<PAGE>
As filed with the Securities and Exchange Commission on October 6, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
---------------------------
LECROY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-2507777
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
700 CHESTNUT RIDGE ROAD, CHESTNUT RIDGE, NEW YORK 10977 (914) 425-2000
(Address and telephone number of registrant's principal executive offices)
LUTZ P. HENCKELS, PRESIDENT AND CHIEF EXECUTIVE OFFICER
LECROY CORPORATION
700 CHESTNUT RIDGE ROAD
CHESTNUT RIDGE, NEW YORK 10977
(914) 425-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service and
registrant's principal executive offices)
Copy to:
ROGER D. FELDMAN, ESQ.
BINGHAM DANA LLP
150 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110
(617) 951-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
---------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE (1) OFFERING PRICE REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value......... 95,181 shares $41.625 $3,961,909 $1200
====================================================================================================================
</TABLE>
(1) Calculated in accordance with Rule 457(c) based on the average of the
high and low prices reported on the Nasdaq National Market on
September 22, 1997.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
===============================================================================
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
Subject to Completion, dated October 6, 1997
PROSPECTUS
LECROY CORPORATION
95,181 Shares
Common Stock, $.01 Par Value
--------------------
This Prospectus of LeCroy Corporation, a Delaware corporation (the "Company" or
"LeCroy"), relates to up to 95,181 shares (the "shares") of the Company's common
stock, par value $.01 per share (the "Common Stock"), being sold by certain
stockholders of the Company (the "Selling Stockholders") for their own accounts.
See "Selling Stockholders." The Company will not receive any proceeds from the
sale of Shares by the Selling Stockholders. The Common Stock is traded on The
Nasdaq Stock Market's National Market (the "Nasdaq National Market") under the
symbol "LCRY." On October 3, 1997, the last reported sale price of the Common
Stock on the Nasdaq National Market was $42.50 per share.
The Company will pay all of the expenses incident to the registration, offering
and sale of the Shares to the public hereunder (other than commissions, fees and
discounts of underwriters, brokers, dealers and agents), estimated to be
$10,200.
All or a portion of the Shares may be disposed of by the Selling Stockholders
hereunder from time to time in one or a combination of the following
transactions: (a) transactions (which may involve block transactions) on the
Nasdaq National Market, or otherwise, at market prices prevailing at the time of
sale or at prices related to such prevailing market prices; or (b) privately
negotiated transactions at negotiated prices, including underwritten offerings.
The Selling Stockholders may effect such transactions by selling the Shares
directly to purchasers or by selling the shares to or through underwriters,
brokers or dealers, and such underwriters, brokers or dealers may receive
compensation in the form of discounts, concessions or commissions from the
Selling Stockholders or the purchasers of the Shares for whom such underwriters,
brokers or dealers may act as agent, or to whom they sell as principal, or both
(which compensation to a particular underwriter, broker or dealer might be in
excess of customary commissions or be changed from time to time). The Selling
Stockholders and the underwriters, brokers, dealers or agents who participate in
a sale of the Shares may be deemed "underwriters" within the meaning of Section
2(11) of the Securities Act and the commissions paid or discounts allowed to any
of the underwriters, brokers, dealers or agents in addition to any profits
received on resale of the Shares if any of the underwriters, brokers, dealers or
agents should purchase any Shares as a principal may be deemed to be
underwriting discounts or commissions under the Securities Act. See "Plan of
Distribution."
Certain of the underwriters, brokers, dealers or agents may have other business
relationships with the Company and/or its affiliates in the ordinary course.
1
<PAGE>
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS AND
CAUTIONARY STATEMENT" ON PAGE 4.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
-----------
No dealer, salesperson or other person has been authorized to give any
information or to make any representations not contained in this Prospectus or
any Prospectus Supplement, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. Neither this Prospectus nor any Prospectus Supplement constitutes an
offer to sell or a solicitation of an offer to buy any of the securities offered
hereby in any jurisdiction to any person to whom it is unlawful to make such an
offer in such jurisdiction. Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made thereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or thereof.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Underwriting Discounts Proceeds to Selling
Price to Public and Commissions Stockholders
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Share (l) (1)(2) (1)(2)
- ------------------------------------------------------------------------------------------------------------------------
Total (1) (1)(2) (1)(2)
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Selling Stockholders may from time to time effect the sale of the
Shares at prices and at terms then prevailing or at prices related to the
then-current market price, or in negotiated transactions. Under the
securities laws of certain states, the Shares may be sold in such states
only through registered or licensed brokers or dealers. See "Plan of
Distribution" and "Selling Stockholders."
(2) The Company has agreed to prepare and file this Prospectus and the
related Registration Statement and supplements and amendments thereto
required by the Securities Act with the Securities and Exchange
Commission, and to deliver copies of the Prospectus to the Selling
Stockholders. The expenses incurred in connection with the same,
estimated at $10,200, will be borne by the Company. The Selling
Stockholders and any broker-dealers, agents or underwriters who
participate in a sale of the Shares may be deemed "underwriters" within
the meaning of the Securities Act, and any commissions paid or discounts
allowed to, and any profits received on resale of the Shares by, any of
them may be deemed to be underwriting discounts or commissions under the
Securities Act. See "Plan of Distribution." The Company will not be
responsible for any discounts, concessions, commissions or other
compensation due to any broker or dealer in connection with the sale of
any of the shares offered hereby, which expenses will be borne by the
Selling Stockholders.
IN CONNECTION WITH THIS OFFERING, CERTAIN UNDERWRITERS (AND SELLING GROUP
MEMBERS) MAY ENGAGE IN PASSIVE MARKET MAKING TRANSACTIONS IN THE COMMON STOCK ON
NASDAQ IN ACCORDANCE WITH RULE 103 OF REGULATION M. SEE "PLAN OF DISTRIBUTION."
The date of this Prospectus is __________ , 1997.
2
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files
periodic reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information concerning the Company may be inspected and copies may be obtained
(at prescribed rates) at public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the regional offices of the Commission located at Seven World Trade
Center, 13th Floor, New York, New York 10048 and at Northwest Atrium Center, 500
W. Madison Street, Suite 1400, Chicago, Illinois 60661-2511. In addition,
electronically filed documents, including reports, proxy and information
statements and other information regarding the Company, can be obtained from the
Commission's Web site at: http://www.sec.gov. The Company's Common Stock is
listed on the Nasdaq National Market, and reports, proxy statements and other
information concerning the Company can also be inspected at the offices of the
National Association of Securities Dealers, Inc. at 1735 K Street, Washington,
D.C. 20006.
The Company has filed a Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act with the Commission with respect to the
Common Stock being offered pursuant to this Prospectus. As permitted by the
rules and regulations of the Commission, this Prospectus omits certain of the
information contained in the Registration Statement. For further information
with respect to the Company and the Common Stock being offered pursuant to this
Prospectus, reference is hereby made to such Registration Statement, including
the exhibits filed as part thereof. Statements contained in this Prospectus
concerning the provisions of certain documents filed with, or incorporated by
reference in, the Registration Statement are not necessarily complete, each such
statement being qualified in all respects by such reference. Copies of all or
any part of the Registration Statement, including the documents incorporated by
reference therein or exhibits thereto, may be obtained upon payment of the
prescribed rates at the offices of the Commission set forth above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There is incorporated herein by reference the Annual Report on Form 10-K of the
Company for the Company's 1997 fiscal year filed with the Commission pursuant to
Section 13(a) of the Exchange Act.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Common Stock shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing such documents. Any statement contained herein or in a document,
all or a portion of which is incorporated or deemed to be incorporated by
reference herein, shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document or portion thereof which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY BENEFICIAL
OWNER, TO WHOM A PROSPECTUS IS DELIVERED, UPON WRITTEN OR ORAL REQUEST OF SUCH
PERSON, A COPY OF ANY OR ALL OF THE INFORMATION THAT HAS BEEN INCORPORATED BY
REFERENCE HEREIN (OTHER THAN EXHIBITS TO THE INFORMATION UNLESS SUCH EXHIBITS
ARE INCORPORATED BY REFERENCE INTO THE INFORMATION THAT THE PROSPECTUS
INCORPORATES). SUCH WRITTEN REQUESTS SHOULD BE ADDRESSED TO LeCROY CORPORATION,
ATTENTION: INVESTOR RELATIONS, 700 CHESTNUT RIDGE ROAD, CHESTNUT RIDGE, NEW YORK
10977. TELEPHONE REQUESTS MAY BE DIRECTED TO THE INVESTOR RELATIONS DEPARTMENT
AT (914) 578-6021.
3
<PAGE>
RISK FACTORS AND CAUTIONARY STATEMENT
An investment in the Shares being offered herein involves a high degree of risk.
Prospective investors should consider carefully the risk factors contained in
the Annual Report on Form 10-K of the Company for the fiscal year ended June 30,
1997 (including without limitation those risks and uncertainties discussed in
the section titled "Other factors which may affect future operations" of the
Company's 1997 Annual Report to Stockholders as incorporated by reference in the
Form 10-K), each of which are incorporated herein by reference, before
purchasing the Shares offered hereby.
The documents incorporated by reference in this Prospectus contain, and
additional statements issued by the Company from time to time in public filings
or press releases or publicly made orally by officers of the Company with
respect to the Company contain or may contain, "forward-looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995. Such
statements are subject to certain risks and uncertainties, including without
limitation those discussed in the sections referred to above of the Company's
1997 Annual Report to Stockholders. Such forward-looking statements speak only
as of the date on which they are made, and the Company cautions readers not to
place undue reliance on such statements.
THE COMPANY
LeCroy Corporation develops, manufactures and sells signal analyzers,
principally high-performance digital oscilloscopes and related products. Digital
oscilloscopes capture electronic signals, convert them to digital form and
perform sophisticated measurements and analyses. The Company's digital
oscilloscope products are used by design engineers and researchers in a broad
range of industries, including electronics, computers and communications.
The Company's first business objective is to become a leading supplier of
high-performance digital oscilloscopes. The Company's second business objective
is to participate in broader markets by the use, directly and through licensing
and other arrangements with other manufacturers, of the Company's core
acquisition technology in dedicated signal analyzers.
The Company will acquire, through its wholly-owned subsidiary, Preamble
Acquisition Corp., a Delaware corporation ("Preamble Acquisition Corp."),
substantially all of the assets of Preamble Instruments, Inc., an Oregon
corporation ("Preamble") pursuant to the terms of an Asset Purchase Agreement,
dated October 3, 1997. Pursuant to the terms of the Asset Purchase Agreement,
the aggregate purchase price for the assets is $1,818,000, to be paid in the
form of $411,000 in cash and 35,181 shares of the Company's Common Stock. In the
event that on the closing date the market value of the 35,181 shares of Common
Stock is less than $1,407,000 (any such difference, the "Deficiency"), the
Company will pay additional consideration in cash in an amount equal to such
Deficiency. The assets to be acquired include all tangible and intangible assets
of Preamble including fixed assets, inventories, equipment, trade receivables,
products and technology. The liabilities to be assumed by the Company include
Preamble's obligations under it real property lease, certain equipment leases,
certain third-party trade liabilities, and other accrued obligations pertaining
to the acquired assets. The transaction will be accounted for as a purchase. The
acquired assets will be held by Preamble Acquisition Corp. which will change its
name to "Preamble Instruments, Inc." after the closing.
The Company was founded and incorporated in the State of New York in 1964 and
reincorporated in the State of Delaware in 1995. The Company's principal
executive offices are located at 700 Chestnut Ridge Road, Chestnut Ridge, New
York 10977, and its phone number at that location is (914) 425-2000.
4
<PAGE>
SELLING STOCKHOLDERS
The Selling Stockholders will acquire their shares of the Company Common Stock
in a transaction exempt from the registration requirement of the Securities Act,
in connection with an Asset Purchase Agreement, dated as of October 3, 1997,
pursuant to which the Company, through its wholly-owned subsidiary, Preamble
Acquisition Corp., will purchase substantially all of the assets of Preamble, in
exchange for $411,000 in cash (the "Cash Consideration") and 35,181 shares of
the Company's Common Stock (the "Stock Consideration"). The Cash Consideration
will be used by Preamble to pay off certain liabilities. The Stock Consideration
will be distributed to the Selling Stockholders by Preamble immediately after
the closing. Under the terms of the Asset Purchase Agreement, certain of the
Selling Stockholders employed by Preamble Acquisition Corp. after the closing,
will be entitled to receive certain additional amounts based on the achievement
of certain performance criteria ("Earn-out Amounts"). The maximum aggregate
Earn-out Amount is $1,200,000. Any Earn-out Amounts accrued may be paid, at the
option of Preamble Acquisition Corp., either by delivery of cash or cash
equivalents or by delivery of additional shares of Company Common Stock with a
market value equivalent to the value of the Earn-out Amount. Sixty thousand of
the Shares to which this Prospectus relates are shares reserved by the Company
for payment of any Earn-out Amounts which may accrue. Under the terms of the
Asset Purchase Agreement, the Company has agreed to use its best efforts to file
with the Securities and Exchange Commission a registration statement on Form S-3
with respect to the Common Stock comprising the Stock Consideration and an
additional 60,000 shares of Common Stock to be held in reserve by the Parent for
the purpose of paying of any Earn-out Amounts that accrue.
The term Selling Stockholders includes the holders listed below and the
beneficial owners of the Shares and their transferees, pledgees, donees and
other successors.
As of October 6, 1997, except as noted below, the Selling Stockholders held of
record no shares of the Company's outstanding Common Stock. No Selling
Shareholder has within the past three years held any position, office or had any
other material relationship with the Company or its affiliates.
As of October 6, 1997 there were 6,854,003 shares of the Common Stock of the
Company issued and outstanding.
The following table sets forth certain information regarding the beneficial
ownership of the Common Stock as of October 6, 1997 and as adjusted to reflect
the sale of all of the Common Stock offered hereby by the Selling Stockholders.
<TABLE>
<CAPTION>
Name of Selling Shares Owned Shares to be Owned
Stockholders Prior to Offering Shares Offered (1) After Offering
- -------------------------- ------------------ ------------------ ------------------
<S> <C> <C> <C>
Alfred H. Schamel(2) 0 27,837 0
Timothy W. Ruvo(3) 0 27,837 0
John L. Addis(4) 0 13,916 0
Angus J. McCamant(5) 0 2,621 0
Robert E. Metzler 0 9,516 0
Bruce E. Hofer 0 9,516 0
Karl Evenson 0 3,938 0
</TABLE>
(1) See "Plan of Distribution."
(2) Includes 23,130 shares representing the estimated maximum number of
shares that may be paid to Mr. Schamel in the event the full Earn-out Amount is
earned and paid in shares of Common Stock.
(3) Includes 23,130 shares representing the estimated maximum number of
shares that may be paid to Mr. Ruvo in the event the full Earn-out Amount is
earned and paid in shares of Common Stock.
(4) Includes 11,562 shares representing the estimated maximum number of
shares that may be paid to Mr. Addis in the event the full Earn-out Amount is
earned and paid in shares of Common Stock.
(5) Includes 2,178 shares representing the estimated maximum number of
shares that may be paid to Mr. McCamant in the event the full Earn-out Amount is
earned and paid in shares of Common Stock.
5
<PAGE>
PLAN OF DISTRIBUTION
The sale or distribution of the Shares may be effected directly to purchasers by
the Selling Stockholders as principals or through one or more underwriters,
brokers, dealers or agents from time to time in one or more transactions (which
may involve crosses or block transactions) (i) on any exchange or in the
over-the-counter market, (ii) in transactions otherwise than in the
over-the-counter market or (iii) through the writing of options (whether such
options are listed on an options exchange or otherwise) on, or settlement of
short sales of, the Shares. Any of such transactions may be effected at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, at varying prices determined at the time of sale or at negotiated
or fixed prices, in each case as determined by the Selling Stockholders or by
agreement between the Selling Stockholders and underwriters, brokers, dealers or
agents, or purchasers. The Selling Stockholders may effect such transactions by
selling the Shares directly to purchasers or by selling shares to or through
underwriters, brokers or dealers and such underwriters, brokers or dealers may
receive compensation in the form of discounts, concessions or commissions from
the Selling Stockholders or the purchasers of the Shares for whom such
underwriters, brokers or dealers may act as agent, or to whom they sell as
principal, or both (which compensation to a particular underwriter, broker or
dealer might be in excess of customary commissions or be changed from time to
time). The Selling Stockholders and any underwriters, brokers, dealers or agents
who participate in a sale of the Shares may be deemed "underwriters" within the
meaning of Section 2(11) of the Securities Act and the commissions paid or
discounts allowed to any of such underwriters, brokers, dealers or agents in
addition to any profits received on resale of the Shares if any of such
underwriters, brokers, dealers or agents should purchase any Shares as a
principal may be deemed to be underwriting discounts or commissions under the
Securities Act.
Certain of any such underwriters, dealers, brokers or agents may have other
business relationships with the Company and/or its affiliates in the ordinary
course.
Under the securities laws of certain states, the Shares may be sold in such
states only through registered or licensed brokers or dealers.
The Company will pay all of the expenses incident to the registration, offering
and sale of the Shares to the public hereunder other than commissions, fees and
discounts of underwriters, brokers, dealers and agents. The Company has agreed
to indemnify the Selling Stockholders and their officers, directors and
controlling persons (within the meaning of the Securities Act) against certain
liabilities, including liabilities under the Securities Act. The Company will
not receive any of the proceeds from the sale of any of the Shares by the
Selling Stockholders.
If all or a portion of the Shares are offered through an underwritten offering,
the terms of such underwritten offering, including the initial public offering
price, the names of the underwriters and the compensation, if any, of such
underwriters, will be set forth in an accompanying Prospectus Supplement.
Until the distribution of the Shares is completed, rules of the Commission may
limit the ability of any underwriters and any other person participating in the
distribution of the Shares to bid for and purchase the Common Stock. As an
exception to these rules, underwriters are permitted to engage in certain
transactions that stabilize the price of the Common Stock. Such transactions
consist of bids or purchases for the purpose of pegging, fixing or maintaining
the price of the Common Stock. If any underwriters create a short position in
the Shares in connection with the offering, selling more Shares than are set
forth on the cover page of this Prospectus, the underwriters may reduce that
short position by purchasing shares of Common Stock in the open market.
Purchases of the Common Stock for the purpose of stabilization or to reduce a
short position could cause the price of the Common Stock to be higher than it
might be in the absence of such purchases. In addition, rules of the Commission
may limit the timing of purchases and sales of shares of Common Stock by the
Selling Stockholders and any other such person. All of the foregoing may limit
the marketability of the Shares and the ability of any underwriter, broker,
dealer or agent to engage in market making activities.
6
<PAGE>
CERTAIN LEGAL MATTERS
The validity of the offered Common Stock will be passed upon for the Company by
Bingham Dana LLP, 150 Federal Street, Boston, Massachusetts. Roger D. Feldman, a
partner of Bingham Dana LLP, is an Assistant Secretary of the Company. As of
October 6, 1997, Mr. Feldman held as trustee of certain trusts an aggregate of
119,751 shares of Common Stock. Mr. Feldman disclaims beneficial ownership of
such shares. Brian Keeler, a partner of Bingham Dana LLP, is an Assistant
Secretary of the Company.
EXPERTS
The consolidated financial statements of LeCroy Corporation appearing in
LeCroy's Annual Report (Form 10-K) for the year ended June 30, 1997, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon, included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
7
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting compensation, are:
Securities and Exchange Commission Registration Fee ..... $1,200
Nasdaq National Market Fees ............................. $2,000
Fees of Registrar and Transfer Agent .................... 500*
Legal Fees and Expenses ................................. $2,000*
Accounting Fees and Expenses ............................ $4,000*
Miscellaneous ........................................... 500*
-------
Total ............................................... $10,200
=======
- -----------
* Estimates
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent and under the circumstances set forth therein.
The Amended and Restated By-Laws of the Company provide for indemnification of
officers and directors of the Company and certain other persons against
liabilities and expenses incurred by any of them in certain stated proceedings
and under certain stated conditions.
The Company has entered into indemnification agreements with its executive
officers and directors, pursuant to which the Company has agreed to indemnify
such persons to the fullest extent permitted by law, and providing for certain
other protections.
The Company maintains insurance for the benefit of its directors and officers
insuring such persons against certain liabilities, including liabilities under
applicable securities laws.
ITEM 16. EXHIBITS.
4.1 Specimen Certificate for Shares of the Registrant's Common Stock,
par value $.01 per share, incorporated by reference to Exhibit 4.1
to the Company's Registration Statement on Form S-1 (Reg. No. 33-
95620).
4.2 Asset Purchase Agreement, dated as of October 3, 1997, between
the Registrant, the Selling Stockholders and Preamble.
5 Opinion of Bingham Dana LLP, counsel to the Company.
23.1 Consent of Bingham Dana LLP (included in Exhibit 5).
23.2 Consent of independent auditors, Ernst & Young LLP.
24 Power of Attorney (included on signature page).
ITEM 17. UNDERTAKINGS.
(A) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant
<PAGE>
to section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(B) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(C) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(D) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(E) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE VILLAGE OF CHESTNUT RIDGE, STATE OF NEW YORK, ON SEPTEMBER
29, 1997.
LECROY CORPORATION
By /s/ LUTZ P. HENCKELS
-------------------------------
LUTZ P. HENCKELS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints John C. Maag
and Roger D. Feldman, and each of them singly, acting alone and without the
other, his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution in each of them, for him and his name, place and
stead, and in any and all capacities, to do and perform any and all acts and to
sign any and all amendments (including without limitation post-effective
amendments) to this registration statement on Form S-3 and to file the same,
with all exhibits thereto and other documents in connection therewith necessary
or advisable to enable the Registrant to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission in respect thereof, which amendments may make such other
changes in the Registration Statement as the aforesaid attorney-in-fact
executing the same deems appropriate.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE CAPACITY(-IES) DATE
--------- ------------- ----
<S> <C> <C>
/s/ WALTER O. LECROY, JR.
- ----------------------------- Chairman of the Board of Directors September 29, 1997
WALTER O. LECROY, JR. and Director
/s/ LUTZ P. HENCKELS
- ----------------------------- President, Chief Executive Officer September 29, 1997
LUTZ P. HENCKELS and Director
/s/ JOHN C. MAAG
- ----------------------------- Vice President--Finance, September 29, 1997
JOHN C. MAAG Chief Financial Officer,
Secretary and Treasurer
(Principal Financial and
Accounting Officer)
/s/ ROBERT E. ANDERSON
- ----------------------------- Director September 29, 1997
ROBERT E. ANDERSON
/s/ DOUGLAS A. KINGSLEY
- ----------------------------- Director September 29, 1997
DOUGLAS A. KINGSLEY
</TABLE>
<PAGE>
EXECUTION COPY
EXHIBIT 4.2
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT dated as of October ___, 1997 (the
"Effective Date") (together with all Schedules and Exhibits hereto, this
"Agreement"), by and among PREAMBLE ACQUISITION CORP., a Delaware corporation
(referred to hereinafter as the "Buyer"), LECROY CORPORATION, a Delaware
corporation (the "Parent"), PREAMBLE INSTRUMENTS, INC., an Oregon corporation
(the "Seller"), and each of the holders of the outstanding shares of capital
stock of the Seller listed on the signature pages hereto (each individually, a
"Stockholder" and collectively, the "Stockholders."
WHEREAS, the Buyer is a wholly-owed subsidiary of the Parent;
WHEREAS, the Stockholders own beneficially all of the issued and
outstanding shares of capital stock of the Seller;
WHEREAS, the Seller desires to sell and the Buyer desires to
purchase all the assets owned by the Seller and used in the Seller's business;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein set forth, the Buyer, the Parent, the Stockholders and the
Seller agree as follows:
1. PURCHASE AND SALE
1.1. Acquired Assets. Subject to the terms and conditions set forth
in this Agreement, at the Closing referred to in Section 4 hereof, the Seller,
and with respect to the Real Property Leases Alfred Schamel, Timothy Ruvo and
John Addis, shall sell, assign, transfer and deliver to the Buyer, and the Buyer
shall purchase, acquire and take assignment and delivery of, (i) all of the
assets of the Seller and the (ii) asset of Alfred Schamel, Timothy Ruvo and John
Addis represented by the Real Property Lease, including the following, all of
which assets are hereinafter referred to collectively as the "Acquired Assets"):
(a) All of the Seller's fixtures, hardware, machinery,
installations, equipment, furniture, tools, spare parts, supplies, materials and
other personal property including those items described on Schedule 1(a) to the
Disclosure Letter of the Seller and the Stockholders addressed to the Buyer of
even date herewith (the "Disclosure Letter") (the "Equipment");
<PAGE>
(b) The Seller's inventories including raw materials, work in
progress and finished goods, and including those items described on Schedule
1(b) to the Disclosure Letter (the "Inventory");
(c) All of the Seller's title to, interest in and rights under the
leases of personal property described on Schedule 1(c) to the Disclosure Letter
(the "Personal Property Leases");
(d) As of the Closing, all cash and deposits, bank accounts, money
market accounts, certificates of deposits, treasury bills, bonds, notes,
securities and similar assets ("Cash") and prepaid expenses made or incurred in
connection with the operation of the Seller's business (the "Deposits") other
than as described on Schedule 1(d) to the Disclosure Letter;
(e) Any lists in the possession of the Seller that identify
customers of the Seller (the "Accounts") and vendors from whom supplies are
purchased in connection with the operation of the business of the Seller;
(f) All of Alfred Schamel, Timothy Ruvo and John Addis title to,
interest in and rights under the leases of real property described on Schedule
1(f) to the Disclosure Letter (the "Real Property Leases");
(g) All of the Seller's rights under the purchase orders, contracts
and agreements described on Schedule 1(g) to the Disclosure Letter for the
purchase or sale of goods, materials and services (the "Contracts") and under
all other contracts, commitments and agreements of the Seller entered into in
the ordinary course of business prior to the Closing and which are expressly
accepted by the Buyer in writing at the Closing and all rights and privileges
described on Schedule 1(g) to the Disclosure Letter granted to the Seller by
third parties which relate to the operation by the Seller of its business,
including, all rights to operate, maintain and service the Equipment and to the
return of deposits on the Equipment;
(h) All of the Seller's transferable rights under the licenses and
permits described on Schedule 1(h) to the Disclosure Letter (the "Licenses");
(i) All of the Seller's uncertificated securities, license fees,
patents, patent applications, trademarks, trademark applications, trade names,
copyrights, copyright applications, rights to sue and recover for past
infringement of patents, trademarks and copyrights, computer programs
<PAGE>
computer software, engineering drawings, service marks, customer lists,
goodwill, designs, software, research and development, know-how, inventions
(whether or not patentable), trade secrets, and other intangible assets
including those described on Schedule 1(i) to the Disclosure Letter (the
"Intangibles");
(j) All books, records, drawings, schematics, documentation,
descriptions, product applications, test information, other data in whatever
format or medium, including all computer records, programs and data and business
and marketing plans, relating to the operation of the business or any of the
Seller's products (including those products currently under development or
currently contemplated); and
(k) All trade and other accounts and notes receivable including
those described on Schedule 1(k) to the Disclosure Letter (the "Receivables").
1.2. Excluded Assets. Notwithstanding the foregoing, the Seller is
not selling, and the Buyer is not purchasing pursuant to this Agreement and the
term "Acquired Assets" shall not include any of the assets set forth on Schedule
1.2 to the Disclosure Letter or any of the consideration payable to the Seller
pursuant to Sections 2.1, 9.1 or 9.2 or otherwise in respect of this Agreement.
2. PURCHASE PRICE.
2.1. Purchase Price. As full consideration for the Acquired Assets,
the Buyer shall pay to the Seller an amount equal to $1,818,000 (the "Purchase
Price"). The Purchase Price shall be paid as follows:
(a) delivery by the Buyer to the Seller, at the Buyer's
sole option, of either (i) shares of the Parent's common stock, $.01
par value per share ("Common Stock"), equivalent to $1,407,000 based
on the Average Market Value (as determined below), as adjusted
pursuant to Section 5 hereof (rounding up to the nearest whole
share) (the "Stock Consideration"), or (ii) cash or cash equivalents
in an amount equal to $1,407,000 ("Cash Equivalent Consideration"),
which Stock Consideration or Cash Equivalent Consideration, as the
case may be, shall be distributed by the Seller to the Stockholders
proportionately as set forth on Schedule 2.1(a) hereof;
<PAGE>
(b) delivery by the Buyer to the Seller of $411,000 in
cash (the "Cash Consideration") payable by check or wire transfer,
which Cash Consideration shall be applied by the Seller solely to
satisfy the obligations of the Seller set forth on Schedule 2.1(b)
to the Disclosure Letter; and
(c) in the event the Effective Date Average Market Value
is greater than the closing sales price reported on Nasdaq on the
trading day immediately preceding the Closing Date (the "Closing
Sales Price"), then delivery by the Buyer to the Seller of a cash
amount (the "Additional Cash Consideration") equal to the product of
(A) the difference of (i) the Effective Date Average Market Value
minus (ii) the Closing Sales Price multiplied by (B) the number of
shares of Common Stock the Seller receives on the Closing Date in
respect of the Stock Consideration, which Additional Cash
Consideration shall be distributed by the Seller to the Stockholders
proportionately as set forth on Schedule 2.1(a) to the Disclosure
Letter.
2.2. Average Market Value. For purposes of this Agreement, "Average
Market Value" shall mean the average closing sales price reported on the
National Association of Securities and Automated Quotation System ("Nasdaq").
For the purposes of this Section 2 such Average Market Value shall be determined
during the twenty (20) trading days immediately preceding the fifth trading day
prior to the Effective Date (the "Effective Date Average Market Value").
2.3. Allocation of Purchase Price. The parties hereto shall mutually
agree on the allocation of the Purchase Price among the Acquired Assets within
90 days after the Closing. The parties hereto agree that, for tax reporting
purposes, they shall report the transaction contemplated by this Agreement in
accordance with such allocation and shall not take a position for tax purposes
inconsistent therewith.
2.4. Earn-Outs. In addition to the Purchase Price, under certain
circumstances, as further described in Section 9 hereof, the Buyer may be
required to pay to the Seller certain additional amounts.
3. ASSUMPTION OF CERTAIN OBLIGATIONS OF SELLER. Except as set forth
in Schedule 3 to the Disclosure Letter hereto (the "Assumed Obligations"), the
Buyer shall not assume, and shall not be deemed to have assumed any liability or
obligation of the Seller whatsoever including any liabilities for taxes
attributable to periods
<PAGE>
prior to the Closing Date, for breaches of contract occurring prior to the
Closing Date, for claims arising out of any employee benefit plan or from
actions of Seller prior to the Closing Date, any agreement or practice of the
Seller prior to the Closing Date or out of any workmen's compensation claim, any
commissions or similar amounts due to any party or any claimed negligence of the
Seller or claimed infringement of intellectual property or other rights of any
person relating to any products or services sold by Seller prior to the Closing
Date. In furtherance of, but without limiting, the foregoing, the Buyer will not
assume any liabilities or obligations of the Seller (a) resulting from the
ownership, operation or condition of the Seller's business or assets related
thereto (including, without limitation, the Acquired Assets), or for any
liabilities or obligations resulting from any hazardous activity conducted on or
prior to the Closing Date, (b) to any retired or other former employees of the
Seller for salaries or benefits accrued prior to the Closing Date or (c) under
any agreements of the Seller with any employees providing for severance payments
in the event such employees are terminated by the Buyer after the Closing Date
("Excluded Liabilities").
4. CLOSING.
4.1. Closing. Subject to the provisions of Sections 12, 13, and 14,
a closing (the "Closing") shall be held simultaneously at the offices of
Bingham, Dana & Gould LLP, 150 Federal Street, Boston, Massachusetts and Kennedy
& Kennedy LLP 888 S.W. Fifth Avenue, Portland, Oregon, at 11:00 A.M. (Boston
time) on October ___, 1997 or as soon as possible thereafter on such other date
as may be agreed to by the parties. The date on which the Closing is actually
held hereunder is sometimes referred to herein as the "Closing Date." The
Closing shall be effective as of the Closing Date.
4.2. Transactions at the Closing. At the Closing of the purchase and
sale of the Acquired Assets (the following documents and agreements together
with the Disclosure Letter are referred to herein as the "Related Agreements"):
(a) except as set forth on Schedule 4.2(a) to the Disclosure Letter
the Seller shall duly execute and deliver to the Buyer or its nominee or
nominees such deeds, bills of sale, certificates of title and other instruments
of assignment or transfer with respect to the Acquired Assets as the Buyer may
reasonably request and as may be necessary to vest in the Buyer good and
marketable title to all of the Acquired Assets,
<PAGE>
in each case subject to no Encumbrance (as defined in Section 6.3 below),
including but not limited to a Warranty Bill of Sale substantially the form of
Exhibit A, respectively, hereto;
(b) the Buyer shall deliver the Purchase Price to the Seller;
(c) the Buyer and John Addis shall execute and deliver a Consulting
and Non-Competition Agreement substantially in the form of Exhibit B hereto;
(d) the Buyer and Alfred H. Schamel and the Buyer and Timothy W.
Ruvo shall each execute and deliver an Employment and Non-Competition Agreement
substantially in the form of Exhibit C hereto;
(e) Kennedy and Kennedy LLP, counsel to the Seller and the
Stockholders, shall deliver to the Buyer a written opinion, addressed to the
Buyer and dated the Closing Date, substantially in the form of Exhibit D hereto;
(f) unless waived by the Buyer in writing, the Seller shall deliver
to the Buyer evidence of receipt of all necessary third party consents, in form
and substance reasonably satisfactory to the Buyer, as may be necessary to
permit the consummation of the transactions contemplated by this Agreement and
any Related Agreement to which it is a party, without contravention or default.
(g) Bingham, Dana & Gould LLP, counsel to the Buyer, shall deliver
to the Seller a written opinion, addressed to the Seller and dated the Closing
Date, substantially in the form of Exhibit E hereto.
5. ADJUSTMENTS. All personal property taxes with respect to the
Acquired Assets and all rent and other payments under or pursuant to the
Contracts shall be apportioned and shall be adjusted, as of the Closing Date,
and the net amount thereof shall be added to or deducted from, as the case may
be, that portion of the Purchase Price paid by the Buyer on the Closing Date. If
the amount of any item is not known at the time of Closing, it shall be
apportioned on a basis which is agreed to by the Buyer and the Seller prior to
the payment of the Purchase Price with a reapportionment when definitive data
are available. The Seller shall pay all sales, use and other transfer taxes
imposed by the State of Oregon with respect to the sale and the Buyer's purchase
of the Acquired Assets.
<PAGE>
6. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND EACH OF THE
STOCKHOLDERS. The Seller and each of the Stockholders, jointly and severally,
make to the Buyer the representations and warranties set forth in this Section 6
(other than the representations and warranties set forth in subsections 6.2, 6.7
and 6.17 that relate to the Stockholders in their individual capacities which
are made by each Stockholder severally only with respect to such individual
Stockholder provided however Alfred Schamel and Timothy Ruvo shall be jointly
and severally liable for the representations and warranties set forth in
subsections 6.2, 6.7 and 6.17 that relate to Alfred Schamel or Timothy Ruvo in
their individual capacities).
6.1. Organization of the Seller; Authority. The Seller is a
corporation duly organized and validly existing under the laws of the State of
Oregon. The Seller has no subsidiaries. The Seller has all requisite power and
authority to own and hold the Acquired Assets, to carry on its business and to
own or lease and operate its properties and operate its business as such
business is now conducted and such properties are now owned, leased or operated.
The Seller has all requisite power, authority and capacity to execute and
deliver this Agreement and all other agreements, documents and instruments
contemplated hereby and to carry out all actions required of it pursuant to the
terms of this Agreement and this Agreement has been duly executed and delivered
by the Seller and each of the Stockholders and constitutes the legal, valid and
binding obligation of the Seller and each of the Stockholders, enforceable
against the Seller and each of the Stockholders in accordance with its terms,
except as enforceability may be limited by the effect of any applicable
bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization,
marshaling, or other laws or rules of law affecting creditors' rights and
remedies generally and to general principals of equity. The Seller has obtained
all necessary authorizations and approvals from its Board of Directors and
stockholders required for the execution and delivery of this Agreement and any
Related Agreement to which it is a party and the consummation of the
transactions contemplated hereby and thereby.
6.2. Non-Contravention. Except as set forth on Schedule 6.2 to the
Disclosure Letter, neither the execution and delivery of this Agreement by the
Seller and each of the Stockholders nor the consummation by the Seller and each
of the Stockholders of the transactions contemplated hereby will constitute a
violation of, or be in conflict with, or constitute or create a default under,
or result in the
<PAGE>
creation or imposition of any Encumbrance (as defined in Section 6.3 below) upon
any property of the Seller (including any of the Acquired Assets) pursuant to
(a) the Articles of Incorporation or By-Laws of the Seller, each as amended to
date; (b) any material agreement or commitment to which the Seller or any
Stockholder is a party or by which the Seller or any Stockholder or any of the
Seller's properties (including any of the Acquired Assets) is bound or to which
the Seller or any Stockholder or any of such properties is subject and which
would materially adversely affect the Buyer or the Acquired Assets; or (c) any
statute or any judgment, decree, order, regulation or rule of any court or
governmental authority which would materially adversely affect the Buyer.
6.3. Title to Acquired Assets. Except as set forth on Schedule 6.3
to the Disclosure Letter, the Seller is the lawful owner of, has good and
marketable title to, and has the full right to sell, convey, transfer, assign
and deliver the Acquired Assets, without any restrictions of any kind
whatsoever. All of the Acquired Assets are entirely free and clear of any
security interests, liens, claims, charges, options, mortgages, debts, leases
(or subleases), conditional sales agreements, title retention agreements,
encumbrances of any kind or restrictions against the transfer or assignment
thereof (collectively, "Encumbrances"), and there are no filings in any registry
of deeds in any jurisdiction or under the Uniform Commercial Code or similar
statute in any jurisdiction showing the Seller as debtor which create or perfect
or which purport to create or perfect any Encumbrance in or on any of the
Acquired Assets. At and as of the Closing, the Seller will convey the Acquired
Assets to the Buyer by deeds, bills of sale, certificates of title and
instruments of assignment and transfer effective to vest in the Buyer, and the
Buyer will have, good and marketable title to all of the Acquired Assets, free
and clear of all Encumbrances.
6.4. Intellectual Property, Licenses, Etc. Schedule 6.4 to the
Disclosure Letter sets forth a true, correct and complete list, of all
trademarks, trademark rights, trade names, trade name rights, copyrights,
patents, patents rights, licenses, franchises, permits and authorizations held
by the Seller ("Intellectual Property"). To the best knowledge of the Seller and
the Stockholders, Schedule 6.4 to the Disclosure Letter sets forth all
Intellectual Property necessary for the conduct of Seller's business. To the
best knowledge of the Seller and each of the Stockholders, Seller has taken
reasonable measures to protect the propriety nature of each of the foregoing and
to maintain in confidence all trade secrets and confidential information that it
owns or
<PAGE>
uses. All of the foregoing are in full force and effect, and Seller is in
compliance with the foregoing without any known conflict with the valid rights
of others which could have a material adverse effect on the assets (including
the Acquired Assets), properties, liabilities, business, operations, results of
operation, condition (financial or otherwise) or prospects of the Seller or the
ability of the Seller to perform this Agreement, any Related Agreement to which
the Seller is a party or any of the transactions contemplated hereby or thereby.
6.5. Compliance with Applicable Laws. Except as provided in Schedule
6.5 to the Disclosure Letter, to the best knowledge of the Seller and each of
the Stockholders, the Seller has complied with every, and is not in default in
any respect under any, applicable law, statute, order, rule, regulation or
policy of, or agreement with, any federal, state or local governmental agency or
authority relating to the Seller, except where such default or noncompliance
would not result in a limitation on the conduct of the business of Seller, would
not cause, Seller to incur any financial penalty and would not otherwise result,
with respect to Seller, in any material adverse effect on the assets,
properties, liabilities, business, operations, results of operation, condition
(financial or otherwise) or prospects of the Seller or the ability of the Seller
to perform this Agreement, any Related Agreement to which the Seller is a party
or any of the transactions contemplated hereby or thereby, and Seller has not
received any notice of violation of, or commencement of any proceeding in
connection with any such violation, and does not know of any violation of, any
such law, statute, order, rule, regulation, policy or agreement which would have
such a result. Seller is not in violation of any provisions its Articles of
Incorporation or By-Laws.
6.6. Litigation, Etc. No action, suit, proceeding or investigation
is pending or, to the best knowledge of the Seller or any of the Stockholders,
threatened, relating to or affecting any of the Acquired Assets or relating to
or affecting the activities of the Seller carried on with any of the Acquired
Assets, or which questions the validity of this Agreement or challenges any of
the transactions contemplated hereby, nor, to the Seller's or any of the
Stockholder's knowledge, is there any basis for any such action, suit,
proceeding or investigation.
6.7. Brokers. The Seller has not retained, utilized or been
represented by any broker or finder in connection with the transactions
contemplated by this Agreement and the Related Agreements. No Stockholder has
retained, utilized or been represented by any broker or
<PAGE>
finder in connection with the transactions contemplated by this Agreement and
the Related Agreements.
6.8. Consents of Third Parties. Except as set forth on Schedule 6.2
to the Disclosure Letter, the Seller has no obligation to secure any consent
from any third party in order to permit the consummation of the transactions
contemplated by this Agreement or any Related Agreement to which it is a party.
6.9. Contracts. Each of the contracts listed on Schedule 1(g) to the
Disclosure Letter or any of the other Schedules to the Disclosure Letter is in
full force and effect, and neither the Seller nor any of the Stockholders has
any reason to believe that any contract is invalid or that any material breach
or default, or event or condition which with notice or the passage of time or
both would constitute such a breach or default, exists with respect thereto. The
Seller has performed all material obligations required to be performed by it to
date under each such contract. Subject to obtaining any necessary consents by
the other party or parties to any such contract (the requirement of any such
consent being reflected on Schedule 6.2 to the Disclosure Letter, no contract to
be assumed by the Buyer hereunder will be materially adversely affected by, or
terminate or lapse by reason of, the transactions contemplated by this
Agreement.
6.10. Environmental Matters. To the best knowledge of the Seller and
each of the Stockholders, the Seller is in compliance with all environmental
laws of the United States Environmental Protection Agency (the "EPA") and of
similar agencies in states in which it conducts business. There is no suit,
claim, action or proceeding now pending before any court, governmental agency or
board or other forum or, to the knowledge of Seller, threatened by any person or
entity (i) for alleged noncompliance with any environmental law, rule,
regulation or (ii) relating to the discharge or release into the environment of
any hazardous material or waste at or on a site owned, leased or operated by the
Seller.
6.11. Insurance. Schedule 6.11 to the Disclosure Letter sets forth a
complete list, and the Seller has heretofore provided, true, correct and
complete copies to Buyer of all currently effective insurance policies.
6.12. No Undisclosed Liabilities. Other than expenses incurred in
connection with the transactions contemplated by this Agreement, to the best of
the Seller's and each of the Stockholder's knowledge, the Seller
<PAGE>
has no liabilities or obligations of any nature (whether known or unknown and
whether absolute, accrued, contingent, or otherwise) and to the best of the
Seller's and each of the Stockholder's knowledge there is no basis for the
assertion against the Seller of any such liability or obligation, except for
liabilities or obligations reflected or reserved against in the September 15,
1997 balance sheets and current liabilities incurred in the ordinary course of
business since such date.
6.13. Taxes. The Seller is and at all times since its incorporation
has been, qualified as an S corporation (as defined in the Internal Revenue Code
of 1986, as amended, the "IRC") and has accurately prepared and duly and timely
filed all documents that it was required to file with the Internal Revenue
Service or any taxing authority. The Oregon Department of Revenue recognizes S
corporation status for state taxation purposes and affords such entities
pass-through tax treatment. The Seller is not currently being audited or
examined by any governmental body, nor have any deficiencies for any tax been
asserted against the Seller. No claim or inquiry with respect to any material
amount of taxes has been made within the past seven years by an authority in a
jurisdiction where the Seller did not file tax returns that it is or may be
subject to any tax by that jurisdiction. Without limiting the generality of the
foregoing, the Seller has withheld or collected and duly paid all taxes required
to have been withheld or collected and paid in connection with sales and use tax
obligations, and amounts paid or owing to any employee, independent contractor,
creditor, Stockholder or other person.
6.14. Absence of Certain Changes and Events. Except as set forth on
Schedule 6.14 to the Disclosure Letter, since September 15, 1997, the Seller has
conducted its business only in the ordinary course of business and there has not
been any:
(a) except in the ordinary course of business, payment or increase by the
Seller of any bonuses, salaries, commissions or other compensation to any
stockholder, director, officer, or employee or entry into any employment,
severance, or similar contract with any director, officer, or employee;
(b) adoption of, or increase in the payments to or benefits under, any
profit share, bonus, deferred compensation, savings, insurance, pension,
retirement, or other employee benefit plan for or with any employees of the
Seller;
<PAGE>
(c) damage to or destruction or loss of any asset or property of the
Seller, whether or not covered by insurance;
(d) except in the ordinary course of business, sale, lease, or other
disposition of any asset or property of the Seller or mortgage, pledge, or
imposition of any encumbrance on any asset or property of the Seller;
(e) cancellation or waiver of any claims or rights with a value to the
Seller in excess of $25,000;
(f) material change in the accounting methods used by the Seller;
(g) material adverse change in the financial condition, assets,
liabilities, earnings, business or prospects of the Seller, taken as a whole;
(h) indebtedness or other liability or obligation (whether absolute,
accrued, contingent or otherwise) incurred, or other transaction (except that
reflected in this Agreement) engaged in, by the Seller, except those in the
ordinary course of business which are, individually and in the aggregate to one
group of related parties, less than $25,000 in amount;
(i) acquisition of any assets other than in the ordinary course of
business; and
(j) agreement, whether oral or written, by the Seller to do any of the
foregoing.
6.15. Material Interests of Certain Persons. No officer, director or
stockholder of Seller, or any "associate" (as such term is defined in Rule 14a-1
under the Exchange Act) of any such officer, director or stockholder, has any
material interest in any material contract or property (real or personal),
tangible or intangible, used in or pertaining to the business of the Seller.
6.16. Disclosure. No representation, warranty or statement made by
the Seller in this Agreement or in any Exhibit, Schedule, Related Agreement,
written statement, certificate or other document delivered or to be delivered to
the Buyer pursuant hereto or in connection with the consummation of the
transactions contemplated hereby contains any
<PAGE>
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements contained therein not
misleading.
6.17. No Other Agreements. No Stockholder is party to or subject to
any non-compete, non-solicitation, non-disclosure or similar agreement with any
company, entity or other person that conflicts with or is in contravention of
his covenants and agreements under this Agreement or any Related Agreement to
which he is a party.
6.18. Bulk Transfer Law. The Seller is not required to comply with
the bulk transfer laws of the State of Oregon in respect of the transactions
contemplated by this Agreement and the other Related Agreements to which it is a
party.
7. REPRESENTATIONS AND WARRANTIES OF THE BUYER AND PARENT. The Buyer
and the Parent jointly and severally represent and warrant to the Seller and the
Stockholders as follows:
7.1. Organization and Standing of Buyer and Parent. Each of the
Buyer and Parent is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. Each of the Buyer and Parent
has full power and authority under its Certificate of Incorporation and By-Laws
and applicable laws to execute and deliver this Agreement and all Related
Agreements to which it is a party and to consummate the transactions
contemplated hereby and thereby. This Agreement and all Related Agreements to
which the Buyer or Parent is a party have been duly executed and delivered by
the Buyer or the Parent, as the case may be, and constitutes the legal, valid
and binding obligation of the Buyer or the Parent, as the case may be,
enforceable against the Buyer or the Parent, as the case may be, in accordance
with its terms except as enforceability may be limited by the effect of any
applicable bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization, marshaling, or other laws or rules of law affecting creditors'
rights and remedies generally and to general principals of equity. Each of the
Buyer and Parent has obtained all necessary authorizations and approvals from
its Board of Directors and stockholders required for the execution and delivery
of this Agreement, all Related Agreements to which it is a party and the
consummation of the transactions contemplated hereby and thereby.
7.2. Non-Contravention. Neither the execution and delivery of this
Agreement by the Buyer or the Parent nor the consummation by the
<PAGE>
Buyer and the Parent of the transactions contemplated hereby will constitute a
violation of, or be in conflict with, constitute or create a default under, or
result in the creation or imposition of any liens upon any property of the Buyer
or the Parent pursuant to (a) the Certificate of Incorporation or By-Laws of the
Buyer or the Parent as the case may be, each as amended to date; (b) any
material agreement or commitment to which the Buyer or the Parent is a party or
by which the Buyer or the Parent or any of its respective properties is bound or
to which the Buyer or the Parent or any of its respective properties is subject;
or (c) any statute or any judgment, decree, order, regulation or rule of any
court or governmental authority relating to the Buyer or the Parent which would
materially adversely affect the Buyer and the Parent taken as a whole.
7.3. Stock Consideration. As of the Closing Date, after giving
effect to the transactions contemplated hereby and by the Related Agreements,
the shares of Common Stock of the Parent comprising the Stock Consideration will
be duly authorized, validly issued, fully paid and nonassessable.
7.4. Third Party Consents. Neither the Buyer nor the Parent has any
obligation to secure any consent from any third party in order to permit the
consummation of the transactions contemplated by this Agreement or any Related
Agreement to which it is a party.
7.5. Brokers. Neither the Buyer nor the Parent has retained,
utilized or been represented by any broker or finder in connection with the
transactions contemplated by this Agreement.
7.6. Disclosure. No representation, warranty or statement made in
this Agreement, any Related Agreement, or any Exhibit, Schedule, agreement,
certificate, written statement or document furnished by or on behalf of the
Buyer or Parent in connection herewith or therewith contains any untrue
statement of material fact or omits to state a material fact required to be
stated therein or necessary to make the statements contained therein not false
or misleading.
8. SELLER AND STOCKHOLDERS POST-CLOSING COVENANTS.
8.1 Non-Solicitation; Covenant Not To Compete. The Seller and each
of the Stockholders covenants that for a period commencing on the Closing Date
and ending on the third anniversary of the Closing Date (subject to such period
being shortened or extended pursuant to Sections
<PAGE>
8.1(d) or (c) below) the Seller or such Stockholder, as the case may be, shall
not, directly or indirectly as a stockholder, investor, partner, director,
officer, employee or otherwise (except in his capacity as an employee of or
consultant to the Buyer or any of Buyer's affiliates or as a holder of 1% or
less of the issued and outstanding stock in any company whose stock is publicly
traded (a "Permitted Capacity")):
(a) solicit or attempt to induce any employee of the Buyer to
terminate his or her employment with Buyer or any affiliate of the Buyer; or
(b) engage in a Competitive Business in the United States. For
purposes of this Agreement, a "Competitive Business" means the business of the
Seller as conducted or contemplated as of the Closing Date including the design
and manufacturing of (i) differential amplifiers with or without precision DC
offset sources/generators) and (ii) current probes, differential probes, probes
matched in phase or delay, and power probes; provided that instrumentation
intended for use in audio test applications is not considered a Competitive
Business.
(c) Notwithstanding the foregoing, any Key Person whose employment
terminates other than by reason of such Key Person's resignation shall be bound
by the covenants set forth in this Section 8.1 only during the period such Key
Person is paid his salary (as in effect on the date of termination of his
employment).
(d) Each of the parties hereto agrees that the periods of time and
the geographic area and the scope of activities applicable to or covered by this
Section 8.1 are reasonable, in view of the benefits to the Seller and the
Stockholders as a result of the arrangements entered into in connection with the
purchase of the Acquired Assets hereunder, the geographic scope and nature of
the business in which the Seller, and the Buyer are engaged, the Stockholder's
knowledge of the business of the Seller and the Stockholders' relationship with
customers of the Seller. However, if such period, area or scope should be
adjudged unreasonable in any judicial proceeding, then the period of time shall
be reduced by such number of months, such area shall be reduced by elimination
of such portion of such area, or such scope shall be reduced by such activities,
or all of foregoing, as are deemed unreasonable, so that this covenant may be
enforced in such area and during such period of time and as to such activities
as are adjudged to be reasonable. The time periods provided for in this Section
8.1 shall be extended for a period of time in which the Seller or any
Stockholder is found by any court of
<PAGE>
competent jurisdiction to be in violation of any provisions of this Section 8.1.
8.2. Change of Seller Name. The Seller and the Stockholders shall
within five (5) business days of the Closing Date take all steps necessary to
change the Seller's name to a name which does not include the word "Preamble."
Seller acknowledges Buyer intends to operate the business of Preamble
Acquisition Corp. under the name "Preamble Instruments, Inc." Seller consents to
use by the Buyer of the name "Preamble Instruments, Inc." or any abbreviation or
variation of the same.
9. BUYER AND PARENT POST-CLOSING COVENANTS.
9.1. Active Differential Probe Shipping Earn-Out. If during the 1997
calendar year, the Seller ships pursuant to valid purchase orders/contracts at
least twenty (20) Active Differential Probes (LeCroy OEM), each fully functional
and compliant with the specifications dated April 25, 1997 (as such
specifications may from time to time be amended or modified in writing by mutual
agreement of the Seller and the Parent), the Buyer shall pay to the Seller on
January 15, 1998, an amount equal to $100,000, such amount to be paid by
delivery to the
<PAGE>
Seller at the Buyer's sole option of either (i) a number of shares of Common
Stock equivalent to $100,000 (rounding up to the nearest whole share), based on
the Average Market Value or (ii) cash or cash equivalents in an amount equal to
$100,000. For this purpose, Average Market Value shall be determined during the
twenty (20) trading days up to and including January 7, 1998.
9.2. Sales Earn-Out. (a) Subject to any adjustments pursuant to
subsection 9.2(b) below, on each Payment Date identified in the table below, the
Buyer shall pay to the Seller an amount (the "Earn-out Amount") equal to the
Adjusted Sales Amount for the last full fiscal year of the Parent immediately
preceding such date. For purposes hereof, the "Adjusted Sales Amount" shall
equal fifty-five percent (55%) of the amount by which Net Preamble Sales exceed
the Threshold (as determined by reference to the table below):
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------------------
Parent
Payment Fiscal
Date Year Period Threshold
---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
September 30, 1998 1998 June 29, 1997 to June 27, 1998 $1,000,000
---------------------------------------------------------------------------------------------------------
September 30, 1999 1999 June 28, 1998 to July 3, 1999 $1,200,000
---------------------------------------------------------------------------------------------------------
October 2, 2000 2000 July 4, 1999 to July 1, 2000 $1,200,000
---------------------------------------------------------------------------------------------------------
October 1, 2001 2001 July 2, 2000 to June 30, 2001 $1,200,000
---------------------------------------------------------------------------------------------------------
September 30, 2002 2002 July 1, 2001 to June 29, 2002 $1,200,000
---------------------------------------------------------------------------------------------------------
</TABLE>
(b) Any Earn-out Amount payable on the first three Payment Dates
shall be proportionately reduced by (i) the Ownership Percentage of any Key
Person (other than John Addis) whose employment by the Buyer or any other Buyer
Party terminates for any reason other than a termination without Cause and other
than as a result of death or Disability prior to the last day of the period to
which it relates with respect to such Earn-Out Amount (ii) the Ownership
Percentage of John Addis should Mr. Addis cease to be a consultant of the Buyer
or any other Buyer Party prior to December 31, 1998 other than as a result of
death or Disability and (iii) the Ownership Percentage of Angus McCamant should
Mr. McCamant cease to be an employee of the Buyer or any Buyer Party prior to
the last day of the period to which it relates with respect to such Earn-Out
Amount. There shall be no reduction in any Earn-out Amounts in the event the
employment of any Key Person (other than John Addis) is terminated without Cause
or in the event the employment of any Key Person or the consultancy or John
Addis terminates as a result of his death or Disability.
(c) The Earn-out Amount due, if any, shall be paid by delivery to the
Seller at the Buyer's sole option of either (i) a number of shares of
<PAGE>
Common Stock equivalent to the applicable Earn-out Amount based on the Average
Market Value (rounding up to the nearest whole share) or (ii) cash or cash
equivalents in an amount equal to the applicable Earn-out Amount. For the
purpose of this Section 9, Average Market Value shall be determined during the
twenty (20) trading days immediately preceding the fifth (5th) trading day prior
to the applicable Payment Date. Notwithstanding the foregoing provisions of this
Section 9.2, the maximum Earn-Out Amount shall under no circumstance exceed
$1,200,000.
(d) In the event of a sale of all or substantially all of the assets
or outstanding capital stock of the Buyer, Buyer shall pay to the Seller on the
closing date of such sale an amount equal to (i) $1,200,000 less (ii) the
aggregate of all Earn-out amounts paid to Seller pursuant to Section 9.2 as of
the closing date of such sale.
(e) In the event any Key Person's employment is terminated by reason
of such Key Person's death, the Earn-out Amount otherwise payable to such Key
Person shall be paid to such Key Person's estate.
(f) For purposes hereof, (i) the term "Net Preamble Sales" for any
period shall mean total sales of Preamble Products shipped pursuant to valid
purchase orders/contracts during such period less returns and allowances,
freight out and cash discounts; (ii) the term "Key Person" shall mean any of
Alfred H. Schamel, Timothy W. Ruvo, and John Addis; (iii) the term "Preamble
Products" shall mean amplifier Models 1850, 1855, 1822, 1820 and LeCroy OEM ADP
and versions 1870 and 1860 and probes XC100, XC200, XC300, XC350, XCP5100 and
A101 including any improved or substituted versions of such amplifiers and
probes (other than "new generation" improvements resulting in substantially
increased functionality); (iv) the term "Ownership Percentage" shall mean with
respect to any Key Person, the percentage set forth opposite such Key Person's
name on Schedule 9.2(f) to the Disclosure Letter; (v) the term "Buyer Party"
shall mean any of the Buyer, the Parent or any of their respective affiliates;
(vi) the term "Cause" shall have the meaning assigned to such term in the
applicable Key Person's Employment Agreement, dated as of the Closing Date, as
amended and in effect from time to time; and (vii) the term "Disability" shall
have the meaning assigned to such term in the applicable Key Person's Employment
Agreement or Consulting Agreement, as the case may be, dated as of the Closing
Date, as amended and in effect from time to time.
<PAGE>
9.3. Operation of Business Post-Closing. The Buyer and the Parent
agree that the business of the Buyer post-Closing shall be operated in good
faith and consistent with the management of the Parent and its other
subsidiaries (including, without limitation, maintaining business insurance
coverage substantially similar to the insurance coverage maintained by the
Seller for the benefit of the Seller as of the date hereof and maintaining
reserves of at least $50,000 in cash for working capital purposes). Each of the
Buyer, the Parent and the Key Persons will act in good faith to distribute
Preamble Products world-wide. Sales and marketing efforts by the Buyer, the
Parent and the Key Persons with respect to the Preamble Products will include,
but will not be limited to training of sales personnel, advertising, development
of demonstration units, attendance at trade shows, visiting customers and
distribution of sales literature. Buyer and Parent resources for the foregoing
sales and marketing efforts shall be provided pursuant to a business plan and
budget for the Preamble Products jointly developed by the Buyer, the Parent and
the Key Persons. Each of the Buyer, the Parent and the Key Persons agree to
negotiate in good faith to reach a mutually satisfactory joint business plan and
budget with respect to the Preamble Products and the activities described in
this Section 9.3.
10. CONDUCT OF BUSINESS PRIOR TO CLOSING DATE. The Seller and each
of the Stockholders covenants and agrees that, from and after the Effective Date
and until the earlier to occur of (i) the Closing or (ii) the date of
termination of this Agreement pursuant to Section 15 below, with respect to the
Acquired Assets, except as otherwise specifically consented to or approved by
the Buyer in writing:
10.1. Full Access. The Seller and the Stockholders shall afford to
the Buyer and its authorized representatives full access, upon reasonable
notice, during normal business hours to all properties, books, records,
contracts and documents of the Seller and a full opportunity to make such
investigations as they shall desire to make of the Seller.
10.2 Carry on in Regular Course. The Seller and the Stockholders
shall maintain the Acquired Assets in good operating condition and repair,
ordinary wear and tear excepted.
10.3. Contracts, Commitments and Related Matters. Except as
disclosed on Schedule 10.3 to the Disclosure Letter, the Seller and the
Stockholders shall not amend or enter into any contract or commitment or engage
in any transaction not in the usual and ordinary course of business and
consistent with its normal business practices.
<PAGE>
10.4. Sale of Capital Assets. Except as disclosed on Schedule 10.4,
the Seller and the Stockholders shall not sell or otherwise dispose of any
capital asset without the prior written consent of the Buyer.
10.5. Preservation of Organization. The Seller shall not merge or
consolidate with any other corporation, or acquire any stock of, or, except in
the ordinary course of business, acquire any assets or property of any other
business entity whatsoever.
10.6. No Default. Neither the Seller nor any of the Stockholders
shall do any act or omit to do any act, or permit any act or omission to act,
which will cause a breach of any contract, commitment or obligation of the
Seller.
10.7. Compliance with Laws. The Seller shall duly comply in all
material respects with all laws, regulations and orders applicable with respect
to its business.
10.8. Advice of Change. The Seller shall promptly advise the Buyer
in writing of any material adverse change in the business, condition,
operations, prospects or assets of the Seller.
10.9. Consents of Third Parties. The Seller shall use its best
efforts to secure, before the Closing Date, the consent, in form and substance
satisfactory to the Buyer and the Buyer's counsel, to the consummation of the
transactions contemplated by this Agreement by each party to any contract,
commitment or obligation of the Seller to be assumed by the Buyer hereunder,
under which such transactions would constitute a default, would accelerate,
modify or vest obligations of the Seller or would permit cancellation of any
such contract. In the event any such consent is not procured before the Closing
Date and the Buyer waives in writing the requirements of this Section 10.9 with
respect to such consent, then the Buyer shall use its reasonable commercial
efforts to cooperate with the Seller and the Stockholders in obtaining such
consent.
<PAGE>
11. COVENANTS OF THE PARTIES.
11.1. Registration Statement on Form S-3. The Parent shall use its
best efforts to file with the Securities and Exchange Commission within five (5)
business days of the Effective Date, a registration statement on Form S-3 with
respect to shares of the Common Stock of the Parent constituting the Stock
Consideration and an additional 60,000 shares to be held in reserve by the Buyer
and the Parent for the purpose of satisfying any obligation to pay any
additional amounts pursuant to Sections 9.1 and 9.2 above. The Parent will use
commercially reasonable efforts to maintain the effectiveness of such
registration statement through December 31, 2003.
11.2. Further Assurances. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use all reasonable efforts to, as
promptly as practicable, take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement. In case at any time after the Closing any
further action is necessary or desirable to carry out the purposes of this
Agreement, the proper officers and directors of each party to this Agreement
shall take all such necessary action.
11.3. Disclosure Supplements. From time to time prior to the
Closing, and in any event immediately prior to the Closing, the Seller and the
Stockholders will promptly supplement or amend any disclosure schedule hereto
with respect to any matter hereafter arising which, if existing, occurring or
known at the date of this Agreement, would have been required to be set forth or
described in such disclosure schedule or which is necessary to correct any
information in such schedule which has become inaccurate, provided that delivery
of such information will not be deemed an amendment of this Agreement unless
prior to or on the Closing Date, the Buyer acknowledges in writing Buyer's
acceptance of any supplement or amendment to any disclosure schedule. No
supplement or amendment to such schedules shall have any effect for the purpose
of determining satisfaction of any of the conditions set forth in Sections 12,
13 and 14 hereof unless the Buyer accepts any such supplement or amendment to
any disclosure schedule in writing prior to or on the Closing Date.
11.4. Public Announcements. The parties hereto each agree that no
party to this Agreement shall make, issue or release any
<PAGE>
announcement, whether to the public generally, or to employees, suppliers or
customers, statement or acknowledgment of the existence of, or reveal the status
of, the transactions provided for herein, without first obtaining the consent of
the other parties hereto; and except as otherwise required by law or the rules
of Nasdaq, the Seller and the Buyer will cooperate with each other in the
development and distribution of all news releases and other public information
disclosures with respect to this Agreement or any of the transactions
contemplated hereby. Nothing contained in this Section 11.3 shall prevent any
party from making such public announcements as such party may consider necessary
in order to satisfy such party's legal or contractual obligations.
Notwithstanding the foregoing, the Seller and the Stockholders may discuss the
transactions provided for herein with the Seller's landlord and employees and
consultants of the Seller provided any such employees or consultants agrees to
be bound by confidentiality provisions similar in scope to the provisions set
forth in this Section 11.4.
11.5. Consideration. The Seller agrees to apply the Cash
Consideration solely to satisfy the obligations of the Seller set forth on
Schedule 2(b) to the Disclosure Letter. Each of the Stockholders acknowledges
and agrees that the Cash Consideration shall be applied solely to satisfy the
obligations of the Seller set forth on Schedule 2.1(b) to the Disclosure Letter.
The Seller agrees to distribute the Stock Consideration as set forth on Schedule
2.1(a) to the Disclosure Letter.
11.6. Investment Agreement. The Seller and each of the Stockholders
agrees that it or he, as the case may be, will not offer to sell or otherwise
transfer any of the shares of the Common Stock of the Parent obtained by the
Seller or such Stockholder pursuant to this Agreement in the United States
unless a registration statement with respect to such shares of Common Stock has
become effective under the Securities Act or the Buyer has been furnished with
an opinion of counsel satisfactory to the Buyer that such registration is not
required with respect to such sale or transfer in the United States.
11.7. No-Shopping. For the period beginning on the date hereof and
ending on the earlier to occur of (a) October 31, 1997, (b) the Closing Date or
(c) the date of termination of this Agreement pursuant to Section 15 below,
neither the Seller nor any of the Stockholders will (i) solicit or entertain any
offer or proposal to acquire all or any material portion of the assets or
capital stock of the Seller (other than sales of inventory in the ordinary
course of business), whether by the issuance or transfer of stock or assets,
merger, consolidation, or otherwise, or (ii) negotiate or
<PAGE>
discuss any such offer or proposal with any third party, or (iii) provide any
information to any third party in connection with any such offer or proposal.
11.8. Transitional Matters. The Seller acknowledges that the Buyer
may from time to time require access to some business records of the Seller
relating to the Acquired Assets, and the Seller agrees that upon reasonable
prior notice from the Buyer, it will, during normal business hours, either
provide the Buyer with access to or, at the Buyer's option, copies of such
records. The Seller agrees that it will not destroy any such business records
during the period from the date hereof until the third anniversary of the
Closing Date nor destroy any business records prepared prior to the Closing
without first notifying the Buyer and affording it the opportunity to remove or
copy them.
12. MUTUAL CONDITIONS PRECEDENT TO THE PARTIES' OBLIGATIONS. The
respective obligations of each party under this Agreement shall be subject to
the fulfillment at or prior to the Closing of the following conditions, none of
which may be waived unilaterally by any party hereto.
12.1. No Litigation. No statute, rule, regulation, executive order,
decree, restraining order or injunction shall have the effect of making the
transactions contemplated by this Agreement illegal or otherwise prevent the
transactions contemplated by this Agreement and no action, suit or proceeding
shall be pending or threatened before any court or administrative body in which
it will be or is sought to restrain or prohibit or obtain damages or other
relief in connection with this Agreement or the consummation of the transactions
contemplated hereby.
12.2. Consents, Approvals, Etc. All other required regulatory
filings shall have been completed and all necessary regulatory consents,
approvals and clearances in connection with the transactions contemplated by
this Agreement shall have been received.
13. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS. Notwithstanding
the provisions of Sections 1, 2 and 3, the Buyer shall be obligated to perform
the acts contemplated for performance by it under Sections 1, 2 and 3 only if
each of the following conditions is satisfied at or prior to the Closing Date,
unless any such condition is waived in writing by the Buyer:
<PAGE>
13.1. Accuracy of Representations and Warranties by the Seller and
the Stockholders. The representations and warranties of the Seller and the
Stockholders set forth in Section 6 shall be true and correct in all material
respects.
13.2. Compliance by the Seller and the Stockholders. The Seller and
the Stockholders shall have performed and complied in all material respects with
all covenants and agreements contained in this Agreement required to be
performed or complied with by it or them, as the case may be, on or before the
Closing Date.
13.3. Closing Certificate. The Seller shall have delivered to the
Buyer at and as of the Closing a certificate, duly executed by the President of
the Seller and by the Stockholders in form and substance satisfactory to the
Buyer and its counsel, certifying that the representations, warranties and
conditions specified in Sections 13.1 and 13.2 have been satisfied.
13.4. Parent Stock Price. If Buyer elects to pay the amount set
forth in Section 2.1(a) in Common Stock, the Average Market Value of Common
Stock determined pursuant to Sections 2.1(a) and 2.2 hereof shall be no less
than $25.00 per share.
13.5. Proceedings and Documents Satisfactory. All proceedings in
connection with the transactions contemplated by this Agreement and all
certificates and documents delivered to the Buyer pursuant to this Section 13
shall be reasonably satisfactory to the Buyer and its counsel.
14. CONDITIONS PRECEDENT TO THE SELLER'S OBLIGATIONS.
Notwithstanding the provisions of Sections 1 and 2, the Seller shall be
obligated to perform the acts contemplated for performance by it under Sections
1 and 2 only if each of the following conditions is satisfied at or prior to the
Closing Date, unless any such condition is waived in writing by the Seller:
14.1. Re-Seller Registration Statement. Unless the Buyer selects to
pay the amount set forth in Section 2.1(a) in cash or cash equivalents, a
re-seller registration statement on Form S-3 registering the public sale under
the Securities Act of 1933, as amended by the Stockholders of (i) the Stock
Consideration and (ii) an additional 60,000 shares in respect of any additional
amounts Buyer may use to pay any amounts be required to paid pursuant to
Sections 9.1 and 9.2 above, shall have been declared effective by the Securities
and Exchange Commission and a reasonable
<PAGE>
number of copies of the prospectus contained therein have been delivered to the
Seller and the Stockholders by the Buyer.
14.2. Accuracy of Representations and Warranties of the Buyer and
the Parent. The representations and warranties of the Buyer and the Parent set
forth in Section 7 shall be true and correct in all material respects.
14.3. Compliance by the Buyer and the Parent. The Buyer and the
Parent shall have performed and complied in all material respects with all of
the covenants and agreements required to be performed or complied with by each
of them by the Closing Date.
14.4. Closing Certificate. The Buyer and the Parent shall have
delivered to the Seller at and as of the Closing a certificate, duly executed by
a Vice President of the Buyer and a Vice President of the Parent, in form and
substance satisfactory to the Seller and its counsel, certifying that the
representations, warranties and conditions specified in Sections 14.2 and 14.3
have been satisfied.
14.5. Parent Stock Price. If Buyer elects to pay the amounts set
forth in Section 2.1(a) in Common Stock, the Average Market Value of Common
Stock determined pursuant to Sections 2.1(a) and 2.2 hereof shall be no more
than $45 per share.
14.6. Proceedings and Documents Satisfactory. All proceedings in
connection with the transactions contemplated by this Agreement and all
certificates and documents delivered to the Seller and the Stockholders pursuant
to this Section 14 shall be reasonably satisfactory to the Seller, the
Stockholders and their counsel.
15. TERMINATION; LIABILITIES CONSEQUENT THEREON. This Agreement may be
terminated and the transactions contemplated hereby abandoned at any time prior
to the Closing only as follows:
(a) by the Buyer, upon notice to the Seller if the conditions set forth in
Sections 12 and 13 shall not have been satisfied by October 31, 1997; or
(b) by the Seller, upon notice to the Buyer, if the conditions set forth in
Sections 12 and 14 shall not have been satisfied by October 31, 1997; or
<PAGE>
(c) by the Buyer if there has been any material breach of any
representation, warranty or covenant of the Seller or any Stockholder contained
herein and the same has not been cured within 10 days after notice thereof;
(d) by the Seller if there has been any material breach of any
representation, warranty or covenant the Buyer or the Parent contained herein
and the same has not been cured within 10 days after notice thereof; or
(e) at any time by mutual agreement of the Buyer and of the Seller.
Any termination pursuant to this Section 15 shall be without liability on
the part of any party. The provisions of Sections 14 and 16 of this Agreement
shall survive any termination of this Agreement.
16. INDEMNIFICATION.
16.1 Indemnification by the Seller and the Stockholders.
16.1.1 Indemnification by the Seller and the Stockholders. Subject
to the limitations set forth below, the Seller and each of the Stockholders
agrees to jointly and severally indemnify and hold the Buyer (and its directors,
officers, employees, affiliates and stockholders) (collectively, the "Buyer
Protected Parties") harmless from and with respect to any and all claims,
liabilities, losses, damages, costs and expenses (including the reasonable fees
and disbursements of counsel), net of insurance proceeds ("Losses"), related to
or arising, directly or indirectly, out of:
(i) any failure or any breach by the Seller of any representation or
warranty, covenant, obligation or undertaking made by the Seller in this
Agreement, any Exhibit hereto, any Schedule to the Disclosure Letter, in any
other Related Agreement or any other statement, certificate or other instrument
delivered expressly pursuant hereto; or
(ii) in connection with or by virtue of the business or operations of the
Seller up to and including the Closing Date or any Excluded Liability, it being
understood that the only obligations and liabilities that the Buyer assumes
hereunder are the Assumed Obligations (as defined in Section 3).
<PAGE>
16.1.2 Further Indemnification by the Stockholders. Subject to the
limitations set forth below, each of the Stockholders additionally agrees to
severally indemnify and hold the Buyer Protected Parties harmless from and with
respect to any Losses, related to or arising, directly or indirectly, out of any
failure or any breach by such Stockholder in his individual capacity of any
representation or warranty, covenant, obligation or undertaking made by such
Stockholder in his individual capacity in this Agreement, any Exhibit hereto,
Schedule to the Disclosure Letter, in any other Related Agreement or any other
statement, certificate or other instrument delivered expressly pursuant hereto;
provided that each of Alfred Schamel and Timothy Ruvo additionally agrees to
jointly and severally indemnify and hold the Buyer Protected Parties harmless
from and with respect to any Losses, related to or arising, directly or
indirectly, out of any failure or any breach by either Alfred Schamel or Timothy
Ruvo of any representation or warranty, covenant, obligation or undertaking made
by either Alfred Schamel or Timothy Ruvo in his individual capacity in this
Agreement, any Exhibit hereto, any Schedule to the Disclosure Letter, in any
other Related Agreement or any other statement, certificate or other instrument
delivered expressly pursuant hereto.
16.2. Indemnification by the Buyer and the Parent. The Buyer and the
Parent agree to jointly and severally indemnify and hold the Seller (and its
directors, officers, employees and affiliates) and the Stockholders
(collectively, the "Seller Protected Parties") harmless from and with respect to
any and all Losses related to or arising, directly or indirectly, out of (i) the
operation of the Buyer's or Parent's business, as the case may be, involving or
related to the Acquired Assets, after the Closing or (ii) failure, breach or
violation by the Buyer or the Parent of any representation or warranty,
covenant, including any failure to discharge Assumed Obligations, any obligation
or undertaking made by it in this Agreement, any Exhibit hereto, any Schedule to
the Disclosure Letter or in any Related Agreement to which it is a party or any
other statement, certificate or other instrument delivered expressly pursuant
hereto.
16.3. Indemnification Procedures.
(a) In the event that any Buyer Protected Party or
Seller Protected Party (an "Indemnified Party") desires to make a
claim against a party hereto (the "Indemnifying Party," which term
shall include all Indemnifying Parties if there be more than one) in
<PAGE>
connection with any action, suit, proceeding or demand at any time
instituted against or made upon it for which it may seek
indemnification hereunder (a "Claim"), the Indemnified Party shall
notify the Indemnifying Party of such Claim and of its claims of
indemnification with respect thereto, provided that failure to give
such notice shall not relieve the Indemnifying Party of its
obligations under this Section 16 except to the extent, if at all,
that the Indemnifying Party shall have been prejudiced thereby. Upon
receipt of such notice from the Indemnified Party in connection with
any Claim involving a third party, the Indemnifying Party shall be
entitled to participate in the defense of such Claim , and if and
only if each of the following conditions is satisfied, the
Indemnifying Party may assume the defense of such Claim, and in the
case of such an assumption the Indemnifying Party shall have the
authority to negotiate, compromise and settle such Claim:
(i) The Indemnifying Party confirms in
writing that it is obligated hereunder to indemnify the
Indemnified Party (except for the possible application
of any deductible provided for in this Section 16 would
have the effect that the Indemnifying Party would
probably not be responsible for more than half of such
claim, then the Indemnifying Party shall not be entitled
to defend such claim) with respect to such Claim; and
(ii) The Indemnified Party does not give the
Indemnifying Party written notice that it has
determined, in the exercise of its reasonable
discretion, that matters of corporate or management
policy or a conflict of interest make separate
representation by the Indemnified Party's own counsel
advisable.
(b) Notwithstanding the foregoing, no Indemnifying Party
shall be entitled to settle any Claim unless in connection with such settlement
the Indemnified Party receives a complete release with respect to the subject
matter of such Claim. The Indemnified Party shall retain the right to employ its
own counsel and to participate in the defense of any Claim, the defense of which
has been assumed by an Indemnifying Party pursuant hereto, but the Indemnified
Party shall bear and shall be solely responsible for its own costs and expenses
in connection with such participation.
<PAGE>
16.4. Limitations. The provisions of Sections 16.1 through 16.3 are
subject to the limitations set forth in this Section 16.4. No party shall be
liable to the other under Section 16 unless the Claim is asserted in writing by
the Indemnified Party, stating the nature of the losses and the basis for
indemnification therefor within three (3) months after the expiration of the
applicable statute of limitations with respect to which the Claim relates, as
such limitation period may be extended from time to time. The maximum aggregate
liability of the Indemnifying Party for all claims pursuant to Section 16, shall
be limited to the Purchase Price. No Claim may be asserted under this Section 16
unless the aggregate of all net losses, costs, expenses, and liabilities
suffered by the Indemnified Party exceeds $30,000, but then for such first
$30,000 and to the extent of any excess. Notwithstanding any provision herein to
the contrary, no Stockholder shall have any liability under this Section 16 in
excess of the amount set forth opposite such Stockholder's name on Schedule
2.1(a) to the Disclosure Letter.
16.5. Subrogation Rights. Any Indemnifying Party which indemnifies
any Indemnified Party for any matter pursuant to this Section 16 shall, upon
payment in full of the amount owed with respect to such matter pursuant to this
Section 16, be subrogated to the rights of such Indemnified Party against all
other Persons with respect to the matter for which indemnification was provided
and, in its own name or in the name of the Indemnified Party, may assert any
claim against any such person which the Indemnified Party may have with respect
thereto.
16.6. Materiality Standards. Once it has been determined that there
has been a breach of a representation, warranty or covenant for purposes of the
measure of harm pursuant to this Section 16, the existence and extent of any
inaccuracy in or breach of any representation or warranty or covenant contained
in this Agreement or in any certificate or instrument delivered pursuant to the
express terms hereof shall be determined by reading the representation or
warranty or covenant that is inaccurate or breached as if all materiality
standards related to such breach contained in such specific representation or
warranty or covenant, as applicable, had been deleted from such representation
or warranty or covenant in their entirety.
16.7. Right of Set-off. Upon notice to Seller specifying in
reasonable detail the basis for such set-off, Buyer may set off any amount to
which it may be entitled under this Section 16 against amounts otherwise payable
pursuant to Section 9. Neither the exercise of nor the failure to exercise such
right of set-off will constitute an
<PAGE>
election of remedies or limit Buyer in any manner in the enforcement of any
other remedies that may be available to it.
17. SURVIVAL OF REPRESENTATIONS. Each of the representations,
warranties and undertakings in this Agreement (i) made by the Seller and the
Stockholders shall survive the Closing and shall expire on the last day that a
claim for indemnification with respect thereto may be made pursuant to Section
16, provided, however, that any representation, warranty or undertaking that is
the subject of an outstanding written indemnification claim on such date shall
survive beyond such date for purposes of such claim until the resolution of such
claim.
18. TAX CONSEQUENCES TO THE PARTIES. The parties hereto understand
and agree that no party hereto is making any representation or warranty as to
the tax consequences of this Agreement or any Related Agreement and the events
and actions contemplated hereby and thereby.
19. EXPENSES. All expenses incurred by any party hereto shall be
borne by the party incurring the same.
20. MISCELLANEOUS PROVISIONS.
20.1. Amendment and Waiver. This Agreement may not be amended except
by an instrument in writing signed on behalf of each of the parties hereto. Any
agreement on the part of a party hereto to any extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party, but such waiver or failure to insist on strict compliance with such
obligation, covenant, agreement or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
20.2. Notices and Representatives. Any notice expressly provided for
under this Agreement shall be in writing, shall be given either manually or by
written telecommunication, and shall be deemed sufficiently given if delivered
personally, or by a nationally recognized courier service against written
receipt, or ten days after being mailed by certified mail, return receipt
requested, postage prepaid, addressed to such party, or if sent by written
telecommunication, with appropriate answer back, in each case to the following
addresses. Any party and any representative designated below may, by notice to
the others, change its address for receiving such notices.
<PAGE>
Address for notices to the Buyer or the Parent:
Preamble Acquisition Corp.
c/o LeCroy Corporation
700 Chestnut Ridge Road
Chestnut Ridge, NY 10977
Telecopy: (914) 578-5989
Attention: Vice President,
Business Development
with a copy to:
Roger D. Feldman, Esq.
Bingham, Dana & Gould LLP
150 Federal Street
Boston, MA 02110
Telecopy: (617) 951-8736
Address for notices to the Seller or any Stockholder:
Preamble Instruments, Inc.
6700 SW 105th Avenue
Beaverton, OR 97008
Telecopy: (503) 646-1604
Attention: Alfred H. Schamel
with a copy to:
James M. Kennedy, Esq.
Kennedy & Kennedy LLP
Pioneer Tower, Suite 1170
888 S.W. Fifth Avenue
Portland, Oregon 97204-2098
Telecopy: (503) 226-6466
20.3. Assignment and Benefits of Agreement. This Agreement shall be
binding upon and shall inure to the benefit of the parties and their respective
successors, but may not be assigned by any of the foregoing without the written
consent of the others; provided, however, that the Buyer may assign its rights
and obligations hereunder to any affiliate of the Buyer. Except as aforesaid or
as specifically provided for elsewhere in this Agreement, nothing in this
Agreement, express or
<PAGE>
implied, is intended to confer upon any person other than the parties hereto and
their said successors and assigns, any rights under or by reason of this
Agreement.
20.4. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the internal laws (not including the
choice-of-law rules) of the state of Delaware.
20.5. Counterparts. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument.
20.6. Section Headings. All enumerated subdivisions of this
Agreement are herein referred to as "section" or "subsection." The headings of
sections or subsections are for reference only and shall not limit or control
the meaning thereof.
20.7. Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party. The words
"include" or "including" are not limiting.
20.8. Effect of Investigations. No investigation by the parties
hereto made heretofore or hereafter, whether pursuant to this Agreement or
otherwise shall affect the representations and warranties of the parties which
are contained herein and each such representation and warranty shall survive
such investigation.
20.9. Severability. In the event that any one or more provisions of
this Agreement shall for any reason be held invalid, illegal or unenforceable in
any respect, by any court of competent jurisdiction, such invalidity, illegality
or unenforceability shall not affect any other provisions of this Agreement and
the parties shall use their best efforts to substitute a valid, legal and
enforceable provision which, insofar as practicable, implements the purposes and
intents of this Agreement.
20.10. Specific Enforceability. Each of the Buyer, the Stockholders
and the Seller recognize and hereby acknowledge that it is impossible to measure
in money the damages that would result to a party by reason of the failure of
any of the parties to perform any of the obligations imposed on it by Section 8
of this Agreement. Accordingly, if any party should institute an action or
proceeding seeking specific
<PAGE>
enforcement of the provisions hereof, each party against which such action or
proceeding is brought hereby waives the claim or defense that the party
instituting such action or proceeding has an adequate remedy at law and hereby
agrees not to assert in any such action or proceeding the claim or defense that
such a remedy at law exists.
20.11. CONSENT TO JURISDICTION. EACH OF THE BUYER, THE STOCKHOLDERS
AND THE SELLER HEREBY AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS IN AND OF THE STATE OF DELAWARE OVER ANY SUIT, ACTION OR PROCEEDING
EXISTING UNDER OR RELATING TO THIS AGREEMENT, ANY RELATED AGREEMENT OR THE
COMMON STOCK OF THE PARENT TRANSFERRED TO THE SELLER OR ANY STOCKHOLDER PURSUANT
TO THE TERMS HEREOF OR THEREOF, AND CONSENTS THAT SERVICE OF PROCESS WITH
RESPECT TO ALL COURTS IN AND OF THE STATE OF DELAWARE MAY BE MADE BY REGISTERED
MAIL TO IT AT SUCH PERSON'S ADDRESS SET FORTH PURSUANT TO SECTION 20.2 HEREOF.
20.12. CONSENT TO USE OF NAME. The Seller consents to the use of the
name "Preamble Instruments Corp." by the Buyer.
<PAGE>
20.13. Disclosure Schedule. The disclosures in the Schedules hereto,
and those in any supplement thereto, shall relate only to the representations
and warranties in the Section of the Agreement to which they expressly relate
and not to any other representation or warranty in this Agreement. In the event
of any inconsistency between the statements in the body of this Agreement and
those in any Schedule hereto, the statements in the body of this Agreement will
control.
20.14. Entire Agreement, Etc. This Agreement (including the
Schedules and Exhibits hereto) contains the entire understanding of the parties,
supersedes all prior agreements and understandings relating to the subject
matter hereof and shall not be amended, modified or waived except by a written
instrument hereafter signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as an instrument under seal as of the date and year first written
above.
BUYER: PREAMBLE ACQUISITION CORP.
By: /s/ John C. Maag
----------------------------
Name: John C. Maag
Title: Secretary
PARENT: LECROY CORPORATION
By: /s/ John C. Maag
----------------------------
Name: John C. Maag
Title: Secretary
SELLER: PREAMBLE INSTRUMENTS, INC.
By: /s/ Alfred H. Schamel
----------------------------
Name: Alfred H. Schamel
Title: President
<PAGE>
STOCKHOLDERS: /s/Alfred H. Schamel
----------------------
Alfred H. Schamel
/s/ Timothy W. Ruvo
----------------------
Timothy W. Ruvo
/s/ John L. Addis
----------------------
John L. Addis
/s/ Robert E. Metzler
----------------------
Robert E. Metzler
/s/ Bruce E. Hofer
----------------------
Bruce E. Hofer
/s/ Karl Evenson
----------------------
Karl Evenson
<PAGE>
Exhibit 5
BINGHAM DANA LLP
150 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1726
October 6, 1997
LeCroy Corporation
700 Chestnut Ridge Road
Chestnut Ridge, New York 10977
Dear Ladies and Gentlemen:
We have acted as counsel for LeCroy Corporation, a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), of 95,181 shares of the Company's
Common Stock, par value $.01 per share (the "Shares"), pursuant to a
Registration Statement on Form S-3 (the "Registration Statement"), filed with
the Securities and Exchange Commission on October 6, 1997, all of which Shares
will be issued pursuant to the terms of an Asset Purchase Agreement, dated as of
October 3, 1997 (the "Asset Purchase Agreement"), between Preamble Acquisition
Corp., a Delaware corporation and wholly-owned subsidiary of the Company,
Preamble Instruments, Inc., an Oregon corporation ("Preamble Instruments"), and
the stockholders of Preamble Instruments.
As such counsel, we have reviewed the corporate proceedings of the
Company with respect to the authorization of the issuance of the Shares. We have
also examined and relied upon originals or copies, certified or otherwise
identified or authenticated to our satisfaction, of such corporate records,
instruments, agreements or other documents of the Company, and certificates of
officers of the Company as to certain factual matters, and have made such
investigation of law and have discussed with officers and representatives of the
Company such questions of fact, as we have deemed necessary or appropriate to
enable us to express the opinions rendered hereby.
In our examination, we have assumed the genuineness of all signatures,
the conformity to originals of all documents reviewed by us as copies, the
authenticity and completeness of all original documents reviewed by us in
original or copy form and the legal competence of each individual executing a
document.
We have also assumed that the Shares were issued and delivered or will
be delivered, as the case may be, in accordance with the terms of the Asset
Purchase Agreement. As to all matters of fact (including without limitation the
value placed upon the assets acquired in consideration for the Shares pursuant
to the Asset Purchase Agreement), we have relied entirely upon the
determinations, representations and statements of the Company; and we have
assumed, without independent inquiry, the accuracy of all such determinations,
representations and statements.
This opinion is limited solely to the Delaware General Corporation Law
as applied by courts located in Delaware.
<PAGE>
LeCroy Corporation
October 6, 1997
Page 2
Based upon and subject to the foregoing, we are of the opinion that the
Shares are validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Certain Legal Matters" in the Prospectus included in the Registration
Statement.
Very truly yours,
/s/ Bingham Dana LLP
BINGHAM DANA LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of LeCroy Corporation
for the registration of 95,181 shares of its common stock and to the
incorporation by reference therein of our report dated August 5, 1997, with
respect to the consolidated financial statements and schedule of LeCroy
Corporation included in its Annual Report (Form 10-K) for the year ended June
30, 1997, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Hackensack, New Jersey
October 6, 1997
