CONFIDENTIAL — ATTORNEY WORK PRODUCT
FORM OF OFFICER'S CERTIFICATE OF HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT
Delivered Pursuant to Section [___] of the Agreement and Plan of Merger
[This is a blank form prepared by Calderwood & Harkness LLP for completion and delivery at the Closing. Bracketed items and blanks are to be completed at the time of execution.]
This Officer's Certificate (this "Certificate") is delivered pursuant to Section [_] of that certain Agreement and Plan of Merger, dated as of August 10, 2023 (as may be amended, supplemented, or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), by and among Halcyon Semiconductor Aktiengesellschaft, a stock corporation (Aktiengesellschaft) organized under the laws of the Federal Republic of Germany ("Parent"), Halcyon Acquisition Sub, Inc., a corporation organized under the laws of the State of Delaware and a wholly owned subsidiary of Parent ("Merger Sub"), and Vectris Photonics, Inc., a corporation organized under the laws of the State of Delaware (the "Company").
Capitalized terms used but not otherwise defined in this Certificate shall have the respective meanings ascribed to such terms in the Merger Agreement.
RECITALS
A. The Merger Agreement provides for the merger of Merger Sub with and into the Company (the "Merger"), with the Company surviving the Merger as a wholly owned subsidiary of Parent, upon the terms and subject to the conditions set forth in the Merger Agreement and in accordance with the applicable provisions of the General Corporation Law of the State of Delaware (the "DGCL"). At the effective time of the Merger (the "Effective Time"), each issued and outstanding share of common stock of the Company (other than shares owned by Parent, Merger Sub, or the Company, and other than Dissenting Shares (as defined in the Merger Agreement)) shall be converted into the right to receive the Merger Consideration as set forth in, and subject to the terms and conditions of, the Merger Agreement.
B. Section [_] of the Merger Agreement provides, as a condition precedent to the obligation of the Company to consummate the Merger and the other transactions contemplated by the Merger Agreement, that Parent shall deliver, or cause to be delivered, to the Company at the Closing a certificate signed by a duly authorized officer of Parent, certifying as to the matters set forth herein, including the satisfaction of the conditions set forth in Section [_] of the Merger Agreement relating to the accuracy of the representations and warranties of Parent and Merger Sub contained in the Merger Agreement and the performance by Parent and Merger Sub of their respective covenants and agreements required to be performed at or prior to the Closing.
C. The undersigned is a duly authorized officer of Parent and is delivering this Certificate on behalf of Parent and Merger Sub, and not in any individual capacity, on the Closing Date in satisfaction of the condition set forth in Section [_] of the Merger Agreement.
The Closing is occurring on [__], 20[__] (the "Closing Date").
NOW, THEREFORE, the undersigned hereby certifies as follows:
SECTION 1: CERTIFICATION REGARDING REPRESENTATIONS AND WARRANTIES
The undersigned hereby certifies, on behalf of Parent and Merger Sub (and not in any individual capacity), as follows:
(a) The representations and warranties of Parent and Merger Sub set forth in Article [_] of the Merger Agreement that are qualified as to materiality or "material adverse effect" (or any similar qualification or standard) are true and correct in all respects as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation or warranty expressly relates to a specified earlier date, in which case such representation and warranty was true and correct in all respects as of such earlier date). Without limiting the generality of the foregoing, the representations and warranties of Parent and Merger Sub relating to the organization and good standing of Parent and Merger Sub, the authorization, execution, and delivery of the Merger Agreement, the capitalization of Merger Sub, the absence of conflicts with organizational documents and applicable law, and the availability and sufficiency of funds to consummate the Merger and the other transactions contemplated by the Merger Agreement, in each case to the extent qualified as to materiality or material adverse effect, are true and correct in all respects as of the Closing Date (or, if applicable, as of the earlier date to which such representation or warranty expressly relates).
(b) The representations and warranties of Parent and Merger Sub set forth in Article [_] of the Merger Agreement that are not qualified as to materiality or "material adverse effect" (or any similar qualification or standard) are true and correct in all material respects as of the Closing Date as though made on and as of the Closing Date (except to the extent that any such representation or warranty expressly relates to a specified earlier date, in which case such representation and warranty was true and correct in all material respects as of such earlier date). Without limiting the generality of the foregoing, each representation and warranty of Parent and Merger Sub contained in Article [_] of the Merger Agreement that does not contain any qualification as to materiality, material adverse effect, or any similar standard, including representations and warranties relating to the operations of Merger Sub, the absence of certain legal proceedings, compliance with applicable regulatory requirements, and the accuracy of information supplied by Parent and Merger Sub for inclusion in the Proxy Statement (as defined in the Merger Agreement), is true and correct in all material respects as of the Closing Date (or, if applicable, as of the earlier date to which such representation or warranty expressly relates).
(c) Since the date of the Merger Agreement, there has not been any event, change, effect, development, condition, circumstance, or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on the ability of Parent or Merger Sub to consummate the transactions contemplated by the Merger Agreement, including the Merger, or to perform their respective obligations under the Merger Agreement. Without limiting the foregoing, since the date of the Merger Agreement, neither Parent nor Merger Sub has experienced any event, change, effect, development, condition, circumstance, or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a material adverse effect on (i) the ability of Parent to pay the aggregate Merger Consideration at or prior to the Effective Time, (ii) the ability of Parent or Merger Sub to obtain or maintain any consent, approval, order, or authorization of, or complete any registration, declaration, or filing with, any Governmental Entity (as defined in the Merger Agreement) required in connection with the consummation of the Merger and the other transactions contemplated by the Merger Agreement, or (iii) the ability of Parent or Merger Sub to perform their respective obligations under the Merger Agreement in all material respects.
[Confirm applicable section cross-references to Article [_] of the Merger Agreement containing Parent's and Merger Sub's representations and warranties prior to execution. For reference, the representations and warranties of Parent and Merger Sub are currently set forth in Article V of the Merger Agreement, Sections 5.01 through 5.12.]
SECTION 2: CERTIFICATION REGARDING COVENANTS AND AGREEMENTS
The undersigned hereby certifies, on behalf of Parent and Merger Sub (and not in any individual capacity), as follows:
(a) Each of Parent and Merger Sub has performed or complied in all material respects with all covenants, obligations, and agreements required to be performed or complied with by it under the Merger Agreement at or prior to the Closing Date. Without limiting the generality of the foregoing, each of Parent and Merger Sub has performed or complied in all material respects with the covenants and agreements set forth in the following provisions of the Merger Agreement, in each case to the extent required to be performed or complied with at or prior to the Closing Date:
(i) Section [_] of the Merger Agreement (Efforts to Consummate; Regulatory Approvals), including the obligation to use reasonable best efforts (or such other standard of effort as is specified in the Merger Agreement) to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper, or advisable under applicable law to consummate and make effective, as promptly as practicable, the Merger and the other transactions contemplated by the Merger Agreement, including the obligation to make all filings and obtain all consents, approvals, authorizations, permits, orders, and waivers from Governmental Entities required in connection with the consummation of the Merger;
(ii) Section [_] of the Merger Agreement (Financing), including the obligation to use reasonable best efforts (or such other standard of effort as is specified in the Merger Agreement) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable to obtain the Financing (as defined in the Merger Agreement) on the terms and conditions described in the Commitment Letter (as defined in the Merger Agreement), or, if alternative financing is required, on terms and conditions no less favorable to Parent in the aggregate than those contained in the Commitment Letter, and to maintain in effect the Commitment Letter (or any permitted replacement thereof) through the Closing;
(iii) Section [_] of the Merger Agreement (Employee Matters), to the extent any pre-Closing covenants of Parent or Merger Sub are set forth therein;
(iv) Section [_] of the Merger Agreement (Indemnification; Directors' and Officers' Insurance), to the extent any pre-Closing covenants of Parent or Merger Sub are set forth therein;
(v) Section [_] of the Merger Agreement (Public Announcements), including the obligation to consult with the Company prior to issuing any press release or other public statement with respect to the Merger Agreement or the transactions contemplated thereby; and
(vi) all other covenants and agreements of Parent and Merger Sub contained in the Merger Agreement that are required to be performed or complied with at or prior to the Closing Date.
[Cross-reference the specific covenant sections of the Merger Agreement, including Section [_] (Efforts to Consummate; Regulatory Approvals), Section [_] (Financing), and other pre-closing covenants of Parent and Merger Sub. The pre-closing covenants of Parent and Merger Sub are currently set forth in Article VI of the Merger Agreement.]
SECTION 3: LIMITATION OF LIABILITY; NO PERSONAL LIABILITY
This Certificate is being delivered by the undersigned solely in his or her capacity as a duly authorized officer of Parent and not in any individual or personal capacity. The undersigned shall have no personal liability whatsoever with respect to the certifications, representations, or statements made herein. Nothing in this Certificate shall be deemed or construed to impose any personal liability or obligation on the undersigned, and neither the Company nor any other Person shall have any claim against the undersigned individually in connection with this Certificate or the certifications made herein.
The certifications set forth in this Certificate are made by the undersigned to the knowledge of the undersigned after due inquiry of other officers, directors, employees, and advisors of Parent and Merger Sub as the undersigned has deemed reasonably necessary or appropriate in order to deliver the certifications contained herein. For the avoidance of doubt, nothing in this Certificate shall be interpreted to expand or limit the scope of the representations, warranties, covenants, or agreements of Parent or Merger Sub as set forth in the Merger Agreement, and this Certificate is subject in all respects to the terms and conditions of the Merger Agreement, including the definitions, qualifications, limitations, and exceptions set forth therein.
SECTION 4: RELIANCE
This Certificate is delivered to the Company pursuant to Section [_] of the Merger Agreement solely for the purpose of enabling the Company to determine whether the conditions to the obligation of the Company to consummate the Merger and the other transactions contemplated by the Merger Agreement, as set forth in Section [_] of the Merger Agreement, have been satisfied as of the Closing Date. The Company may rely upon this Certificate solely for such purpose.
This Certificate is not intended to, and shall not, confer any rights, benefits, or remedies upon any Person other than the Company, and no Person other than the Company shall be entitled to rely upon the certifications, representations, or statements contained herein. Without limiting the foregoing, this Certificate shall not be deemed to constitute a representation, warranty, covenant, or agreement of Parent or Merger Sub for any purpose other than as expressly set forth in the Merger Agreement, and this Certificate shall not create or give rise to any liability of Parent, Merger Sub, or the undersigned except as expressly provided in the Merger Agreement.
SECTION 5: GOVERNING LAW
This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. The foregoing choice of law is consistent with, and shall be interpreted in a manner consistent with, the governing law provision set forth in Section [_] of the Merger Agreement.
[Remainder of this page intentionally left blank. Signature page follows.]
[SIGNATURE PAGE TO OFFICER'S CERTIFICATE OF HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT]
IN WITNESS WHEREOF, the undersigned has executed and delivered this Certificate as of the Closing Date first set forth above.
HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT
By: ________
Name: [Insert Name]
Title: [Insert Title]
Date: [__], 20[__]
[To be signed by a duly authorized officer of Parent, such as the Chief Executive Officer (Vorstandsvorsitzender) or Chief Financial Officer (Finanzvorstand). Expected signatory: [____]. Please confirm that the signatory has been duly authorized by the Management Board (Vorstand) of Parent to execute and deliver this Certificate on behalf of Parent and Merger Sub, and that the signatory's authority has been confirmed in accordance with the organizational documents of Parent and applicable German corporate law. Appropriate evidence of authority (e.g., certified extract from the Commercial Register (Handelsregister) or power of attorney (Vollmacht)) should be available at Closing.]
Form prepared by Calderwood & Harkness LLP
[Engagement No. [__]]
Closing Deliverable — Condition to Company's Obligation to Close (Section [_] of the Merger Agreement)
Halcyon Semiconductor Aktiengesellschaft / Vectris Photonics, Inc. Agreement and Plan of Merger dated August 10, 2023