SHARE PURCHASE AND TRANSFER AGREEMENT
between
1. Dipl. Phys. Xxxxx Xxxxxxx,
born on October 15, 1940 in Flensburg,
residing at Xxxxxxxxxxxxxx 00,
00000 X(xxxx)xxx, Xxxxxxx
hereinafter referred to as "Seller",
and
2. Technical Instrument Company with its business address at 000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, XXX
hereinafter referred to as "Buyer"
3. Syncotec Neue Technologien und Instrumente GmbH, Xxxxxxxxxxxx 0, 00000
X(xxxx)xxx, a company registered in the Commercial Register of Wetzlar
under HRB Xx. 000, Xxxxxxx
hereinafter referred to as the "GmbH"
4. Xxxxx Xxxxxxx,
born on March 13, 1940 in A(beta)lar, Germany
residing at Xxxxxxxxxxxxxx 00
00000 X(xxxx)xxx, Xxxxxxx
hereinafter referred to as "Xxx. Xxxxxxx"
WHEREAS, the GmbH was established by Seller in 1983 for the purpose of
developing, manufacturing and distributing high technology products in Europe;
and
WHEREAS, the GmbH has a stated capital of one hundred thousand (DM100,000)
Deutsche Xxxx, consisting of two shares with a par value of fifty thousand
(DM50,000) Deutsche Xxxx each; and
WHEREAS, pursuant to a Share Purchase and Transfer Agreement made between
Seller and Buyer on June 30, 1997, by notarial deed, recorded at notary Xxxxx
Zatzsch, Frankfurt/ Main, No Z434/ 1997, Buyer acquired from Seller one share
with a par value of fifty thousand (DM50,000) Deutsche Xxxx, representing fifty
(50%) percent of the equity of GmbH; and
WHEREAS, Seller remains the owner of one (1) GmbH share with a par value of
fifty thousand (DM50,000) Deutsche Xxxx, representing fifty (50%) percent of the
total equity of GmbH (hereinafter the "Share"); and
WHEREAS, Seller is interested to sell the Share and the Buyer which is a
wholly owned subsidiary of Zygo Corporation ("Zygo"), based on the
representations and warranties made by Seller and in accordance with the
provisions of this Agreement, is interested in acquiring the Share; and
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WHEREAS, Seller and Buyer are desirous to consummate this Share Purchase
and Transfer Agreement simultaneously herewith.
NOW, THEREFORE, the parties agree as follows:
I.
Takeover Accounts; Indemnification
1. Buyer and Seller will cause the GmbH after June 30, 1997, in cooperation
with the tax adviser Steuerburo Xxxxxx, Xx xxx Xxxxxxxx 00 X - 00000
Xxxxxxxxxxxxx, Xxxxxxx ("Seller's Accountant"), to prepare its financial
tax statements (balance sheet and profit and loss account) as of June 30,
1997 ("Balance Sheet Date"). These financial statements ("Takeover
Accounts") shall be prepared in accordance with accounting and valuation
principles generally accepted in the Federal Republic of Germany and such
accounting and valuation principles generally accepted in the Federal
Republic of Germany shall be applied consistently and without change as
used in the December 31, 1996 year-end accounts of the GmbH including
without limitation adjustments and depreciation.
2. Buyer will instruct the Accounting Department of its parent company (the
"Accounting Department") and in co-operation with KPMG Deutsche
Treuhand-Gesellschaft ("Buyer's Accountant") to review the Takeover
Accounts. Seller and the GmbH will permit the Accounting Department and
Buyer's Accountant to
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carry out this review and will give them access to all books, records and
information as is necessary to carry out such review. In particular, they
shall permit the Accounting Department and the Buyer's Accountant to
participate in a physical inventory taking as of July 31, 1997. The
Managing Director of the GmbH will give the customary declaration of
completeness for the Takeover Accounts.
3. If the Accounting Department cannot agree with the Seller's Accountant on
the Takeover Accounts prepared by the GmbH, the points at issue shall be
decided with binding effect on both Parties hereto by an arbitrator expert
(Schiedsgutachter). If the Parties cannot agree on the arbitrator to be
appointed, he or she shall be appointed, at the request of either Party, by
the Institut der Wirtschaftsprufer e.V., Dusseldorf. The fees of such
arbitration shall be evenly split among the Parties. It is understood and
agreed that the decision of the arbitrator experts shall be binding solely
for the purposes of the computation of the consideration for the Shares, as
provided in s. IV. hereof.
4. The Seller undertakes to indemnify
(a) the GmbH and the Buyer against any and all (i) liabilities (whether
accrued or contingent and including tax liabilities) and risks
existing on the Balance Sheet Date or arising from acts, omissions,
events or circumstances occurring at any time up to and including the
date of the execution of this Share Purchase and Transfer Agreement
(the "Closing Date") to the extent that such liabilities or risks are
not shown or reserved against in the Takeover Accounts, except those
risks which are
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fully covered by the GmbH's insurance policies and have been
acknowledged by such insurers or (ii) any misrepresentation or breach
of covenant by or on the part of the GmbH hereunder;
(b) the GmbH and Buyer from and against all personal liabilities
(including tax liabilities) of Seller to the extent that the GmbH or
Buyer should, for any reason whatsoever be held responsible for such
liabilities or such responsibility should be asserted.
The indemnification provided for in subsection 4(a)(i) above is limited to
50% (which represent the Seller's pro-rata-share in GmbH's capital) of such
liabilities.
II.
Sale and Transfer of Share
1. Seller hereby sells, transfers and assigns to Buyer all right, title and
interest in his GmbH share as defined in the Recitals above with a par
value of fifty thousand (DM50,000) Deutsche Xxxx, which share represents
fifty (50%) percent in the stated capital of GmbH, including all and any
rights attached and connected with the ownership of such Share. Buyer
accepts such sale, transfer and assignment of the Share. The transfer of
the Share and its assignment as well shall take place simultaneously
herewith.
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The transfer shall be deemed between the parties effective as of September
1, 1997.
2. The shareholders' meeting of GmbH has approved and GmbH approves the sale
and transfer pursuant to Sect. 9 of the Articles of Association. A
certified copy of the resolution shall be attached hereto as Exhibit 1.
3. The GmbH hereby acknowledges the transfer pursuant to Sect. 16 para. 1
German GmbH-Law.
4. Buyer and Seller as well as GmbH acting through its managing director, by
waiving all formalities under statutory laws and under the Articles of
Incorporation, hereby approve the sale and transfer of the Share as
described above to the Buyer.
5. Seller represents and warrants to Buyer that the Share represents fifty
(50%) percent of the entire share capital of the GmbH and that the Share is
fully paid up in an amount equal to the nominal value and not repaid and
not subject to assessments of any kind, free and clear from all liens,
charges and encumbrances and that Seller is free to make this disposition
of the Share to Buyer, and that all required corporate action has been duly
taken. There are no options, warrants, agreements or other rights
outstanding to acquire any shares of GmbH.
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III.
Management
Commencing on September 1, 1997, Seller shall continue to serve as managing
director of GmbH pursuant to a new three (3) year employment agreement. The
Draft Employment Agreement is attached to this Share Purchase and Transfer
Agreement as Exhibit 2 for evidentiary purposes.
IV.
Consideration
1. The entire consideration (the "Consideration") for the sale and transfer of
the Share of GmbH sold to Buyer pursuant to Part II above, and all
transactions described above in the recitals and all other obligations
undertaken by Seller hereunder shall be the purchase price (the "Purchase
Price") for the Share.
2. The Purchase Price shall be the aggregate of the amount of two million six
hundred fifty thousand (DM 2,650,000) Deutsche Xxxx, plus fifty (50%)
percent of the net book value (net value of assets less net value of
liabilities) of GmbH as of June 30, 1997 as reported on the Takeover
Accounts (the "Aggregate Closing Cash Purchase Price").
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3. Except as provided in Part VII, Section 6, within five (5) days from the
execution of this Share Purchase and Transfer Agreement, Buyer shall pay
two thirds (2/3) of the Purchase Price in the form of a wire transfer to
Seller at his bank account No. 0000000 00 with Dresdner Bank AG in
Giessen/Wetzlar (SWIFT DRESD DE FF 513/BLZ 513 800 40); and shall pay the
remaining third by delivery of registered shares of common stock of Zygo
Corporation to Seller. The calculation of the number of Zygo shares to be
so delivered shall be based upon the average closing price on the NASDAQ
during the ten (10) business days immediately preceding the Closing Date,
converted to DM at the exchange rate published in the Wall Street Journal
on the business day immediately preceding the Closing Date.
4. With respect to the Aggregate Closing Cash Purchase Price the parties agree
as follows:
(a) As soon as practicable and in any event no later than ninety (90) days
after the Closing Date, the Buyer shall deliver to the Seller a
proposed actual balance sheet of the Company as of the Closing Date,
in accordance with accounting and valuation principles generally
accepted in the Federal Republic of Germany and on a basis consistent
with the Takeover Accounts (the "Closing Date Balance Sheet").
(b) As soon as practicable but in no event more than thirty (30) days
after receipt of the proposed Closing Date Balance Sheet, the Seller
shall inform the Buyer in writing that either the proposed Closing
Date Balance Sheet is acceptable or object to the proposed Closing
Date Balance
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Sheet in writing setting forth a specific description of the Seller's
objections (it being agreed that the failure of the Seller to deliver
such written notice to the Buyer within such thirty (30) day period
shall be deemed acceptance by the Seller). If the Seller objects as
provided above and if the Buyer does not agree with the Seller's
objections, if any (it being agreed that the failure of the Buyer to
deliver written notice to the Seller of the Buyer's disagreement with
the Seller's objections shall be deemed acceptance by the Buyer), or
such objections are not resolved on a mutually agreeable basis within
thirty (30) days after the Buyer's receipt of the Seller's objections,
any such disagreement shall be promptly submitted to a mutually
acceptable accounting firm not employed by any of the parties to this
Agreement (the "Unaffiliated Firm"). The Unaffiliated Firm shall
resolve within thirty (30) days after said Unaffiliated Firm's
engagement by the parties the differences regarding the proposed
Closing Date Balance Sheet in accordance with accounting and valuation
principles generally accepted in the Federal Republic of Germany and
on a basis consistent with the Takeover Accounts and this Agreement.
The decision of such Unaffiliated Firm shall be final and binding
upon, and its fees, costs and expenses shall be shared equally by the
Buyer and the Seller. The Buyer and the Seller shall each bear the
fees, costs and expenses of its own accountants, if any. Upon
resolution of any such dispute, the determination of the Closing Date
Balance Sheet shall be deemed to be final.
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(c) If the Closing Date Balance Sheet as finally determined pursuant to
this Section 4. shows that the "net book value" of the Company (i.e.,
the book value of the assets acquired less the book value of
liabilities assumed) as at the Closing Date is greater than or less
than DM1,485,410.00, then the Aggregate Cash Closing Purchase Price
shall be increased or reduced, as applicable, in the aggregate, for
fifty (50%) percent of the change. Such amount shall, promptly, but in
no event later than five (5) Business Days after final determination
of the Closing Date Balance Sheet, be paid by the Seller to the Buyer
or returned by the Buyer to the Seller, as applicable.
V.
Representations and Warranties
In the execution of this Share Purchase and Transfer Agreement, the Buyer relies
on the accuracy of the representations and warranties made by Seller in the
agreement and hereinafter. Seller herewith expressly represents and warrants as
guaranteed qualities of the GmbH that on today's date and, if different, on and
as of the date of the Closing, the following representations and warranties are
correct:
1. (a) The information given in the Preamble hereto is complete and
accurate in all respects.
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(b) Persons and companies other than Seller and Buyer do not hold
directly or indirectly any share or other interest in the GmbH of
any nature whatsoever, nor do they have a right to any such interest
(including the right to purchase or otherwise acquire an interest in
the GmbH). The Share is not subject to any rights of third parties.
(c) Seller and his relatives (Angehorige) within the meaning of Section
15 of the German Tax Code (Abgabenordnung) - "Relatives" - do not
hold any interest whatsoever in any other business entity engaged in
a business in which GmbH is active except for publicly listed shares
quoted at a stock exchange.
(d) The execution and consummation of this Agreement and the
transactions and agreements contemplated hereby is valid and binding
on Seller and does not require the consent or authorization of any
third party or of any court or administrative authority.
2. Seller has permitted the Accounting Department and Buyer's Accountant on
behalf of Buyer to review and analyze the tax accounts of the GmbH since
December 31, 1993. These accounts submitted by Seller to the Accounting
Department have been prepared with the care of a conscientious businessman
in accordance with accounting and valuation principles generally accepted
in the Federal Republic of Germany and these principles have been applied
consistently and without change as in prior fiscal years of the GmbH,
respectively. All ascertainable risks, devaluations and losses have been
reflected by sufficient depreciation, adjustment in value and reserves. The
said material is complete
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and accurate and presents fairly and completely the financial condition of
the GmbH respectively at the respective dates and the results of the
operations of their business for the periods thereby covered. All other
information given to the Accounting Department was true and accurate and
was not incomplete in a way as to make any information given misleading.
3. Since December 31, 1996, there has not been in the GmbH
(a) any change in the business operations or the financial conditions or
the manner of conducting the business other than changes arising in
the ordinary course of business, none of which has had a material
adverse effect on the business operations or the financial condition
of the GmbH;
(b) any damage, including financial damage or loss (whether covered by
insurance or not) materially adversely affecting any material asset or
the business operations of the GmbH;
(c) the termination or a material change of any material contract of the
GmbH.
4. The GmbH has good, unrestricted and unencumbered title to, and possession
of, all the personal property reflected in the accounts, and such property
which has been acquired since then. All inventory is in good and saleable
condition. All property is in good working order and condition. The GmbH
has all necessary assets to conduct business in a manner similar to that
conducted in the past and as contemplated to be conducted.
5. There is no litigation, arbitration or administrative proceeding or
investigation pending or threatened against the GmbH nor are circumstances
known to exist
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which reasonably might be expected to result in such litigation,
arbitration, administrative proceedings or investigation, nor is the GmbH a
party to any other litigation or contentious proceeding.
6. The GmbH is holding such trademarks, patents and other industrial property
rights necessary for the conduct of the GmbH's business in the manner
currently conducted by it. There do not exist any rights of third parties,
and in particular no industrial property rights of third parties which any
of the GmbH infringes by its firm name or any part thereof or by any name
used by it or the conduct of its business or any other act within its
business. The Seller does not own any industrial rights, especially no
patent rights, which belong to the business of the GmbH or is related
thereto.
7. The GmbH had not significant problems in obtaining in a timely manner and
at reasonable costs any and all materials (raw, finished and otherwise)
used or to be used in the business of the GmbH, nor does the GmbH have any
reason to believe that it will have any significant problems in obtaining
such materials in future. The GmbH has not received written notice of
intent to terminate any material contracts or agreements for the purchase
of the products of the GmbH nor does the GmbH have knowledge of any
circumstances which are likely to result in a material decrease of GmbH's
forecasted annual sales for the fiscal year ending December 31, 1997.
8. The GmbH has
(a) duly filed all tax returns up to and including fiscal year 1996 and
other reports required under the applicable laws with tax and other
authorities,
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(b) made all current tax prepayments for all applicable taxes,
(c) withheld all taxes, social security charges and other charges to be
withheld and have paid them to the respective recipient.
9. Seller and his Relatives and companies and partnerships directly or
indirectly controlled by Seller and/or his Relatives do not have any
claims, other than from the existing employment contract of Xxxxx Xxxxxxx,
from the property lease agreement of Xxxxx Xxxxxxx, or other rights against
the GmbH or in any tangible or intangible asset which is used or destined
to be used in the business of the GmbH.
10. (a) The GmbH is not in default under any law or ordinance, or under any
order of any court or federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality
wherever located (other than as may be described elsewhere herein).
(b) The GmbH has operated from its inception, and will continue to operate
through the Closing Date, legally and in compliance with all
conditions and requirements of all applicable zoning laws, federal,
state and local statutes, ordinances, rules, regulations, permits,
policies, guidelines, orders, franchises, authorizations and consents,
and neither the GmbH nor the Seller have received notice of any
asserted past or present failure to comply with any law, ordinance,
regulation, permit, order or requirement. The Seller knows of no other
facts or circumstances which may result in any future civil,
administrative or criminal proceedings against the GmbH.
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(c) The GmbH has not transported, stored, treated or disposed, nor has it
allowed or arranged for any third person to transport, store, treat or
dispose hazardous waste to or at (1) any location other than a site
lawfully permitted to receive such waste for such purposes or (2) any
location designated for remedial action pursuant to the applicable
laws, as from time to time amended, or any similar federal or state
statute assigning responsibility for the cost of investigating or
remediating releases of contaminants into the environment; nor has the
GmbH performed, arranged for or allowed, by any method or procedure,
such transportation or disposal in contravention of state or federal
laws and regulations or in any other manner which gives rise to any
liability whatsoever; and the GmbH has not disposed of nor has it
allowed or arranged for third parties to dispose of hazardous waste
upon property owned or leased by it, except as permitted by law.
11. The GmbH's performances of services have been conducted in accordance with
standards of practice ordinarily exercised at the time and within the
locality where the services were performed, including, without limitation,
compliance with applicable laws, regulations and standards governing the
provision of services to the public.
12. The GmbH leases all of its land and buildings whereon it operates and
conducts its business and affairs from Seller's spouse, Xxxxx Xxxxxxx. This
lease contract is valid and binding on the parties thereto until June 30,
2003. Neither the GmbH nor Xxxxx Xxxxxxx has breached or is in default
under any material
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obligation contained in this lease contract. The execution and consummation
of this Agreement does not give to Xxxxx Xxxxxxx a right of termination or
the right to an amendment of such contract. Notwithstanding anything to the
contrary contained in the lease, Xxxxx Xxxxxxx hereby expressly agrees to
maintain this lease with GmbH for the remaining term of the current lease
and, thereafter at the option of GmbH, to renew it for another five (5)
year term on substantially the same terms as currently provided for. In
case of such a renewal Xxxxx Xxxxxxx shall be entitled to adjustment of the
rent equivalent to the inflation increase. The parties hereto agree to
amend the lease to provide for the foregoing. GmbH owns no real property.
VI.
Period until the Closing Date
1. Seller will give Buyer and its respective representatives access to the
GmbH's files including all its books and records.
2. Seller guarantees that until the Closing Date, the GmbH will operate its
business in the normal manner consistent with past practice and that,
without the prior written consent of Buyer the GmbH will not enter into any
contract or assume any liability other than contemplated herein or in the
ordinary course of business.
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3. Seller agrees not to make or to let any person or company or partnership
make any withdrawals from the GmbH for any purpose whatsoever. For this
purpose the term "withdrawals" includes the declaration or payment of a
dividend or interim dividend, any payment to Seller or Relatives under
lease, employment, advisory or similar contracts and the repayment of, or
the payment of interest for, any balances on capital, loan or other
accounts of Seller to the GmbH. Heiko and Xxxxx Xxxxxxx as well as Xxxxxxx
Xxxxxxx shall be entitled to withdraw any loan amounts prior to the Closing
Date, which GmbH received from them prior to the Closing Date.
VII.
Liability, Full Implementation
1. Any inspection, audit, investigation or review made by Buyer before the
execution of this Agreement, shall in no way affect the representations and
warranties of Seller contained herein or made in pursuance hereof.
2. The statute of limitations for any claims hereunder shall be eighteen (18)
months from the date of the Closing Date unless a longer period is provided
for the respective claim by the laws of the Federal Republic of Germany.
Notwithstanding the foregoing, the statute of limitations shall expire,
with respect to tax liabilities, six months after final assessment
following the tax audits for the respective periods, of all taxes of the
GmbH.
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3. With respect to the handling of tax matters and changes, if any, which may
result from a tax audit the following shall apply:
(a) Buyer will notify Seller promptly of any tax audit relating to the
period until the Closing Date. Seller is entitled to participate in
such tax audit and to comment thereon irrespective of whether the
respective tax audit concerns business taxes or personal taxes of
Seller.
(b) If as a result of such tax audit there should be an increase of the
taxes of the GmbH payable for the period up to the Closing Date, these
taxes shall be borne by Seller and Seller will, if applicable, hold
the GmbH harmless and indemnified from and against the respective tax
liabilities. Seller shall not be required to bear an increase of taxes
and to hold the GmbH harmless and indemnified to the extent such
increase of taxes results from timing differences and GmbH will
benefit from a reverse effect during the time after the Closing Date.
In any event the liability of the Seller shall be limited to 50%
(Seller's pro-rata-share in GmbH's capital) of the respective amounts.
(c) The result of the tax audit shall have no other effects on the present
Agreement except those described in Paragraph (b) above. In
particular, profit increases or profit decreases determined by the tax
office shall neither affect the Purchase Price nor the obligation of
indemnification in accordance with Paragraph (b). The representations
and warranties in accordance with Part V above shall be absolute and
effective, as drafted, and shall not be affected by any tax audit or
the results thereof.
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4. Buyer will grant Seller the right to inspect all business records of the
GmbH relating to the period prior and up to the Closing Date if this
inspection is requested for tax reasons or for reasons of defense against
claims or for other legitimate reasons connected with Seller's former
interests in the GmbH (but always in a manner of time so as to avoid any
business interruption or interference with GmbH or Buyer).
5. Seller undertakes to execute in due form and delivers at the request of
Buyer also at any time after today's date and without additional
remuneration any documents and to perform any acts which may be necessary
in order to comply fully with the purpose of this Agreement.
6. Buyer shall retain from the Purchase Price an amount of three hundred
thousand (DM300,000) Deutsche Xxxx during the above mentioned period of
eighteen (18) months to secure the faithful performance of the provisions
in this Paragraph VII and the indemnifications provided hereunder, such
amount (the "Escrow Amount") to be held in escrow by the acting Notary. The
Notary shall release the Escrow Amount so held or parts thereof only upon
mutual instruction to be signed by Seller and Buyer to the bank account
named in that instruction. Until the expiration of the above mentioned
eighteen (18) month period, the Notary shall deposit the Escrow Amount on a
month to month basis on time deposit. The interest on the Escrow Amount
shall become part of the escrow. After expiration of the above mentioned
eighteen (18) month period and provided that Buyer and Seller have not
instructed the Notary otherwise, the Notary shall extend the escrow for any
amount in dispute until the dispute
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between the parties has been finally and irrevocably resolved. The Notary
shall be entitled to deduct the notarial fees from the amount to be paid.
VIII.
NON-COMPETITION
1. Seller agrees that during his employment by the GmbH and throughout the
period ending on the third anniversary of the last day of the scheduled
term of his Employment Agreement with the GmbH dated September 1, 1997
(including any extensions thereof) (the "Non-Competitive Period"), Seller
shall not, directly or indirectly, as owner, partner, joint venturer,
stockholder, employee, broker, agent, principal, trustee, corporate
officer, director, licensor, or in any capacity whatsoever engage in,
become financially interested in, be employed by, render any consultation
or business advice with respect to, or have any connection with, any
business engaged in the research, development, testing, design,
manufacture, sale, lease, marketing, utilization or exploitation of any
products or services which are designed for the same purpose as, are
similar to, or are otherwise competitive with, products or services of the
GmbH, Buyer, Zygo or any of their respective subsidiaries or affiliates, in
any geographic area where, at the time of the termination or expiration of
his employment hereunder, the business of the GmbH, Buyer, Zygo or any of
their respective subsidiaries or affiliates was being conducted or was
proposed to be conducted in any manner whatsoever
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worldwide; provided, however, that Seller may own any securities of any
corporation which is engaged in such business and is publicly owned and
traded but in an amount not to exceed at any one time one percent (1%) of
any class of stock or securities of such corporation. In addition, Seller
shall not, directly or indirectly, during the Non-Competitive Period,
request or cause contracting parties, suppliers or customers with whom the
GmbH, Buyer, Zygo or any of their respective subsidiaries or affiliates has
a business relationship to cancel or terminate any such business
relationship with the GmbH, Buyer, Zygo or any of their respective
subsidiaries or affiliates or solicit, interfere with or entice from the
GmbH, Buyer, Zygo or any of their respective subsidiaries or affiliates any
employee (or former employee) of the GmbH, Buyer, Zygo or any of their
respective subsidiaries or affiliates.
2. If any portion of the restrictions set forth in this Section VIII should,
for any reason whatsoever, be declared invalid by a court of competent
jurisdiction, the validity or enforceability of the remainder of such
restrictions shall not thereby be adversely affected.
3. Seller acknowledges that the GmbH, Buyer and/or Zygo conducts business on a
world-wide basis, that its sales and marketing prospects are for continued
expansion into world markets and that, therefore, the territorial and time
limitations set forth in this Section VIII are reasonable and properly
required for the adequate protection of the business of the GmbH, Buyer,
Zygo and their respective subsidiaries. In the event any such territorial
or time limitation is deemed to be unreasonable by a court of competent
jurisdiction, Seller agrees to
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the reduction of the territorial or time limitation to the area or period
which such court deems reasonable.
4. The existence of any claim or cause of action by Seller against the GmbH,
Buyer, Zygo or any of their respective subsidiaries or affiliates shall not
constitute a defense to the enforcement by the GmbH, Buyer, Zygo or any
such subsidiary or affiliate of the foregoing restrictive covenants, but
such claim or cause of action shall be litigated separately.
IX.
General
1. The costs of GmbH's Accountant shall be borne by GmbH, and those of the
Accounting Department and Buyer's Accountant shall be borne by Buyer. The
notary's and court fees as well as transfer taxes and taxes on stock
exchange dealings, connected with this Agreement shall be borne by Buyer.
Apart therefrom, each party shall bear the costs of its advisors and
auditors.
2. Any changes and amendments to this Agreement shall only be valid if made
in writing or, if necessary, in notarized form. Declarations to be made
under this Agreement shall be made in writing unless expressly provided
otherwise.
3. Should any provision of this Agreement be or become invalid in whole or in
part, the validity of the other provisions shall not be affected thereby.
To the extent
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legally possible, the invalid provision shall be replaced by a provision
corresponding to the meaning and purpose of this Agreement.
4. This Agreement shall be governed by German law. The courts of Frankfurt/am
Main shall have exclusive jurisdiction for all disputes arising hereunder,
except relating to the agreement on the June 30, 1997 Takeover Accounts,
pursuant to Paragraph I(3) hereof.
5. The English version of this Agreement shall be binding.
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