<PAGE> 1
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-QSB
OMB Approval
OMB Number: xxxx-xxxx
Expires: Approval Pending
Estimated Average Burden Hours Per Response: 1.0
(Mark One)
/x/ Quarterly report under Section 13 or 15(d) of the Securities Exchange
Act of 1934.
For the quarterly period ended June 30, 1995
-----------------------
/ / Transition report under Section 13 or 15(d) of the Exchange Act.
For the transition period from _________________ to _________________
Commission file number 0-3555
--------
David White, Inc.
--------------------------------------------------
(Exact Name of Small Business Issuer as
Specified in Its Charter)
Wisconsin 39-0967642
------------------------------- ------------------
(State or Other Jurisdiction of (I. R. S. Employer
Incorporation or Organization) Identification No.)
11711 River Lane, Germantown, WI 53022
-------------------------------------------------
(Address of Principal Executive Offices)
(414) 251-8100
-------------------------------------------------
(Issuer's Telephone Number, Including Area Code)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 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 _____
State the number of shares outstanding of each of the issuer's classes of
common equity, as of the latest practicable date:
<TABLE>
<CAPTION>
Class Outstanding at July 31, 1995
---------------------------------------- ----------------------------------------
<S> <C>
Common Stock, $3.00 Par Value Per Share 457,323 Shares
</TABLE>
<PAGE> 2
DAVID WHITE, INC.
INDEX
Page No.
--------
Part I. Financial Information
Consolidated Condensed Balance Sheets -
June 30, 1995 and December 31, 1994 3
Consolidated Condensed Statements of Operations -
Three Months and Six Months Ended June 30, 1995
and 1994 4
Consolidated Condensed Statements of Cash Flows -
Six Months Ended June 30, 1995 and 1994 5
Notes to Unaudited Consolidated Condensed
Financial Statements 6
Management's Discussion and Analysis of
Financial Condition and Results of
Operations 7 - 8
Part II. Other Information
Item 4. Submission of Matters to a Vote
of Security Holders 9
Item 6. Exhibits and Reports on Form 8-K 9 - 11
Signature 12
<PAGE> 3
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
DAVID WHITE, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(000'S)
<TABLE>
<CAPTION>
June 30, December 31,
1995 1994
----------- --------------
(Unaudited)
<S> <C> <C>
Assets
Current Assets
Cash and cash equivalents $ 0 $ 892
Trade accounts receivable, net 2,342 1,442
Inventories 4,343 4,645
Other current assets 36 112
-------- --------
Total current assets 6,721 7,091
Other Assets
Technology and patents, net 205 245
Intangible pension asset 211 211
Other 298 322
-------- --------
714 778
Property, plant and equipment, net 2,599 2,176
Goodwill, net 0 1,150
-------- --------
Total assets $ 10,034 $ 11,195
======== ========
Liabilities and Stockholders' Investment
Current Liabilities
Notes payable to bank $ 645 $ 413
Trade accounts payable 798 852
Accrued liabilities 688 676
Income taxes 89 173
Current maturities of long-term debt 296 284
-------- --------
Total current liabilities 2,516 2,398
Long-Term Liabilities
Long-term debt, less current maturities 1,997 2,148
Long-term pension liability 573 573
-------- --------
Total long-term liabilities 2,570 2,727
Minority interest 0 44
Stockholders' Investment
Preferred stock, par value $1 a share:
Authorized 1,000,000 shares; none issued
Common stock, par value $3 a share:
Authorized 5,000,000 shares; issued 692,240 shares
and 691,940 shares, respectively 2,077 2,077
Additional paid-in capital 1,024 1,024
Retained earnings 4,503 4,747
Additional pension liability (362) (362)
Cumulative translation adjustment 0 83
Treasury stock at cost - 234,917 shares and
164,417 shares, respectively (2,294) (1,537)
-------- --------
Total stockholders' investment 4,948 6,032
-------- --------
Total liabilities and stockholders' investment $ 10,034 $ 11,195
======== ========
</TABLE>
See accompanying notes to unaudited consolidated condensed financial
statements.
-3-
<PAGE> 4
DAVID WHITE, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(000'S) EXCEPT SHARE AND PER SHARE DATA
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
------------------- ------------------
1995 1994 1995 1994
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales $ 4,272 $ 4,190 $ 9,099 $ 8,433
Cost of goods sold 3,220 2,980 6,765 6,088
-------- -------- -------- --------
Gross margin 1,052 1,210 2,334 2,345
Loss on sale of subsidiary (722) 0 (722) 0
Selling and administrative expenses 791 722 1,682 1,506
-------- -------- -------- --------
Earnings (loss) from operations before
other expenses and income taxes (461) 488 (70) 839
Other income (expenses)
Other income 27 0 34 0
Interest expense (101) (76) (177) (136)
Amortization of intangible assets (30) (46) (75) (92)
Minority interest 4 (13) 0 (17)
-------- -------- -------- --------
Earnings (loss) before income taxes (561) 353 (288) 594
Income taxes (benefit) (104) 47 (45) 82
-------- -------- -------- --------
Net earnings (loss) $ (457) $ 306 $ (243) $ 512
======== ======== ======== ========
Net earnings (loss) per common share $ (.91) $ .58 $ (.47) $ .97
Average common shares outstanding 504,323 527,526 516,073 527,525
Dividends per common share outstanding $ .00 $ .00 $ .00 $ .00
</TABLE>
See accompanying notes to unaudited consolidated condensed financial
statements.
-4-
<PAGE> 5
DAVID WHITE, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(000'S)
(UNAUDITED)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
------------------
1995 1994
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net earnings (loss) $ (243) $ 512
Adjustments to reconcile net earnings to net
cash used in operating activities:
Depreciation 205 214
Amortization of intangible assets 75 92
Minority interest in earnings of subsidiary 0 17
Issuance of common stock - employment agreement 0 3
Loss on sale of subsidiary 722 0
Change in assets and liabilities:
(Increase) decrease in:
Accounts receivable (558) (919)
Inventories (433) (515)
Prepaid expenses and other assets (54) 32
Increase (decrease) in:
Accounts payable and accrued liabilities (16) 313
------- -------
Net cash used in operating activities (302) (251)
Cash flows from investing activities:
Additions to property, plant & equipment (684) (141)
------- -------
Net cash used in investing activities (684) (141)
Cash flows from financing activities:
Proceeds from issuance of long-term debt 0 1,600
Principal payments on debt (139) (19)
Net increase in notes payable to bank 228 (1,133)
------- -------
Net cash provided by financing activities 89 448
Effect of exchange rate changes on cash 5 2
Net increase (decrease) in cash and cash equivalents (892) 58
Cash and cash equivalents at beginning of year 892 41
------- -------
Cash and cash equivalents at end of period $ 0 $ 99
======= =======
Supplemental disclosures of cash flow information:
Cash paid during the period for:
Interest 156 129
Income taxes 165 9
</TABLE>
See accompanying notes to unaudited consolidated condensed financial
statements.
-5-
<PAGE> 6
DAVID WHITE, INC.
NOTES TO UNAUDITED CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
1. The condensed financial statements included herein have been prepared by
the Company, without audit, pursuant to the rules and regulations of the
Securities and Exchange Commission. Certain information and footnote
disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such rules and regulations, although the
Company believes that the disclosures are adequate to make the information
presented not misleading. It is suggested that these condensed financial
statements be read in conjunction with the audited financial statements
and the notes thereto incorporated by reference in the Company's latest
annual report on Form 10-KSB.
2. In the opinion of management, the aforementioned statements reflect all
adjustments (consisting only of normal recurring adjustments) necessary
for a fair presentation of the results for the interim periods. The
results of operations for the six months ended June 30, 1995 are not
necessarily indicative of the results to be expected for the full year.
3. It is not practicable to segregate the amounts of raw materials, work in
progress, finished goods or supplies.
4. During the second quarter of 1995, the Company and its work force agreed to
terminate the union's defined benefit retirement plan at the end of
1995. Management estimates the potential fourth quarter charge will range
between $200,000 - $300,000 based upon current interest rate assumptions.
Over 80% of the current cash requirements are invested in a trust account.
The equity section of the balance sheet contains an unrecognized loss of
$289,000 to cover the unfunded portion of any additional liability.
5. On May 31, 1995, the Company sold its 90% investment in Ammann Lasertechnik
to Hans Ammann from whom it was originally purchased on June 30, 1989.
The following is a schedule of non-cash activities in connection with the
sale of the subsidiary:
<TABLE>
<S> <C>
Net carrying value of assets sold $ (691)
Write-off of goodwill (1,123)
Fair market value of common stock received 757
Other assets - net 335
--------
Loss on sale of subsidiary (722)
Tax benefit 147
--------
Loss on sale of subsidiary - net of taxes $ (575)
========
</TABLE>
-6-
<PAGE> 7
DAVID WHITE, INC.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following is management's discussion and analysis of certain significant
factors that have affected the Company's earnings during the periods included
in the accompanying consolidated condensed statements of operations.
A summary of the period to period changes in the principal items included in
the consolidated condensed statements of operations is shown below:
<TABLE>
<CAPTION>
Comparison of
----------------------------------------
Three Months Ended Six Months Ended
June 30, June 30,
1995 and 1994 1995 and 1994
------------------- -------------------
Increase (Decrease) Increase (Decrease)
(000's) (000's)
<S> <C> <C>
Net sales 82 666
Cost of goods sold 240 677
Selling and administrative expenses 69 176
Other income 27 34
Loss on sale of subsidiary, net of tax benefit 575 575
Interest expense 25 41
Amortization of intangible assets (16) (17)
Minority interest (17) (17)
Earnings before income taxes (767) (735)
Income taxes (4) 20
Net earnings (763) (755)
</TABLE>
-7-
<PAGE> 8
RESULTS OF OPERATIONS
SECOND QUARTER 1995 COMPARED TO SECOND QUARTER 1994
On May 31, 1995, the Company sold its 90% investment in Ammann Lasertechnik to
Hans Ammann from whom it was originally purchased on June 30, 1989. Continuous
losses along with the deteriorating U.S. dollar made the products from
Switzerland too expensive to compete effectively in the U.S. market. The
results for the second quarter of 1995 include the results of Ammann
Lasertechnik through May 31, 1995. The loss on the sale of Ammann of $575,000,
net of tax benefit, is included in the second quarter results. Second quarter
consolidated sales of $4.3 million were up 2%. Sales of David White, Inc. were
up 17% in the second quarter of 1995 while sales of the former Swiss subsidiary
were down 40%. Before the loss on the sale of Ammann Lasertechnik, David
White, Inc. had a second quarter profit of $174,000, down $79,000 from 1994's
second quarter profit of $253,000. Lower margins on lasers and unfavorable
currency exchange rates contributed to the decline in gross margins from 28.9%
in 1994 to 24.6% in 1995. Ammann Lasertechnik posted a loss of $56,000 in the
second quarter of 1995 versus a $53,000 profit in the second quarter of 1994.
Selling and administrative expenses were higher in 1995 due to additional sales
staff hired in the third quarter of 1994 along with expenses related to
upgrading the Company's computer system. Interest expenses were up $25,000 due
to higher debt levels required to support increased receivables and
inventories. All of the above contributed to lower earnings in the second
quarter prior to the loss on the sale of the former Swiss subsidiary. The sale
of Ammann Lasertechnik to Hans Ammann resulted in the Company receiving cash
and cash equivalents of $422,000 along with the return of 70,500 shares of
David White stock with a market value of $757,000. The price negotiated was
higher than the book value of Ammann Lasertechnik but not enough to cover the
$1.1 million of goodwill remaining as of May 31, 1995. The loss of $575,000,
net of tax benefit, included the write-off of the remainder of goodwill of
$1.1 million.
FIRST SIX MONTHS 1995 COMPARED TO THE FIRST SIX MONTHS 1994
Sales for the first six months of 1995 of $9.1 million are up 8% from the $8.4
million reported for the first six months of 1994. David White, Inc.'s sales
were up 15% while Ammann Lasertechnik sales were down 16%. Excluding the loss
on the sale of Ammann Lasertechnik, domestic earnings of $409,000 were down
$80,000 from $489,000 in 1994 primarily due to lower margins on lasers and
currency exchange variances caused by the weak U.S. dollar. In 1994, the
former Swiss subsidiary had a loss of $77,000 as compared to a $23,000 profit
in 1994. Gross margins dropped from 27.8% in 1994 to 25.7% in 1995, for the
reasons stated above. Selling and administrative expenses increased due to
additional marketing staff hired in the third quarter of 1994. Interest
expenses were higher due to the higher loans outstanding to support the
increased sales. The loss of $575,000, net of tax benefit, on the sale of
Ammann erased the $322,000 profit through June, 1995. Details of the sale are
included in the second quarter comments above.
LIQUIDITY
At the end of the second quarter, the Company had $645,000 of revolving debt.
The debt agreement enables the Company to borrow at the prime rate. The line
was increased to $1.75 million from $1 million on March 21, 1995. The term
note remaining of $2.3 million is payable in monthly installments of $40,000
through August, 2001. The Company anticipates that the revolving debt will be
paid in the third quarter. The current ratio increased from 2.19:1 on June 30,
1994 to 2.67:1 on June 30, 1995.
CAPITAL RESOURCES
No significant capital committments were outstanding at the end of the second
quarter.
-8-
<PAGE> 9
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
At the 1995 Annual Meeting of Shareholders of the Company, held on May 2,
1995, the shareholders approved and ratified the David White, Inc. 1995 Stock
Option Plan (the "1995 Stock Option Plan"), which became effective as of
February 22, 1995. The 1995 Stock Option Plan, to be administered by the
Compensation Committee of the Board of Directors, authorizes the granting of
stock options to key employees of the Company and its subsidiaries and
successors to acquire shares of common stock of the Company and its
successors-in-interest. Under the 1995 Stock Option Plan, a total of 50,000
shares may be issued pursuant to the exercise of the options granted under the
plan.
A total of 366,944 shares were voted for the adoption of the 1995 Stock
Option Plan, 10,044 shares were voted against the 1995 Stock Option Plan, and
2,610 shares abstained, representing 69.5%, 1.9% and .5% of all outstanding
shares, respectively.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits.
3.1 Restated Articles of Incorporation [Incorporated by reference to
Exhibit 3 to the Company's Form 8-K dated May 8, 1992]
3.2 By-Laws, as amended through October 28, 1992 [Incorporated by reference
to Exhibit 3.2 to the Company's Form l0-K for the year ended December
31, 1992]
4.1 Rights Agreement, dated as of August 29, 1988, between Company and
First Wisconsin Trust Company, as Rights Agent [Incorporated by
reference to Exhibit 4 to the Company's Form 8-K dated September 15,
1988]
4.2 Amendment to Rights Agreement, dated as of November 9, 1988, between
Company and First Wisconsin Trust Company, as Rights Agent
[Incorporated by reference to Exhibit 4.1 to the Company's Form 8-K
dated November 10, 1988]
4.3 Amendment No. 2 to Rights Agreement dated as of June 30, 1989 between
the Company and First Wisconsin Trust Company, as Rights Agent
[Incorporated by reference to Exhibit 4.2 to the Company's Form 8-K
dated June 30, 1989]
4.4 Amendment No. 3 to Rights Agreement dated as of January 22, l992,
between the Company and First Wisconsin Trust Company, as Rights Agent
[Incorporated by reference to Exhibit 4.3 to the Company's Form 8-K
dated February 7, 1992]
10.1 Amended and Restated 1981 Stock Option Plan [Incorporated by reference
to Exhibit 10.4 to the Company's Form 10-K for the year ended December
31, 1988]*
10.2 Form of 1981 Incentive Stock Option Agreement, as amended [Incorporated
by reference to Exhibit 10.5 to the Company's Form 10-K for the year
ended December 31, 1988]*
10.3 Form of Amendment to 1981 Incentive Stock Option Agreement
[Incorporated by reference to Exhibit 10.6 to the Company's Form 10-K
for the year ended December 31, 1988]*
-------------
* management contract or compensatory plan or arrangement.
-9-
<PAGE> 10
10.4 Form of Key Executive Employment and Severance Agreement, dated as of
January 25, 1990, entered into between the Company and each of the
following: Tony L. Mihalovich, Ronald J. Jansen, James L. Younk, E.
Gustav Malm, Larry Clark, Walker J. Young and Robert L. Underberg
[Incorporated by reference to Exhibit 10.4 to the Company's Form 10-K
for the year ended December 31, 1992]*
10.5 Employment Agreement, dated as of January 1, 1994, between the Company
and Tony L. Mihalovich [Incorporated by reference to Exhibit 10.5 of
the Company's Form 10-KSB for the year ended December 31, 1993, as
amended by Form 8 dated April 20, 1994]*
10.6 Stock Option Agreement, dated as of January 1, 1994, between the Company
and Tony L. Mihalovich. [Incorporated by reference to Exhibit 10.6 at
the Company's Form 10-KSB for the year ended December 31, 1993]*
10.7 Stock Option Agreement, dated as of January 11, 1990, between Company
and R. Ron Heiligenstein [Incorporated by reference to Exhibit 10.11 to
the Company's Form 10-K for the year ended December 31, 1989]*
10.8 Form of Indemnity Agreement, dated as of January 24, 1990, entered into
between the Company and each of the following: Charles D. Jacobus,
Hans-Rudolf Ammann, E. Gustav Malm, R. Ron Heiligenstein, Marshall A.
Loewi, Michael S. Ariens and Richard H. Bromley [Incorporated by
reference to Exhibit 10.12 to the Company's Form 10-K for the year ended
December 31, 1989]
10.9 1992 Stock Option Plan [Incorporated by reference to Exhibit 10.9 to the
Company's Form 10-K for the year ended December 31, 1992]*
10.10 Form of 1992 Incentive Stock Option Agreement [Incorporated by
reference to Exhibit 10.10 to the Company's Form 10-K for the year
ended December 31, 1992]*
10.11 1995 Stock Option Plan*
10.12 Stock Purchase Agreement, dated as of May 31, 1995, entered into
between the Company and Hans-Rudolf Ammann, Jolanda Ammann, Konrad
Bachmaier and Thomas Ammann
10.13 License Agreement, dated as of May 31, 1995, entered into between the
Company and Ammann Lasertechnik, AG
10.14 Ammann Lasertechnik AG Supply Agreement, dated as of May 31, 1995,
entered into between the Company and Ammann Lasertechnik, AG
10.15 David White, Inc. Supply Agreement, dated as of May 31, 1995, entered
into between the Company and Ammann Lasertechnik, AG
10.16 Transfer and Assignment Agreement, dated as of May 31, 1995, entered
into between the Company and Ammann Lasertechnik, AG
--------------
* management contract or compensatory plan or arrangement.
-10-
<PAGE> 11
10.17 Pledge Agreement, dated as of May 31, 1995, entered into between the
Company and Hans-Rudolf Ammann, Jolanda Ammann, Konrad Bachmaier and
Thomas Ammann
27 Financial Data Schedule
(b) The Company filed a report on Form 8-K with the Securities and Exchange
Commission on June 21, 1995, with respect to its sale of its 90% interest
in its former Swiss subsidiary, Ammann Lasertechnik AG. In connection with
the Form 8-K, the Company filed an audited balance sheet as of the end of
its most recent fiscal year, and audited statements of income, cash flows
and changes in stockholders' equity for each of the two fiscal years
preceding the date of the audited balance sheet as of the end of the most
recent fiscal year.
-11-
<PAGE> 12
SIGNATURE
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.
DAVID WHITE, INC.
----------------------------------------
(Registrant)
/s/ Tony L. Mihalovich
----------------------------------------
Tony L. Mihalovich
(President)
/s/ James L. Younk
----------------------------------------
James L. Younk
(Vice President-Finance)
Date: August 15, 1995
--------------------------------
<PAGE> 1
EXHIBIT 10.11
DAVID WHITE, INC.
1995 STOCK OPTION PLAN
1. Purpose
The purpose of the David White, Inc. 1995 Stock Option Plan (the
"Plan") is to induce key employees to remain in the employ of David White, Inc.
(the "Company") of any subsidiary of the Company, and to encourage such
employees to secure or increase on reasonable terms their stock ownership in
the Company. The board of directors of the Company (the "Board of Directors")
believes the Plan will promote continuity of management and increased incentive
and personal interest in the welfare of the Company by those who are primarily
responsible for shaping and carrying out the long-range plans of the Company
and securing its continued growth and financial success. It is intended that
certain of the options granted under the Plan may qualify as "incentive stock
options" under Section 422 of the Internal Revenue Code of 1986, as amended
("Incentive Stock Options") and the remainder of the options issued pursuant to
the Plan shall constitute nonstatutory options ("Nonstatutory Options").
2. Effective Date and Term of Plan.
The Plan shall become effective on the date adopted by the Board
of Directors, provided that the Plan is approved by the stockholders of the
Company within twelve months after the date of such adoption. Options may be
granted under the Plan prior to such approval, provided that such options be
subject to such approval. No option may be granted under the Plan more than
ten years after the date of adoption by the Board of Directors.
3. Stock Subject to Plan.
The maximum number of shares of the Company's common stock, par
value $3.00 per share ("Common Stock"), which may be issued pursuant to the
exercise of options granted under the Plan ("Options") is 50,000, subject to
the adjustments provided in Paragraph 14 below. If any Options shall expire or
terminate for any reason without having been exercised in full, the unpurchased
shares subject thereto shall again be available for further grants under the
Plan.
4. Administration.
The Plan shall be administered by the Compensation and Stock
Options Committee of the Board of Directors (the "Committee"). Subject to the
express provisions of the Plan, the
<PAGE> 2
Committee shall have complete authority, in its discretion, to determine those
key employees ("Participants") to whom and the price at which Options shall be
granted, whether the Options granted shall qualify as Incentive Stock Options
or as Nonstatutory Options, the option periods and the number of shares to be
subject to each Option. Subject to the express provisions of the Plan, the
Committee shall also have the authority in its discretion to prescribe the time
or times at which Options may be exercised and limitations upon the exercise of
Options (including limitations effective upon the death, disability or
termination of employment of any Participant) and the restrictions if any, to
be imposed upon the transferability of shares acquired upon exercise of
Options. In making such determinations, the Committee may take into account
the nature of the services rendered by the respective Participants, their
present and potential contributions to the success of the Company or its
subsidiaries, as hereinafter defined, and such other factors as the Committee
in its discretion shall deem relevant. Subject to the express provisions of
the Plan, the Committee shall also have complete authority to interpret the
Plan, to prescribe, amend and rescind rules and regulations relating to the
Plan, to determine the terms and provisions of the respective option agreements
(which need not be identical), to determine whether the shares delivered upon
exercise of Options will be treasury shares or will be authorized but
previously unissued shares and to make all other determinations necessary or
advisable for the administration of the Plan. The Committee's determinations
on the matters referred to in this paragraph shall be conclusive.
5. Committee.
The Committee shall consist of not less than three members of the
Board of Directors who are not eligible and have not at any time within one
year prior to appointment to the Committee been eligible to receive options
under the Plan or any other plan of the Company or any of its subsidiaries.
The Committee shall be appointed from time to time by the Board of Directors,
which may from time to time appoint members of the Committee in substitution
for members previously appointed and may fill vacancies, however caused, in the
Committee. A majority of its members shall constitute a quorum. All
determinations of the Committee shall be made by a majority of its members.
Any decision or determination reduced to writing and signed by all of the
members shall be fully as effective as if it had been made by a majority vote
at a meeting duly called and held. The Committee shall also have express
authorization to hold committee meetings by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other.
6. Eligibility.
2
<PAGE> 3
An Option may be granted under the Plan only to an officer or
other key employee of the Company and of its present or future subsidiary
corporations, as defined in Section 424(f) of the Internal Revenue Code of
1986, as amended ("Subsidiaries"). Members of the Committee shall not, while
serving as members of the Committee, be eligible to receive Options.
7. Option Prices.
The option price per shall will be determined by the Committee at
the time each Option is granted, but shall not be less than 100% of the fair
market value, as determined by the Committee, of a share of Common Stock on the
date of grant. The option price per share of an Incentive Stock Option granted
to a person who owns, directly or indirectly, stock possessing more than ten
percent of the total combined voting power of all classes of stock of the
Company or its subsidiaries, shall be not less than 110% of the fair market
value, as determined by the Committee, of a share of Common Stock on the date
of grant.
8. Option Periods.
The term of each Option will be for such period not exceeding ten
years form the date of grant as the Committee shall determine; provided that,
in the case of Incentive Stock Options granted to a person who owns, directly
or indirectly, stock possessing more than ten percent of the total combined
voting power of all classes of stock of the Company or its Subsidiaries, the
option term shall not exceed five years. An Option shall be considered granted
on the date the Committee acts to grant the Option or such later date as the
Committee shall specify. Each Option shall be subject to earlier termination
as described under Paragraph 12 below.
9. Exercise of Options.
Each Option may be exercised at any time during the option period
for such Option, subject to the restrictions in this paragraph, in Paragraph 12
below, and in the agreements referred to in Paragraph 13 and otherwise subject
to the provisions of Paragraph 17. Such agreements may, in the discretion of
the Committee, include, for example, restrictions on the date on which an
Option or any portion thereof may first be exercised. Upon exercise, the
option price shall be paid in full (a) in cash or its equivalent; (b) with the
consent of the Committee, by tendering previously acquired shares of Common
Stock (valued at their fair market value, as determined by the Committee, as of
the date of exercise); or (c) with the consent of the Committee, by any
combination of (a) and (b).
3
<PAGE> 4
10. Financial Assistance.
The Board of Directors or the Committee may cause the Company or
a Subsidiary to give or arrange for financial assistance (including without
limitation direct loans, with or without interest, secured or unsecured, or
guaranties of third-party loans) to a Participant for the purpose of providing
funds for the purchase of Common Stock pursuant to the exercise of an Option,
when in the judgment of the Board of Directors or the Committee such assistance
may reasonably be expected to be in the best interests of the Company, and
provided that such assistance as may be granted shall be consistent with the
certificate of incorporation and by-laws of the Company and applicable law, and
will permit the Common Stock to be fully paid and nonassessable when issued.
11. Maximum Incentive Stock Options Per Participant.
In the case of options granted as Incentive Stock Options, the
aggregate fair market value, as determined by the Committee, of the stock with
respect to which any Incentive Stock Options are exercisable for the first time
by a Participant during any calendar year under this Plan or any other plan of
the Company or any parent corporation or any Subsidiary, shall not exceed
$100,000. For purposes of this paragraph, the fair market value of stock
subject to an Incentive Stock Options shall be determined as of the date the
Incentive Stock Options are granted. Options granted as Nonstatutory Options
shall not be subject to the limitation in this paragraph.
12. Termination of Employment.
Except as hereinafter provided, no Option may be exercised after
a Participant terminates his employment with the Company or its Subsidiaries,
as the case may be. If termination or employment results from disability
within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended, death, or retirement, any Option may be exercised at any time within
twelve months after such termination of employment, but in no event beyond the
option period. The Committee may impose additional restrictions upon the
exercise of Options after termination of employment, including prohibition of
such exercise. The Committee's determination whether a Participant's
employment has terminated shall be conclusive.
13. Agreements.
Options granted pursuant to the Plan shall be evidenced by
4
<PAGE> 5
stock option agreements in such form as the Committee shall from time to time
adopt.
14. Adjustment of Number of Shares.
In the event that a dividend shall be declared upon the Common
Stock payable in shares of Common Stock, the number of shares of Common Stock
then subject to any Option and the number of shares reserved for issuance
pursuant to the Plan but not yet covered by an Option, shall be adjusted by
adding to each such share the numbers of shares which would be distributable
thereon if such share had been outstanding on the date fixed for determining
the stockholders entitled to receive such stock dividend. In the event that
the outstanding shares of Common Stock shall be changed into or exchanged for a
different number or kind of shares of stock or other securities of the Company
or of another corporation, whether through reorganization, recapitalization,
stock split-up, combination of shares, merger or consolidation, then there
shall be substituted for each share of Common Stock reserved for issuance
pursuant to the Plan, but not yet covered by an Option, the number and kind of
shares of stock or other securities into which each outstanding share of Common
Stock shall be so changed or for which each such share shall be exchanged. In
the event there shall be any change, other than as specified above in this
paragraph, in the number or kind of outstanding shares of Common Stock or of
any stock or other securities into which such Common Stock shall have been
changed or for which it shall have been exchanged, then if the Committee shall
in its sole discretion determine that such change equitably requires an
adjustment in the number or kind of shares theretofore reserved for issuance
pursuant to the Plan, but not yet covered by an Option and of the shares then
subject to an Option or Options, such adjustment shall be made by the Committee
and shall be effective and binding for all purposes of the Plan and of each
stock option agreement. The option price in each stock option agreement for
each share of Common Stock or other securities substituted or adjusted as
provided for in this paragraph shall be determined by dividing the option price
in such agreement for each share prior to such substitution or adjustment by
the number of shares or the fraction of a share substituted for such share or
to which such share shall have been adjusted. No adjustment or substitution
provided for in this paragraph shall require the Company in any stock option
agreement to sell a fractional share, and the total substitution or adjustment
with respect to each stock option agreement shall be limited accordingly.
15. Amendment, Suspension or Termination of Plan.
The Board of Directors, without further approval of the
stockholders, may from time to time amend, suspend or terminate the
5
<PAGE> 6
Plan in such respects as the Board may deem advisable; provided, however, that
no amendment shall become effective without prior approval of the stockholders
which would (i) increase the aggregate number of shares which may be issued
pursuant to Options granted under the Plan, except as permitted under Paragraph
14; (ii) permit the granting of Options to anyone other than a key employee of
the Company or a Subsidiary or to a member of the Committee; (iii) decrease the
minimum option prices; (iv) increase the maximum option periods; (v) increase
the maximum per Participant set in Paragraph 11; or (vi) extend the term of the
Plan. No amendment shall, without the Participant's consent, alter or impair
any of the rights or obligations under any Option theretofore granted to him.
Notwithstanding the foregoing provisions of this Paragraph 15, Paragraph 16
hereof may only be amended by Continuing Directors (as hereinafter defined).
16. Modification of Options.
At any time and from time to time the Board of Directors may
authorize the Committee to direct execution of an instrument providing for the
modification of any outstanding Option, provided no such modification,
extension or renewal shall confer on the holder of said Option any right or
benefit which could not be conferred on him by the grant of a new Option at
such time, or impair the Option without the consent of the holder of the
Option. In the discretion of the Committee, the date of termination of any
Option and the date on which such Option, or any portion thereof not then
exercisable, may be exercised, may be advanced it:
(a) In connection with any merger, consolidation, or sale
or transfer by the Company of substantially all its assets, any Option is not
assumed by the surviving corporation or the purchaser, or
(b) Any person (including, but not limited to, any
individual, corporation, partnership, trust or other entity) or group of
persons (consisting of any two or more persons who have agreed orally or in
writing to act together for the purpose of acquiring, holding, voting or
disposing of Common Stock of the Company), pursuant to any tender offer or any
request or invitation to tender share, or any other method, acquires, after the
date thereof, directly or indirectly, beneficial or record ownership of 10% or
more of the then outstanding Common Stock of the Company or acquires, after the
date hereof, directly or indirectly, effective control of the Company.
17. Change in Control.
(a) Notwithstanding any other provision of this Plan,
6
<PAGE> 7
upon the occurrence of a Change in Control (as hereinafter defined) all Options
then outstanding shall become immediately exercisable in full for the remainder
of their terms and each Participant shall have the right to require the Company
to purchase his outstanding Options for cash for a period of thirty days
following a Change in Control at the aggregate Acceleration Price (as
hereinafter defined) for all shares of Common Stock subject to Options held by
such Participant, provided that Participants who are officers or directors of
the Company shall have the right to require such purchase of Options only if at
least six months has elapsed from the date of grant of such Options and the
date of the Change in Control.
(b) The "Acceleration Price" is the excess of the highest
of the following over the option price per share (as the same may be adjusted
from time to time pursuant to Paragraph 14) on the date of a Change in Control:
(1) the highest reported sales price of the Common
Stock during the sixty days prior to and including the date of the Change in
Control, as reported on the principal securities exchange or market upon which
the Common Stock is then listed or traded:
(2) the highest price of the Common Stock reported
in a Schedule 13D or an amendment thereto as paid on or within the sixty days
preceding the date of the Change in Control;
(3) the highest tender offer price paid for the
Common Stock; and
(4) any cash merger or similar price.
(c) A "Change in Control" is the occurrence of any one of
the following events:
(1) the first day of receipt by the Company of a
Schedule 13D, any amendment thereto or notice of a public announcement
confirming that any Person (other than any employee benefit plan of the Company
or of any subsidiary of the Company or any Person organized, appointed or
established pursuant to the terms of any such benefit plan or any Person who is
a Participant) is or becomes the Beneficial Owner of securities of the Company
representing at least 20% of the combined voting power of the Company's then
outstanding securities unless such ownership is approved by the Continuing
Directors prior to such ownership;
(2) the first day on which two (2) or more of the
members of the Company's Board of Directors are not Continuing Directors;
7
<PAGE> 8
(3) stockholder approval of (i) any consolidation
or merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of the Company's Common Stock
would be converted into cash, securities or other property, other than a merger
of the Company in which the holders of the Company's Common Stock immediately
prior to the merger have the same proportionate ownership of common stock of
the surviving corporation immediately after the merger; or (ii) any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company,
unless, in either case, such transaction is approved by the Continuing
Directors prior to submission for such stockholder approval; or
(4) the stockholders of the Company approve any
plan or proposal for the liquidation or dissolution of the Company, unless
approved by the Continuing Directors prior to submission for such stockholder
approval.
(d) For purposes of this Paragraph 17:
(1) a "Person" shall mean any individual, firm,
corporation, partnership, trust or other entity;
(2) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended;
(3) a Person shall be a "Beneficial Owner" of
Common Stock (i) which such Person beneficially owns, directly or indirectly;
or (ii) which such Person has the right to acquire (whether such right is
exercisable immediately or only with the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, rights, warrants, options or
otherwise;
(4) "Continuing Directors" means any member of the
Board of Directors who was a member of the Board of Directors on the effective
date of this Plan, and any successor of a Continuing Director who is
recommended or elected to succeed the Continuing Director by a majority of the
remaining Continuing Directors.
(e) The Committee shall not have authority under
Paragraph 4 hereof to modify the time when Options may be exercised under this
Paragraph 17.
8
<PAGE> 1
EXHIBIT 10.12
EXECUTION COPY
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, concluded as of May 31, 1995 (the "Agreement")
by and between DAVID WHITE, INC., a Wisconsin corporation ("DWI") and
HANS-RUDOLF AMMANN, JOLANDA AMMANN, KONRAD BACHMAIER and THOMAS AMMANN, acting
jointly in the name and for the account of Ammann Holding AG, in formation
("AHAG"), pursuant to Article 645 of the Swiss Code of Obligations.
W I T N E S S E T H:
WHEREAS, DWI (i) owns and is the registered holder of
- 85 A-shares with a nominal value of SFr. 1'000.-- each, incorporated in
share certificates nos. 4-7;
- 200 B-shares with a nominal value of SFr. 100.-- each, incorporated in
share certificate no. 11;
and (ii) controls and may validly dispose of title in
- 1 A-share with a nominal value of SFr. 1'000.-- incorporated in share
certificate no. 8 (qualifying board member share Marshall Loewi)
- 1 A-share with a nominal value of SFr. 1'000.-- incorporated in share
certificate no. 9 (qualifying board member share Tony Mihalovich)
- 1 A-share with a nominal value of SFr. 1'000.-- incorporated in share
certificate no. 10 (qualifying board member share Beat von Rechenberg)
of Ammann Lasertechnik AG, Amriswil ("ALAG") (hereafter the above 88 A-shares
and the 200 B-shares collectively referred to as the "Shares");
WHEREAS, the Shares represent 90% of the issued and outstanding capital
stock of ALAG and 96% of the votes which may be validly voted in the
Shareholders' Meetings of ALAG;
WHEREAS, DWI desires to sell the Shares to AHAG, and AHAG desires to
purchase the Shares from DWI, upon the terms and conditions herein set forth.
<PAGE> 2
NOW, THEREFORE, in consideration of the mutual promises made herein and
of the mutual benefits to be derived from this Agreement, the parties hereto
agree as follows:
1. PURCHASE AND SALE OF SHARES; PURCHASE PRICE.
1.1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
of this Agreement, DWI hereby sells, transfers, conveys, assigns and delivers
to AHAG, and AHAG hereby purchases and accepts the Shares.
1.2. PURCHASE PRICE. The aggregate purchase price (the "Purchase
Price") of the Shares shall be as follows:
(a) U.S.$200,000 paid by bank check drawn on a first rated Swiss
bank and issued to von Erlach, Klainguti, Stettler, Wille & Partners to
be delivered at the Closing (as defined below); and
(b) 70,500 shares of the common stock, par value $3.00 per
share, of David White, Inc. (the "David White Shares"), owned of record
and beneficially by Hans-Rudolf Ammann and Thomas Ammann, to be
delivered at the Closing to DWI, along with appropriate stock powers
endorsed in blank.
1.2. CERTIFICATES FOR SHARES. Upon receipt of the Purchase Price, DWI
shall deliver to AHAG certificates representing the Shares duly endorsed in
blank, provided, however, that certain certificates will remain with DWI as
provided in the Pledge Agreement (see Section 6.3 hereafter).
2. REPRESENTATIONS AND WARRANTIES OF DWI. DWI represents and warrants that:
2.1. It is a corporation validly existing under the laws of the State
of Wisconsin and has full power, legal right and authority to enter into,
execute and deliver this Agreement and to carry out the transactions
contemplated thereby.
2.2. The execution, delivery and performance of this Agreement by it
does not and will not (i) violate any provision of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award presently in
effect having applicability to it; (ii) require the consent or approval of, or
filing or registration with, any governmental body, agency or authority (other
than such post-Closing filings by DWI as may be required by the United States
Securities and Exchange Commission); or (iii) result in a breach of or
constitute a default under, or result in the imposition of any lien, charge or
encumbrance upon any of its property pursuant to any indenture or
<PAGE> 3
other agreement or instrument under which it is a party or by which it or any
of its properties may be bound or affected.
2.3. It has good and marketable title to the Shares, free and clear of
all liens (statutory or otherwise), security interests, claims, pledges,
licenses, equities, options, conditional sales contracts, assessments, levies,
limitations, or encumbrances of any nature whatsoever.
Any further statutory warranties under statutory law are hereby expressly
excluded.
3. REPRESENTATIONS AND WARRANTIES OF AHAG. AHAG, jointly and severally,
represents and warrants that:
3.1. AHAG has full power, right, authority and capacity to enter into,
execute and deliver this Agreement and to carry out the transactions
contemplated hereby.
3.2. All of the David White Shares are (a) beneficially owned by
Hans-Rudolf Ammann and Thomas Ammann and (b) are free and clear of any liens,
claims, charges, rights of first refusal or other encumbrances of any nature
whatsoever. Upon delivery of the David White Shares to DWI, pursuant to the
terms of this Agreement, Hans-Rudolf Ammann and Thomas Ammann or AHAG, as the
case may be, will transfer to DWI good and marketable title to all the David
White Shares free and clear of all liens, claims, charges, rights of first
refusal or other encumbrances of any nature whatsoever.
3.3. Hans-Rudolf Ammann and Thomas Ammann or AHAG, as the case may be,
have the exclusive right, power and authority to dispose of the David White
Shares.
3.4. AHAG is acquiring the Shares for investment and not with a view
toward, or for sale in connection with, any distribution thereof, nor with any
present intention of distributing or selling such Shares. AHAG, individually,
or together with its representatives and agents, represents that it has
sufficient knowledge and experience in financial and business matters that it
is capable of evaluating the economic risks of investment in the Shares.
4. MUTUAL RELEASE.
4.1. BY DWI. By executing this Agreement, and effective upon payment
of the Purchase Price, DWI hereby releases AHAG from any and all claims DWI may
have or may have had against AHAG for any reason arising prior to the date
hereof.
3
<PAGE> 4
4.2. BY AHAG. By executing this Agreement, and effective upon delivery
of the Shares, AHAG hereby release DWI, its directors, officers, agents,
employees and affiliates from any and all claims it may have or may have had
against DWI for any reason arising prior to the date hereof.
5. CLOSING. A closing (the "Closing") shall be held at the offices of Beat
von Rechenberg at Dreikoenigstrasse 7 in Zurich immediately upon execution of
this Agreement.
6. CONDITIONS PRECEDENT. The obligations of DWI and AHAG set forth hereunder
are subject to the fulfillment, on or prior to the date of Closing, of the
following conditions:
6.1. The Board of Directors of ALAG resolves to split share certificate
no. 4 of ALAG into eleven new certificates, namely:
(i) a new certificate no. 4 incorporating 52 A-shares; and
(ii) ten new certificates no. 12 through and inclusive 21
incorporating 3 A-shares each
and arranges for the pledging of the new share certificates incorporating 30
A-shares to DWI;
6.2. Messrs. Marshall Loewi, Tony Mihalovich and Beat von Rechenberg
resign as board members of ALAG and are granted full discharge by the
Shareholders' Meeting of ALAG for their conduct of business through the date of
their resignation; the resignation shall be recorded with the Thurgau
Commercial Registry on the date of Closing;
6.3. AHAG executes and delivers the Release Letter (substantially in the
form of Appendix I hereto).
4
<PAGE> 5
7. SWISS TAX REIMBURSEMENT. At the express request of Hans-Rudolf Ammann,
Jolanda Ammann, Konrad Bachmaier and Thomas Ammann, DWI has agreed to sell the
Shares to AHAG instead of to Hans-Rudolf Ammann as originally contemplated in
the letter of intent dated May 11, 1995 between DWI and Hans-Rudolf Ammann. As
a result thereof, AHAG shall reimburse DWI for any Swiss taxes which DWI may
incur due to the change of the purchaser of the Shares as set forth above.
8. MISCELLANEOUS.
8.1. SURVIVAL. The representations and warranties of the parties in
Section 2 and Section 3 of this Agreement shall survive the Closing.
8.2. GOVERNING LAW. This Agreement shall be governed by and
interpreted according to the laws of Switzerland.
8.3. AMENDMENTS. This Agreement may be amended, modified or
supplemented only by written agreement of the parties hereto.
8.4. ENTIRE AGREEMENT. This instrument embodies the entire agreement
between the parties hereto with respect to the transactions contemplated
herein, and there are no other agreements, conditions, representations or
warranties between the parties other than those set forth herein.
5
<PAGE> 6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
DAVID WHITE, INC.
By: \s\
---------------------------------
Name: Michael Hess
Title: Attorney at fact
\s\
------------------------------------
HANS-RUDOLF AMMANN
\s\
------------------------------------
JOLANDA AMMANN
\s\
------------------------------------
KONRAD BACHMAIER
\s\
------------------------------------
THOMAS AMMANN
6
<PAGE> 7
Hans-Rudolf Ammann
Jolanda Ammann
Konrad Bachmaier
Thomas Ammann
David White Inc.
11711 River Lane
P.O. Box 1007
Germantown, Wisconsin
53022-8207
USA
Amriswil, June 8, 1995
Dear Sirs:
We refer to the 70,500 shares of the common stock, par value US$ 3.00 per
share, of David White, Inc. which were purchased by Messrs. H.R. Ammann and Th.
Ammann on June 30, 1989.
We hereby confirm that the undersigned have jointly purchased as the
representatives of Ammann Holding AG in formation from Messrs. Hans-Rudolf and
Thomas Ammann said 70,500 shares of the common stock, par value US$ 3.00 per
share, of David White, Inc.
We, further, confirm to have full power, right, authority and capacity to sell
to your company 70,500 shares of the common stock, par value US$ 3.00 per share,
of David White Inc. at such price as we deem fit. To allow said company the
transfer of the aforementioned shares, we have endorsed in blank the appropriate
stock powers.
We hereby represent and warrant that the 70,500 shares of your company are free
and clear of any liens, claims, charges, rights of first refusal or other
incumbrances of any nature whatsoever.
We hereby confirm that we have no claim of whatsoever nature against your
company and your company's directors, officers, agents, employees and/or
affiliates.
Sincerely yours,
Hans-Rudolf Ammann
---------------------------
Hans-Rudolf Ammann
Jolanda Ammann
---------------------------
Jolanda Ammann
Konrad Bachmaier
---------------------------
Konrad Bachmaier
Thomas Ammann
---------------------------
Thomas Ammann
Appendix 1
<PAGE> 1
EXHIBIT 10.13
EXECUTION COPY
LICENSE AGREEMENT
LICENSE AGREEMENT, concluded as of May 31, 1995, by and between DAVID
WHITE, INC., of 11711 River Lane, Germantown, Wisconsin ("DWI") and AMMANN
LASERTECHNIK AG, of Palmensteg 4, CH-8580 Amriswil, Switzerland ("ALAG").
WHEREAS, ALAG desires to obtain a non-exclusive license from DWI under
the Patents; and
WHEREAS, DWI is willing to grant ALAG such license upon the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises made herein, and
of other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
1.1 "PATENTS" shall mean Switzerland Patents described in ANNEX 1,
and all patents and patent applications based thereon, derived therefrom and
counterparts thereof, including any reissues, reexaminations, continuations,
continuations-in-part, and divisional applications, together with any United
States and foreign counterparts thereof.
1.2 "LICENSED PRODUCTS" shall mean any apparatus or method that falls
within the scope of or used in accordance with the Patents.
2. LICENSE AND GRANT. DWI hereby grants to ALAG a non-exclusive worldwide
right and license, without the right to sublicense, to make, have made, use,
and sell Licensed Products.
3. PAYMENTS.
3.1 In consideration of the license of the Patents hereunder, ALAG
agrees to pay DWI a royalty of $25,000 dollars per year during calendar years
1995 through and including 2004.
3.2 The first annual royalty period shall commence with the date of
execution of this Agreement. ALAG agrees to pay to DWI the first $25,000
royalty payment as described under 3.1 upon execution of this Agreement for the
annual royalty commencing in year 1995. Subsequent annual payments shall be
due on the anniversary of the execution of this Agreement through the
<PAGE> 2
calendar year 2004.
3.3 The royalty payments under 3.1 are to be secured by a pledge of
outstanding stock of ALAG as prescribed in the Pledge Agreement of even date
herewith between DWI and Ammann Holding AG.
4. TERM AND TERMINATION.
4.1 This Agreement shall remain in force for ten (10) years from the
date of execution of this Agreement.
4.2 In the event that ALAG defaults in making any payment hereunder, or
if one of the parties shall at any time be in material breach in the
performance of any one of its other obligations set forth in this Agreement,
then the other party may, at its option, at any time during such default, give
written notice specifying such default to the defaulting party. The defaulting
party shall then have sixty (60) days in which to cure such default. If the
default is not cured within such 60-day period, then the other party may
immediately terminate this Agreement upon written notice to the defaulting
party.
4.3 No termination of this agreement pursuant to the terms hereof
shall relieve ALAG from its obligation to pay any payments accrued, due or
payable up to the date of such termination, and all rights granted ALAG
hereunder shall cease as of the date of termination.
5. PATENT EXPENSES; IMPROVEMENTS. DWI agrees during the term of this
Agreement to pay all expenses of filing, prosecuting and maintaining the
patents that arise during the term of this Agreement. All improvements on the
Patents as of the date hereof shall be the exclusive property of DWI and ALAG
agrees to execute additional documents as may be required to vest such
ownership exclusively in DWI.
6. INDEMNITY.
6.1 DWI assumes no liability to ALAG or third parties with respect to
the quality or characteristics of the goods manufactured or sold by ALAG under
this Agreement, and ALAG will indemnify DWI against all losses or damages
incurred through claims of third persons against DWI resulting from ALAG's
manufacture, use or sale of Licensed Products.
6.2 In the event any claim or suit is brought against ALAG by a third
party alleging that the manufacturing, use or sale of the Licensed Products
infringes any patent or other intellectual property right of such third party,
ALAG shall have the sole
<PAGE> 3
responsibility for the defense and settlement of such action.
7. INFRINGEMENTS.
7.1 DWI shall have first right to institute actions for infringement of
the Patent(s) against third parties. DWI shall exercise control over and bear
the costs of any such actions, and shall be entitled to retain the entire
amount of any recovery by way of judgment or settlement. ALAG may, at its
option and expense, join DWI as plaintiff in any such action, and ALAG shall
cooperate fully with DWI in any such action.
7.2 DWI shall have the option, if it declines to enforce a Patent as
provided in paragraph 7.1, of offering to enforce a Patent jointly with ALAG.
If ALAG agrees, DWI and ALAG shall exercise joint control over any such action,
split the costs of any such action equally, and shall share equally in any
recovery by way of judgment or settlement.
7.3 If DWI declines to proceed under either of paragraphs 7.1 or 7.2,
and the infringement is in the licensed field, then ALAG may institute an
action for infringement of the Patent against a third party. In such a case,
ALAG shall exercise control over and bear the costs of any such action, and
shall be entitled to retain the entire amount of any recovery by way of
judgment or settlement. DWI may, at its option and expense, join ALAG as
plaintiff in any such action, and DWI shall cooperate fully with ALAG in any
such action.
7.4 ALAG will promptly inform DWI of any actual or suspected
infringements of any Patent that ALAG becomes aware of.
8. ASSIGNMENTS. Neither this Agreement nor any license or rights hereunder
shall be assignable or otherwise transferable by ALAG without the prior written
consent of DWI.
9. TRADEMARKS/TRADENAME.
ALAG agrees that neither it nor any related entity or individual shall
use or seek registration of the trademark or trade name DAVID WHITE, in whole
or in part, or any similar trademark or trade name, in any jurisdiction of the
world. ALAG represents and warrants that neither it nor any related entity or
individual owns any rights in any such trademark or trade name, or any
registration or pending application with respect to any such trademark or trade
name, in any jurisdiction of the world. If it is determined that ALAG or any
related entity or individual does own any such rights, registrations or
applications, ALAG, or the related entity or individual, whichever is
applicable, shall
3
<PAGE> 4
immediately assign such rights, registrations or applications to DWI.
10. MISCELLANEOUS.
10.1. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement of and between the parties with respect to the
subject matter hereof and supersedes all prior representations and agreements.
It shall not be modified or varied by any oral agreement or representation or
otherwise than by an instrument in writing of subsequent date hereto duly
executed by the parties. Failure of either party to insist upon strict
performance of any of the covenants, terms or conditions of this Agreement
shall not be deemed to be a waiver of any other breach or default in the
performance of the same or any other covenant, term or condition contained
therein.
10.2. GOVERNING LAW. This Agreement shall be construed and interpreted
in accordance with the laws of the State of Wisconsin, except that questions
affecting the construction and effect of any patent shall be determined by the
law of the country in which the patent has been granted.
10.3. NO WAIVER. The waiver of any breach of this Agreement by either
party hereto shall in no event constitute a waiver as to any future breach,
whether similar or dissimilar in nature.
10.4. FURTHER DOCUMENTS. Each of the parties hereto forthwith upon
request from the other shall execute and deliver such documents and take such
actions as may be reasonably requested in order to fully carry out the intent
and purposes of this Agreement.
10.5. NOTICES. Any notice to the other party under this Agreement
shall be given in writing and either delivered in person, sent by facsimile, or
by mail, postage prepaid, to the following addresses:
If to DWI:
11711 River Lane
P.O. Box 1007
Germantown, WI 53022-8207
Attention: Tony L. Mihalovich
Facsimile: (414) 251-2081
If to ALAG:
4
<PAGE> 5
Palmensteg 4
CH-8580 Amriswil
Switzerland
Attention: Hans-Rudolf Ammann
Facsimile: 011-41-71-67-46-58
The address for notice may be changed by giving written notice in accordance
with this paragraph. If sent in accordance with this paragraph, notice shall
be deemed given when actually received.
10.6. ENFORCEABILITY. If any court or other authority determines that
any restriction contained in this Agreement is unenforceable, it is the
intention of the parties that any such restrictive covenant set forth herein
shall not thereby be terminated, but shall be deemed amended to the extent
required to render it valid and enforceable, such amendment to apply only with
respect to the operation of this paragraph in the jurisdiction of the court
that has made the adjudication.
5
<PAGE> 6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
DAVID WHITE, INC.
By: \s\
---------------------------------
Name:
Title:
AMMANN LASERTECHNIK AG
By: \s\
---------------------------------
Name:
Title:
6
<PAGE> 1
EXHIBIT 10.14
EXECUTION COPY
AMMANN LASERTECHNIK AG SUPPLY AGREEMENT
AMMANN LASERTECHNIK AG SUPPLY AGREEMENT, concluded as of May 31,
1995 (the "Agreement") by and between AMMANN LASERTECHNIK AG, an
Aktiengesellschaft organized under the laws of Switzerland ("ALAG") and DAVID
WHITE, INC., a Wisconsin corporation ("DWI").
W I T N E S S E T H:
WHEREAS, ALAG is engaged in the manufacture, sale and
distribution of certain laser and other products (the "ALAG Products") and
components (the "ALAG Components");
WHEREAS, DWI purchases the ALAG Products and ALAG Components,
pursuant to a Supply Agreement, dated June 30, 1989, between ALAG and DWI (the
"Supply Agreement") for distribution in connection with its business;
WHEREAS, ALAG and DWI desire to enter into a new agreement for
the supply of ALAG Products and ALAG Components to DWI upon the terms and
conditions herein set forth.
NOW THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SALE AND DISTRIBUTION OF ALAG PRODUCTS AND ALAG COMPONENTS TO
DWI.
1.1. AGREEMENT TO SUPPLY. ALAG shall sell and deliver to
DWI such quantities of ALAG Products and ALAG Components as DWI may require
from time to time during the term hereof.
1.2. PURCHASE PRICE AND TERMS. Except as otherwise
provided herein, the ALAG Products shall be sold to DWI at the prices in Swiss
Francs set forth in the price list attached hereto as Exhibit A and on the ALAG
standard terms and conditions as are now in effect. The ALAG Components shall
be sold to DWI at a price of fifteen percent (15%) over cost. The term, "cost"
shall mean ALAG's manufacturing cost, without amortization of overhead. Such
components or parts which are purchased by ALAG from third party suppliers and
directly sold to
<PAGE> 2
DWI shall be sold to DWI at the original price plus fifteen percent (15%).
1.3. PAYMENT. Except as otherwise agreed, DWI shall pay
invoices for ALAG Products and ALAG Components shipped to DWI within thirty
(30) days of receipt of the ALAG Products and/or ALAG Components or the receipt
of any invoice, whichever is later.
1.4. DELIVERY. All deliveries shall be made F.O.B. DWI's
factory.
2. RESTRICTION ON RESALE OF ALAG PRODUCTS. DWI shall not
resell, or attempt to resell, in Europe any of the ALAG Products purchased by
it from ALAG.
3. INDEPENDENT CONTRACTOR. DWI is an independent contractor and
is not ALAG's agent or representative for any purpose. Nothing herein shall be
construed in such a manner so as to constitute DWI an agent or representative
of ALAG. DWI shall not make any warranty or representation or incur any
obligation, liability or indebtedness whatsoever on ALAG's behalf. DWI shall
be liable for, and shall indemnify and hold ALAG harmless from and against, any
and all claims made against ALAG that arise out of any act or failure to act by
DWI, or by any of its agents or employees.
4. FORCE MAJEURE. Neither party shall be responsible to the
other for any delay in or failure of performance of its obligations under this
Agreement to the extent attributable to causes beyond its reasonable control,
including but not limited to acts of God, fires, floods, strikes, acts of any
government or delays by carriers, provided that the party affected thereby
gives the other party prompt written notice of the occurrence of any event
which is likely to cause any such delay or failure and of its best estimate of
the length of any delay and the possibility that it will be unable to resume
performance; and provided further that said affected party shall use its best
efforts to expeditiously overcome the effects of that event and to resume
performance.
5. INDEMNITY. ALAG shall hold harmless and defend DWI in
accordance with the appropriate provisions of Swiss law. DWI shall be
responsible for assuring that all ALAG Products and ALAG Components conform to
the applicable U.S. regulations and that no ALAG Products and ALAG Components
will be sold without prior testing.
6. TERM. This Agreement shall be for a period of two (2) years
from the date hereof.
<PAGE> 3
7. MISCELLANEOUS.
7.1. ASSIGNMENT. This Agreement may not be assigned by
either party without the prior written consent of the other.
7.2. NOTICES. Notification required or permitted by this
Agreement shall be deemed given upon confirmation of receipt by telecopy or
enclosure thereof in an adequately post-paid envelope, sent certified mail -
return receipt requested and addressed to the party to be given notice at the
address to which that party has previously requested, by notice hereunder, that
notices be sent or, if no such request has been made, as follows:
if to ALAG:
Ammann Lasertechnik AG
Palmensteg 4
CH-8580 Amriswil
SWITZERLAND
Fax No.: 011-41-71-67-46-58
Attn: Hans-Rudolf Ammann
if to DWI:
David White, Inc.
11711 River Lane
P.O. Box 1007
Germantown, WI 53022-8207
Attn: Tony L. Mihalovich
7.3. NO WAIVER. Neither party's failure to enforce at any
time any of the provisions of this Agreement shall be construed to be a waiver
of such provisions, or of the party's right at any time to enforce each and
every provision.
7.4. ENTIRE AGREEMENT. This Agreement supersedes any and
all prior agreements between ALAG and DWI with regard to the matters herein
contained, and constitutes the entire agreement between the parties hereto with
regard to such matters.
7.5. AMENDMENTS. This Agreement may be amended, modified
or supplemented only by written agreement of ALAG and DWI.
7.6. GOVERNING LAW. This Agreement shall be governed by
and interpreted according to the laws of Switzerland.
3
<PAGE> 4
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date and year first above written.
AMMANN LASERTECHNIK AG
By: \S\
-------------------------------
Name:
Title:
DAVID WHITE, INC.
By: \S\
-------------------------------
Name:
Title:
4
<PAGE> 5
EXHIBIT A
TO
AMMANN LASERTECHNIK AG SUPPLY AGREEMENT
DAVID WHITE, INC. PRICING IN SWISS FRANCS
The remainder of this Exhibit has been omitted and seperately filed with the
Commission with a request that it be given confidential treatment.
5
<PAGE> 1
EXHIBIT 10.15
EXECUTION COPY
DAVID WHITE, INC. SUPPLY AGREEMENT
DAVID WHITE, INC. SUPPLY AGREEMENT, concluded as of May 31, 1995
(the "Agreement") by and between DAVID WHITE, INC., a Wisconsin corporation
("DWI") and AMMANN LASERTECHNIK AG, an Aktiengesellschaft organized under the
laws of Switzerland ("ALAG").
W I T N E S S E T H:
WHEREAS, DWI is engaged in the manufacture, sale and distribution
of certain laser and other products (the "DWI Products") and components (the
"DWI Components");
WHEREAS, ALAG purchases the DWI Products and DWI Components,
pursuant to a Supply Agreement, dated June 30, 1989, between DWI and ALAG, for
distribution in connection with its business;
WHEREAS, DWI and ALAG desire to enter into a new agreement for
and the supply of DWI Products and DWI Components to ALAG, upon the terms and
conditions herein set forth.
NOW THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SALE AND DISTRIBUTION OF DWI PRODUCTS AND DWI COMPONENTS TO ALAG.
1.1. AGREEMENT TO SUPPLY. DWI shall sell and deliver to
ALAG such quantities of DWI Products and DWI Components as ALAG may require
from time to time during the term hereof.
1.2. PURCHASE PRICE AND TERMS. Except as otherwise
provided herein, the DWI Products shall be sold to ALAG at the prices in U.S.
Dollars set forth in the price list attached hereto as Exhibit A and on the DWI
standard terms and conditions of sale as are now in effect. The DWI Components
shall be sold to ALAG at a price of fifteen percent (15%) over cost. The term,
"cost" shall mean DWI's fully burdened cost, including amortization of
overhead. Such components and parts which are purchased by DWI from third
party suppliers and directly sold to ALAG shall be sold to ALAG at the original
<PAGE> 2
purchase price plus fifteen percent (15%).
1.3. PAYMENT. Except as otherwise agreed, ALAG shall pay
invoices for DWI Products and DWI Components shipped to ALAG within thirty (30)
days of receipt of the DWI Products and/or DWI Components or the receipt of any
invoice, whichever is later.
1.4. DELIVERY. All deliveries shall be made F.O.B. ALAG's
factory.
2. RESTRICTION ON RESALE OF DWI PRODUCTS. ALAG shall not
resell, or attempt to resell, in the United States any of the DWI Products
purchased by it from DWI.
3. INDEPENDENT CONTRACTOR. ALAG is an independent contractor
and is not DWI's agent or representative for any purpose. Nothing herein shall
be construed in such a manner so as to constitute ALAG an agent or
representative of DWI. ALAG shall not make any warranty or representation or
incur any obligation, liability or indebtedness whatsoever on DWI's behalf.
ALAG shall be liable for, and shall indemnify and hold DWI harmless from and
against, any and all claims made against DWI that arise out of any act or
failure to act by ALAG, or by any of its agents or employees.
4. FORCE MAJEURE. Neither party shall be responsible to the
other for any delay in or failure of performance of its obligations under this
Agreement to the extent attributable to causes beyond its reasonable control,
including but not limited to acts of God, fires, floods, strikes, acts of any
government or delays by carriers, provided that the party affected thereby
gives the other party prompt written notice of the occurrence of any event
which is likely to cause any such delay or failure and of its best estimate of
the length of any delay and the possibility that it will be unable to resume
performance; and provided further that said affected party shall use its best
efforts to expeditiously overcome the effects of that event and to resume
performance.
5. INDEMNITY. DWI shall hold harmless and indemnify ALAG, its
successors and assigns and its customers whether direct or indirect, against
any and all losses, damages and expenses (including attorneys' fees and other
costs of defending any action) which they, or any of them, may sustain or incur
as a result of any claim of negligence, breach of warranty or strict liability
in tort in connection with the DWI Products and DWI
<PAGE> 3
Components, except such as may be caused solely by the negligence of ALAG, its
successors and assigns, and/or its customers. ALAG shall be responsible for
assuring that all DWI Products and DWI Components purchased by ALAG conform to
the applicable Swiss regulations.
6. TERM. This Agreement shall be for a period of two (2) years
from the date hereof.
7. MISCELLANEOUS.
7.1. ASSIGNMENT. This Agreement may not be assigned by
either party without the prior written consent of the other.
7.2. NOTICES. Notification required or permitted by this
Agreement shall be deemed given upon confirmation of receipt by telecopy or
enclosure thereof in an adequately post-paid envelope, sent certified mail -
return receipt requested and addressed to the party to be given notice at the
address to which that party has previously requested, by notice hereunder, that
notices be sent or, if no such request has been made, as follows:
if to DWI:
David White, Inc.
11711 River Lane
P.O. Box 1007
Germantown, WI 53022-8207
Attn: Tony L. Mihalovich
if to ALAG:
Ammann Lasertechnik AG
Palmensteg 4
CH-8580 Amriswil
SWITZERLAND
Fax No.: 011-41-71-67-46-58
Attn: Hans-Rudolf Ammann
7.3. NO WAIVER. Neither party's failure to enforce at any
time any of the provisions of this Agreement shall be construed to be a waiver
of such provisions, or of the party's right at any time to enforce each and
every provision.
7.4. ENTIRE AGREEMENT. This Agreement supersedes any and
all prior agreements between ALAG and DWI with regard to the matters herein
contained, and constitutes the entire agreement between the parties hereto with
regard to such matters.
3
<PAGE> 4
7.5. AMENDMENTS. This Agreement may be amended, modified
or supplemented only by written agreement of ALAG and DWI.
7.6. GOVERNING LAW. This Agreement shall be governed by
and interpreted according to the laws of the state of Wisconsin.
4
<PAGE> 5
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date and year first above written.
DAVID WHITE, INC.
By: \S\
-------------------------------
Name:
Title:
AMMANN LASERTECHNIK AG
By: \S\
-------------------------------
Name:
Title:
5
<PAGE> 6
EXHIBIT A
TO
DAVID WHITE, INC. SUPPLY AGREEMENT
AMMANN LASERTECHNIK AG PRICING IN U.S. DOLLARS
The remainder of this Exhibit has been omitted and seperately filed with the
Commission with a request that it be given confidential treatment.
6
<PAGE> 1
EXHIBIT 10.16
TRANSFER AND ASSIGNMENT AGREEMENT
WHEREAS, AMMANN LASERTERTECHNIK A.G. of Palmensteg
4, CH-8580 Amriswil, Switzerland ("ALAG"), is the owner of Switzerland Patent
CH 672839 A5 issued on December 29, 1989, inventor Hans-Rudolf Ammann, entitled
"LASERSTRAHL-NIVELLIERGERAET"; Switzerland Patent CH 680019 A5, inventor
Hans-Rudolf Ammann issued on NEIGUNGSMESSGERAET UND LASERSTRAHL-NIVELLIERGERAET
MIT DIESEM NEIGUNGSMESSGERAET and Switzerland Patent CH 684227 A5 issued July
29, 1994 inventor Hans-Rudolf Ammann entitled "LASERSTRAHL-EMPFANGSVORRICHTUNG
ZU EINEM KANALBAULASERGERAET", and the inventions embodied therein, and all
patents and patent applications based on, derived from and counterparts
thereof, identified in Schedule A attached hereto and incorporated herein by
reference; and
WHEREAS, DAVID WHITE, INC. a Wisconsin corporation
having a place of business at 11711 River Lane, Germantown, Wisconsin ("DWI"),
has agreed to acquire from ALAG all patents, and patent applications identified
in Schedule A and ALAG has agreed to transfer to DWI, such patents, patent
applications, and inventions.
NOW, THEREFORE, for good and valuable
consideration in connection with the Ammann Lasertechnik AG Supply Agreement
and the David White, Inc. Supply Agreement of even date herewith between DWI
and ALAG and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, ALAG hereby sells, assigns and
transfers to DWI, its successors and assigns, ALAG's entire right, title and
interest in and to the patents, patent applications, and inventions covered
thereby and improvements thereto, any and all continuations, divisions,
continuations-in-part, extensions or reissues thereof, together with all
rights, interests and obligations running toward or granted to ALAG under any
previously executed assignment agreements between the inventor of each
invention embodied in each patent or application therefor listed on Schedule A
attached hereto, restricted, however, to those patents belonging to the same
patent group as the three Swiss patents listed above, and ALAG or any of its
predecessors in title; and together with any and all claims and demands ALAG or
its predecessors may have, at law or in equity, whether presently known,
unknown, accrued or to accrue, arising out of past or present infringements of
such patents, including the right to recover all claims for damages and
compensation. Such right, title and interest shall be held and enjoyed by DWI,
its successors and assigns, as fully and entirely as the same would have been
held and enjoyed by ALAG if this assignment and sale had not been made.
ALAG further hereby sells and assigns to DWI its
United States and foreign rights to said inventions and designs in all patent
granting countries of the world, including the right to file applications or
obtain patents for said inventions in its own name in said countries
<PAGE> 2
under the terms of the Paris Convention for the Protection of Intellectual
Property, together with all of ALAG's rights of priority and all other rights
under any and all international agreements to which the United States adheres.
ALAG hereby authorizes and requests any official, whose duty it is to issue in
any country a patent or patents on said inventions or improvements, to issue
patent or patents to DWI or its nominees, successors, or assigns.
ALAG further agrees that it will, at any time and
from time to time upon request of DWI and without further remuneration,
promptly provide to DWI all pertinent facts and documents relating to each
invention, patent, and patent applications, as may be known and accessible to
ALAG, and promptly execute and deliver to DWI or its legal representatives any
and all papers, instruments or affidavits that may be required to effect the
intent of this assignment or to vest in DWI full right, title and interest in
and to the respective patents or applications therefor listed on Schedule A
attached hereto, or to maintain and enforce such patents and patent
applications.
ALAG hereby covenants and warrants that the rights
and property herein conveyed are free and clear of any encumbrances, that it
has full right to convey the entire interest herein assigned. ALAG further
represents that it owns all rights conveyed hereunder, that it has not
previously sold, assigned, or otherwise transferred any interest in said
invention and improvements, or in said patent or patent applications, and that
it has not executed and will not at any time in the future execute any
agreement in conflict herewith.
<PAGE> 3
IN TESTIMONY WHEREOF, ALAG has caused this
assignment to be signed by its duly authorized officers and its seal to be
attached as of the 31st day of May, 1995.
AMMANN LASERTECHNIK AG
INDUSTRIES, INC. By: \s\
(CORPORATE SEAL) ----------------------------
Name:_____________________________
Title: _______________________
ATTEST:
_____________________________
Secretary
Switzerland
Zurich
Before me, a notary of the country and city aforesaid, personally appeared
____________________________, with whom I am personally acquainted (or proved
to me on the basis of satisfactory evidence), and who, upon oath, acknowledged
himself to be the _________________ of AMMANN LASERTECHNIK AG, that he knows the
seal of said corporation, that the seal affixed to the foregoing instrument is
that seal, that it was so affixed by authority of the Board of Directors of said
corporation, and that, by like authority, he executed the foregoing instrument
for the purposes therein stated, by signing the name of the corporation by
himself as __________________.
IN WITNESS HEREOF, I hereunto set my hand and seal of my office on this _____
day of _______, 1995.
(Seal)
__________________________
Notary Public
My Commission Expires: ___________________
3
<PAGE> 4
SCHEDULE A
UNITED STATES PATENTS AND PENDING APPLICATIONS
<TABLE>
<CAPTION>
Patents
-------
Patent No. Issue Date Inventor Title
------------- -------------------- ----------------- ----------------------
<S> <C> <C> <C>
4,854,703 August 8, 1989 Hans-Rudolf LASER BEAM LEVELLING
Ammann INSTRUMENTS
5,148,018 September 15, 1992 Hans-Rudolf LASER BEAM LEVELLING DEVICE
Ammann
</TABLE>
Pending U.S. Patent Application
<TABLE>
<CAPTION>
Serial No. Filing Date Inventor Title
------------- -------------------- ----------------- ----------------------
<S> <C> <C> <C>
08/088,210
-------------------- ----------------- ----------------------
</TABLE>
<TABLE>
<CAPTION>
FOREIGN PATENTS AND PENDING APPLICATIONS
----------------------------------------
Patents
-------
Patent No. Issue Date Inventor Title
----------------- -------------------- ----------------- ----------------------
<S> <C> <C> <C>
CH 672839 A5 December 29, 1989 Hans-Rudolf LASERSTRAHL-NIVELLIERGERAET
(Switzerland) Ammann
FR 2609797 A1 July 22, 1988 Hans-Rudolf NIVEAU A FAISCEAU LASER
(France) Ammann
CH 680019 A5 May 29, 1992 Hans-Rudolf NEIGUNGSMESSGERAET UND
(Switzerland) Ammann LASERSTRAHL-NIVELLIERGERAET MIT
DIESEM NEIGUNGSMESSGERAET
CH 684227 A5 July 29, 1994 Hans-Rudolf LASERSTRAHL-EMPFANGSVORRICHTUNG
(Switzerland) Ammann ZU EINEM KANALBAULASERGERAET
DE 9309883 U1 December 23, 1993 LASERSTRAHL-EMPFANGSVORRICHTUNG
(Germany) --------------- ZU EINEM KANALBAULASERGERAET
</TABLE>
4
<PAGE> 5
Pending Foreign Patent Applications
<TABLE>
<CAPTION>
Serial No. Filing Date Inventor Title
----------------- -------------------- ----------------- ----------------------
<S> <C> <C> <C>
DE 3738954 A1 July 28, 1988 Hans-Rudolf LASERSTRAHL - NIVELLIERGERAET
(Germany) Ammann
JP 63265111 A2 November 1, 1988 Hans-Rudolf LASER-BEAM LEVEL MEASURING
(Japan) Ammann INSTRUMENT
SE 8800094 A July 20, 1988 Hans-Rudolf LASERSTRALE -
(Sweden) Ammann NIVELLERGINGSAPPARAT
DE 4106114 A1 October 2, 1991 Hans-Rudolf LASERSTRAHL - NIVELLIERGERAET
(Germany) Ammann
JP 4350513 A2 December 4, 1992 Hans-Rudolf INSTRUMENT FOR LEVEL OF LASER
(Japan) Ammann LIGHT RAY
SE 9100669 A September 28, 1991 Hans-Rudolf AVVAEGNINGSANORDNING AV
(Sweden) Ammann LASERTYP
JP 6167341 A2 June 14, 1994 Hans-Rudolf LASER BEAM-RECEIVING DEVICE FOR
(Japan) Ammann WATERCOURSE-CONSTRUCTION LASER
APPARATUS
</TABLE>
5
<PAGE> 1
EXHIBIT 10.17
PLEDGE AGREEMENT
The undersigned Thomas Ammann, Hans-Rudolf Ammann,
Jolanda Ammann and Konrad Bachmaier acting jointly in the name and for the
account of Ammann Holding AG ("AHAG") in formation pursuant to Article 645 of
the Swiss Code of Obligations (hereinafter the "Pledgors"), hereby irrevocably
pledge in favour of and to David White Inc. ("DWI") the following registered
shares of Ammann Lasertechnik AG, Amriswil ("ALAG"):
- 30 A-shares with a nominal value of SFr. 1'000.--
each; (The above shares hereinafter collectively referred to as the "Shares"),
The ten (10) certificates no. 12 through 21, evidencing 3 A-shares each,
representing the shares pledged, shall be endorsed in blank and be delivered to
DWI's Swiss counsel Michael Hess, Dreikonigstrasse 7, 8022 Zurich, prior to or
on the Closing of June 8, 1995.
This pledge secures all claims of whatsoever nature which DWI has or may have
in the future against ALAG pursuant to the terms of the License Agreement to be
concluded between ALAG as licensee and DWI as licensor on or about June 8, 1995
(hereinafter the "Agreement").
In deviation of Art. 904 of the Swiss Civil Code ("CC") the future dividends
and distributions on the Shares pledged shall be for the
<PAGE> 2
benefit of the Pledgors. The voting rights vested with the Shares pledged
shall remain with the Pledgors pursuant to Art. 905 CC. In the event that ALAG
does not pay the royalty within 30 days after the due date as specified in the
Agreement, then DWI shall be entitled to give written notice to the Pledgors
specifying such default. If ALAG, within 60 days from receipt of such notice
has not cured such default, then DWI shall be entitled to dispose freely of
assets pledged without any court proceedings or administrative formalities nor
any previous notice.
The Pledgors commit themselves to do whatever is necessary to transfer to third
parties the Shares disposed of pursuant to the provisions of the present Pledge
Agreement (including but not limited to the registration of new shareholders,
if any, in Ammann Lasertechnik AG's stock ledger).
The Shares pledged shall be released and re-delivered by DWI to the Pledgors as
follows: Starting with the first royalty payment due under this Agreement, DWI
shall, annually, upon receipt of the annual royalty payment of US$ 25'000.--,
release and re-deliver a certificate evidencing 3 A-Shares pledged hereunder to
the Pledgors; provided, however, that DWI shall at no times retain less than 12
A-Shares as long as any royalty payment due under the Agreement remains
outstanding.
2
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000082414
<NAME> WHITE, DAVID INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> JUN-30-1995
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 2,437
<ALLOWANCES> (95)
<INVENTORY> 4,343
<CURRENT-ASSETS> 6,721
<PP&E> 8,382
<DEPRECIATION> (5,783)
<TOTAL-ASSETS> 10,034
<CURRENT-LIABILITIES> 2,516
<BONDS> 1,997
<COMMON> 2,077
0
0
<OTHER-SE> 2,871
<TOTAL-LIABILITY-AND-EQUITY> 10,034
<SALES> 9,099
<TOTAL-REVENUES> 9,133
<CGS> 6,765
<TOTAL-COSTS> 1,682
<OTHER-EXPENSES> 34
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 177
<INCOME-PRETAX> (288)
<INCOME-TAX> (45)
<INCOME-CONTINUING> (243)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (243)
<EPS-PRIMARY> (.47)
<EPS-DILUTED> (.47)
</TABLE>
