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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): OCTOBER 14, 1998
CONSILIUM, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 0-17754 94-2523965
(State or other jurisdiction of (Commission File Number) (I.R.S. Employer)
incorporation or organization) Identification No.)
485 CLYDE AVENUE 94043
MOUNTAIN VIEW, CALIFORNIA (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code: (650) 691-6100
Not applicable.
---------------------------------------------
(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On October 12, 1998, Consilium, Inc. (the "Company"), Applied
Materials, Inc. ("Applied Materials") and Pennsylvania Acquisition Sub, Inc.
("Sub") entered into an Agreement and Plan of Merger and Reorganization (the
"Agreement") pursuant to which Applied Materials is to acquire the Company in a
stock-for-stock merger. As more fully described in the Agreement and the joint
press release, both of which are filed herewith, Sub will merge with and into
the Company and each share of the Company's stock will be exchanged for between
0.182 and 0.165 of a share of Applied Material's common stock, with the actual
ratio being based upon Applied Material's average stock closing price during a
specified period prior to the meeting of the Company's stockholders to vote on
the merger. The merger, which will be accounted for as a pooling-of-interests,
is subject to, among other things, regulatory approval and approval of the stock
of the Company. Certain stockholders of the Company have already entered into
voting agreements in support of the merger.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial statements of business acquired. Not applicable.
(b) Pro forma financial information. Not applicable.
(c) Exhibits.
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Exhibit No. Description
- ----------- -----------
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2.1 Agreement and Plan of Merger and Reorganization, dated as of
October 12, 1998, by and among Applied Materials, Inc., a
Delaware corporation; Pennsylvania Acquisition Sub, Inc., a
Delaware corporation and wholly-owned subsidiary of
Applied Materials, Inc.; and Consilium, Inc., a
Delaware corporation.
99.1 Joint press release dated October 12, 1998.
99.2 Form of Voting Agreement dated October 12, 1998 by and
between Applied Materials, Inc., a Delaware corporation and
certain stockholders of Consilium, Inc.
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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 hereunto duly authorized.
Consilium, Inc.
October 14, 1998 By: /s/ Laurence R. Hootnick
------------------------------------------
Laurence R. Hootnick
President and Chief Executive Officer
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EXHIBIT INDEX
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Exhibit No. Description
- ----------- -----------
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2.1 Agreement and Plan of Merger and Reorganization, dated as of
October 12, 1998, by and among Applied Materials, Inc., a
Delaware corporation; Pennsylvania Acquisition Sub, Inc., a
Delaware corporation and wholly-owned subsidiary of
Applied Materials, Inc.; and Consilium, Inc., a
Delaware corporation.
99.1 Joint press release dated October 12, 1998.
99.2 Form of Voting Agreement dated October 12, 1998 by and
between Applied Materials, Inc., a Delaware corporation and
certain stockholders of Consilium, Inc.
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EXHIBIT 2.1
================================================================================
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
among:
APPLIED MATERIALS, INC.,
a Delaware corporation;
PENNSYLVANIA ACQUISITION SUB, INC.,
a Delaware corporation; and
CONSILIUM, INC.,
a Delaware corporation
___________________________
Dated as of October 12, 1998
___________________________
================================================================================
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TABLE OF CONTENTS
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Section 1. Description Of Transaction.......................................................... 1
1.1 Merger of Merger Sub into the Company............................................... 1
1.2 Effect of the Merger................................................................ 1
1.3 Closing; Effective Time............................................................. 2
1.4 Certificate of Incorporation and Bylaws; Directors and Officers..................... 2
1.5 Conversion of Shares................................................................ 2
1.6 Closing of the Company's Transfer Books............................................. 4
1.7 Exchange of Certificates............................................................ 4
1.8 Preferred Stock..................................................................... 6
1.9 Warrants............................................................................ 7
1.10 Appraisal Rights.................................................................... 8
1.11 Tax Consequences.................................................................... 8
1.12 Accounting Consequences............................................................. 9
1.13 Further Action...................................................................... 9
Section 2. Representations And Warranties Of The Company....................................... 9
2.2 Certificate of Incorporation and Bylaws............................................. 9
2.3 Capitalization, Etc................................................................. 10
2.4 SEC Filings; Financial Statements................................................... 11
2.5 Absence of Changes.................................................................. 12
2.6 Title to Assets..................................................................... 15
2.7 Receivables; Customers.............................................................. 15
2.8 Real Property; Leasehold............................................................ 15
2.9 Intellectual Property............................................................... 16
2.10 Contracts........................................................................... 21
2.11 Sale of Products; Performance of Services........................................... 24
2.12 Liabilities......................................................................... 25
2.13 Compliance with Legal Requirements.................................................. 25
2.14 Certain Business Practices.......................................................... 25
2.15 Governmental Authorizations......................................................... 25
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(CONTINUED)
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2.16 Tax Matters......................................................................... 26
2.17 Employee and Labor Matters; Benefit Plans........................................... 27
2.18 Environmental Matters............................................................... 29
2.19 Insurance........................................................................... 30
2.20 Transactions with Affiliates........................................................ 31
2.21 Legal Proceedings; Orders........................................................... 31
2.22 Authority; Inapplicability of Anti-takeover Statutes; Binding Nature of Agreement... 31
2.23 Section 203 of the DGCL Not Applicable.............................................. 32
2.24 Inapplicability of Section 2115 of California Corporations Code..................... 32
2.25 No Existing Discussions............................................................. 32
2.26 Accounting Matters.................................................................. 32
2.27 Vote Required....................................................................... 32
2.28 Non-Contravention; Consents......................................................... 32
2.29 Fairness Opinion.................................................................... 33
2.30 Financial Advisor................................................................... 34
2.31 Full Disclosure..................................................................... 34
Section 3. Representations And Warranties Of Parent And Merger Sub............................. 34
3.1 Organization, Standing and Power.................................................... 34
3.2 SEC Filings; Financial Statements................................................... 35
3.3 Disclosure.......................................................................... 35
3.4 Authority; Binding Nature of Agreement.............................................. 36
3.5 No Vote Required.................................................................... 36
3.6 Non-Contravention; Consents......................................................... 36
3.7 Valid Issuance...................................................................... 36
3.8 Accounting Matters.................................................................. 36
Section 4. Certain Covenants Of The Company.................................................... 37
4.1 Access and Investigation............................................................ 37
4.2 Operation of the Company's Business................................................. 37
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(CONTINUED)
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4.3 No Solicitation..................................................................... 40
Section 5. Additional Covenants of the Parties................................................. 42
5.1 Registration Statement; Prospectus/Proxy Statement.................................. 42
5.2 Company Stockholders' Meeting....................................................... 42
5.3 Regulatory Approvals................................................................ 44
5.4 Stock Options....................................................................... 44
5.5 Employee Benefits................................................................... 45
5.6 Indemnification of Officers and Directors........................................... 46
5.7 Pooling of Interests................................................................ 47
5.8 Additional Agreements............................................................... 47
5.9 Disclosure.......................................................................... 47
5.10 Affiliate Agreements................................................................ 48
5.11 Tax Matters......................................................................... 48
5.12 Letter of the Company's Accountants................................................. 48
5.13 Listing............................................................................. 48
5.14 Resignation of Officers and Directors............................................... 49
5.15 Termination of 401(k) Plan.......................................................... 49
Section 6. Conditions Precedent To Obligations Of Parent And Merger Sub........................ 49
6.1 Accuracy of Representations......................................................... 49
6.2 Performance of Covenants............................................................ 49
6.3 Effectiveness of Registration Statement............................................. 50
6.4 Stockholder Approval; Appraisal Rights.............................................. 50
6.5 Consents............................................................................ 50
6.6 Agreements and Documents............................................................ 50
6.7 No Material Adverse Change.......................................................... 51
6.8 HSR Act; German Anticompetition Law................................................. 51
6.9 Listing............................................................................. 52
6.10 No Restraints....................................................................... 52
6.11 No Governmental Litigation.......................................................... 52
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(CONTINUED)
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6.12 No Other Litigation................................................................. 52
Section 7. Conditions Precedent To Obligation Of The Company................................... 52
7.1 Accuracy of Representations......................................................... 52
7.2 Performance of Covenants............................................................ 53
7.3 Effectiveness of Registration Statement............................................. 53
7.4 Stockholder Approval................................................................ 53
7.5 Documents........................................................................... 53
7.6 HSR Act; German Anticompetition Law................................................. 53
7.7 Listing............................................................................. 54
7.8 No Restraints....................................................................... 54
Section 8. Termination......................................................................... 54
8.1 Termination......................................................................... 54
8.2 Effect of Termination............................................................... 55
8.3 Expenses; Termination Fees.......................................................... 55
Section 9. Miscellaneous Provisions............................................................ 56
9.1 Amendment........................................................................... 56
9.2 Waiver.............................................................................. 56
9.3 No Survival of Representations and Warranties....................................... 56
9.4 Entire Agreement; Counterparts...................................................... 57
9.5 Applicable Law; Jurisdiction........................................................ 57
9.6 Disclosure Schedule................................................................. 57
9.7 Attorneys' Fees..................................................................... 57
9.8 Assignability....................................................................... 57
9.9 Notices............................................................................. 57
9.10 Cooperation......................................................................... 58
9.11 Construction........................................................................ 58
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AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION ("Agreement") is
made and entered into as of October 12, 1998, by and among: APPLIED MATERIALS,
INC., a Delaware corporation ("Parent"); PENNSYLVANIA ACQUISITION SUB, INC., a
Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"); and
CONSILIUM, INC., a Delaware corporation (the "Company"). Certain capitalized
terms used in this Agreement are defined in Exhibit A.
RECITALS
A. Parent, Merger Sub and the Company intend to effect a merger of
Merger Sub into the Company in accordance with this Agreement and the Delaware
General Corporation Law (the "Merger"). Upon consummation of the Merger, Merger
Sub will cease to exist, and the Company will become a wholly owned subsidiary
of Parent.
B. It is intended that the Merger qualify as a tax-free
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1986, as amended (the "Code"). For financial reporting purposes, it is
intended that the Merger be accounted for as a "pooling of interests."
C. The respective boards of directors of Parent, Merger Sub and the
Company have approved this Agreement and approved the Merger.
D. In order to induce Parent to enter into this Agreement and to
consummate the Merger, certain stockholders of the Company are entering into
Voting Agreements pursuant to which they are agreeing to vote in favor of the
adoption and approval of this Agreement and the approval of the Merger.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. DESCRIPTION OF TRANSACTION
1.1 MERGER OF MERGER SUB INTO THE COMPANY. Upon the terms and
subject to the conditions set forth in this Agreement, at the Effective Time (as
defined in Section 1.3), Merger Sub shall be merged with and into the Company,
and the separate existence of Merger Sub shall cease. The Company will continue
as the surviving corporation in the Merger (the "Surviving Corporation").
1.2 EFFECT OF THE MERGER. The Merger shall have the effects set
forth in this Agreement and in the applicable provisions of the Delaware General
Corporation Law (the "DGCL").
1.
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1.3 CLOSING; EFFECTIVE TIME. The consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at the offices
of Cooley Godward llp, located at Five Palo Alto Square, 3000 El Camino Real,
Palo Alto, California, at 10:00 a.m. on a date to be designated by Parent (the
"Closing Date"), which shall be no later than the second business day after the
satisfaction or waiver of the conditions set forth in Sections 6 and 7.
Contemporaneously with or as promptly as practicable after the Closing, the
parties hereto shall cause a properly executed certificate of merger conforming
to the requirements of the DGCL (the "Certificate of Merger") to be filed with
the Secretary of State of the State of Delaware. The Merger shall take effect
at the time the Certificate of Merger is filed with the Secretary of State of
the State of Delaware or at such later time as may be specified in the
Certificate of Merger (the "Effective Time").
1.4 CERTIFICATE OF INCORPORATION AND BYLAWS; DIRECTORS AND OFFICERS.
Unless otherwise determined by Parent prior to the Effective Time:
(A) the Certificate of Incorporation of the Surviving Corporation
shall be amended and restated as of the Effective Time to conform to Exhibit B;
(B) the Bylaws of the Surviving Corporation shall be amended and
restated as of the Effective Time to conform to the Bylaws of Merger Sub as in
effect immediately prior to the Effective Time; and
(C) the directors and officers of the Surviving Corporation
immediately after the Effective Time shall be the respective individuals who are
directors and officers of Merger Sub immediately prior to the Effective Time.
1.5 CONVERSION OF SHARES.
(A) Subject to Sections 1.5(b), 1.5(c) and 1.5(e), at the Effective
Time, by virtue of the Merger and without any further action on the part of
Parent, Merger Sub, the Company or any stockholder of the Company:
(I) any shares of Company Common Stock or Company Preferred
Stock then held by the Company or any Subsidiary of the Company (or held in
the Company's treasury) shall be canceled and retired and shall cease to
exist at the Effective Time, and no consideration shall be delivered in
exchange therefor;
(II) any shares of Company Common Stock or Company Preferred
Stock then held by Parent, Merger Sub or any other Subsidiary of Parent shall be
canceled and retired and shall cease to exist at the Effective Time, and no
consideration shall be delivered in exchange therefor;
(III) each share of the common stock, $0.001 par value per
share, of Merger Sub then outstanding shall be converted into one share of
common stock of the Surviving Corporation; and
2.
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(IV) except as provided in clauses "(i)" and "(ii)" of this
sentence, each share of Company Common Stock then outstanding shall be converted
into the right to receive that fraction of a share of Parent Common Stock equal
to the "Exchange Ratio." The Exchange Ratio shall be equal to a fraction
(rounded to the nearest third decimal point), (A) the numerator of which shall
be equal to $5.50, and (B) the denominator of which shall be equal to the Parent
Average Stock Price; PROVIDED, HOWEVER, that if the Parent Average Stock Price
is equal to or less than $30.25, then the Exchange Ratio shall be 0.182, and if
the Parent Average Stock Price is equal to or greater than $33.43, then the
Exchange Ratio shall be 0.165.
(B) Notwithstanding anything to the contrary contained in this
Agreement, if the "Fully-Diluted Number of Shares" (as defined below) exceeds
the "Maximum Number of Shares" (as defined below), then the Exchange Ratio shall
be equal to the product of: (1) the number that would have constituted the
Exchange Ratio if the Exchange Ratio were calculated in accordance with Section
1.5(a)(iv); MULTIPLIED BY (2) a fraction, the numerator of which shall be the
Maximum Number of Shares, and the denominator of which shall be the Fully
Diluted Number of Shares. For purposes of this Section 1.5(b):
(I) the "Fully-Diluted Number of Shares" shall be equal to the
sum of:
(A) the number of shares of Company Common Stock
outstanding immediately prior to the Effective Time
(assuming that shares of Company Common Stock had been
issued pursuant to the ESPP in the manner described in
Section 5.4(d));
(B) the number of shares of Company Common Stock issuable
upon the conversion of any shares of Company Preferred
Stock outstanding immediately prior to the Effective
Time;
(C) the number of shares of Company Common Stock issuable
upon the exercise of any Company Options outstanding
immediately prior to the Effective Time (whether or
not such Company Options are then exercisable); and
(D) the number of shares of Company Common Stock issuable
upon the exercise of any Company Warrants outstanding
immediately prior to the Effective Time (whether or
not such Company Warrants are then exercisable); and
(II) the "Maximum Number of Shares" shall be equal to
12,798,447.
3.
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(C) If, between the date of this Agreement and the Effective Time, the
outstanding shares of Company Common Stock or Parent Common Stock are changed
into a different number or class of shares by reason of any stock split,
division or subdivision of shares, stock dividend, reverse stock split,
consolidation of shares, reclassification, recapitalization or other similar
transaction, then the Exchange Ratio shall be appropriately adjusted.
(D) If any shares of Company Common Stock or Company Preferred Stock
outstanding immediately prior to the Effective Time are unvested or are subject
to a repurchase option, risk of forfeiture or other condition under any
applicable restricted stock purchase agreement or other agreement with the
Company or under which the Company has any rights, then the shares of Parent
Common Stock issued in exchange for such shares of Company Common Stock or
Company Preferred Stock will also be unvested and subject to the same repurchase
option, risk of forfeiture or other condition, and the certificates representing
such shares of Parent Common Stock may accordingly be marked with appropriate
legends. The Surviving Corporation shall take all action that may be necessary
to ensure that, from and after the Effective Time, Parent is entitled to
exercise any such repurchase option or other right set forth in any such
restricted stock purchase agreement or other agreement.
(E) No fractional shares of Parent Common Stock shall be issued in
connection with the Merger, and no certificates or scrip for any such fractional
shares shall be issued. Any holder of Company Common Stock, Company Preferred
Stock or Company Warrants who would otherwise be entitled to receive a fraction
of a share of Parent Common Stock (after aggregating all fractional shares of
Parent Common Stock issuable to such holder) shall, in lieu of such fraction of
a share and, upon surrender of such holder's Company Stock Certificate(s) (as
defined in Section 1.6) or warrants, as the case may be, be paid in cash the
dollar amount (rounded to the nearest whole cent), without interest, determined
by multiplying such fraction by the Parent Average Stock Price.
1.6 CLOSING OF THE COMPANY'S TRANSFER BOOKS. At the Effective Time:
(a) all shares of Company Common Stock outstanding immediately prior to the
Effective Time shall automatically be canceled and retired and shall cease to
exist, and all holders of certificates representing shares of Company Common
Stock that were outstanding immediately prior to the Effective Time shall cease
to have any rights as stockholders of the Company; and (b) the stock transfer
books of the Company shall be closed with respect to all shares of Company
Common Stock outstanding immediately prior to the Effective Time. No further
transfer of any such shares of Company Common Stock shall be made on such stock
transfer books after the Effective Time. If, after the Effective Time, a valid
certificate previously representing any shares of Company Common Stock (a
"Company Stock Certificate") is presented to the Exchange Agent (as defined in
Section 1.7) or to the Surviving Corporation or Parent, such Company Stock
Certificate shall be canceled and shall be exchanged as provided in Section 1.7.
1.7 EXCHANGE OF CERTIFICATES.
(A) Harris Trust and Savings Bank or such other reputable bank or
trust company selected by Parent prior to the Closing Date shall act as exchange
agent in the
4.
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Merger (the "Exchange Agent"). As soon as practicable after the Effective Time,
Parent shall deposit with the Exchange Agent (i) certificates representing the
shares of Parent Common Stock issuable pursuant to this Section 1, and (ii) cash
sufficient to make payments in lieu of fractional shares in accordance with
Section 1.5(e). The shares of Parent Common Stock and cash amounts so deposited
with the Exchange Agent, together with any dividends or distributions received
by the Exchange Agent with respect to such shares, are referred to collectively
as the "Exchange Fund."
(B) As soon as reasonably practicable after the Effective Time, the
Exchange Agent will mail to the record holders of Company Stock Certificates (i)
a letter of transmittal in customary form and containing such provisions as
Parent and the Company may reasonably specify (including a provision confirming
that delivery of Company Stock Certificates shall be effected, and risk of loss
and title to Company Stock Certificates shall pass, only upon delivery of such
Company Stock Certificates to the Exchange Agent), and (ii) instructions for use
in effecting the surrender of Company Stock Certificates in exchange for
certificates representing Parent Common Stock. Upon surrender of a Company
Stock Certificate to the Exchange Agent for exchange, together with a duly
executed letter of transmittal and such other documents as may be reasonably
required by the Exchange Agent or Parent, (1) the holder of such Company Stock
Certificate shall be entitled to receive in exchange therefor a certificate
representing the number of whole shares of Parent Common Stock that such holder
has the right to receive pursuant to the provisions of Section 1.5 (and cash in
lieu of any fractional share of Parent Common Stock), and (2) the Company Stock
Certificate so surrendered shall be canceled. In the event of a transfer of
ownership of Company Common Stock which is not registered in the transfer
records of the Company, a certificate representing the proper number of shares
of Parent Common Stock may be issued to a transferee if the Company Stock
Certificate is presented to the Exchange Agent, accompanied by all documents
required to evidence and effect such transfer and by evidence that any
applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this Section 1.7(b), each Company Stock Certificate shall be
deemed, from and after the Effective Time, to represent only the right to
receive shares of Parent Common Stock (and cash in lieu of any fractional share
of Parent Common Stock) as contemplated by Section 1. If any Company Stock
Certificate shall have been lost, stolen or destroyed, Parent may, in its
discretion and as a condition precedent to the issuance of any certificate
representing Parent Common Stock, require the owner of such lost, stolen or
destroyed Company Stock Certificate to provide an appropriate affidavit and to
deliver a bond (in such sum as Parent may reasonably direct) as indemnity
against any claim that may be made against the Exchange Agent, Parent or the
Surviving Corporation with respect to such Company Stock Certificate.
(C) No dividends or other distributions declared or made with respect
to Parent Common Stock with a record date after the Effective Time shall be paid
to the holder of any unsurrendered Company Stock Certificate with respect to the
shares of Parent Common Stock which such holder has the right to receive upon
surrender thereof until such holder surrenders such Company Stock Certificate in
accordance with this Section 1.7 (at which time such holder shall be entitled,
subject to the effect of applicable escheat or similar laws, to receive all such
dividends and distributions, without interest).
5.
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(D) Any portion of the Exchange Fund that remains undistributed to
holders of Company Stock Certificates as of the date 360 days after the date on
which the Merger becomes effective shall be delivered to Parent upon demand, and
any holders of Company Stock Certificates who have not theretofore surrendered
their Company Stock Certificates in accordance with this Section 1.7 shall
thereafter look only to Parent for satisfaction of their claims for Parent
Common Stock, cash in lieu of fractional shares of Parent Common Stock and any
dividends or distributions with respect to Parent Common Stock.
(E) Each of the Exchange Agent, Parent and the Surviving Corporation
shall be entitled to deduct and withhold from any consideration payable or
otherwise deliverable pursuant to this Agreement to any holder or former holder
of Company Common Stock such amounts as may be required to be deducted or
withheld therefrom under the Code or any provision of state, local or foreign
tax law or under any other applicable Legal Requirement. To the extent such
amounts are so deducted or withheld, such amounts shall be treated for all
purposes under this Agreement as having been paid to the Person to whom such
amounts would otherwise have been paid.
(F) Neither Parent nor the Surviving Corporation shall be liable to
any holder or former holder of Company Common Stock or Company Preferred Stock
or to any other Person with respect to any shares of Parent Common Stock (or
dividends or distributions with respect thereto), or for any cash amounts,
delivered to any public official pursuant to any applicable abandoned property
law, escheat law or similar Legal Requirement.
1.8 PREFERRED STOCK.
(A) Subject to Section 4.2(b)(xiv), the Company shall use all
reasonable efforts to:
(I) cause each holder of Company Preferred Stock who has not
converted all of such holder's Company Preferred Stock into Company Common
Stock prior to the Effective Time to enter into an agreement with Parent
pursuant to which each share of Company Preferred Stock held by such holder
which has not been converted into Company Common Stock prior to the
Effective Time will, at the Effective Time, be exchanged for a number of
shares of Parent Common Stock equal to the sum of (A) the number of shares
of Parent Common Stock that a holder of a share of Company Preferred Stock
would have received if (1) such share of Company Preferred Stock had been
converted into Company Common Stock immediately prior to the Effective Time,
and (2) such Company Common Stock had been converted into the right to
receive Parent Common Stock in accordance with Section 1.5(a)(iv), PLUS (B)
the number of shares of Parent Common Stock as is equal to the quotient of
(1) the sum of (x) all dividends accrued as of the Effective Time with
respect to such share of Company Preferred Stock and (y) the present value
of all dividends that would accrue with respect to such share of Company
Preferred Stock if such share were to be held from the Effective Time until
August 19, 1999 and such dividends were to be calculated in accordance with
the Company's Certificate of Incorporation and Certificate of Designation of
Series A
6.
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Convertible Preferred Stock (it being understood that a discount factor of
7% shall be used in calculating such present value), DIVIDED BY (2) the
Parent Average Stock Price;
(II) cause each holder of Company Preferred Stock who has
converted Company Preferred Stock into Company Common Stock prior to the
Effective Time to confirm in a writing delivered to Parent and the Company prior
to the Effective Time (which writing shall be in a form reasonably satisfactory
to Parent) that such holder received (upon the conversion of such Company
Preferred Stock into Company Common Stock) the number of shares of Company
Common Stock which such holder was entitled to receive pursuant to the Company's
Certificate of Incorporation, Certificate of Designation of Series A Convertible
Preferred Stock and otherwise; and
(III) cause each holder of Company Preferred Stock who, prior
to the Effective Time, has not converted all of such holder's shares of Company
Preferred Stock into Company Common Stock or entered into an agreement of the
type referred to in Section 1.8(a)(i), to enter into an agreement with Parent
and the Company (in a form reasonably satisfactory to Parent) which specifies
the number of shares of Parent Common Stock into which such Company Preferred
Stock will be convertible after the Effective Time.
(B) Persons who hold any shares of Company Preferred Stock that are
not converted into Company Common Stock prior to the Effective Time or exchanged
for Parent Common Stock pursuant to the exchange offer referred to in Section
1.8(a)(i) shall, in accordance with the Company's Certificate of Incorporation
and Certificate of Designation of Series A Convertible Preferred Stock, continue
to hold such shares of Company Preferred Stock after the Effective Time in
accordance with their terms (it being understood that, in accordance with the
Company's Certificate of Incorporation and Certificate of Designation of Series
A Convertible Preferred Stock, after the Effective Time, each such share of
Company Preferred Stock will be convertible into the number of shares of Parent
Common Stock that would have been issued in respect thereof if (i) such share of
Company Preferred Stock had been converted into Company Common Stock immediately
prior to the Effective Time, and (ii) such Company Common Stock had been
converted into the right to receive Parent Common Stock in accordance with
Section 1.5(a)(iv)).
1.9 WARRANTS.
(A) Neither Parent nor any other Person shall assume those certain
warrants to purchase shares of Company Common Stock issued to Imperial Bancorp
pursuant to that certain Warrant To Purchase Stock dated April 1, 1997 (the
"Imperial Bancorp Warrant"); therefore, in accordance with the terms of the
Imperial Bancorp Warrant, any portion of such warrants that has not been
exercised as of the Effective Time shall be deemed to have been automatically
converted pursuant to Section 1.2 of the Imperial Bancorp Warrant into shares of
Company Common Stock.
(B) At the Effective Time, all rights with respect to Common Stock
under each Placement Agent Warrant then outstanding shall be converted into and
become rights
7.
<PAGE>
with respect to Parent Common Stock, and Parent shall assume each such
Placement Agent Warrant in accordance with the terms (as in effect as of the
date of this Agreement) of the warrant agreement by which it is evidenced. From
and after the Effective Time, (i) each Placement Agent Warrant assumed by Parent
may be exercised solely for shares of Parent Common Stock, (ii) the number of
shares of Parent Common Stock subject to each such Placement Agent Warrant shall
be equal to the number of shares of Company Common Stock subject to such
Placement Agent Warrant immediately prior to the Effective Time multiplied by
the Exchange Ratio, rounding down to the nearest whole share (with the cash
value of any fraction of a share of Parent Common Stock, less the exercise price
applicable to such fraction of a share, being payable for the portion of such
assumed Placement Agent Warrant relating to any such fraction of a share of
Parent Common Stock), (iii) the per share exercise price under each such
Placement Agent Warrant shall be adjusted by dividing the per share exercise
price under such Placement Agent Warrant by the Exchange Ratio and rounding up
to the nearest cent and (iv) any restriction on the exercise of any such
Placement Agent Warrant shall continue in full force and effect and the term,
exercisability, vesting schedule and other provisions of such Placement Agent
Warrant shall otherwise remain unchanged; PROVIDED, HOWEVER, that each Placement
Agent Warrant assumed by Parent in accordance with this Section 1.9(b) shall, in
accordance with its terms, be subject to further adjustment as appropriate to
reflect any stock split, division or subdivision of shares, stock dividend,
reverse stock split, consolidation of shares, reclassification, recapitalization
or other similar transaction subsequent to the Effective Time.
1.10 APPRAISAL RIGHTS.
(A) Notwithstanding anything to the contrary contained in this
Agreement, Appraisal Shares (as defined in Section 1.10(c)) shall not be
converted into or represent the right to receive Parent Common Stock in
accordance with Section 1.5(a) (or cash in lieu of fractional shares in
accordance with Section 1.5(e)), and each holder of Appraisal Shares shall be
entitled only to such rights with respect to such Appraisal Shares as may be
granted to such holder in Section 262 of the DGCL. From and after the Effective
Time, a holder of Appraisal Shares shall not have and shall not be entitled to
exercise any of the voting rights or other rights of a stockholder of the
Surviving Corporation. If any holder of Appraisal Shares shall fail to perfect
or shall waive, rescind, withdraw or otherwise lose such holder's right of
appraisal under Section 262 of the DGCL, then (i) any right of such holder to
require the Company to purchase the Appraisal Shares for cash shall be
extinguished and (ii) such shares shall automatically be converted into and
shall represent only the right to receive (upon the surrender of the certificate
or certificates representing such shares) Parent Common Stock in accordance with
Section 1.5(a) (and cash in lieu of any fractional share in accordance with
Section 1.5(e)).
(B) The Company (i) shall give Parent prompt written notice of any
demand by any stockholder of the Company for appraisal of such stockholder's
shares of Company Preferred Stock pursuant to the DGCL and of any other notice,
demand or instrument delivered to the Company pursuant to the DGCL, and (ii)
shall give Parent's Representatives the opportunity to participate in all
negotiations and proceedings with respect to any such notice,
<PAGE>
demand or instrument. The Company shall not make any payment or settlement offer
with respect to any such notice or demand unless Parent shall have consented in
writing to such payment or settlement offer.
(C) For purposes of this Agreement, "Appraisal Shares" shall
refer to any shares of Company Preferred Stock outstanding immediately prior to
the Effective Time that are held by stockholders who are entitled to demand and
who properly demand appraisal of such shares pursuant to, and who comply with
the applicable provisions of, Section 262 of the DGCL.
1.11 TAX CONSEQUENCES. For federal income tax purposes, the Merger is
intended to constitute a reorganization within the meaning of Section 368 of the
Code. The parties to this Agreement hereby adopt this Agreement as a "plan of
reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the
United States Treasury Regulations.
1.12 ACCOUNTING CONSEQUENCES. For financial reporting purposes, the
Merger is intended to be accounted for as a "pooling of interests."
1.13 FURTHER ACTION. If, at any time after the Effective Time, any
further action is determined by Parent to be necessary or desirable to carry out
the purposes of this Agreement or to vest the Surviving Corporation with full
right, title and possession of and to all rights and property of Merger Sub and
the Company, the officers and directors of the Surviving Corporation and Parent
shall be fully authorized (in the name of Merger Sub, in the name of the Company
and otherwise) to take such action.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Merger Sub as follows:
2.1 DUE ORGANIZATION; SUBSIDIARIES; ETC.
(A) The Company has no Subsidiaries, except for the Entities
identified in Part 2.1(a)(i) of the Company Disclosure Schedule; and neither the
Company nor any of the other Entities identified in Part 2.1(a)(i) of the
Company Disclosure Schedule owns any capital stock of, or any equity interest of
any nature in, any other Entity, other than the Entities identified in Part
2.1(a)(ii) of the Company Disclosure Schedule. (The Company and each of its
Subsidiaries are referred to collectively in this Agreement as the "Acquired
Corporations.") None of the Acquired Corporations has agreed or is obligated to
make, or is bound by any Contract under which it may become obligated to make,
any future investment in or capital contribution to any other Entity. None of
the Acquired Corporations has, at any time, been a general partner of, or has
otherwise been liable for any of the debts or other obligations of, any general
partnership, limited partnership or other Entity.
(B) Each of the Acquired Corporations is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all necessary power and authority: (i)
to conduct its business in the manner in which its business is currently being
conducted; (ii) to own and use its assets in the manner in which its
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assets are currently owned and used; and (iii) to perform its obligations under
all Contracts by which it is bound.
(C) Each of the Acquired Corporations is qualified to do business as a
foreign corporation, and is in good standing, under the laws of all
jurisdictions where the nature of its business requires such qualification and
where the failure to be so qualified would reasonably be expected to have a
Material Adverse Effect on the Acquired Corporations.
2.2 CERTIFICATE OF INCORPORATION AND BYLAWS. The Company has
delivered to Parent accurate and complete copies of the certificate of
incorporation, bylaws and other charter and organizational documents of the
respective Acquired Corporations, including all amendments thereto.
2.3 CAPITALIZATION, ETC.
(A) The authorized capital stock of the Company consists of: (i)
25,000,000 shares of Company Common Stock, of which 8,749,972 shares have been
issued and are outstanding as of September 30, 1998; and (ii) 4,000,000 shares
of Preferred Stock, $.01 par value per share, of which 3,000 shares are
designated as "Series A Convertible Preferred Stock" (the "Company Preferred
Stock"), of which 3,000 shares are issued and outstanding as of the date of this
Agreement. The maximum number of shares of Company Common Stock issuable upon
the conversion of all outstanding shares of Company Preferred Stock is
1,538,462. The Company has not repurchased any shares of its capital stock
pursuant to the stock repurchase program announced by the Company on August 13,
1998 and does not hold any shares of its capital stock in its treasury. All of
the outstanding shares of Company Common Stock and Company Preferred Stock have
been duly authorized and validly issued, and are fully paid and nonassessable.
As of the date of this Agreement, there are no shares of Company Common Stock or
Company Preferred Stock held by any of the other Acquired Corporations. Except
as set forth in Part 2.3(a)(i) of the Company Disclosure Schedule: (i) none of
the outstanding shares of Company Common Stock or Company Preferred Stock is
entitled or subject to any preemptive right, right of participation, right of
maintenance or any similar right created by the Company or imposed under
applicable law with respect to capital stock of the Company; (ii) none of the
outstanding shares of Company Common Stock or Company Preferred Stock is subject
to any right of first refusal in favor of the Company; and (iii) there is no
Acquired Corporation Contract relating to the voting or registration of, or
restricting any Person from purchasing, selling, pledging or otherwise disposing
of (or granting any option or similar right with respect to), any shares of
Company Common Stock or Company Preferred Stock. None of the Acquired
Corporations is under any obligation, or is bound by any Contract pursuant to
which it may become obligated, to repurchase, redeem or otherwise acquire any
outstanding shares of Company Common Stock or Company Preferred Stock. As of
September 30, 1998, the aggregate dollar amount of dividends accrued with
respect to all outstanding shares of Company Preferred Stock is $270,000. The
Company has never paid any dividends with respect to any Company Preferred
Stock.
10.
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(B) As of September 30, 1998: (i) 1,937,797 shares of Company Common
Stock are subject to issuance pursuant to outstanding options to purchase shares
of Company Common Stock; (ii) 108,059 shares of Company Common Stock are
reserved for future issuance pursuant to the Company's Employee Stock Purchase
Plan (the "ESPP"); and (iii) 250,000 shares of Company Common Stock are reserved
for future issuance pursuant to the Company Warrants. (Stock options granted by
the Company pursuant to the Company's stock option plans and otherwise are
referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the
Company Disclosure Schedule sets forth the following information with respect to
each Company Option outstanding as of the date of this Agreement: (i) the
particular plan (if any) pursuant to which such Company Option was granted; (ii)
the name of the optionee; (iii) the number of shares of Company Common Stock
subject to such Company Option; (iv) the exercise price of such Company Option;
(v) the date on which such Company Option was granted; (vi) the applicable
vesting schedules (which applicable vesting schedule may be provided by means of
a general description of the vesting schedules applicable to outstanding Company
Options), and the extent to which such Company Option is vested and exercisable
as of the date of this Agreement; and (vii) the date on which such Company
Option expires. The Company has delivered to Parent accurate and complete
copies of all stock option plans pursuant to which the Company has ever granted
stock options, the forms of all stock option agreements evidencing such options
and the actual Change of Control Agreements with each employee of the Company
who is a party to a Change of Control Agreement with the Company (the "Change of
Control Agreements"). The Company has delivered to Parent accurate and complete
copies of the Company Warrants. Except as set forth in Part 2.3(b) of the
Company Disclosure Schedule, the exercise price of the warrants to purchase
shares of Company Common Stock held by Imperial Bancorp is $3.98 per share, and
the exercise price of the warrants to purchase shares of Company Common Stock
held by Evelyn Hilton and Thomas Camarda is $6.33 per share.
(C) Except as set forth in Section 2.3(b) or as reserved for future
issuance under the ESPP, there is no: (i) outstanding subscription, option,
call, warrant or right (whether or not currently exercisable) to acquire any
shares of the capital stock or other securities of the Company; (ii) outstanding
security, instrument or obligation that is or may become convertible into or
exchangeable for any shares of the capital stock or other securities of the
Company; (iii) stockholder rights plan (or similar plan commonly referred to as
a "poison pill") or Contract under which the Company is or may become obligated
to sell or otherwise issue any shares of its capital stock or any other
securities; or (iv) to the Knowledge of the Company, condition or circumstance
that may give rise to or provide a basis for the assertion of a claim by any
Person to the effect that such Person is entitled to acquire or receive any
shares of capital stock or other securities of the Company.
(D) All outstanding shares of Company Common Stock, all outstanding
shares of Company Preferred Stock, all outstanding Company Options, all
outstanding Company Warrants and all outstanding shares of capital stock of each
Subsidiary of the Company have been issued and granted in compliance with (i)
all applicable securities laws and other applicable Legal Requirements, and (ii)
all material requirements set forth in applicable Contracts.
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(E) All of the outstanding shares of capital stock of the
corporations identified in Part 2.1(a)(ii) of the Company Disclosure Schedule
have been duly authorized and are validly issued, are fully paid and
nonassessable and are owned beneficially and of record by the Company, free and
clear of any Encumbrances.
2.4 SEC FILINGS; FINANCIAL STATEMENTS.
(A) The Company has delivered or made available (including through
the SEC EDGAR system) to Parent accurate and complete copies of all registration
statements, proxy statements and other statements, reports, schedules, forms and
other documents filed by the Company with the SEC since October 31, 1997, and
all amendments thereto (the "Company SEC Documents"). Except as set forth in
Part 2.4(a) of the Company Disclosure Schedule, since October 31, 1997, all
statements, reports, schedules, forms and other documents required to have been
filed by the Company with the SEC have been so filed. As of the time it was
filed with the SEC (or, if amended or superseded by a filing prior to the date
of this Agreement, then on the date of such filing): (i) each of the Company SEC
Documents complied in all material respects with the applicable requirements of
the Securities Act or the Exchange Act (as the case may be); and (ii) none of
the Company SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(B) The consolidated financial statements (including any related
notes) contained in the Company SEC Documents: (i) complied as to form in all
material respects with the published rules and regulations of the SEC applicable
thereto; (ii) were prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods covered (except
as may be indicated in the notes to such financial statements or, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC, and except that the
unaudited financial statements may not contain footnotes and are subject to
normal and recurring year-end adjustments which will not, individually or in the
aggregate, be material in amount), and (iii) fairly present the consolidated
financial position of the Company and its subsidiaries as of the respective
dates thereof and the consolidated results of operations and cash flows of the
Company and its subsidiaries for the periods covered thereby.
2.5 ABSENCE OF CHANGES. Except as set forth in Part 2.5 of the Company
Disclosure Schedule, since July 31, 1998:
(A) there has not been any material adverse change in the business,
condition, assets, liabilities, operations or results of operations of the
Acquired Corporations taken as a whole (it being understood that none of
the following shall be deemed, in and of itself, to constitute a material
adverse change in the business, condition, assets, liabilities, operations
or results of operations of the Acquired Corporations: (a) a change in the
market price or trading volume of the Company Common Stock, (b) a failure
by the Company to meet any published securities analyst estimates of
revenue or earnings for any period ending or for which earnings are
released on or after the date of this Agreement and prior to the Closing,
(c) a failure to report
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earnings results in any quarter ending on or after the date of this
Agreement consistent with the Company's historical earnings results for its
Semiconductor and Electronics business unit in any quarter during fiscal
1997 or 1998, (d) a change that results from conditions affecting the U.S.
economy or the world economy, (e) a change that results from conditions
affecting the semiconductor industry or the semiconductor equipment
industry so long as such conditions do not affect the Company in a
disproportionate manner as compared with companies of a similar size, (f) a
delay in customer orders arising primarily out of or resulting primarily
from the announcement of the transactions contemplated by this Agreement,
and (g) a change that results from the taking of any action required by
this Agreement), and no event has occurred that would reasonably be
expected to have a Material Adverse Effect on the Acquired Corporations;
(B) there has not been any material loss, damage or destruction to,
or any material interruption in the use of, any of the assets of any of the
Acquired Corporations (whether or not covered by insurance) that has had or
would reasonably be expected to have a Material Adverse Effect on the
Acquired Corporations;
(C) none of the Acquired Corporations has (i) other than pursuant to
the terms of the Company Preferred Stock as set forth in the Company's
Certificate of Incorporation and Certificate of Designation of Series A
Convertible Preferred Stock, declared, accrued, set aside or paid any
dividend or made any other distribution in respect of any shares of capital
stock, or (ii) repurchased, redeemed or otherwise reacquired any shares of
capital stock or other securities;
(D) none of the Acquired Corporations has sold, issued or granted, or
authorized the issuance of, (i) any capital stock or other security (except
for Company Common Stock issued upon the valid exercise of outstanding
Company Options in accordance with the terms of the option agreement
pursuant to which such Company Options are outstanding and shares of
Company Common Stock to be issued (A) upon conversion of Company Preferred
Stock, (B) upon the valid exercise of Company Warrants, and (C) pursuant to
the ESPP), (ii) any option, warrant or right to acquire any capital stock
or any other security (except (A) for Company Options described in Part
2.3(b)(i) of the Company Disclosure Schedule, (B) subject to Section
4.2(b)(ii), for future grants of options under the Company's stock option
plans, and (C) pursuant to the ESPP), or (iii) any instrument convertible
into or exchangeable for any capital stock or other security;
(E) the Company has not amended or waived any of its rights under, or
permitted the acceleration of vesting under, (i) any provision of any of
the Company's stock option plans, (ii) any provision of any agreement
evidencing any outstanding Company Option, or (iii) any restricted stock
purchase agreement;
(F) there has been no amendment to the certificate of incorporation,
bylaws or other charter or organizational documents of any of the Acquired
Corporations, and none of the Acquired Corporations has effected or been a
party to any merger,
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consolidation, amalgamation, share exchange, business combination,
recapitalization, reclassification of shares, stock split, division or
subdivision of shares, reverse stock split, consolidation of shares or
similar transaction;
(G) none of the Acquired Corporations has formed any Subsidiary or
acquired any equity interest or other interest in any other Entity, except
for rights of first refusal or similar rights that the Company may have
obtained (or may obtain) in connection with FAB300 third party software
licenses;
(H) none of the Acquired Corporations has made any capital
expenditure which, when added to all other capital expenditures made on
behalf of the Acquired Corporations since July 31, 1998, exceeds $250,000
in the aggregate;
(I) except in the ordinary course of business and consistent with
past practices, none of the Acquired Corporations has (i) entered into or
permitted any of the assets owned or used by it to become bound by any
Contract of the type referred to in clauses "(i)," "(ii)" and "(v)" through
"(xiv)" of Section 2.10(a), or (ii) amended or terminated, or waived any
material right or remedy under, any Contract of the type referred to in
Section 2.10(a);
(J) except in the ordinary course of business and consistent with
past practices, none of the Acquired Corporations has (i) acquired, leased
or licensed any material right or other material asset from any other
Person, except for third party licenses relating to FAB300 as more
particularly described in Part 2.5 of the Company Disclosure Schedule, (ii)
sold or otherwise disposed of, or leased or licensed, any material right or
other material asset to any other Person, or (iii) waived or relinquished
any right, except for rights or other assets acquired, leased, licensed or
disposed of in the ordinary course of business and consistent with past
practices;
(K) none of the Acquired Corporations has made any pledge of any of
its assets or otherwise permitted any of its assets to become subject to
any Encumbrance, except (i) for pledges of immaterial assets made in the
ordinary course of business and consistent with past practices, (ii)
pursuant to those certain loan documents with Venture Banking Group, (iii)
for liens for current taxes which are not yet due and payable, and (iv) for
easements, covenants, rights of way or other similar restrictions and
imperfections of title which have not adversely affected in any material
respect, and which are not reasonably expected to adversely affect in any
material respect, the business or operations of any of the Acquired
Corporations;
(L) none of the Acquired Corporations has (i) lent money to any
Person, except for advances to employees for business expenses or loans for
relocation expenses, in each case, in the ordinary course of business and
consistent with past practices, or (ii) incurred or guaranteed any
indebtedness for borrowed money except pursuant to those certain loan
documents with Venture Banking Group (accurate and complete copies of which
have been provided to Parent);
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(M) none of the Acquired Corporations has (i) established or adopted
any Plan (as defined in Section 2.17(a)), or (ii) caused or permitted any
Plan to be amended in any material respect,
(N) none of the Acquired Corporations has paid any bonus or made any
profit-sharing or similar payment to, or materially increased the amount of
the wages, salary, commissions, fringe benefits or other compensation or
remuneration payable to, any of its directors, officers or employees,
except (i) pursuant to existing bonus plans and other Plans referred to in
Part 2.17(a) of the Company Disclosure Schedule or new bonus or commission
plans substantially consistent with the terms of existing bonus or
commission plans; and (ii) for normal increases in wages, salaries or
commissions to non-officer employees in accordance with the Company's
customary review process or otherwise in a manner consistent with the
Company's past practices;
(O) none of the Acquired Corporations has changed any of its methods
of accounting or accounting practices in any material respect;
(P) no event has occurred, and no circumstance or condition exists,
that has resulted in or that could reasonably be expected to result in the
impairment of the capitalized software asset reflected in the Company's
books and records;
(Q) none of the Acquired Corporations has made any material Tax
election inconsistent with past practices;
(R) none of the Acquired Corporations has settled any Legal
Proceeding involving payments by any of the Acquired Corporations in excess
of $100,000 or equitable relief against any of the Acquired Corporations;
(S) none of the Acquired Corporations has entered into any material
transaction or taken any other material action that has had, or would
reasonably be expected to have, a Material Adverse Effect on the Acquired
Corporations; and
(T) none of the Acquired Corporations has agreed or committed to take
any of the actions referred to in clauses "(c)" through "(s)" above.
2.6 TITLE TO ASSETS. The Acquired Corporations own, and have good, valid
and marketable title to, all tangible personal property purported to be owned by
them, including: (i) all tangible personal property reflected on the Unaudited
Interim Balance Sheet (except for inventory sold or otherwise disposed of in the
ordinary course of business since the date of the Unaudited Interim Balance
Sheet); and (ii) all other tangible personal property reflected in the books and
records of the Acquired Corporations as being owned by the Acquired
Corporations. All of said items of tangible personal property are owned by the
Acquired Corporations free and clear of any Encumbrances, except for (1) any
lien for current taxes not yet due and payable, (2) minor liens that have arisen
in the ordinary course of business and that do not (in any case or in the
aggregate) materially detract from the value of the tangible personal property
subject thereto
15.
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or materially impair the operations of any of the Acquired Corporations, (3)
liens in favor of Venture Banking Group, and (4) liens described in Part 2.6 of
the Company Disclosure Schedule.
2.7 RECEIVABLES; CUSTOMERS. All existing accounts receivable of the
Acquired Corporations (including those accounts receivable reflected on the
Unaudited Interim Balance Sheet that have not yet been collected and those
accounts receivable that have arisen since July 31, 1998 and have not yet been
collected) represent valid obligations of customers of the Acquired Corporations
arising from bona fide transactions entered into in the ordinary course of
business. Between July 31, 1998 and the date of this Agreement, none of the
Acquired Corporations has written off as uncollectible, or established any
extraordinary reserve with respect to, any account receivable or other
indebtedness. Except as set forth in Part 2.7 of the Company Disclosure
Schedule, the Company has not received any notice or other communication (in
writing or otherwise), and, to the Knowledge of the Company, has not received
any other information, indicating that (a) any customer is likely to cease
dealing with the Company, or (b) any customer is dissatisfied in any material
respect with the operation of any product, system or program currently
maintained, sold or licensed by any of the Acquired Corporations or with any
services performed by any of the Acquired Corporations since January 1, 1996.
2.8 REAL PROPERTY; LEASEHOLD. None of the Acquired Corporations own any
real property or any interest in real property, except for the leaseholds
created under the real property leases identified in Part 2.8 of the Company
Disclosure Schedule.
2.9 INTELLECTUAL PROPERTY.
(A) For purposes of this Section 2.9 and the other provisions of
this Agreement, "Intellectual Property" means:
(I) all issued patents, reissued or reexamined patents,
revivals of patents, utility models, certificates of invention,
registrations of patents and extensions thereof, regardless of country or
formal name (collectively, "Issued Patents");
(II) all published or unpublished nonprovisional and
provisional patent applications, reexamination proceedings, invention
disclosures and records of invention (collectively "Patent Applications"
and, with the Issued Patents, the "Patents");
(III) all copyrights, copyrightable works, semiconductor
topography and mask work rights, including all rights of authorship, use,
publication, reproduction, distribution, performance transformation, moral
rights and rights of ownership of copyrightable works, semiconductor
topography works and mask works, and all rights to register and obtain
renewals and extensions of registrations, together with all other interests
accruing by reason of international copyright, semiconductor topography and
mask work conventions (collectively, "Copyrights");
16.
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(IV) trademarks, registered trademarks, applications for
registration of trademarks, service marks, registered service marks,
applications for registration of service marks, trade names, registered
trade names and applications for registrations of trade names
(collectively, "Trademarks");
(V) all technology, ideas, inventions, designs,
proprietary information, manufacturing and operating specifications, know-
how, formulae, trade secrets, technical data, computer programs, hardware,
software and processes; and
(VI) all other intangible assets, properties and rights
(whether or not appropriate steps have been taken to protect, under
applicable law, such other intangible assets, properties or rights).
(B) Except as set forth in Part 2.9(b) of the Company Disclosure
Schedule, each Acquired Corporation owns, or has a valid license (or otherwise
possesses legally enforceable rights) to use, all Intellectual Property that is
used in the business of such Acquired Corporation as currently conducted by such
Acquired Corporation, without any interference or conflict with or
misappropriation or infringement of any of the Intellectual Property rights of
others. To the Knowledge of the Company, neither the execution, delivery or
performance of this Agreement or any of the other agreements referred to in this
Agreement, nor the consummation of the Merger or any of the other transactions
contemplated by this Agreement, will contravene, conflict with or result in an
infringement on the ability of Parent or any of Parent's Subsidiaries (including
any of the Acquired Corporations) to own or use any item of Intellectual
Property. Except as set forth in Part 2.9(b) of the Company Disclosure
Schedule, each of the Acquired Corporations has taken reasonable precautions to
maintain and protect its respective rights in each item of Intellectual Property
that such Acquired Corporation owns or uses. Except as set forth in Part 2.9(b)
of the Company Disclosure Schedule, each of the Acquired Corporations has
secured valid written assignments from all consultants and employees who
contributed to the creation or development of any Intellectual Property owned by
any of the Acquired Corporations of the rights to such contributions, except
where the failure to secure such assignments has not had and would not
reasonably be expected to have a Material Adverse Effect on the Acquired
Corporations. No current or former officer, director, stockholder, employee,
consultant or independent contractor has any right, claim or interest in or with
respect to any Intellectual Property owned or used by any of the Acquired
Corporations as of the date hereof and material to the business of the Acquired
Corporations. Each Acquired Corporation caused backup copies of all Acquired
Corporation Source Code owned, licensed or used by such Acquired Corporation to
be made and maintains such backup copies pursuant to any agreement with a third
party contractor identified in Part 2.9(b) of the Company Disclosure Schedule.
(C) Part 2.9(c) of the Company Disclosure Schedule lists:
(I) each Issued Patent owned by any of the Acquired
Corporations as of the date hereof;
(II) each Patent Application owned by any of the Acquired
Corporations as of the date hereof;
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(III) each trademark registration, service mark
registration, copyright registration or mask work registration owned by any
of the Acquired Corporations as of the date hereof;
(IV) each application for a trademark registration,
service mark registration, copyright registration, mask work registration
owned by any of the Acquired Corporations as of the date hereof;
(V) each trade name, d.b.a., unregistered trademark or
unregistered service mark that is material to the operation of the current
business of any of the Acquired Corporations as of the date hereof;
(VI) each joint development agreement entered into since
January 1, 1996 relating to any Intellectual Property that is incorporated
into a material component of any product of any of the Acquired
Corporations; and
(VII) each license pursuant to which any exclusive rights
are granted.
The Corporation has delivered to Cooley Godward llp accurate and complete copies
of each of the items (as amended through the date of this Agreement) identified
in clauses "(i)" through "(iv)" and clauses "(vi)" and "(vii)" of this Section
2.9(c) and has made available to Parent accurate and complete copies of all
other written documentation evidencing valid ownership and prosecution (if
applicable) of each such item.
(D) With respect to each item of Intellectual Property that is
incorporated into any product of any of the Acquired Corporations or that is
otherwise material to the business of any of the Acquired Corporations (other
than "off the shelf" or other software which is widely available through regular
commercial distribution channels on standard terms and conditions, as modified
for the Company's operations), except as set forth in Part 2.9(d) of the Company
Disclosure Schedule and except for any item of Intellectual Property that is
licensed to any of the Acquired Corporations pursuant to a license agreement
that has been provided by the Company to Cooley Godward llp:
(I) one or more of the Acquired Corporations exclusively
own all right, title, and interest in and to such item, free and clear of
any Encumbrance (other than any rights licensed on a non-exclusive basis in
the ordinary course of business to distributors and customers of any of the
Acquired Corporations);
(II) such item is not subject to any Order;
(III) there is no outstanding option relating to such item
and no outstanding offer to grant an exclusive license with respect to such
item;
(IV) no Proceeding is pending or is threatened, nor has any
claim or demand been made, which challenges or challenged the legality,
validity,
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enforceability, use or exclusive ownership by any of the Acquired
Corporations of such item;
(V) each Issued Patent comprising or relating to such item
is, to the Knowledge of the Company, valid and subsisting; and
(VI) all maintenance and annuity fees have been fully paid
and all fees paid during prosecution and after issuance of any Patent
comprising or relating to such item have been paid in the correct entity
status amounts.
(E) Part 2.9(e) of the Company Disclosure Schedule lists each
material item of Intellectual Property that is owned by any Person (other than
the Acquired Corporations) and that any of the Acquired Corporations
incorporated or incorporates in any product of any of the Acquired Corporations
currently maintained, sold or licensed by any of the Acquired Corporations
pursuant to a license, sublicense or other Contract (other than any item of
Intellectual Property used by any of the Acquired Corporations and generally
available to the public), and all material royalty obligations of each of the
Acquired Corporations to any Person (including all royalty obligations of each
of the Acquired Corporations to Systematic Designs International, Inc. and Fast
Associates Pte. Ltd.). The Corporation has delivered to Parent accurate and
complete copies of each such license, sublicense and Contract (as amended
through the date of this Agreement). With respect to each item of Intellectual
Property required to be identified in Part 2.9(e) of the Company Disclosure
Schedule:
(I) to the Knowledge of the Company, any license,
sublicense or other Contract covering or relating to such item is legal,
valid, binding, enforceable and in full force and effect;
(II) none of the Acquired Corporations nor (to the
Knowledge of the Company) any other party to any license, sublicense or
other Contract covering or relating to such item is in breach of or default
under any such license, sublicense or other Contract, except for any such
breach or default that has not resulted in and would not reasonably be
expected to result in a Material Adverse Effect on the Acquired
Corporations, or has performed any act or omitted to perform any act which,
with notice or lapse of time or both, will become or result in a violation,
breach or default thereunder, except for any act or omission that has not
resulted in and would not reasonably be expected to result in a Material
Adverse Effect on the Acquired Corporations;
(III) no party to any license, sublicense or other Contract
covering or relating to such item has given notice of termination or
repudiated any material provision thereof;
(IV) such item is not subject to any Order; and
(V) to the Knowledge of the Company, no Proceeding is
pending or is being or has been threatened, nor has any claim or demand
been made, which challenges the legality, validity, enforceability or
ownership of such item.
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(F) To the Knowledge of the Company, except as set forth in Part
2.9(f) of the Company Disclosure Schedule, none of the Acquired Corporations has
interfered with, infringed upon or misappropriated any Intellectual Property
right of any other Person. To the Knowledge of the Company, except as set forth
in Part 2.9(f) of the Company Disclosure Schedule, since January 1, 1996, none
of the Acquired Corporations has received any complaint, claim, demand or notice
alleging any such interference, infringement or misappropriation, or that the
use by any of the Acquired Corporations of any Intellectual Property constitutes
unfair competition. To the Knowledge of the Company, no Person has interfered
with, infringed upon or misappropriated any Intellectual Property right owned or
used by any of the Acquired Corporations.
(G) To the Knowledge of the Company, except as set forth in Part
2.9(g) of the Company Disclosure Schedule, no current employee or consultant of
or to any of the Acquired Corporations is obligated under any Contract, or
subject to any Order or Legal Requirement, that would restrict in any material
respect the scope of such employee's or consultant's business activities for
Parent or for any of the Acquired Corporations.
(H) For purposes of this Section 2.9(h):
(I) "Software" means any computer program or other item of
software, including firmware.
(II) "Internally Developed Software" means any Software
developed or created by or for any of the Acquired Corporations (whether by
its own employees or by independent contractors or otherwise and whether
for resale, internal use or otherwise).
(III) "Internally Used Software" means any Software used by any
of the Acquired Corporations in its internal business operations (whether
such Software is Internally Developed Software or is licensed from a third
party).
(IV) "Third Party Distributed Software" means any Software,
other than Internally Developed Software, distributed, licensed,
maintained, or supported by any of the Acquired Corporations (whether as an
embedded component of any software product of any of the Acquired
Corporations or as a separate product or otherwise).
(V) "Third Party Layered Software" means any Software, other
than Internally Developed Software and Third Party Distributed Software,
used in conjunction with any software product of any of the Acquired
Corporations.
(VI) "Year 2000 Compliant" means, with respect to a computer or
Software, (i) the functions, calculations, and other computing processes of
the computer or Software (collectively, "Processes") perform in the same
manner and with the same accuracy, functionality, and data integrity
regardless of the date on which the Processes are actually performed and
regardless of the date input to the applicable
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computer, whether before, on, or after January 1, 2000, and without
interruption due to any date change or date data; (ii) the computer or
Software accepts, calculates, compares, sorts, extracts, sequences, and
otherwise processes date inputs and date values, and returns and displays
date values, in a consistent and correct manner regardless of the dates
used whether before, on, or after January 1, 2000; (iii) the computer or
Software accepts and responds to year input, if any, in a manner that
resolves any ambiguities as to century in a defined, predetermined, and
correct manner; (iv) the computer or Software stores and displays date
information in ways that are unambiguous as to the determination of the
century; and (v) leap years will be determined by the following standard
(A) if dividing the year by 4 yields an integer, it is a leap year, except
for years ending in 00, but (B) a year ending in 00 is a leap year if
dividing it by 400 yields an integer.
(VII) "Y2K Bug" means, with respect to a computer or Software,
any failure of such computer or Software to be Year 2000 Compliant.
To the Knowledge of the Company, except as set forth in Part 2.9(h)(i) of the
Company Disclosure Schedule, each computer that is owned or used by any of the
Acquired Corporations for its internal business operations is, and all
Internally Used Software are, Year 2000 Compliant. To the Knowledge of the
Company, except as set forth in Part 2.9(h)(ii) of the Company Disclosure
Schedule and except for any Y2K Bugs caused solely by one or more Y2K Bugs in
the Third Party Layered Software, all Internally Developed Software and all
Third Party Distributed Software are Year 2000 Compliant. Except as set forth
in Part 2.9(h)(iii) of the Company Disclosure Schedule, each of the Acquired
Corporations has conducted sufficient Year 2000 compliance testing for each
computer that is owned or used by any of the Acquired Corporations for its
internal business operations, all Internally Used Software, all Internally
Developed Software and all Third Party Distributed Software to be able to
determine whether such computer or Software is Year 2000 Compliant, and, with
respect to all Third Party Distributed Software, has obtained warranties or
other written assurances from the suppliers thereof to the effect that such
Software is Year 2000 Compliant.
(I) The Intellectual Property assets owned by or licensed to the
Acquired Corporations constitute all of the Intellectual Property assets
necessary to enable the Acquired Corporations to conduct their respective
businesses as such businesses are currently being conducted.
2.10 CONTRACTS.
(A) Part 2.10 of the Company Disclosure Schedule identifies each
Acquired Corporation Contract that constitutes a "Material Contract" as of the
date of this Agreement. (For purposes of this Agreement, each of the following
Contracts (to the extent that any of the Acquired Corporations has (or may have)
any liability or obligation thereunder or with respect thereto after the date of
this Agreement) shall be deemed to constitute a "Material Contract":
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(I) any Contract relating to the employment of, or the
performance of services by, any employee or consultant (other than any
offer letter provided to any employee of any of the Acquired Corporations
which provides for "at will" employment); any Contract pursuant to which
any of the Acquired Corporations is or may become obligated to make any
severance, termination or similar payment to any current or former employee
or director; and any Contract pursuant to which any of the Acquired
Corporations is or may become obligated to make any bonus or similar
payment (other than payments in respect of salary) in excess of $25,000 to
any current or former employee or director;
(II) any Contract (A) with any customer of any of the Acquired
Corporations for systems integration or similar services; or (B) with
respect to the distribution or marketing of any product of any of the
Acquired Corporations;
(III) any Contract pursuant to which any third party licenses to
any of the Acquired Corporations (or otherwise permits any of the Acquired
Corporations to use) any Intellectual Property that is incorporated as a
material component of any product of any of the Acquired Corporations or is
otherwise material to the business of any of the Acquired Corporations
(other than "off the shelf" or other software which is widely available
through regular commercial distribution channels on standard terms and
conditions, as modified for the Company's operations);
(IV) any factory automation Contract acquired from Systematic
Designs International, Inc. or Fast Associates Pte. Ltd.;
(V) any Contract which provides for indemnification of any
officer, director, employee or agent;
(VI) any Contract imposing any restriction on the right or
ability of any Acquired Corporation (A) to compete with any other Person,
(B) to acquire any material product or other asset or any services from any
other Person, (C) to solicit, hire or retain any Person as an employee,
consultant or independent contractor, (D) to develop, sell, supply,
distribute, offer, support or service any product or any technology or
other asset to or for any other Person, (E) to perform services for any
other Person, or (F) to transact business or deal in any other manner with
any other Person;
(VII) any Contract (A) relating to the acquisition, issuance,
voting, registration, sale or transfer of any securities, other than
pursuant to Company Options or the ESPP, (B) providing any Person with any
preemptive right, right of participation, right of maintenance or any
similar right with respect to any securities, or (C) providing any of the
Acquired Corporations with any right of first refusal with respect to, or
right to purchase or otherwise acquire, any securities;
(VIII) any Contract incorporating or relating to any guaranty,
any warranty or any indemnity or similar obligation, except for Contracts
entered into in the ordinary course of business;
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(IX) any Contract relating to any currency hedging;
(X) any Contract to which any Governmental Body is a party;
(XI) any Contract not otherwise identified in clause "(ix)" of
this sentence directly or indirectly benefiting any Governmental Body
(including any subcontract or other Contract between any Acquired
Corporation and any contractor or subcontractor to any Governmental Body),
except for Contracts entered into in the ordinary course of business for
the license, maintenance or service of products;
(XII) any Contract requiring that any of the Acquired
Corporations give any notice or provide any information to any Person prior
to considering or accepting any Acquisition Proposal or similar proposal,
or prior to entering into any discussions, agreement, arrangement or
understanding relating to any Acquisition Transaction or similar
transaction;
(XIII) any Contract that (A) contemplates or involves the
payment or delivery of cash or other consideration by any of the Acquired
Corporations in an amount or having a value in excess of $100,000 in the
aggregate, (B) contemplates or involves the payment or delivery of cash or
other consideration to any of the Acquired Corporations in an amount or
having a value in excess of $250,000 in the aggregate, or (C) contemplates
or involves the performance of services by any of the Acquired Corporations
having a value in excess of $250,000 in the aggregate; and
(XIV) any Contract (not otherwise identified in clauses "(i)"
through "(xiii)" of this sentence), if a breach of such Contract could
reasonably be expected to have a Material Adverse Effect on the Acquired
Corporations.
Without limiting the generality of the foregoing, Part 2.10 of the
Company Disclosure Schedule identifies each letter of intent, memorandum of
understanding and similar document relating to the Company's FAB300 software
project.
(B) The Company has delivered to Parent and to Cooley Godward LLP an
accurate and complete copy of (i) each Material Contract; (ii) each letter of
intent, memorandum of understanding and other agreement relating to the
Company's FAB300 software project; (iii) each Acquired Corporation Contract (to
the extent that any of the Acquired Corporations has (or may have) any liability
or obligation thereunder or with respect thereto after the date of this
Agreement) of the type referred to in Section 2.9; (iv) each Acquired
Corporation Contract (to the extent that any of the Acquired Corporations has
(or may have) any liability or obligation thereunder or with respect thereto
after the date of this Agreement) with any customer of any of the Acquired
Corporations (except for Acquired Corporation Contracts which are similar in all
material respects to the standard form of Software License Agreement and
Maintenance Agreement described in that certain document entitled "Negotiation
Guidelines - A 'Walk Through' of the Software License Agreement and Maintenance
Agreement Terms and Conditions," an accurate and complete copy of which has been
provided to Cooley Godward LLP); and (v) each other Acquired Corporation
Contract (not otherwise identified in clauses "(i)"
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through "(iv)" of this sentence) that is material to the business of any of the
Acquired Corporations.
(C) Each Acquired Corporation Contract is valid and in full force and
effect, and is enforceable in accordance with its terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) applicable rules of law governing specific performance,
injunctive relief and other equitable remedies.
(D) Except as set forth in Part 2.10 of the Company Disclosure
Schedule: (i) none of the Acquired Corporations has violated or breached, or
committed any default under, any Acquired Corporation Contract, except for
violations, breaches and defaults that have not had and would not reasonably be
expected to have a Material Adverse Effect on the Acquired Corporations; and, to
the Knowledge of the Company, no other Person has violated or breached, or
committed any default under, any Acquired Corporation Contract, except for
violations, breaches or defaults that have not had and would not reasonably be
expected to have a Material Adverse Effect on the Acquired Corporations; (ii) to
the Knowledge of the Company, no event has occurred, and no circumstance or
condition exists, that (with or without notice or lapse of time) will, or would
reasonably be expected to, (A) result in a violation or breach of any of the
provisions of any Acquired Corporation Contract, (B) give any Person the right
to declare a default or exercise any remedy under any Acquired Corporation
Contract, (C) give any Person the right to receive or require a rebate,
chargeback or penalty under any Acquired Corporation Contract, (D) give any
Person the right to accelerate the maturity or performance of any Acquired
Corporation Contract, (E) result in the disclosure, release or delivery of any
Acquired Corporation Source Code, or (F) give any Person the right to cancel,
terminate or modify any Acquired Corporation Contract, except in each such case
for defaults, acceleration rights, termination rights and other rights that have
not had and would not reasonably be expected to have a Material Adverse Effect
on the Acquired Corporations; and (iii) since January 1, 1996, none of the
Acquired Corporations has received any notice or other communication regarding
any actual or possible violation or breach of, or default under, any Acquired
Corporation Contract, except in each such case for defaults, acceleration
rights, termination rights and other rights that have not had and would not
reasonably be expected to have a Material Adverse Effect on the Acquired
Corporations.
(E) Without limiting the generality of the representations contained
in Section 2.10(d), (i) none of the Acquired Corporations has violated or
breached, or committed any default under, and no event has occurred, and no
circumstance or condition exists, that (with or without notice or lapse of time)
will, or would reasonably be expected to, result in a claim against any of the
Acquired Corporations under or pursuant to (A) that certain Asset Purchase
Agreement dated February 19, 1998, by and among the Company, Base Ten
Flowstream, Inc. and Base Ten Systems, Inc. (including under or pursuant to
Section 12 thereof), (B) that certain Asset Purchase Agreement dated July 31,
1997, by and among the Company, Fast Associates Pte., Ltd. and Ng Boon Thiong
(including under or pursuant to Section 2.4 thereof), or (C) that certain
Settlement Agreement dated January 30, 1998, by and among the Company,
Systematic Designs International, Inc. and Jen-Shih Jessi Niou; and (ii) to the
Knowledge of the Company, no other Person has violated or breached, or committed
any default under, and no event has
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occurred, and no circumstance or condition exists, that (with or without notice
or lapse of time) will, or would reasonably be expected to, result in a claim by
any of the Acquired Corporations under or pursuant to (A) that certain Asset
Purchase Agreement dated February 19, 1998, by and among the Company, Base Ten
Flowstream, Inc. and Base Ten Systems, Inc., (B) that certain Asset Purchase
Agreement dated July 31, 1997, by and among the Company, Fast Associates Pte.,
Ltd. and Ng Boon Thiong, or (C) that certain Settlement Agreement dated January
30, 1998, by and among the Company, Systematic Designs International, Inc. and
Jen-Shih Jessi Niou. None of the Acquired Corporations has any liability or
obligation under that certain Asset Purchase Agreement dated July 2, 1996, by
and among the Company, Consilium Taiwan, Inc., Systematic Designs International,
Inc. and Jen-Shih Jessi Niou.
2.11 SALE OF PRODUCTS; PERFORMANCE OF SERVICES
(A) The Company has delivered to Cooley Godward llp an accurate
and complete copy of the "bug list" as of September 30, 1998 with respect to
each product, system, program and software module of each of the Acquired
Corporations. Assuming the products, systems, programs and software modules of
the Acquired Corporations are used in the manner in which they are intended to
be used (including platform specifications and other product literature) and
were maintained in accordance with the Company's regular maintenance program,
none of the products, systems, programs or software modules of any of the
Acquired Corporations would reasonably be expected to (A) disrupt, disable, harm
or otherwise impede in any material respect the operation of a computer program
or a computer system or the equipment on which such code resides, or (B) damage
or destroy any data or files residing on a computer or computer system without
the consent of the user of such computer or computer system.
(B) To the Knowledge of the Company, all installation services,
programming services, repair services, maintenance services, support services,
training services, upgrade services and other services that have been performed
by the Acquired Corporations were performed properly and in substantial
conformity with the terms and requirements of all applicable warranties and
other Contracts and with all applicable Legal Requirements.
(C) Except as set forth in Part 2.11(c) of the Company
Disclosure Schedule, since January 1, 1996, no customer or other Person has
asserted or threatened to assert any claim against any of the Acquired
Corporations (i) under or based upon any warranty provided by or on behalf of
any of the Acquired Corporations, or (ii) based upon any services performed by
any of the Acquired Corporations.
2.12 LIABILITIES. None of the Acquired Corporations has any accrued,
contingent or other liabilities of any nature, either matured or unmatured,
except for: (a) liabilities identified as such in the "liabilities" column of
the Unaudited Interim Balance Sheet; (b) normal and recurring current
liabilities that have been incurred by the Acquired Corporations since July 31,
1998 in the ordinary course of business and consistent with past practices; (c)
liabilities described in Part 2.12 of the Company Disclosure Schedule; and (d)
liabilities that have not had, and would not reasonably be expected to have, a
Material Adverse Effect on the Acquired Corporations.
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2.13 COMPLIANCE WITH LEGAL REQUIREMENTS. Except as set forth in Part
2.13 of the Company Disclosure Schedule, each of the Acquired Corporations is,
and has at all times since January 1, 1996 been, in compliance with all
applicable Legal Requirements, except where the failure to comply with such
Legal Requirements has not had and would not reasonably be expected to have a
Material Adverse Effect on the Acquired Corporations. Except as set forth in
Part 2.13 of the Company Disclosure Schedule, since January 1, 1996, none of the
Acquired Corporations has received any notice or other communication from any
Governmental Body or other Person regarding any actual or possible violation of,
or failure to comply with, any Legal Requirement.
2.14 CERTAIN BUSINESS PRACTICES. None of the Acquired Corporations
nor (to the Knowledge of the Company) any director, officer, agent or employee
of any of the Acquired Corporations has (i) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns or violated any provision of the Foreign Corrupt Practices Act of
1977, as amended, or (iii) made any other unlawful payment.
2.15 GOVERNMENTAL AUTHORIZATIONS.
(A) The Acquired Corporations hold all Governmental
Authorizations necessary to enable the Acquired Corporations to conduct their
respective businesses in the manner in which such businesses are currently being
conducted, except where the failure to hold such Governmental Authorizations has
not had and would not reasonably be expected to have a Material Adverse Effect
on the Acquired Corporations. Each Acquired Corporation is, and at all times
since January 1, 1996 has been, in substantial compliance with the terms and
requirements of such Governmental Authorizations, except where the failure to be
in compliance with the terms and requirements of such Governmental
Authorizations has not had and would not reasonably be expected to have a
Material Adverse Effect on the Acquired Corporations. Since January 1, 1996,
none of the Acquired Corporations has received any notice or other communication
from any Governmental Body regarding (a) any actual or possible violation of or
failure to comply with any term or requirement of any material Governmental
Authorization, or (b) any actual or possible revocation, withdrawal, suspension,
cancellation, termination or modification of any material Governmental
Authorization.
(B) The Company has provided Parent with an accurate and
complete copy of the grant received by the Company from the National Institute
of Standards and Technology ("NIST"). None of the Acquired Corporations is the
beneficiary of any grant, incentive or subsidy other than NIST. Except as set
forth in Part 2.15(b) of the Company Disclosure Schedule, each of the Acquired
Corporations is in substantial compliance with all of the terms and requirements
of NIST. Except as set forth in Part 2.15(b) of the Company Disclosure Schedule,
neither the execution, delivery or performance of this Agreement, nor the
consummation of the Merger or any of the other transactions contemplated by this
Agreement, will (with or without notice or lapse of time) give any Person the
right to revoke, withdraw, suspend, cancel, terminate or modify, NIST.
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2.16 TAX MATTERS.
(A) Each Tax Return required to be filed by or on behalf of the
respective Acquired Corporations with any Governmental Body with respect to any
taxable period ending on or before the Closing Date (the "Acquired Corporation
Returns") (i) has been or will be filed on or before the applicable due date, as
extended by such Governmental Body, and (ii) has been, or will be when filed,
prepared in all material respects in compliance with all applicable Legal
Requirements. All amounts shown on the Acquired Corporation Returns to be due on
or before the Closing Date have been or will be paid on or before the Closing
Date.
(B) Except as set forth in Part 2.16(b) of the Company
Disclosure Schedule, the Unaudited Interim Balance Sheet fully accrues all
actual and contingent liabilities for Taxes with respect to all periods through
July 31, 1998 in accordance with generally accepted accounting principles. Since
July 31, 1998, none of the Acquired Corporations has incurred any liability for
any Tax other than in the ordinary course of its business.
(C) Except as set forth in Part 2.16(c) of the Company
Disclosure Schedule, since January 1, 1993, no Acquired Corporation Return has
been audited by any Governmental Body. No extension or waiver of the limitation
period applicable to any of the Acquired Corporation Returns has been granted
(by the Company or any other Person), and no such extension or waiver has been
requested from any Acquired Corporation.
(D) Except as set forth in Part 2.16(d) of the Company
Disclosure Schedule, no claim or Legal Proceeding is pending or, to the
Knowledge of the Company, has been threatened against or with respect to any
Acquired Corporation in respect of any material Tax. There are no unsatisfied
liabilities for material Taxes (including liabilities for interest, additions to
tax and penalties thereon and related expenses) with respect to any notice of
deficiency or similar document received by any Acquired Corporation with respect
to any material Tax (other than liabilities for Taxes asserted under any such
notice of deficiency or similar document which are being contested in good faith
by the Acquired Corporations and with respect to which adequate reserves for
payment have been established on the Unaudited Interim Balance Sheet). There are
no liens for material Taxes upon any of the assets of any of the Acquired
Corporations except liens for current Taxes not yet due and payable. None of the
Acquired Corporations has entered into or become bound by any agreement or
consent pursuant to Section 341(f) of the Code (or any comparable provision of
state or foreign Tax laws). None of the Acquired Corporations has been, and none
of the Acquired Corporations will be, required to include any adjustment in
taxable income for any tax period (or portion thereof) pursuant to Section 481
or 263A of the Code (or any comparable provision under state or foreign Tax
laws) as a result of transactions or events occurring, or accounting methods
employed, prior to the Closing.
(E) There is no agreement, plan, arrangement or other Contract
covering any employee or independent contractor or former employee or
independent contractor of any of the Acquired Corporations that, considered
individually or considered collectively with any other such Contracts, will, or
could reasonably be expected to, give rise directly or indirectly
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to the payment of any amount that would not be deductible pursuant to Section
280G or Section 162 of the Code (or any comparable provision under state or
foreign Tax laws). None of the Acquired Corporations is, or has ever been, a
party to or bound by any tax indemnity agreement, tax sharing agreement, tax
allocation agreement or similar Contract.
2.17 EMPLOYEE AND LABOR MATTERS; BENEFIT PLANS.
(A) Part 2.17(a) of the Company Disclosure Schedule identifies
each salary, bonus, deferred compensation, incentive compensation, stock
purchase, stock option, severance pay, termination pay, hospitalization,
medical, insurance, supplemental unemployment benefits, profit-sharing, pension
or retirement plan, program or material agreement maintained, sponsored,
contributed to or required to be contributed to by any of the Acquired
Corporations for the benefit of any current or former employee of any of the
Acquired Corporations (including any such plan, program or material agreement
maintained, sponsored, contributed to or required to be contributed to by any of
the Acquired Corporations for the benefit or any current or former employee
located in Korea, Singapore, Taiwan or India. (All plans, programs and material
agreements of the type referred to in the prior sentence are referred to in this
Agreement as the "Plans.")
(B) Except as set forth in Part 2.17(a) of the Company
Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or
contributes to, and none of the Acquired Corporations has since January 1, 1996
maintained, sponsored or contributed to, any employee pension benefit plan (as
defined in Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) or any similar pension benefit plan under the laws of any
foreign jurisdiction (including Korea, Singapore, Taiwan or India), whether or
not excluded from coverage under specific Titles or Merger Subtitles of ERISA),
for the benefit of any current or former employee or director of any of the
Acquired Corporations (a "Pension Plan").
(C) Except as set forth in Part 2.17(a) of the Company
Disclosure Schedule, none of the Acquired Corporations maintains, sponsors or
contributes to any: (i) employee welfare benefit plan (as defined in Section
3(1) of ERISA) or any similar welfare benefit plan under the laws of any foreign
jurisdiction (including Korea, Singapore, Taiwan or India), whether or not
excluded from coverage under specific Titles or Merger Subtitles of ERISA, for
the benefit of any current or former employee or director of any of the Acquired
Corporations (a "Welfare Plan"), or (ii) self-funded medical, dental or other
similar Plan. None of the Plans identified in the Company Disclosure Schedule is
a multiemployer plan (within the meaning of Section 3(37) of ERISA).
(D) With respect to each Plan, the Company has delivered to
Parent: (i) an accurate and complete copy of such Plan (including all amendments
thereto); (ii) an accurate and complete copy of the annual report, if required
under ERISA, with respect to such Plan for each of the last two years; (iii) an
accurate and complete copy of the most recent summary plan description, together
with each Summary of Material Modifications, if required under ERISA, with
respect to such Plan, (iv) if such Plan is funded through a trust or any third
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party funding vehicle, an accurate and complete copy of the trust or other
funding agreement (including all amendments thereto) and accurate and complete
copies the most recent financial statements thereof; (v) accurate and complete
copies of all Contracts relating to such Plan, including service provider
agreements, insurance contracts, minimum premium contracts, stop-loss
agreements, investment management agreements, subscription and participation
agreements and recordkeeping agreements; and (vi) an accurate and complete copy
of the most recent opinion letter received from the Internal Revenue Service
with respect to such Plan (if such Plan is intended to be qualified under
Section 401(a) of the Code).
(E) None of the Acquired Corporations is or has ever been
required to be treated as a single employer with any other Person under Section
4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the
Acquired Corporations has ever been a member of an "affiliated service group"
within the meaning of Section 414(m) of the Code. None of the Acquired
Corporations has ever made a complete or partial withdrawal from a multiemployer
plan, as such term is defined in Section 3(37) of ERISA, resulting in
"withdrawal liability," as such term is defined in Section 4201 of ERISA
(without regard to any subsequent reduction or waiver of such liability under
either Section 4207 or 4208 of ERISA).
(F) None of the Acquired Corporations has any plan or
commitment to create any Welfare Plan or any Pension Plan, or to modify or
change any existing Welfare Plan or Pension Plan (other than to comply with
applicable law) in a manner that would affect any current or former employee or
director of any of the Acquired Corporations.
(G) No Plan provides death, medical or health benefits (whether
or not insured) with respect to any current or former employee or director of
any of the Acquired Corporations after any termination of service of such
employee or director (other than (i) benefit coverage mandated by applicable
law, including coverage provided pursuant to Section 4980B of the Code, (ii)
deferred compensation benefits accrued as liabilities on the Unaudited Interim
Balance Sheet, and (iii) benefits the full cost of which are borne by current or
former employees or directors of any of the Acquired Corporations (or their
beneficiaries)).
(H) Except as set forth in Part 2.17(h) of the Company
Disclosure Schedule, with respect to any Plan constituting a group health plan
within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section
4980B of the Code ("COBRA") have been complied with in all material respects.
(I) Except as set forth in Part 2.17(i) of the Company
Disclosure Schedule, to the Knowledge of the Company, each of the Plans has been
operated and administered in all material respects in accordance with applicable
Legal Requirements, including ERISA and the Code, each Legal Requirement
pursuant to which any of the Acquired Corporations is required to establish any
reserve or make any contribution for the benefit of any current or former
employee located in Korea, Singapore, Taiwan, India or any other foreign
jurisdiction and each other applicable foreign Legal Requirement.
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(J) Each of the Plans intended to be qualified under Section
401(a) of the Code has received a favorable opinion letter from the Internal
Revenue Service, and the Company is not aware of any reason why any such
determination letter could be revoked.
(K) Except pursuant to the Change of Control Agreements or as
set forth in Part 2.17(k) of the Company Disclosure Schedule, neither the
execution, delivery or performance of this Agreement, nor the consummation of
the Merger or any of the other transactions contemplated by this Agreement, will
result in any bonus, golden parachute, severance or other payment or obligation
to any current or former employee or director of any of the Acquired
Corporations (whether or not under any Plan), or materially increase the
benefits payable or provided under any Plan, or result in any acceleration of
the time of payment, provision or vesting of any such benefits. Without limiting
the generality of the foregoing (and except pursuant to the Change of Control
Agreements or as set forth in Part 2.17(k) of the Company Disclosure Schedule),
the consummation of the Merger will not result in the acceleration of vesting of
any unvested Company Options.
(L) Part 2.17(l) of the Company Disclosure Schedule identifies
each employee of each of the Acquired Corporations as of the date of this
Agreement, and correctly reflects, in all material respects, the current salary
and any other compensation payable to such employee (including compensation
payable pursuant to bonus, deferred compensation or commission arrangements),
such employee's employer, date of hire and position and the principal office of
such employee. None of the Acquired Corporations is a party to any collective
bargaining contract or other Contract with a labor union involving any of its
employees. All of the employees of the Acquired Corporations are "at will"
employees.
(M) Part 2.17(m) of the Company Disclosure Schedule identifies
each employee of any of the Acquired Corporations who is not fully available to
perform work because of disability or other leave and sets forth the basis of
such disability (to the extent known by the Company) or leave and the
anticipated date of such employee's return to full service.
(N) Each of the Acquired Corporations is in compliance in all
material respects with all applicable Legal Requirements and Contracts relating
to employment, employment practices, wages, bonuses and terms and conditions of
employment, including employee compensation matters.
(O) Each of the Acquired Corporations has good labor relations,
and the Company has no knowledge of any facts indicating that (i) the
consummation of the Merger or any of the other transactions contemplated by this
Agreement will have a material adverse effect on the labor relations of any of
the Acquired Corporations, or (ii) any of the employees of any of the Acquired
Corporations intends to terminate his or her employment with such Acquired
Corporation.
2.18 ENVIRONMENTAL MATTERS. Each of the Acquired Corporations is in
compliance in all material respects with all applicable Environmental Laws,
which compliance includes the possession by each of the Acquired Corporations of
all permits and other Governmental Authorizations required of them under
applicable Environmental Laws, and
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compliance in all material respects with the terms and conditions thereof. To
the Knowledge of the Company, since January 1, 1996, none of the Acquired
Corporations has received any notice or other communication (in writing or
otherwise), whether from a Governmental Body, citizens group, employee or
otherwise, that alleges that any of the Acquired Corporations is not in
compliance in all material respects with any Environmental Law. To the Knowledge
of the Company, no current or prior owner of any property leased by any of the
Acquired Corporations has received any notice or other communication (in writing
or otherwise), whether from a Government Body, citizens group, employee or
otherwise, that alleges that such current or prior owner or any of the Acquired
Corporations is not in compliance in all material respects with any
Environmental Law. To the Knowledge of the Company (a) all property that is
leased to or used by the Company, and all surface water, groundwater and soil
associated with such property is free of any material environmental
contamination of any nature, (b) none of the property leased to or used by any
of the Acquired Corporations presently contains any underground storage tanks,
asbestos, equipment using PCBs or underground injection wells, and (c) none of
the property leased to or used by any of the Acquired Corporations presently
contains any septic tanks in which process wastewater or any Materials of
Environmental Concern have been disposed. To the Knowledge of the Company, no
Acquired Corporation has sent or transported, or arranged to send or transport,
any Materials of Environmental Concern to a site that, pursuant to any
applicable Environmental Law (i) has been placed on the "National Priorities
List" of hazardous waste sites or any similar state list, (ii) is otherwise
designated or identified as a potential site for remediation, cleanup, closure
or other environmental remedial activity, or (iii) is subject to a Legal
Requirement to take "removal" or "remedial' action as detailed in any applicable
Environmental Law or to make payment for the cost of cleaning up the site. (For
purposes of this Section 2.18: (A) "Environmental Law" means any federal,
state, local or foreign Legal Requirement relating to pollution or protection of
human health from Materials of Environmental Concern or protection of the
environment (including ambient air, surface water, ground water, land surface or
subsurface strata), including any law or regulation relating to emissions,
discharges, releases or threatened releases of Materials of Environmental
Concern, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Materials of
Environmental Concern; and (B) "Materials of Environmental Concern" means
chemicals, pollutants, contaminants, wastes, toxic substances, petroleum and
petroleum products and any other substance that is regulated by any Governmental
Body with respect to the environment.)
2.19 INSURANCE. The Company has delivered to Parent a copy of all
material insurance policies and all material self insurance programs and
arrangements relating to the business, assets and operations of the Acquired
Corporations. Except as set forth in Part 2.19 of the Company Disclosure
Schedule, each of such insurance policies is in full force and effect. Since
January 1, 1996, none of the Acquired Corporations has received any notice or
other communication regarding any actual or possible (a) cancellation or
invalidation of any insurance policy, (b) refusal of any coverage or rejection
of any material claim under any insurance policy, or (c) material adjustment in
the amount of the premiums payable with respect to any insurance policy. Except
as set forth in Part 2.19 of the Company Disclosure Schedule, there is no
pending workers' compensation or other claim under or based upon any insurance
policy of any of the Acquired Corporations.
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2.20 TRANSACTIONS WITH AFFILIATES. Except as set forth in the
Company SEC Reports, since the date of the Company's last proxy statement filed
with the SEC, no event has occurred that would be required to be reported by the
Company pursuant to Item 404 of Regulation S-K promulgated by the SEC. Part 2.20
of the Company Disclosure Schedule identifies each person who is (or who may be
deemed to be) an "affiliate" (as that term is used in Rule 145 under the
Securities Act) of the Company as of the date of this Agreement.
2.21 LEGAL PROCEEDINGS; ORDERS.
(A) There is no pending Legal Proceeding, and (to the Knowledge
of the Company) no Person has threatened to commence any Legal Proceeding: (i)
that involves any of the Acquired Corporations or any of the assets owned or
used by any of the Acquired Corporations and that, if adversely determined,
would reasonably be expected to have a Material Adverse Effect on the Acquired
Corporations; or (ii) that challenges, or that may have the effect of
preventing, delaying, making illegal or otherwise interfering with, the Merger
or any of the other transactions contemplated by this Agreement. To the
Knowledge of the Company, no event has occurred, and no claim, dispute or other
condition or circumstance exists, that would reasonably be expected to, give
rise to or serve as a basis for the commencement of any such Legal Proceeding.
(B) There is no material order, writ, injunction, judgment or
decree to which any of the Acquired Corporations, or any of the assets owned or
used by any of the Acquired Corporations, is subject. To the Knowledge of the
Company, no officer or key employee of any of the Acquired Corporations is
subject to any order, writ, injunction, judgment or decree that prohibits such
officer or other key employee from engaging in or continuing any conduct,
activity or practice relating to the business of any of the Acquired
Corporations.
2.22 AUTHORITY; INAPPLICABILITY OF ANTI-TAKEOVER STATUTES; BINDING
NATURE OF AGREEMENT. The Company has the absolute and unrestricted right, power
and authority to enter into and to perform its obligations under this Agreement.
The board of directors of the Company (at a meeting duly called and held on
October 12, 1998) has (a) determined (pursuant to a unanimous vote of all
members of the board of directors of the Company) that the Merger is advisable
and fair and in the best interests of the Company and its stockholders, (b)
authorized and approved (pursuant to a unanimous vote of all members of the
board of directors of the Company) the execution, delivery and performance of
this Agreement by the Company and approved (pursuant to a unanimous vote of all
members of the board of directors of the Company) the Merger, (c) recommended
(pursuant to a unanimous vote of all members of the board of directors of the
Company) the approval of this Agreement and the Merger by the holders of Company
Common Stock and directed that this Agreement and the Merger be submitted for
consideration by the Company's stockholders at the Company Stockholders' Meeting
(as defined in Section 5.2), and (d) adopted (pursuant to a unanimous vote of
all members of the board of directors of the Company) a resolution having the
effect of causing the Company not to be subject to any state takeover law or
similar Legal Requirement that might otherwise apply to the Merger or any of the
other transactions contemplated by this Agreement. This Agreement constitutes
the legal, valid and binding obligation of the Company, enforceable
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against the Company in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
2.23 SECTION 203 OF THE DGCL NOT APPLICABLE. As of the date hereof
and at all times on or prior to the Effective Time, the restrictions applicable
to business combinations contained in Section 203 of the DGCL are, and will be,
inapplicable to the execution, delivery and performance of this Agreement and to
the consummation of the Merger and the other transactions contemplated by this
Agreement. Prior to the execution of those certain Voting Agreements of even
date herewith between Parent and each of the Persons identified in Part 2.23 of
the Company Disclosure Schedule, the Board of Directors of the Company approved
said Voting Agreements and the transactions contemplated thereby.
2.24 INAPPLICABILITY OF SECTION 2115 OF CALIFORNIA CORPORATIONS CODE.
The Company is not subject to Section 2115 of the California Corporations Code.
2.25 NO EXISTING DISCUSSIONS. As of the date of this Agreement (and
since the date of the "no-shop" agreement dated September 17, 1998 executed by
the Company), none of the Acquired Corporations has engaged, directly or
indirectly, in any discussions or negotiations with any other Person with
respect to any Acquisition Proposal.
2.26 ACCOUNTING MATTERS. To the Knowledge of the Company, neither
the Company nor any affiliate (as that term is used in Rule 145 under the
Securities Act) of any of the Acquired Corporations has taken or agreed to take,
or plans to take, any action that could prevent Parent from accounting for the
Merger as a "pooling of interests" in accordance with generally accepted
accounting principles, Accounting Principles Board Opinion No. 16 and all
published rules, regulations and policies of the SEC. Arthur Andersen LLP has
confirmed in a letter the date of this Agreement and addressed to the Company,
an executed copy of which has been delivered to Parent and
PricewaterhouseCoopers LLP, that (subject to the qualifications contained in
such letter) Arthur Andersen LLP's concurrence with the Company's management's
conclusion that the Company is a "poolable entity" in accordance with generally
accepted accounting principles, Accounting Principles Board Opinion No. 16 and
all published rules, regulations and policies of the SEC.
2.27 VOTE REQUIRED. The affirmative vote of the holders of a
majority of the shares of Company Common Stock outstanding on the record date
for the Company Stockholders' Meeting (the "Required Company Stockholder Vote")
is the only vote of the holders of any class or series of the Company's capital
stock necessary to approve this Agreement, the Merger and the other transactions
contemplated by this Agreement. Without limiting the generality of the
foregoing, no vote of the holders of Company Preferred Stock is necessary to
approve this Agreement, the Merger or any of the other transactions contemplated
by this Agreement.
2.28 NON-CONTRAVENTION; CONSENTS. Neither (1) the execution,
delivery or performance of this Agreement by the Company, nor (2) the
consummation of the Merger or any
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of the other transactions contemplated by this Agreement by the Company, will
(with or without notice or lapse of time):
(A) contravene, conflict with or result in a violation of (i)
any of the provisions of the certificate of incorporation, bylaws or other
charter or organizational documents of any of the Acquired Corporations, or
(ii) any resolution adopted by the stockholders, the board of directors or
any committee of the board of directors of any of the Acquired
Corporations;
(B) contravene, conflict with or result in a violation of any
Legal Requirement, or give any Governmental Body or other Person the right
to challenge the Merger or any of the other transactions contemplated by
this Agreement or to exercise any remedy or obtain any relief under any
order, writ, injunction, judgment or decree to which any of the Acquired
Corporations, or any of the assets owned or used by any of the Acquired
Corporations, is subject;
(C) contravene, conflict with or result in a violation of any
of the terms or requirements of, or give any Governmental Body the right to
revoke, withdraw, suspend, cancel, terminate or modify, any Governmental
Authorization that is held by any of the Acquired Corporations or that
otherwise relates to the business of any of the Acquired Corporations or to
any of the assets owned or used by any of the Acquired Corporations;
(D) contravene, conflict with or result in a material violation
or breach of, or result in a material default under, any provision of any
Acquired Corporation Contract of the type referred to in Section 2.10(a),
or give any Person the right to (i) declare a default or exercise any
remedy under any such Acquired Corporation Contract, (ii) accelerate the
maturity or performance of any such Acquired Corporation Contract, or (iii)
cancel, terminate or modify any term of such Acquired Corporation Contract;
or
(E) result in the imposition or creation of any Encumbrance
upon or with respect to any asset owned or used by any of the Acquired
Corporations (except for minor liens that will not, in any case or in the
aggregate, materially detract from the value of the assets subject thereto
or materially impair the operations of any of the Acquired Corporations).
Except as may be required by the Exchange Act, the DGCL, the HSR Act, the GWB
and the NASD Bylaws (as they relate to the Form S-4 Registration Statement and
the Prospectus/Proxy Statement) and except as set forth in Part 2.28 of the
Company Disclosure Schedule, none of the Acquired Corporations was, is or will
be required to make any filing with or give any notice to, or to obtain any
Consent from, any Person in connection with (x) the execution, delivery or
performance of this Agreement or any of the other agreements referred to in this
Agreement, or (y) the consummation of the Merger or any of the other
transactions contemplated by this Agreement.
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2.29 FAIRNESS OPINION. The Company's board of directors has received
the written opinion of Broadview International LLC, financial advisor to the
Company, dated the date of this Agreement, to the effect that the consideration
to be received by the stockholders of the Company in the Merger is fair to the
stockholders of the Company from a financial point of view.
2.30 FINANCIAL ADVISOR. Except for Broadview International LLC, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the Merger or any of the other
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of any of the Acquired Corporations. The total of all fees,
commissions and other amounts that have been paid by the Company to Broadview
International LLC and all fees, commissions and other amounts that may become
payable to Broadview International LLC by the Company if the Merger is
consummated will not exceed $150,000, plus reasonable expenses that have been or
may be incurred by Broadview International LLC pursuant to its engagement by the
Company; PROVIDED, HOWEVER, that if (a) an Acquisition Proposal is made, and (b)
the Company engages Broadview International LLC to advise the Company with
respect to such Acquisition Proposal, the Company may agree to pay additional
fees, commissions and other amounts to Broadview International LLC (in which
case, the Company will promptly advise Parent of the amount of such fees,
commissions and other amounts). The Company has furnished to Parent accurate and
complete copies of all agreements under which any such fees, commissions or
other amounts have been paid to and all indemnification and other agreements
related to the engagement of Broadview International LLC.
2.31 FULL DISCLOSURE. None of the information supplied or to be
supplied by or on behalf of the Company for inclusion or incorporation by
reference in the Form S-4 Registration Statement will, at the time the Form S-4
Registration Statement becomes effective under the Securities Act, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they are made, not misleading. None
of the information supplied or to be supplied by or on behalf of the Company for
inclusion or incorporation by reference in the Prospectus/Proxy Statement will,
at the time the Prospectus/Proxy Statement is mailed to the stockholders of the
Company or at the time of the Company Stockholders' Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading. The
Prospectus/Proxy Statement will comply as to form in all material respects with
the provisions of the Exchange Act and the rules and regulations promulgated by
the SEC thereunder, except that no representation or warranty is made by the
Company with respect to statements made or incorporated by reference therein
based on information supplied by Parent for inclusion or incorporation by
reference in the Prospectus/Proxy Statement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub represent and warrant to the Company as follows:
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3.1 ORGANIZATION, STANDING AND POWER. Each of Parent and Merger Sub
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all necessary power and authority: (a) to
conduct its business in the manner in which its business is currently being
conducted; (b) to own and use its assets in the manner in which its assets are
currently owned and used; and (c) to perform its obligations under all Contracts
by which it is bound. Each of Parent and Merger Sub is duly qualified to do
business as a foreign corporation, and is in good standing, under the laws of
all jurisdictions where the nature of its business requires such qualification
and where the failure to be so qualified would have a Material Adverse Effect on
Parent.
3.2 SEC FILINGS; FINANCIAL STATEMENTS.
(A) Parent has delivered or made available to the Company
(including through the SEC EDGAR system) accurate and complete copies (excluding
copies of exhibits) of each report, registration statement and definitive proxy
statement filed by Parent with the SEC between October 26, 1997 and the date of
this Agreement (the "Parent SEC Documents"). Since October 26, 1997, all
statements, reports, schedules, forms and other documents required to have been
filed by Parent with the SEC have been so filed. As of the time it was filed
with the SEC (or, if amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing): (i) each of the Parent SEC
Documents complied in all material respects with the applicable requirements of
the Securities Act or the Exchange Act (as the case may be); and (ii) none of
the Parent SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(B) The consolidated financial statements contained in the
Parent SEC Documents: (i) complied as to form in all material respects with the
published rules and regulations of the SEC applicable thereto; (ii) were
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods covered (except as may be indicated in
the notes to such financial statements and, in the case of unaudited statements,
as permitted by Form 10-Q of the SEC, and except that unaudited financial
statements may not contain footnotes and are subject to year-end audit
adjustments); and (iii) fairly present the consolidated financial position of
Parent and its subsidiaries as of the respective dates thereof and the
consolidated results of operations of Parent and its subsidiaries for the
periods covered thereby.
3.3 DISCLOSURE. None of the information supplied or to be supplied
by or on behalf of Parent for inclusion in the Form S-4 Registration Statement
will, at the time the Form S-4 Registration Statement becomes effective under
the Securities Act, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
are made, not misleading. None of the information supplied or to be supplied by
or on behalf of Parent for inclusion or incorporation by reference in the
Prospectus/Proxy Statement will, at the time the Prospectus/Proxy Statement is
mailed to the stockholders of the Company or at the time of the Company
Stockholders' Meeting, contain any untrue statement of a material
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fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading. The Prospectus/Proxy
Statement will comply as to form in all material respects with the provisions of
the Exchange Act and the rules and regulations promulgated by the SEC
thereunder, except that no representation or warranty is made by Parent with
respect to statements made or incorporated by reference therein based on
information supplied by the Company for inclusion or incorporation by reference
in the Prospectus/Proxy Statement.
3.4 AUTHORITY; BINDING NATURE OF AGREEMENT. Parent and Merger Sub
have the absolute and unrestricted right, power and authority to perform their
obligations under this Agreement; and the execution, delivery and performance by
Parent and Merger Sub of this Agreement have been duly authorized by all
necessary action on the part of Parent and Merger Sub and their respective
boards of directors. This Agreement constitutes the legal, valid and binding
obligation of Parent and Merger Sub, enforceable against them in accordance with
its terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
3.5 NO VOTE REQUIRED. No vote of the holders of Parent Common Stock
is required to authorize the Merger.
3.6 NON-CONTRAVENTION; CONSENTS. Neither the execution and delivery
of this Agreement by Parent and Merger Sub nor the consummation by Parent and
Merger Sub of the Merger will (a) conflict with or result in any breach of any
provision of the certificate of incorporation or bylaws of Parent or the
certificate of incorporation or bylaws of Merger Sub, (b) result in a default by
Parent or Merger Sub under any Contract to which Parent or Merger Sub is a
party, except for any default which has not had and will not have a Material
Adverse Effect on Parent, or (c) result in a violation by Parent or Merger Sub
of any order, writ, injunction, judgment or decree to which Parent or Merger Sub
is subject, except for any violation which has not had and will not have a
Material Adverse Effect on Parent. Except as may be required by the Securities
Act, the Exchange Act, state securities or "blue sky" laws, the DGCL, the HSR
Act and the NASD Bylaws (as they relate to the S-4 Registration Statement and
the Prospectus/Proxy Statement), Parent is not and will not be required to make
any filing with or give any notice to, or to obtain any Consent from, any Person
in connection with the execution, delivery or performance of this Agreement or
the consummation of the Merger.
3.7 VALID ISSUANCE. The Parent Common Stock to be issued in the
Merger will, when issued in accordance with the provisions of this Agreement, be
validly issued, fully paid and nonassessable.
3.8 ACCOUNTING MATTERS. To the knowledge of Parent, neither Parent
nor any of its affiliates has taken or agreed to, or plans to, take any action
that would prevent Parent from accounting for the Merger as a "pooling of
interests" in accordance with generally accepted accounting principles,
Accounting Principles Board Opinion No. 16 and all published rules, regulations
and policies of the SEC. Parent has received a letter dated the date of this
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Agreement, from PricewaterhouseCoopers LLP, a copy of which has been delivered
to the Company, regarding PricewaterhouseCoopers LLP's concurrence with Parent's
management's conclusion (subject to the qualifications contained in such letter)
that the Merger should be treated as a "pooling of interests" in accordance with
generally accepted accounting principles, Accounting Principles Board Opinion
No. 16 and all published rules, regulations and policies of the SEC.
SECTION 4. CERTAIN COVENANTS OF THE COMPANY
4.1 ACCESS AND INVESTIGATION. During the period from the date of
this Agreement through the Effective Time (the "Pre-Closing Period"), the
Company shall, and shall cause the respective Representatives of the Acquired
Corporations to: (a) provide Parent and Parent's Representatives with reasonable
access to the Acquired Corporations' Representatives, personnel and assets and
to all existing books, records, Tax Returns, work papers and other documents and
information relating to the Acquired Corporations; and (b) provide Parent and
Parent's Representatives with such copies of the existing books, records, Tax
Returns, work papers and other documents and information relating to the
Acquired Corporations, and with such additional financial, operating and other
data and information regarding the Acquired Corporations, as Parent may
reasonably request. Without limiting the generality of the foregoing, during the
Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(I) all material operating and financial reports
prepared by the Company and its Subsidiaries for the Company's senior
management, including (A) copies of the unaudited quarterly consolidated
balance sheets of the Acquired Corporations and the related unaudited
quarterly consolidated statements of operations, statements of
stockholders' equity and statements of cash flows and (B) copies of any
sales forecasts, development plans and hiring reports prepared for the
Company's senior management;
(II) any written materials or communications sent by
or on behalf of the Company to its stockholders;
(III) any notice, report or other document (A) filed
with or sent to NIST, or (B) filed with or sent to any Governmental Body in
connection with the Merger or any of the other transactions contemplated by
this Agreement; and
(IV) any material notice, report or other document
received by any of the Acquired Corporations from any Governmental Body.
4.2 OPERATION OF THE COMPANY'S BUSINESS.
(A) During the Pre-Closing Period: (i) the Company shall
ensure that each of the Acquired Corporations conducts its business and
operations (A) in the ordinary course and in accordance with past practices and
(B) in substantial compliance with all applicable Legal Requirements and the
material requirements of all Acquired Corporation Contracts of the type referred
to in Section 2.10(a); (ii) the Company shall use all reasonable
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efforts to ensure that each of the Acquired Corporations preserves intact its
current business organization, keeps available the services of its current
officers and other employees and maintains its relations and goodwill with all
suppliers, customers, landlords, creditors, licensors, licensees, employees and
other Persons having business relationships with the respective Acquired
Corporations; and (iii) the Company shall keep in full force or renew all
insurance policies referred to in Section 2.19.
(B) During the Pre-Closing Period, the Company shall not
(without the prior written consent of Parent), and shall not permit any of the
other Acquired Corporations to:
(I) declare, accrue, set aside or pay any dividend
(other than in accordance with the Company's Certificate of Designation of
Series A Convertible Preferred Stock) or make any other distribution in
respect of any shares of capital stock, or repurchase, redeem or otherwise
reacquire any shares of capital stock or other securities;
(II) sell, issue, grant or authorize the issuance or
grant of (A) any capital stock or other security, (B) any option, call,
warrant or right to acquire any capital stock or other security, or (C) any
instrument convertible into or exchangeable for any capital stock or other
security (except that (1) the Company may issue shares of Company Common
Stock (x) upon the valid exercise of Company Options or Company Warrants
outstanding as of the date of this Agreement, (y) pursuant to the ESPP, or
(z) upon the valid conversion of shares of Company Preferred Stock
outstanding as of the date of this Agreement, and (2) the Company may, in
the ordinary course of business and consistent with past practices, grant
options under its stock option plans to purchase no more than a total of
100,000 shares of Company Common Stock to employees of the Company);
(III) amend or waive any of its rights under, or
accelerate the vesting under, any provision of any of the Company's stock
option plans, any provision of any agreement evidencing any outstanding
stock option or any restricted stock purchase agreement, or otherwise
modify any of the terms of any outstanding option, warrant or other
security or any related Contract;
(IV) amend or permit the adoption of any amendment to
its certificate of incorporation or bylaws or other charter or
organizational documents, or effect or become a party to any merger,
consolidation, amalgamation, share exchange, business combination,
recapitalization, reclassification of shares, stock split, division or
subdivision of shares, reverse stock split, consolidation of shares or
similar transaction;
(V) form any Subsidiary or acquire any equity
interest or other interest in any other Entity;
(VI) make any capital expenditure (except that the
Acquired Corporations may make capital expenditures in the ordinary course
of business and consistent with past practices that, when added to all
other capital expenditures made on
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behalf of the Acquired Corporations during the Pre-Closing Period, do not
exceed $250,000 in the aggregate);
(VII) enter into or become bound by, or permit any of
the assets owned or used by it to become bound by (A) any Contract with any
semiconductor equipment manufacturer; or (B) any Contract of the type
referred to in clauses "(i)," "(ii)" and "(v)" through "(xiv)" of Section
2.10(a) (other than licenses of third party software for FAB300 and
Contracts with the parties referred to in Part 4.2(b)(vii) of the Company
Disclosure Schedule);
(VIII) amend or terminate, or waive or exercise any
material right or remedy under, any Material Contract, other than in the
ordinary course of business consistent with past practices;
(IX) acquire, lease or license any right or other
asset from any other Person or sell or otherwise dispose of, or lease or
license, any right or other asset to any other Person (except in the
ordinary course of business and consistent with past practices), or waive
or relinquish any material right;
(X) lend money to any Person, or incur or guarantee
any indebtedness (except that the Company may (A) make routine borrowings
in the ordinary course of business and consistent with past practices under
its current line of credit with Venture Banking Group; (B) (in the ordinary
course of business and consistent with past practices) make advances to
employees for valid business purposes); and (C) negotiate and post a
guarantee bond in order to proceed with its opposition of the claims
asserted by the French Tax Administration against Consilium SARL related to
its audit of the 1993-1995 fiscal year tax returns);
(XI) establish, adopt or amend any employee benefit
plan, pay any bonus or make any profit-sharing or similar payment to, or
increase the amount of the wages, salary, commissions, fringe benefits or
other compensation or remuneration payable to, any of its directors,
officers or employees (except that the Company may in the ordinary course
of business and consistent with past practices (A) make routine, reasonable
salary increases in connection with the Company's customary employee review
process, (B) pay customary bonuses in accordance with existing bonus plans
referred to in Part 2.17(a) of the Company Disclosure Schedule or new bonus
plans consistent with existing bonus plans, (C) make profit sharing or
similar payments, (D) adopt a new sales commission plan as long as the
Company provides Parent with a copy of such plan and consults with Parent
with respect to such plan prior to the adoption of such plan, and (E) pay
performance bonuses as contemplated by Part 4.2(b)(xi) of the Company
Disclosure Schedule;
(XII) hire any employee at the level of vice president
or above;
(XIII) change any of its methods of accounting or
accounting practices in any respect;
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(XIV) take or permit to be taken any action that
could preclude Parent from accounting for the merger as a "pooling of
interests" for accounting purposes;
(XV) make any Tax election inconsistent with past
practices;
(XVI) settle any Legal Proceeding involving payments
by any of the Acquired Corporations in excess of $250,000 or equitable
relief against any of the Acquired Corporations;
(XVII) enter into any material transaction or take any
other material action outside the ordinary course of business or
inconsistent with past practices; or
(XVIII) agree or commit to take any of the actions
described in clauses "(i)" through "(xvii)" of this Section 4.2(b).
Parent agrees not to unreasonably withhold or delay its consent to any of the
actions referred to in clause "(vi)" of this Section 4.2(b).
Without limiting any other provision of this Section 4.2(b), during the Pre-
Closing Period, the Company agrees to consult with Parent a reasonable period of
time prior to: (A) permitting any of the Acquired Corporations to enter into (1)
any letter of intent, memorandum of understanding or other Contract relating to
the Company's FAB300 software project, or (2) any Contract of the type referred
to in Section 2.10(a)(iii), and (B) hiring any employee at the level of manager
through (but not including) vice president (it being understood that the actions
referred to in this sentence shall not require the prior written consent of
Parent).
(C) During the Pre-Closing Period, the Company shall
promptly notify Parent in writing of: (i) the discovery by the Company of any
event, condition, fact or circumstance that occurred or existed on or prior to
the date of this Agreement and that caused or constitutes a material inaccuracy
in any representation or warranty made by the Company in this Agreement; (ii)
any event, condition, fact or circumstance that occurs, arises or exists after
the date of this Agreement and that would cause or constitute a material
inaccuracy in any representation or warranty made by the Company in this
Agreement if (A) such representation or warranty had been made as of the time of
the occurrence, existence or discovery of such event, condition, fact or
circumstance, or (B) such event, condition, fact or circumstance had occurred,
arisen or existed on or prior to the date of this Agreement; (iii) any material
breach of any covenant or obligation of the Company; and (iv) any event,
condition, fact or circumstance that would make the timely satisfaction of any
of the conditions set forth in Section 6 or Section 7 impossible or unlikely or
that has had or could reasonably be expected to have a Material Adverse Effect
on the Acquired Corporations. Without limiting the generality of the foregoing,
the Company shall promptly advise Parent in writing of any Legal Proceeding or
material claim threatened, commenced or asserted against or with respect to any
of the Acquired Corporations. No notification given to Parent pursuant to this
Section 4.2(c) shall limit or otherwise affect any
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of the representations, warranties, covenants or obligations of the Company
contained in this Agreement.
4.3 NO SOLICITATION.
(A) The Company shall not directly or indirectly, and shall
not authorize or permit any of the other Acquired Corporations or any
Representative of any of the Acquired Corporations directly or indirectly to,
(i) solicit, initiate, encourage or induce the making, submission or
announcement of any Acquisition Proposal or take any action that could
reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any
information regarding any of the Acquired Corporations to any Person in
connection with or in response to an Acquisition Proposal, (iii) engage in
discussions or negotiations with any Person with respect to any Acquisition
Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v)
enter into any letter of intent or similar document or any Contract
contemplating or otherwise relating to any Acquisition Transaction; PROVIDED,
HOWEVER, that prior to the adoption and approval of this Agreement by the
Required Company Stockholder Vote, the Company shall not be prohibited by this
Section 4.3(a) from furnishing nonpublic information regarding the Acquired
Corporations to, or entering into discussions with, any Person in response to a
Superior Offer that is submitted by such Person (and not withdrawn) if (1)
neither the Company nor any Representative of any of the Acquired Corporations
shall have violated any of the restrictions set forth in this Section 4.3, (2)
the board of directors of the Company concludes in good faith, after
consultation with its outside legal counsel, that the failure to take such
action would be inconsistent with the fiduciary obligations of such board of
directors to the Company's stockholders under applicable law, (3) prior to
furnishing any such nonpublic information to, or entering into discussions with,
such Person, the Company gives Parent written notice of the identity of such
Person and of the Company's intention to furnish nonpublic information to, or
enter into discussions with, such Person, and the Company receives from such
Person an executed confidentiality agreement containing customary limitations on
the use and disclosure of all nonpublic written and oral information furnished
to such Person by or on behalf of the Company, and (4) prior to furnishing any
such nonpublic information to such Person, the Company furnishes such nonpublic
information to Parent (to the extent such nonpublic information has not been
previously furnished by the Company to Parent). The parties agree that for
purposes of the preceding sentence (but for no other purpose), an offer which is
conditioned on completion of due diligence (and regarding which the board of
directors of the Company determines, in good faith, based on the advice of its
financial advisor, that financing is likely to be obtained) shall be deemed to
constitute a "Superior Offer" if such offer otherwise meets the definition of
"Superior Offer" set forth in Exhibit A (other than the financing portion of
such definition). Without limiting the generality of the foregoing, the Company
acknowledges and agrees that any violation of any of the restrictions set forth
in the preceding sentence by any Representative of any of the Acquired
Corporations, whether or not such Representative is purporting to act on behalf
of any of the Acquired Corporations, shall be deemed to constitute a breach of
this Section 4.3 by the Company.
(B) The Company shall promptly advise Parent orally and in
writing of any Acquisition Proposal (including the identity of the Person making
or submitting such
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Acquisition Proposal and the terms thereof) that is made or submitted by any
Person during the Pre-Closing Period. The Company shall keep Parent fully
informed with respect to the status of any such Acquisition Proposal and any
modification or proposed modification thereto.
SECTION 5. ADDITIONAL COVENANTS OF THE PARTIES
5.1 REGISTRATION STATEMENT; PROSPECTUS/PROXY STATEMENT.
(A) As promptly as practicable after the date of this
Agreement, Parent and the Company shall prepare and cause to be filed with the
SEC the Prospectus/Proxy Statement and Parent shall prepare and cause to be
filed with the SEC the Form S-4 Registration Statement, in which the
Prospectus/Proxy Statement will be included as a prospectus. PROVIDED, HOWEVER,
that notwithstanding anything to the contrary contained in this Section 5.1(a),
if (and to the extent) Parent so elects: (i) the Proxy Statement Prospectus
shall initially be filed with the SEC on a confidential basis as a proxy
statement of Parent under the Securities Act); (ii) until such time as Parent
has determined that it is reasonably likely that the SEC will promptly declare
the Form S-4 Registration Statement effective under the Securities Act, all
amendments to the Proxy Statement/Prospectus shall be filed with the SEC on a
confidential basis as amendments to the proxy statement of the Company under
Section 14 of the Exchange Act; and (iii) Parent shall not be obligated to file
the Form S-4 Registration Statement with the SEC until such time as Parent has
determined that it is reasonably likely that the SEC will promptly declare the
Form S-4 Registration Statement effective under the Securities Act. Each of
Parent and the Company shall use all reasonable efforts to cause the Form S-4
Registration Statement and the Prospectus/Proxy Statement to comply with the
rules and regulations promulgated by the SEC, to respond promptly to any
comments of the SEC or its staff and to have the Form S-4 Registration Statement
declared effective under the Securities Act as promptly as practicable after it
is filed with the SEC. The Company will use all reasonable efforts to cause the
Prospectus/Proxy Statement to be mailed to the Company's stockholders as
promptly as practicable after the Form S-4 Registration Statement is declared
effective under the Securities Act. The Company shall promptly furnish to Parent
all information concerning the Acquired Corporations and the Company's
stockholders that may be required or reasonably requested in connection with any
action contemplated by this Section 5.1. If any event relating to any of the
Acquired Corporations occurs, or if the Company becomes aware of any
information, that should be disclosed in an amendment or supplement to the Form
S-4 Registration Statement or the Prospectus/Proxy Statement, then the Company
shall promptly inform Parent thereof and shall cooperate with Parent in filing
such amendment or supplement with the SEC and, if appropriate, in mailing such
amendment or supplement to the stockholders of the Company.
(B) Prior to the Effective Time, Parent shall use
reasonable efforts to obtain all regulatory approvals needed to ensure that the
Parent Common Stock to be issued in the Merger will be registered or qualified
under the securities law of every jurisdiction of the United States in which any
registered holder of Company Common Stock has an address of record on the record
date for determining the stockholders entitled to notice of and to vote at the
Company Stockholders' Meeting; PROVIDED, HOWEVER, that Parent shall not be
required (i) to
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qualify to do business as a foreign corporation in any jurisdiction in which it
is not now qualified or (ii) to file a general consent to service of process in
any jurisdiction.
5.2 COMPANY STOCKHOLDERS' MEETING.
(A) The Company shall take all action necessary under all
applicable Legal Requirements to call, give notice of, convene and hold a
meeting of the holders of Company Common Stock to consider, act upon and vote
upon the adoption and approval of this Agreement and the approval of the Merger
(the "Company Stockholders' Meeting"). The Company Stockholders' Meeting will be
held as promptly as practicable and in any event within 45 days after the Form
S-4 Registration Statement is declared effective under the Securities Act. The
Company shall ensure that the Company Stockholders' Meeting is called, noticed,
convened, held and conducted, and that all proxies solicited in connection with
the Company Stockholders' Meeting are solicited, in compliance with all
applicable Legal Requirements. The Company's obligation to call, give notice of,
convene and hold the Company Stockholders' Meeting in accordance with this
Section 5.2(a) shall not be limited or otherwise affected by the commencement,
disclosure, announcement or submission of any Superior Offer or other
Acquisition Proposal, or by any withdrawal, amendment or modification of the
recommendation of the board of directors of the Company with respect to the
Merger.
(B) Subject to Section 5.2(c): (i) the board of directors
of the Company shall unanimously recommend that the Company's stockholders vote
in favor of and adopt and approve this Agreement and approve the Merger at the
Company Stockholders' Meeting; (ii) the Prospectus/Proxy Statement shall include
a statement to the effect that the board of directors of the Company has
unanimously recommended that the Company's stockholders vote in favor of and
adopt and approve this Agreement and approve the Merger at the Company
Stockholders' Meeting; and (iii) neither the board of directors of the Company
nor any committee thereof shall withdraw, amend or modify, or propose or resolve
to withdraw, amend or modify, in a manner adverse to Parent, the unanimous
recommendation of the board of directors of the Company that the Company's
stockholders vote in favor of and adopt and approve this Agreement and approve
the Merger. For purposes of this Agreement, said recommendation of the board of
directors of the Company shall be deemed to have been modified in a manner
adverse to Parent if said recommendation shall no longer be unanimous.
(C) Nothing in Section 5.2(b) shall prevent the board of
directors of the Company from withdrawing, amending or modifying its unanimous
recommendation in favor of the Merger at any time prior to the adoption and
approval of this Agreement by the Required Company Stockholder Vote if (i) a
Superior Offer is made to the Company and is not withdrawn, (ii) neither the
Company nor any of its Representatives shall have violated any of the
restrictions set forth in Section 4.3, (iii) the board of directors of the
Company concludes in good faith, after consultation with its outside counsel,
that, in light of such Superior Offer, it would be inconsistent with the
fiduciary obligations of the board of directors of the Company to the Company's
stockholders under applicable law not to withdraw, amend or modify such
recommendation, (iv) the Company provides Parent with at least 24 hours prior
notice of any meeting of the Company's board of directors at which such board of
directors is expected to
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consider such Superior Offer, and (v) the Company's board of directors does not
withdraw, amend or modify its unanimous recommendation in favor of the Merger
for at least 48 hours after the Company provides Parent with the name of the
Person making such Superior Offer and a copy of such Superior Offer. Nothing
contained in this Section 5.2 shall limit the Company's obligation to call, give
notice of, convene and hold the Company Stockholders' Meeting (regardless of
whether the unanimous recommendation of the board of directors of the Company
shall have been withdrawn, amended or modified).
5.3 REGULATORY APPROVALS. Each party shall use all reasonable
efforts to file, as promptly as practicable after the date of this Agreement,
all notices, reports and other documents required to be filed by such party with
any Governmental Body with respect to the Merger and the other transactions
contemplated by this Agreement, and to submit promptly any additional
information requested by any such Governmental Body. Without limiting the
generality of the foregoing, the Company and Parent shall, promptly after the
date of this Agreement, prepare and file the notifications required under the
HSR Act in connection with the Merger. The Company and Parent shall respond as
promptly as practicable to (i) any inquiries or requests received from the
Federal Trade Commission or the Department of Justice for additional information
or documentation and (ii) any inquiries or requests received from any state
attorney general or other Governmental Body in connection with antitrust or
related matters. Each of the Company and Parent shall (1) give the other party
prompt notice of the commencement of any Legal Proceeding by or before any
Governmental Body with respect to the Merger or any of the other transactions
contemplated by this Agreement, (2) keep the other party informed as to the
status of any such Legal Proceeding, and (3) promptly inform the other party of
any communication to or from the Federal Trade Commission, the Department of
Justice or any other Governmental Body regarding the Merger. The Company and
Parent will consult and cooperate with one another, and will consider in good
faith the views of one another, in connection with any analysis, appearance,
presentation, memorandum, brief, argument, opinion or proposal made or submitted
in connection with any Legal Proceeding under or relating to the HSR Act or any
other federal or state antitrust or fair trade law. In addition, except as may
be prohibited by any Governmental Body or by any Legal Requirement, in
connection with any Legal Proceeding under or relating to the HSR Act or any
other federal or state antitrust or fair trade law or any other similar Legal
Proceeding, each of the Company and Parent will permit authorized
Representatives of the other party to be present at each meeting or conference
relating to any such Legal Proceeding and to have access to and be consulted in
connection with any document, opinion or proposal made or submitted to any
Governmental Body in connection with any such Legal Proceeding.
5.4 STOCK OPTIONS.
(A) Subject to Section 5.4(b), at the Effective Time, all
rights with respect to Company Common Stock under each Company Option then
outstanding shall be converted into and become rights with respect to Parent
Common Stock, and Parent shall assume each such Company Option in accordance
with the terms (as in effect as of the date of this Agreement) of the stock
option plan under which it was issued, the stock option agreement by which it is
evidenced and any applicable Change of Control Agreement. From and after the
Effective Time, (i) each Company Option assumed by Parent may be exercised
solely for shares
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of Parent Common Stock, (ii) the number of shares of Parent Common Stock subject
to each such Company Option shall be equal to the number of shares of Company
Common Stock subject to such Company Option immediately prior to the Effective
Time multiplied by the Exchange Ratio, rounding down to the nearest whole share,
(iii) the per share exercise price under each such Company Option shall be
adjusted by dividing the per share exercise price under such Company Option by
the Exchange Ratio and rounding up to the nearest cent and (iv) any restriction
on the exercise of any such Company Option shall continue in full force and
effect and the term, exercisability, vesting schedule and other provisions of
such Company Option shall otherwise remain unchanged; PROVIDED, HOWEVER, that
each Company Option assumed by Parent in accordance with this Section 5.4(a)
shall, in accordance with its terms, be subject to further adjustment as
appropriate to reflect any stock split, division or subdivision of shares, stock
dividend, reverse stock split, consolidation of shares, reclassification,
recapitalization or other similar transaction subsequent to the Effective Time.
Parent shall file with the SEC, within 7 days after the date on which the Merger
becomes effective, a registration statement on Form S-8 relating to the shares
of Parent Common Stock issuable with respect to the Company Options assumed by
Parent in accordance with this Section 5.4(a). As soon as practicable after the
Effective Time (but in no event later than 30 days thereafter), Parent shall
deliver to each holder of a Company Option an appropriate notice setting forth
such holder's rights with respect to such Company Option and indicating that
such Company Option shall continue in effect on the same terms and conditions as
were in effect immediately prior to the Effective Time (subject to the
adjustments required pursuant to Section 5.4(a)).
(B) Notwithstanding anything to the contrary contained in
this Section 5.4, in lieu of assuming outstanding Company Options in accordance
with Section 5.4(a), Parent may, at its election, cause such outstanding Company
Options to be replaced by issuing reasonably equivalent replacement stock
options in substitution therefor ("Replacement Options"). The number of shares
of Parent Common Stock subject to a Replacement Option, as well as the per share
exercise price of such Replacement Option, shall be determined in the manner
specified in Section 5.4(a). If Parent elects to substitute Replacement Options
in lieu of assuming outstanding Company Options, Parent shall take all corporate
action necessary to approve the Replacement Options described in this Section
5.4(b) in a manner qualifying under Section 424(a) of the Code and shall deliver
an agreement evidencing such Replacement Options to each applicable holder of a
Company Option within 30 days after the Effective Time. Shares of Parent Common
Stock issuable pursuant to the Replacement Options granted pursuant to this
Section 5.4(b) shall be registered on the Form S-8 Registration Statement
referred to in Section 5.4(a).
(C) The Company shall take all action that may be necessary
(under the plans pursuant to which Company Options are outstanding and
otherwise) to effectuate the provisions of this Section 5.4 and to ensure that,
from and after the Effective Time, holders of Company Options have no rights
with respect thereto other than those specifically provided in this Section 5.4.
(D) As of the Effective Time, the ESPP shall be terminated.
The rights of participants in the ESPP with respect to any offering period then
underway under the ESPP
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shall be determined by treating the last business day prior to the Effective
Time as the last day of such offering period and by making such other pro-rata
adjustments as may be required pursuant to the ESPP to reflect the reduced
offering period but otherwise treating such offering period as a fully effective
and completed offering period for all purposes of such Plan. Prior to the
Effective Time, the Company shall take all actions that are necessary to give
effect to the transactions contemplated by this Section 5.4(d); PROVIDED,
HOWEVER, that the change in the offering period referred to in this Section
5.4(d) shall be conditioned upon the consummation of the Merger.
5.5 EMPLOYEE BENEFITS. Parent agrees that all employees of the
Company who continue employment with Parent after the Effective Time shall be
eligible to participate in Parent's health, vacation and other employee benefit
plans, to the same extent as employees of Parent in similar positions and at
similar grade levels (it being understood that such employees' shall be eligible
to begin to participate (i) in Parent's employee stock purchase plan upon the
commencement of the first new offering period that commences following the
Effective Time, and (ii) in Parent's other employee benefit plans in accordance
with the terms of such plans; provided, however, that in the case of plans for
which the Company maintains a plan offering the same type of benefit, such
eligibility need not be offered by Parent until the corresponding plan of the
Company ceases to be available after the Effective Time). As soon as
administratively feasible following the Effective Time, Parent agrees to take
whatever action is necessary to transition Company employees into Parent's
employee benefits plans as contemplated by the first sentence of this Section
5.5. Further, until such time that the continuing Company employees are covered
under an employee benefit plan of Parent, they shall continue to be covered
under the corresponding Company Plan that offers the same type of benefit.
Parent also agrees to provide each such continuing employee with full credit for
service as an employee of the Company or any affiliate thereof prior to the
Effective Time for the following purposes only: for purposes of eligibility,
vesting and determination of the level of benefits under any employee benefit
plan or arrangement maintained by Parent, including Parent's 401(k) plan, and
for Parent's vacation program. Notwithstanding the foregoing, to the extent
permitted by law, Parent reserves the right to enforce, on a nondiscriminatory
basis, any otherwise applicable pre-existing condition limitation under its
medical plan with respect to any Company employee who does not enroll in
Parent's medical plan at the time Parent's medical plan is first made available
to such Company employee.
5.6 INDEMNIFICATION OF OFFICERS AND DIRECTORS.
(A) All rights to indemnification existing in favor of
those Persons who are directors and officers of the Company as of the date of
this Agreement (the "Indemnified Persons") for acts and omissions occurring
prior to the Effective Time, as provided in the Company's Bylaws (as in effect
as of the date of this Agreement) and as provided in the indemnification
agreements between the Company and said Indemnified Persons (as in effect as of
the date of this Agreement), shall survive the Merger and shall be observed by
the Surviving Corporation to the fullest extent available under Delaware law for
a period of five years from the Effective Time.
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(B) From the Effective Time until the fifth anniversary of the
Effective Time, the Surviving Corporation shall maintain in effect, for the
benefit of the Indemnified Persons with respect to acts or omissions occurring
prior to the Effective Time, the existing policy of directors' and officers'
liability insurance maintained by the Company as of the date of this Agreement
(the "Existing Policy"); PROVIDED, HOWEVER, that (i) the Surviving Corporation
may substitute for the Existing Policy a policy or policies of comparable
coverage, and (ii) the Surviving Corporation shall not be required to pay an
annual premium for the Existing Policy (or for any substitute policies) in
excess of $168,750. In the event any future annual premium for the Existing
Policy (or any substitute policies) exceeds $168,750, the Surviving Corporation
shall be entitled to reduce the amount of coverage of the Existing Policy (or
any substitute policies) to the amount of coverage that can be obtained for a
premium equal to $168,750.
(C) If the Surviving Corporation does not have sufficient capital
to comply with its obligations under Section 5.6, Parent shall provide the
Surviving Corporation with such capital.
5.7 POOLING OF INTERESTS. Each of the Company and Parent agrees (and
the Company agrees to cause the Acquired Corporations) (a) not to take any
action during the Pre-Closing Period that would adversely affect the ability of
Parent to account for the Merger as a "pooling of interests," and (b) to use all
reasonable efforts to attempt to ensure that none of its "affiliates" (as that
term is used in Rule 145 under the Securities Act) takes any action that could
adversely affect the ability of Parent to account for the Merger as a "pooling
of interests." The Company agrees to provide to PricewaterhouseCoopers LLP and
Arthur Andersen LLP such letters as shall be reasonably requested by
PricewaterhouseCoopers LLP or Arthur Andersen LLP with respect to the letters
referred to in Sections 2.26, 3.8, 6.6(e) and 6.6(f).
5.8 ADDITIONAL AGREEMENTS.
(A) Subject to Section 5.8(b), Parent and the Company shall use
all reasonable efforts to take, or cause to be taken, all actions necessary to
effectuate the Merger and make effective the other transactions contemplated by
this Agreement. Without limiting the generality of the foregoing, but subject to
Section 5.8(b), each party to this Agreement (i) shall make all filings (if any)
and give all notices (if any) required to be made and given by such party in
connection with the Merger and the other transactions contemplated by this
Agreement, (ii) shall use all reasonable efforts to obtain each Consent (if any)
required to be obtained (pursuant to any applicable Legal Requirement or
Contract, or otherwise) by such party in connection with the Merger or any of
the other transactions contemplated by this Agreement, and (iii) shall use all
reasonable efforts to lift any restraint, injunction or other legal bar to the
Merger. The Company shall promptly deliver to Parent a copy of each such filing
made, each such notice given and each such Consent obtained by the Company
during the Pre-Closing Period.
(B) Notwithstanding anything to the contrary contained in this
Agreement, Parent shall not have any obligation under this Agreement: (i) to
dispose or transfer or cause any of its Subsidiaries to dispose of or transfer
any assets, or to commit to cause any of the Acquired Corporations to dispose of
any assets; (ii) to discontinue or cause any of its
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Subsidiaries to discontinue offering any product or service, or to commit to
cause any of the Acquired Corporations to discontinue offering any product or
service; (iii) to license or otherwise make available, or cause any of its
Subsidiaries to license or otherwise make available, to any Person, any
technology, software or other Intellectual Property, or to commit to cause any
of the Acquired Corporations to license or otherwise make available to any
Person any technology, software or other Intellectual Property; (iv) to hold
separate or cause any of its Subsidiaries to hold separate any assets or
operations (either before or after the Closing Date), or to commit to cause any
of the Acquired Corporations to hold separate any assets or operations; or (v)
to make or cause any of its Subsidiaries to make any commitment (to any
Governmental Body or otherwise) regarding its future operations or the future
operations of any of the Acquired Corporations.
5.9 DISCLOSURE. Parent and the Company shall consult with each other
before issuing any press release or otherwise making any public statement with
respect to the Merger or any of the other transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, the Company shall
not, and shall not permit any of its Subsidiaries or any Representative of any
of the Acquired Corporations to, make any disclosure regarding the Merger or any
of the other transactions contemplated by this Agreement unless (a) Parent shall
have approved such disclosure or (b) the Company shall have been advised by its
outside legal counsel that such disclosure is required by applicable law.
5.10 AFFILIATE AGREEMENTS. The Company shall use all reasonable
efforts to cause each Person identified in Part 2.20 of the Company Disclosure
Schedule and each other Person who is or becomes (or may be deemed to be) an
"affiliate" (as that term is used in Rule 145 under the Securities Act) of the
Company to execute and deliver to Parent, prior to the date of the mailing of
the Prospectus/Proxy Statement to the Company's stockholders, an Affiliate
Agreement in the form of Exhibit C.
5.11 TAX MATTERS. At or prior to the filing of the Form S-4
Registration Statement, the Company and Parent shall execute and deliver to
Cooley Godward LLP and to Gray Cary Ware & Freidenrich LLP tax representation
letters in customary form. Parent, Merger Sub and the Company shall each confirm
to Cooley Godward LLP and to Gray Cary Ware & Freidenrich LLP the accuracy and
completeness as of the Effective Time of the tax representation letters
delivered pursuant to the immediately preceding sentence. Parent and the Company
shall use all reasonable efforts prior to the Effective Time to cause the Merger
to qualify as a tax free reorganization under Section 368(a)(1) of the Code.
Following delivery of the tax representations letters pursuant to the first
sentence of this Section 5.11, each of Parent and the Company shall use its
reasonable efforts to cause Cooley Godward LLP and Gray Cary Ware & Freidenrich
LLP, respectively, to deliver to it a tax opinion satisfying the requirements of
Item 601 of Regulation S-K promulgated under the Securities Act. In rendering
such opinions, each of such counsel shall be entitled to rely on the tax
representation letters referred to in this Section 5.11. The parties hereto
shall report the Merger as a reorganization within the meaning of Section 368(a)
of the Code, and neither Parent, Merger Sub nor the Company shall take any
action prior to or following the Closing that would reasonably be expected to
cause the Merger to fail to qualify as a reorganization.
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5.12 LETTER OF THE COMPANY'S ACCOUNTANTS. The Company shall use all
reasonable efforts to cause to be delivered to Parent and the Company a
"comfort" letter prepared by Arthur Andersen LLP in accordance with Statement of
Auditing Standards No. 72 "Letters For Underwriters and Certain Other Requesting
Parties," subject to receipt by Arthur Andersen LLP of a customary
representation letter from Parent, dated no more than two business days before
the date on which the Form S-4 Registration Statement becomes effective (and
reasonably satisfactory in form and substance to Parent and the Company), that
is customary in scope and substance for "comfort" letters delivered by
independent public accountants in connection with registration statements
similar to the Form S-4 Registration Statement.
5.13 LISTING. Parent shall use reasonable efforts to cause the shares
of Parent Common Stock being issued in the Merger to be approved for listing as
of the Effective Time (subject to notice of issuance) on the Nasdaq National
Market.
5.14 RESIGNATION OF OFFICERS AND DIRECTORS. The Company shall use all
reasonable efforts to obtain and deliver to Parent on or prior to the Closing
the resignation of each officer and director from positions as an officer and
director of each of the Acquired Corporations (it being understood that such
resignations shall not constitute a voluntary or an "Involuntary Termination"
under the Change of Control Agreements and shall not effect in any manner any
rights of any officer of the Company or any of the Company's obligations under
the Change of Control Agreements).
5.15 TERMINATION OF 401(K) PLAN. To the extent requested by Parent,
the Company shall ensure that its 401(k) Savings and Retirement Plan shall be
terminated immediately prior to the Effective Time.
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB
The obligations of Parent and Merger Sub to effect the Merger and otherwise
consummate the transactions contemplated by this Agreement are subject to the
satisfaction, at or prior to the Closing, of each of the following conditions:
6.1 ACCURACY OF REPRESENTATIONS.
(A) The representations and warranties of the Company
contained in this Agreement shall have been accurate in all respects as of the
date of this Agreement, except that any inaccuracies in such representations and
warranties will be disregarded if the circumstances giving rise to all such
inaccuracies (considered collectively) do not constitute, and are not reasonably
expected to result in, a Material Adverse Effect on the Acquired Corporations
(it being understood that, for purposes of determining the accuracy of such
representations and warranties, (i) all "Material Adverse Effect" qualifications
and other materiality qualifications contained in such representations and
warranties shall be disregarded, and (ii) any update of or modification to the
Company Disclosure Schedule made or purported to have been made after the date
of this Agreement shall be disregarded).
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(B) The representations and warranties of the Company contained
in this Agreement (except that any representation or warranty that specifically
refers to "the date of this Agreement," "the date hereof" or any other date
other than the Closing Date speaks as of such date) shall be accurate in all
respects as of the Closing Date as if made on and as of the Closing Date, except
that any inaccuracies in such representations and warranties will be disregarded
if the circumstances giving rise to all such inaccuracies (considered
collectively) do not constitute, and are not reasonably expected to result in, a
Material Adverse Effect on the Acquired Corporations (it being understood that,
for purposes of determining the accuracy of such representations and warranties,
(i) all "Material Adverse Effect" qualifications and other materiality
qualifications contained in such representations and warranties shall be
disregarded and (ii) any update of or modification to the Company Disclosure
Schedule made or purported to have been made after the date of this Agreement
shall be disregarded).
6.2 PERFORMANCE OF COVENANTS. Each covenant or obligation that the
Company is required to comply with or to perform at or prior to the Closing
shall have been complied with and performed in all material respects.
6.3 EFFECTIVENESS OF REGISTRATION STATEMENT. The Form S-4
Registration Statement shall have become effective in accordance with the
provisions of the Securities Act, and no stop order shall have been issued by
the SEC with respect to the Form S-4 Registration Statement.
6.4 STOCKHOLDER APPROVAL; APPRAISAL RIGHTS. This Agreement shall have
been duly adopted and approved, and the Merger shall have been duly approved, by
the Required Company Stockholder Vote, and the aggregate of all "Appraisal
Shares" and shares of Company Preferred Stock that have not been converted into
Company Common Stock prior to the Effective Time or been exchanged for Parent
Common Stock at the Effective Time in accordance with Section 1.8(a)(i) shall
represent on conversion of such shares into Company Common Stock no more than 7%
of the number of shares of Company Common Stock outstanding immediately prior to
the Effective Time.
6.5 CONSENTS. All Consents required to be obtained in connection with
the Merger and the other transactions contemplated by this Agreement shall have
been obtained and shall be in full force and effect, except where the failure to
obtain such Consents would not reasonably be expected to have a Material Adverse
Effect on the Acquired Corporations.
6.6 AGREEMENTS AND DOCUMENTS. Parent and the Company shall have
received the following agreements and documents, each of which shall be in full
force and effect:
(A) Affiliate Agreements in the form of Exhibit C, executed by
each Person who could reasonably be deemed to be an "affiliate" of the
Company (as that term is used in Rule 145 under the Securities Act);
(B) Noncompetition Agreements in the form of Exhibit D, executed
by Jonathan J. Golovin and Laurence R. Hootnick;
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(C) Releases in the form of Exhibit E, executed by Jonathan J. Golovin,
Laurence R. Hootnick, Michael Field, Clifton Wong, Frank Kaplan and Richard
Danielson;
(D) a letter from Arthur Andersen LLP, dated as of the Closing Date and
addressed to Parent and the Company, reasonably satisfactory in form and
substance to Parent, updating the "comfort" letter referred to in Section 5.12;
(E) a letter from Arthur Andersen LLP, dated as of the Closing Date and
addressed to the Company, reasonably satisfactory in form and substance to
Parent and PricewaterhouseCoopers LLP, to the effect that, after reasonable
investigation, Arthur Andersen LLP is not aware of any fact concerning the
Acquired Corporations or any of the stockholders or affiliates of the Acquired
Corporations that could preclude the Company from being a "poolable entity" in
accordance with generally accepted accounting principles, Accounting Principles
Board Opinion No. 16 and all published rules, regulations and policies of the
SEC;
(F) a letter from PricewaterhouseCoopers LLP, dated as of the Closing
Date and addressed to Parent, reasonably satisfactory in form and substance to
Parent, to the effect that PricewaterhouseCoopers LLP concurs with Parent's
management's conclusion that the Merger may be accounted for as a "pooling of
interests" in accordance with generally accepted accounting principles,
Accounting Principles Board Opinion No. 16 and all published rules, regulations
and policies of the SEC;
(G) a legal opinion of Cooley Godward LLP dated as of the Closing Date
and addressed to Parent, to the effect that the Merger will constitute a
reorganization within the meaning of Section 368 of the Code (it being
understood that, in rendering such opinion, Cooley Godward LLP may rely upon the
tax representation letters referred to in Section 5.11);
(H) a certificate executed on behalf of the Company by its Chief
Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2,
6.4, 6.5, 6.7, 6.10, 6.11 and 6.12 have been duly satisfied; and
(I) the written resignations of all officers and directors from
positions as an officer and director of each of the Acquired Corporations
effective as of the Effective Time (it being understood that such resignations
shall not constitute a voluntary or an "Involuntary Termination" under the
Change of Control Agreements and shall not effect in any manner any rights of
any officer of the Company or any of the Company's obligations under the Change
of Control Agreements).
6.7 NO MATERIAL ADVERSE CHANGE. There shall have been no material
adverse change in the business, condition, assets, liabilities, operations or
results of operations of the Acquired Corporations since the date of this
Agreement (it being understood that none of the following shall be deemed, in
and of itself, to constitute a material adverse change in the business,
condition, assets, liabilities, operations or results of operations of the
Acquired
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Corporations since the date of this Agreement: (a) a change in the market price
or trading volume of the Company Common Stock, (b) a failure by the Company to
meet any published securities analyst estimates of revenue or earnings for any
period ending or for which earnings are released on or after the date of this
Agreement and prior to the Closing, (c) a failure to report earnings results in
any quarter ending on or after the date of this Agreement consistent with the
Company's historical earnings results for its Semiconductor and Electronics
business unit in any quarter during fiscal 1997 or 1998, (d) a change that
results from conditions affecting the U.S. economy or the world economy, (e) a
change that results from conditions affecting the semiconductor industry or the
semiconductor equipment industry so long as such conditions do not affect the
Company in a disproportionate manner as compared with companies of a similar
size, (f) a delay in customer orders arising primarily out of or resulting
primarily from the announcement of the transactions contemplated by this
Agreement; and (g) a change that results from the taking of any action required
by this Agreement).
6.8 HSR ACT; GERMAN ANTICOMPETITION LAW. The waiting period
applicable to the consummation of the Merger under the HSR Act shall have
expired or been terminated, and the waiting period applicable to the
consummation of the Merger under the GWB shall have expired or been terminated.
6.9 LISTING. The shares of Parent Common Stock to be issued in the
Merger shall have been approved for listing (subject to notice of issuance) on
the Nasdaq National Market.
6.10 NO RESTRAINTS. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the Merger
shall have been issued by any court of competent jurisdiction and remain in
effect, and there shall not be any Legal Requirement enacted or deemed
applicable to the Merger that makes consummation of the Merger illegal.
6.11 NO GOVERNMENTAL LITIGATION. There shall not be pending or
threatened any Legal Proceeding in which a Governmental Body is or is threatened
to become a party or is otherwise involved, and neither Parent nor the Company
shall have received any communication from any Governmental Body in which such
Governmental Body indicates the probability of commencing any Legal Proceeding
or taking any other action: (a) challenging or seeking to restrain or prohibit
the consummation of the Merger; (b) relating to the Merger and seeking to obtain
from Parent or any of its Subsidiaries, or any of the Acquired Corporations, any
damages or other relief that would be material to Parent; (c) seeking to
prohibit or limit in any material respect Parent's ability to vote, receive
dividends with respect to or otherwise exercise ownership rights with respect to
the stock of any of the Acquired Corporations; or (d) which would materially and
adversely affect the right of Parent or any of the Acquired Corporations to own
the assets or operate the business of the Acquired Corporations.
6.12 NO OTHER LITIGATION. There shall not be pending any Legal
Proceeding in which there is a reasonable likelihood of an outcome that would
have a Material Adverse Effect on the Acquired Corporations or a Material
Adverse Effect on Parent: (a) challenging or seeking to restrain or prohibit the
consummation of the Merger or any of the other transactions
53.
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contemplated by this Agreement; (b) relating to the Merger and seeking to obtain
from Parent or any of its Subsidiaries, or any of the Acquired Corporations, any
damages or other relief that would be material to Parent; (c) seeking to
prohibit or limit in any material respect Parent's ability to vote, receive
dividends with respect to or otherwise exercise ownership rights with respect to
the stock of any of the Acquired Corporations; or (d) which would affect
adversely the right of Parent or any of the Acquired Corporations to own the
assets or operate the business of the Acquired Corporations.
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY
The obligation of the Company to effect the Merger and otherwise consummate
the transactions contemplated by this Agreement are subject to the satisfaction,
at or prior to the Closing, of the following conditions:
7.1 ACCURACY OF REPRESENTATIONS.
(A) The representations and warranties of Parent and Merger Sub
contained in this Agreement shall have been accurate in all respects as of the
date of this Agreement, except that any inaccuracies in such representations and
warranties will be disregarded if the circumstances giving rise to all such
inaccuracies (considered collectively) do not constitute, and are not reasonably
expected to result in, a Material Adverse Effect on Parent (it being understood
that, for purposes of determining the accuracy of such representations and
warranties, all "Material Adverse Effect" qualifications and other materiality
qualifications contained in such representations and warranties shall be
disregarded).
(B) The representations and warranties of Parent and Merger Sub
contained in this Agreement (except that any representation or warranty that
specifically refers to "the date of this Agreement," "the date hereof" or any
other date other than the Closing Date speaks as of such date) shall be accurate
in all respects as of the Closing Date as if made on and as of the Closing Date,
except that any inaccuracies in such representations and warranties will be
disregarded if the circumstances giving rise to all such inaccuracies
(considered collectively) do not constitute, and are not reasonably expected to
result in, a Material Adverse Effect on Parent (it being understood that, for
purposes of determining the accuracy of such representations and warranties, all
"Material Adverse Effect" qualifications and other materiality qualifications
contained in such representations and warranties shall be disregarded).
7.2 PERFORMANCE OF COVENANTS. All of the covenants and obligations
that Parent and Merger Sub are required to comply with or to perform at or prior
to the Closing shall have been complied with and performed in all material
respects.
7.3 EFFECTIVENESS OF REGISTRATION STATEMENT. The Form S-4
Registration Statement shall have become effective in accordance with the
provisions of the Securities Act, and no stop order shall have been issued by
the SEC with respect to the Form S-4 Registration Statement.
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7.4 STOCKHOLDER APPROVAL. This Agreement shall have been duly adopted
and approved, and the Merger shall have been duly approved, by the Required
Company Stockholder Vote.
7.5 DOCUMENTS. The Company shall have received the following
documents:
(A) a legal opinion of Gray Cary Ware & Freidenrich LLP, dated as
of the Closing Date, to the effect that the Merger will constitute a
reorganization within the meaning of Section 368 of the Code (it being
understood that, in rendering such opinion, Gray Cary Ware & Freidenrich
LLP may rely upon the tax representation letters referred to in Section
5.11); and
(B) a certificate executed on behalf of Parent by an executive
officer of Parent, confirming that conditions set forth in Sections 7.1 and
7.2 have been duly satisfied.
7.6 HSR ACT; GERMAN ANTICOMPETITION LAW. The waiting period
applicable to the consummation of the Merger under the HSR Act shall have
expired or been terminated, and the waiting period applicable to the
consummation of the Merger under the GWB shall have expired or been terminated.
7.7 LISTING. The shares of Parent Common Stock to be issued in the
Merger shall have been approved for listing (subject to notice of issuance) on
the Nasdaq National Market.
7.8 NO RESTRAINTS. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the Merger by
the Company shall have been issued by any court of competent jurisdiction and
remain in effect, and there shall not be any Legal Requirement enacted or deemed
applicable to the Merger that makes consummation of the Merger by the Company
illegal.
SECTION 8. TERMINATION
8.1 TERMINATION. This Agreement may be terminated prior to the
Effective Time (whether before or after approval of the Merger by the Required
Company Stockholder Vote):
(A) by mutual written consent of Parent and the Company;
(B) by either Parent or the Company if the Merger shall not have
been consummated by March 31, 1999 (unless the failure to consummate the
Merger is attributable to a failure on the part of the party seeking to
terminate this Agreement to perform any material obligation required to be
performed by such party at or prior to the Effective Time);
(C) by either Parent or the Company if a court of competent
jurisdiction or other Governmental Body shall have issued a final and
nonappealable
55.
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order, decree or ruling, or shall have taken any other action, having the
effect of permanently restraining, enjoining or otherwise prohibiting the
Merger;
(D) by either Parent or the Company if (i) the Company
Stockholders' Meeting shall have been held and (ii) this Agreement and the
Merger shall not have been approved at such meeting by the Required Company
Stockholder Vote; PROVIDED, HOWEVER, that the Company shall not be
permitted to terminate this Agreement pursuant to this Section 8.1(d)
unless the Company shall have paid to Parent any fee required to be paid to
Parent pursuant to Section 8.3(b);
(E) by Parent (at any time prior to the adoption and approval of
this Agreement and the Merger by the Required Company Stockholder Vote) if
a Triggering Event shall have occurred;
(F) by Parent if any of the Company's representations and
warranties contained in this Agreement shall have been materially
inaccurate as of the date of this Agreement or shall have become materially
inaccurate as of any subsequent date (as if made on such subsequent date),
or if any of the Company's covenants contained in this Agreement shall have
been breached in any material respect; PROVIDED, HOWEVER, that Parent may
not terminate this Agreement under this Section 8.1(f) (i) on account of an
inaccuracy in the Company's representations and warranties that is curable
by the Company or on account of a breach of a covenant by the Company that
is curable by the Company unless the Company fails to cure such inaccuracy
or breach within 30 days after receiving written notice from Parent of such
inaccuracy or breach; or (ii) if such inaccuracy or breach (considered in
the aggregate with all other inaccuracies or breaches) would not result in
a failure of the conditions set forth in Section 6.1 hereof); or
(G) by the Company if any of Parent's representations and
warranties contained in this Agreement shall have been materially
inaccurate as of the date of this Agreement or shall have become materially
inaccurate as of any subsequent date (as if made on such subsequent date),
or if any of Parent's covenants contained in this Agreement shall have been
breached in any material respect; PROVIDED, HOWEVER, that the Company may
not terminate this Agreement under this Section 8.1(g) (i) on account of an
inaccuracy in Parent's representations and warranties that is curable by
Parent or on account of a breach of a covenant by Parent that is curable by
Parent unless Parent fails to cure such inaccuracy or breach within 30 days
after receiving written notice from the Company of such inaccuracy or
breach; or (ii) if such inaccuracy or breach (considered in the aggregate
with all other inaccuracies or breaches) would not result in a failure of
the conditions set forth in Section 7.1 hereof).
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8.2 EFFECT OF TERMINATION. In the event of the termination of this
Agreement as provided in Section 8.1, this Agreement shall be of no further
force or effect (and, except as provided in this Section 8.2, there shall be no
liability or obligation hereunder on the part of any of the parties hereto or
their respective officers, directors, stockholders or Affiliates); provided,
however, that (i) this Section 8.2, Section 8.3 and Section 9 shall survive the
termination of this Agreement and shall remain in full force and effect, and
(ii) the termination of this Agreement shall not relieve any party from any
liability for any willful breach of any representation, warranty or covenant
contained in this Agreement.
8.3 EXPENSES; TERMINATION FEES.
(A) Except as set forth in this Section 8.3, all fees and
expenses incurred in connection with this Agreement and the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses, whether or not the Merger is consummated; PROVIDED, HOWEVER, that
Parent and the Company shall share equally all fees and expenses, other than
attorneys' and accounting fees and expenses, incurred in connection with (i) the
filing, printing and mailing of the Form S-4 Registration Statement and the
Prospectus/Proxy Statement and any amendments or supplements thereto and (ii)
the filing of the premerger notification and report forms relating to the Merger
under the HSR Act.
(B) If (i) this Agreement is terminated by Parent or the Company
pursuant to Section 8.1(d) and at or prior to the time of such termination an
Acquisition Proposal shall have been disclosed, announced, commenced, submitted
or made (and shall not have been publicly, absolutely and unconditionally
withdrawn and abandoned), or (ii) this Agreement is terminated by Parent
pursuant to Section 8.1(e), then, in either such case, the Company shall pay to
Parent, in cash at the time specified in the next sentence, a nonrefundable fee
in the amount of $1,000,000 (the "Initial Termination Fee"). In the case of
termination of this Agreement by the Company pursuant to Section 8.1(d), the fee
referred to in the preceding sentence shall be paid by the Company prior to such
termination, and in the case of termination of this Agreement by Parent pursuant
to Section 8.1(d) or Section 8.1(e), the fee referred to in the preceding
sentence shall be paid by the Company within two business days after such
termination. If, within 360 days after the payment of the Initial Termination
Fee, an Acquisition Transaction (other than with Parent or one of Parent's
Affiliates) is consummated, or the Company enters into a definitive agreement
with respect to an Acquisition Transaction (other than with Parent or one of
Parent's Affiliates), the Company shall pay to Parent in cash an additional
nonrefundable fee of $1,000,000, such payment to be made at or prior to the
consummation of such Acquisition Transaction or the entering into of such
definitive agreement, whichever is earlier.
(C) In no event shall the Company be required to pay any
termination fee to Parent pursuant to Section 8.3(b) if (i) prior to the
applicable termination of this Agreement, Parent was in material breach of its
obligations under this Agreement; (ii) prior to the applicable termination of
this Agreement (and promptly, and in any event, no more than two business days,
after the Company discovers any such material breach), the Company shall have
advised Parent in writing that Parent is in material breach of its obligations
under this
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Agreement; and (iii) prior to the applicable termination of this Agreement,
Parent shall not have substantially cured such material breach.
SECTION 9. MISCELLANEOUS PROVISIONS
9.1 AMENDMENT. This Agreement may be amended with the approval of
the respective boards of directors of the Company and Parent at any time
(whether before or after the adoption and approval of this Agreement and the
approval of the Merger by the stockholders of the Company); PROVIDED, HOWEVER,
that after any such adoption and approval of this Agreement and approval of the
Merger by the Company's stockholders, no amendment shall be made which by law
requires further approval of the stockholders of the Company without the further
approval of such stockholders. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
9.2 WAIVER.
(A) No failure on the part of either party to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
either party in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy.
(B) Neither party shall be deemed to have waived any claim
arising out of this Agreement, or any power, right, privilege or remedy under
this Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such party; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
9.3 NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties contained in this Agreement or in any certificate
delivered pursuant to this Agreement shall survive the Merger.
9.4 ENTIRE AGREEMENT; COUNTERPARTS. This Agreement and the other
agreements referred to herein constitute the entire agreement and supersede all
prior agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof and thereof. This Agreement may be
executed in several counterparts, each of which shall be deemed an original and
all of which shall constitute one and the same instrument
9.5 APPLICABLE LAW; JURISDICTION. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof. In any action between the parties arising out of
or relating to this Agreement or any of the transactions contemplated by this
Agreement: (a) each of the parties irrevocably and unconditionally consents and
submits to the exclusive jurisdiction and venue of the state and federal courts
located in the State of California; (b) if any such action is commenced in a
state court, then, subject to applicable law,
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no party shall object to the removal of such action to any federal court located
in the Northern District of California; (c) each of the parties irrevocably
waives the right to trial by jury; and (d) each of the parties irrevocably
consents to service of process by first class certified mail, return receipt
requested, postage prepaid, to the address at which such party is to receive
notice in accordance with Section 9.9.
9.6 DISCLOSURE SCHEDULE. The Company Disclosure Schedule shall be
arranged in separate parts corresponding to the numbered and lettered sections
contained in Section 2, and the information disclosed in any numbered or
lettered part shall be deemed to relate to and to qualify only the particular
representation or warranty set forth in the corresponding numbered or lettered
section in Section 2, and shall not be deemed to relate to or to qualify any
other representation or warranty.
9.7 ATTORNEYS' FEES. In any action at law or suit in equity to
enforce this Agreement or the rights of any of the parties hereunder, the
prevailing party in such action or suit shall be entitled to receive a
reasonable sum for its attorneys' fees and all other reasonable costs and
expenses incurred in such action or suit.
9.8 ASSIGNABILITY. This Agreement shall be binding upon, and shall
be enforceable by and inure solely to the benefit of, the parties hereto and
their respective successors and assigns; provided, however, that neither this
Agreement nor any of the Company's rights hereunder may be assigned by the
Company without the prior written consent of Parent, and any attempted
assignment of this Agreement or any of such rights by the Company without such
consent shall be void and of no effect. Nothing in this Agreement, express or
implied, is intended to or shall confer upon any Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
9.9 NOTICES. Any notice or other communication required or permitted
to be delivered to any party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received (a) upon receipt when delivered
by hand, or (b) two business days after sent by registered mail or by courier or
express delivery service, or by facsimile, provided that in each case the notice
or other communication is sent to the address or facsimile telephone number set
forth beneath the name of such party below (or to such other address or
facsimile telephone number as such party shall have specified in a written
notice given to the other parties hereto):
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if to Parent:
Applied Materials, Inc.
3050 Bowers
Santa Clara, CA 95054
Attention: Joseph J. Sweeney
Mail Stop: 2061
Facsimile: (408) 563-4635
Attention: Alexander Meyer
Mail Stop: 1954
Facsimile: (408) 986-7260
if to Merger Sub:
c/o Applied Materials, Inc.
3050 Bowers
Santa Clara, CA 95054
Attention: Joseph J. Sweeney
Mail Stop: 2061
Facsimile: (408) 563-4635
Attention: Alexander Meyer
Mail Stop: 1954
Facsimile: (408) 986-7260
if to the Company:
Consilium, Inc.
485 Clyde Avenue
Mountain view, CA 94043
Attention:
Facsimile:
9.10 COOPERATION. The Company and Parent agree to cooperate fully
with each other and to execute and deliver such further documents, certificates,
agreements and instruments and to take such other actions as may be reasonably
requested by the other to evidence or reflect the transactions contemplated by
this Agreement and to carry out the intent and purposes of this Agreement.
9.11 CONSTRUCTION.
(A) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the
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feminine and neuter genders; the feminine gender shall include the masculine and
neuter genders; and the neuter gender shall include masculine and feminine
genders.
(B) The parties hereto agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Agreement.
(C) As used in this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words "without limitation."
(D) Except as otherwise indicated, all references in this Agreement to
"Sections," "Exhibits" and "Schedules" are intended to refer to Sections of this
Agreement and Exhibits or Schedules to this Agreement.
(E) The bold-faced headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
61.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
APPLIED MATERIALS, INC.
By:____________________________________
PENNSYLVANIA ACQUISITION SUB, INC.
By:____________________________________
CONSILIUM, INC.
By:____________________________________
62.
<PAGE>
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
ACQUIRED CORPORATION CONTRACT. "Acquired Corporation Contract" shall mean
any Contract: (a) to which any of the Acquired Corporations is a party; (b) by
which any of the Acquired Corporations or any asset of any of the Acquired
Corporations is or may become bound or under which any of the Acquired
Corporations has, or may become subject to, any obligation; or (c) under which
any of the Acquired Corporations has or may acquire any right or interest.
ACQUIRED CORPORATION SOURCE CODE. "Acquired Corporation Source Code" shall
mean any source code, or any portion, aspect or segment of any source code,
relating to any Intellectual Property owned by or licensed to any of the
Acquired Corporations or otherwise used by any of the Acquired Corporations.
ACQUISITION PROPOSAL. "Acquisition Proposal" shall mean any offer,
proposal or inquiry (other than an offer or proposal by Parent) contemplating or
otherwise relating to any Acquisition Transaction.
ACQUISITION TRANSACTION. "Acquisition Transaction" shall mean any
transaction or series of transactions involving:
(A) any merger, consolidation, amalgamation, share exchange, business
combination, issuance of securities, acquisition of securities, tender
offer, exchange offer or other similar transaction (i) in which any of the
Acquired Corporations is a constituent company, (ii) in which a Person or
"group" (as defined in the Exchange Act and the rules promulgated
thereunder) of Persons directly or indirectly acquires the Company or more
than 40% of the Company's business or directly or indirectly acquires
beneficial or record ownership of securities representing, or exchangeable
for or convertible into, more than 40% of the outstanding securities of any
class of voting securities of any of the Acquired Corporations, or (iii) in
which any of the Acquired Corporations issues securities representing more
than 40% of the outstanding securities of any class of voting securities of
the Company;
(B) any sale, lease, exchange, transfer, license, acquisition or
disposition of more than 40% of the assets of the Company; or
(C) any liquidation or dissolution of the Company.
AGREEMENT. "Agreement" shall mean the Agreement and Plan of Merger and
Reorganization to which this Exhibit A is attached, as it may be amended from
time to time.
COMPANY COMMON STOCK. "Company Common Stock" shall mean the Common Stock,
$0.01 par value per share, of the Company.
1.
<PAGE>
COMPANY DISCLOSURE SCHEDULE. "Company Disclosure Schedule" shall mean the
Company Disclosure Schedule that has been prepared by the Company in accordance
with the requirements of Section 9.6 of the Agreement and that has been
delivered by the Company to Parent on the date of the Agreement and signed by
the President of the Company.
COMPANY WARRANTS. "Company Warrants" shall mean those certain warrants to
purchase 70,000 shares of Company Common Stock held by Imperial Bancorp and
those certain warrants to purchase 75,000 shares of Company Common Stock held by
each of Evelyn Hilton and Thomas Camarda.
CONSENT. "Consent" shall mean any approval, consent, ratification,
permission, waiver or authorization (including any Governmental Authorization).
CONTRACT. "Contract" shall mean any written, oral or other agreement,
contract, subcontract, lease, understanding, instrument, note, option, warranty,
purchase order, license, sublicense, insurance policy, benefit plan or legally
binding commitment or undertaking of any nature.
ENCUMBRANCE. "Encumbrance" shall mean any lien, pledge, hypothecation,
charge, mortgage, security interest, encumbrance, claim, infringement,
interference, option, right of first refusal, preemptive right, community
property interest or restriction of any nature (including any restriction on the
voting of any security, any restriction on the transfer of any security or other
asset, any restriction on the receipt of any income derived from any asset, any
restriction on the use of any asset and any restriction on the possession,
exercise or transfer of any other attribute of ownership of any asset).
ENTITY. "Entity" shall mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any company
limited by shares, limited liability company or joint stock company), firm,
society or other enterprise, association, organization or entity.
EXCHANGE ACT. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
FORM S-4 REGISTRATION STATEMENT. "Form S-4 Registration Statement" shall
mean the registration statement on Form S-4 to be filed with the SEC by Parent
in connection with issuance of Parent Common Stock in the Merger, as said
registration statement may be amended prior to the time it is declared effective
by the SEC.
GOVERNMENTAL AUTHORIZATION. "Governmental Authorization" shall mean any:
(a) permit, license, certificate, franchise, permission, variance, clearance,
registration, qualification or authorization issued, granted, given or otherwise
made available by or under the authority of any Governmental Body or pursuant to
any Legal Requirement; or (b) right under any Contract with any Governmental
Body.
2.
<PAGE>
GOVERNMENTAL BODY. "Governmental Body" shall mean any: (a) nation, state,
commonwealth, province, territory, county, municipality, district or other
jurisdiction of any nature; (b) federal, state, local, municipal, foreign or
other government; or (c) governmental or quasi-governmental authority of any
nature (including any governmental division, department, agency, commission,
instrumentality, official, ministry, fund, foundation, center, organization,
unit, body or Entity and any court or other tribunal).
HSR ACT. "HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
GWB. "GWB" shall mean the following act enacted by the Republic of
Germany: Act Against Restraints on Competition of 1958 (Gesetz gegen
Wettbewerbsbeschrankungen).
KNOWLEDGE. The Company shall be deemed to have "Knowledge" of a particular
fact or other matter if any of the following individuals is actually aware of
such fact or other matter: Jonathan J. Golovin, Laurence R. Hootnick, Michael J.
Field, Clifton Wong, Frank Kaplan, Richard Danielson, Cecilia Ma, Deborah
Petillo or Shantha Mohan.
LEGAL PROCEEDING. "Legal Proceeding" shall mean any action, suit,
litigation, arbitration, proceeding (including any civil, criminal,
administrative, investigative or appellate proceeding), hearing, inquiry, audit,
examination or investigation commenced, brought, conducted or heard by or
before, or otherwise involving, any court or other Governmental Body or any
arbitrator or arbitration panel.
LEGAL REQUIREMENT. "Legal Requirement" shall mean any federal, state,
local, municipal, foreign or other law, statute, constitution, principle of
common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling
or requirement issued, enacted, adopted, promulgated, implemented or otherwise
put into effect by or under the authority of any Governmental Body (or under the
authority of the Nasdaq National Market).
MATERIAL ADVERSE EFFECT. An event, violation, inaccuracy, circumstance or
other matter will be deemed to have a "Material Adverse Effect" on the Acquired
Corporations if such event, violation, inaccuracy, circumstance or other matter
(considered together with all other matters that would constitute exceptions to
the representations and warranties set forth in the Agreement but for the
presence of "Material Adverse Effect" or other materiality qualifications, or
any similar qualifications, in such representations and warranties) would have a
material adverse effect on (i) the business, condition, assets, liabilities,
operations or results of operations of the Acquired Corporations taken as a
whole; PROVIDED, HOWEVER, that none of the following shall be deemed, in and of
itself, to have a Material Adverse Effect on the Acquired Corporations for
purposes of Section 6.1(b): (A) a change in the market price or trading volume
of the Company Common Stock, (B) a failure by the Company to meet any published
securities analyst estimates of revenue or earnings for any period ending or for
which earnings are released on or after the date of this Agreement and prior to
the Closing, (C) a failure to report earnings results in any quarter ending on
or after the date of this Agreement consistent with the Company's historical
earnings results for its Semiconductor and Electronics business unit in any
quarter during fiscal 1997 or 1998, (D) an event, violation, inaccuracy,
circumstance or other matter that results from
3.
<PAGE>
conditions affecting the U.S. economy or the world economy, (E) an event,
violation, inaccuracy, circumstance or other matter that results from conditions
affecting the semiconductor industry or the semiconductor equipment industry so
long as such conditions do not affect the Company in a disproportionate manner
as compared with companies of a similar size, (F) a delay in customer orders
arising primarily out of or resulting primarily from the announcement of the
transactions contemplated by this Agreement; and (G) an event, violation,
inaccuracy, circumstance or other matter that results from the taking of any
action required by this Agreement), (ii) the ability of the Company to
consummate the Merger or any of the other transactions contemplated by the
Agreement or to perform any of its material obligations under the Agreement, or
(iii) Parent's ability to vote, receive dividends with respect to or otherwise
exercise ownership rights with respect to the stock of the Surviving
Corporation. An event, violation, inaccuracy, circumstance or other matter will
be deemed to have a "Material Adverse Effect" on Parent if such event,
violation, inaccuracy, circumstance or other matter (considered together with
all other matters that would constitute exceptions to the representations and
warranties set forth in the Agreement but for the presence of "Material Adverse
Effect" or other materiality qualifications, or any similar qualifications, in
such representations and warranties) would have a material adverse effect on the
business, condition, assets, liabilities, operations or results of operations of
Parent and its Subsidiaries taken as a whole; provided, however, that none of
the following shall be deemed, in and of itself, to have a Material Adverse
Effect on Parent for purposes of Section 7.1(b): (A) an event, violation,
inaccuracy, circumstance or other matter that results from conditions affecting
the U.S. economy or the world economy, (B) an event, violation, inaccuracy,
circumstance or other matter that results from the semiconductor industry or the
semiconductor equipment industry conditions that do not affect Parent in a
disproportionate manner as compared with companies of a similar size, and (C) an
event, violation, inaccuracy, circumstance or other matter that results from the
taking of any action required by this Agreement.
PARENT AVERAGE STOCK PRICE. "Parent Average Stock Price" shall mean the
average of the closing sales price of a share of Parent Common Stock as reported
on the Nasdaq National Market for each of the twenty consecutive trading days
ending on and including the second trading day immediately preceding the date on
which a final vote of the stockholders of the Company on the adoption and
approval of this Agreement and the approval of the Merger shall have been held.
PARENT COMMON STOCK. "Parent Common Stock" shall mean the Common Stock,
$.01 par value per share, of Parent.
PERSON. "Person" shall mean any individual, Entity or Governmental Body.
PLACEMENT AGENT WARRANTS. "Placement Agent Warrants" shall mean those
certain warrants to purchase 75,000 shares of Company Common Stock held by each
of Evelyn Hilton and Thomas Camarda.
PROSPECTUS/PROXY STATEMENT. "Prospectus/Proxy Statement" shall mean the
proxy statement to be sent to the Company's stockholders in connection with the
Company Stockholders' Meeting.
4.
<PAGE>
REPRESENTATIVES. "Representatives" shall mean officers, directors,
employees, agents, attorneys, accountants, advisors and representatives.
SEC. "SEC" shall mean the United States Securities and Exchange
Commission.
SECURITIES ACT. "Securities Act" shall mean the Securities Act of 1933, as
amended.
SUBSIDIARY. An entity shall be deemed to be a "Subsidiary" of another
Person if such Person directly or indirectly owns, beneficially or of record,
(a) an amount of voting securities of other interests in such Entity that is
sufficient to enable such Person to elect at leased a majority of the members of
such Entity's board of directors or other governing body, or (b) at least 50% of
the outstanding equity or financial interests or such Entity.
SUPERIOR OFFER. "Superior Offer" shall mean an unsolicited, bona fide
written offer made by a third party to purchase (by means of a merger,
consolidation, amalgamation, share exchange, business combination, issuance of
securities, acquisition of securities, tender offer, exchange offer or other
similar transaction) more than 50% of the outstanding shares of Company Common
Stock, which the board of directors of the Company determines, in good faith,
based on the written advice of its financial advisor, has terms more favorable
to the Company's stockholders than the terms of the Merger; provided, however,
that any such offer shall not be deemed to be a "Superior Offer" unless any
financing required to consummate the transaction contemplated by such offer is
either (i) in the possession of such third party at the time such offer is made,
or (ii) committed and likely to be obtained by such third party on a timely
basis.
TAX. "Tax" shall mean any tax (including any income tax, franchise tax,
capital gains tax, gross receipts tax, value-added tax, surtax, estimated tax,
unemployment tax, national health insurance tax, excise tax, ad valorem tax,
transfer tax, stamp tax, sales tax, use tax, property tax, business tax,
withholding tax or payroll tax), levy, assessment, tariff, duty (including any
customs duty), deficiency or fee, and any related charge or amount (including
any fine, penalty or interest), imposed, assessed or collected by or under the
authority of any Governmental Body.
TAX RETURN. "Tax Return" shall mean any return (including any information
return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information filed
with or submitted to, or required to be filed with or submitted to, any
Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation
or enforcement of or compliance with any Legal Requirement relating to any Tax.
TRIGGERING EVENT. A "Triggering Event" shall be deemed to have occurred
if: (i) the board of directors of the Company shall have failed to recommend,
or shall for any reason have withdrawn or shall have amended or modified in a
manner adverse to Parent its unanimous recommendation in favor of, the adoption
and approval of the Agreement or the approval of the Merger; (ii) the Company
shall have failed to include in the Prospectus/Proxy Statement the unanimous
recommendation of the board of directors of the Company in favor of the adoption
and approval of the Agreement and the approval of the Merger; (iii) the board of
directors of the
5.
<PAGE>
Company fails to reaffirm its unanimous recommendation in favor of the adoption
and approval of the Agreement and the approval of the Merger within ten business
days after Parent requests in writing that such recommendation be reaffirmed;
(iv) the board of directors of the Company shall have approved, endorsed or
recommended any Acquisition Proposal; (v) the Company shall have entered into
any letter of intent or similar document or any Contract relating to any
Acquisition Proposal; (vi) the Company shall have failed to hold the Company
Stockholders' Meeting as promptly as practicable and in any event within 60 days
after the Form S-4 Registration Statement is declared effective under the
Securities Act; (vii) a tender or exchange offer relating to securities of the
Company shall have been commenced and the Company shall not have sent to its
securityholders, within ten business days after the commencement of such tender
or exchange offer, a statement disclosing that the Company recommends rejection
of such tender or exchange offer; (viii) an Acquisition Proposal is publicly
announced, and the Company (A) fails to issue a press release announcing its
opposition to such Acquisition Proposal within ten business days after such
Acquisition Proposal is announced or (B) otherwise fails to actively oppose such
Acquisition Proposal within ten business days after such Acquisition Proposal is
announced; or (ix) the Company breaches any of its obligations under Section 4.3
of the Agreement.
UNAUDITED INTERIM BALANCE SHEET. "Unaudited Interim Balance Sheet" shall
mean the unaudited consolidated balance sheet of the Company and its
subsidiaries as of July 31, 1998 as filed by the Company in its Quarterly Report
on Form 10-Q filed with the SEC on September 14, 1998.
6.
<PAGE>
EXHIBITS
Exhibit A - Certain Definitions
Exhibit B - Form of Certificate of Incorporation of Surviving Corporation
Exhibit C - Form of Affiliate Agreement
Exhibit D - Form of Noncompetition Agreement
Exhibit E - Form of Release Agreement
1.
<PAGE>
EXHIBIT 99.1
PAGE 1 OF 2
FOR IMMEDIATE RELEASE
Contact:
Applied Materials, Inc.
Jeff Lettes (media) (408) 563-5161
Carolyn Schwartz (financial community)
(408) 748-5227
Consilium, Inc.
Richard Danielson (650) 691-6100
Shannon McGinley (650) 691-6189
APPLIED MATERIALS TO ACQUIRE
CONSILIUM IN STOCK SWAP
Applied Materials to Enter the Manufacturing
Execution System Software Business with the
Acquisition of Consilium, Inc.
SANTA CLARA, Calif., October 12, 1998 --
Applied Materials, Inc. and Consilium, Inc.
announced today that they had reached a
definitive agreement for Applied Materials to
acquire Consilium in a stock-for-stock merger.
Each share of Consilium's stock will be
exchanged for between 0.182 and 0.165 of a
share of Applied Materials' common stock, with
the actual ratio being based upon Applied
Materials' average stock closing price during a
specified period prior to the meeting of
Consilium's stockholders to vote on the merger.
The proposed acquisition would combine the
strengths of the world's largest semiconductor
equipment company with the leading independent
supplier of integrated semiconductor and
electronics manufacturing execution systems
(MES) software and services.
"As the company with the largest installed base
of independent MES software, Consilium has
established itself as a major force in
providing semiconductor and electronics
manufacturers with a way to optimize fab
performance," said Sass Somekh, senior vice
president,
<PAGE>
Applied Materials. News Room PAGE 2 OF 2
Office of the President, Applied Materials. "We see a
wide range of synergies that this merger can offer to
extend our continued commitment to customers to improve
overall equipment effectiveness and total fab
productivity. This combination strengthens our primary
business objective to provide Total Solutions (TM) to
our customers that enhance their profitability."
"We believe that this merger represents a strategic
opportunity for both companies," said Larry Hootnick,
president and chief executive officer, Consilium, Inc.
"Combining our world-class software with Applied
Materials' expertise in semiconductor processing will
provide us with the momentum to move our advanced
technologies further into the next century. Becoming
part of Applied Materials also enables us to expand our
next-generation products, as well as broaden our
service and support capabilities."
The acquisition, which will be accounted for as a
pooling-of-interests, is expected to be closed by the
end of this calendar year or in early 1999, subject to,
among other things, regulatory approval and approval of
the stockholders of Consilium, Inc. Certain
stockholders of Consilium have already entered into
voting agreements in support of the merger.
This press release contains certain forward-looking
statements that involve risks and uncertainties that
could cause Applied Materials' actual results to differ
materially from those expressed or implied by these
statements. Such risks and uncertainties include, but
are not limited to, the possible inability to complete
the merger as scheduled, or at all, the performance and
successful integration of acquired businesses, and
Applied Materials' ability to timely align its cost
structure with prevailing market conditions. Applied
Materials assumes no obligation to update the
information in this press release.
Consilium, Inc. is the leading independent supplier of
integrated semiconductor manufacturing execution
systems (MES) software and services. Headquartered in
Mountain View, California, Consilium's products have
been helping world class manufacturers achieve best
practices for the past 20 years. Consilium, Inc. is
traded on the Nasdaq National Market under the symbol
"CSIM." Consilium's web site is
http://www.Consilium.com.
Applied Materials, Inc. is a Fortune 500 global growth
company and the world's largest supplier of wafer
fabrication systems and services to the global
semiconductor industry. Applied Materials is traded on
the Nasdaq National Market System under the symbol
"AMAT." Applied Materials' web site is
http://www.AppliedMaterials.com.
<PAGE>
EXHIBIT 99.2
FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of October 12, 1998, by and
between Applied Materials, Inc., a Delaware corporation ("Parent"), and
____________ ("Stockholder").
RECITALS
A. Parent, Pennsylvania Acquisition Sub, Inc., a Delaware corporation
and a wholly owned subsidiary of Parent ("Merger Sub"), and Consilium, Inc., a
Delaware corporation (the "Company"), are entering into an Agreement and Plan of
Merger and Reorganization of even date herewith (the "Reorganization Agreement")
which provides (subject to the conditions set forth therein) for the merger of
Merger Sub into the Company (the "Merger").
B. In order to induce Parent and Merger Sub to enter into the
Reorganization Agreement, Stockholder is entering into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(A) "COMPANY COMMON STOCK" shall mean the common stock, par value
$0.01 per share, of the Company.
(B) "EXPIRATION DATE" shall mean the earlier of (i) the date upon
which the Reorganization Agreement is validly terminated, or (ii) the date upon
which the Merger becomes effective.
(C) Stockholder shall be deemed to "OWN" or to have acquired
"Ownership" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934) of such security.
(D) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(E) "SUBJECT SECURITIES" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options, warrants
and other rights to acquire shares of Company Common Stock) Owned by Stockholder
as of the date of this Agreement; and (ii) all additional securities of the
Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares
1
<PAGE>
of Company Common Stock) of which Stockholder acquires Ownership during the
period from the date of this Agreement through the Expiration Date.
(F) A Person shall be deemed to have a effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; or (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not cause or permit any
Transfer of any of the Subject Securities to be effected unless each Person to
which any of such Subject Securities, or any interest in any of such Subject
Securities, is or may be transferred shall have: (a) executed a counterpart of
this Voting Agreement and a proxy in the form attached hereto as Exhibit A (with
such modifications as Parent may reasonably request); and (b) agreed to hold
such Subject Securities (or interest in such Subject Securities) subject to all
of the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall ensure that: (a) none of the Subject Securities is deposited
into a voting trust; and (b) except pursuant to this Voting Agreement, no proxy
is granted, and no voting agreement or similar agreement is entered into, with
respect to any of the Subject Securities.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT. Stockholder agrees that, during the period
from the date of this Voting Agreement through the Expiration Date:
(A) at any meeting of stockholders of the Company, however
called, Stockholder shall (unless otherwise directed in writing by Parent) cause
all outstanding shares of Company Common Stock that are Owned by Stockholder as
of the record date fixed for such meeting to be voted in favor of the approval
and adoption of the Reorganization Agreement and the approval of the Merger, and
in favor of each of the other actions contemplated by the Reorganization
Agreement; and
(B) in the event written consents are solicited or otherwise
sought from stockholders of the Company with respect to the approval or adoption
of the Reorganization Agreement, with respect to the approval of the Merger or
with respect to any of the other actions contemplated by the Reorganization
Agreement, Stockholder shall (unless otherwise directed in writing by Parent)
cause to be executed, with respect to all shares of Company Common Stock
2
<PAGE>
that are Owned by Stockholder as of the record date fixed for the consent to the
proposed action, a written consent or written consents to such proposed action.
This Voting Agreement is intended to bind Stockholder only with
respect to the specific matters set forth herein, and shall not prohibit
Stockholder from acting in accordance with his fiduciary duties as an officer or
director of the Company. Stockholder will retain at all times the right to vote
the Stockholder's Subject Securities, in Stockholder's sole discretion, on all
matters other than those set forth in this Section 3.1 which are at any time or
from time to time presented to the Company's stockholders generally.
3.2 PROXY. Contemporaneously with the execution of this Voting
Agreement: (i) Stockholder shall deliver to Parent a proxy in the form attached
to this Voting Agreement as Exhibit A, which shall be irrevocable to the fullest
extent permitted by law, with respect to the shares referred to therein (the
"Proxy"); and (ii) Stockholder shall cause to be delivered to Parent an
additional proxy (in the form attached hereto as Exhibit A) executed on behalf
of the record owner of any outstanding shares of Company Common Stock that are
owned beneficially (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934), but not of record, by Stockholder.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters' rights and any similar rights relating to the Merger or any related
transaction that Stockholder or any other Person may have by virtue of the
ownership of any outstanding shares of Company Common Stock or other security
Owned by Stockholder.
SECTION 5. NO SOLICITATION
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not, directly or
indirectly, and Stockholder shall ensure that his Representatives (as defined in
the Reorganization Agreement) do not, directly or indirectly: (i) solicit,
initiate, encourage or induce the making, submission or announcement of any
Acquisition Proposal (as defined in the Reorganization Agreement) or take any
action that could reasonably be expected to lead to an Acquisition Proposal;
(ii) furnish any information regarding the Company or any direct or indirect
subsidiary of the Company to any Person in connection with or in response to an
Acquisition Proposal or potential Acquisition Proposal; or (iii) engage in
discussions with any Person with respect to any Acquisition Proposal.
Stockholder shall immediately cease and discontinue, and Stockholder shall
ensure that his Representatives immediately cease and discontinue, any existing
discussions with any Person that relate to any Acquisition Proposal. The
restrictions and covenants in this Section 5 shall apply to Stockholder only in
his capacity as a stockholder and not to Stockholder in his capacity as a
director or officer of the Company.
3
<PAGE>
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform his obligations hereunder and thereunder.
This Voting Agreement and the Proxy have been duly executed and delivered by
Stockholder and constitute legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
6.2 NO CONFLICTS OR CONSENTS
(A) The execution and delivery of this Voting Agreement and the
Proxy by Stockholder do not, and the performance of this Voting Agreement and
the Proxy by Stockholder will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Stockholder or by which he
or any of his properties is or may be bound or affected; or (ii) result in or
constitute (with or without notice or lapse of time) any breach of or default
under, or give to any other Person (with or without notice or lapse of time) any
right of termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities pursuant to, any contract to which
Stockholder is a party or by which Stockholder or any of his affiliates or
properties is or may be bound or affected.
(B) The execution and delivery of this Voting Agreement and the
Proxy by Stockholder do not, and the performance of this Voting Agreement and
the Proxy by Stockholder will not, require any consent or approval of any
Person.
6.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock set forth under the
heading "Shares Held of Record" on the signature page hereof; (b) Stockholder
holds (free and clear of any encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Company Common Stock set forth under the
heading "Options and Other Rights" on the signature page hereof; (c) Stockholder
Owns the additional securities of the Company set forth under the heading
"Additional Securities Beneficially Owned" on the signature page hereof; and (d)
Stockholder does not directly or indirectly Own any shares of capital stock or
other securities of the Company, or any option, warrant or other right to
acquire (by purchase, conversion or otherwise) any shares of capital stock or
other securities of the Company, other than the shares and options, warrants and
other rights set forth on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement,
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will be accurate in all respects at all times through the Expiration Date and
will be accurate in all respects as of the date of the consummation of the
Merger as if made on that date.
SECTION 7. ADDITIONAL COVENANTS OF STOCKHOLDER
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall (at Parent's expense) execute and deliver, or
cause to be executed and delivered, such additional transfers, assignments,
endorsements, proxies, consents and other instruments, and shall (at Parent's
expense) take such further actions, as Parent may reasonably request for the
purpose of carrying out and furthering the intent of this Voting Agreement.
7.2 LEGEND. Immediately after the execution of this Voting
Agreement (and from time to time upon the acquisition by Stockholder of
Ownership of any shares of Company Common Stock prior to the Expiration Date),
Stockholder shall submit to the Company's transfer agent each certificate
evidencing any outstanding shares of Company Common Stock or other securities of
the Company Owned by Stockholder and instruct that such certificate be imprinted
with a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH
THE TERMS AND PROVISIONS OF THE VOTING AGREEMENT DATED AS OF OCTOBER 12,
1998, BETWEEN THE ISSUER AND ______________, AS IT MAY BE AMENDED, A COPY
OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
SECTION 8. MISCELLANEOUS
8.1 EXPENSES. All costs and expenses incurred in connection with
the transactions contemplated by this Voting Agreement shall be paid by the
party incurring such costs and expenses.
8.2 NOTICES. Any notice or other communication required or
permitted to be delivered to either party under this Voting Agreement shall be
in writing and shall be deemed properly delivered, given and received (a) upon
receipt when delivered by hand, or (b) two business days after sent by courier
or express delivery service or by facsimile, provided that in each case the
notice or other communication is sent to the address or facsimile telephone
number set forth beneath the name of such party below (or to such other address
or facsimile telephone number as such party shall have specified in a written
notice given to the other party):
IF TO STOCKHOLDER:
at the address set forth below Stockholder's signature on the
signature page hereof
IF TO PARENT:
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APPLIED MATERIALS, INC.
3050 Bowers Avenue
Santa Clara, CA 95054
Attention: Joseph J. Sweeney
Mail Stop: 2061
Facsimile: (408) 563-4635
Attention: Alexander Meyer
Mail Stop: 1954
Facsimile: (408) 986-7260
8.3 SEVERABILITY. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement.
Each provision of this Voting Agreement is separable from every other provision
of this Voting Agreement, and each part of each provision of this Voting
Agreement is separable from every other part of such provision.
8.4 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision
of this Voting Agreement shall be binding upon either party unless made in
writing and signed by both parties.
8.5 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Stockholder and any attempted or purported assignment
or delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Voting Agreement shall be binding upon Stockholder
and his heirs, estate, executors, personal representatives, successors and
assigns, and shall inure to the benefit of Parent and its successors and
assigns. Without limiting any of the restrictions set forth in Section 2 or
elsewhere in this Voting Agreement, this Voting Agreement shall be binding upon
any Person to whom any Subject Securities are transferred. Nothing in this
Voting Agreement is intended to confer on any Person (other than Parent and its
successors and assigns) any rights or remedies of any nature.
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8.6 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Voting Agreement or
the Proxy was not performed in accordance with its specific terms or was
otherwise breached. Stockholder agrees that, in the event of any breach or
threatened breach by Stockholder of any covenant or obligation contained in this
Voting Agreement or in the Proxy, Parent shall be entitled (in addition to any
other remedy that may be available to it, including monetary damages) to seek
and obtain (a) a decree or order of specific performance to enforce the
observance and performance of such covenant or obligation, and (b) an injunction
restraining such breach or threatened breach. Stockholder further agrees that
neither Parent nor any other Person shall be required to obtain, furnish or post
any bond or similar instrument in connection with or as a condition to obtaining
any remedy referred to in this Section 8.6, and Stockholder irrevocably waives
any right he may have to require the obtaining, furnishing or posting of any
such bond or similar instrument.
8.7 NON-EXCLUSIVITY. The rights and remedies of Parent under this
Voting Agreement are not exclusive of or limited by any other rights or remedies
which it may have, whether at law, in equity, by contract or otherwise, all of
which shall be cumulative (and not alternative). Without limiting the
generality of the foregoing, the rights and remedies of Parent under this Voting
Agreement, and the obligations and liabilities of Stockholder under this Voting
Agreement, are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations. Nothing in this Voting Agreement shall limit any of
Stockholder's obligations, or the rights or remedies of Parent, under any
Affiliate Agreement between Parent and Stockholder; and nothing in any such
Affiliate Agreement shall limit any of Stockholder's obligations, or any of the
rights or remedies of Parent, under this Voting Agreement.
8.8 GOVERNING LAW; VENUE.
(A) This Voting Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
(B) Any legal action or other legal proceeding relating to this
Voting Agreement or the Proxy or the enforcement of any provision of this Voting
Agreement or the Proxy may be brought or otherwise commenced in any state or
federal court located in the County of Santa Clara, California. Stockholder: (i)
expressly and irrevocably consents and submits to the jurisdiction of each state
and federal court located in the County of Santa Clara, California (and each
appellate court located in the State of California), in connection with any such
legal proceeding; (ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to him at the address set forth in Section 8.2
shall constitute effective service of such process, summons, notice or document
for purposes of any such legal proceeding; (iii) agrees that each state and
federal court located in the County of Santa Clara, California, shall be deemed
to be a convenient forum; and (iv) agrees not to assert (by way of motion, as a
defense or otherwise), in any such legal proceeding commenced in any state or
federal court located in the County of Santa Clara, California, any claim that
Stockholder is not subject personally to the
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jurisdiction of such court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper or that this
Voting Agreement or the subject matter of this Voting Agreement may not be
enforced in or by such court. Nothing contained in this Section 8.8(b) shall be
deemed to limit or otherwise affect the right of Parent to commence any legal
proceeding or otherwise proceed against Stockholder in any other forum or
jurisdiction.
(C) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE PROXY.
8.9 COUNTERPARTS. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
8.10 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
8.11 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought by one party against the other party, the prevailing
party shall be entitled to recover reasonable attorneys' fees, costs and
disbursements (in addition to any other relief to which the prevailing party may
be entitled).
8.12 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Parent in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Parent shall not be deemed to have waived any claim
available to Parent arising out of this Voting Agreement, or any power, right,
privilege or remedy of Parent under this Voting Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of Parent; and any such
waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
8.13 CONSTRUCTION.
(A) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
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(B) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Voting Agreement.
(C) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(D) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
IN WITNESS WHEREOF, Parent and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
APPLIED MATERIALS, INC.
By:_______________________________________
(Signature)
__________________________________________
(Print Name)
STOCKHOLDER
__________________________________________
(Signature)
__________________________________________
(Print Name)
Address: ____________________________
____________________________
Facsimile: ____________________________
SHARES HELD OF RECORD OPTIONS AND OTHER RIGHTS ADDITIONAL SECURITIES
- --------------------- ------------------------ ---------------------
BENEFICIALLY OWNED
------------------
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of Consilium, Inc., a Delaware corporation (the
"Company"), hereby irrevocably (to the fullest extent permitted by law) appoints
and constitutes Nancy H. Handel, Alexander Meyer and Applied Materials, Inc., a
Delaware corporation ("Parent"), and each of them, the attorneys and proxies of
the undersigned with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to (i) the outstanding shares of
capital stock of the Company owned of record by the undersigned as of the date
of this proxy, which shares are specified on the final page of this proxy, and
(ii) any and all other shares of capital stock of the Company which the
undersigned may acquire on or after the date hereof. (The shares of the capital
stock of the Company referred to in clauses "(i)" and "(ii)" of the immediately
preceding sentence are collectively referred to as the "Shares.") Upon the
execution hereof, all prior proxies given by the undersigned with respect to any
of the Shares are hereby revoked, and the undersigned agrees that no subsequent
proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Merger Sub and the
Company (the "Reorganization Agreement").
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Reorganization Agreement or the effective time of the
merger contemplated thereby (the "Merger") at any meeting of the stockholders of
the Company, however called, or in connection with any solicitation of written
consents from stockholders of the Company, in favor of the approval and adoption
of the Reorganization Agreement and the approval of the Merger, and in favor of
each of the other actions contemplated by the Reorganization Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof
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under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
This proxy shall terminate upon the earlier of the valid termination of the
Reorganization Agreement or the effective time of the Merger.
Dated: October __, 1998.
__________________________________________
(Signature)
__________________________________________
(Print Name)
NUMBER OF SHARES OF COMMON STOCK OF THE COMPANY
OWNED OF RECORD AS OF THE DATE OF THIS PROXY:
____________________________________
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