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EXHIBIT 10.1
AGREEMENT
This is an AGREEMENT (the "Agreement"), dated as of August 29, 1997, by
and between Spectra-Physics, Inc., a Delaware corporation ("SPI") and
Spectra-Physics Holdings USA, Inc., a Delaware corporation ("SPHUSA").
Background
A. SPI is currently a wholly-owned direct subsidiary of SPHUSA. SPHUSA
is a wholly-owned direct subsidiary of Spectra-Physics AB, a corporation
organized under the laws of Sweden ("SPAB").
B. It is contemplated that shares of SPI's stock will be offered for
sale to the public (the "Offering").
C. Spectra-Physics Lasers, Inc. ("SPLC"), Opto Power Corporation ("Opto
Power"), Laser Data Systems, Inc. ("Laser Data"), and various foreign
subsidiaries of SPAB which conducted sales and technical support operations on
behalf of SPLC, Opto Power and Laser Data, are operated as a functional group
called the Lasers and Optics Group (collectively, the "LOG"). In preparation for
the Offering, it is necessary to reorganize the LOG so that all assets and
liabilities of the LOG will be held directly or indirectly by SPI and all other
assets and liabilities will be held by SPAB or its subsidiaries (other than SPI
and its subsidiaries) (the "Reorganization") .
D. As part of the Reorganization, SPI desires to transfer to SPHUSA,
and SPHUSA desires to have transferred to it, certain assets and liabilities
subject to and in accordance with the terms and conditions contained in this
Agreement.
Terms
NOW THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Distribution of Assets. As a distribution to SPHUSA, SPI hereby
assigns, transfers and delivers to SPHUSA all of SPI's rights, title and
interest in and to all of SPI's goodwill, properties, rights and assets, of
every kind, nature and description, that are not used in or do not relate to the
business and operations of the LOG, wherever located, whether real, personal or
mixed, whether tangible or intangible, and whether or not carried on SPI's books
or
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reflected in any financial statement, including, without limitation, the assets
listed on Schedule A hereof (the "Transferred Assets").
2. Assumption of Liabilities. SPHUSA hereby assumes and agrees to pay,
perform, satisfy, discharge and be responsible for all of the debts,
obligations, contracts and liabilities of SPI that do not relate to the past or
current business or operations of the LOG or that relate to the Transferred
Assets, whether accrued, absolute, contingent or otherwise, whether past,
present or future, whether known or unknown and whether or not reflected in or
reserved on SPI's balance sheet, records or books of account, including, without
limitation, the debts, obligations, contracts and liabilities listed on Schedule
A hereof (the "Assumed Liabilities").
3. Further Assurances. At the request of SPHUSA, at any time on or
after the date hereof, SPI will execute and deliver such further instruments of
transfer and conveyance and take such other action as SPHUSA reasonably may
request effectively to assign and transfer to SPHUSA any of the Transferred
Assets.
4. Regarding Certain Consents. Nothing in this Agreement shall be
construed as an attempt to assign any contract, agreement, permit, franchise or
claim included in the Transferred Assets that is, by its terms or in law,
nonassignable without the consent of the other party or parties thereto, unless
such consent shall have been given, or as to which all the remedies for the
enforcement thereof enjoyed by SPI would not, as a matter of law, pass to SPHUSA
as an incident of the assignments provided for by this Agreement. In order,
however, to provide SPHUSA the full realization and value of every contract,
agreement, permit, franchise and claim of the character described in the
preceding sentence, SPI, on and after the date hereof by itself or by its
agents, shall, at the request and expense and under the direction of SPHUSA in
the name of SPI or otherwise as SPHUSA shall specify and as shall be permitted
by law, take all such reasonable action (including, without limitation, the
appointment of SPHUSA as attorney-in-fact for SPI) and do or cause to be done
all such things as shall in the opinion of SPHUSA be necessary or proper (a) to
assure that the rights and obligations of SPI under such contracts, agreements,
permits, franchises and claims shall be preserved for the benefit of SPHUSA and
(b) to facilitate receipt of the consideration to be received by SPHUSA in and
under every such contract, agreement, permit, franchise and claim, which
consideration SPI shall hold for the benefit of, and upon request of SPHUSA
shall deliver to, SPHUSA.
5. Costs, Expenses and Taxes. Except as otherwise provided in this
Agreement, SPI will pay all expenses incurred in connection with this Agreement
and the transactions contemplated hereby, including (a) all accounting, legal
and appraisal fees and (b) all personal and real property transfer taxes.
6. Representations and Warranties. SPI expressly disclaims any
representations or warranties as to the condition or status (financial or
otherwise) of the Transferred Assets or SPI's right, title or interest in or to
the Transferred Assets.
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7. Indemnification by SPHUSA. SPHUSA hereby agrees to reimburse,
indemnify, defend, save and hold harmless SPI and its officers, directors,
employees and agents (each a "SPHUSA Indemnified Person"), from and against any
and all claims, demands, damages, liabilities, losses, costs, expenses,
assessments, settlement payments and judgments of any nature whatsoever
(including, without limitation, incidental, indirect, special or consequential
damages, reasonable attorneys' fees and other costs and expenses incident to any
actual or threatened claim, suit, action or proceeding), arising before, on or
after the date hereof suffered, sustained, incurred or required to be paid by
such SPHUSA Indemnified Person because of or that result from, relate to or
arise out of the Assumed Liabilities.
8. Indemnification by SPI. SPI hereby agrees to reimburse, indemnify,
defend, save and hold harmless SPHUSA and its affiliates (excluding SPI and its
subsidiaries) and their respective officers, directors, employees and agents
(each a "SPI Indemnified Person") from and against against any and all claims,
demands, damages, liabilities, losses, costs, expenses, assessments, settlement
payments and judgments of any nature whatsoever (including, without limitation,
incidental, indirect, special or consequential damages, reasonable attorneys'
fees and other costs and expenses incident to any actual or threatened claim,
suit, action or proceeding), arising before, on or after the date hereof
suffered, sustained, incurred or required to be paid by such SPI Indemnified
Person because of or that result from, relate to or arise out of the businesses
or operations of the LOG.
9. Effective Time. The transfer of the Transferred Assets and
assumption of the Assumed Liabilities hereunder shall be effective as of the
close of business of the LOG on August 29, 1997.
10. Successors and Assigns; Assignment. This Agreement and the rights
and obligations of the parties hereunder shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.
11. Governing Law. This Agreement shall be governed by and construed and
enforced in all respects, whether as to validity, construction, capacity,
performance or otherwise, in accordance with the internal laws of the State of
Delaware applicable to contracts made and fully performed therein by parties
domiciled therein, without regard to the conflicts of laws provisions thereof,
except to the extent that the parties' respective rights and obligations are
subject to mandatory local, state and federal laws or regulations.
12. Headings; Interpretation. The headings preceding the test of the
sections and subsections and any table of contents of this Agreement are used
solely for convenience of reference by the parties hereto and shall not
constitute a part of this Agreement, nor shall they be given any legal effect or
otherwise affect the interpretation of this Agreement. Any rule of law or any
legal decision that would require interpretation of any claimed ambiguities in
this Agreement against the party that drafted it has no application and is
expressly waived by the parties hereto.
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13. Amendment. This Agreement shall not be modified in any manner other
than in a writing, signed by each of the parties hereto. No course of dealing
between the parties shall be effective to amend or waive any provision of this
Agreement.
14. Waiver. The terms and provisions of this Agreement shall not be
waived at any time other than in a writing, signed by the party entitled to the
benefit thereof. The failure of any party hereto at any time to require
performance of any term or provision of this Agreement shall not affect such
party's right at a later time to enforce such term or provision. No consent to
or waiver of any breach of a term or provision of this Agreement by any party
hereto shall be deemed or construed to be a consent to or waiver of any other
breach. All rights and remedies reserved to any party hereto shall be cumulative
and shall not be in limitation of any other right or remedy which such party may
have at law or in equity.
15. Entire Agreement. This Agreement and the schedules and exhibits
hereto, each of which is hereby incorporated in this Agreement, contain all of
the representations, warranties, covenants, agreements, promises, conditions,
undertakings and inducements among the parties hereto relating to the subject
matter hereof and replaces and supersedes all prior and contemporaneous
representations, warranties, covenants, agreements, promises, conditions,
undertakings and inducements, whether express or implied, oral or written, among
the parties hereto with respect thereto.
16. Severability. Each term and provision of this Agreement shall be
construed as separable and divisible from every other term and provision and the
invalidity or unenforceability of any one term or provision shall not limit the
validity and enforceability, in whole or in part, of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of this
Agreement a provision as similar in terms to such invalid or unenforceable term
or provision as may be valid and enforceable.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
or caused this Agreement to be executed by its duly authorized representatives
as of the day and year first above written.
SPECTRA-PHYSICS, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President
SPECTRA-PHYSICS HOLDINGS
USA, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Treasurer
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