AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
ADVANCED ENERGY INDUSTRIES, INC.
AE CAL MERGER SUB, INC.
AND
NOAH HOLDINGS, INC.
DATED AS OF APRIL 5, 2000
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEFINITIONS 4
ARTICLE 2. THE MERGER 6
2.1 The Basic Transaction 6
2.2 The Closing 6
2.3 Effective Time 6
2.4 Articles of Incorporation and Bylaws 6
2.5 Directors and Officers of the Surviving Corporation 6
ARTICLE 3. CONVERSION AND EXCHANGE OF SECURITIES 6
3.1 Merger Sub Stock 6
3.2 Company Stock; Options. 6
3.3 Exchange of Certificates Representing Company Shares.8
3.4 Escrow Agreement. 10
3.5 Lost Certificates 10
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 11
4.1 Organization and Standing. 11
4.2 Capitalization. 11
4.3 Authorization; Enforceability; No Violation. 12
4.4 No Consents 13
4.5 Compliance With Laws 13
4.6 Financial Statements. 13
4.7 Absence of Litigation, Orders, Judgments. 14
4.8 Absence of Certain Changes 14
4.9 Taxes 15
4.10 Contracts 15
4.11 Intellectual Property. 15
4.12 Employee Benefit Plans. 16
4.13 No Brokers 17
4.14 Opinion of Financial Advisor 17
4.15 Parent Stock Ownership 17
4.16 Environmental Matters. 17
4.17 Insurance 18
4.18 Proprietary Information and Inventions and
Confidentiality Agreement 18
4.19 Accuracy of Documents and Information 18
4.20 Offices; Capital Equipment 19
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF PARENT AND
MERGER SUB 19
5.1 Organization and Standing. 19
i
5.2 Capitalization. 20
5.3 Authorization; Enforceability; No Violation. 20
5.4 No Consents 21
5.5 Parent Reports. 21
5.6 No Brokers 22
5.7 No Reacquisition of Company Shares 22
5.8 Investment Company 22
5.9 Certain Tax Matters 22
ARTICLE 6. COVENANTS 23
6.1 Publicity 23
6.2 Registration Statement. 23
6.3 Listing Application 24
6.4 Expenses 24
6.5 Takeover Statute 24
ARTICLE 7. CONDITIONS TO CLOSING 25
7.1 Conditions to Each Party's Obligation to Effect the
Merger 25
7.2 Conditions to Obligation of the Company to Effect the
Merger 25
7.3 Conditions to Obligation of Parent and Merger Sub to
Effect the Merger 26
ARTICLE 8. TERMINATION 27
8.1 Termination by Either Parent or the Company 27
8.2 Extension; Waiver 27
ARTICLE 9. GENERAL PROVISIONS 27
9.1 Survival of Representations, Warranties and Covenants27
9.2 Notices 27
9.3 Assignment, Binding Effect 28
9.4 Entire Agreement 29
9.5 Amendment 29
9.6 Governing Law 29
9.7 Counterparts 29
9.8 Headings 29
9.9 Interpretation 29
9.10 Waivers 29
9.11 Incorporation of Exhibits 29
9.12 Severability 29
9.13 Enforcement of Agreement 30
9.14 Indemnity 30
ii
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (this "AGREEMENT"),
dated as of April 5, 2000, is made by and among Advanced Energy
Industries, Inc., a Delaware corporation ("PARENT"), AE Cal
Merger Sub, Inc., a California corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), and Noah Holdings, Inc., a
California corporation (the "COMPANY").
RECITALS
A. The Boards of Directors of Parent and the Company each
have determined that a business combination between Parent and
the Company would enable the companies to achieve long-term
strategic and financial benefits and, accordingly, is in the best
interests of their respective stockholders. Each of such Boards
of Directors desires to effect the Merger (as defined herein), on
the terms and subject to the conditions set forth herein.
B. It is intended that the Merger qualify as a
reorganization within the meaning of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code"), for federal income
tax purposes.
C. It is intended that the Merger be accounted for as a
pooling of interests for financial accounting purposes.
D. Parent has incorporated and organized Merger Sub solely
to facilitate the Merger.
NOW, THEREFORE, in consideration of the mutual covenants and
subject to the terms and conditions set forth herein, and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE 1.
DEFINITIONS
"AGREEMENT" has the meaning set forth in the preface above.
"APB NO. 16" means the Accounting Principles Board Opinion
Number 16.
"CALIFORNIA FILING MATERIALS" has the meaning set forth in
2.3 below.
"CALIFORNIA LAW" means the Corporation Code of the State of
California, as amended.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CERTIFICATE" has the meaning set forth in 3.2(b) below.
"CLOSING" has the meaning set forth in 2.2(a) below.
"CLOSING DATE" has the meaning set forth in 2.2 below.
"CLOSING PRICE" means $59.41.
1
"CODE" has the meaning set forth in the recitals above.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" has the meaning set forth in the preface above.
"COMPANY BENEFIT PLANS" means all employee benefit plans as
defined in Section 3.3 of ERISA and any other plan, contract,
program, policy or benefit arrangements covering employees or
former employees of the Company and all employee agreements
providing compensation, severance or other benefits to any
employee or former employee of the Company.
"COMPANY BOARD" means the Board of Directors of the Company.
"COMPANY CONTRACT" means any material agreement, contract
and commitment, whether written or oral, to which the Company is
a party or by which it is bound.
"COMPANY DISCLOSURE SCHEDULE" means the disclosure schedule
delivered by Company at or prior to the execution hereof to
Parent.
"COMPANY MATERIAL ADVERSE EFFECT" means a material adverse
effect on or change in the business, results of operations or
financial condition of the Company and Company Subsidiary, taken
as a whole.
"COMPANY OPTIONS" has the meaning set forth in
3.2(d)(i) below.
"COMPANY PREFERRED SHARES" means any issued or outstanding
share of preferred stock of the Company.
"COMPANY REAL PROPERTIES" means all real property ever
owned, leased or occupied by the Company, any Company Subsidiary
or any Predecessor.
"COMPANY SHARE" means any share of the common stock of Noah
Holdings, Inc.
"COMPANY SHAREHOLDERS" means the holders of Company Shares
as of the Closing Date.
"COMPANY SUBSIDIARY" has the meaning set forth in 4.1(b)
below.
"COPYRIGHTS" means all of Company's copyrights,
copyrightable works, semiconductor topography and mask work
interests, including, without limitation, all rights of
authorship, use, publication, reproduction, distribution,
performance, transformation, moral rights and ownership of
copyrightable works, semiconductor topography works and mask
works, and all rights to register and obtain renewals and
extensions of registrations, together with all other interests
accruing by reason of international copyright, semiconductor
topography and mask work conventions.
"EFFECTIVE DATE" means the date upon which this Agreement
has been executed by each of the parties.
"EFFECTIVE TIME" has the meaning set forth in 2.3 below.
2
"ENFORCEABILITY EXCEPTIONS" has the meaning set forth in
4.3(d) below.
"ENVIRONMENTAL REQUIREMENTS" means any applicable laws,
regulations, ordinances or other provisions having the force or
effect of law, or any judicial, governmental, or administrative
orders, requests, or determinations, or any common law
requirements relating to the protection of human health or the
environment (both natural and workplace), including without
limitation any Environmental Requirements concerning (A) the use,
generation, treatment, storage, transportation, handling or
disposal of Hazardous Materials, (B) the control of soil, surface
or groundwater pollution products, (C) air quality and emission
standards, or (D) health, safety and hazard communication
matters. Environmental Requirements include, without limitation,
CERCLA, the Resource Conservation and Recovery Act, the Hazardous
Materials Transportation Act, the Clean Water Act, the Toxic
Substances Control Act, the Clean Air Act, SWDA, the Atomic
Energy Act, the Federal Food Drug and Cosmetic Act, and
equivalent state and local ordinances and statutes and ordinances
in countries other than the United States of America.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA AFFILIATE" means any business or entity which is a
member of the same "controlled group of corporations," under
"common control" or an "affiliated service group" with an entity
within the meanings of Sections 414(b), (c) or (m) of the Code,
or required to be aggregated with the entity under Section 414(o)
of the Code, or is under "common control" with the entity, within
the meaning of Section 4001(a)(14) of ERISA, or any regulations
promulgated or proposed under any of the foregoing Sections.
"ESCROW AGENT" means Commercial Escrow Services, Inc. or any
successor thereto appointed in accordance with the Escrow
Agreement.
"ESCROW AGREEMENT" has the meaning set forth in 3.4(a)
below.
"ESCROW AMOUNT" has the meaning set forth in 3.4(a) below.
"ESCROW FUNDS" has the meaning set forth in 3.4(a) below.
"ESCROW SHARES" has the meaning set forth in 3.4(a) below.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE AGENT" has the meaning set forth in 3.3(a) below.
"EXCHANGE FUND" has the meaning set forth in 3.3(a) below.
"EXCHANGE RATIO" has the meaning set forth in 3.2(a) below.
"FINANCIAL STATEMENTS" has the meaning set forth in 4.6
below.
"GAAP" means United States generally accepted accounting
principles, consistently applied.
3
"HAZARDOUS MATERIALS" means any toxic, injurious or
hazardous materials, substances or wastes, toxic pollutants or
contaminants, including petroleum products, crude oil or any
by-products or derivatives thereof as any of the foregoing terms
are defined in federal, state and local laws applicable to the
Company or Parent, as the case may be, but does not include
commercially available office cleaning or janitorial supplies.
"INTERIM FINANCIAL STATEMENTS" has the meaning set forth in
4.6 below.
"IRS" means the federal Internal Revenue Service.
"ISOS" has the meaning set forth in 3.2(d)(iii) below.
"ISSUED PATENTS" means any and all of Company's issued
patents, reissue or reexamination patents, revivals of patents,
utility models, certificates of invention, registrations of
patents, or extensions thereof, regardless of country or formal
name.
"LETTER OF TRANSMITTAL" has the meaning set forth in 3.3c
below.
"MERGER CERTIFICATES" has the meaning set forth in 3.3(a)
below.
"MERGER SUB" has the meaning set forth in the preface above.
"MERGER" has the meaning set forth in 2.1 below.
"NON-DISCLOSURE AGREEMENT" means the Non-Disclosure
Agreement, dated March 12, 1999 between the Company and Parent.
"PARENT" has the meaning set forth in the preface above.
"PARENT BOARD" means the Board of Directors of Advanced
Energy Industries, Inc.
"PARENT DISCLOSURE SCHEDULE" means the disclosure schedule
delivered by Parent at or prior to the execution hereof to the
Company.
"PARENT MATERIAL ADVERSE EFFECT" means a material adverse
effect on or change in the business, results of operations or
financial condition of Parent and its Subsidiaries, taken as a
whole.
"PARENT OPTIONS" means all options to acquire Parent Common
Stock granted by Parent.
"PARENT PREFERRED STOCK" means the 1,000,000 authorized
shares of Parent preferred stock, par value $0.001 per share.
"PARENT REPORTS" means the reports, forms, registrations,
schedules, statements and other documents required to be filed by
Parent with the Commission.
"PARENT SHARE" means any share of the voting common stock of
Advanced Energy Industries, Inc.
4
"PATENT APPLICATIONS" means any of Company's patent rights,
including, without limitation, all United States and foreign
utility and design patents, and all published or unpublished
non-provisional and provisional patent applications, including,
without limitation, any and all applications of additions,
divisionals, continuations, continuations-in-part,
reexaminations, substitutions, extensions, renewals, utility
models, certificates of invention or reissues thereof or
therefor, invention disclosures and records of invention
abandoned patent applications.
"PATENTS" means Patent Applications and Issued Patents
collectively.
"PERMITS" means all valid and current permits, licenses,
orders, authorizations, registrations, approvals and other
analogous instruments.
"PERSON" includes both natural persons and entities.
"POST CLOSING DIVIDENDS" has the meaning set forth in
3.3(f) below.
"PREDECESSOR" means any Person that owns or has ever owned,
leased or occupied the Company Real Properties.
"QUALIFIED PLAN" means each Company Benefit Plan that is
intended to be a "qualified plan" within the meaning of
Section 401(a) of the Code, and either (i) the IRS has issued a
favorable determination letter that has not been revoked, or
(ii) an application for a favorable determination letter was
timely submitted to the IRS for which no final action has been
taken by the IRS as of the Closing Date.
"REGISTRATION STATEMENT" means a Registration Statement on
Form S-3 under the Securities Act with respect to the Parent
Shares transferred to the Company Shareholders in connection with
the Merger.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"SHAREHOLDERS' REPRESENTATIVES" has the meaning set forth in
3.4(b) below.
"SPECIFIED POST-CLOSING DIVIDENDS" has the meaning set forth
in 3.3(f) below.
"SUBSIDIARY" of a party means any corporation or other
organization, whether incorporated or unincorporated, of which
such party directly or indirectly owns or controls at least a
majority of the securities or other interests having by their
terms ordinary voting power to elect a majority of the board of
directors or others performing similar functions with respect to
such corporation or other organization, or any organization of
which such party is a general partner.
"SUBSTITUTED OPTIONS" has the meaning set forth in
3.2(d)(i) below.
"SURVIVING CORPORATION" has the meaning set forth in 2.1
below.
"SWDA" means the Solid Waste Disposal Act, as amended.
5
"TRADEMARKS" means all of Company's trademarks, registered
trademarks, applications for registration of trademark, service
marks, registered service marks, applications for registration of
service marks, trade names, registered trade names, and
applications for registrations of trade names.
ARTICLE 2.
THE MERGER
2.1 THE BASIC TRANSACTION |HiddenPara|
. On the terms and subject to the conditions of this Agreement,
at the Effective Time Merger Sub shall be merged with and into
the Company in accordance with this Agreement, and the separate
corporate existence of Merger Sub shall thereupon cease (the
"Merger"). The Company shall be the surviving corporation in the
Merger (sometimes hereinafter referred to as the "Surviving
Corporation"), and shall become a wholly-owned subsidiary of
Parent. The Merger shall have the effects specified in the
California Law.
2.2. THE CLOSING |HiddenPara|
. Subject to the terms and conditions of this Agreement, the
closing of the Merger (the "Closing") shall take place at the
offices of Xxxxxx, Xxxx & Priest LLP, San Francisco, California
at 10:00 a.m., local time, on the date hereof (the "Closing
Date").
2.3 EFFECTIVE TIME |HiddenPara|
. On the Closing Date, the parties hereto shall cause the Merger
to be consummated by filing (i) an Agreement of Merger
substantially in the form of Exhibit A and all related officer's
certificates meeting the requirements of California Law (the
"California Filing Materials") in the office of the Secretary of
State of California, in accordance with the California Law. The
Merger shall become effective at the time of filing of the
California Filing Materials with the Secretary of State of
California (the "Effective Time").
2.4 ARTICLES OF INCORPORATION AND BYLAWS |HiddenPara|
. The Articles of Incorporation and Bylaws of Merger Sub in
effect immediately prior to the Effective Time shall be the
Articles of Incorporation and Bylaws of the Surviving
Corporation, until duly amended in accordance with applicable
law.
2.5 DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION
|HiddenPara|
. The directors and officers of Merger Sub immediately prior to
the Effective Time shall be the directors and officers of the
Surviving Corporation until their successors are duly appointed
or elected in accordance with applicable law.
ARTICLE 3.
CONVERSION AND EXCHANGE OF SECURITIES
3.1 MERGER SUB STOCK |HiddenPara|
. At the Effective Time, each share of common stock of Merger
Sub outstanding immediately prior to the Effective Time shall be
converted into and exchanged for one validly issued, fully paid
and non-assessable share of common stock of the Surviving
Corporation.
3.2 COMPANY STOCK; OPTIONS.
6
(a) CONVERSION OF SHARES. Each Company Share that is
issued and outstanding immediately prior to the Effective Time
shall be automatically converted into the right to receive 0.0577
Parent Shares (the "EXCHANGE RATIO").
(b) CANCELLATION OF COMPANY SHARES. At the Effective
Time, as a result of the Merger and without any action on the
part of the Company Shareholders, all Company Shares and any
other issued and outstanding capital stock of the Company,
including any Company Preferred Shares shall cease to be
outstanding, shall be canceled, retired, and shall cease to
exist, and each Company Shareholder shall thereafter cease to
have any rights with respect to such Company Shares, except the
right to receive upon the surrender of a certificate (a
"CERTIFICATE") representing such Company Shares (i) the number of
Parent Shares determined in accordance with this Section 3.2, and
(ii) cash, without interest, payable (A) in lieu of any
fractional Parent Shares, in accordance with Section 3.3(b), and
(B) Specified Post-Closing Dividends, in accordance with
Section 3.3(f).
(c) TREASURY SHARES AND SHARES HELD BY SUBSIDIARIES.
At the Effective Time, there are no Company Shares held in the
Company's treasury or held by a Company Subsidiary.
(d) OPTIONS.
(i) At the Effective Time, as a result of the
Merger and without any action on the part of holder thereof, the
options to purchase (i) 500,000 Company Shares granted by the
Company to Xxxxx Xxxxx and (ii) 200,000 Company Shares granted by
the Company to Xxxxx Xxxxxx, in each case prior to the Effective
Time (collectively, "COMPANY OPTIONS") shall be assumed by Parent
and shall be converted into options to purchase Parent Common
Stock (collectively, "Substituted Options"). Any and all other
outstanding options and warrants to purchase Company Shares and
similar rights, and any and all Company stock option plans, shall
be terminated immediately prior to the Effective Time and none of
Parent, the Company and the Surviving Corporation shall have any
further obligation with respect thereto.
(ii) Subject to subsection 3.2(d)(iii) below,
(A) the number of Parent Shares underlying a Substituted Option
shall be equal to the number of Company Shares underlying the
subject Company Option multiplied by the Exchange Ratio and
rounded to the nearest whole number, (B) the exercise price per
share of a Substituted Option shall be adjusted proportionately
such that the aggregate exercise price under the Substituted
Options granted to each of the Persons set forth in clause (i)
above shall remain substantially unchanged, and (C) each
Substituted Option shall be exercisable on the same terms and
subject to the same conditions as had been applicable to the
related Company Option, except to the extent the number of shares
and exercise price per share have been adjusted pursuant to
(A) and (B), respectively, of this subsection 3.2(d)(ii).
(iii) It is the intention of the parties that
Company Options that qualified as incentive stock options, within
the meaning of Section 422 of the Code ("ISOS"), immediately
prior to the Effective Time, be converted, when assumed by
Parent, into Substituted Options that qualify as ISOs immediately
following the Effective Time, to the extent permitted by
Section 422 of the Code and applicable terms of the Company
Option Plans. In furtherance of such intention, the formulae,
terms and conditions set forth in subsection 3.2(d)(ii) above may
7
be applied to, or modified for, such Substituted Options as
deemed reasonably necessary by Parent, so long as any such
application or modification does not reduce the benefit of the
Substituted Option to the holder thereof.
(iv) Within 45 days after the Effective Time,
Parent shall use reasonable efforts to file with the Commission a
Registration Statement on Form S-3 or Form S-8, as determined by
Parent in its sole discretion, relating to the issuance of the
Parent Shares underlying the Substituted Options or shall cause
such Parent Common Stock to be included in an effective
Registration Statement on Form S-8 relating to one or more of
Parent's stock option plans (collectively, "Parent Option
Plans"). So long as any Substituted Options remain outstanding,
Parent shall use its best efforts to maintain the effectiveness
of any Registration Statement or Statements relating to the
Substituted Options (and to maintain the current status of the
prospectus or prospectuses related thereto). At or prior to the
Effective Time, Parent shall take all corporate action necessary
to reserve for issuance a sufficient number of Parent Shares for
delivery upon exercise of the Substituted Options.
3.3 EXCHANGE OF CERTIFICATES REPRESENTING COMPANY SHARES.
(a) As of the Effective Time, Parent shall deposit, or
shall cause to be deposited, with an exchange agent reasonably
acceptable to the Company (the "EXCHANGE AGENT"), for the benefit
of the Company Shareholders, for exchange (or to be placed in
escrow) in accordance with this Article 3, (i) certificates
representing the Parent Shares to be issued in connection with
the Merger ("MERGER CERTIFICATES"), and (ii) Parent's good faith
estimate of the cash in lieu of fractional shares expected to be
payable in connection with the Merger. Such cash and Merger
Certificates are referred to herein as the "Exchange Fund."
(b) No fractional Parent Shares shall be issued
pursuant hereto. In lieu of the issuance of any fractional share
of Parent Common Stock, cash will be paid in respect of any
fractional share of Parent Common Stock that would otherwise be
issuable and the amount of such cash shall be equal to such
fractional proportion of the Closing Price. No interest will be
paid or accrued on the cash payable to Company Shareholders.
(c) Promptly after the Effective Time, Parent shall
cause the Exchange Agent to mail to each Company Shareholder of
record (i) a letter of transmittal, in a form and having such
provisions as Parent may reasonably specify ("LETTER OF
TRANSMITTAL"), which shall advise each such Company Shareholder
that delivery of Merger Certificates shall be effected, and risk
of loss and title to such Company Shareholder's Company Shares
shall pass, only upon delivery of the Certificates representing
such shares to the Exchange Agent, (ii) instructions for use in
effecting the surrender of such Certificates in exchange for
Merger Certificates and cash in lieu of fractional shares from
the Exchange Fund and (iii) notice of the number of Parent Shares
to be placed in escrow pursuant to Section 3.4.
(d) Upon surrender of a Certificate to the
Exchange Agent for cancellation, together with a duly executed
and properly completed Letter of Transmittal, (i) the holder of
the Company Shares represented by such Certificate shall be
entitled to receive in exchange therefor from the Exchange Fund
(A) a Merger Certificate representing that number of whole Parent
Shares determined by multiplying the number of Company Shares
represented by the Certificate
8
by the Exchange Ratio (and subtracting the number of Parent
Shares of such Company Shareholder to be placed in escrow
pursuant to Section 3.4), and (B) a check representing (1) the
amount of cash in lieu of fractional Parent Shares, if any,
determined pursuant to paragraph (b) of this Section 3.3, and (2)
any Specified Post-Closing Dividends, in each case less any
applicable tax withholding, and (ii) the Company Shares
represented by the surrendered Certificate shall thereupon be
canceled. At the Effective Time, the Company shall cause each of
the Company Shareholders to deliver to Xxxxxxxxx Capital LLC, on
a pro-rata basis, a number of Parent Shares such that, in the
aggregate, Xxxxxxxxx Capital LLC receives 33,244 Parent Shares as
consideration for the services described in Section 4.13.
(e) In the event of a transfer of ownership of Company
Shares which is not registered in the transfer records of the
Company, a Merger Certificate representing the proper number of
Parent Shares, together with a check for the cash to be paid in
lieu of fractional shares, if any, may be issued to such
transferee of such Company Shares (subject to Section 3.4), if
the Certificate representing such Company Shares is presented to
the Exchange Agent, accompanied by all documents, in form and
substance reasonably satisfactory to Parent and the Exchange
Agent, required to evidence and effect such transfer of Company
Shares and to evidence that any applicable stock transfer taxes
have been paid. There shall be no transfers on the transfer
records of the Company, at or after the Effective Time, of
Company Shares which were outstanding immediately prior to the
Effective Time.
(f) Notwithstanding any other provisions of this
Agreement, no dividends or other distributions declared after the
Effective Time on Parent Common Stock ("Post-Closing Dividends")
shall be paid with respect to any Company Shares represented by a
Certificate until such Certificate is surrendered for exchange as
provided herein. Subject to the effect of applicable laws,
following surrender of any such Certificate, there shall be paid
to the holder of the certificates representing whole Parent
Shares issued in exchange therefor, without interest, (i) at the
time of such surrender, the amount of Post-Closing Dividends with
a record date after the Effective Time theretofore payable with
respect to such whole Parent Shares and not paid, less the amount
of any withholding taxes which may be required thereon
("Specified Post-Closing Dividends"), and (ii) at the appropriate
payment date, the amount of Post-Closing Dividends with a record
date after the Effective Time but prior to surrender and a
payment date subsequent to surrender payable with respect to such
whole Parent Shares, less the amount of any withholding taxes
which may be required thereon.
(g) One year after the Effective Time, the Exchange
Agent shall deliver to the Surviving Corporation any portion of
the Exchange Fund (including the proceeds of any investments
thereof and any Parent Shares) that remains unclaimed by the
former Company Shareholders. Thereafter, former Company
Shareholders that have not surrendered their Certificates for
exchange shall look to the Surviving Corporation for delivery of
Merger Certificates, cash in lieu of fractional shares and unpaid
Post-Closing Dividends which such former Company Shareholder is
entitled to receive in respect of the Company Shares represented
by the theretofore unsurrendered Certificates, in each case,
without any interest thereon.
(h) None of Parent, the Company, the Surviving
Corporation, the Exchange Agent or any other Person shall be
liable to any former Company Shareholder for any amount
9
properly delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws.
3.4 ESCROW AGREEMENT.
(a) ESCROW SHARES. At the Effective Time, the number
of Parent Shares equal to ten percent (10%) of: (i) the
aggregate Parent Shares issuable in accordance with this
Agreement pursuant to Section 3.2(a), minus the Parent Shares to
be delivered to Xxxxxxxxx Capital LLC pursuant to Section 3.3(d)
(the "ESCROW SHARES") and (ii) any cash in lieu of fractional
shares to be issued to the Company Shareholders pursuant to
Section 3.3(b) (the "Escrow Funds" and, with Escrow Shares, the
"ESCROW AMOUNT") shall be reserved from that portion of the
Parent Common Stock otherwise issuable to the Company
Shareholders. The Escrow Amount shall be withheld pro rata from
the Parent Shares and cash in lieu of fractional shares to be
received by the Company Shareholders upon conversion of their
Shares. Prior to or at the Closing, the parties shall enter into
an agreement, substantially in the form attached hereto as
Exhibit B (the "ESCROW AGREEMENT"), regarding the terms under
which the Escrow Amount shall be held and released.
(b) APPOINTMENT OF SHAREHOLDERS' REPRESENTATIVES.
Pursuant to the Escrow Agreement, the Company Shareholders have
appointed or shall appoint Xxxxxx Xxxxxxx and Xxxxx Xxxxx as the
representatives of all of Company Shareholders (the
"Shareholders' Representatives"), who shall make decisions
required to be made under the Escrow Agreement on behalf of all
of the Company Shareholders and enforce all of the Company
Shareholders' rights thereunder. Each of the Shareholders'
Representatives shall have full power and authority to act for
and on behalf of all of the Company Shareholders with respect to
all matters set forth in the Escrow Agreement, including without
limitation resolution of contested claims and disposition of the
Escrow Amount. Any third party, including each of Parent and the
Escrow Agent, shall be entitled to rely on any action under the
Escrow Agreement by the Shareholders' Representatives as having
been made for and on behalf of the Company Shareholders, and any
such action shall be binding upon all of the Company
Shareholders. The Shareholders' Representatives shall not be
liable to the Company Shareholders by reason of any error or
judgment or of any act done or step taken or omitted by him in
good faith or for any mistake of fact or law, as may be further
provided in the Escrow Agreement.
3.5 LOST CERTIFICATES |HiddenPara|
. In the event any Certificate shall have been lost, stolen
or destroyed, upon the making and delivery of an affidavit of
that fact by the Person claiming such Certificate to be lost,
stolen or destroyed and, if required by the Surviving
Corporation, the posting by such Person of a bond in such
reasonable amount as the Surviving Corporation may direct as
indemnity against any claim that may be made against it with
respect to such Certificate, the Exchange Agent will issue in
exchange for such lost, stolen or destroyed Certificate the
Parent Shares and cash deliverable in respect thereof pursuant to
this Agreement.
10
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Company Disclosure Schedule, the
Company makes the following representations and warranties to
Parent and Merger Sub, as of the date of this Agreement and as of
the Effective Time.
4.1 ORGANIZATION AND STANDING.
(a) The Company (i) is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, (ii) has all requisite corporate
power and authority to own, operate and lease its properties and
carry on its business as now conducted, and (iii) is duly
qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the failure to so
qualify, or be in good standing, would have a material adverse
effect.
(b) The Company does not have any Subsidiaries other
than Noah Precision, Inc., a California corporation, and POU,
Inc. a California corporation (each a "COMPANY SUBSIDIARY").
Each Company Subsidiary (i) is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, (ii) has all requisite corporate
power and authority to carry on its business as now conducted,
and (iii) is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which
the failure to so qualify, or be in good standing, would have a
material adverse effect.
(c) Neither the Company nor Company Subsidiary has
(i) filed or had filed against it a petition in bankruptcy or a
petition to take advantage of any other insolvency act,
(ii) admitted in writing its inability to pay its debts
generally, (iii) made an assignment for the benefit of creditors,
(iv) consented to the appointment of a receiver for itself or any
substantial part of its property, or (v) generally committed any
act of insolvency (including the failure to pay obligations as
they become due) or bankruptcy.
(d) Neither the Company nor Company Subsidiary is in
violation of any provision of its respective articles of
incorporation, bylaws or other charter documents. The Company
Disclosure Statement sets forth (i) the full name of each Company
Subsidiary, its capitalization, and the ownership interest of
Company and each other Person (if any) therein, (ii) the
jurisdiction in which each Company Subsidiary is organized,
(iii) each jurisdiction in which the Company and each Company
Subsidiary is qualified to do business as a foreign Person,
(iv) a brief summary of the business and material operations of
each Company Subsidiary, and (v) the names of the current
directors and officers of the Company and each Company
Subsidiary. Company has made available to Parent accurate and
complete copies of the articles of incorporation, bylaws, and any
other charter documents, as currently in effect, of the Company
and each Company Subsidiary.
4.2 CAPITALIZATION.
(a) The authorized capital stock of the Company
consists of two classes of shares, Company common stock and
Company Preferred Stock. As of the Effective Date, (i) there are
30,000,000 Company Shares authorized, of which 11,891,641 Company
Shares are
11
issued and outstanding; (ii) there are 1,500,000 Company
Preferred Shares authorized, of which 1,275,000 Company Preferred
Shares are issued and outstanding, and (iii) Company Options to
acquire 700,000 Company Shares are outstanding. As of the
Effective Time, all Company Preferred Shares shall be converted
into Company Shares in accordance with the Company's Articles of
Incorporation.
(b) All of the issued and outstanding Company Shares
have been duly authorized, validly issued, are fully paid,
nonassessable and free of preemptive or similar rights. Other
than Company Options, there are no existing and outstanding
warrants, rights, options, subscriptions, convertible securities
or other agreements or commitments which obligate the Company to
issue, transfer or sell any shares of capital stock of the
Company or any Company Subsidiary other than the options granted
to the Persons described in Section 3.2(d)(i).
(c) Neither the Company nor any Company Subsidiary has
any outstanding bonds, debentures, notes or other obligations
pursuant to which the holders thereof have the right to vote (or
which are convertible into or exercisable for securities having
the right to vote) with the Company Shareholders on any matter.
4.3 AUTHORIZATION; ENFORCEABILITY; NO VIOLATION.
(a) The Company has full corporate power and authority
to execute and deliver this Agreement and to perform its
obligations hereunder.
(b) Subject only to the approval of this Agreement and
the transactions contemplated hereby by a majority of the Company
Shares in accordance with the California Law, all corporate
action necessary on the part of the Company for the execution,
delivery and performance of this Agreement has been duly taken.
(c) This Agreement constitutes (assuming this
Agreement is a valid and legally binding obligation of Parent and
Merger Sub) a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors' rights and general principles of
equity and public policy considerations (the "Enforceability
Exceptions").
(d) The execution, delivery and performance of this
Agreement will not result in any conflict with, breach or
violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default), termination or
forfeiture under (i) any terms or provisions of the Articles of
Incorporation or the Bylaws of the Company, (ii) to the Company's
knowledge, any statute, rule, regulation, judicial, governmental,
regulatory or administrative decree, order or judgment applicable
to the Company or any Company Subsidiary, or (iii) any agreement,
lease, license, permit or other instrument to which the Company
is a party or to which any of its assets are subject.
(e) There is no action, suit, proceeding or
investigation pending or, to the knowledge of the Company,
threatened against the Company that questions the validity of
this Agreement or the right of the Company to enter into this
Agreement or to consummate the transactions contemplated hereby.
12
4.4 NO CONSENTS |HiddenPara|
. No consent, approval, authorization, order, registration,
qualification or filing of or with any court or any regulatory
authority or any other governmental or administrative body is
required on the Company's part for the consummation by it of the
transactions contemplated by this Agreement, except (i) to the
extent set forth herein, notices and filings required in order to
comply with the Securities Act, the Exchange Act, and state
securities or "blue sky" laws, (ii) the filing of the Tax
Certificate, and (iii) the filing of the California Filing
Materials with the Secretary of State of California.
4.5 COMPLIANCE WITH LAWS |HiddenPara|
. The Company and each Company Subsidiary (i) have all Permits,
and each Permit is in full force and effect, and (ii) have made
all filings and registrations and the like, necessary or required
by law to conduct their respective businesses as currently
conducted. Neither the Company nor any Company Subsidiary has
received any governmental notice of any violation by such company
of any laws, rules, regulation or orders applicable to their
respective businesses. Neither the Company nor any Company
Subsidiary is in default or is not in compliance under any
Permits, and (b) to the knowledge of the Company, the business
and operations of the Company and each Company Subsidiary are in
compliance with all applicable foreign, federal, state, local and
county laws, ordinances, regulations, judgments, orders, decrees
or rules of any court, arbitrator or governmental, regulatory or
administrative agency or entity.
4.6 FINANCIAL STATEMENTS.
(a) The Company has delivered to Parent: (i) an
audited consolidated balance sheet of the Company and each
Company Subsidiary as at December 31, 1999 (including the notes
thereto), and the related consolidated statements of income,
retained earnings and cash flow for the fiscal year ended
December 31, 1999 (collectively, the "Financial Statements"),
together with the report thereon of Branch, Xxxx, Xxxxx & Xxxxxx
LLP, its independent certified accountants, and (ii) an unaudited
consolidated balance sheet of the Company and Company Subsidiary
as at February 29, 2000, and the related consolidated statements
of income, retained earnings and cash flow for the two months
then ended (collectively, the "Interim Financial Statements").
Each of the Financial Statements and Interim Financial Statements
fairly presents in all material respects the consolidated
financial position and the results of operations and cash flows
of the Company and each Company Subsidiary for the periods set
forth therein (subject, in the case of unaudited statements, to
normal year-end audit adjustments which would not be material in
amount or effect) in each case in accordance with GAAP as
consistently applied during the periods involved, except as may
be noted therein and subject to the fact that unaudited financial
statements do not contain full notes thereto. Neither the
Company nor any Company Subsidiary has any liabilities or
obligations required to be disclosed in a consolidated balance
sheet or the notes thereto prepared in accordance with GAAP,
except (i) liabilities or obligations reflected on, or reserved
against in, the Financial Statements or the Interim Financial
Statements or in the notes thereto or (ii) liabilities or
obligations incurred since February 29, 2000, in the ordinary
course of business, consistent with past practices. The
Company's financial reserves are adequate to cover claims already
incurred. The provision for taxes for the Company as set forth
in the Financial Statements and Interim Financial Statements is
adequate and accurate for taxes due and accrued to such date.
13
(b) Subject to any reserves set forth in the Financial
Statements and Interim Financial Statements, all of the accounts
receivable and notes receivable owing to the Company as of the
date hereof constitute, and as of the Effective Time will
constitute, valid and enforceable claims arising from bona fide
transactions in the ordinary course of business, and there are no
known or asserted claims, refusals to pay, or other rights of
set-off against any thereof. There is (i) no account debtor or
note debtor delinquent in its payment by more than 60 days,
(ii) no account debtor or note debtor that has refused (or, to
the best knowledge of the Company, threatened to refuse) to pay
its obligations for any reason, (iii) to the best knowledge of
the Company, no account debtor or note debtor that is insolvent
or bankrupt, and (iv) no account receivable or note receivable
which is pledged to any third party by the Company.
(c) The accounts receivable shown on the Financial
Statements and the Interim Financial Statements consisted only of
items that are fully collectible, good and payable within six
months after the Closing. The Company Disclosure Schedule lists
all accounts receivable, unbilled invoices and other debts due or
recorded in the records of the Company. The amount of all
accounts receivable, unbilled invoices and other debts due or
recorded in the records and books of account of the Company will
be good, payable and collectible in full in the ordinary course
of business within six months after the Closing; no contest with
respect to the amount or validity of any amount is pending; and
none of such accounts receivable or other debts is or will at the
Closing be subject to any counterclaim or set-off. The values at
which accounts receivable are carried reflect the historical
accounts receivable valuation policy of the Company which is
consistent with GAAP applied on a consistent basis.
(d) All accounts payable and notes payable by the
Company to third parties as of the date hereof arose, and as of
the Closing will have arisen, in the ordinary course of business,
and there is no such account payable or note payable delinquent
in its payment.
4.7 ABSENCE OF LITIGATION, ORDERS, JUDGMENTS.
(a) There are no actions, suits or proceedings pending
or, to the knowledge of the Company, threatened which involve
transactions of or otherwise relate to the Company, any Company
Subsidiary or any of their businesses or properties, at law or in
equity, or before any arbitrator of any kind, or before or by any
federal, state, municipal or other governmental department,
commission, board, bureau, agency or other instrumentality,
domestic or foreign.
(b) There are no outstanding orders, writs,
injunctions, decrees, judgments, awards, determinations or
directions, which involve transactions of or otherwise relate to
the Company, any Company Subsidiary or either of their businesses
or properties, of any court or arbitrator or under any
outstanding order, regulation or demand of any federal, state,
municipal or other governmental instrumentality, domestic or
foreign.
4.8 ABSENCE OF CERTAIN CHANGES |HiddenPara|
. Since February 29, 2000, the Company has conducted its
business only in the ordinary course of such business, and there
has not been (i) any Company Material Adverse Effect or any event
which is reasonably likely to result in a Company Material
Adverse Effect; (ii) any declaration, setting aside or payment of
any dividend or other distribution with respect to its capital
stock; or (iii) any material change in its accounting principles,
practices or methods.
14
4.9 TAXES |HiddenPara|
. The Company (i) has timely filed all material federal, state,
local, foreign, and other tax returns required to be filed by it
for tax years ended prior to the date of this Agreement or
requests for extensions have been timely filed and any such
request shall have been granted and not expired, and all such
returns are complete in all material respects, (ii) has paid or
accrued all taxes shown to be due and payable on such returns and
(iii) has properly accrued all such taxes for such periods
subsequent to the periods covered by such returns.
4.10 CONTRACTS |HiddenPara|
. Each Company Contract is a valid and legally binding
obligation of the Company and, to the knowledge of the Company,
the other parties thereto, enforceable against the Company and,
to the knowledge of the Company, the other parties thereto, in
accordance with its terms, subject to the Enforceability
Exceptions. The Company is not, and to the knowledge of the
Company no other party to any Company Contract is, in material
default thereof, except to the extent that any material default
would not result in a Company Material Adverse Effect. The
Company has not, and to the knowledge of the Company no other
party to any Company Contract has, performed any act or omitted
to perform any act which act or omission, with the giving of
notice or passage of time or otherwise, will become a material
default thereunder, except to the extent that any material
default would not result in a Company Material Adverse Effect.
4.11 INTELLECTUAL PROPERTY.
(a) "Intellectual Property" means:
(i) Issued Patents;
(ii) Patent Applications;
(iii) Copyrights;
(iv) Trademarks;
(v) any and all technology, ideas, inventions,
designs, proprietary information, unpublished research and
development information, manufacturing and operating information,
know-how, formulae, trade secrets and technical data, computer
programs, and all hardware, software and processes; and
(vi) all other intangible assets, properties and
rights (whether or not appropriate steps have been taken to
protect, under applicable law, such other intangible assets,
properties or rights).
(b) The Company owns or has the right to use all
Intellectual Property used in the operation of its business as
presently conducted, without any interference or conflict with or
misappropriation or infringement of the Intellectual Property
rights of others, other than any interference, conflict,
misappropriation or infringement which has not and will not
result in (i) a material adverse effect on the Company's ability
to manufacture or sell any of its material products or any
material line of products or otherwise to operate its business,
(ii) a material liability of the Company, or (iii) material
redesign or other corrective costs to the Company. The Company
has taken all action necessary to maintain and protect its rights
in the material
15
Intellectual Property that it owns or uses. Each item of
Intellectual Property owned or used by the Company hereunder will
be owned or available for use by the Surviving Corporation on
substantially identical terms and conditions immediately
subsequent to the Effective Time.
(c) The Company Disclosure Schedule sets forth all
Patents, registered Copyrights, registered Trademarks, joint
development agreements, licenses and agreements relating to
Intellectual Property owned or used by the Company. No consents
or waivers are required with respect to any Patent, registered
Copyright, registered Trademark, joint development agreements,
licenses or agreements relating to Intellectual Property owned or
used by the Company to consummate the transactions contemplated
by this Agreement.
(d) The Company has not, within the past four years,
interfered with, infringed upon, misappropriated, or otherwise
come into conflict with any Intellectual Property rights of
others other than any interference, infringement,
misappropriation or conflict which has not and will not result in
(i) a material adverse effect on the Company's ability to
manufacture or sell any of its material products or any material
line of products or otherwise to operate its business, (ii) a
material liability of the Company, or (iii) material redesign or
other corrective costs to the Company. The Company has not
received, and has no knowledge of, any charge, complaint, claim,
demand or notice alleging any such interference, infringement,
misappropriation, or conflict (including, without limitation, any
claim that the Company must license or refrain from using any
Intellectual Property rights of any other Person), or that the
Company's use of the Intellectual Property constitutes unfair
competition.
(e) To the knowledge of the Company, no fraud or
misrepresentation has been made by the Company or any of its
officers, directors or employees or the relevant inventors during
the prosecution of any of the Patents of the Company, nor has any
fraud or misrepresentation been included in any documentation for
or other disclosure of the Intellectual Property of the Company.
4.12 EMPLOYEE BENEFIT PLANS.
(a) The Company has delivered to Parent complete and
correct copies of the plan documents (including trust, investment
management or custodial arrangements) relating to each Company
Benefit Plan, all other programs and arrangements providing for
deferred compensation or health, life or other welfare benefits,
the most recent Form 5500s, and the most recent IRS determination
letter relating to each "employee benefit plan" as defined under
Section3(3) of ERISA.
(b) No Company Benefit Plan, any fiduciary thereof,
nor the Company has engaged in a prohibited transaction within
the meaning of Section 4975 of the Code, or Section 406 of ERISA,
or has incurred any liability or penalty under Section 4975 of
the Code or Section 502(i) of ERISA except for such liability or
penalty that would not result in a Company Material Adverse
Effect. Each Company Benefit Plan has been maintained and
administered in all material respects in compliance with its
terms and with ERISA and the Code, to the extent applicable
thereto.
16
(c) Neither the Company nor any ERISA Affiliate
(during the period of its affiliated status) has any existing
liability currently due and payable that has not been satisfied
in full under Title IV of ERISA or Section 412 of the Code except
for any liability that, if unsatisfied, would not result in a
Company Material Adverse Effect. There are no current plans to
terminate, whether voluntarily or involuntarily, any materially
underfunded pension plan of the Company or any ERISA Affiliate
that is subject to Title IV of ERISA.
(d) To the knowledge of the Company, there are no
pending or anticipated claims against or otherwise involving any
of the Company Benefit Plans and no suit, action or other
litigation (excluding claims for benefits incurred in the
ordinary course of the Company Benefit Plan activities) has been
brought against or with respect to any such Company Benefit Plan.
(e) All contributions required to be made as of the
date hereof to the Company Benefit Plans have been made or
provided for.
(f) The execution of, and performance of the
transactions contemplated by, this Agreement will not (either
alone or upon the occurrence of any additional or subsequent
events) constitute an event under any benefit plan, policy,
arrangement or agreement or any trust or loan that will or is
reasonably likely to result in any payment (whether of severance
pay or otherwise), acceleration, forgiveness of indebtedness,
vesting, distribution, increase in benefits or obligation to fund
benefits with respect to any employee of the Company.
(g) The Company has not entered into any severance
agreements or adopted any severance policies applicable to the
Company or its employees.
4.13 NO BROKERS |HiddenPara|
. The Company has not entered into any contract, arrangement or
understanding with any Person or firm which will or is reasonably
likely to result in the obligation of the Company, Parent or
Merger Sub to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby, except that the Company has
retained Xxxxxxxxx Capital LLC as its financial advisor. Other
than the foregoing arrangements, the Company is not aware of any
claim for payment of any finder's fees, brokerage or agent's
commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby. The services of Xxxxxxxxx
Capital LLC are to be paid for by the Company Shareholders as
described in Section 3.3(d); neither the Company nor the
Surviving Corporation shall have any liability therefor.
4.14 OPINION OF FINANCIAL ADVISOR |HiddenPara|
. The Company has received the opinion of Xxxxxxxxx Capital LLC
substantially to the effect that, as of the date hereof, the
Exchange Ratio and the transactions contemplated by this
Agreements are fair to the Company Shareholders from a financial
point of view.
4.15 PARENT STOCK OWNERSHIP |HiddenPara|
. Neither the Company nor any of its Subsidiaries owns any
Parent Shares or other securities convertible into Parent Shares.
4.16 ENVIRONMENTAL MATTERS.
17
(a) To the knowledge of the Company after due inquiry
and investigation, there has not been any violation of any
Environmental Requirements by the Company, any Company Subsidiary
or any Predecessor, nor has there been any third party claim or
demand based upon any Environmental Requirements against the
Company or any Predecessor.
(b) To the knowledge of the Company after due inquiry
and investigation, neither the Company nor any Company Subsidiary
has disposed of, stored or used any Hazardous Materials on, nor
has it transported any Hazardous Materials from, any of the
Company Real Properties owned, leased or occupied by the Company,
in violation of applicable Environmental Requirements other than
a disposal, storage, use or transport. To the knowledge of the
Company after due inquiry and investigation, no Predecessor has
disposed of, stored or used any Hazardous Materials on, nor has
any such Predecessor transported any Hazardous Materials from,
any of the Company Real Properties owned, leased or occupied by
such Predecessor, in violation of applicable Environmental
Requirements.
(c) To the knowledge of the Company after due inquiry
and investigation, none of the following exists at any of the
real property currently owned, leased or occupied by the Company
or any Company Subsidiary or existed at any of the Company Real
Properties at the time the Company or any Predecessor operated
there: (i) underground storage tanks, (ii) asbestos-containing
material in any friable or damaged form or condition,
(iii) materials or equipment containing polychlorinated biphenyls
(PCBs), or (iv) landfills or surface impoundments.
(d) To the knowledge of the Company after due inquiry
and investigation, none of the Company Real Properties is or has
been contaminated by any Hazardous Materials, in a manner that
has given or is reasonably likely to give rise to any material
liability on the part of the Company to any Person, including
without limitation any governmental authority, for response
costs, corrective action costs, personal injury, property damage,
natural resources damages or attorney fees, pursuant to
Environmental Requirements.
4.17 INSURANCE |HiddenPara|
. The Company maintains insurance with financially sound and
reputable insurers, in such amounts, and with such deductibles
and covering such risks as is customarily carried by companies
engaged in similar businesses and owning similar properties in
the localities where the Company is located.
4.18 PROPRIETARY INFORMATION AND INVENTIONS AND
CONFIDENTIALITY AGREEMENT |HiddenPara|
. Each employee, consultant, service provider, officer and
director of the Company and each Company Subsidiary has executed
a proprietary information and inventions and confidentiality
agreement, copies of which have been provided to Parent. The
Company is not aware that any of such Persons is in violation
thereof, and the Company will use its best efforts to prevent any
such violation.
4.19 ACCURACY OF DOCUMENTS AND INFORMATION |HiddenPara|
. The copies of all instruments, agreements, other
documents and written information delivered by the Company to
Parent or its counsel are and will be complete and correct in all
material respects as of the date of delivery thereof. No
representations or warranties made by the Company in this
Agreement, nor any document, written information, statement,
financial statement, letter, certificate or exhibit
18
prepared and furnished or to be prepared and furnished by the
Company or its representatives to Parent pursuant hereto or in
connection with the transactions contemplated hereby, contains or
will contain any untrue statement of material fact, or omits or
will omit to state a material fact necessary to make the
statements or facts contained herein or therein not misleading,
except that the Company makes no representations or warranties
concerning any forward-looking statements (except that such
statements were made in good faith based on the reasonable belief
of the Person making such statement) or any statements made by
third parties other than affiliates, employees, officers,
directors, agents and advisors of the Company. There is no
presently existing event, fact or condition that would have a
Company Material Adverse Effect or that could reasonably be
expected to do so, which has not been set forth in this Agreement
or the exhibits hereto, in the Company Disclosure Schedule or
otherwise disclosed by the Company to Parent in writing.
4.20 OFFICES; CAPITAL EQUIPMENT |HiddenPara|
. The offices and capital equipment of the Company and each
Company Subsidiary are in good operating condition and repair and
are adequate for the uses to which they are being put; and none
of such offices or capital equipment is in need of maintenance
and repairs except for ordinary and routine maintenance and
repairs that are not material in nature or cost.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except as set forth in the Parent Disclosure Schedule or in
the Parent Reports filed with the Commission prior to the date
hereof, Parent and Merger Sub make the following representations
and warranties to the Company as of the date of this Agreement
and as of the Effective Date.
5.1 ORGANIZATION AND STANDING.
(a) Parent and each of its Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, (ii) has all
requisite corporate power and authority to own, operate and lease
its properties and carry on its business as now conducted, and
(iii) is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction in which the failure
to so qualify, or be in good standing, would have a Parent
Material Adverse Effect.
(b) Merger Sub is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation. Merger Sub was organized for
purposes of consummating the transactions contemplated by this
Agreement. Merger Sub has not engaged in any activity other than
as provided in, or contemplated by, this Agreement and, as of the
date hereof, has no liabilities of any nature, contingent or
otherwise, other than liabilities or obligations that may arise
from this Agreement or the transactions contemplated hereby. The
authorized capital stock of Merger Sub consists of 100 shares of
Merger Sub Common Stock, all of which are validly issued, fully
paid and nonassessable and are owned by Parent. Merger Sub is a
newly formed subsidiary of Parent with no significant business or
assets other than the Parent Shares. Prior to the Merger, Parent
will be in control of Merger Sub (within the meaning of Section
368(c)(1) of the Code).
19
(c) Neither Parent nor any of its Subsidiaries
(including without limitation Merger Sub) has (i) filed or had
filed against it a petition in bankruptcy or a petition to take
advantage of any other insolvency act, (ii) admitted in writing
its inability to pay its debts generally, (iii) made an
assignment for the benefit of creditors, (iv) consented to the
appointment of a receiver for itself or any substantial part of
its property or (v) generally committed any act of insolvency
(including the failure to pay obligations as they become due) or
bankruptcy.
5.2 CAPITALIZATION.
(a) The authorized capital stock of Parent consists of
40,000,000 Parent Shares and Parent Preferred Stock. As of
February 25, 2000, there were 28,440,881 Parent Shares, and no
shares of Parent Preferred Stock, issued and outstanding. From
such date to the date of this Agreement, no additional shares of
capital stock of Parent have been issued, except pursuant to the
exercise of Parent Options. As of February 25, 2000, there were
2,981,639 Parent Options to acquire Parent Shares that were
outstanding. From such date to the date of this Agreement, no
additional Parent Options have been granted.
(b) All of the issued and outstanding Parent Shares
have been duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights. Other than Parent
Options, there are no existing and outstanding warrants, rights,
options, subscriptions, convertible securities or other
agreements or commitments which obligate Parent to issue,
transfer or sell any shares of capital stock of Parent or Merger
Sub.
(c) All of the Parent Shares issuable as consideration
in the Merger at the Effective Time, when issued in accordance
with the terms and conditions of this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable and free
of preemptive rights.
(d) Neither Parent nor any of its Subsidiaries
(including without limitation Merger Sub) has any outstanding
bonds, debentures, notes or other obligations pursuant to which
the holders thereof have the right to vote (or which are
convertible into or exercisable for securities having the right
to vote) with the stockholders of Parent on any matter.
5.3 AUTHORIZATION; ENFORCEABILITY; NO VIOLATION.
(a) Each of Parent and Merger Sub has full corporate
power and authority to execute and deliver this Agreement. and
to perform its respective obligations hereunder.
(b) All corporate action necessary on the part of
Parent and Merger Sub for the execution, delivery and performance
of this Agreement has been duly taken. No approval of the
stockholders of Parent is required by applicable law or the rules
of the Nasdaq National Market in connection with the consummation
by Parent or Merger Sub of the transactions contemplated hereby.
(c) This Agreement constitutes (assuming this
Agreement is a valid and binding obligation of the Company), a
valid and legally binding obligation of each of Parent and Merger
Sub, enforceable against Parent and Merger Sub, as applicable, in
accordance with its terms, subject to the Enforceability
Exceptions.
20
(d) The execution, delivery and performance of this
Agreement will not result in any conflict with, breach or
violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default), termination or
forfeiture under (i) any terms or provisions of the Certificate
of Incorporation or the Bylaws of Parent or any of its
Subsidiaries (including without limitation Merger Sub), (ii) any
statute, rule, regulation, judicial, governmental, regulatory or
administrative decree, order or judgment applicable to Parent or
any of its Subsidiaries (including without limitation Merger
Sub), or (iii) any agreement, lease, license, permit or other
instrument to which Parent or any of its Subsidiaries (including
without limitation Merger Sub) is a party or to which any of its
assets are subject, except where any such breach, violation,
default, termination or forfeiture would not have or result in a
Parent Material Adverse Effect.
(e) There is no action, suit, proceeding or
investigation pending or threatened against Parent or any of its
Subsidiaries that questions the validity of this Agreement or the
right of Parent or Merger Sub to enter into this Agreement or to
consummate the transactions contemplated hereby.
5.4 NO CONSENTS |HiddenPara|
. No consent, approval, authorization, order, registration,
qualification or filing of or with any court or any regulatory
authority or any other governmental or administrative body is
required on the part of Parent or any of its Subsidiaries for the
consummation by Parent and Merger Sub of the transactions
contemplated by this Agreement, except (i) to the extent set
forth herein, notices and filings required in order to comply
with the Securities Act, the Exchange Act and state securities or
"blue sky" laws, (ii) the filing of the Tax Certificate, and
(iii) the filing of the California Filing Materials with the
Secretary of State of California.
5.5 PARENT REPORTS.
(a) Parent has filed all Parent Reports since
November 17, 1995. As of their respective dates, the Parent
Reports complied as to form in all material respects with the
requirements of the Securities Act or the Exchange Act, as the
case may be, and the applicable rules and regulations promulgated
thereunder. Except to the extent that information contained in
any Parent Report has been amended, revised or superseded by a
Parent Report subsequently filed and publicly available prior to
the date of this Agreement, none of the Parent Reports, when
filed, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) Each of the consolidated balance sheets of Parent
included in or incorporated by reference into the Parent Reports
(including the related notes and schedules) fairly presents in
all material respects the consolidated financial position of
Parent and its Subsidiaries as of its date, and each of the
consolidated statements of income, stockholders' equity and cash
flows of Parent included in or incorporated by reference into the
Parent Reports (including any related notes and schedules) fairly
presents in all material respects the income, stockholders'
equity and cash flows, as the case may be, of Parent and its
Subsidiaries for the periods set forth therein (subject, in the
case of unaudited statements, to normal year-end audit
adjustments which would not be material in amount or effect), in
each case in accordance with
21
GAAP, except as may be noted therein and subject to the fact that
unaudited financial statements do not contain full notes thereto.
Parent and its Subsidiaries do not have any liabilities or
obligations required to be disclosed in a consolidated balance
sheet or the notes thereto prepared in accordance with GAAP,
except (i) liabilities or obligations reflected on, or reserved
against in, a consolidated balance sheet of Parent or in the
notes thereto, and included in the Parent Reports,
(ii) liabilities or obligations incurred since September 30, 1999
in the ordinary course of business, consistent with past
practices, or (iii) liabilities disclosed in a Parent Report.
5.6 NO BROKERS |HiddenPara| Neither Parent nor any of its
Subsidiaries has entered into any contract, arrangement or
understanding with any Person or firm which will or is reasonably
likely to result in the obligation of the Company, Parent or
Merger Sub to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the
transactions contemplated hereby. Other than the foregoing
arrangements, Parent is not aware of any claim for payment of any
finder's fees, brokerage or agent's commissions or other like
payments in connection with the negotiations leading to this
Agreement or the consummation of the transactions contemplated
hereby.
5.7 NO REACQUISITION OF COMPANY SHARES |HiddenPara| Parent
has no plan or intention following the Merger to reacquire any
shares of its capital stock issued in connection with this
Agreement. Parent has no plan or intention to cause Company to
issue, after the Merger, additional shares of stock (or rights to
acquire shares of Company stock) that would result in Parent
losing the ability to vote at least 80% of the total number of
shares of all classes of stock of the Company.
5.8 INVESTMENT COMPANY |HiddenPara| Neither Parent nor
Merger Sub is an investment company within the meaning of Section
368(a)(2)(F)(iii) of the Code.
5.9 CERTAIN TAX MATTERS |HiddenPara|
(a) Following the Merger, Parent will hold at least
90% of the fair market value of its net assets, at least 70% of
the fair market value of its gross assets, at least 90% of the
fair market value of Merger Sub's net assets, and at least 70% of
the fair market value of Merger Sub's gross assets held
immediately prior to the Merger. For this purpose, Merger Sub's
assets immediately prior to the Merger shall be determined
without regard to any Parent Shares distributed in connection
with the Merger.
(b) No shares of Merger Sub have been or will be used
as consideration or issued to Company Shareholders in the Merger.
(c) The total fair market value of all consideration
other than Parent Shares received by Company Shareholders in
exchange for their Company Shares in the Merger (including,
without limitation, cash paid to Company Shareholders, if any, or
in lieu of fractional shares of Parent Shares) will be less than
20% of the aggregate fair market value of the Company Shares
outstanding immediately prior to the Merger.
(d) There is no intercorporate indebtedness existing
between Parent and Company or between Merger Sub and Company that
was issued, acquired or will be settled at a
22
discount, and except as provided in this Agreement, Parent will
assume no liabilities of Company or Company Shareholders in
connection with the Merger. Merger.
(e) Parent has no present plan or intention following
the Closing to liquidate the Company, merge the Company with or
into another corporation, sell or otherwise dispose of the
capital stock of the Company (except for transfers of such stock
to corporations controlled by Parent within the meaning of Code
Section 368(a)(2)(C)), or cause the Company to sell or otherwise
dispose of any of its assets, except for dispositions made in the
ordinary course of business or transfers of assets to
corporations controlled by the Company (within the meaning of
Code Section 368(a)(2)(C)). Merger.
(f) Parent intends that, following the Merger, the
Company will continue its historic business or use a significant
portion of its historic business in a business.
ARTICLE 6.
COVENANTS
6.1 PUBLICITY |HiddenPara|
. The initial press release relating to this Agreement shall be
a joint press release and thereafter the Company and Parent
shall, subject to their respective legal obligations (including
requirements of stock exchanges and similar self regulatory
bodies), consult with each other, and use reasonable efforts to
agree upon the text of any press release, before issuing any such
press release or otherwise making public statements with respect
to the transactions contemplated hereby and in making any filings
with any federal or state governmental or regulatory agency or
with any national securities exchange with respect thereto.
6.2 REGISTRATION STATEMENT.
(a) Parent and the Company shall cooperate and
promptly prepare and Parent shall file with the Commission within
45 days after the Closing Date the Registration Statement.
(b) Parent shall use reasonable efforts to cause the
Registration Statement to comply as to form in all material
respects with the applicable provisions of the Securities Act,
the Exchange Act and the rules and regulations thereunder.
Parent shall use all reasonable efforts, and the Company shall
cooperate with Parent, (i) to have the Registration Statement
declared effective by the Commission as promptly as practicable,
and (ii) to obtain timely any and all necessary state securities
or "blue sky" permits or approvals required to carry out the
transactions contemplated by this Agreement.
(c) The information supplied by the Company for
inclusion or incorporation by reference in the Registration
Statement shall not, at the time the Registration Statement is
declared effective, contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light
of the circumstances under which they are, made, not misleading.
(d) The information supplied by Parent for inclusion
or incorporation by reference in the Registration Statement shall
not, at the time the Registration Statement is declared
effective, contain any untrue statement of a material fact or
omit to state a material fact
23
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they are
made, not misleading.
(e) Parent will advise the Company, promptly after it
receives notice thereof, of the time when the Registration
Statement has become effective or any supplement or amendment has
been filed, the issuance of any stop order, the suspension of the
qualification of the Parent Common Stock issuable in connection
with the Merger for offering or sale in any jurisdiction, or any
request by the Commission for amendment of the Registration
Statement or comments thereon and responses thereto or requests
by the Commission for additional information.
(f) Parent shall maintain the effectiveness of the
Registration Statement until all Parent Shares issued in
connection with the Merger are sold or may be sold pursuant to
Rule 144 promulgated under the Securities Act, so long as Rule
415, or any successor rule under the Securities Act, permits an
offering on a continuous or delayed basis, and provided further
that applicable rules under the Securities Act governing the
obligation to file a post-effective amendment permit (in lieu of
filing a post-effective amendment that (i) includes any
prospectus required by Section 10(a)(3) of the Securities Act, or
(ii) reflects facts or events representing a material or
fundamental change in the information set forth in the
Registration Statement) the incorporation by reference of
information required to be included in clauses (i) and (ii) above
to be contained in periodic reports filed pursuant to Section 13
or 15(d) of the Exchange Act in the Registration Statement.
6.3 LISTING APPLICATION |HiddenPara|
. Parent shall promptly prepare and submit to the Nasdaq
National Market a listing application covering the Parent Shares
issuable in the Merger, and shall use its best efforts to obtain,
prior to the effectiveness of the Registration Statement,
approval for the listing of such Parent Common Stock, subject to
official notice of issuance.
6.4 EXPENSES |HiddenPara|
. Whether or not the Merger is consummated, all costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such expenses except as expressly provided herein and
except that all costs and fees associated with the filing of the
Registration Statement with the Commission shall be paid by
Parent. The Company shall cause the Company Shareholders to pay
any and all fees and expenses of Xxxxxxxxx Capital LLC in
relation to the Merger.
6.5 TAKEOVER STATUTE |HiddenPara|
. If any "fair price," "moratorium," "control share
acquisition" or other form of anti-takeover statute or regulation
shall become applicable to the transactions contemplated hereby,
the Company and the Company Board shall grant such approvals and
take such actions as are reasonably necessary so that the
transactions contemplated hereby may be consummated as promptly
as practicable on the terms contemplated hereby and otherwise act
to eliminate or minimize the effects of such statute or
regulation on the transactions contemplated hereby.
24
ARTICLE 7.
CONDITIONS TO CLOSING
7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER |HiddenPara|
. The respective obligation of each party to effect the Merger
shall be subject to the fulfillment at or prior to the Closing
Date of the following conditions:
(a) This Agreement and the transactions contemplated
hereby shall have been approved by the requisite vote of the
Company Shareholders, the Company Board and the Parent Board.
(b) None of the parties hereto shall be subject to any
order or injunction of a court of competent jurisdiction in the
United States which prohibits the consummation of the
transactions contemplated by this Agreement. In the event any
such order or injunction shall have been issued, each party
agrees to use its best efforts to have any such injunction
lifted.
(c) All consents, authorizations, orders and approvals
of (or filings or registrations with) any governmental
commission, board or other regulatory body required in connection
with the execution, delivery and performance of this Agreement
shall have been obtained or made, except for filings in
connection with the Merger and any other documents required to be
filed after the Effective Time and except where the failure to
have obtained or made any such consent, authorization, order,
approval, filing or registration would not have a material
adverse effect on the business of Parent (and its Subsidiaries)
and the Company, taken as a whole, following the Effective Time.
(d) The Surviving Corporation shall have entered into
an employment agreement with Xxxxx Xxxxx in form and substance
satisfactory to Xxxxx Xxxxx and Parent. Such employment
agreement shall provide that Parent shall employ Xxxxx Xxxxx if
the Surviving Corporation dissolves or becomes insolvent.
(e) The Surviving Corporation shall have agreed to pay
to each non-salaried employee of the Company a bonus to be
employed by the Surviving Corporation after the Closing Date.
Each such bonus shall be in an amount equal to the amount paid to
such employee for the three (3) month period immediately prior to
the Closing Date. Such bonus shall be paid to each employee on
the three (3) month anniversary of the Closing Date so long as
such employee has not voluntarily terminated his or her
employment with the Surviving Corporation prior to such date.
The Surviving Corporation's obligation under this clause (e)
shall be guaranteed by Parent.
(f) This Agreement shall have been executed and
delivered by Parent and the Company.
7.2 CONDITIONS TO OBLIGATION OF THE COMPANY TO EFFECT THE
MERGER |HiddenPara|
. The obligation of the Company to effect the Merger shall be
subject to the fulfillment at or prior to the Closing Date of the
following conditions:
(a) Parent shall have performed in all material
respects its agreements contained in this Agreement required to
be performed on or prior to the Closing Date, the
25
representations and warranties of Parent and Merger Sub contained
in this Agreement and in any document delivered in connection
herewith shall be true and correct in all material respects as of
the Closing Date, except that those representations and
warranties which address matters only as of a particular date
shall have been true and correct as of such date, and the Company
shall have received a certificate of the respective officers of
Parent and Merger Sub, dated the Closing Date, certifying to such
effect.
(b) The Company shall have received a legal opinion of
legal counsel to Parent, dated the Closing Date or a date not
more than five business days prior to the Closing Date, in form
and substance satisfactory to the Company.
7.3 CONDITIONS TO OBLIGATION OF PARENT AND MERGER SUB TO
EFFECT THE MERGER |HiddenPara|
. The obligations of Parent and Merger Sub to effect the Merger
shall be subject to the fulfillment at or prior to the Closing
Date of the following conditions:
(a) The Company shall have performed in all material
respects its agreements contained in this Agreement required to
be performed on or prior to the Closing Date, the representations
and warranties of the Company contained in this Agreement and in
any document delivered in connection herewith shall be true and
correct in all material respects as of the Closing Date, except
that those representations and warranties which address matters
only as of a particular date shall have been true and correct as
of such date, and Parent shall have received an officer's
certificate of the Company, dated the Closing Date, certifying to
such effect.
(b) Parent shall have received a letter of Xxxxxx
Xxxxxxxx LLP, its independent public accountants, dated as of the
Closing Date, in form and substance reasonably satisfactory to
Parent, stating that such accountants concur with management's
conclusion that the Merger will qualify as a transaction to be
accounted for in accordance with the pooling of interests method
of accounting under the requirements of APB No. 16.
(c) Parent shall have received an undertaking, in form
and substance satisfactory to Parent, from each Company
Shareholder and from Xxxxxxxxx Capital LLC, that such Person will
continue as the beneficial owner of such Parent Company Stock and
will not transfer or otherwise dispose of any Parent Common Stock
until such time as the period required to account for the Merger
as a pooling of interests in accordance with XXX Xx. 00 has
ended.
(d) The Escrow Agreement shall have been executed by
or on behalf of each of the Company Shareholders and delivered to
Parent.
(e) Parent shall have received the Financial
Statements and Interim Financial Statements together with the
Company's auditors opinion and management letters related
thereto.
(f) Parent shall have received written notice from
Xxxxxxxxx Capital LLC that all of the fees and expenses owing by
the Company to Xxxxxxxxx Capital LLC shall be satisfied in full
upon receipt by Xxxxxxxxx Capital LLC of the Parent Shares as
described in Section 3.3(d). Such notice shall confirm that the
representations and warranties made by the Company Shareholders
in clauses (ii) through (viii) of the Escrow Agreement are also
applicable to, and
26
true with respect to, Xxxxxxxxx Capital LLC, as if Xxxxxxxxx
Capital LLC had itself made such representations and warranties.
(g) Parent shall have received a legal opinion of
legal counsel to the Company, dated the Closing Date or a date
not more than five business days prior to the Closing Date, in
form and substance satisfactory to Parent.
ARTICLE 8.
TERMINATION
8.1 TERMINATION BY EITHER PARENT OR THE COMPANY
|HiddenPara|
. This Agreement may be terminated and the Merger may be
abandoned by action of the Company Board or Parent Board if a
United States federal or state court of competent jurisdiction or
United States federal or state governmental, regulatory or
administrative agency or commission shall have issued an order,
decree or ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and nonappealable; provided,
that the party seeking to terminate this Agreement pursuant to
this Section 8.1 shall have used all reasonable efforts to remove
such injunction, order or decree.
8.2 EXTENSION; WAIVER |HiddenPara|
. At any time prior to the Effective Time, any party hereto, by
action taken by its Board of Directors, may, to the extent
legally allowed, (a) extend the time for the performance of any
of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties
made to such party contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the
agreements or conditions for the benefit of such party contained
herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
ARTICLE 9.
GENERAL PROVISIONS
9.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
|HiddenPara|
. The representations, warranties and covenants in this
Agreement or in any instrument delivered pursuant to this
Agreement shall not survive the Merger; provided, however, that
(a) the representatives and warranties contained in Article 4 and
Article 5 shall survive the Merger for a period of one (1) year
from the Closing Date, and (b) the covenants contained in
Article 3, Section 6.9, and this Article 9 shall survive the
Merger, but not beyond the extent, if any, specified therein.
9.2 NOTICES |HiddenPara|
. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by facsimile transmission and
by courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and
first-class postage prepaid), addressed as follows:
27
If to Parent or Merger Sub:
Advanced Energy Industries, Inc.
0000 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attn.: Xxxxxxx X. Xxxx
Facsimile: 000-000-0000
with copies to:
Xxxxxx Xxxx & Priest LLP
000 Xxxx Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn.: Xxx X. Xxxxxxxxx, Esq.
Facsimile: 000 000-0000
If to the Company:
Noah Holdings, Inc.
0000 Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxxx, Chief Executive Officer
Facsimile: (000) 000-0000
with copies to:
Xxxxxxx & Xxxxxx
The Xxxxxxx Building
00 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as any party shall specify by written
notice so given, and such notice shall be deemed to have been
delivered as of the date so telecommunicated, personally
delivered or mailed.
9.3 ASSIGNMENT, BINDING EFFECT |HiddenPara|
. Neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties. Subject to the
preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and assigns. Notwithstanding anything
contained in this Agreement to the contrary, nothing in this
Agreement, expressed or implied, is intended to confer on any
Person other than the parties hereto or their respective heirs,
successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
28
9.4 ENTIRE AGREEMENT |HiddenPara|
. This Agreement, the Exhibits, the Company Disclosure Schedule,
the Parent Disclosure Schedule, the Non-Disclosure Agreement and
any documents delivered by the parties in connection herewith
constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and
understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement
shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
9.5 AMENDMENT |HiddenPara|
. This Agreement may be amended by the parties hereto at any
time before or after approval of the Merger by the Company
Shareholders, but after any such shareholder approval, no
amendment shall be made which by law requires the further
approval of stockholders without obtaining such further approval.
This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
9.6 GOVERNING LAW |HiddenPara|
. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without
regard to its rules of conflict of laws.
9.7 COUNTERPARTS |HiddenPara|
. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute one and the same instrument. Each
counterpart may consist of a number of copies hereof each signed
by less than all, but together signed by all of the parties
hereto.
9.8 HEADINGS |HiddenPara|
. Headings of the Articles and Sections of this Agreement are
for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
9.9 INTERPRETATION |HiddenPara|
. In this Agreement, unless the context otherwise requires,
words describing the singular shall include the plural and vice
versa, and words denoting any gender shall include all genders
and words denoting natural persons shall include corporations,
partnerships and other business entities and vice versa.
9.10 WAIVERS |HiddenPara|
. Except as provided in this Agreement, no action taken pursuant
to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance
with any representations, warranties, covenants or agreements
contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the
same or any other provision hereunder.
9.11 INCORPORATION OF EXHIBITS |HiddenPara|
. The Company Disclosure Schedule, the Parent Disclosure
Schedule and all Exhibits attached hereto and referred to herein
are hereby incorporated herein and made a part hereof for all
purposes as if fully set forth herein.
9.12 SEVERABILITY |HiddenPara|
. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the
remaining terms and provisions of this Agreement or affecting the
validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of
this Agreement is so
29
broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
9.13 ENFORCEMENT OF AGREEMENT |HiddenPara|
. The parties hereto agree that irreparable damage would occur
in the event that any of the provisions of this Agreement was not
performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and
provisions hereof in any California Court, this being in addition
to any other remedy to which they are entitled at law or in
equity.
9.14 INDEMNITY |HiddenPara|
. At any time after the Effective Time, the exclusive remedy
of the Parent Member Group (as defined in the Escrow Agreement)
for any breaches or misrepresentations shall be to resort to the
Indemnity Fund (as defined in the Escrow Agreement), other than
for any damages sustained by the Parent Member Group in the event
of fraud.
30
IN WITNESS WHEREOF, the parties have executed this Agreement
and Plan of Reorganization and caused the same to be duly
delivered on their behalf on the day and year set forth in the
Preamble hereto.
COMPANY: NOAH HOLDINGS, INC.
By: /s/ XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
MERGER SUB: AE CAL MERGER SUB, INC.
By: /s/ XXXXXX XXXXXXXXX
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
PARENT: ADVANCED ENERGY INDUSTRIES, INC.
By: /s/ XXXXXX XXXXXXXXX
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
