EXHIBIT 10.33
SUBSCRIPTION AGREEMENT
This Subscription Agreement (this "Agreement"), dated as of
July 31, 2000, is made by Hitachi Maxell, Ltd., a Japanese corporation
(the "Investor"), and Xxxxxx Xxxxxxxxxx Technologies, Inc., a Delaware
corporation (the "Corporation").
R E C I T A L S
A. The Investor desires to subscribe for shares of common stock of the
Corporation. The subscription by the Investor provided for herein is being made
in connection with, and subject to the consummation of the transactions provided
for in, a certain Stock Purchase Agreement among Investor, the Corporation, and
Battery Engineering, Inc., a Massachusetts corporation, dated the same date as
of this Agreement (the "Purchase Agreement").
B. The Corporation is willing to sell, on the terms and subject to the
conditions herein set forth, the Shares (as hereinafter defined) to the
Investor.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Investor and
the Corporation agree as follows:
1. ISSUANCE AND SALE OF STOCK. Subject to the terms and conditions of
this Agreement and on the basis of the representations and warranties set forth
herein, the Corporation agrees to issue and sell to the Investor, and the
Investor agrees to purchase from the Corporation, Three Hundred Thirty Three
Thousand Three Hundred and Thirty Four (333,334) shares (the "Shares") of the
common stock, par value $.001 per share ("Common Stock"), of the Corporation at
the price of Nine Dollars ($9.00) per share, for an aggregate purchase price of
$3,000,006 (the "Purchase Price"); provided, however, that if there occurs,
prior to Closing: (i) any dividend or other distribution of Common Stock to the
present holders of Common Stock, or (ii) any stock split, reverse stock split,
repurchase, combination, share exchange or other transaction affecting the
Common Stock of the Corporation (collectively, "Stock Adjustment Event"), the
aggregate Purchase Price shall remain the same but the number of Shares shall be
appropriately adjusted to reflect any such Stock Adjustment Event. For example,
if there occurs a one (1) for two (2) reverse stock split of Common Stock, the
number of Shares would be reduced from 333,334 to 166,666; if there occurs a two
(2) for one (1) stock split of Common Stock, the number of Shares would be
increased from 333,334 to 666,666. The purchase price shall be paid to the
Corporation by wire transfer delivered by the Investor to the Corporation at the
Closing (as hereinafter defined).
2. THE CLOSING. The consummation of the purchase of the Shares (the
"Closing") shall take place at the offices of Xxxxxxx, Xxxx, Xxxxxxx, Xxxxx &
Goodyear, LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at such other
location as may be agreed to
by the parties) on the same day as the transactions provided for in the Purchase
Agreement. At the Closing:
2.1 The Corporation shall issue and deliver a stock certificate
representing the Shares to the Investor;
2.2 The Investor shall deliver the Purchase Price to the Corporation by
wire transfer of immediately available funds;
2.3 The Corporation and the Investor shall execute the Stockholders
Agreement (as defined in the Purchase Agreement);
2.4 The Corporation's counsel shall deliver to the Investor an opinion
in substantially the form attached as EXHIBIT C to the Purchase Agreement;
2.5 The Corporation shall deliver an Officer's Certificate certifying
that the representations and warranties of the Corporation set forth in Article
4 are true and correct as of the date of Closing; and
2.6 The Investor shall deliver an Officer's Certificate certifying that
the representations and warranties of the Investor set forth in Article 3 are
true and correct as of the date of Closing.
3. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor hereby
represents and warrants to the Corporation as follows:
3.1 AUTHORIZATION AND VALIDITY OF THIS AGREEMENT. The execution,
delivery and performance by the Investor of this Agreement and each other
agreement contemplated herein are within the Investor's corporate powers, have
been duly authorized by all necessary corporate action, do not require from the
stockholders of the Investor any consent or approval that has not been validly
and lawfully obtained, require no authorization, consent, approval, license,
exemption of or filing or registration with any court or governmental
department, commission, board, bureau, agency or instrumentality of government,
do not and will not violate or contravene any legal requirement to which the
Investor may be subject;
3.2 BINDING OBLIGATION. The Investor has full power and authority to
execute this Agreement and to invest in the Shares, this Agreement constitutes
the valid and binding obligation of the Investor and is enforceable against the
Investor in accordance with its terms, except as such enforcement is limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally.
3.3 KNOWLEDGE AND EXPERIENCE. The Investor has such knowledge and
experience in financial, tax and business matters, including substantial
experience in evaluating and investing in common stock and other securities
(including the common stock and other securities of private companies), so as to
enable the Investor to utilize the information referred to in Section 3.5 and
any other information made available to the Investor in order to evaluate the
merits and risks of an investment in the Shares and to make an informed
investment decision with respect thereto.
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3.4 INVESTMENT FOR OWN ACCOUNT. The Investor is acquiring the Shares for
its own account, for investment purposes only and not with a view to, and not
for offer or sale in connection with, any distribution or resale of the Shares.
3.5 ADEQUATE INFORMATION. The Investor has had access to, and the
Corporation has made available, such information which the Investor considers
necessary or appropriate to evaluate the risks and merits of an investment in
the Shares.
3.6 OPPORTUNITY TO QUESTION. The Investor has had the opportunity to
question, and has questioned, to the extent deemed necessary or appropriate,
representatives of the Corporation so as to receive answers and verify
information obtained in the Investor's examination of the Corporation, including
the representations and warranties of the Corporation contained in Article 4 of
this Agreement, the information referred to in Section 3.5 and any other
documents or information that the Investor has reviewed in relation to the
Investor's investment in the Shares. No oral or written representations have
been made or oral or written information furnished to the Investor in connection
with the Investor's acquisition of the Shares which were in any way inconsistent
with the information set forth in the information reviewed by the Investor.
3.7 INDEPENDENT DECISION. The Investor is not relying on the Corporation
with respect to the tax considerations of the Investor relating to its
investment in the Shares. The Investor has relied solely on its own examination
and independent tax advice in making his decision to acquire the Shares.
3.8 FINANCIAL CONDITION. The Investor's financial condition is such that
(i) the Investor is under no present need to dispose of any portion of the
Shares to satisfy any existing or contemplated undertaking or indebtedness and
(ii) the Investor is able to bear the economic risk of investment in the Shares,
including the risk of losing its entire investment and the risk of not being
able to sell or transfer any of the Shares for an indefinite period of time.
3.9 RESTRICTED SECURITIES. The Investor understands that it may be
required to bear the economic risk of investment in the Shares for an indefinite
period of time because the Shares may not, without full compliance with the
registration and prospectus delivery requirements of the Securities Act, be
offered, sold or delivered except in a transaction exempt from, or not subject
to, the registration and prospectus delivery requirements of the Securities Act.
3.10 REGULATION S MATTERS. The Investor hereby certifies that it is not
a "U.S. person" (as defined in Rule 902(k) promulgated by the Securities and
Exchange Commission ("SEC") under the Securities Act, as hereinafter defined).
4. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. The Corporation
represents and warrants to Investor as follows:
4.1 ORGANIZATION AND GOOD STANDING. The Corporation is a corporation,
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Corporation is duly qualified to do business and is in
good standing in each jurisdiction in which such qualification is necessary
under the applicable law as a result of the conduct of its business
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or the ownership of its properties. The Corporation has all necessary power and
authority to execute and deliver this Agreement, to consummate the transactions
contemplated by this Agreement and to perform its obligations under this
Agreement.
4.2 AUTHORITY; AUTHORIZATION; BINDING EFFECT. The Corporation has all
necessary power and authority and has taken all action necessary to execute and
deliver this Agreement and the instruments to be executed and delivered pursuant
hereto, to consummate the transactions contemplated by this Agreement and to
perform its obligations under this Agreement. This Agreement has been duly
executed and delivered by the Corporation and constitutes a legal, valid and
binding obligation of the Corporation, enforceable against the Corporation in
accordance with its terms, except as enforcement may be limited by (i)
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors rights generally and (ii) the discretion of
the appropriate court with respect to specific performance, injunctive relief or
other forms of equitable remedies.
4.3 NO CONFLICTS, VIOLATIONS OR PROCEEDINGS. The execution and delivery
of this Agreement, the consummation of the transactions contemplated by this
Agreement and the performance by the Corporation of its obligations under this
Agreement do not and will not result in (i) a violation of or a conflict with
any provision of the Certificate of Incorporation of the Corporation or other
organizational documents of the Corporation, (ii) a breach of, or a default
under, any term or provision of any contract, agreement, indebtedness,
encumbrance, commitment, license, franchise, permit, authorization or concession
to which the Corporation is a party or (iii) a violation by the Corporation of
any statute, rule, regulation, ordinance, code, order, judgment, writ,
injunction, decree or award. There is no pending or, to the knowledge of the
Corporation, threatened or anticipated legal proceeding against, relating to or
affecting the transactions contemplated by this Agreement.
4.4 NO CONSENTS OR APPROVALS. No consent, approval or authorization of,
or declaration, filing or registration with, any governmental authority or any
other person is required to be made or obtained by the Corporation in connection
with the execution, delivery and performance of this Agreement and the
consummation of the transaction contemplated hereby.
4.5 THE CORPORATION'S CAPITAL STRUCTURE. The authorized capital stock of
the Corporation consists of 100,000,000 shares of Common Stock and 100,000,000
shares of Preferred Stock, $.001 par value per share (the "Preferred Stock"). As
of May 26, 2000: (i) 21,992,523 shares of Common Stock were issued and
outstanding on a fully diluted basis (excluding (A) the shares comprising the
purchase price under the Purchase Agreement; (B) any options or shares of Common
Stock issuable under options to be granted in the future under any employee
stock option plan of the Corporation; and (C) shares of the Common Stock issued
or issuable in connection with the Corporation's profit sharing plan in respect
of 1999), all of which are validly issued, fully paid and non-assessable; (ii)
no shares of Common Stock were held in the treasury of the Corporation or by any
subsidiaries of the Corporation; (iii) 744,928 shares of Common Stock were
reserved for issuance in the future pursuant to stock options granted and
outstanding under the Corporation's stock option plans and (iv) no shares of
Preferred Stock were issued and outstanding. All shares of Common Stock to be
issued to the Investor pursuant to this Agreement, upon issuance pursuant to the
terms and conditions specified in the
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instruments pursuant to which they are issuable, shall be duly authorized,
validly issued, fully paid and non-assessable. There are no obligations,
contingent or otherwise, of the Corporation or any of its subsidiaries to
repurchase, redeem or otherwise acquire any shares of the Corporation's Common
Stock.
4.6 FINANCIAL STATEMENTS. The Corporation has delivered or will deliver
to Seller (a) financial statements of the Corporation for each of the years in
the two-year period ended December 31, 1999 (consisting of a balance sheet,
statement of income, profit and loss and a statement of cash flows), which have
been audited by the Corporation's accountants (the "Audited Financial
Statements") and (b) unaudited interim financial statements of the Corporation
(consisting of a balance sheet and statement of income, profit and loss) for the
three-month period ended March 31, 2000 (the "Interim Financial Statements").
Except as set forth on SCHEDULE 4.6, Audited Financial Statements and the
Interim Financial Statements fairly present the financial condition and the
results of operations of the Corporation as of their respective dates and for
the periods then ended, and the Audited Financial Statements have been prepared
in accordance with GAAP applied on a consistent basis. The books and records of
the Corporation fairly reflect the assets, liabilities and operations of the
Corporation in accordance with GAAP, and the Audited Financial Statements and
the Interim Financial Statements are in conformity therewith, except that the
Interim Financial Statements do not contain footnotes and are subject to
customary year-end adjustments applied on a basis consistent with the
Corporation's past experience. The Audited Financial Statements and the Interim
Financial Statements provide fully for all material fixed and non-contingent
liabilities of the Corporation as defined in accordance with GAAP. There are no
liabilities or obligations of any nature, whether absolute, accrued, contingent,
known, unknown, matured, unmatured or otherwise, or whether or not required to
be disclosed or provided for in financial statements in accordance with GAAP of
the Corporation, except (i) liabilities and obligations reflected or reserved
for in the Audited Financial Statements and the Interim Financial Statements,
(ii) as otherwise specifically disclosed in this Agreement, (iii) liabilities
which in the aggregate will not have a material adverse affect on the business
or financial conditions of Corporation, or (iv) liabilities and obligations
incurred between January 1, 2000 and the Closing Date in the ordinary course of
business of the Corporation, consistent with past practice, and as permitted by
this Agreement.
4.7 COMPLIANCE WITH LAWS. Except as set forth in SCHEDULE 4.7, the
Corporation at all times during the last six (6) years has duly complied in all
material respects with, and is in compliance with, all applicable Governmental
Requirements. Except as set forth in SCHEDULE 4.7, the Corporation has not
received any notice to the effect that, or otherwise been advised that, the
Corporation is not in compliance with any Governmental Requirement.
4.8 LITIGATION. Except as set forth in SCHEDULE 4.8, there is no claim,
legal action, suit, arbitration, governmental authority investigation or other
legal or administrative proceeding, or any order, decree, or judgment pending,
or to the knowledge of the Corporation threatened, against or relating to the
Corporation, its officers, directors or employees, or its properties, assets or
business. Except as set forth in SCHEDULE 4.8, the Corporation knows of no basis
or grounds for any such claim, legal action, suit, arbitration, Governmental
Authority investigation or other legal or administrative Proceeding. None of the
matters disclosed in SCHEDULE 4.8 has or will have a material adverse affect on
the business or financial condition of the Corporation.
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4.9 TAX MATTERS. Except as set forth on SCHEDULE 4.9, the Corporation
has filed all tax returns relating to its business that it was required to file.
All such tax returns were correct and complete in all respects. Except as set
forth on SCHEDULE 4.9, all taxes owed by the Corporation (whether or not shown
on any tax return) prior to the date hereof have been paid in full. The
Corporation has withheld and paid all taxes required to have been withheld and
paid in connection with amounts paid or owing to any employee, independent
contractor, creditor, stockholder or other third party. Except as set forth on
SCHEDULE 4.9, there are no federal, state, local or foreign tax liens upon any
of the properties or assets of the Corporation, and there are no unpaid taxes
which are or could become a lien on the properties or assets of the Corporation,
except for current taxes not yet due and payable.
4.10 NO BROKERS. The Corporation has not entered into and will not enter
into any agreement, arrangement or understanding with any person which will
result in the obligation of the Investor to pay any finder's fee, brokerage
commission or similar payment in connection with the transaction contemplated
hereby.
4.11 REGISTRATION STATEMENT. (a) Subject to Paragraph (b) of this
Section 4.11, the Corporation agrees to deliver to the Investor as soon as
practicable prior to Closing a copy of any Registration Statement on Form S-1
filed by the Corporation under the Securities Act in connection with an initial
public offering of its Common Stock ("IPO").
(b) The Corporation may not file any such Registration Statement prior
to the Closing or conduct an IPO at any time. Accordingly, the Corporation's
obligations under Paragraph (a) of this Section 4.11 are subject to the
Corporation's decision, in its sole discretion, to file such a Registration
Statement.
4.12 MATERIAL MISSTATEMENTS OR OMISSIONS. No representations or
warranties by the Corporation in this Agreement, or in any document, exhibit,
statement, certificate, document or schedule furnished to the Investor pursuant
to this Agreement (including the copy of any Registration Statement delivered
under Section 4.11), or in connection with the transaction contemplated by this
Agreement, contains or will contain any untrue statement of a material fact, or
intentionally omits or will omit to state any material fact necessary to make
the statements or facts contained therein not misleading.
5. CONDITIONS. The Corporation's obligation to issue and sell the Shares
to the Investor is subject to the following conditions:
5.1 All representations and warranties of the Investor contained in this
Agreement shall be true and correct in all material respects at and as of the
date of the Closing, and the Investor shall have performed all covenants
required hereby to be performed by the Investor at or prior to the Closing.
5.2 The transactions provided for in the Purchase Agreement shall have
been consummated; and
5.3 The Investor shall have duly executed and delivered to the
Corporation and the other parties thereto a certain Stockholders Agreement in
the form attached hereto as
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EXHIBIT A, among other things, that restricts the transfer of the Shares (the
"Stockholders Agreement").
6. CONDITIONS. The Investor's obligation to purchase the Shares from the
Corporation is subject to the following conditions:
6.1 All representations and warranties of the Corporation contained in
this Agreement shall be true and correct in all material respects at and as of
the date of the Closing, and the Corporation shall have performed all covenants
required hereby to be performed by the Investor at or prior to the Closing.
6.2 The transactions provided for in the Purchase Agreement shall have
been consummated; and
6.3 The Corporation (and the other parties thereto) shall have duly
executed and delivered to the Investor the Stockholders Agreement.
7. Additional Agreements.
7.1 RESTRICTIONS ON RESALE OR TRANSFER. The Investor will not resell or
otherwise transfer or pledge any or all of the Shares nor any shares of Common
Stock acquired pursuant to the Purchase Agreements except in accordance with
Regulation S promulgated by the SEC, with the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), or any exemption
thereto, with any applicable Blue Sky Laws, and with the Stockholders Agreement.
The Corporation will not register any transfer of the Shares in violation of
this Section 7.1 and will instruct any transfer agent that it may appoint in the
future not to effect any such transfer.
7.2 RESTRICTIVE LEGEND. The certificates from time to time evidencing
the Shares may, at the Corporation's option, bear a legend (together with any
legend required by SEC Rule 903(b)(3)(iii)(B)(3)) which provides that the Shares
may not be transferred unless the Corporation is delivered a legal opinion,
reasonably satisfactory to the Corporation to the effect that such transfer may
be made without compliance with the registration and prospectus delivery
requirements of the Securities Act and applicable Blue Sky Laws. Such legal
opinion shall be given by counsel reasonably satisfactory to the Corporation, at
the Investor's expense.
7.3 FURTHER ACTIONS. The Investor shall take all further actions
necessary to facilitate the issuance of the Shares to the Investor under an
appropriate exemption from registration under the Securities Act and applicable
Blue Sky Laws, including, without limitation, providing the Corporation with
such information as the Corporation may require to complete a Form D and any
related or similar forms or applications required under the Securities Act or
applicable Blue Sky Laws. The Investor agrees to keep confidential any
information contained in any Registration Statement delivered to the Investor
pursuant to Section 4.11.
8. Miscellaneous.
8.1 TERMINATION. This Agreement may be terminated upon ten (10) days
prior written notice at any time prior to Closing without liability of any party
or any other party:
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(i) by mutual written consent of the Corporation and the
Investor;
(ii) by the Corporation, if Closing has not occurred on or before
July 31, 2000 as a result of the nonfulfillment of any of
the conditions to the Corporation's obligation to perform
contained in Article 5 of this Agreement after written
notice of such nonfulfillment and reasonable opportunity to
cure; and
(iii) by the Investor if Closing has not occurred on or before
July 31, 2000 as a result of the nonfulfillment of any of
the conditions to the Investor's obligation to perform
contained in Article 6 of this Agreement after written
notice of such nonfulfillment and reasonable opportunity to
cure.
This Agreement may also be terminated by the Investor on the one hand, or the
Corporation, on the other hand, upon ten (10) days prior written notice if a
non-terminating party has breached any material covenant to be performed by it
pursuant to this Agreement. Termination of this Agreement shall not affect in
any way the continuing obligations of the parties hereto pursuant to Section 8.7
of relating to expenses.
8.2 ASSIGNMENT. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by the Investor or the Corporation on the
one hand, or the Corporation on the other hand, without the prior written
consent of the other party. No assignment of this Agreement by the Corporation
shall relieve the Corporation of any of its obligations hereunder. Subject to
the foregoing, this Agreement shall be binding upon and inure to the benefit of
the Investor, the Corporation and the Corporation and their respective
successors and assigns, and no other Person shall have any right or obligation
under this Agreement.
8.3 NOTICES. Any and all notices, designations, consents, offers,
acceptances or other communications provided for herein (each a "Notice") shall
be given in writing by overnight courier, telegram or telecopy which shall be
addressed, or sent, to the respective addresses as follows (or such other
address as any party may specify to the other parties by Notice):
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If to the Investor, addressed to:
Hitachi Maxell, Ltd.
Attn:_____________
0-00-00, Xxxxxxx, Xxxxxxx-Xx
Xxxxx, 000-0000 Xxxxx
Telephone: 00-0000-0000
Facsimile: 00-0000-0000
With a copy to:
Xxxxxx & Xxxxx, LLP
Attn: Xxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxxxx, Esq.
Akasaka Twin Tower
Xxxx Xxxxx, 00xx Xxxxx
00-00, Xxxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx, Xxxxx 000-0000
Telephone: 00-0-0000-0000
Facsimile: 00-0-0000-0000
If to the Corporation, addressed to:
Xxxxxx Xxxxxxxxxx Technologies, Inc.
Attn: Xxxxxx X. Xxxxxxx
10,000 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx, Xxxx, Xxxxxxx, Xxxxx & Goodyear, LLP
Attn: Xxxxxx X. Xxxxxxx, Xx., Esq.
Xxxx X. Xxxxxxx, Esq.
Xxx X&X Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All Notices shall be deemed effective and received (a) if given by
telecopy, on the next business day after such telecopy is transmitted to the
telecopy number specified above and receipt thereof is confirmed; (b) if given
by overnight courier, on the third business day immediately following the day on
which such Notice is delivered to a reputable overnight courier service; or (c)
if given by telegram, on the next business day after such Notice is delivered at
the address specified above. For purposes of this paragraph, a "business day" is
one on which banks
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are open for normal banking business (excluding Saturdays) in the location of
the notice recipient.
8.4 CHOICE OF LAW. This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the laws of the State of
New York (without reference to the choice of law provisions of New York law)
except with respect to matters of law concerning the internal corporate affairs
of any corporate entity which is a party to or the subject of this Agreement,
and as to those matters the law of the jurisdiction under which the respective
entity was incorporated shall govern.
8.5 AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement, together with all
Exhibits and Schedules hereto and the Purchase Agreement and the Stockholders
Agreement, constitute the entire agreement between the Investor, and the
Corporation pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the Investor and the Corporation. No supplement, modification or
waiver of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any provision of this Agreement shall be
deemed or shall constitute a waiver of any other provision of this Agreement
(whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided in such writing.
8.6 MULTIPLE COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Any party may execute
this Agreement by facsimile signature and the other party shall be entitled to
rely on such facsimile signature as evidence that this Agreement has been duly
executed by such party. Any party executing this Agreement by facsimile
signature shall immediately forward to the other party an original signature
page by overnight mail.
8.7 EXPENSES. The Investor shall pay its own, and the Corporation shall
pay its own, legal, accounting and other expenses incident to the negotiation
and preparation of this Agreement and the consummation of the transactions
contemplated hereby.
8.8 INVALIDITY. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
8.9 TITLES. The titles, captions or headings of the articles and
sections of this Agreement are inserted for convenience of reference only and
are not intended to be a part of or to affect the meaning or interpretation of
this Agreement.
8.10 PUBLICITY. Neither the Investor nor the Corporation shall issue any
press release or make any public statement regarding the transaction
contemplated hereby prior to the Closing date, without the prior approval of the
Corporation, except as may be required by applicable law, in which case the
party required to issue such press release or make such public
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statement will consult with the other party prior to issuing such press release
or making such public statement.
IN WITNESS WHEREOF, the Investor and the Corporation each has executed
this Subscription Agreement as of July 31, 2000.
HITACHI MAXELL, LTD.
By: /s/ Xxxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxx
---------------------------------------
Title: Board Director Under
--------------------------------------
Power of Attorney dated June 21, 2000
XXXXXX XXXXXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxx X. XxXxxxxx
---------------------------------------------
Name: Xxxxx X. XxXxxxxx
-------------------------------------------
Title: Vice President Administration & Secretary
------------------------------------------
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SCHEDULE 4.6
FINANCIAL STATEMENTS
None.
SCHEDULE 4.7
COMPLIANCE WITH LAWS
None.
SCHEDULE 4.8
LITIGATION
1. PENDING LITIGATION.
XXXXXXXX XXXXXX V. XXXXXX XXXXXXXXXX, LTD., Case No. CV0203 (Western
District of New York). Plaintiff is a former employee who in alleging
employment discrimination based on race and gender, alleging diminished
opportunities and failure to promote.
XXXXXXXX XXXXXX V. XXXXXX XXXXXXXXXX, LTD., Complaint No.
7-E-O-00-7903541-E (New York State Division of Human Rights). Complaint
filed alleging termination was in retaliation for filing the
above-referenced lawsuit.
2. THREATENED LITIGATION.
In June 1999, the Corporation received a letter from counsel for
Xxxxxxxxxxx Xxxxxxx threatening litigation based on wrongful termination
and breach of contract theories. Since that time, there have been no
further threats of litigation nor other communications from counsel to Xx.
Xxxxxxx.
SCHEDULE 4.9
TAX MATTERS
None.
