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ASM INTERNATIONAL N.V.
U.S.$140,000,000
EQUITY LINE FINANCING AGREEMENT
July 6, 2000
CANADIAN IMPERIAL HOLDINGS INC.
as Investor
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TABLE OF CONTENTS
Page
I. CERTAIN DEFINITIONS........................................................................................ 1
SECTION 1.1. Defined Terms.................................................................................. 1
II. PURCHASE AND SALE OF COMMON STOCK.......................................................................... 7
SECTION 2.1. Investments.................................................................................... 7
SECTION 2.2. Limitations on Investment Amounts.............................................................. 7
SECTION 2.3. Mechanics of Notification...................................................................... 8
SECTION 2.4. Closings....................................................................................... 8
SECTION 2.5. Termination, Suspension and Modification of Investment Obligation.............................. 9
III. CONDITIONS PRECEDENT...................................................................................... 10
SECTION 3.1. Conditions Precedent to the Obligation of the Company to Issue and Sell Common Stock........... 10
SECTION 3.2. Conditions Precedent to the Obligation of the Investor to Purchase Common Stock................ 10
SECTION 3.3. Due Diligence Review........................................................................... 13
IV. REPRESENTATIONS AND WARRANTIES OF INVESTOR................................................................. 15
SECTION 4.1. Authority...................................................................................... 15
SECTION 4.2. No Brokers..................................................................................... 16
SECTION 4.3. Not an Affiliate............................................................................... 16
SECTION 4.4. Organization and Standing...................................................................... 16
SECTION 4.5. Absence of Conflicts........................................................................... 16
SECTION 4.6. Disclosure: Access to Information.............................................................. 16
SECTION 4.7. No Hedging or Short Selling.................................................................... 16
SECTION 4.8. Compliance with Securities Laws................................................................ 17
V. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................................................... 17
SECTION 5.1. Corporate Organization......................................................................... 17
SECTION 5.2. Capitalization................................................................................. 17
SECTION 5.3. Subsidiaries................................................................................... 18
SECTION 5.4. Authorization.................................................................................. 18
SECTION 5.5. No Violation, Consents......................................................................... 19
SECTION 5.6. Compliance With Applicable Law................................................................. 19
SECTION 5.7. Litigation..................................................................................... 20
SECTION 5.8. SEC Documents, Financial Statement............................................................. 20
SECTION 5.9. No Undisclosed or Contingent Liabilities....................................................... 21
SECTION 5.10. Taxes......................................................................................... 21
SECTION 5.11. Employee Benefit Plan......................................................................... 21
SECTION 5.12. Absence of Certain Charges.................................................................... 22
SECTION 5.13. Environmental Matters......................................................................... 23
SECTION 5.14. Material Contracts............................................................................ 23
SECTION 5.15. Properties, Encumbrances...................................................................... 24
SECTION 5.16. Insurance..................................................................................... 24
SECTION 5.17. Employee Claims; Labor Matters................................................................ 24
SECTION 5.18. Material Disclosure........................................................................... 24
SECTION 5.19. Intellectual Property......................................................................... 25
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SECTION 5.20. No Undisclosed Events or Circumstances........................................................ 25
SECTION 5.21. No Broker..................................................................................... 25
SECTION 5.22. No Violation of Covenants..................................................................... 25
VI. COVENANTS OF THE COMPANY................................................................................... 25
SECTION 6.1. Registration Rights............................................................................ 25
SECTION 6.2. Reservation of Common Stock.................................................................... 25
SECTION 6.3. Listing of Common Stock........................................................................ 26
SECTION 6.4. Exchange Act Reporting......................................................................... 26
SECTION 6.5. Legends........................................................................................ 26
SECTION 6.6. Corporate Existence............................................................................ 26
SECTION 6.7. Additional SEC Documents....................................................................... 26
SECTION 6.8. "Blackout Period".............................................................................. 26
VII. OTHER ISSUANCES OF COMMON STOCK........................................................................... 27
SECTION 7.1. Equity Offering Adjustment to Purchase Price................................................... 27
SECTION 7.2. Other Adjustments to Purchase Price............................................................ 27
VIII. GOVERNING LAW AND JURISDICTION........................................................................... 27
SECTION 8.1. GOVERNING LAW.................................................................................. 27
SECTION 8.2. Jurisdiction................................................................................... 27
SECTION 8.3. Waiver of Sovereign Immunity................................................................... 28
IX. ASSIGNMENT, ENTIRE AGREEMENT, AMENDMENT, TERMINATION....................................................... 28
SECTION 9.1. Assignment..................................................................................... 28
SECTION 9.2. Entire Agreement; Amendment.................................................................... 28
SECTION 9.3. Publicity...................................................................................... 28
SECTION 9.4. Termination.................................................................................... 28
X. NOTICES, COSTS AND EXPENSES., RIGHT OF FIRST REFUSAL, INDEMNIFICATION....................................... 29
SECTION 10.1. Notices....................................................................................... 29
SECTION 10.2. Costs and Expenses............................................................................ 30
SECTION 10.3. Right of First Refusal........................................................................ 30
SECTION 10.4. Indemnification............................................................................... 30
SECTION 10.5. Contribution.................................................................................. 33
SECTION 10.6. General Indemnification....................................................................... 34
SECTION 10.7. Indemnification of Accountant................................................................. 34
XI. MISCELLANEOUS.............................................................................................. 34
SECTION 11.1. Counterparts.................................................................................. 34
SECTION 11.2. Survival; Severability........................................................................ 34
SECTION 11.3. Title and Subtitles........................................................................... 34
SECTION 11.4. Effectiveness of the Agreement................................................................ 34
EXHIBIT A - FORM OF OPINION OF U.S. COUNSEL
EXHIBIT B - DISCLOSURE SCHEDULE
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EQUITY LINE FINANCING AGREEMENT dated as of July _, 2000 (the
"Agreement"), between CANADIAN IMPERIAL HOLDINGS INC., a Delaware corporation
(the "Investor") and ASM INTERNATIONAL N.V., a corporation organized under the
laws of the Kingdom of the Netherlands (the "Company").
W I T N E S S E T H :
WHEREAS, the parties desire that the Company may Issue to the Investor,
and, upon the terms and subject to the conditions contained herein, the Investor
shall purchase from the Company, from time to time as provided herein, shares of
the Company's common shares, Nlg. 0.01 par value per share (the "Common Stock"),
for a maximum aggregate Purchase Price of $140,000,000 (the "Maximum Offering
Amount"); and
WHEREAS, contemporaneous with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Registration Rights
Agreement (the "Registration Rights Agreement"), pursuant to which the Company
has agreed to provide to the Investor certain registration rights thereunder and
under the Securities Act, the rules and regulations promulgated thereunder and
applicable state securities laws; and
WHEREAS, contemporaneous with the execution and delivery of this
Agreement, the Company and Canadian Imperial Bank of Commerce, an Affiliate of
the Investor (the "Lender"), are executing and delivering a Credit Agreement
(the "Credit Agreement"), pursuant to which the Lender has agreed to provide to
the Company amortizing term loans of up to $75,000,000, collectively.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Investor hereby agree as follows:
I. CERTAIN DEFINITIONS
SECTION 1.1. Defined Terms. As used in this Agreement (including
the recitals above), the following terms shall have the following meanings
specified or indicated (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Affiliate" shall mean, with respect to a specified Person, a Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such specified Person.
"Applicable Quantity" shall mean, with respect to each purchase of
Common Stock on a Closing Date pursuant to this Agreement, the number of shares
of Common Stock that is purchased by the Investor, rounded up or down to the
nearest whole number of shares.
"Balance Sheet" shall mean the unaudited consolidated balance sheet of
the Company as of March 31, 2000.
"Benefit Plan" shall have the meaning set forth in Section 5.11 hereof.
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"Blocking Event" shall have the meaning set forth in Section 2.5(a)
hereof.
"Blocking Notice" shall have the meaning set forth in Section 4 of the
Registration Rights Agreement.
"Bloomberg" shall mean Bloomberg Financial Press.
"Blue Sky Laws" shall mean the United States state securities and
takeover laws.
"Calculation Date" shall mean the fifth Trading Day following a Notice
Date.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
any and all equivalent ownership interests in a Person (other than a
corporation).
"Closing" shall mean the consummation of each purchase and sale of
Common Stock pursuant to Section 2.4 hereof.
"Closing Date" shall mean a date that is at least five Business Days
following a Notice Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment Period" shall mean the period commencing on the date hereof
and expiring on the earliest to occur of (a) the election by the Company or the
Investor to terminate this Agreement pursuant to Section 9.4 herein, (b) the
date on which the Investor shall have made purchases of Common Stock pursuant to
this Agreement in an aggregate Purchase Price of $140,000,000 or such lesser
maximum purchase amount as determined pursuant to Section 2.2, (c) the date this
Agreement is terminated pursuant to Section 2.5, and (d) the date occurring 24
months (subject to extension as provided by Section 2.5(a)(ii) after the date of
this Agreement.
"Common Stock" shall have the meaning set forth in the first recital of
this Agreement.
"Company Assets" shall have the meaning set forth in Section 5.15
hereof.
"Company Put Amount" shall have the meaning set forth in Section 2.1(a)
hereof.
"Company Put Notice" shall have the meaning set forth in Section 2.3(a)
hereof.
"Compensation Plans" shall mean any stock or option or similar
equity-based compensation plans.
"Condition Satisfaction Date" shall have the meaning set forth in
Section 3.2 hereof.
"Credit Agreement" has the meaning set forth in the third recital of
the Agreement.
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"Disclosure Schedule" shall mean a disclosure schedule, delivered by
the Company to the Investor on the date of this Agreement and attached hereto as
Exhibit B, concerning the representations and warranties of the Company set
forth in Article V of this Agreement.
"Dollars," "$" or "U.S.$" shall mean United States dollars.
"Effective Date" shall mean such date as all of the three following
conditions shall have occurred: (i) the Company shall have delivered the fully
executed Registration Rights Agreement, and any other documents required to be
delivered pursuant to the terms of this Agreement, (ii) the Company shall have
indicated to the Investor in writing that the Exhibits to this Agreement are in
final form and delivered such Exhibits to the Investor, and (iii) the
Registration Statement shall have become effective.
"Environmental Laws" shall mean all federal, state, local and foreign
laws and regulations primarily relating to pollution or the environment
(including, without limitation, ambient air, surface water, ground water, land
surface or subsurface strata), including, without limitation, laws and
regulations primarily relating to emissions, discharges, releases or threatened
releases of Materials of Environmental Concern, or otherwise primarily relating
to the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Materials of Environmental Concern.
"Equity Offering" shall mean the issuance and sale by the Company, (a)
in a registered public offering or (b) in a transaction exempt from or not
subject to the registration requirements of the Securities Act, of any shares of
Common Stock or securities which are convertible into or exchangeable for the
Company's Common Stock or any warrants, options or other rights to subscribe for
or purchase Common Stock or any such convertible or exchangeable securities
(other than securities issued or issuable to any present or future or former (at
the time of issuance) employee, officer, director or consultant of the Company
or its Subsidiaries pursuant to any Compensation Plans), upon the conversion or
exchange of convertible or exchangeable securities or upon the exercise of
warrants, or other rights, or upon the issuance of any shares of Common Stock
issued upon exercise of options, conversion or exchange of convertible or
exchangeable securities, warrants or other rights outstanding on the date of
execution and delivery of this Agreement, but other than (i) those listed or
described in the SEC Documents, (ii) shares of Common Stock which may be issued
upon exercise of options or other rights granted under the Compensation Plans,
and (iii) shares of Common Stock or securities which are convertible into or
exchangeable for Common Stock or any warrants, options or other rights to
subscribe for or purchase Common Stock or any such convertible or exchangeable
securities, in each case which are issued in strategic partnering transactions
that do not result in an acquisition of a business or a change in control of the
Company.
"Equity Offering Purchase Price" shall mean the lowest effective
purchase price per share of the Common Stock (or other securities as described
in the definition of "Equity Offering," determined on a common stock equivalent
basis and including any exercise or conversion price) in an Equity Offering,
expressed as a percentage of the simple average of the
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daily weighted average price of the Common Stock for the five Trading Days prior
to the date of the Equity Offering, as reported on Bloomberg.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, together with the rules and regulations promulgated thereunder.
"GAAP" shall have the meaning set forth in Section 5.8(a).
"Governmental Entity" shall mean any federal, state, local or foreign
legislative body, court, government, department or instrumentality, or
governmental, administrative or regulatory authority or agency.
"Investment Amount" shall mean, with respect to any purchase of shares
of Common Stock on a Closing Date under this Agreement, the product of the
Purchase Price and the Applicable Quantity.
"Investor Call Amount" shall have the meaning set forth in Section
2.1(b) hereof.
"Investor Call Notice" shall have the meaning set forth in Section
2.3(b) hereof
"Knowledge of the Company" shall mean the actual knowledge, without
independent inquiry, of any of the executive officers of the Company.
"Knowledge of the Investor" shall mean the actual knowledge, without
independent inquiry, of any of the persons executing this agreement on behalf of
the Investor.
"Lender" shall mean the Canadian Imperial Bank of Commerce, in its
capacity as a lender under the Credit Agreement.
"Liens" shall have the meaning set forth in Section 5.15 hereof.
"Loan Amount" shall mean, as of any specified date, the aggregate
principal amount of loans outstanding under the Credit Agreement.
"Loan Reduction Amount" shall have the meaning set forth in Section
2.4(a)(i)(B)(1) hereof.
"Margin Call Event" has the meaning set forth in Section 9.10(b) of the
Credit Agreement.
"Material Adverse Effect" shall mean any effect on the business,
operations, properties or financial condition of the Company which is material
and adverse to the Company or to the Company and any other entities controlled
by the Company, taken as a whole, or any condition or situation which could
prohibit, impair or otherwise interfere with the ability of the Company to enter
into and perform its obligations under this Agreement, the Registration Rights
Agreement or the Credit Agreement.
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"Materials of Environmental Concern" shall mean hazardous substances as
defined under the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. ss. 9601, et seq. and hazardous wastes as defined under
the Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901, et seq. and
petroleum and petroleum products and such other chemicals, materials or
substances as are listed as "hazardous wastes", "hazardous materials", "toxic
substances", or words of similar import under any similar federal, state, local
or foreign laws.
"Maximum Offering Amount" shall have the meaning set forth in the first
recital of this Agreement.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notice Date" shall mean, with respect to each purchase and sale of
Common Stock pursuant to this Agreement, a Trading Day (which shall be at least
five Business Days following the previous Notice Date, if any) on which either
(i) the Company delivers to the Investor a Company Put Notice or (ii) the
Investor delivers to the Company an Investor Call Notice.
"Outstanding Commitment Amount" shall have the meaning set forth in
Section 2.2(b) hereof.
"Payment Date" shall mean the third Business Day following a Closing
Date.
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a government or
agency or subdivision thereof.
"Principal Market" shall mean the New York Stock Exchange, the American
Stock Exchange, the Nasdaq National Market, or any similar organization or
agency succeeding such market or exchange's functions of reporting prices,
whichever is at the time the principal U.S. trading exchange or market for the
Common Stock.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by any Prospectus supplement, including
post-effective amendments, and all material incorporated by reference in such
Prospectus.
"Purchase Price" shall have the meaning set forth in Section 2.4(c)
hereof.
"Registration Rights Agreement" shall have the meaning set forth in the
second recital of this Agreement.
"Registration Statement" shall have the meaning set forth in Section
3.2(a) hereof.
"Representative" shall have the meaning set forth in Section 3.3(a)
hereof.
"SEC" shall mean the Securities and Exchange Commission.
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"SEC Documents" shall have the meaning set forth in Section 5.8 hereof.
"Securities Act" shall have the meaning set forth in the recitals
above.
"Securities Intermediary" means CIBC World Markets Corp., as securities
intermediary under the Security Agreement.
"Security Agreement" shall mean that Security Agreement, dated as of
July 6, 2000, among Advanced Semiconductor Materials (Netherlands Antilles)
N.V., as Grantor and the Lender.
"Stock Price" on a given Trading Day shall mean the volume-weighted
average trading price for the Common Stock on the Principal Market during such
Trading Day as reported by Bloomberg.
"Subsidiary" shall mean, with respect to any Person, any corporation,
limited or general partnership, trust, association or other business entity of
which 50% or more of the outstanding Capital Stock or other interests entitled
to vote in the election of the board of directors of such corporation
(irrespective of whether, at the time, Capital Stock of any other class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency), managers, trustees or other controlling
persons, or an equivalent controlling interest therein, of such Person is, at
the time, directly or indirectly, owned by such Person and/or one or more
Subsidiaries of such Person.
"Tax Return" shall mean any report, return, information statement or
other information required to be supplied to any federal, state, local or
foreign taxing authority, or any election permitted to be made, in connection
with Taxes.
"Taxes" shall mean all taxes, charges, fees, levies, duties or other
assessments, including without limitation all net income, gross income, gross
receipts, franchise, value added, sales, use, property, ad valorem, transfer,
withholding, profits, license, employee, payroll, social security, unemployment,
excise, estimated, severance and any other taxes, duties, withholdings, fees,
assessments or charges of any kind whatsoever, including any interest, penalties
or additional amounts attributable thereto, imposed by any federal, state, local
or foreign taxing authority.
"Trading Day" shall mean any day during which the Principal Market
shall be open for business and on which trading of the Common Stock on the
Principal Market shall not have been suspended or limited.
"Volume Limit" shall mean, with respect to each purchase and sale of
Common Stock pursuant to a Company Put Notice, that number of shares equal to
25% of the reported trading volume of the Common Stock, as reported by
Bloomberg, for the week immediately preceding the week during which the Company
delivers to the Investor a Company Put Notice.
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II. PURCHASE AND SALE OF COMMON STOCK
SECTION 2.1. Investments. Subject to the terms and conditions set
forth herein (including, without limitation, the provisions of Article III
hereof), during the Commitment Period:
(a) Company Put. If the Company elects to deliver a Company Put Notice
to the Investor during the Commitment Period in accordance with Section 2.3(a)
hereof, then upon the delivery of such Company Put Notice, the Investor shall be
obligated to purchase from the Company shares of Common Stock (not to exceed the
Volume Limit) on the Closing Date specified therein for an Investment Amount
specified therein, which Investment Amount shall not exceed $10,000,000 (the
"Company Put Amount").
(b) Investor Call. In the event that a Margin Call Event shall have
occurred and be continuing during the Commitment Period, the Investor may
deliver an Investor Call Notice to the Company in accordance with Section 2.3(b)
hereof. Upon delivery of such Investor Call Notice, the Company shall be
obligated to sell shares of Common Stock to the Investor on the Closing Date
specified therein for the Investment Amount specified therein (the "Investor
Call Amount"). The Investor Call Amount shall be that amount which, when applied
as a reduction in the Loan Amount, shall be sufficient to cure any Margin Call
Event occurring under the Credit Agreement. The Investor Call Amount shall be
calculated by the Investor and acknowledged by the Company, provided, however,
that, the calculation by the Investor shall be deemed correct absent manifest
error.
SECTION 2.2. Limitations on Investment Amounts.
(a) Overall Maximum. In no event shall the aggregate dollar amount of
the purchases of Common Stock made by the Investor at Closings pursuant to
Section 2.1 exceed the Maximum Offering Amount.
(b) Commitment Period Limits. Notwithstanding the obligation of the
Investor to purchase shares of Common Stock pursuant to Section 2.1(a), the
difference between the Maximum Offering Amount and the aggregate Investment
Amount of all purchases of Common Stock under this Agreement during the
Commitment Period (such difference, the "Outstanding Commitment Amount") at any
time shall not be less than the Loan Amount.
(c) 4.9% Limit. Notwithstanding anything to the contrary, the Investor
shall not be required or entitled to purchase shares of Common Stock pursuant to
an Investor Call Notice to the extent such purchase, when aggregated with all
other shares of Common Stock then beneficially owned or deemed beneficially
owned by the Investor and all purchases of Common Stock pursuant to this
Agreement or otherwise within the previous sixty days, would result in the
Investor or any Affiliate of the Investor beneficially owning more than 4.9% of
all the issued and outstanding Common Stock on such Closing Date.
(d) 9.9% Limit. Notwithstanding anything herein to the contrary, the
Investor shall not be required or entitled to purchase shares of Common Stock
pursuant to this Agreement
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on any Closing Date to the extent such purchase, when aggregated with all other
shares of Common Stock then beneficially owned or deemed beneficially owned by
the Investor and all purchases of Common Stock pursuant to this Agreement or
otherwise within the previous sixty days, would result in the Investor or any
Affiliate of the Investor beneficially owning more than 9.9% of all the issued
and outstanding Common Stock on such Closing Date.
SECTION 2.3. Mechanics of Notification.
(a) Company Put Notice. On any Notice Date, unless otherwise agreed by
the parties to this Agreement, the Chief Executive Officer or the Chief
Financial Officer of the Company (or such other person as designated by either
in writing) may, at the Company's sole discretion, deliver a written notice to
the Investor (each such notice being a "Company Put Notice") which specifies the
Company Put Amount and the Calculation Date for determining the Applicable
Quantity to be purchased by the Investor on the Closing Date specified therein.
(b) Investor Call Notice. In the event that a Margin Call Event shall
have occurred and be continuing during the Commitment Period, the Investor may,
at its sole discretion, deliver a written notice to the Company (an "Investor
Call Notice") which specifies the Investor Call Amount and the Calculation Date
for determining the Applicable Quantity to be issued by the Company on the
Closing Date specified therein. An Investor Call Notice shall be irrevocable.
(c) Date of Delivery of Notices.
(i) Notices to the Investor. A Company Put Notice or
any other notice sent by the Company to the Investor shall be deemed to be
delivered on the Trading Day it is transmitted by facsimile with confirmation of
acceptance or otherwise received in writing via courier, hand delivery or
first-class mail (return receipt requested) by the Investor, or, if received on
any day which is not a Trading Day, shall be deemed to be delivered on the
immediately succeeding Trading Day.
(ii) Notices to the Company. An Investor Call Notice
or any other notice sent by the Investor to the Company shall be deemed to be
delivered on the Trading Day it is transmitted by facsimile with confirmation of
acceptance or otherwise received in writing via courier, hand delivery or
first-class mail (return receipt requested) by the Company, or, if received on
any day which is not a Trading Day, shall be deemed to be delivered on the
immediately succeeding Trading Day.
SECTION 2.4. Closings.
(a) Deliveries at Closings. (i) On each Closing Date pursuant to a
Company Put Notice (A) the Company shall deliver to the Investor one or more
certificates representing the Applicable Quantity registered in the name of the
Investor or, at the Investor's option, deposit such certificate(s) into such
account or accounts previously designated by the Investor, and (B) the Investor
shall deliver to the Company the Company Put Amount, provided, however that, if
such acquisition of Common Stock by the Investor would cause the Outstanding
Commitment
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Amount to be less than the Loan Amount, the Investor shall: (1) cause the Lender
to reduce the Loan Amount by the difference between the Loan Amount and the
Outstanding Commitment Amount (the "Loan Reduction Amount") and (2) deliver to
the Company the difference between the Company Put Amount and the Loan Reduction
Amount.
(ii) On each Closing Date pursuant to an Investor
Call Notice (A) the Company shall deliver to the Investor one or more
certificates representing the Applicable Quantity registered in the name of the
Investor or, at the Investor's option, deposit such certificate(s) into such
account or accounts previously designated by the Investor and (B) the Investor
shall cause the Lender to reduce the Loan Amount (in the manner determined by
the Investor in its sole discretion after consultation with the Lender) by an
amount equal to the Investor Call Amount as of the Closing Date, such that any
Margin Call Event, as of the relevant Notice Date, shall have been cured.
(b) On or prior to each Closing Date, each of the Company and the
Investor shall deliver all documents, instruments and writings required to be
delivered or reasonably requested by either of them pursuant to this Agreement
in order to implement and effect the transactions contemplated herein.
(c) Purchase Price Per Share. The purchase price per share of the
Company's Common Stock (the "Purchase Price") shall be determined on the
Calculation Date as an amount equal to 95.5% of the simple average of the daily
weighted average price of the Common Stock for the five previous Trading Days,
as reported on Bloomberg.
SECTION 2.5. Termination, Suspension and Modification of Investment
Obligation.
(a) Blocking Events. The Investor may, but shall not be required to,
purchase any shares of Common Stock from the Company on any Closing Date
pursuant to a Company Put Notice or an Investor Call Notice delivered at any
time during the Commitment Period when there shall exist any one or more of the
following: (A) the withdrawal of the effectiveness of the Registration
Statement, (B) the Company's failure to satisfy the requirements of Section 3.2
or 3.3, or (C) any failure or interruption in the compliance by the Company with
the covenants provided in Article VI (each of (A), (B), and (C), a "Blocking
Event").
(b) Additional Events of Termination of Investor Obligation. The
obligation of the Investor to purchase shares of Common Stock under this
Agreement may, if the Investor in its sole and absolute discretion so elects, be
terminated in the event that (i) there shall occur any stop order or suspension
of the effectiveness of the Registration Statement, or any withdrawal of the
effectiveness of the Registration Statement for a period greater than twenty
(20) Trading Days for any reason other than as a result of subsequent corporate
developments which would require such Registration Statement to be amended to
reflect such event in order to maintain its compliance with the disclosure
requirements of the Securities Act; or (iii) the Company shall at any time fail
to comply with the requirements of Section 6.2, 6.3, 6.4, 6.5 or 6.6 and the
Company shall fail to cure such noncompliance within (A) (1) if the
noncompliance relates to a failure to comply with the provisions of Section 6.3,
6.4, 6.5 or 6.6, thirty (30) calendar days
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after receipt of notice from the Investor of its election to terminate this
Agreement or (2) if the noncompliance relates to a failure to comply with the
provisions of Section 6.2, ninety (90) calendar days after receipt of notice
from the Investor of its election to terminate this Agreement, provided in
either case that the Investor has been notified by the Company of such
noncompliance within five (5) Trading Days of the Chief Executive Officer, Chief
Financial Officer or Treasurer of the Company having become aware of the
occurrence of such noncompliance or, if the noncompliance relates to a failure
of the Company to comply with the provisions of Section 6.6, the Investor
otherwise becomes aware of such noncompliance or (B) otherwise within five (5)
Trading Days of the Chief Executive Officer, Chief Financial Officer or
Treasurer of the Company having become aware of the occurrence of such
noncompliance; provided, however, that notwithstanding the foregoing, the
Investor may, in its sole and absolute discretion, terminate this Agreement if
the Company shall fail to maintain the listing of the Common Stock on a
Principal Market, or if trading of the Common Stock on a Principal Market shall
have been suspended for a period of ten (10) consecutive Trading Days.
III. CONDITIONS PRECEDENT
SECTION 3.1. Conditions Precedent to the Obligation of the Company to
Issue and Sell Common Stock. The obligation hereunder of the Company to issue
and sell Common Stock to the Investor incident to each Closing is subject to the
satisfaction, at or before each such Closing, of each of the conditions set
forth below, which conditions cannot be waived without the prior written consent
of the Company.
(a) Accuracy of the Investor's Representations and Warranties. The
representations and warranties of the Investor set forth in this Agreement shall
be true and correct in all material respects as of the date of each such Closing
as though made at each such time.
(b) Performance by the Investor. The Investor shall have performed,
satisfied and compiled in all material respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied
with by the Investor at or prior to such Closing.
(c) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits or adversely affects any of the transactions contemplated by this
Agreement, and no proceeding shall have been commenced which would be reasonably
likely to have the effect of prohibiting or adversely affecting any of the
transactions contemplated by this Agreement.
SECTION 3.2. Conditions Precedent to the Obligation of the Investor to
Purchase Common Stock. The obligation of the Investor to purchase pursuant to a
Company Put Notice and the right of the Company to deliver a Company Put Notice
and the obligation of the Investor hereunder to acquire and pay for Common Stock
incident to a Closing is subject to the satisfaction, on the date of delivery of
a Company Put Notice, and on the applicable Closing Date (each a "Condition
Satisfaction Date") of each of the following conditions, which conditions may be
waived with the prior written consent of the Investor.
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(a) Registration of the Common Stock with the SEC. The Company shall
have filed with the SEC a registration statement on Form F-3, any successor form
thereto or other appropriate form (the "Registration Statement") for the
registration of the resale of the Common Stock to be acquired pursuant to this
Agreement, under the Securities Act, in accordance with the terms of the
Registration Rights Agreement. Furthermore, the Company shall have filed (i)
with the applicable state securities commissions such blue sky filings as shall
have been reasonably requested by the Investor in accordance with the terms of
the Registration Rights Agreement, and (ii) any required filings with the NASD
or exchange or market where the Common Stock is traded.
(b) Effective Registration Statement. The Registration Statement shall
be in effect and shall remain effective on each Condition Satisfaction Date and
(i) neither the Company nor the Investor shall have received notice that the SEC
has issued or intends to issue a stop order with respect to the Registration
Statement or that the SEC otherwise has suspended or withdrawn the effectiveness
of the Registration Statement, either temporarily or permanently, or intends or
has threatened to do so, and (ii) no other suspension of the use of the
Registration Statement or related Prospectus shall exist.
(c) Accuracy of the Company's Representations and Warranties. The
representations and warranties of the Company as set forth in this Agreement,
the Registration Rights Agreement and the Credit Agreement shall be true and
correct in all material respects as of each Condition Satisfaction Date as
though made at each such time (except for representations and warranties made as
of a specific date).
(d) Performance by the Company. The Company shall have performed,
satisfied and complied with in all material respects all covenants, agreements
and conditions required by this Agreement and the Registration Rights Agreement
to be performed, satisfied or complied with by the Company at or prior to each
Condition Satisfaction Date.
(e) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits or adversely affects any of the transactions contemplated by this
Agreement, and no proceeding shall have been commenced which may have the effect
of prohibiting or adversely affecting any of the transactions contemplated by
this Agreement.
(f) Adverse Changes. Since March 14, 2000, the date through which the
most recent quarterly report of the Company on Form 6-K has been prepared and
filed with the SEC, no event which had or is reasonably likely to have a
Material Adverse Effect has occurred, except as disclosed in the SEC Documents
or Company press releases subsequent to such date.
(g) No Suspension of Trading In or Delisting of Common Stock. The
trading of the Common Stock shall not have been suspended by the SEC, the
Principal Market or the NASD, and the Common Stock shall have been approved for
listing or quotation on and shall not have been delisted from the Principal
Market. The issuance of shares of Common Stock with
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respect to the applicable Closing, if any, shall not violate the shareholder
approval requirements of the Principal Market.
(h) Legal Opinions. The Company shall have caused to be delivered to
the Investor, within five (5) Trading Days following (i) the effective date of
the Registration Statement and (ii) the delivery by the Company of a Company Put
Notice or the delivery by the Investor of an Investor Call Notice, a letter of
the Company's independent counsel containing the opinions and statements set
forth in Exhibit A hereto, addressed to the Investor and stating, inter alia,
that, without independently checking the accuracy of or completeness of, or
otherwise verifying any statements of fact contained in the Registration
Statement, no facts have come to such counsel's attention that has caused it to
believe that the Registration Statement (as amended, if applicable), contains an
untrue statement of material fact or omits a material fact required to make the
statements contained therein, not misleading or that the underlying Prospectus
(if applicable, as so amended or supplemented) contains an untrue statement of
material fact or omits a material fact required to make the statements contained
therein, in light of the circumstances in which they were made, not misleading;
provided, however, that in the event that such a letter cannot be delivered by
the Company's independent counsel to the Investor, the Company shall promptly
notify the Investor and promptly revise the Registration Statement, and the
Company shall not deliver a Company Put Notice or, if a Company Put Notice shall
have been delivered in good faith without knowledge by the Company that a letter
of independent counsel cannot be delivered as required, shall postpone, if
necessary, any pending Closing Date (including a Closing Date with respect to an
Investor Call Notice) for a period of up to five (5) Trading Days until such a
letter is delivered to the Investor (or such Closing shall otherwise be
canceled). In the event of such a postponement, the Purchase Price of the Common
Stock to be issued at such Closing as determined pursuant to Section 2.4 shall
be the lower of such Purchase Price as calculated as of the originally scheduled
Closing Date or calculated as of the actual Closing Date.
(i) Accountant's Letter.
(i) The Company shall have furnished to the Investor
a comfort letter of its independent auditors in customary form, including a
statement to the effect that they have performed the procedures in accordance
with the provisions of Statement on Auditing Standards No. 71, as amended, as
agreed to by the parties hereto, and reports thereon as shall have been
reasonably requested by the Investor with respect to certain financial
information contained in the Registration Statement and shall have delivered to
the Investor a report addressed to the Investor, (x) within five (5) Trading
Days following the effective date of the Registration Statement and (y) within
ten (10) Trading Days following the filing with the SEC of each SEC Document
containing unaudited financial statements of the Company which is deemed to be
incorporated by reference in the Registration Statement; provided, however, that
no "agreed upon procedures" report shall be required to be delivered pursuant to
this Section 3.2(i) unless and until the Company delivers a Company Put Notice.
(ii) In the event that the Investor shall have
requested delivery of an "agreed upon procedures" report pursuant to Section
3.3, the Company shall engage its independent auditors to perform certain agreed
upon procedures and report thereon as shall have
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been reasonably requested by the Investor with respect to certain financial
information of the Company and the Company shall deliver to the Investor a copy
of such report addressed to the Investor.
(iii) In the event that a report required by this
Section 3.2 cannot be delivered by the Company's independent auditors, the
Company shall, if necessary, promptly revise the Registration Statement and the
Company shall not deliver a Company Put Notice or, if a Company Put Notice shall
have been delivered in good faith without knowledge by the Company that a report
of its independent auditors cannot be delivered as required, postpone such
Closing Date for a period of up to five (5) Trading Days until such a report is
delivered (or such Closing shall otherwise be canceled). In the event of such a
postponement, the Purchase Price of the Common Stock to be issued at such
Closing as determined pursuant to Section 2.4 shall be the lower of such
Purchase Price as calculated as of the originally scheduled Closing Date and as
of the actual Closing Date.
(j) Officer's Certificate. The Company shall have delivered to the
Investor, on each Closing Date, a certificate in form and substance reasonably
acceptable to the Investor, executed by an executive officer of the Company, to
the effect that all the conditions to such Closing shall have been satisfied as
at the date of each such certificate.
(k) Due Diligence. No dispute between the Company and the Investor
shall exist pursuant to Section 3.3 as to the adequacy of the disclosure
contained in the Registration Statement.
SECTION 3.3. Due Diligence Review.
(a) Availability of Information. The Company shall make available,
during normal business hours, for inspection and review by the Investor and its
Affiliates, external legal advisors and independent accountants (which counsel
and accountants shall be reasonably acceptable to the Company and, together with
the Affiliates of the Investor, are referred to herein as "Representatives"),
all financial and other records, all SEC Documents and other filings with the
SEC, and all other corporate documents and properties of the Company as may be
reasonably necessary for the purpose of such review, and cause the Company's
officers, directors and employees, within a reasonable time period, to supply
all such information reasonably requested by the Investor or any of its
Representatives in connection with such Registration Statement (including,
without limitation, in response to all questions and other inquiries reasonably
made or submitted by any of them), prior to and from time to time after the
filing and effectiveness of the Registration Statement for the sole purpose of
enabling the Investor and such Representatives to conduct initial and ongoing
due diligence with respect to the Company and the accuracy of the Registration
Statement. Notwithstanding the foregoing, the Investor and its Representatives
shall be allowed to disclose the information described above to any U.S.,
Canadian or other securities regulator in connection with an examination by such
regulator of the Investor.
(b) Nonpublic Information. (i) The Company shall not disclose nonpublic
information to the Investor, advisors to or representatives of the Investor
unless prior to disclosure of such information the Company identifies such
information as being nonpublic
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information and provides the Investor, such advisors and representatives with
the opportunity to accept or refuse to accept such nonpublic information for
review. The Company may, as a condition to disclosing any nonpublic information
hereunder, require the Investor's advisors and representatives to enter into a
confidentiality agreement (including an agreement with such advisors and
representatives prohibiting them from trading in Common Stock during such period
of time as they are in possession of nonpublic information) in form reasonably
satisfactory to the Company and the Investor.
(ii) Nothing herein shall require the Company to
disclose nonpublic information to the Investor or its advisors or
representatives, and the Company represents that it does not disseminate
nonpublic information to any investors who purchase stock in the Company in a
public offering, to money managers or to securities analysts, provided, however,
that notwithstanding anything herein to the contrary, the Company will, as
hereinabove provided, immediately notify the advisors and representatives of the
Investor and, if any, underwriters, of any event or the existence of any
circumstance (without any obligation to disclose the specific event or
circumstance) of which it becomes aware, constituting nonpublic information
(whether or not requested of the Company specifically or generally during the
course of due diligence by any such persons or entities), which, if not
disclosed in the Prospectus included in the Registration Statement, would cause
such Prospectus to include a material misstatement or to omit a material fact
required to be stated therein in order to make the statements therein, in light
of the circumstances in which they were made, not misleading. Nothing contained
in this Section 3.3 shall be construed to mean that such persons or entities
other than the Investor (without the written consent of the Investor prior to
disclosure of such information) may not obtain nonpublic information in the
course of conducting due diligence in accordance with the terms of this
Agreement; provided, however, that in no event shall the Investor's advisors or
representatives disclose to the Investor the nature of the specific event or
circumstances constituting any nonpublic information discovered by such advisors
or representatives in the course of their due diligence without the written
consent of the Investor prior to disclosure of such information. The Investor's
advisors or representatives shall make complete disclosure to the investor's
independent counsel of all events or circumstances constituting nonpublic
information discovered by such advisors or representatives in the course of
their due diligence upon which such advisors or representatives form the opinion
that the Registration Statement contains an untrue statement of a material fact
or omits a material fact required to be stated in the Registration Statement or
necessary to make the statements contained therein, in the light of the
circumstances in which they were made, not misleading. Upon receipt of such
disclosure, the Investor's independent counsel shall consult with the Company's
independent counsel in order to address the concern raised as to the existence
of a material misstatement or omission and to discuss appropriate disclosure
with respect thereto; provided, however, that such consultation shall not
constitute the advice of the Company's independent counsel to the Investor as to
the accuracy of the Registration Statement and related Prospectus. In the event
after such consultation the Investor's independent counsel reasonably believes
that the Registration Statement contains an untrue statement of a material fact
or omits a material fact required to be stated in the Registration Statement or
necessary to make the statements contained therein, in light of the
circumstances in which they were made, not misleading, (A) the Company shall
file with the SEC an amendment to the Registration Statement responsive to such
alleged untrue
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statement or omission and provide the Investor, as promptly as practicable, with
copies of the Registration Statement and related Prospectus, as so amended, (B)
if the Company disputes the existence of any such material misstatement or
omission, and (1) the dispute relates to information other than financial
statements, schedules and other financial or statistical information included or
incorporated by reference therein, the Company's independent counsel shall
provide the Investor's independent counsel with a letter (customary in form and
scope as provided to an underwriter in an underwritten public offering) stating
that, without independently checking the accuracy or completeness of, or
otherwise verifying, any statements of fact contained in the Registration
Statement, nothing has come to their attention that would lead them to believe
that the Registration Statement or the related Prospectus, as of the date of
such letter, contains an untrue statement of a material fact or omits a material
fact required to be stated in the Registration Statement or the related
Prospectus or necessary to make the statements contained therein, in light of
the circumstances in which they were made, not misleading or (2) in the event
the dispute relates to the adequacy of financial disclosure and the Investor
shall reasonably request, the Company's independent auditors shall provide to
the Company a letter outlining the performance of such "agreed upon procedures"
as shall be reasonably requested by the Investor and the Company shall provide
the Investor with a copy of such letter, or (C) if the Company disputes the
existence of any such material misstatement or omission, and the dispute relates
to the timing of disclosure of a material event and the Company's independent
counsel is unable to provide the letter referenced in clause (B)(1) above to the
Investor, then this Agreement shall be suspended for a period of up to thirty
(30) days (or if a Blocking Notice has occurred and is occurring at the end of
such period, such period shall be extended until the date of the expiration of
such Blocking Notice) and, at the end of which, if the dispute still exists
between the Company's independent counsel and the Investor's independent
counsel, either (x) the Company shall amend the Registration Statement as
provided above or provide to the Investor the Company's independent counsel
letter or a copy of the letter of the Company's independent auditors referenced
above, as applicable, or (y) the obligation of the Investor to purchase shares
of Common Stock pursuant to this Agreement shall terminate.
IV. REPRESENTATIONS AND WARRANTIES OF INVESTOR
The Investor represents and warrants to the Company as follows:
SECTION 4.1. Authority. The Investor has full power and authority to
execute and deliver this Agreement and the Registration Rights Agreement, and to
consummate the transactions contemplated hereby and thereby in accordance with
the terms hereof and thereof. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by the Investor. No other proceedings on the part of Investor are
necessary to approve and authorize the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby in accordance with
the terms hereof. This Agreement has been validly executed and delivered by the
Investor and is a valid and binding agreement of the Investor enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
insolvency or similar laws relating to, or affecting generally the enforcement
of, creditors' rights and remedies or by other equitable principles of general
application.
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SECTION 4.2. No Brokers. The Investor has taken no action that would
give rise to any claim by any person (other than the Investor as set forth in
Section 10.2 hereof) for brokerage commission, finder's fees or similar payments
by the Company relating to this Agreement or the transactions contemplated
hereby.
SECTION 4.3. Not an Affiliate. The Investor is not an officer, director
or Affiliate of the Company.
SECTION 4.4. Organization and Standing. The Investor is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware, and has all requisite power and authority as a corporation to
carry on its business as now being conducted, and is duly qualified to do
business and in good standing in each jurisdiction in which the nature of the
business conducted by it makes such qualifications necessary, except where the
failure to be so qualified or in good standing would not reasonably be expected
to have a material adverse effect.
SECTION 4.5. Absence of Conflicts. The execution and delivery of this
Agreement and any other document or instrument executed in connection herewith,
and the consummation of the transactions contemplated hereby and thereby, and
compliance with the requirements hereof and thereof, will not violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding on
the Investor, or the provision of any indenture, instrument or agreement to
which the Investor is a party or is subject, or by which the Investor or any of
its assets is bound, or conflict with or constitute a material default
thereunder, or result in the creation or imposition of any lien pursuant to the
terms of any such indenture, instrument or agreement, or constitute a breach of
any fiduciary duty owed by the Investor to any third party, or require the
approval of any third party (which has not been obtained) pursuant to any
material contract, agreement, instrument, relationship or legal obligation to
which the Investor is subject or to which any of its assets, operations or
management may be subject.
SECTION 4.6. Disclosure: Access to Information. The Investor has
received all documents, records, books and other information pertaining to the
Investor's investment in the Company that have been requested by the Investor.
The Investor further acknowledges that it understands that the Company is
subject to the periodic reporting requirements of the Exchange Act, and the
Investor has reviewed or received copies of any such reports that have been
requested by it and that it considers necessary or appropriate for deciding
whether to enter into this Agreement and perform its obligations hereunder. The
Investor further represents that it had an opportunity to ask questions and
receive answers from the Company regarding the terms and conditions of the
purchase of the Common Stock and the business, properties, prospects and
financial condition of the Company.
SECTION 4.7. No Hedging or Short Selling. (a) During the period sixty
(60) days prior to the date of this Agreement the Investor has not engaged in
any short sales or hedging of any kind in anticipation of this Agreement, and
(b) during the term of this Agreement the Investor may make sales in
anticipation of Company Put Notices, but may not make any sales with the
intention of reducing the price of the Common Stock to Investor's benefit.
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SECTION 4.8. Compliance with Securities Laws. The Investor acknowledges
and agrees that any transactions in the Common Stock effected by the Investor
shall comply with all applicable securities laws, including, without limitation,
if applicable, Regulation M promulgated under the Exchange Act.
V. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as disclosed in the SEC Documents, Company press releases or in
the Disclosure Schedule delivered by the Company to the Investor on the date
hereof, the Company represents and warrants to the Investor as follows:
SECTION 5.1. Corporate Organization. The Company and each of its
Subsidiaries is a corporation duly organized, validly existing and, if
applicable, in good standing under the laws of its jurisdiction of
incorporation, and has all requisite corporate power and authority to own or
lease and operate its properties and to carry on its business as now being
conducted, and is duly qualified to do business and in good standing in each
jurisdiction in which the property owned, leased or operated by it or the nature
of the business conducted by it makes such qualification necessary, except where
the failure to be so qualified or in good standing would not reasonably be
expected to have a Material Adverse Effect. The Company has made available to
the Investor or its agents complete and correct copies of the Certificate of
Incorporation, as amended, and by-laws of the Company as in effect on the date
hereof.
SECTION 5.2. Capitalization. (a) The authorized Capital Stock of the
Company consists of (i) 60,000,000 shares of Common Stock, (ii) 6,900 shares of
preferred stock, Nlg. 100 par value per share (the "Preferred Stock") and (iii)
900 financing preferred shares, Nlg. 100 par value per share (the "Financing
Preferred Stock"). As of the date of this Agreement, there were (i) 48,758,946
shares of Common Stock issued, all of which are duly authorized and validly
issued, fully paid and nonassessable, (ii) no shares of Common Stock owned by
the Company in its treasury and (iii) 430,100 shares of Common Stock reserved
for issuance pursuant to stock options granted or which may be granted under the
Compensation Plans. As of the same date, there were no shares of Preferred Stock
or Financing Preferred Stock outstanding. The Company has not issued any Common
Stock since June 30, 2000, except pursuant to the exercise of stock options or
pursuant to the Company's Compensation Plans, nor has the Company since such
date repurchased or redeemed or acquired any such shares. No shares of Capital
Stock of the Company are entitled to preemptive rights.
(b) Except as set forth in Section 5.2(a) above and in Schedule 5.2(b),
the Company does not have outstanding any Capital Stock or securities
convertible into or exchangeable for any shares of Capital Stock or any options,
warrants or other rights, agreements, arrangements or commitments of any
character to which the Company is a party or otherwise obligating the Company to
issue or sell or entitling any Person to acquire from the Company, and the
Company is not a party to any agreement, arrangement or commitment obligating it
to repurchase, redeem or otherwise acquire, any shares of its Capital Stock or
securities convertible into or exchangeable for any of its Capital Stock.
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(c) Upon issuance of the Common Stock, and payment of the Purchase
Price therefor, pursuant to a purchase and sale in accordance with the terms of
this Agreement, the Company will transfer to the Investor good and valid title
to the Common Stock, free and clear of any material Lien, other than Liens, if
any, created by the Investor and such Common Stock will be duly authorized,
fully paid and nonassessable.
SECTION 5.3. Subsidiaries.
(a) The Company does not have any Subsidiaries that own material assets
or are subject to material liabilities, other than those listed on Schedule
5.3(a) of the Disclosure Schedule. Except as set forth in Schedule 5.3(a), each
Subsidiary is, directly or indirectly, wholly owned by the Company.
(b) Except as set forth in Schedule 5.3(b), (i) all the outstanding
stock or other equity or ownership interests of each Subsidiary is owned free
and clear of all material Liens and is validly issued and (ii) there are no
options, warrants or other rights, agreements, arrangements or commitments of
any character to which any Subsidiary is a party or otherwise obligating any
Subsidiary to issue or sell, or entitling any Person to acquire from any
Subsidiary, and no Subsidiary is a party to any agreement, arrangement or
commitment obligating it to repurchase, redeem or otherwise acquire, any shares
of the Capital Stock or any securities convertible into or exchangeable for the
Capital Stock of any such Subsidiary.
SECTION 5.4. Authorization. The Company has full corporate power and
authority to execute and deliver this Agreement and the Registration Rights
Agreement, to issue the Common Stock pursuant to this Agreement, and to
consummate the transactions contemplated hereby and thereby in accordance with
the terms hereof and thereof. The execution and delivery of this Agreement and
the Registration Rights Agreement, and the issuance of the Common Stock issuable
upon a Closing, and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by the Board of Directors of the Company. To
the Knowledge of the Company, no other corporate proceedings on the part of the
Company are necessary to approve and authorize the execution and delivery of
this Agreement and the Registration Rights Agreement, and the issuance of the
Common Stock issuable upon a Closing, and the consummation of the transactions
contemplated hereby and thereby in accordance with the terms hereof and thereof.
This Agreement and the Registration Rights Agreement have been duly executed and
delivered by the Company, and the Common Stock issuable in accordance with the
terms of this Agreement, upon the payment of the purchase price therefor in
accordance with the terms hereof and thereof, will be duly and validly issued,
fully paid and nonassessable. Each of this Agreement and the Registration Rights
Agreement constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
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SECTION 5.5. No Violation, Consents.
(a) Assuming the making or receipt of all filings, notices,
registrations, consents, approvals, permits and authorizations described in this
Section 5.5, the execution and delivery of this Agreement and the Registration
Rights Agreement, and the consummation of the transactions contemplated hereby
and by the Registration Rights Agreement., the compliance by the Company with
any of the provisions hereof or of the Registration Rights Agreement, will not
(i) conflict with, violate or result in any breach of the Certificate of
Incorporation, as amended, or by-laws of the Company or its Subsidiaries, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default or give rise to any right of termination,
cancellation or acceleration under, or result in the creation of any Lien on or
against any of the properties of the Company or any of its Subsidiaries pursuant
to any of the terms or conditions of any note, bond, mortgage, indenture,
license, agreement or other instrument or obligation to which the Company or any
of its Subsidiaries is a party or by which any of them or any of their
properties or assets may be bound, or (iii) violate any statute, law, rule,
regulation, writ, injunction, judgment, order or decree of any Governmental
Entity, binding on the Company or any of its Subsidiaries or any of their
properties or assets, excluding from the foregoing clauses (i), (ii) and (iii)
conflicts, violations, breaches, defaults, rights of termination, cancellation
or acceleration, and liens which, individually or in the aggregate, would not
have a Material Adverse Effect, would not prevent or materially delay
consummation of the transactions contemplated hereby and would not affect the
validity of the issuance of the Common Stock.
(b) Except for (i) applicable requirements, if any, under Blue Sky
Laws, (ii) the filing of additional listing applications with Nasdaq, and (iii)
the filing of the Registration Statement, no filing, consent, approval, permit,
authorization, notice, registration or other action of or with any Governmental
Entity is required to be made or obtained by or with respect to the Company or
any of its Subsidiaries in connection with the execution and delivery of this
Agreement and the Registration Rights Agreement, the issuance of the Common
Stock or the consummation by the Company of the transactions contemplated hereby
and thereby.
SECTION 5.6. Compliance With Applicable Law. The businesses of the
Company are not being conducted in violation of any law, ordinance, rule,
regulation, judgment, decree or order of any Governmental Entity, except for
possible violations which, individually or in the aggregate, would not have a
Material Adverse Effect. The Company and each of its Subsidiaries possess all
domestic and foreign governmental licenses, permits, authorizations and
approvals and have made all registrations and given all notifications required
under federal, state, local or foreign law to carry on in all respects their
businesses as currently conducted, except as otherwise disclosed in writing by
the Company to the Investor on or prior to the date hereof, and except where the
failure to have any such licenses, permits, authorizations or approvals,
individually or in the aggregate, would not have a Material Adverse Effect. No
investigation or review by any Governmental Entity with respect to the Company
or any of its Subsidiaries is pending or, to the knowledge of the Company,
threatened, other than those the outcome of which, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
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SECTION 5.7. Litigation. There is no claim, action or proceeding
(including any condemnation proceeding) pending or, to the Knowledge of the
Company, threatened against or relating to the Company or any of its
Subsidiaries by or before any Governmental Entity or arbitrator that if
adversely determined, individually or in the aggregate, would have a Material
Adverse Effect, nor is there any judgment, decree, injunction, rule or order of
any Governmental Entity or arbitrator outstanding against the Company or any of
its Subsidiaries that has had, or would reasonably be expected in the future to
have, a Material Adverse Effect or which reasonably could be expected to
materially adversely affect the transactions contemplated by this Agreement.
SECTION 5.8. SEC Documents, Financial Statements.
(a) The Common Stock is registered pursuant to Section 12(g) of the
Exchange Act and the Company has filed all reports, schedules, forms, statements
and other documents, together with all exhibits, financial statements and
schedules thereto required to be filed by it with the SEC pursuant to the
reporting requirements of the Exchange Act, including material filed pursuant to
Section 13(a) or 15(d) thereof (all of the foregoing, and all other documents
and registration statements, whether heretofore or hereafter filed by the
Company with the SEC since January 1, 1996, and the Registration Statement, when
declared effective, being hereinafter referred to as the "SEC Documents"). The
Common Stock is currently listed or quoted on the Principal Market, which is, as
of the date hereof, the Nasdaq National Market. The Company has delivered or
made available to the Investor true and complete copies of the SEC Documents
through the date hereof. The Company has not provided to the Investor any
material information which, according to applicable law, rule or regulation,
should have been disclosed publicly by the Company but which has not been so
disclosed, other than with respect to the transactions contemplated by this
Agreement. As of their respective dates, the SEC Documents complied in all
material respects with the requirements of the Exchange Act or the Securities
Act, as the case may be, and the rules and regulations of the SEC promulgated
thereunder and other federal, state and local laws, rules and regulations
applicable to such SEC Documents, and none of the SEC Documents contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated herein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. As of the
date of delivery by the Investor of the Prospectus contained in the Registration
Statement in connection with sales of Common Stock by the Investor, such
Prospectus will comply in all material respects with the requirements of the
Securities Act and the rules and regulations of the SEC promulgated thereunder,
and other federal, state and local laws, rules and regulations applicable to
such Prospectus, absent a Blocking Notice in effect on such date. The financial
statements of the Company included (or incorporated by reference) in the SEC
Documents comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting principles
in the United States of America ("GAAP") applied on a consistent basis during
the periods involved (except (i) as may be otherwise indicated in such financial
statements or the notes thereto or (ii) in the case of unaudited interim
statements, to the extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material
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respects the consolidated financial position of the Company and its Subsidiaries
as of the dates thereof and the results of operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
(b) During the three (3) years preceding the date hereof, the SEC has
not issued an order preventing or suspending the use of any prospectus relating
to the offering of any shares of Common Stock or instituted proceedings for that
purpose.
SECTION 5.9. No Undisclosed or Contingent Liabilities. Neither the
Company nor any of its Subsidiaries has any claims, liabilities or obligations
of any nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether due or to become due) that would be required to be reflected or reserved
against on a consolidated balance sheet of the Company and its consolidated
Subsidiaries under GAAP, except for claims, liabilities or obligations (i)
reflected or reserved against on the Balance Sheet, (ii) disclosed in the
Company's most recent Form 20-F or any SEC Document filed subsequent to such
Form 20-F or (iii) incurred by the Company or any of its Subsidiaries since
March 31, 2000 in the ordinary course of business and consistent with past
practice and that, individually or in the aggregate, would not have a Material
Adverse Effect.
SECTION 5.10. Taxes. The Company and its Subsidiaries have timely filed
all necessary Tax Returns and notices and have paid all federal, state, county,
local and foreign taxes of any nature whatsoever for all the tax years through
December 31, 1999 indicated on such Tax Returns as being due and payable, to the
extent such taxes have become due (other than taxes which are being challenged
in good faith by the Company and have been adequately reserved for by the
Company), except where any failure to file or pay would not have a Material
Adverse Effect. There are no tax deficiencies which would reasonably be expected
to have a Material Adverse Effect; the Company and its Subsidiaries have paid
all Taxes which have become due and payable by the Company (other than Taxes
that are being challenged in good faith or have been adequately reserved for by
the Company), whether pursuant to any assessments, or otherwise, except where
any failure to pay would not have a Material Adverse Effect, and there is no
further liability (whether or not disclosed on such returns) or assessments for
any such Taxes, and no interest or penalties accrued or accruing with respect
thereto; the amounts currently set up as provisions for Taxes or otherwise by
the Company and its Subsidiaries on their books and records are sufficient in
all material respects for the payment of all their unpaid federal, foreign,
state, county and local taxes accrued through the dates as of which they speak,
except where such insufficiency would not have a Material Adverse Effect, and
for which the Company and its Subsidiaries may be liable in their own right, or
as transferee of the assets of, as successor to any other corporation,
association, partnership, joint venture or other entity.
SECTION 5.11. Employee Benefit Plan. All employee benefit plans and
other benefit arrangements covering the employees of the Company and its
Subsidiaries (the "Benefit Plans") have been operated and administered in all
material respects in compliance with their terms and applicable law, and there
are no claims, liabilities or obligations of any kind whatsoever relating to the
Benefit Plans which individually or in the aggregate would have a Material
Adverse Effect.
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SECTION 5.12. Absence of Certain Charges. Since March 31, 2000, the
business of the Company and its Subsidiaries has been conducted in the ordinary
course consistent with past practices and there has not been:
(i) to the Knowledge of the Company, any event,
occurrence, development or state of circumstances or facts which, individually
or in the aggregate, has had or would reasonably be expected to have a Material
Adverse Effect,
(ii) any declaration, setting aside or payment of any
dividend or other distribution with respect to any shares of Capital Stock of
the Company or any repurchase, redemption or other acquisition by the Company or
any Subsidiary of any outstanding shares of Capital Stock or other securities
of, or other ownership interests in, the Company or any Subsidiary;
(iii) any amendment of any material term of any
outstanding security of the Company or any Subsidiary;
(iv) any incurrence, assumption or guarantee by the
Company or any Subsidiary of any indebtedness for borrowed money, other than (i)
working lines of credit or borrowings under existing lines of credit or floor
plan financing arrangements, (ii) any license fees and royalties and (iii)
pursuant to any lease;
(v) any creation or assumption by the Company or any
Subsidiary of any Lien on any material asset other than in the ordinary course
of business consistent with past practice;
(vi) any making of any loan, advance or capital
contributions to or investment in any Person in excess of $500,000 other than
loans, advances or capital contributions to or investments in wholly-owned
Subsidiaries made in the ordinary course of business consistent with past
practice;
(vii) any damage, destruction or other casualty loss
(whether or not covered by insurance) affecting the business or assets of the
Company or any Subsidiary which, individually or in the aggregate, has had or
would reasonably be expected to have a Material Adverse Effect;
(viii) any transaction or commitment made, or any
contract or agreement entered into, by the Company or any Subsidiary relating to
its assets or business (including the acquisition or disposition of any assets)
or any relinquishment by the Company or any Subsidiary of any contract or other
right, in any such case, material to the Company and the Subsidiaries, taken as
a whole, other than transactions and commitments in the ordinary course of
business consistent with past practice and those contemplated by this Agreement;
or
(ix) any material change in any method of accounting
or accounting practice by the Company or any Subsidiary.
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SECTION 5.13. Environmental Matters.
(a) The Company and its Subsidiaries have obtained all permits,
licenses and other authorizations, and have made all registrations and given all
notifications, that are required with respect to the operation of their
respective businesses under all applicable Environmental Laws other than those
permits, licenses, other authorizations, registrations and notifications the
failure of which to obtain or make, individually or in the aggregate, would not
have a Material Adverse Effect.
(b) The Company and its Subsidiaries are in compliance in all material
respects with all terms and conditions of the required permits, licenses and
other authorizations referred to in subsection (a) of this Section 5.13, and
also in compliance in all material respects with any other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in the Environmental Laws or contained in any
regulation, code, plan, order, decree, judgment, injunction, settlement
agreement, notice or demand letter issued, entered, promulgated or approved
thereunder, other than where the failure to be in such compliance, individually
or in the aggregate, would not have a Material Adverse Effect.
(c) There is no civil, criminal or administrative action, suit, demand,
claim, hearing, notice of violation, investigation, proceeding, notice or demand
letter (collectively, "Actions") pending or, to the Knowledge of the Company,
threatened against the Company or any of its Subsidiaries relating in any way to
Environmental Laws or any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered, promulgated or approved
thereunder other than Actions that, if determined adversely to the Company or
such Subsidiaries, would not reasonably be expected to have a Material Adverse
Effect.
SECTION 5.14. Material Contracts.
(a) Except as filed as an exhibit to or incorporated by reference in
the Company's registration statement on Form F-3, which became effective on
April 7, 2000, as of the date hereof neither the Company nor any Subsidiary is a
party to or is bound by any agreement or arrangement that is required to be
filed in accordance with the terms of Item 601(b)(10) of Regulation S-K under
the Securities Act ("Material Contracts").
(b) Each Material Contract is in full force and effect and constitutes
a legal, valid and binding obligation of the Company or the Subsidiary party
thereto and, to the Knowledge of the Company, each other party thereto, and is
enforceable against the Company or its Subsidiaries and, to the Knowledge of the
Company, each other party thereto in accordance with its terms, except to the
extent that such enforceability is limited by (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity, and neither the Company nor any of Its Subsidiaries, nor,
to the Knowledge of the Company, any other party thereto is in conflict
therewith or in violation or breach thereof or default thereunder, except for
such conflicts, violations, breaches and defaults which, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.
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SECTION 5.15. Properties, Encumbrances. Subject to the next succeeding
sentence, each of the Company and its Subsidiaries has good and valid title, and
in the case of real property, insurable title, to all material properties and
assets which it purports to own (real, personal and mixed, tangible and
intangible, including all forms of goodwill, rights, intellectual property and
intellectual property rights) (collectively, the "Company Assets"), including,
without limitation, all the material properties and assets reflected on the
Balance Sheet (except for (i) real and personal property sold since the date of
the Balance Sheet or which was obsolete or no longer useful in connection with
the businesses of the Company and its Subsidiaries and (ii) capital leases
reflected on the Balance Sheet), and all material properties and assets
purchased by the Company and its Subsidiaries since the date of the Balance
Sheet. All Company Assets are free and clear of all liens, mortgages, claims,
interests, charges, security interests or other encumbrances or adverse
interests of any nature whatsoever and other title or interest retention
arrangements ("Liens") except (A) as reflected on the Balance Sheet, (B) as set
forth on Schedule 1 to the Credit Agreement, (C) statutory Liens of carriers,
warehousemen, mechanics, workmen and materialmen for liabilities and obligations
incurred in the ordinary course of business consistent with past practice that
are not yet delinquent or being contested in good faith, (D) such defects,
irregularities, encumbrances and other imperfections of title as normally exist
with respect to property similar in character and that, individually or in the
aggregate together with all other such exceptions, do not have a Material
Adverse Effect, (E) Liens for Taxes and (F) Liens that do not interfere with the
present use of the property subject to the Lien.
SECTION 5.16. Insurance. All current primary, excess and umbrella
policies of insurance owned or held by or on behalf of or providing insurance
coverage to the Company or any of its Subsidiaries are in full force and effect.
With respect to all such insurance policies purchased by the Company or any of
its Subsidiaries, no premiums are in arrears and no notice of cancellation or
termination has been received with respect to any such policy, other than
notices of cancellation or termination routinely sent at the end of a policy
term. To the Knowledge of the Company, the insurance coverage of the Company and
its Subsidiaries is consistent with the coverage generally maintained by
corporations of similar size and engaged in similar lines of business.
SECTION 5.17. Employee Claims; Labor Matters. There are no claims or
actions pending or, to the Knowledge of the Company, threatened between the
Company or any of its Subsidiaries and any of their respective employees,
unions, or former employees that would be reasonably likely to, individually or
in the aggregate, have a Material Adverse Effect. The Company and each of its
Subsidiaries have no collective bargaining agreements covering employees of the
Company or any Subsidiary.
SECTION 5.18. Material Disclosure. To the Knowledge of the Company,
there is no fact, transaction or development which the Company has not disclosed
to the Investor in writing (including pursuant to the SEC Documents filed prior
to the date hereof) which would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. This Agreement (including any
Exhibit or Schedule hereto) and any written statements, documents or
certificates furnished to the Investor by the Company or its Subsidiaries prior
to the date hereof in connection with the transactions contemplated hereby,
taken as a whole, do not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be
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stated herein or therein or necessary to make the statements herein or therein,
in light of the circumstances under which they were made, not misleading.
SECTION 5.19. Intellectual Property. The Company and its Subsidiaries
own or possess adequate patent rights or licenses or other rights to use patent
rights, inventions, trademarks, service marks, trade names and copyrights
material to the general business now operated by them and neither the Company
nor any of its Subsidiaries has received any notice of infringement or conflict
with asserted rights of others with respect to any patent, patent rights,
inventions, trademarks, service marks, trade names or copyrights which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
SECTION 5.20. No Undisclosed Events or Circumstances. To the Knowledge
of the Company, since March 31, 2000, no event or circumstance has occurred or
exists with respect to the Company or its Subsidiaries or their respective
businesses, properties, operations or financial condition, which, under
applicable law, rule or regulation, requires public disclosure or announcement
prior to the date hereof by the Company.
SECTION 5.21. No Broker. The Company has taken no action which would
give rise to any claim by any Person for brokerage commissions, finder's fees or
similar payments by the Investor relating to this Agreement for the transactions
contemplated hereby.
SECTION 5.22. No Violation of Covenants. To the Knowledge of the
Company, no event of default has occurred and is continuing (or event which with
the lapse of time or notice or both would constitute such an event) which has
not otherwise been waived under any revolving credit facility, indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument for
money borrowed or any other material agreement to which the Company or any of
its Subsidiaries is bound, or to which any of the property or assets of the
Company or any of its Subsidiaries is subject, and in any case, which the
failure to cure or obtain a waiver with respect to such default would have a
Material Adverse Effect.
VI. COVENANTS OF THE COMPANY
SECTION 6.1. Registration Rights. The Company shall comply in all
respects with the terms of the Registration Rights Agreement.
SECTION 6.2. Reservation of Common Stock. Except as disclosed in the
SEC Documents, the Company has reserved and will continue to reserve and keep
available at all times during the Commitment Period, the number of shares of
Common Stock, free of preemptive rights, set forth below:
(a) on the Effective Date, a number of shares equal to or greater than
the result of (i) S140,000,000 divided by (ii) the Purchase Price on the
Effective Date, rounded up to the nearest whole integer; and
(b) on each Trading Day following the Effective Date, a number of
shares equal to or greater than the result of (i) an amount equal to 120% of the
Loan Amount on such Trading
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Day divided by (ii) the Purchase Price on such Trading Day, rounded up to the
nearest whole integer.
Notwithstanding the foregoing, the number of shares so reserved from
time to time shall be adjusted proportionally to reflect stock splits,
dividends, distributions, redenominations, combinations and similar transactions
involving the Company's Common Stock.
SECTION 6.3. Listing of Common Stock. During the term of this
Agreement, the Company hereby agrees to maintain the listing of the Common Stock
on a Principal Market, and as soon as reasonably practicable but in any event no
later than the Effective Date to list the shares of Common Stock issuable under
this Agreement, subject to the terms of the Registration Rights Agreement. The
Company further agrees that, if the Company applies to have the Common Stock
traded on any other Principal Market, it will include in such application the
Common Stock issuable under this Agreement, and will take such other action as
is necessary or desirable to cause the Common Stock to be listed on such other
Principal Market as promptly as possible. If the Principal Market is the Nasdaq
National Market, the Company shall maintain sufficient net tangible assets to
satisfy the requirements of the NASD for the listing of the Common Stock on the
Nasdaq National Market.
SECTION 6.4. Exchange Act Reporting. During the term of this Agreement,
the Company will comply in all respects with its reporting and filing
obligations under the Exchange Act, and will not take any action or file any
document (whether or not permitted by the Exchange Act or the rules thereunder)
to terminate or suspend its reporting and filing obligations under the Exchange
Act. If required, the Company will take all action to continue the listing and
trading of its Common Stock on the Principal Market and will comply in all
material respects with the Company's reporting, filing and other obligations
under the bylaws or rules of the NASD and the Principal Market.
SECTION 6.5. Legends. The Company shall instruct the applicable
transfer agent to remove all legends or stop transfer or other restrictions from
the certificates representing shares of Common Stock to be sold by the Investor
pursuant to the Registration Statement.
SECTION 6.6. Corporate Existence. During the term of this Agreement,
the Company will take all steps necessary to preserve and continue the corporate
existence of the Company; provided, however, that nothing herein shall be
construed to limit the ability of the Company to partake in any merger, asset
sale or acquisition transaction involving the Company, subject to the Company
complying with the terms of this Agreement.
SECTION 6.7. Additional SEC Documents. During the term of this
Agreement, the Company will notify the Investor as and when all SEC Documents
are submitted to the SEC for filing.
SECTION 6.8. "Blackout Period". During the term of this Agreement, the
Company will immediately notify the Investor upon the occurrence of any
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of the events described in Section 3(d) of the Registration Rights Agreement.
During the period in which any of the events described therein has occurred and
is continuing, the Investor shall not be obligated to purchase any shares of
Common Stock pursuant to a Company Put Notice.
VII. OTHER ISSUANCES OF COMMON STOCK
SECTION 7.1. Equity Offering Adjustment to Purchase Price. In the event
that the Company makes an Equity Offering of or in excess of 100,000 shares
during the Commitment Period or during the period in which any portion of the
Loan Amount is outstanding, then notwithstanding anything herein to the
contrary, the Purchase Price of Common Stock following the consummation of the
Equity Offering shall be the lower of (a) the Equity Offering Purchase Price and
(b) the Purchase Price determined hereunder with respect to purchases of Common
Stock by the Investor.
SECTION 7.2. Other Adjustments to Purchase Price. The daily weighted
average selling price of the Common Stock for any Trading Day used to calculate
the Purchase Price shall be adjusted proportionally to reflect any stock splits,
stock dividends, reclassifications, redenominations, combinations and similar
transactions involving the Company's Common Stock.
VIII. GOVERNING LAW AND JURISDICTION
SECTION 8.1. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES.
SECTION 8.2. Jurisdiction. The parties hereby agree that all actions or
proceedings arising directly or indirectly from or in connection with this
Agreement shall, at the option of either party, be litigated only in the United
States District Court for the Southern District of New York located in New York
County, New York, unless such District Court declines jurisdiction, in which
case such actions or proceedings shall be litigated only in the state court
located in New York County, New York. Each party hereto irrevocably waives, to
the fullest extent permitted by applicable law, any objection which it might now
or hereafter have to the laying of venue of any proceeding in the United States
District Court for the Southern District of New York or the courts of the State
of New York in New York County, and any claim that any proceeding brought in any
such court has been brought in an inconvenient forum. The Company agrees that it
shall at all times have an authorized agent in New York County, New York, upon
whom process may be served in connection with any proceeding hereunder, and the
Company has appointed Corporation Service Company, which currently maintains an
office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as its agent
for such purposes. If for any reason such person shall cease to act as agent for
the service of process, the Company shall promptly appoint another such agent,
and shall forthwith notify the Investor of such appointment. The submission to
jurisdiction reflected in this paragraph shall not (and shall not be construed
so as to) limit the right of any person to commence proceedings in any court of
competent jurisdiction, nor shall the commencement of proceedings in any one or
more jurisdictions preclude the commencement of proceedings in any other
jurisdiction (whether
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concurrently or not) if and to the extent permitted by law. The parties hereto
waive any right to a jury trial in connection with any litigation pursuant to
this Agreement.
SECTION 8.3. Waiver of Sovereign Immunity. The Company irrevocably
waives, to the fullest extent permitted by law, all immunity (whether on the
basis of sovereignty or otherwise) from jurisdiction, attachment (both before
and after judgment) and execution to which it might otherwise be entitled in any
action or proceeding in any court relating in any way to this Agreement and
agrees that it will not raise or claim or cause to be pleaded any such immunity
at or in respect of such action or proceeding.
IX. ASSIGNMENT, ENTIRE AGREEMENT, AMENDMENT, TERMINATION
SECTION 9.1. Assignment. Neither this Agreement nor any rights of the
Investor or the Company hereunder may be assigned by either party to any other
person. Notwithstanding the foregoing, the Investor's rights and obligations
under this Agreement may be assigned at any time, in whole, to any Affiliate of
the Investor (a "Permitted Transferee"), provided, however, that any such
assignment shall not release the Investor from its obligations hereunder. The
rights and obligations of the Investor under this Agreement shall inure to the
benefit of, and be enforceable by and against, any such Permitted Transferee.
SECTION 9.2. Entire Agreement; Amendment. This Agreement, the
Registration Rights Agreement and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof, and no party shall be liable or
bound to any other party in any manner by any warranties, representations or
covenants except as specifically set forth in this Agreement or therein. Except
as expressly provided in this Agreement, neither this Agreement nor any term
hereof may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
SECTION 9.3. Publicity. Each of the Company and the Investor agrees
that it will not disclose, and will not include in any public announcement, the
name of the other without its prior consent, unless and until such disclosure is
required by law or applicable regulation, and then only to the extent of such
requirement. Except as may be required by law, each of the Company and the
Investor shall not issue any press release or make any public statement with
respect to this Agreement prior to consultation with the other party.
SECTION 9.4. Termination.
(a) The Company and the Investor may, by mutual written consent, at any
time, terminate this Agreement and any obligation by the Investor to purchase
any Investment Amount for the remainder of the Commitment Period.
(b) The Investor may terminate this Agreement as a result of (i) a
breach by the Company of any material representation, warranty, covenant or
other obligation in this Agreement or the Registration Rights Agreement or (ii)
if the Investor reasonably determines, in
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its sole discretion, at any time that the adoption of, or change in, or any
change in the interpretation or application of, any law, regulation, rule,
guideline or treaty (including, but not limited to, changes of capital adequacy)
makes it illegal or materially impractical for the Investor to fulfill its
commitment pursuant to this Agreement, but in the case of either (i) or (ii)
above, the Investor may terminate this Agreement only after a 60-day period in
which the parties negotiate in good faith, in the case of (i), a reasonable
substitute for such provision or, in the case of (ii), a reasonable alternative
manner not illegal or impossible for the Investor to fulfill its commitment
pursuant to this Agreement.
X. NOTICES, COSTS AND EXPENSES, RIGHT OF FIRST REFUSAL, INDEMNIFICATION
SECTION 10.1. Notices. All notices, demands, requests, consents,
approvals or other communications required or permitted to be given hereunder or
which are given with respect to this Agreement shall be in writing and shall be
personally served or deposited in the mail, registered or certified, return
receipt requested, postage prepaid, or delivered by reputable air courier
service with charges prepaid, or transmitted by hand delivery, telegram, telex
or facsimile, addressed as set forth below, or to such other address as such
party shall have specified most recently by written notice:
If to the Company, to:
ASM International N.V.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attn: Rinse de Jong
Tel: (▇▇) ▇▇-▇▇▇-▇▇▇▇
Fax: (▇▇) ▇▇-▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Investor, to
Canadian Imperial Holdings Inc.
C/o CIBC World Markets Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇
▇▇
▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Subject to Section 2.3(c), notice shall be deemed given on the date of
service or transmission if personally served or transmitted by telegram, telex
or facsimile during normal business hours of the recipient. Notice otherwise
sent as provided herein shall be deemed given on the third (3rd) business day
following the date mailed or on the second business day following the date of
deposit for delivery of such notice with a reputable air courier service.
SECTION 10.2. Costs and Expenses.
(a) Out-of-pocket Costs. The Company shall be responsible for the
Investor's reasonable out-of-pocket costs and expenses, including fees and
expenses of its legal counsel, in connection with the performance of its
obligations hereunder up to a maximum amount of $70,000. The Company agrees to
pay the Investor the amounts due under this clause no later than the Agreement
Date.
(b) Commitment Fee. The Company shall pay to the investor a fee of
$1,250,000 on the date of the execution of this Agreement, provided, however,
that if prior to the ninetieth (90th) day following the execution of this
Agreement, this Agreement shall have been terminated and the Loan Amount shall
have been zero, the Investor shall repay to the Company the sum of $400,000.
SECTION 10.3. Right of First Refusal. In consideration for the Investor
to engage in the transactions contemplated by this Agreement, the Company hereby
grants to CIBC World Markets, an Affiliate of the Investor, a right of first
refusal to lead any public or private financing transaction for as long as the
Loan Amount shall exceed $5,000,000. CIBC World Markets shall have the right to
assign this right of first refusal to any of its Affiliates, subject to the
prior consent of the Company, which consent shall not be unreasonably withheld.
This right of first refusal shall not (and shall not be construed so as to)
limit the right of the Investor, CIBC World Markets, or any of their respective
Affiliates to exercise any other right of refusal granted to such entities by
the Company.
SECTION 10.4. Indemnification.
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(a) Indemnification of Investor. The Company agrees to indemnify and
hold harmless the Investor and each person, if any, who controls the Investor
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act as follows:
(i) against any and all loss, liability, claim,
damage and reasonable expense whatsoever, as incurred, arising out of any untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto) or the Prospectus, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statement therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and reasonable expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, based upon any such untrue
statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 10.3(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all reasonable expenses
whatsoever, as incurred (including the fees and disbursements of counsel),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened in writing, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above, provided, however, that no indemnity obligation of the Company shall not
apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Investor expressly for use in the Revised
Statement (or any amendment thereto), including the Prospectus (or any amendment
or supplement thereto).
(b) Indemnification of Company. The Investor agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense described in
the indemnity contained in clause (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Prospectus (or any amendment or supplement thereto), in reliance
upon and in conformity with information furnished to the Company by or on behalf
of the Investor expressly for use in the Registration Statement (or any
amendment or supplement thereto) or the Prospectus.
(c) Action against Parties, Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced
31
35
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder, in any case, to the extent it is not prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. In case any such
action is brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice delivered
to the indemnified party reasonably promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its own counsel in any such case but the reasonable fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying party in connection with the defense of such action
at the expense of the indemnifying party, (ii) the indemnifying party shall not
have employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there are
fundamental defenses available to it or them which are inconsistent with those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified parties), in any of which events such
reasonable fees and expenses of one additional counsel shall be borne by the
indemnifying party. In no event shall the indemnifying party be liable for fees
and expenses of more than one counsel (in addition to one local counsel)
separate from its own counsel for the indemnified parties in connection with any
one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 10.4 or
Section 10.5 hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each such nonconsenting indemnified party
from all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any such nonconsenting
indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for the fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 10.4(a)(ii) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
32
36
SECTION 10.5. Contribution. If the indemnification provided for in
Section 10.4 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses to the extent provided for herein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as incurred (a)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Investor on the other hand from the
offering of the Common Stock pursuant to this Agreement or (b) if the allocation
provided by clause (a) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(a) above but also the relative fault of the Company on the one hand and of the
Investor on the other hand and in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Investor on the other hand in connection with the offering of the Common Stock
pursuant to this Agreement shall be deemed to be in the same respective portions
as the total proceeds from the offering of the Common Stock pursuant to this
Agreement received by the Company from the Investor, on the one hand, and the
total profits received by the Investor upon the sale of such Common Stock
issuable hereunder, on the other hand bear to the aggregate public offering
price of the Common Stock.
The relative fault of the Company on the one hand and the Investor on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Investor and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Investor agree that it would not be just and
equitable if contribution pursuant to this Section 10.5 were determined on a
pro-rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 10.5.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 10.5
shall be deemed to include any reasonable legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 10.5, the Investor shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Common Stock purchased by it and resold to the public
exceeds the amount of any damages which the Investor has otherwise been required
to pay by reason of any such untrue or alleged untrue statement or omission or
alleged omission.
33
37
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 10.5, each person, if any, who controls
the Investor within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as such
Investor, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company.
SECTION 10.6. General Indemnification. Each party shall indemnify the
other against any material loss, cost or damages (including reasonable
attorney's fees and expenses) incurred as a result of such party's breach of any
representation, warranty, covenant or agreement in this Agreement.
SECTION 10.7. Indemnification of Accountant. The Investor hereby agrees
to hold harmless the Company's independent auditors from any liability that may
arise out of the delivery of an "agreed upon procedures" letter pursuant to
Section 3.3(b)(ii) hereof.
XI. MISCELLANEOUS
SECTION 11.1. Counterparts. This Agreement may be executed in any
number of counterparts, all of which together shall constitute one instrument.
SECTION 11.2. Survival; Severability. The representations, warranties,
covenants and agreements of the parties hereto shall survive each Closing
hereunder. The indemnity and contribution agreements contained in Sections 11.3
and 11.4 hereof shall survive and remain operative and in full force and effect
regardless of (i) any termination of this Agreement or of the Commitment Period,
(ii) any investigation made by or on behalf of any indemnified party or by or on
behalf of the Company, and (iii) the consummation of the sale or successive
resales of the Common Stock. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that such severability shall be ineffective if
it materially changes the economic benefit of this Agreement to any party.
SECTION 11.3. Title and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
SECTION 11.4. Effectiveness of the Agreement. This Agreement shall be
effective as of the Effective Date.
34
38
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date hereof.
ASM INTERNATIONAL N.V. CANADIAN IMPERIAL HOLDINGS INC.
By: By:
-------------------- ---------------------------
Name: Name:
Title: Title:
39
EXHIBIT A
[LETTERHEAD OF U.S. COUNSEL TO THE COMPANY]
[Date]
Canadian Imperial Holdings Inc.
C/o CIBC World Markets Corp.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ASM International N.V.
Ladies and Gentlemen:
We have acted as U.S. counsel for ASM International N.V., a
company organized under the laws of the Kingdom of the Netherlands (the
"Company"), in connection with the preparation and filing with the U.S.
Securities and Exchange Commission (the "SEC") of a Registration Statement on
Form F-3 (as amended from time to time, the "Registration Statement"), relating
to the issuance from time to time of up to [ ] shares of the Company's common
stock, par value Nlg. 0.01 per share (the "Common Stock"), to you pursuant to
the terms of the Equity Line Financing Agreement (the "Financing Agreement") and
the Registration Rights Agreement (the "Rights Agreement"), each dated as of
July 6, 2000, between you and the Company. This opinion is being delivered to
you pursuant to Section 3.2(h)[(i)-(v)](1) of the Financing Agreement.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Financing Agreement.
In rendering the opinions expressed below, we
examined originals, or copies certified or otherwise identified to our
satisfaction, of such documents, corporate records and other
instruments as we have deemed necessary or appropriate, including the
Financing Agreement, the Rights Agreement and the Registration
Statement.
Based on the foregoing, we are of the opinion that:
1. The Registration Statement has been declared effective by
the SEC, and, as of the date hereof, no stop order or restraining order has been
issued in connection with the Registration Statement, no withdrawal or
suspension of the effectiveness of the Registration Statement has occurred and
is continuing, and, to our knowledge, no investigation, proceeding or litigation
has been commenced or threatened before the SEC or any other agency of the
United States with respect to the making or consummation of the transactions
contemplated by the Registration Statement, the Financing Agreement and the
Registration Rights Agreement.
--------
(1) Select applicable provision.
40
2. [The Common Stock, when issued and delivered in accordance
with the terms of the Financing Agreement, will be duly authorized,
validly issued, fully paid and non-assessable .](2)
3. [The Common Stock subject to the Company Put
Notice, dated _________, a copy of which is attached hereto,
when issued and delivered in accordance with the terms of the
Financing Agreement, will be duly authorized, validly issued,
fully paid and non-assessable.](3)
4. [The Common Stock subject to the Investor Call
Notice, dated _________, a copy of which is attached hereto,
when issued and delivered in accordance with the terms of the
Financing Agreement, will be duly authorized, validly issued,
fully paid and non-assessable.](4)
We have acted as U.S. counsel to the Company in connection
with the execution and delivery of the Financing Agreement and the Rights
Agreement and the preparation and filing of the Registration Statement. In the
course of this, we have participated in certain teleconferences with
representatives of the Company and you in which conferences the contents of the
Registration Statement and the related prospectus were discussed. Although we
have not independently checked the accuracy or completeness of, or otherwise
verified any statement of fact contained in, the Registration Statement
(including the Prospectus and any document incorporated by reference therein, in
the course of foregoing representation no facts have come to the attention of
the attorneys in our firm who participated in such representation which have
caused us to believe that the Registration Statement (including the Prospectus
and any document incorporated by reference therein, but excluding any financial
statements contained or incorporated by reference therein) contains any untrue
statement of material fact or omits a material fact required to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading.
[To the extent the law of the Kingdom of the Netherlands may
be relevant to the opinions expressed in paragraph [3, 4 or 5], we have, without
having made any independent investigation with respect thereto, relied upon and
assumed the correctness of the opinion of [name of Netherlands counsel], a copy
of which is attached hereto].(5)
At the request of the Company, this opinion is being delivered
to you pursuant to Section 3.2(h)[(i)-(v)](6) of the Financing Agreement and may
not be relied upon by any Person for any purpose other than in connection with
the transactions contemplated by the Registration
--------
(2) Include if opinion is being delivered as a result of any of the
events set forth in Section 3.2(h)(i)-(iv) of the Financing Agreement.
(3) Include if opinion is being delivered pursuant to a Company Put
Notice under Section 3.2(h)(v) of the Financing Agreement.
(4) Include if opinion is being delivered pursuant to an Investor
Call Put Notice under Section 3.2(h)(v) of the Financing Agreement.
(5) Include if necessary to provide the opinions in paragraphs 2,3
or 4.
(6) Select applicable provision.
41
Statement, the Financing Agreement and the Registration Rights Agreement
without, in each instance, our prior written consent.
Very truly yours,
42
EXHIBIT B
43
DISCLOSURE SCHEDULE
44
SCHEDULE 5.2(b)
ASM International NV has issued a warrant to purchase 200,000 (two hundred
thousand) common shares with an initial exercise price of $ 9.81375 per share.
The warrants expire October 2, 2004. The (Supplemental) warrants have been
issued in conjunction with zero-coupon bonds and Common Stock Purchase Warrants
in October 1999. The bonds have since been redeemed with the proceeds of the
exercised Common Stock Purchase Warrants.
45
Schedule 5.3(a): Legal structure as at July 3, 2000
All Subsidiaries are 100% held, except where indicated otherwise*
Share capital
issued and
outstanding
-----------
(x 000)
ASM International N.V.
Bilthoven, the Netherlands NLG 445
ASM Netherlands Antilles N.V. USD 6
Curacao, Netherlands Antilles
ASM Pacific Technology Ltd (54.875%)
Hong Kong
see separate sheet
ASM America Inc (Delaware Corporation) USD 3
Phoenix, AZ, U.S.A.
ASM Pacific Assembly Products Inc USD 0
Phoenix, AZ, U.S.A.
ASM Japan KK JPY 2,900,000
Tokyo, Japan
ASM Microchemistry FIM 1,000
Espoo, Finland
ASM Belgium* (euro) 62.5
Leuven, Belgium
NanoPhotonics (24%) DEM ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇
ASM Europe BV NLG 25
Bilthoven, the Netherlands
ASM France SARL* FFR 19,000
Montpellier, France
ASM United Kingdom Sales BV* GBP 6
Wokingham, UK
ASM Germany Sales ▇▇* ▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇▇▇▇
ASM Wafer Process Equipment LTD* HKD 0
Hong Kong
ASM Far East Marketing Ltd* TWD 2,760
Taiwan
ASM Korea Ltd* WON 250,000
Seoul, Korea
ASM Wafer Processing Equipment Singapore Ltd* SGD 2
Singapore
46
Share capital
issued and
outstanding
-----------
(x 000)
ASM International N.V.
Bilthoven, the Netherlands
ASM Netherlands Antilles N.V.
Curacao 54.875%*
ASM Pacific Technology Ltd
Hong Kong HKD 38,000
ASM Asia Ltd* HKD 1
Hong Kong
ASM Assembly Automation Ltd HKD 1
Hong Kong
ASM Assembly Materials Ltd HKD 10
Hong Kong
ASM Assembly Equipment Bangkok Ltd* Baht 7,000
Thailand
ASM Assembly Equipment (M) Sdn. Bnd* MYR 10
Thailand
ASM Assembly Equipment Trading* US$ 200
(Shanghai) Co Ltd, PRC
ASM Assembly Products B.V.* NLG 40
Bilthoven, the Netherlands
ASM Assembly Technology Co, Ltd* JPY 10,000
Tokyo, Japan
ASM Pacific International Marketing Ltd* HKD 100
Cayman Islands
ASM Pacific (Bermuda) Ltd* USD 120
Cayman Islands
ASM Pacific Investments Ltd.* HKD 2
Hong Kong
ASM Pacific KOR Ltd* HKD 500,000
Hong Kong
ASM Pacific STJ Ltd* HKD 1
Guernsey, Channel Islands
ASM Technology Singapore Pte, Ltd SGD 10,000
Singapore
ASM Technology (M) Sdn. Bhd. MYR 2
Malaysia
Capital Equipment Distribution Ltd* HKD 1
Guernsey, Channel Islands
Shenzhen ASM Micro Electronic see Note 1
Technology Co. Ltd (**)
Shenzhen, People's Republic of China
Shenzhen ASM Precision see Note 2
Machinery Manufactory Ltd (**)
Shenzhen, People's Republic of China
47
(**) Annual Report ASM Pacific Technology Ltd, page 49, note 1 + note 2
13 INTEREST IN SUBSIDIARIES
Note 1: Under a joint venture agreement, the Group has contributed 100% of the
registered capital of HK$155,000,000 in Shenzhen ASM Micro Electronic Technology
Co., Limited ("MET"), a co-operative joint venture company established in the
People's Republic of China ("PRC") with a term of 10 years commencing from
October 1994. At December 31, 1999, the Group has paid up approximately
HK$123,119,000 as registered capital of MET. The Group is to bear the entire
risk and liabilities of MET and, other than a fixed annual amount attributable
to assets contributed by the PRC joint venture partner, is entitled to the
entire profit or loss of MET. On cessation of the joint venture company, the
Group will be entitled to all assets other than those contributed by the PRC
joint venture partner and those irremovable building improvements.
Note 2: Under a joint venture agreement, the Group has contributed 88% of the
registered capital of HK$45,224,000 in Shenzhen ASM Precision Machinery
Manufactory Limited, an equity joint venture company in the PRC with a term of
10 years commencing from October 1990. However, under the joint venture
agreement, the Group will be entitled to 100% of the joint venture company's
profit after deducting a fixed annual amount attributable to assets contributed
by the PRC joint venture partner. On cessation of the joint venture company, the
Group will be entitled to all assets other than those contributed by the PRC
joint venture partner and those irremovable building improvements.
NOTE
The subsidiaries marked with * represent subsidiaries that do not own material
assets or are not subject to material liabilities. In addition, 5 dormant
companies have been omitted from the above structure, as follows:
* Hamilcar B.V.
Rembrandt Lease & Finance B.V.
CVTR Development B.V.
Ingebel B.V.
ASM Ion Implant B.V.
July 3, 2000/ RdJ
48
SCHEDULE 5.3(b)
ASM Pacific Technology Ltd operates an Employee Share Incentive Scheme. A new
Scheme was approved by the Extraordinary General Meeting of Shareholders on June
25, 1999 for a term of 10 years under which 5% of the issued share capital can
be subscribed for or purchased under Directives of the Trustees of the Scheme.