Exhibit 2.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and is
effective this 28th day of January, 1999, between Photronics Colorado, Inc. a
Colorado corporation ("Seller") and Infinite Graphics Incorporated, a Minnesota
corporation ("Buyer"). Photronics, Inc. ("Parent"), the parent of Seller, does
hereby enter into this Agreement for those limited purposes as identified within
the Agreement.
WHEREAS, Seller is willing to sell transfer, convey and assign and
Buyer is willing to purchase and assume, substantially all of the equipment,
leasehold assets, inventory, intangible assets and other operating or business
assets of Seller related to its large area mask business as hereafter described
upon the terms and conditions hereinafter set forth;
WHEREAS, Buyer desires to make employment offers to certain employees
of Seller;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
ARTICLE I. PURCHASE AND CONSIDERATION
Section 1.1 Sale of Assets. Subject to the terms and conditions of this
Agreement, at the Closing (as defined in Section 2.1 below), Seller shall sell,
and Buyer shall purchase, all of but no more than the assets and properties
specifically set forth (collectively, the "Purchased Assets"), which include the
following:
a) The manufacturing machinery and equipment and computer
hardware located at the Seller's premises at ▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ (the "Premises"), including but not limited to the items
listed on Schedule 1.1 hereto (the "Equipment");
b) The inventory of Seller related to large area masks as
determined by a physical inventory (the "Inventory");
c) All of Seller's right, title and interest to all records,
files, papers, literature, graphic materials, sales
literature, sales aids, customer files, pricing materials, and
information relating solely to Seller's large area mask
business (the "Records");
d) All of Seller's right, title and interest to all customer
purchase orders, work in progress, spare parts, customer
relationships, all operating and other software (proprietary
or third party) used in the operation of Seller's
manufacturing and distribution of large area masks at the
Premises, and intellectual property rights, intangible assets,
vendor warranties and other operating or business assets of
Seller relating primarily to its large area mask business;
(e) All of Seller's right, title and interest to all intellectual
property rights associated with the Texas Instrument laser
imager; and
(f) All of Seller's right, title and interest in software
purchased by Seller from Cognitive Vision, including all
claims for breach of contract, warranty, etc. that Seller has
against Cognitive Vision.
Section 1.2 Assumption of Liabilities
(a) Warranty Liability. Following the Closing Date, Buyer shall
repair or replace defective photomasks shipped by Seller prior
to the Closing Date in accordance with Seller's past warranty
policies. Such warranty services shall be performed at Buyer's
expense unless the total cost of such warrant service exceeds
$25,000, in which case, such excess expenses shall be billed
to Seller.
(b) Building Lease. Effective as of the Closing, Buyer shall
assume all of Seller's obligations under the Master Lease,
attached as Schedule 1.2 (b), for the premises at ▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and obtain a release
of Seller from any further liability thereunder.
(c) Sublease. For a period of up to six (6) months, Buyer shall
permit Seller's employees who currently occupy the facilities
and provide sales and front-end services to affiliates of
Seller to continue to occupy the facility under the terms of a
sublease as set forth in Schedule 1.2(c). Buyer agrees that
such occupancy will be at no cost to Seller except for
telephone charges incurred by such employees.
(d) No Other Assumption of Liability. Except as expressly provided
in this Agreement, Buyer is not assuming any liabilities or
obligation of Seller.
Section 1.3 Excluded Assets. Notwithstanding anything contained in
Section 1.1, Seller is not selling, and Buyer is not purchasing, any of the
following, all of which shall be retained by Seller:
(a) Seller's name or logo and any other trademarks, except that
Buyer can use Seller's name and logo for the limited use of
indicating that Buyer has acquired the facilities at ▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇;
(b) cash, receivables, security deposits and insurance;
(c) all of the equipment listed on Schedule 1.3 hereto.
Section 1.4 Consideration
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(a) In consideration for the Purchased Assets and the other
agreements set forth herein, Buyer will pay to Seller the
following amounts (collectively, the "Purchase Price");
(i) Three Hundred Seventy Five Thousand Dollars
($375,000);
(ii) 50% of all net invoices of bump masks shipped to or
for Seller for a period of 36 months from the
Closing. It is understood for purposes of this
agreement that quartz bump masks, though not sold
today, may be required by the Seller's customers in
the future. Should this requirement occur, the Buyer
will honor this agreement with respect to such masks
provided the material cost as a percentage of net
sales is comparable to soda lime bump masks. If such
is not the case, the Buyer and Seller will agree to
adjust the percentage applied to the purchase price
to a mutually agreeable rate;
(iii) 10% of the net invoice amount received, after all
credits and discounts, for hard surface large area
mask business (excluding bump mask business) invoiced
to the existing Seller customers listed in Schedule
1.4 during the 36 months following the Closing, and;
(iv) 10% of the net invoice amount received, after all
credits and discounts, up to a maximum of $90,000,
for all large area masks invoiced to 3M during the 36
months following the Closing.
(b) The Purchase Price shall not exceed $2,000,000 (the "Maximum
Purchase Price") and the payments under section
1.4(a)(ii)-(iv) shall cease once the total payments made to
Seller under section 1.4 total the Maximum Purchase Price.
(c) The Purchase Price will be paid as follows:
(i) Buyer will deliver at closing the $375,000 payable
under 1.4(a)(i).
(ii) Buyer will credit invoices to Seller for bump masks
shipped to or for Seller by 50% for a period of 36
months from the Closing or until the Maximum Purchase
Price is reached.
(iii) Buyer will pay Seller for those amounts due under
1.4(a)(iii) within 30 days after the end of Buyer's
fiscal quarter for 36 months following the Closing or
until the Maximum Purchase Price is reached. The
first payment is due May 31, 1999.
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(iv) Buyer will pay Seller for those amounts due under
1.4(a)(iv) within 30 days after the end of Buyer's
fiscal quarter for 36 months following the closing,
up to a maximum of $7,500 per quarter, with any
excess shifted to the following quarter, or until the
Maximum Purchase Price is reached. The first payment
is due May 31, 1999.
(d) If Buyer does not deliver bump masks ordered that are within
Buyer's agreed upon technical capability and within the agreed
upon volume and delivery times, Buyer will pay Seller 50% of
the price of undelivered masks, up to the Maximum Purchase
Price. Technical capability with respect to undelivered masks
is defined as the highest technical capability and tightest
specifications achieved in production of bump masks as of
January 28, 1999 at Seller's large area mask facility. The
volume of bump mask orders that Buyer should be able to
achieve will be no less than $200,000 per quarter in year 1,
$300,000 per quarter in year 2 and $400,000 per quarter in
year 3, assuming business is ordered relatively even over the
course of each quarter.
(e) Buyer's quarterly payments are limited to $150,000. If the
obligations exceed $150,000 in a quarter, the excess is
shifted to the following quarter until extinguished.
Section 1.5 Taxes.
(a) Payment of Sales and Related Taxes. Buyer shall pay all sales,
use, registration and related taxes, if any, due as a result
of the transactions contemplated by this Agreement.
Section 1.6 Security Interest. Seller will have a security interest in:
(1) The Purchased Assets;
(2) All receivables of Buyer related to the Purchased
Assets;
(3) The payment amounts to be received by Buyer under its
sales agreement with Global Maintech Corporation
dated February 27, 1998; and
(4) Increases, replacements, substitutions and proceeds
of any of the foregoing.
This security interest shall not be subject to any prior security
interests other than Riverside Bank ("Riverside") and Spectrum Commercial
Services ("Spectrum") and shall be subordinate to such prior security interests.
Buyer shall execute any financing statements required to perfect this security
interest. Buyer shall insure and maintain the Purchased Assets until this
security interest is discharged. This security interest shall be
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released by Seller if Buyer has paid all amounts due or that may become due
under Section 1.4 and satisfied its obligations under Section 1.2. Seller will
subordinate to a commercial lender that replaces Riverside or Spectrum.
Section 1.7 Retained Inventory. With respect to the Inventory, the
Seller will retain $55,473 of the inventory purchased by the Seller from Ulcoat
to service 3M. The balance of the inventory will be the property of the Buyer
upon closing. The Buyer will purchase such Seller retained inventory from Seller
as required to restock operations, and will not purchase equivalent inventory
from another source until such time as all such inventory has been purchased
from Seller. The Seller is not required to maintain such inventory for Buyer,
and may dispose of it in any way it deems appropriate.
ARTICLE II. CLOSING
Section 2.1 Closing. The Closing of the transaction contemplated by
this Agreement will take place upon execution of this Agreement at Seller's
offices or on such other date or at such other location as the parties agree
(the "Closing"). The date of the Closing is sometimes referred to herein as the
"Closing Date."
Section 2.2 Delivery of the Purchased Assets. At the Closing, Seller
shall deliver to Buyer title to the Purchased Assets.
Section 2.3 Payment of the Purchase Price. At the Closing, Buyer shall
pay to Seller by wire transfer the portion of the Purchase Price described in
Section 1.4(b)(i) above.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and Warrants to the Buyer as follows:
Section 3.1 Organization and Authority. Seller is duly incorporated and
organized and is validly existing as a corporation under the laws of the State
of Colorado. Seller has the corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
Section 3.2 Due Authorization. This Agreement has been duly authorized
by all necessary corporate and other action, executed and delivered on behalf of
Seller and constitutes the legal, valid and binding obligation of Seller,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditor's rights generally, and except with respect to judicial
limitations on equitable remedies.
Section 3.3 Ownership of Assets. Seller owns each of the Purchased
Assets free and clear of all liens, encumbrances, leases, licenses and adverse
third-party rights and claims and, upon transfer of such Purchased Assets to
Buyer in accordance with this
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Agreement, Buyer will obtain good title to such Purchased Assets, free and clear
of any adverse title or claims.
Section 3.4 No Violation or Breach. The performance of this Agreement
is not in violation of any law, statute, local ordinance, state or federal
regulations, court order or administrative order or ruling, or of any Seller
loan document's conditions or restrictions, in effect for financing, whether
secured or unsecured.
Section 3.5 No Broker. No broker, finder or other third party other
than ▇▇▇▇▇▇▇▇▇ & Company has any right to a commission or other fee as the
result of action by or on behalf of Seller or in connection with this Agreement.
Section 3.6 Lease. A true and correct copy of the Master Lease to ▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ is attached as Schedule 1.2(b).
ARTICLE IV. DISCLAIMER OF WARRANTY
Section 4.1 "AS IS". BUYER IS PURCHASING THE PURCHASED ASSETS "AS IS",
WITH ALL DEFECTS ENTIRELY AT ITS OWN RISK AS TO THEIR QUALITY AND PERFORMANCE IN
RELIANCE SOLELY UPON ITS OWN INSPECTION OF THE PURCHASED ASSETS AND WITHOUT
RELIANCE UPON ANY REPRESENTATION (EXCEPT AS PROVIDED IN SECTION 3.3 ABOVE) OR
DESCRIPTION BY SELLER CONCERNING THE PURCHASED ASSETS. EXCEPT AS PROVIDED IN
SECTION 3.3 ABOVE, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO THE PURCHASED ASSETS AND SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
SELLER DOES NOT ASSUME ANY LIABILITY, AND MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY INFRINGEMENT OF PATENTS OR
OTHER INTELLECTUAL RIGHTS OF THIRD PARTIES ARISING FROM, IN CONNECTION WITH, OR
AS A RESULT OF BUYER'S USE OF THE PURCHASED ASSETS.
Section 4.2 NO LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR
DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFITS) WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER LEGAL THEORY, ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE
PURCHASED ASSETS.
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ARTICLE V. REPRESENTATION AND WARRANTIES OF BUYER
Buyer represents and warrants to the Seller as follows:
Section 5.1 Organization and Authority. Buyer is duly incorporated and
organized and is validly existing as a corporation under the laws of the State
of Minnesota. Buyer has the corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
Section 5.2 Due Authorization. This Agreement has been duly authorized
by all necessary corporate and other action, executed and delivered on behalf of
Buyer and constitutes the legal, valid and binding obligation of Buyer,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditor's rights generally, and except with respect to judicial
limitations on equitable remedies.
Section 5.3 No Violation or Breach. The performance of this Agreement
is not in violation of any law, statute, local ordinance, state or federal
regulations, court order or administrative order or ruling, or of any Buyer loan
document's conditions or restrictions, in effect for financing, whether secured
or unsecured.
ARTICLE VI. SELLER EMPLOYEES
Section 6.1 Hiring of Seller Employees. Prior to the Closing Date,
Buyer will make offers of employment to each of the employees of Seller listed
on Schedule 6.1 hereto (the "▇▇▇ Employees"). The ▇▇▇ Employees who have
accepted such employment offers from Buyer are referred to herein individually
as a "Transferred ▇▇▇ Employee" and collectively as the "Transferred ▇▇▇
Employees". Seller shall remain responsible for all employment matters between
the Seller and its employees prior to Closing.
Section 6.2 Non-Hire. Seller agrees that for a period of one (1) year
following the Closing, Seller shall not employ or solicit the employment of any
Transferred ▇▇▇ Employee.
ARTICLE VII. OTHER AGREEMENTS
Section 7.1 Conduct of Business Prior to Closing.
Conduct of Business. From the date of this Agreement until the Closing
Date, Seller will continue to operate its business in the ordinary course and
use its reasonable best efforts to preserve intact the Purchased Assets and
Seller's relationship with third parties.
Section 7.2 Conduct of Business Following Closing.
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(a) Seller will notify customers affected that Buyer has purchased
the business and purchase orders of Photronics, Colorado.
Buyer will ▇▇▇▇ for all masks shipped subsequent to closing
excluding bump mask shipments on behalf of Seller. With
respect to bump masks, Buyer will ship such masks ordered by
Seller to Seller's customer and fax a copy of the packing list
to Seller on a daily basis for invoicing. Seller will pay
Buyer as previously discussed for such bump masks within 30
days of notification of shipment. For six months following the
closing, Seller will assist Buyer with collection of Buyer's
invoices should delays occur resulting from the change of
ownership.
(b) Seller will cooperate in the continuation of all services to
the Premises, including utilities, phone service, faxes etc.
until such time as Buyer can arrange for the same services.
(c) Seller will forward within two hours during Milpitas business
hours Monday through Friday all communications directed to the
Seller regarding the production of large area masks for thirty
days following the Closing, and will reasonably cooperate in
the same thereafter as required.
(d) Seller will cooperate with Buyer in Buyer's pursuing all
assigned rights from Seller to Buyer, including any claim
against Cognitive Vision, including any and all reasonable
supply of information that Buyer may need in litigation
against any third party.
(e) Seller, for 6 months following the Closing, will measure Texas
Instrument laser writer calibration plates weekly, with a two
day turnaround of such service, at no cost to Buyer. The Buyer
will assume freight costs. Seller will provide a quote to
continue to provide these services thereafter.
ARTICLE VIII. BUMP MASKS
The parties acknowledge that Seller currently provides bump masks to
integrated circuit manufacturers. Buyer agrees that after the Closing, it shall
sell bump masks to Seller at a price equal to Seller's current prices and upon
other terms and conditions not less favorable than those currently extended by
Seller to its customers. Such terms and conditions include order lead time.
During the thirty six months following Closing, Seller and/or its Parent, will
purchase substantially all such bump masks from Buyer so long as Buyer remains
competitive on price, quality, and delivery unless Seller's customers prohibit
Seller from subcontracting such bump mask production to Buyer. The parties agree
to meet quarterly to discuss the progress of sales under this Article as well as
general matters relating to this Agreement and Seller's consideration of
alternative sources of supply. Buyer is free to market bump masks to any
customer including customers of Seller. Nothing contained herein shall be deemed
a guarantee by Seller of any particular volume of bump mask orders.
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ARTICLE IX. CONFIDENTIALITY
Seller and Buyer each agrees that it will not disclose any of the
terms, conditions or other facts relating to this Agreement and the transactions
contemplated hereby without the prior written consent of the other party.
Notwithstanding the foregoing, either party may make such public disclosure as
is required by law in the opinion of such party's legal counsel; provided,
however, that the disclosing party will provide reasonable notice to the other
party to enable such other parry to seek a protective order or confidential
treatment or to waive compliance with the obligations in this Article.
ARTICLE X. INDEMNIFICATION
Section 10.1 Agreement to Indemnify by Seller. Subject to the terms and
conditions of Section 10.3, Seller agrees to indemnify and save Buyer, its
affiliates, shareholders, officers and directors (individually, a "Buyer
Indemnitee") harmless from or against, for and in respect of any and all
damages, losses, obligations, liabilities, claims, actions or causes of action,
encumbrances, costs, and expenses suffered (including without limitation
reasonable attorney's fees), sustained, incurred or required to be paid by any
Buyer Indemnitee as a result of the untruth, inaccuracy, breach or
non-fulfillment of any representation, warranty, covenant or agreement of Seller
contained in or made pursuant to this Agreement, including any exhibit or
Schedule hereto or certificate delivered hereunder, or as a result of the
actions or omissions of Seller prior to the Closing.
Seller indemnifies and will hold harmless Buyer from any claim made
against Buyer: a) by reason of Buyer's use or occupancy of the Premises for
actions or inactions taken with regard to the Premises prior to the Closing; and
b) by reason of Seller's operation of its business prior to Closing.
Section 10.2 Agreement to Indemnify by Buyer. Subject to the terms and
conditions of Section 10.3, Buyer agrees to indemnify and save Seller, its
affiliates, shareholders, officers and directors (individually, a "Seller
Indemnitee") harmless from or against, for and in respect of any and all
damages, losses, obligations, liabilities, claims, actions or causes of action,
encumbrances, costs, and expenses suffered (including without limitation
reasonable attorney's fees), sustained, incurred or required to be paid by any
Seller Indemnitee as a result of the untruth, inaccuracy, breach or
non-fulfillment of any representation, warranty, covenant or agreement of Buyer
contained in or made pursuant to this Agreement, including any exhibit or
Schedule hereto or certificate delivered hereunder, or as a result of the
actions or omissions of Buyer from and after the Closing. Buyer will indemnify
and will hold harmless Seller from any claim made against Buyer: a) by reason of
Seller's use or occupancy of the Premises for actions or inactions taken with
regard to the Premises after the Closing; and b) by reason of Buyer's operation
of its business after Closing.
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Section 10.3 Procedures Regarding Indemnity Parry Claims. The
procedures to be followed by Seller and Buyer with respect to indemnification
claims shall be as follows:
(a) The indemnified persons shall give prompt written notice to
the indemnifying persons of any damage, loss or assertion of
liability which might give rise to a claim by the indemnified
persons against the indemnifying persons based on the
indemnity agreement herein.
(b) In the event of any action, suit or proceeding is brought
against the indemnified persons, with respect to which the
indemnifying persons may have liability under the indemnity
agreement contained herein, the action, suit or proceeding
shall be defended (including all proceedings on appeal or for
review which counsel for the defendant shall deem appropriate)
by the indemnifying persons. The indemnified persons shall
have the right to employ its or their own counsel (in addition
to any counsel retained by the indemnifying persons) in any
such case and the fees and expenses of such counsel shall be
at the expense of the indemnifying person. The indemnified
persons shall be kept fully informed of such action, suit or
proceeding at all stages thereto whether or not they are so
represented. The indemnifying persons shall make available to
the indemnified persons and their attorneys and accountants
all books and records of the indemnifying persons relating to
such proceedings or litigation and the parties hereto agree to
render to each other such assistance (at the indemnifying
person's expense) as they may reasonable require of each other
in order to ensure the proper adequate defense of any such
action, suit or proceeding.
(c) The indemnifying persons shall not make any settlement of any
claims without the written consent of indemnified persons.
Section 10.4 Third Parties. The benefits of this Article X are intended
only for the parties identified herein and no third party (other than a
permitted assignee of this Agreement) shall be entitled to rely on this Article
X.
ARTICLE XI. GENERAL
Section 11.1 Survival of Representations and Warranties. The
representations and warranties set forth in this Agreement shall survive the
consummation of the transactions contemplated by this Agreement.
Section 11.2 Integrated Agreement; Amendments
(a) The recitals and Schedules to this Agreement constitute an
integral part of this Agreement and are incorporated herein by
this reference. This Agreement and the Schedules constitute
the entire agreement among the
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parties with respect to the subject matter hereof and
supersede all prior oral and written agreements and
understandings, and all contemporaneous alleged oral
agreements or understandings between the parties with respect
to the transactions contemplated by this Agreement.
(b) This Agreement may be modified only by a written instrument
duly executed by each party hereto.
Section 11.3 Interpretation. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 11.4 Waiver. No breach of any covenant, agreement, warranty or
representation shall be deemed waived unless expressly waived in writing by the
party which is entitled to assert such breach. No waiver of any right hereunder
shall operate as a waiver of any other right or of the same or a similar right
on another occasion.
Section 11.5 Notices. All notices and other communications between the
parties shall be in writing and shall be deemed to have been duly given (a) on
the same day when delivered personally or by courier to the party to whom
addressed or when sent by facsimile, confirmation received, and (b) three (3)
business days after being mailed by registered or certified mail, return receipt
requested, prepaid and addressed, at the following addresses, or at such other
addresses as the parties may designate by written notice:
If to Seller, to:
Photronics Colorado, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
With a copy to:
Photronics, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇)-▇▇▇-▇▇▇▇
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If to Buyer, to;
Infinite Graphics Incorporated
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ Plant ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Section 11.6 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original Agreement, but
all of which, taken together, shall constitute one Agreement.
Section 11.7 No Transfer or Assignment. This Agreement and the rights
and obligations set forth herein may not be transferred or assigned by operation
of law or otherwise without the consent of the other party, which may be
withheld at their sole discretion. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective legal representatives,
successors and permitted assigns.
Section 11.8 Expenses. Each party to this Agreement will pay all costs
and expenses incurred by it in negotiating and preparing this Agreement and, in
closing and carrying out the transactions contemplated hereby.
Section 11.9 Other Remedies. Any and all remedies herein expressly
conferred upon a party will be deemed cumulative with and not exclusive of any
other remedy conferred hereby or by law or equity on such party; and the
exercise of any one remedy will not preclude the exercise of any other.
Section 11.10 Absence of Third Party Beneficiary Rights. Except as set
forth in Article X, no provision of this Agreement is intended, or will be
interpreted, to provide to or create for any third beneficiary rights or any
other rights of any kind in any client, customer, affiliate, shareholder,
employee or partner of any party hereto or any other person or entity, and all
provisions hereof will be personal solely between the parties to this Agreement.
Section 11.11 Mutual Drafting. This Agreement is the joint product of
Seller and Buyer and each provision hereof has been subject to the mutual
consultation, negotiation
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and agreement of Seller and Buyer and shall not be construed for or against
either party hereto.
Section 11.12 Severability. Should any portion or provision of this
Agreement be declared invalid or unenforceable in any jurisdiction, then such
portion or provision shall be deemed to be severable from this Agreement as to
such jurisdiction (but, to the extent permitted by law, not elsewhere) and shall
not affect the remainder hereof.
Section 11.13 Governing Law. Any questions, claims, disputes or
litigation arising out of this Agreement will be governed by and construed in
accordance with the laws of the State of Minnesota.
Section 11.14 Post Closing Cooperation. The parties will agree to
cooperate with one another in the filing of tax returns and any and all
necessary filings with other agencies of government after the Closing.
IN WITNESS WHEREOF, this Agreement is hereby executed by a duly
authorized representative of each party as of the date first written above.
INFINITE GRAPHICS INCORPORATED PHOTRONICS COLORADO, INC.
By: /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer Title: Executive Vice President
Photronics, Inc. hereby agrees to undertake those obligations
specifically set for above as obligations of Photronics, Inc., and does hereby
guarantee the obligations of Photronics Colorado, Inc. under this Agreement.
PHOTRONICS, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
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