EX-2.1
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
BRIGHTPOINT HOLDINGS B.V.
AND
XXXX XXXXXXXXX DU PLESSIS XXXXXX,
THE SOLE SHAREHOLDER OF
PERSEQUOR LIMITED
EFFECTIVE JANUARY 1, 2006
TABLE OF CONTENTS
PAGE
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ARTICLE I STOCK PURCHASE................................................. 1
Section 1.01. Purchase and Sale of Shares............................ 1
ARTICLE II PURCHASE PRICE................................................ 2
Section 2.01. Purchase Price......................................... 2
Section 2.02. Adjustment to Purchase Price........................... 2
ARTICLE III CLOSING...................................................... 2
Section 3.01. The Closing............................................ 2
Section 3.02. Seller's Obligations on Execution Date................. 2
Section 3.03. Buyer's Obligations on Execution Date.................. 3
Section 3.04. Buyer's Conditions..................................... 4
Section 3.05. Buyer's Obligations on Date of Final Payment........... 5
Section 3.06. Termination of Agreement............................... 6
ARTICLE IV REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
SELLER REGARDING THE COMPANY.................................. 6
Section 4.01. Organization and Standing; Authority................... 6
Section 4.02. Capital Structure of the Company and Related Matters;
Owner of Shares........................................ 7
Section 4.03. Subsidiaries........................................... 7
Section 4.04. Transactions with Certain Persons...................... 7
Section 4.05. Financial Statements................................... 8
Section 4.06. Outstanding Debt and Related Matters................... 8
Section 4.07. Taxes.................................................. 8
Section 4.08. Compliance with Laws; No Default or Litigation......... 8
Section 4.09. Absence of Certain Changes............................. 9
Section 4.10. Absence of Undisclosed Liabilities..................... 10
Section 4.11. Real Property.......................................... 10
Section 4.12. Assets................................................. 10
Section 4.13. Intellectual Property.................................. 11
Section 4.14. Contracts.............................................. 11
Section 4.15. Permits................................................ 12
Section 4.16. Labor Relations; Employees............................. 12
Section 4.17. Employee Benefit Plans................................. 13
Section 4.18. Environmental, Health and Safety Matters............... 14
Section 4.19. Bank Accounts.......................................... 14
Section 4.20 Absence of Certain Business Practices.................. 14
Section 4.21. Minute Books and Stock Record Books.................... 14
Section 4.22. Directors and Officers................................. 14
Section 4.23. Brokerage.............................................. 14
Section 4.24. Accounts Receivable.................................... 15
Section 4.25. Insurance.............................................. 15
Section 4.26. Litigation............................................. 15
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Section 4.27. Divested Entity Liabilities............................ 15
Section 4.28. All Material Information............................... 15
ARTICLE V REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
SELLER......................................................... 15
Section 5.01. Authority of Seller; No Violation...................... 15
ARTICLE VI REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF
BUYER......................................................... 16
Section 6.01. Organization........................................... 16
Section 6.02. Authority; Consent..................................... 16
Section 6.03. Consents and Approvals................................. 17
Section 6.04. Litigation............................................. 17
Section 6.05. No Brokers' or Finders' Fees........................... 17
ARTICLE VII SELLER COVENANTS............................................. 17
Section 7.01. Affirmative Covenants.................................. 17
Section 7.02. Access Prior to Date of Final Payment.................. 17
ARTICLE VIII POST-CLOSING COVENANTS...................................... 18
Section 8.01. Retention of Records................................... 18
Section 8.02. Preparation of Tax Returns; Payment of Taxes........... 18
Section 8.03. Survival of Covenants.................................. 18
ARTICLE IX SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
INDEMNIFICATION-DISPUTES...................................... 19
Section 9.01. Survival of Representations and Warranties............. 19
Section 9.02. Sellers' Indemnification............................... 19
Section 9.03. Buyer's Indemnification................................ 19
Section 9.04. Defense of Third-Party Claims.......................... 19
Section 9.05. Direct Claims.......................................... 21
Section 9.06. Limitations............................................ 21
Section 9.07. Payment of Losses...................................... 22
ARTICLE X DEFINITIONS.................................................... 22
ARTICLE XI MISCELLANEOUS................................................. 26
Section 11.01. Assignment; Third Parties; Binding Effect.............. 26
Section 11.02. Expenses............................................... 26
Section 11.03. Notices................................................ 26
Section 11.04. Remedies Not Exclusive................................. 27
Section 11.05. Counterparts/Facsimile Signatures...................... 27
Section 11.06. Captions and Section Headings.......................... 27
Section 11.07. Waivers................................................ 28
Section 11.08. Amendments, Supplements or Modifications............... 28
Section 11.09. Entire Agreement....................................... 28
Section 11.10. Governing Laws......................................... 28
Section 11.11. Interpretive Rules..................................... 28
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Section 11.12. Press Release and Announcements........................ 28
Section 11.13. Severability........................................... 29
Section 11.14. No Strict Construction................................. 29
iii
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into this
23rd day of February, 2006 (the "Execution Date"), to be effective as of January
1, 2006, by and between BRIGHTPOINT HOLDINGS B.V., a private limited liability
company organized and existing under the laws of the Netherlands ("Buyer"), and
XXXX XXXXXXXXX DU PLESSIS XXXXXX, an individual residing in Villa 00, Xxxx Xxxx,
Xxxxxx Xxxx, Xxxxx, Xxxxxx Xxxx Xxxxxxxx and the sole shareholder of Persequor
Limited, a company incorporated in the British Virgin Islands (the "Seller").
PRELIMINARY STATEMENTS
WHEREAS, Persequor Limited (the "Company") is engaged in the business of
distributing wireless telecommunications devices and related accessories and
providing a variety of services with respect thereto, including, without
limitation, receiving, warehousing, fulfillment, programming, order management
and distribution (the "Business");
WHEREAS, Seller owns beneficially and of record one hundred percent (100%)
of the issued and outstanding shares of capital stock of the Company (the
"Shares");
WHEREAS, Buyer desires to acquire all of the Shares;
WHEREAS, the board of directors of Buyer has approved and adopted this
Agreement on the terms and conditions set forth herein;
WHEREAS, Seller has approved and bound himself to the terms and conditions
of this Agreement;
WHEREAS, the parties hereto desire to enter into the transactions
contemplated by this Agreement, all pursuant to the terms and conditions set
forth herein; and
WHEREAS, capitalized terms used herein and not otherwise defined shall have
the meanings set forth in Article X;
NOW THEREFORE, in consideration of the covenants, representations,
warranties and mutual agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
STOCK PURCHASE
SECTION 1.01. PURCHASE AND SALE OF SHARES. Upon and subject to the terms
and conditions set forth in this Agreement, at the Closing, Seller shall sell,
assign, transfer and deliver to Buyer, and Buyer shall purchase, acquire and
take assignment and delivery of, the Shares, free and clear of all Liens,
together with all rights of any nature whatsoever now or hereafter attaching or
accruing to them, and in exchange, Buyer shall pay the Purchase Price to Seller
in accordance with Section 2.01 hereof. Each of the parties hereto acknowledges
and
agrees that Buyer is purchasing the Shares from Seller and Seller is selling the
Shares to Buyer effective as of January 1, 2006 (the "Effective Date").
ARTICLE II
PURCHASE PRICE
SECTION 2.01. PURCHASE PRICE. The aggregate purchase price shall be One
Million US Dollars (US $1,000,000), payable as follows:
(a) Twenty Thousand US Dollars (US $20,000) shall be paid to Seller on
the Execution Date by wire transfer of immediately available United States
funds to an account designated by Seller and communicated to Buyer for that
purpose (the "Execution Date Payment"); and
(b) Nine Hundred Eighty Thousand US Dollars (US $980,000) shall be
paid to Seller by wire transfer of immediately available United States
funds to an account designated by Seller and communicated to Buyer for that
purpose on the completion, to Buyer's reasonable satisfaction, of all of
the conditions set forth in Section 3.04 (the "Final Payment" which
together with the Execution Date Payment, comprises the "Purchase Price"),
provided, however, that the amount of the Final Payment may be adjusted
pursuant to Section 2.02 hereof.
SECTION 2.02. ADJUSTMENT TO PURCHASE PRICE. Following the Execution Date,
the amount of the Final Payment may be adjusted by Buyer, based on the final
audited statements, in the event that any of the conditions set forth in Section
3.04 have not been satisfied by Seller or waived by Buyer prior to February 28,
2006, including without limitation, in the event the Company does not have a net
asset value of at least $850,000 pursuant to Section 3.04(d)(xi).
ARTICLE III
CLOSING
SECTION 3.01. THE CLOSING. The closing of the transactions contemplated by
this Agreement (the "Closing") will take place on the Execution Date; provided,
however, each of the parties hereto acknowledges that for all purposes the
Closing of the transactions shall be effective as of the Effective Date.
SECTION 3.02. SELLER'S OBLIGATIONS ON EXECUTION DATE. On the Execution
Date, Seller shall deliver (or cause to be delivered) to Buyer the following:
(a) A counterpart to this Agreement, executed by Seller;
(b) The disclosure schedules and exhibits to this Agreement;
(c) Original certificates representing the Shares duly endorsed for
transfer to Buyer;
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(d) That certain Employment Agreement, in a form reasonably
satisfactory to Buyer and Seller, by and between Seller and the Company
(the "Employment Agreement"), executed by Seller;
(e) Resignations of the officers and directors of each of the Company
and its Subsidiaries, effective as of the Effective Date;
(f) That certain Termination Agreement, in a form provided by Buyer,
and approved by Seller, by and among Brightpoint India Private Limited
("Brightpoint India"), the Company and Buyer (the "Shareholders Termination
Agreement"), terminating that certain Shareholders Agreement by and among
Brightpoint India, the Company and Buyer, dated as of November 1, 2003, as
amended, executed by the Company;
(g) That certain Termination Agreement, in a form provided by Buyer
and approved by Seller, by and between Brightpoint India and the Company
(the "Brightpoint India Termination Agreement"), terminating that certain
Management Services Agreement by and between Brightpoint India and the
Company, dated as of November 1, 2003, as amended, executed by the Company;
(h) That certain Termination Agreement, in a form provided by Buyer
and approved by Seller, by and between Brightpoint Asia Limited
("Brightpoint Asia") and the Company (the "Brightpoint Asia Termination
Agreement"), terminating that certain Management Services Agreement by and
between Brightpoint Asia and the Company, originally dated as of August 7,
2002, as amended and extended on July 1, 2004, executed by the Company;
(i) That certain Restricted Stock Award Agreement, in a form
reasonably satisfactory to Buyer, by and between Seller and Brightpoint,
Inc. (the "Restricted Stock Award Agreement"), executed by Seller; and
(j) That certain Release, in a form reasonably satisfactory to Buyer,
executed by Seller in favor of Buyer.
SECTION 3.03. BUYER'S OBLIGATIONS ON EXECUTION DATE. On the Execution Date,
Buyer shall deliver (or cause to be delivered) to Seller the following:
(a) A counterpart to this Agreement, executed by Buyer;
(b) Payment of the Execution Date Payment;
(c) A signed copy of board resolutions, or certified copies of
relevant portions thereof, of Buyer, duly passed, approving the entering
into and execution, delivery and performance of the obligations contained
in this Agreement and other agreements contemplated hereby;
(d) A copy of the Shareholders Termination Agreement, executed by
Buyer and Brightpoint India;
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(e) A copy of the Brightpoint India Termination Agreement, executed by
Brightpoint India;
(f) A copy of the Brightpoint Asia Termination Agreement, executed by
Brightpoint Asia;
(g) A copy of the Employment Agreement, executed by Buyer; and
(h) A copy of the Restricted Stock Award Agreement, executed by
Brightpoint, Inc.
SECTION 3.04. BUYER'S CONDITIONS. The obligation of Buyer to deliver the
Final Payment in full shall be subject to the satisfaction of the following
conditions prior to February 28, 2006, any or all of which conditions may be
waived by Buyer in its sole and absolute discretion:
(a) Material Adverse Affect. No fact, event or circumstance shall have
occurred which has had or could reasonably be expected to have a Material
Adverse Affect.
(b) Satisfactory Due Diligence. Buyer, in its reasonable discretion,
shall be satisfied with the results of its due diligence investigation of
the Company and each of its Subsidiaries.
(c) Accuracy of Representations, Warranties and Agreements. The
representations and warranties made by Seller herein shall be true and
correct as of the date of the Execution Date and the date of the Final
Payment. Seller shall have performed and complied with all agreements,
covenants and conditions required by this Agreement to be performed and
complied with by Seller at or prior to the date of the Final Payment.
(d) Seller Deliveries. Buyer shall have received each of the following
deliveries from Seller:
(i) Evidence, in a form reasonably satisfactory to Buyer, that
the Company has divested itself of any ownership of the following
entities: (A) Sequor (Thailand) Limited, (B) Sisu Management Limited,
(C) Afriquor Holdings Limited, (D) Persequor Holdings II Limited; (E)
Persequor Holdings III Limited; (F) Persequor Holdings IV Limited; and
(G) Persequor Holdings V Limited (collectively, the "Divested
Entities");
(ii) The audited consolidated balance sheet and statements of
income and cash flows for the Company and its Subsidiaries as of and
for the fiscal year ended as of December 31, 2005, with an unqualified
report by the accounting firm Ernst & Young LLP;
(iii) Evidence, in a form reasonably satisfactory to Buyer, that
Seller has acquired from or otherwise caused Xxxx Xxxxx Xxxxxxxx
("Kerridge"), Xxxxxx Xxxxx Xxxxxxxx ("Xxxxxxxx") and Xxxxxxx Xxxx
Xxxxxx ("Xxxxxx") to transfer good and valid, marketable and fee title
to the shares of Sequor Systems Limited ("Sequor") owned by Xxxxxxxx,
Xxxxxxxx and Savill, collectively representing a thirty-two percent
(32%)
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minority interest in Sequor, to Buyer or the Company, free and clear
of all Liens, so that the Company will own one hundred percent (100%)
of the issued and outstanding capital stock of Sequor;
(iv) Evidence, in a form reasonably satisfactory to Buyer, that
the Company or one of its Subsidiaries owns, free and clear of all
Liens, one hundred percent (100%) of the issued and outstanding
capital stock of each of Sequor Systems FZE and Persequor Holding I
FZE;
(v) Evidence, in a form reasonably satisfactory to Buyer, that
the Secondment Agreement by and between Brightpoint Asia and the
Company, as amended (the "Secondment Agreement"), is in full force and
effect and will continue in full force and effect after the Effective
Date;
(vi) All necessary and appropriate written waivers of all
restrictions on the transfer of the Shares, including, without
limitation, any preemptive or similar rights, from all relevant
Persons, effective as of the Effective Date;
(vii) Written confirmation from certain key employees of the
Company listed on the attached Exhibit B that they have agreed to
remain as employees of the Company after the Effective Date on terms
and conditions reasonably acceptable to Buyer;
(viii) The current organizational documents (with all
amendments), the common seal, all books of account, all minute books,
the stock ledger, and any other corporate records of the Company;
(ix) Copies of any organizational documents (with all amendments)
of each of the Subsidiaries;
(x) All Closing Approvals;
(xi) Written confirmation, satisfactory to Buyer in its sole and
absolute discretion, that the Company has a net asset value (excluding
any value attributable to shares of Brightpoint India, representing a
fifteen percent (15%) minority interest in Brightpoint India, owned by
the Company) greater than or equal to Eight Hundred Fifty Thousand US
Dollars (US $850,000); for the avoidance of doubt, it is expressly
understood by Buyer that in order to reach a net asset value of US
$850,000, an amount equal to approximately US $525,000 will be
considered as the value of the intangible assets, including software
programs and intellectual property, in addition to capitalized
software development costs of approximately US $415,000 during the
year 2005; and
(xii) Such further certificates, instruments and other documents
requested by Buyer as may be reasonably required to effectively carry
out the intent of this Agreement.
SECTION 3.05. BUYER'S OBLIGATIONS ON DATE OF FINAL PAYMENT. On or before
the date of the Final Payment, Buyer shall deliver (or cause to be delivered) to
Seller the following:
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(a) Payment of the Final Payment, as adjusted pursuant to Section 2.02
hereof if necessary, in accordance with Section 2.01(b) hereof; and
(b) Such further certificates, instruments and other documents
requested by Seller as may be reasonably required to effectively carry out
the intent of this Agreement.
SECTION 3.06. TERMINATION OF AGREEMENT. Anything herein to the contrary
notwithstanding, in lieu of adjusting the amount of the Final Payment in
accordance with Section 2.02 hereof, this Agreement may be terminated by Buyer
if any of Buyer's conditions set forth in Section 3.04 have not been satisfied
or waived by Buyer prior to February 28, 2006.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SELLER
REGARDING THE COMPANY
Seller represents and warrants to Buyer as follows (with the understanding
that Buyer is relying on such representations and warranties in entering into
and performing this Agreement):
SECTION 4.01. ORGANIZATION AND STANDING; AUTHORITY.
(a) Each of the Company and its Subsidiaries is a company duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its formation and is licensed or qualified to conduct the
Business and is in good standing in every jurisdiction where it is required
to be so licensed or qualified. Each of the Company and its Subsidiaries
possesses all requisite corporate power and authority necessary to carry on
the Business as and where now conducted and to own or lease and operate its
properties at and where now owned or leased and operated by it.
(b) Neither the execution and delivery of this Agreement by Seller nor
the consummation of the transactions contemplated hereby, nor compliance by
each of the Company and its Subsidiaries with any of the provisions of this
Agreement, will:
(i) Conflict with, violate, result in a breach of, constitute a
default (or an event which, with or without notice or lapse of time or
both, would constitute a default) under, or give rise to any right of
termination, cancellation or acceleration under any provision of the
Company's or any of its Subsidiaries' charter documents and bylaws or
other organization and/or governing documents, or any of the terms,
conditions or provisions of any note, Lien, bond, mortgage, indenture,
license, lease, contract, commitment, agreement, understanding,
arrangement, restriction or other instrument or obligation to which
the Company or any of its Subsidiaries is a party or by which the
Company, any of its Subsidiaries or any of the properties or assets of
the Company or any of its Subsidiaries, may be bound;
(ii) To Seller's Knowledge, violate any Law applicable to the
Company or any of its Subsidiaries or any properties or assets of the
Company or any of its Subsidiaries; or
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(iii) Constitute an event which, with or without notice, lapse of
time or action by a third party, could result in the creation of any
Lien upon any properties or assets of the Company or any of its
Subsidiaries or cause the maturity of any liability, obligation or
debt of the Company or any of its Subsidiaries to be accelerated or
increased.
(c) Except as set forth on Schedule 4.01, the execution, delivery, and
performance of this Agreement by Seller and the consummation by Seller of
the transactions contemplated hereby, will not require any notice to, or
consent, authorization or approval from, any Governmental Entity or any
other third party on behalf of the Company or any of its Subsidiaries.
SECTION 4.02. CAPITAL STRUCTURE OF THE COMPANY AND RELATED MATTERS; OWNER
OF SHARES. The total authorized, issued and outstanding capital stock of the
Company is set forth on Exhibit A. All outstanding capital stock of the Company
has been duly authorized and validly issued and is fully paid and
non-assessable. There are no outstanding options, warrants or other rights of
any kind to acquire any shares of the Company's capital stock, nor any
outstanding securities convertible into or exchangeable for, or which otherwise
confer on the holder thereof any right to acquire, any shares of the Company's
capital stock. The Company is not committed to issue any such option, warrant,
right, security or capital stock of the Company. As of the Effective Date and
immediately thereafter, the Shares shall constitute all of the issued and
outstanding shares of the Company's capital stock, will be duly authorized,
validly issued, fully-paid and non-assessable and will have been issued free and
clear of all Liens and any preemptive or similar rights.
SECTION 4.03. SUBSIDIARIES. Except for the Subsidiaries, the Company has no
other subsidiaries. Schedule 4.03 attached hereto sets forth a true, complete
and correct list of the Subsidiaries of the Company, and for each Subsidiary of
the Company, (a) its name, (b) the number of authorized shares for each class of
its capital stock, (c) the number of issued and outstanding shares of each class
of its capital stock, (d) the names of the holders of such issued and
outstanding shares and the number and class of shares held by each such holder,
and (e) the number of shares of its capital stock held in treasury. The Company
or one or more of its Subsidiaries holds of record and owns beneficially all of
the outstanding shares of each Subsidiary of the Company, free and clear of any
Liens or Taxes. As of the Effective Date and immediately thereafter, all of the
issued and outstanding shares of capital stock of each Subsidiary of the Company
will be duly authorized, validly issued, fully-paid and non-assessable and will
have been issued free and clear of all Liens and of any preemptive or similar
rights. None of the Subsidiaries has any outstanding options, warrants or other
rights of any kind to acquire any shares of the Subsidiary's capital stock, nor
any outstanding securities convertible into or exchangeable for, or which
otherwise confer on the holder thereof any right to acquire, any shares of the
Subsidiary's capital stock. None of the Subsidiaries is committed to issue any
such option, warrant, right, security or capital stock of the Subsidiary.
SECTION 4.04. TRANSACTIONS WITH CERTAIN PERSONS. Except for compensation
paid for services rendered in the ordinary course of the Business or disclosed
in the Financial Statements, or except as set forth on Schedule 4.04, neither
the Company nor any of its Subsidiaries are owed any amount from, owe any amount
to, have any contracts with or have any commitments to: (a) Seller; (b) any
employee of the Company or any of its Subsidiaries; or (c)
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any Affiliate. Except as set forth on Schedule 4.04, no officer or director of
the Company or any of its Subsidiaries (except in his or her capacity as such)
has any direct or indirect interest in (i) any property or assets of the Company
or any of its Subsidiaries, (ii) to the Knowledge of the Seller, any competitor,
customer, supplier or agent of the Company or any of its Subsidiaries or (iii)
to the Knowledge of the Seller, any Person which is a party to any contract or
agreement with the Company or any of its Subsidiaries.
SECTION 4.05. FINANCIAL STATEMENTS. True and complete copies of the audited
consolidated balance sheet and statements of income and cash flow for the
Company and its Subsidiaries as of and for the fiscal years ended December 31,
2004 and December 31, 2005 (collectively, the "Financial Statements"), are
attached hereto as Schedule 4.05. The Financial Statements are true, correct and
complete, and have been prepared from the books and records of the Company and
its Subsidiaries in accordance with generally accepted accounting principles.
The balance sheets included in the Financial Statements fairly present the
financial condition of the Company and its Subsidiaries as of the respective
dates thereof, and the income statements and statements of cash flows included
in the Financial Statements fairly present the results of operations of the
Company and its Subsidiaries for the periods indicated. The Financial Statements
contain and reflect adequate provisions for all reasonably anticipated
liabilities and adequate reserves for all reasonably anticipated losses, costs
and expenses consistent with past practices.
SECTION 4.06. OUTSTANDING DEBT AND RELATED MATTERS. All outstanding Debt of
the Company and its Subsidiaries is set forth in the Financial Statements. There
exists no default under the provisions of any instrument evidencing such Debt or
of any agreement relating thereto. Except as set forth on Schedule 4.06, neither
Seller nor any other Person has guaranteed any obligation of the Company or its
Subsidiaries, including obligations with respect to Debt.
SECTION 4.07. TAXES. All Returns required to be filed by the Company and
each of its Subsidiaries with respect to any and all Taxes for the Tax periods
ended on or before December 31, 2005 have been filed with the appropriate Taxing
Authorities in all jurisdictions in which such Returns are required to be filed,
and all such Returns are true, correct and complete and have been prepared in
compliance with all applicable Laws. Neither the Company nor any of its
Subsidiaries has received any notice of assessment or proposed assessment in
connection with any Returns and there are no pending tax examinations of or tax
claims asserted against the Company or any of its Subsidiaries, or any of the
Company's or any of its Subsidiaries' assets or properties. Neither the Company
nor any of its Subsidiaries has extended, or waived the application of, any
statute of limitations of any jurisdiction regarding the assessment or
collection of any Taxes. Neither the Company nor any of its Subsidiaries is
subject to any penalty by reason of a violation of any order, rule or regulation
of any Taxing Authority, or with respect to any Return. There are no Liens for
Taxes on any of the assets or properties of the Company or any of its
Subsidiaries except Liens for current Taxes not yet due and payable. Each of the
Company and its Subsidiaries have made all deposits required by Law to be made
with respect to employment taxes, including, without limitation, the portion of
such deposits relating to Taxes imposed upon the Company or any of its
Subsidiaries.
SECTION 4.08. COMPLIANCE WITH LAWS; NO DEFAULT OR LITIGATION. Except as set
forth on Schedule 4.08:
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(a) Each of the Company and its Subsidiaries has materially complied
with all applicable Laws and holds all necessary licenses, consents and
other permissions and approvals required to operate its Business as carried
on by it and has complied with all legal and contractual requirements in
relation to all transactions to which it has been a party; and
(b) Neither the Company nor any of its Subsidiaries is a party to any
litigation, arbitration, administrative proceedings, prosecutions, claims,
disputes, investigations or to any other legal or contractual proceedings
(collectively, "Proceedings") and to the Knowledge of Seller, there are no
facts or circumstances subsisting which can reasonably be expected to give
rise to such Proceedings and there are no unfulfilled or unsatisfied
judgments or court orders against the Company or any of its Subsidiaries.
SECTION 4.09. ABSENCE OF CERTAIN CHANGES. Since December 31, 2005, the
Company and its Subsidiaries have been operated only in the ordinary and normal
course of the Business, consistent with past practice, and there has occurred no
fact, event or circumstance which has had or could reasonably be expected to
have a Material Adverse Effect. Without limiting the generality of the
foregoing, since December 31, 2005, neither the Company nor any of its
Subsidiaries has:
(a) sold, disposed of, transferred, assigned or leased any assets
except for fair consideration in the ordinary course of its Business
consistent with past practices;
(b) created, incurred or assumed any Debt or guaranteed any such
indebtedness except accounts payable incurred in the ordinary course of its
Business consistent with past practices;
(c) changed its accounting policies, procedures or methodologies;
(d) made material commitments or agreements for capital expenditures
or capital additions or betterments of a material nature;
(e) delayed or postponed payment of accounts payable or other
liabilities or obtained or attempted to obtain payment of any notes or
Accounts Receivable owed to it prior to the due date thereof;
(f) other than in the ordinary course of the Business consistent with
past practice or as mutually agreed to by Buyer and the Company, changed
the employment terms of, paid any bonus to, increased any salary or wages
for or entered into any employment Contract with, any Person, instituted,
modified or terminated any employee welfare, bonus, stock option,
profit-sharing, retirement or similar plan or arrangement with any of its
directors, officers or employees or deferred any salary or compensation
owed to any employee, officer, director or independent contractor;
(g) merged into, consolidated with or sold a substantial part of its
assets to any other Person, or permitted any other Person to be merged or
consolidated with it;
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(h) made or suffered any amendment or termination of any Contract, or
cancelled, modified or waived any substantial debts or claims held by it or
waived any rights of substantial value, whether or not in the ordinary
course of the Business;
(i) suffered any material damage, destruction or loss, whether or not
covered by insurance (i) adversely affecting its Business, operations,
assets or properties or (ii) of any item or items carried on its books of
account, or suffered any repeated, recurring or prolonged shortage,
cessation or interruption of supplies or utility or other services required
to conduct its Business; or
(j) declared, set aside, or paid any dividend or made or agreed to
make any other distribution or payment in respect of any shares of its
capital stock, or, directly or indirectly, purchased, redeemed, issued or
otherwise acquired or disposed of any of its shares of capital stock or
granted any option relating to any of its shares of capital stock.
SECTION 4.10. ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth on
Schedule 4.10 or in the Financial Statements or notes thereto, neither the
Company nor any of its Subsidiaries has any liabilities, either direct or
indirect, accrued, matured or unmatured or absolute, contingent or otherwise,
other than those liabilities which are not unusual in nature or amount incurred,
consistent with past practice in the Business, in or as a result of the normal
and ordinary course of the Business.
SECTION 4.11. REAL PROPERTY.
(a) Schedule 4.11(a) contains a complete list of all interests in
real property owned, leased or otherwise held by the Company and each of
its Subsidiaries in the conduct of the Business or upon which its assets
are located, specifying which are leased (the "Real Property"). With
respect to the Real Property:
(i) There is no condemnation proceeding, eminent domain
proceeding or compulsory acquisition order, as applicable, pending or,
to the Knowledge of Seller, threatened against the Real Property;
(ii) There are no facts which would prevent the Real Property
from being occupied after the Effective Date in substantially the same
manner as immediately before the Effective Date; and
(iii) No notice of a violation of any Laws, or of any covenant,
condition, easement or restriction affecting the Real Property or
relating to its use or occupancy has been received, to the Knowledge
of Seller, by the Company.
(b) Except as set forth on Schedule 4.1l(b), the Real Property is not,
to the Knowledge of Seller, subject to any Liens (other than the Lien, if
any, of current property taxes and assessments not yet due and payable).
SECTION 4.12. ASSETS. The Company and its Subsidiaries have good and valid
title to, or a valid and enforceable license or leasehold interest in, the
properties and assets, tangible or intangible, shown on the Balance Sheet or
acquired thereafter, free and clear of all Liens, except
10
for Liens for property taxes not yet due and payable and except for properties
and assets disposed of in the ordinary course of the Business since December 31,
2005. Each of the Company and its Subsidiaries owns, has a valid leasehold
interest in, or has a valid and enforceable license to use, all of the assets,
properties and rights, whether tangible or intangible, necessary for the conduct
of the Business as presently conducted and presently proposed to be conducted.
SECTION 4.13. INTELLECTUAL PROPERTY. Schedule 4.13 sets forth a true,
complete and correct list and summary description of all Intellectual Property
owned or used by the Company or any of its Subsidiaries in the conduct of the
Business. The Company and its Subsidiaries own or are properly licensed to use
all Intellectual Property used in or necessary to conduct the Business. To the
Knowledge of Seller, neither the Company nor any of its Subsidiaries infringe
upon or unlawfully or wrongfully use any Intellectual Property owned or claimed
by another. Neither the Company nor any of its Subsidiaries is in default under,
or has received any notice of any claim of infringement or any other claim or
proceeding relating to any such Intellectual Property. Each of the Company and
its Subsidiaries has taken commercially reasonable measures to protect the
secrecy, confidentiality and value of its trade secrets and proprietary data and
third party trade secrets and proprietary data which have been entrusted to it.
SECTION 4.14. CONTRACTS.
(a) Schedule 4.14(a) lists all contracts, agreements, arrangements and
understandings (whether oral or written), including all amendments thereto,
to which the Company or any if its Subsidiaries is a party (or by which the
assets or properties of the Company or any of its Subsidiaries is bound)
(the "Contracts"), including, without limitation, the agreements set forth
below; provided, however, that an agreement need not be disclosed on
Schedule 4.14(a) and shall not be deemed a "Contract" if it requires the
Company or any of its Subsidiaries to pay, or authorizes the Company or any
of its Subsidiaries to receive aggregate payments of US $10,000 or less in
any given year:
(i) all loans, lines of credit, letters of credit, security
agreements, pledges, mortgages, hypothecations, loan agreements,
guaranties, or other payment or collateral obligations;
(ii) agreements with vendors;
(iii) agreements of guaranty or indemnification;
(iv) agreements, contracts and commitments containing any
covenant, condition or promise limiting the right of the Company or
any of its Subsidiaries to engage in any activity or compete with any
Person;
(v) written employment agreements, contracts, policies and
commitments with any employees, directors or officers, including,
without limitation, those relating to severance;
(vi) agreements with employees as a group or individually;
(vii) contracts with subcontractors and other service providers;
11
(viii) contracts with suppliers and vendors of parts, equipment,
consumables and other items used by the Company or any of its
Subsidiaries in the ordinary course of its Business;
(ix) joint venture or partnership agreements;
(x) software license agreements;
(xi) shareholders agreements or agreements with all or any of the
directors of the Company or any of its Subsidiaries; and
(xii) all other contracts, agreements, purchase orders and
commitments necessary to operate the Business substantially in the
manner in which it historically has been operated.
(b) All of the Contracts are valid and, to Seller's Knowledge, are
binding and enforceable in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, reorganization and similar
laws affecting creditors generally and by the availability of equitable
remedies, are in full force and effect and, except as otherwise specified
on Schedule 4.14(b), will continue in full force and effect after the
Effective Date without the consent of any other party. Except as set forth
on Schedule 4.14(b), there is no existing default by the Company or any of
its Subsidiaries and, to the Knowledge of Seller, there is no existing
default by any third party or any event which, with or without notice or
lapse of time, or both, would constitute a default or result in a right to
accelerate or loss of rights under or with respect to any of the Contracts.
Neither the Company nor any of its Subsidiaries is a party to, and neither
the Company nor any of its Subsidiaries nor any of their assets are bound
by the provisions of, any contract (including purchase orders, blanket
purchase orders and agreements and delivery orders) with any Governmental
Entity.
SECTION 4.15. PERMITS. Each of the Company and its Subsidiaries possesses
all franchises, licenses, permits, certificates, approvals, consents,
clearances, notifications, registrations and other authorizations necessary to
conduct its Business as now conducted (the "Permits") and such Permits are
listed on Schedule 4.15. Except as set forth on Schedule 4.15, all Permits are
in full force and effect and, to the Knowledge of Seller, after the Effective
Date, will continue in full force and effect without the consent of any other
party or Governmental Entity.
SECTION 4.16. LABOR RELATIONS; EMPLOYEES.
(a) Except as set forth on Schedule 4.16(a): (i) each of the Company's
and the Subsidiaries' employees are not members of any trade union; (ii)
neither the Company nor any of its Subsidiaries has agreed to recognize any
trade union or other collective bargaining representative, nor has any
trade union or other collective bargaining representative been certified as
the exclusive bargaining representative of any of its employees; and (iii)
there is no question concerning representation as to any collective
bargaining representative concerning employees of the Company or any of its
Subsidiaries, and no trade union or representative thereof claims to or is
seeking to represent employees of the Company or any of its Subsidiaries.
No trade union organizational campaign or representation petition is
currently
12
pending with respect to any of the employees of the Company or any of its
Subsidiaries, nor has any such campaign or petition occurred at any time
during the previous twenty four (24) months. There is no labor strike or
labor dispute, slowdown, work stoppage or lockout pending or, to the
Knowledge of Seller, threatened against or affecting the Company or any of
its Subsidiaries, and neither the Company nor any of its Subsidiaries has
experienced any labor strike, slowdown, work stoppage or lockout. Except as
set forth on Schedule 4.16(a), neither the Company nor any of its
Subsidiaries is a party to or bound by any collective bargaining agreement,
other labor contract or individual agreement applicable to any of its
employees.
(b) Except as set forth on Schedule 4.16(b), each of the Company and
its Subsidiaries (i) is, and has always been, to the Knowledge of Seller,
in compliance with all applicable Laws regarding labor and employment
practices, including, without limitation, Laws relating to terms and
conditions of employment, equal employment opportunity, employee
compensation, employee benefits, affirmative action, wages and hours, plant
closing and mass layoff, occupational safety and health, immigration,
workers' compensation, disability, unemployment compensation, whistle
blower laws or other employment or labor relations laws, (ii) is not
engaged, nor has it engaged, in any unfair labor practices, and there are
no claims in existence, pending or, to the Knowledge of Seller, threatened
against the Company or any of its Subsidiaries by a current or former
employee for an unfair labor practice, and (iii) has no charges, complaints
or proceedings before an Governmental Entity responsible for regulating
labor or employment practices pending or, to the Knowledge of Seller,
threatened against it.
(c) Schedule 4.16(c) sets forth a true and complete list of all
employees of the Company and each of its Subsidiaries, showing for each
employee name, hire date, current job title or description, current salary
level, accrued but unpaid vacation, any bonus, commission or other
remuneration paid during the most recently completed fiscal year and a list
of other terms of any and all material agreements affecting such employee.
Except as set forth on Schedule 4.16(c), as of the date hereof none of the
employees of the Company or any of its Subsidiaries is currently on
short-term or long term disability, absence, maternity or other leave of
absence. All contracts of service to which the Company or any of its
Subsidiaries is a party can be terminated by it without payment of
compensation (save as provided by applicable Law) and without giving rise
to any claim for damages by three (3) months' notice or less.
(d) The Secondment Agreement is in full force and effect and, to the
Knowledge of Seller, will continue in full force and effect after the
Effective Date without the consent of any other party.
SECTION 4.17. EMPLOYEE BENEFIT PLANS. Schedule 4.17 sets forth a true,
complete and correct list of all "employee benefit plans", bonus, incentive,
deferred compensation, stock or stock option plans or arrangements, severance,
change-in-control and other employee fringe benefit plans or arrangements,
whether oral or written, under which any employee or former employee of the
Company or any of its Subsidiaries has any present or future right to benefits
or under which the Company or any of its Subsidiaries has any liability for
present or future payment of benefits (the "Benefit Plans"). Each Benefit Plan
has been maintained, operated and administered in compliance with its terms and
any related documents or agreements and all
13
applicable Laws, in all material respects. With respect to any Benefit Plan, no
actions, audits, investigations, suits or claims (other than routine claims for
benefits in the ordinary course) are pending or, to the Knowledge of Seller,
threatened.
SECTION 4.18. ENVIRONMENTAL, HEALTH AND SAFETY MATTERS. Except as set forth
on Schedule 4.18, (a) each of the Company and its Subsidiaries has complied and
is in compliance with all applicable Environmental, Health and Safety Laws, in
all material respects; and (b) neither the Company nor any of its Subsidiaries
has received any written requests for information, notice, demand, letter,
administrative inquiry or formal or informal complaint or claim with respect to
the environment.
SECTION 4.19. BANK ACCOUNTS. Set forth on Schedule 4.19 is a true, correct
and complete list of all bank and securities accounts maintained by each of the
Company and its Subsidiaries and a list of persons authorized to sign on behalf
of each of the Company and its Subsidiaries with respect to each such account.
SECTION 4.20. ABSENCE OF CERTAIN BUSINESS PRACTICES. Except as set forth
on Schedule 4.20, neither the Company, its Subsidiaries, Seller nor any other
Persons acting on behalf of any of them has given or agreed to give, directly or
indirectly, any gift or similar benefit to any governmental employee or other
Person who is or may be in a position to help or hinder the Business (or assist
the Company or any of its Subsidiaries in connection with any actual or proposed
transaction relating to the Business), which might subject the Company or any of
its Subsidiaries to any damage or penalty in any civil, criminal or governmental
litigation or proceeding or which, if not continued in the future, could
reasonably be expected to adversely effect the Company or any of its
Subsidiaries.
SECTION 4.21. MINUTE BOOKS AND STOCK RECORD BOOKS. To the Knowledge of
Seller, the minute books of the Company and each of its Subsidiaries contain
complete and accurate records of all official meetings and other official
corporate actions of its shareholders and board of directors, including
committees of the board of directors. The stock record books of the Company and
each of its Subsidiaries contain a complete and accurate record of the current
ownership of all outstanding shares of capital stock of the Company and each of
its Subsidiaries. To the Knowledge of the Seller, all other books and records of
the Company and each of its Subsidiaries are complete and accurate.
SECTION 4.22. DIRECTORS AND OFFICERS. Schedule 4.22 sets forth a true,
complete and correct list of all of the directors and officers of each of the
Company and its Subsidiaries on the date hereof.
SECTION 4.23. BROKERAGE. No agent, broker, investment banker or other
person or firm acting on behalf of any of Seller, the Company, any of the
Subsidiaries of the Company, or the directors or officers of the Company or any
of its Subsidiaries, or under the authority of any of them, is or will be
entitled to any broker's or finder's fee or any other commission or similar fee,
directly or indirectly, from the Company and/or any of its Subsidiaries and/or
Seller in connection with any of the transactions contemplated hereby.
14
SECTION 4.24. ACCOUNTS RECEIVABLE. All Accounts Receivable are presented on
the Balance Sheet net of reserves for doubtful accounts, bona fide claims
against debtors for sales or other charges arising in the ordinary course of the
Business, and no debtor thereunder has asserted any defense thereto. The
Accounts Receivable, net of reserves for doubtful accounts, are collectible in
the ordinary course of the Business (without the necessity of legal
proceedings). All liabilities that should be recorded as accounts payable
pursuant to generally accepted accounting principles are so recorded.
SECTION 4.25. INSURANCE. The assets, properties and operations of the
Company and each of its Subsidiaries are insured under various policies of
general liability and other forms of insurance, all of which have been delivered
to Buyer. All premiums for insurance due through the date hereof have been paid
in full. The insurance coverages maintained by the Company and each of its
Subsidiaries comply with the requirements of all Contracts and all applicable
Laws in all material respects.
SECTION 4.26. LITIGATION. Except as set forth on Schedule 4.26, there is no
action, proceeding or investigation before any Governmental Entity pending or,
to the Knowledge of Seller, threatened in writing against the Company or any of
its Subsidiaries which seeks to enjoin or obtain damages in respect of the
consummation of the transactions contemplated hereby.
SECTION 4.27. DIVESTED ENTITY LIABILITIES. Except as set forth on Schedule
4.27, neither the Company nor any of its Subsidiaries have any liabilities,
either direct or indirect, accrued, matured or unmatured or absolute, contingent
or otherwise, related to or resulting from any of the Divested Entities.
SECTION 4.28. ALL MATERIAL INFORMATION. No representation or warranty made
herein by Seller and no statement contained in any certificate or other
instrument furnished or to be furnished to Buyer by Seller in connection with
the transactions contemplated by this Agreement contains or will contain an
untrue statement of a material fact or omits or will omit to state any material
fact necessary in order to make any representation, warranty, or other statement
of Seller not misleading.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF SELLER
Seller represents and warrants to Buyer as follows (with the understanding
that Buyer is relying on such representations and warranties in entering into
and performing this Agreement):
SECTION 5.01. AUTHORITY OF SELLER; NO VIOLATION.
(a) Seller has the full capacity, right, power and authority to enter
into, execute and deliver this Agreement, to consummate the transactions
contemplated by this Agreement, and to comply with and fulfill the terms
and conditions of this Agreement. This Agreement constitutes a valid and
binding obligation of Seller, enforceable in accordance with its terms and
conditions, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization and similar laws affecting creditors generally
and by the availability of equitable remedies. Neither the execution and
delivery of this Agreement nor the
15
consummation of the transactions contemplated hereby, will constitute an
event which, with or without notice, lapse of time or action by a third
party, could result in the creation of any Lien upon any of the Shares
owned by Seller.
(b) Except as set forth on Schedule 5.01, the execution, delivery and
performance by Seller of this Agreement and the consummation by Seller of
the transactions contemplated hereby will not require any notice to, or
consent, authorization or approval from, any Governmental Entity or any
other third party.
(c) Seller is the holder of record and owns beneficially all of the
Shares, free and clear of all Liens. As of the Effective Date, Buyer will
receive good and valid title to the Shares owned by Seller, free and clear
of all Liens.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF BUYER
Buyer represents and warrants to Seller as follows (with the understanding
that Seller is relying on such representations and warranties in entering into
and performing this Agreement):
SECTION 6.01. ORGANIZATION. Buyer is a company duly organized, validly
existing and in good standing under the Laws of the Netherlands. Buyer has all
the requisite power and authority to own, lease and operate its properties and
carry on its business as it is now being conducted.
SECTION 6.02. AUTHORITY; CONSENT. Buyer has the full capacity, right, power
and authority to enter into, execute and deliver this Agreement, to consummate
the transactions contemplated by this Agreement and to comply with and fulfill
the terms and conditions of this Agreement. The execution and delivery of this
Agreement by Buyer and the consummation by Buyer of the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on the part of Buyer. This Agreement constitutes a valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms and
conditions. No further action is necessary by Buyer to make this Agreement valid
and binding upon Buyer and enforceable against Buyer in accordance with the
terms hereof or to carry out the transactions contemplated hereby. Neither the
execution and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, nor compliance by Buyer with any of the
provisions of this Agreement, will:
(a) Conflict with, violate, result in a breach of, constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or give rise to any right of termination,
cancellation or acceleration under any provision of Buyer's charter
documents or bylaws or other organization and/or governing documents, or
under any of the terms, conditions or provisions of any note, Lien, bond,
mortgage, indenture, license, lease, contract, commitment, agreement,
understanding, arrangement, restriction or other instrument or obligation
to which Buyer is a party or by which Buyer or any of its respective
properties or assets may be bound;
(b) Violate any Law applicable to Buyer or any properties or assets of
Buyer; or
16
(c) Constitute an event which, with or without notice, lapse of time
or action by a third party, could result in the creation of any Lien, upon
any of the assets or properties of Buyer, or cause the maturity of any
liability, obligation, or debt of Buyer to be accelerated or increased.
SECTION 6.03. CONSENTS AND APPROVALS. Except as set forth on Schedule 6.03,
the execution and delivery by Buyer of this Agreement and the consummation by
Buyer of the transactions contemplated hereby will not require any notice to, or
consent, authorization, or approval from any Governmental Entity or any other
third party. Except as set forth on Schedule 6.03, any and all notices,
consents, authorizations and approvals set forth on Schedule 6.03 have been made
and obtained.
SECTION 6.04. LITIGATION. Except as set forth on Schedule 6.04, there is no
action, proceeding or investigation before any Governmental Entity pending or,
to the Knowledge of Buyer, threatened in writing against Buyer which seeks to
enjoin or obtain damages in respect of the consummation of the transactions
contemplated hereby.
SECTION 6.05. NO BROKERS' OR FINDERS' FEES. No agent, broker, investment
banker or other person or firm acting on behalf of Buyer or any of its
respective directors or officers, or under the authority of any of them, is or
will be entitled to any broker's or finder's fee or any other commission or
similar fee, directly or indirectly, from Buyer in connection with any of the
transactions contemplated hereby.
ARTICLE VII
SELLER COVENANTS
Between the Execution Date and the date of the Final Payment:
SECTION 7.01. AFFIRMATIVE COVENANTS. Seller shall cause the Company and
each of its Subsidiaries to:
(a) Operate the Business in the ordinary course consistent with past
practice; and
(b) Comply in all material respects with all applicable Laws.
SECTION 7.02. ACCESS PRIOR TO DATE OF FINAL PAYMENT. Prior to the date of
the Final Payment, Seller, the Company and each of its Subsidiaries shall
provide Buyer and its representatives with reasonable access (at reasonable
times, on reasonable prior notice and in a manner so as not to interfere with
the normal business operations of the Company or any of its Subsidiaries or the
Business) to, and will make available for inspection and review, all properties,
books, records and accounts and personnel of the Company and each of its
Subsidiaries in order that Buyer may have a reasonable opportunity to make such
investigation as it shall desire to make of the Business, the Company and each
of its Subsidiaries subject to Buyer agreeing to ensure that all such
information shall be treated by it and its representatives as strictly
confidential at all times.
17
ARTICLE VIII
POST-CLOSING COVENANTS
SECTION 8.01. RETENTION OF RECORDS. Each of the Company and its
Subsidiaries shall retain possession of all files and records which relate to
the Business before the Effective Date, for a period of at least seven (7) years
from the Effective Date. In addition, from and after the Effective Date, upon
reasonable notice and during normal business hours, Buyer shall provide access
to Seller and his attorneys, accountants and other representatives, at Seller's
expense, to such files and records as Seller may reasonably deem necessary to
properly prepare for, file, prove, answer, prosecute and/or defend any Return,
filing, audit, protest, claim, suit, inquiry or other proceeding in connection
with the Business relating to periods preceding the Effective Date.
SECTION 8.02. PREPARATION OF TAX RETURNS; PAYMENT OF TAXES.
(a) Seller shall be responsible for preparing and filing with the
appropriate Taxing Authorities all Returns with respect to the Company and
its Subsidiaries for any taxable period ending on or prior to the Effective
Date. Buyer, including the Company and its Subsidiaries following the
Effective Date, will cooperate with Seller to make available all necessary
records and timely take all action necessary to allow Seller to file, or
prepare to file, as the case may be, any such Returns, including, without
limitation, by providing or causing to be provided to Seller any powers of
attorney that Seller reasonably requests for purposes of filing any
Returns. Seller shall prepare such Returns in accordance with the Company's
and its Subsidiaries' past practices.
(b) Buyer, including the Company and its Subsidiaries following the
Effective Date, shall be responsible for preparing and filing with the
appropriate Taxing Authority all Returns that relate to the Taxes of the
Company and its Subsidiaries other than those described in Section 8.02(a),
above, and for paying all Taxes shown as due by the Company and its
Subsidiaries on such Returns. Seller shall cooperate with Buyer and make
available any necessary records and timely take any action reasonably
necessary to allow Buyer (including the Company and its Subsidiaries
following the Effective Date) to file, or prepare and file, as the case may
be, any Returns of the Company and its Subsidiaries as contemplated in this
Section 8.02(b).
(c) Seller will not file or cause to be filed any amended Return which
adversely affects the Tax liability of the Company or any of its
Subsidiaries, or can be reasonably expected to adversely affect the future
Tax liability of the Company or any of its Subsidiaries, without the prior
written consent of Buyer. Buyer will not file or allow or cause to be filed
any amended Return for the Company or any of its Subsidiaries covering any
period or adjusting any Taxes for a period which includes any period ending
on or prior to the Effective Date which adversely affects the tax liability
of the Company or any of its Subsidiaries, without the prior written
consent of Seller.
SECTION 8.03. SURVIVAL OF COVENANTS. Notwithstanding the Closing of the
transactions contemplated under this Agreement, the covenants contained in this
Article VIII
18
shall survive the Closing and shall remain enforceable thereafter against each
of the Company and its Subsidiaries, Buyer and Seller in accordance with their
terms.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION;
DISPUTES
SECTION 9.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Notwithstanding
the Closing of the transactions contemplated under this Agreement, or any
investigation made by or on behalf of Buyer or the Knowledge of Buyer, but
subject to the limitations set forth in Section 9.06 below, the representations
and warranties of Seller contained in this Agreement shall survive the Closing.
SECTION 9.02. SELLERS' INDEMNIFICATION. Seller shall indemnify, defend and
hold harmless Buyer, the Company (from and after the Effective Date) and each of
Buyer's and the Company's respective Affiliates, subsidiaries, shareholders,
directors, officers, employees and agents, other than Seller and his Affiliates
(not including the Company) (collectively, "Buyer's Indemnitees") from any and
all Losses resulting from or attributable to (i) the breach of, or misstatement
in, any one or more of the representations or warranties of Seller set forth in
this Agreement, (ii) any claims, demands, suits, investigations, proceedings or
actions by any third party containing or relating to allegations that, if true,
would constitute a breach of, or misstatement in, any one or more of the
representations or warranties of Seller set forth in this Agreement, (iii) the
failure to perform or breach of any of the covenants of Seller set forth in this
Agreement, (iv) the operation of the Business prior to the Effective Date, and
(v) any liability related to or resulting from any of the Divested Entities.
SECTION 9.03. BUYER'S INDEMNIFICATION. Buyer shall indemnify, defend and
hold harmless Seller and his Affiliates (other than the Company) from any and
all Losses resulting from or attributable to (i) the breach of, or misstatement
in, any one or more of the representations or warranties of Buyer set forth in
this Agreement, (ii) any claims, demands, suits, investigations, proceedings or
actions by any third party containing or relating to allegations that, if true,
would constitute a breach of, or misstatement in, any one or more of the
representations or warranties of Buyer set forth in this Agreement, or (iii) the
failure to perform or breach of any of the covenants of Buyer set forth in this
Agreement.
SECTION 9.04. DEFENSE OF THIRD-PARTY CLAIMS.
(a) In the event that any party shall claim that it is entitled to be
indemnified pursuant to the terms of this Article IX, such party (the
"Claiming Party") shall promptly notify the party against which the claim
is made (the "Indemnifying Party") in writing (a "Claim Notice") of such
claim promptly after the Claiming Party receives notice of any action,
proceeding, investigation, audit, examination, demand or assessment or
other claim of a third party, including a Governmental Entity (a "Third
Party Claim"), that may reasonably be expected to result in a claim for
indemnification by the Claiming Party against the Indemnifying Party. The
Claim Notice shall specify the breach of warranty, representation,
agreement or covenant claimed by the Claiming Party and the Losses which
may have been or may be incurred by, or imposed upon, the Claiming Party on
account thereof with reasonable
19
particularity. If such Losses are liquidated in amount, the Claim Notice
shall so state and such amount shall be deemed the amount of the claim of
the Claiming Party. If such Losses are not liquidated, the Claim Notice
shall so state and, in such event, a claim shall be deemed asserted against
the Indemnifying Party on behalf of the Claiming Party, but no payment
shall be made on account thereof until the amount of such claim is
liquidated and the claim is finally determined.
(b) The following provisions shall apply to claims of the Claiming
Party which are based upon a Third Party Claim:
(i) The Indemnifying Party shall have the option, exercisable at
any time in the ten (10) days following receipt of the Claim Notice,
at its expense, to defend such Third Party Claim in its own name or,
if necessary, in the name of the Claiming Party. The Claiming Party
shall cooperate with and make available to the Indemnifying Party such
assistance and materials as may be reasonably requested of the
Claiming Party, and the Claiming Party shall have the right, at the
Claiming Party's expense, to participate in the defense. The
Indemnifying Party shall have the right to settle and compromise such
Third Party Claim only with the prior written consent of the Claiming
Party (which consent shall not be unreasonably withheld, conditioned
or delayed) unless the following shall apply (in which case the
Indemnifying Party may settle and compromise such Third Party Claim
without the prior written consent of the Claiming Party): (A) there is
no finding or admission of any violation of Law or any violation of
the rights of any Person and no affect on any other claims that may be
made against the Claiming Party; and (B) the sole relief provided is
monetary damages that are paid in full by the Indemnifying Party. If
the Claiming Party fails to consent to any settlement or compromise
offer, the Indemnifying Party may continue to contest such Third Party
Claim and, in such event, the maximum liability of the Indemnifying
Party for such Third Party Claim shall not exceed such settlement or
compromise offer.
(ii) Regardless of whether the Indemnifying Party elects to
defend the Third Party Claim, the Indemnifying Party shall also have
the right within twenty (20) days from receipt of the Claim Notice to
notify the Claiming Party that the Indemnifying Party disputes the
merits or amount of the Third Party Claim and/or that the Third Party
Claim is the subject of indemnification hereunder. Such dispute shall
not affect the Indemnifying Party's right to defend the Third Party
Claim under subsection (i), above.
(iii) In the event the Indemnifying Party does not notify the
Claiming Party that the Indemnifying Party wishes to defend, or fails
to adequately defend, such Third Party Claim, then the Claiming Party
shall have the right to conduct a defense against such Third Party
Claim and shall have the right to settle and compromise such Third
Party Claim without having to first obtain the consent of the
Indemnifying Party.
(c) The Indemnifying Party shall have twenty (20) days from the
receipt of a Claim Notice to notify the Claiming Party that the
Indemnifying Party disputes such claim. If the Indemnifying Party does not
timely notify the Claiming Party of such dispute, then the amount of such
claim shall be deemed, conclusively, a liability of the Indemnifying Party
hereunder.
20
SECTION 9.05. DIRECT CLAIMS. In any case in which the Claiming Party seeks
indemnification hereunder which is not subject to Section 9.04 because no Third
Party Claim is involved, the Claiming Party shall notify the Indemnifying Party
in writing of any Losses which the Claiming Party claims are subject to
indemnification under the terms hereof. The failure of the Claiming Party to
exercise promptness in such notification shall not constitute a waiver of such
claim unless the resulting delay materially prejudices the position of the
Indemnifying Party with respect to such claim.
SECTION 9.06. LIMITATIONS.
(a) Maximum Amount of Indemnified Costs. In no event shall the
Indemnifying Party in the aggregate be liable to the Claiming Party for
Losses which exceed the Purchase Price (actually received by Seller),
except this limitation shall not apply to any claims involving fraud, bad
faith, or intentional misconduct or to claims relating to breach of, or
misstatement in, any representation or warranty or covenant set forth in
any of the following Sections: 4.01, 5.01, 4.02, 4.03, 4.07, 6.01, or
9.02(v), unless otherwise barred by the applicable statute of limitations
or other Law ("Indemnification Cap").
(b) In no event will any amount be recovered from the Indemnifying
Party for Losses until the aggregate amount of all such Losses incurred by
the Claiming Party exceed US $50,000, in which event the Indemnifying Party
will be obligated, subject to the other provisions of this Agreement, to
indemnify the Claiming Party to the full extent of any such Losses that
exceeds US $50,000; provided, however, that Seller's liability for any
Losses will not be limited as set forth above in this Section 9.06(b) if
such Losses relate to a breach of any representation, warranty or covenant
contained in Sections 4.01, 5.01, 4.02, 4.03, 4.07, 6.01 or Section
9.02(v).
(c) Limitation as to Time. No Indemnifying Party shall be liable for
any Losses with respect to a breach of a representation or warranty unless
a written claim for indemnification is given by the Claiming Party to the
Indemnifying Party with respect thereto on or before the date which is two
(2) years after the Effective Date, except this limitation shall not apply
to any claims involving fraud, bad faith, or intentional misconduct or to
claims relating to breach of, or misstatement in, any representation,
warranty or covenant set forth in any of the following Sections: 4.01,
5.01, 4.02, 4.03, 4.07, 6.01, or 9.02(v) unless otherwise barred by the
applicable statute of limitations or other Law.
(d) Seller will have no liability in respect of any claim of
indemnification:
(i) to the extent that it arises or is increased as a result of
the passing of, or change in, any law, rule, regulation,
interpretation of the law or administrative practice of a government,
government department, agency or regulatory body.
(ii) to the extent that it relates to any Loss for which Buyer or
any Affiliate has recovered or will reasonably recover under an
existing contract of insurance (but not including any deductible or
self-retention limit).
(e) If any potential claim of indemnification arises as a result of a
contingent or unquantifiable liability of any Affiliate, Seller will not be
obliged to pay any sum in respect of
21
the potential claim until the liability either ceases to be contingent or
becomes reasonably quantifiable.
(f) Seller will have no liability in respect of any claim of
indemnification to the extent that the circumstances of such claim are
within the Knowledge of Buyer, as of the date of this Agreement.
(g) Any payment made by Seller in respect of any claim of
indemnification will be deemed to be a reduction in the Purchase Price
payable.
SECTION 9.07. PAYMENT OF LOSSES. The Indemnifying Party shall pay to the
Claiming Party in cash the amount to which the Claiming Party may become
entitled by reason of the provisions of this Article IX, such payment to be made
within ten (10) days after such amount is finally determined either by mutual
agreement of the parties or pursuant to the final unappealable judgment of a
court of competent jurisdiction.
ARTICLE X
DEFINITIONS
As used in this Agreement, the following terms have the meanings indicated
below:
"Accounts Receivable" means all accounts and notes receivable, rights to
refunds, and deposits of any kind of the Company and its Subsidiaries.
"Affiliate" means any individual, corporation, general partnership, limited
partnership, limited liability partnership, joint venture, association, limited
liability company, joint stock company, trust, or unincorporated organization,
that directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with the Company or any of its
Subsidiaries or Seller. For purposes of this definition, "control" means the
ability to direct the operation or management of a Person, whether by contract,
ownership of securities, status as director, officer or other position therein,
or otherwise.
"Agreement" has the meaning specified in the preamble.
"Balance Sheet" means the audited consolidated balance sheet of the Company
and its Subsidiaries as of December 31, 2005 delivered to Buyer as part of the
Financial Statements pursuant to this Agreement.
"Benefit Plans" has the meaning specified in Section 4.17.
"Brightpoint Asia" has the meaning specified in Section 3.02(h).
"Brightpoint Asia Termination Agreement" has the meaning specified in
Section 3.02(h).
"Brightpoint India" has the meaning specified in Section 3.02(f).
"Brightpoint India Termination Agreement" has the meaning specified in
Section 3.02(g).
22
"Business" has the meaning specified in the Preliminary Statements of this
Agreement.
"Buyer" has the meaning specified in the preamble.
"Buyer's Indemnitees" has the meaning specified in Section 9.02.
"Claiming Party" has the meaning specified in Section 9.04(a).
"Claim Notice" has the meaning specified in Section 9.04(a).
"Closing" has the meaning specified in Section 3.01.
"Closing Approvals" means all approvals, consents (including, without
limitation, Free Trade Zone consents) or waivers required to be obtained by
Seller, the Company or any of its Subsidiaries to consummate the transactions
contemplated by this Agreement, including any consents or approvals required to
avoid a default under any Contract resulting from the transactions described
herein, required by any Governmental Entity or any other approvals, consents or
waivers necessary or appropriate to consummate the transactions contemplated by
this Agreement.
"Company" has the meaning specified in the Preliminary Statements of this
Agreement.
"Contracts" has the meaning specified in Section 4.14(a)
"Debt" means (i) any obligations under any indebtedness for borrowed money
(including, without limitation, all obligations for principal, interest,
premiums, penalties, fees, expenses, breakage costs and bank overdrafts
thereunder), (ii) any indebtedness evidenced by any note, bond, debenture or
other debt security, (iii) any commitment by which a Person assures a creditor
against loss (including contingent reimbursement obligations with respect to
letters of credit), (iv) any indebtedness pursuant to a guarantee, (v) any
indebtedness secured by a Lien on a Person's assets, (vi) any obligations under
capitalized leases or with respect to which a Person is liable, contingently or
otherwise, as obligor, guarantor or otherwise, or with respect to which
obligations a Person assures a creditor against loss and (vii) all obligations
for the deferred and unpaid purchase price of property or services (other than
trade payables and accrued expenses incurred in the ordinary course of the
Business consistent with past practice).
"Divested Entities" has the meaning specified in Section 3.04(d)(i).
"Effective Date" has the meaning specified in Section 1.01.
"Employment Agreement" has the meaning specified in Section 3.02(d).
"Environmental, Health and Safety Laws" means any applicable Laws relating
to the environment, safety, or health.
"Execution Date" has the meaning specified in the preamble.
"Execution Date Payment" has the meaning specified in Section 2.01(a).
23
"Final Payment" has the meaning specified in Section 2.01(b).
"Financial Statements" has the meaning specified in Section 4.05.
"Governmental Entity" means any court, arbitrator, government agency,
department, commission, board, bureau, authority, instrumentality or other body
exercising executive, legislative, judicial, regulatory or administrative
functions of government in each case having jurisdiction over the Company or any
of its Subsidiaries.
"Indemnification Cap" has the meaning specified in Section 9.06(a).
"Indemnifying Party" has the meaning specified in Section 9.04(a).
"Intellectual Property" means any and all of the following in any
jurisdiction throughout the world: (i) inventions (whether or not patentable or
reduced to practice), patents, patent applications and patent disclosures and
improvements thereto together with all reissuances, continuations,
continuations-in-part, divisions, revisions, extensions and reexaminations
thereof, (ii) trademarks, service marks, trade dress, trade names, slogans,
logos, designs, Internet domain names, and corporate names, together with all
translations, adaptations, derivations, and combinations thereof, and all
goodwill associated with any of the foregoing, and all applications,
registrations and renewals in connection therewith, (iii) copyrights and works
of authorship and all applications, registrations and renewals in connection
therewith, (iv) computer software (including source code, executable code, data,
data bases, firmware and related documentation), (v) trade secrets and other
confidential information (including, ideas, formulas, recipes, compositions,
know-how, manufacturing and production processes and techniques, research and
development, drawings, specifications, designs, plans, proposals, technical
data, financial, business and marketing plans, customer and supplier lists and
price and cost information) and all advertising and promotional materials, (vi)
all other intellectual property and proprietary rights, and (vii) all copies and
tangible embodiments of any of the foregoing (in whatever form or medium).
"Kerridge" has the meaning specified in Section 3.04(d)(iii).
"Knowledge of Buyer" or words of like import means, with respect to the
existence or absence of a fact, the actual knowledge of an officer of Buyer, or
any knowledge they would have after conducting a reasonable inquiry of the
subject matter in question.
"Knowledge of Seller" or words of like import means, with respect to the
existence or absence of a fact, the actual knowledge of Seller or any officer of
the Company or any of its Subsidiaries, or any knowledge they would have after
conducting a reasonable inquiry of the subject matter in question.
"Law" or "Laws" mean all statutes, regulations, ordinances, laws, rules,
orders, codes, decrees, judgments, consent decrees, writs, injunctions, acts or
governmental requirement enacted, promulgated, entered into, agreed or imposed
by any Governmental Entity.
"Lien" or "Liens" means, with respect to any asset, including the assets of
the Company or any of its Subsidiaries or the Shares, any and all mortgages,
liens, claims, charges, pledges, or
24
other encumbrances of any nature whatsoever, including without limitation
licenses, leases, chattel or other mortgages, collateral security arrangements,
pledges, title imperfections, defect or objection liens, security interests,
conditional and installment sales agreements, charges, easements, encroachments
or restrictions, rights of third parties, or any other interests of any kind or
character whatsoever.
"Losses" means all damages, losses, deficiencies, liabilities, claims,
actions, demands, judgments, fines, fees, costs and expenses (including without
limitation reasonable legal and accountants' fees).
"Material Adverse Effect" means a material and adverse effect upon (i) the
Business, operations, assets, liabilities, condition (financial or otherwise),
cash flows, properties or operating results of the Company and its Subsidiaries
taken as a whole, or (ii) the ability of the Company or Seller to consummate the
transactions contemplated hereby or perform their respective obligations
hereunder.
"Xxxxxxxx" has the meaning specified in Section 3.04(d)(iii).
"Permits" has the meaning specified in Section 4.15.
"Person" means any individual, corporation, general partnership, limited
partnership, limited liability partnership, joint venture, association, limited
liability company, joint stock company, trust, or unincorporated organization,
or any governmental agency, officer, department, commission, board, bureau, or
instrumentality thereof.
"Proceedings" has the meaning specified in Section 4.08(b).
"Purchase Price" has the meaning specified in Section 2.01(b).
"Real Property" has the meaning specified in Section 4.11.
"Restricted Stock Award Agreement" has the meaning specified in Section
3.02(i).
"Returns" means any return, report, information report, declaration,
estimate, return statement or filing with respect to Taxes, including any
schedules or attachment thereto and including any amendment thereof.
"Savill" has the meaning specified in Section 3.04(d)(iii).
"Secondment Agreement" has the meaning specified in Section 3.04(d)(v).
"Seller" has the meaning specified in the preamble of this Agreement.
"Sequor" has the meaning specified in Section 3.04(d)(iii).
"Shareholders Termination Agreement" has the meaning specified in Section
3.02(f).
"Shares" has the meaning specified in the Preliminary Statements of this
Agreement.
25
"Subsidiaries" means each of (i) Sequor Systems Limited; (ii) Sequor
Systems FZE; (iii) Persequor Holdings I Limited; and (iv) Persequor Holding I
FZE.
"Tax" or "Taxes" mean all taxes (including without limitation all income
tax, excise, value added taxes, occupancy, employment, unemployment
compensation, ad valorem, customs duties, transfer, privilege, property,
franchise, license, payroll, social security, sales and use, and any other tax
or similar governmental charge or imposition under applicable Laws), levies,
imposts, fees, impositions, assessments and other governmental charges of any
nature imposed upon a Person, and all related additions to tax, penalties or
interest thereon.
"Taxing Authority" means any Governmental Entity having responsibility for
the imposition of any Tax.
"Third-Party Claim" has the meaning specified in Section 9.04(a).
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. ASSIGNMENT; THIRD PARTIES; BINDING EFFECT. The rights under
this Agreement are not assignable nor are the duties delegable by a party
without the written consent of the other party first having been obtained, and
any attempted assignment or delegation without such consent will be null and
void; provided, however, that the rights and duties of Buyer under this
Agreement are assignable or delegable by Buyer without the advance consent of
Seller to a party controlled by, controlling or under common control with Buyer
so long as Buyer guarantees the performance of such transferee of Buyer's
obligations hereunder. Nothing contained in this Agreement is intended to convey
upon any person or entity, other than the parties and their successors in
interest and permitted assigns, any rights or remedies under or by reason of
this Agreement unless expressly stated. All covenants, agreements,
representations and warranties of the parties contained in this Agreement are
binding on and will inure to the benefit of the respective successors and
permitted assigns of the parties hereto.
SECTION 11.02. EXPENSES. Buyer and Seller will bear their own respective
expenses, including without limitation, counsel and accountants' fees, in
connection with the preparation and negotiation of, and transactions
contemplated under, this Agreement; provided, however, that expenses, including
reasonable legal fees, incurred by one party to enforce the terms of this
Agreement shall be recoverable against the breaching party.
SECTION 11.03. NOTICES. All notices, requests, demands and other
communications under this Agreement must be in writing and will be deemed duly
given, unless otherwise expressly indicated to the contrary in this Agreement,
(i) when personally delivered, (ii) upon receipt of a telephonic facsimile
transmission with a confirmed telephonic transmission answer back, or (iii)
three (3) days after having been deposited with an international overnight
courier service, addressed to the parties or their permitted assigns at the
following addresses (or at such other address or number as is given in writing
by either party to the other) as follows:
To Buyer: Brightpoint Holdings B.V.
c/o Brightpoint, Inc.
000 Xxxxxxx Xxxxxxx
00
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
With a copy to: Ice Xxxxxx LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. XxXxxxx
To Seller: Xxxx Xxxxxxxxx Du Plessis Xxxxxx
Persequor Limited
c/o Persequor Holding I FZE
000 Xxxx Xxxx
X.X. Xxx 00000
Xxxxx Airport Free Zone
Dubai, United Arab Emirates
Facsimile No.: x000-0-000-0000
With a copy to: Hadef Al Dhahiri & Associates
00xx Xxxxx, Xxxxx World Trade Centre
Sheikh Xxxxx Xxxx
X.X. Xxx 00000
Xxxxx, Xxxxxx Xxxx Xxxxxxxx
Facsimile No.: x000-0-000-0000
Attention: Xxxxx Xxxxx/Xxxx Lunjevich
SECTION 11.04. REMEDIES NOT EXCLUSIVE. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy will be cumulative and will be in addition to
every remedy given under this Agreement or now or subsequently existing, at law
or in equity, by statute or otherwise. The election of any one or more remedies
by Buyer or Seller will not constitute a waiver of the right to pursue other
available remedies.
SECTION 11.05. COUNTERPARTS/FACSIMILE SIGNATURES. This Agreement may be
executed in two (2) or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same document.
The parties agree that for purposes of negotiating and finalizing this
Agreement, any signed documentation, including this Agreement and any subsequent
amendments, transmitted by facsimile machine shall be treated in all manners and
in all respects as an original document and shall have the same binding legal
effect as an original contract. The signature of any party shall be considered
for these purposes an original signature. At the request of any party, any
facsimile document shall be re-executed by all parties in an original form.
SECTION 11.06. CAPTIONS AND SECTION HEADINGS. Captions and section headings
are for convenience only, are not a part of this Agreement and may not be used
in construing it.
27
SECTION 11.07. WAIVERS. Any failure by any of the parties to comply with
any of the obligations, agreements or conditions set forth in this Agreement may
be waived by the other party or parties, but any such waiver will not be deemed
a waiver of any other obligation, agreement or condition contained herein.
SECTION 11.08. AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS. Each of the
parties agrees to cooperate in the effectuation of the transactions contemplated
by this Agreement and to execute any and all additional documents and to take
such additional action as is reasonably necessary or appropriate for such
purposes. This Agreement may be amended, or any provision of this Agreement may
be waived upon the approval, in a writing, executed by Buyer and Seller. No
course of dealing between the parties hereto shall be deemed effective to
modify, amend or discharge any part of this Agreement or any rights or
obligations of any party or such holder under or by reason of this Agreement.
SECTION 11.09. ENTIRE AGREEMENT. This Agreement, including any certificate,
schedule, agreement exhibit or other document delivered pursuant to its terms,
constitutes the entire agreement between the parties. There are no verbal
agreements, representations, warranties, undertakings or agreements between the
parties, and this Agreement may not be amended or modified in any respect,
except by a written instrument signed by the parties to this Agreement.
SECTION 11.10. GOVERNING LAWS. This Agreement is to be governed by and
construed in accordance with the internal laws of the State of Indiana, without
regard to the conflicts of law principles of any jurisdiction to the contrary.
For actions arising in connection with this Agreement, the proper venue shall be
in a federal or state court in Indianapolis, Indiana, and the parties agree to
submit to the exclusive jurisdiction of such court.
SECTION 11.11. INTERPRETIVE RULES. For purposes of this Agreement, except
as otherwise expressly provided herein or unless the context otherwise requires:
(a) defined terms include the plural as well as the singular and the use of any
gender shall be deemed to include the other gender; (b) references to
"Articles," "Sections" and other subdivisions and to "Schedules" and "Exhibits"
without reference to a document, are to designated Articles, Sections and other
subdivisions of, and to Schedules and Exhibits to, this Agreement; (c) the use
of the term "including" means "including but not limited to"; and (d) the words
"herein," "hereof," "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular provision.
SECTION 11.12. PRESS RELEASE AND ANNOUNCEMENTS. None of the parties hereto
nor any of their respective representatives shall issue any press releases or
make any public announcement with respect to this Agreement or the transactions
contemplated hereby without the prior written consent of the other parties
hereto. Notwithstanding the foregoing, any such press release or public
announcement may be made if required by applicable Law or a securities exchange
rule; provided, however, that the party required to make such press release or
public announcement shall, to the extent possible, confer with the other parties
concerning the timing and content of such press release or public announcement
before the same is made.
28
SECTION 11.13. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable Law, but if any provision of this Agreement or the application of any
such provision to any Person or circumstance shall be held to be prohibited by,
illegal or unenforceable under applicable Law or rule in any respect by a court
of competent jurisdiction, such provision shall be ineffective only to the
extent of such prohibition, illegality or unenforceability, without invalidating
the remainder of such provision or the remaining provisions of this Agreement.
SECTION 11.14. NO STRICT CONSTRUCTION. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party hereto by virtue
of the authorship of any of the provisions of this Agreement.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
29
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the
Execution Date, to be effective as of January 1, 2006.
"BUYER"
BRIGHTPOINT HOLDINGS B.V.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Printed: XXXXXX X. XXXXX
Title: DIRECTOR
"SELLER"
/s/ Xxxx Xxxxxxxxx Du Plessis Xxxxxx
----------------------------------------
Xxxx Xxxxxxxxx Du Plessis Xxxxxx
S-1
LIST OF OMITTED SCHEDULES AND EXHIBITS
4.01. Organization and Standing; Authority
4.03. Subsidiaries
4.04. Transactions with Certain Persons
4.05. Financial Statements
4.06. Outstanding Debt and Related Matters
4.08. Compliance with Laws; No Default or Litigation
4.10. Absence of Undisclosed Liabilities
4.11(a). Real Property
4.11(b). Real Property
4.13. Intellectual Property
4.14(a). Contracts
4.14(b). Contracts
4.15. Permits
4.16(a). Labor Relations; Employees
4.16(b). Labor Relations; Employees
4.16(c). Labor Relations; Employees
4.17. Employee Benefit Plans
4.18. Environmental, Health and Safety Matters
4.19. Bank Accounts
4.20. Absence of Certain Business Practices
4.22. Directors and Officers
4.26. Litigation
4.27. Divested Entity Liabilities
5.01. Consents and Approvals
6.03. Consents and Approvals
6.04. Litigation
Exhibit A Issued and Outstanding Shares of the Company
Exhibit B Key Employees
