<PAGE>
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM 8-K/A
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): SEPTEMBER 9, 1997
---------------------
CONSILIUM, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 0-17754 94-2523965
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
485 CLYDE AVENUE, MOUNTAIN VIEW, CA 94043
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (415) 961-6100
(Former name, former address and former fiscal year, if changed since last
report)
================================================================================
This report consists of 3 pages.
<PAGE>
The registrant hereby amends Item 7 to read in full as follows:
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) To be filed by amendment on or before October 15, 1997.
(b) The registrant has not yet determined whether the filing of pro forma
financial statements may be required pursuant to Article II of Registration S-X.
The registrant intends to file all required pro forma financial information on
or before October 15, 1997.
(c) The following exhibit is attached hereto and filed herewith and shall
be deemed to be the Exhibit Index:
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
2.1 *Asset Purchase Agreement dated July 31, 1997 by and among
the registrant, FAST Associates Pte., Ltd. and Ng Boon
Thiong.
</TABLE>
*Subject to a request for confidential treatment.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: September 9, 1997 CONSILIUM, INC.
By: /s/ Clifton Wong
-----------------
Clifton Wong, Vice-President, Finance
and Chief Financial Officer
3
<PAGE>
EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
------------------------
THIS ASSET PURCHASE AGREEMENT ("Agreement") dated as of July ____, 1997 is
entered into by and among Consilium, Inc., a Delaware corporation ("Consilium"),
and Fast Associates Pte., Ltd., a Singapore corporation (hereinafter "FAST") and
Ng Boon Thiong, who is the managing director and principal shareholder of FAST
("Shareholder").
RECITALS
--------
A. FAST owns certain assets, rights and properties utilized in or
relating to the provision of systems integration consulting services.
B. Consilium wishes to purchase, and FAST wishes to sell, certain of the
assets of FAST.
C. Concurrent with the closing of the asset purchase contemplated by this
Agreement, the Shareholder, all other full-time employees of FAST, and certain
independent contractors of FAST will become employees of Consilium.
D. In consideration of FAST and the Shareholder executing and delivering
this Agreement and consummating the transactions contemplated hereby, Consilium
has agreed to provide certain consideration, as more particularly described
herein.
NOW, THEREFORE, in consideration of the representations, warranties and
agreements herein contained, the parties above agree as follows:
ARTICLE I
DEFINITIONS
-----------
Unless otherwise defined herein, when used in this Agreement the following
terms shall have the following meanings:
1.1 "Purchased Assets" shall mean all of the assets of FAST to be acquired
----------------
by Consilium, as set forth on Schedule 1.1 attached hereto, including, but not
------------
limited to, inventory, fixed assets of FAST (the "Fixed Assets"), work-in-
process, certain existing contracts of FAST, and all of FAST's right, title, and
interest in the leasehold interest in the premises described in the Lease [or
leases], but not including the Excluded Assets.
1.2 "Excluded Assets" shall mean the assets of FAST which will not be
---------------
acquired by Consilium as provided on Schedule 1.2 attached hereto.
------------
[*]= Text deleted pursuant to a Confidential Treatment Request.
1
<PAGE>
1.3 "Closing" shall mean the closing of the transactions contemplated by
-------
this Agreement.
1.4 "Closing Date" shall mean August 1, 1997 or as soon thereafter as
------------
possible, or such other date as the parties mutually agree to in writing.
1.5 "FAST Liabilities" shall mean any and all liabilities, obligations or
----------------
commitments of any nature of FAST whether known or unknown, contingent or fixed
or otherwise (including without limitation any liability, obligation or
commitment arising out of any contract entered into by FAST.)
1.6 "Lease" [or Leases] shall mean the lease [or leases] set forth on
------------------
Schedule 1.6 attached hereto.
- ------------
1.7 "Product Licensing Net Revenue" shall mean revenue [*]
-----------------------------
1.8 "Product Maintenance Net Revenue" shall mean revenue [*]
-------------------------------
1.9 "Region" shall mean Singapore, Malaysia, Thailand and the Philippines,
------
and (i) as to Taiwan, for contracts entered into prior to the Closing Date, only
the existing FAST customers listed in Schedule 1.9 hereto, and all contracts
------------
entered into by Consilium in Taiwan after the Closing Date, and (ii) as to
China, customers to be mutually agreed upon by Consilium and FAST.
1.10 "SI/Services Net Operating Margin" shall mean revenue [*]
--------------------------------
ARTICLE II
PURCHASE AND SALE
-----------------
2.1 Purchase and Sale. Subject to and upon the terms and conditions
-----------------
of this Agreement, on the Closing Date, FAST shall sell, assign, transfer,
convey and deliver to Consilium and Consilium shall purchase from FAST, free and
clear of all liens and encumbrances, all of FAST's right, title and interest in
and to the Assets, as identified in Schedule 1.1 attached hereto.
------------
2.2 Excluded Assets. Notwithstanding any other term or provision of this
---------------
Agreement to the contrary, the Assets shall not include, and Consilium is not
acquiring hereunder, the Excluded Assets as identified on Schedule 1.2 attached
------------
hereto.
2.3 Aggregate Consideration. In consideration of FAST's obligations
-----------------------
hereunder, Consilium shall pay FAST, in the aggregate (i) 120,000 shares of
Consilium's Common Stock, par value $.01 (the "Stock Payment"), and (ii) the
performance payments, as
[*]= Text deleted pursuant to a Confidential Treatment Request.
2
<PAGE>
determined in Section 2.4 below (the "Performance Payments"). The Stock Payment
-----------
and the Performance Payments are hereinafter collectively referred to as the
"Aggregate Consideration").
2.4 Performance Payments.
--------------------
2.4.1 Consilium will pay to the Shareholder an amount, for each of
the three twelve-month periods ending on the first anniversary of the Closing
Date (the "First Performance Period"), the second anniversary of the Closing
Date (the "Second Performance Period") and the third anniversary of the Closing
Date (the "Third Performance Period"), equal to the sum of (a) 45% of
SI/Services Net Operating Margin, for each such performance period; (b) 10% of
the Product License Net Revenue for each such performance period; and (c) 2.5%
of the Product Maintenance Net Revenue for each such performance period (each
such payment being a "Performance Payment" and collectively referred to as the
"Performance Payments"). The estimated base performance payments are as follows:
[*]
2.4.2 Of the amounts due to the Shareholder as Performance Payments,
U.S. $1,500,000 (the "Guaranteed Performance Payment") shall be guaranteed to be
paid to the Shareholder (subject to Section 2.4.7 hereof); U.S. $300,000 of such
amount shall be paid on the Closing Date, and an additional U.S. $300,000 shall
be paid every ninety (90) days thereafter until the entire Guaranteed
Performance Payment has been made. Any Performance Payment due for the First
Performance Period over and above U.S. [*] (as adjusted pursuant to Section
2.4.4 and subject to Section 2.4.7) shall be paid to the Shareholder, within
ninety (90) days of the conclusion of the First Performance Period. Any
Performance Payment due for the Second Performance Payment (as adjusted pursuant
to Sections 2.4.3 and 2.4.4 and subject to Section 2.4.7), less U.S. $300,000
(which will have been paid as part of the Guaranteed Performance Payment) shall
be paid to the Shareholder, within ninety (90) days of the conclusion of the
Second Performance Period. Any Performance Payment due for the Third Performance
Period (as adjusted pursuant to Sections 2.4.3 and 2.4.4 and subject to Section
2.4.7), shall be paid to the Shareholder, within ninety (90) days of the
conclusion of the Third Performance Period.
2.4.3 If the amount of the Performance Payment for the First
Performance Period, as calculated pursuant to Section 2.4.1 hereof, is less than
[*], then any Performance Payment to be paid to the Shareholder for the Second
Performance Period and, if necessary, the Third Performance Period, shall be
reduced by the amount of the difference between [*] and the amount of the
Performance Payment for the First Performance Period. If the amount of the
Performance Payment for the Second Performance Period, as calculated pursuant to
Section 2.4.1 hereof, is less than U.S. [*], then any Performance Payments to be
paid to the Shareholder for the Third Performance Period shall be reduced by the
amount of the difference between [*] and the amount of the Performance Payment
for the Second Performance Period.
2.4.4 If Consilium has not actually received payment for any of the
SI/Services Revenue, Product Licensing Revenue or Product Maintenance Revenue
included in
[*]= Text deleted pursuant to a Confidential Treatment Request.
3
<PAGE>
the calculation of the Performance Payment for any Performance Period within
ninety (90) days of the end of such Performance Period, then the amount of the
Performance Payment for the Performance Period shall be reduced by the amount of
such shortfall in collections. The amount of such shortfalls in collections
deducted from the Performance Payment for the First Performance Period or the
Second Performance Period shall be paid as part of the Performance Payment for
the Second Performance Period or the Third Performance Period if received during
such Performance Period. Only the amount of such shortfalls in collections
deducted from the Performance Payment for the First Performance Period, Second
Performance Period or Third Performance Period received by Consilium within
twelve months from the conclusion of the Third Performance Period shall be paid
by Consilium to the Shareholder, at the sole option of Consilium, in cash, in
Consilium Common Stock, or partially in cash and partially in Consilium Common
Stock, within sixty (60) days of the receipt of such collections.
2.4.5 The Guaranteed Performance Payment and each of the Performance
Payments shall be made to the Shareholder, at the sole option of Consilium, in
cash, in Consilium Common Stock, or partially in cash and partially in Consilium
Common Stock. If any Performance Payment is to be made wholly or partially in
Consilium Common Stock, the aggregate number of shares of Consilium Common Stock
representing such Performance Payment, or a portion thereof, as applicable,
shall be determined by dividing the amount of the Performance Payment, or a
portion thereof, as applicable, by the average closing price of Consilium Common
Stock as quoted on the Nasdaq National Market for the thirty (30) consecutive
trading days immediately preceding the date payment is due.
2.4.6 The Aggregate Consideration hereunder was established in part
on the basis of the Fixed Assets of FAST having a dollar value as of the Closing
of at least U.S. $200,000; prior to the Closing, or as soon thereafter as
practicable, Arthur Andersen LLP, shall conduct, at Consilium's expense, an
audit of the financial records of FAST provided as of the Closing Date. Should
such audit conclude that the value of the Fixed Assets as of the Closing Date is
not at least $200,000, the difference between U.S. $200,000 and the actual value
of the Fixed Assets shall be deducted by Consilium from any amounts otherwise
due as a Performance Payment hereunder.
2.4.7 If at any time prior to the three-year anniversary of the
Closing Date, the Shareholder voluntarily terminates his employment with
Consilium or is terminated for cause (as that term is defined in the offer
letters to be signed by the Shareholder pursuant to Section 7.6 hereof),
Consilium will have no further duty to make any Performance Payment which would
otherwise be due under this Agreement; provided, however, that all other rights
and obligations of the parties under this Agreement shall continue in full force
and effect.
2.4.8 If Consilium, prior to the time any Performance Payment
hereunder becomes due and owing, should become entitled to indemnification under
Section 9 hereof, it shall have the right to deduct the amount of the Claim (as
defined in Section 9 hereof) for which it is entitled to be indemnified from the
Performance Payment to be made to FAST.
[*]= Text deleted pursuant to a Confidential Treatment Request.
4
<PAGE>
2.5 Taxes; Form of Payment. Any cash payment made by Consilium pursuant
----------------------
to this Section 2 shall be made net of and after provision for payment of any
Tax (as defined below) required to be withheld by Consilium on such payment and
shall be made by check mailed to FAST, or the Shareholder, as applicable, at the
address set forth herein, unless modified by FAST or the Shareholder in writing
following the Closing Date.
2.6 Allocation of Aggregate Consideration. The Aggregate Consideration
-------------------------------------
shall be allocated to the Assets as determined in Schedule 2.6 hereto. The
parties shall file all tax returns (including amended returns and claims for
refund) and information reports in a manner consistent with such allocation, and
shall use their reasonable best efforts to sustain such allocation in any
subsequent tax audit or tax dispute.
2.7 Assumption of Liabilities. Except as to those liabilities set forth
-------------------------
on Schedule 2.7 attached hereto, Consilium shall not assume or become liable or
obligated in any way, and FAST shall retain and remain solely liable for and
obligated to discharge and indemnify and hold Consilium harmless for, all debts,
expenses, accounts payable, contracts, agreements, commitments, obligations,
claims, suits and other liabilities of any nature whatsoever, whether or not
related to the Purchased Assets, whether known or unknown, accrued or not
accrued, fixed or contingent, current or arising hereafter, including without
limitation any of the following:
2.7.1 Any liability arising out of or as a result of any legal or
equitable action or judicial or administrative proceeding initiated at any time;
2.7.2 Any liability for Taxes (as defined herein) for periods prior
to the Closing Date and any Tax resulting from the sale or transfer of the
Purchased Assets;
2.7.3 Any liability arising under any oral or written agreement
between FAST and any of its employees or independent contractors;
2.7.4 Any liabilities related to or arising from any breach or
default by FAST, whether before or after the Closing Date, of any contract or
related to or arising from any tort, infringement or violation of law by FAST
that occurred (or arose from facts occurring) on or prior to the Closing Date;
2.7.5 Any liability of FAST incurred in connection with or under this
Agreement (including without limitation with respect to any of FAST's
representations, warranties, agreements, covenants or indemnities hereunder) in
relation to the execution or performance of this Agreement and the transactions
contemplated hereby;
2.7.6 Any fees or expenses incurred by FAST hereunder with respect to
engagement of its counsel, or any investment banker, appraiser or accounting
firm engaged to perform services hereunder.
[*]= Text deleted pursuant to a Confidential Treatment Request.
5
<PAGE>
ARTICLE III
THE CLOSING
-----------
3.1 The Closing. The Closing shall take place at the offices of Gray Cary
-----------
Ware & Freidenrich at 400 Hamilton Avenue, Palo Alto, California, or at such
other location as FAST and Consilium may agree, at 2:00 p.m. Pacific Standard
Time, on the Closing Date; except that possession of the Assets shall be
delivered at the existing FAST offices in Singapore on the Closing Date.
3.2 Possession; Bills of Sale. At the Closing, FAST will deliver to
-------------------------
Consilium full possession and enjoyment of each of the Assets, and such
instruments of sale, assignment and transfer conveying all right, title and
interest to all of the Assets to Consilium, all in such form as Consilium may
reasonably request.
3.3 Stock Payment; Guaranteed Payment. At the Closing, Consilium will
---------------------------------
deliver to FAST certificates of Common Stock of Consilium representing the Stock
Payment (which shall be subject to registration rights as set forth on Exhibit A
---------
hereto) and the first U.S. [*] of the Guaranteed Performance Payment (which may
be paid at least at ninety percent (90%) in Consilium Common Stock and the
remainder in cash, pursuant to Section 2.4.5).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
OF FAST AND THE SHAREHOLDER
---------------------------
Except as set forth in the disclosure schedule delivered by FAST and the
Shareholder to Consilium and attached hereto (the "Disclosure Schedule"), FAST
and the Shareholder, jointly and severally, hereby represent and warrant to
Consilium as follows:
4.1 Organization. FAST is a corporation duly organized, validly existing
------------
and in good standing under the laws of the Singapore.
4.2 Authorization. This Agreement has been duly and validly executed and
-------------
delivered by FAST and the Shareholder and constitutes a valid and binding
agreement of FAST and the Shareholder enforceable against FAST and the
Shareholder in accordance with its terms, except as limited by laws affecting
creditors' rights generally and by the discretion of a court to order specific
performance. FAST has all requisite power and authority to execute and deliver
this Agreement and the other agreements contemplated hereby (the "Ancillary
Documents") and to carry out the transactions contemplated by this Agreement.
All necessary corporate action on the part of FAST has been taken to authorize
the execution and delivery of this Agreement. The Shareholder has full power,
authority and capacity to execute this Agreement and the Ancillary Documents to
carry out the transactions contemplated hereby.
[*]= Text deleted pursuant to a Confidential Treatment Request.
6
<PAGE>
4.3 No Conflicts; Consents. The execution and the delivery of this
----------------------
Agreement and Ancillary Documents by FAST and the Shareholder does not, and the
consummation of the transactions contemplated hereby will not result in a breach
of, constitute a default (with or without notice or lapse of time, or both)
under or violation of, or result in the creation of any lien, charge or
encumbrance pursuant to any provision of the Articles of Association or Bylaws
of FAST, any order, rule, law or regulation of any court or governmental
authority, foreign or domestic, or any provision of any material agreement,
instrument, understanding, order, judgment or decree to which FAST or the
Shareholder is a party or by which FAST or any of its properties or assets is
bound or affected, nor will such actions give to any other person or entity any
interests or rights of any kind, including rights of termination, acceleration
or cancellation, in or with respect to any of the Assets. No consent of any
third party or any governmental authority is required to be obtained on the part
of FAST or the Shareholder to permit the consummation of the transactions
contemplated by this Agreement or the Ancillary Documents.
4.4 Title to Assets. FAST has good, valid and marketable title to all of
---------------
the Assets free and clear of any liabilities, liens, pledges, mortgages,
restrictions and encumbrances of any kind ("Encumbrances"). At the Closing,
FAST will sell, convey, assign, transfer and deliver to Consilium good, valid
and marketable title and all of FAST's rights and interests in and to all of the
Assets, free and clear of any Encumbrances.
4.5 Litigation. There is no action, suit, proceeding or investigation in
----------
progress or pending before any court or governmental agency, against or relating
to FAST or its properties, assets or business, nor, to the best knowledge of
FAST, any threat thereof or any basis therefor. FAST is not a party to any
decree, order or arbitration award (or agreement entered into in any
administrative, judicial or arbitration proceeding with any governmental
authority) with respect to the properties, assets, personnel or business
activities of FAST's business.
4.6 Compliance with Laws and Regulations; Governmental Licenses, Etc. To
----------------------------------------------------------------
the best of FAST's knowledge, FAST is in compliance in all material respects
with all statutes, laws, rules and regulations with respect to or affecting
FAST's use and enjoyment of the Assets, including, without limitation, laws,
rules and regulations relating to occupational health and safety, equal
employment opportunities, fair employment practices, and sex, race, religious
and age discrimination. To the best of FAST's knowledge, and FAST has received
no notice to the contrary, (1) FAST is not subject to any order, injunction or
decree issued by any governmental body, agency, authority or court which could
impair the ability of FAST to consummate the transactions contemplated hereby or
which could materially adversely affect FAST's use and enjoyment of the Assets,
and (2) FAST possesses all licenses, permits and governmental or other
regulatory approvals and authorizations which are required in order for FAST to
operate its business as presently conducted, and is in compliance in all
material respects with all such licenses, permits, approvals and authorizations.
4.7 Taxes. FAST has timely filed within the time period for filing or any
-----
extension granted with respect thereto all returns and reports relating to any
and all Taxes or any
[*]= Text deleted pursuant to a Confidential Treatment Request.
7
<PAGE>
other governmental charges, obligations or fees for Taxes required to be filed
by it with respect to its business and the Assets and such returns and reports
are true and correct. The term "Taxes" shall mean all taxes, however
denominated, including any interest, penalties or other additions to tax that
may become payable in respect thereof, imposed by any federal, territorial,
state, local or foreign government or any agency or political subdivision of any
such government, which taxes shall include, without limitation the generality of
the foregoing, all income or profits taxes (including, but not limited to,
federal income taxes and state income taxes), real property gains taxes, payroll
and employee withholding taxes, unemployment insurance taxes, social security
taxes, sales and use taxes, ad valorem taxes, excise taxes, franchise taxes,
gross receipts taxes, business license taxes, occupation taxes, transfer taxes,
workers' compensation premiums and other governmental charges, and other
obligations of the same or of a similar nature to any of the foregoing, which
FAST is required to pay, withhold or collect. FAST has paid all Taxes, if any,
shown to be due and payable on said returns and reports and have withheld with
respect to employees all Taxes required to be withheld and have timely paid all
sales, use and similar Taxes. No income, sales, use or similar Tax return or
report of FAST has been examined or audited by any taxing authority. There are
no pending or, to the best of FAST's knowledge, threatened, audits,
examinations, assessments, asserted deficiencies or claims for additional Taxes.
4.8 Proprietary Rights.
------------------
4.8.1 FAST owns all rights, titles and patents, interest in and to or
has obtained licenses to use all technology, software, software tools, know-how,
processes, trade secrets, service marks, trade names, copyrights and other
proprietary rights included in the Assets. Schedule 4.8 contains an accurate and
complete description of (i) all trademarks and tradenames in or related to the
Assets, and a list of all licenses and other agreements relating thereto, and
(ii) a list of all licenses and other agreements with third parties (the "Third
Party Licenses") relating to any software, technology, know-how, or processes
that FAST is licensed or otherwise authorized by such third parties to use,
market, distribute or incorporate into the Assets (such software, technology,
know-how and processes are collectively referred to as the "Third Party
Technology"). No claims have been asserted against FAST (and FAST is not aware
of any claims which are likely to be asserted against it or which have been
asserted against others) by any person challenging FAST's use or distribution of
any patents, trademarks, tradenames, copyrights, trade secrets, software,
technology, know-how or processes utilized by FAST or challenging or questioning
the validity or effectiveness of any license or agreement relating thereto. To
the best knowledge of FAST, none of the Assets nor the use of any patents,
trademarks, tradenames, copyrights, software, technology, know-how or processes
contained in the Assets infringes on the rights of, constitutes misappropriation
of, or in any way involves unfair competition with respect to, any proprietary
information or intangible property right of any third person or entity,
including without limitation any patent, trade secret, copyright, trademark or
tradename.
4.8.2 Except as set forth in Schedule 4.8, FAST has not granted any
third party any right to manufacture, reproduce, distribute, market or exploit
any of the Assets or any adaptations, translations, or derivative works based on
the Assets or any portion thereof.
[*]= Text deleted pursuant to a Confidential Treatment Request.
8
<PAGE>
4.8.3 All designs, drawings, specifications, source code, object
code, documentation, flow charts and diagrams incorporating, embodying or
reflecting any of the Assets at any stage of their development were written,
developed and created solely and exclusively by employees of FAST without the
assistance of any third party or entity or were created by third parties who
assigned ownership of their rights to FAST in valid and enforceable consultant
confidentiality and invention assignment agreements. FAST has kept secret and
has not disclosed the source code for the software included within the Assets to
any person or entity other than certain employees of FAST who are subject to the
terms of a binding confidentiality agreement with respect thereto other than
FAST has taken all appropriate measures to protect the confidential and
proprietary nature of such software.
4.9 Accuracy of Material Facts; Copies of Materials. No representation,
-----------------------------------------------
warranty or covenant of FAST or the Shareholder contained in this Agreement or
in any written statement delivered pursuant hereto or in materials delivered to
Consilium in connection with the transactions contemplated hereby contains or
shall contain any untrue statement of a material fact known or believed to be
untrue and when made or omits to state material facts known or reasonably
believed to be necessary in order to make the statement contained therein not
misleading. FAST and the Shareholder have delivered true, complete and accurate
copies of each contract, agreement, license, lease and similar document (or
summaries of same) referred to in any Exhibit or Schedule hereunder or included
in the Assets to the extent required by this Agreement or requested by
Consilium.
4.10 Contracts.
---------
4.10.1 Schedule 4.10 lists all contracts currently in force with any
third party, including but not limited to, (i) agreements, contracts or
commitments that call for fixed and/or contingent payments or expenditures by or
to FAST of more than Ten Thousand Dollars ($10,000); or (ii) agreements,
contracts or commitments with officers, employees, agents, consultants,
advisors, salesmen, sales representatives, distributors or dealers that are not
cancelable by it on notice of not longer than thirty (30) days and without
liability, penalty or premium; or (iii) agreements to loan or advance any sums
to any person, any line of credit, standby financing, revolving credit or other
similar financing arrangement of any sort.
4.10.2 FAST is not restricted by agreement from carrying on its
business anywhere in the world.
4.10.3 Except as set forth on Schedule 4.10, FAST is not under any
liability or obligation, and no such outstanding claim has been made, with
respect to the return of inventory or merchandise in the possession of
wholesalers, distributors, retailers, or other customers, except such
liabilities, obligations and claims as, in the aggregate, do not exceed Ten
Thousand Dollars ($10,000).
[*]= Text deleted pursuant to a Confidential Treatment Request.
9
<PAGE>
4.10.4 FAST has not guaranteed any obligations of other persons or
made any agreements to acquire or guarantee any obligations of other persons.
4.10.5 All material contracts, agreements and instruments to which
FAST is a party are valid, binding, in full force and effect, and enforceable by
FAST in accordance with their respective terms. No such material contract,
agreement or instrument contains any material liquidated damages, penalty or
similar provision. To the best of FAST's knowledge, no party to any such
material contract, agreement or instrument intends to cancel, withdraw, modify
or amend such contract, agreement or arrangement. The term "material" as used in
this Section 4.10.5 shall mean any contract, agreement or instrument or any
liquidated damages, penalty or similar provision, as applicable, with a value in
excess of $10,000.
4.10.6 FAST is not in default under or in breach or violation of,
nor, to FAST's knowledge, is there any valid basis for any claim of default by
FAST under, or breach or violation by FAST of, any contract, commitment or
restriction to which FAST is a party or to which it or any of its properties is
bound, where such defaults, breaches, or violations would, in the aggregate,
have a material adverse effect on the operations, assets, financial condition or
prospects of FAST. To the best of FAST's knowledge, no other party is in default
under or in breach or violation of, nor is there any valid basis for any claim
of default by any other party under or any breach or violation by any other
party of, any material contract, commitment, or restriction to which FAST is
bound or by which any of its properties is bound, where such defaults, breaches,
or violations would, in the aggregate, have a material adverse effect on the
operations, assets, financial condition or prospects of FAST.
4.11 Labor Difficulties. FAST is not engaged in any unfair labor practice
------------------
or in violation of any applicable laws respecting employment, employment
practices or terms and conditions of employment. There is no unfair labor
practice complaint against FAST pending, or to the best of FAST's knowledge
threatened, before any governmental entity. There is no strike, labor dispute,
slowdown, or stoppage pending, or to the best of FAST's knowledge threatened,
against FAST. FAST is not now and has never been subject to any union
organizing activities. FAST has never experienced any work stoppage or other
labor difficulty. To the best of FAST's knowledge, (i) the consummation of the
transactions contemplated by this Agreement will not have a material adverse
effect on FAST's relations with FAST employees, and (ii) all full-time FAST
employees intend to employment with Consilium upon consummation of the
transactions contemplated by this Agreement.
4.12 Trade Regulation. To the best of FAST's knowledge, all of the prices
----------------
charged by FAST in connection with the marketing or sale of any FAST products or
services have been in compliance with all applicable laws and regulations. No
claims have been asserted or, to the best of FAST's knowledge, threatened
against FAST with respect to the wrongful termination of any dealer, distributor
or any other marketing entity, discriminatory pricing, price fixing, unfair
competition, false advertising, or any other material violation of any laws or
regulations relating to
[*]= Text deleted pursuant to a Confidential Treatment Request.
10
<PAGE>
anti-competitive practices or unfair trade practices of any kind, and, to the
best of FAST's knowledge, no specific situation, set of facts, or occurrence
provides any basis for any such claim.
4.13 Environmental Matters.
---------------------
4.13.1 As of the date hereof and as of the Closing no substance that
is regulated by any Governmental Entity or that has been designated by any
Governmental Entity to be radioactive, toxic, hazardous or otherwise a danger to
health or the environment (herein a "Hazardous Material") is present in, on or
under any property that FAST has at any time owned, operated, occupied or leased
(each such property is referred to herein as a "FAST Facility").
4.13.2 FAST has not transported, stored, used, manufactured, released
or exposed any of its employees or any other person to Hazardous Materials (a
"Hazardous Materials Activity") in violation of any applicable local, state or
federal statute, rule, regulation, order or law.
4.13.3 No action, proceeding, permit, revocation, writ, injunction or
claim is pending or, to the best of FAST's knowledge, threatened concerning
Hazardous Materials Activities of FAST or any of FAST's Facilities and FAST is
not aware of any fact or circumstance which could involve FAST in any
environmental litigation or impose any environmental liability upon FAST.
4.14 Employee Benefits.
-----------------
4.14.1 Section 4.14 of the FAST Disclosure Schedule lists (i) all
pension, retirement, and profit sharing plans, (ii) all bonus, stock option,
stock purchase, incentive, deferred compensation, supplemental retirement,
severance and other similar employee benefit plans, and (iii) all unexpired
severance agreements, written or otherwise, for the benefit of, or relating to,
any current or former employee of FAST or any trade or business (whether or not
incorporated) which is a member or which is under common control with FAST
within the meaning of Section 414 of the Code (together, the "FAST Employee
Plans").
4.14.2 With respect to each FAST Employee Plan, FAST has made
available to Consilium a true and correct copy of (i) such FAST Employee Plan
and (ii) each trust agreement and group annuity contract, if any, relating to
such FAST Employee Plan.
4.14.3 With respect to the FAST Employee Plans, individually and in
the aggregate, no event has occurred, and to the best of FAST's knowledge, there
exists no condition or set of circumstances in connection with which FAST could
be subject to any material liability.
4.14.4 With respect to the FAST Employee Plans, individually and in
the aggregate, there are no funded benefit obligations for which contributions
have not been made
[*]= Text deleted pursuant to a Confidential Treatment Request.
11
<PAGE>
or properly accrued and there are no unfunded benefit obligations which have not
been accounted for by reserves on the financial statements or books of FAST.
4.14.5 FAST is not a party to (i) any oral or written agreement with
any officer or other key employee of FAST, the benefits of which are contingent,
or the terms of which are materially altered, upon the occurrence of a
transaction involving FAST of the nature contemplated by this Agreement, (ii)
any oral or written agreement with any officer of FAST providing any term of
employment or compensation guarantee extending from the date hereof or for the
payment of compensation in excess of one hundred thousand dollars (US $100,000)
per annum, or (iii) any oral or written agreement or plan, including any stock
option plan, stock appreciation right plan, restricted stock plan or stock
purchase plan, any of the benefits of which will be increased, or the vesting of
the benefits of which will be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any of the benefits
of which will be calculated on the basis of any of the transactions contemplated
by this Agreement.
4.15 Compliance with Laws. FAST has complied in all material respects
--------------------
with, is not in material violation of, and has not received any notices of
violation with respect to, any statute, law or regulation applicable to the
ownership or operation of its business.
4.16 Employee Matters.
----------------
4.16.1 Schedule 4.16 lists the names and titles of all Employees,
-------------
Contract Employees and Consultants of FAST (collectively the "Employees" and
each an "Employee"), together with the amount of their current compensation,
their service date, the number of years each has been employed by FAST, all sick
or vacation benefits accrued or payable, all bonuses, profit sharing, or
commissions accrued or payable, any special compensatory or reimbursement
arrangements, comp time or other arrangements with such Employees and any
agreements between such Employee and FAST ("FAST Employment Agreements").
4.16.2 With respect to the Employees, FAST (i) is and has been in
compliance in all material respects with all applicable laws respecting
employment and employment practices, consulting practices, terms and conditions
of employment and consulting, and wages and hours, (ii) has made all
contributions required to be made under any unemployment or disability laws or
regulations and has accrued the amount of any such contribution required for any
period prior to the Closing Date which is not yet due and payable, and (iii) is
not engaged in any unfair labor practice and is not in arrears in the payment of
wages or taxes with respect to the Employees. No Employee has any claims against
FAST (whether under any law, any FAST Employment Agreement or otherwise) on
account of or for (i) overtime pay, other than overtime pay for the current
payroll period, (ii) wages or salary for any period other than the current
payroll, including any bonuses, profit sharing, commissions, benefits or other
compensation payable or accrued with respect to the period prior to the Closing
Date, (iii) vacation, time off or pay in lieu of vacation or time off, other
than that earned in respect of the current fiscal year, or (iv) any violation of
any Law or Decree relating to minimum wages or
[*]= Text deleted pursuant to a Confidential Treatment Request.
12
<PAGE>
maximum hours of work. FAST has not received notice from any Employee to the
effect that such Employee presently plans to terminate his or her relationship
with FAST. Adequate reserves reflecting all accrued compensations (including
accrued vacation, sick pay, bonuses, profit sharing commissions or other
compensation), severance pay or other benefits payable to any Employee by reason
of any voluntary or involuntary termination of such Employee prior to or on the
Closing Date are set forth in the Disclosure Schedule.
4.16.3 FAST is not bound by or subject to (and none of the assets or
properties of Seller are bound by or subject to) any Contract with any labor
union or similar organization, and no labor union or similar organization has
requested or, to the best of FAST's knowledge, has made a formal attempt to
represent any of the employees, representatives or agents employed in connection
with the business of FAST. There is no strike or other labor dispute involving
FAST pending, or to the best of FAST's knowledge, threatened, nor is FAST aware
of any labor organization activity involving the Employees.
4.17 Securities Act. FAST acknowledges that any shares of Consilium common
--------------
stock to be issued pursuant to this Agreement will not be registered under the
Securities Act of 1933 (the "Securities Act") and are being acquired by it in a
transaction exempt from the registration requirements thereof. FAST further
acknowledges that it has received all information it desires concerning
Consilium, its common stock and any other matter it deems relevant or material
to an investment in Consilium. FAST has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in Consilium and is able to bear the economic risk of
investment. FAST is acquiring any common stock for its own account for the
purposes of investment. FAST will not offer, sell, transfer or otherwise
dispose of any common stock of Consilium or any interest therein except in
accordance with the Securities Act and any applicable state securities or "blue
sky" laws, or any other applicable securities laws of any country or any
political subdivision thereof. FAST agrees that the certificates representing
any Consilium common stock may bear legends to the effect that the common stock
has not been registered under the Securities Act and that neither the common
stock nor any interest therein may be offered, sold, transferred or otherwise
disposed of except in accordance with the Securities Act and any applicable
state securities or "blue sky" laws, and any applicable securities laws of any
country or political subdivision thereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF CONSILIUM
-------------------------------------------
Consilium hereby represents and warrants to FAST as follows:
5.1 Organization. Consilium is a corporation duly organized, validly
------------
existing and in good standing under the laws of the State of Delaware.
[*]= Text deleted pursuant to a Confidential Treatment Request.
13
<PAGE>
5.2 Authorization. This Agreement and the Ancillary Documents have been
-------------
duly and validly executed and delivered by Consilium and constitute valid and
binding agreements of Consilium, enforceable against Consilium in accordance
with their terms. Consilium has all requisite power and authority to execute
and deliver this Agreement and the Ancillary Documents and to enable it to carry
out the transactions contemplated by this Agreement and the Ancillary Documents.
All necessary corporate action on the part of Consilium has been taken to
authorize the execution and delivery of the Agreement and the Ancillary
Documents.
5.3 Financial Information. Consilium has furnished or made available to
---------------------
FAST and the Shareholder a true and complete copy of Consilium's Annual Report
on Form 10-K for the year ended October 31, 1996, and all quarterly reports on
Form 10-Q filed since October 31, 1996. The financial statements contained in
the Form 10-K and any Form 10-Q were prepared in accordance with generally
accepted accounting principles, consistently applied throughout the periods
covered thereby.
5.4 Effect of Agreement; Consents. The execution and delivery of this
-----------------------------
Agreement and the Ancillary Documents by Consilium do not, and the consummation
of the transactions contemplated hereby and compliance with the provisions
hereof will not, conflict with, result in a breach of, constitute a default
(with or without notice or lapse of time, or both) under or violation of, or
result in the creation of any lien, charge or encumbrance pursuant to any
provision of the Certificate of Incorporation or Bylaws of Consilium, any order,
rule, law or regulation of any court or governmental authority, foreign or
domestic, or any provision of any material agreement, instrument, understanding,
order, judgment or decree to which Consilium is a party or by which Consilium is
bound. No consent of any third party or any governmental authority is required
to be obtained on the part of Consilium to permit the consummation of the
transactions contemplated by this Agreement or the Ancillary Documents.
5.5 Issuance of Stock. Any shares of Consilium common stock to be issued
-----------------
pursuant to this Agreement will, upon issuance, be duly authorized, validly
issued, fully paid and nonassessable shares of Consilium common stock, and shall
be free of any preemptive rights.
ARTICLE VI
COVENANTS
---------
6.1 Covenants of FAST.
-----------------
6.1.1 Access to Documents. If, after the Closing Date, (i) in order
-------------------
to properly prepare its tax returns or other documents or reports required to be
filed with governmental authorities or its financial statements; (ii) in
connection with any threatened or pending litigation or claim which involves or
may involve Consilium; or (iii) for any other reasonable purpose, it is
necessary that Consilium be furnished with additional information or documents
relating to the Assets and such information or documents are in the possession
of
[*]= Text deleted pursuant to a Confidential Treatment Request.
14
<PAGE>
FAST, and can reasonably be furnished to Consilium, FAST shall, upon written
request therefor, promptly furnish such information or documents to Consilium.
Consilium shall reimburse FAST providing such information or documents for the
cost of copying or shipping any requested documents.
6.1.2 Exclusive Dealing. From the date hereof until the earlier of (i)
-----------------
the Closing or (ii) termination of this Agreement, neither FAST nor any of its
directors, officers, or agents, will directly or indirectly (a) solicit,
initiate or encourage submission or proposals or offers from any person or
entity relating to any acquisition or purchase of all or a material portion of
the Assets, or any equity interest in, FAST or any equity investment, merger,
consolidation or business combination with FAST, or (b) participate in any
discussions or negotiations regarding, or furnish to any other person, any non-
public information with respect to, or otherwise cooperate in any way with, or
assist or participate in, facilitate or encourage, any effort by any other
person to do or seek any of the foregoing. FAST shall promptly notify Consilium
if any such proposal or offer, or any inquiry or contact with any person with
respect thereto, is made.
6.1.3 Covenant Not to Compete. FAST and the Shareholder each agree
-----------------------
that for a period of [*] from the Closing Date neither FAST nor the Shareholder
will, directly or indirectly, in any capacity whatsoever of or for any
individual or entity of any kind (other than Consilium), (a) own, manage,
consult with, operate, sell, control or participate in any business that
competes with the business of Consilium in [*] (the "Territory") (b) provide
consulting services on behalf of a customer of Consilium with the intent or
purpose of depriving Consilium of business performed by Consilium; (c) request
or advise any of the customers, suppliers or other business contacts of
Consilium to withdraw, curtail, cancel or not increase their business with
Consilium; (d) directly or indirectly solicit the services of or cause the
solicitation of the services of any of the officers, employees, consultants,
agents and/or independent contractors of Consilium or in any manner attempt to
persuade any such person to discontinue any relationship with Consilium.
6.1.4 Future Activities and Name of FAST. FAST agrees that, from and
----------------------------------
after the Closing Date, FAST will not conduct any active business operations of
any type or nature, unless it first obtains the prior written consent of
Consilium, which consent may be granted or denied by Consilium in its sole
discretion. FAST further agrees that, as soon as practicable after the Closing
Date, it shall take all necessary action to effect a change in the name of FAST;
provided, however, that if, by changing its name, FAST would lose the benefit of
- -------- -------
its "pioneer status" under the [Singapore statute], or incur any other legal
detriment under the laws of Singapore, it may retain the FAST name.
6.1.5 Termination of Certain Agreements. Prior to the Closing Date,
---------------------------------
FAST will terminate any and all agreements, contracts or purchase orders
currently in existence between it and Fastech Integration [name other contracts
to be terminated], in accordance with the terms thereof regarding termination.
[*]= Text deleted pursuant to a Confidential Treatment Request.
15
<PAGE>
6.2 Confidentiality. Each party acknowledges that in the course of the
---------------
performance of this Agreement, it may obtain the Confidential Information of the
other party. The Receiving Party (as defined below) shall, at all times, both
during the term of this Agreement and thereafter, keep in confidence and trust
all of the Disclosing Party's (as defined below) Confidential Information
received by it. The Receiving Party shall not use the Confidential Information
of the Disclosing Party other than as expressly permitted under the terms of
this Agreement or by a separate written agreement. The Receiving Party shall
take all reasonable steps to prevent unauthorized disclosure or use of the
Disclosing Party's Confidential Information and to prevent it from falling into
the public domain or into the possession of unauthorized persons. The Receiving
Party shall not disclose Confidential Information of the Disclosing Party to any
person or entity other than its officers, employees, consultants and permitted
sublicensees who need access to such Confidential Information in order to effect
the intent of this Agreement and who have entered into confidentiality
agreements with such person's employer which protects the Confidential
Information of the Disclosing Party. The Receiving Party shall promptly give
notice to the Disclosing Party of any unauthorized use or disclosure of
Disclosing Party's Confidential Information. The Receiving Party agrees to
assist the Disclosing Party to remedy such unauthorized use or disclosure of its
Confidential Information, which remedies shall include injunctive relief without
the necessity of posting a bond or proving damages. These obligations shall not
apply to the extent that Confidential Information includes information which:
6.2.1 is already known to the Receiving Party at the time of
disclosure, which knowledge the Receiving Party shall have the burden of
proving;
6.2.2 is, or, through no act or failure to act of the Receiving
Party, becomes publicly known;
6.2.3 is received by the Receiving Party from a third party without
restriction on disclosure;
6.2.4 is independently developed by the Receiving Party without
reference to the Confidential Information of the Disclosing Party, which
independent development the Receiving Party will have the burden of proving;
6.2.5 is approved for release by written authorization of the
Disclosing Party; or
6.2.6 is required to be disclosed by a government agency to further
the objectives of this Agreement or by a proper order of a court of competent
jurisdiction; provided, however that the Receiving Party will use its best
efforts to minimize such disclosure and will consult with and assist the
Disclosing Party in obtaining a protective order prior to such disclosure.
[*]= Text deleted pursuant to a Confidential Treatment Request.
16
<PAGE>
For purposes of this Section 6.2, "Confidential Information" shall mean
that information of a party ("Disclosing Party") which is disclosed to another
party ("Receiving Party") pursuant to this Agreement, in written form and marked
"Confidential." If Confidential Information is initially disclosed orally, the
Disclosing Party shall send a written summary of such information to the
Receiving Party within forty (40) days of disclosure and mark such summary
"Confidential." Confidential Information shall include, but not be limited to,
trade secrets, know-how, inventions, techniques, processes, algorithms, software
programs, schematics, designs, contracts, customer lists, financial information,
sales and marketing plans and business information.
6.3 Covenants of Consilium.
----------------------
6.3.1 Consilium Singapore Office. As soon as practicable after the
--------------------------
Closing Date, but in any event no later than six months after the Closing Date,
Consilium will close its currently existing office in Singapore, and transferred
all of its existing business activities and employees in the Singapore office to
the control and supervision of the Shareholder in the existing FAST offices.
This covenant shall survive the Closing and remain in full force and effect
until such time as Consilium has fully complied with its obligations under this
Section 6.3.1.
6.3.2 Employment of FAST Employees. Conditional upon the termination
----------------------------
of all existing contracts between FAST and any of its current employees or
contract employees, and the performance by FAST of all of its obligations
thereunder, Consilium agrees that it shall offer at-will employment to all of
the current full-time employees of FAST listed on Schedule 4.16 and to certain
contract employees of FAST listed on Schedule 6.3.2 hereof, under Consilium's
standard terms and conditions of employment.
6.3.3 Registration Rights. Consilium will use reasonable commercial
-------------------
efforts to, within six months of the issuance of the Consilium Stock and within
six months of the issuance of additional Common Stock of Consilium as all or
part of a Performance Payment ("Additional Stock"), file a registration
statement for a public offering of the Consilium Stock or the Additional Stock,
as applicable, subject to the terms and conditions of the Declaration of
Registration Rights attached hereto as Exhibit A.
---------
6.3.4 Options. Consilium will grant to the Shareholder an option to
-------
purchase 30,000 shares of the Common Stock of Consilium pursuant to the terms
and conditions of the 1996 Consilium Stock Option Plan (the "Plan"), and, upon
mutual agreement with FAST, may grant to certain FAST employees options to
purchase up to an aggregate of 30,000 shares of the Common Stock of Consilium
pursuant to the terms and conditions of the Plan. The exercise price for any
options granted pursuant to this section shall be equal to the closing price of
Consilium Common Stock as quoted on the Nasdaq National Market on the date of
the grant of the option.
[*]= Text deleted pursuant to a Confidential Treatment Request.
17
<PAGE>
ARTICLE VII
CONSILIUM'S CONDITIONS PRECEDENT TO CLOSING
-------------------------------------------
The obligations of Consilium at the Closing are subject to satisfaction of
the following conditions (any or all of which may be waived by Consilium in its
sole discretion):
7.1 Representations and Warranties. The representations and warranties of
------------------------------
FAST contained in this Agreement shall be true and correct in all material
respects on the Closing Date with respect to the Agreement and the Ancillary
Documents with the same effect as though made on that date.
7.2 Board and Shareholder Approval. This Agreement and the transactions
------------------------------
contemplated by it shall have been approved by FAST's Board of Directors and
shareholders and FAST shall have delivered to Consilium copies, certified by the
Secretary of FAST, of the resolutions of the Board of Directors and shareholders
of FAST regarding such approval.
7.3 Consents. On or prior to the Closing Date, FAST shall have obtained
--------
all necessary consents to the assignment to Consilium of the contracts listed on
Schedule 1.1 hereto, and all other consents, approvals, permits and necessary
- ------------
authorizations to complete the transfer of the Assets.
7.4 No Material Adverse Change. No material adverse change shall have
--------------------------
occurred in the business of FAST or the value of the Assets since the execution
of this Agreement which, in the reasonable judgment of Consilium, may have a
material adverse effect on the Assets.
7.5 Closing Certificate. FAST shall deliver to Consilium a certificate
-------------------
dated the Closing Date and signed by the Managing Director of FAST confirming
that the conditions set forth in subsections 7.1, 7.2, 7.3 and 7.4 have been
satisfied.
7.6 Employment Agreements. The Shareholder of FAST shall have delivered
---------------------
to Consilium a signed employment agreement in the form attached hereto as
Exhibit B, the employees of FAST listed on Schedule 4.16 shall have delivered to
- --------- -------------
Consilium signed Employment Agreements in the form attached hereto as Exhibit C
---------
hereto, and the contract employees of FAST listed on Schedule 6.3.2 shall have
--------------
delivered to Consilium signed Independent Contractor Services Agreements in the
form attached hereto as Exhibit D.
---------
7.7 Proprietary Rights and Information Agreements. Consilium shall have
---------------------------------------------
received signed Proprietary Rights and Information Agreements from the
Shareholder, the full-time employees of FAST listed on Schedule 4.16 and the
-------------
contract employees of FAST listed on Schedule 6.3.2 in the form attached hereto
--------------
as Exhibit E.
---------
7.8 Legal Opinion. Consilium shall have received an opinion from
-------------
________________________, counsel to FAST, in substantially the form attached
hereto as Exhibit F.
---------
[*]= Text deleted pursuant to a Confidential Treatment Request.
18
<PAGE>
7.9 Closing Deliveries. Consilium shall have received at or prior to the
------------------
Closing each of the following documents:
7.9.1 a bill of sale substantially in the form attached hereto as
Schedule 7.9;
- ------------
7.9.2 such instruments of conveyance, assignment and transfer, in
form and substance satisfactory to Consilium, as shall be appropriate to convey,
transfer and assign to, and to vest in, Consilium, good, clear and marketable
title to the Assets, including assignments of any pending or issued federal
registrations for trademarks or copyrights; and
7.9.3 evidence of termination of all liens filed against the Assets
reasonably satisfactory to Consilium.
7.10 FAST's Covenants. FAST shall have performed and complied with all of
----------------
the terms, covenants and conditions set forth herein which are to be performed
or complied with by FAST before or as of the Closing Date.
7.11 Closing Date. The Closing shall have occurred on or before May 1,
------------
1997.
7.12 Tax and Accounting Review. Consilium shall have completed to its
-------------------------
satisfaction a review of the tax and accounting consequences of the transfer of
the Assets hereunder.
7.13 Agreement with SDI. Consilium, the Shareholder and Systematic Designs
------------------
International, Inc. ("SDI") [*].
ARTICLE VIII
FAST'S CONDITIONS PRECEDENT TO CLOSING
--------------------------------------
The obligations of FAST at the Closing are subject to satisfaction of the
following conditions (any or all of which may be waived by FAST):
8.1 Representations and Warranties. The representations and warranties of
------------------------------
Consilium contained in this Agreement will be true and correct in all material
respects at the date of the Closing with the same effect as though made at that
date.
8.2 Consilium's Covenants. Consilium shall have performed and complied
---------------------
with all of the terms, covenants and conditions set forth herein which are to be
performed or complied with by Consilium before or as of the Closing Date.
[*]= Text deleted pursuant to a Confidential Treatment Request.
19
<PAGE>
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES:
-------------------------------------------
INDEMNIFICATION
---------------
9.1 Survival of Representations, Warranties and Covenants. The
-----------------------------------------------------
representations, warranties, agreements and covenants of FAST and Shareholder
contained in this Agreement shall survive the Closing for a period ending at
midnight, PST, on the second anniversary of the Closing Date and shall in no
manner be limited by any investigation of the subject matter thereof made by or
on behalf of either party or by the satisfaction of any condition to the
Closing. At the end of such period, all such agreements, covenants,
representations or warranties by FAST shall expire and be of no further force
and effect, provided, however, that FAST will remain liable thereafter to the
extent one or more Claims (as defined in Section 9.1) shall have been asserted
in writing by Consilium on or before the expiration of such period. Consilium's
and Buyer's representations, warranties and covenants contained in this
Agreement shall terminate as of the earlier of the termination of this Agreement
in accordance with its terms or the Closing, unless otherwise specified herein.
9.2 Indemnification by FAST and the Shareholder.
-------------------------------------------
9.2.1 FAST and the Shareholder will jointly and severally defend,
indemnify and hold harmless Consilium from and against any and all demands,
claims, debts, damages, losses and liabilities (individually a "Claim" or
collectively "Claims") which are asserted against, incurred by or imposed upon
Buyer and which constitute, directly result from, or relate to (i) the
inaccuracy of any representation or the breach of any warranty made in this
Agreement or otherwise made in writing and delivered by FAST or Shareholder to
Consilium in connection with the transactions contemplated hereby; (ii) any
failure of FAST or the Shareholder to perform or comply with any of their
respective covenants and agreements set forth herein or in any other document
executed in connection with the transactions contemplated hereby; (iii) any
liabilities, obligations or commitments of, and all claims against FAST, its
shareholders, directors, officers, employees or agents involving any of the
Purchased Assets, arising from or based upon (A) any condition, event or action
existing on or occurring before the Closing Date, (B) FAST's use and operation
of any retained assets after the Closing Date, or (C) noncompliance with the
bulk sales or similar laws of Singapore, except to the extent that such
liabilities, obligations, commitments or claims are Assumed Liabilities and (iv)
any Excluded Liabilities.
9.2.2 Consilium shall indemnify and save harmless FAST and the
Shareholder from and against any and all Claims which are asserted against,
incurred by, or imposed upon FAST or the Shareholder and which constitute,
directly result from, or relate to the inaccuracy of any representation or the
breach of any warranty made in this Agreement or otherwise made in writing and
delivered by Consilium to FAST or the Shareholder in connection with the
transactions contemplated hereby.
[*]= Text deleted pursuant to a Confidential Treatment Request.
20
<PAGE>
9.2.3 The indemnification obligations set forth herein shall
terminate as to any Claim (or any potential Claim by an appropriate party) not
asserted by Consilium in writing prior to midnight, PST, on the second
anniversary of the Closing Date. The term "Claim" shall include, but not be
limited to, any claim or action by any claimant, creditor, interest holder or
other party in interest. As used in this Section 9, the term "Indemnitor" means
the party against whom indemnification hereunder is sought, and the term
"Indemnitee" means the party seeking indemnification hereunder. The following
are conditions precedent to any liability of an Indemnitor under Section 9.2.1
or Section 9.2.2:
9.2.3.1 Indemnitee shall give Indemnitor prompt written notice
of any event or assertion of which it has knowledge concerning any Claims and as
to which it may request indemnification.
9.2.3.2 Indemnitee shall cooperate with and assist Indemnitor
in defending or settling the Claims.
9.2.3.3 Indemnitee shall permit Indemnitor to control the
defense or settlement of the Claims, including selection of counsel to represent
Indemnitor and Indemnitee, provided that such counsel shall be reasonably
satisfactory to Indemnitee. Indemnitee may maintain separate counsel at its own
cost and expense in connection with any Claim.
9.2.3.4 In no event shall Indemnitee compromise or settle a
Claim without the prior written approval of Indemnitor, which approval shall not
be unreasonably withheld.
9.2.3.5 The assumption of the defense of any Claim by
Indemnitor shall be an acknowledgment by Indemnitor that such Claim is subject
to indemnification under the provisions of this Section 9.2 and that such
provisions are binding on Indemnitor. If, however, Indemnitor fails or refuses
to undertake the defense of such Claim within ten (10) days after written notice
of such Claim has been delivered to Indemnitor by Indemnitee, Indemnitee shall
have the right to undertake the defense, and, subject to Section 9.2.3.4 above,
compromise and settlement of such Claim with counsel of its own choosing.
Failure of Indemnitee to furnish written notice to Indemnitor of a Claim shall
not release Indemnitor from Indemnitor's obligations hereunder, except to the
extent Indemnitor is prejudiced by such failure.
9.2.4 The amounts for which Indemnitee may seek indemnification under
this Section shall extend to, and as used herein the term "Claim" shall include,
reasonable attorneys' fees and costs, reasonable accountants' fees and costs,
costs of litigation and other expenses reasonably incurred by Indemnitee in the
investigation or defense of any claim asserted against Indemnitee and any
amounts paid in settlement or compromise of any claim asserted against it, but
only to the extent that the claim asserted is or would have been subject to the
provisions of this Section 9.
[*]= Text deleted pursuant to a Confidential Treatment Request.
21
<PAGE>
9.2.5 Subject to the next sentence, any payment due to Indemnitee (or
payable to Indemnitee) pursuant to a Claim shall be paid by bank cashier's check
or wire transfer. Without limiting any other rights it may have, Consilium may,
at its sole option by notice to FAST, satisfy an amount due to Consilium
pursuant to any Claim by withholding such amount from any amounts due to or to
become due to FAST pursuant to Section 2.4 hereof.
9.2.6 The indemnification obligations of an Indemnitor under this
Section 9.2 shall continue in full force and effect as to any Claim as to which
notice has been given pursuant to Section 9.2.3 until such Claim has been
settled either by mutual agreement of the parties concerned, by mediation or
arbitration in accordance with the provisions of this Agreement or in the event
of a Claim resulting from legal action by a third party, by the final
arbitration award or final order, decree or judgment of a court of competent
jurisdiction in the United States of America (the time for appeal having expired
with no appeal having been taken). Any dispute over a claim under Section 9.2 (a
"Contested Claim") shall be settled by mediation or arbitration in accordance
with Section 11.10 hereof. The right of Indemnitee to be indemnified under this
Section 9.2.6 shall not limit, reduce or otherwise affect any other rights and
remedies it may have with respect to the matters indemnified under this
Agreement.
ARTICLE X
TERMINATION OF AGREEMENT
------------------------
10.1 Termination by Lapse of Time. This Agreement shall terminate at 5:00
----------------------------
p.m., California time, on August 1, 1997], if the transactions contemplated
hereby have not been consummated, unless such date is extended by the written
consent of all of the parties hereto.
10.2 Termination by Agreement of the Parties. This Agreement may be
---------------------------------------
terminated by the mutual written agreement of the parties hereto. In the event
of such termination by agreement or by lapse of time under Section 10.1,
Consilium shall have no further obligation or liability to FAST under this
Agreement, and FAST shall have no further obligation or liability to Consilium
under this Agreement. Notwithstanding the foregoing, the mutual obligations of
confidentiality set forth in Section 6.2.1 herein shall survive the termination
of the Agreement.
ARTICLE XI
GENERAL
-------
11.1 Expenses. Except as otherwise provided below in this Agreement, the
--------
parties will each pay their own legal, accounting and other professional
expenses in connection with the transactions contemplated hereby.
11.2 Brokers. Each party represents and warrants to the other that no
-------
person has acted as a broker, a finder or in any similar capacity in connection
with the transactions
[*]= Text deleted pursuant to a Confidential Treatment Request.
22
<PAGE>
contemplated hereby. Each party shall indemnify the other against, and agrees to
hold the other harmless from, all liabilities and expenses (including reasonable
attorneys' fees and expenses) in connection with any claim by anyone for
compensation as a broker, a finder or in any similar capacity following the
Closing, by reason of services allegedly rendered to the indemnifying party in
connection with the transactions contemplated hereby.
11.3 Entire Agreement. This document contains the entire agreement among
----------------
the parties with respect to the matters contemplated hereby and all prior
negotiations, understandings and agreements among them.
11.4 Assignment. Neither this Agreement nor any right of any party under
----------
it may be assigned without the prior written consent of the other party, which
consent shall not be unreasonably withheld; provided, however, that Consilium
may assign its rights under this Agreement following the Closing to any party
that acquires Consilium through a merger or consolidation, purchase of
substantially all of Consilium's stock or a purchase of substantially all of
Consilium's assets.
11.5 Notices. Any notice or other communication required or permitted to
-------
be given under this Agreement shall be in writing and will be deemed effective
when delivered in person, when sent by confirmed facsimile, if promptly
confirmed in writing, on the third day after the day on which mailed by first
class mail from within the United States of America, or the day following
delivery to a national overnight courier service to the following addresses or
to such other address as either party may specify in writing to the other party
in accordance with the provisions of this subsection 11.5:
If to Consilium: Consilium, Inc.
485 Clyde Avenue
Mountain View, CA 94043
Attn: Ed Norton
With a copy to: Gray Cary Ware & Freidenrich
400 Hamilton Avenue
Palo Alto, CA 94301
Attn: Diane Holt Frankle
If to FAST: FAST Associates Pte, Ltd.
_______________________________
_______________________________
Attn: Ng Boon Thiong
[*]= Text deleted pursuant to a Confidential Treatment Request.
23
<PAGE>
With a copy to: ________________________________
________________________________
________________________________
Attn: _________________________
11.6 Governing Law. This Agreement will be governed by, and construed
-------------
under, the laws of the State of California without regard to conflict of laws
principles. The parties hereto agree to submit to the personal, but not
exclusive, jurisdiction of the state and federal courts in California with
respect to the enforcement or interpretation of this Agreement or the parties'
obligations hereunder.
11.7 Amendment. This Agreement may be amended only by a document in
---------
writing signed by the parties.
11.8 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same agreement.
11.9 Public Disclosure. No party shall disclose the terms of this
-----------------
Agreement without the written consent of Consilium and FAST, except as required
by law, pursuant to the disclosure obligations of Consilium under the rules and
regulations of the Securities and Exchange Commission or as set forth in Section
6.2 herein.
11.10 Arbitration. Any disputes between Consilium and FAST with respect to
-----------
this Agreement shall be settled by binding, final arbitration in Mountain View,
California and in accordance with the commercial arbitration rules of the
American Arbitration Association then in effect ("AAA Rules"). However, in all
events, the following arbitration provisions shall govern over any conflicting
rules which may now or hereafter be contained in the AAA Rules. Any judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction over the subject matter thereof. The arbitrator shall have the
authority to grant any equitable and legal remedies that would be available,
except the arbitrator shall not have the authority to grant punitive damages to
either party to this Agreement.
11.10.1 Any such arbitration shall be conducted before a single
arbitrator who shall be compensated for his or her services at a rate to be
determined by the parties or by the American Arbitration Association, but based
upon reasonable hourly or daily consulting rates for the arbitrator in the event
the parties are not able to agree upon his or her rate of compensation.
11.10.2 The AAA Rules for the selection of the arbitrator shall be
followed.
11.10.3 Consilium and FAST shall each advance fifty percent (50%) of
the initial compensation to be paid to the arbitrator in any such arbitration
and fifty percent (50%)
[*]= Text deleted pursuant to a Confidential Treatment Request.
24
<PAGE>
of the costs of transcripts and other normal and regular expenses of the
arbitration proceedings; provided, however, that the arbitrator shall have the
discretion to grant to the prevailing party in any arbitration an award of
attorneys' fees and costs, and all costs of arbitration.
11.10.4 The parties shall be entitled to conduct discovery
proceedings in accordance with the provisions of the Federal Rules of Civil
Procedure, subject to any limitation imposed by the arbitrator.
11.10.5 For any claim submitted to arbitration, the burden of proof
shall be as it would be if the claim were litigated in a judicial proceedings.
11.10.6 Upon the conclusion of any arbitration proceedings hereunder,
the arbitrator shall render findings of fact and conclusions of law and a
written opinion setting forth the basis and reasons for any decision reached by
him or her and shall deliver such documents to each party to this Agreement and
to the Escrow Agent along with a signed copy of the award.
11.10.7 The arbitrator chosen in accordance with these provisions
shall not have the power to alter, amend or otherwise affect the terms of these
arbitration provisions or the provisions of this Agreement or the Escrow
Agreement.
11.10.8 Arbitration shall be the sole and exclusive remedy of the
parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date shown on the first page.
FAST ASSOCIATES, PTE, LTC. CONSILIUM, INC.
By: By:
-------------------------- --------------------------
Name: Name:
------------------------ ------------------------
Title: Title:
----------------------- -----------------------
SHAREHOLDER
By:
--------------------------
Name: Ng Boon Thiong
[*]= Text deleted pursuant to a Confidential Treatment Request.
25
<PAGE>
LIST OF SCHEDULES
-----------------
SCHEDULE 1.1 FIXED ASSETS
SCHEDULE 1.2 WARRANTS TO BE ASSIGNED
SCHEDULE 1.6 LEASES TO BE ASSIGNED
SCHEDULE 1.9 EXISTING FAST CUSTOMERS IN TAIWAN
SCHEDULE 1.10 EXISTING FAST CONTRACTS WITH CONSILIUM
SCHEDULE 2.6 ALLOCATION OF AGGREGATE CONSIDERATION
SCHEDULE 2.7 ASSUMED LIABILITIES
SCHEDULE 4.0 SCHEDULE OF EXCEPTIONS
SCHEDULE 6.3.2 CONTRACT EMPLOYEES OF PAST
SCHEDULE 7.9 BILL OF SALE
<PAGE>
EXHIBIT A
---------
CONSILIUM, INC.
---------------
DECLARATION OF REGISTRATION RIGHTS
----------------------------------
This Declaration of Registration Rights ("Declaration") is made as of July
___, 1997 by Consilium, Inc., a Delaware corporation ("Consilium") for the
benefit of Fast Associates PTE, Ltd., a Singapore corporation ("FAST"), which is
acquiring shares of Common Stock of Consilium pursuant to that certain Asset
Purchase Agreement dated as of July ___, 1997, among Consilium, FAST, and Ng
Boon Thiong (the "Purchase Agreement"). Capitalized terms used herein and not
defined shall have the meaning given to them in the Purchase Agreement.
1. DEFINITIONS. AS USED IN THIS DECLARATION:
(a) "Affiliate" means those persons or parties deemed an "affiliate"
for purposes of paragraphs (c) and (d) of Rule 145 of the SEC.
(b) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Form S-3" means such form under the Securities Act as in effect
on the date hereof or any registration form under the Securities Act
subsequently adopted by the Commission which similarly permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the Commission.
(d) "Holder" means (i) FAST (ii) Ng Boon Thiong (should Consilium
issue any stock to him as a Performance Payment under the Purchase Agreement),
or (iii) a transferee of Registrable Securities by FAST, to whom registration
rights under this Declaration are assigned pursuant to Section 8 of this
Declaration and who becomes a Holder (within the meaning of this Agreement) of
Registrable Securities.
(e) "Registrable Securities" means the shares of Consilium Common
Stock issued to FAST pursuant to the Purchase Agreement, together with all other
shares of Consilium Common Stock issued in respect thereof (by way of stock
split, dividend or otherwise). Registrable Securities shall not include any
shares of Consilium Common Stock transferred by a Holder pursuant to Section 6
hereof to any person who does not agree to be bound by the terms of this
Declaration.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Act" means the Securities Act of 1933, as amended.
(h) "NASD" means the National Associations of Securities Dealers.
Capitalized terms not otherwise defined herein have the meanings given to them
in the Purchase Agreement.
<PAGE>
2. REGISTRATION.
(a) Applicable Form of Registration Statement. Consilium shall use
reasonable commercial efforts to cause the applicable Registrable Securities to
be registered under the Securities Act so as to permit the resale thereof,
within six months of the time they are issued to a Holder pursuant to the
Purchase Agreement. In connection therewith Consilium shall use reasonable
commercial efforts to prepare and file with the SEC and shall use reasonable
commercial efforts to cause to become effective as soon as practicable
thereafter a registration statement on Form S-3 (in the case of the Registrable
Securities).
(b) Information. Each Holder shall provide all information and
materials to Consilium, and take all action, as may be required in order to
permit Consilium to comply with all applicable requirements of the SEC and to
obtain any desired acceleration of the effective date of such registration
statement. The provisions of such information and materials by Holder is a
condition precedent to the obligations of Consilium pursuant to this
Declaration.
(c) Certain Limitations. (i) Except as expressly provided in Section
3, Consilium shall not be required to effect a total of more than four (4)
registrations of Registrable Securities hereunder; and (ii) Consilium shall keep
effective the registration statement(s) for Registrable Securities during such
periods as directors, officers and Affiliates of Consilium are permitted to
purchase and sell Consilium Common Stock pursuant to the insider trading
policies of Consilium (subject to the right of Consilium to suspend the use of a
prospectus pursuant to Section 3(b)) and, notwithstanding the provisions of
Section 3(a)(i) and any other provision of this Agreement to the contrary, shall
not be required to keep such to the contrary, shall not be required to keep such
registration statement effective at any other time. By making a registration
request or selling any Registrable Securities pursuant to a registration
statement filed pursuant to this Agreement, each Holder agrees that the right of
such Holder to resell Registrable Securities, pursuant to a registration
statement hereunder shall be suspended, unless otherwise agreed by Consilium,
whenever Consilium "insiders" (as defined in the Consilium Insider Trading
Policy furnished to Holders herewith and any amendments thereto hereafter
furnished to Holders) are restricted from trading capital stock of Consilium (a
"Restricted Period"). Unless otherwise specified by Consilium by written notice
to Holders, the term "Restricted Period" shall include the period commencing at
the opening of trading on the first day of the third month of each fiscal
quarter of Consilium and expiring at the close of trading on the second full
trading day following the release of Consilium financial results for such fiscal
quarter (or, in the case of the fourth quarter of each year, for the fiscal
year). If a Restricted Period shall commence or shall expire or terminate on any
other date, Consilium shall provide advance written notice of such commencement
and prompt written notice of such expiration or termination. Consilium shall
have the affirmative right to suspend the effectiveness of any registration
statement hereunder at any time and from time to time during a Restricted
Period, for the whole of such Restricted Period or any portion thereof.
3
<PAGE>
3. OBLIGATIONS OF CONSILIUM.
(a) Subject in each case to the limitations of Section 2, Consilium
shall (i) prepare and file with the SEC registration statements in accordance
with Section 2 hereof with respect to the Registrable Securities and shall use
all reasonable efforts to cause such registration statement to become effective
as promptly as practicable after filing and to keep each such registration
statement effective until the Termination Date (as hereinafter defined); (ii)
prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary, and to comply with the provisions of the Securities Act with respect
to the sale or other disposition of all securities proposed to be registered in
each such registration statement until the Termination Date (as hereinafter
defined) (iii) furnish to each Holder such number of copies of any prospectus
(including any preliminary prospectus and any amended or supplemented
prospectus) in conformity with the requirements of the Securities Act, and such
other documents, as each Holder may reasonably request in order to effect the
offering and sale of the shares of the Registrable Securities to be offered and
sold, but only while Consilium shall be required under the provisions hereof to
cause the registration statement to remain current and (iv) use reasonable
efforts to register or qualify the shares of the Registrable Securities covered
by such registration statement under the securities or blue sky laws of such
jurisdictions as each Holder shall reasonably request (provided that Consilium
shall not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process in any
such jurisdiction where it has not been qualified. For purposes of this Section
3(a), "Termination Date" means the earlier of (i) six months from the effective
date of the Registration Statement (ii) the date on which the Holder can sell
all of their Registrable Securities pursuant to Rule 144 of the SEC under the
Securities Act, and (iii) the date on which all of the Registrable Securities
have been resold pursuant to Rule 144 or an effective registration statement.
(b) Consilium shall notify each Holder, (i) when a 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; (ii) of any request by the SEC or any other federal
or state governmental authority during the period of effectiveness of the
registration statement for amendments or supplements to the registration
statement or related prospectus or for additional information relating to the
registration statement, (iii) of the issuance by the SEC or any other federal or
state governmental authority if any stop order suspending the effectiveness of
the registration statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by Consilium of any notification with respect to
the suspension of the qualification or exemption from qualification of any of
the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; or (v) of the happening of any
event which makes any statement made in the registration statement or related
prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or which requires the making of
4
<PAGE>
any changes in the registration statement or prospectus so that, in the case of
the registration statement, it 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 not misleading, and that in the case
of the prospectus, it 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 the light of the circumstances under which they
were made, not misleading. Consilium may, upon the happening of any event of the
kind described in clauses (iii), (iv) or (v) hereof, suspend use of the
prospectus on written notice to each Holder, in which case each Holder shall
discontinue disposition of Registrable Securities covered by the registration
statement or prospectus until copies of a supplemented or amended prospectus are
distributed to the Holders or until the Holder are advised in writing by the
Company that the use of the applicable prospectus may be resumed. Consilium
shall use its reasonable best efforts to ensure that the use of the prospectus
may be resumed as soon as practicable. Consilium shall use every reasonable
effort to obtain the withdrawal of any order suspending the effectiveness of the
registration statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of any of the securities for sale in any
jurisdiction, at the earliest practicable moment. Consilium shall, upon the
occurrence of any event contemplated by clause (iv) or (v) above, prepare a
supplement or post-effective amendment to the registration statement or a
supplement to the related prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities being sold thereunder, such
prospectus 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 the light of the circumstances under which they were
made, not misleading.
4. EXPENSES. Consilium shall pay all of the out-of-pocket expenses
incurred, other then underwriting discounts and commissions, in connection with
any registration of Registrable Securities pursuant to this Declaration,
including, without limitation, all SEC, NASD and blue sky registration and
filing fees, printing expenses, transfer agents' and registrars' fees, and the
reasonable fees and disbursements of Consilium's outside counsel and independent
accountants and a single counsel for all of the Holders.
5. INDEMNIFICATION. In the event of any offering registered pursuant to
this Declaration:
(a) Consilium will indemnify each Holder and each person controlling a
Holder, against all claims, losses, damages and liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, or any amendment or supplement thereto,
incident to any offering registered pursuant to this Declaration, or based on
any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statements
5
<PAGE>
therein, in the light of the circumstances under which they were made, not
misleading, or any violation by Consilium of any rule or regulation promulgated
under the Securities Act, or state securities laws applicable to Consilium in
connection with any such registration, and subject to Section 5(c), will
reimburse each such Holder, and each person controlling such Holder, for any
legal and other out-of-pocket expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that Consilium will not be liable in such case to the extent
that any such claim, loss, damage, or liability arises out of or is based in any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with written information furnished to Consilium
by such Holder or controlling person and stated to be specifically for use
therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration qualification or
compliance is being effected, indemnify Consilium, each of its directors and
officers and its legal counsel and independent accountants, each underwriter, if
any, of Consilium's securities covered by such a registration statement, each
person who controls Consilium or such underwriter within the meaning of Section
15 of the Securities Act, and each other such Holder, and such Holder's legal
counsel and independent accountants, against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse Consilium, such Holder, such directors, officers,
legal counsel, independent accountants, underwriters or control persons for any
legal or other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to Consilium by such Holder and
stated to be specifically for use therein; provided, however, that the
obligations of such Holder hereunder shall be several and not joint and shall be
limited to an amount equal to the respective net proceeds before expenses and
commissions to each such Holder of Registrable Securities sold as contemplated
herein.
(c) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
receives written notice of any claim as to which indemnity may be sought, and
shall permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further
6
<PAGE>
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Agreement, except to the extent, but only to the extent, that the Indemnifying
Party's ability to defend against such claim or litigation is impaired as a
result of such failure to give notice. Notwithstanding the foregoing sentence,
the Indemnified Party may retain its own counsel to conduct the defense of any
such claim or litigation, and shall be entitled to be reimbursed by the
Indemnifying Party for expenses incurred by the Indemnified Party in defense of
such claim or litigation, in the event that the Indemnifying Party does not
assume the defense of such claim or litigation within sixty days after the
Indemnifying Party receives notice thereof from the Indemnified Party. Further,
an Indemnifying Party shall be liable for amounts paid in settlement of any such
claim or litigation only if the Indemnifying Party consents in writing to such
settlement (which consent shall not be unreasonably withheld). No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party a release from all liability
in respect to such claim or litigation.
(d) The obligations or Consilium and each Holder under this Section 5
shall survive the completion of any offering of stock in a registration
statement under this Declaration and otherwise.
6. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause Consilium to
register Registrable Securities pursuant to this Declaration may be assigned by
a Holder to a transferee of Registrable Securities only if: (a) Consilium is,
within a reasonable time after such transfer, furnished with written notice of
the name and address of such transferee and the Registrable Securities with
respect to which such registration rights are being assigned and a copy of a
duly executed written instrument in form reasonably satisfactory to Consilium
pursuant to which such transferee assumes all of the obligations and liabilities
of its transferor hereunder and agrees itself to be bound hereby; and (b)
immediately following such transfer, the disposition of such Registrable
Securities by the transferee is restricted under the Securities Act.
7. AMENDMENT OF REGISTRATION RIGHTS. The Holder of a majority of the
Registrable Securities then outstanding may, with the consent of Consilium,
amend the registration rights granted hereunder.
8. TERMINATION. The registration rights set forth in this Declaration
shall terminate with respect to a Holder (and the shares held by such Holder
shall cease to constitute Registrable Securities) not later than two years
following the issuance of the Registrable Securities pursuant to the Purchase
Agreement.
9. OBLIGATIONS OF HOLDERS. By exercising any rights hereunder, each
Holder shall be deemed to assume all obligations of a Holder hereunder as though
such Holder were a signatory hereto. Consilium may require Holders to execute an
instrument whereby such Holders expressly assume all obligations of Holders
hereunder as a condition precedent to any obligations of Consilium hereunder.
8
<PAGE>
EXHIBIT B
---------
SHAREHOLDER OF FAST
FORM OF EMPLOYMENT AGREEMENT
----------------------------
Ng Boon Thiong
Dear Boon:
I am pleased to offer you a position with Consilium (the "Company") as its
Managing Director, Consilium South East Asia Region, commencing on
___________________, 1997. This letter sets forth the material terms of our
offer, so that you can make an informed decision whether to become part of our
team. All other terms of our offer are contained in our Company's handbook and
office notices past, present and amended or added from time to time in the
future as applicable to the Managing Director, Consilium South East Asia Region.
If you decide to join us, you will receive a monthly salary of $10,000, less
applicable withholding, which will be paid monthly in accordance with the
Company's normal payroll procedures. As a Company employee, you are also
eligible to receive certain employee benefits as contained in our Company's
handbook and office notices.
If you choose to accept this offer, your employment with the Company will
be voluntarily entered into and will be for no specified period. As a result,
you will be free to resign at any time, for any reason or for no reason, as you
deem appropriate; provided that prior to such resignation or termination, you
have given the Company two months written notice. The Company will have a
similar right and may concludes its employment relationship with you at any
time, with or without notice, subject to two months written notice as above. In
lieu of such written notice, payment of two months salary may be made.
In the event of any dispute or claim relating to or arising out of our
employment relationship, this agreement, or the termination of our employment
relationship (including, but not limited to, any claims of wrongful termination
or age, sex, disability, race or other discrimination), you and the Company
agree that all such disputes shall be fully, finally and exclusively resolved by
binding arbitration conducted by the American Arbitration Association in Santa
Clara County, California, and you and the Company waive all rights to have such
disputes or claims tried by a court or jury. However, you and the Company agree
that this arbitration provision shall not apply to any dispute or claim relating
to or arising out of the misuse or misappropriation of the Company's trade
secrets or proprietary information.
To indicate your acceptance of the Company's offer, please sign and date
this letter in the space provided below and return it to me as soon as possible.
I have enclosed a duplicate original for your records. You will be required to
sign an Employee Inventions and Proprietary Rights Assignment Agreement as a
condition of your employment.
We look forward to working with you at Consilium. Welcome aboard!
Sincerely,
___________________________________
================================================================================
ACKNOWLEDGMENT
I, _____________________________________, accept the above appointment based on
the terms and conditions stated.
_____________________________ ________________________
Signature Date
<PAGE>
EXHIBIT C
---------
EMPLOYEES OF FAST
FORM OF EMPLOYMENT AGREEMENT
----------------------------
Dear _______________________:
I am pleased to offer you a position with Consilium (the "Company") as its
_________________________________, commencing on ___________________, 199_.
This letter sets forth the material terms of our offer, so that you can make an
informed decision whether to become part of our team. All other terms of our
offer are contained in our Company's handbook and office notices past, present
and amended or added from time to time in the future as applicable to
______________________ (position). If you decide to join us, you will receive a
monthly salary of $_________, less applicable withholding, which will be paid
[monthly] [semi-monthly] in accordance with the Company's normal payroll
procedures. As a Company employee, you are also eligible to receive certain
employee benefits as contained in our Company's handbook and office notices.
If you choose to accept this offer, your employment with the Company will
be voluntarily entered into and will be for no specified period. As a result,
you will be free to resign at any time, for any reason or for no reason, as you
deem appropriate; provided that prior to such resignation or termination, you
have given the Company two months written notice. The Company will have a
similar right and may concludes its employment relationship with you at any
time, with or without notice, subject to two months written notice as above. In
lieu of such written notice, payment of two months salary may be made.
In the event of any dispute or claim relating to or arising out of our
employment relationship, this agreement, or the termination of our employment
relationship (including, but not limited to, any claims of wrongful termination
or age, sex, disability, race or other discrimination), you and the Company
agree that all such disputes shall be fully, finally and exclusively resolved by
binding arbitration conducted by the American Arbitration Association in Santa
Clara County, California, and you and the Company waive all rights to have such
disputes or claims tried by a court or jury. However, you and the Company agree
that this arbitration provision shall not apply to any dispute or claim relating
to or arising out of the misuse or misappropriation of the Company's trade
secrets or proprietary information.
To indicate your acceptance of the Company's offer, please sign and date
this letter in the space provided below and return it to me as soon as possible.
I have enclosed a duplicate original for your records. You will be required to
sign an Employee Inventions and Proprietary Rights Assignment Agreement as a
condition of your employment.
We look forward to working with you at Consilium. Welcome aboard!
Sincerely,
__________________________________
================================================================================
ACKNOWLEDGMENT
I, _____________________________________, accept the above appointment based on
the terms and conditions stated.
_______________________________ ______________________
Signature Date
<PAGE>
EXHIBIT D
---------
CONTRACT EMPLOYEES OF FAST
FORM OF INDEPENDENT CONTRACTOR SERVICES AGREEMENT
-------------------------------------------------
This Agreement is entered into effective this ___ day of _________________,
199(__), between Consilium, Inc., a Delaware corporation ("Company") and
______________________________, (hereinafter referred to as "Contractor").
1. Term. Contractor agrees to serve as a consultant to Company for the period
effective ___________________ and ending no later than ________________________.
2. Duties. Contractor will render the services set forth in Exhibit A hereto,
---------
and such other services concerning the business of the Company as may be
requested in writing by the Company from time to time to the best of his
ability, at such place as shall be mutually agreeable to both parties, by the
completion dates set forth in Exhibit A. In rendering such services, Contractor
---------
shall act as an independent contractor and not as an agent for or an employee of
the Company. Contractor shall not have the right or power to bind the Company to
any contract or agreement with any third party. The relationship created by this
Agreement is that of a contract for services and nothing herein contained is
intended to nor shall it create the relationship of partnership or joint
venture.
3. Compensation of Contractor. Company will pay Contractor for services
rendered and for the fees as set forth in Exhibit A.
---------
4. Trade Secrets; Intellectual Property Rights.
4.1 Disclosure of Inventions. Contractor agrees to disclose promptly in
------------------------
writing to Company, or any person designated by Company, every computer program,
trade secret, invention, discovery, improvement, copyrightable material,
process, manufacturing technique, formula, or know-how, whether or not
patentable, which is conceived, made, reduced to practice, or learned by
Contractor in the course of any work performed for Company.
4.2 Confidential Information.
------------------------
(a) Contractor acknowledges that during the term of this Agreement, he
or she will have access to Company's Confidential Information and further, that
the Confidential Information is a valuable, special and unique asset of the
Company. "Confidential Information" includes, but is not limited to, source and
object codes of Company's proprietary software, technical and business
information relating to Company's inventions and products, research and
development, production, engineering processes, costs, profit or margin
information, employee skills and salaries, finances, customers, marketing,
sales, production, and future business plans.
(b) The Contractor shall at all times, both during the term of this
Agreement, and thereafter, keep in confidence and trust all of Company's
Confidential Information. The Contractor shall not use Company's Confidential
Information other than as expressly permitted
<PAGE>
under the terms of this Agreement or as Company may provide by separate written
agreement. The Contractor shall take all reasonable steps to (1) prevent
unauthorized disclosure or use of Consilium's Confidential Information; and (2)
prevent Company's Confidential Information from falling into public domain or
into the possession of unauthorized persons. The Contractor shall immediately
notify Consilium of any unauthorized use or disclosure of Company's Confidential
Information. The Contractor agrees to assist Company in remedying such
unauthorized use or disclosure of Company's Confidential Information.
(c) Contractor's obligations with respect to Company's Confidential
Information also extend to any third party's proprietary or confidential
information disclosed to Contractor in the course of providing services to
Company.
(d) Notwithstanding the other provisions of this Agreement, some
things received by the Contractor will be considered Non-Confidential
Information of Company if (1) it has been published or is otherwise readily
available to the public other than by a breach of this Agreement; (2) it has
been rightfully received by Contractor from a third party without confidential
limitations; (3) it has been independently developed for Contractor by personnel
or agents having no access to the Confidential Information of Company; or (4) it
has been disclosed by Company to a third party without restriction on
disclosure.
4.3 Assignment of Copyrighted and Patented Works and Inventions.
-----------------------------------------------------------
(a) Contractor agrees to execute, upon Company's request, a signed
transfer of copyright and patent to Company in the form attached to this
Agreement as Exhibit B, for all works subject to copyright and/or patent
---------
protection, including computer programs, notes, sketches, drawings and reports,
that Contractor develops, solely or jointly with others, relating or useful to
Company's business as presently conducted or as conducted at any time during
Contractor's work with Company.
(b) Inventions resulting from Contractor's work for Company under this
Agreement are the exclusive property of Company. "Inventions" include, but are
not limited to, any and all inventions, improvements, discoveries, and technical
developments that Contractor solely, or jointly with others, conceives or
reduces to practice. contractor assigns to Company its entire right to all
Inventions, and agrees to cooperate with Company or its designee(s), both during
and after the term of this Agreement, in the procurement and maintenance of
Company's right in the Inventions, and to sign all papers which Company may
consider necessary and desirable for vesting Company or its designee(s) with
such rights.
(c) Contractor agrees to assist Company in any reasonable manner to
obtain and enforce for Company's benefit: patents; copyrights; and other
proprietary rights in any and all countries. And, Contractor agrees to execute,
when requested, patent, copyright, or similar applications and assignments to
Company and any other lawful documents deemed necessary by Company to carry out
the purpose of this Agreement. Contractor further agrees that the
<PAGE>
obligations and undertakings stated in this Section 4.3(c) will continue beyond
the termination of Contractor's service to Company. If called upon to render
assistance under this Section, Contractor will be entitled to a fair and
reasonable fee in addition to reimbursement of expenses incurred as a result of
Company's written request for assistance.
5. Term of Confidentiality. Contractor agrees that the results of his work
for Company, including the Copyrightable Works, will not be made available to
third parties during the term of this Agreement or for seven (7) years following
the termination of this Agreement without the prior written consent of Company.
Contractor agrees that during the term of this Agreement and for seven (7) years
following the termination of this Agreement, he shall maintain in confidence and
not use, except to the extent required to perform services for Company, any
Confidential Information, whether or not it is in written or permanent form.
Contractor's obligations with respect to the Confidential Information also
extend to proprietary or confidential information of any third party who may
disclose such information to the Company or Contractor in the course of
business.
5.1 Return of Company Property. Contractor acknowledges that Company's
--------------------------
sole and exclusive property includes, but is not limited to, all documents, such
as drawings, blueprints, copies of source code manuals, letters, notes,
notebooks, reports, sketches, formulae, memoranda, records, files, computer
programs, machine listings, data, shareholders list, employee lists, part
numbers, costs, profits, market sales, customer lists, and the like in its
custody or possession, whether delivered to Contractor by Company or made by
Contractor in the performance of services under this Agreement, relating to the
business activities of the Company, its customers or suppliers, and containing
any information or data whatsoever, whether or not Confidential Information.
Contractor agrees to promptly deliver all Company property in Contractor's
possession to Company at any time upon Company's request. Upon termination of
this Agreement for any reason or in any manner, the Contractor agrees to deliver
promptly to Company all such documents, together with any and all other Company
property then in Contractor's possession, except as may otherwise be allowed by
the prior written consent of Company.
6. Conflict of Interest. Contractor agrees that during the term of this
Agreement he will notify Company is he accepts any other contracts with a
competitor of Company. At such time, the contract between the Contractor and
Company can be severed if the company so wishes. Contractor further agrees that
he will not disclose to Company or bring onto the Company's premises, or induce
the Company to use, any confidential information that belongs to anyone other
than Company.
7. Injunctive Relief for Breach. Contractor acknowledges and agrees that the
obligations and promises of Contractor under this Agreement are of a unique,
intellectual character which gives them particular value. Contractor
acknowledges and agrees that a breach of any of the promises or agreements
contained herein will result in irreparable and continuing damage to Company for
which there will be no adequate remedy at law and, in the event of such breach,
Company shall be
<PAGE>
entitled to injunctive relief and/or a decree for specific performance, and such
other and further relief as may be proper (including monetary damages, if
appropriate).
8. Termination. Company and Contractor each reserve the right to terminate
this Agreement at any time, provided that no such termination shall affect
Company's rights or Contractor's responsibilities under Sections 4 or 5 hereof.
The terminating party will notify the other party in writing of its election to
terminate at least one (1) business day prior to the effective date of
termination.
9. General Provisions.
9.1 Governing Law. This Agreement shall be governed and construed in
-------------
accordance with the laws of the State of California.
9.2 Entire Agreement. This instrument sets forth the entire understanding
----------------
and agreement of the parties as to the subject matter of this Agreement. It may
not be changed orally, but only by a writing signed by both parties. If any
provision of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions shall continue in full force
without being impaired or invalidated in any way. The waiver by Company of a
breach of any provision of this Agreement by Contractor shall not operate or be
construed as a waiver of any other or subsequent breach by Contractor.
9.3 Successors and Assigns. Neither this Agreement nor any of the rights
----------------------
or obligations of Contractor arising hereunder shall be assigned or transferred,
either voluntarily or involuntarily by operation of law or otherwise, without
Company's prior written consent. This Agreement shall inure to the benefit of
successors and assigns of Company, and shall be binding on Contractor's heirs
and legal representatives.
9.4 Notification. All notices, requests and other communications
------------
hereunder shall be in writing, and shall be deemed to have been duly given or
mailed to the address as either party may designate by written notice to the
other. Any such notices, requests or other communications shall be effective
three (3) days after the date of the postmark.
9.5 Legal Fees. In the event legal action is instituted by either party
----------
to enforce the terms and conditions of this Agreement against the other, the
party prevailing in any such action shall be entitled to recover all reasonable
attorneys' fees and costs incurred by the prevailing party in such action.
IN WITNESS WHEREOF, this Agreement has been executed and delivered to be
effective as of the date first above written.
Consilium, Inc. ("Company") Contractor:
______________________________ _________________________________
Signature Signature
______________________________ _________________________________
Printed Name Printed Name
485 Clyde Avenue
Mountain View, CA 94043 USA
______________________________ _________________________________
Address Address
_________________________________
Taxpayer ID #
<PAGE>
EXHIBIT A
---------
Description of Services:
By request and not limited to:
Fees and terms of payment:
<PAGE>
EXHIBIT B
---------
Assignment of Copyright and/or Patent:
For good and valuable consideration, receipt of which is hereby acknowledged,
the undersigned hereby sells, assigns and transfers to Consilium, Inc., a
Delaware corporation and its successors and assigns, the copyright and/or patent
in and to the following work, which was created by the following indicated
author(s):
Title:__________________________________________________________________________
Author(s):______________________________________________________________________
Copyright Office Identification No. and/or patent Nos. (if any):
_______________________________________________________________________________,
and all of the rights, title and interest of the undersigned, vested and
contingent, therein and thereto.
Executed this ________ day of _____________, 199____.
Signature:___________________________
Printed Name:________________________
<PAGE>
EXHIBIT E
---------
FORM OF PROPRIETARY RIGHTS AND INFORMATION AGREEMENT
----------------------------------------------------
In consideration of new or continued employment by or for Consilium, Inc.,
a Delaware corporation (the "Company"), the undersigned (the "Employee") agrees
that:
1. Previous Work. The Employee hereby acknowledges and agrees that all
-------------
contributions made and previous work done by him for the Company relating in any
way to the conception, design, development or support of products for the
Company are the property of the Company and not of the Employee or any third
party.
2. Confidentiality. The Employee will maintain in confidence and will
---------------
not disclose or use, either during or after the term of his employment without
the prior express written consent of the company, any proprietary or
confidential information or know-how belonging to the Company, whether or not it
is in written or permanent form, except to the extent required to enable the
Employee to perform duties on behalf of the Company in his capacity as an
employee. Such proprietary or confidential information or know-how includes,
but not by way of limitation, technical and business information relating to its
inventions or products, research and development, production processes,
manufacturing and engineering processes, machines and equipment, finances,
customers, marketing, and production and future business plans. The Employee
further agrees that upon termination of his employment or upon the request of
his supervisor before such termination, he will deliver to the Company all
written and tangible material which shall come into his custody or possession
incorporating such proprietary or confidential information or know-how or
otherwise relating to the Company's business. These obligations with respect to
proprietary or confidential information or know-how extend to such types of
information belonging to customers and suppliers of the Company who may have
disclosed such information to the Company or the Employee in the course of
business.
3. Inventions.
----------
(a) Disclosure and Assignment. The Employee will promptly disclose
-------------------------
and describe to the Company all inventions, discoveries and technical
developments (herein collectively referred to as "Inventions"), whether or not
patentable, which he solely or jointly with others conceives or reduces to
practice during the term of his employment; provided that the Company shall
receive such information in confidence. The Employee hereby assigns and agrees
to assign to the Company his entire rights, title and interest in and to such
inventions which relate in any way to or are useful in the Company's business as
presently conducted or as conducted at any future time during his employment,
and agrees to cooperate with the Company and its designee(s) both during and
after his employment in the procurement and maintenance, at the Company's
expense and at its discretion, of patents, copyrights, and/or other protection
of the company's rights in such inventions. The Employee will keep and maintain
adequate and current written records of all inventions, which records shall,
except to the extent provided in
<PAGE>
subparagraph (b) hereof, be and remain the property of the Company and be
available to the Company at all times.
(b) Limited Exclusion. The Employee's obligation to assign inventions
-----------------
to the Company does not apply to an invention for which no equipment, supplies,
facility, or trade secret information of the Company was used and which was
developed entirely on the Employee's own time, and (1) which does not relate to
the business of the Company or to the Company's actual or demonstrably
anticipated research and development; or (2) which does not result from any work
performed by the Employee for the Company. This limited exclusion does not
apply to any patent or invention covered by any contract requiring full title to
be in the United States.
(c) Subsequent Patent Application or Copyright Registration. If a
-------------------------------------------------------
patent application or copyright registration is filed by the Employee or on the
Employee's behalf within one (1) year after leaving the employ of the Company,
describing an invention within the scope of the Employee's work for the Company
or which otherwise relates to a portion of the Company's business of which he
has knowledge during his employment, it is to be conclusively presumed that the
invention was conceived by the Employee during the period of such employment.
4. Absence of Conflicts.
--------------------
(a) To the best of the Employee's knowledge, there is no other
contract or duty on his part now in existence to assign inventions unless a copy
of such contract is attached hereto.
(b) The Employee agrees that he will not disclose or induce the
Company to use any confidential information or material that he is now or shall
become aware of which belongs to anyone other than the Company.
(c) The Employee agrees that he will not, during his employment by the
Company, engage in any employment, consulting or other activity other than for
the Company in any business competitive with the Company's business as presently
conducted or as conducted at any future time during his employment.
5. Copies of Documents. The Employee recognizes that all records, notes,
-------------------
compilations, or other recorded matter, and copies of reproductions thereof,
relating to the Company's operations, activities or business made or received by
the Employee during any period of employment with the Company are and shall be
the exclusive property of the Company, and the Employee will keep the same at
all times in the Company's custody and subject to its control, and will
surrender the same at the termination of his employment, if not before.
6. Prior Inventions. The Employee represents and agrees that he has
----------------
listed below all inventions owned by the Employee or by others conceived or made
by the Employee prior to his employment. These are the only inventions which
are not subject to this Agreement, unless otherwise specifically provided for in
Paragraph 3 above.
<PAGE>
(1)_____________________________________________________________________________
(2)_____________________________________________________________________________
(3)_____________________________________________________________________________
7. Injunctive Relief for Breach. The Employee acknowledges and agrees
----------------------------
that a breach of any of the promises or agreements contained herein will result
in irreparable and continuing damage to the Company for which there will be no
adequate memory at law, and in the event of such a breach, the Company shall be
entitled to injunctive relief and/or a decree for specific performance, and such
other and further relief as may be proper (including monetary damages, if
appropriate).
8. Waiver of a Breach. The waiver by the Company of a breach of any
------------------
provision of this Agreement by Employee shall not operate or be construed as a
waiver of any other or subsequent breach by the Employee.
9. Severability. If any provision of this Agreement is held to be
------------
invalid, void or unenforceable, the remaining provisions shall nevertheless
continue in full force and effect without being impaired or invalidated in any
way.
Executed this ____________ day of ___________, 199_____.
_______________________________
Employee Signature
_______________________________
Printed Name
Witnessed and agreed to:
By:____________________________
Title:_________________________
Date:__________________________
<PAGE>
EMPLOYMENT AGREEMENT
LIMITED EXCLUSION NOTIFICATION
This is to notify you in accordance with Section 2872 of the California
Labor Code that the employment agreement between you and the Company does not
require you to assign to the Company, any invention for which no equipment,
supplies, facility or trade secret information of the Company was used and which
was developed entirely on your own time, and (a) which does not relate (1) to
the business of the Company; or (2) to the Company's actual or demonstrably
anticipated research or development; or (b) which does not result from any work
performed by you for the Company. This limited exclusion does not apply to any
patent or invention covered by a contract requiring full title to such patent or
invention to be in the United States.
I acknowledge receipt of a copy of this notification.
Executed this _________ day of ____________, 199______.
_______________________________
Employee Signature
_______________________________
Printed Name
Witnessed and agreed to:
By:____________________________
Title:_________________________
Date:__________________________
<PAGE>
EXHIBIT F
---------
I, Ng Boon Thiong, President of FAST Associates, Pte., Ltd., do hereby
declare:
1. FAST is a corporation duly organized, validly existing and in good
standing under the laws of Singapore and is qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which the failure
to be so qualified and in good standing would have a material adverse effect on
the business, assets (including intangible assets), properties, liabilities
(contingent or otherwise), financial condition, operations, results of
operations or prospects of FAST. FAST has all requisite power and authority to
own, lease and operate its properties and to carry on its business as now being
conducted.
2. The execution and delivery of the Asset Purchase Agreement and the
Ancillary Documents and the consummation of the transactions contemplated
thereby have been duly authorized by all requisite corporate and shareholder
action on the part of FAST.
3. The execution, delivery and performance of the Asset Purchase
Agreement and the Ancillary Documents by FAST, and the consummation by such
parties of the transactions contemplated thereby will not, conflict with or
result in the breach of any material terms or conditions of, constitute a
default under, permit any party to accelerate any material right under,
renegotiate, or terminate, require consent, approval, or waiver by any party
under, or result in the creation of any lien, charge, encumbrance, or
restriction on any of the Purchased Assets pursuant to FAST's Articles of
Association or Bylaws or any material agreement (including government
contracts), indenture, mortgage, franchise, license, permit, lease or other
instrument of any kind or any judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to FAST or any of the Purchased Assets.
4. No consent, approval, order or authorization of or registration,
declaration or filing with or exemption by, any court, administrative agency or
commission or other governmental authority or instrumentality is required under
applicable laws or regulations by or with respect to the consummation by FAST of
the transactions contemplated by the Asset Purchase Agreement.
5. The Asset Purchase Agreement and the Ancillary Documents have been
duly executed and delivered by FAST, and constitute the valid and binding
obligations of FAST, enforceable against FAST in accordance with their
respective terms.
6. FAST has the right and power to sell, convey, assign, transfer and
deliver any interest that it may have in the Purchased Assets as provided in the
Asset Purchase Agreement. The Bill of Sale and other agreements and documents
contemplated therein to be delivered by FAST to effect the transfer of the
Purchased Assets are, or will be when executed and delivered,
<PAGE>
sufficient to effect the sale, transfer, conveyance and assignment of all of
FAST's right, title and interest in the Purchased Assets.
7. There are no claims, actions, suits, proceedings or investigations in
progress or pending before any court or governmental agency, against or relating
to FAST or the Purchased Assets nor, to our knowledge, any threat thereof. FAST
is not a party to any decree, order or arbitration award (or agreement entered
into in any administrative, judicial or arbitration proceeding with any
governmental authority) with respect to the operation of FAST or the Purchased
Assets.
8. Except as disclosed in the Asset Purchase Agreement and the Schedules
thereto, there is no mortgage, security interest, pledge, lien, claim or other
encumbrance upon or affecting the Purchased Assets.
Dated: July 31, 1997 By:______________________________
Ng Boon Thiong
