<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended May 3, 1997
----------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES AND EXCHANGE ACT OF 1934
For the transition period from to
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Commission file number 0-25554
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CONTINENTAL CIRCUITS CORP.
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(Exact name of registrant as specified in its charter)
Delaware 86-0267198
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3502 East Roeser Road, Phoenix,Arizona 85040
- --------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (602) 268-3461
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No Change
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(Former name, former address and former fiscal year, if changed since
last report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
The number of shares outstanding of each of the issuer's classes of common
stock was 7,234,826 shares common stock, par value $.01, as of June 2, 1997.
<PAGE> 2
CONTINENTAL CIRCUITS CORP.
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONTINENTAL CIRCUITS CORP.
CONDENSED STATEMENTS OF INCOME
(Unaudited)
(In thousands, except per share data)
<TABLE>
<CAPTION>
Three months ended Nine months ended
May 3, April 30, May 3, April 30,
------- -------- ------- --------
1997 1996 1997 1996
------- -------- ------- --------
<S> <C> <C> <C> <C>
Net sales $31,862 $ 26,464 $88,547 $ 83,832
Cost of products sold 25,714 22,058 72,766 67,478
------- -------- ------- --------
Gross profit 6,148 4,406 15,781 16,354
Selling, general and administrative
expenses 2,295 2,002 6,134 6,099
------- -------- ------- --------
Income from operations 3,853 2,404 9,647 10,255
Other (income) expense:
Interest expense 83 153 206 446
Other 39 (29) 364 (4)
------- -------- ------- --------
Income before income taxes 3,731 2,280 9,077 9,813
Income taxes 1,352 900 3,448 3,880
======= ======== ======= ========
Net income $ 2,379 $ 1,380 $ 5,629 $ 5,933
======= ======== ======= ========
Net income per share $ 0.32 $ 0.19 $ 0.76 $ 0.80
======= ======== ======= ========
Number of shares used in computing
net income per share 7,457 7,413 7,450 7,428
======= ======== ======= ========
</TABLE>
See notes to condensed financial statements.
<PAGE> 3
CONTINENTAL CIRCUITS CORP.
CONDENSED BALANCE SHEETS
(In thousands, except share data)
<TABLE>
<CAPTION>
May 3, July 31,
1997 1996
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Assets (Unaudited)
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 1,068 $ 3,851
Accounts receivable - net 16,686 15,114
Inventories 7,204 4,796
Prepaid expenses and other current assets 2,225 1,213
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Total current assets 27,183 24,974
Property, plant, and equipment - net 44,520 34,117
Other assets 81 495
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Total assets $71,784 $59,586
======= =======
Liabilities and shareholders' equity
Current liabilities:
Accounts payable $12,510 $ 7,193
Accrued expenses and taxes 3,027 2,052
Current portion of long-term debt 1,000 1,000
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Total current liabilities 16,537 10,245
Long-term debt, less current portion 3,583 3,333
Deferred income taxes 1,976 1,976
Shareholders' equity:
Common stock 72 72
Additional paid-in capital 10,296 10,077
Retained earnings 39,320 33,883
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Total shareholders' equity 49,688 44,032
------- -------
Total liabilities and shareholders' equity $71,784 $59,586
======= =======
</TABLE>
See notes to condensed financial statements.
<PAGE> 4
CONTINENTAL CIRCUITS CORP.
STATEMENTS OF CASH FLOWS
(Unaudited)
(In thousands)
<TABLE>
<CAPTION>
Nine months ended
May 3, April 30,
------------------------
1997 1996
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<S> <C> <C>
Operating activities
Net income $ 5,629 $ 5,933
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation 4,453 3,782
Deferred income taxes -- --
Provision for doubtful accounts (credit) (66) 318
Changes in operating assets and liabilities:
Accounts receivable (1,506) (1,342)
Inventories (2,158) (550)
Prepaid expenses, income taxes and other (1,012) (825)
Other assets 222 64
Accounts payable 5,317 (1,083)
Accrued expenses and taxes 505 (178)
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Net cash provided by operating activities 11,384 6,119
Investing activities
Purchases of property, plant, and equipment (12,036) (6,613)
Purchase of a business (2,600) --
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Net cash (used) by investing activities (14,636) (6,613)
Financing activities
Principal payments on long-term debt (750) (774)
Borrowings under long-term debt and line of credit 1,000 1,857
Proceeds from issuance of common stock, net
of issuance costs 219 140
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Net cash provided by financing activities 469 1,223
-------- -------
Net increase in cash and cash equivalents (2,783) 729
Cash and cash equivalents at beginning of period 3,851 2,038
-------- -------
Cash and cash equivalents at end of period $ 1,068 $ 2,767
======== =======
</TABLE>
See notes to condensed financial statements
<PAGE> 5
CONTINENTAL CIRCUITS CORP.
Notes to Condensed Financial Statements
(Unaudited)
May 3, 1997
Note 1. Basis of Presentation
The accompanying unaudited condensed financial statements have been prepared in
accordance with generally accepted accounting principles for interim financial
information and with the instructions to Form 10-Q and Article 10 of Regulation
S-X. Accordingly, they do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements. In the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have been
included. Operating results for the three month period and nine month period
ended May 3, 1997 are not necessarily indicative of the results that may be
expected for the year ended July 31, 1997.
Note 2. Inventories
The components of inventory consist of the following:
<TABLE>
<CAPTION>
May 3, July 31,
1997 1996
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(In thousands)
<S> <C> <C>
Raw material $ 784 $ 649
Work in process 4,635 2,487
Finished goods 1,785 1,660
------ ------
$7,204 $4,796
====== ======
</TABLE>
<PAGE> 6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF OPERATIONS
Comparison of Three Months ended May 3, 1997 and April 30, 1996
Net sales increased 20.4% to $31.9 million for the three months ended May
3, 1997 from $26.5 million for the three months ended April 30, 1996. The
combination of the effects of production levels, pricing per layer, and a
continuing mix shift toward higher layer count, more complex products resulted
in the increase. The Company's principal customers are OEM manufacturers and
contract manufacturers of electronic devices that are subject to rapid
technological change, product obsolescence and economic cycles.
Gross profit as a percent of net sales increased to 19.3% for the three
months ended May 3, 1997 from 16.6% for the three months ended April 30, 1996.
The improvement was attributable to labor productivity increases, cost recovery
efforts and improved fixed cost utilization due to the increased production
volume.
Selling, general and administrative expenses increased 14.6% to $2.3
million for the three months ended May 3, 1997 from $2.0 million for the three
months ended April 30, 1996. This increase was due to additional marketing and
sales costs associated with higher shipment levels, and administrative expenses
supporting the recruiting and training of additional personnel.
Income from operations increased 60.3% to $3.9 million, or 12.1% of net
sales, for the three months ended May 3, 1997 from $2.4 million, or 9.1% of net
sales, for the three months ended April 30, 1996 as a result of the above
factors.
Net interest expense decreased 45.8% to $83,000 for the three months ended
May 3, 1997 from $153,000 for the three months ended April 30, 1996. This
decrease was a result of higher interest earned during the three months ended
May 3, 1997 than during the three months ended April 30, 1996, and $1.0 million
of long-term debt financed at a favorable interest rate.
Income before income taxes was unfavorably impacted by an other expense
increase of $40,000 as a result of a final charge of legal and other
professional costs associated with the abandoned acquisition of Sigma Circuits,
Inc.
Income taxes increased 50.2 % to $1.4 million for the three months ended
May 3, 1997 from $900,000 for the three months ended April 30, 1996 as a result
of higher income before taxes. Taxes for the three month period ending May 3,
1997 reflect a year-to-date adjustment for tax benefits associated with the
Company's foreign sales corporation. This adjustment reduces the effective tax
rate by one percent to approximately 38% for the 1997 period.
Comparison of Nine Months ended May 3, 1997 and April 30, 1996
Net sales increased 5.6% to $88.6 million for the nine months ended May 3,
1997 versus $83.8 million for the nine months ended April 30, 1996 due to
shipments of higher layer count, more complex, higher priced products.
Gross profit as a percent of net sales decreased to 17.8% for the nine
months ended May 3, 1997 from 19.5% for the nine months ended April 30, 1996.
Gross profit was negatively impacted during the 1997 period by the cancellation
of a high margin customer program and lower productivity and training costs
associated with direct labor increases to support business growth.
<PAGE> 7
Selling, general and administrative expenses remained flat at $6.1 million
during both reporting periods, with no significant spending variations.
Income from operations decreased 5.9% to $9.6 million for the nine months
ended May 3, 1997 from $10.3 million for the nine months ended April 30, 1996 as
a result of the above factors.
Net interest expense decreased 53.8% to $206,000 for the nine months
ended May 3, 1997 from $446,000 for the nine months ended April 30, 1996. This
decrease was a result of higher interest earned during the nine months ended May
3, 1997 due to a larger average cash balance than during the nine months ended
April 30, 1996, and $1.0 million of long-term debt financed at a favorable
interest rate.
Other expense increased $340,000 as a result of the one-time charge of
legal and other professional costs associated with the abandoned acquisition of
Sigma Circuits, Inc.
Income taxes decreased 11.1% to $3.4 million for the nine months ended May
3, 1997 compared to $3.9 million for the nine months ended April 30, 1996 as a
result of lower income before taxes and an adjustment reducing the effective tax
rate by one percent to approximately 38% to reflect benefits associated with the
Company's foreign sales corporation.
LIQUIDITY AND CAPITAL RESOURCES
The Company has historically financed its operations primarily through
cash generated from operations, although such funds have been supplemented by
borrowings under a line of credit and term notes as needed. The Company's
principal uses of cash have been to pay operating expenses, make capital
expenditures and service debt.
Cash generated from operations totaled $11.4 million and $6.1 million for
the nine months ended May 3, 1997 and April 30, 1996 respectively. Major cash
uses include inventory growth of $2.2 million, and accounts receivable of $1.5
million for the nine months ended May 3, 1997, accounts receivable growth of
$1.3 million and accounts payable of $1.1 million for the nine months ended
April 30, 1996. The 1997 inventory increase was in work in process to support
the sales growth. Accounts receivable growth for the nine month period ended May
3, 1997 was consistent with increasing sales. The accounts receivables growth
during the period ending April 30, 1996 was primarily a single customer which
represented less than 1.5% of overall sales.
Capital expenditures totaled $14.6 million and $6.6 million for the nine
months ended May 3, 1997 and April 30, 1996 respectively. Capital expenditures
for the nine months ended May 3, 1997 were for purchase and initial fit up of
two additional buildings in Phoenix, routine replacements and purchase of a
division of Radian International, LLC for $2.6 million in cash. Capital
expenditures for the nine months ended April 30, 1996 resulted from routine
replacements and completion of the fiscal 1995 planned capacity expansion.
Purchases were financed using both cash generated from operations and the
Company's credit facility.
The Company believes that funds generated from operations and borrowing
availability under the existing line of credit agreement will be sufficient for
routine equipment replacement through fiscal 1997. The Company is evaluating the
need to increase its credit facility to finance its growth strategy over 1997
and 1998. The Company believes it will be successful in negotiating the
increased credit facilities.
FORWARD-LOOKING STATEMENTS
The statements contained in this document regarding management's
anticipation of sufficiency of funds and negotiation of credit facilities
constitute "forward-looking" statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Management's anticipation is based
upon assumptions regarding the
<PAGE> 8
market in which the Company operates, the cost and amount of equipment required
for replacements and growth, and the availability and qualification for credit.
Any of these assumptions could prove inaccurate, and therefore there can be no
assurance that the forward-looking information will prove to be accurate.
<PAGE> 9
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
See Exhibit Index following the signature page, which is
incorporated herein by this reference.
<PAGE> 10
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CONTINENTAL CIRCUITS CORP.
(Registrant)
Date: June 17, 1997 By: /s/ Frederick G. McNamee, III
-----------------------------
Frederick G. McNamee, III
Chairman of the Board, President
and Chief Executive Officer
Date: June 17, 1997 By: /s/ Joseph G. Andersen
-----------------------------
Joseph G. Andersen
Vice-President of Finance, Chief Financial
Officer, Secretary and Treasurer
<PAGE> 11
EXHIBIT INDEX
TO
CONTINENTAL CIRCUITS CORP.
FORM 10-Q
QUARTERLY REPORT FOR THE QUARTER ENDED MAY 3, 1997
(Commission File 0-25554)
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
3.1 Certificate of Incorporation of Registrant, as amended (1)
3.2 Bylaws of Registrant, as amended (1)
10 Purchase Agreement dated April 7, 1997 between Radian
International, LLC and CCIR of Texas Corp.
11 Statement re: computation of net income per share
27 Financial Data Schedule
</TABLE>
- ----------------------
(1) Incorporated by reference to identically numbered exhibit in Registrant's
registration statement on Form S-1 (SEC File No. 33-88368), as amended,
initially filed on January 9, 1995.
<PAGE> 1
EXHIBIT 10
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), is made and entered
into this 7th day of April, 1997 by and between Radian International LLC, a
Delaware limited liability company ("Seller"), and CCIR of Texas Corp., a Texas
corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller owns and operates an electronic panel business (the
"Panel Business") located at 15508 Bratton Lane, Austin, Texas (the "Bratton
Lane Facility"); and
WHEREAS, subject to the terms and conditions of this Agreement, Seller
desires to sell, and Purchaser desires to purchase, certain assets used or held
for use in the operation of the Panel Business as specified in this Agreement;
and
WHEREAS, the parties wish to make certain agreements related to such
purchase and sale and certain other agreements;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the
parties, intending to be legally bound, agree as follows:
SECTION 1. PURCHASE OF ASSETS.
1.1 ASSETS. Seller agrees to sell, assign, convey, transfer and deliver
to Purchaser, and Purchaser agrees to purchase from Seller, all of Seller's
right, title and interest in and to the following assets and property, tangible
and intangible, (the "Assets"):
(a) EQUIPMENT, FURNITURE, ETC. The equipment, machinery,
vehicles, furniture, furnishings, office equipment, tools, racks,
leasehold improvements, fixtures and other tangible personal property
listed or described on Schedule 1.1(a);
(b) MATERIALS AND SUPPLIES. All materials and supplies owned
by Seller related to the Panel Business and located at the Bratton Lane
Facility as of the Closing (as hereinafter defined) except for certain
gold as described below in Section 1.2(f);
<PAGE> 2
(c) CONTRACTS AND PROPOSALS. The rights of Seller under the
contracts, proposals, agreements, arrangements and understandings
listed or described on Schedule 1.1(c) (the "Transferred Contracts");
(d) WORK IN PROCESS. All work in process of the Panel Business
under the agreements with customers included in the Transferred
Contracts;
(e) RECORDS AND CUSTOMER LISTS. All records and customer lists
relating to the Panel Business except for the records described in
Section 1.2(b);
(f) GOODWILL. All goodwill associated with the Panel Business
or represented by the Assets; and
(g) SMT SUBLEASE. If appropriate under Section 7.1(g), the
sublandlord's interest in and to that certain Sublease Agreement (the
"SMT Sublease") between Seller and The SMT Centre of Texas, Inc., a
Texas corporation ("SMT").
1.2 EXCLUDED ASSETS. Notwithstanding anything in this Agreement to the
contrary, the Assets shall not include, and Seller shall retain as its property,
any assets not specifically described in Section 1.1, including without
limitation the following assets (collectively the "Excluded Assets"):
(a) CASH, ACCOUNTS RECEIVABLE, ETC. All cash and cash
equivalents at the time of Closing (as hereinafter defined), bank
accounts and all accounts receivable generated prior to the time of
Closing related to the Panel Business;
(b) FINANCIAL AND TAX RECORDS. Seller's financial and tax
books and records, including any tax returns;
(c) RIGHTS UNDER AGREEMENT. All of Seller's rights under this
Agreement including, without limitation, the right of Seller to receive
the Purchase Price (as hereinafter defined);
(d) REFUNDS. All refunds relating to any federal, state, local
or foreign taxes paid by Seller prior to the Closing Date;
(e) RADIAN. The name "Radian" or "Radian International" or any
trademark, trade name or service mark or similar rights associated with
such name or any other name containing "Radian" or any derivative
thereof; and
2
<PAGE> 3
(f) GOLD. All inventory of gold that, at the time of the
Closing, is outside of the plating equipment described on Schedule
1.1(a); it being understood and agreed that any gold inside of such
plating equipment at the time of the Closing shall be included in the
Assets sold hereunder.
SECTION 2. ASSUMPTION OF LIABILITIES.
2.1 ASSUMED LIABILITIES. Subject to the terms and conditions set forth
in this Agreement, Purchaser is assuming and agrees to pay, perform and
discharge the liabilities and obligations of Seller under the Transferred
Contracts as the same exist on the Closing Date or arise thereafter (the
"Assumed Liabilities").
2.2 EXCLUDED LIABILITIES. Except for the Assumed Liabilities, no
obligation or liability of Seller or relating to the business of Seller or to
the Assets, of any nature whatsoever (whether express or implied, fixed or
contingent, liquidated or unliquidated, known or unknown, accrued, due or to
become due), is being assumed by Purchaser, nor shall Purchaser be liable to
pay, perform or discharge any such obligation or liability, nor shall the Assets
be subject to any such obligation or liability (all such obligations or
liabilities other than the Assumed Liabilities are referred to as the "Excluded
Liabilities").
SECTION 3. PURCHASE PRICE; PAYMENT OF PURCHASE PRICE; CLOSING.
3.1 PURCHASE PRICE.
(a) Subject to adjustment pursuant to Section 3.1(b), the
purchase price for the Assets to be conveyed to Purchaser pursuant to
Section (the "Purchase Price") shall be Two Million Six Hundred
Thousand Dollars and No Cents ($2,600,000.00).
(b) If the value of the gold inside of the plating equipment
described on Schedule 1.1(a) at the time of Closing (the "Closing Gold
Value") is less than $250,000, then the Purchase Price shall be reduced
dollar for dollar for every dollar of Closing Gold Value below
$250,000. If the Closing Gold Value is greater than $250,000, then the
Purchase Price shall be increased dollar for dollar for every dollar of
Closing Gold Value greater than $250,000. The Closing Gold Value shall
be determined by the parties as soon as reasonably possible following
the Closing. If such determination results in an adjustment of the
Purchase Price hereunder, the party owing funds as a result of the
adjustment shall pay such funds to the other party promptly after such
determination is made.
3
<PAGE> 4
3.2 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid at the
Closing by bank wire transfer of immediately available funds to an account of
Seller designated by Seller.
3.3 ALLOCATION OF PURCHASE PRICE. Each party agrees that the Purchase
Price (taking into account transaction costs paid by such party) shall be
allocated, for tax purposes, among the Assets as described in Schedule 3.3 and
in a manner consistent with the provisions of Section 1060 of the United States
Internal Revenue Code of 1986, as amended (the "Code") and all regulations
promulgated thereunder. Each of the parties hereto agrees to report this
transaction for federal tax purposes in accordance with the provisions of this
Section 3.3, and shall not take any position or action inconsistent therewith
upon examination of any tax return, in any refund claim, in any litigation,
investigation or otherwise; provided, however, that if, in any audit of any tax
return of a party, the fair market values are finally determined to be different
from Schedule 3.3, the party may (but shall not be obligated to) take any
position or action consistent with the fair market values as finally determined.
3.4 TIME AND PLACE OF CLOSING. The Closing hereunder ("Closing") shall
occur at 3:30 p.m. on April 7, 1997 or such other time as shall be agreed by the
parties (the "Closing Date") at the offices of Graves, Dougherty, Hearon &
Moody, 515 Congress Avenue, Suite 2300, Austin, Texas 78701 or such other place
as shall be agreed by the parties.
3.5 CLOSING DOCUMENTS. At the Closing, Seller and Purchaser shall
execute and deliver all such deeds, bills of sale, endorsements, assignments and
other instruments of assignment, transfer and conveyance as shall be necessary
to transfer, assign and convey to Purchaser all of the Assets to be transferred,
assigned and conveyed under this Agreement, together with all consents required
hereunder and all documents otherwise required under this Agreement (the
"Closing Documents"), including the following:
(a) a Bill of Sale in form and substance satisfactory to the
parties respecting Seller's sale, transfer and conveyance of the
Assets;
(b) an Assumption of Liabilities in form and substance
satisfactory to the parties respecting Purchaser's assumption of the
Assumed Liabilities;
(c) Seller's sublease pursuant to Section 7.1(f);
(d) Either the SMT Sublease or the SMT Assignment pursuant to
Section 7.1(g);
4
<PAGE> 5
(e) evidence satisfactory to Seller of the due corporate
authorization by Purchaser of its purchase of the Assets and of the
execution, delivery and performance by it of this Agreement;
(f) evidence satisfactory to Purchaser of the due limited
liability company authorization by Seller of its sale of the Assets and
of the execution, delivery and performance by it of this Agreement;
(g) Seller's certificate pursuant to Section 7.1(a);
(h) Opinion of counsel for Seller pursuant to Section 7.1(b);
(i) Purchaser's certificate pursuant to Section 7.2(a); and
(j) Opinion of counsel for Purchaser pursuant to Section
7.2(b).
3.6 FURTHER ASSURANCES. After the Closing Date, Seller will execute and
deliver or cause to be executed and delivered, at its expense, any instruments
of conveyance and transfer and will take any other action Purchaser reasonably
requests to vest more effectively in Purchaser beneficial and record title to
the Assets and to put Purchaser in actual possession and operating control of
the Assets and, in the case of any contracts and rights, if any, to be
transferred hereunder to Purchaser but which cannot be transferred effectively
without the consent of third parties, to assure to Purchaser the benefits
thereof. Nothing contained in this Agreement shall constitute an agreement to
assign any account, claim, contract, commitment, sales order or purchase order
or any claim, right or benefit arising thereunder or resulting therefrom if an
attempted assignment thereof, without the consent of a third party thereto,
would constitute a breach thereof or in any way affect the rights of Purchaser
or Seller thereunder. Seller will cooperate with Purchaser in any reasonable
arrangement desired to provide for the realization by Purchaser of the benefits
after the Closing under any such accounts, claims, contracts, leases,
commitments, sales orders or purchase orders, including enforcement for the
benefit of Purchaser, at Purchaser's expense, of any and all rights of Seller
against a third party thereto arising out of the breach or cancellation by such
third party or otherwise. Purchaser will cooperate with Seller in any reasonable
arrangement desired to provide for the satisfaction by Seller of any of its
obligations under any such accounts, claims, contracts, commitment, sales orders
or purchase orders, including performance by Purchaser of such obligations as
subcontractor to Seller for consideration of any amounts received by Seller
after the Closing that constitute payments under such accounts, claims,
contracts, commitments, sales orders or purchase orders for post-Closing
activities.
3.7 EMPLOYEE MATTERS. Purchaser agrees to make offers of employment to
the employees associated with the Panel Business listed in Schedule 3.7 hereto
(the
5
<PAGE> 6
"Employees"), at their current salary, and with other benefits comparable to
current benefits of similarly situated employees of Purchaser. Seller shall
cause the Radian International LLC 401(k) Thrift Plan (the "RILLC Plan") to
fully vest each Employee employed by Purchaser with respect to each account of
such Employee in the RILLC Plan. Within one hundred twenty (120) days following
the Closing, the parties shall cause a plan to plan transfer of all accounts of
each Employee in the RILLC Plan to the Continental Circuits Corp. 401(k)
Retirement Plan. As soon as practicable following the Closing, Seller shall pay
to Purchaser the dollar amount of all vacation time accrued prior to the Closing
Date with respect to Employees accepting Purchaser's offer of employment based
upon the current pay rates shown in Schedule 3.7.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents
and warrants to Purchaser as follows:
4.1 CORPORATE ORGANIZATION. Seller is a limited liability company duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has the power to enter into this Agreement and to carry out the
transactions contemplated hereby. Seller is duly qualified to do business as a
foreign limited liability company in Texas and is in good standing in Texas.
4.2 AUTHORIZATIONS, ETC. The execution and delivery of this Agreement
by Seller and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary limited liability company action on the part of
Seller. This Agreement and the Closing Documents to which Seller is a party have
been duly executed and delivered by Seller and constitute the legal, valid and
binding obligations of Seller, enforceable against Seller in accordance with
their terms.
4.3 NO VIOLATION. The execution and delivery of this Agreement by
Seller, and the consummation by Seller of the transactions contemplated herein
will not conflict with or result in the breach or violation of any of the terms
or conditions of, or constitute (or with notice or lapse of time or both would
constitute) a default under, (a) the Certificate of Formation or Limited
Liability Company Agreement of Seller, (b) any instrument, contract or other
agreement to which Seller or the Panel Business is a party or by which Seller or
the Panel Business is bound or which otherwise affects the Panel Business or the
Assets except as set forth in Schedule 4.3, (c) any provision of law, statute,
rule or regulation of any court or governmental authority to which Seller or the
Panel Business is subject, or (d) any judgment, decree, franchise, order,
license or permit applicable to Seller or the Panel Business except as set forth
in Schedule 4.3. Except as set forth in Schedule 4.3, no consent, approval,
license or authorization of any third party, governmental agency, commission,
board or public authority is required in connection with the execution, delivery
and performance of this Agreement by Seller.
4.4 TITLE TO ASSETS. Except as set forth on Schedules 4.3 and 4.4, and
except for assets which are currently being leased as described in Schedule
1.1(c),
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Seller has good and valid title to all of the Assets, and on the Closing Date
will have complete and unrestricted power and the unqualified right to sell,
assign, transfer, convey and deliver to the Purchaser, and will transfer and
convey to the Purchaser at the Closing, and the Purchaser will acquire at the
Closing, good and valid title to the Assets free and clear of any lease, lien,
security interest, claim, charge, or encumbrance whatsoever.
4.5 FINANCIAL INFORMATION AND ABSENCE OF UNDISCLOSED LIABILITIES.
(a) Seller has heretofore delivered, or caused to be
delivered, to Purchaser the unaudited balance sheets of the Panel
Business as at the last day of December in each of 1994, 1995 and 1996
and the notes thereto, together with the unaudited statements of
operations for the years then ended (the "Panel Financial Statements").
The Panel Financial Statements are complete and correct in all material
respects and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the
periods covered thereby. The balance sheets included in the Panel
Financial Statements present fairly the financial position of the Panel
Business as of the respective dates thereof, and the statements of
operations included in the Panel Financial Statements present fairly
the results of operations and changes in financial position of the
Panel Business for the respective periods indicated.
(b) Other than as specifically disclosed in the Panel
Financial Statements or in this Agreement including the schedules
hereto, neither Seller nor the Panel Business has any liabilities or
obligations related to the Panel Business of any nature, whether known
or unknown and whether accrued, absolute, contingent or otherwise, and
whether due or to become due, including, without limitation,
liabilities for taxes due or to become due for any period prior to the
Closing Date, or arising out of transactions entered into or any state
of facts existing prior to such date.
(c) Except as described in Schedule 4.5, since January 1,
1997, neither Seller nor to the knowledge of Seller any affiliate of
Seller has, to the extent the Panel Business or any of the Assets will
be affected thereby:
(i) undergone or otherwise experienced any change in
its condition (financial or other), properties, assets,
liabilities, business, operations or prospects other than
changes in the ordinary course of business (which changes in
the ordinary course of business have not been materially
adverse);
(ii) subjected any of its properties or assets,
tangible or intangible, to any mortgage, pledge, lien, charge
or encumbrance of any
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kind, except (1) liens for taxes, assessments and other
governmental charges or levies, the payment of which is not
past due or as to which it is diligently contesting in good
faith and by appropriate proceedings either the amount thereof
or the liability therefor or both, (2) mechanic's, workmen's,
repairmen's, warehousemen's, vendor's or carrier's liens, or
other similar liens arising in the ordinary course of business
and securing sums which are not past due, or deposits or
pledges to obtain the release of any such lien, and (3)
easements, encumbrances and security interests which do not
materially impair the use of such property affected thereby;
(iii) acquired or disposed of any assets or
properties of material value except in the ordinary course of
business;
(iv) forgiven or canceled any debts or claims, or
waived any rights except in the ordinary course of business;
(v) entered into any material transaction other than
in the ordinary course of business;
(vi) granted to any Employee any increase in
compensation in any form in excess of the amount thereof in
effect as of December 31, 1996 (other than ordinary merit
increases consistent with past practice) or any severance or
termination pay (other than in minor amounts consistent with
past practice), or entered into any written employment
agreement or arrangement with any Employee;
(vii) entered into, adopted or amended in any respect
any collective bargaining agreement or adopted or amended any
bonus, profit sharing, compensation, stock option, pension,
retirement, deferred compensation, insurance or other similar
plan, agreement, trust or fund for the benefit of the
Employees (whether or not legally binding);
(viii) suffered any damage, destruction or loss
(whether or not covered by insurance) that materially and
adversely affects the condition (financial or other),
properties, assets, business, operations or prospects of the
Panel Business;
(ix) suffered any strike or other labor trouble
materially and adversely affecting the business, operations or
prospects of the Panel Business;
(x) suffered any loss of employees or customers that
materially and adversely affects or could reasonably be
expected to materially and adversely affect the Panel
Business;
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(xi) incurred any liability or obligation (whether
absolute, accrued, contingent or otherwise) material to the
Panel Business other than in the ordinary course of business;
or
(xii) conducted its business in other than the usual
and ordinary manner.
4.6 INSURANCE. The Assets and the operations of the Panel Business of
an insurable nature have been continuously insured by Seller since the date of
opening of the Panel Business. Seller has provided to Purchaser a true, correct
and complete copy of all current insurance policies relating to the Panel
Business.
4.7 LITIGATION. To the knowledge of Seller, there are no lawsuits,
proceedings, actions, arbitrations, claims or governmental investigations,
inquiries or proceedings pending or threatened, at law or in equity, against
Seller that relate to the Panel Business, nor is there any basis known to Seller
for any such action, and to the knowledge of Seller there is no action, suit or
proceeding by any person or agency pending or threatened which questions the
legality, validity or propriety of the transactions contemplated hereby.
4.8 COMPLIANCE WITH LAWS, LICENSES. Except as described in the
documents referenced in the first clause of Section 4.13 or on Schedule 4.8,
Seller and the Panel Business have complied in all material respects with all
laws, regulations and orders, the noncompliance with which would adversely
affect the Assets or the operation of the Panel Business. Seller and the Panel
Business hold all licenses, permits, registrations, approvals, certificates,
contracts, consents, accreditations and franchises ("Licenses and Permits")
required to be held by them to own and operate the Assets and to conduct and
operate the Panel Business in compliance in all material respects with all
applicable laws and regulations. Schedule 4.8 describes each License and Permit
and a true and correct copy of each has previously been delivered to Purchaser
by Seller. All such Licenses and Permits are in full force and effect. To the
knowledge of Seller, Seller is not in default in any material respect under any
such License and Permit. No notice from any authority in respect to revocation,
termination, suspension or limitation of any License or Permit has been received
by Seller, nor is Seller aware of the proposed or threatened issuance of any
such notice. There is no basis known to Seller for any such action which would
have an adverse effect upon the liabilities, financial condition, results of
operation, business or prospects of the Assets or upon Purchaser's right to
conduct the business of the Panel Business as presently conducted. Except as
described on Schedule 4.8, Seller has not received any written inquiries
concerning these Licenses or Permits or the subject matter thereof from any
third party.
4.9 WAGE CLAIMS. To the knowledge of Seller, Purchaser will not be
subjected to any claim or liability for severance pay as a result of this
transaction. To
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the knowledge of Seller, no present or former employee of Seller employed in
connection with the Panel Business has any claim (whether under federal or state
law, under any employment agreement or otherwise) on account of or for (a)
overtime pay for any period on or before the Closing Date, (b) wages or salary
or (c) sick pay, severance pay, claims for unlawful discharge, vacation pay,
time off or pay in lieu thereof, except for accrued vacation time as described
in Schedule 3.7.
4.10 TAX RETURNS AND LIABILITIES. All tax returns relating to federal
and state income tax respecting the Panel Business that are due to have been
filed in accordance with applicable laws have been duly filed, and all taxes
shown to be due on such returns have been paid in full. The amounts so paid have
been adequate to pay all taxes, including interest and penalties, due and
payable by Seller for all periods covered by those tax returns. To the knowledge
of Seller no deficiencies for any of such taxes have been asserted or
threatened, and no audit of any such returns is currently underway or
threatened. There are no outstanding agreements by Seller for the extension of
time for the assessment of any such tax.
4.11 CONTRACTS AND COMMITMENTS. Set forth in Schedule 4.11 is a
complete and correct list as of the date hereof of all agreements, contracts and
commitments of the following types, written or oral, that relate solely to the
Panel Business and to which Seller is a party or by which it or any of its
properties is bound as of the date hereof: (a) mortgages, indentures, security
agreements and other agreements and instruments relating to the borrowing of
money; (b) employment and consulting agreements; (c) collective bargaining
agreements; (d) bonus, profit-sharing, compensation, stock option, pension,
retirement, deferred compensation, insurance or other similar plans, agreements,
trusts or funds for the benefit of employees (whether or not legally binding);
(e) sales agency, manufacturer's representative or distributorship agreements
that are not cancelable by Seller without penalty on 60 or fewer days notice;
(f) agreements, orders or commitments for the purchase by Seller of raw
materials, supplies or finished products not in the ordinary course of business;
(g) agreements, orders or commitments for the sale by the Panel Business of its
services not in the ordinary course of business; (h) licenses of patents,
trademarks and other industrial property rights; (i) agreements or commitments
for capital expenditures in excess of $10,000 (it being warranted that all
unlisted such agreements or commitments do not exceed $25,000 in the aggregate
for all projects); (j) brokerage or finders' agreements; (k) agreements or
instruments relating to the extension of credit by Seller not in the ordinary
course of business; (l) other agreements or contracts with any person who is a
shareholder, officer or director of Seller or an affiliate of any such
shareholder, officer or director; and (m) other agreements, contracts and
commitments not in the ordinary course of business which in any one case
involves payments or receipts of more than $25,000. Complete and correct copies
of all written agreements, contracts and commitments (together with all
amendments thereto) and accurate written descriptions of any oral agreements so
listed have been made available to Purchaser. To the knowledge of Seller such
agreements, contracts and commitments are in full force and
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effect and all parties to such agreements, contracts and commitments have in all
material respects performed all obligations required to be performed by them to
date and are not in default in any material respect. There are no persons
holding powers of attorney from Seller giving them authority to act with respect
to the Panel Business.
4.12 EMPLOYEE BENEFIT PLANS. The RILLC Plan is the successor plan to
the Radian Corporation 401(k) Thrift Plan, which received its most recent
favorable determination letter from the Internal Revenue Service on June 28,
1995. Seller intends to maintain the tax-exempt status of the RILLC Plan. To the
knowledge of Seller, the RILLC Plan is qualified under sections 401(a) and
501(a) of the Code. To the knowledge of Seller there are no pending or
threatened investigations, deficiency or termination proceedings involving the
RILLC Plan or any other profit sharing, pension, employee benefit, welfare or
other similar plan or trust to which Seller is a party or by which Seller is
bound that affects any of the Employees or of which any of the Employees is a
participant or beneficiary (the "Plans"). To the knowledge of Seller there are
no pending or threatened claims, suits or other proceedings by any employee of
the Panel Business, former employee of the Panel Business, beneficiary or spouse
of any of the above involving the Plans or any rights or benefits under the Plan
other than ordinary and usual claims for benefits by participants or
beneficiaries. Seller has not to its knowledge engaged in any transaction, or
acted or failed to act in any manner for which it could be liable for any tax
under Chapter 43 of the Code, including but not limited to taxes on failure to
meet minimum funding standards, or taxes on prohibited transactions.
4.13 ENVIRONMENTAL MATTERS. Except as described in the letter dated
March 7, 1997 of Four Corners Environmental, Inc. to Quarles & Brady, including
the attachments thereto, and in the Phase II Environmental Site Assessment for
the Radian Electronics Division Bratton Lane Property dated March 1997 prepared
by Radian International LLC for Howard Goad and Andrew Cooper, Radian Electronic
Division, including all attachments and exhibits thereto, to the knowledge of
Seller (a) the operations of the Panel Business do not violate any applicable
Environmental Law (as hereinafter defined) or any restrictive covenant or third
party agreement or deed restriction (recorded or otherwise), the violation of
which could have a material adverse affect on the condition (financial or
otherwise), operations, business, assets or prospects of the Panel Business; (b)
without limitation of clause (a) above, but subject to the materiality standard
set forth therein, the past and present operations of the Panel Business are not
in violation or potential violation of any Environmental Law, or subject to any
existing, pending or threatened investigation, inquiry or proceeding by any
governmental authority or to any remedial obligations under any Environmental
Law; (c) all material notices, permits, licenses or similar authorizations, if
any, required to be obtained or filed in connection with the Panel Business,
including, without limitation, past, or present treatment, storage, disposal or
release of any Hazardous Materials or solid waste into the environment, have
been obtained or filed; (d) all Hazardous Materials (as hereinafter defined) or
solid waste generated by the Panel
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Business have, in the past been, and prior to the Closing shall continue to be,
transported, treated and disposed of in compliance with the Environmental Laws
and only by carriers maintaining valid permits under all applicable
Environmental Laws and only at treatment, storage and disposal facilities
maintaining valid permits under applicable Environmental Laws, which carriers
and facilities have been and are operating in compliance with such permits; and
(e) Seller has no material contingent liability in connection with any release,
treatment and/or disposal of any Hazardous Materials or solid waste into the
environment in connection with the Panel Business.
For purposes of this Section 4.13,
(a) "Environmental Law" means any and all statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other
governmental restrictions of any federal, state or local governmental
authority within the United States or any State or territory thereof
and which relate to:
(i) advising employees, the public and/or the
appropriate governmental or other authorities of intended or
actual releases of pollutants or Hazardous Materials,
violations of discharge limits, or other prohibitions and of
the commencement of activities, such as resource extraction or
construction, that could have a significant impact on the
environment;
(ii) providing for the proper handling, treatment
and/or disposal of any Hazardous Material, including without
limitation, preventing or reducing to acceptable levels the
release of pollutants or Hazardous Materials into the
environment and/or reducing the quantities, preventing the
release or minimizing the hazardous characteristics of any
Hazardous Material that is generated;
(iii) requiring a generator, user, transporter and/or
other entity to obtain or apply for any required governmental
approval, consent, license, permit, waiver or other
authorization issued, granted, given or otherwise made
available by or under the authority of any governmental and/or
regulatory entity or pursuant to any legal requirement
concerning or related to any Hazardous Activity;
(iv) preparing and filing any required report,
schedule and/or submission in connection with any Hazardous
Activity;
(v) reducing and/or regulating the risks inherent in
the transportation of any Hazardous Material, pollutant, oil
or other potentially harmful substance;
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(vi) protecting resources, species or ecological
amenities, including without limitation, preventing the threat
of release of any pollutant or Hazardous Material, cleaning up
any pollutant or any Hazardous Material that has been released
or paying the costs of such clean up or prevention;
(vii) making responsible parties pay governmental
entities, private parties, or groups of them, for damages done
to the health of the public or private parties or to the
environment, or permitting self-appointed representation of
the public interest to recover for injuries done to public
assets; and
(viii) providing safe and healthful working
conditions and reducing occupational safety and health
hazards, and any program, whether governmental or private
(including those promulgated or sponsored by industry
associations and insurance companies), designed to provide
safe and healthful working conditions.
(b) "Hazardous Activity" shall mean the disposal,
distribution, generation, handling, importing, management,
manufacturing, processing, production, refinement, release, storage,
transfer, transportation, treatment, disposal, or use (including any
withdrawal or other use of groundwater) of Hazardous Materials in, on,
under, about, or from the Seller's facility (prior or current) or any
part thereof into the environment, and any other act, business,
operation, or thing that unreasonably increases the danger, or risk of
danger, or poses an unreasonable risk of harm to persons or property on
or off the Seller's facility (prior or current), or that may materially
affect the value of the Assets;
(c) "Hazardous Materials" means any waste or other substance
that is listed, defined, designated, or classified as flammable,
explosive, radioactive materials, hazardous materials, hazardous
wastes, hazardous or toxic substances, a pollutant, a contaminant,
infectious wastes, or related or similar materials, asbestos or any
material containing asbestos, any admixture or solution containing any
of the foregoing, and specifically including petroleum and all
derivatives hereof or synthetic substitutes herefor or any other
substance or material as so defined and regulated by any Environmental
Law including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (49
U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery
Act (42 U.S.C., Sections 6901 et seq.) and the regulations adopted and
publications promulgated pursuant thereto.
4.14 DISCLOSURE. No representations or warranties by Seller contained
in this Agreement, the Schedules to this Agreement or any document, instrument
or certificate delivered as part of this Agreement or the Closing Documents,
contain any untrue
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statement of a material fact or omit to state a material fact necessary in order
to make the statements contained herein and therein, in light of the
circumstances under which they were made, not misleading.
4.15 BROKERS' AND FINDERS' FEES. Neither Seller nor anyone acting on
behalf of Seller has done anything to cause or incur any liability to any party
for any brokers' or finders' fees or the like in connection with this Agreement
or the transactions contemplated hereby.
4.16 EMPLOYEE RELATIONS.
(a) The list of the Employees on Schedule 3.7 is a true and
complete list of the names of all Seller's employees who are employed
exclusively in connection with Panel Business, including to the extent
applicable, their titles, rates of compensation and all other
remuneration and perquisites granted to or accrued on behalf of such
persons.
(b) None of the Employees is represented by any labor union
and there is no pending representation petition in respect thereof.
Seller is not a party to any collective bargaining agreement with
respect to the Employees.
(c) There is no unfair labor practice complaint pending
against Seller before the National Labor Relations Board or any state
or local agency with respect to the Employees.
(d) There is no pending labor strike, work stoppage, slowdown,
other labor trouble or interference with or impairment resulting from a
labor-related dispute of the Panel Business (including, without
limitation, any organizational drive).
(e) There is no labor grievance pending against Seller with
respect to the Employees.
(f) To the knowledge of Seller, all Employees are either
United States citizens or resident aliens specifically authorized to
engage in employment in the United States in accordance with all
applicable laws.
4.17 USE AND CONDITION OF ASSETS, MACHINERY AND EQUIPMENT. Except as
set forth in Schedule 4.17, the machinery and equipment included in the Assets
are in good operating condition and repair, ordinary wear excepted, and such
Assets are located at the Bratton Lane Facility.
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4.18 INTELLECTUAL PROPERTY. To the knowledge of Seller, Seller's
operation of the Panel Business does not infringe upon or violate any
intellectual property rights of any other person or entity.
4.19 LICENSES FOR THIRD PARTY SOFTWARE. As used herein the term "Third
Party Software" means all software and computer programs installed as of the
Closing Date on the computers included in the Assets and any software residing
on the control unit of the Multi-Plate 100 deep gold plating equipment included
in the Assets and the control unit of the electrolysis plating equipment
included in the Assets. Seller has delivered or will on request deliver to
Purchaser a true, correct and complete copy of license agreements for the Third
Party Software. The software or computer programs described in said licenses are
presently used by Seller as licensee under the terms of said licenses. All
royalties due under said licenses have been paid and there exists no default by
Seller under the terms of said licenses and no event has occurred which, upon
the passage of time or the giving of notice, or both, would result in any event
of default by Seller or (provided the other parties to such licenses comply with
the obligations thereunder) prevent Seller from exercising and obtaining the
benefits of any options contained therein. Seller has not pledged or otherwise
encumbered any of its rights as licensee under the terms of said licenses, all
such licenses are valid and in full force and effect, and Seller is in
compliance with the terms thereof. Seller has not received any notice of
infringement, violation or conflict of any intellectual property rights of third
parties with respect to its use of any Third Party Software.
4.20 RECORDS AND CUSTOMER LISTS. The records and customer lists of
Seller relating to the Panel Business are in all material respects complete and
correct and have been maintained in accordance with good business practices.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants to Seller as follows:
5.1 ORGANIZATION. Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Texas and has the
corporate power to enter into this Agreement and to carry out the transactions
contemplated hereby.
5.2 AUTHORIZATIONS, ETC. The execution and delivery of this Agreement
by Purchaser and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of Purchaser.
This Agreement and the Closing Documents to which Purchaser is a party have been
duly executed and delivered by Purchaser and constitute valid and binding
obligations of Purchaser, enforceable against Purchaser in accordance with their
terms.
5.3 NO VIOLATION. The execution and delivery of this Agreement by
Purchaser, and the consummation by Purchaser of the transactions contemplated
hereby will not conflict with or result in the breach or violation of any of the
terms or
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conditions of, or constitute (or with notice or lapse of time or both would
constitute) a default under, (a) the Articles of Incorporation or Bylaws of
Purchaser, (b) any instrument, contract or other agreement to which Purchaser is
a party or by which the Purchaser is bound, (c) any provision of law, statute,
rule or regulation of any court or governmental authority to which Purchaser is
subject, or (d) any judgment, decree, franchise, order, license or permit
applicable to Purchaser. No consent, approval, license or authorization of any
third party, governmental agency, commission, board, or public authority is
required in connection with the execution, delivery and performance of this
Agreement by Purchaser.
5.4 BROKERS' AND FINDERS' FEES. Neither Purchaser nor anyone acting on
behalf of Purchaser has done anything to cause or incur any liability to any
party for any brokers' or finders' fees or the like in connection with this
Agreement or any transaction contemplated hereby.
SECTION 6. COVENANTS.
6.1 COVENANTS OF SELLER. Seller hereby covenants and agrees with
Purchaser as follows:
(a) SATISFACTION OF CONDITIONS. Seller will use its reasonable
efforts to secure the satisfaction of each of the conditions to the
obligations of Purchaser set forth in this Agreement and to cause each
of the representations and warranties of Seller set forth in this
Agreement to be true and correct at the Closing Date.
(b) CONDUCT OF PANEL BUSINESS. From the date hereof to the
Closing Date, except as otherwise consented to by Purchaser in writing,
Seller will:
(i) carry on the Panel Business in, and only in, the
usual, regular and ordinary course of business substantially
the same manner as heretofore carried on and, to the extent
consistent with such business, use all reasonable efforts to
preserve intact its present business organization, keep
available the services of the Employees, and preserve the
relationships with its customers, suppliers and others having
business dealings with it to the end that their goodwill and
going business shall be unimpaired at the Closing;
(ii) maintain all of the equipment and other tangible
personal property of the Panel Business in good repair, order
and condition, except for depletion, depreciation, ordinary
wear and tear and damage by unavoidable casualty;
(iii) keep in full force and effect insurance
comparable in amount and scope to the insurance coverage now
carried related to the Panel
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Business and take such steps at Purchaser's expense as
Purchaser shall reasonably request to assure continuity of
such coverage following the Closing;
(iv) perform in all material respects all of its
respective obligations under agreements, contracts and
instruments relating to or affecting the Panel Business and
its properties and assets;
(v) maintain its books of account and records in the
usual, regular and ordinary manner;
(vi) comply in all material respects with all
statutes, laws, ordinances, rules and regulations applicable
to it with respect to the conduct of the Panel Business;
(vii) not enter into or assume any agreement,
contract or commitment of the character required to be listed
by Section 4.11 hereof;
(viii) not take, or permit to be taken, any action
which is represented and warranted in Section 4.5(c) hereof
not to have been taken since January 1, 1997; and
(ix) promptly advise Purchaser in writing of any
materially adverse change in the condition (financial or
other), operations, business or prospects of the Panel
Business.
(c) ACCESS TO INFORMATION. Seller will give to Purchaser and
its representatives full access during normal business hours to its
properties, books, records, contracts and commitments and will furnish
all such information and documents relating to the Panel Business as
Purchaser may reasonably request. In the event that this Agreement is
terminated, Purchaser will keep confidential and will not use any
information (unless readily ascertainable from public information or
sources or otherwise required by law to be disclosed) obtained
hereunder or in connection with the transactions contemplated hereby
and will promptly return to Seller all documents and other written
materials so obtained. After the Closing, Purchaser will keep such
information confidential and will not use any of such information
except to the extent required to be used in connection with Purchaser's
ownership and operation of the Panel Business.
(d) ACCOUNTING ASSISTANCE. During the period of ninety (90)
days following the Closing, Seller will provide to Purchaser as
reasonably requested by Purchaser accounting assistance in connection
with the transition of payroll service for the Employees to an
independent payroll service selected by Purchaser.
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(e) ENVIRONMENTAL ASSISTANCE. During each of the first three
months following the Closing, Seller will provide to Purchaser for no
additional consideration thirty-two (32) hours of environmental
consulting assistance by Andrew Cooper or other personnel reasonably
acceptable to Purchaser. During each of the fourth, fifth and sixth
months following the Closing, Seller will provide to Purchaser for no
additional consideration sixteen (16) hours of environmental consulting
assistance by the same person or persons. Any out-of-pocket expenses of
Seller associated with such services will be promptly reimbursed by
Purchaser.
(f) INFORMATION SYSTEM SUPPORT SERVICES. During the first
three months following the Closing, Seller will make available to
Purchaser at the Bratton Lane Facility for up to twenty (20) hours per
week, as requested by Purchaser, Joe Van Slyke or other personnel
reasonably acceptable to Purchaser to perform information system
support services. Purchaser will pay for such services on an hourly
basis at a rate reasonably acceptable to Seller and Purchaser.
(g) COMPLETION OF SEWER CONSTRUCTION. Seller will cause to be
completed, at its expense, the replumbing of the Bratton Lane Facility
currently underway to separate the current one sewer connection for the
facility into three separate sewer connections: one connection for
waste water from the Panel Business; one connection for waste water
from the operations of SMT as a subtenant of the Bratton Lane Facility;
and one connection for domestic waste water.
6.2 COVENANTS OF PURCHASER. Purchaser hereby covenants and agrees with
Seller as follows:
(a) SATISFACTION OF CONDITIONS. Purchaser will use its
reasonable efforts to secure the satisfaction of each of the conditions
to the obligations of Seller set forth in this Agreement and to cause
each of the representations and warranties of Purchaser set forth in
this Agreement to be true and correct at the Closing Date.
(b) ACCESS. Purchaser and Seller acknowledge that after the
Closing, Seller will require access to certain parts of the Bratton
Lane Facility to upfit the facility for the relocation of certain
employees of Seller required by the sale of the Panel Business. For a
period of thirty (30) days after the Closing, Purchaser shall provide
Seller with access to that portion of the Bratton Lane Facility to be
occupied by Purchaser to allow Seller to accomplish the upfit. Seller
has made available to Purchaser for its review plans and specifications
for the upfit. Seller agrees to complete the upfit within such thirty
(30) day period and to take
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reasonable precautions in pursuing the upfit to avoid interfering with
the operation of the Panel Business after the Closing. Purchaser shall
also provide Seller with access to that portion of the Bratton Home
Facility as reasonably required for completion of the sewer
construction described in Section 6.1(g).
(c) WASTEWATER DISCHARGE PERMIT. Within five (5) business days
after the Closing, Purchaser will apply for an industrial wastewater
discharge permit from the City of Austin with respect to its operation
of the Panel Business. Purchaser will exercise reasonable diligence in
pursuing the rapid approval of such permit, it being understood that
one of the responsibilities of the environmental consulting provided
under Section 6.1(e) shall be assistance in the pursuit of such permit.
Seller will provide information and additional assistance to Purchaser
reasonably requested by Purchaser with respect to such application.
(d) GOLD RECOVERY ASSISTANCE. From time to time after the
Closing, Purchaser will make available to Seller for no additional
consideration the services of Mike Holan as reasonably required by
Seller to recover the gold retained by Seller pursuant to Section 1.2.
SECTION 7. CONDITIONS PRECEDENT.
7.1 CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. All obligations of
Purchaser hereunder are subject to the fulfillment, prior to or on the Closing
Date, of each of the following conditions:
(a) REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SELLER. The
representations and warranties of the Seller contained herein shall be
true and correct at and as of the Closing with the same effect as
though made at and as of the Closing, except for changes therein
contemplated by this Agreement; the Seller shall have duly performed
and complied with all agreements and conditions required by this
Agreement to be performed or complied with by it prior to or at the
Closing; and Purchaser shall have received a certificate, dated the
Closing Date, to the foregoing effect executed by Seller.
(b) OPINION OF COUNSEL. Purchaser shall have received a
favorable opinion, addressed to Purchaser and dated the Closing Date,
of Graves, Dougherty, Hearon & Moody, a Professional Corporation,
counsel for Seller, substantially to the effect that:
(i) Seller is a limited liability company validly
existing and in good standing under the laws of the State of
Delaware and possesses the required power and authority under
its Certificate of Formation and
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<PAGE> 20
Limited Liability Company Agreement to own and lease its
properties and to carry on its business with respect to the
Panel Business;
(ii) The execution and delivery of this Agreement and
the Closing Documents to which it is a party have been duly
authorized by all necessary limited liability company action
on the part of Seller. Each of this Agreement and the Closing
Documents to which it is a party has been duly executed and
delivered by Seller. Each of this Agreement and the Closing
Documents to which Seller is a party constitutes the legal,
valid and binding obligation of Seller, enforceable against
Seller in accordance with its respective terms;
(iii) The execution and delivery of this Agreement
and the Closing Documents to which Seller is a party by Seller
will not (a) violate or constitute a default under the
Certificate of Formation and Limited Liability Company
Agreement of Seller or (b) violate any applicable state or
federal laws, rules or regulations; and
(iv) To the knowledge of such counsel, there is no
litigation, legal or administrative proceeding, governmental
investigation or any other legal action of any nature pending
or threatened against or affecting Seller, which (a) if
determined against Seller, would have a material adverse
effect on the Panel Business, Assets or operations of Seller,
(b) seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the transactions contemplated by this
Agreement or (c) questions the validity or legality of any
such transactions or seeks to recover damages or to obtain
other relief in connection with any such transactions.
In rendering their opinion, Graves, Dougherty, Hearon & Moody may rely
as to factual matters on certificates or affidavits of Seller or
officers of Seller, and may rely on such other evidence as they deem
necessary or desirable including, without limitation, opinions of other
counsel satisfactory to Purchaser. If Graves, Dougherty, Hearon & Moody
shall have relied on an opinion or opinions of other counsel, a
counterpart of each thereof shall be delivered to Purchaser at the
Closing and such counsel shall have stated in their opinion that
reliance by them and by Purchaser is justified.
(c) LITIGATION. On the Closing Date, no suit, action,
appraisal or other proceeding shall be pending or threatened before any
court or other governmental agency in which it is sought to restrain or
prohibit or to obtain damages or other relief in connection with this
Agreement or the consummation of the transactions contemplated hereby.
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<PAGE> 21
(d) ENVIRONMENT STUDY. Prior to the Closing Date Seller shall
have caused a Phase II environmental study of the premises occupied by
the Panel Business to be performed as described in Schedule 7.1(d) and
the results of such study shall be reasonably satisfactory to
Purchaser.
(e) NEW PRIME LEASE. Purchaser and HB Austin Limited
Partnership ("HB Austin") shall have entered into a lease in
substantially the form attached hereto as Schedule 7.1(e) regarding the
Bratton Lane Facility. Seller has paid in advance rent with respect to
the Bratton Lane Facility for the entire month of April. After the
Closing, Purchaser will reimburse Seller for rent, at the rate
specified in such lease for the remainder of the month of April. Other
tenant expenses under Seller's lease of the Bratton Lane Facility shall
be prorated and Seller shall be responsible for all such expenses for
the period through the Closing Date and shall pay to Purchaser any such
accrued and unpaid expenses and Purchaser shall be responsible for all
such expenses thereafter and shall reimburse Seller for any such
expenses prepaid by Seller.
(f) SELLER SUBLEASE. Purchaser and Seller shall have entered
into a sublease in substantially the same form attached hereto as
Schedule 7.1(f) regarding the ESSS space, as described in Schedule
7.1(f), within the Bratton Lane Facility.
(g) SMT SUBLEASE. At Seller's option, either (i) Purchaser and
SMT shall enter into a sublease in substantially the form attached
hereto as Schedule 7.1(g)- 1 or (ii) Seller shall assign to Purchaser
the existing Sublease Agreement between Seller and SMT in substantially
the form attached hereto as Schedule 7.1(g)-2.
7.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SELLER. All obligations
of Seller under this Agreement are subject to the fulfillment, prior to or on
the Closing Date hereof, of each of the following conditions:
(a) REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF PURCHASER.
The representations and warranties of Purchaser contained herein shall
be true and correct at and as of the Closing with the same effect as
though made at and as of the Closing; Purchaser shall have duly
performed and complied with all agreements and conditions required by
this Agreement to be performed or complied with by it prior to or at
the Closing; and Purchaser shall have delivered to Seller a certificate
to the foregoing effect dated the Closing Date and signed by the
President or a Vice President of Purchaser.
(b) OPINION OF COUNSEL. Seller shall have received a favorable
opinion, addressed to them and dated the Closing Date, of Bracewell &
Patterson, Texas counsel for Purchaser, substantially to the effect
that:
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<PAGE> 22
(i) Purchaser is a corporation validly existing and
in good standing under the laws of the State of Texas and
possesses the required corporate power and authority under its
Articles of Incorporation and Bylaws to own and lease its
properties and to carry on its business;
(ii) The execution and delivery of this Agreement and
the Closing Documents to which it is a party have been duly
authorized by all necessary corporate action on the part of
Purchaser. Each of this Agreement and the Closing Documents to
which it is a party has been duly executed and delivered by
Purchaser. Each of this Agreement and the Closing Documents to
which Purchaser is a party constitutes the legal, valid and
binding obligation of Purchaser, enforceable against Purchaser
in accordance with its respective terms; and
(iii) The execution and delivery of this Agreement
and the Closing Documents to which Purchaser is a party by
Purchaser will not (a) violate or constitute a default under
the Articles of Incorporation and Bylaws of Purchaser or (b)
violate any applicable state or federal laws, rules or
regulations.
In rendering their opinion, Bracewell & Patterson may rely as to
factual matters on certificates or affidavits of Purchaser or officers
of Purchaser, and may rely on such other evidence as they deem
necessary or desirable including, without limitation, opinions of other
counsel satisfactory to Seller. If Bracewell & Patterson shall have
relied on an opinion or opinions of other counsel, a counterpart of
each thereof shall be delivered to Seller at the Closing and such
counsel shall have stated in their opinion that reliance by them and by
Seller is justified.
(c) LITIGATION. On the Closing Date, no suit, action,
appraisal or other proceeding shall be pending or threatened before any
court or other governmental agency in which it is sought to restrain or
prohibit or to obtain damages or other relief in connection with this
Agreement or the consummation of the transactions contemplated hereby.
(d) SUBLEASE. Purchaser and Seller shall have entered into a
sublease agreement in substantially the form attached hereto as
Schedule 7.1(f) respecting Seller's sublease from Purchaser of a
portion of the Bratton Lane Facility, as described in Schedule 7.1(f).
(e) PARENT GUARANTY. Continental shall have executed and
delivered a guaranty, substantially in the form attached as Schedule
7.2(e), guarantying the obligations of Purchaser under the lease with
HB Austin referenced in Section 7.1(e).
22
<PAGE> 23
(f) OLD PRIME LEASE. Seller and HB Austin shall have entered
into a termination agreement terminating the existing lease between
Seller and HB Austin of the Bratton Lease Facility, which termination
agreement shall be on terms and conditions satisfactory to Seller.
(g) TERMINATION OF EMPLOYMENT AGREEMENTS. The employment
agreements identified as items 2, 3 and 4 of Schedule 4.11 shall have
been terminated by mutual agreement of the respective parties thereto.
SECTION 8. INDEMNIFICATION.
8.1 BY SELLER. Seller shall indemnify and hold Purchaser and the
property of Purchaser free and harmless from any and all claims, losses,
damages, injuries, and liabilities arising from or in connection with (a) any
misrepresentation or breach of warranty by Seller under this Agreement, (b) the
Plans, (c) sales tax or other tax with respect to goods sold or services
rendered by Seller (whether arising under Texas Tax Code Section 111.020 or
otherwise), (d) failure of Seller to perform duly and punctually any covenant,
agreement or undertaking by Seller contained in this Agreement or (e) the
operation of the Panel Business on or before the Closing Date (including the
handling by third parties of Hazardous Materials generated by Seller's
operations on or before the Closing Date) or Seller's ownership of the Assets
prior to the Closing Date including, without limitation, the Excluded
Liabilities.
8.2 BY PURCHASER. Purchaser shall indemnify and hold Seller and the
property of Seller free and harmless from any and all claims, losses, damages,
injuries, and liabilities arising from or in connection with (a) any
misrepresentation or breach of warranty by Purchaser under this Agreement, (b)
failure of Purchaser to perform duly and punctually any covenant, agreement or
undertaking by Purchaser contained in this Agreement or (c) the operation of the
Panel Business on or after the Closing Date or Purchaser's ownership of the
Assets after the Closing Date including, without limitation, the Assumed
Liabilities.
8.3 NOTICE; ASSUMPTION OF DEFENSE. The indemnified party will give, or
cause to be given to the indemnifying party, prompt notice (and, in the case of
third-party claims, copies of any related correspondence of pleadings) of any
claim or proceeding asserted or commenced which might result in any damage,
injury or liability subject to indemnification pursuant to this paragraph, and
the indemnifying party shall have the right to assume, to the exclusion of the
indemnified party, the defense and contest of any such action, claim or
proceeding.
8.4 LIMITATIONS. Contrary provisions hereof notwithstanding, neither
party shall be required to indemnify the other party with respect to any claim
for indemnification hereunder unless and until the aggregate amount of all
claims against the indemnifying party under this Section exceeds $25,000.00 and
then only to the
23
<PAGE> 24
extent such aggregate amount exceeds $10,000. Notwithstanding anything to the
contrary contained herein, the maximum amount of indemnification for which
Seller is required to indemnify Purchaser hereunder shall not exceed the
Purchase Price.
SECTION 9. EXPENSES. Legal, accounting and other expenses incident to
this Agreement incurred by Seller shall be paid by Seller; legal, accounting and
other expenses incurred by Purchaser shall be paid by Purchaser.
SECTION 10. DOCUMENTS. After the Closing, the parties shall cooperate
fully with each other with respect to and each shall make available to the
other, as reasonably requested, all books of account, financial records,
personnel records and other data, technical or otherwise, which relates to the
operation of the Panel Business prior to the Closing Date, and shall preserve
all such information, records and documents for a period of six (6) years from
the Closing Date. Each party agrees that if any of such information is
identified to it to be a trade secret or otherwise confidential information,
that it will take reasonable precautions to preserve the secret or confidential
nature of such information.
SECTION 11. NOTICES. Any notice or other communications required or
permitted hereunder shall be sufficiently given if sent by registered or
certified mail, postage prepaid, by Federal Express or similar service or by
fax, addressed as follows:
Seller: Radian International LLC
8501 North MoPac Blvd.
Austin, Texas 78759
Fax #(512) 454-7129
Attention: Donald M. Carlton
Purchaser: CCIR of Texas Corp.
3502 East Roeser Rd.
Phoenix, Arizona 85040
Fax #(602) 232-9157
Attention: Joseph G. Andersen
With a
copy to: Quarles & Brady
One East Camelback
Suite 400
Phoenix, Arizona 85012
Fax #(602) 230-5598
Attention: P. Robert Moya
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<PAGE> 25
or such other addresses as shall be furnished in writing by any of the parties
and any such notice or communication shall be deemed to have been given as of
the date so expressed or faxed and three days after the date so mailed (if
mailed).
SECTION 12. MISCELLANEOUS.
12.1 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be one and the same Agreement.
12.2 SURVIVAL. All representations, warranties, covenants, agreements
and indemnifications made by any party hereto in or pursuant to this Agreement,
or in any instrument or certificate delivered pursuant thereto, shall be deemed
to have been material and relied upon by the parties to which made and shall
survive the execution, delivery and performance of this Agreement, the Closing
hereunder, and any investigations made by or on behalf of any party hereto at
any time.
12.3 HEADINGS. The headings in this Agreement are for convenience only
and shall not affect the construction hereof.
12.4 BINDING UPON SUCCESSORS. All terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the successors and assigns of the parties hereto.
12.5 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of Texas.
12.6 EXHIBITS AND SCHEDULES. The following exhibits and schedules are
attached hereto and incorporated herein by this reference:
Schedule 1.1(a) - Furniture and Equipment
Schedule 1.1(c) - Contracts and Proposals
Schedule 3.3 - Allocation of Purchase Price
Schedule 3.7 - Employees
Schedule 4.3 - Consents
Schedule 4.4 - Title to Assets
Schedule 4.5 - Changes in Condition, Etc.
Schedule 4.8 - Licenses and Permits
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<PAGE> 26
Schedule 4.11 - Contracts and Commitments
Schedule 4.17 - Condition of Assets
Schedule 7.1(d) - Environmental Study
Schedule 7.1(e) - New Prime Lease
Schedule 7.1(f) - Seller Sublease
Schedule 7.1(g)-1 - New SMT Sublease
Schedule 7.1(g)-2 - SMT Sublease Assignment
Schedule 7.2(e) - Parent Guaranty
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by a duly authorized officer on the date first above written.
PURCHASER
CCIR OF TEXAS CORP.
By: /s/ FREDERICK G. MCNAMEE, III
_____________________________________
Name: Frederick G. McNamee, III
Title: President
SELLER
RADIAN INTERNATIONAL LLC
By: /s/ DONALD M. CARLTON
_____________________________________
Name: Donald M. Carlton
Title: President
26
<PAGE> 1
EXHIBIT 11
CONTINENTAL CIRCUITS CORP.
STATEMENT RE: COMPUTATION OF NET INCOME PER SHARE
(Unaudited)
(In thousands, except per share data)
<TABLE>
<CAPTION>
Three months ended Nine Months Ended
May 3, April 30, May 3, April 30,
-------------------------- ------------------------
1997 1996 1997 1996
------ ------ ------ ------
<S> <C> <C> <C> <C>
Weighted average shares outstanding (1) 7,457 7,413 7,450 7,428
Net income $2,379 $1,380 $5,629 $5,933
Net income per share $ 0.32 $ 0.19 $ 0.76 $ 0.80
</TABLE>
- --------------------------
(1) Common stock equivalents, which were dilutive, were included in the
computation of weighted average number of shares outstanding.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
REGISTRANT'S FORM 10-Q FOR THE QUARTERLY PERIOD ENDED MAY 3, 1997 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-Q.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUL-31-1997
<PERIOD-END> MAY-03-1997
<CASH> 856
<SECURITIES> 212
<RECEIVABLES> 16,787
<ALLOWANCES> 101
<INVENTORY> 7,204
<CURRENT-ASSETS> 27,183
<PP&E> 89,173
<DEPRECIATION> 44,653
<TOTAL-ASSETS> 71,784
<CURRENT-LIABILITIES> 16,537
<BONDS> 3,583
0
0
<COMMON> 72
<OTHER-SE> 49,616
<TOTAL-LIABILITY-AND-EQUITY> 71,784
<SALES> 88,547
<TOTAL-REVENUES> 88,547
<CGS> 72,766
<TOTAL-COSTS> 72,766
<OTHER-EXPENSES> 6,134
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 206
<INCOME-PRETAX> 9,077
<INCOME-TAX> 3,448
<INCOME-CONTINUING> 5,629
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,629
<EPS-PRIMARY> .76
<EPS-DILUTED> .76
</TABLE>
