Exhibit 2.2
AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
THIS AMENDMENT (the "Amendment") to the Agreement and Plan of
Merger and Reorganization, dated as of June 12, 1998 by and among METRON
TECHNOLOGY B.V., a Netherlands corporation ("Purchaser"), METRON ACQUISITION
SUB, INC., a Nevada corporation and a wholly owned subsidiary of Purchaser
("Merger Sub"), X.X. XXXXX CO., a Nevada corporation ("Xxxxx") and certain
stockholders of Xxxxx (the "Stockholders") who previously joined in the
execution of the Merger Agreement by executing a Joinder Agreement (the "Joinder
Agreement") is entered into as of July 13, 1998 by and among Purchaser, Merger
Sub, Xxxxx and the Stockholders. Capitalized terms not specifically defined
herein shall have the meanings ascribed to them in the Merger Agreement.
AGREEMENT
Purchaser, Merger Sub, Xxxxx and the Signing Stockholders, intending to
be legally bound, agree as follows:
1. Section 12 of the Merger Agreement is hereby amended and replaced in
its entirety with the following:
SECTION 12. INDEMNIFICATION, ETC.
12.1 SURVIVAL OF REPRESENTATIONS AND COVENANTS.
(a) The representations and warranties made by Xxxxx, the Signing
Stockholders, Purchaser and Merger Sub in this Agreement (including without
limitation the representations and warranties set forth in Sections 2, 3 and
4) shall survive the Closing and shall expire on the earlier of (i) the date
of issuance of an audit report with respect to financial statements which
both contain combined operations of Purchaser and Xxxxx and include the
Closing Date or (ii) ninety (90) days after the Closing Date (the "Expiration
Date"); provided, however, that (w) notwithstanding the foregoing, the Xxxxx
Specified Representations (other than Section 2.4), the Signing Stockholder
Specified Representations and the Purchaser Specified Representations (other
than Section 4.4) shall survive the Closing for the applicable statute of
limitations, (x) if, at any time prior to the expiration of a representation
or warranty made by Xxxxx, any Purchaser Indemnitee (acting in good faith)
delivers to the Agent a written notice that complies with the applicable
provision of Sections 12.10 or 12.12 alleging the existence of a Breach of
such representation or warranty and asserting a claim for recovery under
Section 12.2 based on such alleged inaccuracy or other Breach, then the claim
asserted in such notice shall survive against the Identified Stockholders
until such time as such claim is fully and finally resolved, (y) if, at any
time prior to the expiration of a representation or warranty made by any of
the Signing Stockholders, any Purchaser Indemnitee (acting in good faith)
delivers to a Signing Stockholder obligated to provide indemnity under this
Section 12 in respect of such representation or warranty a written notice
that complies with the applicable provision of Sections 12.10 or 12.12
alleging the existence of a Breach of such representation and warranty and
asserting a claim for recovery under Section 12.4 based on such alleged
inaccuracy or other
1.
Breach, then the claim asserted in such notice shall survive against the
Signing Stockholder to whom such notice was delivered until such time as such
claim is fully and finally resolved and (z) if, at any time prior to the
expiration of a representation or warranty made by Purchaser or Merger Sub,
any Stockholder Indemnitee (acting in good faith) delivers to Purchaser a
written notice that complies with the applicable provision of Sections 12.10
or 12.12 alleging the existence of a Breach of such representation and
warranty and asserting a claim for recovery under Section 12.5 based on such
alleged inaccuracy or other Breach, then the claim asserted in such notice
shall survive until such time as such claim is fully and finally resolved.
(b) Notwithstanding anything in this Agreement, from and after the
Closing, any matter which has been accurately disclosed by Xxxxx or any of
the Signing Stockholders in the Xxxxx Disclosure Schedule or the Signing
Stockholder Disclosure Schedule or any update to either of the foregoing
delivered to Purchaser at or prior to Closing, or in the Xxxxx Closing
Certificate or any of the Signing Stockholders' Closing Certificates, (i)
shall be deemed accepted by Purchaser and Merger Sub and (ii) shall not form
the basis of any claim for Damages or any other remedy by any Purchaser
Indemnitee against any of the Identified Stockholders or Signing
Stockholders, as the case may be. Notwithstanding anything in this Agreement,
from and after the Closing, any matter which has been accurately disclosed by
Purchaser or Merger Sub in the Purchaser Disclosure Schedule or any update
thereto delivered to Xxxxx or to the Signing Stockholders at or prior to
Closing, or in the Purchaser Closing Certificate, (i) shall be deemed
accepted by Xxxxx and the Signing Stockholders and (ii) shall not form the
basis of any claim for Damages or any other remedy by any of the Stockholder
Indemnitees against Purchaser.
(c) For purposes of this Agreement: (i) each statement or other item
of information set forth in the Xxxxx Disclosure Schedule or in the Xxxxx
Closing Certificate shall be deemed to be a representation and warranty made
by Xxxxx in this Agreement; (ii) each statement or other item of information
set forth in the Signing Stockholder Disclosure Schedule or in any of the
Signing Stockholders' Closing Certificates shall be deemed to be a
representation and warranty in this Agreement made by the Signing Stockholder
to whom such statement or item of information relates; and (iii) each
statement or other item of information set forth in the Purchaser Disclosure
Schedule or in the Purchaser Closing Certificate shall be deemed to be a
representation and warranty made by Purchaser and Merger Sub in this
Agreement.
12.2 INDEMNIFICATION BY IDENTIFIED STOCKHOLDERS REGARDING XXXXX
REPRESENTATIONS AND WARRANTIES.
(a) To the extent permitted by applicable law, but subject to the
terms and limitations set forth in this Section 12, from and after the
Effective Time, the Identified Stockholders, pro rata based on their
respective ownership of the Shares, shall hold harmless and indemnify each of
the Purchaser Indemnitees from and against, and shall compensate and
reimburse each of the Purchaser Indemnitees for, any Damages which are
directly or indirectly suffered or incurred by any of the Purchaser
Indemnitees or to which any of the Purchaser Indemnitees may otherwise become
subject at any time (regardless of whether or not such Damages relate to any
third-party claim) and which arise directly or indirectly from or as a direct
or indirect result of, or are directly or indirectly connected with:
2.
(i) any Breach at Closing of any representation or warranty
made by Xxxxx in this Agreement (except with respect to Section 2.31, without
giving effect to any Xxxxx Material Adverse Effect qualification or to the
words "material," "materially" or "in all material respects" contained or
incorporated directly or indirectly in such representation or warranty but
giving effect to any update to the Xxxxx Disclosure Schedule delivered by
Xxxxx to Purchaser or Merger Sub at or prior to the Closing);
(ii) any Breach of any covenant of Xxxxx in this Agreement
which covenant by its terms, is to be performed in full by Xxxxx prior to the
Closing; or
(iii) any (A) Proceeding brought by a third-party as
contemplated by Section 12.10 arising out of any Breach or alleged Breach of
the type referred to in clause (i) or (ii) above, or (B) arbitration or other
Proceeding brought by a Purchaser Indemnitee as allowed by Section 12.12 or
pursuant to Section 13.13 for the purpose of enforcing any of its rights
under this Section 12 or Section 13.13 in respect of any Breach or alleged
Breach of the type referred to in clause (i) or (ii) above.
(b) The Identified Stockholders acknowledge and agree that, if there
is any Breach of any representation, warranty or other provision relating to
Xxxxx or Xxxxx'x business, condition, assets, liabilities, operations,
financial performance or net income (or any aspect or portion thereof), and
Xxxxx incurs Damages as a result of such Breach, then Purchaser itself shall
be deemed, by virtue of its direct or indirect ownership of common stock of
Xxxxx, to have incurred such Damages as a result of such Breach or Liability.
Nothing contained in this Section 12.2(b) shall have the effect of (i)
limiting the circumstances under which Purchaser may otherwise be deemed to
have incurred Damages for purposes of this Agreement, (ii) limiting the other
types of Damages that Purchaser may be deemed to have incurred (whether in
connection with any such Breach or Liability or otherwise), or (iii) limiting
the rights of Xxxxx or any of the other Purchaser Indemnitees under this
Section 12.2. Nothing in this Agreement shall be deemed to provide that more
than one Purchaser Indemnitee shall be entitled to recover Damages from the
Identified Stockholders with respect to the same Breach or alleged Breach of
the type referred to in clauses (i) and (ii) of Section 12.2(a).
(c) It is acknowledged and agreed that the Purchaser Indemnitees'
rights and remedies with respect to Damages related to the Xxxxxx Claims
[and Excluded Claims] (as defined in the letter agreement dated as July 13,
1998 by and among Purchaser, Xxxxx and the Identified Stockholders (as
amended, the "Letter Agreement")) shall be pursuant to the Letter Agreement
exclusively, and that the Purchaser Indemnitees shall have no rights or
remedies with respect to any such Damages pursuant to this Agreement.
12.3 THRESHOLD; CEILING; OTHER LIMITATIONS.
(a) Subject to Section 12.3(c) and Section 12.3(d), the Identified
Stockholders shall not be required to make any payment pursuant to Section
12.2 and the Signing Stockholders shall not be required to make any payment
pursuant to Section 12.4, until such time as the total amount of all Damages
that have been directly or indirectly suffered or incurred by any one or more
of the Purchaser Indemnitees, or to which any one or more of the Purchaser
Indemnitees has or have otherwise become subject, exceeds $150,000 in the
aggregate. At such time as the
3.
total amount of such Damages exceeds $150,000 in the aggregate, the Purchaser
Indemnitees shall be entitled to be indemnified (on the terms stated in this
Section 12) only against the portion of such Damages exceeding $150,000.
(b) Subject to Section 12.3(c), the maximum aggregate liability of
all of the Stockholders under Sections 12.2(a) and 12.4(a) shall be limited
to $1,011,633, of which the maximum aggregate liability of the Identified
Stockholders under Section 12.2(a) shall be $676,694.
(c) The limitations on the Stockholders' obligations that are set
forth in Sections 12.3(a) and 12.3(b) shall not apply to: (i) with respect to
the Identified Stockholders, any Breach of the Xxxxx Specified
Representations (other than a Breach of Section 2.4) or, with respect to
Signing Stockholders, any Breach of the Signing Stockholder Specified
Representations. In addition, (i) the limitations on any Identified
Stockholder's obligations that are set forth in Sections 12.3(a) and 12.3(b)
shall not apply to Damages arising out of a Breach of a representation,
warranty or covenant if (A) Xxxxx or any of the Identified Stockholders had
Knowledge of such Breach as of the Closing and (B) such Breach was not
disclosed to Purchaser or Merger Sub at or prior to Closing, and (ii) the
limitations on any Signing Stockholder's obligations that are set forth in
Sections 12.3(a) shall not apply to Damages arising out of a Breach of a
representation, warranty or covenant if (A) the applicable Signing
Stockholder had knowledge of such Breach as of the Closing and (B) such
Breach was not disclosed to Purchaser or Merger Sub at or prior to Closing.
(d) Notwithstanding anything in this Agreement, (i) each Identified
Stockholder's aggregate liability with respect to any Damages recoverable
pursuant to Section 12.2 shall not exceed such Identified Stockholder's pro
rata portion of such Damages after application of the limitations contained
in this Section 12, based on the respective number of Shares owned by such
Stockholder immediately prior to the Closing and (ii) the maximum aggregate
liability of any Stockholder under this Section 12 or otherwise in respect of
the Merger shall be limited to 8% of the shares of Purchaser Capital Stock
received by such Stockholder pursuant to this Agreement and the Merger. Each
Identified Stockholder's pro rata portion of Damages pursuant to Section 12.2
shall be based on his pro rata portion of all of the Shares outstanding
immediately prior to the Merger.
(e) No Stockholder shall have any liability to any Purchaser
Indemnitee as a result of the Breach by another Stockholder of any
representation, warranty, covenant or obligation of such other Stockholder in
this Agreement or otherwise.
12.4 INDEMNIFICATION BY SIGNING STOCKHOLDERS REGARDING SIGNING STOCKHOLDER
REPRESENTATIONS AND WARRANTIES AND COVENANTS.
(a) To the extent permitted by applicable law but subject to the
terms and limitations set forth in this Section 12, from and after the
Closing Date, each Signing Stockholder severally agrees to hold harmless and
indemnify each of the Purchaser Indemnitees from and against, and shall
compensate and reimburse each of the Purchaser Indemnitees for, any Damages
which are directly or indirectly suffered or incurred by any of the Purchaser
Indemnitees or to which any of the Purchaser Indemnitees may otherwise become
subject at any
4.
time (regardless of whether or not such Damages relate to any third-party
claim) and which arise directly or indirectly from or as a direct or indirect
result of, or are directly or indirectly connected with:
(i) any Breach at Closing of any representation or warranty
made by such Signing Stockholder in this Agreement (without giving effect to
any qualification by the words "material," "materially" or "in all material
respects" contained or incorporated directly in such representation or
warranty but giving effect to any update to the Signing Stockholders'
Disclosure Schedule delivered by the Signing Stockholders to Purchaser or
Merger Sub at or prior to the Closing);
(ii) any Breach of any covenant or obligation of such Signing
Stockholder in this Agreement which covenant or obligation, by its terms, is
to be performed in full by such Signing Stockholder prior to Closing; or
(iii) any (A) Proceeding brought by a third-party as
contemplated by Section 12.10 arising out of any Breach or alleged Breach of
the type referred to in clause (i) or (ii) above, or (B) arbitration or other
Proceeding brought by a Purchaser Indemnitee as allowed by Section 12.12 or
pursuant to Section 13.13 for the purpose of enforcing any of its rights
under this Section 12 or Section 13.13 in respect of any Breach or alleged
Breach of the type referred to in clause (i) or (ii) above.
(b) The Signing Stockholders acknowledge and agree that, in the
event of the occurrence of any Purchaser Indemnified Matter, then Purchaser
shall be deemed, by virtue of its ownership of Xxxxx Common Stock, to have
incurred Damages as a result of such Purchaser Indemnified Matter. Nothing
contained in this Section 12.4(b) shall have the effect of (i) limiting the
circumstances under which Purchaser may otherwise be deemed to have incurred
Damages for purposes of this Agreement, (ii) limiting the other types of
Damages that Purchaser may be deemed to have incurred (whether in connection
with any such Breach or Liability or otherwise) or (iii) limiting the rights
of Xxxxx or any of the other Purchaser Indemnitees under this Section 12.4.
Nothing in this Agreement shall be deemed to provide that more than one
Purchaser Indemnitee shall be entitled to recover Damages from any Signing
Stockholder with respect to the same Breach or alleged Breach of the type
referred to in clauses (i) and (ii) of Section 12.4(a).
12.5 INDEMNIFICATION BY PURCHASER AND MERGER SUB.
(a) To the extent permitted by applicable law, but subject to the
terms and limitations of this Section 12, from and after the Effective Time,
Purchaser and Merger Sub, jointly and severally, shall hold harmless and
indemnify each of the Stockholder Indemnitees from and against, and shall
compensate and reimburse each of the Stockholder Indemnitees for, any Damages
which are directly or indirectly suffered or incurred by any of the
Stockholder Indemnitees or to which any of the Stockholder Indemnitees may
otherwise become subject at any time (regardless of whether or not such
Damages relate to any third-party claim) and which arise directly or
indirectly from or as a direct or indirect result of, or are directly or
indirectly connected with:
5.
(i) any Breach at Closing of any representation or warranty made by
Purchaser or Merger Sub in this Agreement (except with respect to Section
4.28, without giving effect to any Purchaser Material Adverse Effect
qualification or any other qualification by the words "material,"
"materially" or "in all material respects" contained or incorporated directly
or indirectly in such representation or warranty but giving effect to any
update to the Purchaser Disclosure Schedule delivered by Purchaser and Merger
Sub to Xxxxx at or prior to the Closing);
(ii) any Breach of any covenant or obligation of Purchaser or
Merger Sub in this Agreement which covenant or obligation, by its terms, is
to be performed in full by Purchaser or Merger Sub prior to Closing; or
(iii) any (A) Proceeding brought by a third-party as
contemplated by Section 12.10 arising out of any Breach or alleged Breach of
the type referred to in clause (i) or (ii) above, or (B) arbitration or other
Proceeding brought by a Stockholder Indemnitee as allowed by Section 12.12 or
pursuant to Section 13.13 for the purpose of enforcing any of its rights
under this Section 12 or Section 13.13 in respect of any Breach or alleged
Breach of the type referred to in clause (i) or (ii) above.
(b) Each of Purchaser and Merger Sub acknowledges and agrees that,
in the event of the occurrence of a Stockholder Indemnified Matter, then the
Signing Stockholders shall be deemed, by virtue of their direct or indirect
ownership of Purchaser Capital Stock, to have incurred Damages as a result of
such Breach, inaccuracy, misrepresentation or omission.
12.6 THRESHOLD; CEILING.
(a) Subject to Section 12.6(c), Purchaser and Merger Sub shall not
be required to make any indemnification payment pursuant to Section 12.5
until such time as the total amount of all Damages that have been directly or
indirectly suffered or incurred by any one or more of the Stockholder
Indemnitees, or to which any one or more of the Stockholder Indemnitees has
or have otherwise become subject, exceeds $650,000 in the aggregate. At such
time as the total amount of such Damages exceeds $650,000 in the aggregate,
the Stockholder Indemnitees shall be entitled to be indemnified (on the terms
stated in this Section 12) only against the portion of such Damages exceeding
$650,000.
(b) Subject to Section 12.6(c), the maximum liability of Purchaser
and Merger Sub under Section 12.5(a) shall be limited to $1,011,633.
(c) The limitations on the Purchaser's and Merger Sub's
indemnification obligations that are set forth in Sections 12.6(a) and
12.6(b) shall not apply to any Breach of the Purchaser Specified
Representations other than a Breach of Section 4.4. In addition, the
limitations on Purchaser's and Merger Sub's obligations that are set forth in
Sections 12.6(a) and 12.6(b) shall not apply to Damages arising out of a
Breach of a representation, warranty or covenant if (i) Purchaser or Merger
Sub had Knowledge of such Breach as of the Closing and (ii) such Breach was
not disclosed to Xxxxx at or prior to Closing.
12.7 SATISFACTION OF INDEMNIFICATION CLAIM. In the event any Identified
Stockholder, any Signing Stockholder, Purchaser or Merger Sub shall have any
liability (for indemnification or otherwise) to any indemnitee under this
Section 12, such Identified Stockholder, Signing
6.
Stockholder, Purchaser or Merger Sub shall satisfy such liability by
delivering (or, in the case of indemnity by Purchaser or Merger Sub, issuing
and delivering) to such indemnitee the number of shares of Purchaser Capital
Stock determined by dividing (a) the aggregate dollar amount of such
liability by (b) the Fair Market Value per Share of Purchaser Capital Stock
subject to adjustment if after the date of this Agreement the outstanding
shares of Purchaser Capital Stock are changed into a different number or
class of shares by reason of any stock dividend, subdivision,
reclassification, recapitalization, split-up, combination or similar
transaction.
12.8 NO CONTRIBUTION. Except for rights and claims reserved as provided in
Section 2(d) of the Release signed by each Signing Stockholder at Closing, the
form of which is attached hereto as Exhibit O, from and after the Effective Time
each Signing Stockholder waives, and acknowledges and agrees that such Signing
Stockholder shall not have and shall not exercise or assert or attempt to
exercise or assert, any right of contribution or right of indemnity or any other
right or remedy against Xxxxx in connection with any indemnification obligation
to which such Signing Stockholder may become subject under this Section 12.
12.9 EXCLUSIVITY OF INDEMNIFICATION REMEDIES.
(a) To the fullest extent permitted by applicable law from and after
the Effective Time, except with respect to fraud claims and claims under
applicable securities laws, the indemnification remedies and other remedies
provided in this Section 12 or in Section 13.13 shall be the exclusive
remedies of the Purchaser Indemnitees for the Breach of any representation,
warranty, covenant or obligation by Xxxxx or any Signing Stockholder in this
Agreement (without limiting the rights of the parties under any other
agreement), and shall be in lieu of any rights the Purchaser Indemnitees
otherwise may have under law or in equity to seek or obtain Damages or any
other remedy against the Identified Stockholders or the Signing Stockholders,
as the case may be, with respect to any such Breaches, all of which other
rights and remedies each of the Purchaser Indemnitees hereby waives.
Notwithstanding the foregoing, nothing in this Agreement shall be deemed to
affect the Letter Agreement, which shall remain in full force and effect.
(b) To the fullest extent permitted by applicable law from and after
the Effective Time, except with respect to fraud claims and claims under
applicable securities laws, the indemnification remedies and other remedies
provided in this Section 12 or in Section 13.13 shall be the exclusive
remedies of the Stockholder Indemnitees for the Breach of any representation,
warranty, covenant or obligation by Purchaser in this Agreement (without
limiting the rights of the parties under any other agreement), and shall be
in lieu of any rights the Stockholder Indemnitees otherwise may have under
law or in equity to seek or obtain Damages or any other remedy against
Purchaser and Merger Sub with respect to any such Breaches, all of which
other rights and remedies each of the Stockholder Indemnitees hereby waives.
(c) Notwithstanding Section 12.9(a) or 12.9(b), nothing in this
Section 12 shall limit or adversely affect any right or remedy of any party
hereto with respect to any Breach or alleged Breach by another party hereto
of any covenant or obligation in this Agreement or in any of the other
Transactional Agreements, which covenant or obligation by its terms is to be
performed or complied with at or after Closing.
7.
12.10 THIRD PARTY CLAIMS.
(a) Any party seeking indemnification under this Section 12 (an
"indemnified party") in connection with any claim or Proceeding asserted by a
third party which is reasonably likely to result in a claim for
indemnification under Section 12 of this Agreement shall provide notice to
the indemnifying party of any such claim or Proceeding, provided that any
notice to the Identified Stockholders with respect to a claim pursuant to
Section 12.2 may be properly made by Purchaser to the Agent.
(b) If a third party asserts that an indemnified person is liable to
such third party for a monetary or other obligation which may constitute or
result in Damages for which such indemnified person may be entitled to
indemnification pursuant to Section 12 of this Agreement, and such
indemnified person reasonably determines that it has a valid business reason
to fulfill such obligation, then: (i) such indemnified person may make a
claim against the indemnifying party for indemnification pursuant to Section
12; and (ii) such indemnified person shall be reimbursed, in accordance with
the provisions hereof, for any such Damages for which it is entitled to
indemnification pursuant to Section 12.
(c) (i) Within 20 days after delivery of any notification
contemplated by Section 12.10(a), the indemnifying party may, subject to the
provisions of Section 12.10(c)(ii), upon written notice thereof to the
indemnified party, assume control of the defense of such claim or Proceeding
with counsel selected by the indemnifying party and reasonably satisfactory
to the indemnified party. If the indemnifying party does not assume control
of such defense, the indemnified party shall control such defense. The party
not controlling such defense may participate therein at its own expense;
provided that if the indemnifying party assumes control of such defense and
if independent counsel for the indemnified party reasonably concludes that
the indemnified party and the indemnifying party have conflicting interests
with respect to such claim or Proceeding, the reasonable fees and expenses of
counsel to the indemnified party incurred in connection with the defense of
such claim or Proceeding shall be considered Damages for purposes of this
Agreement. The party controlling such defense shall keep the other party
advised of the status of such claim or Proceeding and the defense thereof and
shall consider in good faith recommendations made by the other party with
respect thereto.
(ii) Prior to settling or compromising any claim or Proceeding,
the indemnifying party shall consult with, and duly take into account the
interests of, the indemnified party. The indemnifying party shall provide the
indemnified party with at least ten business days' advance written notice of
any settlement or compromise of a claim or Proceeding that the indemnifying
party intends to accept, and the indemnifying party shall not agree to any
settlement of any claim or Proceeding without the prior written consent of
the indemnified party, which consent shall not be unreasonably withheld.
Likewise, the indemnifying party shall not be liable for any settlement of
any claim or Proceeding entered into without the prior written consent of the
indemnifying party, which consent shall not be unreasonably withheld. It is
expressly agreed that it shall be construed as reasonable hereunder for an
indemnified party to withhold its consent unless such settlement provides for
full and unconditional release of such party from any and all liabilities and
obligations of any nature whatsoever with respect to such claim or Proceeding.
8.
(iii) In the event that the indemnified party withholds its consent
to a settlement under Section 12.10(c)(ii), and such consent has been
unreasonably withheld (taking into consideration the final sentence of
Section 12.10(c)(ii)), the indemnifying party shall not settle or compromise
such claim or Proceeding on the terms proposed, and the indemnified party
shall assume control of the claim or Proceeding. In such event, the
indemnified party shall hold harmless and indemnify the indemnifying party to
the extent (A) the indemnifying party's indemnity obligations are increased
as a result of the failure of such claim or Proceeding to be settled or
compromised as proposed in the offer that was acceptable to the indemnifying
party (the "Original Offer") and (B) the indemnifying party is required to
pay any Damages with respect to such claim or Proceeding in excess of the
amount the indemnifying party would otherwise have incurred under the
Original Offer; PROVIDED, HOWEVER, that the indemnifying party shall remain
liable in any event up to the amount proposed in the Original Offer. If,
however, any Damages paid with respect to such claim or Proceeding, or any
compromise or settlement of such claim or Proceeding, shall be less than the
amount proposed in the Original Offer, then the indemnifying party shall
indemnify the indemnified party for the payment of Damages of such compromise
or settlement subject to the limitations set forth in this Section 12.
(iv) Notwithstanding any of the foregoing, if a claim or Proceeding
relates to a matter which, if adversely determined, would (A) have a material
adverse impact on Purchaser's liability in another Proceeding which is not
subject to indemnification hereunder, (B) have a material adverse impact on
the future conduct of Purchaser or its affiliates' business or operations on
a continuing basis; or (C) have a material adverse impact on Purchaser or its
affiliates' tax or accounting positions on a continuing basis, then Purchaser
shall have the right to defend, contest, settle and otherwise control the
resolution of any such claim or Proceeding, with one counsel selected by
Purchaser and reasonably satisfactory to the indemnifying party; provided,
however, that the Stockholders shall have the same rights of participation
and same right to consent to a settlement provided to an indemnified party
under the foregoing provisions of this Section 12.10(c).
12.11 EXERCISE OF REMEDIES BY INDEMNITEES.
(a) No Purchaser Indemnitee (other than Purchaser or any successor
thereto or assign thereof) shall be permitted to assert any indemnification
claim or exercise any other remedy under this Agreement unless Purchaser (or
any successor thereto or assign thereof) shall have consented to the
assertion of such indemnification claim or the exercise of such other remedy.
(b) No Stockholder Indemnitee (other than the Signing Stockholders
or, in the case of the Identified Stockholders, the Agent or any successor
thereto or assign thereof) shall be permitted to assert any indemnification
claim or exercise any other remedy under this Agreement unless the
Stockholder Indemnitee entitled to indemnification (or any successor thereto
or assign thereof) shall have consented to the assertion of such
indemnification claim or the exercise of such other remedy.
12.12 CLAIMS BETWEEN THE PARTIES NOT INVOLVING THIRD PARTY CLAIMS.
9.
(a) Subject to the terms and limitations set forth in this Section
12, if at any time or from time to time an indemnified party seeks to make
indemnification claims against an indemnifying party for amounts due to such
indemnified party pursuant to Section 12 not arising out of a claim or
proceeding asserted or brought by a third party covered by Section 12.10, it
shall duly deliver to the indemnified party a notice (a "Notice") setting
forth:
(i) the specific representation, warranty or covenant in the
Agreement alleged to have been Breached by the indemnifying party;
(ii) a summary of the facts and circumstances giving rise to
the alleged Breach of such representation, warranty or covenant by the
indemnifying party; and
(iii) a description of, and a reasonable estimate of the total
amount of, the Damages actually incurred or expected to be incurred by the
indemnified party as a result of such alleged Breach.
If a Notice relates to an alleged Breach of a representation or
warranty in this Agreement and such Notice shall not have been delivered to the
indemnifying party on or prior to the Expiration Date (or, if later, the date on
which such representation or warranty expires as stated in Section 12.1(a)),
then such Notice shall not be deemed to have been delivered and shall be of no
force or effect. A Notice by Purchaser or Merger Sub with respect to a claim for
indemnification pursuant to Section 12.2 shall be deemed to have been delivered
to the Identified Stockholders if such Notice is delivered by Purchaser or
Merger Sub to the Agent.
(b) Within twenty (20) days after the delivery of a Notice in
accordance with Section 12.12(a), the indemnifying party may, in its sole
discretion, deliver to the indemnified party who delivered the Notice a
written notice (the "Response Notice") containing (i) a statement
substantially to the effect that the indemnification claim described in such
Notice is not being disputed, (ii) a statement substantially to the effect
that a portion of the dollar amount of Damages set forth in such Notice is
being disputed (specifying the dollar amount of the portion that is not being
disputed) or (iii) a statement substantially to the effect that the entire
dollar amount of Damages set forth in such Notice is being disputed. (Any
portion of the dollar amount of such Damages that is not being disputed shall
be referred to in this Agreement as the "Undisputed Amount," and the
remaining portion of such Damages shall be referred to in this Agreement as
the "Disputed Amount.") If no Response Notice is delivered within twenty (20)
days after the delivery of a Notice to an indemnifying party, then the
indemnifying party shall be deemed not to be disputing the Damages described
in the Notice.
(c) If (i) an indemnifying party is disputing all or any portion of
the dollar amount of the Damages set forth in a Notice, and (ii) within forty
five (45) days after the delivery of a Notice by an indemnified party to an
indemnifying party in accordance with Section 12.12(a), the parties do not
reach agreement with respect to the dispute, then the indemnification claim
or claims described in such Notice shall be referred to an arbitrator chosen
jointly by the indemnified party and the indemnifying party. If the
indemnified party and the indemnifying party do not agree on the selection of
an arbitrator within ten (10) days after the expiration of the forty five
(45) day period referred to in this Section 12.12(c), either the indemnified
party or the indemnifying party may submit the matter in dispute for
resolution
10.
pursuant to a binding arbitration proceeding under Judicial Arbitration &
Mediation Services/Endispute, Inc. ("JAMS"). The venue for such arbitration
proceeding shall be Dallas, Texas. Subject to the terms and limitations set
forth in this Section 12, (i) the arbitrator's fees and other related
expenses of any arbitration under this Agreement (such as expenses for
transcripts of the arbitration proceedings) shall be borne by the parties to
the arbitration in such proportions as shall be determined by the arbitrator,
or if there is no such determination, then such fees and other expenses shall
be borne equally by the parties to the arbitration, (ii) the arbitrator shall
have the authority to make an award specifying the dollar amount (if any)
representing the portion of the Disputed Amount that is to be awarded to the
indemnified party, but shall have no right to grant special, punitive or
exemplary damages or indirect or consequential damages or to grant any form
of equitable relief and (iii) the determination of the arbitrator as to the
dollar amount (if any) representing the portion of the Disputed Amount that
is payable shall be conclusive and binding upon the parties hereto and
judgment may be entered thereon in any court having jurisdiction thereof.
12.13 IDENTIFIED STOCKHOLDERS' AGENT.
(a) The Identified Stockholders, individually and collectively,
hereby irrevocably nominate, constitute and appoint C. Xxxxx Xxxxxxxxx as the
agent and true and lawful representative and attorney-in-fact of the
Identified Stockholders (the "Agent"), with full power of substitution, to
act in the name, place and stead of the Identified Stockholders, and as the
only person authorized to take any action required, authorized or
contemplated by this Section 12, in respect of any claim made pursuant to
Section 12.2 of this Agreement (the "Indemnification Obligations"),
including, without limitation, any settlement, compromise or defense of the
Indemnification Obligations. C. Xxxxx Xxxxxxxxx hereby accepts his
appointment as Agent.
(b) The Identified Stockholders, hereby grant to the Agent full
authority to take or omit to take any action, and execute, deliver,
acknowledge, certify and file on behalf of the Identified Stockholders (in
the name of any or all of the Identified Stockholders or otherwise), any and
all documents, that the Agent may, in his sole discretion, determine to be
necessary, desirable or appropriate, in such forms and containing such
provisions as the Agent may, in his sole discretion, determine to be
appropriate with respect to the Indemnification Obligations. Notwithstanding
anything to the contrary contained in any of the Transactional Agreements:
(i) Purchaser shall be entitled to deal exclusively with the
Agent on all matters relating to the Indemnification Obligations; and
(ii) with respect to the Indemnification Obligations, each
Purchaser Indemnitee shall be entitled to rely conclusively (without further
evidence of any kind whatsoever) on any document executed or purported to be
executed on behalf of any Identified Stockholder by the Agent, and on any
other action taken or purported to be taken on behalf of any Identified
Stockholder by the Agent, as fully binding upon such Identified Stockholder.
(c) The Identified Stockholders, recognize and intend that the power
of attorney granted in Section 12.13(a):
11.
(i) is coupled with an interest and is irrevocable;
(ii) may be delegated by the Agent; and
(iii) shall survive the death, disability or legal incapacity
of each of the Identified Stockholders.
(d) The Agent shall receive and deliver notices on behalf of the
Identified Stockholders and take all such action as he may deem necessary,
appropriate, permitted or advisable to be taken by or on behalf of the
Identified Stockholders under this Section 12 in order to consent to, pay,
contest, arbitrate, litigate or settle any claim or alleged claims asserted
with respect to the Indemnification Obligations, upon receipt of instructions
from a majority of the Identified Stockholders (based on the number of Shares
held by the Identified Stockholders immediately prior to Closing). The Agent
shall not be personally liable to the other Identified Stockholders for any
action taken, suffered or omitted by him in good faith and believed by him to
be authorized by the Identified Stockholders under this Section 12.13.
(e) In acting as the representative of the Identified Stockholders,
the Agent may rely upon, and shall be protected in acting or refraining from
acting upon, an opinion of counsel, certificate of auditors or other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, arbitrator's award, appraisal, bond or other paper or
document reasonably believed by him to be genuine and to have been signed or
presented by the proper party or parties. The Agent may consult with counsel
and any advice of such counsel shall be full and complete authorization and
protection in respect to any action taken or suffered or omitted by him in
such capacity in good faith and in accordance with such opinion of counsel.
The Agent may perform his duties as Agent either directly or by or through
his agents or attorneys and the Agent shall not be responsible to the other
Identified Stockholders for any misconduct or negligence on the part of any
agent or attorney appointed with reasonable care by the Agent hereunder.
(f) Within ten days after receiving notice of the death or
incapacity of the Agent, the Identified Stockholders shall by majority vote
(based on the number of Shares held by the Identified Stockholders
immediately prior to Closing) appoint a successor to fill the vacancy. The
Identified Stockholders may by such majority vote remove the Agent with or
without cause and appoint a successor, provided that notice thereof is given
by the new Agent to each of the other parties hereto. The Agent may resign
if, and only if, he is simultaneously replaced with a substitute Agent. Any
Agent appointed from time to time hereunder who is not also an Identified
Stockholder must be reasonably acceptable to Purchaser. If for any reason
there is no Agent at any time, all references herein to the Agent shall be
deemed to refer to the Identified Stockholders.
(g) The Agent shall serve as such without compensation, but all
expenses incurred by the Agent in connection with the performance of his
duties as Agent shall be borne and paid by the Identified Stockholders pro
rata in accordance with their respective ownership of Shares immediately
prior to Closing.
12.
2. References to "Signing Stockholders" contained in Section 8.20 of the Merger
Agreement shall be deemed to be references to "the Signing Stockholders and the
Identified Stockholders, as the case may be,".
3. The first sentence of Section 13.12 shall be modified by inserting after the
phrase "Xxxxx and its successors and assigns (if any);" the following phrase:
"the Identified Stockholders and their respective personal representatives,
executors, administrators, estates, heirs, successors and assigns (if any);" and
the second sentence shall be modified by inserting after the phrase "Xxxxx;" the
following phrase: "the Identified Stockholders;".
4. Exhibit A to the Merger Agreement shall be revised to add the following:
IDENTIFIED STOCKHOLDERS. "Identified Stockholders" shall mean Xxxxxxx
X. Xxxxxx, C. Xxxxx Xxxxxxxxx and Xxxx X. Xxxxx, Xx.
LETTER AGREEMENT. "Letter Agreement" shall have the meaning specified
in Section 12.2(c).
5. All references in the Merger Agreement to the "Agreement" shall be deemed to
refer to the Merger Agreement as amended by this Amendment. Other than as
specified above, the terms and conditions of the Merger Agreement shall remain
unchanged and in full force and effect.
13.
IN WITNESS THEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date set forth above.
"PURCHASER": METRON TECHNOLOGY B.V.,
a Netherlands corporation
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name:
-------------------------------
Title:
-------------------------------
"MERGER SUB": METRON ACQUISITION SUB, INC.,
a Nevada corporation
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name:
-------------------------------
Title:
-------------------------------
"XXXXX": X.X. XXXXX CO.,
a Nevada corporation
By: /s/ C. Xxxxx Xxxxxxxxx
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
"STOCKHOLDERS": XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
14.
C. XXXXX XXXXXXXXX
/s/ C. Xxxxx Xxxxxxxxx
-------------------------------------
XXXX X. XXXXX, XX.
/s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
XXXXX X. XXXXXXXXX, AS TRUSTEE
OF THE X.X. XXXXX COMPANY
EMPLOYEE STOCK OWNERSHIP
TRUST (AS AMENDED AND
RESTATED, EFFECTIVE MARCH 17,
1997)
/s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
15.
