OPTION, VOTING AND INDEMNIFICATION AGREEMENT
This Option, Voting and Indemnification Agreement ("Agreement") is made
as of May 26, 1999, by and among ACX Technologies, Inc., a Colorado corporation
("ACX"), Golden Technologies Company, Inc., a Colorado corporation
("Stockholder," and together with ACX, collectively referred to as the "Selling
Parties," and individually, a "Selling Party") and Kyocera International, Inc.,
a California corporation ("Parent"). All terms not otherwise defined in this
Agreement shall have the meanings ascribed to them in the Merger Agreement (as
that term is defined below).
RECITALS
Kyocera, GGC Acquisition Company, a Delaware corporation ("Merger Sub")
and Golden Genesis Company, a Delaware corporation (the "Company") have entered
into an Agreement and Plan of Merger (as amended from time to time, the "Merger
Agreement"), of even date herewith, pursuant to which Merger Sub, a wholly-owned
subsidiary of Parent, will be merged with and into the Company (the "Merger").
The Board of Directors of the Company has adopted resolutions approving the
Merger pursuant to the Merger Agreement and this Agreement for purposes of
making inapplicable the restrictions on "business combinations" imposed by
Section 203 of the Delaware General Corporation Law.
In order to induce Parent to enter into the Merger Agreement, the
Selling Parties have agreed to take certain actions and to refrain from taking
other actions in connection with the Merger.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. CERTAIN DEFINITIONS.
For purposes of this Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock, par value $.10 per
share, of the Company.
(b) An "EXERCISE EVENT" shall be deemed to have occurred if Parent shall
have the right to terminate the Merger Agreement pursuant to Section 10.2(d) or
10.2(e) of the Merger Agreement.
(c) "EXPIRATION DATE" shall mean the earlier of (i) the date upon which the
Merger becomes effective (the "Effective Date"), (ii) the date upon which the
Option Closing occurs, (iii) the date upon which the Merger Agreement is validly
terminated pursuant to Section 10.1(a) or 10.1(c) of the Merger Agreement, and
(iv) January 31, 2000 (the "Expiration Date").
(d) Each Selling Party shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if it: (i) is the record owner of such security; or
(ii) is the "beneficial owner" (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934) of such security.
(e) "PERSON" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership, trust or other entity, or (iii) governmental
authority.
(f) "RESTRICTED PERIOD" shall mean the period from the date of this
Agreement through the Expiration Date.
(g) "SUBJECT SECURITIES" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) Owned by the Selling
Parties as of the date of this Agreement; and (ii) all additional securities of
the Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares of Company
Common Stock) of which each Selling Party acquires Ownership during the
Restricted Period.
(h) A Person shall be deemed to have effected a "TRANSFER" of a security if
such Person directly or indirectly: (i) sells, pledges, encumbers, grants an
option with respect to, transfers, distributes or disposes of such security or
any interest in such security; or (ii) enters into an agreement or commitment
contemplating the possible sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
SECTION 2. TRANSFER OF SUBJECT SECURITIES.
2.1 NO TRANSFER OF SUBJECT SECURITIES. During the Restricted Period,
neither Selling Party shall cause or permit any Transfer of any of the Subject
Securities to be effected. Any Transfer in violation of this Section 2.1 shall
be null and void ab initio. -- ------
2.2 NO TRANSFER OF VOTING RIGHTS. Each Selling Party shall ensure that,
during the Restricted Period: (a) none of the Subject Securities is deposited
into a voting trust; and (b) no proxy is granted other than to Parent pursuant
to this Agreement, and no voting agreement or similar agreement is entered into,
with respect to any of the Subject Securities.
SECTION 3. VOTING OF SHARES.
3.1 VOTING AGREEMENT. Each Selling Party agrees that, during the Restricted
Period:
(a) at any meeting of stockholders of the Company, however called, and
at every adjournment or postponement thereof, it shall (unless otherwise
directed in writing by Parent) cause all outstanding shares of Company Common
Stock (and any other Subject Securities having voting rights) that are Owned by
such Selling Party as of the record date fixed for such meeting to be voted (i)
FOR the approval and adoption of the Merger Agreement and the approval of the
Merger, and FOR each of the other actions contemplated by the Merger Agreement,
and (ii) AGAINST any action or agreement that would result in a breach in any
material respect of any representation, warranty or covenant of the Company in
the Merger Agreement, and AGAINST any action or agreement that would impede,
interfere with, delay, postpone, attempt to discourage the Merger or otherwise
materially adversely affect the Merger, including, without limitation, any
action or agreement with respect to an Acquisition Transaction with any Person
(other than Parent or Merger Sub); and
(b) in the event written consents are solicited or otherwise sought
from stockholders of the Company with respect to the approval or adoption of the
Merger Agreement, with respect to the approval of the Merger or with respect to
any of the other actions contemplated by the Merger Agreement, it shall (unless
otherwise directed in writing by Parent) cause to be validly executed, with
respect to all outstanding shares of Company Common Stock (and any other Subject
Securities having voting rights) that are Owned by such Selling Party as of the
record date fixed for the consent to the proposed action, a written consent or
written consents (i) FOR the approval and adoption of the Merger Agreement and
the approval of the Merger, and FOR each of the other actions contemplated by
the Merger Agreement, and (ii) AGAINST any action or agreement that would result
in a breach in any material respect of any representation, warranty or covenant
of the Company in the Merger Agreement, and AGAINST any action or agreement that
would impede, interfere with, delay, postpone, attempt to discourage the Merger
or otherwise materially adversely affect the Merger, including, without
limitation, any action or agreement with respect to an Acquisition Transaction
with any Person (other than Parent or Merger Sub).
3.2 PROXY; ADDITIONAL PURCHASES; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Agreement: (i) each
Selling Party shall deliver to Parent a proxy in the form attached to this
Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (individually,
a "Proxy," and collectively, the "Proxies"); and (ii) each Selling Party shall
cause to be delivered to Parent an additional proxy (in the form attached hereto
as Exhibit A) executed on behalf of the record owner of any outstanding shares
of Company Common Stock that are owned beneficially (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934), but not of record, by such
Selling Party.
(b) Each Selling Party shall, at its own expense, perform such further acts
and execute such further documents and instruments as may reasonably be required
to vest in Parent the power to carry out and give effect to the provisions of
this Agreement.
SECTION 4. THE OPTION
4.1 Each Selling Party hereby grants to Parent an unconditional,
irrevocable option (the "Option") to purchase on one occasion, subject to the
terms hereof, all of the Subject Securities Owned by such Selling Party (other
than the 500,000 shares of Company Common Stock Owned by Xxxxxx Xxxxxxxx with
respect to which ACX has voting power) at any time on or prior to the Expiration
Date if after the date of this Agreement an Exercise Event occurs. Following the
occurrence of an Exercise Event, Parent may purchase: (i) all (but not less than
all) Subject Securities consisting of Company Common Stock at a purchase price
of $2.33 per share (as adjusted pursuant to Section 4.2 below, the "Standard
Option Price"), and (ii) all or any part of any other Subject Securities at a
purchase price equal to that paid by such Selling Party for such Subject
Securities (the "Other Option Price"). If Parent wishes to exercise the Option,
it shall send to the Selling Parties a written notice (the date of which is
referred to herein as the "Notice Date") on or prior to the Expiration Date
specifying (i) which Subject Securities not consisting of Company Common Stock
Parent will purchase, if any, and (ii) a place and date not later than the later
of (A) five (5) business days from the Notice Date and (B) notwithstanding the
Expiration Deadline (but in any event not later than March 15, 2000), two (2)
business days following the expiration or earlier termination of any applicable
waiting period under the Xxxx-Xxxx Xxxxxx Antitrust Improvements Act of 1976, as
amended, for the closing of such purchase (the "Option Closing"). At the Option
Closing, Parent shall pay to each Selling Party the aggregate purchase price for
the Subject Securities sold by such Selling Party in immediately available funds
by a wire transfer to a bank account designated by such Selling Party; provided
that failure or refusal of such Selling Party to designate such a bank account
shall not preclude Parent from exercising the Option. At the Option Closing,
simultaneously with the payment of the aggregate Standard Option Price and the
Other Option Price, if applicable, by Parent, each Selling Party shall deliver
to Parent a certificate or certificates representing the Subject Securities
accompanied by duly executed stock powers. If prior notification to or approval
of any governmental authority is required (or if any waiting period must expire
or be terminated) in connection with the exercise of the Option, the Selling
Parties shall promptly cause to be filed, if applicable, the required notice or
application for approval and shall expeditiously process the same (and the
Selling Parties shall cooperate with Parent in the filing of any such notice or
application required to be filed by Parent and the obtaining of any such
approval required to be obtained by Parent), and notwithstanding anything to the
contrary set forth in this Agreement, the Expiration Deadline may be extended by
Parent to a date not more than three (3) business days after the date on which
any required notification has been made, approval has been obtained or waiting
period has expired or been terminated; provided, however, that in no event may
the Expiration Deadline be extended beyond March 15, 2000.
4.2 If at any time the Company shall (i) pay a dividend (other than regular
cash dividends) or otherwise make a distribution to the holders of Company
Common Stock, (ii) subdivide its outstanding shares of Common Stock into a
larger number of shares of Common Stock or combine its outstanding shares of
Company Common Stock into a smaller number of shares of Company Common Stock,
(iii) reorganize its capital, reclassify its capital stock, consolidate or merge
with or into another entity or sell, transfer or otherwise dispose of all or
substantially all of its property, assets or business to another entity or (iv)
engage in any similar dilutive transaction, the parties agree to adjust the
Standard Option Price and/or the number of shares of Company Common Stock (or
Company Common Stock obtainable upon conversion of other Subject Securities, if
applicable) subject to the Option as necessary and equitable in order to ensure
that Parent shall receive, upon exercise of the Option, the number of shares of
Company Common Stock (or Company Common Stock obtainable upon conversion of
other Subject Securities, if applicable) which Parent would have received in
connection with or as a result of such dividend, distribution or other
transaction, if it had exercised the Option immediately prior to (i) the record
date for any such dividend or other distribution or (ii) the effective time of
any such other transaction.
4.3 Until exercise of the Option, all rights, ownership and economic
benefits of and relating to the Subject Securities shall remain vested in and
belong to the Selling Parties, and Parent shall have no authority to manage,
direct, superintend, restrict, regulate, govern, or administer any of the
policies or operations of the Company or exercise any power or authority to
direct either Selling Party in the voting of any of the Subject Securities,
except as otherwise provided herein and in the Proxies, or the performance of
either Selling Party's duties or responsibilities as a stockholder of the
Company.
SECTION 5. WAIVER OF APPRAISAL RIGHTS.
Each Selling Party hereby irrevocably and unconditionally waives, and
agrees to cause to be waived and to prevent the exercise of, any rights of
appraisal, any dissenters' rights and any similar rights relating to the Merger
or any related transaction that such Selling Party or any other Person may have
by virtue of the ownership of any Subject Securities.
SECTION 6. NO SOLICITATION.
6.1 During the Restricted Period, each Selling Party shall, and shall
direct its officers, directors, employees, representatives and agents
(including, without limitation, its attorneys, investment bankers and
accountants) to, refrain from any discussions and negotiations with any parties
other than Parent and Merger Sub with respect to any proposal relating to an
Acquisition Transaction, and agrees that it shall not, and shall not authorize
or permit any of its directors, officers, employees, agents or representatives
(including, without limitation, its attorneys, investment bankers and
accountants), directly or indirectly, to solicit, initiate or encourage
(including by way of furnishing or disclosing non-public information) any
inquiries or the making of any proposal with respect to an Acquisition
Transaction or initiate, negotiate, explore or otherwise engage in substantive
communications in any way with any Person (other than Merger Sub, Parent and
their directors, officers, employees, agents and representatives) with respect
to any Acquisition Transaction. Without limiting the generality of the
foregoing, each Selling Party agrees that during the Restricted Period, it shall
not, and shall not authorize or permit any of its directors, officers,
employees, agents or representatives (including, without limitation, its
attorneys, investment bankers and accountants) to request that the Company waive
its right of first refusal, under the Stock Purchase Agreement, dated November
15, 1996, among Stockholder, New World Power Corporation and the Company, to
purchase all shares of Company Common Stock that Stockholder and its
subsidiaries may from time to time propose to sell.
6.2 ACX agrees that if either J. Xxxxxxx Xxxxx or Xxxxxxx X. Xxxxxx (each,
a "Company Employee") becomes an employee of ACX or any of its affiliates, ACX
shall, for a period 18 months after such employment commences, not permit such
Company Employee to do either of the following for the benefit of ACX or such
affiliate, as the case may be: (a) cause or attempt to cause any employee, agent
or contractor of the Company, to terminate his or her employment, agency or
contractor relationship with the Company; interfere or attempt to interfere with
the relationship between the Company and any employee, contractor or agent of
the Company; hire or attempt to hire any employee, agent or contractor of the
Company; or conduct business of any kind with any Company contractor; or (b)
solicit business from or conduct business with any customer or client served by
the Company while he was an employee of the Company; or interfere or attempt to
interfere with any transaction, agreement or business relationship in which the
Company or any affiliate was involved while he was an employee of the Company.
SECTION 7. ASSIGNMENT OF SOLAR ELECTRIC ASSETS.
Contemporaneously with the execution of this Agreement, the Selling
Parties and Golden International, Inc., a Colorado corporation (or any
successor-in-interest to Golden International, Inc., "Photon Subsidiary") shall
execute and deliver to Parent, an Assignment and Xxxx of Sale in the form of
Exhibit B hereto (the "Assignment"), assigning, as of the Effective Time, to the
Company, all of their right, title and interest in and to the following
(collectively, the "Solar Electric Assets"): all Intellectual Property owned by
them (whether or not developed by them) for use in (a) solar electric
applications and (b) the manufacture of CdTe thin film modules (or otherwise
relating thereto) other than any such Intellectual Property in which PE Limited
Liability Company has an interest. The Solar Electric Assets shall be assigned
to the Company on an as-is, where-is basis, without any representation or
warranty except as set forth in Section 9.
SECTION 8. REPAYMENT OF CERTAIN COMPANY INDEBTEDNESS.
Parent agrees that if the indebtedness of the Company owing to the
Selling Parties listed on Schedule 1 hereto (the "Intercompany Indebtedness") is
not paid in full as of the Effective Time, Parent shall cause the Intercompany
Indebtedness to be paid in full immediately after the Effective Time but no
later than twenty-four (24) hours thereafter. Additionally, to the extent
Stockholder and/or ACX, as the case may be, attempt to obtain releases from the
guaranties of obligations of the Company listed on Exhibit D hereto (the
"Guaranties"), Parent shall offer to be substituted as guarantor under the
Guaranties, in the place and stead of Stockholder or ACX, as the case may be,
and shall use best commercial efforts to effect such substitution.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF EACH SELLING PARTY.
Each Selling Party hereby represents and warrants to Parent as to
itself (and as to Photon Subsidiary) as follows:
9.1 AUTHORIZATION, ETC. It has the absolute and unrestricted right, power,
authority and capacity to execute and deliver this Agreement, the Assignment and
its Proxy and to perform its obligations hereunder and thereunder. The execution
and delivery of this Agreement, the Assignment and its Proxy have been duly and
validly authorized and approved by its Board of Directors and its stockholders
to the extent required by applicable law and its Certificate or Articles of
Incorporation, bylaws or other charter documents and no other corporate
proceedings are necessary to authorize this Agreement, the Assignment or its
Proxy. This Agreement, the Assignment and its Proxy have been duly and validly
executed and delivered by it and constitute its legal, valid and binding
obligations, enforceable against it in accordance with their terms, subject to
(i) laws of general application relating to bankruptcy, insolvency and the
relief of debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies. Photon Subsidiary has the
absolute and unrestricted right, power, authority and capacity to execute and
deliver the Assignment and to perform its obligations thereunder. The execution
and delivery of the Assignment has been duly and validly authorized and approved
by Photon Subsidiary's Board of Directors and its stockholders to the extent
required by applicable law. The Assignment has been duly and validly executed
and delivered by Photon Subsidiary and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
9.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Agreement, the Assignment and
its Proxy by it do not, and the performance of this Agreement, the Assignment
and its Proxy by it will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to it or by which it or its
properties is or may be bound or affected; or (ii) result in or constitute (with
or without notice or lapse of time) any breach of or default under, or give to
any other Person (with or without notice or lapse of time) any right of
termination, amendment, acceleration or cancellation of, or result (with or
without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Subject Securities or the Solar Electric Assets
pursuant to, any contract to which it is a party or by which it or any of its
affiliates or properties is or may be bound or affected, except in the case of
clause (i) or (ii) above where any of such events would not have a material
adverse effect on it or otherwise impair its ability to satisfy its obligations
hereunder.
(b) The execution and delivery of the Assignment by Photon Subsidiary
do not, and the performance of the Assignment by it will not: (i) conflict with
or violate any law, rule, regulation, order, decree or judgment applicable to it
or by which it or its properties is or may be bound or affected; or (ii) result
in or constitute (with or without notice or lapse of time) any breach of or
default under, or give to any other Person (with or without notice or lapse of
time) any right of termination, amendment, acceleration or cancellation of, or
result (with or without notice or lapse of time) in the creation of any
encumbrance or restriction on any of the Solar Electric Assets pursuant to, any
contract to which it is a party or by which it or any of its affiliates or
properties is or may be bound or affected, except in the case of clause (i) or
(ii) above where any of such events would not have a material adverse effect on
it or otherwise impair its ability to satisfy its obligations hereunder.
(c) The execution and delivery of this Agreement, the Assignment and its
Proxy by it do not, and the performance of this Agreement, the Assignment and
its Proxy by it will not, require any consent or approval of any Person.
(d) The execution and delivery of the Assignment by Photon Subsidiary will
not when executed, and the performance of the Assignment by it will not, require
any consent or approval of any Person.
9.3 TITLE TO SECURITIES. As of the date of this Agreement: (a) Stockholder
holds of record 8,399,327 shares of Company Common Stock, free and clear of all
liens, pledges, claims, charges, security interests, options, rights of first
refusal, agreements, limitations on the Stockholder's voting rights, or other
encumbrances of any kind and Stockholder is not the "beneficial owner" (as such
term is used in Section 1(d)) of any additional shares of Company Common Stock;
(b) ACX holds of record 530,052 shares of Company Common Stock and is the
"beneficial owner" (as such term is used in Section 1(d)) of an additional
500,000 shares of Company Common Stock, free and clear of all liens, pledges,
claims, charges, security interests, options, rights of first refusal,
agreements, limitations on ACX's voting rights, or other encumbrances of any
kind; (c) neither Selling Party owns any options, warrants or other rights to
acquire shares of Company Common Stock (by purchase, conversion or otherwise);
and (d) neither Selling Party directly or indirectly Owns any shares of capital
stock or other securities of the Company other than the those specified in this
Section 9.3.
9.4 TITLE TO SOLAR ELECTRIC ASSETS. Each Selling Party and Photon
Subsidiary will have good and marketable title to those Solar Electric Assets
which it is assigning to the Company pursuant to the Assignment when those Solar
Electric Assets are assigned, free and clear of all liens, other than Permitted
Liens, and it has not granted any license or distribution rights with respect to
any of its Solar Electric Assets to any third-party which will be in existence
at the time of the assignment of such Solar Electric Assets.
9.5 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Agreement are accurate in all material respects as of the date
of this Agreement, will be accurate in all material respects at all times
through the Expiration Date and will be accurate in all material respects as of
the date of the consummation of the Merger as if made on that date.
SECTION 10. INDEMNIFICATION AND RELEASE.
10.1 Subject to the limitations set forth in Sections 10.4 and 10.5 below,
ACX shall, from and after the Effective Time, indemnify, defend and hold
harmless (a) the Company, (b) each of the Company's stockholders, directors,
officers, employees, agents, attorneys and representatives, and (c) solely as to
clause (iv) below, the persons currently serving as trustees of the Company's
401(k) Plan, from and against any and all Losses (as hereinafter defined) which
may be incurred or suffered by any such party and which may arise out of or
result from (i) any breach of any representation or warranty contained in this
Agreement, or the failure of any of the Selling Parties or Photon Subsidiary to
observe, perform or abide by, or any other breach of, any restriction, covenant,
obligation or other provision contained this Agreement, the Assignment or in the
Proxies, (ii) any breach by the Company of any representation or warranty
contained in the Merger Agreement or in any other Company Document solely to the
extent any such representation or warranty applies to either Solartec Sociedad
Anonima, a corporation organized under the laws of the Republic of Argentina and
a wholly owned subsidiary of the Company (the "Argentinean Sub") or Golden
Genesis do Brasil Energia Renovavel, Ltda., a corporation organized under the
laws of the Federative Republic of Brazil and a wholly owned subsidiary of the
Company (the "Brazilian Sub"), (iii) any breach by the Selling Parties of any
representation or warranty contained in that certain Share Purchase Agreement,
dated as of September 4, 1998, among the Selling Parties and the Company (the
"1998 Share Purchase Agreement"), or (iv) the failure of the Company's 401(k)
Plan to satisfy the qualification requirements of Sections 401(a) and 501(a) of
the Internal Revenue Code of 1986, as amended, and any remedial action required
to satisfy such requirements (whether or not initiated by the Internal Revenue
Service or the Company). As used herein, "Losses" shall mean all damages,
awards, judgments, assessments, fines, sanctions, penalties, charges, costs,
expenses, payments, diminutions in value and other losses, however suffered or
characterized, all interest thereon, all costs and expenses of investigating any
claim, lawsuit or arbitration and any appeal therefrom, all actual attorneys',
accountants' investment bankers' and expert witness' fees incurred in connection
therewith, whether or not such claim, lawsuit or arbitration is ultimately
defeated and, subject to the other provisions of this Section 10, all amounts
paid incident to any compromise or settlement of any such claim, lawsuit or
arbitration.
10.2 If any party (the "Indemnified Party") receives notice of any claim or
other commencement of any action or proceeding with respect to which ACX is
obligated to provide indemnification pursuant to Section 10.1, the Indemnified
Party shall promptly give the ACX written notice thereof, which notice shall
specify in reasonable detail, if known, the amount or an estimate of the amount
of the liability arising therefrom and the basis of the claim. Such notice shall
be a condition precedent to any liability of the ACX for indemnification
hereunder, but the failure of the Indemnified Party to give prompt notice of a
claim shall not adversely affect the Indemnified Party's right to
indemnification hereunder unless the defense of that claim is materially
prejudiced by such failure. The Indemnified Party shall not settle or compromise
any claim by a third party for which it is entitled to indemnification hereunder
without the prior written consent of the ACX (which shall not be unreasonably
withheld or delayed) unless suit shall have been instituted against it and the
ACX shall not have taken control of such suit after notification thereof as
provided in Section 10.3.
10.3 In connection with any claim giving rise to indemnity hereunder
resulting from or arising out of any claim or legal proceeding by a Person who
is not a party to this Agreement, the ACX at its sole cost and expense may, upon
written notice to the Indemnified Party, assume the defense of any such claim or
legal proceeding if it provides assurances, reasonably satisfactory to the
Indemnified Party, that it will be financially able to satisfy such claims in
full if the same are decided adversely. The Indemnified Party shall be entitled
to participate in (but not control) the defense of any such action, with its
counsel and at its own expense; provided, however, that if the Indemnified
Party, in its sole discretion, determines that there exists a conflict of
interest between the ACX (or any constituent party thereof) and the Indemnified
Party, the Indemnified Party (or any constituent party thereof) shall have the
right to engage separate counsel, the reasonable costs and expenses of which
shall be paid by the ACX, but in no event shall ACX be liable for the costs and
expenses of more than one such separate counsel. If the ACX assumes the defense
of any such claim or legal proceeding, the ACX shall take all steps necessary to
pursue the resolution thereof in a prompt and diligent manner. The ACX shall be
entitled to consent to a settlement of, or the stipulation of any judgment
arising from, any such claim or legal proceeding, with the consent of the
Indemnified Party, which consent shall not be unreasonably withheld or delayed;
provided, however, that no such consent shall be required from the Indemnified
Party if (i) the ACX pays or causes to be paid all Losses arising out of such
settlement or judgment concurrently with the effectiveness thereof (as well as
all other Losses theretofore incurred by the Indemnified Party which then remain
unpaid or unreimbursed), (ii) in the case of a settlement, the settlement is
conditioned upon a complete release by the claimant of the Indemnified Party and
(iii) such settlement or judgment does not require the encumbrance of any asset
of the Indemnified Party or impose any restriction upon its conduct of business
10.4 Notwithstanding anything to the contrary stated in the Merger
Agreement or the 1998 Share Purchase Agreement, each of the following
representations and warranties (the "Specified Representations and Warranties")
and the covenant to indemnify with respect to the matters set forth in clause
(iv) of Section 10.1 shall survive the Closing and shall thereafter terminate
and expire on the first (1st) anniversary of the Closing Date, unless before
such date, an Indemnified Party has delivered to ACX a written notice of a claim
with respect thereto: (i) the representations and warranties of the Selling
Parties contained in this Agreement, (ii) the representations and warranties of
the Company contained in the Merger Agreement or any Company Document, in any
case, relating to either the Argentinean Sub or the Brazilian Sub, and (iii) the
representations and warranties of the Selling Parties in the 1998 Share Purchase
Agreement.
10.5 The aggregate amount of all claims arising under clauses (ii), (iii)
and (iv) of Section 10.1 hereof shall not exceed $250,000.
10.6 In consideration of the payment to each Selling Party at the Closing,
effective as of the Effective Time, the Selling Parties jointly and severally
release and discharge the Company and each of the Subsidiaries, and each of
their respective shareholders, affiliates, officers, directors, employees,
agents and attorneys, from any and all claims, contentions, demands, causes of
action at law or in equity, debts, liens, agreements, notes, obligations or
liabilities of any nature, character or description whatsoever, whether known or
unknown, which they or either of them may now or hereafter have against any such
Persons by reason of any matter, event, thing or state of facts occurring,
arising, done, omitted or suffered to be done prior to the Effective Time, other
than any obligations of the Company to either of them with respect to any
Intercompany Indebtedness not paid in full as of the Effective Time.
SECTION 11. ADDITIONAL COVENANTS OF THE SELLING PARTIES.
11.1 FURTHER ASSURANCES. From time to time and without additional
consideration, each of the Selling Parties shall (at its sole expense) execute
and deliver, or cause to be executed and delivered, such additional transfers,
assignments, endorsements, proxies, consents and other instruments, and shall
(at its sole expense) take such further actions, as Parent may reasonably
request for the purpose of carrying out and furthering the intent of this
Agreement.
11.2 LEGEND. Immediately after the execution of this Agreement (and from
time to time upon the acquisition by either Selling Party of Ownership of any
shares of Company Common Stock prior to the Expiration Date), each Selling Party
shall ensure that each certificate evidencing any outstanding shares of Company
Common Stock or other securities of the Company Owned by such Selling Party and
which are held in certificated form bears a legend in the following form:
THE SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
SOLD, EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE
WITH THE PROVISIONS OF THE OPTION, VOTING AND INDEMNIFICATION AGREEMENT DATED AS
OF MAY 26, 1999, AMONG ACX TECHNOLOGIES, INC., GOLDEN TECHNOLOGIES COMPANY, INC.
AND KYOCERA INTERNATIONAL, INC., A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
EXECUTIVE OFFICES OF GOLDEN GENESIS COMPANY.
SECTION 12. MISCELLANEOUS.
12.1 EXPENSES. Each party will pay that party's costs and expenses,
including attorney and accountant fees, in connection with this Agreement and
the transactions contemplated by this Agreement.
12.2 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. Subject to
Section 10.4, all representations, warranties, covenants and obligations of each
Selling Party contained in this Agreement shall survive the Expiration Date and
the Closing.
12.3 INDEPENDENCE OF OBLIGATIONS. The covenants and obligations of the
Selling Parties set forth in this Agreement shall be construed as independent of
any other agreement or arrangement between any Selling Party, on the one hand,
and the Company or Parent, on the other. The existence of any claim or cause of
action by any Selling Party against the Company or Parent shall not constitute a
defense to the enforcement of any of such covenants or obligations against such
Selling Party.
12.4 SPECIFIC PERFORMANCE. Each Selling Party agrees that in the event of
any breach or threatened breach by it of any covenant, obligation or other
provision contained in this Agreement, Parent shall be entitled (in addition to
any other remedy that may be available to Parent) to: (a) a decree or order of
specific performance or mandamus to enforce the observance and performance of
such covenant, obligation or other provision; and (b) an injunction restraining
such breach or threatened breach. Each Selling Party further agrees that neither
Parent nor any other Person shall be required to obtain, furnish or post any
bond or similar instrument in connection with or as a condition to obtaining any
remedy referred to in this Section 12.4, and it irrevocably waives any right it
may have to require the obtaining, furnishing or posting of any such bond or
similar instrument.
12.5 NOTICES. All notices and other communications hereunder shall be in
writing and shall be delivered personally, by FedEx or other nationally
recognized next-day courier, telecopied with confirmation of receipt, or mailed
first class, postage prepaid, by certified mail, return receipt requested, to
the parties at the addresses specified below (or at such other address for a
party as shall be specified by like notice; provided that notices of a change of
address shall be effective only upon receipt thereof) All notices, requests and
other communications shall be deemed given on the date of actual receipt or
delivery as evidenced by written receipt, acknowledgement or other evidence of
actual receipt or delivery to the address specified below. In case of service by
telecopy, a copy of such notice shall be personally delivered or sent by
certified mail, in the manner set forth above, within three (3) business days
thereafter.
If to Parent:
Kyocera International, Inc.
0000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: President
Fax No.: (000) 000-0000
With a copy to:
Loeb & Loeb LLP
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Fax No.: (000) 000-0000
If to Stockholder or ACX, to:
ACX Technologies, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxx
Fax No.: (000) 000-0000
With a copy to:
ACX Technologies, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx X.X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
12.6 SEVERABILITY. If any provision of this Agreement or any part of any
such provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then (a) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Agreement. Each provision of this
Agreement is separable from every other provision of this Agreement, and each
part of each provision of this Agreement is separable from every other part of
such provision.
12.7 APPLICABLE LAW; JURISDICTION. THIS AGREEMENT IS MADE UNDER, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED SOLELY THEREIN, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any action between the parties
hereto, whether arising out of this Agreement or otherwise: (a) each of the
parties irrevocably and unconditionally consents and submits to the exclusive
jurisdiction and venue of the state and federal courts located in the State of
Delaware; (b) if any such action is commenced in a state court, then, subject to
applicable law, no party shall object to the removal of such action to any
federal court located in Delaware; (c) each of the parties irrevocably waives
the right to trial by jury; and (d) each of the parties irrevocably consents to
service of process by first class certified mail, return receipt requested,
postage prepaid, to the address at which such party is to receive notice in
accordance with Section 12.5.
12.8 WAIVER. No failure on the part of Parent to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of Parent in
exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy. Parent shall not be deemed to have waived any claim arising out of this
Agreement, or any power, right, privilege or remedy under this Agreement, unless
the waiver of such claim, power, right, privilege or remedy is expressly set
forth in a written instrument duly executed and delivered on behalf of Parent;
and any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
12.9 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought against any Selling Party, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
12.10 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
12.11 ENTIRE AGREEMENT. This Agreement, the Assignment and the Proxies set
forth the entire understanding of Parent and the Selling Parties relating to the
subject matter hereof and thereof and supersede all other prior agreements and
understandings between Parent and any Selling Party relating to the subject
matter hereof and thereof.
12.12 NON-EXCLUSIVITY. The rights and remedies of Parent under this
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Agreement, and the
obligations and liabilities of each Selling Party under this Agreement, are in
addition to their respective rights, remedies, obligations and liabilities under
common law requirements and under all applicable statutes, rules and
regulations. Nothing in this Agreement shall limit any Selling Party's
obligations, or the rights or remedies of Parent, under the Assignment or any
Proxy; and nothing in the Assignment or any Proxy shall limit any Selling
Party's obligations, or any of the rights or remedies of Parent, under this
Agreement.
12.13 AMENDMENTS. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of Parent and the Selling Parties.
12.14 ASSIGNMENT; BINDING EFFECT. Neither this Agreement nor any of the
interests or obligations hereunder may be assigned or delegated by any Selling
Party, and any attempted or purported assignment or delegation of any of such
interests or obligations shall be void. Subject to the preceding sentence, this
Agreement shall be binding upon each Selling Party and its successors and
assigns, and shall inure to the benefit of Parent and its successors and
assigns. Nothing in this Agreement is intended to confer on any Person (other
than Parent and its successors and assigns) any rights or remedies of any
nature.
12.15 THIRD-PARTY BENEFICIARY. The Company and the trustees of the
Company's 401(k) Plan are intended to be a third-party beneficiary of the
agreements of the parties hereto set forth in Sections 7 and 10 hereof.
12.16 COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
12.17 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context requires: the
singular number shall include the plural, and vice versa; the masculine gender
shall include the feminine and neuter genders; the feminine gender shall include
the masculine and neuter genders; and the neuter gender shall include masculine
and feminine genders.
(b) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Agreement to
"Sections" and "Exhibits" are intended to refer to Sections of this Agreement
and Exhibits to this Agreement.
IN WITNESS WHEREOF, Parent and the Selling Parties have caused this
Agreement to be executed as of the date first written above.
PARENT:
Kyocera International, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: President
STOCKHOLDER:
Golden Technologies Company, Inc.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
ACX Technologies, Inc.
By: /s/ Xxxxxx Xxxxx, Xx.
Name: Xxxxxx Xxxxx, Xx.
Title: President and Chief
Executive Officer
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of Golden Genesis Company, a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Kyocera International, Inc., a California
corporation ("Parent"), the attorney and proxy of the undersigned with full
power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to (i) the ______________ shares of common
stock of the Company owned of record by the undersigned as of the date of this
proxy, and (ii) any and all other shares of capital stock (whether common or
preferred) of the Company which the undersigned may acquire on or after the date
hereof. (The shares of the capital stock of the Company referred to in clauses
"(i)" and "(ii)" of the immediately preceding sentence are collectively referred
to as the "Shares.") Upon the execution hereof, all prior proxies given by the
undersigned with respect to any of the Shares are hereby revoked, and the
undersigned agrees that no subsequent proxies will be given with respect to any
of the Shares.
This proxy is irrevocable, is coupled with an interest, is granted in
connection with the execution and delivery of the Voting and Indemnification
Agreement, of even date herewith, among Parent, [ACX Technologies, Inc.] [Golden
Technologies Company, Inc.] and the undersigned (the "Voting Agreement") and is
granted in consideration of Parent entering into the Agreement and Plan of
Merger, of even date herewith, among Parent, GGC Acquisition Company ("Merger
Sub") and the Company (the "Merger Agreement").
The attorney and proxy named above (and its successors) will be
empowered, and may exercise this proxy, to vote the Shares at any meeting of the
stockholders of the Company, however called, and at every adjournment or
postponement thereof, or in connection with any solicitation of written consents
from stockholders of the Company (i) FOR the approval and adoption of the Merger
Agreement and the approval of the merger contemplated thereby (the "Merger"),
and FOR each of the other actions contemplated by the Merger Agreement, and (ii)
AGAINST any action or agreement that would result in a breach in any material
respect of any representation, warranty or covenant of the Company in the Merger
Agreement, and AGAINST any action or agreement that would impede, interfere
with, delay, postpone, attempt to discourage the Merger or otherwise materially
adversely affect the Merger, including, without limitation, any action or
agreement with respect to an Acquisition Transaction (as defined in the Merger
Agreement) with any person or entity (other than Parent or Merger Sub). The
undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the permitted successors and assigns
of the undersigned.
If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
This proxy shall terminate upon the valid termination of the Voting
Agreement.
Dated: _______________, 1999
[Golden Technologies Company, Inc.]
[ACX Technologies, Inc.]
By:
Name:
Title:
EXHIBIT B
FORM OF XXXX OF SALE AND ASSIGNMENT
This Xxxx of Sale and Assignment is made and entered into this ____ day
of ______________, 1999, by and among ACX Technologies, Inc., a Colorado
corporation ("ACX"), Golden Technologies Company, Inc., a Colorado corporation
("GTC"), Golden International, Inc. a Colorado corporation (collectively
"Assignors") and Golden Genesis Company, a Delaware corporation (hereinafter
"Assignee") and is made with reference to the following:
A. Concurrently herewith, Kyocera International, Inc., a California
corporation ("Parent"), GGC Acquisition Company, a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and Assignee, more than fifty
percent of whose outstanding shares of capital stock are held by GTC, are
entering into an Agreement and Plan of Merger (as amended from time to time, the
"Merger Agreement"), pursuant to which Merger Sub will be merged with and into
Assignee (the "Merger").
B. In order to induce Parent to enter into the Merger Agreement,
concurrently herewith, ACX, GTC and Parent are entering into an Option, Voting
and Indemnification Agreement (the "Subject Agreement"), which provides, among
other things, for the assignment by Assignors to Assignee of certain assets of
Assignors hereinbelow described.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE 1
ASSIGNMENT
For valuable consideration, the receipt and sufficiency of which
Assignors hereby acknowledge, each Assignor, pursuant to and in compliance with
the Subject Agreement, does, effective as of the Effective Time, hereby sell,
convey, transfer, assign and deliver to Assignee, and Assignee does, effective
as of the Effective Time, hereby accept from each Assignor, all of such
Assignor's right, title and interest in and to all of the following interests
and assets (the "Transferred Assets"):
All Intellectual Property (as defined below) owned by such Assignor
(whether or not developed by such Assignor) for use in (a) solar electric
applications, and (b) the manufacture of CdTe thin film modules (or otherwise
relating thereto) other than any such Intellectual Property in which PE Limited
Liability Company has an interest. As used herein, "Intellectual Property" shall
mean all inventions (whether patentable or unpatentable and whether or not
reduced to practice), all improvements thereto, and all patents, patent
applications and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions and reexaminations
thereof, trademarks, service marks, trade dress, logos, trade names and
corporate names, together with all translations, adaptations, derivations and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations and renewals in connection therewith, copyrightable
works, all copyrights and all applications, registrations and renewals in
connection therewith, mask works and all applications, registrations and
renewals in connection therewith, trade secrets and confidential business
information (including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques, technical
data, designs, drawings, specifications, customer and supplier lists, pricing
and cost information and business and marketing plans and proposals),
proprietary software, proprietary rights and copies and tangible embodiments
thereof (in whatever form or medium).
TO HAVE AND TO HOLD all such interests and assets hereby assigned,
transferred and conveyed unto Assignee, its successors and assigns, to its and
their own use and behalf forever.
ARTICLE 2
FURTHER ASSURANCES
Assignors shall, as promptly as practicable after the date hereof,
prepare a list describing in detail all Transferred Assets (including, without
limitation, all registrations thereof or applications to register such
Transferred Assets). Additionally, at any time and from time to time after the
date hereof, upon the request of Assignee, execute, acknowledge and deliver all
such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances, and take all such further actions, as shall be
necessary or desirable to give effect to the transactions hereby consummated and
to collect and reduce to the possession of Assignee any and all of the interests
and assets hereby transferred to Assignee. Without limiting the generality of
the foregoing, each Assignor hereby appoints Assignee, and its successors and
assigns, the true and lawful attorney of such Assignor, in the name of Assignee
or in the name of such Assignor but for the benefit and at the expense of
Assignee, to demand and receive any and all interests and assets hereby
transferred; to give releases and acquittances for or in respect of the same or
any part thereof; to endorse, collect and deposit any checks, drafts or other
instruments payable to such Assignor which constitute accounts receivable hereby
assigned or relate to payments for goods and/or services provided by such
Assignor or Assignee in connection with the accounts or rights under contract
hereby assigned; to institute and prosecute, in the name of such Assignor or
otherwise, any and all proceedings at law, in equity or otherwise, which
Assignee, or its successors and assigns, may deem necessary or advisable to
collect, assert or enforce any claim, right, title, debt or account hereby
assigned; and to defend and compromise any and all actions, suits or proceedings
in respect of any of the interests and assets hereby assigned that Assignee, or
its successors or assigns, shall deem necessary or advisable. Assignor hereby
declares that the foregoing powers are coupled with an interest and shall be
irrevocable.
ARTICLE 3
TERMINATION
This Xxxx of Sale and Assignment shall automatically terminate and be
of no further force or effect upon the valid termination of the Merger
Agreement.
ARTICLE 4
SUCCESSORS AND ASSIGNS
This Instrument and the covenants and agreements herein contained shall
inure to the benefit of Assignee and shall bind each Assignor and their
respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Xxxx of Sale
and Assignment as of the day and year first hereinabove written.
"Assignors"
ACX Technologies, Inc.
By:
Its:
Golden Technologies Company, Inc.
By:
Its:
Golden International, Inc.
By:
Its:
"Assignee"
Golden Genesis Company
By:
Its:
EXHIBIT C
INTERCOMPANY LOANS
[ACX to provide list]
EXHIBIT D
GUARANTIES
[ACX to provide list and copies of all Guaranties listed]
