EXHIBIT 10.6
THIS OPTION HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED, THE SECURITIES LAWS OF ANY STATE IN THE UNITED STATES, OR ANY
SECURITIES LAWS OF GERMANY.
KONTRON EMBEDDED COMPUTERS AG
OPTION TO PURCHASE
60,000 BEARER SHARES
WITHOUT PAR VALUE
This Option is issued for value received, in consideration of the
execution and delivery of that certain Purchase and Option Agreement, dated as
of June 29, 2000 (the "FWRX Agreement") by and among, Fieldworks, Incorporated,
a Minnesota corporation ("Fieldworks"), FWRKS Acquisition Corp., a wholly owned
susidiary of Kontron Embedded Computers AG, the issuer of this Option,
Industrial-Works Holding Co., LLC, a Delaware limited liability company
("Purchaser"). Purchaser for such consideration and its successors or permitted
assigns ("Holder"), is entitled to purchase from Kontron Embedded Computers AG,
a German corporation (the "Company"), 60,000 fully paid and nonassessable no par
bearer shares of the Company (the "Kontron Shares"; the "Company Stock"), in
exchange for 2,428,600 shares of Series B Convertible Preferred Stock of
Fieldworks and 285,700 shares of Series C Convertible Preferred Stock of
Fieldworks held by the Purchaser, which preferred shares are currently
convertible into an aggregate of 3,000,000 shares of common stock of Fieldworks
(collectively, the "Fieldworks Shares"; the "Exercise Price").
This Option may be exercised only with respect to all 60,000 Kontron
Shares, and only in connection with the closing of the share purchase
transactions contemplated by the FWRX Agreement after the exercise of the "First
Option" under the FWRX Agreement. This Option may be exercised on or before
October 2, 2000 by the Holder at any time following the receipt by Fieldworks of
notice that the Company intends to exercise its rights to the First Option under
the FWRX Agreement; however, receipt of such notice by Fieldworks creates no
obligation on the part of the Holder to exercise this Option. If the
transactions contemplated by the FWRX Agreement fail to close on or before
November 15, 2000, or if this Option is not exercised on or prior to the Closing
Date of such transactions (as defined in the FWRX Agreement)(the "Closing
Date"), this Option shall expire and shall be null and void.
This Option is subject to the following terms and conditions:
1. Notice of Exercise. If the Holder elects to exercise its
rights under this Option, the Holder shall provide notice to the Company on or
prior to October 2, 2000 of its irrevocable intent to exercise this Option in
accordance with the procedures described below (the "Notice"). Once given, the
Notice shall be irrevocable, and, subject to Section 9, shall create a binding
obligation upon the Holder to transfer the Fieldworks Shares to the Company, and
upon the Company to issue the Kontron Shares to the Holder in
exchange for the Fieldworks Shares. Upon giving Notice to the Company, the
Holder may not take any action to transfer, pledge, or otherwise encumber or
dispose of, the Fieldworks Shares subject to the notice except in connection
with this Option, unless the transactions contemplated hereby fail to close.
2. Exercise. Following delivery of the Notice, the rights
represented by this Option shall be exercised by the Holder, for the full number
of the Kontron Shares only, by delivery to the Company (or its designated
representative) on the Closing Date of payment to the Company in the form of one
or more stock certificates representing the Fieldworks Shares, with stock powers
properly endorsed and signatures guaranteed, in full payment of the Exercise
Price for the Kontron Shares. The Kontron Shares shall be deemed to be issued as
of the close of business on the Closing Date. Certificates for the Kontron
Shares shall be delivered to Holder on the later of the Closing Date and the
time Holder delivers the certificates representing the Exercise Price. If not
delivered within such time, such certificates shall at Holder's option be
replaced by cash having a value equal to the greatest value of the Kontron
Shares in the period from the Closing Date to three days after the Closing Date.
Holder may, in lieu thereof, require specific performance of Kontron's
obligation to delivery Kontron Shares.
3. Opinion of Counsel. In connection with the exercise of this
Option, on the Closing Date, (i) the Holder shall deliver to the Company an
opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the Holder,
covering the matters described on Exhibit 1; and (ii) the Company shall deliver
to the Holder an opinion of counsel to the Company, covering the matters
described on Exhibit 2, in each case reasonably satisfactory to the recipient.
4. Representations and Warranties of the Company. The Company
represents and warrants to Purchaser as follows:
(a) Corporate Organization. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
Republic of Germany, and has all requisite corporate power and authority to own,
operate and lease its properties and to carry on its business as and in the
places where such properties are now owned, operated and leased or such business
is now being conducted.
(b) Authorization. The Company has the necessary
corporate power and authority to enter into this Agreement and to assume and
perform its obligations hereunder. The execution and delivery of this Agreement
and the performance by the Company of its obligations hereunder have been duly
authorized by the Supervisory Board of the Company. This Agreement has been duly
executed and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable against it in accordance with its terms,
except as the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or
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other similar laws affecting creditors' rights generally or by the principles
governing the availability of equitable remedies.
(c) Transferability of Shares. The Company does not
believe that the Kontron Shares will be subject to any restrictions on
transferability by the applicable securities laws of Germany upon issuance to
the Holder. However, to the extent that the transferability of the Kontron
Shares is restricted by the applicable securities laws of Germany, the Company
shall cause such restrictions to be removed prior to February 2001, and the
Kontron Shares shall be freely transferable on the Neuer Markt of the
Frankfurter Wertpapierborse by the Holder at that time.
5. Shares. All Kontron Shares issuable upon the exercise of the
rights represented by this Option shall, upon issuance, be duly authorized and
issued, fully paid and nonassessable shares. From the date this Option is issued
through the date the Option is exercised by the Holder or expires as described
above, the Company shall at all times have authorized and reserved for the
purpose of issue or transfer upon exercise of the rights evidenced by this
Option a sufficient number of shares of Company Stock to provide for the
exercise of the rights represented by this Option.
6. Adjustment. The Exercise Price shall be subject to adjustment
from time to time as hereinafter provided in this Section 6:
(a) If the Company at any time after the date of this
Option divides the outstanding shares of Company Stock into a greater number of
shares (whether pursuant to a stock split, stock dividend or otherwise), and
conversely, if the outstanding shares of Company Stock are combined into a
smaller number of shares, the Exercise Price in effect immediately prior to such
division or combination shall be proportionately adjusted to reflect the
reduction or increase in the value of each such share of Company Stock
(b) If any stock dividend , capital reorganization or
reclassification of the capital stock of the Company, or consolidation or merger
of the Company with another corporation, or the sale of all or substantially all
of its assets to another corporation shall be effected in such a way that
holders of the Company Stock shall be entitled to receive stock, securities or
assets with respect to or in exchange for such common stock, then, as a
condition of such stock dividend, reorganization, reclassification,
consolidation, merger or sale, Holder shall have the right to purchase and
receive upon the basis and upon the terms and conditions specified in this
Option and in lieu of the Kontron Shares immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby, such shares of
stock, other securities or assets as would have been issued or delivered to the
Holder if Holder had exercised this Option and had received the Kontron Shares
immediately prior to such stock dividend, reorganization, reclassification,
consolidation, merger or sale. The Company shall not effect any such
consolidation, merger or sale unless prior to the consummation thereof the
successor corporation (if other than the Company) resulting from such
consolidation or merger or the corporation purchasing such assets shall assume
by written instrument executed and mailed to Holder at the last address of
Holder appearing on the books of the
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Company the obligation to deliver to Holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, Holder may be entitled
to purchase.
(c) Upon any adjustment of the Exercise Price, Holder
shall thereafter be entitled to purchase, at the Exercise Price resulting from
such adjustment, the number of shares of Company Stock obtained by multiplying
the Exercise Price in effect immediately prior to such adjustment by the number
of Kontron Shares purchasable pursuant hereto immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
(d) Upon any adjustment of the Exercise Price in
accordance with the foregoing, the Company shall give written notice thereof to
Holder, and Company and Holder shall determine the adjusted number of shares of
Company Stock that Holder will then be entitled to purchase pursuant to this
Option.
7. No Rights as Shareholder. This Option does not entitle Holder
to any voting rights or other rights as a shareholder of the Company.
8. Transfer. This Option and all rights hereunder are
transferable, in whole or in part, by the holder hereof in person or by the
holder's duly authorized attorney, upon surrender of this Option properly
endorsed to any person or entity who represents in writing that it is a
Permitted Transferee who is acquiring the Option for investment and without any
view to the sale or other distribution thereof and who is simultaneously
acquiring sufficient shares of Series B and Series C Convertible Preferred Stock
of Fieldworks to exercise this Option. Each holder of this Option, by taking or
holding the same, consents and agrees that the bearer of this Option, when
endorsed, may be treated by the Company and all other persons dealing with this
Option as the absolute owner hereof for any purpose and as the person entitled
to exercise the rights represented by this Option, or to the transfer hereof on
the books of the Company, any notice to the contrary notwithstanding; but until
such transfer on such books, the Company may treat the registered owner hereof
as the owner for all purposes. For purposes of this Agreement, "Permitted
Transferee" shall mean (a) any corporation, partnership or limited liability
company all of the outstanding securities and other interests of which are owned
by the Purchaser, or (b) any person or entity that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is under
common control with the Purchaser.
9. Conditions to Closing. Closing of the transactions
contemplated by this Option is subject to the following conditions:
(a) Fieldworks shall have obtained from its shareholders
all approvals necessary to permit the Fieldworks Shares to be transferred to the
Company pursuant to this Option, and to the extent required, to permit the
securities issued to the Company pursuant to the FWRX Agreement to be voted by
the Company, and to be free from restrictions on transfer, in accordance with
Section 302A.671 of the Minnesota Business Corporation Act;
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(b) the Company and Fieldworks shall have received notice
of the termination of all waiting periods required, if any, pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX Xxx"), in
connection with the transactions contemplated by FWRX Agreement and this Option;
(c) The Company shall have received a satisfactory
valuation with respect to the exchange ratio of the Fieldworks Shares for the
Kontron Shares in accordance with the provisions of Section 183 of the Stock
Corporation Act of Germany; and
(d) The transactions contemplated by the FWRX Agreement,
including the purchase of capital stock of Fieldworks pursuant to the FWRX
Agreement, shall close simultaneously with those contemplated hereby and all
conditions to such closings shall have been satisfied or waived by the parties
entitled to waive them.
10. Transferability of Shares. The Company does not believe that
the Kontron Shares will be subject to any restrictions on transferability upon
issuance to the Holder. However, to the extent that the transferability of the
Shares is restricted by the applicable securities laws of Germany, the Company
shall cause such restrictions to be removed prior to February 2001, and the
Kontron Shares shall be freely transferable on the Neuer Markt of the
Frankfurter Wertpapierborse by the Holder at that time.
11. Notices. All demands and notices to be given hereunder shall
be delivered or sent by first class mail, postage prepaid; in the case of the
Company, addressed as follows:
Kontron Embedded Computers AG
Xxxxx-xxx-Xxxxxx-Xxxxxx 0, 00000
Xxxxxx, Xxxxxxx
With a copy (which shall not constitute notice) to
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
until a new address shall have been substituted by like notice; and in the case
of the Holder, addressed to the Holder at the address written below, until a new
address shall have been substituted by like notice.
Industrial-Works Holding Co. LLC
c/o Glenmount International
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
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12. Governing Law. This Option shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware without reference to the conflicts of laws provisions
thereof.
13. Termination. This Option, and the rights and obligations of
the parties hereunder, shall terminate and be of no further force and effect
upon the occurrence of any of the following:
(a) the failure of Fieldworks to obtain all necessary
shareholder approval as set forth in Section 9(a), above on or before November
15, 2000;
(b) the failure of Fieldworks and the Company to obtain
the required notices of expiration of waiting periods pursuant to the HSR Act,
as described in Section 9(b), above on or before November 15, 2000;
(c) failure of the Closing to have occurred on or before
November 15, 2000, provided that the party seeking to terminate this Option is
not then in breach of any of its material obligations under this Option; or
(d) either of the parties hereto becomes subject to a
final and non-applicable court order prohibiting the transactions contemplated
this Option.
14. Entire Agreement and Amendment. This Option and the FWRX
Agreement constitute the entire agreement between the parties hereto with
respect to the subject matter contained herein and supersedes all prior oral or
written agreements, if any, between the parties hereto with respect to such
subject matter and, except as otherwise expressly provided herein, are not
intended to confer upon any other person any rights or remedies hereunder. Any
amendments hereto or modifications hereof must be made in writing and executed
by each of the parties hereto.
[The remainder of this page intentionally is left blank, signature page follows]
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[SIGNATURE PAGE TO PUT OPTION]
IN WITNESS WHEREOF, the Company has caused this Option to be executed
and delivered by a duly authorized officer.
Dated: June 29, 2000
KONTRON EMBEDDED COMPUTERS AG
By
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By
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Name and Address of Holder:
Industrial-Works Holding Co., LLC
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
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OPTION EXERCISE AND CONTRIBUTION AGREEMENT
(To be signed only upon exercise of this Option)
The undersigned, the Holder of the foregoing Option, hereby irrevocably
elects to exercise the purchase right represented by such Option for, and to
purchase thereunder, 60,000 no par bearer shares of Kontron Embedded Computers
AG ("Kontron"; the "Kontron Shares"), to which such Option relates and herewith
makes payment therefor by contributing to the capital of Kontron 2,428,600
shares of Series B Preferred Stock and 285,700 shares of Series C Preferred
Stock of Fieldworks, Incorporated ("Fieldworks"; the "Contributed Shares"), and
are represented by the following certificates:
Class/Series Certificate Number of
of Shares Number Shares
--------- ------ ------
Title to the Contributed Shares shall not pass to Kontron unless and
until the Kontron Shares are properly registered in Kontron's Commercial
Register pursuant to the Stock Corporation Act of Germany. Upon fulfillment of
all conditions necessary to issue the Kontron Shares to the Holder, the Holder
requests that the certificates for the Kontron Shares be issued in the name of,
and be delivered to ______________, whose address is set forth below the
signature of the undersigned.
The undersigned undertakes to execute such documents as may be needed
under German law to contribute the Contributed Shares and subscribe for the
Kontron Shares.
Industrial-Works Holding Co., LLC
Dated: By:
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Please print name and address for delivery
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ASSIGNMENT
(To be signed only upon transfer of this Option)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto __________________ the right represented by the foregoing option to
purchase no par bearer shares of Kontron Embedded Computers AG ("Kontron"), and
appoints _____________ attorney to transfer such right on the books of Kontron,
with full power of substitution in the premises.
Dated: Industrial-Works Holding Co., LLC
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By:
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Please print name and address for delivery
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EXHIBIT 1
1. IWHC is duly incorporated, validly existing and in good
standing under the laws of the State of Delaware with power and authority to
execute and deliver the Transaction Documents and perform its obligations
thereunder.
2. Each of the Transaction Documents has been duly authorized,
executed and delivered by IWHC and is a valid and binding obligation of IWHC,
enforceable against it in accordance with its terms.
3. Neither the execution and delivery by IWHC of the Transaction
Documents nor the performance of its obligations thereunder will (a) result in
the violation of (i) any federal or Delaware statute or regulation applicable to
or (ii) any order or decree known to us of any court or governmental authority
binding upon IWHC or its property, (b) conflict with the IWHC's Articles of
Formation or Operating Agreement.
4. No registration with or approval by any federal or state
governmental agency is required of IWHC in connection with the execution and
delivery or the performance of the Transaction Documents to which it is a party.
5. The Series B Stock and the Series C Stock is owned of record
by IWHC and the delivery to Kontron at Closing of the certificates representing
the Series B Stock and Series C Stock, upon payment in accordance with the
Agreement, conveys and transfers title to the Series B Stock and Series C Stock
[assumptions].
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EXHIBIT 2
1. Kontron is duly incorporated, validly existing and in good
standing under the laws of Germany with corporate power and authority to execute
and deliver the Option and perform its obligations thereunder.
2. The Option has been duly authorized, executed and delivered by
Kontron and is a valid and binding obligation of Kontron, enforceable against it
in accordance with it terms.
3. Kontron has taken action to issue 60,000 shares of Common
Stock in connection with the exercise of the Option. Assuming the
representations and warranties made by Purchaser in the Certificate are true and
correct, the offer and sale of the Kontron Shares to Purchaser are exempt from
the registration requirements of the Securities Act of 1933 (the "Securities
Act").
4. Neither the execution and delivery by Kontron of the Option
nor the performance of its obligations thereunder will (a) result in the
violation of (i) any German regulation applicable to Kontron or (ii) any order
or decree known to us of any court or governmental authority binding upon
Kontron or its property, (b) conflict with Kontron's Articles of Incorporation
or statutes.
5. The Kontron Shares have been validly authorized, duly issued,
and are fully paid and non-assessable, and the delivery to Purchaser at Closing
of the certificates representing the Kontron Shares conveys and transfers to
Purchaser, good title to the Kontron Shares, [and after February 1, 2001, will
be] [German counsel to conform to facts at Closing] free and clear of
restrictions or conditions to transfer or assignment under the applicable
securities laws of Germany.
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