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Exhibit 2
THIS PROMISSORY NOTE MAY NOT BE (I) SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE
DISPOSED OF OR (II) SUBJECTED TO ANY LIEN, ATTACHMENT, PLEDGE, HYPOTHECATION OR
ANY JUDICIAL PROCESS OF ANY CREDITOR OF THE HOLDER OF THIS NOTE OR ANY PARTY TO
THE STOCK PURCHASE AGREEMENT (AS DEFINED BELOW) EXCEPT PURSUANT TO A VALID
WAIVER OF THE APPLICABLE PROVISIONS OF SECTION 9.10 OF SUCH AGREEMENT.
THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. NO SALE OR DISPOSITION MAY BE EFFECTED EXCEPT IN COMPLIANCE WITH
RULE 144 UNDER SAID ACT OR AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO
OR AN OPINION OF COUNSEL FOR THE HOLDER, SATISFACTORY TO THE PAYOR (AS DEFINED
BELOW), THAT SUCH REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR RECEIPT OF A
NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION.
THIS PROMISSORY NOTE IS SUBJECT TO A SUBORDINATION AGREEMENT, DATED AS OF
DECEMBER 3, 1999 AMONG BANK OF AMERICA, N.A., AS SENIOR LENDER AND THE PAYOR.
THIS PROMISSORY NOTE IS SUBORDINATED IN RIGHT AND TIME OF PAYMENT TO THE PRIOR
INDEFEASIBLE PAYMENT IN FULL IN CASH OF ALL SENIOR DEBT (AS DEFINED THEREIN),
AND ALL LIENS AND SECURITY INTERESTS SECURING THIS PROMISSORY NOTE ARE
SUBORDINATED TO LIENS AND SECURITY INTERESTS SECURING SUCH SENIOR DEBT, IN
ACCORDANCE WITH THE TERMS OF SUCH SUBORDINATION AGREEMENT AND EACH HOLDER OF
THIS PROMISSORY NOTE, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND
BY THE TERMS AND PROVISIONS OF SUCH SUBORDINATION AGREEMENT.
SUBORDINATED PROMISSORY NOTE
December 3, 1999
FOR VALUE RECEIVED, CERPROBE CORPORATION, a Delaware corporation
(together with its successors and assigns, the "PAYOR"), promises to pay to ALI
BUSHEHRI (the "AGENT") or any successor appointed pursuant to Section 10.2(e) of
the Stock Purchase Agreement (as defined below) (the "HOLDER") the principal
amount of $2,830,000 (as may be adjusted from time to time as set forth herein)
on the earlier of (i) December 3, 2002 or (ii) the third business day following
the Payor's receipt of gross proceeds equal to or in excess of $10,000,000 from
a public offering of shares of its common stock pursuant to an effective
registration statement under the Securities Act of 1933, as amended, and "firm
commitment" underwriting arrangements (such earlier date, the "MATURITY DATE"),
along with interest on the outstanding principal amount at the rate of 10% per
annum. The principal amount payable by the Payor to the Holder on the Maturity
Date and the interest thereon then due are together referred to herein as the
"MATURITY AMOUNT." The Maturity Amount constitutes a portion of the Aggregate
Share Purchase Price (capitalized terms used and not defined herein shall have
the meanings assigned to them in the Stock Purchase Agreement (the "STOCK
PURCHASE AGREEMENT") dated as of
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December 3, 1999 by and among the Payor, Oz Technologies, Inc., a California
corporation, Nasser Barabi, Iraj Barabi, Ali Bushehri, individually and as
trustee for the Ali and Nassrin Bushehri Trust, and Ahmad Barabi, individually
and as trustee for the Ahmad and Zakieh Barabi Trust) payable to the Holder on
behalf of the Non-Trust Selling Stockholders and the Trusts under the Stock
Purchase Agreement. The principal amount payable by the Payor to the Holder on
the Maturity Date pursuant to the first sentence of this paragraph is subject to
adjustment as provided in this paragraph and paragraph 1 below, and shall equal
the principal amount (the "MATURITY DATE PRINCIPAL AMOUNT") on Schedule A hereto
that (i) has been endorsed by the Holder and for which an Anniversary
Instruction, a 5.6(b) Instruction, a 5.11 Instruction, a 5.13 Instruction or a
9.11 Instruction (each as defined herein) is attached hereto and (ii)
corresponds to the Maturity Date or the date closest to the Maturity Date, as
applicable (or, if no endorsements have been made by the Holder, the amount
corresponding to December 3, 1999). The interest due on this note (this "NOTE")
on the Maturity Date shall commence on the date hereof and be calculated on the
basis of a 365-day or a 366-day year, as applicable, by reference to the
outstanding principal amount under this Note as determined on a daily basis from
Schedule A hereof (except that any portion of the original outstanding principal
amount under this Note that has been subtracted on Schedule A hereto based on a
9.11 Instruction that has been endorsed by the Agent shall be deemed, for
purposes of calculating interest under this Note, to have never been
outstanding). No portion of the Maturity Amount shall be payable by the Payor to
the Holder until the Maturity Date. The Payor may, at its option, on each of
December 3, 2000 and December 3, 2001, pay to the Holder all or any portion of
the principal and interest then outstanding under this Note to the extent that
doing so does not cause the Payor to violate any covenant in any loan, security
or subordination document to which the Payor is then a party. To the extent that
any such payment is made and constitutes a principal payment, the Payor shall
deliver a written instruction (an "Anniversary Instruction") to the Holder
instructing it to endorse a subtraction on Schedule A hereto in the amount
provided in such Anniversary Instruction, and the Holder shall endorse such
subtraction in such amount as promptly as practicable (an in no event later than
the Maturity Date) after its receipt of such Anniversary Instruction. The Holder
shall attach to this Note each Anniversary Instruction pursuant to which it
makes any endorsement to Schedule A of this Note, and no endorsement to Schedule
A of this Note made pursuant to an Anniversary Instruction shall be effective
unless a corresponding Anniversary Instruction is attached to this Note. To the
extent that all or any portion of the Maturity Date Principal Amount is not paid
by the Payor to the Holder on the Maturity Date (the portion of the Maturity
Date Principal Amount that is not paid on the Maturity Date being herein
referred to as the "UNPAID MATURITY DATE PRINCIPAL AMOUNT"), the Unpaid Maturity
Date Principal Amount shall accrue interest at the rate of 10% per annum
commencing on the Maturity Date until the date on which the Unpaid Maturity Date
Principal Amount (and all interest thereon pursuant to this sentence) has been
paid in full to the Holder, with such interest being calculated based on a
365-day or a 366-day year, as applicable, and by reference to the Unpaid
Maturity Date Principal Amount as determined on a daily basis.
1. This Note shall be held by the Holder until the Termination Date or
the Subsequent Termination Date, as applicable, as collateral to secure the
rights of the Indemnitees under the Stock Purchase Agreement. In the event that,
prior to or on the Maturity Date, the Payor instructs the Holder in writing
pursuant to Section 5.6(b) of the Stock Purchase Agreement
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to endorse an addition on Schedule A hereto in the amount of the Total Initial
Selling Period Share Shortfall (a "5.6(b) INSTRUCTION"), the Holder shall
endorse such addition on Schedule A hereto as promptly as practicable (and in no
event later than the Maturity Date) after receipt of such 5.6(b) Instruction.
The Holder shall attach to this Note each 5.6(b) Instruction pursuant to which
it makes any endorsement to Schedule A of this Note, and no endorsement to
Schedule A of this Note made pursuant to a 5.6(b) Instruction shall be effective
unless the corresponding 5.6(b) Instruction is attached to this Note. In the
event that, prior to or on the Maturity Date, the Payor instructs the Holder in
writing pursuant to Section 5.11 of the Stock Purchase Agreement to endorse an
addition or subtraction on Schedule A hereto in the amount of the Real Property
Shortfall or Real Property Surplus, as applicable (a "5.11 INSTRUCTION"), the
Holder shall endorse such addition or subtraction on Schedule A hereto as
promptly as practicable (and in no event later than the Maturity Date) after
receipt of such 5.11 Instruction. The Holder shall attach to this Note each 5.11
Instruction pursuant to which it makes any endorsement to Schedule A of this
Note, and no endorsement to Schedule A of this Note made pursuant to a 5.11
Instruction shall be effective unless the corresponding 5.11 Instruction is
attached to this Note. In the event that, prior to or on the Maturity Date, the
Payor instructs the Holder in writing pursuant to Section 5.13 of the Stock
Purchase Agreement (a "5.13 INSTRUCTION") to endorse a subtraction on Schedule A
hereto in the amount of the J.D. Edwards Payment stated in such instruction, the
Holder shall endorse such subtraction on Schedule A hereto as promptly as
practicable (and in no event later than the Maturity Date) after receipt of such
5.13 Instruction. The Holder shall attach to this Note each 5.13 Instruction
pursuant to which it makes any endorsement to Schedule A of this Note, and no
endorsement to Schedule A of this Note made pursuant to a 5.13 Instruction shall
be effective unless a corresponding 5.13 Instruction is attached to this Note.
In the event that, prior to or on the Maturity Date, the Holder receives,
pursuant to the provisions of Section 9.11 ("SECTION 9.11") of the Stock
Purchase Agreement, either (i) a written instruction or notice from the Payor,
(ii) a settlement agreement executed by the Payor and the Holder, (iii) a copy
of a court order or (iv) an arbitrator's written decision (any such instruction,
notice, settlement agreement, court order or written decision delivered to the
Holder pursuant to Section 9.11 being herein referred to as a "9.11
INSTRUCTION") instructing it to endorse a subtraction or addition on Schedule A
hereto in the amount provided in such 9.11 Instruction, the Holder shall endorse
such subtraction or addition in such amount as promptly as practicable (and in
no event later than the Maturity Date) after its receipt of such 9.11
Instruction. The Holder shall attach to this Note each 9.11 Instruction pursuant
to which it makes any endorsement to Schedule A of this Note, and no endorsement
to Schedule A of this Note made pursuant to a 9.11 Instruction shall be
effective unless the corresponding 9.11 Instruction is attached to this Note. No
amounts shall be due under this Note (and no Unpaid Maturity Date Principal
Amount shall be deemed to exist with respect to this Note) on the Maturity Date
or thereafter until the Holder shall have endorsed all the subtractions and
additions on Schedule A hereto required by the immediately preceding paragraph
and this paragraph 1 and shall have attached all the Anniversary Instructions,
5.6(b) Instructions, 5.11 Instructions, 5.13 Instructions and 9.11 Instructions
corresponding to such endorsements. If the Holder has not endorsed all the
subtractions and additions on Schedule A hereto required by the immediately
preceding paragraph and this paragraph 1 on the Maturity Date specified in the
introductory paragraph, the Maturity Date shall become, for all purposes of this
Note, the date on which the Holder has endorsed all such subtractions and
additions.
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2. All amounts then owing under this Note shall become due and payable
immediately in the event of a sale of all of substantially all of the Payor's
assets or capital stock to an unaffiliated third party or a general assignment
by the Payor for the benefit of its creditors. Any date on which any of the
preceding events occurs shall be deemed, for all purposes of this Note, the
Maturity Date. Notwithstanding the immediately preceding sentence, if the Holder
has not endorsed all the subtractions and additions on Schedule A hereto
required by the second preceding paragraph and paragraph 1 on any date on which
any of the preceding events occurs, the Maturity Date with respect to such event
shall become, for all purposes of this Note, the date on which the Holder has
endorsed all such subtractions and additions.
2a. If (i) the Payor is permitted under CRPB Investors, L.L.C.'s
constitutive documents, (ii) its doing so would not cause the Payor to violate
any covenant in any loan, security or subordination document to which the Payor
is then a party (it being understood that the Payor shall not enter into any
such document containing any such covenant after the date hereof), and (iii) the
pledge of the Payor's membership interest (the "MEMBERSHIP INTEREST") in CRPB
Investors, L.L.C. existing on the date hereof is released prior to the Maturity
Date, the Payor shall use its best efforts to pledge the Membership Interest as
security for amounts outstanding under this Note.
3. All payments of interest and principal shall be in lawful money of
the United States of America and shall be made to the Holder. All payments shall
be applied first to accrued interest, and thereafter to principal.
4. In the event of any default hereunder, Payor shall pay all
reasonable attorneys' fees and court costs incurred by Holder in enforcing and
collecting this Note.
5. Payor hereby waives demand, notice, presentment, protest and notice
of dishonor.
6. The terms of this Note shall be construed in accordance with, and
governed in all respects by, the internal laws of the State of California
(without giving effect to principles of conflicts of laws).
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7. Any term of this Note may be amended or waived with the written consent of
Payor and the Holder.
CERPROBE CORPORATION
By:
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SCHEDULE A
PRINCIPAL AMOUNT OF THE PROMISSORY NOTE
The following subtractions and additions of portions of the principal
amount of this Promissory Note have been made:
PRINCIPAL AMOUNT
FOLLOWING SUCH
PRINCIPAL AMOUNT SUBTRACTION OR
DATE MADE SUBTRACTED OR ADDED ADDITION NOTATION MADE ON BEHALF OF THE HOLDER
- ------------------------- ------------------- --------------- -------------------------------------
December 3, 1999 ----- $2,830,000 -----
NO ENDORSEMENT BY THE HOLDER OF THIS SCHEDULE A SHALL BE EFFECTIVE UNLESS THE
CORRESPONDING ANNIVERSARY INSTRUCTION, 5.6(b) INSTRUCTION, 5.11 INSTRUCTION,
5.13 INSTRUCTION OR 9.11 INSTRUCTION (EACH AS DEFINED IN THIS NOTE) IS ATTACHED
HERETO.