EXHIBIT 2.3
AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
THIS AMENDED AND RESTATED STOCK PURCHASE AGREEMENT ("AGREEMENT"), is
entered into this ___ day of March, 1999 ("EFFECTIVE DATE"), by and among ABB
Industrial Systems, Inc., an Ohio corporation, ("ABB"), Flow International
Corporation, a Washington corporation ("BUYER") and ABB Autoclave Systems Inc.,
a Delaware corporation ("COMPANY").
RECITALS
A. Company is a joint venture formed pursuant to a joint venture
agreement dated September 30, 1986 by ABB and Autoclave Engineers, a division of
Snap-Tite Inc., a Delaware corporation ("AUTOCLAVE").
B. ABB wishes to sell and Buyer wishes to buy the ABB Shares, as defined
below, pursuant to the terms and conditions set forth herein.
C. The parties entered into a Stock Purchase Agreement dated March 15,
1999 together with the Stock Purchase Agreement by and among Asea Xxxxx Boveri
AB, a Swedish company and Gigantissimo 2131 AB under change of name to Flow
International FPS AB, a Swedish company with respect to the issued and
outstanding stock of ABB Pressure Systems AB, a Swedish company with the
registration number 556064-1770 which provided pursuant to Section 7.16 that the
parties would negotiate in good faith such other agreements to incorporate the
changes resulting from the acquisition of certain intellectual property rights.
INTENDING TO BE LEGALLY BOUND, and in consideration of the premises and the
mutual representations, warranties, covenants and agreements contained herein,
Buyer, Company, and ABB hereby agree as follows:
ARTICLE I
PURCHASE OF ABB SHARES
1.1 PURCHASE OF SHARES. In consideration for the sale, assignment and
transfer of the ABB Shares, as defined herein, and the representations and
warranties contained herein, Buyer agrees to pay to ABB the aggregate amount of
One Million Eight Hundred Fifty-Seven Thousand Five Hundred US Dollars
(US$1,857,500) ("PURCHASE PRICE").
1.2 CLOSING AND EFFECTIVE DATE. The Closing shall take place on March 31,
1999 (the "CLOSING DATE" or "CLOSING"), at the offices of Asea Xxxxx Boveri AB
in Vasteras, Sweden, unless another date or place is agreed to in writing by the
parties hereto.
52
1.3 CONDITION PRECEDENT TO CLOSING. The respective obligation of each
party to effect the transaction contained herein shall be subject to the
closings of the transactions set forth in the Transaction Agreements, as defined
below.
1.4 DELIVERY OF CERTIFICATES. At the Closing, ABB shall surrender such
all certificates representing the ABB Shares to Buyer, together with duly
executed stock powers endorsed in blank to effect a transfer of such ABB Shares.
1.5 CLOSING DATE DELIVERIES.
(a) On the Closing Date, Company and ABB shall deliver to Buyer the
following validly executed instruments:
(i) Certified copy of resolutions of the Boards of Directors of
Company and ABB authorizing the execution and performance of this Agreement and
the transaction contemplated herein;
(ii) Officer's Certificate of Company, dated as of the Closing Date,
in form and substance reasonably satisfactory to Buyer, certifying that no
amendments have been made to the Charter Documents, as defined below, of Company
since a specified date;
(iii) Resignations of the members of the Board of Directors and
officers of Company appointed by ABB; and
(iv) Such other instruments or documents necessary to consummate this
Agreement, all satisfactory in form and substance to Buyer.
(b) On the Closing Date, Buyer shall deliver to ABB and Company the
following validly executed instruments:
(i) One Million Eight Hundred Fifty-Seven Thousand Five Hundred US
Dollars (US$1,857,500) payable to ABB by wire transfer of immediately available
funds;
(ii) Certified copy of resolutions of the Board of Directors of Buyer
authorizing the execution and performance of this Agreement and the transaction
contemplated herein; and
(iii) Such other instruments or documents necessary to consummate
this Agreement, all satisfactory in form and substance to Buyer.
53
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMPANY AND ABB
Company and ABB, jointly and severally, represent and warrant to Buyer as
follows:
2.1 ORGANIZATION, STANDING, AND POWER. Company is a corporation duly
organized, validly existing, and in good standing under the laws of Delaware.
Company has all requisite power and authority to own, lease, and operate its
properties and to carry on its businesses as now being conducted, and is duly
qualified, validly existing and in good standing (in such jurisdictions in which
good standing is applicable) to do business in each jurisdiction in which a
failure to so qualify would have a material adverse effect on the Business
Condition (as hereinafter defined) of Company. As used in this Agreement,
"BUSINESS CONDITION" with respect to any entity shall mean the business,
financial condition, results of operations or assets. Company has no
subsidiary. Company has delivered to Buyer complete and correct copies of the
articles, certificate, bylaws, and/or other primary charter and organizational
documents ("CHARTER DOCUMENTS") of Company, in each case, as amended to the date
hereof.
2.2 CAPITAL STRUCTURE.
(a) The authorized capital stock of Company consists of: 3,000 shares of
Class A Common Stock, $1.00 par value of which 51 shares are issued and
outstanding, all of which shares are held by ABB; 3,000 shares of Class B
Common Stock, $1.00 par value of which 49 shares are issued and outstanding, all
of which shares are held by Autoclave; 4,000 shares of Class C Common Stock,
$1.00 par value of which 100 shares are issued and outstanding, 49 shares of
which are held by ABB and 51 shares of which are held by Autoclave (together
"COMPANY SHARES"). All of the issued and outstanding Company Shares held by ABB
are the "ABB SHARES". There is no preferred stock of Company. All Company
Shares have been duly authorized and validly issued, are fully paid and
nonassessable, and were issued in compliance with applicable securities laws and
regulations. ABB is the lawful and beneficial owner of all of the ABB Shares
and has valid title thereto, free and clear of all liens and encumbrances (other
than restrictions under securities laws), of every kind.
(b) All outstanding Company Shares are not subject to any preemptive
rights, or to any agreement to which Company is a party or by which Company may
be bound. There are no options, warrants, calls, conversion rights,
commitments, agreements, contracts, understandings, restrictions, arrangements
or rights of any character to which Company is a party or by which Company may
be bound obligating Company to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of the capital stock of Company, or
obligating Company to grant, extend, or enter into any such option, warrant,
call, conversion right, conversion payment, commitment, agreement, contract,
understanding, restriction, arrangement or right. Company does not have
outstanding any bonds, debentures, notes, or other indebtedness the holders of
which, (i) have the right to vote (or convertible or exercisable into securities
having the right to vote) with holders of Company Shares on any matter, or (ii)
are or will become entitled to receive any payment as a result of the execution
of this Agreement or the completion of the transactions contemplated hereby.
2.3 AUTHORITY. Company and ABB have, or shall have prior to the Closing,
all requisite corporate power and authority to enter into this Agreement and,
subject to the
54
Company's Required Statutory Approvals, to consummate the transactions
contemplated hereby. As used in this Agreement "COMPANY'S REQUIRED STATUTORY
APPROVALS" means such filings, authorizations, orders and approvals as may be
required under federal or foreign laws, or securities laws. The execution and
delivery by Company and ABB of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Company and ABB, including the approval of the
Board of Directors and sole shareholder of Company. This Agreement has been
duly executed and delivered by Company and ABB and constitutes a valid and
binding obligation of Company and ABB enforceable in accordance with its terms,
except that such enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, or other similar laws relating to enforcement of creditors'
rights generally and (ii) general equitable principles, including the
availability of specific performance, injunctive relief and other equitable
remedies.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Company and ABB as follows:
3.1 ORGANIZATION; STANDING AND POWER. Buyer is a corporation duly
organized, and validly existing under the laws of the state of Washington, has
all requisite power and authority to own, lease, and operate its properties and
to carry on its businesses as now being conducted, and is duly qualified and in
good standing to do business in each jurisdiction in which a failure so to
qualify would have a material adverse effect on the Business Condition of Buyer.
3.2 AUTHORITY. Buyer has, or shall have prior to the Closing, all
requisite corporate power and authority to enter into this Agreement and,
subject to the Buyer's Required Statutory Approvals, to consummate the
transactions contemplated hereby. As used in this Agreement "BUYER'S REQUIRED
STATUTORY APPROVALS" means such filings, authorizations, orders and approvals as
may be required under federal or foreign laws, or securities laws. The
execution and delivery by Buyer of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Buyer including the approval of the Board of
Directors of Buyer. This Agreement has been duly executed and delivered by
Buyer and constitutes a valid and binding obligation of Buyer enforceable in
accordance with its terms, except that such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization, or other similar laws relating to
enforcement of creditors' rights generally and (ii) general equitable
principles, including the availability of specific performance, injunctive
relief and other equitable remedies.
ARTICLE IV
INDEMNIFICATION
4.1 INDEMNIFICATION BY ABB. Subject to Sections 4.4 and 4.5, ABB shall
defend, indemnify, and hold Buyer and its employees, officers, directors, and
agents harmless from and
55
against, and reimburse Buyer with respect to, any and all direct and actual
losses, damages, liabilities, claims, judgments, settlements, fines, costs, and
expenses (including reasonable attorneys' fees) of any kind, net of any
insurance proceeds, but excluding all indirect and/or consequential damages of
any kind, e.g. loss of profit and loss of production costs connected with
interruption of operations ("LOSSES") incurred by Buyer, or Company or its
employees, officers, directors and agents by reason of or arising out of or in
connection with any breach, or any third party claim that if true, would
constitute a breach, by ABB of any representation or warranty of ABB contained
in this Agreement. ABB shall not make any claim against Company, its employees,
officers, directors and agents after the Closing Date for any breach of
representation or warranty of ABB contained in this Agreement or seek
contribution or indemnification from Company, its employees, officers, directors
and agents with respect to any such breach.
4.2 INDEMNIFICATION BY BUYER. Subject to Sections 4.4 and 4.5, Buyer
shall defend, indemnify, and hold ABB and its employees, officers, directors,
and agents harmless from and against, and reimburse ABB with respect to, any and
all Losses incurred by ABB by reason of or arising out of or in connection with
any breach, or any third party claim that if true, would constitute a breach by
Buyer of any representation or warranty of Buyer contained in this Agreement.
4.3 NOTICE. If any action, suit or proceeding shall be commenced against,
or any written claim or demand be asserted against any party claiming
indemnification under this Section 4 ("INDEMNIFIED PARTY") in respect of which
it proposes to demand indemnification hereunder, the Indemnified Party shall
promptly send written notice to the indemnifying party (the "INDEMNIFYING
PARTY") to that effect and shall consult in good faith with the Indemnifying
Party with respect thereto. Subject to the Indemnified Party's right to
participate at its own expense, the defense and settlement of any such action,
suit or proceeding shall be under the sole direction and control of the
Indemnifying Party, who shall reasonably proceed in good faith at all times;
provided that the control by the Indemnifying Party of the defense of any such
action, suit or proceeding shall not delay the timely defense thereof; and
provided, further, that the Indemnifying Party shall not consent to the entry of
any judgment or enter into any settlement which includes any term which shall
require any act or forbearance on the part of the Indemnified Party and which
does not unconditionally release the Indemnified Party from all liability in
respect of such claim, action or proceeding without the prior written consent of
the Indemnified Party, which consent shall not be unreasonably withheld.
4.4 TIME LIMIT. The provisions of this Article IV shall apply only to
Losses that are incurred or relate to asserted claims, demands, or liabilities
for which a Claim Notice is given within eighteen (18) months of the Closing
Date; after which time ABB shall have no liability whateverkind whether for
breach of any representation, warranty or covenant or other provision herein,
provided, however, that the indemnification obligations for such claims for
which a Claim Notice is given within the time period set forth above shall
continue until the final resolution of each such claim. A CLAIM NOTICE means a
written notice in reasonable detail of the facts and circumstances that form the
basis of an indemnification claim hereunder and setting
56
forth an estimated amount of the potential Losses, if possible, and the sections
of this Agreement upon which the claim for indemnification for such Losses is
based.
4.5 LIMITATIONS. Except for any Losses related to or arising from
breaches of any representations or warranties regarding accounts receivable or
taxes, ABB's covenant regarding product liability claims coverage contained in
the Amended and Restated Stock Purchase Agreement by and among Asea Xxxxx Boveri
AB, a Swedish company and Gigantissimo 2131 AB under change of name to Flow
International FPS AB, a Swedish company with respect to the issued and
outstanding stock of ABB Pressure Systems AB, a Swedish company with the
registration number 556064-1770, (the "PRESSURE SYSTEMS STOCK PURCHASE
AGREEMENT"), and any Losses with respect to any Flakt Contact Claims, as defined
in the Pressure Systems Stock Purchase Agreement, none of which shall be subject
to any Threshold Amount, the indemnified party shall be entitled to
indemnification only if the total aggregate Losses under the Transaction
Agreements exceed Two Hundred Fifteen Thousand US Dollars (US$215,000) (the
"THRESHOLD AMOUNT"). Once the Threshold Amount has been exceeded, the
indemnified party shall be entitled to indemnification for all amounts above the
Threshold Amount. Except for any Losses related to or arising from breaches of
any representations or warranties regarding accounts receivable or taxes, ABB's
covenant regarding product liability claims coverage contained in the Pressure
Systems Stock Purchase Agreement, and any Losses with respect to any Flakt
Contract Claims, none of which shall be subject to any limitation of liability,
the total aggregate amount which the indemnified parties under the Transactions
Agreements shall be entitled to be indemnified under the Transactions Agreement
will not exceed the thirty percent (30%) of the aggregate purchase price
pursuant to the Transaction Agreements. The sole remedy of Buyer and ABB for
breaches of this Agreement shall be claims made in accordance with and subject
to the limitations of this Article IV. This Agreement, the Pressure Systems
Stock Purchase Agreement and the Asset Purchase Agreement by and among an ABB
entity or entities which own the intellectual property rights used in ABB
Pressure Systems AB's business and an entity to be designated or formed by Flow
International Corporation together are the "TRANSACTION AGREEMENTS".
ARTICLE V
GENERAL PROVISIONS
5.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement survive the Closing as provided
herein.
5.2 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed sufficiently given and served for all purposes when
personally delivered or given by telex or machine-confirmed facsimile or three
business days after a writing is deposited in the United States mail, first
class postage or other charges prepaid and registered, return receipt requested,
addressed as follows (or at such other address for a party as shall be specified
by like notice):
57
(a) if to Buyer:
Flow International Corporation
23500 - 00xx Xxxxxx Xxxxx
X.X. Xxx 00000
Xxxx, XX 98032
Attention: General Counsel
Phone: (000) 000-0000
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxxxx Xxxxx & Xxxxx XXX
0000 Xxxxxxxx Center
000 Xxxxx Xxx.
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
b) if to ABB:
Asea Xxxxx Boveri AB
Xxxxxxxxxxxxxxxx 0, XX-000 00
Xxxxxxxx, Xxxxxx
Attention: General Counsel
Phone: 000 00 00 00 00 00
Fax: 000 00 00 00 00 00
WITH A COPY TO:
Xxx Xxxxxxx
Advokatfirman Sodermark
Xxxxxxxxxxx 0
Xxx 00000, XX 000 00
Xxxxxxxxx, Xxxxxx
Phone: 000 00 0 000 00 00
Fax: 000 00 0 000 00 00
AND WITH A COPY TO
Xxxxxx Xxxxxx
General Counsel
ABB Industrial Systems, Inc.
000 Xxxxxx 0
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
5.3 INTERPRETATION. This Agreement has been negotiated by the respective
parties hereto and their attorneys and the language hereof will not be construed
for or against either party.
58
5.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to each of the other parties, it being understood that
all parties need not sign the same counterpart.
5.5 MISCELLANEOUS. This Agreement and the documents referred to herein
(a) constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof; (b) are not intended to confer upon any other person any rights or
remedies hereunder; and (c) shall not be assigned by operation of law or
otherwise except as otherwise specifically provided.
5.6 TRANSACTIONAL EXPENSES. Whether or not the transactions contemplated
by this Agreement are consummated, each of Buyer, ABB and Company shall pay its
own fees and expenses incident to the negotiation, preparation, execution,
delivery and performance hereof, including, without limitation, the fees and
expenses of its counsel, accountants and other experts.
5.7 GOVERNING LAW. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of Sweden.
5.8 ARBITRATION. Any dispute, controversy or claim arising out of or
relating to this Agreement, or the breach, termination or validity thereof,
shall be finally settled under the Rules of the Arbitration Institute of the
Stockholm Chamber of Commerce presently in force by three (3) arbitrators
selected in accordance with said rules. The place of arbitration shall be
Stockholm, Sweden and the law applicable to the arbitration procedure shall be
determined by referring to the law of the place of arbitration. The English
language shall be used throughout the arbitral proceedings.
5.9 ADDITIONAL AGREEMENTS. In case at any time after the Closing Date any
further action is reasonably necessary or desirable to carry out the purposes of
this Agreement or to vest Buyer with full title to all properties, assets,
rights, approvals, immunities, and franchises, the proper officers and directors
of each party to this Agreement shall take all such necessary action.
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
59
SIGNATURE PAGE - AMENDED AND RESTATED STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, Buyer, Company, and ABB have caused this Agreement to
be executed by their respective and duly authorized officers, have duly executed
this Agreement, all as of the date first written above.
FLOW INTERNATIONAL CORPORATION ABB INDUSTRIAL SYSTEMS, INC.
By By
------------------------------------ ------------------------------
Xxxxxx Xxxxxxx, Chairman, Its
Chief Executive Officer and President ------------------------------
ABB AUTOCLAVE SYSTEMS INC.
By
------------------------------
Xxxxx Xxxxx, President
60
