EXHIBIT 3.1.52
ARTICLES OF MERGER
OF
SANM ACQUISITION SUBSIDIARY, INC.
WITH AND INTO
MANU-TRONICS, INC.
UNDER SECTION 180.1105 OF THE
BUSINESS CORPORATION LAW
OF THE STATE OF WISCONSIN
Pursuant to Section 180.1105 of the Business Corporation Law of the
State of Wisconsin, Manu-tronics, Inc., a Wisconsin corporation ("Manu"), hereby
certifies to the following information relating to the merger of SANM
Acquisition Subsidiary, Inc., a Wisconsin corporation ("SANM") with and into
Manu (the "Merger").
I. The name of the merging Wisconsin corporation is:
SANM Acquisition Subsidiary, Inc.
II. The name of the surviving Wisconsin corporation is:
Manu-tronics, Inc.
III. The Agreement and Plan of Merger, dated March 30, 1999 by and
among Sanmina Corporation, a Delaware corporation, SANM and Manu (the "Merger
Agreement"), and adopted by the surviving and the non-surviving corporations is
attached hereto as Exhibit A.
IV. The Agreement setting forth the terms and conditions of the
Merger has been approved by each corporation that is a party to the merger, in
accordance with the provisions of Section 180.1103 of the Wisconsin statutes.
Executed by the surviving corporation on behalf of all parties to the
merger this 30th day of March, 1999, effective as of March 30, 1999.
MANU-TRONICS, INC.
/s/ Roger R. Mayer
------------------------------
Roger R. Mayer, President & CEO
THIS DOCUMENT IS DRAFTED BY:
ROSEANN M. ROTANDARO, ESQ.,
WILSON SONSINI GOODRICH & ROSATI
650 PAGE MILL ROAD, PALO ALTO, CA 94306
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
DATED AS OF MARCH 30, 1999
AMONG
SANMINA CORPORATION
SANM ACQUISITION SUBSIDIARY, INC.
AND
MANU-TRONICS, INC.
TABLE OF CONTENTS
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ARTICLE I THE MERGER.......................................................................... 1
SECTION 1.1. The Merger......................................................... 1
SECTION 1.2. Closing............................................................ 2
SECTION 1.3. Effective Time..................................................... 2
SECTION 1.4. Effects of the Merger.............................................. 2
SECTION 1.5. Certificate of Incorporation and Bylaws............................ 2
SECTION 1.6. Directors.......................................................... 2
SECTION 1.7. Officers........................................................... 2
SECTION 1.8. Effect on Capital Stock............................................ 2
SECTION 1.9. Dissenting Shares.................................................. 4
SECTION 1.10. Exchange of Certificates........................................... 4
SECTION 1.11. Escrow............................................................. 7
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY...................................... 7
SECTION 2.1. Organization, Standing and Corporate Power......................... 7
SECTION 2.2. Subsidiaries....................................................... 8
SECTION 2.3. Capital Structure.................................................. 8
SECTION 2.4. Authority; Noncontravention........................................ 8
SECTION 2.5. Financial Information.............................................. 9
SECTION 2.6. Absence of Certain Changes or Events............................... 10
SECTION 2.7. Litigation......................................................... 11
SECTION 2.8. Contracts.......................................................... 11
SECTION 2.9. Compliance with Laws............................................... 12
SECTION 2.10. Environmental Matters.............................................. 12
SECTION 2.11. Labor Matters...................................................... 14
SECTION 2.12. Absence of Changes in Benefit Plans................................ 14
SECTION 2.13. ERISA Compliance................................................... 15
SECTION 2.14. S Corporation Status............................................... 17
SECTION 2.15. Taxes.............................................................. 17
SECTION 2.16. No Excess Parachute Payments....................................... 17
SECTION 2.17. Title to Properties................................................ 18
SECTION 2.18. Intellectual Property.............................................. 18
SECTION 2.19. Voting Requirements................................................ 19
SECTION 2.20. Brokers; Schedule of Fees and Expenses............................. 19
SECTION 2.21. Accounting Matters................................................. 19
SECTION 2.22. Equipment and Other Personal Property Leases....................... 19
SECTION 2.23. Product and Service Warranties..................................... 19
SECTION 2.24. Orders, Commitments and Returns.................................... 20
SECTION 2.25. Customers.......................................................... 20
SECTION 2.26. Suppliers.......................................................... 20
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TABLE OF CONTENTS
(CONTINUED)
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SECTION 2.27. Inventory.......................................................... 20
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB.................................. 21
SECTION 3.1. Organization, Standing and Corporate Power......................... 21
SECTION 3.2. Capital Structure.................................................. 21
SECTION 3.3. Authority; Noncontravention........................................ 22
SECTION 3.4. SEC Documents...................................................... 23
SECTION 3.5. Absence of Certain Changes or Events............................... 23
SECTION 3.6. Litigation......................................................... 24
SECTION 3.7. Compliance with Laws............................................... 25
SECTION 3.8. Taxes.............................................................. 25
SECTION 3.9. Title to Properties................................................ 25
SECTION 3.10. Voting Requirements................................................ 25
SECTION 3.11. Brokers; Schedule of Fees and Expense.............................. 25
SECTION 3.12. Accounting Matters................................................. 26
SECTION 3.13. Interim Operations of Sub.......................................... 26
ARTICLE IV CONDUCT PRIOR TO THE EFFECTIVE TIME................................................ 26
SECTION 4.1. Conduct of Business by the Company................................. 26
ARTICLE V ADDITIONAL AGREEMENTS............................................................... 28
SECTION 5.1. Registration of Parent Common Stock................................ 28
SECTION 5.2. Access to Information; Confidentiality............................. 28
SECTION 5.3. No Solicitation.................................................... 28
SECTION 5.4. Public Announcements............................................... 29
SECTION 5.5. Letters of the Company's Accountants............................... 29
SECTION 5.6. Letters of Parent's Accountants.................................... 29
SECTION 5.7. Affiliates; Lockup Agreements...................................... 29
SECTION 5.8. Pooling of Interests............................................... 30
SECTION 5.9. Tax Treatment...................................................... 30
SECTION 5.10. FIRPTA............................................................. 30
SECTION 5.11. NMS Listing........................................................ 30
SECTION 5.12. Stop Transfer...................................................... 30
SECTION 5.13. Non-Competition Agreement.......................................... 30
SECTION 5.14. Certain Tax Matters................................................ 30
SECTION 5.15. Reasonable Efforts; Notification................................... 31
SECTION 5.16. Fees and Expenses.................................................. 32
SECTION 5.17. Executive Compensation Matters..................................... 32
SECTION 5.18. Facility Lease..................................................... 32
SECTION 5.19. S Corporation Tax Matters.......................................... 32
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TABLE OF CONTENTS
(CONTINUED)
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ARTICLE VI CONDITIONS PRECEDENT TO THE MERGER................................................. 33
SECTION 6.1. Conditions to Obligations of Each Party to Effect the Merger....... 33
SECTION 6.2. Additional Conditions to Obligation of the Company................. 34
SECTION 6.3. Additional Conditions to Obligations of Parent and Sub............. 34
ARTICLE VII SURVIVAL, ESCROW AND INDEMNIFICATION.............................................. 35
SECTION 7.1. Survival of Representations and Warranties......................... 35
SECTION 7.2. Limitation of Remedies............................................. 39
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER................................................ 39
SECTION 8.1. Termination........................................................ 39
SECTION 8.2. Effect of Termination.............................................. 40
SECTION 8.3. Amendment.......................................................... 40
SECTION 8.4. Extension; Waiver.................................................. 41
ARTICLE IX GENERAL PROVISIONS................................................................. 41
SECTION 9.1. Notices............................................................ 41
SECTION 9.2. Definitions........................................................ 42
SECTION 9.3. Interpretation..................................................... 42
SECTION 9.4. Counterparts....................................................... 42
SECTION 9.5. Entire Agreement; No Third-Party Beneficiaries..................... 42
SECTION 9.6. Governing Law...................................................... 43
SECTION 9.7. Assignment......................................................... 43
SECTION 9.8. Enforcement........................................................ 43
SECTION 9.9. Severability....................................................... 43
Exhibit A: Shareholder Agreement
Exhibit B: Escrow Agreement
Exhibit C: Registration Rights Agreement
Exhibit D: Company Affiliate Agreement
Exhibit E: Parent Affiliate Agreement
Exhibit F: Noncompetition Agreement
Exhibit G: Employment Agreement
Exhibit H: Lease Agreement
Exhibit I: Indemnification Agreement
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AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of March 30, 1999, among Sanmina Corporation, a Delaware
corporation ("Parent"), SANM Acquisition Subsidiary, Inc., a Wisconsin
corporation and a wholly owned subsidiary of Parent ("Sub"), and Manu-tronics,
Inc., a Wisconsin corporation (the "Company").
RECITALS
A. The respective Boards of Directors of Parent, Sub and the
Company, and Parent, acting as the sole shareholder of Sub, have approved the
merger of Sub with and into the Company (the "Merger"), upon the terms and
subject to the conditions set forth in this Agreement, whereby each issued and
outstanding share of common stock, no par value, of the Company ("Company Common
Stock"), other than Company Common Stock owned by Parent, Sub or the Company,
will be converted into the right to receive common stock, par value $.01 per
share, of Parent ("Parent Common Stock").
B. Substantially concurrently herewith and as a condition and
inducement to Parent's willingness to enter into this Agreement, Parent and
certain shareholders of the Company have entered into a Shareholder Agreement in
the form attached hereto as Exhibit A (the "Shareholder Agreement").
C. Parent, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
D. For Federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section 368 of
the Internal Revenue Code of 1986, as amended (the "Code").
E. For financial accounting purposes, it is intended that the
Merger will be accounted for as a pooling of interests transaction.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties hereto agree
as follows:
ARTICLE I
THE MERGER
SECTION 1.1. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance wish the Business
Corporation Law of the State of Wisconsin (the "Wisconsin Law"), Sub shall be
merged with and into the Company at the Effective Time (as defined in Section
1.3). Following the Merger, the separate corporate existence of Sub shall cease
and the Company shall continue as the surviving corporation (the "Surviving
Corporation") and shall succeed to and assume all the rights and obligations of
Sub in accordance with the Wisconsin Law.
At the election of Parent, any direct or indirect wholly owned subsidiary (as
defined in Section 9.2) of Parent may be substituted for Sub as a constituent
corporation in the Merger. In such event, the parties hereto agree to execute an
appropriate amendment to this Agreement in order to reflect such substitution.
SECTION 1.2. Closing. The closing of the Merger (the "Closing")
will take place at 10:00 a.m. on a date to be specified by the parties, which
shall be no later than the second business day after satisfaction or waiver of
the conditions set forth in Article VI (the "Closing Date"), at the offices of
O'Connor & Willems, S.C., 6633 Green Bay Road, Kenosha, Wisconsin 53142, unless
another date or place is agreed to in writing by the parties hereto.
SECTION 1.3. Effective Time. Subject to the provisions of this
Agreement, as soon as practicable on or after the Closing Date, the parties
shall file articles of merger or other appropriate documents (in any such case,
the "Articles of Merger") executed in accordance with the relevant provisions of
the Wisconsin Law and shall make all other filings or recordings required under
the Wisconsin Law. The Merger shall become effective at such time as the
Articles of Merger are duly filed with the Wisconsin Department of Financial
Institutions, or at such other time as Parent and the Company shall agree should
be specified in the Articles of Merger (the time the Merger becomes effective
being the "Effective Time").
SECTION 1.4. Effects of the Merger. The Merger shall have the
effects set forth in Section 180.1106 of the Wisconsin Law.
SECTION 1.5. Certificate of Incorporation and Bylaws.
(a) The Articles of Incorporation of Sub, as in effect
immediately prior to the Effective Time and as attached hereto, shall be the
Articles of Incorporation of the Surviving Corporation until thereafter changed
or amended as provided therein or by applicable law.
(b) The Bylaws of Sub, as in effect immediately prior to
the Effective Time, shall be the Bylaws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
SECTION 1.6. Directors. The directors of Sub immediately prior to
the Effective Time shall be the directors of the Surviving Corporation, until
the earlier of their resignation or removal or until their respective successors
are duly elected and qualified, as the case may be.
SECTION 1.7. Officers. The officers of the Company immediately
prior to the Effective Time shall be the officers of the Surviving Corporation,
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
SECTION 1.8. Effect on Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
shares of Company Common Stock or any shares of capital stock of Sub:
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(a) Capital Stock of Sub. Each issued and outstanding
share of capital stock of Sub shall be converted into and become one validly
issued, fully paid and nonassessable share of common stock, with no par value,
of the Surviving Corporation.
(b) Cancellation of Treasury Stock and Parent-Owned
Stock. Each share of Company Common Stock that is owned by the Company and each
share of Company Common Stock that is owned by Parent or Sub shall automatically
be canceled and retired and shall cease to exist and no Parent Common Stock or
other consideration shall be delivered in exchange therefor.
(c) Conversion of Company Common Stock. Subject to
Section 1.10(e) and 1.11, each issued and outstanding share of Company Common
Stock (other than shares to be canceled in accordance with Section 1.8(b)) shall
be converted into the right to receive a number of fully paid and nonassessable
shares of Parent Common Stock equal to the quotient of (X) divided by (Y), where
(X) equals 750,000 (the "Consideration Common") and (Y) equals the number of
issued and outstanding shares of Company Common Stock at the Effective Tune
(such quotient being hereafter referred to as the "Exchange Ratio"). The
Exchange Ratio will be subject to adjustment as follows: In the event that at
the Effective Time the Consideration Common Value (as defined below) is less
than $40,500,000, the number of Consideration Common shares will be increased to
an amount equal to $40,500,000 divided by the Average Pre-Closing Price (as
defined below) up to a maximum aggregate of 900,000 Consideration Common shares.
In the event that at the Effective Time, the Consideration Common Value is
greater than $51,000,000, the number of Consideration Common shares will be
decreased to an amount equal to $51,000,000 divided by the Average Pre-Closing
Price subject to a minimum aggregate of 600,000 Consideration Common shares. For
purposes hereof, "Consideration Common Value" shall be equal to the number of
Consideration Common shares multiplied by the Average Pre-Closing Price (as
defined below) and "Average Pre-Closing Price" shall be equal to the average of
the last reported sale price of Sanmina Common Stock on the NASDAQ National
Market on the ten consecutive trading days ending on the trading day prior to
the date as of which the Consideration Common Value is being determined.
As of the Effective Time, all such shares of Company Common Stock shall
no longer be outstanding and shall automatically be canceled and retired and
shall cease to exist, and each holder of a certificate which immediately prior
to the Effective Time represented any such shares of Company Common Stock shall
cease to have any rights with respect thereto, except the right to receive
shares of Parent Common Stock and any cash in lieu of fractional shares of
Parent Common Stock to be issued or paid in consideration therefor upon
surrender of such certificate in accordance with Section 1.10, without interest,
and the right to receive the dividend in accordance with Section 4.1(a).
Notwithstanding the foregoing, if between the date of this Agreement and the
Effective Time the outstanding shares of Parent Common Stock shall have been
changed into a different number of shares or a different class, by reason of any
stock dividend, subdivision, reclassification, recapitalization, split,
combination or exchange of shares or if Parent pays an extraordinary dividend,
the Exchange Ratio shall be appropriately adjusted to reflect such stock
dividend, subdivision, reclassification, recapitalization, split, combination or
exchange or extraordinary dividend.
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(d) Stock Option Plans. Company does not have, as of the
date of this Agreement, and will not at the Effective Time have any stock
option, stock purchase or other plan providing for the issuance of stock,
options, stock purchase rights or similar rights to employees, directors,
consultants or other parties.
SECTION 1.9. Dissenting Shares.
(a) Notwithstanding any provision of this Agreement to
the contrary, the shares of any holder of Company Common Stock who has demanded
and perfected appraisal rights for such shares in accordance with the Wisconsin
Law and who, as of the Effective Time, has not effectively withdrawn or lost
such appraisal rights ("Dissenting Shares"), shall not be converted into or
represent a right to receive Parent Common Stock pursuant to Section 1.8(c) but
the holder thereof shall only be entitled to such rights as are granted by the
Wisconsin Law.
(b) Notwithstanding the provisions of subsection (a), if
any holder of shares of Company Common Stock who demands appraisal of such
shares under the Wisconsin Law shall effectively withdraw the right to
appraisal, then, as of the later of the Effective Time and the occurrence of
such event, such holder's shares shall automatically be converted into and
represent only the right to receive Parent Common Stock, without interest
thereon, upon surrender of the certificate representing such shares.
(c) The Company shall give Parent (i) prompt notice of
any written demands for appraisal of any shares of Company Common Stock,
withdrawals of such demands, and any other instruments served pursuant to the
Wisconsin Law and received by the Company which relate to any such demand for
appraisal and (ii) the opportunity to participate in all negotiations and
proceedings which take place prior to the Effective Time with respect to demands
for appraisal under the Wisconsin Law. The Company shall not, except with the
prior written consent of Parent, voluntarily make any payment with respect to
any demands for appraisal of Company Common Stock or offer to settle or settle
any such demands.
SECTION 1.10. Exchange of Certificates.
(a) Exchange Agent. As of the Effective Tune, Parent
shall deposit with Norwest Bank Minnesota, N.A. or such other bank or trust
company as may be designated by Parent (the "Exchange Agent"), for the benefit
of the holders of sham of Company Common Stock, for exchange in accordance with
this Article I, through the Exchange Agent, certificates representing the shares
of Parent Common Stock (such share of Parent Common Stock, together with say
dividends or distributions with respect thereto with a record date after the
Effective Tune sad any each payments in lieu of any fractional shares of Parent
Common Stock, being hereinafter referred to as the "Exchange Fund") issuable
pursuant to Section 1.8 in exchange for outstanding shares of Company Common
Stock, other than the shares of Company Common Stock that will be deposited in
escrow pursuant to Section 1.11.
(b) Exchange Procedures. As soon as reasonably
practicable after the Effective Time, Parent shall cause the Exchange Agent to
mail to each holder of record of a certificate or
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certificates which immediately prior to the Effective Time represented
outstanding share of Company Common Stock (the "Certificates") which shares were
converted into the right to receive shares of Parent Common Stock pursuant to
Section 1.8(c), (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon delivery of the Certificates to the Exchange Agent and shall be in
such form and have such other provisions as Parent may reasonably specify) and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing shares of Parent Common Stock. Upon
surrender of a Certificate for cancellation to the Exchange Agent, together with
such letter of transmittal, duly executed, and such other documents as may
reasonably be required by the Exchange Agent, the holder of such Certificate
shall be entitled to receive in exchange therefor a certificate representing
that number of whole shares of Parent Common Stock which such holder has the
right to receive pursuant to the provisions of Section 1.8 after taking into
account all the shares of Company Common Stock then held by such holder under
all such Certificates so surrendered, cash in lieu of fractional shares of
Parent Common Stock to which such holder is entitled pursuant to Section 1.10(e)
and any dividends or other distributions to which such holder is entitled
pursuant to Section 1.10(c), and the Certificate so surrendered shall forthwith
be canceled. In the event of a transfer of ownership of Company Common Stock
which is not registered in the transfer records of the Company, a certificate
representing the proper number of shares of Parent Common Stock may be issued to
a person other than the person in whose name the Certificate so surrendered is
registered, if, upon presentation to the Exchange Agent, such Certificate shall
be properly endorsed or otherwise be in proper form for transfer and the person
requesting such issuance shall pay any transfer or other taxes required by
reason of the issuance of shares of Parent Common Stock to a person other than
the registered holder of such Certificate or establish to the satisfaction of
Parent that such tax has been paid or is not applicable. Until surrendered as
contemplated by this Section 1.10(b), each Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive upon ach
surrender the certificate representing shares of Parent Common Stock, cash in
lieu of any fractional shares of Parent Common Stock as contemplated by Section
1.10(e) and any dividends or other distributions to which such holder is
entitled pursuant to Section 1.10(c). No interest will be paid or will accrue on
any cash payable pursuant to Sections 1.10(c) or 1.10(e).
(c) Distributions with Respect to Unexchanged Shares. No
dividends or other distributions with respect to Parent Common Stock with a
record date after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the shares of Parent Common Stock
represented thereby and no cash payment in lieu of fractional shams shall be
paid to any such holder pursuant to Section 1.10(e) until the holder of record
of such Certificate shall surrender such Certificate. Following surrender of any
such Certificate, there shall be paid to the record holder of the certificate
representing whole shares of Parent Common Stock issued in exchange therefor,
without interest, (i) at the time of such surrender, the amount of any cash
payable in lieu of a fractional share of Parent Common Stock to which such
holder is entitled pursuant to Section 1.10(e) and the amount of dividends or
other distributions with a record date after the Effective Time theretofore paid
with respect to such whole shares of Parent Common Stock, and (ii) at the
appropriate payment date, the amount of dividends or other distribution with a
record date after the
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Effective Time but prior to such surrender and a payment date subsequent to such
surrender payable with respect to such whole shares of Parent Common Stock.
(d) No Further Ownership Rights in Company Common Stock.
All shares of Parent Common Stock issued upon the surrender for exchange of
shares of Company Common Stock in accordance with the terms hereof (including
any cash paid pursuant to Section 1.10(c) or 1.10(e)) shall be deemed to have
been issued in full satisfaction of all rights pertaining to such shares of
Company Common Stock, subject, however, to the Surviving Corporation's
obligation to pay any dividends or make any other distributions with a record
date prior to the Effective Time which may have been declared or made by the
Company on such shares of Company Common Stock in accordance with the terms of
this Agreement or prior to the date of this Agreement and which remain unpaid at
the Effective Time, and there shall be no further registration of transfers on
the stock transfer books of the Surviving Corporation of the shares of Company
Common Stock which were outstanding immediately prior to the Effective Time. If,
after the Effective Time, Certificates are presented to the Surviving
Corporation or the Exchange Agent for any reason, they shall be canceled and
exchanged as provided in this Section 1.10.
(e) No Fractional Shares.
(i) No certificates or scrip representing
fractional shares of Parent Common Stock shall be issued upon the surrender for
exchange of Certificates, and such fractional share interests will not entitle
the owner thereof to vote or to any rights of a shareholder of parent.
(ii) Notwithstanding any other provision of this
Agreement, each holder of shares of Company Common Stock exchanged pursuant to
the Merger who would otherwise have been entitled to receive a fraction of a
share of Parent Common Stock (after taking into account all Certificates
delivered by such holder) shall receive, in lieu thereof, cash (without
interest) in an amount, less the amount of any withholding taxes which may be
required thereon, equal to such fractional part of a share of Parent Common
Stock multiplied by the per share closing price of Parent Common Stock on the
Closing Date, as such price is reported on the Nasdaq Stock Market Nations
Market (as reported by The Wall Street Journal, or, if not reported thereby, any
other authoritative source).
(f) Termination of Exchange Fund. Any portion of the
Exchange Fund which remains undistributed to the holders of the Certificates for
six months after the Effective Time shall be delivered to Parent upon demand,
and any holders of the Certificates who have not therefore complied with this
Article I shall thereafter look only to Parent for payment of their claim for
Parent Common Stock, any cash in lieu of fractional shares of Parent Common
Stock and any dividends or distributions with respect to Parent Common Stock.
(g) No Liability. None of Parent, Sub, the Company or the
Exchange Agent shall be liable to any person in respect of any shares of Parent
Common Stock (or dividends or distributions with respect thereto) or cash from
the Exchange Fund in each case delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law.
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(h) Investment of Exchange Fund. The Exchange Agent shall
invest any cash included in the Exchange Fund, as directed by Parent, on a daily
basis. Any interest and other income resulting from such investments shall be
paid to Parent.
(i) Lost Certificates. If any Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by parent, the posting by such person of a bond in such reasonable
amount as the Surviving Corporation may direct as indemnity against any claim
that any be made against it with respect to such Certificate, the Exchange Agent
will issue in exchange for such lost, stolen or destroyed Certificate the shares
of Parent Common Stock and any cash in lieu of fractional shares, and unpaid
dividends and distributions can shares of Parent Common Stock deliverable in
respect thereof, pursuant to this Agreement.
SECTION 1.11. Escrow. At the Closing, Parent shall withhold from
the Consideration Common and deliver to the Norwest Bank Minnesota, N.A. as
Escrow Agent (in its capacity as Escrow Agent, the "Escrow Agent"), pursuant to
the terms of an Escrow Agreement among Parent, Roger R. Mayer (the "Shareholder
Agent") and the Escrow Agent substantially in the form of Exhibit B hereto (the
"Escrow Agreement"), 10% of the aggregate Consideration Common (such amount,
together with dividends or other distributions and earnings thereon, being
referred to herein as the "Escrow Amount"), which Escrow Amount shall be held
and disbursed in accordance with the terms of the Escrow Agreement. The Escrow
Amount shall be available to compensate Parent and its affiliates for any
claims, losses, damages, deficiencies, costs and expenses, including reasonable
attorneys' fees and expenses, incurred by parent, its officers, directors or
affiliates (including the Surviving Corporation) in accordance with the
indemnification provisions of Article VII of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the disclosure schedule delivered by the Company
to Parent prior to the execution of this Agreement (the "Company Disclosure
Schedule"), the Company represents and warrants to Parent and Sub as follows:
SECTION 2.1. Organization, Standing and Corporate Power. The
Company and each of its subsidiaries (as defined in Section 9.2) is a
corporation duly organized, validly exiting and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite corporate power
and authority to carry on its business as now being conducted. The Company and
each of its subsidiaries is duly qualified or licensed to do business and is in
good standing in each jurisdiction in which the nature of its business or the
ownership, leasing or operation of its properties makes such qualification or
licensing necessary, other than in any such jurisdiction where the failure to be
so qualified or licensed individually or in the aggregate would not have a
material adverse effect (as defined in Section 9.2) on the Company. The Company
has delivered to Parent complete and correct copies of the Articles of
Incorporation and Bylaws, in each use as amended to the date hereof, of the
Company and of each of its subsidiaries.
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SECTION 2.2. Subsidiaries. Except as set forth in Section 2.2 of
the Company Disclosure Schedule, the Company has no subsidiaries and does not
own, directly or indirectly, beneficially or of record, any shares of capital
stock or other security of any other entity or any other investment in any other
entity.
SECTION 2.3. Capital Structure. The authorized capital stock of
the Company consists of 2,000 shares of Company Common Stock, no per value. At
the close of business on the date immediately preceding the date of this
Agreement, (a) 1,938 shares of Company Common stock were issued and outstanding,
(b) no shares of Company Common Stock were held by the Company in its treasury
and (c) no shares of Company Common Stock were reserved for issuance pursuant to
stock option, stock purchase or similar plans. The holders of record and
beneficial owners of all of the issued and outstanding shares of Company Common
Stock are set forth on Section 2.3 of the Company Disclosure Schedule. Except as
set forth above, at the close of business on the date immediately preceding the
date of this Agreement, no shares of capital stock or other voting securities of
the Company were issued, reserved for issuance or outstanding. All outstanding
shares of capital stock of the Company are duly authorized, validly issued,
fully paid and nonassessable and not subject to preemptive rights. There are no
bonds, debentures, notes or other indebtedness of the Company having the right
to vote (or convertible into securities having the right to vote) on any matters
on which shareholders of the Company may vote. There are no securities, options,
warrants, calls, rights, commitments, agreements, arrangements or undertakings
of any kind to which the Company is a party, or by which it is bound, obligating
the Company to issue, deliver or sell, or cause to be issued, delivered or sold,
additional shares of capital stock or other voting securities of the Company or
obligating the Company to issue, grant, extend or enter into any such security,
option, warrant, call, right, commitment, agreement, arrangement or undertaking.
There are not any outstanding contractual obligations of the Company to
repurchase, redeem or otherwise acquire any shares of capital stock or other
securities of the Company. There are no shareholder agreements, voting trusts or
other agreements or understandings to which the Company is a party or by which
it is bound relating to the voting of any shares of capital stock of the
Company.
All of the outstanding capital stock of the Company's subsidiaries is
owned by the Company, directly or indirectly, free and clear of any pledge,
claim, lien, charge, encumbrance or security interest of any kind or nature
whatsoever (collectively, "Liens") or any other limitation or restriction
(including any restriction on the right to vote or sell the same, except as may
be provided as a matter of law). There are no securities of the Company or its
subsidiaries convertible into or exchangeable for, no options or other rights to
acquire from the Company or its subsidiaries, and no other contract,
understanding, arrangement or obligation (whether or not contingent) providing
for the issuance or sale, directly or indirectly, of any capital stock or other
ownership interests in, or any other securities of, any subsidiary of the
Company. There are no outstanding contractual obligations of the Company or its
subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares
of capital stock or other ownership interests in any subsidiary of the Company.
SECTION 2.4. Authority; Noncontravention. The Company has the
requisite corporate power and authority to enter into this Agreement and,
subject to approval of this Agreement by the holders of a majority of the
outstanding shares of Company Common Stock, to consummate the
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transactions contemplated by this Agreement. The execution and delivery of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of the Company, subject, in the case of this
Agreement, to approval of this Agreement by the holders of a majority of the
outstanding shares of Company Common Stock. This Agreement has been duly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated by this Agreement and compliance
with the provisions of this Agreement will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to loss of a material benefit under, or result in the creation
of any Lien in or upon any of the properties or assets of the Company under any
provision of (a) the Articles of Incorporation or Bylaws of the Company, (b) any
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise or license applicable to
the Company or its properties or assets except the two (2) InvestorsBank
Commitments and Loan Agreements both dated September 22, 1998 and the Bank One
Wisconsin f/k/a Bank One, Milwaukee, National Association, Second Amended and
Restated Loan and Security Agreement dated June 29, 1998 or (c), subject to the
governmental filings and other matters referred to in the following sentence,
any (i) statute, law, ordinance, rule or regulation or (ii) judgment, order or
decree applicable to the Company or its properties or assets, other than, in the
case of clause (b) and clause (c)(i), any such conflicts, violations, defaults,
rights or Liens that individually or in the aggregate would not (x) have a
material adverse effect on the Company, (y) impair in any material respect the
ability of the Company to perform its obligations under this Agreement, or (z)
prevent or materially delay the consummation of any of the transactions
contemplated by this Agreement. No consent, approval, order or authorization of,
or registration, declaration or filing with, any third party, including any
Federal, state or local government or any court, administrative agency or
commission or other governmental authority or agency, domestic or foreign (a
Governmental Entity"), is required by or with respect to the Company in
connection with the execution and delivery of this Agreement by the Company or
the consummation by the Company of the transactions contemplated by this
Agreement, except for (1) the filing of a Premerger Notification and report form
by the Company under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), (2) the filing of the Articles of Merger with the
Wisconsin Secretary of State and appropriate documents with the relevant
authorities of other states in which the Company is qualified to do business and
(3) such other consents, approvals, orders, authorizations, registrations,
declarations and filings the failure of which to be obtained or made would not,
individually or in the aggregate, have a material adverse effect on the Company
or prevent or materially delay the consummation of any of the transactions
contemplated by this Agreement.
SECTION 2.5. Financial Information.
(a) The Company has furnished Parent with a copy of (i)
the unaudited balance sheet of the Company as of December 31, 1998, and the
related unaudited statements of income and cash flows for the 3 month period
then ended (together with any notes thereto, the "Interim
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Financials"), and (ii) the audited balance sheets of the Company as of September
26, 1998, 1997 and 1996 and the related audited statements of operations,
shareholders' equity and cash flows for the fiscal years then ended together
with any notes thereto (collectively, the "Annual Financials"). Interim
Financials and the Annual Financials (including, any related note to arch
statements) (i) have been prepared in accordance with GAAP applied on a
consistent basis throughout the period involved, except to the extent required
by change in GAAP and (ii) fairly and accurately present the financial position
of the Company as of the respective dates thereof and the results of operations
and cash flows of the Company for the periods indicated.
(b) Except as and to the extent set forth in the balance
sheet included in the Interim Financials or except as disclosed in the Company
Disclosure Schedule, the Company does not have any liabilities or obligations of
any nature (whether accrued, absolute, contingent or otherwise) that would be
required to be reflected on, or reserved against in, a balance sheet of the
Company or in the notes thereto, prepared in accordance with GAAP, except for
liabilities or obligations incurred in the ordinary course of business since
December 31, 1998, none of which is a liability resulting from breach of
contract, breach of warranty, tort, infringement, claim or lawsuit.
SECTION 2.6. Absence of Certain Changes or Events. Since the date
of the Interim Financials, the Company has conducted its business only in the
ordinary course consistent with past practice, and there has not been:
(a) any material adverse change (as defined in Section
9.2) in the company or any of its subsidiaries;
(b) except as disclosed in Section 2.6(b) of the Company
Disclosure Schedule or except as set forth in Section 4.1(a) of this Agreement
any declaration, setting aside or payment of any dividend or other distribution
(whether in cash, stock or property) with respect to any of the Company's
capital stock;
(c) any split, combination or reclassification of any of
the Company's capital stock or any issuance or the authorization of any issuance
of any other securities in respect of, in lieu of or in substitution for shares
of the Company's capital stock;
(d) (x) any granting by the Company or any of its
subsidiaries to any officer of the Company or any of its subsidiaries of any
increase in compensation, except in the ordinary course of business consistent
with prior practice, (y) any granting by the Company or any of its subsidiaries
to any officer of any increase in severance or termination pay or (z) any entry
by the Company or any of its subsidiaries into any employment, severance or
termination agreement with any officer;
(e) any damage, destruction or loans, whether or not
covered by insurance, that individually or in the aggregate would have a
material adverse effect on the Company or any of its subsidiaries;
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(f) any change in accounting methods, principles or
practices by the Company materially affecting its assets, liabilities or
business, except insofar as may have been required by a change in generally
accepted accounting principles;
(g) any tax election that individually or in the
aggregate would have a material adverse effect an the Company or any of its tax
attributes or any settlement or compromise of any material income tax liability;
(h) any incurrence of any material obligation or
liability (whether absolute, accrued, contingent or otherwise and whether due or
to become due), except items incurred in the ordinary course of business and
conduct with past practice;
(i) any write-down of the value of any of the Inventory
(as defined herein) of the Company or of any of its subsidiaries, except for
immaterial write-downs and write-offs made in the ordinary course of business,
consistent with past practice and at a rate no greater than during the twelve
(12) months ended December 31, 1998;
(j) any cancellation of any debts or claims, or waiver of
any rights, of substantial value;
(k) any sale, transfer, conveyance, encumbrance or grant
of any security interest in any of the Company's assets (whether real, personal
or mixed, tangible or intangible), except in the ordinary course of business and
consistent with past practice;
(l) except capital expenditures in connection with the
Company's facility expansion project as disclosed in Section 2.6(l) to the
Company's Disclosure Schedule, any capital expenditure or commitment in excess
of $100,000 in the aggregate for replacements or additions to property, plant,
equipment or intangible capital assets of the Company; or
(m) any agreement, whether in writing or otherwise, to
take any action described in this Section 2.6.
SECTION 2.7. Litigation. There is no suit, action or proceeding
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries that individually or in the aggregate would
have a material adverse effect on the Company, nor is there any judgment,
decree, injunction, rule or order of any Governmental Entity or arbitrator
outstanding against, or, to the knowledge of the Company, investigation by any
Governmental Entity involving, the Company or any of its subsidiaries that
individually or in the aggregate would have a material adverse effect on the
Company.
SECTION 2.8. Contracts. Section 2.8 of the Company Disclosure
Schedule sets forth a list of the Company's material contracts. Neither the
Company nor any of its subsidiaries is in violation of or in default under (nor
does there exist any condition which upon the passage of time or the giving of
notice or both would cause such a violation of or default under) any lease,
permit, concession, franchise, license or any other contract, agreement,
arrangement or understanding to
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which it is a party or by which it or any of its properties or assets is bound,
except for violations or defaults that individually or in the aggregate would
not have a material adverse effect on the Company. The Company has not entered
into any contract, agreement arrangement or understanding with any affiliate of
the Company.
SECTION 2.9. Compliance with Laws. The Company and each of its
subsidiaries is in compliance with all applicable statutes, laws, ordinances,
regulations, rules, judgments, decrees and orders of any Governmental Entity
(collectively, "Legal Provisions") applicable to its business or operations,
except for instances of possible noncompliance that, individually or in the
aggregate, would not have a material adverse effect on the Company or prevent or
materially delay the consummation of the Merger. The Company and each of its
subsidiaries has in effect all Federal, state, local and foreign governmental
approvals, authorizations, certificates, filings, franchises, licenses, notices,
permits and rights, including all authorizations under Environmental Laws (as
hereinafter defined) ("Permits"), necessary for it to own, lease or operate its
properties and assets and to carry on its business as now conducted, and there
has occurred no default under, or violation of any such Permit, except for the
lack of Permits and for defaults under, or violations of Permits which lack,
default or violation individually or in the aggregate would not have a material
adverts effect on the Company. Except as disclosed in the Company Disclosure
Schedule, the Company has not received any notice or other communication from
any Governmental Entity alleging any violation of any Legal Provision by the
Company.
SECTION 2.10. Environmental Matters. For purposes of this
Agreement, the following terms shall have the meanings ascribed to them below:
(a) Definitions:
(i) "Hazardous Material" is any material or
substance that is prohibited or regulated by any Environmental Law or that has
been designated by any Governmental Authority to be radioactive, toxic,
hazardous or otherwise a danger to health, reproduction or the environment.
(ii) "Governmental Authority" is any local,
state, provincial, federal, or international governmental authority or agency
which has had or now has jurisdiction over any portion of the subject matter of
this Agreement, any Business Facility or the Company.
(iii) "Business Facility" is any property
including the land, the improvements thereon, the groundwater thereunder and the
surface water thereon, that is or at any time has been owned, operated,
occupied, controlled or leased by the Company in connection with the operation
of its business.
(iv) "Disposal Site" is a landfill, disposal
agent, waste hauler or recycler of Hazardous Materials.
(v) "Environmental Laws" are all applicable
laws, rules, regulations, orders, treaties, statutes, and codes promulgated by
any Governmental Authority which prohibit, regulate or control any Hazardous
Material or any Hazardous Material Activity, including, without
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limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, the Resource Recovery and Conservation Act of 1976, the
Federal Water Pollution Control Act, the Clean Air Act, the Hazardous Materials
Transportation Act, the Clean Water Act, comparable laws, rules, regulations,
ordinances, orders, treaties, statutes, and codes of other Governmental
Authorities, the regulations promulgated pursuant to any of the foregoing, and
all amendments and modifications of any of the foregoing, all as amended to
date.
(vi) "Hazardous Materials Activity" is the
transportation, transfer, recycling, storage, use, treatment, manufacture,
removal, remediation, release, exposure of others to, sale, or distribution of
any Hazardous Material or any product containing a Hazardous Material.
(vii) "Environmental Permit" is any approval,
permit, license, clearance or consent required to be obtained from any private
person or any Governmental Authority with respect to a Hazardous Materials
Activity which is or was conducted by the Company. Except a set forth in the
Company Disclosure Schedule, the Company hereby represents and warrants to
Sanmina that:
(b) Condition of Property: As of the Closing, except in
compliance with Environmental Laws in a manner that could not reasonably be
expected to subject the Company to liability, to the knowledge of the Company
after reasonable inquiry, no Hazardous Materials are present on any Business
Facility currently owned, operated, occupied, controlled or leased by the
Company or were present on any other Business Facility at the time it ceased to
be owned, operated, occupied, controlled or leased by the Company. Except as set
forth in Section 2.10(a) of the Company Disclosure Schedule, there are no
underground storage tanks, asbestos which is friable or likely to become friable
or PCBs present on any Business Facility currently owned, operated, occupied,
controlled or leased by the Company or as a consequence of the acts of the
Company or its agents.
(c) Hazardous Materials Activities: The Company has
conducted all Hazardous Material Activities relating to its business in
compliance in all material respects with all applicable Environmental Laws. The
Hazardous Materials Activities of the Company prior to the Closing have not
resulted in the exposure of any person to a Hazardous Material in a manner which
has caused or could reasonably be expected to cause an adverse health effect to
any such person.
(d) Permits: Section 2.10(d) of the Company Disclosure
Schedule accurately describes all of the Environmental Permits currently held by
the Company and relating to its business and the listed Environmental Permits
are all of the Environmental Permits necessary for the continued conduct of any
Hazardous Material Activity of the Company relating to its business as such
activities are currently being conducted. All such Environmental Permits are
valid and in full force and effect. The Company has complied in all material
respects with all covenants and conditions of any Environmental Permit which is
or has been in force with respect to its Hazardous Materials Activities. No
circumstances exist which could cause any Environmental Permit to be revoked,
modified, or rendered non-renewable upon payment of the permit fee. All
Environmental Permits other consent and clearances required by any Environmental
Law or any agreement to which the Company is bound as a condition to the
performance and enforcement of this Agreement, have been obtained or will be
obtained prior to the Closing at no cost to Sanmina.
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(e) Environmental Litigation: Except as set forth in
Section 2.10(e) of the Company Disclosure Schedule, no action, proceeding,
revocation proceeding, amendment procedure, writ, injunction or claim is
pending, or to the best of the Company's knowledge, threatened, concerning or
relating to any Environmental Permit or any Hazardous Materials Activity of the
Company relating to its business, or any Business Facility.
(f) Offsite Hazardous Material Disposal: The Company has
transferred or released Hazardous Materials only to those Disposal Sites set
forth in Section 2.10(f) of the Company Disclosure Schedule; and no action,
proceeding, liability or claim exists or is threatened against any Disposal Site
or against the Company with respect to any transfer or release of Hazardous
Materials relating to the Business to a Disposal Site which could reasonably be
expected to subject the Company to liability.
(g) Environmental Liabilities: The Company is not aware
of any fact or circumstance, which could result in any environmental liability
which could reasonably be expected to result in a material adverse effect on the
business or financial status of the Company.
(h) Reports and Record: The Company has delivered to
Sanmina or made available for inspection by Sanmina and its agents,
representative and employees all records in the Company's possession concerning
the Hazardous Material Activities of the Company relating to its business and
all environmental audits and environmental assessments of any Business Facility
conducted at the request of, or otherwise in the possession of the Company. The
Company has complied with all environmental disclosure obligations imposed by
applicable law with respect to this transaction.
SECTION 2.11. Labor Matters. There are no collective bargaining
agreements or other labor union agreements to which the Company or any of its
subsidiaries is a party, or by which it is bound. The Company and each of its
subsidiaries is in compliance with all federal, state and local laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and is not engaged in any unfair labor practice. There is no
unfair labor practice complaint against the Company or any of its subsidiaries
pending or, to the knowledge of the Company, threatened before the National
Labor Relations Board or the United States Department of Labor. There is no
labor strike, dispute, slowdown or stoppage in progress or, to the knowledge of
the Company, threatened against or involving the Company or any of its
subsidiaries. No question concerning representation has been raised or, to the
knowledge of the Company, is threatened respecting the Company or any of its
subsidiaries. No grievance or arbitration proceeding is pending and, to the
knowledge of the Company, no claim therefor exists. No private agreement
restricts the Company or any of its subsidiaries from relocating, closing or
terminating any of its operations or facilities. Neither the Company nor any of
its subsidiaries has, in the past three years, experienced any labor strike,
dispute, slowdown, stoppage or other labor difficulty.
SECTION 2.12. Absence of Changes in Benefit Plans. Except as
disclosed in Section 2.12 of the Company Disclosure Schedule, since December 31,
1998, there has not been any adoption or amendment in any material respect by
the Company or any of its subsidiaries of any collective bargaining agreement or
any bonus, pension, profit sharing, deferred compensation, incentive
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compensation, stock ownership, stock purchase, stock option, phantom stock,
retirement, vacation, severance, disability, death benefit, hospitalization,
medical or other plan, arrangement or understanding (whether or not legally
binding) providing benefits to any current or former employee, officer or
directors of the Company (collectively, "Benefit Plans"). Except as disclosed in
the Company Disclosure Schedule, there exist no employment, consulting,
severance, termination or indemnification agreements, arrangements or
understandings between the Company, any current or former employee, officer or
director of the Company, which is either currently effective or will become
effective at the Closing Date.
SECTION 2.13. ERISA Compliance.
(a) Section 2.13(a) of the Company Disclosure Schedule
contains a list and brief description of all "employee pension benefit plans"
(as defined in Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) (sometimes referred to herein as "Pension Plans"),
"employee welfare benefit plans" (as defined in Section 3(1) of ERISA),
"employee benefit plans" (as defined in Section 3(3) of ERISA), which are
maintained in connection with any trust described in Section 501(c)(9) of the
Code, and all other Benefit Plans maintained, or contributed to, by the Company
or any person or entity that, together with the Company, is treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code (the Company and each
such other person or entity, a "Commonly Controlled Entity") for the benefit of
any current or former employees, officers or directors of the Company. The
Company has made available to Parent true, complete and correct copies of (i)
each Benefit Plan (or, in the case of any unwritten Benefit Plans, descriptions
thereof), (ii) the most recent annual report on Form 5500 filed with the
Internal Revenue Service with respect to each Benefit Plan.(if any such report
was required), (iii) the most recent summary plan description for each Benefit
Plan for which such summary plan description is required and (iv) each trust
agreement and group annuity contract relating to any Benefit Plan. Each Benefit
Plan has been administered in all material respects in accordance with its
terms. The Company and all the Benefit Plans are all in compliance in all
material respects with applicable provisions of ERISA and the Code.
(b) All Pension Plans have been the subject of
determination letters from the Internal Revenue Service to the affect that such
Pension Plans are qualified and exempt from Federal income taxes under Section
401(a) and 501(a), respectively, of the Code, and no such determination letter
has been revoked nor has any event occurred since the date of its most recent
determination letter or application therefor that would adversely affect its
qualification or materially increase its costs.
(c) Neither the Company nor any Commonly Controlled
Entity has maintained, contributed or been obligated to contribute to any
Benefit Plan that is subject to Title IV of ERISA.
(d) With respect to any Benefit Plan that is an employee
welfare benefit plan, there are no understandings, agreements or undertakings,
written or oral, that would prevent any such plan (including any such plan
covering retirees or other former employees) from being amended or terminated
without material liability to the Company on or at any time after the Effective
Time.
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(e) Neither the Company nor any of its subsidiaries
contributes to or has any liability to the Pension Benefit Guaranty Corporation
or any other person, plan or entity under or with respect to (i) a pension plan
subject to Title IV of ERISA or Section 412 of the Code, (ii) a multi-employer
pension plan, as defined in Section 3(37) of ERISA or (iii) an employee welfare
benefit plan. Neither the Company nor any of its subsidiaries maintain an
employee welfare benefit plan providing health or medial benefits for retired
employees.
(f) No employee welfare benefit plan of the company or
any of its subsidiaries provides for continuing benefits or coverage after
termination or retirement from employment, except with respect to any "group
health plan" as defined in Section 4980B(g) of the Code and Section 607 of
ERISA. With respect to any Benefit Plan which is a "group health plan," as so
defined, the Company warrants that in all "qualified events" (including those
resulting from the Merger) occurring prior to or on the Closing Date, the
Company has or will offer to its eligible employees and their "qualified
beneficiaries" the opportunity to elect continuation coverage under Section 602
of ERISA to the extent required by ERISA Sections 601-607 and will provide that
coverage if elected, at no expense to Parent.
(g) There is no Benefit Plan covering any employee or
former employee of the Company or any of its subsidiaries that, individually or
collectively, could give rise to the payment of an amount that would not be
deductible pursuant to the terms of Sections 280G or 162 of the Code.
(h) Neither the Company nor any of its subsidiaries nor
any of their "affiliates" (as defined in ERISA) has ever participated in or
withdrawn from a multi-employer plan as defined in Section 4001(a)(3) of Title
IV of ERISA, and neither the Company nor any of its subsidiaries has incurred or
owes any liability as a result of any partial or complete withdrawal by any
employer from such a multi-employer plan as designated under Sections 4201,
4203, or 4205 of ERISA.
(i) No employee of the Company or any of its subsidiaries
is obligated under any agreement or judgment that would conflict with such
employee's obligation to use his best efforts to promote the interests of the
Company or would conflict with the Company's business as conducted or proposed
to be conducted. No employee of the Company or any of its subsidiaries is in
violation of the terms of any employment agreement or any other agreement
relating to such employee's relationship with any previous employer and no
litigation is pending or threatened with regard thereto.
(j) No employee of the Company will be entitled to any
additional compensation or benefits or any acceleration of the time of payment
or vesting of any compensation or benefits under any Benefit Plan as a result of
the transactions contemplated by this Agreement.
(k) The deduction of any amount payable pursuant to the
terms of the Benefit Plans will not be subject to disallowances under Section
162(m) of the Code.
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SECTION 2.14. S Corporation Status. The Company is an S
corporation, as defined in Section 1361 of the Code, has been an S corporation
since September 1, 1989, and will continue to be an S corporation until the
Closing Date.
SECTION 2.15. Taxes. As of the Effective Time: The Company has
filed on or before the applicable due date except as extended until June 15,
1999 all Tax returns and reports ("Returns") required to be filed by it relating
to any and all Taxes concerning or attributable to the Company or its
operations, and such Returns were, when filed, true and correct and have been
completed in all respects in accordance with applicable law. The Interim
Financials reflect an adequate reserve for all taxes required to be paid or
accrued by the Company for all taxable periods and portions thereof through the
date of such financial statements except for the Wisconsin Environmental
Surcharge in a maximum amount of less than $10,000. No deficiencies for any
taxes have been proposed, asserted or assessed against the Company, nor is there
any reasonable basis for the assertion of any such deficiency. No material
special charges, penalties, fines, liens, or similar encumbrances have been
asserted against the Company with respect to payment of or failure to pay any
taxes. Proper amounts have been withheld by the Company from employee
compensation payments for all periods in compliance with the Tax withholding
provisions of applicable federal and state laws. None of the Federal income Tax
returns of the Company within the past seven years have been examined by the
United States Internal Revenue Service for the fiscal years through September
26, 1998. The Company has not been delinquent in the payment of any Tax, nor is
there any Tax deficiency outstanding, proposed or assessed against the Company,
nor has the Company executed any waiver of any statute of limitations on or
extending the period for the assessment or collection of any Tax. There is no
pending, or to the knowledge of the Company, threatened action, audit,
proceeding or investigation for the assessment or collection of any Taxes, nor
has the Company been notified within the past seven years of any request for
such an audit or other examination. There are no requests for rulings,
subpoenas, or information pending with respect to any taxing authority. The
Company does not have any liabilities for unpaid federal, state, local, and
foreign Taxes which have not been accrued or reserved against in accordance with
GAAP on the Company's balance sheet, whether asserted or unasserted, contingent
or otherwise. The Company has not taken any action nor does it have any
knowledge of any fact or circumstance that is reasonably likely to prevent the
Merger from qualifying as a reorganization within the meaning of Section 368(a)
of the Code. As used in this Agreement, "Tax" or collectively "Taxes" shall
include all Federal, state, local and foreign taxes, assessments and other
governmental charges, duties, imposition and liabilities, including taxes based
upon or measured by gross receipts, profits, use and occupation, and value
added, ad valorem, transfer, franchise, withholding, payroll, recapture,
employment, income, property, sales, excise and other taxes, tariffs or
governmental charges of any nature whatsoever together with all image,
penalties, and additions imposed with respect to such amounts and any obligation
under any agreements or arrangements with any other person with respect to such
amounts and including any liability for taxes of a predecessor entity.
SECTION 2.16. No Excess Parachute Payments. No amount that could be
received (whether in cash or property or the vesting of property) as a result of
any of the transactions contemplated by this Agreement by any employee, officer
or director of the Company or any of its subsidiaries who is a "disqualified
individual" (as such term is defined in proposed Treasury
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Regulation Section 1.280G-1) under any employment, severance or termination
agreement, other compensation arrangement or Benefit Plan currently in effect
would be an "excess parachute payment" (as such term is defined in Section
280G(b)(l) of the Code). No such person is entitled to receive any additional
payment from the Company, the Surviving Corporation or any other person (a
"Parachute Gross-Up Payment") in the event that the excise Tax of Section
4999(a) of the Code is imposed on such person. No officer, director or employee
of the Company or any of its subsidiaries has been granted any right to seize
any Parachute Gross-up Payment by the Company or any of its subsidiaries.
SECTION 2.17. Title to Properties.
(a) Section 2.17 of the Company Disclosure Schedule
contains a correct and complete list of each item of capital equipment,
including machinery and equipment, tools, dies, fixtures, furniture,
furnishings, plant and office equipment and vehicles with a value in exotics of
$50,000 which is owned by the Company or one of its subsidiaries and used in
connection with its business (the "Equipment").
(b) The Company and each of its subsidiaries has good and
marketable title to, or valid leasehold interests in, all its material
properties and assets except for such as are no longer used or useful in the
conduct of its businesses or as have been disposed of in the ordinary course of
business and except for defects in title, easements, restrictive covenants and
similar encumbrances that individually or in the aggregate would not materially
interfere with the ability of the Company or any of its subsidiaries to conduct
its business as currently conducted. All such material assets and properties,
other than assets and properties in which the Company or any of its subsidiaries
has a leasehold interest, are free and clear of all Liens and except for Liens
that individually or in the aggregate would not materially interfere with the
ability of the Company and each of its subsidiaries to conduct its business as
currently conducted.
(c) The Company and each of its subsidiaries has complied
in all material respects with the terms of all material leases to which it is a
party and under which it is in occupancy, and all such leases are in full force
and effect. The Company and/or one or more of its subsidiaries enjoys peaceful
and undisturbed possession wider all such material leases, except for failures
to do so that would not individually or in the aggregate have a material adverse
effect on the Company.
SECTION 2.18. Intellectual Property. The Company owns, or is
validly licensed or otherwise has the right to use, all patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service mark rights, copyrights and other proprietary intellectual property
rights and computer programs (collectively, "Intellectual Property Rights")
which are material to the conduct of the business of the Company and its
subsidiaries taken as a whole. No claims are pending or, to the knowledge of the
Company, threatened that the Company or any of its subsidiaries is infringing or
otherwise adversely affecting the rights of any person with regard to any
Intellectual Property Right. To the knowledge of the Company, no person is
infringing the rights of the Company or any of its subsidiaries with respect to
any Intellectual Property Right. Neither the
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Company nor any of its subsidiaries has licensed, or otherwise granted, to any
third party, any rights in or to any Intellectual Property Rights.
SECTION 2.19. Voting Requirements. The affirmative vote of a
majority of the shareholders of the Company is the only vote of the holders of
any class or series of the Company's capital stock necessary to approve this
Agreement and the transactions contemplated by this Agreement.
SECTION 2.20. Brokers; Schedule of Fees and Expenses. No broker,
investment banker, financial advisor or other person is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Company.
SECTION 2.21. Accounting Matters. The Company has not taken or
agreed to take any action that would prevent the business combination to be
effected by the Merger to be accounted for as a pooling of interests.
SECTION 2.22. Equipment and Other Personal Property Leases.
Section 2.22 of the Company Disclosure Schedule sets forth a correct
and complete list of all of the leases of Equipment. and other personal property
to which the Company or any of its subsidiaries is a party (the "Equipment and
Other Personal Property Leases"). The Equipment and Other Personal Property
Leases listed in Section 2.22 include all leases by the Company or any of its
subsidiaries of any item of personal property used by the Company or any of its
subsidiaries in connection with the operation of their businesses. Except as set
forth in such Section 2.22, all of the equipment and personal property leased by
the Company or any of its subsidiaries under the Equipment, and Other Personal
Property Leases is currently used by the Company and/or one or more of its
subsidiaries in the ordinary course of their businesses. The Company has
delivered to Parent correct and complete copies of all Equipment and Other
Personal Property Leases. The Equipment and Other Personal Property Leases are
valid, subsisting and in full force and effect, and neither the Company nor any
other party thereto is in default of any of its obligations under any of such
leases. Except as set forth in such Section 2.22, no consent to the consummation
of the transactions contemplated by this Agreement is required from the lessors
of any of the Equipment or Other Personal Property.
SECTION 2.23. Product and Service Warranties. Except as described
in Section 2.23 of the Company Disclosure Schedule, neither the Company nor any
of its subsidiaries has given or made any warranties to third parties with
respect to any products supplied or services performed in respect of their
businesses which may still be in effect at any time after the date hereof,
except for warranties imposed by law. Except as described in such Section 2.23,
there have been no claims or investigations made with respect to any product or
service warranties which have not been fully settled and resolved or any
unresolved warranty claims. The Company does not know or have any reason to know
of any basis for any other claim or investigation.
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SECTION 2.24. Orders, Commitments and Returns. Section 2.24 of the
Company Disclosure Schedule contains a correct and complete list of purchase
orders, contracts and agreements for the sale of goods and services by the
Company or any of its subsidiaries (collectively, the "Customer Purchase
Orders"). Each of the Customer Purchase Orders is a firm purchase order that has
been released by the customer for production and no Customer Purchase Order is
based on sales forecasts or other estimates of customer requirements that has
not yet been released for production or converted to a firm purchase order. Each
of the Customer Purchase Orders is in full force and effect and is a valid and
binding obligation of the customer, and neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any of the other parties
thereto is in default under any of the Customer Purchase Orders. The aggregate
of all accepted and unfilled orders for the sale of merchandise entered into by
the Company or any of its subsidiaries does not exceed an amount which can
reasonably be expected to be filled in the ordinary course of business on a
schedule which will maintain satisfactory customer relationships, and the
aggregate of all contracts or commitments for the purchase of products by the
Company and all of its subsidiaries does not exceed an amount which is
reasonable for the anticipated volumes of their businesses (all of which orders,
contracts and commitments were made in the ordinary course of business). There
are no asserted, or if unasserted, sustainable, claims to return merchandise of
the Company or any of its subsidiaries by reason of alleged overshipments,
defective merchandise, breach of warranty or otherwise. There is no merchandise
in the hands of customers under any understanding that such merchandise is
returnable other than pursuant to the standard returns policy set forth in the
contracts of the Company or any of its subsidiaries. The Company does not know
or have reason to believe that either the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby will
result in any cancellations or withdrawals of accepted and unfilled orders for
the sale of merchandise.
SECTION 2.25. Customers. Section 2.25 of the Company Disclosure
Schedule contains a correct and complete list of all customers and accounts of
the Company and each of its subsidiaries in respect of their businesses (the
"Customers") and a correct and complete list of all contracts between any
Customer and the Company or any of its subsidiaries (the "Customer Contracts").
The Company has provided to Parent such other records and documentation
regarding the Customers as Parent has reasonably requested. Neither the Company
nor any of its subsidiaries has received any information from any Customer
listed in such Section 2.25 that such Customer will not continue as a customer
of the Company, such subsidiary or Parent after the Closing or that any such
Customer intends to terminate or materially modify any such Customer Contract.
SECTION 2.26. Suppliers. Section 2.26 of the Company Disclosure
Schedule contains an accurate and complete list of the names and addresses of
the ten largest suppliers from whom the Company or any of its subsidiaries has
purchased supplies during the past fiscal year. Neither the Company nor any of
its subsidiaries has received any indication from any supplier listed on such
Section 2.26 (or otherwise has any reason to believe) that such supplier will
not continue as a supplier of the Company, such subsidiary or Parent after the
Closing.
SECTION 2.27. Inventory. Section 2.27 of the Company Disclosure
Schedule contains a correct and complete list of all inventory of the Company
and its subsidiaries, including supplies,
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raw materials, work-in-process, spare parts, finished goods and returned
material, both useable and excess, obsolete and damaged, used in connection with
their businesses (the "Inventory"). The Inventory is of good and merchantable
quality and are usable and saleable in the ordinary course of the Company's and
its subsidiaries' businesses, except for items of obsolete materials and
materials of below standard quality, all of which have been written down to
realizable market value or for which adequate reserves have been provided.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF PARENT AND SUB
Except as set forth on the disclosure schedule delivered by the Parent
and Sub to Company prior to the execution of this Agreement (the "Parent/Sub
Disclosure Schedule") and except as sets forth in the Parent SEC Documents (as
defined below), Parent and Sub represent and warrant to the Company as follows:
SECTION 3.1. Organization, Standing and Corporate Power. Each of
Parent and Sub is a corporation duly organized, validly existing and in good
standing under the laws of Delaware and Wisconsin, respectively, and has all
requisite corporate power and authority to carry on its business as now being
conducted. Each of Parent and Sub is duly qualified or licensed to do business
and is in good standing in each jurisdiction in which the nature of its business
or the ownership, leasing or operation of its properties makes such
qualification or licensing necessary, other than in such jurisdictions where the
failure to be so qualified or licensed individually or in the aggregate would
not have a material adverse effect on Parent. Parent has delivered to the
Company complete and correct copies of its Certificate of Incorporation and
Bylaws and the Articles of Incorporation and Bylaws of Sub, in each case as
amended to the date hereof.
SECTION 3.2. Capital Structure. The authorized capital stock of
Parent consists of 200,000,000 shares of Common Stock, par value $0.01 per share
and 5,000,000 shares of preferred stock, par value $0.01 per share ("Preferred
Stock"). At the close of business on March 24, 1999, (a) 56,934,737 shares of
Parent Common Stock were issued and outstanding (b) no shares of Preferred Stock
were held by Parent in its treasury, and (c) 10,818,557 shares of Parent Common
Stock were reserved for issuance pursuant to Parent's stock option and employee
stock purchase plan ("Parent Equity Incentive Plans"). Except as set forth
above, at the close of business on March 24, 1999, no shares of capital stock or
other voting securities of Parent were issued, reserved for issuance or
outstanding. All outstanding shares of capital stock of Parent are, and all
shares which may be issued pursuant to the Parent Equity Incentive Plans will
be, when issued in accordance with the terms thereof, duly authorized, validly
issued, fully paid and nonassessable and not subject to preemptive rights. There
are no bonds, debentures, notes or other indebtedness of Parent having the right
to vote (or convertible into securities having the right to vote) on any matters
on which shareholders of Parent may vote. Except as set forth above, there are
no securities, options, warrants, calls, rights, commitments, agreements,
arrangements or undertakings of any kind to which Parent is a party, or by which
it is bound, obligating Parent to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock or other voting securities
of Parent or
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obligating Parent to issue, grant, extend or enter into any such security,
option, warrant, call, right, commitment, agreement, arrangement or undertaking.
There are not any outstanding contractual obligations of Parent to repurchase,
redeem or otherwise acquire any shares of capital stock or other securities of
Parent. There are no shareholder agreements, voting trusts or other agreements
or understandings to which Parent is a party or by which it is bound relating to
the voting of any shares of capital stock of Parent.
All of the outstanding capital stock of Parent's subsidiaries is owned
by Parent, directly or indirectly, free and clear of any lien (as defined in
Section 2.3) or any other limitation or restriction (including any restriction
on the right to vote or sell the same, except as may be provided as a matter of
law). There are no securities of Parent or its subsidiaries convertible into or
exchangeable for, no options or other rights to acquire from Parent or its
subsidiaries, and no other contract, understanding, arrangement or obligation
(whether or not contingent) providing for the issuance or sale, directly or
indirectly, of any capital stock or other ownership interests in, or any other
securities of, any subsidiary of Parent. There are no outstanding contractual
obligations of Parent or its subsidiaries to repurchase, redeem or otherwise
acquire any outstanding shares of capital stock or other ownership interests in
any subsidiary of Parent.
SECTION 3.3. Authority; Noncontravention. Parent and Sub have all
requisite corporate power and authority to enter into this Agreement (and, in
the case of Parent, the Shareholder Agreement), and to consummate the
transactions contemplated by this Agreement (and, in the case of Parent, those
contemplated by the Shareholder Agreement). The execution and delivery of this
Agreement (and, in the case of Parent, the Shareholder Agreement), and the
consummation of the transactions contemplated by this Agreement (and, in the
case of Parent, those contemplated by the Shareholder Agreement), have been duly
authorized by all necessary corporate action on the part of Parent and Sub. This
Agreement (and, in the case of Parent, the Shareholder Agreement) has been duly
executed and delivered by Parent and Sub, and constitutes a valid and binding
obligation of each such party, enforceable against each such party in accordance
with its terms. The execution and delivery of this Agreement and the Shareholder
Agreement do not, and the consummation of the transactions contemplated by this
Agreement and the Shareholder Agreement and compliance with the provisions of
this Agreement and the Shareholder Agreement will not, conflict with, or result
in any violation of, or default (with or without notice of lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, or result
in the creation of any Lien upon any of the properties or assets of Parent or
any of its subsidiaries under, any provision of (a) the Certificate of
Incorporation or Bylaws of Parent or the Articles of Incorporation or Bylaws of
Sub or any provision of the comparable charter or organizational documents of
any other subsidiary of Parent, (b) any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit, concession,
franchise or license applicable to Parent, Sub or any other subsidiary of Parent
or their respective properties or assets or (c) subject to the governmental
filings and other matters referred to in the following sentence, any (i)
statute, law, ordinance, rule or regulation or (ii) judgment, order or decree
applicable to Parent, Sub or any other subsidiary of Parent or their respective
properties or assets, other than, in the case of clause (b) and clause (c)(i),
any such conflicts, violations, defaults, rights or Liens that individually or
in the aggregate would not (x) have a material adverse effect on Parent,
-22-
(y) impair in any material respect the ability of Parent and Sub to perform
their respective obligations hereunder or (z) prevent or materially delay the
consummation of any of the transactions contemplated by this Agreement. No
consent, approval, order or authorization of, or registration, declaration or
filing with, any Governmental Entity is required by or with respect to Parent,
Sub or any other subsidiary of Parent in connection with the execution and
delivery of this Agreement (and, in the case of Parent, the Shareholder
Agreement) by Parent and Sub or the consummation by Parent and Sub of the
transactions contemplated by this Agreement (and, in the case of Parent, those
contemplated by the Shareholder Agreement), except for (1) the filing of a
premerger notification and report form under the HSR Act, (2) the filing of the
Articles of Merger with the Wisconsin Secretary of State and appropriate
documents with the relevant authorities of other states in which Parent is
qualified to do business and (3) such other consents, approvals, orders,
authorizations, registrations, declarations and filings as may be required under
the "blue sky" laws of various states, the failure of which to be obtained or
made would not, individually or in the aggregate, have a material adverse affect
on parent or prevent or materially delay the consummation of any of the
transactions contemplated by this Agreement.
SECTION 3.4. SEC Documents. Parent has filed all required reports,
schedules, forms, statements and other documents with the SEC since January 1,
1995 (the "SEC Documents"). As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the Securities Act of
1933 (the "Securities Act"), or the Exchange Act, as the case may be, and the
rules and regulations of the SEC promulgated thereunder applicable to such SEC
Documents, and none of the SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Except to the extent
that information contained in any SEC Document has been revised or superseded by
a later filed SEC Document, none of the SEC Documents contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The financial
statements of Parent included in the SEC Documents comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulation of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles (except, in the case of
unaudited financial statements, as permitted by Form 10-Q of the SEC) applied on
a consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly present the consolidated financial position of
Parent as of the dates thereof and the results of its operations and cash flows
for the periods then ended (subject, in the case of unaudited financial forms,
statements and other documents filed with the SEC by Parent ("Filed Parent SEC
Documents"), Parent has no liabilities or obligation of any nature (whether
accrued, absolute, contingent or otherwise) which, individually or in the
aggregate, would have a material adverse effect on Parent.
SECTION 3.5. Absence of Certain Changes or Events. Except as
disclosed in the Filed Parent SEC Documents and publicly available prior to the
date of this Agreement, since the date of the most recent unaudited financial
statements included in the Filed Parent SEC Documents and
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through the date of this Agreement, Parent has conducted its business only in
the ordinary course consistent with past practice, and there has not been:
(a) any material adverse change (as defined in Section
9.2) in Parent;
(b) any declaration, setting aside or payment of any
dividend or other distribution (whether in cash, stock or property) with respect
to any of the Parent's capital stock;
(c) any split, combination or reclassification of any of
its capital stock or any issuance or the authorization of any issuance of any
other securities in respect of, in lieu of or in substitution for shares of its
capital stock;
(d) any damage, destruction or loss, whether or not
covered by insurance, that individually or in the aggregate would have a
materiel adverse effect on parent or any of its subsidiaries;
(e) any change in accounting methods, principles or
practices by Parent materially affecting its assets, liabilities or business,
except insofar as may have been required by a change in generally accepted
accounting principles;
(f) any Tax election that individually or in the
aggregate would have a material adverse effect on Parent or any of its Tax
attributes or any settlement or compromise of any material income Tax liability;
(g) any incurrence of any material obligation or
liability (whether absolute, accrued, contingent or otherwise and whether due or
to become due), except items incurred in the ordinary course of business and
consistent with past practice;
(h) any cancellation of any debts or claims, or waiver of
any rights, of substantial value;
(i) any sale, transfer, conveyance, encumbrance or grant
of any security interest in any of Parent's assets (whether real, personal or
mixed, tangible or intangible), except in the ordinary course of business and
consistent with past practice; or
(j) any agreement, whether in writing or otherwise, to
take any action described in this Section 3.5.
SECTION 3.6. Litigation. There is no suit, action or proceeding
pending or, to the knowledge of Parent, threatened against or affecting Parent
or any of its subsidiaries that individually or in the aggregate would have a
material adverse effect on Parent, nor is there any judgment, decree,
injunction, rule or order of any Governmental Entity or arbitrator outstanding
against, or, to the knowledge of Parent, investigation by any Governmental
Entity involving, Parent or any of its subsidiaries that individually or in the
aggregate would have a material adverse effect on Parent.
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SECTION 3.7. Compliance with Laws. Parent and each of its
subsidiaries is in compliance with all applicable statutes, laws, ordinances,
regulations, rules, judgments, decrees and orders of any Governmental Entity
(collectively, "Legal Provisions") applicable to its business or operations,
except for instances of possible noncompliance that, individually or in the
aggregate, would not have a material adverse effect on Parent or prevent or
materially delay the consummation of the Merger. Parent and each of its
subsidiaries has in effect all Federal, state, local and foreign governmental
approvals, authorizations, certificates, filings, franchises, licenses, notices,
permits and rights, including all authorizations under Environmental Laws (as
defined in Section 2.9) ("Permits"), necessary for it to own, lease or operate
its properties and assets and to carry on its business as now conducted, and
there has occurred no default under, or violation of, any such Permit, except
for the lack of Permits and for defaults under, or violations of, Permits which
lack, default or violation individually or in the aggregate would not have a
material adverse effect on Parent. Except as disclosed in the Filed Parent SEC
Documents, Parent has not received any notice or other communication from any
Governmental Entity alleging any violation of any Legal Provision by Parent.
SECTION 3.8. Taxes. Parent has not taken any action nor does it
have any knowledge of any fact or circumstance that is reasonably likely to
prevent the Merger from qualifying as a reorganization within the meaning of
Section 368(a) of the Code.
SECTION 3.9. Title to Properties. Parent and each of its
subsidiaries has good and marketable title to, or valid leasehold interests in,
all its material properties and assets except for such as are no longer used or
useful in the conduct of its businesses or as have been disposed of in the
ordinary course of business and except for defects in title, easements,
restrictive covenants and similar encumbrances that individually or in the
aggregate would not materially interfere with the ability of Parent or any of
its subsidiaries to conduct its business as currently conducted. All such
material assets and properties, other than assets and properties in which Parent
or any of its subsidiaries has a leasehold interest, are free and clear of all
Liens and except for Liens that individually or in the aggregate would not
materially interfere with the ability of Parent and each of its subsidiaries to
conduct its business as currently conducted. Parent and each of its subsidiaries
has complied in all material respects with the terms of all material leases to
which it is a party and under which it is in occupancy, and all such leases are
in full force and effect. Parent and/or one or more of its subsidiaries enjoys
peaceful and undisturbed possession under all such material leases, except for
failures to do so that would not individually or in the aggregate have a
material adverse effect on Parent.
SECTION 3.10. Voting Requirements. No vote of or other action by
the holders of Parent's Common Stock (or securities convertible into Parent's
Common Stock) is necessary in connection with the approval of this Agreement or
the consummation by Parent of the transactions contemplated by this Agreement.
SECTION 3.11. Brokers; Schedule of Fees and Expense. Except for
fees of approximately $400,000 to be paid to Broadview Associates, no broker,
investment banker, financial advisor or other person is entitled to any
broker's, finder's, financial advisor's or other similar fee or
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commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Parent.
SECTION 3.12. Accounting Matters. Parent has not taken or agreed
to take any action that would prevent the business combination to be effected by
the Merger to be accounted for as a pooling of interests.
SECTION 3.13. Interim Operations of Sub. Sub was formed solely for
the purpose of engaging in the transactions contemplated hereby, has engaged in
no other business activities and has conducted its operations only as
contemplated hereby.
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
SECTION 4.1. Conduct of Business by the Company. During the period
from the date of this Agreement to the Effective Time, the Company shall carry
on its business in the ordinary course consistent with the manner as heretofore
conducted and, to the extent consistent therewith, use reasonable efforts to
preserve intact its current business organization, keep available the services
of its current officers and employees and preserve its relationships with
customers, suppliers, licensers, licensees, distributors and others having
business dealings with it. Without limiting the generality of the foregoing,
during the period from the date of this Agreement to the Effective Time, the
Company shall not:
(a) (i) declare, set aside or pay any dividends on, or
make any other distributions in respect of; any of its capital stock except for
dividends or distributions sufficient to cover but not exceed S corporation Tax
liability of the Company's shareholders which dividend shall represent 1998
through the close of the S corporation tax year, (ii) split, combine or
reclassify any of its capital stock or issue or authorize the issuance of any
other securities in respect of, in lieu of or in substitution for shares of its
capital stock, or (iii) purchase, redeems or otherwise acquire any share of
capital stock of the Company or any other securities thereof or any rights,
warrants or options to acquire any such shares or other securities;
(b) amend its Articles of Incorporation, Bylaws or other
comparable charter or organizational documents;
(c) acquire or agree to acquire (i) by merging or
consolidating with, or by purchasing a substantial portion of the assets of or
by any other manner, any business or any corporation, partnership, joint
venture, association or other business organization or division thereof or (ii)
any assets which, individually, is in excess of $50,000 or, in the aggregate,
are in excess of $100,000, except purchases of inventory in the ordinary course
of business consistent with past practice;
(d) take any action that would, or that could reasonably
be expected to, result in (i) any of its representations and warranties set
forth in this Agreement that are qualified as to materiality becoming untrue,
(ii) any of such representations and warranties that are not so qualified
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becoming untrue in any material respect or (iii) any of the conditions to the
Merger set forth in Article VI not being satisfied;
(e) issue, deliver, sell, pledge or otherwise encumber
any shares of its capital stock, any other voting securities or any securities
convertible into, or any rights, warrants or options to acquire, any such
shares, voting securities or convertible securities;
(f) sell, lease, license, mortgage or otherwise encumber
or subject to any Lien or otherwise dispose of any of its properties or assets,
except sales of inventory in the ordinary course of business consistent with
past practice;
(g) (i) incur any indebtedness for borrowed money or
guarantee any such indebtedness of another person, issue or sell any debt
securities or warrants or other rights to acquire any debt securities of the
Company, guarantee any debt securities of another person, enter into any "keep
well" or other agreement to maintain any financial statement condition of
another person or enter into any arrangement having the economic effect of any
of the foregoing, except for short-term borrowings incurred in the ordinary
course of business consistent with past practice or (ii) make any loans,
advances or capital contributions to, or investments in, any other person, other
than advances to employees in the ordinary course in accordance with past
practice;
(h) except capital expenditures in connection with the
Company's facility expansion project as disclosed in Section 2.6 of the Company
Disclosure Schedule, make or agree to make any new capital expenditure or
expenditures which, individually, is in excess of $50,000 or, in the aggregate,
are in excess of $100,000;
(i) pay, discharge, settle or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or satisfaction, in
the ordinary course of business consistent with past practice or in accordance
with their terms, of liabilities reflected or reserved against in, or
contemplated by, the Interim Financials or incurred in the ordinary course of
business consistent with past practice, or waive any material benefits of, or
agree to modify in any material respect, any confidentiality, standstill or
similar agreements to which the Company is a party;
(j) except in the ordinary course of business, modify,
amend or terminate any material contract or agreement to which the Company is a
party or waive, release or assign any material rights or claims thereunder;
(k) enter into any contracts, agreements, arrangement or
understandings relating to the distribution, sale or marketing by third parties
of the Company's products or products licensed by the Company;
(l) except as required to comply with applicable law, (i)
adopt, enter into, terminate or amend any Benefit Plan or other arrangement for
the benefit or welfare of any director, officer or current or former employee,
(ii) increase in any manner the compensation or fringe benefits of, or pay any
bonus to, any director, officer or employee (except for normal increases of
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cash compensation or cash bonuses in the ordinary course of business consistent
with past practice), (iii) pay any benefit not provided for under any Benefit
Plan, (iv) except as permitted in clause (ii), grant any awards under any bonus,
incentive, performance or other compensation plan or arrangement or Benefit Plan
(including the grant of stock options, stock appreciation rights, stock based or
stock related awards, performance units or restricted stock or the removal of
existing restrictions in any Benefit Plans or agreements or awards made
thereunder) or (v) take any action to fund or in any other way secure the
payment of compensation or benefits under any employee plan, agreement, contract
or arrangement or Benefit Plan;
(m) form any subsidiary to the Company; or
(n) authorize any of, or commit or agree to take any of,
the foregoing actions.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.1. Registration of Parent Common Stock. In accordance
with a registration rights agreement substantially in the form attached hereto
as Exhibit C (the "Registration Rights Agreement"), Parent shall prepare and
file within 15 days after the Closing Date a registration statement on Form S-3
under the Securities Act covering the Consideration Common Issued pursuant to
the Merger and held by signatory(ies) to the Registration Rights Agreement (the
"Holders") as of the filing date. Parent shall use commercially reasonable
efforts to cause the S-3 to become effective prior to the expiration of the
lockup period set forth in the Company Affiliate Agreement (as defined below).
During the period from the filing of the S-3 until it is declared effective,
Parent shall keep the Holders reasonably informed concerning the status of the
S-3 and provide the Holders with copies of all material correspondence with the
SEC.
SECTION 5.2. Access to Information; Confidentiality. The Company
shall afford to Parent, and to Parent's officers, employees, accountants,
counsel, financial advisors and other representatives, reasonable access during
normal business hours during the period prior to the Effective Time.
SECTION 5.3. No Solicitation. The Company shall not, nor shall it
authorize or permit any of its officers, directors or employees or any
investment banker, attorney or other advisor or representative retained by it
to, directly or indirectly, (i) solicit, initiate or encourage the submission of
any Takeover Proposal (as hereinafter defined) or (ii) participate in my
discussions or negotiations regarding, or furnish to any person any information
with respect to, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Takeover Proposal. Without limiting the foregoing, it is understood that
any violation of the restrictions set forth in the preceding sentence by any
officer, director or employee of the Company or any investment banker, attorney
or other advisor or representative of the Company, acting on behalf of the
Company, shall be deemed to be a breach of this Section 5.3 by the Company. For
purposes of this Agreement, "Takeover Proposal" means any proposal or offer from
any person relating to any direct or indirect acquisition or purchase of a
substantial amount of assets of the Company (other than products of the Company)
or more than a 20% interest in the total voting
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securities of the Company or any tender offer or exchange offer that if
consummated would result in any person beneficially owning 20% or amore of any
class of equity securities of the Company or any merger, consolidation, business
combination, sale of substantially all assets, recapitalization, liquidation,
dissolution or similar transaction involving the Company, other than the
transactions contemplated by this Agreement or the Shareholder Agreement.
SECTION 5.4. Public Announcements. Parent and Sub, on the one
hand, and the Company, on the other land, will consult with each other before
issuing, and give each other the opportunity to review and comment upon, any
press release or other public statements with respect to the transactions
contemplated by this Agreement, including the Merger, and shall not issue any
such press release or make any such public statement prior to such consultation,
except as may be required by applicable law, court process or by obligations
pursuant to any listing agreement with any national securities exchange or
national securities quotation system. The parties agree that the initial press
release to be issued with respect to the transactions contemplated by this
Agreement shall be in the form theretofore agreed to by the parties.
SECTION 5.5. Letters of the Company's Accountants. The Company
shall use its reasonable efforts to cause to be delivered to Parent a letter
from Donald Tuschaus & Company, addressed to the Board of Directors of the
Company, dated as of the Closing Date, stating that no conditions exist that
would preclude the Company from being a Party to a business combination for
which the pooling of interest method of accounting would be available under
Opinion 16 of the Accounting Principles Board and applicable SEC rules and
regulations (as such criteria relate of the Company and not Parent). Such letter
shall be subject to customary qualifications and assumptions.
SECTION 5.6. Letters of Parent's Accountants. Parent shall use its
reasonable efforts to cause to be delivered to Company letter from Arthur
Andersen LLP, addressed to the Board of Directors of the Parent, dated as of the
Closing Date, stating that no conditions exist that would preclude the Parent
from being a Party to a business combination for which the pooling of interest
method of accounting would be available under Opinion 16 of the Accounting
Principles Board and applicable SEC rules and regulations (as such criteria
relate to the Parent and not Company.) Such letter shall be subject to customary
qualifications and assumptions.
SECTION 5.7. Affiliates; Lockup Agreements.
(a) Company hereby advises Parent that [Roger R. Mayer is
the sole person] who is an affiliate of the Company for purposes of Rule 145
under the Securities Act or for purposes of qualifying the Merger for pooling of
interests accounting treatment under Opinion 16 of the Accounting Principles
Board and applicable SEC rules and regulations. The Company shall use its
reasonable efforts to cause each such person to deliver to Parent on or prior to
the Closing Date a written agreement substantially in the form attached hereto
as Exhibit D (the "Company Affiliate Agreement").
(b) As it deems appropriate, Parent shall procure, on or
prior to the Effective Time, an affiliate letter in the form attached hereto as
Exhibit E executed by appropriate affiliates of the Parent (the "Parent
Affiliate Agreement").
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SECTION 5.8. Pooling of Interests. Each of the Company and Parent
will use reasonable efforts to cause the transactions contemplated by this
Agreement, including the Merger, to be accounted for as a pooling of interests
under Opinion 16 of the Accounting Principles Board and applicable SEC rules and
regulations, and such accounting treatment to be accepted by each of the
Company's and Parent's independent public accountants, and by the SEC,
respectively, and each of the Company and Parent agrees that it well voluntarily
take no action that would cause web accounting treatment not to be obtained.
SECTION 5.9. Tax Treatment. Each of Parent and the Company shall
not take any action and shall not fail to take any action which action or
failure to act would prevent, or would be reasonably likely to prevent, the
Merger from qualifying as a reorganization within the meaning of Section 368(a)
of the Code.
SECTION 5.10. FIRPTA. The Company shall deliver to the Internal
Revenue Service a notice that the Company Common Stock is not a "U.S. Real
Property Interest" as defined in and in accordance with the requirements of
Section 897 of the Code and the Treasury Regulations thereunder.
SECTION 5.11. NMS Listing. Parent shall use its reasonable efforts
to cause the shares of Parent Common Stock to be issued in the Merger to be
approved for listing on the Nasdaq Stock Market National Market, subject to
official notice of issuance, prior to the Closing Date.
SECTION 5.12. Stop Transfer. The Company shall not register the
transfer of any Certificate representing any Subject Shares (as defined in the
Shareholder Agreement), unless such transfer is made to Parent or Sub or
otherwise in compliance with the Shareholder Agreement. The Company will
inscribe upon any Certificate representing Subject Shares tendered by a
Shareholder (as defined in the Shareholder Agreement) for such purpose the
following legend: "THE SHARES OF COMMON STOCK, NO PAR VALUE, OF MANU-TRONICS,
INC. REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A SHAREHOLDER AGREEMENT
DATED AS OF MARCH 30, 1999, AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED, EXCEPT
IN ACCORDANCE THEREWITH. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT THE
PRINCIPAL EXECUTIVE OFFICES OF MANU-TRONICS, INC."
SECTION 5.13. Non-Competition Agreement. At the Effective Time, the
Company and Roger R. Mayer shall have executed a Non-Competition Agreement in
the form attached hereto as Exhibit F. Such Non-Competition Agreement shall
restrict Mr. Mayer from engaging in a business that is competitive with the
current business of the Company or of any of its subsidiaries for a 60-month
term after the Effective Time.
SECTION 5.14. Certain Tax Matters. Notwithstanding any other
provision in this Agreement to the contrary, the following covenants will
survive the Merger through the applicable statute of limitation from the date
hereof until the Effective Time; (i) the Company will file all Tax Returns and
reports ("Post-Signing Returns") required to be filed by it; (ii) the Company
will timely pay all Taxes due and payable with respect to such Post-Signing
Returns that are so filed; (iii) the Company will make provision for all fares
payable by the Company for which no Post-Signing
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Return is due prior to the Effective Time; (iv) the Company will promptly notify
Parent of any action, suit, proceeding, claim or audit (collectively, "Actions")
pending against or with respect to the Company in respect of any Tax where there
is a reasonable possibility of a determination or decision which would have a
material adverse effect on the Company's Tax liabilities or Tax attributes and
will not settle or compromise any such Action without Parent's consent; and (v)
the Company will not make any material Tax election.
SECTION 5.15. Reasonable Efforts; Notification.
(a) Upon the terms and subject to the conditions set
forth in this Agreement, each of the parties agrees to use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the mot
expeditious manner practicable, the Merger and the other transactions
contemplated by this Agreement, including (i) the obtaining of all necessary
actions or nonactions, waivers, consents and approvals from Governmental
Entities and the making of all necessary registrations and filings (including
filings with Governmental Entities, if any) and the taking of all reasonable
steps as may be necessary to avoid an action or proceeding by any Governmental
Entity, (ii) the obtaining of all necessary consents, approvals of waivers from
third parties, (iii) the defending of any lawsuits or other legal proceedings,
whether judicial or administrative, challenging this Agreement or the
consummation of the transactions contemplated hereby, including seeking to have
any stay or temporary restraining order entered by any court or other
Governmental Entity vacated or reversed and (iv) the execution and delivery of
any additional instruments necessary to consummate the transactions contemplated
by, and to fully carry out the purposes of this Agreement. In connection with
and without limiting the foregoing, the Company and its Board of Directors
shall, if any state takeover statute or similar statute or regulation is or
becomes applicable to the Merger, this Agreement, the Shareholder Agreement or
any other transactions contemplated by this Agreement or the Shareholder
Agreement, use all reasonable efforts to ensure that the Merger and the other
transactions contemplated by this Agreement may be consummated as promptly as
practicable on the term contemplated by this Agreement and otherwise to minimize
the effect of such statute or regulation on the Merger, this Agreement, the
Shareholder Agreement and the other transaction contemplated by this Agreement
or the Shareholder Agreement. Nothing in this Agreement shall be deemed to
require Parent to dispose of any significant asset or collection of assets.
(b) The Company shall give prompt notice to Parent of (i)
any representation or warranty made by it contained in this Agreement that is
qualified as to materiality becoming untrue or inaccurate in any respect or any
such representation or warranty that is not so qualified becoming untrue or
inaccurate in any material respect or (ii) the failure by it to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement; provided, however, that
no such notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the parties
under this Agreement.
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SECTION 5.16. Fees and Expenses. All fees and expenses incurred in
connection with the Merger, this Agreement and the transactions contemplated by
this Agreement shall be paid by the party incurring such fees or expenses,
whether or not the Merger is consummated, except that legal, accounting,
financial advisory and other transactional expenses incurred by the Company
shall be paid by the shareholders of the Company and shall not be paid by, or
otherwise become an obligation or liability of, the Company except accounting
fees for tax preparation for the year ended September 27, 1998 and for the
period from that date to the close of the S corporation tax year.
SECTION 5.17. Executive Compensation Matters. Parent shall enter
into an employment agreement with Roger R. Mayer in the form attached hereto as
Exhibit G. Parent shall grant to Mr. Mayer a nonstatutory option to purchase
50,000 shares of Parent Common Stock at a purchase price equal to the fair
market value of Parent Common Stock at the date of grant. Such stock option
shall vest over a five year period, with one fifth of such shares vesting one
year after the Closing Date and the remaining shares vesting in equal monthly
installments thereafter.
SECTION 5.18. Facility Lease. At the Effective time, Parent and
Roger R. Mayer shall have executed a Lease Agreement in the form attached hereto
as Exhibit H for the land and buildings comprising the Company's principal
facility.
SECTION 5.19. S Corporation Tax Matters. Notwithstanding any other
provision in this Agreement to the contrary, the following covenants will
survive the Merger through the expiration of the applicable statutes of
limitations:
(a) The Company shall maintain its tax status as an S
corporation up to the Closing Date, and the Stockholders, as defined below,
shall not revoke or otherwise terminate the election of the Company to be
treated as an S corporation.
(b) The Company shall allocate, and the Stockholders
agree to so allocate, tax items to its S corporation taxable year ending upon
the Closing Date and to its C corporation taxable year beginning upon the
Closing Date pursuant to normal tax accounting rules (the "closing of the books"
method), rather than by the pro rata allocation method contained in Section
1362(e)(2) of the Code. The Company and each of the Stockholders agree to take
all actions and make all elections and consents described pursuant to Treasury
Regulation Section 1.1362-6 that may be necessary to use the closing of the
books method.
(c) The shareholders of the Company shall be responsible
for timely filing all federal and state Tax returns of the Company for taxable
periods ending on or prior to the Effective Time of the Merger and have paid or
will pay all income taxes attributable to the income of the Company for such
periods. Such return swill be prepared and filed in accordance with applicable
law and in a manner consistent with past practices and shall be subject to prior
review and approval by Parent. After the Effective Time of the Merger, Parent
and the Company, on the one hand, and the shareholders of the Company, on the
other hand, will make available to the other, as reasonably requested, all
information, records or documents relating to the liability for Taxes of the
Company for all periods ending on or prior to the Effective Time of the Merger
and will preserve such
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information records or documents until the expiration of any applicable statute
of limitations or extensions thereof.
(d) Each of the holders of Company Common Stock set forth
on Section 2.3 of the Company Disclosure Schedule (the "Stockholders") hereby
indemnifies and agrees to hold the Company harmless from, against and in respect
for any U.S. federal or state income Tax liability (including interest and
penalties), if any, resulting from the Company failing to qualify as an S
corporation under Section 1361(a)(1) of the Code or any state counterpart as
enacted and in effect prior to the Closing Date, for every taxable year on or
before the Closing Date as to which the Company filed or files Tax returns
claiming status as an S corporation.
(e) If the Stockholders are required to make any payment
under Section 5.19(b), such Stockholders shall make such payment within thirty
(30) days after the final determination (as such term is defined in Section
1313(a) of the Code) of any Tax liability resulting in a claim for
indemnification.
(f) The Company shall be entitled to any refund of Taxes
imposed on the Company, provided, that if the Stockholders are required to make
any payments pursuant to Section 5.19(b) hereof and the Company thereafter
receives a refund of any Taxes to which such payments relate, the Company,
within ten (10) days of receipt of such refund, shall pay over to the
Stockholders their pro rata portion of any refund, including any interest
received with respect thereto.
ARTICLE VI
CONDITIONS PRECEDENT TO THE MERGER
SECTION 6.1. Conditions to Obligations of Each Party to Effect the
Merger. The respective obligation of each party to effect the merger is subject
to the satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) Shareholder Approval. This Agreement shall have been
approved and adopted by the shareholders of the Company.
(b) National Market Listing. The shares of Parent Company
Stock issuable to the Company's shareholders pursuant to this Agreement shall
have been approved for listing on the Nasdaq Stock Market National Market,
subject to official notice of issuance.
(c) HSR Act. The waiting period (and any extension
thereof) applicable to the Merger under the HSR Act shall have been terminated
or shall have expired.
(d) No Injunctions or Restraints. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the Merger shall be in effect.
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SECTION 6.2. Additional Conditions to Obligation of the Company.
The obligations of the Company to effect the Merger is further subject to the
following conditions:
(a) Representations and Warranties. The representations
and warranties of Parent and Sub set forth in this Agreement that are qualified
as to materiality shall be true and correct, and the representations and
warranties of Parent and Sub set forth in this Agreement that are not so
qualified shall be true and correct in all material respects, in each case as of
the date of this Agreement and as of the Closing Date as though made on and as
of the Closing Date, except as otherwise contemplated by this Agreement.
(b) Performance of Obligations of Parent and Sub. Parent
and Sub shall have performed in all material respects all obligations required
to be performed by them under this Agreement at or prior to the Closing Date.
SECTION 6.3. Additional Conditions to Obligations of Parent and
Sub. The obligations of Parent and Sub to effect the Merger are further subject
to the following conditions:
(a) Representations and Warranties. The representations
and warranties of the Company set forth in this Agreement that are qualified as
to materiality shall be true and correct, and the representations and warranties
of the Company set forth in this Agreement that are not so qualified shall be
true and correct in all material respects, in each case as of the date of the
Agreement and as of the Closing Date as though made on and as of the Closing
Date, except as otherwise contemplated by this Agreement.
(b) Performance of Obligations of the Company. The
Company shall have performed in all material respects all obligations required
to be performed by it under this Agreement at or prior to the Closing Date.
(c) Ancillary Agreements. Parent shall have received
executed copies of the agreements contemplated by Sections 5.7, 5.13 and 5.18
hereof.
(d) No Litigation. There shall not be pending or
threatened any suit, action or proceeding by any Governmental Entity, (i)
challenging the acquisition by Parent or Sub of any shares of Company Common
Stock, seeking to restrain or prohibit the consummation of the Merger, seeking
to place limitations on the ownership of shares of Company Common Stock (or
shares of common stock of the Surviving Corporation) by Parent or Sub or seeking
to obtain from the Company, Parent or Sub any damages that are material in
relation to the Company, (ii) seeking to prohibit or limit the ownership or
operation by the Company, Parent or any of Parent's subsidiaries of any material
portion of any business or of any assets of the Company, Parent or any of
Parent's subsidiaries, or to compel the Company, Parent or any of Parent's
subsidiaries to dispose of or hold separate any material portion of any business
or of any assets of the Company, Parent or any of Parent's subsidiaries, as a
result of the Merger or (iii) seeking to prohibit Parent or any of its
subsidiaries from effectively controlling in any material respect the business
or operations of the Company.
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(e) No Material Adverse Change. At any time on or after
the date of this Agreement until the time of the Closing there shall not have
occurred any material adverse change (as defined in Section 9.2) in the business
properties, assets, liabilities (contingent or otherwise), financial condition
or results of operations of the Company.
(f) Pooling Letters. Parent and the Company shall have
received letters from Arthur Andersen LP and Donald Tushaus & Co., dated as of
the Closing Date, addressed to Parent and the Company, respectively, stating in
substance that the Merger will qualify as a pooling of interests transaction
under Opinion 16 of the Accounting Principles Board and applicable SEC rules and
regulations.
(g) Dissenter's Rights. No shareholders of Company shall
have exercised dissenters' rights of appraisal under the Wisconsin Law.
(h) Indemnification Agreement. Roger R. Mayer, an
individual, and Roger R. Mayer, as Trustee of The Roger R. Mayer Revocable
Living Trust Dated 10/2/96, shall have executed the Indemnification Agreement in
the form attached hereto as Exhibit I.
ARTICLE VII
SURVIVAL, ESCROW AND INDEMNIFICATION
SECTION 7.1. Survival of Representations and Warranties. Except
for Sections 2.14, 5.14 and 5.19 which shall survive the Merger through the
expiration of the applicable statutes of limitations, all of Parent's and the
Company's representations and warranties in this Agreement or in any instrument
delivered pursuant to this Agreement (each as modified by the Parent/Sub
Disclosure Schedule and the Company Disclosure Schedule, respectively) shall
survive the Merger and continue until the date which is 12 months following the
Closing Date (the "Expiration Date").
(a) Escrow Fund. At the Effective Time, the holders of
Consideration Common Shares will be deemed to have received and deposited with
the Escrow Agent the Escrow Amount (plus any additional shares as may be issued
upon any stock split, stock dividend or recapitalization effected by Parent
after the Effective Time) without any act of any shareholder. As soon as
practicable after the Effective Time, the Escrow Amount, without any act of any
shareholder, will be deposited with the Escrow Agent, such deposit to constitute
an escrow fund (the "Escrow Fund") to be governed by the terms set forth herein
(and in the Escrow Agreement) and at Parent's cost and expense. The Escrow Fund
shall be available to compensate Parent and its affiliates for any claims,
losses, liabilities, damages, deficiencies, costs and expenses, including
reasonable attorney's fees and expenses and expenses of investigation and
defense (hereinafter individually a "Loss" and collectively, "Losses") incurred
by Parent, its officers, directors, agents. employees, shareholders or
affiliates (including the Surviving Corporation) directly or indirectly as a
result of (i) any inaccuracy or breach of a representation of the Company
contained herein (as modified by the Company Disclosure Schedule and without
regard to any materiality qualification in individual representations. or
warranties), or (ii) any failure by the Company to perform or comply with any
covenant contained herein. Parent and the Company each acknowledge that such
Losses, if any, would relate to unresolved contingencies existing at the
Effective Time, which if resolved at the Effective Time
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would have led to a reduction in the Merger Consideration. Parent may not
receive any shares from the Escrow Fund unless and until Officer's Certificates
(as defined in Section 7.2(d) below) identifying Losses have been delivered to
the Escrow Agent as provided in Section 7.2(e).
(b) Escrow Period; Distribution upon Termination of
Escrow Periods. Subject to the following requirements, the Escrow Fund shall be
in existence immediately following the Effective Time and shall terminate as
provided in Section 7.3(b) (the "Escrow Period"); provided that the Escrow
Period shall not terminate with respect to such amount (or some portion thereof)
that, together with the aggregate amount remaining in the Escrow Fund is
necessary in the reasonable judgment of Parent, subject to the objection of the
Shareholder Agent in the manner provided in Section 7.2(d), to satisfy any
unsatisfied Losses concerning facts and circumstances existing prior to the
termination of such Escrow Period specified in any Officer's Certificate
delivered to the Escrow Agent prior to termination of such Escrow Period. As
soon as all such claims have been resolved, the Escrow Agent shall deliver to
the holders of Shares the remaining portion of the Escrow Fund not required to
satisfy such claims. Deliveries of Escrow Amounts to the holders of Shares
pursuant to this Section 7.2(b) shall be made in proportion to their respective
original contributions to the Escrow Fund.
(c) Protection of Escrow Fund.
(i) The Escrow Agent shall hold and safeguard
the Escrow Fund during the Escrow Period, shall treat such fund as a trust fund
in accordance with the terms of this Agreement and not as the property of Parent
and shall hold and dispose of the Escrow Fund only in accordance with the terms
hereof.
(ii) Any shares of Parent Common Stock or other
equity securities issued or distributed by Parent (including shares issued upon
a stock split, stock dividend or recapitalization) ("New Shares") in respect of
Parent Common Stock in the Escrow Fund which have not been released from the
Escrow Fund shall be added to the Escrow Fund and become a part thereof. New
Shares issued in respect of shares of Parent Common Stock which have been
released from the Escrow Fund shall not be added to the Escrow Fund but shall be
distributed to the recordholders thereof. Cash dividends on Parent Common Stock
shall not be added to the Escrow Fund but shall be distributed to the
recordholders thereof.
(iii) Each shareholder shall have voting rights
with respect to the shares of Parent Common Stock contributed to the Escrow Fund
by such shareholder (and on any voting securities added to the Escrow Fund in
respect of such shares of Parent Common Stock).
(d) Claims Upon Escrow Fund.
(i) Upon receipt by the Escrow Agent at any time
on or before the last day of the Escrow Period of a certificate signed by any
officer of Parent (an "Officer's Certificate"): (A) stating that Parent has paid
or properly accrued or reasonably anticipates that it will have to pay or accrue
Losses, and (B) specifying in reasonable detail the individual items of Losses
included in the amount so stated, the date each such item was paid or properly
accrued, or the basis for such
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anticipated liability, and the nature of the misrepresentation, breach of
warranty or covenant to which such item is related, the Escrow Agent shall,
subject to the provisions of Section 7.2(e) hereof, deliver to Parent out of the
Escrow Fund, as promptly as practicable, shares of Parent Common Stock held in
the Escrow Fund in an amount determined pursuant to Section 7.2(d)(ii) equal to
such Losses.
(ii) For the purposes of determining the number
of shares of Parent Common Stock to be delivered to Parent out of the Escrow
Fund pursuant to Section 7.2(d)(i), the shares of Parent Common Stock shall be
valued at the Average Stock Price (as defined below). The "Average Stock Price"
shall equal the average of the last reported sale prices of the Parent's Common
Stock, as quoted on the Nasdaq National Market, over the ten (10) trading days
ending on the day prior to which shares of Parent Common Stock are to be
delivered to Parent in satisfaction of indemnification claims.
(e) Objections to Claims. At the time of delivery of any
Officer's Certificate to the Escrow Agent, a duplicate copy of such certificate
shall be delivered to the Shareholder Agent and for a period of thirty (30) days
after such delivery, the Escrow Agent shall make no delivery to Parent of any
Escrow Amounts pursuant to Section 7.2(d) unless the Escrow Agent shall have
received written authorization from the Shareholder Agent to make such delivery.
After the expiration of such thirty (30) day period, the Escrow Agent shall make
delivery of shares of Parent Common Stock from the Escrow Fund in accordance
with Section 7.2(d), provided that no such payment or delivery may be made if
the Shareholder Agent shall object in a written statement to the claim made in
the Officer's Certificate, and such statement shall have been delivered to the
Escrow Agent prior to the expiration of such thirty (30) day period.
(f) Resolution of Conflicts. In case the Shareholder
Agent shall so object, in writing to any claim or claims made in any Officer's
Certificate, the Shareholder Agent and Parent shall attempt in good faith to
agree upon the rights of the respective parties with respect to each of such
claims. If the Shareholder agent and Parent should so agree, a memorandum
setting forth such agreement shall be prepared and signed by both parties and
shall be furnished to the Escrow Agent. The Escrow Agent shall be entitled to
rely on any such memorandum and distribute shares of Parent Common Stock from
the Escrow Fund in accordance with the terms thereof. If no such agreement can
be reached after good faith negotiation, either Parent and the Shareholder Agent
will participate in a mutually agreeable form of non-binding mediation for a
period of up to 60 days. Each party shall bear its own costs and expenses of
such mediation, and each party shall pay one-half of the costs and fees of the
mediator. If no resolution can be achieved during such 60-day period, the
parties may seek legal remedies in accordance with Section 9.8 hereof.
(g) Shareholder Agent; Power of Attorney.
(i) In the event that the Merger is approved,
effective upon such vote, and without further act of any shareholder, Roger R.
Mayer shall be appointed as agent and attorney-in-fact (the "Shareholder Agent")
for each holder of Consideration Common shares, for and on behalf of
shareholders, to execute the Escrow Agreement, to give and receive notices and
communications, to authorize delivery to Parent of shares of Parent Common Stock
from the Escrow Fund in
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satisfaction of claims by Parent, to object to such deliveries, to agree to,
negotiate, enter into settlements and compromises of, and demand arbitration and
comply with orders of courts and awards of arbitrators with respect to such
claims, and to take all actions necessary or appropriate in the judgment of
Shareholder Agent for the accomplishment of the foregoing. Such agency may be
changed by the holders of Shares prior to the Effective Time, and after the
Effective Time by the former holders of Shares as of the Effective Time from
time to time upon not less than thirty (30) days prior written notice to Parent;
provided that the Shareholder Agent may not be removed unless holders of a
two-thirds interest of the Escrow Fund agree to such removal. Any vacancy in the
position of Shareholder Agent may be filled by approval of the holders of a
majority in interest in the Escrow Fund. No bond shall be required of the
Shareholder Agent, and the Shareholder Agent shall not receive compensation for
his or her services. Notices or communications to or from the Shareholder Agent
shall constitute notice to or from each of the holders of Shares.
(ii) The Shareholder Agent shall not be liable
for any act done or omitted hereunder as Shareholder Agent while acting in good
faith and in the exercise of reasonable judgment. The shareholders of the
Company on whose behalf the Escrow Amount was contributed to the Escrow Fund
shall severally indemnify the Shareholder Agent and hold the Shareholder Agent
harmless against any loss, liability or expense incurred without negligence or
bad faith on the part of the Shareholder Agent and arising out of or in
connection with the acceptance or administration of the Shareholder Agent's
duties hereunder, including the reasonable fees and expenses of any legal
counsel retained by the Shareholder Agent.
(h) Actions of the Shareholder Agent. A decision, act,
consent or instruction of the Shareholder Agent shall constitute a decision of
all the holders of Shares for whom a portion of the Escrow Amount otherwise
issuable to them are deposited in the Escrow Fund and shall be final, binding
and conclusive upon each of such shareholders, and the Escrow Agent and Parent
may rely upon any such decision, act, consent or instruction of the Shareholder
Agent as being the decision, act, consent or instruction of each and every such
shareholder of the Company. The Escrow Agent and Parent are hereby relieved from
any liability to any person for any acts done by them in accordance with such
decision, act, consent or instruction of the Shareholder Agent.
(i) Third-Party Claims. In the event Parent becomes aware
of a third-party claim which Parent believes may result in a demand against the
Escrow Fund, Parent shall notify the Shareholder Agent of such claim, and the
Shareholder Agent, as representative for the holders of Shares, shall be
entitled, at their expense, to participate in any defense of such claim. Parent
shall have the right in its sole discretion to settle any such claim; provided,
however, that except with the consent of the Shareholder Agent which shall not
be unreasonably withheld, no settlement of any such claim with third-party
claimants shall alone be determinative of the amount of any claim against the
Escrow Fund. In the event that the Shareholder Agent has consented to any such
settlement and acknowledged that the claim is a valid claim against the Escrow
Fund, the Shareholder Agent shall have no power or authority to object under any
provision of this Section 7.2 to the amount of any claim by Parent against the
Escrow Fund with respect to such settlement.
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(j) Escrow Agent's Duties. The Escrow Agent shall be
obligated only for the performance of such duties as are specifically set forth
in the Escrow Agreement.
(k) Fees.
SECTION 7.2. Limitation of Remedies.
(a) Except for Sections 2.14, 5.14 and 5. 19, which shall
survive the Merger through the expiration of the applicable statutes of
limitations and which shall not be subject to the limitation of remedies set
forth in this Section 7.2, Parent and Sub acknowledge and agree that, in the
event the Merger is completed, the indemnification provisions in this Section
7.2 shall be the exclusive remedy of Parent and Sub for Losses described in
Section 7.2, except in the event of fraud, including both active fraud and
fraudulent concealment by the Company, its officers, directors, employees,
agents or one or more former shareholder(s) of the Company against whom recovery
for such fraud is sought.
(b) At the six (6) month anniversary of the Effective
Time, an amount equal to (X) one-half of the number of shares of Parent Common
Stock in the Escrow Fund minus (Y) the number of shares of Parent Common Stock
which are, at such date, claimed by Parent to be deliverable to Parent in
satisfaction of claims identified in Officer's Certificates minus (Z) the number
of shares of Parent Common Stock which have, as of such date, been delivered to
Parent from the Escrow Fund in satisfaction of claims shall be released from the
Escrow Fund to the record holders of such shares of Parent Common Stock. At the
one-year anniversary of the Effective Time, the escrow shall terminate and all
shares in the Escrow Fund, except shares that have been delivered to Parent
under Article VII or, the number of shares of Parent Common Stock which are, at
such date, claimed by Parent to be deliverable to Parent in satisfaction of
claims identified in Officers' Certificates, shall be distributed to the former
Company shareholders.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1. Termination. This Agreement may be terminated. and
the Merger contemplated hereby may be abandoned, at any time prior to the
Effective Time, whether before or after approval of matters presented in
connection with the Merger by the shareholders of the Company:
(a) by mutual written consent of Parent, Sub and the
Company;
(b) by either Parent or the Company:
(i) if the Merger shall not have been
consummated by March 30, 1999 for any reason, provided, however, that the right
to terminate this Agreement under this Section 8.1(b)(i) shall not be available
to any party whose action or failure to act has been a principal cause of or
resulted in the failure of the Merger to occur on or before such date and such
action or failure to act constitutes a willful and material breach of this
Agreement;
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(ii) if any Restraint having any of the effects
set forth in Section 6.1(d) shall be in effect and shall have become final and
nonappealable.
(c) by the Company, upon a breach of any representation,
warranty, covenant or agreement on the part of Parent set forth in this
Agreement, or if any such representation or warranty or Parent shall have become
inaccurate, in either case such that the conditions set forth in Section 6.2(a)
or Section 6.2(b), as the case may be, would not be satisfied as of the time of
such breach or as of the time such representation or warranty shall have become
inaccurate; provided, that if such inaccuracy in Parent's representations and
warranties or breach by Parent is curable by Parent through the exercise of its
reasonable efforts, then (i) the Company may not terminate this Agreement under
this Section 8.1(c) with respect to a particular breach or inaccuracy prior to
or during the 45-day period commencing upon delivery by the Company of written
notice to Parent describing such breach or inaccuracy, provided Parent continues
to exercise reasonable efforts to cure such breach or inaccuracy and (ii) the
Company may not, in any event, terminate this Agreement under this Section
8.1(c) if such inaccuracy or breach shall have been cured in all material
respects during such 45-day period; and, provided further that the Company may
not terminate this Agreement pursuant to this Section 8.1(c) if it shall have
willfully and materially breached this Agreement; or
(d) by Parent, upon a breach of any representation,
warranty, covenant or agreement on the part of the Company set forth in this
Agreement, or if any such representation or warranty of the Company shall have
become inaccurate, in either case such that the conditions set forth in Section
6.3(a) or Section 6.3(b), as the can may be, would not be satisfied as of the
time of such breach or as of the time such representations and warranties or
breach by the Company is curable by the Company through the exercise of its
reasonable efforts, then (i) Parent may not terminate this Agreement under this
Section 8.1(d) with respect to a particular breach or inaccuracy prior to or
during the 45-day period commencing upon delivery by Parent of written notice to
the Company describing such breach or inaccuracy, provided the Company continues
to exercise reasonable efforts to cure such breach or inaccuracy and (ii) Parent
may not, in any event, terminate this Agreement under this Section 8.1(d) if
such inaccuracy or breach have been cured in all material respects during such
45-day period; and, provided further that Parent may not terminate this
Agreement pursuant to this Section 8.1(d) if it shall have willfully and
materially breached this Agreement.
SECTION 8.2. Effect of Termination. In the event of termination of
this Agreement by either the Company or Parent as provided in Section 8.1, this
Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of Parent, Sub or the Company, other than the
provisions of the last sentence of Section 5.3, Section 5.5, Section 5.6, this
Section 8.2 and Article VIII and except to the extent that such termination
results from the willful and material breach by a party of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
SECTION 8.3. Amendment. This Agreement may be amended by the
parties hereto at any time before or after any required approval of matters
presented in connection with the Merger by
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the shareholders of the Company; provided, however, that after any such approval
there shall be made no amendment that by law requires further approval by such
shareholders without the further approval of such shareholders. This Agreement
may not be amended except by an instrument in writing signed on behalf of each
of the parties hereto.
SECTION 8.4. Extension; Waiver. At any time prior to the Effective
Time, the parties may (a) extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties contained herein or in any document delivered
pursuant hereto or (c) subject to the proviso of Section 8.3, waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party to any such extension or waiver shall be valid only if set forth
in an instrument in writing signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of such rights.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of delivery)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
if to Parent or Sub, to:
Sanmina Corporation
355 East Trimble Road
San Jose, California 95131
Attention: Randy Furr, President
with a copy to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
Attention: Christopher D. Mitchell
if to the Company, to:
Manu-tronics, Inc.
8701 100th Street
Kenosha, Wisconsin 53142
Attention: Roger R. Mayer
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with a copy to:
O'Connor & Willems, S.C.
6633 Green Bay Road
Kenosha, WI 53142
Attention: Cletus Willems
SECTION 9.2. Definitions. For purposes of this Agreement:
an "affiliate" of any person means another person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person;
"material adverse change" or "material adverse effect" means,
when und in connection with the Company or Parent, any change or effect (or any
development that insofar as can reasonably be foreseen, is likely to result in
any change or effect) that is materially adverse to the business, properties,
assets, liabilities (contingent or otherwise), financial condition or results of
operations of either the Company and its subsidiaries or Parent and its
subsidiaries, taken as a whole, as the case may be;
a "person" means an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization of other entity;
and
a "subsidiary" of any person means another person, an amount
of the voting securities, other voting ownership or voting partnership interests
of which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, 50% or more of
the equity interests of which) is owned directly or indirectly by such first
person.
SECTION 9.3. Interpretation. When a reference is made in this
Agreement to a Section, Exhibit or Schedule, such reference shall be to a
Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
SECTION 9.4. Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties.
SECTION 9.5. Entire Agreement; No Third-Party Beneficiaries. This
Agreement, the Exhibits hereto and the ancillary agreements contemplated hereby
constitute the entire agreement, and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement and such Exhibits and ancillary agreements.
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SECTION 9.6. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Wisconsin, regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
SECTION 9.7. Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties, except that Sub may assign, in its sole
discretion, any of or all its rights, interests and obligations under this
Agreement to Parent or to any direct or indirect wholly owned subsidiary of
Parent, but no such assignment shall relieve Sub of any of its obligations
hereunder. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
SECTION 9.8. Enforcement. The parties agree that irreparable
damage would occur in the even that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breached of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of the
United States located in the State of Wisconsin or in any Wisconsin state court,
this being in addition to any other remedy to which they are entitled at law or
in equity. In addition, each of parties hereto (a) consents to submit itself to
the personal jurisdiction of any court of the United States located in the State
of Wisconsin or of any Wisconsin state court in the event any dispute arises out
of this Agreement or the transactions contemplated by this Agreement, (b) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court and (c) agrees that it will not
bring any action relating to this Agreement or the transactions contemplated by
this Agreement in any court other than a court of the United States located in
the State of Wisconsin or a Wisconsin state court.
SECTION 9.9. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the fullest
extent permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
[The remainder of this page intentionally left blank.]
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ARTICLES OF INCORPORATION
OF
SANM ACQUISITION SUBSIDIARY, INC.
STOCK (FOR PROFIT) CORPORATION
Executed by the undersigned for the purpose of forming a Wisconsin for-profit
corporation under Chapter 180 of the Wisconsin Statutes repealed and recreated
by 1989 Wis. Act 303:
ARTICLE I
The name of this corporation is SANM ACQUISITION SUBSIDIARY, INC.
ARTICLE II
The corporation is authorized to issue one class of shares to be
designated "Common Stock". The number of shares of Common Stock authorized to be
issued is One Thousand (1,000).
ARTICLE III
The street address of the initial registered office in the State of
Wisconsin is 44 East Mifflin Street, Madison, Wisconsin 53703.
ARTICLE IV
The name of the initial registered agent at the above registered office
is CT Corporation System.
ARTICLE V
The name and complete address of the incorporator are as follows:
RoseAnn M. Rotandaro
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Executed on March 10, 1999.
/s/ RoseAnn M. Rotandaro
-------------------------------
RoseAnn M. Rotandaro,
Incorporator
This document was not drafted in Wisconsin.
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
SANMINA CORPORATION
By: /s/ Randy W. Furr
-----------------------------
Name: Randy W. Furr
Title: President
SANM ACQUISITION SUBSIDIARY, INC.
By: /s/ Randy W. Furr
-----------------------------
Name: Randy W. Furr
Title: President
MANU-TRONICS, INC.
By: /s/ Roger R. Mayer
-----------------------------
Name: Roger R. Mayer
Title: President
SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER
DATED AS OF MARCH 30, 1999 AMONG
SANMINA CORPORATION, SANM ACQUISITION SUBSIDIARY, INC.
AND MANU-TRONICS, INC.
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