EXECUTION COPY
EXHIBIT 2(b)
STOCK PURCHASE AGREEMENT
between
CISCO SYSTEMS, INC.
and
CORNING INCORPORATED
DATED AS OF DECEMBER 8, 2000
TABLE OF CONTENTS
PAGE
----
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 Sale and Purchase of Shares.......................................2
ARTICLE II
PURCHASE CONSIDERATION
2.1 Amount and Payment of Purchase Price..............................2
ARTICLE III
CLOSING AND TERMINATION
3.1 Closing Date......................................................2
3.2 Termination of Agreement..........................................3
3.3 Procedure Upon Termination........................................3
3.4 Effect of Termination.............................................3
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
4.1 Organization and Good Standing....................................3
4.2 Authorization of Agreement........................................3
4.3 Capitalization....................................................4
4.4 Conflicts; Consents of Third Parties..............................4
4.5 Ownership and Transfer of Shares..................................4
4.6 Litigation........................................................5
4.7 Brokers'Fees.................................................... .5
4.8 HSR Representation................................................5
4.9 Investment Representation, Transfer Restrictions..................5
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
5.1 Organization and Good Standing....................................6
5.2 Authorization of Agreement........................................6
5.3 Conflicts; Consents of Third Parties..............................6
5.4 Investment Intention..............................................7
5.5 Brokers' Fees.....................................................7
5.6 Access to Information.............................................7
5.7 SEC Documents; Financial Statements...............................7
ARTICLE VI
CLOSING CONDITIONS
6.1 Conditions to the Obligations of the Purchaser....................8
6.2 Conditions to the Obligations of the Seller.......................9
ARTICLE VII
COVENANTS
7.1 Confidentiality...................................................10
7.2 Filings with Governmental Bodies..................................11
7.3 No Solicitation...................................................11
7.4 Commercially Reasonable Efforts...................................11
7.5 Lock-Up Period....................................................12
7.6 Legend............................................................12
7.7 Satisfaction of Co-Sale Rights....................................12
ARTICLE VIII
INDEMNIFICATION
ARTICLE IX
MISCELLANEOUS
9.1 Certain Definitions...............................................15
9.2 Public Announcements..............................................19
9.3 Payment of Sales, Use or Similar Taxes............................19
9.4 Expenses..........................................................20
9.5 Survival of Representations and Warranties........................20
9.6 Further Assurances................................................20
9.7 Entire Agreement; Amendments and Waivers; Exclusive Remedies......20
9.8 Governing Law; Submission to Jurisdiction; Consent to Service.....21
9.9 Table of Contents and Headings....................................21
9.10 Notices...........................................................22
9.11 Severability .....................................................22
9.12 Binding Effect; Assignment .......................................23
9.13 Specific Performance .............................................23
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EXHIBITS TO STOCK PURCHASE AGREEMENT
EXHIBIT SECTION
------- -------
Exhibit A Purchaser Registration Rights Agreement Recitals
Exhibit B Certificate of Satisfaction of Purchaser Conditions 6.1(a)(iii)
Exhibit C Certificate of Satisfaction of Seller Conditions 6.2(a)(ii)
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INDEX OF DEFINITIONS
DEFINED TERM PAGE
ACQUISITION TRANSACTION..............................................11, 15
AFFILIATE............................................................15, 23
Affiliates...........................................................11, 13
AGREEMENT.............................................................1, 15
Applicable Percentage.............................................1, 13, 15
BASKET...............................................................13, 15
BUSINESS DAY.............................................................15
Business Days..........................................................2, 9
By-Laws...............................................................4, 15
Certificate of Incorporation..........................................4, 15
Cisco Supply Agreement...............................................14, 15
CLAIMS...............................................................14, 15
Closing.......................................2, 3, 5, 8, 9, 14, 15, 16, 20
Closing Date...................2, 3, 4, 6, 8, 9, 10, 12, 13, 14, 15, 16, 20
CODE.....................................................................16
COMPANY........................1, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16
COMPANY COMMON STOCK........................................1, 4, 8, 10, 16
Company's.................................................................7
Competition Laws....................................4, 7, 9, 10, 11, 16, 20
Confidential Material............................................10, 11, 16
Confidentiality Agreement............................................11, 16
Contract..............................................................9, 16
Co-Sale Rights....................................................1, 12, 16
Environmental and Safety Laws........................................13, 16
Exchange Act..........................................................7, 16
Governmental Body........................3, 4, 6, 9, 10, 11, 12, 16, 17, 19
HSR Act...................................................9, 10, 11, 16, 20
Law.....................................................4, 6, 9, 12, 17, 21
Laws.................................................2, 4, 5, 6, 11, 16, 20
LIEN.....................................................................17
Liens...............................................................2, 4, 5
Lock-Up Period.......................................................12, 17
Losses....................................................1, 13, 15, 17, 21
MAJORITY PURCHASE AGREEMENT...........................................1, 17
Majority Representations and Warranties...........................1, 13, 15
MAJORITY SELLERS...........................1, 8, 10, 11, 12, 13, 15, 17, 20
MAJORITY SELLERS' KNOWLEDGE..............................................17
MAJORITY TRANSACTION AGREEMENTS....................................1, 8, 17
NYSE..................................................................7, 17
Order.....................................................3, 4, 5, 6, 9, 17
Orders...................................................................16
OTI..............................5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18
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OTNL..............................................................1, 17, 18
PARENT......................................1, 8, 9, 10, 11, 13, 15, 17, 18
PCS.......................................................1, 15, 16, 17, 18
Permits..............................................................11, 17
Person...................................................11, 15, 17, 18, 19
Persons..............................................................19, 22
Purchase Price..............................................2, 8, 9, 13, 18
PURCHASER.........................1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, 16, 18, 19, 20, 23, 22, 23
Purchaser Common Stock................................2, 5, 6, 7, 9, 12, 18
Purchaser Financial Statements........................................7, 18
Purchaser Material Adverse Effect.....................................6, 18
Purchaser Registration Rights Agreement.........................2, 7, 9, 18
Qualification.........................................................2, 18
Registration Rights Agreement.........................................5, 16
SEC...................................................................7, 18
SEC Documents.........................................................7, 18
Securities Act.....................................................5, 7, 18
SELLER........1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,
19, 20, 21, 22, 23
Seller Material Adverse Effect........................................9, 18
SHARES......................................1, 2, 3, 4, 7, 8, 9, 10, 18, 23
Stockholders' Agreement................................1, 4, 12, 16, 18, 21
Subsidiaries.....................................................12, 18, 19
Tax..........................................................13, 14, 15, 19
Taxes....................................................13, 14, 15, 19, 20
Transaction Agreements...1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 19, 20, 21
US GAAP...............................................................7, 19
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of December 8, 2000 (the
"AGREEMENT"), between Cisco Systems, Inc., a corporation organized and existing
under the laws of the State of California (the "SELLER") and Corning
Incorporated, a corporation organized and existing under the laws of the State
of New York (the "PURCHASER").
W I T N E S S E T H:
WHEREAS, the Seller owns 500,000 shares of Series A Convertible
Preferred Stock, $0.01 par value per share, (the "SHARES") of Optical
Technologies USA Corp., a Delaware corporation (the "COMPANY"), which shares
constitute all of the issued and outstanding shares of preferred stock of the
Company; and
WHEREAS, the Seller is a party to that certain Stockholders'
Agreement, dated as of August 2, 2000 (the "STOCKHOLDERS' AGREEMENT"), among
Pirelli Cavi e Sistemi S.p.A., a corporation organized and existing under the
laws of the Republic of Italy ("PCS"), Optical Technologies The Netherlands
B.V., a corporation organized and existing under the laws of the Netherlands
("OTNL"), Pirelli S.p.A., a corporation organized and existing under the laws of
the Republic of Italy and the direct or indirect parent of PCS and OTNL
("PARENT"), and Seller; and
WHEREAS, the Purchaser is a party to that certain Stock Purchase
Agreement, dated as of September 26, 2000 (the "MAJORITY PURCHASE AGREEMENT"),
among PCS and OTNL (collectively, the "MAJORITY SELLERS"), Parent and the
Purchaser, pursuant to which the Purchaser has agreed to purchase from the
Majority Sellers all of the issued and outstanding shares of common stock of the
Company (the "COMPANY COMMON STOCK"); and
WHEREAS, in accordance with Section 3.2 of the Stockholders'
Agreement, the Seller has exercised its Co-Sale Rights with respect to the
Shares; and
WHEREAS, the Seller and the Purchaser desire to document the terms
upon which the Seller shall sell to the Purchaser, and the Purchaser shall
purchase from the Seller, the Shares and to modify such terms from the terms
contemplated by the Stockholders' Agreement; and
WHEREAS, the Seller desires to sell to Purchaser, and Purchaser
desires to purchase from the Seller, the Shares for the consideration and upon
the terms and conditions hereinafter set forth; and
WHEREAS, the Majority Sellers and the Parent have made certain
representations and warranties (the "MAJORITY REPRESENTATIONS AND WARRANTIES"),
under the Majority Purchase Agreement and the Transaction Agreements as defined
in the Majority Purchase Agreement (the "MAJORITY TRANSACTION AGREEMENTS"); and
WHEREAS, Seller agrees pursuant to Article 8 hereof to indemnify and
hold harmless the Purchaser for Seller's Applicable Percentage of Losses which
may be suffered by the Purchaser through any breach by any one or more of the
Majority Sellers or the Parent of any of the Majority Representations and
Warranties; and
WHEREAS, at the Closing Date, the Purchaser and the Seller shall
enter into a registration rights agreement pursuant to which Purchaser agrees to
register the shares of its common stock issuable in connection with this
Agreement in the form attached hereto as Exhibit A (the "Purchaser Registration
Rights Agreement"); and
WHEREAS, certain terms used in this Agreement are defined in
Section 9.1;
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements hereinafter contained, the parties hereby agree as
follows:
ARTICLE I
SALE AND PURCHASE OF SHARES
1.1 SALE AND PURCHASE OF SHARES. At the closing of the sale and purchase
of the Shares (the "Closing"), upon the terms and subject to the conditions
contained herein, the Seller shall sell, assign, transfer, convey and deliver
free and clear of all Liens (other than limitations on resale under applicable
securities Laws) to the Purchaser, and the Purchaser shall purchase from the
Seller, the Shares.
ARTICLE II..
PURCHASE CONSIDERATION
2.1 AMOUNT AND PAYMENT OF PURCHASE PRICE. Subject to the terms and
conditions contained herein, in consideration for the sale and delivery of the
Shares, the Purchaser shall deliver to the Seller the following (such
consideration, the "Purchase Price"):
(a) At the Closing, that number of shares of unregistered common
stock, par value $.50 per share ("Purchaser Common Stock"), of the Purchaser
equal to $370,000,000 divided by the Purchaser Share Price; and
(b) Upon Qualification, that number of shares of Purchaser Common
Stock equal to $20,000,000 divided by the Purchaser Share Price. If
Qualification occurs prior to the Closing Date, such Purchaser Common Stock
shall be issued at that the Closing. If Qualification occurs subsequent to
the Closing Date but on or before September 30, 2001, such Purchaser Common
Stock shall be issued within three Business Days thereafter.
The Purchaser Share Price shall be $71.25 per share.
ARTICLE III.
CLOSING AND TERMINATION
3.1 CLOSING DATE. The Closing shall take place at the offices of Xxxxx
Xxxxxxx LLP, located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 immediately
after the closing of the transactions contemplated by the Majority Stock
Purchase Agreement, provided the conditions to closing set forth in Section 6
hereof (other than those to be satisfied at the Closing,
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which shall be satisfied or waived at the Closing) have been satisfied or waived
by the party entitled to waive such condition, or on such other date after such
satisfaction or waiver and at such other time and place upon which the Seller
and the Purchaser shall agree (which time and place are designated as the
"Closing Date").
3.2 TERMINATION OF AGREEMENT. This Agreement may be terminated prior
to the Closing as follows:
(a) by mutual written consent of the Seller and the Purchaser;
(b) by the Seller or the Purchaser if there shall be in effect a
final non-appealable Order of a Governmental Body of competent jurisdiction
enjoining or otherwise prohibiting the consummation of the transactions
contemplated hereby, it being agreed that the parties hereto shall promptly
appeal any adverse determination that is appealable (and pursue such appeal
with reasonable diligence); or
(c) by the Seller or the Purchaser if the Majority Purchase
Agreement shall have been terminated.
3.3 PROCEDURE UPON TERMINATION. In the event of termination by the
Purchaser or the Seller, or both, pursuant to Section 3.2 hereof, written notice
thereof shall forthwith be given to the other party, and this Agreement shall
terminate immediately upon receipt of such notice and the purchase of the Shares
hereunder shall be abandoned, without further action by the Purchaser or the
Seller.
3.4 EFFECT OF TERMINATION. In the event that this Agreement is validly
terminated as provided herein, then each of the parties shall be relieved of its
duties and obligations arising under this Agreement after the date of such
termination, and such termination shall be without liability to the Purchaser or
the Seller; provided, however, that the obligations of the parties set forth in
Sections 7.1 and 9.4 hereof shall survive any such termination and shall be
enforceable hereunder; and provided further, however, that nothing in this
Section 3.4 shall relieve the Purchaser or the Seller of any liability for a
breach of this Agreement prior to such termination.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser that:
4.1 ORGANIZATION AND GOOD STANDING. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California.
4.2 AUTHORIZATION OF AGREEMENT. The Seller has all requisite power,
authority and legal capacity to execute and deliver this Agreement and each
other agreement, document, or instrument or certificate contemplated by this
Agreement or to be executed by the Seller in connection with the consummation of
the transactions contemplated by this Agreement (this Agreement and such other
agreements, documents, instruments and certificates, collectively, the
"Transaction Agreements"), and to consummate the transactions contemplated
hereby and
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thereby. The execution and delivery of this Agreement and each of the
Transaction Agreements and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate action
on the part of the Seller and no other corporate or shareholder proceedings on
the part of Seller are necessary to authorize this Agreement or any of the other
Transaction Agreements or to consummate the transactions contemplated hereby and
thereby. This Agreement has been and each of the other Transaction Agreements
have been, or will have been as of the Closing Date, duly and validly executed
and delivered by the Seller, and (assuming the due authorization, execution and
delivery by the other parties hereto and thereto) this Agreement constitutes,
and each of the other Transaction Agreements when so executed and delivered will
constitute, legal, valid and binding obligations of the Seller, enforceable
against the Seller in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization and similar Laws affecting
creditors' rights and subject to the enforceability of equitable remedies.
4.3 CAPITALIZATION. 500,000 shares designated as Series A Convertible
Preferred Stock, $0.01 par value per share, were issued to the Seller and are
outstanding (which Shares represent a ten percent (10%) equity interest in the
Company on a fully-diluted basis). All of the Shares were duly authorized for
issuance and are validly issued, fully paid and non-assessable. The Shares being
acquired by the Purchaser hereunder constitute all of the issued and outstanding
shares of Series A Convertible Preferred Stock or any other form of equity of
the Company other than the Company Common Stock.
4.4 CONFLICTS; CONSENTS OF THIRD PARTIES. (a) None of the execution and
delivery by the Seller of this Agreement and the Transaction Agreements, the
consummation of the transactions contemplated hereby or thereby, or compliance
by the Seller with any of the provisions hereof or thereof will (i) conflict
with, or result in the breach of, any provision of the Certificate of
Incorporation, the By-Laws or any organizational document of the Seller; (ii)
conflict with, require the consent of, violate, result in the breach or
termination of, constitute a default or give rise to any right of termination or
acceleration or the right to increase the obligations or otherwise modify the
terms thereof under any material note, bond, mortgage, indenture, license,
agreement or other instrument, commitment or obligation to which the Seller is a
party or by which Seller or its properties or assets is bound; (iii) violate any
Law, Order or Permit by which the Seller is bound (except, in the case of clause
(iii), for such violations as would not, individually or in the aggregate, have
a Seller Material Adverse Effect).
(b) Except for filings under the Competition Laws, no consent,
waiver, approval, Order, Permit or authorization of, or declaration or filing
with, or notification to, any Governmental Body is required on the part of the
Seller in connection with the execution and delivery of this Agreement or the
Transaction Agreements or the compliance or performance by the Seller with any
of the provisions hereof or thereof.
4.5 OWNERSHIP AND TRANSFER OF SHARES. The Seller is the record and
beneficial owner of the Shares, free and clear of any and all Liens (other than
limitations on resale under applicable United States securities Laws and
restrictions on future sales imposed under the Stockholders' Agreement). The
Seller has the corporate power and authority to sell, transfer, assign and
deliver the Shares as provided in this Agreement, and such delivery will convey
to the Purchaser good and marketable title to such Shares, free and clear of any
and all Liens (other
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than limitations on resale under applicable United States securities Laws.
Immediately after the Closing, the Purchaser will own all of the issued and
outstanding Series A Convertible Preferred Stock of the Company, free and clear
of any and all Liens (other than limitations on resale under applicable United
States securities Laws).
4.6 LITIGATION. There is no action, suit, proceeding, claim, arbitration
or investigation pending or, to the Seller's Knowledge, threatened, against the
Seller or any of its properties or assets, against any employee, officer or
director (in each case, solely brought in their capacity as such) of the Seller,
or that questions the validity of this Agreement or any of the other Transaction
Agreements or the right of the Seller to enter into this Agreement or the other
Transaction Agreements. There is no Order pending against the Seller or any of
its properties or assets.
4.7 BROKERS' FEES. Neither the Company, OTI nor the Purchaser, as a result
of any action taken by the Seller, has incurred or will incur, directly or
indirectly, any liability for brokerage or finders' fees or agents' commissions
or investment bankers' fees or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
4.8 HSR REPRESENTATION. As a result of acquiring the Purchaser Common
Stock, Seller will hold less than ten (10) percent of the outstanding voting
securities of Purchaser. Seller is acquiring the Purchaser Common Stock "solely
for the purpose of investment" within the meaning of the rules, regulations,
statements and interpretations under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, 16 CFR Sections 801.1(i)(1) and 802.9, and has no
intention of participating in the formulation, determination, or direction of
the basic business decisions of Purchaser.
4.9 INVESTMENT REPRESENTATION, TRANSFER RESTRICTIONS.
(a) The Seller is acquiring the shares of Purchaser Common Stock
constituting the consideration for its own account and not with a view to, or
for sale in connection with, any distribution thereof. The Seller understands
that the shares of Purchaser Common Stock are being offered in a transaction not
involving any public offering, within the meaning of the Securities Act, that
the shares of Purchaser Common Stock have not been registered and, until
registered under the Securities Act pursuant to the terms of the Registration
Rights Agreement and sold pursuant to a prospectus under such registration, the
shares of Purchaser Common Stock may be offered, resold, pledged or otherwise
transferred only in accordance with exemptions from the registration
requirements of the Securities Act and any applicable securities laws of any
applicable jurisdiction and the restrictions set forth in the legends on the
certificates evidencing the shares of Purchaser Common Stock.
(b) In the normal course of its business or its investing activities,
the Seller invests in or purchases securities similar to the shares of Purchaser
Common Stock, and it has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of acquiring the
shares of Purchaser Common Stock. The Seller is an "accredited investor" within
the meaning of Rule 501(a) of the Securities Act. The Seller is aware that it
may be required to bear the economic risk of an investment in the shares of
Purchaser Common Stock for an indefinite period of time and it is able to bear
such risk.
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(c) The Seller has been given access to all documents, records and
other information that the Seller has requested and has had adequate opportunity
to ask questions of, and receive answers from, the Purchaser's officers,
employees, agents, accountants and representatives concerning the Purchaser's
business, operations, financial condition, assets, liabilities, and all other
matters that the Seller deemed relevant to its investment in the Purchaser
Common Stock; provided, however, that none of the foregoing shall alter,
diminish, obviate or impair the Seller's right to rely upon all of the
representations and warranties of the Purchaser contained in this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser hereby represents and warrants to the Seller that:
5.1 ORGANIZATION AND GOOD STANDING. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York.
5.2 AUTHORIZATION OF AGREEMENT. The Purchaser has all requisite power,
authority and legal capacity to execute and deliver this Agreement and each
other agreement, document, or instrument or certificate contemplated by this
Agreement or to be executed by the Purchaser in connection with the consummation
of the transactions contemplated by this Agreement and each of the other
Transaction Agreements, and to consummate the transactions contemplated hereby
and thereby. This Agreement and each of the other Transaction Agreements has
been, or will have been as of the Closing Date, duly and validly executed and
delivered by the Purchaser, and (assuming the due authorization, execution and
delivery by the other parties hereto and thereto) this Agreement constitutes,
and each of the other Transaction Agreements when so executed and delivered will
constitute, legal, valid and binding obligations of the Purchaser, enforceable
against the Purchaser in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization and similar Laws affecting
creditors' rights and subject to the enforceability of equitable remedies.
5.3 CONFLICTS; CONSENTS OF THIRD PARTIES.
(a) Neither the execution and delivery by the Purchaser of this
Agreement and of the Transaction Agreements, nor the compliance by the Purchaser
with any of the provisions hereof or thereof will (i) conflict with, or result
in the breach of, any provision of the certificate of incorporation or by-laws
of the Purchaser, (ii) conflict with, require the consent of, violate, result in
the breach of, or constitute a default under any material note, bond, mortgage,
indenture, license, agreement or other instrument or obligation to which the
Purchaser is a party or by which the Purchaser or its properties or assets are
bound to, or (iii) to the Purchaser's knowledge, violate any Law or Order by
which the Purchaser is bound, except, in the case of clause (ii) or clause
(iii), for such violations, breaches or defaults as would not, individually or
in the aggregate, have a Purchaser Material Adverse Effect.
(b) No consent, waiver, approval, Order, Permit or authorization of, or
declaration or filing with, or notification to, any Governmental Body is
required on the part of
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the Purchaser in connection with the execution and delivery of this Agreement or
the Transaction Agreements or the compliance by Purchaser with any of the
provisions hereof or thereof, except for (i) the filing of any required report
with the SEC and the NYSE, (ii) the registration of the shares of Purchaser
Common Stock as contemplated by the Purchaser Registration Rights Agreement, and
(iii) such other filings as may be required under applicable securities or
Competition Laws.
5.4 INVESTMENT INTENTION. The Purchaser is acquiring the Shares for its
own account for investment purposes only and not with a present view to the
distribution (as such term is used in Section 2(11) of the Securities Act)
thereof. The Purchaser understands that the Shares have not been registered
under the Securities Act and cannot be sold unless subsequently registered under
the Securities Act or an exemption from such registration is available.
5.5 BROKERS' FEES. None of the Company, OTI or the Seller, as a result of
any action taken by the Purchaser, has incurred or will incur, directly or
indirectly, any liability for brokerage or finders' fees or agents' commissions
or investment bankers' fees or any similar charges in connection with this
Agreement or any transaction contemplated hereby.
5.6 ACCESS TO INFORMATION. The Purchaser has been given access to all
documents, records and other information that the Purchaser has requested and
has had adequate opportunity to ask questions of, and receive answers from, the
Company's officers, employees, agents, accountants and representatives
concerning the Company's business, operations, financial condition, assets,
liabilities, and all other matters that it deemed relevant to its investment in
the Shares; provided, however, that none of the foregoing shall alter, diminish,
obviate or impair the Purchaser's right to rely upon all of the representations
and warranties of the Seller contained in this Agreement.
5.7 SEC DOCUMENTS; FINANCIAL STATEMENTS. The Purchaser has made available
to the Seller each statement, report, registration statement (with the
prospectus in the form filed pursuant to Rule 424(b) of the Securities Act),
definitive proxy statement, and other filings filed with the SEC by the
Purchaser since January 1, 2000 (collectively, the "SEC Documents"). As of their
respective filing dates the SEC Documents complied as to form in all material
respects with the requirements of the Exchange Act and the Securities Act, and
none of the SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances in which they
were made, not misleading. The financial statements of the Purchaser, including
the notes thereto, included or incorporated by reference in the SEC Documents
(the "Purchaser Financial Statements") were complete and correct in all material
respects as of their respective dates, complied as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto as of their respective dates,
and have been prepared in accordance with US GAAP applied on a basis consistent
throughout the periods indicated and consistent with each other (except as may
be indicated in the notes thereto or, in the case of unaudited statements
included in Quarterly Reports on Form 10-Q, as permitted by Form 10-Q of the
SEC). The Purchaser Financial Statements fairly present the consolidated
financial condition and operating results of the Purchaser and its subsidiaries
at the dates and during the periods indicated therein (subject, in the case of
unaudited statements, to normal, recurring year-end adjustments).
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ARTICLE VI
CLOSING CONDITIONS
6.1 CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The obligation of the
Purchaser to purchase the Shares at Closing shall be subject to the receipt by
the Seller of the Purchase Price and the satisfaction (or waiver by the
Purchaser) of each of the following conditions at or before Closing:
(a) DELIVERY OF DOCUMENTS. The Seller shall have delivered to the
Purchaser, in form and substance reasonably satisfactory to the Purchaser,
the following:
(i) stock certificates representing the Shares, duly endorsed in
blank or accompanied by duly executed stock transfer powers;
(ii) written resignations of the directors of the Company and OTI,
appointed thereto as designees of Seller, substantially in the form of
Exhibit D to the Majority Purchase Agreement;
(iii) a certificate, substantially in the form of Exhibit C, of an
officer of the Seller, dated the Closing Date, certifying as to the
satisfaction of the conditions specified in this Section 6.1; and
(iv) a certificate of the secretary of the Seller dated the Closing
Date certifying as to the accuracy of: (a) the Seller's organizational
documents; and (b) excerpts of the resolutions of the board of directors
of the Seller authorizing the execution, delivery and performance of this
Agreement and each of other Transaction Agreements and the consummation of
the transactions contemplated hereby and thereby.
(b) PURCHASE OF COMPANY COMMON STOCK. The Purchaser shall have
purchased all of the Company Common Stock from the Majority Sellers as
contemplated by the Majority Purchase Agreement.
(c) COMPLIANCE WITH AGREEMENTS. The Seller, the Majority Sellers,
Parent, the Company and OTI shall have performed and complied in all material
respects with all agreements, covenants and conditions contained herein and in
each of the other Transaction Agreements, the Majority Purchase Agreement and
the Majority Transaction Agreements that are required by the terms hereof or
thereof to be performed or complied with by the Seller, the Majority Sellers,
Parent, the Company or OTI on or before the Closing Date.
(d) DELIVERY OF OTHER TRANSACTION AGREEMENTS. Simultaneously with or
prior to the sale to the Purchaser of the Shares hereunder, the Seller shall
have executed and delivered to the Purchaser each of the other Transaction
Agreements to which it is a party.
(e) REPRESENTATIONS AND WARRANTIES. All of the representations and
warranties of the Seller contained herein or in any of the other Transaction
Agreements shall be true and correct in all material respects (except for
representations and warranties that are qualified by the Seller's or the
Majority Sellers' Knowledge or materiality, which representations and warranties
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as so qualified shall be true in all respects) on and as of the date hereof and
the Closing Date, except those representations and warranties of the Seller that
speak of a certain date, which representations and warranties shall have been
true and correct in all material respects as of such date both before and after
giving effect to the transactions contemplated hereby and by the other
Transaction Agreements; provided, however, that if all other conditions set
forth in this Article VI are satisfied, Purchaser agrees to consummate the
transactions described herein even if the representations and warranties of the
Seller contained herein are untrue or incorrect in any material respect as of
the Closing Date, unless the failure of the representations and warranties to be
true as of the Closing Date would reasonably be expected to cause a Seller
Material Adverse Effect. The Seller acknowledges that the provisions of this
Section 6.1(e) shall not alter, diminish, obviate or impair any indemnification
rights that may be available to the Purchaser pursuant to Article 8 hereof.
(f) AUTHORIZATIONS. The Seller shall have sent or made all material
registrations, declarations and filings as may be required pursuant to any Law,
including the HSR Act or Competition Laws of Germany or, if applicable, the
European Commission or pursuant to any other Contract or Order material to the
business of the Company or OTI or to which the Company or OTI is a party or is
subject, in connection with the transactions to be consummated on or prior to
the Closing Date as contemplated by this Agreement or any other Transaction
Agreement.
(g) HSR ACT AND OTHER COMPETITION LAWS; NO MATERIAL JUDGMENT OR ORDER.
The waiting period, if any, under the HSR Act shall have terminated, any
approvals required by the Competition Laws of Germany or such other Member
States of the European Union identified jointly by the Purchaser and Parent
within eight Business Days of the date hereof, or if applicable, the European
Commission, applicable to the transactions contemplated hereby shall have been
obtained, and on the Closing Date there shall not be any judgment or order of a
court of competent jurisdiction or any ruling of any Governmental Body that
would prohibit the sale of the Shares hereunder.
(h) REGISTRATION RIGHTS. Purchaser and Seller shall have entered into
the Purchaser Registration Rights Agreement.
6.2 CONDITIONS TO THE OBLIGATIONS OF THE SELLER. The obligations of the
Seller to sell the Shares to the Purchaser at the Closing shall be subject to
the receipt by the Seller of the Purchase Price and the satisfaction (or waiver
by the Seller) of each of the following conditions at or before the Closing:
(a) DELIVERY OF DOCUMENTS. The Purchaser shall have delivered to the
Seller, in form and substance reasonably satisfactory to the Seller, the
following:
(i) certificates registered in the name of the Seller evidencing
such number of shares of Purchaser Common Stock required to be delivered
at the Closing.
(ii) a certificate of the Secretary of the Purchaser, dated the
Closing Date, certifying as to the accuracy of resolutions of the Board of
Directors of the Purchaser authorizing the execution, delivery and
performance of this Agreement and the
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other Transaction Agreements and the consummation of the transactions
contemplated hereby and thereby, or, if no such resolutions are
required, a statement to that effect and describing the actual
authorization; and
(iii) a certificate on behalf of the Purchaser, substantially
in the form of Exhibit B, of an officer of the Purchaser, dated the
Closing Date, certifying as to the satisfaction of the conditions
specified in this Section 6.2.
(b) COMPLIANCE WITH AGREEMENTS. The Purchaser shall have
performed and complied in all material respects with all agreements,
covenants and conditions contained herein and in each of the other
Transaction Agreements that are required by the terms hereof or thereof to be
performed or complied with by the Purchaser on or before the Closing Date.
(c) REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties of the Purchaser contained herein or in any of the other
Transaction Agreements shall be true and correct in all material respects on
and as of the Closing Date, except those representations and warranties of
the Purchaser that speak as of a certain date, which representations and
warranties shall have been true and correct in all material respects as of
such date both before and after giving effect to the transactions
contemplated hereby and by the other Transaction Agreements.
(d) PURCHASE OF COMMON STOCK. The Purchaser shall have purchased
all of the Company Common Stock from the Majority Sellers as contemplated by
the Majority Purchase Agreement.
(e) HSR ACT AND OTHER COMPETITION LAWS. The waiting period, if
any, under the HSR Act shall have terminated, any approvals required by the
Competition Laws of Germany or such other Member States of the European Union
identified jointly by the Purchaser and Parent pursuant to the Majority
Purchase Agreement or, if applicable, the European Commission, applicable to
the transactions contemplated hereby shall have been obtained, and on the
Closing Date there shall not be any judgment or order of a court of competent
jurisdiction or any ruling of any Governmental Body that would prohibit the
sale of the Shares hereunder.
ARTICLE VII
COVENANTS
7.1 CONFIDENTIALITY.
(a) The Seller shall treat and instruct all of its employees,
representatives, agents, brokers and affiliates to treat, all Confidential
Material confidentially, and not disclose such Confidential Material except in
accordance herewith or use such Confidential Material other than for the benefit
of the Company or OTI; provided, that (i) any Confidential Material may be
disclosed to such party's agents who require access to such information and are
directed by such party to treat such Confidential Material confidentially; (ii)
Confidential Material may be disclosed without liability hereunder to the extent
required by law or by the order or decree of any court or other governmental
authority; provided, however, that the party legally compelled to disclose the
Confidential Material shall provide the Purchaser with prompt notice of that
fact so that the Purchaser may attempt to obtain a protective order or other
appropriate relief.
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(b) For purposes of this section, the term "Confidential Material"
means all information relating to the Company and OTI and their respective
operations, except to the extent that such information shall have become public
knowledge other than by breach of this Agreement, the Majority Purchase
Agreement or the Confidentiality Agreement by the Seller, the Majority Sellers,
Parent, the Company or OTI.
7.2 FILINGS WITH GOVERNMENTAL BODIES. As promptly as practicable after the
execution of this Agreement, each party shall, in cooperation with the other,
file or cause to be filed any reports, notifications or other information that
may be required under the HSR Act and other Competition Laws, shall furnish or
cause to be furnished to the other all such information in its possession as may
be reasonably necessary for the completion of the reports, notifications or
submissions to be filed by the other, and shall use commercially reasonable
efforts to respond as promptly as practicable to all inquiries received from the
appropriate Governmental Bodies for additional information or documentation.
Each party hereto agrees to use its best efforts to comply and cause its
Affiliates to comply in a full and timely manner with any request from a
Governmental Body for additional information relating to the HSR Act and other
Competition Laws. Subject to Section 7.4, the parties shall use their
respective, commercially reasonable efforts to resolve such objections, if any,
as may be asserted with respect to the transactions contemplated hereby under
the Laws of any Governmental Body.
7.3 NO SOLICITATION. The Seller will not, and will use commercially
reasonable efforts to cause the Company, OTI and their respective
representatives to not, directly or indirectly, (i) discuss, negotiate,
undertake, authorize, recommend, propose or enter into, either as the proposed
surviving, merged, acquiring or acquired corporation, any transaction involving
a merger, consolidation, business combination, purchase or disposition of any
amount of the assets or capital stock or other equity interest in the Company or
OTI other than the transactions contemplated by this Agreement (an "ACQUISITION
TRANSACTION"), (ii) facilitate, encourage, solicit or initiate discussions,
negotiations or submissions of proposals or offers in respect of an Acquisition
Transaction, (iii) furnish or cause to be furnished, to any Person, any
information concerning the business, operations, properties, prospects or assets
of the Company or OTI in connection with an Acquisition Transaction, or (iv)
otherwise cooperate in any way with, or assist or participate in, facilitate or
encourage, any effort or attempt by any other Person to do or seek any of the
foregoing. The Seller will inform the Purchaser following the receipt by Parent,
the Majority Sellers, the Seller, the Company or any of their respective
representatives of any proposal or inquiry in respect of any Acquisition
Transaction.
7.4 COMMERCIALLY REASONABLE EFFORTS. Upon the terms and subject to the
conditions herein provided, each of the parties hereto agrees to use its
commercially reasonable efforts to take, or cause to be taken, all action and to
do, or cause to be done, all things necessary, proper or advisable under
applicable Laws to consummate and make effective the transactions contemplated
by this Agreement and the other Transaction Agreements, including using
commercially reasonable efforts to satisfy the conditions precedent to the
obligations of any of the parties hereto, to obtain all necessary Permits, to
effect all necessary registrations and filings and to deliver notices or
communications to employees or Governmental Bodies. Without limiting the
generality of the foregoing, each party shall take such action as the other
party shall reasonably request to cause the parties to obtain any material
Permits of Governmental Bodies and/or the expiration of applicable waiting
periods. Notwithstanding any provision to the
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contrary in this Agreement, the Purchaser shall not be required to hold
separate, and agree to sell or otherwise dispose of, assets, categories of
assets or businesses of the Purchaser, any of its Subsidiaries, the Company or
OTI (or to enter into agreements with the relevant Governmental Body giving
effect thereto). Except as required by Law, no material notice or communication
to Governmental Bodies with respect to this Agreement or the transactions
contemplated by this Agreement or any other Transaction Agreement shall be made
by Purchaser, on the one hand, and the Seller on the other hand, without the
other parties' prior written consent, which shall not be unreasonably withheld.
7.5 LOCK-UP PERIOD. The Seller agrees that, during the period commencing on
the Closing Date and ending ninety (90) days after the Closing Date (the
"Lock-Up Period"), the Seller shall not (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
to dispose of, directly or indirectly, any shares of Purchaser Common Stock or
any securities convertible into or exercisable or exchangeable for Purchaser
Common Stock, or (ii) enter into any swap or other arrangement that transfers
all or a portion of the economic consequences associated with the ownership of
any Purchaser Common Stock (regardless of whether any of the transactions
described in clause (i) or (ii) are to be settled by the delivery of Purchaser
Common Stock or such other securities, in cash or otherwise).
7.6 LEGEND. The Seller understands that the certificate representing shares
of Purchaser Common Stock will bear the following legend or one substantially
similar thereto:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY APPLICABLE STATE OR
FOREIGN SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED,
PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE ACT AND ANY APPLICABLE STATE AND FOREIGN
SECURITIES LAWS OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
RESTRICTIONS ON THE USE OF SUCH SECURITIES IN HEDGING TRANSACTIONS PURSUANT TO
THE TERMS OF AN AGREEMENT BETWEEN THE HOLDER OF SUCH SECURITIES AND THE
CORPORATION.
7.7 SATISFACTION OF CO-SALE RIGHTS. The Seller hereby agrees that this
Agreement satisfies in full the obligations of the Majority Sellers and
Purchaser, if any, under Section 3.2 of the Stockholders' Agreement and that the
transactions contemplated by the Majority Purchase Agreement may be consummated
without violation of Section 3.2 of the Stockholders' Agreement whether or not
the transactions contemplated by this Agreement are consummated.
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ARTICLE VIII
INDEMNIFICATION
8.1 The Seller shall indemnify, defend and hold harmless the Purchaser, its
Affiliates, partners, officers, employees and agents from and against the
Applicable Percentage of any and all losses, claims, liabilities, damages,
settlements with respect to any unaffiliated third party claims, judgments and
expenses relating thereto (including reasonable attorneys' fees and expenses
incurred by the indemnified party in the investigation or defense of any of the
same or in asserting, preserving or enforcing any of rights hereunder), net of
the net present value of any actual Tax benefits or insurance recoveries (less
the cost of the recovery and any increase in premium as a result of the
recovery) received by such indemnified party (collectively, "LOSSES"), (i) that
arise out of any breach by the Seller of any of its representations, warranties,
covenants or agreements contained in this Agreement or any of the other
Transaction Agreements, (ii) that arise out of any breach by any one or more of
the Majority Sellers or the Parent of any of the Majority Representations and
Warranties or any breach by any one or more of the Majority Sellers or the
Parent of any of its covenants or agreements contained in Sections 7.1, 7.2,
7.7, 7.10 or 7.14 of the Majority Purchase Agreement, (iii) that existed on, or
arise from actions or inactions of Parent, the Majority Sellers, the Company or
OTI on or prior to February 10, 2000 and not actions or inactions thereafter,
(iv) relating to violations of Environmental and Safety Laws that existed on, or
arise from actions or inactions of Parent, the Majority Sellers, the Company or
OTI after February 10, 2000 and on or prior to the Closing Date and (v) relating
to Taxes that may be imposed on or assessed against the Company, OTI or any of
the assets with respect to or arising from transactions during any taxable
period ending on or prior to the Closing Date or any taxable period beginning
before the Closing Date and ending after the Closing Date (a "STRADDLE PERIOD")
but only with respect to the portion of such Straddle Period ending at the end
of business on the Closing Date as contemplated by Section 8.7.
8.2 The Purchaser shall indemnify, defend and hold harmless the Seller, its
Affiliates, partners, officers, employees and agents from and against any Losses
that arise out of any breach by the Purchaser of any of its representations,
warranties, covenants or agreements contained in this Agreement or any of the
other Transaction Agreements.
8.3 Notwithstanding anything contained in this Agreement, no indemnifying
party shall be liable to an indemnified party unless and until the Losses
incurred by the indemnified party as the result of any breach of any
representation, warranty or covenant contained in this Agreement exceed $1
million (the "BASKET"), after which the indemnified party shall be entitled to
indemnification for all of its Losses, not just those in excess of the Basket;
PROVIDED, HOWEVER, that in no event shall the aggregate liability of any party
under this Agreement, whether for breaches of representations and warranties or
otherwise, exceed the Purchase Price. Notwithstanding any provision of this
Agreement to the contrary, in no event shall the Basket apply to Losses arising
out of or relating to (a) any breach of any of the representations and
warranties set forth in Sections 4.3, 4.5, 4.7, 4.8, 4.9 and 5.5, (b) any breach
of the Majority Representations and Warranties for which Purchaser would be
entitled to such indemnification under the Majority Purchase Agreement or (c)
fraud or intentional misrepresentations.
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8.4 An indemnified party shall give the indemnifying party prompt notice of
any third-party claim that may give rise to any indemnification obligation under
this Article VIII and the indemnifying party shall (except as set forth below)
have the right to assume and control the defense (at its expense) and settlement
of any such claim through the indemnifying party's own counsel or through other
counsel reasonably acceptable to the indemnified party; provided, however, that
no settlement shall be made without the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld, delayed or conditioned.
The indemnified party, together with any other indemnified parties, may retain
one additional counsel to represent the interests of all of such indemnified
parties at their own expense if, under applicable standards of professional
conduct, a conflict with respect to any significant issue between such
indemnified parties and the indemnifying party exists in respect of such
third-party claim. In such event, the indemnifying party shall not assume the
defense of such claim and shall also pay the reasonable fees and expenses of one
counsel selected by such indemnified parties in respect of such claim.
Notwithstanding the foregoing, without such indemnified parties' consent, the
indemnifying party will not settle any action or proceeding on terms that do not
provide such indemnified parties a full, unconditional release from all
liability with respect to such claim by each claimant or plaintiff in a form
reasonably acceptable to such indemnified parties' counsel, nor will the
indemnifying party consent to any injunctive or other non-monetary relief
affecting any indemnified party. The failure of any indemnified party to give
prompt notice of any claim shall not release, waive or otherwise affect the
indemnifying party's obligations with respect thereto except to the extent the
indemnifying party can demonstrate actual loss and prejudice as a result of such
failure. The indemnified party shall not be deemed to have been notified of any
claim by virtue of knowledge acquired on or prior to the Closing Date by a
director, officer or employee of the Company or OTI.
8.5 If any payment is made by the Seller under the terms of this Agreement
or otherwise relating to pre-Closing activities (except with respect to those
pre-Closing activities as to which Purchaser is not indemnified by the Seller
under Section 8.1 hereof), the Seller shall have no rights against the Company
or OTI or any director, officer, employee or agent thereof, unless such claim
involves bad faith on the part of such director, officer or employee, whether by
reason of contribution, indemnification, subrogation or otherwise, in respect of
any such payment, and the Seller shall take no action against the Company or OTI
with respect thereto.
8.6 The Seller hereby irrevocably releases, effective as of the Closing
Date, the Company and OTI from any and all actions or causes of action, claims,
demands, liabilities, judgments, losses, damages, injuries, costs or expenses of
every kind, that Seller may have against the Company or OTI arising at any time
on or before the Closing Date, whether known or unknown (collectively,
"CLAIMS"); provided, however, that this release does not in any way affect any
causes of actions or claims that the Seller may have against Purchaser arising
out of this Agreement, any of the other Transaction Agreements, the Cisco Supply
Agreement, or any conduct by, or events relating to, the Company or OTI
subsequent to the Closing. This release applies to Claims arising in any manner,
whether such Claims are based on any tort, contract, statutory provision or
other law or theory of liability, including negligence, gross negligence,
recklessness, willful misconduct or products liability.
8.7 TAX STRADDLE PERIODS. For purposes of determining the amount of Taxes
for or which relate to a Straddle Period, the Closing Date shall be treated as
the last day of a
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taxable period, and the portion of any such Tax that is allocable to the taxable
period that is deemed to end on and including the Closing Date: (i) in the case
of Taxes that are either (x) based upon or related to income or receipts, or (y)
imposed in connection with any sale, transfer, assignment or distribution of
property, shall be deemed equal to the amount which would be payable if the
period for which such Tax is assessed ended on and included the Closing Date,
and (ii) in the case of Taxes other than Taxes described in clause (i) hereof,
shall be computed on a per diem basis.
ARTICLE IX
MISCELLANEOUS
9.1 CERTAIN DEFINITIONS. (a) For purposes of this Agreement, the following
terms shall have the following meanings:
"ACQUISITION TRANSACTION" shall have the meaning ascribed to such
term in Section 7.3 hereof.
"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling, directly or indirectly controlled by or under direct
or indirect common control with such Person.
"AGREEMENT" shall have the meaning ascribed to such term in the recitals
hereof.
"APPLICABLE PERCENTAGE" means one hundred (100) percent, except that it
means ten (10) percent (the Seller's pro rata share of the indemnification
obligations under the Majority Purchase Agreement), with respect to Losses that
arise out of any breach by any one or more of the Majority Sellers or the Parent
of any of the Majority Representations and Warranties, to the extent the
Applicable Percentage under the Majority Purchase Agreement is limited to ninety
(90) percent.
"BASKET" shall have the meaning ascribed to such term in Section 8.3
hereof.
"BUSINESS DAY" means any day of the year on which national banking
institutions in New York are open to the public for conducting business and are
not required or authorized to close.
"BY-LAWS" means the By-Laws of the Seller, as amended to date.
"CERTIFICATE OF INCORPORATION" means the Certificate of Incorporation of
the Seller, as amended to date.
"CISCO SUPPLY AGREEMENT" means the Manufacturing and Component Supply
Agreement, made as of the effective date referred to therein, among the Seller,
OTI and PCS.
"CLAIMS" shall have the meaning ascribed to such term in Section 8.6
hereof.
"CLOSING" shall have the meaning ascribed to such term in Section 1.1
hereof.
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"CLOSING DATE" shall mean the date on which the Closing actually occurs
in accordance with Section 3.1 hereof.
"CODE" means the U.S. Internal Revenue Code of 1986, as amended.
"COMPANY" shall have the meaning ascribed to such term in the recitals
hereof.
"COMPANY COMMON STOCK" shall have the meaning ascribed to such term in
the recitals hereof.
"COMPANY REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of August 2, 2000, by and among the Company and the Seller.
"COMPETITION LAWS" means Laws that are designed or intended to prohibit,
restrict or regulate actions having the purpose or effect of monopolization,
lessening of competition or restraint of trade and includes the HSR Act and, to
the extent applicable, equivalent Laws of the European Union or the Member
States thereof.
"CONFIDENTIALITY AGREEMENT" shall mean the Confidentiality Agreement
between the Purchaser and PCS dated July 6, 2000.
"CONFIDENTIAL MATERIAL" shall have the meaning ascribed to such term in
Section 7.1 hereof
"CONTRACT" means any contract, agreement, indenture, note, bond, loan,
instrument, lease, conditional sale, mortgage, license, franchise, insurance
policy commitment or other arrangement or agreement.
"CO-SALE RIGHTS" means the rights of the Seller set forth in Section 3.2
of the Stockholders' Agreement.
"ENVIRONMENTAL AND SAFETY LAWS" shall mean all applicable and effective
Laws or Orders that (x) are intended to assure the protection of the environment
or (y) that classify, regulate, call for the remediation of, restrict the
handling or disposal of, require reporting with respect to, or list or define
air, water, groundwater, solid waste, hazardous or toxic substances, materials,
wastes, pollutants or contaminants, or which are intended to assure the safety
of employees, workers or other persons, including the public.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GOVERNMENTAL BODY" means any government or governmental or regulatory
body thereof, or political subdivision thereof, whether federal, state, local,
foreign or supranational, or any agency, instrumentality or authority thereof,
or any court or arbitrator (public or private).
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and regulations thereunder.
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"LAW" means any federal, state, local, foreign or supranational law
(including common law), statute, code, ordinance, rule, regulation or other
requirement.
"LIEN" means any lien, pledge, mortgage, deed or trust, security
interest, claim, lease, charge, option, right of first refusal, easement,
servitude, transfer restriction under any applicable Law, shareholder or similar
agreement, encumbrance or any other restriction or limitation whatsoever.
"LOCK-UP PERIOD" shall have the meaning ascribed to such term in Section
7.5 hereof.
"LOSSES" shall have the meaning ascribed to such term in Section 8.1
hereof.
"MAJORITY PURCHASE AGREEMENT" shall have the meaning ascribed to such
term in the recitals hereof.
"MAJORITY SELLERS" shall have the meaning ascribed to such term in the
recitals hereof.
"MAJORITY SELLERS' KNOWLEDGE" means "Sellers' Knowledge" as such term is
defined in the Majority Purchase Agreement, provided however, that reference to
this Agreement in such definition shall be deemed to refer to this Agreement
rather than the Majority Purchase Agreement.
"MAJORITY TRANSACTION AGREEMENTS" shall have the meaning ascribed to
such terms in the recitals hereof.
"NYSE" means the New York Stock Exchange.
"ORDER" means any order, injunction, judgment, decree, ruling, writ,
assessment or arbitration award.
"OTI" means Optical Technologies Italia, S.p.A., a corporation
organized and existing under the laws of the Republic of Italy.
"OTNL" shall have the meaning ascribed to such term in the recitals
hereof.
"PARENT" shall have the meaning ascribed to such term in the recitals
hereof.
"PCS" shall have the meaning ascribed to such term in the recitals
hereof.
"PERMITS" means any approvals, authorizations, consents, licenses,
permits or certificates of any Governmental Body.
"PERSON" means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, Governmental Body or other entity.
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"PURCHASE PRICE" shall have the meaning ascribed to such term in Section
2.1 hereof.
"PURCHASER" shall have the meaning ascribed to such term in the recitals
hereof.
"PURCHASER COMMON STOCK" shall have the meaning ascribed to such term in
Section 2.1(a) hereof.
"PURCHASER FINANCIAL STATEMENTS" shall have the meaning ascribed to such
term in Section 5.7 hereof.
"PURCHASER MATERIAL ADVERSE EFFECT" means a material adverse effect on
the business, properties, operations, assets or financial condition of the
Purchaser and its Subsidiaries, taken as a whole, or on the ability of the
Purchaser to perform its obligations under, or to consummate the transactions
contemplated by, this Agreement or any other Transaction Agreement.
"PURCHASER REGISTRATION RIGHTS AGREEMENT" shall have the meaning
ascribed to such term in the recitals hereof.
"QUALIFICATION" shall have the meaning set forth in the letter dated
September 26, 2000, among the Purchaser, OTNL, PCS and Parent relating to the
qualification of chips.
"SEC" means the Securities and Exchange Commission.
"SEC DOCUMENTS" shall have the meaning ascribed to such term in Section
5.7 hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SELLER" shall have the meaning ascribed to such term in the recitals
hereto.
"SELLER MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, properties, operations, assets or financial condition of the Company
and OTI, taken as a whole, or on the ability of the Seller to perform its
obligations under, or to consummate the transactions contemplated by, this
Agreement or any other Transaction Agreement; provided, however, that a general
economic downturn , a general downturn in the industries in which the Company
and OTI compete and/or the loss of any one customer of the Company or OTI shall
not constitute a "Seller Material Adverse Effect."
"SHARES" shall have the meaning ascribed to such term in the recitals
hereof.
"STOCKHOLDERS' AGREEMENT" shall have the meaning ascribed to such term
in the recitals hereof.
"SUBSIDIARIES" with respect to any Person means, any Person with respect
to which more than 50% of the outstanding shares of stock of each class having
ordinary voting power (other than stock having such power only by reason of the
happening of a contingency) is
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at the time owned by such Person or by one or more Subsidiaries of such Person
or by such Person and one or more Subsidiaries of such Person.
"TAX" and its correlative meanings "TAXES" and "TAXABLE" shall mean (x)
any net income, alternative or add-on minimum tax, gross income, gross receipts,
sales, use, ad valorem, value added, capital, transfer, franchise, profits,
license, withholding, payroll, employment, social security, social charges,
registration, excise, severance, stamp, occupation, Pension Benefit Guaranty
Corporation, premiums, property, environmental or windfall profit tax, custom,
duty or other tax, governmental fee or other like assessment or charge of any
kind whatsoever, together with any interest or any penalty, addition to tax or
additional amount imposed by any Governmental Body responsible for the
imposition of any such tax either in the United States or in any non-United
States jurisdiction, including Italy and The Netherlands, and shall include any
transferee liability in respect of Taxes, (y) any liability for the payment of
any amounts of the type described in (x) as a result of being a member of an
affiliated, consolidated, combined or unitary group for any Taxable period, and
(z) any liability for the payment of any amounts of the type described in (x) or
(y) as a result of being a transferee of or successor to any person or as a
result of any express or implied obligation to indemnify any other person.
"TRANSACTION AGREEMENTS" shall have the meaning ascribed to suchterm in
Section 4.2. hereof.
"US GAAP" means generally accepted United States accounting principles
as of the date hereof.
(b) Other Rules of Construction.
(i) Unless the context otherwise requires, references in the
singular include references in the plural and vice versa. References to
a party to this Agreement or to other agreements described herein means
those Persons executing such agreements.
(ii) The words "INCLUDE," "INCLUDING" or "INCLUDES"
shall be deemed to be followed by the phrase "WITHOUT
LIMITATION" or the phrase "BUT NOT LIMITED TO" in all places
where such words appear in this Agreement. The word "OR" shall
be deemed to be inclusive.
(iii) This Agreement is the joint drafting product of
the Seller, and the Purchaser, and each provision has been
subject to negotiation and agreement and neither this Agreement
nor any provisions hereof shall be construed for or against any
party as drafter thereof.
9.2 PUBLIC ANNOUNCEMENTS. Except as required by law, and unless otherwise
agreed upon in writing by the parties, no party shall make a public announcement
regarding this Agreement or any of the other Transaction Agreements or the
transactions contemplated hereby or thereby.
9.3 PAYMENT OF SALES, USE OR SIMILAR TAXES. All sales, use, transfer,
intangible, recordation, documentary stamp or similar Taxes or charges, of any
nature whatsoever, applicable to, or resulting from, the transactions
contemplated by this Agreement shall be borne,
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with respect to the first $1.3 million, by the Seller, and with respect to any
additional amounts, equally by the Seller, on the one hand, and the Purchaser,
on the other hand; provided, however, that the Purchaser shall have no liability
for income or similar Taxes of the Seller or the Majority Sellers.
9.4 EXPENSES.
(a) Except as expressly provided in Section 9.3, the Purchaser will pay
or cause to be paid all expenses incident to the performance of its obligations
under, and the consummation of the transactions contemplated by, this Agreement,
including the fees and disbursements of its counsel, investment bankers and
accountants;
(b) the Seller will pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements of its
counsel, investment bankers and accountants; and
(c) notwithstanding anything to the contrary in this Agreement or
applicable Laws, the Purchaser shall pay one-half of the filing fees, dues or
other charges payable under the HSR Act and any other Competition Laws and the
Seller shall pay the other half of such fees, dues or other charges.
9.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The parties hereto hereby
agree that the representations and warranties contained in this Agreement or in
any Transaction Agreement shall survive the execution and delivery of this
Agreement and the Closing hereunder; provided, however, that any claims or
actions with respect to representations and warranties other than those
contained in Sections 4.3, 4.5, 4.8, and 4.9 shall terminate unless within
twenty-four (24) months after the Closing Date written notice of such claims is
given to the Seller or the Purchaser, as the case may be, or such actions are
commenced. Any claims or actions with respect to the representations and
warranties contained in Sections 4.3 and 4.7 shall terminate on the twentieth
(20th) anniversary of the Closing Date unless prior to such date written notice
of such claim is given to the Seller or such actions are commenced. The parties
hereto further agree that the covenants of the parties contained herein that by
their terms survive the Closing shall survive the Closing hereunder except that
the covenant of the Seller contained in Sections 8.1 (iii), (iv) and (v) hereof
shall terminate on the tenth anniversary of the Closing Date unless prior to
such date written notice of such claims is given to the Seller or such actions
are commenced.
9.6 FURTHER ASSURANCES. The Seller and the Purchaser at the other's request
and without cost to the other each agree to execute and deliver such other
documents or agreements and to take such other action as may be reasonably
necessary or desirable for the implementation of this Agreement and each of the
other Transaction Agreements and the consummation of the transactions
contemplated hereby or thereby.
9.7 ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS; EXCLUSIVE REMEDIES. (a) This
Agreement (including the other Transaction Agreements and the schedules and
exhibits hereto and thereto) represents the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof and thereof
and supersede all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties.
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The Letter Agreement between the Purchaser and the Seller dated on or about
October 27, 2000 is hereby terminated. If there shall arise any conflict between
this Agreement and the Stockholders' Agreement, this Agreement shall prevail.
Each party disclaims the existence or completeness of, or reliance upon, any
representation or warranty by the others, except as to representations and
warranties expressly set forth in this Agreement or the other Transaction
Agreements. This Agreement can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to the provision of this Agreement being amended, supplemented,
changed or waived. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein. The waiver by any party hereto
of a breach of any provision of this Agreement shall not operate or be construed
as a further or continuing waiver of such breach or as a waiver of any other
then-existing or subsequent breach. No failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such party preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
(b) The parties agree that the indemnification provisions of this
Agreement and the other Transaction Agreements provide the sole and
exclusive remedies against any other party hereto for Losses resulting from
or arising under this Agreement or any of the other Transaction Agreements.
9.8 GOVERNING LAW; SUBMISSION TO JURISDICTION; CONSENT TO SERVICE. (a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without reference to its principles of conflicts of law, which
would require the application of any other law.
(b) The parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of any federal or state court located within the
State of New York over any dispute arising out of or relating to this Agreement
or any of the transactions contemplated hereby or thereby and each party hereby
irrevocably agrees that all claims in respect of such dispute or any suit,
action proceeding related thereto may be heard and determined in such courts.
The parties hereby irrevocably waive, to the fullest extent permitted by
applicable law, any objection which they may now or hereafter have to the laying
of venue of any such dispute brought in such court or any defense of
inconvenient forum for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(c) Each of the parties hereto hereby consents to process
being served by any party to this Agreement in any suit, action or proceeding by
the mailing of a copy thereof in accordance with the provisions of Section 9.10.
9.9 TABLE OF CONTENTS AND HEADINGS. The table of contents and section
headings of this Agreement are for reference purposes only and are to be given
no effect in the construction or interpretation of this Agreement.
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9.10 NOTICES. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally or
mailed by certified mail, return receipt requested, to the parties (and shall
also be transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified by
notice given to the other party pursuant to this provision):
If to the Seller:
Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Senior Vice President, Legal
and Governmental Affairs
Fax: (000) 000-0000
Telephone: (000) 000-0000
With a copy to:
Brobek, Phleger & Xxxxxxxx LLP
000 Xxxx Xxxx
Two Embarcadero Place
Palo Alto, CA 94303
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Telephone: (000) 000-0000
If to the Purchaser, to:
Corning Incorporated
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Telephone: (000) 000-0000
Attn: General Counsel
With a copy to:
Xxxxx Xxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Xx., Esq.
Fax: (000) 000-0000
Telephone: (000) 000-0000
9.11 SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in full force and
effect and this Agreement shall be construed as if such invalid or unenforceable
provision were omitted.
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9.12 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third-party beneficiary rights in any person or entity not a party to this
Agreement except as provided below. No assignment of this Agreement or of any
rights or obligations hereunder may be made by either the Seller or the
Purchaser (by operation of law or otherwise) without the prior written consent
of the other parties hereto and any attempted assignment without the required
consents shall be void; provided, however, that the Purchaser may assign this
Agreement and any or all rights or obligations (provided that the Purchaser
shall remain primarily liable for all such obligations), hereunder (including
the Purchaser's rights to purchase the Shares and the Purchaser's rights to seek
indemnification hereunder) to any Affiliate of the Purchaser. Upon any such
permitted assignment, the references in this Agreement to the Purchaser shall
also apply to any such assignee unless the context otherwise requires.
9.13 SPECIFIC PERFORMANCE. The Seller agrees that its breach of its
obligations to sell the Shares to the Purchaser on the terms and conditions of
this Agreement would cause irreparable damage to the Purchaser and that the
Purchaser will not have an adequate remedy at law. The Seller therefore agrees
that if this Agreement is not consummated on the basis of the preceding
sentence, then the Purchaser shall be entitled to specific performance of the
Seller's obligation to sell the Shares to the Purchaser.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first written above.
CISCO SYSTEMS, INC.
By: _________________________
Name:
Title:
CORNING INCORPORATED
By: _________________________
Name: Xxxxxxxx X. XxXxx
Title:Vice President, Corporate
Development
