ASSET PURCHASE AGREEMENT
dated as of
July 2, 1999,
by and among
ALIGN-RITE INTERNATIONAL, INC.,
a California corporation,
ALIGN-RITE, INC.,
a Florida corporation,
AND
XXXXXX CORPORATION,
a Delaware corporation
TABLE OF CONTENTS
ARTICLE I
RULES OF CONSTRUCTION AND DEFINITIONS....................................................................1
1.1 Rules of Construction...........................................................................1
1.2 Definitions.....................................................................................2
ARTICLE II
SALE OF PURCHASED ASSETS, ASSUMPTION OF ASSUMED CONTRACTS AND ASSUMED LIABILITIES AND RELATED
TRANSACTIONS.............................................................................................8
2.1 Purchase and Sale of Purchased Assets...........................................................8
(a) Purchased Assets.......................................................................8
(b) Excluded Assets........................................................................9
(c) Nonassignable Contracts................................................................9
2.2 Assumption of Liabilities......................................................................10
(a) Liabilities Not Assumed...............................................................10
(b) Assumed Liabilities...................................................................10
(c) Buyer's Obligation to Replace Photomasks..............................................10
2.3 Purchase Price.................................................................................10
(a) Purchase Price........................................................................10
(b) Allocation............................................................................11
(c) Payment...............................................................................11
ARTICLE III
CLOSING.................................................................................................11
3.1 Closing Date...................................................................................11
3.2 Items to be Delivered at the Closing By Seller.................................................11
3.3 Items to be Delivered at the Closing by Buyer..................................................11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER................................................................12
4.1 Organization and Related Matters...............................................................12
4.2 Financial Statements; Changes; Contingencies...................................................12
(a) Audited Financial Statements..........................................................12
(b) Unaudited Interim Financial Statements................................................13
(c) No Material Adverse Changes...........................................................13
4.3 Material Contracts.............................................................................13
4.4 Condition of Property..........................................................................14
4.5 Intangible Property............................................................................14
4.6 Authorization; No Conflicts....................................................................15
4.7 Legal Proceedings..............................................................................15
i
4.8 Permits........................................................................................16
4.9 Compliance with Law............................................................................16
4.10 Employee Benefits..............................................................................16
(a) Employee Benefit Plans, and Employment Agreements, and Similar Arrangements...........16
(b) Qualified Plans.......................................................................17
(c) Title IV Plans........................................................................17
(d) Union Contracts.......................................................................18
(e) Health Plans..........................................................................18
(f) Fines and Penalties...................................................................18
4.11 No Brokers or Finders..........................................................................18
4.12 Accuracy of Information........................................................................18
4.13 Inventories....................................................................................18
4.14 Customers and Suppliers........................................................................18
4.15 Environmental Compliance.......................................................................19
(a) Environmental Reports.................................................................19
(b) Compliance with Environmental Laws: Permits...........................................19
(c) Environmental Conditions: Action by Governmental Agency...............................19
(d) Treatment, Storage or Disposal Sites..................................................19
4.16 Powers of Attorney.............................................................................20
4.17 Year 2000......................................................................................20
4.18 Labor and Employment...........................................................................20
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER.................................................................21
5.1 Organization and Related Matters...............................................................21
5.2 Authorization..................................................................................21
5.3 Legal Proceedings..............................................................................21
5.4 No Conflicts...................................................................................22
5.5 No Brokers or Finders..........................................................................22
5.6 Governmental Authorizations and Consents.......................................................22
5.7 Litigation.....................................................................................22
5.8 Access.........................................................................................22
5.9 Employee Records...............................................................................23
5.10 Financial Capacity.............................................................................23
ARTICLE VI
COVENANTS AND REPRESENTATIONS AND WARRANTIES WITH RESPECT TO CONDUCT OF SELLER PRIOR TO CLOSING.........23
6.1 Access.........................................................................................23
6.2 Material Adverse Changes.......................................................................24
6.3 Conduct of Photomask Business..................................................................24
6.4 Notification of Certain Matters................................................................25
6.5 Permits and Approvals; Third Party Consents....................................................25
6.6 Preservation of Photomask Business Prior to Closing Date.......................................25
ii
6.7 Certain Filings................................................................................26
ARTICLE VII
ADDITIONAL CONTINUING COVENANTS.........................................................................26
7.1 Noncompetition.................................................................................26
(a) Restrictions on Competitive Activities................................................26
(b) Exceptions............................................................................26
(c) Restrictions on Soliciting Employees by Seller........................................26
(d) Restrictions on soliciting Employees by Buyer.........................................27
(e) Special Remedies and Enforcement......................................................27
7.2 Nondisclosure of Proprietary Data..............................................................27
7.3 Maintenance of Books and Records...............................................................28
7.4 Employment Matters.............................................................................28
(a) Employees.............................................................................28
(b) Proration of Employee Benefits........................................................29
(c) Severance Obligations.................................................................29
(d) No Third Party Beneficiaries..........................................................30
7.5 Buyer's Rights in Intellectual Property........................................................30
(a) Assignment of Intellectual Property Rights............................................30
(b) Assignment of Software Licenses.......................................................30
(c) Transfer of Tangible Software and Technology..........................................30
7.6 Representations Regarding Software.............................................................30
7.7 Sales and Transfer Taxes; Other Fees...........................................................31
ARTICLE VIII
CONDITIONS OF PURCHASE..................................................................................31
8.1 General Conditions.............................................................................31
(a) No Orders: Legal Proceedings..........................................................31
(b) Approvals.............................................................................32
8.2 Conditions to Obligations of Buyer.............................................................32
(a) Representations and Warranties and Covenants of Seller................................32
(b) No Material Adverse Change............................................................32
(c) Opinions of Counsel...................................................................32
(d) Consents..............................................................................32
(e) Changes in Law........................................................................32
(f) Employees.............................................................................32
(g) Facility Lease Agreement..............................................................33
(h) Photomask Supply and Strategic Alliance Agreement.....................................33
(i) Seller Certificate....................................................................33
(j) Site Services Agreement...............................................................33
8.3 Conditions to Obligations of Seller............................................................33
(a) Representations and Warranties and Covenants of Buyer.................................33
(b) Opinion of Counsel....................................................................33
(c) Facility Lease Agreement..............................................................33
(d) Photomask Supply and Strategic Alliance Agreement.....................................33
iii
(e) Site Services Agreement...............................................................34
ARTICLE IX
TERMINATION OF OBLIGATIONS; SURVIVAL....................................................................34
9.1 Termination of Agreement.......................................................................34
(a) Mutual Consent........................................................................34
(b) Conditions to Buyer's Performance Not Met.............................................34
(c) Conditions to Seller's Performance Not Met............................................34
(d) Xxxx-Xxxxx-Xxxxxx.....................................................................34
(e) Material Breach.......................................................................34
9.2 Effect of Termination..........................................................................35
9.3 Survival of Representations and Warranties.....................................................35
ARTICLE X
INDEMNIFICATION.........................................................................................35
10.1 Obligations of Seller..........................................................................35
10.2 Obligations of Buyer...........................................................................36
(a) General...............................................................................36
(b) With Respect to Environmental Conditions..............................................36
10.3 Procedure and Other Matters....................................................................37
(a) Procedure.............................................................................37
(b) Other Matters.........................................................................37
(c) Cooperation in Defending Claims.......................................................38
10.4 Survival.......................................................................................38
10.5 Notice by Seller...............................................................................38
10.6 Exclusive Remedy...............................................................................38
10.7 No Offsets.....................................................................................39
ARTICLE XI
GENERAL.................................................................................................39
11.1 Amendments; Waivers............................................................................39
11.2 Schedules; Exhibits; Integration...............................................................39
11.3 Commercially Reasonable Efforts; Further Assurances............................................39
(a) Commitment to Commercially Reasonable Efforts.........................................39
(b) Limitation............................................................................39
11.4 Governing Law; Choice of Forum; Consent to Personal Jurisdiction...............................40
11.5 No Assignment..................................................................................40
11.6 Headings.......................................................................................40
11.7 Counterparts...................................................................................40
11.8 Publicity and Reports..........................................................................40
11.9 Confidentiality................................................................................41
11.10 Parties in Interest............................................................................41
11.11 Notices........................................................................................41
11.12 Expenses.......................................................................................42
iv
11.13 Remedies; Waiver...............................................................................43
11.14 Attorneys' Fees................................................................................43
11.15 Knowledge Convention...........................................................................43
11.16 Representation By Counsel and Other Advisors; Interpretation...................................43
11.17 Specific Performance...........................................................................44
11.18 Severability...................................................................................44
11.19 Dispute Resolution and Arbitration 44
v
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement is entered into as of the close of business
on July 2, 1999, by and among Align-Rite International, Inc., a California
corporation ("Parent"), Align-Rite, Inc., a Florida corporation ("Sub," and
together with Parent, "Buyer"), on the one hand, and Xxxxxx Corporation, a
Delaware corporation ("Seller"), acting through its Semiconductor Business Unit,
on the other.
RECITALS
WHEREAS, Seller is engaged in the photomask manufacturing business as a
portion of its primary business of designing, developing, manufacturing,
assembling, testing, selling and disposing of semiconductor devices.
WHEREAS, Seller desires to sell, and Buyer desires to purchase certain
assets used in connection with Seller's photomask manufacturing business
together with Buyer's assumption of certain Assumed Contracts (as defined
herein) and the Assumed Liabilities (as defined herein), on the terms and
conditions set forth in this Agreement.
AGREEMENT
In consideration of the premises and the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the
parties hereby agree as follows:
ARTICLE I
RULES OF CONSTRUCTION AND DEFINITIONS
1.1 Rules of Construction
For all purposes of this Agreement, except as otherwise expressly provided:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and shall include, as appropriate, the plural as
well as the singular,
(b) all accounting terms not otherwise defined herein have the
meanings assigned under generally accepted accounting principles in the
United States, as in effect from time to time as applied on a consistent
basis (i.e. GAAP),
(c) all references in this Agreement to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of the body of this Agreement,
(d) pronouns of either gender or neuter shall include, as appropriate,
the other pronoun forms, and
(e) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
1.2 Definitions
As used in this Agreement and the Exhibits and Schedules delivered pursuant
to this Agreement, the following definitions shall apply:
"Action" means any action, complaint, investigation, petition, suit or
other proceeding, whether civil or criminal, in law or in equity, or before any
arbitrator or Governmental Entity.
"Affiliate" means a Person that directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with,
a specified Person.
"Agreement" means this Asset Purchase Agreement by and between Buyer and
Seller as amended or supplemented together with all Exhibits and Schedules
attached hereto.
"Approval" means any approval, authorization, consent, qualification or
registration, or any waiver of any of the foregoing, required to be obtained
from, or any notice, statement or other communication required to be filed with
or delivered to, any Governmental Entity or any other Person.
"Assumed Contracts" has the meaning specified in Section 2.1(a)(v).
"Assumed Liabilities" has the meaning specified in Section 2.2(b).
"Business Technology" means Technology owned by Seller and in the
possession of the Photomask Business as of the Closing Date that is specific to
operation of the Photomask Business. Business Technology does not include
Seller's Product Mask Information.
"Buyer" means Align-Rite International, Inc. and any subsidiary corporation
through which Align-Rite International, Inc. will take possession of the
Purchased Assets.
"Buyer's Auditors" means PricewaterhouseCoopers LLP, independent public
accountants to Buyer.
"Buyer Parties" has the meaning specified in Section 10.1.
"Claimant" has the meaning specified in Section 11.19.
2
"Closing" means the consummation of the transactions contemplated by this
Agreement.
"Closing Date" means the date of the Closing.
"Code" means the Internal Revenue Code of 1986, as amended, and the related
regulations and published interpretations.
"Contract" means any agreement, arrangement, bond, commitment, franchise,
indemnity, indenture, instrument, lease, license or understanding, whether or
not in writing.
"Copyrights" means rights in any and all United States and foreign
copyright registrations and applications therefor and unregistered copyrights
owned by Seller.
"Dispute Notice" has the meaning specified in Section 11.19.
"Encumbrance" means any claim, charge, lease, covenant, easement,
encumbrance, security interest, lien, option, pledge, rights of others, or
restriction (whether on voting, sale, transfer, disposition or otherwise),
whether imposed by agreement, understanding, law, equity or otherwise, except
for any restrictions on transfer generally arising under any applicable federal
or state securities law and Permitted Encumbrances.
"Environmental Condition" means the presence in, on, under or about the
real property currently or formerly used, owned or operated in connection with
the operation of the Photomask Business or the assets of Seller used in the
Photomask Business of any Hazardous Substance which, if the presence of such
Hazardous Substance was known, would be reportable under any Environmental Law,
or which could reasonably be anticipated to require investigation or remediation
pursuant to any Environmental Law.
"Environmental Laws" means all applicable Laws pertaining to the safety of
employees or the environment including: (x) all requirements pertaining to
reporting, licensing, permitting, controlling, investigating or remediating
emissions, discharges, releases or threatened releases of Hazardous Substances,
chemical substances, pollutants, contaminants or toxic substances, materials or
wastes, whether solid, liquid or gaseous in nature, into the air, surface water,
groundwater or land, or relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Substances, chemical substances, pollutants, contaminants or toxic substances,
materials or wastes, whether solid, liquid or gaseous in nature; and (y) all
requirements pertaining to the protection of the safety of employees or the
public.
"Equity Securities" means any capital stock or other equity interest or any
securities convertible into or exchangeable for capital stock or any other
rights, warrants or options to acquire any of the foregoing securities.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the related regulations and published interpretations.
3
"ERISA Affiliate" means (i) any corporation which is a member of a group of
corporations of which Seller is a member and which is a controlled group of
corporations within the meaning of Section 414(b) of the Code; (ii) any trade or
business (whether or not incorporated) which is a member of a group of trades or
businesses under common control within the meaning of Section 414(c) of the Code
of which Seller is a member; and (iii) a member of an affiliated service group
within the meaning of Section 414(m) or (o) of the Code of which Seller, any
corporation described in clause (i) above or any trade or business described in
clause (ii) above are members.
"Excluded Assets" has the meaning specified in Section 2.1(b).
"Facility Lease Agreement" has the meaning specified in Section 8.2.
"GAAP" means generally accepted accounting principles in the United States,
as in effect from time to time, as applied on a consistent basis.
"Goodwill" means the expectation of patronage from customers of the
Photomask Business and the consumer identification and favorable consideration
shown by customers of the Photomask Business to the goods or services known to
emanate from the Photomask Business.
"Governmental Entity" means any government or any agency, bureau, board,
commission, court, department, official, political subdivision, tribunal or
other instrumentality of any government, whether federal, state or local,
domestic or foreign.
"Xxxxxx Patents" means and refers to all Patents owned by Xxxxxx as of the
Closing Date and covering activities performed in the course of business by the
Photomask Business prior to the Closing Date.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the related regulations and published
interpretations.
"Hazardous Substance" means (but shall not be limited to) substances that
are defined or listed in, or otherwise classified pursuant to, any applicable
Laws as "hazardous substances," "hazardous materials," "hazardous wastes" or
"toxic substances," or any other formulation intended to define, list or
classify substances by reason of deleterious properties such as ignitibility,
corrosivity, reactivity, radioactivity, carcinogenicity, reproductive toxicity
or "EP toxicity," and petroleum and drilling fluids, produced waters and other
wastes associated with the exploration, development, or production of crude oil,
natural gas or geothermal energy.
"Indemnifiable Claim" means any Loss for or against which any Person is
entitled to indemnification under this Agreement.
"Indemnified Party" means the party entitled to indemnity hereunder.
"Indemnifying Party" means the party obligated to provide indemnification
hereunder.
4
"Intangible Property" means any permits or other property other than
personal property, real property or Intellectual Property used in or pertaining
to the Photomask Business.
"Intellectual Property" means intellectual property covered by Copyrights,
Xxxxxx Patents or Trade Secret Rights as defined herein.
"Intellectual Property Rights" means rights in Copyrights and Xxxxxx
Patents and Trade Secret Rights which (a) are owned by the Seller, (b) exist
under laws respecting Patents, Copyrights or Trade secrets, but not trademarks
and (c) cover the use of Business Technology.
"Inventory" has the meaning specified in Section 2.1(a)(iv).
"IRS" means the United States Internal Revenue Service or any successor
entity.
"Law" means any constitutional provision, statute or other law, rule,
regulation, or interpretation of any Governmental Entity and any Order, whether
federal, state or local, domestic or foreign.
"Loss" means any action, cost, damage, disbursement, expense, liability,
loss, deficiency, diminution in value, obligation, penalty or settlement of any
kind or nature, whether foreseeable or unforeseeable, including but not limited
to, interest or other carrying costs, penalties, and reasonable legal,
accounting and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid in
settlement, that is imposed on or otherwise incurred or suffered by the
specified Person.
"Material Adverse Change" or "Material Adverse Effect" means, when used in
connection with Seller, the Photomask Business, the Purchased Assets, the
Assumed Contracts and the Assumed Liabilities, any change, event or effect (or
any development that insofar as can reasonably be foreseen, is likely to result
in any change or effect) that, individually or in the aggregate, is materially
adverse to the business, assets, financial condition or results of operations of
the Photomask Business taken as a whole.
"Material Contract" means any Contract material to the Photomask Business
as of or after the effective date of this Agreement as described in Schedule
4.3.
"Order" means any decree, injunction, judgment, order, ruling, assessment
or writ.
"Parent" means Align-Rite International, Inc.
"Patents" means issued patents, including United States and foreign patents
and applications therefor, xxxxx patents, patents of importation, and divisions,
reissues, continuations, continuations-in-part, renewals and extensions of any
of the foregoing; certificates of addition and utility models and utility model
applications; but does not include License Agreements.
"PBGC" means the United States Pension Benefit Guaranty Corporation or any
successor thereto.
5
"Permit" means any license, permit, franchise, certificate of authority, or
order, or any waiver of the foregoing, required to be issued by any Governmental
Entity.
"Permitted Encumbrances" means (i) tax liens for taxes not yet payable, or
for taxes presently payable, but being contested by Seller in good faith and in
accordance with the procedures established in the jurisdiction imposing the tax,
(ii) liens relating to obligations to be paid prior to or concurrent with the
Closing, (iii) liens of carriers, warehousemen, mechanics, laborers and
materialmen and other similar liens incurred in the ordinary course of business
for sums not yet due or being contested in good faith, if such reserve or
appropriate provision, if any, as shall be required by GAAP shall have been made
therefor, (iv) real property liens of record, and (v) liens on assets other than
Purchased Assets.
"Person" means an association, a corporation, an individual, a partnership,
a limited liability company, a trust or any other entity or organization,
including a Governmental Entity.
"Photomask Business" means the manufacture and sale of photomask products
and related photomask services by Seller regardless of the name under which any
such activity is conducted, and shall be deemed to include the Purchased Assets,
the rights and assets transferred pursuant to Section 7.5 hereof, revenues and
income, Assumed Liabilities, Assumed Contracts, exclusive of cash, cash
equivalents, accounts receivable, accounts payable and any elements of the
Retained Business or Excluded Assets.
"Photomask Supply and Strategic Alliance Agreement" has the meaning set
forth in Section 8.2.
"Prepaid Expenses" has the meaning specified in Section 2.1(a)(vi).
"Purchase Price" has the meaning set forth in Section 2.3(a).
"Purchased Assets" has the meaning set forth in Section 2.1(a).
"Real Property" means the real property located within the complex of
buildings known as the Semiconductor Sector located at 0000 Xxxx Xxx Xxxx, XX,
Xxxx Xxx, Xxxxxxx 00000 and known as Building 60 and a portion of Building 56
used in the Photomask Business, appurtenances thereto, rights in connection
therewith, and the leasehold estates created as part of the transaction
contemplated by this Agreement.
"Representatives" shall be deemed to include the independent accountants
and counsel of the applicable party hereto.
"Respondent" has the meaning set forth in Section 11.19.
"Retained Business" means the business of the Semiconductor Business Unit
of Xxxxxx Corporation except for the Photomask Business which is the subject of
this Agreement.
"SEC" means the United States Securities and Exchange Commission or any
successor entity.
6
"Seller" has the meaning specified in the preamble to this Agreement.
"Seller's Product Mask Information" means the product design data of Seller
for products designed or manufactured by or on behalf of Seller's Semiconductor
Business Unit from which photomasks are made, whether such data is in electronic
pattern media or Photomask tooling, and not otherwise used in the operation of
the Photomask Business.
"Site Services Agreement" has the meaning set forth in Section 8.2.
"Software" means the manifestation of computer programs and databases in
tangible or physical form, including, but not limited to magnetic media,
firmware, and documentation in the form of source code, object code or
microcode; Software includes, but is not limited to management information
systems, computer aided design and/or engineering programs, computer aided
manufacturing programs, CADBUS programs, machinery control programs, and
personal computer programs, in each case that is owned by or licensed to Seller
and relevant to the Photomask Business. Software does not include any Technology
or any Intangible Property Rights.
"Software Licenses" means agreements concerning Software (other than
Systems Software) used in or on behalf of the Photomask Business including the
agreements identified on Schedule 7.6.
"Software Type 1" means Software for which the Seller is sole owner of all
right title and interest and which is specific to the Photomask Business.
Software Type 1 does not include Systems Software.
"Software Type 2" means Software owned in whole or in part by the Seller
and licensable by Seller on a non-exclusive basis to Buyer, and which is not
specific to, but is used in, the operations of the Photomask Business. Software
Type 2 does not include Systems Software.
"Systems Software" means software not specific to the Photomask Business
and not specific to an individual personal computer.
"Sub" means the subsidiary of Align-Rite International, Inc. through which
Align-Rite International, Inc. will take possession of the Purchased Assets.
"Tax" means any foreign, federal, state, county or local income, sales and
use, excise, franchise, real and personal property, transfer, gross receipt,
capital stock, production, business and occupation, disability, employment,
payroll, severance or withholding tax or charge imposed by any Governmental
Entity, any interest and penalties (civil or criminal) related thereto or to the
nonpayment thereof.
"Tax Return" means a report, return or other information required to be
supplied to or filed with a Governmental Entity with respect to Taxes including,
where permitted or required, combined or consolidated returns for any group of
entities that includes any subsidiary.
7
"Technology" means the manifestation in tangible or physical form of all
types of technical information and data including, but not limited to, know-how;
product definitions and designs; research and development, engineering,
manufacturing, assembly, process, test, quality control, procurement, and
service specifications, procedures, standards, and reports; maskworks;
blueprints; drawings; materials specifications, procedures, standards, and
lists; catalogs; technical information and data relating to marketing and sales
activity; and formulae, in each case that is owned by or licensed to Seller and
relevant to routine operation of the Photomask Business. Technology does not
include any Software or any Intangible Property Rights.
"Termination Date" means the specific date first set forth in Section 9.1.
"Trade Secret Rights" means any and all rights in trade secrets owned by
Seller and comprising Technology used in the operation of the Photomask
Business.
"Y2K Problem" has the meaning set forth in Section 4.17.
ARTICLE II
SALE OF PURCHASED ASSETS,
ASSUMPTION OF ASSUMED CONTRACTS AND ASSUMED
LIABILITIES AND RELATED TRANSACTIONS
2.1 Purchase and Sale of Purchased Assets
(a) Purchased Assets. Upon the terms and subject to the conditions set
forth in this Agreement, on the Closing Date, Seller shall sell, convey, assign,
transfer and deliver to Sub, and Sub shall purchase, acquire and accept from
Seller, Seller's right, title and interest in and to the assets specifically
described in this Section 2.1(a) (the "Purchased Assets").
(i) All machinery, tools, supplies, apparatus, furniture and fixtures,
supplies, and computer hardware located at and used solely by the Photomask
Business and other equipment of every type as identified on Schedule
2.1(a)(i) hereto;
(ii) The cleanroom located within Building 60, including fixtures and
improvements attached thereto as set forth in Schedule 2.1(a)(ii);
(iii) All other fixtures and improvements attached to the Real
Property used primarily in connection with the Photomask Business as
specified in Schedule 2.1(a)(iii);
(iv) All inventory of usable goods, including all merchandise,
photomasks, raw materials, work in progress, finished products and other
tangible personal property held for sale or used in connection with the
Photomask Business as of the date hereof (the "Inventory"), together with
any additions thereto and subject to any reductions therefrom received or
incurred by Seller in operating the Photomask Business in the ordinary
course and in compliance with Section 6.3 hereof after the date hereof and
through the Closing Date all as set forth in Schedule 2.1(a)(iv);
8
(v) All of Seller's rights and interests arising under or in
connection with the Contracts to which Seller is a party specified on
Schedule 2.1(a)(v) and which Buyer assumes (the "Assumed Contracts")
including but not limited to obligations to complete work on order from
customers; provided, however, that except as otherwise specified herein,
Buyer shall not assume any of the obligations or liabilities of the Assumed
Contracts arising prior to the Closing or based on actions or inactions of
Seller prior to the Closing;
(vi) Prepaid expenses and deposits as of the date hereof (the "Prepaid
Expenses") as set forth in Schedule 2.l(a)(vi), together with any additions
thereto and subject to any reductions therefrom made or accrued by Seller
in operating the Photomask Business in the ordinary course and in
compliance with Section 6.3 hereof after the date hereof and through the
Closing Date;
(vii) Sales data and information, customer lists, information relating
to customers, suppliers' names, catalogs, sales literature, promotional
materials, advertising matter and all rights thereto relating specifically
to the Photomask Business;
(viii) Intangible Property; the Goodwill associated with the Photomask
Business; all of Seller's books, records, files, documents, pay history
papers and agreements (including, but not limited to, those contained in
computerized storage media) used solely in the Photomask Business and
related to its employees, except for those employee records consisting of
field folders, medical records and former employee actions brought against
the Seller, which actions have been settled or adjudicated and the order of
the court performed; all transferable Permits used in the Photomask
Business; unemployment compensation, workers' compensation and other
credits, reserves or deposits with applicable Governmental Entities
relating to Seller's employees of the Photomask Business who become
Employees of Buyer.
(b) Excluded Assets. No rights, properties or assets of Seller shall be
included in the Purchased Assets except to the extent specified in Section
2.1(a). As an example, no cash, receivables or Contracts not expressly assumed
hereunder by the Buyer are included as Purchased Assets. Buyer shall not acquire
under the terms of this Agreement any title to or interest in the name "Xxxxxx"
or "Xxxxxx Semiconductor" or Seller's monograms, logos, trademarks, or any
variations or combinations thereof or Seller's Product Mask Information. Buyer,
however, shall be entitled to use all of Seller's Product Mask Information
solely for the purpose of making Photomasks for Seller. Buyer shall use
reasonable care in storing and maintaining Seller's Product Mask Information.
Seller acknowledges that Seller's Product Mask Information is Seller's property
and that Buyer shall have no liability for damages or loss related thereto;
provided, however, that Buyer shall be liable for damages arising from Buyer's
negligence or willful misconduct.
(c) Nonassignable Contracts. Notwithstanding other terms set forth in this
Section 2.1, to the extent that any Software contracts to be assigned pursuant
to this Agreement are not capable of being assigned without the consent,
approval or waiver of a third person or entity, nothing in this Agreement will
constitute an assignment or require the assignment thereof.
9
2.2 Assumption of Liabilities
(a) Liabilities Not Assumed. Except as expressly provided in Section
2.2(b), Buyer shall not assume, shall not take subject to and shall not be
liable for, any liabilities or obligations of any kind or nature, whether
absolute, contingent, accrued, known or unknown, of Seller or any Affiliate of
Seller, including, but not limited to the following:
(i) The liabilities set forth in the financial statements identified
in Sections 4.2(a) and (b) and the contracts set forth on Schedule 4.3;
(ii) Any liabilities or obligations incurred arising from or out of or
in connection with Seller's operations, the condition of its assets or
places of business, its ownership of the Purchased Assets, or the issuance,
sale, repayment or repurchase of any of its securities;
(iii) Any liabilities or obligations incurred, arising from or out of,
in connection with or as a result of claims made by or against Seller
whether before or after the Closing Date that arise out of events prior to
the Closing Date; and
(iv) Any product liability claims for Photomasks manufactured and
delivered to customers on or prior to the Closing Date, except, as provided
in Section 2.2(b).
(b) Assumed Liabilities. Notwithstanding Section 2.2(a), on the Closing
Date, Buyer shall assume only the obligations of Seller under the Assumed
Contracts to the extent such obligations are to be performed on and after the
Closing Date (but excluding any liability or obligation to a third party arising
from a breach of such Assumed Contract before the Closing or based on actions or
inactions of Seller prior to the Closing or arising out of Seller's failure to
obtain a required Consent to the assignment of an Assumed Contract to Buyer),
obligations for employee wages, salaries and benefits as provided in Section
7.4, and Buyer's responsibility to replace Photomasks as set forth in Section
2.2(c) below (the "Assumed Liabilities").
(c) Buyer's Obligation to Replace Photomasks. Buyer shall replace Photomask
products manufactured by Xxxxxx after January 1, 1999, and through the Closing
Date so long as such Photomask products are returned for non-compliance with
applicable customer specification within one hundred eighty (180) days of the
date on which such products were shipped to such customers by Seller. In no
event shall Buyer's liability under this Section 2.2(c) exceed in the aggregate
$25,000, which amount shall be calculated by reference to the original invoice
for such products. Seller acknowledges and agrees that Buyer's liability
hereunder shall be limited to the replacement of such products described above
and that in no event shall Buyer be liable for any other damages arising from
such products, including, without limitation, damages arising from the use of
such products.
2.3 Purchase Price.
(a) Purchase Price. The aggregate purchase price to be paid to Seller by
Buyer for the Purchased Assets shall be Thirteen Million Two Hundred Fifty
Thousand Dollars ($13,250,000) (the "Purchase Price").
10
(b) Allocation. Buyer shall provide Seller with a draft of IRS Form 8594
sixty (60) days prior to the date on which such filing is due with the IRS.
(c) Payment. At the Closing, at 12:00 p.m. Eastern Daylight Time on July 2,
1999, Buyer shall pay the Purchase Price to Seller by wire transfer of
immediately available funds to Chase Manhattan Bank - New York, ABA Routing
#:000000000, Account Name: Xxxxxx Corporation Master Account, Account Number:
144046155.
ARTICLE III
CLOSING
3.1 Closing Date
Upon the terms and subject to the conditions set forth in this Agreement,
the signing and Closing of the transaction shall take place simultaneously at
the offices of Xxxxxx Corporation, 0000 XXXX Xxxxxxxxx, Xxxxxxxxx, Xxxxxxx
00000, at 12:00 p.m. Eastern Daylight Time, on July 2, 1999.
3.2 Items to be Delivered at the Closing By Seller
At the Closing, Seller shall deliver or cause to be delivered to Buyer:
(a) A Xxxx of Sale and Assignment, in substantially the form of Exhibit A;
(b) All documentation required to exempt Seller from the withholding
requirement of Section 1445 of the Code, consisting of (i) an affidavit from
Seller to Buyer stating under penalty of perjury that Seller is not a foreign
person and providing Seller's U.S. taxpayer identification numbers, or (ii) a
sworn affidavit of Seller that it is not "U.S. real property holding
corporations," as defined in Section 897 of the Code or (iii) a "qualifying
statement" obtained by Seller from the Internal Revenue Service;
(c) The opinions, certificates, consents and other documents referred to
herein, including in Section 8.2, as then deliverable by Seller.
(d) The key to all locks located on or in the Purchased Assets (and any and
all cards, devices or things necessary to access any Purchased Assets).
(e) The Facility Lease Agreement in substantially the form of Exhibit B.
(f) The Photomask Supply and Strategic Alliance Agreement in substantially
the form of Exhibit C.
(g) The Site Services Agreement in substantially the form of Exhibit D.
3.3 Items to be Delivered at the Closing by Buyer
At the Closing, Buyer shall deliver to Seller:
11
(a) The Purchase Price;
(b) An Assumption Agreement, in substantially the form of Exhibit E;
(c) The opinions, certificates, consents and other documents referred to
herein, including in Section 8.3, as then deliverable by Buyer;
(d) The Facility Lease Agreement in substantially the form of Exhibit B;
(e) The Photomask Supply and Strategic Alliance Agreement in substantially
the form of Exhibit C; and
(f) The Site Services Agreement in substantially the form of Exhibit D.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
As of the date hereof and as of the Closing, Seller represents and warrants
to Buyer, and agrees with Buyer, as follows:
4.1 Organization and Related Matters
Seller is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. Seller has all requisite
corporate power and authority to execute, deliver and perform this Agreement,
the Facility Lease Agreement, the Photomask Supply and Strategic Alliance
Agreement, the Site Services Agreement and any other related agreements to which
it is a party Seller is required to be and is qualified to do business as a
foreign corporation in the State of Florida. Seller has all requisite corporate
power and authority to own the Purchased Assets and to carry on the Photomask
Business as now conducted and is duly qualified or licensed to do business as
foreign corporations in good standing in all jurisdictions in which the
character or the location of the Purchased Assets owned or leased by it or the
nature of the Photomask Business requires licensing or qualification. True,
correct and complete copies of the charter documents of Seller as in effect on
the date hereof have been delivered to Buyer.
4.2 Financial Statements; Changes; Contingencies
(a) Audited Financial Statements. Seller has delivered to Buyer
consolidated and consolidating balance sheets for the Seller at June 27, 1997,
and July 2, 1998. All such financial statements of Seller have been examined by
the auditors whose reports thereon are included with such financial statements
and which have been prepared in conformity with GAAP. Such statements of
operations and cash flow present fairly in all material respects the results of
operations and cash flows of Seller for the respective periods covered, and the
balance sheets present fairly in all material respects the financial condition
of Seller as of their respective dates. Since April 2, 1999, there has been no
change in any of the significant accounting policies, practices or procedures of
Seller.
12
(b) Unaudited Interim Financial Statements. Seller has delivered to Buyer
balance sheets and income statements for the Photomask Business at April 30,
1999, and May 28, 1999 and for the ten month and eleven month periods ended
April 30, 1999 and May 28, 1999, respectively. The internal interim financial
statements present fairly the results of operations of the Photomask Business
for the respective periods covered. All such interim financial statements
reflect all adjustments (which consist only of normal recurring adjustments not
material in amount and include but are not limited to estimated provisions for
year-end adjustments) necessary for a fair presentation.
(c) No Material Adverse Changes. Except as disclosed on Schedule 4.2(c),
since April 26, 1999, whether or not in the ordinary course of business, there
has not been, occurred or arisen:
(i) any change in or event affecting the Photomask Business, the
Purchased Assets, the Assumed Liabilities, that has had or may reasonably
be expected to have a Material Adverse Effect on the Photomask Business,
the Purchased Assets, or the Assumed Liabilities, or
(ii) any agreement, condition, action or omission which would be
proscribed by (or require consent under) Section 6.3 had it existed,
occurred or arisen after the date of this Agreement, or
(iii) any strike or other labor dispute, or
(iv) any casualty, loss, damage or destruction (whether or not covered
by insurance) of any of the Purchased Assets that is material.
4.3 Material Contracts
Schedule 4.3 lists each Contract to which the Photomask Business, or Seller
(relating to the Photomask Business) is a party or to which Seller or any of its
respective properties on the date hereof is subject or by which any thereof is
bound that is deemed a Material Contract under this Agreement. Unless otherwise
so noted in Schedule 4.3, each such Contract was entered into in the ordinary
course of business. Each such Contract that (a) after April 2, 1999 obligates
Seller (with respect to the Photomask Business) to pay an amount of $25,000 or
more, (b) has an unexpired term as of April 2, 1999 in excess of six (6) months,
(c) contains a covenant not to compete or otherwise significantly restricts
business activities, (d) provides for the extension of credit other than
consistent with normal credit terms, (e) limits the ability of Seller to conduct
its business, including as to manner or place, (f) provides for a guaranty or
indemnity by Seller, (g) grants a power of attorney, agency or similar authority
to another person or entity, (h) contains a right of first refusal, (i) contains
a right or obligation of or to any Affiliate, officer or director or any
Associate, of Seller, (j) represents a Contract upon which the Photomask
Business is substantially dependent or a Contract which is material to the
Photomask Business, (k) requires Seller to buy or sell goods or services with
respect to which there will be material losses or will be costs and expenses
materially in excess of expected receipts (other than as provided for or
otherwise reserved against on the most recent of the balance sheets referred to
in Section 4.2) or (1) was not made in the ordinary course of business, shall be
13
deemed to be a Material Contract. True, correct and complete copies of the
Material Contracts appearing on Schedule 4.3, including all amendments and
supplements, have been delivered to Buyer. Each Material Contract is valid and
subsisting; Seller has duly performed all its respective obligations thereunder
to the extent that such obligations to perform have accrued; and no breach or
default, or to Seller's knowledge alleged breach or default, or event which
would (with the passage of time, notice or both) constitute a breach or default
thereunder by Seller (or, to the best knowledge of Seller, any other party or
obligor with respect thereto), has occurred or as a result of this Agreement or
its performance will occur. Except as set forth in Schedule 4.3, consummation of
the transactions contemplated by this Agreement shall not (and shall not give
any Person a right to) terminate or modify any rights of, or accelerate or
augment any obligation, of Seller with respect to the Material Contracts.
4.4 Condition of Property
(a) All Purchased Assets used in connection with the Photomask
Business are owned by Seller, except as indicated on Schedule 4.4(a).
Seller has good and marketable title to the Purchased Assets, free and
clear of any Encumbrances, except for Permitted Encumbrances. Seller has
all rights, power and authority to sell, convey, assign, transfer and
deliver the Purchased Assets to Buyer in accordance with the terms of this
Agreement. At the Closing, Seller shall deliver the Purchased Assets to
Buyer, free and clear of any Encumbrances, except for Permitted
Encumbrances and except for encumbrances created by Buyer. The Purchased
Assets are in a good state of maintenance and repair, have been regularly
and appropriately maintained, repaired and replaced, and are presently
being used in their existing condition to conduct the Photomask Business.
(b) Except as set forth on Schedule 4.4(b) all water, sewer, gas,
electric, telephone, and drainage facilities and all other utilities
required by Law for the present use and operation of the Real Property in
which Buyer will obtain a leasehold interest under the Facility Lease
Agreement are installed across public property or valid easements to the
boundary lines of such Real Property, and are connected pursuant to
existing Permits, and such facilities are the existing connections
presently servicing the Real Property and are in good operating condition,
normal wear and tear excepted. Seller holds good title to the Real
Property, has not leased or otherwise encumbered, except for Permitted
Encumbrances, the Real Property, and shall deliver possession of the Real
Property to Buyer at the Closing. The Real Property may be used for the
operation of the Photomask Business.
4.5 Intangible Property
Schedule 4.5 lists all items of Intangible Property in which Seller, as
relates to the Photomask Business other than the Excluded Assets, and the
Photomask Business has an interest and the nature of such interest. Such assets
include all Permits or other rights with respect to any of the foregoing. Seller
has complete rights to and ownership of all Intangible Property required or
desirable for use in connection with the Photomask Business. Seller does not use
any Intangible Property by consent of any other Person nor is required to and
makes any payments to others with respect thereto. The Intangible Property of
Seller is fully assignable free and clear of any Encumbrances, other than
Permitted Encumbrances. Seller has in all material respects performed all
obligations required to be performed by it, and is not in default in any
material
14
respect, under any Contract relating to any of the foregoing. Seller has not
received any notice to the effect (or is otherwise aware) that the Intangible
Property or any use by Seller of any such property conflicts with or infringes
(or allegedly conflicts with or infringes) the rights of any Person.
4.6 Authorization; No Conflicts
The execution, delivery and performance of this Agreement, the Facility
Lease, Photomask Supply and Strategic Alliance Agreement and any other related
agreements by Seller has been duly and validly authorized by the Board of
Directors of Seller and by all other necessary corporate action on the part of
Seller. This Agreement has been and the Facility Lease Agreement, Photomask
Supply and Strategic Alliance Agreement and any related agreements to which
Seller is a party shall, prior to or simultaneously with the Closing, be duly
executed and delivered by Seller and constitute the legally valid and binding
obligations of Seller, enforceable against Seller in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws and equitable
principles relating to or limiting creditors rights generally. The execution,
delivery and performance of this Agreement, the Facility Lease Agreement, the
Photomask Supply and Strategic Alliance Agreement and the Strategic Alliance
Agreement by Seller and the execution, delivery and performance of any related
agreements or contemplated transactions by Seller shall not violate, or
constitute a breach or default (whether upon lapse of time and/or the occurrence
of any act or event or otherwise) under, the charter documents or by-laws of
Seller or any Material Contract of Seller, result in the imposition of any
Encumbrance against any of the Purchased Assets, or violate any Law. Schedule
4.6 lists all Permits, Approvals and consents required to be obtained by Seller
to consummate the transactions contemplated by this Agreement. Except for
matters identified in Schedule 4.6 as requiring that certain actions be taken by
or with respect to a third party or Governmental Entity, the execution and
delivery of this Agreement by Seller and the performance of this Agreement and
any related or contemplated transactions by Seller will not require filing or
registration with, or the issuance of any Permit by, any other third party or
Governmental Entity.
4.7 Legal Proceedings
There is no Order or Action pending, or, to the knowledge of Seller,
threatened, against or affecting Seller or any of their respective properties or
assets that individually or when aggregated with one or more other Orders or
Actions has or if determined adversely might reasonably be expected to have a
Material Adverse Effect on the Photomask Business, or the Purchased Assets (or
the use, operation or value thereof), the Assumed Liabilities, Seller's ability
to perform this Agreement, or any aspect of the transactions contemplated by
this Agreement. Schedule 4.7 lists each Order and each Action that involves a
claim or potential claim of aggregate liability in excess of $10,000 against, or
that enjoins or seeks to enjoin, any activity by Seller with respect to the
Photomask Business other than any Order or Action concerning Environmental
Conditions disclosed in Schedule 4.15.
15
4.8 Permits
Seller holds all Permits that to Seller's knowledge are required by any
Governmental Entity to permit it to conduct the Photomask Business as now
conducted and operate the Purchased Assets as well as all other assets material
to the Photomask Business, and all such Permits are valid and in full force and
effect, except where the failure to be in compliance would not reasonably be
expected to result in a Material Adverse Effect on the Photomask Business, and
where in effect, shall remain in full force and effect for the benefit of Buyer
upon consummation of the transactions contemplated by this Agreement, except for
those Permits identified on Schedule 4.8 as not transferable to Buyer. To
Seller's Knowledge no suspension, cancellation or termination of any of such
Permits is threatened or imminent.
4.9 Compliance with Law
(a) Seller has conducted the Photomask Business in accordance with
applicable Laws, and the forms, procedures and practices of Seller are in
material compliance with all such Laws, to the extent applicable.
(b) The use and operation of the Purchased Assets are in compliance with
all applicable Laws, building codes, environmental, zoning, subdivision, and
land use laws, and other local, state and federal laws and regulations, and
there are no material violations of any such Laws.
4.10 Employee Benefits
(a) Employee Benefit Plans, and Employment Agreements, and Similar
Arrangements.
(i) Schedule 4.10(a) lists (by entity subject thereto or bound
thereby) all employee benefit plans, employment or severance agreements and
other similar arrangements to which Seller (only insofar as applicable to
the employees of Seller dedicated to the Photomask Business) is or has been
bound for the last five (5) years, legally or otherwise, including, without
limitation, (a) any profit-sharing, deferred compensation, bonus, stock
option, stock purchase, pension, retainer, consulting, retirement,
severance, welfare or incentive plan, agreement or arrangement, (b) any
plan, agreement or arrangement providing for "fringe benefits" or
perquisites to employees, or agents, including but not limited to benefits
relating to company automobiles, clubs, vacation, child care, parenting,
sabbatical, sick leave, medical, dental, hospitalization, life insurance
and other types of insurance, (c) any employment agreement not terminable
on thirty (30) days (or less) written notice, or (d) any other "employee
benefit plan" (within the meaning of Section 3(3) of ERISA).
(ii) Seller has made available to Buyer true and complete copies of
all documents and summary plan descriptions with respect to such plans,
agreements and arrangements, or summary descriptions of any such plans,
agreements or arrangements not otherwise in writing.
16
(iii) There are no negotiations, demands or proposals that are pending
or have been made which concern matters now covered, or that would be
covered, by plans, agreements or arrangements of the type described in this
section.
(iv) Seller is in compliance in all material respects with the
applicable provisions of ERISA (as amended through the date of this
Agreement), the regulations and published authorities thereunder, and all
other Laws applicable with respect to all such employee benefit plans,
agreements and arrangements. Seller has performed in all material respects
all of its respective obligations under all such plans, agreements and
arrangements and all such plans, agreements and arrangements have been
operated in compliance with their terms. To the knowledge of Seller, there
are no Actions (other than routine claims for benefits) pending or
threatened against such plans or their assets, or arising out of such
plans, agreements or arrangements, and, to the knowledge of Seller, no
facts exist which could give rise to any such Actions (other than routine
claims for benefits).
(b) Qualified Plans.
(i) Schedule 4.10(b) lists all "employee pension benefit plans"
(within the meaning of Section 3(2) of ERISA) in Schedule 4.10(a) which are
also stock bonus, pension or profit-sharing plans within the meaning of
Section 401(a) of the Code.
(ii) Each such plan has been duly authorized by the board of directors
of Seller. Each such plan is qualified in form and operation under Section
401(a) of the Code and each trust under each such plan is exempt from tax
under Section 501(a) of the Code. To the knowledge of Seller no event has
occurred that shall or could give rise to disqualification or loss of
tax-exempt status of any such plan or trust under such sections. To the
knowledge of Seller no event has occurred that shall or could subject any
such plans to tax under Section 511 of the Code. No prohibited transaction
(within the meaning of Section 4975 of the Code) or party-in-interest
transaction (within the meaning of Section 406 of ERISA) has occurred with
respect to any of such plans.
(iii) Seller has made available to Buyer for each such plan copies of
the following documents: (i) the Form 5500 filed in each of the most recent
three plan years, including but not limited to all schedules thereto and
financial statements with attached opinions of independent accountants,
(ii) the most recent determination letter from the IRS, (iii) the
consolidated statement of assets and liabilities of such plan as of its
most recent valuation date, and (iv) the statement of changes in fund
balance and in financial position or the statement of changes in net assets
available for benefits under such plan for the most recently ended plan
year. The financial statements so delivered fairly present the financial
condition and the results or operations of each of such plans as of such
dates, in accordance with GAAP.
(c) Title IV Plans. No plan listed in Schedules 4.10(a) or (b) is a plan
subject to Title IV of ERISA.
17
(d) Union Contracts. Seller is not a party to any collective bargaining or
other agreements with labor unions, the members of which are employed by Seller,
in connection with the Photomask Business.
(e) Health Plans. All group health plans of Seller have been operated in
all material respects in compliance with the group health plan continuation
coverage requirements of Section 162(k) and Section 4980B of the Code to the
extent such requirements are applicable.
(f) Fines and Penalties. There has been no act or omission by Seller that
has given rise to or may give rise to fines, penalties, taxes or related charges
under Section 502(c) or (i) or Section 4701 of ERISA of Chapter 43 of the Code.
4.11 No Brokers or Finders
No agent, broker, finder, or investment or commercial banker, or other
Person or firm engaged by or acting on behalf of Seller or any of its respective
Affiliates in connection with the negotiation, execution or performance of this
Agreement or the transactions contemplated by this Agreement, is or will be
entitled to any brokerage or finder's or similar fee or other commission as a
result of this Agreement or such transactions.
4.12 Accuracy of Information
All information furnished by or on behalf of Seller to Buyer, its agents or
representatives in connection with the Purchased Assets, the Assumed Liabilities
and this Purchase Asset Agreement is true and correct in all material respects
and does not contain any untrue statement of material fact or omit to state a
material fact necessary to make any statement herein not misleading.
4.13 Inventories
All inventories of Seller are of good and merchantable quality, are carried
at cost (with respect to raw materials), standard cost (with respect to work in
process and finished goods) or expensed (with respect to spares), and are
currently useable or saleable in the ordinary course of business. The value of
obsolete, damaged or excess inventory and of inventory below standard quality
has been written down on the most recent balance sheet delivered to Buyer
pursuant to Section 4.2 or, with respect to inventories purchased since the
balance sheet date, on the books and records of Seller, to ascertainable market
value, or adequate reserves described on such balance sheet have been provided
therefor, and the value at which inventories are carried reflects the customary
inventory valuation policy of Seller (which fairly reflects the value of
obsolete, spoiled or excess inventory) for stating inventory.
4.14 Customers and Suppliers
Schedule 4.14 lists the names of and describes all Assumed Contracts with
and the appropriate percentage of Photomask Business attributable to, the ten
largest captive users/customers of the Photomask Business, the ten largest
merchant customers of the Photomask Business and the ten most significant
suppliers of the Photomask Business as of the first six (6) months of the
current fiscal year, and any sole-source suppliers of significant goods or
18
services (other than electricity, gas, telephone or water) to the Photomask
Business with respect to which alternative sources of supply are not readily
available on comparable terms and conditions. To Seller's Knowledge no existing
customer has threatened to transfer business to a third Person on account of the
transactions contemplated by this Agreement.
4.15 Environmental Compliance
(a) Environmental Reports. Schedule 4.15(a) contains a list of each current
report, study or filing, of which Seller is aware, and which relates to the use
of Hazardous Substances upon the Real Property in which Buyer will obtain a
leasehold interest under this Agreement, the Facility Lease Agreement, or the
transactions contemplated hereby, or upon real property currently or formerly
used, owned or operated in connection with the operation of the Photomask
Business of Seller, any Environmental Condition existing upon the real property
currently or formerly used, owned or operated in connection with the operation
of the Photomask Business of Seller or the compliance of the Photomask Business
of Seller, or any real property in which Buyer will obtain an interest under
this Agreement, the Facility Lease Agreement, or the transactions contemplated
hereby, currently or formerly used, owned or operated in connection with the
operation of the Photomask Business of Seller with any Environmental Laws. A
copy of each item listed in Schedule 4.15(a) has been made available to Buyer.
(b) Compliance with Environmental Laws: Permits. Except as disclosed in
Schedule 4.15(b), the Photomask Business of Seller and all real property and
personal property currently or formerly used, owned or operated in connection
with the operation of the Photomask Business of Seller is, and at all times in
the past has been, used or operated in all material respect in compliance with
all Environmental Laws. Seller has obtained and presently maintains all Permits
and other governmental authorizations required to operate the Photomask Business
of Seller in compliance with all Environmental Laws.
(c) Environmental Conditions: Action by Governmental Agency. Except as
disclosed in Schedule 4.15(c), no Environmental Condition exists upon the real
property in which Buyer will obtain an interest under this Agreement, the
Facility Lease Agreement, or the transactions contemplated hereby, currently or
formerly used, owned or operated in connection with the operation of the
Photomask Business of Seller and no investigation, inquiry or other proceeding
is pending or, to the knowledge of Seller, threatened by any governmental entity
with respect to the real property in which Buyer will obtain a leasehold
interest under this Agreement or the transactions contemplated hereby, currently
or formerly used, owned or operated in connection with the operation of the
Photomask Business of Seller and relating to any actual or alleged Environmental
Condition or failure to comply with any Environmental Law.
(d) Treatment, Storage or Disposal Sites. Schedule 4.15(d) contains a list
of all Hazardous Substance or waste treatment, storage or disposal sites
currently used in the operation of the Photomask Business of Seller, which list
identifies the type of Hazardous Substances or wastes that are treated, stored
or disposed of at each site and estimates of the annual amount of Hazardous
Substances or waste sent to each site. To the knowledge of Seller none of the
sites listed is the subject of federal, state, or local enforcement action or
other investigation that may lead to claims against Seller for cleanup costs,
remedial action, damages to natural resources for personal injury or property
damage. Schedule 4.15(d) contains a list of all parties currently engaged to
19
transport Hazardous Substances or wastes to such treatment, storage or disposal
sites.
4.16 Powers of Attorney
Except as set forth on Schedule 4.16. Seller has not given any power of
attorney (irrevocable or otherwise) to any Person for any purpose relating to
the Photomask Business, Purchased Assets, Assumed Liabilities, or the material
assets of the Photomask Business, other than powers of attorney given to
Governmental Authority in connection with routine qualifications to do business.
4.17 Year 2000
The Xxxxxx Semiconductor Sector (a) has conducted an assessment of its
information system technologies, automated manufacturing, billing and other
operations for the purpose of identifying, (b) has shared this assessment with
Buyer, and (c) is engaged in an effort to mitigate (which effort is continuing
in the ordinary course of business) any significant disruption in operations
that it anticipates as a consequence with of the Y2K Problem. Except as set
forth on Schedule 4.17, to the Seller's knowledge, assuming the efforts to
mitigate as set forth in the assessment are continued, with respect to the
Purchased Assets, by Buyer in the ordinary course of business after the Closing
Date, the Purchased Assets will not experience any disruption in operations as a
consequence of the Y2K problem that could reasonably be expected to have a
Material Adverse Effect on the Photomask Business. As used in this Section 4.17,
the "Y2K Problem" means a date-handling problem relating to the Year 2000 date
change that would cause a computer system, software or equipment to fail to
correctly perform, process, and handle date-related data for the dates within
and between the twentieth and twenty-first centuries and all other centuries.
4.18 Labor and Employment
Except as set forth on Schedule 4.18, Seller does not have
unfair labor practice charges or complaints pending or to the Seller's knowledge
threatened against the Semiconductor Business Unit relating to the Photomask
Business before the National Labor Relations Board or any equivalent foreign
Governmental Entity. Seller has not at any time during the last three years had,
nor to the knowledge of Seller is there now threatened, any walkout, strike,
union activity, picketing, work stoppage, work slowdown or any other similar
occurrence relating to the Photomask Business which Materially Adversely Affects
or is reasonably likely to Materially Adversely Affect the Photomask Business,
or any attempt to organize or represent the labor force of the Photomask
Business. Seller has not had a plant closing or mass layoff relating to the
Photomask Business, as such terms are defined in the Worker Adjustment and
Retraining Notification Act, or if such has occurred, Seller has given all
required notifications required in connection with such Plant Closing and/or
Mass Layoff. All products manufactured by Seller (as it relates to the Photomask
Business) are manufactured and distributed in all material respects in
compliance with all foreign, federal, state and local laws regarding the use of
labor, including, but not limited to, all laws regulating wages, hours,
immigration and working conditions. Seller (as it relates to the Photomask
Business) is in all material respects in compliance with applicable workers'
compensation insurance laws. Seller (as it relates to the Photomask Business)
20
has in all material respects complied with all laws, regulations and executive
orders to which they are subject because of any agreement or contract with any
foreign, federal or state Governmental Entity. Seller has taken no actions to
encourage any employee of the Photomask Business to leave the Seller's employ
before the Closing, or discourage any employee of the Photomask Business from
accepting the offer of employment of Buyer.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
As of the date hereof and as of the Closing, Buyer represents and warrants
to Seller and agrees with Seller as follows:
5.1 Organization and Related Matters
Parent is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of California. Sub is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Florida. Buyer has all requisite corporate power and authority to execute,
deliver and perform this Agreement, the Facility Lease Agreement, the Photomask
Supply and Strategic Alliance Agreement, the Site Services Agreement and any
other related agreements to which it is a party. On the Closing Date, Parent or
Sub shall be duly qualified or licensed to do business as a foreign corporation
in good standing in the State of Florida. Buyer has all necessary corporate
power and authority to carry on its business as now being conducted.
5.2 Authorization
The execution, delivery and performance of this Agreement, the Facility
Lease Agreement, the Photomask Supply and Strategic Alliance Agreement, the Site
Services Agreement and other related agreements by Buyer has been duly and
validly authorized by the Board of Directors of Buyer, respectively, and by all
other necessary corporate action on the part of Buyer. This Agreement, the
Facility Lease, the Photomask Supply and Strategic Alliance Agreement and any
other related agreements to which Buyer is a party, shall, prior to or
simultaneously with the Closing, be duly executed and delivered by Buyer and
constitute the legally valid and binding obligations of Buyer, enforceable
against Buyer in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws and equitable principles relating to or
limiting creditors rights generally.
5.3 Legal Proceedings
There is no Order or Action pending, or, to the knowledge of Buyer,
threatened, against or affecting Buyer or any of its respective properties or
assets that individually or when aggregated with one or more other Orders or
Actions has or if determined adversely might reasonably be expected to have a
Material Adverse Effect on Buyer's ability to perform this Agreement or any
other aspect of the transactions contemplated by this Agreement.
21
5.4 No Conflicts
The execution, delivery and performance of this Agreement, the Facility
Lease Agreement, the Photomask Supply and Strategic Alliance Agreement, the Site
Services Agreement and any related agreements by Buyer will not violate the
provisions of, or constitute a breach or default whether upon lapse of time
and/or the occurrence of any act or event or otherwise under (a) the charter
documents or bylaws of Buyer, (b) any Law to which Buyer is subject or (c) any
Contract to which Buyer is a party that is material to the financial condition,
results of operations or conduct of the business of Buyer, provided that the
appropriate regulatory approvals are received as contemplated by Section 8.1 and
specified consents, if any, are secured.
5.5 No Brokers or Finders
No agent, broker, finder or investment or commercial banker, or other
Person or firms engaged by or acting on behalf of Buyer or its Affiliates in
connection with the negotiation, execution or performance of this Agreement or
the transactions contemplated by this Agreement, is or shall be entitled to any
broker's or finder's or similar fees or other commissions as a result of this
Agreement or such transactions.
5.6 Governmental Authorizations and Consents
Except as set forth on Schedule 5.6, no consents, licenses, approvals, or
authorizations of, or registrations or declarations with, any Governmental
Authority, bureau, agency or commission, or any third party, are required to be
obtained or made by Buyer in connection with the execution, delivery,
performance, validity and enforceability of this Agreement, or the Facility
Lease Agreement, the Photomask Supply and Strategic Alliance Agreement, the Site
Services Agreement or any related agreements, other than (a) a filing with the
Federal Trade Commission and the Department of Justice under the Xxxx Xxxxx
Xxxxxx Act and (b) other consents, licenses, approvals, authorizations,
registrations or declarations, where the failure to obtain such would not have a
Material Adverse Effect on Buyer. Buyer is not currently engaged in, or
contemplating, any business transaction that would be reasonably expected to
hinder or delay the authorizations and consents referred to in this Section 5.6.
5.7 Litigation
As of the date of this Asset Purchase Agreement, no action, suit proceeding
or governmental investigation is pending or to the knowledge of Buyer,
threatened, against Buyer or its properties, at law or in equity or before any
Governmental Authority that seeks to question, delay or prevent the consummation
of the transactions contemplated hereby.
5.8 Access
Buyer has received and reviewed the Financial Statements and is acquainted
with the Photomask Business. Buyer has had an opportunity to review the assets,
books, records and contracts of the Photomask Business, and has been given the
opportunity to meet with officers and other representatives of Seller's
Semiconductor Business Unit for the purpose of
22
investigating and obtaining information regarding the Photomask Business
operations and its financial and legal affairs.
5.9 Employee Records
Buyer and Seller acknowledge that Buyer is entitled to inspect and copy the
personnel and related employment files of any of the current employees, except
for those employee records consisting of field folders, medical records and
former employee actions brought against the Seller, of the Photomask Business
who are offered employment by Buyer. Buyer acknowledges that some of this
information is considered to be confidential under state and/or Federal law.
Buyer agrees that it will keep all information obtained from Seller strictly
confidential and that it will be maintained (and disclosed, if at all) in strict
compliance with applicable state and Federal Laws.
5.10 Financial Capacity
Buyer has the financial capacity to consummate the transactions
contemplated by this Agreement, the Facility Lease Agreement, the Photomask
Supply and Strategic Alliance Agreement, the Site Services and related
agreements. Buyer has heretofore provided to Seller an accurate written
explanation of the means by which Buyer plans to finance the transactions
contemplated by this Agreement.
ARTICLE VI
COVENANTS AND REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO CONDUCT OF SELLER PRIOR TO CLOSING
6.1 Access
Prior to the Closing Date, upon reasonable notice from Buyer to Seller,
Seller shall authorize and permit Buyer and its Representatives to have
reasonable access during normal business hours, upon reasonable notice and in
such manner as shall not unreasonably interfere with the conduct of their
respective businesses, to the employees, Purchased Asset, the Real Property, and
the books, records, operating instructions and procedures of Seller, so as to
afford Buyer full opportunity to make such review, examination and investigation
of the Photomask Business as Buyer determines are reasonably necessary in
connection with the consummation of the transactions contemplated hereby. Buyer
will be permitted to make extracts from or copies of such books, records and
other documents of the Photomask Business as may be reasonably necessary in
connection with and to discuss their respective business with such third
Persons, including without limitations, their respective directors, officers,
employees, accountants, suppliers, customers, and creditors as Buyer considers
necessary or appropriate for the purposes of familiarizing itself with the
Photomask Business, the Purchased Assets and the Assumed Liabilities, obtaining
any necessary Approvals of or Permits for the transactions contemplated by this
Agreement and conducting an evaluation of the organization and Photomask
Business of Seller. The access provided by this Section 6.1 shall be subject to
the obligations of confidentiality and return of information obligations set
forth in Section 11.9 hereof.
23
6.2 Material Adverse Changes
From the date hereof to the earlier of the Closing Date or the Termination
Date, Seller shall promptly notify Buyer of, and set forth in Schedule 4.2(c),
any event of which Seller obtains knowledge which has had a Material Adverse
Effect on the Photomask Business or any of the Purchased Assets or Assumed
Liabilities or which if known as of the date hereof would have been required to
be disclosed to Buyer.
6.3 Conduct of Photomask Business
Seller hereby agrees that, with respect to the Photomask Business, from the
date hereof to the earlier of the Closing Date or the Termination Date, Seller
shall not without the prior consent in writing of Buyer (such consent not to be
unreasonably withheld or delayed):
(a) conduct the Photomask Business except in the ordinary course; or
(b) except as required by its terms, amend, terminate, renew/fail to renew
or renegotiate any Material Contract or default (or take or omit to take any
action that with or without the giving of notice or passage of time or both,
would constitute a default) in any of its obligations under any Material
Contract or any Lease or enter into any new Material Contract or any Lease to
the extent such event is adverse to the interest of the Photomask Business; or
(c) terminate, amend or fail to renew or preserve any Permits; or
(d) incur or agree to incur any obligation or liability (absolute or
contingent), except for normal and customary trade payables incurred in the
ordinary course of business, that individually calls for payment by Seller of
more than $50,000 in any specific case or $150,000 in the aggregate; or
(e) except for normal scheduled salary increases as set forth on Schedule
6.3(e), grant any general or uniform increase in the rates or pay or benefits to
employees of the Photomask Business (or a class thereof) or any increase in
salary or benefits of any employee of the Photomask Business or agent of pay any
bonus to any person, or enter into any new employment, collective bargaining or
severance agreement, or hire any Person at an annual salary in excess of
$50,000; or
(f) sell, transfer, mortgage, encumber or otherwise dispose of any
Purchased Assets (other than Inventory sold in the ordinary course of business
and replacements of equipment in the ordinary course); or
(g) make any capital expenditures or commitments on behalf of the Photomask
Business aggregating more than $50,000; or
(h) make any material investment, by purchase, contribution to capital,
property transfer, or otherwise, on behalf of the Photomask Business in any
other Person; or
(i) dispose of or permitted to lapse any Intellectual Property related
solely to the Photomask Business or any rights to its use; or
24
(j) fail to maintain or repair any Purchased Asset in accordance with
normal operating procedures and consistent with past practices of the
Semiconductor Business Unit of Seller; or
(k) quote for sale or enter into any sales transactions with any customer
on terms inconsistent with past practice; or
(l) enter into sales transactions with payment terms in excess of sixty
(60) days; or
(m) agree to or make any commitment to take any action that is or would
have been prohibited by this Section 6.3.
6.4 Notification of Certain Matters
From the date hereof to the earlier of the Closing Date or the Termination
Date, Seller shall give prompt notice to Buyer, and Buyer shall give prompt
notice to Seller, of (i) the occurrence, or failure to occur, of any event that
would be likely to cause any of its representations or warranties, contained in
this Agreement to be untrue or inaccurate in any material respect at any time
from the date of this Agreement to the Closing Date and (ii) any failure on its
part to comply with or satisfy, in any material respect, any covenant, condition
or agreement to be complied with or satisfied by it under this Agreement.
6.5 Permits and Approvals; Third Party Consents
(a) From the date hereof to the earlier of the Closing Date and the
Termination Date, Seller and Buyer each agree to cooperate and use their
commercially reasonable efforts to obtain (and shall immediately prepare all
registrations, filings and applications, requests and notices preliminary to
obtaining all) Approvals and Permits that may be necessary or that may be
reasonably requested by Buyer to consummate the transactions contemplated by
this Agreement.
(b) To the extent that the Approval of a third party with respect to any
Assumed Contract is required in connection with the transactions contemplated by
this Agreement, Seller shall use its commercially reasonable efforts to obtain
such Approval, prior to the Closing Date and in the event that any such Approval
is not obtained (but without limitation on Buyer's rights under Section 8.2),
Seller shall cooperate with Buyer to ensure that Buyer obtains the benefits of
each such Assumed Contract.
6.6 Preservation of Photomask Business Prior to Closing Date
During the period beginning on the date hereof and ending on the earlier of
the Closing Date and the Termination Date, (a) Seller shall use their
commercially reasonable efforts to preserve the Photomask Business and to
preserve the goodwill of customers, suppliers and others having business
relations with Seller relating to the Photomask Business and (b) Seller and
Buyer shall consult with each other concerning, and Seller shall cooperate to
keep available to Buyer, the services of the employees of Seller engaged in the
Photomask Business. Nothing in this Section 6.6 shall obligate Buyer after the
25
Closing to retain or offer employment to any officer or employee of Seller
except as provided in Section 7.4.
6.7 Certain Filings
From the date hereof until the earlier of the Closing Date and the
Termination Date, Buyer and Seller shall make any and all filings required to be
made on their respective parts or the part of Persons controlling such entities
under the Xxxx-Xxxxx-Xxxxxx Act. Seller and Buyer shall furnish each other such
necessary information and reasonable assistance as the other may request in
connection with its preparation of necessary filings or submissions under the
provisions of such laws. Seller and Buyer shall supply each other with copies of
all correspondence, filings or communications, including file memoranda
evidencing telephonic conferences, with representatives of any Governmental
entity or member of its staff, with respect to the transactions contemplated by
this Agreement and any related or contemplated or inconsistent transactions.
ARTICLE VII
ADDITIONAL CONTINUING COVENANTS
7.1 Noncompetition
(a) Restrictions on Competitive Activities. Seller agrees that, after the
Closing, Buyer shall be entitled to the Goodwill and going concern value of the
Photomask Business and to protect and preserve the same to the maximum extent
permitted by law. Seller also acknowledges that its management contribution to
the Photomask Business have been uniquely valuable and involve proprietary
information that would be competitively unfair to make available to any
competitor of the Photomask Business. For these and other reasons and as an
inducement to Buyer to enter into this Agreement, Seller agrees that for a
period of five (5) years after the date hereof, Seller, its subsidiaries and any
purchaser of the Xxxxxx Semiconductor Business Unit and its subsidiaries
(excluding the other portfolio companies of Sterling Holding) shall not,
directly or indirectly, for their own benefit or as agent for another, carry on
or participate in the ownership, management or control of, or the financing of,
or allow their name, reputation or knowledge to be used in or by any other
present or future business enterprise that competes with buyer, or any
subsidiary of buyer, in activities similar to the Photomask Business as of the
Closing Date in the United States and Europe using technology generally
available as of the Closing Date or derived from technology generally available
as of the Closing Date for so long as Buyer or any person entitled to or
acquiring ownership of the Goodwill of the Photomask Business or the Purchased
Assets through Buyer conducts a like business therein.
(b) Exceptions. Nothing contained herein shall preclude Seller from (i)
owning an equity interest of five percent or less of any publicly traded company
listed on a national stock exchange or on the Nasdaq national market system or
(ii) acquiring the capital stock or assets of any business that derives less
than 10% of its consolidated revenues from an activity prohibited by Section
7.1(a) above, so long as the Seller makes a commercially reasonable effort to
divest that portion of the acquired business that is engaged in said prohibited
acts within 12 months following such acquisition.
26
(c) Restrictions on Soliciting Employees by Seller. In addition, to protect
Buyer against any efforts by Seller, its Subsidiaries or Affiliates to cause
employees of the Photomask Business to terminate their employment, Seller agrees
that for a period of three (3) years following the Closing Date, neither Seller,
nor the Semiconductor Business unit of Seller shall directly or indirectly
solicit for employment any employee of the Photomask Business to leave Buyer, or
to accept any other employment or position. Nor shall Seller nor Seller's
Semiconductor Business Unit permit any employee of Buyer to participate in
Seller's job opportunity posting system.
(d) Restrictions on Soliciting Employees by Buyer. In addition, to protect
Seller and Seller's Semiconductor Business Unit against any efforts by Buyer,
its Subsidiaries or Affiliates to cause employees of the Semiconductor Business
Unit to terminate their employment, Buyer agrees that for a period of three (3)
years following the Closing Date, Buyer, shall not directly or indirectly
solicit for employment any employee of the Semiconductor Business Unit to leave
Seller or Seller's Semiconductor Business Unit, or to accept any other
employment or position with Buyer.
(e) Special Remedies and Enforcement. Seller recognizes and agrees that a
breach by Seller of any of the covenants set forth in this Section 7.1 could
cause irreparable harm to Buyer, that Buyer's remedies at law in the event of
such breach would be inadequate, and that, accordingly, in the event of such
breach a restraining order or injunction or both may be issued against Seller,
in addition to any other rights and remedies which are available to Buyer. If
this Section 7.1 is more restrictive than permitted by the Laws of any
jurisdiction in which Buyer seeks enforcement hereof, this Section 7.1 shall be
limited to the extent required to permit enforcement under such Laws. In
particular, the parties intend that the covenants contained in the preceding
portions of this Section 7.1 shall be construed as a series of separate
covenants, one for each county and city or other location in which Seller
conducts business as of the Closing Date. Except for geographic coverage, each
such separate covenant shall be deemed identical in terms. If, in any judicial
proceeding, a court shall refuse to enforce any of the separate covenants deemed
included in this paragraph, then such unenforceable covenant shall be deemed
eliminated from these provisions for the purpose of those proceedings to the
extent necessary to permit the remaining separate covenants to be enforced.
7.2 Nondisclosure of Proprietary Data
(a) After the Closing, subject to the limitations in Section 11.9 neither
Seller nor any of its representatives shall, at any time, make use of, divulge
or otherwise disclose, directly or indirectly, any trade secret or other
proprietary data (including, but not limited to, any customer list, record or
financial information) concerning the Photomask Business or the business or
policies of Seller related to the Photomask Business that Seller or any
representative of Seller may have learned as an owner or a shareholder,
employee, officer or director of the Photomask Business. In addition, neither
Seller nor any of its representatives shall make use of, divulge or otherwise
disclose, directly or indirectly, to Persons other than Buyer, any confidential
information concerning the conduct of the Photomask Business that may have been
learned in any such capacity. This Section 7.2 shall not apply to any such
information of the Photomask Business which becomes part of the public domain
through no fault of Seller. Nor shall this Section 7.2 apply to any confidential
information of Seller related to Seller's conducting its primary business of
designing, developing, manufacturing, assembling, testing, selling, leasing, and
disposing of semiconductor devices and integrated circuits.
27
(b) After the Closing, subject to the limitations in Section 11.9 neither
Buyer nor any of its representatives shall, at any time, make use of (other than
in connection with the manufacture of photomasks on behalf of Seller and the
Semiconductor Business Unit), divulge or otherwise disclose, directly or
indirectly, any trade secret or other proprietary information of Seller or
Seller's Product Mask Information that Buyer or any representative of Buyer may
have learned as the purchaser or employee of the Photomask Business. In
addition, neither Buyer nor any of its representatives shall make use of,
divulge or otherwise disclose, directly or indirectly, to Persons other than
Seller, any confidential information concerning Seller's semiconductor products
that Buyer may learn in any capacity through the purchase of the Photomask
Business. This Section 7.2 shall not apply to any such information which becomes
part of the public domain through no fault of Buyer.
7.3 Maintenance of Books and Records
Each of Seller and Buyer shall preserve until the seventh anniversary of
the Closing Date all records possessed by such party relating to the Purchased
Assets, Assumed Liabilities or operations of the Photomask Business prior to the
Closing Date. After the Closing Date, where there is a legitimate purpose, such
party shall provide the other party with access, upon prior reasonable written
request specifying the need therefor, during normal business hours, to (i) the
relevant officers and employees of such party and (ii) the books of account and
records of such party, but, in each case, only to the extent relating to the
Purchased Assets, Assumed Liabilities and operations of the Photomask Business
prior to the Closing Date, and the other party and its representatives shall
have the right to make copies of such books and records; provided, however, that
the foregoing right of access shall not be exercisable in such manner as to
interfere unreasonably with the normal operations and business of such party;
and further provided that, as to so much of such information as constitutes
trade secrets or confidential business information of such party, the requesting
party and its representatives will use due care to not disclose such information
except (x) as required by Law, (y) with the prior consent of such party, which
consent shall not be unreasonably withheld, or (z) where such information
becomes available to the public generally, or becomes generally known to
competitors of such party, through sources other than the requesting party and
its representatives. Such records may nevertheless be destroyed by a party if
such party sends the other party written notice of its intent to destroy
records, specifying with particularity the contents of the records to be
destroyed. Such records may then be destroyed after the 30th day following
delivery of such notice unless the other party objects to the destruction, in
which case the party seeking to destroy the records shall either agree to retain
such records or deliver such records to the objecting party at the objecting
party's expense.
7.4 Employment Matters
(a) Employees. Except as to individuals set forth on Schedule 7.4, as of
the close of business on the Closing Date, Seller shall cease to employ, and
Buyer shall offer employment to, all existing employees of the Photomask
Business, excluding the employee on ninety (90) day general leave of absence due
back on July, 9, 1999. The terms and conditions of the employment of the
28
employees who accept employment with Buyer shall as of the Closing Date be
substantially similar, in the aggregate, to the terms and conditions of their
employment with Seller. Seller shall use its commercially reasonable efforts to
assist Buyer in hiring such employees of the Photomask Business. Seller shall
not take any action, directly or indirectly, to prevent or discourage any such
employee of the Photomask Business from being employed by Buyer as of the
Closing Date and shall not solicit, invite, induce or entice any such employee
of the Photomask Business to remain in the employ of Seller or otherwise attempt
to retain the services of any such employee, except with the prior written
consent of Buyer. Seller agrees to consult with Buyer on all material oral or
written communications or meetings primarily regarding future employment with
such employees.
(b) Proration of Employee Benefits. All obligations for compensation,
wages, bonuses, vacation time, pay in lieu of vacation, leaves of absence, and
similar employee benefits provided by Seller or the Photomask Business and due,
earned or accrued in accordance with GAAP, prior to the Closing Date shall be
paid by Seller either directly to the employees or to Buyer on behalf of the
employees as set forth in Schedule 7.4(b). Seller shall reimburse its former
employees of the Photomask Business the value of employee education
reimbursements earned by any such employee enrolled in a qualified education
class on the Closing Date, who completes said course work after the Closing Date
in accordance with Seller's policy on educational reimbursements and the Buyer
shall have no liability in connection therewith.
(c) Severance Obligations. Seller shall be solely responsible for
liabilities and obligations, if any, for severance pay owed to employees of the
Photomask Business prior to the Closing, including, but not limited any such
liabilities and obligations arising from the events described in the first
sentence of Section 7.4(a) hereto. Buyer shall be solely responsible for any
liabilities or obligations for severance pay for employees of the Photomask
Business who become employees of Buyer. Buyer acknowledges that it has not
informed Seller of any planned or contemplated decisions or actions by Buyer or
one of its subsidiaries that would require service of notice under the WARN Act,
Buyer agrees that neither it nor any of its subsidiaries will take any action
which will cause the notice provisions of the WARN Act to become applicable to
the transactions contemplated by this Agreement.
(d) Buyer and its subsidiaries will credit employees of the Photomask
Business who become employees of Buyer with service with Seller (and
predecessors of Seller) for purposes of(i) vesting for and eligibility to
participate a 401(k) plan, but not for benefit accruals; (ii) any waiting
periods, eligibility or pre-existing condition limitations for employee welfare
benefit plans (as defined in Section 3(1) of ERISA); and (iii) eligibility and
benefit computations for vacation and flexible holiday; provided, however, that
with respect to vacation and flexible holiday plans for the remainder of
calendar year 1999 only, Buyer shall maintain vacation and flexible holiday
plans equivalent to, and in lieu of, Seller's vacation and flexible holiday
plans covering the employees of the Photomask Business immediately prior to the
Closing Date (offset by vacation time and flexible holiday time used under
Seller's vacation plans as of the Closing Date). Seller shall pay to employees
of the Photomask Business immediately prior to the Closing any amount of
flexible holiday pay credited to employees in excess of thirty-two (32) hours
after offsetting any flexible holiday time previously used in calendar year 1999
as set forth on Schedule 7.4(b). Buyer shall credit said employees with any
amounts paid prior to the Closing Date under any Welfare Plan that is a health
plan toward the satisfaction of deductible amounts and copayment minimums under
the Buyer's corresponding welfare benefit plans.
29
(e) No Third Party Beneficiaries. Notwithstanding any possible inferences
to the contrary, neither Seller nor Buyer intends for this Section 7.4 to create
any rights or obligations except as between Seller and Buyer, and no past,
present or future employees of Seller or Buyer shall be treated as third-party
beneficiaries of this Section 7.4.
7.5 Buyer's Rights in Intellectual Property
(a) Assignment of Intellectual Property Rights.
(i) Seller hereby assigns to the Buyer its entire ownership, right,
title and interest in and to Business Technology.
(ii) Seller hereby grants to Buyer (and each of its present or future
wholly-owned subsidiaries for so long as they are subsidiaries) a
royalty-free, non-exclusive, worldwide license to use the Technology under
the Intellectual Property Rights in activities similar to activities
undertaken by the Photomask Business as of the Closing Date in the
locations in the United States and Europe. This license may not be
sublicensed and may be assigned only to any person entitled to or acquiring
ownership of the Goodwill of the Photomask Business or substantially all of
the Purchased Assets through Buyer for the purpose of conducting a like
business therein.
(iii) Assignment of Software Type 1. Seller hereby assigns to Buyer
all of its right, title and interest in and to the Software Type 1
identified on Schedule 7.5(a) (iii).
(iv) License of Software Type 2. Seller hereby grants to Buyer a
royalty-free, non-exclusive, worldwide license to use Software Type 2
identified on Schedule 7.5(a)(iv) in the Photomask Business as of the
Closing Date.
(b) Assignment of Software Licenses. To the extent assignable by Seller to
Buyer, Seller hereby assigns all of its right, title, and interest in and to
Software Licenses specific to the Photomask Business and listed on Schedule
7.5(b). To the extent any Software License listed on Schedule 7.5(b) is not
assignable to Buyer, but is both specific to and used in the operation of the
Photomask Business, Seller will use commercially reasonable efforts as requested
by Buyer in writing to provide at Buyer's expense the economic benefit of such
Software License Agreement to Buyer, and upon doing such, shall be deemed to
have satisfied any and all obligations of Buyer regarding assignment or transfer
of each such Software License Agreement.
(c) Transfer of Tangible Software and Technology. Seller hereby tenders and
Buyer hereby accepts delivery of all Technology and Software Licenses assigned
to Seller under this Section 7.5
7.6 Representations Regarding Software
Seller represents that to the Seller's Knowledge:
30
(a) Schedule 7.6(a) identifies all Software Licenses used in or on behalf
of the Photomask Business on the Closing Date and during the five (5) calendar
days prior thereto;
(b) Schedule 7.5(a)(iii) identifies all Software Type 1 used in or on
behalf of the Photomask Business on the Closing Date and during the five (5)
calendar days prior thereto;
(c) Schedule 7.5(a)(iv) identifies all Software Type 2 used in or on behalf
of the Photomask Business on the Closing Date and during the five (5) calendar
days prior thereto.
If it is later determined after the Closing Date that any Software should
have been, but was not, identified on any of the Schedules 7.6(a), 7.5(a)(iii)
or 7.5(a)(iv), then as the sole remedy of Buyer to Seller's failure to identify
such Software, Seller shall consent to assign or license and effect delivery of
such Software in accord with the provisions of Section 7.5.
7.7 Sales and Transfer Taxes; Other Fees
To Seller's Knowledge pursuant to applicable Florida Department of Revenue
regulations and interpretations thereof, no sales/use tax will be due on the
sale of the machinery, equipment, supplies, or other tangible personal property
(other than inventory) used in the Photomask Business, and none of the Assets
consist of motor vehicles, aircraft, boats, mobile homes or salvage, surplus or
obsolete property on which sales/use tax would be due. However, Buyer shall pay
all real and personal property transfer taxes, if any, and all sales, use and
other similar taxes that may be imposed as a result of Buyer's failure to supply
a Resale Exemption Certificate, if any, imposed on or in connection with the
purchase, sale or transfer of the Purchased Assets to, and the assumption of the
Assumed Liabilities by, Buyer pursuant to this Agreement or on the use thereof
by Buyer after the Closing Date. Buyer shall furnish Seller with a Resale
Exemption Certificate for all inventory purchased from Seller. Buyer shall pay
all fees incurred in connection with the transfer of the Purchased Assets and
Assumed Contracts, including, but not limited to, any applicable fees which may
be due in connection with the transfer of Seller's ETEC Systems.
ARTICLE VIII
CONDITIONS OF PURCHASE
8.1 General Conditions
The obligations of the parties to effect the Closing shall be subject to
the following conditions unless waived in writing by the parties to the
Agreement:
(a) No Orders; Legal Proceedings. No Law or Order shall have been enacted,
entered, issued, promulgated or enforced by any Governmental Entity, nor shall
any Action have been instituted and remain pending or, to the knowledge of
Seller or Buyer, have been threatened and remain so by any Governmental Entity
at what would otherwise be the Closing Date, that prohibits or restricts or
would (if successful) prohibit or restrict the transactions contemplated by this
Agreement. No Governmental Entity shall have notified any party to this
31
Agreement that consummation of the transactions contemplated by this Agreement
would constitute a violation of any Laws of any jurisdiction or that it intends
to commence proceedings to restrain or prohibit such transactions or force
divestiture or rescission, unless such Governmental Entity shall have withdrawn
such notice and abandoned any such proceedings prior to the scheduled Closing,
unless nationally recognized counsel known to have expertise as to such matters
on behalf of the party against whom such action or proceeding was or would be
instituted renders to the parties a favorable opinion that such action or
proceeding is or would be without merit.
(b) Approvals. To the extent required by applicable Law, all Permits and
Approvals required to be obtained from any Governmental Entity, shall have been
received or obtained on or prior to the Closing Date without the imposition of
any burdens or conditions materially adverse to the party or parties entitled to
the benefit thereof and any applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Act shall have expired or been terminated.
8.2 Conditions to Obligations of Buyer
The obligations of Buyer to effect the Closing shall be subject to the
following conditions except to the extent waived in writing by Buyer:
(a) Representations and Warranties and Covenants of Seller. The
representations and warranties of Seller herein contained shall be true in all
material respects at the Closing Date with the same effect as though made at
such time; Seller shall have performed all obligations and complied with all
covenants and conditions required by this Agreement to be performed or complied
with by Seller at or prior to the Closing Date.
(b) No Material Adverse Change. There shall not have been any Material
Adverse Change in or affecting the Photomask Business subsequent to April 2,
1999.
(c) Opinions of Counsel. Buyer shall receive at the Closing from Xxxxxx X.
Xxxxxxx, counsel to Seller, opinions dated the Closing Date, in form and
substance substantially as set forth in Exhibit F.
(d) Consents. Seller shall have obtained and provided to Buyer evidence of
the receipt of all required Approvals and Permits listed on Schedule 4.6 and
Buyer shall have obtained all Approvals and Permits required by Law or referred
to in Section 5.2, each in form and substance reasonably satisfactory to Buyer.
(e) Changes in Law. No Law or Order shall have been enacted, entered,
issued, promulgated or enforced by any Governmental Entity, nor shall any Action
have been instituted and remain pending or, to the best knowledge of Seller,
have been threatened and remain so by any Governmental Entity at what would
otherwise be the Closing Date which would not permit the Photomask Business as
presently conducted to be continued by Buyer unimpaired following the Closing
Date.
(f) Employees. Buyer shall have determined to its satisfaction in its sole
discretion that (i) each of the persons identified by Buyer on Schedule 8.2(f)
hereto as key employees of the Photomask Business have agreed to become an
employee of Buyer upon Closing, and (ii) a satisfactory number of other
32
employees of the Photomask Business have agreed to become employees of Buyer
upon Closing.
(g) Facility Lease Agreement. Seller shall have executed and delivered to
Buyer a Lease covering the facilities used in the operation of the Photomask
Business (the "Facility Lease Agreement") substantially in the form attached
hereto as Exhibit B.
(h) Photomask Supply and Strategic Alliance Agreement. Seller shall have
executed and delivered to Buyer a photomask product supply agreement (the
"Photomask Supply and Strategic Alliance Agreement"), in form and substance
substantially as set forth in Exhibit C.
(i) Seller Certificate. An Officer of Seller shall execute a Certificate
as of the Closing Date in form and substance substantially as set forth in
Exhibit G.
(j) Site Services Agreement. Seller shall have executed and delivered to
Buyer a Site Services Agreement pursuant to which, during the term of the
Facility Lease, Seller shall provide at a commercially reasonable price to Buyer
electricity, cooling water, D.I. water, compressed air, and nitrogen, building,
clean room and environmental chamber maintenance and repair services, security
services, parking, administrative and management information systems services at
its then current prices for such services (the "Site Services Agreement") at a
commercially reasonable price. The Site Services Agreement shall be in form and
substance substantially as set forth in Exhibit D.
8.3 Conditions to Obligations of Seller
The obligations of Seller to effect the Closing shall be subject to the
following conditions, except to the extent waived in writing by Seller:
(a) Representations and Warranties and Covenants of Buyer. The
representations and warranties of Buyer herein contained shall be true in all
material respects at the Closing Date with the same effect as though made at
such time; Buyer shall have in all material respects performed all obligations
and complied with all covenants and conditions required by this Agreement to be
performed or complied with by it at or prior to the Closing Date, and Buyer
shall have delivered to Seller certificates of Buyer in form and substance
reasonably satisfactory to Seller, dated the Closing Date and signed by the
chief executive officer of Buyer, to such effect.
(b) Opinion of Counsel. Seller shall receive at the Closing from O'Melveny
& Xxxxx LLP, counsel to Buyer, opinions dated the Closing Date, in form and
substance substantially as set forth in Exhibit H.
(c) Facility Lease Agreement. Buyer shall have executed and delivered to
Seller the Facility Lease Agreement, substantially in the form of Exhibit B.
(d) Photomask Supply and Strategic Alliance Agreement. Buyer shall have
executed and delivered to Seller the Photomask Supply and Strategic Alliance
Agreement, substantially in the form of Exhibit C.
33
(e) Site Services Agreement. Buyer shall have executed and delivered to
Seller the Site Services Agreement, substantially in the form of Exhibit D.
ARTICLE IX
TERMINATION OF OBLIGATIONS; SURVIVAL
9.1 Termination of Agreement
Anything herein to the contrary notwithstanding, this Agreement and the
transactions contemplated by this Agreement shall terminate at the close of
business on July 5, 1999 (the "Termination Date") unless extended by mutual
consent in writing of Buyer and Seller and may otherwise be terminated at any
time before the Closing as follows and in no other manner:
(a) Mutual Consent. By mutual consent in writing of Buyer and Seller.
(b) Conditions to Buyer's Performance Not Met. By Buyer upon written notice
to Seller if any event occurs which would render impossible the satisfaction of
one or more conditions to the obligations of Buyer to consummate the
transactions contemplated by this Agreement as set forth in Section 8.1 or 8.2
and the Seller cannot or will not take action to cure the deficiency within
thirty days of the event.
(c) Conditions to Seller's Performance Not Met. By Seller upon written
notice to Buyer if any event occurs which would render impossible the
satisfaction of one or more conditions to the obligation of Seller to consummate
the transactions contemplated by this Agreement as set forth in Section 8.1 or
8.3 and the Buyer cannot or will not take action to cure the deficiency within
thirty days of the event.
(d) Xxxx-Xxxxx-Xxxxxx. By Buyer if Buyer shall receive a request for
further information under the Xxxx-Xxxxx-Xxxxxx Act with respect to its filing
thereunder from either the FTC or Department of Justice (provided Buyer
exercises its right to terminate this Agreement at any time prior to making a
responsive filing to such request) by delivering written notice of such
termination to Seller.
(e) Material Breach. By Buyer or Seller if there has been a material
misrepresentation or material breach on the part of the other party in its
representations, warranties or covenants set forth herein; provided, however,
that if such breach or misrepresentation is susceptible to cure, Seller or
Buyer, as the case may be, shall have 10 business days after receipt of notice
from the other party of its intention to terminate this Agreement pursuant to
this Section 9.1(f) if such misrepresentation or breach continues in which to
cure such breach or misrepresentation before the other party may so terminate
this Agreement.
34
9.2 Effect of Termination
In the event that this Agreement shall he terminated pursuant to Section
9.1, all further obligations of the parties under this Agreement shall terminate
without further liability of any party to another; provided, that, the
obligations of the parties contained in Section 11.9 and Section 11 .12 shall
survive any such termination. A termination under Section 9.1 shall not relieve
any party of any liability for a breach of, or for any misrepresentation under
this Agreement, or be deemed to constitute a waiver of any available remedy
(including specific performance if available) for any such breach or
misrepresentation.
9.3 Survival of Representations and Warranties
(a) The representations and warranties set forth in this Agreement shall
survive the Closing Date and the consummation of the transactions contemplated
hereby for a period of 18 months from the Closing Date; provided, however, that
(i) the representations and warranties set forth in Section 4.15 respecting
environmental compliance and Seller's obligations set forth in Section 10.1(d),
(e), (f) and (g) shall survive until the expiration of the applicable statute of
limitations, and (ii) the second and fourth sentences of Section 4.4(a) and the
second sentence of Section 4.4(b) shall survive indefinitely. The rights to
indemnification set forth in this Agreement based on the representations,
warranties, covenants and obligations set forth herein shall not be affected by
any investigation conducted with respect to, or any knowledge acquired (or
capable of being acquired) at any time, whether before or after the execution
and delivery of this Agreement or the Closing Date, with respect to the accuracy
or inaccuracy of or compliance with, any such representation, warranty, covenant
or obligation.
(b) No claim for the recovery of indemnifiable damages based upon the
inaccuracy of such representations and warranties may be asserted by a party
after such representations and warranties have expired; provided, however, that
claims first asserted in reasonable detail in writing to the other party within
the applicable period shall not thereafter be barred.
(c) This Section 9.3 shall not limit actions with respect to any covenant
or agreement of the parties hereto which by its terms contemplates performance
after the Closing Date, other than the indemnity obligations of the parties set
forth in Article X, hereof.
ARTICLE X
INDEMNIFICATION
10.1 Obligations of Seller
During the time periods set forth in Section 9.3, the Seller, agrees to
indemnify and hold harmless Buyer and its respective directors, officers,
shareholders, employees, affiliates, agents and assigns (the "Buyer Parties") in
respect of any and all claims, actions, suits or other proceedings and any and
all Losses, incurred by, imposed on or borne by Buyer, directly or indirectly,
as a result of, or based upon or arising from:
35
(a) any inaccuracy in or breach or nonperformance of any of the
representations, warranties, covenants or agreements made by Seller in this
Agreement whether or not of a material nature; or
(b) any other matter as to which Seller in other provisions of this
Agreement has agreed to indemnify Buyer; or
(c) any liability or obligation of Seller or any of their Affiliates
related to Seller (including the Photomask Business) not expressly assumed by
Buyer pursuant to Section 2.2(b) hereof; or
(d) any claim by a current or former employee of Seller the facts upon
which such claim is based occurred prior to the Closing Date, including but not
limited to, claims alleging wrongful discharge, employment discrimination and
wage and hour violations; or
(e) the alleged or actual violation of any law, rule or regulation, prior
to the Closing, by Seller, including, without limitation, any Environmental Law
or any conditions existing at the Closing that constitutes a violation of
Environmental Laws; or
(f) the generation, use, transportation, treatment, storage, release or
disposal, before the Closing, of Hazardous Substances by Seller at, on or under
the real property currently or formerly used, owned or operated in connection
with the operation of the business of Seller; or
(g) the presence of Hazardous Substances or the existence of an
Environmental Condition at the real property currently or formerly used, owned
or operated in connection with the operation of the business of Seller which was
present at such property or facility at any time on or prior to the Closing.
Notwithstanding the foregoing, in no event shall the aggregate liability of
Seller hereunder with respect to any Losses of the Buyer Parties exceed Five
Million Dollars ($5,000,000), except with respect to Losses resulting from
Seller's fraudulent actions or inactions, in which case the aggregate liability
of Seller hereunder shall be without limit.
10.2 Obligations of Buyer
(a) General. During the time periods set forth in Section 9.3, Buyer agrees
to indemnify and hold harmless, Seller and their respective directors, officers,
shareholders, employees, affiliates, agents and assigns in respect of any and
all claims, actions, suits or other proceedings, and any and all Losses incurred
by, imposed on or borne by Seller, directly or indirectly, as a result of, or
based upon or arising from, any inaccuracy in or breach or nonperformance of any
of the Assumed Contracts, Assumed Liabilities and post-Closing obligations of
the Photomask Business, the representations, warranties, covenants or agreements
made by Buyer in or pursuant to this Agreement.
(b) With Respect to Environmental Conditions. Buyer agrees to indemnify and
hold Seller and its Subsidiaries and Affiliates harmless from and against and in
respect of any of the following, including any damage, expense, loss, claims,
incidental and consequential damages (including attorney and expert fees) and
any such amounts related to, arising from or caused by the following:
36
(i) All liabilities of any nature, whether accrued, absolute,
contingent or otherwise, arising from or caused by any act or omission by
Buyer after the Closing Date including the storage, use, manufacture,
transportation, disposal, release, discharge or emission by Buyer of any
Hazardous Substance while operating the Photomask Business; and
(ii) the exposure to any Hazardous Substance after the Closing Date of
any person engaged in activities on the Real Property, provided the
presence of such Hazardous Substance is not the result of any act or
omission of Seller or Seller's employees on, after or prior to the Closing
Date;
(iii) any disposal after the Closing Date into any landfill or other
disposal facility of a Hazardous Substance by Buyer or by any person to
whom Hazardous Substances have been directly or indirectly delivered in
connection with the operation by Buyer of the Photomask Business.
10.3 Procedure and Other Matters
(a) Procedure. If a claim by a third party is made against an indemnified
party (the "Indemnified Party"), and if such party intends to seek indemnity
with respect thereto under this Agreement from the other party (the
"Indemnifying Party"), the Indemnified Party shall promptly, but in any event,
within ten (10) business days, notify the Indemnifying Party in writing of such
claims setting forth such claims in reasonable detail. The failure to give such
notice shall not relieve the Indemnifying Party of any liability hereunder
except to the extent that the Indemnifying Party is actually prejudiced thereby.
The Indemnifying Party shall have thirty (30) days after receipt of such notice
to undertake, conduct and control, through counsel of its own choosing and at
its own expense, the settlement or defense thereof (except in such instances
where the settlement includes other than strictly the payment of money, in which
case such settlement shall not be entered into without the written consent of
the Indemnified Party, which consent shall not be unreasonably withheld or
delayed). An Indemnifying Party's undertaking to conduct and control the
settlement and defense of such a claim shall constitute an acknowledgement of
such Indemnifying Party's obligation hereunder to indemnify the Indemnified
Party against such claim. The Indemnified Party may participate in (but not
control) such settlement or defense through counsel chosen by such Indemnified
Party; provided, that, the fees and expenses of such counsel shall be borne by
such Indemnified Party. If the Indemnifying Party does not notify the
Indemnified Party in writing within thirty (30) days after the receipt of the
Indemnified Party's notice of a claim of indemnity hereunder that it elects to
undertake the defense thereof, the Indemnified Party shall have the right to
contest, settle or compromise the claim but shall not thereby waive any right to
indemnity therefor pursuant to this Agreement.
(b) Other Matters. The provisions of this Article X are subject to the
rights of any Indemnified Party's insurer which may be defending any such claim.
If the Indemnifying Party makes any payment hereunder of a Loss, the
Indemnifying Party shall be subrogated, to the extent of such payment, to the
rights of the Indemnified Party against any insurer or third party with respect
to such Loss. Nothing in this Section 10.3 shall be deemed to obligate any
37
Person to maintain any insurance or to pursue any claim against any insurer or
third party.
Notwithstanding anything to the contrary contained in this Agreement, (i)
any indemnification owed under this Agreement shall be reduced by the amount of
any reimbursement actually received by an Indemnified Party from any insurance
carriers or from third parties; (ii) the amount of any payment to Buyer by
Seller on account of indemnification for Losses relating to taxes shall be
reduced or increased, as appropriate, by the amount of any corresponding
federal, state, local, foreign or other income tax benefit or income tax cost
actually received or paid by Buyer from payment of the liability upon which the
claim for indemnification is based or from payment to Buyer of the amount of the
indemnity payment.
(c) Cooperation in Defending Claims. Each party to this Agreement shall
cooperate in every reasonable way with the party or parties assuming
responsibility for the defense and disposition of any claim of indemnity
hereunder, including making available to the defending party reasonable access
during normal business hours, upon reasonable notice and in such a manner as
shall not unreasonably interfere with the conduct of the other party's business,
all books, records, operating instructions and procedures, and other information
as the defending party may from time to time reasonably request in order to
defend such claim, including the right to make copies of such books, records and
other documents and to discuss with such third Persons, including, without
limitation, the directors, officers, employees, accountants, counsel, suppliers,
customers and creditors, of the other parties, as the defending party considers
necessary or appropriate for the purpose of defending such claim. The access
provided by this Section 10.3(c) shall be subjection to the obligations of
confidentiality and return of information obligations set forth in Section 11.9
hereof.
10.4 Survival
Subject to Section 9.3, this Article X shall survive any termination of
this Agreement.
10.5 Notice by Seller
Seller agrees to notify Buyer of any liabilities, claims or
misrepresentations, breaches or other matters covered by this Article X upon
discovery or receipt of notice thereof (other than from Buyer), whether before
or after Closing.
10.6 Exclusive Remedy
To the extent permitted by Law, the indemnity provisions of this Article X
shall be the sole and exclusive remedy of the parties with respect to any breach
of the representations and warranties contained in this Agreement that is
asserted subsequent to Closing, provided that the foregoing shall not prohibit
any party from seeking an injunction or any other equitable remedy in respect
thereof.
38
10.7 No Offsets
Nothing herein shall be construed so as to permit either party to offset
the amount of any unresolved claim which may arise under this Agreement from any
payments due the other party under this Agreement.
ARTICLE XI
GENERAL
11.1 Amendments; Waivers
This Agreement and any schedule or exhibit attached hereto may be amended
only by agreement in writing of the parties to the Agreement. No waiver of any
provision nor consent to any exception to the terms of this Agreement or any
agreement contemplated hereby shall be effective unless in writing and signed by
the party to be bound and then only to the specific purpose, extent and instance
so provided.
11.2 Schedules; Exhibits; Integration
Each Schedule and Exhibit delivered pursuant to the terms of this Agreement
shall be in writing and shall constitute a part of this Agreement, although
Schedules need not be attached to each copy of this Agreement. This Agreement,
together with such Schedules and Exhibits, constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements and understandings of the parties in connection therewith,
including, but not limited to, the letter of intent dated April, 20, 1999,
between Buyer and Seller.
11.3 Commercially Reasonable Efforts; Further Assurances
(a) Commitment to Commercially Reasonable Efforts. Each party shall use its
commercially reasonable efforts to cause all conditions to its and the other
parties' obligations to be timely satisfied and to perform and fulfill all
obligations on its part to be performed and fulfilled under this Agreement, to
the end that the transactions contemplated by this Agreement shall be effected
substantially in accordance with its terms as soon as reasonably practicable.
The parties shall cooperate with each other in such actions and in securing
requisite Approvals. Each party shall execute and deliver both before and after
the Closing such further certificates, agreements and other documents and take
such other actions, including obtaining third party consents, as the other party
may reasonably request to consummate or implement the transactions contemplated
hereby or to evidence such events or matters including the assignment of the
Insurance Claims.
(b) Limitation. As used in this Agreement, the term "commercially
reasonable efforts" shall not mean efforts which require the performing party to
do any act that is unreasonable under the circumstances or to expend any funds
other than in payment of reasonable out-of-pocket expenses incurred in
39
satisfying obligations hereunder, including but not limited to the fees,
expenses and disbursements of its accountants, actuaries, counsel and other
professional advisers.
11.4 Governing Law; Choice of Forum; Consent to Personal Jurisdiction
This Agreement and the legal relations between the parties shall be
governed by and construed in accordance with the laws of the State of Florida
except to the extent that certain matters are preempted by federal law or are
governed by the law of the jurisdiction of organization/incorporation of the
respective parties.
11.5 No Assignment
Neither this Agreement (nor related agreements pursuant to this Agreement)
nor any rights or obligations under any of them are assignable, except that
Buyer may assign its rights hereunder and under any related agreement entered
into in connection herewith (including but not limited to its rights under
Article X) to any wholly-owned subsidiary or Affiliate of Buyer or to any
post-Closing purchaser(s) of all of the capital stock of Buyer or of
substantially all of the Purchased Assets, and except that Seller may assign its
rights hereunder and under any related agreement entered into in connection
herewith (including but not limited to its rights under Article X) to any
wholly-owned subsidiary or Affiliate of Seller or to any post-Closing
purchaser(s) of substantially all of the Semiconductor Business Unit of the
Seller.
11.6 Headings
The descriptive headings of the articles, sections and subsections of this
Agreement are for convenience only and do not constitute a part of this
Agreement.
11.7 Counterparts
This Agreement and any amendment hereto or any other agreement (or
document) delivered pursuant hereto may be executed in one or more counterparts
and by different parties in separate counterparts. All of such counterparts
shall constitute one and the same agreement (or other document) and shall become
effective (unless otherwise therein provided) when one or more counterparts have
been signed by each party and delivered to the other party.
11.8 Publicity and Reports
Seller and Buyer shall coordinate all publicity relating to
the transactions contemplated by this Agreement, and no party shall issue any
press release, publicity statement or other public notice relating to this
Agreement, or the transactions contemplated by this Agreement, without obtaining
the prior consent of Seller and Buyer except to the extent that independent
legal counsel to Seller or Buyer, as the case may be, shall advise the other
party to the effect that a particular action is required by applicable Law.
Buyer and Seller shall obtain the prior consent of the other party to the form
and content of any application or report made to any Governmental Entity that
relates or refers to this Agreement.
40
11.9 Confidentiality
All information disclosed in writing and designated in writing as
confidential by any party (or its representatives) whether before or after the
date hereof, in connection with the transactions contemplated by, or the
discussions and negotiations preceding, this Agreement to any other party (or
its representatives) shall be kept confidential by such other party and its
representatives and shall not be used by any Persons other than as contemplated
by this Agreement, except to the extent that such information (i) was known by
the recipient when received and was not covered by any other obligation of
confidentiality, whether contained elsewhere in this Agreement, or in a separate
agreement, (ii) it is or hereafter becomes lawfully obtainable from other
sources, (iii) is necessary or appropriate to disclose to a Governmental Entity
having jurisdiction over the parties, (iv) as may otherwise be required by law
or (v) to the extent such duty as to confidentiality is waived in writing by the
other party. If this Agreement is terminated, each party shall use all
reasonable efforts to return upon written request from the other party all
documents (and reproductions thereof) received by it or its representatives from
such other party (and, in the case of reproductions, all such reproductions made
by the receiving party) that include information not within the exceptions
contained in the first sentence of this Section 11.9, unless the recipients
provide reasonable written assurances satisfactory to the requesting party that
such documents have been destroyed and no originals or copies of such documents
have been retained for any purpose. Upon consummation of the Closing, this
Section 11.9 shall not, however, limit Buyer's use of information provided to it
in connection with the operation of the Photomask Business except with respect
to Seller's Product Mask Information which may not be used in manufacturing
Photomasks for third parties but may be used in manufacturing Photomasks for
Seller and its Affiliates.
11.10 Parties in Interest
This Agreement shall be binding upon and inure to the benefit of each
party, and nothing in this Agreement, express or implied, is intended to confer
upon any other person any rights or remedies of any nature whatsoever under or
by reason of this Agreement. Nothing in this Agreement is intended to relieve or
discharge the obligation of any third person to, or to confer any right of
subrogation or action over against, any party to this Agreement.
11.11 Notices
Any notice or other communication hereunder must be given in writing and
either (a) delivered in person, (b) transmitted by telex, facsimile or
telecommunications mechanism provided that any notice so given is also mailed as
provided in clause (c), or (c) mailed by certified or registered mail, postage
prepaid, as follows:
If to Buyer, addressed to:
Align-Rite International, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. XxxXxxxxx
Chairman of the Board and Chief Executive Officer
41
With a copy to:
J. Xxx Xxxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
If to Seller, addressed to:
Xxxxxx Corporation
Semiconductor Sector
Attention: Xxxxxxx X. Xxxxxxxx
0000 Xxxx Xxx Xxxx X.X.
Mail Stop 53-198
Xxxx Xxx, XX 00000
With a copy to:
Xxxxxx Corporation
Xxxxxxx X. Xxxxxxxxxx
Vice President, General Counsel and Secretary
0000 X. XXXX Xxxxxxxxx
Xxxxxxxxx, Xx 00000
Fax: (000)000-0000
or to such other address or to such other person as either party shall have last
designated by such notice to the other party. Each such notice or other
communication shall be effective (i) if given by telecommunication, when
transmitted to the applicable number so specified in (or pursuant to) this
Section 11.11 and an appropriate confirmation is received, (ii) if given by
certified mail, postage prepaid, return receipt requested, three days after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when actually
delivered at such address.
11.12 Expenses
Except as provided in Section 2.3 hereof, each of Seller and Buyer shall
pay its own expenses incident to the negotiation, preparation and performance of
this Agreement and the transactions contemplated hereby, including but not
limited to the fees, expenses and disbursements of its investment bankers,
accountants and counsel and of securing third party consents and approvals
required to be obtained by it except as otherwise expressly provided in this
Section 11.12. Seller agrees to pay one-half of Buyer's fees and expenses
related to compliance with the Xxxx-Xxxxx-Xxxxxx Act, in an amount not to exceed
$25,000, within thirty (30) days of the Closing Date.
42
Buyer shall pay (i) any documentary transfer tax, real property transfer or
gains tax, document recording fees and charges, and any income, franchise or
revenue tax or excise tax (and any surtax thereon) due in connection with the
consummation of the transactions contemplated by this Agreement.
11.13 Remedies; Waiver
Except to the extent this Section 11.13 is inconsistent with any other
provision in this Agreement or applicable law, all rights and remedies existing
under this Agreement and any related agreements or documents are cumulative to,
and not exclusive of, any rights or remedies otherwise available under
applicable Law. No failure on the part of any party to exercise or delay in
exercising any right hereunder shall be deemed a waiver thereof, nor shall any
single or partial exercise preclude any further or other exercise of such or any
other right.
11.14 Attorneys' Fees
In the event of any Action for the breach of this Agreement or
misrepresentation by any party, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and expenses incurred in such Action.
Attorneys' fees incurred in enforcing any judgment in respect of this
Agreement are recoverable as a separate item. The preceding sentence is intended
to be severable from the other provisions of this Agreement and to survive any
judgment and, to the maximum extent permitted by law, shall not be deemed merged
into any such judgment.
11.15 Knowledge Convention
Whenever any statement herein or in any schedule, exhibit, certificate or
other documents delivered to any party pursuant to this Agreement is made "to
the knowledge of' or words of similar intent or effect of any party or its
representative, such statement shall refer to the knowledge of such Person, and
such Person shall make such statement only after conducting a reasonable inquiry
concerning the subject matter thereof, and each statement shall be deemed to
include a representation that such investigation has been conducted; provided,
however, that with respect to Seller, such phrases shall mean the knowledge of
Xxx Xxxx, Xxxxxxx Xxxxx, Xxx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx Xxxxx and Xxxxx
Xxxxxxxxx.
11.16 Representation By Counsel and Other Advisors; Interpretation
Seller and Buyer each acknowledge that each party to this Agreement has
been represented by counsel, financial, technical or other experts it deems
necessary or desirable before entering into this Agreement. and the transactions
contemplated by this Agreement. Each party represents and warrants that it has
read, knows, understands and agrees with the terms and conditions of the
Agreement. Neither party has relied upon any oral representation of the other
party in entering this Agreement. All discussions, estimates or projections
developed by a party during the course of negotiating the terms and conditions
of this Agreement are by way of illustration only, and are not binding or
enforceable against the other party in law or in equity. The provisions of this
Agreement shall be interpreted in a reasonable manner to effect the intent of
Buyer and Seller.
43
11.17 Specific Performance
Seller and Buyer each acknowledge that, in view of the uniqueness of the
Photomask Business and the transactions contemplated by this Agreement, the
other party would not have an adequate remedy at law for money damages in the
event that this Agreement has not been performed in accordance with its terms.
Each party therefore agrees that the other party shall be entitled to specific
enforcement of the terms hereof in addition to any other remedy to which it may
be entitled, at law or in equity.
11.18 Severability
If any provision of this Agreement is determined to be invalid, illegal or
unenforceable by any Governmental Entity, the remaining provisions of this
Agreement shall remain in full force and effect provided that the economic and
legal substance of the transactions contemplated is not affected in any manner
materially adverse to any party. In the event of any such determination, the
parties agree to negotiate in good faith to modify this Agreement to fulfill as
closely as possible the original intents and purposes hereof. To the extent
permitted by Law, the parties hereby to the same extent waive any provision of
Law that renders any provision hereof prohibited or unenforceable in any
respect.
11.19 Dispute Resolution and Arbitration
In the event that any dispute arises among the parties pertaining to the
subject matter of this Agreement, and the parties, through the Buyer's senior
management and the Seller's senior management, are unable to resolve such
dispute within a reasonable time through negotiations and mediation efforts by
senior executives of both parties, such dispute shall be resolved as set forth
in this Section 11.19
(a) The procedures of this Section 11.19 may be initiated by a written
notice ("Dispute Notice") given by one party ("Claimant") to the other, but not
before 30 days have passed during which the parties have been unable to reach a
resolution as described above. The Dispute Notice shall be accompanied by (i) a
statement of the Claimant describing the dispute in reasonable detail and (ii)
documentation, if any, supporting the Claimant's position on the dispute. Within
twenty (20) days after the other party's ("Respondent") receipt of the Dispute
Notice and accompanying materials, the parties shall submit the dispute to
mediation in the Orlando, Florida area under the rules of the American
Arbitration Association. All negotiations and mediation procedures pursuant to
this paragraph (a) shall be confidential and treated as compromise and
settlement negotiations and shall not be admissible in any arbitration or other
proceeding.
(b) If the dispute is not resolved as provided in paragraph (a) within
sixty (60) days after the Respondent's receipt of the Dispute Notice, the
dispute shall be resolved by binding arbitration. Within the sixty-day period
referred to in the immediately preceding sentence, the parties shall agree on a
single arbitrator to resolve the dispute. If the parties fail to agree on the
designation of an arbitrator within said sixty-day period, the American
Arbitration Association in the Orlando, Florida area shall be requested to
designate the single arbitrator. If the arbitrator becomes disabled, resigns or
44
is otherwise unable to discharge the arbitrator's duties, the arbitrator's
successor shall be appointed in the same manner as the arbitrator was appointed.
(c) Except as otherwise provided in this Section 11.19, the arbitration
shall be conducted in accordance with the Commercial Rules of the American
Arbitration Association, which shall be governed by the United States
Arbitration Act.
(d) Any resolution reached through mediation and any award arising out of
arbitration (i) shall be binding and conclusive upon the parties; (ii) shall be
limited to a holding for or against a party, and affording such monetary remedy
as is deemed equitable, just and within the scope of this Agreement; (iii) may
not include special, incidental, consequential or punitive damages; (iv) may in
appropriate circumstances include injunctive relief; and (v) may be entered in
court in accordance with the United States Arbitration Act.
(d) Arbitration shall not be deemed a waiver of any right of termination
under this Agreement, and the arbitrator is not empowered to act or make any
award other than based solely on the rights and obligations of the parties prior
to termination in accordance with this Agreement.
(f) The arbitrator may not limit, expand or otherwise modify the terms of
this Agreement.
(g) The laws of the State of Florida shall apply to any mediation,
arbitration, or litigation arising under this Agreement.
(h) Each party shall bear its own expenses incurred in any mediation,
arbitration or litigation, but any expenses related to the compensation and the
costs of any mediator or arbitrator shall be borne equally by the parties to the
dispute.
(i) A request by a party to a court for interim measures necessary to
preserve a party's rights and remedies for resolution pursuant to this Section
11.19 shall not be deemed a waiver of the obligation to mediate or of the
agreement to arbitrate.
(j) The parties, their representatives, other participants and the mediator
or arbitrator shall hold the existence, content and result of mediation or
arbitration in confidence.
45
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by a duly authorized officer as of the day and year first above
written.
ALIGN-RITE INTERNATIONAL, INC.,
a California corporation
By: /s/ Xxxxx XxxXxxxxx
-------------------------
Xxxxx XxxXxxxxx
Chairman of the Board and
Chief Executive Officer
ALIGN-RITE, INC.,
a Florida corporation
By: /s/ Xxxxx XxxXxxxxx
-------------------------
Xxxxx XxxXxxxxx
Chairman of the Board
XXXXXX CORPORATION,
a Delaware corporation
By: /s/ X.X. Xxxxxx
-------------------------
X.X. Xxxxxx
Vice President-General Manager Operations
46
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools and Computer
Hardware being purchased by Buyer (continued)
FIXED ASSETS P11 FY'99
BUILDING 60 - SORTED BY ASSET NUMBER
-----------------------------------------------------------------------------------------------
BLDG. ASSET DIV DEPT ASSET DESCRIPTION
NUMBER
-----------------------------------------------------------------------------------------------
60 792031B OR 9460 STEAM HUMIDIFIER ORF
60 900111A OR 7150 APPLE LASERWRITER
60 908790F OR 0000 XXXXXXXX
60 913351B OR 7120 SOFTWARE, DBCS, CALMA
60 913489A OR 7140 CHAMBER. GCA. PBS
60 913489B OR 7140 INSTALL, CHAMBER, GC
60 913636B OR 7120 NIKON MEASURING INST
60 914496A OR 7120 HOTTANK, CORNING, VC
60 914536A OR 7120 REPAIR, QUANTRONICS I
60 914936A OR 7140 PROCESSOR, APT, 9155
60 915393A OR 7120 GRINDER, XXXXXXX, LXUT
60 916177A OR 7120 INSPECT, HORIBA, P1000
60 916177B OR 7120 FREIGHT
60 916259A OR 7120 CHAMBER, HORIBA
60 916400A OR 7120 MOTORIZED IMAGE ROTA
60 916400B OR 7120 XXX XXX XXXXXXX XXXX
00 000000X XX 0000 MICRO LASER PARTICLE
60 930187A OR 7140 CD, OSI, VIDEO
60 930187B OR 7140 RETROFIT KIT, OSI CC
60 940719A OR 7120 ISOLATION, XXXXX, 219E
60 940758A OR 7120 CONTACT PRINTER
60 941637A OR 7120 INSPECT, XXX, 000X
60 941637B OR 7120 UPG TO RIA II
60 941637C OR 7120 7 X 7 MASK HOLDER
60 942964A OR 7120 PHOTOMASK CLEANER W/
60 952025A OR 7120 QC MASK INSPECT SYST
60 952301A OR 7120 PELLICLE MOUNTER
60 952981A OR 7120 NIKON 5i LASER MEASU
60 955104A OR 0000 XXXXXXXX
60 X00000000 OR 7140 MEBES, ETEC, M78
60 G1030078A OR 7140 REFURBISHED M78
60 G1030078C OR 7140 MEBES IV E-BEAM UPG
60 G10336548 OR 7140 MEBES, ETEC, M67
60 G1033654A OR 0000 XXXXXXXX
60 G10336572 OR 7150 AMPLIFIER SYSTEM
60 G10336580 OR 7140 AMPLIFIER, XXXXXX, N
60 X00000000 OR 7120 COMPARATOR, NIKON 2
60 X00000000 OR 7120 INSPECT, XXX, 000
-----------------------------------------------------------------------------------------------
47
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools and Computer
Hardware being purchased by Buyer (continued)
-----------------------------------------------------------------------------------------------
BLDG. ASSET DIV DEPT ASSET DESCRIPTION
NUMBER
-----------------------------------------------------------------------------------------------
60 G10336679 OR 7140 PROCESSOR, APT, 915
60 G10336653 OR 7120 CHAMBER
60 G10336661 OR 7140 PROCESSOR, APT, 915
60 G1354467A OR 7130 PRINTER, TAMARACK, 1
60 G1354558A OR 7130 PRINTER, TAMARACK, 1
60 G1354777A OR 7130 TITLER, TAMARACK, CP
60 G13354813A OR 7130 PROCESSOR, APT, 914-
60 G1354975A OR 7130 PROCESSOR, APT, 914
60 G1355180A OR 7130 XXXXXXX, XXX, 0000
60 G1355182A OR 7140 PROCESSOR, APT, 914-
60 G1355238A OR 7120 REPAIR, QUANTRONICS, I
60 G1355239A OR 7120 INSPECT, XXX, 000
60 G1355239B OR 7120 HOLDER, XXX, 0X0X0.0
60 G1355261A OR 7120 CD, LEITZ, MPVCD#1
60 G1355366A OR 7140 PLOTTER, VERDATEC, M
60 G1355435A OR 7120 INSP.REP, KLA/QUANT
60 G1355435B OR 7120 PAY, FINAL, DRSII/22
60 G1355435C OR 7120 KLA 204 CONVERSION K
60 G1355435D OR 7120 UPGRADE TO DRS-II
60 G1355465A OR 7120 COMPUTER, IBM
60 G1355549A OR 7120 CD, LETIZ, MPVCD#2
60 G1355605A OR 7130 SCOPE, B&L STEREO
60 G1355606A OR 7130 SCOPE, B&L, STEREO
60 G1355615A OR 7140 SURFSCAN
60 G1355618A OR 7120 CD, LEITZ, MPVCD#3
60 G1355668A OR 7150 COMPUTER, TANDY, 200
60 G1355669A OR 7120 COMPUTER, TANDY, 300
60 G1355690 OR 7120 INSPECT, XXX, 000
60 G1610325A OR 7130 CLEANER, UT, 603
60 G1610326A OR 7120 CLEANER, UT 603
60 G1610327A OR 7120 CLEANER, UT 603
60 G1900053A OR 7140 SCOPE, LEITZ, ERGOLUX
60 G1900074A OR 7140 COMPRESSOR, CHAMP #3
60 G1900075A OR 7140 COMPRESSOR, CHAMP #4?
60 G1900076A OR 7140 XXXXXXXXXX, XXXXX #0
00 X000000X XX 0000 COMPRESSOR, CHAMP #2
60 G1900079A OR 7140 X0 XXXXXXX, XXXX, ET
-----------------------------------------------------------------------------------------------
48
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools and Computer
Hardware being purchased by Buyer (continued)
-----------------------------------------------------------------------------------------------
AR- Asset Bldg. Div. Dept. Description
Tag
-----------------------------------------------------------------------------------------------
79 No Tag 60 OR 7150 PT/HP 9-track tape/on Mask
80 No Tag 60 OR 0000 Xxxx Xxxxx tower/on Mask
81 60 CONTROL, ROBERTSHAW
103 910205A 60 OR 7120 WETDECK, 4'
104 906340A 60 OR 7130 WETDECK 5'
105 G10314794 60 INSPECT, KLA201, 106
106 903698A 60 OR 5450 PRINTER, KLA, 70
107 920086 60 TERMINAL, VT330
108 60 HCM 100D, PMN9193
112 913496A 60 OR 7120 CAMERA, NIKON, 21
114 012101 60 MICROSCOPE, M&M
115 911499A 60 OR 7140 SCOPE, LEITZ, SMLUX
121 906344A 60 OR 7130 WETDECK, 6'
121 906343A 60 OR 7130 WETDECK, 6'
126 9114325A 60 OR 7120 XXXXXXXXX, XXXXX, XXX, 00
127 SOM900110 60 PRINTER, KLA, 70
128 905979 60 PRINTER, DECWRITER II
131 906342A 60 OR 7140 WETDECK, 4'
132 906341A 60 OR 7140 WETDECK, 4'
135 916455 60 CD, OS12
136 907731A 60 OR 7140 PLASMA, LFE
136 907738A 60 OR 7140 PUMP, LFE, PLASMA
137 914183 60 CD, OS13
138 60 TABLE, KINETIC
143 954255 60 PROCESSOR, HME
145 905900A 60 OR 7130 PROCESSOR, APT, 914, ET ETCH
148 012468 60 OVEN BLUE M
150 906338 60 WETDECK, 4'
153 X00000000 00 XXXXXXX, XXXXXXX, 0"
154 SOM900014 60 CLEANER, UT, 603
155 913401A 60 OR 7120 METER OAI EXPOSURE
158 909101B 60 OR 7120 MASK HOLDER, KLA, 100
158 909101A 60 OR 7120 INSPECT, KLA, 100
162 60 OR 7120 MEBES LOADER - M78
164 G10269195 60 TITLER, TAMARACK, 153
167 914970 60 CLEANER, UT, 2066
168 913179 60 OVEN, BLUE M
169 G619932430 60 COMPARATOR, NIKON, CM6
170 906339A 60 OR 7130 WETDECK, 4'
171 012463 60 INSPECT, CODE A, 012565
49
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools and Computer
Hardware being purchased by Buyer (continued)
MECHANICAL AND ELECTRICAL ROOM
Compressed Air Dryer (2)
Piping
Central Chiller (L96)
Central Chiller (L92)
Emergency Chiller
Chilled Water Pump (2)
Refrigerant Monitor
Steam Humidifier (AHU 1, 2, 3, 4)
Boiler-Steam Air Handlers (1, 2, 3, 4, 5)
Air Handlers (6, 7)
Chillers Controls (CSI)
Vacuum Pump
DI Wafer Pumpsl Filters
ExideSys. 150
Installation Charges
Electrical Upgrade (1991)
MCC Model 5 Control
Elec. Switch Gears
Basic Lite Fixtures
VAX HARDWARE ASSETS
Xxxxxx Alias Model/Device
------------ --------------
Vmsy2K VAX 4000-700 (128m of memory)
Chetah Alpha Server 2100
Mask Microvax 3800
Xxxxx X Xxxxx Microvax 3100
Jaguar VAXstation 3100
Cougar/Lynx VAXstation 4000-60
Lion/Puma DECstation 3000-60
HSSDEV AU 4/52 DLT Tape Silo
HSSDEV P228 2.L GB SCSI Disk
HSSDEV RZ29 4.3 GB SCSI Disk
HSSDEV BA350-JA SCSI Storage Shelf
HSSDEV TKZO9-VA (8mm Tape Drive)
50
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools and Computer
Hardware being purchased by Buyer - (continued)
Telecommunications Equipment, Personal Computer
and Related Equipment
Customer Service (Bldg. 56)
HP Design Jet 455A Plotter
Cougar 4000-60/Cougar
VAX 4000 CPU Upgrade
TAPE, DEC, on Cougar
VAX 3000 Puma/sn AB43800GCC
ULTRA 30/Wildfire
8505XL EXABYTE/on Wildfire
SUN SPARC 2/Starfire
VAX 3000/Lion/sn AB43800GWG
Plain Paper Fax
HP LaserJet Printer I Wildfire
Dell Optiplex/Cust. Data PC
Compaq DP SB/Xx Xxxxx
Compaq Deskpro/Xxx Xxxxxxxx
Compaq DP 4000/Xxxxxx Xxxxxxx
Compaq DP 575/Xxxxxx Xxxxxxx
Compaq Deskpro/Xxxxxx Xxxx
Compuadd 486/Xxxxx Xxxxxxxxx
Compaq P166 I Xxxxx Xxxxxxxxx
Compaq DP 575/Xxxx Xxxxx
Compaq 575/Xxxxx Xxx
Compaq DP4000/Xxxx Xxxxxxx
Portege6SOCT Laptop/J Milispaugh
HP LaserJet ifi/J Xxxxxxxxxx
Compaq DP5 100/C Xxxxxx
HP LaserJet II Printer/C Xxxxxx
Compaq 266/Xxxxx Xxxxxxx
Maintenance
Terminal, Dec, VT340/J Xxxxxx
Camera, 3M, Microfiche
CPQ Deskpro 2000/Xxx Xxxxxx
HP LaserJet 4si/Old Starfire Printer
Compaq DP/J Xxxxxxxxxxx
Compaq DP 4000/Xxxxx Xxxxxxxxx
Compaq 575/Xxx Xxxxxxxxx
Compaq DP SB/Xxxx Xxxxx
51
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools and Computer
Hardware being purchased by Buyer - (continued)
Telecommunications Equipment, Personal Computer
and Related Equipment - continued
Telecommunications (Bldg. 56)
Fastiron -24 Ports
Chassis, Base T Conc
10 Base T Chassis
28115E 100M Stackable
Xyplex Server Chassi
10Baset Monitor Card
2115R 16 Port 100 BA
Base T Connector
3000 T Connector
3000 T Concentrator
Telecom & Computers - Building 60
Dell P75/Xxxxxx Xxxxxxxx
Compaq DPSB/N Xxxxxx
Gateway 2000/Xxxx Xxxxx
Lexmark Printer/B & Ship
Compaq DPSB/Xxx Xxxxx
CPQ Deskpro 2000/F Xxxxxxxx
Compaq Prolinea 486 I MEBES
Compaq/Xxxxxx Xxxx Sys
Compaq 286 I Particle Monitor
Add-on Costs/Particle Monitor
Compaq 486/Xxx Xxxx box
CPQ 5166MMXJ/Xxxx & Ship
Compaq 386/R Xxxxxx/home
Compaq DP2000/Xxxx M
Compaq 5133 MMX/Robe
Xxxxxx Fax 3800
Chassis, Base T Conc
Max 4500T Server
Vax Station Adapter
Terminal, VT240
Dell P75/Xxx Xxxxx
Compaq DP 575/Xxxx Xxxxx
Compaq DP/Xxxxxxx Xxxxx
Compaq 386 I MEBES
Compaq DP I Supervisors' PC
Compaq MT 466 I Bay 2
HP LaserJet 4Plus/Prd Control
Compaq 433/Xxxxxx Xxxxx
52
SCHEDULE 2.1(a)(ii) Cleanroom Fixtures and Improvements
being purchased by Buyer
Recirc. CHW/CW Pumps (11)
Air Handling Xxxx 00 & 00
Xxx Xxxxxxxx Xxxx 00 & 11
Air Handling Xxxx 00, 00, 00 & 00 (Xxxx)
XXXX Upgrade
Hood Duct Filter System
Processing Piping System
DDC System Progrss
EPE Power Block 3OKVA
Clean Room Flooring
Doors I Walls/Ceiling
Particle Meas. System (Less Facility View Software)
Under Raised Floor Fire Alarm (Vesda)
53
SCHEDULE 2.1(a)(iii) Fixtures and Improvements attached to the Real Property
being purchased by Buyer
Cooling Tower
Cooling Tower Pumps (2)
Cooling Tower Base
Chiller Plant Upgrades (1997)
Scrubber/Exhaust System
Generator/Fuel System
54
SCHEDULE 2.1(a)(iv) Inventory and Raw Materials being purchased by Buyer
Item Est. Value
Raw Material - Photomask Blanks & Pellicles $226,000
Work-in-Progress (WIP) $15,000
Finished Goods
Chemicals $14,000
Mask Boxes $25,000
Equipment Spare Parts (see list below) $103,000
On-site Equipment Maintenance Spares
New parts:
QC Optics
------------------------------------------------------------------
Microscope Div. Bd. $1,600.00
------------------------------------------------------------------
DMABD $ 825.00
L/OBd.A $1,150.00
Analog Bd. $4,250.00
Sensor, Hammatsu $ 880.00
PMT Tube $ 550.00
Motor 22N $ 300.00
Motor M1616C $ 340.00
Laser, Pellicle $ 580.00
Misc. Parts $1,600.00
Ultra-Tech Plate Cleaner
Pump, High Pressure $2,000.00
Xxxxxx-Xxxx System
DCM-UC $2,700.00
DCM-GPC $2,640.00
MSC-AC $ 550.00
MSC-PO $ 286.00
MSC-P1504 $ 450.00
DMSA-848 $ 650.00
DMSA-849 $ 610.00
DMSA-850 $ 400.00
MSC-U1000 $1,770.00
DCM-1OC $3,200.00
Misc. Parts $1,400.00
55
SCHEDULE 2.1(a)(iv) Inventory and Raw Materials being purchased by Buyer
(continued)
On-site Equipment Maintenance Spares - continued
-----------------------------------------------------------------------------
Used Parts
-----------------------------------------------------------------------------
QC Optics
Laser, Argon $9,350.00
Laser Power Sup. $3,375.00
Ultra-Tech Plate Cleaner
Pump, High Pressure $1,500.00
Misc. Parts $4,000.00
-----------------------------------------------------------------------------
MEBES
-----------------------------------------------------------------------------
H-P 8V Power Sup. $1,200.00
M-III
EBC $81200.00
M-III
Vacuum System Cntrl $1,100.00
M-III
Stage Cntrl Interface $1,200.00
M-III Electron Source Cntrl $1,400.00
CVI Cryo-pump $6,000.00
M-III Column Electronic P.S. $1,100.00
V-80 Plotter (2) $2,600.00
LaB6 Gun $4,200.00
Misc. Parts $8,900.00
KLA 100
Printer Circuit Bds. $3,200.00
DRS-I & II
Misc. parts $5,000.00
APT Processor
Misc. parts $5,000.00
56
SCHEDULE 2.1(a)(iv) Inventory and Raw Materials being purchased by Buyer
(continued)
On-site Equipment Maintenance Spares - continued
-----------------------------------------------------------------------------
Tamarack Printer
-----------------------------------------------------------------------------
Misc. Parts $2,000.00
OSI/MPV Measuring Systems
Misc. Parts $2,500.00
-----------------------------------------------------------------------------
Nitrogen Booster System
-----------------------------------------------------------------------------
Xxxxxx Pump (4) $2,600.00
TOTAL $103,156.00
57
SCHEDULE 2.1(a)(v) Assumed Contracts
------------------------------------------------------------------------------------------------------------------------------------
Order Order Order Part
Div Dept Charge Vendor Date Number Status Number Description
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 9/4/97 230799 O 710627-999999 PELLICLE, ENGINEERING
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 9/4/97 230801 O 710627-999999 PELLICLE, ENGINEERING
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUSTRIAL 7/10/98 238430 O 710627-0103 PELLICLE, ASM
------------------------------------------------------------------------------------------------------------------------------------
R 1999 C10055 XXXXXX SCIENTIFIC CO. 7/14/98 238564 O 210549 DEVELOPER, AC-12350-2500
(250 ML)
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510055 XXXXXX SCIENT 7/14/98 238564 O 2104\549 DEVELOPER, AC-12350-2500
------------------------------------------------------------------------------------------------------------------------------------
R 1999 C10055 XXXXXXX SCIENTIFIC CO. 7/14/98 238565 O 210548 DEVELOPER, AC149660025
(.25 LI.)
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510055 XXXXXXX SCIENT 7/14/98 000000 X 000000 DEVELOPER, AC149660025
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 DUPONT PHOTOMASKS INC 7/24/98 238687 O 710627-999999 PELLICLE, ENGINEERING
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 DUPONT PHOTOMASKS INC 7/24/98 238688 O 710627-999999 PELLICLE, ENGINEERING
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUSTRIAL 10/21/98 240438 O 710627-0106 ASM17P-113-1015-H
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORPORATION USA 11/3/98 240644 O 710538-31603 5*5 .090-2UM-EHQ-AR-PBS-U
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORPORATION USA 11/2/98 240645 O 710538-61603 6*6 .250-2UM-EHQ-AR-PBS-U
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY INC 11/23/98 241105 O 710627-0503 PELLICLE, PE
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUSTRIAL 11/23/98 241106 O 710627-0602 PELLICLE, UT
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------
Original Invoiced Dollars
Dollars Dollars Available
------------------------------------
$8,000 $2,400 $5,600
------------------------------------
$8,000 $2,400 $5,600
------------------------------------
$250,000 $175,625 $74,375
------------------------------------
$26,569 $19,587 $6,982
------------------------------------
$26,569 $19,587 $6,982
------------------------------------
$53,059 $39,640 $13,419
------------------------------------
$53,060 $39,40 $13,420
------------------------------------
$54,000 $15,525 $38,475
------------------------------------
$54,000 $15,525 $38,475
------------------------------------
$112,000 $35,455 $76,545
------------------------------------
$424,000 $182,850 $241,150
------------------------------------
$727,650 $417,725 $309,925
------------------------------------
$60,000 $32,820 $27,180
------------------------------------
$35,500 $30,530 $4,970
------------------------------------
58
SCHEDULE 2.1(a)(v) Assumed Contracts (continued)
------------------------------------------------------------------------------------------------------------------------------------
Order Order Order Part
Div Dept Charge Vendor Date Number Status Number Description
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 DUPONT PHOTOMASKS INC 12/3/98 241296 O 710627-0307 PELLICLE:GN501G-5221H
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 DUPONT PHOTOMASKS INX 12/3/98 241297 O 710627-0306 PELLICLE:GN501P-5221H
------------------------------------------------------------------------------------------------------------------------------------
R 1999 C10055 VWR SCIENTIFIC PRODUCTS 2/3/99 241979 O 210062-031 CHEMICAL, CERIUM AMMONIUM
NITRATE
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORP 2/2/99 242092 O 710538-03000 4 4 .060-10UM-SLW-AR-1350
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORPORATION USA 2/2/99 242093 O 710538-32400 5 5 .090-5UM-QZ-AR-1350-S
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORP 2/2/99 242094 O 710538-32103 5X5 .090-5UM-WC-AR-PBS-U
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORPORATION USA 2/2/99 242095 O 710538-31501 5 5 .090-2UM-EQZ-AR-1350-U
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORP 2/2/99 242096 O 710538-33000 5 5 .090-10UM-SLW-AR-1350-S
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORP 2/2/99 242097 O 710538-53000 6 6 .120-10UM-SLW-AR-1350-S
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORPORATION USA 2/2/99 242098 O 710538-33200 5 5 .090-5UM-NA-AR-1350-S
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORP 2/2/99 242100 O 710538-31501 5 5 .090-2UM-EQZ-AR-1350-U
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 IMAGEX 2/5/99 242101 O 710538-11503 4 4 .090-2UM-EQZ-AR-PBS-U
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORP 2/2/99 242102 O 710538-11412 4 4 .090-2UM-QZ-CT-PBS-U
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORP 2/2/99 242103 O 710538-02103 4X4 .060-5UM-WC-AR-PBS-U
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 IMAGEX 2/5/99 242104 O 710538-01503 4X4 .060-2UM-EQZ-AR-PBS-U
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY INC 2/5/99 242105 O 710627-0204 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUST 2/5/99 242106 O 710627-0208 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUST 2/5/99 242107 O 710627-0207 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242108 O 710627-0206 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242109 O 710627-0205 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------
Original Invoiced Dollars
Dollars Dollars Available
---------------------------------------
$13,500 $12,825 $675
---------------------------------------
$13,500 $12,825 $675
---------------------------------------
$34,040 $15,183 $18,857
---------------------------------------
$1,300 $-- $1,300
---------------------------------------
$18,000 $7,200 $10,800
---------------------------------------
$8,700 $-- $8,700
---------------------------------------
$42,250 $2,600 $39,850
---------------------------------------
$2,600 $-- $2,600
---------------------------------------
$3,300 $-- $3,300
---------------------------------------
$155,000 $18,600 $136,400
---------------------------------------
$42,250 $-- $42,250
---------------------------------------
$12,000 $2,400 $9,600
---------------------------------------
$7,250 $-- $7,250
---------------------------------------
$6,300 $-- $6,300
---------------------------------------
$5,750 $-- $5,750
---------------------------------------
$49,500 $4,950 $44,550
---------------------------------------
$3,400 $-- $3,400
---------------------------------------
$5,600 $-- $5,600
---------------------------------------
$2,750 $-- $2,750
---------------------------------------
$2,750 $-- $2,750
---------------------------------------
59
SCHEDULE 2.1(a)(v) Assumed Contracts (continued)
------------------------------------------------------------------------------------------------------------------------------------
Order Order Order Part
Div Dept Charge Vendor Date Number Status Number Description
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242110 O 710627-0200 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUST 2/5/99 242111 O 710627-0301 PELLICLE, GCA
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUST 2/5/99 242112 O 710627-0001 PELLICLE, TRE
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242114 O 710627-0201 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242115 O 710627-0202 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUST 2/5/99 242116 O 710627-0209 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUST 2/5/99 242117 O 710627-0210 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUSTRIAL 2/5/99 242118 O 710627-0303 PELLICLE, GCA
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUSTRIAL 2/5/99 242119 O 710627-0304 PELLICLE, GCA
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUSTRIAL 2/5/99 242120 O 710627-0503 PELLICLE, GCA
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUST 2/5/99 242121 O 710627-0400 PELLICLE, NIK
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUST 2/5/99 242122 O 710627-0401 PELLICLE, NIK
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242123 O 710627-0402 PELLICLE, NIK
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242124 O 710627-0403 PELLICLE, NIK
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242125 O 710627-0500 PELLICLE, PE
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUST 2/5/99 242126 O 710627-0504 PELLICLE, PE
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUSTRIAL 2/5/99 242127 O 710627-0505 PELLICLE, PE
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242128 O 710627-0600 PELLICLE, UT
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY INC 2/5/99 242129 O 710627-0501 PELLICLE, PE
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 INKO INDUSTRIAL 2/5/99 242130 O 710627-0300 PELLICLE, GCA
------------------------------------------------------------------------------------------------------------------------------------
R 7160 510056 RTD EXPRESS 2/2/99 242266 O SERVICE SERVICE, SEE BELOW PLEASE
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORPORATION USA 2/2/99 242287 O 710538-E1503 7.25 .150-2UM-EQZ-AR-PBSU
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------
Original Invoiced Dollars
Dollars Dollars Available
---------------------------------------
$60,000 $8,700 $51,300
---------------------------------------
$64,000 $6,080 $57,920
---------------------------------------
$32,000 $-- $32,000
---------------------------------------
$48,000 $9,360 $38,640
---------------------------------------
$44,800 $3,540 $41,260
---------------------------------------
$3,500 $-- $3,500
---------------------------------------
$3,500 $00 $3,500
---------------------------------------
$9,600 $1,280 $8,320
---------------------------------------
$6,500 $3,250 $3,250
---------------------------------------
$6,500 $3,250 $3,250
---------------------------------------
$3,450 $-- $3,450
---------------------------------------
$3,450 $-- $3,450
---------------------------------------
$6,500 $1,950 $4,550
---------------------------------------
$6,500 $2,275 $4,225
---------------------------------------
$4,500 $600 $3,900
---------------------------------------
$11,550 $-- $11,550
---------------------------------------
$19,200 $1,280 $17,920
---------------------------------------
$3,100 $-- $3,100
---------------------------------------
$31,050 $8,775 $22,275
---------------------------------------
$30,500 $2,745 $27,755
---------------------------------------
$500 $115 $385
---------------------------------------
$520,000 $298,480 $221,520
---------------------------------------
60
SCHEDULE 2.1(a)(v) Assumed Contracts (continued)
------------------------------------------------------------------------------------------------------------------------------------
Order Order Order Part
Div Dept Charge Vendor Date Number Status Number Description
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 DUPONT PHOTOMASKS INC 2/11/99 242386 O 710627-0406 PELLICLE; N1522P-5211H
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 DUPONT PHOTOMASKS INC 2/11/99 242387 O 710627-0407 PELLICLE; N1522G-5211H
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 MICROLITHOGRAPHY INC 3/2/99 242728 O 710627-0203 PELLICLE, CANON
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 HOYA CORPORATION USA 3/24/99 243283 O 710538-51503 6 6 .120-2UM-EQZ-AR-PBSU
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 DUPONT PHOTOMASKS INC 3/30/99 243337 O 710627-0409 PELLICLE; N1609P-7043L
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 DUPONT PHOTOMASKS INC 3/30/99 243338 O 710627-0306 PELLICLE: GN501P-5221H
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510056 DUPONT PHOTOMASKS INC 3/30/99 243339 O 710627-0307 PELLICLE: GN501G-5221H
------------------------------------------------------------------------------------------------------------------------------------
R 7150 568550 INSTRUMENTATION 5/5/99 244192 O 00-00000-00 PRINTER HEAD, STYLUS 6470
SERVICES
------------------------------------------------------------------------------------------------------------------------------------
R 7140 568550 INTEGRATED SOFTWARE 5/7/99 244269 O SERVICE ON-TAP ALPHA DEPT. S
DESIGN INC 4000, 2100 SER. 5294A
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510054 ASHLAND CHEMICAL CO 5/17/99 244458 O 210062-017 ACETIC ACID, (4 X 9 LB. PER
CASE)
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510053 FLUOROWARE INCORPORATED 5/21/99 244552 O 215494-012 BOX FOR FINISHED PHOTOMASK-
PA'S H60-60-0615 WHT
------------------------------------------------------------------------------------------------------------------------------------
R 1999 510053 FLUOROWARE INCORPORATED 5/21/99 244553 O 215494-014 BOX FOR FINISHED PHOTO
------------------------------------------------------------------------------------------------------------------------------------
R 7120 568202 ZEPHYRHILLS WATER 2/10/99 252032 O 1 DRINKING WATER SYSTEM AND
BOTTLED WATER
------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------
Original Invoiced Dollars
Dollars Dollars Available
---------------------------------------
$14,500 $11,600 $2,900
----------------------------------------
$14,500 $9,425 $5,075
----------------------------------------
$81,000 $25,920 $55,080
----------------------------------------
$240,000 $52,000 $188,000
----------------------------------------
$94,000 $9,400 $84,600
----------------------------------------
$54,000 $8,100 $45,9900
----------------------------------------
$54,000 $7,425 $46,575
----------------------------------------
$220 $-- $220
----------------------------------------
$795 $-- $795
----------------------------------------
$799 $396 $403
----------------------------------------
$756 $378 $378
----------------------------------------
$4,310 $2,155 $2,155
----------------------------------------
$500 $243 $257
----------------------------------------
61
SCHEDULE 2.1(a)(vi) Prepaid Expenses
Software - Est. Value $4,000
62
SCHEDULE 2.1(a)(viii) Environmental Support Systems being purchased by Buyer
See Schedules 2.1(a)(i) - (a)(iii)
63
SCHEDULE 4.2(c) Material Adverse Changes since April 26, 1999
Considered a material change, but not adverse, is the sale of the Semiconductor
Business Unit by Xxxxxx Corporation to a subsidiary of Sterling Holding Company
LLC, a Citicorp Venture Capital, Ltd. Investment portfolio company on June 2,
1999.
64
SCHEDULE 4.3 Material Contracts
CONTRACTS > $25,000.00
SUPPLIER PURCHASE ORDER DESCRIPTION
-------- -------------- -----------
ETEC 0241795 MEBES Service
-------------------------------------------------------------------------------------------------
Nikon Precision 0243192 Service Agreement
-------------------------------------------------------------------------------------------------
Quantronix 0240600 Service Agreement
-------------------------------------------------------------------------------------------------
KLA 0228165 Service Agreement
-------------------------------------------------------------------------------------------------
Hoya Consignment Mask Blanks
-------------------------------------------------------------------------------------------------
Hoya 0242287 Blanks
-------------------------------------------------------------------------------------------------
Hoya 0240644 Blanks
-------------------------------------------------------------------------------------------------
Hoya 0240645 Blanks
-------------------------------------------------------------------------------------------------
Hoya 0243283 Blanks
-------------------------------------------------------------------------------------------------
Hoya 0242095 Blanks
-------------------------------------------------------------------------------------------------
Hoya 0242098 Blanks
-------------------------------------------------------------------------------------------------
MLI 0241105 Pellicle
-------------------------------------------------------------------------------------------------
MLI 0242728 Pellicle
-------------------------------------------------------------------------------------------------
MLI 0242105 Pellicle
-------------------------------------------------------------------------------------------------
MLI 0242110 Pellicle
-------------------------------------------------------------------------------------------------
MLI 0242114 Pellicle
-------------------------------------------------------------------------------------------------
MLI 0242115 Pellicle
-------------------------------------------------------------------------------------------------
Dupont Photomask 0238682 Pellicle
-------------------------------------------------------------------------------------------------
Dupont Photomask 0238687 Pellicle
-------------------------------------------------------------------------------------------------
Dupont Photomask 0238688 Pellicle
-------------------------------------------------------------------------------------------------
Dupont 0243337 Pellicle
-------------------------------------------------------------------------------------------------
Dupont 0243338 Pellicle
-------------------------------------------------------------------------------------------------
Dupont 0243339 Pellicle
-------------------------------------------------------------------------------------------------
INKO 0242130 Pellicle
-------------------------------------------------------------------------------------------------
INKO 0241106 Pellicle
-------------------------------------------------------------------------------------------------
INKO 0240438 Pellicle
-------------------------------------------------------------------------------------------------
INKO 0238430 Pellicle
-------------------------------------------------------------------------------------------------
INKO 0242111 Pellicle
-------------------------------------------------------------------------------------------------
Xxxxx Associates 0239986 Sales
-------------------------------------------------------------------------------------------------
65
SCHEDULE 4.4(a) Purchased Assets Without Good and Marketable Title
NONE
66
SCHEDULE 4.4(b) Exceptions to the Good Condition of Utility Delivery
Systems
Champ Air Compressors #3 & #4 are fully functional, but the Accumulator tanks
have external corrosion.
67
SCHEDULE 4.5 Tangible Property
NONE
68
SCHEDULE 4.6 Permits, Approvals and Consents to be Obtained by Seller
o Buyer will not be able to utilize Seller's U.S.E.P.A. ID# to ship any
hazardous waste generated by Buyer. Buyer may or may not be required to
obtain their own separate EPA ID# and must conduct their own
investigation to ascertain this requirement.
o Any Business License, registration, etc. required by the State of Florida,
Brevard County, or the City of Palm Bay.
o Additionally, that Permit as set forth in Schedule 4.8.
69
SCHEDULE 4.7 Orders and Actions in Excess of $10,000
o A potential claim by Lucent Technologies for the replacement of five mask
levels.
o A potential claim by Lockheed-Xxxxxx for the replacement of three mask
levels.
70
SCHEDULE 4.8 Permits Required but not Transferable to Buyer
The Seller's Florida Department of Environmental Protection (FDEP) Air Pollution
Permit for the Complex is being modified to exclude Building 60 emissions. Buyer
may or may not be required to obtain their own separate Air Pollution Permit,
and must conduct their own investigation to ascertain this requirement.
71
SCHEDULE 4.10(a) Employee Benefit Plans
1. 401(k) Plan which includes:
- Employee Contributions (Before and After Taxes up to a maximum of 12%
of annual salary)
- Company Matching (Dollar for dollar on first 6% of employees annual
salary)
- Company Profit Sharing
- Stock Purchase at 30% discount through 401k plan. Employees can elect
to have one percent of their deductions to purchase the stock.
2. Severance Pay
3. Variable Pay
4. Retiree Insurance
5. Employee Insurance Plans:
- Employee Life/Accidental Death and Supplemental
- Dependent Life
- Short Term Disability
- Long Term Disability
6. Medical Insurance (Employee or Family Plan)
- Major Medical
- Dental
- Vision
- Health Care Reimbursement Account Plan
- Dependent Care Reimbursement Account Plan
- Employee Assistance Program (EAP)
7. Agreements:
- Employee Agreement
- Conflict of Interest and Outside Activities Policy and Report
- Standards of Business Conduct
- Foreign Business Travel and Incoming Foreign National Visitors
8. Workers' Compensation
9. State Unemployment Insurance
10. Shift Differential
11. Annual Salary Plan (e.g., Promotions, adjustments and performance base pay
increases or Lump Sums and/or MBO's)
12. REFER Recruiting Program
13. Employee Recognition & Awards Programs:
- ZAP Award, Employee Excellence Award, Technical Excellence Award, Patent
Award Program, Golden Quill Program, Quality Awards, etc.
14. Educational Assistance
15. Employee Service Recognition Award
16. Sick/Personal Business Pay
17. Vacation Pay
18. Call-In Pay
19. Holiday Pay
20. Bereavement Pay
72
SCHEDULE 4.10(a) Employee Benefit Plans - continued
21. Jury Duty/Witness Pay
22. Special Pay (e.g., Loss time Pay in case of a Hurricane or some other type
of disaster)
23. Military Leave Pay
24. Non-exempt Overtime/Doubletime/Exempt Extra Time Pay
25. Area attractions employee discounts (e.g., Disney
World, Cypress Gardens, Universal, Sea World, etc.)
26. American Express Corporate Cards issued to employees
27. MCI Phone Card
28. Special rates for auto rentals/hotels established through Corporate Travel
29. Reimbursement for personal automobile expenses used for business purposes.
73
SCHEDULE 4.10(b) Employee Pension Benefit Plans
401(k) Plan which includes:
- Employee Contributions (Before and After Taxes up to a maximum of 12%
of annual salary)
- Company Matching (Dollar for dollar on first 6% of employees annual
salary)
- Company Profit Sharing
- Stock Purchase at 30% discount through 401k plan. Employees can elect
to have one percent of their deductions to purchase the stock.
74
SCHEDULE 4.14 Customers and Suppliers
Ten most significant suppliers
Hoya mask blanks
Imagex mask blanks
MLI pellicles
Inko pellicles
Cyantek chemicals
Ashland chemicals
Chemcentral chemicals
Xxxxxx chemicals
Fluorware mask boxes
Dynamic Micro Systems mask boxes
Sole Source suppliers of significant services
ETEC Systems Inc. Mebes service
KLA Tencor KLA services
QUANTRONIX DRS Iie services
NIKON Nikon 5i services
Largest Captive customers: (% is based upon internal transfer prices)
1. Xxxxxx Semi Palm Bay, FL 14.6%
2. Xxxxxx Semi Findlay, OH 10.6%
3. Xxxxxx Semi Mountaintop, PA 8.7%
Ten largest Merchant customers
1. VTC Incorporated 26.0%
2. Honeywell 16.6%
3. Eastman Kodak 4.6%
4. Sawtek, Incorporated 3.7%
5. Lucent Technologies Inc. 2.4%
6. National Security Agency 2.0%
7. Sandia Labs 1.9%
8. Digital Optics Corp. 0.9%
9. Photo Sciences Inc. 0.7%
10. Lockheed Xxxxxx Corp. 0.6%
The % of business following the company name is based upon July-Dec 1998 as
specified and are calculated on the total captive plus merchant sales dollars.
They make up 93.3% of the sales.
75
SCHEDULE 4.15(a) Environmental Reports
At the request of Xxxxxx' Corporate Environmental Legal Counsel, an
Environmental Audit was conducted during March 15-24, 1999, at the Semiconductor
facilities located in Palm Bay. The audit was conducted to assess environmental
compliance and to advise Semiconductor management where efforts should be
directed to improve the focus of environmental programs.
The scope of the audit included applicable federal, and state/local
environmental regulations; and management system controls required by Xxxxxx
Policy G-17. This report has been redacted to omit issues unrelated to B60.
Issues Related to B60:
Ensure that hazardous waste training requirements are met, including (40 CFR
265.16):
a) Maintaining a job title and a job description for each position
related to hazardous waste management and the name of each employee
filling such position; and
b) Conducting and documenting initial hazardous waste training and annual
refresher training to all employees with 90-day hazardous waste
duties.
Ensure that copies of land disposal restriction certifications are maintained
onsite and that copies accompany each hazardous waste shipment (40 CFR
268.7(a)(8)).
Ensure that the hazardous waste contingency plan includes a list of all
emergency equipment, physical descriptions, and their locations, (40 CFR
265.52).
Ensure that universal waste batteries and lamps are properly managed, including:
a) Providing awareness communication and training related to proper
handling and emergency procedures (40 CFR 273.16 and 62-737.400 FAC).
Ensure that the conditions of the underground injection control permit are being
met, in accordance with permit number UO05-215659, including:
a) Notifying FDEP of potential noncompliance with any permit limitation
(general condition 8); and
b) Providing all required information on all pages of the monthly
operating reports (specific condition (2)(b)(2)(f)).
Ensure that the April 11, 1997 Water Conservation Plan is updated and submitted
to SJRWMD in accordance with the consumptive use permit for ground water
(permit number 2-009-0032NM3R2, specific condition 19).
Ensure that DOT shipping papers are prepared correctly, including:
a) Indicating all hazardous materials (including nonhazardous and
universal wastes as such by checking the HM column (49 CFR 172.201);
and
b) Not using the word "waste" in the DOT shipping name for universal
wastes (40 CFR 273.52(b)).
76
SCHEDULE 4.15(b) Non-compliance with Environmental Permits
NONE
77
SCHEDULE 4.15(c) Environmental Conditions
(i) The entire Xxxxxx Semiconductor Palm Bay facility is Operable Unit 2
("OU2") of the Palm Bay NPL Site. Both the Florida Department of
Environmental Protection ("FDEP") and the U.S. Environmental Protection
Agency ("USEPA") have overseen investigation and remediation of this
facility, with USEPA taking the lead. On February 15, 1995, USEPA issued a
Record of Decision ("ROD") regarding OU2, identifying certain required
remediating and monitoring activities. Xxxxxx negotiated and signed a
Consent Decree and Scope of Work relating to implementation of the OU2 ROD.
That Consent Decree was filed in federal court on November 20, 1996; it was
entered by the federal district court on January 27, 1997. In 1999 Xxxxxx
received notification from USEPA of Construction Complete of the remedial
action. The five year review will occur in February 2000.
(ii) The Florida Department of Environmental Protection ("FDEP") conducted an
unannounced facility-wide RCRA compliance inspection at the Xxxxxx
Semiconductor Palm Bay facility on March 30, 1999. Xxxxxx has not received
a Notice of Violation, but FDEP identified some issues in the closing
meeting related to FDEP's paperwork review and physical inspection. Xxxxxx
has already resolved several items noted by FDEP and is preparing
aggressive plans to address the remaining items.
78
SCHEDULE 4.15(d) Lit of Hazardous Substances TSDF Sites Used in the Operation of
the Business; Amount of Hazardous Substances used
Treatment, storage and disposal facilities used for current operations at
building 60.
----------------------------------------------------------------------------------------------------------------------
*Quantity
Substance Per Year Vendor (TSDF) Transporter
----------------------------------------------------------------------------------------------------------------------
Sulfuric Acid 800 gal Heritage Environmental Services Heritage Transport
(16 drums) 0000 Xxxxxxx Xxxx
(Xxxxxxxxx) Xxxxxxxxx, XX 00000
phone # 0-000-000-0000
phone # 0-000-000-0000
contact person - Xxxxx
----------------------------------------------------------------------------------------------------------------------
Corrosive cleanup 100 gal Heritage Environmental Services Heritage Transport
(2 drums) 0000 Xxxxxxx Xxxx
(xxxxxx) Xxxxxxxxx, XX 00000
phone # 0-000-000-0000
phone # 0-000-000-0000
contact person - Xxxxx
----------------------------------------------------------------------------------------------------------------------
Flammable cleanup 100 gal Heritage Environmental Services Heritage Transport
(2 drums) 0000 Xxxxxxx Xxxx
(xxxxxx) Xxxxxxxxx, XX 00000
phone # 0-000-000-0000
phone # 0-000-000-0000
contact person - Xxxxx
----------------------------------------------------------------------------------------------------------------------
Mixed Solvents 600 gal Safety-Kleen Safety-Kleen (TG) Inc.
(12 drums) 000 Xxxxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000-0000
phone # 0-000-000-0000
contact person - Xxxx phone # 0-000-000-0000
----------------------------------------------------------------------------------------------------------------------
Used Oil 100 gal Safety-Kleen Safety-Kleen (TG) Inc.
(2 drums) 000 Xxxxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000-0000
phone # 0-000-000-0000
contact person - Xxxx phone # 0-000-000-0000
----------------------------------------------------------------------------------------------------------------------
79
SCHEDULE 4.15(d) Lit of Hazardous Substances TSDF Sites Used in the Operation of
the Business; Amount of Hazardous Substances used - CONTINUED
Treatment, storage and disposal facilities used for current operations at
building 60.
----------------------------------------------------------------------------------------------------------------------
*Quantity
Substance Per Year Vendor (TSDF) Transporter
----------------------------------------------------------------------------------------------------------------------
Oil filters one 55 gal drum Solid Waste Technologies Intersol Inc.
000 Xxxxx Xxx 0000-X Xxxx Xxxxxx Xxx
(Xxxxxxxxx) Xxxxxxxx, XX 00000 Xxxxx, XX 00000
phone # 0-000-000-0000 phone # 0-000-000-0000
----------------------------------------------------------------------------------------------------------------------
Fluorescent lamps **200 lamps Mercury Technologies A.E.T.S.
(MTI)
(4 foot tubes) 0000-X Xxxxxxx Xx.
Xxxx Xxxxxxxxx, XX 00000
phone # 0-000-000-0000 phone # 0-000-000-0000
contact person - Xxxxxx
----------------------------------------------------------------------------------------------------------------------
Labpacks One 00 xxx xxxx Xxxxxx-Xxxxx Xxxxxx-Xxxxx (XX) Inc.
000 Xxxxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, XX 00000-0000
phone # 0-000-000-0000
contact person - Xxxx phone # 0-000-000-0000
----------------------------------------------------------------------------------------------------------------------
* Wastestreams have previously been consolidated and stored with site
wastes. (quantities are approximations)
** Records on lamp replacement are not available, this is an estimate.
80
SCHEDULE 4.16 Powers of Attorney given by Seller
NONE
81
SCHEDULE 4.17 Y2K Readiness Issues
KLA70
Particle Monitoring System (Seller to remedy)
82
SCHEDULE 4.18 Unfair Labor Practice Charges against Seller
NONE
83
SCHEDULE 5.6 Government Authorizations Required to be Obtained by Buyer
TO BE PROVIDED BY ALIGN-RITE
84
SCHEDULE 6.3(e) Unusual Salary Actions
NONE
85
SCHEDULE 7.4(a) Excluded Employees
Xxxxxxx X. Xxxxx
86
SCHEDULE 7.4(d) Flex Holiday Hours
AVAIL. AVAIL.
see HOURLY HOURS HOURS EARNED EARNED
NAME TITLE note RATE VACATION HOLIDAY VACATION HOLIDAY
---- ----- ----- -------- ------- -------- -------
XXXX, XXXXXX R Fab Tech IV $11.13 85.48 -- $ 951.39 $ --
XXXXXXX, XXXXX R Fab Tech IV $13.44 16.00 -- $ 215.04 $ --
BOX, XXXXXXX L Fab Tech IV $13.68 38.50 8.00 $ 526.68 $ 109.44
XXXXXX, XXXXX Maintenance $6.24 47.74 32.00 $ 297.90 $ 199.68
Worker
XXXXXX, XXXX XX Electronic $21.42 158.82 48.00 $ 3,401.92 $ 1,028.16
Tech Spec.
XXXXX, XXXX Y Fab Tech IV $12.77 97.00 40.00 $ 1,238.69 $ 510.80
XXXXXX, XXXXX N Fab Tech III $10.30 26.00 43.00 $ 267.80 442.90
XXXXXX, XXXXX X Production $20.60 290.00 48.00 $ 5,974.00 $ 988.80
Sup. - Sr.
XXXXXXX, XXXXXXX A Assy. Tech IV $11.25 66.50 56.00 $ 748.13 $ 630.00
XXXXXX, XXXXX A Fab Tech IV * $11.37 13.39 0.50 $ 152.24 $ 5.69
XXXXXXXXX, XXXXX L Fab Tech IV $15.70 89.00 19.00 $ 1,397.30 $ 298.30
XXXXXXXXX, XXXXX M Fab Tech IV $10.71 16.41 24.00 $ 175.75 $ 257.04
XXXXX, XXXXXXXXX A Dir./Dept. $12.08 60.25 40.00 $ 727.82 $ 483.20
Secretary
XXXXX, XXXXXX XXX Fab Tech IV $11.91 104.48 48.00 $ 1,244.36 $ 571.68
XXXXXXX, XXXXXX X Fab Tech III $10.00 19.40 8.50 $ 194.00 $ 85.00
XXXXXX, XXXXXXX P III Mfg. $28.72 105.41 56.00 $ 3,027.38 $ 1,608.32
Engineer -
Lead
XXXX, XXXXXXX C Fab Tech III $9.99 33.74 39.00 $ 337.06 $ 389.61
XXXXXX, XXXXX L Fab Tech IV * $12.43 15.41 26.00 $ 191.55 $ 323.18
XXXXX, XXXXX X Fab Tech III * $9.21 11.91 1.50 $ 109.69 $ 13.82
XXXXX, XXXXXXXXX A Fab Tech V $13.48 123.32 43.00 $ 1,662.35 $ 579.64
XXX, XXXXX M Fab Tech VI $18.45 116.00 48.00 $ 2,140.20 $ 885.60
XXXXXXXXXXX, XXXX E Electronic $21.02 85.00 56.00 $ 1,786.70 $ 1,177.12
Tech Spec.
XXXXXX, XXXXXXX X XX Prod. Sup. - $20.74 368.81 8.00 $ 7,649.12 $ 165.92
Lead
XXXXXX, XXXXX X Fab Tech IV $11.55 114.82 40.00 $ 1,326.17 $ 462.00
XXXXXX, XXXXXX X Eng. Spec. - $18.47 160.00 8.00 $ 2,955.20 $ 147.76
Mask - Sr.
XXXXX, XXXXXX A Mfg. $39.23 346.08 -- $ 13,576.72 $ --
Engineer -
Sr. Princ.
XXXXXXXXXX, XXXXX S Mfg. $26.76 280.82 44.00 $ 7,514.74 $ 1,177.44
Engineer -
Staff
MINE, RAEBETH Fab Tech III $9.25 60.00 8.00 $ 555.00 $ 74.00
--------------
Note: *indicates remaining holiday hours out of 80 hours
87
SCHEDULE 7.4(d) Flex Holiday Hours - continued
AVAIL. AVAIL.
see HOURLY HOURS HOURS EARNED EARNED
NAME TITLE note RATE VACATION HOLIDAY VACATION HOLIDAY
---- ----- ---- -------- ------- -------- -------
XXXXXXXX, XXXXXX X Fab Tech V $15.60 162.82 3.00 $ 2,539.99 $ 46.80
XXXXXXX, XXXXX X Mfg. $30.48 233.38 9.00 $ 7,113.42 $ 274.32
Engineer -
Staff
XXXXX, XXXXXXXXX M Fab Tech IV $11.70 127.00 48.00 $ 1,485.90 $ 561.60
XXXXXXXXX, XXXXX S Fab Tech V $13.73 92.50 56.00 $ 1,270.03 $ 768.88
XXXXXXXXX, XXXX A Fab Tech III $9.08 22.65 5.00 $ 205.66 $ 45.40
XXXXXXXX, XXXXX L Fab Tech IV $12.66 92.41 52.00 $ 1,169.91 $ 658.32
XXXXX, XXXX H Fab Tech V $14.38 103.06 56.00 $ 1,482.00 $ 805.28
XXXXXXXXXX, XXXXXXXX C Production $15.14 28.74 -- $ 435.12 $ --
Sup.
XXXXX, XXXXXX M Fab Tech IV $11.13 19.74 19.50 $ 219.71 $ 217.04
XXXXXXXX, XXXXXXX X Fab Tech V $14.37 193.41 48.00 $ 2,779.30 $ 689.76
XXXXXXXXX, XXXXXX Fab Tech III * $9.75 34.00 2.00 $ 331.50 $ 19.50
ROLA, MUKESH N Fab Tech IV * $12.45 20.41 -- $ 254.10 $ --
XXXX, XXXXXXX R Fab Tech III $10.03 79.41 40.00 $ 796.48 $ 401.20
XXXXXX, XXXXXX M Production $18.68 220.82 -- $ 4,124.92 $ --
Sup. - Sr.
XXXXXXXXX, XXXXXXXX M Fab Tech VI $16.62 290.00 45.00 $ 4,819.80 $ 747.90
XXXXXX, XXXXX A Fab Tech III $10.28 -- 6.00 $ -- $ 61.68
XXXX, XXXXXX D Fab Tech VI $15.85 3.50 -- $ 55.48 $ --
XXXXXX, XXXXXX A Customer $8.10 40.02 32.00 $ 324.16 $ 259.20
Svc. Coord.
XXXXXXX, XXXXXXX M Software $41.83 226.82 36.00 $ 9,487.88 $ 1,505.88
Eng. - Sr.
Princ.
XXXXXXXXXX, XXXXXX G Fab Tech IV $13.17 185.00 56.00 $ 2,436.45 $ 737.52
XXXXXXXX, XXXXX B Process Eng. $34.65 174.00 4.00 $ 6,029.10 $ 138.60
- Staff
XXXXXX, XXXXXX X Fab Tech IV $10.75 64.28 -- $ 691.01 $ --
XXXX, XXXXXX J Fab Tech V $14.76 46.82 47.00 $ 691.06 $ 693.72
XXXXXXXX, XXXXX D Fab Tech V $15.54 129.32 25.00 $ 2,009.63 $ 396.27
XXXXXXXX, XXXX A Fab Tech IV $12.17 108.94 4.00 $ 1,325.80 $ 48.68
XXXXXXX, XXXXX S Equip. $12.10 53.41 27.00 $ 646.26 $ 326.70
Maint. Tech
XXXXX, XXXXXXX D Fab Tech III $9.36 12.00 2.00 $ 112.32 $ 18.72
XXXXXXXX, XXXXX J Fab Tech IV $11.74 48.41 20.00 $ 568.33 $ 234.80
TOTAL 5,763.16 1,435.50 $113,750.24 $ 22,272.86
-----------------
Note: *indicates remaining holiday hours out of 80 hours
88
SCHEDULE 7.5(a)(iii) List of Software Type 1 (being Assigned to Buyer)
Note: The following software applications may require separate operating system
platforms in order to run the software (e.g., Microsoft Access). The purchase of
said platforms is not contemplated by this Agreement, nor are the platforms
being assigned or transferred to Align-Rite.
PGPOST
XXXXX
MDECK
EYORE
TABBY
MNET
MICE II
XXXX
XXXX AND SHIP
CASPER
PERF EVAL
JSURVEY
LABELING
HITG Web Sites
Customer Web Sites
89
SCHEDULE 7.5(a)(iv) List of Software Type 2
(Non-Exclusive License granted to Buyer)
On Line SPC
Xxx Xxxx
90
SCHEDULE 7.5(b) Software Licenses Assigned to Buyer to the
extent Assignable by Seller
Kea!
Adobe Acrobat 3.0
Corel PhotoPaint
PowerBuilder 6.0
Visio
Visual C++
FrontPage98
Microsoft Developer
Wave Star 1.1.2
Pocket Logger
FedEx Shipping
Harvard Graphics 3.05
LabelWorks 2.0
Lotus 1-2-3, v3.1
Microsoft Liquid Motion
Omni Page (OCR software)
Paradox 4.0
Paradox 4.5
PGP 5.5 for Enterprise Security
ProComm Plus
Quick Books 4.0.2
Telemoney PC Batch 2.2 (VISA)
CATS GRAPHICS
CATS FRACTURE
VMS 5.5-2 OS
VMS 5.4 OS
VMS 6.2 OS
Solaris Unix 2.5.1 OS
Sun 4.1.4 OS
91
SCHEDULE 7.6(a) All Software Licenses used in or on
behalf of the Photomask Business
Facility View
Standard Client (Windows 95/NT, MS Office 97 Pro, Outlook, I.E., Onnet, McAfee)
Kea!
Adobe Acrobat 3.0
Corel PhotoPaint
PowerBuilder 6.0
Visio
Hub/Docs: Exceed 6.1
L-View Pro 2.0
WinZip
Visual Basic 5.0
Visual C++
Project
FrontPage98
Microsoft Developer
Wave Star 1.1.2
Pocket Logger
Perl
FedEx Shipping
Harvard Graphics 3.05
LabelWorks 2.0
Lotus 1-2-3, v3.1
Microsoft Liquid Motion
Omni Page (OCR software)
Paradox 4.0
Paradox 4.5
PGP 5.5 for Enterprise Security
ProComm Plus
Quick Books 4.0.2
Telemoney PC Batch 2.2 (VISA)
Cobol
Ontap
JSS
DECset
CDD/DBMS
DECForms
Diskeeper
Multinet
Pascal
DEC C
FMS
RS 1
Robomon
92
SCHEDULE 7.6(a) All Software Licenses used in or on behalf of the
Photomask Business (continued)
SLS
PGPOST
XXXXX
MDECK
EYORE
TABBY
CATS GRAPHICS
CATS FRACTURE
MNET
MICE II
XXXX INGRESS
XXXX AND SHIP
CASPER
PERF EVAL
CONNX
JSURVEY
PGP UNIX ENCRYP
LABELING
UCX TCP/IP
VMS 5.5-2 OS
VMS 5.4 OS
VMS 6.2 OS
VAX Watcher
VAX DW-MOTIF
Consilium Workstream
On Line SPC
Xxx Xxxx
HITG Web Site
Customer Web Sites
Solaris Unix 2.5.1 OS
Sun 4.1.4 OS
93
SCHEDULE 8.2(f) Key Employees
Xxxxxx, Xxxxx
Xxxxxx, Xxx
Xxx, Xxxxx
Xxxxxxxxxxx, Xxxx
Xxxxxx, Xxxxxx
Xxxxx, Xxxxxx
Xxxxxxxxxx, Xxxxx
Xxxxxxxx, Xxxxxx
Xxxxxxx, Xxxxx
Xxxxxxxx, Xxxxx
94
Exhibit A
[Form of]
Xxxx of Sale
THIS XXXX OF SALE AND ASSIGNMENT is effective as of July 2, 1999 by Xxxxxx
Corporation, a Delaware corporation ("Seller"), acting through its Semiconductor
Business Unit, in favor of Align-Rite International, Inc., a California
corporation ("Parent") and Align-Rite, Inc., a Florida corporation ("Sub," and
together with Parent, "Buyer").
WITNESSETH
WHEREAS, pursuant to that certain Asset Purchase Agreement, dated as of July 2,
1999 (the "Asset Purchase Agreement"), by and among Buyer and Seller, Seller
agreed to sell to Buyer and Buyer agreed to purchase from Seller certain of the
assets of Seller.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged and intending to be legally bound hereby, the
parties hereto agree as follows:
Definitions. As used in this Xxxx of Sale and Assignment and the Schedules
attached to this Xxxx of Sale and Assignment, the following definitions shall
apply:
"Business Technology" means Technology owned by Seller and in the possession of
the Photomask Business as of the Closing Date that is specific to operation of
the Photomask Business. Business Technology does not include Seller's Product
Mask Information.
"Closing" means the consummation of the transactions contemplated by the Asset
Purchase Agreement.
"Closing Date" means the date of the Closing.
"Contract" means any agreement, arrangement, bond, commitment, franchise,
indemnity, indenture, instrument, lease, license or understanding, whether or
not in writing.
"Copyrights" means rights in any and all United States and foreign copyright
registrations and applications therefor and unregistered copyrights owned by
Seller.
"Goodwill" means the expectation of patronage from customers of the Photomask
Business and the consumer identification and favorable consideration shown by
customers of the Photomask Business to the goods or services known to emminate
from the Photomask Business.
"Xxxxxx Patents" means and refers to all Patents owned by Xxxxxx as of the
Closing Date and covering activities performed in the course of business by the
Photomask Business prior to the Closing Date.
"Intangible Property" means any permits or other property other than personal
property, real property or Intellectual Property used in or pertaining to the
Photomask Business.
"Intellectual Property" means intellectual property covered by Copyrights,
Xxxxxx Patents or Trade Secret Rights as defined herein.
"Intellectual Property Rights" means rights in Copyrights and Xxxxxx Patents and
Trade Secret Rights which (a) are owned by the Seller, (b) exist under laws
respecting Patents, Copyrights or Trade secrets, but not trademarks and (c)
cover the use of Business Technology.
"Inventory" has the meaning specified in Section 2.1(a)(iv) of the Asset
Purchase Agreement.
"Material Contract" means any Contract material to the Photomask Business as of
or after the effective date of the Asset Purchase Agreement as described in
Schedule 4.3 of the Asset Purchase Agreement.
"Patents" means issued patents, including United States and foreign patents and
applications therefor, xxxxx patents, patents of importation, and divisions,
reissues, continuations, continuations-in-part, renewals and extensions of any
of the foregoing; certificates of addition and utility models and utility model
applications; but does not include License Agreements.
"Photomask Business" means the manufacture and sale of photomask products and
related photomask services by Seller regardless of the name under which any such
activity is conducted, and shall be deemed to include the Purchased Assets, the
rights and assets transferred pursuant to Section 7.5 of the Asset Purchase
Agreement, revenues and income, Assumed Liabilities, Assumed Contracts,
exclusive of cash, cash equivalents, accounts receivable, accounts payable and
any elements of the Retained Business or Excluded Assets.
"Real Property" means the real property located within the complex of buildings
known as the Semiconductor Sector located at 0000 Xxxx Xxx Xxxx, XX, Xxxx Xxx,
Xxxxxxx 00000 and known as Building 60 and a portion of Building 56 used in the
Photomask Business, appurtenances thereto, rights in connection therewith, and
the leasehold estates created as part of the transaction contemplated by the
Asset Purchase Agreement.
"Seller's Product Mask Information" means the product design data of Seller for
products designed or manufactured by or on behalf of Seller's Semiconductor
Business Unit from which photomasks are made, whether such data is in electronic
pattern media or Photomask tooling, and not otherwise used in the operation of
the Photomask Business.
"Site Services Agreement" has the meaning set forth in Section 8.2 of the Asset
Purchase Agreement.
"Software" means the manifestation of computer programs and databases in
tangible or physical form, including, but not limited to magnetic media,
firmware, and documentation in the form of source code, object code or
microcode; Software includes, but is not limited to management information
systems, computer aided design and/or engineering programs, computer aided
manufacturing programs, CADBUS programs, machinery control programs, and
personal computer programs, in each case that is owned by or licensed to Seller
and relevant to the Photomask Business. Software does not include any Technology
or any Intangible Property Rights.
"Software Licenses" means agreements concerning Software (other than Systems
Software) used in or on behalf of the Photomask Business including the
agreements identified on Schedule 7.6 attached hereto.
"Software Type 1" means Software for which the Seller is sole owner of all right
title and interest and which is specific to the Photomask Business. Software
Type 1 does not include Systems Software.
"Software Type 2" means Software owned in whole or in part by the Seller and
licensable by Seller on a non-exclusive basis to Buyer, and which is not
specific to, but is used in, the operations of the Photomask Business. Software
Type 2 does not include Systems Software.
"Systems Software" means software not specific to the Photomask Business and not
specific to an individual personal computer.
"Technology" means the manifestation in tangible or physical form of all types
of technical information and data including, but not limited to, know-how;
product definitions and designs; research and development, engineering,
manufacturing, assembly, process, test, quality control, procurement, and
service specifications, procedures, standards, and reports; maskworks;
blueprints; drawings; materials specifications, procedures, standards, and
lists; catalogs; technical information and data relating to marketing and sales
activity; and formulae, in each case that is owned by or licensed to Seller and
relevant to routine operation of the Photomask Business. Technology does not
include any Software or any Intangible Property Rights.
All capitalized terms used herein, but not otherwise defined herein, shall have
the meanings ascribed in the Asset Purchase Agreement.
Transfer. Seller hereby sells, conveys, assigns, transfers and delivers to Sub,
and Sub shall purchase, acquire and accept from Seller, Seller's right, title
and interest in and to the assets specifically described in Section 2.1 (a) of
the Asset Purchase Agreement (the "Purchased Assets") and as set forth below:
All machinery, tools, supplies, apparatus, furniture and fixtures, supplies, and
computer hardware located at and used solely by the Photomask Business and other
equipment of every type as identified on Schedule 2.1(a)(i) attached hereto;
The cleanroom located within Building 60, including fixtures and improvements
attached thereto as set forth on Schedule 2.1(a)(ii) attached hereto;
All other fixtures and improvements attached to the Real Property used primarily
in connection with the Photomask Business as specified in Schedule 2. 1(a)(iii)
attached hereto;
All inventory of usable goods, including all merchandise, photomasks, raw
materials, work in progress, finished products and other tangible personal
property held for sale or used in connection with the Photomask Business as of
the Closing Date (the "Inventory"), together with any additions thereto and
subject to any reductions therefrom received or incurred by Seller in operating
the Photomask Business in the ordinary course and in compliance with Section 6.3
of the Asset Purchase Agreement through the Closing Date all as set forth in
Schedule 2.1(a)(iv) attached hereto;
All of Seller's rights and interests arising under or in connection with the
Contracts to which Seller is a party specified on Schedule 2. 1(a)(v) attached
hereto and which Buyer assumes (the "Assumed Contracts") including but not
limited to obligations to complete work on order from customers; provided,
however, that except as otherwise specified in the Asset Purchase Agreement,
Buyer shall not assume any of the obligations or liabilities of the Assumed
Contracts arising prior to the Closing or based on actions or inactions of
Seller prior to the Closing;
Prepaid expenses and deposits as of the Closing Date (the "Prepaid Expenses") as
set forth in Schedule 2.1(a)(vi) attached hereto, together with any additions
thereto and subject to any reductions therefrom made or accrued by Seller in
operating the Photomask Business in the ordinary course and in compliance with
Section 6.3 of the Asset Purchase Agreement after the Closing Date;
Sales data and information, customer lists, information relating to customers,
suppliers' names, catalogs, sales literature, promotional materials, advertising
matter and all rights thereto relating specifically to the Photomask Business;
Intangible Property; the Goodwill associated with the Photomask Business; all of
Seller's books, records, files, documents, pay history papers and agreements
(including, but not limited to, those contained in computerized storage media)
used solely in the Photomask Business and related to its employees, except for
those employee records consisting of field folders, medical records and former
employee actions brought against the Seller, which actions have been settled or
adjudicated and the order of the court performed; all transferable Permits used
in the Photomask Business; unemployment compensation, workers' compensation and
other credits, reserves or deposits with applicable Governmental Entities
relating to Seller's employees of the Photomask Business who become Employees of
Buyer. Excluded Assets.
The Purchased Assets do not include the assets set forth below (the "Excluded
Assets"): No rights, properties or assets of Seller shall be included in the
Purchased Assets except to the extent specified in Section 2.1 (a) of the Asset
Purchase Agreement. As an example, no cash, receivables or Contracts not
expressly assumed hereunder by the Buyer are included as Purchased Assets. Buyer
shall not acquire under the terms of the Asset Purchase Agreement any title to
or interest in the name "Xxxxxx" or "Xxxxxx Semiconductor" or Seller's
monograms, logos, trademarks, or any variations or combinations thereof or
Seller's Product Mask Information. Buyer, however, shall be entitled to use all
of Seller's Product Mask Information solely for the purpose of making Photomasks
for Seller. Buyer shall use reasonable care in storing and maintaining Seller's
Product Mask Information. Seller acknowledges that Seller's Product Mask
Information is Seller's property and that Buyer shall have no liability for
damages or loss related thereto; provided, however, that Buyer shall be liable
for damages arising from Buyer's negligence or willful misconduct.
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale and Assignment to be
executed as of the day and year first above written.
XXXXXX CORPORATION,
a Delaware corporation
By:
-------------------------------------------
X.X. Xxxxxx
Vice President - General Manager Operations
Schedule 2.1(a)(i)
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools, and Computer
Hardware being purchased by Buyer - Continued
FIXED ASSETS P11 FY'99
BUILDING 60 - SORTED BY ASSET NUMBER
------------------------------------------------------------------------------
BLDG. ASSET NUMBER DIV DEPT ASSET DESCRIPTION
------------------------------------------------------------------------------
60 792031B OR 9460 STEAM HUMIDIFIER ORF
------------------------------------------------------------------------------
60 900111A OR 7150 APPLE LASERWRITER
------------------------------------------------------------------------------
60 908790F OR 7140 ETHERNET
------------------------------------------------------------------------------
60 913351B OR 7120 SOFTWARE, DBCS, CALMA
------------------------------------------------------------------------------
60 913489A OR 7140 CHAMBER, GCA, PBS
------------------------------------------------------------------------------
60 913489B OR 7140 INSTALL, CHAMBER, GC
------------------------------------------------------------------------------
60 913636B OR 7120 NIKON MEASURING INST
------------------------------------------------------------------------------
60 914496A OR 7120 HOTTANK, CORNING, VC
------------------------------------------------------------------------------
60 914536A OR 7120 REPAIR, QUANTRONICS I
------------------------------------------------------------------------------
60 914936A OR 7140 PROCESSOR, APT. 9155
------------------------------------------------------------------------------
60 915393A OR 7120 GRINDER XXXXXXX, LXUT
------------------------------------------------------------------------------
60 916177A OR 7120 INSPECT, HORIBA, P1000
------------------------------------------------------------------------------
60 916177B OR 7120 FREIGHT
------------------------------------------------------------------------------
60 916259A OR 7120 CHAMBER, HORIBA
------------------------------------------------------------------------------
60 916400A OR 7120 MOTORIZED IMAGE ROTA
------------------------------------------------------------------------------
60 916400B OR 7120 UPG FOR MEASURE UNIT
------------------------------------------------------------------------------
60 920918A OR 7120 MICRO LASER PARTICLE
------------------------------------------------------------------------------
60 930187A OR 7140 CD, OSI, VIDEO
------------------------------------------------------------------------------
60 930187B OR 7140 RETROFIT KIT, OSI CC
------------------------------------------------------------------------------
60 940719A OR 7120 ISOLATION, XXXXX, 219E
------------------------------------------------------------------------------
60 940758A OR 7120 CONTACT PRINTER
------------------------------------------------------------------------------
60 941637A OR 7120 INSPECT, XXX, 000X
------------------------------------------------------------------------------
60 941637B OR 7120 UPG TO RIA II
------------------------------------------------------------------------------
60 941637C OR 7120 7 X 7 MASK HOLDER
------------------------------------------------------------------------------
60 942964A OR 7120 PHOTOMASK CLEANER W/
------------------------------------------------------------------------------
60 952025A OR 7120 QC MASK INSPECT SYST
------------------------------------------------------------------------------
60 952301A OR 7120 PELLICLE MOUNTER
------------------------------------------------------------------------------
60 952981A OR 7120 NIKON 5i LASER MEASU
------------------------------------------------------------------------------
60 955104A OR 7140 TEKSCOPE
------------------------------------------------------------------------------
60 X00000000 OR 7140 MEBES, ETEC, M78
------------------------------------------------------------------------------
60 G10320078A OR 7140 REFURBISHED M78
------------------------------------------------------------------------------
60 G10320078C OR 7140 MEBES IV E-BEAM UPG
------------------------------------------------------------------------------
60 G10336548 OR 7140 MEBES, ETEC, M67
------------------------------------------------------------------------------
60 G10336548A OR 7140 ETHERNET
------------------------------------------------------------------------------
60 G10336572 OR 7150 AMPLIFIER SYSTEM
------------------------------------------------------------------------------
60 G10336580 OR 7140 AMPLIFIER, XXXXXX, N
------------------------------------------------------------------------------
60 X00000000 OR 7120 COMPARATOR, NIKON, 2
------------------------------------------------------------------------------
60 X00000000 OR 7120 INSPECT, KLA 101
------------------------------------------------------------------------------
60 G10336653 OR 7120 CHAMBER
------------------------------------------------------------------------------
60 G10336661 OR 7140 PROCESSOR, APT, 915
------------------------------------------------------------------------------
60 G10336679 OR 7140 PROCESSOR, APT, 915
------------------------------------------------------------------------------
60 G1354467A OR 7130 PRINTER, TAMRACK, 1
------------------------------------------------------------------------------
60 G1354558A OR 7130 PRINTER, TAMARACK, 1
------------------------------------------------------------------------------
60 G1354777A OR 7130 TITLER, TAMARACK, CP
------------------------------------------------------------------------------
60 G1354813A OR 7140 PROCESSOR, APT. 914
------------------------------------------------------------------------------
60 G1354975A OR 7130 PROCESSOR, APT, 914
------------------------------------------------------------------------------
60 G1355180A OR 7130 XXXXXXX, XXX, 0000
------------------------------------------------------------------------------
60 G1355182A OR 7140 PROCESSOR, APT, 914
------------------------------------------------------------------------------
60 G1355238A OR 7120 REPAIR, QUANTRONICS, I
------------------------------------------------------------------------------
60 G1355239A OR 7120 INSPECT, XXX, 000
------------------------------------------------------------------------------
60 G1355239B OR 7120 HOLDER, KLA 5X5X0.0
------------------------------------------------------------------------------
60 G1355261A OR 7120 CD, LEITZ, MPVCD#1
------------------------------------------------------------------------------
60 G1355366A OR 7140 PLOTTER, VERDATEC, M
------------------------------------------------------------------------------
60 G1355435A OR 7120 INSP. REP., KLA/QUANT
------------------------------------------------------------------------------
60 G1355435B OR 7120 PAY, FINAL DRSII/22
------------------------------------------------------------------------------
60 G1355435C OR 7120 KLA 204 CONVERSION K
------------------------------------------------------------------------------
60 G1355435D OR 7120 UPGRADE TO DRS-II
------------------------------------------------------------------------------
60 G1355465A OR 7120 COMPUTER, IBM
------------------------------------------------------------------------------
60 G1355549A OR 7120 CD, LETIZ, MPVCD#2
------------------------------------------------------------------------------
60 G1355605A OR 7130 SCOPE, B&L STEREO
------------------------------------------------------------------------------
60 G1355606A OR 7130 SCOPE, B&L STEREO
------------------------------------------------------------------------------
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools, and Computer
Hardware being purchased by Buyer - Continued
------------------------------------------------------------------------------
60 G1355615A OR 7140 SURFSCAN
------------------------------------------------------------------------------
60 G1355618A OR 7120 CD, LEITZ, MPVCD#3
------------------------------------------------------------------------------
60 G1355668A OR 7150 COMPUTER, TANDY, 200
------------------------------------------------------------------------------
60 G1355669A OR 7120 COMPUTER, TANDY, 300
------------------------------------------------------------------------------
60 G1355690A OR 7120 INSPECT, XXX, 000
------------------------------------------------------------------------------
60 G1610325A OR 7130 CLEANER, UT, 603
------------------------------------------------------------------------------
60 G1610326A OR 7120 CLEANER, UT, 603
------------------------------------------------------------------------------
60 G1610327A OR 7120 CLEANER, UT, 603
------------------------------------------------------------------------------
60 G1900053A OR 7140 SCOPE, LEITZ, ERGOLUX
------------------------------------------------------------------------------
60 G1900074A OR 7140 COMPRESSOR, CHAMP #3
------------------------------------------------------------------------------
60 G1900075A OR 7140 COMPRESSOR, CHAMP #4
------------------------------------------------------------------------------
60 G1900076A OR 7140 COMPRESSOR, CHAMP #1
------------------------------------------------------------------------------
60 G1900077A OR 7140 COMPRESSOR, CHAMP #2
------------------------------------------------------------------------------
60 G1900079A OR 7140 X0 XXXXXXX, XXXX, ET
------------------------------------------------------------------------------
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools, and Computer
Hardware being purchased by Buyer - continued
----------------------------------------------------------------------------
AR- Asset Bldg. Div. Dept. Description
TAG
---------------------------------------------------------------------------
79 No Tag 60 OR 7150 PT/HP 9-track tape/on Mask
---------------------------------------------------------------------------
80 No Tag 60 OR 0000 Xxxx Xxxxx tower/on Mask
---------------------------------------------------------------------------
81 60 CONTROL ROBERTSHAW
---------------------------------------------------------------------------
103 910205A 60 OR 7120 WETDECK, 4'
---------------------------------------------------------------------------
104 60 WETDECK 4'
---------------------------------------------------------------------------
104 906340A 60 OR 7130 WETDECK 5'
---------------------------------------------------------------------------
105 G10314794 60 INSPECT, KLA201, 106
---------------------------------------------------------------------------
106 903698A 60 OR 5450 PRINTER, XXX, 00
---------------------------------------------------------------------------
107 920086 60 TERMINAL, VT330
---------------------------------------------------------------------------
108 60 HCM 100D, PMN9193
---------------------------------------------------------------------------
112 913496A 60 OR 7120 CAMERA, NIKON, 21
---------------------------------------------------------------------------
114 012101 60 MICROSCOPE, M&M
---------------------------------------------------------------------------
115 911499A 60 OR 7140 SCOPE, LEITZ, SMLUX
---------------------------------------------------------------------------
121 906344A 60 OR 7130 WETDECK, 6'
---------------------------------------------------------------------------
121 906343A 60 OR 7130 WETDECK 6'
---------------------------------------------------------------------------
126 914325A 60 OR 7120 XXXXXXXXX, XXXXX, XXX, 00
---------------------------------------------------------------------------
127 SOM900110 60 PRINTER, XXX, 00
---------------------------------------------------------------------------
128 905979 60 PRINTER, DECWRITER II
---------------------------------------------------------------------------
131 906342A 60 OR 7140 WETDECK 4'
---------------------------------------------------------------------------
132 906341A 60 OR 7140 WETDECK 4'
---------------------------------------------------------------------------
135 916455 60 CD, OS12
---------------------------------------------------------------------------
136 907731A 60 OR 7140 PLASMA, LFE
---------------------------------------------------------------------------
136 907738A 60 OR 7140 PUMP, LFE, PLASMA
---------------------------------------------------------------------------
137 914183 60 CD, OS13
---------------------------------------------------------------------------
138 60 TABLE KINETIC
---------------------------------------------------------------------------
143 954255 60 PROCESSOR HME
---------------------------------------------------------------------------
145 905900A 60 OR 7130 PROCESSOR, APT, 914, EB ETCH
---------------------------------------------------------------------------
148 012468 60 OVEN, BLUE M
---------------------------------------------------------------------------
150 906338 60 WETDECK, 4'
---------------------------------------------------------------------------
153 X00000000 60 PRINTER, TAMARACK, 5"
---------------------------------------------------------------------------
154 SOM900014 60 CLEANER, UT, 603
---------------------------------------------------------------------------
155 913401A 60 OR 7120 METER OAI EXPOSURE
---------------------------------------------------------------------------
158 909101B 60 OR 7120 MASK HOLDER, XXX, 000
---------------------------------------------------------------------------
158 909101A 60 OR 7120 INSPECT, XXX, 000
---------------------------------------------------------------------------
162 60 7120 MEBES LOADER -M78
---------------------------------------------------------------------------
164 G10269195 60 TITLER, TAMARACK, 153
---------------------------------------------------------------------------
167 914970 60 XXXXXXX, XX, 0000
---------------------------------------------------------------------------
168 913179 60 OVEN, BLUE M
---------------------------------------------------------------------------
169 G619932430 60 COMPARATOR, NIKON, CM6
---------------------------------------------------------------------------
170 906339A 60 OR 7130 WETDECK 4'
---------------------------------------------------------------------------
171 012463 60 INSPECT, CODE A, 012565
---------------------------------------------------------------------------
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools, and Computer
Hardware being purchased by Buyer - continued
MECHANICAL AND ELECTRICAL ROOM
Compressed Air Dryer (2)
Piping
Central Chiller (L96)
Central Chiller (L92)
Emergency Chiller
Chilled Water Pump (2)
Refrigerant Monitor
Steam Humidifier (AHU 1,2,3,4)
Boiler-Steam
Air Handlers (1,2,3,4, 5)
Air Handlers (6, 7)
Chillers Controls (CSI)
Vacuum Pump
DI Wafer Pumps/Filters
Exide Sys. 150
Installation Charges
Electrical Upgrade (1991)
MCC Model 5 Control
Elec. Switch Gears
Basic Lite Fixtures
VAX HARDWARE ASSETS
Xxxxxx Alias Model/Device
------------ ------------
Vmsy2K VAX 4000 - 700 (128m of memory)
Chetah Alpha Server 2100
Mask Microvax 3800
Tiger/Xxxxx Microvax 3100
Jaguar VAXstation 3100
Cougar/Lynx VAXstation 4000-60
Lion/Puma DECstation 3000-300X
HSSDEV ATL4/52 DLT Tape Silo
HSSDEV RZ28 2.L GB SCSI Disk
HSSDEV RZ29 4.3 GB SCSI Disk
HSSDEV BA350-JA SCSI Storage Shelf
HSSDEV TKZ09-VA (8mm Tape Drive)
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools, and Computer
Hardware being purchased by Buyer - continued
Telecommunications Equipment, Personal Computer
and Related Equipment
Customer Service (Bldg. 56)
HP Design Jet 455A Plotter
Cougar 4000-60/Cougar
VAX 4000 CPU Upgrade
TAPE, DEC, on Cougar
VAX 3000 Puma/sn AB43800GCC
ULTRA 30/Wildfire
8505XL EXABYTE/on Wildfire
SUN SPARC 2/Starfire
VAX 3000/Lion/sn AB43800GWG
Plain Paper Fax
HP Laserjet Printer/Wildfire
Dell Optiplex/Cust. Data PC
Compaq DP SB/Xx Xxxxx
Compaq Deskpro/Xxx Xxxxxxxx
Compaq DP 4000/Xxxxxx Xxxxxxx
Compaq DP 575/Xxxxxx Xxxxxxx
Compaq Deskpro/Xxxxxx Xxxx
Compuadd 486/Xxxxx Xxxxxxxxx
Compaq P166/Xxxxx Xxxxxxxxx
Compaq DP 575/Xxxx Xxxxx
Compaq 575/Xxxxx Xxx
Compaq DP4000/Xxxx Xxxxxxx
Portege 650CT Laptop/J Xxxxxxxxxx
HP LaserJet III/J Xxxxxxxxxx
Compaq DP5100/C Xxxxxx
HP Laserjet II Printer/C Xxxxxx
Compaq 266/Xxxxxx Xxxxxxx
Maintenance
Terminal, Dec, VT340/J Xxxxxx
Camera, 3M, Microfiche
CPQ Deskpro 2000/Xxx Xxxxxx
HP Laserjet 4si/Old Starfire Printer
Compaq DP/J Xxxxxxxxxxx
Compaq DP 4000/Xxxxx Xxxxxxxxx
Compaq 575/Xxx Xxxxxxxxx
Compaq DP SB/Xxxx Xxxxx
Telecommunications (Bldg. 56)
Fastiron - 24 Ports
Chassis, Base T Conc
10 Base T Chassis
28115E 100M Stackable
Xyplex Server Chassi
10Baset Monitor Card
2115R 16 Port 100 BA
Base T Connector
3000 T Connector
3000 T Concentrator
Telecom & Computers - Building 60
Dell P75/ Xxxxxx Xxxxxxxx
Compaq DPSB/N Xxxxxx
Gateway 2000/Xxxx Xxxxx
Lexmark Printer/B & Ship
Compaq DPSB/Xxx Xxxxx
CPQ Deskpro 2000/F Xxxxxxxx
Compaq Prolinea 486/MEBES
Compaq/Xxxxxx Xxxx Sys
Compaq 286/Particle Monitor
Add-on Costs/Particle Monitor
Compaq 486/Xxx Xxxx box
CPQ 5166MMX/Xxxx & Ship
Compaq 386/R Xxxxxx/home
Compaq DP2000/Xxxx M
Compaq 5133 MMX/Robe
Xxxxxx Fax 3800
Chassis, Base T Conc
Max 4500T Server
Vax Station Adapter
Terminal, VT240
Dell P75/Xxx Xxxxx
Compaq DP 575/Xxxx Xxxxx
Compaq DP/Xxxxxxx Xxxxx
Compaq 386/MEBES
Compaq DP/Supervisors' PC
Compaq MT 466/Bay 2
HP LaserJet 4Plus/Prd Control
Compaq 433/Xxxxxx Xxxxx
Schedule 2.1(a)(ii)
SCHEDULE 2.1(a)(ii) Cleanroom Fixtures and Improvements
being purchased by Buyer
Recirc. CHW/CW Pumps (11)
Air Handling Xxxx 00 & 00
Xxx Xxxxxxxx Xxxx 00 & 11
Air Handling Unit 12,13,14 & 15 (Pace)
HVAC Upgrade
Hood Duct Filter System
Processing Piping System
DDC System Progrss
EPE Power Block 30KVA
Clean Room Flooring
Doors/Walls/Ceiling
Particle Meas. System (Less Facility View Software)
Under Raised Floor Fire Alarm (Vesda)
Schedule 2.1(a)(iii)
SCHEDULE 2.1(a)(iii) Fixed Assets, Equipment, Machinery, Tools, and Computer
Hardware being purchased by Buyer - continued
Cooling Tower
Cooling Tower Pumps (2)
Cooling Tower Base
Chiller Plant Upgrades (1997)
Scrubber/Exhaust System
Generator/Fuel System
Schedule 2.1(a)(iv)
SCHEDULE 2.1(a)(iv) Inventory and Raw Materials being purchased by Buyer
Item Est. Value
---- ----------
Raw Material - Photomask Blanks & Pellicles $226,000
Work-in-Progress (WIP) $15,000
Finished Goods
Chemicals $14,000
Mask Boxes $25,000
Equipment Spare Parts (see list below) $103,000
On-site Equipment Maintenance Spares
New parts:
QC Optics
-------------------------------------------------
Microscope Drv. Bd. $1,600.00
-------------------------------------------------
DMA BD $ 825.00
-------------------------------------------------
I/O Bd.A $1,150.00
-------------------------------------------------
Analog Bd. $4,250.00
-------------------------------------------------
Sensor, Hammatsu $ 880.00
-------------------------------------------------
PMT Tube $ 550.00
-------------------------------------------------
Motor 22N $ 300.00
-------------------------------------------------
Motor M1616C $ 340.00
-------------------------------------------------
Laser, Pellicle $ 580.00
-------------------------------------------------
Misc. Parts $1,600.00
-------------------------------------------------
Ultra-Tech Plate Cleaner
-------------------------------------------------
Pump, High Pressure $2,000.00
-------------------------------------------------
-------------------------------------------------
Xxxxxx-Xxxx System
-------------------------------------------------
DCM-UC $2,700.00
-------------------------------------------------
DCM-GPC $2,640.00
-------------------------------------------------
MSC-AC $ 550.00
-------------------------------------------------
MSC-PO $ 286.00
-------------------------------------------------
MSC-P1504 $ 450.00
-------------------------------------------------
DMSA-848 $ 650.00
-------------------------------------------------
DMSA-849 $ 610.00
-------------------------------------------------
DMSA-850 $ 400.00
-------------------------------------------------
MSC-U1000 $1,770.00
-------------------------------------------------
DCM-10C $3,200.00
-------------------------------------------------
Misc. Parts $1,400.00
-------------------------------------------------
SCHEDULE 2.1(a)(i) Fixed Assets, Equipment, Machinery, Tools, and Computer
Hardware being purchased by Buyer - continued
On-site Equipment Maintenance Spares - continued
-------------------------------------------------
Used Parts
-------------------------------------------------
QC Optics
-------------------------------------------------
Laser, Argon $ 9,350.00
-------------------------------------------------
Laser Power Sup. $ 3,375.00
-------------------------------------------------
Ultra-Tech Plate Cleaner
-------------------------------------------------
Pump, High Pressure $ 1,500.00
-------------------------------------------------
Misc. Parts $ 4,000.00
-------------------------------------------------
-------------------------------------------------
MEBES
-------------------------------------------------
H-P 8V Power Sup. $ 1,200.00
-------------------------------------------------
M-III EBC $ 8,200.00
-------------------------------------------------
M-III Vacuum System Cntrl $ 1,100.00
-------------------------------------------------
M-III Stage Cntrl Interface $ 1,200.00
-------------------------------------------------
M-III Electron Source Cntrl $ 1,400.00
-------------------------------------------------
CVI Cryo-pump $ 6,000.00
-------------------------------------------------
M-III column Electronic P.S. $ 1,100.00
-------------------------------------------------
V-80 Plotter (2) $ 2,600.00
-------------------------------------------------
LaB6 Gun $ 4,200.00
-------------------------------------------------
Misc. Parts $ 8,900.00
-------------------------------------------------
KLA 100
-------------------------------------------------
Printer Circuit Bds. $ 3,200.00
-------------------------------------------------
DRS-I & II
-------------------------------------------------
Misc. parts $ 5,000.00
-------------------------------------------------
-------------------------------------------------
APT Processor
-------------------------------------------------
Misc. parts $ 5,000.00
-------------------------------------------------
-------------------------------------------------
Tamarack Printer
-------------------------------------------------
Misc. Parts $ 2,000.00
-------------------------------------------------
-------------------------------------------------
OSI/MPV Measuring Systems
-------------------------------------------------
Misc. Parts $ 2,500.00
-------------------------------------------------
-------------------------------------------------
Nitrogen Booster System
-------------------------------------------------
Xxxxxx Pump (4) $ 2,600.00
-------------------------------------------------
TOTAL $103,156.00
-------------------------------------------------
Schedule 2.1(a)(v)
SCHEDULE 2.1(a)(v) Assumed Contracts
Order Order Order Part
Div Dept Charge Vendor Date Number Status Number
R 1999 510056 MICROLITHOGRAPHY 9/4/97 230799 O 710627-999999
R 1999 510056 MICROLITHOGRAPHY 9/4/97 230801 O 710627-999999
R 1999 510056 INKO INDUSTRIAL 7/10/98 238430 O 710627-0103
R 1999 C10055 XXXXXX SCIENTIFIC CO. 7/14/98 000000 X 000000
R 1999 510055 XXXXXX SCIENT 7/14/98 000000 X 000000
R 1999 C10055 XXXXXXX SCIENTIFIC CO. 7/14/98 000000 X 000000
R 1999 510055 XXXXXXX SCIENT 7/14/98 000000 X 000000
R 1999 510056 DUPONT PHOTOMASKS INC 7/24/98 238687 O 710627-999999
R 1999 510056 DUPONT PHOTOMASKS INC 7/24/98 238688 O 710627-999999
R 1999 510056 INKO INDUSTRIAL 10/21/98 240438 O 710627-0106
R 1999 510056 HOYA CORPORATION USA 11/3/98 240644 O 710538-31603
R 1999 510056 HOYA CORPORATION USA 11/2/98 240645 O 710538-61603
R 1999 510056 MICROLITHOGRAPHY INC 11/23/98 241105 O 710627-0503
R 1999 510056 INKO INDUSTRIAL 11/23/98 241106 O 710627-0602
Original Invoiced Dollars
Div Description Dollars Dollars Available
R PELLICLE, ENGINEERING $8,000 $2,400 $5,600
R PELLICLE, ENGINEERING $8,000 $2,400 $5,600
R PELLICLE, ASM $250,000 $175,625 $74,375
R DEVELOPER, AC-12350-2500
(250 ML) $26,569 $19,587 $6,982
R DEVELOPER, AC-12350-2500 $26,569 $19,587 $6,982
R DEVELOPER, AC149660025 (2.5 $53,059 $39,640 $13,419
LI.)
R DEVELOPER, AC149660025 $53,060 $39,640 $13,420
R PELLICLE, ENGINEERING $54,000 $15,525 $38,475
R PELLICLE, ENGINEERING $54,000 $15,525 $38,475
R ASM17P-113-1015-H $112,000 $35,455 $76,545
R 5*5 .090-2UM-EHQ-AR-PBS-U $424,000 $182,850 $241,150
R 6*6 .250-2UM-EHQ-AR-PBS-U $727,650 $417,725 $309,925
R PELLICLE, PE $60,000 $32,820 $27,180
R PELLICLE, UT $35,500 $30,530 $4,970
Order Order Order Part
Div Dept Charge Vendor Date Number Status Number
R 1999 510056 DUPONT PHOTOMASKS INC 12/3/98 241296 O 710627-0307
R 1999 510056 DUPONT PHOTOMASKS INC 12/3/98 241297 O 710627-0306
R 1999 C10055 VWR SCIENTIFIC PRODUCTS 2/3/99 241979 O 210062-031
R 1999 510056 HOYA CORP 2/2/99 242092 O 710538-03000
R 1999 510056 HOYA CORPORATION USA 2/2/99 242093 O 710538-32400
R 1999 510056 HOYA CORP 2/2/99 242094 O 710538-32103
R 1999 510056 HOYA CORPORATION USA 2/2/99 242095 O 710538-31501
R 1999 510056 HOYA CORP 2/2/99 242096 O 710538-33000
R 1999 510056 HOYA CORP 2/2/99 242097 O 710538-53000
R 1999 510056 HOYA CORPORATION USA 2/2/99 242098 O 710538-33200
R 1999 510056 HOYA CORP 2/2/99 242100 O 710538-31501
R 1999 510056 IMAGEX 2/5/99 242101 O 710538-11503
R 1999 510056 HOYA CORP 2/2/99 242102 O 710538-11412
R 1999 510056 HOYA CORP 2/2/99 242103 O 710538-02103
R 1999 510056 IMAGEX 2/5/99 242104 O 710538-01503
R 1999 510056 MICROLITHOGRAPHY INC 2/5/99 242105 O 710627-0204
R 1999 510056 INKO INDUST 2/5/99 242106 O 710627-0208
Original Invoiced Dollars
Div Description Dollars Dollars Available
R PELLICLE:GN501G-5221H $13,500 $12,825 $675
R PELLICLE:GN501P-5221H $13,500 $12,825 $675
R CHEMICAL, CERIUM AMMONIUM $34,040 $15,183 $18,857
NITRATE
R 4 4 .060-10UM-SLW-AR-1350 $1,300 $ $1,300
R 5 5 .090-5UM-QZ-AR-1350-S $18,000 $7,200 $10,800
R 5X5 .090-5UM-WC-AR-PBS-U $8,700 $ $8,700
R 5 5 .090-2UM-EQZ-AR-1350-U $42,250 $2,600 $39,650
R 5 5 .090-10UM-SLW-AR-1350-S $2,600 $ $2,600
R 6 6 .120-10UM-SLW-AR-1350-S $3,300 $ $3,300
R 5 5 .090-5UM-NA-AR-1350-S $155,000 $18,600 $136,400
R 5 5 .090-2UM-EQZ-AR-1350-U $42,250 $ $42,250
R 4 4 .090-2UM-EQZ-AR-PBS-U $12,000 $2,400 $9,600
R 4 4 .090-2UM-QZ-CT-PBS-U $7,250 $ $7,250
R 4X4 .060-5UM-WC-AR-PBS-U $6,300 $ $6,300
R 4X4 .060-2UM-EQZ-AR-PBS-U $5,750 $ $5,750
R PELLICLE, CANON $49,500 $4,950 $44,550
R PELLICLE, CANON $3,400 $ $3,400
Order Order Order Part
Div Dept Charge Vendor Date Number Status Number
R 1999 510056 INKO INDUST 2/5/99 242107 O 710627-0207
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242108 O 710627-0206
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242109 O 710627-0205
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242110 O 710627-0200
R 1999 510056 INKO INDUST 2/5/99 242111 O 710627-0301
R 1999 510056 INKO INDUST 2/5/99 242112 O 710627-0001
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242114 O 710627-0201
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242115 O 710627-0202
R 1999 510056 INKO INDUST 2/5/99 242116 O 710627-0209
R 1999 510056 INKO INDUST 2/5/99 242117 O 710627-0210
R 1999 510056 INKO INDUSTRIAL 2/5/99 242118 O 710627-0303
R 1999 510056 INKO INDUSTRIAL 2/5/99 242119 O 710627-0304
R 1999 510056 INKO INDUSTRIAL 2/5/99 242120 O 710627-0305
R 1999 510056 INKO INDUST 2/5/99 242121 O 710627-0400
R 1999 510056 INKO INDUST 2/5/99 242122 O 710627-0401
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242123 O 710627-0402
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242124 O 710627-0403
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242125 O 710627-0500
R 1999 510056 INKO INDUST 2/5/99 242126 O 710627-0504
R 1999 510056 INKO INDUSTRIAL 2/5/99 242127 O 710627-0505
R 1999 510056 MICROLITHOGRAPHY 2/5/99 242128 O 710627-0600
R 1999 510056 MICROLITHOGRAPHY INC 2/5/99 242129 O 710627-0501
Original Invoiced Dollars
Div Description Dollars Dollars Available
R PELLICLE, CANON $5,600 $ $5,600
R PELLICLE, CANON $2,750 $ $2,750
R PELLICLE, CANON $2,750 $ $2,750
R PELLICLE, CANON $60,000 $8,700 $51,300
R PELLICLE, GCA $64,000 $6,080 $57,920
R PELLICLE, TRE $32,000 $ $32,000
R PELLICLE, CANON $48,000 $9,360 $38,640
R PELLICLE, CANON $44,800 $3,540 $41,260
R PELLICLE, CANON $3,500 $ $3,500
R PELLICLE, CANON $3,500 $00 $3,500
R PELLICLE, GCA $9,600 $1,280 $8,320
R PELLICLE, GCA $6,500 $3,250 $3,250
R PELLICLE, GCA $6,500 $3,250 $3,250
R PELLICLE, NIK $3,450 $ $3,450
R PELLICLE, NIK $3,450 $ $3,450
R PELLICLE, NIK $6,500 $1,950 $4,550
R PELLICLE, NIK $6,500 $2,275 $4,225
R PELLICLE, PE $4,500 $600 $3,900
R PELLICLE, PE $11,550 $ $11,550
R PELLICLE, PE $19,200 $1,280 $17,920
R PELLICLE, UT $3,100 $ $3,100
R PELLICLE, PE $31,050 $8,775 $22,275
Order Order Order Part
Div Dept Charge Vendor Date Number Status Number
R 1999 510056 INKO INDUSTRIAL 2/5/99 242130 O 710627-0300
R 7160 510056 RTD EXPRESS 2/2/99 242266 O SERVICE
R 1999 510056 HOYA CORPORATION USA 2/2/99 242287 O 710538-E1503
R 1999 510056 DUPONT PHOTOMASKS INC 2/11/99 242386 O 710627-0406
R 1999 510056 DUPONT PHOTOMASKS INC 2/11/99 242387 O 710627-0407
R 1999 510056 MICROLITHOGRAPHY INC 3/2/99 242728 O 710627-0203
R 1999 510056 HOYA CORPORATION USA 3/24/99 243283 O 710538-51503
R 1999 510056 DUPONT PHOTOMASKS INC 3/30/99 243337 O 710627-0409
R 1999 510056 DUPONT PHOTOMASKS INC 3/30/99 243338 O 710627-0306
R 1999 510056 DUPONT PHOTOMASKS INC 3/30/99 243339 O 710627-0307
R 7150 568550 INSTRUMENTATION 5/5/99 244192 O 00-00000-00
SERVICES
R 7140 568550 INTEGRATED SOFTWARE 5/7/99 244269 O SERVICE
DESIGN INC
R 1999 510054 ASHLAND CHEMICAL CO 5/17/99 244458 O 210062-017
R 1999 510053 FLUOROWARE INCORPORATED 5/21/99 244552 O 215494-012
Original Invoiced Dollars
Div Description Dollars Dollars Available
R PELLICLE, GCA $30,500 $2,745 $27,755
R SERVICE, SEE BELOW PLEASE $500 $115 $385
R 7.25 .150-2UM-EQZ-AR-PBSU $520,000 $298,480 $221,520
R PELLICLE; NI522P-5211H $14,500 $11,600 $2,900
R PELLICLE; NI522G-5211H $14,500 $9,425 $5,075
R PELLICLE, CANON $81,000 $25,920 $55,080
R 6 6 .120-2UM-EQZ-AR-PBSU $240,000 $52,000 $188,000
R PELLICLE; NI609P-7043L $94,000 $9,400 $84,600
R PELLICLE: GN501P-5221H $54,000 $8,100 $45,900
R PELLICLE: GN501G-5221H $54,000 $7,425 $46,575
R PRINTER HEAD, STYLUS 6470 $220 $ $220
R ON-TAP ALPHA DEPT. S $795 $ $795
4000, 2100 SER. 5294A
R ACETIC ACID, (4 X 9 LB. PER $799 $396 $403
CASE)
R BOX FOR FINISHED PHOTOMASK-5" $756 $378 $378
PA'S H60-60-0615 WHT
Order Order Order Part
Div Dept Charge Vendor Date Number Status Number
R 1999 510053 FLUOROWARE INCORPORATED 5/21/99 244553 O 215494-014
R 7120 568202 ZEPHYRHILLS WATER 2/10/99 252032 O 1
Original Invoiced Dollars
Div Description Dollars Dollars Available
R BOX FOR FINISHED PHOTO $4,310 $2,155 $2,155
R DRINKING WATER SYSTEM AND $500 $243 $257
BOTTLED WATER
Schedule 2.1(a)(vi)
Schedule 2.1(a)(vi) Prepaid Expenses
Software - Est. Value $4,000
Schedule 7.6
Schedule 7.6(a) All Software Licenses used in or on behalf of the Photomask
Business
Facility View
Standard Client (Windows 95/NT, MS Office 97 Pro, Outlook, I.E., Onnet, McAfee)
Kea!
Adobe Acrobat 3.0
Corel PhotoPaint
PowerBuilder 6.0
Visio Hub/Docs: Exceed 6.1
L-View Pro 2.0
WinZip Visual Basic 5.0
Visual C++
Project
FrontPage98
Microsoft Developer
Wave Star 1.1.2
Pocket Logger
Perl
FedEx Shipping
Harvard Graphics
3.05 LabelWorks
2.0 Lotus 1-2-3, v3.1
Microsoft Liquid Motion
Omni Page (OCR software)
Paradox 4.0
Paradox 4.5
PGP 5.5 for Enterprise Security
ProComm Plus
Quick Books 4.0.2
Telemoney PC Batch 2.2 (VISA)
Cobol
Ontap
JSS
DECset
CDD/DBMS
DECForms
Diskeeper
Multinet
Pascal
DEC C
FMS
RS 1
Robomon
Schedule 7.6(a) All Software Licenses used in or on behalf of the Photomask
Business (continued)
SLS
PGPOST
XXXXX
MDECK
EYORE
TABBY
CATS GRAPHICS
CATS FRACTURE
MNET
MICE II
XXXX
INGRESS
XXXX AND SHIP
CASPER
PERF EVAL
CONNX
JSURVEY
PGP UNIX ENCRYP
LABELING
UCX TCP/IP
VMS 5.5-2 OS
VMS 5.4 OS
VMS 6.2 OS
VAX Watcher
VAX DW-MOTIF
Consilium Workstream
On Line SPC
Xxx Xxxx
HITG Web Site
Customer Web Sites
Solaris Unix 2.5.1 OS
Sun 4.1.4 O
Exhibit B
[Form of]
Lease Agreement
by and among
Xxxxxx Corporation
Semiconductor Business Unit
and
Align-Rite, Inc.
LEASE SUMMARY
Lessor: Xxxxxx Corporation
Semiconductor Business Unit
Notice Address: 0000 Xxxx Xxx Xxxx XX, m/s 00-000
Xxxx Xxx, XX 00000
Attention: Xxx Xxxx
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
with a copy to: Vice President Counsel
Xxxxxx Semiconductor Business Xxxx
0000 Xxxx Xxx Xxxx NE, m/s 53-216
Fax Number: (000) 000-0000
----------------------------------------------------------------------------
Lessee: Align-Rite, Inc.
Notice Address: c/o 0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
with a copy to: J. Xxx Xxxxxx, Esquire
Xxxxxx X. Xxxxx, Esquire
O'Melveny & Xxxxx
610 Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
----------------------------------------------------------------------------
Date of this Agreement: July 2, 1999
Description of Demised Premises: Building 60 and a portion of
Building 56, as described in
Exhibits "A" through "D" hereof
Gross Rentable Square Feet: Building 60: approx. 25,567 sq. ft.
Building 56: approx. 8,108 sq. ft.
LEASE SUMMARY (continued)
Lessee's proportionate Share: Building 60: 100%
Building 56: 50.6% (4,101 sq. ft.)
with option to expand
to 95%
Rent: Years 1 - 2 $225,000.00 annually,
plus tax; adjusted if
the option to expand the
occupied portion of
building 56 is exercised
("Adjusted Rent")
$225,000 or the adjusted
rent increased by
the increase, if
any, in the
Producer Price
Index for the
month of July in
the year in which
any option to
renew is exercised
over the Producer
Price Index for
July, 1999, if
option to renew is
exercised.
Term of Lease: Two (2) years
Option to Extend Term: Six (6) options of three (3) years
each
Commencement date: July 3, 1999
Liability Insurance: Lessor to provide for Building Shells
Lessee to provide for Building contents
Security Deposit: None
Table of Contents
1. Premises
2. Term
3. Rent
4. Additional Rent/Tax
5. Use of Premises
6. Utilities
7. Maintenance, Repairs & Alterations
8. Fixtures
9. Security
10. Services
11. Signs
12. Parking Spaces
13. Entry Way
14. Hazardous Material Storage Area
15. Stock Room
16. Telephone Communications Equipment
17. Condition of Premises
18. Insurance
19. Destruction of Premises
20. Condemnation
21. Default
22. Remedies Upon Event of Default
23. Option to Renew
24. Option to Expand
25. Hazardous Materials
26. Indemnification
27. Abandonment of Premises
28. Assignment and Subletting
29. Option to Cancel
30. Compliance with Law
31. Holding Over
32. Lessor's Right to Entry and Inspection
33. Lessor's Right to Perform Lessee's Covenants
34. Late Payment Charges
35. Liens
36. Notices
37. Quiet Enjoyment
38. Security Deposit
39. Successors and Assigns
40. Surrender of Premises
41. Transfer of Property by Lessor
42. Estoppel Certificate and Subordination
Table of Contents - continued
43. General
44. Governing Law
45. Force Majeure
46. Entire Agreement
47. Attorneys' Fees
48. Authority
Exhibits
Exhibit A - Map of the Complex located at 0000 Xxxx Xxx Xxxx XX, Xxxx Xxx, XX
00000
Exhibit B - Description of the demised Premises
Exhibit C - Layout of Building 56, first floor
Exhibit D - Layout of Building 56, second floor
COMMERCIAL NET LEASE
This Lease Agreement is entered into this 2nd day of July, 1999 at Palm Bay,
Florida, by and among Xxxxxx Corporation, a Delaware Corporation, acting through
its Semiconductor Business Unit, 0000 Xxxx Xxx Xx. XX, Xxxx Xxx, XX 00000
("Lessor"), and Align-Rite, Inc., a Florida Corporation, c/o 0000 Xxxxxxx
Xxxxxx, Xxxxxxx, XX 00000-0000 ("Lessee").
RECITALS
WHEREAS, Lessor and Lessee have or will enter into a separate Asset
Purchase Agreement ("Asset Purchase Agreement") of even date herewith for the
sale of certain assets to Lessee used in connection with Lessor's Photomask
Business; and
WHEREAS, Lessor and Lessee have or will enter into a separate Site Services
Agreement ("Site Service Agreement") of even date herewith for the provision of
certain services to Lessee used in connection with Lessor's Photomask Business;
and
WHEREAS, Lessor has agreed to lease the principal facilities used in the
Photomask Business ( as defined in the Asset Purchase Agreement) to Lessee.
AGREEMENT
In consideration of the premises, the mutual promises contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties agree
as follows:
1. PREMISES:
Lessor hereby leases to Lessee and Lessee hires from Lessor for the Term,
at the rental, and upon all of the conditions set forth herein, a portion of the
complex situated in the City of Palm Bay, Brevard County, State of Florida,
located at 0000 Xxxx Xxx Xx. XX, Xxxx Xxx, XX 00000 (the "Complex", a map of
which is attached hereto and incorporated herein as Exhibit "A"), said portion
consisting of Building 60, which contains the Imaging Technology Group photomask
manufacturing facilities, and a portion of Building 56, which contains office
space, more particularly depicted in Exhibits "B" through "D" attached hereto
and incorporated herein by reference (the "Premises").
2. TERM:
The term of this Lease shall be for twenty-four (24) months commencing July
3, 1999, (the "Commencement Date") and terminating on July 2, 2001, The term
shall be automatically renewed for six extensions of three years each, pursuant
to Section 23, unless terminated pursuant to Section 29 (as so extended the
"Term").
3. RENT:
Rent shall be payable in advance on the first day of each month, commencing
on July 3, 1999 without abatement, deduction, offset, prior notice or demand.
Building 60 is a triple-net lease, whereby the monthly rent covers the building
shell only; real property taxes, utilities, site services and insurance on the
building shell are not included. Building 56 is a fully-burdened lease, whereby
the monthly rent includes all utilities, real property taxes, and insurance on
the building shell. The total rent for the Premises, consisting of 100%
occupancy of building 60 and initially 50.6% occupancy of Building 56, shall be
$225,000.00 annually, which is $18,750.00 per month.
If the Commencement Date of this Lease is other than on the first of the
month, that month's rent shall be pro-rated accordingly. The rent for the last
month of the Lease, whether during the Term, shall also be pro-rated. Commencing
on the twenty-fifth (25th) month of the Term hereof and thereafter every three
(3) years, the annual rent shall be adjusted (as illustrated below) by adding to
the annual rent an amount calculated by multiplying Base Rent by the Increase in
PPI, if a positive number. As used herein: "Base Rent" means $225,000 or, if
Lessee has exercised its option to increase occupancy of Building 56 to 95% of
this area of the Building, $250,000; "Increase in PPI" means the amount obtained
by subtracting the Commencement PPI from the Final PPI and dividing such
difference by the Final PPI' "Commencement PPI" means the PPI for July 1999;
"Final PPI" means, with respect to the first renewal term, the PPI for June 2001
and, with respect to each successive renewal term, the PPI for the month
immediately preceding the first month of the applicable successive renewal term;
and "PPI" means the Producer Price Index for the month in question as published
by the United States Department of Commerce ("USDC"), or such substitute or
replacement index therefor as may be published by the USDC. In the event that
the PPI is discontinued and not replaced by an index published by the USDC, the
parties hereto shall agree to a reasonable replacement index to approximate the
results under the foregoing formulas that would be achieved through use of the
PPI.
Example of Rent Calculation
New Rent (1st Renewal Term) =
Base Rent + [(Base Rent) x ({PPI (6/01)} - {Commencement PPI}/Commencement PPI)]
New Rent (2nd Renewal Term) =
Base Rent + [(Base Rent) x ({PPI (6/04)} - {Commencement PPI}/Commencement PPI)]
Should Lessee exercise the option to expand as set forth in Section 23 herein,
the monthly rent of Building 56 will increase to reflect 95% occupancy, and the
total rent for the Premises shall be $250,000 annually, which is $20,833.33 per
month.
4. ADDITIONAL RENT/TAX:
a) In addition to the rent required to be paid under this Lease,
Lessee shall pay, as additional rent, the utilities charges as set forth in
the "Consumables" Section (provided to Align-Rite by Xxxxxx) on page 2 of
Exhibit "A" of the Site Services Agreement.
b) In addition to the rent required to be paid under this Lease,
Lessee shall pay, as additional rent, six percent (6%) Florida sales tax on
the monthly rental amount as required by Florida Statutes ss. 212.031.
c) In addition to the rent required to be paid under this Lease,
Lessee shall pay, as additional rent, a monthly pro-rata portion of any and
all Real Property Taxes levied or assessed against Buildings 60 during the
Term of this Lease. The estimated real estate taxes in fiscal year 2000 for
Building 60 is $17,244.
d) For purposes of this Lease, Real Property Taxes shall be defined as
follows: (i) All real estate taxes, including but not limited to town,
county and school taxes payable (adjusted after protest or litigation, if
any) for any part of the term of this Lease including any extension period
hereof on the Premises, (ii) any taxes that shall be levied in lieu of the
taxes described in (i) above or that shall be levied on the gross rentals
of the Premises but excluding all income taxes of Lessor, (iii) any other
governmental real estate taxes, levies, impositions or charges of a similar
or dissimilar nature, whether general, special, supplemental, ordinary,
extraordinary, foreseen or unforeseen that may be assessed, levied or
imposed upon all or any part of the Premises, and (iv) the reasonable
expense of contesting the amount or validity of any such taxes, charges or
assessments, such expense (including reasonable attorneys' fees) to be
applicable to the period of the item contested. If the method of taxation
of real estate utilized by the taxing jurisdictions having jurisdiction
over the Premises at the time of execution of this Lease shall be altered
so as to cause the whole or any part of the taxes now or hereafter levied,
assessed or imposed on real estate to be levied, assessed or imposed upon
Lessor wholly or partially, as a capital levy or other tax or otherwise, or
on or measured by the rents received therefrom, then such new or altered
taxes attributable to the Premises shall be included within the term "Real
Estate Taxes."
e) Tax Hold-Harmless Clause: Lessee shall indemnify and hold Lessor
and the property of Lessor, including said Premises and any improvements
now or hereafter on said Premises, free and harmless from any liability,
loss, or damage resulting from any taxes, assessments, or other charges
required by this Article to
be paid by Lessee and from all interests, penalties, and other sums imposed
thereon and from any sales or other proceedings to enforce collection of
any such increase in taxes, assessments, or other charges.
f) Payment by Lessor: Should Lessee fail to pay within the time
specified in this Article any taxes, assessments, or other charges required
by this Article to be paid by Lessee, Lessor may, but is not obligated to,
without notice to or demand on Lessee, pay, discharge, or adjust such tax,
assessment, or other charge for the benefit of Lessee. In such event,
Lessee shall promptly on written demand of Lessor reimburse Lessor for the
full amount paid by Lessor in paying, discharging, or adjusting such tax,
assessment, or other charge together with interest thereon at the rate of
ten percent (10%) per annum from the date of payment by Lessor until the
date of repayment by Lessee. Where no time within which any charge required
by this Article to be paid by Lessee is specified in this Article, such
charge must be paid by Lessee before it becomes delinquent.
g) Lessee shall pay all taxes assessed against or levied upon
fixtures, furnishings, equipment and all other personal property of Lessee
located in the Premises other than those furnished and paid for by Lessor.
5. USE OF PREMISES:
The Premises shall be used and occupied by Lessee for its lawful business
consistent with the Photomask Business conducted on the Premises by Lessor prior
to the Closing Date and incidental uses thereto. Lessee is responsible to obtain
any and all licenses and/or permits required for the lawful operation of
Lessee's business.
6. UTILITIES:
Lessee shall pay or cause to be paid all charges for the furnishings of
utilities to Building 60 including, but not limited to, water, electricity,
nitrogen and deionized water to the Premises during the term of this Lease as
set forth in the Site Services Agreement. Lessor will provide utilities in
accordance with Lessor's specifications. Lessee hereby acknowledges that Lessor
is not in the business of providing the utilities herein and that Lessor does
not warrant the performance of providing utilities hereunder. In the event of an
error or omission in the provision of utilities which shall be established to be
principally caused by Lessor's performance hereunder, Lessor shall credit Lessee
for any previously invoiced charges in connection with such utilities. Such
adjustment shall be Lessee's only remedy. Lessor shall have no liability to
Lessee for any special, consequential, or incidental damages. Lessor shall
undertake to perform services hereunder for Lessee substantially in the same
manner as if it were performing such services for a Lessor business unit.
Lessor's obligations to provide any service hereunder is conditioned
upon the responsible party obtaining prior to the commencement of such services
all necessary governmental licenses, approvals, and permits. The utility charges
shall be considered additional rent in accordance with Article 4 of this Lease.
7. MAINTENANCE, REPAIRS & ALTERATIONS:
a) Lessee agrees that the Premises are now in a tenantable and good
condition. Lessor shall maintain the building structure, all utility and
production supply piping up to the point of entry into the Premises or to
the meter, if applicable, windows, doors, landscaping, parking lot, fire
detection and alert system, and the interior sprinkler system of the
Premises in good condition and repair in accordance with the policies and
procedures of Lessor, whether written or oral, by which Lessor maintains
the other buildings on the Complex. Repairs will be performed in accordance
with Lessor's standard procedures for scheduling such work, using the same
workmanship levels and materials used for the adjacent buildings of the
Complex as shown on Exhibit "A". Lessee shall maintain the remainder of the
Premises in good condition and repair.
b) Lessee may use any contractor of Lessee's choice to complete any
repair, maintenance, alteration, or improvement to be completed under this
Section. All such contractors must submit required information to Lessor's
facility and security functions and be cleared and badged appropriately
before being admitted to the Complex. Information required to be submitted
to the Facilities department prior to the commencement of work includes the
scope of the work, detailed engineering drawings, and a xxxx of materials.
In the alternative, at Lessee's request, Lessor shall make available to
Lessee, Lessor's list of qualified contractors, which Lessee is free to
hire to complete any repair, maintenance, alteration, or improvement.
c) The Premises shall not be materially altered, repaired or changed
without the written consent of Lessor, which will not be unreasonably
withheld. Detailed descriptions or drawings ("Plans") of proposed
alterations are to be supplied to the Lessor ten (10) business days prior
to the start of work. The Lessor will respond in writing within ten (10)
business days of its receipt of any Plans; Lessor's failure to respond
within such period shall be conclusively deemed to be Lessor's approval of
the applicable Plans.
d) Lessee may at Lessee's option and Lessee's expense submit a work
order to Lessor's facilities department to complete any repair,
maintenance, alteration, or improvement. In such event Lessor shall charge
Lessee for the work in accordance with the Site Services Agreement between
Lessor and Lessee.
8. FIXTURES:
Only those fixtures and improvements set forth in Schedules to the Asset
Purchase Agreement shall belong to Lessee; all other fixtures and improvements
to the Premises shall remain the property of Lessor. All fixtures and
improvements other than Lessee's trade fixtures and equipment which are
installed or constructed upon or attached to the Premises by either the Lessor
or the Lessee shall become a part of the realty and belong to Lessor. Lessee
may, at the termination or expiration of this Lease, or at any other time,
remove from the Premises all trade fixtures, equipment, and other personal
property owned by Lessee and not permanently affixed to the Premises. Upon said
removal, Lessee shall restore the Premises to its original condition at the time
of occupancy, normal wear and tear and other casualty damage excepted.
9. SECURITY:
Building security will be supplied by the Lessor at the cost and terms set
forth in the Site Services Agreement. These services include:
(a) Guard Services:
o Periodic checks of the closed area: twice per day during 1st
shift, and every two hours during 2nd and 3rd shifts, weekends,
and holidays.
(b) Badging:
o Badge Lessee's guests and employees with a badge different from
that of Lessor's employees, but permitting Lessee's employees
unrestricted access to all common areas of the Complex. Lessor's
employees and agents shall have unrestricted access to both
Building 56 and 60.
o Lobby training and support for Building 60 receptionist
o Provide perimeter access control and interface with Cardkey
systems
o Handle incoming and outgoing classified visits
(c) Clearances:
o Fingerprinting, paperwork processing, electronic submission to
appropriate government agencies, appointments for polygraphs,
interviews with government investigators.
(d) Briefings:
o Initial security briefings to all cleared employees, rebrief when
appropriate, debrief when employees terminate.
o Foreign travel briefing and reporting
o Computer Security briefings
(e) Security Education:
o Periodic reminders of security practice for cleared employees
(f) Locks and Combinations:
o Furnish "approved containers" and approved locks for classified
storage,
maintain classified combinations. Change combinations when
required.
(g) Classified Material Control:
o Control and accountability of all classified materials (documents
and hardware).
o Shipping and Receiving of all classified material on the
premises.
(h) Computer Security support
(i) CSSO (Contractor Special Security Officer) and COMSEC
(Communications Security) Custodian on premises.
(j) Liaison with Defense Security Service Reps. and NSA for internal
audits and inspections.
Lessee shall appoint a security officer responsible for all security
matters relating to Lessee's Photomask Business. The name of this person shall
be provided to Lessor within five (5) business days after the commencement of
this Lease. Lessee shall, at its sole cost, obtain a security clearance for the
Premises as required to handle classified materials in accordance with U.S.
Government Department of Defense requirements.
Lessee will have access to and use of the secure conference room located in
Building 52 as shown on Exhibit "A", subject to preemption by Lessor for
confidential meetings which necessarily take priority over said use by Lessee.
Lessee shall comply with Lessor's on-site hurricane preparedness and evacuation
plan as directed by the Complex Director of Emergency Operations. Lessee
acknowledges receipt of a copy of Lessor's Hurricane Plan.
10. SERVICES:
Lessor will provide Lessee with site services in accordance with the cost
and terms set forth in the Site Services Agreement.
11. SIGNS:
a) Lessee may install a suitable sign on the Complex which meets all
applicable signage codes, with the prior written approval of the Lessor,
which shall not be unreasonably withheld. Lessee shall not construct any
projecting sign or awning without the prior written consent of Lessor,
which consent shall not be unreasonably withheld. The cost of the sign, its
installation, operation, and maintenance expenses shall be Lessee's sole
expense.
b) Lessee may install suitable signs which meet all applicable signage
codes for the six (6) designated parking spaces assigned in Section 12,
subject to the prior written approval of the Lessor, which consent shall
not be unreasonably withheld. Upkeep of the signs shall be at Lessee's sole
expense.
12. PARKING SPACES:
Lessee shall be assigned and entitled to use at no additional cost six (6)
parking spaces in the parking lot located to the south of Building 54 and to the
east of Building 53 of the Complex as shown on Exhibit "A". Lessee may xxxx
these as designated spaces with signs as set forth in Section 11.
13. ENTRY WAY:
Lessee may install a separate covered entry way to Building 60 from the
parking lot located to the south of Building 54 and to the east of Building 53
of the Complex as shown on Exhibit "A", with the prior written consent of the
Lessor, which consent shall not be unreasonably withheld. The cost of the entry
way, its installation, operation, and maintenance shall be at Lessee's sole
expense.
14. HAZARDOUS MATERIAL STORAGE AREA:
Lessee may build a separate storage area for Hazardous Materials on the
west side of Building 60 adjacent to the loading dock with approximate
dimensions of twenty-four feet by twenty feet (24' x 20'), having access from
both inside and outside the building, subject to the prior written consent of
Lessor, which consent shall not be unreasonably withheld. The cost of
installation, operation, and maintenance of this storage area shall be at
Lessee's sole expense.
15. STOCK ROOM:
Lessee shall have access to and use of the Building 61 stock room during
Lessor's normal operating hours for those materials necessary for operation of
Lessee's Photomask Business. Materials stored by Lessee shall be substantially
the same as those stored by Lessor for use in the Photomask Business prior to
the Closing Date. No material change in the type or kind of materials stored in
Building 61 after the Closing Date by Lessee is allowed without the prior
written approval of Lessor, which consent shall not be unreasonably withheld.
Lessee must furnish Material Safety Data Sheets with any new chemicals approved
for storage by Lessor. For the purposes of Sections 15 and 25 the introduction,
use, storage or disposal of any materials not used by the Photomask Business
prior to the Closing Date, which are toxic, corrosive, hazardous substances or
flammable (including solvents) constitutes a material change.
16. TELEPHONE COMMUNICATIONS EQUIPMENT:
Lessee shall be allowed to use the local telephone service provider's
external telephone lines and network interface on the Complex for connecting
their
own separate telephone system with the service provider. Lessor's
telecommunications personnel shall be consulted prior to any work relating to
telephone connections is performed. All work, equipment, connection fees, and
usage fees for a separate telephone system and account will be at Lessee's sole
expense. If Lessee exercises the option to expand as set forth in Section 24
herein, Lessor's telecommunications personnel shall be allowed access to the
sixty-nine (69) square-foot Communications Equipment Room (CER) located in
Building 56 as shown in Exhibit "C" during the remainder of the Term, with
reasonable prior notice to Lessee. Lessor shall maintain possession and control
of the four-hundred (400) square-foot CER located in Building 56 as shown on
Exhibit "C" throughout the entire Term of this Lease, including renewal Terms.
17. CONDITION OF PREMISES:
Except as otherwise provided in this Lease, Lessee has inspected and hereby
accepts the Premises in their condition existing as of the Commencement Date or
the date that Lessee takes possession of the Premises, whichever is earlier,
subject to all applicable zoning, municipal, county and state laws, ordinances
and regulations governing and regulating the use of the Premises, and any
covenants or restrictions of record, and accepts this Lease subject thereto and
to all matters disclosed thereby and by all exhibits attached hereto. Lessee
acknowledges that neither Lessor nor Lessor's agent has made any representation
or warranty as to the present or future suitability of the Premises for the
conduct of Lessee's business, except as set forth in the Asset Purchase
Agreement.
Notwithstanding the foregoing, Lessor agrees to deliver the Premises to
Lessee with basic facilities equipment in repair and operational including those
mechanical, plumbing and electrical systems which were in place as of July 2,
1999. Lessor agrees to provide a knowledgeable individual to review the start-up
of the basic facility equipment and transfer the information to the appropriate
staff member of Lessee. This support will not exceed one week of time and will
be a one-time event.
18. INSURANCE:
Lessor will obtain and keep in effect throughout the Term an insurance
policy providing general comprehensive property damage insurance for the
building shells, including floor, walls and ceiling (but not the cleanroom)
only. Lessee will obtain and keep in effect throughout the Term an insurance
policy providing bodily injury liability insurance with a limit amount of not
less than $2,000,000.00 per occurrence, which names Lessor as an additional
insured. The limits of said insurance shall not however limit the indemnity
provisions of Lessee hereunder.
(a) Lessee hereby agrees that Lessor shall not be liable for injury to
Lessee's business or any loss of income therefrom or for damage to the
goods, wares,
merchandise or other property of Lessee, Lessee's employees, invitees,
customers or any person in, on, or about the Premises nor shall Lessor be
liable for injury to the person of Lessee, Lessee's employees, agents,
invitees or contractors whether such damage or injury is caused by or
results from fire, wind, steam, electricity, gas, water or rain or from the
breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures or from
any other cause whether the same damage or injury results from conditions
arising upon the Premises or upon other portions of the Complex of which
the Premises are a part or from other sources or places and regardless of
whether the cause of such damage or injury or the means of repairing the
same is inaccessible to Lessee, unless such damage or injury results from
the gross negligence or willful acts of Lessor, Lessor's employees, agents
or contractors.
(b) Property Damage Insurance: Lessee agrees at its sole expense to
maintain in full force during the Term, a policy of property damage
coverage for any and all personal property of Lessee on the Premises in the
amount of its reasonable replacement value. Consistent with the foregoing,
Lessee shall, at Lessee's own cost and expense at all times herein, during
the Term of this Lease and any extended term thereof, keep the contents of
the Premises, including the cleanroom, improvements and other personal
property on the Premises insured for their full replacement cost against
loss or destruction by fire, earthquake, flood wind, and other perils,
including vandalism and malicious mischief, commonly covered under the
standard extended coverage endorsement in Brevard County, State of Florida.
"Full replacement cost" as used in this section shall mean the actual
cost of replacement for personal property and other improvements on the
Premises as determined from time to time. If at any time during the term of
this Lease, Lessor believes that the full replacement cost has increased,
Lessor shall notify Lessee in writing. If Lessee agrees with the increased
full replacement cost set forth in Lessor's notice, Lessee shall increase
the amount of insurance carried to the amount stated in the notice. If the
parties are unable to agree within that time period, the increased full
replacement cost, if any, shall be determined by the insurance carrier that
is then carrying the largest amount of fire and extended coverage on the
Premises. That determination shall be final and Lessee shall immediately
increase the amount of insurance to the amount determined by that carrier.
(c) Waiver of Subrogation Rights: Lessee and Lessor each hereby
release and relieve the other and waive their entire right of recovery
against the other for loss or damage arising out of or incident to all
perils insured against, which perils occur in, on or about the Premises
whether due to the negligence of Lessor or Lessee or their agents,
employees, contractors or invitees. Lessee and Lessor shall, upon obtaining
the policies of insurance required hereunder, give notice to the insurance
carrier or carriers of the foregoing mutual waiver of subrogation.
19. DESTRUCTION OF PREMISES:
(a) Duty to Repair or Restore: If any improvements, including
buildings and other structures, located on the Premises are damaged or
destroyed during the term of this Lease or any renewal or extension
thereof, the damage shall be repaired as follows:
(i) If the damage or destruction is caused by a peril against
which fire and extended coverage insurance is required to be carried
by Section 18 of this Lease, Lessor shall repair that damage as soon
as reasonably possible and restore the Premises and improvements to
substantially the same condition as existed before the damage or
destruction, regardless of whether the insurance proceeds are
sufficient to cover the actual cost of repair and restoration.
(ii) If the damage or destruction is of personal property of
Lessee and is caused by a peril against which fire and extended
coverage insurance is required to be carried by Section 18 of this
Lease, Lessee shall repair that damage as soon as reasonably possible
and restore the Premises and improvements to substantially the same
condition as existed before the damage or destruction, regardless of
whether the insurance proceeds are sufficient to cover the actual cost
of repair and restoration.
(iii) If the damage or destruction is caused by a peril against
which insurance is not required to be carried by this Lease, subject
to their rights to terminate this Lease described in this Section,
Lessor shall repair that damage to the buildings and Lessee shall
repair that damage to its personal property and any improvements to
the Premises owned by Lessee, trade fixtures, equipment and the like
as soon as reasonably possible and restore the Premises to
substantially the same condition as existed before the damage or
destruction.
(b) Termination of Lease for Certain Losses:
(i) Notwithstanding any other provision of this Lease, if any
improvements located on the Premises are damaged or destroyed to such
an extent it will cost more than $250,000.00 (as determined by Lessor
in the exercise of its reasonable discretion) to repair or replace
them, and the damage or destruction is caused by a peril against which
insurance is not required to be carried by this Lease, Lessor may
terminate this Lease by giving Lessee written notice of the
termination. The notice must be given within thirty (30) days after
occurrence of the damage or destruction.
(ii) Lessee and Lessor shall each have the right in its
respective sole and absolute discretion, to terminate this Lease under
either of the following circumstances:
(A) If the Premises are damaged or destroyed from any cause
whatsoever, insured or uninsured, and the laws then in existence
do not permit the repair or restoration of the Premises provided
for in this article; or
(B) If the Premises are destroyed from any cause
whatsoever, insured or uninsured, during the last twelve (12)
months of the Term.
(iii) Either party may terminate this Lease in accordance with
Section 18(b)(i) or (ii) by giving written notice of termination to
the other not later than thirty (30) days after occurrence of the
event giving rise to the termination under subsection (ii), and
termination shall be effective as of the date of the notice of
termination. In the event of a termination under subsection (ii),
Lessee shall not be entitled to collect any insurance proceeds
attributable to insurance policies covering the Premises or
improvements, except those proceeds attributable to Lessee's personal
property and trade fixtures.
(iv) If this Lease is terminated pursuant to either subsection
(i) or (ii) above, rent, taxes, assessments, and other sums payable by
Lessee to Lessor under this Lease shall be prorated as of the
termination date. If any taxes, assessments, or rent has been paid in
advance by Lessee, Lessor shall refund it to Lessee for the unexpired
period for which the payment has been made.
(c) Time for Construction of Repairs: Any and all repairs and
restoration of improvements required by this section shall be commenced by
Lessor or Lessee, as the case may be, within a reasonable time after
occurrence of the damage or destruction requiring the repairs or
restoration, shall be diligently pursued after being commenced, and shall
be completed within a reasonable time after the loss. If Lessor is required
under this Lease to perform the repairs and restoration, Lessor shall cause
the repairs and restoration to be completed not later than one hundred
twenty (120) days after occurrence of the event causing destruction or
Lessee shall have the right to terminate this Lease. In the event of damage
or destruction to the Premises as described in this Section 18, rent shall
be abated in proportion to the extent that the Premises are rendered
untenantable by such damage or destruction from the date of such damage or
destruction to the date of substantial completion of all required repairs
and restoration.
20. CONDEMNATION:
(a) Total Condemnation Defined: The term "total condemnation" as used
in this section shall mean the taking by eminent domain or transfer under
threat thereof ("condemnation") by a public or quasi-public agency or other
entity having the power of eminent domain ("condemnor") of either:
(i) More than thirty-three percent (33%) of the ground area of
Building 60; or
(ii) Less than thirty-three percent (33%) of the xxxxxx xxxx xx
Xxxxxxxx 00 at a time when the remaining portion of Building 60 or
improvements thereon cannot reasonably be restored in Lessor's
reasonable judgment to a condition suitable for Lessee's occupancy for
the uses permitted by this Lease within thirty (30) normal eight-hour
working days under all laws and regulations then applicable; or
(iii) Less than thirty-three percent (33%) of the ground area of
Building 60 in such a manner that Lessee is substantially prevented
from carrying on operations of a permitted use under this Lease on the
remaining portion of the Premises.
(iv) If Building 56 or any portion thereof is taken by
condemnation, Lessor shall provide Lessee substantially similar office
space, reasonably acceptable to Lessee, elsewhere on the Complex.
(b) Partial Condemnation Defined: The term "partial condemnation" as
used in this section shall mean any condemnation of a portion of the
Premises that is not a total condemnation under Section 20(a) of this
Lease.
(c) Termination for Total Condemnation: In the event of a total
condemnation of the Premises during the term of this Lease, this Lease
shall terminate without further notice as of 12:01 A.M. on the date that
Lessee surrenders the Premises as a result of the order or decree of
condemnation ("Surrender Date") All rent payable under this Lease shall be
prorated as of 12:01 A.M. on said date and a prompt refund or payment of
rent for the unexpired period of this Lease shall be made by Lessor to
Lessee. On the making of that rent adjustment, both Lessor and Lessee will
be released and discharged from any and all further obligations under this
Lease.
(d) Effect of Partial Condemnation: In the event of a partial
condemnation of the Premises, this Lease shall terminate as to the portion
of the Premises taken on Surrender Date, but shall remain in full force and
effect as to the remainder of the Premises; provided, however, that
promptly after the Surrender Date, Lessor shall restore, at Lessor's own
cost and expense, the improvements on the remainder of the Premises to a
condition making the Premises tenantable by Lessee for the uses permitted
by this Lease. Any rent payable under this Lease after the Surrender Date
shall be reduced by the percentage the ground area of the portion taken by
eminent domain bears to the total ground area of the Premises on the date
of this Lease. In addition, the rent payable under this Lease shall be
further abated during the time and to the extent Lessee is prevented from
occupying all of the remainder of the Premises by the work of restoration
required by this section to be performed by Lessor.
(e) Lessor's Power to Sell in Lieu of Condemnation: Lessor may,
without any obligation or liability to Lessee and without affecting the
validity or continuation of this Lease other than as expressly provided in
this section, agree to sell or convey to the condemnor, without first
requiring that an action or proceeding for condemnation be instituted or
tried, that portion of the Premises sought by the condemnor, free from this
Lease and the rights of Lessee in the Premises other than as provided in
this Section 20.
(f) Condemnation Award: All compensation and damages awarded or
paid for the condemnation of the Premises or any portion of the Premises,
or for any sale in lieu of condemnation as authorized by Section 20(e)
above, shall, except as otherwise expressly provided in this section,
belong to and be the sole property of Lessor. Lessee hereby assigns to
Lessor any claim Lessee might have except for enforcement of this provision
against Lessor, the leased Premises, or condemnor for diminution in value
of the leasehold estate created by this Lease or the value of the unexpired
term of this Lease; provided, however, that Lessee is entitled to seek to
recover from the condemnor, but not from Lessor:
(i) The cost of removing any trade fixtures, furniture, or
equipment from the portion of the Premises taken by condemnation;
(ii) The value of any improvements installed by Lessor on the
portion of the Premises taken by condemnation that Lessee has a right
to remove under this Lease but that Lessee elects not to remove; and
(iii) The then amortized value of all improvements made by Lessee
on the portion of the Premises taken by condemnation that could not be
removed by Lessee on expiration of this Lease because of provisions of
this Lease.
21. DEFAULT:
Lessor will provide Lessee advance written notice in the event of any
default. Lessee will have ten (10) days to cure said default in the event of a
monetary default, and thirty (30) days to cure said default in the event of a
non-monetary default or such longer period as may be necessary to cure such
non-monetary default if not reasonably susceptible of cure within thirty (30)
days provided that Lessee diligently and continuously prosecutes such cure to
completion. Any one or more of the following, if not cured following notice by
Lessor within the periods specified in the foregoing sentence, will constitute
an event of default by Lessee hereunder, if Lessee during the Term:
a) Does not pay in full within ten (10) days after notice is given of
all base rent, additional rent, expenses and charges due under this Lease;
or,
b) Violates, fails to perform, or otherwise breaches any term,
covenant, or condition of this Lease and the same is not cured after notice
thereof; or,
c) Permits leasehold estate or any property of Lessee to be exposed
for sale or judgment or execution process by sheriff, marshal, or
constable; or,
d) Becomes insolvent, makes an assignment for the benefit of
creditors, is adjudicated bankrupt, files a xxxx in equity, or otherwise
initiates proceedings for the appointment of a receiver of its assets,
files a voluntary petition under the provisions of the United States
Bankruptcy Court or under the insolvency laws of any state, or has an
involuntary petition filed against it, which involuntary petition is not
discharged within ninety (90) days of filing; or,
e) Records or attempts to record this Lease in any office of public
recording; or,
f) Assigns or sublets this Lease, except as provided herein; or,
g) Fails to move into or take possession of the Leased Premises upon
commencement of the Term.
h) Fails to abide by the Hazardous Materials storage, handling, and
discharge requirements set forth in Section 25 herein.
22. REMEDIES UPON EVENT OF DEFAULT:
Upon the occurrence of an event of default, Lessor may terminate Lessee's
right to possession of the Premises at any time by written notice to Lessee. If
the Lessor terminates this Lease as herein provided, Lessor may retake
possession, or pursue any other remedy afforded by law, provided that such
default and all other defaults at the time existing have not been fully cured,
and all reasonable expenses and costs incurred by Lessor, including all
reasonable attorneys' fees, in connection with enforcing this Lease, shall not
have been fully paid.
Any such termination shall apply to any extension or renewal of the term
herein demised, and to any right or option on the part of Lessee that may be
contained in this Lease or any agreement. Following an event of default as
defined herein or abandonment of the leased Premises by the Lessee, in addition
to all other remedies, Lessor shall have the option to declare immediately due
and payable the entire base rent, and such shall then become immediately due and
payable, including all applicable sales tax.
Nothing herein contained shall be construed as precluding Lessor from
having such remedy as may be and become necessary in order to preserve Lessor's
right or interest in the leased Premises and in this Lease, even before the
expiration of the grace or notice periods provided for in this Lease, if under
particular circumstances then existing the allowance of such grace or the giving
of such notice will prejudice or will endanger the rights and estate of Lessor
in this Lease and in the leased Premises.
23. OPTION TO RENEW:
Provided no event of default exists and is continuing at the time of giving
notice of Lessee's exercise of its option, Lessor grants to Lessee an option to
renew the Lease for six (6) additional three (3) year periods, commencing at the
close of the initial lease Term and each succeeding option period respectively.
24. OPTION TO EXPAND:
Provided no event of default exists and is continuing at the time of giving
notice of Lessee's exercise of its option, Lessor grants to Lessee, on July 3,
2000, an option to expand the leased Premises to include the 2,533 square foot
portion of Building 56 presently occupied by Lessor's calibration laboratory as
identified on Exhibit "C". Lessee shall give Lessor ninety (90) days written
notice of its intent to exercise this option. The cost of reconfiguring said
portion of Building 56 to suit Lessee's needs shall be at Lessee's sole expense.
If Lessee does not exercise this option on July 3, 2000, the next time it may be
exercised is on July 3, 2001 and
every subsequent anniversary thereof, if not already exercised, until the
termination date of this Lease as specified in Section 2 herein.
Upon the exercise of this option, the monthly base rent shall be increased
to reflect the total rentable square footage of Building 56 to be occupied by
Lessee, which is 7,708 square feet (95%). The 400 square-foot Communications
Equipment Room shown on Exhibit "C" is excluded from this Option, as set forth
in Section 15 herein. Lessor's employees, agents, and contractors shall be
allowed unrestricted access to and use of the hallway running east-west through
Building 56 for purposes of traversing the Complex.
25. HAZARDOUS MATERIALS:
Lessee shall not use, generate, manufacture, produce, store, release,
discharge, or dispose of, on, under or about the Premises or any part of the
Complex, or transport to or from the Premises or any part of the Complex, any
Hazardous Materials or allow its employees, agents, contractors, invitees or any
other person or entity to do so except in material compliance with all Federal,
state and local laws, regulations and ordinances. The term "Hazardous Materials"
shall include without limitation:
(a) Those substances defined as a "Hazardous Substance" under Section
1.1 of the Asset Purchase Agreement;
(b) Those substances included within the definition of "hazardous
substances", "hazardous materials", "toxic substances", or "solid wastes"
under CERCLA, RCRA, and the Hazardous Materials Transportation Act, 49
U.S.C. ss. 1801 et seq., and in the regulations promulgated pursuant to
said laws.
Lessee hereby acknowledges receipt of and agrees to comply with Lessor's
Stormwater Pollution Prevention Plan for the handling and storage of Hazardous
Materials. In addition to the foregoing, Lessee further agrees that except as
previously disposed of in the conduct of the Photomask Business by Lessor
without material variation, without Lessor's prior written consent which may be
given or withheld in Lessor's sole discretion, only ordinary domestic sewage is
permitted to be put into the sanitary waste drains of the Premises.
So long as the Photomask Business operations carried on by Lessee are
conducted substantially in the same way that Lessor conducted the Photomask
Business prior to the Closing Date, Lessee's industrial wastewater will be
treated in Lessor's wastewater treatment system and the effluent from that
system will be disposed of in Lessor's deep well. If Lessee desires to put any
substances other than what was disposed of prior to the Closing Date by Lessor
in the industrial wastewater drains, it shall first submit to Lessor a complete
description of each such substance, including its chemical composition, and a
sample of such substance
suitable for laboratory testing. Lessor shall properly determine whether or not
the substance can be deposited into the drains and its determination shall be
absolutely binding on Lessee. Upon demand, Lessee shall reimburse Lessor for the
reasonable expenses incurred by Lessor in making such determination. Any change
in the type or kind of chemicals used by Lessee or a material change in the
volume of effluent produced by Lessee must first be approved in writing by
Lessor. Lessee must furnish Material Safety Data Sheets with any new chemicals
approved for use by Lessor.
Regardless of whether Lessor approves of Lessee's use, storage or disposal
of Hazardous Materials, Lessee shall be liable to Lessor for and indemnify and
hold Lessor harmless against all direct damages (including, but not limited to,
investigation, remedial costs, fines, and judgments), liabilities and claims to
the extent arising out of Lessee's activities associated with storing, handling,
using, or disposing of Hazardous Materials on the Complex. In the event Lessee's
activities with Hazardous Materials create a contamination problem on or
adjacent to the Premises or Complex, Lessee shall promptly commence
investigation and remedial activities to remedy the problem. If appropriate or
required by law, these activities shall be conducted in conjunction with
Federal, state and local oversight and approvals and in accordance with
applicable government regulations.
Lessee agrees immediately to report to Lessor any unlawful and material
release on or adjacent to the Premises or Complex by Lessee of any Hazardous
Materials in order to allow Lessor's Emergency Response Team ("ERT") to respond
to such release. Lessee and Lessee's employees shall follow directions from the
incident commander of Lessor's ERT in responding to such release. In addition,
Lessee shall provide Lessor with copies of any and all correspondence between
Lessee and any environmental regulatory agencies of any federal, state or local
governmental authorities relating to a violation or alleged violation of
environmental laws, rules or regulations by Lessee at the Premises. If Lessee
performs or causes to be performed any environmental testing of the Premises,
Lessee shall provide Lessor with a complete copy of the results of any such
tests and any reports analyzing such results. Any testing required by an
environmental regulatory agency because of a permit modification due to Lessee's
operations shall be at Lessee's expense.
Lessor shall have the right to enter on the Premises and any part thereof,
after reasonable notice and at reasonable times during normal business hours,
for the purpose of performing any of the work for which Lessor is responsible
under the Lease, or to engage in any other activities deemed reasonably
necessary by Lessor to ensure the compliance of the Premises with applicable
environmental laws and regulations, including the performance of any such
activities required to be performed by Lessee hereunder or under applicable laws
or regulations, following reasonable notice and an opportunity to Lessee to
cure, if appropriate in the light of
the circumstances. In the event of a release or other environmental emergency at
the Premises Lessor shall have the right to enter the Premises for purposes of
responding to such release or emergency without giving Lessee notice in advance.
Lessor reserves the right to immediately stop any wrongful or unlawful discharge
by Lessee.
26. INDEMNIFICATION:
Lessee shall indemnify and hold Lessor harmless from and against any claims
arising from Lessee's use of the Premises or from the conduct of Lessee's
business or from any activity, work or things done, permitted or suffered by
Lessee in or about the Premises or elsewhere, including, but not limited to,
releases of Hazardous Materials or a violation of environmental laws. Lessee
shall further indemnify and hold harmless Lessor from and against any claims
arising from any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease, and Lessee hereby
waives all claims in respect thereof against Lessor.
Lessee shall indemnify and save Lessor harmless from any and all direct
liability, loss, damage, expense, causes of action, suits, claims, or judgments
arising from injury to person or property resulting from or based upon the
actual use of the Complex or Premises by Lessee's employees, agents,
contractors, or guests, and shall, at its own cost and expense, defend any and
all suits which may be brought against Lessor, either alone or in conjunction
with others upon any such liability or claim and shall satisfy, pay and
discharge any and all judgments and fines that may be recovered against Lessor
in any such action, provided that Lessor shall give Lessee prompt written notice
of any such claim or demand.
Lessor shall indemnify and hold Lessee harmless against all direct damages
(including investigation and remedial costs), liabilities and claims arising out
of any and all pre-Commencement Date activities related to the Premises
associated with Hazardous Materials or a violation of environmental laws.
No indemnity provided by Lessee to Lessor hereunder shall apply to the
extent that the applicable claim, expense, liability, loss, damage, cause of
action, suit or judgment is caused by the negligence or willful misconduct of
Lessor, its agents or employees.
27. ABANDONMENT OF PREMISES:
Lessee shall not vacate or abandon the Premises at any time during the term
hereof for a period exceeding 90 days, and if Lessee shall abandon or vacate the
Premises, or be dispossessed by process of law, or otherwise, any personal
property belonging to Lessee left upon the Premises shall be deemed to be
abandoned, at the option of Lessor. All rent due under the remaining term of
this Lease shall be due and payable immediately.
28. ASSIGNMENT AND SUBLETTING:
Lessee shall not assign this Lease, or any interest therein, and shall not
sublet the Premises, or any part thereof, or any right or privilege appurtenant
thereto, or suffer any other person (the agents and servants of Lessee excepted)
to occupy or use the Premises, or any portion thereof, without the written
consent of Lessor first had and obtained, except that Lessee may sublet office
space to their Sales Representatives for a term consistent with the Term of this
Lease, subject to the rights of Lessor and obligations of Lessee in this Lease.
Should Lessor cancel this Lease as provided in Section 29 herein, Lessee must
immediately cancel the sublease with the Sales Representative. Lessor shall not
be responsible to Lessee's Sales Representatives in any way for exercising the
option to cancel.
The consent to this or any other assignment, subletting, occupation or use
by any other person, shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation or use by another person. Any such assignment
or subletting without such consent shall be void, and shall at the option of
Lessor, terminate this Lease. Notwithstanding the foregoing, Lessee may assign
without the prior consent of Lessor, its rights hereunder to any wholly-owned
subsidiary or Affiliate of Align-rite International, Inc., or to any
post-Closing purchaser(s) of all of the capital stock of Align-Rite
International, Inc. or of substantially all of its assets, and except that
Lessor may assign, without the prior consent of Lessee, its rights hereunder to
any wholly-owned subsidiary or Affiliate of Xxxxxx Corporation or to any
post-Closing purchaser(s) of substantially all of the Semiconductor Business
Unit of Xxxxxx Corporation. Notwithstanding the above, Xxxxxx covenants and
agrees that in the event it sells all or substantially all of its assets related
to its semiconductor business (including, but not limited to, its June 3, 1999
announced sale of its semiconductor business to a subsidiary of Sterling Holding
Company, Citicorp Venture Capital investment portfolio company), it shall
require as a condition of completion of such transaction that the purchaser of
such assets, as well as any successors of any such purchaser, enters into an
express assumption of this Agreement, as if such purchaser or such successor
were the original party to this Agreement, and the form of any such assumption
agreements shall be reasonably acceptable to Align-Rite. In the event of any
such assignments, Xxxxxx shall be deemed to have guaranteed the performance of
such purchaser's or successor's obligations hereunder and be responsible
therefor. Align-Rite covenants and agrees that in the event it sells all or
substantially all of the Business Assets, it shall require that the purchaser of
such assets, as well as any successors of any such purchaser, enters into an
express assumption of this Agreement, as if such purchaser or such successor
were the original party to this Agreement, and the form of any such assumption
agreements shall be reasonably acceptable to Xxxxxx. In the event of any such
assignments, Align-Rite shall be deemed to have guaranteed the performance of
such purchaser's or successor's obligations hereunder and be responsible
therefor.
In the event Lessor disposes of the Complex or that portion containing the
Premises, Lessor may assign its rights and delegate its obligations under this
Lease to the purchaser without consent of the Lessee, which purchaser shall be
bound by this Lease, including the obligations of the Lessor hereunder, provided
that such terms of assignment are accepted in writing by the purchaser.
29. OPTION TO CANCEL:
Lessor agrees that Lessee may cancel its obligations under this Lease at
the beginning of the twenty-fifth (25th) month of the Term hereof after
providing Lessor with ninety (90) days written notice of Lessee's intent to
cancel. Lessor also agrees that Lessee may cancel its obligations under this
Lease at the beginning of the sixty-first (61st) month of the Term hereof after
providing Lessor with one hundred eighty (180) days written notice of Lessee's
intent to cancel. This option may also be exercised at the beginning of each
successive thirty-six (36) month period (e.g. 97th month, 133rd month, 169th
month, etc.) thereafter, including all renewal option terms, upon Lessee giving
Lessor one hundred eighty (180) days notice of its intent to cancel. Upon
exercise of this option, Lessee shall pay Lessor the amount of four (4) times
the monthly rental for the month in which notice of cancellation was given,
payable upon notification to Lessor of Lease cancellation, as consideration for
Lessor's cancellation of the Lease Agreement between the parties. Lessee shall
vacate the Premises promptly within ninety (90) days following notification to
Lessor hereunder, and in the event Lessee does not vacate promptly, the rental
shall continue to be payable in accordance with the Lease, without credit for
said payment of four times the monthly rental, until such time as Lessee vacates
the Premises. Lessee shall vacate the Premises in the condition required under
Section 40 of this Lease.
Lessee agrees that Lessor may cancel its obligations under this Lease at
the beginning of the twenty-fifth (25th) month of the Term hereof after
providing Lessee with ninety (90) days written notice of Lessor's intent to
cancel. Lessee also agrees that Lessor may cancel its obligations under this
Lease at the beginning of the sixty-first (61st) month of the Term hereof after
providing Lessee with one hundred eighty (180) days written notice of Lessor's
intent to cancel This option may also be exercised at the beginning of each
successive thirty-six (36) month period (e.g. 97th month, 133rd month, 169th
month, etc.)thereafter, including the renewal option terms, upon Lessee giving
Lessor one hundred eighty (180) days notice of its intent to cancel. Upon
exercise of this option, Lessor shall pay Lessee the amount of four (4) times
the monthly rental for the month in which notice of cancellation was given,
payable upon notification to Lessee of Lease cancellation, as consideration for
Lessee's cancellation of the Lease Agreement between the parties. Upon
cancellation of this Lease by either party, Lessor shall have, and Lessee hereby
grants to Lessor, the option to repurchase all fixtures and improvements as set
forth in Schedule 2.1(a)(i) Attachment V (excluding the Exide 150 System and the
Generator/Fuel system) of the Asset Purchase Agreement attached to the real
property at their fair market value.
30. COMPLIANCE WITH LAW:
Lessee shall, at Lessee's expense, comply promptly and materially with all
applicable statutes, ordinances, rules, regulations, orders, covenants and
restrictions of record, and requirements in effect during the term or any part
of the term hereof, regulating the use by Lessee of the Premises. Lessee shall
not use or permit the use of the Premises in any manner that will create a waste
or a nuisance or unreasonably disturb use of the adjacent premises.
31. HOLDING OVER:
Any holding over after the expiration of this Lease, with the consent of
Lessor, shall be construed as a month-to-month tenancy at the then existing
rental rate. If Lessee fails without the consent of Lessor to vacate the
Premises at the expiration of this Lease or any extension period thereof, if
extended, then Lessee shall pay Lessor at 150% of the then existing rental rate
for the time Lessee thus remains in possession and, in addition thereto, shall
be responsible for and reimburse Lessor for all direct damages sustained by
Lessor by reason of Lessee's retention of possession. The provisions of this
section do not exclude Lessor's rights of re-entry or any other right or remedy
of Lessor hereunder.
32. LESSOR'S RIGHT TO ENTRY AND INSPECTION:
Lessee shall permit and shall cooperate with Lessor or Lessor's agents to
enter upon the Premises at reasonable times and upon reasonable notice, for the
purpose of inspecting and/or repairing the same, and during the last six months
of the Term, will permit persons desiring to purchase or lease the same to
inspect the Premises thereafter upon reasonable notice to Lessee, so long as
they do not disrupt Lessee's business activities.
Lessor reserves the right to retain at all times pass keys to the Premises
and, at any time and without notice in the event of an emergency, and otherwise
upon reasonable notice and at reasonable times, to enter onto the Premises and
any buildings or other improvements of the Premises to take any and all
measures, including inspections, repairs, alterations, additions and
improvements to the Premises, the buildings or to the land, as may be necessary
or desirable for the safety, protection or preservation of the Premises, the
buildings or the land or Lessor's interests, or as may be necessary or desirable
in the operation or improvement of the Premises, the buildings or the land or in
order to comply with all laws, order and requirements of governmental or other
authority.
33. LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS:
If Lessee shall at any time fail to make any payment or perform any other
act on its part to be made or performed under this Lease, Lessor may, but shall
not be obligated to, and without waiving or releasing Lessee from any obligation
of Lessee under this Lease, make such payment or perform such other act to the
extent Lessor deems desirable, and in connection therewith, pay expenses and
employ counsel. All sums so paid by Lessor and all penalties, interest, and
costs in connection therewith shall be due and payable by Lessee on the next day
after Lessee receives notice of any such payment by Lessor, together with
interest thereon at the rate of 12 percent (12%) per annum, or the highest legal
rate of interest, whichever is lower, from such date to the date of payment
thereof by Lessee to Lessor plus collection costs and attorneys' fees. Lessor
shall have the same rights and remedies for the non-payment thereof as in the
case of default in the payment of rent.
34. LATE PAYMENT CHARGES:
If the rent is not paid within ten (10) days from the date same is due,
Lessor, at its option, may charge a late fee of two percent (2%) per annum above
the prime interest rate published in the Wall Street Journal as of the date on
which payment was due, calculated on a daily basis. If the rent or any other
amount due hereunder becomes more than ninety (90) days past-due, Align-Rite
International, Inc. guarantees and will make payment of such amount on behalf of
Lessee.
35. LIENS:
Lessee shall keep the Premises free from any liens arising out of any work
performed, materials furnished, or obligations incurred by or on behalf of
Lessee. Lessee shall cause any such lien imposed to be released of record by
payment or posting of a proper bond within ten (10) days after imposition of the
lien or written request by Lessor, or furnish other assurances for payment
reasonably acceptable to Lessor. Lessee shall give Lessor written notice of
Lessee's intention to perform work on the Premises which might result in any
claim of lien at least twenty (20) days prior to the commencement of such work
to enable Lessor to post and record a notice of non-responsibility or other
notice deemed proper before the commencement of any such work.
36. NOTICES:
Any notice, demand, request, consent, approval or communication that either
party desires or is required to give to the other party under this Lease shall
be in writing and shall be served personally, delivered by independent messenger
or overnight courier service, or sent by U.S. certified mail, return receipt
requested, postage prepaid, in which event such notice shall be deemed to have
been given
when seventy-two (72) hours have elapsed from the time when such notice was
deposited in the United States mail, addressed to the other party at the address
set forth in the Lease Summary herein. Either party may change its address by
giving notice of same in accordance with this paragraph.
37. QUIET ENJOYMENT:
Upon the performance by Lessee of all of the agreements herein set forth,
Lessee may quietly hold and occupy the Premises without any interruption (except
as expressly contemplated by this Lease) by Lessor or persons claiming through
or under Lessor. Lessor's liability under the covenants of this section is
limited to the abatement of rent, unless Lessee is dispossessed by an act of bad
faith on the part of Lessor or persons claiming through or under Lessor, in
which case Lessee shall be also entitled to reimbursement for actual documented
moving expenses up to a maximum of $150,000, but shall not include any
consequential or incidental damages incurred by Lessee. Nonetheless, Lessor
shall not be barred from bringing any valid action on the Lease. Any lawsuit
brought by Lessor to enforce the terms of this Lease or seeking a declaration of
Lessor's rights pursuant to this Lease shall not be deemed a violation of this
clause.
38. SECURITY DEPOSIT:
No security deposit is required under this Lease.
39. SUCCESSORS AND ASSIGNS:
The covenants and conditions herein contained shall, subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors,
administrators and assigns of all of the parties hereto, and all of the
administrators and assigns of all of the parties hereto, and all of the parties
hereto shall be jointly and severally liable hereunder.
40. SURRENDER OF PREMISES:
On the last day of the Term hereof, or on any sooner termination, Lessee
shall surrender the Premises to Lessor in the same condition as when received,
ordinary wear and tear excepted, clean and free of debris. Lessee shall repair
any damage to the Premises occasioned by the installation or removal of Lessee's
trade fixtures, furnishings and equipment. Lessee shall remove the cleanroom.
Lessee shall decontaminate Building 60 and remove all hazardous substances,
toxic substances, solid waste and hazardous materials (as described in Section
25(b) herein) from all ceilings, floors and walls and any permanent structures
remaining within Building 60. In the event Lessee is surrendering the premises
due to Lessor's
expressed desire to reoccupy Building 60, Lessor shall be responsible for
decontaminating Building 60. Lessee shall remove all signs installed on the
Complex under Section 11 herein. Any clean-up and/or repairs required to restore
the Premises to the condition it was in at the commencement of this Lease not
performed by Lessee as of the last day of the term hereof shall be performed by
Lessor or Lessor's agent at Lessee's expense, unless otherwise provided herein.
41. TRANSFER OF PROPERTY BY LESSOR:
Except as may be provided in Section 28, in the event of any conveyance
of the Complex and assignment by Lessor of this Lease, Lessor shall be and is
hereby entirely freed and relieved of all liability under any and all of its
covenants and obligations contained in or derived from this Lease occurring
after the consummation of such conveyance and assignment so long as Lessor's
successor agrees and covenants to assume all of Lessor's obligations under this
Lease occurring after the consummation of such conveyance assignment.
42. ESTOPPEL CERTIFICATE AND SUBORDINATION:
a) Lessee shall upon Lessor's written request, promptly execute and
deliver to Lessor, without charge, a statement certifying that this Lease
is in full force and effect in its original form or is in full force and
effect as modified, and if applicable, the date to which the rent has been
prepaid and any other information as may be reasonably required by Lessor.
b) Lessee agrees to promptly execute and deliver to Lessor, upon
written request, without charge, in such form as may be reasonably required
by any prospective lender to Lessor, an instrument or instruments whereby
Lessee will agree to subordinate this Lease to the lien of said lender's
mortgage or deed of trust or other encumbrance, and in the case of
foreclosure will attorn to such mortgagee or holder acquiring title by
foreclosure; provided such new Lessor shall agree that Lessee may continue
to occupy the Premises in accordance with this Lease. As used herein, the
term "foreclosure" shall include both judicial proceedings and the exercise
of a power of sale under any mortgage or deed of trust without recourse to
judicial proceedings.
c) In the event such instruments are required for the sale of the
Complex, Lessee further agrees to promptly execute and deliver said
instruments to Lessor, upon which delivery Lessee shall attorn to the buyer
of the Complex.
43. GENERAL:
a) The meaning of terms not defined in this Lease shall be the same as
that defined in said Asset Purchase Agreement or Site Services Agreement.
b) The captions used in this lease are for the purpose of convenience
only and shall not be construed to limit or extend the meaning of any part
of this Lease.
c) Any executed copy of this Lease Agreement shall be deemed an
original for all purposes.
d) In case any one or more of the provisions contained herein shall
for any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect
any other provision of this Lease, but this Lease shall be construed as if
such invalid, illegal, or unenforceable provision had not been contained
herein.
e) When the context of this Lease requires, the neuter gender includes
the masculine, the feminine, a partnership, corporation, or joint venture,
and the singular includes the plural.
f) The waiver by Lessor of any breach of any term, condition, or
covenant of this Lease shall not be deemed a waiver of such provision or
any subsequent breach of the same or any other term, condition, or covenant
of this Lease.
g) The words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
44. GOVERNING LAW:
This Lease and the relationship between Lessor and Lessee shall be governed
by and construed in accordance with the laws of the State of Florida.
45. FORCE MAJEURE:
Neither party shall be liable in damages for any delay or default in the
performances of any or all obligations of this Lease, if such delay or default
is caused by conditions beyond its control, including, but not limited to: acts
of the elements, fires, explosions, floods or other casualties, governmental
orders or restrictions, and the inability despite diligent efforts to obtain
necessary governmental approvals. The party incurring the delay shall promptly
notify the other party in writing, and performance shall be extended one day for
each day of delay.
46. ENTIRE AGREEMENT:
This Lease, together with the Asset Purchase Agreement and the Site
Services Agreement, contains all of the terms, covenants and conditions agreed
to by Lessor and Lessee, integrates all discussions and understandings leading
up to this Agreement, supersedes all prior agreements between the parties
pertaining to the subject matter herein, and may not be modified orally or in
any manner other than by an agreement in writing signed by all of the parties to
this Lease or their respective successors in interest.
47. ATTORNEYS' FEES:
In case suit should be brought for recovery of the Premises, or for any sum
due hereunder, for the enforcement or interpretation of any of the terms or
conditions of this Lease, or because of any act which may arise out of the
possession of the Premises, by either party, the prevailing party shall be
entitled to all costs incurred in connection with such action, including a
reasonable attorney's fee.
48. AUTHORITY:
Lessee and Lessor warrant and represent that their respective
representatives executing this Lease each have the full power and authority to
execute this Lease on behalf of Lessee and Lessor, respectively, and that this
Lease, once executed by the signatory of Lessee or Lessor, as the case may be,
shall constitute a legal and binding obligation of that party and is fully
enforceable in accordance with its terms.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease Agreement as of
the day and year first written above.
Xxxxxx Corporation Align-Rite, Inc.
Semiconductor Business Unit
---------------------------- -------------------------------------
By: W. Xxxx Xxxxxx By: Xxxxx X. XxxXxxxxx
V.P.-GM Operations Chairman of the Board
As to the guarantees,
Align-Rite International, Inc.
------------------------------------
By: Xxxxx X. XxxXxxxxx
Title: Chairman of the Board and
Chief Executive Officer
[In the printed version of the document there appears a diagram
of the property captioned Exhibit A]
Exhibit B
Description of demised Premises:
Xxxxxxxx 00
Xxxxxxxx 00 is part of the Complex located at 0000 Xxxx Xxx Xxxx XX, Xxxx
Xxx, XX 00000, and is approximately fifty (50) feet north of Building 53, to the
east of Building 56 and to the west of Building 54 as shown on Exhibit "A". It
contains approximately 25,567 square feet of space, including 16,279 sq. ft.
under air, 4,883 sq. ft. of facilities service area on the first floor, and
4,405 sq. ft. of facilities service area on the second floor, and all
improvements thereon and appurtenances thereto.
Xxxxxxxx 00
Xxxxxxxx 00 is part of the Complex located at 0000 Xxxx Xxx Xxxx XX, Xxxx
Xxx, XX 00000, and is adjacent to the north side of Building 53, to the east of
Building 52 and to the west of Building 60 as shown on Exhibit "A". It contains
approximately 8,108 square feet, of which ITG uses 4,170 rentable square feet as
shown on Exhibit "C". The rentable square foot area does not include the 400
square-foot Communications Equipment Room (CER) identified on Exhibit "C".
Lessee shall have access to and use of the 000 xxxxxx-xxxx xxxx located on the
second floor of Building 56 as identified on Exhibit "D", but shall not be
charged for such usage.
Lessor will retain title to the Real Property on which Buildings 56 and 60
are located, including all fixtures, improvements, and appurtenances thereto.
Lessor will also retain title to the Real Property on which an entry-way to
building 60 is constructed as set forth in Section 13 herein as well as the Real
Property on which the six parking spaces designated for use by Lessee are
located as set forth in Section 12 herein.
[In the printed version there is a floor plan of Building 56
captioned Exhibit C]
[In the printed version there is a floor plan of Building 56
captioned Exhibit D]
Exhibit C
[Form of]
PHOTOMASK SUPPLY
AND STRATEGIC ALLIANCE AGREEMENT
BY AND AMONG
ALIGN-RITE INTERNATIONAL, INC.,
ALIGN-RITE, INC.
AND
XXXXXX CORPORATION
DATED JULY 2, 1999
TABLE OF CONTENTS
Page
ARTICLE 1 Definitions.............................................................1
ARTICLE 2 Supply of Products......................................................3
ARTICLE 3 Product Quality, Delivery, Service and Pricing..........................4
ARTICLE 4 New and Derivative Products.............................................6
ARTICLE 5 Product Orders..........................................................7
ARTICLE 6 Manufacture.............................................................9
ARTICLE 7 Delivery and Payment....................................................9
ARTICLE 8 Strategic Alliance, Consultation and Cooperation Arrangements..........10
ARTICLE 9 Termination Rights And Obligations Upon Termination....................10
ARTICLE 10 Warranties.............................................................11
ARTICLE 11 Dispute Resolution and Arbitration.....................................12
ARTICLE 12 Confidentiality........................................................14
ARTICLE 13 General................................................................14
13.1 Independent Contractors..........................................14
13.2 Amendments; Waivers..............................................14
13.3 Schedules; Exhibits; Integration.................................14
13.4 Force Majeure....................................................15
13.5 Assignment.......................................................15
ARTICLE 14 Notices................................................................15
PHOTOMASK SUPPLY AND STRATEGIC ALLIANCE AGREEMENT
This Supply Agreement is entered into as of July 2, 1999, (the "Effective
Date") by and among Align-Rite International, Inc., a California corporation
("Align-Rite"), and Align-Rite, Inc., a Florida corporation ("Sub"), on the one
hand, and Xxxxxx Corporation, a Delaware corporation ("Xxxxxx"), on the other
acting through its Semiconductor Business.
RECITALS
WHEREAS, Sub has purchased the Photomask business unit of Xxxxxx (the
"Photomask Business Unit") on the date hereof pursuant to the terms of that
certain Asset Purchase Agreement, dated as of even date, by and among Align-Rite
and Sub, on the one hand, and Xxxxxx on the other (the "Asset Purchase
Agreement").
WHEREAS, the parties hereto have agreed that Align-Rite will manufacture
and supply to Xxxxxx, and Xxxxxx will purchase exclusively from Align-Rite, 100%
of Xxxxxx' Photomask requirements in accordance with the terms of this Agreement
for a period of 10 years from the Effective Date (the "Term").
WHEREAS, Xxxxxx shall use its commercially reasonable efforts to promote
Align-Rite's Photomask products and services to (i) the merchant customers of
the Photomask Business Unit, (ii) Xxxxxx' joint venture partners, (iii) the
semiconductor foundry businesses utilized by Xxxxxx which will or are envisioned
to require the purchase of Photomask (as defined below) products and services,
and (iv) other companies and foundries within the influence or under the control
of Xxxxxx, in each case in accordance with the terms of this Agreement.
WHEREAS, Align-Rite shall strive to be the industry leader in quality,
delivery, service and price, and provide the benefit of such world class
operation to Xxxxxx.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises and covenants set forth below, the parties mutually agree as follows:
AGREEMENT
ARTICLE 1
Definitions
In this Agreement, unless the context otherwise requires, the following
expressions shall have the following meanings:
"Affiliates" shall mean (a) any company owned or controlled to the extent
of at least fifty percent (50%) of its issued and voting capital by a party to
this Agreement and any other company so owned or controlled (directly or
indirectly) by any such company or the owner of any such company, or (b) any
partnership, joint venture or other entity directly or indirectly controlled by,
controlling, or under common control of, to the extent of fifty percent (50%) or
more of voting power (or otherwise having power to control its general
activities), a party to this Agreement, but in each case only for so long as
such ownership or control shall continue;
1
"Align-Rite" means Align-Rite International Inc., a California corporation,
and each of its subsidiaries from time to time;
"Business Assets" means those assets previously owned and used by Xxxxxx to
manufacture Photomasks which were purchased by Align-Rite pursuant to the Asset
Purchase Agreement, including equipment, materials, know-how, work in progress,
related inventory and goodwill used by and associated with the Photomask
business unit of Xxxxxx;
"Cosmetic Defects" means particles, scratches, stains and/or imperfections
in or on the photomask quartz or glass substrate which are outside the active
patterned area on the photomask quartz or glass substrate which the customer
uses to transfer the circuit patterns onto the silicon wafer;
"Derivative Products" means any Photomask product built on a substrate,
then currently being produced by Align-Rite for other customers, which is
required by Xxxxxx from time to time, which is not currently on the Product and
Services Pricing Schedule, or which is either a tightening of specifications or
a relaxing of specifications of an existing Product.
"Facility Lease" means the lease of the Premises entered into among Sub and
Hams on the date hereof;
"Force Majeure" means, in relation to any party, circumstances beyond the
reasonable control of that party including, without limitation, acts of God,
acts of any governmental or super-national authority, war or national emergency,
riots, civil commotion, fire, explosion, flood, epidemic, lock-outs (whether or
not by that party), strikes and other industrial disputes (in each case, whether
or not relating to that party's work force);
"Mask Order" means a written order from an authorized originator employed
by Xxxxxx specifying the Product(s) required, applicable Specification(s),
amount of Product(s), date(s) required and delivery instructions (i.e. standard
or expedited);
"New Products" means any Photomask product, other than a Product or
Derivative Product, built on a substrate, required by Xxxxxx from time to time,
which is not currently being produced by Align-Rite for other customers, is not
currently on the Product and Services Pricing Schedule, and which is neither a
tightening of specifications nor a relaxing of specifications of an existing
Product.;
"Photomask Business Unit" has the meaning set forth in the recitals.
"Photomasks" means precision photographic quartz or glass plates containing
microscopic images of integrated circuits for use as master images to transfer
circuit patterns onto semiconductor wafers during the fabrication of integrated
circuits and other semiconductor products;
"Premises" means the real property located within the complex of buildings
known as the Semiconductor Sector located at 0000 Xxxx Xxx Xxxx, X.X., Xxxx Xxx,
Xxxxxxx 00000 and known as Building 60 and a portion of Building 56 used in the
Photomask Business
2
Unit, which are the subject of the Facility Lease entered into among Sub and
Xxxxxx on the date hereof;
"Product Period" means a continuous twelve month period, the first such
period ending on June 30, 2000.
"Products" means the Photomask products and services listed on the Product
and Services Pricing Schedule, as amended from time to time, or any other
Photomask Product or services purchased from Align-Rite by Xxxxxx;
"Product and Services Pricing Schedule" means a schedule listing the
Product and related services, together with the relevant Specification thereof
and applicable price based on anticipated demand for the Products, which
schedule shall be modified in accordance with Article 3 hereof (the first such
schedule being in the form set out in Schedule 1);
"Quarter" means a continuous calendar period of three months, the first
such period ending on September 30, 1999;
"Specification" means, in respect of any Product, the specification agreed
in writing between Xxxxxx and Align-Rite from time to time. A schedule for the
initial Specifications for Products, effective as of July 2, 1999, is noted in
and/or attached to Schedule 1;
"Standard Delivery" has the meaning specified in Section 5.5; and
"Term" shall mean the ten-year term of this Agreement
ARTICLE 2
Supply of Products
2.1 The parties hereby agree that, during the Term of the Agreement, Xxxxxx
shall satisfy 100% of its and its Affiliates' requirements for Photomasks, or
any other product with similar functional characteristics, solely through its
purchase of Products, Derivative Products and New Products from Align-Rite;
provided, however, that (i) Align-Rite manufactures and supplies such Products,
Derivative Products and New Products in accordance with the competitive
standards for quality, delivery, price and service as set forth in Article 3,
and (ii) such Products, Derivative Products and New Products are within the
capabilities of the Photomask technologies then utilized by Align-Rite.
2.2 Xxxxxx hereby confirms its intent to order and purchase during the
first three Product Periods, solely on its behalf or on behalf of its Affiliates
approximately Fifteen Million Dollars ($15,000,000) in aggregate of Products,
Derivative Products and New Products from Align-Rite at the Product prices set
forth on the Product and Services Pricing Schedule, as such Product and Services
Pricing Schedule is amended pursuant hereto.
2.3 Xxxxxx may purchase Photomasks from semiconductor foundry companies or
the Photomasks suppliers designated by such foundries, pursuant to its
agreements to facilitate the manufacturing of certain Xxxxxx integrated circuit
products at such foundries, but such
3
Photomask purchases shall not decrease the purchase requirements of Xxxxxx from
Align-Rite hereunder or Xxxxxx' obligations pursuant to Article 8.
ARTICLE 3
Product Quality, Delivery, Service and Pricing
3.1 Align-Rite shall be deemed to have satisfied the standards for quality
referred to in Section 2.1(i) herein by maintaining a 1% or less product return
rate during the first Product Period for non-compliance with Specifications,
excluding Cosmetic Defects which will be handled as a separate issue, as set
forth in applicable Mask Orders.
3.2 Align-Rite shall be deemed to have satisfied the standards for delivery
referred to in Section 2.1(i) herein by maintaining no less than a 90%
performance to schedule rating during the first Product Period with respect to
the products delivered pursuant to Section 5.5 herein.
3.3 Pricing.
3.3.1 Align-Rite shall be deemed to have satisfied the standards for
price referred to in Section 2.1(i) herein by satisfying the provisions set
forth in this Section 3.3.1. The parties agree that for the first Product
Period the price per unit for each Product shall be, so long as Xxxxxx and
Align-Rite are in compliance with Article 2 hereof, as set forth in the
Product and Services Pricing Schedule. Within 30 days prior to the end of
each Product Period, Align-Rite and Xxxxxx shall agree to adjust the
Product and Services Pricing Schedule in effect at such time to provide
that such new product prices for the ensuing Product Period shall be 100%
or less of the then current lowest Photomask prices provided by Align-Rite
to its best top twelve customers (excluding ASM Lithography The Netherlands
and Temic/Atmel-Europe) with comparable product specifications, annual mask
purchases, unit volume levels and cycletime requirements (provided,
however, that with respect to the E-Beam, 725_1XPA Quartz 7.25 x .150
Photomask Product, the purchase price for such product during the second
Product Period shall not increase by more than 10% from the purchase price
for such product as set forth in the Product and Services Pricing Schedule
and at no time during the Term of this Agreement shall the purchase price
for such product be greater than the prices provided to Align-Rite's best
top twelve customers (excluding ASM Lithography The Netherlands and
Temic/Atmel-Europe) with comparable product specifications, annual mask
purchases, unit volume levels and cycletime requirements) so long as (i)
Xxxxxx and Align-Rite are in compliance with Article 2 hereof, and (ii) the
aggregate product volume required by Xxxxxx meets a minimum targeted amount
to be mutually agreed upon by the parties during the fourth through the
tenth Product Periods. For the sole purpose of providing Hams with an
opportunity to confirm Align-Rite's compliance with this Section 3.3.1
during the last two months of each Product Period, Align-Rite shall, at a
frequency of no more than once per Product Period (commencing after the ten
month of the first Product Period) and upon thirty days written notice from
Xxxxxx and at Xxxxxx' cost, provide Xxxxxx' nominated accounting firm,
which shall be an accounting firm of national reputation, or reputable
4
semiconductor industry consultant, with access to and copies of all
invoices, records and other documents which relate to the Products and
Services Pricing for comparable products and services provided by
Align-Rite to its best top twelve customers (excluding ASM Lithography The
Netherlands and Temic/Atmel-Europe). Xxxxxx' nominated accounting firm or
reputable semiconductor industry consultant shall be bound by Article 12
hereof as if such nominated accounting firm or reputable semiconductor
industry consultant is a party hereto.
3.3.2 Beginning with the commencement of the second Product Period and
for each subsequent Product Period thereafter during the Term of this
Agreement, Align-Rite shall provide Xxxxxx with the following volume
discounts on Xxxxxx' purchases of Products, Derivative Products and New
Products aggregating in excess of $5 million in a single Product Period:
Amounts in Excess of Amount of
$5 million Discount
-------------------- ----------
$1 - $ 999,999 5.0%
$1,000,000 - $1,999,999 7.5%
Amounts in excess of 10.0%
$2,000,000
Any such discounts shall be caliculated by Align-Rite and confirmed by
Xxxxxx at the end of each applicable Product Period and shall be paid by
Align-Rite to Xxxxxx within thirty (30) days of the end of such Product
Period.
3.3.3 During the first eighteen months of the Term, Align-Rite shall
provide Xxxxxx with a 20% discount to the then current foundry Photomask
prices with respect to Photomasks manufactured by Align-Rite for use at
Xxxxxx' semiconductor foundry companies or the Photomask suppliers
designated by such foundries. For purposes of this Section 3.3.3, current
foundry Photomask prices shall be determined by Align-Rite's nominated
accounting firm, which shall be of national reputation or reputable
semiconductor consultant, through a review of Xxxxxx' purchase orders,
records and other documents which relate to such foundry Photomask products
for comparable product specifications, annual mask purchases, unit volume
levels and cycletime requirements. Following such eighteen-month period,
the products supplied by Align-Rite under this Section 3.3.3 shall be added
to the Product and Services Pricing Schedule and shall be treated as a
"Product" for purposes of this Agreement.
3.3.4 The price of the Products as set out in the Product and Services
Pricing Schedule is, and shall be, exclusive, of(i) any costs of transport
and insurance of the Products; and (ii) any value added tax or other
applicable sales tax or duty which may be chargeable in respect of the
manufacture and supply of the Products.
3.4 Align-Rite shall be deemed to have satisfied the standards for service
referred to in Section 2.1(i) herein during the first Product Period by
satisfying the provisions set forth in this Section 3.4. The parties agree that
5
at the commencement of the second Product Period, the parties will agree to a
set of written, reasonable, competitive, mutually agreeable, measurable and
quantifiable service goals.
3.5 Within thirty (30) days of the end of each Product Period during the
Term of this Agreement, an executive representative of each of Align-Rite and
Xxxxxx shall agree to a set of written, reasonable, competitive, mutually
agreeable, measurable and quantifiable goals with respect to product quality,
delivery and service for the ensuing Product Period. A status report on
Align-Rite's performance to goals shall be provided to Xxxxxx on a quarterly
basis. Align-Rite shall be deemed to have satisfied the standards for product
quality, delivery and service hereunder for such applicable Product Period by
materially satisfying such goals.
3.6 If, during the Term of the Agreement, Align-Rite does not satisfy the
provisions of Sections 3.1, 3.2, 3.3 and/or 3.4, Xxxxxx shall be entitled to
give written notice to Align-Rite within thirty (30) days of the relevant
event(s) specifying the details of such noncompliance and Align-Rite shall have
fifteen (15) calendar days following receipt of such notice to present Xxxxxx
with a plan and/or set of procedures to remedy such noncompliance. Such planned
remedies and/or procedures shall meet with Xxxxxx' satisfaction and Xxxxxx'
satisfaction shall not be unreasonably withheld. Such planned remedies and/or
procedures shall be completed within a subsequent forty five (45) calendar day
period. During the period of sixty (60) days or less following receipt by
Align-Rite of such noncompliance notice from Xxxxxx describing the points of
noncompliance, Xxxxxx shall have the right on an as necessary basis to procure
only such applicable Photomask products and services from third parties as it
deems necessary to support its semiconductor manufacturing activities which are
limited to the Products and or services covered in the notice of noncompliance.
Xxxxxx agrees to resume satisfying 100% of its and its Affiliates requirements
for Photomasks pursuant to Section 2.1 immediately upon Align-Rite's completing
its plan and/or set of procedures to Xxxxxx' reasonable satisfaction and such
reasonable satisfaction shall not be unreasonably withheld to remedy such
noncompliance. In the event that Align-Rite fails to remedy any and all such
noncompliance(s) during the sixty (60) day period from the date of notice of
such noncompliance by Xxxxxx then Xxxxxx shall have the right to procure from
third parties only such applicable non-compliant Photomask products or services
as the case may be on a continuous basis for the remainder of the Term of this
Agreement or until such time as Align-Rite may provide a written request that
Xxxxxx requalify Align-Rite for the supply of the applicable product(s) or
service(s) with such requalification not to be unreasonably delayed. Following
such requalification, Xxxxxx shall again be bound by Section 2.1.
ARTICLE 4
New and Derivative Products
4.1 In the event Xxxxxx anticipates a requirement for a Derivative Product,
it shall (i) notify Align-Rite as soon as practicable, (ii) provide Align-Rite
with the Specification for such Derivative Product together with an estimate of
its anticipated annual demand for such Derivative Product, and (iii) request
Align-Rite to provide a quotation for the manufacture and supply of such
Derivative Product.
6
4.2 Align-Rite shall provide a quotation for the Derivative Product at an
amount equal to 100% or less of the then current lowest Photomask prices
provided by Align-Rite to its best top twelve customers (excluding ASM
Lithography The Netherlands and Temic/Atmel-Europe) for comparable volume levels
and product specifications, and subject to verification as provided in Section
3.3, Hams shall place its orders for such Derivative Product.
4.3 Upon acceptance of the quotation by Xxxxxx and the placing of the first
order for any Derivative Product, such Derivative Product and the unit price
shall be added to the Product and Services Pricing Schedule and the Derivative
Product shall be treated as a "Product" for the purposes of this Agreement.
4.4 In the event Xxxxxx anticipates a requirement for a New Product, it
shall (i) notify Align-Rite as soon as practicable, (ii) provide Align-Rite with
the specification for the New Product together with an estimate of its
anticipated annual demand for such New Product, and (iii) request Align-Rite
provide a quotation for the manufacture and supply of such New Product.
4.5 Upon acceptance of the quotation by Xxxxxx and the placing of the first
order for any New Product, such New Product and the unit price shall be added to
the Product and Services Pricing Schedule and the New Product shall be treated
as a "Product" for the purposes of this Agreement.
4.6 In the event Xxxxxx does not accept the quotation given by Align-Rite,
it shall be entitled to obtain bona fide quotes from at least two nationally
recognized, third party manufacturers of Photomasks for the manufacture and
supply of the New Product and the provisions of Section 4.7 shall apply.
4.7 In the event that the average of the quotations received by Xxxxxx
pursuant to Section 4.6 results in a price for a New Product which is less than
the price quoted for such New Product by Align-Rite. If Align-Rite reduces its
quotation to the lower of the quotations received by Xxxxxx for said New
Product, then the provisions of Section 4.5 shall apply.
4.8 Xxxxxx shall provide Align-Rite's accounting firm with access to, and
copies of, all quotations obtained pursuant to Section 4.6 (and relevant
supporting documents) for verification in the same manner as Xxxxxx verification
under Section 3.3.
ARTICLE 5
Product Orders
5.1 Xxxxxx shall, no later than five (5) days before the beginning of each
month, give Align-Rite written notice of its anticipated requirements for
Products for the forthcoming month.
5.2 In order to facilitate the purchase of Products, all applicable
Business Units of Xxxxxx which require Photomask Products shall issue to
Align-Rite upon the execution of this Agreement, a blanket purchase order
regarding its anticipated Photomask requirements for the first Product Period.
At the end of the first Product Period new blanket purchase orders will be
issued for each succeeding Product Period.
7
5.3 All applicable Photomask Business Units of Xxxxxx which require
Photomask Products shall issue Mask Orders for Products in writing.
5.4 Align-Rite shall provide Xxxxxx with expedited Product services at an
additional charge, which shall be in addition to the Product prices set forth in
the Product and Services Pricing Schedule, and shall be payable by Xxxxxx in
accordance with Section 7.3. Such additional charge shall be calculated as
follows: (i) for 24-hour Product delivery cycletime, Xxxxxx shall pay Align-Rite
an additional amount equal to 65% of the Product prices set forth in the Product
and Services Pricing Schedule, as such Product and Services Pricing Schedule is
amended pursuant to Section 3.1, and (ii) for 48-hour Product delivery
cycletime, Xxxxxx shall pay Align-Rite an additional amount equal to 32.5% of
the Product prices set forth in the Product and Services Pricing Schedule, as
such Product and Services Pricing Schedule is amended pursuant to Section 3.1;
provided, however, that during the first Product Period of the Agreement,
Align-Rite shall provide Xxxxxx with such expedited product services at no
additional charge to Xxxxxx for up to an aggregate amount not to exceed $28,354
per month, which monthly amount shall be calculated using the formulae set forth
in items (i) and (ii) above.
5.5 Unless Xxxxxx requests expedited Product delivery service pursuant to
Section 5.4, Align-Rite shall provide its standard delivery ("Standard
Delivery") service pursuant to which it shall ship the first 2 Photomask levels
within three working days from receipt of the Mask Order and relevant data,
excluding the period from the time Align-Rite sends the completed array of
patterns to appear on the applicable Photomask product to the appropriate Xxxxxx
engineer until approval from said appropriate Xxxxxx engineer is received by
Align-Rite, and ship the remaining sequential Photomask levels at a rate of one
Photomask level per successive working day thereafter.
5.6 During the Term, Align-Rite shall use the Business Assets to provide
Xxxxxx' purchase orders and/or Mask Orders first priority among the other mask
orders received by Align-Rite from third parties so long as Xxxxxx is in
compliance with Article 2 hereof. In the event Align-Rite is unable to satisfy
Xxxxxx' purchase orders and/or Mask Orders using the Business Assets, Align-Rite
shall use commercially reasonable efforts to utilize such other Photomask
manufacturing facilities as are then owned by Align-Rite to satisfy the purchase
orders and/or Mask Orders in accordance with Standard Delivery or expedited
delivery, if applicable, or as otherwise may be agreed between the parties in
writing from time to time. If the purchase orders and/or Mask Orders for
Products exceed the output capacity of the Business Assets and the other
Photomask manufacturing facilities as are then owned by Align-Rite, Align-Rite
shall, as soon as practicable, notify Xxxxxx, and Align-Rite shall have the
right to contract with such third party Photomask manufacturers for a period of
time as agreed between the parties, until Align-Rite establishes the requisite
capacity.
5.7 During the Term, Align-Rite shall, as it deems appropriate, make the
capital expenditures at its own expense necessary to accommodate the manufacture
of all Photomask products required by Xxxxxx or its subsidiaries.
5.8 Cancellations and Schedule Changes.
8
5.8.1 Xxxxxx may cancel without charge any purchase order and/or Mask
Order or portion thereof for a Product at any time prior to the date on
which Align-Rite has started manufacturing such Product.
5.8.2 In the event Xxxxxx cancels a purchase order and/or Mask Order
for a Product after Align-Rite has purchased custom raw materials for such
Product, but before Align-Rite has started manufacturing such Product,
Xxxxxx shall reimburse Align-Rite for the cost of such custom raw
materials.
5.8.3 In the event Xxxxxx cancels a purchase order and/or Mask Order
for a Product after Align-Rite has started manufacturing the Product,
Xxxxxx shall pay one hundred percent (100%) of the price of such Product.
Payment of amounts due under this Section shall be made within thirty (30)
days of the date of each invoice.
ARTICLE 6
Manufacture
6.1 Each Product sold by Align-Rite to Xxxxxx pursuant to this Agreement
shall conform in all respects to its Specification as set forth on the
applicable purchase order and/or Mask Order.
6.2 Align-Rite and Xxxxxx shall consult with one another annually (or more
frequently if appropriate or desirable) during the Term in order to ensure that
the Specifications of the Products are mutually acceptable to both parties.
Align-Rite shall agree to any reasonable change to a Specification requested by
Xxxxxx provided that such change is capable of being made by Align-Rite and that
the price of the Product in question is increased or decreased to cover any
increased or decreased cost of manufacture.
ARTICLE 7
Delivery and Payment
7.1 Align-Rite shall use commercially reasonable efforts to fulfill Mask
Orders received from Xxxxxx for the Products on the date specified in the
purchase order and/or Mask Order and shall give Xxxxxx as much advance notice as
reasonably possible if despite its commercially reasonable efforts it is unable
for any reason to fulfill any purchase order and/or Mask Order on the specified
date.
7.2 Align-Rite shall deliver the Products to the designated ship address
set forth on each purchase order and/or Mask Order, FOB/CIP Align-Rite's
manufacturing sites located in the United States. Xxxxxx shall be responsible
for all shipping and other costs of delivery from the manufacturing sites
located in the United States. Align-Rite shall retain a security interest and
right of possession in the Products and Xxxxxx hereby grants such security
interest therein to Align-Rite until Xxxxxx makes full payment. Title and risk
of loss or damage to Products shall pass to Xxxxxx at the FOB/CIP point.
7.3 Xxxxxx shall pay for the Products which are supplied under this
Agreement in full within thirty (30) days of the date of the applicable invoice.
9
ARTICLE 8
Strategic Alliance, Consultation and Cooperation Arrangements
8.1 During the Term, Xxxxxx and Align-Rite shall make their respective
representatives available once every Quarter in order for:
8.1.1 Xxxxxx to advise Align-Rite of its Product development programs
and its anticipated needs for Products and New Products;
8.1.2 Align-Rite to inform Xxxxxx of its capacity and technological
capabilities relating to Photomask products and services offered by it from
time to time; and
8.1.3 Xxxxxx to review Align-Rite's performance in supplying Xxxxxx'
Product requirements.
8.2 During the Term, Xxxxxx shall use its commercially reasonable efforts
to maintain for Align-Rite the good will of the business of the Photomask
Business Unit at the Closing Date (including, without limitation, merchant
Photomask customers, suppliers and other parties having relationships with the
Photomask Business Unit).
8.3 During the Term, Xxxxxx agrees at Align-Rite's expense as set forth in
the Site Services Agreement to cooperate and to provide such assistance as
Align-Rite may require from time to time in maintaining the Photomask Business
Unit's current ability to manufacture Products which meet Department of Defense
("DOD") Secret and Top Secret status, provided such cooperation and assistance
is permitted under DOD and NSA regulations and is acceptable to DOD and NSA.
Xxxxxx shall allow Align-Rite the use of Xxxxxx' Classified Material Control
Center (CMCC) for processing, storing and shipping classified material pursuant
to DD254 requirements, if such use is permissible under DOC and NSA regulations.
8.4 During the Term of the Agreement, Xxxxxx shall use its commercially
reasonable efforts to promote Align-Rite's Photomask products and services to
(i) the merchant customers of the Photomask Business Unit, (ii) Xxxxxx' joint
venture partners, (iii) the semiconductor foundry businesses utilized by Xxxxxx
which will or are envisioned to require the purchase of Photomask products and
services, and (iv) other companies and foundries within the influence or under
the control of Xxxxxx, in each case in accordance with the terms of this
Agreement.
ARTICLE 9
Termination Rights And
Obligations Upon Termination
9.1 Unless otherwise terminated pursuant to the provisions of this Article
9, this Agreement shall continue in effect for the Term. The Term may be
extended on terms mutually acceptable to the parties.
9.2 This Agreement may be terminated at any time before the end of the Term
as follows and in no other manner:
9.2.1 By mutual agreement in writing by Align-Rite and Xxxxxx;
10
9.2.2 By Align-Rite upon Xxxxxx' failure to pay when due any amounts
required to be paid to Align-Rite after reasonable notice under this
Agreement;
9.2.3 By Xxxxxx upon the entry of any order for relief under any
provision of any applicable bankruptcy code in any bankruptcy proceedings
initiated by or against Align-Rite or the presentation of a petition or
convening of a meeting for the purpose of winding up Align-Rite's business,
or entering into liquidation whether compulsory or voluntarily, or
compounding with its creditors generally, or the appointment of a receiver
of any part of all of either party's assets, or either party taking or
suffering any similar action in consequence of debt;
9.2.4 By Align-Rite upon the entry of any order for relief under any
provision of any applicable bankruptcy code in any bankruptcy proceedings
initiated by or against Xxxxxx or the presentation of a petition or
convening of a meeting for the purpose of winding up Xxxxxx' business, or
entering into liquidation whether compulsory or voluntarily, or compounding
with its creditors generally, or the appointment of a receiver of any part
of all of either party's assets, or either party taking or suffering any
similar action in consequence of debt;
9.2.5 By Xxxxxx upon Align-Rite's material breach of any of the terms
or conditions of this Agreement after written notice thereof and a failure
by Align-Rite to then cure such breach within thirty (30) days except as
otherwise provided in Section 3.6; and
9.2.6 By Align-Rite upon Xxxxxx' material breach of any of the terms
or conditions of this Agreement after written notice thereof and a failure
by Xxxxxx to then cure such breach within thirty (30) days.
9.3 In addition to any other remedies available to Align-Rite, in the
event Align-Rite terminates the Agreement, it shall have the following
rights: (i) if the Product has been delivered, Align-Rite may recover,
together with any incidental damages, any unpaid portion of the purchase
price of the Product; and (ii) if the Product has not been delivered,
Align-Rite may withhold delivery of such Product.
9.4 The failure of either party to enforce any provision of this
Agreement shall not be deemed a waiver of such provision.
ARTICLE 10
Warranties
10.1 Xxxxxx shall as soon as practicable, and in any event within thirty
(30) working days of the delivery of a Product at its premises, notify
Align-Rite in writing of any noncompliance with applicable Specifications.
10.2 If Xxxxxx fails to give notice in accordance with Section 10.1, then
except in respect of any noncompliance with applicable Specifications which is
such that it would not be apparent upon a reasonable visual inspection, the
Product in question shall be conclusively presumed to be in all respects in
accordance with its Specification, and Xxxxxx shall be deemed to have accepted
11
the quality of such Product, and Align-Rite shall have no liability to Xxxxxx
with respect to that Product and the warranties made in Section 10.4 shall not
apply thereafter.
10.3 If Xxxxxx rejects any delivery of a Product which it believes is not
in accordance with its Specification, then Align-Rite shall as soon as
practicable and in any event within five (5) working days of being requested to
do so by Xxxxxx supply a replacement Product which is in accordance with its
Specifications or shall notify Xxxxxx that it is unable to do so whereupon
Xxxxxx shall be entitled to obtain such replacement Product from a third party.
10.4 Align-Rite warrants that Products delivered hereunder shall be free
and clear of liens and encumbrances arising from actions or inactions of
Align-Rite and shall have been manufactured to the applicable Xxxxxx
Specification. This warranty shall terminate in accordance with Section 10.2 or
for any noncompliance which is not apparent upon reasonable visual inspection
upon expiration of 135 calendar days following receipt by Xxxxxx or its designee
of a shipment. In the event a problem occurs or is discovered after receipt by
Xxxxxx, Align-Rite and Xxxxxx agree to discuss and resolve such problem in good
faith.
10.5 The liability of Align-Rite hereunder is solely and exclusively
limited to replacement, or repair, or credit of the purchase price, at Xxxxxx'
option, for any Product which is returned by Xxxxxx during the applicable
warranty period and which is found by Xxxxxx to be subject to adjustment under
this warranty.
10.6 THIS WARRANTY EXTENDS TO XXXXXX ONLY. THIS WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THIS WARRANTY
DOES NOT APPLY TO DEFECTS ARISING AS A RESULT OF XXXXXX' DESIGN OR FORMULA. IN
NO EVENT SHALL ALIGN-RITE BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES
DUE TO BREACH OF THIS WARRANTY. XXXXXX' SOLE REMEDY FOR ANY BREACH SHALL BE
LIMITED TO THE REMEDIES SET FORTH IN SECTION 10.5.
ARTICLE 11
Dispute Resolution and Arbitration
11.1 In the event that any dispute arises among the parties pertaining to
the subject matter of this Agreement, and the parties, through Align-Rite's
senior management and Xxxxxx' senior management are unable to resolve such
dispute within a reasonable time through negotiations and mediation efforts by
senior executives of both parties, such dispute shall be resolved as set forth
in this Article.
11.1.1 The following procedures may be initiated by written notice
("Dispute Notice") given by one party ("Claimant") to the other, but not
before thirty (30) days have passed during which the parties have been
unable to reach a resolution as described above. The Dispute Notice shall
be accompanied by (i) a statement of the Claimant describing the dispute in
reasonable detail and (ii) documentation, if any, supporting the Claimant's
position on the dispute. Within twenty (20) days after the other party's
12
("Respondent") receipt of the Dispute Notice and accompanying materials,
the parties shall submit the dispute to mediation in the Orlando, Florida
area under the rules of the American Arbitration Association. All
negotiations and mediation procedures pursuant to this paragraph 11.1.1
shall be confidential and treated as compromise and settlement negotiations
and shall not be admissible in any arbitration or other proceeding.
11.1.2 If the dispute is not resolved as provided in Section 11.1.1
within sixty (60) days after the Respondent's receipt of the Dispute
Notice, the dispute shall be resolved by binding arbitration. Within the
sixty-day period referred to in the immediately preceding sentence, the
parties shall agree on a single arbitrator to resolve the dispute. If the
parties fail to agree on the designation of an arbitrator within said
sixty-day period, the American Arbitration Association in the Orlando,
Florida area shall be requested to designate the single arbitrator. If the
arbitrator becomes disabled, resigns or is otherwise unable to discharge
the arbitrator's duties, the arbitrator's successor shall be appointed in
the same manner as the arbitrator was appointed.
11.1.3 Except as otherwise provided in this Article, the arbitration
shall be conducted in accordance with the Commercial Rules of the American
Arbitration Association, which shall be governed by the United States
Arbitration Act.
11.1.4 Any resolution reached through mediation and any award arising
out of arbitration (i) shall be binding and conclusive upon the parties;
(ii) shall be limited to a holding for or against a party, and affording
such monetary remedy as is deemed equitable, just and within the scope of
this Agreement; (iii) may not include special, incidental, consequential or
punitive damages; (iv) may in appropriate circumstances include injunctive
relief and (v) may be entered in court in accordance with the United States
Arbitration Act.
11.1.5 Arbitration shall not be deemed a waiver of any right of
termination under this Agreement, and the arbitrator is not empowered to
act or make any award other than based solely on the rights and obligations
of the parties prior to termination in accordance with this Agreement.
11.1.6 The arbitrator may not limit, expand or otherwise modify the
terms of this Agreement.
11.1.7 The laws of the State of Florida shall apply to any mediation,
arbitration, or litigation arising under this Agreement.
11.1.8 Each party shall bear its own expenses incurred in any
mediation, arbitration or litigation, but any expenses related to the
compensation and the costs of any mediator or arbitrator shall be borne
equally by the parties to the dispute.
11.1.9 A request by a party to a court for interim measures necessary
to preserve a party's rights and remedies for resolution pursuant to this
Article shall not be deemed a waiver of the obligation to mediate or of the
agreement to arbitrate.
13
11.1.10 The parties, their representatives, other participants and the
mediator or arbitrator shall hold the existence, content and result of
mediation or arbitration in confidence.
ARTICLE 12
Confidentiality
12.1 During the course of this Agreement each party may obtain possession
of information belonging to the other parties which contains confidential or
secret information (e.g. inventions, know-how, trade secrets, future product
plans). As far as such information is disclosed by one party to the other party
it shall be clearly labeled "Confidential" or the like.
12.2 The party which obtains possession of such confidential information
shall maintain all such information in confidence and shall not disclose it to a
third party without the prior written consent of the other party. These
non-disclosure obligations shall terminate ten (10) years after receipt of such
information.
12.3 These non-disclosure obligations shall not apply with respect to any
information which: (i) now or hereafter, through no act or failure to act on the
part of the obtaining party, becomes generally known or available; (ii) is known
by the party at the time of obtaining it from the other party; (iii) is
furnished to third parties by the party without restriction on disclosure; (iv)
is independently developed by the obtaining party; or (v) is furnished to the
obtaining party by a third party as a matter of right and without restriction on
disclosure. The obligations of this Article 12 shall survive the expiration or
any termination of this Agreement.
ARTICLE 13
General
13.1 Independent Contractors. Both parties are independent contractors
under this Agreement. Nothing contained in this Agreement is intended nor is to
be construed so as to constitute Align-Rite and Xxxxxx as partners, agents or
joint venturers with respect to this Agreement. Neither party hereto shall have
any express or implied right or authority to assume or create any obligations on
behalf of or in the name of the other party or to bind the other party to any
contract, agreement or undertaking with any third party.
13.2 Amendments; Waivers. This Agreement and any schedule or exhibit
attached hereto may be amended only by agreement in writing of the parties to
the Agreement. No waiver of any provision nor consent to any exception to the
terms of this Agreement or any agreement contemplated hereby shall be effective
unless in writing and signed by the party to be bound and then only to the
specific purpose, extent and instance so provided.
13.3 Schedules; Exhibits; Integration. Each Schedule and Exhibit delivered
pursuant to the terms of this Agreement shall be in writing and shall constitute
a part of this Agreement, although Schedules need not be attached to each copy
of this Agreement. This Agreement, together with such Schedules and Exhibits,
and the Asset Purchase Agreement constitutes the entire agreement among the
parties pertaining to the subject matter hereof and supersedes all prior
agreements and understandings of the parties in connection therewith, including,
but not limited to, the letter of intent dated April, 20, 1999, between Xxxxxx
and Align-Rite.
14
13.4 Force Majeure. No party to this Agreement shall be deemed to be in
breach of this Agreement or otherwise liable to any other party in any manner
whatsoever for any failure or delay in performing its obligations under this
Agreement due to Force Majeure. If a party's performance of its obligations
under this Agreement is affected by Force Majeure, then: (i) it shall give
written notice to the other parties, specifying the nature and extent of the
Force Majeure, as soon as reasonably practicable on becoming aware of the Force
Majeure and will at all times use its reasonable endeavors to mitigate the
severity of the Force Majeure; (ii) the date for performance of such obligation
shall be deemed suspended only for a period equal to the delay caused by such
event; and (iii) it shall not be entitled to payment from the other party in
respect of extra costs and expenses incurred by virtue of the Force Majeure
event.
13.5 Assignment. Neither Align-Rite nor Xxxxxx may assign this Agreement
without the prior written consent of the other, except that Align-Rite may
assign its rights hereunder to any wholly-owned subsidiary or Affiliate of
Align-Rite or to any post-Closing purchaser(s) of all of the capital stock of
Align-Rite or of substantially all of its assets, and except that Xxxxxx may
assign its rights hereunder to any wholly-owned subsidiary or Affiliate of
Xxxxxx or to any post-Closing purchaser(s) of substantially all of the
Semiconductor Business Unit of Xxxxxx. Notwithstanding the above, Xxxxxx
covenants and agrees that in the event it sells all or substantially all of its
assets related to its semiconductor business (including, but not limited to, its
June 3, 1999 announced sale of its semiconductor business to a subsidiary of
Sterling Holding Company, Citicorp Venture Capital investment portfolio
company), it shall require as a condition of completion of such transaction that
the purchaser of such assets, as well as any successors of any such purchaser,
enters into an express assumption of this Agreement, as if such purchaser or
such successor were the original party to this Agreement, and the form of any
such assumption agreements shall be reasonably acceptable to Align-Rite. In the
event of any such assignments, Xxxxxx shall be deemed to have guaranteed the
performance of such purchaser's or successor's obligations hereunder and be
responsible therefor. Align-Rite covenants and agrees that in the event it sells
all or substantially all of the Business Assets, it shall require that the
purchaser of such assets, as well as any successors of any such purchaser,
enters into an express assumption of this Agreement, as if such purchaser or
such successor were the original party to this Agreement, and the form of any
such assumption agreements shall be reasonably acceptable to Xxxxxx. In the
event of any such assignments, Align-Rite shall be deemed to have guaranteed the
performance of such purchaser's or successor's obligations hereunder and be
responsible therefor.
ARTICLE 14
Notices
14.1 Any notice or any other information required or authorized by this
Agreement to be given by any party to the other must be given in writing by U.S.
mail, facsimile or overnight courier to the other party at the address for
service notified in Section 14.3 or to such other address as any party may
notify to the others from time to time in writing as being the address for
service.
14.2 To be a valid and enforceable notice, evidence of receipt by the
recipient of such notice shall be required.
15
14.3 The addresses and contact numbers of those persons who are authorized
to accept service on behalf of the parties to this Agreement are set out below:
On behalf of Align-Rite and Sub to:
Mr. Xxxxx XxxXxxxxx
Xx. Xxxxx Xxxxxxxx
Align-Rite International, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
XXX
Telephone No: (000)000-0000
Facsimile No: (000)000-0000
With a copy to:
J. Xxx Xxxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone No: (000)000-0000
Facsimile No: (000)000-0000
On behalf of Xxxxxx to:
Xxxxxx Corporation
Semiconductor Sector
Attention: Xxxxxxx X. Xxxxxxxx
0000 Xxxx Xxx Xxxx X.X.
Mail Stop 00-000
Xxxx Xxx, XX 00000
Telephone No: (000) 000-0000
Facsimile No: (000) 000-0000
With a copy to:
Xxxxxx Corporation
Xxxxxx X. Xxxx
Vice President-Counsel
0000 Xxxx Xxx Xxxx X.X.
Mail Stop 00-000
Xxxx Xxx, XX 00000
16
Telephone No: (000)000-0000
Facsimile No: (000)000-0000
IN WITNESS WHEREOF, this agreement is entered into by duly authorized
representatives of the parties hereto on the date first above written.
ALIGN-RIGHT INTERNATIONAL, INC.,
a California corporation
By:
--------------------------------------
Xxxxx X. XxxXxxxxx
Chairman of the Board and Chief
Executive Officer
ALIGN-RITE, INC.,
a Florida corporation
BY:
--------------------------------------
Xxxxx X. XxxXxxxxx
Chairman of the Board
XXXXXX CORPORATION,
a Delaware corporation
BY:
--------------------------------------
X.X. Xxxxxx
Vice President-General Manager
Operations
17
Exhibit D
[Form of]
Site Services Agreement
by and among
Xxxxxx Corporation
Semiconductor Business Unit
and
Align-Rite, Inc.
This Site Services Agreement ("Agreement") is entered into this 2nd day of July,
1999 by and between Xxxxxx Corporation, a Delaware Corporation, acting through
its Semiconductor Business Unit ("Xxxxxx"), Align-Rite Inc., a Florida
Corporation, ("Align-Rite").
RECITALS
WHEREAS, Xxxxxx and Align-Rite have or will enter into a separate Asset
Purchase Agreement of even date herewith for the sale of certain assets to
Align-Rite in connection with Xxxxxx' Photomask Business; and
WHEREAS, Xxxxxx and Align-Rite have or will enter into a separate Lease
Agreement of even date herewith for the lease of facilities to Align-Rite used
in connection with Xxxxxx' Photomask Business; and
WHEREAS, Align-Rite desires to purchase certain services from Xxxxxx
pertaining to the operation of the Photomask Business in the leased facilities
and Xxxxxx is willing to provide these services.
AGREEMENT
In consideration of the premises, the mutual promises contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the parties
agree as follows:
1. SCOPE OF CONTRACT
Align-Rite hereby contracts with Xxxxxx to purchase the following services
from Xxxxxx, and Xxxxxx hereby agrees to provide Align-Rite with said services
through the action of employees of the Semiconductor Business Unit:
a) Facilities Systems/Equipment Maintenance
b) Utilities
c) Training & Development
d) Calibration
e) Factory Control Systems & VMS Administration
f) Desktop Computing Services
g) Emergency Response Team
h) Occupational Health Services
i) Hazardous Waste Operations
j) Security
k) Purchasing, Stockroom, Receiving, Shipping, IQC
l) Telecommunications
m) Quality Engineering
n) Internal Quality Audit
2
2. TERM:
The term of this Agreement shall commence on July 3, 1999 and shall
continue in effect until either (a) the Lease Agreement expires or is cancelled,
or (b) this Agreement is terminated as provided in Section 8 herein, whichever
occurs first.
3. PAYMENT
Services will be billed to Align-Rite on a monthly basis. Services which
commence or end on other than the first or last day of the month, respectively,
shall be billed pro-rata accordingly. Align-Rite shall pay the invoiced amount
for the services provided within thirty (30) days from the date of Xxxxxx'
invoice. Any payment or part thereof remaining unpaid after thirty (30) days
shall, in the absolute discretion of Xxxxxx, carry interest thereon at the rate
of two percent (2%) per annum above the prime interest rate published in the
Wall Street Journal as of the date on which payment was due, calculated on a
monthly basis.
Payment made by check shall be drawn on a U.S. Bank. Alternatively, direct
wire payments shall be made to an account designated by Xxxxxx. In the event
payment becomes more than ninety (90) days past due, Align-Rite International,
Inc. agrees to pay for services rendered. Rates on the services provided to
Align-Rite are subject to review by Xxxxxx and may change on each anniversary of
this Agreement, except that if a utility rate changes, Xxxxxx shall adjust said
rate in the "Consumables (provided to Align-Rite by Xxxxxx) Section" on page 2
of Exhibit "A" hereto and the new rate shall become effective immediately and
shall be shown at the new rate on the next monthly invoice..
4. DESCRIPTION OF SERVICES
Xxxxxx agrees to provide the following services at the specified intervals
and cost in substantially the same manner as provided to Xxxxxx employees and
other buildings on the Complex. If a service provided to Xxxxxx employees or
other buildings on the Complex is modified, Xxxxxx reserves the right to modify
such service provided to Align-Rite accordingly.
a) Facilities Systems & Equipment Maintenance
Xxxxxx shall make available to Align-Rite maintenance and repair
services for the equipment and systems set forth in Exhibit "A". Xxxxxx shall
use its standard procedures for scheduling work, and shall use the same
workmanship levels and materials used for the adjacent buildings of the Complex
owned by Xxxxxx. Xxxxxx will provide coverage every day of the year except two
days, July 4th and December 23rd. In the event of an emergency, Xxxxxx will be
able to respond within two (2) hours.
The systems and equipment maintenance services for the Photomask
Business systems is divided into three programs: the Xxxxxx Preventive
Maintenance (HPM) Program, Contract Preventive Maintenance (CPM) Program, and
Time and Materials (T&M) Program as described in Exhibit "A". The HPM and T&M
Programs will be performed by Xxxxxx employees and/or their selected qualified
contractors, and the CPM Program will be performed by outside contractors who
specialize in the type of equipment and services set forth in Exhibit "A". Under
the HPM Program, Xxxxxx shall provide all the material and labor required to
maintain the systems identified in Exhibit "A" in good operating conditions.
This includes, but is not limited to, all the preventive maintenance and regular
repair.
Systems modifications, upgrades, equipment/tool installations, or other
work that might be requested by Align-Rite will be performed under the T&M
3
Program. The HPM, CPM and T&M hours and costs listed in Exhibit "A" are
estimates. Xxxxxx will xxxx Align-Rite based on actual hours expended and costs
plus applicable xxxx-ups as stated in Exhibit "A".
Align-Rite reserves the right to change the type of the maintenance
program on a piece of equipment, or to remove a piece of equipment from the
maintenance program after giving Xxxxxx thirty (30) days written notice. The
cost of the services shall be adjusted accordingly.
b) Utilities
Xxxxxx shall make available to Align-Rite metered electricity, nitrogen,
deionized water, and city water in accordance with the costs set forth in
Exhibit "A". Align-Rite shall pay a one-time charge not to exceed in the
aggregate thirteen thousand dollars ($13,000.00) for the purchase and
installation of all four meters. Xxxxxx will also provide clean, dry compressed
air in exchange for chilled water from Align-Rite to cool the Centac air
compressor owned and operated by Xxxxxx. In addition to the actual metered
amount for each utility, Align-Rite shall pay one hundred twenty-five dollars
($125.00) per month per each of the four utilities, which includes the
administrative costs for meter reading, maintenance, and billing.
c) Training & Development
Xxxxxx shall provide Align-Rite with general training and development
skills in accordance with the description and costs as set forth in Exhibits "B"
and "C". While Xxxxxx' standard policy is to require a minimum of five (5)
persons attending a training class before commencing with said training, Xxxxxx
will make available to Align-Rite the training classes listed on said exhibits
only without imposing a minimum number of attendees. Emergency Response Team
training and Occupational Health Services training are as set forth in Exhibits
"J" and "K", subject to the minimum five (5) person standard attendance policy.
Training may occur simultaneously with other Xxxxxx employees at such dates and
times established by Xxxxxx, or may occur at a separate time and date for
Align-Rite employees only.
d) Calibration
Xxxxxx shall provide Align-Rite with calibration and repair services for
equipment used in the Photomask Business in accordance with the costs set forth
in Exhibit "D" on the equipment and schedules set forth in Exhibit "E".
e) Factory Control Systems & VMS Administration
Xxxxxx shall provide Align-Rite with Factory Control System and VMS
administration services in accordance with the description and costs as set
forth in Exhibit "F".
f) Desktop Computing Services
Xxxxxx shall provide Align-Rite with Desktop Computing Services ("DCS")
in accordance with the description, purpose and frequency as set forth in
Exhibit "G", for assets listed in Exhibit "H" at the cost listed in Exhibit "I".
If Align-Rite deviates from the standard software support model used by all
other Xxxxxx employees, DCS reserves the right to discontinue support services
immediately.
4
g) Emergency Response Team
Xxxxxx shall provide Align-Rite with Emergency Response Team ("ERT')
services in accordance with the description and costs as set forth in Exhibit
"J".
h) Occupational Health Services
Xxxxxx shall provide Align-Rite with Occupational Health Services in
accordance with the description and costs as set forth in Exhibit "K".
i) Hazardous Waste Operations
Xxxxxx shall provide Align-Rite with Hazardous Waste Operation services
in accordance with the description and costs as set forth in Exhibit "L".
j) Security
Xxxxxx shall provide Align-Rite with Security services in accordance
with the description as set forth in Section 9 of the Lease Agreement and cost
as set forth in Exhibit "M" of this Agreement.
k) Purchasing, Stockroom, Receiving, Shipping, IQC
Xxxxxx shall provide Align-Rite with Purchasing, Stockroom, Receiving,
Shipping, and Incoming Quality Control (IQC) in accordance with the description
and costs as set forth in Exhibit "N".
l) Telecommunications
Xxxxxx shall provide Align-Rite with Telecommunication services in
accordance with the description and costs as set forth in Exhibit "O".
m) Quality Engineering
Xxxxxx shall provide Align-Rite with Quality Engineering services to
Align-Rite in accordance with the description and costs as set forth in Exhibit
"P".
n) Internal Quality Audit
Xxxxxx shall provide Align-Rite with Internal Quality Audit services in
accordance with the description and costs as set forth in Exhibit "Q".
5. GENERAL
a) The meaning of terms not defined in this Site Services Agreement shall
be the same as that defined in said Asset Purchase Agreement or Lease
Agreement.
b) The captions used in this agreement are for the purpose of convenience
only and shall not be construed to limit or extend the meaning of any
part of this Agreement.
c) All Exhibits attached hereto are incorporated herein by reference.
d) In case any one or more of the provisions contained herein shall for
any reason be held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal, or unenforceable provision
had not been contained herein.
5
e) When the context of this Agreement requires, the neuter gender
includes the masculine, the feminine, a partnership, corporation, or
joint venture, and the singular includes the plural.
f) The waiver by either party of any breach of any term, condition, or
covenant of this Agreement shall not be deemed a waiver of such
provision or any subsequent breach of the same or any other term,
condition, or covenant of this Agreement.
g) The words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
6. CANCELLATION OF SERVICES
Either Align-Rite or Xxxxxx may cancel any one or more of the
aforementioned services other than utilities with ninety (90) days written
notice to the other party, except that maintenance services may be modified with
thirty (30) days notice as stated in Section 4(a) herein. Utility delivery and
termination is provided under the terms and conditions of Section 6 of the
Facility Lease Agreement.
7. SUCCESSORS AND ASSIGNS
The covenants and conditions herein contained shall, subject to the
provisions as to assignment, apply to and bind the heirs, successors, executors,
administrators and assigns of all of the parties hereto, and all of the
administrators and assigns of all of the parties hereto, and all of the parties
hereto shall be jointly and severally liable hereunder.
8. TERMINATION
In the event Xxxxxx or its successor ceases substantially all operations at
the Complex, Xxxxxx may terminate this Agreement in its entirety with one
hundred eighty (180) days written notice to Align-Rite.
9. ASSIGNMENT
Neither Align-Rite nor Hams may assign this Agreement without the prior
written consent of the other, except that Align-Rite may assign its rights
hereunder to any wholly-owned subsidiary or Affiliate of Align-Rite or to any
post-Closing purchaser(s) of all of the capital stock of Align-Rite or of
substantially all of its assets, and except that Xxxxxx may assign its rights
hereunder to any wholly-owned subsidiary or Affiliate of Xxxxxx or to any
post-Closing purchaser(s) of substantially all of the Semiconductor Business
Unit of Xxxxxx. Notwithstanding the above, Xxxxxx covenants and agrees that in
the event it sells all or substantially all of its assets related to its
semiconductor business (including, but not limited to, its June 3, 1999
announced sale of its semiconductor business to a subsidiary of Sterling Holding
Company, Citicorp Venture Capital investment portfolio company), it shall
require as a condition of completion of such transaction that the purchaser of
such assets, as well as any successors of any such purchaser, enters into an
express assumption of this Agreement, as if such purchaser or such successor
were the original party to this Agreement, and the form of any such assumption
agreements shall be reasonably acceptable to Align-Rite. In the event of any
such assignments, Xxxxxx shall be deemed to have guaranteed the performance of
such purchaser's or successor's obligations hereunder and be responsible
therefor. Align-Rite covenants and agrees that in the event it sells all or
substantially all of the Business Assets, it shall require that the purchaser of
such assets, as well as any successors of any such purchaser, enters into an
express assumption of
6
this Agreement, as if such purchaser or such successor were the original party
to this Agreement, and the form of any such assumption agreements shall be
reasonably acceptable to Xxxxxx. In the event of any such assignments,
Align-Rite shall be deemed to have guaranteed the performance of such
purchaser's or successor's obligations hereunder and be responsible therefor.
10. TRANSFER OF PROPERTY BY XXXXXX
In the event of any conveyance of the Complex or Premises and assignment by
Xxxxxx of this Agreement, Xxxxxx shall be and is hereby entirely freed and
relieved of all liability under any and all of its covenants and obligations
contained in or derived from this Agreement occurring after the consummation of
such conveyance and assignment so long as Xxxxxx' successor agrees and covenants
to assume all of Xxxxxx' obligations under this Agreement occurring after the
consummation of such conveyance assignment.
11. NOTICES
Any notice, demand, request, consent, approval or communication that either
party desires or is required to give to the other party under this Agreement
shall be in writing and shall be served personally, delivered by independent
messenger or overnight courier service, or sent by U.S. certified mail, return
receipt requested, postage prepaid, in which event such notice shall be deemed
to have been given when seventy-two (72) hours have elapsed from the time when
such notice was deposited in the United States mail, addressed to the other
party at the address set forth below:
If to Xxxxxx:
Xxxxxx Corporation
Semiconductor Business Unit
Notice Address: 0000 Xxxx Xxx Xxxx XX, m/s 00-000
Xxxx Xxx, XX 00000
Attention: Xxx Xxxx
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
with a copy to: Xxxxxx Corporation
Semiconductor Business Xxxx
0000 Xxxx Xxx Xxxx NE, m/s 00-000
Xxxx Xxx, XX 00000
Attention: Vice President Counsel
Fax Number: (000) 000-0000
--------------------------------------------------------------------------------
If to Align-Rite: Align-Rite, Inc.
Notice Address: c/o 0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
7
with a copy to: J. Xxx Xxxxxx, Esquire
Xxxxxx X. Xxxxx, Esquire
O'Melveny & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx
Phone Number: (000) 000-0000
Fax Number (000) 000-0000
Either party may change its address by giving notice of same in accordance with
this paragraph.
12. RESPONSIBILITY OF XXXXXX
Align-Rite hereby acknowledges that Xxxxxx is not in the business of
providing the services herein and that Xxxxxx does not warrant the performance
of services hereunder. In the event of an error or omission in the provision of
a service which shall be established to be principally caused by Xxxxxx'
performance hereunder, Xxxxxx shall credit Align-Rite for any previously
invoiced charges in connection with such service. Such adjustment shall be
Align-Rite's only remedy. Xxxxxx shall have no liability to Align-Rite for any
special, consequential, or incidental damages. Xxxxxx shall undertake to perform
services hereunder for Align-Rite substantially in the same manner as if it were
performing such services for a Xxxxxx business unit. Xxxxxx' obligations to
provide any service hereunder is conditioned upon the responsible party
obtaining prior to the commencement of such services all necessary governmental
licenses, approvals, and permits.
13. GOVERNING LAW
This Agreement and the relationship between Xxxxxx and Align-Rite shall be
governed by and construed in accordance with the laws of the State of Florida.
14. DISPUTE RESOLUTION AND ARBITRATION
In the event that any dispute arises among the parties pertaining to the
subject matter of this Agreement, and the parties, through Align-Rite's senior
management and Xxxxxx' senior management are unable to resolve such dispute
within a reasonable time through negotiations and mediation efforts by senior
executives of both parties, such dispute shall be resolved as set forth in this
Section.
a) The following procedures may be initiated by written notice ("Dispute
Notice") given by one party ("Claimant") to the other, but not before
thirty (30) days have passed during which the parties have been unable
to reach a resolution as described above. The Dispute Notice shall be
accompanied by (i) a statement of the Claimant describing the dispute
in reasonable detail and (ii) documentation, if any, supporting the
Claimant's position on the dispute. Within twenty (20) days after the
other party's ("Respondent") receipt of the Dispute Notice and
accompanying materials, the parties shall submit the dispute to
mediation in the Orlando, Florida area under the rules of the American
Arbitration Association. All negotiations and mediation procedures
pursuant to this Section 14(a) shall be
8
confidential and treated as compromise and settlement negotiations and
shall not be admissible in any arbitration or other proceeding.
b) If the dispute is not resolved as provided in Section 14(a) within
sixty (60) days after the Respondent's receipt of the Dispute Notice,
the dispute shall be resolved by binding arbitration. Within the
sixty-day period referred to in the immediately preceding sentence,
the parties shall agree on a single arbitrator to resolve the dispute.
If the parties fail to agree on the designation of an arbitrator
within said sixty-day period, the American Arbitration Association in
the Orlando, Florida area shall be requested to designate the single
arbitrator. If the arbitrator becomes disabled, resigns or is
otherwise unable to discharge the arbitrator's duties, the
arbitrator's successor shall be appointed in the same manner as the
arbitrator was appointed.
c) Except as otherwise provided in this Section, the arbitration shall be
conducted in accordance with the Commercial Rules of the American
Arbitration Association, which shall be governed by the United States
Arbitration Act.
d) Any resolution reached through mediation and any award arising out of
arbitration (i) shall be non-binding upon the parties; (ii) shall be
limited to a holding for or against a party, and affording such
monetary remedy as is deemed equitable, just and within the scope of
this Agreement; (iii) may not include special, incidental,
consequential or punitive damages; (iv) may in appropriate
circumstances include injunctive relief; and (v) may be entered in
court in accordance with the United States Arbitration Act.
e) Arbitration shall not be deemed a waiver of any right of termination
under this Agreement, and the arbitrator is not empowered to act or
make any award other than based solely on the rights and obligations
of the parties prior to termination in accordance with this Agreement.
f) Each party shall bear its own expenses incurred in any mediation,
arbitration or litigation, but any expenses related to the
compensation and the costs of any mediator or arbitrator shall be
borne equally by the parties to the dispute.
g) A request by a party to a court for interim measures necessary to
preserve a party's rights and remedies for resolution pursuant to this
Section shall not be deemed a waiver of the obligation to mediate or
of the agreement to arbitrate.
h) The parties, their representatives, other participants and the
mediator or arbitrator shall hold the existence, content and result of
mediation or arbitration in confidence.
15. FORCE MAJEURE
Neither party shall be liable in damages for any delay or default in the
performances of any or all obligations of this Agreement, if such delay or
default is caused by conditions beyond its control, including, but not limited
to: acts of the elements, fires, explosions, floods or other
9
casualties, governmental orders or restrictions, and the inability to obtain
necessary governmental approvals. The party incurring the delay shall promptly
notify the other party in writing, and performance shall be extended one day for
each day of delay.
16. AMENDMENT
This Agreement may be amended or any provision of this Agreement may be
waived only if set forth in writing, executed by both parties to this Agreement.
17. ENTIRE AGREEMENT
This Agreement, the Asset Purchase Agreement and the Facility Lease
Agreement contains all of the terms, covenants and conditions agreed to by
Xxxxxx and Align-Rite, integrates all discussions and understandings leading up
to this Agreement, supersedes all prior agreements between the parties
pertaining to the subject matter herein, and may not be modified orally or in
any manner other than by an agreement in writing signed by all of the parties to
this Agreement or their respective successors in interest.
18. ATTORNEYS' FEES
In case suit should be brought for any sum or services due hereunder, for
the enforcement or interpretation of any of the terms or conditions of this
Agreement, or because of any act which may arise out of the operation of the
Photomask Business on the Complex, by either party, the prevailing party shall
be entitled to all costs incurred in connection with such action, including a
reasonable attorney's fee.
19. AUTHORITY
Xxxxxx and Align-Rite warrant and represent that their respective
representatives executing this Agreement each have the full power and authority
to execute this Agreement on behalf of Xxxxxx and Align-Rite, respectively, and
that this Agreement, once executed by the signatory of Xxxxxx or Align-Rite, as
the case may be, shall constitute a legal and binding obligation of that party
and is fully enforceable in accordance with its terms.
IN WITNESS WHEREOF, Xxxxxx and Align-Rite have executed this Site Services
Agreement as of the day and year first written above.
Xxxxxx Corporation Align-Rite, Inc.
Semiconductor Business Unit
--------------------------- -----------------------
By: W. Xxxxxxx Xxxxxx By: Xxxxx X. XxxXxxxxx
V.P.-GM Operations Chairman of the Board
10
Exhibit A
Facilities Systems/Equipment Maintenance and Utilities - Page 1 of 4
-----------------------------------------------------------------------------------------------------------------------------------
HSS PM T&M
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx. 00: Facilities Systems/ Plus HSS and/or
Equipment Itemized Maintenance Property (@) Material EST Hrs. Contractor
Owner PM Freq. EST HRS/YR Cost+ 10% Cost Plus 20%
-----------------------------------------------------------------------------------------------------------------------------------
Champion Air Compressors (4) AR S 12 $384 X
-----------------------------------------------------------
Air Dryers, for Champion Air Compressors (2) AR S 3 $96 X
-----------------------------------------------------------
Chillers (3) AR W 52 $1,664 X
-----------------------------------------------------------
Chiller Water Circulation Pumps (2) AR S 3 $96 X
-----------------------------------------------------------
Chilled Water piping (pipe, valve) AR - 0 $0 X
-----------------------------------------------------------
Chilled/Cooling water pumps (11) AR S 12 $384 X
-----------------------------------------------------------
Cooling Tower (1) AR S/SA/A 28 $896 X
-----------------------------------------------------------
Cooling Tower Pumps (2) AR S 3 $96 X
-----------------------------------------------------------
Make-up Water Piping (for scrubber, cooling tower, AR/HSS1 - 0 $0 X
chilled water)
-----------------------------------------------------------
Chiller Plant Controls, DDC (CSI)*** AR - 0 $0 X
-----------------------------------------------------------
Environmental Control DDC (Xxxxxx Xxxx) AR - 0 $0 X
-----------------------------------------------------------
Process Vacuum Pumps (2) AR S 3 $96 X
-----------------------------------------------------------
Boiler (1) AR - 0 $0 X
-----------------------------------------------------------
Air Handling Units (AHUs), (14) AR S 24 $768 X
-----------------------------------------------------------
Humidifiers, duct mounted (4) AR A 4 $128 X
-----------------------------------------------------------
Filters (prefilters and recirculation filters for AHUs, AR - 0 $0 X
excluding Hi-Efficiency filters)
-----------------------------------------------------------
Air Dist. Sys. (ductwork, Canopies, HEPAs) AR - 0 $0 X
-----------------------------------------------------------
Heat Exhaust for mech, electrical & UPS rooms (4) AR S 2 $64 X
-----------------------------------------------------------
HEPA Hood Certification (Canopies) NA SA 16 $512 X
-----------------------------------------------------------
Particle Measurement System (less Facility View AR M 6 $192 X
Software)***
-----------------------------------------------------------
Fume Scrubber (1) AR W/S 28 $896 X
-----------------------------------------------------------
Fume Exhaust Ductwork AR S 2 $64 X
-----------------------------------------------------------
General Bldg. Interior (ceiling, walls, floor/raised AR - 0 $0 X
floor, light bulbs)
-----------------------------------------------------------
Fire Extinguishers Inspection AR - 0 $0 X
-----------------------------------------------------------------------------------------------------------------------------------
Exhibit A
Facilities Systems/Equipment Maintenance and Utilities - Page 1 of 4
----------------------------------------------------------------------------------------------------------
Contract PM
----------------------------------------------------------------------------------------------------------
HSS
Xxxx. 00: Facilities Systems/ Contract Contract HSS Est.
Equipment Itemized Maintenance Work Freq Est. Cost Est. Cost Total
$ (K)/YR + 20% Cost
----------------------------------------------------------------------------------------------------------
Champion Air Compressors (4) - $0 $0
----------------------------------------------
Air Dryers, for Champion Air Compressors (2) A $5,500 $6,600
----------------------------------------------
Chillers (3) M/A $14,000 $16,800
----------------------------------------------
Chiller Water Circulation Pumps (2) - $0 $0
----------------------------------------------
Chilled Water piping (pipe, valve) - $0 $0
----------------------------------------------
Chilled/Cooling water pumps (11) - $0 $0
----------------------------------------------
Cooling Tower (1) - $0 $0
----------------------------------------------
Cooling Tower Pumps (2) - $0 $0
----------------------------------------------
Make-up Water Piping (for scrubber, cooling tower, - $0 $0
chilled water)
----------------------------------------------
Chiller Plant Controls, DDC (CSI)*** A $1,900 $2,280
----------------------------------------------
Environmental Control DDC (Xxxxxx Xxxx) - $0 0
----------------------------------------------
Process Vacuum Pumps (2) - $0 0
----------------------------------------------
Boiler (1) A $2,000 $2,400
----------------------------------------------
Air Handling Units (AHUs), (14) - $0 $0
----------------------------------------------
Humidifiers, duct mounted (4) - $0 $0
----------------------------------------------
Filters (prefilters and recirculation filters for AHUs, M/Q $6,000 $7,200
excluding Hi-Efficiency filters)
----------------------------------------------
Air Dist. Sys. (ductwork, Canopies, HEPAs) - $0 $0
----------------------------------------------
Heat Exhaust for mech, electrical & UPS rooms (4) - $0 $0
----------------------------------------------
HEPA Hood Certification (Canopies) - $0 $0
----------------------------------------------
Particle Measurement System (less Facility View A $700 $840
Software)***
----------------------------------------------
Fume Scrubber (1) - $0 $0
----------------------------------------------
Fume Exhaust Ductwork - $0 $0
----------------------------------------------
General Bldg. Interior (ceiling, walls, floor/raised - $0 $0
floor, light bulbs)
----------------------------------------------
Fire Extinguishers Inspection M $600 $720
----------------------------------------------------------------------------------------------------------
Exhibit A
Facilities Systems/Equipment Maintenance and Utilities - Page 2 of 4
-----------------------------------------------------------------------------------------------------------------------------------
HSS PM T&M
-----------------------------------------------------------------------------------------------------------------------------------
Xxxx. 00: Facilities Systems/ Plus HSS and/or
Equipment Itemized Maintenance Property (@) Material EST Hrs. Contractor
Owner PM Freq. EST HRS/YR Cost+ 10% Cost Plus 20%
-----------------------------------------------------------------------------------------------------------------------------------
House Cleaning Vacuum, Supplied from bldg 54 AR/HSS1 S 2 $64 X
(1/3 sys cost)
-----------------------------------------------------------
Process Piping (CDA, N2, PV, IWW, etc. AR/HSS1 - 0 $0 X
-----------------------------------------------------------
DI water Booster Pumps/Filters (2) AR S 3 $96 X
-----------------------------------------------------------
VESDA Fire Alarm (under raised floor, MEBES and Console) AR - 0 $0 X
-----------------------------------------------------------
Emergency Generator (1) AR W 52 $1,664 X
-----------------------------------------------------------
UPS (1) AR - 0 $0 X
-----------------------------------------------------------
Electrical Distribution Sys (switchgear, elect dist AR W 120 $3,840 X
panel)
-----------------------------------------------------------------------------------------------------------------------------------
HSS Owned, Maintained and Operated Systems/
Equip/Structure:
-----------------------------------------------------------------------------------------------------------------------------------
15 KV Transformers (2) HSS W 60 $1,920 X
-----------------------------------------------------------
Bldg. Shell (ext. walls & roof) & Concrete Floor HSS $0
-----------------------------------------------------------
Fire Alarm (less the VESDA system) HSS A 16 $512
-----------------------------------------------------------
Fire Sprinkler HSS Q 32 $1,024
-----------------------------------------------------------
Bathroom(s) and Under Slab Plumbing HSS - 0 $0
-----------------------------------------------------------------------------------------------------------------------------------
Consumables: (provided to AR by HSS)
---------------------------------------------------------- -----------------------------------
Electricity (present rates 0.043 $/KWH) $0
-----------------------------------
Nitrogen ($1.80 per 1000 cubic feet; $2.60 per 1000 $0
cubic feet if Nitrogen plant is not operational)
-----------------------------------
DI Water $28 per 1,000 Gallon $0
-----------------------------------
City Water (present rate $3.55 per 1,000 gallon) $0
-----------------------------------
Clean Dry Comp. Air (trade air for chilled water to cool $0
Xxxxxx' Centac air compressor)
-----------------------------------
HSS will add a fixed administrative cost of $125 per $0
month per each metered consumable
-----------------------------------------------------------------------------------------------------------------------------------
483 $15,456
-----------------------------------------------------------------------------------------------------------------------------------
Exhibit A
Facilities Systems/Equipment Maintenance and Utilities - Page 2 of 4
-----------------------------------------------------------------------------------------------------------
Contract PM
-----------------------------------------------------------------------------------------------------------
HSS
Xxxx. 00: Facilities Systems/ Contract Contract HSS Est.
Equipment Itemized Maintenance Work Est. Cost Est. Cost Total
Freq $ (K)/YR Plus 20% Cost
-----------------------------------------------------------------------------------------------------------
House Cleaning Vacuum, Supplied from bldg 54 - $0 $0
(1/3 sys cost)
-----------------------------------------------
Process Piping (CDA, N2, PV, IWW, etc. - $0 $0
-----------------------------------------------
DI water Booster Pumps/Filters (2) - $0
-----------------------------------------------
VESDA Fire Alarm (under raised floor, MEBES and Console) A $500 $600
-----------------------------------------------
Emergency Generator (1) A $5,000 $6,000
-----------------------------------------------
UPS (1) SA $1,200 $1,440
-----------------------------------------------
Electrical Distribution Sys (switchgear, elect dist $0 $0
panel)
-----------------------------------------------------------------------------------------------------------
HSS Owned, Maintained and Operated Systems/
Equip/Structure:
-----------------------------------------------------------------------------------------------------------
15 KV Transformers (2) A $1,500 $1,800
-----------------------------------------------
Bldg. Shell (ext. walls & roof) & Concrete Floor $0
-----------------------------------------------
Fire Alarm (less the VESDA system) $0
-----------------------------------------------
Fire Sprinkler Q $500 $600
-----------------------------------------------
Bathroom(s) and Under Slab Plumbing $0
-----------------------------------------------------------------------------------------------------------
Consumables: (provided to AR by HSS)
---------------------------------------------------------- -----------------------------------------------
Electricity (present rates 0.043 $/KWH) $0
-----------------------------------------------
Nitrogen ($1.80 per 1000 cubic feet; $2.60 per 1000 $0
cubic feet if Nitrogen plant is not operational)
-----------------------------------------------
DI Water $28 per 1,000 Gallon $0
-----------------------------------------------
City Water (present rate $3.55 per 1,000 gallon) $0
-----------------------------------------------
Clean Dry Comp. Air (trade air for chilled water to cool $0
Xxxxxx' Centac air compressor)
-----------------------------------------------
HSS will add a fixed administrative cost of $125 per $0
month per each metered consumable
-----------------------------------------------------------------------------------------------------------
$39,400 $47,280
-----------------------------------------------------------------------------------------------------------
Exhibit A
Facilities Systems/Equipment Maintenance and Utilities - Page 3 of 4
DEFINITIONS:
AR = Align-Rite W = Weekly S = Every 4 Months
HSS = Xxxxxx Semiconductor Sector M = Monthly SA = Semi Annual
PM = Preventive Maintenance Q = Quarterly A = Annual
CPM = Contractor Preventative Maintenance
T & M = Time & Materials
AR/HSS1 = AR owns inside the building and HSS owns outside the building. If
meter exists then AR owns downstream of meter and HSS owns meter and upstream of
meter
Estimated costs based upon straight time.
(@) = xxxx for actual hours
HSS owned system: the cost for maintaining and operating these systems is part
of the Lease. (not services to AR)
T&M HSS / Contractor: This will cover any work outside the PM or contracted-out
work. Example: Break downs, system modification, upgrades, Work Orders
Coverage = 7x24x363
The particle measurement system in bldg. 60 is owned by AR but the front end
software (PMS Facility View) is owned by HSS.
DI Water Cost includes: Cooling Tower Water, Scrubber Water, Waste Water
Treatment, Electric, Xxxxxxxxx, X0, Labor and Material to run the system.
Exhibit A
Facilities Systems/Equipment Maintenance and Utilities - Page 4 of 4
----------------------------------------------------------------------------------------------------------------
HSS Skilled Trades
----------------------------------------------------------------------------------------------------------------
Job Category FY99 Rate/hr. Overtime Premium
----------------------------------------------------------------------------------------------------------------
Administration $26.00 $39.00 $52.00
Mechanic $32.00 $48.00 $64.00
Drafting $32.50 $48.75 $65.00
Engineer $58.50
Construction Mgt. $39.00 $58.50 $78.00
----------------------------------------------------------------------------------------------------------------
HSS Non-Skilled Trades
----------------------------------------------------------------------------------------------------------------
Job Category FY99 Rate/hr. Overtime Premium
----------------------------------------------------------------------------------------------------------------
Janitor $11.02 $16.54 $22.05
Record Retention $19.50 $29.25 $39.00
Mover $25.53 $38.30 $51.06
----------------------------------------------------------------------------------------------------------------
Rates are: avg. actual plus fringe plus 30% overhead
----------------------------------------------------------------------------------------------------------------
Job Category FY99 Rate/hr. Materials Contractor
----------------------------------------------------------------------------------------------------------------
Administration $26.00 Cost + 10% Administrative + 20%
Mechanic $32.00
Drafting $32.50
Engineer $58.50
----------------------------------------------------------------------------------------------------------------
Construction Mgt. $39.00
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
HSS Skilled Trades (Mechanics) FY 99 Age Rates HSS Non-Skilled Trades
----------------------------------------------------------------------------------------------------------------------------------
Trade Avg.$/hr plus fringe Rate plus 30% Trade Avg.$/hr plus fringe Rate plus 30%
----------------------------------------------------------------------------------------------------------------------------------
Bldg. Mgt. Sys. $25.34 $32.94 Janitor $8.48 $11.02
Electrician $24.25 $31.53 Record Retention $15.00 $19.50
HVAC $22.33 $29.03 Mover $19.64 $25.53
Plumber $24.98 $32.47
Hi-Purity Gas Weld $29.20 $37.96
Multi-Skilled Crafts $21.35 $27.76
Glass Blower $26.09 $33.92
----------------------------------------------------------------------------------------------------------------------------------
AVERAGE RATE $24.58 $32.23 AVERAGE RATE $14.37 $18.69
----------------------------------------------------------------------------------------------------------------------------------
Exhibit B
Training & Development
--------------------------------------------------------------------------------
Services Description
--------------------------------------------------------------------------------
1. New Hire Orientation
--------------------------------------------------------------------------------
2. Dept. Transfer Orientation
--------------------------------------------------------------------------------
3. Training Coordination for Teams
--------------------------------------------------------------------------------
4. Team Meeting Facilitation
--------------------------------------------------------------------------------
5. Knowledge Broker to Teams and Management
--------------------------------------------------------------------------------
6. Internal and External Audit Support
--------------------------------------------------------------------------------
7. Coordination/Maintenance of TRACS; XXXXXX; XXXX; DOCS; HUB
--------------------------------------------------------------------------------
8. Presentation Coaching to Teams
--------------------------------------------------------------------------------
9. Required Platform Team Training
--------------------------------------------------------------------------------
10. Compliance Training
--------------------------------------------------------------------------------
11. Operator Certification Program Coordination
--------------------------------------------------------------------------------
12. Goal Deployment process
--------------------------------------------------------------------------------
13. Team Interventions to Improve Behaviors
--------------------------------------------------------------------------------
14. Experiential Learning Intervention Expertise
--------------------------------------------------------------------------------
15. Team Development Program Coordination
--------------------------------------------------------------------------------
16. Local Steering Committee Membership
--------------------------------------------------------------------------------
17. Site Communications, Palm Bay Pulse Team Member
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Itemized Services Approx. Cost ($)
--------------------------------------------------------------------------------
1. Training Classes, see Exhibit "C" $12.50/hr/person plus materials
--------------------------------------------------------------------------------
2. Facilitation $320.00/day
--------------------------------------------------------------------------------
3. Technical Training Center $12.50/hr/person plus materials
--------------------------------------------------------------------------------
See Exhibit "C" for a list of classes provided and the cost. Additional classes
will be added to this list, as well as terminated and updated classes.
Align-Rite will be informed of class additions, terminations and updating. Any
costing changes will be reviewed with Align-Rite before any increase in charges
are occurred.
Continental Breakfasts, Lunches and afternoon snacks for the longer classes will
be the responsibility of Align-Rite.
Exhibit C
Training & Development - Page 1 of 2
Palm Bay Manufacturing Training Department
Course Costs
(These are per student charges.)
--------------------------------------------------------------------------------------------------------------
PACE # Manufacturing CORE Course Classes HRS Material $ Tuition $ Total $
--------------------------------------------------------------------------------------------------------------
TECHNICAL
--------------------------------------------------------------------------------------------------------------
AD8X-42 XXXXXX 8D ROADMAP (no experience) 8 $60.00 $100.00 $160.00
--------------------------------------------------------------------------------------------------------------
TBD XXXXXX 8D ROADMAP (review) 4 $40.00 $50.00 $90.00
--------------------------------------------------------------------------------------------------------------
AD85-05 WORKSTREAM 4 $30.00 $50.00 $80.00
--------------------------------------------------------------------------------------------------------------
AD8R-34 CAPA/CARS 2 $20.00 $25.00 $45.00
--------------------------------------------------------------------------------------------------------------
AD8Y-06 TPM OVERVIEW 1 $10.00 $12.50 $22.50
--------------------------------------------------------------------------------------------------------------
AD8R-42 TOC OVERVIEW 2 $20.00 $25.00 $45.00
--------------------------------------------------------------------------------------------------------------
AD8P-01 SPC for NEW HIRES 12 $25.00 $150.00 $175.00
--------------------------------------------------------------------------------------------------------------
AD8P-15 FUNCTIONAL SPC 20 $50.00 $250.00 $300.00
--------------------------------------------------------------------------------------------------------------
AD8R-46 IYM OVERVIEW 2 $20.00 $25.00 $45.00
--------------------------------------------------------------------------------------------------------------
AD8N-11 GOAL DEPLOYMENT 8 $50.00 $100.00 $150.00
--------------------------------------------------------------------------------------------------------------
AD8R-01 5 S CAND0 2 $20.00 $25.00 $45.00
--------------------------------------------------------------------------------------------------------------
AEU4-15 PRODUCT SUBSTITUTION 2 $20.00 $25.00 $45.00
--------------------------------------------------------------------------------------------------------------
Exhibit C
Training & Development - Page 2 of 2
Course Costs (cont.)
------------------------------------------------------------------------------------------------------------------
PACE # Manufacturing CORE Course Classes HRS Material $ Tuition $ Total $
--------------- --------------------------------------------------------------------------------------------------
--------------- --------------------------------------------------------------------------------------------------
SOCIAL
--------------- --------------------------------------------------------------------------------------------------
AD8X-06 TEAM DYNAMICS (4-2 hour sessions optional) 8 $50.00 $100.00 $150.00
--------------- --------------------------------------------------------------------------------------------------
AD8N-21 MEETING DYNAMICS 4 30.00 $50.00 $80.00
--------------- --------------------------------------------------------------------------------------------------
AD8X-11 CONFLICT 101 2 20.00 $25.00 $45.00
--------------- --------------------------------------------------------------------------------------------------
AD8X-06 TEAM BEST PRACTICES 4 30.00 $50.00 $80.00
--------------- --------------------------------------------------------------------------------------------------
AD8X-16 EFFECTIVE COMMUNICATIONS 2 20.00 $25.00 $45.00
--------------- --------------------------------------------------------------------------------------------------
AD8M-28 SEMISPEAKS 4 30.00 $50.00 $80.00
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
PACE # Manufacturing CORE Course Classes HRS Material $ Tuition $ Total $
------------------------------------------------------------------------------------------------------------------
SAFETY
------------------------------------------------------------------------------------------------------------------
AEU4-17 HAZARD COMMUNICATION/RIGHT TO KNOW 1 10.00 $12.50 $22.50
---------------- -------------------------------------------------------------------------------------------------
AD8T-01 HAZARDOUS ENERGY CONTROL (level 2) 2 20.00 $25.00 $45.00
---------------- -------------------------------------------------------------------------------------------------
LEADERSHIP
------------------------------------------------------------------------------------------------------------------
AD8N-48 EFFECTIVE COACHING BEHAVIORS 8 50.00 $100.00 $150.00
--------------- --------------------------------------------------------------------------------------------------
AD8N-04 FACILITATION SKILLS WORKSHOP 101 8 50.00 $100.00 $150.00
--------------- --------------------------------------------------------------------------------------------------
AD8N-23 ADVANCED FACILITATION SKILLS 8 75.00 $100.00 $175.00
--------------- --------------------------------------------------------------------------------------------------
Exhibit D
Calibration
--------------------------------------------------------------------------------------------
Itemized Services Approx. Monthly Cost ($)
--------------------------------------------------------------------------------------------
1. Calibration and repair service
--------------------------------------------------------------------------------------------
2. Repair $78/hr as requested
--------------------------------------------------------------------------------------------
3. Calibration $78/hr (estimate is 88hrs/year or $6864.00/yr) approximately $572.00
--------------------------------------------------------------------------------------------
Exhibit E - Calibration - Page 1 of 2
-----------------------------------------------------------------------------------------------------------------------
PROP. MFR. MFR. EQ. MFR SER. DUE ROOM CAL CAL CAL CAL
ID NAME MODEL DESC. NO DATE LOC STATUS INTVL. CODE HOURS
-----------------------------------------------------------------------------------------------------------------------
920918 PMS 110 PTCL 0688-116 4/17/99 MASK IP 365 IOPP 0.5
COUNT
-----------------------------------------------------------------------------------------------------------------------
014104 PREC INV CONTROLLER 9155 CHMB 4/21/99 MASK XX 182 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
000000 XXX NIKON MEAS SYS 5354 5/1/99 MASK XX 365 HIP 1
-----------------------------------------------------------------------------------------------------------------------
010299 NIKON 6 COMPARATOR BAY 3 5/1/99 MASK XX 365 HIP 1
-----------------------------------------------------------------------------------------------------------------------
912243 OAI 316/365NM EXPOS MTR C399 C551 5/19/99 MASK XX 182 VCAL 1
-----------------------------------------------------------------------------------------------------------------------
011698 HONWLL 612X9 T-RH-REC 378033 5/20/99 MASK XX 182 HCAL 2
-----------------------------------------------------------------------------------------------------------------------
010096 SOLOMAT 455 T-RH-MTR 5/25/99 MASK XX 182 HCAL 6
-----------------------------------------------------------------------------------------------------------------------
004098 BACH T-SCRIBE TEMP REC 5/26/99 MASK XX 182 HCAL 1
-----------------------------------------------------------------------------------------------------------------------
012468 BLEUM TOUCH MST OVEN 6/1/99 BAY2 XX 365 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
012465 KLA 101 INSP STA 6/1/99 BAY1 XX 365 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
012470 QUANTRONIX DRS 21 RPR STA 108 6/1/99 BAY3 XX 365 IOPP 0.5
-----------------------------------------------------------------------------------------------------------------------
012466 QUANTRONIX DRS 1 RPR STA 64 6/1/99 BAY1 XX 365 IOPP 0.5
-----------------------------------------------------------------------------------------------------------------------
000000 XXXXX 700/1610 3 BALANCE 6/4/99 MASK XX 182 HCAL 1
-----------------------------------------------------------------------------------------------------------------------
913401 OAI 316 EXPOS MTR C438 C279 6/9/99 MASK XX 182 VCAL 1
-----------------------------------------------------------------------------------------------------------------------
006576 KLA INSP STA 6/15/99 MASK XX 365 HIP 1
-----------------------------------------------------------------------------------------------------------------------
013971 FLUKE 8021B DMM 4855155 6/22/99 SHOP XX 365 HCAL 1
-----------------------------------------------------------------------------------------------------------------------
012462 ATC XXX XXXXX XXX # 0 7/7/99 MASK XX 182 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
014292 ATC TIMER 7/7/99 MASK XX 182 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
014294 ATC TIMER 7/7/99 MASK XX 182 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
000000 XXX XXX XXXXX XXX #0 7/7/99 MASK XX 182 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
014291 ATC TIMER 7/19/99 MASK XX 182 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
014293 ATC TIMER 7/19/99 MASK XX 182 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
014295 ATC TIMER 7/19/99 MASK XX 182 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
014296 ATC TIMER 7/19/99 MASK XX 182 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
955104 TEK THS730A DIG B012042 7/21/99 MASK XX 365 HCAL 2
OSCOPE
-----------------------------------------------------------------------------------------------------------------------
910608 TEK AM503 C PROBE B052654 7/22/99 MASK XX 182 HCAL 1
AMP
-----------------------------------------------------------------------------------------------------------------------
909643 TEK FG 502 FUNC GEN B050365 7/22/99 MASK XX 182 HCAL 1
-----------------------------------------------------------------------------------------------------------------------
910211 TEK DC 503A COUNTER B022152 7/22/99 MASK XX 182 HCAL 1
-----------------------------------------------------------------------------------------------------------------------
013615 TEK 2236 OSCOPE B016189 7/29/99 MASK XX 182 HCAL 2
-----------------------------------------------------------------------------------------------------------------------
010287 LEITZ ERGOLUX COMPARATOR BAY2 8/26/99 MASK XX 365 HIP 0.5
-----------------------------------------------------------------------------------------------------------------------
010279 B&L 4X MICROSCOPE 8/26/99 MASK XX 365 PM 1
-----------------------------------------------------------------------------------------------------------------------
010283 B&L 6X MICROSCOPE 8/26/99 MASK XX 365 PM 1
-----------------------------------------------------------------------------------------------------------------------
012565 XXXX S MICROSCOPE 8/26/99 MASK XX 365 PM 1
-----------------------------------------------------------------------------------------------------------------------
010455 LEITZ MICROSCOPE 8/26/99 MASK XX 365 PM 1
-----------------------------------------------------------------------------------------------------------------------
Exhibit E - Calibration - Page 1 of 2
---------------------------------------------------------------
PROP. REP CAL CAL REP Defect
ID HOURS DATE TIMES TIMES Rate
---------------------------------------------------------------
920918 0 4/17/98 5 1 20%
---------------------------------------------------------------
014104 0 10/21/98 10 0 0%
---------------------------------------------------------------
930187 0 5/1/98 9 0 0%
---------------------------------------------------------------
010299 0 5/1/98 10 0 0%
---------------------------------------------------------------
912243 0 11/18/98 10 1 30%
---------------------------------------------------------------
011698 0 11/19/98 20 0 0%
---------------------------------------------------------------
010096 0 11/24/98 20 0 0%
---------------------------------------------------------------
004098 0.5 11/25/98 19 4 21%
---------------------------------------------------------------
012468 0 6/1/98 9 0 0%
---------------------------------------------------------------
012465 0 6/1/98 9 0 0%
---------------------------------------------------------------
012470 0 6/1/98 9 0 0%
---------------------------------------------------------------
012466 0 6/1/98 9 0 0%
---------------------------------------------------------------
014484 0 12/4/98 7 0 0%
---------------------------------------------------------------
913401 0 12/9/98 12 0 8%
---------------------------------------------------------------
006576 0 6/15/98 9 0 0%
---------------------------------------------------------------
013971 0 6/22/98 6 0 0%
---------------------------------------------------------------
012462 0 1/6/99 17 0 0%
---------------------------------------------------------------
014292 0 1/6/99 9 0 0%
---------------------------------------------------------------
014294 0 1/6/99 10 0 0%
---------------------------------------------------------------
013279 0 1/6/99 15 0 0%
---------------------------------------------------------------
014291 0 1/18/99 9 0 0%
---------------------------------------------------------------
014293 0 1/18/99 10 0 0%
---------------------------------------------------------------
014295 0 1/18/99 9 0 0%
---------------------------------------------------------------
014296 0 1/18/99 9 0 0%
---------------------------------------------------------------
955104 0 7/21/98 2 0 0%
---------------------------------------------------------------
910608 0 1/21/99 19 0 0%
---------------------------------------------------------------
909643 0 1/21/99 19 00 0%
---------------------------------------------------------------
910211 0 1/21/99 19 00 0%
---------------------------------------------------------------
013615 0 1/28/99 9 00 0%
---------------------------------------------------------------
010287 0 8/26/98 6 1 17%
---------------------------------------------------------------
010279 0 8/26/98 25 0 0%
---------------------------------------------------------------
010283 2 8/26/98 24 1 4%
---------------------------------------------------------------
012565 1 8/26/98 22 1 5%
---------------------------------------------------------------
010455 0 8/26/98 23 0 0%
---------------------------------------------------------------
Exhibit E - Calibration - Page 2 of 2
------------------------------------------------------------------------------------------------------------------------
911499 LEITZ ORTHOLUX MICROSCOPE 8/26/99 MASK XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
000000 XXX NIKON MICROSCOPE 5345 8/28/99 MASK XX 365 HIP 1
------------------------------------------------------------------------------------------------------------------------
012100 LEITZ ORTHOLUX MICROSCOPE 8/28/99 MASK XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
010289 LEITZ ERGOLUX MICROSCOPE 8/28/99 MASK XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
010290 LEITZ POLOROID CAMERA 8/28/99 MASK XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
012563 LEITZ POLOROID CAMERA 8/28/99 MASK XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
012096 LEITZ METALLOPLN MICROSCOPE 8/28/99 MASK XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
009619 SOLOMAT 455 T-RH-MTR 51509 9/16/99 MASK XX 182 HCAL 3.5
------------------------------------------------------------------------------------------------------------------------
906733 OLYMPUS BHMJL MICROSCOPE 200059 9/30/99 MASK XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
015109 XXXXXXXX 1009 PRES. 10/11/99 MASK XX 182 RCAL 1
GUAGE
------------------------------------------------------------------------------------------------------------------------
501234 XXXXXXXX 178 DMM 10139 12/9/99 PHMK XX 365 HCAL 1
------------------------------------------------------------------------------------------------------------------------
012559 NIKON 0-0 XXXXX XXX #0 1/18/00 MASK XX 365 HIP 1
MEAS
------------------------------------------------------------------------------------------------------------------------
014289 FLUKE 8020B DMM 4155192 1/28/00 MASK XX 365 HCAL 1
------------------------------------------------------------------------------------------------------------------------
014300 FLUKE 8021B DMM 4920167 2/1/00 MASK XX 365 HCAL 1
------------------------------------------------------------------------------------------------------------------------
014290 FLUKE 8021B DMM 4915075 2/1/00 MASK XX 365 HCAL 1
------------------------------------------------------------------------------------------------------------------------
014288 FLUKE 8020B DMM 4660116 2/1/00 MASK XX 365 HCAL 1
------------------------------------------------------------------------------------------------------------------------
907713 XXXXXXXX 179 DMM 28969 2/11/00 MASK XX 365 HCAL 1
------------------------------------------------------------------------------------------------------------------------
911739 OLYMPUS BHMJL MICROSCOPE 203562 3/24/00 ANAL XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
010284 WILD M-450 MICROSCOPE 3/31/00 LAB XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
913752 OLUMPUS BHMJL MICROSCOPE 203594 4/4/00 1113 XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
011407 OMEGA 871 K DIG TEMP 4/13/00 MASK XX 365 HCAL 0.75
------------------------------------------------------------------------------------------------------------------------
904903 B&L 7X MICROSCOPE 4/15/00 MASK XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
012095 LEITZ ERGOLUX MICROSCOPE 027542 4/15/00 OFFI XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
012101 B&L MICROZOOM MICROSCOPE 61187 4/15/00 MASK XX 365 PM 1
------------------------------------------------------------------------------------------------------------------------
014816 FLUKE 8060A DMM 6486034 4/20/00 MASK XX 365 HCAL 1
------------------------------------------------------------------------------------------------------------------------
Exhibit E - Calibration - Page 2 of 2
-------------------------------------------------------------------
911499 2 8/26/98 25 2 8%
-------------------------------------------------------------------
011054 0 8/28/98 9 0 0%
-------------------------------------------------------------------
012100 0 8/28/98 22 0 0%
-------------------------------------------------------------------
010289 4 8/28/98 16 2 13%
-------------------------------------------------------------------
010290 0 8/28/98 22 0 0%
-------------------------------------------------------------------
012563 0 8/28/98 22 0 0%
-------------------------------------------------------------------
012096 1 8/28/98 21 1 5%
-------------------------------------------------------------------
009619 0.5 3/18/99 20 2 10%
-------------------------------------------------------------------
906733 4 9/30/98 17 7 41%
-------------------------------------------------------------------
015109 4/12/99 1 0 0%
-------------------------------------------------------------------
501234 1 12/9/98 10 1 10%
-------------------------------------------------------------------
012559 0 1/18/99 9 0 0%
-------------------------------------------------------------------
014289 0 1/28/99 5 0 0%
-------------------------------------------------------------------
014300 0 2/1/99 5 0 0%
-------------------------------------------------------------------
014290 0 2/1/99 5 0 0%
-------------------------------------------------------------------
014288 0 2/1/99 5 0 0%
-------------------------------------------------------------------
907713 0 2/11/99 10 1 10%
-------------------------------------------------------------------
911739 1 3/25/99 23 2 9%
-------------------------------------------------------------------
010284 0 4/1/99 17 0 0%
-------------------------------------------------------------------
913752 1 4/5/99 19 1 5%
-------------------------------------------------------------------
011407 0.5 4/14/99 11 2 18%
-------------------------------------------------------------------
904903 0 4/16/99 25 0 0%
-------------------------------------------------------------------
012095 1 4/16/99 28 3 11%
-------------------------------------------------------------------
012101 0 4/16/99 25 0 0%
-------------------------------------------------------------------
014816 4/21/99 2 0 0%
-------------------------------------------------------------------
Exhibit F
Factory Control Systems & VMS Administration - Page 1 of 2
1. Factory Control Application Services:
a) 24x7x365 Coverage for Application Problem Resolution
b) Application-level Security Administration
c) WorkStream Database Administration
d) WorkStream Application Modeling
e) Application Performance Monitoring and Tuning
f) Job Scheduling
g) Rules-based Event Monitoring for Applications, Databases and Batch Jobs
h) Enhancements to Internally-developed Systems
i) Product Upgrades for existing Commercial Software Packages
j) Development of Custom Software Solutions
k) Deployment and Maintenance of new Commercial Software Packages
Service Cost
$1,500/Month + $85/Hour Weekdays 8AM-5PM; $105/Hour Weekdays 5PM-8AM, Weekends
or National Holidays
Conditions:
1. Align-Rite will be charged a 2 hour minimum for any call received
weekdays between 5PM-8AM or on weekends or national holidays.
2. Xxxxxx reserves the right to terminate or change this service with
(90) days advance notice to Align-Rite.
3. Align-Rite reserves the right to terminate or change this service with
(90) days advance notice to Xxxxxx.
4. The service fees are valid from July 4, 1999 through June 30, 2000.
5. Xxxxxx will xxxx Align-Rite at most monthly.
6. Xxxxxx will require Align-Rite stay current with Xxxxxx revisions of
commercial and internally developed systems for applications used by both
companies. Timing of upgrades will be negotiated with Align-Rite.
Definitions/Explanations:
1. The $1,500/month flat fee covers management overhead and separate accounts
payable/receivable services associated with providing this outside service.
2. VMS Administration Services: The Xxxxxx Computing and Communications
Services group will provide Align-Rite with the following VMS
administration services:
a) 24x7x365 Coverage for VMS Problem Resolution
b) Rules-based Event Monitoring
c) System Security Administration
d) Account Administration
e) File and Print Services
f) VMS Network Administration (TCP/IP, DECnet)
g) VAX-Mail Services
h) VMS Capacity Planning
i) Help Desk Problem Tracking and Call Routing
j) Hardware and Software Installation and Upgrades
Service Cost:
$2,000/Month + $85/Hour Weekdays 8AM-5PM; $105/Hour Weekdays 5PM-8AM, Weekends
or National Holidays
Conditions:
1. Align-Rite will be charged for 2 hour minimum for any call received
weekdays between 5PM-8AM or on weekends or national holidays.
2. Xxxxxx reserves the right to terminate or change this service with (90)
days advance notice to Align-Rite.
3. Align-Rite reserves the right to terminate or change this service with (90)
days advance notice to Xxxxxx.
4. Align-Rite will be billed for a minimum 20 hours/week at $85/hour from the
time the definitive agreement is signed through the completion of the VAX
cluster re-configuration project.
5. Align-Rite will be billed for a minimum 10 hours/week at $85/hour after the
VAX cluster reconfiguration project.
6. The service fees are valid from July 4, 1999 through June 30, 2000.
7. Xxxxxx will xxxx Align-Rite at most monthly.
8. Xxxxxx will require Align-Rite stay current with Xxxxxx revisions of VMS
layered and 3rd-party products on the Align-Rite Factory Control Systems
VAX. Timing of upgrades will be negotiated with Align-Rite.
Definitions/Explanations:
1. The $2,000/month flat fee covers Help Desk and Accounts Payable/Receivables
services along with VMS administration management overhead.
2. The hour rate will only be applied to VMS administration labor.
3. UNIX Voyage website ordering Service costs.
a) One time set up fee of $120.00
b) $216.00 per month utilization charge.
2
Exhibit G
Desktop Computing Services (DCS) - Page 1 of 2
----------------------------------------------------------------------------------------------
Services Description Frequency
----------------------------------------------------------------------------------------------
1. Help Desk first level support for hardware and/or software issues As needed.
(we purchase from Corporate).
----------------------------------------------------------------------------------------------
2. DCS on-site second level support for hardware and/or software issues. As needed.
----------------------------------------------------------------------------------------------
3. Purchasing of all hardware and/or software. As needed.
----------------------------------------------------------------------------------------------
4. Asset Tracking, software compliance, licensing for all computing Assets. On-going.
----------------------------------------------------------------------------------------------
5. Software Distribution for software upgrades, McAfee .dat file As needed.
Updates, Y2K issues, fixes, etc.
----------------------------------------------------------------------------------------------
6. File/Print Services (we purchase from Corporate). 24 x 7
----------------------------------------------------------------------------------------------
7. Messaging Services, i.e. Exchange (we purchase from Corporate) 24 x 7
----------------------------------------------------------------------------------------------
8. Installations/configurations of all Standard Client computing Assets, As needed.
i.e. labtops, PC's, printers, scanners, etc.
----------------------------------------------------------------------------------------------
9. Loaner labtops/PC's. As needed.
----------------------------------------------------------------------------------------------
10. WinFrame server capabilities. As needed.
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Purpose Qty Annual Service
Name (Include Computing Platform) Licenses Ownership Contract Cost
----------------------------------------------------------------------------------------------------------------------------------
ITG Non-ITG
----------------------------------------------------------------------------------------------------------------------------------
Client End:
----------------------------------------------------------------------------------------------------------------------------------
1. Win 95 or NT Wkstn Operating Systems All Non-Transferable
----------------------------------------------------------------------------------------------------------------------------------
2. MS Office Pro 95 Word, Excel, Powerpoint, Access All Non-Transferable
----------------------------------------------------------------------------------------------------------------------------------
3. MS Project Project Scheduling All Non-Transferable
----------------------------------------------------------------------------------------------------------------------------------
4. Internet Explorer Internet Access All Non-Transferable
----------------------------------------------------------------------------------------------------------------------------------
5. Outlook 97 E-mail (going to 98 August) All Non-Transferable
----------------------------------------------------------------------------------------------------------------------------------
6. Onnet 4.0 Mainframe Emulation All See attached
----------------------------------------------------------------------------------------------------------------------------------
7. Exceed Unix emulation All Non-Transferable
----------------------------------------------------------------------------------------------------------------------------------
8. KeaTerm Vax emulation All See attached
----------------------------------------------------------------------------------------------------------------------------------
9. McAfee AntiVirus Virus Protection All (Corp Site Lic)
----------------------------------------------------------------------------------------------------------------------------------
10. Adobe Acrobat 3.0 Writer - document exchange 1 No maint - License transfer
----------------------------------------------------------------------------------------------------------------------------------
11. PGP (Enterprise Sec.)
----------------------------------------------------------------------------------------------------------------------------------
12. Labelworks Mask box labels 2 No maint - license transfer
----------------------------------------------------------------------------------------------------------------------------------
13. ProComm Plus W/modem for incoming data PC 1 No maint - license transfer
----------------------------------------------------------------------------------------------------------------------------------
14. Visual Basic Programming Language 2 Non-Transferable
----------------------------------------------------------------------------------------------------------------------------------
15. Pearl Scripting Language 1
----------------------------------------------------------------------------------------------------------------------------------
16. VISA Billing w/modem
----------------------------------------------------------------------------------------------------------------------------------
17. ConnX Connectivity to WorkStream
----------------------------------------------------------------------------------------------------------------------------------
18. Front Page Web Page Administration
----------------------------------------------------------------------------------------------------------------------------------
19. Visio Drawings/Presentations See attached
----------------------------------------------------------------------------------------------------------------------------------
20. Lview Graphics Viewer 1 No maint - license transfer
----------------------------------------------------------------------------------------------------------------------------------
21. WinZip File compression No maint - license transfer
----------------------------------------------------------------------------------------------------------------------------------
22. Various Single apps See attached
----------------------------------------------------------------------------------------------------------------------------------
Exhibit G
Desktop Computing Services (DCS) - Page 2 of 2
----------------------------------------------------------------------------------------------------------------------------------
Name Purpose Qty Annual Service
(Include Computing Platform) Licenses Ownership Contract Cost
----------------------------------------------------------------------------------------------------------------------------------
ITG Non-ITG
----------------------------------------------------------------------------------------------------------------------------------
Server End:
----------------------------------------------------------------------------------------------------------------------------------
1. NT Server File/Print Services 1 Non-Transferable
----------------------------------------------------------------------------------------------------------------------------------
2. Exchange Server E-mail messaging 1 Non-Transferable
----------------------------------------------------------------------------------------------------------------------------------
3. Server Backup SW Server tape backup
----------------------------------------------------------------------------------------------------------------------------------
Exhibit H
Desktop Computing Services (DCS) - Page 1 of 2
-----------------------------------------------------------------------------------------------------------------------------
Asset # Description Div Dept Class Bldg SN Model Present?
-----------------------------------------------------------------------------------------------------------------------------
930811A COMPAQ 000 X XXXXX X 0000 X 00 X000XXX00000 486/33DXS YES
-----------------------------------------------------------------------------------------------------------------------------
931193A COMPAQ 000/X XXXXXX (XX XXXX) X 0000 X 00 0000XXXX0000 386/20E YES
-----------------------------------------------------------------------------------------------------------------------------
940553A COMPAQ 286 CLEAN ROOM PARTICLE R 0000 X 00 0000XX0X0000 286E YES
MONITOR
-----------------------------------------------------------------------------------------------------------------------------
940553B ADD ON COSTS R 7110 Z 60
-----------------------------------------------------------------------------------------------------------------------------
942361A GATEWAY 2000/E XXXXX R 7150 W 60 1141494 486-33 YES
-----------------------------------------------------------------------------------------------------------------------------
942605A COMPAQ 000 X XXXXX X 0000 X 00 0000XXX00000 575 YES
-----------------------------------------------------------------------------------------------------------------------------
942606A COMPAQ 575 XXXXX XXX R 0000 X 00 D533HMY6E997 575 YES
-----------------------------------------------------------------------------------------------------------------------------
942658A COMPUADD 486 L XXXXXXXXX R 7150 W 56 746038 486-33V YES
-----------------------------------------------------------------------------------------------------------------------------
943988A COMPAQ 486/MASK SHOP/XXX XXXX BOX R 7150 W 60 A507HNC3H712 PROLINEA YES
MT 4/6
-----------------------------------------------------------------------------------------------------------------------------
952070A DELL X00/X XXXXX X 0000 X 00 0XXXX DIMENSION YES
P75
-----------------------------------------------------------------------------------------------------------------------------
952074A DELL P75/B XXXXXXXX R 7150 W 60 4YLZF DIMENSION YES
P75
-----------------------------------------------------------------------------------------------------------------------------
952292A DELL OPTIPLEX/CUST SVC DATA PC R 0000 X 00 52PTV 466/MT YES
"XXXXXX"
-----------------------------------------------------------------------------------------------------------------------------
952566A COMPAQ DESKPRO575/X XXXXXXX R 7150 W 56 6533HMY60608 575 YES
-----------------------------------------------------------------------------------------------------------------------------
952705A COMPAQ DESKPRO - XXXXXX XXXX R 0000 X 00 6533HMY6D442 575 YES
-----------------------------------------------------------------------------------------------------------------------------
952796A COMPAQ DESKPRO 000/XXXX XXXXX X 0000 X 00 X000XXX00000 575MT YES
-----------------------------------------------------------------------------------------------------------------------------
952825A COMPAQ 575/XXXXXXX XXXXXXXXX R 7120 W 60 D533HMY6322 575MT YES
-----------------------------------------------------------------------------------------------------------------------------
953139A COMPAQ 486/W XXXXXX/XXXXX SYSTEM R 0000 X 00 0000XXX00000 575MT YES
-----------------------------------------------------------------------------------------------------------------------------
953651A COMPAQ DP5100/XXXXXX XXXXXX R 7120 W 56 6602HNX7D297 Apr-66 YES
-----------------------------------------------------------------------------------------------------------------------------
953666A COMPAQ DESKPRO - XXXXX XXXXXXXX R 0000 X 00 X000XXX00000 5100 YES
-----------------------------------------------------------------------------------------------------------------------------
953785A COMPAQ - "XXXXXX XXXX" SYSTEM R 0000 X 00 0000XXX00000 575 YES
-----------------------------------------------------------------------------------------------------------------------------
954441A CPQ DESKPRO 0000 - X. XXXXXX X 0000 X 00 0000XXX00000 P133 YES
-----------------------------------------------------------------------------------------------------------------------------
954466A CPQ DESKPRO 2000 - F XXXXXXXX R 0000 X 00 0000XXX00000 2000 YES
-----------------------------------------------------------------------------------------------------------------------------
954808A HP LASERJET PRINTER/CUSTOMER SERVICE R 7150 Y 56 USB1031636 2000 YES
-----------------------------------------------------------------------------------------------------------------------------
955241A COMPAQ P166/A XXXXXXXXX R 7120 W 56 6740BPN3D689 5000N YES
-----------------------------------------------------------------------------------------------------------------------------
955632A COMPAQ DP4000/XXXXXX XXXXXXX R 7150 S 56 6751BPN3P960 DP4000 YES
-----------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx is no longer with Xxxxxx.
His PC is in ITG Customer Service.
-----------------------------------------------------------------------------------------------------------------------------
955678A COMPAQ DP4000/X XXXXXXX R 7150 S 56 6750BPN3P648 DP4000 YES
-----------------------------------------------------------------------------------------------------------------------------
Exhibit H
Desktop Computing Services (DCS) - Page 2 of 2
-----------------------------------------------------------------------------------------------------------------------------
955680A COMPAQ DP4000/XXXXX XXXXXXXXX R 7140 S 56 6750BPN3P546 DP4000 YES
-----------------------------------------------------------------------------------------------------------------------------
955820A LEXMARK PRINTER/XXXX AND SHIP R 7150 Y 60 11-HW870 DP4000 YES
-----------------------------------------------------------------------------------------------------------------------------
955860A COMPAQ 266/XXXXX XXXXXXX R 0000 X 00 6825BZD2J052 S1855 YES
-----------------------------------------------------------------------------------------------------------------------------
955915A COMPAQ DP SB/XX XXXXX R 0000 X 00 0000XXX0X000 P266 YES
-----------------------------------------------------------------------------------------------------------------------------
955916A COMPAQ DB/XXXXXX XXXXX R 7150 W 56 6821BZG2J184 P300 YES
-----------------------------------------------------------------------------------------------------------------------------
955938A COMPAQ DP SB/XXXXX XXXXX R 7110 S 60 P300 YES
-----------------------------------------------------------------------------------------------------------------------------
955947A COMPAQ DP SB/XXXX XXXXXX R 7120 S 60 6824BYS2J132 P300 YES
-----------------------------------------------------------------------------------------------------------------------------
PCs not on original list: P2 350
-----------------------------------------------------------------------------------------------------------------------------
955033 COMPAQ DP/C XXXXX R 7110 60 6719HVX6B059 YES
-----------------------------------------------------------------------------------------------------------------------------
955073 COMPAQ DP/R XXXXXX (AND OTHERS) R 7120 60 6552HVX6H820 ? YES
-----------------------------------------------------------------------------------------------------------------------------
955153 COMPAQ DP/"XXXX AND SHIP" SYSTEM R 7150 60 6735BPN3D223 ? YES
-----------------------------------------------------------------------------------------------------------------------------
94446A Protege 650 CT laptop/Xxx Xxxxxxxxxx R ?
-----------------------------------------------------------------------------------------------------------------------------
940786A Laserjet III/Xxx Xxxxxxxxxx R
-----------------------------------------------------------------------------------------------------------------------------
Exhibit I
Desktop Computing Services (DCS)
ITG DCS Services and Costs Overview - FY '00
Xxxxx Xxxxxx - 5/10/99
-------------------------------------------------------------------------------------------------------------------------
ITG Users
$ Per User per Month ITG Total Cost per Year
-------------------------------------------------------------------------------------------------------------------------
NT Ops - 24x7 NT services support of Semi 23.00 32 $8,832
managed servers for APP, WF, DBS, and NAS
services. Note: Rates based on $34.6k/year local,
27.9k/year remote, $7/GB/week.
-------------------------------------------------------------------------------------------------------------------------
HelpDesk - Standard Client Help Desk support, 17.00 32 $6,528
and call center services on other computing
services based on 12 minutes of service with
a client contacting the Help Desk, 1.2 times
per month.
-------------------------------------------------------------------------------------------------------------------------
Domain (2.75) - Domain Control application 2.75 32 $1,056
support, virus management depoyment to remote
servers, and tally management.
-------------------------------------------------------------------------------------------------------------------------
Domain Security - Account administration, and 4.30 32 $1,651
security event monitoring. The cost recovered at
the Palm Bay Site for the entire Semi Sector.
-------------------------------------------------------------------------------------------------------------------------
XXXX - Xxxxxx Enterprise Messaging Service - 10.00 32 $3,840
Email services operational support, and NT server
support for Exchange servers. Cost reflects
<20MB personal store.
-------------------------------------------------------------------------------------------------------------------------
Microsoft Software - Corporate agreement for 13.75 32 $5,280 Note: Current M/S
client and applicable server Microsoft licenses. licenses are
non-transferable. Cost
reflects current HSS M/S
Enterprise Agreement.
-------------------------------------------------------------------------------------------------------------------------
Desktop Break-Fix Support Services - Desktop 62.00 32 $23,808 Non-reoccuring workorder
Procurement, software compliance, break-fix, charges - $65 per
software distribution, asset tracking services desktop visit.
-------------------------------------------------------------------------------------------------------------------------
Printer Break-Fix Support Services 60.00 2 $1,440
-------------------------------------------------------------------------------------------------------------------------
Internet Access 1.57 32 $603
-------------------------------------------------------------------------------------------------------------------------
Total 194.37 $53,038
-------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------------
Notes: *HEMS costs per month = $17/month if 20-50MB message store, $24/month if 50-100MB store.
-------------------------------------------------------------------------------------------------------------------------
Exhibit J
Emergency Response Team
----------------------------------------------------------------------------------------------------------------
Services Description Frequency
----------------------------------------------------------------------------------------------------------------
1. Emergency Response to support As needed.
o Fire Alarms (presently < 5 per year at B60; < 30
o Chemical Spills per year total on the Complex)
----------------------------------------------------------------------------------------------------------------
2. Training
o 40 hour initial Hazardous Material training o One Time
o 8-16 hours refresher training o Annual
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Itemized services Approx. Monthly Cost ($)
----------------------------------------------------------------------------------------------------------------
1. Replacement of used supplies (mats, neutralizer, etc.) Per response at appropriate - market price
----------------------------------------------------------------------------------------------------------------
2. External Services (e.g., spill response contractor - Per response at necessary - market price
current contracts with Florida Spill Response and
Canaveral Marine Services)
----------------------------------------------------------------------------------------------------------------
3. Periodic training sessions (4 sessions, 4/year, 4 hours each) $25/person per session
----------------------------------------------------------------------------------------------------------------
4. External training (e.g. Incident Commander, gas systems, Market price - per person etc.)
----------------------------------------------------------------------------------------------------------------
Please note the following conditions:
o Align-Rite ERT employees must attend periodic ERT Training sessions to
maintain certification.
o At a minimum, Align-Rite must maintain one trained ERT responder per work
shift.
o Contracted ERT training will be billed at market price.
o Replacement supplies to X00 XXX responses will be billed at market price.
o Contracted ERT Services (e.g., spill response) will be billed at market
price.
o Align-Rite ERT employees must maintain physical requirements and receive
annual ERT physical exams.
x Xxxxxx EHS On Call services available for ERT responses only.
o Building 56 ERT responses are included in this service.
x Xxxxxx EHS/DEO must be aware of any changes of chemicals and volumes (e.g.,
gallons to drum delivery, installation of compressed gases, etc.) to
accurately and efficiently respond to ERT incidents and to ensure the ERT
manual is accurate.
o A 10% management overhead cost will be added for costs of licensing,
certifications, training, insurance, and regulatory compliance activities.
o Align-Rite ERT employees shall respond to all ERT calls on the Complex, and
Xxxxxx ERT employees shall respond to all ERT calls on the Premises.
Exhibit K
Occupational Health Services - Page 1 of 2
Xxxxxx Semiconductor Occupational Health Services places top priority on
employee health by providing quality occupational health services. Services
provided to Align-Rite will include:
o Medical Surveillance: audiometric exams, pulmonary function testing,
baseline and placement physical assessments and periodic assessments as
indicated by job classification.
o Occupational Health Care: initial occupational injury and illness
treatment, initiation of First Report of Injury and referral to acute
medical provider within Align-Rite identified network.
o On site medical response for Emergency Response Team and Medical
Emergencies (first shift only): including training for backshift personnel
in First AID, CPR and obtaining emergency medical assistance. (5 hour
class)
o Maintenance of Medical Records: maintaining medical records observing
guidelines for confidentiality and providing employee access as required by
ADA.
-------------------------------------------------------------------------------------------------------
Services Description Frequency
-------------------------------------------------------------------------------------------------------
1. Medical Surveillance Exams Annual
------------------------------------------------------------------------------- -----------------------
o Respirator Exams (9 current) Annual
-------------------------------------------------------------------------------------------------------
o Emergency Response Team Exams (6 current) Annual
-------------------------------------------------------------------------------------------------------
o Forklift Exams (1 current) Annual
-------------------------------------------------------------------------------------------------------
o Chemical Handler/Maintenance Worker (4 current) Annual
------------------------------------------------------------------------------- -----------------------
o Laser Eye Exams (4 current) Baseline, Exit and Post Event
-------------------------------------------------------------------------------------------------------
o Audiometric Testing + Hearing Conservation Training (1 Current) Annual
-------------------------------------------------------------------------------------------------------
o Baseline/Placement As Needed for New Hires
-------------------------------------------------------------------------------------------------------
2. Occupational Health Care (Avg. 1-2 Accidents Per Year) As Needed
-------------------------------------------------------------------------------------------------------
3. Emergency Medical Response (Avg. 5 per Year) As Needed
-------------------------------------------------------------------------------------------------------
4. Maintenance of Medical Records Ongoing
-------------------------------------------------------------------------------------------------------
5. Non-Occupational Health Care (Approximately 10 per month) As Needed
-------------------------------------------------------------------------------------------------------
6. Training Annual (5 hours total)
-------------------------------------------------------------------------------------------------------
o CPR - AD8T-02
-------------------------------------------------------------------------------------------------------
o First Aid - AD8T-45
-------------------------------------------------------------------------------------------------------
o Bloodborne Pathogens - AEU4-32
-------------------------------------------------------------------------------------------------------
o Emergency Procedures (Supervisor Training) - AD8T-44
-------------------------------------------------------------------------------------------------------
Currently, there are five Health Services employees. Estimated time for ITG
needs would be 120 hours of Nursing Time Plus 12 hours of Medical Director time
for review of physical assessments and consultation on Occupational Issues.
Laser Eye exams would be scheduled by Occupational Health with appropriate
Ophthalmologist and charged at the market price.
Exhibit K
Occupational Health Services - Page 2 of 2
Detail specialized education and skills required to provide this service:
Registered Nurse licensed to practice in the State of Florida having physical
assessment skills. Completion of a NIOSH approved training in Occupational
Pulmonary Function Testing is required. COAHC certification is required for
Audiometric Testing. Nurses operated under the direction of an Medical Doctor
licensed in the State of Florida, possessing certification in Occupational
Medicine. This physician reviews all ERT physical assessments, as required per
OSHA, and other abnormal findings.
--------------------------------------------------------------------------------------------------------
Itemized services Approx. Cost ($)
--------------------------------------------------------------------------------------------------------
1. Respirator exam $ 90 each
--------------------------------------------------------------------------------------------------------
2. Emergency Response Team Exams $100 each
--------------------------------------------------------------------------------------------------------
3. Forklift Exam $ 50 each
--------------------------------------------------------------------------------------------------------
4. Audiometric Testing and Training $ 80 each
--------------------------------------------------------------------------------------------------------
5. Laser Eye Exams $150 each
--------------------------------------------------------------------------------------------------------
6. Chemical Handler/Maintenance exams $ 90 each
--------------------------------------------------------------------------------------------------------
7. Pre-placement/baseline exams $ 90 each
--------------------------------------------------------------------------------------------------------
8. Occupational Health Care $ 30 per visit
--------------------------------------------------------------------------------------------------------
9. Emergency Medical Response $ 30 per call
--------------------------------------------------------------------------------------------------------
10. Maintenance of Medical Records $100 per month
--------------------------------------------------------------------------------------------------------
11. Training (First Aid, CPR, BBP, Emergency Procedures = 5 hours) $62.50 each plus $10 materials
--------------------------------------------------------------------------------------------------------
Please note the following conditions:
o Proposed services to be contracted annually on a fiscal year basis. Pricing
reflects FY '00 costs. If an extension to this contract beyond FY "00 is
desired, anticipate a 10% price increase per fiscal year.
o A 10% management overhead cost will be added for costs of licensing,
certifications, insurance, training, insurance and regulatory compliance
activities.
o Current medical records of HSS employees transitioning to Align-Rite will
be retained by HSS.
o Desired EHS training can be scheduled through the HSS Training Department,
as appropriate. A minimum of five (50 employees are required for each
class, including Xxxxxx employees.
o Maintenance of Medical Records is closely related to the medical exams and
Occupational Health care. HSS would not choose to provide medical records
maintenance if not selected to provide medical surveillance and
occupational health services.
Exhibit L
Environmental, Health & Safety
--------------------------------------------------------------------------------------------------------------------------------
Services Description Frequency
--------------------------------------------------------------------------------------------------------------------------------
1. Collect acid and solvent "RCRA empty" one gallon containers and Daily
prepare for disposal (triple rinse acid bottles, crush all bottles,
and prepare for disposal)
--------------------------------------------------------------------------------------------------------------------------------
2. Delivery empty drums to B60 as needed for waste accumulation. As needed
--------------------------------------------------------------------------------------------------------------------------------
EHS Environmental Operators have been trained in the following areas:
o RCRA Hazardous Waste Management
o DOT
o Hazardous Materials/ERT
o Hazard Communication
--------------------------------------------------------------------------------------------------------------------------------
Itemized services Approx. Monthly Cost ($)
--------------------------------------------------------------------------------------------------------------------------------
1. Bottle collection and disposal $100
--------------------------------------------------------------------------------------------------------------------------------
2. Empty drum purchase, storage, and disposition to X00 Xxxxxx price of drum ($15-30 depending on drum type)
--------------------------------------------------------------------------------------------------------------------------------
EHS offers to provide the above listed services with the following conditions:
o All RCRA empty bottles sent to Building 55 must be emptied to the maximum
extent possible and caps must be tightly screwed on.
o Acid and solvent bottles must be segregated in separate collection
containers provided by Xxxxxx.
o Pricing relfects FY '00 costs. If an extension to this proposal beyond FY
"00 is desired, anticipate a 10% price increase per fiscal year
o A 10% management overhead cost will be added for costs of certifications,
administrative work training, insurance and regulatory compliance
activities.
o Anticipate that all billing will be conducted on a quarterly basis.
Exhibit M
Security
--------------------------------------------------------------------------------
Itemized services Approx. Monthly Cost ($)
--------------------------------------------------------------------------------
1. All services as set forth in Section 9
of the Lease Agreement $834.00
--------------------------------------------------------------------------------
Xxxxxx will not be able to provide computer security services for at
least the next two years. It takes specialized technical expertise to write
security plans for the equipment in the Mask Fab. Due to a recent greatly
diminished capability of the EES computer security staff, Xxxxxx no longer has
the ability to tap into that pool of expertise.
Xxxxxx will help Align-Rite find a consulting firm capable of working with
both the Department of Defense and the National Security Agency. Such a firm can
provide the technical expertise necessary to write computer security plans and
support government audits on an "as needed" basis. This service would only be
required occasionally when there are changes to already existing computer
security plans and when new equipment with memory needs to be used for
classified processing.
**Please note, there may be a period of time while the government is doing
its investigation when Align-Rite will not have the ability to process
classified information. Xxxxxx has no control over how long this process will
take. While Xxxxxx is doing everything it can to get ready ahead of time,
officially nothing can happen until after the Closing Date.
Exhibit N
Purchasing/Stockroom/Receiving/Shipping/IQC
------------------------------------------------------------------- ------------
Services Description Frequency
--------------------------------------------------------------------------------
1. Purchasing: order placement and administration twice per week
--------------------------------------------------------------------------------
2. Maintain stockroom inventory once per week
--------------------------------------------------------------------------------
3. Receive and deliver to stock and ITG daily
--------------------------------------------------------------------------------
4. Incoming Quality Control (chemicals only) twice per month
--------------------------------------------------------------------------------
5. Shipping (miscellaneous items/non-customer) twice per week
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Itemized services Approx. Monthly Cost ($)
--------------------------------------------------------------------------------
1. XXXX - XXXX SYSTEM, INVENTORY $1000.00
MANAGEMENT, PROCUREMENT, BUILDING
STORAGE, MATERIAL DELIVERY TO BUILDING 60
--------------------------------------------------------------------------------
2. Xxxxxx Copier Service (includes full maintenance
and toner-no paper)
Model 6745 $232.00
Model 6725 $200.00
--------------------------------------------------------------------------------
3. CAFETERIA SERVICES WILL BE DIRECT BILLED TO AR
--------------------------------------------------------------------------------
Exhibit O
Telecommunications - Page 1 of 3
The services provided include Data and Voice Communications Services. The
support provided includes design, installation, daily support, and problem
resolution of data networks, voice mail, PBX services, domain name services etc.
Also supported by this group are items such as pagers, cell phones, wireless and
desktop phones, fax machines, Internet service, remote access, local and long
distance calling, DHCP and boot services.
--------------------------------------------------------------------------------
Services Description Frequency
--------------------------------------------------------------------------------
1. NETWORK MONITORING CONSTANT
--------------------------------------------------------------------------------
2. NETWORK MOVES, ADDS, AND CHANGES (MAC'S) RUN RATE = 5 PER MONTH
--------------------------------------------------------------------------------
3. NETWORK PROBLEM RESOLUTION, LEVEL 1
--------------------------------------------------------------------------------
4. NETWORK PROBLEM RESOLUTION, LEVEL 2 25-50 hours annually
--------------------------------------------------------------------------------
5. NETWORK INFRASTRUCTURE
--------------------------------------------------------------------------------
6. INTERNET SERVICE A-R responsibility
--------------------------------------------------------------------------------
7. DOMAIN NAME SERVICE A-R responsibility
--------------------------------------------------------------------------------
8. DHCP SERVICE A-R responsibility
--------------------------------------------------------------------------------
9. BOOTP and TFTP SERVICES A-R responsibility
--------------------------------------------------------------------------------
10. REMOTE ACCESS
--------------------------------------------------------------------------------
11. VIDEO CONFERENCING
--------------------------------------------------------------------------------
12. EQUIPMENT MAINTENANCE - see note #1 on page 3
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Services Description - VOICE Frequency
--------------------------------------------------------------------------------
1. PBX SERVICES
--------------------------------------------------------------------------------
2. LOCAL EXCHANGE SERVICE
--------------------------------------------------------------------------------
3. LONG DISTANCE CALLING
--------------------------------------------------------------------------------
4. VOICE MAC'S
--------------------------------------------------------------------------------
5. VOICE PROBLEM RESOLUTION
--------------------------------------------------------------------------------
6. VOICE MAIL
--------------------------------------------------------------------------------
7. PAGERS, LOCAL and NATIONAL, NUMERIC/ALPHA-NUMERIC
--------------------------------------------------------------------------------
8. FAX MACHINES
--------------------------------------------------------------------------------
9. WIRELESS PHONES
--------------------------------------------------------------------------------
10. CELLULAR PHONES
--------------------------------------------------------------------------------
11. MEET-ME AUDIO CONFERENCING
--------------------------------------------------------------------------------
12. BILLING
--------------------------------------------------------------------------------
Exhibit O
Telecommunications - Page 2 of 3
------------------------------------------------------------------------------------------------------------------------------
Ownership
------------------ Current Book Value Annual Service
Equipment Description Vendor ITG Non-ITG (Non-ITG only) Contract Cost
------------------------------------------------------------------------------------------------------------------------------
1. 10/100M ETHERNET SWITCH, FOUNDRY NETWORKS $3864.95 $695
FASTIRON, 24 PORTS
------------------------------------------------------------------------------------------------------------------------------
2. 10M SHARED HUB, 72 PORTS, SYNOPTICS
3030 WITH 3313SA
------------------------------------------------------------------------------------------------------------------------------
3. 10M SHARED HUB, 72 PORTS, SYNOPTICS
3030 WITH 3313SA
------------------------------------------------------------------------------------------------------------------------------
4. RACK MOUNT UPS APC
------------------------------------------------------------------------------------------------------------------------------
5. RACK MOUNT UPS APC
------------------------------------------------------------------------------------------------------------------------------
6. ASYNCHRONOUS TERMINAL SERVER, XYPLEX
32 PORTS
------------------------------------------------------------------------------------------------------------------------------
7. 10M ETHERNET SWITCH, 8 PORTS NETGEAR
------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Ownership
--------------------- Network Annual Service
Equipment Description ITG Non-ITG Connection Contract Cost
-----------------------------------------------------------------------------------------------------------------
1. 2 NATIONAL PAGERS X $718.80
-----------------------------------------------------------------------------------------------------------------
2. 7 LOCAL ALPHA-NUMERIC PAGERS X $630.00
-----------------------------------------------------------------------------------------------------------------
3. 22 LOCAL NUMERIC PAGERS X $594.00
-----------------------------------------------------------------------------------------------------------------
4. 6 CELLULAR PHONES X $2400.00
-----------------------------------------------------------------------------------------------------------------
5. 8 WIRELESS PHONES X $2112.00
-----------------------------------------------------------------------------------------------------------------
6. 26 DIGITAL OPTIC PHONE SETS X $6864.00
-----------------------------------------------------------------------------------------------------------------
7. 23 ANALOG POTS PHONES X $6072
-----------------------------------------------------------------------------------------------------------------
8. 16 VOICE LINES (MODEMS, ALARM CIRCUITS, X $4224
AND FAXES.)
-----------------------------------------------------------------------------------------------------------------
9. 3 VOICE MAIL BOXES X included
-----------------------------------------------------------------------------------------------------------------
10. 2 FAX MACHINES X $792
-----------------------------------------------------------------------------------------------------------------
11. 1 HOME PHONE LINE X $192
-----------------------------------------------------------------------------------------------------------------
12. 12 REMOTE ACCESS ACCOUNTS X $1728
-----------------------------------------------------------------------------------------------------------------
Exhibit O
Telecommunications - Page 3 of 3
--------------------------------------------------------------------------------
Itemized services Approx. Monthly Cost ($)
--------------------------------------------------------------------------------
1. NETWORK PORTS - 76 PORTS $20 PER PORT
--------------------------------------------------------------------------------
2. VOICE AND DATA MAC'S $90 PER DEVICE MAC REQUEST
--------------------------------------------------------------------------------
3. NETWORK TROUBLESHOOTING, LEVEL 2 $100 PER HOUR
--------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------
Ownership
------------------- Network Monthly
Itemized voice services ITG Non-ITG Connection Cost($)
------------------------------------------------------------------------------------------------------------
1. 2 NATIONAL PAGERS X see note #2 $59.90
------------------------------------------------------------------------------------------------------------
2. 7 LOCAL ALPHA-NUMERIC PAGERS X see note #2 $52.50
------------------------------------------------------------------------------------------------------------
3. 22 LOCAL NUMERIC PAGERS X see note #2 $49.50
------------------------------------------------------------------------------------------------------------
4. 6 CELLULAR PHONES X see note #2 $200
------------------------------------------------------------------------------------------------------------
5. 8 WIRELESS PHONES X $176
------------------------------------------------------------------------------------------------------------
6. 26 DIGITAL OPTIC PHONE SETS X $572
------------------------------------------------------------------------------------------------------------
7. 23 ANALOG POTS PHONES X $506
------------------------------------------------------------------------------------------------------------
8. 16 VOICE LINES (MODEMS, ALARM CIRCUITS, X $352
AND FAXES.)
------------------------------------------------------------------------------------------------------------
9. 3 VOICE MAIL BOXES X included
------------------------------------------------------------------------------------------------------------
10. 2 FAX MACHINES X $44
------------------------------------------------------------------------------------------------------------
11. 1 HOME PHONE LINE X $16
------------------------------------------------------------------------------------------------------------
12. 12 REMOTE ACCESS ACCOUNTS X $144
------------------------------------------------------------------------------------------------------------
Notes
1) Align-Rite must maintain ethernet switch spares if they discontinue annual
maintenance agreements (e.g., Foundry Networks)
2) Align-Rite must obtain their own separate account(s) with local service
provider(s) for pagers and cell phones. Requests for repair service may
still go through Xxxxxx Telecommunications group.
3) Align-Rite will be charged a 2 hour minimum for any call received weekdays
between 5PM-8AM or on weekends or national holidays. The rate for overtime
is $105/Hour Weekdays 5PM-8AM, Weekends, or National Holidays. 4) The
service fees are valid from July 4, 1999 through June 30, 2000.
Exhibit P
Quality Engineering
Measure bacteria levels in deionized water used in the manufacture of mask
plates. Bacterial measurement water samples are taken at a port entering Xxxx.
00 and from the clean room area within the mask fab.
-------------------------------------------------------------------------------------------
Services Description Frequency
-------------------------------------------------------------------------------------------
1. Measure bacteria levels at the entering port to Xxxx. 00 Every 2 weeks
-------------------------------------------------------------------------------------------
2. Measure bacteria levels in mask fab Every 4 weeks
-------------------------------------------------------------------------------------------
------------------------------------------------------------------------------- -----------
Itemized Services Approx. Monthly Cost ($)
-------------------------------------------------------------------------------------------
1. D.I. Water Testing $310.00
-------------------------------------------------------------------------------------------
Additional requirements are for Align-Rite to perform this testing:
o Align-Rite notification system and contact for out of tolerance to let
Xxxxxx know of water issues
o Safety shower/eye wash
o D.I. Water Source
o Solvent Sink
Exhibit Q
Internal Quality Audit Group
-------------------------------------------------------------------------------------
Services Description Frequency
-------------------------------------------------------------------------------------
1. Audit HITG for compliance to QML and ISO 9002. 1 time a year
Prepare audit report and distribute to auditee
and management. Follow up on corrective action.
-------------------------------------------------------------------------------------
2. Support ISO 9002 Periodical audit 2 times a year
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
Itemized services Approx. Monthly Cost ($)
-------------------------------------------------------------------------------------
1. Internal Quality Audit Labor = 160 hrs. @ 12.75/hr. 2040 annually
-------------------------------------------------------------------------------------
2. System time for Audit reports @ 10.25/hr for 10 hrs. 102.50 annually
-------------------------------------------------------------------------------------
Align-Rite will schedule time for audit and support personnel as needed by
Auditor. Identify corrective action and completion date and schedule follow up
date.
EXHIBIT E
[FORM OF]
ASSUMPTION AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and pursuant to the Asset Purchase Agreement entered
into as of the close of business on July 2, 1999 (the "Asset Agreement"), by and
among Align-Rite International, Inc., a California corporation ("Parent"),
Align-Rite, Inc., a Florida corporation ("Sub," and together with Parent,
"Buyer"), on the one hand, and Xxxxxx Corporation, a Delaware corporation
("Seller"), acting through its Semiconductor Business Unit, on the other.
Notwithstanding Section 2.2(a) of the Asset Agreement, on the Closing Date,
Buyer hereby assumes only the obligations of Seller under the Assumed Contracts
to the extent such obligations are to be performed on and after the Closing Date
(but excluding any liability or obligation to a third party arising from a
breach of such Assumed Contract before the Closing or based on actions or
inactions of Seller prior to the Closing or arising out of Seller's failure to
obtain a required Consent to the assignment of an Assumed Contract to Buyer),
obligations for employee wages, salaries and benefits as provided in Section 7.4
of the Asset Agreement, and Buyer's responsibility to replace Photomasks as set
forth in Section 2.2(c) of the Asset Agreement (the "Assumed Liabilities").
This Assumption Agreement shall be binding upon and inure to the benefit of
Buyer and Seller and their respective successors in interest.
Capitalized terms used and not defined herein have the meanings assigned to
them in the Asset Agreement.
1
IN WITNESS WHEREOF, the parties hereto have caused this Assumption
Agreement to be executed as of July 2, 1999.
ALIGN-RITE INTERNATIONAL, INC.,
a California corporation
By:
---------------------------------------
Xxxxx XxxXxxxxx
Chairman of the Board
and Chief Executive Officer
ALIGN-RITE, INC.,
a Florida corporation
By:
---------------------------------------
Xxxxx XxxXxxxxx
Chairman of the Board
XXXXXX CORPORATION,
a Delaware corporation
By:
---------------------------------------
X.X. Xxxxxx
Vice President-General Manager
Operations
2
EXHIBIT F
July 2, 1999
Align-Rite International, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Re: Asset Purchase Agreement-Xxxxxx Photomask Business
Gentlemen:
I am Senior Counsel for Xxxxxx Corporation, a Delaware corporation
("Xxxxxx"), assigned to the Semiconductor Sector and have acted as such in
connection with the Asset Purchase Agreement by and between Xxxxxx, and
Align-Rite International, Inc., a California corporation ("Align-Rite"), dated
as of July 2, 1999 (the "Asset Purchase Agreement"). Unless otherwise defined
herein, terms defined in the Asset Purchase Agreement and used herein shall have
the meanings given to them in the Asset Purchase Agreement.
The opinions expressed below are furnished pursuant to Section 7.6 of the
Asset Purchase Agreement.
In connection with the opinions expressed below, I have examined and relied
on the originals, or copies certified or otherwise identified to my satisfaction
of the Asset Purchase Agreement and each of the ancillary agreements thereto,
including, the Photomask Supply and Strategic Alliance Agreement, the Site
Services Agreement and the Facility Lease, ("Transaction Documents") to which
Xxxxxx is a party. In connection with rendering the opinions expressed below, I
have also examined and relied upon originals, or copies authenticated to my
satisfaction, of such public and corporate records, certificates of public
officials and of officers and representatives of Xxxxxx and other documents and
instruments as I have deemed relevant and necessary as the basis for the
opinions expressed below.
I have assumed for purposes of the opinions expressed below that (i) all
Transaction Documents have been duly authorized, executed and delivered by the
respective parties thereto other than Xxxxxx, (ii) the respective parties
thereto which are corporations, other than Xxxxxx, are duly organized and
validly existing under the laws of the respective jurisdictions of their
organization and have full power, authority and legal right to execute, deliver
and perform each Transaction Document to which they are parties, and (iii) such
authorization, execution and delivery by each party thereto, other than Xxxxxx,
did not, and such performance will not, breach or constitute a violation of any
applicable law.
In rendering the opinions set forth herein, I have also assumed, with your
permission, without independent investigation or inquiry, that: (i) all
1
documents submitted to me as originals are authentic; (ii) all documents
submitted to me as certified; conformed or photostat copies conform to the
original documents; (iii) all signatures of parties other than Xxxxxx on all
documents submitted to me for examination are genuine; (iv) all natural persons
who executed any of the documents that were reviewed or relied upon by me had
full legal capacity at the time of such execution; and (v) all public records
reviewed by me or on my behalf are accurate and complete.
As to various matters of fact relevant to the opinions herein expressed, I
have assumed the correctness of, and have relied upon, the statements and
representations, including, without limitation, the statements and
representations contained in the Transaction Document, and certificates of
Xxxxxx and their respective officers, and on certificates of public officials
and other Persons.
Based on the foregoing and subject to the limitations, assumptions and
qualifications set forth herein, I am of the opinion that:
X. Xxxxxx is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and has full
corporate power and authority to execute and deliver the Asset Purchase
Agreement and each of the other Transaction Documents to which Xxxxxx is a
party, and to perform its obligations thereunder. The foregoing opinion as
to good standing is based solely upon a certificate provided by an agency
of the State of Delaware, a copy of which Xxxxxx has delivered to you at
the Closing, and is limited to the meaning ascribed to such certificate by
such Government Authority.
B. All corporate proceedings required to be taken by Xxxxxx to
authorize it to execute and deliver the Asset Purchase Agreement and each
of the other Transaction Documents to which Hams is a party, and to
consummate the contemplated transactions, have been duly and validly taken.
The Asset Purchase Agreement and each of the other Transaction Documents to
which Xxxxxx is a party has been duly and validly authorized, executed and
delivered by Xxxxxx.
C. To my knowledge, there is no claim, action, suit, proceeding or
governmental investigation pending, threatened against or involving Xxxxxx
which questions the validity of the Asset Purchase Agreement or seeks to
prohibit, enjoin or otherwise challenge the contemplated transactions.
D. Neither the execution and delivery of the Asset Purchase Agreement
and each of the other Transaction Documents to which Xxxxxx is a party nor
the performance by Xxxxxx of its obligations thereunder will (i) conflict
with, or (ii) result in a breach of the terms, conditions or provisions of,
or (iii) constitute a default under, or (iv) result in the violation of, or
(v) result in the creation of any lien upon any of the material assets of
Xxxxxx, pursuant to (x) the charter or by-laws of Xxxxxx, or (y) any
material agreement or any other material instrument to which Xxxxxx
Semiconductor Sector is a party, and to my knowledge, without any inquiry
or investigation any material agreement or any other material instrument to
which Xxxxxx is a party or by which their properties may be bound.
2
E. The Asset Purchase Agreement and each of the other Transaction
Documents to which Xxxxxx is a party, when duly executed and delivered by
Xxxxxx will constitute, the valid and legally binding obligation of Xxxxxx,
enforceable against Xxxxxx in accordance with its terms, subject, as to
enforcement of remedies, to the laws of bankruptcy, insolvency,
reorganization, receivership, moratorium, fraudulent conveyances and other
similar laws affecting the rights and remedies of creditors generally, and
of principles of equity.
F. No order, consent, permit or approval of any Florida or federal
governmental authority that we have, in the exercise of customary
professional diligence recognized as applicable to Xxxxxx or to the
transactions of the type contemplated by the Transaction Documents is
required on the part of Xxxxxx for the execution and delivery of, and
performance of its obligations under the Transaction Documents.
This opinion relates only to matters as of the date hereof, and I express
no opinion with respect to any events occurring after the date hereof. I have no
obligation to advise you of any changes of law or fact that may hereafter occur,
even though the legal analysis or legal conclusion in the opinion may be
affected.
I am an attorney licensed to practice law in the State of Florida. This
opinion is limited to matters governed by the federal laws of the United States
and the General Corporation Law of the State of Delaware, and I do not express
an opinion as to the laws, rules, regulations, codes, or other promulgation of
any other jurisdiction (including state, local, or regional bodies). With
respect to the opinions concerning matters governed by the General Corporation
Law of the State of Delaware, you are aware that I am not admitted to the Bar of
the State of Delaware and the such opinions are based upon my general
familiarity with the General Corporation Law of the State of Delaware.
The opinions expressed herein are limited to the matters expressly set
forth in this letter, and no other opinions should be inferred beyond the
matters expressly stated.
This opinion has been rendered to you for your exclusive use solely in
connection with the transactions contemplated by the Asset Purchase Agreement
and may not be used, circulated, quoted, relied upon or otherwise referred to
for any other purpose without my prior written consent.
Very truly yours,
Xxxxxx X. Xxxxxxx, Esq.
Senior Counsel
3
EXHIBIT G
July 2, 1999
Align-Rite International, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Re: Asset Purchase Agreement-dated as of July 2, 1999, by and between Xxxxxx
Corporation, on the one hand and Align-Rite International, Inc., on the
other hand (the "Asset Purchase Agreement")
Gentlemen:
This certificate is delivered to you by the undersigned in compliance with
Section 8.2(a) of the Asset Purchase Agreement and as an inducement to and part
of the consideration of the sale on this date by Xxxxxx Corporation ("Xxxxxx")
of the assets identified in the Asset Purchase Agreement constituting the
Photomask Business of the Semiconductor Business Unit of Xxxxxx to Align-Rite
International, Inc. ("Align-Rite") and its subsidiaries. Terms used herein with
initial capital letters shall, unless otherwise defined herein, have the
respective meanings assigned thereto in the Asset Purchase Agreement.
The undersigned, a representative of Xxxxxx, hereby certifies that:
1. The representations and warranties of Xxxxxx contained in the Asset
Purchase Agreement or otherwise made on behalf of Xxxxxx (in writing) in
connection with the transaction contemplated by the Asset Purchase
Agreement are true and correct in all material respects on and as of the
date of this Certificate with the same effect as though such
representations had been made on and as of the date of this Certificate.
2. Xxxxxx has duly performed and complied in all material respects
with its covenants and obligations as required by the Asset Purchase
Agreement to be performed on or prior to the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand on behalf of Xxxxxx
Corporation this 2nd day of July, 1999.
XXXXXX CORPORATION
By
----------------------------------------
Name: X.X. Xxxxxx
Title: Vice President-General Manager
Operations
4