EXHIBIT 2.1
-----------
SHARE PURCHASE AGREEMENT
------------------------
In Madrid, on December 19, 1997.
APPEAR
------
(1) On the one part:
Xx. Xxxxxxxxx Xxxxx Xxxxxx, of British nationality, of legal age, married,
with domicile at Urbanizacion Xxxxx Xxxxx, and passport number 000000000,
in force.
(2) On the other part:
Xx. Xxxxx X. Xxxxxxx, of American nationality, of legal age, married, with
domicile at 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx, XXX, and Passport
Number P-000000000.
THEY INTERVENE
--------------
(1) Xx. Xxxxxxxxx Xxxxx Xxxxxx, (hereinafter, the "VENDOR"), in his own name
and on his own behalf.
(2) Xx. Xxxxx X. Xxxxxxx on behalf of ADVANCED DEPOSITION TECHNOLOGIES,
INC. (hereinafter, "ADT" or the "PURCHASER"), an American company,
incorporated under the Laws of Delaware, with registered address in 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx. He is empowered to execute this deed
by virtue of a special power of attorney granted thereto by Xx. Xxxx X.
Xxxxxx dated December 12, 1997 before the Notary Public of Massachusetts,
Xx. Xxxxxx X Xxxxxxxx, in English and Spanish, duly legalized by means of
an apostle pursuant to The Hague Convention of October 5, 1961.
RECITALS
--------
I. The Vendor is the absolute legal owner of 3,150 shares of ABSA, numbers 501
to 800, both inclusive, and numbers 11,001 to 13,850, both inclusive,
representing fifteen per cent (15%) of ABSA's share capital, with all
rights attached thereto and free of any liens, charges, third party rights
or restrictions to transfer (hereinafter, the "SHARES"), represented by
means of a multiple certificate ("titulo multiple").
II. The Shares are fully subscribed and paid-up as follows:
- Shares numbers 501 to 800 fully paid;
- Shares numbers 11,001 to 17,000 paid in a 25%, i.e., 250 Pesetas
each.
III. The Vendor acquired the Shares as follows:
a) Shares numbers 501 to 800, by subscription, by means of the Public
Deed of Incorporation of Xxxxxxxxx Xxxxxx, S.A. executed on November
26, 1979 before the Notary Public of Madrid Xx. Xxxxxxx Xxxxxxxx
Uberos, file number 2,813.
b) Shares numbers 11,001 to 17,000 by subscription, by means of the
Public Deed of share capital increase, executed on May 25, 1988,
before the Notary Public of Madrid Xx. Xxxxxx Xxxxxxxx Uberos, file
number 1,802.
VI. The two parties are interested in entering into this Share Purchase
Agreement, which shall be governed by the following:
CLAUSES
-------
1. PURPOSE
-------
1.1 The Vendor hereby transfers the Shares to the Purchaser, who purchases and
acquires, the Shares, with all the rights attached thereto and free from
any liens, charges, third party rights or restrictions on their
transferability.
1.2 The Vendor hereby transfers the Shares to the Purchaser by means of the
delivery of a multiple certificate representing the Shares.
2. PRICE
-----
2.1 The parties agree to a total purchase price of US$1,120,000 (the "PRICE").
2.2. The Purchaser pays to the Vendor in this act the total Price by means of
the transfer of title to 280,000 unregistered common shares of the
Purchaser with a market value of US$4 each (the "ADT SHARES") by means of
the delivery of a common stock certificate representing the ADT Shares. The
Vendor expressly acknowledges receipt in this act of the Price, this deed
serving as a receipt for full payment of the Price.
3. NON OBLIGATION TO REPAIR DAMAGES
--------------------------------
3.1 The Purchaser has carried out a legal and tax audit of ABSA in all aspects
and declares that it is aware of all the information disclosed during this
audit, in particular the lack of the opening license of the factory located
in Ciudad Industrial de Parla, a circumstance which it assumes for its own
account and risk. Consequently, the parties agree that no repair of damages
for defects, whether apparent or hidden, shall apply and the Purchaser
hereby expressly waives any right to any action it may be entitled to in
this respect, except as provided for in Clause 4 below.
2
3.2 The Vendor will not be liable for any past or future contingency or fact
affecting ABSA or the value of the Shares, except for tax contingencies, as
provided for in Clause 4 below.
4. TAX CONTINGENCIES
-----------------
4.1 If, as a result of a tax audit or any other act of the tax authorities,
which must not be triggered by ABSA or by the Purchaser directly or
indirectly in any case, ABSA is held liable for tax debts derived from
facts occurred in the tax years 1995, 1996 or within the period stating on
January 1, 1997 and ending on the date hereof the Vendor will reimburse ADT
or will pay to the tax authorities, a 15% of the amount assessed in
accordance with the procedure described below.
4.2 If ABSA receives any tax notice from which tax liabilities might arise, the
Vendor will notify the Purchaser within the shorter of the following two
periods: (i) eight business days or (ii) the first half of the term granted
by the Spanish Tax Authorities.
4.3 Until the matter is finally solved, the parties will cooperate, act
jointly, exchange all information available, and try to minimize the tax
liability of ABSA. The Vendor will be allowed to appoint, at his cost, an
independent advisor who will participate in the procedure along with the
one appointed by ABSA and/or the Purchaser, if any. At the option of the
Vendor, ABSA will use all appeals available in the administrative-judicial
and judicial procedures. In those procedures, the Vendor will provide, at
his own cost, any guaranties or bonds which might be necessary to suspend
enforcement up to 15% of the assessed debt.
The party which, against the express opinion of the other party, decides
not to consent the tax inspection and/or challenge the tax assessment made,
will be liable for any damages caused to the other party as a result of the
administrative judicial and judicial procedures initiated against his
opinion.
5. MISCELLANEOUS
-------------
5.1 The letter of intent executed between the parties on October 24,1997 shall
be understood as novated and substituted hereby, except with respect to the
confidentiality covenant contained therein.
5.2 No variation of this Share Purchase Deed shall be valid unless it is made
in writing and signed by or on behalf of each of the parties.
5.3 The failure to exercise or delay in exercising a right or remedy under this
Share Purchase Deed shall not constitute a waiver of the right or remedy or
a waiver of any other rights or remedies and no single or partial exercise
of any right or remedy under this Share Purchase Deed shall prevent any
further exercise of any other right or remedy.
3
5.4 The invalidity, illegality or unenforceability of any provision of this
Share Purchase Deed shall not affect or impair the continuation in force of
the remainder of this Share Purchase Deed. Furthermore, in lieu of any such
invalid, illegal or unenforceable term or provision, the parties intent is
that there shall be added as a part of this Share Purchase Deed a provision
as similar in terms to such invalid or unenforceable provision as may be
possible and be valid and enforceable.
5.5 For the purposes of this Share Purchase Deed, every day of the year except
Sundays and holidays in tile cities of Madrid or Boston shall be deemed
business days.
6. CONFIDENTIALITY
---------------
6.1 The parties agree to keep confidential the terms of this Share Purchase
Deed, as well as all undertakings or obligations assumed hereunder unless
required by any applicable law or regulation. If any applicable law or
regulation currently in force requires the publication or disclosure of any
information concerning this Share Purchase Deed, the party compelled to
make such publication or to disclose such information shall give prior
notice to the other party of the need to do so, and such party may not
object to it.
6.2 Notwithstanding the confidentiality obligation assumed by the parties in
the preceding paragraph, the parties may reveal to their managers and
employees those aspects of the present Share Purchase Deed that they deem
necessary for its fulfillment and the Purchaser may disclose it to any
potential assignee of its fights hereunder or to any potential purchaser of
the Shares or of any shares in the Company or in the Subsidiary.
6.3 None of the parties will make any press release or other public disclosures
related to this Share Purchase Deed or other transactions contemplated
hereby, without the written consent of the other party, except when the
parties are under an obligation to release specific information pursuant to
existing laws or regulations. In particular, the Vendor acknowledges that
the Purchaser, as a publicly traded company, may be required to make press
releases and/or other public disclosures regarding this Share Purchase Deed
and any transaction contemplated herein.
7. EXPENSES AND TAXES
------------------
7.1 Each party will bear 50% of the taxes, costs and expenses arising from the
execution of this Share Purchase Deed.
7.2 Taxes shall be borne by the parties in accordance with applicable law.
8. NOTICES
-------
8.1 All notices between the parties relating to or arising from this Share
Purchase Deed shall be made by mail or by facsimile unless otherwise
provided for herein. If made by
4
facsimile, the notices shall be deemed valid, and binding, provided that
the facsimiles are signed by an authorized officer of the counterpart.
8.2 The parties have designated the following addresses notices:
The Purchaser
Xxxxx Xxxxxxxx Industrial Park,
Xxxxxxx, Xxxxxxxxxxxxx, 00000 XXX
Tel. 000-000 0000
Fax. 000-000 0000
Attn. Xx. Xxxxx X. Xxxxxxx, President
The Vendor
DNA EXPORT, S.L.
X/Xxxxxxxxxx 00
00000 Xxxxxx
Tel. 00-0-000-0000
Fax. 00-0-000-0000
Attn. Xx. Xxxxxxxxx Xxxxxx
8.3 Any notice sent to the above referenced addresses will be deemed to be
received by the addressee, except if prior to the sending of such notice
the addressee had notified the sender a change of address or telefax
numbers.
9. GOVERNING LAW AND ARBITRATION
-----------------------------
9.1 This Share Purchase Deed shall be governed by and construed in accordance
with the laws of the Kingdom of Spain.
9.2 Any disputes arising under this Share Purchase Deed shall be definitively
resolved according to the Rules of Conciliation and Arbitration of the
International Chamber of Commerce by three (3) arbitrators named in
accordance with the said rules. Where no arbitrator is named in the request
for arbitration or within thirty (30) days from receipt of the request, the
aforesaid arbitrator shall be appointed by the International Chamber of
Commerce. The chairman of the Arbitration Tribunal shall be appointed by
the two co-arbitrators and, where thirty (30) days after the appointment of
the second arbitrator the co-arbitrators have not reached an agreement, the
chairman of the Arbitration Tribunal shall be appointed by the
International Chamber of Commerce. The arbitration shall be an arbitration
at law, the arbitration proceedings shall be conducted in the city of
Madrid, and the language of the arbitration proceeding shall be English.
The parties undertake to comply with the arbitration award.
5
As an expression of their consent, the parties, either directly or through their
authorized representatives, execute this Share Purchase Deed and initialize its
pages and annexes at the place and on the date first above written.
ADVANCED DEPOSITION Alexander Xxxxx Xxxxxx
TECHNOLOGIES, INC.
/s/ Xxxxx X. Xxxxxxx /s/ Alexander Xxxxx Xxxxxx
__________________________ _____________________________
Xxxxx X. Xxxxxxx Xxxxxxxxx Xxxxx Xxxxxx
6