EXHIBIT 10.6
CVC HOLDINGS, INC.
SECURITIES PURCHASE AGREEMENT
May 22, 1995
TABLE OF CONTENTS
Page
SECTION 1 - Authorization and Sale of Series B Preferred Stock and Warrant . 1
1.1 Authorization .................................................. 1
1.2 Sale of the Securities ......................................... 1
SECTION 2 - The Closing .................................................... 1
2.1 Closing Date ................................................... 1
2.2 Delivery ....................................................... 1
SECTION 3 - Representations and Warranties of the Company and Sub .......... 2
3.1 Organization and Standing ...................................... 2
3.2 Subsidiaries ................................................... 2
3.3 Corporate Power ................................................ 2
3.4 Capitalization ................................................. 3
3.5 Authorization .................................................. 4
3.6 Compliance with Law and Other Instruments; None Burdensome ..... 4
3.7 Governmental Approvals and Filings ............................. 4
3.8 Litigation ..................................................... 5
3.9 Intellectual Property .......................................... 5
3.10 Financial Statements ........................................... 6
3.11 Brokers or Finders ............................................. 8
3.12 Material Contracts ............................................. 8
3.13 Agreements ..................................................... 8
3.14 Employee Agreements ............................................ 8
3.15 Employees ...................................................... 8
3.16 Disclosure ..................................................... 9
3.17 Registration Rights ............................................ 9
3.18 The to Property and Assets ..................................... 9
3.19 Tax Returns and Payments ....................................... 9
3.20 Environmental Matters .......................................... 10
3.21 Related-Party Transactions ..................................... 10
3.22 Insurance ...................................................... 11
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TABLE OF CONTENTS
(continued)
Page
SECTION 4 - Representations and Warranties of Purchaser .................... 11
4.1 Experience ..................................................... 11
4.2 Investment ..................................................... 11
4.3 Rule 144 ....................................................... 12
4.4 No Public Market ............................................... 12
4.5 Access to Data ................................................. 12
4.6 Organization and Standing ...................................... 12
4.7 Corporate Power, Authorization ................................. 12
4.8 Government Approvals and Filings ............................... 12
SECTION 5 - Conditions to Closing of Purchaser ............................. 13
5.1 Representations and Warranties Correct ......................... 13
5.2 Covenants ...................................................... 13
5.3 Opinion of Company's Counsel ................................... 13
5.4 Consents ....................................................... 13
5.5 Blue Sky ....................................................... 13
5.6 Restated Certificate ........................................... 13
5.7 Legal Matters .................................................. 13
5.8 Registration Rights Agreement .................................. 13
5.9 Stockholders' Agreement ........................................ 13
5.10 Warrant ........................................................ 14
5.11 Board of Directors ............................................. 14
5.12. Participation Rights ........................................... 14
5.13 Certificates ................................................... 14
SECTION 6 - Conditions to Closing of Company ............................... 14
6.1 Representations ................................................ 14
6.2 Registration Rights Agreement .................................. 14
6.3 Stockholders' Agreement ........................................ 15
6.4 Consents ....................................................... 15
6.5 Blue Sky ....................................................... 15
6.6 Restated Certificate ........................................... 15
6.7 Warrant ........................................................ 15
6.8 Board of Directors ............................................. 15
6.9. Participation Rights ........................................... 15
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TABLE OF CONTENTS
(continued)
Page
SECTION 7 - Covenants of the Company ....................................... 15
7.1 Basic Financial Information .................................... 15
7.2 Additional Information ......................................... 16
7.3 Employee Agreements ............................................ 17
7.4 Use of Proceeds ................................................ 17
7.5 Prompt Payment of Taxes, etc ................................... 17
7.6 Maintenance of Properties ...................................... 17
7.7 Insurance ...................................................... 17
7.8 Accounts and Records ........................................... 18
7.9 Maintenance of Corporate Existence, etc ........................ 18
7.10 Availability of Common Stock for Conversion .................... 18
7.11 Hirings ........................................................ 18
7.12 Adoption of Stock Option Plans and Issuance of Employee
Stock Options ................................................ 18
7.13 Incurrence of Indebtedness ..................................... 18
SECTION 8 - Miscellaneous .................................................. 19
8.1 Transfer of Certain Rights ..................................... 19
8.2 Governing Law .................................................. 19
8.3 Survival of Representations and Warranties ..................... 19
8.4 Successors and Assigns ......................................... 20
8.5 Entire Agreement; Amendment .................................... 20
8.6 Notices ........................................................ 20
8.7 Delays or Omissions ............................................ 21
8.8 California Qualification ....................................... 21
8.9 Fees of Purchaser's Counsel .................................... 21
8.10 Counterparts ................................................... 21
8.11 Severability ................................................... 21
8.12 Titles and Subtitles ........................................... 22
8.13 Brokers or Finders ............................................. 22
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CVC HOLDINGS, INC.
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "Agreement") is made as of May 22,
1995, by and among CVC Holdings, Inc., a Delaware corporation ("Company"), CVC
Products, Inc., a Delaware corporation and a wholly owned subsidiary of the
Company ("Sub"), and Seagate Technology, Inc., a Delaware corporation
("Purchaser").
SECTION 1
Authorization and Sale of Series B Preferred Stock and Warrant
1.1 Authorization. The Company has authorized the sale and issuance to
Purchaser of 60,492 shares (the "Shares") of the Company's Series B
Non-Cumulative, Convertible Preferred Stock (the "Series B Preferred") and a
warrant (the "Warrant") exercisable for the purchase of shares of Series B
Preferred. The shares of Series B Preferred will have the rights, preferences,
privileges and restrictions as set forth in the Company's Restated Certificate
of Incorporation (the "Restated Certificate") in the form attached hereto as
Exhibit A, and the Warrant shall be in the form attached hereto as Exhibit B.
1.2 Sale of the Securities. Subject to the terms and conditions hereof,
the Company will issue and sell to Purchaser and Purchaser will buy from the
Company the Shares at a cash purchase price of $148.78 per Share, and the
Warrant exercisable for 19,769 shares of Series B Preferred (subject to
adjustment as provided in the Warrant), at a cash purchase price equal to $.0l
per share initially subject to the Warrant, for an aggregate purchase price of
$9,000,197.45 (the "Purchase Price"). The shares of Series B Preferred issuable
upon exercise of the Warrant shall be referred to as the "Warrant Shares." The
shares of common stock, par value $.01 per share, of the Company (the "Common
Stock") issuable upon the conversion of the Shares and the Warrant Shares shall
be referred to as the "Conversion Stock." The Shares, Warrant, Warrant Shares
and Conversion Stock shall be referred to as the "Securities."
SECTION 2
The Closing
2.1 Closing Date. The closing of the purchase and sale of the Shares and
the Warrant hereunder shall be held at the offices of Golenbock, Eiseman, Assor
& Xxxx, at 10:00 a.m., local time, on May 22, 1995 (the "Closing"), or at such
other time and place upon which the Company and Purchaser shall agree (the date
of the Closing is referred to as the "Closing Date").
2.2 Delivery. At the Closing, the Company will deliver to Purchaser a
certificate or certificates, registered in Purchaser's name, representing the
Shares to be purchased by Purchaser, together with the Warrant registered in the
Purchaser's name, against payment of the Purchase Price by certified or bank
check payable to the Company or by wire transfer of immediately available funds.
SECTION 3
Representations and Warranties of the Company and Sub
Except as set forth on Exhibit C attached hereto which identifies by
section and subsection number any exception to a representation and warranty in
this Section 3 as well as the basis for any such exception (the "Disclosure
Schedule"), the Company and Sub, jointly and severally, represent and warrant to
Purchaser as follows:
3.1 Organization and Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted, and
is duly qualified and in good standing to do business in each jurisdiction in
which the nature of its business or the ownership or leasing of its properties
makes such qualification necessary, other than where the failure to so qualify
could reasonably be expected to have a Material Adverse Effect (as defined
below). Sub is a corporation duly organized and validly existing under the laws
of Delaware and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted,
and is duly qualified and in good standing to do business in each jurisdiction
in which the nature of its business or the ownership or leasing of its
properties makes such qualification necessary, other than where the failure to
so qualify could reasonably be expected to have a Material Adverse Effect. The
Company and Sub have each delivered to Purchaser complete and correct copies of
their respective Certificates of Incorporation and Bylaws, including all
amendments thereto. The minute books of the Company and Sub made available to
Purchaser's counsel for review contain a complete summary of all meetings of and
actions by directors and shareholders of the Company, from the time of
incorporation to the date hereof, and of Sub, from January 1, 1990 to the date
hereof, and reflect all transactions referred to in such minutes accurately in
all material respects.
As used in this Agreement "Material Adverse Effect" means any event,
change or effect that is materially adverse to the condition (financial or
otherwise), properties, assets, liabilities, businesses, operations, or results
of operations of the Company and Sub, taken as a whole.
3.2 Subsidiaries. There is no corporation or other entity, other than Sub
in the case of the Company, whose voting securities are owned or are otherwise
controlled directly or indirectly by the Company or Sub. Neither the Company nor
Sub owns, beneficially or of record, any capital stock or other equity
securities of any corporation, nor does it have any direct or indirect equity or
other ownership interest in any business or entity. The Company is the owner of
all outstanding shares of capital stock of Sub and all such shares are duly
authorized, validly issued and fully paid. All of the outstanding shares of
capital stock of Sub are owned by the Company free and clear of all liens,
charges, claims or encumbrances.
3.3 Corporate Power. The Company has all requisite corporate power and
authority to execute and deliver this Agreement, the Amended and Restated
Stockholders' Agreement attached hereto as Exhibit D (the "Stockholders'
Agreement"), the Registration Rights Agreement attached
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hereto as Exhibit E (the "Registration Rights Agreement") and the Warrant
(collectively, the "Other Agreements"); to sell and issue the Shares and the
Warrant hereunder; to sell and issue the Warrant Shares upon exercise of the
Warrant; to issue the Common Stock issuable upon conversion of the Preferred
Stock and the Warrant Shares and to carry out and perform its obligations under
the terms of this Agreement and the Other Agreements, and to consummate the
transactions contemplated hereby and thereby. Sub has all requisite corporate
power and authority to execute and deliver this Agreement and to carry out and
perform all of its obligations under the terms of this Agreement, and to
consummate the transactions contemplated hereby.
3.4 Capitalization. Immediately prior to the Closing, the authorized
capital stock of the Company will consist of (a) 1,500,000 shares of Common
Stock, of which 18,379 shares will be issued and outstanding; and (b) 102,500
shares of Preferred Stock (the "Preferred Stock"), of which 2,500 shares have
been designated 8% Non Cumulative Preferred Stock (the "Series A Preferred"),
1,685 of which are issued and outstanding, and 100,000 shares have been
designated Series B Preferred, none of which is issued or outstanding prior to
Closing. All of such issued and outstanding shares have been duly authorized and
validly issued, are fully paid and nonassessable and have been issued in
compliance with applicable securities laws. The Series B Preferred and the
Warrant to be issued and sold to the Purchaser have been duly authorized and
when issued in accordance with the terms of this Agreement and the Restated
Certificate, in the case of the Series B Preferred, will be validly issued,
fully paid and nonassessable. The Warrant Shares issuable upon exercise of the
Warrant and the Conversion Stock issuable upon conversion of the Warrant Shares
and the Shares have been duly and validly reserved and, when issued in
compliance with the provisions of this Agreement, the Warrant and the Restated
Certificate, will be validly issued, fully paid and nonassessable. The Company
has reserved (a) 100,000 shares of Common Stock for issuance upon conversion of
the authorized shares of Series A Preferred, (b) 60,492 shares of Series B
Preferred for issuance hereunder, (c) 19,769 shares of Series B Preferred for
issuance upon exercise of the Warrant and (d) 80,261 shares of Common Stock for
issuance upon conversion of the Shares and the Warrant Shares. The Company has
reserved 41,646 shares of its Common Stock for issuance pursuant to the exercise
of options granted or to be granted to employees, consultants or directors under
stock plans or arrangements approved by the Company's Board of Directors (the
"Board of Directors"), including 31,646 shares subject to currently outstanding
options. The Series A Preferred and the Series B Preferred have the rights,
preferences, privileges and restrictions set forth in the Restated Certificate.
Immediately prior to the Closing, the Company's issued and outstanding
securities (including its outstanding options) will be held by the persons and
in the amounts set forth in Section 3.4 of the Disclosure Schedule. Except as
set forth above or as contemplated by this Agreement and the Other Agreements,
there are not any options, warrants, calls, conversion rights, commitments or
agreements of any character to which the Company or Sub is a party or by which
any of them may be bound obligating the Company or Sub to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares of capital
stock of the Company or of Sub or obligating the Company or Sub to grant, extend
or enter into any such option, warrant, call, conversion right, commitment or
agreement. Except as contemplated by the Other Agreements, there are no voting
agreements or voting trusts among, or irrevocable proxies executed
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by, or other shareholder agreements between or among, the holders of the
Company's capital stock which are on file with the Company or of which the
Company has knowledge.
3.5 Authorization. All corporate action on the part of the Company, its
directors and stockholders necessary for the authorization, execution, delivery
and performance by the Company of this Agreement and the Other Agreements; the
authorization, sale, issuance and delivery of the Securities; the reservation of
the Common Stock issuable upon conversion of the Series B Preferred, the
reservation of the Series B Preferred issuable upon exercise of the Warrant and
the performance of all of the Company's obligations under the terms of this
Agreement and the Other Agreements has been taken. All corporate action on the
part of Sub, its directors and stockholders necessary for the authorization,
execution, delivery and the performance by Sub of this Agreement has been taken.
This Agreement is and the Other Agreements, when executed and delivered by the
Company and Sub, as applicable, shall constitute valid and binding obligations
of the Company and Sub, as applicable, enforceable in accordance with their
respective terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing specific
performance, injunctive relief or other equitable remedies, except for the
indemnification provisions of Section 5.7 of Registration Rights Agreement, the
enforcement of which may be against public policy. The Securities are not
subject to preemptive rights or rights of first refusal and will be free of
restrictions on transfer other than under applicable federal and state
securities laws, and as set forth in this Agreement and the Other Agreements.
The Securities, when issued in compliance with the terms of this Agreement, will
be free of any liens or encumbrances, other than liens and encumbrances created
by Purchaser. The Shares, the Warrant and the Warrant Shares will have been
issued in compliance with all applicable federal and state securities laws.
3.6 Compliance with Law and Other Instruments; None Burdensome. Neither
the Company nor Sub is (A) in violation, breach or default of any term or
provision of (x) its respective Certificate of Incorporation or Bylaws, (y) any
mortgage, indebtedness or indenture or (z) any contract, agreement, instrument
or judgment which violation, breach or default could reasonably be expected to
have a Material Adverse Effect, and (B) to the best of its knowledge in
violation of any order, writ, decree, statute, rule or regulation applicable to
the Company or Sub which violation could reasonably be expected to have a
Material Adverse Effect. The execution, delivery and performance of and
compliance with this Agreement, the Other Agreements, and the issuance by the
Company of the Securities have not resulted and will not result in any violation
of, or conflict with, or constitute, with or without the passage of time and
giving of notice, a default under the Certificate of Incorporation or Bylaws of
the Company or Sub or any agreements of Company or Sub, or result in the
creation of any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of the Company or Sub.
3.7 Governmental Approvals and Filings. No consent, approval or
authorization of, or designation, declaration or filing with, any governmental
authority on the part of the Company or Sub is required in connection with the
valid execution and delivery of this Agreement and the Other Agreements, the
offer, sale or issuance of the Securities, or the consummation of any other
transaction contemplated by this Agreement and the Other Agreements, other than
(i) qualification
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(or taking such action as may be necessary to secure an exemption from
qualification, if available) of the offer and sale of the Securities under the
Securities Act of 1933, as amended, the California Corporate Securities Law of
1968, as amended, and the other applicable state securities laws, which
qualifications or filings, if required, will be obtained or made and will be
effective within the time periods required, (ii) those which have been obtained
or permanently waived in writing or (iii) with respect to which the failure to
obtain or make could not reasonably be expected to have a Material Adverse
Effect.
3.8 Litigation. There are no actions, suits, investigations or proceedings
pending or, to the knowledge of the Company or Sub, threatened against the
Company or Sub or any of their respective properties before any court, tribunal,
government agency or instrumentality. To the knowledge of the Company or Sub,
there is no action, suit, investigation or proceeding pending against any
officer or key employee of the Company with respect to or which could effect the
Company's or Sub's business activities. Neither the Company nor Sub is a party
to or subject to the provisions of any order, writ, injunction, judgment or
decree of any court or government agency or instrumentality. There is no action,
suit, proceeding or investigation by the Company or Sub currently pending or
which the Company or Sub intends to initiate.
3.9 Intellectual Property.
(a) Each of the Company or Sub owns, or is licensed to use or
otherwise entitled to exercise rights to all patents, trademarks, trade names,
service marks, copyrights, trade secret rights and other intellectual property
rights, and any applications or registrations therefor, and all net lists,
schematics, technology, source code, know-how, computer software programs and
all other tangible and intangible information or material, that are necessary
for the business of the Company and Sub as now conducted and for projects
currently planned for production (collectively, the "Intellectual Property
Rights") and, to its knowledge, has not been and is not infringing upon or
otherwise acting adversely to the right or claimed right of any person under or
with respect to any of the foregoing.
(b) Section 3.9(b) of the Disclosure Schedule lists all of the
Company's or Sub's patents, registered copyrights, registered trademarks and
service marks, and any applications or registrations therefor, included in the
Intellectual Property Rights.
(c) Neither the Company nor Sub is, or as a result of the execution
and delivery of this Agreement or the Other Agreements, or the performance of
the Company's obligations hereunder and thereunder will be, in violation of, or
lose any rights granted pursuant to, any license or sublicense agreement.
(d) No claims with respect to the Intellectual Property Rights have
been asserted or, to the knowledge of the Company or Sub, are threatened by any
person, (i) to the effect that the manufacture, sale or use of any product as
now used or offered or proposed for use or sale by the Company or Sub infringes
any copyright, patent, trade secret, or other intellectual property right,
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(ii) against the use by the Company or Sub of any Intellectual Property Rights,
or (iii) challenging the ownership, validity or effectiveness of any of the
Intellectual Property Rights.
(e) To the knowledge of the Company or Sub, there has not been and
there is not now any unauthorized use, infringement or misappropriation of any
of the Intellectual Property Rights by any third party, including without
limitation any employee or former employee of the Company or Sub.
(f) No Intellectual Property Right is subject to any outstanding
order, judgment, decree, litigation stipulation or settlement agreement
restricting in any manner the licensing thereof by the Company or Sub. Neither
the Company nor Sub has entered into any agreement granting any third party the
right to bring infringement actions with respect to, or otherwise to enforce
rights with respect to, any Intellectual Property Right.
(g) Neither the Company nor Sub is aware that any of its respective
employees are obligated under contract (including licenses, covenants or
commitments of any nature) or other agreement, or subject to any judgment,
decree or order of any court or administrative agency, that would interfere with
their duties to the Company or Sub or that would conflict with the Company's or
Sub's businesses as proposed to be conducted. There is no action, suit,
proceeding or investigation pending or to the knowledge of the Company or Sub,
threatened involving the prior employment of any employees of the Company or
Sub, their use in connection with the businesses of the Company or Sub of any
information or techniques allegedly proprietary or proprietary to any of their
former employers or their obligations under any agreements with prior employers.
Neither the execution nor the delivery of this Agreement, nor the carrying on
of the businesses of the Company and Sub by the employees of the Company or Sub,
nor the conduct of the Company's or Sub's businesses as proposed, will to the
knowledge of the Company or Sub, conflict with or result in the breach of the
terms, conditions or provisions of, or constitute a default under, any material
contract, covenant or instrument under which any employee is obligated. Neither
the Company nor Sub believes that it is or will find it necessary for it to
utilize any inventions of any of its employees made prior to their employment by
the Company or Sub, except for inventions which have been assigned to or
licensed by the Company or Sub.
3.10 Financial Statements.
(a) Attached hereto as Exhibit F are copies of the Company's audited
consolidated balance sheet, audited consolidated statement of income and
retained earnings and audited consolidated statement of cash flows as of and for
the periods ending September 30, 1994 and 1993 and its unaudited balance sheet
as of March 31, 1995, and its unaudited statement of income and retained
earnings for the quarter ended March 31, 1995 (collectively, the "Financial
Statements"). The Financial Statements have been prepared in accordance with
generally accepted accounting principles (except for normal year end adjustments
and for the fact that the Company's unaudited balance sheet as at March 31,
1995, and its unaudited statement of income and retained earnings for the
quarter ended March 31, 1995, do not contain footnotes required by generally
accepted accounting
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principles). The Financial Statements present fairly the financial condition and
operating results of the Company and Sub as of the dates, and for the periods,
indicated therein. Except as set forth in the Financial Statements or in the
Disclosure Schedule, neither the Company nor Sub has liabilities, contingent or
otherwise, other than (i) liabilities incurred in the ordinary course of
business subsequent to March 31, 1995, which, individually or in the aggregate,
are not material to the financial condition or operating results of the Company
and Sub taken as a whole or (ii) liabilities not required to be disclosed in the
Financial Statements under generally accepted accounting principles.
(b) Since March 31, 1995, there has not been:
(i) any change in the assets, liabilities, financial condition
or operations of the Company or Sub from that reflected in the balance sheet at
March 31, 1995, included in the Financial Statements, except changes in the
ordinary course of business that have not had either individually or in the
aggregate a Material Adverse Effect;
(ii) any damage, destruction or loss, whether or not covered
by insurance, having or which could reasonably be expected to have a Material
Adverse Effect;
(iii) any waiver by the Company or Sub of a valuable right or
of a material debt owed to it;
(iv) any satisfaction or discharge of any lien, claim or
encumbrance or payment of any obligation by the Company or Sub, except in the
ordinary course of business and not having a Material Adverse Effect;
(v) any change or amendment to a material contract or
arrangement by which the Company or Sub, or any of the assets or properties of
the Company or Sub, is bound or to which the Company or Sub, or any of the
assets or properties of the Company or Sub, is subject;
(vi) any change in any compensation arrangement or agreement
with any employee of the Company or Sub earning more than $75,000 in salary and
bonus annually;
(vii) any labor organization activity affecting the Company or
Sub or any labor dispute involving the Company or Sub, or any of the Company's
or Sub's employees;
(viii) any declaration, setting aside or payment of any
dividend or other distribution with respect to the capital stock of the Company,
or any redemption, purchase or other acquisition by the Company of any of its
capital stock or options or other rights to acquire any such capital stock;
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(ix) any increase in indebtedness for borrowed money, purchase
commitments or capitalized lease obligations incurred by the Company or Sub,
except for liabilities, commitments and obligations incurred in the ordinary
course of business; or
(x) to the knowledge of the Company, any other event or
condition of any character that might have a Material Adverse Effect.
3.11 Brokers or Finders. Neither the Company nor Sub has retained or used
the services of any individual, firm or corporation other than Xxxxxx & Xxxxxxx,
Inc. in such a manner as to entitle such individual, firm or corporation to
compensation as a broker or finder as a result of the execution of this
Agreement or the Other Agreements or consummation of the transactions
contemplated hereby or thereby.
3.12 Material Contracts. The Company and Sub have delivered to Purchaser's
counsel copies of all material contracts, agreements and instruments of the
Company and Sub, which contracts are listed on Exhibit G attached hereto. Each
such contract, agreement and instrument listed on Exhibit G is valid and binding
on the Company or Sub, as applicable, and is in full force and effect.
3.13 Agreements.
(a) Except as set forth on Exhibit G, there are no agreements,
understandings or proposed transactions between the Company or Sub and any of
their respective officers, directors, affiliates or any affiliate thereof,
except for agreements explicitly contemplated by this Agreement, the
Stockholders' Agreement and the Registration Rights Agreement.
(b) Except as set forth on Exhibit G, there are no agreements,
understandings, instruments or contracts or commitments to which the Company or
Sub is a party or by which the Company or Sub is bound that involve (i)
obligations of, or payments to the Company or Sub in excess of, $50,000, or (ii)
the license of any patent, copyright, trade secret or other proprietary right to
or from the Company or Sub.
3.14 Employee Agreements. Each employee of the Company and Sub has entered
into an agreement with the Company or Sub, as applicable, regarding
confidentiality and proprietary information, and the form of such agreement has
been furnished to Purchaser's counsel.
3.15 Employees. Except as set forth in Section 3.15 of the Disclosure
Schedule, neither the Company nor Sub has any collective bargaining agreement
covering any of its employees. Except as set forth in Section 3.15 of the
Disclosure Schedule, neither the Company nor Sub has any deferred compensation,
pension, profit sharing, bonus, insurance, severance or any other similar
employee benefit plan or obligation covering any of the Company's or Sub's
employees. There are no asserted controversies or labor disputes pending, or to
the knowledge of the Company or Sub, threatened between the Company or Sub and
any of their respective employees. The Company and
-8-
Sub have complied in all material respects with all applicable state and federal
equal employment opportunity and other laws related to employment and employee
benefit plans, programs and arrangements, and all employee benefit plans,
programs and arrangements have, to the knowledge of the Company or Sub, been
administered in compliance with their terms.
3.16 Disclosure. The Company has fully provided Purchaser with all the
information Purchaser has requested in deciding whether to acquire the Shares
and the Warrant. This Agreement (including the Disclosure Schedules), the Other
Agreements, and any other certificates delivered by the Company or Sub pursuant
hereto or thereto, do not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements herein or therein
not misleading. The Company's financial projections contained in the Xxxxxx &
Xxxxxxx, Inc. Confidential Private Placement Memorandum, dated November, 1994,
for the Company's fiscal years 1995 and 1996 were prepared by the Company based
on the assumptions set forth in such projections, which assumptions were made in
good faith by the Company and are reasonable.
3.17 Registration Rights. The Company has not granted or agreed to grant
any registration rights, including piggyback rights, to any person or entity,
except as set forth in the Registration Rights Agreement.
3.18 Title to Property and Assets; Condition of Equipment.
(a) The Company and Sub have good and marketable title to, or, in
the case of leased properties and assets, valid leasehold interests in, all of
their tangible properties and assets, real, personal and mixed, used in their
business, free and clear of any liens, charges, pledges, security interests or
other encumbrances, except as reflected in the Financial Statements or except
for such imperfections of title and encumbrances, if any, which are not
substantial in character, amount or extent, and which do not materially detract
from the value, or interfere with the present use, of the property subject
thereto or affected thereby.
(b) The equipment owned or leased by the Company or Sub is, taken as
a whole, (i) adequate for the conduct of the business of the Company and Sub
consistent with their past practice, (ii) suitable for the uses to which it is
currently employed, (iii) in good operating condition as necessary for the
conduct of the Company's and Sub's business, ordinary wear and tear excepted,
(iv) regularly and properly maintained as necessary for the conduct of the
Company's and Sub's business and (v) not obsolete, dangerous or in need of
renewal or replacement, as necessary for the conduct of the Company or Sub's
business.
3.19 Tax Returns and Payments. The Company and Sub have filed all foreign,
federal, state and local tax returns and reports as required by law. These
returns and reports are true and correct in all material respects. The Company
and Sub have paid all taxes and other assessments due. The provision for taxes
of the Company and Sub as shown in the Financial Statements is adequate for
taxes due or accrued as of the date thereof. All taxes and other assessments and
levies which the Company or Sub is required to withhold or collect have been
withheld or collected and
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have been paid over to the proper governmental authorities. There are no tax
audits pending or threatened, and to the knowledge of the Company or Sub, there
is no basis for an adjustment to the amount of taxable income shown on the tax
returns of the Company or Sub.
3.20 Environmental Matters.
(a) Except as set forth in Section 3.20(a) of the Disclosure
Schedule, no substance that is a Hazardous Material (as defined below) is
present in, on or under any real property that the Company or Sub has at any
time since December 21, 1990 owned, operated, occupied or leased. As used
herein, the term "Hazardous Material" means any substance that has been
designated by any court, administrative agency, commission, regulatory authority
or other governmental authority or instrumentality, domestic or foreign (a
"Governmental Entity") to be radioactive, toxic, hazardous or otherwise a danger
to health or the environment.
(b) Since December 21, 1990 neither the Company nor Sub has
transported, stored, used, manufactured, released or exposed its employees or
any other person to any Hazardous Material (a "Hazardous Material Activity") in
violation of any applicable statute, rule, regulation, order or law, except for
such violations which could not reasonably be expected to have Material Adverse
Effect.
(c) The Company and Sub have obtained all permits, licenses and
other authorizations ("Environmental Permits") required to be obtained by any of
them under the laws of any Governmental Entity relating to pollution or
protection of the environment (collectively, "Environmental Laws"), except to
the extent failure to obtain such Environmental Permits could reasonably be
expected to have a Material Adverse Effect. All Environmental Permits are in
full force and effect, except to the extent failure to maintain such
Environmental Permits in full force and effect could reasonably be expected to
have a Material Adverse Effect. The Company and Sub (i) are in compliance with
all terms and conditions of the Environmental Permits and (ii) are in compliance
with all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in the
Environmental Laws or contained in any regulation, code, plan, order, decree,
judgment, notice or demand letter issued, entered, promulgated or approved
thereunder, except to the extent failure to so comply could reasonably be
expected to have a Material Adverse Effect. Neither the Company nor Sub has
received any notice or is aware of any past or present condition or practice of
the businesses conducted by the Company or Sub or the Company's former
subsidiaries (if any) that forms or could form the basis of any claim, action,
suit, proceeding, hearing or investigation against the Company or Sub, arising
out of the manufacture, processing, distribution, use, treatment, storage,
spill, disposal, transport, or handling, or the emission, discharge, release or
threatened release into the environment, of any Hazardous Material.
3.21 Related-Party Transactions. No employee, officer or director of the
Company or Sub and no immediate family member of any such employee, officer or
director is indebted to the Company or Sub, nor is the Company or Sub indebted
(or committed to make loans or extend or
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guarantee credit) to any of them except, in the case of employees, officers or
directors of the Company or Sub, for services rendered and expense
reimbursements in the ordinary course of business. To the knowledge of the
Company or Sub, none of such persons has any direct or indirect ownership in any
firm or corporation with which the Company or Sub is affiliated or with which
the Company or Sub has a material business relationship, or any firm or
corporation that competes with the Company or Sub, except that employees,
officers or directors of the Company or Sub and members of their immediate
families may own stock in publicly traded companies that may compete with the
Company or Sub. No officer or director of the Company or Sub or, to the
knowledge of the Company, any member of their immediate families is, directly or
indirectly, interested in any material contract with the Company or Sub.
3.22 Insurance. Each of the Company and Sub maintains adequate insurance,
by financially sound and reputable insurers on its properties of a character and
in such amounts and on such terms as customarily insured by corporations of the
same or similar size engaged in the same or a similar business against loss or
damage resulting from fire or other risks insured against by extended coverage
and of the kind customarily insured against by such corporations, and maintains
in full force and effect public liability insurance against claims for personal
injury, death or property damage occurring upon, in, about or in connection with
the use of any of its properties, and maintains such other insurance as may be
required by law or other agreements to which the Company or Sub, as the case may
be, is a party.
SECTION 4
Representations and Warranties of Purchaser
Purchaser hereby represents and warrants to the Company with respect to
the purchase of the Shares and the Warrant as follows:
4.1 Experience. Purchaser has substantial experience in evaluating and
investing in private placement transactions of securities in companies similar
to the Company; therefore, Purchaser is capable of evaluating the merits and
risks of its investment in the Company and has the capacity to protect its own
interests.
4.2 Investment. Purchaser is acquiring the Shares and the Warrant for
investment for its own account, not as a nominee or agent, and not with the view
to, or for resale in connection with, any distribution thereof. Purchaser
understands that the Shares and the Warrant to be purchased have not been, and
will not be, registered under the Securities Act of 1933, as amended (the
"Securities Act"), by reason of a specific exemption from the registration
provisions of the Securities Act, the availability of which depends upon, among
other things, the bona fide nature of the investment intent and the accuracy of
Purchaser's representations as expressed herein. Purchaser is an "accredited
investor" within the meaning of Regulation D, Rule 501(a), promulgated by the
Securities and Exchange Commission.
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4.3 Rule 144. Purchaser acknowledges that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from such registration is available. Purchaser is aware of the
provisions of Rule 144 promulgated under the Securities Act that permit limited
resale of shares purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things, the existence of a public
market for the shares, the availability of certain current public information
about the Company, the resale occurring not less than two years after a party
has purchased and paid for the security to be sold, the sale being effected
through a "broker's transaction" or in transactions directly with a "market
maker" and the number of shares being sold during any three-month period not
exceeding specified limitations and, that, Rule 144 is not now, and may not ever
be available for resales.
4.4 No Public Market. Purchaser understands that no public market now
exists for any of the securities issued by the Company and that the Company has
made no assurances that a public market will ever exist for the Company's
securities.
4.5 Access to Data. Purchaser has had an opportunity to discuss the
Company's business, management and financial affairs with the management of the
Company and the opportunity to review the Company's facilities. Purchaser has
also had an opportunity to ask questions of and seek information from the
Company, its officers and representatives. All such questions have been
answered, and all requests for information fulfilled, to Purchaser's
satisfaction. Purchaser acknowledges that it is relying solely upon the terms
and provisions of this Agreement, the Other Agreements, the certificates
delivered pursuant hereto and thereto, and the Financial Statements, in its
decision to enter into this Agreement and the Other Agreements and to consummate
the transactions contemplated hereby and thereby. The foregoing, however, does
not limit or modify the representations and warranties of Section 3 herein or
the right of the Purchaser to rely thereon.
4.6 Organization and Standing. Purchaser is a corporation duly organized,
valid and existing in good standing under the laws of the State of Delaware.
4.7 Corporate Power; Authorization. This Agreement when executed and
delivered by Purchaser, will constitute the valid and legally binding obligation
of Purchaser, enforceable in accordance with its terms, and subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies. The execution, delivery and performance of this Agreement
and the Other Agreements to which Purchaser is a party have been duly authorized
by all necessary corporate action. Purchaser has all requisite corporate power
and authority to execute this Agreement and the Other Agreements to which it is
a party and to consummate the transactions contemplated hereby and thereby.
4.8 Government Approvals and Filings. No consent, approval or
authorization of, or designation, declaration or filing with, any governmental
authority on the part of the Purchaser is required in connection with the valid
execution and delivery of this Agreement and any Other
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Agreements other than those the failure to obtain or make could not reasonably
be expected to have a material adverse effect on Purchaser.
SECTION 5
Conditions to Closing of Purchaser
Purchaser's obligation to purchase the Shares and the Warrant at the
Closing are, at the option of Purchaser, subject to the fulfillment of the
following conditions (any of which may be waived by Purchaser):
5.1 Representations and Warranties Correct. The representations and
warranties made by the Company in Section 3 hereof shall be true and correct as
of the date of this Agreement and as of the Closing Date.
5.2 Covenants. All covenants, agreements and conditions contained in this
Agreement and the Other Agreements to be performed by the Company on or prior to
the Closing Date shall have been performed or complied with, unless waived in
writing by the Purchaser.
5.3 Opinion of Company's Counsel. Purchaser shall have received from
Golenbock, Eiseman, Assor & Xxxx, counsel to the Company, an opinion addressed
to Purchaser, dated the Closing Date, in substantially the form attached hereto
as Exhibit H.
5.4 Consents. The Company shall have obtained all consents, permits and
waivers necessary or appropriate for the consummation of the transactions
contemplated by this Agreement and the Other Agreements which need to be
obtained prior to the Closing.
5.5 Blue Sky. The Company shall have obtained all necessary Blue Sky law
permits and qualifications, or have the availability of exemptions therefrom,
required by any state for the offer and sale of the Securities.
5.6 Restated Certificate. The Restated Certificate in the form attached
hereto as Exhibit A shall have been filed with the Delaware Secretary of State.
5.7 Legal Matters. All material matters of a legal nature which pertain to
this Agreement and the transactions contemplated hereby, shall have been
reasonably approved by Purchaser's counsel.
5.8 Registration Rights Agreement. The Registration Rights Agreement in
the form attached hereto as Exhibit E shall have been executed.
5.9 Stockholders' Agreement. The Stockholders' Agreement in the form
attached hereto as Exhibit D shall have been executed.
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5.10 Warrant. The Warrant in the form attached hereto as Exhibit B shall
have been executed.
5.11 Board of Directors. The Company's Bylaws shall have been amended in
the form attached hereto as Exhibit 1, and will be consistent with an initial
Board of seven directors, two of whom Purchaser shall have the right to elect.
As of the Closing, the Board of Directors of the Company will consist of
Xxxxxxxxx Xxxxxxx, Seiya Miyanishi, Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxx Xxxxxx,
Xxxxxxx Xxxxxxx and Xxxxxx Xxxxx.
5.12. Participation Rights. The Company shall have received waivers from
all of its existing security holders entitled to Participation Rights under
Section 10 of the Stockholders' Agreement, dated as of December 21, 1990, as
amended by and among the Company and the stockholders of the Company.
5.13 Certificates.
(a) Each of the Company and Sub shall have delivered to the
Purchaser a certificate of its President dated as of the Closing Date,
certifying the fulfillment of the conditions specified in Sections 5.1, 5.2, 5.4
and 5.12 of this Agreement.
(b) Each of the Company and Sub shall have delivered a certificate
of its secretary, certifying as to (i) the incumbency of its officers executing
this Agreement and the Other Agreements and all other documents executed and
delivered in connection herewith and therewith, (ii) a copy of its By-laws, as
in effect on and as of the Closing Date, and (iii) the resolutions adopted by
its Board of Directors authorizing and approving the execution, delivery and
performance of this Agreement and the Other Agreements, all matters in
connection with this Agreement and the Other Agreements, and the transactions
contemplated hereby and thereby.
SECTION 6
Conditions to Closing of Company
The Company's obligation to sell and issue the Shares and the Warrant at
the Closing is subject to the fulfillment as of the Closing Date of the
following conditions (any of which may be waived by the Company):
6.1 Representations. The representations made by Purchaser in Section 4
hereof shall be true and correct as of the Closing Date.
6.2 Registration Rights Agreement. The Registration Rights Agreement in
the form attached hereto as Exhibit E shall have been executed and delivered by
all parties thereto.
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6.3 Stockholders' Agreement. The Stockholders' Agreement in the form
attached hereto as Exhibit D shall have been executed and delivered by all
parties thereto.
6.4 Consents. The Company shall have obtained all consents, permits and
waivers necessary or appropriate for the consummation of the transactions
contemplated by this Agreement and the Other Agreements which need to be
obtained prior to the Closing.
6.5 Blue Sky. The Company shall have obtained all necessary Blue Sky law
permits and qualifications, or have the availability of exemptions therefrom,
required by any state for the offer and sale of the Securities.
6.6 Restated Certificate. The Restated Certificate in the form attached
hereto as Exhibit A shall have been filed with the Delaware Secretary of State.
6.7 Warrant. The Warrant in the form attached hereto as Exhibit B shall
have been executed.
6.8 Board of Directors. The Company's Bylaws shall have been amended in
the form attached hereto as Exhibit I, and will be consistent with for an
initial Board of seven directors, two of whom Purchaser shall have the right to
elect. As of the Closing, the Board of Directors of the Company will consist of
Xxxxxxxxx Xxxxxxx, Seiya Miyanishi, Xxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxx Xxxxxx,
Xxxxxxx Xxxxxxx and Xxxxxx Xxxxx.
6.9. Participation Rights. The Company shall have received waivers from
all of its existing security holders entitled to Participation Rights under
Section 10 of the Stockholders' Agreement, dated as of December 21, 1990, as
amended by and among the Company and the stockholders of the Company.
SECTION 7
Covenants of the Company
The Company hereby covenants and agrees, except as provided in Section
7.2(c), so long as at least 10,000 shares of Series B Preferred (subject to
adjustment for stock splits, stock dividends and the like) are outstanding, as
follows:
7.1 Basic Financial Information.
(a) As soon as practicable after the end of each fiscal year of the
Company, and in any event within 120 days thereafter, the Company will furnish
to Purchaser a consolidated balance sheet of the Company and Sub as at the end
of such fiscal year, and consolidated statements of income, consolidated
statement of cash flows and consolidated statements of changes in shareholders'
equity of the Company and Sub for such year, prepared in accordance with
generally accepted accounting principles consistently applied and setting forth
in each case in comparative
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form the figures for the previous fiscal year, all in reasonable detail and
audited by independent public accountants of national standing selected by the
Company, and a capitalization table in reasonable detail for such fiscal year.
7.2 Additional Information.
(a) The Company will permit representatives of Purchaser to visit,
at such Purchaser's expense, and inspect any of the properties of the Company
and Sub, including their books of account, and to discuss the affairs, finances
and accounts of the Company and Sub with the officers of the Company and Sub and
the Company's independent public accountants, all at such reasonable times and,
upon reasonable notice, as often as Purchaser may reasonably request. In
addition, the Company will deliver the reports described below in this Section
7.2 to Purchaser (provided, that, if any report of a similar nature as those
described below (which includes at least all the information required in clauses
(i) and (ii) below) is from time to time required to be delivered by the Company
to an institutional lender, such similar report may be substituted therefore):
(i) as soon as practicable after the end of each month and in
any event within 30 days thereafter, a consolidated balance sheet of the Company
and Sub as at the end of such month, and consolidated statements of income and
of sources and applications of funds of the Company and Sub for such month and
for the current fiscal year of the Company to date, prepared in accordance with
generally accepted accounting principles (other than for accompanying footnotes)
consistently applied, subject to changes resulting from year-end audit
adjustments, in reasonable detail and certified by the principal financial or
accounting officer of the Company; and
(ii) as soon as available (but in any event within 30 days
after the commencement of its fiscal year) a summary of the financial plan of
the Company for the fiscal year as contained in its operating plan approved by
the Company's Board of Directors, and any material changes in such financial
plan shall be delivered as promptly as practicable after such changes have been
approved by the Board of Directors.
(b) The provisions of this Section 7.2 shall not be in limitation of
any rights that Purchaser may have with respect to the books and records of the
Company and Sub, or to inspect their properties or discuss their affairs,
finances and accounts, under the laws of the jurisdictions in which they are
incorporated.
(c) The information rights of Purchaser set forth in this Section
7.2 shall terminate in all respects on the earlier of (i) the date of the
closing of an initial firm commitment underwritten public offering pursuant to
an effective registration statement under the Securities Act, covering the offer
and sale of the Company's Common Stock, and (ii) the date on which the Company
is first subject to the reporting requirements of Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
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(d) Notwithstanding anything to the contrary contained in this
Agreement or any Other Agreements, Purchaser will not request and agrees to
cause its directors, officers, shareholders, employees, agents, affiliates,
attorneys, accountants, advisers and representatives (collectively "Purchaser
Affiliates") not to request that the Company or Sub disclose, nor will the
Company or Sub or any of their respective directors, officers, shareholders,
employees, agents, affiliates, attorneys, accountants, advisers or
representatives be obligated to disclose any of the following non-public
information with respect to any competitor of Purchaser with whom the Company or
Sub conducts or contemplates conducting business: information with respect to
the production and sale of products currently marketed or planned for marketing,
technology, know-how, methods of operation, processes, projects, proprietary and
confidential matters and any other material non-public information related to
the business of such competitor. The provisions set forth in this Section 7.2(d)
shall in no way restrict Purchaser or any Purchaser Affiliates from requesting
or receiving customary information in its capacity as a customer of the Company.
7.3 Employee Agreements. Each person now or hereafter employed by the
Company or Sub will enter into an agreement with the Company or Sub, as
applicable, regarding confidentiality and proprietary information.
7.4 Use of Proceeds. Promptly after the Closing Date, and in any event
within 30 days of the Closing Date, the Company shall use the proceeds from the
sale of the Shares to pay off all the indebtedness of the Company and Sub listed
on Part I of Exhibit J hereto. Any remaining proceeds from the sale of the
Shares shall be used in accordance with Part II of Exhibit J hereto.
7.5 Prompt Payment of Taxes, etc. The Company will pay and discharge, or
cause to be paid and discharged, when due and payable, all lawful taxes,
assessments and governmental charges or levies imposed upon the income, profits,
property or business of the Company or any subsidiary; provided, however, that
any such tax, assessment, charge or levy need not be paid if the validity
thereof shall currently be contested in good faith by appropriate proceedings
and if the Company shall have set aside on its books adequate reserves with
respect thereto as required by generally accepted accounting principals
consistently applied; provided further, that the Company will pay all such
taxes, assessments, charges or levies forthwith upon the commencement of
proceedings to foreclose any lien which may have attached as security therefor.
7.6 Maintenance of Properties. Each of the Company and Sub will keep its
properties in good repair, working order and condition, reasonable wear and tear
excepted, and from time to time will make all needed and proper repairs,
renewals, and replacements.
7.7 Insurance. Each of the Company and Sub will keep its material assets
(individually or in the aggregate) which are of an insurable character insured
by financially sound and reputable insurers against loss or damage by fire,
explosion and other risks, and in such amounts as, customarily insured against
by corporations of similar size engaged in the same or similar business as the
Company and Sub. Each of the Company and Sub will maintain with financially
sound and
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reputable insurers, insurance against other hazards and risks and liability to
persons and property to the extent and in the manner customary for companies in
similar businesses similarly situated.
7.8 Accounts and Records. Each of the Company and Sub will keep true
records and books of account in which full, true and correct entries will be
made of all dealings or transactions in relation to its business and affairs in
accordance with generally accepted accounting principles applied on a consistent
basis.
7.9 Maintenance of Corporate Existence, etc. Each of the Company and Sub
shall maintain in full force and effect its corporate existence, rights and
franchises and use its best efforts to maintain in full force and effect all
licenses and other rights to use patents, processes, licenses, trademarks, trade
names or copyrights owned or possessed by it or any subsidiary and deemed by the
Company or Sub to be material to the conduct of their business.
7.10 Availability of Common Stock for Conversion. The Company will from
time to time, in accordance with the laws of the State of Delaware, increase the
authorized amount of Common Stock if at any time the number of shares of Common
Stock remaining unissued and available for issuance shall be insufficient to
permit conversion of all the then outstanding Shares and Warrant Shares.
7.11 Hirings. As soon as is practical after the Closing, the Company shall
use its best efforts to hire, after consultation with Purchaser, a highly
qualified Chief Financial Officer and a highly qualified Vice President of
Operations. In the event the Company determines to issue or agrees to grant or
issue upon the hiring of such officers stock options or any other equity
securities to such officers, it may only do so with the consent of Purchaser's
representatives to the Board of Directors.
7.12 Adoption of Stock Option Plans and Issuance of Employee Stock
Options. The Company shall not (i) adopt any stock option plan, stock purchase
plan or any other incentive plan for officers, directors, employees and
consultants of the Company or any of its subsidiaries (and shall not increase
the shares reserved for issuance under any stock plan existing on the date of
this Agreement or any other stock plan) or (ii) issue any options or warrants to
officers, directors, employees or consultants of the Company or any of its
subsidiaries outside of any such plan, in each case, without the written consent
of Purchaser.
7.13 Incurrence of Indebtedness. The Company will not and will not permit
any subsidiary of the Company to incur, guarantee, assume, create or in any way
become obligated with respect to any indebtedness for borrowed money except for
(x) the refinancing of any indebtedness existing after the proceeds from the
sale of the Shares are used by the Company to pay off the indebtedness of the
Company and Sub as contemplated by Section 7.4 (the "Remaining Indebtedness")
with provisions for interest not to exceed 10% on such Remaining Indebtedness
and (y) up to $3.0 million of additional indebtedness at any one time
outstanding for working capital purposes.
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SECTION 8
Miscellaneous
8.1 Transfer of Certain Rights.
(a) Subject to the terms and provisions of the Stockholders'
Agreement and the Registration Rights Agreement, the rights granted to the
Purchaser under this Agreement and the Warrant may only be transferred to:
(i) any majority-owned subsidiary or controlled affiliate of
the Purchaser (but only if and for so long as such subsidiary or affiliate
remains a majority owned subsidiary or controlled affiliate of the Purchaser
(except as otherwise provided in Section 8.1(a)(ii) below)), or
(ii) any transferee that acquires at least 14,000 shares of
Series B Preferred (subject to adjustment for stock splits, stock dividends and
the like), including shares of Series B Preferred issuable upon exercise of the
Warrant; provided, however, that the Company is given written notice by the
transferee at the time of such transfer stating the name and address of the
transferee and identifying the securities with respect to which such rights are
being assigned; provided, further, as a condition precedent to any such
transfer, the transferee agrees in writing to be bound by and subject to all
terms and conditions of this Agreement. The rights granted to the Purchaser set
forth in Sections 7.4, 7.11, 7.12 and 7.13 may not be transferred to a
transferee pursuant to this Section 8.1(a)(ii).
(b) A transferee to whom rights are transferred pursuant to this
Section may not again transfer such rights to any other person or entity, other
than as provided in paragraph (a) above.
(c) The restrictions contained in this Section 8.1 shall terminate
immediately prior to the closing of an initial firm commitment underwritten
public offering pursuant to an effective registration statement under the
Securities Act covering the offer and sale of the Company's Common Stock for the
account of the Company to the public at a price per share (determined without
regard to underwriter commissions and expenses) of not less than Five Hundred
Dollars $500.00 (as adjusted for stock splits, stock dividends,
recapitalizations and the like) and aggregate gross proceeds to the Company of
not less than Ten Million Dollars ($10,000,000), before deduction of
underwriting discounts and commissions and registration expenses.
8.2 Governing Law. This Agreement shall be governed and construed in
accordance with laws of the State of Delaware, without giving effect to the
conflicts of laws provisions thereof. The parties hereto agree to submit to the
non-exclusive jurisdiction of the federal and state courts of the State of
California with respect to the breach or interpretation of this Agreement or the
enforcement of any and all rights, duties, liabilities, obligations, powers and
other relations between the parties arising under this Agreement.
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8.3 Survival of Representations and Warranties. Except with respect to
fraud or willful or intentional efforts to deceive or mislead, all
representations and warranties made in Section 3 and Section 4 shall survive
until the later of January 30, 1997 or thirty (30) days after the date of
delivery to Purchaser of the Company's audited financial statements for the
fiscal year ending September 30, 1996, provided, that the representations and
warranties made herein by the Company and Sub with respect to tax returns and
payments shall survive the Closing of the transactions contemplated hereby for
three (3) years from the date of this Agreement.
8.4 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
permitted successors and assigns, heirs, executors and administrators of the
parties hereto, provided, however, that the rights of Purchaser to purchase the
Shares and the Warrant shall not be assignable without the prior written consent
of the Company.
8.5 Entire Agreement; Amendment. This Agreement and the other documents
delivered pursuant hereto at the Closing constitute the full and entire
understanding and agreement among the parties with regard to the subjects hereof
and thereof, and no party shall be liable to any other party in any manner for
any warranties, representations or covenants except as specifically set forth
herein or therein. Except as expressly provided herein, neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
8.6 Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, or other cause delivered by hand or by messenger, or sent
by facsimile and confirmed by mail addressed as follows:
If to Purchaser Seagate Technology, Inc.
000 Xxxx Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Company CVC Holdings, Inc.
or Sub 000 Xxx Xxxx
Post Office Box 1886
Rochester, New York 14603
Attn: Xxxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy to Golenbock, Elseman, Assor & Xxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: X. X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Each such notice or other communication shall for all purposes of
this Agreement be treated as effective or having been given when delivered if
delivered personally or sent by confirmed facsimile, or, if sent by mail, at the
earlier of its receipt or 72 hours after the same has been deposited in a
regularly maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid, or if sent by reputable overnight courier,
two days after delivery to such courier.
8.7 Delays or Omissions. Except as expressly provided herein, no delay or
omission to exercise any right, power or remedy accruing to any holder of any
Shares or the Warrant, upon any breach or default of the Company or Sub under
this Agreement, shall impair any such right, power or remedy of such holder nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
holder of any Securities of any breach or default under this Agreement, or any
waiver on the part of Purchaser of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to Purchaser, shall be cumulative and
not alternative.
8.8 California Qualification. THE SALE OF THE SECURITIES WHICH ARE THE
SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH
QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES IS EXEMPT FROM
QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON
SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
8.9 Fees of Purchaser's Counsel. At the Closing, the Company will pay the
reasonable fees (not to exceed $20,000) and reasonable expenses of Wilson,
Sonsini, Xxxxxxxx & Xxxxxx, P.C., counsel to Purchaser, related to this
Agreement, the Other Agreements and the transactions contemplated hereby and
thereby.
-21-
8.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
8.11 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
8.12 Titles and Subtitles. The titles and subtitles used in this Agreement
are used for convenience only and are not to be considered in construing or
interpreting this Agreement.
8.13 Brokers or Finders. The Company and Sub shall, jointly and severally,
hold harmless and indemnify Purchaser from and against any liability for
brokerage or finders' fees or agents' commissions or similar charges in
connection with this Agreement incurred, directly or indirectly, as a result of
action taken by the Company or Sub, and Purchaser shall hold harmless and
indemnify the Company and Sub from and against any liability for brokerage or
finders' fees or agents' commissions or similar charges in connection with this
Agreement incurred, directly or indirectly, as a result of action taken by
Purchaser.
-22-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
CVC HOLDINGS, INC.
a Delaware corporation
By: /s/ [ILLEGIBLE]
-------------------------------------
"SUB"
CVC PRODUCTS, INC.
a Delaware corporation
By: /s/ [ILLEGIBLE]
-------------------------------------
"PURCHASER"
SEAGATE TECHNOLOGY, INC.
a Delaware corporation
By:
-------------------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
CVC HOLDINGS, INC.
a Delaware corporation
By:
-------------------------------------
"SUB"
CVC PRODUCTS, INC.
a Delaware corporation
By:
-------------------------------------
"PURCHASER"
SEAGATE TECHNOLOGY, INC.
a Delaware corporation
By:
-------------------------------------
EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
(See Tab 4)
EXHIBIT B
SERIES B PREFERRED STOCK PURCHASE WARRANT
(See Tab 6)
EXHIBIT C
DISCLOSURE SCHEDULE TO REPRESENTATIONS AND WARRANTIES
DISCLOSURE SCHEDULES
For purposes of these Disclosure Schedules, each disclosure applies
only to the particular section referenced unless a disclosure is specifically
cross referenced in a separate section or otherwise clearly applies to another
section.
Capitalized terms used in these Disclosure Schedules and not
otherwise defined herein shall have the meanings ascribed to them in the
Securities Purchase Agreement to which these Disclosure Schedules are attached.
Schedule 3.1
Organization and Standing
Sub leases property in Towson, Maryland but is not qualified to do
business in the State of Maryland, however, such failure to be so qualified will
not result in a Material Adverse Effect.
Sub has an office in Garland, Texas but is not qualified to do
business in the State of Texas, however, such failure to be so qualified will
not result in a Material Adverse Effect.
2
Schedule 3.4
Capitalization
Option Agreement, dated as of December 21, 1990, between Company and
Xxxxxxxxx Xxxxxxx.
Option Agreement, dated as of December 21, 1990, between Company and
Xxxxxxxxxxx Xxxx.
Option Agreement, dated as of December 21, 1990, between Company and
Xxxx Xxxxxxxxxx, as assigned.
Option Agreement, dated as of January 24, 1992, between Company and
Xxxxx Little (together with Employment Agreement, dated November 19, 1990,
between Xxxxx Little and Sub, contemplating the grant of additional options).
Option Agreement, dated as of July 12, 1993, between Company and
Xxxxxx Xxxxxxx.
Option Agreement, dated as of October 15, 1993, between Company and
Xxxxxx Xxxxxxx.
Option Agreement, dated as of October 15, 1993, between Company and
Xxxxx Xxxxxxx.
Option Agreement, dated as of February 1, 1994, between Company and
Xxxxxxx Xxxxxxx.
Option Agreement, dated as of April 18, 1994, between Company and
Yong Xxx Xxx.
Option Agreement, dated as of August 15, 1994, between Company and
Xxxxxx Xxxxxxxx.
Option Agreement, dated as of October 17, 1994, between Company and
Xxxx Xxxx.
Option Agreement, dated as of December 19, 1994, between Company and
Xxxxx Xxxxx.
The holders of the 8% Non-cumulative Convertible Preferred Stock are
entitled to conversion rights as provided in Company's Certificate of
Incorporation, as amended.
Each signatory stockholder is entitled to participation rights
pursuant to Section 10 of the Stockholders' Agreement, dated as of December 21,
1990, as amended, among Company and the signatory stockholders. The Amended and
Restated Stockholders' Agreement dated as of the Closing Date among Company and
the
3
signatory stockholders will not have such participation rights. Company has
received a waiver from each stockholder entitled to participation rights in
connection with the offering of the Shares and the sale of the Warrant. No
stockholder is entitled to participation rights with respect to any prior
transaction.
Voting agreements exist among the holders of Company's capital stock
pursuant to Section 2 of the Stockholders' Agreement, dated as of December 21,
1990, as amended, among Company and the signatory stockholders. The Amended and
Restated Stockholders' Agreement dated as of the Closing Date among Company and
the signatory stockholders will amend such voting agreements.
Immediately prior to the Closing, Company's outstanding securities
will be held as set forth in Exhibit 1 hereto.
4
Schedule 3.6
Compliance with Law and Other Instruments; None Burdensome
Currently and from time to time, Sub has been in default under
certain covenants and obligations under and in connection with the Amended and
Restated Revolving Loan and Security Agreement, dated as of January 29, 1992, as
amended December 16, 1992, February 11, 1993 and August 12, 1994 (the "Loan and
Security Agreement"), with The Chase Manhattan Bank, N.A., as successor by
merger to Chase Lincoln First Bank, N.A. (the "Lender") , and related agreements
and documents, and Sub may from time to time be in default under certain
obligations to HYGE Partners (the former owners of Sub's capital stock),
however, such defaults, individually or in the aggregate, will not result in a
material additional liability to Company or Sub or adversely affect the
consummation of the transactions contemplated hereby.
5
Schedule 3.8
Litigation
Company has provided to Purchaser copies of correspondence from its
customer Read Rite Corporation ("Read Rite") in connection with Read Rite's
assertion that an officer of Company disclosed proprietary information of Read
Rite. Neither Company nor Sub has received any further communication from Read
Rite with respect to this matter since February 17, 1995. There can be no
assurance that Read Rite will not, at a later date, choose to assert a claim.
Sub is subject to an Order on Consent issued by the New York State
Department of Environmental Conservation.
In June 1993, Xxxxx X. Xxxx commenced an action against Sub in the
Untied States District Court, Western District of New York, based, inter alia,
on allegations that had formed the basis of his November 1991 complaint with the
New York State Division of Human Rights. The action alleged age discrimination,
discrimination based on disability and breach of Sub's contractual obligations
under its collective bargaining agreement, all in connection with Sub's layoff
of Xx. Xxxx in June 1991 and its denial of his applications for other employment
at Sub. This action was settled by the parties in July 1994 by Sub's payment to
Xx. Xxxx of $18,000 and Xx. Xxxx'x release of Sub from all claims and actions.
This item is on this Disclosure Schedule for informational purposes only and the
Company and Sub do not anticipate any additional liability with respect to this
matter.
See Schedule 3.9(d).
6
Schedule 3.9
Intellectual Property
b. "Connexion" - a registered trademark.
See Exhibits 2 and 3 attached hereto.
d. Luxtron Corporation ("Luxtron") has requested that Sub review the
applicability of various of Luxtron's patents to Sub's wafer monitoring
techniques to ensure that Sub does not infringe Luxtron's patent rights and, if
applicable, that Sub discuss with Luxtron the potential licensing of Luxtron's
patented technology. Neither Company nor Sub has received any further
communication from Luxtron with respect to this matter since November 4, 1994.
There can be no assurance that Luxtron will not, at a later date, choose to
assert an infringement claim.
Applied Materials has "reminded" an officer of Company, formerly
employed by Texas Instruments, of applicable non-disclosure obligations
regarding confidential information concerning wafer temperature measurement
received by such officer from an employee of Applied Material while such officer
was employed at Texas Instruments. Company believes that such officer is not
using such information improperly. Neither Company nor Sub has received any
further communication from Applied Materials with respect to this matter since
January 26, 1994. There can be no assurance that Applied Materials will not, at
a later date, choose to assert a claim with respect to the foregoing.
Company has provided to Purchaser copies of correspondence from its
customer Read Rite Corporation ("Read Rite") in connection with Read Rite's
assertion that an officer of Company disclosed proprietary information of Read
Rite. Neither Company nor Sub has received any further communication from Read
Rite with respect to this matter since February 17, 1995. There can be no
assurance that Read Rite will not, at a later date, choose to assert a claim.
e. It is Sub's opinion that Hitachi has copied Sub's 624 design
reportedly given to Hitachi by a customer of Sub.
g. Applied Materials has "reminded" an officer of Company, formerly
employed by Texas Instruments, of applicable non-disclosure obligations
regarding confidential information concerning wafer temperature measurement
received by such officer from an employee of Applied Material while such officer
was employed at Texas Instruments. Company believes that such officer is not
using such information improperly. Neither Company nor Sub has received any
further communication from Applied Materials with respect to this matter since
January 26, 1994. There can be no
7
assurance that Applied Materials will not, at a later date, choose to assert a
claim with respect to the foregoing.
AG Associates has questioned the propriety and intent of Sub's
employment of former employees of AG Associates and/or its subsidiary, Rapro
Technology. Neither Company nor Sub has received any further communication from
AG Associates with respect to this matter since January 14, 1994.
Matters with respect to Xxxx Xxxxxxx as previously disclosed to
Purchaser.
It may be necessary to utilize inventions of Xx. Xxxxxx Xxxxxxxx,
Xx. Xxxxx Xxxxx, Xx. Xxxx Xxx Xxx, Xx. Xxxxxxx Xxxxxxx, Xx. Xxxxxx Xxxxxxx, Xx.
Xxxx Xxxxxxxx and Xx. Xxxx Xxxx, made prior to each such employee's employment
with Company or Sub, which inventions Company and Sub believe are within
Company's and/or Sub's rights to use. Company and/or Sub has received such
permission with respect to the grant of use of the foregoing inventions as they
deem necessary.
8
Schedule 3.10
Financial Statements
a. During 1993, Company changed its method of accounting for certain
contracts from the completed contract method to the percentage of completion
method. Company, however, is contemplating returning to the completed contract
method.
b. (i) See Exhibit 4 attached hereto.
(iii) Company has not exercised any of its rights of refusal
pursuant to Section 4 of the Stockholders' Agreement, dated as of December 21,
1990, as amended, among Company and the signatory stockholders, with respect to
recent sales of stock and options to purchase common stock by Xxxx Xxxxxxxxxx
and Xxxxx and Xxxxxx Xxxxxx.
(iv) See Exhibit 4 attached hereto.
(vi) Xxxxxxxxxxx Xxxx'x will receive a standard relocation
adjustment (20% more than his Rochester salary) in connection with his
relocation to the California office as of May 16, 1995.
(ix) See Exhibit 4 attached hereto.
9
Schedule 3.12
Material Contracts
Currently, and from time to time, Sub has been in default under
certain covenants in its Amended and Restated Revolving Loan and Security
Agreement, dated as of January 29, 1992, as amended December 16, 1992, February
11, 1993 and August 12, 1994, between Sub and the Lender, and Sub may from time
to time be in default under its agreements with HYGE Partners, however, such
defaults, individually or in the aggregate, will not result in a material
additional liability to Company or Sub or adversely affect the consummation of
the transactions contemplated hereby. The amounts outstanding under the
foregoing agreements will be paid off with the proceeds of the transactions
contemplated by this Securities Purchase Agreement within thirty days of the
Closing Date.
10
Schedule 3.13
Agreements
b. A former affiliate of Company and Sub, CVC Scientific Products
Limited, has certain rights to use the name "CVC Scientific Products" and "CVC"
under stated terms and conditions. Company understands that CVC Scientific
Products Limited has ceased doing business.
Varian Associates, Inc. has a limited non-exclusive license to use
the names "CVC Products, Inc." and "CVC" in conjunction with the terms "-type"
or "-style" as described in the Asset Purchase and Sale Agreement, dated as of
September 30, 1993, among Company, Sub and Varian Associates, Inc.
11
Schedule 3.15
Employees
Collective Bargaining Agreement:
Agreement between Sub and Local 342 of the International Union of
Electronic, Electrical, Salaried, Machine & Furniture Workers, AFL-CIO, dated
November 7, 1991, as extended.
The following information is with respect to salaried employees only:
Deferred Compensation:
Agreement, dated as of December 21, 1990, with respect to Deferred
Compensation Plan for Officers of Sub among Sub, Garfield, Morse, Xxxxxxxx and
Xxxxxx.
Pension:
Defined Benefit Plan for the period from October 1, 1973 through
September 30, 1991. The plan was frozen on September 30, 1991.
Group Annuity Contracts provided by Mass Mutual Life Insurance
Company, 0000 Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000. Empire
Professional Services, 00 Xxxxx'x Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000 serves as
actuary thereunder.
Profit Sharing:
Sub offers a qualified 401(k) pension plan to all permanent
employees (Contract No. 4-01135 instituted October 1, 1991). The plan trustee
and investment manager is the Principal Investment/Financial Group - Pen. Adm.
DC4, 000 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx 00000.
Health Insurance:
Insurance coverage is provided to Rochester, New York employees by
Blue Cross/Blue Shield of Rochester, Preferred Care or Genesee Valley Group
Health Association Insurance Program and Blue Choice of Rochester. Sub shares
the cost of health insurance by paying 50% of the health insurance premiums. The
employee is responsible for the remaining 50%. Each of the foregoing providers
also provides a prescription drug reimbursement program.
Insurance coverage is provided to Fremont, California employees by
Blue Cross/Blue Shield and Xxxx Xxxxx Life Insurance
12
Company. Sub shares the cost of health insurance by paying 50% of the health
insurance premiums. The employee is responsible for the remaining 50%. Blue
Cross/Blue Shield provides a prescription drug reimbursement program.
Sub pays 65% of medical insurance premiums for retirees who were
hourly employees. The retired employee is responsible for the remaining 35% of
such premium.
Sub pays 50% of medical insurance premiums for retirees who were
salaried employees. The retired employee is responsible for the remaining 50% of
such premium.
Dental Insurance:
Dental insurance coverage is an optional benefit which is provided
to Rochester, New York employees by Travelers Insurance Company and the Business
Council of New York State. Sub contributes 100% of the premium for individual
coverage and $18.60 per pay period for family dental coverage, the remainder of
which premium is paid by the employee.
Short-term Disability:
Short-term disability coverage is provided by CNA Insurance Company.
In addition, Rochester, New York employees are eligible for disability coverage
under New York State disability laws, and Fremont, California employees are
eligible for disability coverage under California disability laws.
Long-term Disability:
Long-term disability coverage for both Rochester, New York and
Fremont, California employees is provided by Travelers Insurance Company through
the Business Council of New York State. Sub pays all premiums for such coverage.
Employees have the option of purchasing additional long-term disability
coverage.
Life Insurance:
Life insurance coverage for both Rochester, New York and Fremont,
California employees is provided by Travelers Insurance Company through the
Business Council of New York State. The plan provides term insurance and
accidental death and dismemberment in an amount equal to one years' salary at no
cost to the employee.
Retirees who were hourly employees receive reduced life insurance in
the amount of $3,500
13
Bonus Plan:
Management Bonus Plan for fiscal year 1994.
Bonus Plan for Non-Management Employees for fiscal year 1994.
No bonus plans have been developed or are in effect for fiscal year
1995.
Severance:
Severance payments are up to management discretion.
Flexible Benefit Program:
If elected, medical and dental premiums paid by the employee are
deducted from pre-tax dollars.
Other Employee Benefits:
Payroll savings and direct deposit plans - Employees may elect to
have a specific amount direct deposited in a savings and/or checking account
maintained with Rochester Community Savings Bank or Summit Federal Credit Union.
Credit union membership - Sub is a member of Summit Federal Credit
Union and employees may enroll for membership therein.
Savings bonds - Employees may elect payroll deductions for the
purchase of United States savings bonds.
Tuition reimbursement programs - - Employees are eligible for
tuition reimbursement for job related courses as approved by the Educational
Assistance Team based on department head recommendations.
Holidays - - Employees are paid for 11 paid holidays annually.
Vacation - - Employees are entitled to progressive vacation
benefits.
Absence allowance - - Employees are entitled to a paid absence
allowance for illness or personal business.
Safety shoes - - Company contributes $100 every two years to all
employees towards one pair of safety shoes.
Safety glasses - - All employees are eligible for one pair of safety
glasses every two years with a prescription.
14
Employment Agreements:
Employment Agreement, dated as of December 21, 1990, between Company
and Xxxxxxxxx Xxxxxxx.
Employment Agreement, dated as of October 25, 1993, between Sub and
Xxxxxx Xxxxxxx.
Employment Agreement, dated as of October 25, 1993, between Sub and
Xxxxx Xxxxxxx.
Labor Disputes:
Sub has been involved in labor disputes with union employees in the
past, including a strike by Local 342 of the International Union of Electronic,
Electrical, Salaried, Machine and Furniture Workers AFL-CIO in October through
November 1991. The original term of the agreement between Local 342 and Sub
entered into after the strike ended on October 30, 1994. The agreement was
extended for a period of twelve months, through October 30, 1995, by mutual
consent. This item is on this Disclosure Schedule for informational purposes
only.
15
Schedule 3.18
Title to Property and Assets; Condition of Equipment
a. Liens in favor of the Lender pursuant to the Amended and Restated
Revolving Loan and Security Agreement, dated as of January 29, 1992, as amended
December 16, 1992, February 11, 1993 and August 12, 1994, between Sub and the
Lender.
Liens in favor of the Monroe Industrial Development Agency and
Manufacturers Hanover Trust (now known as Chemical Bank) in connection with the
000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx property financing documents listed below
(including a financing statement filed with respect to a North American 7-1/2
ton crane with Detroit 7-1/2 ton hoist including cross rails located at 000 Xxx
Xxxx, Xxxxxxxxx, Xxx Xxxx).
Title to premises known as 000 Xxx Xxxx, Xxxx xx Xxxxxxxxx, Xxx
Xxxx, is vested in County of Monroe Industrial Development Agency, by deed
recorded September 17, 1974 in the Monroe County Clerk's Office in Liber 4723 of
Deeds, page 90, and is subject to terms, covenants, conditions and restrictions
contained in deed recorded in Liber 4299 of Deeds, page 177, and Declaration of
Restrictions contained in Liber 4469 of Deeds, page 13.
Memorandum of Lease executed by County of Monroe Industrial
Development Agency to Sub, dated September 16, 1974, and filed for record in the
Monroe County Clerk's Office on September 17, 1974, and recorded in Liber 4723
of Deeds, page 75; as assigned by Assignment of Lease from County of Monroe
Industrial Development Agency to Manufacturers Hanover Trust Company/Genesee
Region, dated August 1, 1974 and filed for record in the Monroe County Clerk's
Office on September 17, 1974 and recorded in Liber 4723 of Deeds, page 98:
Mortgage by County of Monroe Industrial Development Agency to
Manufacturers Hanover Trust Company/Genesee Region, which mortgage is given to
secure the sum of $2,400,000.00 and is dated August 1, 1974 and filed for record
in the Monroe County Clerk's Office on September 17, 1974 and recorded in Liber
3890 of Mortgages, page 65.
Easement granted by County of Monroe Industrial Development Agency
to Rochester Gas and Electric Corporation, dated January 14, 1975 and recorded
January 15, 1975 in Monroe County Clerk's Office in Liber 4782 of Deeds, page
36.
Terms, Covenants, Conditions and Restrictions contained in Deed
recorded in Liber 4299 of Deeds, page 177, and in Deed from UDC to County of
Monroe Industrial Development Agency recorded
16
September 17, 1974 in Liber 4723 of Deeds, page 90 and Declaration of
Restrictions contained in Liber 4469 of Deeds, page 13.
Collateral Security Second Mortgage and Security Agreement made by
County of Monroe Industrial Development Agency to the Lender, which mortgage is
given to secure the sum of $500,000 and is dated September 1, 1988.
Security Agreement, dated September 1, 1988, as amended, by Sub in
favor of the Lender and UCC financing statements filed pursuant thereto.
Mortgage Modification and Extension Agreement, dated as of December
21, 1990, between County of Monroe Industrial Development Agency and the Lender.
Bond Purchase Agreement, dated as of August 1, 1974, between County
of Monroe Industrial Development Agency and Manufacturers Hanover Trust
Company/Genesee Region.
Fence owned by 000 Xxx Xx. Associates, surrounding a concrete pad
and enclosing an electrical transformer, encroaches onto property by 2.5 feet by
approximately 11.25 feet.
Liquid nitrogen tank located on the northern exterior of the
building located at 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx, owned by Air Products.
Financing statements (which do not evidence a security interest)
with respect to a cluster tool (together with related parts, components and
equipment) ordered by Storage Technolgy Corporation ("Storage") have been filed
by Storage to give notive that Sub is holding the foregoing items as a
consignee, bailee or agent for Storage. The majority of the purchase price for
the items has been paid by Storage. The items are being held at 000 Xxx Xxxx,
Xxxxxxxxx, Xxx Xxxx, to be reconfigured for a different application than that
for which it was originally designed.
17
Schedule 3.19
Tax Returns and Payments
All tax returns for fiscal year 1994 are on extension.
18
Schedule 3.20
Environmental Matters
a. See Exhibit 5 attached hereto
Hydrocarbon oil storage tank, 8,000 gal. capacity, is located to the
west of the building located at 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx. Fuel oil
storage tank, 10,000 gal. capacity, is located to the east of the building
located at 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx. The 10,000 gal. capacity tank is
no longer in use. The registration certificate has been provided to Purchaser.
c. Sub has received a proposed license agreement from the City of
Rochester seeking permission to perform certain environmental tests on Sub's
property in order to support delisting petitions to be submitted by the City of
Rochester to the New York State Department of Environmental Conservation. The
delisting petition would seek to have Sub's property excluded from the outer
loop of the former Xxxxxxx Street hazardous waste dump site map. Sub has
received conflicting oral advice from New York State officials as to the
location of the dump site boundaries.
Sub is subject to an Order on Consent issued by the New York State
Department of Environmental Conservation, a copy of which has been provided to
Purchaser.
19
Schedule 3.21
Related Party Transactions
Non-negotiable Limited Recourse Promissory Note, dated December 3,
1990, by Xxxxxxxxx Xxxxxxx in favor of Nikko in the original principal amount of
$100,000.
Stockholders' Agreement, dated as of December 21, 1990, as amended,
among Company and the signatory stockholders, which is being amended and
restated as of the Closing Date.
Employment Agreement, dated as of December 21, 1990, between Company
and Xxxxxxxxx Xxxxxxx.
Employment Agreement, dated as of October 25, 1993, between Sub and
Xxxxxx Xxxxxxx.
Employment Agreement, dated as of October 25, 1993, between Sub and
Xxxxx Xxxxxxx.
Option Agreement, dated as of December 21, 1990, between Company and
Xxxxxxxxx Xxxxxxx.
Option Agreement, dated as of December 21, 1990, between Company and
Xxxxxxxxxxx Xxxx.
Option Agreement, dated as of December 21, 1990, between Company and
Xxxx Xxxxxxxxxx, as assigned.
Option Agreement, dated as of July 12, 1993, between Company and
Xxxxxx Xxxxxxx.
Option Agreement, dated as of October 15, 1993, between Company and
Xxxxxx Xxxxxxx.
Option Agreement, dated as of October 15, 1993, between Company and
Xxxxx Xxxxxxx.
Option Agreement, dated as of February 1, 1994, between Company and
Xxxxxxx Xxxxxxx.
Option Agreement, dated as of April 18, 1994, between Company and
Yong Xxx Xxx.
Option Agreement, dated as of August 15, 1994, between Company and
Xxxxxx Xxxxxxxx.
Option Agreement, dated as of October 17, 1994, between Company and
Xxxx Xxxx.
Option Agreement, dated as of December 19, 1994, between
20
Company and Xxxxx Xxxxx.
Limited Guaranty of Collection, dated as of December 21 1990, by
Xxxxxxxxx Xxxxxxx of Sub's obligations under the Deferred Compensation Agreement
in favor of Garfield, Morse, Xxxxxxxx and Xxxxxx.
Guaranty of Collection, dated as of December 21, 1990, as confirmed
and amended as of January 29, 1992, by Xxxxxxxxx Xxxxxxx of Sub's obligations to
the Lender.
Guarantee Agreement, dated December 16, 1992, by Xxxxxxxxx Xxxxxxx
of Sub's obligations to the Lender.
Restated Individual Limited Guarantee Agreement, dated August 12,
1994, by Xxxx X. Xxxxxxx of Sub's obligations to the Lender.
Amended and Restated Pledge Security Agreement, dated December 27,
1993, by The Chase Manhattan Bank, N.A., as trustee of a trust for the benefit
of Xxxx X. Xxxxxxx, of Sub's obligations to the Lender.
Pledge Security Agreement, dated May 16, 1994, by Xxxx X. Xxxxxxx of
Sub's obligations to the Lender.
Subordinated Promissory Note, dated November 14, 1990, by Company in
favor of Nikko in the original principal amount of $1,000,000.
Subordinated Promissory Note, dated November 14, 1990, by Company in
favor of Nikko in the original principal amount of $500,000.
21
CAPITALIZATION OF CVC HOLDINGS, INC.
Shares of
8% Non- As Converted to
Cumulative Shares of Currently Options As Converted Common (including
Convertible Common Exercisable Subject to to Common Currently Exercisable
Preferred Stock Stock Options Vesting (Excluding Options) Options)
--------------- --------- ----------- ---------- ------------------- ---------------------
Nikko Tecno 870 400 0 0 35,200 35,200
Xx. X. Xxxxxxx 765 0 0 0 30,600 30,600
Xx. Xxxxx X. and 50 0 0 0 2,000 2,000
Xx. Xxxxx X. Xxxxxx,
JTWROS
Xx. X. Xxxxxxx 0 9,200 9,750 0 9,200 18,950
Xx. X. Xxxx 0 1,399 5,000 0 1,399 6,399
Xx. X. Xxxxxx 0 400 0 0 400 400
Xx. X. Xxxxxx 0 0 2,646 0 0 2,646
Xx. X. Xxxxxx 0 1,600 1,250 0 1,600 2,850
Xx. X. Xxxxxxx 0 400 667 1,333 400 1,067
Xx. X. Xxxxxx 0 800 0 0 800 800
Xx. X. Xxxxxxx 0 1,600 3,000 3,000 1,600 4,600
Xx. X. Xxxx 0 400 0 0 400 400
Xx. X. Xxxx 0 480 0 500 480 480
Xx. X. Xxx 0 1,100 0 500 1,100 1,100
Xx. X. Xxxxxxxx 0 400 0 500 400 400
Xx. X. Xxxxxxx 0 200 334 666 200 534
Xx. Xxxxx Xxxxxxx 0 0 167 333 0 167
Xx. Xxxxx Xxxxx 0 0 0 2,000 0 0
-------------------------------------------------------------------------------------------------------------------------
1,685 18,379 22,814 8,832 85,779 108,593
CVC PRODUCTS, INC.
U.S. PATENT PORTFOLIO
APRIL 12, 1995
PATENTS
No. 5,248,402 - Issued 9/28/93
APPLE-SHAPED MAGNETRON FOR SPUTTERING SYSTEM
PENDING APPLICATIONS
No. 08/369,381 (CIP) - Filed 1/06/95
MAGNETIC ORIENTING DEVICE FOR THIN FILM DEPOSITION AND
METHOD OF USE
APPLICATIONS BEING PREPARED
METHOD AND APPARATUS FOR CENTRIFUGAL PROCESSING OF
MICROELECTRONIC WAFERS
Draft sent to CVC
WAFER HANDLER FOR MULTI-STATION TOOL
Draft sent to CVC
PROSPECTIVE APPLICATIONS
Magnetic Bearing and Rotor for Vacuum Processor
Coating Measurer for Magnetically Supported Wafers
Plasma-assisted Chemical Vapor Deposition Unit
Wafer Support for Enhanced Thermal Transfer
Plasma Confinement and Control System
List of Disclosures and Patent Applications (4/30/95)(1) *
o CVC-0001: Rapid Thermal Processing High-Performance Multi-Zone Illuminator
for Wafer Backside Heating; by Xxxxxxx X. Xxxxxxx (B&B 021208.0107; Filed
on 4/13/95; Pending Application).
o CVC-0002: Apparatus and Method for Multi-Zone High-Density
Inductive1y-Coupled Plasma Generation; by Xxxxxxx X. Xxxxxxx (B&B
021208.0102; To be filed by 5/08/95).
o CVC-0003: Fabrication Process for High-Density Inductively Coupled Plasma
Source; by Xxxxxxx X. Xxxxxxx (B&B 021208.0105; To be filed by 5/15/95)
o CVC-0004: Apparatus and Method for Ionized Physical-Vapor Deposition; by
Xxxxxxx X. Xxxxxxx (B&B 021208.0103; To be Filed by 5/31/95).
o CVC-0005: Segmented-Target Cathode Apparatus and Method of Operation for
Ionized Physical-Vapor Deposition; by Xxxxxxx X. Xxxxxxx (B&B 021208.
0104; To be Filed by 5/31/95).
o CVC-0006: Apparatus and Method for Programmable Multi-Zone Injection of
Process Gases and Vapors in Microelectronics Manufacturing Equipment; by
Xxxxxxx X. Xxxxxxx, Xxx Xxxxxxx, Xxxx Xxx Xxx, Xxxxx XxXxxxxxxx, and Xxxxx
Xxxxxxx (B&B 021208.0106; To be Filed by 5/31/95).
o CVC-0007: Sensor Apparatus and Method for Autocalibration of Temperature
Sensors in Rapid Thermal Processing Equipment, by Xxxxxxx X. Xxxxxxx, and
Yong Xxx Xxx (B&B 021208.0107; To be filed by 5/31/95).
o CVC-0008: High-Magnetic-Flux Permanent Magnet Array Apparatus and Method
for High-Productivity Physical-Vapor Deposition; by Xxxxxx Xxxxxxxxx (B&B
021208.0108; To be Filed by 5/31/95).
o CVC-0009: High-Magnetic-Flux Cathode Apparatus and Method for
High-Productivity Physical-Vapor Deposition; by Xxx Xxxxxxx, Xxxxxxx X.
Xxxxxxx, Xxxxxx Xxxxxxxxx, and Xxxxx Xxxxx (B&B 021208.0109; To be filed
by 5/31/95).
o CVC-0010: Ultra-High-Vacuum Cathode Apparatus and Method for
Physical-Vapor Deposition; by Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxxx, and
Xxx Xxxxxxx (B&B 02l208.0110; To be filed by 5/31/95).
----------
(1) Xxxxxxx Xxxxxxx; PAT_AP95.DOC; 4/30/95
* All "to be filed by dates" are subject to change
o CVC-0011: High-Performance Stacked Robot Apparatus and Method for
Automated Substrate Handling in Microelectronics Manufacturing Equipment;
by Xxxxxxx X. Xxxxxxx (Xxxx Xxxxxxxx/NY; To be filed by 5/31/95).
o CVC-0012: Apparatus and Method for Programmable Ultraclean Support and
Rotation of Substrates in Microelectronics Manufacturing Equipment; by
Xxxxxxx X. Xxxxxxx and Yong Xxx Xxx (Xxxx Xxxxxxxx/NY; To be filed by
6/07/95).
o CVC-0013: Multi-Point Precision Pyrometry Sensors for Rapid Thermal
Processing Equipment; by Yong Xxx Xxx and Xxxxxxx X. Xxxxxxx (B&B
021208.0111; To be filed by 6/07/95).
o CVC-00l4: Programmable Ultraclean Electromagnetic Substrate Rotation
Apparatus and Method for Microelectronics Manufacturing Equipment; by
Xxxxxxx X. Xxxxxxx and Yong Xxx Xxx (B&B 021208.0112; To be filed by
6/07/95).
o CVC-0015: Temperature-Controlled Xxxxx for Single-Substrate Manufacturing
Equipment; by Xxxxxxx X. Xxxxxxx (B&B 021208.0113; Provisional Application
to be filed on 6/08/95; Section 111A Application by 7/31/95).
o CVC-0016: Inductively-Heated Temperature-Controlled Rotating Xxxxx for
Single-Substrate Manufacturing Equipment; by Xxxxxxx X. Xxxxxxx and Xxxx
Xxx Xxx (B&B 021208.0114; Provisional Application to be filed on 6/08/95;
Section 111A Application by 7/31/95).
o CVC-0017: Monolithic Electrostatic Xxxxx for Single-Substrate
Microelectronic Manufacturing Equipment; by Xxxxxxx X. Xxxxxxx (B&B
021208.0115; Provisional Application to be filed on 6/08/95; Section 111A
Application by 7/31/95).
o CVC-0018: Multi-Target Physical-Vapor-Deposition Module Apparatus and
Method for Microelectronics Device Manufacturing Applications; by Xxxxxxx
X. Xxxxxxx and Yong Xxx Xxx (B&B 021208.0116; Provisional Application to
be filed on 6/08/95; Section 111A Application by 8/31/95).
o CVC-0019: High-Productivity Automated Substrate Handler for
Microelectronics Manufacturing Equipment; by Xxxxxxx X. Xxxxxxx (B&B
021208.0117; Provisional Application to be filed on 6/08/95; Section 111A
Application by 8/31/95).
o CVC-0020: Centrifugal Processing Apparatus and Method for Microelectronics
Device Manufacturing; by Xxxxxxx X. Xxxxxxx (Xxxx
2
Xxxxxxxx/NY; Provisional Application to be filed on 6/08/95; Section 111A
Application by 8/31/95).
o CVC-0021: Low-Thermal-Mass Optical Window for Rapid Thermal Processing
Equipment; by Xxxxxxx X. Xxxxxxx (B&B 021208.0118; Provisional Application
to be filed on 6/08/95; Section 111A Application by 8/31/95).
o CVC-0022: Centrifugal Substrate Clamping Apparatus and Method for
Microelectronics Manufacturing Equipment; by Xxxxxxx X. Xxxxxxx (B&B
021208.0119; Provisional Application to be filed on 6/08/95; Section 111A
Application by 9/30/95).
o CVC-0023: Multi-Electrode Sheet Resistance Uniformity Sensor; by Xxxxxxx
X. Xxxxxxx (B&B 021208.0120; Provisional Application to be filed on
6/08/95; Section 111A Application by 9/30/95).
o CVC-0024: Liquid Metal Contact for Rotating Wafer Electrical Bias; by
Xxxxxxx X. Xxxxxxx (B&B 021208121; Provisional Application to be filed on
6/08/95; Section 111A Application filing to be determined).
o CVC-0025: Real-Time In-Situ Microbalance Film Thickness Sensor for
Microelectronics Manufacturing Equipment; by Xxxxxxx X. Xxxxxxx (B&B
021208.0122; Provisional Application to be filed on 6/08/95; Section 111A
Application filing to be determined).
o CVC-0026: Real-Time Acoustic Temperature Mapping in Rapid Thermal
Processing Equipment with Wafer Rotation; by Xxxxxxx X. Xxxxxxx and Yong
Xxx Xxx (B&B 021208.0123; Provisional Application to be filed on 6/08/95;
Section 111A Application by 10/31/95).
o CVC-0027: Magnetic Substrate Handling and Clamping for Microelectronics
Manufacturing Equipment; by Xxxxxxx X. Xxxxxxx (B&B 021208.0124;
Provisional Application to be filed on 6/08/95; Section 111A Application
filing to be determined).
o CVC-0028: Multi-Zone Inductive Substrate Heating Energy Source for Rapid
Thermal Processing Equipment; by Xxxxxxx X. Xxxxxxx (B&B 021208.0125;
Provisional Application to be filed on 6/08/95; Section 111A Application
by 10/31/95).
o CVC-0029: Apparatus and Method for In-Situ Substrate Degassing in
Inductive1y-Coupled Plasma Processing Equipment; by Xxxxxxx X. Xxxxxxx
(B&B 021208.0126; Provisional Application to be filed on 6/08/95; Section
111A Application by 11/15/95).
o CVC-0030: Inductively Coupled Plasma Etching Using Pulsed Inductive Wafer
Heating; by Xxxxxxx X. Xxxxxxx (B&B 021208.0127; Provisional
3
Application to be filed on 6/08/95; Section 111A Application filing to be
determined).
o CVC-0031: Physical-Vapor Deposition Apparatus and Method for In-Situ
Refractory Metal Silicide Formation; Xxxxxxx X. Xxxxxxx and Xxx Xxxxxxx
(B&B 021208.0128; Provisional Application to be filed on 6/08/95; Section
111A Application by 11/30 Provisional Application to be filed on 6/08/95;
Section 111A Application by 11/15/95).
o CVC-0032: Emissivity-Compensated Pyrometry Sensors for Rapid Thermal
Processing Equipment; by Xxxxxxx X. Xxxxxxx (B&B 021208.0129; Provisional
Application to be filed on 6/08/95; Section 111A Application by 11/30/95).
o CVC-0033: Improved Rapid Thermal Process Control Using
Temperature-Controlled Warm Optical Window; by Xxxxxxx X. Xxxxxxx (B&B
021208.0130; Provisional Application to be filed on 6/08/95; Section 111A
Application by 11/30/95).
o CVC-0034: Thickness and Uniformity Control or Multilayer Material
Structures in Multi-Target Physical-Vapor Deposition Equipment; by Xxxxxxx
X. Xxxxxxx, Xxxx Xxx Xxx, and Xxx Xxxxxxx (B&B 021208.0131; Provisional
Application to be filed on 6/08/95; Section 111A Application by 12/15/95).
4
CVC HOLDINGS, INC.
9/30/94 3/31/95 4/30/95 5/12/95
SUMMARY
Chase Bank
Line of Credit 327,315 0 0 0
Notes 1,000,000 1,000,000 1,000,000 1,000,000
2nd Mortgage 280,000 265,253 250,168 235,083
Sub-Total 1,607,315 1,265,253 1,250,168 1,235,083
HYGE Partners 565,603 802,252 823,330 823,330
Nikko 2,500,000 2,500,000 2,500,000 2,500,000
663,234 1,000,000 1,000,000 1,000,000
Chemical Bank (COMIDA) 1,069,187 999,617 987,753 975,883
Sub'd't'd Note-Shareholder 254,086 263,086 263,086 263,086
APPENDIX I INVENTORY OF HAZARDOUS CHEMICALS
--------------------------------------------------------------------------------------------------------
CVC Inventory Trade Name Supplier/Manufacturer HMIS Rating Location MSDS
Number on file
--------------------------------------------------------------------------------------------------------
4X597-A Dayton Electric 2/4/0 Y
--------------------------------------------------------------------------------------------------------
99.6% Pure Nitrogen 911
--------------------------------------------------------------------------------------------------------
Acetone 1/3/2 All Y
--------------------------------------------------------------------------------------------------------
Acetylene
--------------------------------------------------------------------------------------------------------
Agitene, regular Xxxx Xxxxx Corp
--------------------------------------------------------------------------------------------------------
Alumina, basic XxXxxxx Refractory 1/0/0 Y
--------------------------------------------------------------------------------------------------------
Alumina, activated Monsanto 1/0/0
--------------------------------------------------------------------------------------------------------
Aluminum putty Devcon 1/1/0 Y
--------------------------------------------------------------------------------------------------------
Antioxidant #29 DuPont
--------------------------------------------------------------------------------------------------------
Apiezon, Type L 911
--------------------------------------------------------------------------------------------------------
Argon Gas 911
--------------------------------------------------------------------------------------------------------
B44VA4 Sealer Xxxxxxx Xxxxxxxx 911
--------------------------------------------------------------------------------------------------------
Bendix Evaporation 911
Material- Cr, TiO
--------------------------------------------------------------------------------------------------------
XX Xxxxxxxx A541B 911
--------------------------------------------------------------------------------------------------------
Bismuth metal powder General Electric 0/0/1 - Y
--------------------------------------------------------------------------------------------------------
Blue AD metallic enamel Xxxxxxxx Corp./Xxxxxx Div.
APA 2424
--------------------------------------------------------------------------------------------------------
Boat Armour Kits A & B 911
--------------------------------------------------------------------------------------------------------
Xxxxxx LO-30 Oil 911
--------------------------------------------------------------------------------------------------------
Booth compound 6610 Calgon
--------------------------------------------------------------------------------------------------------
Broma Heatmaster DAP Inc. Y
enamel 136 Aluminum
--------------------------------------------------------------------------------------------------------
Butyl phosphate Bendix
--------------------------------------------------------------------------------------------------------
CIM Tap II 911, 912
--------------------------------------------------------------------------------------------------------
CVC-19 CVC Y
--------------------------------------------------------------------------------------------------------
CVC-60 CVC Y
--------------------------------------------------------------------------------------------------------
CVC-70 CVC Y
--------------------------------------------------------------------------------------------------------
CVC-70/19 CVC Y
--------------------------------------------------------------------------------------------------------
CVC DC-702 CVC Y
--------------------------------------------------------------------------------------------------------
APPENDIX I INVENTORY OF HAZARDOUS CHEMICALS
--------------------------------------------------------------------------------------------------------
CVC Inventory Trade Name Supplier/Manufacturer HMIS Rating Location MSDS
Number on file
--------------------------------------------------------------------------------------------------------
CVC DC-704 CVC Y
--------------------------------------------------------------------------------------------------------
CVC DC-705 CVC Y
--------------------------------------------------------------------------------------------------------
CVC/KRYTOX 1506 CVC Y
--------------------------------------------------------------------------------------------------------
CVC/KRYTOX 1514 CVC Y
--------------------------------------------------------------------------------------------------------
CVC/KRYTOX 1525 CVC Y
--------------------------------------------------------------------------------------------------------
CVC/KRYTOX 1618 CVC Y
--------------------------------------------------------------------------------------------------------
Caviclean #2 Xxxxx Products 2/2/1 Y
--------------------------------------------------------------------------------------------------------
Celite 545 Xxxxxx
--------------------------------------------------------------------------------------------------------
Cellose Xxxxx Xxxxxxx 0/1/- Y
--------------------------------------------------------------------------------------------------------
Celvacene CVC
--------------------------------------------------------------------------------------------------------
Celvaseal 911
--------------------------------------------------------------------------------------------------------
Chemax hardening Chemax Inactive
cement Tracet 600A
--------------------------------------------------------------------------------------------------------
Chemtronics E-series 911
Ultrajet
--------------------------------------------------------------------------------------------------------
Chlorothene VG Chemical Sales 1/1/1
--------------------------------------------------------------------------------------------------------
0000-000-0000 Cimperial 1011 Cincinnati Milacron 2/1/2 Inactive
--------------------------------------------------------------------------------------------------------
Convalex 10 CVC
--------------------------------------------------------------------------------------------------------
Convoil 20 CVC
--------------------------------------------------------------------------------------------------------
Cool-Amp silver plating 911
powder
--------------------------------------------------------------------------------------------------------
Crown Dry Graphite 911
--------------------------------------------------------------------------------------------------------
DP190 Epoxy Scotch-Weld 911
--------------------------------------------------------------------------------------------------------
DSL Clearcut 140B Xxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------
DSL Compound 1 Xxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------
DSL regular 30 Xxxxx Xxxxxxx
--------------------------------------------------------------------------------------------------------
DTE Oil 25 Mobil
--------------------------------------------------------------------------------------------------------
Dayton Acrylic Enamel 911
--------------------------------------------------------------------------------------------------------
Dexter Hysol #PC28 Dexter 911
STD
--------------------------------------------------------------------------------------------------------
Devcon Aluminum Putty 911
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
APPENDIX I INVENTORY OF HAZARDOUS CHEMICALS
--------------------------------------------------------------------------------------------------------
CVC Inventory Trade Name Supplier/Manufacturer HMIS Rating Location MSDS
Number on file
--------------------------------------------------------------------------------------------------------
Diethyl Hexyl Phthalate Aristech Chem. Corp. 2/1/0
(PX-138)
--------------------------------------------------------------------------------------------------------
Dioctyl Sebacate XX Xxxx Co. 1/1/1
--------------------------------------------------------------------------------------------------------
Xxxxx'x Graphite Flake 911
--------------------------------------------------------------------------------------------------------
Dowanol XX Xxx 2/2/0
--------------------------------------------------------------------------------------------------------
Dow Corning 55 Dow Corning 911
--------------------------------------------------------------------------------------------------------
Dow Corning 702 Dow Corning
--------------------------------------------------------------------------------------------------------
Dow Corning 704 Dow Corning 911
--------------------------------------------------------------------------------------------------------
Dow Corning 705 Dow Corning 911
--------------------------------------------------------------------------------------------------------
Dow Corning 340 Dow Corning 911
--------------------------------------------------------------------------------------------------------
Dow Corning "Z" Moly Dow Corning 911
Powder
--------------------------------------------------------------------------------------------------------
Dow Corning Vac Dow Corning 911
Grease
--------------------------------------------------------------------------------------------------------
Duo-Seal CVC
--------------------------------------------------------------------------------------------------------
DuPont oil blue A Pylam
--------------------------------------------------------------------------------------------------------
DuPont oil yellow liquid DuPont 2/3/0 Inactive Y
dye
--------------------------------------------------------------------------------------------------------
Enerpar SE-52 BP Oil 0/1/0 - Y
--------------------------------------------------------------------------------------------------------
Enthol 210 Enthone Inc. 2/0/0 Inactive Y
--------------------------------------------------------------------------------------------------------
Ethyl Glycol Xxxxx
--------------------------------------------------------------------------------------------------------
Flat Black baking Xxxxxxx-Xxxxxxxx 2/3/0
enamel
--------------------------------------------------------------------------------------------------------
Franklin Vanguard 911
--------------------------------------------------------------------------------------------------------
Freon 12 DuPont Inactive
--------------------------------------------------------------------------------------------------------
Freon 22
--------------------------------------------------------------------------------------------------------
Freon TC-7 Raeco 0/3/0 Y
--------------------------------------------------------------------------------------------------------
Freon XX XxXxxx 0/3/0 Y
--------------------------------------------------------------------------------------------------------
Xxxxxxx creme Cleanser 911
--------------------------------------------------------------------------------------------------------
Gougen West Epoxy 911
System
--------------------------------------------------------------------------------------------------------
GRL cleaner #1190 Cello Corp 1/0/0 Y
--------------------------------------------------------------------------------------------------------
Helium Gas 911
--------------------------------------------------------------------------------------------------------
APPENDIX I INVENTORY OF HAZARDOUS CHEMICALS
--------------------------------------------------------------------------------------------------------
CVC Inventory Trade Name Supplier/Manufacturer HMIS Rating Location MSDS
Number on file
--------------------------------------------------------------------------------------------------------
Hi-Tech 00747 solvent 911
& degreaser
--------------------------------------------------------------------------------------------------------
Hydrochloric acid Xxxxxx 3/0/2 Y
--------------------------------------------------------------------------------------------------------
Hydrol 146 Raeco Inactive
--------------------------------------------------------------------------------------------------------
Instapak parts cleaner 911
--------------------------------------------------------------------------------------------------------
Isopropyl alcohol Shell 3/3/0 All Y
--------------------------------------------------------------------------------------------------------
Isopropynol 911
--------------------------------------------------------------------------------------------------------
Xxx-Draw 722 SC Xxxxxxx 1/1/0 Y
--------------------------------------------------------------------------------------------------------
Kerosene Raeco 0/2/0 Y
--------------------------------------------------------------------------------------------------------
Kool Mist Formula 78
--------------------------------------------------------------------------------------------------------
Krylon Crystal Clear Krylon 911
#1301 & 1302
--------------------------------------------------------------------------------------------------------
Krylon Black Paint Krylon 911
--------------------------------------------------------------------------------------------------------
Krylon interior/exterior Krylon 911
--------------------------------------------------------------------------------------------------------
Krytox DuPont
--------------------------------------------------------------------------------------------------------
LPS Instant Cleaner 911
--------------------------------------------------------------------------------------------------------
LPS2 Lubricant 911
--------------------------------------------------------------------------------------------------------
Liquid Nitrogen 911
--------------------------------------------------------------------------------------------------------
Loctite liquid pipe -911
sealant w/Teflon
--------------------------------------------------------------------------------------------------------
Loctite #271 911
--------------------------------------------------------------------------------------------------------
Loctite 414 super bond 911
--------------------------------------------------------------------------------------------------------
Loctite Solvent 911 -
--------------------------------------------------------------------------------------------------------
Lubriplate # 107 911
--------------------------------------------------------------------------------------------------------
Magnesium oxide Xxxxxx
--------------------------------------------------------------------------------------------------------
#10 Flushing fluid Xxxxxx Scientific
--------------------------------------------------------------------------------------------------------
#18 Flushing fluid Xxxxxx Scientific
--------------------------------------------------------------------------------------------------------
#19 Flushing fluid Xxxxxx Scientific
--------------------------------------------------------------------------------------------------------
Mercury Xxxxxxxxx Chemical 4/0/1 Y
--------------------------------------------------------------------------------------------------------
Methanol Xxxxx 3/3/1 Inactive Y
--------------------------------------------------------------------------------------------------------
Milk of Magnesia Purepac 911
--------------------------------------------------------------------------------------------------------
APPENDIX I INVENTORY OF HAZARDOUS CHEMICALS
--------------------------------------------------------------------------------------------------------
CVC Inventory Trade Name Supplier/Manufacturer HMIS Rating Location MSDS
Number on file
--------------------------------------------------------------------------------------------------------
Mobil Velocite oil #10 Mobil
--------------------------------------------------------------------------------------------------------
Molykote (R) grease Dow Corning 1/1/0
--------------------------------------------------------------------------------------------------------
Mop/Strip #1121 Cello Corp. 3/0/0 Inactive Y
--------------------------------------------------------------------------------------------------------
Mullite XxXxxxx Refractory 1/0/0 Y
--------------------------------------------------------------------------------------------------------
Nalclean 2568 nalco
--------------------------------------------------------------------------------------------------------
Naptha VM+P Shell 2/3/0 Inactive Y
--------------------------------------------------------------------------------------------------------
Nitric acid Allied Chemical 3/0/3 Inactive
--------------------------------------------------------------------------------------------------------
0413-1120 Nitrogen Union Carbide 3/0/0 Y
--------------------------------------------------------------------------------------------------------
Nylatron shapes Polymer 1/0/0 Inactive Y
--------------------------------------------------------------------------------------------------------
0413-1203 Oakite 32 Oakite 3/0/2 Inactive Y
--------------------------------------------------------------------------------------------------------
Oakite 33 Oakite 2/0/1 Y
--------------------------------------------------------------------------------------------------------
Oakite 542NN Oakite 1/2/2 Y
--------------------------------------------------------------------------------------------------------
Oakite bright Oakite 3/0/3 Y
--------------------------------------------------------------------------------------------------------
Oakite bright keep Oakite 2/0/2 Y
--------------------------------------------------------------------------------------------------------
0413-1202 Oakite deoxidizer Oakite 3/0/3 Inactive Y
--------------------------------------------------------------------------------------------------------
Oakite Dispoz Aid Oakite 1/0/1 Y
--------------------------------------------------------------------------------------------------------
0413-1200 Oakite Dynadet Oakite 3/0/1 Inactive Y
--------------------------------------------------------------------------------------------------------
Oakite Enhance Oakite 1/1/0 - Y
--------------------------------------------------------------------------------------------------------
Oakite Dynadet Oakite 1/1/0 Y
--------------------------------------------------------------------------------------------------------
Octoil CVC Y
--------------------------------------------------------------------------------------------------------
Octoil-S CVC Y
--------------------------------------------------------------------------------------------------------
Oil, petroleum, NFO Corp.
lubricant A-90
--------------------------------------------------------------------------------------------------------
Oxygen Union Carbide 3/0/0 Y
--------------------------------------------------------------------------------------------------------
PTFE & TFE shapes Polymer 1/1/0 Y
--------------------------------------------------------------------------------------------------------
Paratec Raeco 1/1/0 Y
--------------------------------------------------------------------------------------------------------
Patchlin 964 Patchlin 3/2/2 Inactive Y
--------------------------------------------------------------------------------------------------------
Peel Filmite Chemed Corp. Inactive
--------------------------------------------------------------------------------------------------------
Permabond 015 911
--------------------------------------------------------------------------------------------------------
Permagloss Plus Cello Corp. 1/0/0 Inactive Y
--------------------------------------------------------------------------------------------------------
Permatex removeable 911
thread locker
--------------------------------------------------------------------------------------------------------
Plasma-oil 80 CVC Y
--------------------------------------------------------------------------------------------------------
APPENDIX I INVENTORY OF HAZARDOUS CHEMICALS
--------------------------------------------------------------------------------------------------------
CVC Inventory Trade Name Supplier/Manufacturer HMIS Rating Location MSDS
Number on file
--------------------------------------------------------------------------------------------------------
Plasti-Dip 911
--------------------------------------------------------------------------------------------------------
Precisionnaire 911
adhesive
--------------------------------------------------------------------------------------------------------
OS-124 Polyphenyl Monsanto 0/1/0 Y
Ether Lubricant
--------------------------------------------------------------------------------------------------------
Propane Bernzomatic 1/4/0 Y
--------------------------------------------------------------------------------------------------------
RTV # 106 GE 911
--------------------------------------------------------------------------------------------------------
Raeco 600 W gear oil Raeco Inactive
--------------------------------------------------------------------------------------------------------
Refrigeration fluid Sun Oil
--------------------------------------------------------------------------------------------------------
SAE 30 oil
--------------------------------------------------------------------------------------------------------
SAF-SOL20/20 Certified Labs 3/4/1 Inactive Y
--------------------------------------------------------------------------------------------------------
Safety Solvent #8060 Crown 3/0/1 913 Y
--------------------------------------------------------------------------------------------------------
Saniwax 911
--------------------------------------------------------------------------------------------------------
Silicone resin solution Xxxxx Xxxxxxx (GE)
SR-882M
--------------------------------------------------------------------------------------------------------
Soda ash Allied 1/0/1 Inactive Y
--------------------------------------------------------------------------------------------------------
Sodium silicate Diamond Shamrock 1/0/0 Inactive
--------------------------------------------------------------------------------------------------------
Sodium silicate N Xxxxxxx Inactive
--------------------------------------------------------------------------------------------------------
Solder Xxxxxx SN60 PB40 -911
--------------------------------------------------------------------------------------------------------
Solder Rochester Lead Works 3/0/0 910 Y
--------------------------------------------------------------------------------------------------------
Soldering flux #1636 Xxxxxx 910
--------------------------------------------------------------------------------------------------------
Solvex-10 CVC
--------------------------------------------------------------------------------------------------------
Solvolene, petroleum Raeco 2/3/0 Inactive Y
naptha
--------------------------------------------------------------------------------------------------------
SS putty-resin Devcon 1/1/0 Inactive Y
--------------------------------------------------------------------------------------------------------
SS brightener Diversey/Wyandotte 3/0/3 Inactive Y
DS-9-333
--------------------------------------------------------------------------------------------------------
Stay Clean Flux Xxxxxx 910 Y
--------------------------------------------------------------------------------------------------------
Sleet Ink, aerosol DoAll 4/3/0 Inactive Y
--------------------------------------------------------------------------------------------------------
Slick wax #140 Xxxxxxx 0/0/0 Inactive Y
--------------------------------------------------------------------------------------------------------
Sulfuric acid Xxxxx 3/0/3 Y
--------------------------------------------------------------------------------------------------------
Sure-Sol-200 Xxxx 2/3/0 Y
--------------------------------------------------------------------------------------------------------
TW-4 CVC Y
--------------------------------------------------------------------------------------------------------
TW-7 CVC Y
--------------------------------------------------------------------------------------------------------
APPENDIX I INVENTORY OF HAZARDOUS CHEMICALS
--------------------------------------------------------------------------------------------------------
CVC Inventory Trade Name Supplier/Manufacturer HMIS Rating Location MSDS
Number on file
--------------------------------------------------------------------------------------------------------
TW-Light CVC Y
--------------------------------------------------------------------------------------------------------
Tetrochlorothene 3/0/1 Inactive
--------------------------------------------------------------------------------------------------------
Thinner # 103 Xxxxxx Inactive Y
--------------------------------------------------------------------------------------------------------
Toluene Xxxxx 2/3/0 913 Y
--------------------------------------------------------------------------------------------------------
Turbo T Oil 32 Shell Inactive
--------------------------------------------------------------------------------------------------------
Trichloroethene 1,1,1 Chemical Sales 1/1/1 Inactive Y
--------------------------------------------------------------------------------------------------------
Ultimate Self-polishing Xxxx Laboratories
Finish
--------------------------------------------------------------------------------------------------------
Unocal multipurpose Unocal 0/1/0 Y
ATF
--------------------------------------------------------------------------------------------------------
UPS lubricant #2 911
--------------------------------------------------------------------------------------------------------
Vibracut compound Xxxxxxx Mfg. Inactive
--------------------------------------------------------------------------------------------------------
Vistac Oil 68X Chevron Inactive
--------------------------------------------------------------------------------------------------------
VOL Temproof 911
--------------------------------------------------------------------------------------------------------
Waterless surface Xxxx 0/1/0 Y
plate cleaner
--------------------------------------------------------------------------------------------------------
Wax-cut concentrate Xxxxxxx 0/1/0 Inactive Y
#000
--------------------------------------------------------------------------------------------------------
Xxx oil -
--------------------------------------------------------------------------------------------------------
White spray booth Essex 2/3/2 Inactive Y
coating
--------------------------------------------------------------------------------------------------------
Xxxxx'x #205 911 Y
lubricating graphite
--------------------------------------------------------------------------------------------------------
Xylene Shell 2/3/0 Inactive Y
--------------------------------------------------------------------------------------------------------
Z Moly-Powdr Dow Corning 1/0/0 Y
--------------------------------------------------------------------------------------------------------
EXHIBIT D
STOCKHOLDERS' AGREEMENT
(See Tab 7)
EXHIBIT E
REGISTRATION RIGHTS AGREEMENT
(See Tab 8)
EXHIBIT G
MATERIAL CONTRACTS
Exhibit G
Material Contracts
Agreement of Purchase and Sale of Stock, dated as of December 21,
1990, among Company and each of the seller of shares of capital stock of Sub
named therein.
Subordinated Promissory Note, dated December 21, 1990, by Company in
favor of Xxxxxx X. Xxxxxxxx ("Xxxxxxxx") in the original principal amount of
$45,360.
Subordinated Promissory Note, dated December 21, 1990, by Company in
favor of Xxxxxx Xxxxxxxx ("Garfield") in the original principal amount of
$46,582.
Subordinated Promissory Note, dated December 21, 1990, of Company in
favor of Xxxxxxx X. Xxxxx ("Xxxxx") in the original principal amount of $49,036.
Subordinated Promissory Note, dated December 21, 1990, by Company in
favor of Xxxxx Xxxxxx ("Xxxxxx") in the original principal amount of $46,582.
Subordinated Promissory Note, dated December 21, 1990, by Company in
favor of Avstone & Company ("Avstone") in the original principal amount of
$12,440.
Subordinated Guaranty, dated as of December 21, 1990 (the
"Subordinated Guaranty"), by the Sub of Company's obligations under each of the
Subordinated Promissory Notes referred to above.
Subordination Agreement, dated December 21, 1990, among Sub,
Garfield, Morse, Wright, Anderson, Avstone and the Lender, with respect to
the Subordinated Guaranty.
Consulting and Sales Agreement, dated as of December 21, 1990, as
amended as of May 7, 1993, between Sub and HYGE Partners.
Agreement, dated as of May 4, 1994, between Sub and HYGE Partners.
Subordination Agreement, dated as of December 21, 1990, among HYGE,
Sub and The Chase Manhattan Bank, N.A., as successor to Chase Lincoln First
Bank, NA. (the "Lender"), with respect to the Consulting and Sales Agreement
referred to above.
Agreement with respect to Deferred Compensation Plan, dated as of
December 21, 1990, for Officers of Sub among Sub, Garfield, Morse, Xxxxxxxx and
Xxxxxx.
Subordinated Guaranty Agreement, dated as of December 21, 1990, by
Company of Sub's obligations under the Agreement with respect to Deferred
Compensation Plan for Officers of Sub referred to above.
Amended and Restated Revolving Loan and Security Agreement, dated as
of January 29, 1992, as amended December 16, 1992, February 11, 1993 and August
12, 1994, between Sub and the Lender.
Security Agreement, dated as of September 1, 1988, as amended,
between the Lender and Sub.
Amended and Restated Mortgage Note, dated December 21, 1990, as
amended, by Sub in favor of the Lender in the original principal amount of
$500,000.
Amended and Restated Promissory Note, dated August 12, 1994, as
extended February 17, 1995, by Sub in favor of the Lender in the original
principal amount of $500,000.
Amended and Restated Promissory Note, dated August 12, 1994, as
extended February 17, 1995, by Sub in favor of the Lender in the original
principal amount of $500,000.
Guaranty Agreement, dated as of December 21, 1990, by Company of
Sub's obligations to the Lender.
Assignment of Life Insurance Policy upon the life of Xxxxxxxxx
Xxxxxxx, dated December 21, 1990, by Sub to the Lender.
Subordinated Promissory Note, dated December 21, 1990, by Sub in
favor of Company in the original principal amount of $1,500,000.
Stockholders' Agreement, dated as of December 21, 1990, as amended,
among Company and the signatory stockholders.
Subordinated Promissory Note, dated November 14, 1990, by Company in
favor of Nikko in the original principal amount of $1,000,000.
Subordinated Promissory Note, dated November 14, 1990, by Company in
favor of Nikko in the original principal amount of $500,000.
Subordination Agreement, dated December 21, 1990, as supplemented,
among Company, Sub and the Lender.
Option Agreement, dated as of December 21, 1990, between Company and
Xxxxxxxxx Xxxxxxx.
Option Agreement, dated as of December 21, 1990, between Company and
Xxxxxxxxxxx Xxxx.
Option Agreement, dated as of December 21, 1990, between Company and
Xxxx Xxxxxxxxxx, as assigned.
Option Agreement, dated as of January 24, 1992, between Company and
Xxxxx Little (together with Employment Agreement, dated November 19, 1990,
between Xxxxx Little and Sub, contemplating the grant of additional options).
Option Agreement, dated as of July 12, 1993, between Company and
Xxxxxx Xxxxxxx.
Option Agreement, dated as of October 15, 1993, between Company and
Xxxxxx Xxxxxxx.
Option Agreement, dated as of October 15, 1993, between Company and
Xxxxx Xxxxxxx.
Option Agreement, dated as of February 1, 1994, between Company and
Xxxxxxx Xxxxxxx.
Option Agreement, dated as of April 18, 1994, between Company and
Yong Xxx Xxx.
Option Agreement, dated as of August 15, 1994, between Company and
Xxxxxx Xxxxxxxx.
Option Agreement, dated as of October 17, 1994, between Company and
Xxxx Xxxx.
Option Agreement, dated as of December 19, 1994, between Company and
Xxxxx Xxxxx.
Various purchase orders for Sub's products made in the ordinary
course of business.
Agreement, dated August 27, 1993, between Sub and Texas Instruments
Incorporated.
Agreement, dated January 1, 1989, between Sub and The BOC Group,
Inc.
Software Components Binary License Agreement, dated December 8,
1992, between Sub and Realtime Performance, Inc.
Purchase and License Quotation and Agreement, dated February 22,
1989, as amended, between Sub and Techware Systems Corporation.
Agreement for Purchase and Sale of Assets, dated as of September 30,
1992, between Sub and Process Products Corporation.
Asset Purchase and Sale Agreement, dated as of September 30, 1993,
among Company, Sub and Varian Associates, Inc.
Agreement, dated May 26, 1994, between Sub and New York State Energy
Research and Development Authority.
Lease, dated as of August 1, 1974, between Sub and County of Monroe
Industrial Development Agency, with respect to space in Rochester, New York; as
assigned by Assignment of Lease from County of Monroe Industrial Development
Agency to Manufacturers Hanover Trust Company/Genesee Region, dated August 1,
1974.
Guaranty, dated August 1, 1974, by Sub in favor of County of Monroe
Industrial Development Agency.
Agreement, dated September 16, 1974, among Sub, County of Monroe
Industrial Development Agency and Manufacturers Hanover Trust Company/Genesee
Region.
Lease, dated as of July 21, 1993, between Sub and Mission Falls
Corporation, with respect to space in Fremont, California.
Lease term sheet, dated June 18, 1993, between Sub and
Mercantile-Safe Deposit & Trust Company, as assignee of Mercantile-Towson Joint
Venture, with respect to space in Towson, Maryland.
Guaranteed Support Agreement, dated August 19, 1983, between Sub and
Empire Data Processing, Inc. (including End User License Agreement and End User
Guarantee of Payment annexed thereto).
Cooperation Agreement, dated December 1993, between Sub and
Interuniversitair Micro-Elektronica Centrum vzw.
License Agreement, dated December 1993, between Sub and
Interuniversitair Micro-Elektronica Centrum vzw.
Sponsored Research Agreement, dated November 29, 1994, between Sub
and The Research Foundation of State University of New York.
Employment Agreement, dated as of December 21, 1990, between Sub and
Xxxxxxxxx Xxxxxxx.
Employment Agreement, dated as of October 25, 1993, between Sub and
Xxxxxx Xxxxxxx.
Employment Agreement, dated as of October 25, 1993, between Sub and
Xxxxx Xxxxxxx.
Agreement between Sub and Local 342 of the International Union of
Electronic, Electrical, Salaried, Machine & Furniture Workers, AFL-CIO, dated
November 7, 1991, as extended.
(Planar) Agreement among the Government (Advanced Research Projects
Agency), Sub and the other Consortium members named therein.
Contract, dated September 15, 1994, between Sub and the Office of
Naval Research.
National Science Foundation Grant Letter, dated April 20, 1995, to
Sub for support of project entitled "Senior Fusion for Advanced Copper
Metallization Cluster Tool" (Proposal No. DMI-9461125).
Letter of Understanding and Agreement, dated August 25, 1994, as
amended, between Company and Xxxxxx & Xxxxxxx, Inc.
EXHIBIT H
FORM OF LEGAL OPINION
(See Tab 10)
EXHIBIT I
AMENDMENT TO BYLAWS
CVC HOLDINGS, INC. BYLAW AMENDMENTS
(approved by Unanimous Consent
of the Board of Directors of CVC
Holdings, Inc. (the "Corporation"),
dated May 11, 1995)
Article II, Section 3 of the Bylaws of the Corporation were amended
by deleting the last sentence of such section and substituting the following
therefor:
"In the interim between annual meetings of stockholders or of
special meetings of stockholders called for the election of
directors and/or for the removal of one or more of the directors and
for the filling of any vacancy in that connection, newly created
directorships and any vacancies in the Board of Directors, including
vacancies resulting from the removal of directors for cause or
without casue, may be filled only by the vote or written consent in
lieu of meeting of the class of stockholders entitled to elect such
director. At any meeting held for the purpose of electing a director
or directors, the presence in person or by proxy of the holders of
the majority of shares then outstanding of the class entitled to
vote for the election of such director or directors shall constitute
a quorum for the purpose of electing a director or directors by the
stockholders of such class."
Article II, Section 5 of the Bylaws of the Corporation were amended
by deleting such section in its entirety and substituting the following
therefor:
"5. Removal of Directors. Except as may otherwise be provided by the
General Corporation Law or the Certificate of Incorporation, any or
all of the directors elected by a class of stockholders may only be
removed by the vote of the holders of not less than a majority of
the shares of such class voting thereon, provided, however, that in
case of the corporation having cumulative voting, no director may be
removed without cause if the votes against his removal would be
sufficient to elect him if voted cumulatively at an election of
directors at which the same number of votes were cast and the whole
Board were then being elected. At any meeting held for the purpose
of removing a director or directors, the presence in person or by
proxy of the holders of the majority of shares then outstanding of
the class entitled to vote for the removal of such director or
directors shall constitute a quorum for the purpose of removing a
director or directors by the stockholders of such class."
EXHIBIT J
USE OF PROCEEDS
EXHIBIT J
Part X.
Xxxxx Manhattan Bank
All amounts outstanding under the following agreements:
Amended and Restated Mortgage Note, filed December 21, 1990, as
amended, by Sub in favor of Chase Manhattan Bank, N.A. (the
"Lender"). (Amount outstanding as of the Closing Date, approximately
$235,083)
Amended and Restated Revolving Loan and Security Agreement dated as
of January 29, 1992 as amended between Sub and Lender
Amended and Restated Promissory Notes by Sub in favor of Lender in
the original aggregate principal amount of $1,000,000. (Amount
outstanding as of Closing Date, approximately $1,000,000)
HYGE Partners
All amounts outstanding under the following agreements:
Consulting and Sales Agreement, dated as of December 21, 1990,
between Sub and HYGE Partners and all amendments, notes and related
agreements pursuant thereto, including the Agreement, dated as of
May 4, 1994, between Sub and HYGE Partners. (Amount outstanding as
of Closing Date, approximately $823,330, in the aggregate.)
Nikko Tecno Co., Inc.
$1,000,000 of the Company and Sub's outstanding indebtedness to
Nikko Tecno Co., Inc.
Part II.
Up to $2,207,000 for capital expenditures budgeted over the next 12
to 18 months and the remainder for general corporate purposes.
