Exhibit 2.2
SHARE PURCHASE AGREEMENT
THE UNDERSIGNED:
1. Xxxxxx Holding B.V., a private limited liability company organized under
the laws of The Netherlands, having its registered seat in Enschede, The
Netherlands ("Holding");
2. Thermedics Detection Inc., a company organized under the laws of the
Commonwealth of Massachusetts, having its registered seat in Chelmsford,
Massachusetts, the United States of America ("Thermedics");
3. Xx. X. Xxxxxx, residing at Enschede, The Netherlands ("Xx. Xxxxxx");
4. Reggeborgh Beheer B.V., a private limited liability company organized
under the laws of The Netherlands, having its registered seat in
Rijssen, The Netherlands ("Reggeborgh");
5. Xx. X.X.X. Xxxxx residing at Hengelo, The Netherlands ("Xx. Xxxxx");
(The individuals and the company mentioned in 3, 4 and 5 are indirect
shareholders of Holding, hereafter collectively: the "Holders").
WHEREAS:
A. Xx. Xxxxxx, Reggeborgh and Pover Holding B.V., a private limited
liability company organized under the laws of The Netherlands having its
registered seat in Enschede, The Netherlands, are the holders of the
entire issued and outstanding share capital in Pover Gemeenschappelijk
Bezit B.V., a private limited liability company organized under the laws
of The Netherlands, having its registered seat in Enschede, The
Netherlands ("Pover") and Pover is the holder of the entire issued and
outstanding share capital of Holding;
B. Holding is the holder of the entire issued and outstanding share capital
(the "Shares") in Xxxxxx & Co. B.V., a private limited liability company
organized under the laws of The Netherlands, having its registered seat
in Enschede, The Netherlands ("Xxxxxx");
X. Xxxxxx is the holder of 90% of the issued and outstanding share capital
in Xxxxxx Instrumentation S.A.R.L., a company organized under the laws
of France, having its registered seat in Bry xxx Xxxxx, Xxxxxx ("SARL")
and of 50% of the issued and outstanding share capital in Systech B.V.,
a private limited liability company organized under the laws of The
Netherlands, having its registered seat in Enschede, The Netherlands
("BV") (SARL and BV hereafter collectively: the "Group Companies" and
the shares held by Xxxxxx in the Group Companies hereafter: the "Group
Company Shares");
D. Holding desires to sell and transfer the Shares to Thermedics and
Thermedics desires to purchase and acquire the Shares from Holding
subject to the terms and conditions set forth in this Share Purchase
Agreement (the "Agreement").
HEREBY AGREE AS FOLLOWS:
ARTICLE 1 - SALE AND TRANSFER OF THE SHARES
1.1 Subject to the terms and conditions set out in this Agreement Holding
hereby sells and agrees to transfer the Shares to Thermedics and
Thermedics hereby purchases and agrees to accept transfer of the Shares
from Holding.
1.2 Holding hereby agrees to transfer the Shares to Thermedics through the
execution by the parties on the date of this Agreement of a notarial
deed of transfer in the form of Annex 1.2 hereto, which will be passed
by a civil law notary of Xxxxx Dutilh in Amsterdam, and the
acknowledgment of the transfer by Xxxxxx.
ARTICLE 2 - PURCHASE PRICE AND PAYMENT
2.1 The purchase price for the Shares shall be US$ 7,000,000 (the "Purchase
Price").
2.2 The Purchase Price shall be paid on the date of this Agreement by
Thermedics transferring an amount of US$ 7,000,000 to the bank account
of Holding with ABN Amro Bank, N.V., account number 00.00.00.000.
ARTICLE 3 - PURCHASE PRICE ADJUSTMENT
Notwithstanding Article 2 above, the Purchase Price shall be adjusted as
follows:
(i) the Purchase Price shall be increased or decreased by the amount by
which the tangible assets minus the liabilities as of the date of this
Agreement (the "Net Tangible Assets") of Xxxxxx are greater than or less
than, as the case may be the equivalent in Netherlands guilders of US$
1,115,000 on the basis of the exchange rate on the date of this
Agreement (the "Closing Date Rate") set forth in the Key Currency Cross
Rates published in the Wall Street Journal (the "Wall Street Chart").
(ii) the Purchase Price shall be decreased by the amount by which Rutter's
backlog on the date of this Agreement is less than the equivalent in
Netherlands guilders of US$ 1,125,000, on the basis of the average
exchange rate between the exchange rate on the date of this Agreement
and the exchange rate on 30 September 1995 (the "Average Rate"), set
forth in the Wallstreet Chart, provided that the adjustment made
pursuant to this Article 3(ii) shall be no greater in the aggregate than
the equivalent in Netherlands guilders of US$
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500,000 on the basis of the Closing Date Rate (the "Backlog
Adjustment"). Sales to affiliates shall be disregarded in calculating
backlog for purposes of this Article 3(ii). Affiliates are deemed to be
any person or entity controlling, controlled by or under common control
with Xxxxxx.
ARTICLE 4 - ESTABLISHMENT OF THE NET TANGIBLE ASSET ADJUSTMENT
4.1 For the purpose of establishing the Net Tangible Assets, Thermedics and
its accountants shall prepare a statement of the tangible assets minus
the liabilities (= assets (excluding intangible assets) minus the
liabilities (including provisions)) (the "Net Tangible Assets") of
Xxxxxx as at the date hereof (the "Net Asset Statement") in accordance
with the requirements of all relevant laws and accounting principles
generally accepted in The Netherlands with respect to the preparation of
the annual accounts and applied on a basis consistent with Rutter's
December 31, 1994 and September 30, 1995 balance sheets, and submit such
draft to Holding no later than on 15 March 1996 in order for Holding,
assisted by its accountants Deloitte & Touche ("D&T") to review and to
submit its objections, if any, against such draft to Thermedics within
40 days after the draft has been received by Holding (the "Receipt
Date"). If Holding does not object to the draft Net Asset Statement by
the date which is 40 days after the Receipt Date, then the draft Net
Asset Statement shall be the final Net Asset Statement.
4.2 Should Holding and Thermedics fail to reach agreement on any objection
raised by Holding within 60 days after the Receipt Date (the "Objection
Date"), then the Net Asset Statement shall be determined by an
internationally recognized accounting firm, which shall not be D&T or
Thermedic's accountants (the "Accountants"), chosen by the mutual
agreement of Holding and Thermedics.
4.3 If Holding and Thermedics fail to agree on the appointment of the
Accountants within 30 days after the Objection Date, then Holding and
Thermedics - and if one of the parties fails to cooperate, the other
party on behalf of both parties - shall request the Chairman of the
Netherlands Institute of Registered Accountants ("NIVRA") to appoint
such Accountants.
4.4 Holding and Thermedics shall within 14 days after the appointment of the
Accountants submit the Net Asset Statement as well as statements of
their respective positions in writing to the Accountants (the
"Submission Date").
4.5 Holding and Thermedics undertake to procure that the Accountants shall
notify Holding and Thermedics of their decision as promptly as possible
and in any event no later than 60 days after the Submission Date.
4.6 The fees and expenses arising out of the engagement of the Accountants
shall be borne equally by Holding and Thermedics.
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ARTICLE 5 - ESTABLISHMENT OF THE BACKLOG ADJUSTMENT
Should Holding and Thermedics fail to reach agreement on the amounts
referred to in Article 3 (ii) within 30 days after the date of this Agreement,
then the Backlog Adjustment shall be determined by the Accountants in
accordance with Article 4.2 through 4.6 of this Agreement.
ARTICLE 6 - PAYMENT OF THE ADJUSTMENTS
6.1 Within two days after the Net Asset Statement has been established in
accordance with Article 4 of this Agreement,
(a) in the event the Net Tangible Assets are less than the equivalent
in Netherlands guilders of US$ 1,115,000 on the basis of the
Closing Date Rate, Holding, or the Holders pro rata, shall pay to
Thermedics an amount in Netherlands guilders equal to the
difference between (i) the equivalent in Netherlands guilders of
US$ 1,115,000 on the basis of the Closing Date Rate and (ii) the
Net Tangible Assets as shown on the Net Asset Statement to the bank
account of Thermedics with [ ] bank, account number [ ]; or
(b) in the event the Net Tangible Assets are greater than the
equivalent in Netherlands guilders of US$ 1,115,000 on the basis of
the Closing Date Rate, Thermedics shall pay to Holding an amount in
Netherlands guilders equal to the difference between (i) the Net
Tangible Assets as shown on the Net Asset Statement and (ii) the
equivalent in Netherlands guilders of US$1,115,000 on the basis of
the Closing Date Rate to the bank account of Holding as mentioned
in Article 2.2 of this Agreement.
6.2 Within two days after the Backlog Adjustment has been established in
accordance with Article 5 of this Agreement, Holding or the Holders shall
pay to Thermedics the Backlog Adjustment.
ARTICLE 7 - HOLDING AND HOLDERS' REPRESENTATIONS AND WARRANTIES
Holding and the Holders represent and warrant to Thermedics that each of the
matters set forth in Article 7.1 through 7.70 hereof ("Holding and Holders'
Representations and Warranties") are true and correct on the date of this
Agreement.
AUTHORITY
7.1 Holding and the Holders have all requisite power and authority to
execute this Agreement and to consummate the transactions contemplated
hereby.
CORPORATE STANDING
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7.2 Xxxxxx is duly organized and validly existing under the laws of the
Netherlands. The most recent articles of association of Xxxxxx are
attached as Annex 7.2 hereto. There have been to date no resolutions to
amend such articles of association nor are presently any such
resolutions in the course of preparation. No petition for bankruptcy in
respect of Xxxxxx has been filed and Xxxxxx has not been declared
bankrupt, nor has it filed for or been granted suspension of payment.
Xxxxxx has not been dissolved and no resolution to dissolve Xxxxxx has
been adopted and there is no action or request pending to accomplish
such dissolution.
7.3 Xxxxxx does not hold shares or other equity interest in any other
business entity other than the Group Companies. Xxxxxx has no branches
nor has it owned any branches over the last three years.
7.4 The Group Companies are duly organized and validly existing under the
laws of the countries in which they are incorporated. The most recent
articles of association of each of the Group Companies are attached as
Annex 7.4 hereto. There have been to date no resolutions to amend such
articles of association nor are presently any such resolutions in the
course of preparation. No petition for bankruptcy in respect of any of
the Group Companies has been filed and none of the Group Companies has
been declared bankrupt, nor has any of the Group Companies filed for or
been granted suspension of payment. None of the Group Companies has been
dissolved and no resolution to dissolve any of the Group Companies has
been adopted and there is no action or request pending to accomplish
such dissolution.
MANAGING DIRECTORS; POWERS OF ATTORNEY
7.5 The extract from the trade register with respect to Xxxxxx dated 9
January 1996, attached hereto as Annex 7.5 is correct as of the date
hereof and the information contained therein has not been modified by
any later filing. Xxxxxx has no managing directors ("statutair
directeuren"), supervisory directors ("commissarissen") or proxyholders
("gevolmachtigden") other than the persons named in the extract from the
trade register.
7.6 The Group Companies have no managing directors, supervisory directors,
or proxyholders other than the persons named in Annex 7.6 hereto.
7.7 The representations and warranties contained in this Article 7 apply
mutatis mutandis to the Group Companies and to the Group Company Shares
insofar as not already explicitly provided for herein.
SHARES
7.8 Holding has full right and title to the Shares. Apart from the
obligations resulting from this Agreement there are no obligations with
respect to any of the Shares.
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7.9 The authorized share capital of Xxxxxx consists of 500 shares, with a
nominal value of NLG 1,000 each, numbered 1 through 500 of which 451
shares have been validly issued and fully paid up and are free from
pledges, attachments, rights of usufruct and any other charges, except
for the pre-emptive rights and blocking arrangements contained in the
articles of association of Xxxxxx and except as mentioned in Annex 7.9
hereto.
7.10 There are no share certificates in respect of the Shares and no
depository receipts for shares have been issued in respect of Xxxxxx
except as mentioned in Annex 7.10 hereto. Holding is entitled without
any restriction to sell and transfer the Shares.
7.11 Xxxxxx is not under any obligation to issue any further shares in its
capital and no resolution to that effect has been passed. No option or
other right (contingent or otherwise) to purchase or acquire any shares
in Xxxxxx has been resolved upon or granted, except as mentioned in
Annex 7.11 hereto.
7.12 There are no shareholder or voting agreements pertaining to shares in
Xxxxxx, except as mentioned in Annex 7.12 hereto.
7.13 The shareholder's register of Xxxxxx, a copy of which is attached as
Annex 7.13 hereto, correctly and completely reflects the current and
former shareholders of Xxxxxx and all particulars required to be
contained by such register.
7.14 Since 30 September 1995 no (interim) dividend or other distribution has
been declared on the Shares save as disclosed in Annex 7.14.
GROUP COMPANY SHARES
7.15 The authorized and issued share capital of each of the Group Companies
consists of the number of shares set forth in Annex 7.15 hereto. Xxxxxx
has completed the transfer of the shares in Xxxxxx Eicholzer A.G., a
company organized under the laws of Switzerland ("AG"), having its
registered seat in Zug, Switzerland and in Xxxxxx and Co. GbmH, a
company organized under the laws of Germany, having its registered seat
in Ahaus, Germany ("GmbH") on terms and conditions approved in advance
by Thermedics and Xxxxxx will not have any liability or obligation
relating to the businesses of AG or GmbH or the transfer of the shares
of such companies.
7.16 The shareholder's register of each of the Group Companies, copies of
which are attached as Annex 7.16 hereto, correctly and completely
reflects the current and former shareholders of each of the Group
Companies and all particulars required to be contained by such register.
ANNUAL ACCOUNTS
7.17 The (i) balance sheet of Xxxxxx as at 31 December 1994 and its profit
and loss account for the financial year then ended together with the
explanatory notes thereto and the (ii)
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balance sheet of Xxxxxx as at 30 September 1995 (the "September Balance
Sheet") ((i) and (ii) collectively: "the Accounts") and the annual
report ("jaarverslag") have all been attached as Annex 7.17 to this
Agreement.
7.18 The Accounts have been prepared in accordance with the relevant legal
requirements and the requirements of the generally accepted principles
of accounting in The Netherlands. The reporting methods applied in
drawing up the Accounts were consistent with the reporting methods
applied during the three consecutive years ending immediately before
1994.
7.19 The Accounts are complete, true and correct in all respects and fairly
present the financial condition and the composition and magnitude of the
assets and liabilities and the operations and results of Xxxxxx in the
relevant year.
7.20 The Accounts fully disclose and make full and adequate provisions for
all actual and contingent liabilities of Xxxxxx as of each of the
relevant dates and Xxxxxx had no liabilities on any such date other than
the ones so disclosed in Annex 7.20 hereto, which relate only to the
legal proceedings in respect of IP&T/ASAM as disclosed in Annex 7.54
hereto and provided for in Article 9.3 of this Agreement.
7.21 Since 30 September 1995 and save as disclosed in Annex 7.21,
(i) there have been no changes in the conditions, financial or
otherwise, of Xxxxxx or any of the Group Companies, which have
adversely affected or may affect their net asset value, backlog
or in general their business, properties or financial condition;
(ii) no shareholders' resolutions relating to Xxxxxx have been passed
either during or outside any general meeting of shareholders,
including, without limitation, resolutions regarding the
distribution of dividends.
(iii) neither Xxxxxx nor any of the Group Companies have entered into
any agreement or assumed any obligations or liabilities or taken
or initiated any action or passed any resolution relating to
their assets, their business, other than in the ordinary course
of business.
PERSONAL PROPERTY AND INVENTORY
7.22 Xxxxxx has good and marketable title to all personal property reflected
in the Accounts or acquired since 30 September 1995 (the "Personal
Property") save for properties sold or otherwise disposed of in the
ordinary course of business.
7.23 The Personal Property is not subject to any attachments or charged with
any pledges, leases or any other encumbrances of any nature whatsoever
and no item of the Personal Property is subject to any retention of
title.
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7.24 The Personal Property comprises all property required to enable Xxxxxx
to conduct its business as it is currently conducted and is in a good
state of maintenance and repair, taking into consideration normal wear
and tear.
7.25 The inventories ("voorraden") reflected in the September Balance Sheet
were acquired or produced or shall be acquired or produced in the
ordinary course of business of Xxxxxx and are or will be of a good
quality usable and saleable in the normal course of business, not to
exceed one year, of Xxxxxx and their quantity is adequate for the level
at which the business of Xxxxxx is currently run. The inventories
reflected on the September Balance Sheet are valued at the lower of cost
or market.
REAL PROPERTY
7.26 Xxxxxx does not own real property.
7.27 The real property set forth in Annex 7.27 hereto (the "Leasehold
Property") has been leased by Xxxxxx as lessee on the terms and
conditions stated in such Annex.
7.28 No other agreements pertaining to the Leasehold Property have been
concluded, other than those which appear from the lease agreements
referred to in 7.27 above.
7.29 All obligations towards the lessor arising from the lease agreement
referred to in 7.27 above have been complied with; there are no rent or
other disputes pending or threatened with respect to such lease
agreements.
7.30 The Leasehold Property has not been leased to anyone other than Xxxxxx
and no other right or use or enjoyment of the Leasehold Property has
been granted or promised to any person or entity other than Xxxxxx.
7.31 To the extent that any of the Leasehold Property has been leased with
the value added tax, such tax has been applied in the manner prescribed
by law and within the statutory periods.
7.32 Xxxxxx has no real property in ground lease ("erfpacht"). The Leasehold
Property is not subject to any registered easements
("erfdienstbaarheden").
7.33 No property rights as contemplated in the "Belemmeringenwet
Privaatrecht" have been vested on the Leasehold Property.
7.34 Neither public nor private law prohibits or restricts the present use
of the Leasehold Property.
7.35 The Leasehold Property is in a good state of maintenance and repair and
is in accordance with all terms of the relevant lease agreements, taking
into consideration normal wear and tear.
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TAXES AND SOCIAL SECURITY CONTRIBUTIONS
7.36 Except as disclosed in Annex 7.36 hereto, Xxxxxx has timely and
correctly filed all tax and social security contributions returns which
it was required to file (including but not limited to those relating to
corporation tax, VAT, wage withholding tax ("loonbelasting"), social
security contributions, national, provincial and local taxes) in any
jurisdiction, and has timely and correctly paid and withheld all the
taxes including but not limited to corporation tax, VAT wage withholding
tax, social security contributions, national, provincial and local taxes
which have become due or have been assessed.
7.37 Holding and Xxxxxx have completed and will with respect to the period up
to and including the date of this Agreement complete all required tax
returns and social security filings timely and correctly. There is no
dispute pending or, to the knowledge of Holding, threatened, for unpaid
taxes or social security contributions.
7.38 Except as disclosed in Annex 7.38 hereto Xxxxxx has no outstanding
liabilities for taxes or social security contributions, including but
not limited to wage withholding tax or social security liabilities
relating to Xx. Xxxxxx'x Consulting Arrangement (defined below) for any
period ending on or prior to the date hereof.
7.39 Holding has no claim against Xxxxxx relating to the set off of
corporation tax except as disclosed in Annex 7.39 hereto.
PRODUCT LIABILITY
7.40 There will be no product liability claims with regard to products
manufactured, or sold by Xxxxxx prior to the date of this Agreement
which are not fully covered by insurance carried by Xxxxxx that will
continue to be in effect after the date of this Agreement.
TRADE NAMES
7.41 A true list of all the trade names which Xxxxxx uses or has the right
to use is attached hereto as Annex 7.41.
INDUSTRIAL PROPERTY RIGHTS
7.42 Particulars of all registered patents, trade marks, registered designs
or licenses thereof (the "Industrial Property Rights"), owned or used by
Xxxxxx are summarized in Annex 7.42 hereto.
7.43 There are no Industrial Property Rights or any inventions, copyrights,
technical know-how or trade secrets ("Intangibles") used by Xxxxxx which
are not owned by it or the use of which by it are in any way restricted
by the rights of a third party in respect thereof, except as mentioned
in Annex 7.43 hereto. Xxxxxx does not infringe and has not infringed the
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Industrial Property Rights or Intangibles of any other party. Xxxxxx is
not liable for the payment of any royalty or compensation in any form in
connection with Industrial Property Rights or Intangibles of any third
party.
7.44 No license or other right in respect of any Industrial Property Rights
or Intangibles has been granted or agreed to be granted to any third
party, except as mentioned in Annex 7.44 hereto.
LEGALITY OF THE OPERATIONS OF THE BUSINESS OF XXXXXX
7.45 Except as disclosed in Annex 7.45 hereto, the conduct of the business of
Xxxxxx does not violate and has not violated any provisions of any
applicable laws, regulations or orders of any governmental
administrative body or authority having jurisdiction thereof. Xxxxxx has
complied with all laws, regulations and orders in respect of employment
and employment practices and particularly in respect of work place
protection, hygiene, health and safety protection.
7.46 Xxxxxx has complied with all applicable laws, regulations and orders in
respect of environmental matters and pollution of the environment
(including air, soil and water) and the property used by Xxxxxx, its
surroundings and its environment is not polluted with any concentration
of material which may be considered hazardous or damaging for the public
health or the environment and which may result in any obligation or
liability on the part of Xxxxxx. Xxxxxx will have no liability with
respect to any environmental conditions existing on or prior to the date
hereof at any facility owned or operated by Xxxxxx prior to the date
hereof or otherwise as a result of the conduct of the business of Xxxxxx
prior to the date hereof.
7.47 Xxxxxx has at its disposal all licenses or permits which are necessary
for carrying out and continuing its operation and business. Those
licenses and permits are in full force and are not subject to any
conditions other than the conditions provided for by these licenses and
permits themselves, which conditions are not unreasonably burdensome for
Xxxxxx.
7.48 Said licenses and permits have neither been returned, revoked nor
restricted, nor is any return, revocation or restriction impending or
reasonably anticipated.
7.49 The operations and the business of Xxxxxx is carried out in a manner
which is consistent with said licenses and permits and neither the
zoning plan in force for the area where Xxxxxx is located nor any
licence nor any other regulation will restrict Xxxxxx in the use of its
buildings, structures, installation or other real properties. No
governmental authority has alleged that Xxxxxx is in violation of any
applicable law, rule, regulation, license, permit or other legal
requirement.
Contracts
7.50 Annex 7.50 hereto contains in respect of Xxxxxx a true and complete list
of any and all agreements and commitments of, or for the benefit of,
Xxxxxx, of the following nature: (i)
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agreements important to the business of Xxxxxx without regard to
monetary amounts, (ii) agreements which based on current economic
circumstances will result in a loss when performed, (iii) agreements or
arrangements that may be terminated by another party as a result of any
change of direct or indirect control of Xxxxxx or pursuant to which
payment or fulfilment of any obligation can be accelerated (iv) long
term agreements which cannot be terminated without penalty within three
months following the date of this Agreement (v) agreements (other than
employment agreements and trading contracts) with a value or entailing a
monetary obligation in excess of NLG 50,000.--(vi) distributorship-,
agency- and exclusive sales agreements and requirements contracts (vii)
hire purchase-, rental, and lease agreements (other than with respect to
real property), (viii) joint venture or partnership arrangement, (ix)
all written or oral agreements with customers and (x) all agreements
relating to the acquisition or sale of assets or shares other than in
the ordinary course of business during the past five years.
(collectively: the "Contracts")
7.51 Each of the Contracts is a valid and binding agreement in accordance
with its terms and Xxxxxx has fulfilled all obligations required by such
Contracts to have been performed by it, except as mentioned in Annex
7.51 hereto.
7.52 There has not occurred any default under any of the Contracts on the
part of Xxxxxx or on the part of any other party thereto nor has any
event occurred which with the giving of notice or the lapse of time, or
both, would constitute any default on the part of Xxxxxx under any of
the Contracts, nor has any event occurred which with the giving of
notice or the lapse of time, or both, would constitute any default on
the part of any other party to any of the Contracts nor has any party to
any of the Contracts cancelled or threatened to cancel any Contract,
except as mentioned in Annex 7.52 hereto.
7.53 No consent of any party to any of the Contracts is required for the
execution or performance of this Agreement or the consummation of the
transactions contemplated hereby or the continued performance by any
party of its obligations under any Contract after the date of this
Agreement and Xxxxxx is not restricted by any Contract from carrying on
its business, except as mentioned in Annex 7.53 hereto.
LITIGATION
7.54 Xxxxxx is not engaged in any legal or administrative action and there
are no proceedings or investigations pending or threatened against or
affecting Xxxxxx or its business or its assets, nor is there any basis
for such legal or administrative action, proceedings or investigation,
other than listed in Annex 7.54 hereto.
INSURANCE
7.55 A listing of all insurance policies of which Xxxxxx is owner, insured or
beneficiary together with a summary of the risks insured, the amounts of
coverage, the premium rate, the cash value and the expiry date thereof,
has been attached hereto as Annex 7.55(a) (the "Policies"). All premiums
due and payable by Xxxxxx with respect to the Policies have been
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paid in full, except as mentioned in Annex 7.55(b) hereto. Xxxxxx has
not done or failed to do anything, which might invalidate or prejudice
recovery under the Policies or which might influence finding similar
insurances for Xxxxxx under other policies after the date of this
Agreement. Any and all facts and circumstances, known to Holding and/or
Xxxxxx, which may give rise to a claim under the Policies and which
should be notified to the insurers in order to secure insurance
coverage, have been so notified. There are no outstanding material
requirements or material recommendations by any insurer or governmental
authority exercising similar functions which requires or recommends any
changes in the conduct of the business of, or any material repairs or
other work to be done on or with respect to any of the properties or
assets of, or redesigns, retrofits or other changes in products
manufactured or sold by Xxxxxx. Xxxxxx has not received any notice or
other communication from any insurer cancelling or materially amending
any of the Policies and no cancellation or amendment is threatened,
except as mentioned.
EMPLOYEES AND PENSIONS
7.56 Xxxxxx has no employees or consultants other than those listed in Annex
7.56 hereto (collectively: the "Employees"), which list includes part-
time employees. Annex 7.56 lists, with respect to all Employees, their
date of birth, date entry into service, current salary and benefits.
Apart from the Employees and the managing directors no person can claim
to have a (full-time or part-time) employment agreement with Xxxxxx. The
supplemental agreement between Xx. Xxxxxx and Xx. Xxxxx acting on behalf
of Pover and Holding and Xxxxxx dated 1 November 1991 and any other
agreements between Xx. Xxxxxx and Xxxxxx ("Xx. Xxxxxx'x Consulting
Arrangement") have been terminated and fully satisfied by Holding and/or
Xxxxxx.
7.57 Annex 7.57 hereto contains the complete text of the collective labour
agreement(s) applicable to the Employees and of all other existing
agreements concluded with labour unions, employer associations or works
councils.
7.58 Xxxxxx has no obligation, whether legally or established by custom to
pay to any of its current, retired or other former employees, managing
directors or supervisory directors any salary, fringe benefit or premium
except as described in Annex 7.58 hereto.
7.59 Xxxxxx has no obligations arising from the termination or cancellation
of any of its employment agreements and Xxxxxx has no obligations under
any agreements with any of its employees providing for severance
payments.
7.60 There is no bonus, profit sharing, incentive, saving, severance pay,
(early) retirement (other than contained in any collective labour
agreement), insurance (group or single), stock option, stock purchase
plan or any other employee benefit plan or arrangement in effect with or
in prospect for the Employees and/or others.
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7.61 There are no arrears and during the past five years there have been no
arrears with respect to the payment of salaries or fringe benefits or
other financial obligations to the Employees or to the supervisory
directors.
PENSION SCHEMES AND EARLY RETIREMENT SCHEMES
7.62 Any and all pension and early retirement schemes for the benefit of the
Employees and the managing directors of Xxxxxx (the "Schemes") have been
summarized in Annex 7.62(a) hereto. All contributions that are due and
payable by Xxxxxx under the Schemes and all contributions due and
payable by the participants thereof have been duly made. Except for the
obligations resulting from the Schemes, which have always timely been
satisfied, there exists no obligation Xxxxxx in respect of any of its
former or present employees regarding any pension or other retirement
plan, except as mentioned in Annex 7.62(b) hereto. No additional funding
of the Schemes shall be required to satisfy the obligations of Xxxxxx
under the Schemes to any past or present employee with respect to any
period of employment up to the date of this Agreement, except as
mentioned in Annex 7.62(c) hereto.
GUARANTEES AND BANK ACCOUNTS
7.63 Xxxxxx has not agreed to act as a surety for or issued any guarantees or
indemnities in favour of third parties, or provided (or agreed to
provide) security in favour of third parties other than listed in Annex
7.63 hereto.
7.64 Annex 7.64 (a) hereto lists all loan agreements by Xxxxxx and its
banking and overdraft facilities. No third party has given any guarantee
or security in respect of any loan, banking or overdraft facility
granted to Xxxxxx. Attached as Annex 7.64 (b) is a written confirmation
from ABN Amro Bank N.V. (the "Bank") stating that on the date of this
Agreement Xxxxxx has no credit facility outstanding with the Bank.
ABSENCE OF CHANGES AND EVENTS
7.65 Since the date of the September Balance Sheet and save as disclosed in
Annex 7.65 hereto there have been no changes in the condition, financial
or otherwise, of Xxxxxx, which have adversely affected or may adversely
affect in a material way its net assets value or in general its
business, properties or financial condition.
CONFLICTING OBLIGATIONS
7.66 Neither Holding nor Xxxxxx is a party to, subject to or bound by any
law, agreement or judgement or decree of any court or other governmental
body which would prevent or would be violated by the execution of this
Agreement, the consummation of the transactions contemplated hereunder.
CUSTOMERS AND SUPPLIERS
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7.67 Except as set forth in Annex 7.67(a) hereto, no purchase orders or
commitments of Xxxxxx, which orders or commitments are material,
individually or in the aggregate, are materially in excess of normal
requirements for Xxxxxx, nor are prices provided therein materially in
excess of current market prices for the products or services to be
provided thereunder. No material supplier of Xxxxxx has indicated within
the past year that it will stop, or materially decrease the rate of,
supplying materials, products, or services to Xxxxxx and no material
customer of Xxxxxx has indicated within the past year that it will stop,
or materially decrease the rate of, buying material, products or
services from Xxxxxx. A list of (a) each customer that accounted for
more than 5% of the revenues of Xxxxxx during the last fiscal year and
(b) each supplier that is the sole supplier of any significant product
or component to Xxxxxx is set forth in Annex 7.67(b) attached hereto.
RECALLS
7.68 No products of Xxxxxx have been recalled since January 1, 1993 and, to
the knowledge of Holding or the Holders, there is no basis for any such
recall.
PRODUCTS AND SERVICE WARRANTIES
7.69 Attached hereto as Annex 7.69 are copies of the current standard
warranty used for each of the products and services of Xxxxxx. Xxxxxx
has not made any other product or service warranties that deviate from
the current standard warranties and which remain in effect on the date
hereof, or pursuant to which Xxxxxx has any remaining obligations.
OTHER INFORMATION
7.70 The information concerning Xxxxxx set forth in this Agreement, its
Annexes and any documents, letters or other written statements furnished
to Thermedics or to be furnished to Thermedics pursuant to this
Agreement, do not contain any untrue statement of a material fact or
omit to state a material fact required to be stated herein or therein or
necessary to make the statements contained herein or therein, in light
of the circumstances in which they are made, not false or misleading.
Copies of all documents heretofore or hereafter made available to
Thermedics pursuant hereto were or will be in all material respects
complete and accurate copies of such documents and fully and fairly
present the businesses, operations, assets, liabilities and prospects of
Xxxxxx.
ARTICLE 8 - THERMEDICS' REPRESENTATIONS AND WARRANTIES
Thermedics represents and warrants to Holding that the matters set forth in
this Article 8 ("Thermedics' Representations and Warranties") are true and
correct on the date hereof. Thermedics is duly organized and validly existing
under the laws of the Commonwealth of Massachusetts, the United States of
America, and has all requisite power and authority to execute this Agreement
and to consummate the transactions contemplated hereby.
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ARTICLE 9 - INDEMNIFICATION
9.1 Each of Holding and the Holders shall compensate Thermedics for and
indemnify and hold Thermedics harmless against all losses, costs
(including legal and other professional fees), damages, liabilities or
expenses (collectively the "Damages") incurred as a result of or
relating to any of Holding and Holders' Representations and Warranties
not being as represented or warranted or being misleading and/or
resulting from or relating to the non-fulfilment of Holding's other
respective agreements or obligations contained herein.
9.2 Each of Holding and the Holders shall compensate Thermedics for and
indemnify and hold Thermedics harmless against the Damages incurred as a
result of or relating to Rutter's former shareholding in Unitron Systems
Terneuzen B.V. ("Unitron") and the transfer of the shares in Unitron by
Xxxxxx to Holding by way of a dividend distribution.
9.3 Each of Holding and the Holders shall compensate Thermedics for and
indemnify and hold Thermedics harmless against the Damages incurred as a
result of or relating to the litigation in respect of IP&T/ASAM, as
disclosed in Annex 7.54 hereto.
9.4 Each of Holding and the Holders shall compensate Thermedics for and
indemnify and hold Thermedics harmless against the Damages incurred as a
result of or relating to Xxxxxx`s Consulting Arrangement.
9.5 The indemnification obligations of each Holder shall be pro rata based
on such Holder's ownership of Holding on the date of this Agreement. To
the extent that Holding fully compensates Thermedics under Article 9
with respect to any Damages, Holders shall be released of their
obligations to Thermedics with respect to such Damages. The right to
claim damages under Article 9 is without prejudice to any other remedy
Thermedics may have under Dutch law.
9.6 Thermedics shall compensate Holding for and indemnify and hold Holding
harmless against the Damages incurred as a result of or relating to
Thermedics' Representations and Warranties not being as represented or
warranted or being misleading and/or resulting from or relating to the
non-fulfilment of Thermedics' other respective agreements or obligations
contained herein.
ARTICLE 10 - SURVIVAL OF REPRESENTATIONS AND WARRANTIES
10.1 The obligations of Holding and the Holders to indemnify Thermedics for
breaches of Holding and Holders' Representations and Warranties will
survive for a period of two years after the date of this Agreement
except that
(a) the obligations of Holding and the Holders to indemnify
Thermedics for breaches by Holding and the Holders of their
representations and warranties contained in
15
Articles 7.45 and 7.46 will survive for a period of four years
after the date of this Agreement;
(b) the obligations of Holding and the Holders to indemnify
Thermedics for breaches by Holding and the Holders of their
representations and warranties contained in the Articles 7.36,
7.37, 7.38 and 7.39 will survive for a period of five years
after the date of this Agreement; and
(c) the obligations of Holding and the Holders to indemnify
Thermedics for breaches by Holding and the Holders of their
representations and warranties contained in the Articles 7.1,
7.2, 7.3, 7.4, 7.8. 7.9, 7.13, 7.15, 7.16 and 7.66 will survive
indefinitely.
10.2 The obligations of Thermedics to indemnify Holding for breaches of
Thermedics' Representations and Warranties will survive indefinitely.
ARTICLE 11 - LIMITATIONS
Notwithstanding Article 10.1, neither Holding nor the Holders shall have any
obligation to indemnify Thermedics:
(1) for the breach of any representation or warranty if such breach results
in a claim by Thermedics for less than US$ 5,000;
(2) for the breach of any representation or warranty unless and until the
aggregate of all Damages suffered by Thermedics as a result of Holding's
and the Holders' breaches of representations or warranties (including
claims under US$ 5,000) exceeds US$ 50,000;
provided that none of the limitations on liability described in the
preceding clauses (1) and (2) shall exist with respect to any breach of
representations and warranties contained in Articles 7.1, 7.2, 7.3, 7.4, 7.8.
7.9, 7.13, 7.15, 7.16, and 7.66;
(3) for an amount in excess of the Purchase Price;
but if and when Thermedics incurs Damages of US$ 50,000 or more as a result
of Holding's and the Holders' breaches of the representations and warranties,
Holding and the Holders shall indemnify Thermedics for all such Damages,
including the first US$ 50,000 of Damages.
ARTICLE 12 - EFFECTS OF TAXES, INSURANCES AND PROVISIONS
12.1 In determining whether any of the limitations set forth in Article 11
have been exceeded and, if so, in determining the amount of the Damages,
the Damages shall be reduced:
16
(i) by the positive effect, if any, of
(a) insurance recoveries, provided that such recoveries have been
received in connection with the same fact or facts which give
rise to the indemnification for the Damages; and
(b) tax refunds or reductions to the extent that such refunds or
reductions relate to taxes payable or paid with respect to the
taxable year in which the Damages occurred or any year prior
thereto, provided that such tax refunds or reductions are caused
by the same fact or facts which give rise to the indemnification
for the Damages; and
(ii) to the extent that a specifically designated provision has been
established in the September Balance Sheet with respect to the matter
for which indemnification for Damages is sought.
12.2 If a claim or potential claim of Thermedics for Damages is based upon or
related to any action, claim or proceeding by a third party (for the
purpose of this article 11.2 the third party shall be deemed to include
tax authorities and the authorities charged with the execution of the
social security legislation) (a "Third Party Claim") Thermedics shall
notify Holding in writing within [14 days] after having become aware of
such Third Party Claim. Within [14 days] from the date of notification
of the Third Party Claim, the parties shall mutually agree upon the
course of action to be taken and the assumption of the defense by
Holding of such action or proceeding, including the employment of
counsel reasonably satisfactory to both parties. Holding shall pay the
fees and disbursements of such counsel.
ARTICLE 13 - BANK GUARANTEE
13.1 Holding and the Holders hereby deliver a bank guarantee for an amount of
twenty per cent (20%) of the Purchase Price for a duration of two years
from the date of this Agreement and for an amount of ten per cent (10%)
of the Purchase Price for a duration of the third and the fourth year
after the date of this Agreement, issued by a first class Dutch
commercial bank, attached hereto as Annex 13.1 (the "Bank Guarantee").
13.2 The Bank Guarantee shall serve as a security for Thermedics for the
payment by Holding and the Holders of any adjustment to the Purchase
Price due to Thermedics pursuant to Article 3 hereof and for any
indemnification payable by Holding and the Holders pursuant to Article
9.1 hereof, it being understood that the amount of the Bank Guarantee
shall not in any way limit Holding's and Holders' liability under such
Articles.
ARTICLE 14 - CONSULTING AGREEMENT
Xx. Xxxxxx shall enter into a new consulting agreement effective as from the
date of this Agreement, attached as Annex 14 hereto.
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ARTICLE 15 - CONFIDENTIALITY
Holding and each of the Holders undertake not to at any time subsequent to
this Agreement divulge or communicate to any company, person or entity (other
than to Thermedics and Xxxxxx) as the case may be, or to any of their officers
or employees who need to acquire such knowledge in the performance of their
duties or as directed or approved by Thermedics in writing, any confidential
information or information of an apparently confidential nature concerning the
business, affairs, accounts, transactions, customers, suppliers or business
relations of Xxxxxx ("Confidential Information"). Subsequent to the date of
this Agreement, none of Holding or the Holders shall disclose any Confidential
Information or use any Confidential Information for any purpose whatsoever.
ARTICLE 16 - ANNEXES
The Annexes to this Agreement form an integral part hereof. Any reference to
this Agreement includes a reference to the said Annexes.
ARTICLE 17 - EXPENSES
Except as provided herein, each party shall bear its own expenses and
Holding shall bear Rutter's expenses incurred in connection with the
preparation of this Agreement and the transaction contemplated thereby,
including taxes and legal, accounting and other fees.
ARTICLE 18 - NOTICES
Any notice or communication required to be delivered to either party
pursuant to or in connection with this Agreement shall be given by registered
mail with copy per telefax to the addressees set forth below:
To:
Xxxxxx Holding B.V.
Postbus 40111
7504 RC ENSCHEDE
fax: 000-0000000
Thermedics Detection, Inc.
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
X.X.X.
fax: 00-0-000-000-0000
18
Xx. X. Xxxxxx
De Braakweg 131
7524 PG ENSCHEDE
fax: 000-000000
Reggeborgh Beheer X.X.
Xxxxxxx 000
0000 XX XXXXXXX
fax: 0000-000000
Xx. X.X.X. Xxxxx
Xxxx van Xxxxxxxxxxxx 00
0000 XX XXXXXXX
fax: 000-000000
or to such other address or representative as either party may designate by
means of a written notice to be sent to the other from time to time.
ARTICLE 19 - GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by the laws of The Netherlands and any
disputes arising in connection with this Agreement or further agreements
resulting therefrom shall be submitted to the District Court in Amsterdam.
ARTICLE 20 - FURTHER ASSURANCES
The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such documents, and (c)
to do such other acts and things, all as the other party may reasonably request
for the purpose of carrying out the intent of this Agreement and the documents
referred to in this Agreement.
ARTICLE 21 - NON-COMPETITION
21.1 For a period of five years after the date of this Agreement, neither
Holding or the Holders shall, either directly or indirectly as a
stockholder, investor, partner, director, officer, employee, consultant
or otherwise, engage in a Competitive Business in any territory,
provided however, that Reggeborgh is allowed to invest in a Competitive
Business, provided that Reggeborgh shall not enter into any agreement
with Xx. Xxxxxx or Xx. Xxxxx in any Competitive Business. For purposes
of this Agreement, a "Competitive Business" means any activity in which
Xxxxxx is engaged at the date of this Agreement or at any date five
years prior to this Agreement. It is understood that Xx. Xxxxxx and Xx.
X.X.X. Xxxxx
19
will remain shareholders of Unitron and that Xx. Xxxxxx will remain
shareholder of Maderlake;
21.2 Holding and the Holders agree that the duration and geographic scope of
the non-competition provisions set forth in this Article 21 are
reasonable. In the event that any court determines that the duration or
the geographic scope, or both, are unreasonable and that such provision
is to that extent unenforceable, the parties agree that the provision
shall remain in full force and effect for the greatest time period and
in the greatest area that would not render it unenforceable. The parties
intend that this non-competition provision shall be deemed to be a
series of separate covenants, one for each and every country of each and
every state of the U.S. and each and every political subdivision of each
and every country outside the U.S. where this provision is intended to
be effective.
ARTICLE 22 - SOLICITATION
For a period of two years after the date of this Agreement, neither Holding
nor any of the Holders shall, either directly or indirectly as a stockholder,
investor, partner, director, officer, employee or otherwise, solicit or attempt
to induce any Restricted Employee (as defined below) to terminate his or her
employment with Xxxxxx or any affiliate of Xxxxxx, provided however, that it
shall not be a breach of this Article 22 for either Holding or the Holders to
solicit Restricted Employees by means of general public advertisements. For
purposes of this Agreement, a Restricted Employee shall mean any person, other
than employees terminated involuntarily by Xxxxxx, who (i) either (a) holds or
has access to trade secrets or other confidential information relating to the
business of Xxxxxx or (b) had an annual base salary in 1995 of at least NLG
75,000, and (iii) either (X) was an employee of Thermedics or any affiliate of
Thermedics on the date of this Agreement or (Y) was an employee of Xxxxxx on
the date of this Agreement and who is employed by Thermedics immediately after
the date of this Agreement.
Signed in Amsterdam on 25 January 1996.
Xxxxxx Holding B.V. Thermedics Detection, Inc.
by: by:
name : X.X.X. Xxxxx name : Xxxx Xxxxxx
title: Dir. title: Director of Finance
signature: /s/ X.X.X. Xxxxx signature: /s/ Xxxx Xxxxxx
Xx. X. Xxxxxx
signature: /s/ X. Xxxxxx
20
Reggeborgh Beheer B.V. Xx. X.X.X. Xxxxx
by:
name: X. Xxxxxxxxx
title: Dir. signature: /s/ X.X.X. Xxxxx
signature: /s/ X. Xxxxxxxxx
Xxx. Xxxxx Xxx. Xxxxxx
for approval for approval
signature: _______________ signature: _______________
21
