Exhibit 4.18
To Form F-3
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ASM INTERNATIONAL N.V.
US$65,000,000
EQUITY LINE FINANCING AGREEMENT
JULY 2, 2002
CANADIAN IMPERIAL HOLDINGS INC.
AS INVESTOR
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TABLE OF CONTENTS
PAGE
I. CERTAIN DEFINITIONS.......................................................1
Section 1.1 Defined Terms...........................................1
II. PURCHASE AND SALE OF COMMON STOCK.........................................6
Section 2.1 Investments.............................................6
Section 2.2 Limitations on Investment Amounts.......................6
Section 2.3 Mechanics of Notification...............................6
Section 2.4 Closings................................................7
Section 2.5 Termination, Suspension and Modification of
Investment Obligation...................................7
III. CONDITIONS PRECEDENT......................................................8
Section 3.1 Conditions Precedent to the Obligation of the
Company to Issue and Sell Common Stock..................8
Section 3.2 Conditions Precedent to the Obligation of the
Investor to Purchase Common Stock.......................9
Section 3.3 Due Diligence Review...................................11
IV. REPRESENTATIONS AND WARRANTIES OF INVESTOR...............................14
Section 4.1 Authority..............................................14
Section 4.2 No Brokers.............................................14
Section 4.3 Not an Affiliate.......................................14
Section 4.4 Organization and Standing..............................14
Section 4.5 Absence of Conflicts...................................14
Section 4.6 Disclosure: Access to Information......................15
Section 4.7 No Hedging or Short Selling............................15
Section 4.8 Compliance with Securities Laws........................15
V. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................15
Section 5.1 Corporate Organization.................................15
Section 5.2 Capitalization.........................................16
Section 5.3 Subsidiaries...........................................16
Section 5.4 Authorization..........................................17
Section 5.5 No Violation; Consents.................................17
Section 5.6 Compliance With Applicable Law.........................18
Section 5.7 Litigation.............................................18
Section 5.8 SEC Documents, Financial Statements....................18
Section 5.9 No Undisclosed or Contingent Liabilities...............19
Section 5.10 Taxes..................................................19
Section 5.11 Employee Benefit Plans.................................20
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TABLE OF CONTENTS
(continued)
PAGE
Section 5.12 Absence of Certain Changes.............................20
Section 5.13 Environmental Matters..................................21
Section 5.14 Material Contracts.....................................22
Section 5.15 Properties; Encumbrances...............................22
Section 5.16 Insurance..............................................22
Section 5.17 Employee Claims; Labor Matters.........................23
Section 5.18 Material Disclosure....................................23
Section 5.19 Intellectual Property..................................23
Section 5.20 No Undisclosed Events or Circumstances.................23
Section 5.21 No Brokers.............................................24
Section 5.22 No Violation of Covenants..............................24
VI. COVENANTS OF THE COMPANY.................................................24
Section 6.1 Registration Rights....................................24
Section 6.2 Reservation of Common Stock............................24
Section 6.3 Listing of Common Stock................................24
Section 6.4 Exchange Act Reporting.................................25
Section 6.5 Legends................................................25
Section 6.6 Corporate Existence....................................25
Section 6.7 Additional SEC Documents...............................25
Section 6.8 "Blackout Period"......................................25
VII. OTHER ISSUANCES OF COMMON STOCK..........................................25
Section 7.1 [Reserved].............................................25
Section 7.2 Other Adjustments to Purchase Price....................26
VIII.GOVERNING LAW AND JURISDICTION...........................................26
Section 8.1 GOVERNING LAW..........................................26
Section 8.2 Jurisdiction...........................................26
Section 8.3 Waiver of Sovereign Immunity...........................26
IX. ASSIGNMENT, ENTIRE AGREEMENT, AMENDMENT, TERMINATION.....................27
Section 9.1 Assignment.............................................27
Section 9.2 Entire Agreement; Amendment............................27
Section 9.3 Publicity..............................................27
Section 9.4 Termination............................................27
X. NOTICES, COSTS AND EXPENSES, RIGHT OF FIRST REFUSAL, INDEMNIFICATION.....28
Section 10.1 Notices................................................28
Section 10.2 [Reserved].............................................29
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TABLE OF CONTENTS
(continued)
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Section 10.3 [Reserved].............................................29
Section 10.4 Indemnification........................................29
Section 10.5 Contribution...........................................31
Section 10.6 General Indemnification................................32
Section 10.7 Indemnification of Accountants.........................33
XI. MISCELLANEOUS............................................................33
Section 11.1 Counterparts...........................................33
Section 11.2 Survival; Severability.................................33
Section 11.3 Title and Subtitles....................................33
Section 11.4 Effectiveness of the Agreement.........................33
EXHIBIT A -- FORM OF OPINION OF U.S. COUNSEL
EXHIBIT B -- FORM OF ACCOUNTANTS' COMFORT LETTER
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EQUITY LINE FINANCING AGREEMENT dated as of July 2, 2002 (the
"Agreement"), between CANADIAN IMPERIAL HOLDINGS INC., a Delaware corporation
(the "Investor") and ASM INTERNATIONAL N.V., a corporation organized under the
laws of the Kingdom of the Netherlands (the "Company").
W I T N E S S E T H :
WHEREAS, the parties desire that the Company may issue to the Investor,
and, upon the terms and subject to the conditions contained herein, the Investor
shall purchase from the Company, from time to time as provided herein, shares of
the Company's common shares, E.04 par value per share (the "Common Stock"), for
a maximum aggregate Purchase Price of $65,000,000 (the "Maximum Offering
Amount"); and
WHEREAS, contemporaneous with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration Rights
Agreement (the "Registration Rights Agreement"), pursuant to which the Company
has agreed to provide to the Investor certain registration rights thereunder and
under the Securities Act, the rules and regulations promulgated thereunder and
applicable state securities laws; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Investor hereby agree as follows:
I. CERTAIN DEFINITIONS
Section 1.1 Defined Terms.
As used in this Agreement (including the recitals above), the following
terms shall have the following meanings specified or indicated (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined):
"Affiliate" shall mean, with respect to a specified Person, a Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such specified Person.
"Applicable Quantity" shall mean, with respect to each purchase of
Common Stock on a Closing Date pursuant to this Agreement, the number of shares
of Common Stock that is purchased by the Investor, calculated as the quotient of
the Company Put Amount, divided by the relevant Purchase Price, rounded up or
down to the nearest whole number of shares.
"Balance Sheet" shall mean the unaudited consolidated balance sheet of
the Company as of March 31, 2002.
"Benefit Plan" shall have the meaning set forth in Section 5.11 hereof.
"Blocking Event" shall have the meaning set forth in Section 2.5(a)
hereof.
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"Blocking Notice" shall have the meaning set forth in Section 4 of the
Registration Rights Agreement.
"Bloomberg" shall mean Bloomberg Financial Press.
"Blue Sky Laws" shall mean the United States state securities and
takeover laws.
"Calculation Date" shall mean the fifth Trading Day following a Notice
Date.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
any and all equivalent ownership interests in a Person (other than a
corporation).
"Closing" shall mean the consummation of each purchase and sale of
Common Stock pursuant to Section 2.4 hereof.
"Closing Date" shall mean a date that is at least five Business Days
following a Notice Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment Period" shall mean the period commencing on the date hereof
and expiring on the earliest to occur of (a) the election by the Investor to
terminate this Agreement pursuant to Section 9.4 herein, (b) the date on which
the Investor shall have made purchases of Common Stock pursuant to this
Agreement in an aggregate Purchase Price of $65,000,000, (c) the date this
Agreement is terminated pursuant to Section 2.5, and (d) July 6, 2003.
"Common Stock" shall have the meaning set forth in the first recital of
this Agreement.
"Company Assets" shall have the meaning set forth in Section 5.15
hereof.
"Company Put Amount" shall have the meaning set forth in Section 2.1(a)
hereof.
"Company Put Notice" shall have the meaning set forth in Section 2.3(a)
hereof.
"Compensation Plans" shall mean any stock or option or similar
equity-based compensation plans.
"Condition Satisfaction Date" shall have the meaning set forth in
Section 3.2 hereof.
"Disclosure Schedule" shall mean a disclosure schedule, delivered by
the Company to the Investor on the date of this Agreement, concerning the
representations and warranties of the Company set forth in Article V of this
Agreement.
"Dollars," "$" or "U.S.$" shall mean United States dollars.
"Effective Date" shall mean such date as all of the three following
conditions shall have occurred: (i) the Company shall have delivered the fully
executed Registration Rights Agreement, and any other documents required to be
delivered pursuant to the terms of this
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Agreement, (ii) the Company shall have indicated to the Investor in writing that
the Exhibits to this Agreement are in final form and delivered such Exhibits to
the Investor, and (iii) the Registration Statement shall have become effective.
"Environmental Laws" shall mean all federal, state, local and foreign
laws and regulations primarily relating to pollution or the environment
(including, without limitation, ambient air, surface water, ground water, land
surface or subsurface strata), including, without limitation, laws and
regulations primarily relating to emissions, discharges, releases or threatened
releases of Materials of Environmental Concern, or otherwise primarily relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern.
"Equity Offering" shall mean the issuance and sale by the Company, (a)
in a registered public offering or (b) in a transaction exempt from or not
subject to the registration requirements of the Securities Act, of any shares of
Common Stock or securities which are convertible into or exchangeable for the
Company's Common Stock or any warrants, options or other rights to subscribe for
or purchase Common Stock or any such convertible or exchangeable securities
(other than securities issued or issuable to any present or future or former (at
the time of issuance) employee, officer, director or consultant of the Company
or its Subsidiaries pursuant to any Compensation Plans), upon the conversion or
exchange of convertible or exchangeable securities or upon the exercise of
warrants, or other rights, or upon the issuance of any shares of Common Stock
issued upon exercise of options, conversion or exchange of convertible or
exchangeable securities, warrants or other rights outstanding on the date of
execution and delivery of this Agreement, but other than (i) those listed or
described in the SEC Documents, (ii) shares of Common Stock which may be issued
upon exercise of options or other rights granted under the Compensation Plans,
and (iii) shares of Common Stock or securities which are convertible into or
exchangeable for Common Stock or any warrants, options or other rights to
subscribe for or purchase Common Stock or any such convertible or exchangeable
securities, in each case which are issued in strategic partnering transactions
that do not result in an acquisition of a business or a change in control of the
Company.
"Equity Offering Purchase Price" shall mean the lowest effective
purchase price per share of the Common Stock (or other securities as described
in the definition of "Equity Offering," determined on a common stock equivalent
basis and including any exercise or conversion price) in an Equity Offering,
expressed as a percentage of the simple average of the daily volume weighted
average price of the Common Stock for the five Trading Days prior to the date of
the Equity Offering, as reported on Bloomberg.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, together with the rules and regulations promulgated thereunder.
"GAAP" shall have the meaning set forth in Section 5.8(a).
"Governmental Entity" shall mean any federal, state, local or foreign
legislative body, court, government, department or instrumentality, or
governmental, administrative or regulatory authority or agency.
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"Investment Amount" shall mean, with respect to any purchase of shares
of Common Stock on a Closing Date under this Agreement, the product of the
Purchase Price and the Applicable Quantity.
"Knowledge of the Company" shall mean the actual knowledge, without
independent inquiry, of any of the executive officers of the Company.
"Knowledge of the Investor" shall mean the actual knowledge, without
independent inquiry, of any of the persons executing this agreement on behalf of
the Investor.
"Liens" shall have the meaning set forth in Section 5.15 hereof.
"Material Adverse Effect" shall mean any effect on the business,
operations, properties or financial condition of the Company which is material
and adverse to the Company or to the Company and any other entities controlled
by the Company, taken as a whole, or any condition or situation which could
prohibit, impair or otherwise interfere with the ability of the Company to enter
into and perform its obligations under this Agreement or the Registration Rights
Agreement.
"Materials of Environmental Concern" shall mean hazardous substances as
defined under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. ss. 9601 et seq. and hazardous wastes as defined under
the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901, et seq. and
petroleum and petroleum products and such other chemicals, materials or
substances as are listed as "hazardous wastes", "hazardous materials", "toxic
substances", or words of similar import under any similar federal, state, local
or foreign laws.
"Maximum Offering Amount" shall have the meaning set forth in the first
recital of this Agreement.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notice Date" shall mean, with respect to each purchase and sale of
Common Stock pursuant to this Agreement, a Trading Day (which shall be at least
five Business Days following the previous Notice Date, if any, and at least 90
calendar days following the completion of any public offering of Common Stock)
on which the Company delivers to the Investor a Company Put Notice.
"Payment Date" shall mean the third Business Day following a Closing
Date.
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or subdivision thereof.
"Principal Market" shall mean the New York Stock Exchange, the American
Stock Exchange, the Nasdaq National Market, or any similar organization or
agency succeeding such market or exchange's functions of reporting prices,
whichever is at the time the principal U.S. trading exchange or market for the
Common Stock.
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"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any Prospectus supplement, including
post-effective amendments, and all material incorporated by reference in such
Prospectus.
"Purchase Price" shall have the meaning set forth in Section 2.4(c)
hereof.
"Registration Rights Agreement" shall have the meaning set forth in the
second recital of this Agreement.
"Registration Statement" shall have the meaning set forth in Section
3.2(a) hereof.
"Representatives" shall have the meaning set forth in Section 3.3(a)
hereof.
"SEC" shall mean the Securities and Exchange Commission.
"SEC Documents" shall have the meaning set forth in Section 5.8 hereof.
"Securities Act" shall have the meaning set forth in the recitals
above.
"Stock Price" on a given Trading Day shall mean the volume-weighted
average trading price for the Common Stock on the Principal Market during such
Trading Day as reported by Bloomberg.
"Subsidiary" shall mean, with respect to any Person, any corporation,
limited or general partnership, trust, association or other business entity of
which 50% or more of the outstanding Capital Stock or other interests entitled
to vote in the election of the board of directors of such corporation
(irrespective of whether, at the time, Capital Stock of any other class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency), managers, trustees or other controlling
persons, or an equivalent controlling interest therein, of such Person is, at
the time, directly or indirectly, owned by such Person and/or one or more
Subsidiaries of such Person.
"Tax Return" shall mean any report, return, information statement or
other information required to be supplied to any federal, state, local or
foreign taxing authority, or any election permitted to be made, in connection
with Taxes.
"Taxes" shall mean all taxes, charges, fees, levies, duties or other
assessments, including without limitation all net income, gross income, gross
receipts, franchise, value added, sales, use, property, ad valorem, transfer,
withholding, profits, license, employee, payroll, social security, unemployment,
excise, estimated, severance and any other taxes, duties, withholdings, fees,
assessments or charges of any kind whatsoever, including any interest, penalties
or additional amounts attributable thereto, imposed by any federal, state, local
or foreign taxing authority.
"Trading Day" shall mean any day during which the Principal Market
shall be open for business and on which trading of the Common Stock on the
Principal Market shall not have been suspended or limited.
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"Volume Limit" shall mean, with respect to each purchase and sale of
Common Stock pursuant to a Company Put Notice, that number of shares equal to
25% of the reported trading volume of the Common Stock, as reported by
Bloomberg, for the week immediately preceding the week during which the Company
delivers to the Investor a Company Put Notice.
II. PURCHASE AND SALE OF COMMON STOCK
Section 2.1 Investments.
Subject to the terms and conditions set forth herein (including,
without limitation, the provisions of Article III hereof), during the Commitment
Period:
(a) Company Put. If, during the Commitment Period, the Company elects
to deliver a Company Put Notice to the Investor in accordance with Section
2.3(a) hereof, then upon the delivery of such Company Put Notice, the Investor
shall be obligated to purchase from the Company shares of Common Stock (not to
exceed the Volume Limit) on the Closing Date specified therein for an Investment
Amount specified therein, which Investment Amount shall not exceed $10,000,000
(the "Company Put Amount" for such Company Put Notice).
Section 2.2 Limitations on Investment Amounts.
(a) Overall Maximum. In no event shall the aggregate dollar amount of
the purchases of Common Stock made by the Investor at Closings pursuant to
Section 2.1 exceed the Maximum Offering Amount, less the aggregate dollar amount
of purchases of Common Stock by the Investor pursuant to the Equity Line
Financing Agreement dated July 6, 2000, as amended, between Investor and the
Company.
(b) 9.9% Limit. Notwithstanding anything herein to the contrary, the
Investor shall not be required or entitled to purchase shares of Common Stock
pursuant to this Agreement on any Closing Date to the extent such purchase, when
aggregated with all other shares of Common Stock then beneficially owned or
deemed beneficially owned by the Investor and all purchases of Common Stock
pursuant to this Agreement or otherwise within the previous sixty days, would
result in the Investor or any Affiliate of the Investor beneficially owning more
than 9.9% of all the issued and outstanding Common Stock on such Closing Date.
Section 2.3 Mechanics of Notification.
(a) Company Put Notice. On any Notice Date, unless otherwise agreed by
the parties to this Agreement, the Chief Executive Officer or the Chief
Financial Officer of the Company (or such other person as designated by either
in writing) may, at the Company's sole discretion, deliver a written notice to
the Investor (each such notice being a "Company Put Notice") which specifies the
Company Put Amount and the Calculation Date for determining the Applicable
Quantity to be purchased by the Investor on the Closing Date specified therein.
(b) Date of Delivery of Notices.
(i) Notices to the Investor. A Company Put Notice or any other
notice sent by the Company to the Investor shall be deemed to be delivered on
the Trading Day it is
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transmitted by facsimile with confirmation of acceptance or otherwise received
in writing via courier, hand delivery or first-class mail (return receipt
requested) by the Investor, or, if received on any day which is not a Trading
Day, shall be deemed to be delivered on the immediately succeeding Trading Day.
(ii) Notices to the Company. Any notice sent by the Investor
to the Company shall be deemed to be delivered on the Trading Day it is
transmitted by facsimile with confirmation of acceptance or otherwise received
in writing via courier, hand delivery or first-class mail (return receipt
requested) by the Company, or, if received on any day which is not a Trading
Day, shall be deemed to be delivered on the immediately succeeding Trading Day.
Section 2.4 Closings.
(a) Deliveries at Closings. On each Closing Date pursuant to a Company
Put Notice (A) the Company shall deliver to the Investor one or more
certificates representing the Applicable Quantity registered in the name of the
Investor or, at the Investor's option, deposit such certificate(s) into such
account or accounts previously designated by the Investor, and (B) the Investor
shall deliver to the Company the Company Put Amount.
(b) On or prior to each Closing Date, each of the Company and the
Investor shall deliver all documents, instruments and writings required to be
delivered or reasonably requested by either of them pursuant to this Agreement
in order to implement and effect the transactions contemplated herein.
(c) Purchase Price Per Share. The purchase price per share of Common
Stock (the "Purchase Price") shall be determined on the Calculation Date as an
amount equal to 95.5% of the simple average of the daily Stock Price for the
five previous Trading Days (as reported on Bloomberg).
Section 2.5 Termination, Suspension and Modification of Investment
Obligation.
(a) Blocking Events. The Investor may, but shall not be required to,
purchase any shares of Common Stock from the Company on any Closing Date
pursuant to a Company Put Notice delivered at any time during the Commitment
Period when there shall exist any one or more of the following: (A) the
withdrawal of the effectiveness of the Registration Statement, (B) the Company's
failure to satisfy the requirements of Section 3.2 or 3.3, or (C) any failure or
interruption in the compliance by the Company with the covenants provided in
Article VI (each of (A), (B), and (C), a "Blocking Event").
(b) Additional Events of Termination of Investor Obligation. The
obligation of the Investor to purchase shares of Common Stock under this
Agreement may, if the Investor in its sole and absolute discretion so elects, be
terminated in the event that (i) there shall occur any stop order or suspension
of the effectiveness of the Registration Statement, or any withdrawal of the
effectiveness of the Registration Statement for a period greater than twenty
(20) Trading Days for any reason other than as a result of subsequent corporate
developments which would require such Registration Statement to be amended to
reflect such event in order to maintain its compliance with the disclosure
requirements of the Securities Act; or (ii) the Company shall at any time fail
to comply with the requirements of Sections 6.2, 6.3, 6.4, 6.5 or 6.6 and the
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Company shall fail to cure such noncompliance within (A) (1) if the
noncompliance relates to a failure to comply with the provisions of Sections
6.3, 6.4, 6.5 or 6.6, thirty (30) calendar days after receipt of notice from the
Investor of its election to terminate this Agreement or (2) if the noncompliance
relates to a failure to comply with the provisions of Section 6.2, ninety (90)
calendar days after receipt of notice from the Investor of its election to
terminate this Agreement, provided in either case that the Investor has been
notified by the Company of such noncompliance within five (5) Trading Days of
the Chief Executive Officer, Chief Financial Officer or Treasurer of the Company
having become aware of the occurrence of such noncompliance or, if the
noncompliance relates to a failure of the Company to comply with the provisions
of Section 6.6, the Investor otherwise becomes aware of such noncompliance or
(B) otherwise within five (5) Trading Days of the Chief Executive Officer, Chief
Financial Officer or Treasurer of the Company having become aware of the
occurrence of such noncompliance; provided, however, that notwithstanding the
foregoing, the Investor may, in its sole and absolute discretion, terminate this
Agreement if the Company shall fail to maintain the listing of the Common Stock
on a Principal Market, or if trading of the Common Stock on a Principal Market
shall have been suspended for a period of ten (10) consecutive Trading Days.
III. CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to the Obligation of the Company to
Issue and Sell Common Stock.
The obligation hereunder of the Company to issue and sell Common Stock
to the Investor incident to each Closing is subject to the satisfaction, at or
before each such Closing, of each of the conditions set forth below, which
conditions cannot be waived without the prior written consent of the Company.
(a) Accuracy of the Investor's Representations and Warranties. The
representations and warranties of the Investor set forth in this Agreement shall
be true and correct in all material respects as of the date of each such Closing
as though made at each such time.
(b) Performance by the Investor. The Investor shall have performed,
satisfied and complied in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Investor at or prior to such Closing.
(c) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits or adversely affects any of the transactions contemplated by this
Agreement, and no proceeding shall have been commenced which would be reasonably
likely to have the effect of prohibiting or adversely affecting any of the
transactions contemplated by this Agreement.
Section 3.2 Conditions Precedent to the Obligation of the Investor to
Purchase Common Stock.
The obligation of the Investor to purchase pursuant to a Company Put
Notice and the right of the Company to deliver a Company Put Notice and the
obligation of the Investor
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hereunder to acquire and pay for Common Stock incident to a Closing is subject
to the satisfaction, on the date of delivery of a Company Put Notice, and on the
applicable Closing Date (each a "Condition Satisfaction Date") of each of the
following conditions, which conditions may be waived with the prior written
consent of the Investor.
(a) Registration of the Common Stock with the SEC. The Company shall
have filed with the SEC a registration statement on Form F-3, any successor form
thereto or other appropriate form (the "Registration Statement") for the
registration of the resale of the Common Stock to be acquired pursuant to this
Agreement, under the Securities Act, in accordance with the terms of the
Registration Rights Agreement. Furthermore, the Company shall have filed (i)
with the applicable state securities commissions such blue sky filings as shall
have been reasonably requested by the Investor in accordance with the terms of
the Registration Rights Agreement, and (ii) any required filings with the NASD
or exchange or market where the Common Stock is traded.
(b) Effective Registration Statement. The Registration Statement shall
be in effect and shall remain effective on each Condition Satisfaction Date and
(i) neither the Company nor the Investor shall have received notice that the SEC
has issued or intends to issue a stop order with respect to the Registration
Statement or that the SEC otherwise has suspended or withdrawn the effectiveness
of the Registration Statement, either temporarily or permanently, or intends or
has threatened to do so, and (ii) no other suspension of the use of the
Registration Statement or related Prospectus shall exist.
(c) Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company as set forth in this Agreement and
the Registration Rights Agreement shall be true and correct in all material
respects as of each Condition Satisfaction Date as though made at each such time
(except for representations and warranties made as of a specific date).
(d) Performance by the Company. The Company shall have performed,
satisfied and complied with in all material respects all covenants, agreements
and conditions required by this Agreement and the Registration Rights Agreement
to be performed, satisfied or complied with by the Company at or prior to each
Condition Satisfaction Date.
(e) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits or adversely affects any of the transactions contemplated by this
Agreement, and no proceeding shall have been commenced which may have the effect
of prohibiting or adversely affecting any of the transactions contemplated by
this Agreement.
(f) Adverse Changes. Since March 31, 2002, the date through which the
most recent quarterly report of the Company on Form 6-K has been prepared and
filed with the SEC, no event which had or is reasonably likely to have a
Material Adverse Effect has occurred, except as disclosed in the SEC Documents
or Company press releases subsequent to such date.
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(g) No Suspension of Trading In or Delisting of Common Stock. The
trading of the Common Stock shall not have been suspended by the SEC, the
Principal Market or the NASD, and the Common Stock shall have been approved for
listing or quotation on and shall not have been delisted from the Principal
Market. The issuance of shares of Common Stock with respect to the applicable
Closing, if any, shall not violate the shareholder approval requirements of the
Principal Market.
(h) Legal Opinions. The Company shall have caused to be delivered to
the Investor, within five (5) Trading Days following (i) the effective date of
the Registration Statement and (ii) the delivery by the Company of a Company Put
Notice, a letter of the Company's independent counsel containing the opinions
and statements set forth in Exhibit A hereto, addressed to the Investor and
stating, inter alia, that, without independently checking the accuracy of or
completeness of, or otherwise verifying any statements of fact contained in the
Registration Statement, no facts have come to such counsel's attention that has
caused it to believe that the Registration Statement (as amended, if
applicable), contains an untrue statement of material fact or omits a material
fact required to make the statements contained therein, not misleading or that
the underlying Prospectus (if applicable, as so amended or supplemented)
contains an untrue statement of material fact or omits a material fact required
to make the statements contained therein, in light of the circumstances in which
they were made, not misleading; provided, however, that in the event that such a
letter cannot be delivered by the Company's independent counsel to the Investor,
the Company shall promptly notify the Investor and promptly revise the
Registration Statement, and the Company shall not deliver a Company Put Notice
or, if a Company Put Notice shall have been delivered in good faith without
knowledge by the Company that a letter of independent counsel cannot be
delivered as required, shall postpone, if necessary, any pending Closing Date
for a period of up to five (5) Trading Days until such a letter is delivered to
the Investor (or such Closing shall otherwise be canceled). In the event of such
a postponement, the Purchase Price of the Common Stock to be issued at such
Closing as determined pursuant to Section 2.4 shall be the lower of such
Purchase Price as calculated as of the originally scheduled Closing Date or
calculated as of the actual Closing Date.
(i) Accountant's Letter.
(i) The Company shall have caused to be delivered to the
Investor a comfort letter of its independent auditors in substantially the form
attached as Exhibit B hereto (x) within five (5) Trading Days following the
effective date of the Registration Statement and (y) within ten (10) Trading
Days following the filing with the SEC of each SEC Document containing unaudited
financial statements of the Company which is deemed to be incorporated by
reference in the Registration Statement.
(ii) In the event that the Investor shall have requested
delivery of an "agreed upon procedures" report pursuant to Section 3.3, the
Company shall engage its independent auditors to perform certain agreed upon
procedures and report thereon as shall have been reasonably requested by the
Investor with respect to certain financial information of the Company and the
Company shall deliver to the Investor a copy of such report addressed to the
Investor.
10
(iii) In the event that a report required by this Section 3.2
cannot be delivered by the Company's independent auditors, the Company shall, if
necessary, promptly revise the Registration Statement and the Company shall not
deliver a Company Put Notice or, if a Company Put Notice shall have been
delivered in good faith without knowledge by the Company that a report of its
independent auditors cannot be delivered as required, postpone such Closing Date
for a period of up to five (5) Trading Days until such a report is delivered (or
such Closing shall otherwise be canceled). In the event of such a postponement,
the Purchase Price of the Common Stock to be issued at such Closing as
determined pursuant to Section 2.4 shall be the lower of such Purchase Price as
calculated as of the originally scheduled Closing Date and as of the actual
Closing Date.
(j) Officer's Certificate. The Company shall have delivered to the
Investor, on each Closing Date, a certificate in form and substance reasonably
acceptable to the Investor, executed by an executive officer of the Company, to
the effect that all the conditions to such Closing shall have been satisfied as
at the date of each such certificate.
(k) Due Diligence. No dispute between the Company and the Investor
shall exist pursuant to Section 3.3 as to the adequacy of the disclosure
contained in the Registration Statement.
Section 3.3 Due Diligence Review.
(a) Availability of Information. The Company shall make available,
during normal business hours, for inspection and review by the Investor and its
Affiliates, external legal advisors and independent accountants (which counsel
and accountants shall be reasonably acceptable to the Company and, together with
the Affiliates of the Investor, are referred to herein as "Representatives"),
all financial and other records, all SEC Documents and other filings with the
SEC, and all other corporate documents and properties of the Company as may be
reasonably necessary for the purpose of such review, and cause the Company's
officers, directors and employees, within a reasonable time period, to supply
all such information reasonably requested by the Investor or any of its
Representatives in connection with such Registration Statement (including,
without limitation, in response to all questions and other inquiries reasonably
made or submitted by any of them), prior to and from time to time after the
filing and effectiveness of the Registration Statement for the sole purpose of
enabling the Investor and such Representatives to conduct initial and ongoing
due diligence with respect to the Company and the accuracy of the Registration
Statement. Notwithstanding the foregoing, the Investor and its Representatives
shall be allowed to disclose the information described above to any U.S.,
Canadian or other securities regulator in connection with an examination by such
regulator of the Investor.
(b) Nonpublic Information.
(i) The Company shall not disclose nonpublic information to
the Investor, advisors to or representatives of the Investor unless prior to
disclosure of such information the Company identifies such information as being
nonpublic information and provides the Investor, such advisors and
representatives with the opportunity to accept or refuse to accept such
nonpublic information for review. The Company may, as a condition to disclosing
any nonpublic information hereunder, require the Investor's advisors and
representatives to enter into
11
a confidentiality agreement (including an agreement with such advisors and
representatives prohibiting them from trading in Common Stock during such period
of time as they are in possession of nonpublic information) in form reasonably
satisfactory to the Company and the Investor.
(ii) Nothing herein shall require the Company to disclose
nonpublic information to the Investor or its advisors or representatives, and
the Company represents that it does not disseminate nonpublic information to any
investors who purchase stock in the Company in a public offering, to money
managers or to securities analysts, provided, however, that notwithstanding
anything herein to the contrary, the Company will, as hereinabove provided,
immediately notify the advisors and representatives of the Investor and, if any,
underwriters, of any event or the existence of any circumstance (without any
obligation to disclose the specific event or circumstance) of which it becomes
aware, constituting nonpublic information (whether or not requested of the
Company specifically or generally during the course of due diligence by any such
persons or entities), which, if not disclosed in the Prospectus included in the
Registration Statement, would cause such Prospectus to include a material
misstatement or to omit a material fact required to be stated therein in order
to make the statements therein, in light of the circumstances in which they were
made, not misleading. Nothing contained in this Section 3.3 shall be construed
to mean that such persons or entities other than the Investor (without the
written consent of the Investor prior to disclosure of such information) may not
obtain nonpublic information in the course of conducting due diligence in
accordance with the terms of this Agreement; provided, however, that in no event
shall the Investor's advisors or representatives disclose to the Investor the
nature of the specific event or circumstances constituting any nonpublic
information discovered by such advisors or representatives in the course of
their due diligence without the written consent of the Investor prior to
disclosure of such information. The Investor's advisors or representatives shall
make complete disclosure to the Investor's independent counsel of all events or
circumstances constituting nonpublic information discovered by such advisors or
representatives in the course of their due diligence upon which such advisors or
representatives form the opinion that the Registration Statement contains an
untrue statement of a material fact or omits a material fact required to be
stated in the Registration Statement or necessary to make the statements
contained therein, in the light of the circumstances in which they were made,
not misleading. Upon receipt of such disclosure, the Investor's independent
counsel shall consult with the Company's independent counsel in order to address
the concern raised as to the existence of a material misstatement or omission
and to discuss appropriate disclosure with respect thereto; provided, however,
that such consultation shall not constitute the advice of the Company's
independent counsel to the Investor as to the accuracy of the Registration
Statement and related Prospectus. In the event after such consultation the
Investor's independent counsel reasonably believes that the Registration
Statement contains an untrue statement of a material fact or omits a material
fact required to be stated in the Registration Statement or necessary to make
the statements contained therein, in light of the circumstances in which they
were made, not misleading, (A) the Company shall file with the SEC an amendment
to the Registration Statement responsive to such alleged untrue statement or
omission and provide the Investor, as promptly as practicable, with copies of
the Registration Statement and related Prospectus, as so amended, (B) if the
Company disputes the existence of any such material misstatement or omission,
and (1) the dispute relates to information other than financial statements,
schedules and other financial or statistical information included or
incorporated by reference therein, the Company's independent counsel
12
shall provide the Investor's independent counsel with a letter (customary in
form and scope as provided to an underwriter in an underwritten public offering)
stating that, without independently checking the accuracy or completeness of, or
otherwise verifying, any statements of fact contained in the Registration
Statement, nothing has come to their attention that would lead them to believe
that the Registration Statement or the related Prospectus, as of the date of
such letter, contains an untrue statement of a material fact or omits a material
fact required to be stated in the Registration Statement or the related
Prospectus or necessary to make the statements contained therein, in light of
the circumstances in which they were made, not misleading or (2) in the event
the dispute relates to the adequacy of financial disclosure and the Investor
shall reasonably request, the Company's independent auditors shall provide to
the Company a letter outlining the performance of such "agreed upon procedures"
as shall be reasonably requested by the Investor and the Company shall provide
the Investor with a copy of such letter, or (C) if the Company disputes the
existence of any such material misstatement or omission, and the dispute relates
to the timing of disclosure of a material event and the Company's independent
counsel is unable to provide the letter referenced in clause (B)(1) above to the
Investor, then this Agreement shall be suspended for a period of up to thirty
(30) days (or if a Blocking Notice has occurred and is occurring at the end of
such period, such period shall be extended until the date of the expiration of
such Blocking Notice) and, at the end of which, if the dispute still exists
between the Company's independent counsel and the Investor's independent
counsel, either (x) the Company shall amend the Registration Statement as
provided above or provide to the Investor the Company's independent counsel
letter or a copy of the letter of the Company's independent auditors referenced
above, as applicable, or (y) the obligation of the Investor to purchase shares
of Common Stock pursuant to this Agreement shall terminate.
IV. REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor represents and warrants to the Company as follows:
Section 4.1 Authority.
The Investor has full power and authority to execute and deliver this
Agreement and the Registration Rights Agreement, and to consummate the
transactions contemplated hereby and thereby in accordance with the terms hereof
and thereof. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by the
Investor. No other proceedings on the part of Investor are necessary to approve
and authorize the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby in accordance with the terms hereof.
This Agreement has been validly executed and delivered by the Investor and is a
valid and binding agreement of the Investor enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency or similar laws
relating to, or affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general application.
Section 4.2 No Brokers.
The Investor has taken no action that would give rise to any claim by
any person (other than the Investor as set forth in Section 10.2 hereof) for
brokerage commission, finder's fees or
13
similar payments by the Company relating to this Agreement or the transactions
contemplated hereby.
Section 4.3 Not an Affiliate.
The Investor is not an officer, director or Affiliate of the Company.
Section 4.4 Organization and Standing.
The Investor is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Delaware, and has all requisite
power and authority as a corporation to carry on its business as now being
conducted, and is duly qualified to do business and in good standing in each
jurisdiction in which the nature of the business conducted by it makes such
qualifications necessary, except where the failure to be so qualified or in good
standing would not reasonably be expected to have a material adverse effect.
Section 4.5 Absence of Conflicts.
The execution and delivery of this Agreement and any other document or
instrument executed in connection herewith, and the consummation of the
transactions contemplated hereby and thereby, and compliance with the
requirements hereof and thereof, will not violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on the Investor, or
the provision of any indenture, instrument or agreement to which the Investor is
a party or is subject, or by which the Investor or any of its assets is bound,
or conflict with or constitute a material default thereunder, or result in the
creation or imposition of any lien pursuant to the terms of any such indenture,
instrument or agreement, or constitute a breach of any fiduciary duty owed by
the Investor to any third party, or require the approval of any third party
(which has not been obtained) pursuant to any material contract, agreement,
instrument, relationship or legal obligation to which the Investor is subject or
to which any of its assets, operations or management may be subject.
Section 4.6 Disclosure: Access to Information.
The Investor has received all documents, records, books and other
information pertaining to the Investor's investment in the Company that have
been requested by the Investor. The Investor further acknowledges that it
understands that the Company is subject to the periodic reporting requirements
of the Exchange Act, and the Investor has reviewed or received copies of any
such reports that have been requested by it and that it considers necessary or
appropriate for deciding whether to enter into this Agreement and perform its
obligations hereunder. The Investor further represents that it had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the purchase of the Common Stock and the business,
properties, prospects and financial condition of the Company.
Section 4.7 No Hedging or Short Selling.
(a) During the period sixty (60) days prior to the date of this
Agreement the Investor has not engaged in any short sales or hedging of any kind
in anticipation of this Agreement.
14
(b) During the term of this Agreement the Investor may make sales in
anticipation of Company Put Notices, but may not make any sales with the
intention of reducing the price of the Common Stock to Investor's benefit.
Section 4.8 Compliance with Securities Laws.
The Investor acknowledges and agrees that any transactions in the
Common Stock effected by the Investor shall comply with all applicable
securities laws, including, without limitation, if applicable, Regulation M
promulgated under the Exchange Act.
V. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in the SEC Documents, Company press releases or in
the Disclosure Schedule delivered by the Company to the Investor on the date
hereof, the Company represents and warrants to the Investor as follows:
Section 5.1 Corporate Organization.
The Company and each of its Subsidiaries is a corporation duly
organized, validly existing and, if applicable, in good standing under the laws
of its jurisdiction of incorporation, and has all requisite corporate power and
authority to own or lease and operate its properties and to carry on its
business as now being conducted, and is duly qualified to do business and in
good standing in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing would not reasonably be expected to have a Material Adverse Effect. The
Company has made available to the Investor or its agents complete and correct
copies of the Certificate of Incorporation, as amended, and by-laws of the
Company as in effect on the date hereof.
Section 5.2 Capitalization.
(a) The authorized Capital Stock of the Company consists of (i)
110,000,000 shares of Common Stock, E.04 par value per share, (ii) 118,000
shares of preferred stock, E40 par value per share (the "Preferred Stock") and
(iii) 8,000 financing preferred shares, E40 par value per share (the "Financing
Preferred Stock"). As of June 27, 2002, there were (i) 49,151,708 shares of
Common Stock issued, all of which are duly authorized and validly issued, fully
paid and nonassessable, (ii) no shares of Common Stock owned by the Company in
its treasury and (iii) 3,350,300 shares of Common Stock reserved for issuance
pursuant to stock options granted or which may be granted under the Compensation
Plans. As of the same date, there were no shares of Preferred Stock or Financing
Preferred Stock outstanding. The Company has not issued any Common Stock since
March 31, 2002, except pursuant to the exercise of stock options or pursuant to
the Company's Compensation Plans, nor has the Company since such date
repurchased or redeemed or acquired any such shares. No shares of Capital Stock
of the Company are entitled to preemptive rights.
(b) Except as set forth in Section 5.2(a) above and in Schedule 5.2(b),
the Company does not have outstanding any Capital Stock or securities
convertible into or exchangeable for any shares of Capital Stock or any options,
warrants or other rights, agreements, arrangements or
15
commitments of any character to which the Company is a party or otherwise
obligating the Company to issue or sell or entitling any Person to acquire from
the Company, and the Company is not a party to any agreement, arrangement or
commitment obligating it to repurchase, redeem or otherwise acquire, any shares
of its Capital Stock or securities convertible into or exchangeable for any of
its Capital Stock.
(c) Upon issuance of the Common Stock, and payment of the Purchase
Price therefor, pursuant to a purchase and sale in accordance with the terms of
this Agreement, the Company will transfer to the Investor good and valid title
to the Common Stock, free and clear of any material Lien, other than Liens, if
any, created by the Investor and such Common Stock will be duly authorized,
fully paid and nonassessable.
Section 5.3 Subsidiaries.
(a) The Company does not have any Subsidiaries that own material assets
or are subject to material liabilities, other than those listed on Schedule
5.3(a) of the Disclosure Schedule. Except as set forth in Schedule 5.3(a), each
Subsidiary is, directly or indirectly, wholly-owned by the Company.
(b) Except as set forth in Schedule 5.3(b), (i) all the outstanding
stock or other equity or ownership interests of each Subsidiary is owned free
and clear of all material Liens and is validly issued and (ii) there are no
options, warrants or other rights, agreements, arrangements or commitments of
any character to which any Subsidiary is a party or otherwise obligating any
Subsidiary to issue or sell, or entitling any Person to acquire from any
Subsidiary, and no Subsidiary is a party to any agreement, arrangement or
commitment obligating it to repurchase, redeem or otherwise acquire, any shares
of the Capital Stock or any securities convertible into or exchangeable for the
Capital Stock of any such Subsidiary.
Section 5.4 Authorization.
The Company has full corporate power and authority to execute and
deliver this Agreement and the Registration Rights Agreement, to issue the
Common Stock pursuant to this Agreement, and to consummate the transactions
contemplated hereby and thereby in accordance with the terms hereof and thereof.
The execution and delivery of this Agreement and the Registration Rights
Agreement, and the issuance of the Common Stock issuable upon a Closing, and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors of the Company. To the Knowledge of the
Company, no other corporate proceedings on the part of the Company are necessary
to approve and authorize the execution and delivery of this Agreement and the
Registration Rights Agreement, and the issuance of the Common Stock issuable
upon a Closing, and the consummation of the transactions contemplated hereby and
thereby in accordance with the terms hereof and thereof. This Agreement and the
Registration Rights Agreement have been duly executed and delivered by the
Company, and the Common Stock issuable in accordance with the terms of this
Agreement, upon the payment of the purchase price therefor in accordance with
the terms hereof and thereof, will be duly and validly issued, fully paid and
nonassessable. Each of this Agreement and the Registration Rights Agreement
constitute valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to applicable
16
bankruptcy, insolvency or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
Section 5.5 No Violation; Consents.
(a) Assuming the making or receipt of all filings, notices,
registrations, consents, approvals, permits and authorizations described in this
Section 5.5, the execution and delivery of this Agreement and the Registration
Rights Agreement, and the consummation of the transactions contemplated hereby
and by the Registration Rights Agreement, the compliance by the Company with any
of the provisions hereof or of the Registration Rights Agreement, will not (i)
conflict with, violate or result in any breach of the Certificate of
Incorporation, as amended, or bylaws of the Company or its Subsidiaries, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default or give rise to any right of termination,
cancellation or acceleration under, or result in the creation of any Lien on or
against any of the properties of the Company or any of its Subsidiaries pursuant
to any of the terms or conditions of any note, bond, mortgage, indenture,
license, agreement or other instrument or obligation to which the Company or any
of its Subsidiaries is a party or by which any of them or any of their
properties or assets may be bound, or (iii) violate any statute, law, rule,
regulation, writ, injunction, judgment, order or decree of any Governmental
Entity, binding on the Company or any of its Subsidiaries or any of their
properties or assets, excluding from the foregoing clauses (i), (ii) and (iii)
conflicts, violations, breaches, defaults, rights of termination, cancellation
or acceleration, and liens which, individually or in the aggregate, would not
have a Material Adverse Effect, would not prevent or materially delay
consummation of the transactions contemplated hereby and would not affect the
validity of the issuance of the Common Stock.
(b) Except for (i) applicable requirements, if any, under Blue Sky
Laws, (ii) the filing of additional listing applications with Nasdaq, and (iii)
the filing of the Registration Statement, no filing, consent, approval, permit,
authorization, notice, registration or other action of or with any Governmental
Entity is required to be made or obtained by or with respect to the Company or
any of its Subsidiaries in connection with the execution and delivery of this
Agreement and the Registration Rights Agreement, the issuance of the Common
Stock or the consummation by the Company of the transactions contemplated hereby
and thereby.
Section 5.6 Compliance With Applicable Law.
The businesses of the Company are not being conducted in violation of
any law, ordinance, rule, regulation, judgment, decree or order of any
Governmental Entity, except for possible violations which, individually or in
the aggregate, would not have a Material Adverse Effect. The Company and each of
its Subsidiaries possess all domestic and foreign governmental licenses,
permits, authorizations and approvals and have made all registrations and given
all notifications required under federal, state, local or foreign law to carry
on in all respects their businesses as currently conducted, except as otherwise
disclosed in writing by the Company to the Investor on or prior to the date
hereof, and except where the failure to have any such licenses, permits,
authorizations or approvals, individually or in the aggregate, would not have a
Material Adverse Effect. No investigation or review by any Governmental Entity
with respect to the Company or any of its Subsidiaries is pending or, to the
knowledge of the Company,
17
threatened, other than those the outcome of which, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 5.7 Litigation.
There is no claim, action or proceeding (including any condemnation
proceeding) pending or, to the Knowledge of the Company, threatened against or
relating to the Company or any of its Subsidiaries by or before any Governmental
Entity or arbitrator that if adversely determined, individually or in the
aggregate, would have a Material Adverse Effect, nor is there any judgment,
decree, injunction, rule or order of any Governmental Entity or arbitrator
outstanding against the Company or any of its Subsidiaries that has had, or
would reasonably be expected in the future to have, a Material Adverse Effect or
which reasonably could be expected to materially adversely affect the
transactions contemplated by this Agreement.
Section 5.8 SEC Documents, Financial Statements.
(a) The Common Stock is registered pursuant to Section 12(g) of the
Exchange Act and the Company has filed all reports, schedules, forms, statements
and other documents, together with all exhibits, financial statements and
schedules thereto required to be filed by it with the SEC pursuant to the
reporting requirements of the Exchange Act, including material filed pursuant to
Section 13(a) or 15(d) thereof (all of the foregoing, and all other documents
and registration statements, whether heretofore or hereafter filed by the
Company with the SEC since January 1, 1996, and the Registration Statement, when
declared effective, being hereinafter referred to as the "SEC Documents"). The
Common Stock is currently listed or quoted on the Principal Market, which is, as
of the date hereof, the Nasdaq National Market. The Company has delivered or
made available to the Investor true and complete copies of the SEC Documents
through June 10, 2002. The Company has not provided to the Investor any material
information which, according to applicable law, rule or regulation, should have
been disclosed publicly by the Company but which has not been so disclosed,
other than with respect to the transactions contemplated by this Agreement. As
of their respective dates, the SEC Documents complied in all material respects
with the requirements of the Exchange Act or the Securities Act, as the case may
be, and the rules and regulations of the SEC promulgated thereunder and other
federal, state and local laws, rules and regulations applicable to such SEC
Documents, and none of the SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated herein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. As of the date of
delivery by the Investor of the Prospectus contained in the Registration
Statement in connection with sales of Common Stock by the Investor, such
Prospectus will comply in all material respects with the requirements of the
Securities Act and the rules and regulations of the SEC promulgated thereunder,
and other federal, state and local laws, rules and regulations applicable to
such Prospectus, absent a Blocking Notice in effect on such date. The financial
statements of the Company included (or incorporated by reference) in the SEC
Documents comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting principles
in the United States of America ("GAAP") applied on a consistent basis during
the periods involved (except (i) as may be otherwise indicated in such financial
statements or the
18
notes thereto or (ii) in the case of unaudited interim statements, to the extent
they may not include footnotes or may be condensed or summary statements) and
fairly present in all material respects the consolidated financial position of
the Company and its Subsidiaries as of the dates thereof and the results of
operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal year-end audit adjustments).
(b) During the three (3) years preceding the date hereof, the SEC has
not issued an order preventing or suspending the use of any prospectus relating
to the offering of any shares of Common Stock or instituted proceedings for that
purpose.
Section 5.9 No Undisclosed or Contingent Liabilities.
Neither the Company nor any of its Subsidiaries has any claims,
liabilities or obligations of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether due or to become due) that would be required
to be reflected or reserved against on a consolidated balance sheet of the
Company and its consolidated Subsidiaries under GAAP, except for claims,
liabilities or obligations (i) reflected or reserved against on the Balance
Sheet, (ii) disclosed in the Company's most recent Form 20-F or any SEC Document
filed subsequent to such Form 20-F or (iii) incurred by the Company or any of
its Subsidiaries since March 31, 2002 in the ordinary course of business and
consistent with past practice and that, individually or in the aggregate, would
not have a Material Adverse Effect.
Section 5.10 Taxes.
The Company and its Subsidiaries have timely filed all necessary Tax
Returns and notices and have paid all federal, state, county, local and foreign
taxes of any nature whatsoever for all the tax years through December 31, 2001
indicated on such Tax Returns as being due and payable, to the extent such taxes
have become due (other than taxes which are being challenged in good faith by
the Company and have been adequately reserved for by the Company), except where
any failure to file or pay would not have a Material Adverse Effect. There are
no tax deficiencies which would reasonably be expected to have a Material
Adverse Effect; the Company and its Subsidiaries have paid all Taxes which have
become due and payable by the Company (other than Taxes that are being
challenged in good faith or have been adequately reserved for by the Company),
whether pursuant to any assessments, or otherwise, except where any failure to
pay would not have a Material Adverse Effect, and there is no further liability
(whether or not disclosed on such returns) or assessments for any such Taxes,
and no interest or penalties accrued or accruing with respect thereto; the
amounts currently set up as provisions for Taxes or otherwise by the Company and
its Subsidiaries on their books and records are sufficient in all material
respects for the payment of all their unpaid federal, foreign, state, county and
local taxes accrued through the dates as of which they speak, except where such
insufficiency would not have a Material Adverse Effect, and for which the
Company and its Subsidiaries may be liable in their own right, or as transferee
of the assets of, as successor to any other corporation, association,
partnership, joint venture or other entity.
19
Section 5.11 Employee Benefit Plan.
All employee benefit plans and other benefit arrangements covering the
employees of the Company and its Subsidiaries (the "Benefit Plans") have been
operated and administered in all material respects in compliance with their
terms and applicable law, and there are no claims, liabilities or obligations of
any kind whatsoever relating to the Benefit Plans which individually or in the
aggregate would have a Material Adverse Effect.
Section 5.12 Absence of Certain Changes.
Since March 31, 2002, the business of the Company and its Subsidiaries
has been conducted in the ordinary course consistent with past practices and
there has not been:
(a) to the Knowledge of the Company, any event, occurrence, development
or state of circumstances or facts which, individually or in the aggregate, has
had or would reasonably be expected to have a Material Adverse Effect;
(b) any declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of Capital Stock of the Company or any
repurchase, redemption or other acquisition by the Company or any Subsidiary of
any outstanding shares of Capital Stock or other securities of, or other
ownership interests in, the Company or any Subsidiary;
(c) any amendment of any material term of any outstanding security of
the Company or any Subsidiary;
(d) any incurrence, assumption or guarantee by the Company or any
Subsidiary of any indebtedness for borrowed money, other than (i) working lines
of credit or borrowings under existing lines of credit or floor plan financing
arrangements, (ii) any license fees and royalties and (iii) pursuant to any
lease;
(e) any creation or assumption by the Company or any Subsidiary of any
Lien on any material asset other than in the ordinary course of business
consistent with past practice;
(f) any making of any loan, advance or capital contributions to or
investment in any Person in excess of $500,000 other than loans, advances or
capital contributions to or investments in wholly-owned Subsidiaries made in the
ordinary course of business consistent with past practice;
(g) any damage, destruction or other casualty loss (whether or not
covered by insurance) affecting the business or assets of the Company or any
Subsidiary which, individually or in the aggregate, has had or would reasonably
be expected to have a Material Adverse Effect;
(h) any transaction or commitment made, or any contract or agreement
entered into, by the Company or any Subsidiary relating to its assets or
business (including the acquisition or disposition of any assets) or any
relinquishment by the Company or any Subsidiary of any contract or other right,
in any such case, material to the Company and the Subsidiaries, taken as a
whole, other than transactions and commitments in the ordinary course of
business consistent with past practice and those contemplated by this Agreement;
or
20
(i) any material change in any method of accounting or accounting
practice by the Company or any Subsidiary.
Section 5.13 Environmental Matters.
(a) The Company and its Subsidiaries have obtained all permits,
licenses and other authorizations, and have made all registrations and given all
notifications, that are required with respect to the operation of their
respective businesses under all applicable Environmental Laws other than those
permits, licenses, other authorizations, registrations and notifications the
failure of which to obtain or make, individually or in the aggregate, would not
have a Material Adverse Effect.
(b) The Company and its Subsidiaries are in compliance in all material
respects with all terms and conditions of the required permits, licenses and
other authorizations referred to in subsection (a) of this Section 5.13, and
also in compliance in all material respects with any other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in the Environmental Laws or contained in any
regulation, code, plan, order, decree, judgment, injunction, settlement
agreement, notice or demand letter issued, entered, promulgated or approved
thereunder, other than where the failure to be in such compliance, individually
or in the aggregate, would not have a Material Adverse Effect.
(c) There is no civil, criminal or administrative action, suit, demand,
claim, hearing, notice of violation, investigation, proceeding, notice or demand
letter (collectively, "Actions") pending or, to the Knowledge of the Company,
threatened against the Company or any of its Subsidiaries relating in any way to
Environmental Laws or any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or approved
thereunder other than Actions that, if determined adversely to the Company or
such Subsidiaries, would not reasonably be expected to have a Material Adverse
Effect.
Section 5.14 Material Contracts.
(a) Except as filed as an exhibit to or incorporated by reference in
the Company's annual report on Form 20-F, as amended, for the year ended
December 31, 2001, as of the date hereof, neither the Company nor any Subsidiary
is a party to or is bound by any agreement or arrangement that is required to be
filed in accordance with the terms of Item 601(b)(10) of Regulation S-K under
the Securities Act ("Material Contracts").
(b) Each Material Contract is in full force and effect and constitutes
a legal, valid and binding obligation of the Company or the Subsidiary party
thereto and, to the Knowledge of the Company, each other party thereto, and is
enforceable against the Company or its Subsidiaries and, to the Knowledge of the
Company, each other party thereto in accordance with its terms, except to the
extent that such enforceability is limited by (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity, and neither the Company nor any of its Subsidiaries, nor,
to the Knowledge of the Company, any other party thereto is in conflict
therewith or in violation or breach thereof or default thereunder, except for
21
such conflicts, violations, breaches and defaults which, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 5.15 Properties; Encumbrances.
Subject to the next succeeding sentence, each of the Company and its
Subsidiaries has good and valid title, and in the case of real property,
insurable title, to all material properties and assets which it purports to own
(real, personal and mixed, tangible and intangible, including all forms of
goodwill, rights, intellectual property and intellectual property rights)
(collectively, the "Company Assets"), including, without limitation, all the
material properties and assets reflected on the Balance Sheet (except for (i)
real and personal property sold since the date of the Balance Sheet or which was
obsolete or no longer useful in connection with the businesses of the Company
and its Subsidiaries and (ii) capital leases reflected on the Balance Sheet),
and all material properties and assets purchased by the Company and its
Subsidiaries since the date of the Balance Sheet. All Company Assets are free
and clear of all liens, mortgages, claims, interests, charges, security
interests or other encumbrances or adverse interests of any nature whatsoever
and other title or interest retention arrangements ("Liens"), except (A) as
reflected on the Balance Sheet, (B) statutory Liens of carriers, warehousemen,
mechanics, workmen and materialmen for liabilities and obligations incurred in
the ordinary course of business consistent with past practice that are not yet
delinquent or being contested in good faith, (C) such defects, irregularities,
encumbrances and other imperfections of title as normally exist with respect to
property similar in character and that, individually or in the aggregate
together with all other such exceptions, do not have a Material Adverse Effect,
(D) Liens for Taxes and (E) Liens that do not interfere with the present use of
the property subject to the Lien.
Section 5.16 Insurance.
All current primary, excess and umbrella policies of insurance owned or
held by or on behalf of or providing insurance coverage to the Company or any of
its Subsidiaries are in full force and effect. With respect to all such
insurance policies purchased by the Company or any of its Subsidiaries, no
premiums are in arrears and no notice of cancellation or termination has been
received with respect to any such policy, other than notices of cancellation or
termination routinely sent at the end of a policy term. To the Knowledge of the
Company, the insurance coverage of the Company and its Subsidiaries is
consistent with the coverage generally maintained by corporations of similar
size and engaged in similar lines of business.
Section 5.17 Employee Claims; Labor Matters.
There are no claims or actions pending or, to the Knowledge of the
Company, threatened between the Company or any of its Subsidiaries and any of
their respective employees, unions, or former employees that would be reasonably
likely to, individually or in the aggregate, have a Material Adverse Effect. The
Company and each of its Subsidiaries have no collective bargaining agreements
covering employees of the Company or any Subsidiary.
Section 5.18 Material Disclosure.
To the Knowledge of the Company, there is no fact, transaction or
development which the Company has not disclosed to the Investor in writing
(including pursuant to the SEC
22
Documents filed prior to the date hereof) which would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect. This
Agreement (including any Exhibit or Schedule hereto) and any written statements,
documents or certificates furnished to the Investor by the Company or its
Subsidiaries prior to the date hereof in connection with the transactions
contemplated hereby, taken as a whole, do not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated herein or therein or necessary to make the statements herein or therein,
in light of the circumstances under which they were made, not misleading.
Section 5.19 Intellectual Property.
The Company and its Subsidiaries own or possess adequate patent rights
or licenses or other rights to use patent rights, inventions, trademarks,
service marks, trade names and copyrights material to the general business now
operated by them and neither the Company nor any of its Subsidiaries has
received any notice of infringement or conflict with asserted rights of others
with respect to any patent, patent rights, inventions, trademarks, service
marks, trade names or copyrights which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
Section 5.20 No Undisclosed Events or Circumstances.
To the Knowledge of the Company, since March 31, 2002, no event or
circumstance has occurred or exists with respect to the Company or its
Subsidiaries or their respective businesses, properties, operations or financial
condition, which, under applicable law, rule or regulation, requires public
disclosure or announcement prior to the date hereof by the Company.
Section 5.21 No Broker.
The Company has taken no action which would give rise to any claim by
any Person for brokerage commissions, finder's fees or similar payments by the
Investor relating to this Agreement for the transactions contemplated hereby.
Section 5.22 No Violation of Covenants.
To the Knowledge of the Company, no event of default has occurred and
is continuing (or event which with the lapse of time or notice or both would
constitute such an event) which has not otherwise been waived under any
revolving credit facility, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument for money borrowed or any other material agreement
to which the Company or any of its Subsidiaries is bound, or to which any of the
property or assets of the Company or any of its Subsidiaries is subject, and in
any case, which the failure to cure or obtain a waiver with respect to such
default would have a Material Adverse Effect.
23
VI. COVENANTS OF THE COMPANY
Section 6.1 Registration Rights.
The Company shall comply in all respects with the terms of the
Registration Rights Agreement.
Section 6.2 Reservation of Common Stock.
Except as disclosed in the SEC Documents, the Company has reserved and
will continue to reserve and keep available at all times during the Commitment
Period, the number of shares of Common Stock, free of preemptive rights, set
forth below:
(a) on the Effective Date, a number of shares equal or greater than the
result of (i) $65,000,000 divided by (ii) the Purchase Price on the Effective
Date, rounded up to the nearest whole integer; and
Notwithstanding the foregoing, the number of shares so reserved from
time to time shall be adjusted proportionally to reflect stock splits,
dividends, distributions, redenominations, combinations and similar transactions
involving the Company's Common Stock.
Section 6.3 Listing of Common Stock.
During the term of this Agreement, the Company hereby agrees to
maintain the listing of the Common Stock on a Principal Market, and as soon as
reasonably practicable but in any event no later than the Effective Date to list
the shares of Common Stock issuable under this Agreement, subject to the terms
of the Registration Rights Agreement. The Company further agrees that, if the
Company applies to have the Common Stock traded on any other Principal Market,
it will include in such application the Common Stock issuable under this
Agreement, and will take such other action as is necessary or desirable to cause
the Common Stock to be listed on such other Principal Market as promptly as
possible. If the Principal Market is the Nasdaq National Market, the Company
shall maintain sufficient net tangible assets to satisfy the requirements of the
NASD for the listing of the Common Stock on the Nasdaq National Market.
Section 6.4 Exchange Act Reporting.
During the term of this Agreement, the Company will comply in all
respects with its reporting and filing obligations under the Exchange Act, and
will not take any action or file any document (whether or not permitted by the
Exchange Act or the rules thereunder) to terminate or suspend its reporting and
filing obligations under the Exchange Act. If required, the Company will take
all action to continue the listing and trading of its Common Stock on the
Principal Market and will comply in all material respects with the Company's
reporting, filing and other obligations under the bylaws or rules of the NASD
and the Principal Market.
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Section 6.5 Legends.
The Company shall instruct the applicable transfer agent to remove all
legends or stop transfer or other restrictions from the certificates
representing shares of Common Stock to be sold by the Investor pursuant to the
Registration Statement.
Section 6.6 Corporate Existence.
During the term of this Agreement, the Company will take all steps
necessary to preserve and continue the corporate existence of the Company;
provided, however, that nothing herein shall be construed to limit the ability
of the Company to partake in any merger, asset sale or acquisition transaction
involving the Company, subject to the Company complying with the terms of this
Agreement.
Section 6.7 Additional SEC Documents.
During the term of this Agreement, the Company will notify the Investor
as and when all SEC Documents are submitted to the SEC for filing.
Section 6.8 "Blackout Period".
During the term of this Agreement, the Company will immediately notify
the Investor upon the occurrence of any of the events described in Section 3(d)
of the Registration Rights Agreement. During the period in which any of the
events described therein has occurred and is continuing, the Investor shall not
be obligated to purchase any shares of Common Stock pursuant to a Company Put
Notice.
VII. OTHER ISSUANCES OF COMMON STOCK
Section 7.1 [Reserved].
Section 7.2 Other Adjustments to Purchase Price.
The daily weighted average selling price of the Common Stock for any
Trading Day used to calculate the Purchase Price shall be adjusted
proportionally to reflect any stock splits, stock dividends, reclassifications,
redenominations, combinations and similar transactions involving the Company's
Common Stock.
VIII. GOVERNING LAW AND JURISDICTION
Section 8.1 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
25
Section 8.2 Jurisdiction.
The parties hereby agree that all actions or proceedings arising
directly or indirectly from or in connection with this Agreement shall, at the
option of either party, be litigated only in the United States District Court
for the Southern District of New York located in New York County, New York,
unless such District Court declines jurisdiction, in which case such actions or
proceedings shall be litigated only in the state court located in New York
County, New York. Each party hereto irrevocably waives, to the fullest extent
permitted by applicable law, any objection which it might now or hereafter have
to the laying of venue of any proceeding in the United States District Court for
the Southern District of New York or the courts of the State of New York in New
York County, and any claim that any proceeding brought in any such court has
been brought in an inconvenient forum. The Company agrees that it shall at all
times have an authorized agent in New York County, New York, upon whom process
may be served in connection with any proceeding hereunder, and the Company has
appointed Corporation Service Company, CT Corporation System, which currently
maintains an office at 00 Xxxxx Xxxxxx, Xxxxxx, XX, 00000, as its agent for such
purposes. If for any reason such person shall cease to act as agent for the
service of process, the Company shall promptly appoint another such agent, and
shall forthwith notify the Investor of such appointment. The submission to
jurisdiction reflected in this paragraph shall not (and shall not be construed
so as to) limit the right of any person to commence proceedings in any court of
competent jurisdiction, nor shall the commencement of proceedings in any one or
more jurisdictions preclude the commencement of proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent permitted by
law. The parties hereto waive any right to a jury trial in connection with any
litigation pursuant to this Agreement.
Section 8.3 Waiver of Sovereign Immunity.
The Company irrevocably waives, to the fullest extent permitted by law,
all immunity (whether on the basis of sovereignty or otherwise) from
jurisdiction, attachment (both before and after judgment) and execution to which
it might otherwise be entitled in any action or proceeding in any court relating
in any way to this Agreement and agrees that it will not raise or claim or cause
to be pleaded any such immunity at or in respect of such action or proceeding.
IX. ASSIGNMENT, ENTIRE AGREEMENT, AMENDMENT, TERMINATION
Section 9.1 Assignment.
Neither this Agreement nor any rights of the Investor or the Company
hereunder may be assigned by either party to any other person. Notwithstanding
the foregoing, the Investor's rights and obligations under this Agreement may be
assigned at any time, in whole, to any Affiliate of the Investor (a "Permitted
Transferee"), provided, however, that any such assignment shall not release the
Investor from its obligations hereunder. The rights and obligations of the
Investor under this Agreement shall inure to the benefit of, and be enforceable
by and against, any such Permitted Transferee.
26
Section 9.2 Entire Agreement; Amendment.
This Agreement, the Registration Rights Agreement and the other
documents delivered pursuant hereto constitute the full and entire understanding
and agreement between the parties with regard to the subjects hereof and
thereof, and no party shall be liable or bound to any other party in any manner
by any warranties, representations or covenants except as specifically set forth
in this Agreement or therein. Except as expressly provided in this Agreement,
neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
Section 9.3 Publicity.
Each of the Company and the Investor agrees that it will not disclose,
and will not include in any public announcement, the name of the other without
its prior consent, unless and until such disclosure is required by law or
applicable regulation, and then only to the extent of such requirement. Except
as may be required by law, each of the Company and the Investor shall not issue
any press release or make any public statement with respect to this Agreement
prior to consultation with the other party.
Section 9.4 Termination.
(a) The Investor may terminate this Agreement as a result of (i) a
breach by the Company of any material representation, warranty, covenant or
other obligation in this Agreement or the Registration Rights Agreement or (ii)
if the Investor reasonably determines, in its sole discretion, at any time that
the adoption of, or change in, or any change in the interpretation or
application of, any law, regulation, rule, guideline or treaty (including, but
not limited to, changes of capital adequacy) makes it illegal or materially
impractical for the Investor to fulfill its commitment pursuant to this
Agreement, but in the case of either (i) or (ii) above, the Investor may
terminate this Agreement only after a 60-day period in which the parties
negotiate in good faith, in the case of (i), a reasonable substitute for such
provision or, in the case of (ii), a reasonable alternative manner not illegal
or impossible for the Investor to fulfill its commitment pursuant to this
Agreement.
X. NOTICES, COSTS AND EXPENSES, RIGHT OF FIRST REFUSAL,
INDEMNIFICATION
Section 10.1 Notices.
All notices, demands, requests, consents, approvals or other
communications required or permitted to be given hereunder or which are given
with respect to this Agreement shall be in writing and shall be personally
served or deposited in the mail, registered or certified, return receipt
requested, postage prepaid, or delivered by reputable air courier service with
charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile,
addressed as set forth below, or to such other address as such party shall have
specified most recently by written notice:
If to the Company, to: ASM International N.V.
00
Xxx Xxx Xxxxxxxx 00
0000 Xxxxxxxxx
The Netherlands
Attn: Rinse de Jong
Tel: (00) 00-000-0000
Fax: (00) 00-000-0000
With a copy (which shall
not constitute notice) to: Xxxxxxx & Xxxxx Xxxxxxx Xxxx LLP
One Xxxxxxxxxxx Xxxxxx
Xxx X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Investor, to: Canadian Imperial Holdings Inc.
c/o CIBC World Markets Corp.
000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxx or Xxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall
not constitute notice) to: Xxxxx, Xxxxx & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Subject to Section 2.3(b), notice shall be deemed given on the date of
service or transmission if personally served or transmitted by telegram, telex
or facsimile during normal business hours of the recipient. Notice otherwise
sent as provided herein shall be deemed given on the third (3rd) business day
following the date mailed or on the second business day following the date of
deposit for delivery of such notice with a reputable air courier service.
Section 10.2 [Reserved.]
Section 10.3 [Reserved.]
Section 10.4 Indemnification.
(a) Indemnification of Investor. The Company agrees to indemnify and
hold harmless the Investor and each person, if any, who controls the Investor
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act as follows:
28
(i) against any and all loss, liability, claim, damage and
reasonable expense whatsoever, as incurred, arising out of any untrue statement
of a material fact contained in the Registration Statement (or any amendment
thereto) or the Prospectus, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statement
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
reasonable expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding
by any governmental agency or body, based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided that
(subject to Section 10.4(d) below) any such settlement is effected with the
written consent of the Company; and
(iii) against any and all reasonable expenses whatsoever, as
incurred (including the fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened in writing, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above; provided,
however, that the indemnity obligation of the Company shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Investor expressly for use in the Registration
Statement (or any amendment thereto), including the Prospectus (or any amendment
or supplement thereto).
(b) Indemnification of Company. The Investor agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense described in
the indemnity contained in clause (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Prospectus (or any amendment or supplement thereto), in reliance
upon and in conformity with information furnished to the Company by or on behalf
of the Investor expressly for use in the Registration Statement (or any
amendment or supplement thereto) or the Prospectus.
(c) Action against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder, in any case, to the extent it
is not prejudiced as a result thereof and in any event shall not relieve it from
any liability which it may have otherwise than on account of this indemnity
agreement. In case any such action is brought against any indemnified party, and
it notifies an indemnifying party of
29
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party reasonably promptly after receiving the aforesaid notice from
such indemnified party, to assume the defense thereof. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
own counsel in any such case but the reasonable fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless (i)
the employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such action at the expense
of the indemnifying party, (ii) the indemnifying party shall not have employed
counsel to have charge of the defense of such action within a reasonable time
after notice of commencement of the action, or (iii) such indemnified party or
parties shall have reasonably concluded that there are fundamental defenses
available to it or them which are inconsistent with those available to one or
all of the indemnifying parties (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of the
indemnified parties), in any of which events such reasonable fees and expenses
of one additional counsel shall be borne by the indemnifying party. In no event
shall the indemnifying party be liable for fees and expenses of more than one
counsel (in addition to one local counsel) separate from its own counsel for the
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 10.4 or Section 10.5 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
such nonconsenting indemnified party from all liability arising out of such
litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any such nonconsenting indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for the fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 10.4(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
Section 10.5 Contribution.
If the indemnification provided for in Section 10.4 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses to the extent
provided for herein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred (a) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Investor on the other hand
30
from the offering of the Common Stock pursuant to this Agreement or (b) if the
allocation provided by clause (a) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (a) above but also the relative fault of the Company on the one
hand and of the Investor on the other hand and in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Investor on the other hand in connection with the offering of the Common Stock
pursuant to this Agreement shall be deemed to be in the same respective portions
as the total proceeds from the offering of the Common Stock pursuant to this
Agreement received by the Company from the Investor, on the one hand, and the
total profits received by the Investor upon the sale of such Common Stock
issuable hereunder, on the other hand bear to the aggregate public offering
price of the Common Stock.
The relative fault of the Company on the one hand and the Investor on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Investor and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Investor agree that it would not be just and
equitable if contribution pursuant to this Section 10.5 were determined on a
pro-rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 10.5.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 10.5
shall be deemed to include any reasonable legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 10.5, the Investor shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Common Stock purchased by it and resold to the public
exceeds the amount of any damages which the Investor has otherwise been required
to pay by reason of any such untrue or alleged untrue statement or omission or
alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 10.5, each person, if any, who controls
the Investor within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Investor, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
31
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company.
Section 10.6 General Indemnification.
Each party shall indemnify the other against any material loss, cost or
damages (including reasonable attorney's fees and expenses) incurred as a result
of such party's breach of any representation, warranty, covenant or agreement in
this Agreement.
Section 10.7 Indemnification of Accountant.
The Investor hereby agrees to hold harmless the Company's independent
auditors from any liability that may arise out of the delivery of an "agreed
upon procedures" letter pursuant to Section 3.3(b)(ii) hereof.
XI. MISCELLANEOUS
Section 11.1 Counterparts.
This Agreement may be executed in any number of counterparts, all of
which together shall constitute one instrument.
Section 11.2 Survival; Severability.
The representations, warranties, covenants and agreements of the
parties hereto shall survive each Closing hereunder. The indemnity and
contribution agreements contained in Sections 10.4 and 10.5 hereof shall survive
and remain operative and in full force and effect regardless of (i) any
termination of this Agreement or of the Commitment Period, (ii) any
investigation made by or on behalf of any indemnified party or by or on behalf
of the Company, and (iii) the consummation of the sale or successive resales of
the Common Stock. In the event that any provision of this Agreement becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision; provided that such severability shall be ineffective if it materially
changes the economic benefit of this Agreement to any party.
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Section 11.3 Title and Subtitles.
The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this
Agreement.
Section 11.4 Effectiveness of the Agreement.
This Agreement shall be effective as of the Effective Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof.
ASM INTERNATIONAL N.V. CANADIAN IMPERIAL HOLDINGS INC.
By: /s/ A.H. del Xxxxx By: /s/ Xxxx Xxxxx
--------------------------------- --------------------------
Name: A.H. del Xxxxx Name: Xxxx Xxxxx
Title: Chief Executive Officer Title: Managing Director
33
EXHIBIT A
[LETTERHEAD OF U.S. COUNSEL TO THE COMPANY]
[Date]
Canadian Imperial Holdings Inc.
C/o CIBC World Markets Corp.
000 Xxxxxxxxx Xxx.
Xxx Xxxx, XX 00000
Re: ASM International N.V.
Ladies and Gentlemen:
We have acted as U.S. counsel for ASM International N.V., a company
organized under the laws of the Kingdom of the Netherlands (the "Company"), in
connection with the preparation and filing with the U.S. Securities and Exchange
Commission (the "SEC") of a Registration Statement on Form F-3 (as amended from
time to time, the "Registration Statement"), relating to the issuance from time
to time of up to [ ] shares of the Company's common stock, par value E.04 per
share (the "Common Stock"), to you pursuant to the terms of the Equity Line
Financing Agreement (the "Financing Agreement") and the Registration Rights
Agreement (the "Rights Agreement"), each dated as of _________, 2002, between
you and the Company. This opinion is being delivered to you pursuant to Section
3.2(h)[(i)-(ii)](1) of the Financing Agreement. Capitalized terms used but not
defined herein have the meanings assigned to such terms in the Financing
Agreement.
In rendering the opinions expressed below, we examined originals, or
copies certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate, including the Financing Agreement, the Rights Agreement and the
Registration Statement.
Based on the foregoing, we are of the opinion that:
1. The Registration Statement has been declared effective by the SEC,
and, as of the date hereof, no stop order or restraining order has been issued
in connection with the Registration Statement, no withdrawal or suspension of
the effectiveness of the Registration Statement has occurred and is continuing,
and, to our knowledge, no investigation, proceeding or litigation has been
commenced or threatened before the SEC or any other agency of the United States
with respect to the making or consummation of the transactions contemplated by
the Registration Statement, the Financing Agreement and the Registration Rights
Agreement.
2. [The Common Stock, when issued and delivered in accordance with the
terms of the Financing Agreement, will be duly authorized, validly issued, fully
paid and non-assessable.](2)
3. [The Common Stock subject to the Company Put Notice, dated
_________, a copy of which is attached hereto, when issued and delivered in
accordance with the terms of the Financing Agreement, will be duly authorized,
validly issued, fully paid and non-assessable.](3)
We have acted as U.S. counsel to the Company in connection with the
execution and delivery of the Financing Agreement and the Rights Agreement and
the preparation and filing of the Registration Statement. In the course of this,
we have participated in certain teleconferences with representatives of the
Company and you in which conferences the contents of the Registration Statement
and the related prospectus were discussed. Although we have not independently
checked the accuracy or completeness of, or otherwise verified any statement of
fact contained in, the Registration Statement (including the Prospectus and any
document incorporated by reference therein, in the course of foregoing
representation no facts have come to the attention of the attorneys in our firm
who participated in such representation which have caused us to believe that the
Registration Statement (including the Prospectus and any document incorporated
by reference therein, but excluding any financial statements contained or
incorporated by reference therein) contains any untrue statement of material
fact or omits a material fact required to make the statements contained therein,
in light of the circumstances under which they were made, not misleading.
[To the extent the law of the Kingdom of the Netherlands may be
relevant to the opinions expressed in paragraph [2 or 3], we have, without
having made any independent investigation with respect thereto, relied upon and
assumed the correctness of the opinion of [name of Netherlands counsel], a copy
of which is attached hereto].(4)
At the request of the Company, this opinion is being delivered to you
pursuant to Section 3.2(h)[(i)-(ii)](5) of the Financing Agreement and may not
be relied upon by any Person for any purpose other than in connection with the
transactions contemplated by the Registration Statement, the Financing Agreement
and the Registration Rights Agreement without, in each instance, our prior
written consent.
Very truly yours,
----------------------------------
(1) Select applicable provision.
(2) Include if opinion is being delivered as a result of any of the
events set forth in Section 3.2(h)(i)-(iv) of the Financing Agreement.
(3) Include if opinion is being delivered pursuant to a Company Put
Notice under Section 3.2(h)(v) of the Financing Agreement.
(4) Include if necessary to provide the opinions in paragraphs 2 or 3.
(5) Select applicable provision.
Accountants
Xxxxxxxxx 00
0000 XX Xxxxxxxxx
X.X. Xxx 00000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telephone x00 (00) 0000000
Telefax x00 (00) 0000000
EXHIBIT B
Canadian Imperial Holdings Inc
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXX
Date From Our reference
Subject Your reference
Dear Sirs:
We have audited the consolidated balance sheets of ASM International N.V. (the
Company) and its subsidiaries as of December 31, _____ and _____, and the
consolidated statements of operations, comprehensive income, shareholders'
equity, and cash flows for each of the three years in the period ended December
31, ______, and the related financial statement schedules all included in Form
20-F filed by the Company under the Securities Act of 1934 and incorporated by
reference into the registration statement no. 333-___________ on Form F-3 filed
by the Company under the Securities Act of 1933, (the "Act"); our reports with
respect thereto are included in that registration statement.
We have not audited any financial statements of the Company as of any date or
for any period subsequent to December 31, ______; although we have conducted an
audit for the year ended December 31, ______, the purpose (and therefore the
scope) of the audit was to enable us to express our opinion on the consolidated
financial statements as of December 31, _____, and for the year then ended, but
not on the financial statements for any interim period within that year.
Therefore, we are unable to express and do not express any opinion on the
unaudited consolidated balance sheet as of [interim date(s)], and the unaudited
consolidated statements of operations, comprehensive income, shareholders'
equity, and cash flows for the [interim period(s)] then ended, all included on
Form 6-K dated _____________ incorporated by reference into the registration
statement, or on the financial position, results of operations, or cash flows as
of any date or for any period subsequent to December 31, _______.
With respect to the [interim period] ended _________________, we have:
1. Read the unaudited consolidated balance sheet as of ________________ and
unaudited consolidated statements of operations, comprehensive income,
shareholders' equity, and cash flows for the [interim period] then ended,
all included on Form 6-K dated
All agreements with Deloitte & Touche are governed by the General Terms
and Conditions of Deloitte & Touche, registered with the District Court
of Rotterdam under deed number 115/97.
Deloitte & Touche Accountants is a Partnership of private
(professional) companies.
May 10, 2001
2
AS01-100/ah
__________________ incorporated by reference into the registration
statement, and compared the amounts contained therein with the Company's
unaudited consolidation schedules as of ________________, and for the
[interim period] then ended and found them to be in agreement.
2. Inquired of certain officials of the Company who have responsibility for
financial and accounting matters whether the unaudited consolidated
financial statements referred to in (1): (i) are in conformity with
accounting principles generally accepted in the United States of America
applied on a basis substantially consistent with that of the audited
consolidated financial statements included in the registration statement,
and (ii) comply as to form in all material respects with the applicable
accounting requirements of the Act and the related rules and regulations
adopted by the SEC. Those officials stated that the unaudited condensed
consolidated financial statements (i) are in conformity with accounting
principles generally accepted in the United States of America applied on a
basis substantially consistent with that of the audited financial
statements, and (ii) comply as to form in all material respects with the
applicable accounting requirements of the Act and the related rules and
regulations adopted by the SEC.
3. Read the minutes of meetings of the board of directors of the Company for
the [interim period] ended _________________, officials of the Company
having advised us that the minutes of all such meetings through that date
were provided to us.
The foregoing procedures do not constitute an audit or a review conducted in
accordance with auditing standards generally accepted in the United States of
America. We make no representations regarding the sufficiency of the foregoing
procedures for your purposes. Had we performed additional procedures or had we
conducted an audit or a review, other matters might have come to our attention
that would have been reported to you.
This letter is solely for the information of the addressees and it is not to be
used, circulated, quoted, or otherwise referred to without our prior written
consent.
