1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
/ X / QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1995
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number 1-4298
COHU, INC
(Exact name of registrant as specified in its charter)
Delaware 95-1934119
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
5755 Kearny Villa Road, San Diego, California 92123
(Address of principal executive office) (Zip Code)
(619) 277-6700
Registrant's telephone number, including area code
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- -----
9,004,944
(Number of shares of common stock outstanding as of September 30, 1995)
1
2
COHU, INC.
INDEX
Part I
- ------
Financial Information:
Consolidated Balance Sheets (Unaudited)
September 30, 1995 and December 31, 1994 . . . . . . . . . . . . . 3
Consolidated Statements of Income (Unaudited)
Three and Nine Months Ended September 30, 1995 and 1994 . . . . . . 4
Consolidated Statements of Cash Flows (Unaudited)
Nine Months Ended September 30, 1995 and 1994 . . . . . . . . . . . 5
Notes to Unaudited Consolidated Financial Statements . . . . . . . 6
Management's Discussion and Analysis of
Financial Condition and Results of Operations . . . . . . . . . . . 7
Part II
- -------
Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Exhibit Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2
3
COHU, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands)
ASSETS September 30, 1995 December 31, 1994
------------------- -----------------
(Unaudited)
Current assets:
Cash and cash equivalents $20,391 $ 3,096
Accounts receivable, less allowance
for doubtful accounts 28,124 20,487
Inventories, at lower of average cost or market:
Finished goods 4,589 3,920
Work in process 9,332 8,800
Material and parts 11,523 15,721
------- -------
25,444 28,441
Deferred income taxes 3,250 3,250
Prepaid expenses 622 638
------- -------
Total current assets 77,831 55,912
Property, plant and equipment, at cost:
Land and land improvements 150 150
Buildings and building improvements 7,815 7,721
Machinery and electronic test equipment 7,655 7,314
Office furniture and fixtures 3,553 3,251
------- -------
19,173 18,436
Less accumulated depreciation and amortization 10,406 9,357
------- -------
Net property, plant and equipment 8,767 9,079
Goodwill, net 2,940 3,315
Other assets 62 62
------- -------
$89,600 $68,368
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $12,830 $ 6,382
Income taxes payable 593 1,930
Other accrued liabilities 12,411 9,520
------- -------
Total current liabilities 25,834 17,832
Long-term note payable to bank -- 1,400
Accrued retiree medical benefits 844 801
Deferred income taxes 964 964
Stockholders' equity:
Preferred stock -- --
Common stock 9,005 8,810
Paid in excess of par 2,609 2,105
Retained earnings 50,344 36,456
------- -------
Total stockholders' equity 61,958 47,371
------- -------
$89,600 $68,368
======= =======
See accompanying notes
3
4
COHU, INC.
CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except per share data)
Three Months Nine Months
Ended September 30, Ended September 30,
1995 1994 1995 1994
--------- --------- --------- ---------
(Unaudited) (Unaudited)
Net sales $ 49,035 $ 31,703 $ 126,429 $ 71,833
Cost and expenses:
Cost of sales 29,527 19,905 76,203 44,367
Research and development 2,635 2,102 7,560 5,351
Selling, general and administrative 6,411 4,600 18,499 10,970
--------- --------- --------- ---------
Income from operations 10,462 5,096 24,167 11,145
Interest income 238 -- 365 20
Interest expense -- (104) (12) (129)
--------- --------- --------- ---------
Income before income taxes 10,700 4,992 24,520 11,036
Provision for income taxes 4,200 1,960 9,600 4,200
--------- --------- --------- ---------
Net income $ 6,500 $ 3,032 $ 14,920 $ 6,836
========= ========= ========= =========
Net income per share $ .67 $ .33 $ 1.56 $ .78
========= ========= ========= =========
See accompanying notes
4
5
COHU, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
Nine Months Ended September 30,
1995 1994
-------- --------
(Unaudited)
Cash flows from operating activities:
Net income $ 14,920 $ 6,836
Adjustments to reconcile net income to net
cash provided by (used for) operating activities:
Depreciation and amortization 1,457 777
Increase in accrued retiree medical benefits 43 44
Changes in assets and liabilities, net of effects from
purchase of Daymarc:
Accounts receivable (7,637) (13,181)
Inventories 2,997 (3,668)
Prepaid expenses 16 (41)
Accounts payable 6,448 6,140
Income taxes payable (1,337) 115
Other accrued liabilities 2,891 (299)
-------- --------
Net cash provided by (used for) operating activities 19,798 (3,277)
Cash flows from investing activities:
Purchase of equipment (770) (522)
Other assets -- (30)
Purchase of Daymarc, net of cash acquired -- (3,590)
-------- --------
Net cash used for investing activities (770) (4,142)
Cash flows from financing activities:
Proceeds from long-term borrowings -- 4,000
Reduction in long-term borrowings (1,400) --
Proceeds from short-term borrowings -- 700
Issuance of stock 699 194
Dividends paid (1,032) (753)
-------- --------
Net cash provided by (used for) financing activities (1,733) 4,141
-------- --------
Net increase (decrease) in cash and cash equivalents 17,295 (3,278)
Cash and cash equivalents at beginning of period 3,096 3,911
-------- --------
Cash and cash equivalents at end of period $ 20,391 $ 633
======== ========
See accompanying notes
5
6
COHU, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1 - The accompanying financial information is unaudited but includes all
adjustments (consisting of normal recurring adjustments) which the
Company considers necessary for a fair statement of the results for the
period. The operating results for the three and nine months ended
September 30, 1995 are not necessarily indicative of the operating
results to be expected for the entire year.
2 - Per share information is based on the weighted average common and common
equivalent shares outstanding during each period. All share and per share
amounts have been retroactively restated for a two-for-one stock split
effective June 6, 1995. Shares used in the calculation of net income per
share for the three and nine month periods ended September 30, 1995 were
9,670,000 and 9,535,000 shares, respectively.
3 - On June 22, 1994 the Company acquired Daymarc Corporation, a
privately-held manufacturer of gravity feed semiconductor test handling
equipment that complements the pick and place test handling equipment
manufactured by Delta Design. The Company's consolidated financial
statements include the results of Daymarc from June 22, 1994 forward.
Assuming that the acquisition of Daymarc had occurred on the first day of
the Company's year ended December 31, 1994, pro forma condensed
consolidated results of operations for 1994 would be as follows:
Pro Forma Results of Operations
(in thousands, except per share data)
(unaudited)
Nine Months Ended
September 30, 1994
------------------
Net sales $ 84,095
Net income 8,406
Net income per share .92
These results give effect to pro forma adjustments that include the
amortization of goodwill, issuance of shares of Cohu common stock and
interest expense on long-term debt.
This pro forma information is not necessarily indicative of the actual
results that would have been achieved had Daymarc been acquired the
first day of the Company's year ended December 31, 1994.
4 - On October 17, 1995 the Company's wholly-owned subsidiary Daymarc, Inc.
entered into an agreement to acquire land and a building near Boston,
Massachusetts for approximately $4,200,000. The facility will be utilized
by the Company's Daymarc subsidiary. The transaction, which is subject to
normal closing conditions, will be funded with available cash and is
expected to be completed in November 1995.
6
7
COHU, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
The Company's results are substantially dependent on the operations of the
semiconductor test handling equipment business conducted by its wholly-owned
subsidiaries, Delta Design and Daymarc. This capital equipment business is in
turn highly dependent on the overall strength of the semiconductor industry.
Worldwide demand for semiconductors has historically been subject to substantial
cyclical swings of varying duration and magnitude, and is currently in a period
of strength. The Company's favorable results in recent periods are in large part
reflective of this current strength in the semiconductor industry. The Company
cannot predict how long the current favorable conditions in the industry will
continue. The Company's backlog can be expected to decline concurrently with or
possibly in advance of the next period of relative weakness in worldwide demand
for semiconductors. The Company attempts to keep its production capacity, labor
force and other aspects of its cost structure in line with expected demand.
THIRD QUARTER 1995 COMPARED TO THIRD QUARTER 1994
Net sales increased 55% to $49,035,000 in 1995 compared to sales of $31,703,000
in 1994. Sales of semiconductor test handling equipment increased 76% in 1995
due to increased sales of such equipment by Delta Design and Daymarc. Sales of
this equipment accounted for 83% of consolidated sales. Sales of television
cameras and equipment decreased 8% while the combined sales of metal detection
and microwave equipment increased 8% in 1995. Gross margin as a percentage of
sales increased to 40% for 1995 compared to 37% for 1994, due to a larger
percentage of total sales derived from test handling equipment that has a higher
gross margin than other products. Research and development expense increased
from $2,102,000 to $2,635,000, however, as a percentage of net sales, decreased
to 5% in 1995 from 7% in 1994. Selling, general and administrative expense
decreased to 13% in 1995 from 15% in 1994 due to the fixed component of such
costs being spread over increased net sales. The provision for income taxes
expressed as a percentage of pre-tax income was 39% in 1995 and for the year
ended December 31, 1994. Net income increased 114% to $6,500,000 in 1995 from
$3,032,000 in 1994.
NINE MONTHS 1995 COMPARED TO NINE MONTHS 1994
Net sales increased 76% to $126,429,000 in 1995 compared to sales of $71,833,000
in 1994. The increase in sales was primarily attributable to increased shipments
of semiconductor test handling equipment at Delta Design and the addition of
Daymarc's operating results for the entire 1995 period. Sales of this equipment
accounted for 80% of consolidated sales and increased 108% over the 1994 period.
Sales of television cameras and equipment increased 8%, while the combined sales
of metal detection and microwave equipment increased 7% in 1995. Gross margin
increased to 40% of sales in 1995 from 38% of sales in 1994 due to a larger
percentage of total sales derived from test handling equipment that has a higher
gross margin than other products. Research and development expense increased
from $5,351,000 to $7,560,000, however, as a percentage of sales, decreased to
6% in 1995 from 7% in 1994. Selling, general and administrative expense as a
percentage of sales remained constant at 15%. The provision for income taxes as
a percentage of pre-tax income was 39% in 1995 and for the year ended December
31, 1994. Net income increased 118% to $14,920,000 in 1995 from $6,836,000 in
1994.
7
8
COHU, INC.
LIQUIDITY - The Company's net cash flows generated from operating activities
totalled $19,798,000 for the nine months ended September 30, 1995. Accounts
receivable increased $7,637,000 due to higher sales. Inventory decreased
$2,997,000 as inventory turnover increased and accounts payable increased
$6,448,000 mainly due to purchases related to inventory. Net cash used for
investing activities was $770,000 for the purchase of equipment. Net cash used
for financing activities was $1,733,000. Cash used by financing activities
included a $1,400,000 final payment on long-term borrowings and $1,032,000 for
dividends. The Company has $3,000,000 available under its current short-term
line of credit and working capital of $51,997,000. It is anticipated that
present working capital, profitable operations and available borrowings under
the credit line will be sufficient to meet the Company's normal operating
requirements and the remaining anticipated capital expenditures for 1995 of
approximately $6,000,000.
PART II OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits:
A list of exhibits is set forth in the Exhibit Index found on page 10
of this report.
(b) Reports on Form 8-K:
The Company did not file any reports on Form 8-K during the quarter
ended September 30, 1995.
8
9
COHU, INC.
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 thereunto duly authorized.
COHU, INC.
-----------------------------
(Registrant)
Date: November 8, 1995 /s/ J.W. Barnes
----------------------------- -----------------------------
J. W. Barnes
President & Chief Executive Officer
Date: November 8, 1995 /s/ John H. Allen
----------------------------- -----------------------------
John H. Allen
Vice President, Finance & Chief
Financial Officer
9
10
COHU, INC.
EXHIBIT INDEX
Exhibit:
- --------
10.1 Purchase and Sale Agreement dated October 17, 1995 between Daymarc, Inc.
and DOE Partners, L.P.
27 Financial Data Schedule
10
1
EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
1. Premises. DOE Partners, L.P., a Delaware limited partnership with an
address at 44 Brattle Street, Cambridge, Massachusetts 02238, c/o Brattle
Advisors, L.P. ("Seller") agrees to sell, and Daymarc, Inc., a Delaware
corporation with an address of 301 Second Avenue, Waltham, Massachusetts
02154-1194, Attn: Robert Allison ("Buyer") agrees to buy upon the terms
hereinafter set forth, the premises consisting of Lot I and Lot 2 (the "Land"),
Monarch Technology Drive, Littleton, Middlesex County, Massachusetts, together
with all buildings, structures, other improvements and all appurtenant rights
(collectively, the "Premises"), all as more particularly described in Exhibit A.
The Premises shall include, without limitation, all right, title and interest of
Seller in and to all plans relating to the Land and any subdivision thereof,
including any utility plans, all construction plans and specifications relating
to the Premises, and all guaranties and warranties by, and rights against, third
parties with respect to the construction of the buildings or the furnishing or
installation of equipment or machinery therein or with respect to any and all
borings, soil tests, percolation tests and other tests and reports, site
analysis, and surveys with respect to the Land; as well as all right, title and
interest of Seller in and to all permits, certificates, variances, consents and
approvals, to the extent assignable, with respect to the Premises, including
without limitation the Title V Report and the Environmental Reports (as defined
below).
2. Title.
(a) The Premises are to be conveyed by a good and sufficient quitclaim
deed (the "Deed") running to Buyer, or to such nominee as Buyer may designated
by notice to Seller at least five days before the Time of Closing, as
hereinafter defined. The Deed shall convey good and clear record and marketable
title to the Premises, sufficient to entitle Buyer to a Certificate of Title if
the title is registered, free from encumbrances and encroachments by or on the
Premises, except:
(i) provisions of applicable laws and regulations of any
governmental authority in effect at the Time of
Closing;
(ii) such taxes for the then current tax period as are not
due and payable at the Time of Closing;
(iii) any liens for municipal betterments assessed against
the Premises; and
(iv) liens and encumbrances listed on Exhibit B (the
"Permitted Encumbrances").
2
(b) On of before October 13, 1995, Buyer may, at Buyer's sole cost and
expense, obtain a title report or commitment (the "Title Report") with respect
to, and a survey of, the Premises (the "Survey"). If Buyer objects to any
matters disclosed in the Title Report or the Survey, Buyer shall, prior to the
expiration of such period, notify Seller in writing, specifying the
objectionable matters; any such objection notice shall contain copies of the
Title Report (with copies of all instruments listed as exceptions to title to
which Buyer has objections) and the Survey. Seller may elect (but shall have no
obligation whatsoever) to undertake to cure any such matters prior to the
Closing. On or before the Termination Date (as defined below), Seller shall
notify Buyer whether Seller intends to undertake such cure. With respect to
easements, encumbrances and other matters listed on Exhibit B as Permitted
Encumbrances, Seller shall have no responsibility to remove or modify the same,
but Buyer shall be entitled to exercise its rights under Section 14 to cancel
this Agreement if Buyer is not satisfied with such Permitted Encumbrances.
Unless objected to within the periods provided in this Subsection 2(b),
any title matter listed or which could have been listed on the Title Report, and
any survey matter shown or which could have been shown on the Survey, shall be
deemed to have been approved by Buyer. If Buyer objects to any title or survey
matter within the time periods provided in this Subsection 2(b) and Seller does
not, on or before the Termination Date (as defined below) elect to undertake a
cure thereof, Buyer may exercise its rights to terminate this Agreement pursuant
to Section 14. If Seller does elect to undertake such a cure, it shall be a
condition to Buyer's obligation to close the transactions contemplated by this
Agreement that the cure shall have been effected to Buyer's reasonable
satisfaction ("Seller's Cure Obligations").
3. Price. The agreed purchase price for the Premises (the "Purchase
Price") is Four Million Two Hundred Thousand Dollars ($4,200,000), of which
$ 100,000 have been paid this day as a deposit (all such sums
paid prior to the Time of Closing are collectively
referred to hereinafter as the "Deposit"), such
Deposit to be held in escrow and applied in
accordance with Section 13 hereof,
$4,100,000 are to be paid at the Time of Closing in cash, by
certified or bank check or checks or by federal wire
transfer, of federal funds to a bank account, which
bank account (and the appropriate wiring instructions
therefor) shall be designated by Seller in a written
notice given not less than three (3) days prior to
the Time of Closing.
- ----------
$4,200,000 TOTAL
-2-
3
4. Closing. The Deed is to be delivered at 10:00 a.m. on November 15,
1995, at the offices of Ropes & Gray, One International Place, Boston,
Massachusetts 02110 unless otherwise agreed upon in writing (such time, as the
same may be extended, herein referred to as the "Time of Closing"). In addition,
the Time of Closing may be extended not more than once, by up to five (5)
business days, by Buyer or Seller by written notice to the other party, if Buyer
or Seller, as the case may be, determines, in its good faith judgment, that such
an extension is appropriate or necessary to accommodate the schedules of Buyer
or Seller, as the case may be, and its representatives. The terms "Closing",
"Closing Date" and Time of Closing" shall include any permitted extensions
thereof. It is agreed that time is of the essence of this Agreement.
5. Possession and Condition of Premises.
(a) Full possession of the Premises, free of all tenants and occupants
is to be delivered at the Time of Closing, the Premises to be then (i) in the
same condition as they now are, reasonable use and wear thereof excepted;
provided, however, that at the Time of Closing Seller shall cause the HVAC
system to be in good operating condition to the reasonable satisfaction of the
Buyer; and
(b) not in violation in any material respect of applicable building,
zoning, environmental, landmark, historic preservation, wetlands, and other
laws, codes, ordinances, by-laws, rules, regulations, and orders of governmental
authorities, which violation results from or arises out or any act or omission
of any person which occurs after the Termination Date (defined in Section 14)
below (any such violation is hereinafter referred to as a "Post-Termination Date
Violation") [i.e., with respect to any violation of the aforesaid applicable
laws, codes, ordinances, etc. which exists prior to the Termination Date, Buyer
- - by not exercising its termination rights under Section 14 hereof - shall be
deemed to have waived its rights to claim that such "pre-Termination Date
Violation" violates the provisions of this clause (ii) of Section 5; if,
however, any Post-Termination Date Violation exists as of the Closing, and
Seller does not exercise its right (although Seller has no obligation) to cure
such Post-Termination Date Violation under Section 6 hereof, Buyer shall be
entitled to exercise its rights under Section 6 to cancel this Agreement on
account of the existence of such Post-Termination Date Violation], (iii) free of
all furnishings, fixtures, equipment and personal property owned by Seller or
third parties not included in the sale of the Premises.
6. Extension. If Seller shall be unable to convey title, or to deliver
possession of the Premises, all as herein stipulated, or if at the Time of
Closing the Premises do not conform with the provisions hereof, then, Seller
shall use reasonable efforts to remove defects in title, and to deliver
possession as provided herein, and to make the Premises conform to the
provisions hereof, as the case may be, and the Time of Closing shall be extended
for a period of 30 days. Notwithstanding anything contained herein to the
contrary, Seller shall in all events be obligated to cure, remove or provide for
the satisfaction of any mortgages or other encumbrances which Seller voluntarily
or intentionally placed on the Property, whether such
-3-
4
mortgage or other encumbrance constitutes either a Pre-Termination Date
Violation or a Post-Termination Date Violation.
If at the expiration of the extended Time Seller shall have failed so
to remove any defects in title, deliver possession, or to make the Premises
conform, as the case may be, all as herein agreed, then, at Buyer's option, any
payments made under this Agreement shall be forthwith refunded and all other
obligations of all parties hereto shall cease and the Agreement shall be void
and without recourse to the parties hereto; provided, however, that Buyer shall
have the election, at either the original or extended Time of Closing, to accept
such title as the Seller can deliver to the Premises in their then condition and
to pay therefor the Purchase Price without deduction. If at the Time of Closing,
the Premises or title thereto does not conform to the provisions of this
Agreement as a result of a Post-Termination Date Violation caused by the
intentional or willful acts of Seller and as a result thereof, Buyer elects not
to accept such title as Seller can deliver, then not only shall all Deposits be
forthwith refunded with interest earned in accordance with Section 13 hereof,
but also Seller shall reimburse Buyer for all out-of-pocket expenses of Buyer
reasonably incurred in connection with the preparation and negotiation of this
Agreement and the undertaking of its due diligence under this Agreement,
including, without limitation, the legal fees and disbursements of Buyer's
attorneys, the cost of obtaining the structural and mechanical report of the
Building, the costs of obtaining a title report, and the costs of all other
reports, inspections and tests conducted by Buyer in connection with the due
diligence (such amounts to be reimbursed by Seller are hereinafter referred to
as the "Make Whole Payment"). Upon payment by Seller of the Make Whole Payment,
all obligations of the parties hereto shall cease (except for those obligations
herein which expressly survive any termination of this Agreement) and this
Agreement shall be void without any recourse to the parties hereto. Nothing
herein shall be construed to require Buyer to elect to accept such title as
Seller can deliver to the Premises in accordance with this Section.
7. Merger. The acceptance of the Deed by Buyer or the grantee designated
by Buyer, as the case may be, shall be deemed to be a full performance and
discharge of every Agreement and obligation herein contained or expresses,
except that the provisions of Paragraphs 12 and 14 shall survive for a period of
one year.
8. Use of Purchase Money. To enable Seller to convey the Premises as
herein provided, Seller may, at the Time of Closing, use the purchase money or
any portion thereof to clear the title or any or all encumbrances or interests,
provided that all instruments so produced are recorded simultaneously with the
Deed, at Seller's expense.
9. Fire, Casualty and Condemnation.
(a) The risk of loss, damage or destruction to the Premises by fire or
other casualty until the Time of Closing is retained by Seller, but without any
obligation or liability by Seller to repair or restore the Premises. Seller
shall maintain in effect through the Time of Closing,
-4-
5
policies of fire and casualty insurance in an amount equal to the full insurable
value of the buildings and other improvements on the Premises, less a deductible
in the amount of Fifty Thousand Dollars ($50,000.00) or less with a replacement
cost endorsement.
If at any time prior to the Time of Closing, any portion of the
Premises is destroyed or damaged as a result of (a) a fire or any other casualty
(hereinafter collectively referred to as "Casualty"), or (b) a taking in eminent
domain (hereinafter referred to as "Taking"), Seller shall promptly give written
notice thereof (hereinafter referred to as the "Damage Notice") to Buyer
including a statement by an independent contractor reasonably selected by Seller
of its estimate (hereinafter referred to as the "Estimate") of the cost of fully
repairing and restoring the Premises (to the extent practicable) to the
condition which existed prior to the Casualty or Taking, as the case may be. The
Estimate shall be conclusive and binding upon Buyer and Seller. Any damage to or
destruction of the Premises as a result of a Casualty or Taking shall be deemed
to be immaterial if the Estimate is Five Hundred Thousand Dollars ($500,000.00)
or less. In such event, neither party shall have the right to terminate this
Agreement and there shall be no abatement in the Purchase Price (although Buyer
shall be entitled to a credit against the Purchase Price in the amount of the
applicable deductible), and in lieu of any such abatement, Seller shall execute,
acknowledge and deliver to Buyer at the Closing, in counterparts, an assignment,
expressly made without representation or warranty by Seller and without recourse
to Seller, of Seller's interest in any net insurance or condemnation proceeds
(that is, after expense of collection) which may be payable to Seller as a
result of such Casualty or Taking, subject, however to Seller's right to receive
reimbursement therefrom of any amounts reasonably paid or incurred by Seller for
or on account of repairs and/or restoration of the Premises prior to the
Closing. If a holder of a mortgage on the Premises shall not permit the
insurance proceeds or a part thereof to be used to restore the Premises to its
former condition or to be so paid over or assigned, then Seller shall, on
delivery of the Deed, give to Buyer (A) a credit against the Purchase Price
equal to said amounts recovered or recoverable and retained by the holder of
such mortgage and (B) a credit against the Purchase Price equal to the amount of
such deductible.
If there shall be material (i.e., the Estimate is more than
Five Hundred Thousand Dollars ($500,000.00)) damage to, or destruction
of, the Premises as a result of a Casualty or Taking prior to the
Closing, Buyer and Seller shall each have the right to terminate this
Agreement by providing written notice to the other Party within ten
(10) days after Buyer's receipt of the Damage Notice from Seller. Upon
such termination, Seller shall return to Buyer the Deposit and upon
such return of the Deposit, all claims and obligations of the Parties,
except as otherwise expressly provided herein, shall be immediately
released and discharged. If neither Buyer nor Seller elects to
terminate this Agreement in accordance with the foregoing terms of this
Section, there shall be no abatement in the Purchase Price (although
Buyer shall be entitled to a credit against the Purchase Price in the
amount of the applicable deductible), and in lieu of any such
abatement, Seller shall execute, acknowledge and deliver to Buyer at
the Closing, in counterparts, an assignment, expressly made without
-5-
6
representation or warranty by Seller and without recourse to Seller, of
Seller's interest in any net insurance or condemnation proceeds (that
is, after expense of collection) which may be payable to Seller as a
result of such Casualty or Taking, subject, however to Seller's right
to receive reimbursement therefrom of any amounts reasonably paid or
incurred by Seller for or on account of repairs and/or restoration to
the Premises prior to the Closing. If a holder of a mortgage on the
Premises shall not permit the insurance proceeds or a part thereof to
be used to restore the Premises to its former condition or to be so
paid over or assigned, then Seller shall, on delivery of the Deed, give
to Buyer (A) a credit against the Purchase Price equal to said amounts
recovered or recoverable and retained by the holder of such mortgage
and (B) a credit against the Purchase Price equal to the amount of such
deductible.
10. Adjustments. Taxes for the then current tax period shall be
apportioned with Seller responsible for all taxes up to and including the
Closing Date and Buyer responsible for all taxes thereafter, as of the Time of
Closing and the net amount thereof shall be added to or be deducted from, as the
case may be, the Purchase Price payable by Buyer at the Time of Closing. In
addition to such adjustments, there will be a deduction from the Purchase Price
in the amount of $72,080 representing an allowance for certain demolition and
repair work to be done in the building and in the amount of $10,000 as an
allowance for modular furniture.
If the amount of said taxes has not been determined at the Time of
Closing, they shall be apportioned on the basis of the most recent tax rate and
assessment available, with a reapportionment as soon as the new tax rate and
valuation can be ascertained; and, if the taxes which are to be apportioned
shall thereafter be reduced by abatement, the amount of such abatement less the
reasonable cost of obtaining same, shall be apportioned between the parties,
provided that neither party shall be obligated to institute or prosecute
proceedings for an abatement unless otherwise agreed. The party commencing
abatement proceedings shall give the other party notice thereof and shall
prosecute such proceedings and not discontinue them without first giving the
other party notice of its intention so to do and reasonable opportunity to be
substituted in such proceedings; and the other party agrees to cooperate in such
proceedings without being obligated to incur any expense in connection
therewith. The term "cooperate" as used in the last preceding sentence shall
include the signing of any and all applications or petitions for such
proceedings which are required to be brought in the name of Seller. The
provisions of this paragraph shall survive the Closing.
11. Closing Documents. Seller shall deliver to Buyer at or before the Time
of Closing the following documents, duly executed (and acknowledged where
appropriate) by or on behalf of Seller: the Deed; copies of all surveys, plans
and specifications and studies in the possession of Seller relating to the
Premises; such title affidavits regarding partes in possession and indemnities
regarding mechanics' liens as Buyer's title insurer may reasonably require in
order to delete exceptions regarding such matters from its title insurance
coverage; and such certifications as may be reasonably necessary for compliance
with Internal Revenue Service regulations, a copy of Seller's limited
partnership agreement and certificate of limited
-6-
7
partnership certified by a general partner; and a certificate of the corporate
secretary of Seller's general partner evidencing the authority and incumbency of
the officers of Seller's general partner to execute the Deed and all other
documents in connection with the sale of the Premises.
Seller shall pay for the necessary documentary stamps at Closing and
for the cost of recording any instruments required to clear title. Buyer shall
pay for the recording of the Deed (not including the cost of documentary stamps)
and any other instruments to be recorded.
12. Brokers. Seller and Buyer acknowledge that a brokerage commission shall
be due to Charles H. Detwiller, III of Neelon Associates, Inc. upon the
recording of the Deed and the payment of the Purchase Price all in accordance
with a separate letter Agreement between Seller and said broker. Seller and
Buyer mutually represent and warrant that neither Seller nor Buyer knows of any
other broker who has claims or may have the right to claim a commission in
connection with this purchase and sale. Seller and Buyer each agree to indemnify
and hold the other harmless from and against any liability, loss, cost, damage,
or expense, including court costs and reasonable attorney's fees, resulting from
the breach of the above representation and warranty.
13. Deposit. The Deposit shall be held by Ropes & Gray in an
interest-bearing, escrow account, shall be duly accounted for at the Time of
Closing. Unless otherwise set forth in this Agreement, interest earned on the
Deposit shall be paid to the party who is entitled to receive the Deposit.
The parties acknowledged that Seller has no adequate remedy at law in
the event of Buyer's failure to fulfill its obligation hereunder because it is
impossible to compute exactly the damages which would accrue to the Seller in
such event. The parties have therefore taken these facts into account in setting
the amount of the Deposit and hereby agree that: (i) the Deposit is the best
estimate of such damages which would accrue to Seller; (ii) the Deposit
represents damages and not any penalty against Buyer and (iii) if Buyer shall
fail to fulfill Buyer' obligations hereunder, the Deposit shall be retained by
Seller as its full and liquidated damages in lieu of all other rights and
remedies which Seller may have against Buyer at law or in equity for such
failure.
14. Buyer's Due Diligence; Seller's Actions Pending Closing.
(a) Except as expressly set forth in this Agreement, Buyer acknowledges
that Seller has made no representations or warranties with respect to the
Premises including, without limitation, the value, quality or character of the
Premises and/or the physical and environmental condition thereof. Buyer
acknowledges that, except as expressly set forth in this Agreement, neither
Seller not any officer, employee, consultant or other person representing or
purportedly representing Seller has made, and Seller is not liable for or bound
-7-
8
in any manner by, any express or implied warranties, guaranties, promises,
statements, inducements, or representations pertaining to the physical and/or
environmental condition or state of title thereof, the income, collectability or
legality of rents, expenses and operation thereof, the uses which can be made of
the same or any other matter to thing with respect thereto. Without limiting the
foregoing, Buyer acknowledges and agrees that, except as expressly set forth in
this Agreement Seller is not liable or bound by (and Buyer has not relied upon)
any verbal or written statements, representations or any other information
concerning the Premises, furnished by Seller or any past or present officer,
employee, consultant or other person representing or purportedly representing
Seller. Buyer agrees, further, that Seller shall not be responsible for any
statements or representations of any kind furnished to Buyer by any real estate
broker or any other person or entity except as specifically set forth herein.
(b) Buyer acknowledges that it has received from Seller a copy of the
Environmental Reports listed on Exhibit D (the "Environmental Reports") hereto
and the Title V Report, and Buyer further acknowledges that: (i) it is
purchasing the Premises subject to the matters reflected in said reports, (ii)
prior to the Closing it will treat as confidential all matters reflected in said
reports, and (iii) Seller has made no representation, warranty or covenant of
any nature whatsoever with respect to said reports, including but not limited
to, the completeness or accuracy of said reports and Seller shall have no
lability whatsoever with respect to said reports.
(c) Buyer and its consultants who are designated in writing by Buyer to
Seller ("Consultants") shall have the right to enter the Premises on reasonable
advance notice to Seller (i.e. to Greg Sullivan, c/o Winstanley Enterprises,
P.O. Box 710, 100 Main Street, Concord, Massachusetts 01742; Tel: (508)
287-5000), to conduct at such times and on such dates acceptable to Seller such
engineering inspections and investigations as Buyer shall deem necessary to
determine, at its sole discretion, the suitability of the Premises, the cost of
which inspections and investigations shall be borne exclusively by Buyer. Any
such inspections and/or investigations shall be diligently performed in a manner
which will not interfere with the use or operation of the Premises, and in the
presence of such representatives as shall be designated by Seller. Buyer agrees
to restore the Premises to the extent disturbed by any such inspections and/or
investigations, and to provide Seller with a copy of any report produced as a
result of such investigations and/or inspections (a "Report") within five (5)
days of Buyer's receipt of same. Notwithstanding the foregoing, should Buyer
contemplate the performance of any intrusive or destructive testing or soil
investigations, Buyer must first obtain the prior written consent of Seller,
which consent may be subject to such restrictions and requirements as Seller, in
its sole discretion, may determine.
Buyer hereby agrees to defend, indemnify and hold Seller harmless from
and against any and all claims, liabilities, damages, losses, causes of action
and/or obligations arising out of or in any manner directly or indirectly
connected with the entry upon the Premises by Buyer and/or the Consultants
except for losses caused by Seller's negligence. Prior to Buyer's or any
Consultant's entry on the Premises, Buyer shall furnish to Seller a certificate
naming
-8-
9
Seller as an additional insured on Buyer's and/or Consultant's commercial
general liability policy, which policy must be in form, scope and substance, and
with a company, reasonably satisfactory to Seller, in an amount of at least
$2,000,000.00.
(d) During the period from the date hereof until the Time of
Closing:
(i) Seller shall cooperate fully with Buyer, at Buyer's
sole expense, with respect to Buyer's investigation
of the due diligence matters, including executing
governmental applications as reasonably required by
Buyer for Buyer's intended uses, provided that no
such applications involve out-of-pocket expense to
Seller or require endorsement of Buyer's project by
Seller.
(ii) Seller shall provide Buyer promptly with any written
notices received by Seller indicating (A) violations
of any governmental law or regulation regarding the
Premises, (B) eminent domain proceedings regarding
the Premises, or (C) betterment assessment regarding
the Premises.
(iii) Seller shall not, without the prior written consent
of Buyer in each case:
(A) enter into or agree to enter into any lease
or other agreement concerning occupancy or
use of any of the Premises or other
agreement concerning operation or ownership
of, or property interests in, any of the
Premises; and
(B) Seller shall not submit or withdraw any
application for any permits, licenses or
approvals from federal, state or local
government agencies in connection with
development or use of the Premises for
Buyer's intended uses or otherwise take or
omit to take any action which would
adversely affect the Buyer's ability to
develop the Premises for Buyer's intended
uses.
(iv) Seller shall (A) maintain in full force and effect
the existing fire, casualty and liability insurance
policies relating to the Premises and (B) keep the
Premises in the condition it is in on the date of
this Agreement except for damage caused by casualty
and work to be performed by Seller hereunder.
(v) Seller shall cooperate with Buyer in obtaining
as-built plans for the Premises including executing
any releases required by architects or contractors.
-9-
10
(e) Buyer shall have the right, as a result of its decision based on
its investigations and/or inspections of the Premises to terminate this
Agreement by giving written notice to Seller on or before October 16, 1995 (time
being of the essence) (the "Termination Date"). Buyer covenants and agrees with
Seller that Buyer will keep and treat as confidential, to the extent permitted
by applicable law, all information and data learned and obtained by Buyer
through its own or its Consultant's investigations of the Premises, and Buyer
shall, to the extent permitted by applicable law, cause its Consultants to do
likewise.
(f) In the event Buyer notifies Seller in writing, which notice is
received by Seller on or before the Termination Date (time being of the
essence), that it has terminated this Agreement, this Agreement shall be deemed
canceled and thereafter neither party shall have any further rights against, or
obligations or liabilities to, the other by reason of this Agreement, except
that Seller shall refund to Buyer the Deposit, and except for obligations
pursuant to the provisions of this Agreement which expressly state that such
provisions survive the termination of this Agreement. If Buyer fails to give
notice of cancellation by the Termination Date (time being of the essence) or in
the event the notice of cancellation is not received by Seller on or before the
Termination Date (time being of the essence), then Buyer shall be deemed to have
waived Buyer's right to cancel this Agreement and to receive a refund of the
Deposit by reason of the contingency contained in this Section and this
Agreement shall remain in full force and effect.
(g) In the event this Agreement is not canceled pursuant to the
provisions of Subsections 2(b) or 14(f) or Section 6 hereof, Buyer acknowledges
and agrees that it knows the condition, value, quality and character of the
Premises and has satisfied itself that the present use thereof is in compliance
with all applicable zoning ordinances, and is purchasing, and, is willing to
accept, the Premises on an "AS IS", "WHERE IS" basis, that is, in the condition
existing on the date hereof and on the Closing Date, subject, however, to
Seller's specific representations and warranties hereunder, Seller's performance
of the work described in Section 5 hereof and Seller's Cure Obligations, if any,
and there being no uncured Post-Termination Date Violations.
(h) Except as set forth in Section 5 hereof, nothing in this Agreement
shall require Seller to incur any expense of any kind whatsoever to repair,
restore, or otherwise cure any condition or state of facts with respect to the
Premises.
(i) Buyer acknowledges that it is responsible for obtaining all
permits, approvals or other authorizations or entitlements required by any
federal, state or local government for Buyer's use of the Premises.
The provisions of this Section shall survive the Closing and the
Delivery of the Deed or the earlier termination of this Agreement.
-10-
11
15. Seller's Representations and Warranties. Seller represents, warrants
and covenants to Buyer as follows:
(a) Seller is duly organized, validly existing and in good standing
under the laws of the State of Delaware and is qualified to do business in the
Commonwealth of Massachusetts.
(b) Seller has all requisite and necessary power and authority to
execute and deliver this Agreement and to perform Seller's obligations
hereunder.
(c) The execution, delivery and performance by Seller of its
obligations under this Agreement will not result in a breach of any of the terms
or provisions of, or constitute a default (or a condition which, upon notice or
lapse of time or both, would constitute a default) under any Agreement,
instrument or obligation to which Seller is a party or by which Seller is bound
and will not constitute a violation of any law, regulation, order, judgment,
writ, injunction or decree applicable to Seller of any court or other
governmental authority having jurisdiction over Seller.
(d) There are no judgments, actions, suits or proceedings existing or
pending (or, to the knowledge of Seller, threatened) against Seller or the
Premises, at law or in equity, before or by any governmental authority having
jurisdiction over Seller, which could have a material and adverse effect upon
its performance of this Agreement.
(e) This Agreement is the legal and binding obligation of Seller,
enforceable against Seller in accordance with its terms, subject to general
principles of equity, bankruptcy, reorganization and other similar laws
affecting the enforcement of contracts generally.
(f) There are no current leases or other occupancy agreements in
existence, nor are there any tenants, with respect to any portion of the
Premises.
(g) The Land is the only real property owned by Seller in, the Town of
Littleton.
(h) There are no suits, actions or proceedings pending or, to the best
of Seller's knowledge, threatened against or affecting the Premises before any
court or administrative agency or officer which, if adversely determined, would
have a materially adverse effect upon the operation or condition, financial or
otherwise, of the Premises, including, but not limited to, any eminent domain
proceedings, and to the best of Seller's knowledge, Seller is not in default
with respect to, nor has notice of violation of, any judgment, order, writ,
injunction, rule or regulation of any court or governmental agency or officer to
which Seller is subject in any way affecting the Premises or the transactions
provided for herein.
(i) There are no agreements or contracts, including, without
limitation, employment contracts, affecting any of the Premises or any use of
the Premises that would not be terminable at will by Buyer without penalty from
and after the Closing.
-11-
12
(j) Other than miscellaneous work which Seller shall pay for in full,
no work has been done on the Premises which could give rise to any liens under
Massachusetts General Laws Chapter 254, and no contracts are outstanding or in
effect with respect to the doing of any such work. Without limiting the
foregoing, Seller shall remain liable after the delivery of the Deed hereunder
for all obligations incurred or contracted by Seller prior to Closing, for labor
and materials furnished in connection with work and construction at the
Premises. Seller agrees to discharge all such obligations prior to delivery of
the Deed, but will indemnify fully Buyer against all claims and expenses
(including reasonable attorney's fees) based upon Seller's failure to discharge
any or all of such obligations.
(k) Buyer represents, covenants and warrants to Seller that Buyer has
the legal right, power and authority to enter into this Agreement and to perform
all of its obligations hereunder, and the execution and delivery of this
Agreement and the performance by Buyer of its obligations hereunder: (i) have
been duly authorized by all requisite corporation action; and (ii) will not
conflict with, or result in any breach of, any of the terms, covenants and
provisions of the Buyer's or bylaws or any law or any regulation, order,
judgment, writ, injunction or decree of any court of governmental authority, or
any agreement or instrument to which Buyer is a party or by which it is bound.
16. Tax Free Exchange. Buyer acknowledges that Seller intends to exchange
the Premises or property not yet identified pursuant to a structure which will
qualify as a tax free exchange under the Internal Revenue Code, as amended (the
"Code"). Further, if the property to be exchanged for has not been identified at
the Time of Closing, the Seller intends to takes such steps at the Time of
Closing as are necessary in order for Seller to qualify for a so-called deferred
or delayed exchange under the Code.
Buyer agrees that it will cooperate with Seller in accomplishing to
transaction described in the foregoing paragraph and in connection therewith
will execute such other agreements and take such other actions as Seller may
reasonably request provided, however, that in no event shall Buyer be required
to incur any cost or expenses in connection therewith (except such legal costs
as it may incur by reason if its counsel's review of any such Agreement).
17. Buyer's Remedies for Seller's Default
(a) If Seller fails to perform or observe any of its covenants and
agreements under this Agreement, which failure shall continue until the time of
Closing, then Buyer may either (as its sole and exclusive remedy in either case)
by giving notice to Seller.
(i) terminate this Agreement, in which event Buyer shall
be entitled to the immediate return of the Deposit
and all earnings thereof in accordance with Section
13 hereof, whereupon this Agreement shall be of no
further
-12-
13
force and effect and neither Buyer nor Seller shall
have any further rights, obligations, or liabilities
hereunder; or
(ii) exercise the right to bring an action in specific
performance to compel Seller to perform this
Agreement. Buyer shall not be entitled to recover any
damages, whether direct, indirect or consequential.
18. General
(a) No offer. The submission of a draft of this Agreement or a summary
of some or all of its provisions does not constitute an offer to buy or to sell
the Premises, it being understood and agreed that neither Buyer nor Seller shall
be legally obligated with respect to a purchase or sale of the Premises unless
and until this Agreement has been executed by both Buyer and Seller and a fully
executed copy has been delivered to both.
(b) Severability. The invalidity of any provision of this Agreement
shall in no way affect the validity of any other provision.
(c) Successors and Assigns. This Agreement is binding upon and shall
inure to the benefit of the parties hereto and their heirs, successors, personal
representatives and assigns.
(d) Notices. All notices required or permitted to be given hereunder
(except notices indicating the time for Buyer's access to the Property) shall be
in writing and sent (a) by certified, registered or express mail, postage
prepaid, return receipt requested, (b) hand delivered, (c) by overnight courier
service, or (d) by telecopy, addressed as follows:
If to Seller: DOE PARTNERS, L.P.
c/o Brattle Advisors, L.P.
44 Brattle Street
Cambridge, MA 02238
Attn: Samuel Plimpton
Tel: (617) 576-5300
Fax: (617) 497-8717
with a copy to: Ropes & Gray
One International Place
Boston, MA 02108
Attn: Francis X. Hanlon, Esq.
Tel: (617) 951-7232
Fax: (617) 951-7050
-13-
14
If to Buyer: Daymarc, Inc.
301 Second Avenue
Waltham, MA 02154-1194
Attn: Robert Allison
Tel: (617) 890-2345
(617) 890-4229
with copies to: Cohu, Inc.
5755 Kearny Villa Road
P.O. Box 85623
San Diego, CA 92186-5623
[for overnight delivery: San Diego, CA 92123)
Attn: John Allen
Charles Schwan
Tel: (619) 277-6700
Fax: (619) 277-9412
Palmer & Dodge
One Beacon Street
Boston, MA 02108
Attn: Thomas G. Schnorr, Esq.
Tel: (617) 573-0363
Fax: (617) 227-4420
If to Broker: Charles H. Detwiller III
Nealon Associates
255 Bear Hill Road
Waltham, MA 02154
Tel: (617)
Fax: (617-890-0767
or to such other address or addresses as the parties may designate from time to
time by notice provided in accordance with this provision. Any such notices
shall be effective upon receipt of the same by the party to whom the notice is
directed.
(e) Interpretation. This Agreement is to be construed as a
Massachusetts contract, sets forth the entire contract between the parties, and
may not be canceled, amended, or waived except in writing.
(f) If Seller or Buyer executes this Agreement in a representative or
fiduciary capacity, only the principal or the estate represented shall be bound
and neither the Seller or Buyer so executing, nor any shareholder or beneficiary
of any trust, nor any officer or
-14-
15
shareholder of any corporation, shall be personally liable for any obligation,
express or implied, hereunder.
(g) This Agreement may be executed in counterparts each of which shall
be deemed an original.
-15-
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their behalf as of the date and year first above written.
SELLER:
DOE PARTNERS, L.P.
By: CA Collection Inc., a general partner
By: Samuel Plimpton
-----------------------
BUYER:
DAYMARC, INC.
By: Charles Schwan
------------------------
ESCROW AGENT:
ROPES & GRAY
By: Francis X. Hanlon
------------------------
-16-
17
EXHIBIT A
The property descriptions are set forth as Schedule C to the policy of
title insurance issued by Ticor Title Insurance Company dated August 17, 1995
(Policy No. 9563-00626) and as Schedule C to a title insurance commitment issued
by Chicago Title Insurance Company dated August 24, 1995 (Policy No.
9551-00897). Such title insurance policy and commitment are attached hereto.
-17-
18
EXHIBIT B
Reference is made to the title insurance policy and title commitment
described on Exhibit A to this Agreement. The Permitted Encumbrances are as set
forth in Schedule B to the title insurance policy no. 9563-00626 and Items 5
through 8 on Schedule B, Section 2 of title insurance commitment no. 9551-00897.
Notwithstanding any other provision of this Agreement, it is agreed
that on the Closing Date Buyer shall receive credits equal to (a) the
outstanding assessment for water mains as shown on a current municipal lien
certificate for Lot 2, plus (b) fifty percent (50%) of the outstanding
assessment for water mains as shown on a current municipal lien certificate for
Lot I.
-18-
5
1000
9-MOS
DEC-31-1994
SEP-30-1995
20,391
0
28,124
0
25,444
77,831
19,173
10,406
89,600
25,834
0
9,005
0
0
52,953
89,600
126,429
126,429
76,203
102,262
0
0
12
24,520
9,600
14,920
0
0
0
14,920
1.56
0
