EXHIBIT 10.37
SHARE SALE AND PURCHASE AGREEMENT
by and among
OCE N.V.,
CALCOMP PACIFIC, INC.
and
NIPPON STEEL CORPORATION
May 31, 1999
SHARE SALE AND PURCHASE AGREEMENT
THIS SHARE SALE AND PURCHASE AGREEMENT (the "Agreement") is entered into as
of May 31, 1999, by OCE N.V., a Dutch corporation with its principal office at
Xx. Xxxxxxxxxx 00, X.X. Xxx 000, 0000 XX Venlo, the Netherlands ("OCE"), CALCOMP
PACIFIC, INC., a Nevada corporation with its principal office at 0000 Xxxx Xx
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, the U.S.A. ("CC"), and NIPPON STEEL
CORPORATION, a Japanese corporation with its principal office at 6-3, Xxxxxxxx
0-xxxxx, Xxxxxxx-xx, Xxxxx 000-0000, Xxxxx ("NSC") (each of OCE, CC and NSC
shall be referred to herein at the "Party" and collectively as the "Parties").
RECITALS
A. CC presently owns 1,706 shares of common stock of NS CalComp
Corporation, a Japanese corporation with its principal office at 00-0, Xxxxx-
Xxxxxxxxx 0-xxxxx, Xxxxxx-xx Xxxxx 000-0000, Xxxxx ("NSCC").
B. NSC presently owns 1,978 shares of common stock of NSCC.
C. OCE is willing to purchase and each of CC and NSC is willing to sell a
certain number of shares of NSCC's common stock on the terms and conditions set
forth herein.
NOW THEREFORE, in consideration of the mutual covenants, promises and
representations contained herein, the Parties hereby agree as follows:
1. Purchase and Sale.
------------------
Subject to the terms and conditions set forth herein, OCE shall
respectively purchase from CC and NSC, and CC and NSC shall respectively sell to
OCE, the following number of shares of NSCC's common stock for a purchase price
corresponding thereto on the Closing Date (as defined below):
Number of Shares Purchase Price
---------------- --------------
CC 1,706 Yen 796,690,570.-("CC Price")
NSC 1,590 Yen 742,519,347.-("NSC Price")
------------------------------------------------------------------------------------------------------------------
Total 3,296 Yen 1,539,209,917.-
The shares to be sold by CC to OCE shall be referred to as "CC shares" and the
shares to be sold by NSC to OCE shall be referred to as "NSC shares".
1
2. Closing Date; Delivery.
-----------------------
2.1 Closing. The closing of the purchase and sale of the CC Shares
and the NSC Shares (the "Closing") shall be held at 16:00 p.m. on May 31, 1999
at the office of NSCC following the satisfaction or waiver of all conditions set
forth in Section 5 or such other time, date and location as OCE, CC and NSC
agree (the "Closing Date").
2.2 Delivery and Payment. At the Closing;
(a) each of CC and NSC will deliver to OCE the share certificate of
the CC Shares and NSC Shares respectively, and
(b) the CC Price and the NSC Price will be paid by OCE to CC and
NSC respectively by wire transfer of immediately available funds to CC's account
and NSC's account respectively, pursuant to the instructions by each of CC and
NSC, given to OCE no less than five (5) Business Days prior to the Closing Date.
As used in this Agreement, a "Business Day" means any day, other than a Saturday
or Sunday, on which banking institutions are not required or authorized to close
in Amsterdam, the Netherlands, in Los Angeles, U.S.A. or in Tokyo, Japan.
2.3 Post-Closing Price Adjustment. After the Closing, the CC Price
and the NSC Price shall be adjusted respectively, reflecting incremental or de-
incremental change, if any, in the shareholder's equity (net assets) of NSCC
that is caused by the business operations of NSCC and/or any of the capitalized
R&D/MIS costs and/or any pension fund underfunded, which shall be determined by
the actuarial report to be provided by Mitsui Mutual Life Insurance, Co., all
during the period from January 1, 1999 through the Closing Date ("Change"), in
accordance with the calculation mechanism set forth below:
The amount of the Change shall be the difference between the shareholder's
equity (net assets) on the balance sheet as of December 31, 1998 as corrected in
accordance with the calculation formula shown in Exhibit A attached hereto
("Starting Shareholder's Equity") and shareholder's equity (net assets) on the
balance sheet as of the Closing Date as also corrected in accordance with the
calculation formula shown in Exhibit A attached hereto ("Ending Shareholder's
Equity"). The Parties shall, at OCE's costs and expenses, have Chuo Audit
Corporation (Coopers & Xxxxxxx) or its successor render an audit
report/actuarial report to the Parties with regard to the amount of the Change
("Audit Report") within four (4) weeks after the Closing Date. The amount of
the Change indicated in the Audit Report shall be in the amount to be adjusted
("Adjustment Amount"), 44% of which ("NSC Adjustment Amount") shall be allocated
to the NSC Price.
(a) In case that the amount of the Ending Shareholder's Equity is
greater than the Starting Shareholder's Equity, OCE shall pay the CC Adjustment
Amount to CC, and the NSC Adjustment Amount to NSC, respectively within five (5)
Business Days after the date on which OCE receives the Audit Report by wire
transfer of immediately available funds to CC's account and NSC's account
respectively, pursuant to the instructions by each of CC and NSC given to OCE.
2
(b) In case that the amount of the Ending Shareholder's Equity is
smaller than the Starting Shareholder's Equity, CC and NSC shall pay the CC
Adjustment Amount and the NSC Adjustment Amount respectively to OCE within five
(5) Business Days after the dates on which CC and NSC receives the Audit Report
respectively by wire transfer of immediately available funds to OCE's account
pursuant to the instructions by OCE given to CC and NSC respectively.
(c) In case that (i) the Adjustment Amount is zero (0), or (ii) the
Adjustment Amount is negligibly small and the Parties unanimously so agree, the
post-closing price adjustment set forth in this Section 2.3 shall not be made.
3. Representations and Warranties of CC and NSC.
---------------------------------------------
3.1 CC hereby represents and warrants to OCE as of the date
hereof with respect to the matters mentioned in this Section 3.1:
(a) Organization and Standing. CC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada.
(b) Corporate Power. CC has all requisite legal and corporate
power and authority to execute and deliver this Agreement and to carry out and
perform its obligations under the terms of this Agreement.
(c) Authorization. CC has taken all action required by
applicable law, its articles of incorporation or by-laws, if any, or otherwise
to authorize the execution and delivery of this Agreement. This Agreement, when
executed and delivered by the Parties, shall constitute valid and binding
obligations of CC, enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(d) No Violation or Default. The execution, delivery and
performance of and compliance with this Agreement, and the consummation of the
transactions contemplated hereby have not resulted and will not result in any
material violation of, or conflict with, or constitute a material default under,
the articles of incorporation or by-laws, if any, of CC or any of its agreements
or obligations or any applicable order, statute, rule, regulation, order or
decree, nor will they result in the creation of, any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of CC.
(e) Governmental Consent. Except for the filing required to be
made with the Ministry of Finance of Japan after the Closing in accordance with
the Foreign Exchange and Foreign Trade Law of Japan ("MOF Filing"), no consent,
approval or authorization of or designation, declaration or filing with any
governmental authority on the part of CC is required in connection with the
valid execution and delivery of this Agreement, or the transactions contemplated
hereby.
3
(f) Encumbrances. CC is and shall be on the Closing Date the
sole record and beneficial owner and holder of CC Shares as set forth in Section
1 above, free and clear of any claim, charge, mortgage, pledge, security, lien,
option, equity, power of sale or hypothecation.
(g) Brokers and Finders. Except for The Nomura Securities Co.,
Ltd. and its affiliates, whose fees, if any, shall be paid by CC and NSC, no
agent, broker, investment banker, intermediary, finder, person or firm acting on
behalf of CC or which has be retained by or is authorized to act on behalf of CC
is or would be entitled to any broker's or finder's fee or any other commission
or similar fee, directly or indirectly, from CC in connection with the execution
of this Agreement or upon consummation of the transactions contemplated herein.
(h) CC shares to be sold by CC to OCE hereunder represent 44%
of the entire capital of NSCC. Any and all CC Shares have been validly issued
and fully paid up and are freely transferable subject to the requirements set
forth in the Articles of Incorporation of NSCC.
(i) CC has obtained from the transferee of the business of
CalComp Inc. the letter attached hereto as Exhibit B which sets forth the
transferee's intention to supply spare parts to NSCC on terms and conditions
substantially compatible to those contained in the current supply agreement
between NSCC and CC.
3.2 NSC hereby represents and warrants to OCE as of the date
hereof with respect to the matters mentioned in this Section 3.2:
(a) Organization and Standing. NSC is a corporation duly
organized, validly existing and in good standing under the laws of Japan.
(b) Corporate Power. NSC has all requisite legal and corporate
power and authority to execute and deliver this Agreement and to carry out and
perform its obligations under the terms of this Agreement.
(c) Authorization. NSC has taken all action required by
applicable law, its articles of incorporation or by-laws, if any, or otherwise
to authorize the execution and delivery of this Agreement. This Agreement, when
executed and delivered by the Parties, shall constitute valid and binding
obligations of NSC, enforceable in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(d) No Violation or Default. The execution, delivery and
performance of and compliance with this Agreement, and the consummation of the
transactions contemplated hereby have not resulted and will not result in any
material violation of, or conflict with, or constitute a material default under,
the articles of incorporation or by-laws, if any, of NSC or any of its
agreements or obligations or any applicable order, statute, rule, regulation,
order or decree, nor will they result in the creation of, any mortgage, pledge,
lien, encumbrance or charge upon any of the properties or assets of NSC.
4
(e) Governmental Consent. Except for the filing required to be
made with the Ministry of Finance of Japan after the Closing in accordance with
the Foreign Exchange and Foreign Trade Law of Japan ("MOF Filing"), no consent,
approval or authorization of or designation, declaration or filing with any
governmental authority on the part of NSC is required in connection with the
valid execution and delivery of this Agreement, or the transactions contemplated
hereby.
(f) Encumbrances. NSC is and shall be on the Closing Date the
sole record and beneficial owner and holder of NSC Shares as set forth in
Section 1 above, free and clear of any claim, charge, mortgage, pledge,
security, lien, option, equity, power of sale or hypothecation.
(g) Brokers and Finders. Except for The Nomura Securities Co.,
Ltd. and its affiliates, whose fees, if any, shall be paid by CC and NSC, no
agent, broker, investment banker, intermediary, finder, person or firm acting on
behalf of NSC or which has be retained by or is authorized to act on behalf of
NSC is or would be entitled to any broker's or finder's fee or any other
commission or similar fee, directly or indirectly, from NSC in connection with
the execution of this Agreement or upon consummation of the transactions
contemplated herein.
(h) NSC shares to be sold by CC to OCE hereunder represent 41%
of the entire capital of NSCC. Any and all NSC Shares have been validly issued
and fully paid up and are freely transferable subject to the requirements set
forth in the Articles of Incorporation of NSCC.
3.3 Each of CC and NSC hereby jointly and severally represents
and warrants to OCE as of the date hereof as follows:
(a) Organization and Standing. NSCC is a corporation duly
organized, validly existing and in good standing under the laws of Japan. NSCC
has the requisite legal and corporate power and authority to own and operate its
properties and assets, and to carry on its business as presently conducted.
(b) Accuracy of Statements. All information contained in this
Agreement and all other written information relating to NSC which has been
delivered by any officer, director or agent of NSCC to any officer, director or
agent of OCE in the course of the due diligence investigation into NSCC
conducted by OCE on April 13 through 16, 1999 were, when given and (subject to
passage of time) are now, true and accurate in all material respects and either
CC or NSC is not aware of any fact or matter or circumstance not disclosed in
writing to OCE which would render any such information which was disclosed
untrue, inaccurate or misleading in any material respect.
(c) CC and NSC delivered and disclosed or had NSCC deliver or
disclose all documents and information relating to NSCC which had been required
by OCE to deliver or disclose for OCE to conduct its due diligence
investigations for the transactions contemplated by this Agreement. To the best
knowledge of CC and NSC, CC and NSC have not withheld or concealed information
from OCE which would have a material adverse effect on the financial condition,
results of operations, assets or liabilities of NSCC.
5
(d) The financial statements prepared in English for the two
years ended at December 31, 1998 present fairly the financial position of NSCC
as of the dates indicated therein and the results of the operations of NSCC for
the periods indicated therein, such financial statements have been prepared in
accordance with accounting principles generally accepted in Japan applied on a
consistent basis and there have been no adverse changes in the conditions,
prospects, results of operations or general affairs of NSCC since December 31,
1998. Furthermore, the said financial statements:
- contain, in accordance with accounting principles generally
accepted in Japan, full allowance for all liabilities and
capital commitments of NSCC, whether actual, contingent,
quantified, disputed or otherwise and there are no liabilities
and/or capital commitments other than those explicitly mentioned
therein;
- contain, in accordance with accounting principles generally
accepted in Japan, full allowance for bad and doubtful debts,
depreciation, amortization, obsolescence of assets and any
foreseeable losses; and
- are not adversely affected by an extraordinary or non-recurring
item, unless otherwise expressly stated therein.
(e) No obligations have been undertaken to or promises have been
made to non-shareholding third parties by NSCC to issue shares of NSCC.
(f) NSCC is in material respects in compliance with all
statutes, laws, regulations, agreements, including collective agreements, if
any, and other commitments with respect to employment practices and terms and
conditions of employment and remuneration and has not been nor is engaged in any
unfair labor practice and NSCC is not liable for any damages to any employee,
officer or director or former employee, officer or director of NSCC resulting
from the violation of any applicable employment law or agreement, nor to the
best knowledge of NSC and CC will it become liable for the same prior to or on
the closing because of the resignation of any of its employees, officers and/or
directors. There are no outstanding, pending or, to the extent known to NSC and
CC, threatened:
- unfair labor practice complaints or other complaint or
grievances against NSCC; or
- inspection or prosecution orders against NSCC under any labor
employment, social security or occupational health and safety
legislation and there is no basis for any such action;
NSCC has withheld and paid for all social security charges and contributions
required to be withheld or paid to the relevant contributions required to be
withheld or paid to the relevant authority or social security institution. No
dispute has arisen within the last three years between NSCC and material number
or category of its employees and to the best knowledge of NSC and CC there are
no present circumstances likely to give rise to such dispute. There are no
outstanding or pending claims, disputes or other controversies between NSCC and
any of its employees, officers and directors.
(g) Particulars of all pension schemes applicable to employees
and/or directors of NSCC have been disclosed to OCE. NSCC has paid all relevant
charges and made all relevant contributions under pension schemes of Kosei-
Nenkin, and Kosei-Nenkin-Kikin.
6
(h) There is no decree, order, judgement or other award outstanding
against NSCC by any court, governmental agency, arbitration tribunal or similar
agency and more in particular, that NSCC is not a party to any agreement or
arrangement, which infringes or should have registered under any anti-trust
legislation.
(i) To the best knowledge of NSC and CC, there are no outstanding,
pending or, to the extent known to NSC and CC, threatened suit against NSCC for
its infringement of any intellectual property rights held by any third party. To
the best knowledge of NSC and CC, there is no material infringement by any third
party of any intellectual property right owned or used by NSCC.
(j) NSCC has obtained all licenses, permissions and consents
required for the carrying on of its present business and NSCC is not, nor has it
conducted its business affairs at any time, in violation of any applicable law,
regulation, administrative order, or permit, and there is no violation of any
statute, regulation, order, or judgement of any court or governmental agency
each of which could have a material adverse effect on NSCC.
(k) NSCC has maintained insurance for property and fire the
contents of which have been disclosed to OCE.
(l) All income and other tax returns and reports required to be
filed by NSCC have been properly completed and filed with the appropriate
authorities and all taxes (including interest and penalties) due to any taxing
authorities from NSCC have been fully paid or are provided for in the books of
NSCC. No issues have been raised (and are pending) by the Japanese or any other
taxing authorities in connection with any of the tax returns and reports
referred to in the foregoing and there is no outstanding proceeding, audit,
investigation or dispute relating to the taxation of NSCC other than the audit
of NSCC's income and other tax returns and reports for the financial year ending
December 31, 1998 being conducted by the Japanese taxing authority.
(m) NSCC has not disposed any material assets that are necessary
for NSCC to conduct its current business since December 31, 1998 and none of
such assets will no longer be at its disposal as a sole result of the purchase
and sale of the CC Shares and NSC Shares hereunder.
(n) There has been no change to NSCC's warranty policies relating
to its sales of products and services which have been disclosed to OCE. NSCC has
not granted any express and specific guarantees concerning the functionality
and/or performance in connection with any change in the date format of any
software products made and/or sold by it.
(o) NSCC has carried out it business prudently and in the normal
and ordinary course of business since June 1, 1994.
4. Representations and Warranties of OCE. OCE represents and
--------------------------------------
warrants to CC and NSC as of the date hereof as follows:
(a) Organization and Standing. OCE is a corporation duly organized,
validly existing and in good standing under the laws of the Netherlands.
7
(b) Corporate Power. OCE has all requisite legal and corporate
power and authority to execute and deliver this Agreement and to carry out and
perform its obligations under the terms of this Agreement.
(c) Authorization. OCE has taken all action required by applicable
law, its memorandum of association, articles of association or by-laws, if any,
or otherwise to authorize the execution and delivery of this Agreement. This
Agreement, when executed and delivered by the Parties, shall constitute valid
and binding obligations of OCE, enforceable in accordance with its terms,
subject to laws of general application relating to bankruptcy, insolvency and
the relief of debtors and rules of law governing specific performance,
injunctive relief or other equitable remedies.
(d) No Violation or Default. The execution, delivery and
performance of and compliance with this Agreement, and the consummation of the
transactions contemplated hereby have not resulted and will not result in any
material violation of, or conflict with, or constitute a material default under
the memorandum of association, articles of association or by-laws, if any, of
OCE or any of its agreements or obligations or any applicable order, statute,
rule, regulation, order or decree, nor will they result in the creation of, any
mortgage, pledge, lien, encumbrance or charge upon any of the properties or
assets of OCE.
(e) Governmental Consent. Except for the MOF Filing, no consent,
approval or authorization of or designation, declaration or filing with any
governmental authority on the part of OCE is required in connection with the
valid execution and delivery of this Agreement, or the transactions contemplated
hereby.
(f) Access to Data. OCE has been provided with, or given reasonable
access to, all corporate books and records of NSCC and all material contracts
and documents related to the transaction contemplated by this Agreement. OCE has
had an opportunity to discuss NSCC's business, management and financial affairs
with NSCC's management. OCE has also had an opportunity to ask questions of
officers of NSCC, which questions were answered to its satisfaction.
5. Conditions to Closing.
----------------------
5.1 The completion of OCE's obligations at the Closing are subject to
the fulfillment, on or prior to the Closing Date, of all of the following
conditions, any of which may be waived in whole or in part by OCE:
(a) Representations and Warranties. The representations and
warranties made by CC and NSC in Section 3 shall be true and correct as of the
Closing Date in all material respects.
(b) Execution of Shareholders' Agreement. OCE, NSC and Sumitomo
Corporation which owns 194 shares of common stock of NSCC shall have entered
into the Shareholders' Agreement substantially in the form attached hereto as
Exhibit C ("Shareholders' Agreement").
8
(c) Performance of Obligations. CC and NSC shall have performed all
of their obligations on the Closing.
5.2 The completion of NSC's obligation at the Closing is subject to the
fulfillment, on or prior to the Closing Date, of all of the following
conditions, any of which may be waived in whole or in part by NSC:
(a) Representations and Warranties. The representations and
warranties made by OCE in Section 4 shall be true and correct as of the Closing
Date in all material respects.
(b) Execution of Shareholders' Agreement. OCE, NSC and Sumitomo
Corporation shall have entered into the Shareholders' Agreement.
(c) Performance of Obligations. OCE and CC shall have performed all
of their obligations on the Closing.
5.3 The completion of CC's obligation at the Closing is subject to the
fulfillment, on or prior to the Closing Date, of all of the following
conditions, any of which may be waived in whole or in part by CC:
(a) Representations and Warranties. The representations and
warranties made by OCE in Section 4 shall be true and correct as of the Closing
Date in all material respects.
(b) Performance of Obligations. OCE and NSC shall have performed
all of their obligations on the Closing.
6. Miscellaneous.
--------------
6.1 Indemnification. (a) CC agrees to and shall indemnify and hold
OCE harmless from and against, and shall pay to OCE any and all loss, liability,
damage or deficiency resulting from any breach of the respective warranties set
forth in Section 3.1 applicable only to CC ("CC-OCE Loss"), but only to the
extent not exceeding the CC Price, if OCE has given written notice to CC setting
out specific details of the CC-OCE Loss as soon as reasonably practicable after
OCE has become aware of the facts, matters or circumstances from which the CC-
OCE Loss arises; provided however, that CC shall be liable for neither the CC-
OCE Loss after the second anniversary of the Closing Date, nor the CC-OCE Loss
arising from the facts,matters or circumstances which were disclosed to OCE in
the course of negotiations leading to execution of this Agreement.
(b) NSCC agrees to and shall indemnify and hold OCE harmless from
and against, and shall pay to OCE any and all loss, liability, damage or
deficiency resulting from any breach of the respective warranties set forth
Section 3.2 applicable only to NSC ("NSC-OCE Loss"), but only to the extent not
exceeding the NSC Price, if OCE has given written notice to NSC setting out
specific details of the NSC-OCE Loss as soon as reasonably practicable after OCE
has become aware of the facts, matters or circumstances from which the NSC-OCE
Loss arises; provided however, that NSC shall be liable for neither the NSC-OCE
Loss after the second anniversary of the Closing Date, nor the NSC-OCE Loss
arising from the facts, matters
9
or circumstances which were disclosed to OCE in the course of negotiations
leading to execution of this Agreement.
(c) NSCC and CC jointly and severally agree to and shall indemnify
and hold OCE harmless from and against, and shall pay to OCE any and all loss,
liability, damage or deficiency resulting from any breach of warranties set
forth in Section 3.3 ("Additional OCE Loss), but only to the extent not
exceeding the sum of the CC Price and the NSC Price, if OCE has give written
notice to NSC and CC setting out specific details of the Additional OCE Loss as
soon as reasonably practicable after OCE has become aware of the facts, matters
or circumstances from which the Additional OCE Loss arises; provided, however
that NSC or CC shall be liable for neither the Additional OCE Loss after the
second anniversary of the Closing Date, nor for the Additional OCE Loss arising
from the facts, matters or circumstances which were disclosed to OCE in the
course of negotiations leading to execution of this Agreement.
(d) OCE agrees to and shall indemnify and hold NSC and CC harmless
from and against, and shall pay to NSC and CC any and all loss, liability,
damage, or deficiency incurred by NSC or CC, as the case may be, resulting from
a breach of warranties set forth in Section 4 ("Sellers Loss"), but only to the
extent not exceeding the sum of the CC Price and NSC Price, if CC or NSC has
given written notice to OCE setting out specific details of the Sellers Loss as
soon as reasonably practicable after CC or NSC has become aware of the facts,
matters or circumstances from which the Sellers Loss arises; provided however,
that OCE shall be liable for neither the Sellers Loss after the second
anniversary of the Closing Date, nor for the Sellers Loss arising from the
facts, matters or circumstances which were disclosed to CC and NSC in the course
of the negotiations leading the execution of this Agreement.
6.2 Governing Law and Dispute Settlement. (a) This Agreement and
all actions arising out of or in connection with this Agreement shall be
governed by and construed in accordance with the laws of Japan, without regard
to the conflicts of law provisions of Japan or of any other jurisdiction.
(b) All disputes not capable of amicable resolution among the
representatives of the Parties in such discussion or negotiation shall be
resolved, first, among the Parties, by referring such dispute to successively
higher levels of management of each of the Parties. In the event that management
is not capable of concluding a mutually acceptable settlement within sixty (60)
days after the date one Party notifies the other(s) of the dispute, all disputes
shall be resolved by arbitration held according to the ICC Rules and shall take
place in Tokyo, Japan. Each of the Parties hereby waives any objections which it
may now or hereafter have to the place of the arbitration. The Parties shall
share the procedural costs of the arbitration equally, unless the arbitrators
decide otherwise. Each Party shall pay its own attorney's fees and costs
incurred by it relating to the arbitration, unless the arbitrators decide
otherwise. The award of the arbitration shall; be final and binding upon the
Parties.
6.3 Survival. The representations, warranties, covenants and
agreements made herein shall survive until two (2) years after the Closing Date.
10
6.4 Successor and Assigns. The rights and obligations of the
Parties shall be binding upon and inure to the benefit of the successors,
assigns, heirs, administrators and permitted transferees of the Parties.
6.5 Prior Agreements. NSC shall not terminate any of the following
agreements between NSC and NSCC during the term thereof which is effective as of
the date hereof unless (a) NSCC is in breach of any representation or warranty,
or fails to perform any covenant or agreement, contained in the agreement in
question, (b) NSCC becomes insolvent or bankrupt or its substantial assets are
attached or (c) otherwise agreed to by OCE and NSC:
Supply/Distribution Agreements
Agreement on the Business Service Consignment Agreement dated as of
January 1, 1995,
Agreement on the Basic Conditions of Development Consignment dated of
January 1, 1995,
Software Free License Agreement dated January 1, 1995,
Equipment & Building Lease Agreement dated January 1, 1995, License and
Equipment
Lease Agreement dated November 1, 1992, and Memorandum on the Status of
Dispatched Personnel dated as of February 1, 1990
Upon the expiration of the said agreement, NSC shall discuss in good faith with
NSCC a possible renewal of such agreement.
6.6 NSCC's Director. NSC shall not require the removal or
replacement of the director of NSCC nominated by NSC during his term of office
which is effective as of the date hereof unless (a) such director wishes to
resign from the office of NSCC's director or (b) otherwise agreed to by OCE and
NSC. Upon the expiration of the said term of office, NSC shall discuss in good
faith with NSCC a possible re-nomination of such director.
6.7 NSCC's Officer. NSC shall not cease to dispatch to NSCC the NSC
personnel who is working as an officer of NSCC and is also nominated as a
director of NSCC by OCE during his term of office as NSCC's director which is
effective as of the date hereof unless (a) such NSC personnel wishes to resign
from his employment with NSC or to work for NSC without a solicitation of any
kind from NSC or (b) otherwise agreed to by OCE and NSC.
6.8 R&D Engineers. NSC shall not cease to dispatch to NSCC any of
the persons who is working as a research and development engineer for NSCC as of
the date hereof unless (a) such person wishes to resign from his employment with
NSC or to work for NSC without a solicitation of any kind from NSC or (b)
otherwise agreed to by OCE and NSC.
6.9 Non-Solicitation. NSC and CC shall undertake not to, directly
or indirectly, solicit, employ or hire, as employee, consultant, or agent, any
of NSCC employees working at NSCC when solicited or hired other than those
dispatched from NSC for a period of three (3) years from the Closing.
6.10 Entire Agreement, Amendments and Waivers. This Agreement
constitutes the full and entire understanding and agreement among the Parties
with regard to the subject matters hereof, and supersedes all other prior
agreements, whether written or oral, with
11
regard hereto. Any provision of this Agreement may be amended, waived or
modified only upon the written consent of the Parties.
6.11 Notices. Any notice, request or other communication required
or permitted hereunder shall be in writing and shall be sent by facsimile or
mailed by registered or certified mail, postage prepaid, or otherwise delivered
by hand or messenger, addressed:
(i) if to OCE, at the address appearing at the beginning of this
Agreement, Attention: Legal Dept., Facsimile: (00) 00-000-0000, or at such other
address as OCE shall have furnished to CC and NSC in writing pursuant to this
Section 6.11,
(ii) if to CC, at the address appearing at the beginning of this
Agreement, Attention: Xx. Xxxx X. Xxxxxxx, Facsimile: (0) 000-000-0000, or at
such other address as CC shall have furnished to OCE and NSC in writing pursuant
to this Section 6.11,
(iii) if to NSC, at 00-0 Xxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx 000-0000,
Xxxxx, Attention: Legal Dept., Electronics & Information Systems Division,
Facsimile: (00) 0-0000-0000, or at such other address as NSC shall have
furnished to OCE and CC in writing pursuant to this Section 6.11.
Each such notice or other communication shall for all purposes be treated
as effective or having been given when given if delivered personally, or if sent
via facsimile upon acknowledgement of receipt at the facsimile number listed
above for such Party.
6.12 Severability. If any provision of this Agreement shall be
judicially determined to be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, provided that no such severability shall be
effective if it materially reduces the economic benefit of this Agreement to any
Party.
6.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall be deemed to constitute one instrument.
6.14 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.15 Delays or Omissions. Except as expressly provided herein, no delay
or omission to exercise any right, power or remedy accruing to any Party upon
any breach or default of any other Party under this Agreement, shall impair any
such right, power or remedy of such non-defaulting Party nor shall it be
construed to be a waiver of any such breach or default, or any acquiescence
therein, or of or in any similar breach or default thereafter occurring nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default previously or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any Party of any
breach or default under this Agreement, or any waiver on the part of any Party
of any provisions or conditions of this Agreement shall be made pursuant to
Section 6.10 in writing, and shall be effective only to the extent specifically
set forth in such writing. All remedies, either under this Agreement or by law
or otherwise afforded to any Party, shall be cumulative and not alternative.
6.16 Expenses. Each Party shall be responsible for all fees and
expenses incurred by it in connection with the transactions contemplated hereby.
12
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
date first written above.
On behalf of
OCE N.V.
By: /s/
-------------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Executive Director Strategic Business Unit
Wide Format Printing Systems
OCE - TECHNOLOGIES, B.V.
CALCOMP PACIFIC, INC.
By: /s/
-------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
NIPPON STEEL CORPORATION
By: /s/
-------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Division Director
Electronics and Information Systems Division
13
