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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 7, 1998
HELIX TECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-6866 04-2423640
(Commission File No.) (I.R.S. Employer Identification No.)
Mansfield Corporate Center
Nine Hampshire Street
Mansfield, Massachusetts 02048-9171
(Address of Principal Executive Offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (508) 337-5111
N.A.
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On April 16, 1998, Helix Technology Corporation (the "Company"), a Delaware
Corporation, signed an Agreement and Plan of Merger (the "Agreement") to acquire
all of the issued and outstanding shares of capital stock of Granville-Phillips
Company ("Granville-Phillips"), a Washington Corporation, pursuant to a merger
of Helix Acquisition Corporation, a Delaware corporation and wholly owned
subsidiary of the Company, with and into Granville-Phillips (the "Merger"), with
Granville-Phillips becoming the surviving corporation and wholly owned
subsidiary of the Company. The Merger was completed on May 7, 1998.
Granville-Phillips is a Boulder, Colorado based company recognized as a world
class leader in the development and manufacture of instrumentation for vacuum
measurement and control. Granville-Phillips' products are used principally in
semiconductor, flat panel display, and disk drive manufacturing processes.
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS (Continued).
The terms of the Agreement, including the merger ratio, were the results of
arm's length negotiations between Helix and Granville-Phillips. Helix issued
2,382,905 shares of common stock, par value $1.00 per share, to the stockholders
of Granville-Phillips. The transaction will be accounted for as a pooling of
interests.
Under the terms of the Agreement, an aggregate of 119,145 of the Company's
shares of common stock will be held in escrow with the purpose of indemnifying
the Company against certain liabilities of Granville-Phillips and its
stockholders. The escrow agreement expires on the earlier of (i) May 7, 1999 or
(ii) completion of the next audited financial statements of the Company.
The preceding discussion is only a summary and is qualified in its entirety, by
reference to the agreements, copies of which are included as Exhibits 2.1, 2.2
and 2.3 to this Current Report on Form 8-K and are filed herewith.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED
Pursuant to the instructions to Item 7 of Form 8-K, the financial
information required by Item 7(a) will be filed by amendment within 60
days of the date of this filing.
(b) PRO FORMA FINANCIAL INFORMATION
Pursuant to the instructions to Item 7 of Form 8-K, the financial
information required by Item 7(b) will be filed by amendment within 60
days of the date of this filing.
Page 2
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(c) EXHIBITS
2.1 Agreement and Plan of Merger dated as of April 16, 1998 among
Helix Technology Corporation, Helix Acquisition Corporation,
Granville-Phillips Company and Certain Principal Stockholders of
Granville-Phillips Company Named Herein. Filed herewith.
Pursuant to Item 602(b)(2) of Regulation S-K, the schedules and
certain exhibits to the Agreement and Plan of Merger are
omitted. A list of such schedules and exhibits appear in the
table of contents to the Agreement and Plan of Merger. The
Registrant hereby undertakes to furnish supplementally a copy of
any omitted schedule or exhibit to the Commission upon request.
2.2 Registration Rights Agreement dated May 7, 1998. Filed herewith.
2.3 Escrow Agreement dated May 7, 1998. Filed herewith.
3.1 Restated Certificate of Incorporation dated February 15, 1980,
as amended on May 5, 1987; May 18, 1988; April 20, 1995 and
April 30, 1998. Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HELIX TECHNOLOGY CORPORATION
May 15, 1998 BY: /s/Michael El-Hillow
- -------------- ----------------------------
Date Michael El-Hillow
Senior Vice President and
Chief Financial Officer
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AGREEMENT AND PLAN OF MERGER
AMONG
HELIX TECHNOLOGY CORPORATION
HELIX ACQUISITION CORPORATION,
GRANVILLE - PHILLIPS COMPANY
and
CERTAIN PRINCIPAL STOCKHOLDERS
OF GRANVILLE - PHILLIPS COMPANY
NAMED HEREIN
-----------------------------
Dated as of April 16, 1998
-----------------------------
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TABLE OF CONTENTS
Page
SECTION 1 - THE MERGER...................................................... 1
1.1 The Merger.............................................. 1
1.2 Effective Time.......................................... 1
1.3 Effects of the Merger................................... 1
1.4 Articles of Incorporation and Bylaws.................... 2
1.5 Directors and Officers.................................. 2
1.6 Conversion of Stock..................................... 2
1.7 Dissenting Shares....................................... 4
1.8 Exchange of Certificates................................ 4
1.9 No Fractional Shares.................................... 5
1.10 Legends................................................. 5
1.11 Escrow of Shares........................................ 5
1.12 No Liability............................................ 6
1.13 Closing of GPC Transfer Books........................... 6
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF GPC........................... 6
2.1 Organization and Qualification.......................... 6
2.2 Authority to Execute and Perform Agreements............. 6
2.3 Capitalization and Title to Shares...................... 7
2.4 Subsidiaries and Other Affiliates....................... 7
2.5 Financial Statements.................................... 7
2.6 Absence of Undisclosed Liabilities...................... 8
2.7 No Material Adverse Change.............................. 8
2.8 Tax Matters............................................. 9
2.9 Compliance with Laws.................................... 10
2.10 No Breach............................................... 10
2.11 Actions and Proceedings................................. 11
2.12 Contracts and Other Agreements.......................... 11
2.13 Bank Accounts and Powers of Attorney.................... 12
2.14 Properties.............................................. 13
2.15 Intangible Property..................................... 13
2.16 Real Property........................................... 13
2.17 Customers............................................... 15
2.18 Accounts Receivable..................................... 15
2.19 Inventory............................................... 15
2.20 Employee Benefit Plans.................................. 15
2.21 Employee Relations...................................... 16
2.22 Employment Matters...................................... 16
2.23 Employee Conflicts...................................... 16
2.24 Transactions with Management............................ 17
2.25 Insurance............................................... 17
2.26 Brokerage............................................... 17
2.27 Environmental Matters................................... 17
2.28 Year 2000 Compliance.................................... 18
2.29 Disclosure.............................................. 18
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SECTION 3 - REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL STOCKHOLDERS.... 19
3.1 Authority to Execute and Perform Agreements............. 19
3.2 No Breach............................................... 19
3.3 Title to Shares......................................... 19
3.4 Accuracy of GPC Representations and Warranties.......... 19
SECTION 4 - REPRESENTATIONS AND WARRANTIES OF
HELIX AND ACQUISITION....................................................... 20
4.1 Organization............................................ 20
4.2 Authority to Execute and Perform Agreement.............. 20
4.3 Capitalization.......................................... 20
4.4 SEC Reports............................................. 20
4.5 Financial Statements.................................... 21
4.6 No Material Adverse Change.............................. 21
4.7 Actions and Proceedings................................. 21
4.8 No Breach............................................... 21
SECTION 5 - COVENANTS AND AGREEMENTS........................................ 22
5.1 Conduct of Business..................................... 22
5.2 Corporate Examinations and Investigations............... 23
5.3 Taxes................................................... 24
5.4 Expenses................................................ 24
5.5 Authorization from Others............................... 24
5.6 Consummation of Agreement............................... 24
5.7 Public Announcements and Confidentiality................ 24
5.8 No Solicitation......................................... 25
5.9 Filings Under HSR Act................................... 25
5.10 Stockholder Letter...................................... 25
5.11 Voting of GPC Stock..................................... 25
5.12 Noncompetition Agreements............................... 25
5.13 Patent and Confidential Information Agreements.......... 26
5.14 Incentive Plans Termination and Release................. 26
5.15 Helix SEC Filings....................................... 26
5.16 Publishing of Combined Financial Results................ 26
5.17 Form S-3 Registration................................... 26
5.18 Disclosure Statements................................... 26
5.19 Further Assurances...................................... 27
SECTION 6 - CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF EACH PARTY TO CONSUMMATE THE MERGER...................................... 27
6.1 Approvals............................................... 27
6.2 HSR Act................................................. 27
6.3 Absence of Order........................................ 27
SECTION 7 - CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
HELIX AND ACQUISITION TO CONSUMMATE THE MERGER.............................. 27
7.1 Representations, Warranties and Covenants............... 27
7.2 Opinion of Counsel to GPC............................... 27
7.3 Merger Documents........................................ 27
7.4 Dissenting Shares....................................... 27
7.5 Tax Opinion............................................. 28
7.6 Pooling of Interest Opinions............................ 28
7.7 Title Insurance......................................... 28
7.8 Escrow Agreement........................................ 28
7.9 Stockholder Letters..................................... 28
7.10 Noncompetition Agreements............................... 28
7.11 Patent and Confidential Information Agreements.......... 28
7.12 Incentive Plans Termination and Release................. 28
7.13 Officer's Certificate................................... 29
7.14 Secretary's Certificate................................. 29
7.15 Additional Items........................................ 29
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SECTION 8 - CONDITIONS PRECEDENT TO THE OBLIGATION OF THE
GPC AND THE PRINCIPAL STOCKHOLDERS TO CONSUMMATE THE MERGER................. 29
8.1 Representations, Warranties and Covenants............... 29
8.2 Officer's Certificate................................... 29
8.3 Opinion of Counsel to Helix............................. 29
8.4 Tax Opinion............................................. 29
8.5 Registration Rights Agreement........................... 30
SECTION 9 - TERMINATION, AMENDMENT AND WAIVER............................... 30
9.1 Termination............................................. 30
9.2 Effect of Termination................................... 31
9.3 Amendment............................................... 31
9.4 Waiver.................................................. 31
SECTION 10 - INDEMNIFICATION................................................ 31
10.1 Survival................................................ 31
10.2 Obligation of GPC and the Stockholders to Indemnify..... 32
10.3 Obligation of Helix and Acquisition to Indemnify........ 32
10.4 Limitations on Indemnification.......................... 32
10.5 Notice and Defense of Claims............................ 33
SECTION 11 - MISCELLANEOUS.................................................. 34
11.1 Notices................................................. 34
11.2 Entire Agreement........................................ 35
11.3 Governing Law........................................... 35
11.4 Binding Effect; No Assignment........................... 35
11.5 Variations in Pronouns.................................. 35
11.6 Counterparts............................................ 35
11.7 Disclosure Schedules.................................... 35
11.8 Arbitration............................................. 35
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ANNEX
Annex A -- Amended and Restated Articles of Incorporation of
Granville-Phillips
Company
EXHIBITS
Exhibit A -- Form of Escrow Agreement
Exhibit B -- Form of Stockholder Letter
Exhibit C -- Form of Stockholder Voting Agreement
Exhibit D -- Form of Irrevocable Proxy
Exhibit E-1 -- Form of Non-Disclosure, Non-Competition and
Developments Agreement
Exhibit E2 -- Form of Non-Disclosure, Non-Competition and
Developments Agreement
Exhibit F -- Form of Patent and Confidential Information Agreement
Exhibit G -- Form of Registration Rights Agreement
SCHEDULES
Schedule 1.6(d) -- Shares Deemed Outstanding
Schedule 2.3 -- Capitalization and Title to Shares
Schedule 2.9 -- Compliance with Laws
Schedule 2.12 -- Contracts and Other Agreements
Schedule 2.13 -- Bank Accounts and Powers of Attorney
Schedule 2.16 -- Real Property
Schedule 2.17 -- Customers
Schedule 2.20 -- Employee Benefit Plans
Schedule 2.21 -- Employee Relations
Schedule 2.25 -- Insurance
Schedule 5.11 -- Individuals Executing Stockholder Voting Agreements
and Irrevocable Proxies
Schedule 5.12 -- Stockholders Executing Stockholder Noncompetition
Agreements and Employee Noncompetition Agreements
Schedule 5.13 -- Patent and Confidential Information Agreements
<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of April 16, 1998 (this
"Agreement") is among Helix Technology Corporation ("Helix"), a Delaware
corporation; Helix Acquisition Corporation ("Acquisition"), a Washington
corporation and wholly-owned subsidiary of Helix; Granville-Phillips Company
("GPC"), a Washington corporation; and the stockholders of GPC identified on the
signature pages hereto (the "Principal Stockholders"). The parties wish to
effect the acquisition of GPC by Helix through a merger of Acquisition into GPC
on the terms and conditions hereof. This Agreement is intended to be a "plan of
reorganization" within the meaning of ss.368(a) of the Internal Revenue Code of
1986, as amended (the "Code").
Accordingly, in consideration of the mutual representations, warranties
and covenants contained herein, the parties hereto agree as follows:
SECTION 1 - THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions hereof,
and in accordance with the Washington Business Corporation Act of the State of
Washington (the "WBCA"), Acquisition shall be merged with and into GPC (the
"Merger"). The Merger shall occur at the Effective Time (as defined herein).
Following the Merger, GPC shall continue as the surviving corporation (the
"Surviving Corporation") and be a wholly-owned subsidiary of Helix, and the
separate corporate existence of Acquisition shall cease.
1.2 Effective Time. As soon as practicable after satisfaction or waiver
of all conditions to the Merger, the parties shall cause a certificate of merger
(the "Merger Certificate") to be filed and recorded in Washington in accordance
with Section 23B.11.050 of the WBCA and shall take all such further actions as
may be required by law to make the Merger effective. The Merger shall be
effective at such time as the Merger Certificate is filed with the Secretary of
State of Washington in accordance with the WBCA or at such later time as is
specified in the Merger Certificate (the "Effective Time"). Immediately prior to
the filing of the Merger Certificate, a closing (the "Closing") will be held at
the offices of Palmer & Dodge LLP, One Beacon Street, Boston, MA 02108, (or such
other place as the parties may agree) for the purpose of confirming satisfaction
or waiver of all conditions to the Merger. The Closing shall take place within
three business days after the last occurrence of: (a) the day the Merger is
approved by the stockholders of GPC; or (b) the date of expiration or
termination of any waiting period or extension thereof applicable to the Merger
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"); or such other date as the parties may agree. The date on which the
Closing occurs is referred to herein as the "Closing Date".
1.3 Effects of the Merger. The Merger shall have the effects set forth
in Section 23B.11.060 of the WBCA.
1.4 Articles of Incorporation and Bylaws. The Articles of Incorporation
of GPC in effect immediately prior to the Effective Time shall be amended and
restated as set forth in Annex A attached hereto immediately after the Effective
Time and the Bylaws of Acquisition in effect immediately prior to the Effective
Time shall be the Bylaws of the Surviving Corporation immediately after the
Effective Time.
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1.5 Directors and Officers. The directors and officers of Acquisition
immediately prior to the Effective Time shall be the directors and officers of
the Surviving Corporation immediately after the Effective Time, each to hold
office in accordance with the Certificate of Incorporation and Bylaws of the
Surviving Corporation. The Surviving Corporation may designate such other
officers as it determines.
1.6 Conversion of Stock.
(a) At the Effective Time, by virtue of the Merger and without
any action on the part of Helix, Acquisition or GPC:
(i) All shares of GPC Series A Common Stock, no par
value, and Series B Common Stock, no par value (collectively, the "GPC Stock")
outstanding or deemed outstanding immediately prior to the Effective Time, other
than (A) shares held by GPC as treasury stock and (B) Dissenting Shares (as
defined in Section 1.7), shall be converted into and become the right to
receive, in the aggregate, that number of shares (rounded down and subject to
the payment of cash for fractional shares as provided in Section 1.9) of common
stock, $1.00 par value, of Helix ("Helix Common Stock") determined pursuant to
Section 1.6(b) (such shares of Helix Common Stock are referred to hereinafter as
the "Merger Consideration"). The Merger Consideration shall be reduced by the
consideration that would otherwise be allocable pursuant to Section 1.6(c) to
all Dissenting Shares if the holders thereof had not properly exercised rights
under Chapter 23B.13 of the WBCA. Shares of GPC Stock deemed outstanding shall
include all shares of GPC Stock issuable pursuant to any options, warrants,
rights, calls, convertible securities, commitments, agreements or other
arrangements of any character to which GPC is a party or by which it is bound.
(ii) All shares of GPC Stock held at the Effective
Time by GPC as treasury stock shall be canceled and no payment shall be made
with respect thereto.
(iii) All Dissenting Shares shall be handled in
accordance with Section 1.7.
(iv) Each share of common stock of Acquisition,
$.01 par value, outstanding immediately prior to the Effective Time shall be
converted into and become one validly issued, fully paid and nonassessable share
of common stock, $.01 par value, of the Surviving Corporation.
(b) The number of shares of Helix Common Stock constituting
the Merger Consideration shall be two million five hundred thousand (2,500,000)
shares, less the Closing Balance Sheet Adjustment (referred to below) and less
the number of shares of Helix Common Stock resulting from the Incentive Plan
Adjustment (referred to below):
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(i) The amount, if any, by which the net worth of GPC
immediately prior to the Effective Time is less than $10,648,547 shall
constitute an adjustment to the Merger Consideration, such adjustment to be
effected by withdrawing from the escrow established under Section 1.11 that
number of shares of Helix Common Stock (valued at $20.00 per share, the "Market
Value") equal in value to such difference (the "Closing Balance Sheet
Adjustment"). For purposes of this determination, the net worth of GPC
immediately prior to the Effective Time shall mean the total assets of GPC less
its total liabilities (including without limitation the accrual of all
distributions on or before the Closing for tax payments (including all taxes due
on the earnings realized through the Closing) and all expenses of the
transaction and any severance or change of control payments payable as a result
of the Merger) as shown on a balance sheet of GPC as of such time (the "Closing
Balance Sheet") prepared in accordance with GAAP applied in a consistent manner
and in the ordinary course of business as per the prior GPC Financial
Statements, with no acceleration of revenue or delay of expenses, as such terms
are defined in Section 2.5. GPC shall prepare and furnish the Closing Balance
Sheet to Helix within five business days after the Closing Date, which shall
become final and binding 20 business days after receipt by Helix unless Helix
delivers its written objection to the Shareholder Representative under the
Escrow Agreement, in the form attached hereto as Exhibit A, within such period.
Helix and the Shareholder Representative shall attempt in good faith to resolve
any such objection. Any objection not so resolved within ten days shall be
resolved by a nationally recognized firm of independent public accountants
(which has not been engaged to serve Helix or GPC within the prior year)
selected by Helix in good faith. The fees and expenses of such firm shall be
paid by Helix, and the determination of such firm shall be final and binding.
(ii) Immediately following the execution of this
Agreement, Helix and GPC shall retain a third party independent compensation
consultant mutually acceptable to them to calculate the equivalent value,
expressed in shares of GPC vested stock, of the outstanding shares of unvested
GPC Stock issued under GPC's Management and Key Employee Incentive Plans (the
"Incentive Plans"). The consultant shall provide Helix and GPC with its
calculation as soon as reasonably practicable. In determining the number of
vested shares of equivalent value, the consultant shall consider among other
relevant value criteria: the risk associated with not achieving the hurdles
established for each Incentive Plan and the extent to which such hurdles for
1998 and 1999 have already been met; the probability of the participants in the
Incentive Plans leaving GPC's employment prior to their shares vesting; the
value of earlier vesting; and the fact that the shares of different participants
would become vested at different times. Subject to the consent of each
participant in the Incentive Plans, the exchange of all unvested shares under
his or her Incentive Plan for vested shares of equivalent value shall be deemed
to occur immediately prior to the Effective Time at which time his or her
Incentive Plan shall terminate. The difference between the aggregate number of
unvested shares exchanged and the aggregate number of vested shares received
shall be referred to herein as the "Incentive Plan Adjustment."
(c) The Merger Consideration shall be allocated among the
holders of shares of GPC Stock outstanding immediately prior to the Effective
Time by multiplying the number of shares of GPC Stock held by each such holder
by the Conversion Ratio.
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(d) The "Conversion Ratio" shall be determined in two steps by
first determining the quotient obtained by dividing (i) the two million five
hundred thousand (2,500,000) shares of Helix Common Stock less the Closing
Balance Sheet Adjustment by (ii) the number of shares of GPC Stock outstanding
and deemed outstanding (listed on Schedule 1.6(d)), including all shares of GPC
Stock outstanding under the Incentive Plans prior to the Incentive Plan
Adjustment. This quotient shall then be multiplied times the Incentive Plan
Adjustment in order to determine the number of shares of Helix Common Stock to
be subtracted from said Two Million Five Hundred Thousand (2,500,000) shares of
Helix Common Stock in the calculation of the "Conversion Ratio". The "Conversion
Ratio" shall, therefore, mean the quotient obtained by dividing (i) the two
million five hundred thousand (2,500,000) shares of Helix Common Stock less both
the Closing Balance Sheet Adjustment and less the number of shares of Helix
Common Stock resulting from the Incentive Plan Adjustment calculated as provided
in the preceding two sentences by (ii) the number of shares of GPC Stock
outstanding and deemed outstanding (listed on Schedule 1.6(d)), less the
Incentive Plan Adjustment.
1.7 Dissenting Shares.
(a) Shares of capital stock of GPC held by a stockholder who
has properly exercised dissenters' rights with respect thereto in accordance
with Chapter 23B.13 of the WBCA (collectively, the "Dissenting Shares") shall
not be converted into Merger Consideration. From and after the Effective Time, a
stockholder who has properly exercised such dissenters' rights shall no longer
retain any rights of a stockholder of GPC or the Surviving Corporation, except
those provided under the WBCA.
(b) GPC (i) shall give Helix prompt notice of any written
demands under Chapter 23B.13 of the WBCA with respect to any shares of capital
stock of GPC, any withdrawal of any such demands and any other instruments
served pursuant to the WBCA and received by GPC and (ii) hereby grants to Helix
the right to participate in all negotiations and proceedings with respect to any
demands under Chapter 23B.13 with respect to any shares of capital stock of GPC.
GPC shall cooperate with Helix concerning, and shall not, except with the prior
written consent of Helix, voluntarily make any payment with respect to, or offer
to settle or settle, any such demands.
1.8 Exchange of Certificates. Helix shall authorize one or more persons
to act as Exchange Agent hereunder (the "Exchange Agent"). As soon as
practicable after the Effective Time, Helix shall cause the Exchange Agent to
mail to all former holders of record of GPC Stock instructions for surrendering
their certificates representing GPC Stock in exchange for a certificate or
certificates representing shares of Helix Common Stock. Provided that the holder
of GPC Stock has executed a Stockholder Letter (as defined below), upon
surrender of a GPC Stock certificate for cancellation to the Exchange Agent or
to such other agent or agents as may be appointed by Helix, the holder of such
certificate shall be entitled to receive in exchange therefor (subject to the
escrow deposit required by Section 1.11) a certificate representing that number
of whole shares of Helix Common Stock into which the shares of GPC Stock
theretofore represented by the certificate so surrendered shall have been
converted pursuant to the provisions of this Agreement, and the certificate so
surrendered shall forthwith be canceled. Until surrendered in accordance with
the provisions of this Section 1.8, each GPC Stock certificate (other than each
<PAGE>
certificate for shares to be canceled in accordance with Section 1.6(a)(ii) and
each certificate for Dissenting Shares, if any) shall represent for all purposes
shares of Helix Common Stock. Helix Common Stock into which GPC Stock shall be
converted in the Merger shall be deemed to have been issued at the Effective
Time. If any Helix Common Stock certificates are to be issued in a name other
than that in which GPC Stock certificate surrendered is registered, it shall be
a condition of such exchange that the person requesting such exchange shall
deliver to the Exchange Agent all documents necessary to evidence and effect
such transfer and shall pay to the Exchange Agent any transfer or other taxes
required by reason of the issuance of certificates for such shares of Helix
Common Stock in such different name unless such person can establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. Signatures on each letter of transmittal effecting a transfer shall
be guaranteed.
1.9 No Fractional Shares. No certificates representing fractional
shares of Helix Common Stock shall be issued, either for delivery to the holder
or to escrow. No fractional interest shall entitle the owner to vote or to any
rights of a security holder. In lieu of fractional shares, each holder of shares
of GPC Stock who would otherwise have been entitled to a fractional share of
Helix Common Stock, will receive an amount in cash (without interest) determined
by multiplying the applicable fraction by the Market Value of one share of Helix
Common Stock.
1.10 Legends. The shares of Helix Common Stock to be issued in the
Merger shall be characterized as "restricted securities" for purposes of Rule
144 under the Securities Act of 1933, and each certificate representing any of
such shares shall bear a legend identical or similar in effect to the following
legend (together with any other legend or legends required by applicable state
securities laws or otherwise):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES
LAWS, OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
THESE SECURITIES ARE ALSO SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER SET FORTH IN A STOCKHOLDER LETTER AGREEMENT WITH THE
CORPORATION, A COPY OF WHICH CAN BE OBTAINED FROM THE
CORPORATION AT ITS EXECUTIVE OFFICES.
1.11 Escrow of Shares. At the Effective Time, Helix shall deposit two
hundred twenty-five thousand (225,000) shares of the Merger Consideration with
an escrow agent reasonably satisfactory to GPC to be held and disbursed by such
agent in accordance with the form of escrow agreement attached hereto as Exhibit
A (the "Escrow Agreement"). Shares held under the Escrow Agreement shall be
deducted pro rata from the shares allocable to each stockholder of GPC.
1.12 No Liability. Notwithstanding any other provision of this
Agreement, neither the Exchange Agent, Helix or the Surviving Corporation shall
be liable for any amount paid to a public official pursuant to any applicable
abandoned property, escheat or similar law.
1.13 Closing of GPC Transfer Books. At the Effective Time, the stock
transfer books of GPC shall be closed and no transfer of GPC Stock shall
thereafter be made. If, after the Effective Time, certificates representing
shares of GPC Stock are presented to the Surviving Corporation, they shall be
canceled and exchanged for certificates representing Helix Common Stock.
<PAGE>
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF GPC
Except as set forth on the disclosure schedule delivered to Helix on
the date hereof (the "GPC Disclosure Schedule"), the section numbers of which
are numbered to correspond to the section numbers of this Agreement to which
they refer, GPC represents and warrants to Helix and Acquisition as set forth
below:
2.1 Organization and Qualification.
(a) GPC is a corporation duly organized, validly existing and
in good standing under the laws of Washington with full corporate power and
authority to own, lease and operate its assets and properties and to carry on
its business as now being and as heretofore conducted. GPC is qualified or
otherwise authorized to transact business as a foreign corporation in all
jurisdictions in which such qualification or authorization is required by law,
except for jurisdictions in which the failure to be so qualified or authorized
would not have a Material Adverse Effect on the assets, properties, business,
prospects, results of operations or financial condition of GPC ("Material
Adverse Effect").
(b) GPC has previously provided to Helix true and complete
copies of the charter and bylaws of GPC as presently in effect, and GPC is not
in default in any material respect in the performance, observation or
fulfillment of its charter or bylaws or other governing instruments. The minute
books of GPC contain true and complete records of all meetings and consents in
lieu of meetings of the Board of Directors (and any committees thereof) and of
the stockholders since the time of GPC's incorporation and accurately reflect in
all material respects all transactions referred to in such minutes and consents
in lieu of meetings. The stock books of GPC are true and complete.
2.2 Authority to Execute and Perform Agreements. GPC has the corporate
power and authority to enter into, execute and deliver this Agreement and,
subject to the approval of this Agreement by GPC's stockholders, to perform
fully its obligations hereunder. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of GPC. No action on the part of GPC other
than approval by the stockholders of GPC is necessary to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by GPC and, subject to the foregoing, constitutes a valid and binding
obligation of GPC, enforceable in accordance with its terms.
2.3 Capitalization and Title to Shares.
(a) GPC is authorized to issue 1,000,000 shares of Common
Stock, no par value, divided into two series: (i) Series A Common Stock, no par
value, of which 250,000 shares are authorized and 110,689 shares are issued and
outstanding and (ii) Series B Common Stock, no par value, of which 750,000
shares are authorized and 664,134 shares are issued and outstanding. Such shares
are owned of record by the persons and in the amounts set forth on the GPC
Disclosure Schedule. No other class of capital stock of GPC is authorized or
outstanding. All of the issued and outstanding shares of GPC's capital stock are
duly authorized and are validly issued, fully paid, nonassessable and free of
preemptive rights. None of the issued and outstanding shares of GPC have been
issued in violation of any federal or state law or any preemptive rights or
rights to subscribe for or purchase securities.
<PAGE>
(b) GPC has no outstanding rights, subscriptions, warrants,
calls, preemptive rights, options or other agreements of any kind to purchase or
otherwise receive from GPC any shares of the capital stock or any other security
of GPC, or any outstanding securities of any kind convertible into or
exchangeable for such securities. There are no shareholder agreements, voting
trusts, proxies or other agreements, instruments or understandings with respect
to the outstanding shares of capital stock of GPC to which GPC is a party.
(c) GPC does not own beneficially any shares of capital stock
of Helix.
2.4 Subsidiaries and Other Affiliates.
(a) GPC has no Subsidiaries. As used in this Agreement,
"Subsidiary" means any corporation or other legal entity of which GPC or any
Subsidiary owns, directly or indirectly, 50% percent or more of such entities,
stock or other equity interests.
(b) GPC does not directly or indirectly own or have any
investment in the capital stock or other equity interest of, and is not a party
to a partnership or joint venture with, any other person.
2.5 Financial Statements. GPC has previously delivered to Helix the
audited financial statements of GPC for the year ended December 31, 1997 (the
"Audited Financial Statements") and for the two preceding years (including the
footnotes thereto, balance sheets, related statements of operations and cash
flows for the periods then ended). All of such financial statements referred to
in this section are collectively referred to herein as the "GPC Financial
Statements." GPC Financial Statements are true and correct in all material
respects, and have been prepared from, and are in accordance with, the books and
records of GPC and present fairly the financial position and the results of
operations of GPC as of the dates and for the periods indicated, in each case in
accordance with generally accepted accounting principles ("GAAP") consistently
applied throughout the periods involved.
2.6 Absence of Undisclosed Liabilities. As of December 31, 1997, GPC
had no material liabilities of any nature, whether accrued, absolute, contingent
or otherwise (including, without limitation, liabilities as guarantor or
otherwise with respect to obligations of others or liabilities for taxes due or
then accrued or to become due), required to be reflected or disclosed in the
December 31, 1997 balance sheet (the "Audited Balance Sheet") included in the
Audited Financial Statements that were not adequately reflected or reserved
against on such balance sheet. GPC has no such liabilities other than
liabilities (i) adequately reflected or reserved against on the Audited Balance
Sheet included in the Audited Financial Statements, (ii) incurred since December
31, 1997 in the ordinary course of business, (iii) disclosed in this Agreement
or the GPC Disclosure Schedule or (iv) that could not, in the aggregate, have a
Material Adverse Effect on the Business of GPC.
2.7 No Material Adverse Change. Except for changes in the general
business of GPC that are public knowledge or as set forth on the GPC Disclosure
Schedule, since December 31, 1997, there has not been:
<PAGE>
(a) any event or circumstance having a Material Adverse Effect
with respect to GPC or any material adverse change in the business of GPC;
(b) any transaction, commitment, contract or agreement entered
into by GPC or any relinquishment by GPC of any contract or other right having a
value of or involving aggregate payments in excess of $50,000;
(c) any redemption or other acquisition of any capital stock
of GPC or any declaration, setting aside, or payment of any dividend or
distribution of any kind with respect to any shares of capital stock of GPC
(except as provided in Section 5.3);
(d) any increase in compensation, bonus or other benefits
payable or to become payable by GPC to any of its directors, officers or
employees, other than regularly scheduled increases in the ordinary course of
business;
(e) any entering into or granting by GPC of any new employment
agreement providing for annual compensation over $50,000, any new employee
benefit, deferred compensation or other similar employee benefit arrangement, or
any new consulting arrangement providing for annual compensation over $50,000
and any grant of any severance or termination rights to any director, officer or
employee of GPC or any increase in benefits payable under existing severance or
termination pay policies or employment agreements;
(f) any change in any accounting method or practice
followed by GPC;
(g) any making by GPC of any loan or advance to any
stockholder, officer, director or consultant or any affiliate or associate of
any of the foregoing (other than expense advances made in the ordinary course of
business), or any other loan or advance otherwise than in the ordinary course of
business;
(h) except for inventory or equipment acquired in the ordinary
course of business, any acquisition by GPC of all or any part of the assets,
properties, capital stock or business of any other person;
(i) any destruction of, damage to or loss of any assets
material to the Business of GPC (whether or not covered by insurance);
(j) labor trouble or claim of wrongful discharge or other
unlawful labor practice or action;
(k) any litigation commenced by or against GPC;
(l) except in the ordinary course of business, any sale,
abandonment or any other disposition of any of GPC's assets or properties; or
(m) any commitment, understanding or agreement by GPC or any
of its directors, officers or employees to do any of the things described in the
preceding clauses (a) through (l).
<PAGE>
2.8 Tax Matters
(a) Except as set forth on the GPC Disclosure Schedule, GPC
has filed all tax reports and returns required to be filed by it and paid or
will timely pay all taxes and other charges shown as due on such reports and
returns. GPC is not delinquent in the payment of any material tax assessment or
other governmental charge (including without limitation applicable withholding
taxes). Any provision for taxes reflected in the Audited Financial Statements is
adequate for payment of any and all tax liabilities for periods ending on or
before December 31, 1997 and there are no tax liens on any assets of GPC except
liens for current taxes not yet due.
(b) Except as set forth on the GPC Disclosure Schedule, there
has not been any audit of any tax return filed by GPC and no audit of any such
tax return is in progress and GPC has not been notified by any tax authority
that any such audit is contemplated or pending. GPC knows of no tax deficiency
or claim for additional taxes asserted or threatened to be asserted against it
by any taxing authority and GPC knows of no grounds for any such assessment.
Except as set forth on the GPC Disclosure Schedule, no extension of time with
respect to any date on which a tax return was or is to be filed by GPC is in
force, and no waiver or agreement by GPC is in force for the extension of time
for the assessment or payment of any tax. For purposes of this Agreement, the
term "tax" includes all federal, state, local and foreign taxes or assessments,
including income, sales, gross receipts, excise, use, value added, royalty,
franchise, payroll, withholding, property and import taxes and any interest or
penalties applicable thereto.
(c) GPC has not agreed to, and is not required to, make any
adjustments under Section 481(a) of the Code by reason of a change in accounting
method or otherwise.
(d) At all times since April 1, 1994, GPC has been an S
corporation within the meaning of Section 1361(a)(1) of the Code and has used
the calendar year as it taxable year. Except as set forth on the GPC Disclosure
Schedule, GPC did not conduct any business in any state or political subdivision
in which the disposition of any of its assets including goodwill in a
transaction in which gain or income would be realized would result in the
imposition by that state or political subdivision of a corporate level tax,
except that GPC is subject to taxation under the Colorado state franchise tax
laws. GPC has never acquired any asset, including goodwill, the basis of which
was determined in whole or in part by reference to the basis of the asset in the
hands of a C corporation within the meaning of Section 1361(a)(2) of the Code or
an S corporation subject to the provisions of Section 1374 of the Code or
predecessor provisions thereto. GPC and its stockholders have not taken any
action which will result in the (i) termination or revocation prior to the
Closing of GPC's status as an S corporation within the meaning of Section
1361(a)(1) of the Code or (ii) the imposition of a tax on GPC under the
provisions of Section 1374 of the Code. GPC is not a party to any agreement or
arrangement with its stockholders to make distributions to its stockholder to
pay any tax imposed on the stockholders, except as provided in Section 5.3.
<PAGE>
2.9 Compliance with Laws.
(a) Except for those which the failure to have would not have
a Material Adverse Effect, GPC has all licenses, permits, franchises, orders or
approvals of any federal, state, local or foreign governmental or regulatory
body relating to the conduct of its business (collectively, "Permits"); such
Permits are in full force and effect; and no proceeding is pending or, to the
best knowledge of GPC, threatened to revoke or limit any Permit. The GPC
Disclosure Schedule contains a true and complete list of all Permits.
(b) GPC is not in violation of any applicable law, ordinance
or regulation or any order, judgment, injunction, decree or other requirement of
any court, arbitrator or governmental or regulatory body. Since its
organization, GPC has not received notice of, and there has not been any
citation, fine or penalty imposed against GPC for, any such violation or alleged
violation.
2.10 No Breach. Except for (a) the filing of a premerger notification
form pursuant to the HSR Act and (b) the filing of the Merger Certificate with
the State of Washington, the execution, delivery and performance of this
Agreement by GPC and the consummation by GPC of the transactions contemplated
hereby will not (i) violate any provision of the Articles of Incorporation or
Bylaws of GPC; (ii) violate, conflict with or result in the breach of any of the
terms or conditions of, result in modification of the effect of, or otherwise
give any other contracting party the right to terminate, or constitute (or with
notice or lapse of time or both constitute) a default under, any instrument,
contract or other agreement to which GPC is a party or to which it or its assets
or properties is bound or subject; (iii) violate any law, ordinance or
regulation or any order, judgment, injunction, decree or other requirement of
any court, arbitrator or governmental or regulatory body applicable to GPC or by
which any of GPC's assets, properties or securities is bound; (iv) violate any
Permit; (v) require any filing with, notice to, or permit, consent or approval
of, any other governmental or regulatory body; or (vi) result in the creation of
any lien or other encumbrance on the assets, properties or securities of GPC.
2.11 Actions and Proceedings. There are no outstanding orders, awards,
judgments, injunctions, decrees or other requirements of any court, arbitrator
or governmental or regulatory body against GPC or any of its securities, assets
or properties or to the knowledge of GPC any of its officers, directors,
stockholders or key employees. There are no actions, suits, investigations or
claims or legal, administrative or arbitration proceedings pending or, to the
knowledge of GPC, threatened against GPC or any of its officers, directors,
stockholders or key employees. To the knowledge of GPC, there is no fact, event
or circumstance now in existence that reasonably could be expected to give rise
to any such action, suit, claim, proceeding or investigation.
2.12 Contracts and Other Agreements. The GPC Disclosure Schedule sets
forth a list of the following contracts and other agreements to which GPC is a
party or by or to which it or any of its assets or properties are bound or
subject:
(a) any agreement or series of related agreements requiring
aggregate payments by or to GPC of more than $50,000;
<PAGE>
(b) any agreement with or for the benefit of any current or
former officer, director, shareholder, employee or consultant of GPC;
(c) any agreement with any labor union or association
representing any employee of GPC;
(d) any agreement for the purchase or sale of materials,
supplies, equipment, merchandise or services that contain an escalation,
renegotiation or redetermination clause or that obligate GPC to purchase all or
substantially all of its requirements of a particular product or service from a
supplier, or for periodic minimum purchases of a particular product or service
from a supplier;
(e) other than in the ordinary course of business, any
agreement for the sale of any of the assets or properties of GPC or for the
grant to any person of any options, rights of first refusal, or preferential or
similar rights to purchase any such assets or properties;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification,
other than agreements in the ordinary course of business with respect to
obligations in an aggregate amount not in excess of $50,000;
(h) any agreement containing covenants of GPC not to compete
in any line of business, in any geographic area or with any person or covenants
of any other person not to compete with GPC or in any line of business of GPC;
(i) any agreement granting or restricting the right of
GPC to use any Proprietary Right;
(j) any agreement with customers or suppliers for the sharing
of fees, the rebating of charges or other similar arrangements;
(k) any distribution or sales representative agreement;
(l) any agreement appointing any agent of GPC;
(m) any agreement with any holder of securities of GPC as such
(including, without limitation, any agreement containing an obligation to
register any of such securities under any federal or state securities laws);
(n) any agreement obligating GPC to deliver services or
product enhancements or containing a "most favored nation" pricing clause;
(o) any agreement relating to the acquisition by GPC of any
operating business or the capital stock of any other person;
(p) any agreement requiring the payment to any person of a
brokerage or sales commission or a finder's or referral fee (other than
arrangements to pay commissions or fees to employees in the ordinary course of
business);
(q) any agreement or note relating to or evidencing
outstanding indebtedness for borrowed money;
<PAGE>
(r) any lease, sublease or other agreement under which GPC is
lessor or lessee of any real property or equipment or other tangible property;
(s) any agreement with a change of control provision or
otherwise requiring any consent with respect to the Merger; and
(t) any other material agreement whether or not made in the
ordinary course of business.
True and complete copies of all the contracts and other agreements (and all
amendments, waivers or other modifications thereto) set forth on the GPC
Disclosure Schedule have been furnished to Helix. Each of such contracts is
valid, subsisting, in full force and effect, binding upon GPC, and to the best
knowledge of GPC, binding upon the other parties thereto in accordance with
their terms, and GPC is not in default under any of them, nor, to the best
knowledge of GPC, is any other party to any such contract or other agreement in
default thereunder, nor does any condition exist that with notice or lapse of
time or both would constitute a default thereunder.
2.13 Bank Accounts and Powers of Attorney. The GPC Disclosure Schedule
identifies all bank and brokerage accounts of GPC, whether or not such accounts
are held in the name of GPC, lists the respective signatories therefor and lists
the names of all persons holding a power of attorney from GPC and a summary of
the terms thereof.
2.14 Properties. GPC owns and has good title to all of its assets and
properties reflected as owned on the Audited Balance Sheet, free and clear of
any lien, claim or other encumbrance, except for (A) assets and properties
disposed of, or subject to purchase or sales orders, in the ordinary course of
business since December 31, 1997, (B) liens or other encumbrances securing the
liens of materialmen, carriers, landlords and like persons, all of which are not
yet due and payable, and (C) liens for taxes not yet delinquent.
2.15 Intangible Property.
The GPC Disclosure Schedule sets forth all of the patents,
trademarks, service marks, trade names, franchises, copyrights and inventions,
the location of all information regarding the registration of any of the
foregoing or applications therefor, and all permits, grants and licenses or
other rights relating to any of the foregoing (collectively, the "Proprietary
Rights") that are material to the business of GPC. Except as set forth on the
GPC Disclosure Schedule, GPC has exclusive ownership of all Proprietary Rights
used in its business as presently conducted or to be used in its business as it
is contemplated to be conducted. Except as set forth on the GPC Disclosure
Schedule, GPC has not received any notices of infringement by it of any
Proprietary Rights of others. Except as set forth in on the GPC Disclosure
Schedule, to the best knowledge of GPC, none of the present activities, or
contemplated activities under planning or development, of GPC, or its products
or assets infringe on any Proprietary Rights of others; and GPC is not aware of
any infringement or violation by others of the Proprietary Rights of GPC. Except
as set forth on the GPC Disclosure Schedule, GPC has the right to use, free and
clear of claims or rights of others, all trade secrets, customer lists,
procedures, processes, computer software, and other information required for or
<PAGE>
incident to GPC's services or its business as presently conducted or
contemplated to be conducted. GPC's policies and procedures designed to
establish and preserve its ownership of its Proprietary Rights are described on
the GPC Disclosure Schedule. In particular, without limitation of the foregoing,
GPC has (a) affixed appropriate copyright notices to all copies of any original
written material prepared by it and distributed to the public; and (b) disclosed
or made available any confidential information relating to patents, trade
secrets, inventions, know-how and related Proprietary Rights only to (i)
employees or consultants of GPC who required such disclosure or access for the
business purposes of GPC and who have executed written confidentiality
agreements governing their use of confidential information and (ii) as set forth
on the GPC Disclosure Schedule. GPC is not aware of any violation of the
confidentiality of its Proprietary Rights. To the best knowledge of GPC, GPC is
not making unauthorized use of any confidential information or trade secrets of
any person, including without limitation any former employer of any past or
present employees of GPC. To the best knowledge of GPC, none of the activities
of any employees of GPC on behalf of GPC violates any agreements or arrangements
which any such employees have with former employers currently in effect.
2.16 Real Property.
(a) The GPC Disclosure Schedule sets forth a complete list of
all real property owned by GPC (individually, an "Owned Property" and
collectively, the "Owned Properties"). GPC has good and clear record and
marketable fee title to the Owned Properties, free and clear of all mortgages,
liens, security interests, easements, restrictive covenants, rights-of-way and
other encumbrances ("Encumbrances") other than (i) liens that are disclosed on
GPCs Disclosure Schedule; (ii) liens for taxes, fees, levies, duties or other
governmental charges of any kind which are not yet delinquent; (iii) (A)
platting, subdivision, zoning, building and other similar legal requirements,
(B) easements, restrictive covenants, rights-of-way, encroachments and other
similar encumbrances, which are of record, (C) reservations of coal, oil, gas,
minerals and mineral interests, which are of record, (the Encumbrances described
in clauses (i) through (iii) above are hereinafter referred to collectively as
"Permitted Liens"). Without limiting the generality of the foregoing, as
evidenced by the owner's title insurance policies identified in GPCs Disclosure
Schedule, GPC holds fee simple title to each Owned Property subject only to the
matters set forth in such title policies, which matters are set forth on GPCs
Disclosure Schedule. GPC shall cause title to the Owned Properties to be updated
from the effective dates of such title insurance policies to the Closing Date
showing title to the Owned Properties complies with the requirements of this
Section 2.16(a) and Section 7.7.
(b) Each of the Owned Properties and the structures and
improvements thereon have been maintained, operated and used in accordance in
all material respects with all laws, by-laws, ordinances, rules, restrictions,
regulations, orders or codes of all governmental authorities, and all covenants,
conditions and restrictions, public or private, which materially affect each of
the Owned Properties or any part thereof or the business or activity conducted
thereon ("laws and regulations"). All construction on, improvements to, and
alterations of each of the Owned Properties complies with, and each and every
part of the Owned Properties has been maintained and used in accordance with,
all laws and regulations.
<PAGE>
(c) The GPC Disclosure Schedule sets forth a complete list of
all real property leased by GPC (individually, a "Leased Property" and,
collectively, the "Leased Properties"). GPC has valid, good and marketable
leasehold interest in the Leased Properties, in each case free and clear of all
Encumbrances, except for Permitted Liens and Encumbrances on the fee interest of
the Leased Properties which do not constitute indebtedness of GPC. To the best
of GPC's knowledge, none of the easements, restrictions or other matters of
record to which such Leased Property is subject prevent or unreasonably or
materially interfere with the use of such Leased Property for the conduct of the
business thereon as heretofore conducted by GPC. GPCs Disclosure Schedule hereto
identifies the parties to and dates of the lease for each material Leased
Property and all addenda, amendments and attachments thereto (each, a "Real
Property Lease"); except as set forth in GPCs Disclosure Schedule, such Real
Property Lease has not been otherwise amended, modified or supplemented by any
written or oral agreement or understanding. Except as set forth on GPCs
Disclosure Schedule, the Merger as contemplated by this Agreement is either
permitted as of right under each Real Property Lease or otherwise does not
require the consent of the landlord under such Real Property Lease; with respect
to each material Real Property Lease for which the landlord's consent is
required, GPC shall obtain such consent prior to the Closing. GPC has accepted
possession of each Leased Property and occupies such leased premises in
connection with the conduct of the business. Each Real Property Lease affords
GPC peaceful and undisturbed possession of the leased premises thereunder. The
landlord under each Real Property Lease has performed, to the satisfaction of
GPC all of the landlord's obligations under such Real Property Lease, and all
fixtures, equipment, improvements and other components of the leased premises
are in good working order and condition so as to be adequate for the conduct of
GPC's business. GPC shall cause the landlord for each Leased Property to deliver
to GPC as of the Closing Date an estoppel certificate that confirms the accuracy
of the foregoing representations.
(d) To GPC's knowledge, there are no eminent domain
proceedings pending or threatened against any Owned Property or Leased Property
(the Owned Properties and the Leased Properties are herein referred to
collectively as the "Real Property").
2.17 Customers. The GPC Disclosure Schedule sets forth the 25 customers
who accounted for the largest sales of GPC during 1997 (the "Customers"). Except
as set forth on the GPC Disclosure Schedule, the relationships of GPC with the
Customers are good commercial working relationships. Except as set forth on the
GPC Disclosure Schedule, no Customer has canceled or otherwise terminated its
relationship with GPC or has decreased materially its usage or purchase of the
services of GPC. Except as set forth on the GPC Disclosure Schedule, GPC does
not know of any plan or intention of any Customer, and has not received any
written threat or notice from any Customer, to terminate, cancel or otherwise
materially and adversely modify its relationship with GPC or to decrease
materially or limit its usage or purchase of the services or products of GPC.
2.18 Accounts Receivable. Subject to the allowances with respect to
accounts receivable set forth on the Closing Balance Sheet, all accounts
receivable reflected on such balance sheet have arisen in the ordinary course of
business of GPC, represent valid and enforceable obligations due to GPC and have
been and are subject to no set-off, counterclaim or future performance
obligation on the part of GPC.
<PAGE>
2.19 Inventory. The inventory of GPC is and at the Effective Time will
be in good and merchantable condition and saleable or useable in the manufacture
of saleable finished goods in the ordinary course of business, except for
obsolete or below standard items written off or reserved against in accordance
with GPC's past practices.
2.20 Employee Benefit Plans. The GPC Disclosure Schedule sets forth a
complete list of all stock options, restricted stock, phantom stock, pension,
profit sharing, retirement, deferred compensation, welfare, insurance,
disability, bonus, incentive, vacation pay, severance pay and similar plans,
programs or arrangements, including without limitation all employee benefit
plans as defined in Section 3 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") (the "Plans") maintained by GPC or its Subsidiaries.
GPC does not maintain or contribute to any "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA, and GPC has not incurred any material liability
under Sections 4062, 4063 or 4201 of ERISA. Each Plan maintained by GPC which is
intended to be qualified under either Section 401(a) or 501(c)(9) of the Code
("Qualified Plans") is so qualified. Each Plan has been administered in
accordance with the terms of such Plan and the provisions of any and all
statutes, orders or governmental rules or regulations, including without
limitation ERISA and the Code, and nothing has been done or omitted to be done
with respect to any Plan that would result in any liability on the part of GPC
or a Subsidiary under Title I of ERISA or Section 4975 of the Code. All reports
required to be filed with respect to all Plans, including without limitation
annual reports on Form 5500, have been timely filed except where the failure to
so file would not have a Material Adverse Effect. No "reportable event" as
defined at Section 4043 of ERISA, other than any such event for which the
thirty-day notice period has been waived, has occurred with respect to any
pension plan subject to Title IV of ERISA. With respect to all pension plans
subject to Title IV of ERISA, such plans have no unfunded benefit liabilities,
all contributions to such plans under the minimum funding requirements of
Section 412 of the Code have been made and all premium payments to the Pension
Benefit Guaranty Corporation with respect to such plans have been made. All
claims for welfare benefits incurred by employees on or before the Closing are
or will be fully covered by third-party insurance policies or programs. Except
for continuation of health coverage to the extent required under Section 4980B
of the Code or as otherwise set forth in this Agreement, there are no
obligations under any welfare plan providing benefits after termination of
employment.
2.21 Employee Relations. GPC has approximately 90 full-time equivalent
employees and generally enjoys good employer-employee relations. GPC is not
delinquent in payments to any of its employees or consultants for any wages,
salaries, commissions, bonuses or other direct compensation for any services
performed by them to the date hereof or amounts required to be reimbursed to
such employees. Except as set forth in the GPC Disclosure Schedule, upon
termination of the employment of any employees, neither GPC nor Helix or the
Surviving Corporation will by reason of the Merger or anything done prior to the
Effective Time be liable to any of such employees for severance pay or any other
payments (other than accrued salary, vacation or sick pay in accordance with
GPC's normal policies). True and complete information as to all current
directors, officers, employees or consultants of GPC, including, in each case,
name, current job title, base salary, bonus potential, commissions and
termination obligations has been previously furnished to Helix.
<PAGE>
2.22 Employment Matters. GPC is in compliance in all material respects
with all applicable foreign, federal, state and local laws, rules and
regulations respecting employment, employment practices, terms and conditions of
employment and wages and hours, in each case, with respect to Employees. No work
stoppage or labor strike against GPC is pending or, to the knowledge of GPC,
threatened. GPC is not involved in or, to the knowledge of GPC, threatened with,
any labor dispute, grievance, or litigation relating to labor, safety or
discrimination matters involving any Employee, including, without limitation,
charges of unfair labor practices or discrimination complaints. GPC has not
engaged in any unfair labor practices within the meaning of the National Labor
Relationship Act. GPC is not presently, nor has it been in the past, a party to,
or bound by, (i) any collective bargaining agreement or union contract with
respect to Employees and no collective bargaining agreement is being negotiated
by GPC or (ii) any statutory works council or other agreement, statute, rule or
regulation that mandates employee approval, participation, consultation or
consent with regard to the transactions contemplated hereby.
2.23 Employee Conflicts. Except as set forth on the GPC Disclosure
Schedule, to GPC's knowledge, no employee or consultant of GPC (i) is in
violation of any term of any employment contract, patent disclosure agreement,
non-competition agreement, or any restrictive covenant to a former employer
relating to the right of any such employee or consultant to be employed by GPC
because of the nature of the business conducted or presently proposed to be
conducted by GPC or to the use of trade secrets or proprietary information of
others or (ii) has given notice to GPC nor is GPC otherwise aware, that any such
employee or consultant intends to terminate his or her employment with GPC.
2.24 Transactions with Management. Except as set forth on the GPC
Disclosure Schedule, no officer or director of GPC has (whether directly or
indirectly through another entity in which such person has an interest, other
than as the holder of less than 1% of a class of securities of a publicly traded
company) to the knowledge of GPC, any interest in (i) any property or assets of
GPC (except as a shareholder), (ii) any current competitor, customer or supplier
of GPC, or (iii) any person which is currently a party to any material contract
or agreement with GPC.
2.25 Insurance. The GPC Disclosure Schedule sets forth a list of all
policies or binders of fire, liability, product liability, workmen's
compensation, vehicular, directors' and officers' and other insurance held by or
on behalf of GPC. Such policies and binders are in full force and effect, are
reasonably believed to be adequate for the businesses engaged in by GPC, as
applicable, and are in conformity with the requirements of all leases or other
agreements to which GPC is a party and, to the knowledge of GPC, are valid and
enforceable in accordance with their terms. GPC is not in default with respect
to any provision contained in any such policy or binder nor has GPC failed to
give any notice or present any claim under any such policy or binder in due and
timely fashion. There are no outstanding unpaid claims under any such policy or
binder. GPC has not received notice of cancellation or non-renewal of any such
policy or binder.
2.26 Brokerage. Except for The Wallach Company, no broker, finder,
agent or similar intermediary has acted on behalf of GPC or any of the Principal
Stockholders in connection with this Agreement or the transactions contemplated
hereby, and other than the fee owed to The Wallach Company there are no
brokerage commissions, finders' fees or similar fees or commissions payable in
connection herewith based on any agreement, arrangement or understanding with
GPC or any of the Principal Stockholders, or any action taken by any of them.
<PAGE>
2.27 Environmental Matters.
(a) Except as set forth on the GPC Disclosure Schedule, no
material amount of any substance that has been designated by an governmental
entity or by applicable federal, state or local law to be radioactive, hazardous
or otherwise to pose an unreasonable danger to human health or the environment,
including, without limitation, PCBs, friable asbestos, petroleum,
urea-formaldehyde and all substances listed as hazardous substances pursuant to
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, or defined as a hazardous waste pursuant to the United States
Resource Conservation and Recovery Act of 1976, as amended, and the regulations
promulgated pursuant to said laws, (a "Hazardous Material"), but excluding
office, maintenance, shipping and janitorial supplies, are present as a result
of the actions of GPC, or, to the best knowledge of GPC, as a result of any
actions of any third party or otherwise, in, on or under any property, including
the land and the improvements, ground water and surface water thereof, that GPC
has at any time owned, operated, occupied or leased. No underground storage
tanks are present under any property that GPC at any time owned or occupied. The
GPC Disclosure Schedule lists all locations that GPC formerly owned or leased
where, to the best knowledge of GPC, Hazardous Materials are present in a volume
or concentration that would reasonably be expected to have a Material Adverse
Effect.
(b) GPC has not transported, stored, used, manufactured,
disposed of, released or exposed its employees or others to Hazardous Materials
in violation of any applicable law, nor has GPC disposed of, transported, sold,
or manufactured any product containing a Hazardous Material (collectively
"Hazardous Materials Activities") in violation of any rule, regulation, treaty
or statute promulgated by any governmental entity authorized to prohibit,
regulate or control Hazardous Materials or any Hazardous Material Activity which
would reasonably be expected to have a Material Adverse Effect.
(c) GPC currently holds all environmental approvals, permits,
licenses, clearances and consents (the "Environmental Permits") necessary for
the conduct of GPC's Hazardous Material Activities and other business activities
as such activities are currently being conducted.
(d) No material action, proceeding, revocation proceeding,
amendment procedure, writ, injunction or claim is pending, or to GPC's
knowledge, threatened concerning any Environmental Permit, Hazardous Material
in, on or under any property owned or leased by GPC or any Hazardous Materials
Activity of GPC and there is no fact or circumstance that could involve GPC in
any environmental litigation that would reasonably be expected to have a
Material Adverse Effect or impose upon GPC any material environmental liability.
(e) GPC has previously furnished to Helix copies of any
environmental audits or risk assessments, site assessments, documentation
regarding off-site disposal of Hazardous Materials, spill control plans and
material correspondence with any governmental agency regarding the foregoing.
<PAGE>
2.28 Year 2000 Compliance. Certain of GPC's internal computer systems
are not Year 2000 compliant, i.e., they may not function properly after December
31, 1999, because they cannot distinguish between the 20th and 21st centuries.
GPC has been taking actions intended to either correct such systems or replace
them with Year 2000 compliant systems and does not believe that the cost of such
actions will have a Material Adverse Effect. GPC has also taken steps to request
its key customers and suppliers to confirm that their systems are Year 2000
compliant. However, there can be no assurance at this time that either GPC or
its key customers and suppliers will achieve timely compliance, or that GPC's
costs of achieving compliance will not exceed its current estimates.
2.29 Disclosure. The representations and warranties and statements of
GPC contained in this Agreement do not contain any untrue statement of a
material fact, and do not omit to state any material fact necessary to make such
representations, warranties and statements, in light of the circumstances under
which they are made, not misleading. Without limiting the foregoing sentence,
there is no fact or circumstance known to GPC that has not been disclosed to
Helix in this Agreement that is reasonably likely to have a Material Adverse
Effect.
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL STOCKHOLDERS
Except as set forth on the disclosure schedule delivered to Helix on
the date hereof (the "Stockholder Disclosure Schedule"), the section numbers of
which are numbered to correspond to the section numbers of this Agreement to
which they refer, each of the Principal Stockholders, severally, represents and
warrants to Helix and Acquisition as to itself only as follows:
3.1 Authority to Execute and Perform Agreements. Each Principal
Stockholder has the full legal right and power and all authority and approvals
required to enter into, execute and deliver this Agreement, the Stockholder
Voting Agreement (as defined in Section 5.11) and the Stockholder Letter (as
defined in Section 5.10) and to perform fully its or his obligations hereunder
and thereunder. This Agreement has been duly executed and delivered and is the
valid and binding obligation of each Principal Stockholder enforceable in
accordance with its terms. When executed and delivered pursuant hereto, the
Stockholder Voting Agreement and the Stockholder Letter will be the valid and
binding obligation of each Principal Stockholder enforceable in accordance with
its terms.
3.2 No Breach. The execution, delivery and performance of this
Agreement, the Stockholder Voting Agreement and the Stockholder Letter and the
consummation of the transactions contemplated hereby and thereby will not (i)
violate, conflict with or result in the breach of any of the terms or conditions
of, result in modification of the effect of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any instrument, contract or other
agreement to which the Principal Stockholder is a party or to which the
Principal Stockholder or its assets or properties may be bound or subject; (ii)
violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, the
Principal Stockholder or upon the securities, properties or assets of the
Principal Stockholder; (iii) violate any statute, law or regulation of any
jurisdiction as such statute, law or regulation relates to the Principal
Stockholder; or (iv) require the approval or consent of any foreign, federal,
state, local or other governmental or regulatory body or the approval or consent
of any other person.
<PAGE>
3.3 Title to Shares. Each Principal Stockholder owns beneficially and
of record, free and clear of any lien, claim or encumbrance, the shares of GPC
Stock set forth opposite such stockholder's name on Schedule 1.6(d). There are
no shareholder agreements, voting trusts, proxies or other agreements or
understandings with respect to the outstanding shares of capital stock of GPC to
which any Principal Stockholder is a party.
3.4 Accuracy of GPC Representations and Warranties. To the knowledge of
each Principal Stockholder, the representations and warranties of GPC contained
herein do not contain any untrue statement of a material fact and do not omit to
state any material fact necessary to make such representations, warranties and
statements, in light of the circumstances under which they are made, not
misleading.
SECTION 4 - REPRESENTATIONS AND WARRANTIES OF
HELIX AND ACQUISITION
Except as set forth on the disclosure schedule delivered to GPC on the
date hereof (the "Helix Disclosure Schedule"), the section numbers of which are
numbered to correspond to the section numbers of this Agreement to which they
refer, Helix represents and warrants regarding itself and Acquisition, and
Acquisition represents and warrants regarding itself, to GPC and the Principal
Stockholders as follows:
4.1 Organization. Each of Helix and Acquisition is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation with full corporate power and authority to own, lease and operate
its assets and to carry on its business as now being and as heretofore
conducted.
4.2 Authority to Execute and Perform Agreement. Each of Helix and
Acquisition has the corporate power and authority to enter into, execute and
deliver this Agreement and to perform fully its respective obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Board of
Directors of Helix, which is the only required corporate action on the part of
Helix, and by all necessary corporate action on the part of Acquisition. This
Agreement has been duly executed and delivered by each of Helix and Acquisition
and constitutes a valid and binding obligation of each, enforceable in
accordance with its terms.
4.3 Capitalization.
(a) Helix is authorized to issue 30,000,000 shares of Helix
Common Stock, of which 19,830,206 shares were issued and outstanding as of
December 31, 1997, and 2,000,000 shares of preferred stock, $1.00 par value
("Helix Preferred Stock"), issuable in series, none of which are outstanding. As
of December 31, 1997, except for an aggregate of 1,313,774 shares of Helix
Common Stock reserved for issuance under various stock option and stock purchase
plans of Helix, there is no outstanding right, subscription, warrant, call,
preemptive right, option or other agreement of any kind to purchase or otherwise
to receive from Helix any shares of the capital stock or any other security of
Helix and there is no outstanding security of any kind convertible into or
exchangeable for such capital stock. When issued in accordance with the terms of
this Agreement, Helix Common Stock to be issued pursuant to the Merger will be
duly authorized, validly issued, fully paid, nonassessable and free of any
preemptive rights.
<PAGE>
(b) All the issued and outstanding shares of capital stock of
Acquisition have been or, at the Closing, will be duly authorized and validly
issued, fully paid and nonassessable, will not have been issued in violation of
any preemptive rights and will be owned by Helix.
4.4 SEC Reports. Helix has previously delivered to GPC its (i) Annual
Report on Form 10-K for the year ended December 31, 1997 (the "Helix 10-K"), as
filed with the SEC, (ii) the proxy statements relating to Helix's meetings of
stockholders held since December 31, 1996 and to be held on April 29, 1998 and
(iii) all other periodic and current reports filed by Helix with the SEC under
the Securities Exchange Act of 1934 (the "Exchange Act") since March 31, 1997.
As of their respective dates, such reports complied in all material respects
with applicable SEC requirements and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Helix has timely filed with the SEC all
reports required to be filed under Sections 13, 14 or 15(d) of the Exchange Act
since March 31, 1997.
4.5 Financial Statements. The consolidated financial statements
contained in the Helix 10-K have been prepared from, and are in accordance with,
the books and records of Helix and present fairly the consolidated financial
condition and results of operations of Helix and its subsidiaries as of and for
the periods presented therein, all in conformity with GAAP applied on a
consistent basis, except as otherwise noted therein.
4.6 No Material Adverse Change. Since December 31, 1997, except as
described in a Helix Form 10-K or any Form 8-K filed prior to the date of this
Agreement, or changes in the general business of Helix that are public
knowledge, there has not been any material adverse change in the assets,
properties, results of operations or financial condition of Helix and its
subsidiaries taken as a whole (a "Helix Material Adverse Effect").
4.7 Actions and Proceedings. Except as set forth in the Helix 10-K,
there are no actions, suits or claims or legal, administrative or arbitration
proceedings pending or, to the best knowledge of Helix and Acquisition,
threatened against Helix, Acquisition or any other corporation or legal entity
of which Helix owns, directly or indirectly, 50% or more of the stock or other
equity interest entitled to vote for the election of directors that individually
or in the aggregate would affect materially and adversely the ability of Helix
or Acquisition to complete the transactions contemplated hereby or that would
have a Helix Material Adverse Effect.
4.8 No Breach. The execution, delivery and performance of this
Agreement by Helix and Acquisition and the Escrow Agreement by Helix and
consummation by such parties of the transactions contemplated hereby will not
(i) violate any provision of the Certificate of Incorporation or Bylaws of Helix
or the Articles of Incorporation or Bylaws of Acquisition; (ii) violate,
conflict with or result in the breach of any of the terms or conditions of,
result in modification of the effect of, or otherwise give any other contracting
party the right to terminate, or constitute (or with notice or lapse of time or
both constitute) a default under, any instrument, contract or other agreement to
which Helix or Acquisition is party or to which either of them or any of their
assets or properties is bound or subject; (iii) violate any law, ordinance or
<PAGE>
regulation or any order, judgment, injunction, decree or requirement of any
court, arbitrator or governmental or regulatory body applicable to Helix or
Acquisition or by which any of their assets or properties is bound; (iv) require
any filing with, notice to, or permit, consent or approval of, any governmental
or regulatory body except for (a) the filing of a premerger notification form
pursuant to the HSR Act, (b) the filing of the Merger Certificate with the
Secretary of State of Washington, (c) filings with various state blue sky
authorities and (d) the filing with the Nasdaq National Market of an application
for listing of the shares of Helix Common Stock to be issued in the Merger, or
(v) result in the creation of any lien or other encumbrance on the assets or
properties of Helix or Acquisition.
SECTION 5 - COVENANTS AND AGREEMENTS
The parties covenant and agree as follows:
5.1 Conduct of Business. Except with the prior written consent of
Helix, which will not be unreasonably withheld, and except as otherwise
contemplated herein, during the period from the date hereof to the Effective
Time, GPC shall observe the following covenants:
(a) Affirmative Covenants Pending Closing. GPC will:
(i) Preservation of Personnel. Use all reasonable
efforts to preserve intact its business organization and keep available the
services of present employees and consultants, it being understood that
termination of employees with poor performance ratings shall not constitute a
violation of this covenant;
(ii) Insurance. Use all reasonable efforts to keep in
effect casualty, public liability, worker's compensation and other insurance
policies in coverage amounts not less than those in effect at the date of this
Agreement;
(iii) Preservation of the Business; Maintenance of
Properties, Contracts. Use commercially reasonable efforts to preserve its
businesses, advertise, promote and market its services, keep its properties
intact, preserve its goodwill, and maintain all physical properties in good
operating condition;
(iv) Intellectual Property Rights. Use its best
efforts to preserve and protect the Proprietary Rights; and
(v) Ordinary Course of Business. Operate its
business diligently and solely in the ordinary course.
(b) Negative Covenants Pending Closing. GPC will not:
(i) Disposition of Assets. Sell or transfer, or
mortgage, pledge or create or permit to be created any lien on, any of their
assets, other than sales or transfers in the ordinary course of business and
liens existing under arrangements disclosed herein or permitted under Section
2.14 or Section 2.16;
<PAGE>
(ii) Liabilities. (A) Incur any obligation or
liability other than in the ordinary course of GPC's business, (B) incur any
indebtedness for borrowed money or (C) enter into any contracts or commitments
involving payments by GPC of $50,000 or more, other than purchase orders or
commitments for inventory materials and supplies in the ordinary course of
business;
(iii) Compensation. (A) Change the compensation or
fringe benefits of any officer, director, employee or consultant, except for
ordinary merit increases for employees other than officers based on periodic
reviews in accordance with past practices or (B) enter into or modify any Plan
or any employment, severance or other agreement with any officer, director,
employee or consultant of GPC;
(iv) Capital Stock. (A) Grant or accelerate the
exercisability of, any option, warrant or other right to purchase, or to convert
any obligation into, shares of its capital stock, (B) declare or pay any
dividend or other distribution with respect to any shares of its capital stock
except as permitted by Section 5.3 or (C) issue any shares of its capital stock,
except upon the exercise of options outstanding on the date hereof;
(v) Charter and Bylaws. Amend the Articles of
Incorporation or Bylaws of GPC;
(vi) Acquisitions. Make any acquisition of
property other than in the ordinary course of GPC's business;
(vii) License Agreements. Enter into or modify
any license, technology development or technology transfer agreement with any
other person or entity, other than license agreements entered into in the
ordinary course of business on GPC's standard form as previously delivered to
Helix;
(viii) Legal Action. Commence any legal action
outside the ordinary course of business that could expose Helix or the Surviving
Corporation directly or indirectly to any material liability as a result of any
counterclaim or cross-claim or otherwise;
(ix) Other Material Changes. Take any
affirmative action or fail to take any reasonable action within its control as a
result of which any of the changes or events listed in Section 2.7 is likely to
occur.
5.2 Corporate Examinations and Investigations. Prior to the Effective
Time, Helix shall be entitled, through its employees and representatives, to
have such access to the assets, properties, business, books, records and
operations of GPC as Helix shall reasonably request in connection with Helix's
investigation of GPC with respect to the transaction contemplated hereby. Any
such investigation and examination shall be conducted at reasonable times and
GPC shall cooperate fully therein. No investigation by Helix shall diminish or
obviate any of the representations, warranties, covenants or agreements of GPC
or the Principal Stockholders contained in this Agreement. In order that Helix
may have full opportunity to make such investigation, GPC shall furnish the
representatives of Helix during such period with all such information and copies
of such documents concerning the affairs of GPC as such representatives may
reasonably request and cause its officers, employees, consultants, agents,
accountants and attorneys to cooperate fully with such representatives in
connection with such investigation.
<PAGE>
5.3 Taxes. GPC shall prepare and timely file, in a manner consistent
with prior years, all tax returns required to be filed with respect to all
periods ending on or before the Closing, and shall timely pay any Taxes and
estimated Taxes, including additions, interest and penalties, required to be
paid with respect to any period ending on or before the Closing. Helix
acknowledges and agrees that GPC shall be entitled to make a distribution to its
stockholders immediately prior to the Closing in an amount equal to the amount
of any federal, state, local and foreign taxes payable by such stockholders with
respect to any of GPC's tax items, income, or loss taken into account under
Section 1366 of the Code to determine the federal income tax liability of such
stockholders for the short S Corporation taxable year ending as of the Closing
as estimated by GPC and approved by Helix's accountants. GPC shall deliver to
Helix and its accountants not less than ten (10) days before the Closing its
good faith estimate of the amount of such distribution and the financial
statement information on which it is based.
5.4 Expenses. Each of GPC and Helix shall bear its respective expenses
incurred in connection with the preparation, execution and performance of this
Agreement and the transactions contemplated hereby, including without
limitation, all fees and expenses of agents, representatives, counsel and
accountants.
5.5 Authorization from Others. Prior to the Closing Date, the parties
shall use all reasonable efforts to obtain all authorizations, consents and
permits required to permit the consummation of the transactions contemplated by
this Agreement.
5.6 Consummation of Agreement. Each party shall use its best efforts to
perform and fulfill all conditions and obligations to be performed and fulfilled
by it under this Agreement and to ensure that to the extent within its control
or capable of influence by it, no breach of any of the respective
representations, warranties and agreements hereunder occurs or exists on or
prior to the Effective Time, all to the end that the transactions contemplated
by this Agreement shall be fully carried out in a timely fashion.
5.7 Public Announcements and Confidentiality. Any press release or
other information to the press or any third party with respect to this Agreement
or the transactions contemplated hereby shall require the prior approval of
Helix and GPC, which approval shall not be unreasonably withheld, provided that
a party shall not be prevented from making such disclosure as it shall be
advised by counsel is required by law or the rules of the Nasdaq National
Market. GPC and the Principal Stockholders shall also keep confidential and
shall not use in any manner any information or documents obtained from Helix or
its representatives concerning Helix's assets, properties, business and
operations, unless readily ascertainable from public information, already known
or subsequently developed by GPC or the Principal Stockholders independently,
received from a third party not under an obligation to keep such information
confidential or otherwise required by law. If this Agreement terminates all
copies of any documents obtained from Helix, GPC or their representatives will
be returned, except that one copy thereof may be retained by counsel to the
party returning such documents in order to evidence compliance hereunder. The
obligations set forth in the previous two sentences of this Section 5.7 shall
survive termination of this Agreement.
<PAGE>
5.8 No Solicitation. GPC and the Principal Stockholders will not (i)
solicit, initiate or encourage discussions with any person, other than Helix,
relating to the possible acquisition of GPC or all or a material portion of the
assets or capital stock of GPC or any merger or other business combination with
GPC (an "Acquisition Transaction") or (ii) participate in any negotiations
regarding, or furnish to any other person information with respect to, any
effort or attempt by any other person to do or to seek any Acquisition
Transaction. GPC and the Principal Stockholders agree to inform Helix in
reasonable detail within one business day of their receipt of any offer,
proposal or inquiry relating to any Acquisition Transaction with an economic
value greater than fifty ($50,000,000) million.
5.9 Filings Under HSR Act. As soon as practicable, each of Helix and
GPC shall file with the Federal Trade Commission (the "FTC") and the Antitrust
Division of the Department of Justice (the "Antitrust Division") a premerger
notification form and any supplemental information (other than privileged
information) which may be requested in connection therewith pursuant to the HSR
Act, which filings and supplemental information will comply in all material
respects with the requirements of the HSR Act. Each of GPC and Helix shall
cooperate fully with the other in connection with the preparation of such
filings and shall use best efforts to respond to any requests for supplemental
information from the FTC or the Antitrust Division and to obtain early
termination of any waiting period applicable to the Merger under the HSR Act.
Any and all filing fees required to be paid in connection with the premerger
notification pursuant to the HSR Act shall be borne by Helix.
5.10 Stockholder Letter. GPC shall use its best efforts to deliver to
Helix prior to the Closing Date a Stockholder Letter from each individual or
entity who will receive Merger Consideration in substantially the form attached
hereto as Exhibit B (a "Stockholder Letter"), and each Principal Stockholder
agrees to deliver to Helix prior to the Closing Date, a Stockholder Letter.
5.11 Voting of GPC Stock. GPC shall use its best efforts to deliver to
Helix not later than the execution of this Agreement and in all events prior to
the Effective Date from each individual or entity listed on Schedule 5.11: (i) a
Stockholder Voting Agreement in substantially the form attached hereto as
Exhibit C and (ii) an Irrevocable Proxy in substantially the form attached
hereto as Exhibit D. Each Principal Stockholder agrees to execute such a
Stockholder Voting Agreement and Irrevocable Proxy.
5.12 Noncompetition Agreements. GPC shall use all reasonable efforts to
deliver to Helix prior to the Closing Date a Non-Disclosure, Non-Competition and
Developments Agreement in substantially the form attached hereto as Exhibit E-1
from each major Stockholder who is an employee of GPC listed on Schedule 5.12
for a term of three years from the Effective Time and a Non-Disclosure,
Non-Competition and Developments Agreement in substantially the form attached
hereto as Exhibit E2 from each employee or consultant listed on Schedule 5.12
for a term of two years from the Effective Time. Each Principal Stockholder
listed on Schedule 5.12 agrees to execute the relevant non-competition
agreement.
<PAGE>
5.13 Patent and Confidential Information Agreements. GPC shall deliver
to Helix prior to the Closing Date a Patent and Confidential Information
Agreement substantially in the form attached hereto as Exhibit F from each
employee of GPC and from each consultant of GPC identified on Schedule 5.13
attached hereto and shall use its best efforts to deliver to Helix prior to the
Closing Date a Patent and Confidential Information Agreement from each other
employee or consultant of Helix. In the event that any of the "other" employees
or consultants of GPC fails to execute and deliver said Patent and Confidential
Information Agreement prior to the Closing Date because such employee is
traveling or otherwise unavailable to execute such agreement or for other good
reason, then GPC agrees that all such employees and consultants shall execute
and deliver such Patent and Confidential Information Agreements within thirty
(30) days following the Closing Date.
5.14 Incentive Plans Termination and Release. GPC shall deliver to
Helix prior to the Closing Date an agreement of termination and release, in form
satisfactory to Helix, from each participant in the Incentive Plans, provided,
however, that each participant shall have received the independent compensation
consultant's calculation referred to in Section 1.6(b)(ii) prior to the Closing
Date.
5.15 Helix SEC Filings. Helix shall furnish GPC with a copy of each
document filed by it under the Exchange Act promptly after filing the same. All
filings made by Helix after the date hereof pursuant to the Exchange Act will be
made in a timely fashion, will comply as to form in all material respects with
the applicable provisions of the Exchange Act and the rules and regulations
thereunder and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
5.16 Publishing of Combined Financial Results. As soon as practicable
after the end of the first month following the Effective Time covering at least
thirty (30) days of operations, Helix shall use all reasonable commercial
efforts to publish financial results covering at least thirty (30) days of
combined operations of Helix and GPC.
5.17 Form S-3 Registration. Helix shall file a Registration Statement
on Form S-3 (or any similar registration statement then in effect) covering
Helix Common Stock issuable in the Merger and seek to have such Registration
Statement declared and remain effective in accordance with the provisions of the
Registration Rights Agreement attached hereto as Exhibit G.
5.18 Disclosure Statements. Prior to the Closing, GPC promptly will
supplement or amend the GPC Disclosure Schedule delivered pursuant hereto with
respect to any matter hereafter arising which, if existing, occurring or known
at the date of this Agreement, would have been required to be set forth or
described in such Schedule or which is necessary to correct any information in
such Schedule which has been rendered inaccurate thereby. No supplement or
amendment to the GPC Disclosure Schedule shall be deemed to supplement or amend
the GPC Disclosure Schedule for purposes of (i) determining the accuracy of any
of the representations and warranties made by GPC in this Agreement or (ii)
determining whether any condition to Helix's obligations to consummate the
Merger has been satisfied.
<PAGE>
5.19 Further Assurances. Each of the parties shall execute such
documents, further instruments of transfer and assignment and other papers and
take such further actions as may be reasonably required or desirable to carry
out the provisions hereof and the transactions contemplated hereby.
SECTION 6 - CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF EACH PARTY TO CONSUMMATE THE MERGER
The respective obligations of each party to consummate the Merger shall
be subject to the satisfaction or waiver, at or before the Effective Time, of
each of the following conditions:
6.1 Approvals. All required approvals of the stockholders of GPC and
all consents and approvals referred to in this Agreement shall have been
obtained.
6.2 HSR Act. Any waiting period applicable to the Merger under the HSR
Act shall have expired or terminated.
6.3 Absence of Order. No restraining order or injunction of any court
which prevents consummation of the Merger shall be in effect.
SECTION 7 - CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
HELIX AND ACQUISITION TO CONSUMMATE THE MERGER
The obligation of Helix and Acquisition to consummate the Merger is
subject to the satisfaction or waiver by Helix, at or before the Effective Time,
of the following conditions:
7.1 Representations, Warranties and Covenants. The representations and
warranties of GPC and the Principal Stockholders contained in this Agreement
shall be true and correct at the date of execution of this Agreement and on and
as of the Effective Time with the same force and effect as though made on and as
of the Effective Time (with such exceptions as may be permitted under or
contemplated by this Agreement) and there shall not have been any event or
circumstance resulting in a Material Adverse Effect relating to GPC since the
date hereof. GPC and the Principal Stockholders shall have performed and
complied with all covenants and agreements required by this Agreement to be
performed or complied with by them on or prior to the Effective Time.
7.2 Opinion of Counsel to GPC. Helix shall have received an opinion of
counsel to GPC, dated the Closing Date, in form and substance reasonably
acceptable to Helix.
7.3 Merger Documents. GPC shall have executed and delivered the
Merger Certificate referred to in Section 1.2.
7.4 Dissenting Shares. The Dissenting Shares shall not exceed five
percent (5%) of the shares of GPC Common Stock issued and outstanding or deemed
issued and outstanding on the Closing Date.
<PAGE>
7.5 Tax Opinion. Helix shall have received an opinion of its counsel,
dated the Closing Date, substantially to the effect that, on the basis of the
facts and representations set forth in such opinion, or set forth in writing
elsewhere and referred to therein, for federal income tax purposes the Merger
will constitute a reorganization within the meaning of Section 368(a) of the
Code and that no gain or loss will be recognized by and there will be no
corporate income tax liability to Helix or GPC by reason of the Merger.
7.6 Pooling of Interest Opinions. Helix shall have received a letter
from its accountants, Coopers & Lybrand LLP, expressing such accounting firm's
concurrence in management's assessment as to the appropriateness of the
treatment of the transactions contemplated herein under the pooling of interests
accounting methods. In addition, Helix should have received a letter from GPC's
accountants, Arthur Andersen LLP, expressing such accounting firm's concurrence
in GPC management's assessment that GPC qualifies as an entity that may be a
party to a business combination accounted for as a pooling of interests under
U.S. generally accepted accounting principles.
7.7 Title Insurance. Helix shall have received an owner's title
insurance policy (on the then-current ALTA form) from a nationally-recognized
title insurance company, which has been issued to GPC at normal title insurance
premium rates insuring fee simple title in GPC as of the Closing Date, free from
all Encumbrances and exceptions other than (i) the Permitted Liens and (ii) the
standard preprinted exclusions from coverage set forth in the then-current ALTA
form of owner's title insurance.
7.8 Escrow Agreement. The Escrow Agreement, substantially in the form
attached hereto as Exhibit A, shall have been executed and delivered by all
parties thereto.
7.9 Stockholder Letters. Helix shall have received from each
stockholder of GPC a Stockholder Letter in substantially the form attached
hereto as Exhibit B.
7.10 Noncompetition Agreements. Helix shall have received
Non-Disclosure, Non-Competition and Developments Agreements in substantially the
form attached hereto as Exhibit E-1 from each major Stockholder who is an
employee of GPC listed on Schedule 5.12 for a term of three years from the
Effective Time and Non-Disclosure, Non-Competition and Development Agreements in
substantially the form attached hereto as Exhibit E2 from each employee of GPC
listed on Schedule 5.12 for a term of two years from the Effective Time.
7.11 Patent and Confidential Information Agreements. Helix shall have
received Patent and Confidential Information Agreements in substantially the
form attached hereto as Exhibit F from each employee and consultant of GPC
identified on Schedule 5.13 attached hereto.
7.12 Incentive Plans Termination and Release. Helix shall have received
agreements of termination and release, in form satisfactory to Helix, from each
participant in the Incentive Plans, provided, however, that each participant
shall have previously received the independent compensation consultant's
calculation referred to in Section 1.6(b)(ii).
<PAGE>
7.13 Officer's Certificate. Helix shall have received a certificate
dated the Closing Date from the President of GPC stating that (i) the
representations and warranties and agreements of GPC contained in this Agreement
are true and correct, individually and in the aggregate, as of the Closing Date,
(ii) GPC has performed and complied with its obligations and agreements
hereunder, (iii) there has not been any event or circumstance resulting in a
Material Adverse Effect relating to GPC since the date of this Agreement and
(iv) the conditions set forth in Section 7.10 and 7.11 have been satisfied.
7.14 Secretary's Certificate. Helix shall have received a certificate
in form reasonably satisfactory to Helix dated the Closing Date from the
Secretary of GPC attaching (i) GPC's Articles of Incorporation, (ii) GPC's
bylaws, (iii) all corporate action taken in connection herewith, and (iv)
certifying the incumbency of GPC's officers who execute documents in connection
herewith.
7.15 Additional Items. GPC and each Principal Stockholder shall have
furnished Helix with such other certificates and documents as have been
reasonably requested by Helix.
SECTION 8 - CONDITIONS PRECEDENT TO THE OBLIGATION OF THE
GPC AND THE PRINCIPAL STOCKHOLDERS TO CONSUMMATE THE MERGER
The obligation of GPC and the Principal Stockholders to consummate the
Merger is subject to the satisfaction or waiver by them, at or before the
Effective Time, of the following conditions:
8.1 Representations, Warranties and Covenants. The representations and
warranties of Helix and Acquisition contained in this Agreement shall be true
and correct at the date of execution of this Agreement and on and as of the
Effective Time with the same force and effect as though made on and as of the
Effective Time (with such exceptions as may be permitted under or contemplated
by this Agreement). Each of Helix and Acquisition shall have performed and
complied with all covenants and agreements required by this Agreement to be
performed or complied with by it on or prior to the Effective Time.
8.2 Officer's Certificate. GPC shall have received a certificate dated
the Closing Date from the President of Helix stating that (i) the
representations and warranties and agreements of Helix contained in this
Agreement are true and correct, individually and in the aggregate, as of the
Closing Date and (ii) Helix has performed and complied with its obligations and
agreement hereunder and (iii) there has not been any event or circumstance
resulting in a Material Adverse Effect relating to Helix since the date of this
Agreement.
8.3 Opinion of Counsel to Helix. GPC shall have received an opinion of
counsel to Helix and Acquisition, dated the Closing Date, in form and substance
reasonably acceptable to GPC.
8.4 Tax Opinion. GPC shall have received an opinion of its counsel,
addressed to GPC and its stockholders and dated the Closing Date, substantially
to the effect that, on the basis of facts and representations set forth in such
opinion, or set forth in writing elsewhere and referred to therein, for federal
income tax purposes the Merger will constitute a reorganization within the
<PAGE>
meaning of Section 368(a) of the Code and no gain or loss will be recognized by
GPC or its stockholders by reason of the receipt of the shares of Helix Common
Stock in the Merger (it being understood that such opinion will not extend to
cash payments in lieu of fractional share interests and may not extend to shares
of Helix Common Stock received by holders of vested stock options to purchase
shares of GPC Stock; provided, however, that in the event that counsel is unable
or unwilling to deliver such opinion, then this condition shall be deemed
satisfied if such opinion is delivered by Helix's counsel.
8.5 Registration Rights Agreement. A registration rights agreement
substantially in the form attached hereto as Exhibit G shall have been executed
and delivered by Helix.
SECTION 9 - TERMINATION, AMENDMENT AND WAIVER
9.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time as follows:
(a) by either GPC or Helix, by written notice to the other, if the
Effective Time shall not have occurred on or before June 15, 1998, other than
due to issues with respect to the filing pursuant to the HSR Act; provided,
however, that the right to terminate this Agreement under this subsection shall
not be available to any party whose breach of a representation or warranty or
failure to fulfill any covenant or agreement under this Agreement has been the
cause of or resulted in the failure of the Merger to occur on or before such
date, with any such breach or failure by a Principal Stockholder being deemed a
breach or failure by GPC for this purpose.
(b) by GPC (provided that none of the Principal Stockholders nor GPC is
then in material breach of any representation, warranty, covenant or other
agreement contained herein), by written notice to Helix, if there shall have
been a material breach of any of the covenants or agreements or any of the
representations or warranties contained in this Agreement on the part of Helix,
which breach is either not cured within 20 days following written notice to
Helix or by its nature cannot be cured prior to the Closing; provided, however,
that GPC shall not have the right to terminate this Agreement pursuant to this
subsection because of the breach of any representation or warranty unless such
breach, together with all such other breaches, would entitle GPC not to
consummate the transactions contemplated hereby under Section 8.1;
(c) by Helix (provided that Helix is not then in material breach of any
representation, warranty, covenant or other agreement contained herein), by
written notice to GPC, if there shall have been a material breach of any of the
covenants or agreements or any of the representations or warranties contained in
this Agreement on the part of GPC or any Principal Stockholder, which breach is
either not cured within 20 days following written notice to GPC or by its nature
cannot be cured prior to the Closing; provided, however, that Helix shall not
have the right to terminate this Agreement pursuant to this subsection because
of the breach of any representation or warranty unless such breach, together
with all such other breaches, would entitle Helix not to consummate the
transactions contemplated hereby under Section 7.1;
<PAGE>
(d) by either Helix or GPC, by written notice to the other, if any
governmental entity shall have issued any injunction or taken any other action
permanently restraining, enjoining or otherwise prohibiting the consummation of
the Merger and such injunction or other action shall have become final and
nonappealable; or
(e) at any time with the written consent of Helix and GPC.
9.2 Effect of Termination. If this Agreement is terminated as provided
in Section 9.1, this Agreement shall forthwith become void and have no effect,
without liability on the part of any party, its directors, officers or
stockholders, other than the provisions of this Section 9.2, Section 5.4
relating to expenses and Section 5.7 relating to publicity and confidentiality
to the extent provided therein. Nothing contained in this Section 9.2 shall
relieve any party from liability for any breach of this Agreement occurring
before such termination.
9.3 Amendment. This Agreement may not be amended except by an
instrument signed by each party hereto; provided, however, that after adoption
of this Agreement by the stockholders of GPC, without the further approval of
the stockholders of GPC, no amendment may be made that (a) alters or changes the
amount or kind of consideration to be received as provided herein or (b) alters
or changes any of the terms of this Agreement if such alteration or change would
materially adversely affect the stockholders of GPC.
9.4 Waiver. At any time prior to the Effective Time, any party hereto
may, (a) extend the time for the performance of any of the obligations or other
acts of any other party hereto or (b) waive compliance with any of the
agreements of any other party or any conditions to its own obligations, in each
case only to the extent such obligations, agreements and conditions are intended
for its benefit; provided that any such extension or waiver shall be binding
upon a party only if such extension or waiver is set forth in a writing executed
by such party.
SECTION 10 - INDEMNIFICATION
10.1 Survival. Notwithstanding any right of any party to fully
investigate the affairs of the other party and notwithstanding any knowledge of
facts determined or determinable by such party pursuant to such investigation or
right of investigation, each party has the right to rely fully upon the
representations, warranties, covenants and agreements of each other party in
this Agreement or in any certificate, financial statement or other document
delivered by any party pursuant hereto. All such representations, warranties,
covenants and agreements shall survive the execution and delivery hereof and the
Closing hereunder, subject to the limitations set forth in Section 10.4. No
person shall have a right to recovery against any party (or any officer,
director, employee or agent of a party) other than through the exercise of the
indemnification rights set forth in Section 10.2, which shall constitute the
sole and exclusive remedy after the Closing Date for any breach by a party of
any representation, warranty or covenant contained herein or in any certificate
or other instrument delivered pursuant hereto, other than a fraudulent or
intentional breach.
<PAGE>
10.2 Obligation of GPC and the Stockholders to Indemnify.
(a) Subsequent to the Effective Time, the holders of GPC Stock
outstanding immediately prior to the Effective Time, shall solely, to the extent
of their interest in the Escrow Account held pursuant to the Escrow Agreement,
jointly and severally, indemnify and hold harmless Helix, Acquisition and the
Surviving Corporation (and their respective directors, officers, employees,
agents, affiliates and assigns) from and against all losses, liabilities,
damages, deficiencies, costs or expenses, including interest and penalties
imposed or assessed by any judicial or administrative body and reasonable
attorneys' fees, whether or not arising out of third-party claims and including
all amounts paid in investigation, defense or settlement of the foregoing
pursuant to this Section 10 ("Losses") based upon, arising out of or otherwise
in respect of any (i) inaccuracy in or breach of any representation, warranty or
covenant of GPC contained herein, (ii) adjustment based on the Closing Balance
Sheet per Section 1.6(b) or (iii) in any certificate delivered pursuant hereto.
(b) Subsequent to the Effective Time, each Principal
Stockholder shall solely to the extent of their proportionate interest in the
Escrow Account indemnify and hold harmless Helix, Acquisition and the Surviving
Corporation (and their respective directors, officers, employees, agents,
affiliates and assigns) from and against all Losses based upon, arising out of
or otherwise in respect of any inaccuracy in or breach of any representation,
warranty or covenant of such Principal Stockholder contained herein or in any
certificate delivered pursuant hereto.
10.3 Obligation of Helix and Acquisition to Indemnify. Subsequent to
the Effective Time, each of Helix and Acquisition severally agrees to indemnify
and hold harmless the holders of GPC Stock outstanding immediately prior to the
Effective Time (and their respective directors, officers, employees, agents,
affiliates and assigns) from and against any Losses based upon, arising out of
or otherwise in respect of any inaccuracy in or breach of any representation,
warranty covenant of Helix or Acquisition contained herein or in any certificate
delivered pursuant hereto.
10.4 Limitations on Indemnification. Notwithstanding the foregoing, the
right to indemnification under this Section 10 shall be subject to the following
terms:
(a) No indemnification shall be payable pursuant to Section
10.2 or Section 10.3 unless and to the extent that the amount of all claims for
indemnification pursuant to the applicable Section exceeds $500,000 in the
aggregate, whereupon indemnification pursuant to such sections shall be payable
for all such claims in excess of that amount.
(b) No indemnification shall be payable pursuant to Section
10.2 or Section 10.3 after the earlier of one year after the Effective Time or
the issuance of the first audited financial statements of the combined
corporation (the "Expiration Date"), except with respect to claims made prior to
the Expiration Date but not then resolved.
<PAGE>
(c) Except for claims arising out of any inaccuracy in or
breach of a representation or warranty of a Principal Stockholder, all
indemnification claims under Section 10.2 shall be satisfied in full from the
Escrow Account held pursuant to the Escrow Agreement and no person shall have
any right to recovery from any person who was a holder of GPC Stock immediately
prior to the Effective Time. In the case of inaccuracy or breach of a Principal
Stockholder representation or warranty, Helix and Acquisition may recover from
the Escrow Account held pursuant to the Escrow Agreement only that portion
allocable to the Principal Stockholder responsible for the inaccuracy or breach.
(d) The limitations of Sections 10.4(a), (b) and (c) (other
than the last sentence of Section 10.4(c)) shall not apply in the case of a
fraudulent or intentional misrepresentation or breach by any party, but no
person shall be liable for any such misrepresentation or breach by any other
person (except to the extent of its share of the Escrow Account held pursuant to
the Escrow Agreement if such misrepresentation or breach is by GPC).
(e) In determining the amount of any indemnity, there shall be
taken into account any tax benefit, insurance proceeds or other similar recovery
or offset realized, directly or indirectly, by the party to be indemnified.
10.5 Notice and Defense of Claims. Promptly after receipt of notice of
any claim, liability or expense for which a party seeks indemnification
hereunder, such party shall give written notice thereof to the indemnifying
party, but such notification shall not be a condition to indemnification
hereunder except to the extent of actual prejudice to the indemnifying party.
The notice shall state the information then available regarding the amount and
nature of such claim, liability or expense and shall specify the provision or
provisions of this Agreement under which the liability or obligation is
asserted. If within 30 days after receiving such notice the indemnifying party
gives written notice to the indemnified party stating that it intends to defend
against such claim, liability or expense at its own cost and expense, then
defense of such matter, including selection of counsel (subject to the consent
of the indemnified party which consent shall not be unreasonably withheld),
shall be by the indemnifying party and the indemnified party shall make no
payment on such claim, liability or expense as long as the indemnifying party is
conducting a good faith and diligent defense. Notwithstanding the foregoing, the
indemnified party shall at all times have the right to fully participate in such
defense at its own expense directly or through counsel; provided, however, if
the named parties to the action or proceeding include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate under applicable standards of professional
conduct, the expense of separate counsel for the indemnified party shall be paid
by the indemnifying party. If no such notice of intent to dispute and defend is
given by the indemnifying party, or if such diligent good faith defense is not
being or ceases to be conducted, the indemnified party shall, at the expense of
the indemnifying party, undertake the defense of such claim, liability or
expense with counsel selected by the indemnified party, and shall have the right
to compromise or settle the same exercising reasonable business judgment. The
indemnified party shall make available all information and assistance that the
indemnifying party may reasonably request and shall cooperate with the
indemnifying party in such defense.
<PAGE>
SECTION 11 - MISCELLANEOUS
11.1 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed given when so delivered in
person, by overnight courier, by facsimile transmission (with receipt confirmed
by telephone or by automatic transmission report) or two business days after
being sent by registered or certified mail (postage prepaid, return receipt
requested), as follows:
(a) if to Helix, to:
Helix Technology Corporation
Mansfield Corporate Center
Nine Hampshire Street
Mansfield, MA 02048-9171
Attention: Robert J. Lepofsky, Chief Executive
Officer
Telephone: 508/337-5252
Facsimile: 508/337-5175
with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, MA 02108
Attention: William Williams, II
Telephone: 617/573-0360
Facsimile: 617/227-4420
(b) if to GPC or the Principal Stockholders, to:
Granville - Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303-1398
Attention: Stephen L. Parrish, Vice President
Strategic Projects
Telephone: 303/443-7660
Facsimile: 303/443-3835
with a copy to:
Ireland, Stapleton, Pryor & Pascoe, P.C.
1675 Broadway, 26th Floor
Denver, CO 80202
Attention: Hardin Holmes
Telephone: 303/628-3688
Facsimile: 303/623-2062
Any party may by notice given in accordance with this Section 11.1 to the other
parties designate another address or person for receipt of notices hereunder.
11.2 Entire Agreement. This Agreement includes the exhibits and
schedules hereto, contains the entire agreement among the parties with respect
to the Merger and related transactions, and supersedes all prior agreements,
written or oral, with respect thereto.
<PAGE>
11.3 Governing Law. This Agreement is governed by the laws of the
State of Delaware.
11.4 Binding Effect; No Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable without the prior written
consent of the other parties hereto.
11.5 Variations in Pronouns. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the context
may require.
11.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
11.7 Disclosure Schedules. The Disclosure Schedules are a part of
this Agreement as if fully set forth herein.
11.8 Arbitration. If a dispute arises from or relates to this Agreement
or the breach thereof, whether of law or fact, of any nature whatsoever, and
such dispute cannot be settled through direct discussions between the parties,
the parties agree to settle the dispute by entering into binding arbitration
before the American Arbitration Association in accordance with the commercial
arbitration rules of the Association. Notice of demand for arbitration shall be
provided in writing to the other party. The arbitration shall be conducted
before a single arbitrator, selected jointly by the parties acting in good
faith. If the parties cannot agree on an arbitrator within 30 days of the giving
of the notice of demand for arbitration, each party shall select an arbitrator,
and the two selected arbitrators shall determine the final arbitrator. The
arbitrator shall be a person who is, or has served as, a senior officer for at
least three years of a company which is a supplier to the semi-conductor
industry. The arbitration shall be held in Denver, Colorado, if it is initiated
by Helix, or Boston, Massachusetts, if it is initiated by GPC. The parties agree
that facts and other information relating to any arbitration arising under this
Agreement shall be kept confidential to the fullest extent permitted by law. The
fees and expenses of any arbitration shall be borne by the parties in such
proportion as shall be determined by the arbitrator, or if there is no such
determination, then such fees and expenses shall be borne equally by the
parties.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the date first stated above.
HELIX TECHNOLOGY CORPORATION
By:/s/ Robert J. Lepofsky
- ------------------------------------------------
Name: Robert J. Lepofsky
Title: President and Chief Executive Officer
HELIX ACQUISITION CORPORATION
By:/s/ Robert J. Lepofsky
- ------------------------------------------------
Name: Robert J. Lepofsky
Title: President
GRANVILLE-PHILLIPS COMPANY
By:/s/ Dr. Daniel G. Bills
- ------------------------------------------------
Name: Dr. Daniel G. Bills
Title: Chairman
THE PRINCIPAL STOCKHOLDERS:
Gold I Trust
By:/s/ Brian M. Bills
Brian M. Bills
By:/s/ Anita Liane McMillin
Anita Liane McMillin, as Trustees
Gold II Trust
By:/s/ Brian M. Bills
Brian M. Bills
By:/s/ Anita Liane McMillin
Anita Liane McMillin, as Trustees
<PAGE>
Platinum I Trust
By:/s/ Diane L. Paukstis, Trustee
Diane L. Paukstis
By:/s/ Anita Liane McMillin, Trustee
Anita Liane McMillin
Platinum II Trust
By:/s/ Diane L. Paukstis, Trustee
Diane L. Paukstis
By:/s/ Anita Liane McMillin, Trustee
Anita Liane McMillin
Silver I Trust
By:/s/ Brian M. Bills, Trustee
Brian M. Bills
By:/s/ Diane L. Paukstis, Trustee
Diane L. Paukstis
Silver II Trust
By:/s/ Brian M. Bills, Trustee
Brian M. Bills
By:/s/ Diane L. Paukstis, Trustee
Diane L. Paukstis
/s/ Daniel G. Bills
Daniel G. Bills
/s/ Brian M. Bills
Brian M. Bills
<PAGE>
/s/ Diane L. Paukstis
Diane L. Paukstis
/s/ Anita Liane McMillin
Anita Liane McMillin
/s/ Stephen L. Parrish
Stephen L. Parrish
/s/ William A. Ringer
William A. Ringer
/s/ Robert M. Willis
Robert M. Willis
/s/ Michael D. Borenstein
Michael D. Borenstein
<PAGE>
Schedule 1.6(d)
Shares Deemed Outstanding
GRANVILLE-PHILLIPS COMPANY SHAREHOLDERS
Unvested
Voting Non-Voting Incentive
Shares Shares Total Shares
Adler, David B. 400 2,400 2,800 1,400
619 So. Bradford Street
N. Andover, MA 01845
(508) 688-8262
Arnold, Paul Clarke 2,300 13,800 16,100 4,200
4275 Grinnell Avenue
Boulder, CO 80303
(303) 499-5090
Bills, Brian M. 13,781 82,686 96,467 2,100
13488 Cascade Street
Broomfield, CO 80020
(303) 438-1098
Bills, Daniel G. 10,942 14,400 25,342 16,800
460 Lipan Way
Boulder, CO 80303
(303) 484-7086
Bills, June M. 8,542 0 8,542
460 Lipan Way
Boulder, CO 80303
(303) 494-7086
Black, Steven W. 825 4,950 5,775
507 South Clarkson Street
Denver, CO 80209
SSN ###-##-####
(303) 295-8519
Borenstein, Michael D. 7,449 44,694 52,143 16,800
7313 Panorama Drive
Boulder, CO 80303
(303) 494-2961
Carolyn R. Bundy 100 600 700
16 Curtis Court
Broomfield, CO 80020
(303)466-1260
<PAGE>
Bundy, Gordon L. & Carolyn R. 310 1,860 2,170
as Joint Tenants & Not as
Tenants in Common
16 Curtis Court
Broomfield, CO 80020
Dix, Scott R. 500 3,000 3,500
1340 N. Astor St., Apt. 2801
Chicago, IL 60610
(773) 244-3973
Donaldson, Edward E. & Virginia V. 2,500 15,000 17,500
as Joint Tenants with Right of
Survivorship not as Tenants
in Common
S.E. 500 Water Street
Pullman, WA 99163
(509) 332-0814
Eifler, Norman R. & Elsie B. 645 3,870 4,515
as Joint Tenants & Not as
Tenants in Common
7666 Spring Drive
Boulder, CO 80302
(303) 499-4650
Fiduciary Trust Co. of N.Y.
P.O. Box 3199
Church Street Station
New York, NY 10008
Dengel & Co. 1,200 7,200 8,400
Harland, Tamara A. 240 1,440 1,680
1395 Norwood Avenue
Boulder, CO 80302
(303) 449-6392
Hauser, Daniel F. 1,150 6,900 8,050
1999 Joslyn Place
Boulder, CO 80302
(303) 443-8352
Howard, Jerry B. 1,740 10,440 12,180 9,800
6217 Corinth Road
Longmont, CO 80501
(303) 776-6351
Kenigsberg, Kathryn L. 1,175 7,050 8,225
1721 Fairacres Drive
Greeley, CO 80631
(970) 392-0536
<PAGE>
McMillin, Anita Liane (Bills) 15,803 94,818 110,621
12448 Foxton Rd.
Foxton, CO 80441
(303) 816-0987
Mellecker, Richard L. 2,120 12,720 14,840
4620 Pacific Coast Highway
Torrance, CA 90505
(310) 316-7734
Menkick, George F. 12 72 84
11867 W. 85th Place
Arvada, CO 80005
(303) 431-1738
Miller, Donald R. 1,400 8,400 9,800
Trustee of the Adeline V. Miller
Family Testamentary Trust
25324 38th Avenue South
Kent, WA 98032
(206) 839-9072
Miller, Donald R. 1,400 8,400 9,800
Trustee of the Donald R. Miller
Revocable Living Trust, Dated:
October 15, 1992
25324 38th Avenue South
Kent, Washington 98032
O'Donoghue-Cooper, Eileen 640 3,840 4,480 1,400
1425 King Avenue
Boulder, CO 80302
(303) 443-7237
Parrish, Stephen L. 3,071 18,426 21,497 4,200
735 16th Street
Boulder, CO 80302
(303) 939-8664
Paukstis, Diane L. (Bills) 13,864 83,184 97,048
2225 Big Woods Dr.
Batavia, IL 60510
(630) 761-1448
Pingree, J. Frederick, Jr. 100 600 700
2570 E. 1300 S.
Salt Lake City, UT 84108
(801) 582-0291
Purvis, Sheila D. 180 1,080 1,260
6365 Laodicea Road
Longmont, CO 80503
(303) 651-7496 (H)
(303) 440-2800 (W)
<PAGE>
Ringer, William A. 10,306 61,836 72,142 16,800
516 Mapleton
Boulder, CO 80304
(303) 444-1420
Skiles, Kristie K. 1,368 8,208 9,576 5,600
5247 Quail Hollow Court
Boulder, CO 80301
(303) 530-7307
Stewart, William D. III &
Charlotte C. 176 1,056 1,232
as Joint Tenants & Not as
Tenants in Common
2994 75th Street
Boulder, CO 80301
(303) 665-1378
Warren, Keith A. & Betty B. 200 1,200 1,400
as Joint Tenants with Right
of Survivorship and Not as
Tenants in Common
5357 Hickory Avenue
Boulder, CO 80303
(303) 494-6231
Willis, Robert M. 6,250 37,500 43,750 16,800
2544 Sherborne Drive
Belmont, CA 94002
(408) 727-7162
Gold I Trust 0 17,084 17,084
Brian M. Bills and
Anita Liane McMillin, Trustees
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303
Gold II Trust 0 17,084 17,084
Brian M. Bills and
Anita Liane McMillin, Trustees
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303
Platinum I Trust 0 17,084 17,084
Diane L. Paukstis and
Anita Liane McMillin, Trustees
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303
<PAGE>
Platinum II Trust 0 17,084 17,084
Diane L. Paukstis and
Anita Liane McMillin, Trustees
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303
Silver I Trust
Brian M. Bills and 0 17,084 17,084
Diane L. Paukstis, Trustees
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303
Silver II Trust
Brian M. Bills and 0 17,084 17,084
Diane L. Paukstis, Trustees
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303
------ ------- ------- ------
110,689 664,134 774,823 95,900
<PAGE>
Schedule 5.11
Stockholder Voting Agreement and Irrevocable Proxy
Gold I Trust
Gold II Trust
Platinum I Trust
Platinum II Trust
Silver I Trust
Silver II Trust
Daniel G. Bills
Brian M. Bills
Diane L. Paukstis
Anita Liane McMillin
Stephen L. Parrish
William A. Ringer
Robert M. Willis
Michael D. Borenstein
<PAGE>
Schedule 5.12
Non-Competition Agreements
A. Key Employees Executing Two-Year Non-Competition Agreements
Eileen O'Donoghue-Cooper
Kristie K. Skiles
Richard L. Mellecker
B. Major Stockholders Executing Three-Year Non-Competition Agreements
Michael D. Borenstein
Robert M. Willis
William A. Ringer
Daniel G. Bills
Brian M. Bills
Stephen L. Parrish
Jerry B. Howard
Paul C. Arnold
<PAGE>
Schedule 5.13
Patent and Confidential Information Agreements
Paul C. Arnold
Brian M. Bills
Daniel G. Bills
Stephen C. Blouch
Michael Borenstein
Steven C. Borichevsky
Albert R. Filippelli
Jerry B. Howard
James G. Lindgren
Stephen L. Parrish
William A. Ringer
Richard M. Roth
Ronald P. Rudiak
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of May 7, 1998 is between
Helix Technology Corporation (the "Company"), a Delaware corporation, and the
persons named on Schedule A attached hereto who have executed and delivered a
Stockholder Letter (the "Holders"). This Agreement is made pursuant to the
Agreement and Plan of Merger dated as of April 16, 1998 (the "Merger Agreement")
among the Company, Helix Acquisition Corporation ("Acquisition Corp."), a
Washington corporation and wholly-owned subsidiary of the Company, Granville -
Phillips Company ("GPC"), a Washington corporation, and the principal
stockholders of GPC named therein. The Merger Agreement provides for the
Company's acquisition of GPC through the merger of Acquisition Corp. into GPC
(the "Merger") and the exchange by the Holders of their shares of common stock
of GPC for shares of common stock of the Company (the "Helix Shares"). In order
to induce GPC to enter into the Merger Agreement, the Company has agreed to
provide the Holders with the registration rights set forth in this Agreement.
The parties hereto agree as follows:
Section 1. Definitions. As used in this Agreement, the following
terms have the following meanings:
"Commission" means the United States Securities and Exchange
Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the Commission thereunder.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, and by all other
amendments and supplements to the prospectus, including post-effective
amendments, and in each case including all material incorporated by reference or
deemed to be incorporated by reference in such prospectus.
"Registration Statement" means any registration statement of the
Company that covers any of the Helix Shares pursuant to the provisions of this
Agreement and all amendments and supplements to any such registration statement,
including post-effective amendments, in each case including the Prospectus, all
exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the Commission thereunder.
<PAGE>
Section 2. Resale Registration.
(a) As soon as practicable after the effective date of the Merger, the
Company will file a Registration Statement on Form S-3 (or any similar
registration statement then in effect) under the Securities Act covering the
resale by each Holder of such Holder's Helix Shares from time to time in
transactions not involving an underwritten public offering and will thereafter
use reasonable efforts to cause the Registration Statement to be declared
effective by the Commission as soon as practicable thereafter and to keep the
Registration Statement continuously effective until the earlier of (x) the date
on which the Holder no longer holds any Helix Shares registered under the
Registration Statement or (y) the date on which the Helix Shares would become
eligible for sale pursuant to Rule 144 (or any similar provision then in effect)
under the Securities Act without regard to any tolling provisions that may be
applicable. In this connection:
(i) The Company will promptly (subject to Section 2(b))
prepare and file with the Commission such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep
the Registration Statement effective for as long as such registration
is required to remain effective hereunder; will cause the Prospectus to
be supplemented by any required Prospectus supplement, and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities
Act; and will comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all Helix Shares
covered by such Registration Statement during the applicable period in
accordance with the intended methods of disposition by the Holders set
forth in the Registration Statement or supplement to the Prospectus.
(ii) The Company will promptly furnish to each Holder such
number of copies of the Prospectus (including each preliminary
Prospectus) and any amendments or supplements thereto as the Holder may
reasonably request in order to facilitate the public sale or other
disposition of the Helix Shares being sold by the Holder.
(iii) The Company will, on or prior to the date on which the
Registration Statement is declared effective, use reasonable efforts to
register or qualify the Helix Shares covered by the Registration
Statement under such other securities or "blue sky" laws of such states
of the United States as any Holder requests; provided, however, that
the Company shall not be required to qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify
or to file any general consent to service of process.
(iv) The Company will timely file all documents required to be
filed by it under the Exchange Act.
(v) The Company will promptly give notice to each Holder (1)
when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed and, with respect to the Registration
Statement or any post-effective amendment, when the same has become
effective, (2) of any request by the Commission or any state securities
authority for amendments and supplements to the Registration Statement
and Prospectus or for additional information after the Registration
<PAGE>
Statement has become effective, (3) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement, (4) of the issuance by any state securities commission or
other regulatory authority of any order suspending the qualification or
exemption from qualification of any of the Helix Shares under state
securities or "blue sky" laws and (5) of the happening of any event
which makes any statement made in the Registration Statement or related
Prospectus untrue or which requires the making of any changes in the
Registration Statement or Prospectus so that they will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. As soon as practicable following expiration of the
Suspension Period (as defined below), the Company will prepare and file
with the Commission and furnish a supplement or amendment to such
Prospectus so that, as thereafter deliverable to the purchasers of the
Helix Shares, such Prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statement therein, in light of the circumstances under which they were
made, not misleading.
(b) Upon receipt of a notice under clauses (2) through (5) of Section
2(a)(iv) (a "Suspension Notice"), each Holder will forthwith discontinue
disposition of the Helix Shares pursuant to the Registration Statement until the
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 2(a)(iv) or until the Holder is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company, the Holder
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in the Holder's possession, of the Prospectus
covering the Helix Shares current at the time of receipt of such notice;
provided, however, that in no event will the period from the date on which any
holder receives a Suspension Notice to the date on which any Holder receives
either the Advice or copies of the supplemented or amended Prospectus
contemplated by Section 2(a)(iv) (the "Suspension Period") exceed 90 days.
Section 3. Registration Expenses. The Company will bear all expenses
incurred in connection with the registration of the Helix Shares pursuant to
Section 2, including without limitation all printing, legal and accounting
expenses incurred by the Company and all registration and filing fees imposed by
the Commission, any state securities commission or The Nasdaq National Market
or, if the common stock of Helix is not then listed on The Nasdaq National
Market, the principal national securities exchange or national market system on
which the common stock is then traded or quoted. Each Holder will be responsible
for any brokerage commissions and taxes of any kind (including, without
limitation, transfer taxes) with respect to any disposition, sale or transfer of
the Holder's Helix Shares and for any legal, accounting and other expenses
incurred by the Holder.
Section 4. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the full extent permitted by law, each Holder, its partners,
officers, directors, trustees, stockholders, employees and agents, and each
person who controls such Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
<PAGE>
with, or is controlled by, such Holders, together with the partners, officers,
directors, trustees, stockholders, employees and agents of such controlling
person (collectively, the "Controlling Persons"), from and against all losses,
claims, damages, liabilities and expenses, including without limitation
reasonable legal fees and expenses incurred by any Holder or any such
Controlling Person documented in writing, (collectively, the "Damages") to which
such Holder and any such Controlling Persons may become subject under the
Securities Act or otherwise, insofar as such Damages (or proceedings in respect
thereof) arise out of or are based upon any untrue or alleged untrue statement
of material fact contained in the Registration Statement (or any amendment
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such Damages arise out of or are based upon any such untrue
statement or omission based upon information relating to such Holder furnished
in writing to the Company by such Holder specifically for use therein; provided,
however, that the Company shall not be liable to any Holder under this Section
4(a) to the extent that any such Damages were caused by the fact that such
Holder sold Helix Shares to a person as to whom it shall be established that
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus as then amended or supplemented if, and only if
(i) the Company has previously furnished copies of such amended or supplemented
Prospectus to such Holder and (ii) such Damages were caused by any untrue
statement or omission or alleged untrue statement or omission contained in the
Prospectus so delivered which was corrected in such amended or supplemented
Prospectus.
(b) Indemnification by the Holders. Each Holder agrees, severally and
not jointly, to indemnify and hold harmless the Company, its directors, officers
and each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Holder, but only with
reference to information relating to such Holder furnished in writing to the
Company by such Holder specifically for use in the Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto); provided, however, that such selling Holder shall not be obligated to
provide such indemnity to the extent that such Damages result from the failure
of the Company to promptly amend or take action to correct or supplement the
Registration Statement or Prospectus on the basis of corrected or supplemental
information provided by such Holder to the Company expressly for such purpose.
In no event shall the liability of any Holder of Helix Shares hereunder be
greater in amount than the amount of the proceeds received by such Holder upon
the sale of the Helix Shares giving rise to such indemnification obligation.
(c) Procedure. Each party entitled to indemnification under this
Section 4 (the "Indemnified Party") shall give prompt notice of any claim as to
which indemnification may be sought to the party required to provide
indemnification (the "Indemnifying Party"), provided that failure to give such
notice shall not relieve the Indemnifying Party of its obligations hereunder
except to the extent of actual prejudice. The Indemnifying Party shall be
entitled to assume the defense of any such claim with counsel reasonably
satisfactory to the Indemnified Party. The Indemnified Party may participate in
<PAGE>
such defense at its own expense, provided that the Indemnifying Party will pay
such expense if representation of the Indemnified Party by the counsel retained
by the Indemnifying Party would be inappropriate due to actual or potential
differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding. No Indemnifying Party shall,
except with the consent of the Indemnified Party, agree to any settlement that
does not include a release of the Indemnified Party from all liability in
respect of such claim, and the Indemnified Party shall not settle such claim
without the prior written consent of the Indemnifying Party.
Section 5. Miscellaneous.
(a) Amendments and Waivers. This Agreement may not be amended, modified
or supplemented except in writing signed by the party to bound thereby.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telecopier, registered or certified
mail (return receipt requested), postage prepaid or courier to the parties at
their respective addresses set forth on the signature pages hereof (or at such
other address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof).
All such notices and communications shall be deemed to have been received at the
time delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
if telecopied; and on the next business day if timely delivered to a courier
guaranteeing overnight delivery.
(c) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of the Company and the heirs
and legal representatives of the Holders. This Agreement may not be assigned by
any Holder and any attempted assignment shall be void and of no effect and shall
terminate all obligations of the Company hereunder with respect to such Holder.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts without regard to principles of conflicts of law.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed as of the date stated above.
THE COMPANY:
HELIX TECHNOLOGY CORPORATION
Mansfield Corporate Center
Nine Hampshire Street
Mansfield, MA 02048-9171
By:/s/ Robert J. Lepofsky
Robert J. Lepofsky
President and Chief Executive Officer
<PAGE>
SCHEDULE A
Holders of Helix Shares
David B. Adler
Paul Clarke Arnold
Brian M. Bills
Daniel G. Bills
June M. Bills
Steven W. Black
Michael D. Borenstein
Carolyn R. Bundy
Gordon L. & Carolyn R. Bundy
as Joint Tenants & Not
as Tenants in Common
Scott R. Dix
Edward E. & Virginia V. Donaldson
as Joint Tenants with Right
of Survivorship
Norman R. & Elsie B. Eifler
as Joint Tenants & Not as
Tenants in Common
Fiduciary Trust Co. of N.Y.,
Degel & Co.
Tamara A. Harland
Daniel F. Hauser
Jerry B. Howard
Kathryn L. Kenigsberg
Anita Liane (Bills) McMillin
Richard L. Mellecker
<PAGE>
George F. Menkick
Donald R. Miller, Trustee
of the Adeline V. Miller
Family Testamentary Trust
Donald R. Miller, Trustee
of the Donald R. Miller
Revocable Living Trust,
Dated: October 15, 1992
Eileen O'Donoghue-Cooper
Stephen L. Parrish
Diane L. (Bills) Paukstis
J. Frederick Pingree, Jr.
Sheila D. Purvis
William A. Ringer
Kristie K. Skiles
William D. III & Charlotte C.
Stewart, as Joint Tenants &
Not as Tenants in Common
Keith A. & Betty B. Warren
as Joint Tenants with
Right of Survivorship and
Not as Tenants in Common
Robert M. Willis
Gold I Trust
Brian M. Bills and Anita
Liane McMillin, Trustees
Gold II Trust
Brian M. Bills and Anita
Liane McMillin, Trustees
<PAGE>
Platinum I Trust
Diane L. Paukstis and
Anita Liane McMillin, Trustees
Platinum II Trust
Diane L. Paukstis and
Anita Liane McMillin, Trustees
Silver I Trust
Brian M. Bills and Diane L. Paukstis,
Trustees
Silver II Trust
Brian M. Bills and Diane L. Paukstis,
Trustees
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into on May 7, 1998 by and
among Helix Technology Corporation, a Delaware corporation ("Helix"), and
Stephen L. Parrish, as the representative of the stockholders (the "Stockholder
Representative") of the Granville-Phillips Company, a Washington corporation
("GPC"), and State Street Bank and Trust Company, as escrow agent (the "Escrow
Agent").
WHEREAS, pursuant to the Agreement and Plan of Merger dated as of April
16, 1998 (the "Merger Agreement") by and among Helix, Helix Acquisition
Corporation, a Washington corporation and wholly owned subsidiary of Helix, GPC
and certain stockholders of GPC, Helix Acquisition Corporation has been merged
into GPC (the "Merger"). Capitalized terms used herein and not otherwise defined
have the meanings assigned to them in the Merger Agreement.
WHEREAS, pursuant to Section 1.12 of the Merger Agreement, one hundred
nineteen thousand one hundred forty-five (119,145) shares of Helix Common Stock
(the "Escrow Shares") are being deposited by Helix on behalf of the Stockholders
(the "Stockholders") of GPC hereunder to provide for the indemnification of
Helix under Section 10, of the Merger Agreement. A list of all Stockholders and
their pro rata interest in the Escrow Shares is attached hereto as Schedule I.
NOW THEREFORE, the parties hereto agree as follows:
1. Establishment of Escrow. Helix has delivered to the Escrow Agent and
the Escrow Agent acknowledges receipt of the Escrow Shares in the form of a
single stock certificate. The Escrow Shares shall be held in escrow in the name
of the Escrow Agent or its nominee, subject to the terms and conditions set
forth herein. Unless and until the Escrow Shares are returned to Helix or
distributed to the Stockholders pursuant to the terms of this Agreement, the
Escrow Agent shall vote the Escrow Shares in accordance with the written
instructions of the Stockholders as to their pro rata interest in the Escrow
Fund as set forth in Schedule I.
2. Amounts Earned on Escrow Shares; Tax Matters. All amounts earned on
the Escrow Shares (cash dividends and other distributions) shall be distributed
pro rata to the Stockholders from time to time upon request of the Stockholder
Representative. The parties agree that to the extent permitted by applicable
law, earnings will be allocatable for tax purposes to the Stockholders in
proportions to their holdings and the Stockholders will include all amounts
earned on the Escrow Shares in their gross income for federal, state and local
income tax (collectively, "income tax") purposes and pay any income tax
resulting therefrom. The parties agree that the Escrow Agent will be furnished
with all information necessary to enable it to comply with the reporting and
backup withholding requirements of the Internal Revenue Code of 1986, as
amended.
<PAGE>
3. Claims Against Escrow Shares.
(a) At any time or times prior to the Expiration Date (as
defined below), Helix may make claims against the Escrow Shares for amounts due
for indemnification under Section 10 of the Merger Agreement. Helix shall notify
the Stockholder Representative and the Escrow Agent in writing of each such
claim, including a brief description of the amount and nature of such claim.
Each such notice delivered to the Escrow Agent by Helix shall contain a
representation of Helix to the effect that Helix has delivered a copy of such
notice to the Stockholder Representative prior to or simultaneously with its
delivery to the Escrow Agent. In the event that the amount subject to the claim
is unliquidated, Helix shall make a good faith estimate as to the amount of the
claim for purposes of determining the number of Escrow Shares to be withheld by
the Escrow Agent if such claim is not resolved or otherwise adjudicated by the
Expiration Date. If the Stockholder Representative disputes such claim, the
Stockholder Representative shall give written notice thereof to Helix and to the
Escrow Agent within thirty days after the date Helix's notice of claim was
delivered to the Stockholder Representative, in which case the Escrow Agent
shall continue to hold the Escrow Shares in accordance with the terms of this
Agreement; otherwise, such claim shall be deemed to have been acknowledged to be
payable from the Escrow Shares in the full amount set forth in the claim and the
Escrow Agent shall pay such claim to Helix as soon as practicable after
expiration of that thirty-day period. The Escrow Agent shall effect such payment
of Escrow Shares to Helix by surrendering the certificate representing the
Escrow Shares to Helix's transfer agent for cancellation with instructions to
issue a new certificate to the Escrow Agent for the number of Escrow Shares
remaining after giving effect to such payment. If the amount of the claim
exceeds the aggregate value of the Escrow Shares, the Escrow Agent shall have no
liability or responsibility for any deficiency. The value per share of the
Escrow Shares for purposes of this Agreement shall be $20.00 (the "Agreed Share
Value"). All claims paid out of the Escrow Shares shall be rounded to the
nearest whole share. Under no circumstances shall the Stockholders or the
Stockholder Representative have any right to substitute other property for the
Escrow Shares or to change the Agreed Share Value.
(b) If the Stockholder Representative gives notice to Helix
and the Escrow Agent pursuant to Section 3(a) disputing a Helix claim, no
distribution of Escrow Shares shall be made by the Escrow Agent to Helix or to
the Stockholders of the Set Aside Amount under Section 4(a) with respect to such
claim until either (i) such disputed claim has been resolved as evidenced by a
written notice executed by Helix and the Stockholder Representative instructing
the Escrow Agent as to the distribution of such Set Aside Amount or portion
thereof or (ii) such dispute shall have been adjudicated in accordance with the
arbitration procedures described in Section 4(b).
<PAGE>
4. Disputed Claims.
(a) If the Stockholder Representative disputes an
indemnification claim of Helix as above provided and subject to Section 3, the
Escrow Agent shall allocate a portion of the Escrow Shares equal to the amount
of the claim as set forth in the notice of the claim (the "Set Aside Amount").
In the event Helix notifies the Escrow Agent in writing that it has made
out-of-pocket expenditures or anticipates that it will incur legal expenses in
connection with any such disputed claim with respect to which it is entitled to
be indemnified under the Merger Agreement, a portion of the Escrow Fund equal to
such incurred or anticipated expenditures as set forth in such notification
shall also be added to and become a part of the Set Aside Amount, provided that
in the event that it shall be agreed (as evidenced by a written notice executed
by Helix and the Stockholder Representative as described in Section 3(b)) or
determined through an arbitration proceeding described in Section 4(b) that
Helix is not entitled to indemnification with respect to such claim, Helix shall
not be entitled to such shares.
(b) If the Escrow Agent does not receive written notice
executed by Helix and the Stockholder Representative within sixty days after the
Stockholder Representative sends notice of such dispute to the effect that the
disputed indemnification claim has been resolved, the indemnification claim
shall be referred to an arbitrator chosen by agreement of the Stockholder
Representative and Helix. If no agreement is reached regarding selection of the
arbitrator within thirty days after written request from either party to the
other, Helix or the Stockholder Representative may submit the matter in dispute
to the American Arbitration Association, to be settled by arbitration in Boston,
Massachusetts in accordance with the commercial arbitration rules of the
Association. Helix and the Stockholder Representative agree to act in good faith
to mutually select an arbitrator. The fees and expenses of the arbitrator for
any arbitration shall be borne by the Stockholders and Helix in such proportions
as shall be determined by the arbitrator, or if there is no such determination,
then such fees and expenses shall be borne equally by the Stockholders and
Helix. The determination of the arbitrator as to the amount, if any, of the
indemnification claim that is properly allowable shall be conclusive and binding
upon the parties hereto and judgment may be entered thereon in any court having
jurisdiction. The Escrow Agent shall make payment of such claim to Helix out of
the Set Aside Amount and make payment of the fees and expenses of the
arbitration out of the Escrow Fund, in each case as and to the extent allowed as
soon as practicable following its receipt of a copy of the arbitration award
determination.
5. Termination.
(a) On the earlier of (i) the first anniversary of the Closing
Date (as defined in the Merger Agreement), or (ii) delivery to the Escrow Agent
of the completed next audited financial statements of Helix (the "Expiration
Date"), the Escrow Agent shall deliver the Escrow Shares to the Stockholders
according to their pro rata interests as set forth on Schedule I, provided that
in the event that the Escrow Agent has received notice pursuant to Section 3
above made prior to the Expiration Date, but not resolved by the Expiration
Date, the Escrow Agent shall retain and continue to hold in escrow the Escrow
Shares having a value based on the Agreed Share Value not greater than 15% of
the amount of the indemnification claim for which notice had been received.
<PAGE>
(b) Any portion of the Escrow Shares retained by the Escrow
Agent after the earlier of (i) the first anniversary of the Closing Date or (ii)
the Expiration Date, shall continue to be so retained until such time or times
as the Escrow Agent shall receive (1) a joint written instrument signed by Helix
and the Stockholder Representative in which case the Escrow Agent shall proceed
in accordance with such joint written instruction, or (2) notice that a
judgment, order or decree has been entered or made by any court affecting the
Escrow Shares which in the opinion of legal counsel chosen by the Escrow Agent
is binding upon the Escrow Agent and not subject to further appeal or
modification before compliance is required therewith, in which case the Escrow
Agent shall release and deliver the Escrow Shares to the Stockholders or Helix
in compliance with such judgment, and this Agreement shall terminate.
6. The Escrow Agent.
(a) Notwithstanding anything herein to the contrary, the
Escrow Agent shall promptly dispose of all or any part of the Escrow Shares as
directed by a writing jointly signed by the Stockholder Representative and
Helix. The reasonable fees and expenses of the Escrow Agent in connection with
its execution and performance of this Agreement as set forth on Schedule II
hereto shall be borne by Helix. The Escrow Agent shall not be liable for any act
or failure to act under this Agreement, including any and all claims made
against the Escrow Agent as a result of its holding the Escrow Shares in its own
name, except for its own gross negligence or willful misconduct. The Escrow
Agent shall not be liable for, and Helix and the Stockholders shall agree,
jointly and severally, to indemnify and hold harmless the Escrow Agent and its
directors, employees, officers, agents, successors and assigns against, any
losses or claims (including reasonable out-of-pocket expenses and attorney fees)
arising out of any action taken or omitted in good faith hereunder and
reasonable costs of investigation and counsel fees and expenses which may be
imposed on the Escrow Agent or reasonably incurred by it in connection with its
acceptance of this appointment or performance of its duties hereunder. The
Escrow Agent may decline to act and shall not be liable for failure to act if in
doubt as to its duties under this Agreement. The Escrow Agent may act upon any
instrument or signature believed by it to be genuine and may assume that any
person purporting to give any notice or instruction hereunder, reasonably
believed by it to be authorized, has been duly authorized to do so. The Escrow
Agent's duties shall be determined only with reference to this Agreement and
applicable law and the Escrow Agent is not charged with knowledge of or any
duties or responsibilities in connection with any other document or agreement,
including without limitation, the Merger Agreement.
(b) The Escrow Agent shall have the right at any time to
resign hereunder by giving written notice of its resignation to the parties
hereto, at the addresses set forth herein or at such other address as the
parties shall provide, at least thirty days prior to the date specified for such
resignation to take effect. In such event Helix shall with the approval of the
Stockholder Representative, which approval shall not be unreasonably withheld,
appoint a successor escrow agent within that thirty-day period; if Helix does
not designate a successor escrow agent within such period, the Escrow Agent may
appoint a successor escrow agent. Upon the effective date of such resignation,
the Escrow Fund then held by the Escrow Agent hereunder shall be delivered by it
to such successor escrow agent or as otherwise shall be designated in writing by
Helix and the Stockholder Representative.
<PAGE>
(c) In the event that the Escrow Agent should at any time be
confronted with inconsistent or conflicting claims or demands by the other
parties hereto, the Escrow Agent shall have the right to interplead the parties
in any Massachusetts court or any court of competent jurisdiction and request
that such court determine the respective rights of the parties with respect to
this Agreement and, upon doing so, the Escrow Agent shall be released from any
obligations or liability to the other parties as a consequence of any such
claims or demands.
(d) The Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder, either directly or
by or through its agents or attorneys. Nothing in this Agreement shall be deemed
to impose upon the Escrow Agent any duty to qualify to do business or to act as
fiduciary or otherwise in any jurisdiction other than the Commonwealth of
Massachusetts. The Escrow Agent shall not be responsible for and shall not be
under a duty to examine, inquire into or pass upon the validity, binding effect,
execution or sufficiency of this Agreement or of any amendment or supplement
hereto.
7. Stockholder Representative.
(a) In the event the Stockholder Representative shall die or
resign or otherwise terminate his status as such, his successor shall be Kristie
K. Skiles or such other person as the Stockholder Representative may appoint. If
the successor Stockholder Representative shall die or resign or otherwise
terminate his status as such, his successor shall be any person appointed by
such successor Stockholder Representative or, in the case of his failure to
appoint a successor after a vacancy has been created, elected by the vote or
written consent of a majority in interest of the Stockholders. All decisions of
the Stockholder Representative shall be binding upon the Stockholders. The
Stockholder Representative shall keep the Stockholders reasonably informed of
his or her material decisions.
(b) The Stockholder Representative is authorized to take any
action deemed by him appropriate or necessary to carry out the provisions of,
and to determine the rights of the Stockholders under this Agreement. The
Stockholder Representative shall serve as the agent of the Stockholders for all
purposes related to this Agreement, including without limitation service of
process upon the Stockholders. By execution of this Agreement, the Stockholder
Representative accepts and agrees to diligently discharge the duties and
responsibilities of the Stockholder Representative set forth in this Agreement
without compensation for his services hereunder. The authorization and
designation of the Stockholder Representative under this Section 7(b) shall be
binding upon the successors and assigns of each Stockholder. Helix and the
Escrow Agent shall be entitled to rely upon such authorization and designation
and shall be fully protected in dealing with the Stockholder Representative, and
shall have no duty to inquire into the authority of any person reasonably
believed by any of them to be the Stockholder Representative.
(c) The Stockholder Representative (i) shall not be liable to
any of the Stockholders for any error of judgment, or action taken or omitted in
good faith, or mistake of fact or law unless caused by his own gross negligence
or willful misconduct, (ii) shall be entitled to treat as genuine any letter or
other document furnished to him by Helix, the Stockholders or the Escrow Agent
<PAGE>
and believed by him to be genuine and to have been signed and presented by the
proper party or parties, and (iii) shall be reimbursed, upon presentation of an
invoice, from the Escrowed Shares, in an amount sufficient after sale of such
released shares, to pay all counsel fees and other out-of-pocket expenses
incurred by the Stockholder Representative in connection with this Agreement.
(d) The Stockholder Representative, warrants and agrees that
he is authorized to execute this agreement for and on behalf of the
Stockholders.
8. Governing Law. This Agreement is governed by the laws of the
Commonwealth of Massachusetts without regard to its conflict of law provisions,
and shall inure to the benefit of and be binding upon the successors, assigns,
heirs and personal representatives of the parties hereto.
9. Counterparts. This Agreement may be executed in two or more
counterparts, all of which documents shall be considered one and the same
document.
10. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed given when delivered in
person, by overnight courier, by facsimile transmission (with receipt confirmed
by telephone or by automatic transmission report) or five business days after
being sent by registered or certified mail (postage prepaid, return receipt
requested), as follows:
(a) if to Helix, to:
Helix Technology Corporation
Mansfield Corporate Center
Nine Hampshire Street
Mansfield, MA 02048
Attention: Robert J. Lepofsky Chief Executive Officer
Telecopy: (508) 337-5175
with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, MA 02108-3190
Attention: William Williams II
Telecopy: (617) 227-4420
(b) if to the Stockholder Representative:
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303-1398
Attention: Stephen L. Parrish
Telecopy: (303) 443-3835
with a copy to:
Ireland, Stapleton, Pryor & Pascoe, P.C.
1675 Broadway, 26th Floor
Denver, CO 80202
Attention: Hardin Holmes
Telecopy: (303) 623-2062
<PAGE>
(c) if to the Escrow Agent:
State Street Bank and Trust Company
Corporate Trust
Two International Place
Boston, MA 02110
Attention: Ron Chin
Telecopy: (617) 664-5365
Any party may by notice given in accordance with this section to the other
parties designate another address or person for receipt of notices hereunder.
[Remainder of Page Intentionally Left Blank]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first above written.
HELIX TECHNOLOGY CORPORATION
By: /s/ Robert J. Lepofsky
Robert J. Lepofsky
President and Chief Executive Officer
STOCKHOLDER REPRESENTATIVE:
/s/ Stephen L. Parrish
Stephen L. Parrish
THE ESCROW AGENT:
STATE STREET BANK AND TRUST COMPANY
By: /s/ Daniel Golden
Authorized Signatory
Name: Daniel Golden
Title: Assistant Vice President
<PAGE>
THE STOCKHOLDERS:
By: /s/ Stephen L. Parrish
Stephen L. Parrish
Stockholder Representative
<PAGE>
SCHEDULE I
Pro Rata Interest
Stockholder Number of Shares
Adler, David B.
619 So. Bradford Street
N. Andover, MA 01845
(508) 688-8262
Arnold, Paul Clarke
4275 Grinnell Avenue
Boulder, CO 80303
(303) 499-5090
Bills, Brian M.
13488 Cascade Street
Broomfield, CO 80020
(303) 438-1098
Bills, Daniel G.
460 Lipan Way
Boulder, CO 80303
(303) 494-7086
Bills, June M.
460 Lipan Way
Boulder, CO 80303
(303) 494-7086
Black, Steven W.
507 South Clarkson Street
Denver, CO 80209
(303) 295-8519
Borenstein, Michael D.
7313 Panorama Drive
Boulder, CO 80303
(303) 494-2961
Bundy, Carolyn R.
16 Curtis Court
Broomfield, CO 80020
(303) 466-1260
<PAGE>
Bundy, Gordon L. & Carolyn R.
as Joint Tenants & Not as Tenants in Common
16 Curtis Court
Broomfield, CO 80020
Dix, Scott R.
1230 N. State Parkway, Unit 24A
Chicago, IL 60610
(773) 244-3973
Donaldson, Edward E. & Virginia V.
as Joint Tenants with Right of Survivorship
not as Tenants in Common
S.E. 500 Water Street
Pullman, WA 99163
(509) 332-0814
Eifler, Norman R. & Elsie B.
as Joint Tenants & Not as Tenants in Common
7666 Spring Drive
Boulder, CO 80302
(303) 499-4650
Harrison, Robert C.
39 East 79th Street
New York, NY 10021
(212) 535-3624
Harland, Tamara A.
1395 Norwood Avenue
Boulder, CO 80302
(303) 449-6392
Hauser, Daniel F.
1999 Joslyn Place
Boulder, CO 80302
(303) 443-8352
Howard, Jerry B.
6217 Corinth Road
Longmont, CO 80501
(303) 7776-6351
Kenigsberg, Kathryn L.
1721 Fairacres Drive
Greeley, CO 80631
(970) 392-0535
<PAGE>
McMillin, Anita Liane (Bills)
12448 Foxton Road
Foxton, CO 80441
(303) 816-0987
Mellecker, Richard L.
4620 Pacific Coast Highway
Torrance, CA 90505
(310) 316-7734
Menkick, George F.
11867 W. 85th Place
Arvada, CO 80005
(303) 431-1738
Miller, Donald R.
Trustee of the Adeline V. Miller
Family Testamentary Trust
24324 38th Avenue South
Kent, WA 98032
(206) 839-9072
Miller, Donald R.
Trustee of the Donald R. Miller
Revocable Living Trust, Dated: October 15, 1992
25324 38th Avenue South
Kent, WA 98032
O'Donoghue-Cooper, Eileen
1425 King Avenue
Boulder, CO 80302
(303) 443-7237
Graaff-Parrish Living Trust
6532 Primrose Lane
Longmont, CO 80503
Paukstis, Diane L. (Bills)
2225 Big Woods Drive
Batavia, IL 60510
(630) 761-1448
Pingree, J. Frederick, Jr.
2570 E. 1300 S.
Salt Lake City, UT 84108
(801) 582-0291
<PAGE>
Purvis, Sheila D.
6365 Loadicea Road
Longmont, CO 80503
(303) 651-7496 H
(303) 440-2800 W
Ringer, William A.
516 Mapleton
Boulder, CO 80304
(303) 444-1420
Ringer, Lynn D.
516 Mapleton
Boulder, CO 80304
(303) 444-1420
Skiles, Kristie K.
5247 Quail Hollow Court
Boulder, CO 80301
(303) 530-7307
Stewart, William D. III & Charlotte C.
as Joint Tenants & Not as Tenants in Common
2994 75th Street
Boulder, CO 80301
(303) 665-1378
Warren, Keith A. & Betty B.
as Joint Tenants with Right of Survivorship
and Not as Tenants in Common
5357 Hickory Avenue
Boulder, CO 80303
(303) 494-6231
Willis, Robert M.
2544 Sherborne Drive
Belmont, CA 94002
(408) 727-7162
Gold I Trust
Brian M. Bills and
Anita Liane McMillin, Trustees
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303
<PAGE>
Gold II Trust
Brian M. Bills and
Anita Liane McMillin, Trustees
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303
Platinum I Trust
Diane L. Paukstis and
Anita Liane McMillin, Trustees
Granville-Phillips Company
5675 Araphahoe Avenue
Boulder, CO 80303
Platinum II Trust
Diane L. Paukstis and
Anita Liane McMillin, Trustees
Granville-Phillips Company
5675 Araphahoe Avenue
Boulder, CO 80303
Silver I Trust
Brian M. Bills and
Diane L. Paukstis, Trustees
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303
Silver II Trust
Brian M. Bills and
Diane L. Paukstis, Trustees
Granville-Phillips Company
5675 Arapahoe Avenue
Boulder, CO 80303
<PAGE>
SCHEDULE II
Fees of Escrow Agent
Acceptance Fee: Waived
Administrative fee: $2,500.00 per year or part thereof, plus
$35.00 per stockholder
Out-of-Pocket Expense: At cost
Legal Fees (Peabody & Arnold) At cost
RESTATED CERTIFICATE OF INCORPORATION
OF
HELIX TECHNOLOGY CORPORATION
HELIX TECHNOLOGY CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is HELIX TECHNOLOGY CORPORATION, and the
name under which the Corporation was originally incorporated is 500
INCORPORATED.
The date of filing its original Certificate of Incorporation with the
Secretary of State was March 30, 1967.
2. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of the Corporation as heretofore amended or supplemented and there
is no discrepancy between those provisions and the provisions of this Restated
Certificate of Incorporation.
3. The text of the Certificate of Incorporation, as amended or
supplemented, is hereby restated without further amendments or changes to read
as follows:
FIRST. The name of the Corporation is HELIX TECHNOLOGY CORPORATION.
SECOND. Its registered office in the State of Delaware is located at
No. 100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name and address of its registered agent is The Corporation Trust Company, No.
100 West Tenth Street, Wilmington, Delaware.
THIRD. The nature of the business, or objects or purposes to be
transacted, promoted or carried on are:
To engage in the manufacture, sale and other disposition of devices
for the production of refrigeration and/or the liquefication or solidifaction of
gases for the purification of gases, for the production and maintenance of high
vacuums, and for the production of extremely high temperatures for scientific
and technical purposes, including the growing of crystals. To engage in the
manufacture and sale of scientific and technical equipment, and the purchase or
manufacture and sale of accessory materials, equipment and supplies. To
undertake, the installation and trial operation of such devices and the
instruction of others in the operation of such devices and to perform other
professional and technical services.
To engage in engineering, research and development for its own account
or for the account of others in any field of science or knowledge pure or
applied.
<PAGE>
To carry on a general manufacturing and merchandising business and any
business incidental thereto or in any way connected therewith, including, but
without limiting the generality of the foregoing purpose, the trade or business
of preparing, processing, producing, manufacturing, adapting, synthesizing,
forming, treating, finishing, converting, experimenting, testing, and otherwise
acquiring, owning, holding, consuming, disposing of and dealing in and with
interests in metals, minerals, and other materials, substances or compounds, or
combinations thereof, organic and inorganic, natural or artificial, and the
invention, design and fabrication of tools, apparatus and equipment employing or
useful for the employing of any such materials, and any and all other goods,
articles, materials, equipment, compounds or substances required for, or
convenient in connection with or incidental to any of the foregoing; and any
other trade or business which can conveniently be carried on in conjunction with
any of the matters or purposes aforesaid or in or upon the premises of the
corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect
of mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, formulas, inventions,
improvements and processes, trade secrets, trademarks and trade names relating
to or useful in connection with any business of the corporation.
In general, to carry on any or all of the business of the corporation
as principal, agent or contractor, and to carry on any other business incidental
to and in connection with the foregoing and to have and exercise all the powers
conferred by laws of Delaware upon corporations formed under the Corporation
Laws of the State of Delaware.
FOURTH.
(a) The total number of shares of stock which the corporation is
authorized to issue is 7,000,000, of which 5,000,000 shares shall be common
stock, par value of $1 per share ("Common Stock") and 2,000,000 shall be
preferred stock, par value $1 per share ("Preferred Stock").
(b) Preferred Stock may be issued, from time to time, by the Board of
Directors as herein provided, in one or more series. The designations, relative
rights, preferences and limitations of the Preferred Stock, and particularly of
the shares of each series thereof, may be similar to or may differ from those of
any other series. The Board of Directors of the corporation is hereby expressly
granted authority, subject to the provisions of this Article FOURTH, to divide
and issue, from time to time, any or all of the Preferred Stock in one or more
series and to fix, from time to time, before issuance thereof, by filing a
certificate pursuant to the General Corporation Law of the State of Delaware,
the number of shares in each such series of such class and all designations,
relative rights (including the right to convert into shares of any class or into
shares of any series of any class), preferences and limitations of the shares in
each such series, including but without limiting the generality of the
foregoing, the following:
<PAGE>
(i) The number of shares to constitute such series (which
number may at any time, or from time to time, be
increased or decreased by the Board of Directors,
notwithstanding that shares of the series may be
outstanding at the time of such increase or decrease,
unless the Board of Directors shall have otherwise
provided in creating such series, but shall only be
decreased to a number not less than that of the
shares of such series then outstanding) and the
designation thereof;
(ii) The dividend rate or rates on the shares of such
series and any restrictions, limitations or
conditions upon the payment of such dividends, and
whether or not dividends on the shares of such series
shall be cumulative, and the date or dates, if any,
from which dividends thereon shall cumulate and the
dates on which dividends, if declared, shall be
payable;
(iii) Whether or not the shares of such series shall be
redeemable, and, if redeemable, the date or dates
upon which or after which they shall be redeemable,
the amount or amounts per share payable thereon in
the case of the redemption thereof, which amount may
vary at different redemption dates or otherwise as
permitted by law, and the other terms and conditions
on which the shares may be redeemed;
(iv) The rights, if any, of holders of such series to
convert the same into, or exchange the same for
Common Stock or other stock as permitted by law, and
the price or prices or the rate or rates of
conversion and the other terms and conditions, if
any, of such conversion or exchange, as well as
provisions for adjustment of the price or conversion
rate in such events as the Board of Directors shall
determine;
(v) The amount per share payable on the shares of such
series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the
corporation;
(vi) Whether the shares of such series shall be subject to
the operation of a purchase, retirement or sinking
fund and, if so, the terms and conditions thereof;
(vii) Whether the holders of shares of such series shall
have voting power, full or limited, in addition to
the voting powers provided by law, and in case
additional voting powers are accorded, to fix the
extent thereof; and
<PAGE>
(viii) Generally to fix the other rights and privileges and
any qualifications, limitations or restrictions of
such rights and privileges of such series, provided,
however, that no such rights, privileges,
qualifications, limitations or restrictions shall be
in conflict with the Certificate of Incorporation of
the corporation or with the resolution or resolutions
adopted by the Board of Directors, as hereinabove
provided, providing for the issue of any series for
which there are shares then outstanding.
All shares of Preferred Stock of the same series shall be identical in
all respects, except that shares of any one series issued at different times may
differ as to dates, if any, from which dividends thereon may accumulate. All
shares of Preferred Stock of all series shall be of equal rank and shall be
identical in all respects except that to the extent not otherwise limited in
this Article FOURTH any series may differ from any other series with respect to
any one or more of the designations, relative rights, preferences and
limitations (including, without limitation, the designations, relative rights,
preferences and limitations described or referred to in subparagraphs (i) to
(viii) inclusive above) which may be fixed by the Board of Directors pursuant to
this subparagraph (b).
(c) The Board of Directors adopted a resolution on June 5, 1978 as
follows:
RESOLVED, that there be and hereby is established and created a series
of preferred stock of the corporation consisting of 200,000 shares having the
following designation, voting powers, relative rights, preferences and
limitations:
1. Designation. Such series shall be designated "$.70 Cumulative Convertible
Preferred Stock" (herein referred to as "$.70 Preferred Stock"). The number of
shares of such series which may be issued shall be 200,000.
2. Cumulative Dividend Rights; Restrictions on Parity Stock Payments and Junior
Stock Payments.
2.1. Cumulative Dividend Rights. The holders of the $.70 Preferred
Stock shall be entitled to receive, when and as declared by the Board of
Directors, out of funds legally available for the purpose, cumulative cash
dividends at the rate of $.70 per share per annum, payable quarterly on January
15, April 15, July 15 and October 15 in each year. Dividends on the $.70
Preferred Stock shall be cumulative from the dividend payment date next
preceding the date on which the $.70 Preferred Stock is issued. Accumulations of
dividends shall not bear interest.
2.2. Restrictions on Parity Stock Payments and Junior Stock Payments.
So long as any of the $.70 Preferred Stock is outstanding, the corporation shall
not at any time directly or indirectly declare, order, pay, make or set apart
any sum or property for any Parity Stock Payment or Junior Stock Payment,
unless, in each case,
(a) Full Cumulative Dividends on the $.70 Preferred Stock for
all past Dividend Periods and for the then current Dividend Period
shall have been declared and paid or a sum in cash sufficient for the
payment thereof set apart for payment; and
<PAGE>
(b) the full amount of all redemptions then and therefore
required to be made in respect of the $.70 Preferred Stock pursuant to
sections 4.1 and 4.3 hereof shall have been made.
3. Liquidation Rights.
3.1. Liquidations Preferences. In the event of any liquidation,
dissolution or winding up of the corporation, before any payment or distribution
of the assets of the corporation (whether capital or surplus) shall be made to
or set apart for the holders of any Junior Stock, the holders of the $.70
Preferred Stock shall be entitled to the payment in cash of $10.00 per share if
such liquidation, dissolution or winding up shall be involuntary, or $15.00 per
share if such liquidation, dissolution or winding up shall be voluntary,
together in each case with a sum equal to Full Cumulative Dividends thereon to
the date of final distribution to the holders of the $.70 Preferred Stock.
3.2. Distribution on Liquidation. If, upon any such liquidation
dissolution or winding up, the assets of the corporation distributable among the
holders of the $.70 Preferred Stock shall be insufficient to pay to them in full
the preferential amounts specified above, then such assets, or the proceeds
thereof, shall be distributed among the holders of the $.70 Preferred Stock
ratably in proportion to the amounts which would be payable to them,
respectively, if such preferential amounts were paid to them in full.
4. Required and Optional Redemptions.
4.1. Required Redemptions. On June 1, 1989 and on each June 1
thereafter until all of the $.70 Preferred Stock shall have been redeemed, the
corporation shall redeem the number of shares of the $.70 Preferred Stock
specified in the following table (subject, however, to the provisions of section
4.3 hereof), upon the payment in cash of an amount equal to $10.00 per share,
together with a sum equal to Full Cumulative Dividends on the $.70 Preferred
Stock being redeemed to the date of redemption:
Number of Shares
Date of Redemption to be Redeemed
June 1, 1989 45,000
June 1, 1990 40,000
June 1, 1991 40,000
June 1, 1992 40,000
June 1, 1993 All shares then remaining outstanding.
No redemption of less than all of the outstanding shares of the $.70 Preferred
Stock pursuant to section 4.2 hereof, and no redemption pursuant to section 4.3
hereof of a larger number of shares than that specified in this section 4.1,
shall be credited to, or otherwise relieve the corporation of its obligation to
make, the redemptions provided for in this section 4.1.
<PAGE>
4.2. Optional Redemptions. At any time or from time to time after
November 30, 1981 the corporation may, at its option, upon notice as provided in
section 4.4 hereof, and subject to the provisions of section 4.3 hereof, redeem
any (a multiple of 100 shares and a minimum of 1,000 shares) or all of the
shares of the $.70 Preferred Stock then outstanding, upon the payment in cash of
an amount equal to $10.00 per share, together with a sum equal to Full
Cumulative Dividends on the $.70 Preferred Stock being redeemed to the date of
redemption, provided that the corporation shall not redeem any shares of the
$.70 Preferred Stock under this section 4.2 if the holder thereof shall elect to
convert the same in accordance with section 5 hereof, and provided, further,
that no redemption may be made under this section 4.2 unless
(a) the Market Price of the corporation's Common Stock on each
trading day during the period of 45 consecutive days immediately
preceding the date fixed for such redemption shall have been at least
equal to 150% of the Conversion Price (computed in accordance with
section 5 hereof) in effect as of the close of business on the last
full business day next preceding such date, and
(b) on the date fixed for such redemption the shares of Common
Stock issuable upon conversion pursuant to section 5 hereof of the $.70
Preferred Stock to be so redeemed shall have been registered under the
Securities Act, at the expense of the corporation, pursuant to section
10.5 of the Purchase Agreements dated May 31, 1978 between the
corporation and certain institutional investors relating to the $.70
Preferred Stock (the "Purchase Agreements"), and such registration
shall be effective, to the extent requisite to permit the disposition
of such shares of Common Stock in accordance with the intended methods
of disposition thereof referred to in said section 10.5;
provided that the requirements of the foregoing clause (b) shall not be
applicable if on the date fixed for such redemption such disposition of such
shares of Common Stock may be made by the holders of such $.70 Preferred Stock
without registration pursuant to section 10.4(i) or section 10.10 of the
Purchase Agreements. As used in the foregoing clause (b), the term "Securities
Act" shall have the meaning specified in section 10.2 of the Purchase
Agreements.
4.3. Additional Redemptions. Notwithstanding any other provision
hereof, if Section 302(b)(2) of the Internal Revenue Code as in effect on April
15, 1978 (or any similar provision of the tax laws of the United States of
America in effect thereafter) shall not be applicable to any redemption required
by section 4.1 or to any redemption proposed to be made under section 4.2, the
corporation shall, at the time of such redemption, concurrently redeem such
additional number of shares of the $.70 Preferred Stock as shall, in the opinion
of the firm of independent public accountants referred to below, be required so
that said Section 302(b)(2) (or such similar provision) shall be applicable to
such redemption. The corporation shall furnish to each holder of the $.70
Preferred Stock, at least 30 days prior to the date fixed for any redemption
under section 4.1 or section 4.2, a certificate of its principal financial
officer certifying that said Section 302(b)(2) (or such similar provision) will
be applicable to such redemption and showing in reasonable detail all
computations required to demonstrate such applicability, together with a
certificate of a firm of independent public accountants of recognized national
standing selected by the corporation certifying to such applicability.
<PAGE>
4.4. Notice of Optional Redemptions. In the case of each optional
redemption under section 4.2 hereof, the corporation shall give written notice
thereof to each holder of the $.70 Preferred Stock not less than 30 nor more
than 60 days prior to the date fixed for such redemption, in each case
specifying such date, the aggregate number of shares of the $.70 Preferred Stock
to be redeemed on such date and the number of shares of $.70 Preferred Stock
held by such holder to be redeemed on such date. Such notice shall be given by
delivering or mailing the same to each such holder at the address of such holder
as it appears on the corporation's stock records.
4.5. Allocation of Partial Redemptions. If less than all of the
outstanding shares of the $.70 Preferred Stock are to be redeemed pursuant to
sections 4.1, 4.2 or 4.3 hereof, the shares of the $.70 Preferred Stock to be
redeemed shall be allocated in whole shares among all of the holders ratably in
proportion, as nearly as practicable, to the respective numbers of shares held
by such holders, with adjustments, to the extent practicable, to compensate for
any prior redemptions not allocated exactly in such proportion.
4.6. Effect of Redemption. Upon the date fixed for any redemption of
the $.70 Preferred Stock, and upon payment by the corporation of the amounts
payable on redemption as provided herein, all shares of the $.70 Preferred Stock
redeemed shall be deemed to be no longer outstanding for any purpose, whether or
not the certificates for such shares shall have been surrendered for
cancellation, and all rights with respect to such shares shall thereupon cease,
except only the right of the holders of such shares to receive the amounts
payable upon the redemption thereof. All shares of the $.70 Preferred Stock
redeemed by the corporation shall be retired and cancelled and shall not be
reissued.
5. Conversion.
5.1. Conversion Privilege. Any shares of the $.70 Preferred Stock may,
at the election of the holder thereof, at any time prior to the close of
business on May 31, 1993 be converted, at the conversion price per share of
Common Stock of $8.50, as adjusted and readjusted from time to time in
accordance with section 5.4 hereof (such conversion price, as so adjusted and
readjusted and in effect at any time, being herein called the "Conversion
Price"), into the number of fully paid and non assessable shares of Common Stock
determined by dividing (a) the aggregate par value of the shares of the $.70
Preferred Stock to be so converted, multiplied by 10, by (b) the Conversion
Price in effect at the time of such conversion.
5.2. Manner of Conversion, etc. The certificate or certificates for any
shares of the $.70 Preferred Stock to be converted shall be surrendered at the
office or agency maintained for such purpose pursuant to section 5.9 hereof,
duly endorsed, or accompanied by proper instruments of transfer, to the
corporation or in blank, and accompanied by written notice to the corporation of
the holder's election to make such conversion and of the name or names in which
the certificate or certificates for shares of Common Stock are to be issued. The
right to convert any shares of the $.70 Preferred Stock called for redemption
shall terminate at the close of business on the last full business day next
preceding the date fixed for such redemption. Upon conversion of any shares of
the $.70 Preferred Stock, the corporation shall pay to the holder thereof a sum
equal to Full Cumulative Dividends thereon to the date of conversion. Each
conversion shall be deemed to have been effected as of the close of business on
the date on which such certificate or certificates shall have been so
<PAGE>
surrendered to such agency, and at such time the rights of the holder of $.70
Preferred Stock as such shall, to the extent of the number of shares thereof
converted, cease, and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
thereof.
5.3. Delivery of Stock Certificates; Fractional Shares. As promptly as
practicable after the conversion of any $.70 Preferred Stock, and in any event
within 20 days thereafter, the corporation at its expense (including the payment
by it of any applicable issue taxes) will issue and deliver to the holder of
such $.70 Preferred Stock, or as such holder (upon payment by such holder of any
applicable transfer taxes) may direct, a certificate or certificates for the
number of full shares of Common Stock issuable upon such conversion, plus, in
lieu of any fractional share to which such holder would otherwise be entitled,
cash equal to such fraction multiplied by the then current Market Price of one
full share, determined as provided in clause (viii) of subdivision (b) of
section 5.4 hereof.
5.4. Adjustment of Conversion Price for Diluting Issues, Distributions.
(a) Adjustment for Sales Below Conversion Price, etc. If and
whenever after April 15, 1978 the corporation shall issue or sell any shares of
its Common Stock for a consideration per share less than the Conversion Price in
effect immediately prior to the time of such issue or sale, and/or the
corporation shall issue or sell any shares of its Common Stock (except on
conversion of $.70 Preferred Stock) for a consideration per share less than the
Market Price on the date of such issue or sale, then, forthwith upon such issue
or sale, the Conversion Price shall be reduced to the lower of the prices
(calculated to the nearest cent) determined as follows:
(i) by dividing (A) an amount equal to the sum of (1)
the number of shares of Common Stock outstanding immediately
prior to such issue or sale multiplied by the then existing
Conversion Price, and (2) the consideration, if any, received
by the corporation upon such issue or sale, by (B) the total
number of shares of Common Stock outstanding immediately after
such issue or sale; and
(ii) by multiplying the Conversion Price in effect
immediately prior to the time of such issue or sale by a
fraction, the numerator of which shall be the sum of (A) the
number of shares of Common Stock outstanding immediately prior
to such issue or sale multiplied by the Market Price
immediately prior to such issue or sale plus (B) the
consideration received by the corporation upon such issue or
sale, and the denominator of which shall be the product of (C)
the total number of shares of Common Stock outstanding
immediately after such issue or sale, multiplied by (D) the
Market Price immediately prior to such issue or sale.
(b) For the purposes of subdivision (a) above, the following
clauses (i) to (x), inclusive, shall also be applicable:
<PAGE>
(i) Issuance of Rights or Options. In case at any
time the corporation shall grant (whether directly or by
assumption in a merger or otherwise) any rights to subscribe
for or to purchase, or any options for the purchase of, Common
Stock or any stock or securities convertible into or
exchangeable for Common Stock (such convertible or
exchangeable stock or securities being herein called
"Convertible Securities") whether or not such rights or
options or the right to convert or exchange any such
Convertible Securities are immediately exercisable, and the
price per share for which Common Stock is issuable upon the
exercise of such rights or options or upon conversion or
exchange of such Convertible Securities (determined by
dividing (A) the total amount, if any, received or receivable
by the corporation as consideration for the granting of such
rights or options, plus the minimum aggregate amount of
additional consideration payable to the corporation upon the
exercise of all such rights or options, plus, in the case of
such rights or options which relate to Convertible Securities,
the minimum aggregate amount of additional consideration, if
any, payable upon the issue or sale of such Convertible
Securities and upon the conversion or exchange thereof, by (B)
the total maximum number of shares of Common Stock issuable
upon the exercise of such rights or options or upon the
conversion or exchange of all such Convertible Securities
issuable upon the exercise of such rights or options) shall be
less than the Conversion Price in effect immediately prior to
the time of the granting of such rights or options (or less
than the Market Price, determined as of the date of granting
such rights or options, as the case may be), then the total
maximum number of shares of Common Stock issuable upon the
exercise of such rights or options or upon conversion or
exchange of the total maximum amount of such Convertible
Securities issuable upon the exercise of such rights or
options shall (as of the date of granting of such rights or
options) be deemed to be outstanding and to have been issued
for such price per share. Except as provided in clause (iii)
below, no further adjustments of the Conversion Price shall be
made upon the actual issue of such Common Stock or of such
Convertible Securities upon exercise of such rights or options
or upon the actual issue of such Common Stock upon conversion
or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. In case the
corporation shall issue (whether directly or by assumption in
a merger or otherwise) or sell any Convertible Securities,
whether or not the rights to exchange or convert thereunder
are immediately exercisable, and the price per share for which
Common Stock is issuable upon such conversion or exchange
(determined by dividing (A) the total amount received or
receivable by the corporation as consideration for the issue
or sale of such Convertible Securities, plus the minimum
aggregate amount of additional consideration, if any, payable
to the corporation upon the conversion or exchange thereof, by
(B) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such
Convertible Securities) shall be less than the Conversion
Price in effect immediately prior to the time of such issue or
<PAGE>
sale (or less than the Market Price, determined as of the date
of such issue or sale of such Convertible Securities, as the
case may be), then the total maximum number of shares of
Common Stock issuable upon conversion or exchange of all such
Convertible Securities shall (as of the date of the issue or
sale of such Convertible Securities) be deemed to be
outstanding and to have been issued for such price per share,
provided that (1) except as provided in clause (iii) below, no
further adjustments of the Conversion Price shall be made upon
the actual issue of such Common Stock upon conversion or
exchange of such Convertible Securities, and (2) if any such
issue or sale of such Convertible Securities is made upon
exercise of any rights to subscribe for or to purchase or any
option to purchase any such Convertible Securities for which
adjustments of the Conversion Price have been or are to be
made pursuant to other provisions of this subdivision (b), no
further adjustment of the Conversion Price shall be made by
reason of such issue or date.
(iii) Change in Option Price or Conversion Rate. Upon
the happening of any of the following events, namely, if the
purchase price provided for in any rights or options referred
to in clause (i) of this subdivision (b), the additional
consideration, if any, payable upon the conversion or exchange
of Convertible Securities referred to in clause (i) or clause
(ii) of this subdivision (b), or the rate at which any
Convertible Securities referred to in clause (i) or clause
(ii) of this subdivision (b) are convertible into or
exchangeable for Common Stock shall change (other than under
or by reason of provisions designed to protect against
dilution), the Conversion Price in effect at the time of such
event shall forthwith be readjusted to the Conversion Price
which would have been in effect at such time had such rights,
options or Convertible Securities still outstanding provided
for such changed purchase price, additional consideration or
conversion rate, as the case may be, at the time initially
granted, issued or sold; and on the expiration of any such
option or right or the termination of any such right to
convert or exchange such Convertible Securities, the
Conversion Price then in effect hereunder shall forthwith be
increased to the Conversion Price which would have been in
effect at the time of such expiration or termination had such
right, option or Convertible Security, to the extent
outstanding immediately prior to such expiration or
termination, never been issued, and the Common Stock issuable
thereunder shall no longer be deemed to be outstanding. If the
purchase price provided for in any such right or option
referred to in clause (i) of this subdivision (b) or the rate
at which any Convertible Securities referred to in clause (i)
or clause (ii) of this subdivision (b) are convertible into or
exchangeable for Common Stock, shall decrease at any time
under or by reason of provisions with respect thereto designed
to protect against dilution, then in case of the delivery of
Common Stock upon the exercise of any such right or option or
upon conversion or exchange of any such Convertible Security,
the Conversion Price then in effect hereunder shall forthwith
be adjusted to such respective amount as would have obtained
<PAGE>
had such right, option or Convertible Security never been
issued as to such Common Stock and had adjustments been made
upon the issuance of the shares of Common Stock delivered as
aforesaid, but only if as a result of such adjustment the
Conversion Price then in effect hereunder is thereby
decreased.
(iv) Stock Dividends. In case the corporation shall
declare a dividend or snake any other distribution upon any
stock of the corporation payable in Common Stock or
Convertible Securities, any Common Stock or Convertible
Securities, as the case may be, issuable in payment of such
dividend or distribution shall be deemed to have been issued
or sold without consideration.
(v) Consideration for Stock. In case any shares of
Common Stock or Convertible Securities or any rights or
options to purchase any such Common Stock or Convertible
Securities shall be issued or sold for cash the consideration
received therefor shall be deemed to be the amount received by
the corporation therefor, without deduction therefrom of any
expenses incurred or any underwriting commissions or
concessions paid or allowed by the corporation in connection
therewith. In case any shares of Common Stock or Convertible
Securities or any rights or options to purchase any such
Common Stock or Convertible Securities shall be issued or sold
for a consideration other than cash, the amount of the
consideration other than cash received by the corporation
shall be deemed to be the fair value of such consideration as
determined in good faith by the Board of Directors of the
Corporation, without deduction of any expenses incurred or any
underwriting commissions or concessions paid or allowed by the
corporation in connection therewith. In case any shares of
Common Stock or Convertible Securities or any rights or
options to purchase such Common Stock or Convertible
Securities shall be issued in connection with any merger or
consolidation in which the corporation is the surviving
corporation, the amount of consideration therefor shall be
deemed to be the fair value as determined by the Board of
Directors of the corporation of such portion of the assets and
business of the non-surviving corporation or corporations as
such Board shall determine to be attributable to such Common
Stock, Convertible Securities, rights or options, as the case
may be. In the event of any consolidation or merger of the
corporation in which the corporation is not the surviving
corporation or in the event of any sale of all or
substantially all of the assets of the corporation for stock
or other securities of any corporation, the corporation shall
be deemed to have issued a number of shares of its Common
Stock for stock or securities of the other corporation
computed on the basis of the actual exchange ratio on which
the transaction was predicated and for a consideration equal
to the fair market value on the date of such transaction of
such stock or securities of the other corporation.
<PAGE>
(vi) Record Date. In case the corporation shall take
a record of the holders of its Common Stock for the purpose of
entitling them (A) to receive a dividend or other distribution
payable in Common Stock or in Convertible Securities, or (B)
to subscribe for or purchase Common Stock or Convertible
Securities, then such record date shall be deemed to be the
date of the issue or sale of the shares of Common Stock deemed
to have been issued upon the declaration of such dividend or
the making of such other distribution or the date of the
granting of such right of subscription or purchase, as the
case may be.
(vii) Treasury Shares. The number of shares of Common
Stock outstanding at any given time shall not include shares
owned or held by or for the account of the corporation, and
the disposition of any such shares shall be considered an
issue or sale of Common Stock for the purposes of this
subdivision (b).
(viii) Definition of Market Price. "Market Price"
shall mean in the case of any trading day the average of the
closing prices of the Common Stock sales on all exchanges on
which the Common Stock may at the time be listed, or, if there
shall have been no sales on any such exchange on any such day,
the average of the bid and asked prices at the end of such
day, or, if the Common Stock shall not be so listed, the
average of the bid and asked prices at the end of such day in
the over-the-counter market, in each such case (except for the
purposes of section 4.2 hereof) averaged over a period of 20
consecutive business days prior to the day as of which "market
price" is being determined. If at any time the Common Stock is
not listed on any exchange or quoted in the over-the-counter
market, the "Market Price" shall be deemed to be the higher of
(A) the book value thereof as determined by any firm of
independent public accountants of recognized national standing
selected by the Board of Directors of the corporation as at
the last day of any month ending within 60 days preceding the
date as of which the determination is to be made or (B) the
fair value thereof determined in good faith by the Board of
Directors of the corporation as of a date which is within 15
days of the date as of which the determination is to be made.
(ix) Determination of Market Price under Certain
Circumstances. Anything herein to the contrary
notwithstanding, in case the corporation shall issue any
shares of Common Stock or Convertible Securities in connection
with the acquisition by the corporation of the stock or assets
of any other corporation or the merger of any other
corporation into the corporation under circumstances where on
the date of the issuance of such shares of Common Stock or
Convertible Securities the consideration received for such
Common Stock or deemed to have been received for the Common
Stock into which such Convertible Securities are convertible
is less than the Market Price of the Common Stock, but on the
date the number of shares of Common Stock or Convertible
Securities (or in the case of Convertible Securities other
<PAGE>
than stock, the aggregate principal amount of Convertible
Securities) was determined the consideration received for such
Common Stock or deemed to have been received for the Common
Stock into which such Convertible Securities are convertible
would not have been less than the Market Price thereof, such
shares of Common Stock shall not be deemed to have been issued
for less than the Market Price of the Common Stock.
(x) Determination of Consideration in Connection with
Certain Acquisitions. Anything in clause (v) of this
subdivision (b) to the contrary notwithstanding, in the case
of an acquisition where all or part of the purchase price is
payable in Common Stock or Convertible Securities but is
stated as a dollar amount, where the corporation upon making
the acquisition pays only part of a maximum dollar purchase
price which is payable in Common Stock or Convertible
Securities and where the balance of such purchase price is
deferred or is contingently payable under a formula related to
earnings over a period of time, (A) the consideration received
for any Common Stock or Convertible Securities delivered at
the time of the acquisition shall be deemed to be such part of
the total consideration as the portion of the dollar purchase
price then paid in Common Stock or Convertible Securities
bears to the total maximum dollar purchase price payable in
Common Stock or Convertible Securities, and (B) in connection
with each issuance of additional Common Stock or Convertible
Securities pursuant to the terms of the agreement relating to
such acquisition, the consideration received shall be deemed
to be such part of the total consideration as the portion of
the dollar purchase price then and theretofore paid in Common
Stock or Convertible Securities bears to the total maximum
dollar purchase price payable in Common Stock or Convertible
Securities multiplied by a fraction, the numerator of which
shall be the number of shares (or in the case of Convertible
Securities other than stock, the aggregate principal amount)
then issued and the denominator of which shall be the total
number of shares (or in the case of Convertible Securities
other than stock, the aggregate principal amount) then and
theretofore issued under such acquisition agreement. If it is
determined that any part of the deferred or contingent portion
of such purchase price shall not be payable, the Conversion
Price then in effect hereunder shall forthwith be readjusted
to such Conversion Price as would have obtained (l) had the
adjustment made in connection with such acquisition been made
upon the basis of the issuance of only the number of shares of
Common Stock or Convertible Securities actually issued in
connection with such acquisition, and (2) had adjustments been
made on the basis of the Conversion Price as adjusted in
clause (1) for all issues or sales (as prices which would have
affected such adjusted Conversion Price) of Common Stock or
rights, options or Convertible Securities made after such
acquisition. In the event that only a part of the purchase
price for an acquisition is paid in Common Stock or
Convertible Securities in the manner referred to in this
clause (x), the term "total consideration" as used in this
<PAGE>
clause (x) shall mean that part of the aggregate consideration
as is fairly allocable to the purchase price paid in Common
Stock or Convertible Securities in the manner referred to in
this clause (x), as determined by the Board of Directors of
the corporation.
(c) Adjustment for Certain Special Dividends. In case the
corporation shall declare a dividend upon the Common Stock payable otherwise
than out of consolidated earnings or consolidated earned surplus, determined in
accordance with generally accepted accounting principles, including the making
of appropriate deductions for minority interests, if any, in Subsidiaries, and
otherwise than in Common Stock or Convertible Securities, the Conversion Price
in effect immediately prior to the declaration of such dividend shall be reduced
by an amount equal, in the case of a dividend in cash, to the amount thereof
payable per share of the Common Stock or, in the case of any other dividend, to
the fair value thereof per share of the Common Stock as determined by the Board
of Directors of the corporation. For the purposes of the foregoing a dividend
other than in cash shall be considered payable out of earnings or surplus (other
than revaluation or paid-in surplus) only to the extent that such earnings or
surplus are charged an amount equal to the fair value of such dividend as
determined by the Board of Directors of the corporation. Such reductions shall
take effect as of the date on which a record is taken for the purpose of such
dividend, or, if a record is not taken the date as of which the holders of
Common Stock of record entitled to such dividend are to be determined.
(d) Subdivision or Combination of Stock. In case the
corporation shall at any time subdivide its outstanding shares of Common Stock
into a greater number of shares, the Conversion Price in effect immediately
prior to such subdivision shall be proportionately reduced, and conversely, in
case the outstanding shares of Common Stock of the corporation shall be combined
into a smaller number of shares, the Conversion Price in effect immediately
prior to such Combination shall be proportionately increased.
(e) Reorganization, Reclassification, Consolidation, Merger or
Sale. If any capital reorganization or reclassification of the capital stock of
the corporation, or consolidation or merger of the corporation with another
corporation, or the sale of all or substantially all of its assets to another
corporation shall be effected in such a way that holders of Common Stock shall
be entitled to receive stock, securities or assets with respect to or in
exchange for Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision
shall be made whereby each holder of $.70 Preferred Stock shall thereafter have
the right to purchase and receive upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of the Common Stock of the
corporation immediately theretofore issuable upon the conversion of such $.70
Preferred Stock, such shares of stock, securities, or assets as may be issued or
payable with respect to or in exchange for a number of outstanding shares of
such Common Stock equal to the number of shares of such stock immediately
theretofore issuable upon the conversion of such $.70 Preferred Stock had such
reorganization, reclassification, consolidation, merger or sale not taken place,
and in any such case appropriate provision shall be made with respect to the
rights and interests of the holders of the $.70 Preferred Stock to the end that
the provisions hereof (including without limitation provisions for adjustments
of the Conversion Price) shall thereafter be applicable, as nearly as may be, in
relation to any shares of stock, securities, or assets thereafter deliverable
upon the conversion of the $.70 Preferred Stock. The corporation shall not
<PAGE>
effect any such consolidation, merger or sale, unless prior to consummation
thereof the successor corporation (if other than the corporation) resulting from
such consolidation or merger, or the corporation into or for the securities of
which the outstanding shares of Common Stock shall be changed or exchanged in
connection with such consolidation or merger or the corporation purchasing such
assets shall assume by written instrument executed and mailed to each holder of
$.70 Preferred Stock at the time outstanding, the obligation to deliver to such
holder such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holder may be entitled to. If a purchase, tender or
exchange offer is made to and accepted by the holders of more than 50% of the
outstanding shares of Common Stock of the corporation, the corporation shall not
effect any consolidation, a merger or sale with the person having made such
offer, unless prior to the consummation thereof the holders of the $.70
Preferred Stock shall have been given a reasonable opportunity to then elect to
receive upon the conversion of the $.70 Preferred Stock either the stock,
securities or assets then issuable with respect to the Common Stock of the
corporation or the stock, securities or assets, or the equivalent, issued to
previous holders of the Common Stock in accordance with such offer.
(f) Notice of Adjustment. Upon any adjustment of the
Conversion Price, then and in each such case the corporation shall give written
notice thereof to each holder of $.70 Preferred Stock at the time outstanding,
which notice shall state the Conversion Price resulting from such adjustment,
and shall set forth in reasonable detail the method of calculation thereof and
the facts upon which such calculation is based. Such notice shall be given by
delivering or mailing the same to each such holder at the address of such holder
as it appears on the corporation's stock records.
(g) Other Notices. In case at any time:
(i) the corporation shall declare any such dividend
on its Common Stock at a rate in excess of the rate of the
last cash dividend theretofore paid;
(ii) the corporation shall pay any dividend payable
in stock upon its Common Stock or make any distribution (other
than regular cash dividends) to the holders of its Common
Stock;
(iii) the corporation shall offer for subscription
pro rata to the holders of its Common Stock any additional
shares of stock of any class or other rights;
(iv) there shall be any capital reorganization, or
reclassification of the capital stock of the corporation, or
consolidation or merger of the corporation with, or sale of
all or substantially all of its assets to, another
corporation; or
(v) there shall be a voluntary or involuntary
dissolution, liquidation or winding up of the corporation;
<PAGE>
then, in any one or more of said cases, the corporation shall give written
notice to each holder of $.70 Preferred Stock at the time outstanding, of the
date on which (A) the books of the corporation shall close or a record shall be
taken for such dividend, distribution or subscription rights, or (B) such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up shall take place, as the case may be. Such notice
shall also specify the date as of which the holders of Common Stock of record
shall participate in such dividend, distribution or subscription rights, or
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, as the case may be. Such
notice shall be given by delivering or mailing the same to each such holder at
the address of such holder as it appears on the corporation's stock records, at
least 20 days prior to the action in question and not less than 20 days prior to
the record date or the date on which the corporation's transfer books are closed
in respect thereto.
(h) Certain Events. If any event occurs as to which in the
opinion of the Board of Directors of the corporation the other provisions of
this section 5.4 are not strictly applicable or if strictly applicable would not
fairly protect the conversion rights of the holders of the $.70 Preferred Stock
in accordance with the essential intent and principles of such provisions, then
the Board of Directors shall make an adjustment in the application of such
provisions, in accordance with such essential intent and principles, so as to
protect such conversion rights as aforesaid.
5.5. Shares to be Fully Paid; Reservation of Shares. The corporation
covenants and agrees that all shares which may be issued upon conversion of the
$.70 Preferred Stock will, upon issuance, be fully paid and non-assessable and
free from all taxes, liens and charges with respect to the issue thereof; and
without limiting the generality of the foregoing, the corporation covenants and
agrees that it will from time to time take all such action as may be requisite
to assure that the par value per share of the Common Stock is at all times equal
to or less than the then effective purchase price per share of the Common Stock
issuable upon conversion of the $.70 Preferred Stock. The corporation further
covenants and agrees that the corporation will at all times have authorized, and
reserved for the purpose of issue or transfer upon the conversion of the $.70
Preferred Stock, a sufficient number of shares of its Common Stock to provide
for the conversion of the $.70 Preferred Stock.
5.6. Registration, Approval and Listing. If any shares of Common Stock
required to be reserved for purposes of conversion of $.70 Preferred Stock
hereunder require registration with or approval of any governmental authority
under any Federal or State law, or listing on any national securities exchange,
before such shares may be issued upon conversion, the corporation will, at its
expense, as expeditiously as possible, use its best efforts to cause such shares
to be duly registered or approved or listed on the relevant national securities
exchange, as the case may be.
5.7. Issue Tax. The issuance of certificates for shares of Common Stock
upon the conversion of $.70 Preferred Stock shall be made without charge to the
holders of such $.70 Preferred Stock for any issuance tax in respect thereof,
provided that the corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than the holder of the $.70 Preferred Stock
converted.
<PAGE>
5.8. Closing of Books. The corporation will at no time close its
transfer books against the transfer of any shares of Common Stock issued or
issuable upon the conversion of the $.70 Preferred Stock in any manner which
interferes with the timely exercise of the conversion rights of the holders of
the $.70 Preferred Stock.
5.9. Conversion Agent. So long as any $.70 Preferred Stock is
outstanding, the corporation will at all times maintain an office or agency in
Boston, Massachusetts, for the purpose of accepting $.70 Preferred Stock
surrendered for conversion and issuing Common Stock upon the conversion of the
$.70 Preferred Stock pursuant to section 5.2 hereof. Initially the office or
agency hereunder for such purposes shall be the principal office of The First
National Bank of Boston. The corporation will give written notice to each holder
of the $.70 Preferred Stock at the time outstanding of any change in such office
or agency.
6. Voting Rights; Restrictions on Corporate Action.
6.1. General Voting Rights. Except as otherwise provided by law and in
addition to the rights provided for in section 6.2 and section 6.3 hereof, the
holders of the $.70 Preferred Stock shall be entitled to one-tenth (1/10) of one
vote for each share held and shall be entitled to exercise such voting rights
voting with the holders of Common Stock, without distinction as to class at any
annual or special meeting of stockholders for the election of directors and on
any other matter coming before such meeting.
6.2. Special Right to Elect Director. (a) If and whenever (i) if
dividends on the $.70 Preferred Stock shall have been in arrears for a period of
12 calendar months (whether or not consecutive), or (ii) the corporation shall
have failed to make any redemption of the $.70 Preferred Stock required by
section 4.1 hereof when due, and such failure or failures shall have continued
for a period of 12 calendar months (whether or not consecutive), the holders of
the outstanding $.70 Preferred Stock shall have the special right, voting
separately as a single class, to elect one director of the corporation at the
next succeeding annual meeting of stockholders and at each succeeding annual
meeting of stockholders thereafter until such right shall terminate as
hereinafter provided. At each meeting of stockholders at which the holders of
the $.70 Preferred Stock shall have such special right, voting separately as a
single class, to elect a director, the presence in person or by proxy of the
holders of record of one-third of the total number of shares of the $.70
Preferred Stock at the time outstanding shall be necessary and sufficient to
constitute a quorum of such class for such election by such stockholders as a
class.
<PAGE>
(b) Each director elected by the holders of the $.70 Preferred
Stock voting separately as a single class as provided in subdivision (a) of this
section 6.2 shall hold office until the annual meeting of stockholders next
succeeding his election and until his successor, if any, is elected by such
holders and qualified or until his death, resignation or removal in the manner
provided in the by-laws of the corporation. In case the office of any director
shall become vacant, such vacancy may be filled for the unexpired portion of the
term by the vote of such stockholders given at a special meeting of such
stockholders called for the purpose.
(c) Whenever Full Cumulative Dividends on the $.70 Preferred
Stock for all past Dividend Periods and for the then current Dividend Period
shall have been declared and paid, and all redemptions of the $.70 Preferred
Stock required by section 4.1 hereof shall have been made, the right of the
holders of the $.70 Preferred Stock, voting separately as a single class, to
elect a director as provided in subdivision (a) of this section 6.2 shall
terminate at the next succeeding annual meeting of stockholders, but subject
always to the same provisions for the vesting of such special right, voting
separately as a single class, to elect a director in the case of any future such
arrearage or failure.
6.3. Restrictions on Corporate Action. Without the consent of the
holders of at least a majority of the shares of the $.70 Preferred Stock at the
time outstanding, given in writing without a meeting or by vote at a meeting
called for the purpose, at which the holders of the $.70 Preferred Stock shall
vote separately as a single class, the corporation shall not
(a) Authorize or issue any shares of Senior Stock or any
shares of stock or any obligations or warrants or rights convertible into or
evidencing rights to purchase any Senior Stock;
(b) Authorize or issue any shares of Parity Stock or any
shares of stock or any obligations or warrants or rights convertible into or
evidencing rights to purchase any Parity Stock unless, immediately after giving
effect thereto and to any concurrent transactions, Consolidated Net Income.
Available for Dividends for the period of the four most recently completed
quarterly accounting periods of the corporation shall have equalled at least
150% of Pro Forma Interest and Preferred Dividends;
(c) Declare, order, pay, make or set apart any sum or property
for any Junior Stock Payment (except to the extent of the aggregate net cash
proceeds received by the corporation after the date of initial issue of the $.70
Preferred Stock from the sale of shares of Junior Stock or of warrants, rights
or options to acquire any such shares) unless, immediately after giving effect
thereto, Consolidated Net Worth shall be at least $8,000,000;
(d) Take any action looking towards its liquidation,
dissolution or winding up;
(e) Consolidate with or merge into any other person, unless
(i) the holders of the $.70 Preferred Stock will receive in such consolidation
or merger the same number of shares of stock of the corporation resulting from
or surviving such consolidation or merger, having the same relative rights and
preferences as the $.70 Preferred Stock, and (ii) after giving effect to such
consolidation or merger, the corporation resulting from or surviving such
consolidation or merger will have no stock authorized or outstanding having any
<PAGE>
right or preference as to dividends or assets senior to any right or preference
of the $.70 Preferred Stock or of the stock issued to the holders of the $.70
Preferred Stock in such consolidation or merger;
(f) Sell, lease, abandon or otherwise dispose of all or
substantially all of its properties and assets, except that the corporation may,
without such consent, sell or otherwise dispose of all or substantially all of
its properties and assets to another corporation if as a result of such trans
action (i) the holders of the $.70 Preferred Stock will thereupon receive the
same number of shares of stock of the corporation purchasing or otherwise
acquiring such properties and assets, having the same relative rights and
preferences as the $.70 Preferred Stock, and (ii) after giving effect to such
transaction, the corporation purchasing or otherwise acquiring such properties
and assets will have no stock authorized or outstanding having any right or
preference as to dividends or assets senior to any right or preference of the
$.70 Preferred Stock or of the stock issued to the holders of the $.70 Preferred
Stock in such transaction;
(g) Enter into any agreement or understanding which in any way
restricts the corporation's right or ability to declare and pay dividends on, or
to make any other distribution with respect to, or to redeem, the $.70 Preferred
Stock; or
(h) Authorize or effect any amendment to its Certificate of
Incorporation or by-laws which would adversely affect or be inconsistent with
any of the rights or preferences of the $.70 Preferred Stock or otherwise
prejudicial to the interests of the holders of the $.70 Preferred Stock.
7. Change in Tax Laws. In the event that the tax laws of the United States of
America are amended after April 15, 1978 so as to allow the corporation to
elect, for Federal income tax purposes, whether or not to claim a deduction for
dividends or other distributions on or on account of the $.70 Preferred Stock,
the corporation shall not, without the unanimous consent of the holders of the
shares of the $.70 Preferred Stock at the time outstanding, given in writing
without a meeting or by vote at a Meeting called for the purpose, at which the
holders of the $.70 Preferred Stock snail vote separately as a single class,
elect to claim any such deduction if as a result of such election (a) the
deduction for dividends received provided for in Section 243 of the Internal
Revenue Code as in effect on April 15, 1978 with respect to dividends on the
$.70 Preferred Stock received by any holder thereof would be eliminated or
reduced, or (b) the interests of the holders of the $.70 Preferred Stock would
otherwise be adversely affected.
8. Definitions; Accounting Terms and Principles.
8.1. Definitions of Capitalized Terms. As used herein the
following terms have the following respective meanings:
Common Stock: the Common Stock, $1 par value, of the corporation as
constituted on the date of initial issue of the $.70 Preferred Stock, and any
stock into which such Common Stock shall have been changed, or any stock
resulting from any subdivision, Combination, consolidation or reclassification
of such Common Stock.
Consolidated Net Income, Consolidated Net Income Available for
Dividends and Consolidated Net Worth: the Net Income, Net Income Available for
dividends and Net Worth, as the case may be, of the corporation and its
Subsidiaries (whether or not ordinarily consolidated in consolidated financial
<PAGE>
statements of the corporation and Subsidiaries), all consolidated in accordance
with generally accepted accounting principles, and after giving appropriate
effect to outside minority interests, if any, in Subsidiaries, provided that in
determining Consolidated Net Income there shall be excluded (a) the Net Income
of any person other than a Subsidiary) in which the corporation or any
Subsidiary has an ownership interest, except to the extent that any such Net
Income has been actually received by the corporation or such Subsidiary in the
form of dividends or similar distributions, (b) any undistributed Net Income of
a Subsidiary which for any reason is unavailable for distribution to the
corporation or any other Subsidiary, and (c) any deferred or other credit
representing amortization of the excess of the equity in any Subsidiary at the
date of acquisition thereof over the cost of the investment in such Subsidiary.
Conversion Price: as defined in section 5.1 thereof.
Convertible Securities: as defined in clause (i) of subdivision (b)
of section 5.4 hereof.
Dividend Periods: the periods beginning on January 16, April 16, July
l6 and October 16 and ending on April 15, July 15, October 15 and January 15,
respectively, in each year.
Full Cumulative Dividends: cumulative dividends on the $.70 Preferred
Stock computed, to the date or for the Dividend Period with reference to which
the term is used, at the rate of $.70 per share per annum (whether or not such
amount or any part thereof shall have been declared as dividends, whether or not
there exists or shall have existed available funds out of which dividends in
such amount might be or might therefore have been declared and whether or not
declarations or payment of dividends in such amount shall be or shall have been
in contravention of any applicable restrictions from time to time in effect for
the benefit of holders of any class of indebtedness of the corporation), less
the aggregate of dividends paid thereon to such date or for such Dividend
Period, as the case may be.
Junior Stock: the Common Stock and any other stock of the corporation
having rights and preferences as to dividends and assets junior in all respects
to the rights and preferences of the $.70 Preferred Stock.
Junior Stock Payment: any dividend or other distribution, direct or
indirect, on or on account of any shares of any Junior Stock then or thereafter
outstanding, except a dividend payable solely in shares of Junior Stock, and any
redemption, retirement, purchase or other acquisition, direct or indirect, of
any shares of any Junior Stock then or thereafter outstanding or of any warrants
or rights to purchase any such Stock, except to the extent that the
consideration for any such redemption, retirement, purchase or acquisition
consists of shares of Junior Stock.
Market Price: as defined in clause (viii) of subdivision (b) of
section 5.4 hereof.
Net Income of any corporation for any period: the net income (or
net deficit) of such corporation for such period, determined in the following
manner:
<PAGE>
(a) the gross revenues and other proper income credits of such
corporation shall be computed for such period in accordance with
generally accepted accounting principles, excluding, however, the
following items (without duplication):
(i) the proceeds of any life insurance policy;
(ii) gains arising from the sale or other disposition
of capital assets or arising from any write-up of assets or
from the acquisition by such corporation of its outstanding
debt securities at a cost which is less than the amounts due
and to become due on such securities;
(iii) any reversal of any contingency reserve, except
to the extent that provision for such contingency reserve
shall have been made during such period; and
(iv) any reversal of any reserve for taxes, contract
renegotiation or price determination, except to the extent of
any excess of any such reserve over the amount ultimately
determined to be due and payable; but in any event there may
be added to the income credits for such period (x) the
appropriate portion of any reversal of a reserve referred to
in the foregoing clauses (iii) and (iv), after allocating the
amount of such reversal proportionately over the periods since
such reserve was created, and (y) amounts repaid, refunded or
credited to such corporation during such period on account of
taxes paid or accrued in respect of income arising prior to as
well as during such period.
(b) From the amount of such gross revenues and other proper
income credits for such period, determined as provided in the foregoing
subdivision (a), there shall be deducted all expenses and all other proper
revenue and income deductions and charges for such period determined in
accordance with generally accepted accounting principles, exclusive of losses
arising from the sale, abandonment or other disposition of capital assets, but
in any event there shall be deducted the following items, whether or not such
items are charged or properly chargeable to income:
(i) amortization of debt discount and any other
amortization of prepaid expenses, deferred charges or other
intangibles;
(ii) provision for all taxes of every kind and
character, provided that, for the purposes of this clause
(ii), taxes in respect of income shall be appropriately
adjusted to reflect the effect of the exclusion of any items
of income credits and deductions (including, without
limitation any depreciation, depletion, obsolescence or
amortization claimed by such corporation for income tax
purposes in excess of the amount required to be deducted
pursuant to clause (iv) below) required or permitted to be
excluded in determining Net Income hereunder;
(iii) all provisions or appropriations, if any, made
by such corporation for reserves for contingencies which are
charged or, under generally accepted accounting principles,
should be charged to income arising during such period;
<PAGE>
(iv) provision for depreciation, depletion,
obsolescence and amortization of the properties of such
corporation (including, without limitation, amortization of
assets recorded under capital leases) in amounts in the
aggregate not less than those actually deducted on its books,
determined in accordance with generally accepted accounting
principles;
(v) any additional amounts required to be paid during
such period on account of taxes in respect of income arising
prior to such period in excess of reserves for such taxes
established out of income arising prior to such period; and
(vi) any additional amounts required to be paid
during such period on account of contract renegotiation or
price redetermination with respect to sales prior to such
period in excess of reserves for such renegotiation
established out of income arising prior to such period.
Net Income Available for Dividends of any corporation for any period:
the Net Income of such corporation for such period (excluding any amounts
included in the determination thereof on account of amounts repaid, refunded or
credited to such corporation during such period on account of taxes paid or
accrued in respect of income arising prior to or during such period), plus the
sum of all amounts deducted in the determination of such Net Income for
(a) interest charges on indebtedness accrued during such
period;
(b) amortization of debt discount applicable to such period;
(c) provision for taxes imposed on or measured by income
determined after deduction of interest charges; and
(d) any additional amounts required to be paid during such
period on account of taxes in respect of income arising prior to such
period.
Net Worth of any corporation at any date: the sum of the capital stock
(excluding treasury stock and capital stock subscribed and unissued) and surplus
(including retained earnings and additional paid-in capital) of such corporation
as shown by the books of such corporation at such date.
Parity Stock: any stock of the corporation having any right or
preference as to dividends or assets equal in any respect to any right or
preference of the $.70 Preferred Stock.
Parity Stock Payment: any dividend or other distribution, direct or
indirect, on or on account of any shares of any Parity Stock then or thereafter
outstanding, except a dividend payable solely in shares of Parity Stock, and any
redemption, retirement, purchase or other acquisition, direct or indirect, of
any shares of any Parity Stock then or thereafter outstanding or of any warrants
or rights to purchase any such Stock, except to the extent that the
consideration for any such redemption, retirement, purchase or acquisition
consists of shares of Parity Stock.
<PAGE>
Pro Forma Interest and Preferred Dividends at any date: the highest
aggregate amount
(a) all interest Charges on all indebtedness of the
corporation and its Subsidiaries on a consolidated basis outstanding
at such date, plus
(b) all dividends on the $.70 Preferred Stock, all Parity
Stock and all Senior Stock, multiplied by a fraction, the numerator of
which is Consolidated Net Income before provision for taxes imposed on
or measured by income for the most recently completed fiscal year of
the corporation, and the denominator of which is Consolidated Net
Income for such year, payable or guaranteed, after giving appropriate
effect to immediately proposed transactions at such date, by the
corporation and its Subsidiaries during the 12-month period commencing
on such date (or, if the aggregate amount of such interest and
dividends so payable or guaranteed shall be greater during any other
12-month period commencing after such date, then during such other
12-month period).
Purchase Agreements: as defined in section 4.2 hereof.
Securities Act: as defined in section 4.2 hereof.
Senior Stock: any stock of the corporation having any right or
preference as to dividends or assets senior in any respect to any right or
preference of the $.70 Preferred Stock.
Subsidiary: any corporation a majority (by number of votes) of the
Voting Stock of which is owned by the corporation or by one or more Subsidiaries
or by the corporation and one or more Subsidiaries.
Voting Stock, when used with reference to any corporation: shares
(however designated) of such corporation having ordinary voting power for the
election of a majority of the members of the board of directors (or other
governing body) of such corporation, other than shares having such power only by
reason of the happening of a contingency.
8.1. Other Definitions. As used herein the following terms have
the following respective meanings:
<PAGE>
"corporation" shall, where the context so permits, include an
association, joint stock company, business trust or other similar organization.
"person" shall mean an individual, a corporation, a partnership, a
trust, an unincorporated organization or a government or any agency or political
subdivision thereof.
"shares" of any corporation shall include any and all shares of capital
stock of such corporation of any class or other shares, interests,
participations or other equivalents (however designated) in the capital of such
corporation.
8.2. Accounting Terms and Principles. All accounting terms used herein
which are not expressly defined herein shall have the respective meanings given
to them in accordance with generally accepted accounting principles, all
computations made pursuant hereto shall be made in accordance with generally
accepted accounting principles and all financial statements shall be prepared in
accordance with generally accepted accounting principles.
(d) So long as any shares of Preferred Stock of any
series are outstanding:
(i) Dividends on the outstanding Preferred
Stock of each series shall be declared and
paid or set apart for payment before any
dividends shall be declared and paid or set
apart for payment on the Common Stock with
respect to the same quarterly dividend
period. Dividends on any shares of
Preferred Stock shall be cumulative only if
and to the extent set forth in a certificate
filed pursuant to law. After dividends on
all shares of Preferred Stock (including
cumulative dividends if and to the extent
any such shares shall be entitled thereto)
shall have been declared and paid or set
apart for payment with respect to any
quarterly dividend period, then and not
otherwise so long as any shares of the
Preferred Stock shall remain outstanding,
dividends may be declared and paid or set
apart for payment with respect to the same
quarterly dividend period on the Common
Stock out of the assets or funds of the
corporation legally available therefor.
<PAGE>
All shares of Preferred Stock of all
series shall be of equal rank, preference
and priority as to dividends irrespective of
whether or not the rates of dividends to
which the same shall be entitled shall be
the same and when the stated dividends are
not paid in full, the shares of all series
of the Preferred Stock shall share ratably
in the payment thereof in accordance with
the sums which would be payable on such
shares if all dividends were paid in full
provided, however, that any two or more
series of the Preferred Stock may differ
from each other as to the existence and
extent of the right to cumulative dividends,
as aforesaid.
(ii) In the event of any liquidation,
dissolution or winding up of the
corporation, whether voluntary or
involuntary, each series of Preferred Stock
shall have preference and priority over
the Common Stock for payment of the amount
to which such series of Preferred Stock
shall be entitled in accordance with the
provisions thereof and each holder of
Preferred Stock shall be entitled to be
paid in full his share of such amount,
or have a sum sufficient for the payment
in full set aside, before any payments shall
be made to the holders of the Common Stock.
If, upon liquidation, dissolution or winding
up of the corporation, the assets of the
corporation or proceeds thereof,
distributable among the holders of the
shares of all series of the Preferred Stock
shall be insufficient to pay, in full, the
preferential amount aforesaid, then such
assets, or the proceeds thereof, shall be
distributed among such holders ratably in
accordance with the respective amounts
which would be payable if all amounts
payable thereon were paid in full. After
the payment to the holders of Preferred
Stock of all such amounts to which they are
entitled, as above provided, the remaining
assets and funds of the corporation shall
be divided and paid to the holders of the
Common Stock.
(e) Except as required by law or as determined by the Board of
Directors pursuant to subdivision (b) of this Article FOURTH, the exclusive
rights to vote for the election of directors and for all other purposes shall be
vested in the holders of Common Stock, each share thereof from time to time
outstanding having voting power of one vote.
<PAGE>
FIFTH. The minimum amount of capital with which the corporation will
commence business is One Thousand Dollars ($1,000.00).
SIXTH. The corporation is to have perpetual existence.
SEVENTH. The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
EIGHTH. In furtherance and not in limitation of the powers conferred
by statute, the board of directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the real
and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
By resolution passed by a majority of the whole board, to designate one
or more committees, each committee to consist of two or more of the directors of
the corporation, which, to the extent provided in the resolution or in the
by-laws of the corporation, shall have and may exercise the powers of the board
of directors in the management of the business and affairs of the corporation,
and may authorize the seal of the corporation to be affixed to all papers which
may require it. Such committee or committees shall have such name or names as
may be stated in the by-laws of the corporation or as may be determined from
time to time by resolution adopted by the board of directors.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose, or when authorized by the
written consent of the holders of a majority of the voting stock issued and
outstanding, to sell, lease or exchange all of the property and assets of the
corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may be in whole or in
part shares of stock in, and/or other securities of, any other corporation or
corporations, as its board of directors shall deem expedient and for the best
interests of the corporation.
NINTH. Meetings of stockholders may be held outside the State of
Delaware, if the by-laws so provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
board of directors or in the by-laws of the corporation. Elections of directors
need not be by ballot unless the by-laws of the corporation shall so provide.
TENTH. The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
4. This Restated Certificate of Incorporation
was duly adopted by the Board of Directors of the Corporation in
accordance with Section 245 of the General Corporation Law of the State of
Delaware.
<PAGE>
IN WITNESS WHEREOF, said HELIX TECHNOLOGY CORPORATION has caused this
certificate to be executed by Richard F. Cole, President of the Corporation,
attested by Robert E. Blakelock, Secretary of the Corporation, and affixed with
the corporate seal, this 4th day of February, 1980.
HELIX TECHNOLOGY CORPORATION
By /s/ Richard F. Cole
Richard F. Cole, President
[Seal]
ATTEST:
By /s/ Robert E. Blakelock,
Robert E. Blakelock, Secretary
Commonwealth of Massachusetts )
) ss.
County of Middlesex )
Be it remembered that on the 4th day of February, A.D. 1980, personally
came before me, William Williams II, a Notary Public in and for the County and
State aforesaid, Richard F. Cole, President, and Robert E. Blakelock, Secretary
of a corporation of the State of Delaware, the corporation described in and
which executed the foregoing certificate, known to me personally to be such, and
they, the said Richard F. Cole and Robert E. Blakelock, as such President and
Secretary respectively, duly executed the said Certificate before me and
acknowledged the said Certificate to be their act and deed and the act and deed
of said corporation and the facts stated therein are true; that the signatures
of the said President and Secretary of said corporation to said foregoing
certificate are in the handwriting of the said President and Secretary of said
corporation, respectively, and that the seal affixed to said certificate is the
common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
NOTARIAL SEAL Notary Public
/s/ William Williams II
[Seal] My Commission Expires: 9/18/90
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
HELIX TECHNOLOGY CORPORATION
HELIX TECHNOLOGY CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, does hereby certify as follows:
FIRST: That the Board of Directors of said Corporation by unanimous
vote pursuant to Section 141 of the General Corporation Law of Delaware adopted
a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of the Corporation and directing that said
amendment be submitted to the stockholders for their review and consent:
VOTED: That this Board hereby declares the
advisability of an amendment to the Restated
Certificate of Incorporation of the
Corporation to add a new Article ELEVENTH,
and that said Article ELEVENTH shall be and
read in its entirety as follows:
Elimination of Certain Liability of Directors. A director of this
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. No amendment to or
repeal of this provision shall apply to or have any effect on the liability or
alleged liability of any director for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal.
and further
VOTED: That the foregoing amendment to the Restated
Certificate of Incorporation shall be
presented to the stockholders for approval
at the 1987 Annual Meeting and that, upon
approval of such amendment, the proper
officers of the Corporation are authorized
to execute and file with the Secretary of
the State of Delaware a Certificate of
Amendment to the Restated Certificate of
Incorporation of the Corporation, setting
forth the amendment so adopted, and upon
such filing, such amendment shall be
effective.
<PAGE>
SECOND: That thereafter, pursuant to the resolution of the Board of
Directors, the 1987 Annual Meeting of the stockholders of the Corporation was
duly called and held, upon notice in accordance with Section 222 of the General
Corporation law of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced
under or by reason of the aforesaid amendment.
IN WITNESS WHEREOF, HELIX TECHNOLOGY CORPORATION has caused this
Certificate to be signed by Robert J. Lepofsky, its President, and Robert E.
Blakelock, its Secretary, this 27th day of April 1987.
[Seal] HELIX TECHNOLOGY CORPORATION
By: /s/ Robert J. Lepofsky
Robert J. Lepofsky
President
ATTEST: /s/ Robert E. Blakelock
Robert E. Blakelock, Secretary
COMMONWEALTH OF MASSACHUSETTS
County of Suffolk, ss.
BE IT REMEMBERED, that on this 27th day of April 1987 personally came
before me a Notary Public in and for the County and Commonwealth as aforesaid,
Robert J. Lepofsky, President, and Robert E. Blakelock, Secretary, of HELIX
TECHNOLOGY CORPORATION, and they duly executed the foregoing Certificate before
me and severally acknowledged the said Certificate to be their act and deed and
the act and deed of said Corporation and that the facts stated therein are true;
that the signatures of the said officers are in their handwriting and that the
seal affixed to said Certificate is the common or corporate seal of said
Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
/s/Kathleen S. Tillotsan
Notary Public
My Commission Expires: November 13, 1992
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
HELIX TECHNOLOGY CORPORATION
HELIX TECHNOLOGY CORPORATION, a corporation organized and existing under the
laws of the State of Delaware, does hereby certify as follows:
FIRST: That the Board of Directors of said Corporation by unanimous
vote pursuant to Section 141 of the General Corporation Law of Delaware adopted
a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of the Corporation and directing that said
amendment be submitted to the stockholders for their review and consent:
VOTED: That the Board of Directors of Helix
Technology Corporation hereby approves and
declares advisable an amendment to the
Restated Certificate of Incorporation of
this Corporation as follows:
That ARTICLE FOURTH (a) of the Restated
Certificate of Incorporation of this
Corporation be and it is hereby amended to
increase the number of authorized shares of
capital stock of the Corporation from
7,000,000 to 12,000,000 so that said
PARTICLE FOURTH (a) shall be and read as
follows:
FOURTH. (a) The total number of shares of stock which the Corporation
is authorized to issue is 12,000,000, of which 10,000,000 shares shall be common
stock, par value of $1 per share ("Common Stock") and 2,000,000 shall be
preferred stock, par value $1 per share ("Preferred Stock").
and further,
VOTED: That the foregoing amendment to the Restated
Certificate of Incorporation of this
Corporation be submitted to the stockholders
of this Corporation for their approval at
the 1988 Annual Meeting of Stockholders.
SECOND: That thereafter, pursuant to the resolution of the Board of
Directors, the 1988 Annual Meeting of the Stockholders of the Corporation was
duly called and held, upon notice in accordance with Section 222 of the General
Corporation Law of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
<PAGE>
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation law of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced
under or by reason of the aforesaid amendment.
IN WITNESS WHEREOF, HELIX TECHNOLOGY CORPORATION has caused this
Certificate to be signed by Robert J. Lepofsky, its President, and Robert E.
Blakelock, its Secretary, this 11th day of May 1988.
[Seal] HELIX TECHNOLOGY CORPORATION
By: /s/Robert J. Lepofsky
Robert J. Lepofsky
President
ATTEST: /s/Robert E. Blakelock
Robert E. Blakelock, Secretary
COMMONWEALTH OF MASSACHUSETTS
County of Middlesex, ss.
BE IT REMEMBERED, that on this 10th day of May 1988 personally came
before me a Notary Public in and for the County and Commonwealth as aforesaid,
Robert J. Lepofsky, President, and Robert E. Blakelock, Secretary, of HELIX
TECHNOLOGY CORPORATION, and they duly executed the foregoing Certificate before
me and severally acknowledged the said Certificate to be their act and deed and
the act and deed of said Corporation and that the facts stated therein are true;
that the signatures of the said officers are in their handwriting and that the
seal affixed to said Certificate is the common or corporate seal of said
Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal of office the
day and year aforesaid.
/s/Doris G Gillimore
Notary Public
My Commission expires:
September 3, 1993
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
HELIX TECHNOLOGY CORPORATION
HELIX TECHNOLOGY CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, does hereby certify as follows:
FIRST: That the Board of Directors of said Corporation by unanimous
vote pursuant to Section 141 of the General Corporation Law of Delaware adopted
a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of the Corporation and directing that said
amendment be submitted to the stockholders for their review and consent:
VOTED: That the Board of Directors of Helix Technology
Corporation hereby approves and declares advisable an
amendment to the Restated Certificate of
Incorporation of this Corporation as follows:
That ARTICLE FOURTH (a) of the Restated Certificate
of Incorporation of this Corporation be and it is
hereby amended to increase the number of authorized
shares of capital stock of the Corporation from
12,000,000 to 32,000,000 so that said ARTICLE FOURTH
(a) shall be and read as follows:
FOURTH. (a) The total number of shares of capital stock which the
Corporation is authorized to issue is 32,000,000, of which 30,000,000 shares
shall be common stock, par value $1 per share ("Common Stock") and 2,000,000
shares shall be preferred stock, par value $1 per share ("Preferred Stock").
and further,
VOTED: That the foregoing amendment to the Restated
Certificate of Incorporation of this Corporation be
submitted to the stockholders of this Corporation for
their approval at the 1995 Annual Meeting of
Stockholders.
SECOND: That thereafter, pursuant to the resolution of the Board of
Directors, the 1995 Annual Meeting of Stockholders of the Corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under
or by reason of the aforesaid amendment.
<PAGE>
IN WITNESS WHEREOF, HELIX TECHNOLOGY CORPORATION has caused this
Certificate to be signed by Robert J. Lepofsky, its President, and William
Williams II, its Assistant Secretary, this 20th day of April, 1995.
(SEAL) HELIX TECHNOLOGY CORPORATION
By:/s/ Robert J. Lepofsky
Robert J. Lepofsky, President
ATTEST:/s/ William Williams II
William Williams II,
Assistant Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
HELIX TECHNOLOGY CORPORATION
HELIX TECHNOLOGY CORPORATION, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), does hereby certify
as follows:
FIRST: That the Board of Directors of said Corporation by unanimous
vote pursuant to Section 141 of the General Corporation Law of Delaware adopted
a resolution proposing and declaring advisable the following amendment to the
Restated Certificate of Incorporation of the Corporation and directing that said
amendment be submitted to the stockholders for their review and consent:
VOTED: That the Board of Directors of Helix Technology
Corporation hereby approves and declares advisable an
amendment to the Restated Certificate of
Incorporation of this Corporation as follows:
That ARTICLE FOURTH (a) of the Restated Certificate
of Incorporation of this Corporation be and it is
hereby amended to increase the authorized shares of
capital stock of the Corporation from 32,000,000 to
62,000,000 so that said ARTICLE FOURTH (a) shall be
and read as follows:
FOURTH. (a) The total number of shares of capital stock which the
Corporation is authorized to issue is 62,000,000, of which 60,000,000 shares
shall be common stock, par value $1 per share ("Common Stock") and 2,000,000
shares shall be preferred stock, par value $1 per share ("Preferred Stock").
and further,
VOTED: That the foregoing amendment to the Restated
Certificate of Incorporation of this Corporation be
submitted to the stockholders of this Corporation for
their approval at the 1998 Annual Meeting of
Stockholders.
SECOND: That thereafter, pursuant to the resolution of the Board of
Directors, the 1998 Annual Meeting of Stockholders of the Corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation Law of Delaware, at which meeting the necessary number of shares as
required by statute were voted in favor of the amendment.
THIRD: That the aforesaid amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
Delaware.
FOURTH: That the capital of the Corporation shall not be reduced under
or by reason of the aforesaid amendment.
<PAGE>
IN WITNESS WHEREOF, HELIX TECHNOLOGY CORPORATION has caused this
Certificate to be signed by Robert J. Lepofsky, its President, and William
Williams II, its Assistant Secretary, this 29th day of April, 1998.
(SEAL) HELIX TECHNOLOGY CORPORATION
By:/s/ Robert J. Lepofsky
Robert J. Lepofsky, President
ATTEST:/s/ William Williams II
William Williams II,
Assistant Secretary
