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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 30, 1999
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Brooks Automation, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation)
000-25434 04-3040660
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(Commission File Number) (I.R.S. Employer Identification No.)
15 Elizabeth Drive, Chelmsford, MA 01824
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(978) 262-2400
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(Registrant's Telephone Number, Including Area Code)
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Item 2. ACQUISITION
On September 30, 1999, the Registrant acquired substantially all of the assets
and assumed certain of the liabilities of the Infab Division of Jenoptik AG
("Jenoptik") in exchange for 914,286 shares of the Registrant's common stock,
subject to adjustment pending the completion of a post closing review of the
purchased assets. The Infab Division is a worldwide supplier of advanced factory
automation systems headquartered in Germany. The assets purchased from the Infab
Division included fixed assets, usable inventory, collectible receivables,
patents and intellectual property. The Registrant intends to continue to use
these assets in connection with its conduct of the business of the former Infab
Division.
As part of this transaction, the Registrant appointed Jurgen Giessmann, an
executive officer of Jenoptik, to the Registrant's Board of Directors pursuant
to a Stockholder Agreement dated September 30, 1999 among the Registrant,
Jenoptik, a subsidiary of Jenoptik and Robert J. Therrien, the president and
chief executive officer of the Registrant and a member of the Registrant's Board
of Directors. Under the Stockholder Agreement, until Jenoptik no longer holds
all its shares purchased from the Registrant in this transaction, or until
September 30, 2004, whichever occurs first, the Registrant has agreed to
nominate a reasonably acceptable candidate of Jenoptik to the Registrant's Board
of Directors in each election of the Registrant's directors, Robert J. Therrien
agreed to vote all his shares in favor of such nominees for election to the
Board of Directors. Jenoptik, in turn, agreed to vote in favor of the other
candidates to the Registrant's Board of Directors and for other matters, in the
same proportion as the votes cast by the other holders of the Registrant's
common stock. Jenoptik also agreed not to buy or sell shares of the Registrant's
common stock except in specified circumstances. Jenoptik further agreed to share
information with the Registrant regarding upcoming projects and to give the
Registrant the right of first refusal as a supplier. The terms of the asset
purchase are more fully described in the Stockholder Agreement and the Master
Purchase Agreement dated as of September 30, 1999, among the Registrant,
Jenoptik and certain of their respective direct or indirect subsidiaries.
Except as otherwise summarized in this Report, there is no material relationship
between Jenoptik and the Registrant or any affiliate, director or officer of the
Registrant or any associate of any such director or officer. The terms of this
transaction and the consideration received by Jenoptik were as a result of
arms-length negotiations between representatives of Jenoptik and the Registrant.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED
The required financial statements relating to Infab Group are
not included in this Report. The Registrant plans to file the
required financial statements by December 15, 1999.
(b) UNAUDITED PRO FORMA FINANCIAL INFORMATION
The required pro forma financial information is not included
in this Report. The Registrant plans to file the required pro
forma financial information by December 15, 1999.
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(c) EXHIBITS
ITEM NO. DESCRIPTION
2.1 Master Purchase Agreement by and among Brooks
Automation, Inc., FASTech Integration, Inc.,
Brooks Automation GmbH, Jenoptik AG, Meissner &
Wurst Zander Holding GmbH, Jenoptik Infab GmbH,
Jenoptik Infab KK, Jenoptik Infab PLC, Jenoptik
Infab, Ltd., Meissner & Wurst US, Inc. and
Jenoptik Infab, Inc. dated as of September 9,
1999, as amended on September 30, 1999.
2.2 Stockholder Agreement dated September 30, 1999
among Brooks Automation, Inc., Jenoptik AG,
Meissner & Wurst Zander Holding GmbH and Robert J.
Therrien.
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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.
By: /s/ Ellen B. Richstone
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Ellen B. Richstone
Senior Vice President of Finance and
Administration and Chief Financial
Officer
Dated: October 15, 1999
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EXHIBIT INDEX
2.1 Master Purchase Agreement by and among Brooks
Automation, Inc., FASTech Integration, Inc.,
Brooks Automation GmbH, Jenoptik AG, Meissner &
Wurst Zander Holding GmbH, Jenoptik Infab GmbH,
Jenoptik Infab KK, Jenoptik Infab PLC, Jenoptik
Infab, Ltd., Meissner & Wurst US, Inc. and
Jenoptik Infab, Inc. dated as of September 9,
1999, as amended on September 30, 1999.
2.2 Stockholder Agreement dated September 30, 1999
among Brooks Automation, Inc., Jenoptik AG,
Meissner & Wurst Zander Holding GmbH and Robert J.
Therrien.
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EXHIBIT 2.1
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MASTER PURCHASE AGREEMENT
by and among
BROOKS AUTOMATION, INC.,
FASTech INTEGRATION, INC.,
BROOKS AUTOMATION GmbH
JENOPTIK AG
MEISSNER + WURST ZANDER HOLDING GmbH,
JENOPTIK INFAB GmbH,
JENOPTIK INFAB KK,
JENOPTIK INFAB PLC,
JENOPTIK INFAB, LTD.
MEISSNER + WURST US, INC.
and
JENOPTIK INFAB, INC.
September 9, 1999
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MASTER PURCHASE AGREEMENT
TABLE OF CONTENTS
Page
MASTER PURCHASE AGREEMENT......................................................1
ARTICLE I. DEFINITIONS.........................................................1
1.1 Definitions...........................................................1
ARTICLE II. PURCHASE AND SALE OF PURCHASED ASSETS AND INFAB SHARES.............7
2.1 Purchased Assets......................................................7
2.2 Excluded Assets.......................................................9
2.3 Assumption of Liabilities.............................................9
2.4 Retained Liabilities.................................................10
2.5 Taxes; Documents of Assignment.......................................11
2.6 Purchase of Infab Shares.............................................11
2.7 Further Assurances...................................................12
2.8 Customer Contracts...................................................13
ARTICLE III. AGGREGATE CONSIDERATION..........................................13
3.1 Aggregate Consideration and Payment..................................13
3.2 Determination of Closing Net Book Value; Adjustment of the
Aggregate Consideration.............................................13
3.3 Allocation of Aggregate Consideration................................15
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF JENOPTIK, M+W AND M+W (US)......15
4.1 Organization and Qualification.......................................15
4.2 Authority; No Violation..............................................16
4.3 Investment Intent....................................................17
4.4 Restricted Securities................................................17
4.5 U.S. Person..........................................................17
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF THE COMPANIES....................18
5.1 Organization and Qualification of the Companies......................18
5.2 Authority; No Violation..............................................19
5.3 Capitalization.......................................................19
5.4 Subsidiaries; Other Investments......................................20
5.5 Financial Statements.................................................20
5.6 Absence of Undisclosed Liabilities...................................21
5.7 Conduct of Business; Absence of Certain Changes......................21
5.8 Payment of Taxes.....................................................23
5.9 Title to Properties; Liens; Condition of Properties..................24
5.10 Collectibility of Receivables.....................................25
5.11 Inventories.......................................................25
5.12 Intellectual Property Rights......................................26
5.13 Contracts and Commitments.........................................28
5.14 Employees.........................................................30
5.15 Labor and Employee Relations......................................30
5.16 Employee Benefits.................................................32
5.17 Environmental Matters.............................................32
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5.18 Government Authorizations.........................................34
5.19 Warranty or Other Claims..........................................34
5.20 Litigation........................................................35
5.21 Borrowings and Guarantees.........................................35
5.22 Financial Service Relations and Powers of Attorney................35
5.23 Insurance.........................................................35
5.24 Corporate Books, Records and Accounts.............................36
5.25 Finder's Fee......................................................37
5.26 Transactions with Interested Persons..............................37
5.27 Absence of Sensitive Payments.....................................37
5.28 Year 2000.........................................................38
5.29 Copies of Documents...............................................38
5.30 Disclosure of Material Information................................38
5.31 Regulatory Correspondence.........................................38
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF BUYER...........................38
6.1 Organization of Buyer................................................39
6.2 Authorization of Transaction.........................................39
6.3 No Conflict of Transaction With Obligations and Laws.................39
6.4 Reports and Financial Statements.....................................39
6.5 Absence of Certain Changes...........................................40
6.6 Capitalization.......................................................40
6.7 Labor and Employee Relations.........................................40
6.8 Government Authorizations............................................41
6.9 Litigation...........................................................41
6.10 Finder's Fee......................................................41
6.11 Absence of Sensitive Payments.....................................41
6.12 Corporate Books, Records and Accounts.............................42
6.13 Disclosure of Material Information................................42
ARTICLE VII. COVENANTS OF JENOPTIK AND THE INFAB COMPANIES....................42
7.1 Conduct of Business..................................................42
7.2 Access to Information................................................45
7.3 Governmental Permits and Approvals; Consents.........................45
7.4 Assignment of Contracts..............................................45
7.5 Maintenance of Government Authorizations.............................45
7.6 Collection of Receivables............................................46
7.7 Risk of Loss.........................................................46
7.8 Employee/Employee Compensation.......................................46
7.9 Employee Termination Costs...........................................46
7.10 Breach of Representations and Warranties..........................47
7.11 Consummation of Agreement.........................................47
7.12 Exclusivity.......................................................47
7.13 Cimple............................................................47
7.14 Deferred Revenues.................................................47
7.15 Change of Name....................................................48
7.16 Ebner Stolz & Partner.............................................48
ARTICLE VIII. COVENANTS OF BUYER..............................................48
8.1 Reasonable Best Efforts..............................................48
8.2 Notices and Consents.................................................48
8.3 Breach of Representations and Warranties.............................48
8.4 Listing of Cash Shares and Purchase Shares...........................48
ARTICLE IX. CONDITIONS TO OBLIGATIONS OF BUYER................................49
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9.1 Due Diligence Review.................................................49
9.2 Representations; Warrantees; Covenants...............................49
9.3 Resignations of Officers and Directors...............................49
9.4 Lien Terminations....................................................49
9.5 Delivery of Financial Information....................................49
9.6 Purchase Agreements..................................................50
9.7 Certain Ancillary Agreements.........................................50
9.8 Employee Noncompetition Agreements...................................50
9.9 Real Property Leases.................................................50
9.10 Governmental Consents and Approvals; Authorization from Others;
Termination or Expiration of Waiting Period......................51
9.11 Absence of Certain Litigation.....................................51
9.12 No Bankruptcy.....................................................51
9.13 Resolution of Minority Ownership..................................52
9.14 Opinion of Counsel for Jenoptik, and M+W..........................52
9.15 Opinion of Sellers' Counsel.......................................52
9.16 Opinion of Counsel for Each of Infab (Scotland) and Infab
(Ireland)........................................................53
9.17 Fairness Opinion..................................................53
9.18 Payment of Indebtedness...........................................53
ARTICLE X. CONDITIONS TO OBLIGATIONS OF JENOPTIK AND THE INFAB COMPANIES......53
10.1 Representations; Warrantees; Covenants............................54
10.2 Governmental Consents and Approvals; Termination or Expiration
of HSR Waiting Period............................................54
10.3 Absence of Certain Litigation.....................................54
10.4 No Bankruptcy.....................................................54
10.5 Opinion of Buyer's Counsel........................................55
ARTICLE XI. INDEMNIFICATION...................................................55
11.1 Indemnification by Jenoptik.......................................55
11.2 Indemnification by Buyer..........................................58
11.3 Defense of Third Party Actions....................................59
11.4 Miscellaneous.....................................................59
11.5 Payment of Indemnification........................................60
ARTICLE XII. TERMINATION OF AGREEMENT.........................................60
12.1 Termination.......................................................60
12.2 Termination by the Buyer..........................................60
12.3 Termination by Jenoptik...........................................61
12.4 Procedure for Termination.........................................61
12.5 Effect of Termination.............................................61
12.6 Right to Proceed..................................................62
ARTICLE XIII. MISCELLANEOUS...................................................62
13.1 Survival of Warranties............................................62
13.2 Fees and Expenses.................................................62
13.3 Notices...........................................................63
13.4 Publicity and Disclosures.........................................64
13.5 Confidentiality...................................................65
13.6 Time Period.......................................................65
13.7 Entire Agreement..................................................65
13.8 Severability......................................................65
13.9 Assignability.....................................................65
13.10 Amendment.........................................................65
13.11 Governing Law;....................................................66
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13.12 Remedies..........................................................66
13.13 Counterparts......................................................66
13.14 Effect of Table of Contents and Headings.........................66
13.15 Disposition of Cash Shares and Purchase Shares....................66
List of Schedules and Exhibits.............................................69
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MASTER PURCHASE AGREEMENT
This Master Purchase Agreement (the "Agreement") dated as of September 9,
1999, is entered into by and among the parties whose names appear on the
signature pages hereof and who are defined in Article I hereof.
This Agreement, including the Exhibits and Schedules hereto, sets forth
the terms and conditions upon which Buyer or one or more Subsidiaries of Buyer
will, in exchange for a total of 914,286 shares of Buyer Common Stock with a
stipulated value of $24.4 million (subject to adjustment), acquire:
(i) $16.4 million of fixed assets necessary for or used primarily in
connection with the Infab Business, usable inventory and collectible
receivables, but not goodwill;
(ii) $5 million of patents and intellectual property necessary for or
used primarily in connection with the Infab Business;
(iii) $3 million (plus the amount of certain prepayments of license
fees and vacation accruals) in cash;
(iv) all shares of Infab (Scotland); and
(v) all shares of Infab (Ireland).
In consideration of the mutual representations, warranties and covenants
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I. DEFINITIONS
1.1. DEFINITIONS. For the purposes of this Agreement and,
unless otherwise set forth therein, for the purposes of all Schedules and
Exhibits to this Agreement, all capitalized words or expressions used in this
Agreement (including the Schedules and Exhibits annexed thereto) shall have the
meanings specified in this Article I (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"ACQUISITION TRANSACTION" means any merger, consolidation or other
business combination involving any of the Infab Companies, acquisition of any
portion of the Purchased Assets, except in the ordinary course of business and
consistent with past practices, acquisition of capital stock of any of the
Companies, or inquiries or proposals concerning or which could reasonably be
expected to lead to, any of the foregoing.
"AGGREGATE CONSIDERATION" is defined in Section 3.1 hereof.
"ANCILLARY DOCUMENTS " means the Stockholder Agreement, Transitional
Services Agreement, Jenoptik Non-competition Agreement, and all of the other
documents or agreements
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entered into or executed in conjunction with the execution, delivery and
performance of the Purchase Agreements.
"ASSUMED INFAB SHARE LIABILITIES" means (1) the statutory liability
incurred by taking over the employment of the twelve employees of Infab
(Scotland) and (2) the customer contracts listed on Schedule 2.1(c) unless the
license agreement referenced in Section 9.13 hereof is executed and delivered.
In that event "Assumed Infab Share Liabilities" shall mean no liabilities
whatsoever.
"ASSUMED LIABILITIES" means the liabilities described in Section 2.3
hereof.
"BASE BALANCE SHEET" means the balance sheet described in Section 5.5
hereof.
"BASE NET BOOK VALUE" is defined in Section 3.2 hereof.
"BUYER" means Brooks Automation, Inc., a Delaware corporation.
"BUYER COMMON STOCK" means shares of Buyer's common stock, par value
$.01 per share.
"BUYER'S EMPLOYEE TERMINATION COSTS" means all Employee Termination
Costs up to but not exceeding $2,000,000.
"BUYER ENTITIES" means Buyer, FASTech Integration, Inc. and Brooks
Automation GmbH.
"BUYER'S INDEMNIFIED PERSONS" means the Buyer, its parent, subsidiary
and affiliated corporations, their respective directors, officers, employees,
stockholders and agents, Infab (Scotland) and Infab (Ireland) after the Closing,
and any person serving as a director, officer, employee or agent of Infab
(Scotland) and Infab (Ireland) at Buyer's request after the Closing.
"BUYER PURCHASE RIGHT" means a preferred stock purchase right under the
Rights Agreement, as amended, between Buyer and the Rights Agent named therein
in July 1997. References herein to Buyer Common Stock and to Purchase Shares
issuable in connection herewith shall be deemed to include the associated Buyer
Purchase Rights.
"CLOSING" means the closing of the transactions contemplated herein,
which shall be held at the offices of Brown, Rudnick, Freed & Gesmer at 10:00
a.m., on September 30, 1999 or at such other place, date or time as may be fixed
by mutual agreement of the parties provided, however, that in no event shall the
date of Closing (the "Closing Date") be extended beyond October 31, 1999.
"CLOSING BALANCE SHEET" is defined in Section 3.2 hereof.
"CLOSING NET BOOK VALUE" is defined in Section 3.2 hereof.
"CLOSING STATEMENT" is defined in Section 3.2 hereof.
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"COMPANY" means any of Infab (Germany), Infab (Ireland), Infab (Japan),
Infab (Scotland) and Infab (USA), and "COMPANIES" means all of them
collectively.
"CONSTITUENT DOCUMENTS" means the certificate of incorporation,
articles of organization, agreement of association, by-laws or equivalent
documents pursuant to which a corporation is organized under its governing law.
"COURT ORDER" means court order, judgment, administrative or judicial
order, writ, decree, stipulation, arbitration award or injunction.
"CUSTOMER CONTRACTS" mean the contracts described in Section 2.1(c)
hereof.
"EMPLOYEE BENEFIT PLAN" means a pension arrangement, profit sharing
plan, stock purchase, stock option, stock bonus, stock appreciation, severance,
health, welfare, life, disability or other benefit plan, fund, program,
arrangement or practice (including all Betriebsvereinbarungen [collective
bargaining agreements] and tarifvertage [tariff contracts] and further including
practices related to vacation pay, holiday time, moving expense, reimbursement
programs, sick leave and salary reduction agreements, change-in-control
agreements, severance agreements).
"EMPLOYEE TERMINATION COSTS" include (i) all severance payments paid to
Terminated Employees, (ii) all wages, employers' contributions and any other
benefits that are paid to or in respect of Terminated Employees for periods from
the date of Closing to the effective date of termination of the Terminated
Employees employment and (iii) any other amounts such as legal fees, court fees
and other expenses that are paid to or in respect of Terminated Employees after
the date of this Agreement.
"ENVIRONMENTAL LAWS" means Laws, Court Orders and Government
Authorizations, related to the environment, the management of pollution or
Hazardous Materials the protection of public health or worker safety, including
but not limited to (i) in the case of the United States, the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), the Resource
Conservation and Recovery Act ("RCRA"), the Clean Air Act, the Clean Water Act,
the Toxic Substances Control Act, the Emergency Planning and Community
Right-to-Know Act of 1986, the Hazardous Materials Transportation Act, and the
Federal Water Pollution Control Act, (ii) in the case of the Federal Republic of
Germany and (iii) all corresponding relevant laws and regulations in the
Republic of Ireland, Japan, the United Kingdom, and any other relevant
jurisdiction; or any successor laws and any similar laws, rules, or regulations.
"ENVIRONMENTAL SITE" means properties or facilities owned or leased by
any of the Companies, the former parent corporation of any of the Companies or,
to the best knowledge of the Companies and M+W, any predecessors-in-interest of
any of the Companies.
"EXCLUDED ASSETS" means the assets described in Section 2.2 hereof and
all of the rights, title and interest of Jenoptik and the Infab Companies in the
name "Jenoptik."
"FORMULA PRICE" means $26.6875 per share.
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"GOVERNMENTAL AUTHORITY" means any government authority, whether
foreign, federal, state, local or other political subdivision or agency of any
of the foregoing.
"GOVERNMENT AUTHORIZATIONS" means any license, permit, order, franchise
agreement, concession, grant, authorization, consent or approval from a
Government Authority.
"HAZARDOUS MATERIALS" means oil, petroleum products, chemicals, waste
oil, hazardous waste, hazardous substances or toxic substances.
"HOLDBACK" is defined in Section 3.1 hereof.
"INDEMNIFIED PERSON" means any person entitled to be indemnified under
Article 11.
"INDEMNIFYING PERSON" means any person obligated to indemnify another
person under Article 11.
"INDEPENDENT CPA" means the German national office of Deloitte & Touche
LLP.
"INFAB BUSINESS" means the business conducted by the Companies as of
the date hereof, or as of the date of Closing, as the context requires,
including all of the operations and the properties and assets of the Companies
of every kind and description, tangible and intangible, real, personal or mixed,
and wherever located, and all goodwill, rights and licenses, including all
rights to existing manufacturing and distribution arrangements. The Infab
Business includes the business conducted by Jenoptik and the Infab Companies of
providing automation and minienvironment solutions into the semiconductor and
related industries (including bare wafer manufacturing, flat panel display and
magnetic media). Automation and minienvironment solutions include products and
services related to SMIF systems and SMIF pods, FOUP systems and FOUP carriers,
Tool Buffer systems, wafer handling systems, Tool Stocker systems, Wafer
Sorters, Bright Light inspection systems, Auto-ID and tracking systems, MES
related software as described on Schedule I and minienvironments in order to
enable SMIF, FOUP or automated wafer handling systems.
"INFAB COMPANIES" means M+W, M+W (US) and the Companies.
"INFAB (GERMANY)" means Jenoptik Infab GmbH Integrated Fabrication
Systems, a German corporation, a wholly-owned Subsidiary of M+W.
"INFAB (IRELAND)" means Jenoptik Infab plc, an Irish corporation, a
majority-owned Subsidiary of Infab (Germany) .
"INFAB (JAPAN)" means Jenoptik Infab KK, a Japanese corporation, a
wholly-owned Subsidiary of Infab (Germany) .
"INFAB (SCOTLAND)" means Jenoptik Infab Ltd., an English corporation
based in Scotland, a majority-owned Subsidiary of Infab (Germany).
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"INFAB SHARE LIABILITIES" means any liability or obligation of Infab
(Scotland) or Infab (Ireland), including, without limitation, (i) any employment
obligation (including any employment contract, contingent bonus, earned bonus of
accrued and unpaid compensation), (ii) Taxes, (iii) any contractual debt or
obligation, (iv) any liability in tort, including any responsibility or
liability for any fiduciary duty claim of breach of fiduciary duty or duty to
stockholders, in each case whether fixed or contingent, whether known or
unknown, relating to or arising out of the operation of Infab (Scotland) or
Infab (Ireland) prior to the Closing Date. If the license agreement referenced
in Section 9.13 hereof is executed and delivered, Infab Share Liabilities shall
also include (i) any and all liabilities to third parties which may arise in
connection with the licensing arrangement or Buyer's employment of Infab
(Ireland) or Infab (Scotland) employees, (ii) any and all Losses to Buyer
resulting from the invalidity, reduction, modification or other limitation of
the license agreement and (iii) any and all Losses to Buyer resulting from any
injunctions or similar court orders with respect to the license agreement.
"INFAB SHARES" means all of the issued and outstanding capital stock of
Infab (Scotland) and Infab (Ireland).
"INFAB (USA)" means Jenoptik Infab, Inc., a Delaware corporation, a
wholly-owned Subsidiary of M+W (US).
"JENOPTIK" means Jenoptik AG, a German corporation.
"JENOPTIK EMPLOYEE TERMINATION COSTS" means all Employee Termination
Costs in excess of $2,000,000.
"JENOPTIK'S INDEMNIFIED PERSONS" means each of Jenoptik, its
Subsidiaries and affiliated corporations and their respective directors,
officers, employees, stockholders and agents.
"LAWS" means statutes, laws, ordinances rules and regulations issued by
any Government Authority.
"LIABILITIES" means all the actual or contingent liabilities of each of
the Sellers existing at the time of the Closing or any such liabilities incurred
as a direct result of the Closing, including but not limited to Jenoptik
Employee Termination Costs.
"LIENS" means, with respect to any asset, any mortgage, deed of trust,
pledge, hypothecation, assignment, security interest, lien, charge, restriction,
adverse claim by a third party, title defect or encumbrance of any kind
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any assignment or other conveyance of any right to receive
income and any assignment of receivables with recourse against assignor), any
filing of any financing statement as debtor under the Uniform Commercial Code or
comparable law of any jurisdiction and any agreement to give or make any of the
foregoing.
"LOSSES" means all losses, damages (including, without limitation,
punitive and consequential damages and lost profits, lost revenues and
opportunity costs), fines, penalties, payments, obligations and all liabilities
and all expenses related thereto incurred by an
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Indemnified Person. Losses shall include any reasonable legal fees and costs
incurred by any of the Indemnified Persons subsequent to the Closing in defense
of or in connection with any alleged or asserted liability, payment or
obligation, whether or not any liability or payment, obligation or judgment is
ultimately imposed against the Indemnified Persons and whether or not the
Indemnified Persons are made or become parties to any such action.
"M+W" means M+W Zander Holding GmbH, a German corporation, a majority
- -owned Subsidiary of Jenoptik.
"M+W (US)" means Meissner + Wurst US, Inc., a Delaware corporation
which is a wholly-owned subsidiary of M+W.
"PERSON" means any individual, firm, partnership, association, trust,
corporation, limited liability company, governmental body or other entity.
"PURCHASE AGREEMENTS" means this Master Purchase Agreement and each of
the purchase agreements related to the purchase of the assets or stock of
individual Companies.
"PURCHASE SHARES" means that number of shares of Buyer Common Stock to
be delivered as payment for the Purchased Assets and the Infab Shares in
accordance with Sections 2.1 and 2.6 hereof.
"PURCHASED ASSETS" means the assets described in Section 2.1 hereof and
all of the rights, title and interest of Jenoptik and the Infab Companies in the
name "Infab."
"RECEIVABLES" means the assets described in Section 5.10 hereof.
"RETAINED LIABILITIES" means the liabilities described in Section 2.4
hereof.
"SELLERS" means Infab (Germany), Infab (Japan) and Infab (USA).
"STOCKHOLDER AGREEMENT" means the Stockholder Agreement substantially
in the form of EXHIBIT D hereto among Jenoptik, M+W, Buyer and Robert J.
Therrien relating to the terms upon which the Purchase Shares shall be held and
transferred and other matters.
"SUBSIDIARY" means with respect to any Person (a) any corporation,
association or other entity of which at least a majority in interest of the
outstanding capital stock or other equity securities having by the terms thereof
voting power under ordinary circumstances to elect a majority of the directors,
managers or trustees thereof, irrespective of whether or not at the time capital
stock or other equity securities of any other class or classes of such
corporation, association or other entity shall have or might have voting power
by reason of the happening of any contingency, is at the time, directly or
indirectly, owned or controlled by such Person, or (b) any entity (other than a
corporation) in which such Person, one or more subsidiaries of such Person, or
such Person and one or more subsidiaries of such Person, directly or indirectly
at the date of determination thereof, has at least majority ownership interest.
For purposes of this
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Agreement, a Subsidiary of the Companies shall include the direct and indirect
subsidiaries of the Companies.
"TAXES" means income, profit, franchise, sales, use, real property,
personal property, ad valorem, excise, value added, employment, social security
and wage withholding taxes, severance, stamp, occupation, and windfall taxes, of
every kind, character or description imposed by any Governmental Authority or
quasi-governmental authority in Germany, Japan, United Kingdom, Ireland or the
United States or any other applicable jurisdiction, and any interest or fines,
and any and all penalties or additions relating to such taxes, charges, fees,
levies or assessments.
"TERMINATED EMPLOYEES" means the employees described in Section 7.9 of
this Agreement.
"THIRD PARTY ACTION" means any written assertion of a claim, or the
commencement of any action, suit, or proceeding, by a third party as to which
any Person believes it may be an Indemnified Person hereunder.
"TRANSITIONAL SERVICES AGREEMENT" means the agreement between Buyer and
Jenoptik relating to the provision of certain administrative and support
services substantially in the form of EXHIBIT E hereto.
"US GAAP" means generally accepted accounting principles in the United
States of America, applied on a basis consistent with past practices.
ARTICLE II. PURCHASE AND SALE OF PURCHASED ASSETS AND INFAB SHARES
2.1. PURCHASED ASSETS. Subject to the provisions of this
Agreement and except as expressly excluded in Section 2.2 hereof, the Sellers
agree to sell and the Buyer agrees to purchase, at the Closing, Sellers' right,
title and interest in and to all of the assets necessary for or used primarily
in connection with the Infab Business (the "Purchased Assets"). The Purchased
Assets include the following assets and business of Sellers, in each case to the
extent necessary for or primarily used in the Infab Business:
(a) all of the inventory shown on the Base Balance
Sheet, with only such additions and deletions with respect to such inventory as
have occurred since the date of the Base Balance Sheet;
(b) all of the Receivables, machinery and equipment
and other assets shown on the Base Balance Sheet plus any assets listed on
SCHEDULE 2.1(b) and any assets owned by the Sellers which previously have been
written off, with only such changes with respect to such Receivables as have
occurred since the date of the Base Balance Sheet and such changes to
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such machinery, equipment and other assets as have occurred in the ordinary
course of the Infab Business consistent with past practice since the date of the
Base Balance Sheet;
(c) all rights and interest of Infab (USA) in and to
the lease agreement (the "Colorado Lease") between Infab(US) and Clearfield
Investments, LLC dated February 24, 1999 attached to SCHEDULE 2.1(c) and all
rights and interests of the Sellers in and to executory contracts, agreements
and personal property leases other than in respect of any Retained Liability,
including without limitation those listed on SCHEDULE 2.1(c) (the "Customer
Contracts");
(d) all rights and interests of the Sellers in and to
customer purchase orders;
(e) all of the Sellers' books, records and accounts,
correspondence and any confidential information relevant to the current
operation of the Infab Business which has been reduced to writing (which may be
provided on computer disks, tape or comparable media), including, but not
limited to, engineering records, purchase and sales records since January 1,
1998, production flow chart records; credit records since January 1, 1998,
copies of accounting records, and customer and vendor lists and records since
January 1, 1998; personnel records, payroll records and employee benefit
summaries;
(f) all of the Sellers' customer lists, sales and
marketing information, copyrights, trade secrets, designs, formulae, processes,
procedures, know-how and inventions and the Sellers' right, title and interest
in all foreign and domestic trademarks and tradenames, including without
limitation the trademarks and tradenames listed on SCHEDULE 2.1(f) hereto;
(g) all of Sellers' rights, title and interest in and
to the patent applications and patents, and any rights under any licenses of
intellectual property rights or joint venture agreements including, without
limitation, those listed in SCHEDULE 5.12, including any patents issuing
therefrom, and any reissues, reexaminations, divisions, continuations in whole
or in part, extensions and foreign counterparts thereof;
(h) all of Sellers' right, title and interest in and
to technical documentation, including, but not limited to, all materials which
reproduce, patterns, plans, designs, research data, drawings, models,
blueprints, specifications, flow sheets, equipment and parts lists and
descriptions and related instructions, manuals, data, records and procedures;
(i) all of Sellers' right, title and interest in, to
and under third-party manufacturers' warranties, other than in respect to any
Retained Liabilities;
(j) any and all of the Sellers' Government
Authorizations which are necessary for or primarily relate to the Purchased
Assets or their use in the Infab Business, to the extent that the same are
transferable; and
(k) cash not less than the sum of (i) $3,000,000 plus
(ii) any license or royalty fee payments received under licenses of patents or
technology to Empac, Inc. or Tokyo
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Electronics Corporation entered into between the date hereof and the Closing
Date; plus (iii) $23,000 in cash for vacation accruals.
2.2. EXCLUDED ASSETS. Sellers are not selling, transferring or
assigning, and Buyer is not purchasing any assets of Sellers which are neither
necessary for nor primarily related to the Infab Business (sometimes referred to
as the "Excluded Assets"). The Excluded Assets shall include, but shall not be
limited to:
(a) all raw materials, work in progress and finished
goods inventory not necessary for or primarily related to the Infab Business;
(b) all inventory, Receivables and machinery and
equipment not necessary for or primarily related to the Infab Business,
including, without limitation, all inventory, Receivables and machinery and
equipment listed on SCHEDULE 2.2 hereof;
(c) the Sellers' corporate records, journals,
ledgers, original accounting and bookkeeping documents and books of original
entry and such other records which may be maintained by the Sellers which are
not necessary for or primarily related to the Infab Business;
(d) all of the Sellers' insurance policies and the
Sellers' rights under insurance policies, including, without limitation, all
property and casualty policies, general liability policies, product liability
policies and umbrella policies and also including all rights to insurance
proceeds and refunds payable thereunder;
(e) any and all income, sales, use, corporation
excise and franchise tax refunds which the Sellers may be entitled to receive
from Governmental Authorities which relate to their ownership of the Purchased
Assets prior to the Closing or their operation of the Infab Business prior to
the Closing and any right of Sellers to claim refunds for any taxes of any type
in respect of any period prior to the Closing;
(f) any and all of Sellers' ownership interest in any
corporation or other business organization, other than the Infab Shares.
(g) pension, profit sharing and savings plans and
trusts and any assets thereof; and
(h) all leases for Real Property other than the
Colorado Lease.
2.3. ASSUMPTION OF LIABILITIES. Upon the sale and purchase of
the Purchased Assets, the Buyer shall assume, pay, perform or discharge when due
those liabilities and obligations of the Sellers set forth below to the extent
necessary for or primarily related to the Infab Business or the Purchased Assets
existing as of the Closing or subsequent thereto (the "Assumed Liabilities").
The Assumed Liabilities shall consist only of the following:
(a) all liabilities and obligations of the Sellers to
customers for goods shipped to customers after the Closing Date which are not
reasonably identifiable as goods
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having been placed in finished goods inventory prior to the Closing Date,
including, but not limited to, liabilities and obligations for product warranty
and product liability claims; and
(b) all liabilities and obligations of the Sellers
arising from and after the Closing Date under the Customer Contracts but only to
the extent (i) accruing and relating solely to the period after the Closing and
(ii) the corresponding benefits therefrom are validly assigned to Buyer
hereunder.
2.4. RETAINED LIABILITIES. Notwithstanding anything to the
contrary set forth above, the Buyer shall not assume, pay or discharge, and
shall not be liable for any debt, obligation, responsibility or liability,
whether fixed or contingent, whether known or unknown, of the Sellers (the
"Retained Liabilities"), except to the extent specifically described in Section
2.3 hereof as an Assumed Liability. Without limiting the generality of the
foregoing, the following are included among the Retained Liabilities which Buyer
does not assume or become responsible for:
(a) any liabilities, obligations, responsibilities or
commitments relating to or arising out of the operation of the Infab Business
prior to the Closing Date other than the Assumed Liabilities;
(b) any liabilities and obligations of Sellers to
customers or third parties in connection with the Infab Business with respect to
shortages and defects in goods delivered to customers or in transit to customers
prior to the Closing or placed in finished goods inventory prior to the Closing
and shipped to customers after the Closing (provided such goods shipped after
the Closing are identifiable), including but not limited to, liabilities and
obligations for product warranty and product liability claims;
(c) any Losses arising or relating to events
occurring prior to the Closing Date or in connection with the consummation of
the transactions contemplated hereby to the extent such Losses relate to claims
made by Asyst Technologies, Inc. or affiliates of Asyst Technologies, Inc.
including without limitation any Losses of any type or description arising out
of or related to Asyst Technologies, Inc. v. Empak, Inc., Emtrak, Inc.; Jenoptik
AG; Jenoptik INFAB, Inc.; and Meissner & Wurst GmbH, Civil Action No. 98-20451
JF (EAI) in the United States District Court Northern District of California,
San Jose Division, or any related actions, including but not limited to appeals,
remands, cross-claims, counterclaims, administrative actions or the like;
(d) Any Infab Share Liability other than the Assumed
Infab Share Liabilities ;
(e) Any liability under an Employee Benefit Plan; or
(f) Any liability relating to government grants,
subsidiaries or other assistance including without limitation any liability for
reimbursement to a government for any research and development grants, subsidies
or assistance previously paid by the government relating to or arising out of
the Infab Business.
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2.5. TAXES; DOCUMENTS OF ASSIGNMENT.
(a) The Sellers shall be solely responsible (jointly
and severally) for all Taxes required by any Governmental Authority in any
relevant jurisdiction which arise out of or result from the sale of the
Purchased Assets or the Infab Shares.
(b) At the Closing, each of the Sellers shall deliver
or cause to be delivered to Buyer good and sufficient instruments of transfer
transferring to Buyer or its designee title to all the Purchased Assets sold by
that Seller. Such instruments of transfer (i) shall be in the form and will
contain the warranties, covenants and other provisions (not inconsistent with
the provisions hereof) which are usual and customary for transferring the type
of property involved under the laws of the jurisdictions applicable to such
transfers, (ii) shall be in form and substance reasonably satisfactory to
counsel for Buyer, and (iii) shall effectively vest in Buyer good and marketable
title to all the Purchased Assets, free and clear of all Liabilities or Liens
not specifically assumed by Buyer or its designee hereunder.
(c) At the Closing each of the Sellers shall deliver
or cause to be delivered to Buyer or its designee all of that Seller's leases,
contracts, commitments and rights included among the Purchased Assets, with such
assignments thereof and consents to assignments as are necessary to assure Buyer
of the full benefit of the same. Each of the Sellers (other than Infab (Germany)
with respect to Tax Returns) shall also deliver to Buyer or its designee at the
Closing copies of all of that Seller's business records, Tax Returns, books and
other data relating to the Purchased Assets, and the business and operations
(except the Excluded Assets) of the Infab Business, and each of the Sellers
shall take all requisite steps to put Buyer in actual possession and operating
control of the Purchased Assets under its control. After the Closing Buyer shall
afford to each of the Sellers and its accountants and attorneys reasonable
access to the books and records of Seller delivered to Buyer under this Section
2.5 and shall permit Seller to make extracts and copies therefrom for the
purpose of preparing such tax returns of Seller as may be required after the
Closing and for other proper purposes approved by Buyer.
2.6. PURCHASE OF INFAB SHARES.
(a) Upon the terms and conditions contained in this
Agreement, Buyer hereby agrees to purchase and Infab (Germany) agrees to sell to
Buyer the Infab Shares.
(b) At the Closing, Infab (Germany) shall deliver or
cause to be delivered to Buyer or its designee, among other things:
(i) share certificates for the Infab Shares
owned by Infab (Germany);
(ii) share transfer forms and such other
documents as may be required duly executed by Infab (Germany) to effect a valid
transfer of the Infab Shares, free and clear of any and all Liens, encumbrances,
charges or claims;
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(iii) general releases by all officers and
directors of Infab (Ireland) and/or Infab (Scotland) of any claim which any of
them may have against Infab (Ireland) and/or Infab (Scotland), and general
releases by Infab (Germany) of any claim which it may have against them; and
(iv) waivers of preemptive rights duly
executed by the holders of all Infab Shares.
2.7. OTHER DOCUMENTS; FURTHER ASSURANCES.
(a) At the Closing, each of the Infab Companies shall
deliver or cause to be delivered to Buyer such other documents as may be
required by any Ancillary Agreement.
(b) Each of the Infab Companies from time to time
after the Closing at the request of Buyer and without further consideration
shall execute and deliver further instruments of transfer and assignment (in
addition to those delivered under Section 2.5(b) and (c)) and take such other
action as Buyer may reasonably require to more effectively transfer and assign
to, and vest in, Buyer each of the Purchased Assets. To the extent that the
assignment of any lease, contract, commitment or right shall require the consent
of other parties thereto, this Agreement shall not constitute an assignment
thereof; however, each of the Sellers shall use its reasonable best efforts
before and after the Closing to obtain any necessary consents or waivers to
assure Buyer of the benefits of such leases, contracts, commitments or rights.
If such consent is not obtained, Sellers agree to cooperate with Buyer in any
reasonable arrangement designed to provide for Buyer the benefits thereunder,
including, but not limited to, having (a) Buyer act as agent for Sellers and (b)
Sellers enforce for the benefit of Buyer any and all rights of Sellers against
the other party thereto arising out of the cancellation by such other party or
otherwise. Each of the Sellers shall cooperate with Buyer to permit Buyer to
enjoy each of the Sellers' rating and benefits under the workman's compensation
laws and unemployment compensation laws of applicable jurisdictions, to the
extent permitted by such laws. Nothing herein shall be deemed a waiver by Buyer
of its right to receive at the Closing an effective assignment of each of the
leases, contracts, commitments or rights of Sellers.
(c) Each of the Infab Companies from time to time
after the Closing at the request of Buyer and without further consideration
shall execute and deliver further instruments of transfer and assignment (in
addition to those delivered under Section 2.6(b)) and take such other action as
Buyer may reasonably require to more effectively transfer and assign to, and
vest in, Buyer the Infab Shares.
(d) Buyer from time to time after the Closing at the
request of M+W and without further consideration shall execute and deliver
further instruments of transfer and assignment and take such other action as M+W
may reasonably require to more effectively issue to, and vest in, M+W and/or the
Sellers the Purchase Shares.
2.8. CUSTOMER CONTRACTS. For Customer Contracts included in
the Assumed Liabilities, the parties acknowledge that:
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(a) as between the Buyer and the Sellers, the Sellers
shall be liable for all liabilities and obligations arising or relating to
events occurring prior to the Closing Date under such Customer Contracts and
that such liabilities and obligations shall be deemed Retained Liabilities for
purposes of this Agreement;
(b) as between the Buyer and the customer under such
Customer Contracts, the Buyer shall be liable for all liabilities and
obligations before or after the Closing Date under such Customer Contracts.
ARTICLE III. AGGREGATE CONSIDERATION
3.1. AGGREGATE CONSIDERATION AND PAYMENT.
(a) Subject to the adjustment in Section 3.2, the
aggregate consideration to be paid by the Buyer to M+W (the "Aggregate
Consideration") in consideration of the sale of the Infab Business, the
Purchased Assets and the Infab Shares shall be equal to:
(i) the aggregate amount of the Assumed
Liabilities as of the Closing; plus
(ii) that number of the shares of Buyer
Common Stock which represents an aggregate value equal to $24,400,000 at the
Formula Price (the "Purchase Shares").
(b) The Aggregate Consideration shall be paid by
Buyer as follows:
(i) that number of shares of Buyer Common
Stock which represents an aggregate value equal to $23,180,000 at the Formula
Price shall be paid to M+W at the Closing; and
(ii) the balance of the Purchase Shares (the
"Holdback") shall be reserved for issuance pending adjustment in accordance with
Section 3.2 hereof.
3.2. DETERMINATION OF CLOSING NET BOOK VALUE; ADJUSTMENT OF
THE AGGREGATE CONSIDERATION.
(a) Not later than thirty (30) days after the Closing
Date, Sellers shall prepare and deliver to the Buyer (i) a balance sheet (the
"Closing Balance Sheet") which shall reflect the book value of both the
Purchased Assets and the Assumed Liabilities as of the Closing Date and (ii) a
statement (the "Closing Statement") indicating the difference between the
aggregate net book value of the Purchased Assets and the aggregate net book
value of the Assumed Liabilities (the "Closing Net Book Value"). The Closing
Balance Sheet shall be prepared in accordance with German GAAP. The Closing
Balance Sheet delivered to Buyer shall be accompanied by a certificate from KPMG
Peat Marwick, the accountants of the Sellers, that the Closing Balance Sheet has
been prepared in accordance with German GAAP. The Closing Balance Sheet shall
also be accompanied by all necessary and appropriate supporting work papers and
materials. If these work papers and materials have not been provided or
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prepared in a professional and workmanlike manner, the Review Period referenced
in Section 3.2(b) hereof shall be extended to give Buyer's accountants
sufficient time to complete their audit of the Closing Balance Sheet. Inventory
shall be valued as provided in Section 5.11 hereof by Buyer as of the close of
business on the Closing Date based on a physical count undertaken on a mutually
agreed upon date that is on or near the Closing Date at which all parties or
their representatives may be present to observe. To the extent that the Closing
Net Book Value differs from the comparable net book value as derived from the
Base Asset Allocation listed on SCHEDULE 2.1(b) hereof (the "Base Net Book
Value"), then the Aggregate Consideration shall be adjusted up or down on a
dollar for dollar basis by the amount of such difference as hereinafter set
forth. The Base Net Book Value equals $24,400,000.
(b) Following receipt of the Closing Balance Sheet,
Buyer and Buyer's accountants will be afforded a period of 120 calendar days
(the "Review Period") to audit, at Buyer's cost, the Closing Balance Sheet.
During such Review Period, Buyer and Buyer's accountant will be afforded
reasonable access to any of Sellers' employees involved in the preparation of
the Closing Balance Sheet and the records, work papers, trial balances and
similar materials prepared by Sellers or their accountants in connection with
the preparation of the audit and certification of the Closing Balance Sheet;
provided, however, that Buyer shall provide reasonable prior notice of any such
investigation to Sellers so as not to unduly interfere with the operations of
Sellers. At or before the end of the Review Period, Buyer will either (i) accept
the Closing Balance Sheet and the Closing Statement in their entirety, in which
case the Closing Net Book Value will be deemed to be as set forth on the Closing
Statement, and the Closing Balance Sheet and the Closing Statement shall become
final, binding and conclusive on Sellers and Buyer, or (ii) deliver to Sellers
and Sellers' accountants a written notice in accordance with paragraph (d) of
this Section 3.2 disputing the Closing Balance Sheet or the Closing Statement.
(c) Within ten (10) days following the later of (x)
the date the Closing Balance Sheet and the Closing Statement is accepted by
Buyer or (y) the final, binding and conclusive determination of any dispute with
respect to the Closing Balance Sheet or the Closing Statement as provided in
paragraph (d) of this Section 3.2:
(i) if the Closing Net Book Value is less
than the Base Net Book Value and such difference is less than or equal to the
Holdback, then Buyer shall pay to M+W an amount of Buyer Common Stock, based
upon the Formula Price, equal to (i) the Holdback minus (ii) such difference;
(ii) if the Closing Net Book Value is less
than the Base Net Book Value and such difference is greater than the Holdback,
then M+W shall pay to Buyer an amount of Buyer Common Stock, based upon the
Formula Price, equal to (i) the Base Net Book Value minus (ii) the Closing Book
Value minus (iii) the Holdback;
(iii) if the Closing Net Book Value is
greater than the Base Net Book Value, then Buyer shall pay to M+W an amount of
Buyer Common Stock, based upon the Formula Price, equal to the sum of (i) the
Holdback plus (ii) such difference; and
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(iv) if the Closing Net Book Value and the
Base Net Book Value are equal, then the Buyer shall pay to M+W an amount of
Buyer Common Stock, based upon the Formula Price, equal to the Holdback.
(d) In the event that any dispute shall arise as to
the manner of preparation or the accuracy of the Closing Balance Sheet or
Closing Statement prior to the expiration of the Review Period, the Buyer shall
provide Sellers with written notice of each disputed item. In the event of such
a dispute, Buyer and Sellers shall attempt to reconcile in good faith their
differences as to such items within twenty (20) calendar days (the "Resolution
Period") of Sellers' receipt of such notice, and any resolution by them as to
any disputed items shall be final, binding and conclusive on Sellers and Buyer.
If Buyer and Sellers are unable to reach a resolution with such effect within
the Resolution Period, Buyer and Sellers shall submit the dispute to the
Independent CPA. The determination of such dispute by the Independent CPA shall
be final, binding and conclusive on the parties. The fees and expenses of the
Independent CPA shall be assessed by the Independent CPA fifty percent (50%)
against the Sellers and fifty percent (50%) against the Buyer, and shall be paid
by each of them in those proportions.
3.3. ALLOCATION OF AGGREGATE CONSIDERATION. The Aggregate
Consideration shall be allocated among the Purchased Assets and the Infab Shares
in the manner set forth in SCHEDULE 3.3 annexed hereto, subject to any
adjustment to the Aggregate Consideration which shall be made pursuant to
Section 3.2 hereof. The parties hereto acknowledge and agree that such
allocation reflects the respective fair market values of the Purchased Assets
and the Infab Shares and that they will not take a position inconsistent with
such allocation for federal, state, provincial or local Tax purposes. SCHEDULE
3.3 also apportions the Purchased Assets and Infab Shares among the Buyer
Entities.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF JENOPTIK, M+W AND M+W
(US)
4.1. ORGANIZATION AND QUALIFICATION. Each of Jenoptik and M+W
is a corporation duly organized and validly existing under the laws of the
Federal Republic of Germany, with full power and authority to own, operate or
lease its properties and to conduct its business in the manner and in the places
where such properties are owned or leased or such business is conducted by it.
M+W (US) is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, with full power and authority to own,
operate or lease its properties and conduct its business in the manner and in
the places where such properties are owned or leased or such business is
conducted by it. The copies or excerpts from the commercial register as
applicable of Jenoptik's, M+W's and M+W (US)' Constituent Documents as, amended
to date, certified by the local Court (Amtsgericht) of Gera and the Secretary of
State of the State of Delaware, respectively, copies or excerpts of which are
attached as SCHEDULE 4.1 hereto, are complete and correct. M+W or M+W (US) is
the sole beneficial and record owner of all the issued and outstanding shares of
each of the Companies to the extent provided in Section 5.3 hereof.
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4.2. AUTHORITY; NO VIOLATION. Each of Jenoptik, M+W and M+W
(US) has all requisite corporate power and authority to enter into this
Agreement, the Purchase Agreements and each Ancillary Document to which it is a
party and to carry out the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Agreement, the Purchase Agreements
and each Ancillary Document to which it is a party by each of Jenoptik, M+W and
M+W (US) has been duly and validly authorized and approved by all necessary
corporate action. Each such agreement constitutes the legal, valid and binding
obligation of Jenoptik, M+W and M+W (US), enforceable in accordance with its
terms. Assuming the accuracy of the representations and warranties of the Buyer
hereunder, the entering into of the Purchase Agreements and the Ancillary
Documents by Jenoptik, does not, and the consummation by Jenoptik of the
transactions contemplated hereby and thereby will not: (i) violate the
provisions of any national, regional or local law of the jurisdictions where
Jenoptik M) does business; or (ii) violate any provision of its Constituent
Documents; or (iii) breach, result in a default or acceleration of any
obligation under, or cause the loss of any right under any contract, agreement,
license, lease, instrument, indenture, order, arbitration award, judgment, or
decree to which Jenoptik, is a party or by which it is bound, or to which any of
Jenoptik's property is subject, unless such breach, default or violation does
not in any way affect the commercial position and/or legal rights of Buyer or
the Purchased Assets. Assuming the accuracy of the representations and
warranties of the Buyer hereunder, the entering into of the Purchase Agreements
and the Ancillary Documents by M+W does not, and the consummation by M+W of the
transactions contemplated hereby and thereby will not: (i) violate the
provisions of any national, regional or local law of the jurisdictions where,
M+W does business; or (ii) violate any provision of its Constituent Documents;
or (iii) breach, result in a default or acceleration of any obligation under, or
cause the loss of any right under any contract, agreement, license, lease,
instrument, indenture, order, arbitration award, judgment, or decree to which
M+W is a party or by which it is bound, or to which any of M+W's property is
subject, unless such breach, default or violation does not in any way affect the
commercial position and/or legal rights of Buyer or the Purchased Assets.
Assuming the accuracy of the representations and warranties of the Buyer
hereunder, the entering into of the Purchase Agreements and the Ancillary
Documents by M+W (US) does not, and the consummation by M+W (US) of the
transactions contemplated hereby and thereby will not: (i) violate the
provisions of any national, regional or local law of the jurisdictions where M+W
(US) does business; or (ii) violate any provision of its Constituent Documents;
or (iii) breach, result in a default or acceleration of any obligation under, or
cause the loss of any right under any contract, agreement, license, lease,
instrument, indenture, order, arbitration award, judgment, or decree to which
M+W (US) is a party or by which it is bound, or to which any of M+W (US)'s
property is subject, unless such breach, default or violation does not in any
way affect the commercial position and/or legal rights of Buyer or the Purchased
Assets. The execution, delivery and performance of this Agreement, the other
Purchase Agreements and the Ancillary Documents and the transactions
contemplated hereby and thereby by Jenoptik, M+W and M+W (US) do not require the
consent, waiver, approval, authorization, exemption of or giving of notice to
any Governmental Authority except as otherwise provided for in this Agreement.
Except for matters described in SCHEDULE 4.2 hereto, there is no action, suit,
claim, proceeding, investigation or arbitration proceeding pending (or, to the
knowledge of Jenoptik, M+W or M+W (US), threatened) against or otherwise
involving any of Jenoptik, M+W or M+W (US) or any of the officers, directors,
former officers or directors, employees,
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shareholders or agents of any of Jenoptik, M+W or M+W (US) (in their capacities
as such) and there are no outstanding Court Orders to which any of Jenoptik, M+W
or M+W (US) is a party or by which any of the Purchased Assets are bound, any of
which question any of the Purchase Agreements or any Ancillary Documents or any
action to be taken hereby or thereby or affect the transactions contemplated
hereby.
4.3. INVESTMENT INTENT. M+W is purchasing or acquiring the
Purchase Shares for its own account for investment and not with a present view
to, or for sale in connection with, any distribution thereof in violation of the
Securities Act. M+W hereby consents to the imposition of a legend substantially
similar to the following on the certificate for the Purchase Shares and agrees
to abide by the restrictions contained therein:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"),
and may not be sold, transferred or assigned unless such shares are
registered under the Securities Act or an opinion of counsel is
obtained to the effect that such sale, transfer or assignment is exempt
from the registration requirements of the Securities Act."
4.4. RESTRICTED SECURITIES. M+W understands that the Purchase
Shares have not been registered under the Securities Act by reason of a specific
exemption from the registration provisions of the Securities Act which depends
upon, among other things, the bona fide nature of M+W's investment intent as
expressed herein. M+W acknowledges that the Purchase Shares, when received, must
be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. M+W has been
advised of or is aware of the provisions of Rule 144 promulgated under the
Securities Act, which rule permits limited resale of securities purchased in a
private placement subject to the satisfaction of certain conditions contained
therein.
4.5. U.S. PERSON. M+W is not a U.S. Person within the meaning
of Regulation S promulgated under the Securities Act.
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF THE COMPANIES
Each of the Companies hereby jointly and severally represents and warrants
to Buyer as follows:
5.1. ORGANIZATION AND QUALIFICATION OF THE COMPANIES.
(a) INFAB (GERMANY). Infab (Germany) is a corporation
duly organized and validly existing under the laws of the Federal Republic of
Germany, with full power and authority to own, operate or lease its properties
and to conduct its business in the manner and in the places where such
properties are owned or leased or such business is conducted by it. The excerpts
of the commercial register of Infab (Germany), as amended to date, certified by
local Court of Gera, copies of which are attached as SCHEDULE 5.1(a) hereto, are
complete and correct.
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Infab (Germany) is duly qualified to do business and in good standing as a
foreign corporation in each of the jurisdictions identified on SCHEDULE 5.1(a)
and it is not required to be licensed or qualified to conduct its business or
own its property in any other jurisdiction.
(b) INFAB (IRELAND). Infab (Ireland) is a corporation
duly organized, validly existing and in good standing under the laws of the
Republic of Ireland, with full power and authority to own, operate or lease its
properties and to conduct its business in the manner and in the places where
such properties are owned or leased or such business is conducted by it. The
copies of Infab (Ireland)'s Constituent Documents, certified by Infab
(Ireland)'s secretary, copies of which are attached as SCHEDULE 5.1(b) hereto,
are complete and correct. Infab (Ireland) is duly qualified to do business and
in good standing as a foreign corporation in each of the jurisdictions
identified on SCHEDULE 5.1(b) and it is not required to be licensed or qualified
to conduct its business or own its property in any other jurisdiction.
(c) INFAB (JAPAN). Infab (Japan) is a corporation
duly organized, validly existing and in good standing under the laws of Japan,
with full power and authority to own, operate or lease its properties and to
conduct its business in the manner and in the places where such properties are
owned or leased or such business is conducted by it. The copies of Infab
(Japan)'s Constituent Documents as amended to date, certified by its recording
officer, copies of which are attached as SCHEDULE 5.1(c) hereto, are complete
and correct. Infab (Japan) is duly qualified to do business and in good standing
as a foreign corporation in each of the jurisdictions identified on SCHEDULE
5.1(c) and it is not required to be licensed or qualified to conduct its
business or own its property in any other jurisdiction.
(d) INFAB (SCOTLAND). Infab (Scotland) is a
corporation duly organized, validly existing and in good standing under the laws
of England and Wales, with full power and authority to own, operate or lease its
properties and to conduct its business in the manner and in the places where
such properties are owned or leased or such business is conducted by it. The
copies of Infab (Scotland)'s Constituent Documents as amended to date, certified
by Infab (Scotland)'s secretary, copies of which are attached as SCHEDULE 5.1(d)
hereto, are complete and correct. Infab (Scotland) is duly qualified to do
business and in good standing as a foreign corporation in each of the
jurisdictions identified on SCHEDULE 5.1(d) and it is not required to be
licensed or qualified to conduct its business or own its property in any other
jurisdiction.
(e) INFAB (USA). Infab (USA) is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with full power and authority to own, operate or lease its properties
and to conduct its business in the manner and in the places where such
properties are owned or leased or such business is conducted by it. The copies
of Infab (USA)'s Constituent Documents certified by the Delaware Secretary of
State, and Infab (USA)'s Secretary, as appropriate, copies of which are attached
as SCHEDULE 5.1(e) hereto, are complete and correct. Infab (USA) is duly
qualified to do business and in good standing as a foreign corporation in each
of the jurisdictions identified on SCHEDULE 5.1(e) and it is not required to be
licensed or qualified to conduct its business or own its property in any other
jurisdiction.
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5.2. AUTHORITY; NO VIOLATION. Each of the Companies has all
requisite corporate power and authority to enter into each of the Purchase
Agreements and each Ancillary Document to which it is a party and to carry out
the transactions contemplated hereby and thereby. The execution, delivery and
performance of each of the Purchase Agreements and each Ancillary Document to
which it is a party by each of the Companies has been duly and validly
authorized and approved by all necessary corporate action. Each such agreement
constitutes the legal, valid and binding obligation of each of the Companies,
enforceable in accordance with its terms. Assuming the accuracy of the
representations and warranties of the Buyer hereunder, the entering into of the
Purchase Agreements and Ancillary Documents to which it is a party by each of
the Companies does not, and the consummation by each of the Companies of the
transactions contemplated hereby and thereby will not: (i) violate the
provisions of any national, regional or local Law of the jurisdictions where it
does business; or (ii) violate any provision of its constituent Documents; or
(iii) breach, result in a default or acceleration of any obligation under, or
cause the loss of any right under, any contract, agreement, license, lease,
instrument, indenture, order, arbitration award, judgment, or decree to which it
is a party or by which it is bound, or to which any of its property (other than
the Excluded Assets) is subject. The execution, delivery and performance of the
Purchase Agreements and the Ancillary Documents and the transactions
contemplated hereby and thereby by each of the Companies a party thereto do not
require the consent, waiver, approval, authorization, exemption of or giving of
notice to any Governmental Authority except as otherwise provided for in this
Agreement.
5.3. CAPITALIZATION.
(a) The capitalization of each of the Sellers is as
set forth on SCHEDULE 5.3 hereto. All of the capital stock of any Company shown
on SCHEDULE 5.3 as owned by M+W or M+W (US) is owned by such corporation free
and clear of any Lien or beneficial ownership interest of any other Person.
(b) Infab (Ireland)'s authorized capital stock
consists of 99,000 ordinary shares of Common Stock, IR(pound)1 par value per
share, and 1,000 deferred ordinary shares, IR(pound)1 par value per share, of
which 24,000 shares are issued and outstanding and owned beneficially and of
record by Infab (Germany) free and clear of any Lien or beneficial interest of
any other Person. Infab (Scotland)'s authorized capital stock consists of 60,000
ordinary shares , $1.00 par value, and 1,000 deferred ordinary shares, of which
40,800 shares are issued and outstanding and owned beneficially and of record by
Infab (Germany) free and clear of any Lien or beneficial interest of any other
Person. Infab (Ireland) has not issued any share warrants to bearers. The
beneficial ownership of the equity interest of each of Infab (Ireland) and Infab
(Scotland) is set forth on SCHEDULE 5.3.
(c) All of the outstanding shares of each of the
Companies are duly authorized, validly issued, fully paid, and non-assessable,
free of all preemptive rights and have been issued in compliance with all
applicable international, national, regional and local Laws. There are no
outstanding options, warrants, rights or agreements of any kind for the issuance
or sale of, or outstanding securities convertible into or exchangeable for, any
other ownership
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interest or any other equity security of any of the Companies. Any such shares
owned by Jenoptik or any of the Infab Companies is owned free of any Liens.
5.4. SUBSIDIARIES; OTHER INVESTMENTS. Except as disclosed in
SCHEDULE 5.4, neither Infab (Ireland) nor Infab (Scotland) owns, directly or
indirectly, any capital stock or ownership interest of any corporation or other
business organization. Except as disclosed in SCHEDULE 5.4, none of the
Companies is a partner or participant in any joint venture or partnership of any
kind.
5.5. FINANCIAL STATEMENTS.
(a) Attached as SCHEDULE 5.5(a) hereto are the
following financial statements relating to the Infab Business, together with all
related compilations, reviews and other reports issued by the Infab Business'
independent certified public accountants with respect thereto, all of which
statements (including the notes thereto) are complete and correct in all
material respects and present fairly the assets, liabilities and financial
position of the Infab Business on the date of such statements, and the results
of operations and changes in the financial condition of the Infab Business for
the periods covered thereby. Such financial statements have been prepared in
accordance with US GAAP, or other applicable accounting standard as indicated on
SCHEDULE 5.5(a) consistently applied throughout the periods involved and prior
periods:
(i) Audited Consolidated Balance Sheets as
of December 31, 1997 and December 31, 1998 and audited Consolidated Statements
of Operations and Cash Flows for the three years ending December 31, 1998 for
the Infab Business.
(ii) Audited Consolidated Balance Sheet as
of June 30, 1999 and unaudited Consolidated Statements of Operations and Cash
Flows for the six months ending June 30, 1999 for the Infab Business.
(b) The consolidated audited balance sheet of the
Infab Business dated June 30, 1999 (the "Base Balance Sheet Date") included in
the above financial statements is sometimes referred to hereinafter as the "Base
Balance Sheet".
(c) The books of account of the Infab Business for
the past three (3) years are complete and correct in all material respects and
have been maintained on a consistent basis. All auditor's letters to management
of any of the Infab Companies relevant to any of the Infab Business since
January 1, 1998 and any other significant correspondence from or to such
auditors during such period, if any, are attached as SCHEDULE 5.5(c) hereto.
5.6. ABSENCE OF UNDISCLOSED LIABILITIES. There are no material
liabilities of any nature with respect to the Infab Business or the Purchased
Assets, whether accrued, absolute, contingent or otherwise (including without
limitation liabilities as guarantor or otherwise with respect to obligations of
others, or liabilities for Taxes due or then accrued or to become due), except:
(a) liabilities stated or adequately reserved against on the Base Balance Sheet,
(b)
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liabilities incurred since the Base Balance Sheet Date in the ordinary course of
business consistent with past practices (none of which is a claim for breach of
contract, breach of duty, breach of warranty, tort, or infringement of an
intellectual property right), which liabilities, to the extent outstanding on
the Closing Date, will be reflected on the Closing Balance Sheet, and (c)
liabilities disclosed on SCHEDULE 5.6 hereto. There is no fact which materially
adversely affects, or may in the future (so far as can now be reasonably
foreseen) materially adversely affect, the Infab Business or the Purchased
Assets which has not been specifically disclosed herein or in a schedule hereto.
5.7. CONDUCT OF BUSINESS; ABSENCE OF CERTAIN CHANGES. Since
the Base Balance Sheet Date, the Infab Business has been conducted only in the
ordinary course of business, consistent with prior practices and, whether or not
in the ordinary course of business, there has not been any change in the
financial condition (including working capital, earnings, reserves, properties,
assets, liabilities, business or operations), of any of the Companies which
change, by itself or in conjunction with all other such changes, whether or not
arising in the ordinary course of business, has had a material adverse effect on
the Infab Business. Without limiting the generality of the foregoing, except as
disclosed on SCHEDULE 5.7 hereto, since the Base Balance Sheet Date there has
not been (to the extent relevant to the Infab Business or the Purchased Assets,
except as otherwise indicated):
(a) any amendment to the Constituent Documents of
Infab (Ireland) or Infab (Scotland), whether or not relevant to the Infab
Business or the Purchased Assets;
(b) any contingent liability incurred by Infab
(Ireland) or Infab (Scotland), whether or not relevant to the Infab Business or
the Purchased Assets, as guarantor or otherwise, with respect to the obligations
of others;
(c) any Lien placed on any of the Purchased Assets
which remains in existence on the date hereof;
(d) any obligation or liability incurred by Infab
(Ireland) or Infab (Scotland), whether or not relevant to the Infab Business or
the Purchased Shares, other than obligations and liabilities incurred in the
ordinary course of business consistent with past practice (none of which is a
claim for breach of contract, breach of duty, breach of warranty, tort or
infringement of an intellectual property right);
(e) any sale or other disposition, or any agreement
or other arrangement for the sale or other disposition, of any of the Purchased
Assets other than in the ordinary course of business;
(f) any capital expenditure or commitment in excess
of $10,000 with respect to any individual item or in excess of $25,000 with
respect to all such items, or any lease or agreement to lease any assets with an
annual rental in excess of $10,000 with respect to any individual item or in
excess of $25,000 with respect to all such items;
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(g) any damage, destruction or loss, whether or not
covered by insurance, of any of the Purchased Assets in excess of $25,000;
(h) whether or not relevant to the Infab Business or
the Purchased Assets, any declaration, setting aside or payment of any dividend
on, or the making of any other distribution in respect of, the capital stock of
Infab (Ireland) or Infab (Scotland), direct or indirect redemption, purchase or
other acquisition by Infab (Ireland) and Infab (Scotland) of its capital stock,
or any issuance of any securities of Infab (Ireland) and Infab (Scotland);
(i) any intercorporate loan or transfer between any
of the Companies and Jenoptik or any of its affiliates;
(j) any material labor trouble or claim of unfair
labor practices involving any of the Companies;
(k) any change in the compensation or other amounts
payable or to become payable by any of the Companies to any of its officers,
employees or agents; or any change in any bonus, pension or profit sharing
payment, entitlement or arrangement made to or with any of such officers,
employees or agents; or any grant of any loans or severance or termination pay
(other than as set forth on SCHEDULE 5.16 consistent with any of the Companies'
established severance pay practices); or any entrance into or variation of the
terms of any employment agreement or adoption of or increase in, the benefits
under any Benefit Plan;
(l) any change with respect to the management or
supervisory personnel of any Company;
(m) any payment or discharge of a material Lien,
claim, obligation or liability of any of the Companies which was not shown on
the Base Balance Sheet or incurred in the ordinary course of business
thereafter;
(n) any obligation or liability incurred by any of
the Companies to any of its officers or directors or any loans or advances made
by the Company to any of its officers or directors, except normal compensation
and expense allowances payable to officers;
(o) any write-downs of the value of any inventory
included in the Purchased Assets (including write-downs by reason of shrinkage
or mark-down) or write-offs as uncollectible of any notes or accounts receivable
included in the Purchased Assets, except for write-downs or write-offs that are
in the aggregate less than $10,000 incurred in the ordinary course of business;
(p) any disposal, sale, assignment, license or lapse
of any rights to the use of any trademark, tradename, patent, copyright, license
or disposal, sale, assignment, or license of or disclosure to any person other
than Buyer of any trade secret, technology, formula, process, know-how or other
confidential information not theretofore a matter of public knowledge other than
pursuant to confidentiality agreements;
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(q) any change in any method of accounting or
accounting practice; or
(r) any agreement, whether in writing or otherwise,
to take any action described in this Section 5.7.
5.8. PAYMENT OF TAXES.
(a) The Companies have paid or made appropriate
reserves in the financial statements in Section 5.7 above for all Taxes due
related to the Infab Business. With respect to all Taxes or which have not yet
accrued or otherwise become due, to the Companies' knowledge, adequate provision
has been made in the pertinent financial statements referred to in Section 5.7
above. The provisions for Taxes reflected in the above-mentioned financial
statements are adequate to cover any liabilities of any of the Companies for
Taxes in respect of the operation of the Infab Business during the periods
covered by said financial statements and all prior periods. All Taxes and other
assessments and levies which any of the Companies is required to withhold or
collect on behalf of any Governmental Authority with respect to the Infab
Business have been withheld or collected and paid over or will be paid over to
the proper Governmental Authorities as required.
(b) Each of Infab (Ireland) and Infab (Scotland) has
duly and timely filed all applicable tax returns, reports and declarations with
respect to all applicable Taxes (the "Tax Returns"). All of the Tax Returns are
complete and correct in all respects. The Tax Returns filed by each of Infab
(Ireland) and Infab (Scotland) for the most recent two (2) fiscal years are
attached to SCHEDULE 5.8. All Taxes shown to be due on the Tax Returns have been
paid, or are being contested in good faith by that Company through appropriate
legal or administrative procedures in the jurisdiction in question and such
contest is being diligently pursued. All of such contested taxes are listed on
SCHEDULE 5.8.
(c) Except as set forth on SCHEDULE 5.8, none of the
Tax Returns have been examined, reviewed or audited by any Governmental
Authority, nor are any of the Companies aware of any intention on the part of
any Governmental Authority to do so. No Governmental Authority in any relevant
jurisdiction is now asserting or, to the knowledge of any of the Companies,
threatening to assert, against Infab (Ireland) or Infab (Scotland) any claim for
additional Taxes, or interest thereon or penalties in connection therewith with
respect to the Infab Business or any other activities which may create any Lien
upon Infab (Ireland) or Infab (Scotland). None of Infab (Ireland) or Infab
(Scotland) has extended the time for the filing of any Tax Return or waived any
statute of limitations for the assertion of liability by any Governmental
Authority for any tax year, which extension or waiver is still in effect.
5.9. TITLE TO PROPERTIES; LIENS; CONDITION OF PROPERTIES.
(a) The Purchased Assets do not include any real
property. Set forth on SCHEDULE 5.9(a) is a listing of (i) all real property
owned by any of the Companies and used in the Infab Business, including a
description of the real estate and any Liens on the property; (ii) certain
leases under which certain of the Companies lease real property as a tenant in
California, Colorado Springs, Colorado, and Jena, Germany (collectively, the
"Material Real Property"),
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together with a description of such property, the name of the landlord and a
description of the significant terms of each lease.
(b) Set forth on SCHEDULE 5.9(b) is a listing of (i)
all machinery, equipment and other tangible personal property with an original
cost in excess of $10,000 used or owned by any of the Companies in the Infab
Business and (ii) a listing of all leases under which any of the Companies
leases any personal property which is used in the operation of the Infab
Business requiring annual rental payments in excess of $10,000, together with a
description of such property (collectively, the "Material Personal Property").
SCHEDULE 5.9(b) lists all locations where Material Personal Property is located.
(c) Except for assets or properties acquired since
the Base Balance Sheet Date and set forth on SCHEDULE 5.9(c), all of the assets
and properties of each of the Companies are reflected on the Base Balance Sheet
(except to the extent not required to be so reflected by German. GAAP). The only
intangible assets and properties owned by any of the Companies or used in the
conduct of the Infab Business are the Company Intellectual Property rights
described in Section 5.12. Except for the Excluded Assets, the Purchased Assets
include all of the assets owned or leased by Jenoptik or the Infab Companies
that are necessary for or primarily used in the Infab Business.
(d) Each of the Companies is in compliance with all
terms and conditions of each lease of Material Real Property or Material
Personal Property and no event has occurred nor, to the Companies' knowledge,
does any circumstance exist that (with or without notice or the passage of time
or both) would constitute a material violation or default under any such lease
and none of the Companies has given or received notice of any alleged violation
or of any default under any such agreement.
(e) Each of the Companies has good and marketable
title in fee simple to all of its owned personal property included in the
Purchased Assets. None of the Material Real Property or Material Personal
Property owned or used by each of the Companies is subject to any Lien (other
than for taxes not yet due and payable) of any kind against any such Company's
rights in such property and, to the extent such property is used by the Company
but owned by a third party, to the knowledge of the Companies there are no Liens
(other than for taxes not yet due and payable) of any kind against such third
party's rights in such property.
(f) All buildings, machinery and equipment used or
owned by any of the Companies in the operation of the Infab Business are in
satisfactory condition, presently working order and repair, normal wear and tear
excepted, are adequate for the uses to which they are being put, and have been
adequately maintained.
(g) There are no outstanding contracts made by any of
the Companies for the construction or repair of any improvements to the Material
Real Property that have not been fully paid for.
(h) None of the Companies has received any written
notice from any insurance carrier of any defects or inadequacies in the Material
Real Property, or in any portion
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thereof, that would adversely affect the insurability thereof or the cost of
such insurance, or that requires corrective action. There are no pending
insurance claims of any of the Companies related to the Real Property.
5.10. COLLECTIBILITY OF RECEIVABLES. All of the accounts
receivable, trade accounts, notes receivable, contract receivables, unbilled
invoices and other receivables ("Receivables") of each of the Companies shown or
reflected on the Base Balance Sheet are, and those to be reflected on the
Closing Balance Sheet will be (a) valid and enforceable claims, (b) which arose
out of transactions with unaffiliated parties, (c) fully collectible within
ninety (90) days of invoice date through normal means of collection, and (d)
subject to no set-off, defense or counterclaim. The values at which Receivables
are accrued on the Base Balance Sheet and on the Closing Balance Sheet are, and
will be, accrued in accordance with German GAAP applied on a basis consistent
with prior financial statements of the Infab Business.
5.11. INVENTORIES.
(a) All inventories of finished goods and raw
materials of each of the Companies reflected on the Base Balance Sheet are and
those to be reflected on the Closing Balance Sheet will be of a quantity and
quality normally salable in the ordinary course of business at commercially
reasonable prices consistent with each of the Companies' prior experience,
except to the extent of the obsolete inventory reserve in the amount shown on
the Base Balance Sheet or to be shown on the Closing Balance Sheet. All such
inventories are valued on a lower of cost or market basis and in accordance with
each of the Companies' normal valuation methods and policies, consistently
applied. Purchase commitments for raw materials and parts are not in excess of
normal requirements and none are at prices in excess of current market prices.
Except as set forth on SCHEDULE 5.11, since the date of the Base Balance Sheet,
no inventory items have been sold or disposed of except through sales in the
ordinary course of business at prices no less than prevailing market prices.
(b) The value of the finished goods inventory on the
Base Balance Sheet Date, and on the Closing, when added to the cost of the
variable expenses of freight, commissions and discounts, shall not exceed the
market price. The inventories of finished goods value on the Closing Balance
Sheet shall thereafter be salable at prices equal to or in excess of the amount
necessary, after variable expenses, to sell such inventory at a price equal to
no less than cost. All inventories of finished goods existing on the Base
Balance Sheet Date and at Closing and included in the Purchased Assets will be
salable on or before the date 180 days after Closing, through each of the
Companies' normal and ordinary course of business and consistent with the past
practices of each of the Companies.
5.12. INTELLECTUAL PROPERTY RIGHTS.
(a) For purposes of this Section 5.12, "Intellectual
Property" means (i) all patents, patent applications, trade marks (whether
registered or unregistered) or service marks, trade mark or service mark
applications, trade names, copyrights, and mask works or other statutorily
defined rights to intellectual property under the laws of the Federal Republic
of Germany, the European Union, the United States of America, Japan or other
relevant jurisdiction
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(collectively, "Statutory Intellectual Property"), and (ii) all trade secrets,
and manufacturing and other secret processes and technologies and know-how
required for or used in or related to the Infab Business (collectively "Trade
Secrets").
(b) Except as set forth on SCHEDULE 5.12(b)(1), each
of the Companies owns or has the right to use, without payment of any material
royalty not otherwise expressly disclosed in this Agreement or a schedule or
exhibit hereto, all Intellectual Property rights necessary to or regularly used
in the conduct of the Infab Business as presently conducted. All material rights
of ownership or use of Intellectual Property currently held by any of the
Companies are listed on SCHEDULE 5.12(b)(2) except for Trade Secrets which have
not been reduced to writing and which would not be reduced to writing by a
corporation acting in a reasonable manner in the Companies' industry.
(c) Except as set forth on SCHEDULE 5.12(c), all
rights to Statutory Intellectual Property required to be listed in SCHEDULE
5.12(b)(2):
(i) have been duly registered, filed in, or
issued by, European Patent Office, the United States Patent and Trademark
Office, United States Register of Copyrights, or the corresponding offices of
other countries identified on said schedule;
(ii) have been properly maintained and
renewed in accordance with all applicable laws and regulations in such
countries;
(iii) in the case of patents or patent
applications filed in the names of individual inventors, have been duly assigned
to the appropriate Company and such assignment(s) have been recorded in the
appropriate government offices;
(iv) are owned by one or more of the
Companies, free and clear of any licenses, sub-licenses, or Liens, such that no
other person has any right or interest in or license to use or right to license
others to use any of the Statutory Intellectual Property;
(v) are freely transferable (except as
otherwise required by law); and
(vi) are not subject to any outstanding
order, decree, judgment or stipulation.
(d) Except as set forth on SCHEDULE 5.12(d) hereof,
all material copyrightable works of authorship were developed and authored as
original works of authorship (i) either by full-time employees of a Company
within the normal scope of their duties as works for hire, or (ii) by third
persons as works for hire under an express written agreement so stating or (iii)
under a written agreement expressly transferring and assigning all rights to a
Company;
(e) Except as set forth on SCHEDULE 5.12(e) hereof,
each of the Companies requires all employees to execute a confidentiality,
noncompetition and non-disclosure agreement in the form which has been provided
to the Buyer. All other noncompetition,
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nonsolicitation, confidentiality, nondisclosure and related covenants and
agreements related to Trade Secrets to which any Company is a party or which
benefit any Company are listed on SCHEDULE 5.12(e). All such agreements are
valid, binding and enforceable against the parties thereto. There are no
defaults or conditions which, after notice or lapse of time or both, would
constitute a default by any Company under any such agreements or, to the
knowledge of any Company, a default by any other party thereto.
(f) All material licenses and other agreements
pursuant to which any item of Intellectual Property is licensed to any Company
or is licensed by any Company are valid, binding and enforceable. There does not
exist under any such license or agreement a default or event or condition which,
after notice or lapse of time or both, would constitute a default by any party
thereto. None of such licenses or agreements contain any provision that would
prevent use by Buyer following the Closing of the Intellectual Property as
presently used by any Company. Except as set forth on SCHEDULE 5.12(f), all of
such licenses and agreements, including without limitation those listed on
Schedule 5.12(b)(1) are freely assignable to Buyer or a Buyer Entity, as
applicable, without the consent of any other party and shall continue in effect
on their current terms upon consummation of the transactions contemplated by
this Agreement. The Licensed Products referenced in the License Agreement
identified on SCHEDULE 5.12(f)(1) hereof relate only to indexers and are not
incorporated, designed into or used in any way with any of the Infab Business'
Ergospeed or SMIF robots. Revenues of the Infab Business attributable to such
Licensed Products were less than $300,000 for the twelve months ended August 31,
1999. Revenues of the Infab Business attributable to such Licensed Products are
expected to be less than $300,000 for the twelve months ended August 31, 2000
based upon backlog and business trends in the Infab Business to date. If the
Infab Business were to lose its rights to such Licensed Products, the only
adverse effect to the Infab Business would be the loss of revenue directly
attributable to such Licensed Products, which would not exceed $300,000 in the
next twelve months.
(g) No proceedings to which any Company is a party
are pending which (i) challenge the rights of any Company in respect of the
Intellectual Property required to be listed on SCHEDULE 5.12(b)(2), or (ii)
charge any Company with infringement of any other person's rights in
Intellectual Property. To the knowledge of each Company, no such proceeding to
which a Company is not a party has been filed or is threatened to be filed.
(h) None of the Companies is infringing upon any
valid Statutory Intellectual Property rights of any other person and, to the
knowledge of any of the Companies, none of the rights in Statutory Intellectual
Property required to be listed on SCHEDULE 5.12(b)(2) is being infringed by any
other person. None of the Companies is using or in any way making use of any
Trade Secrets of any third party, including without limitation a former employer
of any employee of a Company and, to the knowledge of any of the Companies, no
other person is using any Trade Secret of any Company without authorization.
(i) Neither Jenoptik nor M+W, nor any Company officer
or employee owns, directly or indirectly, in whole or in part, any Intellectual
Property right which any
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Company has used, is presently using, or the use of which is reasonably
necessary to the Infab Business as presently conducted.
5.13. CONTRACTS AND COMMITMENTS.
(a) Except for contracts, commitments, plans,
agreements and licenses described in SCHEDULE 5.13(a) hereto, none of the
Companies is a party to or subject to any contract, agreement or commitment
(written or oral) relevant to the Infab Business or the Purchased Assets:
(i) for the purchase of any commodity,
material, equipment or asset except for purchase orders in the ordinary course
of business involving payments exceeding $10,000 each;
(ii) creating any obligations of any of the
Companies after the Base Balance Sheet Date which call for payments of more than
$5,000 during any month for agreements without a fixed term or more than $20,000
over the term of the agreement for agreements with a fixed term;
(iii) providing for the purchase of all or
substantially all of its requirements of a particular product from a supplier;
(iv) which by its terms does not terminate
or is not terminable without premium or penalty by any of the Companies (or its
successor or assign) upon ninety (90) days notice;
(v) for the sale or lease of Purchased
Assets not made in the ordinary course of business;
(vi) with any sales agent or distributor of
products of any of the Companies;
(vii) containing covenants limiting the
freedom of any of the Companies to compete in any line of business or with any
person or entity;
(viii) for a license or franchise (as
licensor or licensee or franchisor or franchisee);
(ix) involving any arrangement or obligation
with respect to the return of inventory or merchandise other than on account of
a defect in condition, or failure to conform to the applicable contract;
(x) which is subject to a change of control
provision; or
(xi) which is material to the Purchased
Assets or Infab Business.
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(b) Each of the contracts, commitments, plans,
agreements and licenses with respect to the Infab Business and to which each of
the Companies is a party, including those listed on SCHEDULE 5.13(a) (each a
"Contract") is valid, binding and enforceable against the Companies and, to the
knowledge of each of the Companies, against the other parties thereto; the
Company a party thereto is in full compliance with all terms and conditions of
each Contract; and, except as set forth on SCHEDULE 5.13(b), no event has
occurred or circumstance exists that (with or without notice or the passage of
time or both) would constitute a material violation of or default under such
Contract by any of the Companies or, to the knowledge of the Companies, by the
other party or parties thereto, and none of the Companies has either given or
received notice of any alleged violation of or default under any such Contract.
Except as listed on SCHEDULE 5.13(b)(1), neither the execution and delivery of
this Agreement by the Companies nor the consummation or performance by the
Companies of the transactions contemplated hereby will, directly or indirectly,
with or without notice or lapse of time or both give rise to a right of
termination, cancellation or acceleration or require the consent, authorization
or approval of or any notice to or filing with any third Person under any
Contract included among the Purchased Assets. Except as described in SCHEDULE
2.1(c), none of Jenoptik or the Infab Companies have received prepayments of any
kind on any Contract.
(c) Except as set forth on SCHEDULE 5.13(c), to the
knowledge of any of the Companies, none of the Companies is a party to any
Contract with respect to the Infab Business or order for the sale of goods or
the performance of services with respect to the Infab Business which, if
performed by any of the Companies in accordance with its terms, could only be
performed with a negative gross profit margin or which has no reasonable
likelihood of being performed within the time limits therein provided.
(d) Since July 1, 1998, none of the Companies has
experienced any termination, cancellation, limitation or modification or change
in any business relationship with any material supplier or customer, nor have
any of the Companies received notice or otherwise have knowledge that any
material customer or supplier intends to cease, or materially reduce or change
the terms of, doing business with any of the Companies or to terminate any
agreement with any of the Companies where such action has had or would have a
material adverse effect on the business of the Company. SCHEDULE 5.13(d) lists
every material customer or supplier of the Company and the amount of business
with that customer. For purposes hereof, "material customers" mean the top 20
customers of the Infab Business based upon revenue recognized since July 1,
1998. For purposes hereof, "material suppliers" mean the top 20 suppliers to the
Infab Business based upon expenses incurred or accrued since July 1, 1998.
(e) The backlog of each of the Companies with respect
to the Infab Business (including all accepted and unfulfilled sales orders) is
not materially less than the backlog amount for that Company set forth on
SCHEDULE 5.13(e), and the aggregate of all outstanding purchase orders issued by
each Company with respect to the Infab Business (including all contracts or
commitments for the purchase by that Company of materials or other supplies) is
not materially more than the purchase order amount set forth on such SCHEDULE
5.13(e). All such sales and purchase commitments were made in the ordinary
course of business.
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5.14. EMPLOYEES. SCHEDULE 5.14 attached hereto sets forth a
true and complete list of all of the following employees and consultants of each
of the Companies: (a) all employees of each of the Companies; and (b) all
technical and business consultants and independent contractors retained by any
of the Companies currently or since July 1, 1998 to whom any of the Companies
paid or are obligated to pay an aggregate amount greater than Fifty Thousand
Dollars ($50,000). Also shown on SCHEDULE 5.14 are the name and rate of
compensation (including all bonus compensation and other remunerative payments
of any kind) of such persons.
5.15. LABOR AND EMPLOYEE RELATIONS.
(a) Complete and accurate copies of all written
employment and consulting agreements of the persons listed on SCHEDULE 5.14 to
which any of the Companies is a party or of which any of the Companies is a
beneficiary have been made available to the Buyer.
(b) Except as shown on SCHEDULE 5.15(b), (i) none of
the employees of any of the Companies are covered by any collective bargaining
agreement with any trade or labor union, employees' association or similar
association or any industry-wide labor agreement, (ii) no labor organization or
group of employees has made a pending demand for recognition, (iii) there are no
labor representation questions involving any of the Companies; and (iv) there is
no organizing activity involving any of the Companies pending by any labor
organization or group of employees. There are no representation elections,
arbitration proceedings, labor strikes, slowdowns or stoppages, material
grievances, lockouts, or other labor troubles pending, or threatened, with
respect to the employees of any of the Companies, nor has any of the Companies
experienced any work stoppage or other material labor difficulty during the
three (3) years immediately preceding the date of this Agreement.
(c) Except as set forth on SCHEDULE 5.15(c), Each of
the Companies has complied in all material respects with all applicable Laws of
each relevant jurisdiction (including the United States, Germany, the United
Kingdom, Japan, Ireland, the Netherlands and Taiwan) relating to the employment
of labor, including without limitation those relating to dismissal, redundancy,
minimum notice, wages, hours, unfair labor practices, discrimination, civil
rights, plant closings, immigration and the collection and payment of social
security and similar taxes.
(d) Except as set forth on SCHEDULE 5.15(d), there
are no complaints that have been served to any of the Companies and, to the
Companies' knowledge, there are no other complaints, proceedings, investigations
or charges against any of the Companies pending or threatened before any
Governmental Authority in the United States, Germany, the United Kingdom, Japan,
Ireland, the Netherlands, Taiwan or elsewhere, by or on behalf of any employee
or former employee of any of the Companies.
(e) Except as set forth on SCHEDULE 5.15(e), each of
the Companies has paid in full (or made provisions for payment in full) to its
employees, agents and contractors all wages, salaries, commissions, bonuses and
other direct compensation for all services performed by them. None of the
Companies has, or will have on the Closing Date, any contingent liability for
sick leave, vacation time, holiday pay, severance pay or similar items, whether
arising as a
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matter of law, labor agreement, or otherwise, other than as set forth on the
Base Balance Sheet or arising after the date thereof and set forth on the
Closing Balance Sheet. Except as set forth in SCHEDULE 5.15(e), the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby will not trigger any severance pay obligation
under any contract or at law.
(f) Except as set forth on SCHEDULE 5.15(f), since
January 1, 1998 there has not been any fine or penalty imposed or asserted
against any of the Companies under any laws (whether national, regional or
local) of any applicable jurisdiction relating to employment, immigration or
occupational safety matters.
5.16. EMPLOYEE BENEFITS
(a) SCHEDULE 5.16 sets forth a brief description of
every plan, arrangement or policy, written or oral, relating to current or
former employees of any Company, including any Employee Benefit Plan.
(b) There are no agreements or commitments of any
Company, whether or not legally binding, to create any additional Employee
Benefit Plan not listed on SCHEDULE 5.16. Except as set forth on SCHEDULE 5.16,
there are no Employee Benefit Plans for which any Company has any liability,
either for funding, benefit payments, withdrawal or termination liability, or
otherwise. For any Employee Benefit Plan for which a liability exists, the
liability is identified on SCHEDULE 5.16.
5.17. ENVIRONMENTAL MATTERS.
(a) Except as disclosed in SCHEDULE 5.17(a) hereto,
any Hazardous Materials used or generated by any of the Companies have always
been and are being generated, used, stored, treated and disposed on and at any
of the properties or facilities owned or leased by the Companies, the former
parent corporation of the Companies or, to the best knowledge of the Companies
any predecessors-in-interest of Infab (USA) in compliance in all material
respects with all applicable Laws, Court Orders, Government Authorizations,
including Environmental Laws. The Companies are in compliance in all material
respects with all Environmental Laws.
(b) Except as set forth on SCHEDULE 5.17(b) hereto,
none of the Companies has become subject to Court Order, or has received or, to
the knowledge of the Companies, become subject to any written claim, notice,
complaint or request for information from any Governmental Authority of the
United States, Germany, the United Kingdom, Ireland, Japan, and/or the European
Union or other relevant Governmental Authority or any private party (i) alleging
violation of or noncompliance with any Environmental Law, (ii) asserting
potential liability under any Environmental Law or (iii) requesting
investigation or clean-up of any Environmental Site under any Environmental Law.
(c) Except as disclosed in SCHEDULE 5.17(c), no
Hazardous Materials used or generated by the Companies, their former parent
corporation or, to their knowledge, any
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predecessors-in-interest to the Companies, have ever been, are being, or are
intended to be or are threatened with being spilled, released, discharged,
disposed, placed, leaked, or otherwise caused to become located in the air, soil
or water in, under or upon a Environmental Site or any land adjacent thereto in
material violation of any Environmental Law. Infab (USA) had provided Buyer with
copies of all notices filed pursuant to any Environment Law.
(d) Except as disclosed in SCHEDULE 5.17(d), no
Hazardous Materials have ever been shipped by or for the Companies, their former
parent corporation or, to the knowledge of the Companies, any
predecessor-in-interest to the Companies, to other sites or facilities for
treatment, storage or disposal, and the Companies have not received any notice
that any sites or facilities to which any such wastes have been shipped or sent
to are subject to or threatened to become subject to any governmental response
action or clean up order. The Companies have provided Buyer with copies of all
manifests, bills of lading and other receipts or evidence documenting disposal
or recycling of Hazardous Materials and sales receipts of the process
by-products relating to operations of the Companies.
(e) Except as set forth on SCHEDULE 5.17(e), none of
the Companies, their former parent corporations nor, to the knowledge of the
Companies, any predecessor-in-interest to the Companies has treated, stored for
more than ninety (90) days, disposed of or recycled any Hazardous Materials on
any Environmental Site nor has anyone else treated, stored for more than ninety
(90) days, disposed of or recycled any of the foregoing on any Environmental
Site.
(f) Except as disclosed in SCHEDULE 5.17(f) hereto,
Hazardous Materials have been collected, managed, recycled, shipped and disposed
by the Companies and their former parent corporation in accordance with all
Environmental Laws.
(g) All underground tanks and other storage
facilities for Hazardous Materials located at any Environmental Site are
disclosed in SCHEDULE 5.17(g) hereto and, to the knowledge of the Companies, no
other underground tanks or other storage facilities for Hazardous Materials have
been located on an Environmental Site and copies of all notifications made to
federal, state or local authorities pursuant to Environmental Laws relating to
underground storage tanks have been provided to Buyer. As of the date hereof,
none of such tanks and other underground storage facilities are in violation of
any Environmental Law in any respect.
(h) Except as disclosed in SCHEDULE 5.17(h) hereto,
all wells, water discharges and other water diversions and all air emission
sources on any Environmental Site are properly registered and/or permitted
under, and copies of such permits have been provided to Buyer and do not violate
any applicable law.
(i) Except as set forth on SCHEDULE 5.17(i), there
are no asbestos containing materials, capacitors, transformers or other
equipment or fixtures containing PCBs located at any Environmental Site.
(j) The Companies do not produce, purchase or use in
their products, or purchase or use any material, part, component or subassembly
incorporated into their products,
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containing any chemical or other material to which local packaging and/or
disclosure laws apply except as set forth on SCHEDULE 5.17(j).
(k) There are no Liens under Environmental Laws on
any Environmental Site chargeable against the rights of any Company with respect
to the Infab Business or on any Purchased Assets of the Companies and, to the
knowledge of the Companies, no government actions have been taken or are in
process which could subject any Environmental Site or any such Purchased Assets
to such encumbrances, and the Companies would not be required to place any
notice or restriction relating to Hazardous Materials at any Environmental Site
in any deed to such property except as set forth on SCHEDULE 5.17(k).
(l) The Companies have made available to Buyer all
environmental audits, assessments or studies within the possession of the
Companies with respect to the Companies' facilities or any Environmental Site
and the results of sampling and analysis of any asbestos, air, soil, or water,
including ground and surface water, undertaken with respect to its facilities or
any Environmental Site.
(m) Except as disclosed on SCHEDULE 5.17(m) hereto,
the Companies are in compliance with all federal and state worker safety laws
and requirements, including, but not limited to applicable requirements under
the Occupational Safety and Health Act.
5.18. GOVERNMENT AUTHORIZATIONS. Each of the Companies holds
all Government Authorizations which are required to own its properties and
assets and to permit it to conduct its businesses as presently conducted. All
such Government Authorizations are listed on SCHEDULE 5.18 hereto, together with
the applicable expiration date. All such Governmental Authorization are now,
and, will be at the Closing, valid and in full force and effect. Except as
described on SCHEDULE 5.18 hereto, Buyer shall have full benefit of the same. No
proceeding is pending or, to the knowledge of any of the Companies, threatened
seeking the revocation or limitations of any Government Authorization.
5.19. WARRANTY OR OTHER CLAIMS.
(a) Except as set forth on SCHEDULE 5.19(a), none of
the Companies knows of any existing or threatened claims, or any facts upon
which a claim is likely to be asserted against any of the Companies, for
services or merchandise which are defective or fail to meet any service or
product warranties. No claim has been asserted against any of the Companies for
material renegotiation or price redetermination of any business transaction, and
none of the Companies has knowledge of any facts upon which any such claim is
likely to be asserted.
(b) All products that were designed, manufactured or
sold and all services that were rendered by each of the Companies complied with
applicable contracts, product specifications, Laws and standards (whether
established by the Company, Governmental Authority or industry), and, to the
Companies' knowledge, there are no defects in such products. SCHEDULE 5.19(b)
sets forth each of the Companies' experience with returns of products sold by it
for the preceding fiscal year and for the portion of the current fiscal year
(including claims or
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notices that products may or will be returned, whether by reason of alleged
overshipments, defective merchandise or otherwise).
5.20. LITIGATION. Except for matters described in SCHEDULE
5.20 hereto, there is no action, suit, claim, proceeding, investigation or
arbitration proceeding pending (or, to the knowledge of any of the Infab
Companies, threatened) against or otherwise involving any of the Companies, the
Purchased Assets, the Infab Business, the Infab Shares, or any of the officers,
directors, former officers or directors, employees, shareholders or agents of
any of the Companies (in their capacities as such) and there are no outstanding
Court Orders to which the any of the Companies is a party or by which any of the
Purchased Assets are bound, any of which (i) question any of the Purchase
Agreements or any Ancillary Documents or any action to be taken hereby or
thereby or affect the transactions contemplated hereby, or (ii) materially
restrict the present business properties, operations, prospects, assets or
condition, financial or otherwise, of any of the Companies or the Infab Business
or (iii) will result in any materially adverse change in the business,
properties, operations, prospects, assets or the condition, financial or
otherwise, of any of the Companies or the Infab Business. None of the Infab
Companies has any reason to believe that any such action, suit, proceeding,
investigation or arbitration proceeding may be brought against any of the
Companies.
5.21. BORROWINGS AND GUARANTEES. Except as shown on SCHEDULE
5.21 hereto, there are no agreements or undertakings pursuant to which Infab
(Ireland) or Infab (Scotland) (a) is borrowing or is entitled to borrow any
money, (b) is lending or has committed itself to lend any money, or (c) is a
guarantor or surety with respect to the obligations of any Person. Complete and
accurate copies of all such written agreements have been delivered to Buyer and
are attached to SCHEDULE 5.21.
5.22. FINANCIAL SERVICE RELATIONS AND POWERS OF ATTORNEY. All
of the arrangements which Infab (Scotland) or Infab (Ireland) has with any bank,
depository institution or other financial services entity, whether or not in any
of such Companies' names, are completely and accurately described on SCHEDULE
5.22 hereto, indicating with respect to each of such arrangements the type of
arrangement maintained (such as checking account, borrowing arrangements, safe
deposit box, etc.) and the current balance as of the date reported, banking
institution and person or persons authorized in respect thereof. None of Infab
(Scotland) or Infab (Ireland) has any outstanding power of attorney.
5.23. INSURANCE.
(a) Each of Infab (Scotland) and Infab (Ireland)
maintains (i) insurance on all of its property (including leased or owned real
or personal property) that insures against loss or damage by fire or other
casualty (including extended coverage) and (ii) insurance against liabilities,
claims and risks of a nature and in such amounts as are normal and customary in
its industry.
(b) SCHEDULE 5.23 contains a complete and correct
list of all policies of insurance maintained by or on behalf of each of Infab
(Scotland) and Infab (Ireland) (including insurance providing benefits for
employees) in effect on the date hereof, together with complete
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and correct information with respect to the premiums, coverages, insurers,
expiration dates, and deductibles in respect of such policies. The policies
listed on SCHEDULE 5.23 provide sufficient coverage to enable Infab (Scotland)
and Infab (Ireland) to comply with all requirements of Law and all agreements to
which any of them is subject, (ii) and will remain in full force and effect in
favor of Buyer through the respective expiration dates of such policies without
the payment of additional premiums, and (iii) will not be adversely affected by,
or terminate or lapse by reason of, the transactions contemplated by this
Agreement. SCHEDULE 5.23 also sets forth all other insurance policies in effect
at any time during the last two full fiscal years and the current fiscal year,
under which either Infab (Scotland) or Infab (Ireland) may currently be entitled
to give notice or otherwise assert a claim.
(c) Except for amounts deductible under the policies
of insurance described on SCHEDULE 5.23 or with respect to risks assumed as a
self-insurer and described on such Schedule, neither Infab (Scotland) nor Infab
(Ireland) is, nor have any of such Companies at any time been, subject to any
liability as a self-insurer of the business or assets of any of such Companies.
(d) Except as set forth on SCHEDULE 5.23, there are
no claims pending under any of said policies, or disputes with insurers, and all
premiums due and payable thereunder have been paid, and all such policies are in
full force and effect in accordance with their respective terms. SCHEDULE 5.23
also sets forth the insurance claims expenses of Infab (Scotland) and Infab
(Ireland) for the last two full fiscal years and the current fiscal year. No
notice of cancellation or termination has been received with respect to any such
policy and there is no basis upon which the insurance company would have the
right to terminate any such policy during the policy term and no notice relating
to non-renewal, reduction of coverage or increase in premium has been received
by any such Company with respect to any such policy. Neither Infab (Scotland)
nor Infab (Ireland) has been refused any insurance, nor has its coverage been
limited by any insurance carrier with which it has applied for any such
insurance or with which it has carried insurance. Neither Infab (Scotland) nor
Infab (Ireland) has knowledge of any insurance carrier's insolvency or inability
to perform its obligations or pay any claims pursuant to any of the insurance
policies maintained by any of such Companies.
(e) Except as set forth on SCHEDULE 5.23, neither
Infab (Scotland) nor Infab (Ireland) has a current or prior insurance policy
which remains subject to a retrospective adjustment of the premiums payable
thereunder.
5.24. CORPORATE BOOKS, RECORDS AND ACCOUNTS.
(a) The minute books and stock records of Infab
(Scotland) and Infab (Ireland) accurately record all action taken by the
shareholders, board of directors and committees thereof of Infab (Scotland) and
Infab (Ireland) and all issuances and transfers of capital stock of Infab
(Scotland) and Infab (Ireland). Complete and accurate copies of all minute books
and stock records of Infab (Scotland) and Infab (Ireland) have been delivered to
or made available for inspection by Buyer.
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(b) The books, records and accounts of the Infab
Business fairly and accurately reflect transactions and dispositions of assets
by the Infab Business, and the system of internal accounting controls of the
Infab Business is sufficient to assure that: (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with German GAAP and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
5.25. FINDER'S FEE. None of the Infab Companies nor Jenoptik
has incurred or become liable for any broker's commission or finder's fee
relating to or in connection with the transactions contemplated by this
Agreement.
5.26. TRANSACTIONS WITH INTERESTED PERSONS. Except as set
forth on SCHEDULE 5.26, to the Companies' knowledge, no officer, supervisory
employees or director of any of the Infab Companies or Jenoptik, or their
respective spouses or children, owns, directly or indirectly, on an individual
or joint basis, any interest in, or serves as an officer or director of, any
customer, competitor or supplier of any of the Companies, or any organization
which has a contract or arrangement (written or oral) with any Company. Any
arrangements described on SCHEDULE 5.26 are on arms-length terms.
5.27. ABSENCE OF SENSITIVE PAYMENTS. None of the Companies
has, nor to the knowledge of any of the Infab Companies or Jenoptik has any of
the Companies' directors, officers, agents, stockholders or employees or any
other person associated with or acting on behalf of any of the Companies:
(a) made or agreed to make any solicitations,
contributions, payments or gifts of funds or property to any governmental
official, employee or agent where either the payment or the purpose of such
solicitation, contribution, payment or gift was or is illegal under the Laws of
any applicable jurisdiction or prohibited by the policy of any of the Companies
or of any of its suppliers or customers;
(b) established or maintained any unrecorded fund or
asset for any purpose, or has made any false or artificial entries on any of its
books or records for any reason; or
(c) made or agreed to make any contribution or
expenditure, or reimbursed any political gift or contribution or expenditure
made by any other person to candidates for public office, whether national,
regional or local where such contributions were or would be a violation of
applicable Law.
5.28. YEAR 2000.
(a) The software, including, without limitation, the
business systems and products of each of the Companies described in SCHEDULE
5.28 attached hereto is designed to be
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used prior to, during, and after calendar year 2000 A.D. and such software will
operate during each such time period without error relating to data,
specifically including any error relating to data which represents or references
different centuries or more than one century. Without limiting the generality of
the foregoing, (i) the software of each of the Companies will not abnormally end
or provide invalid or incorrect results as a result of date data, and (ii) the
software of each of the Companies has been designed to ensure year 2000 A. D.
compatibility, including date data, century recognition, calculations which
accommodate same century and multicentury formulas and date values, and date
data interface values that reflect the century.
(b) The software of each of the Companies includes
"Year 2000 Capabilities." For purposes of this Agreement, "Year 2000
Capabilities" means the software (i) will manage and manipulate data involving
dates, including single century formulas and multicentury formulas, and will not
cause an abnormally ending scenario within the application or generate incorrect
values or invalid results involving such dates, (ii) provides that all
date-related users interface functionalities and data fields include the
indication of century, and (iii) provides that all date-related data interface
functionalities include the indication of century.
5.29. COPIES OF DOCUMENTS Complete and correct copies of any
underlying documents listed or described in this Article 5 or any Schedules
delivered pursuant to this Article, together with all amendments, renewals and
modifications related thereto, have been delivered to Buyer to the extent
requested by Buyer.
5.30. DISCLOSURE OF MATERIAL INFORMATION Neither this
Agreement, any other Purchase Agreement nor any Document Agreement, the
financial statements (including the footnotes thereto), any Schedule, any
exhibit, document or certificate delivered by or on behalf of any of the Infab
Companies pursuant hereto contains any untrue statement of a material fact, or
omits to state a material fact necessary to make the statements herein or
therein not misleading. To the knowledge of the Companies, there is no fact
which materially adversely affects the business or condition (financial or
otherwise), properties or operations of any of the Companies which has not been
set forth herein.
5.31. REGULATORY CORRESPONDENCE. Each of the Companies has
made available to the Buyer true and correct copies of any and all material
correspondence from or to any Governmental Authorities since January 1, 1998 to
the extent relevant to the Infab Business or the Purchased Assets.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to M+W as follows:
6.1. ORGANIZATION OF BUYER. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware with full power and authority to own, operate or lease its properties
and to conduct its business in the manner and in the places where such
properties are owned or leased or such business is conducted by it.
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6.2. AUTHORIZATION OF TRANSACTION. All necessary action,
corporate or otherwise, has been taken by Buyer to authorize the execution,
delivery and performance of each of the Purchase Agreements and the Ancillary
Documents to which it is a party, and each such agreement is the valid and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms.
6.3. NO CONFLICT OF TRANSACTION WITH OBLIGATIONS AND LAWS.
(a) Neither the execution, delivery or performance of
the Purchase Agreements and the Ancillary Documents to which it is a party, nor
the performance of the transactions contemplated hereby and thereby, will: (i)
constitute a breach or violation of the Buyer's Constituent Documents; (ii)
require any consent, approval or authorization of or declaration, filing or
registration with any person other than a Governmental Authority described in
paragraph (b) below; or (iii) conflict with or constitute (with or without the
passage of time or the giving of notice) a breach of, or default under any debt
instrument to which Buyer is a party, or give any person the right to accelerate
any indebtedness or terminate, modify or cancel any material right; (iv)
constitute (with or without the passage of time or giving of notice) a default
under or breach of any other material agreement, instrument or obligation to
which Buyer is a party or by which it or its assets are bound; or (v) result in
a violation of any Law or Court Order applicable Buyer or its business or
assets.
(b) the execution, delivery and performance of the
Purchase Agreements and the Ancillary Documents to which it is a party and the
transactions contemplated hereby and thereby by Buyer do not require the
consent, waiver, approval, authorization, exemption of or giving of notice by
Buyer to any Governmental Authority, except for those which may be required
under the Hart-Scott-Rodino Anti-Trust Improvements Act of 1976, as amended and
except for those provided for in this Agreement.
6.4. REPORTS AND FINANCIAL STATEMENTS. Buyer has previously
furnished to Jenoptik complete and accurate copies, as amended or supplemented,
of its (a) Annual Report on Form 10-K for the fiscal years 1998 and 1997, as
filed with the SEC, (b) proxy statements relating to all meetings of its
stockholders (whether annual or special) since January 1, 1997, and (c) all
other reports or registration statements, other than Registration Statements on
Form S-8, filed by Buyer with the SEC since January 1, 1997 (such annual
reports, proxy statements, registration statements and other filings, together
with any amendments or supplements thereto, are collectively referred herein as
the "Buyer Reports"). The Buyer Reports constitute all of the documents filed by
Buyer with the SEC since January 1, 1997, other than any Registration Statement
on Form S-8. As of their respective dates, the Buyer Reports did not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The consolidated
audited financial statements and consolidated unaudited interim financial
statements of Buyer included in the Buyer Reports (together, the "Buyer
Financial Statements") (i) comply as to form in all material respects with
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, (ii) have been prepared in accordance with US GAAP
applied on a consistent basis throughout the periods
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covered thereby (except a may be indicated by Form 10-Q under the Securities and
Exchange Act of 1934 and subject to normal recurring year-end adjustments),
(iii) fairly present the consolidated financial condition, results of operations
and cash flows of Buyer and each of its Subsidiaries as of the respective dates
thereof and for the periods referred to therein, and (iv) are consistent in all
material respects with the books and records of Buyer.
6.5. ABSENCE OF CERTAIN CHANGES. Since the date of the most
recent Form 10-Q included in the Buyer Reports, there has not been any change in
the financial condition, properties, assets, liabilities, business or operations
of the Buyer or any Subsidiary of Buyer which change by itself or in conjunction
with all other such changes, whether or not arising in the ordinary course of
business, has had a material adverse effect with respect to the Buyer and its
Subsidiaries taken as a whole.
6.6. CAPITALIZATION. All of the Purchase Shares will be, when
issued in accordance with this Agreement, duly authorized, validly issued, fully
paid, nonassessable and free of all preemptive rights. The authorized capital
stock of Buyer consists of 21,500,000 shares of Buyer Common Stock, of which, as
of August 18, 1999, 11,115,031 shares were validly issued and outstanding, fully
paid and nonassessable. Other than as set forth in SCHEDULE 6.6, as of that date
there were no outstanding warrants, options or other rights to purchase or
acquire, or preemptive rights with respect to the issuance or sale of, Buyer
Common Stock and no securities of Buyer or any Subsidiary directly or indirectly
convertible into or exchangeable for shares of capital stock of Buyer or any
Subsidiary. Each Purchase Share shall be accompanied by one Buyer Purchase
Right.
6.7. LABOR AND EMPLOYEE RELATIONS.
(a) Buyer has complied in all material respects with
all applicable Laws of each relevant jurisdiction relating to the employment of
labor, including without limitation those relating to dismissal, redundancy,
minimum notice, wages, hours, unfair labor practices, discrimination, civil
rights, plant closings, immigration and the collection and payment of social
security and similar taxes.
(b) There are no complaints, proceedings,
investigations or charges against Buyer pending or to Buyer's knowledge
threatened before any Governmental Authority in the United States or elsewhere,
by or on behalf of any employee or former employee of Buyer of which complaints,
proceedings, investigations or charges, if resolved adversely to Buyer would
have a material adverse effect with respect to the Buyer and its Subsidiaries
taken as a whole.
6.8. GOVERNMENT AUTHORIZATIONS. Buyer holds all Government
Authorizations which are required to own its properties and assets and to permit
it to conduct its businesses as presently conducted except where the failure to
hold such Government Authorizations would not have a material adverse effect
with respect to Buyer and its Subsidiaries taken as a whole.
6.9. LITIGATION. There is no action, suit, claim, proceeding,
investigation or arbitration proceeding pending (or, to the knowledge of Buyer,
threatened) against or otherwise involving Buyer or any of the officers,
directors, former officers or directors, employees,
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shareholders or agents of Buyer (in their capacities as such) and there are not
outstanding Court Orders to which Buyer is a party or by which any of the
Buyer's assets are bound, any of which (i) question any of the Purchase
Agreements or any Ancillary Documents or any action to be taken hereby or
thereby or affect the transactions contemplated hereby, or (ii) materially
restrict the present business, properties, operations, prospects, assets or
condition, financial or otherwise, of Buyer or (iii) will result in any
materially adverse change in the business, properties, operations, prospects,
assets or the condition, financial or otherwise, of Buyer.
6.10. FINDER'S FEE. Buyer has not incurred or become liable
for any broker's commission or finder's fee relating to or in connection with
the transactions contemplated by this Agreement.
6.11. ABSENCE OF SENSITIVE PAYMENTS. Buyer has not, and to the
knowledge of Buyer none of Buyer's directors, officers, agents, stockholders or
employees or any other person associated with or acting on behalf of Buyer has:
(a) made or agreed to make any solicitations,
contributions, payments or gifts of funds or property to any governmental
official, employee or agent where either the payment or the purpose of such
solicitation, contribution, payment or gift was or is illegal under the Laws of
any applicable jurisdiction or prohibited by the policy of Buyer or of any of
its suppliers or customers;
(b) established or maintained any unrecorded fund or
asset for any purpose, or has made any false or artificial entries on any of its
books or records for any reason; or
(c) made or agreed to make any contribution or
expenditure, or reimbursed any political gift or contribution or expenditure
made by any other person to candidates for public office, whether national,
regional or local where such contributions were or would be a violation of
applicable Law.
6.12. CORPORATE BOOKS, RECORDS AND ACCOUNTS.
(a) The minute books and stock records of Buyer
accurately record all action taken by the shareholders, board of directors and
committees thereof of Buyer and all issuances and transfers of capital stock of
Buyer. Complete and accurate copies of all minute books and stock records of
Buyer have been delivered to or made available for inspection by Buyer.
(b) The books, records and accounts of the Buyer
fairly and accurately reflect transactions and dispositions of assets by Buyer,
and the system of internal accounting controls of the Buyer is sufficient to
assure that: (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with US GAAP and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with
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the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
6.13. DISCLOSURE OF MATERIAL INFORMATION. Neither this
Agreement, any other Purchase Agreement nor any Ancillary Agreement, any
Schedule, any exhibit or certificate delivered by or on behalf of Buyer pursuant
hereto contains any untrue statement of a material fact, or omits to state a
material fact necessary to make the statements herein or therein not misleading.
ARTICLE VII. COVENANTS OF JENOPTIK AND THE INFAB COMPANIES
Jenoptik and each of the Infab Companies covenants and agrees with Buyer
as follows:
7.1. CONDUCT OF BUSINESS. Between the date of this Agreement
and the Closing, each of the Companies will do the following with respect to the
Infab Business unless Buyer shall otherwise consent in writing:
(a) conduct the Infab Business only in the ordinary
course consistent with past practice and refrain from changing or introducing
any method of management or operations for the Infab Business except in the
ordinary course and consistent with prior practices;
(b) except with respect to the sale of inventory in
the ordinary course of business, refrain from making any purchase, sale or
disposition of any Purchased Assets other than in the ordinary course of
business, from purchasing any capital asset costing more than $10,000 and from
mortgaging, pledging, subjecting to a Lien or otherwise encumbering any of the
Purchased Assets;
(c) refrain from incurring any contingent liability
as a guarantor or otherwise with respect to the obligations of others, and from
incurring any other contingent or fixed obligations or liabilities except those
that are usual and normal in the ordinary course of business;
(d) refrain from entering into any material
agreement, including without limitation any agreements with Tokyo Electronics
Corporation or Empac, Inc., or amending or terminating any material contract,
agreement or license to which it is a party or waiving or releasing any material
right or claim;
(e) maintain the Purchased Assets in good working
condition and repair according to the standards that it maintained to the date
of this Agreement, subject only to ordinary wear and tear;
(f) refrain from making any change or incurring any
obligation to make a change in the Constituent Documents of the Companies or the
authorized or issued capital stock or, if applicable, other securities,
including warrants and options, of Infab (Ireland) and Infab (Scotland);
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(g) refrain from declaring, setting aside or paying
any dividend or making any other distribution in respect of capital stock, or
making any direct or indirect redemption, purchase or other acquisition of
capital stock, of the Companies;
(h) refrain from entering into any employment
contract (other than as may be contemplated by this Agreement) or making any
change in the compensation payable or to become payable to any of the officers,
employees or agents of any of the Companies except for changes for
non-management personnel in the ordinary course of business consistent with past
practices;
(i) refrain from instituting, terminating, changing
or making any representations, either oral or written, to increase or change any
Employee Benefit Plan or adopting any new Employee Benefit Plan;
(j) withhold or turn over to taxing authorities all
employees all employment taxes;
(k) refrain from making any change in accounting
methods or practices;
(l) refrain from prepaying any loans from its
stockholders, officers or directors (if any) or making any change in its
borrowing arrangements;
(m) refrain from merging, consolidating or
reorganizing any of the Companies with, or having any of the Companies acquire,
any entity;
(n) refrain from agreeing to any audit assessment by
any taxing authority or filing any income or franchise tax return or amendment
thereto, unless copies of such tax returns have been delivered to the Buyer for
its review and approval prior to filing or from revoking any tax election or
making any agreement or settlement with any taxing authority;
(o) use its best efforts to prevent any change with
respect to its banking arrangements;
(p) use its best efforts to keep intact its business
organization, to keep available its present officers, agents and employees and
to preserve the goodwill of all suppliers, customers and others having business
relations with it;
(q) have in effect and maintain at all times all
insurance of the kind, in the amount and with the insurers set forth in SCHEDULE
5.23 or equivalent insurance with any substitute insurers approved by Buyer;
(r) perform all of its obligations under all
contracts and other agreements relating to each of the Companies, including the
discharge of all accounts payable of each of the Companies according to the
terms and conditions of all invoices therefore, except when the amount thereof
is being contested in good faith, by appropriate proceedings and with adequate
reserves therefore being set aside on the books of each of the Companies;
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(s) maintain true, correct and complete books of
accounts and records relating to the Infab Business;
(t) comply in all respects with all Laws applicable
to the conduct of the Infab Business and the Purchased Assets;
(u) promptly upon its knowledge thereof, advise Buyer
in writing of the termination or resignation of any key employee and the
circumstances therefore;
(v) refrain from entering into any contract or
commitment providing for payments in excess of $25,000 in any fiscal year,
except in the ordinary course of business after consultation with Buyer;
(w) pay all Taxes, assessments, governmental charges
or levies imposed upon it or its income, profits or assets, or otherwise
required to be paid by it, nor fail to pay when due any liability or charge that
if, unpaid, might become a Lien upon any of the Purchased Assets;
(x) promptly upon its knowledge thereof, advise Buyer
in writing of (i) any material adverse change in the financial condition or
assets or operations of the business of any of the Companies; (ii) any event,
condition or circumstance occurring from the date hereof until the Closing Date
that would constitute a violation or breach of any representation, warranty,
covenant, agreement or provision contained in any of the Purchase Agreements or
any of the Ancillary Documents (provided, however, that such disclosure shall
not be deemed to cure any violation or breach of any such representation,
warranty, covenant, agreement or provision), or (iii) any event, occurrence,
transaction or other item that would have been or required to have been
disclosed on any Schedule to any Purchase Agreement or any Ancillary Document,
delivered to Buyer, had such event, occurrence, transaction or item existed on
the date hereof; and
(y) not take or permit to be taken any action that is
represented or warranted in Section 5.7 not to have been taken since the Base
Balance Sheet Date.
7.2. ACCESS TO INFORMATION. Each party shall permit
representatives of the other to have access (at all reasonable times and in a
manner so as not to interfere with the normal business operations of the other
party) to all premises, properties, financial and accounting records, contracts,
other records and documents, and personnel of or pertaining to such party, all
in accordance with the terms of the letter agreement dated May 1999, executed by
each of Buyer and M+W, a copy of which is attached hereto as EXHIBIT A (the
"Confidentiality Agreement"); provided that (i) the representatives of M+W may
have the access to Buyer permitted hereunder only in order to conduct customary
due diligence regarding the completeness of the Buyer Reports and other
information set forth herein as M+W may reasonably request and (ii) the
representatives of Buyer may have the access to the Infab Companies permitted
hereunder only in order to conduct customary due diligence regarding the Infab
Business, Purchased Assets and other information set forth herein as Buyer may
reasonably request. No investigation or examination by either party shall
diminish, obviate or constitute a waiver of the enforcement of
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any of the representations, warranties, covenants or agreements of the other
party under the Purchase Agreements, or any of the Ancillary Documents.
7.3. GOVERNMENTAL PERMITS AND APPROVALS; CONSENTS. Each of the
Infab Companies shall use its best efforts (with the reasonable assistance of
Buyer to the extent required to obtain such approvals) to obtain promptly (i)
all Government Authorizations required to be obtained for the lawful
consummation of the Closing, (ii) the consents set forth or required to be set
forth on SCHEDULE 5.18 and (iii) documents in form and substance reasonably
satisfactory to Buyer from the lessors of the leased Real Property consistent
with local practice, indicating that the lessee company is not in default of the
lease.
7.4. ASSIGNMENT OF CONTRACTS. To the extent that the sale of
the Infab Shares or the Purchased Assets constitutes an assignment under the
terms of any contract to which any of the Companies is a party (including leases
for real property) or any Governmental Authorization which requires the consent
of another party, each Infab Company agrees to use its best efforts (with the
reasonable assistance of the Buyer to the extent necessary to obtain such
consents) to obtain the consent of such other party to an assignment in all
cases in which consent is required.
7.5. MAINTENANCE OF GOVERNMENT AUTHORIZATIONS. Each Infab
Company shall at all times prior to the Closing Date cause each of the Companies
to preserve and maintain each of the Government Authorizations free and clear of
all Liens. Jenoptik, M+W and M+W (US) shall not take any action or permit any of
the Companies to take any action which would cause any Governmental Authority to
institute proceedings regarding any of the Government Authorizations or take any
other action which would result in any of the Companies being in noncompliance
in any material respect with the requirements of any Governmental Authority
having jurisdiction thereof.
7.6. COLLECTION OF RECEIVABLES.
Between the date hereof and the Closing Date, each of the
Companies will use prudent practices in collection procedures in order to
collect the Receivables so as not to jeopardize Buyer's future customer
relations.
7.7. RISK OF LOSS. Legal title and risk of loss with respect
to the Purchased Assets and the Infab Business shall not pass to Buyer until the
Closing. Prior to the Closing Date, if any of the assets of any of the
Companies, including the Purchased Assets, are destroyed or damaged by fire or
other casualty, Buyer may, at its option, if the amount of such destruction or
damage is in excess of $3,000,000, terminate this Agreement. In the event that
Buyer elects not to terminate this Agreement, the amount of any insurance
proceeds shall not be taken into account in connection with the determination of
any adjustment to the purchase price.
7.8. EMPLOYEE/EMPLOYEE COMPENSATION.
(a) Jenoptik, M+W and M+W (US) agree to cause the
Companies to pay when due all compensation and benefits to any employee of any
Company under all pay and
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compensation practices and under any employment agreements applicable to the
Infab Business which are payable in the ordinary course of business.
(b) Each of the Companies shall use its best efforts
to retain up until the Closing those employees listed on SCHEDULE 7.8 attached
hereto ("Key Employees") and to cause the Key Employees to agree to accept
employment with Buyer following the Closing.
7.9. EMPLOYEE TERMINATION COSTS. No later than five business
days after the date hereof, Buyer will give notice to M+W of (a) those employees
of the Sellers which the Buyer does not wish to retain as employees after the
Closing, (b) those employees of Infab (Ireland) and Infab (Scotland) which it
does not wish to have as employees after the Closing and (c) those employees of
the Companies which it wishes to employ after Closing. Additionally, the Buyer
may within a period of 115 days after the Closing Date give notice to M+W of
those employees of the Companies who will be given notice of termination within
a period of 120 days after the Closing Date or whose employment relationship
will be terminated by a mutual severance agreement entered into no later than
120 days after the Closing Date (the employees referred to in this sentence and
in (a) and (b) hereinabove collectively referred to as the "Terminated
Employees"). Jenoptik and the Infab Companies shall, in their reasonable
discretion and in their own name or, where appropriate, on behalf of and in the
name of Buyer, take all necessary, appropriate and lawful steps to effect the
valid termination of the Terminated Employees. Jenoptik and the Infab Companies
shall begin terminating German-based employees in accordance with this Section
7.9 immediately upon receipt from Buyer of the notice referred to in Section
7.9(a) hereof. The Employee Termination Costs shall be borne by Buyer, as
between the parties, up to an aggregate amount of $2 million and any excess
Employee Termination Costs, as between the parties, shall be borne by Jenoptik
in each case pursuant to the procedures outlined in Article XI hereof with
respect to Buyer's Employee Termination Costs and Jenoptik Employee Termination
Costs.
7.10. BREACH OF REPRESENTATIONS AND WARRANTIES. Promptly upon
the occurrence of, or promptly upon Jenoptik or any Infab Company becoming aware
of the impending or threatened occurrence of, any event which would cause or
constitute a breach, or would have caused or constituted a breach had such event
occurred or been known to it prior to the date hereof, of any of the
representations and warranties of Jenoptik and the Infab Companies contained in
or referred to in this Agreement, such person shall give detailed written notice
thereof to Buyer and shall use its reasonable best efforts to prevent or
promptly remedy the same.
7.11. CONSUMMATION OF AGREEMENT. Each of Jenoptik, M+W and
M+W(US) shall use its reasonable best efforts to perform and fulfill, and to
cause each of the Companies to perform and fulfill, all conditions and
obligations on their part to be performed and fulfilled under this Agreement, to
the end that the transactions contemplated by this Agreement shall be fully
carried out. To this end, each of the Infab Companies will obtain all necessary
authorizations or approvals, including the stockholders and governing boards of
each of the Companies.
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7.12. EXCLUSIVITY. Jenoptik and each Infab Company shall not
and shall use its best efforts to cause each of its officers, directors,
employees, representatives and agents not to, directly or indirectly, (i)
encourage, solicit, initiate, engage (including by way of furnishing or
disclosing information) or participate in negotiations with any third person or
entity (other than the Buyer or its Affiliates) concerning any Acquisition
Transaction or (ii) negotiate or take any other action intended or designed to
facilitate the efforts of any third person or entity (other than Buyer or its
affiliates) relating to a possible Acquisition Transaction, or enter into any
agreements, arrangements or understanding requiring any Infab Company to
abandon, terminate or fail to consummate the transaction contemplated by this
Agreement.
7.13. CIMPLE. Jenoptik and M+W shall use their best efforts to
eliminate the minority ownership interests in Infab (Ireland) and Infab
(Scotland) in a manner reasonably satisfactory to Buyer.
7.14. DEFERRED REVENUES. Jenoptik shall pay to Buyer the full
amount of any invoices from Buyer for products provided or services performed by
Buyer under any Customer Contract for which Jenoptik or any Infab Company
previously received cash in the form of deferred revenue, customer deposit or
other prepayment. The invoice shall reflect Buyer's fully loaded costs of
providing the product or service for which Jenoptik or the Infab Company was
prepaid, plus 10%. Jenoptik shall pay Buyer within 30 days of its receipt of the
invoice. Jenoptik shall also reimburse Buyer for any refunds Buyer is required
to pay under any such Customer Contract to the extent of such applicable
deferred revenue, customer deposit or prepayment.
7.15. CHANGE OF NAME. Immediately following the Closing, each
of Sellers shall make an amendment to their respective Constituents Document and
make all filings and take all steps required in their respective jurisdictions
in order to change the name of each of the Sellers to a name which does not
include the word "Infab." In addition, in connection with the Closing, Infab
(USA) shall deliver to the Buyer a consent in form satisfactory to the Secretary
of State of the State of Delaware consenting to the use of the name "Infab" by
Buyer or any affiliate thereof.
7.16. EBNER STOLZ & PARTNER. Jenoptik shall cooperate in all
respects and shall use its best efforts to cause Ebner Stolz and Partner, the
auditors of the consolidated financial statements of the Infab Group, to
cooperate in the provision of the financial information referenced in Section
9.5 of this Agreement and in the provision of any accountant's consents
reasonably required by Buyer in connection with its filings with the United
States Securities and Exchange Commission.
ARTICLE VIII. COVENANTS OF BUYER
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8.1. REASONABLE BEST EFFORTS. Except as otherwise contemplated
herein, Buyer shall use reasonable best efforts to take all actions and to do
all things necessary, proper or advisable to consummate the Agreement and the
transactions contemplated by this Agreement, including but not limited to the
delivery of certificates reasonably requested in connection with any opinions to
be delivered hereunder.
8.2. NOTICES AND CONSENTS. Buyer shall use reasonable best
efforts to obtain, at its reasonable expense, all such waivers, permits,
consents, approvals or other authorizations from third parties and governmental
entities or authorities, and to effect all such registrations, filings and
notices with or to third parties and governmental entities or authorities, as
may be necessary or desirable in connection with the transactions contemplated
by this Agreement.
8.3. BREACH OF REPRESENTATIONS AND WARRANTIES. Promptly upon
the occurrence of, or promptly upon Buyer becoming aware of the impending or
threatened occurrence of, any event which would cause or constitute a breach, or
would have caused or constituted a breach had such event occurred or been known
to it prior to the date hereof, of any of the representations and warranties of
Buyer contained in or referred to in this Agreement, Buyer shall give detailed
written notice thereof to Jenoptik and shall use its reasonable best efforts to
prevent or promptly remedy the same.
8.4. LISTING OF PURCHASE SHARES. On or within 45 days after
the Closing, Buyer shall at its sole expense list the Purchase Shares on the
Nasdaq National Market and shall take all steps necessary to accomplish the
same.
ARTICLE IX. CONDITIONS TO OBLIGATIONS OF BUYER
The obligations of Buyer to consummate this Agreement and the transactions
contemplated hereby are subject to the condition that on or before the Closing
the actions required by this Article will have been accomplished.
9.1. DUE DILIGENCE REVIEW. Buyer shall have completed a review
of the assets and business of each of the Companies which is satisfactory to the
Buyer in its sole discretion in all respects. Such review shall include a review
of all of the financial files and records of each of the Companies, including,
without limitation, review of the financial information delivered pursuant to
Section 9.5 hereof, the financial budget of each of the Company for fiscal year
1999 and strategic plans for the next two fiscal years of each of the Companies,
any schedules to this Agreement or any Purchase Agreement, the business and
legal records and files of each of the Companies, including customer files,
correspondence, invoices, licenses and permits (provided that Buyer shall
refrain from contacting any customers or suppliers of any of the Companies
without the prior approval of M+W), full access to each of the Companies'
physical properties and appropriate personnel of each of the Companies, and all
written materials related to each of the Companies' Intellectual Property, all
of which shall be made available pursuant to Section 7.2 of this Agreement. In
addition, each of the Infab Companies shall make available to Buyer all
environmental files and records related to the Infab Business.
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9.2. REPRESENTATIONS; WARRANTEES; COVENANTS. Without giving
effect to any qualification of materiality (or any variation of such term)
contained in any representation or warranty, the representations and warranties
of Jenoptik and each Infab Company contained in Articles 4 and 5 hereof or
contained in the Purchase Agreements or the Ancillary Documents, individually or
in the aggregate, shall be true and correct in all material respects as though
made on and as of the Closing Date and each of Jenoptik and the Infab Companies
shall, on or before the Closing have performed all of their obligations
hereunder and under the Purchase Agreements and Ancillary Documents which by the
terms hereof and thereof are to be performed by them on or before the Closing.
9.3. RESIGNATIONS OF OFFICERS AND DIRECTORS. Jenoptik shall
have delivered to Buyer, at least fifteen (15) business days prior to Closing, a
complete and correct list of all of the officers and directors of Infab
(Scotland) and Infab (Ireland), and Buyer shall have received the written
resignations of such of the officers and directors of Infab (Scotland) and Infab
(Ireland) as Buyer shall have designated at least ten (10) business days before
Closing, which resignations will be effective no later than the Closing.
9.4. LIEN TERMINATIONS. Buyer shall have received proper
evidence of the termination of all security interests in, or other Liens upon
the Purchased Assets.
9.5. DELIVERY OF FINANCIAL INFORMATION. In addition to the
financial statements delivered under Section 5.5 above, the Companies, at their
own cost, shall have delivered to Buyer historical financial statements and any
other financial information with respect to the Infab Business required by Item
7 of Form 8-K and Regulation S-X of the Securities and Exchange Commission for a
business acquisition required to be described in answer to Item 2 of Form 8-K,
including information required in order for Buyer to prepare the pro forma
financial information required by Item 7 of Form 8-K. The financial statements
shall include, without limitation:
(i) Audited Consolidated Balance Sheets as
of December 31, 1997 and December 31, 1998 and audited Consolidated Statements
of Operations and Cash Flows for the three years ending December 31, 1998 for
the Infab Business; and
(ii) Unaudited Consolidated Balance Sheet as
of June 30, 1999 and unaudited Consolidated Statements of Operations and Cash
Flows for the six months ending June 30, 1999 for the Infab Business.
The audit reports included with these financial statements shall not be
qualified or subject to modification.
9.6. PURCHASE AGREEMENTS. The Purchase Agreements with Infab
(Germany) and with Infab (US) with terms mutually satisfactory to Jenoptik and
Buyer shall have been executed and delivered.
9.7. CERTAIN ANCILLARY DOCUMENTS. Each of the Infab Companies
a party thereto shall have entered into the following agreements:
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(a) the Stockholder Agreement relating to the terms
upon which the Purchase Shares shall be held and may be transferred by M+W and
certain other matters substantially in the form of EXHIBIT D hereto.
(b) the Transitional Services Agreement relating to
the provision of certain support services by Jenoptik on a transitional basis
with terms mutually satisfactory to Jenoptik and Buyer.
(c) Jenoptik and M+W shall have entered into the
Jenoptik Noncompetition Agreement with Buyer substantially in the form of
EXHIBIT F hereto.
9.8. EMPLOYEE NONCOMPETITION AGREEMENTS. Each of the persons
listed on SCHEDULE 7.8 hereto shall have executed and delivered to Buyer a
Noncompetition and Proprietary Information Agreement with terms mutually
satisfactory to Jenoptik and Buyer.
9.9. REAL PROPERTY LEASES. Buyer shall have received from the
landlord of the Colorado Lease the documents contemplated by Section 7.3. In
addition, the appropriate Infab Companies shall have assigned Buyer the Colorado
Lease.
9.10. GOVERNMENTAL CONSENTS AND APPROVALS; AUTHORIZATION FROM
OTHERS; TERMINATION OR EXPIRATION OF WAITING PERIOD. All Government
Authorization required in order to permit Jenoptik and the Infab Companies to
complete the transactions in compliance with all applicable laws, rules and
regulations shall have been received by Jenoptik and the Infab Companies. All
additional consents and permits of others required to permit Jenoptik and the
Infab Companies to complete the transaction including, without limitation, those
listed on SCHEDULE 5.12(f), shall have been received by Jenoptik and the Infab
Companies. The applicable waiting period under the United States
Hart-Scott-Rodino Act and any other laws applicable to this transaction shall
have been terminated or shall have expired without a request for further
information under the Hart-Scott-Rodino Act, or in the event of such a request
for further information, the waiting period following delivery of such
information shall have expired without the objection of either the Federal Trade
Commission or the U.S. Justice Department or any other governmental authority.
9.11. ABSENCE OF CERTAIN LITIGATION. There shall not be any
(a) injunction, restraining order or order of any nature issued by any court of
competent jurisdiction which directs that this Agreement or any material
transaction contemplated hereby shall not be consummated as herein provided, (b)
suit, action or other proceeding by any federal, state, local or foreign
government (or any agency thereof) pending before any court or governmental
agency, or threatened to be filed or initiated, wherein such complainant seeks
the restraint or prohibition of the consummation of any material transaction
contemplated by this Agreement or asserts the illegality thereof or (c) suit,
action or other proceeding by a private party pending before any court or
governmental agency, or threatened to be filed or initiated, which in the
reasonable opinion of counsel for Buyer is likely to result in the restraint or
prohibition of the consummation of any material transaction contemplated hereby
or the obtaining of an amount in payment (or indemnification) of material
damages from or other material relief against any of the parties or
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against any directors or officers of Buyer, in connection with the consummation
of any material transaction contemplated hereby.
9.12. NO BANKRUPTCY. None of the Infab Companies or Jenoptik
shall (i) have commenced a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or substantially all of its property, or have
consented to any such relief or to the appointment of or taking possession by
any such official in an involuntary case or other proceeding commenced against
it, or have made a general assignment for the benefit of its creditors, or (ii)
have an involuntary case or other proceeding commenced against it seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereinafter in
effect or seeking the appointing of a trustee, receiver, liquidator, custodian
or similar official of it or substantially all of its property or (iii) have an
attachment placed on all or a significant portion of its assets.
9.13. RESOLUTION OF MINORITY OWNERSHIP. Either: (a) Jenoptik
and M+W shall have eliminated the minority ownership interests in Infab
(Ireland) and Infab (Scotland) in a manner reasonably satisfactory to Buyer; or
(b) Jenoptik, Infab (Ireland), Infab (Scotland) and Buyer shall have entered
into a mutually satisfactory license agreement. The license agreement, among
other things, shall grant Buyer an exclusive, worldwide, perpetual, fully paid
up license to market, sell, offer for sale, modify, integrate or otherwise use
all the software (including source code), products, technology and other
intellectual property rights of Infab (Ireland) and Infab (Scotland). In
addition, in connection with the license agreement: (i) Buyer shall have the
right to hire any or all the employees of Infab (Ireland) or Infab (Scotland),
(ii) all the software (including source code), products, technology and other
intellectual property rights associated with the license will be deposited in a
mutually acceptable escrow and (iii) Infab (Ireland) and Infab (Scotland) shall
transfer all of their computer equipment and related office furniture to Buyer.
In the event the parties enter into the license agreement, all references to
Infab (Ireland) and Infab (Scotland) in the Master Purchase Agreement shall
effectively be deleted. However, the provisions of Article XI pursuant to which
Jenoptik shall indemnify Buyer for any Infab Share Liability shall remain in
full force and effect. If within three years after the license agreement is
executed and delivered, Jenoptik acquires the minority ownership interests in
Infab (Ireland) and Infab (Scotland), Jenoptik shall deliver notice thereof to
Buyer in accordance with Section 13.3. Buyer may, in its discretion, require
that Jenoptik assign all its interest in Infab (Ireland) and Infab (Scotland) to
Buyer for no consideration within 30 days of receipt of such notice (the
"Call"). Expenses and taxes relating to the Call shall be borne by the parties
in a manner consistent with this Agreement.
9.14. OPINION OF COUNSEL FOR JENOPTIK, AND M+W
(a) At the Closing, Buyer shall have received from
counsel for Jenoptik and M+ W, an opinion dated as of the Closing, substantially
in the form set forth as EXHIBIT H hereto.
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(b) In rendering the foregoing opinion such counsel
may state their opinions on specific matters of fact to the best of their
knowledge and, to the extent they deem such reliance proper, may rely on (i)
certificates of public officials, (ii) certificates, in form and substance
satisfactory to Buyer and its counsel, of officers of each of Jenoptik, M+W and
M+W (US), and (iii) an opinion or opinions of other counsel satisfactory to
Buyer and its counsel, which opinions are in form and substance satisfactory to
Buyer and its counsel. In the event such counsel rely upon any such certificate
or opinion, a counterpart of each thereof shall be delivered to Buyer and its
counsel.
9.15. OPINION OF SELLERS' COUNSEL.
(a) At the Closing, Buyer shall have received from
counsel for each of the Sellers, an opinion dated as of the Closing,
substantially in the form set forth as EXHIBIT I hereto. The opinion with
respect to Infab (USA) shall include an opinion from Gray Cary Ware Freidenrich
LLP in form reasonably satisfactory to Buyer that the Agreement listed on
Schedule 5.12(f)(1) is assignable to Buyer without the consent of third parties.
(b) In rendering the foregoing opinion such counsel
may state their opinions on specific matters of fact to the best of their
knowledge and, to the extent they deem such reliance proper, may rely on (i)
certificates of public officials, (ii) certificates, in form and substance
satisfactory to Buyer and its counsel, of officers of any member of the Infab
Group or its affiliates, and (iii) an opinion or opinions of other counsel
satisfactory to Buyer and its counsel, which opinions are in form and substance
satisfactory to Buyer and its counsel. In the event such counsel rely upon any
such certificate or opinion, a counterpart of each thereof shall be delivered to
Buyer and its counsel.
9.16. OPINION OF COUNSEL FOR EACH OF INFAB (SCOTLAND) AND
INFAB (IRELAND).
(a) At the Closing, Buyer shall have received from
counsel for each of Infab (Scotland) and Infab (Ireland), an opinion dated as of
the Closing, substantially in the form set forth as EXHIBIT J hereto.
(b) In rendering the foregoing opinion such counsel
may, state their opinions on specific matters of fact to the best of their
knowledge and, to the extent they deem such reliance proper, may rely on (i)
certificates of public officials, (ii) certificates, in form and substance
satisfactory to Buyer and its counsel, of officers of Infab (Scotland) or Infab
(Ireland) , and (iii) an opinion or opinions of other counsel satisfactory to
Buyer and its counsel, which opinions are in form and substance satisfactory to
Buyer and its counsel. In the event such counsel rely upon any such certificate
or opinion, a counterpart of each thereof shall be delivered to Buyer and its
counsel.
9.17. FAIRNESS OPINION. Buyer's Board of Directors shall have
received a written opinion from Merrill Lynch, dated as of or prior to the
Closing Date to the effect that as of the date of such opinion the Aggregate
Consideration is fair, from a financial point of view, to Buyer's shareholders
and shall have delivered to the Buyer a copy of such opinion.
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9.18. PAYMENT OF INDEBTEDNESS. Infab (Ireland) and Infab
(Scotland) shall pay in full the principal of and interest and premium, if any,
on all indebtedness for borrowed money including, without limitation, the loan
from Infab (Germany) in the principal of $2,500,000, incurred or assumed by
either of them on or before the Closing Date. Such Companies shall have provided
Buyer with written evidence of the payoff and full satisfaction of all such
indebtedness for borrowed money.
ARTICLE X. CONDITIONS TO OBLIGATIONS OF JENOPTIK AND THE INFAB
COMPANIES
The obligations of Jenoptik and the Infab Companies to consummate this
Agreement and the transactions contemplated hereby are subject to the condition
that on or before the Closing the actions required by this Article will have
been accomplished.
10.1. REPRESENTATIONS; WARRANTEES; COVENANTS. Without giving
effect to any qualification of materiality (or any variation of such term)
contained in any representation or warranty, the representations and warranties
of Buyer contained in Article 6, contained in the Purchase Agreements and
contained in the Ancillary Documents, individually or in the aggregate, shall be
true and correct in all material respects as though made on and as of the
Closing Date and Buyer shall, on or before the Closing have performed all of its
obligations hereunder and under the Purchase Agreements and Ancillary Documents
which by the terms hereof and thereof are to be performed by it on or before the
Closing.
10.2. GOVERNMENTAL CONSENTS AND APPROVALS; TERMINATION OR
EXPIRATION OF HSR WAITING PERIOD. All Governmental Authorizations required in
order to permit Buyer to complete the transactions in compliance with all
applicable laws, rules and regulations shall have been received by Buyer. The
applicable waiting period under the Hart-Scott-Rodino Act and any other laws
applicable to this transaction shall have been terminated or shall have expired
without a request for further information under the Hart-Scott-Rodino Act and
any other laws applicable to this transaction, or in the event of such a request
for further information, the waiting period following delivery of such
information shall have expired without the objection of either the Federal Trade
Commission or the U.S. Justice Department.
10.3. ABSENCE OF CERTAIN LITIGATION. There shall not be any
(a) injunction, restraining order or order of any nature issued by any court of
competent jurisdiction which directs that this Agreement or any material
transaction contemplated hereby shall not be consummated as herein provided, (b)
suit, action or other proceeding by any federal, state, local or foreign
government (or any agency thereof) pending before any court or governmental
agency, or threatened to be filed or initiated, wherein such complainant seeks
the restraint or prohibition of the consummation of any material transaction
contemplated by this Agreement or asserts the illegality thereof or (c) suit,
action or other proceeding by a private party pending before any court or
governmental agency, or threatened to be filed or initiated, which in the
reasonable opinion of counsel for Jenoptik is likely to result in the restraint
or prohibition of the consummation of any material transaction contemplated
hereby or the obtaining of an amount in payment (or indemnification) of material
damages from or other material relief against any of the
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parties or against any directors or officers of Buyer, in connection with the
consummation of any material transaction contemplated hereby.
10.4. NO BANKRUPTCY. Buyer shall not (i) have commenced a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
substantially all of its property, or have consented to any such relief or to
the appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or have made a general assignment
for the benefit of its creditors, or (ii) have an involuntary case or other
proceeding commenced against it seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereinafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or similar official of it or
substantially all of its property or (iii) have an attachment placed on all or a
significant portion of its assets.
10.5. OPINION OF BUYER'S COUNSEL.
(a) At the Closing, Jenoptik and each of the Infab
Companies shall have received from Brown, Rudnick, Freed & Gesmer, counsel for
Buyer, an opinion dated as of the Closing, substantially in the form of EXHIBIT
K hereto.
(b) In rendering said opinion, such counsel may state
their opinions on specific matters of fact to the best of their knowledge and,
to the extent they deem such reliance proper, may rely on (i) certificates of
public officials, (ii) certificates, in form and substance satisfactory to
Jenoptik and its counsel, of officers of Buyer, and (iii) an opinion or opinions
in form and substance satisfactory to Jenoptik and its counsel, of other counsel
satisfactory to Jenoptik and its counsel. In the event such counsel for Buyer
rely upon any such certificate or opinion, a counterpart of each thereof shall
be delivered to Jenoptik and its counsel.
ARTICLE XI. INDEMNIFICATION
11.1. INDEMNIFICATION BY JENOPTIK.
(a) Subject to the limitations in paragraph (b)
below, Jenoptik, shall defend, indemnify and hold harmless Buyer's Indemnified
Persons from and against all Losses directly or indirectly incurred by or sought
to be imposed upon any of them and whether or not caused by negligence or
willful act:
(i) resulting from or arising out of any
breach of any of the representations or warranties (other than those in Sections
4.2, 5.2, 5.10, 5.11, the first sentence of 5.15(e), any of the last five
sentences of Section 5.12(f) and, solely to the extent relating to title,
Sections 4.1, 5.9 and 5.12) made by Jenoptik or any Infab Company in or pursuant
to this Agreement, any other Purchase Agreement or in any agreement, document or
instrument executed and delivered pursuant hereto or thereto in connection with
the Closing;
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(ii) resulting from or arising out of any
breach of any of the representations or warranties made by Jenoptik or any Infab
Company pursuant to Sections 4.2, 5.2 and, solely to the extent related to
title, Sections 4.1, 5.9 and 5.12;
(iii) resulting from or arising out of any
breach of the representations and warranties set forth in Sections 5.10 and
5.11;
(iv) resulting from or arising out of any
breach of any covenant or agreement made by Jenoptik or any Infab Company in or
pursuant to this Agreement or any other Purchase Agreement;
(v) in respect of any Retained Liability,
including without limitation, any liability with respect to Asyst or any
Employee Benefit Plan liability, or any Infab Share Liability other than an
Assumed Infab Share Liability, or resulting from or arising out of any breach of
the representation in the first sentence of Section 5.15(e) or any breach of any
of the last five sentences of Section 5.12(f);
(vi) resulting from or arising out of any
liability, payment or obligation arising out of any litigation or similar matter
required to be described on SCHEDULE 5.20;
(vii) resulting from or arising out of the
intentional misrepresentation or breach of warranty of Jenoptik or any Infab
Company or any intentional failure of any of them to perform or comply with any
of their respective covenants or agreements;
(viii) resulting from or arising out of any
liability, payment or obligation in respect of any Taxes owing by any of the
Sellers, by Infab (Ireland) or Infab (Scotland) or Buyer, as successor to any
Company, of any kind or description (including interest and penalties with
respect thereto) for all periods, or portions thereof, up to and including the
Closing Date;
(ix) resulting from or arising out of any
third party action, whether by a Governmental Authority or other third party for
damages, including fines or penalties, or clean-up costs or other compliance
costs under any Environmental Law or from the violation of any Environmental Law
arising out of the operations of any of the Companies on or before the Closing
Date;
(x) resulting from or arising out of any
Jenoptik Employment Termination Cost; or
(xi) resulting from or arising out of any
Third Party Action (including a binding arbitration or an audit by any taxing
authority), that it is instituted or threatened against any of Buyer's
Indemnified Persons.
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(b) The right to indemnification under paragraph (a)
is subject to the following limitations:
(i) Jenoptik shall have no liability under
paragraph (a) unless one or more of the Buyer's Indemnified Persons gives
written notice to Jenoptik asserting a claim for Losses, including reasonably
detailed facts and circumstances pertaining thereto, before the expiration of
the period set forth below:
(1) for claims under clauses (i),
(ii), (iii), (iv), (vi), (ix) and (xi) (insofar as a claim under clause
(xi) relates to any matter included under clause (i), (ii), (iii),
(iv), (vi) or (ix)) of paragraph (a) above, a period of one (1) year
from the Closing Date;
(2) for claims under clauses (viii)
and (xi) (insofar as a claim under clause (xi) relates to any matter
included under clause (viii)) of paragraph (a) above, for so long as
any claim may be made in respect of such matters under any applicable
statute of limitations, as it may be extended; and
(3) for claims under clauses (v),
(vii) and (x) of paragraph (a) above, without limitation as to time.
(ii) Indemnification for claims under
paragraph (a) above (other than under clauses (a)(ii), (iii), (iv), (v), (vii),
(viii), (ix), (x) and (xi) (insofar as the claim relates to any matter included
under clause (a)(ii), (iii), (iv), (v), (vii) (viii), (ix) or (x)) shall be
payable by Jenoptik only if the aggregate amount of all Losses hereunder by
Buyer's Indemnified Persons shall exceed Two Hundred Fifty Thousand Dollars
($250,000) (the "Basket"), at which point Jenoptik shall be responsible for all
Losses, including the Basket. Jenoptik's aggregate liability for indemnification
under paragraph (a) above (other than under clauses (a)(ii), (iii), (iv), (v),
(vii), (viii), (ix) and (xi) (insofar as the claim relates to any matter
included under clause (a)(ii), (iii) (iv), (v), (vii), (viii) or (ix) ) shall
not exceed the total purchase price.
(iii) At its option, Jenoptik may repurchase
from Buyer, for an amount equal to the unpaid balance thereof, all or any part
of the accounts receivable included in the Purchased Assets which are subject to
any claims for Losses under clause (iii) of paragraph (a) above. Upon payment by
Jenoptik of any claims for Losses with respect to any account receivable under
clause (iii) of paragraph (a) above, Buyer shall concurrently therewith assign
such account receivable to Jenoptik free and clear of any Liens.
(iv) At its option, Jenoptik may repurchase
from Buyer, for an amount equal to the value reflected in the Closing Balance
Sheet, all or any part of the inventory included in the Purchased Assets which
is subject to any claims for Losses under clause (iii) of paragraph (a) above.
Upon payment by Jenoptik for any claim for Losses with respect to any
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inventory under clause (iii) of paragraph (a) above, Buyer shall concurrently
therewith assign such inventory to Jenoptik free and clear of any Liens.
(v) The gross amount with respect to a claim
for indemnification for which Jenoptik may be liable to a Buyer's Indemnified
Person pursuant to this Article 11 shall be reduced by any insurance proceeds
actually recovered by or on behalf of the Indemnified Person on account of the
indemnifiable Loss.
11.2. INDEMNIFICATION BY BUYER.
(a) Subject to the limitations in paragraph (b)
below, from and after the Closing Date, Buyer shall indemnify and hold harmless
Jenoptik's Indemnified Persons from any and all Losses directly or indirectly
incurred by or sought to be imposed upon them and regardless of whether or not
caused by negligence or willful act:
(i) resulting from or arising out of any
breach of any of the representations or warranties made by Buyer, in or pursuant
to this Agreement or in any agreement, document or instrument executed and
delivered pursuant hereto or in connection with the Closing;
(ii) resulting from or arising out of any
breach of any covenant or agreement made by Buyer in or pursuant to this
Agreement or any Purchase Agreement;
(iii) resulting from or arising out of
Buyer's fraud;
(iv) in respect of any Assumed Liability or
Assumed Infab Share Liability; or
(v) resulting from or arising out of Buyer's
Employment Termination Costs.
(b) Buyer shall have no liability under paragraph (a)
above unless a Jenoptik's Indemnified Person gives written notice to Buyer
asserting a claim for Losses, including reasonably detailed facts and
circumstances pertaining thereto, before the expiration of the period set forth
below:
(i) for claims under clauses (i) and (ii) of
paragraph (a) above, one (1) year from the Closing Date; and
(ii) for claims under clauses (iii), (iv)
and (v) of paragraph (a) above, without limitation as to time.
(c) Indemnification for claims under clauses (i) and
(ii) above shall be payable by Buyer only if the aggregate amount of all Losses
hereunder by Jenoptik's Indemnified Persons shall exceed Two Hundred Fifty
Thousand Dollars ($250,000) (the "Buyer's Basket"), at which point Buyer shall
be responsible for all losses including the Buyer's Basket. Buyer's aggregate
liability for indemnification under paragraph (a) above (other than
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clauses (a)(iii), (a)(iv) or (a)(v)) shall not exceed the total purchase price.
Buyer's aggregate liability for indemnification under clause (a)(v) above shall
not exceed Two Million Dollars ($2,000,000).
11.3. DEFENSE OF THIRD PARTY ACTIONS.
(a) Promptly after receipt of notice of any Third
Party Action, any person who believes he, she or it may be an Indemnified Person
will give notice to the potential Indemnifying Person of such action. The
omission to give such notice to the Indemnifying Person will not relieve the
Indemnifying Person of any liability hereunder unless it was prejudiced thereby,
nor will it relieve it of any liability which it may have other than under this
Article.
(b) Upon receipt of a notice of a Third Party Action,
the Indemnifying Person shall have the right, at its option and at its own
expense, to participate in and be present at the defense of such Third Party
Action, but not to control the defense, negotiation or settlement thereof, which
control shall remain with the Indemnified Person, unless the Indemnifying Person
makes the election provided in paragraph (c) below.
(c) By written notice within forty-five (45) days
after receipt of a notice of a Third Party Action, an Indemnifying Person may
elect to assume control of the defense, negotiation and settlement thereof, with
counsel reasonably satisfactory to the Indemnified Person; provided, however,
that the Indemnifying Person agrees (i) to promptly indemnify the Indemnified
Person for its expenses to date, and (ii) to hold the Indemnified Person
harmless from and against any and all Losses caused by or arising out of any
settlement of the Third Party Action approved by the Indemnifying Person or any
judgment in connection with that Third Party Action. The Indemnifying Persons
shall not in the defense of the Third Party Action enter into any settlement
which does not include as a term thereof the giving by the third party claimant
of an unconditional release of the Indemnified Person, or consent to entry of
any judgment except with the consent of the Indemnified Person.
(d) Upon assumption of control of the defense of a
Third Party Action under paragraph (c) above, the Indemnifying Person will not
be liable to the Indemnified Person hereunder for any legal or other expenses
subsequently incurred in connection with the defense of the Third Party Action,
other than reasonable expenses of investigation.
(e) If the Indemnifying Person does not elect to
control the defense of a Third Party Action under paragraph (c), the
Indemnifying Person shall promptly reimburse the Indemnified Person for expenses
incurred by the Indemnified Person in connection with defense of such Third
Party Action, as and when the same shall be incurred by the Indemnified Person.
(f) Any person who had the right hereunder but did
not assumed control of the defense of any Third Party Action shall have the duty
to cooperate with the party which assumed such defense.
11.4. MISCELLANEOUS.
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(a) Buyer's Indemnified Persons shall be entitled to
indemnification under Section 11.1(a) and Sellers' Indemnified Persons shall be
entitled to indemnification under Section 11.2(a), regardless of whether the
matter giving rise to the applicable liability, payment, obligation or expense
may have been previously disclosed to any such person, unless expressly assumed
on the particular Schedule.
(b) If any Loss is recoverable under more than one
provision hereof, the Indemnified Person shall be entitled to assert a claim for
such Loss until the expiration of the longest period of time within which to
assert a claim for Loss under any of the provisions which are applicable.
(c) Buyer may, at its options, recover any amount
owing by Jenoptik for indemnification hereunder by setoff against any amounts
that may otherwise be due from the Buyer to Jenoptik, M+W, M+W(US) or the
Sellers, or any of them, whether hereunder or otherwise; provided that Buyer
shall not be required to recover such claims in such manner and may proceed
against the Indemnified Party at any time or times for recovery of
indemnification claims.
11.5. PAYMENT OF INDEMNIFICATION. Claims for indemnification
under this Article shall be paid or otherwise satisfied by Indemnifying Persons
within thirty (30) days after notice thereof is given by the Indemnified Person,
provided however, that if such Claims are capable of being cured, such Claims
shall not have been cured within 30 days after notice thereof has been given by
the Indemnified Person.
ARTICLE XII. TERMINATION OF AGREEMENT
12.1. TERMINATION. In connection with the structure of the
transactions as described in this Agreement, the parties have agreed that this
Agreement shall not be terminated, except in accordance with the provisions of
this Article XII, all strictly construed against the Party seeking such
termination. This Agreement may be terminated any time prior to the Closing:
(a) by mutual written consent of the Parties; or
(b) by either the Buyer or by M+W (on behalf of
Jenoptik and the Infab Companies), if, without fault of such terminating party,
the Closing shall not have been consummated on or before October 31, 1999.
12.2. TERMINATION BY THE BUYER. This Agreement may be
terminated by action of the Board of Directors of the Buyer, at any time prior
to Closing if:
(a) Jenoptik or any Infab Company shall have failed
to comply with any of the covenants or agreements contained in this Agreement,
any Purchase Agreement or any Ancillary Document such that the Closing condition
set forth in Section 9.2 would not be satisfied; provided, however, that if such
breach or breaches are capable of being cured prior to
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the Closing, such breach or breaches shall not have been cured within 15 days of
delivery to M+W of written notice of such breach;
(b) there exists a breach or breaches of any
representation or warranty of Jenoptik or any Infab Company contained in this
Agreement, any Purchase Agreement or any Ancillary Document such that the
Closing condition set forth in Section 9.2 would not be satisfied; provided,
however, that if such failure or failures are capable of being cured prior to
the Closing, such failure or failures shall not have been cured within 15 days
of delivery to M+W of written notice of such failure; or
(c) Jenoptik or any Infab Company engages in any
conduct or takes any action concerning an Acquisition Transaction not permitted
by Section 7.12 hereof.
12.3. TERMINATION BY JENOPTIK. This Agreement may be
terminated at any time prior to the Closing, by action of the Executive Board of
M+W, if:
(a) the Buyer shall have failed to comply with any of
the covenants or agreements contained in this Agreement, any Purchase Agreement
or any Ancillary Document such that the closing condition set forth in Section
10.1 would not be satisfied provided, however, that if such failure or failures
are capable of being cured prior to the Effective Time, such failure or failures
shall not have been cured within 15 days of delivery to the Buyer of written
notice of such failure; or
(b) there exists a breach or breaches of any
representation or warranty of the Buyer contained in this Agreement, any
Purchase Agreement or any Ancillary Document such that the Closing condition set
forth in Section 10.1 would not be satisfied; provided, however, that if such
breach or breaches are capable of being cured prior to the Effective Time, such
breach or breaches shall not have been cured within 15 days of delivery to Buyer
of written notice of such breach.
12.4. PROCEDURE FOR TERMINATION. In the event of termination
and abandonment of the Merger by the Buyer or M+W pursuant to this Article XII,
written notice thereof shall forthwith be given to the other.
12.5. EFFECT OF TERMINATION.
(a) In the event of termination of this Agreement in
accordance with the provisions of this Article XII, this Agreement shall
forthwith become void and no party to this Agreement shall have any liability or
further obligation to any other party, except as provided in this Section 12.5
and in Sections 13.2, 13.4 and 13.5 of this Agreement, which provisions shall
survive such termination, and except that nothing herein shall relieve any party
from liability for any breach of this Agreement.
(b) In the event of a termination of this Agreement
pursuant to Section 12.2(c), Jenoptik or M+W shall, within five (5) business
days thereafter, pay Buyer by wire
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transfer of immediately available funds to an account specified by Buyer a fee
of $2,000,000 (the "Termination Fee").
(c) To the extent that the Termination Fee has not
already become payable and been paid, and, if prior to any termination pursuant
to Section 12.2 any person shall have made or discussed with Jenoptik or any
Infab Company a proposal concerning an Acquisition Transaction and prior to or
within twelve (12) months after the termination of this Agreement Jenoptik or
any Infab Company enters into a definitive agreement with a third party with
respect to an Acquisition Transaction with respect to any of the Companies or
the Infab Business or such an Acquisition Transaction with respect to any of the
Companies or the Infab Business is effected, then Jenoptik or M+W prior to
entering into any such definitive agreement or any such Acquisition Transaction
being effected, shall, within five (5) business days thereafter, pay Buyer by
wire transfer of immediately available funds to an account specified by Buyer
the Termination Fee.
12.6. RIGHT TO PROCEED. Anything in this Agreement to the
contrary notwithstanding, if any of the conditions specified in Article IX
hereof have not been satisfied, Buyer shall have the right to waive the
satisfaction of any such condition as provided in Article IX and to proceed with
the transactions contemplated hereby; however, it shall be deemed to have waived
any claim for indemnification arising out of any condition which has been so
waived. If any of the conditions specified in Article X hereof has not been
satisfied, M+W shall have the right to waive the satisfaction of any such
condition as provided in Article X and to proceed with the transactions
contemplated hereby; however, it shall be deemed to have waived any claim for
indemnification arising out of any condition which has been so waived.
ARTICLE XIII. MISCELLANEOUS
13.1. SURVIVAL OF WARRANTIES. All representations, warranties,
agreements, covenants and obligations herein or in any schedule, certificate or
financial statement delivered by any party to another party incident to the
transactions contemplated hereby are material, shall be deemed to have been
relied upon by the other party and shall survive the Closing for the applicable
periods set forth in Article 11 and shall be further actionable subject to the
limitations set forth therein, regardless of any investigation and shall not
merge in the performance of any obligation by either party hereto.
13.2. FEES AND EXPENSES. Each of the parties will bear its own
expenses in connection with the negotiation and the consummation of the
transactions contemplated by this Agreement, and no expenses of Jenoptik or any
Infab Company relating in any way to the purchase and sale hereunder shall be
included in any account of any of the Companies as of the Closing or shall be
charged to or paid by Buyer.
13.3. NOTICES. All notices, requests, demands and other
communications required or permitted to be given (i) hereunder by any party
hereto shall be in writing and shall be deemed to have been duly given when
received if delivered personally, or (ii) on the business day following the
business day sent if sent by prepaid domestically recognized overnight receipted
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courier if sent domestically, or (iii) on the third business day following the
day sent if sent by prepaid internationally recognized overnight receipted
courier if sent internationally, or (iv) when receipt telephonically
acknowledged if sent by telecopier transmission on a business day or, if not a
business day, on the next following business day, or (v) when answered back if
sent by telex, if on a business day, or if not a business day, or the next
following business day, to the parties at the following addresses (or at such
other addresses as shall be specified by the parties by like notice):
If to the Jenoptik or any of the Infab Companies:
Jenoptik Infab GmbH
Goschwilyer 25
07745 Jena
Germany
Attn: Wolfgang Meyr,
President and CEO
Tel: 011 49 3641 65 2238
Fax: 011 49 3641 65 2480
Meissner + Wurst Zander Holding GmbH
Lotterberg Strasse 30
DX-70499 Stuttgart
Germany
Attn: Jurgen Giessmann,
Chairman of the Board
Tel:011 49 3641 65 2238
Fax:011 49 3641 65 2480
with copies to:
Bruckhaus Westrick Heller & Lober
Grimmaische Strasse 25
D-04109 Leipzig
Germany
Attn: Dr. Nikolaus Reinhuber
Tel: 011 49 341 1 27 23 0
Fax: 011 49 341 1 27 23 33
Gray Cary Ware Freidenrich
400 Hamilton Avenue
Palo Alto, CA 94301-1825
Attn: Thomas M. French, Esquire
Tel: 650 833 2028
Fax: 650 328 3029
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If to the Buyer, to:
Brooks Automation, Inc.
15 Elizabeth Drive
Chelmsford, MA 01824
Tel: (978) 262-2400
Fax: (978) 262-2500
Attn: Ms. Ellen B. Richstone,
Chief Financial Officer
with a copy to each of:
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, MA 02111
Tel: (617) 856-8200
Fax: (617) 856-8201
Attn: Lawrence M. Levy, Esq.
David H. Murphree, Esq.
Haver & Mailander
Lenzalde 83-85
D-70192 Stuttgart
Germany
Tel: + 49 711 227440
Fax: + 49 711 2951935
Attn: Prof. Dr. K. Peter Mailander
Dr. Klaus A. Gerstenmaiser
and in any case at such other address as the addressee shall have specified by
written notice. All periods of notice shall be measured from the date of
delivery thereof.
13.4. PUBLICITY AND DISCLOSURES. Except as may be otherwise
required for compliance with applicable stock exchange rules or securities laws,
neither Buyer nor Jenoptik nor any Infab Company shall issue nor approve any
news release or other public announcement concerning this Agreement (or any
schedules or exhibits hereto) prior to the Closing without the prior written
approval of the other. Subsequent to the Closing, Buyer, Jenoptik and M+W may
issue any news release, public announcement or published information or
documents it deems necessary or desirable.
13.5. CONFIDENTIALITY. In accordance with the terms and
conditions of the Nondisclosure Agreement entered into by the Buyer with Infab
(Germany), Infab (U.S.), and M+W, dated May 24, 1999 the parties agree that they
will keep confidential and not disclose or
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divulge any confidential, proprietary or secret information which they may
obtain from any of the other in connection with the transactions contemplated
herein, or pursuant to inspection rights granted hereunder, or reveal the
financial or other terms and conditions of this Agreement unless such
information is or hereafter becomes public information through means other than
a default hereof by such party or is required to be disclosed by applicable law,
including applicable securities laws or stock exchange rules or regulations. The
obligations of this Section 13.5 shall survive any termination of this
Agreement.
13.6. TIME PERIOD. The parties acknowledge that time is of the
essence with respect to the fulfillment of the respective obligations of the
parties hereto and the Closing of the Transaction as contemplated by this
Agreement.
13.7. ENTIRE AGREEMENT. This Agreement together with the other
Purchase Agreements and the Ancillary Documents (including all exhibits or
schedules appended to this Agreement and all documents delivered pursuant to or
referred to in this Agreement, all of which are hereby incorporated herein by
reference) constitutes the entire agreement between the parties, and all
promises, representations, understandings, warranties and agreements with
reference to the subject matter hereof and inducements to the making of this
Agreement relied upon by any party hereto, have been expressed herein or in the
documents incorporated herein by reference.
13.8. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision hereof.
13.9. ASSIGNABILITY. This Agreement may not be assigned
otherwise than by operation of law (a) by Buyer without the prior written
consent of M+W or (b) by Jenoptik or any Infab Company without the prior written
consent of Buyer. However, any or all rights of Buyer to receive performance
(but not the obligations of Buyer hereunder) and rights to assert claims against
Jenoptik, M+W or M+W(US) in respect of breaches of representations, warranties
or covenants of Jenoptik or any Infab Company hereunder, may be assigned by
Buyer to any direct or indirect subsidiary, parent or other affiliate of Buyer,
but any assignee of such rights shall take such rights subject to any defenses,
counterclaims and rights of setoff to which any member of the Infab Group might
be entitled under this Agreement. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
permitted assigns.
13.10. AMENDMENT. This Agreement may be amended only by a
written agreement executed by Buyer and M+W, for Jenoptik and each of the Infab
Companies.
13.11. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
(other than the choice of law principles thereof), except that any
representations and warranties with respect to real and tangible property shall
be governed by and construed in accordance with the laws of the jurisdiction
where such property is situated if other than in the Commonwealth of
Massachusetts.
13.12. REMEDIES. The parties hereto acknowledge that the
remedy at law for any breach of the obligations undertaken by the parties hereto
is and will be insufficient and
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inadequate and that the parties hereto shall be entitled to equitable relief, in
addition to remedies at law. In the event of any action to enforce the
provisions of this Agreement, the parties shall waive the defense that there is
an adequate remedy at law. Infab (Germany) acknowledges that the Infab Shares
are unique and cannot be obtained on the open market. Without limiting any
remedies any party may otherwise have hereunder or under applicable law, in the
event any other party refuses to perform its obligations under this Agreement,
the first party shall have, in addition to any other rights at law or equity,
the right to specific performance.
13.13. COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
13.14. EFFECT OF TABLE OF CONTENTS AND HEADINGS. Any table of
contents, title of an article or section heading herein contained is for
convenience of reference only and shall not affect the meaning of construction
of any of the provisions hereof.
13.15. DISPOSITION OF PURCHASE SHARES. Jenoptik and the Infab
Companies agree that they will not sell or otherwise dispose of any of the
Purchase Shares in violation of the registration requirements of the Securities
Act of 1933 or in violation of any other federal or state laws or regulations
governing the sale or other disposition of securities.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to
be executed as an instrument under seal in multiple counterparts as of the date
set forth above by their duly authorized representatives.
[SIGNATURES APPEAR ON NEXT PAGE]
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BROOKS AUTOMATION, INC.
/s/ Ellen B. Richstone
BY:__________________________________
FASTech INTEGRATION, INC.
/s/ Ellen B. Richstone
BY:__________________________________
BROOKS AUTOMATION GmbH
/s/ Ellen B. Richstone
BY:__________________________________
JENOPTIK A.G.
/s/ Alexander von Witzleben
BY:__________________________________
MEISSNER + WURST ZANDER HOLDING GmbH
/s/ Alexander von Witzleben
BY:__________________________________
JENOPTIK INFAB GmbH
/s/ Alexander von Witzleben
BY:__________________________________
JENOPTIK INFAB KK
/s/ Alexander von Witzleben
BY:__________________________________
JENOPTIK INFAB PLC
/s/ Alexander von Witzleben
BY:__________________________________
JENOPTIK INFAB, LTD.
/s/ Alexander von Witzleben
BY:__________________________________
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MEISSNER + WURST US, INC.
BY: /s/ Alexander von Witzleben
----------------------------------
JENOPTIK INFAB, INC.
BY: /s/ Alexander von Witzleben
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MASTER PURCHASE AGREEMENT
LIST OF SCHEDULES AND EXHIBITS
EXHIBIT DOCUMENT
Exhibit A Confidentiality Agreement
Exhibit B Infab (Germany) Asset Purchase Agreement
Exhibit C Infab (US) Asset Purchase Agreement
Exhibit D Stockholder Agreement
Exhibit E Transitional Services Agreement
Exhibit F Jenoptik Noncompetition Agreement
Exhibit G Employee Noncompetition and Proprietary
Information Agreement
Exhibit H Form of Opinion of Counsel for Jenoptik &
M+W
Exhibit I Form of Opinion of Counsel for each of Sellers
Exhibit J Form of Opinion of Counsel for Share Transfer
Exhibit K Form of Opinion of Counsel for Buyer
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FIRST AMENDMENT
TO
MASTER PURCHASE AGREEMENT
This First Amendment to Master Purchase Agreement is being entered into
this 30th of September, 1999, by and among the parties whose names appear on the
signature page hereof (the "Parties").
RECITALS
That certain Master Purchase Agreement was entered into by the Parties
on September 9, 1999 (the "Master Purchase Agreement").
The Master Purchase Agreement called for a closing of the sale and
transfer transactions contemplated therein on September 30, 1999.
The Parties have satisfied or waived all conditions of closing provided
for in the Master Purchase Agreement, except those more particularly set forth
below (the "Remaining Conditions").
The Parties now desire to establish an escrow for purposes of
depositing therein all closing documents and instruments, pending satisfaction
and waiver of the Remaining Conditions.
AGREEMENT
1. ACKNOWLEDGEMENT OF SATISFACTION OR WAIVER OF THE REMAINING CONDITIONS.
The Parties acknowledge and agree that, except for the Remaining
Conditions, all conditions to closing the Master Purchase Agreement have either
been fully satisfied or waived.
2. REMAINING CONDITIONS. The Remaining Conditions are:
(a) Sellers, as defined in the Master Purchase Agreement, are
to use their best efforts to obtain from Clearfield Investments, LLC
("Clearfield") by October 15, 1999 its written consent to the assignment by
Sellers to Buyer of that certain Lease Agreement dated February 24, 1999 between
Clearfield and Sellers;
(b) Sellers are to use their best efforts to obtain from
Hewlett Packard Corporation ("HP") by October 15, 1999 its written consent to
the assignment by Sellers to Buyer of that certain SMIF System License Agreement
dated April 4, 1995, between HP and Sellers.
(c) Sellers are to use their best efforts to obtain from
Seiko-Seiki Co. Ltd. ("SS") by October 15, 1999 its written consent to the
assignment by Sellers to Buyer of that certain Service Representative Agreement
dated October 2, 1997 between Sellers and SS;
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(d) Sellers are to use their best efforts to obtain, from
Cybernetix S.A. ("CSA"), by October 15, 1999, its written consent to the
assignment by Sellers to Buyer of that certain Service Representative Agreement
dated 1998 between Sellers and CSA;
(e) Sellers are to use their best efforts to obtain executed
noncompetition agreements, by October 15, 1999, in form reasonably acceptable to
Buyer, from the persons identified on SCHEDULE 7.8 OF THE MASTER PURCHASE
AGREEMENT; Buyer will cooperate with Sellers' efforts in this regard;
(f) Buyer shall have obtained, by October 15, 1999
(1) An executed legal opinion of Middleton Potts in
form reasonably satisfactory to Buyer;
(2) A copy of the notice of shareholders meeting
called to ratify the license agreement referenced in
Section 9.13 of the Master Purchase Agreement; and
(3) Evidence of the satisfaction of the measures
suggested under the caption "5. Suggested Procedure"
in the letter from J.S. Morrall to Dr. Nikolaus
Reinhuber and Dr. Merve Finke, c/o Sam Williams, Esq.
Dated 28th September, 1999.
(g) Sellers are to provide to Buyer, by October 15, 1999,
(1) footnotes (Anhang) conforming to German GAAP the
Consolidated Financial Statements (the "Financial
Statements") of the Infab Group audited by Ebner
Stolz & Partner ("Ebner") delivered on this day;
(2) information necessary to reconcile the Financial
Statements to U.S. GAAP; and
(3) satisfactory assurances that Ebner shall provide
written consents to the inclusion of the Financial
Statements with Buyer's filings with the U.S.
Securities and Exchange Commission;
(h) Sellers shall wire transfer, by October 15, 1999, in good
funds, the sum of US$3,023,000, to Buyer's U.S. bank account, in accordance with
Buyer's written instructions to Sellers.
3. DEPOSIT INTO ESCROW WITH BROWN RUDNICK.
The Parties have deposited with Brown, Rudnick, Freed & Gesmer ("Escrow
Holder") certain fully executed closing documents and instruments respecting the
Master Purchase Agreement. The Escrow Holder shall hold such documents and
instruments until receiving written instructions from the Parties. If such
instructions are not received by the Escrow Holder by October 16, 1999, or if
such instructions are in conflict with or are inconsistent with one
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another, the Escrow Agent shall take no further action, and shall have no
further duties or obligations, and shall promptly return the original signature
pages to each of the respective signatories thereof; and further in such event
all funds transferred by Sellers to Buyer in accordance with paragraph 2(h)
hereof shall be promptly returned to Sellers by Buyer.
If the Remaining Conditions are not fully waived or satisfied by
October 15, 1999, the Parties' rights and obligations shall be governed by the
provisions of the Master Purchase Agreement.
4. CLOSING. Should the satisfaction or waiver of all of the Remaining Conditions
occur on or prior to October 15, 1999, the closing of the Master Purchase
Agreement shall be deemed to have been consummated, and such closing shall be
deemed to be effective as of September 30, 1999.
Executed at Boston, Massachusetts the date and year first stated above.
BROOKS AUTOMATION, INC.
BY: /s/ Ellen B. Richstone
----------------------------------
FASTech INTEGRATION, INC.
BY: /s/ Ellen B. Richstone
----------------------------------
BROOKS AUTOMATION GmbH
BY: /s/ Ellen B. Richstone
----------------------------------
JENOPTIK A.G.
BY: /s/ Alexander von Witzleben
----------------------------------
MEISSNER + WURST ZANDER HOLDING GmbH
BY: /s/ Alexander von Witzleben
----------------------------------
JENOPTIK INFAB GmbH
BY: /s/ Alexander von Witzleben
----------------------------------
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JENOPTIK INFAB KK
BY: /s/ Alexander von Witzleben
----------------------------------
JENOPTIK INFAB PLC
BY: /s/ Alexander von Witzleben
----------------------------------
JENOPTIK INFAB, LTD.
BY: /s/ Alexander von Witzleben
----------------------------------
MEISSNER + WURST US, INC.
BY: /s/ Alexander von Witzleben
----------------------------------
JENOPTIK INFAB, INC.
BY: /s/ Alexander von Witzleben
----------------------------------
We acknowledge receipt of the documents
and instruments referred to above, and
we agree to carry out the duties of the
Escrow Agent described above:
BROWN, RUDNICK, FREED & GESMER
By: /s/ David Murphree
--------------------------
Date: September 30, 1999
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EXHIBIT 2.2
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STOCKHOLDER
AGREEMENT
DATED: SEPTEMBER 30, 1999
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Stockholder Agreement
Execution Copy
<PAGE> 2
STOCKHOLDER AGREEMENT
TABLE OF CONTENTS
ARTICLE 1. COVENANTS OF THE COMPANY AND THERRIEN...............................1
1.1 Board Appointment........................................................1
1.2. Agreement To Vote........................................................1
ARTICLE 2. COVENANTS OF INVESTOR...............................................2
2.1 Standstill Agreement.....................................................2
2.2 Proxy Solicitations......................................................3
2.3 Voting Agreements........................................................3
ARTICLE 3. RESTRICTION ON TRANSFERS............................................4
3.1. Restriction on Transfers.................................................4
3.2. Exceptions...............................................................4
3.3. Agreement By Transferee..................................................4
3.4. Certificates Legended....................................................4
3.5. Sales to Third Parties...................................................5
3.6 Company's Right of First Refusal.........................................5
3.7 Sales to Proposed Transferee.............................................6
3.8 Determination of Fair Value..............................................6
ARTICLE 4. COVENANTS OF JENOPTIK...............................................7
4.1 Access to Information on Projects........................................7
4.2 Preferred Supplier.......................................................7
4.3 No Commission............................................................8
ARTICLE 5. DEFINITIONS.........................................................8
ARTICLE 6. MISCELLANEOUS......................................................10
6.1 Termination.............................................................10
6.2 Notices.................................................................10
6.3 Integration with Master Purchase Agreement..............................11
6.4 Amendments and Waivers..................................................11
6.5 Governing Law; Severability.............................................11
6.6 Counterparts............................................................12
6.7 Effect of Table of Contents and Headings................................12
LIST OF EXHIBITS..............................................................14
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STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT entered into as of the 30th day of September,
1999, by and among Brooks Automation, Inc., a Delaware corporation with its
principal place of business at 15 Elizabeth Drive, Chelmsford, Massachusetts
01824 (the "Company"), Robert J. Therrien in his capacity as a stockholder of
the Company ("Therrien"), Meissner + Wurst Zander Holding GmbH, a German
corporation with offices at Stuttgart, Germany ("Investor") and Jenoptik AG, a
German corporation and the parent corporation of the Investor ("Jenoptik").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, the Investor, Jenoptik, Jenoptik Infab GMBH,
Jenoptik Infab KK, Jenoptik Infab, Inc., Jenoptik Infab PLC ("Infab Ireland")
and Jenoptik Infab, Ltd. ("Infab Scotland"), direct or indirect subsidiaries of
the Investor, have on this date entered into a Master Purchase Agreement (the
"Master Purchase Agreement") whereby the Company has agreed to purchase all the
issued and outstanding common stock of Infab Scotland and Infab Ireland
(collectively, the "Infab Shares") and the Purchased Assets (as defined in the
Master Purchase Agreement) in exchange for shares of Common Stock of the Company
(the "Purchase Shares");
WHEREAS, it is a condition to the Master Purchase Agreement that this
Stockholder Agreement be entered into; and
WHEREAS, the Investor and the Company wish to enter into certain
agreements relating to the terms upon which the Purchase Shares shall be held
and transferred and other matters;
NOW, THEREFORE, in consideration of the Master Purchase Agreement and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound, it is hereby agreed by
and between the parties as follows:
ARTICLE 1. COVENANTS OF THE COMPANY AND THERRIEN
The Company agrees with the Investor that following the Closing:
1.1 BOARD APPOINTMENT. The Company effective immediately upon the
Closing appoints Jurgen Giessman to serve on the Company's Board of Directors
until the Company's next annual meeting of stockholders.
1.2 AGREEMENT TO VOTE. Until such time as the Investor and its
Affiliates no longer hold all of the Purchase Shares (after giving effect to the
post closing adjustments provided for in the Master Purchase Agreement) or until
five years from the date of this Agreement, whichever first occurs:
(a) In each election of directors (whether at special or
annual meeting or by written consent), the Board of Directors of the Company
will nominate as one of the nominees of the Board of Directors for election as a
director the person designated by the Investor as set forth in paragraph (b).
Therrien shall vote all shares of the Company's Common Stock controlled by him,
directly or indirectly, in favor of the election of such person to the Company's
Board of Directors.
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(b) The Investor shall designate one person as its nominee to
be a director of the Company, which person shall be Mr. Jurgen Geissman or such
other person as may be designated by the Investor and (i) is acceptable to
Therrien and the other members of the Board of Directors of the Company in their
reasonable discretion and (ii) shall not be a Competitor. The nominee so
selected by the Investor shall be specified in a written notice delivered to
Therrien and the Board of Directors a reasonable period of time prior to
completion by the Company of its proxy materials. Therrien and the Board of
Directors shall indicate his and its approval or disapproval, as the case may
be, promptly after receipt of the written notice.
(c) Investor shall take such action as may be required so that
all Voting Securities owned by the Investor or any of the Affiliates are voted
for nominees to the Board of Directors of the Company and, unless the Company
otherwise consents in writing, on all other matters to be voted on by the
holders of Voting Securities, in the same proportion as the votes cast by other
holders of Voting Securities; PROVIDED that Voting Securities owned by the
Investor or any Affiliate may be voted as such persons determine in their sole
discretion on any Significant Event. The Investor and its Affiliates, as holders
of Voting Securities, shall be present, in person or by proxy, at all meetings
of shareholders of the Company so that all Voting Securities beneficially owned
by them may be counted for the purpose of determining the presence of a quorum
at such meetings.
(d) Each director selected and elected in accordance with
Sections 1.1 and 1.2 shall serve until his successor is designated, elected and
qualified or until his earlier resignation or removal. The designee of the
Investor may be removed during his term of office without cause only by vote of
the stockholders. Any vacancy in the office of the director selected by the
Investor shall be filled by the parties promptly in accordance with paragraph
(b) above, and his office shall not be filled by the directors other than by a
person designated by Investor.
ARTICLE 2. COVENANTS OF INVESTOR.
The Investor agrees with the Company that following the Closing:
2.1 STANDSTILL AGREEMENT. Neither Investor nor any Affiliate of the
Investor will without the prior written consent of the Company, directly or
indirectly, acquire any Voting Securities (except by way of stock dividends or
other distributions or offerings made available to holders of Voting Securities
generally) if the effect of such acquisition would be to increase the aggregate
voting power in the election of directors of all Voting Securities then owned by
Investor and all its Affiliates to greater than the combined voting power of all
the Purchase Shares (after giving effect to the post closing adjustments in
connection with the Master Purchase Agreement); PROVIDED THAT:
(a) The Investor may acquire Voting Securities without regard
to the foregoing limitation if any of the following events (each a "Triggering
Event") shall occur: (i) a tender or exchange offer is made by any person or
Schedule 13D Group to acquire Voting Securities which, if added to any Voting
Securities (if any) already owned by such person or Schedule 13D Group, would
represent more than 25% of the total combined voting power of all Voting
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Securities then outstanding; (ii) it is publicly disclosed or Investor otherwise
learns that Voting Securities representing more than 25% of the total combined
voting power of all Voting Securities then outstanding have been acquired
subsequent to September 30, 1999, or are proposed (in a public announcement or
filing) to be acquired subsequent to such date by any person or Schedule 13D
Group; or (iii) any person or Schedule 13D Group shall beneficially own Voting
Securities representing more than 25% of the total combined voting power of all
Voting Securities than outstanding, and would be required (under rules and
regulations in effect on the date hereof) to file a statement on Schedule 13D
with the SEC reporting beneficial ownership of such Voting Securities.
(b) neither the Investor nor any Affiliate of the Investor
shall be obligated to dispose of any Voting Securities if the aggregate
percentage ownership of the Investor and its Affiliates is increased as a result
of a recapitalization of the Company, a repurchase by the Company of its Voting
Securities or any other action taken by the Company or its affiliates other than
the Investor and its Affiliates.
2.2 PROXY SOLICITATIONS.
(a) Neither the Investor nor any Affiliate of the Investor
shall solicit proxies or become a "participant" in a "solicitation" (as such
terms are defined in Regulation 14A under the Exchange Act) in opposition to the
recommendation of the majority of the directors of the Company with respect to
any matter; PROVIDED THAT (i) if the Investor opposes any solicitation by the
Company's management with respect to any Significant Event, the Company shall
include in its proxy statement in connection with such solicitation the fact
that Investor opposes such solicitation and a brief statement provided by
Investor stating Investor's reasons for such opposition and (ii) if at any time
a designee of the Investor is serving as a member of the Company's Board of
Directors, the Investor shall not be deemed to be a "participant" solely by
reason of the membership of such designee on the Board of Directors of the
Company.
(b) Except in the case of a Triggering Event, neither the
Investor nor any Affiliate of the Investor shall join a partnership, limited
partnership, syndicate or other group, or otherwise act in concert with any
other person, for the purpose of acquiring, holding, voting or disposing of
Voting Securities, or otherwise become a "person" within the meaning of Section
13(d)(3) of the Exchange Act (in each case other than solely with the Investor
and its Affiliates). In the case of a Triggering Event, subject to the
limitations in this Section 2.2(b), Investor may join a partnership, limited
partnership, syndicate or other group, or otherwise act in concert with any
other person, for the purpose of acquiring, holding, voting or disposing of
Voting Securities or otherwise become a "person" within the meaning of Section
13(d)(3) of the Exchange Act. In no case shall Investor or any of its Affiliates
be permitted to join a partnership, limited partnership, syndicate or other
group with any person or Schedule 13D Group participating in the Triggering
Event or otherwise act in concert with any person or become a "person" within
the meaning of Section 13(d)(3) of the Exchange Act in either case in connection
with any person or Schedule 13D Group participating in the Triggering Event.
2.3 VOTING AGREEMENTS. Neither the Investor nor any Affiliate of the
Investor shall deposit any Voting Securities in a voting trust or subject any
Voting Securities to any arrangement or agreement with respect to the voting of
such Voting Securities.
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ARTICLE 3. RESTRICTION ON TRANSFERS.
3.1 RESTRICTION ON TRANSFERS. Until five years after the date of this
Agreement, Investor may not transfer any interest in any Voting Securities
directly or indirectly owned by it (whether by way of gift, sale, transfer,
assignment, pledge, hypothecation, mortgage or otherwise). After five years from
the date of this Agreement, Investor may transfer any interest in any Voting
Securities directly or indirectly owned by it (whether by way of gift, sale,
transfer, assignment, pledge, hypothecation, mortgage or otherwise) provided (i)
such transfer is not to a Competitor and (ii) Investor shall have first offered
the Company a right of first refusal in the manner provided in this Article 3.
These restriction on transfer shall not apply to any offer or transfer of Voting
Securities: (a) to the Investor or one of its other Affiliates, provided that
any such transferee shall comply with Section 3.3, (b) to the Company or any
person or group approved in writing by the Company, (c) in response to (i) an
offer to purchase or exchange for cash or other consideration any Voting
Securities (A) which is made by or on behalf of the Company or (B) which is made
by another person or group and is approved by the Board of Directors of the
Company within the time such Board is required pursuant to regulations under the
Exchange Act to advise the shareholders of the Company of the Board's position
on such offer, or (d) pursuant to a plan of liquidation of the Company.
3.2 EXCEPTIONS. The first refusal right of this Article shall not apply
to any offer or transfer (a) to the Investor or one of its other Affiliates,
provided that any such transferee shall comply with Section 3.3, (b) after five
years from the date of this Agreement, pursuant to a rights offering or a
dividend or other distribution to stockholders of the Investor or any of its
Affiliates, (c) after five years from the date of this Agreement, unsolicited
brokerage transactions of less than the amount that would be permitted by Rule
144(e) under the Securities Act if it were applicable, (d) as a result of any
pledge or hypothecation to a bona fide financial institution to secure a bona
fide loan or the foreclosure of any lien or encumbrance which may be placed upon
any Voting Securities (whether voluntarily or involuntarily), (e) to the Company
or any person or group approved in writing by the Company, (f) in response to
(i) an offer to purchase or exchange for cash or other consideration any Voting
Securities (A) which is made by or on behalf of the Company or (B) which is made
by another person or group and is approved by the Board of Directors of the
Company within the time such Board is required pursuant to regulations under the
Exchange Act to advise the shareholders of the Company of the Board's position
on such offer or (g) pursuant to a plan of liquidation of the Company.
3.3 AGREEMENT BY TRANSFEREE. No person shall receive an interest
pursuant to Section 3.2(a) in any Voting Securities now or hereafter held by the
Investor, whether such receipt was voluntary, involuntary or by operation of
law, unless such person shall first agree in writing to be bound by all of the
terms of this Agreement as if such transferee were the Investor hereunder.
3.4 CERTIFICATES LEGENDED. Upon the execution of this Agreement, and
during the term of this Agreement, each certificate evidencing any of the Shares
held by Investor or any Affiliate shall be conspicuously legended as follows:
The stock evidenced by this certificate is subject to the
restrictions of, and is transferable only upon compliance with
the provisions of, a Stockholder Agreement dated September 30,
1999 between the corporation and the holders of certain
securities of the corporation. A copy of said agreement is on
file in
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the office of the corporation, and a copy thereof will be
mailed to the holder hereof without charge upon receipt of a
written request therefor.
3.5 SALES TO THIRD PARTIES.
(a) Subject to Sections 3.1 and 3.2 hereof, if at any time
during the term of this Agreement the Investor proposes to transfer any Voting
Securities now or hereafter directly or indirectly beneficially owned by it
("Selling Stockholder") to a Proposed Transferee, it shall first submit a
written offer (the "First Refusal Offer") to sell such shares (the "Offered
Shares") to the Company as provided in this Article 3.
(b) The First Refusal Offer shall disclose the identity of
and, if available, information about the Proposed Transferee and the terms of
the Proposed Transfer, the number of shares proposed to be sold, the total
number of Voting Securities owned by the Investor, and the terms and conditions,
including without limitation price, of the Proposed Transfer. The Investor shall
also provide any other material facts relating to the Proposed Transfer which
may be reasonably requested by the Company. The First Refusal Offer shall
further state that the Company may acquire, in accordance with the provisions of
this Article, all or any part of the Offered Shares on terms and conditions,
including without limitation price, not less favorable to the Company than those
on which the Investor proposes to sell the Offered Shares to the Proposed
Transferee, including any deferred or installment payment provision.
(c) In the event the terms of the Proposed Transfer
contemplate the payment to the Investor of consideration other than cash, the
Fair Value of such non-cash consideration shall be determined in accordance with
Section 3.8 hereof.
3.6 COMPANY'S RIGHT OF FIRST REFUSAL.
(a) If the Company desires to purchase all or any part of the
Offered Shares, the Company shall deliver a written notice of its election to
purchase to the Investor within 15 days after the date of receipt of the First
Refusal Offer by the Company. Such notice to purchase the Offered Shares, shall,
when taken in conjunction with the First Refusal Offer, be deemed to constitute
a valid, legally binding and enforceable agreement for the sale to, and purchase
by, the Company of the number of Offered Shares specified by the Company in such
notice and on the terms of the First Refusal Offer.
(b) The closing of the sale of Offered Shares to the Company
pursuant to this Section 3.6 shall be made at the offices of the Company on such
date as may be agreed upon by the Company and Investor, but no later than 45
days following the date the First Refusal Offer is received by the Company. Such
sale shall be effected by the Investor's delivery to the Company of a
certificate(s) evidencing the Offered Shares (or any portion thereof) to be
purchased by the Company, duly endorsed for transfer to the Company, against
payment to the Investor of the purchase price by the Company. The non-exercise
by the Company of its rights pursuant to this Section shall be without prejudice
to its rights under this Section 3.6 with respect to any future sales of Offered
Shares.
3.7 SALES TO PROPOSED TRANSFEREE. In the absence of a valid election to
purchase, the Offered Shares may be sold by the Investor to the Proposed
Transferee at any time within 90
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days after the date of receipt of the First Refusal Offer by the Company. Any
such sale shall be at the same or greater price and upon other terms and
conditions, if any, not more favorable to the Proposed Transferee than those
specified in the First Refusal Offer. Any Offered Shares not sold within the
permitted time period shall continue to be subject to the requirements of a
prior offer and right of first refusal pursuant to this Article 3.
3.8 DETERMINATION OF FAIR VALUE.
For the purpose of this Agreement, Fair Value shall be determined as
follows:
(a) The Fair Value of any security then traded on any national
securities exchange or automated quotation system which has sale price
reporting, shall be the mean between the high and low sales prices, if any, on
such exchange or system on the date as of which Fair Value is being determined
or, if none, shall be determined by taking a weighted average of the means
between the highest and lowest sales prices on the nearest date before and the
nearest date after that date.
(b) If a security is then traded on an exchange or system
which does not have sale price reporting, the Fair Value of the security shall
be the mean between the average of the "bid" and the average the "ask" prices,
if any, as reported for such the date as of which Fair Value is being
determined, or, if none, shall be determined by taking a weighted average of the
means between the highest and lowest sales prices on the nearest date before and
the nearest date after such date.
(c) Fair Value for Voting Securities of the Company if it is
not publicly traded shall be determined by dividing the highest price (net of
total debt determined in accordance with generally accepted accounting
principles) for which the Company could be sold as a going concern to an
independent third party, assuming a reasonable time (up to 12 months) to
accomplish such sale by the number of fully diluted shares of Voting Securities
(calculated on an as converted basis, and assuming the exercise of all rights,
options, and warrants and conversion of all convertible securities) outstanding.
In order to determine the value for which the Company could be sold, the Company
and the Investor shall meet and use their best efforts to reach an agreement on
the Company's Fair Value. If such parties are unable to reach such agreement
within a reasonable amount of time, such parties will use their best efforts to
agree upon the selection of an independent appraiser or investment banking firm
of international standing within 30 business days after giving notice that
requires a determination of Fair Value. Such appraiser or investment banking
firm will have 30 business days in which to determine the Fair Value, and its
determination will be final and binding on all parties concerned. All costs of
such determination shall be borne equally by the parties.
(d) The Fair Value of any property other than cash or
securities offered as consideration by a Proposed Transferee for the Offered
Shares shall be the fair market value of such property. In order to determine
the fair market value of such property, the Company and the Investor shall meet
and use their best efforts to reach an agreement on the fair market value. If
such parties are unable to reach such agreement within a reasonable amount of
time, such parties will use their best efforts to agree upon the selection of an
independent appraiser within thirty business days after giving notice that
requires a determination of Fair Value. Such
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appraiser will have thirty business days in which to determine the Fair Value,
and this determination will be final and binding on all parties concerned. All
costs of such determination shall be borne equally by the parties.
ARTICLE 4. COVENANTS OF JENOPTIK
Jenoptik agrees as follows on behalf of itself and all members of the Jenoptik
Group to the extent permitted by applicable law:
4.1 ACCESS TO INFORMATION ON PROJECTS.
(a) For as long as any member of the Jenoptik Group holds
Voting Securities, if any member of the Jenoptik Group is involved in providing
design, planning or other services with respect to the development of a
semi-conductor fabrication facility for any customer or potential customer,
Jenoptik with reasonably promptness shall provide notice to the Company, in
accordance with Section 6.2 hereof, including the following information:
(i) a general description of the proposed fabrication
facility;
(ii) the design or designs for such facility being
proposed by Jenoptik;
(iii) a description of the general types and
estimated number of pieces of equipment that will be required for the facility,
including any special capability, with particular reference to the types of
equipment or facilities then being offered by the Company or any of its
Affiliates; and
(iv) the estimated time schedule for construction of
the facility, ordering and delivery of equipment for such facility.
(b) Jenoptik shall provide the Company with a reasonable
opportunity to comment on the project for which it receives the notice and
information under paragraph (a) above and Jenoptik will continue to keep the
Company advised of the status of each such project as it progresses.
(c) The Jenoptik Group is not required to comply with this
Section 4.1 to the extent compliance would breach the Jenoptik Group's
confidentiality agreements. However, the Jenoptik Group shall use commercially
reasonable efforts to ensure that it will be permitted to comply with this
Section 4.1 in connection with any confidentiality agreements.
4.2 PREFERRED SUPPLIER.
(a) For so long as any member of the Jenoptik Group holds
Voting Securities:
(i) Jenoptik Group shall specify the Company as a
preferred supplier;
(ii) If at any time any member of the Jenoptik Group
proposes to order from a third party products and applications similar to those
then offered by the Company or any Affiliate of the Company (the "Third Party
Proposal"), then the Jenoptik Group member shall first give the Company a
written notice (the "Jenoptik Offer") offering the Company, without
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disclosing the identity of the third party, the opportunity to match the terms
and conditions of the Third Party Proposal. The Jenoptik Offer shall disclose
the terms and conditions of the Third Party Proposal and be delivered to the
Company in accordance with Section 6.2 hereof. If the Company desires to accept
the Jenoptik Offer, the Company shall deliver a written notice of its election
to accept the Jenoptik Offer within thirty days after the date of receipt of the
Jenoptik Offer by the Company. Such notice to accept the Jenoptik Offer shall,
when taken in conjunction with the Jenoptik Offer, be deemed to constitute a
valid, legally binding and enforceable agreement.
(b) If for any reason any member of the Jenoptik Group fails
to make the Jenoptik Offer required by paragraph (a), then it shall pay to the
Company liquidated damages equal to the greater of $1,000,000 or 10% of the
revenues the Company could have recognized if the Company accepted the Jenoptik
Offer.
4.3 NO COMMISSION. Jenoptik guarantees that by December 31, 2000 it
will award to the Company, for no commission, an exclusive supply contract (the
"Exclusive Supply Contract") in connection with the project to build the First
Silicon semiconductor fabrication facility (the "First Silicon Project") . Under
the Exclusive Supply Contract, the Company shall be the exclusive supplier of
all products and applications required for the First Silicon Project which the
Company then offers. The Exclusive Supply Contract shall be on terms reasonably
satisfactory to the Company and shall provide for prices such that the Company
is able to realize the fully loaded gross margins as specified on Exhibit A
hereto.
ARTICLE 5. DEFINITIONS.
All capitalized terms used herein without definitions shall have the
respective meanings provided therefor in the Master Purchase Agreement. In
addition, for purposes of this Agreement, the following terms shall have the
indicated respective meanings:
"Affiliate" has the meaning specified under the Securities Act.
"Business Sale" means (i) any merger or consolidation of the Company
with or into another corporation or entity (whether or not the Company is the
surviving entity if, after the merger or consolidation, more than 50% of the
voting interests of the surviving entity are owned by persons who were not
holders of voting securities of the Company prior to the merger or
consolidation), (ii) any share exchange or sale by the holders of 80% or more of
the Voting Securities of the Company, or (iii) the sale of all or substantially
all the assets of the Company.
"Charter" means the Certificate of Incorporation or equivalent
document, as amended from time to time.
"Common Stock" shall include any class of capital stock of the Company,
now or hereafter authorized, the right of which to share in distributions either
of earnings or assets of the Company is without limit as to any amount or
percentage, and common stock or other securities issued in substitution or
exchange for the presently authorized Common Stock in connection with a
reorganization, reclassification, merger or sale of assets.
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"Competitor" means any individual or entity whose business is in
competition with the business carried on by the Company or any of its
Affiliates.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the SEC issued
under the Exchange Act, as they each may, from time to time, be in effect.
"Fair Value" has the meaning specified in Section 3.8.
"First Refusal Offer" has the meaning specified in Section 3.5.
"Investor" means Meissner + Wurst Zander Holding GmbH.
"Jenoptik Group" means Jenoptik and any and all direct and indirect
Subsidiaries of Jenoptik.
"Offered Shares" means any shares of Voting Securities offered to the
Company pursuant to Article 3.
"Proposed Transfer" means a proposed transfer by the Investor to a
Proposed Transferee subject to Article 3.
"Proposed Transferee" means a bona fide third party who has offered to
buy or accepted an offer to sell Voting Securities from the Investor.
"Purchase Shares" means the shares of Common Stock to be issued
pursuant to the Master Purchase Agreement and pursuant to certain other Purchase
Agreements.
"SEC" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the securities laws of the United
States.
"Schedule 13D Group" means any group of persons formed for the purpose
of acquiring, holding, voting or disposing of Voting Securities which would be
required under Section 13(d) of the Exchange Act and the rules and regulations
thereunder (as now in effect and based on present legal interpretations thereof)
to file a statement on Schedule 13D with the SEC as a "person" within the
meaning of Section 12(d) (3) of the Exchange Act if such group beneficially
owned Voting Securities representing more than 5% of the total combined voting
power of all Voting Securities then outstanding, but specifically shall not
include the Investor and any Affiliates or any group of which any of them are
members.
"Significant Event" means any Charter or by-law amendment, Business
Sale, change in capitalization or liquidation of the Company.
"Triggering Events" mean the events described in Section 2.1(a) hereof.
"Voting Securities" means the Common Stock of the Company, $.01 par
value per share, any other class of capital stock of the Company outstanding and
entitled to vote generally on the
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election of directors, and includes any right, option, or warrant to acquire any
such class of capital stock or security exchangeable for or convertible into any
such class capital stock.
ARTICLE 6. MISCELLANEOUS.
6.1 TERMINATION
(a) This Agreement may be terminated only (i) by mutual
consent of the parties, or (ii) upon the expiration of its term in accordance
with paragraph (b) below.
(b) Subject to earlier termination under paragraph (a) above
(i) the provisions of Articles 1 and shall continue for the periods indicated in
the applicable sections, (ii) the provisions of Article 2 shall continue without
limitation as to time, and (iii) the provisions of Articles 3 and 4 shall
continue until such time as Investor and its Affiliates no longer own
beneficially any of the Voting Securities,
6.2 NOTICES. Any notice or other communication in connection with this
Agreement shall be deemed to be delivered if in writing (or in the form of a
telegram) addressed as provided below and if either (a) actually delivered at
said address, or (b) in the case of a letter, three business days shall have
elapsed after the same shall have been deposited in the United States mails or
in the German mails, postage prepaid and registered or certified:
If to the Company, to:
Brooks Automation, Inc.
15 Elizabeth Drive
Chelmsford, MA 01824
Tel: (978) 262-2400
Fax: (978) 262-2500
Attn: Ms. Ellen Richstone
with a copy to:
Brown, Rudnick, Freed & Gesmer
One Financial Center
Boston, MA 02111
Tel: (617) 856-8200
Fax: (617) 856-8201
Attn: David H. Murphree, Esq.
If to the Investor, to:
Meissner + Wurst Zander Holding GmbH
Lotterberg Strasse 30
DX-70499 Stuttgart
Germany
Attn: Jurgen Giessmann,
Chairman of the Board
Tel: 011 49 3641 65 2238
Fax: 011 49 3641 65 2480
with copies to:
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Bruckhaus Westrick Heller & Lober
Grimmaische Strasse 25
D-04109 Leipzig
Germany
Attn: Dr. Nikolaus Reinhuber
Tel: 011 49 341 1 27 23 0
Fax: 011 49 341 1 27 23 33
Gray Cary Ware Freidenrich
400 Hamilton Avenue
Palo Alto, CA 94301-1825
Attn: Thomas M. French, Esquire
Tel: 650 833 2028
Fax: 650 328 3029
and in any case at such other address as the addressee shall have specified by
written notice. All periods of notice shall be measured from the date of
delivery thereof.
6.3 INTEGRATION WITH MASTER PURCHASE AGREEMENT. This Agreement and the
Master Purchase Agreement (including all exhibits or schedules appended to this
Agreement and the Master Purchase Agreement and all documents delivered pursuant
to or referred to in this Agreement and the Master Purchase Agreement, all of
which are hereby incorporated herein by reference) constitute the entire
agreement to the extent provided herein and therein between the parties.
6.4 AMENDMENTS AND WAIVERS. Changes in or additions to this Agreement
may be made or compliance with any term, covenant, agreement, condition or
provision set forth herein or therein may be omitted or waived (either generally
or in a particular instance and either retroactively or prospectively), upon
written consent of the Company and the Investor; provided however, that no
waiver or consent on any one instance shall be deemed to be or be construed as a
further or continuing waiver of any such term or condition unless it expressly
so provides.
6.5 GOVERNING LAW; SEVERABILITY. This Agreement shall be deemed a
contract made under the laws of the State of Delaware and, together with the
rights and obligations of the parties hereunder, shall be construed under and
governed by the laws of such State. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision hereof.
6.6 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed in original but all of which
together shall constitute one and the same instrument.
6.7 EFFECT OF TABLE OF CONTENTS AND HEADINGS. Any table of contents,
title of an article or section heading herein contained is for convenience or
reference only and shall not affect the meaning of construction of any of the
provisions hereof.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the parties hereto or their duly authorized representatives
effective as of the date first above written.
Brooks Automation, Inc.
By: /s/ Ellen B. Richstone
--------------------------
Ellen B. Richstone
Chief Financial Officer
INVESTOR:
Meissner + Wurst Zander Holding GmbH
By: /s/ Alexander von Witzleben
---------------------------
Its:
---------------------------
JENOPTIK AG
By: /s/ Alexander von Witzleben
---------------------------
Its:
---------------------------
/s/ Robert J. Therrien
-------------------------------
Robert J. Therrien
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LIST OF EXHIBITS
Exhibit A -Schedule of Gross Margins
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