STOCK PURCHASE AGREEMENT between THE STOCKHOLDERS OF ACTARIS METERING SYSTEMS S.A., as the Stockholders, LBO FRANCE GESTION SAS, as the Stockholder Representative, ACTARIS METERING SYSTEMS S.A., and ITRON, INC., as the Buyer Dated as of February 25, 2007
EXHIBIT
2.1
EXECUTION
COPY
between
THE
STOCKHOLDERS OF ACTARIS METERING SYSTEMS S.A.,
as
the Stockholders,
LBO
FRANCE GESTION SAS,
as
the Stockholder Representative,
ACTARIS
METERING SYSTEMS S.A.,
and
ITRON,
INC.,
as
the Buyer
Dated
as of February 25, 2007
TABLE
OF CONTENTS
Page
|
ARTICLE
I DEFINITIONS
|
|
5
|
|
Section
1.1
|
Certain
Defined Terms
|
5
|
|
Section
1.2
|
Table
of Definitions
|
11
|
|
ARTICLE
II PURCHASE AND SALE
|
|
12
|
|
Section
2.1
|
Purchase
and Sale
|
12
|
|
Section
2.2
|
Closing
|
14
|
|
Section
2.3
|
Stockholder
Representative
|
16
|
|
ARTICLE
III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
|
|
16
|
|
Section
3.1
|
Organization
and Qualification
|
17
|
|
Section
3.2
|
Authority
|
17
|
|
Section
3.3
|
No
Conflict; Required Filings and Consents
|
17
|
|
Section
3.4
|
Capitalization
|
18
|
|
Section
3.5
|
Equity
Interests
|
19
|
|
Section
3.6
|
Financial
Statements; No Undisclosed Liabilities
|
19
|
|
Section
3.7
|
Absence
of Certain Changes or Events.
|
19
|
|
Section
3.8
|
Compliance
with Law; Permits
|
20
|
|
Section
3.9
|
Litigation
|
20
|
|
Section
3.10
|
Employee
Benefit Plans
|
21
|
|
Section
3.11
|
Labor
and Employment Matters
|
22
|
|
Section
3.12
|
Title
to and Condition of Assets
|
23
|
|
Section
3.13
|
Real
Property
|
23
|
|
Section
3.14
|
Intellectual
Property
|
24
|
|
Section
3.15
|
Taxes
|
26
|
|
Section
3.16
|
Environmental
Matters
|
27
|
|
Section
3.17
|
Material
Contracts
|
28
|
|
Section
3.18
|
Affiliate
Interests and Transactions
|
30
|
|
Section
3.19
|
Insurance
|
30
|
|
Section
3.20
|
Customers
and Suppliers
|
30
|
|
Section
3.21
|
Product
Liability
|
30
|
|
Section
3.22
|
Government
Contracts
|
31
|
|
Section
3.23
|
Orders
and Warranties
|
31
|
|
Section
3.24
|
Export
Controls and Trade Sanctions
|
31
|
|
Section
3.25
|
Brokers
|
32
|
|
ARTICLE
IV REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
|
|
32
|
|
Section
4.1
|
Organization
|
32
|
|
Section
4.2
|
Authority
|
32
|
|
Section
4.3
|
No
Conflict; Required Filings and Consents
|
32
|
|
Section
4.4
|
Ownership
of Common Stock and Convertible Bonds
|
33
|
|
ARTICLE
V REPRESENTATIONS AND WARRANTIES OF THE BUYER
|
|
33
|
|
Section
5.1
|
Organization
|
33
|
|
Section
5.2
|
Authority
|
33
|
|
Section
5.3
|
No
Conflict; Required Filings and Consents
|
33
|
|
Section
5.4
|
Financing
|
34
|
|
Section
5.5
|
Brokers
|
34
|
|
Section
5.6
|
The
Buyer’s Examination
|
34
|
|
Section
5.7
|
Investigation;
Limitation on Warranties.
|
34
|
|
Section
5.8
|
Solvency
|
35
|
|
Section
5.9
|
Acquisition
for Investment
|
36
|
|
Section
5.10
|
Repayment
of the Credit Facility Agreements
|
36
|
|
ARTICLE
VI COVENANTS
|
|
36
|
|
Section
6.1
|
Conduct
of Business Prior to the Closing
|
36
|
|
Section
6.2
|
Covenants
Regarding Information
|
39
|
|
Section
6.3
|
Exclusivity
|
39
|
|
Section
6.4
|
Notification
of Certain Matters; Supplements to Disclosure Schedules
|
40
|
|
Section
6.5
|
Release
of Indemnity Obligations.
|
40
|
|
Section
6.6
|
Stockholder
Arrangements
|
40
|
|
Section
6.7
|
Director
Resignations
|
40
|
|
Section
6.8
|
Confidentiality
|
40
|
|
Section
6.9
|
Consents
and Filings
|
41
|
|
Section
6.10
|
Public
Announcements
|
43
|
|
Section
6.11
|
Repayment
of Group Indebtedness
|
43
|
|
Section
6.12
|
Employment
Matters
|
43
|
|
Section
6.13
|
Tax
Covenants
|
45
|
|
Section
6.14
|
Indemnification
of Directors and Officers
|
45
|
|
Section
6.15
|
Preservation
of Records; Post-Closing Access and Cooperation
|
47
|
|
Section
6.16
|
Indonesian
Subsidiary
|
47
|
|
ARTICLE
VII CONDITIONS TO CLOSING
|
|
47
|
|
Section
7.1
|
General
Conditions
|
47
|
|
Section
7.2
|
Conditions
to Obligations of the Company and the Stockholders
|
48
|
|
Section
7.3
|
Conditions
to Obligations of the Buyer
|
48
|
|
ARTICLE
VIII INDEMNIFICATION
|
|
49
|
|
Section
8.1
|
Survival
of Representations, Warranties and Covenants
|
49
|
|
Section
8.2
|
Indemnification
by the Stockholders
|
49
|
|
Section
8.3
|
Indemnification
by the Buyer
|
50
|
|
Section
8.4
|
Procedures
|
50
|
|
Section
8.5
|
Indemnification
Exclusive Remedy
|
51
|
|
Section
8.6
|
Indemnification
Limits.
|
52
|
|
ARTICLE
IX TERMINATION
|
|
54
|
|
Section
9.1
|
Termination
|
54
|
|
Section
9.2
|
Effect
of Termination
|
55
|
|
ARTICLE
X GENERAL PROVISIONS
|
|
55
|
|
Section
10.1
|
Fees
and Expenses
|
55
|
|
Section
10.2
|
Amendment
and Modification
|
55
|
|
Section
10.3
|
Waiver
|
55
|
|
Section
10.4
|
Notices
|
56
|
|
Section
10.5
|
Interpretation
|
57
|
|
Section
10.6
|
Entire
Agreement
|
57
|
|
Section
10.7
|
No
Third-Party Beneficiaries
|
57
|
|
Section
10.8
|
Governing
Law
|
58
|
|
Section
10.9
|
Submission
to Jurisdiction
|
58
|
|
Section
10.10
|
Assignment;
Successors
|
58
|
|
Section
10.11
|
Enforcement
|
58
|
|
Section
10.12
|
Currency
|
59
|
|
Section
10.13
|
Severability
|
59
|
|
Section
10.14
|
Waiver
of Jury Trial
|
59
|
|
Section
10.15
|
Counterparts
|
59
|
|
Section
10.16
|
Facsimile
Signature
|
59
|
|
Section
10.17
|
Time
of Essence
|
59
|
|
Section
10.18
|
No
Presumption Against Drafting Party
|
59
|
|
Section
10.19
|
Disclosure
Schedule
|
59
|
|
Section
10.20
|
Provision
Respecting Representation of Company
|
60
|
|
Section
10.21
|
Authority
and Rights of Stockholder Representative; Limitations on
Liability
|
60
|
|
Section
10.22
|
French
Tax Declaration
|
61
|
STOCK
PURCHASE AGREEMENT, dated as of February 25, 2007 (this "Agreement"), by
and among Actaris Metering Systems S.A., a Luxembourg public limited liability
company, having its registered office at 00, xxx xx Xxxxxxxx, X-0000, Xxxxxxxxxx
and registered with the Luxembourg Trade and Companies Register under the number
B 108445 (the "Company"), the stockholders of the Company, each of which
is listed on Exhibit A (each, a "Stockholder" and, collectively,
the "Stockholders"), LBO France Gestion SAS, as agent and
attorney-in-fact for the Stockholders (the "Stockholder Representative"),
and Itron, Inc., a Washington corporation (the "Buyer").
RECITALS
A. The
Company is engaged, directly and indirectly through its Subsidiaries, in the
manufacturing, marketing, selling, distributing, service and support operations
of, and research and development activities related to, electricity, water,
gas
and energy metering hardware and systems at various locations around the world
(the "Business").
B. The
Stockholders collectively own 100% of (i) the issued and outstanding shares
of
common stock, par value €25 per share ("Common Stock"), of the Company
and (ii) the outstanding convertible bonds issued by the Company (the
"Convertible Bonds").
C. The
Stockholders wish to sell to the Buyer, and the Buyer wishes to purchase from
the Stockholders, the Shares and the Convertible Bonds.
AGREEMENT
In
consideration of the foregoing and the mutual covenants and agreements herein
contained, and intending to be legally bound hereby, the parties hereto agree
as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.1 CERTAIN
DEFINED TERMS
. For
purposes of this Agreement:
"2006
Financial Statements" means, collectively, true and complete copies of the
audited consolidated balance sheet of the Company and its Subsidiaries as at
December 31, 2006 and the related audited consolidated statements of income,
retained earnings, stockholders' equity and changes in financial position of
the
Company and its Subsidiaries, together with all related notes and schedules
thereto, accompanied by the reports thereon of Ernst & Young
LLP.
"Action"
means any claim, notice, action, suit, inquiry, proceeding, audit or
investigation by or before any Governmental Authority, or any other arbitration,
mediation or similar proceeding.
"Affiliate"
means, with respect to any Person, any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, such first Person.
"Brazilian
Act" means the Brazilian Competition Law No 8.884/94 of June 11, 1994, as
amended.
"Business
Day" means any day that is not a Saturday, a Sunday or other day on which
banks are required or authorized by Law to be closed in the City of New York
or
the Grand Duchy of Luxembourg.
"Business
Employee" means, collectively, (i) each individual employed as of the
Closing Date by the Company or any Subsidiary of the Company and (ii) employees
of AMS Industries whose employment contracts entitle them to be employed by
the
Company upon termination of employment with AMS Industries.
"Contract"
means any written contract, agreement, arrangement or understanding, whether
express or implied.
"control",
including the terms "controlled by" and "under common control
with", means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, as trustee or executor, as general
partner or managing member, by Contract or otherwise, including the ownership,
directly or indirectly, of securities having the power to elect a majority
of
the board of directors or similar body governing the affairs of such
Person.
"Credit
Facility Agreements" means, collectively, (i) the credit facility agreement
entered into on June 20, 2005 between, among others, Mizuho Corporate Bank
Ltd.
and the Company, as amended by an amendment letter dated July 28, 2005 and
(ii)
the mezzanine credit facility agreement entered into on June 20, 2005 between,
among others, Mizuho Corporate Bank Ltd. and the Company, as amended by an
amendment letter dated July 28, 2005.
"Employee
Benefit Plan" shall mean any pension, profit sharing, retirement, deferred
compensation, stock purchase, stock option, stock appreciation, phantom stock
or
other equity based arrangement, compensation, incentive, bonus, commission,
performance, vacation, termination, retention, change of control, severance,
work place guarantee, golden parachute, disability, hospitalization, medical,
permanent health, dental, vision, disability, life insurance, cafeteria,
flexible spending account, or other employee benefit plan, program, policy,
agreement or arrangement, including any "employee benefit plan" (as defined
under Section 3(3) of ERISA), which (i) is sponsored, maintained or
contributed to by the Company or any Subsidiary of the Company that provides
benefits to any Business Employee, (ii) with respect to which the Company
or any Subsidiary of the Company listed on Exhibit B has any current or
future liability, whether contingent or otherwise, or (iii) with respect to
which the Buyer or an Affiliate of the Buyer may have any liability (whether
contingent or direct) as a result of the transactions contemplated by this
Agreement.
"Encumbrance"
means any charge, claim, equitable interest, mortgage, lien, option, pledge,
security interest, easement, encroachment, right of first refusal, adverse
claim
or restriction of any kind, including any restriction on or transfer of any
attribute of ownership.
"Environmental
Laws" means any Laws of any Governmental Authority relating to:
(i) management, Releases or threatened Releases, investigation or
remediation, of Hazardous Substances or materials containing Hazardous
Substances; (ii) the manufacture, handling, transport, use, treatment,
storage or disposal of Hazardous Substances or materials containing Hazardous
Substances; (iii) pollution or protection of the environment, health,
safety or natural resources; or (iv) the exposure of persons to Hazardous
Substances.
"Environmental
Permits" means all Permits under any Environmental Law.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as
amended.
"GAAP"
means United States generally accepted accounting principles and
practices.
"German
Act" means the German Act against Restrictions of Competition of 1957,
restated as of July 15, 2005 and as amended from time to time.
"Governmental
Authority" means any national, supranational, European Union, federal,
state, provincial, local or similar legislative body, government, governmental,
quasi-governmental, statutory, regulatory or administrative authority, branch,
agency or commission or any court, tribunal, or arbitral or judicial
body.
"Group
Indebtedness" means all outstanding and unpaid amounts, other than any
outstanding and unpaid amounts arising from or relating to the Convertible
Bonds, owing at Closing (including principal, interests, penalties and any
other
sums) by the Company and/or its Subsidiaries pursuant to or in connection with
the Credit Facility Agreements (including, for the avoidance of doubt, any
amounts that may be due upon termination of any hedging arrangements entered
into in connection with the Credit Facility Agreements).
"Hazardous
Substances" means any substance, material, or waste: (i) the Release,
handling, storage, transportation, use or presence of which requires permission,
investigation or remediation under any Environmental Law, (ii) that
contains petroleum or petroleum products, including crude oil and any fractions
thereof, natural gas, synthetic gas, or any mixtures thereof, (iii) that
contains polychlorinated biphenyls, asbestos, or radon,
(iv) that is defined under any Environmental Law as a "pollutant",
"contaminant", "hazardous substance", "hazardous waste", or "hazardous
material", or (v) that is regulated by any Governmental Authority pursuant
to any Environmental Law.
"Immediate
Family", with respect to any specified Person, means such Person's spouse,
parents, children and siblings, including adoptive relationships and
relationships through marriage, or any other relative of such Person that shares
such Person's home.
"Intellectual
Property" means all rights arising from or associated with the following
protected, created, arising or subsisting under the laws of any jurisdiction:
(i) trade names, trademarks and service marks (registered and
unregistered), domain names and other Internet addresses or identifiers, trade
dress and similar rights, registrations and applications (including intent
to
use applications) to register any of the foregoing (collectively,
"Marks"); (ii) patents and patent applications (collectively,
"Patents") and inventions; (iii) copyrights (registered and
unregistered) and registrations and applications for registration
(collectively, "Copyrights") and all works of authorship and other
copyrightable expression; (iv) know-how, inventions, methods, processes,
technical data, specifications, research and development information,
technology, product roadmaps, customer lists and any other information, in
each
case to the extent any of the foregoing derives economic value (actual or
potential) from not being generally known to other persons who can obtain
economic value from its disclosure or use (collectively, "Trade
Secrets"); and (v) moral rights, publicity rights, data base rights,
rights in industrial designs, rights in mask works, and any other proprietary
or
intellectual property rights of any kind or nature that do not comprise or
are
not protected by Marks, Patents, Copyrights or Trade Secrets.
"Knowledge"
with respect to (i) the Company, means the actual (not
constructive) personal knowledge, without imputation of actual or
constructive knowledge of any other Person, and expressly without independent
inquiry, verification or investigation or any duty or obligation to conduct
any
inquiry, verification or investigation, of each individual set forth on
Exhibit C (it being understood and agreed that no such individuals shall
have any personal liability with respect to any matter set forth in this
Agreement or otherwise in any way related to the transactions contemplated
hereby, without prejudice to the liabilities of the Stockholders under this
Agreement) and (ii) each of the Stockholders, means the actual (not
constructive) personal knowledge, without imputation of actual or
constructive knowledge of any other Person, and expressly without independent
inquiry, verification or investigation or any duty or obligation to conduct
any
inquiry, verification or investigation, of the individuals set forth opposite
such Stockholder's name on Exhibit D (it being understood and agreed that
no such individuals shall have any personal liability with respect to any matter
set forth in this Agreement or otherwise in any way related to the transactions
contemplated hereby, without prejudice to the liabilities of the Stockholders
under this Agreement) .
"Law"
means any statute, law, ordinance, regulation, rule, code, executive order,
injunction, judgment, decree or order of any Governmental
Authority.
“Losses”
means, collectively, any losses, damages, liabilities, deficiencies, claims,
interest, awards, judgments, penalties, costs and expenses (including attorneys’
fees, costs and other out-of-pocket expenses incurred in defending the
foregoing, but not including special, speculative, punitive, indirect,
incidental, or consequential damages or damages relating to business
interruption or lost profits (even if advised of the possibility thereof),
and,
in particular, no "multiple of profits" or "multiple of cash flow" or similar
valuation methodology shall be used in the calculating the amount of any
Losses).
"Material
Leased Real Property" means all real property that is leased, subleased or
licensed to the Company or any of its Subsidiaries and that is material to
the
operation of the Business as currently conducted (other than Owned Real
Property) or which the Company or any of its Subsidiaries otherwise has a
right or option to use or occupy, together with all structures, facilities,
fixtures, systems, improvements and items of property located thereon on the
date hereof or at any time hereafter, or attached or appurtenant thereto, and
all easements, rights and appurtenances relating to the foregoing.
"Material
Adverse Effect" means a Material Adverse Event that has or would reasonably
be expected to have an impact at least equal to €6.2 million, calculated after
giving effect to (i), (ii) and (iii) of Section 8.6(e).
"Material
Adverse Event" means any event, change, circumstance or development that is
or would reasonably be expected to be materially adverse to (i) the
business, financial condition or operations of the Company and its Subsidiaries,
taken as a whole or (ii) the ability of the Company to perform its
obligations under this Agreement or to consummate the transactions contemplated
hereby; provided, however, that Material Adverse Event shall not
include any circumstance, change, development, event or state of facts arising
out of or attributable to any of the following, either alone or in
combination: (1) the markets in which the Company and its
Subsidiaries operate generally (so long as the Company and its Subsidiaries
are
not specifically and disproportionately affected thereby) or purchase their
raw
materials (non-ferrous metals on the London metal exchange market);
(2) general economic, business, industry or political conditions (including
those affecting the securities markets); (3) the taking of any action
required or permitted by this Agreement; (4) the announcement or pendency
of the transactions contemplated by this Agreement, including any suit, action
or proceeding in connection with such transactions, (5) acts of war,
sabotage, terrorism, military actions or the escalation thereof; (6) any
changes in applicable Laws, regulations or accounting rules, including GAAP
as
applied on a consistent basis; or (7) any event or occurrence specifically
disclosed in the Disclosure Schedules, to the extent disclosed
therein.
"Material
Intellectual Property" means all Intellectual Property that is material to
the operation of the Business as currently conducted.
"Material
Owned Real Property" means all Owned Real Property that is material to the
operation of the Business as currently conducted.
"Owned
Real Property" means all real property that is owned by the Company or any
of its Subsidiaries, together with all structures, facilities, fixtures,
systems, improvements and items of property located thereon on the date hereof
or at any time hereafter, or attached or appurtenant thereto, and all easements,
rights and appurtenances relating to the foregoing.
"Participating
Member State" means any member state of the European Community that adopts
or has adopted the Euro as its lawful currency in accordance with legislation
of
the European Community relating to Economic and Monetary Union.
"Person"
means an individual, corporation, partnership, limited liability company,
limited liability partnership, person, trust, association, organization or
other
entity, including any Governmental Authority and including any successor, by
merger or otherwise, of any of the foregoing.
"Portuguese
Act" means the Portuguese Competition Act No 18/2003 of June 11, 2003, as
amended.
"Purchase
Price" for the Shares and the Convertible Bonds means an amount equal to
€800,000,000.
"Related
Party", with respect to any specified Person, means: (i) any Affiliate
of such specified Person, or any director, executive officer, partner or member
of such Affiliate; (ii) any Person who serves as a director, executive
officer, partner, member or in a similar capacity of such specified Person;
(iii) any Immediate Family member of a Person described in clause (ii); or
(iv) any other Person who holds, individually or together with any
Affiliate of such other Person and any member(s) of such Person's Immediate
Family, more than 5% of the outstanding equity or ownership interests of such
specified Person.
"Release",
when used in connection with Hazardous Substances, means any spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing into the environment (including the abandonment
or discarding of barrels, containers, and other closed receptacles containing
any Hazardous Substance or pollutant or contaminant), including (i) any
release which results in exposure to persons solely within a workplace, with
respect to a claim which such persons may assert against the employer of such
persons, and (ii) the normal application of fertilizer.
"Return"
means any return, declaration, report, statement, information statement and
other document required to be filed with respect to Taxes.
"Shares"
means all of the shares of Common Stock held by the Stockholders on the date
hereof.
"Spanish
Act" means the Spanish Law for the Defence of Competition 16/1989, as
amended.
"Subsidiary"
means, with respect to any Person, any other Person controlled by such first
Person, directly or indirectly, through one or more intermediaries.
"Taxes"
means all direct and indirect national, supranational, federal, state,
provincial, local and other net income, gross income, gross receipts, sales,
use, ad valorem, transfer, franchise, profits, registration, license, lease,
service, service use, withholding, payroll, employment, social security
contributions, excise, severance, stamp, occupation, premium, property, windfall
profits, customs, duties or other taxes, fees, assessments or charges of any
kind whatsoever, together with any interest and any penalties, additions to
tax
or additional amounts with respect thereto.
"Transaction
Expenses" means all fees and expenses payable by the Stockholders, the
Company and its Subsidiaries in connection with the transactions contemplated
by
this Agreement, including fees and expenses payable to all attorneys,
accountants, financial advisors and other professionals and bankers', brokers'
or finders' fees for persons not specifically engaged by the Buyer.
"Ukrainian
Act" means the Ukrainian Law No 22-10 on Protection of Economic Competition
of January 11, 2001, as amended.
SECTION
1.2 TABLE
OF DEFINITIONS
The
following terms have the meanings set forth in the Sections referenced
below:
Definition Location
|
409A
Authorities
|
3.10(h)
|
|
Agreement
|
Preamble
|
|
AJCA
|
3.10(h)
|
|
Alternative
Arrangements
|
8.6(e)
|
|
Balance
Sheet
|
3.6(a)
|
|
Business
|
Recitals
|
|
Buyer
|
Preamble
|
|
Claims
|
8.6(h)
|
|
Closing
|
2.2(a)
|
|
Closing
Date
|
2.2(a)
|
|
Code
|
3.10(c)
|
|
Common
Stock
|
Recitals
|
|
Company
|
Preamble
|
|
Company
Registered IP
|
3.14(e)
|
|
Confidential
Information
|
6.8(b)
|
|
Continuing
Employees
|
6.12(a)
|
|
Convertible
Bonds
|
Recitals
|
|
Core
Representations
|
8.1
|
|
Covered
Affiliates
|
6.14(c)
|
|
Credit
Facilities Liens
|
3.12(a)
|
|
D&O
Costs
|
6.14(c)
|
|
D&O
Expenses
|
6.14(c)
|
|
D&O
Indemnifiable Claim
|
6.14(c)
|
|
D&O
Indemnifying Party
|
6.14(c)
|
|
D&O
Indemnitee
|
6.14(c)
|
|
D&O
Indemnitees
|
6.14(c)
|
|
Data
Room
|
5.6
|
|
Designated
Contacts
|
6.2
|
|
Disclosure
Schedules
|
Article
III
|
|
FCPR
|
Article
IV
|
|
Financial
Statements
|
3.6(a)
|
|
German
and UK Subsidiaries Buyer
|
2.1(d)
|
|
German
and UK Subsidiary Purchase
|
2.1(d)
|
|
German
Subsidiary
|
2.1(d)
|
|
German
Subsidiary Check
|
2.1(d)
|
|
German
Subsidiary Purchase
|
2.1(d)
|
|
German
Subsidiary Stock
|
2.1(d)
|
|
Governmental
Approvals
|
6.9(a)
|
|
Indemnified
Party
|
8.4(a)
|
|
Indemnifying
Party
|
8.4(a)
|
|
Licensed
IP
|
3.14(c)
|
|
Majority
Holders
|
2.3(b)
|
|
Material
Contracts
|
3.17(a)
|
|
Nonqualified
Deferred Compensation Plan
|
3.10(h)
|
|
Permits
|
3.8(b)
|
|
Permitted
Encumbrances
|
3.12(a)
|
|
Releasee
|
8.6(h)
|
|
Releasor
|
8.6(h)
|
|
Representatives
|
6.2
|
|
Scheduled
IP
|
3.14(a)
|
|
Seller
Group
|
10.20
|
|
Stockholder
|
Preamble
|
|
Stockholder
Representative
|
Preamble
|
|
Stockholders
|
Preamble
|
|
Third
Party Claim
|
8.4(a)
|
|
Transfer
Taxes
|
6.13(c)
|
|
UK
Subsidiary
|
2.1(d)
|
|
UK
Subsidiary Check
|
2.1(d)
|
|
UK
Subsidiary Purchase
|
2.1(d)
|
|
UK
Subsidiary Stock
|
2.1(d)
|
|
Unaudited
Financial Statements
|
3.6(a)
|
ARTICLE
II
PURCHASE
AND SALE
SECTION
2.1 PURCHASE
AND SALE
(A)
Upon
the
terms and subject to the conditions of this Agreement, at the Closing, (i)
(A) each Stockholder shall sell, assign, transfer, convey and deliver to
the Buyer, and the Buyer shall purchase from such Stockholder, the amount of
Common Stock and Convertible Bonds set forth opposite such Stockholder’s name on
Exhibit A, free and clear of all Encumbrances, and (B) the Buyer
shall pay to such Stockholder the amount of the Purchase Price set forth
opposite such Stockholder’s name on Exhibit A (which amount shall be
provided in an updated Exhibit A in accordance with this Section
2.1(a) and shall be based on such Stockholder’s percentage ownership of
Shares and Convertible Bonds at Closing), by wire transfer of immediately
available funds in Euro, and (ii) the Buyer shall pay to the Company the Group
Indebtedness. Ten Business Days prior to the anticipated Closing
Date, the Company shall deliver to the Buyer a schedule setting forth the amount
of Group Indebtedness to be paid by the Company at the Closing. The
Buyer acknowledges and agrees that the Stockholders may transfer a certain
amount of Common Stock and/or Convertible Bonds among themselves prior to the
Closing and that the amount of the Common Stock and Convertible Bonds, the
percentage ownership of Shares and Convertible Bonds, and the Purchase Price
set
forth opposite each Stockholder’s name on Exhibit A shall be updated by
the Stockholder Representative to reflect the amounts of Common Stock and
Convertible Bonds owned by, the percentage ownership of Shares and Convertible
Bonds of, and the amount of the Purchase Price to be paid to, each Stockholder
at the Closing; provided, that, between the date of this Agreement and
the Closing, no amount of Common Stock or Convertible Bonds may be transferred
by any Stockholder to a Person that is not a Stockholder as of the date of
this
Agreement; provided, further, that such updated Exhibit A
shall be delivered to the Buyer by the Stockholder Representative at least
ten
Business Days prior to the Closing Date. Such updated Exhibit
A shall also set forth a bank account opposite each Stockholder’s name into
which the Buyer shall deposit the amount of the Purchase Price to be paid to
such Stockholder at the Closing. The Stockholder Representative shall
be the sole responsible for the allocation of the Purchase Price among the
Stockholders and each Stockholder acknowledges that the Buyer shall be fully
discharged from its obligation to pay the Purchase Price by paying to each
Stockholder such amount of the Purchase Price as shall have been set forth
opposite such Stockholder’s name in the updated Exhibit A in accordance
with this Section 2.1(a). The Stockholders may be entitled to receive
an additional payment to be calculated and to be allocated among the
Stockholders as set forth on Exhibit E.
(B)
The
Buyer
and the Stockholders instruct and authorize the Company and further empower,
with full power of substitution, any director of the Company, acting under
such
director’s signature, to register on the Closing Date, in their name and on
their behalf, the sale, assignment, transfer, conveyance and delivery of (i)
the
Shares in the stockholders’ register of the Company and (ii) the Convertible
Bonds in the bondholders’ register of the Company.
(C)
Provided
the Buyer has (i) paid the Purchase Price and (ii) paid to the Company
the Group Indebtedness, this Agreement transfers the rights to the Shares and
to
the Convertible Bonds and all rights and obligations attached thereto, including
the right to dividends or other distributions pertaining to the Shares, as
from
the Closing Date.
(D)
At
the
offices of Loyens Winandy, at 00, xxx Xxxxxx Xxxxxxxx, X-0000 Xxxxxxxxxx, on
the
Closing Date, or at such other place or at such other time as the Buyer and
the
Stockholder Representative mutually may agree in writing, provided that the
conditions set forth in this Agreement are met (or waived, as applicable),
the
Company shall sell, assign, transfer, convey and deliver to a wholly-owned
Subsidiary of the Buyer (the “German and UK Subsidiaries Buyer”), which
shall purchase from the Company, (i) immediately prior to the Closing, all
of
the issued and outstanding shares of capital stock of Actaris Development UK
II
(the “UK Subsidiary Stock”), a company organized under the laws of the
United Kingdom and wholly-owned Subsidiary of the Company (the “UK
Subsidiary”), and the German and UK Subsidiaries Buyer shall deliver to the
Company a check made by the Buyer payable to the Company in the amount of
€169,000,000 (the “UK Subsidiary Check”) in exchange therefor (the “UK
Subsidiary Purchase”), and (ii) immediately following the UK Subsidiary
Purchase and prior to the Closing, all of the issued and outstanding shares
of
capital stock of Actaris Development Germany (the “German Subsidiary
Stock”), a company organized under the laws of Germany and wholly-owned
Subsidiary of the Company (the “German Subsidiary”), and the German and
UK Subsidiaries Buyer shall deliver to the Company a check made by the Buyer
payable to the Company in the amount of €114,000,000 (the “German Subsidiary
Check”) in exchange therefor (the “German Subsidiary Purchase” and,
together with the UK Subsidiary Purchase, the “German and UK Subsidiary
Purchase”). Each of the Company and the German and UK
Subsidiaries Buyer shall deliver all documents, in form and substance reasonably
satisfactory to the Buyer and the Company, respectively, as such party may
request or as may be otherwise necessary or desirable to evidence and effect
the
German and UK Subsidiaries Purchase. For the avoidance of doubt, the
UK Subsidiary Stock and the German Subsidiary Stock shall be subject to
Permitted Encumbrances at the time of the consummation of the German and UK
Subsidiary Purchase. Upon consummation of the Closing, the UK
Subsidiary Stock and the German Subsidiary Stock shall be free and clear of
all
Encumbrances.
(E)
If,
following the consummation of the German and UK Subsidiaries Purchase in
accordance with Section 2.1(d), the Closing does not take place for any
reason whatsoever, the parties agree that the German and UK Subsidiaries
Purchase shall be automatically cancelled and deemed null and void and (i)
the
German Subsidiary Stock and the UK Subsidiary Stock shall remain the property
the Company and (ii) the German Subsidiary Check and the UK Subsidiary Check
shall be cancelled and shall have no force or effect. Each of the
Company and the German and UK Subsidiaries Buyer shall take all actions and
shall deliver all documents as may be necessary or desirable to evidence such
cancellations. The German and UK Subsidiaries Buyer further
undertakes that it shall pay all taxes and fees incurred in connection with
such
cancellations and that it shall indemnify and hold harmless the Company from
and
against any and all Losses incurred by the Company arising from or relating
to
the cancellation of the German and UK Subsidiary Purchase, except for any such
Losses arising from or relating to the failure of any Stockholder or the Company
to fulfill any covenant or obligation of such party under this
Agreement).
(F)
The
parties agree that, if, for any reason (other than the failure of any
Stockholder or the Company to fulfill any covenant or obligation of such party
under this Agreement), the consummation of the German and UK Subsidiaries
Purchase does not take place, so long as all conditions set forth in this
Agreement are met (or waived, as applicable), the Closing will occur as provided
herein and none of the Company or the Stockholders shall be held liable to
the
Buyer or any of its Affiliates, including the German Subsidiary and the UK
Subsidiary.
SECTION
2.2 CLOSING
(A)
The
purchase and sale of the Shares and of the Convertible Bonds shall take place
at
a closing (the "Closing") to be simultaneously held in Luxembourg at
the offices of Loyens Winandy, at 00, xxx Xxxxxx Xxxxxxxx, X-0000 Xxxxxxxxxx,
and at the offices of Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, at 4:00 P.M., Luxembourg Time, at the latest on the
first
Business Day following the 64th day following the date of this Agreement, or
at
such other place or at such other time or on such other date as the Buyer and
the Stockholder Representative mutually may agree in writing, provided that
the
conditions set forth in this Agreement are met (or waived, as
applicable). The day on which the Closing takes place is referred to
as the "Closing Date".
(B)
At
the
Closing, each Stockholder shall deliver, or cause to be delivered, to the Buyer
the following documents:
(I) CERTIFICATES
REPRESENTING THE COMMON STOCK AND THE AMOUNT OF THE CONVERTIBLE BONDS SET FORTH
OPPOSITE SUCH STOCKHOLDER’S NAME ON EXHIBIT A, DULY ENDORSED IN BLANK OR
ACCOMPANIED BY STOCK POWERS DULY ENDORSED IN BLANK IN PROPER FORM FOR TRANSFER,
WITH APPROPRIATE TRANSFER STAMPS, IF ANY, AFFIXED, OR ANY OTHER EQUIVALENT
DULY
SIGNED INSTRUMENTS EVIDENCING THE TRANSFER OF SUCH COMMON STOCK AND CONVERTIBLE
BONDS;
(II) CERTIFIED
RESOLUTIONS OF THE BOARD OF DIRECTORS, OR EQUIVALENT GOVERNING BODY, OF SUCH
STOCKHOLDER, IF APPLICABLE, AUTHORIZING THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT;
(III) A
DULY EXECUTED CERTIFICATE OF THE SECRETARY, OR EQUIVALENT OFFICER, OF SUCH
STOCKHOLDER, IF APPLICABLE, AS TO INCUMBENCY AND SPECIMEN SIGNATURE OF THE
OFFICER OF SUCH STOCKHOLDER EXECUTING THIS AGREEMENT; AND
(IV) SUCH
OTHER DOCUMENTS, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE BUYER,
AS
THE BUYER MAY REASONABLY REQUEST OR AS MAY BE OTHERWISE NECESSARY OR DESIRABLE
TO EVIDENCE AND EFFECT THE SALE, ASSIGNMENT, TRANSFER, CONVEYANCE AND DELIVERY
OF THE COMMON STOCK AND THE AMOUNT OF THE CONVERTIBLE BONDS SET FORTH OPPOSITE
SUCH STOCKHOLDER’S NAME ON EXHIBIT A TO THE BUYER.
(C)
At
the
Closing, the Company shall deliver, or cause to be delivered, to the Buyer
the
following documents:
(I) CERTIFIED
COPIES OF THE ARTICLES OF INCORPORATION, OR EQUIVALENT ORGANIZATIONAL DOCUMENTS,
OF THE COMPANY;
(II) CERTIFIED
RESOLUTIONS OF THE BOARD OF DIRECTORS, OR EQUIVALENT GOVERNING BODY, OF THE
COMPANY, AUTHORIZING THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT;
(III) A
DULY EXECUTED CERTIFICATE OF THE SECRETARY, OR EQUIVALENT OFFICER, OF THE
COMPANY, AS TO INCUMBENCY AND SPECIMEN SIGNATURE OF THE OFFICER OF THE COMPANY
EXECUTING THIS AGREEMENT;
(IV) A
DULY EXECUTED CERTIFICATE OF AN EXECUTIVE OFFICER OF THE COMPANY CERTIFYING
THE
FULFILLMENT OF THE CONDITIONS SET FORTH IN SECTION
7.3(A);
(V) A
DULY EXECUTED CERTIFICATE OF THE COMPANY FOR PURPOSES OF SATISFYING THE
COMPANY'S OBLIGATIONS UNDER TREASURY REGULATION SECTION
1.1445-2(C)(3);
(VI) SUCH
OTHER DOCUMENTS, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE BUYER,
AS
THE BUYER MAY REASONABLY REQUEST OR AS MAY BE OTHERWISE NECESSARY OR DESIRABLE
TO EVIDENCE AND EFFECT THE SALE, ASSIGNMENT, TRANSFER, CONVEYANCE AND DELIVERY
OF THE SHARES AND THE CONVERTIBLE BONDS TO THE BUYER.
(D)
At
the
Closing, the Buyer shall deliver, or cause to be delivered, to the Stockholder
Representative the following documents:
(I) CERTIFIED
COPIES OF THE CERTIFICATE OF INCORPORATION AND BYLAWS OF THE
BUYER;
(II) CERTIFIED
RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE BUYER AUTHORIZING THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT;
(III) A
DULY EXECUTED CERTIFICATE OF THE SECRETARY OF THE BUYER AS TO INCUMBENCY AND
SPECIMEN SIGNATURE OF THE OFFICER OF THE BUYER EXECUTING THIS
AGREEMENT;
(IV) A
DULY EXECUTED CERTIFICATE OF AN EXECUTIVE OFFICER OF THE BUYER CERTIFYING THE
FULFILLMENT OF THE CONDITIONS SET FORTH IN SECTION 7.2(A);
AND
(V) SUCH
OTHER DOCUMENTS, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
STOCKHOLDER REPRESENTATIVE, AS THE STOCKHOLDER REPRESENTATIVE MAY REASONABLY
REQUEST OR AS MAY BE OTHERWISE NECESSARY OR DESIRABLE TO EVIDENCE AND EFFECT
THE
SALE, ASSIGNMENT, TRANSFER, CONVEYANCE AND DELIVERY OF THE SHARES AND THE
CONVERTIBLE BONDS TO THE BUYER AND THE PAYMENT OF THE PURCHASE PRICE TO THE
STOCKHOLDERS.
SECTION
2.3 STOCKHOLDER
REPRESENTATIVE
(A)
Immediately
upon execution of this Agreement by all the Stockholders, each Stockholder
shall
be deemed to have consented to the appointment of the Stockholder Representative
as such Stockholder's representative and attorney-in-fact, with full power
of
substitution to act on behalf of such Stockholder to the extent and in the
manner set forth in this Agreement. All decisions, actions, consents
and instructions by the Stockholder Representative shall be binding upon each
of
the Stockholders, and no Stockholder shall have the right to object to, dissent
from, protest or otherwise contest the same. The Buyer shall be
entitled to rely on any decision, action, consent or instruction of the
Stockholder Representative as being the decision, action, consent or instruction
of each the Stockholders, and the Buyer is hereby relieved from any liability
to
any Person for acts done by it or them in accordance with any such decision,
act, consent or instruction.
(B)
The
Stockholder Representative may resign at any time, and may be removed for any
reason or no reason by the vote or written consent of the Stockholders holding
a
majority of the Common Stock of the Company, on an as-converted, fully-diluted
basis (the "Majority Holders"), immediately prior to the
Closing. In the event of the death, incapacity, resignation or
removal of the Stockholder Representative, a new Stockholder Representative
shall be appointed by the vote or written consent of the Majority
Holders. Notice of such vote or a copy of the written consent
appointing such new Stockholder Representative shall be sent to the Buyer,
such
appointment to be effective upon the later of the date indicated in such consent
or the date such consent is received by the Buyer.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
OF
THE COMPANY
Except
as
set forth in the corresponding sections or subsections of the Disclosure
Schedules attached hereto (collectively, the "Disclosure Schedules"), the
Company hereby represents and warrants as of the date hereof (except with
respect to Core Representations, with respect to which the Company represents
and warrants as of the date hereof and as of the Closing Date) to the Buyer
as
follows:
SECTION
3.1 ORGANIZATION
AND QUALIFICATION
(A)
The
Company and each of its Subsidiaries is (i) a corporation or public limited
liability company (société anonyme), as applicable, duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
incorporation, and has full corporate power and authority to own, lease and
operate its properties and to carry on its business as it is now being conducted
and (ii) duly qualified or licensed as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the character
of
the properties owned, leased or operated by it or the nature of its business
makes such qualification or licensing necessary, except for any such failures
to
be so qualified or licensed and in good standing that would not, individually
or
in the aggregate, constitute a Material Adverse Event.
(B)
Except
as
set forth on Schedule 3.1(b) of the Disclosure Schedules, the
Company owns, directly or indirectly, all of the outstanding capital stock
of
each Subsidiary of the Company. The Company has heretofore furnished
to the Buyer a complete and correct copy of the certificate of incorporation
and
bylaws or equivalent organizational documents providing evidence of due
incorporation, good standing, and actual corporate constitution under applicable
Laws, each as amended to date, of the Company and each of its
Subsidiaries. Such certificates of incorporation, bylaws or
equivalent organizational documents are in full force and
effect. None of the Company or any of its Subsidiaries is in
violation of any of the material provisions of its certificate of incorporation,
bylaws or equivalent organizational documents. The transfer books,
minute books and any other applicable statutory books and filings of each of
the
Company and, where applicable, its Subsidiaries that have been made available
for inspection by the Buyer prior to the date hereof are true and
complete.
SECTION
3.2 AUTHORITY
. The
Company has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and
performance by the Company of this Agreement and the consummation by the Company
of the transactions contemplated hereby have been duly and validly authorized
by
all necessary corporate action. This Agreement has been duly executed
and delivered by the Company. This Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable against the Company
in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws
in
effect which affect the enforcement of creditor’s rights generally and by
equitable principles.
SECTION
3.3 NO
CONFLICT; REQUIRED FILINGS AND CONSENTS
(A)
The
execution, delivery and performance by the Company of this Agreement and the
consummation of the transactions contemplated hereby, do not and will
not:
(I) CONFLICT
WITH OR VIOLATE THE ARTICLES OF INCORPORATION OR BYLAWS, OR EQUIVALENT
ORGANIZATIONAL DOCUMENTS, OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES;
(II) CONFLICT
WITH OR VIOLATE ANY LAW APPLICABLE TO THE COMPANY OR ANY OF ITS SUBSIDIARIES
OR
BY WHICH ANY PROPERTY OR ASSET OF THE BUSINESS IS BOUND OR AFFECTED;
OR
(III) RESULT
IN ANY MATERIAL BREACH OF, CONSTITUTE A MATERIAL DEFAULT (OR AN EVENT THAT,
WITH
NOTICE OR LAPSE OF TIME OR BOTH, WOULD BECOME A MATERIAL DEFAULT) UNDER,
REQUIRE ANY CONSENT OF OR NOTICE TO ANY PERSON PURSUANT TO, OR GIVE TO OTHERS
ANY RIGHT OF TERMINATION, AMENDMENT, MODIFICATION, ACCELERATION OR CANCELLATION
OF ANY MATERIAL CONTRACT TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS
A
PARTY OR BY WHICH ANY OF ITS OR THEIR RESPECTIVE PROPERTIES, ASSETS OR RIGHTS
ARE BOUND OR AFFECTED.
(B)
None
of
the Company or any of its Subsidiaries is required to file, seek or obtain
any
notice, authorization, approval, order, permit or consent of or with any
Governmental Authority in connection with the execution, delivery and
performance by the Company of this Agreement or the consummation of the
transactions contemplated hereby or in order to prevent the termination of
any
right, privilege, license or qualification of the Business, except for
(i) any filings required to be made by the Buyer (with the cooperation of
the Company) under the German Act, the Spanish Act, the Brazilian Act, the
Portuguese Act and the Ukrainian Act, and (ii) any other filings required
to be made under any applicable antitrust or competition laws of any
Governmental Authority, other than those to be made by the Buyer.
SECTION
3.4 CAPITALIZATION
. The
subscribed capital of the Company is fixed at €1,630,200, represented by 33,200
shares of class A 1 Common Stock, 28,008 shares of class A 2 Common Stock,
and
4,000 shares of class A 3 Common Stock, collectively constituting the
Shares. The Company has issued (i) 2,016,336 A 1 convertible bonds,
(ii) 360,060 A 2 convertible bonds, (iii) 3,461,136 B 1 convertible bonds and
(iv) 618,060 B 2 convertible bonds, collectively constituting the Convertible
Bonds. Schedule 3.4 of the Disclosure
Schedules sets forth, for each Subsidiary of the Company,
the amount of its authorized capital stock, the amount of its outstanding
capital stock and the record and beneficial owners of its outstanding capital
stock. Except as set forth in Schedule 3.4 of the Disclosure
Schedules, neither the Company nor any of its Subsidiaries has issued or agreed
to issue any: (i) share of capital stock or other equity or
ownership interest; (ii) option, warrant or interest convertible into or
exchangeable or exercisable for the purchase of shares of capital stock or
other
equity or ownership interests; (iii) stock appreciation right, phantom
stock, interest in the ownership of the Company or any of its Subsidiaries
or
other equity equivalent or equity-based award or right; or (iv) bond,
debenture or other indebtedness having the right to vote or convertible or
exchangeable for capital stock or other equity or ownership interests or for
securities having the right to vote. Each outstanding share of
capital stock or other equity or ownership interest of the Company and each
of
its Subsidiaries is duly authorized, validly issued, fully paid and
nonassessable, and in the case of the Subsidiaries of the Company, except as
set
forth in Schedule 3.4 of the Disclosure Schedules, each such share or
other equity or ownership interest is owned by the Company or another Subsidiary
of the Company, free and clear of any Encumbrance other than the Permitted
Encumbrances (a list of which, to the extent they relate to shares or equity
ownership interest of the Company and its Subsidiaries, is set forth in
Schedule 3.4 of the Disclosure Schedules). All of the
aforesaid shares or other equity or ownership interests have been offered,
sold
and delivered by the Company or a Subsidiary in compliance with all applicable
securities Laws. Except for rights granted to the Buyer under this
Agreement, there are no outstanding obligations of the Company or any of its
Subsidiaries to issue, sell or transfer or repurchase, redeem or otherwise
acquire, or that relate to the voting or disposition of, or that restrict the
transfer of, the issued or unissued capital stock or other equity or ownership
interests of the Company or any of its Subsidiaries. No shares of
capital stock or other equity or ownership interests of the Company or any
of
its Subsidiaries have been issued in violation of any rights, agreements,
arrangements or commitments under any provision of applicable Law or the
articles of incorporation or bylaws, or equivalent organizational documents,
of
the Company or any of its Subsidiaries.
SECTION
3.5 EQUITY
INTERESTS
. Except
for the Subsidiaries of the Company listed on Schedule 3.4 of the
Disclosure Schedules, neither the Company nor any of its Subsidiaries directly
or indirectly owns any equity, partnership, membership or similar interest
in,
or any interest convertible into, exercisable for the purchase of or
exchangeable for any such equity, partnership, membership or similar interest
or
is under any current or prospective obligation to form or participate in,
provide funds to, make any loan, capital contribution or other investment in
or
assume any liability or obligation of, any Person.
SECTION
3.6 FINANCIAL
STATEMENTS; NO UNDISCLOSED LIABILITIES
(A)
True
and
complete copies of the audited consolidated balance sheet of the Company and
its
Subsidiaries as at December 31, 2004 and 2005 and the related audited
consolidated statements of income, retained earnings, stockholders' equity
and
changes in financial position of the Company and its Subsidiaries, together
with
all related notes and schedules thereto, accompanied by the reports thereon
of
the Company's independent auditors (collectively referred to as the
"Financial Statements") and the unaudited consolidated balance sheet
of the Company and its Subsidiaries as at December 31, 2006 (the "Balance
Sheet"), and the related consolidated statements of income, retained
earnings, stockholders' equity and changes in financial position of the Company
and its Subsidiaries, together with all related notes and schedules thereto
(collectively referred to as the "Unaudited Financial
Statements") are attached hereto as Schedule 3.6(a) of
the Disclosure Schedules. Each of the Financial Statements and the
Unaudited Financial Statements (i) are correct and complete in all material
respects and have been prepared in accordance with the books and records of
the
Company and its Subsidiaries, (ii) except as set forth on Schedule
3.6(a) of the Disclosure Schedules, have been prepared in accordance
with GAAP applied on a consistent basis throughout the periods indicated (except
as may be indicated in the notes thereto) and (iii) fairly present, in
all material respects, the consolidated financial position, results of
operations and cash flows of the Company and its Subsidiaries as at the
respective dates thereof and for the respective periods indicated therein,
except as otherwise noted therein and except that interim financial statements
omit footnotes and are subject to customary year-end adjustments and
accruals.
(B)
As
of the
date hereof, the Group Indebtedness is €480,600,000 and set forth on Schedule
3.6(b) of the Disclosure Schedules are fair and carefully prepared estimates
(which includes the Group Indebtedness’ estimate as of the date hereof),
produced by the Company in good faith and reflecting the past business history
of the Company, of the amount of Group Indebtedness that will be paid to the
Company if the Closing Date were on the dates indicated in such
schedule.
SECTION
3.7 ABSENCE
OF CERTAIN CHANGES OR EVENTS.
Since
the date of the Balance Sheet: (i) the Company and its Subsidiaries have
conducted their businesses only in the ordinary course consistent with past
practice; (ii) there has not been any Material Adverse Event; (iii) neither
the Company nor any of its Subsidiaries has suffered any material loss, damage,
destruction or other casualty affecting any of its material properties or
assets, whether or not covered by insurance; and (iv) none of the Company or
any
of its Subsidiaries has taken any action that, if taken after the date of this
Agreement, would constitute a breach of any of the covenants set forth in
Section 6.1.
SECTION
3.8 COMPLIANCE
WITH LAW; PERMITS
(A)
To
the
Knowledge of the Company, each of the Company and its Subsidiaries, and the
Material Leased Real Property and the Material Owned Real Property, is and
has
been in compliance in all material respects with all Laws applicable to
it. None of the Company, any of its Subsidiaries or any of its or
their executive officers has received during the past three years, nor, to
the
Knowledge of the Company, is there any basis for, any notice, order, complaint
or other communication from any Governmental Authority or any other Person
that
the Company or any of its Subsidiaries is not in compliance in any material
respect with any Law applicable to it.
(B)
To
the
Knowledge of the Company, each of the Company and its Subsidiaries are in
possession of all permits, licenses, franchises, approvals, certificates,
consents, waivers, concessions, exemptions, orders, registrations, notices
or
other authorizations issued to, or required to be obtained or maintained by,
it
in order to own, lease and operate its properties and to carry on its business
in all material respects as currently conducted (the
"Permits"). To the Knowledge of the Company, the Company and
its Subsidiaries are and have been in compliance in all material respects with
all such Permits. No suspension, cancellation, modification,
revocation or nonrenewal of any Permits is pending or, to the Knowledge of
the
Company, threatened. To the Knowledge of the Company, no Permits are
held in the name of any employee, officer, director, stockholder, agent or
otherwise on behalf of the Company or any of its Subsidiaries.
SECTION
3.9 LITIGATION
. Except
as set forth on Schedule 3.9 of the Disclosure Schedules, there is no
Action (except for any individual Action commenced by Persons other than
Governmental Authorities that would not reasonably be expected to result in
a
liability or loss to the Company or its Subsidiaries of more than
€500,000) pending or, to the Knowledge of the Company, threatened against
the Company or any of its Subsidiaries, or any material property or asset of
the
Company or any of its Subsidiaries, or any of the officers or directors of
the
Company or any of its Subsidiaries, in regards to their actions as such, nor,
to
the Knowledge of the Company, is there any basis for any such
Action. There is no Action pending or, to the Knowledge of the
Company, threatened seeking to prevent, hinder, modify, delay or challenge
the
transactions contemplated by this Agreement. There is no outstanding
order, writ, judgment, injunction, decree, determination or award of, or pending
or, to the Knowledge of the Company, threatened investigation by, any
Governmental Authority relating to the Company, any of its Subsidiaries, any
of
their respective officers or directors (in regards to their actions as such),
any of their respective properties or assets or the transactions contemplated
by
this Agreement. There is no Action by the Company or any of its
Subsidiaries pending, or which the Company or any of its Subsidiaries has
commenced preparations to initiate, against any other Person.
SECTION
3.10 EMPLOYEE
BENEFIT PLANS
(A)
The
Company has made available to the Buyer correct and complete copies of, as
applicable, (i) each material Employee Benefit Plan (or, in the case of any
such material Employee Benefit Plan that is unwritten, descriptions thereof),
(ii) the most recent summary plan description for each material Employee
Benefit Plan and any subsequent summaries of material modifications,
(iii) the most recent determination or opinion letter issued by the United
States Internal Revenue Service, (iv) the most recent annual report filed
on Form 5500 with respect to each material Employee Benefit Plan, and
(v) the most recent actuarial report with respect to any material Employee
Benefit Plan.
(B)
Each
material Employee Benefit Plan has been administered in all material respects
in
accordance with its terms and applicable Law.
(C)
The
Company has received a favorable determination or opinion letter from the United
States Internal Revenue Service with respect to each material Employee Benefit
Plan that is intended to be tax qualified under Section 401(a) of the
United States Internal Revenue Code of 1986, as amended (the "Code"),
and, to the Knowledge of the Company, nothing has occurred since the date of
such letter that could adversely impact the tax-qualified status of any such
Employee Benefit Plan.
(D)
All
contributions, premiums, and benefit payments under or in connection with the
material Employee Benefit Plans that are required to have been made as of the
date hereof in accordance with the terms of such material Employee Benefit
Plans
have been timely made.
(E)
No
Employee Benefit Plan is subject to Title IV of ERISA or is a multiemployer
plan
within the meaning of Section 3(37) of ERISA. Neither the
Company nor any Subsidiary has incurred or would be reasonably expected to
incur
any material liability with respect to any single employer plan subject to
Title
IV of ERISA.
(F)
There
are
no material pending (or, to the Company's Knowledge, threatened) claims
(other than routine benefit claims) or lawsuits that have been asserted or
instituted by, against, or relating to, any Employee Benefit Plan. No
Employee Benefit Plan is or within the preceding two years has been under
investigation, audit or examination (nor has notice been received of a potential
audit or examination) by any Governmental Authority (including the United
States Internal Revenue Service and the United States Department of
Labor).
(G)
No
Employee Benefit Plan contains any provision that would accelerate or vest
any
benefit or require severance, termination or other additional payments or
trigger any additional material liabilities as a result of the transactions
contemplated by this Agreement. No amount, economic benefit or other
entitlement that would be received (whether in cash or property or the vesting
of property) as a result of any of the transactions contemplated by this
Agreement (alone or in combination with any other event) by any Person who
is a "disqualified individual" (as defined in United States Treasury Regulation
Section 1.280G-1) with respect to the Company would be characterized as an
"excess parachute payment" (as defined in Section 280G(b)(1) of the
Code), and no such disqualified individual is entitled to receive any additional
payment from the Company, any of its Subsidiaries or any other Person in the
event that the excise tax required by Section 4999(a) of the Code is
imposed on such disqualified individual.
(H)
(I)
NO
EMPLOYEE BENEFIT PLAN PROVIDES POST-RETIREMENT WELFARE BENEFITS EXCEPT TO THE
EXTENT REQUIRED BY SECTION 4980B OF THE CODE.
SECTION
3.11 LABOR
AND EMPLOYMENT MATTERS
(A)
Except
for the organizations and agreements set forth in Schedule 3.11(a) of the
Disclosure Schedules, to the Knowledge of the Company, none of the Business
Employees is a member of, represented by or otherwise subject to any
(i) trade or labor union, works council, employee consultation/information
body, staff association or similar organization or (ii) collective
bargaining agreement, industry-wide collective bargaining agreement or any
similar collective agreement, in each case with respect to such employee’s
employment by the Company or any Subsidiary of the Company, and the Company
and
its Subsidiaries do not have any obligation (including to inform or consult
with
any such employees or their representatives in respect of the transactions
contemplated by this Agreement) with respect to any such organization or
agreement. Since January 1, 2004, there has been no, and there
currently is no, labor strike, request for representation or recognition, union
organization attempt, slowdown or stoppage actually pending or, to the Knowledge
of the Company, threatened against or affecting the Company or any of its
Subsidiaries. Since January 1, 2004, no question concerning
representation has been raised or is, to the Knowledge of the Company,
threatened respecting the employees of the Company or any of its
Subsidiaries. No grievance or arbitration proceeding arising out of a
collective bargaining or recognition agreement is pending or, to the Knowledge
of the Company, threatened against the Company or any of its
Subsidiaries.
(B)
Since
the
Balance Sheet Date, neither the Company nor any of its Subsidiaries have made,
announced or formally proposed to Business Employees any changes to any Employee
Benefit Plan or to the remuneration of any Business Employee other than in
the
ordinary course of business consistent with past practice as described on
Schedule 3.11(b) of the Disclosure Schedules, and no negotiations are
currently ongoing with any trade/labor union or other similar employee
representatives.
(C)
There
are
no outstanding material amounts owed to any Business Employees (other than
amounts representing remuneration accrued for the current pay period or
reimbursement of expenses).
SECTION
3.12 TITLE
TO AND CONDITION OF ASSETS
(A)
The
Company and its Subsidiaries have good and valid title to or a valid leasehold
interest in all of their material assets, including all of the assets reflected
on the Balance Sheet or acquired in the ordinary course of business since the
date of the Balance Sheet, except those sold or otherwise disposed of for fair
value since the date of the Balance Sheet in the ordinary course of business
consistent with past practice. None of the assets owned or leased by
the Company or any of its Subsidiaries is subject to any Encumbrance, other
than
(i) liens for current Taxes and assessments not yet due and payable,
(ii) mechanics', workmen's, repairmen's, warehousemen's and carriers' liens
arising in the ordinary course of business of the Company or such Subsidiaries
consistent with past practice, (iii) any such matters of record,
Encumbrances and other imperfections of title that do not, individually or
in
the aggregate, materially impair the continued ownership, use and operation
of
the assets to which they relate in the Business, (iv) liens granted
pursuant to the Credit Facility Agreements and which shall be removed prior
to
or at Closing (the "Credit Facilities Liens"), and (v) assets which are
leased and Intellectual Property that is licensed (collectively, "Permitted
Encumbrances").
(B)
All
material tangible assets owned or leased by the Company or its Subsidiaries
have
been maintained in all material respects in accordance with generally accepted
industry practice, are in all material respects in good operating condition
and
repair, ordinary wear and tear excepted, and are adequate for the uses to which
they are being put.
SECTION
3.13 REAL
PROPERTY
(A)
Schedule
3.13 of the Disclosure Schedules sets forth a true and complete list of all
Owned Real Property and all Material Leased Real Property. The
Company and its Subsidiaries have (i) good, insurable and marketable title
in fee simple to all Material Owned Real Property and (ii) good, insurable
and marketable leasehold title to all Material Leased Real Property, in each
case, free and clear of all Encumbrances except Permitted
Encumbrances. No parcel of Material Owned Real Property or Material
Leased Real Property is subject to any governmental decree or order to be sold
or is being condemned, expropriated or otherwise taken by any public authority
with or without payment of compensation therefor, nor, to the Knowledge of
the
Company, has any such condemnation, expropriation or taking been
proposed. To the Knowledge of the Company, all leases of Material
Leased Real Property and all amendments and modifications thereto are in full
force and effect and are valid, binding and enforceable obligations of the
parties thereto, and there exists no default under any such lease by the
Company, any of its Subsidiaries or, to the Knowledge of the Company, any other
party thereto, nor any event which, with notice or lapse of time or both, would
constitute a default thereunder by the Company, any of its Subsidiaries or,
to
the Knowledge of the Company, any other party thereto. All leases of
Material Leased Real Property shall remain valid, binding and enforceable
against the Company or its Subsidiaries in accordance with their terms following
the Closing. The Company has delivered to the Buyer a true, correct
and complete copy of each lease of Material Leased Real Property. No
Material Leased Real Property or Material Owned Real Property has been sublet
or
licensed by the Company, nor has the Company or any of its Subsidiaries granted
any other Person any right to use any Material Leased Real Property or Material
Owned Real Property.
(B)
There
are
no contractual or legal restrictions that preclude or restrict the ability
to
use any Material Owned Real Property or Material Leased Real Property by the
Company or any of its Subsidiaries for the current or contemplated use of such
Material Owned Real Property or Material Leased Real Property, in each case
except as would not, in the aggregate, constitute a Material Adverse
Event. To the Knowledge of the Company, there are no material latent
defects or material adverse physical conditions affecting the Material Owned
Real Property or Material Leased Real Property. All plants,
warehouses, distribution centers, structures and other buildings on the Material
Owned Real Property or Material Leased Real Property are adequately maintained
and are in good operating condition and repair for the requirements of the
Business as currently conducted, in each case except as would not, in the
aggregate, constitute a Material Adverse Event.
SECTION
3.14 INTELLECTUAL
PROPERTY
(A)
Schedule
3.14 of the Disclosure Schedules sets forth a true and complete list of all
registered and unregistered Marks, all Patents, all registered Copyrights,
including any pending applications for Patents or to register any Xxxx or
Copyright or other Intellectual Property right, owned (in whole or in
part) by or exclusively licensed to the Company or any of its Subsidiaries
and material to the operation of the Business as currently conducted
(collectively, the "Scheduled IP"), identifying for each all owners
thereof, the application date and number, any Encumbrances or other interests
held by any third party therein or relating thereto, and, if applicable, the
patent or registration number and the date of issuance.
(B)
No
Xxxx
included in the Scheduled IP has been or is now involved in any opposition,
cancellation or similar proceeding and, to the Knowledge of the Company, no
such
proceeding is or has been threatened with respect to any of such Marks and,
to
the Knowledge of the Company, there is no reasonable basis to support any such
opposition, cancellation or similar proceeding. No Patent included in
the Scheduled IP has been or is now involved in any interference, reissue,
reexamination or similar proceeding and, to the Knowledge of the Company, no
such proceeding is or has been threatened with respect to any of such Patents
and, to the Knowledge of the Company, there is no reasonable basis to support
any such interference, reissue, reexamination or similar
proceeding.
(C)
The
Company or its Subsidiaries exclusively own, free and clear of any and all
Encumbrances (other than Permitted Encumbrances), all Scheduled IP designated
on
Schedule 3.14 of the Disclosure Schedules as owned thereby and all other
Material Intellectual Property other than Material Intellectual Property that
is
licensed to the Company or any of its Subsidiaries by a third party licensor
pursuant to a written license agreement that remains in effect ("Licensed
IP"). Neither the Company nor any of its Subsidiaries has
received any notice or claim challenging its exclusive ownership of any of
the
Material Intellectual Property other than the Licensed IP, nor to the Knowledge
of the Company is there a reasonable basis for any claim that the Company does
not so own any of such Material Intellectual Property. To the
Knowledge of the Company and except as set forth on Schedule 3.14 of the
Disclosure Schedules, (i) all acquisitions of Material Intellectual
Property other than Licensed IP by the Company or any Subsidiary of the Company
have been properly recorded or registered with the appropriate Governmental
Authority or department thereof whenever such recordation or registration is
necessary to protect the Company's or such Subsidiary's rights in or ownership
of such Material Intellectual Property except, in each case, for any defaults
of
registration or recordation that would not, in the aggregate, reasonably be
expected to constitute a Material Adverse Event; and (ii) with regard to
any service inventions ("Diensterfindung") with respect to which
Company or any of its Subsidiaries has been notified on or before the date
hereof by any Business Employee in accordance with Section 5 of the German
Law
on Employee Inventions (§ 5 Arbeitnehmererfindungsgesetz), the
Company or such Subsidiary has timely exercised in writing vis-à-vis such
Business Employee any and all claims under Section 6 of the German Law on
Employee Inventions by means of an unlimited claim.
(D)
Each
of
the Company and its Subsidiaries has taken all reasonable steps in accordance
with standard industry practices to protect its rights in and maintain its
Material Intellectual Property and, to the Knowledge of the Company, at all
times has maintained the confidentiality of all information that constitutes
a
material Trade Secret.
(E)
All
registered Marks, issued Patents and registered Copyrights identified on
Schedule 3.14 of the Disclosure Schedules ("Company Registered
IP") are valid, enforceable and subsisting, and neither the Company nor
any of its Subsidiaries has received any notice or claim challenging the
validity or enforceability of any Company Registered IP or alleging any misuse
of such Company Registered IP, nor to the Knowledge of the Company is there
any
reasonable basis (including misuse of any Intellectual Property) to challenge
the validity or enforceability of any Company Registered IP. Since
January 1, 2004, no registered Xxxx included in the Company Registered IP has
been or is now involved in any opposition or cancellation proceeding and, to
the
Knowledge of the Company, no such proceeding is or has been threatened with
respect to any of such Marks. Since January 1, 2004, no Patent
included in the Company Registered IP has been or is now involved in any
interference, reissue or reexamination proceeding and, to the Knowledge of
the
Company, no such proceeding is or has been threatened with respect to any such
Patents. Since January 1, 2004, neither the Company nor any of its
Subsidiaries has taken any action or failed to take any action that would
reasonably be expected to result in the abandonment, cancellation, forfeiture,
relinquishment, invalidation or unenforceability of any of the Company
Registered IP (including the failure to pay any filing, examination, issuance,
post registration and maintenance fees, annuities and the like and the failure
to disclose any known material prior art in connection with the prosecution
of
patent applications), except for any actions or failure to take any actions
that
would not, in the aggregate, reasonably be expected to constitute a Material
Adverse Event.
(F)
To
the
Knowledge of the Company, since January 1, 2004, the development, manufacture,
sale, distribution or other commercial exploitation of products, and the
provision of any services, by or on behalf of the Company or any of its
Subsidiaries, and all of the other activities or operations of the Company
and
its Subsidiaries, have not infringed upon, misappropriated, violated, diluted
or
constituted the unauthorized use of, any Intellectual Property of any third
party, and none of the Company or any of its Subsidiaries has received any
notice or claim asserting or suggesting that any such infringement,
misappropriation, violation, dilution or unauthorized use is or may be occurring
or has or may have occurred. To the Knowledge of the Company, no
Material Intellectual Property owned by or licensed to the Company or any of
its
Subsidiaries is subject to any outstanding order, judgment, decree, stipulation
or agreement restricting the use or licensing thereof by the Company or its
Subsidiaries. To the Knowledge of the Company, no third party is
misappropriating, infringing, diluting or violating any Material Intellectual
Property owned by or exclusively licensed to the Company or any of its
Subsidiaries.
(G)
Since
January 1, 2004, none of the Company or any of its Subsidiaries has transferred
ownership of, or granted any exclusive license with respect to, any Material
Intellectual Property.
SECTION
3.15 TAXES
. Except
as set forth on Schedule 3.15 of the Disclosure Schedules:
(A)
The
Company and its Subsidiaries have paid or have had paid on their behalf all
material Taxes due and payable. The Company and its Subsidiaries have
properly deducted and transferred all social security contributions and wages
taxes owed under applicable Law. The Company and its Subsidiaries
have filed or have had filed on their behalf on a timely basis with the
appropriate Governmental Authorities all material Returns required to be filed
on or prior to the Closing Date which are required by the applicable Laws of
any
jurisdiction and all such Returns are true, correct, and complete in all
material respects.
(B)
The
Company and its Subsidiaries have established, in accordance with GAAP applied
on a basis consistent with that of preceding periods, adequate reserves on
the
Unaudited Financial Statements for the payment of all unpaid Tax liabilities
of
the Company and its Subsidiaries that have accrued with respect to or are
applicable for all periods through and including the Closing Date.
(C)
To
the
Knowledge of the Company, no investigation, audit or claim by any Governmental
Authority with respect to any income or other material Taxes of the Company
or
any of its Subsidiaries is pending or threatened in writing, and none of the
Company or any of its Subsidiaries has any obligation under any agreement
(either with any Affiliate or any Governmental Authority) with respect to
Taxes.
(D)
No
extensions or waivers of statutes of limitations with respect to any Returns
have been given by or requested from the Company or any of its
Subsidiaries.
(E)
There
are
no liens for Taxes (other than for current Taxes not yet due and
payable) upon the assets of the Company or any of its
Subsidiaries.
(F)
To
the
Knowledge of the Company, none of the Company or any of its Subsidiaries has
any
liability for Taxes due by or attributable to any other Person under any
applicable Tax law, as transferee or successor, as withholding agent, or by
contract or otherwise.
SECTION
3.16 ENVIRONMENTAL
MATTERS
(A)
To
the
Knowledge of the Company, each of the Company and its Subsidiaries is and has
been in compliance with all Environmental Laws. None of the Company,
any of its Subsidiaries or any of its or their executive officers has received,
nor, to the Knowledge of the Company, is there any basis for, any written or
oral communication or complaint from a Governmental Authority or other Person
alleging that the Company or its Subsidiaries has any liability under any
Environmental Law or is not in compliance with any Environmental
Law.
(B)
To
the
Knowledge of the Company, there is and has been no Release or threatened Release
of Hazardous Substances nor any clean-up or corrective action of any kind
relating thereto, at, on or under (i) any properties (including any
buildings, structures, improvements, soils and surface, subsurface and ground
waters thereof) currently or formerly owned, leased or operated by or for
the Company, its Subsidiaries or any of their respective predecessors in
interest, (ii) any location to which the Company or its Subsidiaries has
sent any waste for disposal, or (iii) any other location with respect to
which the Company or its Subsidiaries may be liable. To the Knowledge
of the Company, no underground improvement, including any treatment or storage
tank, or water, gas, or oil well, is or has been located on any property
described in the foregoing sentence. To the Knowledge of the Company,
neither the Company nor its Subsidiaries is or has been actually liable for
any
Release, threatened Release, or contamination, of or by Hazardous Substances,
or
otherwise under any Environmental Law. Since January 1, 2004, there
has been no pending or, to the Knowledge of the Company, threatened
investigation by any Governmental Authority, nor any pending or, to the
Knowledge of the Company, threatened Action with respect to the Company or
its
Subsidiaries relating to Hazardous Substances or otherwise under any
Environmental Law.
(C)
To
the
Knowledge of the Company, each of the Company and its Subsidiaries has obtained
all Environmental Permits and is and has been in compliance
therewith. To the Knowledge of the Company, neither the execution,
delivery or performance of this Agreement nor the consummation of the
transactions contemplated hereby will (i) require any notice to or consent
of
any Governmental Authority or other Person pursuant to any applicable
Environmental Law or Environmental Permit or (ii) subject any Environmental
Permit to suspension, cancellation, modification, revocation or
nonrenewal.
(D)
The
Company and its Subsidiaries have provided to the Buyer all "Phase I",
"Phase II" and other environmental assessment reports in their possession
addressing properties or locations ever owned, operated or leased by the Company
or any of its Subsidiaries or any of their respective predecessors in interest
or at which the Company or any of its Subsidiaries actually, potentially or
allegedly may have liability under any Environmental Law.
(E)
To
the
Knowledge of the Company, neither the Company nor its Subsidiaries has been
subject to any actual or threatened claims or litigation arising out of alleged
exposure to asbestos or asbestos containing material, or has ever manufactured,
produced, repaired, sold, conveyed, installed, or otherwise put into the stream
of commerce any product, part, component, merchandise, manufactured good, or
other item, comprised of or containing asbestos.
SECTION
3.17 MATERIAL
CONTRACTS
(A)
Except
as
set forth on Schedule 3.17 of the Disclosure Schedules, neither the
Company nor any of its Subsidiaries is a party to or is bound by any Contract
of
the following nature (such Contracts as are required to be set forth on
Schedule 3.17 of the Disclosure Schedules, together with the
Contracts listed on Schedules 3.20(a) and 3.20(b), being
"Material Contracts"):
(I) ANY
CONTRACT RELATING TO OR EVIDENCING INDEBTEDNESS OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES, INCLUDING MORTGAGES, OTHER GRANTS OF SECURITY INTERESTS,
GUARANTEES OR NOTES IN EXCESS OF €500,000;
(II) ANY
CONTRACT PURSUANT TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES HAS PROVIDED
FUNDS TO OR MADE ANY LOAN, CAPITAL CONTRIBUTION OR OTHER INVESTMENT IN, OR
ASSUMED ANY LIABILITY OR OBLIGATION OF, ANY PERSON, INCLUDING TAKE-OR-PAY
CONTRACTS IN EXCESS OF €500,000;
(III) ANY
MATERIAL CONTRACT WITH ANY GOVERNMENTAL AUTHORITY (OTHER THAN CONTRACTS PURSUANT
TO WHICH A GOVERNMENTAL AUTHORITY IS MERELY A CUSTOMER OF THE COMPANY OR ITS
SUBSIDIARIES);
(IV) ANY
CONTRACT WITH ANY RELATED PARTY OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES;
(V) ANY
EMPLOYMENT CONTRACT, OTHER THAN CONTRACTS FOR EMPLOYMENT COVERED IN CLAUSE
(IV),
THAT INVOLVES GROSS REMUNERATION IN EXCESS OF €150,000;
(VI) ANY
CONTRACT THAT LIMITS, OR PURPORTS TO LIMIT, THE ABILITY OF THE COMPANY OR ANY
OF
ITS SUBSIDIARIES TO COMPETE IN ANY LINE OF BUSINESS OR WITH ANY PERSON OR IN
ANY
GEOGRAPHIC AREA OR DURING ANY PERIOD OF TIME, OR THAT RESTRICTS THE RIGHT OF
THE
COMPANY OR ANY OF ITS SUBSIDIARIES TO SELL TO OR PURCHASE FROM ANY
PERSON;
(VII) ANY
MATERIAL CONTRACT THAT REQUIRES A CONSENT TO OR OTHERWISE CONTAINS A PROVISION
RELATING TO A "CHANGE OF CONTROL," OR THAT WOULD PROHIBIT THE CONSUMMATION
OF
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT;
(VIII) ANY
CONTRACT PURSUANT TO WHICH THE COMPANY OR ANY OF ITS SUBSIDIARIES IS THE LESSEE
OR LESSOR OF, OR HOLDS, USES, OR MAKES AVAILABLE FOR USE TO ANY PERSON (OTHER
THAN THE COMPANY OR A SUBSIDIARY THEREOF), (A) ANY MATERIAL OWNED REAL
PROPERTY OR MATERIAL LEASED REAL PROPERTY OR (B) ANY TANGIBLE PERSONAL
PROPERTY THAT IS MATERIAL TO THE OPERATION OF THE BUSINESS AS CURRENTLY
CONDUCTED AND, IN THE CASE OF CLAUSE (B), THAT INVOLVES ANNUAL EXPENDITURES
IN
EXCESS OF €500,000;
(IX) ANY
CONTRACT FOR THE SALE OR PURCHASE OF ANY REAL PROPERTY, OR FOR THE SALE OR
PURCHASE OF ANY TANGIBLE PERSONAL PROPERTY IN AN AMOUNT IN EXCESS OF
€500,000;
(X) ANY
CONTRACT PROVIDING FOR INDEMNIFICATION FROM ANY PERSON WITH RESPECT TO
LIABILITIES RELATING TO THE ACQUISITION OF ANY CURRENT BUSINESS OF THE COMPANY,
ANY OF ITS SUBSIDIARIES OR ANY PREDECESSOR PERSON, WHICH LIABILITIES, REASONABLY
COULD BE EXPECTED TO INVOLVE AGGREGATE FUTURE RECEIVABLES, AS THE CASE MAY
BE,
IN EXCESS OF €500,000 ("PRIOR ACQUISITION
AGREEMENTS");
(XI) ANY
MATERIAL CONTRACT RELATING IN WHOLE OR IN PART TO ANY LICENSED IP
EXCLUSIVELY LICENSED TO OR FROM THE COMPANY OR ITS SUBSIDIARIES OR OTHERWISE
INVOLVING ANNUAL PAYMENTS IN EXCESS OF €500,000 (OTHER THAN STANDARD CONTRACTS
FOR OFF-THE-SHELF COMMERCIAL SOFTWARE IN CONNECTION WITH WHICH ANNUAL
EXPENDITURES BY THE COMPANY OR ITS SUBSIDIARIES HAS NOT AND SHALL NOT EXCEED
€100,000);
(XII) ANY
JOINT VENTURE OR PARTNERSHIP, MERGER, ASSET OR STOCK PURCHASE OR DIVESTITURE
CONTRACT;
(XIII) ANY
CONTRACT WITH ANY LABOR UNION;
(XIV) ANY
CONTRACT FOR THE PURCHASE OF ANY DEBT OR EQUITY SECURITY OR OTHER OWNERSHIP
INTEREST OF ANY PERSON, OR FOR THE ISSUANCE OF ANY DEBT OR EQUITY SECURITY
OR
OTHER OWNERSHIP INTEREST, OR THE CONVERSION OF ANY OBLIGATION, INSTRUMENT OR
SECURITY INTO DEBT OR EQUITY SECURITIES OR OTHER OWNERSHIP INTERESTS OF, THE
COMPANY OR ANY OF ITS SUBSIDIARIES;
(XV) ANY
CONTRACT RELATING TO SETTLEMENT OF ANY ADMINISTRATIVE OR JUDICIAL PROCEEDINGS
WITHIN THE PAST FIVE YEARS AND PURSUANT TO WHICH THE COMPANY OR ANY OF ITS
SUBSIDIARIES HAVE MATERIAL CONTINUING CONTRACTUAL
OBLIGATIONS;
(XVI) ANY
CONTRACT THAT RESULTS IN ANY PERSON HOLDING A POWER OF ATTORNEY FROM THE COMPANY
OR ANY OF ITS SUBSIDIARIES THAT RELATES TO THE COMPANY, ANY OF ITS SUBSIDIARIES
OR THE BUSINESS;
(XVII) ANY
CONTRACT WITH SCHLUMBERGER N.V. OR ANY OF ITS AFFILIATES;
(XVIII) ANY
CONTRACT WITH GEMALTO N.V. OR ANY OF ITS AFFILIATES (OTHER THAN AXALTO HOLDING
N.V.); AND
(XIX) ANY
CONTRACT UNDER WHICH THE CONSEQUENCE OF A DEFAULT OR TERMINATION WOULD
CONSTITUTE A MATERIAL ADVERSE EVENT.
(B)
To
the
Knowledge of the Company, each Material Contract is a legal, valid, binding
and
enforceable agreement and is in full force and effect. None of the
Company or any of its Subsidiaries or, to the Knowledge of the Company, any
other party is in breach or violation of, or (with or without notice or lapse
of
time or both) default under, any Material Contract, nor has the Company or
any of its Subsidiaries received written notice of any claim of any such breach,
violation or default. The Company has delivered or made available to
the Buyer true and complete copies of all Material Contracts, including any
amendments thereto.
SECTION
3.18 AFFILIATE
INTERESTS AND TRANSACTIONS
. Except
as set forth on Schedule 3.18 of the Disclosure Schedules, to the
Knowledge of the Company, no Related Party (except for any Immediate Family
member) of the Company or any of its Subsidiaries: (i) owns,
directly or indirectly, any equity or voting interest in any competitor of
the
Company or any of its Subsidiaries; (ii) owns, directly or indirectly, or
has any interest in any property (real or personal, tangible or
intangible) that the Company or any of its Subsidiaries uses or has used in
or pertaining to the Business; or (iii) has any business dealings or a
financial interest in any transaction with the Company or any of its
Subsidiaries or involving any assets or property of the Company or any of its
Subsidiaries, other than business dealings or transactions conducted in the
ordinary course of business at prevailing market prices and on prevailing market
terms.
SECTION
3.19 INSURANCE
. Schedule
3.19 of the Disclosure Schedules sets forth a true and complete list of all
casualty, directors and officers liability, general liability, product
liability, title and all other types of insurance maintained with respect to
the
Company or any of its Subsidiaries, together with the carriers and liability
limits for each such policy. To the Knowledge of the Company, all
such policies are in full force and effect and no application therefor included
a material misstatement or omission. Since January 1, 2004, no notice
of cancellation, termination or reduction of coverage has been received with
respect to any such policy. No claim currently is pending under any
such policy involving an amount in excess of €500,000. Schedule
3.19 of the Disclosure Schedules identifies which insurance policies are
"occurrence" or "claims made" and which Person is the policy
holder. All material insurable risks in respect of the Business are
covered by such insurance policies and the types and amounts of coverage
provided therein are usual and customary in the context of the
Business.
SECTION
3.20 CUSTOMERS
AND SUPPLIERS
(A)
Schedule
3.20(a) of the Disclosure Schedules sets forth a true and complete list of
the top 25 customers and/or distributors (including the Stockholders and their
Affiliates) of each of the gas, water and electricity business units of the
Business. None of the Company or any of its Subsidiaries has received
any notice or, to the Knowledge of the Company, has any reason to believe that
any of such customers has ceased or substantially reduced, or will cease or
substantially reduce, use of products or services of the Company or its
Subsidiaries.
(B)
Schedule
3.20(b) of the Disclosure Schedules sets forth a true and complete list of
the top 15 suppliers (including the Stockholders and their Affiliates) of
each of the gas, water and electricity business units of the
Business. None of the Company or any of its Subsidiaries has received
any notice or, to the Knowledge of the Company, has any reason to believe that
there has been any material adverse change in the price of such supplies or
services provided by any such supplier, or that any such supplier will not
sell
supplies or services to the Company and its Subsidiaries at any time after
the
Closing on terms and conditions substantially the same as those used in its
current sales to the Company and its Subsidiaries, subject to general and
customary price increases consistent with past practice.
SECTION
3.21 PRODUCT
LIABILITY
. Except
as set forth on Schedule 3.21 of the Disclosure Schedules, to the
Knowledge of the Company, there is no basis for any product liability, warranty,
material backcharge, material additional work, field repair or other claims
by
any third party (whether based on contract or tort and whether relating to
personal injury, including death, property damage or economic loss) arising
from the sale, distribution, erection or installation of products by the Company
or any of its Subsidiaries, or the manufacture of products by the Company or
any
of its Subsidiaries, except for any such claims that could not reasonably be
expected to result in a liability or loss to the Company or its Subsidiaries
of
more than €550,000.
SECTION
3.22 GOVERNMENT
CONTRACTS
. None
of the Company or its Subsidiaries have ever been, nor, to the Knowledge of
the
Company, as a result of the consummation of the transactions contemplated by
this Agreement will the Company or its Subsidiaries be, suspended or debarred
from bidding on contracts or subcontracts for any Governmental Authority, nor,
to the Knowledge of the Company, has such suspension or debarment been
threatened or action for suspension or debarment been commenced.
SECTION
3.23 ORDERS
AND WARRANTIES
. Set
forth on Schedule 3.23 of the Disclosure Schedules is an accurate summary
in all material respects as of February 20, 2007, prepared consistent with
past
practice, of the total backlog (including all accepted and unfulfilled service
contracts) of the Company and its Subsidiaries. The Buyer has
been provided an accurate description in all material respects of the standard
warranty policies of the Company and its Subsidiaries.
SECTION
3.24 EXPORT
CONTROLS AND TRADE SANCTIONS
(A)
Except
for matters as would not, individually or in the aggregate, constitute a
Material Adverse Event, the Company and its Subsidiaries have complied with
all
statutory and regulatory requirements relating to export controls and trade
sanctions under the Laws of each jurisdiction in which the Company, its
Subsidiaries and their respective Affiliates are doing business.
(B)
None
of
the Company or any of its Subsidiaries have (i) received notice from any
Governmental Authority of violations of trade and export regulations or
(ii) made any voluntary disclosures to any Governmental Authority or other
Person of facts that would reasonably be expected to result in any adverse
action being taken by a Governmental Authority against the Company or any of
its
Subsidiaries with respect to export authorizations in the future.
(C)
To
the
Knowledge of the Company, no Governmental Authority or other Person has notified
the Company or any of its Subsidiaries in writing of any actual or alleged
violation or breach of any statute, regulation, representation, certification,
disclosure obligation, licensing obligation or other authorization or provision
relating to export controls or trade sanctions.
(D)
To
the
Knowledge of the Company, none of the Company or any of its Subsidiaries has
undergone or is undergoing any audit, review, inspection, investigation, survey
or examination of records relating to the Company's or any of its Subsidiaries'
export activity that would, individually or in the aggregate, reasonably be
expected to adversely affect its future export activity in any material respect
or otherwise result in sanctions by any Governmental Authority that would,
individually or in the aggregate, constitute a Material Adverse Event and,
to
the Knowledge of the Company, there is no basis for any such audit, review,
inspection, investigation, survey or examination of records.
SECTION
3.25 BROKERS
. No
broker, finder or investment banker is entitled to any brokerage, finder's
or
other fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of the Stockholders, the Company
or
any of its Subsidiaries.
REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDERS
Except
as
set forth in the corresponding sections or subsections of the Disclosure
Schedules, each of the Stockholders (it being understood that, with respect
to
each Stockholder that is a Fonds commun de placement à risques
("FCPR"), references to such Stockholder in Section 4.2 and
Section 4.3 shall be deemed to be references to such
Stockholder and, it
being further understood, that each FCPR is represented by its management
company) hereby severally and not jointly represents and warrants to the Buyer
as follows:
SECTION
4.1 ORGANIZATION
. Such
Stockholder is a corporation or an FCPR, as applicable, duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, if applicable, and has full corporate power and authority, or
legal capacity, as applicable, to own the Common Stock and the amount of the
Convertible Bonds set forth opposite such Stockholder's name on Exhibit
A.
SECTION
4.2 AUTHORITY
. Such
Stockholder has full corporate power and authority, or legal capacity, as
applicable, to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The
execution, delivery and performance by such Stockholder of this Agreement and
the consummation by such Stockholder of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action or
otherwise duly and properly taken. This Agreement has been duly and
validly executed and delivered by such Stockholder. This Agreement
constitutes the legal, valid and binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar Laws in effect which affect the
enforcement of creditor’s rights generally and by equitable
principles.
SECTION
4.3 NO
CONFLICT; REQUIRED FILINGS AND CONSENTS
(A)
The
execution, delivery and performance by such Stockholder of this Agreement and
the consummation of the transactions contemplated hereby do not and will
not:
(I) CONFLICT
WITH OR VIOLATE THE ARTICLES OF INCORPORATION OR BYLAWS, OR EQUIVALENT GOVERNING
INSTRUMENTS, IF APPLICABLE, OF SUCH STOCKHOLDER;
(II) CONFLICT
WITH OR VIOLATE ANY LAW APPLICABLE TO SUCH STOCKHOLDER; OR
(III) RESULT
IN ANY BREACH OF, CONSTITUTE A DEFAULT (OR AN EVENT THAT, WITH NOTICE OR LAPSE
OF TIME OR BOTH, WOULD BECOME A DEFAULT) UNDER OR REQUIRE ANY CONSENT OF
ANY PERSON PURSUANT TO, ANY NOTE, BOND, MORTGAGE, INDENTURE, AGREEMENT, LEASE,
LICENSE, PERMIT, FRANCHISE, INSTRUMENT, OBLIGATION OR OTHER CONTRACT TO WHICH
SUCH STOCKHOLDER IS A PARTY.
SECTION
4.4 OWNERSHIP
OF COMMON STOCK AND CONVERTIBLE BONDS
. Such
Stockholder is the record and beneficial owner of the Common Stock and of the
amount of the Convertible Bonds set forth opposite such Stockholder's name
on
Exhibit A, free and clear of any Encumbrance. Such Stockholder
has the right, authority and power to sell, assign and transfer such Common
Stock and such Convertible Bonds to the Buyer. Upon delivery to the
Buyer of certificates for such Common Stock and instruments representing the
transfer of such Convertible Bonds at the Closing and the Buyer's payment of
the
amount of the Purchase Price set forth opposite such Stockholder’s name on
Exhibit A (as calculated in accordance with Section 2.1(a)), the
Buyer shall acquire good, valid and marketable title to such Common Stock and
such Convertible Bonds, free and clear of any Encumbrance.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
The
Buyer
hereby represents and warrants to the Company and the Stockholders as
follows:
SECTION
5.1 ORGANIZATION
. The
Buyer is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Washington and has full corporate power and
authority to own, lease and operate its properties and to carry on its business
as it is now being conducted.
SECTION
5.2 AUTHORITY
. The
Buyer has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and
performance by the Buyer of this Agreement and the consummation by the Buyer
of
the transactions contemplated hereby have been duly and validly authorized
by
all necessary corporate action. This Agreement has been duly and
validly executed and delivered by the Buyer. This Agreement
constitutes the legal, valid and binding obligation of the Buyer, enforceable
against the Buyer in accordance with its terms.
SECTION
5.3 NO
CONFLICT; REQUIRED FILINGS AND CONSENTS
(A)
The
execution, delivery and performance by the Buyer of this Agreement and the
consummation of the transactions contemplated hereby do not and will
not:
(I) CONFLICT
WITH OR VIOLATE THE CERTIFICATE OF INCORPORATION OR BYLAWS OF THE
BUYER;
(II) CONFLICT
WITH OR VIOLATE ANY LAW APPLICABLE TO THE BUYER; OR
(III) RESULT
IN ANY BREACH OF, CONSTITUTE A DEFAULT (OR AN EVENT THAT, WITH NOTICE OR LAPSE
OF TIME OR BOTH, WOULD BECOME A DEFAULT) UNDER OR REQUIRE ANY CONSENT OF
ANY PERSON PURSUANT TO, ANY NOTE, BOND, MORTGAGE, INDENTURE, AGREEMENT, LEASE,
LICENSE, PERMIT, FRANCHISE, INSTRUMENT, OBLIGATION OR OTHER CONTRACT TO WHICH
THE BUYER IS A PARTY;
except,
in each case, for any such conflicts, violations, breaches, defaults or other
occurrences that could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the ability of the Buyer to
perform its obligations under this Agreement or to consummate the transactions
contemplated hereby.
(B)
The
Buyer
is not required to file, seek or obtain any notice, authorization, approval,
order, permit or consent of or with any Governmental Authority in connection
with the execution, delivery and performance by the Buyer of this Agreement
or
the consummation of the transactions contemplated hereby, except for any filings
required to be made under the German Act, the Spanish Act, the Brazilian Act,
the Portuguese Act and the Ukrainian Act.
SECTION
5.4 FINANCING
. The
Buyer shall have immediate access to funds at the Closing which constitute
the
funds necessary to pay the Purchase Price and consummate the transactions
contemplated by this Agreement, including the (i) the repayment of the Group
Indebtedness and (ii) the payment of fees and expenses that are for its
account.
SECTION
5.5 BROKERS
. Except
for UBS Securities LLC, the fees of which will be paid by the Buyer, no broker,
finder or investment banker is entitled to any brokerage, finder's or other
fee
or commission in connection with the transactions contemplated hereby based
upon
arrangements made by or on behalf of the Buyer.
SECTION
5.6 THE
BUYER’S EXAMINATION
. The
Buyer and its Representatives have been given access to a “data room” between
December 19, 2006 and February 22, 2007 (the “Data Room”), and have
received or been given access to all of the information described or referred
to
in this Agreement. The Buyer and its Representatives have been
afforded the opportunity to meet with, ask questions of and receive answers
from
the management of the Company and its Subsidiaries in connection with the
determination by the Buyer to enter into this Agreement and consummate the
transactions contemplated hereby. The content of the Data Room has been moved
to
the offices of Xxxxxx, Xxxx & Xxxxxxxx LLP located at 000 Xxxxxx Xxxxxx,
0000 Xxxxxxxx, Xxxxxxx, just prior to the date hereof. The Buyer and
its Representatives will continue to have access to the Data Room until
Closing. The content of the Data Room together with any written
answers given to the Buyer and/or its Representatives will be compiled on a
CD-ROM under the supervision of the Buyer and the Stockholders, a copy of which
will be delivered to the Buyer and the Stockholders on or prior to the Closing
Date.
SECTION
5.7 INVESTIGATION;
LIMITATION ON WARRANTIES.
(A)
The
Buyer
acknowledges and agrees that neither the Company nor any of its Subsidiaries,
nor any other Person acting on behalf of the Company or any of their respective
Affiliates or representatives has made any representation or warranty, express
or implied, as to the accuracy or completeness of any information regarding
the
Company or any of its Subsidiaries or their respective businesses or assets,
except as expressly set forth in this Agreement or as and to the extent required
by this Agreement to be set forth in the Disclosure Schedules. The
Buyer further agrees that no Stockholder or any other Person will have or be
subject to any liability to the Buyer or any other Person, nor will the Buyer
or
any other Person be entitled to make an indemnification claim, resulting from
the distribution or use by the Buyer, any Affiliate thereof or any of their
Representatives of any such information and any legal opinions, memoranda,
summaries or any other information, documents or materials made available to
the
Buyer or its Affiliates or Representatives in the Data Room, certain management
presentations or any other form otherwise provided in expectation of the
transactions contemplated by this Agreement.
(B)
The
Buyer
acknowledges and agrees that except for the Core Representations, the Shares
and
the Convertible Bonds are being acquired AS IS WITHOUT ANY IMPLIED WARRANTY
OF
MERCHANTABILITY OR FITNESS FOR INTENDED USE OR OTHER EXPRESSED OR IMPLIED
WARRANTY. The Buyer acknowledges and agrees that it is consummating
the transactions hereunder without any representation or warranty, express
or
implied, by any Person, except for the representations and warranties expressly
set forth in this Agreement.
(C)
The
Buyer
acknowledges that it is relying on its own investigation and analysis in
entering into the transactions contemplated hereby. The Buyer is
knowledgeable about the industries in which the Company and its Subsidiaries
operate and is capable of evaluating the merits and risks of the transactions
contemplated by this Agreement and is able to bear the substantial economic
risk
of such investment for an indefinite period of time. The Buyer has
fully reviewed this Agreement, the Disclosure Schedules, the materials
referenced therein and the materials in the Data Room relating to the
transactions contemplated by this Agreement. The Buyer does not have
any knowledge that the representations and warranties of the Company in this
Agreement and the Disclosure Schedules are not true and correct in all material
respects and the Buyer does not have any knowledge of any material errors in,
or
material omissions from, the Disclosure Schedules and the Data
Room.
(D)
In
connection with the Buyer’s investigation of the Company and its Subsidiaries,
the Buyer has received from or on behalf of the Company certain projections,
including projected statements of operating revenues and income from operations
of the Company and its Subsidiaries, and certain business plan information
of
the Company and its Subsidiaries. The Buyer acknowledges that there
are uncertainties inherent in attempting to make such estimates, projections
and
other forecasts and plans, that the Buyer is familiar with such uncertainties,
that the Buyer is taking full responsibility for making its own evaluation
of
the adequacy and accuracy of all estimates, projections and other forecasts
and
plans so furnished to it (including the reasonableness of the assumptions
underlying such estimates, projections and forecasts), and that the Buyer shall
have no claim against any Person with respect thereto. Accordingly,
the Company and the Stockholders make no representations or warranties
whatsoever with respect to such estimates, projections and other forecasts
and
plans (including the reasonableness of the assumptions underlying such
estimates, projections and forecasts).
SECTION
5.8 SOLVENCY
. Immediately
after giving effect to the Closing and the transactions contemplated by this
Agreement, the Buyer and each of its Subsidiaries shall be able to pay their
respective debts as they become due and shall own property which has a fair
saleable value greater than the amounts required to pay their respective debts
(including a reasonable estimate of the amount of all contingent
liabilities). Immediately after giving effect to the transactions
contemplated by this Agreement, the Buyer and each of its Subsidiaries shall
have adequate capital to carry on their respective businesses. No
transfer of property is being made and no obligation is being incurred in
connection with the transactions contemplated by this Agreement with the intent
to hinder, delay or defraud either present or future creditors of the Company
or
its Subsidiaries.
SECTION
5.9 ACQUISITION
FOR INVESTMENT
. The
Shares and Convertible Bonds acquired by the Buyer pursuant to this Agreement
are being acquired for investment only and not with a view to any public
distribution thereof, and the Buyer will not offer to sell or otherwise dispose
of such Shares or Convertible Bonds in violation of any of the registration
requirements of any securities Laws or other Laws. The Buyer is an
"accredited investor" within the meaning of Regulation D promulgated pursuant
to
the Securities Act of 1933, as amended.
SECTION
5.10 REPAYMENT
OF THE CREDIT FACILITY AGREEMENTS
. The
Company shall have obtained and communicated to the Purchaser on or prior to
the
Closing a statement from the lenders under the Credit Facilities Agreement
listing all Credit Facilities Liens, expressing that the Credit Facilities
Liens
shall be released at Closing, upon and subject to full repayment to such lenders
of the Group Indebtedness, and whereby the lenders undertake to provide all
reasonably required assistance for the purpose of making effective such
releases.
Subject
to the delivery of the above statement, and to the Company's commitment to
provide all reasonably required assistance in connection therewith, the Buyer
shall be solely responsible of obtaining of the release of the Credit Facilities
Liens.
At
Closing, the Buyer shall, in addition to the payment of the Purchase Price,
pay
in cash into the Company’s bank account an amount sufficient for the Company and
its Subsidiaries to repay the Group Indebtedness with value date (date de
valeur) at the Closing Date, in accordance with the terms and conditions of
the Credit Facility Agreements.
ARTICLE
VI
COVENANTS
SECTION
6.1 CONDUCT
OF BUSINESS PRIOR TO THE CLOSING
. Except
as set forth on Exhibit F, between the date of this Agreement and the
Closing Date, unless the Buyer shall otherwise consent in writing (such consent
not to be unreasonably withheld or delayed), the Company shall conduct the
Business only in the ordinary course of business consistent with past practice,
and shall take reasonable steps to preserve substantially intact the
organization of the Business. By way of amplification and not
limitation, between the date of this Agreement and the Closing Date, the Company
and its Subsidiaries shall not do or propose to do, directly or indirectly,
any
of the following without the prior written consent of the Buyer:
(A)
amend
or
otherwise change its articles of organization or bylaws, or equivalent
organizational documents;
(B)
except
as
set forth on Exhibit G, issue, sell, pledge, dispose of or otherwise
subject to any Encumbrance any shares of capital stock of the Company or any
of
its Subsidiaries, or any options, warrants, convertible securities or other
rights of any kind to acquire any such shares, or any other ownership interest
in the Company or any of its Subsidiaries, or any material assets of the Company
or any of its Subsidiaries (other than sales or transfers of inventory in the
ordinary course of business consistent with past practice);
(C)
except
as
set forth on Exhibit H, declare, set aside, make or pay any dividend or
other distribution, payable in cash, stock, property or otherwise, or make
any
other payment on or with respect to any of its capital stock;
(D) EXCEPT
AS SET FORTH ON EXHIBIT
H,
reclassify,
combine, split, subdivide or redeem, or purchase or otherwise acquire, directly
or indirectly, any of its capital stock or make any other change with respect
to
its capital structure;
(E)
except
as
set forth on Exhibit I, acquire any corporation, partnership, limited
liability company, other business organization or division thereof or any
material amount of assets, or enter into any joint venture, strategic alliance,
exclusive dealing, noncompetition or similar contract or
arrangement;
(F)
except
as
set forth on Exhibit J, adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring, recapitalization or other
reorganization of the Company or any of its Subsidiaries, or otherwise alter
the
Company's or any of its Subsidiaries' corporate structure;
(G)
incur
any
indebtedness for borrowed money or issue any debt securities or assume,
guarantee or endorse, or otherwise become responsible for, the obligations
of
any Person, or make any loans or advances, or draw any additional amount under
existing lines of credit, subject to the prior approval of the Buyer, which
shall not be unreasonably withheld; provided that in no event shall the
Company or any of its Subsidiaries incur, assume or guarantee any long-term
indebtedness for borrowed money;
(H)
materially
amend, waive, modify or consent to the termination of any Material Contract,
or
materially amend, waive, modify or consent to the termination of the Company's
or any of its Subsidiaries' rights thereunder, or enter into any Contract other
than in the ordinary course of business consistent with past
practice;
(I)
authorize,
or make any commitment with respect to, any single capital expenditure that
is
in excess of €500,000 or capital expenditures that are, in the aggregate, in
excess of €500,000 for the Company and its Subsidiaries taken as a
whole;
(J)
enter
into any lease of real or personal property or any renewals thereof involving
rental obligations exceeding €500,000 per year in any single case;
(K)
increase
the compensation payable or to become payable, or the benefits provided to,
its
directors, officers or employees, except for normal merit and cost-of-living
increases consistent with past practice in salaries or wages of employees of
the
Company or any of its Subsidiaries who are not directors or officers of the
Company or any of its Subsidiaries and who receive less than €100,000 in total
annual cash compensation from the Company or any of its Subsidiaries, or grant
any severance or termination payment to, or pay, loan or advance any amount
to,
any director, officer or employee of the Company or any of its Subsidiaries,
or
establish, adopt, enter into or amend any Employee Benefit Plan;
(L)
enter
into any Contract with any Related Party of the Company or any of its
Subsidiaries;
(M)
make
any
material change in any method of accounting or accounting practice or policy,
except as required by GAAP;
(N)
make
any
tax election, settle or compromise any income Tax liability or file any Return
other than on a basis consistent with past practice;
(O)
pay,
discharge or satisfy any claim, liability or obligation (absolute, accrued,
asserted or unasserted, contingent or otherwise), other than the payment,
discharge or satisfaction, in the ordinary course of business consistent with
past practice, of liabilities reflected or reserved against on the Balance
Sheet
or subsequently incurred in the ordinary course of business consistent with
past
practice;
(P)
permit
the cancellation of any existing policy of insurance;
(Q)
cancel,
compromise, waive or release any right of claim other than in the ordinary
course of business consistent with past practice;
(R)
permit
the lapse of any material right relating to Intellectual Property or any other
intangible asset;
(S)
accelerate
the collection of or discount any accounts receivable, delay the payment of
any
accounts payable or defer expenses, reduce inventories or otherwise increase
cash on hand, except in the ordinary course of business consistent with past
practice;
(T)
commence
or settle any Action in excess of €500,000; or
(U)
announce
an intention, enter into any formal agreement, or otherwise make a commitment
to
do any of the foregoing.
SECTION
6.2 COVENANTS
REGARDING INFORMATION
. From
the date hereof until the Closing Date, the Company shall, and shall cause
its
Subsidiaries to, afford the Buyer and its officers, directors, principals,
employees, advisors, auditors, agents and other representatives (collectively,
"Representatives") reasonable access (including for inspection and
copying) at all reasonable times to the Representatives, properties, offices,
plants and other facilities, books and records of the Company and each of its
Subsidiaries, and shall furnish the Buyer with such financial, operating and
other data and information as the Buyer may reasonably request, in each case
to
the extent that such access and disclosure would not obligate the Company or
the
Subsidiaries to take any actions that would unreasonably disrupt the normal
course of their businesses or violate the terms of any Contract to which the
Company or the Subsidiaries is bound or any applicable law or regulation. All
requests for access shall be directed to the Stockholder Representative or
such
other Person as the Company may designate in writing from time to time (the
"Designated Contacts"). Notwithstanding anything in this Section
6.2 to the contrary, the Company shall not be required to provide
access or to disclose any information to the Buyer if such access or disclosure
(i) would cause significant competitive harm to the Company or its Subsidiaries
if the transactions contemplated by this Agreement are not consummated or (ii)
would be in violation of applicable Laws or regulations of any Governmental
Authority (including anti-competition Laws) or the provisions of any agreement
to which the Company or any of its Subsidiaries is a party. Other
than the Designated Contacts, the Buyer is not authorized to and shall not
(and
shall cause its Representatives and Affiliates not to) contact any officer,
director, employee, franchisee, customer, supplier, distributor, lender or
other
material business relation of the Company or any of its Subsidiaries in
connection with the transactions contemplated hereby prior to the Closing
without the prior written consent of the Company.
SECTION
6.3 EXCLUSIVITY
. Each
of the Stockholders and the Company agree that between the date of this
Agreement and the earlier of the Closing and the termination of this Agreement,
it shall not, and shall take all action necessary to ensure that none of the
Subsidiaries of the Company or any of their respective Affiliates or
Representatives shall:
(A)
solicit,
initiate, consider, encourage or accept any other proposals or offers from
any
Person (i) relating to any direct or indirect acquisition or purchase of
all or any portion of the Business, the Shares or the Convertible Bonds, whether
effected by sale of assets, sale of stock, merger or otherwise, other than
inventory to be sold in the ordinary course of business consistent with past
practice or (ii) to enter into a recapitalization, reorganization or any
other extraordinary business transaction involving or otherwise relating to
the
Company or any of its Subsidiaries; or
(B)
participate
in any discussions, conversations, negotiations or other communications
regarding, or furnish to any other Person any information with respect to,
or
otherwise cooperate in any way, assist or participate in, facilitate or
encourage any effort or attempt by any other Person to seek to do any of the
foregoing. Each of the Stockholders and the Company immediately shall
cease and cause to be terminated all existing discussions, conversations,
negotiations and other communications with any Persons conducted heretofore
with
respect to any of the foregoing.
SECTION
6.4 NOTIFICATION
OF CERTAIN MATTERS; SUPPLEMENTS TO DISCLOSURE
SCHEDULES
(A)
The
Company shall give prompt written notice to the Buyer of (i) the
occurrence of a Material Adverse Event, (ii) any failure of the Company or
any of its Affiliates or Representatives to comply with or satisfy any covenant
or agreement to be complied with or satisfied by it hereunder or any event
or
condition that would otherwise result in the nonfulfillment of any of the
conditions to the Buyer's obligations hereunder, (iii) any notice or other
communication from any Person alleging that the consent of such Person is or
may
be required in connection with the consummation of the transactions contemplated
by this Agreement or (iv) any Action pending or, to the Knowledge of the
Company, threatened against a party or the parties relating to the transactions
contemplated by this Agreement.
(B)
Each
of
the Company and the Stockholders shall supplement the information set forth
on
the Disclosure Schedules with respect to any matter now existing or hereafter
arising that, if existing or occurring at or prior to the date of this
Agreement, would have been required to be set forth or described in the
Disclosure Schedules or that is necessary to correct any information in the
Disclosure Schedules or in any representation or warranty of such party which
has been rendered inaccurate thereby promptly following discovery
thereof. No such supplement shall be deemed to cure any breach of any
representation or warranty made in this Agreement.
SECTION
6.5 RELEASE
OF INDEMNITY OBLIGATIONS.
At
the Closing, except for the obligations of the Company set forth in Section
6.14, each of the Stockholders hereby releases and discharges the Company
and its Subsidiaries from any and all obligations to pay or indemnify such
party, guarantee or secure its obligations or otherwise hold it harmless
pursuant to any agreement, Contract or other arrangement entered into by such
party with the Company or such Subsidiaries prior to the Closing.
SECTION
6.6 STOCKHOLDER
ARRANGEMENTS
. At
the Closing, all accounts or contracts between the Company and its Subsidiaries,
on the one hand, and any Stockholder or any of its Affiliates (other than the
Company and its Subsidiaries), on the other hand, are hereby cancelled without
any consideration or further liability to any party and without the need for
any
further documentation. Notwithstanding the foregoing, the
parties hereby agree that (i) the Company shall continue to assume the "Assumed
Liabilities" described on page 3 of Schedule 3.6(a) of the Disclosure
Schedules and (ii) they shall negotiate the terms and conditions pursuant to
which the services agreement entered into between AMS Industries and the Company
on November 1, 2005 (as referred to in Schedule 3.18 of the Disclosure
Schedules) may be continued after the Closing.
SECTION
6.7 DIRECTOR
RESIGNATIONS
. At
the Closing, the Stockholders will deliver the resignation of the directors
of
the Company, effective as of the Closing, as specified by the Buyer to the
Company in writing at least five days prior to the Closing Date.
SECTION
6.8 CONFIDENTIALITY
(A)
Until
the
Closing Date, each of the parties shall, and shall cause its Affiliates,
Representatives, the lenders and prospective lenders to, keep confidential,
disclose only to its Affiliates, its Representatives, the lenders or
prospective lenders, and use only in connection with the transactions
contemplated by this Agreement all information and data obtained by them from
the other parties or their respective Affiliates or Representatives relating
to
such other parties or the transactions contemplated hereby (other than
information or data that is or becomes available to the public other than as
a
result of a breach of this Section 6.8), unless disclosure of such
information or data is required by applicable Law and/or Governmental
Authorities. In the event that the transactions contemplated hereby
are not consummated, each party shall, and shall use its commercially reasonable
efforts to cause its Affiliates, Representatives, the lenders and prospective
lenders to, promptly return to the other parties or destroy all documents
(including all copies thereof) containing any such information or
data.
(B)
From
the
Closing and for a period of one year following the Closing Date, no Stockholder
shall, and each Stockholder shall cause its Affiliates and Representatives
not
to, use for its or their own benefit or divulge or convey to any third party,
any Confidential Information; provided, however, that such
Stockholder or such Affiliate or Representative may furnish such portion (and
only such portion) of the Confidential Information as such Stockholder or
such Affiliate or Representative reasonably determines it is legally obligated
to disclose if: (i) it receives a request to disclose all or any
part of the Confidential Information under the terms of a subpoena, civil
investigative demand or order issued by a Governmental Authority; (ii) to
the extent not inconsistent with such request, it notifies the Buyer of the
existence, terms and circumstances surrounding such request and consults with
the Buyer on the advisability of taking steps available under applicable Law
to
resist or narrow such request; (iii) it exercises its commercially
reasonable efforts to obtain an order or other reliable assurance that
confidential treatment will be accorded to the disclosed Confidential
Information; and (iv) disclosure of such Confidential Information is
required to prevent such Stockholder or such Affiliate or Representative from
being held in contempt or becoming subject to any other penalty under applicable
Law. For purposes of this Agreement, "Confidential
Information" consists of all information and data relating to the Business,
the Shares, the Convertible Bonds, the Company or its Subsidiaries or the
transactions contemplated hereby (other than data or information that is or
becomes available to the public other than as a result of a breach of this
Section 6.8).
SECTION
6.9 CONSENTS
AND FILINGS
(A)
Each
of
the Company and the Buyer shall use all commercially reasonable efforts to
take,
or cause to be taken, all appropriate action to do, or cause to be done, all
things necessary, proper or advisable under applicable Law or otherwise to
consummate and make effective the transactions contemplated by this Agreement
as
promptly as practicable, including using commercially reasonable efforts to
(i)
obtain from Governmental Authorities and other Persons all consents, approvals,
authorizations, qualifications and orders as are necessary for the consummation
of the transactions contemplated by this Agreement, (ii) promptly make all
necessary filings (which shall remain the sole responsibility of the Buyer),
and
thereafter make any other required submissions, with respect to this Agreement
required under the German Act, the Spanish Act, the Brazilian Act, the
Portuguese Act and the Ukrainian Act and any other applicable antitrust or
competition law of any Governmental Authority and (iii) have vacated, lifted,
reversed or overturned any order, decree, ruling, judgment, injunction or other
action (whether temporary, preliminary or permanent) that is then in effect
and
that enjoins, restrains, conditions, makes illegal or otherwise restricts or
prohibits the consummation of the transactions contemplated by this
Agreement. In furtherance and not in limitation of the foregoing,
each of the Company and the Stockholders shall permit the Buyer reasonably
to
participate in the defense and settlement of any claim, suit or cause of action
relating to this Agreement or the transactions contemplated hereby, and none
of
the Company or the Stockholders shall settle or compromise any such claim,
suit
or cause of action without the Buyer's written consent. With respect
to antitrust clearance, the Buyer shall use commercially reasonable efforts
to
make, within five Business Days of the date hereof, all necessary filings
required under the German Act, the Spanish Act, the Portuguese Act and the
Ukrainian Act and any other applicable antitrust or competition law of any
Governmental Authority (“Governmental Approvals”). The Company
shall promptly furnish to the Buyer all necessary information as the Buyer
may
reasonably request in connection with the preparation of any filing or
submission pursuant to any Governmental Approval and the Buyer shall promptly
furnish to the Stockholder Representative copies of all written communications
(and memoranda setting forth the substance of any oral communication) in
connection with any Governmental Approval in connection with this
Agreement. The Buyer will consult with the Stockholder Representative
prior to any meetings, by telephone or in person, with the staff of any
applicable Governmental Authority. The Buyer shall promptly respond
to any request for additional information pursuant to any Governmental
Approval. Upon the terms and subject to the provisions hereof, the
Buyer and the Company shall each use their reasonable best efforts to resolve
objections, if any, as may be asserted by any Governmental Authority with
respect to the transactions contemplated by this Agreement under any antitrust
or trade or regulatory laws or regulations of any Governmental Authority and
to
cause the waiting periods or other requirements under the applicable
anti-competition Laws to terminate or expire at the earliest possible
date. For purposes hereof, “reasonable best efforts” of the Buyer
shall include the Buyer’s agreement to hold separate and divest such businesses,
products and assets of the Buyer and its Affiliates as may be necessary to
obtain the agreement of any Governmental Authority not to seek an injunction
against or otherwise oppose the transactions contemplated hereby, on such terms
as may be required by such Governmental Authority. The Buyer shall
not (and, after Closing, the Buyer shall not permit the Company and any of
its
Subsidiaries to) consummate another transaction or enter into an agreement
with
respect to another transaction or take any other action if the intent or
reasonably anticipated consequence of such transaction or action is, or would
be, to cause any Governmental Authority not to grant approval of any required
regulatory approval or materially delay either such approval.
(B)
The
Company shall use reasonable efforts to obtain such third party consents and
estoppel certificates as the Buyer may deem necessary or desirable in connection
with the transactions contemplated by this Agreement. The Buyer shall
cooperate with and assist the Company in obtaining such consents and estoppel
certificates; provided, however, that the Buyer shall have no
obligation to give any guarantee or other consideration of any nature in
connection with any such consent or estoppel certificate or consent
to any change in the terms of any agreement or arrangement that the Buyer may
deem adverse to the interests of the Buyer, the Business, the Shares or the
Convertible Bonds. The Buyer has been aware through its
investigations and acknowledges that certain consents to the transactions
contemplated by this Agreement may be required from parties to contracts,
leases, licenses or other agreements to which the Company and/or its
Subsidiaries is a party (including the Material Contracts) and such consents
may
not be obtained. The Buyer agrees that the Stockholders shall not
have any liability whatsoever to the Buyer (and the Buyer shall not be entitled
to assert any claims against the Stockholders) arising out of or relating to
the
failure to obtain any consents that may have been or may be required in
connection with the transactions contemplated by this Agreement because of
the
default, acceleration or termination of or loss of right under any such
contract, lease, license or other agreement as a result thereof. The
Buyer further agrees that no representation, warranty or covenant of the Company
contained herein shall be breached or deemed breached and no condition of the
Buyer shall be deemed not to be satisfied as a result of the failure to obtain
any consent or as a result of any such default, acceleration or termination
or
loss of right or any lawsuit, action, claim, proceeding or investigation
commenced or threatened by or on behalf of any Person arising out of or relating
to the failure to obtain any consent or any default, acceleration or termination
or loss of right.
(C)
The
Company shall deliver, as promptly as practicable, to the greatest extent
possible by March 26, 2007, but in no event later than April 5, 2007, the
audited 2006 Financial Statements (which shall be prepared consistent with
past
practice and shall be without footnotes), which shall conform in all respects
with the Unaudited Financial Statements, except for such failures to conform
as
would not, in the aggregate, have a Material Adverse Effect.
(D)
The
Stockholders shall cause Ernst & Young LLP to provide to the Buyer, at the
Company's expense and as promptly as practicable after the Closing, but in
no
event later than June 4, 2007, (i) financial statements of the Company and
its
Subsidiaries in compliance with Regulation S-X under the Securities Act of
1933,
as amended, as and when needed to satisfy the Buyer's United States reporting
obligations in connection with the transactions contemplated hereby, including
audited consolidated financial statements for 2004, 2005 and 2006, interim
unaudited consolidated financial statements for March 31, 2006 and 2007, and
pro
forma financial statements, as may be required in accordance with Regulation
S-X, and (ii) written consents, awareness letters and other documents, as
requested by the Buyer, with respect to the inclusion of such financial
statements in the Buyer's filings with the United States Securities and Exchange
Commission. The Company shall provide Ernst & Young LLP with
reasonable and customary representation letters in connection
therewith.
SECTION
6.10 PUBLIC
ANNOUNCEMENTS
. Each
of the Stockholders, the Company and the Buyer shall consult with each other
before issuing, and provide each other the opportunity to review and comment
upon, any press release or other public statement with respect to the
transactions contemplated hereby, and shall not issue any such press release
or
make any such public statement prior to such consultation, except as may be
required by applicable Law.
SECTION
6.11 REPAYMENT
OF GROUP INDEBTEDNESS
. Provided
that the Buyer has made funds referred to in Section 5.10 available the Company
shall repay the Group Indebtedness at the Closing. The Stockholders
shall use commercially reasonable efforts to assist the Company and the Buyer
with preparations for prepayments and termination of the Group
Indebtedness.
SECTION
6.12 EMPLOYMENT
MATTERS
(A)
All
Business Employees who remain employees of the Business after the Closing Date
are referred to as "Continuing Employees".
(B)
For
a
period of at least one year following the Closing Date and subject to their
continued employment, the Buyer shall (or shall cause an Affiliate of the Buyer
to) provide wages and employee benefits to each Continuing Employee who is
not an employee of any Subsidiary of the Company organized in the United States
that, in the aggregate, are substantially comparable to those provided to such
Continuing Employee immediately prior to the Closing (provided,
however, that each Continuing Employee's terms and conditions of
employment shall instead be in compliance with applicable law to the extent
such
law requires different treatment of such Continuing Employee).
(C)
For
a
period of at least one year following the Closing Date, the Buyer shall (or
shall cause an Affiliate to) provide wages and employee benefits to each
Continuing Employee of any Subsidiary of the Company organized in the United
States that, in the aggregate, are (i) comparable to those provided to
similarly-situated employees of the Buyer in the United States or
(ii) substantially comparable to those provided to such Continuing Employee
immediately prior to the Closing.
(D)
The
Buyer
shall take all actions required so that eligible Continuing Employees shall
receive credit for purposes of participation and vesting under any employee
benefit plans, programs or arrangements sponsored by the Buyer or an Affiliate
of the Buyer to the extent credited under an analogous plan, program or
arrangement of the Company or a Subsidiary of the Company as of the Closing
Date. To the extent that the Buyer or an Affiliate of the Buyer
modifies any coverage or benefit plans under which the Continuing Employees
participate, the Buyer shall (or shall cause such Affiliate to) waive any
applicable waiting periods, pre-existing conditions or actively-at-work
requirements and shall give such Continuing Employees credit under the new
coverage or benefit plans for deductibles, co-payments and out-of-pocket
payments that have been paid during the plan year in which the Closing
occurs.
(E)
Nothing
in this Section 6.12 shall impact the Buyer's or any of its Affiliates'
rights to terminate the employment of any Continuing Employee or (subject to
Section 6.12(b) and Section 6.12(c)) change the terms
and conditions of such Continuing Employee's employment at any
time.
(F)
The
Buyer
shall be responsible for any and all notices, liabilities, costs, payments
and
expenses arising from any action by the Buyer or, after the Closing, the Company
(including breach of contract, defamation or retaliatory discharge) regarding
any Business Employee, including any such liability (i) under any applicable
law
that relates to employees, employee benefit matters or labor matters, (ii)
for
dismissal, wrongful termination or constructive dismissal or termination, or
severance pay or other termination pay, or (iii) under or with respect to any
benefit plan, program, contract, policy, commitment, or arrangement of the
Company and its Subsidiaries, including with respect to severance or retention
plans, or to the extent such severance or retention plans provide payments
or
benefits with respect to any Business Employee.
(G)
In
any
termination or layoff of any Business Employee by the Buyer or the Company
after
the Closing, the Buyer and the Company will comply fully, if applicable, with
the Worker Adjustment and Retraining Notification Act of 1988 ("WARN")
and all other applicable Laws, including those prohibiting discrimination and
requiring notice to employees. The Buyer shall not, and shall cause
the Company and its Subsidiaries not to, at any time prior to 60 days after
the
Closing Date, effectuate a “plant closing” or “mass layoff” as those terms are
defined in WARN affecting in whole or in part any facility, site of employment,
operating unit or employee of the Company or any Subsidiary without complying
fully with the requirements of WARN. The Buyer will bear the cost of
compliance with (or failure to comply with) any such Laws.
(H)
For
periods on and after the Closing Date, the Company and its Subsidiaries shall
continue to have all obligations and liabilities under and with respect to
the
Employee Benefit Plans and to or with respect to all persons entitled to
benefits under the provisions of each such Employee Benefit Plan, including,
without limitation, the obligation to provide or make available welfare benefits
to retired or disabled employees of the Company and its
Subsidiaries. Nothing in this Section will preclude the Buyer from
making any modification to, or terminating, such Employee Benefit
Plans.
(I)
No
Continuing Employee or any dependent or beneficiary thereof is an intended
third-party beneficiary of this Section 6.12, and no such individual
shall have any right to enforce the provisions of this Section
6.12.
SECTION
6.13 TAX
COVENANTS
(A)
Each
of
the Stockholders shall be responsible for the payment of its Taxes resulting
from the transactions contemplated hereby and the Buyer shall have no liability
therefor.
(B)
The
Buyer
shall prepare, or cause to be prepared, and file, or cause to be filed, all
Returns of the Company and its Subsidiaries for Pre-Closing Tax periods that
are
due (including extensions) after the Closing Date and for any Taxable Period
that begins prior to and ends after the Closing Date.
(C)
All
transfer, documentary, sales, use, stamp, registration and other such taxes
and
fees (including any interest and penalties) incurred in connection with the
transactions contemplated by this Agreement ("Transfer Taxes") shall
be paid by the Buyer and the Buyer will prepare and file all
necessary Returns and other documentation with respect to such Transfer Taxes
and, if required by Law, the Stockholders will join in the execution of any
such
Returns.
SECTION
6.14 INDEMNIFICATION
OF DIRECTORS AND OFFICERS
(A)
For
six
years from and after the Closing Date, to the fullest extent permitted by
applicable Law, the Buyer and the Company agree to indemnify and hold harmless
all past and present officers and directors of the Company and of its
Subsidiaries to the same extent such persons are currently indemnified by the
Company pursuant to the Company’s organizational documents and Director
Indemnification Agreements for acts or omissions occurring at or prior to the
Closing Date, and the Buyer shall not, and shall not permit the Company or
any
of its Subsidiaries to, amend, repeal or modify any provision in the Company’s
or any of its Subsidiaries’ organizational documents relating to the exculpation
or indemnification of former officers and directors as in effect immediately
prior to the Closing; provided, however, that the foregoing will not apply
to
indemnification claims pursuant to Article VIII hereunder;
provided, further, that neither the Company nor the Buyer shall be
liable with respect to any settlements effected without its written consent
(which consent shall not be unreasonably withheld).
(B)
The
Buyer
shall cause the Company and its Subsidiaries to maintain in effect for six
years
from the Closing Date directors’ and officers’ liability insurance covering
those persons who are currently covered by the Company’s existing directors’ and
officers’ liability insurance policy on terms not less favorable than such
existing insurance coverage; provided, that in the event that any claim
is brought under such director’s and officer’s liability insurance policy, such
policy shall be maintained until final disposition of such claim;
provided,further, that the Company shall not be required to pay an
annual premium in excess of 250 percent of the last annual premium paid prior
to
the date thereof, but in such case shall purchase as much coverage as possible
for such amount.
(C)
In
addition to the other rights provided for in this Section 6.14 and not in
limitation thereof (but without in any way limiting or modifying the obligations
of any insurance carrier contemplated by Section 6.14), from and after
the Closing Date, the Buyer shall, and shall cause the Company and its
Subsidiaries (each, a "D&O Indemnifying Party") to, to the fullest
extent permitted by applicable law, (i) indemnify and hold harmless (and release
from any liability to the Buyer or the Company or any of its Subsidiaries),
the
individuals who, on or prior the Closing Date, were officers, directors, or
employees or agents of the Company or any of its Subsidiaries or served on
behalf of the Company as an officer, director or employee or agent of any of
the
Company’s current or former Subsidiaries or Affiliates (collectively,
"Covered Affiliates") or any of their predecessors in all of their
capacities (including as member or stockholder, controlling or otherwise) and
the heirs, executors, trustees, fiduciaries and administrators of such officer,
directors or employees or agents (each a "D&O Indemnitee" and,
collectively, the "D&O Indemnitees") against all D&O Expenses,
losses, claims, damages, judgments or amounts paid in settlement ("D&O
Costs") in respect of any threatened, pending or completed Action based on
or arising out of or relating to the fact that such Person is or was a director,
officer or employee (controlling or otherwise) of the Company or any of its
Subsidiaries or Covered Affiliates or any of their predecessors arising out
of
acts or omissions occurring on or prior to the Closing Date (including without
limitation, in respect of acts or omissions in connection with this Agreement
and the transactions contemplated thereby) (a "D&O Indemnifiable
Claim"), except for acts or omissions which involve conduct known to such
Person at the time to constitute a material violation of applicable law and
(ii)
advance to such D&O Indemnitees all D&O Expenses incurred in connection
with any D&O Indemnifiable Claim (including in circumstances where the
D&O Indemnifying Party has assumed the defense of such claim) promptly after
receipt of reasonably detailed statements therefor; provided, however, that
the
Person to whom D&O Expenses are to be advanced provides an undertaking to
repay such advances if it is ultimately determined that such Person is not
entitled to indemnification. Each D&O Indemnifiable Claim shall
continue until such D&O Indemnifiable Claim is disposed of or all judgments,
orders, decrees or other rulings in connection with such D&O Indemnifiable
Claim are fully satisfied. For the purposes of this Section
6.14(c), "D&O Expenses" shall include reasonable attorneys’ fees
and all other reasonable costs, charges and expenses paid or incurred in
connection with investigating, defending, being a witness in or participating
in
(including on appeal), or preparing to defend, to be a witness in or participate
in any D& O Indemnifiable Claim, but shall exclude losses, judgments and
amounts paid in settlement (which items are included in the definition of
D&O Costs).
(D)
Notwithstanding
anything contained in this Agreement to the contrary, this Section 6.14
shall survive the consummation of the Closing indefinitely. In the
event that the Buyer or the Company or any of its Subsidiaries or any of their
respective successors or assigns (i) consolidates with or merges in to any
other
Person, or (ii) transfers all or substantially all of its properties or assets
to any Person, then, and in each case, the successors and assigns of the Buyer
or its Subsidiary, as the case may be, shall expressly assume and be bound
by
the obligations set forth in this Section 6.14.
(E)
The
obligations of the Buyer, the Company and its Subsidiaries under this Section
6.14 shall not be terminated or modified in such a manner as to adversely
affect any D&O Indemnitee to whom this Section 6.14 applies without
the consent of such affected D&O Indemnitee.
SECTION
6.15 PRESERVATION
OF RECORDS; POST-CLOSING ACCESS AND COOPERATION
The
Buyer
and the Company shall preserve and retain, in accordance with the Buyer's record
retention program as in effect from time to time, all corporate, accounting,
legal, auditing, human resources and other books and records of the Company
and
each of its Subsidiaries relating to the conduct of the Business prior to the
Closing Date. If, after the Closing, the Stockholders need
information contained in the books and records of the Company, then the Buyer
shall cause the Company to provide the Stockholders with such
information.
SECTION
6.16 INDONESIAN
SUBSIDIARY
. Messrs.
Bize and Xxxxxx shall provide reasonable assistance to the Company to resolve
the dispute between the Company and its partner in Indonesia.
ARTICLE
VII
CONDITIONS
TO CLOSING
SECTION
7.1 GENERAL
CONDITIONS
. The
respective obligations of the Buyer, the Company and the Stockholders to
consummate the transactions contemplated by this Agreement shall be subject
to
the fulfillment, at or prior to the Closing, of each of the following
conditions, any of which may, to the extent permitted by applicable Law, be
waived in writing by the Buyer, the Company or the Stockholder Representative
(on behalf of the Stockholders) in its sole discretion (provided
that such waiver shall only be effective as to the obligations of such party
(or, in the case of the Stockholders, such waiver by the Stockholder
Representative on behalf of the Stockholders shall only be effective as to
the
obligations of the Stockholders)):
(A)
No
Injunction or Prohibition. No Governmental Authority shall have
enacted, issued, promulgated, enforced or entered any Law (whether temporary,
preliminary or permanent) that is then in effect and that enjoins,
restrains, conditions, makes illegal or otherwise prohibits the consummation
of
the transactions contemplated by this Agreement.
(B)
Antitrust/Competition
and Regulatory Clearance. Any waiting period (and any extension
thereof) under the German Act, the Spanish Act, the Portuguese Act and the
Ukrainian Act or any applicable Laws and/or regulations of any Governmental
Authority shall have expired or shall have been terminated, it being understood
that the Buyer shall be solely responsible for obtaining the Brazilian antitrust
clearance or the consequences of the failure to obtain of such
clearance.
SECTION
7.2 CONDITIONS
TO OBLIGATIONS OF THE COMPANY AND THE
STOCKHOLDERS
. The
obligations of the Company and the Stockholders to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment, at or prior
to the Closing, of each of the following conditions, any of which may be waived
in writing by the Company or the Stockholder Representative (on behalf of the
Stockholders), in its sole discretion:
(A)
Representations,
Warranties and Covenants of the Buyer. The representations and
warranties of the Buyer contained in this Agreement or any schedule, certificate
or other document delivered pursuant hereto or in connection with the
transactions contemplated hereby shall be true and correct both when made and
as
of the Closing Date, or in the case of representations and warranties that
are
made as of a specified date, such representations and warranties shall be true
and correct as of such specified date, except where the failure to be so true
and correct (without giving effect to any limitation or qualification as to
"materiality" (including the word "material") or "Knowledge" set forth therein)
would not, individually or in the aggregate, reasonably be expected to be
materially adverse to the ability of the Buyer to perform its obligations under
this Agreement or to consummate the transactions contemplated
hereby. The Buyer shall have performed all obligations and agreements
and complied with all covenants and conditions required by this Agreement to
be
performed or complied with by it prior to or at the Closing.
SECTION
7.3 CONDITIONS
TO OBLIGATIONS OF THE BUYER
. The
obligations of the Buyer to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment, at or prior to the Closing,
of
each of the following conditions, any of which may be waived in writing by
the
Buyer in its sole discretion:
(A)
Representations,
Warranties and Covenants of the Company.
(I) THERE
SHALL NOT HAVE OCCURRED, WITHOUT GIVING EFFECT TO ANY LIMITATION OR
QUALIFICATION (INCLUDING THE WORD "MATERIAL", "MATERIAL ADVERSE EFFECT",
"MATERIAL ADVERSE EVENT" OR "KNOWLEDGE") SET FORTH IN ANY REPRESENTATION OR
WARRANTY OF THE COMPANY CONTAINED IN THIS AGREEMENT:
(A) any
breach of any representation or warranty of the Company (other than any Core
Representation of the Company) contained in Article III as of the date of
this Agreement;
(B) any
breach of any Core Representation of the Company as of the date of this
Agreement or as of the Closing Date; or
(C) any
Material Adverse Event;
that,
individually or in the aggregate, has a Material Adverse Effect,
and
(II) THE
COMPANY SHALL HAVE PERFORMED ALL OBLIGATIONS AND AGREEMENTS AND COMPLIED WITH
ALL COVENANTS AND CONDITIONS REQUIRED BY THIS AGREEMENT TO BE PERFORMED OR
COMPLIED WITH BY IT PRIOR TO OR AT THE CLOSING, EXCEPT FOR ANY SUCH FAILURES
TO
PERFORM OR COMPLY AS WOULD NOT REASONABLY BE EXPECTED TO BE ADVERSE TO THE
COMPANY, THE BUYER, OR THE COMPANY OR THE BUYER’S ABILITY TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED HEREBY AS CONTEMPLATED BY THIS
AGREEMENT.
(B)
Representations,
Warranties and Covenants of the Stockholders. The representations
and warranties of each Stockholder contained in Article IV of this
Agreement shall be true and correct as of the date of this Agreement, and the
Core Representations of each Stockholder contained in this Agreement shall
be
true and correct as of the Closing Date, except in either case where the failure
to be so true and correct (without giving effect to any limitation or
qualification as to "materiality" (including the word "material") or "Knowledge"
set forth therein) would not, individually or in the aggregate, reasonably
be
expected to be materially adverse to the ability of such Stockholder to perform
its obligations under this Agreement or to consummate the transactions
contemplated hereby. Each Stockholder shall have performed all
obligations and agreements and complied with all covenants and conditions
required by this Agreement to be performed or complied with by it prior to
or at
the Closing, except where the failure to do so does not adversely impact the
Company, the Buyer or the Buyer's ability to consummate the transactions
contemplated hereby in accordance with this Agreement.
ARTICLE
VIII
INDEMNIFICATION
SECTION
8.1 SURVIVAL
OF REPRESENTATIONS, WARRANTIES AND COVENANTS
. The
representations and warranties of the Company, the Stockholders and the Buyer
contained in this Agreement and any schedule, certificate or other document
delivered pursuant hereto or thereto or in connection with the transactions
contemplated hereby or thereby shall terminate as of the Closing;
provided, however, that the representations and warranties set
forth in Section 3.1, Section 4.1 and Section 5.1 relating to organization
and
existence, Section 3.2, Section 4.2 and Section 5.2 relating to authority,
Section 4.4 relating to Common Stock and Convertible Bonds, and Section 3.4
relating to capitalization (Sections 3.1, Section 3.2, Section 3.4, Section
4.1,
Section 4.2, Section 4.4, Section 5.1, and Section 5.2 are collectively referred
to herein as the "Core Representations") shall survive until the date
that is 18 months after the Closing Date. For the avoidance of doubt,
the Buyer shall not have any right to be indemnified hereunder after the Closing
Date for the breach of any representation or warranty set forth in this
Agreement other than for breaches of the Core Representations. All
covenants of the Company, the Stockholders and the Buyer contained in this
Agreement shall survive until the date that is 12 months after the Closing
Date.
SECTION
8.2 INDEMNIFICATION
BY THE STOCKHOLDERS
. Each
Stockholder shall save, defend, indemnify and hold harmless the Buyer and its
Affiliates and the respective Representatives, successors and assigns of each
of
the foregoing from and against any and all Losses incurred, sustained or
suffered by any of the foregoing as a result of, arising out of or relating
to
(i) any breach of any Core Representation or covenant made by the Company or
any
Stockholder in this Agreement or (ii) any unpaid Transaction
Expenses. For purposes of this Section 8.2, each Stockholder’s
indemnification obligations shall be several (in accordance with its percentage
ownership of the Shares and Convertible Bonds as set forth opposite such
Stockholder’s name on Exhibit A) and not joint.
SECTION
8.3 INDEMNIFICATION
BY THE BUYER
. The
Buyer shall save, defend, indemnify and hold harmless the Stockholders and
their
respective Affiliates, and the respective Representatives, successors and
assigns of each of the foregoing, from and against any and all Losses asserted
against, incurred, sustained or suffered by any of the foregoing as a result
of,
arising out of or relating to (i) any breach of any Core Representation or
covenant made by the Buyer in this Agreement, and (ii) any acts or omissions
by
the Buyer or the Company or its Subsidiaries and any obligations and liabilities
in respect of the Buyer and the Company or its Subsidiaries from
and after the Closing
Date.
SECTION
8.4 PROCEDURES
(A)
In
order
for a party (the "Indemnified Party") to be entitled to any
indemnification provided for under this Agreement in respect of, arising out
of
or involving a Loss or a claim or demand made by any person against the
Indemnified Party for monetary damages (a "Third Party Claim"), such
Indemnified Party shall deliver notice thereof to the party against whom
indemnity is sought (the "Indemnifying Party") within fifteen
Business Days after receipt by such Indemnified Party of written notice of
the
Third Party Claim and shall provide the Indemnifying party with such information
with respect thereto as the Indemnifying Party may reasonably
request. The failure to provide such notice, however, shall not
release the Indemnifying Party from any of its obligations under this Article
VIII except to the extent that the Indemnifying Party is prejudiced by such
failure.
(B)
The
Indemnifying Party shall have the right, upon written notice to the Indemnified
Party within 15 days of receipt of notice from the Indemnified Party of the
commencement of such Third Party Claim, to assume the defense thereof at the
expense of the Indemnifying Party with counsel selected by the Indemnifying
Party and reasonably satisfactory to the Indemnified Party. The
Indemnifying Party shall be liable for the fees and expenses of counsel employed
by the Indemnified Party for any period during which the Indemnifying Party
has
failed to assume the defense thereof. If the Indemnifying Party does
not expressly elect to assume the defense of such Third Party Claim within
the
time period and otherwise in accordance with the first sentence of this
Section 8.4(b), the Indemnified Party shall have the sole right to assume
the defense of and to settle such Third Party Claim. If the
Indemnifying Party assumes the defense of such Third Party Claim, the
Indemnified Party shall have the right to employ separate counsel and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the Indemnified Party unless (i) the employment
of such counsel shall have been specifically authorized in writing by the
Indemnifying Party or (ii) the named parties to the Third Party Claim
(including any impleaded parties) include both the Indemnified Party and
the Indemnifying Party, and the Indemnified Party reasonably determines that
representation by counsel to the Indemnifying Party of both the Indemnifying
Party and such Indemnified Party may present such counsel with a conflict of
interest. If the Indemnifying Party assumes the defense of any Third
Party Claim, the Indemnified Party shall, at the Indemnifying Party's expense,
cooperate with the Indemnifying Party in such defense and make available to
the
Indemnifying Party all witnesses, pertinent records, materials and information
in the Indemnified Party's possession or under the Indemnified Party's control
relating thereto as is reasonably required by the Indemnifying
Party. If the Indemnifying Party assumes the defense of any Third
Party Claim, the Indemnifying Party shall not, without the prior written consent
of the Indemnified Party (which consent will not be unreasonably withheld),
enter into any settlement or compromise or consent to the entry of any judgment
with respect to such Third Party Claim if such settlement, compromise or
judgment (i) involves a finding or admission of wrongdoing, (ii) does
not include an unconditional written release by the claimant or plaintiff of
the
Indemnified Party from all liability in respect of such Third Party Claim or
(iii) imposes equitable remedies or any obligation on the Indemnified Party
other than solely the payment of money damages for which the Indemnified Party
will be indemnified hereunder.
(C)
The
indemnification required hereunder in respect of a Third Party Claim shall
be
made by prompt payment by the Indemnifying Party of the amount of actual Losses
in connection therewith, as and when bills are received by the Indemnified
Party
or Losses incurred have been notified to the Indemnifying Party, together with
interest on any amount not repaid as necessary to the Indemnified Party by
the
Indemnifying Party within five Business Days after receipt of notice of such
Losses, from the date such Losses have been notified to the Indemnifying Party,
at the rate per annum at which deposits are offered by first class banks to
first class banks in immediately available funds in the London Interbank Market
for available funds in the London Interbank Market.
(D)
In
the
event any Indemnified Party should have a claim against any Indemnifying Party
hereunder that does not involve a Third Party Claim being asserted against
or
sought to be collected from such Indemnified Party, the Indemnified Party shall
deliver notice of such claim with reasonable promptness to the Indemnifying
Party. The failure to provide such notice, however, shall not release
the Indemnifying Party from any of its obligations under this
Article VIII except to the extent that the Indemnifying Party is
prejudiced by such failure and shall not relieve the Indemnifying Party from
any
other obligation or liability that it may have to the Indemnified Party or
otherwise than pursuant to this Article VIII. If the
Indemnifying Party agrees that it has an indemnification obligation but asserts
that it is obligated to pay a lesser amount than that claimed by the Indemnified
Party, the Indemnifying Party shall pay such lesser amount promptly to the
Indemnified Party, without prejudice to or waiver of the Indemnified Party's
claim for the difference.
(E)
Notwithstanding
the provisions of Section 10.9, each Indemnifying Party hereby consents
to the nonexclusive jurisdiction of any court in which an Action in respect
of a
Third Party Claim is brought against any Indemnified Party for purposes of
any
claim that an Indemnified Party may have under this Agreement with respect
to
such Action or the matters alleged therein and agrees that process may be served
on each Indemnifying Party with respect to such claim anywhere.
SECTION
8.5 INDEMNIFICATION
EXCLUSIVE REMEDY
. Except
in the case of fraud or intentional misconduct, the sole recourse and exclusive
remedy of the Buyer, the Company and the Stockholders for the breach of any
representations, warranties, covenants and agreements contained in this
Agreement, any agreement, or instrument contemplated hereby, any document
relating hereto or thereto contained in any Schedules or Exhibit to this
Agreement, or otherwise arising from the transactions contemplated hereby or
the
operations of the Company and its Affiliates prior to the Closing, shall be
to
assert a claim for indemnification under the indemnification provisions of
this
Article VIII. Except in the case of fraud or intentional misconduct,
the only legal action which may be asserted by any party hereto against any
other party hereto with respect to any matter which is the subject of this
Article VIII shall be a contract action to enforce, or to recover Losses as
an
indemnification claim for the breach of, this Agreement pursuant to the recourse
described in this Article VIII. In furtherance of the foregoing, and
except as set forth in this Article VIII, each Indemnified Party hereby
waives, from and after the Closing, to the fullest extent permitted under
applicable Law, any and all rights, claims, and causes of action it may have
against any Indemnifying Party relating to the subject matter of this Agreement
based upon predecessor or successor liability, contribution, tort or strict
liability or any federal, state, local or foreign statute, law, rule, regulation
or ordinance or otherwise.
SECTION
8.6 INDEMNIFICATION
LIMITS.
(A)
THE
BUYER
AGREES, ON BEHALF OF ITSELF, ITS AFFILIATES (INCLUDING THE COMPANY AFTER
CLOSING), SUCCESSORS AND ASSIGNS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, STOCKHOLDERS, REPRESENTATIVES AND AGENTS, THAT THE SOLE AND EXCLUSIVE
SOURCE OF RECOVERY FOR ANY SUCH PERSON’S INDEMNIFICATION OR OTHER CLAIM UNDER OR
IN CONNECTION WITH THIS AGREEMENT IS TO MAKE AN INDEMNIFICATION CLAIM AGAINST
THE STOCKHOLDERS SEVERALLY AND NOT JOINTLY AND IN NO EVENT SHALL ANY
INDEMNIFICATION OF OR RECOVERY BY THE BUYER OR ANY OTHER INDEMNITEE FOR LOSSES
PURSUANT TO SECTION 8.2 THAT ARE RECOVERABLE EXCEED, WITH RESPECT TO ANY
STOCKHOLDER, THE AMOUNT OF THE PURCHASE PRICE ACTUALLY RECEIVED BY SUCH
PERSON.
(B)
To
the
extent that any Losses which would otherwise be subject to indemnification
pursuant to this Article VIII were expressly reflected in the reserves and
accruals in the Financial Statements (but only to the extent specifically
reserved or accrued), the Buyer or other indemnitee shall not be able to recover
for such Losses.
(C)
The
Buyer
may not seek indemnification under this Agreement with regard to any Losses
to
the extent that such Losses are caused by actions taken by the Buyer or the
Company after the Closing. After the Closing, the Buyer shall, and
shall cause the Company and its Subsidiaries to, promptly notify the Stockholder
Representative upon becoming aware of any fact, occurrence or event that the
Buyer believes could cause any of the representations and warranties contained
in Article III to be inaccurate or incomplete in any respect, and the
Buyer and the Company shall utilize commercially reasonable efforts, consistent
with normal practices and policies and good commercial practice to mitigate
such
Losses, including reasonably pursuing any and all other available indemnity
rights.
(D)
From
and
after the Closing, the Buyer and the Company shall maintain or cause to be
maintained customary property, casualty, business interruption and other
insurance in respect of the Company in accordance with the Buyer’s general
practices and industry standards.
(E)
Any
amounts payable under Section 8.2 or Section 8.3 shall be treated
by the Buyer and the Stockholders as an adjustment to the Purchase Price, and
shall be calculated after giving effect to (i) any proceeds received or
receivable from insurance policies covering the Loss that is the subject of
the
claim for indemnity (any self-insured, retention, deduction or similar liability
retention by the Buyer will, for this purpose, be viewed as actual insurance
for
this purpose, except to the extent any such insurance proceeds must be
specifically repaid by indemnitee through adjustments to past, present or future
premiums or other similar mechanism and net of any costs of obtaining any such
proceeds), (ii) any proceeds received or receivable from third parties,
including, without limitation, any party to any Prior Acquisition Agreement,
through indemnification, counterclaim, reimbursement arrangement, contract
or
otherwise in compensation for the subject matter of an indemnification claim
by
such indemnitee (such arrangements referenced in clauses (i) and (ii) in this
Section 8.6(e), collectively, "Alternative Arrangements"), and
(iii) the Tax benefit to the indemnitee resulting from, or as a consequence
of,
the damage, loss, liability or expense that is the subject of the indemnity,
to
the extent that such Tax benefits are actually received by the
indemnitee. The Buyer shall have no right to assert any claims
pursuant to this Article VIII or otherwise with respect to any Losses
that would have been covered by an Alternative Arrangement had the Buyer
maintained for its benefit and the benefit of the Company and its Subsidiaries
the same rights or coverage under an Alternative Arrangement following the
Closing that was in effect for the Company and its Subsidiaries immediately
prior to the Closing.
(F)
The
Buyer
and the Company after the Closing shall utilize their commercially reasonable
efforts, consistent with normal practices and policies and good commercial
practice, to mitigate any amounts payable under Section 8.2, including
pursuing any and all other remedies to (i) collect any proceeds pursuant to
Alternative Arrangements covering the Loss that is the subject to the claim
for
indemnity and (ii) obtain the actual recognized Tax benefit to the indemnitee
resulting from the Loss that is the subject of the indemnity. If any
such proceeds, benefits or recoveries are received by the Buyer or the Company
with respect to any Losses after the Buyer or the Company has received proceeds
from the Stockholders, the Buyer or the Company shall promptly, but in any
event
no later than ten Business Days after the receipt, realization or recovery
of
such proceeds, benefits or recoveries, pay to the Stockholder Representative
the
amount of such proceeds, benefits or recoveries for distribution to the
Stockholders. Upon making a payment to the Buyer or the Company in
respect of any Losses, the Stockholders will, to the extent of such payment,
be
subrogated to all rights of the Buyer or the Company against any third party
in
respect of the Losses to which such payment relates. The Buyer and
the Company will execute upon request all instruments reasonably necessary
to
evidence or further perfect such subrogation rights. Each party
hereby waives any subrogation rights that its insurer may have with respect
to
any indemnifiable Losses.
(G)
No
claims
by any party shall be asserted for any breach of a representation or warranty
contained in this Agreement if such party had knowledge of such breach at the
date of this Agreement or otherwise at the time of Closing.
(H)
Effective
as of the Closing Date, each of the Buyer and the Company (each a
"Releasor"), on behalf of itself and its heirs, legal representatives,
successors and assigns, hereby releases, acquits and forever discharges, to
the
fullest extent permitted by Law, each of the Stockholders, the Stockholder
Representative and each of their respective past, present or future officers,
managers, directors, shareholders, partners, members, Affiliates, employees,
counsel and agents (each a "Releasee"):) of, from and against any and all
actions, causes of action, claims, demands, damages, judgments, debts, dues
and
suits of every kind, nature and description whatsoever (collectively
"Claims"):) which such Releasor or its heirs, legal representatives,
successors or assigns ever had, now has or may have on or by reason of any
matter, cause or thing whatsoever prior to the Closing Date. Each
Releasor agrees not to, and agrees to cause its respective Affiliates and
Subsidiaries not to, assert any Claim against the
Releasees. Notwithstanding the foregoing, each Releasor and its
respective heirs, legal representatives, successors and assigns retain, and
do
not release, their rights and interests under the terms of this Agreement or
with respect to any Claim or liability resulting from such Person’s fraud,
embezzlement or other criminal act. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS AGREEMENT, EACH STOCKHOLDER WILL ONLY BE LIABLE SEVERALLY,
AND
NOT JOINTLY AND SEVERALLY, FOR ANY OBLIGATIONS AND RESPONSIBILITIES OF THE
STOCKHOLDERS SET FORTH IN THIS AGREEMENT. EXCEPT AS SET FORTH IN THIS
ARTICLE VIII, EACH INDIVIDUAL STOCKHOLDER SHALL ONLY BE RESPONSIBLE FOR
BREACHES OF SUCH STOCKHOLDER’S REPRESENTATIONS AND WARRANTIES OR COVENANTS, AND
NOT FOR BREACHES OF ANY OTHER STOCKHOLDER’S REPRESENTATIONS AND WARRANTIES OR
COVENANTS SET FORTH IN THIS AGREEMENT.
ARTICLE
IX
TERMINATION
SECTION
9.1 TERMINATION
. This
Agreement may be terminated at any time prior to the Closing:
(A)
by
mutual
written consent of the Buyer and the Stockholder Representative;
(B)
(i) by
the Company and the Stockholder Representative (on behalf of the Stockholders),
if the Buyer breaches or fails to perform in any respect any of its
representations, warranties or covenants contained in this Agreement and such
breach or failure to perform (A) would give rise to the failure of a
condition set forth in Section 7.2, (B) cannot be or has not been
cured within 15 days following delivery by the Company to the Buyer of written
notice of such breach or failure to perform and (C) has not been waived by
the Company and the Stockholder Representative (on behalf of the
Stockholders) or (ii) by the Buyer, if the Company or any of the
Stockholders breaches or fails to perform in any respect any of its respective
representations, warranties or covenants contained in this Agreement and such
breach or failure to perform (x) would give rise to the failure of a
condition set forth in Section 7.3, (y) cannot be or has not been
cured within 15 days following delivery by the Buyer to the Company of written
notice of such breach or failure to perform and (z) has not been waived by
the Buyer;
(C)
by
the
Company, the Stockholder Representative (on behalf of the Stockholders) or
the Buyer if the Closing shall not have occurred by the date that is 120 days
after the date of the Agreement; provided, that the right to terminate
this Agreement under this Section 9.1(c) shall not be available if
the failure of the party so requesting termination to fulfill any obligation
under this Agreement shall have been the cause of, or shall have resulted in,
the failure of the Closing to occur on or prior to such date;
(D)
by
the
Company, the Stockholder Representative (on behalf of the Stockholders) or
the Buyer in the event that any Governmental Authority shall have issued an
order, decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement and such
order, decree, ruling or other action shall have become final and nonappealable;
provided, that the party so requesting termination shall have used its
commercially reasonable efforts, in accordance with Section 6.9, to have
such order, decree, ruling or other action vacated; or
(E)
by
the
Buyer, if between the date hereof and the Closing, there has occurred a Material
Adverse Effect.
The
party
seeking to terminate this Agreement pursuant to this Section 9.1 (other
than Section 9.1(a)) shall give prompt written notice of such
termination to the other party.
SECTION
9.2 EFFECT
OF TERMINATION
. In
the event of termination of this Agreement as provided in
Section 9.1, this Agreement shall forthwith become void and there
shall be no liability on the part of either party except (i) for the
provisions of Section 3.25 and Section 5.5 relating to broker's
fees and finder's fees, Section 6.8 relating to confidentiality,
Section 6.10 relating to public announcements, Section 10.1
relating to fees and expenses, Section 10.4 relating to notices,
Section 10.7 relating to third-party beneficiaries, Section 10.8
relating to governing law, Section 10.9 relating to submission to
jurisdiction and this Section 9.2 and (ii) that nothing herein shall
relieve either party from liability for any breach of this Agreement or any
agreement made as of the date hereof or subsequent thereto pursuant to this
Agreement.
ARTICLE
X
GENERAL
PROVISIONS
SECTION
10.1 FEES
AND EXPENSES
. Except
as otherwise provided herein, all fees and expenses incurred in connection
with
or related to this Agreement and the transactions contemplated hereby shall
be
paid by the party incurring such fees or expenses, whether or not such
transactions are consummated; provided that the Buyer shall pay all
filing fees required with respect to the notification, report or other
requirements with respect to each Governmental Approval, and provided,
further, that if the transactions contemplated hereby are consummated,
all Transaction Expenses shall be borne and paid by the Stockholders and not
by
the Company, any Subsidiary of the Company or the Buyer. In the event
of termination of this Agreement, the obligation of each party to pay its own
expenses will be subject to any rights of such party arising from a breach
of
this Agreement by the other.
SECTION
10.2 AMENDMENT
AND MODIFICATION
. This
Agreement may not be amended, modified or supplemented in any manner, whether
by
course of conduct or otherwise, except by an instrument in writing signed by
the
Company, the Stockholder Representative and the Buyer and otherwise as expressly
set forth herein.
SECTION
10.3 WAIVER
. No
failure or delay of any party in exercising any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such right or power, or any course of conduct, preclude any other or further
exercise thereof or the exercise of any other right or power. The
rights and remedies of the parties hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have
hereunder. Any agreement on the part of either party to any such
waiver shall be valid only if set forth in a written instrument executed and
delivered by a duly authorized officer on behalf of such party.
SECTION
10.4 NOTICES
. All
notices and other communications hereunder shall be in writing and shall be
deemed duly given (i) on the date of delivery if delivered personally, or
if by facsimile, upon written confirmation of receipt by facsimile, (ii) on
the first Business Day following the date of dispatch if delivered utilizing
a
next-day service by a recognized next-day courier or (iii) on the earlier
of confirmed receipt or the fifth Business Day following the date of mailing
if
delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall be delivered to the addresses
set forth below, or pursuant to such other instructions as may be designated
in
writing by the party to receive such notice:
(A)
if
to the
Company, to:
Actaris
Metering Systems
00,
xxx
xx Xxxxxxxx
X-0000,
Xxxxxxxxxx
Xxxxxxxxx:
General Counsel
Facsimile:
x00 0 00 00 00 00
with
a
copy (which shall not constitute notice) to:
Actaris
Management Services
000,
Xxxxxx Xxxxxx, 0000 Xxxxxxxx
Attention:
Legal Department
Facsimile:
+ 32 2 642 88 36
(B)
if
to the
Stockholder Representative, to:
LBO
France
000,
xxx
xx x’Xxxxxxxxxx
00000
Xxxxx, Xxxxxx
Attention: Mr.
Xxxxxx Daussun
Facsimile: x00
0 00 00 00 00
with
a
copy (which shall not constitute notice) to:
Mayer,
Brown, Xxxx & Maw
0000
Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention:
Xxxxx X Xxxxxxx
Facsimile:
(000) 000-0000
and
Mayer,
Brown, Xxxx & Maw
00,
xxxxxx Xxxxx 00000 Xxxxx
Attention:
Xxxxxx Xxxxxx
Facsimile:
+ 33 1 53 96 03 83
(C)
if
to the
Buyer, to:
Itron,
Inc.
0000
X.
Xxxxxx Xxxx
Xxxxxxx
Xxxx, XX 00000
Attention: Xxxx
X. Xxxxxxxx
Facsimile: 000-000-0000
with
a
copy (which shall not constitute notice) to:
Xxxxxx,
Xxxx & Xxxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
SECTION
10.5 INTERPRETATION
. When
a reference is made in this Agreement to a Section, Article or Exhibit such
reference shall be to a Section, Article or Exhibit of this Agreement unless
otherwise indicated. The table of contents and headings contained in
this Agreement or in any Exhibit are for convenience of reference purposes
only
and shall not affect in any way the meaning or interpretation of this
Agreement. All words used in this Agreement will be construed to be
of such gender or number as the circumstances require. Any
capitalized terms used in any Exhibit but not otherwise defined therein shall
have the meaning as defined in this Agreement. All Exhibits annexed
hereto or referred to herein are hereby incorporated in and made a part of
this
Agreement as if set forth herein. The word "including" and words of
similar import when used in this Agreement will mean "including, without
limitation", unless otherwise specified.
SECTION
10.6 ENTIRE
AGREEMENT
. This
Agreement (including the Exhibits and Schedules hereto) constitutes the entire
agreement, and supersedes all prior written agreements, arrangements,
communications and understandings and all prior and contemporaneous oral
agreements, arrangements, communications and understandings between the parties
with respect to the subject matter hereof and
thereof. Notwithstanding any oral agreement or course of action of
the parties or their Representatives to the contrary, no party to this Agreement
shall be under any legal obligation to enter into or complete the transactions
contemplated hereby unless and until this Agreement shall have been executed
and
delivered by each of the parties.
SECTION
10.7 NO
THIRD-PARTY BENEFICIARIES
. Nothing
in this Agreement, express or implied, is intended to or shall confer upon
any
Person other than the parties and their respective successors and permitted
assigns and the Persons referred to in Section 6.14 and Article
VIII any legal or equitable right, benefit or remedy of any nature under or
by reason of this Agreement.
SECTION
10.8 GOVERNING
LAW
. This
Agreement and all disputes or controversies arising out of or relating to this
Agreement or the transactions contemplated hereby shall be governed by, and
construed in accordance with, the internal laws of the State of New York,
without regard to the laws of any other jurisdiction that might be applied
because of the conflicts of laws principles of the State of New York (other
than
Section 5-1401 of the New York General Obligations Law).
SECTION
10.9 SUBMISSION
TO JURISDICTION
. Each
of the parties irrevocably agrees that any legal action or proceeding arising
out of or relating to this Agreement brought by any other party or its
successors or assigns shall be brought and determined in any New York State
or
federal court sitting in the Borough of Manhattan in The City of New York (or,
if such court lacks subject matter jurisdiction, in any appropriate New York
State or federal court), and each of the parties hereby irrevocably submits
to
the exclusive jurisdiction of the aforesaid courts for itself and with respect
to its property, generally and unconditionally, with regard to any such action
or proceeding arising out of or relating to this Agreement and the transactions
contemplated hereby. Each of the parties agrees not to commence any
action, suit or proceeding relating thereto except in the courts described
above
in New York, other than actions in any court of competent jurisdiction to
enforce any judgment, decree or award rendered by any such court in New York
as
described herein. Each of the parties further agrees that notice as
provided herein shall constitute sufficient service of process and the parties
further waive any argument that such service is insufficient. Each of
the parties hereby irrevocably and unconditionally waives, and agrees not to
assert, by way of motion or as a defense, counterclaim or otherwise, in any
action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, (i) any claim that it is not personally
subject to the jurisdiction of the courts in New York as described herein for
any reason, (ii) that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or
otherwise) and (iii) that (A) the suit, action or proceeding in
any such court is brought in an inconvenient forum, (B) the venue of such
suit, action or proceeding is improper or (C) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts.
SECTION
10.10 ASSIGNMENT;
SUCCESSORS
. Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement may be assigned or delegated, in whole or in part, by operation of
law
or otherwise, by the Buyer, on the one hand, or the Company or any Stockholder,
on the other hand, without the prior written consent of the Stockholder
Representative or the Buyer, respectively, and any such assignment without
such
prior written consent shall be null and void; provided, however,
that the Buyer may (i) assign any of its rights and interests and delegate
any of its obligations under this Agreement (in whole or in part) to any
Affiliate of the Buyer and (ii) make a collateral assignment of its rights
under this Agreement to its secured lender, in each case without the prior
consent of the Company; providedfurther, that no assignment shall
limit the assignor's obligations hereunder. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and
be
enforceable by, the parties and their respective successors and
assigns.
SECTION
10.11 ENFORCEMENT
. The
parties agree that irreparable damage would occur in the event that any of
the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, each of the
parties shall be entitled to specific performance of the terms hereof, including
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any New
York
State or federal court sitting in the Borough of Manhattan in the City of New
York (or, if such court lacks subject matter jurisdiction, in any appropriate
New York State or federal court), this being in addition to any other remedy
to
which such party is entitled at law or in equity. Each of the parties
hereby further waives (i) any defense in any action for specific
performance that a remedy at law would be adequate and (ii) any requirement
under any law to post security as a prerequisite to obtaining equitable
relief.
SECTION
10.12 CURRENCY
. All
references to "Euros" or "€" or "EUR€" in this Agreement refer to Euro, which is
the single currency of Participating Member States of the European
Union.
SECTION
10.13 SEVERABILITY
. Whenever
possible, each provision or portion of any provision of this Agreement shall
be
interpreted in such manner as to be effective and valid under applicable Law,
but if any provision or portion of any provision of this Agreement is held
to be
invalid, illegal or unenforceable in any respect under any applicable Law or
rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or portion of any provision in such jurisdiction,
and this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion
of any provision had never been contained herein.
SECTION
10.14 WAIVER
OF JURY TRIAL
. EACH
OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING
TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION
10.15 COUNTERPARTS
. This
Agreement may be executed in two or more counterparts, all of which shall be
considered one and the same instrument and shall become effective when one
or
more counterparts have been signed by each of the parties and delivered to
the
other party.
SECTION
10.16 FACSIMILE
SIGNATURE
. This
Agreement may be executed by facsimile signature and a facsimile signature
shall
constitute an original for all purposes.
SECTION
10.17 TIME
OF ESSENCE
. Time
is of the essence with regard to all dates and time periods set forth or
referred to in this Agreement.
SECTION
10.18 NO
PRESUMPTION AGAINST DRAFTING PARTY
. Each
of the parties hereto acknowledges that each party has been represented by
counsel in connection with this Agreement and the transactions contemplated
by
this Agreement. Accordingly, any rule of law or any legal decision
that would require interpretation of any claimed ambiguities in this Agreement
against the drafting party has no application and is expressly
waived.
SECTION
10.19 DISCLOSURE
SCHEDULE
. The
disclosures in the Disclosure Schedules are to be taken as relating to the
representations and warranties of the Company as a whole, notwithstanding the
fact that the Disclosure Schedules are arranged by sections corresponding to
the
sections in this Agreement or that a particular section of this Agreement makes
reference to a specific section of the Disclosure Schedules and notwithstanding
that a particular representation and warranty may not make a reference to the
Disclosure Schedules. The inclusion of information in the Disclosure
Schedules shall not be construed as an admission that such information is
material to any of the Company or its Subsidiaries. In addition,
matters reflected in the Disclosure Schedules are not necessarily limited to
matters required by this Agreement to be reflected in the Disclosure
Schedules. Such additional matters are set forth for informational
purposes only and do not necessarily include other matters of a similar
nature. Neither the specifications of any dollar amount in any
representation, warranty or covenant contained in this Agreement nor the
inclusion of any specific item in the Disclosure Schedules is intended to imply
that such amount, or higher or lower amounts, or the item so included or other
items, are or are not material, and no party shall use the fact of the setting
forth of any such amount or the inclusion of any such item in any dispute or
controversy between the parties as to whether any obligation, item or matter
not
described herein or included in the Disclosure Schedules is or is not material
for purposes of this Agreement. Further, neither the specification of
any item or matter in any representation, warranty or covenant contained in
this
Agreement nor the inclusion of any specific item in the Disclosure Schedule
is
intended to imply that such item or matter, or other items or matters, are
or
are not in the ordinary course of business, and no party shall use the fact
of
setting forth or the inclusion of any such items or matter in any dispute or
controversy between the parties as to whether any obligation, item or matter
not
described herein or included in the Disclosure Schedules is or is not in the
ordinary course of business for purposes of this Agreement.
SECTION
10.20 PROVISION
RESPECTING REPRESENTATION OF COMPANY
. Each
of the parties to this Agreement hereby agrees, on its own behalf and on behalf
of its directors, member, partners, officers, employees and Affiliates, that
Mayer, Brown, Xxxx & Maw LLP may serve as counsel to each and any of the
Stockholder Representative, the Stockholders and their respective Affiliates
(individually and collectively, the "Seller Group"), on the one hand, and
the Company and its Subsidiaries, on the other hand, in connection with the
negotiation, preparation, execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, and that, following
consummation of the transactions contemplated hereby, Mayer, Brown, Xxxx &
Maw LLP (or any successor) may serve as counsel to the Seller Group or any
director, member, partner, officer, employee or Affiliate of the Seller Group,
in connection with any litigation, claim or obligation arising out of or
relating to this Agreement or the transactions contemplated by this Agreement
notwithstanding such representation or any continued representation of the
Company and/or any of its Subsidiaries, and each of the parties hereto hereby
consents thereto and waives any conflict of interest arising therefrom, and
each
of such parties shall cause any Affiliate thereof to consent to waive any
conflict of interest arising from such representation.
SECTION
10.21 AUTHORITY
AND RIGHTS OF STOCKHOLDER REPRESENTATIVE; LIMITATIONS ON
LIABILITY
. The
Stockholder Representative shall have such powers and authority as are necessary
or appropriate to carry out the functions assigned to it under this
Agreement. All actions, notices, communications and determinations by
the Stockholder Representative to carry out such functions shall conclusively
be
deemed to have been authorized by, and shall be binding upon, the
Stockholders. Neither the Stockholder Representative nor any of its
officers, directors, employees, agents, representatives or Affiliates will
have
any liability to the Company, the Buyer or the Stockholders with respect to
actions taken or omitted to be taken by the Stockholder Representative in such
capacity (or any of its officers, directors, employees, agents, representatives
or Affiliates in connection therewith), except with respect to the Stockholder
Representative’s gross negligence or willful misconduct. The
Stockholder Representative shall be entitled to engage such counsel, experts
and
other agents and consultants as it shall deem necessary in connection with
exercising its powers and performing its function hereunder and (in the absence
of bad faith on the part of the Stockholder Representative) shall be entitled
to
conclusively rely on the opinions and advice of such Persons. The
Stockholder Representative (for itself and its officers, directors, employees,
agents, representatives and Affiliates) shall be entitled to full reimbursement
for all reasonable expenses, disbursements and advances (including fees and
disbursements of its counsel, experts and other agents and consultants) incurred
by the Stockholder Representative in such capacity (or any of its officers,
directors, employees, agents, representatives or Affiliates in connection
therewith), and to full indemnification against any Losses arising out of
actions taken or omitted to be taken in its capacity as Stockholder
Representative (except for those arising out of the Stockholder Representative’s
gross negligence or willful misconduct), including, without limitation, the
costs and expenses of investigation and defense of claims, from the Stockholders
(including, without limitation, from funds paid to the Stockholder
Representative under this Agreement and/or otherwise received by it in its
capacity as Stockholder Representative, or funds to be distributed to the
Stockholders under this Agreement at its direction, pursuant to or in connection
with this Agreement). In furtherance of the foregoing, the
Stockholder Representative shall have the power and authority to set aside
and
retain additional funds paid to or received by it, or direct payment of
additional funds to be paid to the Stockholders, as Purchase Price pursuant
to
this Agreement at Closing or thereafter to satisfy such obligations (including
to establish such reserves as the Stockholder Representative determines in
good
faith to be appropriate for such costs and expenses that are not then known
or
determinable. To the extent that the amount included as Stockholder
Representative expenses exceeds such expenses, disbursements or advances, the
Stockholder Representative may retain such excess as a fee for the services
it
provides hereunder. The relationship created herein is not to be
construed as a joint venture or any form of partnership between or among the
Stockholder Representative or any Stockholder for any purpose of federal or
state law, including without limitation, federal or state income tax
purposes. Neither the Stockholder Representative nor any of its
Affiliates owes any fiduciary or other duty to any Stockholder.
SECTION
10.22 FRENCH
TAX DECLARATION
. For
the purpose of the provisions of Article 223 B(c) of the French tax code, the
Buyer hereby declares that its intention is to sell Actaris Holdings France’s
shares to its French holding company as soon as possible after the purchase
of
the Shares and the Convertible Bonds as provided herein.
[The
remainder of this page is intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the date first written above.
ACTARIS
METERING SYSTEMS
hereby
acknowledges and accepts the power given to it in Section 2.1(b) and
undertakes to record, on the Closing Date, (i) in its stockholders’ register the
ownership rights of the Buyer in respect of the Shares and (ii) in its
bondholders’ register the ownership rights of the Buyer in respect of the
Convertible Bonds
By: /s/
Xxxxxx Daussun /s/ Xxxxxxx xx Xxxxxxx
Name:
Xxxxxx Daussun/Xxxxxxx xx
Xxxxxxx
|
|
Title: Directors
|
ITRON,
INC.
By: /s/
Xxxx X. Xxxxx
|
|
Name:
Xxxx X. Xxxxx
|
|
|
Title:
Power of Attorney
|
LBO
FRANCE GESTION SAS,
acting
on
behalf of the FCPRs that it manages, duly represented by its President, Xxxxxxxx
XX Holding SAS, represented by its President, Xxxxxx Daussun
in
its
capacity as Stockholder
By: /s/
Xxxxxx Daussun
|
|
Name:
Xxxxxx Daussun
|
|
|
Title:
President
|
ACTARIS
EXPANSION
By: /s/
Xxxxxxx xx Xxxxxxx
|
|
Name:
Xxxxxxx xx Xxxxxxx
|
|
|
Title:
Power of Attorney
|
SOPERCAP
By: /s/
Clermont Xxxxxx
|
|
Name:
Clermont Xxxxxx
|
|
|
Title:
Administrateur
|
AMS
INVESTISSEMENT
By: /s/
Xxxx-Xxxx Bize
|
|
Name:
Xxxx-Xxxx Bize
|
|
|
Title:
President
|
LBO
FRANCE GESTION SAS,
duly
represented by its President, Xxxxxxxx XX Holding SAS, represented by its
President, Xxxxxx Daussun
in
its
capacity as Stockholder Representative
By: /s/
Xxxxxx Daussun
|
|
Name:
Xxxxxx Daussun
|
|
|
Title:
President
|
