ASSET PURCHASE AGREEMENT BY AND AMONG TEGAL CORPORATION, A DELAWARE CORPORATION, ALCATEL MICRO MACHINING SYSTEMS, A FRENCH CORPORATION, AND ALCATEL LUCENT, A FRENCH CORPORATION, DATED SEPTEMBER 2, 2008
Exhibit
10.1
BY
AND AMONG
TEGAL
CORPORATION, A DELAWARE CORPORATION,
ALCATEL
MICRO MACHINING SYSTEMS,
A
FRENCH CORPORATION,
AND
ALCATEL
LUCENT,
A
FRENCH CORPORATION,
DATED
SEPTEMBER
2, 2008
This
ASSET PURCHASE AGREEMENT
(the “Agreement”), is dated
as of September 2, 2008, by and among Tegal Corporation, a Delaware
corporation (“Buyer”), Alcatel
Micro Machining Systems, a French corporation (“AMMS”), and Alcatel
Lucent, a French corporation (“Alcatel” and together
with AMMS, “Sellers”, and each a
“Seller”). Buyer
and Sellers are sometimes collectively referred to herein as the “Parties” and
individually as a “Party.”
W I T N E S S E T
H:
WHEREAS,
Sellers are conducting, inter alia, activities related to the Business (as this
term is defined herein);
WHEREAS,
Buyer has conducted a due diligence review of the Business and related assets
and has attended various presentations of the management regarding this Business
and carried out site visits;
WHEREAS,
Sellers desire to sell, and Buyer desires to purchase, certain assets used in
the Business on the terms and conditions set forth in this
Agreement;
WHEREAS,
capitalized terms used and not otherwise defined herein shall have the meanings
set forth in Article IX hereof.
NOW
THEREFORE, in consideration of the foregoing and the mutual representations,
warranties, covenants, agreements, terms and conditions contained herein, the
parties hereto do hereby agree as follows:
ARTICLE
I
SALE;
CLOSING
1.1 Transfer of
Assets by
AMMS. Subject
to the terms and conditions set forth in this Agreement, AMMS will sell, assign,
transfer and deliver to Buyer free and clear of all Encumbrances, except for
Permitted Encumbrances, the following:
(b) The
research and development and demonstration equipment listed on Section 1.1(b) of Seller
Disclosure Schedule;
(c) The
Intellectual Property, other than Patents and trademarks containing the name
Alcatel, that is exclusively used or held for use for the operation of the
Business with respect to the AMMS Products, all of which is listed on Section
1.1(c) of Seller Disclosure Schedule (the “AMMS Intellectual
Property,” and together with the Alcatel Assets, “Business Intellectual
Property”).
(d) All of
AMMS’ rights and interests in any documents, files, records, databases and
electronic systems containing customer information, product documentation,
marketing information and other commercial information pertaining to the Assets,
the AMMS Products and the operation of the Business, except to the extent which
such rights and interests constitute Business Intellectual Property (“Business
Documentation”); and
(e) All of
the copyrights included in the AMMS Intellectual Property held by the Sellers,
for the duration of the legal protection provided by U.S., French or other
foreign legislations and foreign agreements (and any extensions thereof), with
the right of Buyer to represent, copy, modify and adapt, by any and all means,
known or unknown, such copyrights ((a) through (e), collectively referred to as
the “AMMS
Assets”).
1.2 Alcatel
Assets. Subject
to the terms and conditions set forth in this Agreement and the Intellectual
Property Agreement, Alcatel will sell, assign, transfer and deliver to Buyer
free and clear of all Encumbrances, except for Permitted Encumbrances, all
Patents exclusively used or held for use in the operation of the Business with
respect to the AMMS Products, all of which Patents are listed on Section 1.2 of
the Seller Disclosure Schedule (the “Alcatel Assets” and
together with the AMMS Assets, the “Assets”).
1.3 Assets Not
Transferred
. Buyer
and Sellers acknowledge and agree that no Seller is selling, conveying,
transferring, delivering or assigning any rights whatsoever to the Excluded
Assets to Buyer, and Buyer is not purchasing, taking delivery of or acquiring
any rights whatsoever to the Excluded Assets from any Seller.
1.4 Alcatel Micro Machining
Systems Xxxx and Logo. Subject
to the terms and conditions set forth in this Agreement and the Trademark
License Agreement, Alcatel will grant to Buyer the right to use the name and
logo “Alcatel Micro Machining Systems” as a xxxx in connection with the
Business.
1.5 Assignment and Assumption of
Certain Liabilities
. On
the Closing Date, each Seller shall sell, assign, transfer, convey and deliver
to Buyer, as of the Closing Date, all of such Seller’s right, title and interest
in and to the Assumed Liabilities. On the Closing Date, Buyer shall
assume and agree to observe and perform all of each Seller’s duties,
obligations, terms, provisions and covenants of, and to pay and discharge when
due, all of each Seller’s right, title and interest in and to the Assumed
Liabilities sold, assigned, transferred, conveyed or delivered to
Buyer.
1.6 Non-Assumption of Excluded
Liabilities. Except
for the Assumed Liabilities, Buyer shall not assume, shall not take subject to
and shall not be liable for, any liabilities or obligations of any kind or
nature, whether absolute, contingent, accrued, known or unknown, of any Seller
or any Affiliate thereof (the “Excluded
Liabilities”). Without limiting the generality of the prior
sentence, Excluded Liabilities shall include, without limitation:
(a) All
Indebtedness of any Seller;
(b) All
liabilities related directly or indirectly to any Seller’s indemnification
obligations in existence as of the Closing Date;
(c) All
liabilities resulting from Actions and Orders affecting or related to any Seller
or arising out of or related to the conduct of the Business prior to the Closing
Date, including, without limitation, those actual, pending and threatened
Actions set forth in Section 3.10 of Seller
Disclosure Schedule;
(d) All
liabilities arising out of or relating to the Excluded Assets;
(e) All
liabilities of any Seller or its Affiliates, or otherwise imposed on the Assets
or with respect to the Business, in respect of any Tax, including without
limitation (i) any liability of any Seller or its Affiliates for the Taxes of
any other Person under Treasury Regulation Section 1.1502-6 (or any similar
provision of state, local or foreign Law), as a transferee or successor, by
contract or otherwise, and (ii) any Property Taxes or Business Taxes (taxe
professionnelle);
(f) All
liabilities and obligations resulting from, relating to or arising out of any
former operations of the Business (including without limitation any former
property or facility owned or leased by any Seller) that have been discontinued
or disposed of prior to the Closing Date or any existing or remaining operations
of Seller on or after the Closing Date;
(g) All
liabilities arising from defects in products manufactured or from services
performed by or on behalf of any Seller on or prior to the Closing
Date;
(h) Any
liabilities of any Seller to any holders of the Equity Securities of such
Seller, including, without limitation, any Indebtedness to any holders of the
Equity Securities of such Seller;
(i) All
liabilities and obligations (including, without limitation, liabilities for
compensation, wages, bonuses, sales commissions, licensing commissions, vacation
time and vacation pay, pay in lieu of vacation, severance pay and benefits or
liabilities under any Plans of a Seller or for any claim of unfair labor
practice or under state, foreign or local unemployment compensation or worker’s
compensation Laws) relating to current or former employees of any Seller or
under any employment agreement to which any Seller is a party;
(j) All
liabilities and obligations of any Affiliate of any Seller;
(k) All
debts, liabilities or obligations whatsoever, that do not arise out of or relate
to the Business or that do not otherwise arise out of or relate to the Assets;
and
(l) All
debts, liabilities and obligations whatsoever (including, without limitation,
liabilities for payment of sale commissions or ongoing monthly maintenance
commissions) due as of the Closing Date.
1.7 Purchase
Price.
(a) Subject
to the terms and conditions set forth in this Agreement, Buyer agrees to
purchase and acquire the Assets from Sellers for a purchase price of five
million dollars (US$5,000,000), payable to AMMS as set forth in Section 1.7(b) below (in the
aggregate, the “Purchase
Price”).
(b) The
Purchase Price shall be payable on the Closing Date as follows:
(i) One
million dollars (US$1,000,000) shall be payable by means of a cash payment by
Buyer by wire transfer of immediately available funds to an account designated
by Sellers; and
(ii) a number
of shares of Buyer Common Stock (“Delivered Shares”)
equal to the quotient of (x) $4,000,000 divided by (y) the average of the
closing sales prices of Buyer Common Stock as reported on the Nasdaq Capital
Market on the five (5) consecutive trading days immediately prior to (but
excluding) the Closing Date shall be delivered to AMMS (either by delivery of
physical stock certificate in the name of AMMS or as otherwise agreed to by the
Parties).
(iii) Buyer
shall assume the Assumed Liabilities.
(c) Sellers
shall qualify as goods exporters for VAT purposes in relation to the transfer of
the Assets and shall take all steps necessary to ensure that the delivery of the
Assets to Buyer is treated as a dispatch or transportation of goods outside the
European Community that is exempt from any VAT.
(d) The
Purchase Price is exclusive of any customs duties in relation to the import of
the Assets into the United States. Should any customs duties apply, they shall
be paid by Buyer in addition to the Purchase Price.
(e) Subject
to the penalties provided in Article 1837 of the Xxxxxx Xxxxxxx Tax Code, Seller
and Buyer represent that the Purchase Price specified herein is the entirety of
the agreed price. They acknowledge that they have been informed of
the penalties which would be incurred in the event that this declaration is
proven to be false and expressly undertake that this Agreement shall not be
amended by any side letter increasing the Purchase Price. The Parties
acknowledge and declare that they have agreed exclusively between themselves on
the amount of the Purchase Price.
1.8 Transfer Taxes; Closing
Costs.
(a) Sellers
and Buyer shall each bear and timely pay 50% of all transfer, documentary,
sales, use, valued-added, gross receipts, stamp, registration and other similar
transfer Taxes, and all recording or filing fees, notarial fees and other
similar costs of Closing, that may be imposed, payable, collectible or incurred
(“Transfer
Taxes”), in connection with the transfer and sale of the Assets as
contemplated by the terms of this Agreement. Sellers will, at
Sellers’ expense, file all necessary Tax Returns and other documentation with
respect to any such Transfer Taxes and shall file such Tax Returns within the
time prescribed by applicable Law, and Buyer will join in the execution of any
such Tax Returns and other documentation. Sellers shall provide Buyer
with evidence satisfactory to Buyer that such Transfer Taxes have been timely
paid by Sellers. Buyer shall pay the fees and costs of recording or
filing all applicable conveyancing instruments described in Section 1.12(a). For the avoidance of doubt, if any
Transfer Taxes are required to be paid by Buyer, Buyer shall be obliged to remit
such sum in cash to Seller in addition to the Purchase Price.
(b) All
Transfer Taxes incurred in connection with the transfer of the Delivered Shares
as contemplated by the terms of this Agreement shall be borne and timely paid by
Sellers. Sellers will, at their own expense, file all necessary Tax
Returns and other documentation with respect to any such Transfer Taxes and
shall file such Tax Returns within the time prescribed by applicable Law, and
Buyer will join in the execution of any such Tax Returns and other
documentation. Sellers shall provide Buyer with evidence satisfactory
to Buyer that such Transfer Taxes have been timely paid by
Sellers. Sellers shall pay the fees and costs of recording or filing
all applicable conveyancing instruments described in Section 1.12(a).
1.9 Allocation of the Purchase
Price.
(a) The
Purchase Price (plus Assumed Liabilities, to the extent properly taken into
account under the Code), shall be allocated among the Assets and the covenants
of Sellers under Article VII of this Agreement as set forth in a schedule (the
“Allocation
Schedule”) (the allocation set forth on the Allocation Schedule, the
“Allocation”). The
Allocation shall, to the extent applicable, be prepared in accordance with
Section 1060 of the Code and corresponding provisions of U.S. state and local
Tax Law. The Allocation Schedule shall be agreed to by the parties no later than
the Closing Date.
(b) If the
Purchase Price is adjusted pursuant to Section 4.4(d), the Allocation shall be adjusted as mutually
agreed by Buyer and Sellers.
(c) Buyer and
Sellers shall file all applicable Tax Returns consistent with the
Allocation. Neither Buyer nor any Seller shall take any Tax position
inconsistent with such Allocation and neither Buyer nor any Seller shall agree
to any proposed adjustment to the Allocation by any Taxing authority without
first giving the other party prior written notice; provided, however, that nothing
contained herein shall prevent Buyer or any Seller from settling any proposed
deficiency or adjustment by any Taxing authority based upon or arising out of
the Allocation, and neither Buyer nor any Seller shall be required to litigate
before any court any proposed deficiency or adjustment by any taxing authority
challenging such Allocation.
1.10 Withholding. All
sums payable by Buyer to Sellers under this Agreement shall be paid free and
clear of all deductions, withholdings, set-off or counterclaims whatsoever
except as may be required by Law.
1.11 The
Closing. The
Closing of the transactions provided for in this Agreement shall be held in
Menlo Park, California, at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx
Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx at 10:00 a.m. on the tenth business day following
satisfaction or waiver of the conditions set forth in Article V (other than
those conditions that by their nature must be satisfied on the date of the
Closing) or at such other time and place as the parties may agree (the “Closing
Date”).
1.12 Conveyances and Deliveries
at the Closing.
(a) Deliveries by
Sellers. On the Closing Date, each Seller shall deliver or
cause to be delivered to Buyer the following:
(i) the
Ancillary Agreements to which such Seller is a party;
(ii) a xxxx of
sale issued by AMMS to Buyer, substantially in the form of Exhibit A
hereto duly executed by AMMS;
(iii) for the
Alcatel Assets, a duly executed Assignment of Patent Rights in substantially the
same form as set forth in Schedule C to the Intellectual Property
Agreement;
(iv) such
other instruments of transfer reasonably requested by Buyer to transfer to and
vest in Buyer all of such Seller’s right, title and interest in and to the
Assets;
(v) evidence
reasonably satisfactory to Buyer of all Approvals from third parties as are
required to consummate the transactions contemplated hereby; and
(vi) such
other documents and instruments as are required pursuant to this Agreement or as
may reasonably be requested by Buyer or its counsel.
(b) Deliveries by
Buyer. On the Closing Date, Buyer shall deliver or cause to be
delivered the following:
(i) the
Ancillary Agreements;
(ii) the
payment required by Section 1.7(b)(i);
(iii) the
payment required by Section 1.7(b)(ii);
(v) such
other documents and instruments as are required pursuant to this Agreement or as
may reasonably be requested by AMMS or its counsel.
(c) Physical Delivery of
Tangible Assets. At Buyer’s risk and expense, tangible Assets
shall be physically delivered to Buyer’s designated destination within a
reasonable period of time upon Seller’s receipt of written instructions to
Sellers indicating the destination and reasonable timing of
delivery. To the extent not actually delivered on the Closing Date,
Sellers shall effect physical delivery of the tangible assets included in the
Assets to Buyer by providing Buyer with physical access to the locations of such
Assets.
(d) Form of
Documents. To the extent that a form of any document to be
delivered hereunder is not attached as an exhibit hereto, such documents shall
be in form and substance, and shall be executed and delivered in a manner,
reasonably satisfactory to Buyer.
(e) Lock-up; Securities Laws
Restrictions; Legend.
(i) Subject
to Section 1.12(e)(ii), each Seller acknowledges and agrees that the
Delivered Shares shall be subject to restrictions on transfer (the “Lock-up”) and no
Delivered Shares shall be sold, transferred, pledged, assigned, disposed of or
encumbered except as follows:
(A) Upon the
first anniversary of the Closing Date, one-third (1/3) of the Delivered Shares
shall be released from the Lock-up and may be sold, transferred, pledged,
assigned, disposed of or encumbered in accordance with applicable federal, state
and foreign securities Laws;
(B) Upon the
second anniversary of the Closing Date, an additional one-third (1/3) of the
Delivered Shares shall be released from the Lock-up and may be sold,
transferred, pledged, assigned, disposed of or encumbered in accordance with
applicable federal, state and foreign securities Laws;
(C) Upon the
earlier of (x) the third year anniversary of the Closing Date and (y) the
termination, by mutual agreement of the Parties, of the obligations under
Section 4.13 the final one-third (1/3) of the
Delivered Shares shall be released from the Lock-up and may be sold,
transferred, pledged, assigned, disposed of or encumbered in accordance with
applicable federal, state and foreign securities Laws.
(ii) Notwithstanding
Section 1.12(e)(i), any Seller may transfer Delivered Shares to
another member of the Alcatel Lucent Group, including without limitation, in
connection with a merger, consolidation, restructuring or other business
combination involving any Seller and any other member of the Alcatel Lucent
Group; provided that such transfer is effected in accordance with applicable
federal, state and foreign securities Laws.
(iii) Upon
issuance at Closing, each certificate representing Delivered Shares shall bear a
legend stating:
THE
ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR APPLICABLE STATE SECURITIES LAWS AND THESE SECURITIES MAY NOT BE SOLD
OR TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SALE AND
TRANSFER IS EFFECTIVE UNDER THE SECURITIES ACT OR (II) THE TRANSACTION IS EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT, AND IF THE ISSUER REQUESTS, AN
OPINION SATISFACTORY TO THE ISSUER TO SUCH EFFECT HAS BEEN RENDERED BY
COUNSEL.
(iv) Upon
issuance at Closing, each certificate representing Delivered Shares shall bear a
legend stating:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A CONTRACTUAL LOCK-UP
PERIOD PURSUANT TO THAT CERTAIN ASSET PURCHASE AGREEMENT BY AND AMONG THE
ISSUER, ALCATEL MICRO MACHINING SYSTEMS AND ALCATEL LUCENT, IN ACCORDANCE WITH
AND SUBJECT TO SUCH LOCK-UP PERIOD, SUCH SECURITIES MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, DISPOSED OF, ENCUMBERED OR ASSIGNED AND THE ISSUER SHALL
NOT BE REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED SALE, TRANSFER, PLEDGE,
DISPOSAL, ENCUMBRANCE OR ASSIGNMENT, EXCEPT AS PERMITTED THEREUNDER. UPON THE
WRITTEN REQUEST OF THE HOLDER OF THIS CERTIFICATE, THE ISSUER AGREES TO REMOVE
THIS RESTRICTIVE LEGEND (AND ANY STOP ORDER PLACED WITH ITS TRANSFER AGENT) WITH
RESPECT TO SUCH SECURITIES THAT ARE NO LONGER BOUND BY THE LOCK-UP
PERIOD.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
represents and warrants to Sellers as follows:
2.1 Organization and Related
Matters. Buyer
is a corporation duly organized, validly existing and in good standing under the
Laws of the State of Delaware. Buyer has all necessary corporate
power and authority to carry on its business as now conducted. Buyer
has the necessary corporate power and authority to execute, deliver and perform
this Agreement and the Ancillary Agreements and to consummate the transactions
contemplated hereby and thereby.
2.2 Authorization. The
execution, delivery and performance of this Agreement and the Ancillary
Agreements by Buyer and the consummation by Buyer of the transactions
contemplated hereby and thereby have been duly and validly authorized by the
board of directors of Buyer and by all other necessary corporate action on the
part of Buyer. This Agreement has been, and each of the Ancillary
Agreements, upon execution thereof by Buyer, shall be, duly executed and
delivered by Buyer and constitutes or will constitute the legal, valid and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar Laws and equitable principles
relating to or limiting creditors’ rights generally.
2.3 No
Conflicts. The
execution, delivery and performance of this Agreement and each of the Ancillary
Agreements by Buyer will not violate the provisions of, or constitute a breach
or default whether upon lapse of time and/or the occurrence of any act or event
or otherwise or require any Approval under (a) the charter documents or
by-laws of Buyer, (b) any Law to which Buyer is subject (provided that appropriate
regulatory Approvals are received as contemplated by Section 4.3), or (c) any material Contract to which Buyer
is a party.
2.4 No Brokers or
Finders. No
agent, broker, finder or investment or commercial banker, or other Person or
firm engaged by or acting on behalf of Buyer or its Affiliates in connection
with the negotiation, execution or performance of this Agreement or the
transactions contemplated by this Agreement, is or will be entitled to any
broker’s or finder’s or similar fees or other commissions as a result of this
Agreement or such transactions.
2.5 Legal
Proceedings. There
is no Order or Action pending or to the Knowledge of Buyer, threatened against
Buyer that individually or when aggregated with one or more other Orders or
Actions has or might reasonably be expected to have a material adverse effect on
Buyer’s ability to perform this Agreement.
2.6 No Registration. Assuming
that the representations and warranties of Sellers in Article III are true and
correct, no registration of the Delivered Shares under the Securities Act is
required in connection with the issuance of the Delivered Shares by Buyer to
AMMS as contemplated by this Agreement.
2.7 Broker’s
Fees. No
broker, investment banker, financial advisor or other Person is entitled to any
broker’s, finder’s, financial advisor’s or other similar fee or commission in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of Buyer.
2.8 Delivered
Shares. The
Delivered Shares shall be validly issued, fully paid and nonassessable shares of
Buyer’s Common Stock and the holder of the Delivered Shares shall be afforded
the rights and benefits appurtenant thereto as set forth in the charter
documents or by-laws of Buyer.
2.9 SEC
Filings
. Each
form, report and statement required to the filed by Buyer with the SEC (the
“Buyer SEC
Documents”) was filed in a timely manner and was prepared in all material
respects in accordance with applicable securities Law and Buyer has not received
any notice from the SEC that any matter in respect of Buyer SEC Documents is
currently the subject of any review, inquiry or investigation.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF SELLERS
Each
Seller, jointly and severally, represent and warrant to Buyer as
follows:
3.1 Organization, Subsidiaries,
etc. Each
Seller is a corporation and is duly organized, validly existing and in good
standing under the Laws of France. Each Seller has the necessary
power and authority to execute, deliver and perform this Agreement and each of
the Ancillary Agreements to which it is a party and to consummate the
transactions contemplated hereby and thereby. AMMS is an
indirect wholly-owned Subsidiary of Alcatel.
3.2 Authorization. The
execution, delivery and performance of this Agreement and the Ancillary
Agreements to which such Seller is a party by such Seller and the consummation
by such Seller of the transactions contemplated hereby and thereby have been
duly and validly authorized by the board of directors of such Seller and by all
necessary actions of such Seller’s stockholders or other
equityholders. The execution, delivery and performance of this
Agreement and the applicable Ancillary Agreements by such Seller and the
consummation by such Seller of the transactions contemplated hereby and thereby
are duly and validly authorized by all necessary corporate or other action on
the part of such Seller. This Agreement has been, and each of the
applicable Ancillary Agreements, upon execution thereof by such Seller, shall
be, duly executed and delivered by such Seller and constitutes or will
constitute the legal, valid and binding obligation of such Seller, enforceable
against such Seller in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium and other
similar Laws and equitable principles relating to or limiting creditors’ rights
generally.
3.3 Absence of Certain Changes
or Events. Since
May 31, 2008, there has not been any:
(a) Revaluation
by any Seller of any of the Assets, including without limitation writing down
the value of goodwill or inventory or writing off notes or accounts
receivable;
(b) Destruction
or Loss (whether or not covered by insurance) materially adversely affecting the
Assets;
(c) Amendment,
cancellation or termination of any Contract, commitment, agreement, transaction
or Permit relating to the Assets or entry into any Contract, commitment,
agreement, transaction or Permit which is not in the ordinary course of
business, including without limitation any employment or consulting
agreements;
(d) Mortgage,
pledge or other encumbrance of any Assets, except purchase money mortgages
arising in the ordinary course of business;
(e) Sale,
assignment or transfer of any of the Assets, other than in the ordinary course
of business;
(f) Existence
of any other event or condition which in any one case or in the aggregate has or
might reasonably be expected to have a material adverse effect on the Assets;
or
(g) Agreement
by any Seller to do any of the things described in the preceding clauses (a)
through (f) other than as expressly provided for herein.
3.4 No
Conflicts. Except
as set forth in Section 3.4 of Seller Disclosure
Schedule the execution and delivery of this Agreement and each of the Ancillary
Agreements by the applicable Seller(s) and the consummation of the transactions
contemplated hereby and thereby will not (a) violate the provisions of, or
constitute a breach or default (or any act or event which would constitute a
breach or default but for the lapse of time or absence of notice of such breach
or default), or result in the creation or vesting of any payment or other right
of any Person, under (i) the charter documents or by-laws (or similar
governing documents) of any Seller, (ii) to the Sellers’ knowledge, any Law
to which any Seller or any of the Assets is subject (provided that all required
regulatory Approvals are received as contemplated by Section 4.3), or (iii) any Contract to which any of the
Assets is subject or (b) result in the imposition of any Encumbrance
against any of the Assets.
3.5 Consents,
etc. Section
3.5 of Seller Disclosure Schedule lists all
Permits, Orders and Approvals of any Governmental Entity or any other Person
required to be obtained by any Seller in order to execute and deliver this
Agreement and consummate the transactions contemplated
hereunder. Each Seller has obtained all such Permits, Orders and
Approvals necessary for the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby. To the
Knowledge of Sellers, none of the Assets fall within the scope of Article L.
151-3 of the French Code Monétaire et Financier dealing with foreign investments
in France, and accordingly, this transaction is not subject to the prior
authorization of any French Governmental Entities pursuant to the same
regulation.
3.6 Government Authorizations
and Compliance with Laws.
(a) Section
3.6(a) of Seller
Disclosure Schedule contains a complete and accurate list of all Permits held by
AMMS which are the only Permits necessary for AMMS to operate the Assets as they
were operated until the Closing. AMMS is not in Default, nor has it
received any notice of any claim of Default, with respect to any such
Permit.
(b) Except as
set forth in Section 3.6(b) of Seller Disclosure Schedule, the Assets has been
operated at all times in compliance with all applicable Laws and
Orders. Except as set forth in Section 3.6(b) of Seller
Disclosure Schedule, for the last five (5) years no notice has been received by
any Seller and no investigation or review is pending or, to the Knowledge of
Sellers, threatened by any Governmental Entity with respect to (i) any
alleged violation by AMMS of any Law or (ii) any alleged failure to have
any Permit required in connection with the operation of the
Assets. Except as set forth in Section 3.6(b) of Seller
Disclosure Schedule, neither Seller has conducted any internal investigation
concerning any alleged violation of any Law applicable to AMMS or the Assets
(regardless of the outcome of such investigation) on the part of AMMS or any of
its Affiliates or any of its Representatives.
3.7 Tax
Matters. Except
to the extent a breach of any of the following could not give rise to an
Encumbrance on the Assets, adversely affect the Business, or result in a
liability of Buyer or its Affiliates for Taxes:
(a) each
Seller has timely filed (taking into account any extensions of time for such
filings that have been properly and timely requested by such Seller) all Tax
Returns that were required to be filed;
(b) All such
Tax Returns are complete and accurate in all material respects;
(c) All Taxes
owed by each Seller (whether or not shown on any Tax Return) have been
paid;
(d) No Seller
is currently the beneficiary of any extension of time within which to file any
Tax Return;
(e) No claim
has ever been made by an authority in a jurisdiction in which a Seller does not
file Tax Returns that such Seller is or may be subject to taxation by that
jurisdiction;
(f) There are
no pending or, to the Seller’s Knowledge, threatened audits, investigations,
disputes, notices of deficiency, claims or other Actions for or relating to any
Liability for Taxes of any Seller; or
(g) No Seller
has waived any statute of limitations in respect of Taxes or agreed to any
extension of time with respect to a Tax assessment or deficiency.
3.8 Title to and Condition of
Properties; Absence of Liens and Encumbrances, etc.; Sufficiency of
Assets.
(a) Title to Properties; Absence
of Liens and Encumbrances, etc. Each of AMMS and Alcatel has
good and marketable title (or valid leasehold interests in all properties held
under lease) to all AMMS Assets or Alcatel Assets, respectively, in each case
free and clear of all Encumbrances, except for Permitted Encumbrances, and all
such Assets conform in all material respects to all applicable Laws relating to
their construction, use and operation. Each Seller has all rights,
power and authority to sell, convey, assign, transfer and deliver its respective
Assets to Buyer in accordance with the terms of this Agreement.
(b) Condition of
Properties. All Assets are insured to the extent and in a
manner customary in Sellers’ industry. Such Assets include all
Permits or other rights required by Law or appurtenant thereto. All
AMMS Assets are in a good state of maintenance and repair (except for ordinary
wear and tear).
(c) Notwithstanding
the foregoing, this Section shall not apply to Intellectual Property (which is
covered by Section 3.11).
3.9 Principal Customers and
Suppliers. Section 3.9 of Seller Disclosure Schedule lists the ten
largest customers and ten largest suppliers of the Business, based upon dollar
volume of business with AMMS during the fiscal year ended December 31, 2007 and
the volume of business with each such customer or supplier. Since
December 31, 2007, no customer or supplier has suspended, terminated or
materially reduced its business with AMMS, or indicated its intent to suspend,
terminate or materially reduce its business with AMMS other than normal
fluctuations in the ordinary course of business. Section 3.9 of Seller Disclosure Schedule lists all customer
Contracts that terminate in 2008 with the dates of termination of
each.
3.10 Litigation. Except
as set forth in Section 3.10 of Seller
Disclosure Schedule, there is no Order or Action pending or, to the Knowledge of
Sellers, threatened (a) against any Seller or its respective directors or
officers as such or affecting any of the Assets, (b) which seeks to
prohibit, restrict or delay consummation of the transactions contemplated by
this Agreement or the Ancillary Agreements or any of the conditions to
consummation of such transactions, or (d) in which AMMS is a
plaintiff. No Seller is in Default with respect to or subject to any
Order, and there are no unsatisfied judgments against any Seller or the
Assets.
3.11 Intellectual Property.
(a) The
Business Intellectual Property and the Licensed Intellectual Property (as
defined in the Intellectual Property Agreement) (collectively, the “Intellectual Property
Rights”), are, as of the Closing Date, all the Intellectual Property
owned or controlled by Sellers or their respective Affiliates used or held for
use in the operation of the Business as being conducted as of the Closing Date
with respect to the AMMS Products, and, to the Knowledge of the Alcatel Lucent
Intellectual Property and Standards Group, the Bosch patent license is the only
patent license under third party patent rights entered into by the Sellers
specifically for the purpose of operating the Business. Except as
specifically set forth in Section 3.11(a) of Seller Disclosure Schedule, as of the Closing
Date (1) AMMS owns the AMMS Intellectual Property, (2) Alcatel owns the Alcatel
Assets, and (3) the Business Intellectual Property and Business Documentation
are free of any Encumbrances, other than Permitted Encumbrances, and will be
fully transferable. Sellers or their respective Affiliates are
up-to-date with the payment of all applicable fees associated with the filing
and maintenance of the Business Intellectual Property that is filed as a patent
application or issued patent (the “Registered Patented Business
IP”), and have carried out all formalities necessary to ensure that the
Registered Patented Business IP is validly registered in the name of the
applicable Seller or its Affiliates as of the Closing Date. Except as
specifically set forth in Section 3.11(a) of Seller Disclosure Schedule, none of the
Registered Patented Business IP has been found invalid or unenforceable for any
reason in any administrative, arbitration, judicial or other proceeding.
Furthermore, Sellers have not received in the past three (3) years any written
notice from any third party (other than a patent office, patent administration
office, or any of Sellers’ patent counsels) explicitly stating that the
Registered Patented Business IP may be invalid or unenforceable.
(b) Except as
specifically set forth in Section 3.11(b) of the Seller Disclosure Schedule, there is not
pending against the Sellers or any of their respective Affiliates any Action by
any third party contesting the validity, enforceability, ownership, registration
or use by the Sellers or any of their respective Affiliates of any Business
Intellectual Property or alleging that the operation of the Business with
respect to the AMMS Products has infringed, misappropriated, or otherwise
violated any Intellectual Property of any third party, and to the Knowledge of
the Alcatel Lucent Intellectual Property and Standards Group, no such Actions
are threatened. Except as set forth on Section 3.11(b) of the Seller
Disclosure Schedule, to the Knowledge of the Alcatel Lucent Intellectual
Property and Standards Group, the operation of the Business with respect to the
AMMS Products has not infringed, misappropriated, or otherwise violated any
Intellectual Property of any third party in the past three (3)
years. Except as set forth on Section 3.11(b) of the Seller
Disclosure Schedule, to the Knowledge of the Intellectual Property and Standards
Group, no third party is infringing, misappropriating, or otherwise violating
any Business Intellectual Property.
(c) Except as
set forth in Section 3.11(c) of the Seller Disclosure Schedule, Sellers have
used commercially reasonable efforts to obtain assignments of ownership of the
Business Intellectual Property from all employees and consultants of the Sellers
who have contributed to the creation or development of the Business Intellectual
Property. Except as set forth in Section 3.11(c) of the Seller
Disclosure Schedule, to the Knowledge of the Alcatel Lucent Intellectual
Property and Standards Group, in the past three (3) years no written notice has
been received by Sellers from an employee or consultant of a Seller claiming an
ownership interest in the Business Intellectual Property created by such
employee or consultant. Sellers have taken commercially reasonable
steps to protect the confidentiality and prevent disclosure of their trade
secrets and other confidential and proprietary information contained within the
Business Intellectual Property and Business Documentation.
(d) To the
Knowledge of the Alcatel Lucent Intellectual Property and Standards Group,
except for the non-exclusive licenses and rights granted in the Intellectual
Property Agreement, and the non-exclusive licenses granted prior to the Closing
Date to the licensees listed in Section 3.11(d) of the Seller Disclosure Schedule, no licenses
under the Alcatel Assets for the manufacture, use or sale of the AMMS Products
have been granted, other than (i) customary non-exclusive licenses entered into
in the normal course of business by Sellers or any of their Affiliates (such as,
but not limited to, customer agreements), or (ii) customary non-exclusive
licenses for development purposes included in development collaboration
agreements entered into by Sellers or any of their Affiliates.
3.12 Books and
Records. AMMS
has made and kept (and given Buyer access to) Books and Records and accounts,
which, in reasonable detail, fairly reflect in all material respects the
activities, transactions and dispositions in relation with the
Assets.
3.13 No Brokers or
Finders. No
agent, broker, finder or investment or commercial banker, or other Person or
firm engaged by or acting on behalf of any Seller or its Affiliates in
connection with the negotiation, execution or performance of this Agreement or
the transactions contemplated by this Agreement, is or will be entitled to any
broker’s or finder’s or similar fees or other commissions as a result of this
Agreement or such transactions.
3.14 No Other Agreements to Sell
the Assets. No
Seller nor any of its officers, directors, stockholders or Affiliates has any
commitment or legal obligation, absolute or contingent, to any other Person
other than Buyer to sell, assign, transfer, effect a sale of, or grant an
exclusive license with respect to, any of the Assets (other than non-exclusive
licenses of products or Intellectual Property in the ordinary course of
business), to sell or effect a sale of the capital stock of such Seller, to
effect any merger, consolidation, liquidation, dissolution or other
reorganization of such Seller, or to enter into any agreement or cause the
entering into of an agreement with respect to any of the foregoing.
3.15 Solvency. Immediately
prior to and immediately following the consummation of the purchase of the
Assets by Buyer from Sellers as contemplated by this Agreement and the Ancillary
Agreements, none of the Sellers have been, are or will be insolvent (en état de cessation de
paiements) or subject to any safeguard, bankruptcy or insolvency
proceedings, nor to any other proceedings with regard to the prevention or
resolution of business difficulties nor in any situation likely to result in
such proceedings.
3.16 Purchase Entirely for Own
Account. This
Agreement is made with Sellers in reliance upon Sellers’ representation to
Buyer, which by each Seller’s execution of this Agreement such Seller hereby
confirms, that the Delivered Shares will be acquired for investment for AMMS’
own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof in violation of the Securities Act, and that
AMMS has no present intention of selling, granting any participation in, or
otherwise distributing the same in violation of the Securities
Act. By executing this Agreement, AMMS further represents that it do
not presently have any contract, undertaking, agreement or arrangement with any
person to sell, transfer or grant participations to such person or to any third
person, with respect to any of the Delivered Shares. AMMS was not
been formed for the specific purpose of acquiring the Delivered
Shares.
3.17 Sellers
Qualification. Each
Seller is an accredited investor as defined in Rule 501(a) of Regulation D
promulgated under the Securities Act, is experienced in evaluating companies
such as Buyer, is able to fend for itself in transactions related to the
acquisition of securities such as the ones contemplated by this Agreement, has
such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of its prospective investment in
Buyer, and has the ability to bear the economic risks of the investment,
including but not limited to the loss of its investment. Each Seller
understands that the offering and sale of such securities is being made in
reliance on Rule 506 of Regulation D promulgated under the Securities Act based,
in part, upon the representations, warranties and agreements contained in this
Agreement.
3.18 Residence. Each
Seller’s principal office location is identified in the address of such Seller
set forth in Section 8.2.
3.19 Labor
Matters. Sellers
have informed and consulted, where necessary, relevant employee representatives
prior to the signature of this Agreement.
3.20 Purchase
Price. No
creditor of either Seller, nor any other third party, shall have the right to
make a claim (opposition) against the Buyer
in relation to the Purchase Price being paid to Sellers.
ARTICLE
IV
COVENANTS
AND AGREEMENTS
4.1 Expenses. Each
party hereto shall pay all of its own fees, costs and expenses (including,
without limitation, those of advisors, financial advisors, lawyers or
accountants) incurred by it in connection with the negotiation, preparation,
execution, delivery and performance of this Agreement and the transactions
contemplated hereby.
4.2 Publicity. No
party hereto shall issue any press release or other public statement, with
respect to the existence of this Agreement or the transactions contemplated
hereby, except as may be required by Law (if so required, such press release or
public statement shall be made only after consultation among the parties
hereto), or as consented to by the parties.
4.3 Additional Agreements;
Approvals; Consents. Upon
the terms and subject to the conditions set forth in this Agreement, each of the
parties agrees, both before and after the Closing, to take, or cause to be
taken, all actions, and to do, or cause to be done, and to assist and cooperate
with the other party in doing, all things necessary, proper or advisable to
confirm and further the effectiveness of, in the most expeditious manner
practicable, the transfer of the Assets to Buyer and the other transactions
contemplated by this Agreement. The actions contemplated by this Section 4.3 may include, but are not limited
to: (a) the procurement of any Approvals from all Governmental
Entities and the making of any necessary registrations or filings (including
filings with Governmental Entities) and the taking of all reasonable steps as
may be necessary to obtain an Approval from, or to avoid an action or proceeding
by, any Governmental Entity, (b) giving all notices to, and making all
registrations and filings with third parties, including without limitation
submissions of information requested by Governmental Entities, (c) obtaining all
necessary Permits required to be obtained under applicable Laws, (d) the defense
of any Actions whether judicial or administrative, challenging this Agreement
and the consummation of the transactions contemplated hereby, including seeking
to have any stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed, (e) the execution and delivery of any
additional instruments (including additional instruments conveying or assigning
the Assets) necessary to consummate the transactions contemplated by this
Agreement, (f) using commercially reasonable efforts to acquire the full
ownership of the Designated Licensed Patent and, if successful, transfer the
same to Buyer without further consideration pursuant to an assignment agreement
substantially similar to the assignment agreement set forth on Schedule C to the
Intellectual Property Agreement and (g) the fulfillment of all conditions to
this Agreement. Nothing in this Section 4.3 shall be considered a waiver by Buyer of any
condition to Buyer’s obligation to consummate the transactions contemplated
hereby or of any Seller’s obligations under any section of this Agreement to
have obtained all necessary Approvals of any Governmental Entities or third
parties prior to or on the Closing Date and Buyer expressly reserves all
remedies hereunder relating to any breach by any Seller of any representation or
warranty or covenant in respect hereof. Notwithstanding the
foregoing, Buyer shall not be required to agree to the divestiture of any asset
or the modification of this Agreement in connection with the actions referred to
in clause (a) or clause (b) above.
4.4 Books and Records; Tax
Matters; Tax Returns.
(a) From and
after the Closing Date, to the extent reasonably requested by any party hereto,
each party hereto shall, and shall cause their respective Affiliates to,
cooperate with and make available to the other party, during normal business
hours, all Books and Records, information and employees (without substantial
disruption of employment), as well as, to the extent permitted by the applicable
Laws and regulations, access to, and the cooperation of, the auditors of such
party, retained and remaining in existence after the Closing which are necessary
or useful in connection with any Tax inquiry, audit, investigation or dispute,
the preparation of Tax Returns, the making of any election relating to Taxes,
any litigation or investigation or any other matter requiring any such Books and
Records, information or employees, or access to such auditors, for any
reasonable business purpose. The party requesting any such Books and
Records, information or employees, or access to such auditors, shall bear all of
the out-of-pocket costs and expenses (including, without limitation, attorneys’
fees, but excluding any reimbursement for salaries or benefits) reasonably
incurred in connection with providing such Books and Records, information or
employees, or access to such auditors. Any information obtained
pursuant to this Section 4.4 or pursuant to
any other Section hereof providing for the sharing of information or the review
of any Tax Return or other schedule relating to Taxes shall be subject to
Section 7.3. Each of Buyer and
Sellers shall retain all books and records with respect to Taxes pertaining to
the Assets for a period of at least four (4) years following the Closing
Date.
(b) To the
extent not otherwise provided in this Agreement, Sellers shall be responsible
for and shall promptly pay when due all Property Taxes or Business Tax (taxe professionnelle) levied
with respect to the Assets attributable to the Pre-Closing Tax
Period. All Property Taxes or Business Tax (taxe professionnelle) levied
with respect to the Assets for the Straddle Period shall be borne by
Sellers. Upon receipt of any xxxx for such Property Taxes or Business
Tax (taxe
professionnelle), Buyer shall present a statement to Sellers setting
forth the amount of reimbursement to which Buyer is entitled under this Section
4.4(b) together with
such supporting evidence. Sellers shall pay such amount to Buyer
within ten (10) days after delivery of such statement. In the event
that Buyer makes any payment for which it is entitled to reimbursement under
this Section 4.4(b),
Sellers shall make such reimbursement promptly but in no event later than ten
(10) days after the presentation of a statement setting forth the amount of
reimbursement to which Buyer is entitled along with such supporting evidence as
is reasonably necessary to set the amount of reimbursement.
(c) Sellers
shall promptly notify Buyer in writing upon receipt by any Seller of notice of
any pending or threatened Tax audits or assessments relating to the income,
properties or operations of any Seller that reasonably may be expected to relate
to or give rise to a lien on the Assets or the Business. Each of
Buyer and Sellers shall promptly notify the other in writing upon receipt of
notice of any pending or threatened Tax audit or assessment challenging the
Allocation.
(d) Any
payments made to any party pursuant to Article VI shall constitute an
adjustment of the Purchase Price for Tax purposes and shall be treated as such
by Buyer and Sellers on their Tax Returns to the extent permitted by
Law.
(e) Seller
shall file with the Tax authorities, within the required time limits, a
declaration for the sale of business resulting from the transfer of the Assets,
pursuant to Article 201 of the Xxxxxx Xxxxxxx Tax Code. Such filing
shall start the three-month period provided for by Article 1684 of the Xxxxxx
Xxxxxxx Tax Code. Seller shall provide satisfactory evidence to Buyer
that such filing has been made to the competent authorities within the
aforementioned time limits and shall fully indemnify Buyer from any Damages that
Buyer may suffer as a result of the provisions of Article 1684 of the Xxxxxx
Xxxxxxx Tax Code.
4.5 Notification of Certain
Matters. Sellers
shall give prompt notice to Buyer, and Buyer shall give prompt notice to
Sellers, after becoming aware of (a) the occurrence, or failure to occur,
of any event that would be likely to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
at any time and (b) any failure of Buyer or any Seller, as the case may be,
to comply with or satisfy, in any material respect, any covenant, condition or
agreement to be complied with or satisfied by it under this
Agreement. No such notification shall affect, or be deemed to cure
any breach of, the representations, warranties, covenants and agreements of the
parties or the conditions to their respective obligations
hereunder. The notification obligations of each party set forth in
this Section 4.5 shall expire concurrently with the
expiration of such party’s indemnification obligations set forth in Article VI
herein. Sellers shall also give prompt notice to Buyer of any
Default, or any claim made by, or Action threatened or commenced against, any
Seller.
4.6 Audit
Assistance. From
and after the Closing Date, to the extent reasonably requested by Buyer in
connection with (a) any audit of Buyer’s consolidated financial statements, (b)
any separate presentation to be prepared by Buyer of the financial statements of
the Business (including, without limitation, any such separate presentation of
the Business as a “significant subsidiary” or a “business acquired” within the
meaning of the accounting rules of the Securities and Exchange Commission), or
(c) any presentation to be prepared by Buyer of the pro forma effects of Buyer’s
acquisition of the Business, AMMS shall (i) assist in the
preparation of any such financial statements or pro forma presentation and
(ii) provide any records and other information requested by Buyer in connection
therewith all at the cost and expense of Buyer.
4.7 Investigation by
Buyer. Subject
to the Confidentiality Agreement, from the date hereof through the Closing Date,
each Seller shall, and shall cause its Representatives to, afford the
Representatives of Buyer and its affiliates complete access at all reasonable
times to the Assets for the purpose of inspecting the same, and to the officers,
employees, agents, attorneys, accountants, properties, Books and Records and
Contracts of AMMS, and shall furnish Buyer and its Representatives all data and
information as Buyer or its affiliates, through their respective
Representatives, may reasonably request.
4.8 Conduct of
Business. From
the date hereof through the Closing, each Seller shall not, except as
specifically contemplated by this Agreement or as consented to by Buyer in
writing:
(a) Enter
into, extend, materially modify, terminate or renew any Transferred Contract or
Licensed Right, except in the ordinary course of business;
(b) Sell,
assign, transfer, convey, lease, mortgage, pledge or otherwise dispose of or
encumber any of the Assets, or any interests therein, except in the ordinary
course of business and, without limiting the generality of the foregoing, such
Seller will produce, maintain and sell its products consistent with its past
practices;
(c) Fail to
maintain the Assets in substantially their current state of repair, excepting
normal wear and tear or fail to replace consistent with such Seller’s past
practice inoperable, worn-out or obsolete or destroyed Assets;
(d) Intentionally
do any other act which would cause any representation or warranty of such Seller
in this Agreement to be or become untrue in any material respect;
or
(e) Enter
into any agreement, or otherwise become obligated, to do any action prohibited
hereunder.
4.9 No Solicitation of Other
Proposals. Except
as expressly permitted by the terms of this Agreement, each Seller shall not,
directly or indirectly, take (and such Seller shall not authorize or permit any
of its Representatives or, to the extent within such Seller’s control, other
Affiliates to take) any action to (i) encourage (including by way of furnishing
non-public information), solicit, initiate or facilitate any Takeover Proposal,
(ii) enter into any agreement with respect to any Takeover Proposal or enter
into any agreement, arrangement or understanding requiring such Seller to
abandon, terminate or fail to consummate the Asset Sale or any other transaction
contemplated by this Agreement, or (iii) participate in any way in
discussions or negotiations with, or furnish any information to, any Person in
connection with, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or could reasonably be expected to lead
to, any Takeover Proposal.
4.10 Business
Transition.
(a) AMMS will
maintain a team of senior executives of AMMS (the “Transition Team”) at
AMMS’ headquarters in Annecy, France, for the purpose of facilitating the
transition of the Business to Buyer for a period of six (6) months after the
Closing Date (the “Transition Period”).
The Transition Team shall initially consist of the individuals named in Exhibit
B attached hereto. Initial participation levels shall be set forth on
Exhibit
B attached hereto. Team membership and level of participation during the
Transition Period may be changed by mutual agreement of the
Parties. AMMS shall also be allowed to replace any member of the
Transition Team at its convenience in the event of temporary non-availability,
dismissal for misconduct or resignation. In such case, AMMS shall to
the extent reasonably possible, provide for a replacement with equivalent
experience and competencies. Expenses related to the formation and
maintenance of the Transition Team during the Transition Period, including,
salaries, benefits, and overhead shall be borne solely by AMMS; provided, however, that travel, food
and lodging outside France requested by Buyer shall be borne by
Buyer. Upon written notice to AMMS, Buyer shall have the right to
extend the Transition Period (the “Extended Transition
Period”) on a month-to-month basis for a period of no more than three (3)
months beyond the expiration of the initial Transition Period. Buyer
shall bear the direct costs associated with the Transition Team during the
Extended Transition Period, in accordance with the budget set forth in Exhibit
B attached hereto. The budget is exclusive of VAT and any customs duties,
which as the case may be, shall be borne by Buyer in addition to the
budget.
(b) At
Buyer’s request, AMMS shall provide sufficient facilities and personnel to Buyer
to enable Buyer to perform applications and/or process development activities
related to the Business for a period not to exceed three (3) months following
the Closing Date. Buyer shall bear the direct costs associated with
any such applications and/or process development activities, including salaries,
travel expenses and the consumables costs of such activities in accordance with
the budget set forth in Exhibit
C attached hereto.
4.11 Inventory. Until
the expiration of the rights and obligations under Section 4.13 of this Agreement, Buyer may purchase, as and
when needed by Buyer, from AMMS’ existing inventory of subassemblies and
systems, the initial list of which is stated in Exhibit
D at a price equal to eighty percent (80%) of AMMS’ net book value of
such inventory at the time of such purchase, as reported in AMMS’ most recent
financial statements. This list will be updated by AMMS from time to time and
provided in writing to Buyer.
4.12 Appointment of
Director. Until
the later of (a) the termination, by mutual agreement of Buyer and AMMS, or
expiration of the rights and obligations under Section 4.13 and (b) when the Alcatel Group beneficially owns,
directly or indirectly, less than five percent (5%) of the Total Shares
Outstanding of Buyer:
(a) Buyer
shall take such actions as shall be necessary to cause a designee (a
“Designee”),
who shall be an executive of AMMS or AVTF, to be appointed to Buyer’s board of
directors, effective as of the Closing Date, to serve until the annual meeting
of Buyer’s stockholders to be held in 2008. The initial Designee shall be Xx.
Xxxxxxx Xxxxxxx.
(b) Subject
to fiduciary duties under applicable Law, Buyer shall take such actions as shall
be reasonably necessary to cause a Designee to be nominated for election to
Buyer’s board of directors at the annual meeting of Buyer’s stockholders to be
held in 2008 and each subsequent annual meeting thereafter.
(c) AMMS
shall have the right to remove such Designee at any time, by delivery of written
notice to Buyer. Buyer shall have the right to remove such Designee
for cause in accordance with applicable Law. In the case of a vacancy
for any reason (including by reason of death, resignation, retirement or removal
pursuant to the preceding sentence), the vacancy shall be filled with a
replacement Designee selected by AMMS or AVTF and Buyer shall take such actions
as shall be necessary to cause such replacement Designee to be appointed to
Buyer’s board of directors.
4.13 Customer
Services. Until
the earlier of (i) the third anniversary of the Closing Date and (ii)
termination by mutual agreement of Buyer and AMMS, AMMS and Buyer shall agree to
the following:
(a) AMMS Installed Base Customer
Services.
(i) Subject
to Section 4.13(a)(ii) and 4.13(d) hereof, AMMS will continue, after the Closing
Date, to be in charge of and responsible for the provision of the Customer
Services to AMMS Installed Base Customers, as these Customer Services were
conducted by AMMS prior to the Closing.
(ii) Until the
earlier of (A) the third anniversary of the Closing Date or (B) the purchase by
Buyer of Seller’s Customer Services business as provided in Section 4.13(d) hereof, Buyer
shall not solicit (except in connection with a proposed sale by Buyer of an AMMS
Product or other Buyer product to such AMMS Installed Base Customer on or after
the Closing Date) nor shall it provide Customer Services to any AMMS Installed
Base Customer, unless either (x) an AMMS Installed Base Customer purchases a
system or module directly from Buyer, or (y) an AMMS Installed Base Customer,
either directly to AMMS or through Buyer, specifically requests that Buyer
provide such Customer Services. Any such request shall be reviewed
and approved by Seller in a timely manner and shall not be unreasonably
denied. In addition, Seller may request in writing that Buyer assume
the provision of Customer Services to any AMMS Installed Base Customer and Buyer
shall agrees to use its commercially reasonable efforts to do so, provided that
if Buyer reasonably determines that it is not in the best interests of Buyer to
assume such Customer Services, Buyer shall not be obligated to do so. For the
avoidance of doubt, nothing in this Section 4.13(a)(ii) shall obligate
Buyer to purchase Customer Services from AMMS for Products sold by Buyer to AMMS
Installed Base Customers on or after the Closing Date, nor restrict Buyer from
providing services to any customers that are not identified on Schedule
9.2(b).
(iii) Upon
receipt of Buyer’s written notice, AMMS shall provide Customer Services to the
AMMS Installed Base Customers with respect to Products sold by Buyer to AMMS
Installed Base Customers on or after the Closing Date, such Customer Services to
be performed by AMMS at Buyer’s expense in accordance with the service charges
schedule attached hereto as Exhibit
H and in
accordance with AMMS standard terms and conditions. In any case where
AMMS is providing Customer Services, AMMS agrees to perform such Customer
Services with reasonable care and in accordance with AMMS’ best practices, which
in no case shall be lower than the standards AMMS applies in connection with the
Business as it is being conducted as of the Closing Date.
(b) AMMS Final Test
Services. Until the expiration of the six (6)-month period
immediately following the Closing Date, upon receipt of Buyer’s written notice,
AMMS shall provide Final Test Services for Products sold or to be sold by Buyer
to AMMS Installed Base Customers and/or existing or new customers of
Buyer. Such Final Test Services shall be performed at Buyer’s expense
in accordance with the service charges schedule attached hereto as Exhibit
H and in
accordance with AMMS standard terms and conditions. Such Final Test
Services shall be performed with reasonable care and in accordance with AMMS’
best practices, which in no case shall be lower than the standards AMMS applies
in connection with the Business as it is being conducted as of the Closing
Date.
(c) No
Warranty. With respect to Section 4.13(a)(i), no warranty
whatsoever is given by AMMS that an AMMS Installed Base Customer will remain
with AMMS or that AMMS will continue to serve such AMMS Installed Base
Customer if AMMS considers, in its absolute and reasonable discretion, that such
AMMS Installed Base
Customer is not fulfilling its obligations under such AMMS Installed Base
Customer’s contract with AMMS. In the event that AMMS refuses or
discontinues providing Customer Services to any AMMS Installed Base Customer,
Seller shall notify Buyer in writing within ten (10) business days.
(d) Purchase
Option. Buyer, at its sole discretion and upon delivery of
written notice to AMMS on or prior to the third anniversary of the Closing Date,
shall have the option to purchase all or a portion of the Customer Services from
AMMS, at a cash price to be determined by Buyer and AMMS.
ARTICLE
V
CONDITIONS
TO THE CLOSING
5.1 Conditions to the Closing
Relating to Buyer. Buyer’s
obligation to consummate the transactions contemplated hereby is subject to the
fulfillment, prior to or at the Closing Date, of each of the following
conditions:
(a) Representations, Warranties
and Covenants. All representations and warranties of Sellers
contained in this Agreement and qualified by the words “material,” “material
adverse effect” and similar phrases shall be true and correct in all respects,
and all representations and warranties of Sellers contained in this Agreement
that are not so qualified shall be true and correct in all material respects, in
each case, at and as of the date of this Agreement and at and as of the Closing
Date, except for those representations and warranties that speak as of a
particular date, which will continue to be true and correct as of such date, and
Sellers shall have performed and satisfied in all material respects all
agreements and covenants required hereby to be performed by it prior to or on
the Closing Date.
(b) Regulatory Consents,
Authorizations, etc. All consents, authorizations, Orders and
Approvals of, and filings and registrations with any Governmental Entity or any
other Person which are required for or in connection with the execution and
delivery of this Agreement and the consummation by each party hereto of the
transactions contemplated hereby, shall have been obtained or made.
(c) Litigation; Other
Events. No Law shall have been enacted, entered, issued,
promulgated or enforced by any Governmental Entity, nor shall any Action be
pending or threatened, which questions the validity or legality of, or prohibits
or restricts or, if successful, would prohibit or restrict, the transactions
contemplated by this Agreement or would not permit the Business as presently
conducted to continue unimpaired following the Closing Date or which would have
any material adverse effect on the right or ability of Buyer to own, operate,
possess or transfer the Assets after the Closing.
(d) Deliveries. The
deliveries referred to in Section 1.12(a) shall
have been made.
(e) Material
Changes. Since May 31, 2008, there shall not have been any
material adverse change to the condition of the Assets.
(f) Conveyancing Documents;
Release of Encumbrances. Each Seller shall have executed and
delivered each of the applicable documents described in Section 1.12 hereof so as to effect the transfer and
assignment to Buyer of all right, title and interest in and to the Assets and
each Seller shall have filed (where necessary) and delivered to Buyer all
documents necessary to release the Assets from all Encumbrances which documents
shall be in a form reasonably satisfactory to Buyer.
5.2 Conditions to the Closing
Related to Sellers. Each
Seller’s obligation to consummate the transactions contemplated hereby is
subject to the fulfillment, prior to or at the Closing Date, of each of the
following conditions:
(a) Representations, Warranties
and Covenants. All representations and warranties of Buyer
contained in this Agreement and qualified by the words “material,” “material
adverse effect” and similar phrases shall be true and correct in all respects,
and all representations and warranties of Buyer contained in this Agreement that
are not so qualified shall be true and correct in all material respects, in each
case, at and as of the date of this Agreement and at and as of the Closing Date,
except for those representations and warranties that speak as of a particular
date, which will continue to be true and correct as of such date, and Buyer
shall have performed and satisfied in all material respects all agreements and
covenants required hereby to be performed by it prior to or on the Closing
Date.
(b) Regulatory Consents,
Authorizations, etc. All consents, authorizations, Orders and
Approvals of, and filings and registrations with any Governmental Entity or any
other Person which are required for or in connection with the execution and
delivery of this Agreement and the consummation by each party hereto of the
transactions contemplated hereby, shall have been obtained or made.
(c) Litigation; Other
Events. No Law shall have been enacted, entered, issued,
promulgated or enforced by any Governmental Entity, nor shall any Action be
pending or threatened, which questions the validity or legality of, or prohibits
or restricts or, if successful, would prohibit or restrict, the transactions
contemplated by this Agreement.
(d) Deliveries. The
deliveries referred to in Section 1.12(b) shall
have been made.
ARTICLE
VI
INDEMNITY
6.1 Survival of
Indemnity. The
representations and warranties by Sellers set forth in Article III hereof shall
survive eighteen (18) months after the Closing Date, provided that the
representations and warranties contained in Section 3.7 (Tax Matters) and covenants and agreements
relating to Taxes shall survive until the expiration of the applicable statute
of limitations plus ninety (90) days, and the covenants and agreements of
Sellers set forth in this Agreement shall survive in accordance with their terms
or, if no term is indicated, for eighteen (18) months after the Closing
Date. A Claim with respect to a breach of a representation or
warranty or a breach or nonperformance of a covenant or agreement may be brought
only prior to the applicable expiration date.
6.2 Indemnification by
Sellers.
(a) Sellers
shall indemnify, save and hold harmless Buyer, its Affiliates and their
respective Representatives from and against any and all costs, losses, Taxes,
Liabilities, obligations, damages, lawsuits, judgments, settlements, awards,
deficiencies, claims, demands, expenses (including reasonable costs of
investigation and reasonable attorneys’ fees and expenses), interest, fines,
penalties, costs of mitigation, and other losses actually paid to third parties
(herein, “Damages”), incurred
in connection with, arising out of, resulting from or incident to (i) any breach
of a representation or warranty of any Seller contained in this Agreement; (ii)
any breach of any covenant of any Seller contained in this Agreement; (iii) the
Ancillary Agreements; (iv) any Excluded Asset or Excluded Liability; or (v) any
claim related to, or any Action or Order resulting from, any matter described on
Section 3.11(b) of the Seller Disclosure Schedule
and attributable to any AMMS Product sold on or after to the Closing Date
regardless of how such Damages may arise (whether by joinder or
otherwise). For the avoidance of doubt, in no case shall this Section
6.2 be applicable for any Damages arising out of or
related to Assumed Liabilities. The term “Damages” as used in this Article VI is
not limited to matters asserted by third parties against any Seller or Buyer,
but includes Damages incurred or sustained by any Seller or Buyer in the absence
of third party claims. Payments by Buyer of amounts for which Buyer
is indemnified hereunder shall not be a condition precedent to
recovery. Sellers’ obligation to indemnify Buyer shall not limit any
other rights, including without limitation rights of contribution, which any
Party may have under statute or common Law.
(b) Sellers
shall not be liable for any Claims under Section 6.2(a) until the
aggregate amount due in respect of such Claims exceeds $50,000 (the “Threshold”), provided
only breaches giving rise to Damages of not less than $10,000 shall be taken
into account in computing such Threshold. If such aggregate amount
exceeds $50,000, then Sellers shall be, jointly and severally, only liable for
the amount of such Claims exceeding the Threshold, provided, however, in no event shall
Sellers’ liability under Section 6.2(a) exceed $1,000,000; provided, however, the
foregoing limitations of liability in this Section 6.2(b) shall not be
applicable to Damages arising out of or related to Excluded Assets or Excluded
Liabilities.
(c) By
exception to all provisions of Section 6.2(b) above, Sellers shall be liable for any Claims
under Section 6.2(a)
above which are related directly or indirectly to any breach of Sellers’
representation under Section 3.19 and for the
consequences of the application by a judge of the provisions related to the
European Acquired Rights Directive (2001/23/EC) and any applicable national
implementing legislation of any Member State of the European Union, in
particular Articles L1224-1 and L2261-14 of the French Labor Code, provided a claim is made
against Buyer or AMMS or its respective Affiliates within twelve (12) months
from the Closing Date.
(d) Regardless
of any disclosure thereof or in connection therewith to Buyer and by exception
to all provisions of Section 6.2(b) above, Sellers shall indemnify and hold Buyer
harmless from and against any and all Damages suffered by Buyer resulting from
any claim related to, or any Action or Order resulting from, any matter
described on (i) Section 3.10 of the Seller
Disclosure Schedule regardless of how such Damages may arise (whether by joinder
or otherwise), or (ii) Section 3.11(b) of the
Seller Disclosure Schedule that is attributable to any AMMS Product sold before
the Closing Date regardless of how such Damages may arise (whether by joinder or
otherwise) and provided such claim is brought within eighteen (18) months of the
Closing Date; provided,
however, that Sellers’ indemnity obligations under this Section 6.2(d) shall not be
applicable to the extent such claim, Action or Order is based on an infringement
or other claim attributable to Buyer’s modification of any AMMS
Product.
(e) Notwithstanding
anything to the contrary in this Agreement or in the Ancillary Agreements, in no
event shall Sellers be liable for indirect or consequential damages (to include,
without limitation, loss of profits or loss of revenues but it being understood
that, for purposes of Section 6.2(c) hereof, salaries, compensation or other employment
benefits shall not be considered indirect or consequential damages and shall be
comprised in Damages). All Claims shall be measured net of any insurance
recoveries received by Buyer in respect of such Claim.
6.3 Indemnification by
Buyer.
(a) The
representations and warranties of Buyer set forth herein in Article II hereof
shall survive until the eighteen (18) month anniversary of the Closing
Date. Buyer shall indemnify and save and hold harmless Sellers, its
Affiliates and their Representatives from and against any and all Damages
incurred in connection with, arising out of, resulting from or incident to (i)
any breach of any representation or warranty made by Buyer contained in this
Agreement; (ii) any breach of any covenant made by Buyer contained in this
Agreement; (iii) the Ancillary Agreements; or (iv) from and after the Closing,
any Assumed Liability. For the avoidance of doubt, in no case shall
this Section 6.3 be applicable for any Damages
arising out of or related to Excluded Assets or Excluded Liabilities. Payments
by a Seller of amounts for which such Seller is indemnified hereunder shall not
be a condition precedent to recovery. Buyer’s obligation to indemnify
Sellers shall not limit any other rights, including without limitation rights of
contribution, which any Party may have under statute or common Law.
(b) Buyer
shall not be liable for any Claims under Section 6.3(a) until the aggregate amount due in respect of
such Claims exceeds Threshold, provided only breaches giving rise to Damages of
not less than $10,000 shall be taken into account in computing such
Threshold. If such aggregate amount exceeds $50,000, then Buyer shall
be only liable for only the amount of such Claims exceeding the Threshold, provided, however, in no event shall
Buyer’s liability under Section 6.3(a) exceed
$1,000,000; provided,
however, the foregoing limitations of liability in this Section 6.3(b) shall not be applicable to Damages arising out
of or related to Assumed Liabilities.
(c) Notwithstanding
anything to the contrary in this Agreement or in the Ancillary Agreements, in no
event shall Buyer be liable for indirect or consequential damages (to include,
without limitation, loss of profits or loss of revenues). All Claims shall be
measured net of any insurance recoveries received by Seller in respect of such
Claim.
6.4 Determination of
Indemnification.
The amount of any indemnification
payable hereunder on account of Damages shall be determined after reduction on
account of:
(a) if and to
the extent that the relevant Damages are due to a Party’s
negligence;
(b) if and to
the extent that a Party or any of its Affiliate has received recovery for the
relevant Damages from any other Person (including under any insurance policy);
and
(c) if and to
the extent that the relevant Damages arise or is increased as a result of any
voluntary act or omission of a Party after the Closing.
6.5 Procedure.
(a) Defense of
Claims. If a claim for Damages (a “Claim”) is to be made
by a Party entitled to indemnification (“Indemnified Party”)
hereunder against the Party from whom indemnification is sought (the “Indemnifying Party”),
the Party claiming such indemnification shall, subject to this Section 6.5, give written notice (a “Claim Notice”) to the
Indemnifying Party as soon as practicable after the Party entitled to
indemnification becomes aware of any fact, condition or event which may give
rise to Damages for which indemnification may be sought under this Section 6.5. If any lawsuit or enforcement action
is filed against any Party entitled to the benefit of indemnity hereunder,
written notice thereof shall be given to the Indemnifying Party as promptly as
practicable (and in any event within fifteen (15) calendar days after the
service of the citation or summons). The failure of any Indemnified
Party to give timely notice hereunder shall not affect rights to indemnification
hereunder, except to the extent that the Indemnifying Party demonstrates actual
damage caused by such failure. After such notice, if the Indemnifying
Party shall acknowledge in writing to the Indemnified Party that the
Indemnifying Party shall be obligated under the terms of its indemnity hereunder
in connection with such lawsuit or action, then the Indemnifying Party shall be
entitled, if it so elects at its own cost, risk and expense, (i) to take control
of the defense and investigation of such lawsuit or action, (ii) to employ and
engage attorneys of its own choice to handle and defend the same unless the
named parties to such action or proceeding include both the Indemnifying Party
and the Indemnified Party and the Indemnified Party has been advised in writing
by counsel that there may be one or more legal defenses available to such
Indemnified Party that are different from or additional to those available to
the Indemnifying Party, in which event the Indemnified Party shall be entitled,
at the Indemnifying Party’s cost, risk and expense, to separate counsel of its
own choosing, and (iii) to compromise or settle such Claim, which compromise or
settlement shall be made only with the written consent of the Indemnified Party,
such consent not to be unreasonably withheld; provided, however, that this sentence
shall not apply to Claims relating to Taxes. If the Indemnifying
Party fails to assume the defense of such Claim within fifteen (15) calendar
days after receipt of the Claim Notice, the Indemnified Party against which such
Claim has been asserted will (upon delivering notice to such effect to the
Indemnifying Party) have the right to undertake, at the Indemnifying Party’s
cost and expense, the defense, compromise or settlement of such Claim on behalf
of and for the account and risk of the Indemnifying Party. In the
event the Indemnified Party assumes the defense of the Claim, the Indemnified
Party will keep the Indemnifying Party reasonably informed of the progress of
any such defense, compromise or settlement. The Indemnifying Party
shall be liable for any previously approved settlement of any action effected
pursuant to and in accordance with this Section 6.5
and for any final judgment (subject to any right of appeal), and the
Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party
from and against any Damages by reason of such settlement or
judgment.
(b) Cooperation. The
Indemnified Party shall cooperate in all reasonable respects with the
Indemnifying Party and such attorneys in the investigation, trial and defense of
such lawsuit or action and any appeal arising therefrom; provided, however, that the Indemnified
Party may, at its own cost, participate in the investigation, trial and defense
of such lawsuit or action and any appeal arising therefrom. For the
avoidance of doubt, nothing contained in this Section 6.5(b) shall affect the
Indemnified Party’s right to employ and engage separate counsel in accordance
with Section 6.5(a)(ii). The Parties shall cooperate with
each other in any notifications to insurers.
(c) Equitable Relief; No
Waiver. Nothing in this Agreement shall (i) limit the right of
any Party to seek specific performance of, or equitable relief with respect to,
another Party with respect to a breach of any covenant or agreement set forth in
this Agreement or (ii) be deemed a waiver by any Party to this Agreement of any
right or remedy which such Party may have at Law or in equity based on any claim
of fraud.
6.6 No
Set-off. Buyer
and its Affiliates are not authorized at any time without the prior written
consent of AMMS, and Sellers and its Affiliates are not authorized at any time
without the prior written consent of Buyer, to set off any amounts due or which
may become due hereunder or under any agreement entered into in connection with
this Agreement or the Ancillary Agreements or the transactions contemplated
hereby or thereby, against any obligations which may become due under this
Article VI.
ARTICLE
VII
NON-COMPETE
& NON-DISCLOSURE
7.1 Sellers
Non-Compete.
(a) As
a material inducement to Buyer’s willingness to enter into and perform this
Agreement and to purchase the Assets and for the consideration to be paid or
provided to Sellers in connection with such purchase, each Seller agrees that it
and its controlled Affiliates will not Compete (as defined below), at any time
for three (3) years
after the expiration of the obligations set forth in Section 4.13 hereof (such period, the “Non-Competition
Period”). For purposes of this Section 7.1, “Compete” means
directly or indirectly, for its or own benefit or as agent for another,
participate in the ownership of (except as the passive holder of less than five
percent (5%) of the outstanding shares of any class of a corporation whose stock
is listed on any national or regional securities exchange), or management or
control of, any present or future business enterprise that competes with the
Business, or carry on activities competing with the Business, as the same was
conducted by AMMS as of the Closing Date. For the avoidance of doubt,
immediately prior to the Closing Date, AMMS shall cease all sales of AMMS
Products to any AMMS Installed Base Customer or any other Person; provided, however, that this Article
VII is not intended to prohibit AMMS or Buyer from benefiting from its rights or
performing its obligations pursuant to this Agreement or the Ancillary
Agreements, including without limitation, Section 4.13 hereof, and provided that this
Article VII is not intended to prevent any Affiliate of the Seller from carrying
on activities with competitors of Buyer, to the extent that those activities
conducted by such Affiliate of Seller do not compete with the
Business.
(b) Sellers
acknowledge and agree that the provisions of this Section 7.1 have been specifically negotiated and carefully
tailored with a view to preventing the serious and irreparable injury that Buyer
will suffer in the event any Seller Competes during the Non-Competition Period,
and is intended to assure that Buyer receives the full value of the Assets and
the Business, including its goodwill, in consideration of the Purchase Price
paid by Buyer hereunder. Sellers further acknowledge that a breach by
any Seller of this Section 7.1 will cause
irreparable injury and damage to Buyer, the exact amount of which would be
difficult to ascertain, and that the remedies at Law for any such breach would
be inadequate. Accordingly, if any Seller breaches this Section 7.1, Buyer shall be entitled to injunctive relief
without posting bond or other security and Sellers shall not object thereto on
the grounds that money damages would be adequate; provided, however, that Buyer may
elect, at its option, to seek damages instead of injunctive relief by virtue of
such breach.
(c) In the
event that, despite the express agreement of Buyer and Sellers, any provision of
this Section 7.1 shall be determined by any court
or other tribunal of competent jurisdiction to be unenforceable for any reason
whatsoever, the parties agree that this Section 7.1
shall be interpreted to extend only over the maximum period of time for which it
may be enforceable, and/or over the maximum geographical areas as to which it
may be enforceable, and/or over the broadest competitive activities as to which
it may be enforceable, and/or to the maximum extent in any and all other
respects as to which it may be enforceable, all as determined by such court or
tribunal.
7.2 Mutual
Non-Compete. Each
of the Parties agrees that it and its controlled Affiliates will not Compete in
the Field of Services (as defined below), at any time during the Non-Competition
Period. For purposes of this Section 7.2, “Compete in the Field of
Services” means directly or indirectly, for such Party or its own benefit
or as agent for another, participate in the ownership of (except as the passive
holder of less than five percent (5%) of the outstanding shares of any class of
a corporation whose stock is listed on any national or regional securities
exchange), or management or control of any present or future business enterprise
that competes with the other Party in the Field of Services as the same may be
conducted by the other Party and its Affiliates as of the Closing
Date. For the avoidance of doubt, this Article VII is not intended
(i) to prohibit Buyer from conducting the Business, including but not limited to
selling AMMS Products and providing Customer Services pursuant to Section 4.13 to the AMMS Installed Base Customers or any other
Person or prohibit AMMS or Buyer from benefiting from its rights or performing
its obligations pursuant to this Agreement or the Ancillary Agreements,
including without limitation providing Customer Services pursuant to Section 4.13 hereof and (ii) to prevent any Affiliate of the
Seller from conducting activities with competitors of Buyer, to the extent that
those activities do not compete in the Field of Services.
7.3 Non-Disclosure. In
addition to AMMS’ obligations under the Confidentiality Agreement, at all times
from and after the Closing Date, Sellers shall keep secret and retain in
strictest confidence and shall not, except with the express prior written
consent of Buyer, directly or indirectly disclose, communicate or divulge to any
Person, or use for the benefit of any Person, any confidential or proprietary
information or material relating to Buyer’s or Seller’ operations or businesses
(including, but not limited to, the Business) which it may have learned as an
owner, stockholder, employee, officer or director of any Seller or in connection
with the negotiation of this Agreement. Confidential or proprietary
information or material includes, without limitation, the following types of
information or material regarding Buyer, its direct or indirect parents,
Affiliates or related companies: proprietary data processing systems and
software; corporate information, including contractual arrangements, plans,
strategies, tactics, policies, resolutions, patent, copyright, trademark, and
trade name applications, designs, technologies, inventions, know-how, and any
litigation or negotiations; marketing information and methods, including sales
or product plans, products, product lines, proposed products, pricing policies,
fees, strategies, methods, vendors, customers, customer lists, prospects, or
market research data; financial information, including cost and performance
data, debt arrangements, equity structures, investors and holdings; operational
and scientific information, including trade secrets, technical information, and
personnel information, including personnel lists, resumes, personnel data, terms
of employment agreements, organizational structure, and performance evaluations
(collectively, “Proprietary
Information”). The restriction contained in the preceding
sentence shall not apply to any Proprietary Information to the extent that (a)
such information is or hereafter becomes generally available to the public
without a breach of this Agreement, (b) disclosure is made to a Governmental
Entity where it is necessary or appropriate to disclose such information to such
Governmental Entity having jurisdiction over the parties, or (c) disclosure is
otherwise required by Law. To avoid confusion, the restrictions set
forth in this Section 7.3 apply to any disclosure
by any Seller of any information related to the terms of or existence of, or
matters discussed in the course of negotiating, this Agreement.
ARTICLE
VIII
MISCELLANEOUS
8.1 Termination.
(a) Termination Prior To
Closing. This Agreement may be terminated at any time prior to
Closing:
(i) by mutual
written consent of Buyer and Sellers;
(ii) by Buyer
or Sellers if the Closing shall not have occurred on or before September 30,
2008 (the “Outside
Date”); provided, however, that this provision
shall not be available to Buyer if Sellers have the right to terminate this
Agreement under clause (iv) of this Section 8.1(a), and this provision shall not be available to
Sellers if Buyer has the right to terminate this Agreement under clause (iii) of
this Section 8.1(a);
(iii) by Buyer
if there is a material breach of any representation or warranty set forth in
Article III hereof or any covenant or agreement to be complied with or performed
by any Seller pursuant to the terms of this Agreement or the failure of a
condition set forth in Section 5.1 to be satisfied
(and such condition is not waived in writing by Buyer) on or prior to the
Closing Date, or the occurrence of any event which results or would result in
the failure of a condition set forth in Section 5.1
to be satisfied on or prior to the Closing Date; provided that Buyer may not
terminate this Agreement prior to the fifth day following the occurrence of such
failure if such failure is capable of being cured and such Seller is using
reasonable best efforts to cure such failure; or
(iv) by
Sellers if there is a material breach of any representation or warranty set
forth in Article II hereof or of any covenant or agreement to be complied with
or performed by Buyer pursuant to the terms of this Agreement or the failure of
a condition set forth in Section 5.2 to be
satisfied (and such condition is not waived in writing by Sellers) on or prior
to the Closing Date, or the occurrence of any event which results or would
result in the failure of a condition set forth in Section 5.2 to be satisfied on or prior to the Closing Date;
provided that Sellers
may not terminate this Agreement prior to the fifth day following the occurrence
of such failure if such failure is capable of being cured and Buyer is using
reasonable best efforts to cure such failure.
(b) In the Event of Termination
Prior To Closing. In the event of termination prior to Closing
of this Agreement:
(i) each
Party will redeliver all documents, work papers and other material of the other
party relating to the transactions contemplated hereby, whether so obtained
before or after the execution hereof, to the party furnishing the
same;
(ii) the
provisions of the Confidentiality Agreement shall continue in full force and
effect; and
(iii) no Party
hereto shall have any Liability to the other Parties to this Agreement,
except:
(B) for any
willful breach of this Agreement occurring prior to the proper termination of
this Agreement.
The
foregoing provisions of this Section 8.1(b)(iii) shall not limit
or restrict the availability of specific performance or other injunctive relief
to the extent that specific performance or such other relief would otherwise be
available to a party hereunder. The parties acknowledge that the
provisions of this Section 8.1 are an integral part
of this Agreement and that without these provisions the parties would not enter
into this Agreement.
(c) Termination of Agreement
After Closing. This Agreement may be terminated at any time
after Closing:
(i) by mutual
written consent of Buyer and Sellers;
(ii) by Buyer
if there is a material breach of any covenant or agreement to be complied with
or performed by any Seller pursuant to the terms of this Agreement after the
Closing Date, including but not limited to Section 4.13 hereof; provided that Buyer may not
terminate this Agreement prior to the fifth day following the occurrence of such
failure if such failure is capable of being cured and such Seller is using
reasonable best efforts to cure such failure; or
(iii) by AMMS
if there is a material breach of any covenant or agreement to be complied with
or performed by Buyer pursuant to the terms of this Agreement after the Closing
Date, including but not limited to Section 4.13 hereof, provided that Sellers may not
terminate this Agreement prior to the fifth day following the occurrence of such
failure if such failure is capable of being cured and Buyer is using reasonable
best efforts to cure such failure.
8.2 Notices. All
notices and other communications provided for herein shall be in writing and
shall be deemed to have been duly given when delivered personally or when sent
by telex, telecopy or other electronic or digital transmission method
(including, but not limited to, in portable document format by electronic mail)
or three (3) business days after being mailed by registered or certified mail,
return receipt requested, postage prepaid, to the party to whom it is directed
or one (1) business day after being sent via a nationally recognized courier
service for next business day delivery, to the party to whom it is
directed:
If to
Buyer, to:
Tegal
Corporation
0000
Xxxxx XxXxxxxx Xxxxxxxxx
Xxxxxxxx,
XX 00000
Attention: Xxxxxx
X. Xxxx, Chairman, President & Chief
Executive Officer
Facsimile: x0.000.000.0000
With
copies to:
Xxxxxx
& Xxxxxxx LLP
000 Xxxxx
Xxxxx
Xxxxx
Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx
Xxxxxxxx
Facsimile: x0.000.000.0000
If to
Sellers, to:
Alcatel
Micro Machining Systems
00,
xxxxxx xx Xxxxxx – BP 2069
74009
Annecy Cedex, France
Attention: Xxxxxxx
Xxxxxxx, President
Facsimile: x00(0).00.00.00.00
and
Alcatel
Lucent
Legal
Department
00, xxx
Xx Xxxxxx 00000 Xxxxx, Xxxxxx
Attention:
Xxxxxx XXXX
Facsimile:
x00 (0).00.00.00.00
or for
any party, at such other address as such party shall have specified in writing
to each of the others in accordance with this Section 8.2.
8.3 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but such counterparts together shall constitute one and the
same instrument.
8.4 Section
Headings. The
section headings of this Agreement are for convenience of reference only and
shall not be deemed to limit or affect any of the provisions
hereof.
8.5 Amendments; No
Waivers.
(a) Any
provision of this Agreement may be waived or amended if, and only if, such
amendment or waiver is in writing and signed by each of the parties
hereto.
(b) No
failure by any party hereto to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement, or to exercise any
right or remedy consequent upon a breach hereof, shall constitute a waiver of
any such breach or any other covenant, duty, agreement or condition
hereof.
8.6 Entire Agreement; No
Assignment. This
Agreement (including the Exhibits hereto, Seller Disclosure Schedule and any
amendments hereto), the Ancillary Agreements and the Confidentiality Agreement
(a) constitute the entire agreement and understandings of the parties
hereto and supersedes all prior agreements and understandings, both written and
oral, among the parties hereto with respect to the subject matter hereof
including, without limitation, the letter of intent dated June 6, 2008,
(b) are not intended to confer upon any other Person any rights or remedies
hereunder, and (c) this Agreement shall not be assigned, by operation of
Law or otherwise prior to the Closing. In the case of any
conflict between this Agreement and the xxxx of sale to be delivered
by Sellers to Buyer in accordance with Section 1.12(a)(ii) of this Agreement, the terms of this
Agreement shall prevail.
8.7 No Third Party
Beneficiaries. Neither
any Seller nor Buyer intends for this Agreement or the Ancillary Agreements to
create any rights or obligations except as between Sellers and Buyer, and no
other Person shall be treated as third-party beneficiaries hereunder or
thereunder.
8.8 Governing
Law. This
Agreement shall be governed by and construed in accordance with the Laws of the
State of New York (without regard to the choice of Law provisions
thereof).
8.9 Severability. If
it is determined by a court of competent jurisdiction that any provision of this
Agreement is invalid under applicable Law, such provision shall be ineffective
only to the extent of such invalidity, without invalidating the remainder of
this Agreement.
8.10 Cumulative
Remedies. All
rights and remedies of either party hereto are cumulative of each other and of
every other right or remedy such party may otherwise have at Law or in equity,
and the exercise of one or more rights or remedies shall not prejudice or impair
the concurrent or subsequent exercise of other rights or remedies.
8.11 Arbitration. THE
PARTIES HERETO AGREE THAT ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR BREACH THEREOF (“DISPUTE”), SHALL BE
SUBJECT TO A MANDATORY PERIOD OF THIRTY (30) DAYS DURING WHICH THE PARTIES SHALL
(I) EACH APPOINT ONE OR MORE REPRESENTATIVES AND (II) THE REPRESENTATIVES SHALL
MEET IN A TIMELY MANNER FOR THE PURPOSE OF ATTEMPTING TO RESOLVE THE
DISPUTE. THE REPRESENTATIVES SHALL NEGOTIATE IN GOOD FAITH TO RESOLVE
THE DISPUTE WITHOUT RESORT TO FORMAL PROCEEDINGS. DURING THE COURSE
OF SUCH NEGOTIATIONS, THE PARTIES SHALL COMPLY WITH ALL REASONABLE REQUESTS FOR
ACCESS TO RELEVANT INFORMATION. FORMAL PROCEEDINGS FOR THE
ARBITRATION OF SUCH DISPUTE MAY NOT BE COMMENCED UNTIL THE EXPIRATION OF THE
FOREGOING MANDATORY THIRTY- (30)-DAY PERIOD. BOTH PARTIES SHALL
CONTINUE TO PERFORM THEIR RESPECTIVE OBLIGATIONS HEREUNDER DURING THE
NEGOTIATIONS BY REPRESENTATIVES ATTEMPTING TO RESOLVE THE
DISPUTE. FOLLOWING THE EXPIRATION OF THE MANDATORY THIRTY- (30)-DAY
PERIOD PROVIDED IN SECTION 9.11 (A) HEREOF, ANY UNRESOLVED DISPUTE SHALL BE
SETTLED BY ARBITRATION UNDER THE RULES OF CONCILIATION AND ARBITRATION OF THE
INTERNATIONAL CHAMBER OF COMMERCE, BY ONE OR MORE ARBITRATORS APPOINTED IN
ACCORDANCE WITH SUCH RULES. THE ARBITRATION SHALL TAKE PLACE IN GENEVA
(SWITZERLAND) IN ENGLISH.
ARTICLE
IX
DEFINITIONS
9.1 General.
For all
purposes of this Agreement, except as otherwise expressly provided or unless the
context otherwise requires,
(a) The terms
defined in this Article IX have the meanings assigned to them in this
Article IX and include the plural as well as the singular,
(b) All
accounting terms not otherwise defined herein have the meanings assigned under
GAAP,
(c) All
references in this Agreement to designated “Articles,” “Sections” and other
subdivisions are to the designated Articles, Sections and other subdivisions of
the body of this Agreement,
(d) Pronouns
of either gender or neuter shall include, as appropriate, the other pronoun
forms, and
(e) The words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision.
9.2 Definitions. As
used in this Agreement and the Exhibits and Schedules delivered pursuant to this
Agreement, the following definitions shall apply.
“Action” means any
action, complaint, petition, investigation, suit or other proceeding, whether
civil or criminal, in Law or in equity, or before any arbitrator or Governmental
Entity.
“Affiliate” means a
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, a specified
Person.
“Agreement” means this
Agreement by and among Buyer and Sellers, as amended or supplemented together
with all Exhibits and Schedules attached or incorporated by
reference.
“Alcatel” has the
meaning set forth in the preamble to this Agreement.
“Alcatel Assets” has
the meaning set forth in Section 1.2
of this Agreement.
“Alcatel Lucent Group”
means Alcatel Lucent and its Subsidiaries.
“Alcatel Lucent Intellectual
Property Agreement” means the intellectual property transfer and license
agreement, dated as of the Closing Date, substantially in the form attached
hereto as Exhibit
F.
“Alcatel Lucent Intellectual
Property and Standards Group” means those members of the Alcatel Lucent
Intellectual Property and Standards Law Group who oversee, review or regularly
deal with intellectual property related legal matters.
“Allocation” has the
meaning set forth in Section 1.9(a)
hereof.
“Allocation Schedule”
has the meaning set forth in Section 1.9(a)
hereof.
“AMMS” has the meaning
set forth in the preamble to this Agreement.
“AMMS Assets” has the
meaning set forth in Section 1.1(e) of this
Agreement
“AMMS Products” means
those Products that are manufactured on behalf of and marketed by AMMS or its
Affiliates as of the Closing Date, the list of which is attached as
Schedule 9.2(a).
“AMMS Installed Base
Customers” means customers of AMMS that have purchased or agreed to
purchase AMMS Products at any time prior to the Closing Date.
“AMMS Intellectual
Property” has the meaning set forth in Section 1.1(c) of this Agreement
“Ancillary
Agreements” means the Trademark License Agreement, the Intellectual
Property Agreement and the Preferred Supplier Agreement.
“Approval” means any
approval, authorization, consent, qualification or registration, or any waiver
of any of the foregoing, required to be obtained from, or any notice, statement
or other communication required to be filed with or delivered to, any
Governmental Entity or any other Person.
“Associate” of a
Person means (a) a corporation or organization (other than any Seller or a party
to this Agreement) of which such Person or any Associate is an officer, director
or partner or is, directly or indirectly, the beneficial owner of ten percent
(10%) or more of any class of Equity Securities, (b) any trust or other estate
in which such Person or any Associate has a substantial beneficial interest or
as to which such Person serves as trustee or in a similar capacity, and (c) any
relative or spouse of such Person or any relative of such spouse who has the
same home as such Person.
“Asset Sale” means the
sale by Sellers and the purchase by Buyer of the Assets pursuant to the terms
hereof.
“Assets” has the
meaning set forth in Section 1.2 of this
Agreement.
“Assumed Liabilities”
shall mean Liabilities arising after the Closing Date in connection with the
ownership of the Assets.
“AVTF” shall mean
Alcatel Vacuum Technology France, a French corporation.
“Balance Sheet” shall
mean the audited balance sheet as of December 31, 2007.
“Books and Records”
means (a) all records and lists of each Seller pertaining to the Assets, (b) all
records and lists pertaining to the Business, customers, suppliers or personnel
of AMMS, (c) all product, business and marketing plans of AMMS, and (d) all
books, ledgers, files, reports, plans, drawings and operating records of every
kind maintained by AMMS, but excluding the originals (but not copies) of AMMS’
Statuts, corporate seals, minute books, stock books and other corporate or
comparable organizational records having to do with the organization and
capitalization of AMMS and all income Tax records.
“Business” means the
business of developing, manufacturing and selling the AMMS Products, as
conducted by the Sellers as at the Closing Date.
“Business
Documentation” has the meaning set forth in Section 1.1(d) hereof.
“Business Intellectual
Property” has the meaning set forth in Section 1.1(c) hereof.
“Business Tax” means
taxe professionnelle as
governed by Articles 1447 et
seq. of the French Tax Code (Code général des
impôts).
“Buyer” has the
meaning set forth in the preamble to this Agreement.
“Buyer Common Stock”
means the common stock, par value $0.01, per share of Buyer.
“Buyer SEC Documents”
has the meaning set forth in Section 2.9
hereof.
“Claim” has the
meaning set forth in Section 6.5(a)
hereof.
“Claim Notice” has the
meaning set forth in Section 6.5(a)
hereof.
“Closing” means the
consummation of the Asset Sale and the other transactions contemplated by this
Agreement.
“Closing Date” has the
meaning set forth in Section 1.11
hereof.
“Code” means the
Internal Revenue Code of 1986, as amended from time to time, and the applicable
regulations thereunder.
“Compete” has the
meaning set forth in Section 7.1(a)
hereof.
“Compete in the Field of
Services” has the meaning set forth in Section 7.2 hereof.
“Confidentiality
Agreement” means that certain Mutual Non-Disclosure Agreement, dated
April 27, 2008, by and between Buyer and AMMS.
“Contract” means any
agreement, arrangement, bond, insurance policy, commitment, franchise,
indemnity, indenture, instrument, lease, license, insurance policy or
understanding, whether or not in writing.
“Customer Services”
has the meaning set forth in Section 4.13(a)
hereof.
“Damages” has the
meaning set forth in Section 6.2(a)
hereof.
“Default” means (a) a
breach of or default under any Contract, (b) the occurrence of an event that
with the passage of time or the giving of notice or both would constitute a
breach of or default under any Contract, or (c) the occurrence of an event that
with or without the passage of time or the giving of notice or both would give
rise to a right of termination, renegotiation or acceleration under any
Contract.
“Delivered Shares” has
the meaning set forth in Section 1.7(b)
hereof.
“Designated Licensed
Patent” means the following Patent family (known as ALU
ref.104381 METHODE ET APPAREILLAGE DE GRAVURE ANISOTROPE DU SILICIUM PERMETTANT
D'OBTENIR DES MOTIFS A HAUT FACTEUR D'ASPECT): French patent application N° FR
0200032, International patent application N° PCT/FR2002/04588, European patent
application N° EP 00000000.5 and Japanese patent application N° JP
2003-560972.
“Designee” has the
meaning set forth in Section 4.12(a)
hereof.
“Dispute” has the
meaning set forth in Section 8.11
hereof.
“Encumbrance” means
any claim, charge, easement, encumbrance, lease, covenant, security interest,
mortgage, lien, option, pledge, rights of others, restriction (whether on
voting, sale, transfer, disposition or otherwise), or other encumbrance
whatsoever, whether imposed by agreement, understanding, Law, equity or
otherwise, except for any restrictions on transfer generally arising under any
applicable federal or state securities Law.
“Equity Securities”
means any capital stock or other equity interest or any securities convertible
into or exchangeable for capital stock or any other rights, warrants or options
to acquire any of the foregoing securities.
“Excluded Assets”,
notwithstanding any other provision of this Agreement, means all assets and
properties of the Sellers other than the Assets, including without limitation
Contracts in effect at the Closing, book orders as of the Closing Date and the
maintenance and support of the AMMS Installed Base Customers as of the Closing
Date.
“Excluded Liabilities”
has the meaning set forth in Section 1.6
hereof.
“Expenses” includes
all reasonable out-of-pocket expenses (including, without limitation, all fees
and expenses of counsel, accountants, investment bankers, experts and
consultants to a party hereto and its affiliates) incurred by a party or on its
behalf in connection with or related to the authorization, preparation,
negotiation, execution and performance of this Agreement and the transactions
contemplated hereby.
“Extended Transition
Period” has the meaning set forth in Section 4.10.
“Field of Services”
means the development, manufacturing and sale of capital equipment for
semiconductor or MEMS processing supplied to third-parties.
“Final Test Services”
means providing system-level functional tests to verify performance of the
Products against published specifications for process control and material
handling and calibration of all analog set-points versus actual performance, as
well as a system burn-in under simulated process conditions, and are performed
on the Products prior to shipment to the Customer.
“GAAP” means
accounting principles generally accepted in France.
“Governmental Entity”
means any government or any agency, bureau, board, commission, court,
department, official, political subdivision, tribunal or other instrumentality
of any government, whether federal, state or local, domestic or
foreign.
“Indebtedness” means
the outstanding principal balance of, and any accrued and unpaid interest, fees
and other amounts (including any prepayment penalties) payable by any Seller on
any indebtedness (including, without limitation, promissory notes, loans,
agreements, indentures, evidences of indebtedness, letters of credit and
guarantees) to any bank or other financial institution or other financing
source, or other unaffiliated lender (including any lessor on a capital lease),
any other outstanding obligations (including bank overdrafts) of any Seller to
any bank or other financial institution or other financing source, or other
unaffiliated lender (including any lessor on a capital lease) as of the Closing
Date (not including any trade payables), and the outstanding principal balance
of, and any accrued and unpaid interest, fees and other amounts payable on, any
Seller’s notes payable and any other obligations to any stockholder, former
stockholder or any Affiliate or Associate of any Seller as of the Closing
Date.
“Indemnified Party”
has the meaning set forth in Section 6.5(a)
hereof.
“Indemnifying Party”
has the meaning set forth in Section 6.5(a)
hereof.
“Intellectual
Property” means all of the following intellectual property rights:
(i) patents, pending and filed patent applications, and patent
disclosures, together with all provisionals, reissue patents, continuations,
continuations-in-part and divisions thereof (“Patents”), (ii)
trademarks, including goodwill associated therewith, (iii) copyrights
and copyright applications, (iv) trade secrets and other confidential and
non-public business or technical information, including research and development
data, records and reports, know-how, manufacturing and production processes and
techniques, specifications, designs, drawings, (v) all copies and tangible
embodiments of the foregoing (in whatever form or medium), and (vi) and the
right to xxx for any past, present or future claims or causes of action arising
out of or related to any infringement or misappropriation of any of the
foregoing, and the right to obtain legal and/or equitable relief
therefore.
“Intellectual Property
Rights” has the meaning set forth in Section 3.11(a) hereof.
“IRS” means the United
States Internal Revenue Service or any successor.
“Knowledge” shall
mean, with respect to an entity, the knowledge of the key executive officers of
that entity after reasonable inquiry, and with respect to an individual, the
actual knowledge of that individual after reasonable inquiry.
“Law” means any
constitutional provision, laws, statutes, ordinances, regulations, rules, notice
requirements, court decisions, agency guidelines, interpretations, principles of
law and Orders of any Governmental Entity, including without limitation
environmental laws, energy, motor vehicle safety, public utility, zoning,
building and health codes, occupational safety and health and laws respecting
employment practices, employee documentation, terms and conditions of employment
and wages and hours.
“Lock-up” has the
meaning set forth in Section 1.12(e)(i)
hereof.
“Loss” means any
action, cost, damage, disbursement, expense, liability, loss, deficiency,
diminution in value, obligation, penalty or settlement of any kind or nature,
whether foreseeable or unforeseeable, including but not limited to, interest or
other carrying costs, penalties, legal, accounting and other professional fees
and expenses incurred in the investigation, collection, prosecution and defense
of claims and amounts paid in settlement, that may be imposed on or otherwise
incurred or suffered by the specified Person.
“MEMS” means
micro-electrical mechanical systems.
“Non-Competition
Period” has the meaning set forth in Section 7.1(a) hereof.
“Order” means any
decree, injunction, judgment, order, ruling, assessment or writ of any
Governmental Entity.
“Outside Date” has the
meaning set forth in Section 8.1(a)(ii)
hereof.
“Party” has the
meaning set forth in the preamble to this Agreement.
“Patents” has the
meaning set forth in Section 9.2
hereof.
“Permit” means any
license, permit, franchise, certificate of authority, Approval or any waiver of
the foregoing, required to be issued by any Governmental Entity.
“Permitted
Encumbrances” means (i) statutory liens for Taxes not yet due,
(ii) assessments, governmental charges or levies or the Encumbrances of
materialmen, carriers, landlords and like Persons, all of which are in relation
to sums that are not yet due and payable, (iii) Encumbrances that will be
released and discharged at or prior to the Closing, (v) Encumbrances that
are not material in amount or do not materially detract from the value of or
materially impair the existing use of the property affected by such
Encumbrances, (vi) workers or unemployment compensation liens
arising in the ordinary course of business consistent with past practices, and
(vii) all non-exclusive licenses granted by any of the Sellers or their
respective Affiliates prior to the Closing Date.
“Person” means an
association, a corporation, an individual, a partnership, a trust, a firm or any
other entity, group or organization, including a Governmental
Entity.
“Plan” means any
retirement, pension, profit-sharing, money purchase, deferred compensation,
incentive compensation, bonus, stock option, stock purchase, severance pay,
unemployment benefit, vacation pay, savings, medical, dental, post-retirement
medical, accident, disability, weekly income, salary continuation, health, life
or other insurance, fringe benefit, or other employee benefit plan, program,
agreement, or arrangement maintained or contributed to by any Seller or such
Seller’s Affiliates.
“Pre-Closing Tax
Period” means any Tax period ending on or before the Closing Date and
that portion of any Straddle Period ending on the Closing Date.
“Preferred Supplier
Agreement” means the preferred supplier agreement, dated as of the
Closing Date, substantially in the form attached hereto as Exhibit
G.
“Products” means (i)
single wafer etching capital equipment based on the use of Inductively Coupled
Plasma (ICP sources, and (ii) Low Temperature Plasma Enhanced Chemical Vapor
Deposition (LT-PECVD) capital equipment. For the avoidance of doubt,
the Products shall not include Physical Vapor Deposition (PVD)
equipments.
“Property Taxes” means
all real property Taxes, personal property Taxes and similar ad valorem
Taxes.
“Proprietary
Information” has the meaning set forth in Section 7.3 hereof.
“Purchase Price” has
the meaning set forth in Section 1.7(a)
hereof.
“Registered Patented Business
IP” has the meaning set forth in Section 3.11(a) hereof.
“Representative” means
any officer, director, principal, attorney, advisor, agent, employee or other
representative.
“Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“Seller” has the
meaning set forth in the preamble to this Agreement.
“Seller Disclosure
Schedule” means Seller Disclosure Schedule dated the date hereof and
delivered by Sellers to Buyer and annexed hereto. The Sections of
Seller Disclosure Schedule shall be numbered to correspond to the applicable
Section of this Agreement and, together with all matters under such heading,
shall be deemed to qualify only that section.
“Straddle Period”
means any Tax period beginning before or on and ending after the Closing
Date.
“Subsidiary” means,
with respect to any Person, any corporation, partnership, limited liability
company or other organization, whether incorporated or unincorporated, of which
such Person or any other subsidiary of such Person beneficially owns a majority
of the voting or equity securities.
“Takeover Proposal”
means any proposal or offer from any Person (other than Buyer and its
Affiliates) providing for any: (a) acquisition (whether in a single transaction
or a series of related transactions) of the Assets or the Business, or (b)
merger, consolidation, share exchange, business combination, recapitalization or
similar transaction involving any Seller, in each case, other than the Asset
Sale.
“Tax” or “Taxes” means any
federal, state, local or foreign income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation, premium, windfall profits,
environmental, customs duties, capital stock, franchise, profits, withholding,
social security, unemployment, escheat, disability, real property, personal
property, sales, use, transfer, registration, ad valorem, value added,
alternative or add-on minimum or estimated tax or other tax of any kind
whatsoever, including any interest, penalty or addition thereto, whether
disputed or not and including any obligation to indemnify or otherwise assume or
succeed to the Tax liability of any other Person.
“Tax Return” means any
return, declaration, report, claim for refund, or information return or
statement relating to Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
“Threshold” has the
meaning set forth in Section 6.2(b).
“Total Shares
Outstanding” means the number of shares of Buyer Common Stock issued and
outstanding as of the date of such calculation, including for the purposes of
this Agreement, the Delivered Shares issuable to AMMS pursuant to this Agreement
and excluding for the purposes of this Agreement, any securities convertible
into or exchangeable for shares of Buyer Common Stock or any other rights,
warrants or options to acquire any of the foregoing securities.
“Transfer Taxes” shall
have the meaning given in Section 1.8(a).
“Trademark License
Agreement” means the trademark license agreement, dated as of the Closing
Date, substantially in the form attached hereto as Exhibit
E.
“Transition Period”
has the meaning set forth in Section 4.10.
“Transition Team” has
the meaning set forth in Section 4.10.
“VAT” means value
added taxes.
* *
*
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written:
ALCATEL MICRO
MACHINING SYSTEMS, a French corporation
By /s/
Xxxxxxx
Xxxxxxx
Name: Xxxxxxx
Xxxxxxx
Title: President
ALCATEL LUCENT, a
French corporation
By: /s/
Xxxxxx
de Pesquidoux
Name: Xxxxxx
de Pesquidoux
Title: Chief
Financial Officer
TEGAL CORPORATION, a
Delaware corporation
By: /s/ Xxxxxx
X. Xxxx
Name: Xxxxxx
X. Xxxx
Title: President
and Chief Executive Officer
Schedules
Seller
Disclosure Schedule
Allocation
Schedule
Schedule
9.2(a) (AMMS Products)
Schedule
9.2(b) (Installed Base AMMS Customers)
Exhibits
|
|
A
|
Form
of Xxxx of Sale
|
|
|
B
|
Budget
for Extended Transition Period
|
|
|
C
|
Budget
for Applications and/or Process Development
Activities
|
|
|
D
|
Inventory
of Subassemblies and Systems
|
|
|
E
|
Trademark
License Agreement
|
|
|
F
|
Intellectual
Property Agreement
|
|
|
G
|
Preferred
Supplier Agreement
|
|
|
H
|
Customer
Services and Final Test Services
Schedule
|
