part 800 (the "CFIUS Regulations").
The documents listed below are submitted herewith in connection with HSAG's proposed acquisition (the "Transaction") of 100% of the outstanding equity interests of VPI for a base purchase price of One Billion Four Hundred Twenty Million Dollars ($1,420,000,000) in cash on a cash-free, debt-free basis, subject to a normalized net working capital target of Thirty-Four Million Six Hundred Thousand Dollars ($34,600,000), plus a potential earnout of up to Eighty-Five Million Dollars ($85,000,000) payable in two tranches upon achievement of specified government-contract revenue milestones in calendar years 2024 and 2025, bringing the maximum aggregate consideration to One Billion Five Hundred Five Million Dollars ($1,505,000,000). The Transaction is structured as a stock purchase in which the Purchaser will acquire all outstanding shares of VPI common stock (including all shares issuable upon exercise of vested options) from the selling stockholders identified in the Stock Purchase Agreement.
Certain documents or portions thereof listed in this Exhibit A contain confidential business information, proprietary technical data, and/or information subject to export control restrictions. Materials containing technical data controlled under the International Traffic in Arms Regulations ("ITAR"), 22 C.F.R. Parts 120–130, and classified national security information have been excluded from this filing or submitted separately through appropriate classified or controlled channels, as discussed with the Department of the Treasury, Office of Investment Security ("OIS"), during the pre-filing consultation conducted on June 19, 2023. The parties respectfully request that all documents submitted herewith be accorded confidential treatment in accordance with 31 C.F.R. § 800.702.
All documents are organized into the categories set forth below and numbered sequentially (A-1 through A-33) for ease of reference by the Committee and its constituent agencies. Unless otherwise noted, all documents are provided in their entirety. Where a document has been provided in excerpt or redacted form, the basis for such treatment is noted in the description of the applicable document.
PART I — PRINCIPAL TRANSACTION AGREEMENT
Document A-1: Stock Purchase Agreement
Description: This is the definitive agreement governing the sale and purchase of 100% of the outstanding equity interests of VPI (the "Stock Purchase Agreement" or "SPA"). The SPA provides for a base purchase price of One Billion Four Hundred Twenty Million Dollars ($1,420,000,000), payable in cash at the closing of the Transaction. The SPA further includes earnout provisions entitling the Sellers to receive additional consideration of up to Eighty-Five Million Dollars ($85,000,000), allocated as follows: (i) Fifty Million Dollars ($50,000,000) payable upon achievement of specified government-contract revenue milestones during calendar year 2024, and (ii) Thirty-Five Million Dollars ($35,000,000) payable upon achievement of specified government-contract revenue milestones during calendar year 2025. The SPA provides for an escrow holdback of Seventy-One Million Dollars ($71,000,000), representing five percent (5%) of the base purchase price, to be deposited with Pinnacle Trust Company, N.A. and held for a period of eighteen (18) months following the closing to secure the Sellers' indemnification obligations under Article IX of the SPA.
The SPA contains a normalized net working capital adjustment mechanism with a target of Thirty-Four Million Six Hundred Thousand Dollars ($34,600,000), as set forth in Section 2.5 of the SPA and calculated in accordance with the methodology described on Schedule 2.5 attached thereto. CFIUS-related closing conditions are set forth at Section 7.1(c) of the SPA, which conditions the obligation of both parties to consummate the Transaction upon (a) clearance of the Transaction by the Committee on Foreign Investment in the United States, including, if applicable, the conclusion of an investigation under 31 C.F.R. § 800.503 without any adverse action, or (b) if the President of the United States has not taken action to suspend or prohibit the Transaction within the applicable statutory period. The SPA contains customary representations and warranties of the Sellers and the Company (Article III), representations and warranties of the Purchaser (Article IV), pre-closing covenants including conduct of business provisions (Article V), additional agreements (Article VI), closing conditions (Article VII), termination provisions (Article VIII), and indemnification provisions (Article IX).
Note: The disclosure schedules to the SPA are submitted separately as part of this filing. Certain schedules relating to classified programs and ITAR-controlled technical data have been redacted or submitted through secure channels in coordination with OIS and the Defense Counterintelligence and Security Agency ("DCSA"), consistent with the procedures discussed during the pre-filing consultation on June 19, 2023.
Document A-2: Amendment No. 1 to Stock Purchase Agreement
Description: As of the date of this filing, no amendments to the Stock Purchase Agreement have been executed by the parties. This placeholder entry is reserved in the event that any amendment to the SPA is executed prior to the closing of the Transaction. Should any such amendment be executed, the parties will promptly supplement this Exhibit A and provide a copy of the amendment to the Committee.
PART II — ORGANIZATIONAL DOCUMENTS OF THE ACQUIROR
Document A-3: Certificate of Incorporation — Halcyon US Holdings Inc.
Description: Certificate of Incorporation of Halcyon US Holdings Inc. as filed with the Secretary of State of the State of Delaware on June 5, 2023. Halcyon US Holdings Inc. is organized as a Delaware C-corporation and was formed as a wholly owned subsidiary of Halcyon Semiconductor Aktiengesellschaft for the sole purpose of serving as the acquisition vehicle in connection with the Transaction. The registered agent for Halcyon US Holdings Inc. is National Registered Agents of Delaware, 160 Greentree Drive, Suite 101, Dover, Delaware 19904. The corporation's Employer Identification Number is 93-2841067. The Certificate of Incorporation authorizes the issuance of 1,000 shares of common stock, par value $0.01 per share, all of which are held by HSAG.
Document A-4: Bylaws of Halcyon US Holdings Inc.
Description: Bylaws of Halcyon US Holdings Inc. as adopted by the sole incorporator on June 5, 2023. The Bylaws provide for the governance of the acquisition vehicle, including provisions relating to the board of directors, officers, stockholder meetings, and related corporate governance matters. Pursuant to the Bylaws, the sole director of Halcyon US Holdings Inc. is appointed by HSAG in its capacity as the sole stockholder of the corporation.
Document A-5: Certificate of Good Standing — Halcyon US Holdings Inc.
Description: Certificate of good standing issued by the Secretary of State of the State of Delaware confirming that Halcyon US Holdings Inc. is a corporation in good standing under the laws of the State of Delaware. The certificate is dated within thirty (30) days of the date of this filing, consistent with the requirements of 31 C.F.R. § 800.502.
Document A-6: Satzung (Articles of Association) of Halcyon Semiconductor Aktiengesellschaft
Description: Current consolidated Satzung (Articles of Association) of HSAG, as last amended and registered with the Handelsregister of the Amtsgericht Dresden under commercial register number HRB 28416. HSAG is a publicly traded Aktiengesellschaft organized under the Aktiengesetz (German Stock Corporation Act). The company's registered headquarters are located at Industriestraße 44, 01099 Dresden, Saxony, Federal Republic of Germany. HSAG's shares are listed on the Frankfurt Stock Exchange and traded on the XETRA electronic trading platform under the ticker symbol HLC. The Legal Entity Identifier (LEI) assigned to HSAG is 5299007KXQ2M4GHILZ38. As of June 1, 2023, HSAG's market capitalization was approximately €14.8 billion.
Note: The Satzung is provided in the original German language together with a certified English translation prepared by a sworn translator (vereidigte Übersetzerin) in accordance with German law.
Document A-7: Handelsregisterauszug (Commercial Register Extract) — HSAG
Description: Current extract from the commercial register (Handelsregister) of the Amtsgericht Dresden for Halcyon Semiconductor Aktiengesellschaft, registered under HRB 28416. The extract identifies the current members of the Vorstand (Management Board), including Dr. Maximilian Ehrhardt, who serves as Vorstandsvorsitzender (Chairman of the Management Board / Chief Executive Officer), and Katarina Brückner, who serves as Finanzvorstand (Chief Financial Officer), together with the other members of the Vorstand and the composition of the Aufsichtsrat (Supervisory Board). The extract also sets forth HSAG's registered business purpose, registered capital, and other information recorded in the commercial register.
Note: The Handelsregisterauszug is provided in the original German language together with a certified English translation.
Document A-8: Organizational Documents — Halcyon US Inc. (Existing U.S. Subsidiary)
Description: Certificate of Incorporation and Bylaws of Halcyon US Inc., HSAG's existing wholly owned U.S. subsidiary. Halcyon US Inc. is organized as a Delaware C-corporation with Employer Identification Number 81-3056429. The company operates a fabless semiconductor design center located at 11501 Alterra Parkway, Suite 300, Austin, Texas 78758, and employs approximately 320 individuals. These organizational documents are provided to the Committee for its review of the existing U.S. footprint of the foreign person party to the Transaction. As of the date of this filing, Halcyon US Inc. does not perform classified work, does not hold any facility security clearance, and is not a party to any U.S. government contracts or subcontracts.
PART III — ORGANIZATIONAL DOCUMENTS OF THE TARGET
Document A-9: Certificate of Incorporation — Marlowe Asset Management Photonics Inc.
Description: Certificate of Incorporation of Marlowe Asset Management Photonics Inc. as originally filed with the Secretary of State of the State of Delaware on February 14, 2009, together with all amendments thereto through the date of this filing. VPI is organized as a Delaware C-corporation with Employer Identification Number 26-4371885.
Document A-10: Bylaws of Marlowe Asset Management Photonics Inc.
Description: Current Amended and Restated Bylaws of VPI, as most recently amended and restated. The Bylaws provide for the governance of VPI, including provisions relating to the board of directors, officers, committees, stockholder meetings, and related corporate governance matters. The VPI board of directors currently consists of five (5) members:
1. Dr. Nathan Trevorrow — Chairman of the Board, Founder, and Chief Executive Officer;
2. Marissa Sung-Avila — President and Chief Operating Officer;
3. Franklin Yee — Board designee of Ridgecrest Ventures Fund III, L.P.;
4. Olivia Hartmann — Board designee of Cascadian Capital Partners Growth Fund II, L.P.; and
5. Adrienne Delacroix — Independent Director.
Document A-11: Certificate of Good Standing — Marlowe Asset Management Photonics Inc.
Description: Certificate of good standing issued by the Secretary of State of the State of Delaware confirming that Marlowe Asset Management Photonics Inc. is a corporation in good standing under the laws of the State of Delaware. The certificate is dated within thirty (30) days of the date of this filing.
Document A-12: Stockholders' Agreement of Marlowe Asset Management Photonics Inc.
Description: Amended and Restated Stockholders' Agreement among VPI and its stockholders, setting forth the rights and obligations of the stockholders with respect to the governance of VPI, board designation rights, transfer restrictions, drag-along rights, tag-along rights, information rights, preemptive rights, and related matters. The Stockholders' Agreement identifies the following ownership structure of VPI as of the date of the SPA:
The Stockholders' Agreement includes board designation rights entitling Ridgecrest Ventures Fund III, L.P. and Cascadian Capital Partners Growth Fund II, L.P. each to designate one member of the VPI board of directors, and includes customary drag-along and tag-along provisions that are operative in connection with the Transaction.
PART IV — ORGANIZATIONAL DOCUMENTS OF SELLER ENTITIES
Document A-13: Certificate of Limited Partnership — Ridgecrest Ventures Fund III, L.P.
Description: Certificate of Limited Partnership of Ridgecrest Ventures Fund III, L.P. as filed with the Secretary of State of the State of Delaware. The general partner of Ridgecrest Ventures Fund III, L.P. is Ridgecrest Ventures Management LLC. The principal of Ridgecrest Ventures Management LLC is Franklin Yee, Managing Partner. The principal offices of Ridgecrest Ventures Fund III, L.P. are located at 3300 Sand Hill Road, Suite 220, Menlo Park, California 94025. Ridgecrest Ventures Fund III, L.P. holds 31.7% of the outstanding equity of VPI and is the largest institutional stockholder.
Document A-14: Limited Partnership Agreement — Ridgecrest Ventures Fund III, L.P.
Description: Amended and Restated Agreement of Limited Partnership of Ridgecrest Ventures Fund III, L.P. Provided in relevant excerpts regarding the authority of Ridgecrest Ventures Management LLC, as general partner, to authorize the Transaction on behalf of the limited partnership, including provisions relating to the disposition of portfolio investments and the requisite approvals therefor. The full agreement has not been provided in order to protect the confidential terms applicable to the fund's limited partners; additional excerpts or the complete agreement are available upon request by the Committee.
Document A-15: Certificate of Formation — Ridgecrest Ventures Management LLC
Description: Certificate of Formation of Ridgecrest Ventures Management LLC, the general partner of Ridgecrest Ventures Fund III, L.P., as filed with the Secretary of State of the State of Delaware. This document is provided to confirm the valid formation and existence of the general partner entity that is authorized to act on behalf of the fund in connection with the Transaction.
Document A-16: Certificate of Limited Partnership — Cascadian Capital Partners Growth Fund II, L.P.
Description: Certificate of Limited Partnership of Cascadian Capital Partners Growth Fund II, L.P. as filed with the Secretary of State of the State of Delaware. The general partner of Cascadian Capital Partners Growth Fund II, L.P. is Cascadian Capital Partners Management LLC. The principal of Cascadian Capital Partners Management LLC is Olivia Hartmann, Managing Director. The principal offices of Cascadian Capital Partners Growth Fund II, L.P. are located at 1201 Third Avenue, Suite 4400, Seattle, Washington 98101. Cascadian Capital Partners Growth Fund II, L.P. holds 24.3% of the outstanding equity of VPI and is the second-largest institutional stockholder.
Document A-17: Limited Partnership Agreement — Cascadian Capital Partners Growth Fund II, L.P.
Description: Amended and Restated Agreement of Limited Partnership of Cascadian Capital Partners Growth Fund II, L.P. Provided in relevant excerpts regarding the authority of Cascadian Capital Partners Management LLC, as general partner, to authorize the Transaction on behalf of the limited partnership, including provisions relating to the disposition of portfolio investments and the requisite approvals therefor. As with Document A-14, the full agreement has not been provided in order to protect the confidential terms applicable to the fund's limited partners; additional excerpts or the complete agreement are available upon request by the Committee.
Document A-18: Certificate of Formation — Cascadian Capital Partners Management LLC
Description: Certificate of Formation of Cascadian Capital Partners Management LLC, the general partner of Cascadian Capital Partners Growth Fund II, L.P., as filed with the Secretary of State of the State of Delaware. This document is provided to confirm the valid formation and existence of the general partner entity that is authorized to act on behalf of the fund in connection with the Transaction.
PART V — ANCILLARY TRANSACTION AGREEMENTS
Document A-19: Escrow Agreement
Description: Escrow Agreement governing the deposit, maintenance, and distribution of the escrow holdback amount of Seventy-One Million Dollars ($71,000,000), representing five percent (5%) of the base purchase price of the Transaction. The escrow funds will be deposited with Pinnacle Trust Company, N.A. at the closing of the Transaction and held for a period of eighteen (18) months following the closing date to secure the Sellers' indemnification obligations under Article IX of the SPA. The Escrow Agreement sets forth the procedures for the assertion and resolution of indemnification claims, the release and distribution of escrow funds (including interest earned thereon), the rights and duties of the Escrow Agent, and related administrative matters. The designated escrow officer at Pinnacle Trust Company, N.A. is Lisa Trujillo.
Document A-20: Sellers' Representative Agreement
Description: Sellers' Representative Agreement appointing Dr. Nathan Trevorrow as the Sellers' Representative for purposes of the SPA, the Escrow Agreement, and the administration of the earnout provisions. The agreement sets forth the scope of Dr. Trevorrow's authority to act on behalf of the Sellers in connection with post-closing matters, including the resolution of indemnification claims, the net working capital adjustment process, earnout calculations and disputes, and communications with the Purchaser on behalf of the Sellers. The agreement also addresses the Sellers' Representative's compensation, expense reimbursement, and indemnification by the Sellers.
Document A-21: Earnout Agreement
Description: Earnout provisions governing the payment of up to Eighty-Five Million Dollars ($85,000,000) in additional consideration to the Sellers upon the achievement of specified government-contract revenue milestones. The earnout is structured in two tranches: (i) Fifty Million Dollars ($50,000,000) payable if VPI achieves specified government-contract revenue milestones during calendar year 2024; and (ii) Thirty-Five Million Dollars ($35,000,000) payable upon achievement of specified government-contract revenue milestones during calendar year 2025. The maximum aggregate consideration payable in connection with the Transaction, inclusive of the base purchase price and the full earnout, is One Billion Five Hundred Five Million Dollars ($1,505,000,000). The earnout provisions may be incorporated within the SPA itself (at Article II and related schedules) or set forth as a separate standalone agreement; both forms are provided as applicable for the Committee's review.
Document A-22: Commitment Letter — Senior Secured Term Loan Facility
Description: Commitment letter for a Nine Hundred Million Dollar ($900,000,000) senior secured term loan facility to be used by HSAG and/or Halcyon US Holdings Inc. to partially finance the Transaction.
Key Terms: The term loan facility has a five (5)-year maturity, bears interest at SOFR plus 275 basis points, is subject to one percent (1%) annual amortization with the remaining balance due in a bullet payment at maturity, and is expected to fund at the closing of the Transaction, currently anticipated on or about February 9, 2024. The commitment is subject to customary conditions precedent, including the absence of a material adverse effect and the receipt of all required regulatory approvals, including CFIUS clearance.
Document A-23: Rep & Warranty Insurance Policy Binder
Description: Binder for the representations and warranties insurance ("RWI") policy obtained by the Purchaser in connection with the Transaction and bound with Graystone Specialty Insurance Company. The key terms of the RWI policy are as follows:
The RWI policy provides the Purchaser with insurance coverage for losses arising from breaches of the Sellers' and the Company's representations and warranties set forth in the SPA, subject to the terms, conditions, and exclusions of the policy.
Document A-24: Form of Non-Competition and Non-Solicitation Agreement
Description: Form of non-competition and non-solicitation agreement to be executed at closing by Dr. Nathan Trevorrow, Founder and Chief Executive Officer of VPI, and Marissa Sung-Avila, President and Chief Operating Officer of VPI. The agreement contains customary restrictive covenants, including non-competition, non-solicitation of employees and customers, and non-disclosure obligations, for a specified period following the closing of the Transaction.
Document A-25: Form of Employment Agreement — Dr. Nathan Trevorrow
Description: Form of post-closing employment agreement providing for the continued service of Dr. Nathan Trevorrow as Chief Executive Officer of VPI following the closing of the Transaction. This agreement is relevant to the personnel continuity commitments that the parties anticipate may be addressed in any mitigation measures or national security agreement that the Committee may require in connection with the Transaction. The agreement sets forth the terms and conditions of Dr. Trevorrow's employment, including compensation, benefits, duties and responsibilities, termination provisions, and restrictive covenants.
Document A-26: Form of Employment Agreement — Marissa Sung-Avila
Description: Form of post-closing employment agreement providing for the continued service of Marissa Sung-Avila as President and Chief Operating Officer of VPI following the closing of the Transaction. As with Document A-25, this agreement is relevant to the personnel continuity commitments that the parties anticipate may be addressed in any mitigation measures or national security agreement. The agreement sets forth the terms and conditions of Ms. Sung-Avila's employment, including compensation, benefits, duties and responsibilities, termination provisions, and restrictive covenants.
Document A-27: Form of Employment Agreement — Col. (Ret.) Bryce Hendrickson
Description: Form of post-closing employment agreement providing for the continued service of Col. (Ret.) Bryce Hendrickson as Vice President of Government Programs and Facility Security Officer of VPI following the closing of the Transaction. Col. (Ret.) Hendrickson serves as VPI's Facility Security Officer ("FSO") and holds a current TOP SECRET / Sensitive Compartmented Information (TS/SCI) personnel security clearance. His continued employment is critical to the maintenance of VPI's facility security clearance at the SECRET level and to the uninterrupted performance of VPI's classified and ITAR-controlled programs. This employment agreement is directly relevant to the facility security clearance maintenance provisions and personnel continuity commitments that the parties anticipate will be addressed in any mitigation measures or national security agreement that the Committee may require in connection with the Transaction.
PART VI — FINANCIAL ADVISOR ENGAGEMENT LETTERS
Document A-28: Engagement Letter — Ashgrove Capital Group
Description: Financial advisory engagement letter between HSAG and Ashgrove Capital Group, pursuant to which HSAG has engaged Ashgrove Capital Group as its exclusive financial advisor in connection with the Transaction. The engagement is led by Philippe Beaumont, Managing Director, Investment Banking Division, Ashgrove Capital Group. The engagement letter sets forth the scope of Velthorn's advisory services, the compensation terms (including success-based fees), expense reimbursement, indemnification, and related matters.
Document A-29: Engagement Letter — Ridgeway Bancorp LLC
Description: Financial advisory engagement letter between VPI, on behalf of itself and the selling stockholders, and Ridgeway Bancorp LLC, pursuant to which Ridgeway Bancorp LLC has been engaged as the exclusive financial advisor to VPI and the selling stockholders in connection with the Transaction. The engagement is led by Catherine Okafor, Managing Director, Technology Investment Banking Group, Ridgeway Bancorp LLC. The engagement letter sets forth the scope of Ridgeway's advisory services, the compensation terms (including success-based fees), expense reimbursement, indemnification, and related matters.
PART VII — ADDITIONAL REGULATORY AND COMPLIANCE DOCUMENTS
Document A-30: VPI DDTC Registration Statement
Description: Copy of VPI's current registration with the Directorate of Defense Trade Controls ("DDTC") of the U.S. Department of State. VPI has been registered with the DDTC since 2011 and maintains an active registration as a manufacturer and exporter of defense articles. The registration reflects VPI's status as a manufacturer of defense articles falling within Category XI(a)(3) of the United States Munitions List ("USML"), 22 C.F.R. § 121.1, which encompasses certain military electronics, including gallium nitride (GaN) monolithic microwave integrated circuits (MMICs) and related components designed for military radar, electronic warfare, and communications applications.
Document A-31: VPI Facility Security Clearance Documentation
Description: Documentation evidencing VPI's Facility Security Clearance ("FCL") at the SECRET level, as maintained under the National Industrial Security Program ("NISP") and administered by the Defense Counterintelligence and Security Agency ("DCSA"). The cleared facility is VPI's 45,000-square-foot gallium nitride-on-silicon carbide (GaN-on-SiC) fabrication facility located at 9200 Innovation Boulevard, Albuquerque, New Mexico 87113. VPI's Facility Security Officer is Col. (Ret.) Bryce Hendrickson, who holds a current TS/SCI personnel security clearance.
Note: Certain classified details relating to the specific classified programs performed at the facility, the identities of sponsoring government agencies, and related classified contract information have been excluded from this filing. References to relevant records maintained by DCSA are provided in lieu thereof. The parties are prepared to discuss VPI's classified activities in a classified setting if requested by the Committee, consistent with the procedures discussed during the pre-filing consultation on June 19, 2023.
Document A-32: HSAG Annual Report (FY2022)
Description: HSAG's published annual report (Geschäftsbericht) for the fiscal year ended December 31, 2022. The annual report includes HSAG's consolidated financial statements, management report (Lagebericht), and the report of the Supervisory Board (Bericht des Aufsichtsrats).
The financial statements were audited by Leinberger & Hess Wirtschaftsprüfungsgesellschaft, an independent auditing firm based in Frankfurt am Main, Germany. The engagement partner for the audit was Dr. Markus Hess. The auditors issued an unqualified audit opinion (uneingeschränkter Bestätigungsvermerk) on the consolidated financial statements.
Document A-33: VPI Audited Financial Statements (FY2022)
Description: VPI's audited financial statements for the fiscal year ended December 31, 2022, including the balance sheet, income statement, statement of cash flows, statement of stockholders' equity, and notes to the financial statements.
The financial statements were audited by Arbor & Greenfield LLP, an independent registered public accounting firm located at 1700 Lincoln Street, Suite 3200, Denver, Colorado 80203. The engagement partner for the audit was Joan Greenfield. The auditors issued an unqualified audit opinion on the financial statements.
CERTIFICATION AND SIGNATURE BLOCK
The undersigned, acting as duly authorized counsel for the respective parties identified below, hereby certify that the foregoing is a true, complete, and accurate index of the transaction documents submitted as Exhibit A to the Joint Voluntary Notice in CFIUS Case No. CFIUS-023-07-3841. To the best of each undersigned counsel's knowledge, information, and belief, all documents material to the Transaction that are required to be provided pursuant to 31 C.F.R. § 800.502 have been identified herein and submitted herewith, subject to the exceptions noted in this Exhibit A with respect to classified materials and ITAR-controlled technical data.
The parties reserve the right to supplement this index and to provide additional documents to the Committee if (a) additional agreements or amendments are executed by the parties prior to the closing of the Transaction, (b) the Committee or any member agency thereof requests additional documents or information in connection with its review, or (c) the parties otherwise determine that supplementation is appropriate.
For Halcyon Semiconductor Aktiengesellschaft and Halcyon US Holdings Inc.:
CALDERWOOD & HARKNESS LLP
By: ________
Name: Margaret "Peggy" Ashworth
Title: Of Counsel, National Security & CFIUS Practice
Address: 1750 K Street NW, Suite 800, Washington, DC 20006
Date: ________
CALDERWOOD & HARKNESS LLP
By: ________
Name: Beatrice Holloway
Title: Partner, Mergers & Acquisitions Practice
Address: 399 Park Avenue, 31st Floor, New York, NY 10022
Date: ________
For Marlowe Asset Management Photonics Inc. and the Selling Stockholders:
WETHERSFIELD & GALE LLP
By: ________
Name: Harrison Whitfield
Title: Partner, Government Contracts & National Security Practice
Address: 2000 Pennsylvania Avenue NW, Suite 600, Washington, DC 20006
Date: ________
WETHERSFIELD & GALE LLP
By: ________
Name: Sandra Niehaus
Title: Partner, Mergers & Acquisitions Practice
Address: 2000 Pennsylvania Avenue NW, Suite 600, Washington, DC 20006
Date: ________
Date: July 14, 2023
| CFIUS Case No.: | CFIUS-023-07-3841 |
| Date of Filing: | July 14, 2023 |
| Contact Counsel for the Acquiror: | Margaret "Peggy" Ashworth, Of Counsel, National Security & CFIUS Practice, Calderwood & Harkness LLP |
Beatrice Holloway, Partner, Mergers & Acquisitions Practice, Calderwood & Harkness LLP
Contact Counsel for the Target/Sellers:
Sandra Niehaus, Partner, Mergers & Acquisitions Practice, Wethersfield & Gale LLP
| Title: | Stock Purchase Agreement |
| Date: | June 10, 2023 |
| Parties: | Halcyon US Holdings Inc., a Delaware corporation (as "Purchaser"); the stockholders of Marlowe Asset Management Photonics Inc. identified on Schedule I thereto (as "Sellers"); Dr. Nathan Trevorrow, in his capacity as Sellers' Representative; and Marlowe Asset Management Photonics Inc., a Delaware corporation (the "Company") |
| Title: | Amendment No. 1 to Stock Purchase Agreement (Placeholder) |
| Date: | N/A |
| Title: | Certificate of Incorporation of Halcyon US Holdings Inc. |
| Date Filed: | June 5, 2023 |
| Filing Jurisdiction: | Secretary of State of the State of Delaware |
| Title: | Bylaws of Halcyon US Holdings Inc. |
| Date Adopted: | June 5, 2023 |
| Title: | Certificate of Good Standing — Halcyon US Holdings Inc. |
| Issuing Authority: | Secretary of State of the State of Delaware |
| Title: | Satzung (Articles of Association) of Halcyon Semiconductor Aktiengesellschaft |
| Certifying Authority: | Handelsregister (Commercial Register) of the Amtsgericht Dresden |
| Registration No.: | HRB 28416 |
| Title: | Handelsregisterauszug (Commercial Register Extract) — Halcyon Semiconductor Aktiengesellschaft |
| Issuing Authority: | Amtsgericht Dresden |
| Registration No.: | HRB 28416 |
| Title: | Certificate of Incorporation and Bylaws of Halcyon US Inc. |
| Filing Jurisdiction: | Secretary of State of the State of Delaware |
| Title: | Certificate of Incorporation of Marlowe Asset Management Photonics Inc. |
| Date Filed: | February 14, 2009 |
| Filing Jurisdiction: | Secretary of State of the State of Delaware |
| Title: | Amended and Restated Bylaws of Marlowe Asset Management Photonics Inc. |
| Title: | Certificate of Good Standing — Marlowe Asset Management Photonics Inc. |
| Issuing Authority: | Secretary of State of the State of Delaware |
| Title: | Amended and Restated Stockholders' Agreement |
| Parties: | Marlowe Asset Management Photonics Inc. and its stockholders |
| Stockholder | Ownership Percentage |
| Dr. Nathan Trevorrow & family trusts | 22.4% |
| Marissa Sung-Avila | 4.1% |
| Ridgecrest Ventures Fund III, L.P. | 31.7% |
| Cascadian Capital Partners Growth Fund II, L.P. | 24.3% |
| Employee option pool (vested/exercised) | 11.8% |
| Other angel investors | 5.7% |
| Total | 100.0% |
| Title: | Certificate of Limited Partnership — Ridgecrest Ventures Fund III, L.P. |
| Filing Jurisdiction: | Secretary of State of the State of Delaware |
| Title: | Amended and Restated Agreement of Limited Partnership — Ridgecrest Ventures Fund III, L.P. |
| Title: | Certificate of Formation — Ridgecrest Ventures Management LLC |
| Filing Jurisdiction: | Secretary of State of the State of Delaware |
| Title: | Certificate of Limited Partnership — Cascadian Capital Partners Growth Fund II, L.P. |
| Filing Jurisdiction: | Secretary of State of the State of Delaware |
| Title: | Amended and Restated Agreement of Limited Partnership — Cascadian Capital Partners Growth Fund II, L.P. |
| Title: | Certificate of Formation — Cascadian Capital Partners Management LLC |
| Filing Jurisdiction: | Secretary of State of the State of Delaware |
| Title: | Escrow Agreement |
| Parties: | Halcyon US Holdings Inc. (as Purchaser); Dr. Nathan Trevorrow (as Sellers' Representative); and Pinnacle Trust Company, N.A. (as Escrow Agent) |
| Escrow Agent Address: | 400 South LaSalle Street, Suite 1100, Chicago, Illinois 60605 |
| Title: | Sellers' Representative Agreement |
| Title: | Earnout Agreement | |
| Title: | Commitment Letter — Senior Secured Term Loan Facility | |
| Date: | June 8, 2023 | |
| Role | Institution | Address |
| Administrative Agent | Meridian National Bank | 277 Park Avenue, New York, NY 10172 |
| Co-Lead Arranger | Atlas Commercial Lending AG | Mainzer Landstraße 27, 60329 Frankfurt am Main, Germany |
| Co-Lead Arranger | Pacific Basin Credit Corp. | 555 California Street, Suite 3200, San Francisco, CA 94104 |
| Title: | Representations and Warranties Insurance Policy Binder | |
| Insurer: | Graystone Specialty Insurance Company | |
| Term | Detail | |
| Policy Number | GSI-RW-2023-04821 | |
| Policy Limit | $142,000,000 (10% of base purchase price) | |
| Retention (Deductible) | $14,200,000 (1% of base purchase price) | |
| Premium | $4,970,000 (3.5% of policy limit) | |
| Broker | Ashford Gallagher & Co. (New York) | |
| Broker Contact | Patricia Noonan | |
| Underwriter Contact | Daniel Voss | |
| Title: | Form of Non-Competition and Non-Solicitation Agreement | |
| Title: | Form of Post-Closing Employment Agreement — Dr. Nathan Trevorrow | |
| Position: | Founder and Chief Executive Officer, Marlowe Asset Management Photonics Inc. | |
| Title: | Form of Post-Closing Employment Agreement — Marissa Sung-Avila | |
| Position: | President and Chief Operating Officer, Marlowe Asset Management Photonics Inc. | |
| Title: | Form of Post-Closing Employment Agreement — Col. (Ret.) Bryce Hendrickson | |
| Position: | Vice President, Government Programs and Facility Security Officer, Marlowe Asset Management Photonics Inc. | |
| Title: | Financial Advisory Engagement Letter — Ashgrove Capital Group |
| Parties: | Halcyon Semiconductor Aktiengesellschaft (as Client) and Ashgrove Capital Group (as Financial Advisor) |
| Advisor Address: | 450 Lexington Avenue, 38th Floor, New York, New York 10017 |
| Title: | Financial Advisory Engagement Letter — Ridgeway Bancorp LLC |
| Parties: | Marlowe Asset Management Photonics Inc. and the selling stockholders (as Clients) and Ridgeway Bancorp LLC (as Financial Advisor) |
| Advisor Address: | 101 California Street, Suite 2800, San Francisco, California 94111 |
| Title: | DDTC Registration Statement — Marlowe Asset Management Photonics Inc. |
| Registration No.: | M-24817 |
| Title: | Facility Security Clearance Documentation — Marlowe Asset Management Photonics Inc. |
| CAGE Code: | 7VK92 |
| Clearance Level: | SECRET |
| Facility Security Officer: | Col. (Ret.) Bryce Hendrickson |
| Facility Address: | 9200 Innovation Boulevard, Albuquerque, New Mexico 87113 |
| Title: | Annual Report — Halcyon Semiconductor Aktiengesellschaft (Fiscal Year 2022) |
| Financial Metric | Amount |
| Revenue | €6.12 billion |
| EBITDA | €1.37 billion |
| Title: | Audited Financial Statements — Marlowe Asset Management Photonics Inc. (Fiscal Year 2022) |
| Financial Metric | Amount |
| Revenue | $287.4 million |
| EBITDA | $61.2 million |