EXHIBIT 2.1
SHARE SALE-, PURCHASE- AND TRANSFER AGREEMENT
relating to Hermos Informatik GmbH
SHARE SALE- PURCHASE AND TRANSFER-AGREEMENT
dated July 3, 2002
by and between
DIPL.-ING. DIETER HERRMANNSDORFER, Culmerstr. 1 a, 95490 Mistelgau
- "Seller I" -
DIPL.-PHYS. HARALD BUCHMANN, Im Gehaig 21, 95463 Bindlach
- "Seller II" -
- Seller I and Seller II jointly "the Sellers" -
BROOKS AUTOMATION HOLDING GMBH, Goschwitzer Str. 25, 07745 Jena
- "Purchaser" -
and
BROOKS-PRI AUTOMATION, INC., 15 Elizabeth Drive, Chelmsford, Massachusetts
01824, USA
- "Brooks" -
PREAMBLE:
WHEREAS Sellers are the sole shareholders of Hermos Informatik GmbH, which
company has its principal place of business in D-95490 Mistelgau and is
registered in the commercial register of the local court of Bayreuth under HRB
2224 (hereinafter referred to as "Company"), having a total nominal share
capital of Euro 50.000,--.
WHEREAS Seller I owns and holds share interests in the Company in the nominal
amounts of Euro 15.000,--, Euro 17.500,--, Euro 5.000,-- and Euro 4.000,--
(the "A-Shares");
WHEREAS Seller II owns and holds share interests in the Company in the nominal
amounts of Euro 7.500,-- and Euro 1.000,-- (the "B-Shares", A-Shares and
B-Shares jointly "the Shares");
WHEREAS Sellers are willing to sell and transfer to Purchaser and Purchaser is
willing to purchase and acquire from Sellers with commercial effect as of the
date of this agreement (the "Closing Date") the Shares representing 100 % of the
share capital and voting rights of the Company,
NOW THEREFORE the parties hereto agree as follows:
I
PURCHASE, SALE AND TRANSFER OF THE SHARES
ARTICLE 1
PURCHASE AND SALE
Subject to the terms and conditions of this Share Sale-, Purchase- and Transfer
Agreement (the "Agreement"), and in consideration of the purchase price more
specifically defined in Article 3 hereof, Seller I hereby sells to Purchaser and
the Purchaser hereby purchases from the Seller I the A-Shares together with all
rights now or hereafter attached to the A-Shares and Seller II hereby sells to
Purchaser and the Purchaser hereby purchases from Seller II the B-Shares
together with all rights now or hereafter attached to the B-Shares.
ARTICLE 2
TRANSFER OF TITLE
The transfer of the A-Shares and the B-Shares sold to Purchaser pursuant to
Article 1 hereof is hereby effected by way of assignment of the A-Shares by
Seller I to Purchaser and of the B-Shares by Seller II to Purchaser and by the
Purchaser accepting such assignments (the "Closing").
ARTICLE 3
PURCHASE PRICE, PAYMENT AND ADJUSTMENT
3.1. The aggregate purchase price for the A-Shares shall amount to US $
34.030.000,-- (US Dollars thirty four million and thirty thousand) (the
"A-Purchase-Price") and the aggregate purchase price for the B-Shares
shall amount to US $ 6.970.000,-- (US Dollars six million nine hundred
and seventy thousand) (the "B-Purchase Price"), the aggregate purchase
price for the Shares (the "Purchase Price") amounting to US $ 41 Mio.
3.2. The Purchase Price shall be calculated and paid as follows:
3.2.1. That number of Brooks common stock, $.01 par value (the "Brooks
Common Stock"), issued at Closing Date, that represents an
aggregate value equal to US $ 22.534.500,-- shall be paid by the
Purchaser to Seller I at the Closing against presentation of an
acknowledgment corresponding to ANNEX 3.2.1 and signed by Seller
I;
3.2.2. that number of Brooks Common Stock, issued at Closing Date, that
represents an aggregate value equal to US $ 4.615.500,-- shall be
paid by the Purchaser to Seller II at the Closing against
presentation of an acknowledgment corresponding to ANNEX 3.2.1 and
signed by Seller II;
3.2.3. the amount of US $ 2.988.000,-- shall be paid by the Purchaser to
Seller I at the Closing by transfer to his bank account No.
875229176 with HypoVereinsbank AG, Bayreuth;
3.2.4. the amount of US $ 612.000,-- shall be paid by the Purchaser to
Seller II at the Closing by transfer to his bank account No.
875228013; HypoVereinsbank AG, Bayreuth
3.2.5. on Closing Date the cash amount of US $ 332.000,-- shall be paid
by Purchaser and that number of Brooks Common Stock, issued at
Closing Date, that represents an aggregate value equal to US $
3.071.000,-- payable to Seller I shall be paid by Brooks into an
escrow account with State Street Bank and Trust Company (the
"Escrow Agreement");
3.2.6. on Closing Date the cash amount of US $ 68.000,-- shall be paid by
Purchaser and that number of Brooks Common Stock, issued at
Closing Date, that represents an aggregate value equal to US $
629.000,-- payable to Seller II shall be paid by Brooks into an
escrow accountwith State Street Bank and Trust Company;
3.2.7. that number of Brooks Common Stock that represents an aggregate
value equal to US $5.104.500,-- and is payable to Seller I and
that number of Brooks Common Stock that represents an aggregate
value equal to US $ 1.045.500,-- and is payable to Seller II
(jointly "the Residual Stock") shall be reserved for issuance by
Brooks pending adjustment of the Purchase Price in accordance with
Section 3.3 hereof.
3.2.8. The value of the Brooks Common Stock to be transferred on Closing
Date and the value of the Residual Stock (such value of the
Residual Stock hereinafter the "Holdback") shall be calculated
based upon a 20 day trading per share average ending on the second
trading day before the Closing Date (the "Closing Stock Price").
3.3. Subject to the adjustment procedure set out in Subsection 3.4, the
Purchase Price shall be determined and adjusted as follows:
3.3.1. Not later than 30 days after the Closing Date, Sellers shall
prepare and deliver to the Purchaser (i) a balance sheet (the
"Closing Balance Sheet") which shall reflect the book value of the
Company's Acquired Assets (as hereinafter defined) and the Assumed
Liabilities (as hereinafter defined) as of the Closing Date, (ii)
a statement (the "Closing Statement") indicating the difference
between the aggregate net book value of the Acquired Assets and
the aggregate net book value of the Assumed Liabilities (the
"Closing Net Book Value") and (iii) a statement of profit and loss
for the period from January 1, 2002 to the Closing Date (the
"Closing Income Statement") and a calculation of the "Actual
Provisional Income" (in accordance with the definition of
Provisional Income in Section 3.6). The Acquired Assets and
Assumed Liabilities are defined to mean those assets and
liabilities respectively that do directly relate to the Hermos
Embedded Systems (as in more detail defined in ANNEX 3.3.1 (A))
and shall be limited to those assets and liabilities that,
respectively the categories of which are listed in ANNEX 3.3.1
(B)); in particular, but not limited to, Assumed Liabilities shall
not include any liabilities that do not relate to the Hermos
Embedded Systems or any liabilities incurred as a direct result of
the consummation of the transaction, except as otherwise expressly
provided for in this Agreement.
3.3.2. The Closing Balance Sheet shall be prepared on a basis consistent
with the preparation of the balance sheet as of December 31, 2001
(the "Base Balance Sheet") and otherwise in accordance with German
GAAP, taking into consideration the elimination of all assets
except the Acquired Assets and of all liabilities except the
Assumed Liabilities. The Closing Income Statement shall be
prepared on a basis consistent with the preparation of the
statement of profit and loss for the period from January 1, 2001
to December 31, 2001 (the "Base Income Statement") and otherwise
in accordance with German GAAP.
The Closing Balance Sheet and Closing Income Statement delivered
to the Purchaser shall be accompanied by a certificate from
Eismann & Partner,
Weidenberg, the accountants of the Company, that the Closing
Balance Sheet and Closing Income Statement have been prepared on a
basis consistent with the preparation of the Base Balance Sheet
and Base Income Statement, respectively with the provisions as
stated in Subsection 3.3.1 above. The Closing Balance Sheet and
Closing Income Statement shall also be accompanied by all
necessary and appropriate supporting work papers and materials. If
these work papers and materials have not been provided or prepared
in a professional and workmanlike manner, the Review Period
referenced in Sub-Section 3.3.4 hereof shall be extended to give
Purchaser's accountants sufficient time to complete their audit of
the Closing Balance Sheet and the Closing Income Statement.
Inventory shall be valued as provided in Section 4.20 hereof by
the Sellers and Purchaser as of the close of business on the
Closing Date based on a physical count undertaken on the mutually
agreed upon date that is on or near the Closing Date at which all
parties or their representatives may be present to observe.
3.3.3. To the extent that the Closing Net Book Value differs from the
comparable net book value (the "Base Net Book Value") as derived
from the pro forma balance sheet prepared in accordance with
German GAAP as attached hereto as ANNEX 3.3.3 (the "Pro Forma
Balance Sheet"), then the Purchase Price shall be adjusted on a
Dollar-for-Dollar basis by the amount of such difference as
hereinafter set forth. The Base Net Book Value equals Euro
294.083,--.
3.3.4. Following receipt of the Closing Balance Sheet and the Closing
Income Statement, Purchaser and Purchaser's accountants will be
afforded a period of 90 calendar days (the "Review Period") to
audit, at Purchaser's costs, the Closing Balance Sheet and the
Closing Income Statement. At or before the end of the Review
Period, Purchaser will either (i) accept the Closing Balance
Sheet, the Closing Statement, the Closing Income Statement and the
Actual Provisional Income in their entirety, in which case the
Closing Net Book Value will be deemed to be as set forth on the
Closing Statement and the Closing Balance Sheet, the Closing
Income Statement, the Actual Provisional Income and the Closing
Statement shall be final, binding and conclusive on Sellers and
Purchaser or (ii) deliver to Sellers a written
notice in accordance with Subsection 3.3.6 disputing the Closing
Balance Sheet and/or the Closing Statement and/or the Closing
Income Statement and/or the Actual Provisional Income; to the
extent that Purchaser has not provided Sellers with written notice
in accordance with Subsection 3.3.6 at or before the end of the
Review Period, the Closing Balance Sheet, the Closing Statement,
the Closing Income Statement and the Actual Provisional Income
shall be deemed accepted by Purchaser and shall be final, binding
and conclusive on Sellers and Purchaser.
3.3.5. Within ten days following the later of (i) the date the Closing
Balance Sheet and the Closing Statement are accepted by Purchaser
or (ii) the final, binding and conclusive determination of any
dispute with respect to the Closing Balance Sheet or the Closing
Statement as provided in Subsection 3.3.6:
(i) If the Closing Net Book Value is less than the Base Net
Book Value and such difference is less than or equal to the
Holdback, then Brooks shall pay or cause the Purchaser to
pay to the Sellers an amount of Brooks Common Stock equal
to the aggregate value of the Holdback minus such
difference;
(ii) if the Closing Net Book Value is less than the Base Net
Book Value and such difference is greater than the
Holdback, then the Sellers shall pay to the Purchaser an
amount of Brooks Common Stock the value of which is equal
to the Base Net Book Value minus the Closing Net Book Value
minus the Holdback;
(iii) if the Closing Net Book Value is greater than or equal to
the Base Net Book Value then Brooks shall pay or cause the
Purchaser to pay to the Sellers an amount of Brooks Common
Stock the value of which is equal to the Holdback plus such
difference, if any.
(iv) Any values referred to under this Subsection 3.3.5 shall be
calculated on the basis of the calculation set out in
Subsection 3.2.8.
(v) Any amounts payable to the Sellers under this Subsection
3.3.5 and Section 3.6 shall be distributed amongst the
Sellers proportionally,
i.e. Seller I to receive 83 % and Seller II to receive 17 %
thereof. For any amount payable by the Sellers under this
Subsection 3.3.5, or under Section 3.6, the Sellers shall
be liable in the same proportions.
(vi) Any Brooks Common Stock to be returned to Purchaser under
Subsection 3.3.5 shall be returned first from the
Restricted Shares (as defined in Annex 3.2.1) then from
Unrestricted Shares (as defined in Annex 3.2.1). The
Residual Stock, and any further Brooks Common Stock to be
issued and delivered to Sellers under Subsection 3.3.5,
shall be counted as Restricted Shares for the purpose of
Section 1.6 of Annex 3.2.1.
(vii) Payment of Brooks Common Stock to be effected under this
subsection 3.3.5. shall be made by delivery of share
certificates.
3.3.6. In the event that any dispute shall arise as to the manner of
preparation or the accuracy of the Closing Balance Sheet, Closing
Statement, Closing Income Statement or Actual Provisional Income
prior to the expiration of the Review Period, the Purchaser shall
provide Sellers with written notice of each disputed item and
specify the reason therefor. In the event of such a dispute,
Purchaser and Sellers shall attempt to reconcile in good faith
their differences as to such items within 20 calendar days (the
"Resolution Period") of Sellers' receipt of such notice, and any
resolution by them as to any disputed items shall be final,
binding and conclusive on Sellers and Purchaser. If Purchaser and
Sellers are unable to reach a resolution with such effect within
the Resolution Period, Purchaser and Sellers shall submit the
dispute to an independent auditor of accepted reputation, whose
determination of such dispute shall be final, binding and
conclusive on the parties. If the Purchaser and Sellers cannot
agree on an independent auditor within 10 calendar days of the end
of the Resolution Period, Purchaser and Sellers shall cause the
Chamber of Industry and Commerce of Frankfurt to appoint such
independent auditor. Fees and expenses of such independent auditor
and the Chamber of Industry and Commerce of Frankfurt/Main shall
be paid by Sellers if the independent auditor determines either
(A) that the actual Closing Net Book Value falls short of
the Closing Net Book Value indicated in the Closing Statement by
5% or more or (B) Actual Provisional Income falls short of
Estimated Provisional Income by 5% or more. In all other cases,
such fees and expenses shall be paid by Purchaser.
3.4. The number of shares issued to the Sellers in consideration of the sale
and transfer of the Shares shall be adjusted as follows:
3.4.1. The "Original Unrestricted Shares Dollar Value" shall mean the
total dollar amount calculated by multiplying the number of
Unrestricted Shares (as defined in Annex 3.2.1) issued at Closing
by the Closing Stock Price. The "Bench Price" shall mean the
average closing price of a share of Brooks Common Stock for the 20
consecutive days on which the Nasdaq National Market is open for
business ending on the Trigger Date as reported on the Nasdaq
National Market (subject to appropriate adjustment for any stock
split, reverse split, stock dividend, reorganization,
recapitalization or other like change with respect to the Brooks
Common Stock occurring after the date hereof but, prior to the
Trigger Date). The "Trigger Date" shall mean the day on which the
Registration Statement (as defined in Section 13.1.2(a) hereof) is
declared effective by the SEC (as defined in Annex 3.2.1). The
"Bench Unrestricted Share Dollar Value" shall mean the total
dollar amount calculated by multiplying the total number of the
Unrestricted Shares issued at the Closing by the Bench Price.
3.4.2. The parties agree that the number of Unrestricted Shares shall be
adjusted on the Trigger Date as follows:
(i) If the quotient of the Bench Price divided by the Closing
Stock Price is equal to or greater than 0,9, but less than
or equal to 1,1, then, there shall be no adjustment to the
number of Unrestricted Shares;
(ii) If the quotient of the Bench Price divided by the Closing
Stock Price is less than 0,9, then, subject to the
limitations in Subsection 3.4.3 below, Brooks shall issue
to Sellers an additional whole number of shares of Brooks
Common Stock (collectively, the
"Bonus Shares") such that the sum of (a) the dollar value
of such Bonus Shares when valued at the Bench Price plus
(b) the Bench Unrestricted Share Dollar Value shall equal
the product of 0,9 times the Original Unrestricted Shares
Dollar Value; or
(iii) If the quotient of the Bench Price divided by the Closing
Stock Price exceeds 1,1, then, subject to the limitations
in Subsection 3.4.4 below, the Sellers shall immediately
forfeit and transfer for no consideration to Purchaser that
whole number of shares of Brooks Common Stock (the "Forfeit
Shares") such that the dollar value of such Forfeit Shares
when valued at the Bench Price shall equal the result
obtained when (a) the product of 1,1 multiplied by the
Original Unrestricted Share Dollar Value is subtracted from
(b) the Bench Unrestricted Share Dollar Value.
3.4.3. Notwithstanding the provisions of Subsection 3.4.2 (ii), in no
event shall the number of Bonus Shares issuable to the Sellers
exceed a number equal to 10 % of the number of shares determined
by dividing the Original Unrestricted Shares Dollar Value (US $
18.500.000,--) by the Bench Price.
3.4.4. Notwithstanding the provisions of Subsection 3.4.2 (iii), in no
event shall the number of Forfeit Shares required to be forfeited
by Sellers exceed a number equal to 10 % of the number of shares
determined by dividing the Original Unrestricted Shares Dollar
Value (US $ 18.500.000.--) by the Bench Price.
3.4.5. 83 % of any Bonus Shares issued pursuant to Subsection 3.4.2 (ii)
shall be issued to Seller I and 17 % any Bonus Shares issued
pursuant to Subsection 3.4.2 (ii) shall be issued to Seller II.
3.4.6. Seller I shall be responsible for forfeiting and transfer to
Purchaser 83% of the Forfeit Shares and Seller II shall be
responsible for forfeiting and transfer to Purchaser 17% of the
Forfeit Shares. The Forfeit Shares shall be returned first from
the Restricted Shares, then from the Unrestricted Shares.
3.5. "Purchase Shares" means the shares of Brooks Common Stock issued or to be
issued in connection with this Agreement.
3.6. On the Closing Date, Purchaser shall deliver cash equal to 83% of the
Estimated Provisional Income to Seller I by transfer to bank account no.
300 92 62 with HypoVereinsbank AG, Bayreuth, and equal to 17% of the
Estimated Provisional Income to Seller II by transfer to bank account no.
301 89 20 with HypoVereinsbank AG, Bayreuth. The Estimated Provisional
Income is Euro1.100.000,-- and reflects the parties' estimate of
Provisional Income. Provisional Income means the difference of the net
profits reflected on the Closing Income Statement (determined in
accordance with German GAAP) including any net (after deduction of, among
other things, any existing or future tax liabilities and other expenses
or liabilities attributable to such disposition of assets) income
received on or prior to Closing Date upon the disposition of the assets
not relating to the Hermos Embedded Systems minus all amounts previously
paid or advanced to the Sellers in respect of the Provisional Income. The
amount so paid shall be deemed additional Purchase Price. Sellers and
Purchaser will prepare and agree upon the Closing Income Statement and
Actual Provisional Income in accordance with Sections 3.3.1, 3.3.2, 3.3.4
and 3.3.6. Within 10 days following the later of (i) the date the Closing
Income Statement and the Actual Provisional Income are accepted by
Purchaser or (ii) the final, binding and conclusive determination of any
dispute with respect to the Closing Income Statement and the Actual
Provisional Income as provided in Subsection 3.3.6:
(i) if the Actual Provisional Income is less than the Estimated
Provisional Income then the Sellers shall pay to the
Purchaser an amount of cash equal to such difference; or
(ii) if the Actual Provisional Income is greater than the
Estimated Provisional Income then the Purchaser shall pay
to the Sellers an amount of cash equal to such difference.
ARTICLE 4
SELLERS' GUARANTEES
Each of the Sellers represents, warrants and guarantees as to himself and as to
the Company that the following statements are true as of the date hereof :
4.1. Sellers each have the requisite power and authority to execute, deliver
and perform this Agreement and to consummate the transactions
contemplated thereby. The execution, delivery and performance of this
Agreement by Sellers does not violate any law or any agreement or
instrument by which either of the Sellers is bound. Upon execution and
delivery by the Sellers, this Agreement will constitute a legally valid
and binding obligation of the Sellers.
4.2. Except as provided in the Articles of Association [Gesellschaftsvertrag],
neither of the Sellers has agreed to issue or sell any share interests in
the Company to a third party and neither of the Sellers is a party to any
written or oral agreement which grants to any third party any right of
first refusal, option or other arrangement to acquire, at any time, share
interests in the Company. In particular, any rights of first refusal or
other acquisition rights as provided for in the Articles of Association
of the Company have unconditionally, irrevocably and validly been waived
by the respective favoured parties.
4.3. Unless otherwise disclosed in ANNEX 4.3, no litigation, proceeding or
investigation which could have any material adverse effect on the ability
of either of the Sellers to perform their obligations hereunder is known
to either of the Sellers.
4.4. Seller I owns the A-Shares and Seller II owns the B-Shares in the Company
free and clear of all restrictions, encumbrances and rights of others and
Seller I has full and unrestricted power to sell and transfer the
A-Shares and Seller II to sell and transfer the B-Shares to Purchaser.
The shares were not derived from a tax-free contribution of business or
partnership interests during the last seven years. Purchaser at the
Closing Date shall own the A-Shares and the B-Shares free and clear of
all restrictions, encumbrances and rights of others, including those of
the Sellers.
4.5. The registered share capital of the Company amounts to Euro50.000,-- and
is fully paid in, and has not been repaid or in any other way reduced.
4.6. The Company is a limited liability company duly organised and validly
existing under the laws of the Federal Republic of Germany. The Company
has all requisite corporate powers to own, lease and operate its property
and, except as otherwise stated in this Agreement, to carry on its
business as now being conducted in all material respects in particular to
produce, distribute and in any other way make use of the Hermos
Embedded Systems. The Articles of Association of the Company in its
present legally binding version have been presented to the Purchaser.
4.7. Unless otherwise disclosed in ANNEX 4.7, the Company has had and
continues to have all necessary governmental or regulatory licenses,
permits or authorizations, other than those which, if not obtained, would
not have a material adverse effect on the operations, prospects or
financial condition of the Company, to enable it to carry on its business
as now conducted and as it was conducted so far. All such licenses,
permits and authorizations, if any, are valid and existing and no
circumstance exists, and to the best knowledge of Seller, no event shall
occur as a consequence of the execution of this Agreement which would
cause any of them to be suspended, cancelled or revoked.
4.8. The annual financial results and balance sheets of the Company as per
December 31, 1999, 2000 and 2001 and the audit reports relating thereto
as well as the Closing Balance Sheet (the "Financial Statements") have
been prepared in accordance with applicable law and in accordance with
German generally accepted accounting principles and give a true, fair and
complete view of the Company's assets, liabilities, foreseeable risks and
results. Such Financial Statements apply bases and policies of accounting
which have been consistently applied by the Sellers and the Company. In
particular, the Financial Statements contain appropriate reserves and
provisions for all foreseeable risks, liabilities or other obligations -
disclosed to the Purchaser or not - including, but not limited to, taxes
for which the Company is, or has been, or may become, liable in respect
of periods prior to and including the Closing Date.
4.9. The Company has fulfilled all its obligations in relation to tax, duties
and social security contributions and filed all requisite declarations
and forms within the required time limits. The Company has paid all
taxes, duties and social security contributions within the time limits
set out by the laws and regulations currently in force.
4.10. Unless otherwise disclosed in ANNEX 4.10, the present conduct of the
business of the Company up to Closing Date is in compliance with all
applicable laws and regulations. There are no legal or administrative
proceedings or investigations pending or, to the best knowledge of
Sellers, threatened against the Company or any of its managers or
employees in connection with the business operation of the Company or any
of its managers' or employees' activities for the Company and, to the
best knowledge of Sellers, no such proceedings or investigations will
arise as a consequence of the execution of this Agreement. The Company
will not incur any costs, expenses, or liabilities as a
consequence of legal or administrative proceedings pending or, to the
best knowledge of Sellers, threatened against it, whether disclosed to
Purchaser or not, except to the extent accrued for in the Base Balance
Sheet.
4.11. Unless otherwise disclosed in ANNEX 4.11, Sellers are not aware of any
condition which would materially adversely affect the business operation
of the Company from being carried on in essentially the same manner as
its business is now being conducted, nor is there for the Sellers to the
best knowledge of Sellers any reason to believe that such a condition
will exist in the foreseeable future with respect to the Company. No
application to initiate insolvency or settlement or liquidation
proceedings has been filed against the Company nor to the best knowledge
of Sellers do any facts exist which may cause such applications to be
made.
4.12. The Company has good and marketable title to or validly holds interest in
the properties and assets used by it, located on its premises or shown on
the Base Balance Sheet and the Pro Forma Balance Sheet or acquired after
the date thereof, free and clear of all encumbrances except for vendors'
security interests arising in the ordinary course of business with
respect to movable assets.
All machinery and equipment used by the Company is in a state of normal
wear and tear and in a condition which is appropriate to provide
continued use as it is presently used. This machinery and equipment will
enable the Company to continue its operation after Closing Date as it was
conducted before in all material respects.
4.13. The Company owns or has the right to use, pursuant to license or
sub-license agreements or permission, all Intellectual Property (as
defined below) used in its business as presently conducted and as
reasonably expected by the Sellers to be conducted. The Company and
Sellers have not interfered with, infringed upon, or otherwise come into
conflict with any intellectual property rights of any other person or
party and have not received any complaint, demand or notice, or become
aware of any threat, alleging such interference, infringement or
conflict.
Except as otherwise disclosed in Annex 4.13, Sellers and the Company have
not granted any license or sub-license of any rights with respect to any
intellectual property used in the business of the Company.
4.14. ANNEX 4.14 (A) hereto lists the following contracts and other agreements
to which the Company is a party:
a) any agreement concerning a partnership or joint venture;
b) any agreement concerning confidentiality or non-competition which
restricts the freedom of the Company to carry on its business in
any part of the world;
c) any agreement with any of the Sellers or any of their family
members or any of the companies affiliated to the Sellers, which
agreements shall have been entered into and executed at arms'
length conditions;
d) any license agreement, agency agreement, distributorship
agreement;
e) any agreement under which a default or termination is reasonably
likely and would have a material adverse effect on the business,
financial condition, or operations of the Company;
f) any agreement which cannot be terminated within 12 months from
Closing Date (except employment agreements);
g) any agreement with the employees listed in ANNEX 4.14 (B) (the
"Key Persons"); and
h) a list of the ten largest (by sales during last fiscal year of the
Company) customers and any agreements entered into with them.
Unless otherwise disclosed in ANNEX 4.14 (A), the contracts listed in
ANNEX 4.14 (A) do not provide for the right of the other party to
terminate or adversely change its conditions as a result of this
Agreement or its execution.
4.15. Unless otherwise disclosed in ANNEX 4.15, no product or services
manufactured, sold, leased, rendered or delivered by the Company prior to
Closing Date is or will be subject to any guarantee or warranty claims or
other indemnity under the applicable standard terms and conditions of
sale and/or statutory law nor is or will the Company become subject to
any product warranty claims relating to design or manufacture occurring
prior to closing date.
4.16. The Company has operated its business in full compliance with all
applicable environmental and other laws, regulations or ordinances. To
the best knowledge of Sellers, there is no basis for any action or
investigation directed against Company for failure to comply with such
laws, regulations or ordinances.
4.17. Unless otherwise disclosed in ANNEX 4.17, since December 31, 2001 there
has not been any material adverse change in the business, financial
condition, operations or results of operations of the Company.
4.18. Unless otherwise disclosed in ANNEX 4.18, all foreseeable risks or
damages resulting from the Company's operations are covered by adequate
insurance (for all risks normally insured against by companies carrying
on the same business as the Company) and all premiums due have been paid.
4.19. All of the accounts receivable, trade accounts, note receivable, contract
receivables, unbilled invoices and other receivables ("Receivables") of
the Company shown or reflected on the Base Balance Sheet, less a reserve
for bad debts in the amount shown on the Base Balance Sheet are, and
those to be reflected on the Closing Balance Sheet, less a reserve for
bad debts in the amount shown on the Closing Balance Sheet, will be valid
and enforceable claims, which arose out of transactions with unaffiliated
parties, fully collectable, subject to reserves shown on the Closing
Balance Sheet, within 180 days of Closing date through normal means of
collection and subject to no set-off, defense or counterclaim.
4.20. All inventory of finished goods, work in progress and raw materials of
the Company reflected on the Base Balance Sheet are, and those to be
reflected on the Closing Balance Sheet will be, of a quantity and quality
normally saleable in the ordinary course of business at commercially
reasonable prices consistent with the Company's prior experience except
to the extent of the obsolete inventory reserve in the amount shown on
the Base Balance Sheet or to be shown on the Closing Balance Sheet. All
such inventories, other than obsolete inventory, are valued on a lower of
cost or market basis and in accordance with the Company's normal
valuation methods and policies, consistently applied. Purchase
commitments for raw materials and parts are not in excess of normal
requirements and none are at prices in excess of current market prices.
Since the date of the Base Balance Sheet, no inventory items have been
sold or disposed of except through sales in the ordinary course of
business at prices no less than prevailing market prices.
The value of the finished goods inventory on the Base Balance Sheet, and
on the Closing Balance Sheet, shall not exceed the market price.
4.21. For purposes of this Agreement, "Intellectual Property" means all
patents, patent applications, designs, design applications, trademarks
(whether registered or not) or service marks, trademark or service mark
applications, trade names, copy rights, masks works, domain names, branch
names or other statutorily defined rights to intellectual property under
the laws of the Federal Republic of Germany, the European Union, the
United States or any other relevant jurisdiction (collectively "Statutory
Intellectual Property"), all trade secrets and manufacturing and other
secret processes and technologies and know-how (collectively "Trade
Secrets") and any and all common law right in intellectual property.
(i) Unless otherwise disclosed in ANNEX 4.21 (A), the Company
owns or has the unrestricted and perpetual right to use
without payment of any royalty, all Intellectual Property
rights necessary to or regularly used in the conduct of the
Company's business as presently conducted and reasonably
expected by the Sellers to be conducted and conducted so
far. All material rights of ownership or use of Statutory
Intellectual Property currently held by the Company are
listed on ANNEX 4.21 (B) (the "Company's Statutory
Intellectual Property") except for Trade Secrets which have
not been reduced to writing.
(ii) Unless otherwise disclosed in ANNEX 4.21 (C) all rights to
the Company's Statutory Intellectual Property
- have been duly registered, filed in or issued by the
European Patent Office, the German Patent Office, the U.S.
Patent and Trademark Office or the corresponding offices of
other countries identified on said Annex,
- have been properly maintained and renewed in accordance
with all applicable laws and regulations in such countries,
and
- in the case of patents and patent applications filed in the
name of individual inventors, have been duly assigned to
the Company and such assignments have been recorded by the
appropriate governmental agencies.
(iii) Unless otherwise disclosed in ANNEX 4.21 (D) all rights to
the Company's Intellectual Property
- are owned by the Company, free and clear of all licenses,
sublicenses or liens such that no other person has any
right or interest in or license to use any of the
Intellectual Property,
- are freely transferable (except as otherwise required by
law) and
- are not subject to any outstanding order, decree, judgment
or stipulation restricting its commercial use.
(iv) Unless otherwise disclosed in ANNEX 4.21 (E), the Company
requires all employees to execute a confidentiality,
non-competition and non-disclosure agreement in a form
which has been provided to the Purchaser. All such
agreements are valid, binding and enforceable against the
parties thereto.
(v) No proceedings to which the Company is or, to the knowledge
of Sellers, is likely to become a party are pending or
threatened which challenge the rights of the Company in
respect of the Intellectual Property or charge the Company
with infringement of any other persons' rights in
Intellectual Property.
(vi) To the best knowledge of the Sellers the Company is not
infringing upon any valid Intellectual Property rights of
any other person. To the best knowledge of Sellers, none of
the rights in the Company's Intellectual Property are being
infringed by any other person.
(vii) All patent and other legal protection necessary to protect
the Company's interests and future business prospects has
been obtained by the Company and continues to validly
exist.
4.22. ANNEX 4.22 contains a full list of all employees that shall be employed
by the Company at Closing Date. None of these employees has terminated
its employment contract or has given notice of termination or has
indicated to Company or Sellers any intention to terminate its employment
contract. Except for those employees listed on ANNEX 4.22, there do not
exist as per Closing Date and thereafter any other employment contracts
between the Company and any employees or quasi employees
(Scheinselbstandige).
4.23. Unless otherwise disclosed in ANNEX 4.23 there is no litigation,
arbitration, investigation or similar proceeding pending against or to
the best knowledge of Sellers, otherwise involving the Company, the
Shares or any of the managing directors or employees of the Company (in
their capacities as such) and there are no outstanding court orders by
which the Company is bound and which materially restrict the business
operation, prospects, assets or condition of the Company or will result
in any material adverse change in the business operation, prospects or
condition of the Company. To the best knowledge of the Sellers, Sellers
do not have any reason to believe that any such action, litigation,
arbitration or investigation may be brought against the Company.
4.24. The corporate income tax credit in the meaning of sect. 37 para. 1 CITA
(Korperschaftsteuergesetz) has been calculated to be Euro0,00 in
accordance with the applicable legal provisions.
4.25. Neither this Agreement, any Annex, document or certificate delivered by
or on behalf of any of the Sellers, or the Company pursuant to this
Agreement, nor any exhibit or schedule to any of the foregoing (including
financial statements and footnotes), contains any untrue statement of a
material fact, or omits to state a material fact necessary to make the
statements herein or therein, in light of the circumstances in which they
were made, not misleading. To the knowledge of Sellers, there is no fact
which has had or may have a material adverse effect upon the Company
which has not been set forth herein.
ARTICLE 5
BROOKS' AND PURCHASER'S GUARANTEES
Each of Brooks and Purchaser represents, warrants and guarantees that the
following statements are true as of the date hereof:
5.1. Purchaser is a limited liability company duly organized, validly existing
and in good standing under the laws of the Federal Republic of Germany
and has all requisite corporate power to perform its obligations
envisaged under this Agreement.
5.2. The execution, delivery and performance of this Agreement and of the
transactions contemplated hereby do not and will not violate the
provisions of or constitute a breach or default under any of its
constitutional documents or of any law or agreement or instrument by
which the Purchaser or any of its assets are bound. Upon execution and
delivery, this Agreement will constitute a legally valid and binding
obligation of Purchaser.
5.3. No litigation, proceedings or investigation has been initiated or is
pending or threatened against Purchaser which could have a material
adverse effect on the ability of Purchaser to perform its obligations
hereunder.
5.4. Brooks is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, US and has all
requisite corporate power and authority to perform its obligations
envisaged under this Agreement.
5.5. The execution, delivery and performance of this Agreement and of the
transactions contemplated thereby will not violate the provisions of or
constitute a breach or default under or require any consent under any of
Brooks constitutional documents or of any law or agreement or instrument
by which Brooks or any of its assets are bound. Upon execution and
delivery, this Agreement will constitute a legally valid and binding
obligation of Brooks.
5.6. No litigation, proceedings or investigation has been initiated or is
pending or threatened against Brooks which could have a material adverse
effect on the ability of Brooks to perform its obligations hereunder.
5.7. The Brooks Reports (as defined in Annex 3.2.1) constitute all of the
documents filed by Brooks with the SEC since September 30, 2001, other
than any registration statement on Form S-8. As of their respective
dates, the Brooks Reports did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
consolidated audited financial statements and consolidated unaudited
interim financial statements of Brooks
included in the Brooks Reports (i) comply as to form in all material
respects with applicable accounting requirements and the published rules
and regulations of the SEC with respect thereto; (ii) have been prepared
in accordance with US GAAP applied on a consistent basis throughout the
periods covered thereby (except as may be indicated by Form 10-Q under
the Securities Exchange Act of 1934, as amended, and subject to normal
recurring year-end adjustments); (iii) fairly present the consolidated
financial condition, results of operations and cash flows of the Brooks
and each of its subsidiaries as of the respective dates thereof and for
the periods referred to therein; and (iv) are consistent in all material
respects with the books and records of the Brooks.
5.8. The Purchase Shares have been duly authorized and upon issuance in
accordance with this Agreement will be validly issued, outstanding, fully
paid and nonassessable. All outstanding Securities of Brooks were issued
in compliance with all applicable Securities laws.
5.9. The authorized capital stock of Brooks consists of (i) 100.000.000,
shares of common stock, of which 33.910.924, shares are issued and
outstanding as of June 21, 2002, and (ii) 1.000.000, shares of preferred
stock, of which no shares are issued and outstanding. All of the issued
and outstanding shares of Brooks capital stock are duly and validly
issued and outstanding and fully paid and nonassessable. None of the
outstanding shares of Brooks capital stock has been, and none of the
shares of Brooks capital stock to be issued hereunder will be, issued in
violation of any preemptive rights of the current or past shareholders of
Brooks.
5.10. Since March 31, 2002, there has not been any Material Adverse Change with
regard to Brooks. "Material Adverse Change" or "Material Adverse Effect"
means, when used in connection with Brooks, any change, effect, event,
occurrence or state of facts that is, or would reasonably be expected to
be, materially adverse to the business, financial condition or results of
operations of Brooks and its subsidiaries, taken as a whole, other than
any such change, effect , event, occurrence or state of facts (a)
relating to general economic, regulatory or political conditions, except
to the extent such change, effect, event, occurrence or state of facts
disproportionately affects Brooks and its subsidiaries, taken as a whole,
(b) relating to the semiconductor capital equipment industry, the flat
panel display manufacturing equipment industry, or the data storage
industry generally, except to the extent such change, effect, event,
occurrence or state
of facts disproportionately affects Brooks and its subsidiaries, taken as
a whole, (c) relating to any change in the trading price of the Brooks
Common Stock or (d) relating to any reduction in force. A failure by
Brooks to meet the revenue, earnings or bookings predictions of equity
analysts as reflected in the First Call consensus estimate or any other
revenue, earnings or bookings predictions, for any period ending on or
after the date of this Agreement shall not, in and of itself, and apart
from the underlying event, occurrence or state of facts, if any, be
deemed to constitute a Material Adverse Change or a Material Adverse
Effect.
ARTICLE 6
INTENTIONALLY LEFT BLANK
ARTICLE 7
COVENANTS OF BROOKS
With a view to making available to the Sellers the benefit of certain rules and
regulations of the SEC which may permit the sale of the Purchase Shares to the
public without registration, Brooks agrees to use its best efforts to (i) make
and keep public information available, as and when required by the U.S.
securities laws and (ii) file with the SEC, in a timely manner and at its sole
cost and expense, all reports and other documents, when and as required by the
U.S. securities laws and (iii) comply at all times in all material respects with
all applicable criteria and requirements within Brooks' reasonable control
imposed by the relevant market of Nasdaq.
ARTICLE 8
INDEMNIFICATIONS, STATUTE OF LIMITATION
8.1. Sellers are severally and not jointly responsible for, and shall hold
harmless, indemnify and defend Purchaser (and Brooks, Brooks' direct and
indirect subsidiaries and each of Purchasers' and Brooks' managers and
employees) and the Company - as the case may be - from and against any
loss, claim, cause of action, damage, liability and reasonable expenses,
including court costs and reasonable attorneys' and consultants' fees,
resulting from, arising out of or relating to any taxes, social security
payments, and other dues imposed by public authorities relating to
periods prior to and including Closing Date or caused by the execution of
this Agreement, irrespective of whether such outstanding payments or the
risk thereof was disclosed to the Purchaser;
provided, however, Purchaser shall pay those notarial costs specified in
Section 13.3. The parties agree that none of the limitations of liability
provided for under Article 8.2 shall apply to Seller's liability under
this Article 8.1; however, Sellers shall not be liable under this Article
8.1 if and to the extent the tax and other liabilities of the Company,
for which Sellers are responsible under this Article 8.1 have properly
been accrued for in the Closing Balance Sheet of the Company or if tax
liabilities are balanced by corresponding tax credits.
8.2. To the exclusion of other remedies, Sellers severally and not jointly
agree to hold harmless, indemnify and defend Purchaser (and Brooks,
Brooks' direct and indirect subsidiaries and each of Purchasers' and
Brooks' managers and employees) and the Company - as the case may be -
from and against any loss, claim, cause of action, damage, liability and
reasonable expense including but not limited to court costs and
reasonable attorneys' and consultants' fees, resulting from, arising out
of or relating to
- any breach, unless otherwise stated in this Agreement, whether
caused at fault or not ("verschuldet oder unverschuldet"), by any
of the Sellers of any guarantee, representation or warranty made
by any of the Sellers herein,
- the failure by any of the Sellers to perform any covenant,
obligation or agreement made herein,
provided that liability, except Sellers' liability under Article 8.1, is
excluded if it does not exceed an aggregate amount of US $25.000,-- and
further provided that Sellers' liability, except Sellers' liability under
Article 8.1, shall be excluded in respect of (i) facts that have prior to
the signing of this Agreement been correctly and completely disclosed to
Purchaser and its authorized advisors and that are attached to this
Agreement as ANNEXES 4.3 - 4.23 , unless such disclosure shall by express
stipulation of the parties not restrict the extent of Sellers' guarantees
(ii) liabilities specifically reserved for or accrued on the Closing
Balance Sheet to the extent of such reserve or accrual. The right of
rescission (Wandelung, Rucktritt) is excluded. The aggregate liability of
the Sellers pursuant to this Section 8.2 shall be limited to 100% of the
Purchase Price except that Sellers' aggregate liability for any loss,
claim, cause of action, damage, liability and expense relating to
Intellectual Property (as defined in section 4.21) ("Intellectual
Property Claims") shall be limited to 50% of the Purchase
Price and, for Intellectual Property Claims that are raised after the
elapse of 36 months from Closing Date, to 20% of the Purchase Price,
which liability for Intellectual Property Claims shall in no way be
excluded, reduced or in any other way affected by the disclosure by
Sellers of facts (annexed to this Agreement or not) relating to
Intellectual Property or Intellectual Property Claims, provided, however,
that Sellers' liability shall be excluded in respect of facts disclosed
in Annex 4.21 (d).
8.3. Any indemnification to be made by Sellers under this Agreement may be
effected by payment in cash or, at the option of Sellers and up to a
maximum amount of 90% of the amount of indemnification by delivery of
Brooks Common Stock (including Restricted Shares) valued for the purpose
of effecting indemnification at the Closing Stock Price.
The parties agree that Purchaser may, but shall not be obliged to, set
off any claims against Sellers under this Article 8 against any of
Purchaser's payment obligations, including the obligation under Article 3
to pay the Purchase Price. The parties furthermore agree that the
Purchaser is entitled to settle any claims due to him under this Article
8 by having the escrow agent distribute to him in accordance with the
Escrow Agreement shares and funds that are held in escrow up to the
amount of the respective claims raised by the Purchaser.
8.4. All rights and remedies of the Purchaser (and Brooks, Brooks' direct and
indirect subsidiaries and each of Purchasers' and Brooks' managers and
employees) and the Company under this Article 8 shall be subject to the
statute of limitation (Verjahrung) which shall become effective 36 months
after Closing Date, except that Seller's obligation to hold the Purchaser
and the Company harmless against (i) Intellectual Property Claims shall
be time-barred effective 60 months after Closing Date , (ii)
environmental claims shall not be time barred and, (iii) tax claims
(including attributable expenses) against the Company shall be subject to
a statute of limitation of 6 months after the final completion of the tax
audit, or, as the case may be and whichever comes later, the relevant tax
assessment procedure becomes final and non-contestable and after the
relevant tax assessment no longer is subject to potential alterations or
modifications by the tax authorities (Eintritt der
Festsetzungsverjahrung). Purchaser will ensure that Sellers are informed
without
delay about any tax audit and that Sellers' representatives will be
allowed to participate in such audits for periods up to the Closing Date.
Both parties shall work together prior to any settlement with the tax
authorities which could result in a claim against Sellers. Sellers
reserve the right to decide that the Company should object to tax
assessments relating to periods prior to Closing Date at Sellers' costs.
8.5. Article 8 shall be independent of and not affected by Section 13.1.2.
8.6. To the exclusion of other remedies, Purchaser and Brooks jointly and
severally agree to hold harmless, indemnify and defend Sellers from and
against any loss, claim, cause of action, damage, liability and
reasonable expenses including but not limited to court costs and
reasonable attorneys' and consultants' fees, resulting from, arising out
of or relating to
- Any breach, unless otherwise stated in this Agreement, whether
caused at fault or not ("verschuldet oder unverschuldet"), by
Purchaser and/or Brooks of any guarantee, representation or
warranty made by any of them herein,
- The failure by Purchaser and/or Brooks to perform any covenant,
obligation or agreement made herein,
provided that liability is excluded if it does not exceed an aggregate
amount of US$25,000.-- and further provided that Purchaser's and Brooks'
liability shall be excluded in respect of facts that have prior to the
signing of this Agreement been correctly and completely disclosed to
Sellers and its authorized advisors and that are expressly stated in this
Agreement. The aggregate liability of Purchaser and Brooks shall be
limited to 75% of the Purchase Price. All rights and remedies of the
Sellers under this Article 8 shall be subject to the statute of
limitation (Verjahrung) which shall become effective 36 months after
Closing Date.
8.7. The representations, warranties and guarantees within the meaning of this
Agreement and the indemnifications in relation thereto, constitute a
special agreement negotiated and agreed upon between the parties
specifically for the purposes of this transaction in accordance with
Section 311 (1) German Civil Code. Accordingly, the representations,
warranties and guarantees within the meaning of this Agreement are
subject to all the limitations set forth in this Agreement, in
particular, any limitations set forth in the respective statement
contained in Articles 4, 5 and 8 and the limitations on liability set
forth in this Article 8. The parties agree that none of the
representations, warranties and guarantees contained in this Agreement
constitutes a
guarantee with respect to the quality of the object of sale (Garantie fur
die Beschaffenheit der Sache) within the meaning of Section 444 2nd
alternative German Civil Code in the version effective as of January 1,
2002 nor a guarantee with respect to the quality of the purchase object
(Beschaffenheitsgarantie) within the meaning of Section 443 German Civil
Code in the version effective as of January 1, 2002. The legal
consequences of a possible violation of the representations, warranties
and guarantees shall be determined exclusively pursuant to this Article
8. The parties further agree that the provisions of Sections 434 through
453 German Civil Code relating to defects in quality or in title shall
not apply to any representation, warranty or guarantee contained in this
Agreement.
II
CLOSING
ARTICLE 9
ACTIONS TO BE TAKEN AT CLOSING
9.1. Unless one or more of such actions shall be waived in writing by the
Purchaser in his sole discretion (or by mutual agreement of Purchaser and
Sellers as to Sections 9.1.3, 9.1.7 and 9.1.8), the parties shall on and
(unless otherwise expressly agreed) effective as of the Closing Date take
or cause the following actions to be taken:
9.1.1. The Company will have finally and completely disposed of any
assets except the Acquired Assets and will have settled,
transferred to a third party debtor or in any other way disposed
of any liabilities except the Assumed Liabilities.
9.1.2. Intentionally left blank.
9.1.3. Sellers, Brooks and the Purchaser shall sign an Escrow Agreement.
9.1.4. Intentionally left blank
9.1.5. Intentionally left blank
9.1.6. Effective the Closing Date, Seller I shall resign as managing
director of the Company and shall validly and completely waive in
writing any and all rights resulting from or in connection with
his previous employment with the Company.
9.1.7. Effective the Closing Date, Seller II and Company shall sign an
employment contract.
9.1.8. Effective the Closing Date, the Company shall amend the employment
contract with Mr. Gerald Dittrich and the Prokura power granted to
him shall be revoked.
9.1.9. The Company shall be granted title in, or royalty free use of, the
trademarks and tradenames in the form as attached hereto in ANNEX
9.1.9.
9.1.10. The Company and Hermos GmbH shall sign transitory services
agreement.
9.2. Intentionally left blank.
ARTICLE 10
NON-COMPETITION
10.1. Each of the Sellers shall for a period of two years from the Closing Date
refrain from any activities which directly or indirectly would compete
with the present business activities of the Company (including but not
limited to the solicitation of Company's employees), or which would
directly or indirectly cause any such competition. In particular, none of
the Sellers will establish, acquire or become a shareholder or partner in
an enterprise, or render advice to an enterprise which directly or
indirectly competes with the present business activities of the Company.
Notwithstanding the foregoing, nothing shall prohibit Sellers from owning
not more than two percent of the outstanding equity securities of any
entity which is listed on a national stock exchange or actively traded in
the over-the-counter market.
10.2. In each case of any breach by any of the Sellers of this non-competition
clause as contained in Article 10.1 the respective Seller shall pay to
the Purchaser a penalty of US $ 100.000,--. In case such breach of the
non-competition clause is being continued, the respective Seller shall
pay further penalties of US $ 50.000,-- per month of continued violation.
The Purchaser's right to demand compensation of any further damages and
to demand that the Seller ceases to continue its violation of the
non-competition clause, shall remain unaffected.
ARTICLE 11
MERGER CONTROL
11.1. The execution of the transaction has been unconditionally released by
order of the Federal Cartel Office in accordance with Section 40 para. 2
GWB
ARTICLE 12
FURTHER CONDITIONS TO BE MET AT CLOSING
12.1. The Purchaser's right to execute this Agreement in spite of any of the
actions listed under Article 9 not being fulfilled, and to demand full
performance or compensation of damages in accordance with Section 8 in
case one or more of the guarantees of Sellers being untrue or incomplete,
shall remain unaffected. The Sellers' right to execute this Agreement in
spite of any of the actions listed under Articles 9.1.3, 9.1.7 or 9.1.8
not being fulfilled, and to demand full performance or compensation of
damages in accordance with Section 8 in case one or more of the
guarantees of Purchaser and/or Brooks being untrue or incomplete, shall
remain unaffected.
12.2. Intentionally left blank .
12.3. At Closing, the Sellers shall in particular
(i) submit to Purchaser signed acknowledgements referred to in
Section 3.2.1;
(ii) submit to Purchaser signed versions of the documents as
referred to in Sections 3.2.5, 9.1.6, 9.1.7, 9.1.8, 9.1.9,
9.1.10.
(iii) hold a receipt to confirm the proper payment of that part
of the Purchase Price that is due as of Closing Date.
12.4. At the Closing, the Purchaser and Brooks shall in particular
(i) submit to Sellers a certificate signed by an officer of
Brooks evidencing the proper issuance of the Purchase
Shares to be issued at Closing;
(ii) submit to Sellers proper evidence of full payment of the
Purchase Price that is due as of Closing Date;
(iii) submit to Sellers a signed version of the documents to
which reference is made in Articles 3.2.5 and 13.1.1, if
applicable, as well as of the approval of the Board of
Directors of Brooks of the transaction contemplated hereby.
III
GENERAL PROVISIONS
ARTICLE 13
GENERAL PROVISIONS
13.1. Brooks shall take the following actions in respect of the listing and
registration of the Brooks Common Stock:
13.1.1. On or immediately after its issuance, Brooks shall at its sole
expense list the Purchase Shares on the Nasdaq National Market and
to take all steps necessary to accomplish the same.
13.1.2. (a) On or before 40 days after the Closing Date, Brooks shall
file with the SEC, a registration statement on Form S-3 (or any
successor short form registration involving a similar amount of
disclosure; or if then ineligible to use any such form, then any
other available form of registration statement) (the "Registration
Statement") for resale of the Purchase Shares to be made on a
continuous basis pursuant to Rule 415 of the Securities Act. To
the extent permitted by the SEC, Brooks will include in the
Registration Statement the Residual Stock, the maximum possible
number of Bonus Shares that can be issued and shares of Brooks
Common Stock required to be delivered into an escrow account
pursuant to Sections 3.2.5 and 3.2.6 of the Agreement. Brooks
shall not be required to include in the Registration Statement any
shares of Brooks Common Stock in excess of the Residual Stock if
the Registration Statement is effective at the time it is finally
determined pursuant to Section 3.3 that Purchaser shall pay
Sellers such additional shares of Brooks Common Stock. Brooks
shall use its commercially reasonable efforts (including, without
limitation,
consultation with legal counsel retained by Sellers at Sellers'
expense) to cause such Registration Statement to become effective
(subject to review of such Registration Statement by the SEC) as
soon as possible thereafter, and remain continuously effective
until the earlier of: (i) two years after the effective date of
the Registration Statement; or (ii) such time as all of the
Purchase Shares may be sold pursuant to Rule 144 promulgated under
the Securities Act on a single day. Brooks may, upon written
notice to the selling shareholders listed therein, from time to
time suspend use of the Registration Statement for a reasonable
period (not to exceed thirty (30) consecutive days or an aggregate
of ninety (90) days within any one year period) if disclosure of
which at that point in time in its reasonable judgment would have
a material adverse effect on Brooks and its subsidiaries taken as
a whole.
(b) The Sellers agree to use a broker acceptable to Brooks, in its
reasonable discretion, in connection with sales of the Purchase
Shares under the Registration Statement.
(c) Brooks shall pay all expenses of registration for the Purchase
Shares pursuant to Section 13.1.2(a) above and the costs of the
clearing of the share certificates, except brokerage commissions,
legal expenses and such other expenses as may be required by law
to be paid by the Sellers which shall be paid by the Sellers.
(d) To the extent permitted by law, Brooks shall indemnify and hold
harmless each of the Sellers, against any losses, claims, damages
or liabilities, joint or several, to which either of them may
become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (including reasonable
attorneys' fees), arise out of or are based upon any untrue or
alleged untrue statement or any material fact contained or
expressly incorporated by reference in any such Registration
Statement, including any preliminary prospectus or final
prospectus contained therein or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and to reimburse each of the Sellers for any legal or
other expenses reasonably incurred by either of them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided however, that the indemnity
agreement contained in this Section 13.1.2 shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability or action for a Seller if such settlement is effected
without the consent of Brooks (which consent shall not be
unreasonably withheld) nor shall Brooks be liable in any such case
for any such loss, claim, damage, liability or action to the
extent, but only to the extent, that it arises out of or is based
upon an untrue statement or alleged untrue statement or omission
or alleged omission made in connection with such Registration
Statement, preliminary prospectus, final prospectus or amendment
or supplement thereto in reliance upon and in conformity with
written information furnished expressly for use in connection with
such registration by such Sellers.
(e) To the extent permitted by law, each Sellers will indemnify and
hold harmless Brooks, its directors, its officers who have signed
such Registration Statement and each person, if any, who controls
Brooks within the meaning of the Securities Act against any
losses, claims, damages or liabilities to which Brooks or any such
director, officer or controlling person may become subject, under
the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (including reasonable attorneys' fees)
arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained or expressly incorporated
by reference in such Registration Statement, including any
preliminary prospectus or final prospectus contained therein or
any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statement therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such
Registration Statement, preliminary prospectus, final prospectus
or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished by such Seller
expressly for use in connection with such registration; and such
Seller will reimburse any legal or other expenses reasonably
incurred by Brooks or any such director, officer and controlling
person in connection with investigating or defending any such
loss, claim, damage, liability or action. It is agreed that the
indemnity agreement contained in this Section
13.1.2 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is
effected without the consent of the indemnifying party (which
consent shall not be unreasonably withheld). This Section
13.1.2(e) shall be independent of and unaffected by Article 8.
(f) Promptly after receipt by a party indemnified under this Section
13.1.2 of notice of the commencement of any action, if such
indemnified party is one of the Seller, such Seller will, or if
such indemnified party is Brooks or any director, officer or
controlling person of Brooks, Brooks will, if a claim in respect
thereof is to be made against any indemnifying party under this
Section 13.1.2, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party
desires, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; PROVIDED HOWEVER, that if the
defendants in any such action include both the indemnified party
and the indemnifying party and, under applicable standards of
professional conduct, a conflict on any significant issue between
the positions of the indemnified party and the indemnifying party
exists, the indemnified party or parties shall have the right to
select one separate law firm, at the indemnifying party's or
parties' expense, to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such
indemnified party or parties. The failure to notify any
indemnifying party promptly of the commencement of any such
action, shall not relieve such indemnifying party of any liability
to the indemnified party under this Section 13.1.2, except to the
extent that such indemnifying party is actually prejudiced
thereby.
(g) After the effective date of the Registration Statement and the
delivery of representation letter substantially in the form of
ANNEX 13.1.2(G) Brooks shall, at its expense, use commercially
reasonable efforts to remove the Registration Legend (as defined
in Annex 3.2.1) from each certificate representing Purchase Shares
that have been registered and to remove the legend according to
Section 1.4 (a) - (c) of Annex 3.2.1 on the certificates
representing the Restricted Shares (as defined in Annex 3.2.1)
from each such certificate after the date the respective transfer
restriction shall have expired, and to deliver promptly (but in no
event later than within five business days) (i) after the delivery
of the representation letter (or the
return of the original share certificates, whichever occurs
later), (ii) respectively after the lapse of the transfer
restrictions (or the return of the original share certificates,
whichever occurs later), one or more certificates without the
removed legends to the respective Seller or person(s) designated
by the respective Seller.
13.2. Any Brooks Common Stock payable hereunder shall not be issued by Brooks
prior to the date at which these shares are to be paid to Sellers or into
escrow in accordance with the provisions of this Agreement. In case any
of the share certificates are incorrect or incomplete, Brooks will
immediately correct respectively complete such certificates and, if
necessary, re-issue in exchange for the original certificates correct and
complete certificates at Brooks sole cost and expense.
13.3. Except as otherwise stated in this Agreement, all legal and other costs,
expenses and taxes incurred in connection with the negotiation and
conclusion of this Agreement and of the transactions contemplated hereby
shall be paid by the party incurring such expenses (i.e. Purchaser in the
case of costs, expenses and taxes incurred by Purchaser or Brooks, and 83
% by Seller I and 17 % by Seller II in the case of costs, expenses and
taxes incurred by either of the Sellers or the Company), except that
notarial fees, if any, for the notarisation of this Agreement and its
execution shall be borne by Purchaser to an aggregate maximum of US
$100.000, and by the Sellers proportionally (i.e. 83 : 17) for notarial
fees in excess of US $100.000, and except that Purchaser shall pay the
fees payable to the Federal Cartel Authority.
13.4. The Annexes to this Agreement shall be construed as integral parts of
this Agreement to the same extent as if they were set forth verbatim
herein; provided, however, that in the event of any conflict between any
such Annex and this Agreement the Agreement shall control.
13.5. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed to have been given or
made if in writing and delivered personally or by courier to the other
party at the following addresses:
a) if to Sellers:
to the addresses stated on page 2 of this Agreement
With copies to:
CMS Hasche Sigle
Attn.: Stefan-Ulrich Muller
Brienner Straae 11/V
80333 Munich
b) if to Purchaser:
to the address stated on page 2 of this Agreement
Attn.: Managing Director
With copies to:
Haver & Mailander
Attn.: Dr. Klaus-A. Gerstenmaier
Lenzhalde 83
70192 Stuttgart
c) if to Brooks:
to the address stated on page 2 of this Agreement
Attn.: Ellen Richstone, CFO
With copies to:
Haver & Mailander
Attn.: Dr. Klaus-A. Gerstenmaier
Lenzhalde 83
70192 Stuttgart
or at such other addresses as any of the parties hereto shall have
specified in writing to the other party.
13.6. If any provision of this Agreement shall prove to be void, voidable or
otherwise unenforceable, this shall not affect the remaining provisions
of this Agreement which shall continue to be binding and enforceable upon
the parties in accordance with its terms; the parties in such case will
replace with retroactive effect the void, voidable or unenforceable
provision by a valid and practicable provision covering as close as
possible the economic purpose of the void, voidable or unenforceable
provision. The same shall apply mutatis mutandis with respect to
omissions in this Agreement.
13.7. Subject to the parties' obligations under applicable mandatory laws, no
disclosure of the terms of this Agreement and all transactions relating
thereto shall be made by
either party without the prior written consent of the other party, and
each party shall furnish to the other advance copies of any releases
which it proposes to make concerning the transactions contemplated
herein.
The parties hereto shall agree on a joint wording of a press release
relating to the transactions contemplated herein.
13.8. This Agreement and its execution shall be governed, construed and
enforced in accordance with the laws of the Federal Republic of Germany
except to the extent that certain transactions contemplated by this
Agreement and its execution shall mandatorily or by express stipulation
be governed by any law other than that of the Federal Republic of
Germany. Section 442 BGB (Civil Code) shall be excluded.
13.9. Any dispute, controversy or claim arising out of or in connection with
this Agreement or the breach, termination or validity thereof shall be
settled by arbitration in accordance with the Rules of the Deutsche
Institution fur Schiedsgerichtsbarkeit (DIS).
The arbitral tribunal shall be composed of three arbitrators. The place
of arbitration shall be Munich. The language to be used in arbitral
proceedings shall be English.
Auf das Vorlesen der Anlagen 3.3.1 (B), 4.14 (A), 4.17 und 4.21 (b) wird
verzichtet; diese Anlagen wurden den Beteiligten zur Kenntnisnahme vorgelegt und
von ihnen auf jeder Seite unterschrieben. Alle ubrigen Anlagen zu dieser Urkunde
wurden mit vorgelesen.