SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported):
July 16, 1999
----------------------------------------
THERMO VISION CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 1-13391 04-3296594
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification Number)
incorporation or
organization)
8 East Forge Parkway
Franklin, Massachusetts 02038
(Address of principal executive offices) (Zip Code)
(781) 622-1000
(Registrant's telephone number
including area code)
<PAGE>
This Form 8-K contains forward-looking statements that involve a number of
risks and uncertainties. Important factors that could cause actual results to
differ materially from those indicated by such forward-looking statements are
set forth under the heading "Forward-looking Statements" in Exhibit 13 to Thermo
Vision Corporation's annual report on Form 10-K for the year ended January 2,
1999. These include risks and uncertainties relating to: technological change,
acquisition strategy, intense competition, potential adverse effect of
significant international sales, supplier and vendor relationships, intellectual
property rights, semiconductor industry volatility, and the potential impact of
the year 2000 on processing date-sensitive information.
Item 2. Acquisition or Disposition of Assets
On July 16, 1999, Thermo Vision Corporation (the "Company") acquired the
non-telecommunications thin-film optical filter business (the "Business") of
Corning-OCA Corporation from Corning-OCA Corporation (the "Seller"). The
Business manufactures optical filters and assemblies in the ultra-violet,
visible, NIR and IR portions of the electromagnetic spectrum. Common
applications for the manufactured filters are clinical chemistry, scientific
instruments, bar code scanners, color measurement, intrusion detection, laser
protection and process control equipment.
The acquisition was made pursuant to a Purchase and Sale Agreement dated
May 12, 1999 (as amended, the "Agreement"), between the Seller and the Company.
The purchase price for the Business was $4,000,000 of which $1,000,000 was paid
on May 12, 1999, the date of execution of the Agreement, with the $3,000,000
balance paid on the July 16 closing date. The purchase price paid was based on
the Company's determination of the fair market value of the Business, and the
terms and conditions of the Agreement were determined by arms-length negotiation
among the parties. The source of the purchase price was internal cash.
The Company has no present intention to use the assets of the Business for
purposes materially different from the purposes for which the assets were used
prior to the sale transaction. However, the Company does plan to move the assets
from their current location to the Company's principal place of business. In
addition, the Company will continue to review the Business, including the assets
acquired, operations, properties, policies, management and personnel and, upon
completion of this review, may develop additional or alternative plans or
proposals.
<PAGE>
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements of Business Acquired: Information meeting the
requirements of this Item 7(a) will be filed by amendment within the
time period permitted by Item 7(a)(4) of Form 8-K.
(b) Pro Forma Financial Information: Information meeting the
requirements of this Item 7(b) will be filed by amendment within the
time period permitted by Item 7(a)(4) of Form 8-K.
(c) Exhibits
2.1 Purchase and Sale Agreement, dated as of May 12, 1999, by and
between Thermo Vision Corporation and Corning OCA Corporation.
Pursuant to Item 601(b)(2) of Regulation S-K, schedules and
exhibits to this Agreement have been omitted. The Company
hereby undertakes to furnish supplementally a copy of such
schedules and exhibits to the Commission upon request.
2.2 Amendment Agreement dated July 15, 1999 between Thermo Vision
Corporation and Corning OCA Corporation.
99 Company's Press Release dated May 14, 1999.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, on this 28th day of July, 1999.
THERMO VISION CORPORATION
By: /s/ Theo Melas-Kyriazi
-------------------------------
Theo Melas-Kyriazi
Chief Financial Officer
Exhibit 2.1
Execution Version
PURCHASE AND SALE AGREEMENT
By and Between
THERMO VISION CORPORATION
and
CORNING OCA CORPORATION
<PAGE>
PURCHASE AND SALE AGREEMENT
INDEX
ARTICLE
I. DEFINITIONS
II. PURCHASE OF ASSETS
2.1 Assets to be Sold to Vision
2.2 Assets to be Retained
III. TREATMENT OF LIABILITIES
3.1 Assumed Liabilities
3.2 Retained Liabilities
IV. PURCHASE PRICE
4.1 Purchase Price
4.2 Payment of the Purchase Price
V. TAXES, BULK SALES
5.1 Transfer Taxes, Other Costs
5.2 Bulk Sales Act
VI. RELOCATION OF THE ASSETS
6.1 Relocation of the Assets
6.2 Access to COCA Facilities; Assistance by COCA
6.3 Damage and Refurbishment
VII. COCA REPRESENTATIONS AND WARRANTIES
7.1 Organization and Authorization
7.2 No Violation of Other Instruments
7.3 Powers of Attorney
7.4 Judgment Decrees or Orders in Restraint
of Business; Litigation
7.5 Approvals
7.6 Assets
7.7 Assumed Liabilities
7.8 Material Contracts
7.9 Labor Agreements and Actions
7.10 Employees
7.11 Permits and Licenses
7.12 No Government Investigation
7.13 Environmental and Operational Matters
7.14 Fees and Expenses
7.15 Material Relationships
7.16 Absence of Certain Changes, Events or Conditions
7.17 Disclosures
7.18 Limitation
<PAGE>
VIII. VISION REPRESENTATIONS AND WARRANTIES
8.1 Organization and Authorization
8.2 No Violation of Other Instruments
8.3 Approvals
8.4 No Government Investigation
8.5 No Broker
IX. EMPLOYEES AND EMPLOYEE BENEFITS
9.1 Effect on Employment
9.2 Employment of Business Employees
9.3 Investment Plan
X. INTELLECTUAL PROPERTY
10.1 Know-How and Patent License
10.2 Discontinuance of Use of COCA Name
10.3 Temporary COCA Trademark License
XI. INDEMNIFICATION
11.1 Indemnification by COCA
11.2 Indemnification by Vision
11.3 Procedure for Indemnification
11.4 Limitation of COCA's Indemnification
XII. FUTURE COOPERATION
12.1 Further Action
12.2 Future Assistance
XIII. DOCUMENTATION
13.1 COCA Documentation
13.2 Vision Documentation
XIV. OTHER COVENANTS AND MATTERS
14.1 Fees and Expenses
14.2 Public Announcements
14.3 Cooperation for Tax Purposes
14.4 Survival of Representations and Warranties
14.5 Non-Competition
XV. MISCELLANEOUS
15.1 Applicable Law
15.2 Venue
15.3 Legality
15.4 Amendment
15.5 Effect of Unenforceable Provisions
15.6 Waiver
15.7 Governmental Information
15.8 Disclaimer
15.9 Termination
15.10 Force Majeure
2
<PAGE>
15.11 Notices
15.12 Captions
15.13 Counterparts
15.14 Joint Effort
15.15 Entire Agreement
EXHIBITS and SCHEDULES
1.1 Assets
1.6 COCA Patents
7.10 Description of COCA Benefit Plans
9.2(a) Employees Signatory To Letter Agreements
9.2(b) Current COCA Personnel
10.1 Form of License Agreement
10.3 Form of Trademark Agreement
3
<PAGE>
PURCHASE AND SALE AGREEMENT
This AGREEMENT, dated as of May 12, 1999, between THERMO VISION
CORPORATION, a Delaware corporation ("Vision"), and CORNING OCA CORPORATION, a
Delaware corporation ("COCA").
WITNESSETH:
WHEREAS, COCA, through the use of certain of its assets, is presently
engaged, inter alia, in the business of the design, manufacture and distribution
of thin-film optical filters for Non-Telecommunications Applications (the
"Business").
WHEREAS, Vision desires to purchase and COCA desires to sell certain of
the Assets (hereinafter defined) relating to the Business.
NOW, THEREFORE, in consideration of the premises and mutual promises
contained in this Agreement and intending to be legally bound hereby, the
parties hereto agree as follows:
ARTICLE I - DEFINITIONS
The following terms when used in this Agreement (including the Recitals
and Schedules) shall have the meanings set forth below:
1.1 "Assets" shall mean the personal property and equipment, inventory,
supplies, permits and regulatory approvals (to the extent transferable), and
contracts listed on Exhibit 1.1. The term "Assets" shall not include any
1
<PAGE>
patents, patent applications, trademarks, trade names, copyrights, proprietary
information, know-how or other intellectual property rights, or any other assets
except as listed on Exhibit 1.1.
1.2 "Assumed Liabilities" shall have the meaning set forth in Section 3.1.
1.3 "Business" shall have the meaning set forth in the first recital
hereof.
1.4 "Closing Date" shall mean July 5, 1999.
1.5 "COCA" shall have the meaning set forth in the introductory paragraph
of this Agreement.
1.6 "COCA Know-How" shall mean any and all knowledge, experience and
state-of-the-art industrial techniques used by COCA as of the date hereof in the
commercial production of products sold by the Business and which is subject to
the license provided for in the agreement described in Section 11.1.
1.7 "COCA Patents" shall mean the patents (including all applications and
disclosures docketed therefor and all reissues, renewals, continuations,
extensions and divisions and foreign counterparts thereof) set forth in Schedule
1.6 and which are subject to the license provided for in the agreement described
in Section 11.1.
1.8 "Governmental Authority" shall mean any foreign, federal, state, local
or other governmental or administrative authority or agency.
2
<PAGE>
1.9 "License Agreement" shall have the meaning set forth in Section 10.1.
1.10 "Material Adverse Effect" shall mean a Material Adverse Effect on the
Business or a Material Adverse Effect on the Assets.
1.11 "Material Adverse Effect on the Business" shall mean a material
adverse effect on the financial condition or results of operation of the
Business taken as a whole.
1.12 "Material Adverse Effect on the Assets" shall mean a material adverse
effect on the value or usefulness of the Assets, taken as a whole, in the
operation of the Business as conducted by COCA as of the date hereof.
1.13 "Non-Telecommunications Applications" shall mean any activity that is
not a Telecommunications Applications.
1.14 "Party; Parties" shall mean either COCA, Vision, or both as the
context requires.
1.15 "Purchase Price" shall have the meaning set forth in Section 4.1.
1.16 "Retained Assets" shall have the meaning set forth in Section 2.2.
1.17 "Retained Liabilities" shall have the meaning set forth in Section
3.2.
1.18 "Telecommunications Applications" shall mean any application, use,
license, lease, sale or other transfer of any assets, equipment, products,
3
<PAGE>
processes, services, know-how, patents, data, information or technology to be
used in or related to the transmission or receipt of information or other data
in any medium, whether in the form of audio, visual, data or otherwise, by wire,
cable, fiber, or any other electrical, electromagnetic or optical means or
mechanisms in or through telecommunications networks installed or maintained by
or for telecommunications carriers or service providers.
1.19 "Telecommunications Market" shall mean the use, license, lease, sale
or other transfer of assets, equipment, products, processes, services, know-how,
patents, data, information or technology to be used in or related to the
transmission or receipt of information or other data in any medium, whether in
the form of audio, visual, data or otherwise, by wire, cable, fiber, radiowave,
microwave or any other electrical, electromagnetic or optical means or
mechanisms.
1.20 "Trademark Agreement" shall have the meaning set forth in Section
10.3.
1.21 "Transferred Employees" shall have the meaning set forth in Section
9.2(a).
ARTICLE II - PURCHASE OF ASSETS
Upon the terms and subject to the conditions herein stated and on the
basis of the representations, warranties and agreements herein contained:
2.1 Assets to be Sold to Vision. On the Closing Date COCA shall sell,
assign, transfer and deliver to Vision, and Vision shall thereupon purchase and
receive, the Assets.
4
<PAGE>
2.2 Assets to be Retained. Notwithstanding anything to the contrary above,
COCA shall retain all right, title and interest in and to, and exclude from
sale, assignment, transfer or delivery hereunder all assets of COCA and its
affiliates not listed in Exhibit 1.1.
ARTICLE III - TREATMENT OF LIABILITIES
Upon the terms, subject to the conditions and on the basis of the
representations, warranties and agreements hereinafter set forth:
3.1 Assumed Liabilities. As of the Closing Date COCA shall assign,
transfer and deliver to Vision, and Vision shall thereupon assume, and shall
thereafter be responsible for paying and satisfying or otherwise discharging in
full all liabilities and obligations of COCA relating to the Business and
associated with purchase orders for materials, supplies or products outstanding
as of the Closing Date and entered into by COCA prior to the Closing Date in the
ordinary course of business consistent with past practice (the "Assumed
Liabilities"). Vision and COCA specifically agree that Assumed Liabilities shall
include all liabilities or obligations arising out of or in connection with the
potential product and raw material contracts or purchase orders relating to an
order from Raytheon Corporation expected to be entered into by COCA and Raytheon
Corporation between the date of this Agreement and the Closing Date (the
"Raytheon Contracts").
3.2 Retained Liabilities. In connection with the Assets sold, transferred
and delivered to Vision hereunder, COCA shall retain, and shall be responsible
for paying and satisfying all liabilities associated with the ownership or
5
<PAGE>
operation of the Assets and the Business prior to the Closing Date, other that
the Assumed liabilities, including without limitation the following liabilities
and obligations relating to the Assets and the Business (the "Retained
Liabilities"):
(a) All foreign and United States local, state and federal taxes and
assessments (including any liabilities with respect to penalties or interest
thereon) related to the income earned from the operation of the Business or
ownership of the Assets on or prior to the date hereof.
(b) All accounts payable existing as of the Closing Date arising out of
operations of the Business conducted by COCA on or prior to the Closing Date;
provided, however, that Vision and COCA specifically agree that any accounts
payable arising in connection with the Raytheon Contracts shall not be retained
by COCA, but shall be assumed by Vision.
(d) All liabilities arising out of claims based on personal injury, death,
property or other damage arising out of, related to or connected with products
of the Business manufactured and sold by COCA prior to the Closing Date;
(e) All liabilities arising in respect of warranty claims with respect to
products manufactured and sold by COCA prior to the Closing Date;
(f) All liabilities arising under any pension or other benefit or welfare
plans maintained at any time by COCA or its affiliates for the benefit of COCA
employees or to which or in which COCA or its affiliates contribute or
participate, or relating to the termination of any such plan.
6
<PAGE>
(g) All liabilities arising in connection with litigation in respect of or
related to the Business resulting from events occurring prior to the Closing
Date (other than any such liabilities that may be asserted in respect of the
Raytheon Contracts), regardless of whether such claims have been brought prior
to the Closing Date.
(h) All claims, damages, obligations, expenses or other liabilities
arising from or out of (i) any violation arising prior to the Closing Date in
the conduct of the Business or use of the Assets of any applicable Federal,
state or local environmental laws and regulations ("Environmental Requirements")
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA") and the Resource Conservation
and Recovery Act of 1976 ("RCRA"); (ii) any investigation or inquiry by any
environmental government authority relating to the conduct of the Business or
use of the Assets prior to the Closing Date; (iii) any disposal of hazardous
substances or hazardous wastes arising out of the conduct of the Business or use
of the Assets prior to the Closing Date; (iv) any remedial obligations existing
prior to the Closing Date under any Environmental Requirements; (v) any
violation prior to the date hereof of any building, zoning, anti-pollution,
health, safety, or other law, ordinance, or regulation applicable to the Assets.
For purposes of the provisions in this section 7.15, the terms "Hazardous
Substance" and "Release" shall have the meanings specified in CERCLA, the terms
"Hazardous Waste" and "Disposal" shall have the meanings specified in RCRA;
provided, that, to the extent that applicable state laws establish meanings for
"Hazardous Substance", "Release", "Hazardous Waste" or "Disposal" that are
broader than that specified in CERCLA or RCRA, such broader meaning shall apply.
7
<PAGE>
ARTICLE IV - PURCHASE PRICE
4.1 Purchase Price. The total purchase price ("Purchase Price") for the
Assets and the Vision Assumed Liabilities to be sold or transferred pursuant to
this Agreement shall be Four Million Dollars ($4,000,000.00).
4.2 Payment of the Purchase Price. Coincident with the execution and
delivery of this Agreement, Vision shall pay to COCA One Million Dollars
($1,000,000.00) in immediately available funds by wire transfer to an account
designated by COCA. On the Closing Date, Vision shall pay to COCA Three Million
Dollars ($3,000,000.00) in immediately available funds by wire transfer to an
account designated by COCA.
ARTICLE V - TAXES, BULK SALES
5.1 Transfer Taxes, Other Costs. Vision shall pay all taxes, gains tax,
recording fees and other sales taxes and transfer costs, including any stamp
taxes, duties or taxes due or that may become due in respect of the sale,
transfer or delivery of the Assets, including, without limitation, all costs or
transfer taxes related to the Intellectual Property Rights which may be payable
with respect to the consummation of the transactions contemplated by this
Agreement.
5.2 Bulk Sales Act. Vision hereby waives the provisions of any Bulk Sales
Act or similar or corresponding law of any jurisdiction applicable to the Assets
provided, however, COCA hereby indemnifies and agrees to hold Vision and its
affiliates harmless against any loss, liability, damage or expense, including
attorneys' fees, resulting from any failure by COCA to comply with such Bulk
Sales act or similar or corresponding acts.
8
<PAGE>
ARTICLE VI - RELOCATION OF THE ASSETS
6.1 Relocation of the Assets. On the Closing Date, Vision shall commence
the dismantling, packaging, removal and transport of the Assets from the COCA
facilities. All dismantling, packaging, removal and transport shall be at the
sole cost and expense of Vision. Vision shall complete such dismantling,
packaging, removal and transport on or before July 26, 1999.
6.2 Access to COCA Facilities; Assistance by COCA. COCA shall grant to
Vision and its employees and subcontractors access to the COCA facilities in
which the Assets are currently located for the purposes of the relocation
activities contemplated in Section 6.1 during COCA's normal working hours or
during such other times as are agreed in advance by COCA management. COCA shall
provide Vision with reasonable assistance in completing the dismantling and
removal of the Assets from the COCA facilities as contemplated in Section 6.1.
6.3 Damage and Refurbishment. Vision shall not be responsible for any
refurbishment of COCA's facilities during or after the relocation activities
contemplated in Section 6.1; provided, however, that Vision shall leave all such
facilities broom clean upon completion of such relocation activities and shall
not damage such facilities (other than ordinary wear and tear) or unreasonably
disturb COCA's other operations or businesses at any time during the
accomplishment of such relocation activities.
9
<PAGE>
ARTICLE VII - COCA REPRESENTATIONS AND WARRANTIES
7.1 Organization and Authorization.
COCA represents and warrants to Vision that it: (i) is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware; (ii) has the full corporate power and authority to carry on its
businesses as now being conducted and to lease its properties; (iii) is
qualified in good standing as a foreign corporation in all jurisdictions where
the failure so to qualify would have a Material Adverse Effect on the Business;
and (iv) has full corporate power and authority to execute and deliver this
Agreement and other agreements and instruments to be executed and delivered by
it in connection herewith and to consummate the transactions contemplated hereby
and thereby.
7.2 No Violation of Other Instruments.
(a) COCA represents and warrants to Vision that the execution and delivery
of this Agreement do not, and the consummation of the transactions contemplated
hereby shall not: (i) violate any provision of the articles of incorporation and
by-laws of COCA; (ii) violate any provision of, or result in the termination of,
or the acceleration of, any obligation under mortgage, note, lien, lease,
franchise, license, permit, agreement, instrument, order, arbitration award,
judgment or decree to which COCA is a party and which would have a material
adverse effect on the consummation of the transactions contemplated herein or a
Material Adverse Effect on the Business; (iii) violate or conflict with any law
to which COCA is subject, restricting or prohibiting its ability to consummate
the transactions contemplated hereby; or (iv) impose any lien, mortgage, pledge,
encumbrance, restriction or charge on the Assets.
10
<PAGE>
(b) COCA, with respect to the Assets, represents and warrants to Vision
that it has good and marketable title free and clear of any liens, claims,
defects in title or other encumbrances..
7.3 Powers of Attorney. COCA represents and warrants to Vision that it has
no outstanding powers of attorney related to the Business or the Assets.
7.4 Judgment Decrees or Orders in Restraint of Business; Litigation. COCA
represents and warrants to Vision that: (a) to the best of its knowledge, there
are no actions, suits or proceedings or investigations pending or threatened
which might reasonably be expected either individually or in the aggregate to
result in any liability which would have a Material Adverse Effect on the
Business; and (b) it is not in default with respect to any order, writ,
injunction or decree of any court, federal, state, municipal or other
governmental department, commission, board, bureau or instrumentality, domestic
or foreign, relating to the Business.
7.5 Approvals. COCA represents and warrants to Vision that no approval,
consent, waiver or other order, action of or filing or registration with any
court or other governmental authority is required for the execution and delivery
by COCA of this Agreement and the other agreements and instruments executed or
to be executed and delivered by it in connection herewith or in connection with
the consummation of the transactions contemplated herein; provided, however,
that certain approvals, consents or waivers may be required for the Raytheon
Contracts to be assigned to and assumed by Vision.
11
<PAGE>
7.6 Assets. COCA represents and warrants to Vision that:
(a) the Assets constitute all of the assets deemed necessary by COCA for
the operation of the Business as conducted by COCA as of December 31, 1998 and
as of the date hereof, other than assets the lack of which would not have a
Material Adverse Effect on the Business;
(b) between January 29, 1999 and the date hereof, COCA has not impaired or
otherwise reduced the value of the Assets other than in the ordinary course of
its operation of the Business or other than such reductions that alone or in the
aggregate would not have a Material Adverse Effect on the Business.
7.7 Assumed Liabilities. COCA represents and warrants to Vision that:
(a) the Assumed Liabilities constitute all of the liabilities incurred by
COCA in the operation of the Business (other than the Retained Liabilities)
prior to the date hereof.
(b) between January 29, 1999 and the date hereof, COCA has not impaired or
otherwise increased the value of the Assumed Liabilities other than in the
ordinary course of its operation of the Business or other than such increases
that alone or in the aggregate would not have a Material Adverse Effect on the
Business
7.8 Material Contracts. COCA, with respect to the Assets it is selling
hereunder and the Business, represents and warrants to Vision that: (i) all
12
<PAGE>
contracts being assigned to Vision pursuant to this Agreement are in full force
and effect and valid obligations of the parties thereof; and neither COCA nor
any other party thereto is in material default under any such contract, or
agreement and no event, occurrence, condition or act exists which, with the
giving of notice or the lapse of time or both, would give rise to such a
material default; (ii) there has been no threatened cancellation thereof and
there are not any outstanding material disputes thereunder; (iii) no consent or
approval of any other party or parties thereto is required for the consummation
of the transactions contemplated in this Agreement, other than consents or
approvals that may be required for the Raytheon Contracts to be assigned to and
assumed by Vision; (c) except as disclosed in the schedules hereto, there are no
supplies, equipment or services materially necessary for the conduct of the
Business as conducted by COCA as of December 31, 1998 and as of the date hereof
which are not generally available under reasonable commercial terms.
7.9 Labor Agreements and Actions. COCA represents and warrants to Vision
that: (a) there are no controversies between COCA and its employees which might
reasonably be expected to have a Material Adverse Effect on the Business, or any
unresolved labor grievances or unfair labor practice or labor arbitration
proceedings pending or threatened relating to the Business that would have a
Material Adverse Effect on the Business; (b) COCA is not a party to or bound by
any collective bargaining agreements with respect to the Transferred Employees
and to the best of COCA's knowledge there are no union organizational efforts
presently being made or threatened with respect to such employees; and (c) COCA
does not have outstanding, and has not received, with respect to the Transferred
Employees within the twelve (12) months up to and including the date hereof any
13
<PAGE>
notice of any claim that COCA has not complied with any laws relating to the
employment of labor, including any provisions thereof relating to wages, hours,
collective bargaining, the payment of social security and similar taxes, equal
employment opportunity, employment discrimination and employment safety, or that
COCA is liable for any arrears of wages or any taxes or penalties for failure to
comply with any of the foregoing that would have a Material Adverse Effect.
7.10 Employees. COCA represents and warrants to Vision that Schedule 7.10
sets forth a description of the benefit plans existing as of the date hereof for
employees of the Business and that Schedule 9.2(b) sets forth the names and
positions of the COCA employees employed in the Business as of the date hereof
and that coincident herewith COCA has disclosed the annual compensation of such
employees to Vision.
7.11 Permits and Licenses. COCA represents and warrants to Vision that
with respect to the Assets and the Business, COCA (a) possessed all the permits,
licenses, franchises and other authorizations from any governmental authorities
necessary for the conduct of the Business as conducted by it as of the date
hereof, other than permits, licenses, franchises or other authorizations that
would not have a Material Adverse Effect on the Business, (b) COCA has not
received notice to the contrary and (c) except to the extent such would not have
a Material Adverse Effect on the Business, all such permits, licenses,
franchises and other authorizations are hereby transferred to Vision or shall be
transferred to Vision within a reasonable time after the date hereof.
7.12 No Government Investigation. COCA represents and warrants to Vision
to the best of its knowledge that there is no government investigation, request
for information or civil court action which would prohibit or prevent or claim
damages as a result of this transaction or the transactions contemplated hereby.
14
<PAGE>
7.13 Environmental and Operational Matters. COCA represents and warrants
to Vision that with respect to the Assets and the Business: (a) COCA is not in
violation of any applicable Federal, state or local environmental laws and
regulations ("Environmental Requirements") including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA") and the Resource Conservation and Recovery Act of 1976 ("RCRA") which
would have a Materially Adverse Effect, individually or in the aggregate, on the
Assets or the operation of the Business as a whole; (b) there is to the best of
its knowledge no pending or threatened investigation or inquiry by any
environmental government authority; (c) COCA is not subject to any remedial
obligations under any Environmental Requirements; (d) with respect to the
Business, COCA is not in violation of any building, zoning, anti-pollution,
health, safety, or other law, ordinance, or regulation applicable to the Assets
which would have a Materially Adverse Effect. For purposes of the provisions in
this section 7.13, the terms "Hazardous Substance" and "Release" shall have the
meanings specified in CERCLA, the term "Hazardous Waste" shall have the meanings
specified in RCRA; provided, that, to the extent that applicable state laws
establishing meanings for "Hazardous Substance", "Release" or "Hazardous Waste"
which is broader than that specified in CERCLA or RCRA, such broader meaning
shall apply.
15
<PAGE>
7.14 Fees and Expenses. COCA represents and warrants that COCA has not
employed a finder or broker in respect of this Agreement and the transactions
contemplated hereby.
7.15 Material Relationships. Except in connection with the employees of
the Business, COCA represents and warrants to Vision that to the best of its
knowledge, no supplier, customer, employee or person or organization whose
relationship is material to the Business has indicated in any manner an
intention to terminate or modify their relationship with COCA including, without
limitation, where applicable, an intention to change the prices or terms of sale
or purchase other than in the ordinary course of business, in its dealings with
COCA, and COCA has no reason to believe that any such relationship will not be
transferred to Vision on substantially the same terms COCA is now obtaining.
7.16 Absence of Certain Changes, Events or Conditions. COCA represents and
warrants to Vision that since December 31, 1998, COCA has operated the Business
in the ordinary course consistent with prior practice in all material respects
as if COCA was planning on continuing to operate the business subsequent to the
date hereof, and has not:
(a) suffered or incurred any material adverse change in the Assets
or in the financial condition or results of operations of the Business;
(b) suffered or incurred any material damage, destruction or loss
adversely affecting the Assets, whether or not such damage, destruction or loss
has been insured against;
16
<PAGE>
(c) made or granted any material increase in compensation payable or
to become payable to any of its employees or agents or any bonus payment or
similar arrangement to or with any of its employees or agents;
(d) other than in the ordinary and normal course of business, sold,
assigned leased or transferred any of the Assets, except inventory sold in the
ordinary and normal course of business;
(e) canceled or compromised any debts or claims;
(f) entered into any material transaction (other than as
contemplated by this Agreement) other than in the ordinary and normal course of
business (Vision and COCA specifically agreeing that the entry into the Raytheon
Contracts by COCA shall not be, or be deemed to be, a breach of this
representation and warranty);
(g) made any amendment or termination before normal termination date
of any material contract, agreement or license to which it is a party;
(h) made any agreement to do any of the foregoing.
7.17 Disclosures. The representations and warranties of COCA contained in
this Agreement or in any schedule, exhibit, certificate or other document
delivered pursuant to this Agreement or in connection with the transactions
contemplated herein do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained herein or therein not misleading. All information necessary to make
any such representations and warranties not misleading (including, without
17
<PAGE>
limitation, information as to any events or circumstances which might reasonably
be expected to have a material adverse effect on the future business operations,
prospects, properties or condition, financial or otherwise, of the Business has
been expressly disclosed in writing to Vision prior to the date hereof.
7.18 Limitation. No representations or warranties whatsoever, other than
the express representations and warranties set forth in this Article VII, are
made by COCA, and except to the extent of the foregoing, COCA HEREBY DISCLAIMS
ANY REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, AS TO THE CONDITION,
VALUE OR QUALITY OF THE TANGIBLE ASSETS AND PROPERTIES OF THE BUSINESS AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTY OF MERCHANTABILITY, USAGE
OR FITNESS FOR ANY PARTICULAR PURPOSE.
ARTICLE VIII - VISION REPRESENTATIONS AND WARRANTIES
8.1 Organization and Authorization.
Vision represents and warrants to COCA that it: (a) is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware; (b) has the full corporate power and authority to carry on its
business as now being conducted; (c) is qualified in good standing as a foreign
corporation in all jurisdictions where the failure so to qualify would have a
material adverse effect on the consummation of the transactions contemplated
herein; and (d) has full corporate power and authority to execute and deliver
this Agreement and other agreements and instruments to be executed and delivered
by it in connection herewith and to consummate the transactions contemplated
hereby and thereby, subject however to the consents and approvals described in
Section 8.3, below.
18
<PAGE>
8.2 No Violation of Other Instruments. Vision represents and warrants to
COCA that the execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby shall not: (a) violate any
provision of the articles of incorporation and by-laws of Vision; (b) violate
any provision of, or result in the termination of, or the acceleration of, any
obligation under mortgage, note, lien, lease, franchise, license, permit,
agreement, instrument, order, arbitration award, judgment or decree to which
Vision is a party; and (c) except with respect to the government approvals set
forth in Section 8.3, violate or conflict with any law to which Vision is
subject, restricting or prohibiting its ability to consummate the transactions
contemplated hereby.
8.3 Approvals. Vision represents and warrants to COCA that to the best of
Vision's knowledge, no approval, consent, waiver or other order, action of or
filing or registration with any court or other governmental authority is
required for the execution and delivery by Vision of this Agreement and the
other agreements and instruments executed or to be executed and delivered by it
in connection herewith.
8.4 No Government Investigation. Vision represents and warrants to COCA
that there is no government investigation, request for information or civil
court action which would prohibit or prevent or claim damages as a result of
this transaction or the transactions contemplated hereby.
8.5 No Broker. Vision represents and warrants to COCA that no agent or
broker or other persons acting pursuant to authority given by Vision is entitled
to any commission or finder's fee in connection with the transaction
contemplated by this Agreement.
19
<PAGE>
ARTICLE IX - EMPLOYEES AND EMPLOYEE BENEFITS
9.1 Effect on Employment. Except as provided in Section 9.2, COCA and
Vision agree that the transactions contemplated by this Agreement are not
intended to affect the employment of the personnel of the Business.
9.2 Employment of Business Employees.
(a) As of the Closing Date, Vision shall assume all obligations existing
under the letter agreements dated as of March 15, 1999, between COCA and those
employees identified on Schedule 9.2(a).
(b) Immediately upon the execution and delivery of this Agreement, Vision
shall offer employment to all other current employees of the Business as set
forth on Schedule 9.2(b) (excluding COCA employees not intended to be
transferred as identified on such Schedule) and such employment shall be on
terms that include a base salary, corporate performance bonus and benefits
substantially similar to, if not better than, those which each individual
employee enjoyed with the Business as of the date hereof (including credit for
the employees' years of service with COCA for the purpose of determining
eligibility, and with such other benefits as are applicable to Vision's
employees generally). Such base salary, corporate performance bonus and benefits
shall continue for a minimum period ending on the earlier of the transferred
employees termination of employment or one (1) year from the date hereof. All
employees who accept Vision's offer of employment are herein referred to as
"Transferred Employees".
20
<PAGE>
(c) Vision shall be solely responsible for all termination benefits, costs
and charges of any nature arising out of or incurred after the Closing Date
which are payable subsequent to the Closing Date and which relate to the
Transferred Employees; provided, however, that if any Transferred Employee is
terminated by Vision within one (1) year from the date hereof, such termination
benefits, costs and charges shall be in at least the amounts and kind which COCA
would have paid if it had taken the same action before date hereof (including
the amounts required by law, plus any additional amounts customarily paid by
COCA). Vision shall indemnify, defend and hold COCA harmless against any and all
liabilities, damages, claims, costs and expenses (including reasonable
attorneys' fees and accounting fees) incurred by COCA in connection with any
claim made by or on behalf of any or all of the Transferred Employees which
Vision employs or is required to employ pursuant to this Section 9.2 alleging
constructive termination as a result of consummation of the transactions
contemplated hereby or alleging any wrongful actions taken by Vision after the
Closing Date.
(d) The interest of the Transferred Employees (who were formerly employees
of COCA at the date hereof) in the plans and benefits set forth on Schedule 7.10
shall cease as of the date they become Vision's employees except to the extent:
(i) otherwise provided by statute or by such plans; (ii) an employee's interest
is vested; or (iii) benefits have been earned, but have not been paid as of the
date hereof. Benefit payments shall continue under these plans (including
"extended benefits" provided by the plans, if any) for continuing claims
resulting from disability or loss incurred and made prior to the date hereof.
21
<PAGE>
Vision shall substitute for such plans its own plans which have been disclosed
to COCA and are listed on Schedule 9.2(d), provided however that service with
COCA shall be credited in determining eligibility of the Transferred Employees
which Vision employs or is required to employ pursuant to this Section 9.2 for
any such benefits including any pension or profit sharing plans of Vision.
9.3 Investment Plan. COCA agrees to vest fully under the COCA Investment
Plan for employees the accounts of all Transferred Employees in the United
States who are participants in such COCA Investment Plan and to take such other
and further action (including, without limitation, the amendment of such COCA
Investment Plan as may be necessary or required by the provisions thereof or by
the Internal Revenue Service) to accomplish the foregoing. COCA will, upon
written request of the Transferred Employee who is a participant in the COCA
Investment Plan, either: (a) direct rollover of such portion of the account of
each participating eligible employee as may be legally permissible to the
appropriate investment plan of Vision, if any, provided that such employee shall
be fully vested in the account so transferred; or (b) distribute such account to
such employee in a manner permitted by the COCA Investment Plan for such
employees.
ARTICLE X - INTELLECTUAL PROPERTY
10.1 Know-How and Patent License. Coincident herewith, COCA and Vision
shall enter into a patent and technology license, substantially in the form of
Exhibit 10.1 hereto (the "License Agreement"), wherein COCA grants to Vision and
its subsidiaries a fully-paid, non-revocable, non-exclusive, worldwide license
to use the COCA Know-How and COCA Patents for the manufacture, use and sale by
Vision or its subsidiaries of thin-film optical filters for
Non-Telecommunications Applications.
22
<PAGE>
10.2 Discontinuance of Use of COCA Name. Except as set forth in the
temporary COCA trademark license, substantially in the form set forth in Exhibit
10.2, Vision shall eliminate the use and designation of "CORNING," "OCA" and
such other designations, if any, indicating any affiliation with COCA, Corning
or any of their subsidiaries or affiliates and all other trademarks and trade
names used by COCA, Corning or any of their subsidiaries or affiliates, and
shall take all actions necessary to accomplish such elimination, including
without limitation the following: (a) with respect to all stationery and
contracts, including without limitation purchase order and customer agreements,
Vision shall eliminate immediately after the date hereof any use of the
designation "Corning OCA Corporation" and any other COCA designation indicating
affiliation with COCA, Corning or any of their subsidiaries or affiliates; (b)
within thirty (30) business days of the date hereof, Vision shall use reasonable
measures to notify in writing customers and suppliers of the Business (and upon
COCA's request, COCA's banks) that the Business has been acquired by Vision from
COCA; and (c) from and after the date hereof, Vision shall not use such marks or
designations or otherwise affirmatively indicate after the date hereof that the
Business continues to be owned or operated by COCA or Corning. COCA may, at its
discretion, send similar written notice to such customers, suppliers and banks.
10.3 Temporary COCA Trademark License. Coincident herewith, COCA and
Vision shall enter into a temporary COCA trademark license, substantially in the
form of Exhibit 10.3 hereto (the "Trademark Agreement"), to provide Vision with
the right to use the tradenames and trademarks identified therein for the
limited purposes identified therein relating to Non-Telecommunications
Applications and for the limited period of time identified therein.
23
<PAGE>
ARTICLE XI - INDEMNIFICATION
11.1 Indemnification by COCA. COCA shall indemnify and hold Vision
harmless from and against any and all claims, liabilities, losses, damages,
costs, expenses, including reasonable counsel fees but net of any tax benefits
received by Vision, on account of such tax losses, such tax benefits to be
deemed to be 30% of the amount of such losses if deductible by Vision's
consolidated income before tax, arising out of: (a) any material failure or
breach by COCA of any representation, warranty, covenant, obligation or
undertaking (as the same are modified by the Schedules or Exhibits to this
Agreement or any certificate or any document delivered to Vision pursuant to
this Agreement), made by COCA in this Agreement; or (b) the Retained
Liabilities.
11.2 Indemnification by Vision. Vision shall indemnify and hold COCA and
its directors, officers, employees and affiliates harmless from and against any
and all claims, liabilities, losses, damages, costs, expenses, including
reasonable counsel fees, but net of any tax benefits received by COCA, on
account of such losses, such tax benefits to be deemed to be 30% of the amount
of such losses if deductible from COCA's consolidation income before tax,
arising out of: (a) any material failure or breach by Vision of any
representation, warranty, covenant, obligation or undertaking made by Vision in
this Agreement (as the same may be modified by the Schedules or Exhibits to this
Agreement or any certificate or any document delivered to COCA pursuant to this
Agreement); (b) the Assumed Liabilities; and (c) the conduct of the Business or
use of the Assets on or after the Closing Date.
24
<PAGE>
11.3 Procedure for Indemnification.
(a) All items covered by Sections 11.1 and 11.2 are referred to herein as
"Indemnified Claims." An indemnified party hereunder shall promptly notify the
indemnifying party in writing of the assertion of any claim asserted against the
indemnified party which might give rise to an Indemnified Claim against the
indemnifying party stating the nature and basis of such claim and, if possible,
the amount thereof. Except as set forth herein, and expressly subject to
subsection (c) below, the indemnified party shall not pay or provide for the
payment or settlement or discharge of any such claim, for a period of thirty
days after the date such written notice was given to the indemnifying party, but
thereafter may do so together with all costs and expenses incident thereto,
unless within such thirty-day period the indemnifying party shall have provided
the indemnified party with notice and evidence to the indemnified party's
reasonable satisfaction that the indemnifying party reasonably disputes such
claim or will otherwise discharge or satisfy such claim.
(b) In the event that any action, suit or proceeding is brought against an
indemnified party with respect to which an indemnifying party may have liability
under the indemnity agreement contained in this Article XI, the action, suit or
proceeding shall be defended (including all proceedings on appeal or for review,
which counsel for defendant shall reasonably deem appropriate) by the
indemnifying party by counsel of its choice, provided the indemnifying party
agrees in writing to indemnify and hold the indemnified party harmless for the
25
<PAGE>
full amount of any loss or judgment it may sustain as a result of such action,
suit or proceeding. If the indemnifying party declines to defend such action,
suit or proceeding, then the indemnified party shall so defend and appoint
counsel of its choice to do so. The indemnified party, if the indemnifying party
defends and the indemnifying party, if the indemnified party defends, the
indemnified party defends shall have the right to be represented by an advisory
counsel and accountants, at its own expense, and such party shall be kept fully
informed of such action, suit or proceeding at all stages thereof whether or not
such party is so represented. Each party shall make available to the other
party, its attorneys and accountants all books and records relating to such
proceedings or litigation and the parties hereto agree to render to each other
such assistance as they may reasonably require of each other in order to ensure
the proper and adequate defense of any such action, suit or proceeding.
(c) An indemnified party shall not make any settlement of any claims which
might give rise to an Indemnified Claim under the indemnity agreement contained
in this Article XI without the written consent of the indemnifying party,
provided that such consent shall not be unreasonably withheld and further
provided, that notwithstanding the foregoing, Vision may immediately cause to be
paid or discharged any asserted claim the non-payment of which would have an
immediate adverse impact on Vision or the Business and any claim which the
indemnifying party has not disputed within thirty (30) days of notice as
provided above.
(d) The rights of indemnification contained in this Article XI shall not
be deemed to be the exclusive remedy of the parties hereto and such rights shall
be in addition to any other rights or remedies which any party hereto may have
at law or equity with respect to a default or breach by any other party under
this Agreement.
26
<PAGE>
11.4 Limitation of COCA's Indemnification. Notwithstanding the
indemnification by COCA provided in Section 11.1, such indemnification by COCA
shall apply only if the amount of such indemnification exceeds $500,000 in the
aggregate and no loss which involves less than $50,000 shall be the basis for a
claim of indemnification under Section 11.1 or shall be included in determining
whether the amount of such indemnification exceeds $500,000.
ARTICLE XII - FUTURE COOPERATION
12.1 Further Action. After the date of this Agreement, each party hereto
shall, at its own expense, take such of the actions to execute, acknowledge and
deliver all such acts, deeds, assignments, transfers, conveyances, powers of
attorney, and assurances as may be reasonably required to perfect the
transactions contemplated herein and to fulfill and implement the terms of this
Agreement or realize the benefits intended to be afforded hereby and to perfect
Vision's respective rights, title and interest in the Assets to be acquired by
Vision hereunder. From the date of this Agreement through and including the
Closing Date, COCA shall operate the Business and maintain the Assets in the
ordinary course of business consistent with prior practice, except as shall be
agreed by Vision. During the period from the date hereof and the Closing Date,
COCA shall continue insurance on the Assets consistent with past practice. In
the event that any Asset is lost or materially damaged due to act of God or
other catastrophe, then COCA shall pay to Vision the fair market value of the
lost or damaged assets, or portion thereof; provided,b that such payment shall
not exceed the Purchase Price.
27
<PAGE>
12.2 Future Assistance. Coincident with the execution hereof, COCA shall
make available to Vision technology consulting services, providing for (i)
consulting services of certain key COCA technologists sourced from COCA's
ordinary internal resources for a period of up to twenty (20) full person days
and reasonable additional telephone consultations, each over a one year period
following the Closing Date, at no cost to Vision, for the purpose of
facilitating the transition of the Business from COCA to Vision, and (ii)
additional consulting services agreed by COCA and Vision during such one year
period, for which Vision shall pay to COCA, for each person-day of such
services, Six Hundred Dollars ($600.00) for technicians, One Thousand Two
Hundred Dollars ($1,200.00) for engineers, and One Thousand Six Hundred Dollars
($1,600.00) for scientists (Ph.D. and above), plus the reasonable out-of-pocket
expenses incurred by such employee in providing such services.
28
<PAGE>
ARTICLE XIII -DOCUMENTATION
13.1 COCA Documentation. On the Closing Date, COCA shall provide to
Vision:
(1) Resolutions of COCA's Board of Directors, certified by its Secretary
or Assistant Secretary, authorizing the execution and delivery of
this Agreement and all related documents and the consummation of the
transactions contemplated hereby and thereby;
(2) A certificate from the Secretary or Assistant Secretary, or other
appropriate officer of COCA as to the incumbency and signatures of
officers;
(3) A certificate from the Chairman, or other appropriate officer of
COCA, to the effect that COCA's representations and warranties given
in this Agreement are true, accurate and complete as of the Closing
Date;
(4) An executed Assignment and Bill of Sale from COCA covering the
respective Assets described in Section II which COCA is selling
under this Agreement and such other documents reasonably required by
Vision for the transfer to Vision of the Assets.
(5) The executed license agreement described in Section 10.1.
(6) The temporary COCA trademark license agreement described in Section
10.3.
29
<PAGE>
(7) an opinion of COCA's internal legal counsel, to the effect that: (i)
COCA is a corporation validly existing under the law of the State of
Delaware; (ii) COCA has full corporate power and authority to
execute and deliver this Agreement; (iii) such execution and
delivery and the consummation of the transactions hereunder shall
not violate COCA's articles of incorporation or by-laws; (iv) this
Agreement when duly executed and delivered, assuming due
authorization, execution and delivery by Vision, constitutes a valid
and binding obligation of COCA enforceable against it in accordance
with its terms, subject however to bankruptcy, insolvency and
similar laws affecting the rights of creditors generally and to
equitable principles; (v) neither the execution, delivery nor
performance of the Agreement will, with or without the giving of
notice or the passage of time, or both, conflict with, result in a
default or loss of rights under, or result in the creation of any
lien, charge or encumbrance on the Assets pursuant to, any law, rule
or regulation applicable to COCA, any provision of COCA's
Certificate of Incorporation, as amended, or By-Laws, as amended,
or, to the knowledge of such counsel, any mortgage, lease, license,
understanding, order, judgment, decree or agreement to which COCA is
a party or by which it is bound; (vi) except as set forth in the
exhibits and schedules to the Agreement and documents delivered in
connection therewith, there are to the knowledge of such counsel, no
suits, actions or legal, administrative, arbitration or other
proceedings or governmental investigations pending, or threatened
against, or affecting the Business or the Assets before or by any
30
<PAGE>
court, administrative agency or body or governmental authority; and
(vii) to the knowledge of such counsel, COCA is not in material
default with respect to any judgment, order, writ, injunction,
decree, rule or regulation of any court or governmental authority,
domestic or foreign, affecting or otherwise relating to the Assets.
13.2 Vision Documentation. On the Closing Date, Vision shall provide
to COCA:
(1) Documentary evidence, certified by Vision's Secretary, establishing
the authorization of Vision's officers to execute and deliver this
Agreement and all related documents and the consummation of the
transactions contemplated hereby and thereby;
(2) A certificate from the Secretary of Vision as to the incumbency and
signatures of officers;
(3) A certificate from the President, or other appropriate officer of
Vision, to the effect that Vision's representations and warranties
given in this Agreement are true, accurate and complete as of the
Closing Date
(4) Documents of assumption setting forth Vision's assumption of
obligations for contracts assigned to it.
(5) The executed license agreement described in Section 10.1.
(6) The Purchase Price as set forth in Article IV.
31
<PAGE>
(7) The opinion of counsel to Vision to the effect that: (i) it is a
corporation validly existing under the laws of the State of
Delaware; (ii) it has the power and authority to execute and deliver
this Agreement; (iii) such execution and delivery and the
consummation of the transactions contemplated hereunder, including
without limitation the assumption of liabilities, shall not violate
its articles of incorporation or by-laws; and (iv) this Agreement
when duly executed and delivered, assuming due authorization,
execution and delivery by COCA constitutes its valid and binding
obligation enforceable against it in accordance with its terms,
subject however to bankruptcy, insolvency, and similar laws
affecting the rights of creditors generally and to equitable
principles; (v) neither the execution, delivery nor performance of
the Agreement will, with or without the giving of notice or the
passage of time, or both, conflict with, result in a default or loss
of rights under, any law, rule or regulation applicable to it, any
provision of Vision's Certificate of Incorporation, as amended, or
By-Laws, as amended, or, to the knowledge of such counsel, any
mortgage, lease, license, understanding, order, judgment, decree or
agreement to which Vision is a party or by which it is bound; (vi)
except as set forth in the exhibits and schedules to the Agreement
and documents delivered in connection therewith or as otherwise
disclosed to COCA, there are to the knowledge of such counsel, no
suits, actions or legal, administrative, arbitration or other
proceedings or governmental investigations pending, or threatened
32
<PAGE>
against, or affecting Vision or its Assets before or by any court,
administrative agency or body or governmental authority that would
materially affect Vision's ability to perform its obligation under
this Agreement; and (vii) to the knowledge of such counsel, Vision
is not in material default with respect to any judgment, order writ,
injunction, decree, rule or regulation of any court or governmental
authority, domestic or foreign that would materially affect Vision's
ability to perform its obligation under this Agreement.
ARTICLE XIV - OTHER COVENANTS AND MATTERS
14.1 Fees and Expenses. Each party shall bear its own expenses including
without limitation, fees for attorneys, auditors, investment bankers and
accountants that arise in connection with the negotiation, consummation or
performance of this Agreement.
14.2 Public Announcements. Neither party, without the consent of the
other, shall: (1) make any announcements to the employees of the Business; (2)
make any public announcement; (3) issue any press release; or (4) make
disclosure to any third party, except to its respective counsel, accountants and
other experts concerning this Agreement or the transaction contemplated hereby
except as may be required by law, regulation or stock exchange rule..
14.3 Cooperation for Tax Purposes. In connection with preparation of any
tax returns required to be filed by COCA or the Business, any audit examinations
by any governmental taxing authorities, administrative or judicial proceedings
resulting therefrom, COCA and Vision shall use reasonable best efforts to
cooperate with each other including but not limited to making available books
33
<PAGE>
and records of accounts, and other materials necessary or helpful for the
preparation and returns or defense against assertions of any taxing authority as
to the imposition of any taxes. Vision shall not compromise to settle any tax
deficiency related to the Business which could be asserted against COCA without
the prior written consent of COCA, which consent shall not be unreasonably
withheld.
14.4 Survival of Representations and Warranties. No claim for any breach
of the representations and warranties contained in Articles VII and VIII of this
Agreement may be asserted later than the first anniversary of the date hereof,
except that claims pursuant to a breach of the environmental warranty set forth
in Section 7.12 may be made at any time prior to the fifth anniversary of the
date hereof. No claim may be made for a breach of an express representation or
warranty which was known by Vision to be false at the time made. Any claim
asserted must be in writing and directed to the proper parties as set forth in
Section 15.11.
14.5 Non-Competition.
(a) For a period of five (5) years after the Closing Date, (i) Vision
shall not, and shall cause its affiliates not to, use the Assets in any business
that would be in direct or indirect competition with COCA or any of its
affiliates in the Telecommunications Market, and (ii) COCA shall not, and shall
cause its affiliates not to, compete with Vision in any business being conducted
by COCA in the Business as of the Closing Date.
(b) For a period of three (3) years after the Closing Date, neither Vision
nor COCA shall solicit for hire any employees of the other; provided, however,
that the foregoing covenant shall not be deemed to prohibit either party from
making general employment solicitations in its normal course of employment
advertising not directed at any particular individual of the other party.
34
<PAGE>
ARTICLE XV- MISCELLANEOUS
15.1 Applicable Law. This Agreement shall be construed in accordance with
the laws of the State of New York and the United States of America, applicable
to contracts relating to the same subject matter hereof entered into and fully
performed within said State, notwithstanding any choice of law principles to the
contrary.
15.2 Venue. The parties shall use their best efforts to resolve by
negotiation any dispute, controversy or claim which may arise in connection with
this Agreement.
15.3 Legality. The Parties each declare that, to the best of their
respective knowledge, as of the date first above written there are no laws or
regulations in effect that materially limit or restrict their ability to fully
perform their obligations under this Agreement.
15.4 Amendment. This Agreement may not be modified or amended except by a
writing duly signed by the authorized representatives of both Parties.
15.5 Effect of Unenforceable Provisions. All provisions of this Agreement
shall be severable for purposes of enforcement. If any provision of this
Agreement is invalid, ruled illegal by any court of competent jurisdiction, or
unenforceable under present or future laws effective during the term hereof,
then and in that event, it is the intention of the parties hereto that the
35
<PAGE>
remainder of this Agreement shall not be affected thereby, and it is also the
intention of the parties that in lieu of each of such provision which is
invalid, illegal or unenforceable, there be added as part of this Agreement a
provision which shall be as similar in terms of such invalid, illegal or
unenforceable provision, and that deals equitably with the intended benefits and
obligations of the parties.
15.6 Waiver. No failure or delay on the part of a Party in exercising any
right, power or remedy hereunder shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy
hereunder. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law or available at equity.
15.7 Governmental Information. Nothing in this Agreement shall authorize
the disclosure of, or access to, classified or restricted information, material
or know-how of the Government of the United States of America to persons not
authorized or licensed to disclose or receive such classified or restricted
information. Vision agrees to abide by all applicable legal or governmental
restrictions or conditions imposed on the export or re-export of technical
information.
15.8 Disclaimer. Nothing in this Agreement shall be construed as: (a) an
assumption by COCA of any obligation to increase the consolidated sales or
profits of Vision; (b) intending to confer any rights or remedies of employment
on COCA employees; or (c) the delegation of any function of authority of Vision
to COCA.
36
<PAGE>
15.9 Termination. If, prior to the Closing Date, either party hereto shall
fail to comply substantially with any material term or condition of this
Agreement, or shall commit a material breach of any covenant contained within
this Agreement, and the party not in default provides written notice to the
defaulting party of such failure to comply or such breach, the defaulting party
shall attempt to remedy such breach on or before the Closing Date or within a
reasonable period of time after the Closing Date. If such failure to comply or
such breach is not cured within such time period, the party not in default shall
have the right to terminate this Agreement by giving written notice of such
termination and this Agreement shall terminate as of the date of such notice
with no further action being required by the terminating party. The termination
right provided for in this paragraph shall not affect any other legal or
equitable remedies which may be available to the non-defaulting party and shall
not affect obligations under this Agreement which have risen prior to such
termination.
15.10 Force Majeure. If the performance of this Agreement or any
obligation under it is prevented, restricted or interfered with by reason of
fire, explosion, strike, lockout, labor dispute, casualty, accident, lack or
failure in part or in whole of transportation facilities, sources of supply and
labor, materials, power or supplies; or war, revolution, civil commotion, acts
of public enemies; or any law, order, proclamation, regulation, ordinance,
demand or requirement of any government or subdivision, authority or
representative of any such government or delay or failure of a government
authority to issue, export or import licenses or approvals or any other
conditions or acts whatsoever whether similar or dissimilar to those enumerated
which are beyond the reasonable control of the parties, the party so affected by
37
<PAGE>
giving prompt notice to the other party shall be excused from such performance
to the extent of such prevention, restriction or interference; provided that the
party so affected uses its best efforts to remedy or remove such causes of
nonperformance and resumes performance hereunder whenever such causes are
removed.
15.11 Notices. All notices and other communications provided for hereunder
shall be given in writing and shall be sent to the principal office of Vision or
COCA set forth below.
(a) All notices and other communications to COCA shall be sent by hand
delivery, certified or registered mail, or by electronic facsimile transmission
confirmed by certified or registered mail with postage prepaid (return receipt
requested) to:
Corning OCA Corporation
111/170 Locke Drive
Marlborough, MA 01752
Attention: Chairman
Facsimile Number: (508) 804-6540
(b) All notices and other communications to Vision shall be sent by hand
delivery, certified or registered mail, or by electronic facsimile transmission
confirmed by certified or registered mail with postage prepaid (return receipt
requested) to:
Thermo Vision Corporation
8 East Forge Parkway
Franklin, MA 02038
Attention: President
Facsimile Number: (508) 553-5001
or, as to either party, at such other address as shall be designated by such
party in a written notice to the other party. All such notices and
38
<PAGE>
communications shall be effective either: (a) when actually delivered by hand;
(b) ten (10) days after being deposited in the mail; (c) when transmitted by
electronic facsimile, the following business day.
15.12 Captions. Article and section headings in this Agreement are
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
15.13 Counterparts. This Agreement may be executed in any number of
counterparts by the Parties hereto in separate counterparts, each of which when
so executed and delivered shall be deemed to be an original and all of which
counterparts of this Agreement taken together shall constitute but one and the
same instrument.
15.14 Joint Effort. Preparation of this Agreement has been a joint effort
of both COCA and Vision and this Agreement shall not be construed more severely
against either COCA or Vision.
15.15 Entire Agreement. This Agreement, the License Agreement and the
Trademark Agreement constitute the entire agreement between COCA and Vision with
respect to the subject matter hereof and supersede all prior discussions,
negotiations and agreements between COCA and Vision.
[the remainder of this page intentionally left blank]
39
<PAGE>
IN WITNESS WHEREOF, each party has caused this Agreement to be executed on its
behalf by an officer thereunto duly authorized, all as of the day and year first
above written.
THERMO VISION CORPORATION CORNING OCA CORPORATION
By: /s/ Kristine Stotz Landgon By: /s/ James R. Cooke
--------------------------- ------------------------------
Name: Kristine Stotz Landgon Name: James R. Cooke
Title: President and Chief Title: Chairman
Executive Officer
40
<PAGE>
EXHIBIT 1.1
ASSETS
1. All purchase orders for materials, supplies or products relating to the
Business outstanding as of the Closing Date and entered into by COCA as
purchaser or seller prior to the Closing Date in the ordinary course of
business consistent with past practice.
2. All assets specifically identified on the attached list.
3. All work in process and finished goods inventories in COCA's possession
relating to the Business as of the Closing Date.
4. All raw material inventories in COCA's posession relating solely to the
Business as of the Closing Date.
5. Raw material inventories in COCA's possession relating both to the
Business and to other COCA operations as of the Closing Date in amounts
equal to the lesser of (a) amounts sufficient to operate the Business for
three (3) months or (b) all such inventory in COCA's possession.
41
<PAGE>
EXHIBIT 1.6
COCA PATENTS
(1) U.S. Patent 5,525,199, filed September 2, 1994, entitled "Low
Pressure Reactive Magnetron Sputtering Apparatus and Method";
(2) U.S. Patent 5,851,365, filed June 18, 1991, entitled "Low Pressure
Reactive Magnetron Sputtering Apparatus and Method";
(3) U.S. Patent 5,656,138, filed November 13, 1991, entitled "Very High
Vacuum Magnetron Sputtering Method and Apparatus for Precision
Optical Coatings".
42
Exhibit 2.2
EXECUTION VERSION
AMENDMENT TO THE
PURCHASE AND SALE AGREEMENT
This Agreement, dated as of July 15, 1999 (the "Amendment"), is by and
between THERMO VISION CORPORATION, a Delaware corporation ("Vision"), and
CORNING OCA CORPORATION, a Delaware corporation ("COCA").
WITNESSETH
WHEREAS, Vision and COCA are parties to a Purchase and Sale Agreement,
dated as of May 12, 1999 (the "Purchase and Sale Agreement"); and
WHEREAS, Vision and COCA desire to amend the Purchase and Sale Agreement
as provided in this Amendment.
NOW THEREFORE, in consideration of the premises and mutual promises
contained in this Agreement and intending to be legally bound hereby, the
parties hereto agree as follows:
1. The definition of "Assets" as provided in Section 1.1 of the Purchase and
Sale Agreement is hereby amended as follows:
a. to delete from such definition the asset designated "CMM 111 Locke
Drive"; and
b. to add to such definition all of the assets listed on Exhibit 1.1
hereto.
2. Schedules 9.2(a) and 9.2(b) to the Purchase and Sale Agreement are hereby
amended and restated in their entirety as set forth in Schedules 9.2(a)
and 9.2(b) hereto.
1
<PAGE>
3. Except to the limited extent modified or supplemented by this Amendment,
the provisions of the Purchase and Sale Agreement shall continue in full
force and effect as provided therein.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed on
its behalf by an officer thereunto duly authorized, all as of the day and year
first above written.
THERMO VISION CORPORATION CORNING OCA CORPORATION
By: /s/ Roger Herd By: /s/ James R. Cooke
---------------------- -----------------------------
Name: Roger Herd Name: James R. Cooke
Title: Presider Title: Vice President
2
Exhibit 99
Investor Contact: 781-622-1111
Media Contact: 781-622-1252
THERMO VISION SIGNS AGREEMENT TO ACQUIRE
NON-TELECOMMUNICATIONS OPTICAL FILTER BUSINESS
FRANKLIN, Mass., May 14, 1999 -- Thermo Vision Corporation (ASE-VIZ) announced
today that it has signed a definitive purchase agreement to acquire the assets
of the non-tele- communications optical filter business of Optical Corporation
of America (OCA), a wholly owned subsidiary of Corning Incorporated. The
acquisition will become effective July 5, 1999, to allow sufficient time to
prepare for the relocation of OCA's equipment and personnel, currently located
in Marlborough, Massachusetts, to Thermo Vision's Corion division in Franklin.
The purchase price is $4.0 million.
"We're looking forward to welcoming the OCA employees to the Thermo Vision
family," said Kristine Stotz Langdon, president and chief executive officer of
Thermo Vision. "We believe the acquisition will significantly enhance our
ability to compete in the non-telecommunications segment of the optical filter
market. In addition, through integration with our Corion division, we expect to
improve our operating efficiencies."
Thermo Vision designs, manufactures, and markets a diverse array of
photonics products - light-based technologies for scientific and industrial
applications - including optical components, sensors and imaging systems, and
optically based instruments including lasers. Thermo Vision is a public
subsidiary of Thermo Instrument Systems Inc., a Thermo Electron company. More
information is available at http://www.thermo.com/subsid/viz1.html on the
Internet.
<PAGE>
The following constitutes a "Safe Harbor" statement under the Private Securities
Litigation Reform Act of 1995: This press release contains forward-looking
statements that involve a number of risks and uncertainties. Important factors
that could cause actual results to differ materially from those indicated by
such forward-looking statements are set forth under the heading "Forward-looking
Statements" in Exhibit 13 to the company's annual report on Form 10-K for the
year ended January 2, 1999. These include risks and uncertainties relating to:
technological change, obsolescence, and new product development and acceptance;
the company's acquisition strategy; intense competition; international
operations; dependence on certain suppliers and vendors; intellectual property
rights and litigation; dependence on the semiconductor industry and industry
volatility; and the potential impact of the year 2000 on processing
date-sensitive information.
# # #
