- - --------------------------------------------------------------
Filed with Securities and Exchange Commission July 16, 1996
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM 8-K
CURRENT REPORT
--------------------
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
July 1, 1996
Key Technology, Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Oregon O-21820 93-0822509
- - --------------- --------------------- ----------------
- - ---
(State or other (Commission File No.) (IRS Employer
jurisdiction of Identification
No.)
incorporation)
150 Avery Street, Walla Walla, Washington 99362
- - ----------------------------------------- --------
- - --
(Address of principal executive offices) (Zip
Code)
Registrant's telephone number, including area code:
(509) 529-2161
N/A
-------------------------------------------------------------
(Former name or former address, if changed since last report)
This Form 8-K consists of four pages. Exhibits are indexed on
page 3.
- - --------------------------------------------------------------
<PAGE>
Item 2. Acquisition or Disposition of Assets.
Effective July 1, 1996, Key Technology, Inc. (the
"Company") acquired Suplusco Holding B.V. ("Suplusco") and its
wholly-owned subsidiary Superior B.V. ("Superior"), both
located in Beusichem, The Netherlands. Superior is a
manufacturer of vibratory conveying equipment. The
acquisition includes all Superior operations. Superior will
continue to operate as a separate subsidiary of the Company
led by its existing management team, and its 25 employees will
be retained.
The acquisition occurred pursuant to a Stock
Purchase Agreement dated as of July 1, 1996 (the "Stock
Purchase Agreement") among the Company; Suplusco; and R.C. van
Beem, W.J. Arentsen, and W. de Haan (the "Suplusco
Shareholders"), who indirectly owned all of the outstanding
stock of Suplusco. The assets acquired include a building,
inventory, machinery, equipment and other operating assets.
The Suplusco Shareholders also agreed not to compete with the
Company or its subsidiaries for two years following
termination of their employment with Superior.
The purchase price for the stock was 5,200,000
guilders (U.S. $3.0 million), which includes certain deferred
payments to be paid over three years as provided in the Stock
Purchase Agreement. At closing, the Company also paid certain
debts of Suplusco in the aggregate amount of 1,635,000
guilders (U.S. $950,000). The portion of the purchase price,
which was determined by negotiation between the Company and
the Suplusco Shareholders, was paid in cash from operating
capital of the Company.
The foregoing description of the Stock Purchase
Agreement is qualified in its entirety by reference to the
copy of same attached hereto as Exhibit 2.1.
- - --------------------------------------------------------------
<PAGE>
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits
Page
----
(a) Financial Statements of Businesses Acquired and
Pro Forma Financial Information.
It is impractical to provide the required
financial statements and pro form financial information
relating to the acquisition at the present date. The
Company will file the required statements and information
not later than September
13, 1996.
(b) Exhibits.
The following exhibit is being filed herewith:
2.1 Stock Purchase Agreement, dated as of July 1,
1996, among the Company and the selling
stockholders (omitting all schedules and
exhibits*).
* A list of all schedules and exhibits is
provided with the Stock Purchase Agreement.
The undersigned Registrant hereby agrees to
furnish supplementally to the Commission a copy
of any omitted schedule or exhibit to the Stock
Purchase Agreement upon request.
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
KEY TECHNOLOGY, INC.
Date: July 15, 1996 By: /s/ Steven D. Evans
--------------------------
Steven D. Evans
Chief Financial Officer and
Vice President, Finance and
Administration
<PAGE>
EXHIBIT INDEX
Exhibit No. Page
- - ----------- ----
2.1 Stock Purchase Agreement, dated as of
July 1, 1996, among the Company and
the selling stockholders (omitting
all schedules and exhibits*).
* A list of all schedules and exhibits is provided with the
Stock Purchase Agreement. The undersigned Registrant
hereby agrees to furnish supplementally to the Commission
a copy of any omitted schedule or exhibit to the Stock
Purchase Agreement upon request.
KEY TECHNOLOGY, INC.
SUPLUSCO HOLDING B.V.
STOCK PURCHASE AGREEMENT
------------------------
The parties to this Stock Purchase Agreement dated
as July 1, 1996 are Suplusco Holding B.V., a corporation
organized under the laws of the Netherlands (the "Company");
R.C. van Beem, W.J. Arentsen, and W. de Haan (the
"Shareholders"), who indirectly own all of the outstanding
stock of the Company; the Shareholders' individually owned
corporations which directly own the Company's shares, Robs-
Roiz B.V., Arentsen B.V. and Hagrocom B.V. (the "Shareholder
B.V.s"); and Key Technology, Inc., an Oregon U.S.A. cor-
poration ("Purchaser").
R E C I T A L S:
A. Shareholders through their personally owned
corporations as recited above are the owners of all of the
outstanding stock of the Company, which is the owner of all of
the outstanding capital stock of Superior B.V., a corporation
organized under the laws of the Netherlands ("Superior").
Superior is engaged in the manufacture and sale of vibratory
and conveying equipment in European markets. The shares of
the Company owned by each of the Shareholder B.V.s are as
follows:
Shareholder B.V. Company Shares Owned
---------------- --------------------
Robs-Roiz B.V. 488
Arentsen B.V. 61
Hagrocom B.V. 61
The nominal value representing the entire issued and
outstanding share capital of the Company is 61.000.
B. Purchaser and its affiliates are engaged in the
business of the manufacture and sale of automated optical
inspection systems and material handling equipment in global
markets with its principal place of business located in Walla
Walla, Washington, U.S.A.
C. Shareholders wish to transfer 100 percent of
the ownership of the Company to Purchaser by having Purchaser<PAGE>
<PAGE>
purchase all of their indirectly owned shares in the Company,
such shares hereinafter referred to as: "the Shares", and
Purchaser wishes to acquire all of the Company's outstanding
shares of capital stock on the terms and conditions set forth
herein.
In consideration of the premises and the
representations and warranties contained herein, the parties
agree as follows:
1. Purchase and Sale Transaction.
-----------------------------
1.1 Sale of Shares. On the Closing Date,
Shareholders shall cause each of their personally owned
corporations, Robs-Roiz B.V., Arentsen B.V. and Hagrocom B.V.,
to sell to Purchaser, and Purchaser shall purchase from the
Shareholder B.V.'s the following number of shares of the
Company's outstanding stock:
Total Shares
Name of Shareholder B.V. to be Sold to Purchaser
------------------------ -----------------------
Robs-Roiz B.V. 488
Arentsen B.V. 61
Hagrocom B.V. 61
1.2 Pre-Closing Audit. At Purchaser's expense,
Deloitte Touche Tohmatsu International has prepared an audit
of the Company's consolidated balance sheet as per May 31,
1996 and its consolidated income statement for the 11-month
period then ended (the audit is referred to herein as the
"Audit" and the audited statements are referred to herein as
the "Audited Statements, attached hereto as Exhibit A and
showing a Shareholders Equity as defined in section 1.5 below
of DFL 1,120,284").
1.3 Purchase Price To Be Paid at Closing. The
aggregate purchase price for the Shares will be Dfl 5,200,000
subject to adjustment as to the deferred payments in Section
1.4 as provided in Section 1.5 below. The purchase price
payable in Dutch guilders at Closing to each of the
Shareholder B.V.s shall be the following amounts:
Name of Shareholder B.V. Amount
------------------------ ------
Robs-Roiz B.V. Dfl 3,380,000
Arentsen B.V. Dfl 295,000
Hagrocom B.V. Dfl 295,000<PAGE>
<PAGE>
1.4 Deferred Payments. In addition to the payments
at Closing, Purchaser will pay the Deferred Payments provided
herein. Subject to adjustment as provided in Section 1.5 below
and to the proviso regarding employment below in this Section
1.4, the Purchaser will pay to the Shareholder B.V.'s the
following additional payments on July 1st of each of the years
1997, 1998 and 1999, together in each instance with interest
on such amount computed at 7 percent per annum on each annual
payment date:
Additional Annual
Name of Shareholder B.V. Payment Amounts
------------------------ -----------------
Robs-Roiz B.V. Dfl 260,000
Arentsen B.V. Dfl 75,000
Hagrocom B.V. Dfl 75,000
The right to receive such additional payments is subject to
(i) the provisions for adjustment as provided in Section 1.5
below and (ii) to the following sentence. If a shareholder's
employment with Superior is terminated by Superior because the
Shareholder (i) commits any act of gross misconduct or repeats
or continues (after written warning) any other serious breach
of his obligations under his Employment Agreement referenced
in Section 7.6 below; or (ii) is dismissed for reasons covered
by Article 7A:1639 p (dringende redenen) Netherlands Civil
Code; or (iii) commits any act of material dishonesty relating
to Superior, or if a Shareholder terminates his employment
without cause (cause for this purpose limited to non-payment
of salary), Purchaser shall have no obligation to make any
deferred payment or portion thereof to the respective
Shareholder B.V. after the date on which such termination
becomes effective. If employment is terminated by Key or
Superior without cause as provided in the foregoing clauses
(i), (ii) or (iii) in this Section 1.4, or in the event of
death or complete disability, or if the shareholder terminates
for cause (cause for this purpose is limited to non payment of
salary), shareholder will continue to receive the scheduled
deferred payments at the regularly scheduled payment dates.
The deferred payments shall be secured by a standby letter of
credit confirmed by an irrevocable bank guarantee to be
established by Purchaser, as provided in Section 7.8 below.
1.5 Adjustment to Deferred Payments. The deferred
purchase price to be paid on July 1, 1997 will be subject to
adjustment based on the results of the Updated Audit. The
Updated Audit will be an audit of the Company's financial
statements for the year ended June 30, 1996 to be prepared by
Deloitte Touche Tohmatsu International consistent with the
policies and practices used with the May 31 Audit. To the
extent the Company's balance sheet at June 30, 1996 as
determined by the Updated Audit reflects Shareholders' Equity
(defined as total<PAGE>
<PAGE>
assets in excess of total liabilities) of more than
Dfl 1,365,000, the purchase price will be increased by one
guilder for each guilder in excess of Dfl 1,365,000. To the
extent the Updated Audit determines that the Company's
Shareholders' Equity is less than Dfl 1,196,000, the purchase
price will be decreased by one guilder for each guilder by
which Shareholders' Equity is less than Dfl 1,196,000. None of
the costs of the Audit or the Updated Audit will be included
in the Shareholders Equity calculation.
In addition, the Parties have established an
estimated net profit of Dfl 41,000 for an order of Superior
product to be shipped to McCains in July of 1996. If all
components of the McCains order are not ready to ship by June
30, 1996, a reduction of up to Dfl 41,000 will be made to the
July 1, 1997 Deferred Payments to the extent of the percentage
of the total order not ready for shipment multiplied by Dfl
41,000. Any increase or decrease in the aggregate purchase
price shall be allocated 80 percent to Robs-Roiz B.V., 10
percent to Arentsen B.V. and 10 percent to Hagrocom B.V., and
will be added to or subtracted from the July 1, 1997 payments.
If the updated Audit establishes Shareholders Equity
at Dfl 1,096,000 or less, the Shareholders may at their own
expense request a separate audit by a firm of registered
auditors. If that separate audit concludes that Shareholders
Equity should not have been reduced to the extent determined
by the updated Audit, the parties will attempt to resolve any
differences by agreement. If they can not agree, the dispute
will be finally resolved by a third audit firm appointed by
the President of the Netherlands Institute of Registered
Auditors, with the cost thereof to be shared equally by
Shareholders and Purchasers.
1.6 Transfer Taxes. Transfer taxes imposed under
the laws of the Netherlands, if any, on the transfer of the
shares by the Shareholder B.V.'s or the control of the Company
and Superior will be paid by the Shareholder B.V.'s. Purchaser
accepts any liability for transfer taxes attributable to real
estate.
2. Closing.
-------
At July 1, 1996 or on such other date as the parties
may mutually agree (the "Closing Date"), the parties shall
consummate the transaction contemplated hereby (the "Closing")
by the Shareholder B.V.'s transferring the shares to the
Purchaser through the execution by the parties of a notarial
deed of transfer in the form of Schedule 2 attached hereto,
which will be passed by civil law notary Mr. F.W. Oldenburg of
the law and notary firm Nauta Dutilh at Rotterdam. The
Shareholder B.V.'s undertake to cause the Company to
acknowledge the transfer of the shares on the Closing Date and
to register such transfer in its<PAGE>
<PAGE>
Register of Shareholders forthwith. At the date hereof the
parties shall further take such other actions as required to
be taken pursuant to this Agreement. The Purchaser will
deliver by wire transfer to the above law and notary firm
funds in the aggregate amount of the purchase price to be paid
at Closing, subject to satisfaction or waiver of the
conditions set forth in Sections 6 and 7 below.
3. Shareholders' Representations.
-----------------------------
Sections 3.1 through 3.26 below set forth the
representations of the Shareholders in connection with the
sale of the Company's stock to Purchaser. As to each
representation, the Shareholders have prepared and attached to
this Agreement specified Disclosure Schedules. The Disclosure
Schedules and the related Disclosure Letter are intended to
set forth all information necessary to correct or modify each
representation, identified to correspond numerically to the
following section numbers. Except as set forth in the
Disclosure Letter, the Shareholders and each Shareholder B.V.
jointly and severally represent to Purchaser as follows:
3.1 Organization and Valid Existence. The Company
and Superior are corporations duly organized and validly
existing under the laws of the Netherlands and each has all
requisite corporate power and authority, and has obtained all
licenses or permits required, to own, lease and operate its
properties and to carry on its business as now being
conducted.
3.2 Charter Documents and Articles of Association.
Attached hereto as Disclosure Schedules 3.2 are complete and
correct copies of the Company's and Superior's charter
documents, Articles of Association and minutes of all meetings
of the directors or shareholders held since Juli 9, 1993.
3.3 Capital Stock. The authorized capital stock of
the Company consists of 2.000 shares of Common Stock, of which
610 are outstanding. No other classes of stock of the Company
are authorized. The Shareholder B.V.'s own beneficially and
of record (through their wholly owned corporations) all
outstanding shares of the Common Stock of the Company, holding
such shares in the amounts shown in Section 1 above. The
Shareholders' register of the Company, a copy of which is
attached as Disclosure Schedule 3.3, correctly and completely
reflects the current and former shareholders of the Company
and all particulars required to be contained by such register.
All outstanding shares of the Company's Common Stock are
validly issued, fully paid and nonassessable. There are no
outstanding options, contracts, calls, commitments, preemptive
rights or demands of any nature relating to the Common Stock
of the Company or Superior. No person may assert any right
for any violation of any preemptive<PAGE>
<PAGE>
rights of any past or present shareholder of the Company.
There are no voting agreements or purchase or sale agreements
applicable to any of the Company's outstanding Common Stock,
except as set forth in any specifically identified Exhibit or
Schedule to this Agreement. There are no pledges, liens or
encumbrances applicable to the outstanding shares of capital
stock of the Company or Superior, and the Shareholder B.V.'s
and the Company, respectively, have good and unencumbered
title to all such shares. There are no restrictions on the
transfer of the shares ("blokkeringsbepalingen") other than as
set forth in the Articles of Association.
3.4 Subsidiaries. The Company owns 100 percent of
the outstanding capital stock of Superior, and except for such
ownership the Company does not have any other subsidiaries and
at the date hereof has no equity interest in any other
corporation, partnership, joint venture or association.
3.5 Authority Relative to Agreement. The
Shareholders and the Company have the requisite power to
execute and deliver this Agreement and to perform their
respective obligations hereunder. The Shareholders and the
Company have taken (or by the Closing Date will have taken)
all actions required by law, or otherwise to authorize the
execution, delivery and performance of this Agreement. Upon
the execution and delivery of this Agreement by the parties,
this Agreement will be the valid and legally binding
obligation of the Shareholders and the Company enforceable in
accordance with its terms, subject as to enforcement only to
bankruptcy, insolvency, reorganization, moratorium or other
laws affecting the enforceability of creditors' rights
generally or to general equitable principles.
3.6 Effect of Agreement. No consents or approvals
are required to be obtained from any governmental agencies or
are required under the provisions of any instruments to be
obtained from any third party in connection with the execution
and consummation of this Agreement by the Company or the
Shareholders. The execution and delivery of this Agreement
and consummation of the transactions contemplated hereby will
not result in the breach of any term or provision of, or
constitute a default under, any provision or restriction of
any note, mortgage, indenture, agreement, license or other
instrument to which the Company or either of the Shareholders
is a party, or to the best of the Shareholders' knowledge, of
any judgment, order or decree, rule or regulation of any court
or administrative agency to which the Company or either of the
Shareholders is a party or by which any of them or any of the
Company's assets is bound, nor will it conflict with the
provisions of the Articles of Association of the Company, or
to the best of the Shareholders' knowledge, violate any
statute, license or regulation of any governmental authority.<PAGE>
<PAGE>
3.7 Financial Statements. In addition to the
Audited Statements, attached as Disclosure Schedule 3.7 is a
true copy of the Company's audited financial statements
(balance sheet and profit and loss account) for the year ended
June 30, 1995, together with explanatory notes thereto and the
annual report (jaarverslag) (all such statements are
collectively referred to herein as the "Financial
Statements"). The Financial Statements were prepared in
accordance with the books and records of the Company, fairly
present the financial position and results of the Company's
operations at and for the periods indicated, and were prepared
in accordance with accounting principles generally accepted in
the Netherlands and applied consistently with prior periods
except as otherwise noted in any footnotes to the Financial
Statements.
3.8 Undisclosed Liabilities. The Company does not
have any liabilities or obligations of any kind not otherwise
fully covered by existing insurance policies which are listed
as part of Disclosure Schedule 3.8 (including any material
claims under any product warranties), whether accrued,
absolute, contingent or otherwise, except:
(a) to the extent set forth in the Financial
Statements and not heretofore paid or discharged;
(b) to the extent specifically set forth in
any Schedules specifically made a part of this Agreement; and
(c) those incurred in or as a result of the
ordinary course of the Company's business since May 31, 1996,
all of which have been consistent with past business practices
of the Company and none of which, alone or in the aggregate,
is material and adverse to the Company.
3.9 Absence of Material Changes. Since June 30,
1995, and except as expressly identified on Disclosure
Schedule 3.9 attached hereto, there has not been:
(a) any material adverse change in the
financial condition or in the operations of the business of
the Company from that reflected by the Audited Statements;
(b) any damage, destruction or loss not
adequately covered by insurance, which uninsured damage,
destruction or loss materially and adversely affects the
business or assets of the Company nor has there been any
damage, destruction or loss (determined without regard to
insurance coverage), aggregating more than Dfl 10,000;
(c) any declaration, setting aside or payment
of any cash or noncash dividend or any other distribution with
respect to the Company's capital stock or any direct or
indirect<PAGE>
<PAGE>
redemption, purchase or other acquisition by the Company of
any such stock, or any payment of any other kind to any
stockholder of the Company or any affiliate of any stockholder
except for normal compensation payments consistent with the
monthly accruals reflected in the audited income statement for
the current year through May 31, 1996, and all as recorded in
the Company's books and records;
(d) any option or warrant to purchase the
Company's capital stock granted to any person or any deferred
compensation agreement entered into between the Company and
any of its officers, directors, employees or consultants;
(e) any strikes, work stoppages or other
material labor trouble;
(f) any issuance or sale by the Company of any
stocks, bonds or other securities of the Company;
(g) any mortgage, pledge, lien or other
encumbrance or security interest created on any material
assets, tangible or intangible, of the Company, or assumed by
the Company with respect to any such assets;
(h) any material indebtedness, liability or
obligation (whether absolute, accrued, contingent or
otherwise) incurred, or other material transaction engaged in,
by the Company, except those incurred or conducted in the
ordinary course of business consistent with past practices as
reflected in the Financial Statements.
(i) any material obligation or liability
discharged or satisfied, other than current liabilities or
current portions of long-term liabilities shown on the
Financial Statements and current liabilities incurred since
the date thereof in the ordinary course of business consistent
with past practices as reflected in the Financial Statements;
(j) any sale, transfer, or other disposition
of any material tangible asset of the Company, except for
sales of finished products in the ordinary course of business;
(k) any action taken by the Company to amend,
terminate or waive any material contract or right belonging to
the Company other than in the ordinary course of business;
(l) any rights transferred or granted under
any concessions, leases, licenses, agreements, trademarks,
trade names or copyrights or with respect to any know-how or
other property rights;<PAGE>
<PAGE>
(m) any wage or salary increase to any officer
or employee not previously disclosed to Purchaser;
(n) any capital expenditure or any commitment
therefor in excess of Dfl 10,000;
(o) any transaction, contract or commitment
that was not in the ordinary course of business;
(p) any loss of a supplier or suppliers or
customer or customers which will have a materially adverse
effect on current year or future sales;
(q) any material change with respect to the
operations of its business, including its method of
accounting; or
(r) any other event or condition of any
character pertaining to and materially and adversely affecting
the results of operation or business or financial condition of
the Company.
3.10 Tax Matters and Social Security Contributions.
The Company has filed with the appropriate governmental
agencies all tax and social security returns and reports
required to be filed by it and has paid, or made provisions
for the payment of, and made adequate reserves therefor on its
books and records for, all taxes and social security
contributions which have become due. A copy of the last
return filed with the required authorities has been provided
to Purchaser. All such returns and reports are accurate and
complete to the best of the Company's knowledge. There is no
tax payable by the Company for any period prior to the Closing
Date other than taxes for the current fiscal year as reflected
in the Audited Statements, and the Company has paid in full
all taxes, interest, penalties, assessments or deficiencies
relating to all prior periods. The Company has made with-
holding of tax (and transmittals of the same) to the extent
required to be made under all applicable tax statutes and
regulations.
3.11 Litigation. There is no action, proceeding or
investigation pending or, to the best knowledge of the
Shareholders, threatened, which might result in any material
adverse change in the Company's or Superior's business,
property or assets after the Closing Date.
3.12 Accounts Receivable and Inventory. The
accounts receivable reflected on the Audited Balance Sheet and
those existing at Closing arose from bona fide transactions in
the ordinary course of the Company's business, and are fully
collectible less any reserve for bad debts as set forth in the
Audited Statements. The Dfl 22,000 reserve for uncollectible
accounts is adequate to cover all accounts receivable shown on<PAGE>
<PAGE>
the Audited Statement. To the extent collections from all such
accounts by December 31, 1996 is less than the full amount of
such listed receivables less the Dfl 22,000 reserve, the
deficiency shall be deducted from the Deferred Payments due
July 1, 1997, shared 80-10-10 by the three Shareholder B.V.'s.
Inventories reflected on the Audited Balance Sheet and those
existing at Closing reflect a complete and accurate inventory,
determined consistently with prior practices, and include
appropriate adjustment for obsolete, damaged, unsalable or
unusable goods according to generally accepted accounting
principles. Since June 30, 1995, the Company has sold its
inventories and collected its receivables in the ordinary
course of its business consistent with prior business
practice.
3.13 Accounts Payable. The accounts payable of the
Company reflected on the Audited Balance Sheet and those
existing at Closing arose from bona fide purchases of goods or
services in the ordinary course of business.
3.14 Leases and Contracts. All material leases and
contracts to which the Company is a party are in good
standing, valid and effective; and there is not under any of
such leases or contracts any existing default or any event
which with notice or lapse of time or both would constitute
such a default by the Company or by another party thereto.
All real property owned or leased by the Company and the uses
being made thereof comply with all applicable laws,
regulations, ordinances and restrictions with respect to the
use or nature of activities conducted on such property in all
material respects. All leases and contracts, excluding
purchase orders and employment contracts included as part of
Disclosure Schedule 3.21, to which the Company or Superior is
a party with a duration of more than 30 days following the
Closing Date or requiring aggregate payments to or from the
Company or Superior in excess of Dfl 10,000 are listed and
attached as part of Disclosure Schedule 3.14.
3.15 Licenses and Regulations; Compliance with Laws.
All governmental licenses, approvals, zoning authorizations,
registrations and permits, environmental or otherwise,
required in order for the Company and Superior to transact its
business as now being conducted have been obtained. The
conduct of the operations and the business of the Company does
not violate any provisions of any applicable laws, orders,
regulations or requirements, including but not limited to any
laws, orders, regulations or requirements of any EC
institutions or any governmental, provincial or municipal
administrative body or authority having jurisdiction in
relation thereto. The Company has complied with all EC and/or
national and/or provincial and/or municipal laws, provisions,
regulations and orders in respect of employment and employment
practices and particularly in respect of work-place
protection, hygiene, health and safety protection. There are
no penalties, fines, assessments or remedial costs that<PAGE>
<PAGE>
may be imposed upon or against the Company based on prior
practices or the condition of its assets at the Closing Date
under any zoning, pollution, environmental or safety laws or
regulations or laws or regulations relating to illegal
payments.
3.16 Conflicting Interest. None of the Shareholders
nor any officer or director of the Company, or to the best
knowledge of the Shareholders any relative of any of them, has
had, or has any direct or indirect equity interest in any
competitor, customer, supplier or other person, firm or
corporation which has had, any material business relationship
or material transaction with the Company during the last two
fiscal years and up to and including the date hereof, or which
is a party to, or has property which is the subject of, any
material business arrangement with the Company. For this
purpose, any spouse, lineal descendant, parent, brother or
sister of any officer or director of the Company, and the
spouse of any of the above, shall be deemed a relative of such
person.
3.17 Supply Arrangements. To the best knowledge of
the Shareholders, none of the suppliers has indicated that it
does not intend to continue its existing supplier relationship
with the Company.
3.18 Customers. The list of customers who purchased
90 percent or more of the Company's sales of products
(including sales by KSK) in 1994 and 1995 are attached as
Disclosure Schedule 3.18. Except as disclosed on such
Schedule, to the best knowledge of the Shareholders, none of
such customers has indicated that it does not intend to
continue its existing customer relationship with the Company.
3.19 Intellectual Property Rights.
(a) The Company and Superior each has
sufficient title and ownership of or rights of use to all
patents, trademarks, service marks, trade names, copyrights,
trade secrets, proprietary rights and processes, registrations
and applications therefor (collectively, "Intellectual
Property") used in its business as now conducted, including
all Intellectual Property acquired from KSK as referenced in
Section 3.24 below, without any conflict with or infringement
of the rights of others. Except as reflected on Disclosure
Schedule 3.19 there are no outstanding options, licenses or
agreements of any kind relating to the foregoing, nor is the
Company or Superior bound by or a party to any options,
licenses or agreements of any kind with respect to the
Intellectual Property of any other person or entity. Neither
the Company nor Superior has received any communications or is
aware of any entity alleging that Superior has violated or, by
conducting its business as proposed, would violate any
Intellectual Property of any other person or entity. Neither
the Company nor Superior is aware that any of its<PAGE>
<PAGE>
employees is obligated under any contract (including licenses,
covenants or commitments or any nature) or other agreement, or
subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of
his or her best efforts to promote the interests of Superior
or that would conflict with its business as proposed to be
conducted. Neither the execution nor delivery of this
Agreement, nor the carrying on of Superior's business by its
employees will conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default
under, any contract, covenant or instrument under which any of
such employees is now obligated. The Shareholders do not
believe it is or will be necessary to utilize any inventions
of any of Superior's employees (or persons it currently
intends to hire) made prior to their employment by Superior.
All of the Intellectual Property is vested in (or, if
applicable, leased or licensed in by) the Company or Superior
free and clear of any equities, claims, liens, encumbrances or
restrictions of any kind whatsoever. Disclosure Schedule 3.19
sets forth all patents, patent applications, copyrights,
copyright applications, trademarks and trade names (registered
or unregistered) and any other Intellectual Property owned or
licensed by the Company or Superior or in which the Company or
Superior has any interest of any kind.
(b) Neither the Company nor Superior is making
use of any patentable or unpatentable invention or any
confidential information in which any of its present or, to
its actual knowledge, past employees, has claimed a
proprietary interest; and Shareholders are not actually aware
of any facts that would give rise to such a claim.
3.20 Benefit Plans. Disclosure Schedule 3.20
contains a complete list of the Company's or Superior's
Employee Plans, if any. For purposes of this section, the
term "Employee Plan" includes all present (including those
terminated or transferred within the past two years) plans,
programs, agreements, arrangements, and methods of
contribution or compensation (including all amendments to and
components of the same, such as a trust with respect to a
plan) providing any remuneration or benefits, other than
current cash compensation, to any current or former employee
of the Company or to any other person who provides services to
the Company. The term Employee Plan includes, but is not
limited to, pension, retirement, profit sharing, stock option,
stock bonus, and deferred compensation plans.
3.21 Employees. Disclosure Schedule 3.21 contains a
true and correct list naming each of the Company's and
Superior's employees as of May 31, 1996, and their rates of
compensation in effect at such date, all of which information
is true, complete and correct in all material respects as of
the date hereof, together with all existing employment
contracts. To the best<PAGE>
<PAGE>
knowledge of the Shareholders, there is no material violation
by the Company of any laws respecting employment and
employment practices, terms and conditions of employment, and
wages and hours, and the Company is not engaged in any unfair
labor practices, which could materially and adversely affect
in any way its financial condition, businesses, prospects,
assets, properties or results of operations. The Shareholders
have no knowledge, and the Company has not been notified, of
any pending or threatened labor strikes, claims of unfair
labor practices or other grievances or demands for arbitration
or other proceedings regarding labor matters. Except as set
forth in Disclosure Schedule 3.21, all obligations of the
Company directly to its employees, to former employees or to
trust or other funds or to any government agency for
unemployment compensation benefits, workers compensation
benefits, accident, sickness and disability benefits, pension,
profit sharing and any other retirement benefits, social
security benefits, vacation and holiday pay, severance or
termination pay, bonuses and other forms of compensation, or
any other benefits, have been paid or adequate accruals
therefor have been made in the Financial Statements. Except
as disclosed on Disclosure Schedule 3.21, there are no actual,
threatened or pending claims, complaints, charges or actions
by any of such persons against the Company or any of its
officers, directors, shareholders or employees in connection
with, arising from or relating to termination of employment
with the Company. Except as set forth on Disclosure Schedule
3.21, the Company does not have any manuals or policies,
whether oral or written, with respect to its employees,
whether related to conditions of employment, termination of
employment or otherwise. Except as set forth in Disclosure
Schedule 3.21, the Company does not have any agreement, oral
or written, with any of its employees that (a) specifies a
term of employment, or (b) specifies any limit on the
Company's right to terminate any employee. The Company's
Collective Labor Agreement (CAO voor de klein metaal) is
attached to and made part of Disclosure Schedule 3.21.
3.22 Bank Accounts; Guaranties; Powers of Attorney.
Disclosure Schedule 3.22 contains a true and complete list
showing (i) the name of each bank or other financial
institution in which the Company has an account or safe
deposit box, and the names of all persons authorized to draw
thereon or to have access thereto, (ii) all guaranties,
endorsements or indemnifications by the Company or in favor of
the Company of any person firm or corporation and (iii) the
names of all persons if any holding powers of attorney for the
Company.
3.23 Warranty Exposure. Neither the Company nor
Superior has any exposure for warranty expense or other
requirement to perform upgrades or take corrective action with
respect to products sold by Superior, KSK or any predecessor
in interest at any time prior to Closing which in the
aggregate will<PAGE>
<PAGE>
exceed 1.5 percent of the Company's consolidated sales for the
12-month period ended June 30, 1996 as will be reflected in
the Updated Audited Statements.
3.24 KSK Transaction. All agreements and documents
applicable to the transaction entered into by the Company with
J. Kuhnen, h.o.d.n. KSK Schwing- und Fordertechnik on March
13, 1996 are attached hereto as Disclosure Schedule 3.24.
3.25 Representations Applicable to Superior. Unless
stated in a manner so as to expressly exclude Superior, all
representations set forth in this Section 3 with respect to
any matter concerning the Company, and all references to the
Company, shall be construed to include both the Company and
Superior.
3.26 Disclosure. Neither this Agreement nor any
Schedule attached hereto, nor any certificate or financial
statement delivered by the Company or to be delivered by the
Company at Closing, contains or will contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make statements contained herein and
therein not misleading.
4. Purchaser's Representations and Warranties.
------------------------------------------
Purchaser represents and warrants to the
Shareholders as follows:
4.1 Organization and Valid Existence. Purchaser is
a corporation duly organized and validly existing under the
laws of the state of Oregon, U.S.A.
4.2 Authority Relative to Agreement. Purchaser has
the corporate power to execute and deliver this Agreement and
to perform its obligations hereunder. Purchaser has taken (or
by the Closing Date will have taken) all action required by
law, its Articles of Incorporation, its Bylaws and otherwise
to authorize the execution, delivery and performance of this
Agreement by it.
4.3 Effect of Agreement. No consents or approvals
are required to be obtained from any governmental agencies or
are required under the provisions of any instruments to be
obtained from any third party in connection with the execution
and consummation of this Agreement by Purchaser. The
execution and delivery of this Agreement and consummation of
the transactions contemplated hereby will not result in the
breach of any term or provision of, or constitute a default
under, any provision or restriction of any note, mortgage,
indenture, agreement, license or other instrument, or of any
judgment, order or decree, rule or<PAGE>
<PAGE>
regulation of any court or administrative agency to which
Purchaser is a party or by which it is bound, nor will it
conflict with the provisions of the Articles of Incorporation
or Bylaws of Purchaser, or to the best of Purchaser's
knowledge, violate any statute, license or regulation of any
governmental authority.
4.4 Enforceability. Upon the execution and
delivery of this Agreement by the parties, this Agreement will
be the valid and legally binding obligation of Purchaser
enforceable in accordance with its terms, subject as to
enforcement only to bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforceability of
creditors' rights generally or to general equitable
principles.
5. Covenants of the Shareholders.
-----------------------------
5.1 Access to Information. During any period
between the execution of this Agreement and Closing, the
Shareholders shall have given Purchaser and its authorized
representatives full and unrestricted access, during normal
business hours, to all properties, books, records, contracts,
documents, and leases of the Company and Superior and shall
furnish or cause to be furnished to Purchaser and its
authorized representatives all information with respect to its
affairs and business as Purchaser or its authorized
representatives may reasonably request. Purchaser agrees that
it will, and will cause its representatives to, hold in strict
confidence all information so obtained from the Company.
5.2 Preservation of Business. During the period
between execution of this Agreement and Closing, the
Shareholders shall cause the Company to:
(a) use its best efforts to conduct its
business in a reasonable and prudent manner in accordance with
past practices;
(b) engage in no transaction out of the
ordinary course of business;
(c) use its best efforts to preserve its
existing business organization and relations with its
employees, customers, suppliers and others with whom it has a
business relationship;
(d) not dispose of any of its assets, except
such as are disposed of, retired and replaced in the ordinary
course of business;<PAGE>
<PAGE>
(e) conduct its business in compliance with
all applicable laws and regulations;
(f) not make any distribution to Shareholders
except for compensation payments consistent with prior periods
since June 30, 1995; and
(g) not pay any bonuses or make any salary or
wage increases not previously disclosed to and approved by
Purchaser.
6. Conditions to Purchaser's Obligations.
-------------------------------------
Each and every obligation of Purchaser to be
performed on the Closing Date or thereafter, as the case may
be, shall be subject to the satisfaction at the Closing or
prior thereto of the following conditions, any of which may be
waived in writing by Purchaser:
6.1 Representations and Covenants. The
representations made by the Shareholders in this Agreement and
documents to be provided by the Company pursuant to this
Agreement shall be true in all material respects on and as of
the Closing Date with the same effect as though such repre-
sentations had been made or given on and as of the Closing
Date. The Company and the Shareholders shall have performed
all obligations and complied with all covenants required to be
performed or complied with by it and them prior to the Closing
Date under this Agreement. Purchaser shall have received at
Closing a certificate signed by the Shareholders to the
foregoing effect.
6.2 No Material Adverse Change. There shall have
been no loss or destruction of any material assets of the
Company since June 30, 1995.
6.3 Necessary Consents. Any consents or approvals
required to consummate the transactions herein provided shall
have been obtained. It is acknowledged that it is the
responsibility of Purchaser to obtain any consent required
from Bank voor Zeeland N.V. in connection with any
indebtedness owed to such Bank as reflected in the Audited
Financial Statements.
6.4 Proceedings and Instruments Satisfactory. All
documents incident to the transactions contemplated by this
Agreement shall be reasonably satisfactory in form and
substance to Purchaser and its counsel, and the Company shall
have made available to Purchaser for examination the originals
or true and correct copies of all records and documents
relating to the business and affairs of the Company which
Purchaser may reasonably request in connection with such
transactions.<PAGE>
<PAGE>
6.5 No Litigation. No investigation, suit, action
or other proceeding shall be threatened or pending before any
court or governmental agency or other agency or authority
which in Purchaser's opinion may have a material adverse
effect on the Company.
6.6 Employment Agreements. Purchaser and each of
the Shareholders shall have entered into Employment Agreements
in the form of Exhibits B-1, B-2 and B-3 attached hereto.
6.7 Notarial deed. Purchaser shall have received a
notarial copy or other suitable copy of the Notarial Deed
providing for the transfer of all outstanding shares of the
Company's Stock.
7. Conditions to Shareholders' Obligations.
---------------------------------------
Each and every obligation of the Shareholders to be
performed on the Closing Date or thereafter, as the case may
be, shall be subject to the satisfaction at the Closing or
prior thereto of the following conditions, any of which may be
waived in writing by the Shareholders:
7.1 Representations and Covenants. The
representations made by Purchaser in this Agreement shall be
true in all material respects on and as of the Closing Date
with the same effect as though such representations had been
made or given on and as of the Closing Date. The Shareholders
shall have received at Closing a certificate signed by
Purchaser to the foregoing effect.
7.2 Necessary Consents. Any consents or approvals
required to consummate the transactions herein provided shall
have been obtained.
7.3 Certified Resolutions. Purchaser shall have
supplied the Shareholders with a certified copy of resolutions
duly adopted by the Board of Directors of Purchaser approving
the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby.
7.4 Proceedings and Instruments Satisfactory. All
documents incident to the transactions contemplated by this
Agreement shall be reasonably satisfactory in form and
substance to the Shareholders and their counsel.
7.5 No Litigation. No investigation, suit, action
or other proceeding shall be threatened or pending before any
court or governmental agency or other agency or authority
which in the Shareholders' opinion may have a material adverse
effect on the Company.<PAGE>
<PAGE>
7.6 Employment Agreements. Purchaser and each of
the Shareholders shall have entered into Employment Agreements
in the form of Exhibits B-1, B-2 and B-3 attached hereto.
7.7 Receipt of Funds. The payments due to the
Shareholders as provided in Section 1.3 above shall have been
tendered by Purchaser at Closing.
7.8 Letter of Credit. Purchaser shall have
provided the Shareholder B.V.'s with a standby letter of
credit from United States National Bank of Washington, to be
confirmed by ABN AMRO Bank N.V. by the issuance of an
irrevocable bank guarantee, securing Purchaser's obligations
to make the deferred stock purchase payments required to be
paid to the Shareholder B.V.'s under Section 1.4 hereof, in
the aggregate amount of the Deferred Payments. The letter of
credit will contain instructions as set forth on the attached
Exhibit C, allowing the Shareholder B.V.'s to draw upon the
confirming bank's assurance of payment upon 30 days written
notice, provided that if within such 30 day period Purchaser
initiates a legal proceeding in the Netherlands asserting that
a valid basis exists for an offset to the deferred payments,
the payment to be made by the Confirming Bank shall be reduced
by the amount of Purchaser's claim until such claim in the
legal proceedings has been finally resolved or settled
(geschikt).
7.9 Payment of Company Debt. Purchaser shall have
caused to be paid at Closing the debt owed by the Company to
the following private companies with limited liability in the
following amounts:
TOP Beheer BV Dfl 1,285,000
A Murre Investments BV Dfl 175,000
WP de Pundert
Investments BV Dfl 175,000
8. Indemnification.
---------------
8.1 Indemnification Liability of Shareholders. The
Shareholders shall jointly and severally indemnify Purchaser
and the Company and their respective directors, officers and
shareholders, successors and assigns for and hold each of them
harmless from any of the following (all hereinafter referred
to as "Damages"), subject to the period of limitation set
forth in Section 8.3 below:
(a) Any and all costs, expenses, damages or
deficiencies incurred or suffered by Purchaser, the Company or
Superior, net of any tax benefits received by the Company from
any such expense, resulting from any breach of the
Shareholders' representations or other misrepresentation by
the Shareholders,<PAGE>
<PAGE>
or nonfulfillment of any covenant or obligation on the part of
the Shareholders under this Agreement.
(b) All reasonable costs and expenses
(including reasonable attorney fees) incurred in connection
with any action, suit, proceeding, demand, assessment or
judgment incident to any matters indemnified against in this
Section 8.1 and in any appeal therefrom.
8.2 Claims Procedure. The indemnification provided
in Section 8.1 shall be subject to the condition that
Purchaser shall give prompt written notice to the Shareholders
of any claim for damages under these indemnification
provisions. Claims for indemnity to which all Shareholders
have acknowledged in writing to be valid claims for
indemnification shall constitute Agreed Claims. Purchaser
reserves the right to offset any Agreed Claim or any other
amount determined by a final order of any court or other
determining body to be due to Purchaser under these
indemnification provisions against any part of the deferred
portion of the purchase price to be paid to the Shareholders,
and to defer payment of any deferred portion of the purchase
price until any unresolved and outstanding claim for indemnity
is resolved. Any offset under these provisions shall be
allocated among the Shareholders in the same manner as
provided in Section 1.5 above. This remedy by Purchaser shall
not be exclusive. No waiver of Purchaser's right to pursue a
claim for indemnification hereunder shall be inferred by
reason of the failure of the parties to agree that the claim
constitutes an Agreed Claim.
8.3 Survival of Claims. Any claim for
indemnification concerning breaches of a representation
regarding tax or social security liabilities must be initiated
by Purchaser, if it all, within six years after the Closing
date. Any other claim for indemnification by Purchaser must be
initiated, if at all, within two years after Closing.
8.4 Limit of Liability. In no event may the
liability of any Shareholder or any Shareholder B.V. exceed
the total ammount of the Purchase Price, whether paid at
Closing or as Deferred Payments, received by the Shareholder
B.V. which is owned by the individual Shareholder.
9. Brokerage; Publicity; Other Agreements.
--------------------------------------
9.1 Brokerage. The Company and Shareholders
represent and warrant to Purchaser that they have not engaged
the services of any broker or finder with respect to this
Agreement or the transactions contemplated herein, and the
Shareholders jointly and severally agree to indemnify
Purchaser for and hold it harmless from any and all claims for
brokers' or finders' fees or compensation in connection with
the transactions herein provided<PAGE>
<PAGE>
for by any person, firm or corporation claiming such a right
because engaged by the Company or the Shareholders. Purchaser
represents and warrants to the Shareholders that it has not
engaged in the services of any broker or finder in connection
with this Agreement or the transactions contemplated herein
and agrees to indemnify the Shareholders for and hold them
harmless from any claims for brokers' or finders' fees or
compensation in connection with the transactions herein
provided for by any person, firm or corporation claiming such
a right because engaged by Purchaser.
9.2 Publicity. Neither party will release further
information or publicity to the media, the trade or any other
third party regarding this transaction prior to Closing
without first obtaining the consent of the other, which
consent will not be unreasonably withheld.
10. Noncompetition and Confidentiality.
----------------------------------
10.1 Noncompetition. Each Shareholder hereby agrees
and undertakes that for the period specified in the Employment
Agreements referred to in Sections 6.6 and 7.6 above he will
not, without the prior written consent of the Purchaser,
(a) in the Netherlands, Belgium, any other
markets in the European Union, Switzerland or any other
markets where any of Key, the Company, Superior, or any
subsidairy is then selling or licensing its products, engage
in activities as principal, consultant, sales representative,
agent, distributor, shareholder, partner or any other capacity
whatsoever, either directly or indirectly, concerning the
conduct of any business involving the production of or the
sales or trading in any products designed, produced, traded,
quoted, installed or serviced, or the provision of services
then provided, by Key, the Company, Superior or their
subsidiaries or as Key, the Company or Superior has
demonstrably determined to produce, trade, quote, install or
provide as from a period of 12 months prior to the date on
which termination of Shareholder's employment with Superior
becomes effective, unless such activities by the shareholder
do not compete with the activities by Key, the Company,
Superior or their subsidiaries in the same country. Provided
that for purposes of this Agreement the activities of
Shareholder shall be deemed to be in competition with Key and
its subsidiaries (other than Suplusco and Superior) only if
such activities compete with the products listed on the
attached Exhibit D.
(b) persuade or attempt to persuade any
employee or any sales representative or agent of Superior or
Purchaser to terminate his or her or their relationship with
Purchaser or Superior or take any action that may result in
the impairment of<PAGE>
<PAGE>
the relationship between such employee or sales representative
or agent with Purchaser or Superior;
(c) persuade or attempt to persuade any
customer, supplier of or other company or enterprise doing
business with Superior or Purchaser to terminate his
relationship with Superior or Purchaser or take any action
that may result in the impairment of such relationship; or
(d) use or allow any of its affiliates or
companies or enterprises forming part of the same group of
companies of which the Shareholder forms part to use the name
Suplusco and Superior (where such use could result in any
confusion in the market or could imply any connection of such
business with business of the Company or Superior) and in any
case a corporate name, trade name or brand name of/as used by
the Company or Superior, the Purchaser and any of Purchaser's
affiliated companies.
10.2 Confidentiality. Each Shareholder undertakes
not to at any time subsequent to this Agreement, divulge or
communicate to any company, person or entity (other than the
Purchaser or Superior as the case may be or to any of their
officers or employees who need to acquire such knowledge in
the performance of their duties or as directed or approved by
the Purchaser in writing) any confidential information or
information of any apparently confidential nature whatsoever
concerning the business, affairs, accounts, dealings,
transactions, customers, suppliers or business relations of
Purchaser or Superior.
10.3 Penalty. In the event that any Shareholder
breaches any of his obligations contained in this Section 10,
he shall immediately without any actions of formality being
required to be taken or fulfilled forfeit for the benefit of
Superior (or at its discretion for the benefit of Purchaser)
an immediately payable penalty of Dfl 50,000 for each
infringement and of Dfl 5,000 for each day such infringement
will continue, without any damages or losses being required to
be proven and without prejudice to the right of the Purchaser
to claim additional damages if there are grounds for so doing.
11. Additional Provisions.
---------------------
11.1 Waiver of Rescission. All parties to this
Agreement expressly waive their right under Sections 6:265 et
seq of the Netherlands Civil Code to Claim Rescission
(ontbinding") of this Agreement.
11.2 Expenses. The Purchaser and the Shareholders
shall each pay their respective expenses in connection with
the<PAGE>
<PAGE>
transactions contemplated by this Agreement, including the
fees and expenses of their respective counsel and advisors.
11.3 Entire Agreement. This Agreement together with
the related Exhibits and Schedules sets forth the entire
agreement and understanding among the parties as to the
subject matter hereof, and supersedes and merges all prior
discussions, agreements and understandings, including the
letter of intent, of every kind and nature among them. No
party shall be bound by any condition, definition, warranty,
or representation, other than expressly set forth or provided
for in this Agreement, or as may be, on or subsequent to the
date hereof, set forth in writing and signed by the party to
be bound thereby. This Agreement may not be changed or
modified, except by agreement in writing, signed by all of the
parties hereto.
11.4 Parties in Interest. All the terms and pro-
visions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the successors in
interest of the respective parties hereto. Nothing contained
herein, express or implied, is intended nor shall be construed
to confer or give any person, firm or corporation other than
the parties hereto, any rights or remedies under or by reason
of the Agreement.
11.5 Substitution of Subsidiary. Purchaser shall
have the right, at any time prior to or at the Closing Date,
to designate in its place and stead any subsidiary
corporation, which subsidiary shall then succeed to all rights
and be liable to perform all the obligations of Purchaser
under this Agreement, all without releasing any liability of
Purchaser hereunder.
11.6 Notices. All notices or other communications
which are required or permitted hereunder shall be sufficient
if delivered personally or by registered or certified mail,
postage prepaid, as follows:
If to Purchaser: Key Technology, Inc.
Attn: Thomas C. Madsen
President
150 Avery Street
Walla Walla, WA 99362
Facsimile: 509/522-3378
with copies to: Ronald L. Greenman
Tonkon, Torp, Galen,
Marmaduke & Booth
1600 Pioneer Tower
888 SW Fifth Avenue
Portland, OR 97204-2099
Facsimile: 503/274-8779<PAGE>
<PAGE>
and W.H. Kesler
De Jonge & Peters
Advocaten
M.H. Tromplaan 10/12
Postbus 2121, 7500 CC
Enschede, Holland
Facsimile: +31/53/433 03 81
If to the
Shareholders: R.C. van Beem
W.J. Arentsen
W. de Haan
c/o Beyerdstraat 14
NL-4112 NE
Beusichem, Holland
Facsimile: +31/345/501 594
with a copy to: W.P. de Pundert
Top Beheer B.V.
Korenhalmdijk 17, 4431 NE
P.O. Box 1, 4430 AA
's-Gravenpolder, Holland
Facsimile: +31/113/312 705
and J.P. Franx
Nauta Dutilh
Prinses Irenestraat 59, 1077 WV
P.O. Box 7113, 1007 JC
Amsterdam, Holland
Facsimile: +31/20/661 28 27
(as from August 1, 1996)
Any party may, by written notice to the other, change its
address
for purposes of this Agreement.
11.7 Waiver. Waiver by any party of the strict
performance of any of the provisions of this Agreement shall
not be construed as a waiver of or prejudice that party's
right to subsequently require strict performance of, the same
or any other provision of this Agreement.
11.8 Section Headings. The headings of the sections
of this Agreement are for the convenience of the parties only
and shall not be construed as affecting the terms of this
Agreement or counterparts be used in the interpretation of the
terms of this Agreement.
11.9 Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed
to be<PAGE>
<PAGE>
an original and all of which together shall be deemed to be
one and the same instrument.
11.10 Governing Law. This Agreement shall be
governed by the law of the Netherlands, and all disputes
hereunder will be resolved by the appropriate courts located
in the Netherlands.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the day and year first
above written.
KEY TECHNOLOGY, INC. SUPLUSCO HOLDING B.V.
By /s/ Thomas C. Madsen By /s/ R.C. van Beem
-------------------- -------------------
Thomas C. Madsen R.C. van Beem
President Director
SHAREHOLDER B.V.s: SHAREHOLDERS:
ROBS-ROIZ B.V. /s/ R.C. van Beem
----------------------
R.C. van Beem
By /s/ R.C. van Beem
----------------------- /s/ W.J. Arentsen
----------------------
W.J. Arentsen
ARENTSEN B.V. /s/ W. de Haan
----------------------
W. de Haan
By /s/ W.J. Arentsen
-----------------------
HAGROCOM B.V.
By /s/ W. de Haan
------------------------<PAGE>
<PAGE>
LIST OF OMITTED SCHEDULES AND EXHIBITS
--------------------------------------
Schedule 2 Notarial deed of transfer
Schedules 3.2 Charter Documents and Articles of
Association
Schedule 3.3 Shareholders' register of the Company
Schedule 3.7 Company's audited financial statements
(balance sheet and profit and loss
account)
for the year ended June 30, 1995
Schedule 3.8 List of Existing Insurance Policies
(including any material claims under any
product warranties)
Schedule 3.9 Description of Material Changes
Schedule 3.14 List of all Leases and Contracts,
excluding
purchase orders and employment contracts
Schedule 3.18 List of customers who purchased 90 percent
or
more of the Company's sales of products
(including sales by KSK) in 1994 and 1995
Schedule 3.19 List of all Intellectual Property Rights
Schedule 3.20 List of the Company's or Superior's
Employee
Plans
Schedule 3.21 List of each of the Company's and
Superior's
Employees' names and their rates of
compensation as of May 31, 1996
Schedule 3.22 List of Bank Accounts, Guaranties and
Powers
of Attorney
Schedule 3.24 All agreements and documents relating to
the
KSK Transaction
Exhibit A Audited Financial Statements (prepared by
Deloitte Touche Tohmatsu International) of
the Company's consolidated balance sheet
as
of May 31, 1996
Exhibits B-1, Employment Agreements
B-2 and B-3
Exhibit C Letter of credit instructions
Exhibit D List of competitive products
