EXHIBIT 10.43
SHARE PURCHASE AGREEMENT
Among
ETEC SYSTEMS Inc.,
SXR-2 Vermogensverwaltungsgesellschaft mbH,
Ebetech Electron Beam Technology Vertriebs GmbH
and
THE SELLING SHAREHOLDERS NAMED HEREIN
March 13/14, 1997
INHALTSVERZEICHNIS
ARTICLE 1
PURCHASE AND SALE 1
1.1 Purchase and Sale of Shares 1
ARTICLE 2
CLOSING 2
2.1 Closing Date 2
2.2 Transfer of Shares and Term Debt 2
2.3 Additional Payment 2
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS 2
3.1 Organization 3
3.2 Authority 3
3.3 Capital Structure 3
3.4 Financial Statements 4
3.5 Business Changes 5
3.6 Properties 6
3.7 Accounts Receivable; Notes Receivable 7
3.8 Taxes 7
3.9 Compliance with Law 8
3.10 Litigation 8
3.11 Contracts 9
3.12 Operating Leases 10
3.13 No Default 10
3.14 Business and Customers 10
3.15 Inventories and Work in Progress 10
3.16 Proprietary Rights 11
3.17 CE Mark Certification 12
3.18 Insurance 12
3.19 Bank Accounts 13
3.20 Brokers or Finders 13
3.21 Related Parties 13
3.22 Certain Advances 13
3.23 Employee Benefit Plans 14
3.24 Underlying Documents 14
3.25 Full Disclosure 14
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ETEC AND ETEC SUB 14
4.1 Organization 14
4.2 Authority 14
4.3 Brokers or Finders 15
4.4 Full Disclosure 15
ARTICLE 5
COVENANTS RELATING TO CONDUCT OF BUSINESS 16
5.1 Conduct of Business in Normal Course 16
5.2 Preservation of Business and Relationships 16
5.3 Maintenance of Insurance 16
5.4 Employees and Compensation 16
5.5 Dividends; Changes in Stock 16
5.6 Issuance of Securities 17
5.7 Governing Documents 17
5.8 No Other Bids 17
5.9 No Acquisitions 17
5.10 No Dispositions 17
5.11 Indebtedness 17
ARTICLE 6
ADDITIONAL AGREEMENTS 17
6.1 Access to Information 17
6.2 Legal Conditions 18
6.3 Good Faith 18
ARTICLE 7
CONDITIONS PRECEDENT 18
7.1 Conditions to Obligations of Etec, Etec Sub and Sellers 18
(a) Government Approvals 18
(b) Third-Party Approvals 18
(c) Legal Action 19
7.2 Conditions to Obligations of Etec and Etec Sub 19
(a) Representations and Warranties 19
(b) Performance of Obligations 19
(c) No Material Adverse Change 19
(d) Patents 19
7.3 Conditions to Obligations of Sellers 19
(a) Representations and Warranties 19
(b) Performance of Obligations of Etec and Etec Sub 20
ARTICLE 8
INDEMNIFICATION 20
8.1 Indemnification by Sellers 20
8.4 Indemnification by Etec 21
ARTICLE 9
PAYMENT OF EXPENSES 22
ARTICLE 10
TERMINATION, AMENDMENT AND WAIVER 22
10.1 Termination 22
10.2 Amendment 22
10.3 Extension; Waiver 22
ARTICLE 11
GENERAL 23
11.1 Notices 23
11.2 Announcements 23
11.3 Headings 23
11.4 Counterparts 23
11.5 Binding Nature 24
11.6 Schedules 24
11.7 Applicable Law 24
SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement") is made and entered into as
of the 14th day of March, 1997, by and among ETEC SYSTEMS, INC., a Nevada
corporation ("Etec") and SXR-2 Vermogensverwaltungsgesellschaft mbH, a
wholly-owned subsidiary of Etec, (in the future: ETEC SYSTEMS EUROPE (GmbH), a
company organized under the laws of the Federal Republic of Germany ("Etec
Sub"), on the one hand, and VCB VENTURE CAPITAL BETEILIGUNGSGESELLSCHAFT mbH,
MUNICH, a corporation organized under the laws of the Federal Republic of
Germany ("VCB"), MRS TECHNOLOGY INC., a Massachusetts corporation ("MRS"),
URSULA FAZEKAS, an individual, DR. MATTHIAS BRUNNER, an individual, DR.. RALF
SCHMID, an individual, THOMAS SCHWEDES, an individual, VOLKER DAIKER, an
individual, (each individually a "Seller" and collectively "Sellers"), and, as
to the provisions of Articles 5 and 6 hereof only, EBETECH ELECTRON BEAM
TECHNOLOGY VERTRIEBS GmbH, a corporation organized under the laws of the
Federal Republic of Germany ("Ebetech"), on the other hand.
Whereas Etec, either directly or through Etec Sub desires to acquire all of
the issued and outstanding shares (the "Shares") of share capital of Ebetech
as listed in Schedule 3.3.(d) in consideration of certain cash payments as
herein provided, all in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the premises and of the mutual provisions,
agreements and covenants herein contained, Etec, Etec Sub Sellers and Ebetech
agree as follows:
ARTICLE 1
PURCHASE AND SALE
1.1 Purchase and Sale of Shares.
(a) Subject to the terms and conditions set forth in this Agreement,
Etec and Etec Sub hereby agree to purchase from Sellers and Sellers hereby
agree to sell, convey, transfer and assign to Etec or Etec Sub, all of the
Shares and all claims of Sellers towards Ebetech in a total amount of DM
1,694,900 (hereinafter referred to as "Term Debt") as listed in Schedule 3.3
(d). The Shares shall be sold and conveyed to Etec or Etec Sub free and clear
of all mortgages, liens, pledges, charges, encumbrances, equities, claims,
covenants, conditions or restrictions.
(b) As payment for the transfer of the Shares and the Term Debt to Etec
or Etec Sub, subject to and in accordance with Article 2, Etec or Etec Sub
shall pay to Sellers cash in the sum of Five Million dollars (US$5,000,000)
(hereinafter referred to as "Purchase Price") being allocated as follows:
aa) US$ 4,008,483.50 for the purchase of the Shares and
bb) US$ 991,516.50 for the purchase of the Term Debt
which shall be paid in accordance with Sections 2.2 and 2.3.
ARTICLE 2
CLOSING
2.1 Closing Date. The Closing under this Agreement (the "Closing") shall be
held on March 14, 1997, unless any condition to Closing has not been satisfied
or waived, in which event the Closing shall be on a date agreed by the parties
as soon as reasonably practicable thereafter. The date on which the Closing is
to be held is herein referred to as the "Closing Date." The Closing shall be
held at LeopoldstraBe 28a, Munich at the offices of the Notary Public Dr..
Karl, at 01.00 P.M. on such date, or at such other time and place as Etec,
Ebetech and Sellers may agree upon in writing.
2.2 Transfer of Shares and Term Debt. Sellers hereby transfer and assign and
Etec Sub hereby accepts such transfer and assignment of the Term Debt. At the
Closing, Sellers shall transfer and assign the Shares to Etec Sub by notarial
deed. Etec shall at Closing pay cash to Sellers in the amount of the Purchase
Price less Five Hundred Thousand U.S. dollars (US$500,000) being allocated to
Sellers as shown in Schedule 2.2. Such payments shall be made by wire
transfer to any account or accounts which Sellers have designated in Schedule
2.2.
2.3 Additional Payment. On December 15, 1997, Etec shall pay cash to Sellers
in the amount of Five Hundred Thousand U.S. dollars (US$500,000) (the
"Holdback Amount"), less any amounts which may then be due to any Etec
Indemnitee pursuant to Article 8 hereof. If on said date there is pending any
unliquidated claim of Etec or Etec Sub under Article 8, Etec shall make such
payment, less a reasonable estimate of the liquidated amount of such claim,
and, upon resolution of such claim, any net balance due Sellers shall be
promptly paid by Etec. All payments made under this section shall be
allocated to Sellers in a pro rata portion (% ownership in Ebetech) as shown
in Schedule 3.3 (d) and shall be made by any method which Sellers may
designate in writing.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby each separately represent and warrant to Etec and Etec Sub as
of the date hereof as follows:
3.1 Organization. Ebetech is a corporation duly organized, validly existing
and in good standing under the laws of the Federal Republic of Germany, and is
presently not required to be qualified to conduct business in any other
jurisdiction. Ebetech has all requisite power and authority to own, lease and
operate its properties and to carry on its business as now being conducted.
3.2 Authority. Sellers have all requisite power and authority to enter into
this Agreement and, subject to satisfaction of the conditions set forth
herein, to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate or other action (including spousal consents), where applicable, on
the part of Sellers. This Agreement has been duly executed and delivered by
Sellers, and constitutes the valid and binding obligation of Sellers,
enforceable in accordance with its terms, subject to the effect of applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
rights of creditors and the effect or availability of rules of law governing
specific performance, injunctive relief or other equitable remedies. Provided
the conditions set forth in Article 7 are satisfied, the execution and
delivery of this Agreement do not or will not, and the consummation of the
transactions contemplated hereby 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 under (a) any provision of the Articles of Incorporation or
Bylaws of Ebetech or any corporate Seller or (b) any material agreement or
instrument, permit, franchise, license, judgment or order, applicable to
Ebetech or its respective properties or assets.
No consent, approval, order or authorization of, or registration, declaration
or filing with, any court, administrative agency or commission or other
governmental authority, is required by or with respect to Ebetech or any
Seller in connection with the execution and delivery of this Agreement by
Ebetech or Sellers or the consummation by Ebetech or Sellers of the
transactions contemplated hereby or thereby, except for such consents,
approvals, orders, authorizations, registrations, declarations and filings as
may be required under applicable federal and state securities laws and the
laws of any foreign country. All consents of parties to agreements or
contracts with Ebetech required for the transfer of such contracts or
agreements are listed on Schedule 3.2 hereto.
3.3 Capital Structure.
(a) The authorized capital of Ebetech is DM 50,000, which consists of
seven (7) shares with the nominal values set forth in Schedule 3.3(d) hereto.
(b) Other than as described in paragraph (a) above, there are no other
outstanding shares or other equity securities of Ebetech and no other options,
warrants, calls, conversion rights, commitments or agreements of any character
to which Ebetech is a party or by which Ebetech may be bound that do or may
obligate Ebetech to issue, deliver or sell, or cause to be issued, delivered
or sold, additional shares of Ebetech's share capital or securities
convertible into or exchangeable for Ebetech's share capital or that do or may
obligate Ebetech to grant, extend or enter into any such option, warrant,
call, conversion right, commitment or agreement.
(c) Except under the Bylaws, none of the issued and outstanding Shares
are subject to repurchase or redemption. All outstanding shares of Ebetech are
validly issued, fully paid and not subject to preemptive rights of third
parties created by statute or any agreement to which Ebetech is a party or by
which Ebetech may be bound. All outstanding shares of Ebetech have been
issued in compliance with applicable laws.
(d) Schedule 3.3(d) contains complete and accurate lists of, and the
number of shares owned of record by, the holders of outstanding Shares,
including in each case the addresses of such holders and the breakdown of the
Term Debt owned by each Seller. Schedule 3.3(d) is complete and accurate on
Closing Date. Schedule 3.3(d) identifies the vesting schedule, applicable
legends, and repurchase rights or other risks of forfeiture of any outstanding
security of Ebetech.
(e) Schedule 3.3(e) contains a complete and accurate list of each stock
option plan, stock appreciation rights or other equity-related stock incentive
plan of Ebetech.
(f) Except for any restrictions imposed by applicable laws or the Bylaws
or Articles of Association of Ebetech, there is no right of first refusal,
co-sale right, right of participation, right of first offer, option or other
restriction on transfer applicable to any shares of Ebetech.
(g) Except for the Bylaws of Ebetech, neither Ebetech nor Sellers are a
party or subject to any agreement or understanding or voting trust, proxy, or
other agreement or understanding between or among any persons that affects or
relates to the voting or giving of written consent with respect to any
outstanding security of Ebetech, the election of directors, the appointment of
officers or other actions of Ebetech's Board of Directors or the management of
Ebetech.
3.4 Financial Statements. Sellers have furnished to Etec an unaudited
statement of income for the five months period ended February 28, 1997 and an
unaudited balance sheet of Ebetech as of February 28, 1997 as shown in
Schedule 3.4. The balance sheet at February 28, 1997 is hereinafter referred
to as the "Ebetech Balance Sheet," and all said financial statements are
hereinafter referred to collectively as the "Ebetech Financial Statements."
The Ebetech Financial Statements have been and will be complete, true and
accurate in all material respects and have been prepared in accordance with
German law and generally accepted accounting principles in Germany ("GAAP")
applied on a consistent basis during the periods involved, and are and will be
in accordance with Ebetech's books and records, and fairly present the
financial position of Ebetech and the results of its operations as of the date
and for the periods indicated thereon, subject in the case of the unaudited
portion of the Ebetech Financial Statements to normal year-end audit
adjustments which will not be material and the absence of certain footnote
disclosures. At the date of the Ebetech Balance Sheet (the "Ebetech Balance
Sheet Date") and as of the Closing Date, Ebetech had and will have no
liabilities or obligations, secured or unsecured (whether accrued, absolute,
contingent or otherwise) not reflected on the Ebetech Balance Sheet or the
accompanying notes thereto except for liabilities and obligations as may have
arisen in the ordinary course of business prior to the date of said Balance
Sheet and which, under GAAP, would not have been required to be reflected on
such Balance Sheet and except for liabilities incurred in the ordinary course
of business since the date of said Balance Sheet which are usual and normal in
amount. Since February 28, 1997, there has been no change in Ebetech's
accounting policies and there has been no change in Ebetech's estimates of
contingent liabilities.
3.5 Business Changes. Since February 28, 1997, except as disclosed in
Schedule 3.5, Ebetech has conducted its business only in the ordinary and
usual course and, without limiting the generality of the foregoing:
(a) There have been no changes in the condition (financial or
otherwise), business, net worth, assets, prospects, properties, employees,
operations, obligations or liabilities of Ebetech which, in the aggregate,
have had or may be reasonably expected to have a materially adverse effect on
the condition, business, net worth, assets, prospects, properties or
operations of Ebetech.
(b) Except for purchase orders for assets, Ebetech has not incurred
additional debt for borrowed money nor incurred any obligation or liability
except in the ordinary and usual course of business and in any event not in
excess of US$15,000 in total.
(c) Ebetech has not declared or made any dividend, payment or other
distribution on or with respect to any share of capital stock of Ebetech.
(d) Ebetech has not sold, assigned, transferred or conveyed, or
committed itself to sell, assign, transfer or convey, any Proprietary Rights
(as defined in Section 3.18).
(e) Ebetech has not adopted or amended any bonus, incentive,
profit-sharing, stock option, stock purchase, pension, retirement,
deferred-compensation, severance, life insurance, medical or other benefit
plan, agreement, trust, fund or arrangement for the benefit of employees of
any kind whatsoever, nor entered into or amended any agreement relating to
employment, services as an independent contractor or consultant, or severance
or termination pay, nor agreed to do any of the foregoing.
3.6 Properties.
(a) The Ebetech Balance Sheet reflects all of the real and personal
property used by Ebetech in its business or otherwise held by Ebetech, except
for (I) property acquired or disposed of in the ordinary and usual course of
the business of Ebetech since the date of such balance sheet, and (ii) real
and personal property not required under GAAP to be reflected thereon. Except
as reflected in the notes to the Ebetech Balance Sheet, Ebetech has good and
marketable title to all assets and properties listed on the Ebetech Balance
Sheet and thereafter acquired, free and clear of any imperfections of title,
lien, claim, encumbrance, restriction, charge or equity of any nature
whatsoever, except for the lien of current taxes not yet delinquent. The
fixed assets described in Schedule 3.6(a) constitute all tangible personal
property (other than inventory) currently used in the business. All of the
fixed assets and properties reflected on the Ebetech Balance Sheet or
thereafter acquired are in sufficient condition and repair for the
requirements of the business as presently conducted by Ebetech.
(b) Schedule 3.6(b) hereto lists of all real property leased by Ebetech
or under option to purchase by Ebetech. All such property leased by Ebetech
is held under valid, sub-sisting and enforceable leases. To the best
knowledge of Sellers after due inquiry of management of Ebetech, neither real
property leased by Ebetech nor the operations of Ebetech thereon, violate any
applicable material building code, zoning requirement or classification, or
pollution control ordinance or statute relating to the property or to such
operations.
(c) To the best knowledge of Sellers after due inquiry of management of
Ebetech, (I) there are no Hazardous Substances in, under or about the soil,
sediment, surface water or groundwater on, under or around any properties at
any time owned, leased or occupied by Ebetech, (ii) Ebetech has not disposed
of any Hazardous Substances on or about such property, and (iii) Ebetech has
not disposed of any materials at any site being investigated or remediated for
contamination or possible contamination of the environment. "Hazardous
Substances" shall mean any substance regulated or prohibited by any law or
designated by any governmental agency to be hazardous, toxic, radioactive,
regulated medical waste or otherwise a danger to health or the environment.
(d) To the best knowledge of Sellers after due inquiry of the management
of Ebetech, Ebetech has conducted its business in accordance with all
applicable material laws, regulations, orders and other requirements of
governmental authorities relating to Hazardous Substances and the use,
storage, treatment, disposal, transport, generation, release and exposure of
others to Hazardous Substances. Ebetech has not received any notice of any
investigation, claim or proceeding against Ebetech relating to Hazardous
Substances and Sellers after due inquiry of management of Ebetech are not
aware of any fact or circumstance which could involve Ebetech in any
environmental litigation, proceeding, investigation or claim or impose any
environmental liability upon Ebetech.
3.7 Accounts Receivable; Notes Receivable. Schedule 3.7 contains a summary
of the accounts receivable of Ebetech as of February 28, 1997, together with
an accurate aging of such accounts receivable. The accounts receivable arose
out of the bona fide furnishing of goods and services, each in the operation
of the business of Ebetech, and require no additional performance by Ebetech
to render them valid. Except as set forth on Schedule 3.7, the notes
receivable are obligations of current customers of Ebetech, whether on an open
account or cash on delivery basis, and there are no disputes between Ebetech
and any obligor under such note receivable with respect to the amount owing or
the payment terms thereunder. Sellers have provided Etec with accurate
information concerning amounts and aging of accounts receivable and with an
accurate customer list of Ebetech. Sellers have no knowledge of any
non-collect ability of such amounts at present.
3.8 Taxes.
(a) The Ebetech Balance Sheet contains sufficient reserves for all tax
obligations of Ebetech at February 28, 1997, independent of whether the
obligations are existent or known at the date of the preparation of the
balance sheet. Tax returns other than Corporate, Trade and Net Asset Tax, have
been properly made and filed on time. Ebetech effected no hidden profit
distribution prior to the Closing Date.
(b) Additional tax payments and tax refunds relating to the period
before the Closing Date which arise ex post facto (e.g. after a tax audit),
will belong to the Sellers and Sellers shall indemnify Etec Sub for any such
tax payments. To the extent that reserves for such tax payments are shown in
the Ebetech Balance Sheet or as long as they are based on a mere time
displacement, or if the Ebetech Balance Sheet shows unused reserves, such tax
payments will not cause an obligation for indemnification.
Sellers shall indemnify Etec Sub for all disadvantages resulting from the fact
that, contrary to Section 3.8 (a), tax returns of Ebetech have not properly
been made and filed on time. Furthermore, Sellers shall indemnify Etec Sub for
all additional taxes (eg corporate, trade and capital with- holding tax)
resulting from a hidden profit distribution contrary to Section 3.8 (a).
Etec Sub will ensure that Ebetech, and Ebetech itself assures that it will
give Sellers and their advisers, being obliged to secrecy according to
professional rules, the opportunity to participate in tax field audits which
covers the term prior to the Closing Date. Etec Sub and Ebetech ensure that
Sellers will be informed immediately about the announcement or the beginning
of such tax field audits. Failing an agreement on the results of the tax field
audit, Etec Sub assures that Ebetech will enter an appeal against the
respective tax assessment and, if necessary, will take court actions according
to the directives of Sellers. Costs of such appeals and court actions will be
borne by Sellers, if the case is lost by Ebetech.
Indemnification obligations of Sellers under this Section 3.8 arise only if
Etec Sub and Ebetech have fulfilled their obligations under Section 3.8 (b).
Schedule 3.8 (statement of KPMG Deutsche Treuhand-Gesellschaft dated March 7,
1997) contains further information on Ebetech's tax situation.
3.9 Compliance with Law. According to the best knowledge of Sellers after
due inquiry of the management of Ebetech, all material licenses, franchises,
permits, clearances, consents, certificates and other evidences of authority
of Ebetech which are necessary to the conduct of Ebetech's business
("Permits") are in full force and effect and Ebetech is not in violation of
any Permit in any material respect. Except for possible exceptions, the
curing or non-curing of which would not have a material adverse effect on the
condition (financial or otherwise), business, net worth, assets, prospects,
properties or operations of Ebetech, the business of Ebetech has been
conducted in accordance with all applicable laws, regulations, orders and
other requirements of governmental authorities.
3.10 Litigation. Except as disclosed in Schedule 3.10, there is no claim,
dispute, action, proceeding, notice, order, suit, appeal or investigation, at
law or in equity, pending against Ebetech, or involving any of its assets or
properties, before any court, agency, authority, arbitration panel or other
tribunal (other than those, if any, with respect to which service of process
or similar notice has not yet been made on Ebetech), and to the best knowledge
of Sellers after due inquiry of management of Ebetech, none have been
threatened. Sellers after due inquiry of management of Ebetech are not aware
of any facts which, if known to shareholders, customers, governmental
authorities or other persons, would result in any such claim, dispute, action,
proceeding, suit or appeal or investigation which would have a material
adverse effect on the condition (financial or otherwise), business, net worth,
assets, prospects, properties or operations of Ebetech. Ebetech is not
subject to any order, writ, injunction or decree of any court, agency,
authority, arbitration panel or other tribunal, nor is it in default with
respect to any notice, order, writ, injunction or decree.
3.11 Contracts. Schedule 3.11 hereto lists each executory contract and
agreement in the following categories to which Ebetech is a party, or by which
it is bound in any respect,
(a) agreements for the purchase, sale, lease or other disposition of
equipment, goods, materials, research and development, supplies, studies or
capital assets, or for the performance of services, not in the ordinary course
of business;
(b) contracts or agreements for the joint per-formance of work or
services, and all other joint venture agreements;
(c) management or employment contracts, consulting contracts, collective
bargaining contracts, termination and severance agreements, including the
terms of any oral agreements with employees;
(d) notes, mortgages, deeds of trust, loan agreements, security
guarantees, debentures, indentures, credit agreements and other evidences of
indebtedness;
(e) pension, retirement, profit-sharing, deferred compensation, bonus,
incentive, life insurance, hospitalization or other employee benefit plans or
arrangements (including, without limitation, any contracts or agreements with
trustees, insurance companies or others relating to any such employee benefit
plan or arrangement);
(f) stock option, stock purchase, warrant, repurchase or other contracts
or agreements relating to any share capital of Ebetech;
(g) contracts or agreements with agents, brokers, consignees, sale
representatives or distributors;
(h) contracts or agreements with any director, officer, employee,
consultant or shareholder;
(I) powers of attorney or similar authorizations granted by Ebetech to
third parties;
(j) licenses, sublicenses, royalty agreements and other contracts or
agreements to which Ebetech is a party, or otherwise subject, relating to
technical assistance or to Proprietary Rights as defined below; and
(k) other material contracts.
Ebetech has not entered into any contract or agreement containing covenants
limiting the right of Ebetech to conduct or carry out any business or any line
of business in any part of the world or to compete in any business or with any
person. As used in this Agreement, the terms "contract" and "agreement"
include every contract, agreement, commitment, understanding and promise,
whether written or oral.
3.12 Operating Leases. Schedule 3.12 lists each operating lease under which
Ebetech leases assets.
3.13 No Default.
(a) Each of the contracts, agreements or other instruments referred to
in Sections 3.11 and 3.12 of this Agreement and each of the standard customer
agreements or contracts of Ebetech is a legal, binding and enforceable
obligation by or against Ebetech, subject to the effect of applicable
bankruptcy, insolvency, reorganization, moratorium or other similar applicable
laws affecting the rights of creditors and the effect or availability of rules
of law governing specific performance, injunctive relief or other
equitable remedies (regardless of whether any such remedy is considered in a
proceeding at law or in equity). To the best knowledge of Sellers, no party
with whom Ebetech has an agreement or contract is in default thereunder or has
breached any terms or provisions thereof which is material to the conduct of
Ebetech's business.
(b) Ebetech has performed, or is now performing, the obligations of, and
Ebetech is not in material default (or would by the lapse of time and/or the
giving of notice be in material default) in respect of, any contract,
agreement or commitment binding upon it or its assets or properties and
material to the conduct of its business. No third party has raised any claim,
dispute or controversy with respect to any of the executory contracts of
Ebetech, nor has Ebetech received notice or warning of alleged nonperformance,
delay in delivery or other noncompliance by Ebetech with respect to its
obligations under any of those contracts, nor are there any facts which exist
indicating that any of those contracts may be totally or partially terminated
or suspended by the other parties thereto.
3.14 Business and Customers. Schedule 3.14 hereto lists of all Ebetech's
customers from whom more than US$10,000 in revenues were received in the
period of five months ended February 28, 1997. Sellers after due inquiry of
management of Ebetech do not have knowledge of any circumstances likely to
result in termination or failure to renew customer contracts or the return of
equipment sold, the loss of which in the aggregate would have a material
adverse effect on the revenues or business of Ebetech.
3.15 Inventories and Work in Progress. The inventories (including work in
progress) of Ebetech consist of items of a quality and quantity usable and
salable in the normal course of the business. A summary of inventory on hand
as of February 28, 1997 is attached hereto as Schedule 3.15. All items
included in such inventories are owned by Ebetech unless bought under usual
retention of title clauses or security provisions. No items included in the
inventories have been pledged as collateral or are held by Ebetech on
consignment from others. All the inventories reflected on the balance sheets
included in the Ebetech Financial Statements and on the books of Ebetech are
based on quantities determined as of February 28, 1997 based on cycle counts,
and are valued in the Ebetech Financial Statements at the lower of average
cost or market and on a basis consistent with that of prior periods.
3.16 Proprietary Rights.
(a) Schedule 3.16(a) hereto is a complete list of all computer software,
software programs, patents and applications for patents, trademarks, trade
names, service marks, and copyrights, and applications therefor, owned or used
by Ebetech or in which it has any rights or licenses, except for software used
by Ebetech and generally available on the commercial market. Sellers have
provided Etec with a complete and accurate description of all agreements of
Ebetech with each officer, employee or consultant of Ebetech providing Ebetech
with title and ownership to patents, patent applications, trade secrets and
inventions developed or used by Ebetech in its business. All of such
agreements so described are valid, enforceable and legally binding, subject to
the effect or availability of rules of law governing specific performance,
injunctive relief or other equitable remedies (regardless of whether any such
remedy is considered in a proceeding at law or in equity).
(b) Ebetech owns or possesses licenses or other rights to use all
computer software, software programs, patents, patent applications,
trademarks, trademark applications, trade secrets, service marks, trade names,
copyrights, inventions, drawings, designs, customer lists, proprietary
know-how or information, or other rights with respect thereto (collectively
referred to as "Proprietary Rights"), used in the business of Ebetech,
including, but not limited to all patents necessary to the design and
development of the electronic beam based electrical test systems for active
matrix liquid crystal displays and other flat panel displays.
(c) To the best knowledge of the Sellers after due inquiry of the
management of Ebetech, the operations of Ebetech do not conflict with or
infringe, and no one has asserted to Ebetech that such operations conflict
with or infringe on any Proprietary Rights, owned, possessed or used by any
third party. There are no claims, disputes, actions, proceedings, suits or
appeals pending against Ebetech with respect to any Proprietary Rights (other
than those, if any, with respect to which service of process or similar notice
may not yet have been made on Ebetech), and to the best knowledge of Sellers,
Ebetech and the management of Ebetech none has been threatened against
Ebetech. To the best knowledge of Sellers after due inquiry of the management
of Ebetech there are no facts or alleged facts which would reasonably serve as
a basis for any claim that Ebetech does not have the right to use, free of any
rights or claims of others, all Proprietary Rights in the development,
manufacture, use, sale or other disposition of any or all products or services
presently being used, furnished or sold in the conduct of the business of
Ebetech as it has been and is now being conducted.
(d) Schedule 3.16(d) contains a complete and accurate list of any
proceedings before any patent or trademark authority to which Ebetech is a
party, a description of the subject matter of each proceeding, and the current
status of each proceeding, including, without limitation, interferences,
priority contests, opposition, and protests. Such list includes any pending
applications for reissue or reexamination of a patent and any pending transfer
of a patent. Ebetech has the exclusive right to file, prosecute and maintain
any such applications for patents, copyrights or trademarks and the patents
and registrations that issue therefrom.
(e) To the best knowledge of Sellers after due inquiry of the management
of Ebetech, all patents and registered trademarks, service marks, and other
company, product or service identifiers and registered copyrights held by
Ebetech are valid and enforceable.
(f) Ebetech has taken all reasonable measures to maintain the
confidentiality of the Proprietary Rights.
(g) To the best of Sellers' knowledge after due inquiry of management,
no employee of Ebetech is in violation of any term of any employment contract,
proprietary information and inventions agreement, non-competition agreement,
or any other contract or agreement relating to the relationship of any such
employee with Ebetech or any previous employer.
3.17 CE Mark Certification. All Ebetech products currently comply with the
European Union regulations relating to electromagmetic fields, electrical
power and human exposure to laser certification that became effective in
January 1997 and all Ebetech products carry the Certificate Europa mark
certification.
3.18 Insurance. Schedule 3.18 hereto lists all policies of insurance to which
Ebetech is a party or is a beneficiary or named insured. Ebetech has in full
force and effect, with all premiums due thereon paid, the policies of
insurance set forth therein. All the insurable properties of Ebetech are
insured in amounts and coverage and against risks and losses which are
adequate and usually insured against by persons holding or operating similar
properties in similar businesses. There were no claims in excess of US$5,000
asserted under any of the insurance policies of Ebetech in respect of all
motor vehicle, general liability, professional liability, errors and
omissions, and worker's compensation, and medical claims for the period from
September 1, 1996 to the date of this Agreement.
Sellers advise Etec and Etec Sub that insurance policies might be terminated
with reasonable notice by insurance companies of Ebetech due to the fact that
the Shares are sold and transferred to Etec Sub.
3.19 Bank Accounts. Sellers and Ebetech have furnished to Etec a true and
correct list setting forth the names and addresses of all banks, other
institutions and state governmental departments at which Ebetech has accounts,
deposits or safety deposit boxes, or special deposits required to be held by
such state governmental departments with the nature of such account and the
names of all persons authorized to draw on or give instructions with respect
to such accounts or deposits, or to have access thereto, and the names and
addresses of all persons, if any, holding a power-of-attorney on behalf of
Ebetech. All cash in such accounts is held in demand or short term time
deposits and is not subject to any restriction or limitation as to withdrawal.
On the Closing Date, Ebetech has an aggregate cash balance in excess of its
liabilities (other than the Term Debt) by at least DM 350,000.
3.20 Brokers or Finders. Except for Pierre Fougere of Fougere Conseil,
Sellers have not, and Ebetech has not dealt with any broker or finder in
connection with the transactions contemplated by this Agreement. Except for
obligations to Pierre Fougere of Fougere Conseil, Sellers have not incurred,
and Ebetech has not incurred, and neither shall incur, directly or indirectly,
any liability for any brokerage or finders' fees or agents' commissions or any
similar charges in connection with this Agreement or any transaction
contemplated hereby. All fees and expenses of Pierre Fougere of Fougere
Conseil are obligations of the Sellers and not of Ebetech or Etec or Etec Sub.
3.21 Related Parties. Except as previously disclosed in writing to Etec and
Etec Sub, no officer or director of Ebetech, or any affiliate of any such
person, has, either directly or indirectly, (l) an interest in any
corporation, partnership, firm or other person or entity which furnishes or
sells services or products which are similar to those furnished or sold by
Ebetech, or (m) a beneficial interest in any contract or agreement to which
Ebetech is a party or by which Ebetech may be bound. For purposes of this
Section 3.21, there shall be disregarded any interest which arose solely from
the ownership of less than a two percent (2%) equity interest in a corporation
whose stock is regularly traded on any national securities exchange or in the
over-the-counter market.
3.22 Certain Advances. There are no receivables of Ebetech owing from
directors, officers, employees, consultants or shareholders of Ebetech, or
owing by any affiliate of any director or officer of Ebetech, other than
advances in the ordinary and usual course of business to officers and
employees for reimbursable business expenses which are not in excess of
US$2,500 for any one individual.
3.23 Employee Benefit Plans. Ebetech does not maintain any employee pension
or welfare benefit plans or any other employee benefit plans of any type other
than required by German law and accrued for in the Financial Statements.
Ebetech is not obligated to make any contributions to any such plans and does
not make any such contributions. Ebetech does not participate in any
multiemployer plans and is not obligated to contribute to any such plans.
Ebetech has no obligations of any type to its employees after their
retirement.
3.24 Underlying Documents. Copies of any underlying documents listed or
described as having been disclosed to Etec and Etec Sub pursuant to this
Agreement, if requested by Etec or Etec Sub, have been furnished to Etec. All
such documents furnished to Etec and Etec Sub are true and correct copies, and
there are no amendments or modifications thereto, that have not been disclosed
to Etec and Etec Sub. The minutes of Ebetech contain complete and accurate
records of all meetings and other corporate actions taken by the shareholders
of Ebetech.
3.25 Full Disclosure. Any information furnished by or on behalf of Ebetech to
Etec and Etec Sub in writing pursuant to this Agreement (including the
Schedules hereto), at any time prior to the Closing Date, does not and will
not contain any untrue statement of a material fact and does not and will not
omit to state any material fact necessary to make any statement, in light of
the circumstances under which such statement is made, not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ETEC AND ETEC SUB
Except as contemplated by this Agreement, Etec and Etec Sub represent and
warrant to Sellers as of the date hereof as follows:
4.1 Organization. Etec is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Nevada, United States.
Etec is duly qualified to do business and is in good standing in its state of
incorporation and in each other jurisdiction in which it owns or leases
property or conducts business, except where the failure to be so qualified
would not have a material adverse effect on the business of Etec. Etec has
all requisite power and authority to own, lease and operate its properties and
to carry on its business as now being conducted, and possesses all licenses,
franchises, rights and privileges material to the conduct of its business.
4.2 Authority. Etec has all requisite corporate power and authority to enter
into this Agreement and the related agreements contemplated herein, and,
subject to satisfaction of the conditions set forth herein, to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of Etec.
This Agreement has been duly executed and delivered by Etec and constitutes
the valid and binding obligation of Etec enforceable in accordance with its
terms, subject to the effect of applicable bankruptcy, insolvency,
reorganization or other similar federal or state laws affecting the rights of
creditors and the effect or availability of rules of law governing specific
performance, injunctive relief or other equitable remedies. Provided the
conditions set forth in Article 7 are satisfied, the execution and delivery of
this Agreement do not, and the consummation of the transactions contemplated
hereby 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 under (a) any
provision of the corporate charter or Bylaws of Etec, or (b) any material
agreement or instrument, permit, license, judgment, order, statute, law,
ordinance, rule or regulation applicable to Etec or its properties or assets,
other than any such conflicts, violations, defaults, terminations,
cancellations or accelerations which individually or in the aggregate would
not have a material adverse effect on Etec.
No consent, approval, order or authorization of, or registration, declaration
or filing with, any governmental authority is required by or with respect to
Etec in connection with the execution and delivery of this Agreement by Etec
or the consummation by Etec of the transactions contemplated hereby or
thereby.
4.3 Brokers or Finders. Neither Etec nor Etec Sub has dealt with any broker
or finder in connection with the transactions contemplated by this Agreement.
Neither Etec nor Etec Sub has incurred, and neither shall incur, directly or
indirectly, any liability for any brokerage or finders' fees or agents
commissions or any similar charges in connection with this Agreement or any
transaction contemplated hereby.
4.4 Full Disclosure. Any information furnished by or on behalf of Etec or
Etec Sub to Ebetech in writing pursuant to this Agreement (including the
Schedules hereto), at any time prior to the Closing Date, does not and will
not contain any untrue statement of a material fact and does not and will not
omit to state any material fact necessary to make any statement, in light of
the circumstances under which such statement is made, not misleading.
4.5 Confirmation. Etec and Etec Sub hereby confirm receipt of all documents
requested by Etec or its advisors. At present, Etec or Etec Sub do not have
knowledge of any facts or circumstances that might give rise to a claim of
Etec or Etec Sub under this Agreement.
ARTICLE 5
COVENANTS RELATING TO CONDUCT OF BUSINESS
During the period from March 12, 1997 and continuing until the Closing Date,
Ebetech and Sellers (except as expressly contemplated by this Agreement or to
the extent that Etec and Etec Sub shall otherwise consent in writing)
covenant, and agree with Etec and Etec Sub that:
5.1 Conduct of Business in Normal Course. Ebetech shall carry on the
business and its activities diligently and in the ordinary course and shall
not make or institute any unusual or novel methods of purchase, sale, lease,
management, accounting or operation that will vary materially from the methods
used by Ebetech as of March 12, 1997. Ebetech shall maintain the nature and
quantities of inventories for the business in a normal and customary manner
consistent with prior practice.
5.2 Preservation of Business and Relationships. Ebetech shall use its best
efforts, without making any commitments on behalf of Etec and Etec Sub, to
preserve its business organization intact, to keep available its present
employees, and to preserve its present relationships with suppliers, customers
and others having business relationships with it.
5.3 Maintenance of Insurance. Prior to the Closing, Ebetech shall maintain
in effect all insurance covering the business. If the Closing shall occur
after a renewal date for any such insurance, Ebetech shall renew the insurance
on the same or substantially similar terms, limits of liability and other
conditions.
5.4 Employees and Compensation. Ebetech shall not do, or agree to do, any of
the following acts: (a) grant any increase in salaries payable or to become
payable to any employee, sales agent or representative; or (b) increase
benefits payable to any employee, sales agent or representative under any
executive compensation, bonus, pension, profit-sharing, retirement, deferred
compensation, severance, employee stock option or stock purchase, group life,
health and other employee benefit plans, arrangements, practices or
commitments. Ebetech shall provide Etec and Etec Sub with reasonable access
to its employees during normal business hours.
5.5 Dividends; Changes in Stock. Ebetech shall not and shall not propose to
(a) declare or pay any dividends on or make other distributions in respect of
any of its capital stock, (b) 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 capital stock of Ebetech, or
(c) repurchase or otherwise acquire any shares of its capital stock or rights
to acquire any shares of its capital stock.
5.6 Issuance of Securities. Ebetech shall not issue, deliver, or sell or
authorize or propose the issuance, delivery or sale of, or purchase or propose
the purchase of, any shares of its capital stock of any class or securities
convertible into, or rights, warrants or options to acquire, any such shares
or other convertible securities.
5.7 Governing Documents. Ebetech shall not amend its corporate charter or
Bylaws.
5.8 No Other Bids. Neither Sellers, nor Ebetech nor any of their respective
directors, officers or agents, will, directly or indirectly, solicit or
initiate or encourage any discussions or negotiations with, or participate in
any negotiations with or provide any information to or otherwise cooperate in
any other way with any corporation, partnership, person or other entity or
group (other than Etec and Etec Sub) concerning any merger, sale of
substantial assets, sale of shares of capital stock or any division of Ebetech
or control thereof. Etec and Etec Sub shall be promptly notified in writing
by Sellers and Ebetech of any of the events referred to in this Section 5.8
including a summary of the material terms of any other bid.
5.9 No Acquisitions. Ebetech shall not (a) acquire or agree to acquire 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, association or other business organization or division thereof or
(b) otherwise acquire or agree to acquire any assets which are material,
individually or in the aggregate, to Ebetech except in the ordinary course of
business consistent with prior practice.
5.10 No Dispositions. Ebetech shall not lease or otherwise dispose of any of
its assets, individually or in the aggregate, except in the ordinary course of
business consistent with prior practice and in any event not in excess of
US$5,000 for any single item or more than US$50,000 in the aggregate.
5.11 Indebtedness. Ebetech shall not incur any indebtedness for borrowed
money or guarantee any such indebtedness or issue or sell any debt securities
of Ebetech or guarantee any debt securities of others.
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 Access to Information. Sellers and Ebetech shall afford to Etec and Etec
Sub and shall cause Ebetech's independent accountants to afford to Etec and
Etec Sub, and their accountants, counsel and other representatives, reasonable
access during normal business hours during the period prior to the Closing
Date to Ebetech's properties, books, contracts, commitments and records and to
the independent accountants reasonable access to the audit work papers and
other records of Ebetech's accountants. During such period, Sellers and
Ebetech shall use reasonable efforts to furnish promptly to Etec and Etec Sub
all information concerning the business, properties and personnel of Ebetech
as Etec and Etec Sub may reasonably request. Etec and Etec Sub will not use
such information for purposes other than this Agreement and will otherwise
hold such information in confidence (and Etec and Etec Sub will cause their
consultants and advisors also to hold such information in confidence).
6.2 Legal Conditions. Each party will take all reasonable actions necessary
to comply promptly with all legal requirements which may be imposed on such
party with respect to this Agreement and will promptly cooperate with and
furnish information to the other party in connection with any such
requirements imposed upon such other party in connection with this Agreement.
Each party will take all reasonable actions to obtain (and to cooperate with
the other party in obtaining) any consent, authorization, order or approval
of, or any exemption by, any governmental authority, or other third party,
required to be obtained or made by such party (or by the other party) in
connection with this Agreement or the taking of any action contemplated
thereby.
6.3 Good Faith. Each party shall act in good faith in an attempt to cause to
be satisfied all the conditions precedent to its obligations and those of the
other parties to this Agreement over which it has control or influence. Each
party will act in good faith and take all reasonable action within its
capability necessary to render accurate as of the Closing Date its
representations and warranties contained in this Agreement.
ARTICLE 7
CONDITIONS PRECEDENT
7.1 Conditions to Obligations of Etec, Etec Sub and Sellers. The obligations
of Etec, Etec Sub and Sellers to consummate this Agreement shall be subject to
the satisfaction on or prior to the Closing Date of the following conditions
unless waived by Etec, Etec Sub and Sellers:
(a) Government Approvals. All authorizations, consents, orders or
approvals of, or declarations or filings with, or expiration of waiting
periods imposed by, any governmental authority necessary for the consummation
of the transactions contemplated by this Agreement.
(b) Third-Party Approvals. Any and all consents or approvals required
from third parties relating to contracts, agreements, licenses, leases and
other instruments, material to the respective businesses of Etec, Etec Sub and
Ebetech shall have been obtained.
(c) Legal Action. No temporary restraining order, preliminary
injunction or permanent injunction or other order preventing the consummation
of this Agreement shall have been issued by any federal, state or foreign
court and remain in effect, and no litigation seeking the issuance of such an
order or injunction, shall be pending which, in the good faith judgment of
Sellers, Etec or Etec Sub has a reasonable probability of resulting in such
order, injunction or damages.
7.2 Conditions to Obligations of Etec and Etec Sub. The obligations of Etec
or Etec Sub to consummate this Agreement are subject to the satisfaction on or
prior to the Closing Date of the following conditions, unless waived by Etec:
(a) Representations and Warranties. The representations and warranties
of Sellers and covenants of Ebetech set forth in this Agreement shall be true
and correct in all material respects as of the date of this Agreement and as
if made at and as of the Closing Date, except as otherwise contemplated by
this Agreement.
(b) Performance of Obligations. Sellers and Ebetech shall have
performed in all material respects all obligations required to be performed by
each, respectively, under this Agreement prior to the Closing Date.
(c) No Material Adverse Change. Since February 28, 1997, there shall
have been no changes in the condition (financial or otherwise), business,
prospects, employees, operations, obligations or liabilities of Ebetech which,
in the aggregate, have had or may be reasonably expected to have a materially
adverse effect on the financial condition, business, or operations of Ebetech.
(d) Patents. All patents now owned by Ebetech, including those which
were transferred by ICT to Ebetech have been registered in the name of
Ebetech.
7.3 Conditions to Obligations of Sellers. The obligations of Sellers to
consummate the transactions contemplated hereby are subject to the
satisfaction on or prior to the Closing Date of the following additional
conditions unless waived by Sellers:
(a) Representations and Warranties. The representations and warranties
of Etec and Etec Sub set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and as if made at and
as of the Closing Date, except as otherwise contemplated by this Agreement.
(b) Performance of Obligations of Etec and Etec Sub. Etec and Etec Sub
shall have performed in all material respects all obligations required to be
performed by each, respectively, under this Agreement prior to the Closing
Date.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification by Sellers. Sellers agree to defend and indemnify Etec,
Etec Sub and their respective affiliates, directors, officers and
shareholders, and their respective successors and assigns (collectively, "Etec
Indemnitees"), against and hold each of them harmless from any and all losses,
liabilities, taxes, claims, suits, proceedings, demands, judgments, damages,
expenses and costs, including, without limitation, reasonable counsel fees,
costs and expenses incurred in the investigation, defense or settlement of any
claims covered by this indemnity (in this Section 8.1 collectively, the
"Indemnifiable Damages") which any such indemnified person may suffer or incur
by reason of (I) the inaccuracy or breach of any of the representations,
warranties and covenants of Sellers contained in this Agreement or any
documents, certificate or agreement delivered pursuant hereto; (ii) any claim
asserted by and granted to any person relating to or arising out of
transactions, events, acts or omissions of or by Sellers or Ebetech, prior to
the Closing Date; (iii) any liabilities of Ebetech (excluding expenses
incurred in the ordinary course of business, including but not limited to
purchase orders) not disclosed to Etec or Etec Sub, whether or not known to
Sellers, which were incurred prior to the Closing Date; (iv) the absence of
intellectual property essential to the business of Ebetech as it is currently
conducted (not including costs of applying for and perfecting known patents);
or (v) the absence of appropriate accruals in the Ebetech Balance Sheet.
Notwithstanding anything herein to the contrary, Sellers' liability under this
Share Purchase Agreement shall be limited to the following amounts:
a) Holdback Amount shared by all Sellers $ 500,000
b) VCB Venture Capital
Beteiligungsgesellschaft mbH $ 1,000,000
in addition to its pro-rata share of the
Holdback Amount
c) MRS Technology (see 8.2), Inc. $ 875,000
in addition to its pro-rata share of the
Holdback Amount
Any claims by Etec Indemnitees shall be applied first against the Holdback
Amount, and then pro rata against VCB and MRS; provided however, that if
either VCB or MRS are unable to pay their pro rata share of the claim, the
other shall be liable for the full amount of the claim to the extent of such
party's liability set forth above.
No claims shall be payable by Sellers until the aggregate amount of
Indemnifiable Damages exceeds US $ 5,000. Once the aggregate amount of
Indemnifiable Damages exceed US $ 5,000, all claims shall be payable.
Any liability of Sellers under this Share Purchase Agreement applies only to
claims for Indemnifiable Damages being asserted against Sellers in writing
prior to September 15, 1998.
8.2 Collateral MRS Recognizing that MRS is of limited financial resources,
MRS agrees to the following: Should MRS's net ready assets (defined as cash
plus accounts receivable, and less accounts payable, accrued liabilities and
other current liabilities) decline to US $ 1,000,000 at any time during the
imdemnification period, Etec shall have the right to demand that MRS escrow
funds or provide a performance bond in the amount set forth on the following
schedule:
3/15/97 - 6/15/97 US $ 875,000
6/16/97 - 9/15/97 729,167
9/16/97 - 12/15/97 583,333
12/16/97 - 3/15/98 437,500
3/16/98 - 6/15/98 291,667
6/16/98 - 9/15/98 145,833
The obligations of MRS pursuant to this Section 8.2 shall expire on September
15, 1998.
8.3 Notification Etec and Etec Sub shall use their best efforts to notify
Sellers of any claims for Indemnifiable Damages as soon as practicable after
Etec or Etec Sub become aware of such a claim, and shall permit Sellers to
assist in reducing or settling any such claim.
8.4 Indemnification by Etec. After the Closing Date, Etec and Etec Sub
shall, as to those representations, warranties, covenants and agreements which
are herein made or agreed to by Etec and Etec Sub, respectively, indemnify and
hold harmless Sellers and their heirs and assigns ("Seller Indemnitees")
against and in respect of: (I) any damage, deficiency, losses or costs
incurred by a Seller Indemnitee resulting from any misrepresentation or breach
of warranty or any nonfulfillment of any covenant or agreement on the part of
Etec or Etec Sub under this Agreement; (ii) any claim made by any person
relating to or arising out of transactions, events, acts or omissions of or by
Ebetech after the Closing; and (iii) any claim, action, suit, proceeding,
demand, judgment, assessment, cost and expense, including reasonable counsel
fees, incident to any of the foregoing.
ARTICLE 9
PAYMENT OF EXPENSES
Etec, Etec Sub and Sellers shall each pay their own fees and expenses
incurred incident to the preparation and carrying out of the transactions
herein contemplated. Notarial fees will be split half and half between
Etec/Etec Sub and Sellers. Sellers shall pay all sales and use taxes arising
out of the transfer of Shares and related to the sale of the Shares. Etec and
Etec Sub shall not be responsible for any business occupation, withholding, or
similar tax, or any taxes of any kind related to any period before the Closing
Date.
ARTICLE 10
TERMINATION, AMENDMENT AND WAIVER
10.1 Termination. This Agreement may be terminated at any time prior to the
Closing Date:
(a) by mutual written consent of Sellers and Etec;
(b) by either Etec or Sellers if there has been a material breach of any
representation, warranty, covenant or agreement contained in this Agreement on
the part of any party set forth in this Agreement and, if such breach is
curable, such breach has not been promptly cured after written notice of such
breach;
(c) by either Etec or Sellers if there shall be a final nonappealable
order of a federal or state court in effect preventing consummation of this
Agreement;
10.2 Amendment. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
10.3 Extension; Waiver. At any time prior to the Closing, Etec, Etec Sub or
Sellers may (I) extend the time for the performance of any of the obligations
or other acts of the other parties hereto, (ii) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (iii) waive compliance with any of the agreements or
conditions for the benefit thereof contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid if set
forth in an instrument in writing signed on behalf of such party.
ARTICLE 11
GENERAL
11.1 Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the other shall be in writing and delivered
personally or sent by certified mail, postage prepaid by facsimile, or by
courier service, as follows:
To Etec: Etec Systems, Inc.
24640 Corporate Avenue
Hayward, CA 94545
Facsimile: (510) 780-3845
Attn: Mr. Stephen E. Cooper
with a copy to: Pillsbury Madison & Sutro LLP
235 Montgomery Street
San Francisco, CA 94104
Facsimile: (415) 983-1200
Attn: Richard S. Grey, Esq.
To Sellers: Matthias Brunner and Richard L. Haas
Managing Directors
Ebetech Electron-Beam Technology
Vertriebs GmbH
Klausnerring 1a
D-85551 Heimstetten bei Munchen
Germany
Facsimile: 49-89-90-9994-81
with a copy to: Christian Roschmann
Oppenhoff & Radler
Prinzregentenplatz 10
81675 Munchen
Germany
Facsimile: 49-89-41808-343
or to such other persons as may be designated in writing by the parties, by a
notice given as aforesaid.
11.2 Announcements. Except for disclosures required by law, any public
announcements by Sellers, Ebetech or Etec shall be subject to the prior
written consent of both Sellers and Etec, which consent shall not be
reasonably withheld or delayed.
11.3 Headings. The headings of the several sections of this Agreement are
inserted for convenience of reference only and are not intended to affect the
meaning or interpretation of this Agreement.
11.4 Counterparts. This Agreement may be executed in counterparts, and when
so executed each counterpart shall be deemed to be an original, and said
counterparts together shall constitute one and the same instrument.
11.5 Binding Nature. This Agreement shall be binding upon and inure to the
benefit of the parties hereto. No party may assign or transfer any rights
under this Agreement.
11.6 Schedules. Any document included on a Schedule to this Agreement shall
be deemed to have been referred to in any other schedule or section of this
Agreement, as appropriate.
11.7 Applicable Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed, all
as of the date first above written.
ETEC SYSTEMS, INC., a Nevada corporation
By Philip Koen
Title Vice President & CFO
SELLERS
VCB VENTURE CAPITAL BETEILIGUNGSGESELLSCHAFT mbH, MUNICH,
a corporation organized under the laws of the Federal Republic of Germany
By Guntersdorfer
Title Managing Director
By Bewerunge
Title Managing Director
MRS TECHNOLOGY INC., a Massachusetts corporation
By John L.Steele, Jr.
Title Vice President
Ursula Fazekas represented by power of attorney by her husband
Mr. Peter Fazekas
Dr. Matthias Brunner
Dr. Ralf Schmid
Thomas Schwedes
Volker Daiker
As to the provisions of Articles 5 and 6 only:
EBETECH ELECTRON BEAM TECHNOLOGY VERTRIEBS GmbH, a German corporation
By Matthias Brunner
Title Managing Director
By Richard Haas
Title Managing Director