EXHIBIT 2
AMTECH CORPORATION
AGREEMENT
as of October 31, 1997
November 11, 1997
UNOVA, Inc.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Chief Financial Officer
Ladies and Gentlemen:
Amtech Corporation (the "Company"), a Texas corporation, hereby agrees with
UNOVA, Inc. ("UNOVA"), a Delaware corporation, as follows:
1. AGREEMENT.
(a) UNOVA shall pay the Company an aggregate of $10,000,000 in cash,
which shall represent the following: (i) payment for the number of shares of
newly-issued Company common stock, par value $0.01 per share (the "Company
Stock") determined as set forth in this paragraph (a) (the "Purchase Price"),
and (ii) an advance fee for research and development work to be performed by
the Company as referred to in paragraph 4(h) of this Agreement (the "Advance
Fee"). UNOVA and the Company agree that the aggregate cash payment made by
UNOVA to the Company shall be allocated seventy-five percent (75%) to the
Purchase Price for the Company Stock (which reflects a twenty-five percent
(25%) discount to the market price of the Company Stock as a result of
restrictions on transferability imposed thereon), and twenty-five percent
(25%) to the Advance Fee for research and development work. Subject to the
terms and conditions contained in this Agreement, on the "Closing Date" (as
defined in paragraph 1(d)), the Company shall issue and sell to UNOVA the
number of whole shares (the "Shares") of Company Stock determined by dividing
$ 10,000,000 by the average of the "Daily Price" (as defined below) of
Company Stock for each trading day during the period (the "Measurement
Period") beginning on October 1, 1997 and ending on October 31, 1997. The
"Daily Price" means the mean between the high and the low reported sales
prices of Company Stock on NASDAQ as reported in the WALL STREET JOURNAL, on
each trading day during the Measurement Period.
UNOVA, Inc.
November 11, 1997
Page 2
(b) The purchase and sale of the Shares shall be effected at the "Closing"
(as defined in paragraph 1(d)) by the Company executing and delivering to UNOVA
duly executed stock certificates evidencing the Shares, duly registered in its
name, against delivery to the Company of the Purchase Price.
(c) At the Closing, UNOVA shall pay and remit $10,000,000 to the Company,
by wire transfer of immediately available funds to the Company's bank account at
NationsBank of Texas, N.A., Dallas, Texas, Account Number 1090947168, ABA
Routing Code 000000000.
(d) Consummation of the transactions provided for in this Agreement (the
"Closing") shall take place at the offices of UNOVA, located at 000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000-0000, on November 3, 1997 (the
"Closing Date") commencing at 10:00 AM, or such other place or date or time
as the parties may mutually agree in writing.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants to UNOVA as follows, which representations and
warranties shall be deemed reaffirmed on the Closing Date as if made again on
such date:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Texas, with the corporate power
and authority to own, lease and operate its properties and conduct its
business as now conducted. The Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
qualification, except where the failure to so qualify would not have a
material adverse effect on the condition (financial or other), properties,
business or results of operations of the Company and its subsidiaries taken
as a whole.
(b) Each "Significant Subsidiary" (as defined below) is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, with the corporate power and authority to own, lease and operate
its properties and conduct its business as now conducted. Each Significant
Subsidiary is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires qualification, except where the failure
to so qualify would not have a material adverse effect on the condition
(financial or other), properties, business or results of operations of the
Company and its subsidiaries taken as a whole. All of the issued and
outstanding capital stock of each Significant Subsidiary has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock of each Significant
UNOVA, Inc.
November 11, 1997
Page 3
Subsidiary is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity. For purposes of this Agreement, "Significant Subsidiary"
means any direct or indirect subsidiary of the Company that owns, directly or
indirectly, any single service or manufacturing facility, or portion thereof,
the book value of which (after deducting accumulated depreciation) as of the
date the determination is being made is greater than one percent (1%) of
consolidated net assets. As used in this definition, "service or
manufacturing facility" means property, plant and equipment used for actual
performance of services, and it excludes sales offices and facilities used
only for general administration.
(c) A description of the authorized, issued and outstanding capital
stock of the Company is set forth on Schedule 2(c). The Company has
authorized the issuance of at least 2,275,000 shares of Company Stock for
purposes of this Agreement. The Shares and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and when the Shares have been
delivered and paid for in accordance with this Agreement, the Shares will be
duly and validly issued, fully paid and nonassessable; and the stockholders
of the Company have no preemptive rights with respect to the Shares.
(d) There are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim against the
Company for a brokerage commission, finder's fee or like payment in
connection with this Agreement.
(e) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the Company
to file a registration statement under the Securities Act of 1933, as amended
(the "Act"), with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities in
the securities registered pursuant to any registration statement filed by the
Company under the Act.
(f) Neither the Company nor any Significant Subsidiary is in violation
of its charter or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its Significant Subsidiaries is
subject, or in violation of any applicable law, administrative regulation or
administrative or court order or decree, which violation or default would,
singly or in the aggregate, have a material adverse effect on the condition
(financial or other), properties, business or results of operations of the
Company and its subsidiaries taken as a whole.
UNOVA, Inc.
November 11, 1997
Page 4
(g) No authorization, approval or consent of any court or governmental
authority or agency, domestic or foreign, is necessary in connection with the
issuance or sale of the Shares hereunder, except such as may be required under
the Act or the rules and regulations of the Securities and Exchange Commission
(the "Commission") or under state or foreign securities laws, all of which have
been obtained or made and are or will be at the Closing Date in full force and
effect.
(h) The execution, delivery and performance of this Agreement and the
issuance and sale of the Shares will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any statute, any
rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any subsidiary of
the Company or any of their properties, or any agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the Company or any
such subsidiary is subject, or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to authorize, issue and
sell the Shares as contemplated by this Agreement.
(i) This Agreement has been duly authorized by all necessary corporate
action and has been duly executed and delivered by the Company.
(j) Set forth on Schedule 2(j) is a list and description of all real
properties owned by the Company and its subsidiaries or in which any of them
have any equity interest. Except as set forth on Schedule 2(j), the Company
and its subsidiaries have good and sufficient title to all real properties
and all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or proposed to be made
thereof by them, other than liens for taxes not yet due and payable,
workers', repairmen's and similar liens imposed by law incurred in the
ordinary course of business, and retention of title agreements with suppliers
entered into in the ordinary course of business; and the Company and its
subsidiaries hold any leased real or personal property which, individually or
in the aggregate, is material to the Company and its subsidiaries taken as a
whole, under valid and enforceable leases with no exceptions that would
materially interfere with the use made or proposed to be made thereof by them.
(k) The Company and its Significant Subsidiaries possess such material
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by them,
UNOVA, Inc.
November 11, 1997
Page 5
and neither the Company nor any of its Significant Subsidiaries has received
any notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely to the
Company or any of its Significant Subsidiaries, would individually or in the
aggregate have a material adverse effect on the condition (financial or
other), properties, business or results of operations of the Company and its
subsidiaries taken as a whole.
(l) No strike, work stoppage or similar labor dispute with the employees
of the Company or any subsidiary exists or, to the knowledge of the Company,
is imminent that might have a material adverse effect on the condition
(financial or other), properties, business or results of operations of the
Company and its subsidiaries taken as a whole.
(m) The Company and its subsidiaries own, possess or have the right to
employ, or can acquire on reasonable terms, the patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, the "Patent and Proprietary Rights") presently employed by
them in connection with the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with
respect to any Patent and Proprietary Rights, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding),
singly or in the aggregate, would result in any material adverse change in
the condition (financial or other), properties, business or results of
operations of the Company and its subsidiaries taken as a whole. The use of
such intellectual property rights in connection with the business and
operations of the Company and its subsidiaries does not, to the Company's
knowledge, infringe on the rights of any persons. The Company has previously
advised UNOVA of a matter in which an infringement claim has been made by a
third party.
(n) Except as set forth on Schedule 2(n), to the knowledge of the Company,
neither the Company nor any of its subsidiaries is in violation of any statute,
any rule, regulation or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, the
"environmental laws"), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have a material
adverse effect on the condition (financial or other), properties, business or
results of
UNOVA, Inc.
November 11, 1997
Page 6
operations of the Company and its subsidiaries taken as a whole. Set forth
on Schedule 2(n) is a list and description of all sites in which the Company
or any of its subsidiaries is a "potentially responsible party" as defined in
the environmental laws and all proceedings brought by any governmental agency
under the environmental laws which could reasonably be expected to result in
a fine or penalty in excess of $100,000.
(o) Except as disclosed in the "SEC Reports" (as defined in paragraph
2(p)), there is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the Company or any
of its subsidiaries, which could reasonably be expected to affect
consummation of this Agreement or could reasonably be expected to result in
an adverse judgment or settlement against the Company or any of its
subsidiaries in excess of $500,000.
(p) The financial statements contained in the Company's latest annual
report as filed with the Commission on Form 10-K and latest quarterly report
as filed with the Commission on Form 10-Q (collectively, the "SEC Reports")
present fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and such financial statements have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis.
(q) Except as disclosed in the SEC Reports and except for potential
additional writedowns of WaveNet assets, up to a maximum of $1,600,000,
pending the outcome of the sale of the business to parties in current
negotiations, since the date of the latest audited financial statements
included in the SEC Reports, there has been no material adverse change in the
condition (financial or other), properties, business or results of operations
of the Company and its subsidiaries taken as a whole, and there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material to the
Company and its subsidiaries taken as a whole; and except as disclosed in the
SEC Reports, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(r) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 527.075, Florida Statutes, and the Company agrees to
comply with such Section if prior to the Closing it commences doing such
business.
UNOVA, Inc.
November 11, 1997
Page 7
3. REPRESENTATIONS AND WARRANTIES OF UNOVA. UNOVA hereby represents and
warrants to the Company as follows, which representations and warranties
shall be deemed reaffirmed on the Closing Date as if made again on such date:
(a) UNOVA is acquiring the Shares for its own account for investment and
not with a view to, or for sale or other disposition in connection with, any
distribution thereof, except (i) in an offering covered by a registration
statement filed with the Commission under the Act covering the Shares or (ii)
pursuant to an applicable exemption under the Act.
(b) UNOVA has such experience in financial and business matters that it
is capable of evaluating the merits and risks of an investment in the Shares.
UNOVA is an "accredited investor" as defined in Section 501 of Regulation D
under the Act.
(c) UNOVA understands that the issuance and sale of the Shares have not
been registered under the Act or any state securities laws on the basis that
the issuance and sale of the Shares hereunder is exempt from registration
under the Act based in part on the representations of UNOVA contained in this
Agreement, and that the Shares will bear a restrictive legend restricting
transfer except in accordance with the Act.
(d) UNOVA is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, with the corporate power
and authority to own, lease and operate its properties and conduct its
business as now conducted. UNOVA is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
qualification, except where the failure to so qualify would not have a
material adverse effect on the condition (financial or other), properties,
business or results of operations of UNOVA and its subsidiaries taken as a
whole.
(e) There are no contracts, agreements or understandings between UNOVA
and any person that would give rise to a valid claim against UNOVA for a
brokerage commission, finder's fee or like payment in connection with this
Agreement.
(f) No authorization, approval or consent of any court or governmental
authority or agency, domestic or foreign, is necessary in connection with the
purchase of the Shares hereunder, except such as may be required under the
Act or the rules and regulations of the Commission or under state or foreign
securities laws, all of which have been obtained or made and are or will be
at the Closing Date in full force and effect.
UNOVA, Inc.
November 11, 1997
Page 8
(g) This Agreement has been duly authorized by all necessary corporate
action and has been duly executed and delivered by UNOVA.
(h) UNOVA has the financial capability to consummate the transactions
contemplated by this Agreement.
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company hereby agrees with UNOVA
as follows:
(a) At all times during which UNOVA shall hold at least eighty percent
(80%) of the Shares, the Company shall nominate UNOVA's designee (which shall
be the Chief Executive Officer ("CEO"), the Chief Financial Officer or such
other Senior Vice President of UNOVA as may be designated by the CEO) to
serve on the Board of Directors of the Company.
(b) If at any time following the Closing the Company proposes to
register any shares of Company Stock under the Act (other than in connection
with the registration of securities issuable pursuant to an employee stock
option, stock purchase or similar plan, or in connection with a stock for
stock merger registered on Form S-4), the Company shall give UNOVA notice of
such proposed registration at least 30 days prior to the filing of a
registration statement. At the written request of UNOVA within 15 days after
the receipt of such notice from the Company, which request shall state the
number of Shares that UNOVA wishes to sell or distribute publicly under the
registration statement proposed to be filed by the Company, the Company shall
promptly use its best efforts to register such Shares under the Act and to
cause such registration to become effective. The Company shall have the
right to select the underwriters and managers to administer any such
offering, subject to the approval of UNOVA, which approval shall not be
unreasonably withheld or delayed; PROVIDED, HOWEVER, that nothing herein
shall prevent the Company from, at any time, abandoning or delaying any
registration under this paragraph 4(b). Notwithstanding the foregoing, if
the managing underwriter determines and advises in writing that the inclusion
of UNOVA's shares would interfere with the successful marketing of such
securities, then the number of shares that the managing underwriter believes
may be sold in such underwritten public offering shall be allocated for
inclusion in the registration statement first, to the Company, and second, to
UNOVA.
(c) From and after the date which is 15 months following the Closing
Date, UNOVA shall have the right, on three occasions only, to demand in
writing that the Company register all or a portion of the Shares, PROVIDED,
HOWEVER, that the number of Shares that UNOVA demands to register would be
expected to yield at least $8,000,000 of gross proceeds upon sale. In the
event of such demand, the Company shall promptly use its best efforts to
register under the
UNOVA, Inc.
November 11, 1997
Page 9
Act the number of Shares specified by UNOVA in such demand and to cause such
registration to become effective as soon as possible after the filing
thereof. Notwithstanding the foregoing, if the Company determines that the
offering of shares at the time of UNOVA's demand would have a material
adverse effect on the market for Company Stock, or that corporate
developments make it inadvisable to register the Shares at that time, the
Company may, on one occasion upon any single demand, delay the filing of the
registration statement for up to 180 days; PROVIDED, HOWEVER, that if UNOVA
so elects, such registration shall continue without delay, but UNOVA shall be
required to reimburse the Company for all of its costs and expenses incurred
in connection with such registration. If the filing of the registration
statement is delayed pursuant to the preceding sentence, UNOVA shall have the
right to withdraw its demand, in which case the demand will not count as a
demand for registration under this paragraph, or leave the demand in place.
UNOVA's demand rights under this paragraph shall survive until the earlier to
occur of the following: (i) UNOVA's beneficial ownership is reduced to less
than five percent (5%) of the total number of issued and outstanding shares
of Company Stock (except as a result of new issuances of Company Stock by the
Company), (ii) UNOVA is able to sell all of the Shares then held by it under
Rule 144(k) (or its successor rule), or (iii) the fifth anniversary of the
Closing Date.
(d) The Company shall indemnify and hold harmless UNOVA, the officers
and directors of UNOVA and each underwriter of any registration of Shares
pursuant to paragraphs 4(b) or 4(c) (and any person who controls an
underwriter within the meaning of Section 15 of the Act) against all claims,
losses, damages, liabilities, actions and expenses resulting from any untrue
statement or alleged untrue statement of a material fact contained in a
prospectus or in any related registration statement, notification or the like
or from any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same may have been based on information
furnished to the Company by UNOVA, its officers and/or directors or such
underwriter, expressly authorized for use therein and used in accordance with
such authorization. Subject to the last paragraph of this Section 4(d), the
Company agrees to reimburse each person indemnified pursuant to this
paragraph for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such loss, claim, damage,
liability, action or expense.
UNOVA, by acceptance of the registration provisions provided herein, agrees
to: (i) furnish to the Company such information concerning UNOVA and the
proposed sale or distribution of Shares as shall, in the opinion of counsel for
the Company, be necessary in connection with any such registration or
qualification; and (ii) indemnify and hold harmless the Company, its officers
and directors and each of its underwriters (and any person who controls an
UNOVA, Inc.
November 11, 1997
Page 10
underwriter within the meaning of Section 15 of the Act) against all claims,
losses, damages, liabilities, actions and expenses resulting from any untrue
statement or alleged untrue statement of a material fact furnished to the
Company by UNOVA, its officers and/or directors pursuant to this paragraph 4(d),
expressly authorized for use in connection with such registration or
qualification and used in accordance with such authorization, and from any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will promptly notify the
indemnifying party of the commencement of such action. The indemnifying
party shall then have the right to participate in, and to the extent that it
may wish, assume the defense of such action, with counsel satisfactory to the
indemnified party. If the indemnifying party assumes the defense of such
action, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses subsequently incurred by the indemnified
party. If the indemnifying party does not assume the defense thereof within
a reasonable period of time following receipt of the notice, the indemnified
party may defend against the claim and the indemnifying party shall reimburse
the indemnified party for reasonable attorneys fees and costs incurred in the
investigation or defense of such claim.
(e) In the event that any Shares are to be registered or qualified
pursuant to this Section 4 (the "Registration Shares"), the Company covenants
and agrees to promptly use its best efforts to effect the registration and/or
qualification and to cooperate in the sale of the Registration Shares and to:
(i) furnish to UNOVA copies of any registration statement with
respect to the Registration Shares (as well as any necessary amendments or
supplements thereto) and any prospectus forming a part thereof prior to
filing with the Commission;
(ii) notify UNOVA, promptly after the Company shall receive
notice thereof, of the time when said registration statement becomes
effective or when any amendment or supplement to any prospectus forming part
of said registration statement has been filed;
(iii) notify UNOVA promptly of any request by the Commission for
the amending or supplementing of such registration statement or prospectus or
for additional information;
(iv) advise UNOVA after the Company shall receive notice or
obtain knowledge of the issuance of any order by the Commission suspending
UNOVA, Inc.
November 11, 1997
Page 11
the effectiveness of any such registration statement or amendment thereto or
of the initiation or threatening of any proceeding for that purpose, and to
promptly use its best efforts to prevent the issuance of any stop order or to
obtain its withdrawal promptly if such stop order should be issued;
(v) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus forming a part
thereof as may be necessary to keep such registration statement effective for
the lesser of: (a) a period of time necessary to permit UNOVA pursuant to
such registration statement to dispose of all such Shares; (b) 120 days; or
(c) the maximum period of time permitted by law to keep effective a
registration statement;
(vi) furnish to UNOVA such number of copies of such registration
statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents as UNOVA may reasonably request in order to facilitate the
disposition of the Registration Shares;
(vii) use its best efforts to register or qualify the Registration
Shares under such securities or blue sky laws of such jurisdictions as
determined by the underwriter after consultation with the Company and UNOVA,
and to do any and all other acts and things which may be necessary or
advisable to enable UNOVA to consummate the disposition in such jurisdictions
of such Shares, PROVIDED, HOWEVER, that the Company shall not for any purpose
be required to execute a general consent to service of process or to qualify
to do business as a foreign corporation in any jurisdiction where it is not
so qualified, or, subject itself to taxation in a jurisdiction where it had
not previously been subject to taxation, or take any other action that would
subject the Company to service of process in a lawsuit other than one arising
out of the registration of the Shares;
(viii) notify UNOVA at any time when a prospectus relating thereto
is required to be delivered under the Act of the happening of any event as a
result of which such registration statement contains an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and, at
the request of UNOVA, to prepare a supplement or amendment to such
registration statement so that such registration statement will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(ix) cause all Registration Shares to be listed on each
securities exchange on which similar securities issued by the Company are
then listed;
UNOVA, Inc.
November 11, 1997
Page 12
(x) provide a transfer agent and (if required) a registrar for
all Registration Shares not later than the effective date of such
registration statement;
(xi) enter into such customary agreements (including an
underwriting agreement in customary form) and take all such other actions as
UNOVA or the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of the Registration Shares;
(xii) make available for inspection by UNOVA, any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by UNOVA or such
underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors
and employees to supply all information reasonably requested by UNOVA, any
such underwriter, attorney, accountant or agent in connection with such
registration statement;
(xiii) use its best efforts to cause the Registration Shares
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
UNOVA to consummate the disposition of such Registration Shares; and
(xiv) use its best efforts to obtain, in addition to such consents
as may be necessary, a comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type
customarily covered by comfort letters as UNOVA may reasonably request.
(f) It shall be a condition precedent to the obligation of the Company
to register any Registration Shares pursuant to this Section 4 that UNOVA
shall have (i) furnished to the Company such information regarding the
sellers of the Registration Shares and the intended disposition of the
Registration Shares and other information concerning UNOVA as the Company
shall reasonably request and as shall be required in connection with any
registration statement to be filed by the Company; and (ii) agreed to abide
by such additional or customary term affecting any proposed offering of
Company Stock, including reasonable lock-up terms, as reasonably requested by
the managing underwriter of such offering.
(g) Except as otherwise provided herein, Company shall pay all of the
expenses in connection with any registration pursuant to this Section 4,
including without limitation costs of complying with federal and state
securities laws and regulations, attorneys' and accounting fees of the
Company, printing expenses and federal and state filing fees, but the Company
shall not be obligated to pay underwriting discounts or commissions, or
brokerage costs, transfer taxes, or the fees and disbursements of any counsel
for UNOVA.
UNOVA, Inc.
November 11, 1997
Page 13
(h) As soon as practicable following the date hereof, the Company and
UNOVA shall enter into definitive agreements necessary to create a research
and development alliance (the "Alliance") between the Company and UNOVA in
which the parties will develop and market radio frequency identification
("RFID") technology to be jointly identified and developed or acquired during
the term of the Alliance (the "RFID Technology"). Such agreements shall
include without limitation (i) a technology development agreement under which
the Company will develop certain RFID Technology and be compensated (whether
in cash, licenses or otherwise) for such development based on certain
milestones, with the acknowledgment that UNOVA shall have paid the Company on
the Closing Date the Advance Fee of $2,500,000 as partial payment for such
work, and (ii) cross licenses by and to the Company and UNOVA of the RFID
Technology and certain other existing proprietary technology of the Company
and/or UNOVA. Notwithstanding the foregoing, if UNOVA and the Company are
unable to conclude on mutually satisfactory terms (x) the acquisition of
certain third party technology that forms a basis for the Alliance, and (y)
the technology development agreement referred to above, in each case by
January 31, 1998, the 15-month waiting period for demand registration rights
set forth in paragraph 4(c) shall be deemed expired, UNOVA may immediately
thereafter demand registration of the Shares, and the payment and allocation
set forth in paragraph 1(a) shall be deemed to be $10,000,000 for the
Purchase Price for the Shares.
(i) During the period from the date of this Agreement until the Closing
Date, the Company shall operate its business solely in the ordinary course
and shall refrain from entering into any extraordinary transactions without
the prior written consent of UNOVA, other than as disclosed in paragraph
2(q).
5. CONDITIONS OF THE OBLIGATIONS OF UNOVA. The obligation of UNOVA to
purchase the Shares shall be subject to the satisfaction on the Closing Date
of each of the following conditions:
(a) The representations and warranties of the Company contained in this
Agreement shall be true and correct in all material respects on the Closing
Date, and the Company shall have performed in all material respects all of
the obligations under this Agreement which are to be performed on or prior to
the Closing Date.
(b) The Company shall have delivered to UNOVA the certificate of the
President and Chief Executive Officer of the Company certifying as of the
Closing Date to the fulfillment of the conditions set forth in paragraph 5(a).
(c) The Company shall have delivered to UNOVA the certificate of the
Secretary or Assistant Secretary of the Company certifying as of the Closing
UNOVA, Inc.
November 11, 1997
Page 14
Date to the authorization and approval of the transactions provided for in
this Agreement by duly adopted resolutions of its Board of Directors.
(d) No investigation, suit, action or other judicial or governmental
proceeding shall be pending or threatened before any court or governmental
agency which is likely to result in the restraint or prohibition, or the
obtaining of substantial damages in connection with this Agreement or the
consummation of the transactions provided for in this Agreement.
(e) All proceedings, corporate or other, to be taken by the Company in
connection with the issuance and sale of the Shares shall be reasonably
satisfactory in form and substance to UNOVA, and the Company shall have made
available to UNOVA for examination the originals or true and correct copies
of all documents which UNOVA may reasonably request in connection therewith.
(f) The Company shall have delivered to UNOVA the written opinion of
Xxxxxx X. Xxxxxxxx, Esq., Vice President and General Counsel of the Company,
to the effect set forth on Exhibit A.
(g) There shall have been no change, nor any development involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries which
would reasonably be expected to be material and adverse and which would make
it impractical or inadvisable to proceed with completion of the purchase of
the Shares.
6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligation of the
Company to issue and sell the Shares to UNOVA shall be subject to the
satisfaction on the Closing Date of each of the following conditions:
(a) The representations and warranties of UNOVA contained in this
Agreement shall be true and correct in all material respects on the Closing
Date, and UNOVA shall have performed in all material respects all of the
obligations under this Agreement which are to be performed on or prior to the
Closing Date.
(b) UNOVA shall have delivered to the Company the certificate of a Vice
President of UNOVA certifying as of the Closing Date to the fulfillment of
the conditions set forth in paragraph 6(a).
(c) No investigation, suit, action or other judicial or governmental
proceeding shall be pending or threatened before any court or governmental
agency which is likely to result in the restraint or prohibition, or the
obtaining of substantial damages in connection with this Agreement or the
consummation of the transactions provided for in this Agreement.
UNOVA, Inc.
November 11, 1997
Page 15
7. TERMINATION. This Agreement may be terminated immediately by giving
written notice specifying the cause of termination, and the transactions
provided for in this Agreement may be abandoned, without liability on the
part of the party effecting such termination: (i) by mutual written consent
of the Company and UNOVA, (ii) by either UNOVA or the Company, if the
purchase and sale of the Shares has not been consummated (for any reason
other than a breach of any representation, warranty, covenant or agreement by
the party seeking termination) on or before November 15, 1997, (iii) by
UNOVA, if any of the conditions of Section 5 have not been satisfied on the
intended Closing Date and have not been waived by UNOVA in writing, or (iv)
by UNOVA, if the Company files on or before the Closing Date a petition in
bankruptcy, reorganization, liquidation or receivership or a petition in
bankruptcy, reorganization or receivership is filed on or before the Closing
Date against the Company.
8. MISCELLANEOUS PROVISIONS.
(a) No party shall make, issue or release any public announcement, press
release, public statement or public acknowledgment of the terms, conditions
and status of, the transactions provided for in this Agreement, without the
prior written consent of the other party as to the content and time of
release and the media in which such statement or announcement is to be made;
PROVIDED, HOWEVER, that in the case of announcements, statements,
acknowledgments or revelations which any party, in the written opinion of
such party's counsel, is required by law or regulations, including those of
public stock exchanges or automated quotation systems on which the securities
of such party or its affiliates are traded or quoted, to make, issue or
release (a "Legally Required Statement"), the making, issuing or releasing of
any such Legally Required Statement shall not constitute a breach of this
Agreement if such party shall have given, to the extent reasonably possible,
three days prior notice to the other party, and shall have attempted, to the
extent reasonably possible, to clear such disclosure with the other party.
Each party agrees that it will not unreasonably withhold or delay any such
consent or clearance.
(b) Except as otherwise provided in this Agreement, each party shall be
responsible for and bear its respective costs and expenses in connection
with, or arising out of, the negotiation and execution of this Agreement and
consummation of the transactions provided for herein.
(c) This Agreement may be amended, modified, supplemented or terminated
only by a writing executed on behalf of each of the parties.
(d) No party shall assign, in whole or in part, this Agreement or its
respective rights and obligations hereunder without the express prior written
consent of the other party.
UNOVA, Inc.
November 11, 1997
Page 16
(e) All notices, requests, demands or other communications hereunder
must be in writing and executed by an authorized representative of the party
responsible therefor, and must be given either by hand or telecopy, telefax
or other telecommunication device capable of creating a written record which
acknowledges receipt, as follows:
(i) If such notice is directed to the Company, it shall be sent to:
Amtech Corporation, if on or after December 1, 1997, to 00000 Xxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, and if before December 1, 1997, to 00000
Xxxxxxx Xxxx, Xxxx. X000, Xxxxxx, Xxxxx 00000, Fax No. 972/000-0000,
Attention: General Counsel, with a copy to Xxxxxx & Xxxx L.L.P., 0000 Xxxx,
Xxxxxx, Xxxxx 00000, Fax No. 214/000-0000, Attention: Xxxxxxx X. Xxxxxx, or
to such other person or place as the Company shall have specified to UNOVA in
writing by a notice in accordance with this paragraph 8(e).
(ii) If such notice is directed to UNOVA, it shall be sent to:
UNOVA, Inc., 000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000,
Fax No: 310/000-0000, Attention: General Counsel, or to such other person or
place as UNOVA shall have specified to the Company in writing by a notice in
accordance with this paragraph 8(e).
(f) This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument, and any of such
counterparts may be delivered by facsimile transmission.
(g) No single or partial waiver of any breach of any provision of this
Agreement shall be held to be a waiver of any other or subsequent breach, and
the failure of a party to enforce at any time any provision of this Agreement
shall not be deemed a waiver of any right of any such party to subsequently
enforce such provision. All remedies afforded in this Agreement shall be
taken and construed as cumulative, that is, in addition to every other remedy
provided in this Agreement or by law.
(h) This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of Texas without regard to its
conflicts of laws rules.
(i) All representations, warranties, covenants and agreements of the
parties contained in this Agreement shall survive the execution and delivery
of this Agreement and consummation of the transactions provided for in this
Agreement for a period of one year following the Closing Date,
notwithstanding any investigation heretofore or hereafter made by or on
behalf of the respective parties.
UNOVA, Inc.
November 11, 1997
Page 17
(j) This Agreement shall be interpreted without regard to any
presumption or rule requiring construction against the party causing such
agreements to be drafted.
(k) This Agreement constitutes the sole understanding and agreement of the
parties with respect to the subject matter of this Agreement and supersedes and
cancels all prior understandings and agreements.
If the foregoing is in accordance with UNOVA's understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between UNOVA and the
Company in accordance with its terms.
Sincerely,
AMTECH CORPORATION
By: /s/ G. Xxxxxxx Xxxxxxxxx
-----------------------------
Title: President and CEO
-----------------------------
ACCEPTED and AGREED
UNOVA, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Title: Senior Vice President and
-----------------------------
Chief Financial Officer
-----------------------------
