SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) December 10, 2003
(December 10, 2003)
GSI Lumonics Inc.
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(Exact Name of Registrant as Specified in Charter)
New Brunswick, Canada 000-25705 98-0110412
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(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
39 Manning Road, Billerica, Massachusetts 01821
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(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, including area code (978) 439-5511
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N/A
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(Former Name or Former Address, if Changed Since Last Report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
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On December 10, 2003, GSI Lumonics Corporation completed the purchase
of the whole of the issued share capital of Westwind Air Bearings Inc. from FR
Holdings Inc. and GSI Lumonics Limited completed the purchase of the whole of
the issued share capital of Westwind Air Bearings Limited from Cobham Plc and
Lockman Investments Limited. Both GSI Lumonics Corporation and GSI Lumonics
Limited are wholly owned subsidiaries of GSI Lumonics Inc. The purchase price
was (British pound) 21,250,000 in cash. The amount of the consideration was
determined through arm's length negotiations between the parties and was
financed out of available cash and investments at hand. Both Westwind Air
Bearings Limited and Westwind Air Bearings Inc. are involved in the design,
manufacture and supply of products using air bearing technology.
Copies of the sale and purchase agreement, dated December 10, 2003,
relating to the above, and the press release are attached hereto as exhibits
2.1 and 99.1 respectively.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
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(a) Financial Statements of Business Acquired. Not applicable.
(b) Pro Forma Financial Information. Not applicable.
(c) Exhibits. The following exhibits are furnished in accordance with the
provisions of Item 601 of Regulation S-K.
Exhibit No. Description
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2.1 Agreement for the sale and purchase of the whole of the
issued share capital of Westwind Air Bearings Limited
and Westwind Air Bearings Inc. among Cobham plc, FR
Holdings Inc., Lockman Investments Limited, GSI Lumonics
Limited and GSI Lumonics, Corporation, dated December 10,
2003. GSI Lumonics Inc. agrees to furnish supplementally
any omitted schedule to the Commission upon request.
99.1 Press release issued by GSI Lumonics Inc., dated
December 10, 2003.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GSI Lumonics Inc.
(Registrant)
By: /s/ Thomas R. Swain
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Name: Thomas R. Swain
Title: Vice President of Finance and
Chief Financial Officer
Dated: December 10, 2003
EXHIBIT INDEX
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Exhibit
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2.1 Agreement for the sale and purchase of the whole of the
issued share capital of Westwind Air Bearings Limited
and Westwind Air Bearings Inc.
99.1 Press release issued by GSI Lumonics Inc., dated
December 10, 2003.
Exhibit 2.1
EXECUTION COPY
DATED 10 DECEMBER 2003
COBHAM plc
- and -
FR HOLDINGS INC.
- and -
LOCKMAN INVESTMENTS LIMITED
- and -
GSI LUMONICS LIMITED
- and -
GSI LUMONICS, CORPORATION
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AGREEMENT
for the sale and purchase of
the whole of the issued share capital
of Westwind Air Bearings Limited and
Westwind Air Bearings Inc.
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CONTENTS
Clause Page
1 INTERPRETATION.....................................................2
2 SALE AND PURCHASE OF THE SALE SHARES...............................5
3 CONSIDERATION......................................................5
4 SELLERS' WARRANTIES................................................5
5 LIMITATIONS OF LIABILITY...........................................7
6 PURCHASERS' WARRANTIES............................................10
7 TAX DEED..........................................................11
8 COMPLETION........................................................11
9 GUARANTEES AND LOAN ACCOUNTS......................................13
10 PROTECTIVE COVENANTS..............................................14
11 THE ESCROW........................................................15
12 ANNOUNCEMENTS AND CONFIDENTIALITY.................................17
13 INTEREST..........................................................18
14 NOTICES...........................................................18
15 RESOLUTIONS AND WAIVERS...........................................19
16 GENERAL...........................................................20
17 WHOLE AGREEMENT...................................................21
18 GOVERNING LAW.....................................................21
19 SELLERS' REPRESENTATIVE...........................................22
Schedule
1 SALES SHARES AND CONSIDERATION......................................
2 PARTICULARS OF THE COMPANIES........................................
3 PARTICULARS OF THE SUBSIDIARIES.....................................
4 PROPERTIES..........................................................
5 WARRANTIES..........................................................
Documents to accompany agreement:
(1) Disclosure Letter
(2) Tax Deed
(i)
THIS AGREEMENT is made on 10 December 2003
BETWEEN:
(1) COBHAM plc, a company incorporated under the laws of England and Wales
registered under number 30470, whose registered office is at Brook
Road, Wimborne, Dorset BH21 2BJ, England ("Cobham");
(2) FR HOLDINGS, INC., a corporation incorporated under the laws of
Delaware, USA with number 0912214 whose registered office is c/o The
Corporation Trust Company, Corporation Trust Center, 1209 Orange
Street, Wilmington, Delaware 19801, USA ("FRH");
(3) LOCKMAN INVESTMENTS LIMITED, a company incorporated under the laws of
England and Wales registered under number 675211, whose registered
office is at Brook Road, Wimborne, Dorset BH21 2BJ, England
("Lockman", and together with Cobham and FRH, the "Sellers");
(4) GSI LUMONICS LIMITED, a company incorporated under the laws of
England and Wales registered under number 01041317 whose registered
office is at Cosford Lane, Swift Valley, Rugby, Warwickshire CV21
1QN, England ("UK Purchaser"); and
(5) GSI LUMONICS, CORPORATION, a corporation incorporated under the laws
of Michigan USA whose principal offices are at 39 Manning Road,
Billerica, Massachusetts, MA 01821, USA (the "US Purchaser") and,
together with the UK Purchaser, the "Purchasers").
WHEREAS:
(A) Westwind Air Bearings Limited ("Westwind UK") is a private company
limited by shares short particulars of which are set out in Part A of
Schedule 2 having an authorised capital of (British pound)25,890,225
and US$5,000 divided into 500,000 deferred shares of (British pound)1
each, 4,920,000 unclassified shares of (British pound)1 each,
8,693,225 9% non-redeemable cumulative preference shares of (British
pound)1 each, 11,777,000 6.3% redeemable cumulative preference shares
of (British pound)1 each and 500,000 ordinary shares of US$0.01 each
of which 500,000 deferred shares, 11,777,000 6.3% redeemable
cumulative preference shares and 25,000 ordinary shares have been
issued fully paid or credited as fully paid ("Westwind UK Shares").
(B) Westwind Air Bearings Inc. ("Westwind US") is a corporation short
particulars of which are set out in Part B of Schedule 2 having an
authorised capital of US$10 divided into 1,000 shares of US$0.01 each
100 of which have been issued ("Westwind US Shares").
(C) Each of the Sellers wishes to sell the Sale Shares (as defined below)
set opposite its name in Schedule 1 and the UK Purchaser wishes to
purchase the Westwind UK Shares and the US Purchaser wishes to
purchase the Westwind US Shares, in each case, on the terms set out
in this agreement.
1
IT IS AGREED as follows:
1 INTERPRETATION
1.1 In this agreement:
"Accounts" means the audited balance sheet as at the Accounts Date and
audited profit and loss account for the period of 12 months ended on
that date of each of the Group Companies (other than Westwind Air
Bearings (Suzhou) Co., Ltd., and Westwind US) and in each case the
notes, statements and directors' reports relating to them;
"Accounts Date" means 31 December, 2002;
"Business Day" means a day on which banks are open for business in
London and New York (excluding Saturdays, Sundays and public holidays);
"Claim" means any claim made by any of the Purchasers against any of
the Sellers for breach of Warranty or under the Tax Deed;
"Companies" means Westwind UK and Westwind US and "Company" means
each or both of them (as the case may be);
"Completion" means completion of the sale and purchase of the Sale
Shares in accordance with clause 8;
"Completion Date" means the date of this agreement;
"Confidential Information" means business, technical, financial,
operational, administrative, staff management, marketing and economic
information relating primarily to the Group, the identities of
customers and all other information of a secret and/or proprietary
nature relating to the Group but shall not include such information
relating to the Group which is in, or which comes into, the public
domain or a party's possession other than as a result of (i) a breach
of any obligations imposed by this agreement or (ii) a breach of any
other duty of confidentiality relating to that information;
"Consideration" means the aggregate consideration payable in respect
of all of the Sale Shares;
"Disclosure Letter" means the letter relating to the Warranties of the
same date as this agreement from the Sellers' to the Purchasers,
receipt of which has been acknowledged by the Purchasers;
"Escrow Account" means the account in the joint names of Cobham and
Westwind UK in which the Escrow Amount is held;
"Escrow Amount" has the meaning given in clause 8.3(a);
"Group Companies" means each of the Companies and the Subsidiaries
and "Group Company" means any of them;
"Group Loans" means any indebtedness by way of borrowing, including
accrued interest thereon, between the Sellers' Group and the Group
Companies;
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"Information Technology" means all material computer systems (including
software and hardware) owned by or licensed to the Group Companies;
"Intellectual Property Rights" means (i) copyright, patents, know-how,
trade secrets, database rights, and rights in trade-marks and designs
(whether registered or unregistered), (ii) applications for
registration (including all corresponding foreign counterpart
applications, re-issues, re-examinations, divisionals, continuations,
continuations-in-part and extensions thereof) and the right to apply
for registration, for any of the same, and (iii) all other intellectual
property rights and equivalent or similar forms of protection existing
anywhere in the world;
"Liens" means any liens, pledges, encumbrances, charges (fixed or
floating), mortgages, third party claims, debentures, options, rights
of pre-emption, rights to acquire, assignment by way of security,
trust arrangement for the purpose of providing security or security
interests of any kind, including retention arrangements or other
encumbrances and any agreement to create the foregoing;
"Planning Acts" means the Town and Country Planning Act 1990, the
Planning (Listed Buildings and Conservation Areas) Act 1990, the
Planning (Hazardous Substances) Act 1990, the Planning (Consequential
Provisions) Act 1990 and the Planning and Compensation Act 1991;
"Properties" means properties specified in schedule 4 and "Property"
means any of them and includes every part of each of them;
"Purchasers' Group" means each of the Purchasers and their group
undertakings (including each Group Company) at the date of this
agreement;
"Restricted Business" means the design, manufacture and supply of
products and services using air bearing technology;
"Sale Shares" means the Westwind UK Shares and the Westwind US Shares
referred to in Schedule 1;
"Sellers' Group" means the Sellers and their group undertakings
(except the Group Companies) at the date of this agreement;
"Sellers' Representative" means Cobham or any alternative
representative from time to time notified to the Purchasers in
accordance with this agreement;
"Senior Employee" means an employee of any Group Company who is in
receipt of an annual gross basic salary (on the basis of full-time
employment) in excess of (British pound)50,000;
"Subsidiaries" means all the companies details of which are set out
in Schedule 3 and "Subsidiary" means any of them;
"TCGA" means Taxation of Chargeable Gains Act 1992;
"Taxation" or "Tax" has the meaning given to it in the Tax Deed;
"Tax Authority" has the meaning given to it in the Tax Deed;
3
"Tax Claim" means any claim by any of the Purchasers against any of
the Sellers pursuant to the Tax Deed or for breach of the Tax
Warranties;
"Tax Deed" means the tax deed dated the date of this agreement
between the Sellers and the Purchasers;
"Taxes Act" means Income and Corporation Taxes Act 1988;
"Tax Warranties" means those warranties in Part D of Schedule 5;
"Transaction" means the acquisition by each of the Purchasers of the
relevant Sale Shares;
"UK GAAP" means generally accepted accounting principles and
practices in the United Kingdom;
"VATA" means the Value Added Tax Act 1994;
"Warranties" means the warranties contained in Schedule 5 and
"Warranty" means anyone of them; and
"Warranty Claim" means any claim by the Purchasers in connection with
the Warranties.
1.2 In this agreement any reference, express or implied, to an enactment
includes references to:
(a) that enactment as amended, extended or applied by or under any
other enactment (before or after signature of this agreement);
(b) any enactment which that enactment re-enacts (with or without
modification); and
(c) any subordinate legislation made (before or after signature of
this agreement) under any enactment, as re-enacted, amended,
extended or applied as described in paragraph (a) above, or
under any enactment referred to in paragraph (b) above;
and "enactment" includes any legislation in any jurisdiction.
1.3 Where any expression is qualified by the expression "so far as the
Sellers are aware" or to "the Sellers' knowledge, information and
belief" or any similar expression that statement shall be deemed to
be made on the basis of the actual knowledge of Warren Tucker and
Allan Cook and the knowledge those persons would have if they had
made reasonable enquiry of the following persons in relation to the
following areas: Steve Webb (all areas), Chris Roberts (all areas),
Steve Ratcliffe (Part 1 and sections A, B and C of Part 2 of Schedule
5), Chris Watford (section F of Part 2 of Schedule 5) and Ken
Morrison (section D of Part 2 of Schedule 5).
1.4 Words denoting persons shall include bodies corporate and
unincorporated associations of persons and a reference to a person
includes that person's legal personal representatives, successors and
permitted assigns.
1.5 Terms defined in the Companies Act 1985, as amended, shall have the
same meanings herein.
4
1.6 In this agreement a reference to a clause, paragraph or schedule,
unless the context otherwise requires, is a reference to a clause,
paragraph or schedule to this agreement.
1.7 In this agreement, a reference to times of the day is to London time.
1.8 In construing this agreement the so-called "ejusdem generis" rule
does not apply and accordingly the interpretation of general words is
not restricted by (i) being preceded by words indicating a particular
class of acts, matters or things; or (ii) being followed by
particular examples.
1.9 Clauses 1.1 to 1.8 apply unless the contrary intention appears.
1.10 The headings in this agreement do not affect its interpretation.
2 SALE AND PURCHASE OF THE SALE SHARES
2.1 Subject as provided in this agreement, each of the Sellers shall
sell, with full title guarantee on the terms that the same shall be
sold free from all Liens or other third party rights of any nature
whatsoever, the Sale Shares set opposite its name in Schedule 1, and
each of the Purchasers agrees to purchase the Sale Shares set
opposite its name in Schedule 1, together with all rights attaching
to them at the date of Completion.
2.2 From and after Completion, each of the Purchasers shall be entitled
to exercise all rights which are attached or accruing to the Sale
Shares set out opposite its name in Schedule 1 including, without
limitation, the right to receive all dividends, distributions or any
return of capital declared, made or paid with effect from Completion.
2.3 Each Seller covenants that, on or after Completion, it will, at its
own cost and expense, execute and do (or procure to be executed and
done by and other necessary party) all such deeds, documents, acts
and things as the Purchasers may from time to time require in order
to vest any of the Sale Shares in the Purchasers or their nominees
which are nominated in accordance with clause 8.
2.4 The Purchasers and Sellers shall not be obliged to complete the
purchase or sale of any of the Sale Shares unless the purchase and
sale of all the Sale Shares is completed simultaneously in accordance
with this agreement.
3 CONSIDERATION
3.1 The Consideration for the sale and purchase of the Sale Shares shall
be the sum of(British pound)21,250,000 to be paid in cash in
accordance with clause 8 and apportioned between the Sellers as
provided in Schedule 1.
3.2 If any payment is made by a Seller to the Purchasers under or in
respect of any breach of any provision of this agreement (including
any payment pursuant to any Claim, including a Tax Claim) the payment
shall so far as possible be treated as a reduction in the
Consideration and the Consideration shall accordingly be reduced by
the amount of such payment.
4 SELLERS' WARRANTIES
4.1 Each Seller jointly and severally warrants to each of the Purchasers
that:
5
(a) each of the statements set out in Part 1 of Schedule 5 is true
and accurate in respect of such Seller and the Sale Shares set
opposite its name in Schedule 1; and
(b) except as fairly disclosed in the Disclosure Letter, each of
the statements set out in Part 2 of Schedule 5 is true and
accurate.
4.2 Each of the Warranties set out in the several paragraphs of Schedule
5 is separate and independent and, except as expressly provided to
the contrary in this agreement, is not limited:
(a) by reference to any other paragraph of Schedule 5; or
(b) by anything in this agreement or the Tax Deed or any other
document referred to herein (other than the Disclosure Letter).
4.3 Each of the Sellers agrees with the Purchasers (for itself and as
trustee for each Group Company) to waive any rights or claims which
it may have against any Group Company or the directors, officers or
employees of any Group Company in respect of any misrepresentation,
inaccuracy or omission in or from any information or advice supplied
or given by any Group Company or its employees in connection with the
giving of the Warranties or the Tax Deed and the preparation of the
Disclosure Letter other than in respect of any fraudulent
misrepresentation, inaccuracy or omission.
4.4 The Purchasers hereby, and undertake to shall procure that the Group
Companies will, waive all rights and claims, in relation to dividend
payments on the preference shares in the capital of Westwind UK,
which they may have against any director of any Group Company or
against any member of the Sellers' Group and covenant not to, and
undertake to procure that the Group Companies will not, take any
action against any director of any Group Company or against any
member of the Sellers' Group in relation thereto.
4.5 Any sum payable to the Purchasers pursuant to a Claim shall be made
free and clear of and without deduction for or on account of any
Taxation, except to the extent that any such deduction or withholding
is required by law. If such Taxation or amounts in respect of such
Taxation must be deducted or withheld from any sum payable to the
Purchasers pursuant to a Claim, then the Sellers shall pay an
additional amount (such amount being referred to as the "gross-up
amount") as will ensure that after such deduction or withholding
there shall remain a sum equal to the amount that would otherwise
have been payable to the Purchasers pursuant to a Claim. To the
extent that the Purchaser subsequently obtains any Taxation credit,
allowance, repayment or relief as a result of a Seller paying to the
Purchaser the gross-up amount, the Purchaser shall pay to the Seller
so much of the economic benefit from that Taxation credit, allowance,
repayment or relief which the Purchaser has received and retained as
does not exceed the gross-up amount.
4.6 If there is a breach of a Warranty and as a result of the breach:
(a) the value of the Group Company or of its assets are less than
it would have been in the absence of the breach; or
(b) the Group Company incurs a liability which it would not have
incurred, or which exceeds the liability it would have
incurred, had matters been as warranted; or
6
(c) a Group Company suffers loss, costs or expenses,
then the Sellers shall pay to the Purchasers by way of damages an
amount equal to the resulting diminution of value, or the liability
or excess liability, and the loss, costs and expenses (including
legal and other professional fees). Nothing in this agreement shall
be deemed to relieve the Purchasers from any common law duty to
mitigate any loss or damage incurred by it or the Group Companies as
a result of any breach of the Warranties.
5 LIMITATIONS OF LIABILITY
5.1 The liability of the Sellers in respect of the Warranties shall be
limited as follows:
(a) the Sellers shall not be liable in respect of any breach of the
Warranties if and to the extent that the losses arising from
the breach are actually recovered under the Tax Deed or any
other provision of this agreement;
(b) if in respect of any one matter a Tax Claim may be made both
under the Tax Warranties and under the Tax Deed, then to the
extent that recovery in respect of that Tax Claim is actually
made under the Tax Warranties, the amount payable under the Tax
Deed in respect of the same matter is reduced accordingly and
vice versa;
(c) the Sellers shall not be liable in respect of any Warranty
Claim to the extent that it relates to any liability for which
provision is made or falls to be made, or of which the payment
or discharge is reflected, in the Accounts;
(d) the Sellers shall not be liable in respect of any Warranty
Claim to the extent that it relates to any liability or
obligation which would not have arisen but for a change in
legislation or any amendment to, or the withdrawal of, any
practice previously published by a Tax Authority, in either
case occurring after Completion, in each case with
retrospective effect;
(e) the Sellers shall not be liable in respect of any Warranty
Claim to the extent that it relates to any liability or
obligation which arises as a result of any change after
Completion of the date to which any Group Company makes up its
accounts or in the accounting policies and practices of any
Group Company or in any change from UK GAAP (or other
applicable accountancy standard or practices used by the Group
Company) to any other accounting standards or practices;
(f) the Sellers shall not be liable in respect of any Warranty
Claim to the extent that it relates to any liability or
obligation which was occasioned by any voluntary act of the
Purchasers' Group or any Group Company after Completion save
(subject to clause 5.1(m) below) in respect of any Warranty
Claim under the environmental warranties set out in paragraph
A.10 of Part 2 of Schedule 5;
(g) the Sellers shall not be liable in respect of any Warranty
Claim to the extent that it relates to any liability or
obligation of which the Purchasers' Group are actually aware at
the date of this agreement;
(h) in the case of a Taxation liability, the Sellers shall not be
liable in respect of any Warranty Claim to the extent that it
relates to any liability or obligation if any profits or other
amount to which the Taxation is attributable were actually
7
received by any Group Company but were not reflected in the
Accounts and should have been;
(i) the Sellers shall not be liable in respect of any Warranty
Claim to the extent that it arises or is increased as a result
of the failure of any Group Company to make any valid claim,
election, surrender or disclaimer, to give any valid notice or
consent or to do any other thing under the provisions of any
enactment or regulation relating to Taxation after Completion,
the making, giving or doing of which was taken into account in
computing the provisions for Taxation in the Accounts and
either set out in the notes thereto or notified in good time in
writing to the Purchaser after Completion;
(j) the Sellers shall not be liable in respect of any Warranty
Claim to the extent it arises as a result of a failure by the
Purchaser to comply with Clause 10 (Conduct of Tax Affairs) of
the Tax Deed;
(k) the Sellers shall not be liable in respect of any Warranty
Claim to the extent that it would not have arisen but for a
material change in the nature or conduct of any trade carried
on by any Group Company at Completion, being a material change
occurring on or after Completion;
(l) the Sellers shall not be liable to the Purchasers (taken
together) more than once in respect of the same loss; and
(m) the Sellers shall not be liable in respect of any Warranty
Claim under the environmental warranties set out in paragraph
A.10 of Part 2 of Schedule 5 where such claim arises as a
result of:
(i) any information provided to any regulatory authority by
the Purchasers or the Group Companies save (i) as
required by law or legislation or (ii) where such
information is provided as a direct result of a written
request to the Purchasers or the Group Companies for
such information by such regulatory authority and
neither the Purchasers nor any person acting on their
behalf has done anything to incite or encourage such a
written request from the relevant authority;
(ii) any intrusive investigations undertaken at any Relevant
Property by or on behalf of the Purchasers (except where
demanded of the Purchasers by any regulatory authority
or a prospective purchaser of any of the Properties or
the Group Companies or in the ordinary course of business
of the Group Companies as carried out at the date of this
agreement).
5.2 The Purchasers and the Sellers each acknowledge that neither of them
are aware of any Warranty Claim arising out of the WSP Environmental
UK Ltd., Phase 1 environmental audit in relation to Holton Health
Industrial Estate, Poole, Dorset.
5.3 The liability of the Sellers shall also be limited as follows:
(a) the Purchaser shall not be entitled to recover any damages in
respect of any breach or breaches of the Warranties unless (i)
the amount of damages in respect
8
of such breach or breaches exceeds in aggregate the sum of
(British pound)180,000, in which event the Sellers shall be
liable for the whole amount of the liability and not merely the
excess and (ii) each individual claim or series of claims
arising out of the same matters, facts or circumstances exceeds
(British pound)15,000; and
(b) the maximum aggregate liability of the Sellers under this
agreement and the Tax Deed shall not exceed the Consideration.
5.4 The Purchasers shall not be entitled to make any Warranty Claim in
respect of any matter fairly disclosed in the Disclosure Letter.
5.5 If after Completion any of the Purchasers or any Group Company
becomes aware of a matter which could give rise to a claim under the
Warranties (other than in respect of a breach of any Tax Warranty, in
which case the claim shall be dealt with in the manner set out in the
Tax Deed) the Sellers shall not be liable in respect of the Warranty
Claim unless the Purchasers have given written notice of the claim,
setting out reasonable particulars of the relevant facts, and, if
reasonably practicable the amount claimed, to the Sellers promptly
and in any event within three months of any officer of GSI Lumonics,
Inc. (the parent undertaking of the Purchasers' Group) becoming aware
of such Warranty Claim.
5.6 The Sellers shall cease to have any liability under or in respect of
the Warranties:
(a) on the later to occur of the relevant limitation period and the
tenth anniversary of the Completion Date for claims arising
under the Warranties in Part 1 of Schedule 5;
(b) in respect of the Tax Warranties on the seventh anniversary of
the Completion Date provided that, in the case of Westwind US
or any Subsidiaries subject to Tax in a jurisdiction outside
the United Kingdom, on such later date as is six months after
the last date on which the Tax Authority which is seeking to
impose a Tax to which any Claim relates may do so;
(c) on the seventh anniversary of the date of Completion in respect
of claims under Warranty A.10 (Environmental); and
(d) on the date 18 months after the Completion Date in respect of
all other Warranties,
except in respect of a Warranty Claim of which the Purchaser gives
written notice to the Sellers before the relevant date. The liability
of the Sellers in respect of any Warranty Claim shall in any event
terminate if proceedings in respect of it have not commenced within
six months of service of notice of that Warranty Claim.
5.7 The limitations of liability contained in this clause 5 shall not
apply to any liability for any Claim to the extent that the same is
attributable to fraud, fraudulent misrepresentation or wilful
concealment on the part of the relevant Seller.
5.8 If, at any time after the date of this agreement and before the
expiry of three months following Completion the Sellers (or any of
them), want to insure their liabilities in respect of claims they
shall (notwithstanding any other provision of this agreement) be able
to disclose Confidential Information to a prospective insurer subject
to the receipt
9
of a confidentiality undertaking from such insurer in form and
substance reasonably satisfactory to the Purchasers.
5.9 If a claim for breach of Warranty arises as a result of, or in
connection with, a liability or alleged liability to a third party (a
"Third Party Claim"), then (except for a liability in relation to
Taxation where the provisions of the schedule to the Tax Deed shall
apply) at the Sellers' cost in respect of out of pocket expenses (but
not, for example, management time);
(a) the Purchasers shall procure the relevant Group Company to make
available to the Sellers such persons and all such information
as the Sellers may reasonably require for assessing,
contesting, appealing or compromising the Third Party Claim;
(b) the Purchasers shall procure the relevant Group Company, to the
extent reasonably practicable, to consult with the Sellers in
relation to the conduct of any appeal, dispute, compromise or
defence of the Third Party Claim; and
(c) the Purchaser shall, and shall procure that the relevant Group
Company shall, to the extent reasonably practicable, keep the
Sellers informed of the progress of the Third Party Claim.
5.10 This paragraph applies if:
(a) the Sellers make a payment (excluding any interest on a late
payment) in respect of a claim for breach of Warranty (the
"Damages Payment"); and
(b) any Group Company or any Purchaser receives any sum which would
not have been received but for the circumstance which gave rise
to that claim for breach of Warranty (the "Third Party Sum");
and
(c) the receipt of the Third Party Sum was not taken into account
in calculating the Damages Payment; and
(d) the aggregate of the Third Party Sum and the Damages Payment
exceeds the amount required to compensate the Purchaser in full
for the loss or liability which gave rise to the claim for
breach of Warranty in question, such excess being the Excess
Recovery.
If this paragraph applies, the relevant Purchaser shall, promptly on
receipt of the Third Party Sum by it or the relevant Group Company,
repay to the relevant Seller(s) an amount equal to the lower of (i)
the Excess Recovery and (ii) the Damages Payment, after deducting (in
either case) all costs incurred by the Purchaser(s) or the relevant
Group Company in recovering the Third Party Sum and any taxation
payable by the Purchaser(s) or any Group Company by virtue of its
receipt.
5.11 Without prejudice to the Purchasers' duty to mitigate any loss in
respect of any breach of the Warranties, if in respect of any matter
which would otherwise give rise to a breach of the Warranties one of
the Group Companies is entitled to claim under any policy of
insurance, the amount of insurance monies to which that Group Company
actually receives shall reduce pro tanto or extinguish the claim for
breach of the Warranties.
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6 PURCHASERS' WARRANTIES
6.1 Each of the Purchasers warrants to the Sellers that:
(a) it has the requisite power and authority to enter into and to
perform this agreement and the agreements and deed referred to
in this agreement which are to be entered into by the
Purchasers or one or more members of the Purchasers' Group;
(b) it has obtained or satisfied all corporate, regulatory and
other approvals, or any other conditions, necessary to execute
and complete this agreement and the agreements and deed
referred to in this agreement which are to be entered into by
the Purchasers or one or more members of the Purchasers' Group;
(c) this agreement and each of the agreements and the deed referred
to in this agreement which are to be entered into by the
Purchasers or one or more members of the Purchasers' Group
constitute binding obligations of each of the Purchasers and
each such member in accordance with its respective terms;
(d) compliance with the terms of this agreement and the agreements
and deed referred to in this agreement which are to be entered
into by the Purchasers or one or more members of the
Purchasers' Group does not and will not conflict with or
constitute a default or a breach under any provision of:
(i) the Purchasers' or the respective member's memorandum or
articles of association or by-laws or equivalent
constitutional documents; or
(ii) any order, judgement, decree or regulation or any other
restriction of any kind by which the Purchasers or the
respective member is bound or submits; or (iii) any
agreement, instrument or contract to which the
Purchasers or the respective member is a party or by
which it is bound; and
(e) it is not actually aware of any breach of Warranty by the
Sellers.
7 TAX DEED
7.1 The parties to the Tax Deed shall enter into the Tax Deed on
Completion.
8 COMPLETION
8.1 Completion shall take place at the offices of Allen & Overy at 40
Bank Street, Canary Wharf, London immediately after the signature of
this agreement (or on such later date as the Sellers and the
Purchasers may agree in writing).
8.2 At Completion:
(a) Cobham and Westwind UK shall each sign the bank mandate in
respect of the Escrow Account providing that no withdrawals may
be made from the Escrow Account without the joint signatures of
Cobham and Westwind UK;
(b) each of the Sellers shall procure the delivery to the
Purchasers of:
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(i) duly executed transfers in favour of the relevant
Purchaser or its nominee(s) of all the Sale Shares shown
opposite its name in Schedule 1;
(ii) the share certificates representing such Sale Shares (or
an express indemnity in a form reasonably satisfactory
to the Purchasers in the case of any found to be
missing); and
(iii) the Tax Deed duly executed by the Sellers;
(c) the Sellers shall procure the delivery to the Purchasers of:
(i) the certificate of incorporation, common seal, minute
books and share certificate books of Westwind UK;
(ii) duly executed transfers of each share in a Subsidiary as
is not registered in the name of the Company or a member
of the Group in favour of the Purchasers or as it may
direct together with the relevant share certificates;
and
(iii) the resignation of Warren Tucker and Allan Cook as
directors of Westwind UK in each case acknowledging
under seal that they have no claim against any member of
the Group whether for loss of office or otherwise; and
(d) Each of the Sellers shall procure that a board meeting of the
Companies are held at Completion at which it is resolved that:
(i) such persons as the Purchasers nominate are appointed as
additional directors and the secretary of that member of
the Group;
(ii) if relevant, the transfers referred to in paragraph (a)
above (subject only to their being duly stamped) are
approved for registration; and
(iii) its bank mandates are revised in such manner as the
Purchasers require.
8.3 Upon completion of all the matters (or waiver by the Purchasers
thereof) referred to in clause 8.2 the Purchasers shall:
(a) subject to clause 11.11 pay into the Escrow Account an amount
of (British pound)3,000,000 of the Consideration (the "Escrow
Amount");
(b) pay the remainder of the Consideration to the relevant Sellers
apportioned between them as provided in Schedule 1, such
payment to be made by transfer of funds to Cobham receipt of
which shall be a valid discharge of the Purchasers' obligations
under this sub-clause;
(c) deliver to the Sellers a duly executed counterpart of the Tax
Deed; and
(d) as evidence of the authority of each person executing a
document referred to in this clause 8 on the Purchasers behalf
an extract of the minutes of a duly held meeting of the
directors of the Purchasers (or a duly constituted committee
thereof) authorising the execution by the Purchasers of the
document and, where such execution is authorised by a committee
of the board of directors of the
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Purchasers, an extract of the minutes of a duly held meeting of
the directors constituting such committee or the relevant
extract thereof certified to be a true extract by a director or
the secretary of the Purchasers.
8.4 If any foregoing provisions of this clause 8 is not fully complied
with, the Purchasers, in the case of non-compliance by the Sellers,
or the Sellers in the case of non-compliance by the Purchasers, shall
be entitled (in addition to, and without prejudice to, all other
rights or remedies available to it, including the right to claim
damages) by written notice to the Sellers or, as the case may be, the
Purchasers, served on such date:
(a) to elect to terminate this agreement; or
(b) to effect Completion so far as practicable having regard to the
defaults which have occurred; or
(c) to fix a new date for Completion in which case the foregoing
provisions of this sub-clause shall apply to Completion as so
deferred.
9 GUARANTEES AND LOAN ACCOUNTS
9.1 The Purchasers shall use all reasonable endeavours to procure that on
Completion, or as soon as reasonably practicable following
Completion, each member of the Sellers' Group is released from all
guarantees and indemnities given, if any, by it in respect of
obligations of any of any Group Company and, pending such release,
the Purchasers shall indemnify the Sellers (for themselves and as
trustees on behalf of the relevant members of the Sellers' Group)
against all liabilities under those guarantees and indemnities.
9.2 Each of the Sellers shall use all reasonable endeavours to procure
that on Completion, or as soon as reasonably practicable following
Completion, each of the Group Companies is released from all
guarantees and indemnities given by it in respect of obligations of
each Seller and/or any member of the relevant Sellers' Group and,
pending such release, each of the Sellers shall indemnify the
relevant member of the Group against all liabilities under those
guarantees and indemnities.
9.3 The Purchasers shall procure that immediately on Completion the Group
Loans representing amounts due from the Group Companies to the
Sellers' Group are repaid on behalf of the Group Companies to Cobham
on behalf of the relevant members of the Sellers' Group.
9.4 Cobham shall procure that immediately on Completion the Group Loans
representing amounts due from the Sellers' Group to the Group
Companies are repaid on behalf of the Seller's Group to the relevant
Group Company.
9.5 The repayment of the Group Loans under this clause shall serve to
satisfy all outstanding indebtedness between the Sellers' Group and
the Group Companies and to release all outstanding liability between
them.
9.6 The Purchasers shall procure that on Completion the Group Companies
repay any indebtedness including any term loans and overdrafts (and
interest thereon) owed by the Group Companies to Barclays Bank plc in
respect of which any member of the Sellers' Group has provided a
guarantee or indemnity.
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10 PROTECTIVE COVENANTS
10.1 Each Seller covenants with each of the Purchasers for itself and as
trustee for each Group Company that it shall not, and shall procure
that no member of the Sellers' Group shall, directly or indirectly:
(a) for a period of five years from Completion be concerned in any
business which is competitive with the Restricted Business, or
any part of it, carried on by a Group Company at Completion; or
(b) for a period of five years from the date of this agreement,
directly induce or attempt to induce any director (other than a
director resigning at Completion), or employee of a Group
Company who is in receipt of an annual gross basic salary (on
the basis of full-time employment) in excess of (British
pound)25,000 to leave the employment of, or relationship with,
that Group Company or enter into any employment or services
agreement with a Seller or a member of the Sellers' Group
(otherwise than in response to a newspaper or trade
advertisement); or
(c) make use of or (except as required by law or any competent
regulatory body or stock exchange) disclose or divulge to any
third party any Confidential Information of a secret or
confidential nature relating to the business of any Group
Company; or
(d) for a period of five years from Completion, carry on the
Restricted Business or canvass or solicit orders for services
or goods being provided by any Group Company at Completion from
any person, firm or company who is at Completion a customer of
any Group Company; or
(e) use or allow to be used any trade-mark, trade name, sign, logo
or other Intellectual Property Rights owned by a Group Company
at Completion or anything confusingly similar to them (but only
in relation to the use of their own name) in any matter which
is directly competitive with the Restricted Business.
10.2 For the purpose of this clause, a Seller is concerned in a business
if it carries it on as a principal or agent or if it has any direct
or indirect financial interest as a shareholder in any person who
carries on the business. However, nothing contained in this agreement
shall preclude or restrict any Seller from holding, as a passive
investor and together with the holdings of all other members of the
Sellers' Group in such company, not more than five per cent. of the
issued share capital of any company.
10.3 The restrictions in subclause 10.1 shall not apply (or as the case
may be shall cease to apply) insofar and to the extent that any
member of the Sellers' Group after Completion acquires any company or
business and, as a result of that acquisition, acquires a company or
business which falls within the terms of the subclause 10.1 (the
"Relevant Interest") provided that:
(a) the acquisition of the Relevant Interest is not the principal
reason for such acquisition; and
(b) the Relevant Interest represents less than 10 per cent. of the
total consolidated turnover of the company or business being
acquired.
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10.4 Each of the restrictions in each paragraph or sub-clause above shall
be enforceable independently of each of the others and its validity
shall not be affected if any of the others is invalid.
10.5 If any of those restrictions is void but would be valid if some part
of the restrictions were deleted the restriction in question shall
apply with such modification as may be necessary to make it valid.
10.6 The Sellers acknowledge that the above provisions of this clause are
no more extensive than is reasonable to protect the Purchasers as the
purchasers of the Sale Shares.
10.7 Each of the Sellers shall use all reasonable efforts for five years
following Completion to direct to the Purchasers all future sales and
other opportunities it receives with respect to the Restricted
Business.
11 THE ESCROW
11.1 The Escrow Amount shall be paid at Completion into the Escrow Account
subject to clause 11.11 and the balance of the Escrow Account from
time to time, excluding for the avoidance of doubt amounts paid to
the Purchasers under this clause 11, shall be held on trust for the
Sellers absolutely.
11.2 The Escrow Amount less the aggregate sum of all paid Claims (the
"Escrow Account Release") shall be paid from the Escrow Account to
the Sellers in accordance with this clause 11 on the date 18 months
after the Completion Date (provided that, however, if that day is not
a Business Day, payment shall be made on the first day which is a
Business Day after that date) (the "Escrow Account Release Date"),
unless prior to the Escrow Account Release Date the Purchasers have
given notice to the Sellers of a Claim which in the written opinion
of a Queens Counsel which has been provided to the Sellers is more
likely to succeed than not which as at that date is or are not
settled (a "Potential Claim") and, in which event a sum equal to the
Purchasers reasonably estimated amount of such Claim or Claims shall
be retained in the Escrow Account pending settlement of such Claim or
Claims, in which case the amount of the reasonably estimated amount
of such Claim or Claims shall be deducted from the Escrow Account
Release and the remaining sum (if any) after such deduction shall be
released to the Sellers on the Escrow Account Release Date. If
proceedings in respect of the Potential Claim have not commenced
within six months of service of notice of that Claim, the Potential
Claim shall be disregarded and, if a sum is held in the Escrow
Account after the Escrow Account Release Date in respect of that
Potential Claim, that sum shall be released to the Sellers on the
first Business Day following expiry of the six month period.
11.3 Any sum which is retained pursuant to the Claim or Claims shall be
paid to the Sellers on the first Business Day following settlement of
such Claim or Claims (and if there is more than one Claim, the amount
retained in the Escrow Account for each Claim shall be dealt with and
released separately for this purpose forthwith upon settlement of the
relevant Claim).
11.4 If any amount becomes due to the Purchasers in respect of a Claim
(each an "Escrow Claim") prior to the Escrow Account Release Date as
a result of that Escrow Claim being settled in accordance with clause
11.5 below:
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(a) that amount (or where the balance of the Escrow Account is less
than that amount, that lesser amount) shall be paid to the
Purchasers out of the Escrow Account unless otherwise recovered
by the Purchasers from the Sellers; and
(b) the Sellers and the Purchasers shall promptly (and for the
avoidance of doubt within five Business Days of the date on
which the entitlement arises) instruct the bank holding the
Escrow Account to pay the relevant sum referred to in clause
11.4(a) from the Escrow Account to the Purchasers; and
(c) the amount of the Escrow Amount payable to the Sellers under
clause 11.2 shall be reduced by an amount being no greater than
the amount due to the Purchasers under any such settlement.
For the avoidance of doubt, if the Escrow Amount otherwise payable to
the Sellers is reduced by any amount in respect of an Escrow Claim
paid to the Purchasers pursuant to this clause, the Purchasers shall
not be entitled to receive the same amount from the Sellers pursuant
to any other clause of this agreement. The Sellers' liability in
respect of the Claims under the Warranties shall not be limited by
the amount of money standing to the credit of the Escrow Account from
time to time. 11.5 For the purposes of this clause 11 an Escrow Claim
shall be regarded as settled if:
(a) the Sellers and the Purchasers shall so agree in writing; or
(b) a court has awarded judgement in respect of the Escrow Claim
and the period for lodging an appeal has expired without an
appeal having been lodged or no appeal is possible; or
(c) a Tax Authority has given its final determination in respect of
any tax issue which is the subject of a Claim and that
determination is not being appealed under clause 6 of the Tax
Deed; or
(d) the Escrow Claim is withdrawn; or
(e) the Sellers are not, or are no longer, liable in respect of the
Claim under the provisions of this agreement or the Tax Deed.
11.6 Interest on the Escrow Account shall accrue from time to time on the
balance of the amounts standing to the credit of the Escrow Account
and shall be paid monthly to the Sellers.
11.7 When an amount of the principal monies in the Escrow Account is paid
to the Purchasers or the Sellers in accordance with the provisions of
this agreement, interest earned or accrued on such amount which has
not been paid out pursuant to clause 11.6 shall be paid to the
Sellers, at the time of payment of such amount.
11.8 The Sellers and the Purchasers shall procure the payment of all
amounts from the Escrow Accounts in accordance with this agreement.
11.9 If, in the event of a dispute between the Purchasers and the Sellers
in respect of any payment due under this clause 11, payment may only
then be made in accordance with an order of a court of competent
jurisdiction and on the making of such order the Purchasers and
Sellers shall give instructions to effect such transfer.
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11.10 The Sellers and the Purchasers acknowledge that any disputes between
them in relation to the Escrow Account shall be dealt with in
accordance with the provisions of this agreement.
11.11 In the event that the Escrow Account is not properly established at
Completion the Escrow Amount will be held in the client account of
Allen & Overy to the Sellers' order pending the proper establishment
of the Escrow Account. The parties will use their best endeavours to
establish the Escrow Account forthwith after Completion and as soon
as is practical after the proper establishment of the Escrow Account,
the Sellers will procure that the Escrow Amount is paid into the
Escrow Account from the Allen & Overy client account.
12 ANNOUNCEMENTS AND CONFIDENTIALITY
12.1 No party shall make or permit any person connected with it to make
any announcement concerning this sale and purchase or any ancillary
matter referred to in clause 12.2 before, on or after Completion
except with the prior written approval of the Sellers (in the case of
an announcement by the Purchasers) and the Purchasers (in the case of
an announcement by the Sellers), such approval not to be unreasonably
withheld or delayed.
12.2 The ancillary matters referred to in clause 12.1 include all
information received or obtained as a result of entering into, or
performing, this agreement which relates to:
(a) the provisions of this agreement;
(b) the discussion or negotiations relating to this agreement;
(c) the subject matter of this agreement; or
(d) the other parties or their group undertakings,
not being information for which provision is made in clause 12.3.
12.3 Clauses 12.1 and 12.2 shall not prevent the disclosure of
information:
(a) to the extent required by law or regulation or stock exchange
but in those circumstances the party required to make such
disclosure shall give to the other parties prompt written
notice where practicable and lawful to do so before it occurs
so that such disclosure shall be made after consultation with
the other parties (so far as is reasonably practicable) and
after taking into account (to the extent reasonably
practicable) the reasonable requirements of the other parties
as the timing, contents and manner of making or dispatch or so
that such other parties shall have sufficient opportunity to
avoid disclosure through appropriate legal means;
(b) to the extent that the information is in or comes into the
public domain other than as a result of a breach of any
undertaking or duty of confidentiality by any person; or
(c) to professional advisers, to the extent required for the
purpose of the businesses of the person providing it or the
Group Companies and subject to equivalent undertakings of
confidentiality or to a tax authority in connection with the
tax affairs of the disclosing party or a member of its group.
17
12.4 Notwithstanding the foregoing, the parties (and each employee,
representative, or other agent of the parties) may disclose to any
and all persons, without limitation of any kind, the tax treatment
and the tax structure of the transaction and all materials of any
kind (including opinions and other tax analyses) that are provided to
the parties relating to the tax treatment and tax structure,
beginning on the earliest of (i) the date of the public announcement
of discussions relating to the transaction, (ii) the date of public
announcement of the transaction, or (iii) the date of the execution
of an agreement (with or without conditions) to enter into the
transaction, provided, however, that none of the parties (nor any
employee, representative or other agent thereof) may disclose any
other information that is not relevant to understanding the tax
treatment and tax structure of the transaction (including if not
relevant to understanding the tax treatment and tax structure of the
transaction, the identity of any party and any information that could
lead another to determine the identity of any party), or any other
information to the extent that such disclosure could reasonably
result in a violation of any applicable securities law.
13 INTEREST
If any sum due for payment under this agreement is not paid on the due
date the party in default shall pay interest on that sum from the due
date until the date of actual payment calculated on a day to day
basis at a rate equal to the aggregate of 2 per cent. per annum above
the base rate of Barclays Bank PLC for the time being unless
expressly provided to the contrary in this agreement.
14 NOTICES
14.1 Any notice or other communication to be given under this agreement
shall be in writing and signed by or on behalf of the party giving it
and may be served by delivering it by hand or sending it by facsimile
(with a confirmatory postal notice) to the address and for the
attention of the relevant party set out in this clause 14 (or
otherwise notified from time to time hereunder). Any notice so served
shall be deemed received:
(a) in the case of delivery by hand, when delivered; and
(b) in the case of facsimile, 12 hours after the time of dispatch
subject to confirmation of its transmission being recorded by
the sender's fax machine and the dispatch of the postal
confirmation within 24 hours thereafter.
Provided that any such notice or communication which would otherwise
be deemed to be given or made outside working hours shall be deemed
to be given or made at the start of working hours in London on the
following Business Day.
14.2 The addresses of the parties for the purpose of this clause 14 are as
follows:
The Sellers:
-----------
C/o Cobham plc,
For the attention of: the Company Secretary
Address: Brook Road, Wimborne, Dorset BH21 2BJ, England
10
Fax: +44 (0) 1202 840 523
Required copy to: Allen & Overy
One New Change, London EC4M 9QQ
For the attention of: Richard Browne
Fax: +44 (0) 20 7330 9999
The Purchasers:
GSI Lumonics Inc.,
For the attention of: Tammy Ghanem,
General Counsel
Address: 39 Manning Road, Billerica, MA 01821, USA
Fax: 001 978 663 9466
Required copy to: Skadden, Arps, Slate, Meagher & Flom (UK) LLP
40 Bank Street, Canary Wharf, London E14 5DS
For the attention of: Allan Murray-Jones
Fax: +44 (0) 20 7519 7199
14.3 In proving service it shall be sufficient to prove that the envelope
containing the notice or communication was properly addressed and
delivered to the address shown thereon, or that the facsimile
transmission was made after obtaining in person or by telephone
appropriate evidence of the addressee having received the same.
14.4 Any of the Sellers or the Purchasers may notify the other of any
change to its name, address or facsimile number for the purpose of
this clause 14, provided that such notice shall only be effective on:
(a) the date specified in the notice as the date on which the
change is to take effect; and
(b) if no date is so specified or the date specified is less than
three Business Days after which such notice was given (or
deemed to be given) the day following three Business Days after
the notice was given or deemed to be given.
15 RESOLUTIONS AND WAIVERS
15.1 In relation to each Group Company the Sellers shall procure the
convening of all meetings, the giving of all waivers and consents and
the passing of all resolutions as are necessary under the Companies
Act 1985 or applicable law, or such Group Company articles of
association, by-laws or equivalent documents and each shall procure
the giving of all waivers or consents as are necessary under any
other agreement or obligation affecting it, in any such case to vest
the Sale Shares in the Purchasers (including, without limitation,
voting to remove any director who does not approve the transfer of
the Sale Shares).
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15.2 Each of the Sellers waives, (and shall procure the waiver by his
nominee(s) of) all rights of pre-emption which he (or such
nominee(s)) may have (whether under the Companies articles of
association, by-laws or equivalent documents or otherwise) in respect
of the transfer to the Purchasers or their nominee(s) of the Sale
Shares or any of them.
16 GENERAL
16.1 Each of the obligations, covenants, Warranties and undertakings given
to the Purchasers set out in this agreement and the Tax Deed which is
not fully performed at Completion shall not be affected by
Completion, except to the extent waived or released by a specific and
duly authorised written waiver or release by the Purchasers.
16.2 Unless otherwise expressly stated all payments to be made under this
agreement shall be made in sterling to such account as the receiving
party directs by notice to the paying party.
16.3 None of the rights or obligations under this agreement may be
assigned or transferred without the prior written consent of all of
the parties except that the Purchasers may assign the benefit of this
agreement (in whole or in part) to another member of the Purchasers'
Group subject to the assignee agreeing, for the benefit of the
Sellers, not to assign the benefit of this agreement (in whole or in
part) and provided that if the assignee ceases to be a member of the
Purchasers' Group then immediately prior to such event all rights
assigned to that assignee shall be deemed to have been transferred
back to the assigning Purchaser. No such assignment shall result in
any increased liability to any Seller.
16.4 Any time, date or period referred to in this agreement may be
extended by mutual agreement in writing between the Purchasers and
the Sellers but as regards any time, date or period originally fixed
or so extended, time shall be of the essence.
16.5 Each party shall pay the costs and expenses incurred by it in
connection with the entering into and completion of this agreement
including without limitation fees of solicitors, financial advisers
and accountants.
16.6 This agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same agreement and
any party may enter into this agreement by executing a counterpart.
16.7 Except in respect of the rights of the directors of the Group
Companies under clause 4.4 a person who is not a party to this
agreement may not enforce any of its terms under the Contracts
(Rights of Third Parties) Act 1999. The consent of any person who is
not a party to this agreement shall not be required to amend or
terminate this agreement.
16.8 If any term in this agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of
law, such term or part shall to that extent be deemed not to form
part of this agreement but the legality, validity or enforceability
of the remainder of this agreement shall not be affected.
16.9 No variation of this agreement shall be effective unless in writing
and signed by or on behalf of each of the parties to this agreement.
16.10 The Purchasers shall not be entitled to rescind this agreement after
Completion in any circumstances.
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17 WHOLE AGREEMENT
17.1 This agreement and the documents referred to in it to be executed by
one or more of the parties in connection with the Transaction contain
the whole agreement between the parties relating to the transactions
contemplated by this agreement and supersede all previous agreements
between the parties relating to these transactions.
17.2 Each of the parties acknowledges that in agreeing to enter into this
agreement it has not relied on any representation, warranty,
collateral contract or other assurance (except those warranties
expressly set out in this agreement) made by or on behalf of any
other party before the signature of this agreement including, without
limitation, during the course of negotiating this agreement. Each of
the parties waives all rights and remedies which, but for this
clause, might otherwise be available to it in respect of any such
representation, warranty, collateral contract or other assurance,
provided that nothing in this clause shall limit or exclude any
liability for fraud.
18 GOVERNING LAW
18.1 This agreement is governed by, and shall be construed in accordance,
with English law.
18.2 Each of the parties submits to the exclusive jurisdiction of the
English courts for all purposes relating to this agreement.
18.3 FRH hereby irrevocably appoints Cobham as its agent to accept service
of process in England in any legal action or proceedings arising out
of this agreement, service upon whom shall be deemed completed
whether or not forwarded to or received by FRH. FRH shall promptly
notify the Purchasers, in writing, of any change of address of its
process agent within 25 days. If such process agent ceases to be able
to act as such or to have an address in England, FRH irrevocably
undertakes to appoint a new process agent in England reasonably
acceptable to the Purchasers and to deliver to the Purchasers as soon
as practicable a copy of a written acceptance of appointment by the
new process agent.
18.4 The US Purchaser, hereby irrevocably appoints the UK Purchaser as its
agent to accept service of process in England in any legal action or
proceedings arising out of this agreement, service upon whom shall be
deemed completed whether or not forwarded to or received by the US
Purchaser. The US Purchaser, shall promptly notify the Sellers, in
writing, of any change of address of its process agent within 25
days. If such process agent ceases to be able to act as such or to
have an address in England, the US Purchaser, irrevocably undertakes
to appoint a new process agent in England reasonably acceptable to
the Sellers and to deliver to the Sellers as soon as practicable a
copy of a written acceptance of appointment by the new process agent.
18.5 Nothing in this agreement shall affect the right to serve process in
any other manner permitted by law.
18.6 The parties waive any objection to the English courts on grounds that
they are an inconvenient or inappropriate forum to settle any such
dispute.
18.7 Each party waives any right it may have to a jury trial of any claim
or cause of action in connection with this agreement. This agreement
may be filed as a written consent to trial by court.
21
19 SELLERS' REPRESENTATIVE
19.1 Each Seller hereby authorises Cobham to take any action and receive
all notices on its behalf as anticipated pursuant to this Agreement.
19.2 Each Seller agrees:
(i) to indemnify the Sellers' Representative in respect of any loss,
claim or expense incurred by the Sellers' Representative arising
from acts taken by him pursuant to clause 19.1; and
(ii) to hold harmless the Sellers' Representative in respect of any
loss, claim or expense incurred by the Sellers' Representative
from acts taken by him pursuant to clause 19.1 or omission in
each case or on an after-tax basis.
AS WITNESS the hands of the parties or their duly authorised officers on the
date first written on page 1 of this agreement.
22
SIGNED BY ) /s/ Warren Tucker
COBHAM PLC ) Warren Tucker
acting by a duly authorised representative )
in the presence of:- ) /s/ Alun Eynon-Evans
Alun Eynon-Evans
SIGNED BY ) /s/ Warren Tucker
FR HOLDINGS INC ) Warren Tucker
acting by a duly authorised representative )
in the presence of:- ) /s/ Alun Eynon-Evans
Alun Eynon-Evans
SIGNED BY ) /s/ Warren Tucker
LOCKMAN INVESTMENTS LIMITED ) Warren Tucker
acting by a duly authorised representative )
in the presence of:- ) /s/ Alun Eynon-Evans
Alun Eynon-Evans
SIGNED BY ) /s/ Charles Winston
GSI LUMONICS LIMITED ) Charles Winston
acting by a duly authorised representative )
in the presence of:- ) /s/ Paul Criswell Esq.
Paul Criswell Esq.
SIGNED BY ) /s/ Charles Winston
GSI LUMONICS, CORPORATION ) Charles Winston
acting by a duly authorised representative )
in the presence of:- ) /s/ Mona Bieler
Mona Bieler
23
Exhibit 99.1
PRESS RELEASE
GSI Lumonics Announces Acquisition of Westwind Air Bearings
Billerica, MA (December 10, 2003) GSI Lumonics Inc. (Nasdaq: GSLI and TSX:
LSI) has completed the acquisition of Westwind Air Bearings Limited,
(Westwind), its subsidiaries and outstanding shares from Cobham plc, an
English company. The all-cash purchase price was (British pound)21,250,000 or
approximately US$37million.
With over thirty years of experience, Westwind Air Bearings is widely
recognized as the world leader in the design, manufacture and supply of high
precision rotary motion components based on its proprietary air bearing
spindle technology. This technology provides enabling components in several
key markets for GSI Lumonics, including PCB drilling, semiconductor
manufacturing, optical scanning, and imaging for both medical and
reprographics.
Charles Winston, GSI Lumonics' President and Chief Executive Officer said,
"The Westwind acquisition is consistent with the Company's stated strategy of
expanding its product lines and technology in the laser and precision motion
components business groups. Westwind's high precision rotary motion technology
and products strengthen our position in the electronics manufacturing and
optical scanning markets at a time when these markets are recovering. It is
expected that this acquisition will be accretive to earnings during 2004".
About Westwind:
o Annual revenues: (British pound)15M or approximately US$23 million
in 2002. The Company expects revenues to be approximately US$31
million for the full year 2003, based on present performance.
o Net assets:(British pound)16M or approximately US$26 million in 2002.
o Location: Principal operations are based in Poole, England. It has a
manufacturing and service facility in Shuzhou China and sales and
service offices in the United States and Japan.
o Workforce: 350 employees.
GSI Lumonics will host a conference call for investors to discuss this
acquisition at 6 p.m. EST on Wednesday, December 10, 2003. To participate,
call 800-901-5231 (within the US and Canada) no earlier than 5:50 p.m. EST and
no later than 5:55 p.m. EST and identify yourself to the operator with the
participant code 46557792. For international callers, call 617-786-2961 with
the same participant code. A replay of the call will be available from one
hour after the call ends to midnight, December 28, 2003 at 888-286-8010. For
international callers, the replay is available at 617-801-6888. The access
code is 48981410.
The conference call also will be broadcast live over the Internet in
listen-only mode. For live webcasting, go to:
http://www.firstcallevents.com/service/ajwz394813945gf12.html at least 15
minutes prior to the call in order to register, download and install any
necessary software. The call will be archived on the above web site until
midnight, December 28, 2003.
----------------------
GSI Lumonics supplies precision motion control components, lasers and
laser-based advanced manufacturing systems to the global medical,
semiconductor, electronics, and industrial markets. GSI Lumonics' common
shares are listed on Nasdaq (GSLI) and The Toronto Stock Exchange (LSI).
Certain statements in this news release may constitute forward-looking
statements within the meaning of the United States Private Securities
Litigation Reform Act of 1995, Section 27A of the United States Securities Act
of 1933 and Section 21E of the United States Securities Exchange Act of 1934.
These forward-looking statements may relate to anticipated financial
performance, management's plans and objectives for future operations, business
prospects, outcome of regulatory proceedings, market conditions, tax issues
and other matters. All statements contained in this news release that do not
relate to matters of historical fact should be considered forward-looking
statements, and are generally identified by words such as "anticipate,"
"believe," "estimate," "expect," "intend," "plan," "objective" and other
similar expressions. Readers should not place undue reliance on the
forward-looking statements contained in this news release. Such statements are
based on management's beliefs and assumptions and on information currently
available to management and are subject to risks, uncertainties and changes in
condition, significance, value and effect. Other risks include the fact that
the Company's sales have been and are expected to continue to be dependent
upon customer capital equipment expenditures, which are, in turn, affected by
business cycles in the markets served by those customers. Other factors
include volatility in the semiconductor industry, the risk of order delays and
cancellations, the risk of delays by customers in introducing their new
products and market acceptance of products incorporating subsystems supplied
by the Company, similar risks to the Company of delays in its new products,
our ability to continue to reduce costs and capital expenditures, our ability
to focus R&D investment and other risks detailed in reports and documents
filed by the Company with the United States Securities and Exchange Commission
and with securities regulatory authorities in Canada. Such risks,
uncertainties and changes in condition, significance, value and effect, many
of which are beyond the Company's control, could cause the Company's actual
results and other future events to differ materially from those anticipated.
The Company does not, however, assume any obligation to update these
forward-looking statements to reflect actual results, changes in assumptions
or changes in other factors affecting such forward-looking statements.
For more information contact:
Investor Relations, 613-224-4868, Ann Dempsey, (ext. 5632)