Equity Interest Purchase Agreement dated as of September 20, 2021 by and between Brooks Automation, Inc. and Altar BidCo, Inc
EQUITY INTEREST PURCHASE AGREEMENT
by and between
BROOKS AUTOMATION, INC.
ALTAR BIDCO, INC.
Dated as of September 20, 2021
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND DOCUMENTARY CONVENTIONS
Exhibits and Schedules; Interpretation
ARTICLE II PURCHASE AND SALE OF EQUITY INTERESTS
Sale and Purchase of Equity Interests
Purchase Price; Delivery of Funds
Payment of Purchase Price Adjustment
ARTICLE III CLOSING
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER
No Undisclosed Liabilities
Title to Assets; Sufficiency of Assets; Real Property
Employee Benefit Matters
Information Technology and Data Matters
Absence of Changes or Events
Compliance with Laws
International Trade and Anti-Corruption
Customers and Suppliers
No Other Representations or Warranties
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PURCHASER
No Reliance on Other Representations and Warranties
No Other Representations or Warranties
ARTICLE VI AGREEMENTS
Conduct of Business
Reasonable Best Efforts
Other Transaction Agreements
Representations and Warranties Insurance
Change of Name
Termination of Intercompany Accounts and Arrangements
Confidentiality Obligation of Seller
Confidentiality Obligation of Purchaser
Minimum Foreign Jurisdiction Cash
Safari Business Separation
Calculation of Specified Unfunded Employee Amount.
ARTICLE VII EMPLOYEE MATTERS
ARTICLE VIII TAX MATTERS
Allocation of Purchase Price
Filing of Returns; Payment of Taxes; Tax Contests
Tax Sharing Agreement
Indemnity for German and Swiss Tax Issues
ARTICLE IX CONDITIONS TO PURCHASER’S OBLIGATIONS FOR THE CLOSING
Representations and Warranties; Covenants and Agreements
Consents, Approvals, and Injunctions
ARTICLE X CONDITIONS TO SELLER’S OBLIGATIONS FOR THE CLOSING
Representations and Warranties; Covenants and Agreements
Consents, Approvals and Injunctions
ARTICLE XI NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
ARTICLE XII GENERAL MATTERS
No Third-Party Beneficiaries
Modification and Waivers
Consent to Jurisdiction
Waiver of Jury Trial
Schedule 1.1(a) – Excluded Employees
Schedule 1.1(b) – Covered Territories
Schedule 1.1(c) – Knowledge of Seller
Schedule 1.1(d) – Transferred Subsidiaries
Schedule 3.1(c)(iii) – Release from Indebtedness
Schedule 4.3 – No Conflict
Schedule 4.4 – Governmental Consents
Schedule 4.5(a) – Financial Statements
Schedule 4.7(a) – Title to Assets
Schedule 4.7(b) – Transferred Subsidiaries Equity Interests
Schedule 4.7(d)(i) – Owned Real Property
Schedule 4.7(d)(ii) – Lease of Owned Real Property
Schedule 4.7(e) – Leased Real Property
Schedule 4.8 – Litigation
Schedule 4.9(a) – Contracts
Schedule 4.10(c) – Tax Matters
Schedule 4.11 – Employee Matters
Schedule 4.12(a) – Employee Benefit Matters
Schedule 4.13(b) – Intellectual Property
Schedule 4.15 – Absence of Certain Changes or Events
Schedule 4.16 – Compliance with Laws
Schedule 4.20 – Insurance
Schedule 4.21 – Customers and Suppliers
Schedule 4.22 – Bank Accounts
Schedule 4.23 – Product Warranties
Schedule 4.24 – Product Liabilities
Schedule 4.25 – Indebtedness
Schedule 4.26 – Affiliate Transactions
Schedule 4.27 – Shared Contracts
Schedule 6.1(q) – New Hires
Schedule 6.13 – Termination of Intercompany Accounts and Arrangements
Schedule 6.16 – Minimum Foreign Jurisdiction Cash
Schedule 6.17 – Safari Business Separation
Schedule 7.1(b)(ii) – Ordinary Course Promotions
Schedule 8.1 – Allocation Schedule
Exhibit A – Form of Limited Guaranty
Exhibit B – Accounting Principles
Exhibit C – Form of Real Estate Leases
Exhibit D – Form of Transition Services Agreement
Exhibit E – Form of Transitional Trademark License Agreement
EQUITY INTEREST PURCHASE AGREEMENT
EQUITY INTEREST PURCHASE AGREEMENT dated as of September 20, 2021 (this “Agreement”), by and between Brooks Automation, Inc., a Delaware corporation (“Seller”), and Altar BidCo, Inc., a Delaware corporation (“Purchaser”).
W I T N E S S E T H:
WHEREAS, Seller owns all of the outstanding Equity Interests (the “Units”) of Brooks Automation Holding, LLC, a Delaware limited liability company (the “Company”);
WHEREAS, as of the date hereof, Seller and certain of its Subsidiaries operate the Safari Business;
WHEREAS, Seller, the Company and Brooks Automation US, LLC, a Delaware limited liability company, wholly owned by the Company (“OpCo”), are parties to an Asset Contribution Agreement dated September 20, 2021 (the “Asset Contribution Agreement”) pursuant to which the Contributed Assets (and Assumed Liabilities) will be transferred and assigned by Seller to, and accepted and assumed by, the Company and then will be transferred and assigned by the Company to, and accepted and assumed by, OpCo, in each case, effective October 1, 2021 (the “Asset Contribution”);
WHEREAS, Seller and the Company are parties to an Equity Contribution Agreement dated September 20, 2021 (the “Equity Contribution Agreement”) pursuant to which Seller will transfer and assign all outstanding Equity Interests of the Transferred Subsidiaries owned directly by Seller to the Company prior to the Closing (the “Equity Contribution,” and together with the Asset Contribution, the “Pre-Closing Restructuring”);
WHEREAS, Seller desires to sell the Units and to cause German Seller to sell the Germany Holdings Equity Interests, and Purchaser desires to (i) purchase the Units and (ii) purchase, or cause a wholly owned subsidiary of Purchaser (such subsidiary, “German Purchaser”) to purchase, the Germany Holdings Equity Interests, subject to the terms and conditions set forth herein;
WHEREAS, it is the intention of the parties hereto that upon the consummation of the purchase and sale of the Units and Germany Holdings Equity Interests pursuant to this Agreement, Purchaser shall own, either directly or indirectly though German Purchaser, as applicable, all of the outstanding Equity Interests of the Company and Germany Holdings;
WHEREAS, Purchaser, Seller and the Company desire to make certain representations, warranties, covenants and agreements in connection with the transactions contemplated by this Agreement, and to prescribe certain conditions thereto, in each case, as set forth herein;
WHEREAS, as a condition and material inducement to the Company’s execution and delivery of this Agreement, each of Thomas H. Lee Equity Fund IX, L.P., Thomas H. Lee Parallel Fund IX, L.P., THL Fund IX Coinvestment Partners, L.P., THL Automation Fund, L.P.,
THL Automation Parallel Fund, L.P., THL Automation Executive Fund, L.P., THL Automation Coinvestment Partners, L.P., and THL Fund IX Investors (Altar), L.P. (each, a “Guarantor”), is executing and delivering to Seller, simultaneously with the execution and delivery of this Agreement, a limited guaranty in the form attached hereto as Exhibit A (the “Limited Guaranty”), pursuant to which, and subject to the terms and conditions thereof, each Guarantor has guaranteed a portion of certain obligations of Purchaser hereunder; and
WHEREAS, Seller has received an equity commitment from each Guarantor under the Equity Commitment Letter, and each Guarantor has sufficient assets to carry out its respective obligations under the Equity Commitment Letter to which it is a named party.
NOW, THEREFORE, in consideration of the premises set forth above and the respective covenants, agreements, representations and warranties hereinafter set forth, the Parties hereby agree as follows:
Definitions and Documentary Conventions
“Accounting Principles” shall mean the methodology of calculating Net Working Capital set forth on Exhibit B.
“Accounting Referee” shall have the meaning set forth in Section 2.4.
“Acquisition Agreements” shall mean this Agreement, the Asset Contribution Agreement (including the Patent Assignment Agreements, the Trademark Assignment Agreements and the Bill of Sale and Assignment and Assumption Agreements referred to therein) and the Equity Contribution Agreement (including the applicable Transfer Agreements referred to therein).
“Acquisition Proposal” means, other than the transactions contemplated by this Agreement, any agreement, offer, proposal or inquiry (whether written or oral) relating to, or any Person’s indication of interest in, one or more transactions involving the sale, license, disposition or acquisition of all or a material portion of the Equity Interests of the Company Group Entities, the Contributed Assets (or any other assets of the Company Group Entities) or the Safari Business, however structured.
“Affiliate” shall mean, as to any Person, any other Person that is controlling, controlled by or under common control with such Person, except to the extent expressly modified herein. For purposes of this definition, “control” (including the terms “controlling,” “controlled by” and “under common control with”) shall mean the power to direct or cause the direction of the management, policies or affairs of a Person by reason of ownership of voting stock, contract or otherwise.
“Aggregate International Cash Shortfall Amount” shall have the meaning set forth in Section 6.16.
“Agreement” shall have the meaning set forth in the preamble.
“Allocation Schedule” shall have the meaning set forth in Section 8.1.
“Anti-Corruption Laws” means all U.S. and non-U.S. laws, statutes, regulations and orders relating to the prevention of corruption, money laundering and bribery, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the UK Bribery Act of 2010.
“Asset Contribution” has the meaning set forth in the Recitals.
“Asset Contribution Agreement” has the meaning set forth in the Recitals.
“Assumed Liabilities” shall have the meaning set forth in the Asset Contribution Agreement.
“Audited Financial Statements” shall have the meaning set forth in Section 4.5.
“Business Day” shall mean any day other than (a) a Saturday or Sunday and (b) any day on which commercial banks in New York, New York, United States of America are authorized or required by Governmental Rule to close.
“Calculation Time” means 12:01 a.m. Eastern Time on the Closing Date.
“CAR” shall have the meaning set forth in Section 6.1(l).
“CARES Act” means (i) the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136) and any administrative or other guidance published with respect thereto by any Governmental Authority (including IRS Notices 2020-22 and 2020-65), or any other Governmental Rule or executive order or executive memorandum (including the Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, dated August 8, 2020 (the “Payroll Tax Executive Order”)) intended to address the consequences of COVID-19 (in each case, including any comparable provisions of state, local or non-U.S. Governmental Rule and including any related or similar orders or declarations from any Governmental Authority) and (ii) any extension of, amendment, supplement, correction, revision or similar treatment to any provision of the CARES Act contained in the Consolidated Appropriations Act, 2021, H.R. 133.
“Cash” means the cash and cash equivalents of only OpCo and the Company (and not, for the avoidance of doubt, any other Company Group Entity), including checks, wire transfers and drafts received but not cleared by OpCo and the Company and net of any outstanding checks, wire transfers and drafts sent but not cleared by OpCo and the Company, in each case, provided that any corresponding adjustments to accounts receivable or accounts payable, as applicable, have been reflected in Net Working Capital, and net of any bank overdrafts of OpCo and the Company. Notwithstanding the foregoing or anything herein to the contrary, Cash shall, in all cases, exclude (i) any cash or cash equivalents in reserve or escrow accounts, restricted cash, custodial cash, cash and cash equivalents held for others and cash and cash equivalents otherwise subject to any legal or contractual restriction on the ability to freely transfer or use such cash or cash equivalents for any lawful purpose of the Company Group Entities, and (ii) any cash or cash equivalents used in, or that otherwise inures to the benefit of Seller or any of its Affiliates (other than the Company
Group Entities) as a result of any violation of the last sentence of Section 6.1. Cash may be a positive or negative amount and shall in all cases be calculated in accordance with the Accounting Principles.
“Closing” shall have the meaning set forth in Section 3.1(a).
“Closing Cash” shall mean the aggregate amount of Cash of OpCo and the Company (and not, for the avoidance of doubt, any other Company Group Entity) as of the Calculation Time; provided that in no event shall Closing Cash exceed $10,000,000 (the “US Cash Cap”).
“Closing Date” shall have the meaning set forth in Section 3.1(a).
“Closing Indebtedness” shall mean Indebtedness of the Company Group Entities as of immediately prior to the Closing.
“Closing Net Working Capital” shall mean Net Working Capital of the Company Group Entities as of the Calculation Time.
“Closing Statement” shall have the meaning set forth in Section 2.4.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Commitment Letters” shall have the meaning set forth in Section 5.7(b).
“Company” has the meaning set forth in the Recitals.
“Company Group Entities” means, collectively, the Company, OpCo, Brooks Automation Italy s.r.l. and the Transferred Subsidiaries.
“Comparable Position” shall mean, with respect to any Covered Employee, a position that is comparable to the type of position held by such Covered Employee as of immediately prior to the Closing Date, at a geographic location that is within the greater of (i) 50 straight-line miles of the Covered Employee’s home and (ii) the distance between the Covered Employee’s home and place of work as of immediately prior to the Closing Date or, in the case of a Covered Employee who is employed without a fixed office provided by Seller as of immediately prior to the Closing Date, a position that enables such employee to continue to maintain such arrangement.
“Computer Systems” means the separate Software, computer firmware, computer hardware, electronic data processing, telecommunications networks, network equipment, interfaces, platforms, peripherals, computer systems, and information contained therein or transmitted thereby, including any outsourced systems and processes, owned, leased, licensed, or to be owned or received as a service by the Safari Business as established for the Safari Business.
“Confidentiality Agreement” shall mean the Confidentiality Non-Disclosure Agreement between Seller and Thomas H. Lee Partners, L.P., dated January 15, 2021, as amended on August 25, 2021.
“Contributed Assets” shall have the meaning set forth in the Asset Contribution Agreement.
“Contributed Contracts” shall have the meaning set forth in the Asset Contribution Agreement.
“Contributed IP” shall have the meaning set forth in the Asset Contribution Agreement.
“Contributed Real Property” shall have the meaning set forth in the Asset Contribution Agreement.
“Contributed Tangible Personal Property” shall have the meaning set forth in the Asset Contribution Agreement.
“Covered Employees” shall mean those employees of Seller and its Subsidiaries who provide services primarily to the Safari Business and those listed on Schedule 4.11(a)(i); provided, however, that unless otherwise required under applicable law, “Covered Employees” shall exclude (A) all former employees, (B) all individuals who, as of the Closing Date, are receiving short-term or long-term disability benefits under the disability plans of Seller or any of its Subsidiaries; provided, however, any individual who returns to employment from a short-term disability leave within six (6) months following the Closing Date will become a Covered Employee upon the individual’s return, and (C) any individual listed on Schedule 1.1(a).
“Covered Territories” shall mean the territories set forth on Schedule 1.1(b).
“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions thereof or related or associate epidemics, pandemic or disease outbreaks.
“COVID-19 Actions” means any commercially reasonable actions taken by a Party or its Subsidiaries (after determination by such Party or its applicable Subsidiary that such actions are prudent) to the extent that such action would have been taken by a reasonable Person similarly situated as such Party and its Subsidiaries in connection with (a) mitigating the adverse effects occurring after the date hereof of events caused by COVID-19 or the public health emergency resulting therefrom (including as reasonably necessary to protect the health and safety of customers, suppliers, employees and other business relationships of such Person) or (b) ensuring compliance by such Person and its Subsidiaries and their respective directors, officers and employees with any COVID-19 Measures.
“COVID-19 Measures” means any quarantine, “shelter in place,” “stay at home,” social distancing, shut down, closure, sequester or any other similar Governmental Rule or other order, directive, restrictions, guidelines, responses or recommendations, by any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, or industry group in connection with or in response to COVID-19.
“Data Privacy Obligations” shall mean all of the following to the extent relating to Personal Information or data privacy, security or breach notification with respect to the Safari Business: (i) any applicable Governmental Rules, (ii) Seller’s policies and procedures relating to
the Safari Business; (iii) industry standards applicable to the Safari Business (including the Payment Card Industry Data Security Standard (PCI-DSS)); and (iv) contracts that are binding on the Safari Business.
“Debt Commitment Letter” shall have the meaning set forth in Section 5.7(a).
“Debt Financing” shall have the meaning set forth in Section 5.7(a).
“Debt Financing Fee Letter” shall have the meaning set forth in Section 5.7(c).
“Debt Financing Sources” shall mean the Persons that have committed to provide or arrange the Debt Financing, the Debt Commitment Letter or other debt financings in connection with the transactions contemplated hereby, including the parties to any commitment letters, engagement letters, joinder agreements, indentures or credit agreements entered pursuant thereto or relating thereto, together with their respective Affiliates, and their and their respective Affiliates’ officers, directors, employees, agents and representatives and their respective successors and assigns.
“Deferred Compensation Plan” shall mean the Brooks Automation, Inc. Amended and Restated Deferred Compensation Plan.
“Definitive Agreements” shall have the meaning set forth in Section 6.6(a).
“Disclosure Letter” shall have the meaning set forth in Article IV.
“Dispute Notice” shall have the meaning set forth in Section 2.4.
“DOJ” shall mean the United States Department of Justice.
“Employment Costs” shall mean any and all employment and employee benefits-related liabilities, obligations, claims, losses, costs and expenses, including, subject to the terms of this Agreement, Severance Obligations, and the employer portion of any employment, payroll or similar Taxes payable with respect thereto.
“End Date” shall have the meaning set forth in Section 12.2(a)(ii).
“Environmental Laws” shall mean all Governmental Rules concerning pollution, public or worker health or safety, or the protection of the environment.
“Environmental Permits” shall mean any Permits that are required pursuant to Environmental Laws.
“Equity Commitment Letter” shall have the meaning set forth in Section 5.7(b).
“Equity Contribution” has the meaning set forth in the Recitals.
“Equity Contribution Agreement” has the meaning set forth in the Recitals.
“Equity Financing” shall have the meaning set forth in Section 5.7(b)
“Equity Interest” means any type of equity, or equity-based equity ownership in an entity, including partnership interests in a general partnership or limited partnership, membership interests in a limited liability company, stock or similar security in a corporation or the comparable instruments for any other entity or any other interest entitling the holder thereof to convert or exercise into or exchange for, or carry rights to purchase any of the foregoing (including any subscriptions, calls, warrants, options or any other rights or commitments of any kind or character relating to, or entitling any Person to purchase or otherwise acquire any of the foregoing), or any other interest classified as an equity security of a Person or any equity appreciation, phantom equity, profit participation or other equity-linked rights.
“Equity Investors” shall have the meaning set forth in Section 5.7(b).
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any Person that, together with any other Person, is, or was at any relevant time, treated as a single employer under Section 414(b), (c), (m) or (o) of the Code and the regulations promulgated under those sections.
“Estimated Closing Cash” shall have the meaning set forth in Section 2.2(a).
“Estimated Closing Indebtedness” shall have the meaning set forth in Section 2.2(a).
“Estimated Closing Net Working Capital” shall have the meaning set forth in Section 2.2(a).
“Estimated Closing Statement” shall have the meaning set forth in Section 2.2(a).
“Ex-Im Laws” means all U.S. and non-U.S. laws, statutes, regulations, and orders relating to export, reexport, transfer, and import controls, including the Export Administration Regulations, the customs and import Governmental Rules administered by U.S. Customs and Border Protection, and the EU Dual Use Regulation.
“Excluded Assets” shall have the meaning set forth in the Asset Contribution Agreement.
“Excluded Liabilities” shall have the meaning set forth in the Asset Contribution Agreement.
“Families First Act” means the Families First Coronavirus Response Act, (Pub. L. No. 116-127), as amended, and the guidance, rules and regulations promulgated thereunder.
“Financial Statements” shall have the meaning set forth in Section 4.5.
“Financing” shall have the meaning set forth in Section 5.7(b).
“Fraud” means a willful or knowing misrepresentation of material facts by Seller in Article IV (including the Disclosure Letter) or Purchaser in Article V (including the disclosure schedules related thereto), and upon which such other Party has actually and reasonably relied which constitutes intentional fraud pursuant to Delaware Governmental Rules. “Fraud” specifically excludes fraud based on a theory of recklessness or any form of constructive or equitable fraud.
“FTC” shall mean the United States Federal Trade Commission.
“GAAP” shall mean generally accepted accounting principles in the United States.
“German Purchaser” has the meaning set forth in the Recitals.
“German Seller” means Brooks Life Science (Germany) GmbH.
“German Tax Issue” means any and all Taxes owed by Brooks Automation (Germany) GmbH for a Pre-Closing Tax Period in connection with tax deductions claimed relating to inventory reserves, or other adjustments relating to the German tax audit involving Brooks Automation (Germany) GmbH for fiscal years 2015 and 2016.
“Germany Holdings” means Brooks Automation (Germany) GmbH.
“Governmental Authority” shall mean any national, federal, provincial, territorial, municipal, state or local court, governmental or administrative agency or commission or other governmental agency, authority, tribunal, board, bureau, instrumentality, regulatory body or self-regulatory body, domestic or foreign, or any arbitral body (public or private).
“Governmental Rule” shall mean any act, code, constitution, common law, statute, law, treaty, rule, ordinance, regulation, directive, determination or order enacted, promulgated or issued by any Governmental Authority or any judgment, decree, injunction, writ, order or like action of any Governmental Authority.
“Guarantor” has the meaning set forth in the Recitals.
“Hazardous Materials” means all substances, materials, chemicals, contaminants, pollutants or wastes regulated, or for which liability or standards of conduct may be imposed, under any Environmental Law, including, petroleum or petroleum by-products, asbestos or asbestos-containing materials, lead, polychlorinated biphenyls, or per- and polyfluoroalkyl substances.
“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“Inactive Covered Employee” shall have the meaning set forth in Section 7.1(b)(i).
“Indebtedness” means, with respect to any Person as of any date of determination, without duplication: (i) all obligations of such Person for borrowed money or in respect of loans,
lines of credit or advances; (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments or debt securities; (iii) all obligations in respect of letters of credit and bankers’ acceptances issued for the account of such Person, in each case solely to the extent drawn upon; (iv) all obligations arising from cash/book overdrafts; (v) all obligations arising from deferred compensation arrangements (including the Deferred Compensation Plan); (vi) all obligations of such Person secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person; (vii) all capital or finance lease obligations, in each case, as determined in accordance with GAAP or as classified in the Financial Statements; (viii) all obligations for the deferred purchase price of property or services (including any “earn-out” payments or similar payments or obligations at the maximum amount payable in respect thereof) with respect to which a Person is liable, contingently or otherwise, as obligor or otherwise (other than trade payables or similar accruals incurred in the Ordinary Course of Business which are not past due to the extent included in Net Working Capital); (ix) all obligations under conditional sale or other title retention agreements relating to property or assets purchased by such Person; (x) all obligations (determined on the basis of actual, not notional, obligations) with respect to interest rate protection agreements, interest rate swap agreements, foreign currency exchange agreements, or other interest or exchange rate hedging agreements or arrangements; (xi) any liability or obligation in respect of any unfunded or underfunded defined benefit pension, gratuity, termination indemnity, statutory severance or any other similar plans or arrangements associated with employees of the Safari Business; provided that, such liability or obligation in respect of the foregoing items in Taiwan, Japan, Switzerland, South Korea, Germany and Israel shall be determined in accordance with Section 6.19 (such aggregate amount as determined, the “Specified Unfunded Employee Amount”), (xii) all “applicable employment taxes” (as defined in Section 2302(d)(1) of the CARES Act) that such Person has elected to defer pursuant to Section 2303 of the CARES Act and all Taxes (including withholding taxes) deferred pursuant to IRS Notice 2020-65 or any related or similar order or declaration from any Governmental Authority (including the Payroll Tax Executive Order), in each case to the extent such deferred Taxes have not yet been remitted to the relevant Governmental Authority, (xiii) the Pre-Closing Tax Liabilities Amount, (xiv) all guaranties of such Person in connection with any of the foregoing; (xv) the Aggregate International Cash Shortfall Amount, (xvi) any declared but unpaid dividends or distributions of such Person except to the extent payable to a Company Group Entity, and (xvii) all fees, accrued and unpaid interest, premiums or penalties related to any of the foregoing, including such liabilities payable as a result of the transactions contemplated by this Agreement; provided that “Indebtedness” shall not include real property or other operating lease obligations required to be reported as liabilities as a result of FASB issued Accounting Standards Update No. 2016-02, Leases (Topic 842).
“Independent Firm” shall have the meaning set forth in Section 8.1.
“Initial Purchase Price” means an amount equal to the sum of (a) $3,000,000,000, plus (b) the amount (if any) by which Estimated Closing Cash is greater than the Minimum United States Cash Level, minus (c) the amount (if any) by which Estimated Closing Cash is less than the Minimum United States Cash Level, plus (d) the Net Working Capital Surplus, if any, minus (e) the Net Working Capital Deficit, if any, minus (f) the Estimated Closing Indebtedness.
“Intellectual Property Rights” means all right, title and interest in or to any intellectual property right, whether protected, created or arising under the laws of the United States
or any other jurisdiction, including: (i) names and marks, including registered and unregistered trademarks, trade names, service marks, certification marks, collective marks or any other type of mark, trade dress, slogan, symbol, logo, brand name, product name, corporate name, legal entity name, domain name or social media account name and applications therefor, together with the goodwill associated therewith; (ii) patents, patent applications, including any provisional, utility, continuation, continuation-in-part or divisional applications filed in the United States or any other jurisdiction, and all reissues, divisionals, provisionals, revisions, renewals, extensions, continuations, continuations-in-part and all reexamination certificates issuing therefrom; (iii) ownership rights, including all related copyright registrations (other than any moral rights) to copyrightable works, including computer and electronic data processing programs and Software (including existing versions and that which presently is under development), documentation, software designs, technical and functional specifications, and mask works; (iv) Trade Secrets; and (v) all proceeds, causes of action, and rights of recovery and collection, and rights to sue and recover damages from, against third parties for past and future infringement, misappropriation, or other violation or impairment of any of the foregoing and all rights to collect royalties, fees, income and other payments and proceeds arising from any of the foregoing.
“Interest Rate” means a rate per annum equal to the prime rate as published in The Wall Street Journal on the date the applicable payment was required to be made (or if no quotation for such prime rate is available for such date, on the next preceding date for which such quotation is available) plus 350 basis points.
“Interim Balance Sheet Date” shall have the meaning set forth in Section 4.5(a).
“Interim Financial Statements” shall have the meaning set forth in Section 4.5.
“Knowledge of Seller” or words of similar import shall mean the actual knowledge after reasonable inquiry of any Person set forth on Schedule 1.1(b) to this Agreement. For purposes of this definition, reasonable inquiry means a reasonable inquiry of such individual’s direct reports with responsibility for the subject matter of the applicable representation and warranty, if any.
“Leased Real Property” shall mean each Safari Business Entity’s Leases pursuant to which such Safari Business Entity holds a leasehold or subleasehold estate in, or is granted the right to use or occupy, any land, buildings, structures, improvements, fixtures or other interest in real property which is primarily related to or primarily used in the Safari Business, including those Leases set forth on Schedule 4.7(e).
“Leases” shall mean each Safari Business Entity’s right, title and interest in all leases, subleases, licenses, concessions and other real estate agreements (written or oral).
“Legal Restraint” shall mean any temporary restraining order, preliminary or permanent injunction or other judgment, order, writ, decree, determination, ruling, assessment or award or other legal restraint or prohibition issued by any court of competent jurisdiction, Governmental Authority.
“Lenders” shall have the meaning set forth in Section 5.7(a).
“Licensed IP” shall mean the Parent Marks and Target Marks (as those terms are defined in the Transitional Trademark License Agreement) licensed to Seller by Purchaser pursuant to the Transitional Trademark License Agreement.
“Liens” shall mean pledges, claims, liens (statutory or otherwise), charges, encumbrances, easements, hypothecations, claims, restrictions, licenses, preferences, priorities, servitude covenants, options, rights of recovery, Legal Restraints, mortgages, deeds of trust, encroachments and security interests of any kind or nature whatsoever.
“Limited Guaranty” has the meaning set forth in the Recitals.
“Major Customers” shall have the meaning set forth in Section 4.21.
“Major Suppliers” shall have the meaning set forth in Section 4.21.
“Material Contracts” shall have the meaning set forth in Section 4.9.
“Minimum United States Cash Level” means $5,000,000.
“Net Working Capital” means the current assets of the Safari Business minus the current liabilities of the Safari Business, in each case (i) including or excluding, as applicable, the assets, liabilities or other items described in the Accounting Principles and (ii) otherwise determined in accordance with the Accounting Principles and, if applicable, the definitions set forth in this Agreement.
“Net Working Capital Deficit” means the amount by which the Closing Net Working Capital is less than the Net Working Capital Lower Target.
“Net Working Capital Lower Target” means $152,000,000.
“Net Working Capital Surplus” means the amount by which the Closing Net Working Capital is greater than the Net Working Capital Upper Target; provided that in no event shall the Net Working Capital Surplus exceed $10,000,000 for purposes of determining either the Initial Purchase Price or the Purchase Price.
“Net Working Capital Upper Target” means $168,000,000.
“Non-Recourse Parties” shall have the meaning set forth in Section 12.19.
“Non-Resident Capital Gain Tax” means any Taxes imposed, whether directly or indirectly, by a Governmental Authority of a jurisdiction on a non-resident of such jurisdiction (whether imposed by withholding or otherwise and whether calculated by reference to transfer price, net gain or otherwise) in connection with the sale or transfer of any of the Company Group Entities pursuant to this Agreement or the Pre-Closing Restructuring.
“Non-Solicitation Period” shall have the meaning set forth in Section 6.7(a)(i).
“Non-US Plan” shall have the meaning set forth in Section 4.12(b).
“Noticed Pre-Closing Claim” shall have the meaning set forth in Section 6.11.
“OpCo” has the meaning set forth in the Recitals.
“Operating Agreements” shall mean the Transition Services Agreement, the Transitional Trademark License Agreement and the Real Property Lease Agreements.
“Ordinary Course of Business” means actions taken by the Company Group Entities, or by Seller or German Seller with respect to the Contributed Assets, the Company Group Entities or the Safari Business, in the ordinary course of business consistent with past custom and practice.
“Owned Real Property” shall mean all land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, owned by a Safari Business Entity and which is primarily related to or primarily used in the Safari Business, including those set forth on Schedule 4.7(e).
“Parties” shall mean Purchaser and Seller.
“Performance Stock Unit” shall mean a performance-based vesting restricted stock unit granted pursuant to a Seller Equity Incentive Plan and an applicable award agreement.
“Permits” shall mean all permits, licenses, franchises, authorizations, registrations, consents, certificates, accreditations, notification and approvals (including Environmental Permits) obtained from or issued by Governmental Authorities or required by any Governmental Authority to be obtained, maintained or filed.
“Permitted Liens” shall mean: (i) Liens for Taxes, assessments and governmental charges or court proceedings being contested in good faith by a Safari Business Entity in appropriate proceedings and for which adequate reserves have been established in the Interim Financial Statements (if required under GAAP); (ii) Liens for Taxes either not due and payable, or due but which may be paid without penalty, and in each case for which adequate reserves have been established in the Interim Financial Statements (if required under GAAP); (iii) inchoate Liens, charges and privileges incidental to current operations in the Ordinary Course of Business (including mechanics’, carriers’, workmen’s, repairmen’s or other similar Liens) for amounts which are not yet due and payable and for which appropriate reserves have been established in the Interim Financial Statements (if required under GAAP); (iv) security given in the Ordinary Course of Business to any public utility, Governmental Authority or to any statutory or public authority; (v) other Liens, if any, which imperfections of title or other encumbrances do not materially impair the use of the assets to which they relate; (vi) all encumbrances, covenants, easements, agreements and restrictions of record applicable to the land and buildings thereon which encumber Purchaser’s leasehold interest described in the Real Property Lease Agreements; (vii) Liens that are immaterial in character and amount and that do not materially detract from the value of, or materially interfere with the use of, the properties or assets they affect; (viii) non-exclusive licenses or other similar non-exclusive rights, permissions or authorizations that have been granted by Seller or any Company Group Entity in the Ordinary Course of Business to any Party prior to the Closing Date; and (ix) easements, rights of way, encroachments, zoning ordinances and other similar encumbrances of record affecting the Owned Real Property or Leased Real Property and matters
that would be disclosed by an accurate survey or title insurance opinion, report, commitment, or policy, none of which materially detracts from the value of, or materially interferes with the use of, the properties or assets they affect.
“Person” shall mean any individual, firm, corporation, general or limited partnership, limited liability company, trust, business trust, joint stock company, joint venture, unincorporated organization, sole proprietorship, firm, association or other entity or organization (whether or not a legal entity), including any Governmental Authority, and shall include any successor (by merger or otherwise) of such entity.
“Personal Information” means (i) any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, household, or device, and (ii) any other information defined as “personal data,” “personally identifiable information,” “individually identifiable health information,” “personal information,” or a similar term under any Governmental Rule.
“Pre-Closing Claims” shall have the meaning set forth in Section 6.11.
“Pre-Closing Occurrence Based Policies” shall have the meaning set forth in Section 6.11.
“Pre-Closing Restructuring” has the meaning set forth in the Recitals.
“Pre-Closing Tax Liabilities Amount” shall mean, without duplication, an aggregate amount equal to all of the unpaid Tax liabilities of each of the Company Group Entities (which, for the avoidance of doubt, shall be without duplication of any Taxes of the Company Group Entities paid by Seller pursuant to Section 8.2(a)(i), and which in no event shall be less than zero in any jurisdiction or for any standalone taxpaying entity) attributable to any Pre-Closing Tax Period (whether or not yet due and payable), calculated consistently with the past practice of the Company Group Entities (except as required by applicable law or as otherwise provided herein), and determined by (i) including in taxable income any adjustment pursuant to Section 481 of the Code (or any similar provision of state, local or foreign Tax Governmental Rule) and any prepaid amounts or deferred revenue that in each case would not otherwise be included in taxable income on or prior to the Closing Date, (ii) including, if applicable, the aggregate amount of any Tax under Section 965 of the Code (whether or not deferred under Section 965(h) of the Code), (iii) including any Taxes payable after the Closing Date pursuant to Sections 951 and 951A of the Code by a direct, indirect or constructive shareholder (including Purchaser and its Affiliates) of any of the Company Group Entities that are attributable to income of a Company Group Entity for any Pre-Closing Tax Period (offset, for the avoidance of doubt, by any applicable taxes deemed paid pursuant to Section 960 of the Code and also offset by any applicable deduction arising under Section 250 of the Code), and (iv) taking into account any estimated or prepaid Taxes paid by a Company Group Entity in a particular jurisdiction to the extent actually available under applicable Governmental Rules to reduce such unpaid Taxes of the same type in such jurisdiction for such Company Group Entity for the Pre-Closing Tax Period.
“Pre-Closing Tax Period” shall mean all taxable periods ending on or prior to the Closing Date, and the portion of all Straddle Periods ending on (and including) the Closing Date.
“Pre-Transfer Service” shall have the meaning set forth in Section 7.1(c).
“Proceeding” shall mean any actions, suits, proceedings, charges, lawsuits, litigations, arbitrations, audits, investigations, inspections, subpoenas, penalty assessments, or other compliance or enforcement actions by any Governmental Authority.
“Property Taxes” shall have the meaning set forth in Section 8.2(d).
“Purchase Price” means an amount equal to the sum of (a) $3,000,000,000, plus (b) the amount (if any) by which Closing Cash, as finally determined pursuant to the process set forth in Section 2.3 through Section 2.5, is greater than the Minimum United States Cash Level, minus (c) the amount (if any) by which Closing Cash, as finally determined pursuant to the process set forth in Section 2.3 through Section 2.5, is less than the Minimum United States Cash Level, plus (d) the Net Working Capital Surplus, if any, as finally determined pursuant to the process set forth in Section 2.3 through Section 2.5, minus (e) the Net Working Capital Deficit, if any, as finally determined pursuant to the process set forth in Section 2.3 through Section 2.5, minus (f) the Closing Indebtedness, as finally determined pursuant to the process set forth in Section 2.3 through Section 2.5.
“Purchaser” shall have the meaning set forth in the first paragraph of this Agreement.
“Purchaser Benefit Plans” shall have the meaning set forth in Section 7.1(c).
“Purchaser Material Adverse Effect” shall have the meaning set forth in Section 5.1.
“Purchaser Released Parties” has the meaning set forth in Section 6.12(a).
“Purchaser’s Welfare Plan” shall have the meaning set forth in Section 7.1(e).
“Purchaser’s Workers’ Compensation Plan” shall have the meaning set forth in Section 7.1(d)(iii).
“R&W Insurance Policy” means a buyer-side representations & warranties insurance policy issued on or after the date hereof by an issuer or issuers acceptable to Purchaser, which insurance policy shall (a) include an irrevocable, unconditional waiver of the insurer thereunder of such insurer’s subrogation rights against Seller (other than in the case of Fraud) and (b) provide the premium, underwriting fee and any other fees and expenses relating to or arising from the purchase of such policy shall be paid for by Purchaser.
“Real Property Lease Agreements” shall mean the Real Estate Leases in the form attached hereto as Exhibit C.
“Released Parties” shall have the meaning set forth in Section 12.2(c).
“Releasing Parties” shall have the meaning set forth in Section 12.2(c).
“Replacement Plans” has the meaning set forth in Section 7.1(a).
“Representatives” shall mean a Person’s officers, directors, managers, stockholders or employees or any investment banker, attorney or other advisor, agent or representative retained by any of them.
“Required Amount” shall have the meaning set forth in Section 6.10(b).
“Restricted Business” means the manufacturing, marketing, selling or servicing of automation solutions specifically designed or configured for or, to Purchaser’s knowledge after due inquiry, intended for use in, facilities that collect, catalog and store more than one hundred thousand (100,000) samples of biological materials.
“Restricted Period” shall have the meaning set forth in Section 6.7(b).
“Restricted Stock Unit” shall mean a time-based vesting restricted stock unit granted pursuant to a Seller Equity Incentive Plan and an applicable award agreement.
“Retention Bonus Plan” means any retention bonus plan adopted by Seller or any of its Affiliates for the benefit of the Covered Employees.
“Reverse Termination Fee” shall have the meaning set forth in Section 12.2(c).
“Safari Business” means the business unit of Seller operated by Seller and its Affiliates that develops, markets, sells, maintains, services, and/or provides, in each case, on a global basis, high precision robotics, collaborative robotics, controllers, automation systems, and contamination control systems (including contamination control reticle storage and EUV pod cleaning and reticle storage) to the global semiconductor capital equipment industry, global laboratory automation industry and global industrial technology customers.
“Safari Business Entities” shall mean Seller, German Seller and the Company Group Entities, collectively.
“Safari Confidential Information” means all information of a confidential or proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium, that relates to the business, products, services and/or research and/or development of the Safari Business or the Safari Business Entities and/or their respective suppliers, distributors, customers, independent contractors and/or other business relations, in each case, solely to the extent relating to the Safari Business. Safari Confidential Information includes the following: (i) internal business information (including historical and projected financial information and budgets and information relating to strategic and staffing plans and practices, business, training, marketing, promotional and sales plans and practices, cost, rate and pricing structures and accounting and business methods); (ii) identities of, individual requirements of, specific contractual arrangements with, and information about, suppliers, distributors, customers, independent contractors or other business relations and their confidential information; (iii) trade secrets, know-how, compilations of data and analyses, techniques, systems, formulae, recipes, research, records, reports, manuals, documentation, models, data and data bases relating thereto; (iv) inventions, innovations, improvements, developments, methods, designs, analyses, drawings,
reports and all similar or related information (whether or not patentable); and (v) other Intellectual Property Rights, in each case, to the extent relating primarily to or used primarily in the Safari Business. Notwithstanding the foregoing, Safari Confidential Information shall not include any information that as of the Closing Date is known to the public or thereafter becomes known to the public by publication or otherwise through no fault of Seller.
“Sanctioned Country” means any country or region or government thereof that is, or has been in the last five years, the subject or target of a comprehensive embargo under Trade Control Laws (including Cuba, Iran, North Korea, Sudan, Syria, Venezuela, and the Crimea region of Ukraine).
“Sanctioned Person” means any Person that is the subject or target of sanctions or restrictions under Trade Control Laws including: (i) any Person listed on any U.S. or non-U.S. sanctions- or export-related restricted party list, including the U.S. Department of the Treasury Office of Foreign Assets Control’s (“OFAC”) List of Specially Designated Nationals and Blocked Persons, the U.S. Department of Commerce Bureau of Industry and Security’s (“BIS”) Entity List, or any other OFAC, BIS or U.S. Department of State sanctions- or export-related restricted party list; (ii) any Person that is, in the aggregate, 50 percent or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (i); or (iii) any national of a Sanctioned Country.
“Sanctions Laws” means all U.S. and non-U.S. laws, statutes, regulations, and orders relating to economic or trade sanctions, including the Governmental Rules administered or enforced by the United States (including by OFAC or the U.S. Department of State) and the United Nations Security Council.
“Security Incident” means any (i) breach of security, phishing incident, ransomware or malware attack, or other incident affecting any computer systems used by Seller or the Safari Business, or (ii) incident in which confidential information or Personal Information relating to the Safari Business was accessed, disclosed, destroyed, processed, used, or exfiltrated in an unauthorized manner (whether any of the foregoing was possessed or controlled by Safari Business or by another Person on behalf of the Safari Business).
“Seller” shall have the meaning set forth in the first paragraph of this Agreement.
“Seller Benefit Plan” shall mean each “employee benefit plan,” as defined in Section 3(3) of ERISA (whether or not subject to ERISA), each employment agreement or offer letter, stock option, restricted stock, restricted stock unit, performance stock unit, stock purchase, phantom stock or other equity or equity-based compensation, incentive compensation, benefit or incentive pay scheme, each retention compensation, change in control compensation, benefit or incentive plan, each retiree medical or life insurance, supplemental retirement arrangement, each vacation or paid time off policy, each deferred compensation or severance plan, arrangement or policy and each other benefit or compensation plan, program, arrangement or policy that is sponsored, maintained or otherwise contributed to by Seller or any of its Affiliates for the benefit of any Covered Employee, former employee of the Safari Business or any director or office of the Safari Business or with respect to which any Transferred Subsidiary has any current or contingent liability or obligation, including any Transferred Benefit Plan.
“Seller Equity Awards” shall mean any Restricted Stock Unit or Performance Stock Unit issued and outstanding as of immediately prior to the Closing Date.
“Seller Equity Incentive Plan” shall mean any of Seller’s (a) Second Amended and Restated 2000 Equity Incentive Plan, restated as of May 7, 2013; (b) 2015 Equity Incentive Plan; or (c) 2020 Equity Incentive Plan.
“Seller Fundamental Representations” means the representations and warranties contained in Section 4.1 (Incorporation), Section 4.2 (Authority), Section 4.3(a) (No Conflict), Section 4.7(a) (Title to Assets), Section 4.7(b) (Transferred Subsidiaries), Section 4.19 (Brokers) and Section 4.26 (Affiliate Transactions).
“Seller Material Adverse Effect” shall mean any state of facts, circumstance, condition, change, event or effect that has, or would reasonably be expected to have, individually or in the aggregate, (1) a material adverse effect on the business, condition (financial or otherwise), assets, liabilities, operations or results of operations of the Safari Business Entities related solely to the Safari Business or the Contributed Assets (and/or any other assets of the Company Group Entities from and after giving effect to the Pre-Closing Restructuring) (taken as a whole) or (2) a material adverse effect on the ability of Seller, in a timely manner, to perform its obligations under, or to consummate the transaction contemplated by, this Agreement, other than, solely with respect to clause (1) of this definition, any state of facts, circumstance, condition, change, event or effect relating to (a) general economic or political conditions or securities, credit, financial or other capital markets conditions, in each case in the United States or any foreign jurisdiction (including interest rate and exchange rate fluctuations), (b) the failure to meet any forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that facts or circumstances giving rise to or contributing to such failure may be deemed to constitute or taken into account in determining whether there has been a Seller Material Adverse Effect), (c) the public announcement or pendency of the transactions contemplated by the Transaction Agreements or the identity of Purchaser or its Affiliates or any plans with respect to the Safari Business that are announced by Purchaser or its Affiliates, including the impact thereof on the relationship, contractual or otherwise, of Seller or any Selling Subsidiary with employees, labor unions, customers, suppliers, distributors, partners or similar relationships; it being understood that this clause (c) shall not apply to the representations and warranties and related conditions contained in this Agreement that are primarily intended to address the consequences of the execution, announcement, performance or consummation of this Agreement or the transactions contemplated by this Agreement, (d) changes or conditions generally affecting the industries in which Seller or any of its Subsidiaries operate, (e) any natural disaster or any acts or threats of terrorism, military action or war or any escalation or worsening thereof, (f) changes in public health conditions globally or in the United States (including any epidemic, pandemic, or disease outbreak (including the COVID-19 pandemic)), including any material worsening of such conditions, (g) changes (after the date of this Agreement) in applicable laws, regulations or accounting principles, or (h) the taking of any action or omitting to take any action at the express written request of or with the express written approval of Purchaser; provided that any state of facts, circumstance, condition, change, event or effect set forth in clauses (a), (d), (e), (f) and (g) of this definition shall be taken into account in determining whether there has been or would reasonably be expected to be a Seller Material Adverse Effect to the extent such state of facts, circumstance, condition, change, event or effect has a disproportionate impact on the Safari
Business, the Company Group Entities or the Contributed Assets relative to other Persons in the industry in which the Safari Business or the Company Group Entities operate.
“Seller No-Hire Employee” shall mean (A) an employee of Seller or any of its Subsidiaries (i) who holds the title of manager (or any similar or comparable title) or above, (ii) who regularly interacts with Seller’s customers or clients and (iii) with whom Purchaser or its Affiliates had substantive contact by virtue of the transactions contemplated by this Agreement and the other Transaction Agreements and (B) any employee of Seller or any of its Subsidiaries performing services under the Transition Services Agreement with whom Purchaser or any of its Affiliates has substantive in contact in connection with the performance of services under the Transition Services Agreement.
“Seller Released Parties” has the meaning set forth in Section 6.12(b)
“Seller’s Welfare Plan” shall have the meaning set forth in Section 7.1(e).
“Seller’s Workers’ Compensation Plan” shall have the meaning set forth in Section 7.1(d)(iii).
“Selling Companies” shall mean Seller and the German Seller.
“Severance Obligations” shall mean any statutory, contractual, common law or other severance payments or other separation benefits or any other legally or contractually mandated severance payment or other separation benefit obligations, whether pursuant to applicable law, any applicable plan or policy, any applicable individual employment agreement or arrangement or otherwise (including any compensation payable during a mandatory termination notice period and any severance payments or other separation benefits pursuant to a judgment of a court having competent jurisdiction).
“Shared Contract” shall mean all contracts or agreements that inure to the benefit or burden of, or otherwise relate to, both (i) the Safari Business and (ii) any other business of Seller and its Affiliates, including those contracts and agreements set forth in Schedule 4.27. For the avoidance of doubt, the Transition Services Agreement and any software license or access to software-based services that are provided under, as part of, a “Service” (as defined in the Transition Services Agreement) shall not be deemed a Shared Contract hereunder.
“Software” shall mean all (i) computer programs, applications, systems and code, including software implementations of algorithms, models and methodologies, and source code and object code, (ii) databases and collections of data, whether machine-readable or otherwise, (iii) development and design tools, library functions and compilers, and (iv) documentation, other works of authorship and media, including user manuals and training materials related to the foregoing.
“Solvent” shall have the meaning set forth in Section 5.9.
“Specified Compensation and Benefits” shall mean, with respect to any Transferred Employee, (i) a base salary, wages or annualized fixed or guaranteed remuneration, as applicable, that is substantially comparable in the aggregate to, (ii) short-term
variable/incentive/bonus pay programs (including, where applicable, sales commission plans) that provide cash bonus/incentive opportunities that are substantially similar in value (excluding in all cases equity incentive compensation and severance) to, and (iii) employee benefits (including severance as provided in Section 7.1(b)(ii) and the Deferred Compensation Plan on the terms set forth in Section 7.1(g), but excluding any equity or equity-based plans or benefits, defined benefit pension, nonqualified deferred compensation (other than the Deferred Compensation Plan) and retiree health and welfare benefits) that are substantially similar in the aggregate to, with respect to each of clauses (i), (ii) and (iii), those provided to such Transferred Employee by Seller and its Subsidiaries on the date hereof and as set forth on Schedule 4.11(a) with respect to each Transferred Employee.
“Specified Period” shall mean one (1) year following the Closing Date (or until the date of termination of the applicable Transferred Employee, if earlier).
“Straddle Period” shall mean any taxable period that includes, but does not end on, the Closing Date.
“Subsidiary” of any Person shall mean a corporation, company or other entity (i) more than 50% of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority of such Person) are, or (ii) which does not have outstanding shares or securities (as may be the case in a partnership, limited liability company, joint venture or unincorporated association), but more than 50% of whose ownership interest representing the right to make decisions for such entity is, now or hereafter owned or controlled, directly or indirectly, by such Person, but such corporation, company or other entity shall be deemed to be a Subsidiary only so long as such ownership or control exists.
“Swiss Tax Issue” means (i) the recapture into taxable income of the prior impairment tax deduction with respect to the equity held by Brooks RS Holdings AG in Brooks CCS RS AG; and (ii) the increase to taxable income, including an indirect partial liquidation dividend, or payment triggered and owing by the Company Group Entities as a result of the merger of Tec-Sam Group AG into Brooks RS Holdings AG or the reversal of such merger.
“Target Closing Date” shall have the meaning set forth in Section 6.2.
“Tax” or “Taxes” shall mean all taxes, imposts, duties, withholdings, charges, fees, levies or other assessments imposed by any Governmental Authority or other taxing authority, whether domestic or foreign (including income, profits, capital gains, excise, property, business, sales, use, transfer, conveyance, payroll or other employment related tax, license, registration, ad valorem, value added, goods and services, withholding, social security, national insurance (or other similar contributions or payments), environmental, occupation, franchise, estimated, severance, stamp taxes, capital or capital stock, net worth, gross receipts or other taxes), together with all interest, fines, penalties and additions attributable or imposed with respect thereto.
“Tax Proceeding” shall have the meaning set forth in Section 4.10(a)(v).
“Tax Returns” shall mean any return, declaration, report, election, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.
“Terminating Purchaser Breach” shall have the meaning set forth in Section 12.2(a)(v).
“Terminating Seller Breach” shall have the meaning set forth in Section 12.2(a)(iv).
“Trade Secrets” shall mean any trade secrets or similar forms of protection for confidential information, including invention disclosures, formulae, recipes, specifications (including information regarding materials, ingredients, tools, apparatus, sources and vendors), procedures, processes, methods, techniques, ideas, creations, inventions and discoveries (whether patentable or unpatentable and whether or not reduced to practice), improvements, know-how, research and development, technical data, designs, models, algorithms, source code, subroutines and similar confidential information.
“Transaction Agreements” shall mean the Acquisition Agreements, the Limited Guaranty, the Equity Commitment Letter, and the Operating Agreements.
“Transaction Tax Deductions” means, without duplication, to the extent “more likely than not” deductible (or deductible at a higher confidence level) under applicable Tax Governmental Rule, the aggregate amount of (i) all stay bonuses, sale bonuses, change in control payments, retention payments, synthetic equity payments, option cancellation or similar payments made or to be made by any of the Transferred Subsidiaries in connection with or resulting from the transactions contemplated by this Agreement (including the employer portion of any employment Taxes with respect to such amounts), (ii) all fees, expenses and interest (including amounts treated as interest for U.S. federal income Tax purposes) and any breakage fees or accelerated deferred financing fees incurred by any of the Transferred Subsidiaries with respect to the payment of debt in connection with or resulting from the transactions contemplated by this Agreement, and (iii) all fees, costs and expenses incurred by any of the Transferred Subsidiaries in connection with or resulting from the transactions contemplated by this Agreement, including, any such legal, accounting and investment banking fees, costs and expenses, in the case of each of the foregoing clauses (i) through (iii), to the extent such amounts are borne economically by Seller pursuant hereto. The Parties hereto shall apply the safe harbor election set forth in Internal Revenue Service Revenue Procedure 2011-29 to determine the amount of any applicable success-based fees for purposes of the foregoing clause (iii).
“Transfer” shall mean any sale, assignment, conveyance or other transfer with respect to assets or contracts, and any assignment, assumption or other transfer with respect to liabilities.
“Transfer Taxes” shall mean all real and personal property transfer, stock transfer, documentary, registration, stamp duty, and any similar Taxes imposed on the transfer of the Units, the transfer of the Germany Holdings Equity Interests pursuant to this Agreement, and any transfer made pursuant to the Pre-Closing Restructuring, provided that Transfer Taxes shall not include any Non-Resident Capital Gain Tax.
“Transferred Benefit Plan” means any Seller Benefit Plan that is, as of the Closing Date, sponsored by a Company Group Entity.
“Transferred Employee Liabilities” shall mean any and all Employment Costs relating to each Transferred Employee (or any eligible dependent or beneficiary of a Transferred Employee) that (i) are incurred or arise as a result of an event or events that occurred on or after 12:01 a.m. Eastern Time on the Closing Date (excluding, for the avoidance of doubt, (a) any Severance Obligations that arise as a result of Seller’s or its applicable Subsidiary’s termination or transfer of the employment of any Covered Employee to any Company Group Entity or any Covered Employee who rejects an offer of employment from, or otherwise refuses to work for, a Company Group Entity and (b) any employment, payroll or similar Taxes the payment of which has been deferred to a taxable period (or portion thereof) beginning after the Closing Date pursuant to the CARES Act) or (ii) are otherwise expressly assumed by Purchaser or any of its Subsidiaries pursuant to this Agreement or any other Transaction Agreement (or in any Schedules or Exhibits thereto); provided, however, that Transferred Employee Liabilities shall not include any liabilities or obligations that are expressly retained by Seller or any of its Subsidiaries pursuant to this Agreement or any other Transaction Agreement (or in any Schedules or Exhibits thereto).
“Transferred Employees” shall mean those Covered Employees who accept employment with Purchaser or any of its Subsidiaries and who commence such employment as of 12:01 a.m. Eastern Time on the Closing Date (or, if applicable, as of such later time that such employees commence employment with Purchaser or any of its Subsidiaries) or whose employment is transferred automatically to Purchaser or its Affiliate by operation of law or without any action required on the part of Seller, Purchaser, or any of their Affiliates.
“Transferred IP” shall mean (i) the Contributed IP and (ii) the Intellectual Property Rights owned or purported to be owned by any Company Group Entity (after giving effect to the Pre-Closing Restructuring).
“Transferred Subsidiaries” means the direct and indirect Subsidiaries of Seller listed on Schedule 1.1(c).
“Transition Services Agreement” shall mean (i) the Transition Services Agreement between Seller and Purchaser, a copy of which is attached as Exhibit D to this Agreement, and (ii) any related statements of work and service description attachments and other ancillary documents to be entered into pursuant thereto.
“Transitional Trademark License Agreement” means the Transitional Trademark License Agreement in the form attached hereto as Exhibit E.
“Units” has the meaning set forth in the Recitals.
“WARN Act” shall have the meaning set forth in Section 7.2(b).
“Workers’ Compensation Event” shall mean the event, injury, illness or condition giving rise to a worker’s compensation claim.
or referred to in any Transaction Agreement are hereby incorporated in and made a part of such Transaction Agreement as if set forth in full therein. Each capitalized term used in any Schedule or Exhibit but not otherwise defined therein, has the meaning specified in the applicable Transaction Agreement or this Agreement. When a reference is made in any Transaction Agreement to a Section, Subsection, Article, Exhibit or Schedule, such reference shall be to a Section, Subsection or Article of, or an Exhibit or Schedule to, such Transaction Agreement unless otherwise indicated. For all purposes under the Transaction Agreements, (a) definitions of terms shall apply equally to the singular and plural forms of the terms defined, (b) whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms, (c) the terms “include,” “includes” and “including” shall be deemed followed by the words “without limitation,” (d) the words “hereof,” “herein” and “hereunder” and words of similar import shall refer to the applicable Transaction Agreement as a whole and not to any particular provision of such Transaction Agreement and (e) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and shall not simply mean “if.” The symbol “$” shall mean lawful money of the United States of America; provided, however, that such symbol when used herein in reference to a contract that is denominated in any other currency shall be deemed to mean the United States dollar equivalent of such other currency determined by reference to an internationally recognized exchange rate as of three (3) Business Days prior to the Closing. In the event of any conflict between this Agreement and any other Transaction Agreement, the terms of this Agreement shall control, except to the extent otherwise necessary under the applicable law. The parties have participated jointly in the negotiating and drafting of each Transaction Agreement. If an ambiguity or a question of intent or interpretation arises, each Transaction Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of any Transaction Agreement. The Transaction Agreements are in the English language only, which shall be controlling in all respects. No translation, if any, of the Transaction Agreements into any other language shall be of any force or effect in the interpretation of such Transaction Agreement or in a determination of the intent of any party thereto.
Purchase and Sale of EQUITY INTERESTS
applicable, and (iii) a calculation of the Initial Purchase Price based on the foregoing amounts set forth in the Estimated Closing Statement and the other components of the Initial Purchase Price, quantifying in reasonable detail the estimates of the items constituting Estimated Closing Cash, Estimated Closing Indebtedness, Estimated Closing Net Working Capital and the Net Working Capital Deficit or Net Working Capital Surplus, as applicable. From the delivery of the Estimated Closing Statement until the Closing, Seller and the Company shall (A) give Purchaser and its Representatives reasonable access to (as Purchaser may reasonably request) (x) the applicable books and records (including Tax books and records), work papers, trial balances and other supporting information relating to the Estimated Closing Statement and the calculations set forth therein and (y) Seller’s and the Safari Business’ personnel and accountants, (B) reasonably cooperate with and respond in good faith to Purchaser’s reasonable requests related thereto and (C) consider in good faith any proposed adjustments of Purchaser and its Representatives to such Estimated Closing Statement and reflect such adjustments to such Estimated Closing Statement that Seller determines in good faith are appropriate.
Accounting Referee shall act as an expert and not an arbitrator to determine, based solely on presentations and submissions by Purchaser and Seller (which presentations and submissions shall be made to the Accounting Referee no later than twenty (20) days after the engagement of the Accounting Referee), and not by independent review, only those items and amounts specifically set forth and objected to in the Dispute Notice and resolve the dispute with respect to each such specific item and amount in accordance with the Accounting Principles and this Agreement; provided, however, that the Accounting Referee shall not assign a value to any item greater than the greatest value for such item, or lower than the lowest value of such item, claimed in any notice of disagreement presented to the such Accounting Referee pursuant hereto. The fees and expenses of the Accounting Referee will be borne by Seller and Purchaser in inverse proportion to the dollar amount of the items in dispute as submitted to the Accounting Referee as to which such Party prevails in the proceeding, which proportionate allocations shall also be determined by the Accounting Referee. The decision of the Accounting Referee with respect to the items of the Dispute Notice submitted to it will be final, conclusive and binding on the Parties on the date the Accounting Referee delivers its final determination in writing to Purchaser and Seller, and such final determination by the Accounting Referee shall not be subject to court review or otherwise appealable, absent fraud or manifest error. Each of the Parties to this Agreement agrees to use its commercially reasonable efforts to cooperate with the Accounting Referee and to cause the Accounting Referee to resolve any dispute as promptly as practicable and in any event no later than forty-five (45) days after the engagement of the Accounting Referee. Purchaser and Seller agree to execute, if requested by the Accounting Referee, a reasonable and customary engagement letter. The Parties acknowledge that all discussions related to the final determination of Closing Net Working Capital and Closing Indebtedness pursuant to this Section 2.4 and any disputed items related thereto are without prejudice communications made in confidence with the intent of attempting to resolve a litigious dispute and are subject to settlement privilege.
Representations and Warranties of Seller
Except as set forth on the disclosure letter delivered by Seller to Purchaser on the date hereof or on the other Schedules to this Agreement (collectively, the “Disclosure Letter”) (with the disclosure in any section or subsection of the Disclosure Letter being deemed to qualify other
sections and subsections of this Article IV to the extent that it is reasonably apparent on its face that such disclosure should qualify or apply to such other sections and subsections), Seller hereby represents and warrants to Purchaser, as of the date hereof and as of the Closing, as follows:
Affiliates, or otherwise terminate its relationship with Seller and/or its Affiliates (in each case, whether as a result of the consummation of the transactions contemplated hereby or otherwise).
express or implied representation or warranty with respect to the Safari Business, Contributed Assets (and any asset of the Company Group Entities from and after giving effect to the Pre-Closing Restructuring), the Company Group Entities, Licensed IP or the Assumed Liabilities, and Seller disclaims any other representations or warranties, whether made by Seller or any of its Affiliates or Representatives. Except for the representations and warranties contained in Article IV hereof (as modified by the Disclosure Letter), Section 6.12(a) and any other Transaction Agreements, Seller hereby disclaims, for itself and each of its Affiliates, all liability and responsibility for any representation, warranty, statement or information made, communicated, or furnished (orally or in writing) to Purchaser or its Affiliates or their respective Representatives (including any opinion, information, projection, or advice that may have been or may be provided to Purchaser by any Representative of Seller or any of its Affiliates). Except for the representations and warranties contained in Article IV hereof (as modified by the Disclosure Letter), Section 6.12(a) and any other Transaction Agreements, Seller makes no representations or warranties to Purchaser regarding any projection or forecast regarding future results or activities or the probable success or profitability of the Safari Business.
Representations and Warranties of Purchaser
Purchaser hereby represents and warrants to Seller, as of the date hereof and as of the Closing, as follows:
conducted and are proposed to be conducted following the Closing Date. For purposes of this Section 5.9, the amount of any contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. No transfer of property is being made and no obligation is being incurred by Purchaser in connection with the transactions contemplated hereby with the intent to hinder, delay or defraud either present or future creditors of the Selling Companies or the Transferred Subsidiaries.
Representatives. Except for the representations and warranties contained in this Article V, Section 6.12(b) and any other Transaction Agreements, Purchaser hereby disclaims, for itself and each of its Affiliates, all liability and responsibility for any representation, warranty, statement or information made, communicated, or furnished (orally or in writing) to Seller or its Affiliates or their respective Representatives (including any opinion, information, projection, or advice that may have been or may be provided to Seller by any Representative of Purchaser or any of its Affiliates).
For the avoidance of doubt, none of the restrictions set forth in Section 6.1(a)-(w) shall (x) prohibit Seller or its Affiliates from (A) consummating the Asset Contribution and (B) consummating the Equity Contribution; provided, that Seller or its Affiliates may elect to not contribute or transfer any Transferred Subsidiary directly owned by Seller to the Company pursuant to the terms of the Equity Contribution Agreement, in which case, Seller may otherwise contribute or transfer such Transferred Subsidiary to another Subsidiary of Seller (in each case, after reasonably considering the implications thereof with respect to the operations of the Safari Business and consulting with Purchaser (including, in each case, as to the tax structuring associated with such transaction)) so long as, to the extent such contribution or transfer of any Transferred Subsidiary to the Company pursuant to the terms of the Equity Contribution Agreement does not occur, (i) Seller sells, assigns, transfers and delivers (or if applicable, causes its applicable Affiliates, including German Seller, to sell, assign, transfer and deliver) to Purchaser at the Closing and Purchaser shall purchase from Seller or such applicable Affiliate, as applicable, such equity ownership of such Transferred Subsidiary free and clear of all Liens for no additional consideration and otherwise in accordance with the terms of this Agreement if such Transferred Subsidiary would not otherwise be owned by Purchaser or German Purchaser immediately following the Closing, (ii) notwithstanding anything to the contrary herein, Seller pays, discharges, and indemnifies and holds harmless Purchaser and its Affiliates from and against any and all Non-Resident Capital Gain Tax and fifty percent (50%) of any and all Transfer Taxes with respect to such sale, assignment, transfer or delivery and (iii) such decision to retain the equity ownership of such Transferred Subsidiary and resulting direct transfer (or such other transfer to another Subsidiary of Seller) of such Transferred Subsidiary will not have any adverse effect in any material respect on Purchaser and its Subsidiaries (whether before or after the Closing) or otherwise result in an unreimbursed cost or a material delay to the consummation of the transactions contemplated by this Agreement, and (y) apply to the retained businesses of Seller and its Affiliates, the Excluded Assets or the Excluded Liabilities. Notwithstanding this Section 6.1, Seller and its Affiliates shall transfer any Excluded Assets or any Excluded Liability out of any Company Group Entity prior to Closing (in each case, after reasonably considering the implications thereof with respect to the operations of the Safari Business). Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the close of business on the Business Day immediately preceding the Closing Date, the Transferred Subsidiaries may distribute or otherwise transfer cash or cash equivalents out of the
Transferred Subsidiaries or among the Transferred Subsidiaries, it being understood that, from and after the close of business on the Business Day immediately preceding the Closing Date through the Closing, the Transferred Subsidiaries shall not use or transfer any of their assets (including cash and cash equivalents) to the extent such assets are transferred, sold, liquidated, disposed of or otherwise used to (a) make any payment in respect of or discharge any Indebtedness, (b) pay any dividends or distributions to Seller or any of its Affiliates (other than the Company Group Entities) or repurchase any of their respective equity interests or (c) pay any fees, commissions or other similar amounts to Seller or to any of its Affiliates (other than the Transferred Subsidiaries).
respective Affiliates to supply such reasonable assistance as may be reasonably requested by any other party in connection with the foregoing. The Parties to this Agreement shall not, and shall cause their respective Affiliates not to, agree to participate in any substantive meeting with any Governmental Authority in respect of any filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other party in advance and, to the extent permitted by such Governmental Authority, gives the other Party the opportunity to attend and participate at such meeting. Purchaser shall propose, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of, or prohibition or limitation on the ownership or operation by it or any of its Subsidiaries of any portion of the business, properties or assets of Purchaser or any of its Subsidiaries, including the Contributed Assets; provided, however, that Purchaser shall not be required pursuant to this Section 6.3 to propose, commit to or effect any action that is not conditioned upon the consummation of the transactions contemplated by the Transaction Agreements. If the actions taken by Purchaser pursuant to the immediately preceding sentence do not result in the conditions set forth in Sections 9.2 and 10.2 being satisfied, then Purchaser shall initiate and/or participate in, at its sole expense and cost, any proceedings, whether judicial or administrative, in order to (x) oppose or defend against any action by any Governmental Authority to prevent or enjoin the consummation of the transactions contemplated by the Transaction Agreements, and/or (y) take such action as necessary to overturn any regulatory action by any Governmental Authority to block consummation of the transactions contemplated by the Transaction Agreements, including by defending any suit, action or other legal proceeding brought by any Governmental Authority in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any suit, action or other legal proceeding that would cause any condition set forth in Section 9.2 or 10.2 not to be satisfied.
Notwithstanding the foregoing, nothing contained in this Section 6.7(b) shall prohibit Seller or its Subsidiaries from the passive ownership of less than 2% of any class of stock listed on a national securities exchange or traded in the over-the-counter market, so long as such Person is not engaged in any other activities described in this Section 6.7(b) (other than the passive ownership of such stock).
Notwithstanding anything herein to the contrary, this Section 6.7(c) shall not apply to, and, for purposes of this Section 6.7(c), “Affiliates” of Purchaser shall not include, Thomas H. Lee Partners, L.P., any investment fund managed by Thomas H. Lee Partners, L.P. or any affiliated management company, any other management company of any of the foregoing, any direct or indirect general or limited partner of any of the foregoing, any portfolio company of any of the foregoing (other than Purchaser and its Subsidiaries) or any director, officer, manager or employee of any of the foregoing (including for this purpose any director, officer, manager or employee of Purchaser or any of its Subsidiaries) who is affiliated with Thomas H. Lee Partners, L.P. or any general or limited partner thereof; provided that Purchaser has not transferred or licensed any Intellectual Property Rights of the Safari Business to any such Affiliate for use in the Restricted Business.
have no obligation to pay any premium, underwriting fee or any other fee or expense relating to or arising from the purchase of the R&W Insurance Policy by Purchaser. Notwithstanding the foregoing, if Purchaser elects not to or is unable to purchase the R&W Insurance Policy, such failure to obtain the R&W Insurance Policy will have no effect on the limitations to Seller’s liability and obligations, or the limitations on Purchaser’s right to recourse, set forth in Article XI.
provides self-insurance), except for (x) amounts that are Excluded Liabilities and (y) amounts attributable to any failure or refusal by Seller to provide timely notice of any Noticed Pre-Closing Claim to the applicable insurer upon Seller’s receipt of notice of such Noticed Pre-Closing Claim from Purchaser or its Affiliates. Seller shall notify Purchaser of all coverage determinations made by the insurer(s) in respect of any Pre-Closing Claims and, if any amounts are paid or to be paid by the insurer in respect thereof, shall request that such insurer make payment directly to Purchaser or the applicable Affiliate thereof, or shall transfer such insurance proceeds to Purchaser or the applicable Affiliate thereof no later than ten (10) days after receipt of such insurance proceeds. Seller shall not release, commute, buy-back or otherwise eliminate the coverage available under any Pre-Closing Occurrence Based Policy without Purchaser’s consent.
Subsidiaries), on the one hand, and the Transferred Subsidiaries or their respective Subsidiaries, on the other hand.
Conditions to Purchaser’s Obligations for the Closing
The obligation of Purchaser to consummate the Closing is subject to the satisfaction (or, if legally permissible, written waiver by Purchaser) of the conditions set forth below in this Article IX.
Conditions to Seller’s Obligations for the Closing
The obligation of Seller to consummate, or to cause German Seller to consummate, the Closing is subject to the satisfaction (or, if legally permissible, written waiver by Seller) of the conditions set forth below in this Article X.
No Survival of Representations and Warranties; Indemnification
None of the representations and warranties set forth in this Agreement or in any certificates delivered under Section 9.1(d) or Section 10.1(c) or any covenants contemplated by this Agreement to be performed prior to the Closing shall survive the Closing and the consummation of the transactions contemplated hereby. This provision shall not limit any covenant or agreement of the Parties which by its terms contemplates performance after the Closing, which such covenants will survive in accordance with their terms. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall limit any remedies or obligations in respect of Fraud. The Parties acknowledge that Purchaser may obtain the R&W Insurance Policy in respect of any inaccuracy or breach of the representations and warranties of Seller contained herein, subject to the terms of the R&W Insurance Policy. Purchaser acknowledges and agrees that, except in the case of Fraud, Purchaser’s sole recourse in the event of any such inaccuracy or breach shall be making claims under the R&W Insurance Policy, if any.
Brooks Automation, Inc.
15 Elizabeth Drive
Chelmsford, MA 01824
Attention:Jason W. Joseph
With a copy (which shall not constitute notice) to:
Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
United States of America
Attention: Michael L. Fantozzi, Esq., Robert E. Burwell, Esq. and
Daniel T. Kajunski, Esq.
c/o Thomas H. Lee Partners, L.P.
100 Federal Street
Boston, Massachusetts 02110
Attention: Jim Carlisle, Michael K. Kaczmarek and Shari Wolkon
Fax: (617) 227-3514
with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654
Attention: Ted M. Frankel, P.C., Cole Parker, P.C. and John Z. Kosir
or to such Person or address as either of the Parties shall hereafter designate to the other from time to time by similar written notice.
of its Affiliates) severance obligations established by Seller or its Affiliates prior to the Closing, any payments in respect of any long term incentive plan or other similar equity or equity-like incentive plan administered by Seller or any of its Affiliates prior to the Closing, in each case owed to any current or former employee, officer, director or other service provider of Seller or any of its Affiliates (including any Covered Employee) that are to be paid (whether by Seller or any Company Group Entity) in connection with the consummation of the Closing (including the employer’s share of any payroll, social security, unemployment or similar Taxes attributable to such amounts determined, if applicable, without regard to any deferral of such Taxes under the CARES Act).
Agreement. Once any Transaction Agreement is signed, any reproduction of such Transaction Agreement made by reliable means (for example, photocopy or facsimile) is considered an original, to the extent permissible under applicable law, and all products and services referred to therein are subject to it.
CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE OF ANY JURISDICTION THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT NOTWITHSTANDING THE FOREGOING, EXCEPT AS OTHERWISE SET FORTH IN THE DEBT COMMITMENT LETTER AS IN EFFECT AS OF THE DATE OF THIS AGREEMENT (INCLUDING AS IT RELATES TO (A) THE INTERPRETATION OF THE DEFINITION OF SELLER MATERIAL ADVERSE EFFECT (AND WHETHER OR NOT A SELLER MATERIAL ADVERSE EFFECT HAS OCCURRED), (B) THE DETERMINATION OF THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT REPRESENTATION (AS DEFINED IN THE DEBT COMMITMENT LETTER) AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF PURCHASER OR ANY OF ITS AFFILIATES HAS THE RIGHT TO TERMINATE ITS OR THEIR OBLIGATIONS HEREUNDER PURSUANT TO SECTION 12.2(a)(iv) OR DECLINE TO CONSUMMATE THE CLOSING AS A RESULT THEREOF PURSUANT TO SECTION 9.1(a) AND (C) THE DETERMINATION OF WHETHER THE CLOSING HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS HEREOF, WHICH WILL IN EACH CASE BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF LAWS THEREOF), ALL CLAIMS OR CAUSES OF ACTION AND MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEMENT (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT, OR OTHERWISE) AGAINST ANY OF THE DEBT FINANCING SOURCES IN ANY WAY RELATING TO THE DEBT COMMITMENT LETTER OR THE PERFORMANCE THEREOF OR THE DEBT FINANCING, SHALL BE EXCLUSIVELY GOVERNED BY AND CONSTRUCTED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES OR RULES TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
otherwise, involving the Debt Financing Sources, arising out of or relating to, this Agreement, the Debt Financing or any of the agreements (including the Debt Commitment Letter) entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such proceeding to the exclusive jurisdiction of such court, (b) agrees that any such proceeding shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise provided in the Debt Commitment Letter or other applicable definitive document relating to the Debt Financing, (c) agrees not to bring or support or permit any of its controlled Affiliates to bring or support any proceeding of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Debt Financing Source in any way arising out of or relating to, this Agreement, the Debt Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York, (d) agrees that service of process upon Seller or its controlled Affiliates in any such proceeding shall be effective if notice is given in accordance with Section 12.4, (e) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such proceeding in any such court, (f) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable law trial by jury in any proceeding brought against the Debt Financing Sources in any way arising out of or relating to, this Agreement, the Debt Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that none of the Debt Financing Sources will have any liability to Seller or any of its controlled Affiliates (in each case, other than Purchaser’s Affiliates) relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise, (h) waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any claim or cause of action involving any Debt Financing Source or the transactions contemplated hereby, any claim that it is not personally subject to the jurisdiction of the courts in New York as described herein for any reason and (i) agrees that the Debt Financing Sources are express third-party beneficiaries of, and may enforce, any of the provisions of Section 12.2(c), Section 12.16 and this Section 12.18 (or the definitions of any terms used in those Sections solely as they relate to such Sections), and that such provisions (or such definitions, solely as they relate to such provision) shall not be amended in any way that is materially adverse to the Debt Financing Sources without the prior written consent of the Debt Financing Sources. Notwithstanding anything contained herein to the contrary, nothing in this Section 12.18 shall in any way affect any party’s or any of their respective affiliates’ rights and remedies under any binding agreement to which a Debt Financing Source is a party, including the Debt Commitment Letter.
based upon, arise under, out or by reason of, be connected with or relate in any manner to this Agreement or any of the other Transaction Agreements, the negotiation, execution or performance of this Agreement or any of the Transaction Agreements (including any representation or warranty made in connection with, or as an inducement to, this Agreement or any of the Transaction Agreements), any breach or violation of this Agreement or any of the other Transaction Agreements or any failure of the transactions contemplated by this Agreement or the other Transaction Agreements to be consummated, in each case, may be made only against (and are those solely of) the Persons that are expressly named as parties to this Agreement or such Transaction Agreements, as applicable, and then only to the extent of the specific obligations of such parties set forth in this Agreement or such other Transaction Agreements, as applicable, and (b) no Affiliate of a party hereto or any of their respective current, former or future direct or indirect Affiliates, equityholders, partners, managers, members, controlling persons, officers, directors, employees, agents, representatives, successors or assignees (collectively, “Non-Recourse Parties”) shall have any liability or obligation (whether in contract, in tort, in law or in equity, or granted by statute whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or otherwise) based upon, arising under, out or by reason of, connected with or relating in any manner to this Agreement or any of the other Transaction Agreements, the negotiation, execution or performance of this Agreement or any of the Transaction Agreements (including any representation or warranty made in connection with, or as an inducement to, this Agreement or any of the Transaction Agreements), any breach or violation of this Agreement or any of the other Transaction Agreements or any failure of the transactions contemplated by this Agreement or the other Transaction Agreements to be consummated except to the extent of the specific obligations of such parties that are expressly named as parties to this Agreement or such other Transaction Agreements, as applicable. Nothing in this Section 12.19 shall limit the rights or remedies available to the express parties or express third-party beneficiaries to the Confidentiality Agreement, the Commitment Letters, the Limited Guaranty or the other Transaction Agreements in accordance with the terms thereof.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized signatories as of the date and year first above written.
BROOKS AUTOMATION, INC.
By: /s/ Stephen S. Schwartz
Name: Stephen S. Schwartz
Title: President and Chief Executive Officer
ALTAR BIDCO, INC.
By: /s/ James C. Carlisle
Name: James C. Carlisle
Signature Page to Equity Interest Purchase Agreement