1
EXHIBIT 10.15
ACQUISITION AGREEMENT
Among
Core Laboratories N.V.,
Core Laboratories International B.V.,
Saybolt International B.V.,
A.G.I. Mexicana S.A. de C.V.
and
the Stockholders of
A.G.I. Mexicana S.A. de C.V.
Dated as of
December 11, 1998
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TABLE OF CONTENTS
PAGE
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ARTICLE I
THE EXCHANGE
1.01 THE EXCHANGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02 CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.03 TRANSFER OF SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.04 CONSIDERATION FOR SUCH TRANSFER AND ESCROW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.05 WITHHOLDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.06 COMPANY DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
2.01 GOOD TITLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.02 CERTAIN SECURITIES LAW MATTERS (REGULATION D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.03 CERTAIN SECURITIES LAW MATTERS (REGULATION S) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.04 AUTHORIZATION AND VALIDITY OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND XXXXXXX
3.01 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.02 ORGANIZATIONAL DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.03 CAPITALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.04 AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.05 NO CONFLICT; REQUIRED FILINGS AND CONSENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.06 PERMITS; COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.07 FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.08 ABSENCE OF CERTAIN CHANGES OR EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.09 LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.10 EMPLOYEE BENEFIT PLANS; LABOR MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.11 TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.12 AFFILIATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.13 CERTAIN BUSINESS PRACTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.14 ENVIRONMENTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.15 UNDISCLOSED LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.16 CERTAIN AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.17 CONTRACTS AND COMMITMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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3.18 AFFILIATE INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.19 INTELLECTUAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.20 BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.21 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.22 PROPERTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
ACQUIROR AND ACQUISITION SUBS
4.01 ORGANIZATION AND QUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.02 CAPITALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.03 AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.04 NO CONFLICT; REQUIRED FILINGS AND CONSENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.05 REPORTS; FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.06 ABSENCE OF CERTAIN CHANGES OR EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.07 BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE V
COVENANTS OF THE STOCKHOLDERS
5.01 AFFIRMATIVE COVENANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.02 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VI
COVENANTS OF THE COMPANY AND XXXXXXX
6.01 AFFIRMATIVE COVENANTS OF THE COMPANY AND XXXXXXX . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.02 NEGATIVE COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII
COVENANTS OF ACQUIROR AND ACQUISITION SUBS
7.01 AFFIRMATIVE COVENANTS OF ACQUIROR AND ACQUISITION SUBS . . . . . . . . . . . . . . . . . . . . . . . 21
7.02 NEGATIVE COVENANTS OF ACQUIROR AND ACQUISITION SUBS . . . . . . . . . . . . . . . . . . . . . . . . 22
ARTICLE VIII
ADDITIONAL AGREEMENTS
8.01 NOTIFICATION OF CERTAIN MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.02 ACCESS AND INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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8.03 APPROPRIATE ACTION; CONSENTS; FILINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.04 PUBLIC ANNOUNCEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.05 EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.06 EMPLOYEES OF COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IX
INDEMNIFICATION
9.01 IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.02 NO EXHAUSTION OF REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.03 DEFENSE OF THIRD PARTY CLAIMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
9.04 PAYMENT; ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.05 SATISFACTION OF CLAIMS FROM ESCROW SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9.06 LIABILITY LIMITATIONS; SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 28
ARTICLE X
CONDITIONS
10.01 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIROR COMPANIES . . . . . . . . . . . . . . . . . . . 28
10.02 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE XI
MISCELLANEOUS
11.01 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.02 EFFECT OF TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.03 WAIVER AND AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
11.04 ENTIRE AGREEMENT; THIRD PARTY BENEFICIARIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.05 ASSIGNMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.06 CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
11.07 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
11.08 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.09 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.10 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.11 HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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Exhibits:
Exhibit A - Escrow Agreement
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ACQUISITION AGREEMENT
This Acquisition Agreement (this "Agreement") is made and entered into
as of December 11, 1998 by and among Core Laboratories N.V., a Netherlands
limited liability company ("Acquiror"), Core Laboratories International B.V., a
Netherlands limited liability company and wholly owned subsidiary of Acquiror
("Acquisition Sub A"), Saybolt International B.V., a Netherlands limited
liability company and a wholly owned subsidiary of Acquiror ("Acquisition Sub
B"), A.G.I. Mexicana S.A. de C.V., a Mexican corporation (the "Company"),
Xxxxxx X. Xxxxxxx, a United States resident ("Xxxxxxx") and each of the
stockholders of the Company set forth on the signature pages hereto
(individually, including Xxxxxxx, "Stockholder" or collectively, including
Xxxxxxx, the "Stockholders"). Acquiror, Acquisition Sub A and Acquisition Sub
B are sometimes collectively referred to herein as the "Acquiror Companies."
Acquisition Sub A and Acquisition Sub B are referred to collectively as
"Acquisition Subs."
WHEREAS, the Stockholders are the sole record and beneficial owners of
100% of the capital stock of the Company;
WHEREAS, Acquiror, Acquisition Subs, the Company and the Stockholders,
upon the terms and subject to the conditions of this Agreement, desire to
effect an exchange (the "Exchange") of an aggregate of 15,000 common shares,
par value NLG 0.03 Dutch guilders per share ("Acquiror Shares"), of Acquiror
for all of the shares of Series A Common Stock of the Company ("Company Common
Stock Series A") and all of the issued and outstanding Series B Common Stock of
the Company ("Company Common Stock Series B" and, together with the Company
Common Stock Series A, "Company Stock");
WHEREAS, the Exchange is intended to be treated as a purchase for
financial accounting purposes in accordance with United States of America
generally accepted accounting principles ("GAAP") and the rules, regulations
and interpretations of the Securities and Exchange Commission (the "SEC");
NOW THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
THE EXCHANGE
1.01 THE EXCHANGE. Subject to the terms and conditions of this
Agreement, each of the Stockholders agrees to exchange all of the shares of
Company Stock owned by such Stockholder for Acquiror Shares as hereinafter
provided.
1.02 CLOSING. The Closing of the Exchange for Xxxxxxx shall take
place at the offices of Xxxxxx & Xxxxxx, L.L.P., 2300 First City Tower, 0000
Xxxxxx, Xxxxxxx, Xxxxx, and the simultaneous Closing of the Exchange for the
Stockholders other than Xxxxxxx shall take place at the offices of
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the Company, both at (a) 9:00 a.m. on December 11, 1998 or (b) at such other
place, time and date as the parties hereto may agree.
1.03 TRANSFER OF SHARES. Subject to the term of the Escrow
Agreement (as defined below), at the Closing the Stockholders shall deliver to
the Acquisition Subs, certificates evidencing all of the Company Stock set
forth opposite the names of the Stockholders on the signature pages hereto.
Such certificates shall be duly endorsed for transfer or accompanied by
properly executed stock powers. Acquisition Sub A shall acquire 99% of the
Company Stock, and Acquisition Sub B shall acquire the remaining 1% of Company
Stock.
1.04 CONSIDERATION FOR SUCH TRANSFER AND ESCROW. In consideration
for the aforesaid delivery of Company Stock and for all other duties,
obligations and performances by the Stockholders hereunder and subject to all
of the other terms and conditions hereof and the Escrow Agreement, at the
Closing Acquiror shall deliver to the Stockholders that number of duly and
validly issued Acquiror Shares, less the escrow portion of such shares pursuant
to the terms and conditions set forth herein, as follows:
for all of the duly and validly issued shares of Company
Common Stock Series A and Series B delivered by a Stockholder to the
Acquisition Subs at the Closing as provided in Section 1.03, such
Stockholder shall be entitled to receive the number of Acquiror Shares
set forth opposite the Stockholder's name on the signature page
hereto.
At the Closing, Acquiror Companies will cause to be delivered to, and
deposited directly with, Bankers Trust Company (the "Escrow Agent"), for the
account and future potential benefit of Xxxxxxx, a stock certificate
representing 1,500 Acquiror Shares, which certificate shall be registered as
follows: "Bankers Trust Company, f/b/o Xxxxxx X. Xxxxxxx." All such Acquiror
Shares so delivered to the Escrow Agent, together with all subsequent stock
dividends or distributions of other Acquiror Shares received in respect of such
shares while deposited with the Escrow Agent shall be referred to as "Escrow
Shares." The Escrow Shares shall be subtracted from the number of Acquiror
Shares Xxxxxxx is entitled to receive pursuant to the Exchange at the Closing.
The Escrow Shares shall be held by the Escrow Agent pursuant to the terms and
conditions of an Escrow Agreement in substantially the form attached hereto as
Exhibit A (the "Escrow Agreement") between Acquiror, Acquisition Subs, the
Company and Xxxxxxx. The Escrow Agreement shall authorize Xxxxxxx to control
the disposition of such Escrow Shares pursuant to the terms of the Escrow
Agreement.
1.05 WITHHOLDING. Acquiror Companies (or any affiliate thereof)
shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any Stockholder such amounts as Acquiror
Companies (or any affiliate thereof) are required to deduct and withhold with
respect to any provision of federal, state, local or foreign tax law. To the
extent that amounts are so withheld by Acquiror, such withheld amounts shall be
treated for all purposes of this Agreement as having been paid to the
Stockholder in respect of which such deduction and withholding was made by
Acquiror. Stockholders shall be liable for and shall pay all Taxes, direct or
indirect, if any, or other obligations payable under the laws of Mexico and
attributable to the transfer or sale of the Company Stock.
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1.06 COMPANY DIRECTORS. The Company shall take such actions as are
necessary to continue with the sole administrator or to adopt the forms
necessary for a Board of Directors, or the organizational equivalency of such
corporate form of governance.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Except as otherwise indicated, each of the Stockholders, severally and
not jointly, represents and warrants to Acquiror Companies that:
2.01 GOOD TITLE. Such Stockholder is the sole record and
beneficial owner of, and has good and valid title to, the number of shares of
Company Stock set forth opposite such Stockholder's name on the signature pages
hereto, free and clear of all liens, claims, encumbrances, options, voting
trusts or agreements, proxies or other claims or charges of any nature
whatsoever (other than resulting from this Agreement).
2.02 CERTAIN SECURITIES LAW MATTERS (REGULATION D).
(a) Xxxxxxx, either alone or with his purchaser
representative (if any) as defined in Rule 501(h) under the Securities
Act of 1933, as amended ("Securities Act") of the United States of
America Federal securities law (which law is applicable to Acquiror
given that it is a publicly listed company in the United States of
America), has substantial experience in evaluating and investing in
private placement transactions so that the Stockholder is capable of
evaluating the merits and risks of his investment in the Acquiror
Shares. The Stockholder, by reason of such Stockholder's business or
financial experience, either alone or with his purchaser
representative as defined in Section 501(h) under the Securities Act,
if any, has the capacity to protect such Stockholder's own interests
in connection with the acquisition of the Acquiror Shares hereunder.
The Stockholder has designated himself as an "accredited investor" on
the signature page hereto as "accredited investor" is defined in Rule
501 of Regulation D promulgated pursuant to the Securities Act and,
either alone or with his purchaser representatives, has such knowledge
and experience in financial and business matters that he is capable of
evaluating the merits and risks of the transactions contemplated by
this Agreement. Such Stockholder has been provided and has had access
to material information concerning Acquiror and has received and
reviewed all such material requested, including, but not limited to,
Acquiror's most recent Annual Report to Shareholders and Annual Report
on Form 10-K for the fiscal year ended December 31, 1997, proxy
statement for the annual meeting of shareholders held in 1998 and
Quarterly Reports on Form 10-Q for each of the quarters ended March
31, June 30 and September 30, 1998 (collectively, the "Information").
Xxxxxxx is familiar with the business and financial condition,
properties, operations and prospects of Acquiror. Xxxxxxx has had an
opportunity to discuss Acquiror's business and financial condition,
properties, operations and prospects with Acquiror's management.
Xxxxxxx has also had an opportunity to ask questions of officers of
Acquiror, which questions were answered to Xxxxxxx' satisfaction.
Xxxxxxx understands that such
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discussion was intended to describe certain aspects of Acquiror's
business and financial condition, properties, operations and
prospects, but were not a thorough or exhaustive description.
(b) Xxxxxxx understands that the Acquiror Shares may be
"restricted securities" under the applicable federal securities laws
and that the Securities Act and the rules of the SEC provide in
substance that Xxxxxxx may dispose of the Acquiror Shares only
pursuant to an effective registration statement under the Securities
Act or an exemption therefrom, and understands that Acquiror has no
obligation or intention to register the Acquiror Shares. Xxxxxxx
understands that Rule 144 under the Securities Act permits limited
resales of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the
existence of a public market for the shares, the availability of
certain current public information about the issue, the resale
occurring not less than one (1) year after a party has purchased and
paid for the security to be sold, the sale being effected through a
"broker's transaction" or in transactions with a "market maker" and
the number of shares being sold not exceeding specified limitations.
Accordingly, Xxxxxxx understands that under the SEC's rules, Xxxxxxx
may dispose of the Acquiror Shares in transactions which are exempt
from registration under the Securities Act. As a consequence of all
of the foregoing, Xxxxxxx understands that he must bear the economic
risk of the investment in the Acquiror Shares for an indefinite period
of time. Acquiror agrees that it will use its best efforts to file
the requisite reports under the Securities Exchange Act of 1934, as
amended, to enable Xxxxxxx to sell its Acquiror Shares without
registration in accordance with Rule 144 under the Securities Act.
(c) Xxxxxxx acknowledges and agrees that he is not
relying upon Acquiror or the Company or their respective officers,
directors, employees or agents, as to the tax consequences to Xxxxxxx
of the transactions contemplated by this Agreement. As to all such tax
consequences, Xxxxxxx hereby agrees and represents that he has
consulted with Xxxxxxx own legal and tax advisors to the extent that
he has deemed such consultation necessary or appropriate, that he is
making his own determination as to what the tax consequences of the
transactions contemplated hereby will be to him and that neither
Acquiror nor the Company is making any representation, express or
implied, as to any such tax consequences.
2.03 CERTAIN SECURITIES LAW MATTERS (REGULATION S).
(a) Each of the Stockholders other than Xxxxxxx
("Non-U.S. Stockholders") is not a U.S. person, as defined in Section
902(k) of Regulation S under the U.S. Securities Act, and is not
acquiring the Acquiror Shares for the account or benefit of any U.S.
person.
(b) Each of the Non-U.S. Stockholders understands that
the shares comprising their Acquiror Shares will be "restricted
securities" under the applicable United States federal securities laws
and that the U.S. Securities Act and the rules of the United States
Securities Exchange Commission (the "Commission") provide in substance
that such Stockholder may dispose of the shares comprising the
Acquiror Shares only pursuant to the provisions of Regulation S under
the U.S. Securities Act, pursuant to an effective registration
statement under the U.S. Securities Act or exemption therefrom and
that hedging transactions
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involving any such Acquiror Shares may not be conducted unless in
compliance with the U.S. Securities Act, and each Non-U.S. Stockholder
further understands that Acquiror will refuse to register any transfer
of such Acquiror Shares not made in accordance with the provisions of
Regulation S, pursuant to registration under the U.S. Securities Act,
or pursuant to an available exemption from registration. As a
consequence of all of the foregoing, each Non-U.S. Stockholder
understands that he or she must bear the economic risk of the
investment in the shares comprising the Acquiror Shares for so long as
he or she owns such shares; and
(c) The Non-U.S. Stockholders understand and agree that a
legend will be placed on any certificates representing the Acquiror
Shares issued to the Non-U.S. Stockholders to the effect that:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND
WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). THE HOLDER THEREOF, BY ACQUIRING SUCH
SECURITIES, AGREES FOR THE BENEFIT OF THE COMPANY
THAT SUCH SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (A) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT AND IN
ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, (B)
PURSUANT TO REGISTRATION UNDER THE SECURITIES ACT OR
(C) PURSUANT TO AN AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND ANY
APPLICABLE STATE LAWS AND REGULATIONS GOVERNING THE
OFFER AND SALE OF SECURITIES, AND THE HOLDER HAS,
PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN
OPINION OF COUNSEL, OF RECOGNIZED STANDING, OR OTHER
EVIDENCE OF EXEMPTION, REASONABLY SATISFACTORY TO THE
COMPANY."
2.04 AUTHORIZATION AND VALIDITY OF AGREEMENT. Such Stockholder has
the full power, legal right, capacity and authority to enter into, execute and
deliver this Agreement and to carry out and perform the transactions
contemplated hereby. This Agreement constitutes a valid and binding obligation
of such Stockholder, enforceable against such Stockholder in accordance with
its terms.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND XXXXXXX
The Company and Xxxxxxx, jointly and severally, hereby represent and
warrant to Acquiror Companies that:
3.01 ORGANIZATION AND QUALIFICATION; SUBSIDIARIES. The Company is
a corporation whose ownership is represented solely by the Company Stock. The
Company and each of the Company's subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, and each of the Company and its subsidiaries has
all requisite power and authority to own, lease and operate its properties and
to carry on its business as it is now being conducted and, except as set forth
in Section 3.01 of the Company Disclosure Schedule (as defined below), is duly
qualified and in good standing to do business in each jurisdiction in which the
nature of the business conducted by it or the ownership or leasing of its
properties makes such qualification necessary, other than where the failure to
be so duly qualified and in good standing would not reasonably be expected to
have a Company Material Adverse Effect. The term "Company Material Adverse
Effect" as used in this Agreement shall mean any change or effect that would be
materially adverse to the financial condition, results of operations, business,
properties or prospects of the Company and its subsidiaries, taken as a whole,
at the time of such change or effect. Section 3.01 of the Disclosure Schedule
delivered by the Company to Acquiror concurrently with the execution of this
Agreement (the "Company Disclosure Schedule") sets forth, as of the date of
this Agreement, a true and complete list of all the Company's directly or
indirectly owned subsidiaries, together with the jurisdiction of incorporation
or organization of each subsidiary and the percentage of each subsidiary's
outstanding capital stock or other equity interests owned by the Company or
another subsidiary of the Company.
3.02 ORGANIZATIONAL DOCUMENTS. The Company has heretofore
furnished to Acquiror complete and correct copies of the Articles of
Incorporation and the Bylaws or the equivalent organizational documents, in
each case as amended or restated to the date hereof, of the Company and each of
its subsidiaries. Neither the Company nor any of its subsidiaries is in
violation of any of the provisions of its Articles of Incorporation or Bylaws
(or equivalent organizational documents).
3.03 CAPITALIZATION.
(a) The authorized capital stock of the Company consists
of: 50,000 shares of Company Common Stock Series A and 11,087,360
shares of Company Common Stock Series B. As of the date of this
Agreement, 50,000 shares of Company Common Stock Series A were issued
and outstanding, 11,087,360 shares of Company Common Stock Series B
were issued and outstanding and no shares of Company Stock were held
by the Company in its treasury or by the Company's subsidiaries.
Except as set forth above, there are no shares of capital stock of the
Company issued and outstanding or reserved for issuance for any
purpose. Each of the issued shares of capital stock of, or other
equity interests in, each of the Company and its subsidiaries is duly
authorized, validly issued and, in the case of shares of capital
stock, fully paid and nonassessable, and has not been issued in
violation
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of (nor are any of the authorized shares of capital stock of, or other
equity interests in, the Company or any of its subsidiaries subject
to) any preemptive or similar rights created by statute, the Articles
of Incorporation or Bylaws (or the equivalent organizational
documents) of the Company or any of its subsidiaries, or any agreement
to which the Company or any of its subsidiaries is a party or is
bound, and all such issued shares or other equity interests owned by
the Company or a subsidiary of the Company are owned free and clear of
all security interests, liens, claims, pledges, agreements,
limitations on the Company's or such subsidiaries' voting rights,
charges or other encumbrances of any nature whatsoever.
(b) No bonds, debentures, notes or other indebtedness of
the Company having the right to vote (or convertible into or
exchangeable or exercisable for securities having the right to vote)
on any matters on which shareholders may vote ("Voting Debt") are
issued or outstanding.
(c) There are no options, warrants or other rights
(including registration rights), agreements, arrangements or
commitments of any character to which the Company or any of its
subsidiaries is a party relating to the issued or unissued capital
stock or other equity interests of the Company or any of its
subsidiaries or obligating the Company or any of its subsidiaries to
grant, issue or sell any shares of capital stock, Voting Debt or other
equity interests of the Company or any of its subsidiaries. There are
no obligations, contingent or otherwise, of the Company or any of its
subsidiaries (i) to repurchase, redeem or otherwise acquire any shares
of Company Stock or other capital stock of the Company or the capital
stock or other equity interests of any subsidiary of the Company or
(ii) (other than advances to wholly owned subsidiaries in the ordinary
course of business) to provide material funds to, or to make any
material investment in (in the form of a loan, capital contribution or
otherwise), or to provide any guarantee with respect to the material
obligations of, any subsidiary of the Company or any other person.
Except for subsidiaries of the Company set forth in Section 3.01 of
the Company Disclosure Schedule, neither the Company nor any of its
subsidiaries (x) directly or indirectly owns, (y) has agreed to
purchase or otherwise acquire or (z) holds any interest convertible
into or exchangeable or exercisable for capital stock or other equity
interest of any corporation, partnership, joint venture or other
business association or entity. Except as set forth in Section
3.03(c) of the Company Disclosure Schedule or for any agreements,
arrangements or commitments between the Company and its wholly owned
subsidiaries or between such wholly owned subsidiaries, there are no
agreements, arrangements or commitments of any character (contingent
or otherwise) pursuant to which any person is or may be entitled to
receive any payment based on, or calculated in accordance with, the
revenues or earnings of the Company or any of its subsidiaries.
Except as set forth in Section 3.03(c) of the Company Disclosure
Schedule, there are no voting trusts, proxies or other agreements or
understandings to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound with
respect to the voting of any shares of capital stock or other equity
interests of the Company or any of its subsidiaries.
3.04 AUTHORITY. The Company has all requisite corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by the Company and the
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consummation by the Company of the transactions contemplated hereby have been
duly authorized by all necessary corporate action and no other corporate
proceedings on the part of the Company are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Company and, assuming the
due authorization, execution and delivery hereof by Acquiror Companies,
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
3.05 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) Assuming that all consents, licenses, permits,
waivers, approvals, authorizations, orders, filings and notifications
contemplated by the exceptions to Section 3.05(b) are obtained or made
and except as disclosed in Section 3.05(a) of the Company Disclosure
Schedule, the execution and delivery of this Agreement by the Company
does not, and the performance by the Company of its obligations
hereunder, including consummation of the transactions contemplated
hereby, will not (i) conflict with or violate the Articles of
Incorporation or Bylaws, or the equivalent organizational documents,
in each case as amended or restated, of the Company or any of its
subsidiaries, (ii) conflict with or violate any federal, state,
foreign or local law, statute, ordinance, rule or regulation
(collectively, "Laws") or any judgment, order or decree applicable to
the Company or any of its subsidiaries or by or to which any of their
respective properties is bound or subject or (iii) result in any
breach of or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of,
or require payment under, or result in the creation of a lien or
encumbrance on any of the properties or assets of the Company or any
of its subsidiaries pursuant to, any material note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which the Company or any of its
subsidiaries is a party or by or to which the Company or any of its
subsidiaries or any of their respective properties is bound or
subject, except, with respect to clauses (ii) and (iii) above, any
such conflicts, violations, breaches, defaults, events, rights of
termination, amendment, acceleration or cancellation, payment
obligations or liens or encumbrances that could not reasonably be
expected to result in a Company Material Adverse Effect.
(b) The execution and delivery of this Agreement by the
Company does not, and the performance by the Company of its
obligations hereunder, including consummation of the transactions
contemplated hereby, will not, require the Company to obtain any
consent, license, permit, waiver, approval, authorization or order of,
or to make any filing with or notification to, any governmental or
regulatory authority, federal, state, local or foreign (collectively,
"Governmental Entities"), except (i) where the failure to obtain such
consents, licenses, permits, waivers, approvals, authorizations or
orders, or to make such filings or notifications could not reasonably
be expected to cause a Company Material Adverse Effect or to prevent
the Company from performing its obligations under this Agreement and
(ii) as disclosed in Section 3.05(b) of the Company Disclosure
Schedule.
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3.06 PERMITS; COMPLIANCE. Except as disclosed in Section 3.06 of
the Company Disclosure Schedule, each of the Company and its subsidiaries is in
possession of all franchises, grants, authorizations, licenses, permits,
easements, variances, exemptions, consents, certificates, identification and
registration numbers, approvals and orders necessary in all material respects
to own, lease and operate its properties and to carry on its business as it is
now being conducted (collectively, the "Company Permits"). Section 3.06 of the
Company Disclosure Schedule sets forth a list of each of the Company Permits
and the jurisdiction issuing the same, all of which are in good standing and
not subject to meritorious challenge. Section 3.06 of the Company Disclosure
Schedule also sets forth, as of the date of this Agreement, all actions,
proceedings, investigations or surveys pending or, to the knowledge of the
Company or Xxxxxxx, threatened against the Company or any of its subsidiaries,
that could reasonably be expected to result in the loss or revocation of a
Company Permit. Except as set forth in Section 3.06 of the Company Disclosure
Schedule, neither the Company nor any of its subsidiaries is, in any material
respect, in conflict with, in default under or in violation of, and none of
them has been received, since January 31, 1997 from any Governmental Entity any
written notice with respect to any conflict with, default under or violation
of, (i) any Law applicable to the Company or any of its subsidiaries or by or
to which any of their respective properties is bound or subject, (ii) any
judgment, order or decree applicable to the Company or any of its subsidiaries
or (iii) any of the Company Permits.
3.07 FINANCIAL STATEMENTS. The Company has provided Acquiror with
true, correct and complete copies of (i) its audited balance sheets as of
December 31, 1995, 1996 and 1997, and the related statements of income and
stockholders' equity for each of the three years for the periods ended December
31,1997, including the notes to financial statements with respect thereto, and
(ii) its unaudited balance sheet as of October 31, 1998 and unaudited income
statement for the ten-month period then ended (collectively, the "Company
Financial Statements"). Each of the Company Financial Statements (including,
in each case, any related notes thereto) (a) has been prepared in accordance
with generally accepted accounting principles as utilized in Mexico ("Mexican
GAAP") applied on a consistent basis throughout the periods involved (except
(i) to the extent disclosed therein or required by changes in Mexican GAAP, and
(ii) as may be indicated in the notes thereto) and (b) fairly present the
financial position of the Company and its subsidiaries as of the respective
dates thereof and the results of operations for the periods indicated (subject,
in the case of unaudited financial statements for interim periods, to
adjustments, consisting only of normal, recurring accruals, necessary to
present fairly such results of operations).
3.08 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as contemplated
by this Agreement or as set forth in Section 3.08 of the Company Disclosure
Schedule, since December 31, 1997, the Company and its subsidiaries have
conducted their respective businesses only in the ordinary course and in a
manner consistent with past practice and there has not been: (i) any damage,
destruction or loss with respect to any assets of the Company or any of its
subsidiaries that, whether or not covered by insurance, would constitute a
Company Material Adverse Effect; (ii) any change by the Company or its
subsidiaries in their significant accounting policies; (iii) except for
dividends by a wholly owned subsidiary of the Company to the Company or to
another wholly owned subsidiary of the Company, any declaration, setting aside
or payment of any dividends or distributions in respect of shares of Company
Stock or the shares of stock of, or other equity interests in, any subsidiary
of the Company or any redemption, purchase or other acquisition of any of the
Company's securities or any of the securities of any subsidiary of the Company;
(iv) any material increase in the benefits
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under, or the establishment or amendment of, any bonus, insurance, severance,
deferred compensation, pension, retirement, profit sharing, performance awards
(including, without limitation, the granting of stock appreciation rights or
restricted stock awards), stock purchase or other employee Benefit Plan, or any
increase in the compensation payable or to become payable to any of the
directors or officers of the Company or the employees of the Company and its
subsidiaries as a group except in the ordinary course of business consistent
with past practice; or (v) any other Company Material Adverse Effect.
3.09 LITIGATION. Except as disclosed in Section 3.09 of the
Company Disclosure Schedule, (a) there is no claim, action, suit, litigation,
proceeding, arbitration or, to the knowledge of the Company or Xxxxxxx or the
management of the Company, investigation of any kind, at law or in equity
(including actions or proceedings seeking injunctive relief), pending or, to
the knowledge of the Company or Xxxxxxx or the management of the Company,
threatened against the Company or any of its subsidiaries or any properties or
rights of the Company or any of its subsidiaries, and (b) neither the Company
nor any of its subsidiaries is subject to any investigation of any kind,
executory judgment, order, writ, injunction, decree or award of any
Governmental Entity, including without limitation any cease and desist order
and any consent decree, settlement agreement or other similar agreement with
any Governmental Entity. In addition, none of the Stockholders have any
claims, actions or disputes against the Company.
3.10 EMPLOYEE BENEFIT PLANS; LABOR MATTERS.
(a) With respect to any of the Company's employee benefit
plans (each, a "Benefit Plan"), no event has occurred and, to the
knowledge of the Company and Xxxxxxx, there exists no condition or set
of circumstances, in connection with which the Company or any of its
subsidiaries could be subject to any liability under the terms of such
Benefit Plan or any applicable Law.
(b) There are no collective bargaining or other labor
union contracts to which the Company or its subsidiaries is a party
applicable to persons employed by the Company or its subsidiaries and
no collective bargaining agreement is being negotiated by the Company
or any of its subsidiaries. There is no pending or, to the knowledge
of the Company or Xxxxxxx, threatened labor dispute, strike or work
stoppage against the Company or any of its subsidiaries. To the
knowledge of the Company or Xxxxxxx, none of the Company, any of its
subsidiaries or any of their respective representatives or employees
has committed any unfair labor practice in connection with the
operation of the respective businesses of the Company or its
subsidiaries that could reasonably be expected to have a Company
Material Adverse Effect, and there is no pending or, to the knowledge
of the Company or Xxxxxxx, threatened charge or complaint against the
Company or any of its subsidiaries by any governmental agency.
(c) Section 3.10(c) of the Company Disclosure Schedule
contains true and correct (i) copies of all employment agreements to
which the Company or any of its subsidiaries is a party; (ii) listings
of all officers of the Company who have executed a non-competition
agreement with the Company or any of its subsidiaries; (iii) copies of
all severance agreements, programs and policies of the Company or any
of its subsidiaries with or relating
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to its, or any of its subsidiaries, employees; and (iv) summary
descriptions of all plans, programs, agreements and other arrangements
of the Company or any of its subsidiaries with or relating to its, or
any of its subsidiaries, employees. Except as set forth in Section
3.10(c) of the Company Disclosure Schedule, neither the Company nor
any of its subsidiaries will owe a severance payment or similar
obligation to any of their respective employees, officers or directors
as a result of the Exchange or the other transactions contemplated by
this Agreement, and none of such persons will be entitled to severance
payments or other benefits as a result of the Exchange or the other
transactions contemplated by this Agreement in the event of the
subsequent termination of their employment.
(d) No Benefit Plan provides retiree medical or retiree
life insurance benefits and neither the Company nor any of its
subsidiaries is contractually or otherwise obligated (whether or not
in writing) to provide life insurance and medical benefits upon
retirement or termination of employment of employees.
(e) The Company has not taken any of the following or
other similar actions since December 31, 1997: the acceleration of
vesting, waiving of performance criteria or the adjustment of awards
or any other actions permitted upon a change in control of the Company
with respect to any of the Benefit Plans or any of the plans,
programs, agreements, policies or other arrangements described in
Section 3.10(c) of this Agreement.
3.11 TAXES. Except as set forth in Section 3.11 of the Company
Disclosure Schedule,
(a) (i) all returns and reports and workpapers in
connection therewith ("Tax Returns") of or with respect to any Tax
which is required to be filed with respect to the Company or any its
subsidiaries have been duly and timely filed, (ii) all items of
income, gain, loss, deduction and credit or other items required to be
included in each such Tax Return have been so included and all
information provided in each such Tax Return is true, correct and
complete in all respects (including, without limitation, documentation
relating to any reportable item of income, deduction, gain, loss or
credit maintained by the Company), (iii) all Taxes that have become
due with respect to the period covered by each such Tax Return have
been timely paid in full, (iv) all withholding Tax requirements
imposed on or with respect to the Company or any of its subsidiaries
have been satisfied in all respects, and (v) no penalty, interest or
other charge is or will become due with respect to the late filing of
any such Tax Return or late payment of any such Tax.
(b) There is no claim pending against the Company or any
of its subsidiaries for any amount of Taxes, and no assessment,
deficiency or adjustment has been asserted or proposed with respect to
any Tax Return of or with respect to the Company or any of its
subsidiaries other than those disclosed (and to which are attached
true and complete copies of all audit or similar reports) in Section
3.11 of the Company Disclosure Schedule.
(c) The total amounts set up as liabilities for current
and deferred Taxes in the Company Financial Statements are sufficient
to cover the payment of all Taxes, whether or not assessed or
disputed, which are, or are hereafter found to be, or to have been,
due by or
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with respect to the Company and any of its subsidiaries up to and
through the periods covered thereby.
(d) Except for statutory liens for current Taxes not yet
due, no liens for Taxes exist upon any of the assets of the Company or
any of its subsidiaries.
(e) None of the transactions contemplated by this
Agreement will result in any Tax liability or the recognition of any
item of income or gain to the Company or any of its subsidiaries,
other than the Netherlands capital tax that may be applicable upon
issuance of the Acquiror Shares by Acquiror pursuant to Article 1
hereof.
3.12 AFFILIATES. Section 3.12 of the Company Disclosure Schedule
identifies all persons who, to the knowledge of the Company or Xxxxxxx, may be
deemed to be affiliates of the Company within the meaning of that term as used
in Rule 145 promulgated pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), including, without limitation, all directors and executive
officers of the Company.
3.13 CERTAIN BUSINESS PRACTICES. None of the Company, any of its
subsidiaries or any directors, officers, agents or employees of the Company or
any of its subsidiaries (in their capacities as such) has (i) used any funds
for unlawful contributions, gifts, entertainment or other unlawful purposes,
(ii) made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns or violated
any provision of the United States Foreign Corrupt Practices Act of 1977, as
amended, or (iii) made any other unlawful payment.
3.14 ENVIRONMENTAL. The Company and each of its subsidiaries are
in full compliance in all respects with all applicable laws, rules,
regulations, and other legal requirements, foreign and domestic, relating to
the prevention of pollution and the protection of the environment, including
all such legal requirements pertaining to human health and safety
(collectively, "Environmental Laws"). There is no physical condition existing
on any property ever owned or operated by the Company or any of its
subsidiaries that could give rise to any remedial obligation of the Company or
any of its subsidiaries under any Environmental Law or that could result in any
liability of the Company or any of its subsidiaries to any third party claiming
damage to person or property as a result or consequence of such physical
conditions. There are not any physical conditions existing on any other
property that may have been impacted by the operations of the Company or any of
its subsidiaries that could give rise to any material remedial obligation of
the Company or any of its subsidiaries under any Environmental Law or that
could result in any material liability of the Company or any of its
subsidiaries to any third party claiming damage to person or property as a
result or consequence of such physical conditions. None of the Company or any
of its subsidiaries has caused or permitted its businesses, properties or
assets to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose of, transfer, produce, or process any Hazardous Substance (as
defined below), and has not caused or permitted the Release (as defined below)
of any Hazardous Substance on or off the site of any property of any of the
Company or any of its subsidiaries, except in compliance with all applicable
laws, rules, regulations, orders, judgments and decrees. The term "Hazardous
Substance" shall mean any hazardous waste, as defined by 42 U.S.C. 6903(5), any
hazardous substance, as defined by 42 U.S.C. 9601(14), any pollutant or
contaminant, as defined by 42 U.S.C. 9601(33), and all toxic substances,
hazardous materials, or other chemical substances regulated by
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any other law, rule, or regulation. The term "Release" shall have the meaning
set forth in 42 U.S.C. 9601(22).
3.15 UNDISCLOSED LIABILITIES. Except as and to the extent of the
amounts specifically reflected or accrued for in the balance sheet dated as of
October 31, 1998, included in the Company Financial Statements, or liabilities
incurred in the ordinary course of business since October 31, 1998 or set forth
in Section 3.15 of the Company Disclosure Schedule, none of the Company or any
of its subsidiaries has any liabilities or obligations of any nature whether
absolute, accrued, contingent or otherwise, and whether due or to become due.
Neither the Company nor Xxxxxxx knows of any basis for the assertion against
the Company or any of its subsidiaries of any such liability or obligation not
fully reflected or adequately accrued for in the Company Financial Statements
or set forth in Section 3.15 of the Company Disclosure Schedule.
3.16 CERTAIN AGREEMENTS. Except as set forth in Section 3.16 of
the Company Disclosure Schedule, none of the Company or any of its subsidiaries
is a party to, or bound by, any contract, agreement or organizational document
which purports to restrict, by virtue of a noncompetition, territorial
exclusivity or other provision covering such subject matter, the scope of the
business or operations of any of the Company or any of its subsidiaries
geographically or otherwise.
3.17 CONTRACTS AND COMMITMENTS. Section 3.17 of the Company
Disclosure Schedule sets forth (i) a list of each contract or commitment to
which the Company or any of its subsidiaries is a party or by which its or
their property is bound that involves consideration or other expenditure in
excess of $25,000 or performance over a period of more than six months or that
is otherwise material to the business or operations of the Company and its
subsidiaries, taken as a whole ("Material Contracts"); (ii) a list of all real
or personal property leases to which any of the Company or any of its
subsidiaries is a party involving consideration or other expenditure in excess
of $25,000 over the term of the lease ("Material Leases"); (iii) a list of
guarantees, or agreements to indemnify or be contingently liable for, the
payment or performance by any person or business entity to which any of the
Company or any of its subsidiaries is a party ("Guarantees"); and (iv) a list
of contracts or other formal or informal understandings between the Company or
any of its subsidiaries and any of its officers, directors, employees,
consultants, agents or shareholders (or any of such shareholders' family
members or affiliates) ("Affiliate Agreements"). True and complete copies of
each Material Contract, Material Lease, Guarantee and Affiliate Agreement have
been furnished to Acquiror prior to the date hereof. Except as specifically
disclosed in Section 3.17 of the Company Disclosure Schedule, each of the
Material Contracts, Material Leases, Guarantees and Affiliate Agreements
constitutes the valid and legally binding obligation of the parties thereto and
is in full force and effect without default on the part of any party thereto.
3.18 AFFILIATE INTERESTS. None of the Stockholders nor any
employee, consultant, officer or director, or former shareholder, employee,
consultant, officer or director, of the Company or any of its subsidiaries has
any interest in any property, tangible, or intangible, including, without
limitation, patents, trade secrets, other confidential business information,
trademarks, service marks or trade names used in or pertaining to the business
of the Company or any of its subsidiaries, except for the normal rights of a
shareholder.
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3.19 INTELLECTUAL PROPERTY. The Company or one or more of its
subsidiaries own, or are licensed or otherwise have the right to use or
sublicense, all foreign and domestic patents, trademarks (common law and
registered), trademark registration applications, service marks (common law and
registered), service xxxx registration applications, trade names and
copyrights, copyright applications, trade secrets, know-how and other
proprietary information as are necessary for the conduct of the business of the
Company and its subsidiaries as currently conducted. A list of all such
intellectual property is set forth in Section 3.19 of the Company Disclosure
Schedule. Neither the Company nor any of its subsidiaries is currently in
receipt of any notice of infringement or notice of conflict with the asserted
rights of others in any patents, trademarks, service marks, trade names, trade
secrets and copyrights owned or held by other persons, except, in each case,
for matters that could not reasonably be expected to have a Company Material
Adverse Effect. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate or breach the
terms of or cause any cancellation of any material license held by the Company
or any of its subsidiaries with regard to, any patent, trademark, service xxxx,
trade name, trade secret or copyright.
3.20 BROKERS. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Company or any of the Stockholders.
3.21 INSURANCE. Section 3.21 of the Company Disclosure Schedule
sets forth a list of all policies of insurance currently in effect relating to
the business or operations of the Company and its subsidiaries (true and
complete copies of which have been furnished to Acquiror). Such insurance
policies are in full force and effect. The Company and each of its
subsidiaries are presently insured, and during each of the past five calendar
years have been insured, against such risks and in such amounts as companies
engaged in a similar business and of similar size to that of the Company would,
in accordance with good business practice, customarily be insured. Except as
set forth in Section 3.21 of the Company Disclosure Schedule, the policies of
general liability, malpractice or professional liability, fire, theft and other
insurance maintained with respect to the operations, assets or businesses of
the Company and its subsidiaries provide adequate coverage against loss. The
Company or its subsidiaries have given in a timely manner to their insurers all
notices required to be given under such insurance policies with respect to all
claims and actions covered by insurance, and no insurer has denied coverage of
any such claims or actions or reserved it rights in respect of or rejected any
of such claims. None of the Company or any of its subsidiaries has received
any notice or other communication from any such insurer canceling or materially
amending any of such insurance policies, and no such cancellation is pending or
threatened. The execution of this Agreement and the consummation of the
transactions contemplated hereby will not cause such insurance policies to
lapse, terminate or be canceled and will not result in any party thereto having
the right to terminate or cancel such insurance policies.
3.22 PROPERTIES. Except as set forth in Section 3.22 of the
Company Disclosure Schedule, the Company and its subsidiaries have good and
marketable title, free and clear of all liens to all their material properties
and assets whether tangible or intangible, real, personal or mixed, reflected
in the Company Financial Statements as being owned by the Company and its
subsidiaries as of the date thereof, other than (i) any properties or assets
that have been sold or otherwise disposed of in the ordinary course of business
since the date of such financial statements, (ii) liens disclosed in the
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notes to such financial statements and (iii) liens arising in the ordinary
course of business. All buildings, fixtures, equipment and other property and
assets that are material to the Company's business on a consolidated basis,
that are held under leases or sub-leases by the Company or any of its
subsidiaries, are held under valid instruments enforceable in accordance with
their respective terms, subject to applicable laws of bankruptcy, insolvency or
similar laws relating to creditors' rights generally and to general principles
of equity (whether applied in a proceeding in law or equity). All of the
Company's and its subsidiaries' equipment in regular use has been reasonably
maintained and is in serviceable condition, reasonable wear and tear excepted.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
ACQUIROR AND ACQUISITION SUBS
Acquiror and Acquisition Subs hereby represent and warrant to the
Company and the Stockholders that:
4.01 ORGANIZATION AND QUALIFICATION. Acquiror is a limited
liability company duly organized, validly existing and in good standing under
the laws of the Netherlands. Acquisition Sub A is a corporation duly
organized, validly existing and in good standing under the laws of the
Netherlands. Acquisition Sub B is a corporation duly organized, validly
existing and in good standing under the laws of the Netherlands. Each of
Acquiror Companies and their subsidiaries have all requisite power and
authority to own, lease and operate its properties and to carry on its business
as it is now being conducted and is duly qualified and in good standing to do
business in each jurisdiction in which the nature of the business conducted by
it or the ownership or leasing of its properties makes such qualification
necessary, other than where the failure to be so duly qualified and in good
standing could not reasonably be expected to have an Acquiror Material Adverse
Effect. The term "Acquiror Material Adverse Effect" as used in this Agreement
shall mean any change or effect that would be materially adverse to the
financial condition, results of operations, business, properties or prospects
of Acquiror, Acquisition Sub A and Acquisition Sub B and their subsidiaries,
taken as a whole, at the time of such change or effect.
4.02 CAPITALIZATION.
(a) The authorized capital stock of Acquiror consists of
(i) 100,000,000 Acquiror Shares, of which, as of December 8, 1998:
(A) 28,367,102 shares were issued and outstanding, all of which are
duly authorized, validly issued, fully paid and nonassessable and were
not issued in violation of any preemptive or similar rights created by
statute or Acquiror's Articles of Association (the "Acquiror
Organizational Documents") or any agreement to which Acquiror is a
party or is bound; (B) no shares were held in the treasury of Acquiror
and (C) 3,100,000 shares were reserved for future issuance pursuant to
stock option plans of Acquiror and (ii) 3,000,000 Preference Shares,
par value NLG 0.03, none of which were issued or outstanding.
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(b) The Acquiror Shares to be issued pursuant to the
Exchange will be duly authorized, validly issued, fully paid and
nonassessable .
4.03 AUTHORITY. Each of the Acquiror Companies has all requisite
corporate power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by the Acquiror Companies
and the performance by each of the Acquiror Companies of its obligations
hereunder, including the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action and no other
corporate proceedings on the part of either of the Acquiror Companies are
necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by
each of the Acquiror Companies and, assuming the due authorization, execution
and delivery hereof by the other parties hereto, constitutes the legal, valid
and binding obligation of each of the Acquiror Companies, enforceable against
the Acquiror Companies in accordance with its terms.
4.04 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) Assuming that all consents, licenses, permits,
waivers, approvals, authorizations, orders, filings and notifications
contemplated by the exceptions to Section 4.04(b) are obtained or made
and except as otherwise disclosed in Section 4.04(a) of the Disclosure
Schedule delivered by the Acquiror Companies to the Company
contemporaneously with the execution and delivery of this Agreement
(the "Acquiror Disclosure Schedule"), the execution and delivery of
this Agreement by the Acquiror Companies does not, and performance of
their respective obligations hereunder, including the consummation of
the transactions contemplated hereby, will not (i) conflict with or
violate the Acquiror Organizational Documents or the Articles of
Incorporation or Bylaws, or their organizational equivalency, of
either Acquisition Sub, in each case as amended or restated, (ii)
conflict with or violate any Laws in effect as of the date of this
Agreement applicable to Acquiror, Acquisition Subs or any of
Acquiror's subsidiaries or by or to which any of their properties is
bound or subject or (iii) result in any breach of or constitute a
default (or an event that with or without notice or lapse of time or
both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or require
payment under, or result in the creation of a lien or encumbrance on
any of the properties or assets of Acquiror or any of Acquiror's
subsidiaries pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Acquiror or any of Acquiror's
subsidiaries is a party or by or to which Acquiror or any of
Acquiror's subsidiaries or any of their respective properties is bound
or subject, except, with respect to clauses (ii) and (iii), for any
such conflicts, violations, breaches, defaults, events, rights of
termination, amendment, acceleration or cancellation, payment
obligations or liens or encumbrances that could not reasonably be
expected to have an Acquiror Material Adverse Effect.
(b) The execution and delivery of this Agreement by the
Acquiror Companies does not, and the performance of this Agreement by
the Acquiror Companies will not, including the consummation of the
transactions contemplated hereby, require Acquiror or Acquisition Subs
to obtain any consent, license, permit, waiver approval, authorization
or
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order of, or to make any filing with or notification to, any
Governmental Entities, except (i) for applicable requirements, if any,
of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the New York Stock Exchange ("NYSE"), (ii) where the failure to
obtain such consents, licenses, permits, waivers, approvals,
authorizations or orders, or to make such filings or notifications
could not reasonably be expected to prevent Acquiror or either
Acquisition Sub from performing their respective obligations under
this Agreement and (iii) as disclosed in Section 4.04(b) of the
Acquiror Disclosure Schedule.
4.05 REPORTS; FINANCIAL STATEMENTS.
(a) Since November 13, 1998, Acquiror has filed all
forms, reports, statements and other documents required to be filed
with the SEC, including without limitation (i) all Annual Reports on
Form 10-K, (ii) all Quarterly Reports on Form 10-Q, (iii) all proxy
statements relating to meetings of shareholders (whether annual or
special), (iv) all Current Reports on Form 8-K and (v) all other
reports, schedules, registration statements or other documents
(collectively referred to as the "Acquiror SEC Reports"). The
Acquiror SEC Reports were prepared in all material respects in
accordance with the requirements of applicable Law (including the
Securities Act or the Exchange Act, as the case may be, and the rules
and regulations of the SEC thereunder applicable to the Acquiror SEC
Reports) and the Acquiror SEC Reports did not at the time they were
filed contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(b) Each of the historical consolidated financial
statements (including, in each case, any related notes thereto)
contained in the Acquiror SEC Reports (i) have been prepared in
accordance with the published rules and regulations of the SEC and
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except (A) to the extent disclosed
therein or required by changes in generally accepted accounting
principles, (B) as may be indicated in the notes thereto and (C) in
the case of the unaudited financial statements, as permitted by the
rules and regulations of the SEC) and (ii) fairly present the
consolidated financial position of Acquiror and its subsidiaries as of
the respective dates thereof and the consolidated results of
operations and cash flows for the periods indicated (subject, in the
case of unaudited consolidated financial statements for interim
periods, to adjustments, consisting only of normal, recurring
accruals, necessary to present fairly such results of operations and
cash flows).
4.06 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in
the Acquiror SEC Reports filed prior to the date of this Agreement or as
contemplated by this Agreement, since November 13, 1998, Acquiror and its
subsidiaries have conducted their respective businesses only in the ordinary
course and in a manner consistent with past practice and there has not been any
Acquiror Material Adverse Effect.
4.07 BROKERS. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Acquiror Companies.
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ARTICLE V
COVENANTS OF THE STOCKHOLDERS
5.01 AFFIRMATIVE COVENANT. The Stockholders hereby covenant and
agree that, prior to the Closing Date, such person or entity will take all
commercially reasonable actions necessary to ensure that the Company complies
with Articles VI and VIII hereof.
5.02 NEGATIVE COVENANTS. Each of the Stockholders covenants and
agrees that such Stockholder will not:
(a) take any action that reasonably could be expected to
result in (i) any of the representations and warranties of (A) such
Stockholder set forth in Article II hereof or (B) Xxxxxxx and the
Company set forth in Article III hereof becoming untrue or (ii) any of
the conditions set forth in Articles X hereof not being satisfied; or
(b) initiate, solicit or encourage (including by way of
furnishing information or assistance), or take any other action to
facilitate, any inquiries or the making of any proposal relating to,
or that may reasonably be expected to lead to, any Competing
Transaction (hereinafter defined), or enter into discussions or
negotiate with any person or entity in furtherance of such inquiries
or to obtain a Competing Transaction, or agree to, or endorse, any
Competing Transaction, or authorize or permit any agent, investment
banker, financial advisor, attorney, accountant or other
representative retained by such Stockholder to take any such action,
and such Stockholder shall promptly notify Acquiror Companies of all
relevant terms of any such inquiries or proposals received by such
Stockholder or by any such agent, investment banker, financial
advisor, attorney, accountant or other representative relating to any
of such matters and if such inquiry or proposal is in writing, such
Stockholder shall promptly deliver or cause to be delivered to
Acquiror Companies a copy of such inquiry or proposal. For purposes
of this Agreement, "Competing Transaction" shall mean any merger,
consolidation, share exchange, business combination or similar
transaction involving the Company or any of its subsidiaries or the
acquisition in any manner, directly or indirectly, of a material
interest in any voting securities of, or a material equity interest in
a substantial portion of the assets of, the Company or any of its
subsidiaries, other than the transactions contemplated by this
Agreement.
ARTICLE VI
COVENANTS OF THE COMPANY AND XXXXXXX
6.01 AFFIRMATIVE COVENANTS OF THE COMPANY AND XXXXXXX. The Company
and Xxxxxxx hereby covenant and agree that, prior to the Closing Date, unless
otherwise expressly contemplated by this Agreement or consented to in writing
by the Acquiror Companies, the Company will and will cause each of its
subsidiaries to:
(a) operate its business in the usual and ordinary course
consistent with past practices;
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(b) use all reasonable efforts to preserve substantially
intact its business organization, maintain its rights and franchises,
retain the services of its respective officers and key employees and
maintain its relationships with its respective customers and
suppliers;
(c) maintain and keep its properties and assets in as
good repair and condition as at present, ordinary wear and tear
excepted, and maintain supplies and inventories in quantities
consistent with its customary business practice;
(d) use all reasonable efforts to keep in full force and
effect insurance and bonds comparable in amount and scope of coverage
to that currently maintained;
(e) ensure that the aggregate of (i) cash on hand and
(ii) accounts receivables at the Company shall not be less than
$22,982,619 Mexican Pesos and the aggregate outstanding balance of
(i) long-term debt and (ii) short-term debt shall not be greater than
$53,390,349 Mexican Pesos;
(f) ensure that the net assets of the Company shall be no
less than -$1,604,062 Mexican Pesos plus all net income earned from
October 31, 1998 through the Closing Date; and
(g) use its best efforts to ensure that Xxxxxxx shall
execute and deliver, along with Acquiror, the Acquisition Subs and the
Escrow Agent, the Escrow Agreement.
6.02 NEGATIVE COVENANTS OF THE COMPANY. Except as expressly
contemplated by this Agreement or otherwise consented to in writing by the
Acquiror Companies, from the date of this Agreement until the Closing, the
Company and Xxxxxxx will not do, and will not permit any of its subsidiaries to
do, any of the following:
(a) (i) increase the compensation payable to or to become
payable to any director or executive officer or their organizational
equivalency; (ii) increase the compensation payable or pay bonuses to
employees of the Company other than in the ordinary course of
business, (iii) grant any severance or termination pay (other than
pursuant to the normal severance practices of the Company or its
subsidiaries as in effect on the date of this Agreement) to, or enter
into any employment or severance agreement with, any director, officer
or employee; (iv) except as set forth in Section 3.10(d) of the
Company Disclosure Schedule, establish, adopt or enter into any
employee Benefit Plan or arrangement or (v) except as may be required
by applicable law or as set forth in Section 3.10(d) of the Company
Disclosure Schedule, amend, or take any other actions (including,
without limitation, the acceleration of vesting, waiving of
performance criteria or the adjustment of awards or any other actions
permitted upon a "change in control" (as defined in the respective
plans) of the Company, with respect to any of the Benefit Plans or any
of the plans, programs, agreements, policies or other arrangements
described in Section 3.10(d) of this Agreement;
(b) declare or pay any dividend on, or make any other
distribution in respect of, outstanding shares of capital stock or
other equity interests, except dividends by a wholly
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owned subsidiary of the Company to the Company or another wholly owned
subsidiary of the Company;
(c) (i) except as described in Section 3.03(c) of the
Company Disclosure Schedule, redeem, purchase or otherwise acquire any
shares of its or any of its subsidiaries' capital stock or any
securities or obligations convertible into or exchangeable for any
shares of its or its subsidiaries' capital stock (other than any such
acquisition directly from any wholly owned subsidiary of the Company
in exchange for capital contributions or loans to such subsidiary), or
any options, warrants or conversion or other rights to acquire any
shares of its or its subsidiaries' capital stock or any such
securities or obligations; (ii) effect any reorganization or
recapitalization of the Company or any of its subsidiaries; or (iii)
split, combine or reclassify any of its or its subsidiaries' capital
stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for, shares of
its or its subsidiaries' capital stock;
(d) (i) except as set forth in Section 3.03(a) hereof or
as described in Section 3.03(c) of the Company Disclosure Schedule,
issue (whether upon original issue or out of treasury), sell, grant,
award, deliver or limit the voting rights of any shares of any class
of its or its subsidiaries' capital stock, any securities convertible
into or exercisable or exchangeable for any such shares, or any
rights, warrants or options to acquire, any such shares; (ii) amend or
otherwise modify the terms of any such rights, warrants or options the
effect of which shall be to make such terms materially more favorable
to the holders thereof; or (iii) take any action to accelerate the
vesting of any of the stock options;
(e) acquire or agree to acquire, by merging or
consolidating with, by purchasing an equity interest in or a portion
of the assets of, or by any other manner, any business or any
corporation, partnership, association or other business organization
or division thereof, or otherwise acquire or agree to acquire any
assets of any other person (other than the purchase of assets from
suppliers or vendors in the ordinary course of business and consistent
with past practice);
(f) sell, lease, exchange, mortgage, pledge, transfer or
otherwise dispose of, or agree to sell, lease, exchange, mortgage,
pledge, transfer or otherwise dispose of, any of its assets or any
assets of any of its subsidiaries, except for pledges or dispositions
of assets in the ordinary course of business and consistent with past
practice;
(g) initiate, solicit or encourage (including by way of
furnishing information or assistance), or take any other action to
facilitate, any inquiries or the making of any proposal relating to,
or that may reasonably be expected to lead to, any Competing
Transaction, or enter into discussions or negotiate with any person or
entity in furtherance of such inquiries or to obtain a Competing
Transaction, or agree to, or endorse, any Competing Transaction, or
authorize or permit any of the officers, directors, employees or
agents of the Company or any of its subsidiaries or any agent,
investment banker, financial advisor, attorney, accountant or other
representative retained by the Company or any of the Company's
subsidiaries to take any such action, and the Company shall promptly
notify Acquiror of all relevant terms of any such inquiries or
proposals received by the Company or any of its subsidiaries or by any
such
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officer, director, employee, agent, investment banker, financial
advisor, attorney, accountant or other representative relating to any
of such matters and if such inquiry or proposal is in writing, the
Company shall promptly deliver or cause to be delivered to Acquiror
Companies a copy of such inquiry or proposal;
(h) release any third party from its obligations under
any existing standstill agreement or arrangement relating to a
Competing Transaction or otherwise under any confidentiality or other
similar agreement relating to information material to the Company or
any of its subsidiaries;
(i) propose to adopt any amendments to its Articles of
Incorporation or its Bylaws (or equivalent organizational documents)
that would have an adverse effect on the consummation of the
transactions contemplated by this Agreement;
(j) (i) change any of its significant accounting policies
or (ii) make or rescind any express or deemed election relating to
Taxes, settle or compromise any material claim, action, suit,
litigation, proceeding, arbitration, investigation, audit or
controversy relating to Taxes, or change any of its methods of
reporting income or deductions for tax purposes from those employed
in the preparation of the tax returns for the taxable year ending
December 31, 1998, except, in the case of clause (i) or clause (ii),
as may be required by Law or generally accepted accounting principles;
(k) incur any obligation for borrowed money or purchase
money indebtedness, whether or not evidenced by a note, bond,
debenture or similar instrument or under any financing lease, whether
pursuant to a sale-and-leaseback transaction or otherwise, except in
the ordinary course of business consistent with past practice;
(l) enter into any material arrangement, agreement or
contract with any third party (other than customers in the ordinary
course of business); or
(m) agree in writing or otherwise to do any of the
foregoing.
ARTICLE VII
COVENANTS OF ACQUIROR AND ACQUISITION SUBS
7.01 AFFIRMATIVE COVENANTS OF ACQUIROR AND ACQUISITION SUBS.
Acquiror and Acquisition Subs hereby covenant and agree that, prior to the
Closing, unless otherwise expressly contemplated by this Agreement or consented
to in writing by the Company, Acquiror and Acquisition Subs will:
(a) use all reasonable efforts to preserve substantially
intact their business organizations;
(b) maintain and keep their properties and assets in as
good repair and condition as at present, ordinary wear and tear
excepted, and maintain supplies and inventories in quantities
consistent with its customary business practice; and
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(c) use all reasonable efforts to keep in full force and
effect insurance and bonds comparable in amount and scope of coverage
to that currently maintained.
7.02 NEGATIVE COVENANTS OF ACQUIROR AND ACQUISITION SUBS. Except
as expressly contemplated by this Agreement or otherwise consented to in
writing by the Company, from the date of this Agreement until the Closing,
neither Acquiror nor Acquisition Subs will do any of the following:
(a) amend any of the material terms or provisions of the
Acquiror Shares;
(b) knowingly take any action that would result in a
failure to maintain the listing of the common stock of the Acquiror on
the New York Stock Exchange;
(c) propose to adopt any amendments to the Acquiror
Organizational Documents that would have an adverse effect on the
consummation of the transactions contemplated by this Agreement; or
(d) agree in writing or otherwise to do any of the
foregoing.
ARTICLE VIII
ADDITIONAL AGREEMENTS
8.01 NOTIFICATION OF CERTAIN MATTERS. The Company and Xxxxxxx
shall give prompt notice to Acquiror, and Acquiror shall give prompt notice to
the Company, orally and in writing, of (i) the occurrence, or failure to occur,
of any event which occurrence or failure would be likely to cause any
representation or warranty of the party giving such notice contained in this
Agreement to be untrue or inaccurate at any time from the date hereof to the
Closing Date, (ii) any material failure of the party giving such notice to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by such person hereunder within the time specified therefor and
(iii) any change or event having, or which, insofar as can be reasonably
foreseen, could have, a material adverse effect on the financial condition,
results of operations, business or prospects of Acquiror, Acquisition Subs or
the Company.
8.02 ACCESS AND INFORMATION.
(a) The Company shall, and shall cause its subsidiaries
to, (i) afford to Acquiror Companies and their officers, directors,
employees, accountants, consultants, legal counsel, agents and other
representatives (collectively, the "Acquiror Representatives") access
during ordinary business hours and at other reasonable times, upon
reasonable prior notice, to the officers, employees, accountants,
agents, properties, offices and other facilities of the Company and
its subsidiaries and to the books and records thereof and (ii) furnish
promptly to Acquiror and the Acquiror Representatives such information
concerning the business, properties, contracts, records and personnel
of the Company and its subsidiaries (including, without limitation,
financial, operating and other data and information) as may be
reasonably requested, from time to time, by Acquiror or the Acquiror
Representatives.
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(b) Acquiror shall, and shall cause its subsidiaries to,
(i) afford to the Company and its officers, directors, employees,
accountants, consultants, legal counsel, agents and other
representatives (collectively, the "Company Representatives") access
during ordinary business hours, upon reasonable prior notice, to the
officers, employees, accountants, agents, properties, offices and
other facilities of Acquiror and its subsidiaries and to the books and
records thereof and (ii) furnish promptly to the Company and the
Company Representatives such information concerning the business,
properties, contracts, records and personnel of Acquiror and its
subsidiaries (including, without limitation, financial, operating and
other data and information) as may be reasonably requested, from time
to time, by the Company or the Company Representatives.
(c) Notwithstanding the foregoing provisions of this
Section 8.02, neither party shall be required to grant access or
furnish information to the other party to the extent that such access
or the furnishing of such information is prohibited by Law or
contract. No investigation by the parties hereto made heretofore or
hereafter shall affect the representations and warranties of the
parties that are contained herein and each such representation and
warranty shall survive such investigation.
(d) Each party to this Agreement shall hold in confidence
all nonpublic information received from the other party to this
Agreement until such time as such information is otherwise publicly
available and, if this Agreement is terminated, each party will
deliver to the other party all documents, work papers and other
materials (including copies) obtained by such party or on its behalf
from another party as a result of this Agreement or in connection
herewith, whether so obtained before or after the execution hereof.
8.03 APPROPRIATE ACTION; CONSENTS; FILINGS.
(a) The Company and Acquiror Companies shall each use,
and shall cause each of their respective subsidiaries to use, and each
of the Stockholders shall use all reasonable efforts promptly (i) to
take, or cause to be taken, all appropriate action, and do, or cause
to be done, all things necessary, proper or advisable under applicable
Law or otherwise to consummate and make effective the transactions
contemplated by this Agreement, (ii) to obtain from any Governmental
Entities any consents, licenses, permits, waivers, approvals,
authorizations or orders required to be obtained by the Company,
Acquiror Companies or any of the Stockholders, respectively, or any of
the Company's or Acquiror's Companies respective subsidiaries, in
connection with the authorization, execution, delivery and performance
of this Agreement and the consummation of the transactions
contemplated hereby, (iii) to make all necessary filings, and
thereafter make any other required submissions, with respect to this
Agreement and the Exchange required under (A) the Securities Act and
the Exchange Act and the rules and regulations thereunder, and any
other applicable federal or state securities laws and (B) any other
applicable Law; provided that Acquiror Companies and the Company shall
cooperate with each other in connection with the making of all such
filings, including providing copies of all such documents to the
nonfiling party and its advisors prior to filing and, if requested,
shall accept all reasonable additions, deletions or changes suggested
in connection therewith. The Company and
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Acquiror Companies shall furnish all information required for any
application or other filing to be made pursuant to the rules and
regulations of any applicable Law in connection with the transactions
contemplated by this Agreement.
(b) Acquiror Companies, the Company and each of the
Stockholders agree, and Acquiror Companies and the Company shall cause
each of their respective subsidiaries, to cooperate and to use all
reasonable efforts to contest and resist any action, including
legislative, administrative or judicial action, and to have vacated,
lifted, reversed or overturned any decree, judgment, injunction or
other order (whether temporary, preliminary or permanent) (an "Order")
that is in effect and that restricts, prevents or prohibits the
consummation of the Exchange or any other transactions contemplated by
this Agreement, including, without limitation, by vigorously pursuing
all available avenues of administrative and judicial appeal and all
available legislative action. Acquiror Companies, the Company and
each of the Stockholders also agree to take any and all reasonable
actions, including, without limitation, the disposition of assets or
the withdrawal from doing business in particular jurisdictions,
required by regulatory authorities as a condition to the granting of
any approvals required in order to permit the consummation of the
Exchange or as may be required to avoid, lift, vacate or reverse any
legislative or judicial action that would otherwise cause any
condition to the Exchange not to be satisfied; provided, however, that
in no event shall any party take, or be required to take, any action
that could reasonably be expected to have a Company Material Adverse
Effect or an Acquiror Material Adverse Effect.
(c) The Company, Acquiror Companies and each of the
Stockholders shall each promptly give (or shall cause their respective
subsidiaries to give) any notices regarding the Exchange, this
Agreement or the transactions contemplated hereby to third parties
required by Law or by any contract, license, lease or other agreement
to which such person is a party or by which such person is bound, and
use (and cause its subsidiaries to use) all reasonable efforts to
obtain any third party consents (i) necessary, proper or advisable to
consummate the transactions contemplated by this Agreement, (ii)
otherwise required under any contracts, licenses, leases or other
agreements in connection with the consummation of the transactions
contemplated by this Agreement or (iii) required to prevent a Company
Material Adverse Effect or an Acquiror Material Adverse Effect,
respectively, from occurring after the Closing.
(d) If any party shall fail to obtain any third party
consent described in subsection (c)(i) above, such party shall use all
reasonable efforts, and shall take any such actions reasonably
requested by the other parties, to limit the adverse effect upon the
Company and Acquiror Companies, their respective subsidiaries, and
their respective businesses resulting, or which could reasonably be
expected to result after the Closing, from the failure to obtain such
consent.
8.04 PUBLIC ANNOUNCEMENTS. Acquiror, Acquisition Subs and the
Company shall consult with each other before issuing any press release or
otherwise making any public statements with respect to this Agreement or the
Exchange and shall not issue any such press release or make any such public
statement prior to such consultation; provided, however, that a party may,
without consulting with the other party, issue such a press release or make
such a public statement if required
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by applicable Law or the rules of a national securities exchange if such party
has used commercially reasonable efforts to consult with the other party but
has been unable to do so in a timely manner.
8.05 EXPENSES. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expenses; provided that the actual and reasonable legal
fees incurred by the Company and the Stockholders in connection with the
negotiation and Closing of this Agreement shall be borne by the Company.
Except as provided in the preceding sentence, the Stockholders shall not
charge the Company or any of its subsidiaries, or cause the Company or any of
its subsidiaries to pay or be liable, for any costs or expenses incurred by any
of the Stockholders in connection with this Agreement or the transactions
contemplated hereby.
8.06 EMPLOYEES OF COMPANY. As soon as reasonably practicable after
the Closing Date, Acquiror shall provide employee benefit plans and
arrangements to employees of the Company and its subsidiaries that are the same
as the employee benefit plans and arrangements of Acquiror for similarly
situated employees of the Acquiror as in effect immediately prior to the
Closing Date. The employees of Company and its subsidiaries shall be credited
for their actual years of service with the Company for purposes of eligibility,
vesting and benefit accrual under all Acquiror benefit plans including, but not
limited to, vacation, severance, retirement and disability plans. Such
employee benefits under the Acquiror medical plan shall not be subject to any
exclusions for any pre-existing conditions, and credit shall be received for
any deductibles or out-of-pocket amounts previously paid. Nothing in this
Agreement is intended to confer upon any employee of the Company or its
subsidiaries retained ("Retained Employees") any right to continued employment
after evaluation by Acquiror and its affiliates of their employment needs at
any time after the Closing; provided, however, that any severance liabilities
incurred as a result of any termination of employment of any Retained Employees
after the Closing shall not result in any liability of Xxxxxxx under Article
IX. Notwithstanding any provision in this Agreement to the contrary, Acquiror
expressly reserves the right to amend, modify, or terminate any benefit plan or
program established or maintained by Acquiror or any of its affiliates
(including, without limitation, the Company or its subsidiaries) for the
benefit of the Retained Employees.
ARTICLE IX
INDEMNIFICATION
9.01 IN GENERAL. Subject to the terms and conditions of this
Article IX, Xxxxxxx hereby agrees to indemnify, defend and hold harmless
Acquiror Companies and their directors, officers, employees, consultants,
affiliates and controlling persons (hereinafter, including the Company and its
subsidiaries after the Closing collectively, the "Acquiror Indemnified
Parties"), from and against all Claims asserted against, resulting from,
imposed upon or incurred by Acquiror or any Acquiror Indemnified Party,
directly or indirectly, by reason of, arising out of, or resulting from (a) the
inaccuracy or breach of any representation or warranty of the Company or any of
the Stockholders contained in or made pursuant to this Agreement or (b) the
breach of any covenant or agreement of the Company or any of the Stockholders
contained in or made pursuant to this Agreement. As used in this Article IX,
the term "Claim" shall include (i) all debts, liabilities and obligations, (ii)
all
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losses, damages, costs and expenses (including, without limitation, interest
(including prejudgment interest in any litigated matter), penalties, court
costs and reasonable attorneys' fees and expenses), and (iii) all demands,
claims, actions, costs of investigation, causes of action, proceedings,
arbitrations, judgments, settlements and assessments, whether or not ultimately
determined to be valid.
9.02 NO EXHAUSTION OF REMEDIES. Xxxxxxx acknowledges that his
obligation is independent of the obligations of the Company pursuant to this
Agreement, and that Xxxxxxx waives any right to require the Acquiror
Indemnified Parties to (i) proceed against the Company or (ii) pursue any other
remedy whatsoever in the power of the Acquiror Indemnified Parties.
9.03 DEFENSE OF THIRD PARTY CLAIMS. The obligation of Xxxxxxx to
indemnify the Acquiror Indemnified Parties under this Article IX with respect
to Claims relating to or arising from third parties (a "Third Party Claim")
shall be subject to the following terms and conditions:
(a) Notice and Defense. The Acquiror Indemnified Party
will give the other party or parties (whether one or more, the
"Indemnifying Party") prompt written notice of any such Third Party
Claim, and the Indemnifying Party may undertake the defense thereof by
representatives chosen by it upon written notice to the Acquiror
Indemnified Party provided within 20 days of receiving notice of such
Third Party Claim (or sooner if the nature of the Third Party Claim so
requires). Failure of the Acquiror Indemnified Party to give such
notice shall not affect the Indemnifying Party's duty or obligations
under this Article IX, except to the extent the Indemnifying Party is
materially prejudiced thereby. The Acquiror Indemnified Party shall
make available to the Indemnifying Party or its representatives all
records and other materials required by the Indemnifying Party and in
the possession or under the control of the Acquiror Indemnified Party,
for the use of the Indemnifying Party and its representatives in
defending any such claim, and shall in other respects give reasonable
cooperation in such defense.
(b) Failure to Defend. If the Indemnifying Party, within
20 days after notice of any such Third Party Claim (or sooner if the
nature of any Third Party Claim so requires), fails to undertake the
defense of such Third Party Claim actively and in good faith, then the
Acquiror Indemnified Party will have the right to undertake the
defense, compromise or settlement of such Third Party Claim, or
consent to the entry of a judgment with respect thereto.
(c) Acquiror Indemnified Party's Rights. Anything in
this Article IX to the contrary notwithstanding, (i) if there is a
reasonable probability that the Third Party Claim may adversely affect
the Acquiror Indemnified Party other than as a result of money damages
or other money payments in an aggregate amount of less than $100,000,
the Acquiror Indemnified Party shall have the right to defend,
compromise or settle such Third Party Claim (provided that the
Acquiror Indemnified Party shall not settle such Third Party Claim or
consent to any judgment without first obtaining the consent of the
Indemnifying Party, which shall not be unreasonably withheld), and
(ii) the Indemnifying Party shall not without the written consent of
the Acquiror Indemnified Party, settle or compromise any Third Party
Claim or consent to the entry of any judgment that does not include as
an unconditional term
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thereof the giving by the claimant or the plaintiff to the Acquiror
Indemnified Party of an unconditional release from all liability in
respect of such Third Party Claim.
9.04 PAYMENT; ARBITRATION. Upon the occurrence of a Claim for
which indemnification is believed to be due hereunder, the Indemnified Party
shall provide notice of such Claim to the Indemnifying Party, stating in
specific terms the circumstances giving rise to the Claim, specifying the
amount of the Claim and making a request for any payment then believed due.
Any Claim shall be conclusive against the Indemnifying Party in all respects 30
days after receipt by the Indemnifying Party of such notice, unless within such
period the Indemnifying Party sends the Indemnified Party a notice disputing
the propriety of the Claim. Such notice of dispute shall describe the basis
for such objection and the amount of the Claim as to which the Indemnifying
Party does not believe should be subject to indemnification. Upon receipt of
any such notice of dispute, both the Indemnified Party and the Indemnifying
Party shall use all reasonable efforts to cooperate and arrive at a mutually
acceptable resolution of such dispute within the next 30 days. If a mutually
acceptable resolution cannot be reached between the Indemnified Party and the
Indemnifying Party with such 30-day period, either party may submit the dispute
for resolution by binding arbitration pursuant to the provisions of this
Section 9.04. If a party elects to submit such matter to arbitration, such
party shall provide notice to the other party of its election to do so, and the
parties shall attempt to appoint a single arbitrator. If the parties are
unable within 10 days of receipt of the notice to agree on a single arbitrator,
then each party shall appoint one arbitrator, and the two arbitrators so
appointed shall name a third arbitrator within a period of 10 days of their
nomination. If the two arbitrators fail to appoint a third arbitrator within
such 10-day period, a third arbitrator shall be appointed pursuant to the
Commercial Arbitration Rules of the American Arbitration Association. In all
respects, such panel shall be governed by the American Arbitration
Association's then existing Commercial Arbitration Rules, and the place of
arbitration shall be in a city mutually selected by the Indemnifying Party and
the Indemnified Party (or, if no city can be mutually agreed upon within 10
days, then in Houston, Texas). If it is finally determined that all or a
portion of such Claim amount is owed to the Indemnified Party, then such Claim
amount shall be satisfied in accordance with Section 9.02 hereof. Judgment
upon the award resulting from arbitration may be entered in any court having
jurisdiction for direct enforcement, or any application may be made to a court
for a judicial acceptance of the award and an order of enforcement, as the case
may be.
9.05 SATISFACTION OF CLAIMS FROM ESCROW SHARES. After the Closing
Date and except that any Claims based on fraud shall not be subject to the
following limitations, the obligations and liabilities of Xxxxxxx pursuant to
this Agreement shall be satisfied solely, and from no other source, from
payments of the Escrow Shares and the Acquiror Shares escrowed in the closing
of the Agreement and Plan of Merger for the Xxxxxxx Group International, Inc.
("U.S. Acquisition") (together, the "Full Escrow Shares") by delivery to the
Acquiror Indemnified Parties. Pursuant to the terms of the Escrow Agreement,
if Xxxxxxx is determined to owe a Claim amount pursuant to the procedures set
forth in Section 9.04, then the amount due the Indemnified Party hereunder
shall be satisfied by the delivery to the Indemnified Party pursuant to the
Escrow Agreement of Full Escrow Shares equal in value to the amount of the
Claim to be satisfied, and the Claim shall be deemed paid and satisfied upon
receipt by the Indemnified Party of certificates representing such number of
Full Escrow Shares duly endorsed for transfer to the Indemnified Party. The
per share value of the Full Escrow Shares for purposes of this Article IX and
the Escrow Agreement with respect to a particular Claim shall be the Market
Value (as defined herein) of the Full Escrow Shares.
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The "Market Value" of a Full Escrow Share shall be the price of the Acquiror
Stock on the later of the Closing Date or the closing of the U.S. Acquisition,
(regardless of the actual trading price for the Acquiror Stock) with
appropriate adjustment to take into account any stock split, reverse stock
split, stock dividend, recapitalization, share exchanges or other similar
capital adjustments with respect (including by reason of merger, consolidation
or other business combination involving Acquiror) to the Full Escrow Shares.
The Market Value of the Additional Corpus (as such term is defined in the
Escrow Agreement) shall be determined by mutual agreement of Xxxxxxx and the
Acquiror Companies. In the event that such parties cannot in good faith agree
on the market value of the Additional Corpus, the matter shall be settled by
binding arbitration in accordance with the procedures set forth herein.
Xxxxxxx shall have the power and authority to make all decisions with regard to
the settlement of Claims brought pursuant to Section 9.01 of this Agreement
from the Full Escrow Shares.
9.06 LIABILITY LIMITATIONS; SURVIVAL OF REPRESENTATIONS AND
WARRANTIES. All representations, warranties, covenants and agreements of the
Company and the Stockholders in this Agreement or made pursuant hereto shall
survive the Closing and any investigation thereof for one year after the later
of the Closing Date or the closing of the U.S. Acquisition, and Stockholders
shall have no liability under this Article IX unless written notice of a Claim
is provided within such period. After the Closing, the Acquiror Indemnified
Parties shall not be entitled to indemnification for Claims from the Full
Escrow Shares except to the extent the aggregate amount for all claims exceeds
$25,000. After the Closing, all claims by the Acquiror Indemnified Parties
pursuant to this Agreement shall be limited to the Full Escrow Shares, except
for any Claims of fraud. If any Acquiror Indemnified Party recovers against an
Indemnifying Party for a Claim and there exists the possibility of recovery
against any insurance policy in effect covering such Claim, the Indemnifying
Party shall be entitled to pursue recovery under such insurance policy to the
extent of the Claim.
ARTICLE X
CONDITIONS
10.01 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE ACQUIROR COMPANIES.
The obligation of the Acquiror Companies to effect the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Closing of the following conditions, any or all of which may be waived by
Acquiror Companies, in whole or in part, to the extent permitted by applicable
law:
(a) Each of the representations and warranties of the
Company and the Stockholders contained in this Agreement shall be true
and correct in all material respects (without duplication of any
materiality exception contained in any individual representation and
warranty) as of the date of this Agreement and as of the Closing Date
as though made again as of the Closing Date. Acquiror shall have
received a certificate of the President, or the organizational
equivalency, and the Chief Financial Officer of the Company and from
Xxxxxxx, dated the Closing Date, to such effect with respect to the
representations and warranties of the Company set forth in Article IV
hereof;
(b) The Company and the Stockholders shall have performed
or complied with all agreements and covenants required by this
Agreement to be performed or complied with
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by such person on or prior to the Closing Date. Acquiror shall have
received a certificate of the President, or the organizational
equivalency, and the Chief Financial Officer of the Company, dated the
Closing Date, to such effect with respect to the Company's performance
and compliance;
(c) The resignations, effective at the Closing Date, of
each of directors and officers of the Company, or the organizational
equivalency, shall have been delivered to Acquiror;
(d) The applicable waiting period under any competition
Laws, Regulations and Orders of foreign Governmental Entities, as set
forth in Acquiror's Disclosure Letter or the Company's Disclosure
Letter, shall have expired or been terminated;
(e) No court or Governmental Entity shall have enacted,
issued, promulgated, enforced or entered any Laws (whether temporary,
preliminary or permanent) which is in effect and which has the effect
of making the Exchange illegal or otherwise prohibiting consummation
of the Exchange;
(f) Acquiror Companies shall have received the Escrow
Agreement, duly executed and delivered by Xxxxxxx and the Escrow
Agent; and
10.02 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY. The
obligation of the Company to effect the transactions contemplated hereby shall
be subject to the satisfaction at or prior to the Closing of the following
conditions, any or all of which may be waived by the Company, in whole or in
part, to the extent permitted by applicable law:
(a) Each of the representations and warranties of
Acquiror Companies contained in this Agreement shall be true and
correct in all material respects (without duplication of any
materiality exception contained in any individual representation and
warranty) as of the date of this Agreement and as of the Closing Date
as though made again as of the Closing Date. The Company shall have
received a certificate of the President and the Chief Financial
Officer of Acquiror and the Acquisition Subs, dated the Closing Date,
to such effect;
(b) Acquiror shall have performed or complied with all
agreements and covenants required by this Agreement to be performed or
complied with by it on or prior to the Closing Date. The Company
shall have received a certificate of the President and the Chief
Financial Officer of Acquiror and the Acquisition Subs, dated the
Closing Date, to such effect;
(c) No court or Governmental Entity shall have enacted,
issued, promulgated, enforced or entered any Laws (whether temporary,
preliminary or permanent) which is in effect and which has the effect
of making the Exchange illegal or otherwise prohibiting consummation
of the Exchange;
(d) The applicable waiting period under any competition
Laws, Regulations and Orders of foreign Governmental Entities, as set
forth in Acquiror's Disclosure Letter or the Company's Disclosure
Letter, shall have expired or been terminated; and
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ARTICLE XI
MISCELLANEOUS
11.01 TERMINATION. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing Date:
(a) by mutual consent of Acquiror, Acquisition Subs,
Xxxxxxx and the Company;
(b) by either Acquiror, Acquisition Subs, Xxxxxxx or the
Company if the Closing has not occurred on or before December 31,
1998;
(c) by Acquiror, upon a breach of any covenant or
agreement on the part of the Company or any of the Stockholders set
forth in this Agreement, or if any representation or warranty of the
Company or any of the Stockholders shall have become untrue, in either
case such that the conditions set forth in Section 10.01(a) or Section
10.01(b) would not be satisfied (a "Terminating Company Breach");
provided that, if such Terminating Company Breach is curable by the
Company or any of the Stockholders, as the case may be, through the
exercise of reasonable efforts and for so long as the Company or such
Stockholder or Stockholders continue to exercise such reasonable
efforts, Acquiror may not terminate this Agreement under this Section
11.01(c);
(d) by the Company, upon breach of any covenant or
agreement on the part of Acquiror Companies set forth in this
Agreement, or if any representation or warranty of Acquiror Companies
shall have become untrue, in either case such that the conditions set
forth in Section 10.02(a) or Section 10.02(b) would not be satisfied
(a "Terminating Acquiror Breach"); provided that, if such Terminating
Acquiror Breach is curable by Acquiror through the exercise of its
reasonable efforts and for so long as Acquiror continues to exercise
such reasonable efforts, the Company may not terminate this Agreement
under this Section 11.02(d); or
(e) by either Acquiror Companies or the Company, if there
shall be any Order which is final and nonappealable preventing the
consummation of the Exchange, unless the party relying on such Order
has not complied with its obligations under Section 8.03(b).
11.02 EFFECT OF TERMINATION. In the event of any termination of
this Agreement pursuant to Section 11.01, the Stockholders, the Company,
Acquiror and Acquisition Subs shall have no obligation or liability to each
other except that (i) the provisions of Sections IX shall survive any such
termination, and (ii) nothing herein and no termination pursuant hereto will
relieve any party from liability for any breach of this Agreement.
11.03 WAIVER AND AMENDMENT. Any provision of this Agreement may be
waived at any time by the party that is entitled to the benefits thereof. This
Agreement may not be amended or supplemented at any time, except by an
instrument in writing signed on behalf of each party hereto.
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The waiver by any party hereto of any condition or of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any other
condition or subsequent breach.
11.04 ENTIRE AGREEMENT; THIRD PARTY BENEFICIARIES. This Agreement
(including the Disclosure Schedules and Exhibits hereto) constitutes the entire
agreement and supersedes all other prior agreements and understandings, both
oral and written, among the parties or any of them, with respect to the subject
matter hereof, and neither this nor any document delivered in connection with
this Agreement confers upon any person not a party hereto any rights or
remedies hereunder except as provided in Article IX hereof.
11.05 ASSIGNMENT. This Agreement shall inure to the benefit of and
will be binding upon the parties hereto and their respective legal
representatives, successors and permitted assigns. This Agreement shall not be
assignable by any party hereto without the consent of the other parties hereto,
except that the parties hereto agree that the right and obligations of the
Acquiror Companies may be assigned to an affiliate of the Acquiror.
11.06 CERTAIN DEFINITIONS. For the purposes of this Agreement, the
term:
(a) "affiliate" means a person that directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the first mentioned
person;
(b) "business day" means any day other than a day on
which banks in Mexico and The Netherlands are authorized or obligated
to be closed;
(c) "Closing" shall mean a meeting, which shall be held
in accordance with Section 1.02 of this Agreement, of persons
interested in the transactions contemplated by this Agreement at which
all documents deemed necessary by the parties to this Agreement to
evidence the fulfillment or waiver of all conditions precedent to the
consummation of the transactions contemplated by the Agreement are
executed and delivered;
(d) "Closing Date" shall mean the date of the Closing as
determined pursuant to Section 1.02 of this Agreement.
(e) "control" (including the terms "controlled,"
"controlled by" and "under common control with") means the possession,
directly or indirectly or as trustee or executor, of the power to
direct or cause the direction of the management or policies of a
person, whether through the ownership of stock or as trustee or
executor, by contract or credit arrangement or otherwise;
(f) "person" means an individual, corporation,
partnership, limited liability company, association, trust,
unincorporated organization, other entity or group (as defined in
Section 13(d) of the Exchange Act);
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(g) "Significant Subsidiary" means any subsidiary of
Acquiror that would constitute a Significant Subsidiary within the
meaning of Rule 1-02 of Regulation S-X of the SEC;
(h) "subsidiary" or "subsidiaries" of the Company,
Acquiror, Acquisition Subs or any other person, means any
corporation, partnership, joint venture or other legal entity of which
the Company, Acquiror, Acquisition Subs or any such other person, as
the case may be (either alone or through or together with any other
subsidiary), owns, directly or indirectly, 50% or more of the stock or
other equity interests the holders of which are generally entitled to
vote for the election of the board of directors or other governing
body of such corporation or other legal entity;
(i) "Tax" or "Taxes" shall mean any and all taxes,
charges, fees, levies, assessments, duties or other amounts payable to
any federal, state, local or foreign taxing authority or agency,
including, without limitation, (i) income, franchise, profits, gross
receipts, minimum, alternative minimum, estimated, ad valorem, value
added, sales, use, service, real or personal property, capital stock,
license, payroll, withholding, disability, employment, social
security, workers compensation, unemployment compensation, utility,
severance, excise, stamp, windfall profits, transfer and gains taxes,
(ii) customs, duties, imposts, charges, levies or other similar
assessments of any kind, and (iii) interest, penalties and additions
to tax imposed with respect thereto; and
(j) "Trading Day" shall mean each business day on which
the New York Stock Exchange is open for trading.
11.07 NOTICES. All notices, requests, demands, claims and other
communications that are required to be or may be given under this Agreement
shall be in writing and (i) delivered in person or by courier, (ii) sent by
telecopy or facsimile transmission, or (iii) mailed, certified first class
mail, postage prepaid, return receipt requested, to the parties hereto at the
following addresses:
If to the Company: A.G.I. Mexicana S.A. de C.V.
Xxxxx xx xx Xxxxxxx #000
xxx.Xxxx Xxx Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to: Xxxx & Xxxxxxxxxx, P.C.
0000 Xxxxx Xxxx Xxx Xxxxxxx
0000 Xxxx Xxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxx
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If to the Stockholders: Xx. Xxxxxx X. Xxxxxxx
c/o The Xxxxxxx Group International, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
with a copy to: Xxxx & Xxxxxxxxxx, P.C.
0000 Xxxxx Xxxx Xxx Xxxxxxx
0000 Xxxx Xxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxx
If to Acquiror or Acquisition
Subs: Core Laboratories N.V.
Xxxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Telecopy: 011-31-20-627-9886
Attention: Xxxxxxx Xxxxxxxx
with a copy to: Core Laboratories, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxx
and to: Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: T. Xxxx Xxxxx
or to such other address as the parties hereto shall have furnished to the
other parties hereto by notice given in accordance with this Section 11.07.
Such notices shall be effective (i) if delivered in person or by courier, upon
actual receipt by the intended recipient, (ii) if sent by telecopy or facsimile
transmission, when the sender receives telecopier confirmation that such notice
was received at the telecopier number of the addressee, or (iii) if mailed,
upon the earlier of five days after deposit in the mail and the date of
delivery as shown by the return receipt therefor.
11.08 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the substantive law of the State of Texas and the
United States of America, without giving effect to the principles of conflicts
of law thereof.
11.09 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms,
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provision, covenants and restrictions of this Agreement shall continue in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such
determination that any term, provision, covenant or restriction is invalid,
void or unenforceable, the parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
11.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts either by original or facsimile signatures, each of which shall be
an original, but all of which together shall constitute one and the same
agreement.
11.11 HEADINGS. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the Company and each of the Acquiror Companies
have each caused this Agreement to be executed on its behalf by its officer
thereunto duly authorized, and each of the Stockholders has executed this
Agreement, all as of the date first above written.
CORE LABORATORIES N.V.
By: Core Laboratories International B.V.,
its Sole Managing Director
By
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
CORE LABORATORIES INTERNATIONAL B.V.
By
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
SAYBOLT INTERNATIONAL B.V.
By
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
A.G.I. MEXICANA S.A. DE C.V.
By
----------------------------------------
Name:
Title:
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STOCKHOLDERS
By
----------------------------------------
Xxxxxx X. Xxxxxxx
By
----------------------------------------
Xxxxxx Xxxxxx X. xx Xxxxx
By
----------------------------------------
Xxxxxx Xxxxx Ariza
By
----------------------------------------
Xxxxxxx Xxxxxxxxx Xxxxxx
By
----------------------------------------
Xxxxxxx Xxxxxx Xxxxx
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NUMBER OF SHARES
OF COMPANY Accredited Acquiror
Stockholders: STOCK OWNED Investor Shares
-------------------------- ------------ ----------
SERIES A Series B
---------- ----------
Xxxxxx X. Xxxxxxx 24,500 5,432,806 [X] 7,350
Xxxxxx Xxxxxx X.xx Xxxxx 20,000 4,434,944 6,000
Xxxxxx Xxxxx Ariza 2,500 554,368 750
Xxxxxxx Xxxxxxxxx Xxxxxx 1,500 332,621 450
Xxxxxxx Xxxxxx Xxxxx 1,500 332,621 450
------- ----------- -------
Total 50,000 11,087,360 15,000
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EXHIBIT A
ESCROW AGREEMENT
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