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AMENDED AND RESTATED SHARE PURCHASE AGREEMENT
This Amended and Restated Share Purchase Agreement is made and entered into on
July 9, 1997, with effect as of June 4, 1997 and amends and restates in its
entirety the Share Purchase Agreement dated as of June 4, 1997 by and among the
undersigned parties.
AMONG THE UNDERSIGNED:
Xx. Xxxxxx Xxxxx, a French citizen, residing at 00 xxxxx xx Xxxxxxx, 00000
Xxxxxxx;
Xx. Xxxxxxx Xxxxx, a French citizen, residing at 00 xxx Xxxxxxx, 00000 Xxxxxxx;
Xx. Xxxxxx Bolle, a French citizen, residing at 4 boulevard Xxxxx, 01100
Oyonnax;
Xxx. Xxxxxxxx Xxxxx Passaquay, a French citizen, residing at 0 xxx xx Xxxxxxx xx
Xxxxxx, 00000 Xxxxxx;
Xx. Xxxxxxxx Xxxxx, 00 xxx, xxxxxxxxx xx xx Xxxxxxxx, 00000 Neuilly-sur-Seine;
and
Xxx. Xxxxxxxxxx Xxxxx, 2 rue Macretet, 01100 Arbent,
Hereinafter collectively referred to as the "Sellers",
ON THE ONE HAND,
AND:
Bolle Inc., a corporation governed by the laws of the state of Delaware, United
States of America, having its registered office at 555 Xxxxxxxx Xxxxx Avenue,
Suite B-302, Rye, New York 10580 USA, represented by Xxx Xxxxxx, duly empowered
for the purposes hereof,
Hereinafter referred to as the "Purchaser",
AND:
BEC Group, Inc., a corporation governed by the laws of the state of Delaware,
United States of America, having its registered office at 555 Xxxxxxxx Xxxxx
Avenue, Suite B-302, Rye, New York 10580 USA, represented by Xxx Xxxxxx, duly
empowered for the purposes hereof,
Hereinafter referred to as the "Parent Company",
ON THE OTHER HAND.
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(The Sellers, the Purchaser and the Parent Company are hereinafter referred to
collectively as the "Parties" and individually as a "Party").
WHEREAS:
The Sellers own the entire issued share capital (i.e., 39,600 shares,
hereinafter the "Shares") of Holding B.F., a corporation ("societe anonyme")
governed by the laws of France, having its registered office at Les Leches
Rouges, 39360 Viry, France, registered with the Commercial and Companies
Registry of Lons Xx Xxxxxxx under the number B 393 634 852, and whose capital is
FRF 39,600,000 (hereinafter "Holding").
The Holding in turn will hold at Closing:
- Two thousand, four hundred ninety-nine (2,499) shares out of a total of
two thousand, five hundred shares (2,500) shares (with the remaining
one (1) share being held by RM Plastiques) in Etablissements Bolle, a
societe en nom collectif, governed by the laws of France having its
registered office at 0000 xxxxxx Xxxxxxx Xxxxxx, 00000 Xxxxxx, Xxxxxx,
registered with the Commercial and Companies Registry of Xxxxx en
Bresse under the number B 755 200 441, and whose capital is FRF
125,000, each share having a par value of FRF 50 (hereinafter the
"Company"). The Company's principal activity is the manufacture and
sale of optical products;
- One thousand five hundred ninety-nine (1,599) shares out of a total of
one thousand, six hundred (1,600) shares (with the remaining one (1)
share being held by Bolle Protection) of Bolle Production SARL, a
societe a responsabilite limitee, governed by the laws of France having
its registered office at 0 xxx xx Xxxxxxxxxxxxx, 00000 Arbent,
registered with the Commercial and Companies Registry of Xxxxx en
Bresse under the number B 766 200 232, and whose equity capital is FRF
480,000, each share having a par value of FRF 300 (hereinafter "Bolle
Production");
- One thousand, nine hundred ninety-nine (1,999) shares out of a total of
two thousand (2,000) shares (with the remaining one (1) share being
held by Bolle Protection) of RM Plastiques, a societe a responsabilite
limitee, governed by the laws of France having its registered office at
0 xxx xx Xxxxxxxxxxxxx, 00000 Arbent, registered with the Commercial
and Companies Registry of Xxxxx en Bresse under the number B 311 811
251, and whose equity capital is FRF 250,000, each share having a par
value of FRF 1,250 (hereinafter "RM Plastiques");
- Two thousand, five hundred (2,500) shares out of a total of five
thousand (5,000) shares (with the remaining two thousand, five hundred
(2,500) shares being held by the Company) of Bolle Protection, a
societe a responsabilite limitee, governed by the laws of France having
its registered office at 000, xxx Xxxxxx Xxxxxxxxx, 00000 Xxxxxxxxxxxx,
registered with the Commercial and Companies Registry of Lyon under the
number B 325 330 322, and whose equity capital is FRF 1,000,000, each
share having a par value of FRF
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200, such shareholding representing 50% of the entire share capital of
such company (hereinafter "Bolle Protection");
- 100% of the issued share capital (i.e., 2,000 shares) of Bolle
Nederland B.V., a limited liability company governed by the laws of the
Netherlands, having its registered office at Xxxxxxxxxxx 00X, 0000XX
Xxxxxxxxxxx, and whose authorized share capital is xxxxxx 200,000, with
an issued share capital of 40,000 xxxxxx, each share having a par value
of 100 xxxxxx (hereinafter "Bolle BV");
The Company shall hold at Closing:
- Two thousand, five hundred (2,500) shares of Bolle Protection, as
defined hereabove, such shareholding representing 50% of the entire
share capital of such company;
- 51% of the issued share capital (i.e., 510 of 1,000 shares) of Bolle
Sunglasses Limited, a limited liability company governed by the laws of
England having its registered office at 0, Xxxxxxx Xxxxx, Xxxx'x Xxx,
Xxxxxx XX0X 0XX, and whose authorized share capital is pound sterling
1,000, each share having a par value of pound sterling 1 (hereinafter
"Bolle Sunglasses");
- 51% of the issued share capital (i.e., 5,100 of 10,000 shares) of Bolle
Canada Inc. a corporation governed by the laws of the Province of
Ontario having its registered office at 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxx
000, Xxxxxxx, Xxxxxxx, and whose share capital is 10,000 Canadian
dollars, each share having a par value of Canadian $ 0 (xxxxxxxxxxx
"Xxxxx Xxxxxx");
- 71,250 shares of Real Bolle Brazil, a limited liability company
governed by the laws of Brazil, having its registered office at Xxx
Xxxxx Xxxxx Xxxxx 000, Xxx Xxxxx, Xxxxxx, registered under the number
CGC 61.572.004;
The foregoing companies in which Holding or the Company owns an equity interest
are collectively referred to as the "Subsidiaries". Holding, the Company and the
Subsidiaries are collectively referred to as the "Bolle Group".
The Purchaser is a wholly owned subsidiary of the Parent Company.
The Parent Company, through Bolle America Inc., is presently the distributor in
the United States of the Company's products.
The Parties, Holding and the Company entered into a Letter of Intent dated
February 21, 1997 which outlined their mutual intentions with respect to the
acquisition by the Purchaser of all the Shares.
The Purchaser now intends to purchase and the Sellers intend to sell all of the
Shares subject to the terms and conditions contained herein.
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NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1 DEFINITIONS
"AFFILIATE" means, with respect to any specified person, a person that directly,
or indirectly through one or more intermediaries, controls or is controlled by,
or is under common control with, the person specified.
"AGREEMENT" means this agreement including all recitals, schedules and exhibits
hereto.
"BEC CERTIFICATE OF DESIGNATIONS" means the certificate of designations for
10,000 shares of Series A Preferred Stock in the Parent Company attached as
ANNEX 3.1.3 hereto.
"BOLLE CANADA" shall have the meaning provided in the recitals to this
Agreement.
"BOLLE DIFFUSION" shall mean Bolle Diffusion France, a societe a responsabilite
limitee governed by the laws of France having its registered office at 00, xxx
Xxxxxx xxx Xxxxxxxx, 00000 Courbevoie, registered with the Commercial and
Companies Registry of Nanterre under the number B 339 577 496, with a registered
share capital of FRF 250,000, each share having a par value of FRF 100.
"BOLLE INC. CERTIFICATE OF DESIGNATIONS" means the certificate of designations
for [...] shares of Series A Preferred Stock in Bolle Inc. attached in ANNEX
3.1.5 hereto.
"BOLLE FRANCE" shall mean each of Holding and the French Subsidiaries as
hereinafter defined.
"BOLLE GROUP" shall have the meaning provided in the recitals to this Agreement.
"BOLLE BV" shall have the meaning provided in the recitals to this Agreement.
"BOLLE PRODUCTION" shall have the meaning provided in the recitals to this
Agreement.
"BOLLE PROTECTION" shall have the meaning provided in the recitals to this
Agreement.
"BOLLE SUNGLASSES" shall have the meaning provided in the recitals to this
Agreement.
"BUSINESS" means the business of manufacturing, selling and distributing optical
products, including, without limitation, eyeglasses, optical frames, sunglasses
and safety glasses and other optical products and accessories as currently
carried on by Bolle France.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or the days on which
the banks are closed as required or authorized by law to be closed in France or
in the USA.
"CLOSING" means the completion of all transactions contemplated under this
Agreement, which
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shall take place on the Closing Date at Xxxxx & XxXxxxxx, 00, xxxxxx Xxxxxx,
00000 Xxxxx, Xxxxxx or at such other location as the parties may mutually agree.
"CLOSING DATE" has the meaning as defined in Article 5.1 hereafter.
"COMMON STOCK" has the meaning as set out in Article 3.1.4.
"COMPANY" has the meaning specified in the recitals to this Agreement.
"CONFIDENTIALITY AGREEMENT" means the confidentiality agreement signed between
the Sellers and the Parent Company on August 28, 1996.
"DATA ROOM LIST" shall have the meaning provided in Article 7.2.4.
"DEFERRED PAYMENT PREFERRED STOCK" shall have the meaning provided in Article
3.1.5.
"DEPOSIT" has the meaning provided in Article 5.3.1.
"EMPLOYMENT AGREEMENTS" have the meaning specified in the Article 4.3.1.
"ENVIRONMENTAL LAW" means any law, regulation, order, judgment or decree
relating to the protection of the environment (including air, noise, odor,
ground water, surface water, water, soil and natural resources) or to the use,
storage, handling, release or disposal of hazardous or toxic substances as in
force in France or in any Departement or Region in France in which the Company
or a French Subsidiary is located and as is in effect on the Closing Date.
"FINANCIAL STATEMENTS" shall have the meaning provided in Article 6.10.
"FRENCH SUBSIDIARIES" means the Company, Bolle Production, Bolle Protection, and
RM Plastiques.
"FRF" means French Francs.
"FRENCH GAAP" means the prevailing generally accepted accounting principles
applicable in France.
"GOVERNMENTAL AUTHORITY" means any United States or French, federal, state or
local or any governmental, regulatory or administrative authority, agency or any
court tribunal or judicial or arbitral body.
"HOLDING" has the meaning provided in the recitals.
"HOLDING FINANCIAL STATEMENTS" shall have the meaning provided in Article 6.10.
"INDEMNIFYING PARTY" shall have the meaning provided in Article 9.4.
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"INDEMNIFIED PARTY" shall have the meaning provided in Article 9.4.
"INTELLECTUAL PROPERTY" means patents, trademarks, trade names, copyrights,
logos, registered designs and models registered in any jurisdiction.
"JUDGMENTS" means any judgments, orders, rulings or awards of any court,
arbitrator or other judicial authority or any governmental, administrative or
regulatory authority.
"LAWS" means any laws, rules or regulations of any governmental, administrative
or regulatory authority including, without limitation, the applicable laws of
France and of any region and departement of France in which a Bolle France
facility is located or in which any of Bolle France conducts the Business.
"LETTER OF INTENT" has the meaning provided in the recitals.
"MATERIAL ADVERSE EFFECT" means, in connection with the Bolle Group, any
circumstance, change, event, transaction, loss, failure, effect or other
occurrence (other than those relating to or affecting the economy generally or
the optical products market in particular), which when taken as a whole,
significantly and adversely impacts on the assets, financial condition,
operations or operating results of the Bolle Group.
"MATERIAL ORAL CONTRACTS" shall have the meaning provided in Article 6.17.
"MATERIAL WRITTEN CONTRACTS" shall have the meaning provided in Article 6.17.
"NET CASH" shall have the meaning provided in Article 3.4 (i).
"PARENT COMPANY" has the meaning provided in the first paragraph of this
Agreement.
"PARTY/PARTIES" shall have the meaning provided in the first paragraph of this
Agreement.
"PERMITS" means any permits, authorizations, approvals, registrations and
licenses required by applicable Laws for the carrying on of the Business or
necessary under any applicable town and country planning legislation for the
existing use of any of the properties currently leased or owned by Bolle France
necessary to the Business, and/or for the construction of any building or works,
carried out in the past or currently in progress, by any of Bolle France.
"PREFERRED STOCK" shall have the meaning provided in the BEC Certificate of
Designations.
"PROCEEDING" means any action, suit, claim or legal, administrative, arbitration
or other alternative dispute resolution proceeding or investigation
(collectively "Proceedings").
"PROPERTY SALE AGREEMENT" shall mean the conditional agreement for the sale of
real property located in Arbent which is the subject of the construction lease
attached in ANNEX 3.3, executed as of the date hereof and attached in ANNEX
5.2.7.
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"PROPERTY PRICE" shall have the meaning provided in Article 3.3.
"PURCHASE PRICE" has the meaning specified in Article 3.1.
"PURCHASER" has the meaning provided in the first paragraph of this Agreement.
"RELATED AGREEMENTS" shall mean the Employment Agreements, the Deed of Sale, the
Warrant Agreement, the BEC Certificate of Designations and the Bolle Inc.
Certificate of Designations.
"REAL BOLLE BRAZIL" has the meaning provided in the recitals.
"RM PLASTIQUES" has the meaning provided in the recitals.
"REPRESENTATIONS AND WARRANTIES" shall mean those representations and warranties
in Article 6.
"SEC DOCUMENTS" shall have the meaning as defined in Article 8.3.
"SEC REPORTS" shall have the meaning as defined in Article 8.3.
"SELLERS" shall have the meaning provided in the first paragraph of this
Agreement.
"SHARES" shall have the meaning provided in the recitals.
"SPIN-OFF" shall have the meaning as provided in Article 8.2 (b) of the Warrant
Agreement.
"SUBSIDIARY/IES" shall have the meaning provided in the recitals.
"TAX OR TAXATION" shall include, but is not limited to, corporation tax, income
tax, capital gains tax, capital transfer tax, capital acquisitions tax, general
sales tax, property tax, equalization tax, business tax, value added tax,
dividend or any other withholding tax, salary and payroll taxes, franchise
taxes, use or occupancy taxes, social contributions, including social security
contributions, customs and other import duties, excise duties, gift tax,
inheritance tax, stamp duty, capital duty, registration tax or transfer tax, any
estimated or advance payments related thereto and all civil or criminal
penalties, charges, surcharges and interest relating to any claim for Taxation
or resulting from a failure to comply with the provisions of any enactment
relating to Taxation.
"US$" means US dollars.
"WARRANT AGREEMENT" shall have the meaning provided in Article 3.1.2.
"WARRANTS" shall have the meaning provided in Article 3.1.2.
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ARTICLE 2 SALE OF THE SHARES
Subject to the terms and conditions contained in this Agreement, the Sellers
hereby agree to sell and deliver to the Purchaser, who irrevocably agrees to
purchase, the Shares.
ARTICLE 3 CONSIDERATION
3.1 The sale of the Shares is granted and accepted in consideration of a
total price (hereinafter referred to as the "Purchase Price") as
defined herebelow:
3.1.1 One hundred seventy-nine million, eight hundred thousand
French Francs, (FRF 179,800,000) and;
3.1.2 Warrants to the Sellers for 2,130,000 shares of common stock
of the Parent Company (the "Warrants") in accordance with a
warrant agreement substantially in the form attached as ANNEX
3.1.2 hereto ("the Warrant Agreement") and;
3.1.3 10,000 shares of Series A Preferred Stock in the Parent
Company for a value of Fifty-five million French Francs (FRF
55,000,000) issued pursuant to the terms of the BEC
Certificate of Designations ("the Preferred Stock") and;
3.1.4 One hundred (100) shares of common stock of Bolle Inc., being
the equivalent of 5% of the issued and outstanding share
capital of Bolle Inc. at Closing (the "Common Stock");
3.1.5 Sixty-four thousand, one hundred and twenty (64,120) shares of
Series A Preferred Stock in Bolle Inc. for a value of
sixty-four million, one hundred twenty thousand French Francs
(FRF 64,120,000), or eleven million, fifty-five thousand, one
hundred and seventy-two US dollars ( US $ 11,055,172), the US
dollar equivalent (the "Deferred Payment Preferred Stock")
issued pursuant to the terms of the Bolle Inc. Certificate of
Designations.
3.2 The payment of the Purchase Price shall be made in the following
manner:
3.2.1 One hundred seventy-nine million, eight hundred thousand
French Francs, (FRF 179,800,000), less Sellers' financial and
legal advisors expenses which have not been paid directly by
Sellers, and less the Deposit, shall be paid to the Sellers in
cash at Closing by wire transfer to the Sellers' account
number previously provided to Purchaser;
3.2.2 The issue of the Warrants pursuant to and having the rights
set out in the Warrant Agreement;
3.2.3 The issue of the Preferred Stock pursuant to and having the
rights set out in the BEC Certificate of Designations;
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3.2.4 The issue of the Common Stock;
3.2.5 The issue of the Deferred Payment Preferred Stock pursuant to
and having the rights set out in the Bolle Inc. Certificate of
Designations.
3.3 In addition to the Purchase Price, the Purchaser or a French affiliate
thereof, shall cause the Company to pay at Closing, subject to
satisfaction of the conditions in the Property Sale Agreement, a net
price, with no reductions, of two million, five hundred thousand French
Francs (FRF 2,500,000), being the price for the real property in Arbent
(the "Property Price"), which is subject to the construction lease
dated December 19, 1991 as shown in ANNEX 3.3. Such sum shall be paid
to MaTtre Clerc, the Notary appointed by the Purchaser, who shall be
responsible for distributing immediately after Closing such sum pro
rata to the owners of the above mentioned property. The Purchaser shall
be responsible for all notarial and registration fees and registration
taxes (including stamp duties) related to such purchase.
3.4 [The Sellers undertake not to dispose of any of the Common Stock for a
period of three (3) years from the Closing Date, except in the case of
transactions involving all of the shareholders of Bolle Inc. on a pro
rata basis. The Parent Company guarantees that such Common Stock
including any additional shares of Common Stock of Bolle Inc. hereafter
acquired by Sellers by virtue of stock splits or similar events, if
any, shall have an aggregate value of U.S. $ 3,301,500 by the third
anniversary of the Closing Date ("the Minimum Value"). On the third
anniversary of the Closing Date, should the closing market price of the
Bolle Inc. common stock or, in the event that the Bolle Inc. common
stock is not publicly traded on such date, the fair market value
thereof as determined by an independent third party expert named by the
Parties, be less than the aggregate U.S. $ 3,301,500, the Parent
Company shall immediately pay the Sellers in cash or freely tradeable
stock of Parent Company's common stock, at Parent Company's option, the
difference between the actual value of the Common Stock and the Minimum
Value.]
ARTICLE 4 CONDITIONS PRECEDENT
4.1 Conditions to Purchaser's Obligations
The Purchaser's obligations required to be performed by it at Closing,
shall be subject to the following conditions precedent being all
satisfied or waived in writing by the Purchaser on or before the
Closing Date (provided that any such waiver shall also be deemed a
waiver of any claim by the Purchaser for damages or any other remedy,
whether pursuant to Article 9 hereof or otherwise, as a result of the
failure to satisfy such condition, including any breach of
Representation or Warranty or breach of agreement constituting such
failure):
4.1.1 The Representations and Warranties of the Sellers contained in
Article 6 shall be accurate in all material respects as of the
date hereof and as of the Closing Date
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as though restated on and as of such date (except in the case
of any representation or warranty that by its terms is made as
of a date specified, therein, which shall be accurate in all
material respects as of such date);
4.1.2 The Sellers shall have performed and complied with all
agreements required by this Agreement to be performed or
complied with by them prior to or at the Closing as listed in
Articles 4.1, 4.3, and 5.2.
4.1.3 The book net assets of the Bolle Group as of December 31, 1996
shall be no less than fifty million French Francs (FRF
50,000,000).
4.1.4 There has been no Material Adverse Effect on Bolle France
between January 1, 1997 and the Closing Date and Bolle France
shall have operated its businesses respectively in the
ordinary course, consistent with its past practices, having
made no material changes to its business and accounting
practices concerning working capital during such period.
Notwithstanding the above, during such period :
(a) It is understood that the Company no longer has any
interest in Societe Nouvelle Machurat as a result of a
capital reduction for FRF 125,000 as provided in the
Shareholders Meeting minutes attached hereto as ANNEX
4.1.4(a).
(b) The Sellers shall be permitted to reorganize the
ownership of the Subsidiaries, for purposes of the
Closing in accordance with this Agreement, under the
terms of EXHIBIT 6.25 as concerns the French
Subsidiaries, and shall keep the Purchaser informed
thereof.
(c) The Purchaser is aware that the sales of Bolle France
for the first four months of 1997 are lower than
during the equivalent period in 1996 as provided in
ANNEX 4.1.4(c).
None of the facts provided in 4.1.4 (a) - (c) hereabove shall
be considered as a reason to not proceed with the Closing.
4.1.5 There will have been no distributions by Bolle France to the
Sellers as from May 29, 1997, whether in the form of
dividends, bonuses or otherwise except as provided in Article
3.4 or Article 4.2.5.
4.1.6 The Parent Company shall have received the Holding Financial
Statements for the year ended December 31, 1996 prior to
Closing which are unqualified and consolidated. Accounts shall
be prepared by management of Holding and audited by Price
Waterhouse. The Parent Company, or one of its affiliates,
shall pay all expenses related to the Holding Financial
Statements and shall provide a copy thereof to the Sellers
upon receipt thereof.
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4.2 Conditions to Sellers' Obligations
The Sellers' obligations required to be performed by them at Closing,
shall be subject to the following conditions precedent being all
satisfied or waived in writing by the Sellers on or before the Closing
Date (provided that any such waiver shall also be deemed a waiver of
any claim by the Sellers for damages or any other remedy as a result of
the failure to satisfy such condition, including any breach of
representation or warranty or breach of agreement constituting such
failure):
4.2.1 The representations and warranties of the Purchaser and the
Parent Company contained in Articles 7 and 8 respectively
shall be accurate in all material respects as of the date
hereof and as of the Closing Date.
4.2.2 The Purchaser and the Parent Company shall have materially
performed and complied with all agreements required by this
Agreement to be performed or complied with by them prior to or
at the Closing;
4.2.3 The Parent Company shall have delivered the Warrants to the
Sellers substantially in the form provided in the Warrant
Agreement;
4.2.4 The Parent Company shall have delivered the Series A Preferred
Stock in the Parent Company as reflected in the BEC
Certificate of Designations as well as the duly filed BEC
Certificate of Designations to the Sellers;
4.2.5 Bolle Inc. shall have delivered the Series A Preferred Stock
in Bolle Inc. as reflected in the Bolle Inc. Certificate of
Designations as well as the duly filed Bolle Inc. Certificate
of Designations to the Sellers;
4.2.6 The payment to each of Xx. Xxxxxxx Xxxxx, Xx. Xxxxxx Bolle and
Xxx. Xxxxxxxx Xxxxx Passaquay as compensation for their
employment for the period of January 1, 1997 to June 30, 1997,
of 50% of their annual salaries as defined in their respective
Employment Agreements less any payment for employment for such
period which has already been received by each of the above
mentioned Sellers;
4.2.7 Approval of the acquisition of Holding by the board of
directors, and if applicable by the shareholders, of the
Parent Company and the Purchaser shall have been received;
4.2.8 Approval of the issuance of the Warrants and of the terms of
the Warrant Agreement by the board of directors, and if
applicable by the shareholders of the Parent Company, as well
as by any Governmental Authorities, shall have been received;
4.2.9 Approval of the issuance of (i) the Preferred Stock and the
BEC Certificate of Designations and (ii) the Deferred Payment
Preferred Stock, the Common Stock
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and the Bolle Inc. Certificate of Designations, and of the
terms thereof by the board of directors, and if applicable by
the shareholders of the Purchaser and the Parent Company
respectively, as well as by any Governmental Authorities,
shall have been received.
4.2.10 Sellers shall have approved the Holding Financial Statements.
4.2.11 The Purchaser shall have delivered the Common Stock to the
Sellers.
4.3 Conditions to Purchaser's and Sellers' Obligations
The Parties' obligations required to be performed by them at Closing,
shall be subject to the following conditions precedent being all
satisfied on or before the Closing Date :
4.3.1 The applicable Parties shall have entered into the Warrant
Agreement, the BEC Certificate of Designations and the Bolle
Inc. Certificate of Designations, and caused the following
agreements, collectively the "Employment Agreements", to have
been entered into:
(a) the consultancy agreement between Xxxxxxx Xxxxx and
the Company substantially in the form as attached in
ANNEX 4.3.1(a) hereto;
(b) the employment agreement between Xxxxxxxx Xxxxx
Passaquay and the Company, substantially in the form
as attached in ANNEX 4.3.1(b) hereto;
(c) the employment agreement between Franck Bolle and the
Company, substantially in the form as attached in
ANNEX 4.3.1(c) hereto;
(d) the employment agreement between Xxxxxxxx Xxxxx and
Bolle Diffusion substantially in the form as attached
in ANNEX 4.3.1(d) hereto;
(e) the employment agreement between Xxxx-Xxxxxx
Passaquay and the Company, substantially in the form
as attached in ANNEX 4.3.1(e) hereto.
4.3.2 At Closing, Purchaser shall enter into a mutually satisfactory
agreement with Xxxxxxxx Xxxxx concerning the transfer of Bolle
Diffusion, reflecting the term sheet attached in ANNEX 4.3.2
hereto.
4.3.3 The Parties shall have agreed on the modifications required to
be made to the Parent Company's stock option plan, or a
subplan thereof, in order for it to qualify under French tax
and labor laws.
4.3.4 All necessary approvals of any Governmental Authority for the
operations provided herein shall have been received prior to
the Closing Date.
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4.3.5 The Purchaser shall have sufficient funds to finance the
Purchase Price.
ARTICLE 5 CLOSING DATE
5.1 The Parties have agreed that the transfer of the ownership of the
Shares in favor of the Purchaser shall take place as soon as possible,
but in no case later than July 21, 1997 (the "Closing Date").
5.2 On the Closing Date, the following documents shall be delivered by the
Sellers to the Purchaser:
5.2.1 the ordre de mouvement (share transfer form) relating to the
Shares, duly signed and made out in favor of the Purchaser;
5.2.2 those letters of resignation of the Directors of Bolle France,
required by the Purchaser effective as of the Closing Date.
5.2.3 a copy, certified as true and exact, of the minutes of the
board of directors' meetings of Bolle France each
respectively, calling for ordinary general meetings to take
place on the Closing Date to acknowledge the resignation of
the Directors and to appoint the persons designated by the
Purchaser as new Directors of Bolle France each respectively;
5.2.4 the corporate registers of Bolle France including the share
transfer registers, the registers of minutes of meetings of
the Boards of Directors and of general meetings of
shareholders, the attendance registers for the meetings of the
Boards of Directors and the attendance sheets for general
meetings of shareholders, and the shareholder accounts all of
which shall be accurate as of the Closing Date; and
5.2.5 A deed of sale executed by the owners of the property referred
to in Article 3.3 hereabove in a form reasonably satisfactory
to the Parties and their respective notaries.
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5.3 On the Closing Date, the following documents shall be delivered by the
Purchaser and the Parent Company to the Sellers:
5.3.1 a certificate from the Parent Company and the Purchaser
confirming their acceptance that the deposit provided by the
Parent Company to the Sellers upon signature of the Letter of
Intent (the "Deposit") be applied to the Purchase Price.
5.3.2 a copy, certified as a true and exact by the President of
Purchaser of the minutes of the meeting of the board of
directors of Purchaser approving the acquisition of Holding;
5.3.3 a copy, certified as a true and exact by the President of the
Parent Company of the minutes of the meeting of the board of
directors of the Parent Company approving the acquisition of
Holding and the issuing of the Warrants, in accordance with
the Warrant Agreement, the Preferred Stock and the Certificate
of Designations.
5.3.4 A copy, certified as true and exact by the President of the
Purchaser of the minutes of the meeting of the board of
directors of the Purchaser, approving the issuance of the
Common Stock, the Deferred Payment Preferred Stock and the
Bolle Inc. Certificate of Designations.
5.3.5 the deed of sale referred to in Article 5.2.5, executed by
Purchaser or one of its affiliates.
5.3.6 copy of the wire transfer order referred to in Article 3.2.1.
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF THE SELLERS
As of the date hereof and as of the Closing Date (with amendments hereto to the
extent necessary), the Sellers make the representations and give the warranties
set forth below. Each Representation and Warranty listed in this Article 6 shall
be construed as a separate representation and warranty and is given subject to
the corresponding exceptions and disclosures of the Sellers in this Agreement
and the corresponding Exhibits hereto. It is hereby acknowledged by the Parties
that the Purchaser has entered into this Agreement in reliance on the
representations made and warranties given by the Sellers as embodied in the
Representations and Warranties contained in this Article 6.
6.1 Corporate Existence, Capitalization, Ownership and Business of Holding
6.1.1 Holding is a societe anonyme organized and existing under the
laws of France having its registered office at Les Leches
Rouges, 39360 Viry, France, registered with the Commercial and
Companies Registry of Lons Xx Xxxxxxx under the number B 393
634 852. At signature, Holding's share capital is FRF
39,600,000, each share having a par value of FRF 1,000. At
Closing, Holding's share capital
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shall be FRF 53,600,000. The Holding has all the necessary
corporate power and authority to carry on its business. All of
the Shares are owned by the Sellers in the amounts and
percentages set forth in EXHIBIT 6.1.1 hereto.
6.1.2 A certified true copy of the statuts (by-laws) of Holding is
attached as EXHIBIT 6.1.2 hereto. The extract (extrait K-bis)
from the Commercial and Companies Registry of Lons Xx Xxxxxxx
with respect to Holding attached hereto as EXHIBIT 6.1.2 is
true and correct.
6.1.3 The Holding is not in a state of insolvency nor in suspension
of payments and is not subject to a judicial reorganization or
judicial liquidation proceedings under French law.
6.1.4 The Sellers have full and valid title to the Shares, the
totality of which represents the entire issued share capital
of Holding. The Shares have been issued and fully paid up and
are free and clear of liens, claims and encumbrances or other
rights in respect thereto of any other person. There are no
outstanding subscription rights, options, conversion rights,
warrants, pre-emptive rights or other agreements providing for
the purchase, issue or sale of any interests in the capital of
the Holding.
6.2 Corporate Existence, Capitalization and Ownership of the Company
6.2.1 The Company is a societe en nom collectif organized and
existing under the laws of France, having its registered
office at 0000 xxxxxx Xxxxxxx Xxxxxx, 00000 Xxxxxx, Xxxxxx,
registered with the Commercial and Companies Registry of Xxxxx
en Bresse under the number B 755 200 441, and whose capital is
FRF 125,000, each share having a par value of FRF 50.
6.2.2 A certified true copy of the statuts (by-laws) of the Company
is attached as EXHIBIT 6.2.2 hereto. The extract (extrait
K-bis) from the Commercial and Companies Registry of Xxxxx en
Bresse with respect to the Company attached hereto as EXHIBIT
6.2.2 is true and correct.
6.2.3 The Company is not in a state of insolvency nor in suspension
of payments and is not subject to a judicial reorganization or
judicial liquidation proceedings under French law.
6.2.4 At Closing, the Holding will have full and valid title to
2,499 shares in the Company, representing 99.99% of the entire
issued share capital thereof and RM Plastiques shall have full
and valid title to one share in the Company, together
representing the entire share capital of the Company. The
Company shares have been issued and fully paid up and are free
and clear of liens, claims and encumbrances or other rights in
respect thereto of any other person. There are no outstanding
subscription rights, options, conversion rights, warrants,
pre-emptive
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rights or other agreements providing for the purchase, issue
or sale of any interests in the capital of the Company.
6.3 Corporate Existence, Capitalization and Ownership of Bolle Production
6.3.1 Bolle Production is a societe a responsabilite limitee
organized and existing under the laws of France, having its
registered office at 0 xxx xx Xxxxxxxxxxxxx, 00000 Arbent,
registered with the Commercial and Companies Registry of Xxxxx
en Bresse under the number B 766 200 232, and whose equity
capital is FRF 480,000, each share having a par value of FRF
300.
6.3.2 A certified true copy of the statuts (by-laws) of Bolle
Production is attached as EXHIBIT 6.3.2 hereto. The extract
(extrait K-bis) from the Commercial and Companies Registry of
Xxxxx en Bresse with respect to Bolle Production attached
hereto as EXHIBIT 6.3.2 is true and correct.
6.3.3 Bolle Production is not in a state of insolvency nor in
suspension of payments and is not subject to a judicial
reorganization or judicial liquidation proceedings under
French law.
6.3.4 At signature of this Agreement, the Company has full and valid
title to 1,100 shares in Bolle Production, representing 68.75%
of the entire issued share capital thereof. Bolle Production
shares have been issued and fully paid up and are free and
clear of liens, claims and encumbrances or other rights in
respect thereto of any other person. At Closing, the Holding
shall have full and valid title to 1,599 shares in Bolle
Production and Bolle Protection shall have full and valid
title to one share, together representing 100% of the entire
issued share capital of Bolle Production, and there shall be
no outstanding subscription rights, options, conversion
rights, warrants, pre-emptive rights or other agreements
providing for the purchase, issue or sale of any interests in
the capital of Bolle Production.
6.4 Corporate Existence, Capitalization and Ownership of RM Plastiques
6.4.1 RM Plastiques is a societe a responsabilite limitee, organized
and existing under the laws of France, having its registered
office at 0 xxx xx Xxxxxxxxxxxxx, 00000 Arbent, registered
with the Commercial and Companies Registry of Xxxxx en Bresse
under the number B 311 811 251, and whose equity capital is
FRF 250,000, each share having a par value of FRF 125.
6.4.2 A certified true copy of the statuts (by-laws) of RM
Plastiques is attached as EXHIBIT 6.4.2 hereto. The extract
(extrait K-bis) from the Commercial and Companies Registry of
Xxxxx en Bresse with respect to RM Plastiques attached hereto
as EXHIBIT 6.4.2 is true and correct.
6.4.3 RM Plastiques is not in a state of insolvency nor in
suspension of payments and is
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not subject to a judicial reorganization or judicial
liquidation proceedings under French law.
6.4.4 At signature of this Agreement, Xxxxxx Xxxxx and Xxxxxxx Xxxxx
each hold 1000 shares in RM Plastiques, representing 100% of
the entire issued share capital thereof. At Closing, the
Holding shall have full and valid title to 1999 shares in RM
Plastiques, and Bolle Protection shall have full and valid
title to one share, together representing 100% of the entire
issued share capital thereof. RM Plastiques' shares have been
issued and fully paid up and are free and clear of liens,
claims and encumbrances or other rights in respect thereto of
any other person and there are no outstanding subscription
rights, options, conversion rights, warrants, pre-emptive
rights or other agreements providing for the purchase, issue
or sale of any interests in the capital of RM Plastiques.
6.5 Corporate Existence, Capitalization and Ownership of Bolle Protection
6.5.1 Bolle Protection is a societe a responsabilite limitee
organized and existing under the laws of France, having its
registered office at 000, xxx Xxxxxx Xxxxxxxxx, 00000
Xxxxxxxxxxxx, registered with the Commercial and Companies
Registry of Lyon under the number B 325 330 322, and whose
equity capital is FRF 1,000,000, each share having a par value
of FRF 200.
6.5.2 A certified true copy of the statuts (by-laws) of Bolle
Protection is attached as EXHIBIT 6.5.2 hereto. The extract
(extrait K-bis) from the Commercial and Companies Registry of
Lyon with respect to Bolle Protection attached hereto as
EXHIBIT 6.5.2 is true and correct.
6.5.3 Bolle Protection is not in a state of insolvency nor in
suspension of payments and is not subject to a judicial
reorganization or judicial liquidation proceedings under
French law.
6.5.4 Upon signature of this Agreement, the Company has full and
valid title to 2,500 shares in Bolle Protection, representing
50% of the entire issued share capital thereof . The Holding
has full and valid title to 1,900 shares and Xxxxxxx Xxxxx,
Franck Bolle and Xxxxxxxx Xxxxx Passaquay each have 200
shares. Upon Closing, the Company shall have full and valid
title to 2,500 shares in Bolle Protection and the Holding
shall have full and valid title to 2,500 shares in Bolle
Protection, representing together the entire issued share
capital of Bolle Protection. The Bolle Protection shares have
been issued and fully paid up and are free and clear of liens,
claims and encumbrances or other rights in respect thereto of
any other person. There are no outstanding subscription
rights, options, conversion rights, warrants, pre-emptive
rights or other agreements providing for the purchase, issue
or sale of any interests in the capital of Bolle Protection.
6.6 Corporate Existence, Capitalization and Ownership of Bolle BV
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6.6.1 Bolle BV is a limited liability company organized and existing
under the laws of the Netherlands, having its registered
office at Xxxxxxxxxxx 00X, 0000XX Xxxxxxxxxxx, and whose
authorized share capital is 200,000 xxxxxx, with an issued
share capital of 40,000 xxxxxx, each share having a par value
of 100 xxxxxx.
6.6.2 A certified true copy of the by-laws of Bolle BV is attached
as EXHIBIT 6.6.2 hereto. The extract from the Commercial and
Companies Registry with respect to Bolle BV attached hereto as
EXHIBIT 6.6.2 is true and correct.
6.6.3 Bolle BV is not in a state of insolvency nor in suspension of
payments and is not subject to a judicial reorganization or
judicial liquidation proceedings under Dutch law.
6.7 Ownership of Bolle Sunglasses Shares
The Company has full and valid title to 510 shares in Bolle Sunglasses,
representing 51% of the entire issued share capital thereof. The Bolle
Sunglasses shares owned by the Company have been issued and fully paid
up and are free and clear of liens, claims and encumbrances or other
rights in respect thereto of any other person.
6.8 Ownership of Bolle Canada Shares
The Company has full and valid title to 5,100 shares in Bolle Canada,
representing 51% of the entire issued share capital thereof. The Bolle
Canada shares owned by the Company have been issued and fully paid up
and are free and clear of liens, claims and encumbrances or other
rights in respect thereto of any other person.
6.9 Ownership of Bolle Brazil Shares
The Company has full and valid title to 71,250 shares in Bolle Brazil.
The Bolle Brazil shares owned by the Company have been issued and fully
paid up and are free and clear of liens, claims and encumbrances or
other rights in respect thereto of any other person.
6.10 Financial Statements
6.10.1 Attached hereto as EXHIBIT 6.10.1 are the unaudited profit and
loss accounts and the balance sheets and the corresponding
notes (annexes) of Holding as of April 30, 1997 and of each of
the Company and the French Subsidiaries as of December 31,
1996 (the "Financial Statements").
6.10.2 At Closing, EXHIBIT 6.10.2 will contain the audited
consolidated accounts of the Holding as of December 31, 1996
(the "Holding Financial Statements"), prepared and audited in
accordance with Article 4.1.6.
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6.10.3 The Financial Statements fairly and accurately reflect the
assets, liabilities and results of operations of the company
or companies to which they relate as of April 30, 1997 or
December 31, 1996, as stated in 6.10.1 hereabove, and have
been prepared and established in a consistent manner and in
accordance with past practice.
6.10.4 The Holding Financial Statements shall at Closing fairly and
accurately reflect the assets, liabilities and results of
operations of the company or companies to which they relate as
of December 31, 1996, and shall have been prepared and
established in accordance with French GAAP.
6.10.5 Except as shall have been disclosed or reserved against in the
Holding Financial Statements or the Financial Statements,
there are no liabilities of Bolle France secured or unsecured,
contingent or absolute, taken as a whole, other than
liabilities that would not have a Material Adverse Effect. The
Sellers, have not been notified in writing of the existence of
any threatened liabilities in the other Subsidiaries.
6.10.6 If any adjustments are made in the Holding Financial
Statements compared to the information provided in the
Financial Statements, the Purchaser and the Parent Company
hereby agree not to bring a claim under Article 9 hereto for
and in the amount of any such adjustment.
6.11 Ownership of Assets
Each of Bolle France has good and valid title to all its assets
(including real estate, if any) listed on its balance sheet as at April
30, 1997 as concerns Holding and December 31, 1996, as concerns the
Company and the French Subsidiaries, and/or acquired since January 1,
1997, subject, in the case of movable assets, to normal operations of
management, administration and use made prior to the Closing Date,
except as set forth in EXHIBIT 6.11.
6.12 Compliance with Legal Requirements
6.12.1 Except as provided in EXHIBIT 6.12.1(a), Bolle France has not
been notified by Government Authorities in the last three
years of non-compliance with applicable Laws and to the best
of Sellers' knowledge, no such notification is expected.
Except as set forth in EXHIBIT 6.12.1(b) hereto and except for
instances of non- compliance that would not have a Material
Adverse Effect, Bolle France is currently conducting its
respective businesses in compliance with all applicable Laws,
Judgments and Permits.
6.12.2 Except as set forth in EXHIBIT 6.12.2 hereto and except for
any Permit of which the failure to possess would not have a
Material Adverse Effect, Bolle France possesses all Permits
necessary to conduct its respective operations as they are
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currently being conducted and all such Permits are in full
force and effect.
Nothing in the representation and warranty set out in this
Article 6.12 is intended to address any compliance issue that
is the specific subject of any other representation and
warranty set forth in this Article 6 (such as compliance with
applicable Environmental Law).
6.13 Management of Bolle France up until the Closing Date
6.13.1 Subject to Article 6.13.2 below, there has been no Material
Adverse Effect between January 1, 1997 and the Closing Date.
6.13.2 Since January 1, 1997 and up until the Closing Date, each of
Bolle France companies have only carried out ordinary
operations falling within the scope of its respective
customary business activities and, in particular, have not
performed any disposal or acquisition of tangible or
intangible fixed assets, other than those necessary for their
normal and ordinary management, except as listed in Article
4.1.4, Annex 4.1.4 or as provided in EXHIBIT 6.13.2.
6.14 Authority Relative to this Agreement
6.14.1 The execution, delivery and performance of this Agreement by
the Sellers and the consummation of the transactions
contemplated herein do not and will not as of Closing conflict
with or result in any violation or breach or any default under
any Law, or the by-laws including breach of any of the
conditions necessary for the Permits except where such breach
would not have a Material Adverse Effect.
6.14.2 The Sellers have the full power and authority to enter into
this Agreement and to consummate the transactions contemplated
hereby.
6.15 Intellectual Property
6.15.1 Set forth in EXHIBIT 6.15.1 hereto is the list (including
where applicable the country of registration) of all the
Intellectual Property that is owned by the Company or the
Sellers except for such Intellectual Property that is to be
retained by the Sellers as provided in Article 10.2 hereafter.
6.15.2 Except as set forth in EXHIBIT 6.15.2(a), Bolle France has, to
the best of the Sellers knowledge, the right to use such
Intellectual Property and all inventions, processes, designs,
formulae, trade secrets and know-how necessary for the conduct
of the Business as presently conducted or operated without the
payment of any royalty or similar payment. To the best of the
Sellers' knowledge, except as otherwise provided in EXHIBIT
6.15.2(b), none of Bolle France is infringing any Intellectual
Property of any other person and no person is challenging or
infringing the Intellectual Property owned by Bolle France or
Bolle France's right to use the
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Intellectual Property presently used by them in the Business
except as provided in EXHIBIT 6.23 (Disputes).
6.15.3 Except as provided in EXHIBIT 6.15.3(a), the Intellectual
Property set forth in EXHIBIT 6.15.1 is validly registered or
filed pending registration in the name of the Holding or the
Company or the Sellers, as sole proprietor in the
jurisdictions indicated in EXHIBIT 6.15.1. Any Intellectual
Property set forth in EXHIBIT 6.15.1, which is in the Sellers
name except for such Intellectual Property that is to be
retained by the Sellers as provided in Article 10.2 hereafter,
shall be transferred to the Purchaser as soon as possible
after the Closing Date. EXHIBIT 6.15.3(b) provides a letter
concerning the transfer of all proprietary non-registered
copyrights on designs and models owned by the Sellers. To the
best of the Sellers' knowledge, the Intellectual Property is
free from all pledges, liens, claims, options, leases,
disputes, restrictions or other encumbrances. Sellers are not
aware of any proceedings which would result in registration
being lost or invalidated.
6.15.4 Set forth in EXHIBIT 6.15.4(a) hereto is a list of the moulds
that the Company presently owns and set forth in EXHIBIT
6.15.4(b) hereto is a list of the moulds that the Company
presently has in its possession or control but that are owned
by third parties.
6.15.5 Neither Holding nor the Company has granted, to any third
party, the right or license to use any of the Intellectual
Property owned by the Company or the Sellers, nor is either or
them a licensee of any Intellectual Property except as listed
in EXHIBIT 6.15.5 hereto.
6.16 Taxation
6.16.1 Except as set out in EXHIBIT 6.16.1, all Tax returns required
to be filed by Bolle France with the tax authorities of the
appropriate jurisdiction have been filed and all Tax required
to be paid by Bolle France either, in the case of Tax due and
payable prior to the date hereof, has been paid, or, in the
case of Tax due prior but payable after the date hereof, has
been properly reserved against in the Holding Financial
Statements or in the Financial Statements relating to each of
the Holding (as of April 30, 1997) and the Company or the
French Subsidiaries (as of December 31, 1996), except as
concerns any Tax liability relating to earnings or operations
in calendar year 1997.
6.16.2 Except as concerns the audit the Company and the Holding is
presently undergoing concerning the fiscal years 1994, 1995
and possibly 1996, to the best of the Sellers' knowledge,
there are no pending or threatened audits or investigations
relating to Taxes which would result in a liability for Taxes
for which any of Bolle France would be liable.
6.17 Material Contracts
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6.17.1 Set forth in EXHIBIT 6.17.1 hereto is a list of the written
contracts and guarantees in force and effect on the date
hereof connected with the business of Bolle France under which
the obligations of either party thereto are five hundred
thousand French Francs (FRF 500,000) or more in a period of
twelve consecutive (12) months or with more than 6 months
prior notice for termination (the "Material Written
Contracts").
6.17.2 Except as set forth in EXHIBIT 6.17.2 hereto, or as concerns
Material Written Contracts the termination of which would not
have a Material Adverse Effect, the execution, delivery and
performance of this Agreement and the performance of the
covenants contemplated herein do not grant the co-contracting
party the right to terminate such Material Written Contract or
accelerate payment of any debt.
6.17.3 Set forth in EXHIBIT 6.17.3 is a description of the principal
terms of the most significant oral agreements connected with
the business of the Company under which the obligations of
either party thereto are five hundred thousand French Francs
(FRF 500,000) or more in a period of twelve consecutive (12)
months ("the Material Oral Contracts") .
6.18 Products
To the best of the Sellers' knowledge, the products manufactured by the
Company and distributed by Bolle France are in compliance with the
applicable Laws, except where failure to be in compliance would not
have a Material Adverse Effect and except as provided in EXHIBIT
6.18(a) hereto. To the extent that Bolle France distributes the
products directly to third parties other than Subsidiaries in foreign
territories, to the best of the Sellers's knowledge, such products are
in compliance with the applicable local laws, except as provided in
EXHIBIT 6.18(b).
Except for any condition, warranty, representation or obligation
implied by Law, none of Bolle France has given any other condition or
warranty, or made any representation in respect of the quality of goods
or services supplied or agreed to be supplied by it except as provided
in EXHIBIT 6.18(c) hereto.
Except as set forth in EXHIBIT 6.18(d) hereto, there have been no
product recalls, stop sales or withdrawals of defective products of
Bolle France by any of Bolle France since January 1, 1996.
6.19 Insurance Policies
All the insurance policies in force in relation to the Business and
assets of any of Bolle France and subscribed to by any of them, full
and complete copies of which have previously been made available to the
Purchaser (the "Insurance Policies") are listed in EXHIBIT 6.19(a) and
is consistent with past practice. All such policies are currently in
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effect and all premiums currently due have been paid and no notice of
termination, or intention to terminate such policies have been
received, except as provided in EXHIBIT 6.19(b).
There are no circumstances, including, without limitation, the
execution and performance by the Sellers of this Agreement, which, to
the best of Seller's knowledge, would lead to any liability under the
Insurance Policies being avoided by the insurers or the premium being
increased and there is no claim outstanding under any of the Insurance
Policies nor are the Sellers aware of any circumstances likely to give
rise to a claim except as provided in EXHIBIT 6.19(c) or as
specifically mentioned in EXHIBIT 6.23 (Disputes).
6.20 Leases on Real Property
The list of all leases related to real property used by Bolle France is
attached in EXHIBIT 6.20 hereto. All of such leases are in full force
and effect, and, such leases are in compliance with the applicable Law.
6.21 Labor Agreements and Employee Related Payments
6.21.1 EXHIBIT 6.21.1, provides the list of all of the full-time
employees and part-time employees of the Company and the
French Subsidiaries respectively employ as of April 1, 1997.
EXHIBIT 6.21.1 sets out for each one of them: their date of
birth, date of commencement of employment, job title and
classification, all the elements of their remuneration and all
benefits.
6.21.2 No employees or agents working for the Company or the French
Subsidiaries receive a compensation proportional to profits or
turnover except as concerns the commercial agents and sales
representatives in France and foreign countries compensated
based on their own sales, and except as provided in EXHIBIT
6.21.2.
6.21.3 No group dismissals are currently in progress among their
respective employees.
6.21.4 Neither the Company nor the French Subsidiaries have
experienced any strike, business interruption, labor
disturbance or collective labor controversies (trade union or
work council) of any nature in the last five years, and at the
Closing Date, the Sellers have not been notified of any such
matters.
6.21.5 All social charges on compensation paid to employees which
must be withheld under the law, and all payments to the
relevant authorities have been made.
6.21.6 In the three years up to the Closing Date, neither the Sellers
nor any of Bolle France have received any direct notification,
demand or complaint made by any governmental, administrative,
regulatory authority or agency or any employee or group of
employees requiring the implementation of a profit sharing
scheme and/or the establishment of any employee representative
body (including, without
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limitation, a workers or health and safety committee) whether
at the level of the Company or any of the French Subsidiaries.
The Sellers have not been notified that any such direct
notification, demand or complaint will be made following
execution of this Agreement and the subsequent change in
control of the Bolle Group.
6.22 Agents and Brokers
Except for the appointment of Rothschild Inc. by the Sellers, neither
the Sellers, nor any of Bolle France have engaged, or caused to be
incurred any liability to any finder, broker or sales agent in
connection with this Agreement or the transactions contemplated hereby.
6.23 Disputes
Except as set forth in EXHIBIT 6.23, there is no Proceeding pending or,
to the best knowledge of the Sellers, threatened, against any of Bolle
France that, if adversely determined would have a Material Adverse
Effect.
6.24 Environment and Safety
Except as set forth in EXHIBIT 6.24 or, where the failure to have the
same or to comply therewith would not have a Material Adverse Effect,
6.24.1 The Company has all Permits required by Environmental Law (and
is in compliance with the terms and conditions thereof);
6.24.2 The Company is not the subject of any court or administrative
order nor has it received notice of any events, conditions or
incidents relating to non-compliance with Environmental Laws
which may give rise to any liabilities thereunder or which may
otherwise form the basis of any claim, action, proceeding or
investigation pursuant thereto;
6.24.3 The Company has filed all reports required to be filed under
the Environmental Laws with any Governmental or other agency
on or before the date hereof;
6.24.4 The plant and machinery used by the Company is in compliance
with French Laws relating to health and safety and in
particular Decree n(degree) 93-40 of January 11, 1993.
6.25 Reorganization of Bolle France
Bolle France has been reorganized in the manner reflected in EXHIBIT
6.25 hereto. Such reorganization was carried out in accordance with the
applicable Laws.
6.26 Investment Intent
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Each of Sellers is an "accredited investor" as defined in Regulation D
under the Securities Act of 1933. Each of Sellers acknowledge that the
Warrants, the Common Stock, the Preferred Stock and the Deferred
Payment Preferred Stock have not been registered under the Securities
Act of 1933 or any other United States or foreign securities laws and
that they are acquiring the same for their own account and not with a
view to, or for resale in connection with, any distribution of such
Warrants, Common Stock, Preferred Stock or the Deferred Payment
Preferred Stock.
ARTICLE 7 REPRESENTATION AND WARRANTIES BY THE PURCHASER
The Purchaser makes the representations and gives the warranties set forth
below, as of the date hereof and as of the Closing Date.
7.1 Organization and existence
The Purchaser is a corporation duly organized and validly existing
under the laws of the state of Delaware, United States of America.
Purchaser is duly qualified to do business and is in good standing in
each jurisdiction in which the failure to be so qualified would have a
material adverse effect on the ability of the Purchaser to perform its
obligations under this Agreement.
7.2 Authority Relative to this Agreement
7.2.1 The execution, delivery and performance of this Agreement and
the Related Agreements by the Purchaser and its performance of
the covenants herein contemplated do not and will not conflict
with or result in any violation or breach or any default under
any law, the by-laws or any other obligation of the Purchaser
under any agreement or other instrument to it is a party or by
which it may be bound or affected. There is no litigation or
proceeding involving the Purchaser which could prevent or
hinder their execution and performance under this Agreement.
7.2.2 The Purchaser has the full corporate or individual power,
authority and right to enter into this Agreement and to
consummate the transactions contemplated hereby. The
Purchaser's board of directors and its shareholders have taken
all necessary corporate action to duly authorize the
execution, delivery and performance of this Agreement.
7.2.3 The Purchaser will, prior to Closing Date, have obtained all
requisite consents, approvals, authorizations or regulatory
authority in connection with the execution and performance of
this Agreement and the Related Agreements and the issuance of
the Preferred Stock and the Common Stock by the Purchaser, and
no other consents, approvals, authorizations or regulatory
authorities shall be required to
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be obtained by the Purchaser, whether at a national or local
level, nor shall any other filing shall be required to be made
by the Purchaser, other than the administrative declaration to
be made with the French Direction du Tresor.
7.2.4 The Purchaser acknowledges that itself and its advisers have
already had access to the senior management and the industrial
sites of Bolle France as well as to all the documents
concerning Holding, the Company and the Subsidiaries, as
listed in the "Data Room List" attached as EXHIBIT 7.2.4
hereto. The Purchaser has such knowledge of Bolle France as it
deems necessary to enter into this Agreement. In particular,
the Purchaser is not relying on any representations and
warranties of the Sellers except those set forth in Article 6
above.
7.3 Common Stock
At Closing, the Common Stock shall be duly authorized, validly issued,
fully paid, free of preemptive rights and no personal liability will
attach to the ownership thereof, and will constitute valid and legally
binding obligations of the Purchaser.
7.4 Deferred Payment Preferred Stock/Bolle Inc. Certificate of Designations
As of the Closing, the Deferred Payment Preferred Stock shall have been
duly authorized for issuance and will be validly issued and delivered
to the Sellers and fully paid and non-assessable and free of preemptive
rights. No personal liability will attach to the ownership thereof.
The Bolle Inc. Certificate of Designations has been duly filed with the
appropriate Government Authorities.
ARTICLE 8 REPRESENTATION AND WARRANTIES BY THE PARENT COMPANY
The Parent Company makes the representations and gives the warranties set forth
below, as of the date hereof and as of the Closing Date.
8.1 Organization and existence
The Parent Company is a corporation duly organized and validly existing
under the laws of the state of Delaware, United States of America and
qualified to do business therein.
8.2 Authority Relative to this Agreement
8.2.1 The execution, delivery and performance of this Agreement and
the Related Agreements by the Parent Company and its
performance of the covenants herein contemplated do not and
will not conflict with or result in any violation or breach or
any default under any law, the by-laws or any other obligation
of the Parent
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Company under any agreement or other instrument to it is a
party or by which it may be bound or affected. There is no
litigation or proceeding involving the Parent Company which
could prevent or hinder their execution and performance under
this Agreement.
8.2.2 The Parent Company has the full corporate power, authority and
right to enter into this Agreement and the Related Agreements
and to consummate the transactions contemplated hereby and
thereby. The Parent Company's board of directors and its
shareholders have taken all necessary corporate action to duly
authorize the execution, delivery and performance of this
Agreement and the Related Agreements.
8.2.3 The Parent Company will, prior to Closing Date, have obtained
all requisite consents, approvals, authorizations or
regulatory authority in connection with the execution and
performance of this Agreement and the Related Agreements by
the Parent Company, and the issuance of the Warrants and the
Preferred Stock, and no other consents, approvals,
authorizations or regulatory authorities shall be required to
be obtained by the Parent Company, whether at a national or
local level, nor any other filing shall be required to be made
by the Parent Company, other than the administrative
declaration to be made with the French Direction du Tresor.
8.2.4 The Parent Company acknowledges that itself and its advisers
have already had access to the management and the industrial
sites of Bolle France as well as to all the documents
concerning Holding, the Company and the Subsidiaries as listed
in the "Data Room List" attached as EXHIBIT 7.2.4 hereto. The
Parent Company has such knowledge of Bolle France as it deems
necessary to enter into this Agreement and the Related
Agreements. In particular, the Parent Company is not relying
on any representations and warranties of the Sellers except
those set forth in Article 6 above.
8.3 SEC Reports
The Parent Company has timely filed all forms, reports and documents
(collectively, "SEC Documents") with the Securities and Exchange
Commission of the United States of America ("SEC") required to be filed
by it pursuant to the United States Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder (the "Securities
Act"), and the United States Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the
"Exchange Act") (collectively, the "SEC Reports"), all of which have
complied, at the time filed, in all material respects with all
applicable requirements of the Securities Act and Exchange Act, as
applicable. None of such SEC Reports, at the time filed, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
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8.4 Warrants
The Warrants have been duly authorized and, when issued and delivered
pursuant to this Agreement and the Warrant Agreement, will have been
duly executed, issued and delivered and will constitute valid and
legally binding obligations of the Parent Company enforceable in
accordance with their terms. The shares of common stock of the Parent
Company issuable upon exercise of the Warrants have been reserved for
issuance upon exercise of the Warrants and when issued in accordance
with the terms of the Warrants will be duly authorized, validly issued,
fully paid and nonassessable and free of preemptive rights and no
personal liability will attach to the ownership thereof.
8.5 Preferred Stock/BEC Certificate of Designations
As of the Closing, the Preferred Stock shall have been duly authorized
for issuance and will be validly issued and delivered to the Sellers
and fully paid and non-assessable and free of preemptive rights. No
personal liability will attach to the ownership thereof.
The BEC Certificate of Designations has been duly filed with the
appropriate Government Authorities.
8.6 No Material Adverse Change
Since the date of the balance sheet included in the Parent Company's
most recently filed SEC Documents, the Parent Company has conducted its
business in the ordinary course and there has not occurred: (a) any
material adverse change in the financial condition, liabilities, assets
or business of the Parent Company, (b) any amendment or change in the
Certificate of Incorporation or Bylaws; or (c) any damage to,
destruction, or loss of any assets of the Parent Company, (whether or
not covered by insurance) that materially and adversely affects the
financial condition or business of the Parent Company.
8.7 Litigation
There is no action, suit, proceeding, claim, arbitration or
investigation pending, or as to which the Parent Company has knowledge,
against the Parent Company which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay any of the transactions
contemplated by this Agreement or the Related Agreements or that would
result in a material adverse change in the business, assets (including
intangible assets), financial condition, prospects or results of
operations of the Parent Company.
8.8 Compliance with Laws
The Parent Company has complied in all material respects with, is not
in material violation of, and has not received any notices of violation
with respect to, any foreign, U.S. federal, state or local statutes,
law or regulation.
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ARTICLE 9 INDEMNIFICATION BY THE SELLERS
9.1 Indemnification by Sellers
9.1.1 Subject to the limitations herebelow, the Sellers shall fully
reimburse and indemnify the Purchaser for any expense, damage,
loss or liability, arising from any breach of any
Representation or Warranty, commitment or undertaking made by
the Sellers contained herein or in any Exhibit hereto
(including all reasonably incurred related expenses. Such
indemnification shall occur as follows:
(a) In the event of any expense, damage, loss or liability
being sustained or incurred by the Purchaser as a
result of breach of the Representations and Warranties
contained herein or in any Exhibit hereto, and not
resulting in an Additional Liability (as defined
below), the Sellers shall pay to the Purchaser,
damages equal to the expense, damage, loss or
liability suffered by the Purchaser as a result of
such breach.
(b) In the event of any expense, damage, loss or liability
borne or to be borne by any of Bolle France
(hereinafter collectively referred to as "Additional
Liabilities") arising out of an event, transaction,
occurrence or claim relating to the period prior to
the Closing Date, which was not disclosed pursuant
hereto or recorded by Bolle France in their respective
Financial Statements prior to the Closing Date, or
reserved in the Financial Statements, the Sellers
shall pay to the Purchaser the full amount of such
Additional Liabilities on the dates on which such
amounts actually suffered become due and payable by
the Company or such French Subsidiary.
9.1.2 From and after the Closing, the right to indemnification
provided for in this Section 9.1 shall be Purchaser's
exclusive remedy for any breach of a Representation or
Warranty, commitment or undertaking, except as provided in
Articles 10.4.5 and 12.4.
9.1.3 The liability of any Seller under 9.1.1 shall be limited to
that proportion of any indemnification that may be due as is
equal to the proportion that the Shares owned by such Seller
bears to the total number of shares of Holding on the date
hereof. In the case that a particular Representation or
Warranty, commitment or undertaking is made by only one or a
group of specified Sellers, then only such Seller or Sellers
shall be responsible for indemnifying the Purchaser for a
breach related thereto.
9.2 Indemnification by Purchaser and the Parent Company
9.2.1 The Purchaser and the Parent Company shall fully reimburse and
indemnify the Sellers for any expense, damage, loss or
liability, arising from any breach of any
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representation or warranty, commitment or undertaking made by
the Purchaser or the Parent Company contained herein or in any
Exhibit hereto (including all reasonably incurred related
expenses.
9.2.2 Except for Purchaser's obligations as concerns claims in
respect of breach of the representations and warranties
contained in Articles 7.1 and 8.1, the Purchaser shall have no
obligation unless the aggregate claim amount for the indemnity
under this Article 9 shall exceed 1% of the Purchase Price,
taking all claims together, and the Purchaser shall be liable
only for sums exceeding this amount. Individual claims of one
hundred fifty thousand French Francs (FRF 150,000) shall not
be taken into account in calculating the aggregate claim, and
the Purchaser shall have no liability therefor unless the
aggregate amount of such claims amounts to more than 600,000
FRF. In no event shall the total amount payable by the
Purchaser pursuant to this Article 9 exceed 30% of the portion
of the Purchase Price, excluding the Warrants, which has been
received in cash including such net cash received from the
exercise of the Warrants.
9.2.3 From and after the Closing, the right to indemnification
provided for in this Section 9 shall be the Sellers' exclusive
remedy for any such material breach of representation or
warranty, covenant or agreement.
9.3 Limitations
The indemnification contained in this Article 9 is subject to the
following limitations:
9.3.1 A claim shall not be made with respect to that part of a
liability or a loss that has its cause or origin in, or with
respect to any part of a liability or a loss that is increased
by, a change in the accounting principles or methods as such
have been consistently applied in the Financial Statements or
applied in the Holding Financial Statements prior to the
Closing Date, for example, the application of U.S. accounting
principles, or a change post-Closing in the laws or
regulations applicable to Holding, the Company, the
Subsidiaries or the Purchaser.
9.3.2 Liabilities or losses which are tax deductible from the
results of Holding, the Company or the Subsidiary, or the
Purchaser, respectively, shall be taken into account for their
amount reduced by the net tax saving resulting from the
deduction of the loss or liability when used for the benefit
of Holding, the Company or the Subsidiaries, or the Purchaser,
respectively, during the guarantee period as provided in
Article 9.3.9 herebelow.
9.3.3 For Tax matters, liabilities or losses as described in
Articles 6.16 and 6.21, that only result in a charge being
deferred (for instance, but without being limited to the
following, a reassessment by the relevant authorities of
depreciation allowances or reserves) will not be taken into
account, except for penalties or interest for late payment,
and any corresponding additional financing cost, incurred by
Bolle France or the Purchaser.
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9.3.4 Any liability incurred by any of Bolle France shall be set off
against a decrease in the amount of the liabilities, resulting
from the recapturing of reserves and/or provisions ("reprise
de provisions") booked in the Financial Statements or the
Holding Financial Statements relating to events having their
origin prior to the Closing Date provided that no recapturing
of reserves and/or provisions shall be allowed if such
recapture has its cause or origin in or is increased by, a
change in the accounting principles or methods from the
principles or methods applied in the Financial Statements or
the Holding Financial Statements prior to the Closing Date.
9.3.5 Except for the Sellers' obligations as concerns claims in
respect of breach of the Representations and Warranties
contained in Articles 6.1, 6.2, 6.3, 6.4, and 6.5 hereabove
which shall not be limited as provided hereafter in this
Article 9.3.5, the Sellers shall have no obligation unless the
aggregate claim amount for the indemnity under this Article 9
shall exceed 1% of the Purchase Price, taking all claims
together, and the Sellers shall be liable only for sums
exceeding this amount. Individual claims of less than one
hundred fifty thousand French Francs (FRF 150,000) shall not
be taken into account in calculating the aggregate claim, and
the Sellers shall have no liability therefor unless the
aggregate of such claims amounts to more than 600,000 F. In no
event shall the total amount payable by the Sellers pursuant
to this Article 9 exceed 30% of the portion of the Purchase
Price, excluding the Warrants, which has been received in cash
including such net cash received from the exercise of the
Warrants. If a claim has only been partially paid by Sellers
due to the fact that the Purchase Price has not yet been
totally paid in cash to the Sellers and should additional
portions of the Purchase Price be received in cash after the
partial payment of such claim the following shall apply: the
remaining portion of the claim shall be paid out of the
subsequent cash received by the Sellers, as long as such
remaining portion of the claim together with all other claims
pursuant to this Article 9 remain within the total limit of
the 30% of the portion of the Purchase Price received in cash,
as provided hereabove.
9.3.6 Notwithstanding Article 9.3.5 hereabove, the Sellers hereby
agree to indemnify the Purchaser in full against any liability
for Tax due by Bolle France in respect of the period up to the
Closing Date, except as concerns any Tax liability related to
the earnings or operations in calendar year 1997 insofar as
such Tax has not been paid or is not fully provided for in the
Holding Financial Statements; it being expressly agreed that
the reserve of 5.050 million FRF, as detailed in the Holding
Financial Statements Note 9, shall be excluded for the
purposes of determining the Sellers indemnification obligation
hereunder.
9.3.7 The Sellers shall have no liability as concerns any claims
which directly originate in or have been increased by a fault
or negligent act of Bolle America.
9.3.8 A claim shall not be enforceable against the Sellers, if legal
proceedings related thereto are not begun within six (6)
months after the Sellers have been notified by
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the Purchaser in writing, nor if the claim would not have
arisen but for an omission or act of the Purchaser after
Closing, other than one required to be taken pursuant to laws
or regulations applicable as of Closing, or due to regulations
or laws which came into effect after Closing.
9.3.9 The liability of the Sellers under the indemnification in this
Article 9 shall expire for all undeclared claims and/or
undeclared potential claims hereunder on the second
anniversary of the Closing Date, except that liability of the
Sellers under the indemnification in this Article 9 shall
expire for all environmental claims and/or undeclared
potential environmental claims hereunder on the third
anniversary of the Closing Date and all undeclared claims
and/or undeclared potential claims for additional liabilities
relating to Taxes shall expire when the statute of limitations
has run on such additional liabilities (but no later than
December 31, 2004).
9.3.10 Any indemnification payment required by this Article 9 shall
be reduced by the amount of any benefit attributable to any
Tax refund or reduction (including any Tax credit), insurance
payment or other third-party indemnification payment actually
received by Holding, the Company or the Subsidiaries, less any
litigation and other costs related to collection of such
amounts. In the event that an indemnification payment is made
by the Sellers and the Holding, the Company or the
Subsidiaries thereafter receives an insurance or
indemnification payment, the Purchaser shall pay over to the
Sellers the amounts so collected, less any litigation and
other costs related to collection of such amounts.
9.4 Notification of Breach/Third Party Claims
9.4.1 The Purchaser shall notify the Sellers within 45 calendar days
from becoming aware of any event which is likely to constitute
a claim under this Agreement provided, however, that if the
Purchaser does not respect such notice period, as long as the
Sellers are notified within the period provided in Article
9.3.9 hereabove, it shall continue to benefit fully from the
indemnification provided for hereunder, and shall indemnify
the Sellers for any increased loss, that the Sellers have
suffered as a result of the non-respect of such notice period.
9.4.2 In the event of a claim by a third party which may give rise
to an obligation of one party ("the Indemnifying Party") to
pay an indemnity to the other party ("the Indemnified Party")
(or to effect a settlement in relation thereto), the
Indemnified Party hereby agrees that the Indemnifying Party
(and its insurers) shall be given the opportunity at its own
expense to challenge, defend or settle such claim(s), provided
that the Indemnified Party may participate in such procedure
at any time. To this end, the Indemnified Party shall place
all registers and files concerning any claim at the disposal
of the Indemnifying Party, their attorneys and chartered
accountants. The Parties further undertake to provide each
other with all assistance which could reasonably be required
in connection with the defense of such claims.
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ARTICLE 10 COVENANTS
The Parties agree that the following activities will be carried out in
the manner stated below.
10.1 Commissions
Except as concerns legal and accounting services, the Parties
acknowledge that, except for Rothschild Inc. on behalf of the Sellers,
no person, firm or corporation has been employed or retained to
represent either party in the transactions contemplated by this
Agreement. The fees associated with the services provided by Rothschild
Inc. and the Sellers' legal and accounting services shall be borne
exclusively by the Sellers and not charged to the Holding or the
Company.
10.2 Retained Intellectual Property Rights
10.2.1 The Intellectual Property owned by the Bolle Group or the
Sellers, as listed in EXHIBIT 6.15.1 or mentioned in EXHIBIT
6.15.2(A), will be included in the Bolle Group at Closing,
excluding those trademarks that represent the following
classes or products:
(a) Soaps, perfumery, essential oils, cosmetics, hair
lotions, dentifrices (toothpaste), which corresponds
to certain products included in International Class 3;
(b) Xxxxx, and brushes which corresponds to certain
products included in International Class 21;
(c) Games, toys and playthings, which corresponds to
certain products included in International Class 28;
(d) Tobacco, smoking articles, matches included in
International Class 34 provided, however, that the
Sellers shall not make or use any registration in this
class that would jeopardize the use by the Bolle Group
of its Intellectual Property pursuant to provisions of
applicable laws.
10.2.2 Trademarks concerning the above mentioned products shall be
transferred to the Sellers at Closing or as soon as possible
thereafter and after Closing, the Purchaser, and the Parent
Company, shall not and shall cause the Bolle Group not to
register trademarks using the "Bolle" name in such classes for
the above mentioned products. The Sellers shall be responsible
for all procedures relating to the registration of such
transfers and shall pay all costs, duties and expenses
relating to the registration of such transfers.
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10.2.3 In countries where the international classification mentioned
above is not used, the Sellers shall retain the exclusive
right to register the "Bolle" name in the equivalent of such
classes for the above mentioned products. In countries where
it is not possible to register only for a portion of a
particular class of products, the Purchaser or the Parent
Company shall register trademarks using the "Bolle" name in a
particular class, at the request of the Sellers, but provide
the Sellers with a royalty free, exclusive, perpetual right to
use such trademarks for the above mentioned products. The
Sellers shall pay all related third-party costs concerning
such registration.
10.3 Insurance
The Purchaser shall be responsible for assuring that all insurance
policies which terminate upon Closing have been replaced with
equivalent policies which take effect upon Closing.
10.4 Non-Competition/Non-Solicitation
Each of the individual Sellers listed in 10.4.3 herebelow severally
undertakes to the Purchaser to comply with the non-competition and
non-solicitation obligations provided in 10.4.1 and 10.4.2 for the
period specifically provided for such individual Seller in Article
10.4.3 herebelow:
10.4.1 Not to, directly or indirectly, either as individuals nor
under the veil of a company, manage or carry on or otherwise
conduct a business or invest in a business or other entity in
competition with the Business however, (i) the fulfilment by
Xxxxxxx Xxxxx, Xxxxxxxx Xxxxx Passaquay, Franck Bolle and
Xxxxxxxx Xxxxx of their obligations under their respective
Employment Agreements, for so long as such person is employed
by the Company or any Subsidiary or any company otherwise
affiliated with the Company, and (ii) the holding by them of
the Warrants shall not be considered to be a breach of the
terms of this Section 10.4.1. However, the Purchaser
acknowledges and accepts that until Closing, Xxxxxxx and
Xxxxxx Xxxxx will remain members of the board of directors of
the Groupe RG and Franck Bolle is a member of the board of
directors of Moderne Optic. Each of them undertakes to resign
from such positions prior to Closing.
10.4.2 Not to directly or indirectly hire or offer to hire any
person, who, during the period of 12 months prior to the
Closing Date was an employee of any of Bolle France occupying
a senior managerial position.
10.4.3 The non-competition obligation in 10.4.1 and 10.4.2 hereabove
shall apply to each Seller listed herebelow from Closing for
the period here provided:
(a) For Franck Bolle, Xxxxxxxx Xxxxx Passaquay and
Xxxxxxxxxx Xxxxx, for four (4) years following
Closing;
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(b) For Xxxxxxx Xxxxx and Xxxxxx Xxxxx, for three (3)
years following Closing;
(c) For Xxxxxxxx Xxxxx for two (2) years following
Closing.
10.4.4 Should Xxxxxxx Xxxxx, Xxxxxxxx Xxxxx, Xxxxxx Xxxxx or Xxxxxxxx
Xxxxx be dismissed from their employment with the Company for
any reason other than for gross or wilful misconduct ("faute
grave ou lourde"), then the above mentioned non-competition
obligation shall immediately cease to apply as concerns such
person.
10.4.5 The restrictions and obligations set forth in 10.4.1 and
10.4.2 above are considered fair and reasonable by the
Parties. Each of the individual Sellers acknowledges that the
Purchaser and the Company would be harmed and that monetary
damages would not provide an adequate remedy in the event of
breach of the provisions of 10.4.1 and 10.4.2. Accordingly,
each of the individual Sellers agrees that, in addition to any
other remedies available to the Purchaser and/or the Company,
the Purchaser and/or the Company shall be entitled to seek the
appropriate injunctive relief to secure enforcement of these
provisions.
ARTICLE 11 TERMINATION
11.1 Grounds for Termination
This Agreement may be terminated at any time prior to the Closing Date:
11.1.1 By the written agreement of each of Purchaser, the Parent
Company and the Sellers;
11.1.2 By either Purchaser, the Parent Company or the Sellers if the
Closing shall not have occurred on or prior to July 21, 1997,
unless such eventuality shall be due to the breach by the
party seeking to terminate this Agreement of any of the
representations, warranties, covenants or agreements herein to
be performed or observed by such party prior thereto.
11.2 Effect of Termination
11.2.1 The Deposit will not be refunded to the Parent Company if the
Parent Company withdraws from the Closing, unless the Parent
Company provides written proof that such failure to proceed
results from:
(a) differences corresponding to a loss of value of Bolle
France of more than Fifteen million French Francs (FRF
15,000,000), between signature hereof and the Closing
Date;
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(b) that the business has not been run consistently with
past practice and there has been a material adverse
change in the business between January 1, 1997 and the
Closing, except as provided in Article 4.1.4 and Annex
4.1.4, Article 6.13 and the Exhibit thereto, or
(c) that there are material undisclosed off balance sheet
liabilities, except as specifically listed in an
exhibit herein.
11.2.2 If the Sellers withdraw from the transaction without cause,
then up to three hundred thousand U.S. dollars (US $ 300,000),
all taxes included, of the Parent Company's legal and
accounting due diligence expenses will be reimbursed, subject
to appropriate documentation of such expenses, in addition to
the return of the Deposit without delay. For the purposes of
this Agreement, cause for withdrawal shall include, but not be
limited to, the inability of the Parties, after good faith
discussions, consistent with normal business practice, to
agree on the terms of the Agreement and the Related
Agreements.
11.2.3 Except as provided in Articles 11.2.1 and 11.2.2 hereabove, if
this Agreement is terminated as permitted under Section 11.1,
such termination shall be without liability to any party to
this Agreement or any Affiliate, shareholder, director,
officer or representative of such party, except for liability
arising from a wilful breach of this Agreement.
ARTICLE 12 CONFIDENTIALITY
12.1 Each of the Purchaser and the Parent Company hereby undertakes and
agrees not to, and agrees to cause its directors, officers, employees
and agents not to use or reveal to any third party the information
contained in the Data Room as well as any trade secret, know how,
process, technique, list of customers or other confidential
information, including sponsorship agreements, with respect to Holding,
the Company, or the Subsidiaries, in conformity with the terms of the
Confidentiality Agreement and Article 5 (d) of the Letter of Intent.
12.2 Except in the ordinary course of their employment or engagement with
the Bolle Group and except as required by Law, each of the Sellers
hereby undertakes and agrees not to disclose to third parties any
non-public, confidential or proprietary information concerning Bolle
France including commercial, financial, technical and/or legal data and
information, business secrets, and know-how, concerning the products,
the organization, the development strategy, customer lists, commercial
partners or more generally the current business of Bolle France.
12.3 Subject to any applicable legal requirements to the contrary (and in
particular the requirements of the New York Stock Exchange, on which
the Purchaser's ultimate parent company is listed) and which have been
notified in advance to the Sellers:
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12.3.1 the Purchaser and the Sellers hereby undertake to hold in
confidence and not to disclose to third parties (except to
professional advisors of the Parties hereto), without the
prior written consent of the other, the terms and conditions
of the transaction contemplated hereby, and
12.3.2 all announcements by or on behalf of the Parties hereto
relating to the transaction contemplated hereby shall be in
terms to be agreed by the Parties.
12.4 The restrictions and obligations set forth in 12.1, 12.2, and 12.3
above are considered fair and reasonable by the Parties. Each Party
acknowledges that the other Parties would be harmed and that monetary
damages would not provide an adequate remedy in the event of breach of
the provisions of 12.1, 12.2, and 12.3. Accordingly, each Party agrees
that, in addition to any other remedies available to the other Parties,
such other Parties shall be entitled to seek the appropriate injunctive
relief to secure enforcement of these provisions.
12.5 If for any reason, the transaction contemplated hereby does not occur,
the rights and liabilities of the Parties pursuant to Articles 12.1 and
12.3 shall remain binding upon the Parties.
ARTICLE 13 GUARANTEE BY THE PARENT COMPANY
13.1 In consideration of the sale of the Shares and the property described
in Article 3.3 herein by Sellers to Purchaser, the Parent Company
hereby irrevocably guarantees to the Sellers, their successors and
permitted assigns, as primary obligor (jointly and severally with
Purchaser) the full, complete and prompt performance of each and every
obligation of Purchaser to the Sellers under this Agreement.
13.2 The guarantee set forth in Article 13.1 is a continuing security and
shall remain in full force and effect until all moneys now or hereafter
payable by and all obligations and liabilities of Purchaser have been
satisfied in full notwithstanding the liquidation, administration or
other incapacity or any change in the constitution of Purchaser.
13.3 The guarantee set forth in Article 13.1 is in addition to and shall not
merge with or otherwise prejudice or affect any other right or remedy,
guarantee or indemnity provided for under this Agreement or by law and
may be enforced notwithstanding the same.
ARTICLE 14 GOVERNING LAW, JURISDICTION
14.1 This Agreement, including, but not limited to, the validity,
interpretation, performance, effects, derivatives and consequences
thereof, will be governed by the laws of the French Republic (excluding
its conflicts of law principles).
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14.2 The Parties agree to use their best efforts in order to reach an
amicable agreement with respect to all disagreements which might arise
from the application of this Agreement. All disputes arising under this
Agreement which are not settled amicably as specified above within a
sixty (60) day period shall be finally settled under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce
by one or more arbitrators appointed in accordance with said rules. The
arbitration shall take place in Geneva Switzerland. The appointed
arbitrators shall be fluent in French and in English.
ARTICLE 15 MISCELLANEOUS
15.1 Notices
Any notification or communication pursuant to this Agreement shall be
made by registered letter with return receipt requested, or by
facsimile transmission confirmed by registered letter with return
receipt requested, or by hand against signature of a duplicate of the
notification by a duly authorized person, addressed in the case of the
Purchaser as follows:
Bolle Inc.
000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, Xxx Xxxx 00000
XXX
Attention: Xx. Xxxxxx X. Xxxxxxxx
Facsimile No.: (1) (000) 000-0000
and
BEC Group, Inc.
000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, Xxx Xxxx 00000
XXX
Facsimile No.: (1) (000) 000-0000
with copy to:
Xxxxxxx Xxxxxxx
Xxxxxxx, Dunaud Mercadier & Xxxxxxxx
000 xxxx Xxxxxxxxxxx
00000 Xxxxx Xxxxxx
Facsimile No.: (33)(0) 00 00 00 00
and addressed in the case of the Sellers:
To each Seller individually at the addresses provided in the recitals
hereabove.
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with copy to :
Xxxx-Xxxxxxxx Bretonniere
Xxxxx & XxXxxxxx
00 xxxxxx Xxxxxx
00000 Xxxxx Xxxxxx
Facsimile No.: (33)(0) 00 00 00 00
or any other address that may be communicated in writing by either of
the Parties to the other Party at least five days before the mailing of
such notification or communication.
15.2 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and assigns. Any successors to
the Sellers shall be liable for the respective obligations of the
Sellers hereunder.
15.3 Waivers
No change in, addition to, or waiver of the terms and provisions of
this Agreement shall be binding unless approved in writing by the
Parties. Neither any disclosure pursuant or subsequent to this
Agreement and the Exhibits hereto, nor any waiver by any Party on any
occasion of any of the terms and conditions of these representations
and warranties, shall be deemed to constitute a waiver by such Party of
such term or conditions (or of any other term or condition) on any
other occasion.
15.4 Assignment
This Agreement may not be assigned in whole or in part by any of the
Parties without the prior written consent of the other Parties hereto,
which consent shall not be unreasonably withheld. It is expressly
agreed that Purchaser may, notwithstanding and without prejudice to its
continuing obligations hereunder, substitute a 100% directly or
indirectly owned affiliate for purposes of the acquisition of the
Shares at Closing. Purchaser shall, however, remain jointly and
severally liable for all the obligations of any affiliate to which it
may assign this Agreement. Should an affiliate to which this Agreement
has been assigned under the terms of this Article 15.4, cease to be an
affiliate of the assignor, then, prior to so ceasing, this Agreement
shall be re-assigned to the original assignor or one of its majority
owned affiliates.
15.5 Exhibits
All exhibits and schedules hereto form an integral part of this
Agreement.
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15.6 Headings
The descriptive words or phrases at the head of the various Articles
herein are inserted only as a convenience and for reference and are in
no way intended to in any way define, limit or describe the scope or
intent of the particular Article to which they refer.
15.7 Severability
If at any time any part, any article, or any part of such article of
this Agreement is adjudged invalid, unenforceable or illegal by any
court, public authority, governmental department or agency, or other
forum, such adjudication shall not effect the remaining portions of
this Agreement, and this Agreement shall be construed as if such
invalid, enforceable or illegal provision had never been contained
herein.
15.8 Integration
This Agreement supersedes any and all prior agreements and
understandings among the Parties, whether written or oral with respect
to the subject matter hereof and thereof. This Agreement and the
Related Agreements set forth the entire agreement and understanding
among the Parties as to the subject matter hereof and thereof.
15.9 Expenses and Duties
Whether or not the transactions contemplated by this Agreement are
consummated, except as otherwise expressly provided herein, each of the
Parties shall bear all the expenses and costs incurred by it in
connection with this Agreement and the transactions contemplated
herein, including, but not limited to, the fees and disbursements of
any counsel, independent accountant or any other person or any other
representative whose services have been used by such Party. All
registration duties and stamp taxes arising as a result of the
execution of this Agreement and the consummation of the transaction
contemplated hereby shall be borne by the Purchaser.
For purposes of registration duties only, the Parties shall enter into
a brief deed of transfer in the form attached in ANNEX 15.9.
15.10 Third Party Rights
The provisions of this Agreement are intended solely for the benefit of
the Parties hereto and do not confer any third party beneficiary rights
to any other person.
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15.11 Amendments
No amendment to this Agreement shall have any effect whatsoever unless
it results from a written amendment, signed by the Parties.
15.12 Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall
constitute a single instrument.
Executed in _________
this 9th day of July 1997
In ... originals
BOLLE, INC.
By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Executive Vice President
BEC GROUP, INC.
By: /s/ Xxx Xxxxxx
-----------------------------
Name: Xxx Xxxxxx
Title: Executive Vice President
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Xxxxxxx Xxxxx
By: /s/ Xxxxxx Xxxxx
-----------------------------
Xxxxxx Xxxxx
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By: /s/ Franck Bolle
-----------------------------
Franck Bolle
By: /s/ Xxxxxxxx Xxxxx Passaquay
-----------------------------
Xxxxxxxx Xxxxx Passaquay
By: /s/ Xxxxxxxx Xxxxx
-----------------------------
Xxxxxxxx Xxxxx
By: /s/ Xxxxxxxxxx Xxxxx
-----------------------------
Xxxxxxxxxx Xxxxx
