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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
(MARK ONE)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 1998
------------------------
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
COMMISSION FILE NUMBER 0-8623
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ROBOTIC VISION SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 11-2400145
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification
organization) No.)
5 SHAWMUT ROAD, CANTON, 02021
MASSACHUSETTS
(Address of principal (Zip Code)
executive offices)
</TABLE>
Registrant's telephone number, including area code (781) 821-0830
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<S> <C>
NAME OF EACH
EXCHANGE
ON WHICH
TITLE OF EACH CLASS REGISTERED
- ------------------------------ ----------------
None None
</TABLE>
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes / / No /X/
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. /X/
APPLICABLE ONLY TO REGISTRANTS INVOLVED IN BANKRUPTCY
PROCEEDING DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the Registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes __ No __
The number of shares outstanding of the Registrant's common stock is 24,885,789
(as of 1/8/99) 0
The aggregate market value of the voting stock held by non-affiliates of the
Registrant is $96,432,000 (as of 1/8/99).
DOCUMENTS INCORPORATED BY REFERENCE
Registrant's Proxy Statement for its Annual Meeting of Stockholders scheduled to
be convened in April 1999.
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PART I
ITEM 1. DESCRIPTION OF BUSINESS
(A) GENERAL
Robotic Vision Systems, Inc. ("RVSI" or the "Company"), designs,
manufactures, markets and sells automated 1-dimensional ("1-D"), 2-dimensional
("2-D") and 3-dimensional ("3-D") machine vision-based products and systems for
inspection, measurement and identification, and is a leader in advanced
electro-optical sensor technology.
RVSI was incorporated in New York in 1976 and reincorporated in Delaware in
1977. Its executive offices are located at 5 Shawmut Road, Canton, Massachusetts
02021; telephone (781) 821-0830.
Unless otherwise noted, all subsequent references to RVSI or to the Company
in this Annual Report shall be deemed to refer to RVSI or the Company, as
applicable, and its consolidated subsidiaries as a single enterprise.
(B) FINANCIAL INFORMATION ABOUT INDUSTRY SEGMENTS
For the purpose of segment reporting, management considers the Company to
operate in one industry, the machine vision industry.
(C) NARRATIVE DESCRIPTION OF BUSINESS
(i) Principal Products and Product Development
A. SEMICONDUCTOR EQUIPMENT GROUP ("SEG") is comprised of RVSI's Electronics
Division ("Electronics"), as well as its wholly owned subsidiaries, Systemation
Engineered Products, Inc. ("Systemation") and Vanguard Automation, Inc.
("Vanguard").
Electronics supplies inspection equipment to the semiconductor industry. The
Electronics LS, GS and CS Series lead scanning systems offer automated,
high-speed, 3-D semiconductor package lead inspection with the added feature of
non-contact scanning of the packages in their shipping trays ("in-tray
scanning"). The systems use a laser-based, non-contact, 3-D measurement
technique to inspect and sort quad flat packs, thin quad flat packs, chip scale
packages ("CSP"), ball grid arrays ("BGA") and thin small outline packs in their
carrying trays. The system measurements include coplanarity, total package
height, true position spread and span, as well as lead angle, width, pitch and
gap.
Systemation offers tape-and-reel component processing systems designed to
handle CSP and BGA packages. RVSI believes that Systemation's expertise in
designing and manufacturing systems that handle components in tubes provides
RVSI with the means to further expand the breadth of its product offerings to
the semiconductor market.
Vanguard is the leading supplier of BGA and CSP equipment for the
semiconductor and connection industries. Customers for Vanguard's proprietary
BGA and CSP equipment include over a dozen of the top semiconductor
manufacturers in the world.
B. ACUITY CIMATRIX DIVISION
In June 1998, RVSI combined its Acuity Imaging Division, which was comprised
of Acuity Imaging LLC ("Acuity") and Northeast Robotics LLC ("NER"), Acuity's
wholly owned subsidiary, with its CiMatrix Division ("CiMatrix"), which was
comprised of Computer Identics Corporation and International Data Matrix, Inc.,
both wholly owned subsidiaries of RVSI. The combined operations is called the
Acuity CiMatrix Division.
The Acuity CiMatrix Division designs, manufactures and markets 1-D and 2-D
data collection products and barcode reading systems, as well as 2-D machine
vision systems and lighting products for use in industrial automation. These
products are used by a broad range of businesses, including customers in the
semiconductor, electronics, automotive, pharmaceutical, consumer products,
postal services and
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material handling industries. In addition, RVSI owns the patent to the Data
Matrix code, a 2-D code resembling a scrambled checkerboard. Due to its small
size relative to the 1-D bar code label, the Data Matrix code can be directly
marked on parts and components greatly enhancing a manufacturer's capability for
serialization and traceability.
Machine vision systems use an image processing computer, software and
electronic cameras to perform such functions as measurement, flaw detection and
inspection of manufactured products. The Company's data collection and bar code
reading systems use similar functionality to read and collect data from 1-D and
2-D bar codes for purposes such as sortation, manufacturing quality control,
traceability and security.
In September 1998, Acuity CiMatrix introduced Visionscape, the first machine
vision product platform on a single PCI board for the Pentium/Windows PC. This
product family is designed to meet the needs of both original equipment
manufacturers, which incorporate vision products into their systems, as well as
for direct use by manufacturers on their factory floor.
In December 1998, Acuity CiMatrix introduced the MXi, the first hand-held
imager for reading digital direct part marks, 1-D barcodes and new, digital 2-D
symbologies, such as the Data Matrix code. This product is a result of a joint
venture with Polaroid Corporation which began in 1997. The MXi was co-designed
and will be manufactured by Polaroid for RVSI's exclusive distribution.
C. AIRCRAFT SAFETY DIVISION
In December 1998, the Company sold its Aircraft Safety Division to a
subsidiary of B.F. Goodrich for $4.5 million in cash. The Company no longer
considered this technology a key component of its product portfolio or future
strategic direction. The Company expects to report a gain of approximately $3.0
million on the sale in the first quarter of fiscal 1999.
(ii) MANUFACTURING
Each of the Company's production facilities are capable of fabricating and
assembling total electronic and electromechanical systems and subsystems.
Facilities include assembly and wiring operations that have the ability to
produce complex wiring harnesses, as well as intricate electronic subassemblies.
The Company maintains comprehensive test and inspection programs to ensure that
all systems meet exacting customer requirements for performance and quality
workmanship prior to delivery.
(iii) MARKETING AND SALES
The SEG's marketing strategy focuses on cultivating long-term relationships
with the leading manufacturers of electronic and semiconductor inspection and
quality control equipment. Its marketing efforts rely heavily on direct sales
methods. The selling cycle for products, generally, is between six to nine
months from initial customer contact to closure. A lengthier process is often
the case in the purchase of an initial unit. Subsequent purchases require less
time and often result in multiple orders. SEG sales activities in the domestic
market are handled by direct sales personnel. The SEG also maintains sales
capabilities in both Europe and the Far East through independent sales
representatives and distributors, providing access to all major markets for
electronic and semiconductor test equipment. A sales and technical support
office is maintained in Singapore.
The Acuity CiMatrix Division markets its products through a combination of
direct sales personnel, distributors and system integrators. For sales made
through distributors, the Acuity CiMatrix Division supports these activities
with direct sales management and technical support personnel. Besides sales and
support offices in various locations in the United States, the Acuity CiMatrix
Division also maintains sales and support offices in the United Kingdom, France
and Germany.
(iv) SOURCES OF SUPPLY
To support its internal operations and to extend its overall capacity, the
Company purchases a wide variety of components, assemblies and services from
proven outside manufacturers, distributors and
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service organizations. The Company has not experienced any significant
difficulty in obtaining adequate supplies to perform under its contracts.
A number of the Company's components and sub-systems are purchased from
single sources. The Company believes that alternative sources of supply could be
obtained, if necessary, without major interruption in production. In addition,
certain products or sub-systems developed and marketed by the Acuity CiMatrix
Division are incorporated into the SEG's product offerings.
(v) PROPRIETARY PROTECTION
At September 30, 1998 the Company owned over 100 issued U.S. patents, with
expiration dates ranging from 1999 to 2014. The Company also has various U.S.
and foreign registered trademarks.
The Company does not believe that its present operations are materially
dependent upon the proprietary protection that may be available to the Company
by reason of any one or more of such patents. Moreover, as its patent position
has not been tested, with the exception of the litigation referred to elsewhere
herein under "Legal Proceedings," no assurance can be given as to the
effectiveness of the protection afforded by its patent rights.
(vi) CUSTOMERS
Intel Corporation accounted for 20%, 23% and 13% of the Company's revenues
during its fiscal years ended September 30, 1998, 1997 and 1996, respectively.
No other customers accounted for more than 10% of such sales during the fiscal
years ended September 30, 1998, 1997 and 1996, respectively.
(vii) BACKLOG
At September 30, 1998 the Company's backlog was $16.9 million as compared to
$43.2 million at September 30, 1997. The Company believes that most of its
backlog at September 30, 1998 will be delivered in fiscal 1999. The Company does
not believe that its backlog at any particular time is necessarily indicative of
its long-term future business.
(viii) COMPETITION
The Company believes that machine vision has evolved into a new industry
over the past several years, in which a number of machine vision-based firms
have developed successful industrial applications for the technology. The
Company is aware that a large number of companies, estimated to be upward of 100
firms, entered the industry in the 1980's and that most of these were small
private concerns. Over the last several years the number of competitors has
narrowed to less than 25. The Company believes this is attributable, to a large
extent, to consolidation within the industry. Based upon the breadth of its
product lines, its customer base, and its level of revenues, the Company
believes that it is a significant factor in the machine vision industry.
(ix) RESEARCH AND DEVELOPMENT
Company-sponsored research and development efforts over recent years have
been largely devoted to continued development of advanced 2-D and 3-D vision
technology and applications software for use in various inspection and process
control automation systems. Research and development has also included activity
related to automatic identification technology development. Research and
development expenditures, net of capitalized software development costs, were
$28,121,000, $25,465,000 and $21,834,000 for the fiscal years ended September
30, 1998, 1997 and 1996, respectively. In the fiscal years ended September 30,
1998, 1997 and 1996, the Company capitalized $7,397,000, $4,842,000 and
$2,630,000, respectively, of its software development costs in accordance with
the provisions of Statement of Financial Accounting Standards No. 86.
(x) ENVIRONMENTAL REGULATION
The Company believes that compliance with federal, state, local and, where
applicable, foreign environmental regulations does not have any material effect
on its capital expenditures, earnings or competitive position.
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(xi) EMPLOYEES
At September 30, 1998 the Company employed 710 persons, of whom 295 were
engineering and other technical personnel. None of the Company's employees is a
member of a labor union.
(D) FINANCIAL INFORMATION RELATING TO FOREIGN AND DOMESTIC OPERATIONS AND EXPORT
SALES
Revenues from unaffiliated customers generated by the Company's European
subsidiaries were $14,556,000, $16,812,000 and $16,226,000 for the years ended
September 30, 1998, 1997 and 1996, respectively.
Total revenues to customers outside the U.S. were $108,711,000, $115,854,000
and $97,483,000 for the years ended September 30, 1998, 1997 and 1996,
respectively.
ITEM 2. PROPERTIES
The Company's executive offices, as well as its Acuity CiMatrix Division, is
located in a 60,000 square foot facility in Canton, Massachusetts. The Acuity
CiMatrix Division also maintains a 50,000 square foot engineering facility in
Nashua, New Hampshire and its NER operations are located in a 12,000 square foot
facility in Weare, New Hampshire. The Company's Electronics Division is located
in a 65,000 square foot facility located in Hauppauge, New York. Systemation's
operations are located in a 90,000 square foot facility located in New Berlin,
Wisconsin and Vanguard's operations are located in a 38,000 square foot facility
in Tucson, Arizona.
The Company also maintains sales and service offices across the United
States to support its various operations. The Acuity CiMatrix Division has sales
and service offices in the United Kingdom, France and Germany and the Company
maintains a sales and service office in Singapore to support its Electronics,
Systemation and Vanguard operations.
All of the Company's facilities are leased, with lease expiration dates
ranging from 1999 to 2013.
ITEM 3. LEGAL PROCEEDINGS
The Company, as plaintiff, was a party to an action initiated by the Company
in the United States District Court for the Eastern District of New York against
defendant Cybo Systems, Inc. ("Cybo"), entitled Robotic Vision Systems, Inc. v.
Cybo Systems, Inc. a/k/a Cybot Systems, Inc., alleging certain contractual
breaches by Cybo arising from the Company's sale to Cybo of the Company's
welding and cutting systems business. In October 1998, this action, including
all of Cybo's remaining counterclaims against the Company, was dismissed with
prejudice by mutual agreement of the Company and Cybo and without any payment by
either party to the other, following a partial summary judgment ruling by the
Court that had dismissed substantially all of Cybo's counterclaims against the
Company.
The Company, as plaintiff, was a party to two actions in the United States
District Court for the Central District of California against View Engineering,
Inc. ("View"), a wholly owned subsidiary of General Scanning, Inc. ("GSI") [see
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and Note 11 to the Consolidated Financial Statements for information
with respect to the settlement in June 1998 of the Company's action in the
United States District Court for the Eastern District of New York against GSI
arising from GSI's August 1996 acquisition of View (the "GSI Settlement")],
alleging infringement by View of a number of the Company's patents relating to
View's assembly and distribution of View's own 3-D machine vision products. In
June 1998, the Court, in the first of these actions, involving the coplanarity
inspection of ball grid array semiconductor package substrates, found
infringement by View and granted the Company's request for injunctive relief
against View. This ruling has been appealed by View to the United States Appeals
Court for the Federal Circuit. The second
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of these actions, involving the "in-tray" inspection of semiconductor packages,
is unaffected by the GSI Settlement and is presently expected to come to trial
in the spring of 1999.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
PART II
ITEM 5. MARKET FOR THE COMPANY'S COMMON STOCK AND RELATED SECURITY HOLDER
MATTERS
(a) MARKET INFORMATION
The Company's Common Stock is quoted on The Nasdaq National Market under the
symbol ROBV. The following table sets forth the high and low closing prices for
the Company's Common Stock for the periods indicated:
<TABLE>
<CAPTION>
FISCAL QUARTER ENDED HIGH LOW
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<S> <C> <C>
September 30, 1998............................................................................... $ 4 7/8 $ 2
June 30, 1998.................................................................................... 12 3/4 3 1/2
March 31, 1998................................................................................... 14 3/8 10
December 31, 1997................................................................................ 17 1/2 10 1/4
September 30, 1997............................................................................... $ 16 7/8 $ 11 3/4
June 30, 1997.................................................................................... 11 7/8 8 3/8
March 31, 1997................................................................................... 18 1/4 10 3/4
December 31, 1996................................................................................ 15 3/8 10
</TABLE>
On January 8, 1999 the closing price of the Company's Common Stock was
$3 7/8 per share.
(b) HOLDERS
The number of holders of record of the Company's Common Stock as of January
8, 1999 was approximately 3,500.
(c) DIVIDENDS
The Company has not paid any cash dividends since its inception and does not
contemplate doing so in the near future. Any decisions as to the future payment
of dividends will depend on the earnings and financial condition of the Company
and such other factors as the Board of Directors deems relevant at that time.
In addition, the payment of cash dividends is restricted under the terms of
the Company's revolving credit arrangements with its bank.
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
Statement of Operations Data:
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SEPTEMBER 30,
----------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1998 1997 1996 1995 1994
---------- ---------- ---------- ---------- ----------
Revenues............................................. $ 169,007 $ 169,342 $ 153,975 $ 145,415 $ 102,056
Income (loss) before income taxes.................... $ (40,505) $ 1,393 $ (319) $ 12,092 $ 2,853
Provision (benefit) for income taxes................. $ -- $ 745 $ (1,154) $ (56) $ 1
Net income (loss).................................... $ (40,505) $ 648 $ 835 $ 12,148 $ 2,852
Basic net income (loss) per share.................... $ (1.65) $ 0.03 $ 0.04 $ 0.65 $ 0.16
Diluted net income (loss) per share.................. $ (1.65) $ 0.03 $ 0.04 $ 0.58 $ 0.15
</TABLE>
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Selected Balance Sheet Data:
(In Thousands)
<TABLE>
<CAPTION>
AT SEPTEMBER 30,
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<S> <C> <C> <C> <C> <C>
1998 1997 1996 1995 1994
---------- ---------- ---------- --------- ---------
Total assets........................................... $ 121,571 $ 139,923 $ 107,471 $ 83,520 $ 50,410
Current assets......................................... $ 72,227 $ 110,541 $ 88,370 $ 71,755 $ 40,867
Total liabilities...................................... $ 84,774 $ 64,346 $ 43,858 $ 39,171 $ 33,459
Stockholders' equity................................... $ 36,797 $ 75,577 $ 63,613 $ 44,349 $ 16,951
Working capital (deficit).............................. $ (9,488) $ 55,159 $ 45,741 $ 34,590 $ 10,853
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
FISCAL YEARS ENDED SEPTEMBER 30, 1998 AND 1997
Revenues were $169.0 million for the fiscal year ended September 30, 1998,
compared to $169.3 million for the fiscal year ended September 30, 1997.
Primarily as a result of a severe downturn in the semiconductor capital
equipment industry, the Company's revenues declined from $53.8 million in the
first quarter of fiscal 1998 to a low of $28.4 million in the fourth quarter of
fiscal 1998. The Company's Electronics, Systemation and Vanguard operations were
adversely affected by a significant decline in orders, and cancellations of
previously placed orders, for semiconductor inspection and handling equipment.
The weak semiconductor industry conditions were largely a result of the Asian
economic crisis and excess industry capacity. In addition, revenues for the
Company's Acuity CiMatrix Division declined approximately 10% year-to-year,
largely as a result of lower revenues to customers in Asia and Europe.
Before the inventory provisions, the gross profit margin, as a percentage of
revenues, was 42.9% for the fiscal year ended September 30, 1998, compared to a
gross profit margin of 44.6% of revenues for the fiscal year ended September 30,
1997. In addition, the gross profit margin for the fiscal year ended September
30, 1998 was reduced by a provision for excess and obsolete inventories of $16.6
million, or 9.8% of revenues. The gross profit margin declined sequentially in
fiscal 1998 as result of proportionately high fixed manufacturing costs relative
to lower shipment levels, as well as the affect of a lower margin product mix.
In the third and fourth quarters of fiscal 1998, the Company took provisions
of $4.5 million and $12.1 million, respectively, for excess and obsolete
inventories primarily for its semiconductor inspection and handling equipment.
These provisions largely reflected reduced demand for older generation products
as a result of the severe semiconductor industry downturn.
During fiscal 1998, the Company took multiple steps to reduce its expenses
and to lower the level of revenues necessary for break-even results of
operations. These steps included a 10% workforce reduction in April 1998, a 15%
workforce reduction in June 1998 and an additional 16% workforce reduction in
September 1998, as well as curtailing discretionary spending and capital
expenditures. In June 1998, the Company combined its Acuity 2-D machine vision
operations with its CiMatrix 1-D and 2-D barcode reading and data collection
operations. Primarily as a result of these steps, the Company took a total of
$6.6 million in non-recurring charges in fiscal 1998. These charges included
$3.8 million for severance payments to terminated employees, $1.5 million for
costs associated with changing distributors in Asia, a $1.1 million non-cash
write-down of previously capitalized software development costs associated with
currently inactive products and $0.2 million in costs associated witht the
consolidation of the Acuity and CiMatrix operations. As a result of these
measures, research and development expenses and selling, general and
administrative expenses, combined, were reduced from $23.0 million in the second
quarter to $19.3 million in the fourth quarter of fiscal 1998.
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Research and development expenses were $28.1 million, or 16.6% of revenues,
in fiscal 1998, compared to $25.5 million, or 15.0% of revenues, in fiscal 1997.
The higher level of research and development expenses reflected the Company's
continued investment in new products, including new semiconductor inspection and
component handling systems, as well as new visual inspection and data collection
products. During fiscal 1998, the Company capitalized $7.4 million of its
software development costs, in accordance with Statement of Financial Accounting
Standards No. 86, compared to $4.8 million in fiscal 1997.
Selling, general and administrative expenses were $58.9 milion, or 34.8% of
revenues, in fiscal 1998, compared to $48.3 million, or 28.5% of revenues, in
fiscal 1997. The year-to-year increase in expenses is largely related to
personnel additions to the Company's sales and marketing organizations,
primarily in the first half of fiscal 1998. In addition, legal costs associated
with patent infringement and fraud litigation initiated by the Company against
GSI were $4.5 million in fiscal 1998.
The Company incurred merger costs of $0.6 million in the first quarter of
fiscal 1998 related to its acquisition of Vanguard Automation, Inc.
Net interest expense was $2.3 million in fiscal 1998 compared to $0.3
million in fiscal 1997. The increase in interest expense is a result of the
significantly higher level of bank borrowings in fiscal 1998. Proceeds from bank
borrowings during fiscal 1998 were primarily used to fund working capital
requirements and results of operations.
There was no tax provision in fiscal 1998 as a result of the loss for the
period. In fiscal 1997, the Company had a tax provision of $0.7 million relating
to minimum federal and state income taxes.
For fiscal 1998, the Company had a net loss, before inventory provisions and
non-recurring charges, of $17.3 million, or a loss of $0.70 per share. Including
inventory provisions of $16.6 million and non-recurring charges of $6.6 million,
the net loss for fiscal 1998 was $40.5 million, or a loss of $1.65 per share. In
fiscal 1997, the Company had net income of $0.6 million, or $0.03 per share.
FISCAL YEARS ENDED SEPTEMBER 30, 1997 AND 1996
Revenues of $169.3 million for the year ended September 30, 1997 represent
an increase of $15.4 million or 10.0%, over revenues of $154.0 million for the
year ended September 30, 1996. The increase in revenues was primarily
attributable to increased shipments of RVSI's LS-3000 Series and GS-5000 Series
semiconductor lead inspection systems.
The gross profit margin for the fiscal year ended September 30, 1997 was
46%, as compared to 45% for the fiscal year ended September 30, 1996.
Continued development of the LS-3000 and GS-5000 Series of lead scanning
systems, computerized visual inspection equipment, and barcode scanning and data
collection equipment, as well as the ID-1 aircraft wing ice detection system,
primarily accounted for $25.5 million in research and development expense, net
of capitalized software development costs, during the year ended September 30,
1997, as compared to $21.8 million during fiscal 1996. In its fiscal year ended
September 30, 1997, the Company capitalized $4.8 million of its software
development costs as compared to $2.6 million over the comparable 1996 period in
accordance with the provisions of Statement of Financial Accounting Standards
No. 86 ("SFAS No. 86"). Capitalized software development costs for the fiscal
year ended September 30, 1997 include $0.8 million of costs related to certain
acquired subsidiaries. These subsidiaries had not capitalized any software
development costs in prior years because prior to their respective acquisitions
by the Company they had not utilized detailed program designs in the software
development process. In general, the software development costs incurred by
these subsidiaries between the time working models were available and the
related software projects were released to customers were not material.
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Selling, general and administrative costs of $48.3 million increased by $3.4
million or 7.6%, for the year ended September 30, 1997 as compared to $44.9
million in the prior fiscal year, primarily as a result of increased marketing
and distribution costs. For the year ended September 30, 1997, net interest
expense was $0.3 million compared to net interest income of $0.2 million in the
comparable period in 1996. The decrease is a result of using a significant
portion of the Company's cash to finance growing accounts receivable and
inventory as the Company's revenue increased.
Net income for the year ended September 30, 1997 was $0.6 million or $0.03
per share, as compared to net income of $0.8 million, or $0.04, for the year
ended September 30, 1996.
During the fiscal year ended September 30, 1997, the Company recorded a net
provision for income taxes of $0.7 million. The current year provision primarily
relates to minimum federal and state income taxes which were partially offset by
a decrease in the valuation allowance relating to deferred tax assets which
emanated from a change in the legal structure of certain subsidiaries which
eliminated certain limitations on the Company's utilization of net operating
losses of acquired subsidiaries. During the fiscal year ended September 30,
1996, the Company recorded a net benefit from income taxes of $1.2 million. This
benefit primarily resulted from a decrease in the valuation allowance relating
to deferred tax assets which emanated from the Company's profitable operations
in fiscal 1996, and the extent to which the Company substantiated projected
future earnings.
The net deferred tax assets at September 30, 1997 and 1996 of $8.8 million
and $8.1 million, respectively, are equivalent to the benefit to be derived from
net operating loss carryforwards, and net deductible temporary differences that
were expected to be utilized to offset future taxable income projected as of the
respective balance sheet dates. The valuation allowance as of September 30, 1997
relates primarily to net operating loss carryforwards and tax credit
carryforwards of Acuity and CiMatrix which are subject to annual limitations.
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash balance declined from $8.8 million at September 30, 1997
to $2.4 million at September 30, 1998, as a result of $18.7 million of net cash
used in operating activities, $9.1 million of net cash used for additions to
plant and equipment and $21.5 million of net cash provided by financing
activities.
The $18.7 million of net cash used in operating activities was primarily a
result of the loss for the year, less non-cash depreciation and amortization
charges.
Accounts receivable declined from $50.6 million at September 30, 1997 to
$32.4 million at September 30, 1998. This reduction in accounts receivable
largely reflects the much lower level of revenues in the fourth quarter of
fiscal 1998 ($28.4 million) as compared to the fourth quarter of fiscal 1997
($53.1 million).
Inventories were $36.2 million at September 30, 1998 compared to $39.1
million at September 30, 1997, a net reduction of $2.9 million, including a
total of $16.6 million in inventory provisions in fiscal 1998. Excluding the
inventory provisions, the increase in inventories in fiscal 1998 was largely a
result of revenues declining significantly below expectations, beginning late in
the second quarter, which resulted in higher than planned ending inventory
levels. The Company minimized the level of inventory purchases in the second
half of fiscal 1998, which resulted in a net decrease in inventories of $3.6
million during this period, excluding the inventory provisions.
During fiscal 1998, the Company had net additions to plant and equipment of
$9.1 million, which exceeded depreciation charges of $6.1 million. The additions
to plant and equipment were primarily for equipment used in research and
development activities, as well as customer support activities.
8
<PAGE>
The increase in other long-term assets of $8.4 million largely reflects an
increase in capitalized software development costs during fiscal 1998, net of
amortization, of $4.5 million, and an intangible asset of $3.75 million
reflecting the technology license and non-competition agreement obtained as a
result of the Company's settlement agreement with GSI. The Company has
classified its net deferred tax asset as a long-term asset as a result of the
loss for the fiscal year and the current uncertainty of realizing this tax
benefit in the near-term.
In June 1998, the Company reached a settlement of its claims against GSI
arising out of GSI's acquisition of View Engineering, Inc. in August 1996. The
Company claimed that GSI used improperly obtained information in connection with
the acquisition. Under the settlement agreement, GSI has agreed not to compete
for ten years in the inspection of interconnect leads of semiconductor packages
and has licensed its 2-D and 3-D vision technology solely and exclusively for
the Company's use in the inspection of leads, pins, bumps and other present and
future device interconnection leads. In consideration for this technology
license and non-competition agreement, the Company agreed to pay GSI a total of
$3.75 million, of which $1.50 million represents 271,493 shares of the Company's
common stock and $2.25 million in a subordinated note payable with a maturity
date of five years.
Accounts payable declined from $23.3 million at September 30, 1997 to $21.4
million at September 30, 1998. The reduction in accounts payable was a result of
the significantly lower level of inventory purchases made by the Company in the
second half of fiscal 1998. As a result of the negative cash flow from
operations, the Company had a substantial portion of its accounts payable
balances which were beyond normal vendor payment terms at September 30, 1998.
Accrued expenses increased from $19.6 million at September 30, 1997 to $21.1
million at September 30, 1998. Included in accrued expenses are the future cash
outlays associated with the non-recurring charges of $6.6 million in fiscal
1998. Non-recurring charges included $3.8 million for employee severance, $1.5
million for costs associated with changes to the Company's distributors in Asia,
a $1.1 million non-cash write-down of previously capitalized software
development costs and $0.2 million in costs associated with the Acuity CiMatrix
consolidation of operations. At September 30, 1998, the Company expects to incur
future cash outlays for severance payments to terminated employees of $1.4
million and $0.7 million for Asia distribution changes and the costs to
consolidate operations.
In March 1998, the Company entered into a $37.5 million revolving credit
agreement with three domestic banks. This agreement replaced $19.5 million in
existing lines of credit and $6.9 million in borrowings outstanding under a term
loan. The revolving credit agreement is secured by essentially all of the
Company's tangible and intangible assets, has a term which expires on March 31,
2000 and currently carries interest at the bank's prime rate. The agreement has
financial covenants which include minimum profitability, minimum liquidity and
minimum net worth. As a result of the losses for the year, the Company is
currently not in compliance with the financial covenants under the agreement.
Under an amendment executed in December 1998, the Company's lending banks have
agreed to forebear their right to exercise any remedies under this agreement
until January 29, 1999. At September 30, 1998, the Company had $37.5 million in
borrowings outstanding under this agreement. At September 30, 1997, the Company
had borrowings outstanding of $6.6 million under previously existing bank lines
of credit, borrowings of $7.6 million outstanding under a term loan and a $2.0
million note payable which was paid in full in June 1998.
In December 1998, the Company sold its Aircraft Safety Division to a
subsidiary of B.F. Goodrich for $4.5 million in cash. The Company no longer
considered this technology a key component of its product portfolio or future
strategic direction. Proceeds from this sale were used for working capital
requirements and to repay $2.0 million of outstanding bank debt.
The Company has signed a term sheet with an institutional investor for a
preferred equity financing which includes a beneficial conversion feature and
also provides for warrants. Proceeds of the financing will be drawn down in two
rounds with the first round available immediately for $6.0 million and the
9
<PAGE>
second round available in three months for $6.8 million. The Company expects to
complete this transaction in the near term. Management believes that through a
combination of proceeds from the preferred equity financing, obtaining
additional external financing, its domestic banks continuing to waive
non-compliance of restrictive covenants and cash flow from operating activities,
the Company will have sufficient liquidity through at least September 30, 1999
to fund its cash requirements.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board ("FASB") issued SFAS
No. 130, "Reporting Comprehensive Income", and SFAS No. 131, "Disclosure about
Segments of an Enterprise and Related Information", both of which will be
effective for the Company in fiscal year 1999. SFAS No. 130 establishes
standards for the reporting and display of comprehensive income and its
components (revenues, expenses, gains and losses) in a full set of general
purpose financial statements. SFAS No. 131 establishes standards for the way
that public business enterprises report selected information about operating
segments. SFAS No. 131 also establishes standards for related disclosures about
products and services, geographic areas, and major customers. The implementation
of SFAS Nos. 130 and 131 will require some additional disclosures in the
Company's consolidated financial statements for the year ended September 30,
1999.
In February 1998, the FASB issued SFAS No. 132, "Employers' Disclosures
about Pensions and Other Postretirement Benefits", which the Company is required
to implement no later than fiscal year 1999. SFAS No. 132 is an amendment to
SFAS Nos. 87, 88 and 106. The statement standardizes disclosure requirements for
pension and postretirement benefits to the extent practicable, requires
additional information on changes in the benefit obligations and fair values of
plan assets that will facilitate financial analysis and eliminates certain other
disclosures. The implementation of SFAS No. 132 is not expected to have a
material effect on the Company's consolidated financial statements.
In April 1998, the Accounting Standards Executive Committee issued Statement
of Position ("SOP") 98-5, "Reporting on the Costs of Start-Up Activities", which
the Company is required to implement no later than fiscal year 2000. SOP 98-5
establishes standards that require start-up and organization costs to be
expensed as incurred. The implementation of SOP 98-5 is not expected to have a
material effect on the Company's consolidated financial statements.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities", and is effective for the Company in the
first quarter of fiscal year 2000. SFAS No. 133 establishes accounting and
reporting standards for derivative instruments, including derivative instruments
embedded in other contracts, and for hedging activities. The Company believes
the adoption of SFAS No. 133 will not have a material effect on its consolidated
financial statements.
EFFECT OF INFLATION
Management believes that the effect of inflation has not been material
during each of the years ended September 30, 1998, 1997 and 1996, respectively.
YEAR 2000 STATUS
RVSI, like many other companies, is aware of the potential for business
disruption due to the Year 2000 ("Y2K") problem, and has taken steps to assess
and address these issues. The Company is in the process of addressing Y2K
compliance in three major areas: internal operating systems (including sales,
purchasing, production, engineering, and finance), products (including installed
base and new products), and third parties (vendors). Based on current internal
audits, management believes that it has established a Y2K plan which will
address these issues.
In order to assess Y2K compliance in RVSI's internal operating systems, the
Company first took an inventory of all such systems and identified those which
are critical to the Company's operations. All such
10
<PAGE>
systems have been or will be tested for Y2K compliance by February 1999. Based
on the results of testing to date, it is estimated that about 75% of these
systems are Y2K compliant. All non-compliant systems will be brought into
compliance by March 1999, either by upgrades or replacement.
With the exception of one minor product which RVSI purchases from a third
party and resells, all RVSI products currently being shipped, as well as a large
part of our installed base, are Y2K compliant. It is expected that this
non-compliant product will be brought into compliance by June 1999. Customers of
that part of our older installed base which is not Y2K compliant will be offered
upgrade options, or replacements, which are Y2K compliant.
The area of Y2K compliance which poses the greatest risk to the Company is
its vendors, because of our lack of control over their products and operations.
In order to assess their compliance, the Company is in the process of surveying
all major vendors. The Company expects this process to be completed by March
1999, and any compliance issues to be addressed by June 1999.
Costs associated with the Company's Y2K compliance program are not
anticipated to be substantially different than normal, recurring costs, and are
not expected to materially affect financial results.
While management believes that its Y2K compliance program is on plan for
assessing and addressing any Y2K issues, full compliance can not be assured
until this effort is complete. In particular, despite the Company's best
efforts, it may be unable to establish with certainty the compliance of third
party vendors, including those outside the United States. It is possible that
the non-compliance of a key vendor could have a material, adverse effect on the
Company's operations.
As this program progresses, the Company will be better able to assess its
Y2K status in all of the areas outlined above, and focus its efforts on any Y2K
issues which become identified. By June 1999, the Company will also develop
contingency plans to be put into place in the event that any of its corrective
actions fail to fully address the Y2K issues.
MARKET RISK
Financial instruments that potentially subject the Company to concentrations
of credit-risk consist principally of cash equivalents and trade receivables.
The Company places its cash equivalents with high-quality financial
institutions, limits the amount of credit exposure to any one institution and
has established investment guidelines relative to diversification and maturities
designed to maintain safety and liquidity. The Company's trade receivables
result primarily from sales to semiconductors manufacturers located in North
America, Japan, the Pacific Rim and Europe. Receivables are from major
corporations or are supported by letters of credit. The Company maintains
reserves for potential credit losses and such losses have been immaterial.
The fair value of the Company's notes payable and long-term liabilities is
estimated based on quoted market prices for the same or similar issues or on
current rates offered to the Company for debt of the same remaining maturities.
For all other balance sheet financial instruments, the carrying amount
approximates fair value.
FORWARD-LOOKING STATEMENTS AND ASSOCIATED RISKS
This report contains forward-looking statements including statements
regarding, among other items, business strategy, growth strategy and anticipated
trends in RVSI's business, which are made pursuant to the "safe harbor"
provisions of the Private Securities Litigation Reform Act of 1995. The words
"believe," "expect" and "anticipate" and similar expressions identify
forward-looking statements, which speak only as of the date the statement is
made. These forward-looking statements are based largely on RVSI's expectations
and are subject to a number of risks and uncertainties, some of which cannot be
predicted or quantified and are beyond RVSI's control. Future events and actual
results could differ materially from those set forth in, contemplated by, or
underlying the forward-looking statements. Statements in this
11
<PAGE>
report, including those set forth in "Risk Factors," below, describe factors,
among others, that could contribute to or cause such differences. In light of
these risks and uncertainties, there can be no assurance that the
forward-looking information contained in this Report will in fact transpire or
prove to be accurate.
RISK FACTORS
FLUCTUATIONS IN THE SEMICONDUCTOR MARKET. The semiconductor industry, which
has been subject to significant market fluctuations and periodic downturns in
the past, is currently experiencing weak industry conditions. These weak
industry conditions have had an adverse affect on the revenues and earnings of
the Company, as well as other semiconductor capital equipment companies. Until
semiconductor industry conditions improve, the Company's revenues and earnings
will continue to be adversely affected.
BANK AGREEMENT
In March 1998, the Company entered into a new bank financing agreement (Note
9) that contains restrictive covenants with which the Company has not been in
compliance. All instances of noncompliance have been waived by the banks through
January 29, 1999; however, absent continuation of waivers, the Company will be
in noncompliance at the end of the waiver period.
CUSTOMER CONCENTRATION. RVSI's sales have been historically concentrated in
a small number of customers at any time, although the specific customers change
over time. Sales to Intel Corporation accounted for approximately 20% and 23%,
respectively, of RVSI's revenues during the fiscal years ended September 30,
1998 and 1997. No other customers accounted for more than 10% of sales during
such fiscal years. The loss or any significant reduction in Intel's orders for
RVSI's products may be expected to materially adversely affect RVSI's operations
and prospects.
INTERNATIONAL SALES. For the fiscal year ended September 30, 1998, export
sales accounted for approximately 64% of the Company's revenues. The Company's
international business may be affected by changes in demand resulting from
fluctuations in currency exchange rates, trade restrictions and duties, and
other political and economic factors such as the recent Asian economic crisis.
To the extent foreign currencies weaken relating to the U.S. dollar, the
Company's products could become more expensive in these countries. As with the
recent Asian economic crisis, this could adversely affect the Company's sales
volumes and profitability.
PRODUCT PROTECTION AND INTELLECTUAL PROPERTY. RVSI relies primarily on a
combination of patent registrations, trade secrets, confidentiality procedures,
contractual provisions and copyright and trademark laws to protect its
proprietary rights. RVSI seeks to protect its software and other written
materials under trade secret and copyright laws, which afford only limited
protection. At September 30, 1998, RVSI owned over 100 issued U.S. patents
relating to its 2-D and 3-D vision technology and other products, as well as the
rights to several U.S. patent applications relating to such technology.
Nonetheless, RVSI does not believe that its present operations are materially
dependent upon the proprietary protection that may be available to RVSI by
reason of any one or more of such patents. Moreover, as RVSI's patent position
has not been tested with the exception of the litigation discussed under "Legal
Proceedings," elsewhere herein, there can be no assurance given as to the
effectiveness of the protection afforded by its patent rights.
Despite RVSI's efforts to protect its proprietary rights, unauthorized
parties may attempt to copy aspects of its products or to obtain and use
information that RVSI regards as proprietary. The laws of some foreign countries
may not protect RVSI's proprietary rights to as great an extent as do the laws
of the United States, if at all. There can be no assurance that RVSI's means of
protecting its proprietary rights will be adequate or that RVSI's competitors
will not independently develop comparable or superior technologies. Third
parties may assert that RVSI's products infringe their proprietary rights.
Should litigation with respect to any such claims commence, such litigation
could be expensive and time
12
<PAGE>
consuming and could materially and adversely affect RVSI's results of operations
regardless of the outcome of the litigation.
FLUCTUATING QUARTERLY RESULTS OF OPERATIONS. RVSI has experienced, and in
the future may be expected to continue to experience, substantial variations in
its periodic results of operations as a result of a number of factors, many of
which are outside of its control. In particular, RVSI's operating results may
vary because of downturns in the semiconductor industry, changes in economic
conditions, or technology changes affecting its principal products. Any of these
factors could cause RVSI's operating results to fluctuate significantly from
period to period, including on a quarterly basis.
TECHNOLOGICAL RISKS. The future success of RVSI will depend, to a
significant extent, on its ability to enhance, develop, manufacture profitably,
and deliver on a timely basis, technologically advanced, quality products and
its ability to achieve market acceptance for such products. There can be no
assurance that RVSI will be successful in introducing products or product
enhancements once developed, or that RVSI's products will not be rendered
obsolete by new industry standards or competitive products or technologies.
COMPETITION. The markets for RVSI's products are extremely competitive.
Some of RVSI's competitors are more established and have greater financial,
technological, production, and marketing resources than RVSI. Competition could
intensify if new companies enter such markets or if existing competitors expand
their product lines. An increase in competition could have a material adverse
effect on RVSI's business and operating results. Maintaining competitive
position will require continued investment by RVSI in research and development
and sales and marketing.
DEPENDENCE ON KEY PERSONNEL. RVSI's success depends in large part upon its
ability to hire and retain qualified technical and management personnel. The
inability to hire and retain such personnel could have a material adverse effect
on RVSI. There can be no assurance that RVSI will be able to hire such qualified
personnel.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
A discussion of the Company's exposure to and management of market risk
appears in Item 7 of this Form 10-K under the heading "Market Risk."
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Reference is made to Item 14(a)1 herein.
ITEM 9. DISAGREEMENTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
Item 10 is hereby incorporated by reference from the Company's definitive
Proxy Statement to be filed within 120 days of September 30, 1998.
ITEM 11. EXECUTIVE COMPENSATION
Item 11 is hereby incorporated by reference from the Company's definitive
Proxy Statement to be filed within 120 days of September 30, 1998.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS & MANAGEMENT
Item 12 is hereby incorporated by reference from the Company's definitive
Proxy Statement to be filed within 120 days of September 30, 1998.
13
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Item 13 is hereby incorporated by reference from the Company's definitive
Proxy Statement to be filed within 120 days of September 30, 1998.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) Documents filed as part of this report:
(i) FINANCIAL STATEMENTS.
Independent Auditors' Report
Consolidated Balance Sheets at September 30, 1998 and September 30,
1997
Consolidated Statements of Operations for the Years Ended September
30, 1998, 1997 and
1996
Consolidated Statements of Stockholders' Equity for the Years Ended
September 30, 1998,
1997 and 1996
Consolidated Statements of Cash Flows for the Years Ended September
30, 1998, 1997 and
1996
Notes to Consolidated Financial Statements
(ii) FINANCIAL STATEMENT SCHEDULES.
Schedule II--Valuation and Qualifying Accounts
(iii) EXHIBITS.
10(a) Credit Agreement, dated as of March 18, 1998, by and among the
Company, the Lenders Party hereto and Bank of New York, as
Administrative Agent.
10(b) Amendment No. 1 to Credit Agreement and Forbearance, dated
December , 1998, by and among the Company, the Lenders Party
Thereto and Bank of New York, as Administrative Agent(1)
10(c) Asset Purchase Agreement, dated December 16, 1998, between the
Company and Rosemount Aerospace, Inc.
10(d) License Agreement dated December , 1998 between the Company
and Rosemount Aerospace, Inc.
10(c) License Agreement, dated as of December 4, 1998, by and among
the Company and Rosemount Aerospace, Inc.
21 Subsidiaries of Company
23(a) Independent Auditors' Consent--Deloitte & Touche LLP
27 Financial Data Schedule
-------------------------------
(1) To be filed by Amendment.
(b) Reports on Form 8-K:
None.
14
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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, in Canton,
Massachusetts, on the 18th day of January, 1999.
<TABLE>
<S> <C> <C>
ROBOTIC VISION SYSTEMS, INC.
By: /s/ PAT V. COSTA
-----------------------------------------
Pat V. Costa
PRESIDENT AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
Chairman of the Board of
/s/ PAT V. COSTA Directors, President and
- ------------------------------ Chief Executive Officer January 18, 1999
Pat V. Costa (Principal Executive
Officer)
/s/ JOHN J. ARCARI Chief Financial Officer
- ------------------------------ (Principal Financial January 18, 1999
John J. Arcari Officer)
/s/ HOWARD STERN
- ------------------------------ Senior Vice President and January 18, 1999
Howard Stern Director
/s/ ROBERT H. WALKER
- ------------------------------ Director January 18, 1999
Robert H. Walker
/s/ JAY M. HAFT
- ------------------------------ Director January 18, 1999
Jay M. Haft
/s/ DONALD J. KRAMER
- ------------------------------ Director January 18, 1999
Donald J. Kramer
- ------------------------------ Director
Mark J. Lerner
- ------------------------------ Director
Frank A. DiPietro
- ------------------------------ Director
Tomas Kohn
</TABLE>
15
<PAGE>
ROBOTIC VISION SYSTEMS, INC. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS AND
FINANCIAL STATEMENT SCHEDULE
<TABLE>
<S> <C>
Independent Auditors' Report................................................... F-1
Consolidated Balance Sheets as of September 30, 1998 and 1997.................. F-2
Consolidated Statements of Operations for the Years Ended September 30, 1998,
1997 and 1996................................................................. F-3
Consolidated Statements of Stockholders' Equity for the Years Ended September
30, 1998, 1997 and 1996....................................................... F-4
Consolidated Statements of Cash Flows for the Years Ended September 30, 1998,
1997 and 1996................................................................. F-5
Notes to Consolidated Financial Statements for the Years Ended September 30, F-6 to
1998, 1997 and 1996........................................................... F-20
Schedule II: Valuation and Qualifying Accounts................................. F-21
</TABLE>
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Board of Directors and Stockholders of
Robotic Vision Systems, Inc. and subsidiaries:
We have audited the accompanying consolidated balance sheets of Robotic
Vision Systems, Inc. and subsidiaries (the "Company") as of September 30, 1998
and 1997, and the related consolidated statements of income, stockholders'
equity, and cash flows for each of the three years in the period ended September
30, 1998. Our audits included the financial statement schedule listed in the
index at item 14(a)(ii). These financial statements and financial statement
schedule are the responsibility of the Company's management. Our responsibility
is to express an opinion on these financial statements and financial statement
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in
all material respects, the financial position of the Company at September 30,
1998 and 1997, and the results of their operations and their cash flows for each
of the three years in the period ended September 30, 1998 in conformity with
generally accepted accounting principles. Also, in our opinion, such financial
statement schedule, when considered in relation to the basic consolidated
financial statements taken as a whole, presents fairly in all material respects
the information set forth therein.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
January 18, 1999
F-1
<PAGE>
ROBOTIC VISION SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
SEPTEMBER 30, 1998 AND 1997
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
1998 1997
---------- ----------
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents............................................................... $ 2,421 $ 8,811
Accounts receivable, net................................................................ 32,367 50,563
Inventories............................................................................. 36,213 39,095
Deferred income taxes................................................................... -- 10,643
Prepaid expenses and other current assets............................................... 1,226 1,429
---------- ----------
Total current assets................................................................ 72,227 110,541
Plant and equipment, net................................................................ 17,591 14,507
Deferred income taxes................................................................... 8,820 --
Goodwill, net of accumulated amortization of $840 and $290.............................. 5,847 6,207
Other assets............................................................................ 17,086 8,668
---------- ----------
$ 121,571 $ 139,923
---------- ----------
---------- ----------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Notes payable and current portion of long-term debt..................................... $ 38,038 $ 10,623
Accounts payable........................................................................ 21,388 23,320
Accrued expenses and other current liabilities.......................................... 21,073 19,623
Advance contract payments received...................................................... 1,216 1,816
---------- ----------
Total current liabilities........................................................... 81,715 55,382
Long-term debt.......................................................................... 3,059 6,414
Deferred income taxes................................................................... -- 1,823
Other liabilities....................................................................... -- 727
---------- ----------
Total liabilities................................................................... 84,774 64,346
---------- ----------
Commitments and contingencies (Note 11).................................................
Stockholders' Equity:
Common stock, $0.01 par value; shares authorized 50,000 shares issued and outstanding;
1998--24,870 and 1997--24,438....................................................... 249 244
Additional paid-in capital............................................................ 168,493 166,623
Accumulated deficit................................................................... (131,962) (91,457)
Cumulative translation adjustment..................................................... 17 167
---------- ----------
Total stockholders' equity.......................................................... 36,797 75,577
---------- ----------
$ 121,571 $ 139,923
---------- ----------
---------- ----------
</TABLE>
See notes to consolidated financial statements
F-2
<PAGE>
ROBOTIC VISION SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED SEPTEMBER 30, 1998, 1997 AND 1996
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
1998 1997 1996
---------- ---------- ----------
<S> <C> <C> <C>
Revenues..................................................................... $ 169,007 $ 169,342 $ 153,975
Cost of revenues............................................................. 96,443 92,412 82,108
Inventory provisions......................................................... 16,562 1,435 3,052
---------- ---------- ----------
Gross profit................................................................. 56,002 75,495 68,815
---------- ---------- ----------
Operating costs and expenses:
Research and development expenses............................................ 28,121 25,465 21,834
Selling, general and administrative expenses................................. 58,877 48,259 44,861
Merger expenses.............................................................. 623 69 2,661
Non-recurring charges........................................................ 6,615 -- --
Interest income.............................................................. (92) (767) (1,148)
Interest expense............................................................. 2,363 1,076 926
---------- ---------- ----------
Total operating costs and expenses....................................... 96,507 74,102 69,134
---------- ---------- ----------
Income (loss) before income taxes............................................ (40,505) 1,393 (319)
Provision (benefit) for income taxes......................................... -- 745 (1,154)
---------- ---------- ----------
Net income (loss)............................................................ $ (40,505) $ 648 $ 835
---------- ---------- ----------
---------- ---------- ----------
Net income (loss) per share:
Basic.................................................................... $ (1.65) $ 0.03 $ 0.04
Diluted.................................................................. $ (1.65) $ 0.03 $ 0.04
Weighted Average shares:
Basic.................................................................... 24,613 23,718 22,092
Diluted.................................................................. 24,613 23,967 23,385
</TABLE>
See notes to consolidated financial statements
F-3
<PAGE>
ROBOTIC VISION SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
FOR THE YEARS ENDED SEPTEMBER 30, 1998, 1997 AND 1996
(IN THOUSANDS)
<TABLE>
<CAPTION>
COMMON STOCK
----------------------- ADDITIONAL UNREALIZED CUMULATIVE
NUMBER PAID-IN ACCUMULATED DEFERRED GAIN ON TRANSLATION
OF SHARES AMOUNT CAPITAL DEFICIT COMPENSATION INVESTMENTS ADJUSTMENT
---------- ----------- ----------- ------------ ----------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE, OCTOBER 1,
1995.................... 20,440 $ 204 $ 138,763 $ (94,766) $ (60) $ -- $ 208
Shares issued in
conjunction with the
exercise of stock
options and warrants.... 1,511 15 5,821 -- -- -- --
Shares issued in
connection with private
placement of subsidiary,
net of offering costs... 1,233 12 10,116 -- -- -- --
Shares issued in
connection with the
acquisition of Northeast
Robotics, Inc, accounted
for as a purchase....... 139 1 2,675 -- -- -- --
Warrants issued for
professional services... -- -- 74 -- -- -- --
Other stock
transactions............ 9 1 158 -- 60 -- --
Change in year end of
pooled companies........ -- -- -- (618) -- -- --
Change in net unrealized
holding gains........... -- -- -- -- -- 147 --
Translation adjustment.... -- -- -- -- -- -- (33)
Net income................ -- -- -- 835 -- -- --
---------- ----- ----------- ------------ --- ----- -----
BALANCE, SEPTEMBER 30,
1996.................... 23,332 233 157,607 (94,549) -- 147 175
Shares issued in
connection with the
exercise of stock
options and warrants.... 384 4 1,839 -- -- -- --
Other stock
transactions............ (104) (1) (488) -- -- -- --
Shares issued in
connection with private
placement of subsidiary,
net of offering costs... 826 8 7,665 -- -- -- --
Change in year end of
pooled companies........ -- -- -- 2,444 -- -- --
Change in net unrealized
holding gains........... -- -- -- -- -- (147) --
Translation adjustment.... -- -- -- -- -- -- (8)
Net income................ -- -- -- 648 -- -- --
---------- ----- ----------- ------------ --- ----- -----
BALANCE, SEPTEMBER 30,
1997.................... 24,438 244 166,623 (91,457) -- -- 167
Shares issued in
connection with the
exercise of stock
options and warrants.... 161 2 373 -- -- -- --
Shares issued in
connection with license
agreement and
non-competition
agreement............... 271 3 1,497 -- -- -- --
Translation adjustment.... -- -- -- -- -- -- (150)
Net loss.................. -- -- -- (40,505) -- -- --
---------- ----- ----------- ------------ --- ----- -----
BALANCE, SEPTEMBER 30,
1998.................... 24,870 $ 249 $ 168,493 $ (131,962) $ -- $ -- $ 17
---------- ----- ----------- ------------ --- ----- -----
---------- ----- ----------- ------------ --- ----- -----
<CAPTION>
TOTAL
STOCKHOLDERS'
EQUITY
-------------
<S> <C>
BALANCE, OCTOBER 1,
1995.................... $ 44,349
Shares issued in
conjunction with the
exercise of stock
options and warrants.... 5,836
Shares issued in
connection with private
placement of subsidiary,
net of offering costs... 10,128
Shares issued in
connection with the
acquisition of Northeast
Robotics, Inc, accounted
for as a purchase....... 2,676
Warrants issued for
professional services... 74
Other stock
transactions............ 219
Change in year end of
pooled companies........ (618)
Change in net unrealized
holding gains........... 147
Translation adjustment.... (33)
Net income................ 835
-------------
BALANCE, SEPTEMBER 30,
1996.................... 63,613
Shares issued in
connection with the
exercise of stock
options and warrants.... 1,843
Other stock
transactions............ (489)
Shares issued in
connection with private
placement of subsidiary,
net of offering costs... 7,673
Change in year end of
pooled companies........ 2,444
Change in net unrealized
holding gains........... (147)
Translation adjustment.... (8)
Net income................ 648
-------------
BALANCE, SEPTEMBER 30,
1997.................... 75,577
Shares issued in
connection with the
exercise of stock
options and warrants.... 375
Shares issued in
connection with license
agreement and
non-competition
agreement............... 1,500
Translation adjustment.... (150)
Net loss.................. (40,505)
-------------
BALANCE, SEPTEMBER 30,
1998.................... $ 36,797
-------------
-------------
</TABLE>
See notes to consolidated financial statements
F-4
<PAGE>
ROBOTIC VISION SYSTEMS, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED SEPTEMBER 30, 1998, 1997 AND 1996
(IN THOUSANDS)
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
OPERATING ACTIVITIES
Net income (loss)................................................................... $ (40,505) $ 648 $ 835
Adjustments to reconcile net income (loss) to net cash (used in) provided by
operating activities:
Deferred income taxes............................................................. -- (93) (2,881)
Depreciation and amortization..................................................... 8,769 5,895 3,938
Gain on disposal of business...................................................... -- (812) --
Other............................................................................. (164) (218) 1,318
Changes in operating assets and liabilities (net of effects of business required):
Accounts receivable............................................................. 18,196 (20,084) (7,304)
Inventories..................................................................... 2,882 (14,093) (6,781)
Prepaid expense and other current assets........................................ 203 (514) (873)
Other assets.................................................................... (7,024) (4,811) (2,845)
Accounts payable................................................................ (1,932) 10,709 2,433
Accrued expenses and other current liabilities.................................. 1,450 4,732 3,297
Advanced contract payments received............................................. (600) (10) (674)
Other liabilities............................................................... -- (82) (164)
--------- --------- ---------
Net cash (used in) provided by operating activities............................. (18,725) (18,733) (9,701)
--------- --------- ---------
INVESTING ACTIVITIES:
Proceeds from maturity of investments............................................... -- 2,319 1,000
Additions to plant and equipment, net............................................... (9,137) (7,915) (6,972)
Proceeds from sale of business...................................................... -- 952 --
Payment for purchase of business.................................................... -- (3,144) (77)
--------- --------- ---------
Net cash used in investing activities........................................... (9,137) (7,788) (6,049)
--------- --------- ---------
FINANCING ACTIVITIES:
Proceeds from the issuance of common stock and warrants -- private equity placement
(less offering costs)............................................................. -- 7,673 10,093
Proceeds from the exercise of stock options and warrants............................ 375 1,271 2,428
Purchase of treasury stock.......................................................... -- (650) --
Net proceeds from (payments of) short-term borrowings............................... 28,911 (2,833) 9,752
Proceeds from long-term borrowings.................................................. -- 8,000 245
Repayment of long-term borrowings................................................... (7,828) (1,864) (5,918)
--------- --------- ---------
Net cash provided by financing activities....................................... 21,458 11,597 16,600
--------- --------- ---------
EFFECT OF EXCHANGE RATE CHANGES ON CASH AND CASH EQUIVALENTS........................ 14 189 71
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS................................ (6,390) (14,735) 921
CASH AND CASH EQUIVALENTS:
Beginning of year................................................................. 8,811 23,546 18,859
--------- --------- ---------
End of year....................................................................... $ 2,421 $ 8,811 $ 19,780
--------- --------- ---------
--------- --------- ---------
SUPPLEMENTAL CASH FLOW INFORMATION:
Interest paid....................................................................... $ 2,311 $ 1,027 $ 841
--------- --------- ---------
--------- --------- ---------
Taxes paid.......................................................................... 244 $ 218 $ 1,415
--------- --------- ---------
--------- --------- ---------
NON-CASH INVESTING AND FINANCING ACTIVITIES:
Issuance of common stock and subordinated note payable in connection with technology
license agreement and non-competition agreement................................... $ 3,750 -- --
--------- --------- ---------
--------- --------- ---------
Income tax benefit relating to the exercise of stock options........................ 16 $ 572 $ 3,408
--------- --------- ---------
--------- --------- ---------
Liabilities incurred in connection with acquisition of business..................... -- $ 902 --
--------- --------- ---------
--------- --------- ---------
Property and equipment acquired under capital leases................................ -- $ 22 $ 99
--------- --------- ---------
--------- --------- ---------
Issuance of common stock to acquire Northeast Robotics, Inc......................... -- -- $ 2,676
--------- --------- ---------
--------- --------- ---------
</TABLE>
See notes to consolidated financial statements
F-5
<PAGE>
ROBOTIC VISION SYSTEMS, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED SEPTEMBER 30, 1998, 1997 AND 1996
1. BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES
a. DESCRIPTION OF BUSINESS--Robotic Vision Systems, Inc. ("RVSI") and
subsidiaries (the "Company") designs, manufactures, markets and sells
automated one dimensional ("1-D"), two dimensional ("2-D") and three
dimensional ("3-D") machine vision based products and systems for
inspection, measurement and identification, and is a leader in advanced
electro-optical sensor technology.
b. OPERATIONS--The Company incurred a loss for the fiscal year ended
September 30, 1998 primarily due to the effects of a substantial decline
in revenues resulting from a downturn in the semiconductor capital
equipment industry. Prior to the restatement of the Company's financial
statements for the acquisition of Vanguard Automation, Inc. as a pooling
of interests, the Company had been consistently profitable, earning $8.2
million in fiscal 1997 and $9.7 million in fiscal 1996.
During fiscal 1998, management took a series of steps to reduct expenses
and restructure operations in response to this industry downturn. In the
second, third and fourth quarters of fiscal 1998, the Company instituted
workforce reductions aggregating 39%, curtailed discretionary spending
and capital expenditures, combined its Acuity CiMatrix operations and
sold the assets and technology of its aircraft safety product line (which
did not have significant operations) in December 1998. Concurrently, the
Company has successfully introduced a range of new products designed to
broaden sales beyond the semiconductor industry.
In March 1998, the Company entered into a new bank financing agreement
(Note 9) that contains restrictive covenants with which the Company has
not been in compliance. All instances of noncompliance have been waived
by the banks through January 29, 1999; however, absent continuation of
waivers, the Company will be in noncompliance at the end of the waiver
period.
Management continues to control expenses, inventory levels and capital
expenditures; is working with existing lenders to amend the Company's
existing bank financing agreement to provide new covenants; and is
pursuing a number of new debt or equity financing alternatives. The
Company has signed a term sheet with an institutional investor for a
preferred equity financing which includes a beneficial conversion feature
and also provides for warrants. Proceeds of the financing will be drawn
down in two rounds with the first round available immediately for $6.0
million and the second round available in three months for $6.8 million.
The Company expects to complete the first round of this transaction in
the near term. Management believes that through a combination of proceeds
from the preferred equity financing, obtaining additional external
financing, its domestic banks continuing to waive non-compliance of
restrictive covenants and cash flow from operating activities, the
Company will have sufficient liquidity through at least September 30,
1999 to fund its cash requirements.
c. PRINCIPLES OF CONSOLIDATION--The consolidated financial statements
include the financial statements of Robotic Vision Systems, Inc. and its
subsidiaries, all of which are wholly-owned. All significant intercompany
transactions and balances have been eliminated in consolidation. The
effects of changes in fiscal years of pooled companies (Vanguard in
fiscal 1998 and SEP and CI in fiscal 1996) are recorded as adjustments to
accumulated deficit.
d. REVENUES AND COST OF REVENUES--The Company recognizes revenue on its
standard electronic inspection and measurement products upon shipment.
Revenue from the licensing of software is recognized when the software is
delivered if collectibility is probable and there are no significant
vendor obligations. Engineering service and support revenue is recognized
when such
F-6
<PAGE>
1. BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
services are rendered. Warranty costs associated with products sold with
warranty protection, as well as other post-contract support obligations,
are estimated based on the Company's historical experience and recorded
in the period the product is sold.
e. CASH AND CASH EQUIVALENTS--Cash and cash equivalents includes money
market accounts and certain debt securities issued by the United States
government purchased with an original maturity of three months or less.
f. INVENTORIES--Inventories are stated at the lower of cost (using the
first-in, first-out cost flow assumption) or market.
g. PLANT AND EQUIPMENT--Plant and equipment is recorded at cost less
accumulated depreciation and amortization. Depreciation is computed by
the straight-line method over estimated lives ranging from two to eight
years. Leasehold improvements are amortized over the lesser of their
respective estimated useful lives or lease terms.
h. INTANGIBLE ASSETS--Goodwill is being amortized over 15 years; a
technology license and non-competition agreement are being amortized over
10 years. The Company reviews its long-lived assets, including goodwill
and other identifiable intangibles for impairment whenever events or
changes in circumstances indicate that the carrying amount of the assets
may not be fully recoverable.
i. SOFTWARE DEVELOPMENT COSTS--Software development costs are capitalized
in accordance with SFAS No. 86. Capitalized software development costs
are amortized primarily over a five-year period, which is the estimated
useful life of the software. Amortization begins in the period in which
the related product is available for general release to customers.
j. RESEARCH AND DEVELOPMENT COSTS--The Company charges research and
development costs for Company-funded projects to operations as incurred.
Research and development costs which are reimbursable under
customer-funded contracts are treated as contract costs.
k. INCOME TAXES--The Company accounts for income taxes under the provisions
of SFAS No. 109, "Accounting for Income Taxes," which requires
recognition of deferred tax assets and liabilities for the expected
future tax consequences of events that have been included in the
Company's consolidated financial statements or tax returns. Under this
method, deferred tax assets and liabilities are determined based on the
differences between the financial accounting and tax bases of assets and
liabilities using enacted tax rates in effect for the year in which the
differences are expected to reverse.
l. FOREIGN CURRENCY TRANSLATION--Assets and liabilities of the Company's
European subsidiaries are translated at the exchange rate in effect at
the balance sheet date. Income statement accounts are translated at the
average exchange rate for the year. The resulting translation adjustments
are excluded from operations and accumulated as a separate component of
stockholders' equity. Transaction gains (losses) are included in net
income and totaled $106,000, $(267,000) and $(52,000) in 1998, 1997 and
1996, respectively.
m. NET INCOME (LOSS) PER COMMON SHARE--In 1998, the Company adopted
Statement of Financial Accounting Standards No. 128, Earnings Per Share
(SFAS 128). Under SFAS 128, basic income (loss) per common share is
computed using the weighted average number of common shares outstanding
during each year. Diluted net income per common share reflects the effect
of the Company's outstanding options (using the treasury stock method),
except where such options would be anti-dilutive. Prior year's net income
per share have been restated to conform to SFAS 128.
F-7
<PAGE>
1. BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
n. FAIR VALUE OF FINANCIAL INSTRUMENTS--The following methods and
assumptions were used to estimate the fair value of each class of
financial instruments:
a) Cash and Cash Equivalents--The carrying amounts approximate fair
value because of the short maturity of these instruments.
b) Receivables--The carrying amount approximates fair value because of
the short maturity of these instruments.
c) Debt--The carrying amounts approximate fair value based on borrowing
rates currently available to the Company for loans with similar
terms.
o. USE OF ESTIMATES--The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of revenues and
expenses during the reporting period. Actual results could differ from
those estimates.
The Company's most significant estimates relate to the deferred income
tax valuation allowance, allowance for doubtful accounts receivable,
reserve for excess and obsolete inventory, and warranty reserve.
p. RECLASSIFICATIONS--Certain amounts in the 1996 and 1997 financial
statements have been reclassified to conform with the 1998 presentation.
q. RECENT ACCOUNTING PRONOUNCEMENTS--In June 1997, the Financial Accounting
Standards Board ("FASB") issued SFAS No. 130, "Reporting Comprehensive
Income", and SFAS No. 131, "Disclosure about Segments of an Enterprise
and Related Information", both of which will be effective for the Company
in fiscal year 1999. SFAS No. 130 establishes standards for the reporting
and display of comprehensive income and its components (revenues,
expenses, gains and losses) in a full set of general purpose financial
statements. SFAS No. 131 establishes standards for the way that public
business enterprises report selected information about operating
segments. SFAS No. 131 also establishes standards for related disclosures
about products and services, geographic areas, and major customers. The
implementation of SFAS Nos. 130 and 131 will require some additional
disclosures in the Company's consolidated financial statements for the
year ended September 30, 1999.
In February 1998, the FASB issued SFAS No. 132, "Employers' Disclosures
about Pensions and Other Postretirement Benefits", which the Company is
required to implement no later than fiscal year 1999. SFAS No. 132 is an
amendment to SFAS Nos. 87, 88 and 106. The statement standardizes
disclosure requirements for pension and postretirement benefits to the
extent practicable, requires additional information on changes in the
benefit obligations and fair values of plan assets that will facilitate
financial analysis and eliminates certain other disclosures. The
implementation of SFAS No. 132 is not expected to have a material effect
on the Company's consolidated financial statements.
In April 1998, the Accounting Standards Executive Committee issued
Statement of Position ("SOP") 98-5, "Reporting on the Costs of Start-Up
Activities", which the Company is required to implement no later than
fiscal year 2000. SOP 98-5 establishes standards that require start-up
and organization costs to be expensed as incurred. The implementation of
SOP 98-5 is not expected to have a material effect on the Company's
consolidated financial statements.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities", and is effective for the Company in
the first quarter of fiscal year 2000. SFAS
F-8
<PAGE>
1. BUSINESS AND SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
No. 133 establishes accounting and reporting standards for derivative
instruments, including derivative instruments embedded in other
contracts, and for hedging activities. The Company believes the adoption
of SFAS No. 133 will not have a material effect on its consolidated
financial statements.
2. ACQUISITIONS
a. VANGUARD AUTOMATION, INC.
On December 9, 1997, the Company acquired the outstanding shares of
Vanguard Automation, Inc. ("Vanguard") for approximately 3,391,000
shares of the Company's common stock, having a market value at the date
of the merger of approximately $45,776,000. Outstanding Vanguard stock
options were converted into stock options to purchase approximately
152,000 shares of the Company's common stock. Outstanding Vanguard
warrants were converted into warrants to purchase approximately 182,000
shares of the Company's common stock. Vanguard produces and markets
automated manufacturing equipment used in the assembly of certain types
of semiconductor packaging processes, including ball grid array and chip
scale packages. This acquisition has been accounted for as a pooling of
interests and, accordingly, the consolidated financial statements have
been restated to include the accounts of Vanguard for all periods
presented. Expenses of $623,000, relating primarily to investment
banking, legal and accounting fees, were incurred relating to this
merger and charged to expense in fiscal 1998.
The accompanying September 30, 1996 consolidated financial statements
include Vanguard's amounts for the years ended December 31, 1996. The
accompanying consolidated financial statements for the year ended
September 30, 1997 include the operations of Vanguard on a common fiscal
year. Vanguard's net loss for the period October 1, 1996 through
December 31, 1996 of $2,444,000, included twice in the accompanying
consolidated statements of operations for the fiscal years ended
September 30, 1997 and 1996 as a result of conforming fiscal years, has
been included as an adjustment to consolidated accumulated deficit in
fiscal 1997.
Detailed below is the effect on the Company's results of operations for
fiscal 1997 and fiscal 1996 as a result of the Company's acquisition of
Vanguard.
<TABLE>
<CAPTION>
(In thousands, except per share amounts) RVSI VANGUARD ELIMINATIONS COMBINED
- ---------------------------------------------- ---------- ----------- ------------- ----------
<S> <C> <C> <C> <C>
1997
Revenues...................................... $ 152,103 $ 18,218 $ (979) $ 169,342
Net income (loss)............................. 8,245 (7,511) (86) 648
Net income per share.......................... 0.38 0.03
1996
Revenues...................................... $ 143,540 $ 10,977 $ (542) $ 153,975
Net income (loss)............................. 9,726 (8,851) (40) 835
Net income per share.......................... 0.45 0.04
</TABLE>
b. TRIGON
On June 30, 1997, the Company acquired Trigon Technologies, Inc.
("Trigon"), a privately owned company located in Farmington Hills,
Michigan. Trigon markets a line of 2-D machine vision products for the
semiconductor industry. The purchase price was $3,000,000 in cash plus
contingent consideration based upon the sales level of certain products
sold by Trigon, over a five-year period.
F-9
<PAGE>
2. ACQUISITIONS (CONTINUED)
This acquisition has been accounted for as a purchase and, accordingly,
the results of Trigon are included in the consolidated statements of
operations of the Company since the date of acquisition and the purchase
price (including acquisition costs) has been allocated to net assets
acquired based upon their fair values. Goodwill relating to the
acquisition of $2,997,000 is being amortized over 15 years. The
historical results of operations of Trigon were not material to the
operations of the Company.
c. SYSTEMATION ENGINEERED PRODUCTS, INC.
On October 1, 1996, the Company acquired the outstanding shares of
Systemation Engineered Products, Inc. ("SEP") for 1,740,000 shares of
the Company's common stock, having a market value at the date of the
merger of approximately $22,838,000. SEP designs manufactures, markets
and sells specialized high speed production machinery for the
electronics component industry. SEP's product lines include tape and
reel packaging equipment and automatic optical inspection systems. This
acquisition has been accounted for as a pooling of interests and,
accordingly, the consolidated financial statements have been restated to
include the accounts of SEP for all periods presented. The accompanying
consolidated financial statements for the years ended September 30,
1998, 1997 and 1996 include the operations of SEP on a common fiscal
year. Expenses of $904,000 were incurred related to this merger.
d. COMPUTER IDENTICS CORPORATION
On August 30, 1996, the Company acquired the outstanding shares of
Computer Identics Corporation ("CI") for approximately 2,127,000 shares
of the Company's common stock, having a market value at the date of the
merger of approximately $30,580,000. Outstanding CI stock options were
converted into options to purchase approximately 186,000 shares of the
Company's common stock. Outstanding CI warrants were converted into
warrants to purchase approximately 39,000 shares of the Company's common
stock. CI designs, manufactures, markets and sells standard barcode
products, data collection networks and systems for data collection and
material handling/industrial markets. This acquisition has been
accounted for as a pooling of interests and accordingly, the
consolidated financial statements have been restated to include the
accounts of CI for all periods presented. Expenses of $1,547,000 were
incurred related to this merger.
e. NORTHEAST ROBOTICS, INC.
On May 30, 1996, the Company consummated a merger with Northeast
Robotics, Inc. ("NER"), a privately owned company located in New Boston,
New Hampshire, pursuant to which NER became a wholly owned subsidiary of
the Company (the "NER Merger"). NER markets a line of patented
illumination products to perform reliably in difficult imaging
applications involving highly reflective or uneven surfaces. As a
consequence of the NER Merger, the Company issued approximately 139,000
shares of its common stock (which had a market value of approximately
$2,676,000 on the date the NER Merger was consummated) to the
shareholders of NER in exchange for all of the outstanding shares of NER
common stock.
This acquisition has been accounted for as a purchase and, accordingly,
the results of NER are included in the consolidated statements of
operations of the Company since the date of acquisition and the purchase
price (including acquisition costs) has been allocated to net assets
acquired based upon their fair values. Goodwill relating to the
acquisition of $2,688,000 is being amortized over 15 years. The
historical results of operations of NER were not material to the
operations of the Company.
f. INTERNATIONAL DATA MATRIX, INC.
F-10
<PAGE>
2. ACQUISITIONS (CONTINUED)
On October 23, 1995, the Company acquired the outstanding shares of
International Data Matrix, Inc. ("IDM") for approximately 370,000 shares
of the Company's common stock, having a market value at the date of the
merger of approximately $8,183,000. IDM was a manufacturer and supplier
of two dimensional bar code reading systems. This acquisition has been
accounted for as a pooling of interests and accordingly, the
consolidated financial statements have been restated to include the
accounts of IDM for all periods presented. Expenses of $445,000 were
incurred related to this merger.
3. ACCOUNTS RECEIVABLE
Accounts receivable at September 30, 1998 and 1997 consisted of the
following:
<TABLE>
<CAPTION>
(IN THOUSANDS)
--------------------
<S> <C> <C>
1998 1997
--------- ---------
Billed accounts receivable...................................................... $ 30,923 $ 47,638
Unbilled accounts receivable.................................................... 2,444 5,641
--------- ---------
Total........................................................................... 33,367 53,279
Less allowance for doubtful accounts receivable................................. (1,000) (2,716)
--------- ---------
Accounts receivables, net....................................................... $ 32,367 $ 50,563
--------- ---------
--------- ---------
</TABLE>
Unbilled receivables primarily relate to sales recorded on standard products
which have been shipped, but have not yet been finally accepted by the
customer. The Company has no significant remaining obligations relating to
these unbilled receivables and collectibility is probable. The Company
believes that all of its unbilled receivables at September 30, 1998 will be
billed and collected during the next twelve months.
4. INVENTORIES
Inventories at September 30, 1998 and 1997 consisted of the following:
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
(IN THOUSANDS)
Raw materials................................................................... $ 17,124 $ 20,638
Work in process................................................................. 10,429 13,158
Finished goods.................................................................. 8,660 5,299
--------- ---------
Total....................................................................... $ 36,213 $ 39,095
--------- ---------
--------- ---------
</TABLE>
Inventory Provisions -- During the third and fourth quarters of fiscal 1998,
the Company took provisions of $4.5 million and $12.1 million, respectively,
primarily for excess and obsolete inventories related principally to its
semiconductor inspection and handling equipment. These provisions largely
reflected reduced demand of older generation products as a result of the
severe semiconductor industry downturn. These amounts have been recorded as
"inventory provisions" as part of the presentation of cost of sales in the
accompanying consolidated financial statements.
F-11
<PAGE>
5. INCOME TAXES
The components of income (loss) before income tax provision (benefit), for
the fiscal years ended September 30, 1998, 1997 and 1996 are as follows:
<TABLE>
<CAPTION>
1998 1997 1996
---------- --------- ---------
<S> <C> <C> <C>
(IN THOUSANDS)
Domestic................................................................ $ (36,758) 2,114 $ (118)
Foreign................................................................. (3,747) $ (721) $ (201)
---------- --------- ---------
Total............................................................... $ (40,505) $ 1,393 $ (319)
---------- --------- ---------
---------- --------- ---------
</TABLE>
The income tax provision (benefit) for the fiscal years ended September 30,
1998, 1997 and 1996 consisted of the following:
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
(IN THOUSANDS)
Current:
Federal............................................................ $ -- $ 737 $ 4,279
State.............................................................. -- 110 1,024
Foreign............................................................ -- (9) 38
Utilization of net operating loss carryforwards.................... -- -- (3,614)
--------- --------- ---------
-- 838 1,727
--------- --------- ---------
Deferred:
Federal............................................................ (18,044) 1,187 (3,802)
State.............................................................. (2,140) 246 (465)
Change in valuation allowance...................................... 20,184 (1,526) 1,386
--------- --------- ---------
-- (93) (2,881)
--------- --------- ---------
Total.......................................................... $ -- $ 745 $ (1,154)
--------- --------- ---------
--------- --------- ---------
</TABLE>
The income tax benefits related to the exercise of stock options reduces
taxes currently payable or increases net deferred tax assets, and is
credited to additional paid-in capital.
A reconciliation between the statutory U.S. Federal income tax rate and the
Company's effective tax rate for the fiscal years ended September 30, 1998,
1997 and 1996 is as follows:
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
U.S. Federal statutory rate................................................... (34.0)% 34.0% 34.0%
Increases (reductions) due to:
State taxes--net of Federal tax benefit................................... (4.0) 2.1 8.3
Utilization of net operating loss carryforwards........................... -- -- (42.1)
Anticipated future utilization of net operating loss carryforwards........ -- (13.7) (17.0)
Net operating loss not producing current tax benefits..................... 34.6 2.6 1.3
Exempt income of foreign sales corporation................................ (8.5) (0.3)
Worthless stock deduction relating to liquidation of foreign
subsidiaries............................................................ (8.5) --
Other--net................................................................ 3.4 0.8 2.6
--------- --------- ---------
Total................................................................. 0.0% 8.8% (13.2)%
--------- --------- ---------
--------- --------- ---------
</TABLE>
F-12
<PAGE>
5. INCOME TAXES (CONTINUED)
The net deferred tax asset at September 30, 1998, 1997 and 1996 is comprised
of the following:
<TABLE>
<CAPTION>
1998 1997 1996
---------- --------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Deferred Tax Assets (Liabilities):
- -------------------------------------------------------------------
Net operating loss carryforwards................................... $ 27,257 $ 12,117 $ 12,436
Tax credit carryforwards........................................... 2,315 2,655 2,853
Accrued liabilities................................................ 2,754 1,131 1,479
Inventories........................................................ 6,899 2,134 2,492
Receivables........................................................ 418 398 446
Property and equipment............................................. 361 (79) (292)
Merger expenses.................................................... 329 271 706
Software development costs......................................... (3,538) (2,043) (543)
Other.............................................................. 4 31 --
---------- --------- ----------
36,799 16,615 19,577
Less valuation allowance....................................... (27,979) (7,795) (11,422)
---------- --------- ----------
Total...................................................... $ 8,820 $ 8,820 $ 8,155
---------- --------- ----------
---------- --------- ----------
</TABLE>
As of September 30, 1998, the Company had U.S. Federal net operating loss
carryforwards of approximately $72,527 of which $30,420 are subject to
annual limitations because of the changes in ownership, as defined in the
Internal Revenue Code. Such loss carryforwards expire in the fiscal years
1999 through 2013. The utilization of the carryforwards to offset future tax
liabilities is dependent upon the Company's ability to generate sufficient
taxable income during the carryforward periods. The Company has recorded a
valuation allowance to reduce the net deferred tax asset to an amount that
management believes is more likely than not to be realized. The change in
the valuation allowance in fiscal 1998 relates primarily to the fiscal 1998
operating loss.
6. PLANT AND EQUIPMENT
Plant and equipment at September 30, 1998 and 1997 consisted of the
following:
<TABLE>
<CAPTION>
1998 1997
--------- ---------
(IN THOUSANDS)
<S> <C> <C>
Land............................................................................. $ 490 $ 490
Machinery and equipment.......................................................... 10,475 7,711
Furniture, fixtures and other equipment.......................................... 13,163 10,068
Demonstration equipment.......................................................... 7,531 7,334
Leasehold improvements........................................................... 2,492 1,940
--------- ---------
Total.................................................................... 34,151 27,543
Less accumulated depreciation and amortization................................... (16,560) (13,036)
--------- ---------
Plant and equipment--net................................................. $ 17,591 $ 14,507
--------- ---------
--------- ---------
</TABLE>
F-13
<PAGE>
7. OTHER ASSETS
Other assets at September 30, 1998 and 1997 consisted of the following:
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
(IN THOUSANDS)
Software development costs, net of accumulated amortization of $3,492 and $2,251,
respectively................................................................... $ 11,812 $ 7,233
License and non-competition agreement, net of amortization of $94................ 3,656 --
Other............................................................................ 1,618 1,435
--------- ---------
Total.................................................................... $ 17,086 $ 8,668
--------- ---------
--------- ---------
</TABLE>
Certain software development costs totaling $7,397, $4,842 and $2,630 have
been capitalized during the fiscal years ended September 30, 1998, 1997 and
1996 respectively. Amortization expense relating to software development
costs for the fiscal years ended September 30, 1998, 1997, and 1996 was
$2,072, $962 and $551, respectively.
8. ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES
Accrued expenses and other current liabilities at September 30, 1998 and
1997 consisted of the following:
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
(IN THOUSANDS)
Accrued wages and related employee benefits..................................... $ 5,948 $ 5,198
Accrued sales commissions....................................................... 5,468 4,028
Accrued warranty and other product related costs................................ 2,826 2,666
Accrued severance and non-recurring charges..................................... 2,099 --
Other........................................................................... 4,732 7,731
--------- ---------
Total................................................................... $ 21,073 $ 19,623
--------- ---------
--------- ---------
</TABLE>
Non-recurring charges -- During fiscal 1998, the Company took multiple steps
to reduce its expenses and to lower the level of revenues necessary for
break-even results of operations. These steps include a 10% workforce reduction
in April 1998, a 15% workforce reduction in June 1998 and an additional 16%
workforce reduction in September 1998, as well as curtailing discretionary
spending and capital expenditures. In June 1998, the Company combined its Acuity
2-D machine vision operations with its CiMatrix 1-D and 2-D barcode reading and
data collection operations. Primarily as a result of these steps, the Company
took a total of $6.6 million in non-recurring charges in fiscal 1998, including
$3.8 million for severance payments to approximately 400 terminated employees
(all of whom were terminated prior to September 30, 1998), $1.5 million for
costs associated with changing distributors in Asia, a $1.1 million non-cash
write-down of previously capitalized software costs associated with currently
inactive products and $0.2 million in costs associated with the consolidation of
Acuity and CiMatrix operations.
F-14
<PAGE>
8. ACCRUED EXPENSES AND OTHER CURRENT LIABILITIES (CONTINUED)
The components of the non-recurring charges, related fiscal 1998
expenditures and remaining liability at September 30, 1998 are detailed
below:
<TABLE>
<CAPTION>
COSTS EXPENDITURES LIABILITY
--------- ------------- -----------
(IN THOUSANDS)
<S> <C> <C> <C>
Severance payments to employees............................... $ 3,787 $ 2,403 $ 1,389
Write-off of software development costs....................... 1,113 1,113 --
Costs for changes in Asia distributors........................ 1,500 1,000 500
Costs to consolidate Acuity CiMatrix operations............... 215 -- 215
--------- ------ -----------
Total....................................................... $ 6,615 $ 4,516 $ 2,099
--------- ------ -----------
--------- ------ -----------
</TABLE>
The Company expects that the balance at September 30, 1998 will be paid
during fiscal 1999.
9. NOTES PAYABLE AND LONG-TERM DEBT
Notes payable and long-term debt at September 30, 1998 and 1997 consisted of
the following:
<TABLE>
<CAPTION>
1998 1997
---------- ----------
<S> <C> <C>
(IN THOUSANDS)
Lines of credit with domestic banks (a)....................................... $ 37,500 $ 6,589
Term loan with domestic bank (a).............................................. -- 7,600
Subordinated note payable (b)................................................. 2,250 --
Note payable (c).............................................................. -- 2,000
Other borrowings.............................................................. 1,347 848
---------- ----------
Total notes payable and long-term debt................................ 41,097 17,037
Less notes payable and current portion of long-term debt...................... (38,038) (10,623)
---------- ----------
Long-term debt................................................................ $ 3,059 $ 6,414
---------- ----------
---------- ----------
</TABLE>
a. In March 1998, the Company entered into a new $37,500 revolving credit
agreement with three domestic banks, which replaced $19,500 in existing
lines of credit and $6,900 outstanding under a term loan. The new
agreement has a two-year term and bears interest at either the prime rate
or LIBOR. At September 30, 1998, the interest rate was the prime rate of
8.25%. Borrowings are collateralized by substantially all of the domestic
tangible and intangible assets of the Company. The agreement, among other
things, contains certain financial covenants, including minimum levels of
profitability, liquidity and net worth, with which the Company has not
been in compliance. The banks have waived all instances of noncompliance
through January 29, 1999; however, absent continuation of the waivers,
the Company will be in noncompliance at the expiration of the waiver
period. Accordingly, borrowings under the agreement at September 30,
1998, have been classified as current. The Company is working with its
banks to modify the revolving credit agreement.
b. The subordinated note payable to General Scanning matures in June 2003,
bears interest at prime (8.25% at September 30, 1998) and is payable in
equal quarterly installments of $281 commencing September 12, 2001.
c. The note payable for $2,000 was with a related party supplier of
Vanguard, with interest at prime. This note was repaid in June 1998.
F-15
<PAGE>
10. EMPLOYEE BENEFIT PLANS
DEFINED BENEFIT PLAN--The Company has a noncontributory pension plan for
employees who meet certain minimum eligibility requirements. The level of
retirement benefit is based on a formula which considers both employee
compensation and length of credited service.
Plan assets are invested in pooled bank investment accounts, and the fair
value of such assets is based on the quoted market prices of underlying
securities in such accounts. The Company funds pension plan costs based on
minimum and maximum funding criteria as determined by independent actuarial
consultants.
The components of net pension cost for the fiscal years ended September 30,
1998, 1997 and 1996 are summarized as follows:
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
(IN THOUSANDS)
Service cost--benefits earned during the period........................................... $ 286 $ 272 $ 219
Interest on projected benefit obligations................................................. 164 135 97
Estimated return on plan assets........................................................... (167) (117) (81)
Other--amortizaiton of actuarial gains and net transition asset........................... (12) (15) (23)
--------- --------- ---------
Net pension cost.................................................................. $ 271 $ 275 $ 212
--------- --------- ---------
--------- --------- ---------
</TABLE>
The funded status of the plan compared with the accrued expense included in
the Company's consolidated balance sheet at September 30, 1998 and 1997 is as
follows:
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
(IN THOUSANDS)
Fair value of plan assets...................................................................... $ 2,254 $ 1,664
--------- ---------
Actuarial present value of benefit obligation:
Accumulated benefit obligation including vested benefits of $1,753 and $1,329 in 1998 and
1997 respectively........................................................................ 2,049 1,647
Effect of projected compensation increases................................................. 570 554
--------- ---------
Projected benefit obligation for services rendered to date................................. 2,619 2,201
--------- ---------
Projected benefit obligation in excess of plan assets...................................... (365) (537)
Unrecognized net loss...................................................................... 162 358
Remaining unrecognized net transition asset being amortized over 11 years.................. -- (14)
Unrecognized prior service costs........................................................... 14 23
--------- ---------
Accrued pension costs included in accrued expenses..................................... $ (189) $ (170)
--------- ---------
--------- ---------
</TABLE>
Significant assumptions used in determining net periodic pension cost and
related pension obligations are as follows:
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
Discount rate.................................................................................. 7.25% 7.50%
Rate of compenstation increase................................................................. 4.00% 4.00%
Expected long-term rate of return on assets.................................................... 8.25% 8.25%
</TABLE>
DEFINED CONTRIBUTION PLANS (in thousands)--The Company has four defined
contribution plans (the "Plans") for all eligible employees, as defined by the
Plans. The Company made matching employer contributions at various percentages
in accordance with the respective plan documents. The
F-16
<PAGE>
10. EMPLOYEE BENEFIT PLANS (CONTINUED)
Company incurred $747, $604 and $338 for matching employer contributions to the
Plans in 1998, 1997 and 1996, respectively.
11. COMMITMENTS AND CONTINGENCIES
OPERATING LEASES--The Company has entered into operating lease agreements
for equipment, and manufacturing and office facilities. The minimum
noncancelable scheduled rentals under these agreements are as follows (in
thousands):
<TABLE>
<CAPTION>
FISCAL YEAR ENDING SEPTEMBER 30: FACILITIES EQUIPMENT TOTAL
- -------------------------------------------------------------------------------- --------- ------------- ---------
<S> <C> <C> <C>
1999............................................................................ $ 2,813 $ 187 $ 3,000
2000............................................................................ 2,696 111 2,807
2001............................................................................ 1,767 32 1,799
2002............................................................................ 1,375 -- 1,375
2003............................................................................ 1,210 -- 1,210
Thereafter...................................................................... 7,140 -- 7,140
--------- ----- ---------
Total........................................................................... $ 17,001 $ 330 $ 17,331
--------- ----- ---------
--------- ----- ---------
</TABLE>
Rent expense for the fiscal years ended September 30, 1998, 1997 and 1996
was $3,305, $3,015 and $2,283, respectively.
On January 6, 1997, the lessor of SEP's manufacturing facility assigned the
lease to the former majority shareholder of SEP, in conjunction with the sale of
this facility to the former majority shareholder. In addition, the lease was
amended to include certain capital equipment owned by the former majority
shareholder. SEP began leasing this facility during fiscal 1996. The base annual
rental payable under the lease is $605. The lease expires in October 2011.
LITIGATION--The Company, as plaintiff, was a party to an action initiated by
the Company in the United States District Court for the Eastern District of New
York against defendant Cybo Systems, Inc. ("Cybo"), entitled Robotic Vision
Systems, Inc. v. Cybo Systems, Inc. a/k/a Cybot Systems, Inc., alleging certain
contractual breaches by Cybo arising from the Company's sale to Cybo of the
Company's welding and cutting systems business. In October 1998, this action,
including all of Cybo's remaining counterclaims against the Company, was
dismissed with prejudice by mutual agreement of the Company and Cybo and without
any payment by either party to the other, following a partial summary judgment
ruling by the Court that had dismissed substantially all of Cybo's counterclaims
against the Company.
In June 1998, RVSI and General Scanning executed a settlement agreement of
RVSI's claims arising out of General Scanning's acquisition of View Engineering,
Inc. in August 1996, RVSI claimed that General Scanning used improperly obtained
information in connection with the acquisition. General Scanning denied all such
claims. Under the settlement agreement, General Scanning has agreed not to
compete for ten years in the inspection of interconnect leads of semiconductor
packages. Under the settlement, General Scanning licensed to RVSI its 2-D and
3-D vision technology solely and exclusively for RVSI's use in the
interconnection leads. In consideration for the technology license and
non-competition agreement, RVSI agreed to pay General Scanning $3.75 million, of
which $1.50 million represents 271,493 shares of the Company's common stock and
$2.25 million in a subordinated note payable with a maturity date of five years.
The Company, as plaintiff, was a party to two actions in the United States
District Court for the Central District of California against View Engineering,
Inc. ("View"), a wholly owned subsidiary of General Scanning, Inc. ("GSI"),
alleging infringement by View of a number of the Company's patents
F-17
<PAGE>
11. COMMITMENTS AND CONTINGENCIES (CONTINUED)
relating to View's assembly and distribution of View's own 3-D machine vision
products. In June 1998, the Court, in the first of these actions, involving the
coplanarity inspection of ball grid array semiconductor package substrates,
found infringement by View and granted the Company's request for injunctive
relief against View. This ruling has been appealed by View to the United States
Appeals Court for the Federal Circuit. The second of these actions, involving
the "in-tray" inspection of semiconductor packages is presently expected to come
to trial in the spring of 1999.
The Company is also presently involved in other litigation matters in the
normal course of business. Based upon discussion with Company's legal counsel,
management does not expect that these matters will have a material adverse
impact on the Company's consolidated financial statements.
12. STOCKHOLDERS' EQUITY
WARRANTS OUTSTANDING--As of September 30, 1998, there were warrants
outstanding to purchase approximately 376,000 shares of the Company's common
stock with exercise prices ranging between $2.57 and $25.00 per share.
STOCK OPTION PLANS--The Company has several stock option plans which provide
for the granting of options to employees or directors at prices and terms as
determined by the Board of Directors' Stock Option Committee. Such options vest
over a period of three to five years. All options issued by the Company to date
have exercise prices which were equal to market value of the Company's common
stock at the date of grant.
Shares granted and canceled during fiscal 1998 include a stock option
re-pricing offered by the Company to existing stock option holders of
unexercised options of each of the Company's stock option plans, excluding
members of the Board of Directors and certain corporate officers. Options
granted prior to June 26, 1998 were eligible for replacement under the terms of
the stock option re-pricing. At their election, stock option holders could
surrender their unexercised stock options for a proportionately lower amount of
stock options, based on a formula, at an exercise price of $4.13 per share, the
fair value of the Company's common stock on June 26, 1998. A total of
approximately 2,169,000 options, with exercise prices ranging from $5.19 per
share to $19.50 per share, were canceled, and approximately 1,446,000 options
were reissued at an exercise price of $4.13 per share. Reissued stock options
vest 40% on the six-month anniversary of the replacement date and 60% on the
date specified in the original option grant. The expiration date of these
reissued options are as specified in the original option grant.
Shares granted and canceled during 1997 include a stock option re-pricing
offered by the Company to existing stock option holders of unexercised options
of each of the Company's stock option plans. All options that were granted prior
to July 9, 1997 were eligible for replacement. In their election, stock option
holders could surrender their unexercised stock options for a proportionately
lower amount of stock options, based upon a formula, at an exercise of $14.13,
the fair value of the Company's common stock on July 22, 1997. A total of
approximately 1,196,000 options with exercise prices ranging from $14.52 to
$26.75 were canceled, and approximately 930,000 options were reissued at an
exercise price of $14.13 per share. Reissued options vest 20 percent on the
six-month anniversary of the replacement date; 20 percent on the one-year
anniversary of the replacement date; and 20 percent annually thereafter until
fully vested. The options expire on July 22, 2002. For directors and officers of
the Company, the options will not become exercisable until the earlier of seven
years from the replacement date or until the market value of the Company's
common stock reaches the exercise price of the originally replaced option.
F-18
<PAGE>
12. STOCKHOLDERS' EQUITY (CONTINUED)
The following table sets forth summarized information concerning the
Company's stock options:
<TABLE>
<CAPTION>
NUMBER OF EXERCISE
SHARES PRICE RANGE
----------- ---------------
<S> <C> <C>
(IN THOUSANDS)
Options outstanding for shares of common stock at October 1, 1995.................... 1,841 $ 0.53-$38.72
Granted.......................................................................... 1,843 7.71- 26.75
Canceled or expired.............................................................. (225) 1.00- 22.50
Exercised........................................................................ (498) 0.53- 17.43
-----------
Options outstanding for shares of common stock at September 30, 1996................. 2,961 0.53- 38.72
Granted.......................................................................... 2,660 7.71- 19.00
Canceled or expired.............................................................. (1,636) 0.81- 38.72
Exercised........................................................................ (293) 0.53- 15.34
-----------
Options outstanding for shares of common stock at September 30, 1997................. 3,692 0.75- 34.42
Granted.......................................................................... 2,943 3.19- 16.94
Canceled or expired.............................................................. (2,926) 2.20- 34.42
Exercised........................................................................ (138) 0.75- 10.00
-----------
Options outstanding for shares of common stock at September 30, 1998................. 3,571 1.00- 19.38
-----------
-----------
Shares reserved for issuance at September 30, 1998................................... 1,607
-----------
-----------
</TABLE>
Weighted average option exercise price information for the fiscal years
ended September 30, 1998, 1997 and 1996 was as follows:
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
Outstanding at beginning of year..................................................... $ 11.08 $ 12.14 $ 4.27
Granted during the year.............................................................. 6.68 12.86 17.94
Exercised during the year............................................................ 2.36 4.14 2.09
Canceled, terminated and expired..................................................... 11.88 16.51 16.06
Exercisable at year end.............................................................. 7.12 5.86 4.52
</TABLE>
The Company applies Accounting Principles Board Opinion No. 25, "Accounting
For Stock Issued To Employees", and related interpretations in accounting for
its option plans. Accordingly, as all options have been granted at exercise
prices equal to fair market value on the date of grant, no compensation expense
has been recognized by the Company in connection with its stock-based
compensation plans. Had compensation cost for the Company's stock option plans
been determined based upon the fair value at the grant date for awards under
these plans consistent with the methodology prescribed under Statement of
Financial Accounting Standards No. 123, "Accounting For Stock-Based
Compensation", the Company's net income (loss) and earnings per share would have
been reduced (increased) by approximately $(5,961,000), $5,032,000 and
$2,420,000 or $(0.24), $0.21 and $0.11 per share in fiscal 1998, 1997 and 1996,
respectively. The weighted average fair value of the options granted during
fiscal 1998, 1997 and 1996 is estimated at $3.99, $7.44 and $9.76 on the date of
grant (using Black-Scholes option pricing model) with the following weighted
average assumptions for fiscal 1998, 1997 and 1996, respectively: volatility of
70%, 64% and 56%, risk-free interest rate of 4.30%, 5.83% and 5.81%, and an
expected life of five years in fiscal 1998, 1997 and 1996.
F-19
<PAGE>
13. SELECTED QUARTERLY FINANCIAL DATA (UNAUDITED)
For the fiscal years ended September 30, 1998 and 1997:
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
1998
------------------------------------------
<S> <C> <C> <C> <C>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
--------- --------- --------- ---------
Revenues.............................................................. $ 53,788 $ 47,727 $ 39,090 $ 28,402
Gross profit.......................................................... 26,043 21,041 10,919 (2,001)
Net income (loss)..................................................... 3,543 (5,672) (15,433) (22,943)
Net income (loss) per share:
Basic and diluted................................................. 0.14 (0.23) (0.63) (0.92)
</TABLE>
<TABLE>
<CAPTION>
1997
------------------------------------------
<S> <C> <C> <C> <C>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
--------- --------- --------- ---------
Revenues.............................................................. $ 38,734 $ 35,755 $ 41,789 $ 53,064
Gross profit.......................................................... 17,357 15,192 19,681 23,265
Net income (loss)..................................................... (294) (767) (762) 2,471
Net income (loss) per share:
Basic and diluted................................................. (0.01) (0.03) (0.03) 0.1
</TABLE>
During fiscal 1998, the Company took inventory provisions of $4,500 in the
third quarter and $12,062 in the fourth quarter, which reduced gross profit. The
Company also had non-recurring charges of $3,184 in the second quarter, $2,420
in the third quarter and $1,011 in the fourth quarter of fiscal 1998.
14. MAJOR CUSTOMERS AND CREDIT CONCENTRATIONS
During fiscal 1998, 1997 and 1996, revenues from a single customer
represented 20%, 23% and 13% of total revenues, respectively. No other customer
accounted for more than 10% of total revenues for fiscal 1998, 1997 and 1996.
15. GEOGRAPHIC OPERATIONS
For the purposes of segment reporting, management considers the Company to
operate in one industry, the machine vision industry. Operations in this
business segment by geographic area are summarized as follows (in thousands):
<TABLE>
<CAPTION>
UNITED
FISCAL YEAR ENDED SEPTEMBER 30, 1998 STATES EUROPE ELIMINATIONS CONSOLIDATED
- ------------------------------------------------------------ ------------ --------- ------------ ------------
<S> <C> <C> <C> <C>
Revenues from unaffiliated customers........................ $ 154,451 $ 14,556 -- $ 169,007
Transfers between geographic areas.......................... 4,852 -- $ (4,852) --
------------ --------- ------------ ------------
Total revenues.............................................. $ 159,303 $ 14,556 $ (4,852) $ 169,007
------------ --------- ------------ ------------
------------ --------- ------------ ------------
Income (loss) before income tax provision (benefit)......... $ (36,529) $ (3,747) $ (229) $ (40,505)
------------ --------- ------------ ------------
------------ --------- ------------ ------------
Identifiable assets......................................... $ 123,312 $ 7,979 $ (9,720) $ 121,571
------------ --------- ------------ ------------
------------ --------- ------------ ------------
</TABLE>
F-20
<PAGE>
15. GEOGRAPHIC OPERATIONS (CONTINUED)
<TABLE>
<CAPTION>
UNITED
FISCAL YEAR ENDED SEPTEMBER 30, 1997 STATES EUROPE ELIMINATIONS CONSOLIDATED
- ------------------------------------------------------------ ------------ --------- ------------ ------------
<S> <C> <C> <C> <C>
Revenues from unaffiliated customers........................ $ 152,530 $ 16,812 $ -- $ 169,342
Transfers between geographic areas.......................... 4,611 -- (4,611) --
------------ --------- ------------ ------------
Total revenues.............................................. $ 157,141 $ 16,812 $ (4,611) $ 169,342
------------ --------- ------------ ------------
------------ --------- ------------ ------------
Income (loss) before income tax provision................... $ 2,120 $ (721) $ (6) $ 1,393
------------ --------- ------------ ------------
------------ --------- ------------ ------------
Identifiable assets on September 30, 1997................... $ 136,448 $ 8,451 $ (4,976) $ 139,923
------------ --------- ------------ ------------
------------ --------- ------------ ------------
</TABLE>
<TABLE>
<CAPTION>
UNITED
FISCAL YEAR ENDED SEPTEMBER 30, 1996 STATES EUROPE ELIMINATIONS CONSOLIDATED
- ------------------------------------------------------------ ------------ --------- ------------ ------------
<S> <C> <C> <C> <C>
Revenues from unaffiliated customers........................ $ 137,749 $ 16,226 $ -- $ 153,975
Transfers between geographic areas.......................... 4,128 240 (4,368) --
------------ --------- ------------ ------------
Total revenues.............................................. $ 141,877 $ 16,466 $ (4,368) $ 153,975
------------ --------- ------------ ------------
------------ --------- ------------ ------------
Income (loss) before income tax provision................... $ (187) $ (201) $ 69 $ 319)
------------ --------- ------------ ------------
------------ --------- ------------ ------------
Identifiable assets on September 30, 1997................... $ 108,529 $ 7,085 $ (8,143) $ 107,471
------------ --------- ------------ ------------
------------ --------- ------------ ------------
</TABLE>
Total revenues to customers outside the U.S. were $108,711, $115,854 and
$97,483 for the fiscal years ended September 30, 1998, 1997 and 1996,
respectively.
Export sales from the Company's United States operations to unaffiliated
customers for the fiscal years ended September 30, 1998, 1997 and 1996 were as
follows:
<TABLE>
<CAPTION>
1998 1997 1996
--------- --------- ---------
<S> <C> <C> <C>
Europe........................................................................... $ 7,501 $ 16,413 $ 9,160
Asia/Pacific Rim................................................................. 84,606 80,714 70,924
Other............................................................................ 2,048 1,915 1,173
--------- --------- ---------
Total............................................................................ $ 94,155 $ 99,042 $ 81,257
--------- --------- ---------
--------- --------- ---------
</TABLE>
16. EARNINGS PER SHARE
The calculations for earnings per share for the fiscal years ended September
30, 1998, 1997 and 1996 are as follows (in thousands, except per share amounts):
<TABLE>
<CAPTION>
1998 1997 1996
---------- --------- ---------
<S> <C> <C> <C>
Net income (loss)............................................................... $ (40,505) $ 648 $ 835
---------- --------- ---------
---------- --------- ---------
Weighted average number of common shares--basic................................. 24,613 23,718 22,092
Assumed number of shares issued from common share equivalents................... -- 249 1,293
---------- --------- ---------
Weighted average number of common and common equivalent
shares--diluted................................................................ 24,613 23,967 23,385
---------- --------- ---------
---------- --------- ---------
Net income (loss) per share--basic.............................................. $ (1.65) $ 0.03 $ 0.04
---------- --------- ---------
---------- --------- ---------
Net income (loss) per share--diluted............................................ $ (1.65) $ 0.03 $ 0.04
---------- --------- ---------
---------- --------- ---------
</TABLE>
F-21
<PAGE>
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(IN THOUSANDS)
<TABLE>
<CAPTION>
COLUMN C
-----------
COLUMN A COLUMN B ADDITION COLUMN E
----------- ----------- CHARGED TO COLUMN D -----------
BALANCE AT CHARGED TO OTHER ----------- BALANCE
BEGINNING COST AND ACCOUNTS DEDUCTIONS AT END OF
DESCRIPTIONS OF PERIOD EXPENSES -DESCRIBE -DESCRIBE PERIOD
- ---------------------------------------------------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Year Ended September 30, 1998:
Allowance for doubtful accounts................. $ 2,716 $ 329 $ -- $ 2,045(2) $ 1,000
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
Reserve for excess and obsolete inventory....... $ 3,836 $ 16,562 $ -- $ 5,657(2) $ 14,741
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
Year Ended September 30, 1997:
Allowance for doubtful accounts................. $ 1,400 $ 1,924 $ -- $ 608(2) $ 2,716
----------- ----------- ----------- ----------- -----------
Reserve for excess and obsolete inventory....... $ 3,960 $ 1,435 $ -- $ 1,559(2) $ 3,836
----------- ----------- ----------- ----------- -----------
Year Ended September 30, 1996:
Allowance for doubtful accounts................. $ 544 $ 957 $ 6(1) $ 107(2) $ 1,400
----------- ----------- ----------- ----------- -----------
Reserve for excess and obsolete inventory....... $ 1,057 $ 3,052 $ -- $ 149(2) $ 3,960
----------- ----------- ----------- ----------- -----------
</TABLE>
- ------------------------
(1) Recoveries of accounts written off.
(2) Amounts written off.
F-22
<PAGE>
EX-10.(a)
CREDIT AGREEMENT,
dated as of March 18, 1998,
by and among
ROBOTIC VISION SYSTEMS, INC.,
THE LENDERS PARTY HERETO,
AND
THE BANK OF NEW YORK, AS ADMINISTRATIVE AGENT
BNY CAPITAL MARKETS, INC.,
AS ARRANGER
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION .................... 1
1.1. Definitions .................................................... 1
1.2. Accounting Terms ............................................... 19
1.3. Rules of Interpretation ........................................ 19
ARTICLE 2. AMOUNT AND TERMS OF REVOLVING LOANS ........................ 20
2.1. Revolving Loans ................................................ 20
2.2. Procedure for Borrowing ........................................ 20
2.3. Termination and Reduction of Revolving
Commitments ...................................................... 22
2.4. Prepayments of the Revolving Loans ............................. 22
2.5. Payments; Pro Rata Treatment and Sharing of
Set-offs ......................................................... 24
ARTICLE 3. INTEREST, FEES, YIELD PROTECTIONS, ETC ..................... 25
3.1. Interest Rate and Payment Dates ................................ 25
3.2. Fees ........................................................... 26
3.3. Conversions .................................................... 27
3.4. Concerning Interest Periods .................................... 28
3.5. Funding Loss ................................................... 29
3.6. Increased Costs; Illegality, etc. .............................. 29
3.7. Taxes .......................................................... 31
3.8. Changes of Lending Offices ..................................... 32
3.9. Records ........................................................ 33
ARTICLE 4 REPRESENTATIONS AND WARRANTIES .............................. 33
4.1. Organization and Power ......................................... 33
4.2. Authorization; Enforceability .................................. 33
4.3. Approvals; No Conflicts ........................................ 34
4.4. Financial Condition; No Material Adverse Change ................ 34
4.5. Properties ..................................................... 34
4.6. Litigation ..................................................... 35
4.7. Environmental Matters .......................................... 35
4.8. Compliance with Laws and Agreements; No Default ................ 36
4.9. Investment Companies and other Regulated
Entities ......................................................... 36
4.10. Federal Reserve Regulations ................................... 36
4.11. ERISA ......................................................... 36
4.12. Taxes ......................................................... 37
4.13. Subsidiaries .................................................. 37
4.14. Absence of Certain Restrictions ............................... 37
4.15. Labor Relations ............................................... 37
4.16. Insurance ..................................................... 37
4.17. No Misrepresentation .......................................... 38
ARTICLE 5. CONDITIONS PRECEDENT TO THE INITIAL REVOLVING
LOANS .......................................................... 38
5.1. Evidence of Action ............................................. 38
5.2. This Agreement ................................................. 39
</TABLE>
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<TABLE>
<S> <C>
5.3. Notes .......................................................... 39
5.4. Opinion of Counsel to the Loan Parties ......................... 39
5.5. Terminating Bank Debt .......................................... 39
5.6. Security Documents, Search Reports, etc ........................ 39
5.7. Financial Officer's Certificate ................................ 40
5.8. Approvals ...................................................... 40
5.9. Property, Public Liability and Other Insurance ................. 41
5.10. Fees and Expenses ............................................. 41
5.11. Other Documents ............................................... 41
ARTICLE 6. CONDITIONS PRECEDENT TO EACH REVOLVING LOAN ................ 41
6.1. Compliance ..................................................... 41
6.2. Borrowing Request .............................................. 42
6.3. Law ............................................................ 42
ARTICLE 7. AFFIRMATIVE COVENANTS ...................................... 42
7.1. Financial Statements and Information ........................... 42
7.2. Notice of Material Events ...................................... 44
7.3. Existence; Conduct of Business ................................. 45
7.4. Payment of Obligations ......................................... 45
7.5. Maintenance of Properties ...................................... 45
7.6. Insurance ...................................................... 45
7.7. Books and Records: Inspection Rights ........................... 45
7.8. Compliance with Laws ........................................... 46
7.9. Additional Subsidiaries ........................................ 46
7.10. Additional Collateral ......................................... 47
ARTICLE 8. NEGATIVE COVENANTS ......................................... 47
8.1. Indebtedness ................................................... 47
8.2. Negative Pledge ................................................ 49
8.3. Fundamental Changes ............................................ 50
8.4. Investments, Loans, Advances and Guarantees .................... 51
8.5. Acquisitions ................................................... 51
8.6. Dispositions ................................................... 52
8.7. Restricted Payments ............................................ 53
8.8. Hedging Agreements ............................................. 53
8.9. Sale and Lease-Back Transactions ............................... 53
8.10. Lines of Business ............................................. 54
8.11. Transactions with Affiliates .................................. 54
8.12. Use of Proceeds ............................................... 54
8.13. Restrictive Agreements ........................................ 54
8.14. Financial Covenants ........................................... 54
ARTICLE 9. DEFAULTS ................................................... 56
9.1. Events of Default .............................................. 56
9.2. Contract Remedies .............................................. 57
ARTICLE 10. THE ADMINISTRATIVE AGENT .................................. 59
10.1. Appointment ................................................... 59
10.2. Individual Capacity ........................................... 59
10.3. Exculpatory Provisions ........................................ 59
10.4. Reliance by Administrative Agent .............................. 60
</TABLE>
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<TABLE>
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10.5. Reliance by Administrative Agent .............................. 60
10.6. Resignation; Successor Administrative Agent ................... 60
10.7. Non-Reliance on Other Credit Parties .......................... 61
ARTICLE 11. OTHER PROVISIONS .......................................... 61
11.1. Amendments and Waivers ........................................ 61
11.2. Notices ....................................................... 62
11.3. Survival ...................................................... 63
11.4. Expenses; Indemnity ........................................... 63
11.5. Successors and Assigns ........................................ 64
11.6. Counterparts; Integration ..................................... 65
11.7. Severability .................................................. 66
11.8. Judgment Currency ............................................. 66
11.9. International Banking Facilities .............................. 66
11.10. Governing Law ................................................ 67
11.11. Jurisdiction; Service of Process ............................. 67
11.12. WAIVER OF TRIAL BY JURY ...................................... 67
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
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Exhibit A Form of Note
Exhibit B Form of Borrowing Request
Exhibit C Form of Notice of Conversion
Exhibit D Form of Compliance Certificate
Exhibit E Form of Opinion of Counsel to the Borrower and its Subsidiaries
Exhibit F Form of Intercompany Subordination Agreement
Exhibit G Form of Assignment and Acceptance Agreement
Exhibit H Form of Security Agreement
Exhibit I Form of Subsidiary Guaranty
Exhibit J List of Agent Payment Offices
Exhibit K List of Borrower Payment Accounts
Exhibit L Form of Intercompany Note
SCHEDULES
Schedule 4.6 List of Litigation
Schedule 4.7 Environmental Matters
Schedule 4.13 List of Subsidiaries; Capitalization
Schedule 4.16 List of Insurance
Schedule 8.1 List of Existing Indebtedness
Schedule 8.2 List of Existing Liens
Schedule 8.4 List of Existing Investments
Schedule 8.13 List of Restrictive Agreements
</TABLE>
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<PAGE>
CREDIT AGREEMENT, dated as of March 18, 1998, by and among ROBOTIC VISION
SYSTEMS, INC., a Delaware corporation (the "Borrower"), the several banks and
other parties from time to time parties hereto (the "Lenders") and THE BANK OF
NEW YORK ("BNY"), as administrative agent for each of the other Credit Parties
hereto (in such capacity, the "Administrative Agent").
ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION
1.1. Definitions
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR Advances" means the Dollar Loans (or any portions thereof), at
such time as they (or such portions) are made and/or being maintained at a rate
of interest based upon the Alternate Base Rate.
"Accountants" means Deloitte & Touche, LLP (or any successor
thereto), or such other firm of certified public accountants of recognized
national standing selected by the Borrower and reasonably satisfactory to the
Administrative Agent.
"Acquisition" has the meaning set forth in Section 8.5.
"Additional Pledge Agreement" has the meaning set forth in Section
7.9.
"Advance" means, as to any Dollar Loan, an ABR Advance or a
Eurodollar Advance.
"Affiliate" means as to any Person any other Person at the time
directly or indirectly controlling, controlled by or under direct or indirect
common control with such Person. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, either to (i) vote 5% or more of
the securities having ordinary voting power for the election of directors of
such Person or (ii) direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"Agent Payment Office" means, with respect to all amounts owing (i)
under the Loan Documents (other than in respect of Alternate Currency Loans),
initially, the office, branch, affiliate, or correspondent bank of the
Administrative Agent designated as its "Domestic Payment Office" in Exhibit J
and, thereafter, such other office, branch, affiliate, or correspondent bank
thereof as it may from time to time designate in writing as such to the Borrower
and each Lender, and (ii) in respect of each Alternate Currency Loan, initially,
the office, branch, affiliate, or correspondent bank of the Administrative Agent
designated as its payment office for the applicable Alternate Currency in
Exhibit J and, thereafter, such other office, branch, affiliate, or
correspondent bank thereof as it may from time to time designate in writing as
such to the Borrower and each Lender.
"Aggregate Revolving Commitment" means, at any time, the sum at such
time of the Revolving Commitments of all Lenders.
<PAGE>
"Aggregate Credit Exposure" means, at any time, the sum at such time
of the outstanding principal amount of the Revolving Loans of all Lenders
(determined, in the case of each Alternate Currency Loan, on the basis of the
Dollar Equivalent thereof).
"Agreement" means this Credit Agreement.
"Alternate Base Rate" means on any date, a rate of interest per
annum equal to the higher of (i) the Federal Funds Effective Rate in effect on
such date plus 1/2 of 1 % or (ii) the Prime Rate in effect on such date.
"Alternate Currency" means any Currency (other than Dollars).
"Alternate Currency Equivalent" means, on any date of determination
thereof, the amount, as determined by the Administrative Agent, of the relevant
Alternate Currency which could be purchased with the amount of Dollars involved
in such computation at the spot rate at which such Alternate Currency may be
exchanged into Dollars as set forth on such date on Dow Jones Telerate page 262
(or any successor page) or, if such rate does not appear on such page, at the
arithmetic mean of the respective spot exchange rates therefor notified to the
Administrative Agent by BNY as of 11:00 a.m. (London time) on such date for
delivery two Euro Business Days later.
"Alternate Currency Euro Rate" means with respect to each Alternate
Currency Loan, a rate of interest per annum, as determined by the Administrative
Agent, obtained by dividing (and then rounding to the nearest 1/100 of 1% or, if
there is no nearest 1/100 of 1%, then to the next higher 1/100 of 1%):
(a)(i) the rate per annum for deposits in the applicable
Alternate Currency having a maturity most nearly comparable to the Interest
Period in respect of such Alternate Currency Loan which appears on page 3740 or
3750, or any other applicable page with respect to such Alternate Currency, of
the Dow Jones Telerate Screen (or any successor page) as of 11:00 a.m. London
time on the date which is two Euro Business Days prior to the first day of such
Interest Period, (ii) if such rate does not appear on page 3740 or 3750 of the
Dow Jones Telerate Screen (or any successor page), the rate, as reported by BNY
to the Administrative Agent, quoted by BNY at approximately 11:00 a.m. London
time (or as soon thereafter as practicable) on the date which is two Euro
Business Days prior to the first day of such Interest Period to leading banks in
the interbank eurocurrency market as the rate at which BNY is offering deposits
in such Alternate Currency in an amount approximately equal to BNY's Commitment
Percentage of such Alternate Currency Loan and having a period to maturity
approximately equal to such Interest Period, or (iii) to the extent required by
Section 3.6(d), the rate, as reported by BNY to the Administrative Agent,
determined by BNY to be reflective of the all-in cost of funds to BNY of funding
such Alternate Currency Loan in an amount approximately equal to its Commitment
Percentage of such Alternate Currency Loan and having a period to maturity
approximately equal to such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then
stated maximum rates during such Interest Period of all reserve requirements
(including marginal, emergency, supplemental and special reserves), expressed as
a decimal, established by the Board and any other banking authority to which BNY
and other major money center banks chartered under the laws of the United States
or any State thereof are
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subject, in respect of eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D) without benefit of credit for
proration, exceptions or offsets which may be available from time to time to
BNY.
"Alternate Currency Loan" means each Revolving Loan made in an
Alternate Currency.
"Applicable Margin" means, with respect to Eurodollar Advances and
Alternate Currency Loans, (i) at all times when the Leverage Ratio is greater
than or equal to 1.00:1.00, 1.00%, and (ii) at all times when the Leverage Ratio
is less than 1.00:1.00, 0.75%. Changes in the Applicable Margin resulting from a
change in the Leverage Ratio shall be based upon the Compliance Certificate most
recently delivered pursuant to Section 7.1(c) and shall become effective on the
date such Compliance Certificate is delivered to the Administrative Agent and
the Lenders. Notwithstanding anything to the contrary contained in this
definition, (i) if, at any time and from time to time, the Borrower shall be in
Default of its obligations under Section 7.1(c), the Applicable Margin shall be
1.00% until such Default is cured, and (ii) subject to clause (i) of this
sentence, during the period commencing on the Effective Date and ending on the
date of delivery of a Compliance Certificate in respect of the fiscal quarter
ending March 31, 1998 pursuant to Section 7.1(c), the Applicable Margin shall be
based on the certificate delivered pursuant to Section 5.7.
"Assignment and Acceptance Agreement" means an assignment and
acceptance agreement substantially in the form of Exhibit G.
"Available Intercompany Investment Amount" means, at any time, an
amount equal to (a) $5,000,000, minus, (b) the sum of, without duplication, the
following: (1) the outstanding principal balance of all Indebtedness of each
Subsidiary which is not a Subsidiary Guarantor to the Borrower or any Subsidiary
Guarantor, (2) the outstanding principal balance of all Indebtedness of
Subsidiaries that are not Subsidiary Guarantors, to the extent that such
Indebtedness is Guaranteed by the Borrower or any Subsidiary Guarantor, (3) the
fair market value of all consideration paid by the Borrower or any Subsidiary
Guarantor on or after the Effective Date to any Subsidiary other than a
Subsidiary Guarantor in connection with any one or more of the following: (i)
any merger between a Subsidiary that is not a Subsidiary Guarantor and a
Subsidiary Guarantor, (ii) each investment by the Borrower or any Subsidiary
Guarantor in the Capital Stock of or debt issued by any Subsidiary that is not a
Subsidiary Guarantor, (iii) any purchase or acquisition between a Loan Party, as
purchaser, and a Subsidiary that is not a Subsidiary Guarantor, as seller, (iv)
sales, assignments, leases, transfers or other dispositions of any property or
assets by any Loan Party to any Subsidiary that is not a Subsidiary Guarantor,
and (v) any Restricted Payment made by a Loan Party to a Subsidiary which is not
a Subsidiary Guarantor.
"Available Other Investment Amount" means, at any time, an amount
equal to (a) $10,000,000, minus, (b) the sum of, without duplication, the
following: (1) the fair market value of all consideration paid by the Borrower
or any Subsidiary on or after the Effective Date in connection with any one or
more of the following: (i) any merger referred to in Section 8.3(d)(iii), and
(ii) any Acquisition referred to in Section 8.5.
"BNY Debt Documents" means, collectively, the Credit and Security
Agreement, dated as of June 27, 1997, by and between the Borrower and BNY, and
all
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<PAGE>
guaranties, security documents and other documents executed and delivered in
connection therewith.
"Board" means the Board of Governors of the Federal Reserve System
of the United States.
"Borrower Obligations" means, collectively, (i) all of the
obligations and liabilities of the Borrower under the Loan Documents, and (ii)
all of the obligations and liabilities of the Borrower under each Secured
Hedging Agreement, in each case whether fixed, contingent, now existing or
hereafter arising, created, assumed, incurred or acquired, and whether before or
after the occurrence of any Event of Default under Section 9.1(h) or (i) and
including any obligation or liability in respect of any breach of any
representation or warranty and all post-petition interest and funding losses,
whether or not allowed as a claim in any proceeding arising in connection with
such an event.
"Borrowing Date" means (i) any Business Day on which (i) the Lenders
make ABR Advances or (ii) any Euro Business Day on which the Lenders make
Eurodollar Advances or Alternate Currency Loans, as the case may be.
"Borrowing Request" means a request for Revolving Loans
substantially in the form of Exhibit B.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which commercial banks located in New York City are authorized or
required by law or other governmental action to be closed.
"Capital Expenditures" means, for any period, the sum of the
aggregate of all expenditures (whether paid in cash or other consideration or
accrued as a liability) by the Borrower and the Subsidiaries on a consolidated
basis in accordance with GAAP during such period for fixed or capital assets
(excluding any capitalized interest and any such asset acquired in connection
with normal replacement and maintenance programs properly charged to current
operations and excluding any replacement assets acquired with the proceeds of
insurance).
"Capital Lease Obligations" means, with respect to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, (a) which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP, or (b) which lease does not qualify as a Tax
Operating Lease. For purposes of this definition, "Tax Operating Lease" means
any "synthetic lease ", and any other lease (i) that is treated as a lease for
purposes of the Code, and (ii) the lessor under which is treated as the owner of
the assets subject to the lease for purposes of the Code.
"Capital Stock" means, as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations,
rights in or other equivalents (however designated) of such Person's equity
(however designated) and any rights, warrants or options exchangeable for or
convertible into such shares, interests, participations, rights or other equity.
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<PAGE>
"Cash Equivalents" means Dollar denominated investments in (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States is pledged in full support thereof) having
maturities of not more than one year from the date of acquisition, (ii) time
deposits, certificates of deposit and bankers acceptances of maturing within 180
days from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any domestic
office of any commercial bank having a combined capital surplus and undivided
profits of not less than $100,000,000 and whose (or whose parent company's)
unsecured non-credit supported short-term debt rating at the time of such
acquisition is the highest credit rating obtainable from Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, Inc., or any
successor thereto ("S&P") and Moody's Investors Service, Inc. or any successor
thereto ("Moody's") or, if rated by only one such rating agency, the highest
credit rating obtainable from such rating agency, (iii) commercial paper
maturing within 90 days from the date of acquisition thereof and having, at such
date of acquisition, the highest credit rating obtainable from S&P or from
Moody's, (iv) marketable direct obligations issued by any state of the United
States or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's, (v) normal business banking accounts, and
(vi) investments in money market funds substantially all the assets of which are
comprised of securities of the types described in clauses (i) through (iv)
above.
"Change in Law" means (i) the adoption of any law, rule or
regulation after the Effective Date, (ii) the issuance or promulgation after the
Effective Date of any directive, guideline or request from any Governmental
Authority (whether or not having the force of law), or (iii) any change after
the Effective Date in the interpretation of any existing law, rule, regulation,
directive, guideline or request by any Governmental Authority charged with the
administration thereof.
"Change of Control" means the occurrence of any of the following
events:
(a) any person or group shall have become the beneficial owner
of voting shares entitled to exercise more than 20% of the total voting
power of all outstanding voting shares of the Borrower (including any
voting shares which are not then outstanding of which such person or group
is deemed the beneficial owner);
(b) a change in the composition of the Managing Person of the
Borrower shall have occurred in which the individuals who constituted the
Managing Person of the Borrower at the beginning of the two year period
immediately preceding such change (together with any other director whose
election by the Managing Person of the Borrower or whose nomination for
election by the shareholders of the Borrower was approved by a vote of at
least a majority of the members of such Managing Person then in office who
either were members of such Managing Person at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the members of
such Managing Person then in office; or
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<PAGE>
(c) any similar circumstance which, under the documentation
evidencing or governing any Indebtedness of the Borrower of $15,000,000 or
more, results in an obligation of the Borrower to prepay, purchase, offer
to purchase, redeem or defease such Indebtedness.
For purposes of this definition, (i) the terms "person" and "group"
shall have the respective meanings ascribed thereto in Sections 13(d) and
14(d)(2) of the Exchange Act, (ii) the term "beneficial owner" shall have the
meaning ascribed thereto in Rule 13d-3 under the Exchange Act and (iii) the term
"voting shares" shall mean all outstanding shares of any class or classes
(however designated) of Capital Stock of the Borrower entitled to vote generally
in the election of members of the Managing Person thereof.
"Code" means the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Collateral" means any and all "Collateral", as defined in any
Security Document.
"Commitment Percentage" means, as of any date and with respect to
each Lender, the percentage equal to a fraction (i) the numerator of which is
the Revolving Commitment of such Lender on such date (or, if there are no
Revolving Commitments on such date, on the last date upon which one or more
Revolving Commitments were in effect), and (ii) the denominator of which is sum
of the Revolving Commitments of all Lenders on such date (or, if there are no
Revolving Commitments on such date, on the last date upon which one or more
Revolving Commitments were in effect).
"Commitment Period" means the period from the Effective Date until
the Commitment Termination Date.
"Commitment Termination Date" means the Business Day immediately
preceding the Maturity Date.
"Compliance Certificate" has the meaning set forth in Section
7.1(c).
"Consolidated Adjusted EBITDA" means, for each period set forth
below:
(i) as of the last day of the first fiscal quarter ending
after the Vanguard Acquisition, the sum of (x) Consolidated EBITDA for the
Rolling Period plus (y) Vanguard EBITDA for such fiscal quarter multiplied
by 4;
(ii) as of the last day of the second fiscal quarter ending
after the Vanguard Acquisition, the sum of (x) Consolidated EBITDA for the
Rolling Period plus (y) Vanguard EBITDA two fiscal quarters multiplied by
2;
(iii) as of the last day of the third fiscal quarter ending
after the Vanguard Acquisition, the sum of (x) Consolidated EBITDA for the
Rolling Period plus (y) Vanguard EBITDA for such three fiscal quarters
multiplied by 1.3333; and
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(iv) as of the last day of the fourth fiscal quarter ending
after the Vanguard Acquisition, and the last day of each fiscal quarter
thereafter, Consolidated EBITDA of the Borrower and the Subsidiaries for
the Rolling Period.
"Consolidated Current Assets" means, at any date of determination,
all current assets of the Borrower and the Subsidiaries, determined on a
consolidated basis in accordance with GAAP, including cash, Cash Equivalents,
accounts receivable (net of any allowances, discounts, returns uncollectible
accounts), inventory (net of returned goods allowances and discounts), prepaid
expenses (the benefit of which is expected to be received in one year or less)
and any other assets that are reasonably expected to be realized in cash or sold
or consumed within one year of the date of any computation.
"Consolidated Current Liabilities" means, at any date of
determination, the aggregate of all current liabilities of the Borrower and the
Subsidiaries, determined on a consolidated basis in accordance with GAAP,
including, accounts payable, interest payable, wages and salaries payable,
payroll taxes and employee withholdings payable, income tax payable, any other
obligations whose liquidation is reasonably expected to require the use of
Current Assets, or the creation of other Current Liabilities, within one year of
such date and without duplication all Indebtedness under the Loan Documents
(whether or not the same is payable within one year of such date).
"Consolidated EBITDA" means, for any period, net income of the
Borrower and the Subsidiaries, determined on a consolidated basis in accordance
with GAAP for such period plus (i) the sum of, without duplication, each of the
following of the Borrower and the Subsidiaries on a consolidated basis in
accordance with GAAP, each to the extent utilized in determining net income for
such period (a) interest expense, (b) provision for income taxes, (c)
depreciation, amortization and other non-cash charges, and (d) extraordinary
losses from sales, exchanges and other dispositions of property not in the
ordinary course of business, minus (ii) the sum of, without duplication, each of
the following with respect to the Borrower and the Subsidiaries on a
consolidated basis in accordance with GAAP, to the extent utilized in
determining such net income: (a) extraordinary gains from sales, exchanges and
other dispositions of property not in the ordinary course of business, and (b)
other non-recurring items. Notwithstanding the foregoing, for any period ending
prior to the last day of the fourth fiscal quarter ending after the Vanguard
Acquisition, Consolidated EBITDA shall be calculated as set forth above and by
subtracting therefrom Vanguard EBITDA for such period.
"Consolidated Tangible Net Worth" means, at any date of
determination, the sum of all amounts which would be included under
"stockholders' equity" or any analogous entry on a consolidated balance sheet of
the Borrower and the Subsidiaries determined in accordance with GAAP as of such
date minus the sum of all intangible assets of the Borrower and the
Subsidiaries, including unamortized debt discount and expense, unamortized
deferred charges (including new business acquisition costs and other charges),
goodwill, patents, trademarks, service marks, trade names, copyrights,
consignment inventory rights, organization or developmental expenses,
capitalized software development costs, and net deferred taxes (if positive).
"Consolidated Total Liabilities" means, at any date of
determination, the sum of all amounts which would be included as a liability on
a consolidated balance sheet of the Borrower and the Subsidiaries determined on
a consolidated basis in accordance with GAAP on such date.
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"Consolidated Working Capital" means, at any date of determination,
an amount equal to (i) the sum of cash, Cash Equivalents, accounts receivable
and inventory of the Borrower and the Subsidiaries, determined on a consolidated
basis in accordance with GAAP, minus (ii) Consolidated Current Liabilities.
"Conversion Date" means any date on which (i) a Eurodollar Advance
is converted to an ABR Advance or a new Eurodollar Advance, as the case may be,
(ii) an ABR Advance is converted to a Eurodollar Advance or (iii) an Alternate
Currency Loan is converted to a new Alternate Currency Loan, as the case may be.
"CoreStates Debt Documents" means, collectively, the Agreement,
dated as of August 20, 1997, by and among Computer Identics Corporation,
Computer Identics GmbH, Computer Identics Ltd., Computer Identics S.A., and
CoreStates Bank, N.A., relating to an uncommitted multicurrency credit facility,
and all guaranties, security documents and other documents executed and
delivered in connection therewith.
"Credit Exposure" means, with respect to any Lender as of any date,
the outstanding principal amount of such Lender's Revolving Loans (determined,
in the case of each Alternate Currency Loan, on the basis of the Dollar
Equivalent thereof).
"Credit Party" means the Administrative Agent or a Lender, as the
case may be.
"Currencies" means, collectively, Dollars, French Francs, German
Marks and Pounds Sterling.
"Customary Lien" means any of the following: (i) any Lien imposed by
law for Taxes that are not yet due or are being contested in compliance with
Section 7.4, provided that enforcement of such Lien is stayed pending such
contest; (ii) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and securing obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 7.4, provided that enforcement of each such
Lien is stayed pending such contest; (iii) pledges and deposits made in the
ordinary course of business in compliance with workers' compensation,
unemployment insurance and other social security laws or regulations; (iv)
deposits and pledges to secure the performance of bids, tenders, contracts
(other than contracts for the payment of money), leases, statutory obligations,
surety and appeal bonds and other obligations of like nature arising in the
ordinary course of business; (v) judgment liens in respect of judgments that
would not cause an Event of Default under Section 9.1(j); (vi) zoning
ordinances, easements, rights of way, minor defects, irregularities, and other
similar encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Subsidiary; and (vii) Liens
created under the Loan Documents.
"Default" means any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"Disposition" has the meaning set forth in Section 8.6.
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"Disqualified Stock" means any Capital Stock of any Person that, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, provided, however, that any Capital Stock
that would constitute Disqualified Stock solely because the holders thereof have
the right to require such Person to repurchase such Capital Stock upon the
occurrence of certain events shall not constitute Disqualified Stock if the
terms of such Capital Stock provide that the Borrower may not repurchase or
redeem any such Capital Stock pursuant to such provisions unless such repurchase
or redemption complies with Section 8.7 of this Agreement.
"Dollar Equivalent" means, on any date of determination thereof, the
amount, as determined by the Administrative Agent, of Dollars which could be
purchased with the amount of the relevant Alternate Currency involved in such
computation at the spot rate at which Dollars may be exchanged into such
Alternate Currency as set forth on such date on Dow Jones Telerate page 262 (or
any successor page) or, if such rate does not appear on such page, at the spot
exchange rate therefor notified to the Administrative Agent by BNY as of 11:00
a.m. (London time) on such date for delivery two Euro Business Days later.
"Dollar Loan" each Revolving Loan made in Dollars.
"Dollars" and "$" mean lawful currency of the United States of
America.
"Domestic Subsidiary" means any Subsidiary that is not a Foreign
Subsidiary.
"Effective Date" means March 18, 1998.
"Eligible Institution" means (i) any commercial bank, trust company,
banking association, insurance company, financial institution, mutual fund or
pension fund acceptable to the Administrative Agent, (ii) any Lender or any
Affiliate or Subsidiary thereof, or (ii) any commercial bank, trust company or
banking association having undivided capital surplus and retained earnings
exceeding $100,000,000.
"Environmental Laws" has the meaning set forth in Section 4.7.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA Affiliate" means any Person which is a member of any group of
organizations within the meaning of Sections 414(b) or (c) of the Code (or,
solely for purposes of potential liability under Section 302(c)(11) of ERISA and
Section 412(c)(11) of the Code and the lien created under Section 302(f) of
ERISA and Section 412(n) of the Code, Sections 414(m) or (o) of the Code) of
which the Borrower or any Subsidiary is a member.
"ERISA Event" means (i) a "reportable event", as defined in Section
4043 of ERISA with respect to a Pension Plan (other than an event for which the
30-day notice period is waived), (ii) the existence with respect to any Pension
Plan of an "accumulated
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<PAGE>
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (ii) the filing pursuant to Section 412(d) of the
Code or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Pension Plan; (iv) the incidence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Pension Plan; (vi) the receipt by the
Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Pension Plan or Pension Plans
or to appoint a trustee to administer any Pension Plan; (vii) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan; or
(viii) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA.
"Euro Business Day" means, with respect to any Currency, any
Business Day which is a day on which dealings in eurocurrencies and exchange
between banks may be carried on in London, England and which is not a legal
holiday or a day on which banking institutions are authorized or required by law
or other government action to close in the national jurisdiction in which the
Agent Payment Office with respect to such Currency is located or, if there is no
such Agent Payment Office, the national jurisdiction of which such Currency is
the freely transferable lawful money.
"Eurodollar Advances" means, collectively, the Dollar Loans (or any
portions thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Rate" means, with respect each Eurodollar Advance, a
rate of interest per annum, as determined by the Administrative Agent, obtained
by dividing (and then rounding to the nearest 1/100 of 1% or, if there is no
nearest 1/100 of 1%, then to the next higher 1/100 of 1%):
(a) the rate per annum for deposits having a maturity most
nearly comparable to the Interest Period in respect of such Eurodollar Advance
in Dollars which appears on page 3740 or 3750 of the Dow Jones Telerate Service
(or any successor page thereof, or if such a rate does not appear on page 3740
or 3750 of the Dow Jones Telerate Service (or such successor page), on any
recognized substitute for the Dow Jones Telerate Service providing rate
quotations comparable to those currently provided on such page of such Service,
as determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period, or, if such rate
does not appear on such page 3740 or 3750 (or on any such successor or
substitute page, or any successor to or substitute for such Dow Jones Telerate
Service) at such time for any reason, then the rate, as determined by the
Administrative Agent, equal to the rate, as reported by BNY to the
Administrative Agent, quoted by BNY to leading banks in the interbank eurodollar
market as the rate at which BNY is offering dollar deposits in an amount
approximately equal to its Commitment Percentage of such Eurodollar Advance and
having a period to maturity approximately equal to the Interest Period
applicable to such Eurodollar Advance, by
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(b) a number equal to 1.00 minus the aggregate of the then
stated maximum rates during such Interest Period of all reserve requirements
(including marginal, emergency, supplemental and special reserves), expressed as
a decimal, established by the Board and any other banking authority to which BNY
and other major money center banks chartered under the laws of the United States
or any State thereof are subject, in respect of eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D) without benefit of
credit for proration, exceptions or offsets which may be available from time to
time to BNY.
"Event of Default" has the meaning set forth in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Excluded Tax" means as to any Person, a Tax imposed by one of the
following jurisdictions or by any political subdivision or taxing authority
thereof: (i) the United States, (ii) the jurisdiction in which such Person is
organized, (iii) the jurisdiction in which such Person's principal office is
located, (iv) in the case of each Credit Party, any jurisdiction in which such
Credit Party is deemed to be doing business, (v) in the case of any Foreign
Credit Party, any withholding tax that is imposed on amounts payable to such
Foreign Credit Party at the time such Foreign Credit Party becomes a party to
this Agreement (or designates a new lending office) or is attributable to such
Foreign Credit Party's failure to comply with Section 3.7(d), except to the
extent that such Foreign Credit Party (or its assignor, if any) was entitled, at
the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 3.7; which Tax (a) is any income tax or franchise tax
imposed on all or part of the net income or net profits of such Person or (b)
represents interest, fees or penalties for payment of any such income tax or
franchise tax.
"Facility Fee" has the meaning set forth in Section 3.2(a).
"Federal Funds Effective Rate" means, for any day, a rate per annum
(expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100
of 1 %) equal to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that (i) if the day for
which such rate is to be determined is not a Business Day, the Federal Funds
Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Effective
Rate for such day shall be the average of the quotations for such day on such
transactions received by BNY as determined by BNY and reported to the
Administrative Agent.
"Fees" has the meaning set forth in Section 2.5(a).
"Financial Officer" means, as to any Person, the chief financial
officer of such Person or such other officer as shall be satisfactory to the
Administrative Agent.
"Fixed Rate Loan" means any Eurodollar Advance or Alternate Currency
Loan, as the case may be.
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<PAGE>
"Foreign Credit Party" means any Credit Party that is organized
under the laws of a jurisdiction other than that in which the Borrower is
located.
"Foreign Subsidiary" means any Subsidiary that is a "controlled
foreign corporation" within the meaning of Section 957 of the Code.
"French Francs" means freely transferable lawful money of France.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States.
"German Marks" means freely transferable lawful money of Germany.
"Governmental Authority" means any foreign, federal, state,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or in effect
guaranteeing any return on any investment made by another Person, or any
Indebtedness, lease, dividend or other obligation (a "primary obligation ") of
any other Person (a "primary obligor") in any manner, whether directly or
indirectly, including any obligation of the guarantor, direct or indirect (i) to
purchase any primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (A) for the purchase or
payment of any primary obligation or (B) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of a primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the beneficiary of any primary
obligation of the ability of a primary obligor to make payment of a primary
obligation, (iv) otherwise to assure or hold harmless the beneficiary of a
primary obligation against loss in respect thereof, and (v) in respect of the
liabilities of any partnership in which a secondary obligor is a general
partner, except to the extent that such liabilities of such partnership are
nonrecourse to such secondary obligor and its separate property, provided,
however, that the term "Guarantee" shall not include the endorsement of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee shall be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guarantor in good faith.
"Hedging Agreement" means any interest rate swap, cap or collar
arrangement or any other derivative product customarily offered by banks or
other financial institutions to their customers in order to reduce the exposure
of such customers to interest rate fluctuations.
"Indebtedness" means, as to any Person, at a particular time, all
items which constitute, without duplication, (i) indebtedness for borrowed
money, (ii) indebtedness in respect of the deferred purchase price of property
(other than trade payables incurred in the ordinary course of business), (iii)
indebtedness evidenced by notes, bonds, debentures or similar instruments, (iv)
obligations with respect to any conditional sale or title retention agreement,
(v) indebtedness arising under acceptance facilities and the amount available to
be drawn under all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder to the extent such Person
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<PAGE>
shall not have reimbursed the issuer in respect of the issuer's payment thereof,
(vi) liabilities secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property
owned by such Person (other than carriers', warehousemen's, mechanics',
repairmen's or other like nonconsensual statutory Liens arising in the ordinary
course of business), even though such Person has not assumed or otherwise become
liable for the payment thereof, (vii) Capital Lease Obligations, (viii) all
obligations of such Person in respect of Disqualified Stock and (ix) all
Guarantees by such Person of Indebtedness of others. The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.
"Indemnified Tax" means as to any Person, any Tax, except (i) an
Excluded Tax imposed on such Person and (ii) any interest, fees or penalties for
late payment thereof imposed on such Person.
"Intellectual Property" means all patents, trademarks, tradenames,
copyrights, trade secrets, confidential or proprietary technical and business
information and other similar property and all licenses related thereto.
"Intercompany Note" means a note in the form of Exhibit L.
"Intercompany Subordination Agreement" means a subordination
agreement substantially in the form of Exhibit F.
"Interest Period" means, with respect to any Fixed Rate Loan
requested by the Borrower, the period commencing on the Borrowing Date or
Conversion Date, as the case may be, with respect to such Fixed Rate Loan and
ending one, two, three or six months thereafter, as selected by the Borrower in
the applicable Borrowing Request or Notice of Conversion. Interest shall accrue
from and including the first day of an Interest Period to, but excluding, the
last day of such Interest Period.
"Leverage Ratio" as of any date of determination, the ratio of (i)
the aggregate Indebtedness as of such date of the Borrower and the Subsidiaries,
determined on a consolidated basis in accordance with GAAP minus an amount (if
positive) equal to (x) the sum of cash and Cash Equivalents of the Borrower and
the Subsidiaries on such date minus $1,000,000 to (ii) Consolidated Adjusted
EBITDA for the Rolling Period.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit or preferential arrangement, encumbrance, lien (statutory or other), or
other security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
capital or financing lease having substantially the same economic effect as any
of the foregoing.
"Line of Business" means, collectively, (i) the design, manufacture,
marketing and sale of (x) automated one-dimensional, two-dimensional and
three-dimensional machine vision-based products and systems for inspection,
measurement and identification, including advanced electro-optical sensor
technology and lighting systems, (y) ball grid array and chip scale packaging
equipment and tape-and-reel component processing systems for the semiconductor
and connector industries, and (z) data collection products,
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networks and linear and 2-D bar code reading systems, and (ii) any business
reasonably similar, complimentary, ancillary or related thereto.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Security Documents, the Intercompany Notes, each Secured Hedging Agreement and
all other agreements, instruments and documents executed or delivered in
connection herewith.
"Loan Parties" means, collectively, the Borrower, each Subsidiary
Guarantor and each other party (other than the Credit Parties) to a Loan
Document.
"Managing Person" means, with respect to any Person that is (i) a
corporation, its board of directors, (ii) a limited liability company, its board
of control, managing member or members, (iii) a limited partnership, its general
partner, (iv) a general partnership or a limited liability partnership, its
managing partner or executive committee or (v) any other Person, the managing
body thereof or other Person analogous to the foregoing.
"Margin Stock" has the meaning set forth in Regulation U.
"Material Adverse" means, with respect to any change or effect, a
material adverse change in, or effect on, as the case may be, (i) the business,
assets, operations, prospects or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole, (ii) the ability of the Borrower
and the Subsidiary Guarantors, taken as a whole, to perform their obligations
under the Loan Documents, (iii) the ability of the Administrative Agent and the
Lenders to enforce the Loan Documents.
"Material Foreign Subsidiary" means each Foreign Subsidiary as to
which any of the following tests are or have at any time been met: (i) the
Borrower's and the other Subsidiaries' investments in and advances to such
Subsidiary is greater than or equal to 10% of the total assets of the Borrower
and the Subsidiaries on a consolidated basis as of the last day of the most
recently completed fiscal year of the Borrower, (ii) such Subsidiary's
proportionate share of the total assets (after intercompany eliminations) of the
Borrower and the Subsidiaries on a consolidated basis is greater than or equal
to 10% of the total assets of the Borrower and the Subsidiaries on a
consolidated basis as of the last day of the most recently completed fiscal year
of the Company, or (iii) the income from continuing operations before income
taxes, extraordinary items and the cumulative effect of a change in accounting
principles of such Subsidiary is greater than or equal to 10% of such income of
the Borrower and the Subsidiaries on a consolidated basis as of the last day of
the most recently completed fiscal year of the Borrower.
"Material Liabilities" means, on any date, with respect to the
Borrower, any Subsidiary, any other Loan Party or any combination thereof: (i)
Indebtedness (other than Indebtedness under the Loan Documents), (ii) the net
termination obligations in respect of one or more Hedging Agreements (calculated
as if such Hedging Agreements were terminated as of such date), and (iii) other
liabilities, in each case specified in clauses (i), (ii) and (iii), whether as
principal, guarantor, surety or other obligor, in an aggregate principal amount
exceeding $1,000,000.
"Maturity Date" means March 17, 2000, or such earlier date on which
the Notes shall become due and payable, whether by acceleration or otherwise.
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"Multiemployer Plan" means a Pension Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, with respect to any event, (a) the
aggregate cash proceeds received by the Borrower and the Subsidiary Guarantors
in respect of such event, including (i) cash received in respect of any other
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i)
reasonable fees and other out-of-pocket expenses paid by the Borrower and the
Subsidiary Guarantors to third parties in connection therewith, (ii) any taxes
paid or reasonably estimated to be payable by the Borrower and the Subsidiary
Guarantors and the amount of any reserves established by the Borrower and the
Subsidiary Guarantors to fund contingent liabilities reasonably estimated to be
payable, in each case by no later than the 180th day succeeding such event and
that are directly attributable to such event, and (iii) in the case of a
Disposition of, or the casualty loss or condemnation or similar event with
respect to, any asset, the amount of all repayments by the Borrower and the
Subsidiary Guarantors of Indebtedness (other than Indebtedness under the Loan
Documents) secured by such asset or otherwise subject to mandatory prepayment as
a result of such event.
"Note" means with respect to each Lender in respect of such Lender's
Revolving Loans, a promissory note, substantially in the form of Exhibit A,
payable to the order of such Lender, each such promissory note having been made
by the Borrower and dated the Effective Date, including all replacements thereof
and substitutions therefor.
"Notice of Conversion" has the meaning set forth in Section 3.3(a).
"Other Taxes" means any and all current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery, registration or enforcement of, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents or otherwise with respect to, the Loan Documents.
"Organizational Documents" means as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"Outstanding Percentage" means, as of any date and with respect to
each Lender, the percentage equal to a fraction (i) the numerator of which is
the Revolving Commitment of such Lender on such date (or, if there are no
Revolving Commitments on such date, the unpaid principal balance of such
Lender's Revolving Loans on such date), and (ii) the denominator of which is the
Aggregate Revolving Commitment on such date (or, if there are no Revolving
Commitments on such date, the unpaid principal balance of the Revolving Loans of
all Lenders on such date).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
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<PAGE>
"Pension Plan" means, at any date of determination, any employee
pension benefit plan (other than a Multiemployer Plan), the funding requirements
of which (under Section 302 of ERISA or Section 412 of the Code) are, or at any
time within the six years immediately preceding such date, were in whole or in
part, the responsibility of the Borrower or any ERISA Affiliate.
"Perfection Certificate" means a certificate in the form of Annex A
to the Security Agreement or any other form approved by the Administrative
Agent.
"Permitted Liens" has the meaning set forth in Section 8.2.
"Person" means a natural person, firm, partnership, limited
liability company, joint venture, corporation, association, business enterprise,
joint stock company, unincorporated association, trust, Governmental Authority
or any other entity, whether acting in an individual, fiduciary, or other
capacity, and for the purpose of the definition of "ERISA Affiliate", a trade or
business.
"Pounds Sterling" means freely transferable lawful money of the
United Kingdom.
"Prime Rate" means the rate of interest per annum publicly announced
in New York City by BNY from time to time as its prime commercial lending rate,
such rate to be adjusted automatically (without notice) on the effective date of
any change in such publicly announced rate.
"Quick Ratio" shall mean, on any day, the ratio of (i) the sum of
cash, Cash Equivalents and accounts receivable of the Borrower and the
Subsidiaries to (ii) Consolidated Current Liabilities.
"Refinancing Debt" has the meaning set forth in Section 8.1(g).
"Refinancing Debt Documents" has the meaning set forth in Section
8.1(g).
"Regulation D, G, T, U and X" mean Regulations D, G, T, U and X,
respectively, of the Board as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
"Reinvestment Period" means the period beginning on the date that
proceeds of casualty insurance or a condemnation award are received by the
Borrower or any Subsidiary, as the case may be, and ending 180 days after the
receipt of such proceeds.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having unused
Revolving Commitments and Credit Exposures greater than or equal to 66-2/3% of
the sum of the unused Revolving Commitments and Aggregate Credit Exposure.
"Restricted Payment" has the meaning set forth in Section 8.7.
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<PAGE>
"Revolving Commitment" means, in respect of any Lender, the maximum
amount of such Lender's Credit Exposure as set forth on the signature page of
such Lender adjacent to the heading "Revolving Commitment" or in an Assignment
and Acceptance Agreement or other document pursuant to which it became a Lender,
as such amount may be adjusted from time to time in accordance herewith.
"Revolving Loan" and "Revolving Loans" have the meaning set forth in
Section 2.1.
"Rolling Period" shall mean, at any date, the four fiscal quarters
ending on such date or, if such date is not the last day of a fiscal quarter,
the immediately preceding four fiscal quarters.
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Secured Hedging Agreement" means any Hedging Agreement entered into
by the Borrower with a counterparty that was a Lender (or an Affiliate thereof)
at the time such Hedging Agreement was entered into.
"Secured Parties" has the meaning set forth in the Security
Agreement.
"Security Agreement" means the Security Agreement, by and among the
Loan Parties party thereto and the Administrative Agent, substantially in the
form of Exhibit H.
"Security Documents" means, collectively, (i) upon the execution and
delivery thereof, the Security Agreement, the Intercompany Subordination
Agreement and the Subsidiary Guarantee, (ii) each Additional Pledge Agreement;
if any, executed and delivered pursuant to Section 7.9, and (iii) all other
instruments and documents delivered pursuant to Section 7.9 or 7.10 to secure
any of the Borrower Obligations.
"Special Counsel" means Emmet, Marvin & Martin, LLP, as, or such
other counsel selected by the Administrative Agent as, special counsel to the
Administrative Agent hereunder.
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any other Person (i) the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, (ii)
of which securities or other ownership interests representing more than 50% of
the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests or more than 50%
of the profits or losses of which are, as of such date, owned, controlled or
held by the parent or one or more subsidiaries of the parent. Unless otherwise
qualified, all references to "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantor" means each Subsidiary party to the Subsidiary
Guarantee.
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<PAGE>
"Subsidiary Guarantee" means the Subsidiary Guarantee, by and among
the Subsidiary Guarantors, the Borrower and the Administrative Agent,
substantially in the form of Exhibit I.
"Syndication Period" means the period commencing on the Effective
Date and ending on the day which is three months after the Effective Date.
"Tax" means any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by a
Governmental Authority, on whomsoever and wherever imposed, levied, collected,
withheld or assessed.
"Terminating Bank Debt" means, collectively, the Indebtedness of the
Borrower under (i) the BNY Debt Documents and (ii) the CoreStates Debt
Documents, including all outstanding principal, unpaid and accrued interest,
unpaid and accrued fees and other unpaid sums thereunder.
"Transactions" means, collectively, the transactions contemplated by
the Loan Documents.
"Unconsolidated Investment" means, as of any date, any investment
made by the Borrower or any Subsidiary in any other Person that, pursuant to
GAAP as in effect on such date, would not be consolidated with the Borrower for
financial reporting purposes immediately after giving effect to such investment.
"United States" means the United States of America.
"Vanguard" means Vanguard Automation, Inc., a Delaware corporation
and a Wholly Owned Subsidiary of the Borrower.
"Vanguard Acquisition" means the acquisition by the Borrower of
Vanguard by a merger of Vanguard with RVSI Southwest Acquisition Corp., a Wholly
Owned Subsidiary of the Borrower, on or about December 9, 1997.
"Vanguard EBITDA" means, for any period, net income of Vanguard,
determined in accordance with GAAP for such period plus (i) the sum of, without
duplication, each of the following of Vanguard determined in accordance with
GAAP for such period (a) interest expense, (b) provision for income taxes, (c)
depreciation, amortization and other non-cash charges, and (d) extraordinary
losses from sales, exchanges and other dispositions of property not in the
ordinary course of business, each to the extent utilized in determining such net
income for such period, minus (ii) the sum of, without duplication, each of the
following with respect to Vanguard determined in accordance with GAAP for such
period, to the extent utilized in determining such net income: (a) extraordinary
gains from sales, exchanges and other dispositions of property not in the
ordinary course of business, and (b) other non-recurring items.
"Vanguard Subordinated Note" means the Subordinated Non-Negotiable
Promissory Note, dated June 27, 1997, made by Vanguard Automation, Inc., in
favor of Southwestern Automation Systems, Inc., in the principal amount
$2,000,000.
"Vanguard Termination" has the meaning set forth in Section 2.1(b).
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"Wholly Owned" means, with respect to any Subsidiary of any Person,
100% of the outstanding Capital Stock of such Subsidiary is owned, directly or
indirectly, by such Person.
"Withdrawal Liability" means, with respect to any Person, liability
of such Person to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
1.2. Accounting Terms
As used in the Loan Documents and in any certificate, opinion or
other document made or delivered pursuant thereto, accounting terms not defined
in Section 1.1, and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
If any change in GAAP would affect the computation of any financial ratio or
requirement set forth in this Agreement, the Credit Parties and the Borrower
shall negotiate in good faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required Lenders), provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change and (ii) the Borrower shall provide to
the Credit Parties financial statements and other documents required under this
Agreement (or such other items as the Administrative Agent may reasonably
request) setting forth a reconciliation between calculations of such ratio or
requirement before and after giving effect to such change.
1.3. Rules of Interpretation
(a) Unless expressly provided in a Loan Document to the contrary,
(i) the words "hereof", "herein ", "hereto" and "hereunder" and similar words
when used in each Loan Document shall refer to such Loan Document as a whole and
not to any particular provision thereof, (ii) section, subsection, schedule and
exhibit references contained therein shall refer to section, subsection,
schedule and exhibit thereof or thereto, (iii) the words "include" and
"including ", shall mean that the same shall be "included, without limitation ",
(iv) any definition of, or reference to, any agreement, instrument, certificate
or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified, (v) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (vi) the words "asset" and
"property" shall be construed to have the same meaning and to refer to any and
all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, (vii) words in the singular number include the
plural, and words used therein in the plural include the singular, (viii) any
reference to a time shall refer to such time in New York, (ix) in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding ", and (x) references therein to a fiscal period shall
refer to that fiscal period of the Borrower.
(b) Article and Section headings have been inserted in the Loan
Documents for convenience only and shall not be construed to be a part thereof.
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ARTICLE 2. AMOUNT AND TERMS OF REVOLVING LOANS
2.1. Revolving Loans
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans (each a "Revolving Loan" and, as
the context may require, collectively with all other Revolving Loans of such
Lender and with the Revolving Loans of all other Lenders, the "Revolving Loans")
to the Borrower in the Currencies from time to time on any Business Day during
the Commitment Period, provided, however that subject to subsection (b) below,
immediately after giving effect thereto, (i) such Lender's Credit Exposure shall
not exceed such Lender's Revolving Commitment, (ii) the Aggregate Credit
Exposure shall not exceed the Aggregate Revolving Commitment, and (iii) if such
Revolving Loan is an Alternate Currency Loan, the aggregate principal amount of
all Alternate Currency Loans (in each case determined on the basis of the Dollar
Equivalent thereof) shall not exceed $2,500,000. During the Commitment Period,
the Borrower may borrow, prepay in whole or in part and reborrow under the
Revolving Commitments, all in accordance with the terms and conditions of this
Agreement. Subject to the provisions of Sections 2.2 and 3.3, at the option of
the Borrower, Dollar Loans may be made as (A) one or more ABR Advances, (B) one
or more Eurodollar Advances, or (C) a combination thereof. The outstanding
principal amount of the Revolving Loans shall be due and payable on the Maturity
Date.
(b) Notwithstanding the foregoing provisions of subsection (a)
above, if on or before June 15, 1998, the Vanguard Subordinated Note shall not
have been paid in full or otherwise satisfied and discharged, all Liens securing
the same shall not have been released, and the Administrative Agent shall not
have received evidence satisfactory to it thereof, including the receipt of
executed UCC-3 Termination Statements or other appropriate releases in form
suitable for filing in the appropriate filing offices (collectively, the
"Vanguard Termination"), then:
(i) for the period from June 15, 1998 through the earlier of
the Vanguard Termination and September 14, 1998, the Borrower may not
borrow under the Revolving Commitment to the extent that, after giving
effect to any requested Revolving Loan, the Aggregate Credit Exposure
would exceed an amount equal to the Aggregate Revolving Commitments minus
$2,000,000; and
(ii) if the Vanguard Termination shall not have occurred on or
before September 15, 1998, for the period from September 15, 1998 through
the date of the Vanguard Termination, the Borrower may not borrow under
the Revolving Commitments to the extent that, after giving effect to any
requested Revolving Loan, the Aggregate Credit Exposure would exceed an
amount equal to the Aggregate Revolving Commitment minus $5,000,000.
2.2. Procedure for Borrowing
(a) Borrowing Request. The Borrower may borrow under the Revolving
Commitments on any Business Day or any Euro Business Day, as the case may be,
during the Commitment Period, provided that the Borrower shall notify the
Administrative Agent by the delivery of a Borrowing Request, which shall be sent
by facsimile and shall be irrevocable (confirmed promptly by the delivery to the
Administrative Agent of a Borrowing Request manually signed by the Borrower), no
later than: 11:00 a.m. three Euro Business Days prior to the requested Borrowing
Date, in the case of Eurodollar Advances,
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11:00 a.m. four Euro Business Days prior to the requested Borrowing Date, in the
case of Alternate Currency Loans, and 11:00 a.m. one Business Day prior to the
requested Borrowing Date, in the case of ABR Advances, specifying (i) the
requested Borrowing Date, (ii) whether such borrowing is to consist of one or
more Eurodollar Advances, one or more Alternate Currency Loans, one or more ABR
Advances, or a combination thereof, and the amount of each thereof (stated in
the applicable Currency), and (iii) if the borrowing is to consist of one or
more Eurodollar Advances or Alternate Currency Loans, the length of the Interest
Period for each such Eurodollar Advance and Alternate Currency Loans.
Notwithstanding anything to the contrary contained herein, (A) each Eurodollar
Advance to be made on a Borrowing Date, when aggregated with all amounts to be
converted to a Eurodollar Advance on such date and having the same Interest
Period as such first Eurodollar Advance, shall equal no less than $1,000,000 or
such amount plus a whole multiple of $500,000 in excess thereof, (B) each
Alternate Currency Loan to be made on a Borrowing Date, when aggregated with all
amounts to be converted to a Alternate Currency Loan on such date and having the
same Interest Period, and being denominated in the same Currency, as such first
Euro Advance shall not be less than an amount in such Currency having a Dollar
Equivalent of approximately $500,000 or such amount plus an amount in such
Currency having a Dollar Equivalent of a whole multiple of approximately
$250,000 in excess thereof, and (C) each ABR Advance to be made on a Borrowing
Date shall equal no less than $500,000 or such amount plus a whole multiple of
$100,000 in excess thereof or, if less, the unused portion of the Aggregate
Revolving Commitment.
(b) Funding by Lenders. Upon receipt of each Borrowing Request, the
Administrative Agent shall promptly notify each Lender thereof. Subject to its
receipt of the notice referred to in the preceding sentence, each Lender will
make the amount of its Commitment Percentage of the requested Revolving Loans
available to the Administrative Agent for the account of the Borrower at the
applicable Agent Payment Office in the applicable Currency not later than (i)
11:00 a.m. (local time in the city in which such Agent Payment Office is
located), in the case of an Alternate Currency Loan, and (ii) 2:00 p.m. (New
York City time), in the case of a Dollar Loan, in each case on the relevant
Borrowing Date requested by the Borrower, in funds immediately available to the
Administrative Agent at such Agent Payment Office. The amounts so made available
to the Administrative Agent on such Borrowing Date will then, subject to the
satisfaction of the terms and conditions of this Agreement, be made available on
such Borrowing Date to the Borrower by the Administrative Agent at such Agent
Payment Office, in such Currency, and in immediately available funds, no later
than (A) 2:00 p.m. (local time in the city in which such Agent Payment Office is
located), in the case of an Alternate Currency Loan, and (B) 3:30 p.m. (New York
City time), in the case of a Dollar Loan.
(c) Failure to Fund. Unless the Administrative Agent shall have
received notice prior to a proposed Borrowing Date from a Lender (by telephone
or otherwise, such notice to be promptly confirmed by facsimile or other
writing) that such Lender will not make available to the Administrative Agent
such Lender's share of the requested Revolving Loans, the Administrative Agent
may assume that such Lender has made such share available to the Administrative
Agent on the Borrowing Date in accordance with Section 2.2(b) and, in reliance
upon such assumption, make available to the Borrower on such Borrowing Date a
corresponding amount. If and to the extent such Lender shall not have so made
such share available to the Administrative Agent, such Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount (to the extent not previously paid by the other), together
with interest thereon for each day from the date such amount is made available
to the Borrower to the date such amount is paid to the Administrative Agent, at
a rate per
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annum equal to, in the case of the Borrower, the interest rate otherwise
applicable to such Revolving Loan, and, in the case of such Lender, at a rate of
interest per annum equal to the greater of the Federal Funds Effective Rate (or,
in the case of each Alternate Currency Loan, a rate determined by the
Administrative Agent to be reflective of the all-in cost of funds to the
Administrative Agent in funding such Alternate Currency Loan) and a rate
determined by the Administrative Agent in accordance with banking industry rates
on interbank compensation. If such Lender shall pay to the Administrative Agent
such corresponding amount, such amount so paid shall constitute such Lender's
Revolving Loan as part of the relevant borrowing for purposes of this Agreement.
(d) Borrower Accounts. Each Loan shall be made to the applicable
payment account of the Borrower set forth in Exhibit K or such other account
which the Borrower may from time to time specify by written notice to the
Administrative Agent and the Lenders.
2.3. Termination and Reduction of Revolving Commitments
(a) Voluntary Termination or Reductions. The Borrower may, upon at
least three Business Days' prior written notice to the Administrative Agent, (A)
at any time when the Aggregate Credit Exposure shall be zero, terminate all of
the Revolving Commitments, and (B) at any time and from time to time when the
Aggregate Revolving Commitment shall exceed the Aggregate Credit Exposure (after
giving effect to any contemporaneous payment of Revolving Loans and determined
in the case of each outstanding Alternate Currency Loan, on the basis of the
Dollar Equivalent thereof), permanently reduce the Aggregate Revolving
Commitment by a sum not greater than the amount of such excess, provided,
however, that each such partial reduction shall be in the amount of $2,500,000
or such amount plus a whole multiple of $500,000 in excess thereof.
(b) Other Mandatory Reductions. The Aggregate Revolving Commitment
shall be permanently reduced at the times and in the amounts required by Section
2.4(b).
(c) Reductions in General. Each reduction of the Aggregate Revolving
Commitment shall be made by reducing each Lender's Revolving Commitment by an
amount equal to such Lender's Commitment Percentage of such reduction.
Simultaneously with each reduction of the Aggregate Revolving Commitment, the
Borrower shall pay the Facility Fee accrued on the amount by which the Aggregate
Revolving Commitment has been reduced.
2.4. Prepayments of the Revolving Loans
(a) Voluntary Prepayments. The Borrower shall have the right at any
time and from time to time to prepay all or a portion of the Revolving Loans
without premium or penalty (but subject to Section 3.5), by delivering to the
Administrative Agent an irrevocable written notice thereof at least one Business
Day prior to the proposed prepayment date, in the case of ABR Advances, and at
least three Euro Business Days prior to the proposed prepayment date, in the
case of Eurodollar Advances or Alternate Currency Loans, specifying whether the
Revolving Loans to be prepaid consist of ABR Advances, Eurodollar Advances,
Alternate Currency Loans or a combination thereof, the amount to be prepaid
stated in the applicable Currency and the date of prepayment, whereupon the
amount specified in such notice shall be due and payable on the date specified.
Upon receipt of such notice, the Administrative Agent shall promptly notify each
Lender
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thereof. Each partial prepayment pursuant to this subsection (a) shall be in a
minimum amount of $500,000 or such amount plus a whole multiple of $100,000 in
excess thereof, provided, however, that after giving effect to any partial
prepayment with respect to Eurodollar Advances or Alternate Currency Loans which
were made (whether as the result of a borrowing, a conversion or a continuation)
on the same date and which had the same Interest Period, the outstanding
principal balance of such (i) Eurodollar Advances shall exceed (subject to
Section 3.3) $1,000,000 or such amount plus a whole multiple of $500,000 and
(ii) Alternate Currency Loans shall exceed (subject to Section 3.3) $500,000 or
such amount plus a whole multiple of $250,000.
(b) Mandatory Prepayments and Commitment Reductions Relating to
Dispositions, Insurance Proceeds, Casualty Events and the Proceeds of Debt
Issuances. On or before each date set forth below, the Aggregate Revolving
Commitment shall be permanently reduced and the Borrower shall prepay the
aggregate unpaid principal amount of the Revolving Loans in the amounts set
forth below and applicable to the date specified:
(i) by an amount equal to 100% of the Net Cash Proceeds with
respect to any Disposition to the extent that the Net Cash Proceeds with
respect to all such Dispositions received after the Effective Date exceeds
$1,000,000;
(ii) on the last day of the Reinvestment Period in respect of
the proceeds of casualty insurance or condemnation by an amount equal to
such proceeds minus the amount thereof used during the Reinvestment Period
to replace or repair any properties, provided that the Borrower or the
applicable Subsidiary Guarantor shall have commenced the restoration or
replacement process (including the making of appropriate filings and
requests for approval) within 45 days after such casualty or after the
receipt of any such condemnation proceeds, as the case may be, and
diligently pursues the same through completion; and
(iii) upon receipt by the Borrower of the proceeds of
Refinancing Debt, by an amount equal to 100% of the Net Cash Proceeds
thereof.
(c) Other Mandatory Prepayments.
(i) Simultaneously with each reduction or termination of the
Aggregate Revolving Commitment, the Borrower shall prepay the Revolving
Loans by an amount equal to the lesser of (A) the aggregate outstanding
principal balance of the Revolving Loans, or (B) the excess of the
aggregate outstanding principal balance of the Revolving Loans over the
Aggregate Revolving Commitment as so reduced or terminated.
(ii) If the Vanguard Termination shall not have occurred on or
before June 15, 1998, the Borrower shall repay the Revolving Loans to the
extent that (A) during the period from June 15, 1998 through the earlier
of the Vanguard Termination and September 14, 1998, the Aggregate Credit
Exposure exceeds an amount equal to the Aggregate Revolving Commitments
minus $2,000,000, and (B) if the Vanguard Termination shall not have
occurred on or before September 15, 1998, during the period from September
15, 1998 through the date of the Vanguard Termination, the Aggregate
Credit Exposure exceeds an amount equal to the Aggregate Revolving
Commitments minus $5,000,000.
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(d) In General. Simultaneously with each prepayment of a Revolving
Loan, the Borrower shall prepay all accrued interest on the amount prepaid
through the date of prepayment.
2.5. Payments; Pro Rata Treatment and Sharing of Set-offs
(a) Payments Generally. (i) Except as provided below, all payments,
including prepayments, of principal and interest on the Revolving Loans, of the
Facility Fee and of all other amounts to be paid by the Borrower under the Loan
Documents (the Facility Fee, together with all of such other fees, being
sometimes hereinafter collectively referred to as the "Fees") shall be made by
the Borrower to the Administrative Agent at the applicable Agent Payment Office
in funds immediately available to the Administrative Agent at such office by
12:00 noon (local time in the city in which such Agent Payment Office is
located) on the due date for such payment without set-off, offset, recoupment or
counterclaim. The failure of the Borrower to make any such payment by such time
shall not constitute a default hereunder, provided that such payment is made on
such due date, but any such payment made after 2:00 p.m. (local time in the city
in which such payment is to be made in accordance with the terms hereof) on such
due date shall be deemed to have been made on the next Business Day or Euro
Business Day, as the case may be, for the purpose of calculating interest on
amounts outstanding on the applicable Revolving Loans. As between the Borrower
and each Credit Party, any payment by the Borrower to the Administrative Agent
for the account of such Credit Party shall be deemed to be payment by the
Borrower to such Credit Party. Notwithstanding the foregoing, all payments
pursuant to Sections 3.5, 3.6, 3.7 and 11.4 shall be paid directly to the Credit
Party entitled thereto. If any payment under the Loan Documents shall be due and
payable on a day which is not a Business Day or a Euro Business Day, as the case
may be, the due date thereof (except as otherwise provided herein) shall be
extended to the next Business Day or Euro Business Day, as the case may be, and
(except with respect to payments in respect of the Fees) interest shall be
payable at the applicable rate specified herein during such extension, provided,
however, that, if such next Business Day or Euro Business Day, as the case may
be, is after the Maturity Date, any such payment shall be due on the immediately
preceding Business Day or Euro Business Day, as the case may be.
(ii) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (A) first,
towards payment of interest and fees then due under the Loan Documents, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (B) second, towards payment of principal
then due under the Loan Documents, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.
(b) Set-off. In addition to any rights and remedies of the Credit
Parties provided by law, upon and after the acceleration of all the obligations
of the Borrower under the Loan Documents to which it is a party, or at any time
upon the occurrence and during the continuance of an Event of Default under
Sections 9.1(a) or (b), each Credit Party shall have the right, without prior
notice to any Loan Party, any such notice being expressly waived by each Loan
Party to the extent not prohibited by applicable law, to set-off and apply
against any indebtedness, whether matured or unmatured, of such Loan Party to
such Credit Party any amount owing from such Credit Party to such Loan Party,
at, or at any time after, the happening of any of the above-mentioned events. To
the extent not prohibited by applicable law, the aforesaid right of set-off may
be exercised by
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any Credit Party against such Loan Party or against any trustee in bankruptcy,
custodian, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor of such Loan Party, or
against anyone else claiming through or against such Loan Party, or such trustee
in bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Credit Party prior to the making, filing or issuance, or
service upon such Credit Party of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Credit Party agrees promptly to notify the Borrower and the Administrative
Agent after any such set-off and application made by such Credit Party, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
(c) Adjustments. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in respect of the principal of or interest on its Revolving Loans,
resulting in such Lender receiving payment of a greater proportion of the
aggregate principal amount of, or accrued interest on, such Revolving Loans than
the proportion received by any other Lender, then the Lender receiving such
greater proportion shall promptly purchase, at face value for cash,
participations in the Revolving Loans to the extent necessary so that the
benefit of such payment shall be shared by the Lenders ratably in accordance
with the aggregate amount of principal of and accrued interest on their
respective Revolving Loans, provided, however, that (i) if all or any portion of
such payment is thereafter recovered, such participations shall be rescinded and
the purchase price returned, in each case to the extent of such recovery, and
(ii) the provisions of this Section 2.6(c) shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Revolving Loans to
any assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this Section 2.6(c) shall
apply). The Borrower agrees that any Lender that purchased a participation
pursuant to this subsection may exercise such rights to payment (including the
right of set-off) with respect to such participation as fully as such Lender
were the direct creditor of the Borrower in the amount of such participation.
(d) Alternate Currencies. Notwithstanding anything to the contrary
contained in any Loan Document, each payment (including each prepayment) of
principal and interest on each Alternate Currency Loan shall be made solely in
the Currency in which such Alternate Currency Loan is denominated.
ARTICLE 3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1. Interest Rate and Payment Dates
(a) Advances and Alternate Currency Loans. Each (i) ABR Advance
shall bear interest at a rate per annum equal to the Alternate Base Rate, (ii)
Eurodollar Advance shall bear interest at a rate per annum equal to the
Eurodollar Rate for the applicable Interest Period plus the Applicable Margin
and (iii) Alternate Currency Loan shall bear interest at a rate per annum equal
to the Alternate Currency Euro Rate for the applicable Interest Period plus the
Applicable Margin.
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(b) Event of Default; Late Charges. Notwithstanding the foregoing,
after the occurrence and during the continuance of an Event of Default under
Section 9.1(a) or 9.1(b), the outstanding principal balance of the Revolving
Loans shall bear interest at a rate per annum equal to 2% plus the rate
otherwise applicable to such Revolving Loans as provided in subsection (a)
above. If any interest, Fee or other amount payable under the Loan Documents is
not paid when due (whether at the stated maturity thereof, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the Alternate Base Rate plus 2%, from the date of such nonpayment until paid in
full (whether before or after the entry of a judgment thereon). All such
interest shall be payable on demand.
(c) Payment of Interest. Except as otherwise provided in subsection
(b) above, interest shall be payable in arrears on the following dates and upon
each payment (including prepayment) of the Revolving Loans:
(i) in the case of an ABR Advance, on the last Business Day of
each March, June, September and December commencing on the first of such
days to occur after such ABR Advance is made or any Eurodollar Advance is
convened to an ABR Advance;
(ii) in the case of a Eurodollar Advance or an Alternate
Currency Loan, on the last day of the Interest Period applicable thereto
and, if such Interest Period is longer than three months, the last
Business Day of each three month interval occurring during such Interest
Period;
(iii) in the case of all Advances and all Revolving Loans, the
Maturity Date.
(d) Computations. Interest on (i) ABR Advances to the extent based
on the Prime Rate and Alternate Currency Loans denominated in Pounds Sterling
shall be calculated on the basis of a 365 or 366-day year (as the case may be),
and (ii) ABR Advances to the extent based on the Federal Funds Effective Rate
and on Eurodollar Advances and Alternate Currency Loans (other than Alternate
Currency Loans denominated in Pounds Sterling) shall be calculated on the basis
of a 360-day year, in each case, for the actual number of days elapsed. The
Administrative Agent shall, as soon as practicable, notify the Borrower and the
Lenders of the effective date and the amount of each such change in the Prime
Rate, but any failure to so notify shall not in any manner affect the obligation
of the Borrower to pay interest on the Revolving Loans in the amounts and on the
dates required. Each determination of a rate of interest by the Administrative
Agent pursuant to the Loan Documents shall be conclusive and binding on all
parties hereto absent manifest error. The Borrower acknowledges that to the
extent interest payable on ABR Advances is based on the Prime Rate, such rate is
only one of the bases for computing interest on loans made by the Lenders, and
by basing interest payable on ABR Advances on the Prime Rate, the Lenders have
not committed to charge, and the Borrower has not in any way bargained for,
interest based on a lower or the lowest rate at which the Lenders may now or in
the future make loans to other borrowers.
3.2. Fees
(a) Facility Fee. The Borrower agrees to pay to the Administrative
Agent, for the account of the Lenders in accordance with each Lender's
Commitment Percentage, a fee (the "Facility Fee"), during the period from the
Effective Date through
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the Maturity Date, at a rate per annum equal to 0.25% on the average daily
Aggregate Revolving Commitment, regardless of usage. The Facility Fee shall be
payable (i) quarterly in arrears on the last Business Day of each March, June,
September and December during such period, commencing on the first such day
following the Effective Date, (ii) on the date of any reduction in the Aggregate
Revolving Commitment (to the extent of such reduction) and (iii) on the Maturity
Date. The Facility Fee shall be calculated on the basis of a 360-day year for
the actual number of days elapsed.
(b) Administrative Agent's Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, such other fees as have been agreed
to by the Borrower and the Administrative Agent.
3.3. Conversions
(a) The Borrower may elect from time to time to convert one or more
Eurodollar Advances to ABR Advances by giving the Administrative Agent at least
two Business Day's prior irrevocable notice of such election, specifying the
amount to be converted, provided, that any such conversion of Eurodollar
Advances shall only be made on the last day of the Interest Period applicable
thereto, except as otherwise provided in Section 3.6(c). In addition, the
Borrower may elect from time to time to convert (i) ABR Advances to Eurodollar
Advances, (ii) Eurodollar Advances to new Eurodollar Advances by selecting a new
Interest Period therefor, and (iii) Alternate Currency Loans to new Alternate
Currency Loans in the same applicable Currency by selecting a new Interest
Period therefor, in each case by giving the Administrative Agent at least three
Euro Business Days' prior irrevocable notice of such election, specifying the
amount to be so converted and the initial Interest Period relating thereto,
provided that any such conversion of ABR Advances to Eurodollar Advances,
Eurodollar Advances to new Eurodollar Advances or Alternate Currency Loans to
new Alternate Currency Loans shall only be made on a Euro Business Day and,
except as otherwise provided in Section 3.6(c), any such conversion of
Eurodollar Advances to new Eurodollar Advances or Alternate Currency Loans to
new Alternate Currency Loans, as the case may be, shall only be made on the last
day of the Interest Period applicable to the Eurodollar Advances or Alternate
Currency Loans, as the case may be, which are to be converted to such new
Eurodollar Advances or such new Alternate Currency Loans, as the case may be.
Each such notice shall be irrevocable and shall be promptly confirmed by
delivery to the Administrative Agent of a Notice of Conversion manually signed
by the Borrower. The Administrative Agent shall promptly notify each Lender (by
telephone or otherwise, such notice to be confirmed by facsimile or other
writing) of each such election. Advances may be converted pursuant to this
Section 3.3 in whole or in part, provided that (A) the amount to be converted to
each Eurodollar Advance, when aggregated with any Eurodollar Advance to be made
on such date in accordance with Section 2.2 and having the same Interest Period
as such first Eurodollar Advance, shall equal not less than $1,000,000 or such
amount plus a whole multiple of $500,000 in excess thereof, and (B) the amount
to be converted to each Alternate Currency Loan, when aggregated with any
Alternate Currency Loan to be made on such date in accordance with Section 2.2
and having the same Interest Period, and being denominated in the same
applicable Currency, as such first Alternate Currency Loan, shall equal no less
than an amount in such Currency having a Dollar Equivalent of approximately
$500,000 or such amount plus an amount in such Currency having a Dollar
Equivalent of a whole multiple of approximately $250,000 in excess thereof.
(b) Notwithstanding anything in this Agreement to the contrary, upon
the occurrence and during the continuance of an Event of Default, the Borrower
shall not
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have the right to elect to convert any existing ABR Advance to a new Eurodollar
Advance or to convert any existing Eurodollar Advance to a new Eurodollar
Advance. In such event, except as otherwise provided in Section 3.6(c), (i) each
ABR Advance shall be automatically continued as an ABR Advance, (ii) each
Eurodollar Advance shall be automatically converted to an ABR Advance on the
last day of the Interest Period applicable thereto, and (iii) each Alternate
Currency Loan shall, on the last day of the Interest Period applicable thereto,
be automatically converted to a new Alternate Currency Loan in the same
applicable Currency with a one month Interest Period.
(c) Each conversion shall be effected by each Lender by applying the
proceeds of its new ABR Advance, new Eurodollar Advance or new Alternate
Currency Loan, as the case may be, to its Advances or Alternate Currency Loans
(or portion thereof) being converted (it being understood that any such
conversion shall not constitute a borrowing for purposes of Articles 4, 5 or 6).
3.4. Concerning Interest Periods
(a) No Interest Period shall end after the Maturity Date.
(b) Any Interest Period that begins on the last Euro Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Euro Business Day of a calendar month,
(c) If an Interest Period would otherwise end on a day which is not
a Euro Business Day, such Interest Period shall be extended to the next
succeeding Euro Business Day unless (i) such next succeeding Euro Business Day
would be a date on or after the Maturity Date, in which event such Interest
Period shall end on the next preceding Euro Business Day, or (ii) the result of
such extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the immediately
preceding Euro Business Day,
(d) If the Borrower shall have failed, for any reason, to elect a
Eurodollar Advance or Alternate Currency Loan, as the case may be, under
Sections 2.2 or 3.3, as the case may be, in connection with any borrowing of new
Revolving Loans or expiration of an Interest Period with respect to any existing
Eurodollar Advance or Alternate Currency Loan, as the case may be, the amount of
the Revolving Loans subject to such borrowing or such existing Eurodollar
Advance or Alternate Currency Loan, as the case may be, shall, except as
otherwise provided in Section 3.6(c), thereafter be (i) in the case of a
Eurodollar Advance, an ABR Advance, and (ii) in the case of an Alternate
Currency Loan, a new Alternate Currency Loan in the same applicable Currency
with a one month Interest Period, in each case until such time, if any, as the
Borrower shall elect a new Eurodollar Advance or Alternate Currency Loan, as the
case may be, pursuant to Section 3.3.
(e) At no time shall the aggregate outstanding number (whether as a
result of borrowings or conversions), of (i) all Eurodollar Advances exceed
eight, and (ii) all Alternate Currency Loans exceed five.
(f) Notwithstanding anything herein to the contrary, during the
Syndication Period, the Borrower may only select Interest Periods of not greater
than one month all of which shall commence on the same date and end on the same
date.
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3.5. Funding Loss
Notwithstanding anything contained herein to the contrary, if the
Borrower shall fail to borrow, convert or continue a Fixed Rate Loan on a
Borrowing Date or Conversion Date after it shall have given notice to do so in
which it shall have requested a Fixed Rate Loan, or if a Fixed Rate Loan shall
be terminated for any reason prior to the last day of the Interest Period
applicable thereto, or if, while a Fixed Rate Loan is outstanding, any repayment
or prepayment of such Fixed Rate Loan is made for any reason (including as a
result of acceleration or illegality) on a date which is prior to the last day
of the Interest Period applicable thereto, the Borrower agrees to indemnify each
Lender against, and to pay on demand directly to such Lender the amount
(calculated by such Lender using any reasonable method chosen by such Lender
which is customarily used by such Lender for such purpose) equal to any loss or
out-of-pocket expense suffered by such Lender as a result of such failure to
borrow convert, or continue, or such termination, repayment or prepayment,
including any loss, cost or expense suffered by such Lender in liquidating or
employing deposits acquired to fund or maintain the funding of such Fixed Rate
Loan or redeploying funds prepaid or repaid, in amounts which correspond to such
Fixed Rate Loan and any reasonable internal processing charge customarily
charged by such Lender in connection therewith.
3.6. Increased Costs; illegality, etc.
(a) Increased Costs. If any Change in Law shall impose, modify or
make applicable any reserve, special deposit, compulsory loan, assessment,
increased cost or similar requirement against assets held by, or deposits of, or
advances or loans by, or other credit extended by, or any other acquisition of
funds by, any office of any Credit Party in respect of its Fixed Rate Loans
which is not otherwise included in the determination of a Eurodollar Rate or
Alternate Currency Euro Rate, as the case may be, and the result of any of the
foregoing is to increase the cost to such Lender of making, renewing, converting
or maintaining its Fixed Rate Loans or its commitment to make such Fixed Rate
Loans, or to reduce any amount receivable under the Loan Documents in respect of
its Fixed Rate Loans, then, in any such case, the Borrower shall pay to such
Credit Party such additional amounts as is sufficient to compensate such Credit
Party for such additional cost or reduction in such amount receivable which such
Credit Party deems to be material as determined by such Credit Party.
(b) Capital Adequacy. If any Credit Party determines that any Change
in Law relating to capital requirements has or would have the effect of reducing
the rate of return on such Credit Party's capital or on the capital of such
Credit Party's holding company, if any, on the Revolving Loans to a level below
that which such Credit Party (or its holding company) would have achieved or
would thereafter be able to achieve but for such Change in Law (after taking
into account such Credit Party's (or such holding company's) policies regarding
capital adequacy), the Borrower shall pay to such Credit Party (or such holding
company) such additional amount or amounts as will compensate such Credit Party
(or such holding company) for such reduction.
(c) Illegality. Notwithstanding any other provision hereof, if any
Lender shall reasonably determine that any Change in Law shall make it unlawful
for such Lender to make or maintain any Fixed Rate Loan as contemplated by this
Agreement, such Lender shall promptly notify the Borrower and the Administrative
Agent thereof, and (i) the commitment or other obligation of such Lender to make
such Fixed Rate Loans or convert ABR Advances to Eurodollar Advances or
Alternate Currency Loans to new
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Alternate Currency Loans, as the case may be, shall forthwith be suspended, (ii)
such Lender shall fund its portion of each requested Eurodollar Advance as an
ABR Advance, (iii) such Lender's Revolving Loans then outstanding as such
Eurodollar Advances, if any, shall be converted automatically to an ABR Advance
on the last day of the then current Interest Period applicable thereto or at
such earlier time as may be required by law, and (iv) in the case of each
Alternate Currency Loan, the Borrower shall take such action as such Lender may
reasonably request with a view to minimizing the obligations of the Borrower
under Section 3.5. If the commitment of any Lender with respect to Fixed Rate
Loans is suspended pursuant to this subsection (c) and such Lender shall have
obtained actual knowledge that it is once again legal for such Lender to make or
maintain Fixed Rate Loans, such Lender shall promptly notify the Administrative
Agent and the Borrower thereof and, upon receipt of such notice by each of the
Administrative Agent and the Borrower, such Lender's commitment to make or
maintain Fixed Rate Loans shall be reinstated.
(d) Substituted Interest Rate. In the event that (i) the
Administrative Agent or BNY shall have determined (which determination shall be
conclusive and binding upon the Borrower) that by reason of circumstances
affecting the interbank market either adequate or reasonable means do not exist
for ascertaining the Eurodollar Rate or Alternate Currency Euro Rate, as the
case may be, applicable pursuant to Section 3.1 or (ii) the Required Lenders
shall have notified the Administrative Agent that they have determined (which
determination shall be conclusive and binding on the Borrower) that the
applicable Eurodollar Rate or Alternate Currency Euro Rate, as the case may be,
will not adequately and fairly reflect the cost to such Lenders of maintaining
or funding loans bearing interest based on such Eurodollar Rate or Alternate
Currency Euro Rate, as the case may be, with respect to any portion of the
Revolving Loans that the Borrower has requested be made as Eurodollar Advances
or Alternate Currency Loans, as the case may be, or Eurodollar Advances or
Alternate Currency Loans, as the case may be, that will result from the
requested conversion of any portion of the Advances or Alternate Currency Loans
into or of Eurodollar Advances or Alternate Currency Loans, as the case may be
(each an "Affected Advance"), the Administrative Agent shall promptly notify the
Borrower and the Lenders (by telephone or otherwise, to be promptly confirmed in
writing) of such determination, on or, to the extent practicable, prior to the
requested Borrowing Date or Conversion Date for such Affected Advances. If the
Administrative Agent shall give such notice, (i) in the case of Eurodollar
Advances, (A) such Affected Advances shall be made as ABR Advances, (B) the
Advances (or any portion thereof) that were to have been converted to Affected
Advances shall be converted to ABR Advances, and (C) any outstanding Affected
Advances shall be converted, on the last day of the then current Interest Period
with respect thereto, to ABR Advances, and (ii) in the case of Alternate
Currency Loans, the interest rate for such Affected Advances shall be determined
pursuant to clause (a)(iii) of the definition of Alternate Currency Euro Rate.
Until any notice under clause (i) or (ii), as the case may be, of this
subsection (d) has been withdrawn by the Administrative Agent (by notice to the
Borrower promptly upon either (1) the Administrative Agent having determined
that such circumstances affecting the interbank market no longer exist and that
adequate and reasonable means do exist for determining the Eurodollar Rate or
Alternate Currency Euro Rate, as the case may be, pursuant to Section 3.1 or (2)
the Administrative Agent having been notified by such Required Lenders that
circumstances no longer render the Advances or Alternate Currency Loans (or any
portion thereof) Affected Advances, (x) no further Eurodollar Advances shall be
required to be made by the Lenders, (y) the Borrower shall not have the right to
convert all or any portion of the Revolving Loans to or as Eurodollar Advances,
and (z) the interest rate for Alternate Currency Loans shall be determined
pursuant to clause (a)(iii) of the definition of Alternate Currency Euro Rate.
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(e) Payment; Certificates. Each payment pursuant to subsections (a)
or (b) above shall be made within 10 days after demand therefor, which demand
shall be accompanied by a certificate of the Credit Party demanding such payment
setting forth the calculations of the additional amounts payable pursuant
thereto. Each such certificate shall be conclusive absent manifest error. No
failure by any Credit Party to demand, and no delay in demanding, compensation
for any increased cost shall constitute a waiver of its right to demand such
compensation at any time.
3.7. Taxes
(a) Payments Free of Taxes. Subject to Sections 3.7(d) and 3.7(e),
all payments by or on account of each Loan Party under any Loan Document to or
for the account of any Credit Party shall be made free and clear of, and without
any deduction or withholding for or on account of, any and all present or future
Indemnified Taxes or Other Taxes, provided that if any Loan Party or any other
Person is required by any law, rule, regulation, order, directive, treaty or
guideline to make any deduction or withholding in respect of such Indemnified
Tax or Other Tax from any amount required to be paid by any Loan Party to or on
behalf of any Credit Party under any Loan Document (each, a "Required Payment"),
then (i) such Loan Party shall notify the Administrative Agent and such Credit
Party of any such requirement or any change in any such requirement as soon as
such Loan Party becomes aware thereof, (ii) such Loan Party shall pay such
Indemnified Tax or Other Tax prior to the date on which penalties attach
thereto, such payment to be made (to the extent that the liability to pay is
imposed on such Loan Party) for its own account or (to the extent that the
liability to pay is imposed on such Credit Party) on behalf and in the name of
such Credit Party, (iii) such Loan Party shall pay to such Credit Party an
additional amount such that such Credit Party shall receive on the due date
therefor an amount equal to the Required Payment had no such deduction or
withholding been made or required, and (iv) such Loan Party shall, within 30
days after paying such Indemnified Tax or Other Tax, deliver to the
Administrative Agent and such Credit Party satisfactory evidence of such payment
to the relevant Governmental Authority.
(b) Other Indemnified Taxes. If any Credit Party or any affiliate
thereof is required by any law, rule, regulation, order, directive, treaty or
guideline to pay any Indemnified Tax (excluding an Indemnified Tax which is
subject to Section 3.7(a)) with respect to any sum paid or payable by any Loan
Party to such Credit Party under the Loan Documents, then, within five days
after such Credit Party shall have notified such Loan Party thereof (which
notice shall be accompanied by a statement setting forth the reasonable
calculation thereof), such Loan Party shall pay to such Credit Party the amount
of such Indemnified Tax.
(c) Tax on Indemnified Taxes. If any amounts are payable by any Loan
Party in respect of Indemnified Taxes pursuant to Section 3.7(a) or (b), such
Loan Party agrees to pay to the applicable Credit Party, within five days of
written request therefor (which request shall set forth the reasonable
calculations thereof), an amount equal to all Taxes imposed with respect to such
amounts as such Credit Party shall determine in good faith are payable by such
Credit Party or any affiliate thereof in respect of such amounts and in respect
of any amounts paid to or on behalf of such Credit Party pursuant to this
subsection (c).
(d) U.S. Tax Certificates. Each Foreign Credit Party that is
organized under the laws of any jurisdiction other than the United States or any
political subdivision thereof shall deliver to the Administrative Agent for
transmission to the Borrower, on or
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prior to the Effective Date (or, if such Foreign Credit Party is not a signatory
hereto, on or prior to the date it becomes a Foreign Credit Party), and at such
other times, as may be necessary in the determination of the Borrower, any other
Loan Party or the Administrative Agent (each in the reasonable exercise of its
discretion), such certificates, documents or other evidence, properly completed
and duly executed by such Foreign Credit Party (including Internal Revenue
Service Form 1001 or Form 4224 (or, in each case, any equivalent or successor
form)) to establish that such Foreign Credit Party is not subject to deduction
or withholding of United States federal income tax under Section 1441 or 1442 of
the Code or otherwise (or under any comparable provisions of any successor
statute) with respect to any payments to such Foreign Credit Party of principal,
interest, fees or other amounts payable under the Loan Documents. No Loan Party
shall be required to pay any additional amount to any such Foreign Credit Party
under subsection 3.7(a) if such Foreign Credit Party shall have failed to
satisfy the requirements of the immediately preceding sentence; provided that,
if such Foreign Credit Party shall have satisfied such requirements on or prior
to the Effective Date (or, if such Foreign Credit Party is not a signatory
hereto, on or prior to the date it becomes a Foreign Credit Party), nothing in
this subsection shall relieve any Loan Party of its obligation to pay any
additional amounts pursuant to Section 3.7(a) in the event that, as a result of
any Change in Law, such Foreign Credit Party is no longer properly entitled to
deliver certificates, forms, documents or other evidence at a subsequent date
establishing the fact that such Foreign Credit Party is not subject to deduction
or withholding as described in the immediately preceding sentence.
(e) Other Tax Certificates. Each Credit Party agrees to use
reasonable efforts to deliver to any Loan Party or the Administrative Agent,
promptly upon any reasonable request therefor from time to time by such Loan
Party or the Administrative Agent, such certificates, forms, documents and
information as may be required by applicable law, regulation, order, directive,
guideline or treaty from time to time and to file all appropriate forms to
obtain a certificate, form or other appropriate documents from the appropriate
Governmental Authorities to establish that payments made in respect of any
Alternate Currency Loan by such Loan Party can be made without (or at a reduced
rate of) deduction or withholding of Indemnified Taxes, Provided, however, that
if such Credit Party is or becomes unable by virtue of any change in applicable
law, regulation or treaty, to establish such exemption or reduction, such Loan
Party shall nonetheless remain obligated under subsection (a) to pay the amounts
described therein, and provided further that no Credit Party shall be required
to take any action under this subsection which, in the sole discretion of such
Credit Party, would cause such Credit Party or any affiliate thereof to suffer a
material economic, legal or regulatory disadvantage.
3.8. Changes of Lending Offices
If any Credit Party (or its holding company, if any) requests
compensation under Section 3.6(a) or (b) or if the Borrower is required to pay
an additional amount to any Credit Party or any Governmental Authority for the
account of any Credit Party pursuant to Section 3.7, such Credit Party will,
upon the request of the Borrower, use reasonable efforts (subject to its overall
policy considerations) to designate a different lending office for funding or
booking its Revolving Loans or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in its good faith judgment,
such designation or assignment (i) would eliminate or reduce future amounts
payable under Section 3.6(a) or (b) or Section 3.7, as the case may be, (ii)
would not subject such Credit Party to any unreimbursed cost or expense and
(iii) would not otherwise be disadvantageous to such Lender. The Borrower agrees
to pay the reasonable costs and expenses
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incurred in connection with any such designation or assignment and the
Administrative Agent agrees that no assignment fee shall be payable to it
pursuant to Section 11.5(b) in connection therewith. Nothing in this Section 3.8
shall affect or postpone any of the obligations of the Borrower to make the
payments required to a Credit Party under Section 3.6(a) or (b) or Section 3.7,
incurred prior to any such designation or assignment.
3.9. Records
(a) Lender Records. Each of the Lenders will note on its internal
records with respect to each Revolving Loan made by it: (i) the date of such
Revolving Loan, (ii) whether such Revolving Loan is an Alternate Currency Loan
and, if so, the amount of thereof (stated in the applicable Currency), (iii)
whether such Revolving Loan is a Dollar Loan and, if so, whether it consists of
one or more ABR Advances, one or more Eurodollar Advances, or a combination
thereof, and the amount of each thereof, (iv) the interest rate (without regard
to the Applicable Margin) applicable to each Eurodollar Advance and Alternate
Currency Loan, (v) in the case of each Eurodollar Advance and each Alternate
Currency Loan, the Interest Period applicable thereto, and (vi) each payment and
prepayment of the principal of such Revolving Loan.
(b) Administrative Agent Records. The Administrative Agent shall
keep records regarding the Revolving Loans and the Loan Documents in accordance
with its customary procedures for agented credits.
(c) Prima Facie Evidence. The entries made in the records maintained
pursuant to subsections (a) and (b) shall, to the extent not prohibited by
applicable law, be prima facie evidence of the existence and amount of the
obligations of the Borrower recorded therein; provided that the failure of the
Administrative Agent or any Lender, as the case may be, to make any notation on
its records shall not affect the respective obligations of the Loan Parties in
respect of the Loan Documents.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Credit Parties to enter into this Agreement and to
make the Revolving Loans, the Borrower makes the following representations and
warranties to the Credit Parties:
4.1. Organization and Power
Each of the Borrower and each Subsidiary (i) is duly organized or
formed, validly existing and in good standing under the laws of the jurisdiction
of its organization, (ii) has all requisite power and authority to own its
property and to carry on its business as now conducted, and (iii) is duly
qualified to do business and is in good standing in each jurisdiction in which
the nature of the business conducted therein or the property owned by it therein
makes such qualification necessary, except where such failure to qualify or be
in good standing, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse effect.
4.2. Authorization; Enforceability
The Transactions are within the corporate, partnership or other
analogous powers of each of the Borrower and each Subsidiary party thereto and
have been duly
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authorized by its Managing Person and, if required, by any other Person
including holders of its Capital Stock. Each Loan Document has been validly
executed and delivered by each Loan Party party thereto and constitutes a legal,
valid and binding obligation of each such Loan Party, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
4.3. Approvals; No Conflicts
The Transactions (i) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority
or any other Person, except such as have been obtained or made and are in full
force and effect, (ii) will not violate any applicable law, rule or regulation
or the Organizational Documents of the Borrower or any Subsidiary or any order
of any Governmental Authority, (iii) will not violate or result in a default
under any indenture, agreement or other instrument binding upon the Borrower or
any Subsidiary or their assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any Subsidiary, and (iv) will not
result in the creation or imposition of any Lien on any asset of the Borrower or
any Subsidiary other than Permitted Liens.
4.4. Financial Condition; No Material Adverse Change
The Borrower has heretofore furnished to each Credit Party (i) a
copy of its Form 10-K for the fiscal year ending September 30, 1997, containing
the audited consolidated balance sheets of the Borrower and its consolidated
Subsidiaries as of September 30, 1997 and September 30, 1996, and the related
consolidated statements of income, stockholders' equity and cash flows for the
periods then ended, (ii) the unaudited consolidating balance sheets of the
Borrower and its Subsidiaries and the related unaudited consolidating statements
of income, stockholders equity and cash flows as of and for the fiscal year
ended September 30, 1997 and (iii) a copy of its Form 10-Q for the fiscal
quarter ending December 31, 1997, containing the unaudited consolidated balance
sheets of the Borrower and its consolidated Subsidiaries for such fiscal
quarter, together with the related statements of income and cash flows for the
fiscal quarter then ended. Such financial statements present fairly, in all
material respects, the financial position and results of operations and cash
flows of the Borrower and consolidated Subsidiaries as of such dates and for
such periods in accordance with GAAP, subject to year end audit adjustments and
the absence of footnotes in the case of the quarterly and consolidating
statements referred to above in clauses (ii) and (iii). Except as fully
reflected in such financial statements, there are no material liabilities or
obligations of a nature required by GAAP to be set forth in such financial
statements or the footnotes thereto with respect to the Borrower or any of its
Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise
and whether or not due). Since September 30, 1997, there has been no Material
Adverse change.
4.5. Properties
(a) Each of the Borrower and each Subsidiary has good and marketable
title to, or valid leasehold interests in, all of its property, real and
personal, material to its business, subject to no Liens, except Permitted Liens
and except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for
their intended purposes.
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(b) Each of the Borrower and each Subsidiary owns or is licensed to
use all patents, trademarks, tradenames, copyrights and other intellectual
property material to its business, and the use thereof by the Borrower or any
Subsidiary does not conflict with or infringe upon the valid rights of others,
except for any such conflicts or infringements that individually are in the
aggregate, could not reasonably be expected to result in a Material Adverse
effect.
4.6. Litigation
Except as set forth on Schedule 4.6, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether purportedly on behalf of the Borrower or any Subsidiary) pending or, to
the knowledge of the Borrower, threatened against the Borrower or any
Subsidiary, or maintained by the Borrower or any Subsidiary or which may affect
the property of any the Borrower or any Subsidiary, (i) that, in the good faith
opinion of the Borrower, would reasonably be expected to have an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse effect or (ii)
that involve any of the Transactions. Since the Effective Date, there has been
no change in the status of any matter disclosed on Schedule 4.6 that,
individually or in the aggregate, has resulted in a Material Adverse effect.
4.7. Environmental Matters
Except as set forth on Schedule 4.7 and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse effect, neither the Borrower nor any
Subsidiary has (i) received written notice or otherwise learned of any claim,
demand, action, event, condition, report or investigation indicating or
concerning any potential or actual liability which individually or in the
aggregate could reasonably be expected to result in a Material Adverse effect,
arising in connection with any non-compliance with or violation of the
requirements of any applicable laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Substance (as defined
below) or to health and safety matters (collectively, "Environmental Laws"),
(ii) to the best knowledge of the Borrower, any threatened or actual liability
in connection with the release or threatened release of any Hazardous Substance
into the environment which individually or in the aggregate could reasonably be
expected to result in a Material Adverse effect, (iii) received notice of any
federal or state investigation evaluating whether any remedial action is needed
to respond to a release or threatened release of any Hazardous Substance into
the environment for which the Borrower or any of its Subsidiaries is or would be
liable, which liability could reasonably be expected to result in a Material
Adverse effect, or (iv) has received notice that any the Borrower or any of its
Subsidiaries is or may be liable to any Person under any Environmental Law,
which liability could reasonably be expected to result in a Material Adverse
effect. Each of the Borrower and each of its Subsidiaries is in compliance with
the financial responsibility requirements of Environmental Laws to the extent
applicable, except in those cases in which the failure so to comply would not
reasonably be expected to result in a Material Adverse effect. For purposes
hereof, "Hazardous Substance" shall mean any hazardous or toxic substance,
material or waste, including wastes or other pollutants, including petroleum or
petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes, radioactive
materials or any
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other substance or waste regulated pursuant to any Environmental Law. Since the
Effective Date, there has been no change in the status of any matter disclosed
on Schedule 4.7 that, individually or in the aggregate, has resulted in, or
materially increased the likelihood of, a Material Adverse effect.
4.8. Compliance with Laws and Agreements; No Default
Each of the Borrower and each Subsidiary is in compliance with all
laws, regulations and orders of any Governmental Authority applicable to it or
its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
effect. No Default has occurred and is continuing.
4.9. Investment Companies and other Regulated Entities
None of the Borrower, any Subsidiary nor any Person controlled by,
controlling, or under common control with, the Borrower or any Subsidiary, is
(i) an "investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended, (ii) a "holding company" as defined
in, or subject to regulation under, the Public Utility Holding Company Act of
1935 or the Federal Power Act, as amended, or (iii) subject to any statute or
regulation which prohibits or restricts the incurrence of Indebtedness for
borrowed money, including statutes or regulations relative to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone, telegraph
or other public utility services.
4.10. Federal Reserve Regulations
(a) Neither the Borrower nor any Subsidiary is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock. After giving effect to
each Transaction and the making of each Revolving Loan, Margin Stock will
constitute less than 25% of the assets (as determined by any reasonable method)
of the Borrower and the Subsidiaries.
(b) No part of the proceeds of any Revolving Loan will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of Regulation G, U or X.
4.11. ERISA
Each Pension Plan is in compliance with ERISA and the Code, where
applicable, in all material respects and no ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse effect. The present value of all
accumulated benefit obligations under each Pension Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed by more than $500,000 the fair market value of the assets
of such Pension Plan, and the present value of all accumulated benefit
obligations of all underfunded Pension Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial
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statements reflecting such amounts, exceed by more than $500,000 the fair market
value of the assets of all such underfunded Pension Plans.
4.12. Taxes
Each of the Borrower and each Subsidiary has timely filed or caused
to be filed all tax returns and reports required to have been filed and has
paid, or caused to be paid, all Taxes required to have been paid by it except
(i) Taxes being contested in good faith by appropriate proceedings and for which
the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves, or (ii) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse effect.
4.13. Subsidiaries
As of the Effective Date, (i) the Borrower has only the Subsidiaries
set forth on, and the authorized, issued and outstanding Capital Stock of the
Borrower and the Subsidiaries is as set forth on, Schedule 4.13, (ii) each
Subsidiary which is a Foreign Subsidiary and a Material Foreign Subsidiary is so
identified on Schedule 4.13, and (iii) the ownership interests in each
Subsidiary of the Borrower are duly authorized, validly issued, fully paid and
nonassessable and are owned beneficially and of record by the Persons set forth
on such Schedule 4.13, free and clear of all Liens (other than Permitted Liens).
As of the Effective Date, except as set forth on Schedule 4.13, neither the
Borrower nor any of the Subsidiaries has issued any securities convertible into,
or options or warrants for, any common or preferred equity securities thereof
and, except as set forth on Schedule 4.13, there are no agreements, voting
trusts or understandings binding upon the Borrower or any Subsidiary with
respect to the voting securities of any Subsidiary or affecting in any manner
the sale, pledge, assignment or other disposition thereof, including any right
of first refusal, option, redemption, call or other right with respect thereto,
whether similar or dissimilar to any of the foregoing.
4.14. Absence of Certain Restrictions
No indenture, certificate of designation for preferred stock,
agreement or instrument to which the Borrower or any Subsidiary is a party
(other than this Agreement), prohibits or limits in any way, directly or
indirectly the ability of any Subsidiary to make Restricted Payments or loans
to, to make any advance on behalf of, or to repay any Indebtedness to, the
Borrower or to another Subsidiary.
4.15. Labor Relations
As of the Effective Date, there are no material controversies
pending between the Borrower or any Subsidiary which might result in a Material
Adverse effect.
4.16. Insurance
Schedule 4.16 sets forth a description of all insurance maintained
by or on behalf of the Borrower and the Subsidiaries as of the Effective Date.
As of the Effective Date, all premiums in respect of such insurance that are due
and payable have been paid.
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4.17. No Misrepresentation
The Borrower has disclosed to each Credit Party all agreements,
instruments and corporate or other restrictions to which it or any Subsidiary is
subject, and all other matters known to it, that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse effect.
No certificate or report from time to time furnished by any of the Loan Parties
in connection with the Transactions contains or will contain a misstatement of
material fact, or omits or will omit to state a material fact required to be
stated in order to make the statements therein contained not misleading in the
light of the circumstances under which made, provided that any projections or
pro-forma financial information contained therein are based upon good faith
estimates and assumptions believed by the Borrower to be reasonable at the time
made, it being recognized by the Credit Parties that such projections as to
future events are not to be viewed as facts, and that actual results during the
period or periods covered thereby may differ significantly from the projected
results.
ARTICLE 5. CONDITIONS PRECEDENT TO THE INITIAL REVOLVING LOANS
In addition to the conditions precedent set forth in Article 6, the
obligation of the Credit Parties to make Revolving Loan on the first Borrowing
Date shall not become effective until each of the following conditions precedent
have been satisfied (or waived in accordance with Section 11.1):
5.1. Evidence of Action
The Administrative Agent shall have received a certificate, dated
the first Borrowing Date, of the Secretary or Assistant Secretary or other
analogous counterpart of the Borrower and each Subsidiary Guarantor:
(i) attaching a true and complete copy of the resolutions of
its Managing Person and of all documents evidencing all necessary
corporate, partnership or similar action (in form and substance
satisfactory to the Administrative Agent) taken by it to authorize the
Loan Documents to which it is a party and the Transactions;
(ii) attaching a true and complete copy of its Organizational
Documents;
(iii) setting forth the incumbency of its officer or officers
(or other analogous counterpart) who may sign the Loan Documents,
including therein a signature specimen of such officer or officers (or
other analogous counterpart); and
(iv) attaching a certificate of good standing of the Secretary
of State of the jurisdiction of its formation and of each other
jurisdiction in which it is qualified to do business, except, in the case
of such other jurisdiction, when the failure to be in good standing in
such jurisdiction would not result in a Material Adverse effect.
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5.2. This Agreement
The Administrative Agent (or Special Counsel) shall have received,
in respect of each Person listed on the signature pages of this Agreement,
either (i) a counterpart signature page hereof signed on behalf of such Person,
or (ii) written evidence satisfactory to the Administrative Agent (which may
include a facsimile transmission of a signed signature page of this Agreement)
that a counterpart signature page hereof has been signed on behalf of such
Person.
5.3. Notes
The Administrative Agent shall have received Notes for each Lender,
duly executed by a duly authorized officer of the Borrower.
5.4. Opinion of Counsel to the Loan Parties
The Administrative Agent shall have received a favorable opinion of
Cooperman, Levitt, Winikoff, Lester & Newman, P.C., counsel to the Borrower and
each Subsidiary Guarantor, addressed to the Credit Parties (and permitting
Special Counsel to rely thereon), dated the first Borrowing Date, substantially
in the form of Exhibit E.
5.5. Terminating Bank Debt
Prior to or simultaneously with the making of the Revolving Loans on
the first Borrowing Date, the Borrower shall have fully repaid all Terminating
Bank Debt and all agreements with respect thereto shall have been cancelled or
terminated, all Liens, if any, securing the same shall have been terminated, and
the Administrative Agent shall have received satisfactory evidence thereof.
5.6. Security Documents, Search Reports, etc.
The Administrative Agent (or Special Counsel) shall have received a
counterpart each of the Security Agreement and the Subsidiary Guarantee, signed
by each Loan Party thereto (or a facsimile of a signature page of each thereof
signed by such party) together with the following:
(a) a completed Perfection Certificate, dated the first Borrowing
Date and signed by a Financial Officer of the Borrower, together with all
attachments contemplated thereby, including the results of a search of the
Uniform Commercial Code (or equivalent) filings and the results of tax and
judgment lien searches made with respect to each of the Borrower and each
Subsidiary Guarantor in the jurisdictions contemplated by the Perfection
Certificate and such other jurisdictions as the Administrative Agent may
reasonably request, and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements (or
similar documents) are permitted by Section 8.2 or have been released.
(b) where the ownership of a Subsidiary is evidenced by a stock
certificate or other certificated security, one or more stock certificates,
evidencing (i) 100% of the issued and outstanding Capital Stock of each Domestic
Subsidiary owned by the Borrower or any Subsidiary Guarantor, and (ii) not less
than 65% of the issued and outstanding Capital Stock of each Material Foreign
Subsidiary owned by the Borrower or any
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Subsidiary Guarantor, in each case, together undated stock powers with respect
thereto, executed in blank by the Borrower or such Subsidiary Guarantor, as the
case may be, and bearing a signature guarantee in all respects satisfactory to
the Administrative Agent;
(c) Instruments (as defined in the Security Agreement) and
Intercompany Notes constituting Collateral, duly indorsed in blank by the
Borrower or such Subsidiary Guarantor, as the case may be;
(d) such Uniform Commercial Code Financing Statements, executed by
the Borrower and each Subsidiary Guarantor as shall be reasonably requested by
the Administrative Agent;
(e) such consents to pledge or similar documents in connection with
the pledge of an interest in a limited liability company; and
(f) such other documents as the Administrative Agent may require in
connection with the creation and perfection of the security interests intended
to be granted under the Security Documents.
5.7. Financial Officer's Certificate
The Administrative Agent shall have received a certificate of a
Financial Officer of the Borrower, in all respects satisfactory to the Agents,
attaching the following:
(a) a pro-forma Compliance Certificate in all respects
satisfactory to the Administrative Agent and after giving effect to the
Revolving Loans to be made on the first Borrowing Date, provided that,
notwithstanding anything to the contrary contained herein, for purposes of
such pro-forma Compliance Certificate, if the first Borrowing Date is not
the last day of a fiscal quarter, any calculation which would otherwise be
based upon the four fiscal quarter period ending on the relevant date of
determination shall be based upon the four fiscal quarter period
immediately preceding the first Borrowing Date; and
(b) unaudited consolidated and consolidating projected
condensed pro-forma balance sheets and unaudited projected condensed
pro-forma statements of income of the Borrower and the Subsidiaries,
presenting the projected condensed pro-forma consolidated and
consolidating financial condition of the Borrower and the Subsidiaries and
the pro-forma consolidated and consolidating statements of income of the
Borrower and the Subsidiaries for the 1998 and 1999 fiscal years, prepared
after giving effect to the making of the Revolving Loans hereunder, in
form and substance satisfactory to the Administrative Agent.
5.8. Approvals
The Administrative Agent shall have received evidence reasonably
satisfactory to it that all approvals and consents of all Persons required to be
obtained in connection with the consummation of the Transactions have been
obtained and that all required notices have been given and all required waiting
periods have expired.
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5.9. Property, Public Liability and Other Insurance
The Administrative Agent shall have received a certificate of all
insurance maintained by the Borrower and the Subsidiaries in form and substance
reasonably satisfactory to the Administrative Agent, together with the
endorsements required by Section 5.5 of the Security Agreement.
5.10. Fees and Expenses
The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, (i) the
expenses incurred in connection with the collateral audit previously delivered
to the Agent and (ii) to the extent invoiced, reimbursement or payment of the
fees and disbursements of Special Counsel and all other out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
5.11. Other Documents
The Administrative Agent shall have received such other documents,
each in form and substance reasonably satisfactory to it, as it shall reasonably
request.
The Administrative Agent shall notify the Borrower and each Credit Party of the
date upon which each of the foregoing conditions precedent have been satisfied
(or waived in accordance with Section 11.1), and such notice shall be conclusive
and binding. Notwithstanding the foregoing, the obligations of the Credit
Parties to make Revolving Loans shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 11.1) on or
before April 30, 1998 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
ARTICLE 6. CONDITIONS PRECEDENT TO EACH REVOLVING LOAN
The obligation of each Credit Party to make any Revolving Loan under this
Agreement shall be subject to the satisfaction of the following conditions
precedent as of the date thereof:
6.1. Compliance
On each Borrowing Date and after giving effect to the Revolving
Loans to be made thereon (i) no Default shall have occurred or be continuing;
and (ii) the representations and warranties contained in the Loan Documents
shall be true and correct with the same effect as though such representations
and warranties had been made on such Borrowing Date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true and correct on and
as of such earlier date. Each Revolving Loan and each Borrowing Request therefor
shall constitute a certification by the Borrower as of such Borrowing Date that
each of the foregoing matters is true and correct in all respects.
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6.2. Borrowing Request
The Administrative Agent shall have received a Borrowing Request,
executed by a duly authorized officer of the Borrower.
6.3. Law
Such Revolving Loan not be prohibited by any applicable law, rule or
regulation.
ARTICLE 7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as any Revolving Commitment is in effect
and until the principal of, and interest on, each Revolving Loan, all Fees and
all other amounts payable under the Loan Documents shall have been paid in full:
7.1. Financial Statements and Information
The Borrower shall furnish or cause to be furnished to the
Administrative Agent and each Lender:
(a) within 120 days after the end of each fiscal year:
(i) a copy of its Form 10-K filed with the SEC for such
year containing the audited consolidated balance sheet and related
statements of income, stockholders' equity and cash flows as of the end
of and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by the Accountants
(without (x) a "going concern" or like qualification or exception, (y)
any qualification or exception as to the scope of such audit or (z) any
qualification or exception which relates to the treatment or
classification of any item and which, as a condition to the removal of
such qualification, would require an adjustment to such item, the effect
of which would be to cause the Borrower to be in default of any of its
obligations under Section 8.14 (each, an "Impermissible Qualification"))
to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(ii) a copy of its unaudited consolidating balance
sheet and related statements of income, stockholders' equity and cash
flows as of the end of and for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, certified by a
Financial Officer as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidating basis in accordance with
GAAP consistently applied, together with a schedule of other financial
information consisting of consolidating or combining details in columnar
form with such consolidated Subsidiaries separately identified, in
accordance with GAAP consistently applied;
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(b) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year:
(i) a copy of its Form 10-Q filed with the SEC
containing a copy of its consolidated balance sheet and the related
consolidated statements of income and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, subject to normal year-end
audit adjustments and the absence of footnotes;
(ii) a copy of its consolidating balance sheet and
related statements of income, and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of such fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, in each case on a Subsidiary
basis and divisional basis, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated
Subsidiaries on a consolidating basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes, together with a schedule of other financial
information consisting of consolidating or combining details in columnar
form with such consolidating Subsidiaries separately identified, in
accordance with GAAP consistently applied;
(c) concurrently with any delivery of financial statements
under subsections (a) or (b) above, a certificate (a "Compliance Certificate")
of a Financial Officer of the Borrower, substantially in the form of Exhibit D,
(i) certifying as to whether a Default has occurred and, if so, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Section 8.14 and (iii) stating whether any change in GAAP or in
the application thereof has occurred since the date of the audited financial
statements referred to in Section 4.4 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such Compliance Certificate;
(d) concurrently with any delivery of financial statements
under subsection (a) above, a certificate of the Accountants stating whether
they obtained knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) concurrently with any delivery of financial statements
under subsection (a) above, a certificate executed by a Financial Officer of the
Borrower (i) setting forth the information required pursuant to Section 2 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of such certificate or the date of the most recent
certificate delivered pursuant to this subsection (e), (ii) certifying that all
Uniform Commercial Code financing statements or other appropriate filings,
recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to
protect and perfect the security interest of the Administrative Agent for a
period of not less than 18 months after the date of such
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certificate (except as noted therein with respect to any continuation statements
to be filed within such period) and (iii) identifying in the format of Schedules
7 and 8, as applicable, Equity Interests (as defined in the Security Agreement),
Instruments (as defined in the Security Agreement) of the Borrower and each
Subsidiary Guarantor in existence on the date thereof and not then listed on
such Schedules or previously so identified to the Administrative Agent;
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the SEC or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be;
(g) within ten Business Days after the issuance of its Form
10-K in respect of each fiscal year (but in no event later than 120 days after
the end of such fiscal year), a projected balance sheet, income statement and
statement of cash flow for the coming fiscal year, in each case on a quarter by
quarter basis;
(h) within ten Business Days after the issuance of its Form
10-Q in respect of each fiscal quarter (but in no event later than 60 days after
the end of such fiscal quarter), (i) a detailed consolidating statement of the
aging of all accounts receivables, accounts payable and inventory (raw material,
work in process and finished goods), and (ii) schedules of backlog, in each case
as of the end of such fiscal quarter; and
(i) promptly following any request therefor, such other
information regarding the Borrower or any Subsidiary, or compliance with the
terms of this Agreement, as any Credit Party may reasonably request.
7.2. Notice of Material Events
The Borrower shall furnish to the Administrative Agent and each
Lender, prompt written notice of the following together with a statement of a
Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and, if applicable,
any action taken or proposed to be taken with respect thereto:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any Governmental Authority against or affecting the
Borrower or any Subsidiary that, if adversely determined, could in the good
faith opinion of the Borrower reasonably be expected to result in a Material
Adverse effect;
(c) any lapse, refusal to renew or extend or other termination
of any material license, permit, franchise or other authorization issued to the
Borrower or any Subsidiary by any Person or Governmental Authority, which lapse,
refusal or termination, could reasonably be expected to result in a Material
Adverse effect;
(d) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse effect;
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(e) the occurrence of any insured damage to any portion of any
Collateral in an amount in excess of $1,000,000 or the commencement of any
action or proceeding for the taking of any Collateral or any part thereof or
interest therein under power of eminent domain or by condemnation or similar
proceeding; or
(f) the occurrence of any other development that has or could
reasonably be expected to result in, a Material Adverse effect.
7.3. Existence; Conduct of Business
The Borrower shall, and shall cause each Subsidiary to, do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect (i) its legal existence (provided that the foregoing shall not prohibit
any merger or consolidation not prohibited by Section 8.3), and (ii) all rights,
licenses, permits, privileges and franchises the absence of which would
reasonably be expected to have a Material Adverse effect.
7.4. Payment of Obligations
The Borrower shall, and shall cause each Subsidiary to, pay and
discharge when due, its obligations, including obligations with respect to
Taxes, which, if unpaid, could reasonably be expected to result in a Material
Adverse effect, except where (i) the validity or amount thereof is being
contested in good faith by appropriate proceedings diligently conducted, (ii)
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP and (iii) the failure to make
payment pending such contest could not reasonably be expected to result in a
Material Adverse effect.
7.5. Maintenance of Properties
The Borrower shall, and shall cause each Subsidiary to, maintain,
protect and keep in good repair, working order and condition (ordinary wear and
tear excepted) at all times, all of its property other than (i) property, the
loss of which would not reasonably be expected to have a Material Adverse effect
and (ii) destroyed or damaged property which is replaced during the Reinvestment
Period.
7.6. Insurance
The Borrower shall, and shall cause each Subsidiary to, maintain
with financially sound and reputable insurance companies, (i) insurance in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption coverage) as are
usually insured against in the same general area by companies engaged in the
same or a similar business and (ii) such other insurance as is required pursuant
to the terms of any Security Document, and furnish to the Administrative Agent,
upon written request, full information as to the insurance carried.
7.7. Books and Records: Inspection Rights
The Borrower shall, and shall cause each Subsidiary to, keep proper
books of record and account in which full, true and correct entries are made of
all dealings and transactions in relation to its business and activities and, at
all reasonable times upon reasonable prior notice, permit representatives of the
Credit Parties to (i) visit the offices
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of the Borrower and each Subsidiary, (ii) examine such books and records and
Accountants' reports relating thereto, (iii) make copies or extracts therefrom,
(iv) discuss the affairs of the Borrower and each such Subsidiary with the
respective officers thereof, (v) to examine and inspect the property of the
Borrower and each such Subsidiary and (vi) meet and discuss the affairs of the
Borrower and each such Subsidiary with the Accountants.
7.8. Compliance with Laws
The Borrower shall, and shall cause each Subsidiary to, comply with
all laws, rules, regulations and orders of any Governmental Authority applicable
to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
effect.
7.9. Additional Subsidiaries
(a) Domestic Subsidiaries. In the event that on or after the
Effective Date, any Person shall become a Domestic Subsidiary, or any Subsidiary
(other than a Subsidiary Guarantor) shall at any time be a Domestic Subsidiary,
the Borrower shall (i) notify the Administrative Agent in writing thereof within
ten Business Days thereof, (ii) cause such Person to execute and deliver to the
Administrative Agent a Guarantee Supplement (as defined in the Subsidiary
Guarantee) and to become a party to each applicable Security Document in the
manner provided therein within 15 Business Days thereafter and to promptly take
such actions to create and perfect Liens on such Person's assets to secure such
Person's obligations under the Loan Documents as the Administrative Agent or the
Required Lenders shall reasonably request, (iii) cause any shares of Capital
Stock (if evidenced by certificated securities) of such new Domestic Subsidiary
owned by or on behalf of any Loan Party to be pledged pursuant to the Security
Agreement within 15 Business Days thereafter, (iv) cause the Borrower (and any
other Loan Party which makes a loan or similar advance to such new Domestic
Subsidiary) to deliver an Intercompany Note executed by such new Domestic
Subsidiary and endorsed by the Borrower (and any such other Loan Party) to be to
be pledged pursuant to the Security Agreement within 15 Business Days
thereafter, (v) cause each such new Domestic Subsidiary to deliver to the
Administrative Agent any shares of Capital Stock (if evidenced by certificated
securities) of, or promissory notes evidencing Indebtedness of, any Subsidiary
that are owned by or on behalf of such new Domestic Subsidiary within 15
Business Days after such Subsidiary is formed or acquired (except that, if any
such Subsidiary is a Material Foreign Subsidiary, shares of Capital Stock of
such Person to be so pledged may be limited as provided in subsection (b) below
and, if requested by the Administrative Agent with respect to the pledge of
Capital Stock of a Material Foreign Subsidiary, the Administrative Agent shall
receive the documents referred to in subsection (b)(iii) below), and (vi)
deliver to the Administrative Agent a Perfection Certificate with respect to
such Subsidiary, such additional Financing Statements, Grants of Security
Interest and Powers of Attorney (as each such term is defined in the Security
Agreement) certificates, instruments and opinions as the Administrative Agent
may request.
(b) Foreign Subsidiaries. In the event that on or after the
Effective Date, any Person shall become a Material Foreign Subsidiary, the
Borrower shall (i) notify the Administrative Agent in writing thereof within ten
Business Days thereof, (ii) cause such Person to execute and deliver to the
Administrative Agent an Intercompany Subordination Agreement or a Supplement
thereto, (iii) cause the lesser of (x) 65% of the outstanding shares of Capital
Stock of such Material Foreign Subsidiary or (y) all of such
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shares owned by the Loan Parties to be pledged pursuant to the Security
Agreement within five Business Days thereafter, provided, that if requested by
the Administrative Agent with respect to the pledge of Capital Stock of a
Material Foreign Subsidiary, deliver to the Administrative Agent an additional
pledge agreement, in form and substance reasonably satisfactory to the
Administrative Agent (each an "Additional Pledge Agreement") and an opinion of
counsel (including counsel practicing under the laws of the jurisdiction under
which such Material Foreign Subsidiary was formed) with respect to the
enforceability of such Pledge Agreement or Additional Pledge Agreement and the
validity and perfection of the Lien granted therein, (iv) if the aggregate
principal amount of the Indebtedness of such Foreign Subsidiary to the Borrower
(and any other Loan Party) incurred after the Effective Date exceeds $500,000,
or if the aggregate principal amount of the Indebtedness of all Foreign
Subsidiaries to the Borrower or any other Loan Party incurred after the
Effective Date exceeds $1,000,000, promptly deliver to the Administrative Agent
Intercompany Notes evidencing such Indebtedness, and (v) deliver to the
Administrative Agent such certificates, instruments and opinions as the
Administrative Agent may request.
(c) Concerning Foreign Subsidiaries. If a Foreign Subsidiary which
was not a Material Foreign Subsidiary at any time becomes a Material Foreign
Subsidiary (or a Domestic Subsidiary) the Borrower shall, within 15 Business
Days thereof, (i) notify the Administrative Agent thereof and (ii) deliver to
the Administrative Agent the documents required by subsection (a) or (b) above,
as applicable.
7.10. Additional Collateral
If after the Effective Date, the Borrower or any Subsidiary
Guarantor acquires any property which would constitute Collateral, within ten
Business Days thereafter, the Borrower shall, and shall cause each such Loan
Party to, execute any and all documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements and other documents), that may be required
under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to grant, preserve, protect or perfect the Liens
created or intended to be created by the Security Documents or the validity or
priority of any such Lien, all at the expense of the Borrower.
ARTICLE 8. NEGATIVE COVENANTS
The Borrower agrees that, so long as any Revolving Commitment is in
effect and until the principal of, and interest on, each Revolving Loan, all
Fees and all other amounts payable under the Loan Documents shall have been paid
in full:
8.1. Indebtedness
The Borrower shall not, and shall not permit any Subsidiary to,
create, incur, assume or suffer to exist any liability for Indebtedness, except:
(a) Indebtedness due under the Loan Documents;
(b) Indebtedness of the Borrower or any Subsidiary existing on
the Effective Date as set forth on Schedule 8.1 (other than the Terminating Bank
Debt
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<PAGE>
which is to be repaid on the Effective Date), and any extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof;
(c) Indebtedness of the Borrower to any Subsidiary or of
Subsidiaries to the Borrower or other Subsidiaries, provided that (A)
Indebtedness of the Borrower or any Subsidiary Guarantor to a Subsidiary that is
not a Subsidiary Guarantor shall be subordinated pursuant to the Intercompany
Subordination Agreement, (B) the principal amount of any Indebtedness of any
Subsidiary that is not a Subsidiary Guarantor to the Borrower or any Subsidiary
Guarantor shall not exceed $2,500,000, and (C) immediately after giving effect
to any Indebtedness of any Subsidiary that is not a Subsidiary Guarantor to the
Borrower or any Subsidiary Guarantor, the Available Intercompany Investment
Amount shall not be less than $1.00;
(d) Guarantees by the Borrower of Indebtedness of its
Subsidiaries or Guarantees by any Subsidiary of Indebtedness of the Borrower or
of any other Subsidiary, provided that with respect to Guarantees by the
Borrower or any Subsidiary Guarantor of Indebtedness of a Subsidiary that is not
a Subsidiary Guarantor (A) such Guarantees shall be subordinated pursuant to the
Intercompany Subordination Agreement, (B) the principal amount of any such
Guaranty shall not exceed $2,500,000, and (C) immediately after giving effect
thereto, the Available Intercompany Investment Amount shall not be less than
$1.00;
(e) (i) Indebtedness of the Borrower or any Subsidiary (A)
incurred to finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations, (B) assumed in connection
with the acquisition of any such assets or (C) secured by a Lien on any such
assets, (ii) Indebtedness of any Person that becomes a Subsidiary of the
Borrower after the Effective Date, or (iii) extensions, renewals and
replacements of any Indebtedness under this Section 8.1(e) that do not increase
the outstanding principal amount thereof, provided that Indebtedness under this
subsection 8.1(e) shall not (x) exceed an amount equal to $3,000,000 in
aggregate principal amount at any one time outstanding minus the fair market
value of all property securing any Lien under Section 8.2(c), and (y) except
with respect to Indebtedness under clause (i)(A) of this Section 8.1(e), be
created, assumed or incurred in contemplation of or in connection with any such
acquisition or such Person becoming a Subsidiary.
(f) other unsecured Indebtedness of the Borrower or any
Subsidiary not in excess of $2,000,000 in the aggregate excluding Indebtedness
(A) of Subsidiaries to the Borrower or other Subsidiaries, and (B) under the
Loan Documents, provided that no Default shall exist immediately before and
after giving effect thereto and all of the representations and warranties
contained in Article 4 shall be true and correct as if then made (except to the
extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have been true and
correct on and as of such earlier date).
(g) unsecured Indebtedness of the Borrower (the "Refinancing
Debt"), provided that: (i) no Default shall exist immediately before and after
giving effect thereto and all of the representations and warranties contained in
Article 4 shall be true and correct as if then made (except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true and correct on and
as of such earlier date), (ii) the terms and conditions of
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<PAGE>
the note or other agreements pursuant to which the Refinancing Debt is issued
(collectively, the "Refinancing Debt Documents") are no less favorable taken as
a whole to the Borrower that the terms and conditions of this Agreement, (iii)
the Refinancing Debt shall be either pari passu with, or subordinated to, the
Indebtedness under the Loan Documents, (iv) the maturity of such Indebtedness is
not earlier than one year after the Maturity Date, (v) interest thereon is
payable in cash, (vi) the Net Cash Proceeds thereof in excess of $5,000,000 are
applied to the permanent reduction of the Aggregate Revolving Commitment and
prepayment of the Revolving Loans pursuant to Sections 2.3 and 2.4, and (vii)
the Administrative Agent receives a copy of the agreement, indenture or other
documents governing such Refinancing Debt, which shall be in form and substance
reasonably satisfactory to the Administrative Agent.
8.2. Negative Pledge
The Borrower shall not, and shall not permit any Subsidiary to,
create, incur, assume or suffer to exist any Lien upon any of its property,
whether now owned or hereafter acquired, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except for the following (collectively, "Permitted Liens"):
(a) any Customary Lien;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the Effective Date and set forth on Schedule 8.2,
provided that (i) except as set forth on such Schedule, such Lien shall not
apply to any other property or asset of the Borrower or any Subsidiary and (ii)
such Lien shall secure only those obligations which it secures on the Effective
Date and extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien on any fixed or capital asset of the Borrower or any
Subsidiary, provided that such Lien shall have been incurred prior to the
acquisition of such asset by the Borrower or such Subsidiary, or prior to the
time such Person became a Subsidiary of the Borrower, but in any event such Lien
shall not have been created in contemplation of or in connection with the
acquisition of such asset, or the creation or acquisition of any Person that,
after giving effect thereto, is a Subsidiary of the Borrower, and provided
further that (i) such Lien shall not apply to any other property or assets of
the Borrower or any Subsidiary (other than fixed assets which constitute
fixtures thereon or accessions thereto), (ii) at the time of acquisition of any
such fixed asset, the aggregate amount remaining unpaid on all liabilities
secured by Liens on such fixed asset, whether or not assumed by the Borrower or
a Subsidiary, shall not exceed the fair market value at the time of acquisition
of such fixed asset (as determined in good faith by the Board of Directors of
the Borrower), (iii) at the time of the incurrence of such liabilities and after
giving effect thereto and to the application of the proceeds thereof, no Default
would exist and (iv) immediately after giving effect thereto, the fair market
value of all property securing any Lien under this Section 8.2(c) shall not
exceed an amount equal to $3,000,000 minus the outstanding principal amount of
Indebtedness incurred pursuant to Section 8.1(e).
(d) Liens on Margin Stock, if and to the extent that the value of
the Margin Stock of the Borrower and its Subsidiaries exceeds 25 % of the assets
(as determined by any reasonable method) of the Borrower and its Subsidiaries.
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<PAGE>
(e) Liens incurred in connection with the purchase of inventory and
other goods in the ordinary course of business on customary trade terms.
8.3. Fundamental Changes
The Borrower shall not, and shall not permit Subsidiaries to,
consolidate or merge into or with any other Person, or permit any other Person
to merge into or consolidate with it or any of the Subsidiaries, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets, or all or substantially
all of any class of the Capital Stock of any of the Subsidiaries (in each case,
whether now owned or hereafter acquired), or liquidate or dissolve, or permit
any Subsidiaries to do any of the foregoing, except that so long as immediately
before and after giving effect thereto, no Default shall exist:
(a) the Borrower may merge with any Subsidiary Guarantor and any
Subsidiary Guarantor may merge with the Borrower or any other Subsidiary
Guarantor, provided that in connection with any merger involving the Borrower,
the Borrower shall be the survivor thereof;
(b) any Subsidiary which is not a Subsidiary Guarantor may merge
with any other Subsidiary which is not a Subsidiary Guarantor;
(c) any Subsidiary which is not a Subsidiary Guarantor may merge
with any Subsidiary Guarantor, and any Subsidiary Guarantor may merge with any
Subsidiary which is not a Subsidiary Guarantor, provided that (i) immediately
after giving effect to any such merger in which such Subsidiary Guarantor is the
survivor, the Available Intercompany Investment Amount shall not be less than
$1.00, (ii) with respect to any merger in which such Subsidiary Guarantor is not
the survivor, such merger shall be treated as a Disposition for all purposes of
Sections 2.4(b)(i) and 8.6(d);
(d) the Borrower or any Subsidiary may merge with any Person that is
not a Subsidiary, provided that (i) in connection with any such merger involving
the Borrower, the Borrower shall be the survivor thereof, (ii) with respect to
any such merger involving a Subsidiary in which, immediately after giving effect
thereto, the surviving Person is not a Subsidiary, such merger shall be treated
as a Disposition for all purposes of Sections 2.4(b)(i) and 8.6(d), (iii) with
respect to any such merger involving a Loan Party in which, immediately after
giving effect thereto, the surviving Person is a Subsidiary, (A) immediately
after giving effect to any such merger, the Available Other Investment Amount
shall not be less than $1.00, and (B) such merger shall be treated as an
Acquisition for all purposes of Section 8.5;
(e) any Subsidiary may make any Disposition permitted by Sections
8.6(c) or (d); and
(f) any Subsidiary other than a Subsidiary Guarantor may liquidate
or dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders.
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<PAGE>
8.4. Investments, Loans, Advances and Guarantees
The Borrower shall not, and shall not permit any Subsidiary to,
purchase or otherwise acquire, hold or invest in any derivative product, or any
Capital Stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of any Person,
or make or permit to exist any investment or any other interest in, any other
Person, except:
(a) investments in Cash Equivalents;
(b) investments existing on the Effective Date as set forth on
Schedule 8.4;
(c) investments by the Borrower or any Subsidiary in the Capital
Stock of or debt issued by the Borrower and investments by any Subsidiary in the
Capital Stock of or debt issued by any other Subsidiary, provided that (i) the
proceeds of such investment in a Borrower or a Subsidiary Guarantor shall be
received by the Borrower or such Subsidiary Guarantor, and (ii) immediately
after giving effect to each investment by the Borrower or any Subsidiary
Guarantor in the Capital Stock of or debt issued by any Subsidiary that is not a
Subsidiary Guarantor, the Available Intercompany Investment Amount shall not be
less than $1.00;
(d) purchases or other acquisitions (including through a dividend or
otherwise and whether in a single transaction or in a series of related
transactions) (i) by the Borrower or any Subsidiary of any property or assets
(other than in the ordinary course of business) from any other Subsidiary in a
transaction permitted by Section 8.11 or (ii) by any Subsidiary of any property
or assets (other than in the ordinary course of business) from the Borrower or
any other Subsidiary in a transaction permitted by Section 8.11, provided that
immediately after giving effect to any such purchase or acquisition between a
Loan Party, as purchaser, and a Subsidiary which is not a Subsidiary Guarantor,
as seller, the Available Intercompany Investment Amount shall not be less than
$1.00;
(e) Acquisitions permitted by Section 8.5;
(f) Guarantees permitted by Section 8.1(d) and Secured Hedging
Agreements permitted by Section 8.8; and
(g) other investments (including Unconsolidated Investments,
provided that (A) no Default shall or would exist immediately before or after
giving effect thereto, (B) all of the representations and warranties contained
in Article 4 shall be true and correct as if then made (except to the extent
such representations and warranties specifically relate to an earlier date, in
which case such representations and warranties shall have been true and correct
on and as of such earlier date), and (C) immediately after giving effect
thereto, the Available Other Investment Amount shall not be less than $1.00.
8.5. Acquisitions
The Borrower shall not, and shall not permit any Subsidiary to, at
any time, make any purchase or other acquisition (including by way of a dividend
received or otherwise and whether in a single transaction or in a series of
related transactions and including each of the Pending Acquisitions) of (i) any
assets of any other Person that, taken
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<PAGE>
together, constitute a business unit, (ii) any Capital Stock of any other Person
if, immediately thereafter, such other Person would be a Subsidiary of the
Borrower (iii) any assets of any other Person otherwise not in the ordinary
course of business, (iv) enter into any binding agreement to perform any
transaction described in clauses (i), (ii) or (iii) above which is not
contingent on obtaining the consent of the Required Lenders (each transaction
described in clauses (i), (ii), (iii) and (iv) above being referred to as an
"Acquisition"), or (v) make any deposit in connection with any potential
Acquisition, except that the Borrower or any Subsidiary Guarantor may make an
Acquisition, provided that:
(a) no Default shall or would exist immediately before or after
giving effect to each such Acquisition and all of the representations and
warranties contained in Article 4 shall be true and correct as if then made
(except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties shall have
been true and correct on and as of such earlier date),
(b) immediately after giving effect thereto, the Available Other
Investment Amount shall not be less than $1.00,
(c) with respect to each such Acquisition, the sum of (i) the cash
consideration paid or agreed to be paid in connection with such Acquisition plus
(ii) an amount equal to the principal or stated amount of all liabilities
assumed or incurred by such Person or any Loan Party in connection therewith
shall not exceed $3,000,000,
(d) the Borrower shall have delivered to the Administrative Agent
and each Lender (i) notice thereof not less than ten days prior to the
consummation of such Acquisition, and (ii) a certificate of a Financial Officer
thereof, in all respects reasonably satisfactory to the Administrative Agent and
dated the date of such consummation, certifying that no Default has occurred and
is continuing, and setting forth reasonably detailed calculations demonstrating
compliance with Section 8.14 on a pro-forma basis (after giving effect to such
Acquisition and based on the most recent financial statements delivered pursuant
to Section 7.1), and
(e) the Borrower shall have delivered to the Administrative Agent
such other information, documents and other items as the Administrative Agent
shall have reasonably requested.
8.6. Dispositions
The Borrower shall not, and shall not permit any Subsidiary to,
sell, assign, lease, transfer or otherwise dispose of any property or assets,
except:
(a) (i) sales of inventory in the ordinary course of business and
sales of Unconsolidated Investments, (ii) sales, assignments, transfers or other
dispositions of any property or assets that, in the reasonable opinion of the
Borrower or such Subsidiary, as the case may be, are obsolete or no longer
useful in the conduct of its business, and (iii) Cash Equivalents;
(b) sales of Margin Stock, if and to the extent that the value of
the Margin Stock of the Borrower and the Subsidiaries exceeds 25% of the value
of the assets (as determined by any reasonable method) of the Borrower and the
Subsidiaries;
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<PAGE>
(c) sales, assignments, leases, transfers or other dispositions of
any property or assets by the Borrower to any Subsidiary and by any Subsidiary
to the Borrower or any other such Subsidiary, provided that immediately after
giving effect to any such transaction between a Loan Party and a Subsidiary
which is not a Subsidiary Guarantor, the Available Intercompany Investment
Amount shall not be less than $1.00;
(d) sales, assignments, leases, transfers or other dispositions
(each a "Disposition ") not otherwise described in this Section 8.6, provided
that (i) immediately before and after giving effect to each such Disposition, no
Default shall or would exist, (ii) 75% of the total consideration received or to
be received therefor by the Borrower or the Subsidiaries shall be payable in
cash or Cash Equivalents on or before the closing thereof and shall not be less
than the fair market value thereof as reasonably determined by the Managing
Person of the Borrower or such Subsidiary, (iii) the Administrative Agent and
the Lenders shall have received (A) written notice thereof not less than ten
Business Days prior to each such Disposition, and (B) a certificate in respect
thereof signed by a duly authorized officer of the Borrower identifying the
property or other asset subject to such Disposition, and certifying that the
consideration received or to be received by the Borrower or such Subsidiary for
such property has been determined by the Managing Person thereof to be not less
than the fair market value of such property and (z) the total consideration to
be paid in respect of such Disposition, together with estimates of items to be
deducted therefrom in arriving at the Net Cash Proceeds thereof.
8.7. Restricted Payments
The Borrower shall not, and shall not permit any Subsidiaries to
declare, pay or make any dividend or other distribution, direct or indirect, on
account of any Capital Stock issued by such Person now or hereafter outstanding
(other than a dividend payable solely in shares or other units of such Capital
Stock to the holders of such shares or other units) or any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition,
direct or indirect, of any shares of any class of its Capital Stock now or
hereafter outstanding (collectively, "Restricted Payments"), except Restricted
Payments made by the Borrower to any Subsidiary or made by any Subsidiary to any
other Subsidiary or to the Borrower, provided that (i) in the case of any
Restricted Payment made by the Borrower to any Subsidiary, immediately before
and after giving effect thereto, no Default shall or would exist, and (ii) in
the case of a Restricted Payment made by a Loan Party to a Subsidiary which is
not a Subsidiary Guarantor, immediately after giving effect thereto, the
Available Intercompany Investment Amount shall not be less than $1.00.
8.8. Hedging Agreements
The Borrower shall not, and shall not permit any Subsidiary to,
enter into any Hedging Agreements, other than Hedging Agreements entered into in
the ordinary course of business to hedge or mitigate risks to which the Borrower
or any Subsidiary is exposed in the conduct of its business or the management of
its liabilities.
8.9. Sale and Lease-Back Transactions
The Borrower shall not, and shall not permit any Subsidiary to,
enter into an arrangement with any Person or group of Persons providing for the
renting or leasing by the Borrower or any Subsidiary of any property or asset
which has been or is to be sold or transferred by the Borrower or any Subsidiary
to any such Person.
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<PAGE>
8.10. Lines of Business
The Borrower shall not, and shall not permit any Subsidiary to,
engage in any business other than the Line of Business.
8.11. Transactions with Affiliates
The Borrower shall not, and shall not permit any Subsidiary to,
become a party to any transaction with an Affiliate, or permit any Subsidiary so
to do, unless the Borrower's or such Subsidiary's Managing Person shall have
determined that the terms and conditions relating thereto are as favorable to
the Borrower or such Subsidiary as those which would be obtainable at the time
in a comparable arms-length transaction with a Person other than an Affiliate.
8.12. Use of Proceeds
The Borrower shall not use the proceeds of the Revolving Loans for
any purpose other than to (i) repay the Terminating Bank Debt, (ii) pay all of
the Fees due hereunder, (iii) pay the reasonable out-of-pocket fees and expenses
incurred by the Borrower in connection with the Loan Documents, (iv) for the
Borrower's working capital purposes not inconsistent with the provisions hereof,
and (v) for Capital Expenditures provided, however, that no part of such
proceeds will be used, directly or indirectly, for a purpose which violates any
law, including the provisions of Regulation G, T, U or X.
8.13. Restrictive Agreements
The Borrower shall not, and shall not permit any Subsidiary to,
directly or indirectly, enter into, incur or permit to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon (i)
the ability of the Borrower or any such Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets, or (ii) the ability of any
such Subsidiary to pay dividends or other distributions with respect to any
shares of its Capital Stock or to make or repay loans or advances to the
Borrower or any other Subsidiary of the Borrower or to Guarantee Indebtedness of
the Borrower or any other Subsidiary of the Borrower, provided that (A) the
foregoing shall not apply to restrictions and conditions imposed by applicable
law or by any Loan Document and (B) the foregoing shall not apply to
restrictions and conditions existing on the Effective Date identified on
Schedule 8.13 (but shall apply to any extension or renewal of, or any amendment
or modification expanding the scope of, any such restriction or condition), (C)
the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary or the assets thereof to the
extent permitted by this Agreement, in each case pending such sale, provided
such restrictions and conditions apply only to such Subsidiary or such assets,
and (D) clause (i) above shall not apply to (x) restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (y) customary provisions in leases
restricting the assignment thereof.
8.14. Financial Covenants
(a) Leverage Ratio. The Borrower shall not permit the Leverage Ratio
to be greater than 1.50:1.00 at any time.
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<PAGE>
(b) Ratio of Total Liabilities to Tangible Net Worth. The Borrower
shall not permit the ratio of (i) Consolidated Total Liabilities minus the sum
of (x) cash and (y) Cash Equivalents to the extent such sum exceeds $1,600,000
to Consolidated Tangible Net Worth to exceed, as of the last day of any fiscal
quarter during the periods set forth below, the ratios set forth below:
<TABLE>
<CAPTION>
Periods Ratio
------- -----
<S> <C>
Effective Date through
September 30, 1998 1.60:1.00
October 1, 1998 and
thereafter 1.30:1.00.
</TABLE>
(c) Consolidated Working Capital. The Borrower shall not permit
Consolidated Working Capital to be less than, as of the last day of any fiscal
quarter during the periods set forth below, the amounts set forth below:
<TABLE>
<CAPTION>
Periods Ratio
------- -----
<S> <C>
Effective Date through
September 29, 1998 $30,000,000
September 30, 1998 and
thereafter $40,000,000.
</TABLE>
(d) Quick Ratio. The Borrower shall not permit the Quick Ratio to be
less than 0.70:1.00 as of the last day of any fiscal quarter.
(e) Consolidated Tangible Net Worth. The Borrower shall not permit
Consolidated Tangible Net Worth to be less than, as of the last day of any
fiscal quarter, an amount equal to $48,400,000 plus the sum for each fiscal
quarter ending after the Effective Date of the greater of (i) $25,000 or (ii)
50% of the net profit of the Borrower and its subsidiaries on a consolidated
basis for each such fiscal quarter.
(f) Capital Expenditures. The Borrower shall not make any Capital
Expenditures (or incur any obligation to make any Capital Expenditure) or permit
any of its Subsidiaries to do so, in any fiscal year in an aggregate amount in
excess of the amounts set forth below for such fiscal year (to be calculated on
a noncumulative basis so that amounts not expended in a fiscal year may not be
carried over and expended in any subsequent fiscal year):
<TABLE>
<CAPTION>
Fiscal Year Ending Amount
------------------ ------
<S> <C>
September 30, 1998 $ 9,000,000
September 30, 1999 $11,000,000
October 1, 1999 through
the Maturity $ 5,500,000
</TABLE>
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ARTICLE 9. DEFAULTS
9.1. Events of Default
The following shall each constitute an "Event of Default" hereunder:
(a) the failure of the Borrower to make any payment of
principal on any Revolving Loan when due and payable; or
(b) the failure of the Borrower to make any payment of
interest, Fees, expenses or other amounts payable under any Loan Document
or otherwise to the Administrative Agent with respect to the loan
facilities established hereunder within three Business Days of the date
when due and payable; or
(c) the failure of the Borrower to observe or perform any
covenant or agreement contained in Section 7.3(i), 7.9, 7.10 or Article 8;
or
(d) the failure of any Loan Party to observe or perform any
other term, covenant, or agreement contained in any Loan Document to which
it is a party and such failure shall have continued unremedied for a
period of 30 days after such Loan Party shall have obtained knowledge
thereof; or
(e) any representation or warranty made by any Loan Party (or
by an officer thereof on its behalf) in any Loan Document or in any
certificate, report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant thereto, shall prove to
have been incorrect or misleading (whether because of misstatement or
omission) in any material respect when made; or
(f) (i) the occurrence of an event of default under, and as
such term is defined in, the documents evidencing Refinancing Debt, or
(ii) the failure of any Loan Party to make any payment (whether of
principal or interest and regardless of amount) in respect of Material
Liabilities when due or within any grace period for the payment thereof;
or
(g) any event or condition occurs that results in any Material
Liability becoming or being declared to be due and payable prior to the
scheduled maturity thereof, or that enables or permits (with or without
the giving of notice, the lapse of time or both) the holder or holders of
any Material Liability or any trustee or agent on its or their behalf to
cause any Material Liability to be due and payable, or to require the
prepayment, repurchase, redemption or defeasance thereof, in each case
prior to the scheduled maturity thereof (in each case after giving effect
to any applicable grace period); or
(h) any Loan Party shall (i) suspend or discontinue its
business (except to the extent permitted by Section 7.3), (ii) make an
assignment for the benefit of creditors, (iii) generally not be paying its
debts as such debts become due, (iv) admit in writing its inability to pay
its debts as they become due, (v) file a voluntary petition in bankruptcy,
(vi) become insolvent (however such insolvency shall be evidenced), (vii)
file any petition or answer seeking for itself any reorganization,
arrangement, composition, readjustment of debt, liquidation or dissolution
or similar relief under any present or future statute, law or regulation
of any
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<PAGE>
jurisdiction, (viii) petition or apply to any tribunal for any receiver,
custodian or any trustee for any substantial part of its property, (ix) be
the subject of any such proceeding filed against it which remains
undismissed for a period of 45 days, (x) file any answer admitting or not
contesting the material allegations of any such petition filed against it
or any order, judgment or decree approving such petition in any such
proceeding, (xi) seek, approve, consent to, or acquiesce in any such
proceeding, or in the appointment of any trustee, receiver, sequestrator,
custodian, liquidator, or fiscal agent for it, or any substantial part of
its property, or an order is entered appointing any such trustee,
receiver, custodian, liquidator or fiscal agent and such order remains in
effect for 45 days, or (xii) take any formal action for the purpose of
effecting any of the foregoing or looking to the liquidation or
dissolution of the Borrower, such Subsidiary or such other Loan Party; or
(i) an (i) order or decree is entered by a court having
jurisdiction (A) adjudging any Loan Party bankrupt or insolvent, (B)
approving as properly filed a petition seeking reorganization,
liquidation, arrangement, adjustment or composition of or in respect of
any Loan Party under the bankruptcy or insolvency laws of any
jurisdiction, (C) appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of any Loan Party or
of any substantial part of the property of any thereof, or (D) ordering
the winding up or liquidation of the affairs of any Loan Party, and any
such decree or order continues unstayed and in effect for a period of 45
days or (ii) order for relief is entered under the bankruptcy or
insolvency laws of any jurisdiction or any other; or
(j) judgments or decrees against the Borrower or any
Subsidiary aggregating in excess of $1,000,000 (unless adequately insured
by a solvent unaffiliated insurance company which has acknowledged
coverage) shall remain unpaid, unstayed on appeal, undischarged, unbonded
or undismissed for a period of 30 days; or
(k) any Loan Document shall cease, for any reason, to be in
full force and effect (other than in accordance with its terms), or any
Loan Party shall so assert in writing or shall disavow any of its
obligations thereunder; or
(l) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not to
be, a valid and perfected Lien on, and security interest it, any
Collateral, with the priority required by the applicable Security
Document, except as a result of a Disposition thereof to the extent
permitted under the Loan Documents; or
(m) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of the
Borrower and the Subsidiaries which would, individually or in the
aggregate, have a Material Adverse effect; or
(n) The occurrence of a Change of Control.
9.2. Contract Remedies
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof,
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(i) in the case of an Event of Default specified in
Section 9.1(h) or 9.1(i), without declaration or notice to the Borrower,
all of the Commitments shall immediately and automatically terminate, and
the Revolving Loans, all accrued and unpaid interest thereon and all other
amounts owing under the Loan Documents shall immediately become due and
payable, and
(ii) in all other cases, upon the direction of the
Required Lenders, the Administrative Agent shall, by notice to the
Borrower, declare all of the Commitments to be terminated forthwith,
whereupon such Commitments shall immediately terminate, and/or declare the
Revolving Loans, all accrued and unpaid interest thereon and all other
amounts owing under the Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable.
In the event that the Revolving Loans, all accrued and unpaid interest thereon
and all other amounts owing under the Loan Documents shall have been declared
due and payable pursuant to the provisions of this Section 9.2, the
Administrative Agent (i) upon the direction of the Required Lenders, shall
proceed to enforce the rights of the holders of the Notes by suit in equity,
action at law and/or other appropriate proceedings, whether for payment or the
specific performance of any covenant or agreement contained in the Loan
Documents and (ii) may exercise any and all rights and remedies provided to the
Administrative Agent by the Loan Documents. Except as otherwise expressly
provided in the Loan Documents, the Borrower expressly waives, presentment,
demand, protest and all other notices of any kind in connection with the Loan
Documents are hereby expressly waived. The Borrower hereby further expressly
waives and covenants not to assert any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force which might
delay, prevent or otherwise impede the performance or enforcement of any Loan
Document.
(b) In the event that all of the Commitments shall have been
terminated or the Revolving Loans, all accrued and unpaid interest thereon and
all other amounts owing under the Loan Documents shall have been declared due
and payable pursuant to the provisions of this Section 9.2, any funds received
by any Credit Party from or on behalf of the Borrower (except funds received by
any Lender as a result of a purchase from any other Lender pursuant to Section
2.5(c)) shall be remitted to, and applied by, the Administrative Agent in the
following manner and order:
(i) first, to the payment of interest on, and then the
principal portion of, any Revolving Loans which the Administrative Agent
may have advanced on behalf of any Lender for which the Administrative
Agent has not then been reimbursed by such Lender or any Loan Party;
(ii) second, to reimburse the Administrative Agent and the
Lenders, in that order, for any expenses due from the Borrower pursuant to
the provisions of Section 11.4,
(iii) third, to the payment of the Fees, pro rata according to
the Fees due and owing to the Credit Parties,
(iv) fourth, to the payment of any other fees, expenses or
other amounts (other than the principal of and interest on the Revolving
Loans) payable by the Loan Parties to the Credit Parties under the Loan
Documents,
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(v) fifth, to the payment, pro rata according to the
Outstanding Percentage of each Lender, of interest due on the Revolving
Loans,
(vi) sixth, to the payment to the Lenders of, and on a pro
rata basis in accordance with, the unpaid principal amount of the Loans
and each amount then due and payable under each Secured Hedging Agreement,
and
(vii) seventh, any remaining funds shall be paid to whomsoever
shall be entitled thereto or as a court of competent jurisdiction shall
direct.
ARTICLE 10. THE ADMINISTRATIVE AGENT
10.1. Appointment
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
10.2. Individual Capacity
The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower, any Subsidiary, or any
Affiliate of the Borrower as if it were not the Administrative Agent hereunder.
10.3. Exculpatory Provisions
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (1) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (2) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.1), and (3) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any Subsidiary that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.1) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or another Credit Party and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
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connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreements, instrument or document,
or (v) the satisfaction of any condition set forth in Articles 5 or 6 or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
10.4. Reliance by Administrative Agent
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel to the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
10.5. Reliance by Administrative Agent
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent, provided that no such delegation shall
serve as a release of the Administrative Agent or waiver by the Borrower of any
rights hereunder. The Administrative Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of this Article 10 shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as
well as activities as Administrative Agent.
10.6. Resignation; Successor Administrative Agent
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this Section 10.6, the Administrative Agent
may resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 11.1 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective
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Related Parties in respect of any actions taken or permitted to be taken by any
of them while it was acting as Administrative Agent.
10.7. Non-Reliance on Other Credit Parties
Each Credit Party acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Credit Party and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Credit Party
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Credit Party and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE 11. OTHER PROVISIONS
11.1. Amendments and Waivers
(a) No failure to exercise and no delay in exercising, on the part
of any Credit Party, any right, remedy, power or privilege under any Loan
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under any Loan Document
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
under the Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law. No waiver of any provision of
any Loan Document or consent to any departure by any Loan Party therefrom shall
in any event be effective unless the same shall be permitted by this Section
11.1, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Revolving Loan shall not be construed as a waiver
of any Default, regardless of whether any Credit Party may have had notice or
knowledge of such Default at the time.
(b) Notwithstanding anything to the contrary contained in any Loan
Document, with the written consent of the Required Lenders, the Administrative
Agent and the appropriate parties to the Loan Documents (other than the other
Credit Parties) may, from time to time, enter into written amendments,
supplements or modifications thereof and, with the consent of the Required
Lenders, the Administrative Agent on behalf of the other Credit Parties, may
execute and deliver to any such parties a written instrument waiving or
consenting to the departure from, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
the Loan Documents or any Default and its consequences; provided, however, that
no such amendment, supplement, modification, waiver or consent shall:
(i) increase the Revolving Commitment of any Lender, without
such Lender's consent;
(ii) unless agreed to by each Credit Party affected thereby,
(A) reduce the principal amount of any Revolving Loan, or reduce the rate
of interest thereon, or reduce any fees or other obligations payable under
the Loan Documents or (B) extend any date (including the Maturity Date)
fixed for the payment of any
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principal of or interest on any Revolving Loan, any fees, or any other
obligation payable under the Loan Documents;
(iii) unless agreed to by all of the Lenders, (A) increase the
Aggregate Revolving Commitment, (B) change the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage
of Lenders required to waive, amend or modify any rights hereunder or make
any determination or grant any consent hereunder, (C) change Section 2.5
in a manner that would alter the pro rata sharing of payments required
thereby, (D) consent to any assignment or delegation by any Loan Party of
any of its rights or obligations under any Loan Document, (E) release any
Subsidiary Guarantor from its obligations under the Subsidiary Guarantee
(except as expressly provided therein or as a result of the termination of
the existence of such Subsidiary Guarantor in a transaction permitted by
Sections 8.3, 8.4 or 8.6), or (F) release all or substantially all of the
Collateral from the Liens of the Security Documents, release any of the
Collateral from the Liens of the Security Documents, except as may be
expressly permitted thereunder or in connection with a transaction
permitted by Sections 8.3, 8.4 or 8.5); and
(iv) unless agreed to by the Administrative Agent, amend,
modify or otherwise affect the rights or duties of the Administrative
Agent under the Loan Documents.
Any such amendment, supplement, modification, waiver or consent
shall apply equally to each Credit Party and shall be binding upon each Credit
Party and each Loan Party to the applicable Loan Document, and upon all future
holders of the Notes. In the case of any waiver, the Credit Parties and each
Loan Party to the applicable Loan Document shall be restored to their former
position and rights hereunder and under the outstanding Notes and other Loan
Documents to the extent provided for in such waiver, and any Default waived
shall not extend to any subsequent or other Default, or impair any right
consequent thereon.
11.2. Notices
All notices, requests and demands to or upon the respective parties
to the Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, one Business Day after having been sent by overnight courier
service, or when deposited in the mail, first-class postage prepaid, or, in the
case of notice by facsimile, when sent, to the last address (including telephone
and facsimile numbers) for such party specified by such party in a written
notice delivered to the Administrative Agent and the Borrower or, if no such
written notice was so delivered, as follows:
(a) in the case of the Borrower, to Robotic Vision Systems, Inc.,
435 Rabro Drive East, Hauppauge, New York 11788, Attention: Robert Walker,
Executive Vice President; Telephone: (516) 273-9700; Facsimile (516)
273-6055, with a copy to Cooperman, Levitt, Winikoff, Lester & Newman,
P.C., 800 Third Avenue, New York, New York 10022, Attention: Ira I.
Roxland, Esq.; Telephone: (212) 688-7000, Facsimile (212) 755-2839;
(b) in the case of the Administrative Agent, to The Bank of
New York, Agency Function Administration, One Wall Street, 18th Floor, New
York,
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NY 10286; Attention: Pina Impeduglia, Telephone: (212) 635-4696, Facsimile
(212) 635-6365 or 6366 or 6367; with a copy to: The Bank of New York, 604
Broad Hollow Road, Melville, NY 11747, Attention: Mary S. McGovern, Vice
President; Telephone: (516) 755-1749, Facsimile: (516) 752-1507,
(c) in the case of a Lender, at its address set forth on its
signature page hereto or, in the Assignment or Acceptance Agreement or
other instrument pursuant to which it became a Lender;
provided, however, that any notice, request or demand by the Borrower pursuant
to Sections 2.2, 2.3, 2.4 or 3.3 shall not be effective until received. Any
party to a Loan Document may rely on signatures of the parties thereto which are
transmitted by facsimile or other electronic means as fully as if originally
signed.
11.3. Survival
All covenants, agreements, representations and warranties made by
the Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Revolving Loans, regardless of
any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Revolving Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
and so long as the Commitments have not expired or terminated. The provisions of
Sections 3.5 through and including 3.7, Article 10, Section 11.1(a) and Section
11.4 shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Revolving Loans or the termination of the Commitments, this Agreement or any
provision hereof.
11.4. Expenses; Indemnity
(a) The Borrower agrees, on demand therefor and whether any
Revolving Loan is made (i) to pay or reimburse the Administrative Agent and its
Affiliates for all reasonable expenses incurred thereby, including the
reasonable fees, charges and disbursements of counsel, incurred in connection
with the development, preparation, execution, syndication and administration of,
the Loan Documents and any amendment, supplement or modification thereto
(whether or not executed or effective), any documents prepared in connection
therewith and the consummation of the transactions contemplated thereby and (ii)
to pay or reimburse each Credit Party for all of its costs and expenses,
including reasonable fees and disbursements of counsel, incurred in connection
with (A) any Default and any enforcement or collection proceedings resulting
therefrom or in connection with the negotiation of any restructuring or
"work-out" (whether consummated or not) of the obligations of any Loan Party
under any of the Loan Documents and (B) the enforcement of this Section 11.4.
(b) The Borrower shall, on demand therefor, indemnify each Credit
Party and each of their respective Related Parties (each, an "Indemnified
Person") against, and hold each Indemnified Person harmless from, any and all
losses, claims,
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damages, penalties, liabilities and related expenses, including the fees,
charges and disbursements of any counsel, incurred by or asserted against any
Indemnified Person arising out of, in connection with, or as a result of (i) any
breach by the Borrower of the terms of any Loan Document, the use of proceeds of
any Revolving Loan or any action or failure to act on the part of the Borrower,
(ii) the consummation of the Transactions or any other transactions contemplated
hereby, (iii) any actual or alleged presence or release of Hazardous Substance
on or from any property owned or operated by the Borrower or any Subsidiary, or
any liability in respect of any Environmental Law related in any way to the
Borrower or any Subsidiary, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnified
Person is a party thereto (collectively, the "Indemnified Liabilities"),
provided that such indemnity shall not, as to any Indemnified Person, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final
and non-appealable judgment to have resulted from the gross negligence or wilful
misconduct of such Indemnified Person.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or any of its Affiliates under
subsections (a) or (b) of this Section 11.4, each Lender severally agrees, on
demand therefor, to pay to the Administrative Agent such Lender's Commitment
Percentage (or, if the Commitments have then terminated, the Outstanding
Percentage) of such amount (determined as of the time that the applicable
unreimbursed expense or Indemnified Liability is sought).
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnified Person for any
special, indirect, consequential or punitive damages (whether accrued and
whether known or suspected to exist in its favor) arising out of, in connection
with, or as a result of, the Loan Documents, the Transactions or any Revolving
Loan or the use of the proceeds thereof.
11.5. Successors and Assigns
(a) The Loan Documents shall be binding upon and inure to the
benefit of each of the parties thereto, and their respective successors and
assigns, except that no Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Credit
Party (and any such attempted assignment or transfer without such consent shall
be null and void).
(b) Each Lender may assign all or a portion of its rights and
obligations under the Loan Documents to (i) any Subsidiary or Affiliate of such
Lender, (ii) any other Lender, or (iii) with the consent of the Borrower and the
Administrative Agent (which consents shall not be unreasonably withheld or
delayed and, in the case of the Borrower's consent, shall not be required during
the continuance of an Event of Default), to any other Eligible Institution,
provided that:
(A) each such assignment shall be of a constant, and not a
varying, percentage of all of the assignor Lender's rights and obligations
under the Loan Documents;
(B) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of
the assigning Lender's Revolving Commitment, the amount of the Revolving
Commitment of the
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assigning Lender subject to each such assignment (determined as of the
date the Assignment and Acceptance Agreement with respect to such
assignment is delivered to the Administrative Agent) shall not be less
than $2,500,000; and
(C) the assignor and such assignee shall deliver to the
Administrative Agent three copies of an Assignment and Acceptance
Agreement executed by each of them, along with an assignment fee in the
sum of $3,500 for the account of the Administrative Agent and, if the
assignee is not then a Lender and is a Foreign Credit Party, the documents
required by Section 3.7(d).
Upon receipt of such number of executed copies of each such Assignment and
Acceptance Agreement together with the assignment fee therefor and the consents
required to such assignment, if required, the Administrative Agent shall record
the same and execute not less than two copies of such Assignment and Acceptance
Agreement in the appropriate place, deliver one such copy to the assignor and
one such copy to the assignee, and deliver one photocopy thereof, as executed,
to the Borrower. From and after the Assignment Effective Date specified in, and
as defined in, such Assignment and Acceptance Agreement, the assignee thereunder
shall, unless already a Lender, become a party hereto and shall, for all
purposes of the Loan Documents, be deemed a "Lender" and, to the extent provided
in such Assignment and Acceptance Agreement, the assignor Lender thereunder
shall be released from its obligations under this Agreement and the other Loan
Documents. The Borrower agrees that, if requested, in connection with each such
assignment, it shall at its own cost and expense execute and deliver to the
Administrative Agent or such assignee a Note, each payable to the order of such
assignee and dated the Effective Date. The Administrative Agent shall be
entitled to rely upon the representations and warranties made by the assignee
under each Assignment and Acceptance Agreement.
(c) Each Lender may grant participations in all or any part of its
rights and obligations under the Loan Documents to one or more Eligible
Institutions, provided that (i) such Lender's obligations under this Agreement
and the other Loan Documents shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties to this Agreement and the other
Loan Documents for the performance of such obligations, (iii) the Borrower and
the Credit Parties shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents, (iv) the granting of such participation does not require that any
additional loss, cost or expense be borne by the Borrower at any time, and (v)
the voting rights of any holder of any participation shall be limited to
decisions that in accordance with Section 11.1 require the consent of all of the
Lenders.
(d) Subject to subsection (e) below, any Lender may at any time
assign all or any portion of its rights under any Loan Document to any Federal
Reserve Bank.
(e) Except to the extent of any assignment pursuant to subsection
(b) above, no Lender shall be relieved of any of its obligations under the Loan
Documents as a result of any assignment of or granting of participations in, all
or any part of its rights and obligations under the Loan Documents.
11.6. Counterparts; Integration
Each Loan Document (other than the Notes) may be executed by one or
more of the parties thereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
document. It shall
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not be necessary in making proof of any Loan Document to produce or account for
more than one counterpart signed by the party to be charged. Delivery of an
executed counterpart of a signature page of any Loan Document by facsimile shall
be effective as delivery of a manually executed counterpart of such Loan
Document. The Loan Documents and any separate letter agreements between the
Borrower and a Credit Party with respect to fees embody the entire agreement and
understanding among the Loan Parties and the Credit Parties with respect to the
subject matter thereof and supersede all prior agreements and understandings
among the Loan Parties and the Credit Parties with respect to the subject matter
thereof.
11.7. Severability
Every provision of the Loan Documents is intended to be severable,
and if any term or provision thereof shall be invalid, illegal or unenforceable
for any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
11.8. Judgment Currency
(a) Each Loan Party's obligations under the Loan Documents to make
payments in the applicable Currency (the "Obligation Currency") shall not be
discharged or satisfied by any tender or recovery pursuant to any judgment
expressed in or converted into any currency other than the Obligation Currency,
except to the extent that, on the Business Day immediately following the date of
such tender or recovery, the Administrative Agent or the applicable Lender, as
the case may be, may, in accordance with normal banking procedures, purchase the
Obligation Currency with such other currency. If for the purpose of obtaining or
enforcing judgment against any Loan Party in any court or in any jurisdiction,
it becomes necessary to convert into any currency other than the Obligation
Currency (such other currency being hereinafter referred to as the "Judgment
Currency") an amount due in the Obligation Currency, the conversion shall be
made at the rate of exchange at which, in accordance with normal banking
procedures in the relevant jurisdiction, the Obligation Currency could be
purchased with the Judgment Currency as of the day immediately preceding the day
on which the judgment is given (such Business Day being hereinafter referred to
as the "Judgment Currency Conversion Date").
(b) If the amount of Obligation Currency purchased pursuant to the
last sentence of subsection (a) above is less than the sum originally due in the
Obligation Currency, the applicable Loan Party covenants and agrees to indemnify
the applicable recipient against such loss, and if the Obligation Currency so
purchased exceeds the sum originally due to such recipient, such recipient
agrees to remit to the applicable Loan Party such excess.
11.9. International Banking Facilities
(a) The Borrower and the other Loan Parties acknowledge that some or
all of the Lenders may, in connection with the Loan Documents, utilize an
International banking facility (as defined in Regulation D).
(b) Each Loan Party which is an entity located outside the United
States (i) understands that it is the policy of the Board of Governors of the
Federal Reserve
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System that deposits received by International banking facilities may be used
only to support the non-U.S. operations of a depositor (or its foreign
affiliates) located outside the United States and that extensions of credit by
International banking facilities may be used only to finance the non-U.S.
operations of a customer (or its foreign affiliates) located outside the United
States, and (ii) acknowledges that the proceeds of its borrowings hereunder from
an international banking facility will be used solely to finance its operations
outside the United States, or that of its foreign affiliates.
11.10. Governing Law
The Loan Documents and the rights and obligations of the parties
thereunder shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York.
11.11. Jurisdiction; Service of Process
Each party to a Loan Document hereby irrevocably submits to the
nonexclusive jurisdiction of any New York State or Federal court sitting in the
City of New York over any suit, action or proceeding arising out of or relating
to the Loan Documents. Each party to a Loan Document hereby irrevocably waives,
to the fullest extent permitted or not prohibited by law, any objection which it
may now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
Each Loan Party hereby agrees that a final judgment in any such suit, action or
proceeding brought in such a court, after all appropriate appeals, shall be
conclusive and binding upon it and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that a Credit Party may otherwise have to bring
any action or proceeding relating to Loan Documents against the Borrower or its
properties in the courts of any jurisdiction. Each party to a Loan Document
hereby irrevocably consents to service of process in the manner provided for
notices in Section 11.2. Nothing in this Agreement will affect the right of any
party to a Loan Document to serve process in any other manner permitted by law.
11.12. WAIVER OF TRIAL BY JURY
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 11.12.
- 67 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
ROBOTIC VISION SYSTEMS, INC.
By: /s/ Robert H. Walker
--------------------------
Name: Robert H. Walker
Title: Executive Vice President
<PAGE>
ROBOTIC VISION SYSTEMS, INC. CREDIT AGREEMENT
THE BANK OF NEW YORK,
Individually and as Administrative Agent
By: /s/ Steven E. Ratner
-------------------------
Name: Steven E. Ratner
Title: Vice President
Revolving Commitment: $17,500,000
Address for Notices
The Bank of New York
Agency Function Administration
One Wall Street
18th Floor
New York, NY 10286
Attention: Pina Impeduglia
Telephone: (212) 635-4696
Facsimile (212) 635-6365 or 6366 or 6367
with a copy to:
The Bank of New York
604 Broad Hollow Road
Melville, NY 11747
Attention: Mary S. McGovern
Vice President
Telephone: (516) 755-1749
Facsimile (516) 752-1507
- 2 -
<PAGE>
ROBOTIC VISION SYSTEMS, INC. CREDIT AGREEMENT
CORESTATES BANK, N.A.
By: /s/ R. Thomas Esser
--------------------------
Name: R. Thomas Esser
------------------------
Title: Vice President
-----------------------
Revolving Commitment: $10,000,000
Address for Notices
CoreStates Bank, N.A.
1339 Chestnut Street
F-C-1-8-4-2
Philadelphia, PA 19107-3578
Attention: Tom Esser,
Vice President
Telephone: (215) 973-8033
Facsimile: (215) 973-5831
- 4 -
<PAGE>
ROBOTIC VISION SYSTEMS, INC. CREDIT AGREEMENT
FLEET BANK, N.A.
By: /s/ Magda Hayden
--------------------------
Name: Magda Hayden
------------------------
Title: Vice President
-----------------------
Revolving Commitment: $10,000,000
Address for Notices
Fleet Bank, N.A.
300 Broad Hollow Road
4th Floor
Melville, New York 11747
Attention: Magda Hayden, Vice President
Telephone: (516) 547-7726
Facsimile: (516) 547-7815
<PAGE>
EXHIBIT 1.4
LICENSE AGREEMENT
This LICENSE AGREEMENT is made this ____ day of ________, 1998, by and
between ROSEMOUNT AEROSPACE INC., a Delaware corporation ("Buyer") and ROBOTIC
VISION SYSTEMS, INC., a Delaware corporation ("Seller").
RECITALS
A. Reference is made to the Asset Purchase Agreement dated as of
________________ (the "Purchase Agreement") between Buyer and Seller, in which
Seller agrees to sell and transfer to Buyer, and Buyer agrees to purchase and
accept from Seller on the Closing Date, the Intellectual Property (as defined in
the Purchase Agreement).
B. Seller desires to use the Intellectual Property in the Licensed Field of Use
(as hereinafter defined) after the Closing Date.
C. Buyer is willing to grant to Seller a license to use the Intellectual
Property in the Licensed Field of Use after the Closing Date, subject to the
terms and conditions of this License Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
representations herein contained, Buyer and Seller agree as follows:
ARTICLE I
DEFINITIONS
1.1 The following terms, as defined herein, shall have the meanings set forth
below:
a) "Licensed Field of Use" means the manufacture, use, sale and service of
products, components and systems that utilize the Intellectual Property. The
Licensed Field of Use shall be limited to products, components and systems for:
(u) object identification, measurement, inspection and gauging;
(v) package identification;
(w) material handling;
(x) robotics control;
(y) semiconductor handling and assembly; and
(z) other machine vision systems unrelated to detection of ice or frozen
contaminants.
b) Capitalized terms used but not defined herein shall have the meanings set
forth in the Purchase Agreement.
<PAGE>
ARTICLE II
LICENSE GRANT
2.1 Buyer grants to Seller a non-exclusive, worldwide, royalty-free license to
use the Intellectual Property in the Licensed Field of Use after the Closing
Date, and to perform the Transition Services and Supply Agreement (the
"Transition Agreement").
2.2 The licenses granted in Article 2.1 are personal and nontransferable, and
may not be assigned or sublicensed by Seller.
2.3 During the three (3) year period following the Closing Date, Buyer shall not
grant any licenses to third parties to use the Intellectual Property in the
Licensed Field of Use, provided that during and subsequent to said period, Buyer
reserves the right to use the Intellectual Property in the Licensed Field of Use
for its own use and benefit.
2.4 No right or license of any kind is granted to Seller to use the Intellectual
Property outside of the Licensed Field of Use, and Seller agrees not to use the
Intellectual Property in connection with any business activity other than the
Licensed Field of Use and the Transition Agreement; provided however, that
Seller shall not be in breach of this License Agreement if it sells a product
specifically targeted for use in the Licensed Field of Use and the purchaser of
such product uses the same in an application outside the Licensed Field of Use.
ARTICLE III
FILINGS, MAINTENANCE AND ENFORCEMENT
3.1 Buyer shall have the sole right to make any and all appropriate applications
or filings in order to register, protect, or otherwise maintain the Intellectual
Property, and shall be the sole owner thereof; Seller agrees to provide
reasonable assistance to Buyer at the written request of Buyer, and at Buyer's
sole expense in support of the same. Buyer shall be under no obligation to
Seller or any other party to take any action to register, protect or maintain
the Intellectual Property.
3.2 Buyer shall have the sole right, at Buyer's sole expense and discretion, to
bring any legal action against persons infringing, using without Buyer's
authorization, or otherwise violating the Intellectual Property. Seller shall
promptly advise Buyer in writing of any actual or suspected infringement, use
without authorization, or violation of the Intellectual Property (including but
not limited to such activity in the Licensed Field of Use) and shall cooperate
with Buyer in any and all actions relating thereto.
3.3 The provisions of this Article III have no effect on Seller's obligations to
take actions with respect to its employees as set forth in Article 3.9 of the
Purchase Agreement, or to continue to prosecute its claims and defend against
cross claims and counterclaims as set forth in Article 3.13 and Exhibit 3.13 of
the Purchase Agreement.
2
<PAGE>
ARTICLE IV
CONFIDENTIAL INFORMATION
4.1 With respect to the Intellectual Property licensed to Seller under this
Agreement, Seller agrees to take all reasonable steps, in accordance with
Seller's customary procedures for protecting its own confidential and
proprietary information, to safeguard such Intellectual Property from
unauthorized use and disclosure. Further, Seller shall hold, and shall cause its
officers, directors, employees and agents to hold, in confidence, the
Intellectual Property, except to the extent such Intellectual Property is shown
by Seller: (a) to be in the public domain through no fault of the Seller; or (b)
to have been lawfully acquired from a third party on an unrestricted basis; or
(c) to be subject to disclosure in response to judicial proceedings, in which
case Seller shall provide Buyer advance written notice thereof and assist Buyer
in opposing such disclosure; provided that the Seller may disclose the
Intellectual Property to a third party so long as such third party agrees in
writing to hold such Intellectual Property in confidence and not use such
Intellectual Property for any purpose other than the Licensed Field of Use;
provided further that if Seller or such third party breaches the confidentiality
obligations of this Article IV, then Seller shall so inform the Buyer, and
Seller shall take all reasonable steps at the request of the Buyer to remedy
such breach.
4.2 The provisions of Article IV shall survive any termination of this
Agreement.
ARTICLE V
WARRANTIES AND LIMITATION OF LIABILITY
5.1 ALL WARRANTIES, EXPRESSED OR IMPLIED, ARE HEREBY DISCLAIMED BY BUYER,
INCLUDING ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.2 BUYER SHALL NOT BE LIABLE TO SELLER FOR ANY LOSS, EXPENSE, OR DAMAGE ARISING
OUT OF OR RESULTING FROM SELLER'S USE OF THE INTELLECTUAL PROPERTY. IN NO EVENT
SHALL BUYER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL
LOSS OR DAMAGES.
5.3 Buyer makes no warranties as to the validity or enforceability of the
Intellectual Property or that Seller's use of the Intellectual Property will be
free from infringement of any intellectual property rights of a third party.
Buyer shall not, under any circumstances, indemnify or otherwise be liable to
Seller for any damages or claims arising out of or in connection with the
Intellectual Property.
3
<PAGE>
ARTICLE VI
TERM AND TERMINATION
6.1 Except as set forth in Article 6.2, this License Agreement shall continue in
effect until each type of intellectual property licensed hereunder expires,
irreversibly lapses, or is otherwise available for use by third parties on an
unrestricted basis.
6.2 Any unauthorized use or disclosure of the Intellectual Property by Seller
(including but not limited to any use of the Intellectual Property in fields
outside of the Licensed Field of Use (except as set forth in Article 2.4) and
any failure to abide by the Confidentiality provisions of Article IV) shall be a
material breach of this Agreement. Buyer shall give Seller written notice of any
such material breach; if such breach is not cured within fifteen (15) business
days of receipt of such notice, then Buyer may immediately terminate this
License Agreement. On such termination, Seller shall cease all uses of the
Intellectual Property.
6.3 Buyer shall be entitled to immediate injunctive relief if Seller commits any
material breach of this Agreement.
6.4 Termination of this Agreement shall be without prejudice to Buyer's right to
recover damages resulting from such breach.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. All notices required or permitted hereunder shall be in writing and
shall be deemed to be properly given when received either by personal delivery,
next day delivery by a national courier or by delivery certified U.S. mail,
return receipt requested, properly addressed to the party entitled to receive
such notice at the address stated below:
To Buyer: Rosemount Aerospace Inc.
14300 Judicial Road
Burnsville, Minnesota 55306-48908
Attention: Vice President -- Commercial Transport
With a Copy to: BFGoodrich Aerospace
250 N. Cleveland-Massillon Road
Akron, OH 44334
Attention: Law Department
To Seller: Robotic Vision Systems, Inc.
5 Shawmut Road
Canton, Massachusetts 02021
Attention: Chief Financial Officer
4
<PAGE>
With a Copy to: Cooperman Levitt Winikoff Lester & Newman
800 Third Avenue
New York, New York 10022
Attention: Ira Roxland, Esq.
7.2 Entire Agreement. This Agreement shall constitute the entire agreement
between the parties with respect to the subject matter hereof and shall
supersede all previous negotiations, commitments and writings.
7.3 Waiver, Discharge, Etc. This Agreement may not be released, discharged or
modified except by an instrument in writing signed by a duly authorized officer
on behalf of each of the parties hereto. The failure of Buyer to enforce any
provision of this Agreement shall not be a waiver of such provision or
subsequent breach of the same or any other obligation hereunder.
7.4 Governing Law. This Agreement shall be construed and the rights of the
parties hereunder shall be governed by the laws of the State of Minnesota and
without regard to conflicts of laws. Any unresolved disputes shall be submitted
to the Federal Courts of Minnesota.
7.5 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one Agreement.
7.6 Severability. If any provision of this Agreement is held to be invalid or
unenforceable, for any reason, it shall not invalidate or render unenforceable
or otherwise affect any other provision hereof, and such invalid or
unenforceable provision shall be construed by limiting it so as to be valid and
enforceable to the maximum extent compatible with, and possible under,
applicable law.
7.7 Successors and Assigns. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their permitted successors and assigns;
provided, however, that the Buyer may assign its rights without the consent of
any of the parties hereto to any affiliate of the Buyer, but no such assignment
will relieve Buyer of its obligations under this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed as of the date first above written.
<TABLE>
<CAPTION>
ROSEMOUNT AEROSPACE INC. ROBOTIC VISION SYSTEMS, INC.
<S> <C>
By: ___________________________ By: _____________________________
Name: _________________________ Name: ___________________________
Title: ________________________ Title: __________________________
</TABLE>
5
<PAGE>
EXHIBIT 3.9
ROBOTIC VISION SYSTEMS, INC.
CONFIDENTIALITY, INVENTIONS AND NON-COMPETITION AGREEMENT
In consideration of and as a condition of (i) my employment by Robotic
Vision Systems, Inc. ("RVSI") or any of its subsidiary corporations
(collectively with RVSI, the "RVSI Companies") and (ii) my being granted
contemporaneously therewith an option to Purchase shares of RVSI Common Stock, I
agree and covenant with RVSI as follows:
1. Confidentiality of Information. During the term of my employment by
RVSI and/or any of the RVSI Companies and thereafter, I will not disclose any
secret or confidential information that I may learn by reason of my employment
by any of the RVSI Companies. The term "confidential information" includes,
without limitation, information not previously disclosed to the public by senior
management of RVSI with respect to the products, facilities, applications and
methods, trade secrets and other intellectual property, processes, systems,
procedures, manuals, confidential reports, customers, suppliers, product price
lists, customer lists, supplier lists, technical information, financial
information business plans, prospects or opportunities of RVSI and/or any of the
RVSI Companies, whether or not such information has explicitly been designated
as secret, confidential or restricted by RVSI and/or any of the other RVSI
Companies.
2. Exclusive Property. All confidential information is and shall remain
the exclusive property of RVSI. All business records, papers and documents kept
or made by me relating to the business of any of the RVSI Companies shall be and
remain the property of RVSI.
3. Inventions. Except as set forth on Exhibit A attached hereto, I agree
that any interest in inventions, improvements, developments and processes,
patents, patent applications and copyrights (collectively "Inventions") which
result from or are suggested by any of the work I will perform for any of the
RVSI Companies and which I may develop during the period I am employed by any of
the RVSI Companies shall belong to and be the exclusive property of RVSI. I
agree to execute all such assignments and other documents and take all such
other action as RVSI may reasonably request in order to more fully vest in RVSI
and/or any of the other RVSI Companies all of my right, title and interest in
and to each such Invention, free and clear of all liens and claims. I agree to
timely communicate to my immediate supervisor or such other person as RVSI has
designated any ideas, improvements or discoveries which I believe may or could
constitute an Invention.
CONFIDENTIALITY, INVENTIONS & NON-COMPETITION AGREEMENT
REVISED 12/96 (OPTION & EMPLOYMENT)
<PAGE>
4. Time; Non-Competition. During the term of my employment, I will devote
all of my working time for the benefit of the RVSI Company that I am employed by
and will not, directly or indirectly, own any interest in and for a period of
one year after employment terminates, I will not operate, join or render other
assistance to or be connected with, as an employee, consultant or otherwise any
partnership, corporation or other business organization that competes with RVSI
or any of the other RVSI Companies; provided that the foregoing restrictions
shall not apply to and shall not prevent passive stock investments in publicly
held companies. I further agree that I shall not directly or indirectly assist
any company, organization or individual in the selection or recruitment of
personnel from the RVSI Companies throughout the term of my employment or during
a one year: period subsequent to any termination of my employment for any reason
whatsoever, nor shall I do any of the foregoing on my own behalf.
5. Injunctive Relief. Without intending to limit the remedies available to
RVSI and/or any of the other RVSI Companies, I agree that a breach of any of the
agreements and covenants contained in the above sections of this Agreement may
result in material irreparable injury to RVSI and/or any of the RVSI Companies
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of such a
breach or threat thereof, RVSI shall be entitled to obtain a temporary
restraining order and/or a preliminary injunction restraining me from engaging
in activities prohibited by the above sections of this Agreement or such other
relief as may be required to specifically enforce any of the agreements and
covenants contained in the above sections of this Agreement.
6. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York, without giving effect to its conflicts of law principles.
7. Severability. If any provision of this Agreement, or the application of
such provision to any person or circumstance, is declared by any arbitration
panel or court of competent jurisdiction to be invalid or unenforceable:
(a) Such invalidity or unenforceability shall not affect the
remaining provisions of this Agreement or the application of such provisions to
circumstances other than those to which it is held invalid or unenforceable;
CONFIDENTIALITY, INVENTIONS & NON-COMPETITION AGREEMENT
REVISED 12/96 (OPTION & EMPLOYMENT)
2
<PAGE>
(b) If such invalidity or unenforceability is due to the court's
determination that the provision's scope is excessively broad or restrictive
under applicable law then in effect, the parties hereby jointly request that
such provision be construed by modifying its scope so as to be enforceable to
the fullest extent compatible with applicable law then in effect; and
(c) If any provision is held to be invalid or unenforceable with
respect to a particular circumstance, such provision shall nevertheless remain
in full force and effect in all other circumstances, subject to the other
provisions of this Section 7.
8. Headings. All headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
any provision or provisions of this Agreement.
9. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to ben an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been signed and delivered.
_____________________________
Employee
_____________________________
Printed Name
ROBOTIC VISION SYSTEMS, INC.
By: _________________________
Date: _________________________
CONFIDENTIALITY, INVENTIONS & NON-COMPETITION AGREEMENT
REVISED 12/96 (OPTION & EMPLOYMENT)
3
<PAGE>
EXHIBIT A
EXCLUDED INVENTIONS
None
_____________________________
Printed Name
ROBOTIC VISION SYSTEMS, INC.
By: ________________________
Date: ________________________
CONFIDENTIALITY, INVENTIONS & NON-COMPETITION AGREEMENT
REVISED 12/96 (OPTION & EMPLOYMENT)
<PAGE>
EX-3.10-A
1. DEFINITION OF TERMS: Used within this Purchase Order.
Buyer: Buyer is Robotic Vision Systems inc. (RVSI), a Delaware corporation, (its
officers, employees, servants, successors, assigns, subsidiaries, divisions,
affiliates and any correspondence with which it may be merged or consolidated)
and its duly authorized representative, the Purchasing Department designated
buyer. If this purchase order is issued pursuant to a U.S. Government Contract,
the term Buyer as used in this order shall in addition include the U.S.
Government and Part II TERMS AND CONDITIONS (Applicable to all orders pursuant
to U.S. Government Contracts) will be attached. Occasions may arise where it may
become necessary for the designated buyer to require additional technical,
operational, or administrative consultation from others representing RVSI, in
which case their findings will be reported to the designated buyer, who is the
only representative from [ILLEGIBLE] duly authorized to inform the Seller of
such findings. Notification shall be at the designated buyer's discretion.
Seller: Seller is the individual, company or corporation (its duly authorized
designated sales representatives as specified hereon, or otherwise specified to
RVSI's designated buyer in writing.
Vendor: Vendor (also Vender) and Seller are synonymous
Contract: Contract and Purchase Order are synonymous
2. ACCEPTANCE: This Purchase Order including the terms and conditions on the
face and reverse sides and any attachments or enclosures with the Purchase Order
constitutes [ILLEGIBLE] offer to Seller, Buyer expressly limits acceptance to
the terms of this offer. Seller's acceptance may be made by Buyer's receipt of
Seller's signed acknowledgement of acceptance, Seller's commencement of week or
Seller's commencement of deliveries. This Purchase Order shall constitute the
complete and final agreement between the parties and [ILLEGIBLE] verbal and
written representations, agreements and conditions between the parties shall be
deemed superseded and merged in the accepted order. Notwithstanding any
provision, term or condition contained to Seller's bid, quotation, proposal,
acknowledgement, acceptance or confirmation of sale, Seller hereby agrees that
any work performed or [ILLEGIBLE] or services delivered constitutes Seller's
reaffirmation that the contract of sale is based on the terms set forth herein.
No revision to this purchase order shall be valid unless in writing and signed
by Buyer's designated buyer no conditions stated by Seller in accepting or
acknowledging this purchase order shall be binding upon Buyer; if in conflict
with, inconsistent with, in variance with, or in addition to the terms and
conditions contained herein unless expressly accepted in writing by Buyer's
designated buyer. If any term or condition of this purchase order or its
application shall be illegal, such illegality shall not affect any other term or
condition and they shall remain in full force and effect. In the event of
conflict between printed provisions of this purchase order and any written,
typed or stamped provisions, the latter shall govern. To the extent of
inconsistency between the terms of this purchase order and any applicable
drawings and specifications, the terms of this purchase order shall prevail. The
drawings and specifications are intended to explain each other and anything
contained in one shall be deemed to be contained in both. If any discrepancy,
difference, or conflict exists between the terms of this purchase order and the
drawings and specifications, or between the drawings and specifications, the
same shall immediately be brought to the attention of the Buyer and pending
Buyer's decision, Seller shall not proceed except at own risk.
3. INSPECTION: All the articles and parts thereof including without limitation
raw materials, components and intermediate assemblies, may be inspected, tested
and otherwise evaluated by the Buyer at all times and places including Seller's
plants. Seller shall without additional charge provide an inspection system
acceptable to Buyer and all reasonable facilities and assistance for the safety
and convenience of Buyer. Any inspection test or other evaluation by buyer shall
in no manner destroy, qualify, or affect any of Seller's express or implied
warranties. Buyer may charge Seller for the cost of reinspecting any articles
rejected. All materials or articles ordered will be subject to final inspection
and approval at destination by Buyer, and shall conform to any applicable
specifications stated in this Purchase Order. By accepting this order Seller
agrees to comply with all applicable specifications and warrants that the items
delivered do conform thereto. Items delivered in lots are subject to rejection
upon basis of sample inspection. The foregoing shall not relieve the Seller of
the obligation to make full and adequate test and inspection. Notwithstanding
any source inspection, prior payment, or acceptance, if the Buyer receives items
not of the quality ordered or not in conformance with specifications, it may
cancel this contract under the provisions of Paragraph 5 hereof and return such
items to Seller, or Buyer may return such items without cancelling this contract
at Buyer's option. All transportation charges (including handling charges of
Buyer) for the return to Seller of defective or rejected goods shall be borne by
the Seller. At Buyer's option, Seller shall either refund to Buyer the invoice
price of all items returned hereunder (plus all transportation and handling
expenses thereon paid or incurred by Buyer), or replace such items freight and
other handling charges prepaid. If this Purchase Order covers items made to
Buyer's specifications, Seller authorizes Buyer at Buyer's discretion, to make a
first place inspection of any production or pre-production operation upon
Seller's, or Seller's subcontractors premises. In the event such first place
does not conform to the applicable specifications set forth in this Purchase
Order, or does not conform to the applicable standards of workmanship, Buyer
may, at its sole option (a) cancel this Purchase Order whereupon Buyer may
pursue the remedies set forth in paragraphs below, and any other remedies
available at law or (b) permit remanufacture and resubmission of the first place
for inspection at an equitable reduction in the price of this Purchase Order.
4. ADVANCE MANUFACTURE AND SHIPMENTS: QUANTITY:
A. Seller shall not make material commitments or manufacture in advance of
Seller's normal flow time to meet Buyers delivery schedule set forth in this
order without Buyer's written permission. Buyer reserves the right to return,
shipping charges and handling charges to be borne by Seller, all materials
received at Buyer's plant in advance of schedule shown on this Purchase Order.
B. The quantity of any material, as indicated on the face of this order, shall
not be exceeded without first obtaining written consent from Buyer. If the
Seller exceeds the total quantity of any item on this Purchase Order without
obtaining prior written consent from Buyer and its value is less than one
hundred dollars, it will be kept and deemed a no cost to Buyer consideration
against probable shortages by the Seller. If the Seller exceeds the total
quantity of any item on this Purchase Order without obtaining prior written
consent from the Buyer and its value is more than one hundred dollars, the Buyer
may, at its option return these freight prepaid, and in such case the Seller
will also refund all transportation charges (including handling charges of
Buyer). If the quantity called for by this Purchase Order is to be delivered in
part shipments, at specified times or intervals over the life of this Purchase
Order, the Seller shall not exceed the specified rate of such partial shipments
unless otherwise agreed in writing.
<PAGE>
5. TIME, DEFAULT AND DELAY: Buyers production schedules are based upon Seller's
agreement that delivery of acceptable products or services will be made to the
Buyer by the date specified on the face of this Purchase Order. TIME IS
THEREFORE THE ESSENCE OF THIS CONTRACT. If any anticipated or actual delays
arise, Seller shall notify Buyer immediately of the delay and its cause.
Notwithstanding such notifications, if deliveries of acceptable items or
services are not in conformance with specifications herein or are not made at
the time agreed upon, or if Seller fails to comply strictly with any provision
of or repudiates this Purchase Order, Buyer reserves the right to terminate this
contract for default, purchase elsewhere and hold Seller accountable for any
additional costs Buyer may incur. Non-payment by the Buyer is not an excusable
cause for delay. Buyer shall also have the right to cancel this contract for
default and in addition to other remedies it may have at law, purchase elsewhere
and hold Seller accountable for any additional costs Buyer may incur in the
event that Seller shall default in any other way in the performance of this
contract; Seller shall so fail to make progress in the performance of this
contract as to endanger its timely completion; Seller shall cease to conduct
operations in the normal course of business; of if any proceeding under the
bankruptcy or insolvency laws is brought by or against Seller, or a receiver for
Seller is appointed or applied for, or an assignment for the benefit of
creditors is made by Seller. In the event of such termination for the foregoing
causes (a) upon Buyer's written demand, Seller shall deliver in the manner and
to the extent required by Buyer materials and contract rights such as any
completed items and such partially completed supplies and materials, parts,
tools, dies, jigs, fixtures, plans, drawings, information, and contract rights
(hereinafter contract materials) as Seller has specifically produced or
specifically acquired for the performance of this order and Buyer shall be
obligated to Seller in an amount equal to the reasonable value of such materials
after crediting Buyer with all claims, damages, advance payments or other monies
due from Seller to Buyer; (b) Seller agrees forthwith to repay to Buyer any
sums advanced Seller on account of this Purchase Order. This paragraph is
applicable to this Purchase Order whether or not the Purchase Order requires
Seller to manufacture items to Buyer's drawings, designs or specifications.
6. ASSIGNMENTS AND SUBCONTRACTING: The performance of this contract may not be
assigned, or materially subcontracted in whole or in part by Seller without
Buyer's prior written consent. Claims for monies due or to become due under this
Purchase Order may be assigned by Seller; provided that Seller shall supply
Buyer promptly with two copies of any such assignment, and provided further that
payment to an assignee of any claim under this order shall be subject to set-off
recoupment for any claim under this or other Purchase orders existing prior to,
or after the date of such assignment, which Buyer may have against Seller. Buyer
may cancel this Purchase Order (on a non-cancellation-charge basis) in the event
Seller makes any unauthorized assignment or subcontract, in which event Buyer
shall have all rights and remedies set forth in Paragraph 5.
7. SHIPPING, MARKING, & PACKING INSTRUCTIONS:
A. Shipping instructions: Carriers are specifically set forth in the schedule of
this Purchase Order and remain in effect unless Seller requests and receives
written authorization to deviate therefrom by Buyer. Seller shall consolidate
all shipments to be forwarded on any one day. All shipments will be classified
in accordance with the National Motor Freight (NFMC) or Uniform Freight (UFC)
classifications. All classifications are to be complete so as to enable carriers
to apply proper ratings. All bills of lading are to contain the NFMC or UFC item
number and Buyer's Purchase Order number. Original bills of lading will be
attached to Seller's invoice. Delinquent items, at Buyers option, may require
shipment via premium transportation which portion will be at Seller's expense.
Destination of shipment is specifically set forth in the schedule of this
Purchase Order. Buyer reserves the right to debit Seller for excessive freight
and handling charges for any failure to comply with these instructions.
B. Marking instruction: All packages will be labeled, labels will include the
following: a. shipper's (Seller's) name, b. consignee name, address, ZIP code,
c. Buyer's Purchase Order number, d. case or box number, e. weight. Packing list
with list contents of each package, one copy will be affixed to package number
one and conspicuosly noted. Second copy of packing list will accompany Seller's
invoice. Fragile/Sensitive/Magnetic materials must be clearly marked to indicate
nature of contents and the degree of care required.
C. Packing instructions: Seller will assure proper care is taken in packing
items to ensure against damage during shipment. Shipments are to conform to the
packing requirements of box manufacturers' certification. Shipments received
damaged in transit due to insufficient or inadequate packing can be rejected and
returned at Seller's expense; claims and liability for damage will rest upon the
Seller.
D. Original bill of lading will reference the purchase order number and shall be
retained by Seller for one year, surrendered to Buyer if requested in writing.
8. PRICE, PAYMENT AND INVOICES:
A. Seller represents the prices hereunder are the lowest prices for which these
items are sold, considering differences in quantities, schedule or other such
terms, and Buyer shall be entitled to receive from Seller any price reductions
which Seller shall make to others in its selling prices for comparable items. No
additional charge whatsoever with respect to any materials or services performed
or furnished in connection with this Purchase Order or the materials to be sold
hereunder will be recognized and paid by Buyer unless having obtained prior
written approval from Buyer submitted in accordance with Paragraph 15 hereof.
Buyer shall have the right at any time to request cost breakdowns in form
satisfactory to Buyer [illegible] of this Purchase Order other than Seller's
regular stock.
B. Unless otherwise specifically agreed herein and in the absence of statutory
provision to the contrary, Seller agrees to pay or reimburse Buyer for any tax
or taxes which may be levied in connection with [illegible] action.
C. Seller shall mail invoice duplicate together with properly executed bills of
lading within seventy two hours after shipment to the attention of Buyer's
Accounts Payment Department. Separate invoice will be rendered for each shipment
and each order.
D. Terms of payment, unless otherwise specifically agreed herein shall be two
percent cash discount if paid within ten days; net forty five days. Dating
commences upon receipt of invoices or of material, whichever is later.
<PAGE>
TERMS AND CONDITIONS OF PURCHASE - PART I Revised 2-12-90
E. Payment to Seller shall be made upon shipment, inspection and acceptance of
all items hereunder, pursuant to property prepared invoices to be accompanied
with certifications of conformance to the requirements hereunder provided;
however partial payments may be made, if specifically authorized on the face
hereof. Buyer is not obligated to make partial payments to Seller, unless
specifically authorized on face hereof, for items which are parts of or
components to the complete system purchased, items which without the remaining
items do not perform to its intended purposed. Payments to Seller shall be
subject to Buyer's right of off-set of claims against Seller, whether arising
hereunder or independent of this purchase order.
9. PROPERTY
A. Unless otherwise provided for in this order, Seller upon receipt or
manufacture of any materials, parts, tools, equipment or other property to which
title is Buyer's shall bear all responsibility for any loss or damage thereto.
Upon completion of this order, or as otherwise specified herein, Seller shall
[Illegible] or account for such property to buyer in the same condition in which
it was received, except for normal wear and tear and except to the extent such
property is consumed and/or incorporated in the items delivered under the order.
In the event Seller is furnished property for use in connection with a U.S.
Government contract, a copy of Part II TERMS AND CONDITIONS (applicable to all
orders pursuant to U.S. Government Contracts) will be attached and [Illegible]
will establish property control procedures in accordance with Federal
Acquisition Regulations (FAR) as outlined in PART II, to be in effect on the
date of this purchase order.
B. Buyer shall retain title to any designs, sketches, drawings, blueprints,
patterns, dies, models, molds, plates, cuts, special appliances, and materials
furnished by or paid for by Buyer in connection with this purchase order. They
shall be recorded and prominently identified as property of buyer and retained
by Seller on consignment subject to examination by Buyer. They shall be
maintained in good condition and held at Seller's risk, replaced by Seller if
lost, damaged, or destroyed. Such property shall be used exclusively in
production of articles required by this purchase order and shall not be used for
larger quantities than specified herein, or for use by any other party besides
Buyer without explicit prior written consent by Buyer. Such property shall be
subject to disposition by Buyer at any and all times and upon demand, will be
returned to Buyer including any unused materials furnished by Buyer and all
spoiled or defective materials or products which contain any proprietary device,
unless Buyer shall otherwise direct in writing. Nothing in this paragraph shall
be construed as imposing obligation on Buyer to furnish such property.
10. PATENT PROTECTION: To the extent articles or materials delivered hereunder
are not manufactured pursuant to drawings or design specifications originated by
the Buyer, Seller guarantees sale/or use of any or all items delivered hereunder
will not infringe on any domestic or foreign patents, and Seller agrees to save
and hold Buyer and/or its customers harmless from any loss, damage, or liability
which may be incurred due to infringement or alleged infringement of patent
rights with respect to such items, and Seller will at its own expense defend any
action, suit or claim in which such infringement is alleged, provided Seller is
duly notified as to suits or claims against Buyer.
11. CANCELLATION
Termination for default are set forth in paragraph 5 hereof forms relating to
termination for convenience: Buyer may, whenever it deems necessary, terminate
this purchase order in whole or in part by written or telegraphic notice to
Seller. Upon such notice Seller will as to the terminated portion promptly stop
work, notify suppliers to stop work and protect property in Seller's possession
in which Buyer has or may require an interest. In event of such termination
Seller shall be paid actual costs incurred up to the time of determination which
are properly allocable to or apportionate herewith including costs to suppliers
which are so allocable, plus reasonable costs of settling and paying claims
arising directly from this termination and a reasonable allowance for profit
earned thereon; provided, recognized accounting practices and principles are
used and consistently applied. Seller shall not be entitled to any anticipatory
profits with respect to the terminated portion. In no event shall termination
charges exceed the price agreed upon as set forth herein for the terminated
items nor shall Buyer be liable for incidental or consequential liabilities.
Seller shall submit termination claim to Buyer within two months after effective
date of termination. If this purchase order is issued pursuant to a U.S.
Government Contract, the terms and conditions of PART II TERMS AND CONDITIONS
(Applicable to orders pursuant to U.S. Government Contracts) will be attached
and apply.
12. INSURANCE
A. All property of Buyer in Seller's possession shall at all times be insured by
Seller to its full value against loss by fire, theft and other damages.
B. In the event Seller, and/or it's subcontractors are required to enter
premises owned, leased, occupied or under control of Buyer and/or Buyer's
ultimate customer during performance of this Purchase Order, or during delivery
or installation [Illegible] articles herein contemplated, or during performance
of services otherwise required to be furnished by Seller, Seller agrees that
Seller will indemnify and hold harmless the Buyer from any loss, cost, damage,
expense or liability by reason of property damage or personal injury of
whatsoever nature or kind arising out of or as a result of the performance of
such services and/or delivery and/or installation, whether arising out of the
acts or omissions of Buyer. Seller agrees that it and its subcontractors and
sub-subcontractors will maintain public liability and property damage insurance
in reasonable limits covering the obligations set forth above and will maintain
proper worker's compensation covering all employees engaged in the performance
of each services and/or delivery and/or installation. Upon request, Seller shall
furnish Buyer with certificates of a carrier approved by Buyer which shall
recite that five days advance written notice will be given Buyer in case of
Seller cancellation of the policy.
<PAGE>
13. PROPRIETARY INFORMATION:
A. Non-Disclosure - Seller will not disclose to its customers, suppliers, or the
general public any information related to this Purchase Order and items
contained within without prior written consent of Buyer. The duty of
confidentiality also applies to use in advertising, public relations and any
other commercial purpose. Seller shall limit the disclosure of information
regarding this Purchase Order to its employees having a "need to know". Seller
further agrees to use such efforts and take such precautions to protect the
confidentiality of the information as it normally uses to protect its own
confidential information. The duty to protect this confidentiality will begin
upon issuance of this Purchase Order and terminate three years after delivery of
the requisite items herein.
B. Buyers drawings and designs - Seller acknowledges and agrees that all
drawings, specifications, technical information and data furnished to Seller
hereunder are submitted confidentially, remain property of Buyer at all times,
may not be directly or indirectly used, retained, copied or reproduced by Seller
except in manufacture of items furnished to Buyer, and may not be divulged
without prior written approval of Buyer. Seller agrees on demand by Buyer to
return to Buyer immediately all such drawings, specifications, technical
information and data, together with all copies or reprints in Seller's
possession or control and on request to deliver to Buyer reproducible copies of
all drawings prepared by Seller for use in connection with this Purchase Order.
C. Products, Engineering, Methods, and Manufacturing Processes - (a) Any
unpatented knowledge or information concerning Seller's products, methods or
manufacturing processes disclosed to Buyer in connection herewith shall, unless
otherwise specifically agreed to in writing, be deemed to have been disclosed as
part of consideration for this order and Seller agrees not to assert any claim
against Buyer by reason of Buyer's use or alleged use thereof. (b) If this
Purchase Order involves experimental research, developmental or engineering work
first reduced to practice by Seller for Buyer, Buyer shall receive all rights,
title and interest to such items. Seller shall furnish to Buyer, or another
party designated by Buyer, without restriction of use or disclosure, all
information and data Seller acquires or develops in research and development
work specifically identified in this Purchase Order.
14. WARRANTY:
A. Seller hereby warrants its items sold hereunder for a minimum of one year
from shipment by Buyer to its customer unless installation is provided, whereby
this warranty will commence upon successful completion of installation. Should
Seller's standard warranty extend for a period longer than one year, the
Seller's standard warranty applies.
B. Notwithstanding inspection and acceptance by Buyer of the items furnished
hereunder, Seller expressly warrants that all of the articles, assemblies and
materials furnished hereunder will be free of defects in design, material and
workmanship, merchantable, conform and perform to applicable specifications,
drawings, samples, [illegible] or other descriptions given within this Purchase
Order. These warranties shall survive acceptance and payment. These warranties
shall not be deemed to be exclusive; they will apply to the Buyer, its customers
and users. Seller agrees all warranties implied by law and all other legal
remedies apply herein with full force and effect. Seller further agrees to save
Buyer harmless from any loss, damage or expense whatsoever, including attorney's
fees that may be suffered as a result of Seller's breach of warranty.
15. CHANGES: Buyer by written notice, signed by its Purchasing Department
designated buyer, shall have the right from time to time and without notice to
[illegible] make changes in quantity, inspection, designs, specifications,
delivery schedule, method of shipment, FOB point, destinations, packaging,
packing, and other items [illegible] purchase order. Changes, clarifications,
and other matters which may be decided upon by others working for Buyer and
Seller will not be binding upon each other until such time Buyer, through its
designated buyer elects to notify Seller's sales representative in writing.
Minor changes or clarifications to scope, which have no effect on item pricing
or quantity, will be achieved by written notice by the designated buyer to
Seller and will be incorporated into this Purchase Order. Major changes to
scope, which effect a decrease, increase or additions in or to any line item
herein and affect pricing in any manner will be made through a bilateral written
amendment to this Purchase Order by Buyer prior to Seller taking action. In case
of reduction in quantity or scope, Buyer shall have no liability to Seller for
lost or anticipated profits. Failure of Seller to comply with Buyer's
instructions concerning any such change shall be grounds for termination for
default under Paragraph 5 hereof.
16. LAWS AND REGULATIONS: Seller agrees to comply with all Federal, State and
local laws, ordinances, and regulations and with all orders and regulations of
the Executive and other departments, agencies, and instrumentalities of Federal,
State and local Governments. Without limiting the foregoing, Seller agrees to
comply with all Federal and State labor laws, including but not limited to,
non-discrimination in employment, working conditions, wages and hours, such as
the Fair Labor Standards Act of 1938 as amended, and Seller further holds Buyer
harmless from any liability resulting from failure of such compliance.
17. DISPUTES: Any dispute, controversy or claim arising out of, in connection
with or in relation to this Purchase Order, its interpretation, construction,
formation, performance or breach shall be submitted to and determined by the
appropriate court of original jurisdiction of Suffolk County, State of New York.
Defenses with respect to the adequacy of service or process by either party
against the other are hereby waived so long as either Buyer or Seller serves a
summons on the other and deposits in the United States mail, postage prepaid,
certified mail return receipt requested. Pending the final determination of any
dispute arising in connection with this order, Seller will proceed with
performance, and to the extent as directed by Buyer. (If this purchase order is
issued pursuant to a U.S. Government Contract, PART II TERMS AND CONDITIONS
(Applicable to all orders pursuant to U.S. Government Contracts) will be
attached and apply).
18. WAIVER: The failure of either the Buyer or the Seller, in any one or more
instances, upon the performance of any of the terms [illegible] conditions of
this Purchase Order to exercise any right hereunder shall not be construed as a
waiver or relinquishment of the future performance of any such term [illegible]
by the other party hereto or the future exercise of such right, and the
obligation of such other party with respect to such future performance shall
continue in full force [illegible].
19. APPLICABLE LAW: The substantive law of the State of New York is applicable
to this Purchase Order. Where the procure or substance of the law of State of
New York would require the Federal common law of contracts, the Federal
Government Contract Law shall apply.
<PAGE>
EXHIBIT 3.10-B
ROBOTIC VISION SYSTEMS, INC.
DOMESTIC STANDARD TERMS AND CONDITIONS OF SALE
The following are the Terms and Conditions under which Robotic Vision Systems
Inc. (RVSI) sells and licenses its Products in the United States. Any deviations
from these conditions are listed in the "Special Provisions" section of RVSI's
Proposal.
1. Definition. "Equipment" shall mean the hardware components of RVSI's
Products; "Software" shall mean each software program provided by RVSI in
machine readable, object, printed or interpreted form; "Product(s)" shall
mean any configuration of hardware and software, including documentation,
sold or licensed by RVSI.
2. Acceptance of Orders. All orders placed with RVSI by Customer for Products
shall be subject to written acceptance by RVSI.
3. Prices and Taxes. Prices are exclusive of, and Customer is responsible
for, all sales, use and like taxes. RVSI will invoice Customer for all
applicable taxes, unless customer supplies an appropriate tax exemption
certificate in a form satisfactory to RVSI.
4. Payment. Net thirty (30) days after delivery.
5. Delivery.
A. Delivery will be made F.O.B. Hauppauge, New York, freight charges
billed to Customer, collect on delivery. Alternatively, Customer may
provide transportation.
B. Title to the Equipment will pass to the Customer upon delivery of
the Equipment by RVSI to a carrier, and upon that delivery, the
Customer will be responsible for, and will bear the entire risk of
loss or damage to the Products. In no event shall title pass to the
Customer for any Software.
C. The scheduled delivery date shall be 120-180 days after acceptance
of the purchase order unless otherwise specified in RVSI's P.O.
acknowledgment.
6. Site Preparation, Installation. When installation is required, the
Customer shall make available a suitable place for installation in
accordance with RVSI's installation requirements. The Customer will
provide adequate ingress and egress for the Equipment and RVSI personnel.
Except as otherwise agreed in writing, the Equipment shall be installed by
RVSI in any location within the United States. Customer shall furnish any
labor required for unpacking and placement of Equipment. Notwithstanding
the foregoing, RVSI shall be under no obligation to install the
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Equipment (i) if the Equipment and installation site are not prepared in
accordance with RVSI's installation requirements and made available to
RVSI for installation upon delivery of the Equipment to the Customer or
(ii) if the Equipment has been subjected to unusual physical, electrical
or electromagnetic stress, accident, neglect, misuse, or other damage
beyond the control of RVSI. Notwithstanding the above, RVSI does not
accept any. responsibility to connect RVSI Equipment to non-RVSI
Equipment; however, should RVSI, as a convenience to Customer, connect
such Equipment, it does so only on the condition that it has no liability
for any damage which may result.
7. Warranty
A. Equipment Warranty
1. Equipment is warranted against defects in workmanship for a
period of two winters in a seasonal environment to a maximum
of 18 months from date of delivery for all parts, material and
labor.
2. RVSI's sole responsibility under this warranty shall be to
either repair or replace, at its option, any component which
fails during the applicable warranty period because of a
defect in workmanship and material, provided Customer has
promptly reported same to RVSI. All replaced Equipment or
parts shall become RVSI's property. RVSI may use refurbished
parts for repairs. The warranty on all repairs will terminate
at the same time as the warranty of the Equipment.
3. RVSI will, at its option, honor the warranty either at the
Customer's site or at an RVSI repair facility in the United
States. The warranty excludes all costs of shipping, customs
clearance and any other related charges. If RVSI determines
that the Equipment is not defective within the terms of the
warranty, the Customer shall pay RVSI all costs of repairs at
RVSI's then prevailing rates.
4. RVSI's responsibility under this warranty is void if service
is performed by an unauthorized individual or if the equipment
is modified by the customer or if the Equipment is not
properly stored during the summer months. The Equipment must
be stored in a dry sheltered area where temperatures will not
exceed 80(degrees)F.
5. This warranty does not cover normal wear and tear.
6. This warranty does not cover any customer furnished equipment
(CFE) or modification to CFE equipment. RVSI will pass through
any RVSI supplier warranties covering modifications to
customer equipment.
B. General
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The warranties provided in Section A above are contingent upon
proper use of the Product. These warranties will not apply if
adjustment, repair or replacement is required because of accident,
unusual physical, electrical or electromagnetic stress, neglect,
misuse, failure of electric power, transportation, or causes other
than use in the ordinary course.
EXCEPT WITH RESPECT TO THE EXPRESSED WARRANTY STATED HEREIN, RVSI
DISCLAIMS ALL WARRANTIES ON PRODUCTS FURNISHED HEREUNDER, INCLUDING
WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE AND ALL OBLIGATIONS OR LIABILITIES ON THE PART
OF RVSI FROM DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL AND
PUNITIVE DAMAGES OR LOST PROFIT ARISING OUT OF OR IN CONNECTION WITH THE
USE OR PERFORMANCE OF THE PRODUCTS.
8. Limitation of Liability. RVSI's LIABILITY UNDER OR FOR BREACH OF THIS
AGREEMENT WILL BE LIMITED TO REFUND OF THE PURCHASE PRICE OR LICENSE FEE.
IN NO EVENT WILL RVSI BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE
PRODUCTS BY CUSTOMER. IN NO EVENT WILL RVSI BE LIABLE FOR ANY SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF
WARRANTY, NEGLIGENCE OR OTHERWISE.
9. Software License. RVSI shall retain all right, title and ownership of any
Software or software documentation provided to Customer.
10. Proprietary Rights.
A. RVSI retains for itself all proprietary rights in and to all
designs, engineering details, schematics, drawings and other similar
data pertaining to the Equipment and Software and which is provided
to the Customer under this Agreement. Proprietary Information which
RVSI may furnish to the Customer shall be in the Customer's
possession pursuant only to a restrictive, nontransferable,
nonexclusive Proprietary Information Non-Disclosure Agreement
(attached) under which the Customer may use such Proprietary
Information solely for the purposes of operating, servicing and
repairing the Equipment. The Customer shall not, without the express
written consent of RVSI, provide, disclose, transfer or otherwise
make available any Proprietary Information, or copies thereof, to
any third party. The Customer shall take appropriate action by
instructions, agreement or otherwise with those of its employees and
third party agents having access to any proprietary Information, to
restrict and control the use, copying, modification, disclosure,
transfer, protection and security of such proprietary Information,
in accordance with the provisions of these Terms and conditions. The
Customer agrees to protect any
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Proprietary Information with the same standard of care which it uses
to protect its own like information.
B. The Customer agrees not to disassemble, reverse-engineer, seek to
derive the programming or organization thereof, of modify any of the
Equipment or Software contained therein. This provision is also
applicable to any and all third parties.
11. Sale Conveys No License. The Equipment is offered for sale, and is sold by
RVSI subject, in every case, to the understanding that the sale does not
convey any license, expressly or by implication, under any patent or
patent claim with respect to which RVSI can grant licenses. This provision
is applicable to the Equipment or any assembly, circuit combination,
method or process therein, except that the Customer may use the Equipment
containing patented devices in the normal course of the Customer's
business solely in accordance with the specifications. RVSI expressly
reserves all its rights under such patent and patent claims.
12. Cancellation and Rescheduling Charges. In the event the Customer (i)
cancels any order or portion thereof, or (ii) fails to meet any obligation
hereunder including prompt payment of invoices, causing cancellation or
rescheduling of any order or portion thereof, or (iii) requests a
rescheduling of delivery or completion of Equipment and such request is
accepted by RVSI, Customer agrees to pay fair and reasonable
cancellation/rescheduling charges to RVSI. If reasonable
cancellation/rescheduling charges are not negotiated in a timely manner or
if the customer does not fulfill its payment obligation the equipment may
be subject to repossession at RVSI's discretion.
Order cancellation charges will under no circumstances be less than 20% of
total order value.
13. RVSI's Property. Materials (including documentation, schematics and
equipment), test equipment, copyrighted and/or licensed diagnostic
software (for which Customer has not purchased or obtained a license), and
associated media to be used by RVSI personnel at the installation site
shall remain the exclusive property of RVSI and shall be for the sole use
and under the control of RVSI. Customer shall allow RVSI personnel access
to the installation site to remove all such property after installation,
warranty or maintenance operations have been completed.
14. Equipment Changes. RVSI reserves the right to make changes to the
Equipment (i) which do not affect physical or functional
interchangeability or performance at a higher or equal level of assembly
of RVSI Equipment or ((ii)) which are required for purposes of safety, or
to meet Product specifications.
15. Export. Regardless of any disclosure by the Customer to RVSI of the
ultimate destination of the Products, the Customer will not export,
directly or indirectly, any RVSI Product without first obtaining an export
license from the U.S. Department of
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Commerce and from any other agency or department of the United States
Government, as required.
16. ForceMajeure. If the performance of this Agreement, or any obligation
hereunder except the making of payments hereunder is prevented, restricted
or interfered with by reason of fire, flood, earthquake, explosion or
other casualty or accident, strikes or labor disputes, inability to
procure or obtain delivery of parts, supplies or power, war or other
violence, any law, order, proclamation, regulation, ordinance, demand or
requirement of any governmental agency, or any other act or condition
whatsoever beyond the reasonable control of RVSI, RVSI upon giving prompt
notice to the Customer, shall be excused from such performance to the
extent of such prevention, restriction or interference: provided, however,
that RVSI shall take all reasonable steps to avoid or remove such cause of
nonperformance and shall resume performance whenever such causes are
removed. The delivery schedule shall be extended by a period of time equal
to the time lost because of any such delay or, at RVSI's discretion, RVSI
may cancel the order at no cost.
17. Assignment. This contract is not assignable without prior written approval
of RVSI and any attempts to assign any rights, duties, or obligations
under such contract without such approval shall be void.
18. General Provisions. Any purchase order or contract which may result from
the submission of RVSI's proposal is expressly limited to the terms
hereof; no additional terms or variations will be accepted. A contract
will become binding only when a written acceptance of the Customer's order
is sent to the Customer by RVSI. Such contract is governed by the laws of
the State of New York.
This contract constitutes the entire Agreement between the parties with
respect to the subject matter hereof and supersedes all proposals, oral
and written, all previous negotiations and all other communications
between the parties with respect to the subject matter hereof. These terms
and conditions shall prevail notwithstanding any different, conflicting or
additional terms and conditions which may appear on any order submitted by
Customer. Deviations from these terms and conditions are not valid unless
confirmed in writing by an authorized official of RVSI.
All rights and remedies, whether conferred hereby or by an other
instrument or law shall be cumulative, and may be exercised singularly or
concurrently. Failure by either party to enforce any contract terms shall
not be deemed a waiver of future enforcement of that or any other terms.
If any provision of this contract is held invalid under any applicable
statute or rule of law, such invalidity shall not affect other provisions
of this contract which can be given effect without the invalid provisions,
and to this end the provisions of the contract are declared to be
severable. Notwithstanding the above, such invalid provision or clause
shall be construed, to the extent possible in accordance with the original
intent of the parties.
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EXHIBIT 3.13
Litigation
Seller has brought suit against a former employee of Seller in the case of:
Robotic Vision Systems, Inc. vs. Carl Baranishyn ("Baranishyn")
Suffolk County, New York, Supreme Court Case No. 02651/98 (the "Suit").
Baranishyn has filed a counterclaim against Seller. Seller has alleged, among
other things that Baranishyn has misappropriated proprietary information and
trade secrets of Seller.
Because of the potential impact on the Assets and this Agreement, Seller shall
continue, in good faith and at its expense, to vigorously prosecute its claims
and defend against all crossclaims and counterclaims in the Suit. Seller shall
fully apprise Buyer of all events, developments and other material matters
concerning the Suit, and shall not settle or prejudice any aspect of the Suit
without the prior written consent of Buyer's authorized officers. Buyer shall
have the right, but not the obligation, to assume and control the prosecution
and/or defense of the Suit, or any related proceeding, claim or appeal, or to
require Seller to prosecute and/or defend in accordance with this Agreement.
In addition to Section 8.2, Seller will be fully responsible for and will
further defend, indemnify and hold Buyer harmless from all claims, obligations,
liabilities, damages, costs, losses and expense of any kind (including without
limitation court costs, attorneys and investigators fees and expenses) arising
from the Suit, or the employment or termination of, or other claim or action
with respect to, Baranishyn, whether or not such results from Buyer's direction.
<PAGE>
EX-7.2(d)
U.S. PATENT AND INVENTION ASSIGNMENT
THIS ASSIGNMENT is made as of this ______ day of_______________, 1998 by
Robotic Vision Systems, Inc., a New York corporation, having its principal place
of business at _________________________________________________, hereinafter
referred to as "RVSI".
WITNESSETH:
WHEREAS, RVSI is the owner of the patents and patent applications listed
on the attached Schedule A (the "Patents") and the rights to the inventions
listed on the attached Schedule B (the "Inventions"); and
WHEREAS, ROSEMOUNT AEROSPACE INC., a Delaware corporation ("Rosemount
Aerospace") having its principal place of business at 14300 Judicial Road,
Burnsville, Minnesota 55306, desires to acquire said Patents and Inventions;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Rosemount does hereby sell, assign, transfer, set over, convey and
deliver to Rosemount Aerospace, all its right, title and interest, in, to and
under (1) said Patents and the inventions covered thereby, and any
continuations, substitutions, divisions, reissues, modifications and extensions
thereof, and all priority rights, together with all claims for damages by reason
of past infringement of said Patents, with the exclusive right to sue for and
collect said damages and (2) the Inventions;
ALL OF THE FOREGOING to be held and enjoyed by Rosemount Aerospace for its
own use and for the use of its successors, assigns or other legal
representatives, as fully and entirely as the same would have been held and
enjoyed by RVSI if this transfer to Rosemount Aerospace had not been made.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be duly
executed as of the day and year first above written.
ROBOTIC VISION SYSTEMS, INC.
By________________________
Name:
Title:
<PAGE>
STATE OF )
) ss.:
COUNTY OF )
On this _______ day of ____________________, 1998, before me personally
came _____________________ to me known, who, being by me sworn, did depose and
say that he resides at _________________; that he is the _______________ of
ROBOTIC VISION SYSTEMS, INC., the corporation described in and which executed
the above instrument; and that he signed his name thereto by authority of the
Board of Directors of said corporation.
_______________________
Notary Public
<PAGE>
Exhibit 10(c)
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made this 16th day of
November, 1998, by and between ROSEMOUNT AEROSPACE INC., a Delaware corporation
("Buyer"), and ROBOTIC VISION SYSTEMS, INC., a Delaware corporation ("Seller").
RECITALS
A. Seller has developed certain ice detector products as described in Exhibit
A to this Agreement, and associated components, technology, intellectual
property, and items of Seller's Aircraft Safety Division ("Division")
(collectively, "Products).
B. Buyer desires to purchase and acquire from Seller and Seller desires to
sell and transfer to Buyer all of Seller's rights in and with respect to
the Products and all technology related to the Products, and those certain
assets of Seller related to the research, know-how, development,
production and sale of the Products identified in this Agreement on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
representations herein contained, Buyer and Seller agree to the foregoing and as
follows:
ARTICLE I
PURCHASE AND SALE
1.1 Purchase and Sale. Seller agrees to sell and transfer to Buyer and Buyer
agrees to purchase and accept from Seller on the Closing Date, as hereinafter
defined, free and clear of any and all claims, liens or encumbrances of any kind
whatsoever, the Products and all of the following (hereinafter collectively
referred to as the "Assets"):
a) Contract Rights. Seller's rights under the contracts and relationships
listed in Exhibit B hereto ("the Contacts"), including without limitation
Seller's rights to supplies and materials ordered, and accounts receivable
and other rights to payment with respect to the Contracts;
b) Tooling and Equipment. All of those certain items of machinery, tooling,
test equipment and/or other personal property listed on Exhibit C hereto
(the "Tooling and Equipment"), with an aggregate value of not less than
the amount set forth in Section 7.3(a);
c) Inventory. All inventories of raw materials, supplies, parts, components,
finished Products and other items related to the Products (including
without limitation those items listed on Exhibit D hereto) held by the
Seller on the Closing Date for use by Seller in connection with the
Products or for sale to customers (the "Inventory"), with an aggregate
value of not less than the amount set forth in Section 7.3(a);
d) Intellectual Property. All patents and patent applications, trademarks,
service marks, trade names, trademark, service mark and trade name
registrations, copyrights, (and applications therefor), product names,
designations, descriptions and identifiers, logos, product literature,
marketing materials, price lists, trade secrets, and all of the technical
and business information used or possessed by or on behalf of Seller
whether in tangible or intangible form (including all originals and copies
thereof), including, without limitation, designs, drawings, design data,
plans, specifications, test specifications and procedures, cost and
pricing data, customer lists and contacts, customer history information,
market information, data, charts, graphs, blueprints, sketches, models,
prototypes, samples, engineering drawings, engineering and R & D notebooks
and embodiments thereof, reports, analyses, assembly instructions,
procedures, product literature, quality control documentation, maintenance
and modification manuals, training installation and operation manuals,
processes, formulae, manufacturing techniques and processes, forms,
records, manuals, software, hardware, source codes, object codes, systems,
technical libraries, data bases, studies, know-how, knowledge, experience
base, CDRH and other government, regulatory and/or industry submissions or
approvals and applications therefor (if applicable to the Products, and
all information, rights, and data related thereto), and all other research
and development, projects, inventions, discoveries, improvements, trade
secrets, ideas, know-how, technical data and information, whether written
or unrecorded and whether in human readable, machine readable, electronic
format or other format, which pertain or relate to or arise
<PAGE>
from the Products, Product derivatives, Division-led research projects
and/or Contracts, and/or the manufacture, research, development approvals,
marketing, sale, warranty, operation, failure, return, repair and/or
performance of the Products, Product derivatives and/or Division-led
research projects together with all information, rights, and data in
whatever form related thereto, and the sole and exclusive ownership and
right to make, have made, develop, certify, operate, use and sell the same
(the "Intellectual Property"). The Intellectual Property includes, without
limitation, those items described in Exhibit E hereto; and
e) Related Rights. All claim, warranty or indemnification rights, causes of
action, rights of recovery and rights of set off of whatever kind of
description, (but not the responsibility or any obligation with respect
thereto) against third parties, arising out of or relating to the
Products, Contracts, Tooling and Equipment, Intellectual Property or
Inventory, and/or all applicable insurance coverages related thereto.
Assets do not include, and Seller will be solely responsible for, and will
defend, indemnify and hold Buyer harmless against, all claims, demands,
liabilities and obligations of any kind, in any manner arising from or
relating to the Assets or Products with respect to events occurring,
matters existing, or conditions or circumstances arising prior to the
Transfer Date (as defined below), all real estate and real estate related
matters (including without limitation, leases and environmental matters),
regardless of whether used in the production or sale of the Products,
performance of the Contracts, or use of the Inventory or Intellectual
Property, and all liabilities or obligations which are not expressly
assumed in Section 1.3 of this Agreement by Buyer. Seller will, at its
sole cost and expense, maintain its lease and operation of the Division's
facility located at 110 Lake Avenue South, Suite 46, Nesconset, New York
(the "Facility"), and continue to assume all responsibilities therefor,
both before and after the Closing and the period of the Transition
Services Agreement.
1.2 Retained Liabilities. Notwithstanding anything to the contrary, Seller
retains and, Buyer does not assume, any liability or obligation in any manner
arising from or related to (1) the Division, Seller or Facility at any time; or
(2) the Assets or Products for any event occurring, matter existing, or
condition or circumstance arising prior to the first to occur of (i) twenty-one
(21) days after the date on which substantially all of the Assets are received
at Buyer's Minnesota facility to allow for the production of the Products by
Buyer, or (ii) the termination of the Transition Services Agreement (attached as
Exhibit F) pursuant to Section 4.1(i) thereof (the "Transfer Date"). Without
limiting the foregoing, Seller shall retain, and Buyer shall not assume, the
foregoing and following liabilities and obligations (the "Retained
Liabilities"):
a) Taxes on the transfer, or any income, gain or profits realized by Seller,
as a result of the sale of the Assets under this Agreement;
b) All of Seller's federal, state, local and foreign taxes, charges, and/or
duties of all types, together with interest and penalties thereon;
c) All warranty, return, service and/or other obligations with respect to
goods or services of the Division; all warranty, return, service, and/or
other obligations with respect to the Products provided or sold on or
prior to the Transfer Date or Products which were held in Inventory on the
Transfer, subject to Section 5.8;
d) All claims alleging product defect, injury or death to persons or damage
to property arising out of Products manufactured or sold prior to the
Transfer Date;
e) Obligations and liabilities relating to or arising out of or incurred in
connection with the Contracts which accrue or relate to periods,
circumstances or events arising prior to the Transfer Date, and any costs
or liabilities arising from noncompliance by Seller with applicable laws
and regulations (including without limitation any increased costs or
additional liabilities imposed on Buyer in connection with any of the
Contracts as a result of such noncompliance by Seller).
f) Liabilities arising out of the sale or use of the Products or Assets or
conduct of the Division prior to the Transfer Date, or based on
occurrences, facts, or circumstances occurring or in existence on or prior
to the Transfer Date, whenever the liability arises or the claim is made;
g) Environmental, waste disposal or handling, and/or employee or occupational
health and safety related claims pertaining in any manner to the Facility,
the Division, or other assets or properties owned or operated by Seller;
<PAGE>
h) Any current or future obligation with respect to loans to or from Seller,
and liens against the Products or Assets created prior to the Transfer
Date;
i) Liabilities under Seller's or the Division's plans or arrangements for
wages, compensation, severance, retirement, vacation, medical disability,
or other employee benefits or obligations to employees (whether to current
or retired employees or their beneficiaries) of any kind including without
limitation any claims, liabilities or obligations relating to or arising
in connection with the actual or constructive termination of employment of
any employee of Seller; and
j) Any litigation, arbitration or other adversarial proceeding concerning the
Seller or the Division at any time, and with respect to the Products or
the Assets, arising in any manner from events, circumstances or condition
prior to the Transfer Date.
1.3 No Assumption of Liabilities. Except for liabilities or obligations of
Buyer's ownership of the Assets relating solely to events, circumstances or
occurrences after the Transfer Date, Buyer shall not assume and has not assumed
any liabilities or obligations of any kind or nature whatsoever, fixed or
contingent, known or unknown, due or not yet due. Except to the extent of
liabilities or obligations expressly assumed by Buyer in this Section 1.3,
Seller retains, continues to assume, and protects Buyer from, all obligations,
liabilities, debts and responsibilities of any kind with respect to the
Products, Assets, Division, Facility, or other operations or activities of
Seller.
1.4 Buyer agrees to grant to Seller a license after the Closing Date (defined
below) to that portion of the Intellectual Property necessary for certain
current uses by Seller (other than the Products) upon the terms of Exhibit 1.4.
ARTICLE II
PAYMENTS
2.1 Payment. Subject to the terms and conditions of this Agreement, the purchase
price for the Products and the Assets is $4,500,000.00 (four million five
hundred thousand dollars), subject to adjustments as described herein. Buyer
shall pay Seller on the Closing Date, by certified check or wire transfer (at
Buyer's option) the amount of $4,050,000.00 (four million fifty thousand
dollars) ("Base Purchase Price"), subject to adjustment at Closing pursuant to
Section 7.3(a). Buyer shall retain the $450,000.00 (four hundred fifty thousand
dollars) balance of the Purchase Price ("Balance") to be maintained in an
interest bearing account and distributed pursuant to the terms of Exhibits B and
G.
2.2 Allocation. The Purchase Price described in Section 2.1 above shall be
allocated among the Assets and the non-competition covenant of Section 5.2 as
provided in Exhibit H hereto. The parties agree that such allocation reflects
accurate, fair values for the Assets listed therein and the non-competition
covenant, and further agree to use such values for tax purposes and furnish each
other, upon request, such data and documentation as may be available to support
such values. Buyer and Seller agree to report this allocation for tax and other
purposes as may be required by law, and will not voluntarily take any position
inconsistent therewith in any judicial or administrative proceeding.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that the following are true and correct
as of the date hereof, will be true and correct as of the Closing Date, (as
hereinafter defined), will survive the Closing, and no claim has been made or
threatened which asserts a position contrary to these representations and
warranties:
3.1 Organization and Good Standing. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to enter into this Agreement and
consummate the transactions contemplated hereby.
3.2 Power and Authority; No Default. The execution, delivery and performance of
this Agreement by Seller and the transfers, conveyances, assignments and
deliveries contemplated hereby have been duly authorized by all necessary
corporate action of Seller's board of directors, which constitutes all required
corporate action. This Agreement is the valid and binding obligation of Seller,
enforceable in accordance with its terms. Neither the execution and delivery of
this Agreement nor the consummation of the transactions
<PAGE>
contemplated hereby will conflict with or violate the Articles of Incorporation
or By-laws of Seller or result in a violation or breach of, or permit any third
party to modify or rescind any term or provision of, or constitute a default
under, any indenture, mortgage, deed of trust, promissory note, contract,
license or other agreement to which Seller is a party or to which any of the
Assets relate, including without limitation the Contracts, other than the "FAA
Contract" described on Exhibit B, which requires consent of the Federal Aviation
Administration, and under Seller's bank credit agreement where the consent of
the lender is required, which Seller shall obtain prior to Closing.
3.3 Title to Assets. Seller is the sole owner of, and has good and marketable
title to, all of the Assets, free and clear of any mortgage, conditional sale
agreement, security interest, lease, pledge, hypothecation, financing statement,
license, adverse claim, lien or other encumbrance, of any kind or nature. The
Assets are not and have not been transferred, conveyed, licensed or encumbered
in any respect, and no Products or Assets are controlled by, licensed to or
from, or in the possession of, any other party, other than Products purchased
and paid for by customers consistent with past practice, and a lien on the
Assets in favor of The Bank of New York, which shall be fully and finally
released at Closing.
3.4 Condition and Sufficiency of the Tooling and Equipment. All of the Tooling
and Equipment has been well maintained and is in good operating condition, free
from defects (reasonable wear and tear excepted) and sufficient for the conduct
of normal operations to manufacture, develop, use, maintain, sell, operate, and
repair the current Products, continue research, development and other technical
efforts, and fully perform the Contracts.
3.5 Inventory. All Inventory is merchantable, suitable, useable and sufficient
in the manner consistent with the good business conduct and regular good faith
operation of Seller and the Division during the 12 month period prior to the
date of this Agreement ("past practice"), and is not obsolete, excessive or
below standard quality or outside of Seller's or customer's specification.
3.6 Intellectual Property. The Intellectual Property is sufficient to enable
Buyer to make, have made, use, manufacture, develop, maintain, sell, operate,
and repair the current Products consistent with past practice, and all Product
specifications, continue Division research, development and other technical
efforts, and fully perform the Contracts. Full ownership and all other rights to
and under such Intellectual Property will be conveyed to Buyer under this
Agreement without alteration, limitation or impairment. No past or present
employees, officers, directors, shareholders or affiliates of Seller or any
other third party has any rights in any such Intellectual Property by ownership,
license or otherwise. All rights of Seller's past and present employees have
been fully assigned to Seller. No license or other rights from or to any third
parties exist regarding the Intellectual Property (except to the extent of
rights of the U.S. Government pursuant to the FAA Contract, as specifically
described in Exhibit E). Seller is not liable, and has not made any contract or
arrangement or action whereby it may become liable, to any person for any
royalty, infringement, or other payment, compensation or claim for the use of
any Intellectual Property or the production and sale of the Products. No person
or entity other than Seller has any legal right, license or power to design,
manufacture and/or sell the Products or to use, apply or possess the
Intellectual Property (except to the extent of rights of the U.S. Government, as
specifically described in Exhibit E, pursuant to the FAA Contract). The
Intellectual Property does not infringe any intellectual property rights of
others, and Seller has not been charged or threatened with any infringement or
improper or unauthorized use or disclosure. To the best of Seller's knowledge
after due inquiry, no use of the Intellectual Property is being made or has been
made by any one other than Seller. All patents, trademarks and trade names have
been duly and timely filed and all fees have been properly paid, are free of any
claim or threat of infringement, are in full force and effect, and will be fully
valid and enforceable by Buyer after the Closing, subject to Buyer's maintenance
thereafter of such patents, trademarks and tradenames.
3.7 Completeness of Assets. The Assets constitute all of the property, items,
know-how and assets necessary to permit Buyer to manufacture, develop, use,
maintain, sell, operate, and repair the Products, perform the Contracts and
conduct and continue research and development efforts of the Division,
consistent with Seller's past practice. There are no other tangible or
intangible properties, or assets or intellectual property, necessary for Buyer
to produce and sell the Products, fully perform the Contracts (except for the
limitations with respect to the FAA Contract as described on Exhibit B), and
continue research and development efforts.
3.8 Functional Compliance. The Products, Tooling and Equipment, Inventory and
Intellectual Property correctly process, provide, store, and receive data prior
to, during and after the year 2000. All Products
<PAGE>
previously sold, in Inventory or hereafter produced or sold based on the
Intellectual Property will maintain full functionality and performance
consistent with specifications and contract requirements, and operate without
error before, during and after January 1, 2000, including but not limited to,
accepting data input, providing data output, storing and manipulating data,
providing calculations, recognizing the year 2000 as a leap year, and to the
best of Seller's knowledge after due inquiry, interfacing with other products.
3.9 Employees. No employees, agents or other affiliates of Seller have rights in
the Assets or are otherwise necessary for Buyer to manufacture, develop, use,
maintain, sell, operate, and repair the Products and fully perform the
Contracts. Seller acknowledges that Buyer is assuming no contract, payment,
compensation, benefits, royalty payment, or other obligation of or to any
employee, agent, contractor or affiliate of Seller. All current and former
employees of Seller involved in any way with the Division or the Assets have
executed and have currently effective a Confidentiality, Inventions and
Non-competition Agreement, substantially in the form attached as Exhibit 3.9.
Seller will take all action necessary and appropriate to enforce those
agreements and prosecute any violations thereof, and defend any claim arising
from any breach or violation of such agreement, at Seller's sole cost and
expense, for a period of five (5) years after the Closing Date. Seller shall
engage counsel and other representatives reasonably acceptable to Buyer, or at
Buyer's election, shall promptly authorize Buyer's direct assumption of such
claim and/or defense and shall promptly and fully reimburse Buyer's reasonable
costs and expenses thereof, including attorney's consultant's and investigator's
fees in connection with such enforcement or defense by Buyer.
3.10 Contracts. All Contracts are in full force and effect and enforceable in
accordance with their terms. All parties to such Contracts have performed all
obligations required to be performed by them. Seller and all other parties to
any such Contract are not and have not been in default thereunder, nor has there
occurred any other event which, with the passage of time or giving of notice or
both, would constitute default thereunder. Except as expressly set forth in
Exhibit B, no party to any Contract is required to consent, nor will anyone
otherwise object to the transfer and assignment of such Contracts to Buyer, nor
do any contracts grant any rights or license in the Assets to any government,
the contracting party or any other party. Seller will take all necessary action
to novate, assign and transfer Seller's rights under such Contracts to Buyer.
Seller will assume, accept and be fully responsible for all obligations of any
kind under the Contracts, or any other contract, warranty or other commitment or
liability, arising from events, circumstances or occurrences prior to the
Transfer Date. The assignment of the Contracts to Buyer under this Agreement
will not constitute a breach or default thereunder (subject to the novation,
described on Exhibit B, of the FAA Contract), and will not alter the prices,
duration or other terms contained therein. All of Seller's Contracts including
customer and vendor Contracts, are listed on Exhibit B. Copies of the Contracts
will be provided to Buyer at least 14 days prior to Closing, will be true and
complete, and will not be amended or modified.
No supplier Contract provides for any long-term obligation (in excess of a
single pending purchase order) or any quantity in excess of normal quantities
ordered consistent with past practice and Seller's standard terms and conditions
of purchase (attached as Exhibit 3.10A). Except as expressly set forth on
Exhibit B, all Contracts with customers are pursuant to Seller's standard terms
and conditions of sale (attached as Exhibit 3.10B). No customers of Seller in
respect of the Contracts are entitled to discounts, volume rebates, or similar
reduction in price except as provided by the express terms of the Contracts, nor
do such Contracts provide or allow for "most favored customer" or other price
warranty terms. No supplier or vendor contracts are single source or subject to
threat of termination. Seller has complied with all applicable laws and
regulations in the performance of the Contracts and the manufacture,
distribution, warranty and sale of the Products. There are no facts or
circumstances that have resulted in or could reasonably serve as the basis for
(i) any notice pursuant to any Contract default or warranty claim provisions or
notices of default, however termed, (ii) any Contract termination, whether for
default, convenience, cancellation or lack of funding (except for conditions of
government appropriations, described in Exhibit B, under the FAA Contract,) or
other reasons, (iii) any final decision or modification assessing a price
modification or claim for damages or other remedy or modification, however
described, (iv) any claim including without limitation claims based on
assertions of defective pricing or assertions of violations of Government cost
accounting standards or cost, principles, (v) any request for an equitable
adjustment of or claim concerning the Contracts submitted by or through Seller
or its customers or brought by any subcontractors or suppliers against Seller,
(vi) disallowance of cost (direct or indirect) or related claims, (vii) any
claim, litigation, demand, or proceeding concerning the Products, the Contracts,
or their performance or related technology, (viii) any claim, investigation,
enforcement or grand jury proceeding of any criminal, civil or administrative
nature by any investigative or enforcement agency of the U.S. Government or any
bureau or agency thereof or in the nature of a "Qui Tam" action by a private
party, or (ix) any allegation that any of the foregoing is or was applicable.
<PAGE>
3.11 Finders' Fees. Seller has not dealt with any broker or finder or incurred
any liability for brokerage fees, finders' fees, agents' commissions or other
similar forms of compensation in connection with this Agreement or the
transaction contemplated hereby.
3.12 Approvals. No authorization, approval or consent of any governmental
department, bureau or agency or other public board or authority, or any third
party is required for the consummation by Seller of the transfer of the Products
or Assets to Buyer and other transactions contemplated by this Agreement except
for consent of the FAA to novate and transfer the FAA Contract to Buyer and the
lien in favor of the Bank of New York, which Seller shall cause to be released
prior to Closing.. No FAA or other government certification or approval is
required to use, operate, market or sell the Products consistent with past
practice. No customer ice safety or management program has disapproved, nor has
the use or inclusion of the Products in such a program been rejected or
disapproved.
3.13 Claims. Except as provided in Exhibit 3.13, there are no claims, actions,
suits, or proceedings of any nature which have been made, or are currently
existing or threatened arising from the Products or the Assets, or the
ownership, use, marketing, sale, warranty or other matter relating thereto.
Seller has taken all reasonable action to protect the Assets and prevent loss,
damage, waste or unauthorized use of the Assets. Seller will defend, indemnify
and hold harmless Buyer from all such claims, actions, suits or proceedings of
any kind or nature arising from or relating in any way to design, production,
use, marketing, sale, handling, warranty or any other matter arising from any
circumstance, event, omission or occurrence prior to the Transfer Date.
3.14 Facility. Seller is the sole lessee and operator of the Facility. Seller
and its employees exercise full control of the activities and operations of the
Facility. The Products, Tooling and Equipment, Inventory and the Facility have
not used and do not use asbestos, PCB's, radioactive materials, or any material
not properly registered and approved under applicable law.
3.15 Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER MAKES NO EXPRESS
OR IMPLIED WARRANTIES TO BUYER, INCLUDING NO IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE ASSETS.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the following are true and correct
as of the date hereof and will be true and correct as of the Closing Date, will
survive the Closing, and that no claim has been made or threatened which asserts
a position contrary to these representations or warranties:
4.1 Organization and Good Standing. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to enter into this Agreement and
consummate the transaction contemplated hereby.
4.2 Power and Authority; No Default. The execution, delivery and performance of
this Agreement by Buyer have been duly authorized by all necessary corporate
action. This Agreement is the valid and binding obligation of Buyer, enforceable
against it in accordance with these terms. Neither the execution and delivery of
this Agreement, or the consummation of the transactions contemplated hereby will
conflict with or violate the Certificate of Incorporation or By-Laws of Buyer.
4.3 Finders' Fees. Buyer has not dealt with any broker or finder or incurred any
liability for brokerage fees, finders' fees, agents' commissions or other
similar forms of compensation in connection with this Agreement or the
transactions contemplated hereby.
4.4 Approvals. No authorization, approval or consent of any governmental
department, bureau or agency or other public board or authority is required for
the consummation by Buyer of the transaction contemplated by this Agreement. No
consent of third parties, other than Buyer's Board of Directors, is required by
Buyer to consummate the transactions contemplated by this Agreement.
4.5 EXCEPT AS SET FORTH IN THIS ARTICLE 4, BUYER MAKES NO EXPRESS OR IMPLIED
WARRANTY OR REPRESENTATION OF ANY KIND.
<PAGE>
ARTICLE V
COVENANTS
5.1 Confidentiality Covenant.
a) Seller for itself, and on behalf of its affiliates, officers, directors,
and (to the extent set forth in Section 3.9) employees (collectively
"affiliates"), at any time from and after the date of execution of this
Agreement, directly or indirectly, without the prior written consent of
Buyer, will not disclose or, except as set forth in Section 1.4 and
Exhibit F, use any Intellectual Property or confidential information
involving or relating to the Assets or this Agreement including without
limitation any information derived from the Intellectual Property or the
Contracts.
b) Seller and Buyer will not disclose the specific terms of this Agreement
except to parent and affiliated companies, or as required by law or
regulations, or as set forth in a mutually agreed press release or other
industry announcement
5.2 Non-Competition Covenant. Seller, for itself and on behalf of its
Affiliates, will not for a period of ten (10) years after the Closing Date,
directly or indirectly, whether for its own benefit or not, own, manage,
operate, control or participate in, or be connected as an officer, employee,
partner, director or otherwise with, or have any financial interest in, or aid
or assist any one in the conduct of, (i) any entity or business which competes
with Buyer or Buyer's parent or affiliated companies in the design, production,
manufacture, use or sale of the Products or any derivatives thereof (whether for
use as original equipment, spares, replacement parts or otherwise), or of any
items which utilize the Intellectual Property (a) in the "aerospace market" (as
defined below), or (b) for the protection against, or detection or sensing of,
ice or other frozen elements or contaminants in any market, within the
geographic area in which the Products are offered for sale, it being understood
and agreed that such geographic area is worldwide; and/or (ii) any interference
with or attempt to divert or entice away from Buyer, any customer, supplier or
business related to the Products or Intellectual Property or derivatives
therefrom. Notwithstanding anything to the contrary herein, mere ownership of
not more than five percent (5%) of the voting stock of any publicly-held
corporation, or uses of the Intellectual Property by Seller as expressly set
forth in Exhibit 1.4, shall not constitute a violation of this Section 5.2. For
the purpose of this Section 5.2, the "aerospace market" is the market for
products, components and/or other items and services for use, incorporation,
interface, testing, repair, replacement, upgrade or other application in
aircraft, other fixed and/or rotary wing vehicles, spacecraft, missiles,
satellites, airports, spaceports and other ground-based uses, and other aviation
related application, whether as original equipment, or for replacement, spares
or maintenance.
5.3 Enforcement. Seller acknowledges and agrees that, because the legal remedies
of Buyer may be inadequate in the event of a breach of, or other failure to
perform, any of the covenants and obligations set forth in Sections 5.1 or 5.2
hereof by Seller or its affiliates, Buyer may, in addition to obtaining any
other remedy or relief available to it (including without limitation damages at
law), enforce the provisions of Sections 5.1 or 5.2 hereof by injunction or any
other equitable remedy. Seller will be liable for, and will assist Buyer's
actions against, any violation of the obligations of this Agreement by Seller's
affiliates. Seller also acknowledges and agrees that no breach by the Buyer of,
or other failure by the Buyer to perform, any of the covenants and obligations
of the Buyer under this Agreement shall relieve Seller or its affiliates of any
of its or their obligations under this Agreement. In the event of any such
alleged breach or failure of performance, Seller will seek no remedy other than
liability for direct damages at law.
5.4 Severability. The parties agree that the provisions with respect to
duration, geographic scope and other restriction set forth in Sections 5.1
and/or 5.2 hereof are reasonable to protect the legitimate interests of the
Buyer. The provisions of this Agreement are severable. In the event that any
provision should, for any reason, be finally determined by a court of competent
jurisdiction to be invalid or unenforceable in any respect, it shall not
invalidate, render unenforceable or otherwise affect any other provision hereof.
Such invalid or unenforceable provision shall be deemed to be modified to
accomplish the most similar purpose in a valid and enforceable manner to the
maximum extent possible under applicable law.
5.5 Taxes.
a) Seller shall be fully responsible for and pay any and all federal, state
and local sales, use, transfer or other taxes or charges or increases
thereof which may be imposed by reason of the sale, use or transfer of the
Assets to Buyer pursuant to the terms of this Agreement. Under no
circumstances will Buyer be liable for
<PAGE>
any income, gross receipts or other similar tax measured or computed in
reference to income or proceeds of Seller. Seller shall be solely
responsible for, and shall indemnify and hold Buyer harmless from and
against, any and all federal, state or local income, gross receipts or
other similar tax measured or computed in reference to gross or net
income, the Purchase Price or the allocation pursuant to Exhibit G.
b) All personal property taxes assessed against or attributable to the Assets
prior to the current property tax year will be the sole responsibility of
Seller. Any personal property taxes assessed against the Assets for the
current property tax year shall be apportioned between the parties based
on the number of days each party possessed the Assets during the current
tax year. If either party pays any amount which the other is obligated to
pay pursuant to this Section 5.5, then the party so paying shall be
promptly reimbursed in cash by the other party within 14 days after
presentation of such overpayment documentation. Possession of the Assets
will be determined by the date all Assets are actually delivered to Buyer
pursuant to Section 6.4.
5.6 Technical Assistance. To assist Buyer in the design, start-up, and
manufacturing of the Products and use of the Assets, Seller shall provide to
Buyer, at times mutually agreeable to Seller and Buyer, the services of
qualified engineering and technical employees of Seller who are familiar with
the Products and the Assets, for up to an aggregate of 60 hours after
termination of the Transition Services Agreement. Upon submission of reasonable
supporting documentation on forms requested by Buyer, Buyer will promptly
reimburse Seller for such technical and engineering assistance for reasonable
travel, lodging and related out of pocket expenses (excluding charges for wages
or salaries of such employees).
5.7 Access to Information. Prior to the Closing, Seller shall provide Buyer and
its representatives with access during normal business hours to the books,
records and facilities of Seller to permit Buyer to familiarize itself with the
Assets, Products and matters related to Buyer's purchase thereof, provided that
such review shall not unreasonably interfere with the operations of Seller.
Seller shall also furnish Buyer prior to Closing with such information
concerning the Assets and Products as Buyer may from time to time reasonably
request. At Buyer's request, Seller shall assist Buyer, with respect to the
purposes described in Sections 6.1(d) through (j), including without limitation,
establishing joint contact with appropriate customer representatives and each of
Seller's third party vendors which supply Seller with items not produced by
Seller and/or which are necessary for production of the Products. Seller's
complete and accurate list of its most significant customers and vendors is
included in Exhibit B attached hereto.
5.8 Maintenance and Repair. All responsibility for Products produced prior to
the Transfer Date shall remain a Retained Liability of Seller. However, Buyer
will provide routine maintenance and repair services with respect to ID-1H ice
detector products for an eighteen (18) month warranty period for such Products
manufactured the between the Closing Date and the Transfer Date, at Buyer's
expense, up to, but in no event in an amount exceeding, the cost to manufacture
the particular Product under warranty. Buyer will also provide maintenance and
repair services with respect to Seller's ID-1 and ID-1H ice detection Products
sold prior to the Closing Date, at Seller's sole cost and expense. Seller shall
reimburse all of Buyer's costs, expenses and other charges and amounts incurred
pursuant to the terms of this Section 5.8 within 14 days after receipt of
Buyer's invoice, without reduction or set-off.
ARTICLE VI
CONDITIONS OF CLOSING
6.1 Conditions to Obligations of Buyer. The obligations of Buyer under this
Agreement are subject to the satisfaction prior to and at the Closing Date of
all the following conditions:
a) All representations and warranties of Seller shall be true and correct as
of the Closing Date;
b) Seller shall have performed and satisfied all terms, covenants and
conditions required by this Agreement to be performed or satisfied by it
on or prior to the Closing Date;
c) Seller shall have tendered and delivered the required documents and
instruments at the Closing as set forth in Section 7.2 of this Agreement;
d) Buyer shall be satisfied that it can procure from Seller's vendors or
other third parties, if any, all of those certain items not produced by
Seller and which are necessary or convenient for the proper manufacture,
development, use, maintenance, sale, operation and repair of the Products
as required by the Contracts, and on terms and conditions consistent with
past practice;
<PAGE>
e) Buyer shall have met with appropriate representatives of its choice of
customers, potential customers, vendors, suppliers and other parties to
the Contracts as Buyer deems necessary, and Buyer shall be satisfied that
such parties are willing to continue to do business with Buyer after the
Closing on terms and conditions consistent with the Contracts and/or
otherwise consistent with past practice;
f) Seller's Tooling and Equipment shall have demonstrated to Buyer's
satisfaction that it is in good operating condition, fully functional, and
capable of using, testing, storing, and handling the Intellectual Property
and the manufacture, development, use, maintenance, sale, operation, and
repair of the current Products and continuation of Division research,
development and other technical efforts, in full compliance with all
applicable technical specifications of customer and/or Seller, and the
Contracts and customer requirements, and has an aggregate value of at
least that set forth in Section 7.3(a);
g) Buyer shall be satisfied that the Inventory is in good, marketable, and
merchantable condition, with an aggregate value of at least that set forth
in Section 7.3(a);
h) Buyer shall have determined to its satisfaction that the current Products
and all Division research, development and other technical efforts have
fully satisfied all customer and/or Seller qualification tests, standards
and requirements applicable to such Products and the Contracts, and that
all consents, assignments and novations have been obtained with respect to
the Contracts, or will, to Buyer's satisfaction, be obtained regarding the
FAA Contract;
i) Seller's employees listed on Exhibit G continue to be employed full time
by Seller prior to the Closing Date, and Buyer receives adequate
assurances such Employees will continue to be employed by Seller during
and subject to the period of the Transition Services Agreement, with all
obligations relating to such employees' employment with Seller at all
times being retained by Seller;
j) Buyer shall be satisfied that the Intellectual Property is sufficient for
Buyer's purposes, has not been disclosed to, used by or infringed by any
third party, and is fully sufficient for the proper manufacture,
development, use, maintenance, sale, test, operation and repair of the
current Products, and the continuation of research, development and other
technical efforts.
k) Buyer shall be satisfied with the results of investigation of the claims
described in Section 3.13 and other due diligence, and that liens have
been released and consents of Seller's lender has been obtained;
l) The Transition Services and other agreements (if any) which are Exhibits
hereto, are completed and signed by Seller;
m) The insurance to be provided pursuant to Section 8.4 shall be maintained
in full force and effect;
n) Buyer shall have received written approval (or with respect to the FAA
Contract, shall be satisfied that written approval will be received) from
all appropriate government agencies, industry organizations and/or other
third parties to authorize the transfer, assignment and/or novation
without restriction of all certifications, authorities and other
governmental, industry and/or third party approvals and recognitions with
respect to the Products and the Assets to Buyer.
6.2 Conditions to Seller's Obligations. The obligations of Seller hereunder are
subject to the satisfaction at or prior to the Closing Date of all of the
following conditions:
a) All representations and warranties of Buyer contained in this Agreement
shall be true and correct as of the Closing Date;
b) Buyer shall have performed and satisfied all covenants and conditions
required by this Agreement to be performed or satisfied by it on or prior
to the Closing Date;
c) Buyer shall have tendered and delivered the required documents on the
Closing Date as set forth in Section 7.3 of this Agreement;
d) Buyer shall have tendered and delivered the Base Purchase Price pursuant
to Section 2.1, subject to adjustment pursuant to Section 7.3(a);
<PAGE>
e) Transition Services and other agreements (if any) which are Exhibits hereto,
are completed and signed by Buyer.
6.3 Conditions to the Obligations of Both Parties. The respective obligations of
Buyer and Seller to consummate the transactions contemplated by this Agreement
shall be subject to the conditions that (i) there shall not be in effect any
statute, regulation, order, decree or judgment that would prohibit the
transactions contemplated by this Agreement, (ii) no action shall have been
taken or threatened by any governmental entity which would make it illegal or
destructive of the fundamental purposes of this Agreement to complete the
transactions contemplated by this Agreement, and (iii) the conditions to Closing
of the other party as set forth in this Article 6 are satisfied.
6.4 Transfer of Assets. Seller shall be responsible for the careful delivery of
the Products and Assets. Copies of tangible Intellectual Property will be
delivered to such Buyer within two (2) days after the Closing Date or such
longer time as Buyer may agree. Unless otherwise directed by Buyer, all Products
and Assets shall remain only at Seller's Nesconset, New York facility for the
period of the Transition Services Agreement for the sole purpose to allow Seller
to perform the obligations of Transition Services Agreement for the benefit of
the Buyer. Transfer of title to the Products and Assets to Buyer and ownership
thereto shall be effective at 12:01 AM eastern time on the Closing Date. Risk of
loss and responsibility for the care, protection and control of the Assets will,
however, transfer only after delivery to and acceptance of the Assets by Buyer
at Buyer's designated facility in Minnesota. In any event, all Assets will be
safely delivered to Buyer's designated facility when directed by Buyer at
Buyer's expense, but no later than termination of the Transition Services
Agreement, including without limitation, originals and all copies of tangible
Intellectual Property in whatever form.
ARTICLE VII
CLOSING
7.1 Closing. The Closing ("Closing") shall occur upon completion of the
deliveries and performances required by Sections 7.2 and 7.3. The Closing
hereunder shall be held at Buyer's Akron, Ohio offices on December 4, 1998 at
10:00 a.m. local time ("Closing Date") or at such other place or on such other
date as Buyer and Seller shall agree, provided that such Closing shall take
place on or before December 31, 1998.
7.2 Seller's Obligations. At the Closing, Seller shall deliver or cause to be
delivered to Buyer the following:
a) A Bill of Sale in form and substance acceptable to Buyer conveying the
Assets to Buyer subject only to the limitations permitted in this
Agreement;
b) Assignments, novations and/or consents, in form and substance acceptable
to Buyer assigning and/or novating the Contracts to Buyer;
c) Written release of all liens and encumbrances upon the Products and Assets
in form and substance satisfactory to Buyer;
d) Executed assignments of patents and patent applications (in the form of
Exhibit 7.2(d)), and any other instruments of conveyance that counsel for
Buyer may reasonably deem necessary or desirable to effect or evidence the
transfers contemplated hereby;
e) A Certificate dated the Closing Date, signed by the President of Seller
certifying that the conditions specified in Sections 6.1(a), (b) and (c)
have been satisfied;
f) Seller's executed copies of the Transition Services Agreement and such
other documents, certifications and other items required to be delivered
by the Seller at Closing by this Agreement;
g) Opinion letter of Seller's counsel providing that the patents and patent
applications set forth on Exhibit E are timely and properly filed and
maintained, will be fully valid and enforceable by Buyer, and to counsel's
knowledge after due inquiry do not infringe the rights of any party; and
h) Seller's insurance endorsements, waivers and other applicable documents as
described in Section 8.4.
<PAGE>
7.3 Buyer's Obligations. At the Closing, Buyer shall deliver or cause to be
delivered to Seller the following:
a) The Base Purchase Price required to be paid under Section 2.1 hereof;
provided however, if, at Closing, the aggregate book value of the
Inventory is less than $350,000, or the aggregate book value of the
Tooling and Equipment is less than $450,000 each amount respectively
defined as the "Minimum Value"), the amount of the Base Purchase Price
will be reduced by the same amount by which the actual book aggregate
value of such Asset is less than its corresponding Minimum Value;
b) A Certificate executed by an officer of Buyer dated the Closing Date
certifying that the conditions specified in Sections 6.2(a), (b) and (c)
hereof have been satisfied; and
c) Buyer's executed copies of the Transition Services Agreement, and such
other documents and items required to be delivered by Buyer to Seller at
Closing by this Agreement.
7.4 Further Assurances. From time to time at or after the Closing, Seller shall,
as soon as reasonably practicable after request therefor by Buyer and without
further consideration, execute and deliver or cause to be executed and delivered
to Buyer, in proper form for relevant recording, filing or registration, such
instruments of conveyance, transfer and assurances with respect to the Products
and/or Assets. Seller shall also provide such other documents and take such
other action, as may be reasonably necessary or desirable to transfer to and
vest and confirm in Buyer any and all rights and properties in the Assets sold
or intended to be sold, conveyed or transferred hereunder or otherwise to carry
out the intent of this Agreement.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1 Survival. The representations, warranties, covenants and continuing
obligations of Seller and Buyer provided in this Agreement shall survive the
Closing.
8.2 Indemnity.
a) Seller agrees to hold harmless, indemnify and defend Buyer and its
employees, insurers, shareholders, representatives, successors, affiliated
companies and assigns, from and against any loss, claim, cause of action,
damage, liability, expense or cost of any kind or amount whatever, whether
known or unknown, including without limitation court costs and reasonable
attorney's and consultant's fees, that relate to or arise out of (i) any
alleged or actual breach of any representation or warranty of Seller made
in this Agreement, (ii) violation of any other term or condition of this
Agreement by Seller, (iii) any act, omission or operation of Seller, the
Division or their respective employees, agents, officers, directors or
representatives, (iv) the Retained Liabilities, or (v) the Assets and/or
the Products, the Seller's or Division's ownership, design, manufacture,
use, maintenance, sale, condition, warranty or any other aspect, event or
circumstances occurring, initiated or existing to any extent prior to the
Transfer Date, (regardless of whether or not discovered or continuing
after the Transfer Date), including without limitation, any alleged or
actual infringement of a third party's rights resulting from Buyer's use
of the Intellectual Property, excluding however, infringement that results
solely from Buyer's material modification of the Intellectual Property or
the design or specification of the Product;
b) Buyer agrees to hold harmless, indemnify and defend Seller and its
employees, insurers, shareholders, representatives, successors, affiliated
companies, and assigns, from and against any loss, claim, cause of action,
damage, liability, expense or cost of any kind or amount whatever,
including court costs and reasonable attorney's and consultant's fees,
that relate to or arise out of (i) any alleged or actual breach of any
representation or warranty of Buyer made in this Agreement, (ii) violation
of any other term or condition of this Agreement by Buyer, and (iii)
Buyer's ownership, design, manufacture, use, sale, condition, warranty or
any other aspect, event or circumstance with respect to the Assets and/or
Products if designed, used, manufactured, sold and warranted by Buyer
after the Transfer Date and the risk of loss to the Assets has been
transferred to Buyer pursuant to Section 6.4.
8.3 Indemnification Procedure. With respect to any matter covered by the above
indemnifications, the party to be indemnified will give prompt written notice of
the claim or demand to be indemnified, and will thereafter cooperate fully with
the indemnifying party in the defense of the claim or demand, which defense
<PAGE>
shall be paid by the indemnifying party, with counsel and consultants to be
mutually agreed upon. No settlement or compromise of such claim or demand shall
be binding on the indemnifying party unless it shall have consented in writing
to such settlement or compromise. All amounts determined to be due and owing
under this Article VIII will be paid within thirty (30) days after such final
determination. All invoices for defense, consultant's and attorney's fees shall
be paid within thirty (30) days after receipt. All such amounts and invoices
shall be paid in full when due as stated herein without reduction or set off.
The indemnified party shall cooperate with and assist the indemnifying party's
defense of any indemnified matter, with all out of pocket costs to be paid by
the indemnifying party. Either party may retain additional counsel and
consultants to assist with any indemnified matter, at its own expense.
8.4 Insurance. Seller shall name Buyer as additional insured under Seller's (i)
business interruption insurance and employee liability insurance, through the
Transfer Date, and (ii) general liability (including contractual liability), and
product liability insurance applicable to Seller's indemnification pursuant to
this Article VIII. With respect to indemnified matters, Seller's insurance shall
be primary and Seller's insurers shall waive all claims of subrogation against
Buyer. Seller will provide Buyer with documentation evidencing the additional
insured endorsements and waivers of subrogation upon Buyers request and pursuant
to Section 7.2 (g). Seller shall not reduce the coverage or limits of (1)
business interruption or employee liability insurances prior to the Transfer
Date, or (2) general liability or products liability insurances until the
earlier of seven (7) years after the Transfer Date or when all Product units
produced prior to the Transfer Date have been destroyed or returned to and
retired by Buyer. Upon written request by Seller, Buyer will provide information
regarding the approximate number of Product units produced prior to the Transfer
Date that have not been returned to and retired by Buyer.
ARTICLE IX
TERMINATION
9.1 Termination. This Agreement may be terminated and abandoned at any time
prior to the Closing, without liability of any party, by either Buyer or Seller,
upon written agreement, or upon written notice to the other if the Closing shall
not have occurred on or before December 31, 1998.
ARTICLE X
MISCELLANEOUS
10.1 Costs and Expenses. Each party hereto shall bear its own costs and
expenses, including attorney's fees, in the preparation of this Agreement.
10.2 Notices. All notices required or permitted hereunder shall be in writing
and shall be deemed to be properly given when received either by personal
delivery, next day delivery by a national courier or by delivery certified U.S.
mail, return receipt requested, properly addressed to the party entitled to
receive such notice at the address stated below:
To Buyer: Rosemount Aerospace Inc.
14300 Judicial Road
Burnsville, Minnesota 55306-4898
Attention: Vice President -- Commercial Transport
With a Copy to: BFGoodrich Aerospace
250 N. Cleveland-Massillon Road
Akron, OH 44334
Attention: Law Department
To Seller: Robotic Vision Systems, Inc.
5 Shawmut Road
Canton, Massachusetts 02021
Attention: Chief Financial Officer
With a Copy to: Cooperman Levitt Winikoff Lester & Newman
800 Third Avenue
New York, New York 10022
Attention: Ira Roxland
<PAGE>
10.3 Entire Agreement. This Agreement, including the Exhibits hereto, shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings. Each Party shall cooperate and assist the other for all purposes
contemplated by this Agreement. All headings and captions are for convenience
only and shall not be used in the interpretation of this Agreement.
10.4 Waiver. Discharge, Etc. This Agreement may not be released, discharged or
modified except by an instrument in writing signed by a duly authorized officer
on behalf of each of the parties hereto. The failure of any party to enforce any
provision of this Agreement shall not be a waiver of such provision or
subsequent breach of the same or any other obligation hereunder.
10.5 Governing Law. This Agreement shall be construed and the rights of the
parties hereunder shall be governed by the laws of the State of Minnesota and
without regard to conflicts of laws. Any unresolved disputes shall be submitted
to the Federal Courts of Minnesota.
10.6 Counterparts. This Agreement may be executed by one or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one Agreement.
10.7 Severability. If any provision of this Agreement is held to be invalid or
unenforceable, for any reason, it shall not invalidate or render unenforceable
or otherwise affect any other provision hereof, and such invalid or
unenforceable provision shall be construed by limiting it so as to be valid and
enforceable to the maximum extent compatible with, and possible under,
applicable law.
10.8 Successors and Assigns. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their permitted successors and assigns;
provided, however, that the Buyer may assign its rights without the consent of
any of the parties hereto to any affiliate of the Buyer, but no such assignment
will relieve Buyer of its obligations under this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed as of the date first above written.
ROSEMOUNT AEROSPACE INC. ROBOTIC VISION SYSTEMS, INC.
By: /s/ John J. Grisik By: /s/ Pat V. Costa
---------------------- -----------------------
Name: John J. Grisik Name: Pat V. Costa
---------------------- -----------------------
Title: Chairman Title: Chairman, President and
Chief Executive Officer
---------------------- -----------------------
<PAGE>
EXHIBIT A
Products
- - All ice detection technology and equipment.
- - Ice detection products known as ID-1 and ID-1H, as described below and all
derivatives thereof
- - All mechanical vision-based inspection and measurement systems, and
electro-optical sensing technology, relating to the detection, protection,
and/or measurement of ice or other frozen elements or contaminants.
- - All products and derivatives arising from the Contracts.
<PAGE>
EXHIBIT B
Contracts
Federal Aviation Administration Contract Number DTFAO3-97-C-00005, "Research and
Development leading to the Fabrication and Testing of a Demonstrator Aircraft
Mounted Broad Area Ice Detection System."
Contract #66688 with Delta Air Lines, "Domestic Service and Training Contract".
P.0./Contract #1107834 with Delta Airlines for the purchase of Products (ID-1H).
Customers (contracts in accordance with RVSI standard terms and conditions of
sale other than Delta and FAA contracts described above)
Delta Air Lines
FedEx
Boeing
Transport Canada
Federal Aviation Administration
Top Vendors (in accordance with RVSI standard terms and conditions of purchase)
Salina
EG&G
Marshall
3M
Loughlin
Kaman Bearings
Westview
National
Precision Metals
JML Optics
Phase 1
CVI Laser
Euro Precision
Melles Griot
Schott
Edmund Scientific
Accufab
Radisys
Description of FAA Contract: Consent of the FAA is necessary to novate the
current contract between Seller and the FAA. Seller anticipates that such
consent will be obtained, but not prior to Closing. Seller will formally request
such consent prior to Closing and will provide Buyer with copies of all
documents regarding such request and application to novate. Seller will continue
to provide its best effort, before and after Closing, to novate and transfer the
benefits of the FAA Contract to Buyer.
Buyer shall retain $75,000 of the Balance of the Purchase Price. Buyer shall pay
such amount to Seller within 14 days after receipt of all documentation
completing the novation of the FAA Contract to Buyer. Buyer shall retain such
amount of the Balance (in addition to all other rights and remedies) free and
clear of any claim of Seller or any other party if, within one (1) year after
the Closing Date, (i) all rights, research, development, intellectual property,
funding and other amounts and benefits under the FAA Contract is not exclusively
transferred to Buyer by Seller, or (ii) novation of the FAA Contract to Buyer is
not completed, fully executed, and delivered to Seller. In any event, all
amounts paid to or received by Seller after the Closing Date pursuant to the FAA
Contract shall be paid and assigned in full, without reduction or offset, to
Buyer.
<PAGE>
EXHIBIT C
Tooling and Equipment
<TABLE>
<CAPTION>
Production Support Equipment Quantity
<S> <C>
Environmental Chamber 1
Vibration Table 1
Tektronix TDS540A 4 Channel Digitizing Scope, 500MHz, 1GS/s 1
Tektronix TDS644A 4 Channel Digitizing Scope, 500MHz, 2GS/s 1
HP 8116A Pulse/Function Generator, 50MHz 2
Tektronix PS280 DC Power Supply 2
Kikusui Triple Output DC Power Supply 2
Melles Griot 13PEM001 Broadband Power/Energy Meter 1
Reichert Fiber Optics 1185A 150Watt Illuminator 1
FJW Optical System IR Viewer 1
Fluke Multimeters 4
Field Service Laptop 1
Field Service Tool Kits 2
Clamp on Meter 1
Leica Disto Laser Ranger 1
Humidity Sensor 1
RVSI Gray Box Power Supplies 2
EM Test Cables 6 sets
Kepco RBX12-50A 12V, 50A Switching Power Supply 2
Glendale Protective Technologies Laser Protective Eyeware 2
Wire Harness Tester 1
APD Test Fixture 1
SM CCA Test Fixture 1
TOF Test Fixture 1
Test Rail wt Target 1
Test Targets
Device Programmer 1
Data Logger 1
Camera & Video Monitor 1
Pace Soldering System 1
Development Software
Turbo C 2
RD SVGA 1
RD FONTS 1
AutoCad12 2
OrCAD 2
ABEL-6 and PLD Fitters 1
R&D Equipment
Trump D-40D Deicing Truck 1
Fog Tunnel 1
Ice Detection R&D Test Apparatus 1
Wireless Transmitter & Receiver 2
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Production Support Equipment Quantity
<S> <C>
Personal computers and monitors 11 sets
Laser Diodes 8
Optical Components
Electro-Optical Components
Electronic Components
Lenses
Narrow Band IF
Polarizing Beam Splitters
Waveplates
Mirrors
Optical Fiber
Power Supplies
Audio-visual Equipment
Ice Detection Systems (Engineering, Marketing, etc.)
ID-1 6
ID-1H 8
Custom Transport Cases 4
</TABLE>
<PAGE>
=========
EXHIBIT
D
INVENTORY
=========
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
T U
R Y QTY N
E P ON I UNIT TL QTY
PN V DESC E NHA HAND PO NO T COST VENDOR ON HAND CUM %
=================================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
ID-1H ICE
DETECTION
51500 C SYSTEM SA 51500 I 2 25750.00 MAKE 51500.00 51500.00 16%
- ---------------------------------------------------------------------------------------------------------------------------------
EPC34 COMPUTER
486DX4 CPU SINGLE BD PA 51511X 13 IE6210(n EA 1584.00 RADISY 20592.00 72092.00 22%
- ---------------------------------------------------------------------------------------------------------------------------------
APD MODULE 5mm
52784 B [96] option OP 51511X 9 IF0120(n EA 2216.00 ADV PH 19944.00 92036.00 29%
- ---------------------------------------------------------------------------------------------------------------------------------
ELECTRONICS
51511 E MODULE ASSY AY 51501 M 2 EA 8985.66 MAKE 17971.32 110007.32 34%
- ---------------------------------------------------------------------------------------------------------------------------------
51606 A HOUSING LOWER MP 51510 S 5 010085 EA 1500.00 SALMA 7500.00 117507.32 37%
- ---------------------------------------------------------------------------------------------------------------------------------
LCD DISP COLR
SHARP w/blt-in
5LU4E inverter PA 51510 S 8 IF1097 EA 695.00 MARSHA 5560.00 123067.32 38%
- ---------------------------------------------------------------------------------------------------------------------------------
51688mati CCA EM PWR
only B2 SUPPLY AY 51511 E 6 EA 804.03 4824.18 127891.50 40%
- ---------------------------------------------------------------------------------------------------------------------------------
CONV DC/DC 12V
24S12.4XT 40W EC 51688 P 31 051788 EA 146.00 SERVOF 4526.00 132417.50 41%
- ---------------------------------------------------------------------------------------------------------------------------------
PHOTODIODE
C30872E 3MM OP 53688 A 6 022001 EA 745.00 EG&G O 4470.00 136887.50 43%
- ---------------------------------------------------------------------------------------------------------------------------------
HOUSING RECEIVER,
53686 K SHORT MP 51529 R 20 032825 EA 218.00 LOUGHL 4360.00 141247.50 44%
- ---------------------------------------------------------------------------------------------------------------------------------
LASER DIODE
100mw @ 852+/-
SDL-5412-H1 4nm EC 51574 L 5 021409 EA 710.00 SDL 3550.00 144797.50 45%
- ---------------------------------------------------------------------------------------------------------------------------------
FT-800-LMT CABLE FIBER OPTIC OP 51625X 669 IE9090 FT 4.76 THOR LA 3182.62 147980.12 46%
- ---------------------------------------------------------------------------------------------------------------------------------
CONV DC/DC
3005S12 5V/5A `G' case EC 51688 P 26 IF1118 EA 121.30 CDI 3153.80 151133.92 47%
- ---------------------------------------------------------------------------------------------------------------------------------
DRIVE HARD DISK
ST9810AG 2.5in 810MB IDE PA 51511 E 7 IF1459 EA 358.00 VANTAG 2506.00 153639.92 48%
- ---------------------------------------------------------------------------------------------------------------------------------
CABLE POWER
51796 C custom PA 52134 P 1000 050651 FT 2.50 NATION 2500.00 156139.92 49%
- ---------------------------------------------------------------------------------------------------------------------------------
CABLE FIBER
FT-1.0-EMT OPTIC OP 51501 M 869 051945 FT 2.58 3M 2241.38 158381.31 49%
- ---------------------------------------------------------------------------------------------------------------------------------
FILTER BANDPASS
MOUNTED
CWL=854+/-6NM
53712 C BW=40+6NM OP 51647 P 50 051943 EA 42.00 CVI LAS 2100.00 160481.31 50%
- ---------------------------------------------------------------------------------------------------------------------------------
only B CCA MAIN LOGIC AY 51511 E 4 EA 504.91 2019.64 162500.95 51%
- ---------------------------------------------------------------------------------------------------------------------------------
52180 B CAMERA ASSY AY 51510 S 5 EA 394.52 MAKE 1972.60 164473.55 51%
- ---------------------------------------------------------------------------------------------------------------------------------
INSTALLATION KIT
CABLE
52770 A RETRACTOR AY LGA 1 EA 1922.94 MAKE 1922.94 166396.49 52%
- ---------------------------------------------------------------------------------------------------------------------------------
JUNCTION BX
52141 B ASSY AY 51500 I 8 EA 236.31 MAKE 1890.48 168286.97 52%
- ---------------------------------------------------------------------------------------------------------------------------------
HOUSING 5mm
51786-01 L LENS MP 51529 R 40 051935 EA 45.00 SALMA 1800.00 170086.97 53%
- ---------------------------------------------------------------------------------------------------------------------------------
SCANNER
51763 G OPTICAL AY 51641 S 5 IF1393 EA 355.00 ELECTR 1775.00 171861.97 53%
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 1
<PAGE>
PERCENT
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
CAP CHIP .1uF 50V
ECU- cer X7R dialectric
V1H104KBW 1206 EC 51542 S 3900 IE2731 EA 0.45 DIGIKEY 1755.00 173616.97 54%
- ---------------------------------------------------------------------------------------------------------------------------------
only C CCA LASER DR AY 51574 L 8 EA 211.53 1692.24 175309.21 55%
- ---------------------------------------------------------------------------------------------------------------------------------
51605 + HOUSING UPPER MP 51510 S 3 BLNKT EA 550.00 SALMA 1650.00 176959.21 55%
- ---------------------------------------------------------------------------------------------------------------------------------
LCD DISP COLR
SHARP w/INVRTR
LQ6NC02 & CONN KIT PA 51600X 2 IE8553 EA 794.30 MARSHA 1588.60 178547.81 56%
- ---------------------------------------------------------------------------------------------------------------------------------
51515 B LOGAMP ASSY AY 51511 E 5 EA 291.78 MAKE 1458.90 180006.71 56%
- ---------------------------------------------------------------------------------------------------------------------------------
BAS16 DIODE smt EC 51542 S 2990 IF1325 EA 0.48 ALLIED 1435.20 181441.91 56%
- ---------------------------------------------------------------------------------------------------------------------------------
CCBM35A CAMERA CARD PA 52180 C 6 IF1244(n EA 238.30 PHASE1 1429.80 182871.71 57%
- ---------------------------------------------------------------------------------------------------------------------------------
HOUSING
52102 RECEIVER MP 51529 R 4 IF1600 EA 350.00 LOUGHL 1400.00 184271.71 57%
- ---------------------------------------------------------------------------------------------------------------------------------
DRIVE HARD
VIPER170 PCMCIA UPPER PA 51511 E 4 IE7118 EA 350.00 VANTAG 1400.00 185671.71 58%
- ---------------------------------------------------------------------------------------------------------------------------------
51636 B3 CCA MAIN LOGIC AY 51511 E 4 020057- EA 349.90 ACCUFA 1399.60 187071.31 58%
- ---------------------------------------------------------------------------------------------------------------------------------
ECU- CAP CHIP 270pF
V1H271KBM NPO EC 51552 L 4944 IF1323 EA 0.26 DIGIKEY 1285.44 188356.75 59%
- ---------------------------------------------------------------------------------------------------------------------------------
51608 Q HOOD WELDMENT MP 51510 S 6 IF1405(n EA 210.00 PRECISI 1260.00 189616.75 59%
- ---------------------------------------------------------------------------------------------------------------------------------
FOG RECEIVER
52759 C ASSY AY 51510 S 4 EA 311.62 MAKE 1246.48 190863.23 59%
- ---------------------------------------------------------------------------------------------------------------------------------
PWB TIME OF
51639 C1 FLIGHT RANGER PC 51638 T 25 051762 EA 48.95 TEKNICI 1223.75 192086.98 60%
- ---------------------------------------------------------------------------------------------------------------------------------
51542matl CCA SENSOR
only B CTRL AY 51510 S 6 EA 199.04 1194.24 193281.22 60%
- ---------------------------------------------------------------------------------------------------------------------------------
VCR/TV COMBO
VT0954 9in color AC/DC PA 51500 I 4 020013 EA 296.00 WESTVI 1184.00 194465.22 60%
- ---------------------------------------------------------------------------------------------------------------------------------
52117 K ENCL EM MP 51511 E 8 IF1019(n EA 143.00 GENERA 1144.00 195609.22 61%
- ---------------------------------------------------------------------------------------------------------------------------------
HOLDER 5MM
53699 A LENS MP 53700 H 40 051935 EA 28.00 SALMA 1120.00 196729.22 61%
- ---------------------------------------------------------------------------------------------------------------------------------
51545matl CCA MOTOR
only B1 DRIVE AY 51510 S 6 EA 181.18 1087.08 197816.30 62%
- ---------------------------------------------------------------------------------------------------------------------------------
51545 B PWB GALVO DR PC 51544 G 27 021956 EA 38.70 TEKNICI 1044.90 198861.20 62%
- ---------------------------------------------------------------------------------------------------------------------------------
51637 B PWB MAIN PC 51636 M 26 021957 EA 40.00 PROTOT 1040.00 199901.20 62%
- ---------------------------------------------------------------------------------------------------------------------------------
51689 B PWB PS2 (EM) PC 51688 P 26 021957 EA 40.00 PROTOT 1040.00 200941.20 62%
- ---------------------------------------------------------------------------------------------------------------------------------
CONV DC/DC 25V
24S5.7XT 35W EC 51688X 7 IE2995 EA 144.00 SERVOF 1008.00 201949.20 63%
- ---------------------------------------------------------------------------------------------------------------------------------
51551 B PWB BACKPLANE PC 51550 B 26 IF1610 EA 38.55 TEKNICI 1002.30 202951.50 63%
- ---------------------------------------------------------------------------------------------------------------------------------
53711 F APD COUPLING MP 10 051935 EA 100.00 SALMA 1000.00 203951.50 63%
- ---------------------------------------------------------------------------------------------------------------------------------
PWB SENSOR
51543 B CTRL PC 51542 S 26 021956 EA 36.70 TEKNICI 954.20 204905.70 64%
- ---------------------------------------------------------------------------------------------------------------------------------
LASER DIODE
SDL-5422-H1 150mW EC 51574X 1 IF1098 EA 929.00 SDL 929.00 205834.70 64%
- ---------------------------------------------------------------------------------------------------------------------------------
51553 D PWB LASER DR PC 51552 L 24 051715 EA 38.70 TEKNICI 928.80 206763.50 64%
- ---------------------------------------------------------------------------------------------------------------------------------
SG-145 DESICCANT SG-
PROTO 145 PAPER
PACK 12inx12in 5pc NM 19 IF1317 EA 46.85 ROYCO 890.15 207653.65 65%
- ---------------------------------------------------------------------------------------------------------------------------------
51548matl CCA SM PWR
only B SUPPLY AY 51510 S 4 EA 221.04 884.15 208537.81 65%
- ---------------------------------------------------------------------------------------------------------------------------------
RES POT 500
3224J-1-501 11 turn smt EC 51552 L 455 IF1441 EA 1.90 MAST DI 864.50 209402.31 65%
- ---------------------------------------------------------------------------------------------------------------------------------
DRIVE HARD DISK
ST9420AG 2.5in 420 MB IDE PA 51511 X 3 IE8687 EA 285.00 VANTAG 855.00 210257.31 65%
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 2
<PAGE>
PERCENT
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
PRINTED WIRING
BOARD APD
POWER SUPPLY
53695 A FILTER EC 53694 46 051932 EA 18.00 PROTOT 828.00 211085.31 66%
- -----------------------------------------------------------------------------------------------------------------------------------
51547 B PWB MOTOR DR PC 51548 M 26 021956 EA 29.70 772.20 211857.51 66%
- -----------------------------------------------------------------------------------------------------------------------------------
51549 B PWB PS1 (SM) PC 51548 P 26 021956 EA 29.70 TEKNICI 772.20 212629.71 66%
- -----------------------------------------------------------------------------------------------------------------------------------
HK5272R13.6
L12B HEATER UPPER EC 51570 O 28 051926 EA 27.50 MINCO 770.00 213399.71 66%
- -----------------------------------------------------------------------------------------------------------------------------------
POLY POLYCARB
PLATE/RODS PLATE/RODS NM 51510X 0 IE3967 LO 3000.00 COMME 750.00 214149.71 67%
- -----------------------------------------------------------------------------------------------------------------------------------
HIGH VOLTAGE
C05 POWER SUPPLY 53690 A 5 051910 EA 149.00 EMCO 745.00 214894.71 67%
- -----------------------------------------------------------------------------------------------------------------------------------
CABLE SIGNAL
51797 C custom PA 52135 S 274 020222- FT 2.68 NATION 734.32 215629.03 67%
- -----------------------------------------------------------------------------------------------------------------------------------
SCHOTT GLASS
2.5india x 1.52mm
52197 C thk OP 52196 S 16 050558 EA 45.70 SCHOTT 731.20 216360.23 67%
- -----------------------------------------------------------------------------------------------------------------------------------
51611 B PWB LCD PC 51610-1 27 021956 EA 27.00 TEKNICI 729.00 217089.23 68%
- -----------------------------------------------------------------------------------------------------------------------------------
PINHOLE LENS
51788 J FILTER MTG MP 51647 P 16 051935 EA 45.00 SALMA 720.00 217809.23 68%
- -----------------------------------------------------------------------------------------------------------------------------------
CCA SM PWR
51548 B2 SUPPLY AY 51510 S 6 IF1911 EA 119.85 ACCUFA 719.10 218528.33 68%
- -----------------------------------------------------------------------------------------------------------------------------------
CABLE ASSY
51632 B MOTOR AY 51682 G 6 IF1076 EA 119.75 MICROM 718.50 219246.83 68%
- -----------------------------------------------------------------------------------------------------------------------------------
8500-1758 CONT F 20ga EC ASSY 520 050842 EA 1.30 CTI 676.00 219922.83 68%
- -----------------------------------------------------------------------------------------------------------------------------------
CONN PLUG SMA
2037-5100-02 RA RG178 EC 51625X 44 IF1295 EA 15.36 COMPU 675.84 220598.67 69%
- -----------------------------------------------------------------------------------------------------------------------------------
52106 E RING LENS MTG MP 51566 L 25 BLNKT EA 27.00 SALMA 675.00 221273.67 69%
- -----------------------------------------------------------------------------------------------------------------------------------
FERRULE 1mm
52149 F FIBER MP 51501 M 50 051935 EA 13.00 SALMA 650.00 221923.67 69%
- -----------------------------------------------------------------------------------------------------------------------------------
VYS-322 VCR w/RS-232 PA LAB 1 IE6040(n EA 650.00 INTELEM 650.00 222573.67 69%
- -----------------------------------------------------------------------------------------------------------------------------------
FITTING SR
CG814-45 (45deg) NM 51625X 19 IF1653 EA 34.00 COLEMA 646.00 223219.67 69%
- -----------------------------------------------------------------------------------------------------------------------------------
FOAM 24inx48inML
1/8 MDK ADHES
METALIZED
FFAOAA51 MYLAR NM 51742 I 120 050517 SF 5.18 SOUNDC 621.00 223840.67 70%
- -----------------------------------------------------------------------------------------------------------------------------------
only B CCA BACKPLANE AY 51510 S 6 EA 102.44 614.64 224455.31 70%
- -----------------------------------------------------------------------------------------------------------------------------------
AD880JR IC smt EC 51554 S 26 051565 EA 23.12 FUTURE 601.12 225056.43 70%
- -----------------------------------------------------------------------------------------------------------------------------------
51598 M FRAME ISOLATION MP 51570 O 20 051935 EA 30.00 SALMA 600.00 225656.43 70%
- -----------------------------------------------------------------------------------------------------------------------------------
SCHOTT GLASS
COATED ANTI-
52196 D REFL RG-780 AY 51510 S 16 050835 EA 37.50 SPECTR 600.00 226256.43 70%
- -----------------------------------------------------------------------------------------------------------------------------------
52292 C SPACER HEATER MP 51510X 12 010085 EA 50.00 SALMA 600.00 226856.43 71%
- -----------------------------------------------------------------------------------------------------------------------------------
LENS AUTOIRIS
CCLM07XE 7.5mm OP 52180 C 6 IF1244(n EA 100.00 PHASE1 600.00 227456.43 71%
- -----------------------------------------------------------------------------------------------------------------------------------
CCA TIME of
51638 C1 FLIGHT RANGER AY 51511 E 2 EA 292.52 MAKE 585.04 228041.47 71%
- -----------------------------------------------------------------------------------------------------------------------------------
52844 EM HANGER MP 52853 P 10 051944 EA 58.00 SALMA 580.00 228621.47 71%
- -----------------------------------------------------------------------------------------------------------------------------------
IC QUAD OPAMP
OP400GS smt EC 51544 G 101 IF1290 EA 5.70 FUTURE 575.70 229197.17 71%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 3
<PAGE>
PERCENT
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
PLATE LOGAMP
51663 D MTG MP 51511 E 23 011128 EA 25.00 SALMA 575.00 229772.17 71%
- -----------------------------------------------------------------------------------------------------------------------------------
TCM1D2258 CAP CHIP 2.2uF
T 20V tant EC 51542 S 1742 IE3374 EA 0.33 CCE CAL 574.86 230347.03 72%
- -----------------------------------------------------------------------------------------------------------------------------------
QM20540EU- DRIVE HARD DISK
A 2.5in 540MB IDE PA 51511X 2 IE8235 EA 285.00 VANTAG 570.00 230917.03 72%
- -----------------------------------------------------------------------------------------------------------------------------------
BRACKET STRAIN
52751 E RELIEF MP 51641 S 10 010085 EA 55.00 SALMA 550.00 231467.03 72%
- -----------------------------------------------------------------------------------------------------------------------------------
VCR-322 VCR 12V PA 51514X 2 IE7665 EA 275.00 INTELEM 550.00 232017.03 72%
- -----------------------------------------------------------------------------------------------------------------------------------
DRIVE
MMX-PCM-Q- MINIMODULE/
72 PCMCIA DISK PA 51511 E 3 IE7119 EA 182.00 AMPRO 546.00 232563.03 72%
- -----------------------------------------------------------------------------------------------------------------------------------
GROMMET
G-411-4 LOTEMP BI 51511 E 2925 IE8734 EA 0.19 EAR SP 541.13 233104.15 72%
- -----------------------------------------------------------------------------------------------------------------------------------
52151 PWB SHUTTER PC 52150 F 35 IF1349 EA 15.45 TEKNICI 540.75 233644.90 73%
- -----------------------------------------------------------------------------------------------------------------------------------
RELAY SOLID ST
682-0070 DC INPUT EC 52141 J 11 IF1303 EA 48.00 ALLIED 528.00 234172.90 73%
- -----------------------------------------------------------------------------------------------------------------------------------
GRIP CORD
074011057 DELUXE NM 51625X 12 IF1384 EA 43.85 COLEMA 526.20 234699.10 73%
- -----------------------------------------------------------------------------------------------------------------------------------
TCM1C105A CAP CHIP 1uF 16V
T tant EC 51544 G 1868 IE3374 EA 0.28 CCE CAL 523.04 235222.14 73%
- -----------------------------------------------------------------------------------------------------------------------------------
52108 B RING GALVO MTG MP 51682 G 6 BLNKT EA 85.00 SALMA 510.00 235732.14 73%
- -----------------------------------------------------------------------------------------------------------------------------------
CONT COAX socket
O602-47 RG179 EC 52135 S 45 IF0086 EA 11.30 MTR TE 508.50 236240.64 73%
- -----------------------------------------------------------------------------------------------------------------------------------
WP02R12S05 CONV DC/OC
L 5V/.4A EC 51688 P 23 051787 EA 21.83 INSIGHT 502.09 236742.73 74%
- -----------------------------------------------------------------------------------------------------------------------------------
CCA EM PWR
51688 B2 SUPPLY AY 51511 E 3 020057- EA 167.25 ACCUFA 501.75 237244.48 74%
- -----------------------------------------------------------------------------------------------------------------------------------
BEAMSPLITTER
40021-8mm3- CUBE 8mm3-
X exped. del. chg OP 51535X 1 IF0960 LO 500.00 JML OPT 500.00 237744.48 74%
- -----------------------------------------------------------------------------------------------------------------------------------
52118 K COVER EM MP 51511 E 8 IF1019(n EA 60.29 GENERA 482.32 238226.80 74%
- -----------------------------------------------------------------------------------------------------------------------------------
85108RC162
3PW50 CONN 23pin EC 52135X 10 IF1763 EA 47.38 CONN T 473.80 238700.60 74%
- -----------------------------------------------------------------------------------------------------------------------------------
CONDUIT 1/2 BLK
ATX-11 LIQUATITE
BLACK FLEXIBLE 51625X 228 IF1384 FT 2.05 COLEMA 467.40 239168.00 74%
- -----------------------------------------------------------------------------------------------------------------------------------
CABLE 5 cond
52768 A CUSTOM PA 52769 C 307 050645 FT 1.52 NATION 466.64 239634.84 75%
- -----------------------------------------------------------------------------------------------------------------------------------
LEXAN 103 blk GE
LEXAN 103 12inX48in annealed
blk 2.5in x2 NM 51601 H 2 IF1691 SF 233.00 COMME 466.00 240100.64 75%
- -----------------------------------------------------------------------------------------------------------------------------------
1616E012ST MOTOR/GEARBOX
123 / PA 51632 M 6 IE6311 EA 76.45 MICROM 458.70 240559.34 75%
- -----------------------------------------------------------------------------------------------------------------------------------
51544matl CCA GALVO
only B DRIVER AY 51510 S 2 EA 225.29 450.58 241009.92 75%
- -----------------------------------------------------------------------------------------------------------------------------------
CONN SMA JACK
2062-000-00 STR EC 51636 M 73 IF1295 EA 6.16 COMPU 449.68 241459.60 75%
- -----------------------------------------------------------------------------------------------------------------------------------
AD590LH IC TEMP XDUCER EC 51548 P 25 IF1042 EA 17.64 FUTURE 441.00 241900.60 75%
- -----------------------------------------------------------------------------------------------------------------------------------
MIRROR QTZ
POLISHED .250 dia
.050 thk flatness 1
52269 A wave/in OP 52271 M 58 IF0439 EA 7.50 HERAEU 435.00 242335.60 75%
- -----------------------------------------------------------------------------------------------------------------------------------
53691 C APD BRACKET AY 53717 A 12 051971 EA 35.00 SALMA 420.00 242755.60 75%
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Page 4
<PAGE>
EXHIBIT E
Intellectual Property
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------
Document Type Identification Comment
- ----------------------------------------------------------------------------------------------
<S> <C> <C>
R&D Notebooks Quantity = approximately 15-21*
- ----------------------------------------------------------------------------------------------
Various Engineering Files Quantity approximately 200-325*
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
US Patent Patent No. 5,475,370
- ----------------------------------------------------------------------------------------------
US Patent Patent No. 5,532,738
- ----------------------------------------------------------------------------------------------
US Patent Patent No. 5,528,287
- ----------------------------------------------------------------------------------------------
US Patent Patent No. 5,589,822 Change in Small Entity Status was
mailed on November 2, 1998.
- ----------------------------------------------------------------------------------------------
US Patent Patent No. 5,617,076
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
US Patent Application Serial No. 08/712,059 Application was allowed on January
16, 1998. Issue Fee was mailed April
14, 1998.
- ----------------------------------------------------------------------------------------------
US Patent Application Serial No. 08/487,249 Application was allowed on July 6,
1998. Issue fee was mailed October 6,
1998. Letter Regarding Erroneous
Small Entity Status was mailed
October 30, 1998.
- ----------------------------------------------------------------------------------------------
US Patent Application Serial No. 08/677,785 Application was allowed on June 12,
1998. Issue fee was mailed _______.
- ----------------------------------------------------------------------------------------------
US Patent Application Attorney Docket No. Application was filed October 9, 1998.
1905-40
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
European Patent Convention Serial No. 93924961.1 Application was filed April 10, 1995
Application
- ----------------------------------------------------------------------------------------------
European Patent Convention Serial No. 95119992.6 Published.
Application
- ----------------------------------------------------------------------------------------------
European Patent Convention Serial No. 96306480.3 Published.
Application
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
Australian Patent Patent No. 681607
- ----------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------
Canadian Patent Application Serial No. 2,147,462 Application was filed April 20, 1995.
- ----------------------------------------------------------------------------------------------
</TABLE>
*To be specifically determined prior to closing.
<PAGE>
EXHIBIT F
TRANSITION SERVICES AND SUPPLY AGREEMENT
THIS AGREEMENT is made and is effective as of the ______ day of_____________
1998 ("Effective Date") by and between Rosemount Aerospace Inc., the Aircraft
Sensors Division of The BFGoodrich Company, ("BFG"), a Delaware corporation
having its place of business at 14300 Judicial Road, Burnsville, Minnesota,
55306, and Robotic Vision Systems, Inc. ("RVSI"), a Delaware corporation having
its place of business at 5 Shawmut Road, Canton, Massachusetts 02021.
BFG and RVSI agree as follows:
WHEREAS, contemporaneous with the Effective Date, BFG and RVSI, have entered
into an agreement ("Purchase Agreement") under which selected assets of RVSI's
Aircraft Safety Division ("Division") and the associated research, development,
know-how, manufacture, production, sale, and all related rights and intellectual
property to electro-optical ice detection products ("Products" and "Assets" as
defined in the Purchase Agreement) are to be sold by RVSI and purchased by and
transferred to BFG; and
WHEREAS, BFG will use the Assets and develop and manufacture the Products in the
future subject to the terms and conditions of the Purchase Agreement; and
WHEREAS until this Agreement terminates or expires, BFG requires a reliable and
predictable supply of the Products, and the continuation of manufacture,
research, development, customer service, and other activities to enable BFG to
continue to respond to customer, supplier and market needs, and serve customer
and supplier requirements; and
WHEREAS, RVSI will employ personnel, provide facilities and continue the
research, development, manufacture, distribution, supply, and transition and
customer service for the Products for BFG and/or its customers, and take all
other action necessary to assist BFG in assuming and protecting the Assets,
transferring the purchasing, production, marketing, and other processes and
Intellectual Property (as defined in the Purchase Agreement), maintaining
goodwill with such customers, suppliers, potential customers and others in the
market, performing the Contracts ( as defined in the Purchase Agreement), and
providing to BFG consultation, advice, assistance and recommendations with
respect to (i) application, know-how and use of Intellectual Property and
Products by BFG and its customers, and (ii) transfer, start up and production of
Product formulation, and manufacturing processes, and equipment and product
testing, and quality assurance (collectively, "Services").
NOW THEREFORE, the specific terms, promises, covenants and conditions of the
parties are as follows:
ARTICLE I - SCOPE
1.1 RVSI will provide the Services to BFG through the term of this Agreement.
In providing these Services, RVSI and its employees shall act in a
thorough, professional and diligent manner, use their best efforts to
promote the purpose of this Agreement, secure for BFG the full benefit of
the Purchase Agreement, preserve and protect the Assets, comply with all
laws, regulations and contractual obligations, and facilitate the use and
understanding by, and transfer of the Assets to, BFG.
<PAGE>
1.2 RVSI is an independent contractor. The individuals performing the Services
pursuant to this Agreement are employees of RVSI and not of BFG. In no
event will RVSI or its shareholders, officers, agents or employees be
considered employees or agents of BFG, and all claims to the contrary are
and will be denied and waived by RVSI. RVSI is solely responsible for the
payment of all salaries, wages, withholding, FICA and other amounts, and
for the direction and control of its employees, and will defend, indemnify
and hold BFG harmless from any claim or obligation arising therefrom.
ARTICLE II- PRODUCTION AND TRANSITION OBLIGATIONS
2.1 During the term of this Agreement, RVSI shall continue to produce,
research, develop, support, manufacture and supply Products and services
in accordance with past practice as hereinafter defined (unless otherwise
directed by Buyer) including, without limitation, the ID-1 and ID-1H Ice
Detection Systems and their derivatives, contract #DTFA03-97-C-00005 with
DOT/FAA Wiliam J. Hughes Technical Center, Contract #6668 8 with Delta
Airlines, experimental products and other products or concepts previously
researched, under development and/or manufactured by RVSI's Aircraft
Safety Division. As part of the Services, RVSI will provide all necessary
transition assistance to BFG and/or BFG customers, in response to needs
and requests of BFG and/or customers and potential customers for the
Products. During the term of this Agreement, the Products shall be
manufactured and other Services provided at the Division's current
facilities at Nesconset, New York, consisting of leased real estate and
other improvements owned or leased by RVSI (the "Facility").
2.2 Any and all Intellectual Property (as defined in the Purchase Agreement)
resulting from the Services performed under this Agreement shall be the
sole and exclusive property of BFG, subject only to the grant to RVSI of a
nonexclusive license thereto as set forth in Article 1.4 of the Purchase
Agreement.
ARTICLE III - PRICING
BFG will establish and publish all Product pricing, and all purchasing, sales,
marketing, distribution and customer and supplier materials and policies for the
Products. RVSI will cooperate with BFG and follow BFG instructions regarding
such matters. RVSI hereby authorizes and consents to BFG's use and distribution
of Product literature, marketing materials, price lists and other documents
bearing RVSI's name, marks, logos or other identifiers during the term of this
Agreement.
ARTICLE IV - TERM AND TERMINATION
4.1 This Agreement shall commence on the Effective Date and shall continue in
effect for a term expiring no later than six (6) months following the
Effective Date or immediately (i) upon thirty (30) days prior written
notice to RVSI by BFG that BFG deems itself fully capable of manufacturing
and supplying Products and servicing BFG's customers, or (ii) if the
Closing (as defined in the Purchase Agreement) does not occur.
4.2 In the event of a default by a party of a material term under this
Agreement, the non-defaulting party shall provide to the defaulting party
written notice describing the default, and the defaulting party shall have
seven (7) days from the receipt of such notice to cure such default.
Should the defaulting party fail within the seven (7) days to fully cure
such default, then the
<PAGE>
other party may terminate or suspend its obligations under this Agreement,
effective upon written notice to the defaulting party. Termination or
suspension under this Section 4.2 is in addition to all other rights
available to the non-defaulting party at law or equity.
4.3 Termination, suspension or expiration of this Agreement shall not operate
to relieve BFG of the obligation to pay for Services (pursuant to Article
V) compliant with this Agreement prior to sending notice of default.
ARTICLE V - OPERATING SERVICES
During the term of this Agreement, RVSI shall provide the following as part of
the Services contemplated by this Agreement:
5.1 RVSI shall pay employee wages and salary for those Division employees
listed in Appendix A ("Employees"), plus a burden of 30% on such wages and
salaries representing employee benefit costs, to perform manufacturing,
operations, physical distribution, storage, inventory, shipping,
administrative, technical, marketing, sales, research and development,
know-how transfer, clerical and other services necessary to manufacture
Products and provide the Services contemplated by this Agreement, in a
manner consistent with good business practice and the regular good faith
operation of RVSI and the Division during the twelve (12) month period
prior to the Effective Date ("past practice"), and in accordance with BFG
instructions.
5.2 RVSI shall provide and pay for all necessary and ordinary utility expenses
for the operation of the Facility to perform the Services, such as natural
gas, electricity, water, rent, insurance for the Facility, telephone, and
waste disposal, consistent with past practice.
5.3 RVSI shall provide and pay for all necessary office and ordinary
equipment, office supplies, office services and day-to-day "petty cash"
items necessary to provide the Services under this Agreement, consistent
with past practice.
5.4 RVSI shall provide and pay for all necessary and ordinary miscellaneous
operating expenses including, office consumables, supplies, lubricants,
safety equipment, employee work uniforms, equipment maintenance, refuse
disposal, freight charges, reasonable travel expenses, and other operating
expenses, consistent with past practice.
5.5 Based upon information prepared in good faith and supplied by RVSI to BFG,
RVSI's estimated expenses pursuant to Sections 5.1, 5.2, 5.3 and 5.4 for
each two (2) week period during the term of this Agreement are as follows
(collectively, "Expenses")
<TABLE>
<S> <C> <C> <C> <C>
a. Section 5.1 Expenses - $ 29,579
b. Section 5.2 Expenses - $ 3,930
c. Section 5.3 Expenses - $ 2,408
d. Section 5.4 Expenses - $ 10,096
Total estimated two (2) week Expenses - $ 46.013
</TABLE>
5.6 After the end of each two (2) week period during the term of this
Agreement, RVSI will provide BFG with detailed documentation itemizing all
Expenses incurred pursuant to Sections 5.1, 5.2, 5.3 and 5.4 during that
two (2) week period. Upon receipt and approval of that documentation,
<PAGE>
and confirmation of payment of Expenses by RVSI consistent with past
practice, BFG will reimburse the applicable Fund (as defined below)
account for those Expenses properly paid by RVSI. This reimbursement shall
be made by check or wire transfer (at BFG's option) at BFG normal
vendor/supplier payment. The reimbursement shall be the lesser of the
amounts specified in Section 5.5 above, or the actual total amount of
Section 5.1 Expenses (to be paid to RVSI's existing account for payment of
payroll expenses) and Section 5.2, 5.3 and 5.4 Expenses (to be paid to a
new, zero balance account opened by RVSI) for the sole purpose of paying
Expenses incurred by RVSI for providing the Services (the "Fund"). Only
those expenses specifically described in this Article V will be paid by
BFG, and only up to the amount of each particular Expense set forth above
in this Section 5.5 or the corresponding actual amount, if less. In no
event will BFG be responsible, whether by reimbursement or otherwise, for
amounts in excess of the total estimated Expenses for any two (2) week
period, or for the individual limit on each particular category Expenses
as set forth in Section 5.5 without the prior written approval of BFG
authorized employees, expressly waiving the requirements of this Section
5.6. Expenses shall not include, and RVSI shall be solely responsible for,
all employee and retiree benefits, severance, vacation, disability,
withholdings, deductions, worker compensation, medical, dental and other
insurance and other employment related costs and expenses (other than as
subject to reimbursement pursuant to Section 5.1).
5.7 RVSI shall pay for, provide and maintain current insurance coverages on
the building, property, improvements, fixtures and other real property and
assets of RVSI at the Facility (subject to reimbursement of the cost of
such coverages to the extent applicable to the Facility pursuant to
Section 5.2). Further, all repairs and maintenance to such property of
RVSI shall be an expense of RVSI without reimbursement by BFG. RVSI shall,
at its own expense, maintain such fire and other property perils insurance
consistent with past practice to protect its interest in its personal and
real property, and shall name BFG as loss payee to the extent of BFG's
interest in the Assets at the Facility. RVSI waives, releases, defends and
indemnifies BFG from and against all claims for loss or damage to its
personal or real property at the Facility caused by BFG, its employees,
agents, successors, assigns, or related to any environmental
responsibility, or arising out of any event insurable under a standard
form all risk property insurance policy, regardless of the limits of that
policy or whether or not RVSI has maintained that policy (except for
willful damage to or theft of any of the Assets caused by Buyer or its
employees). RVSI shall obtain the proper endorsement to reflect the
foregoing waiver of subrogation and deliver evidence of such waiver to BFG
upon execution of the Purchase Agreement.
5.8 Those Employees who have continuously provided the Services for BFG,
consistent with past practice, at least forty (40) hours per week during
each week of the term of this Agreement, and are employed by RVSI on the
termination of this Agreement described in Section 4.1 (unless termination
is pursuant to Section 4.1 (ii) or Section 4.2), ("employed"), shall be
paid a bonus by RVSI. RVSI shall supply BFG with an itemized statement
indicating the amount of the bonus and to whom the bonus was paid. BFG
shall reimburse RVSI for such bonuses paid to employees up to the amount
set forth in Appendix B, pursuant to Buyer's normal vendor/supplier
payment cycle, provided that proper documentation is supplied.
Prior to termination of this Agreement and upon 30 days written notice to
RVSI, BFG may require that any employee listed on Appendix A no longer
provide the Services. In that case, or if such employee is no longer
employed by RVSI for any reason, such employee's compensation and other
amounts will not be included in the calculation or reimbursement of any of
the expenses of Article V from the date of such notice. If such employee
is employed up to the date
<PAGE>
of notice by BFG and is paid a bonus by RVSI, BFG shall reimburse RVSI up
to the amounts set forth in Appendix B pursuant to this Section 5.8;
provided, however, if (i) BFG has requested such employee no longer
provide the Services for just cause, or (ii) this Agreement has been
terminated pursuant to Section 4.1 (ii) or 4.2, then no reimbursement
shall be paid.
5.9 Except for reimbursement of certain costs of RVSI as specifically provided
by this Article V of this Agreement, BFG shall have no responsibility,
liability or obligation of any kind with respect to RVSI, its employees,
agents, shareholders, successors or assigns, or with respect to the
Facility or other cost or obligation. In no event will BFG be responsible
for any amount in excess of estimated amounts specifically set forth for
each item of Expense in Section 5.5, or Expenses as actually incurred by
RVSI, whichever is less. Any cost, expense, liability, or other amount in
excess thereof, shall be the sole responsibility of RVSI, unless and to
the extent specifically otherwise agreed in writing by Vince LoPresto or
Mark Koosmann of BFG, (subject to change by notice from BFG) specifically
referring to and waiving the terms and limitations of this Agreement. RVSI
shall directly pay such amounts and seek reimbursement from BFG pursuant
to this Article V.
5.10 If Closing does not occur (except if due to default by BFG), RVSI will
reimburse BFG for all amounts paid by BFG under this Agreement, within 14
days.
ARTICLE VI - ORDER ENTRY AND SUPPORT SERVICES
6.1 From and after the Effective Date and until the day of termination as
provided by Article IV, RVSI shall continue to receive orders from
customers. RVSI shall immediately turn such orders to BFG and await BFG
instructions as to credit and other suitability of the customer order.
After the order is confirmed and accepted by BFG, the order shall be
entered as instructed by BFG, provided that all such orders shall be for
the account of and in the name of BFG, and not RVSI. In the performance of
such activities, RVSI, only as an independent contractor of BFG, shall be
acting on behalf of BFG and shall have no authority to bind or commit BFG.
RVSI shall fill all orders accepted by BFG on behalf of BFG and on the
basis of "Sold by BFGoodrich." RVSI shall accommodate such orders and
effect such shipments in a manner consistent with past practice except as
otherwise provided in this Agreement or by BFG. After suspension,
termination or expiration set forth in Article IV, RVSI's limited
authority pursuant to this Section 6.1 shall automatically terminate and
RVSI shall have no authority to act on behalf of BFG in connection with
the purchase of materials or the sale or distribution of Products to
customers of BFG, whether or not the same are former customers of RVSI.
6.2 In addition to Section 6.1, at all times during the terms of this
Agreement, BFG may place or direct Product or service orders from RVSI for
drop shipment to customers (or for inventory shipment to BFG), and RVSI
shall accommodate such orders and effect such shipments in a manner
consistent with past practice as if such order(s) had been made by an RVSI
customer.
6.3 Unless expressly delegated to RVSI in writing by authorized officers of
BFG, BFG shall be responsible for invoicing customers for all such orders
filled by RVSI on behalf of BFG. RVSI shall timely provide BFG with
sufficient and accurate information to enable BFG to prepare and send such
invoices. Any payments for the Products or services received by RVSI shall
not be deposited or held by RVSI, but shall immediately be endorsed "Pay
to the order of Rosemount Aerospace Inc." and forwarded to BFG. RVSI
shall, in addition, maintain all shipping and manufacturing records
sufficient to enable BFG to verify orders, prices and other terms, verify
<PAGE>
receipt by the customer of such orders, and resolve quality, quantity and
other disputes such as may arise. RVSI shall maintain storage,
transportation and shipping relationships, and prices, terms and
conditions thereof, in a manner consistent with past practice, to the
extent practicable and reasonable. If such relationships, terms and
conditions cannot be maintained, RVSI shall so advise and coordinate with
BFG.
6.4 RVSI shall utilize existing Inventory (as defined in the Purchase
Agreement) and production and research and development materials located
at the Facility and to be owned by BFG as of the Closing to manufacture
the Products. As RVSI anticipates additional materials for the Products or
for research and development efforts with respect to the Products
("Materials") will be needed, RVSI shall timely advise BFG. Unless
expressly delegated to RVSI in writing, BFG will order the Materials for
shipment directly to RVSI at the Facility; provided, however: (i) RVSI may
order up to $1,000.00 per purchase order, up to an aggregate of $5,000.00
every two weeks, of Materials without BFG consent; and (ii) materials (not
to exceed $20,000) ordered prior to the Effective Date and not yet paid
for by RVSI, and not reflected in Inventory, shall be considered Materials
for the purpose of the Section 6.4. BFG will be the sole and unencumbered
owner of, and will be responsible for payment for, Materials ordered
pursuant to this Section 6.4. Materials shall only be used for the
production of Products ordered by BFG, for customer orders accepted by
BFG, or for research and development services under this Agreement.
Materials and finished goods inventory shall be maintained at quantity and
quality levels consistent with past practice, unless otherwise directed in
writing by BFG.
6.5 All Products, Materials, Inventory, and other Assets at the Facility will
be kept free of all liens, charges or encumbrances of any kind created or
caused by RVSI. RVSI will execute all documents necessary or requested and
will otherwise cooperate with BFG to establish, confirm and protect BFG's
ownership of the Products and Assets after the Closing.
ARTICLE VII - SPECIFICATIONS
7.1 Materials used and Products supplied by RVSI to BFG or its customers shall
at all times be of good quality, in accordance with BFG and/or customer
quality standards, within applicable shelf life, and manufactured to meet
the customer and RVSI specifications and warranty for the particular
Product.
7.2 During the term of this Agreement, the specifications and/or components of
the Products may be modified, supplemented, changed or revised only upon
written agreement between BFG and RVSI and execution of appropriate
engineering change orders.
ARTICLE VIII - ENVIRONMENTAL, FACILITY AND INDEMNITY
RVSI does not and shall not manufacture any Products using asbestos, PCB's,
radioactive materials, ozone depleting substances or any material that is not
properly registered under the Toxic Substance Control Act or is not otherwise
properly documented or approved by law, rule or regulation. RVSI is the lessee
of the Facility, and RVSI and its employees have and will continue to have full
and exclusive control over the Facility and the operations and activities
thereon. RVSI will defend, indemnify and hold harmless BFG, its employees,
agents, insurers, successors and assigns from and against any and all loss,
claims, damages, fines and expenses (including, without limitation, a reasonable
legal fees) at any time arising from (i) any accident or other occurrence on or
about the Facility, (ii) any environmental
<PAGE>
remediation, liability, payment or action required by applicable laws,
regulations or directives of governmental authorities as a result of the release
at any time of any toxic or hazardous substance or waste, petroleum product or
other regulated substance on or about the Facility (iii) the generation,
handling, transportation or disposal of any hazardous or other materials by
RVSI,, and/or (iv) any governmental investigation or action relating to RVSI,
the Division or the Facility.
ARTICLE IX - GENERAL
9.1 Each party represents and warrants to the other that it has the authority
to enter into and perform all the provisions of this Agreement, and that
the execution and performance of this Agreement by such party will not
constitute a breach of, or conflict with, any other agreement, contract,
undertaking or arrangement, whether written or oral, to which that party
is bound.
9.2 Article headings are for ease of reference only and shall not affect the
substantive interpretation of this Agreement.
9.3 The parties understand and agree that each shall cooperate and assist the
other for all purposes contemplated by this agreement including, without
limitation, manufacturing the Products in accordance with specifications
and customer requirements, supplying and servicing customers,
transitioning production, Intellectual Property and operations to BFG
employees and facilities, and otherwise taking actions to fulfill the
intent of this Agreement.
9.4 If performance of this Agreement is restricted, prevented or interfered
with due to a condition or event which is covered under RVSI's business
interruption insurance, and BFG is an additional insured and receives the
benefit of such coverage pursuant to Section 6.4 of the Purchase
Agreement, RVSI upon giving prompt written notice to BFG, shall
temporarily be excused from providing further Services to the extent of
such restriction, prevention or interference. RVSI shall take all
immediate action to remove the condition or event causing such
non-performance. BFG may terminate or suspend its obligations under this
Agreement or take other action to obtain the Services.
ARTICLE X - MISCELLANEOUS
10.1 Costs and Expenses. Each party hereto shall bear its own costs and
expenses, including attorney's fees, in the preparation of this Agreement
10.2 Notices. All notices required or permitted hereunder shall be in writing
and shall be deemed to be properly given when received either by personal
delivery, next day delivery by a national courier or by delivery certified
U.S. mail, return receipt requested, properly addressed to the party
entitled to receive such notice at the address stated below:
To Buyer: Rosemount Aerospace Inc.
14300 Judicial Road
Burnsville, Minnesota 55306-4898
Attention: Vice President -- Commercial Transport
With a Copy to: BFGoodrich Aerospace
250 N. Cleveland-Massillon Road
Akron, Ohio 44334
Attention: Law Department
<PAGE>
To Seller: Robotic Vision Systems, Inc.
5 Shawmut Road
Canton, Massachusetts 02021
Attention: Chief Financial Officer
With a Copy to: Cooperman Levitt Winikoff Lester & Newman
800 Third Avenue
New York, New York 10022
Attention: Ira Roxland
10.3 Entire Agreement, This Agreement, including the Exhibits hereto, shall
constitute the entire agreement between the parties with respect to the
subject matter hereof and shall supersede all previous negotiations,
commitments and writings.
10.4 Waiver. Discharge, Etc. This Agreement may not be released, discharged or
modified except by an instrument in writing signed by a duly authorized
officer on behalf of each of the parties hereto. The failure of any party
to enforce any provision of this Agreement shall not be a waiver of such
provision or subsequent breach of the same or any other obligation
hereunder.
10.5 Governing Law. This Agreement shall be construed and the rights of the
parties hereunder shall be governed by the laws of the State of Minnesota
and without regard to conflicts of laws. Any unresolved disputes shall be
submitted to the Federal Courts of Minnesota.
10.6 Counterparts. This Agreement may be executed by one or more counterparts,
each of which shall be deemed to be an original, but all of which shall
constitute one Agreement.
10.7 Severability. If any provision of this Agreement is held to be invalid or
unenforceable, for any reason, it shall not invalidate or render
unenforceable or otherwise affect any other provision hereof, and such
invalid or unenforceable provision shall be construed by limiting it so as
to be valid and enforceable to the maximum extent compatible with, and
possible under, applicable law.
10.8 Successors and Assigns. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their permitted successors and
assigns; provided, however, that the Buyer may assign its rights without
the consent of any of the parties hereto to any affiliate of the Buyer,
but no such assignment will relieve Buyer of its obligations under this
Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed as of the date first above written.
ROSEMOUNT AEROSPACE INC. ROBOTIC VISION SYSTEMS, INC.
By: _________________________________ By: ________________________________
Name: _______________________________ Name: ______________________________
Title: ______________________________ Title: _____________________________
<PAGE>
Appendix A
Daniel Schoeffler
John Schaefer
Daniel De Vito
Howard Austerlitz
Murray Lawrence
James Scavo
Ernest Held
Melissa Musimecci
Vincent Cerullo
<PAGE>
Appendix B
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
EMPLOYEE BONUS
- --------------------------------------------------------------------------------
<S> <C>
Daniel Schoeffler 15%
- --------------------------------------------------------------------------------
John Schaefer 15%
- --------------------------------------------------------------------------------
Daniel DeVito i5%
- --------------------------------------------------------------------------------
Vincent Cerullo 15%
- --------------------------------------------------------------------------------
Howard Austerlitz 10%
- --------------------------------------------------------------------------------
Murray Lawrence 10%
- --------------------------------------------------------------------------------
James Scavo 10%
- --------------------------------------------------------------------------------
Ernest Held 5%
- --------------------------------------------------------------------------------
Melissa Musimecci 5%
- --------------------------------------------------------------------------------
</TABLE>
The bonus percentage set forth above is to be applied only to the Employee's
base wages or salary (exclusive of bonues, benefits, vacation, insurance and
workers compensation payments, commissions and other cash and non-cash
compensation) for the period from November 1, 1997 to October 31, 1998.
<PAGE>
EXHIBIT G
Employee Retention
Table G-1, attached, lists the defined "Employees" of Seller as used in this
Exhibit ("Employees"). The Employees are agreed by Buyer and Seller to be
critical to Buyer's receipt of the benefits of this Agreement and the
performance of Seller's obligations hereunder. Therefore, Buyer shall retain the
Balance of the Purchase Price less the amount set forth in Exhibit B ($375,000,
hereinafter, the "Adjusted Balance") to encourage the retention of, or
compensate for the failure to retain, such Employees upon the following terms
and conditions:
1. If all Employees are employed continuously by Seller for at least 120 days
after the Closing Date, Buyer will pay Seller the full amount of the
Adjusted Balance.
2. If none of the Employees are employed continuously by Seller for the 60
day period following the Closing Date, Buyer shall retain the full amount
of the Adjusted Balance, free of any claim or right of Seller or others,
and the Base Purchase Price as adjusted shall become the final Purchase
Price.
3. For those Employees who are employed continuously by Seller for at least
60 days after the Closing Date, Buyer will pay Seller the applicable
percentage of the Adjusted Balance corresponding to such Employee as shown
on Table G-1. The percentage of the Adjusted Balance with respect to those
Employees who have not remained employed by Seller for such period shall
be retained by Buyer, free and clear of all claim of right of Seller or
others.
4. For those Employees who are employed continuously by Seller for at least
120 days after the Closing Date, Buyer will pay Seller the applicable
percentage of the Adjusted Balance corresponding to such Employee as shown
on Table G-1. The percentage of the Adjusted Balance with respect to those
Employees who have not remained employed by Seller for such period shall
be retained by Buyer, free and clear of all claims or right of Seller or
others.
As used herein, "employed" means:
The continuous, exclusive, full time (minimum 40 hours per week)
employment by Seller of Employees to provide to Buyer the Services
described in the Transition Service Agreement and otherwise to
facilitate Seller's performance of this Agreement and Buyer's
acquisition and full use of the Assets and Products;
An Employee who was "employed" as defined above up from the Effective Date to
the time of death prior to the Transfer Date, or 30 days after the date of
Buyer's notice pursuant to the second paragraph of Section 5.8 of the Transition
Services Agreement, shall be considered "employed" by Seller for all payments
pursuant to this Exhibit G;
The employment by Buyer prior to the Transfer Date of an Employee who was
"employed" as defined above up to the time hired by Buyer shall be considered
"employed" by Seller for all payments pursuant to this Exhibit G;
The substitution of another employee or employees of Seller for the listed
Employee, subject to Buyer's discretion, and as approved in writing by Buyer and
as shown by an agreed amendment to Table G-1.
<PAGE>
Table G-l Percentage of the Adjusted Balance Reimbursement Schedule
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Continuous Employment 60 Days or Greater 120 Days or Greater
(% of Adjusted Balance) (% of Adjusted Balance)
- --------------------------------------------------------------------------------
<S> <C> <C>
Daniel Schoeffler 19% 11%
John Schaefer 19% 11%
Daniel DeVito 14% 6%
Vincent Cerullo 14% 6%
- --------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT H
<TABLE>
<CAPTION>
Allocation
<S> <C>
Inventory $ 350,000
----------
Tooling and Test Equipment $ 450,000
----------
Contract and Intellectual Property $1,800,000
----------
Noncompetition Covenant $ 900,000
----------
Goodwill $1,000,000
----------
TOTAL $4,500,000
----------
</TABLE>
The allocation for Tooling and Equipment and for Inventory, shall be adjusted as
provided by Section 7.3(a). If the Purchase Price is further adjusted pursuant
to Exhibits B or G, the allocation to Contract and Intellectual Property,
Non-competition covenant and Goodwill shall be reduced in equal amounts.
<PAGE>
Exhibit 10(c)
LICENSE AGREEMENT
This LICENSE AGREEMENT is made this 4th day of December, 1998, by and
between ROSEMOUNT AEROSPACE INC., a Delaware corporation ("Buyer") and
ROBOTIC VISION SYSTEMS, INC., a Delaware corporation ("Seller").
RECITALS
A. Reference is made to the Asset Purchase Agreement dated as of November 16,
1998 (the "Purchase Agreement") between Buyer and Seller, in which Seller
agrees to sell and transfer to Buyer, and Buyer agrees to purchase and accept
from Seller on the Closing Date, the Intellectual Property (as defined in the
Purchase Agreement).
B. Seller desires to use the Intellectual Property in the Licensed Field of
Use (as hereinafter defined) after the Closing Date.
C. Buyer is willing to grant to Seller a license to use the Intellectual
Property in the Licensed Field of Use after the Closing Date, subject to the
terms and conditions of this License Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
representations herein contained, Buyer and Seller agree as follows:
ARTICLE I
DEFINITIONS
1.1 The following terms, as defined herein, shall have the meanings set
forth below:
a) "Licensed Field of Use" means the manufacture, use, sale and service of
products, components and systems that utilize the Intellectual Property. The
Licensed Field of Use shall be limited to products, components and systems
for:
(u) object identification, measurement, inspection and gauging;
(v) package identification;
(w) material handling;
(x) robotics control;
(y) semiconductor handling and assembly; and
(z) other machine vision systems unrelated to detection of ice or
frozen contaminants.
b) Capitalized terms used but not defined herein shall have the meanings
set forth in the Purchase Agreement.
<PAGE>
ARTICLE II
LICENSE GRANT
2.1 Buyer grants to Seller a non-exclusive, worldwide, royalty-free license
to use the Intellectual Property in the Licensed Field of Use after the
Closing Date, and to perform the Transition Services and Supply Agreement
(the "Transition Agreement").
2.2 The licenses granted in Article 2.1 are personal and nontransferable,
and may not be assigned or sublicensed by Seller.
2.3 During the three (3) year period following the Closing Date, Buyer
shall not grant any licenses to third parties to use the Intellectual
Property in the Licensed Field of Use, provided that during and subsequent to
said period, Buyer reserves the right to use the Intellectual Property in the
Licensed Field of Use for its own use and benefit.
2.4 No right or license of any kind is granted to Seller to use the
Intellectual Property outside of the Licensed Field of Use, and Seller agrees
not to use the Intellectual Property in connection with any business activity
other than the Licensed Field of Use and the Transition Agreement; provided
however, that Seller shall not be in breach of this License Agreement if it
sells a product specifically targeted for use in the Licensed Field of Use
and the purchaser of such product uses the same in an application outside
the Licensed Field of Use.
ARTICLE III
FILINGS, MAINTENANCE AND ENFORCEMENT
3.1 Buyer shall have the sole right to make any and all appropriate
applications or filings in order to register, protect, or otherwise maintain
the Intellectual Property, and shall be the sole owner thereof; Seller agrees
to provide reasonable assistance to Buyer at the written request of Buyer,
and at Buyer's sole expense in support of the same. Buyer shall be under no
obligation to Seller or any other party to take any action to register,
protect or maintain the Intellectual Property.
3.2 Buyer shall have the sole right, at Buyer's sole expense and
discretion, to bring any legal action against persons infringing, using
without Buyer's authorization, or otherwise violating the Intellectual
Property. Seller shall promptly advise Buyer in writing of any actual or
suspected infringement, use without authorization, or violation of the
Intellectual Property (including but not limited to such activity in the
License Field of Use) and shall cooperate with Buyer in any and all actions
relating thereto.
3.3 The provisions of this Article III have no effect on Seller's
obligations to take actions with respect to its employees is set forth in
Article 3.9 of the Purchase Agreement, or to continue to prosecute its claims
and defend against cross claims and counterclaims as set forth in Article
3.13 and Exhibit 3.13 of the Purchase Agreement.
2
<PAGE>
ARTICLE IV
CONFIDENTIAL INFORMATION
4.1 With respect to the Intellectual Property licensed to Seller under
this Agreement, Seller agrees to take all reasonable steps, in accordance
with Seller's customary procedures for protecting its own confidential and
proprietary information, to safeguard such Intellectual Property from
unauthorized use and disclosure. Further, Seller shall hold, and shall cause
its officers, directors, employees and agents to hold, in confidence, the
Intellectual Property, except to the extent such Intellectual Property is
shown by Seller: (a) to be in the public domain through no fault of the
Seller; or (b) to have been lawfully acquired from a third party on an
unrestricted basis; or (c) to be subject to disclosure in response to
judicial proceedings, in which case Seller shall provide Buyer advance
written notice thereof and assist Buyer in opposing such disclosure; provided
that the Seller may disclose the Intellectual Property to a third party so
long as such third party agrees in writing to hold such Intellectual Property
in confidence and not use such Intellectual Property for any purpose other
than the Licensed Field of Use; provided further that if Seller or such third
party breaches the confidentiality obligations of this Article IV, then
Seller shall so inform the Buyer, and Seller shall take all reasonable steps
at the request of the Buyer to remedy such breach.
4.2 The provisions of Article IV shall survive any termination of this
Agreement.
ARTICLE V
WARRANTIES AND LIMITATION OF LIABILITY
5.1 ALL WARRANTIES, EXPRESSED OR IMPLIED, ARE HEREBY DISCLAIMED BY BUYER,
INCLUDING ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.2 BUYER SHALL NOT BE LIABLE TO SELLER FOR ANY LOSS, EXPENSE, OR DAMAGE
ARISING OUT OF OR RESULTING FROM SELLER'S USE OF THE INTELLECTUAL PROPERTY.
IN NO EVENT SHALL BUYER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR
CONSEQUENTIAL LOSS OR DAMAGES.
5.3 Buyer makes no warranties as to the validity or enforceability of the
Intellectual Property or that Seller's use of the Intellectual Property will
be free from infringement of any intellectual property rights of a third
party. Buyer shall not, under any circumstances, indemnify or otherwise be
liable to Seller for any damages or claims arising out of or in connection
with the Intellectual Property.
3
<PAGE>
ARTICLE VI
TERM AND TERMINATION
6.1 Except as set forth in Article 6.2, this License Agreement shall
continue in effect until each type of intellectual property licensed
hereunder expires, irreversibly lapses, or is otherwise available for use by
third parties on an unrestricted basis.
6.2 Any unauthorized use or disclosure of the Intellectual Property by
Seller (including but not limited to any use of the Intellectual Property in
fields outside of the Licensed Field of Use (except as set forth in
Article 2.4) and any failure to abide by the Confidentiality provisions of
Article IV) shall be a material breach of this Agreement. Buyer shall give
Seller written notice of any such material breach; if such breach is not
cured within fifteen (15) business days of receipt of such notice, then Buyer
may immediately terminate this License Agreement. On such termination, Seller
shall cease all uses of the Intellectual Property.
6.3 Buyer shall be entitled to immediate injunctive relief if Seller
commits any material breach of this Agreement.
6.4 Termination of this Agreement shall be without prejudice to Buyer's
right to recover damages resulting from such breach.
ARTICLE VII
MISCELLANEOUS
7.1 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed to be properly given when received either by
personal delivery, next day delivery by a national courier or by delivery
certified U.S. mail, return receipt requested, properly addressed to the
party entitled to receive such notice at the address stated below:
To Buyer: Rosemount Aerospace Inc.
14300 Judicial Road
Burnsville, Minnesota 55306-48908
Attention: Vice President -- Commercial Transport
With a Copy to: BFGoodrich Aerospace
250 N. Cleveland-Massillon Road
Akron, OH 44334
Attention: Law Department
To Seller: Robotic Vision Systems, Inc.
5 Shawmut Road
Canton, Massachusetts 02021
Attention: Chief Financial Officer
4
<PAGE>
With a Copy to: Cooperman Levitt Winikoff Lester & Newman
800 Third Avenue
New York, New York 10022
Attention: Ira Roxland, Esq.
7.2 ENTIRE AGREEMENT. This Agreement shall constitute the entire
agreement between the parties with respect to the subject matter hereof and
shall supersede all previous negotiations, commitments and writings.
7.3 WAIVER, DISCHARGE, ETC. This Agreement may not be released,
discharged or modified except by an instrument in writing signed by a duly
authorized officer on behalf of each of the parties hereto. The failure of
Buyer to enforce any provision of this Agreement shall not be a waiver of
such provision or subsequent breach of the same or any other obligation
hereunder.
7.4 GOVERNING LAW. This Agreement shall be construed and the rights of
the parties hereunder shall be governed by the laws of the State of Minnesota
and without regard to conflicts of laws. Any unresolved disputes shall be
submitted to the Federal Courts of Minnesota.
7.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one Agreement.
7.6 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable, for any reason, it shall not invalidate or render
unenforceable or otherwise affect any other provision hereof, and such
invalid or unenforceable provision shall be construed by limiting it so as to
be valid and enforceable to the maximum extent compatible with, and possible
under, applicable law.
7.7 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the parties hereto and their permitted successors and
assigns; provided, however, that the Buyer may assign its rights without the
consent of any of the parties hereto to any affiliate of the Buyer, but no
such assignment will relieve Buyer of its obligations under this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed as of the date first above written.
ROSEMOUNT AEROSPACE INC. ROBOTIC VISION SYSTEMS, INC.
By: /s/ John Grisik By: /s/ Pat V. Costa
---------------------- -------------------------
Name: John Grisik Name: Pat V. Costa
---------------------- -------------------------
Title: Chairman Title: Chairman, President and
---------------------- -------------------------
Chief Executive Officer
5
<PAGE>
Exhibit 21
SUBSIDIARIES OF COMPANY
<TABLE>
<CAPTION>
STATE OR
JURISDICTION
NAME OF SUBSIDIARY OF INCORPORATION
- ------------------ ----------------
<S> <C>
Acuity Imaging LLC Delaware
Northeast Robotics LLC Delaware
RVSI Europe Limited United Kingdom
RVSI Europe (North) Limited United Kingdom
RVSI Europe (South) S.A. France
RVSI Europe Central GmbH Germany
CiMatrix LLC Delaware
Systemation Engineered Products, Inc. Wisconsin
Vanguard Automation, Inc. Delaware
</TABLE>
<PAGE>
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Registration Statement Nos.
2-82662,2-85336, 2-94926, 33-12280, 33-16088, 33-28764, 33-45474, 33-63289,
33-64039, 33-70960, 333-14529, 333-03139, 333-26149, 333-44495, and 333-53175
each on Form S-8 and Registration Statement Nos. 33-62715, 333-05971,
3330-20209, 333-44493 and 333-59005 each on Form S-3 of our report dated
January 18, 1999, appearing in this Annual Report on Form 10-K of Robotic
Vision Systems, Inc. for the fiscal year ended September 30, 1998.
Boston, Massachusetts
January 18, 1999
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> SEP-30-1998
<PERIOD-START> OCT-01-1997
<PERIOD-END> SEP-30-1998
<CASH> 2,421
<SECURITIES> 0
<RECEIVABLES> 33,367
<ALLOWANCES> (1,000)
<INVENTORY> 36,213
<CURRENT-ASSETS> 72,227
<PP&E> 34,151
<DEPRECIATION> (16,560)
<TOTAL-ASSETS> 121,571
<CURRENT-LIABILITIES> 81,715
<BONDS> 0
0
0
<COMMON> 249
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 121,571
<SALES> 169,007
<TOTAL-REVENUES> 169,007
<CGS> 96,443
<TOTAL-COSTS> 96,443
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,363
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