PURCHASE AND ASSUMPTION AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 2nd day
of October 1997, by and among Axiohm IPB, Inc., a Delaware corporation
("IPB"), AX Acquisition Corporation ("AX"), a California corporation and a
wholly-owned subsidiary of IPB, and DH Technology, Inc., a California
corporation ("DH").
WHEREAS, AX, DH and Axiohm S.A., a French corporation ("Axiohm")
are parties to an Agreement and Plan of Merger dated as of July 14, 1997 (the
"Merger Agreement");
WHEREAS, pursuant to the Merger Agreement, AX conducted a tender
offer (the "Tender Offer") pursuant to which it purchased 7,000,000 shares of
the common stock, no par value, of DH (the "DH Common Stock");
WHEREAS, in connection with the closing of the Tender Offer, IPB,
AX and Axiohm entered into (i) a Cumulative Redeemable Exchangeable Preferred
Stock Purchase Agreement, dated as of August 19, 1997, with the purchasers
listed therein and LB I Group Inc. (such agreement, together with all
agreements entered into in connection therewith, is hereinafter referred to
collectively as the "Preferred Stock Agreement") pursuant to which, among
other things, IPB issued to LB I Group Inc., as placement agent, 240 shares
of IPB's Cumulative Redeemable Exchangeable Preferred Stock and (ii) a Credit
Agreement, dated as of August 19, 1997, with Xxxxxx Commercial Paper, Inc.
and the lenders from time to time parties thereto (such agreement, together
with all agreements entered into in connection therewith, is hereinafter
referred to collectively as the "Credit Agreement") pursuant to which, among
other things, AX borrowed $166.2 million;
WHEREAS, simultaneously with the consummation of the transactions
contemplated hereby, AX will consummate the Axiohm Exchange (as defined in
the Merger Agreement), pursuant to which AX will transfer to the shareholders
of Axiohm an aggregate of 5,518,524 shares of DH Common Stock and $12,197,900
in exchange for all of the outstanding shares of capital stock of Axiohm;
WHEREAS, pursuant to the Merger Agreement, the parties hereto
desire that DH purchase from IPB and IPB sell to DH all of the outstanding
shares of the capital stock of AX (the "AX Shares") which are owned by IPB in
exchange for the assumption by DH, on a joint and several basis with AX, of
any and all obligations with respect to indebtedness incurred, or preferred
stock issued, by AX or IPB in connection with the Tender Offer and the Axiohm
Exchange, including such obligations arising pursuant to the Credit Agreement
and the Preferred Stock Agreement;
NOW, THEREFORE, in consideration of the premises, representations,
warranties, covenants, agreements and promises herein contained, the parties
agree as follows:
SECTION 1. PURCHASE AND SALE AX SHARES
At the Closing, IPB shall sell to DH, and DH shall purchase from
IPB, the AX Shares in exchange for the assumption, in accordance with Section
2 hereof, by DH, on a joint and several basis with AX, of any and all
obligations with respect to indebtedness incurred, or preferred stock issued,
by AX or IPB in connection with the Tender Offer and the Axiohm Exchange,
including such obligations arising pursuant to the Credit Agreement and the
Preferred Stock Agreement (collectively, the "Assumed Obligations and
Liabilities").
SECTION 2. ASSUMPTION OF OBLIGATIONS
DH hereby agrees to assume and become responsible for, as of the
Closing Date, on a joint and several basis with AX, the Assumed Obligations
and Liabilities and agrees to pay, perform or otherwise discharge the Assumed
Obligations and Liabilities as and when due. DH hereby agrees to execute and
deliver such further and additional instruments, agreements and other
documents as may be necessary to evidence or carry out the provisions hereof.
SECTION 3. CLOSING
3.1. CLOSING. The sale of the AX Shares and the assumption of the
Assumed Obligations and Liabilities contemplated by this Agreement (the
"Closing") shall occur on October 2, 1997 or such other date and at such
place as may be mutually agreed to by the parties hereto (the "Closing Date").
3.2. DELIVERIES. At the Closing, IPB shall deliver or cause to be
delivered to DH a certificate representing the AX Shares, together with an
executed stock power and such other endorsements, instruments or documents as
may be reasonably necessary or appropriate to carry out the transactions
contemplated hereby. At the Closing, DH shall deliver such instruments,
agreements and other documents as may be necessary to evidence or carry out
the provisions hereof.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF DH
DH hereby represents and warrants to AX and IPB as of the date
hereof and as of the Closing, as follows:
4.1. ORGANIZATION, STANDING AND AUTHORITY. DH is a corporation
which is duly organized, validly existing and in good standing under the laws
of the State of California. DH has all requisite power and authority,
without the consent of any other person, and has taken all necessary action
by its board of directors and has received all necessary approvals from its
shareholders to execute and deliver this Agreement and to carry out the
transactions contemplated hereby.
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4.2. VALIDITY. This Agreement has been duly executed and
delivered and constitutes the lawful, valid and binding obligation of DH,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other laws
affecting the enforcement of creditors rights generally, or by general
equitable principles. No approval, authorization, registration, consent,
order or other action of or filing with any person, including any court,
administrative agency or other government authority, is required for the
execution and delivery by DH of this Agreement or the performance by DH of
its obligations hereunder, other than any consents obtained prior to the time
of execution and delivery.
4.3. ACKNOWLEDGMENT REGARDING AX SHARES. DH acknowledges that (i)
the AX Shares it is receiving hereunder have not been registered in the
United States under the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any country, state or regulatory body and
are being offered and sold in reliance upon exemptions from the requisite
requirements of the Securities Act and such laws and may not be transferred
or resold without registration under such laws unless an exemption is
available and (ii) it is acquiring the AX Shares for investment and not with
a view to the resale or distribution thereof.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF AX AND IPB
AX and IPB each hereby represents and warrants to DH as of the date
hereof and as of the Closing, as follows:
5.1. ORGANIZATION, STANDING AND AUTHORITY. AX is a corporation
which is duly organized, validly existing and in good standing under the laws
of the State of California. IPB is a corporation which is duly organized,
validly existing and in good standing under the laws of the State of
Delaware. Each of AX and IPB has all requisite power and authority, without
the consent of any other person, and has taken all necessary action by the
board of directors and has received all necessary approvals from its sole
shareholder to execute and deliver this Agreement and to carry out the
transactions contemplated hereby.
5.2. VALIDITY. This Agreement has been duly executed and
delivered and constitutes the lawful, valid and legally binding obligation of
each of AX and IPB, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other laws affecting the
enforcement of creditors rights generally, or by general equitable
principles. No approval, authorization, registration, consent, order or
other action of or filing with any person, including any court,
administrative agency or other government authority, is required for the
execution and delivery by either AX or IPB of this Agreement or the
performance by either AX or IPB of its obligations hereunder.
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5.3. THE AX SHARES. At the Closing, IPB will have good and
indefeasible title to the AX Shares and the absolute right to sell, assign,
transfer and deliver the same, free and clear of all claims, security
interests, liens, pledges, charges, escrows, options, proxies, rights of
first refusal, preemptive rights, mortgages, hypothecations, prior
assignments, title retention agreements, voting agreements, transfer
restriction agreements, indentures, security agreements or any other
limitation, encumbrance or restriction of any kind, other than the pledge of
the AX Shares in connection with the Assumed Obligations and Liabilities.
SECTION 6. COVENANTS
IPB hereby covenants and agrees not to, after the date hereof,
sell, transfer, assign, pledge, hypothecate or otherwise dispose of any of
the AX Shares or grant any rights with respect to the AX Shares, or enter
into any agreement with respect thereto, except pursuant to the terms hereof,
and except for the pledge of the AX Shares in connection with the Assumed
Obligations and Liabilities.
SECTION 7. CONDITIONS TO OBLIGATIONS TO CLOSE
The respective obligations of each party to effect the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Closing Date of the following conditions:
7.1. No statute, rule, regulation, executive order, decree,
ruling, injunction or other order (whether temporary, preliminary or
permanent) shall have been enacted, entered, promulgated or enforced by any
United States federal or state court or governmental authority, or any French
national or provincial court or governmental authority, as the case may be,
which prohibits, restrains, enjoins or restricts the consummation of the
transactions contemplated hereby;
7.2. Any waiting period applicable to the transactions
contemplated hereby under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and French law, if applicable, shall have terminated or
expired;
7.3. AX shall own at least 6,500,000 shares of DH Common Stock,
(whether purchased pursuant to the Tender Offer or otherwise acquired), LESS
the number of shares transferred in the Axiohm Exchange; and
7.4. The Axiohm Exchange shall have been consummated.
SECTION 8. TERMINATION
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This Agreement shall terminate and shall be of no further force and
effect if the Closing has not occurred on or before November 30, 1997.
SECTION 9. GENERAL PROVISIONS
9.1. SURVIVAL AND INDEMNIFICATION. All representations,
warranties, covenants and agreements contained in this Agreement or in any
agreement and document delivered pursuant hereto shall be deemed to be
material and to have been relied upon by the parties hereto and to survive
the date hereof. Each party shall indemnify and hold harmless the other from
any and all loss, liability, cost, expense, claim or obligation arising from
any breach of any representation and warranty or failure to fulfill any
covenant or agreement hereunder.
9.2. NOTICES. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or
delivered when delivered personally, when sent via facsimile or when sent by
registered or certified mail addressed as follows:
If to AX or IPB to:
AX Acquisition Corporation or
Axiohm IPB, Inc.
BP 675-1 a xxx X'Xxxxxxx
00000 Xxxxxxxxx Xxxxx, XXXXXX
Facsimile: 11-33-1-49-65-94-13
Attention: Xxxxxxx Xxxxx
If to DH to:
DH Technology, Inc.
00000 Xxxxxx xx Xxxxxxx
Xxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
or to such other address as such party may indicate by a notice delivered to
the other party hereto.
9.3. EXPENSES. Each party to this Agreement shall pay its own
costs and expenses in connection with the transactions contemplated hereby.
9.4. COUNTERPARTS. This Agreement may be executed in two or more
counterparts each of which shall be deemed an original, but all of which
together constitute one and the same instrument.
9.5. ENTIRE TRANSACTION. This Agreement and the Merger Agreement
contain the
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entire understanding among the parties with respect to the actions
contemplated hereby and supersede all other agreements, understandings and
undertakings among the parties on the subject matter hereof.
9.6. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
9.7. AMENDMENTS. The parties hereto, by mutual agreement in
writing, may amend, modify and supplement this Agreement. Any such amendment
shall be validly and sufficiently authorized for purposes of this Agreement
if it is evidenced by a writing signed by the parties hereto.
9.8. INTERPRETATION. Titles and headings to sections herein are
inserted for convenience of reference only and are not intended to be a part
or to affect the meanings or interpretation of this Agreement. Whenever
required by the context, singular numbers shall include the plural and plural
numbers shall include the singular, and the gender of any pronoun shall
include the other gender.
9.9. PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and its successors and
permitted assigns. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has executed or
caused this Agreement to be executed all as of the date first written above.
AX ACQUISITION CORPORATION
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, President
AXIOHM IPB, INC.
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx, President
DH TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Chief Executive Officer
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