EX-99.2
4
v138709_ex99-2.htm
Dated
January 30th,
2009
XXXXXXXX
XXXXXX
And
XXXXXXX
XXXXXX
And
XXXXXXXX
XXXXXX
And
XXXX
XXXXX
And
XXXXXXXX
XXXXXXXX
And
MEAS
EUROPE
SHARE
PURCHASE AGREEMENT
SHARE
PURCHASE AGREEMENT
BETWEEN
XXXXXXXX XXXXXX, resident at 0
Xxxxxx xx Xxxxx Xxxxxxxx – 00000 XXX XXXXXXX – France,
AND
XXXXXXX XXXXXX, resident at 0
Xxxxxx xx Xxxxx Xxxxxxxx – 00000 XXX XXXXXXX – France,
AND
XXXXXXXX XXXXXX, resident at 000-000
xxxxxx xx Xxxxxxxxxxxxx – 94270 LE KREMLIN-BICETRE – France,
AND
XXXX XXXXX, resident at 00 xxx xx
Xxxx Xxxxxxxx – 00000 XXXXX – Xxxxxx
AND
XXXXXXXX XXXXXXXX, resident at
0 xxxxxx xx Xxxxxx – 00000 XXXXXXXX XX XXXXXXXXXX – France,
(individually
referred to as a “Seller” and collectively as
the “Sellers”),
AND
MEAS EUROPE, a French société par actions
simplifiée registered in France under number 311 711 808 RCS Toulouse, and whose
registered office is located at 000 Xxxxxx xx Xxxxxxx Xxxxxxxxxx, XX 0000, 00000
Xxxxxxxx Xxxxx, Xxxxxx, duly represented by its Président, Jean-François Allier
(the “Buyer”),
(The
Sellers and the Buyer are referred to individually as a “Party” and collectively as the
“Parties”).
2
INTRODUCTION
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(A)
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Xxxxxxxx
Xxxxxx, Xxxx Xxxxx and Xxxxxxxx Xxxxxxxx (the “GS Sensors Sellers”)
together own 100% of the entire issued share capital of GS Sensors (the
”GS Sensors
Shares”). Their respective shareholdings are set out in part 1 of
Schedule 1.
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(B)
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Xxxxxxxx
Xxxxxx, Xxxxxxxx Xxxxxx, Xxxx Xxxxx and Xxxxxxxx Xxxxxxxx (the “ALS Sellers“) together
own 25% of the entire issued share capital of ALS (the ”ALS Shares“). Their
respective shareholdings are set out in part 2 of Schedule
1.
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(C)
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Xxxxxxxx
Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxxx and Xxxx Xxxxx (the ”FGP Sellers”) together
own 80% of the entire issued share capital of FGP (the ”FGP Shares”). Their
respective shareholdings are set out in part 3 of Schedule
1.
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(D)
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GS
Sensors owns 75% of the entire issued share capital of ALS and 20% of the
entire issued share capital of FGP.
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(E)
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The
GS Sensors Sellers, the ALS Sellers and the FGP Sellers (together the
”Sellers”) wish to
sell and the Buyer wishes to buy the GS Sensors Shares, the ALS Shares and
the FGP Shares respectively (together the ”Shares”) on the Closing
subject to and in accordance with the terms and conditions of this
Agreement.
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NOW
THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS
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1.1
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In
addition to the terms elsewhere defined in this Agreement, the following
expressions shall have the following meanings in this Agreement unless the
context otherwise requires:
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“Accounts” means the
balance sheet, the profit and loss account and annexes of the Target Group
for the year ending on the Balance Sheet Date (copies of which are
attached to the Disclosure Letter);
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“Affiliate” means, with
respect to any body corporate, any other body corporate, directly or
indirectly, controlling, controlled by or under common control with, such
body corporate, with “control” for such purpose meaning control as defined
under Article L.233-3 of the French Code de Commerce or the
control resulting from the possession, directly or indirectly, of the
power to either (a) exercise a majority of the voting rights exercisable
at general meetings of a body corporate, or (b) appoint or remove
directors having a majority of the voting rights exercisable at meetings
of the board of directors of a body
corporate;
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"Agreed Form" means in
relation to a document or agreement a form agreed between the relevant
Parties or parties to that document or agreement, initialled on each of
their behalves;
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“ALS” means a French
société par actions
simplifiée registered in France under number 000 000 000 RCS Dreux,
and whose registered office is located at 00, xxx Xxxxxxx Xxxxxx 00000
Xxxxxxxxxxx, Xxxxxx;
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“ALS Property” means the
premises and land used by ALS;
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“ALS Sellers” shall have
the meaning given to it in paragraph B of the
Introduction;
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“ALS Shares” shall have
the meaning given to it in paragraph B of the
Introduction;
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“Agreement” means this
share purchase agreement;
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3
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“Assets” means all of the
tangible and intangible assets of the Target Group, of whatever
description, whether or not disclosed in the Accounts including, but not
limited to, all additions, accessions and substitutions made for full
consideration in the Ordinary Course of Business prior to the Closing
Date;
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“Balance Sheet Date”
means 31 December 2008;
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“Business” means the design,
manufacture and supply of Sensors by the Target Group;
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“Business Day” means any
day (other than Saturday and Sunday) upon
which banks are open for business in Paris and New
York;
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“Closing” means the
closing of the purchase of the Shares in accordance with Clause 5;
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“Closing Date” means 30 January
2009;
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“Closing Payment” means the sum
of €5.6m (five million six hundred thousand euros) less Outstanding Net Debt,
the DF Note and the NetSensors Note;
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“Confidentiality
Agreement” means the confidentiality agreement concluded between
the Parties on 15 May 2008;
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“DF Note” means the
promissory note held by Don Fujihira in the amount of €0.4m (four hundred
thousand euros);
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“DF Share Purchase Agreement”
means the share purchase agreement in the Agreed Form entered into
between Don Fujihira and GS Sensors on or before
Closing;
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“Disclosure Letter” means
the schedules of information disclosed by the Sellers against the
Warranties;
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“Dordelec” means a French
société à responsabilité limitée registered in France under number
328052618 RCS Bergerac, and whose registered office is located Xxxxx xxx
Xxxxxxx, 00000 Xxxx Xxx Xxx;
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“Earn-Out Payment” has
the meaning given to that term in Clause
3.2;
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“Earn-Out Payment Date”
means the second anniversary of the Closing
Date;
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“Earn-Out Sales” means
the amount of the Net Sales in the consecutive period of 12 months ending
on 31 January 2010;
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“Entity” means a
corporate, partnership, Limited Liability Company, limited liability
partnership, joint stock company or any other form of legal association in
any jurisdiction whatsoever;
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“Existing FGP Lease”
means the existing lease between FGP and SCI ALOAH entered into on 1st
January 2007 relating to the FGP
Property;
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“FGP” means FGP
Instrumentation, a French société anonyme
registered in France under number 304 603 145 RCS Versailles, and
whose registered office is located at 00 xxx xxx Xxxxx – 00000 – XXX
XXXXXX XXXX XXXX, Xxxxxx;
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“FGP Property” means the
premises and land used by FGP;
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“FGP Sellers” shall have
the meaning given to it in paragraph C of the
Introduction.
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“FGP Sensors Scandinavia”
means a Swedish AB company registered in Sweden under No. 556680-1535
(Stockholm) and whose registered office is located at Xxxxxxx 00000
Xxxxxx;
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“FGP Shares” shall have
the meaning given to it in paragraph C of the
Introduction.
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4
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“GS Sensors” means a
French société par actions simplifiée registered in France under number
414 200 972 RCS Versailles, and whose registered office is located at 00,
xxx xxx Xxxxx, 00000 XXX XXXXXX XXXX XXXX, Xxxxxx, duly represented by its
Président, Monsieur Xxxx Xxxxx;
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“GS Sensors Sellers”
shall have the meaning given to it in paragraph A of the
Introduction.
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“GS Sensors Shares” shall
have the meaning given to it in paragraph A of the
Introduction.
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“Indemnified Party” has
the meaning set out in Clause 6.1;
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"Important Agreements”
means all agreements, contracts, group or series of contracts taken
together, with a customer or a supplier, undertakings or arrangements
(whether written or oral) into which a member of the Target Group has
entered and which may fall within one or more of the following
categories:
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(a)
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requiring
yearly payment by or to a member of the Target Group in excess of €50,000
(excluding VAT);
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(b)
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entered
into with a customer of a member of the Target Group representing more
than 5 per cent of the Target Group’s annual
turnover;
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(c)
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under
whose terms a member of the Target Group is bound to refrain from carrying
out or to restrict certain activities, or to refrain from competing or
under which a member of the Target Group has granted exclusive rights to
any third party;
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(d)
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which
restricts the ability of a member of the Target Group to carry out its
business in the Ordinary Course of
Business;
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(e)
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which
have an indefinite term or a definite term of more than one year with the
exclusion of financial lease agreements, insurance agreements, employment
agreements and agreements which a member of the Target Group may at any
time terminate in full with a period of notice of less than 3 (three)
months;
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(f)
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which
have not been concluded in the Ordinary Course of Business and with a
total value of more than €5,000 (excluding VAT) on an annual basis all of
which are listed in the Disclosure
Letter;
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(g)
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which
is or may be considered to be a commercial agency
agreement;
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“Intellectual Property”
means all patents (and applications therefor), envelopes Soleau, utility
models (and applications therefor), trade and service marks, rights in
designs, copyrights, moral rights, topography rights, rights in databases,
trade secrets and Know How and other confidential information and all
other similar proprietary rights which may subsist in any part of the
world (whether registered or not) including the results of research and
development programmes and Know How arising there
from;
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“Know How” means
confidential industrial and commercial information and techniques in any
form (including paper, electronically stored data, magnetic media, film
and microfilm), including without limitation mechanical systems, drawings,
formulae, test results, reports, project reports and testing procedures,
instruction and training manuals, tables of operating conditions, market
forecasts, lists and particulars of customers and
suppliers;
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“Liabilities” means any damages,
claims, losses, charges, actions, suits, proceedings, deficiencies, taxes,
interest, penalties, fines, settlements, judgements and costs and expenses
(including, without limitation, legal fees and expenses, removal costs,
remediation costs, closure and post-closure costs, fines, penalties and expenses
of investigation and ongoing monitoring), present or future, known or unknown,
fixed or contingent, and “Liability” means any one of
them;
5
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“Loss” means all losses,
costs, damages, expenses, fines and
penalties;
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"MEAS Group” means
Measurement Specialties, Inc and each of its Affiliates but excluding the
Target Group;
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"Net Sales" means the
amount of the legally reported sales to third parties made by (i) the
Target Group in respect of the Business (excluding sales between members
of the Target Group and between members of the Target Group and members of
the MEAS Group), (ii) any salesmen of the MEAS Group in respect of the
Business and (iii) any member of the MEAS Group to Target Group Customers
in all cases excluding VAT and less returns for each relevant
period;
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“NetSensors Asset Purchase
Agreement” means the agreement relating to the sale and purchase of
NetSensors’ business and assets entered into in the Agreed Form between
NetSensors (UK) and ALS on or prior to the Closing
Date;
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“NetSensors Asset Purchase
Price” means the maximum amount of €2m (two million
euros);
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“NetSensors Note” means
the promissory note held by NetSensors (UK) in the amount of €1.6m
(one-million six-hundred thousand
euros);
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“NetSensors (UK)” means
NetSensors Limited, a company incorporated in England and Wales with
company number 04435344 and whose registered office is at 0xx Xxxxx
Xxxxxxx Xxxxx, 00 Xxxx Xxxx, Xxxxxx XX0X
0XX;
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“New FGP Lease” means the
lease (bail
précaire) in the Agreed Form to be entered into between FGP and SCI
ALOAH on the Closing Date;
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"Ordinary Course of
Business" means any practice, policy, act, agreement, measure or
decision, which is consistent with the normal conduct of the Business in
accordance (where applicable) with past
practices;
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“Outstanding Net Debt”
means the amount of all long and short term financial indebtedness
(whether or not interest bearing) owing to any financial institution,
governmental or other authority or any other third party including, but
not limited to, all amounts owing to revolving credit lines and bank
overdrafts of the Target Group less any cash and positive cash bank
balances of the Target Group as at January 31st,
2009 and less the Pension
Contribution;
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“Patent(s) Transfer
Agreement” means the patent transfer agreement entered into in the
Agreed Form between on the one hand ACFG SNC and Xxxxxxx Xxxxxx as sellers
and on the other hand FGP as buyer in respect of the sale and purchase of
patent numbers 04 04 766 and 06 03
564;
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“Pension Contribution”
means the amount of €50,000 paid by the Target Group to cover
employment retirement benefits;
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“Permits” means permits,
exemptions, approvals or authorisations required by or issued pursuant to
any applicable rules under the laws of France or any other jurisdiction
where the Target Group conducts
business;
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“Properties” means the
ALS Property and the FGP Property;
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“Purchase Price” means
the aggregate amount of the Closing Payment and the Earn-Out
Payment;
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6
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“Qualicem” means a French
société à responsabilité limitée registered in France under No.
408 782 365 RCS Versailles and whose registered office is
located 00 xxx xxx Xxxxx, 00000- XXX XXXXXX XXXX Xxxx, Xxxxxx
;
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“Restricted Period” means the
period starting on the Closing Date and ending on the second anniversary of the
Closing Date;
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“Schedules” means the
schedules annexed to this
Agreement;
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“Security” includes for the
purpose of this Agreement any “sûreté” “réelle” or “personnelle”, “droit réel accessoire”,
“droit de rétention”,
“réserve de propriété”,
“délégation”, “subrogation”, “fiducie”, “cession fiduciaire” “en propriété” or “à titre de garantie” or any “mesure conservatoire” or
“voie d’exécution”, or
their equivalent in any jurisdiction other than France as well as agreement,
option, pre-emption right, undertaking, offer or other real or personal right
(“droit réel ou
personnel”) or other obligation which has the purpose or effect of
restricting in any manner the ownership or the transferability of the relevant
asset or right; provided, however, that liens or encumbrances arising in the
Ordinary Course of Business in connection with transportation or delivery of
goods shall not be considered to be “Security” for purposes of this
Agreement;
"Sellers” means the GS Sensors
Sellers, the ALS Sellers and the FGP Sellers;
"Sellers’ Nominated Bank
Account" means the account details of which shall be communicated by the
Sellers to the Buyer at least 5 Business Days prior to the Closing Date;
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“Senior Employees” means
an employee of any member of the Target Group with a gross annual salary
in excess of €35,000;
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“Sensors” means all forms of
pressure, force and vibration sensing elements, transducers, transmitters and
modules, including, but not limited to, piezoresistive and piezoelectric
technologies as designed and manufactured by the Target Group as of the Closing
Date as well as any such products that may be designed and manufactured by the
Target Group after the Closing Date, with the agreement of both the Sellers and
the Buyer, using the Target Group's Know How;
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“SG Employment Agreement”
means the employment agreement in the Agreed Form to be entered into on
Closing between Xxxx Xxxxx and MEAS
France;
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“Shares” means the GS
Shares, the ALS Shares and the FGP
Shares;
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“SM Employment Agreement”
means the employment agreement in the Agreed Form to be entered into on
Closing between Xxxxxxxx Xxxxxxxx and MEAS
France;
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"Target Group" means
collectively GS Sensors, ALS, FGP and the US Subsidiary details of which
are set out in Schedule 2 to this
Agreement;
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“Target Group Customers”
means a customer of the Target Group as at the Closing Date who is
not also a customer of the MEAS Group as at Closing
Date;
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“Taxation” or “Taxes” means all forms of
taxation, duties, impositions, levies, withholding taxes, contributions and
charges of whatsoever nature payable in conformity with the legislation of all
countries concerned including, without limitation, income tax, “parafiscalité”,
corporation tax, capital gains tax, value added tax, sales tax, business tax,
customs laws and other import and export duties, excise duties, stamp duty,
social security payments or other similar contributions and generally all taxes,
duties, withholdings whatsoever on or in relation to income, profits, gains,
sales, in connection with any of the foregoing for the benefit of the State or
any other body or entity whether State-controlled or private, or local authority
or government agency and all penalties, costs and interest relating
thereto;
7
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“Tax Return” means any
return, declaration, report, claim for refund, or information return or
statement relating to Taxes, including any schedule or attachment thereto,
and including any amendment
thereof;
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“Total Earn-Out” has the
meaning given to that term in Clause
3.2;
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“US Subsidiary” means FGP Sensors, Inc.
(USA);
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“Warranties” means the
warranties and representations contained in Clause 4;
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Any
reference to the laws of France shall be deemed, when it is to be
interpreted in the context of a law or territory other than French, to
include a reference to its equivalent in the relevant law or
territory.
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1.2
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Any
statement, representation or warranty which is qualified by the expression
“to the best of the knowledge, information and belief of the Sellers” or
“so far as the Sellers are aware” or any similar expression shall refer to
facts and information which a reasonably prudent manager and shareholder
would be aware of or would be expected to be aware of in the execution of
his duties.
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1.3
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The
schedules (the “Schedules”) form part of
this Agreement and shall have the same force and effect as if expressly
set out in the body of this Agreement and any reference to this Agreement
shall include the Schedules.
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2
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Sale
and Purchase of the Shares
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2.1
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Subject
to the fulfilment of the obligations set out in Clauses 5.2 and
5.3:
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2.1.1 the
GS Sensors Sellers shall sell the GS Sensors Shares;
2.1.2 the
ALS Sellers shall sell the ALS Shares; and
2.1.3 the
FGP Sellers shall sell the FGP Shares,
and the
Buyer in reliance upon, inter alia, the Warranties shall purchase the GS Sensors
Shares, the ALS Shares and the FGP Shares free from all Security and with the
benefits of all rights attaching to them as at the Closing Date.
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2.2
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Title
and risk to the Shares shall pass to the Buyer at the Closing
Date.
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2.3
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For
the avoidance of doubt, the assets that are owned personally by the
Sellers as listed in Schedule 3 shall be excluded from the sale and
purchase of Shares contemplated by this
Agreement.
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3.1
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In
consideration for the sale of the Shares by the Sellers to the Buyer and
for the obligations of the Sellers and the Sellers contained under this
Agreement, the Buyer shall pay to the
Sellers:
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3.1.1
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the
Closing Payment which shall be satisfied in cash on, but subject to,
Closing; and
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3.1.2
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the
Earn-Out Payment as calculated in accordance with Clause 3.2 which shall
be satisfied in cash on the Earn-Out Payment
Date.
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8
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3.2
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The
amount of the Earn-Out Payment shall be based on the level of the Total
Earn-Out which in turn is based upon the level of the Earn-Out Sales. The
Total Earn-Out shall start to accrue if the Earn-Out Sales exceed
€5,500,000 (five million five hundred thousand euros) and shall increase
on a pro rata basis to 100% if the Earn-Out Sales reach €6,200,000 (six
million two hundred thousand euros). For the avoidance of doubt, there
shall be no Total Earn-Out Payment based on the Earn-Out Sales if the
Earn-Out Sales are equal to or less than €5,500,000 (five million five
hundred thousand euros). The maximum Total Earn-Out based on the Earn-Out
Sales shall not exceed €1,400,000 (one million four hundred thousand
euros) if the Earn-Out Sales are greater than €6,200,000 (six million two
hundred thousand euros). The Earn-Out Payment shall be equal to
the actual Total Earn-Out times 900.000 divided by
1.400.000.
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3.3
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The
Buyer shall not deliberately take any action, the principal purpose of
which is to distort adversely the amount of the Earn-Out
Payment.
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3.4
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Within
5 Business Days of the agreement by the Parties of the Outstanding Net
Debt:
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a)
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if
the Outstanding Net Debt exceeds €160,000, the Buyer shall pay to the
Sellers in cash the full amount of any such excess;
or
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b)
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if
the Outstanding Net Debt is less than €160,000, the Sellers shall pay to
the Buyer in cash the full amount of any such
shortfall
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3.5
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Any
cash payment is to be made by telegraphic transfer to the Sellers’
Nominated Bank Account, which shall constitute a full and valid discharge
to the Buyer for such cash payment.
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The
Sellers jointly and severally represent and warrant to the Buyer that each of
the Warranties is true and accurate on the Closing Date except where another
date is expressly provided.
There is
to the best of the knowledge of the Sellers no fact or matter which has not been
disclosed in writing to the Buyer or to its professional advisors which should
on a good faith basis be disclosed to an intending buyer of the Shares and, to
the best of the knowledge of the Sellers, there is no information which has been
disclosed in writing by the Sellers to the Buyer or its professional advisers
prior to the Closing Date which contained at the time of disclosure material
inaccuracies which have not subsequently been corrected,
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4.2
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Warranties
in relation to the Sellers
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4.2.1
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Each
of the Sellers has the legal right and full power and authority to enter
into and perform this Agreement; this Agreement will constitute valid and
binding obligations of the Sellers.
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4.2.2
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The
execution and delivery of and the performance by the Sellers of their
obligations under this Agreement will not and is not likely to (i) result
in the creation of any encumbrances and restrictions under any agreement,
licence or other instruments or, (ii) result in a breach of any order,
judgement or decree of any court, governmental agency or regulatory body
to which the Sellers are a party or by which the Sellers are
bound.
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9
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4.3
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Warranties
in relation to the Target Group
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4.3.1
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Constitution,
existence, authorities, capacity and conformity of the Target
Group
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The
information contained in parts 1, 2, 3 and 4 of Schedule 2 and Schedule 3 are
true, complete and accurate as at the Closing Date.
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The
copies of the articles of association and other constitutional documents
of each member of the Target Group attached to the Disclosure Letter are
true, complete and accurate.
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Each
member of the Target Group is incorporated and registered in accordance with the
laws of its country of incorporation and is duly organised and validly existing
under such laws with the full power and authority to enable it to own its assets
and properties and carry on the Business as currently conducted.
The
extract K-Bis for each French member of the Target Group attached to the
Disclosure Letter contains true and accurate information and is
up-to-date.
Each
member of the Target Group, (i) is able to meet its debts as they fall due and
is not in default under any debt financing or declared to be in redressement judiciaire, liquidation
judiciaire or any equivalent proceedings in any jurisdiction other than
France, and no ad hoc administrator has been appointed; (ii) has not been
granted a suspension
provisoire des poursuites, nor is it the subject of règlement amiable or any
equivalent relief in any jurisdiction other than France.
The
accounting books, statutory registers, books and other corporate records of each
member of the Target Group required by applicable laws and regulations are (i)
up-to-date, (ii) have been kept by the relevant member of the Target Group, are
in its possession and have been properly maintained, (iii) reflect all corporate
action taken by the relevant member of the Target Group, and (iv) contain
information which is true and accurate and which has been recorded in accordance
with applicable laws and regulations.
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4.3.2
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Warranties
relating to the Shares
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4.3.2.1
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The
GS Sensors Shares have been duly issued and fully paid up and may be
freely transferred and are the only shares issued by GS Sensors. The
rights attached to each of the GS Sensors Shares are identical and free of
any Security. The share capital of GS Sensors is not subject to any
redemption nor repayment.
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4.3.2.2
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The
ALS Shares have been duly issued and fully paid up and may be freely
transferred and are the only shares issued by ALS. The rights attached to
each of the ALS Shares are identical and free of any Security. The share
capital of ALS is not subject to any redemption nor
repayment.
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4.3.2.3
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The
FGP Shares have been duly issued and fully paid up and may be freely
transferred and are the only shares issued by FGP. The rights attached to
each of the FGP Shares are identical and free of any Security. The share
capital of FGP is not subject to any redemption nor
repayment.
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10
No
contract or undertaking is in force regarding the issue or the allocation of
Shares or granting to any person the right to purchase or to pre-empt all or
part of the Shares. At the Closing Date, the Target Group has not issued, nor is
bound to issue, securities giving rights, at any moment or on a given date, to
the allocation of Shares.
The
Sellers are, at the Closing, the sole and full holders of the Shares. No
Security on the Shares is in existence and no person has made any claims to the
Shares or with regard to any Security in relation to the Shares. No Shares of
the Target Group are legally or beneficially owned by any person other than the
Sellers. The Sellers have full power and capacity to transfer full title of the
Shares free of any Securities on the Closing Date.
|
|
4.3.3
|
Shareholdings
and branches
|
Except
for the US Subsidiary, Qualicem and Disynet GmBH, no member of the
Target Group (i) holds shares in any other company, partnership, GIE, GEIE or
other entity or business, French or foreign, nor is it member of such entities
(ii) has a branch office, representative office or permanent establishment
outside their jurisdiction of incorporation; and (iii) has within the last three
years entered into any agreement or negotiation with a view to the acquisition
of other shareholdings in other companies or entities, or with a view to setting
up companies or new entities.
GS
Sensors holds:
|
|
4.3.3.1.1
|
75%
of the entire issued share capital and voting rights of ALS free from
Security; and
|
|
|
4.3.3.1.2
|
20%
of the entire issued share capital and voting rights of FGP free from
Security.
|
On the
Closing Date, GS Sensors shall also hold:
|
|
4.3.3.1.3
|
87%
of the entire issued share capital and voting rights of the US Subsidiary
free from Security;
|
FGP
holds15% of the entire issued share capital and voting rights of Disynet GmBH,
which is subject to a buy-back right in favour of the other DisyNet
shareholders.
FGP holds
13% of the entire issued share capital and voting rights of the US Subsidiary
and 30% of the entire issued share capital and voting rights of Qualicem in each
case free from Security;
|
|
4.3.4
|
Warranty
relating to the activities of the Target
Group
|
Each
member of the Target Group has power and capacity to carry on its activities in
all material respects. All permits, licences, authorisations, certificates and
consents necessary for each member of the Target Group to carry on the Business
and to sell its services have been obtained and are not subject to any
suspension, revocation, amendment or non-renewal (including as a result of the
change of control of any member of the Target Group).
No member
of the Target Group has made any illegal payment to any person in order to
obtain sales or purchases or secure the continuation of the
Business.
11
|
|
4.3.5
|
Warranties
relating to the Debts, Cash and Accounts of the Target
Group
|
The
Accounts have been drawn up in accordance with the rules of the French Plan Comptable Général, or
the applicable obligatory standards in the country of incorporation, as
relevant, so that they are sincères et réguliers and give a true and
fair view (donnent une image
fidèle) of the assets and liabilities, the financial situation and the
results of each member of the Target Group. The Accounts have been drawn up
using the same principles and methods as those used during the last three
financial years.
The
financial position and results shown by the Accounts have not to any material
extent been affected by any non recurrent, extraordinary or exceptional items or
by inconsistencies of accounting practice or by any other fact rendering such
financial position and results unusual or misleading in any material
respect.
FGP’s 15%
share of the income of Disynet has never been included in FGP’s
accounts.
During
the year preceding and ending on the Closing Date, the working capital of the
Target Group has been managed consistently with past practise.
|
|
4.3.6
|
Sufficiency
of Assets
|
The
Assets comprise all the assets necessary to enable the relevant member of the
Target Group to carry on its business fully and effectively in the Ordinary
Course of Business.
|
|
4.3.7
|
Warranties
in relation to Environment and
Permits
|
Each
member of the Target Group is in compliance with the applicable environmental
legislation and with the applicable provisions of the French environmental code
and equivalent legislation in its country of incorporation and there exists no
environmental inspection, audit, study, review, test or analysis relating to the
Properties.
The
Target Group does not operate an establishment that is subject to the
legislation on classified installations.
The
Target Group is not party to any contract, such as a partnership or leasing
contract, relating to the transfer of the whole or part of its fonds de
commerce.
|
|
4.3.9
|
Intellectual
property
|
Details
(description and, if applicable, numbers and dates of filing, registration and
renewal) relating to trademarks included in the Intellectual Property that are
registered or for
which registration is pending, and owned by the Target Group are shown in the
Disclosure Letter.
All
Intellectual Property (whether registered or not) and all pending applications
therefor which have been, are, or are being used in the business of the Target
Group are (a) fully owned (pleine propriété) by the
relevant member of the Target Group or lawfully used with the consent of the
owner under a licence; (b) valid; (c) not being infringed or challenged by any
third party; and (d) if fully owned (pleine propriété) by the
relevant member of the Target Group, not subject to any Security or any licence
in favour of another. Each member of the Target Group has taken all commercially
reasonable steps to maintain and protect such Intellectual
Property.
12
The
processes used by the Target Group do not use, embody or infringe any rights or
interests of third parties in Intellectual Property (other than those belonging
to or licensed to the Target Group and referred to in the Disclosure Letter) and
no claims of infringement of any such rights or interests have been made by any
third party.
The
licenses entered into by the Target Group relating to Intellectual Property are
in full force and effect; the obligations of all parties to such licenses have
been complied with in accordance with their terms; no disputes have arisen, nor
has any member of the Target Group received a notification or complaint from a
third party in relation to such licenses.
There is
no misuse of the Target Group’s Know-How or processes by the Target Group and
the Target Group has not made any disclosure of the Target Group’s Know How or
processes to any person other than the Buyer.
|
|
(v)
|
No assertion
of moral rights
|
No moral
rights have been asserted which would affect the use of any of the Intellectual
Property in the Business.
Full
details of patentable inventions owned by any member of the Target Group or by
employees or shareholders or former shareholders of any member of the Target
Group (whether registered or not) used in the Business are set out in the
Disclosure Letter. Patent n° 05 02 082 has
not been used in the Business for the last five (5) years and is not required or
necessary for the future operation of the Business.
|
|
4.3.10
|
Warranties
in relation to Liabilities
|
|
|
Except
as disclosed in the Disclosure Letter, there will be no Liabilities
(including contingent Liabilities) of the Target Group outstanding on the
Closing Date other than those reflected in the Accounts or those incurred
in the Ordinary Course of Business since the Balance Sheet
Date.
|
13
|
|
4.3.11
|
Warranties
in relation to the management of the Target Group - Proxies, Delegation of
powers and Signatures
|
There are
no proxies, powers of attorney, delegations of power or signature granted by
those able to represent any member of the Target Group, or sign in its
respective name, in force, as at the Closing Date other than as set out in the
Disclosure Letter.
|
|
4.3.12
|
Contracts,
agreements and arrangements of the Target
Group
|
The
Disclosure Letter lists all Important Agreements. All Important Agreements are
valid and binding upon their parties. All Important Agreements have been entered
into in the Ordinary Course of Business.
Except as
disclosed in the Disclosure Letter, such Important Agreements have been
performed in accordance with their terms and conditions (save for minor and
unrepeated breaches); the sale of the Shares will not prevent the performance of
the Important Agreements, lead to their amendment or termination, require the
completion of one or more formalities or to obtain an agreement or consent to
allow the Important Agreements to remain in force on the same basis; all such
Important Agreements have been entered into on arm’s length terms; and none of
the co-contractors to such Important Agreements may be able to claim economic
dependence on the Target Group if that Important Agreement were to be terminated
for any reason.
|
|
(i)
|
Arrangements with connected
persons
|
No
agreements, arrangements or commitments of any kind exist between any member of
the Target Group on the one hand and the Sellers, its co-directors, co-managers,
co-shareholders or former shareholders and any of their Affiliates including,
but not limited to, agreements, arrangements or commitments under which any
member of the Target Group is required to pay royalties, service fees or any
other payments of any kind.
|
|
(ii)
|
Warranties relating to product
recalls
|
No
products sold or supplied by any member of the Target Group have been subject to
a product recall or retrofit campaign or other quality defects.
|
|
(iii)
|
Effects of the execution and
performance of this
Agreement
|
The
execution and performance of this Agreement by the Sellers shall not in itself
result in the following events:
|
|
(a)
|
Any
extraordinary termination of or significant modification to any material
supply contracts or material customer agreements or to any Important
Agreement of any member of the Target
Group;
|
|
|
(b)
|
Any
obligation to pay a bonus or indemnity or other form of compensation,
whether monetary or otherwise, to any of the employees or managers of any
member of the Target Group.
|
|
|
4.3.13
|
Warranties
relating to employees
|
Each
member of the Target Group has duly performed its obligations with relation to
any employee, collective agreement or other body representing employees
including, but not limited to, the constitution of and all obligations relating
to works’ council.
14
The
Disclosure Letter lists all of employees of the Target Group (as per the date of
this Agreement), the age of such employees, the seniority of each employee, the
main terms of the employees’ contract and the amount of wages and labour costs
for all employees.
The
employment contracts of all the Senior Employees contain a standard
confidentiality clause, a standard IP protection clause and a restriction on
employment with competitors that complies with the relevant collective
bargaining agreement applicable to the Business. There has been no notice of
termination given to any Senior Employee.
Except as
disclosed on the Disclosure Letter, no employee has given written notification
to the Target Group of his intention to terminate his contract, nor has given
formal notice to leave or is under notice of dismissal.
None of
the Target Group’s subcontractors or independent consultants, or employees of
these subcontractors or independent consultants, have any right against the
Target Group to claim that they must be categorised as actual employees of the
Target Group as a result of their past relations with the Target
Group.
The
Target Group has satisfied all its material obligations relating to labour and
social security laws including those relating to (i) the use of temporary
personnel, (ii) employees' representation, (iii) the application of collective
bargaining agreements and (iv) those to be carried out in view of the sale of
the Shares.
Each
member of the Target Group (other than the US Subsidiary) has entered into an
agreement for the reduction of the working time to 35 hours, which has been
provided to the Buyer and is set out in the Disclosure Letter and implemented
such reduction in compliance with all applicable laws and regulations and the
terms of such agreement.
There are
no retirement, death or disability benefit Schemes for officers or employees of
the Target Group nor is the Target Group under any obligation to or in respect
of any former or present officers or employees of the Target Group with regard
to such benefit schemes pursuant to which the Target Group is or may become
liable to make payments.
|
|
4.3.15
|
Warranties
in relation to litigation
|
Save as
disclosed in the Disclosure Letter, the Target Group is not engaged in any
litigation, action or arbitration proceedings or any dispute (including
investigations or public enquiries) and has not been served with any notice
making it a party to a litigation, action, arbitration or other legal
proceedings with the exception of debt collection by the Target Group in the
Ordinary Course of Business and no litigation, arbitration or other legal
proceedings are threatened in writing or pending either by or against the Target
Group and there are no facts known to any of the Sellers which might give rise
to any such proceedings.
15
The
Target Group is not the subject of any investigation, inspection, inquiry,
control or other procedure by any governmental authority (particularly the tax,
customs, competition, fraud or health, social security and labour authorities)
regarding its operations and activities.
|
|
4.3.16
|
Compliance
with laws
|
Each
member of the Target Group is in compliance with applicable laws, regulations
and practices in France and abroad in all material respects.
Neither
the Target Group, nor any of its officers and employees, have committed in the
course of their employment any act which may entail the criminal liability of
the Target Group.
|
|
(i)
|
The
Target Group does not own freehold
premises.
|
|
|
(ii)
|
The
ALS Property and the FGP Property are occupied by ALS and FGP respectively
pursuant to valid leases and the Target Group has complied with all of its
material obligations under these leases. No notice to quit
in respect of these leases has been served on the Target Group and the
sale of the Shares does not constitute a termination event under such
leases.
|
|
|
(iii)
|
There
are no circumstances subsisting in relation to the Properties which would
entitle any third party to exercise a right or power of entry or to take
possession or, so far as the Sellers are aware, which would in any other
way materially affect or restrict its continued possession, enjoyment or
use; all material licences, consents and approvals required from the
landlords and any superior landlords under the leases relating to the
Properties have been obtained and the covenants on the part of the tenant
contained in the licences, consents and approvals have been duly performed
and observed in all material respects; there are no rent reviews under
such leases currently in progress; all such leases that should have been
registered with any government registry have been so registered; the
Properties are in a good and substantial state of repair and condition
(allowing for fair wear and tear) free from any material visible defects
and fit for the purpose for which they are presently used; and, the
present use of each of the Properties complies in all material respects
with all requirements of law, zoning restrictions and restrictive
covenants.
|
16
|
5.1
|
Place
and time of the Closing
|
The
Closing shall take place on the Closing Date at the offices of Hammonds
Xxxxxxxx, 0, Xxxxxx Xxxxxxxxx, 00000 Xxxxx.
|
5.2
|
At
the Closing, the Sellers shall deliver the following to the Buyer and/or
its nominees:
|
|
|
5.2.1
|
Evidence
that each of Jean-Xxxxxx Xxxxxx and Xxxx Xxxxx have transferred their
respective shares (one each) in FGP to Xxxxxxx Xxxxxx prior to
Closing;
|
|
|
5.2.2
|
Letters
of resignation from each of the corporate officers and administrators of
the Target Group, including without limitation, each of the (i) President
of GS Sensors and ALS and (ii) the PDG of FGP with effect from the Closing
Date containing an acknowledgement that his rights are fully satisfied and
that he has no claim or action of any nature whatsoever against GS
Sensors, ALS and FGP respectively and that he waives all rights and claims
he may have against GS Sensors, ALS and FGP
respectively
|
|
|
5.2.3
|
Duly
completed, executed and dated Cerfa declarations and share transfer forms
(“ordre de
mouvement”) in respect of the GS Sensors Shares, the ALS Shares and
the FGP Shares in favour of the
Buyer;
|
|
|
5.2.4
|
Evidence
that FGP has been released from the Existing FGP Lease and has entered
into the New FGP Lease on or prior to
Closing;
|
|
|
5.2.5
|
Evidence
that the DF Share Purchase Agreement has been entered into and is
unconditional save in respect of the obligation to pay the DF
Note;
|
|
|
5.2.6
|
Duly
executed Patent(s) Transfer Agreement evidencing the transfer of any
patents held personally or otherwise by Xxxxxxx Xxxxxx and ACFG in favour
of the FGP;
|
|
|
5.2.7
|
Evidence
that the MEAS Group has entered into the SG Employment Agreement and the
SM Employment Agreement.
|
|
|
5.2.8
|
Evidence
that GS Sensors has sold its 33% shareholding in FGP Sensors Scandinavia
prior to the Closing;
|
|
|
5.2.9
|
Evidence
that the NetSensors Asset Purchase Agreement has been entered into and is
unconditional save in respect of the obligation to pay the NetSensors
Asset Purchase Price;
|
|
|
5.2.10
|
Evidence
that FGP has sold its 3% shareholding in Dordelec prior to the
Closing;
|
|
|
5.2.11
|
The
written resignation by the current auditors and the alternate from their
respective mandates with the GS Sensors, ALS and FGP;
and
|
|
|
5.2.12
|
Evidence
that all amounts owing to Conseil Régional de la Région Centre, Société
Générale, BNP Paribas, Crédit Agricole Val de Marne and Banque Populaire
have been repaid in full and that such banks have released or are in the
process of releasing all security held by such banks on the Shares or over
any other assets of the Target
Group.
|
17
|
|
5.3
|
At
the Closing and against compliance by the Sellers with each of the
obligations set out in Clause 5.2, the Buyer
shall:
|
|
|
5.3.1
|
pay
the Closing Payment as provided under Clause
3.1.1.;
|
|
|
5.3.2
|
procure
immediate payment by ALS of the sum of €1.6m on account of the NetSensors
Asset Purchase Price;
|
|
|
5.3.3
|
procure
the immediate payment by GS Sensors of the DF
Note;
|
|
|
5.3.4
|
procure
the immediate repayment of the amounts owing to the banks detailed in
Sub-clause 5.2.12.
|
Subject
to the limitations contained in this Clause 6, the Sellers shall
jointly and severally indemnify and hold harmless the Buyer (the “Indemnified Party”) from and
against any and all Loss incurred by either the Buyer or the relevant member of
the Target Group which results from any breach of the Warranties or
non-fulfilment of any obligation on the part of the Sellers and/or the Sellers
under this Agreement provided, however, that the Sellers shall not indemnify any
Indemnified Party for any Loss, in whole or in part, if and to the extent the
fact, matter, event or circumstance giving rise to a claim was fairly disclosed
in the relevant section of the Disclosure Letter in a manner and in sufficient
detail to provide reasonable and fair disclosure to the Indemnified Party of the
disclosed matter.
For the
avoidance of doubt, it is expressly provided that each event or matter disclosed
in the Disclosure Letter constitutes a disclosure only for the warranty against
which it is disclosed, and not against the warranties taken as a whole;
provided, however, that the full description need not be restated in each
instance if cross-referenced.
The
Sellers jointly and severally undertake to indemnify the Buyer up to the full
amount of any Loss of the Target Group and/or the Buyer resulting or arising
from any Tax which would be borne by any member of the Target Group and of any
tax advantage (such as deficits which may be carried forward, depreciations
which may be known to have been postponed or other regulations allowing deferral
or reprieve) which could be questioned or postponed, following any reassessment
or other act carried out by tax or social security authority relating to a
period on or prior to the Closing and due to the fact that either the amounts
had not been paid when due, or the Tax Returns were not made on the appropriate
date or were incorrect for whatever reason provided that any Loss resulting from
a tax reassessment the sole effect of which is a shift of a Tax from one fiscal
year to the other, or to create a corresponding Tax credit, shall only give rise
to an indemnification up to the amount of penalties or late interests actually
paid.
|
6.3
|
The
Sellers’ liability under the Warranties shall be limited as
follows:
|
|
|
The
Sellers shall not be liable, and therefore shall not be required to
indemnify or pay in respect of a Loss pursuant to a Notified Claim, in the
event that such Loss results from a single event or fact, and the amount
of such Loss does not exceed €5,000 (five thousand euro). All Loss having a
similar initiating fact or cause being a single cause, shall be taken into
account as one cumulated
amount.
|
18
|
|
(i)
|
The
Sellers shall not be liable to pay all or part of Loss, pursuant to a
Notified Claim, unless the amount of such Loss, together with the Loss
resulting from previous Notified Claims shall be more than or equal to
€ 20,000
(twenty thousand euro) (the “Threshold”).
|
|
|
(ii)
|
When
the Threshold is reached or exceeded by Loss in respect of a Notified
Claim, taking into account Loss arising by virtue of previous Notified
Claims, then, the Sellers shall be obliged to pay the amount of that Loss
together with all the Loss arising by virtue of any previous Notified
Claim unpaid at that date.
|
The total
cumulated amount of payments which the Sellers may be obliged to make to the
Indemnified Party relating to the Warranties shall not exceed the Earn-Out
Payment.
|
|
(d)
|
Indemnification
by a third party
|
The
amounts payable under this Agreement shall be reduced by the amount of any
indemnity (net of Taxes and the costs of recovering such amounts) which is
effectively paid by a third party (including amounts paid or payable by
insurers) in relation to such amounts payable to any Indemnified Party. The
Indemnified Party shall undertake, and shall cause the Target Group to
undertake, all commercially reasonable actions to collect any amount payable
under an insurance policy.
|
|
(e)
|
Changes
attributable to the Indemnified
Party
|
The
Sellers shall not be liable for or be obliged to pay all or part of any Loss
arising under a Notified Claim in so far as the amount of such Loss results
from, or is increased by, a voluntary act or omission by the Indemnified Party,
the Target Group or their directors, employees, agents or their respective
representatives after the Closing Date, save in the case where (i) such
voluntary act could not have been avoided for legal, regulatory or contractual
reasons, or (ii) such voluntary act or omission is taken to remedy the fact that
the statements referred to in Clause 4 above made by the Sellers are not
accurate and true.
|
|
(f)
|
Obligation
on the Indemnified Party to mitigate the
Loss
|
The
Indemnified Party shall take and shall procure that all reasonable measures and
steps are taken and all reasonable assistance is given in order to avoid or
minimise the amount of the Loss which, if the above-mentioned obligation has not
been fulfilled, would entail (i) the Sellers incurring liability for Loss or
their liability already so incurred being exacerbated or increased, or (ii) the
amount of the Loss being increased.
In order
validly to request the performance of this Agreement, the Buyer shall provide a
Notified Claim (as defined hereunder) to the Sellers:
|
|
6.4.1
|
on
or before the date that is 30 Business Days after the date following the
expiration of the applicable statute of limitations, as far as questions
relating to Tax, customs or regulation of employment or social security
are concerned; and
|
|
|
6.4.2
|
on
or before the second anniversary of the Closing Date for any other event
or matter.
|
19
|
6.5
|
Information
- Parties
|
|
|
6.5.1
|
The
Buyer and the Sellers undertake fully to cooperate with each other
relating to Notified Claims.
|
|
|
The
Buyer shall provide written notice to the Sellers of any event that gives
rise to a claim under the Warranties or pursuant to Clause 6.2 as soon as
reasonably practicable following its actual awareness of such matters and
in any event within 30 days of its actual awareness of the relevant
matters, which notice shall specify the grounds on which the claim is
based (a “Notified
Claim”).
|
|
|
Failure
to give written notice to the Sellers within the time limits set out in
clause 6.4 shall preclude the Buyer from obtaining any indemnification
from the Sellers.
|
|
|
The
Buyer undertakes, and shall cause each member of the Target Group to
undertake, to ensure that the Sellers are permitted to consult freely all
relevant information or documents held by each member of the Target Group
in relation to a Notified Claim and which is reasonably necessary to
ensure an understanding of the conditions and circumstances of the
Notified Claim, provided, however, that (i) such investigations are
conducted during the business hours of the relevant member of the Target
Group, as the case may be, (ii) are conducted in such a way as shall not
disturb the normal running of the business of the relevant member of the
Target Group, or inhibit the normal activities of the relevant member of
the Target Group, and (iii) a first notice of five (5) days has been
delivered by the Sellers to the relevant member of the Target Group. The
Sellers undertake to keep confidential all information and documents which
they may receive or consult in connection
thereto.
|
|
|
6.5.2
|
If
the Sellers decide to contest the merits of a Notified Claim, the Sellers
shall notify the Buyer in writing of their reasons for doing so within 30
Business Days of receiving the Notified Claim. The Sellers shall be deemed
to have accepted the Notified Claim, if they do not respond to the
Notified Claim within this time
limit.
|
|
|
6.5.3.
|
If
the Sellers have notified the Buyer within the time limit of their reasons
for contesting the Notified Claim, the Parties shall meet each other
within 15 Business Days following their response. In the absence of an
agreement with the Buyer within 30 Business Days following the date of
this meeting, or in the absence of this meeting, the Sellers shall be
deemed to have rejected the Notified Claim and shall initiate the
arbitration proceedings set out in Clause 10.3 within 15 Business Days
from the last date on which such meeting could have been held. Failure of
the Sellers to initiate such arbitration proceedings shall be deemed to be
an acceptance of the Notified
Claim.
|
|
|
6.5.4
|
In
the event of a claim, audit notice, summons, or of any litigation matter
which has or which could give rise to a Notified Claim under this
Agreement, the Buyer shall allow the Sellers to make their observations on
the conduct of the proceedings; the Buyer shall ensure that these
observations are taken into account by the relevant member of the Target
Group in as far as such observations are reasonable and made in its
interest.
|
20
Any
payment under this Agreement shall be considered as a reduction of the Purchase
Price.
|
6.7
|
Substitution/Assignment
|
|
|
6.7.1
|
Successors
and permitted assignees of the Sellers shall be held jointly and severally
liable for the performance of the obligations of the Sellers under this
Agreement.
|
|
|
6.7.2
|
None
of the Parties shall be entitled to assign its or his rights or
obligations under this Agreement without the prior written consent of the
other Party, except that the Buyer shall be entitled to assign all or part
of its rights and obligations under this Agreement and any outstanding
claims and litigation to an Affiliate without requiring prior written
consent.
|
|
|
The
Buyer shall have the right to set-off any amounts owing by the Sellers
to the Buyer pursuant to any Notified Claims against the Total
Earn-Out Payment, subject to and in accordance with the provisions set out
in Clause 6.5.
|
The Buyer
shall be entitled to terminate this
Agreement (except as regards Clause 9, which will survive such termination)
without prior notice, in the event that any of the Shares is subject to any
Security.
|
8
|
Non-Compete
and Non-Solicitation
|
|
|
During
the Restricted Period, the Sellers (except for Xxxxxxxx Xxxxxx) undertake
jointly and severally to the Buyer and to each of its Affiliates not to
compete, directly or indirectly (including through any Affiliate of the
Sellers or otherwise) in Europe with the Business (i.e. the design,
manufacture and supply of Sensors). To this end, the Sellers (except for
Xxxxxxxx Xxxxxx) jointly and severally undertake to the Buyer and to each
of its Affiliates during the Restricted
Period:
|
|
|
(i)
|
not
to carry out or undertake, whether directly or indirectly, for its / his
own account or for the account of third parties, any activity competing
with the Business in any manner
whatsoever;
|
|
|
(ii)
|
not
to manage, advise or assist in any way, whether or not for consideration,
any Entity carrying out a business competing with the
Business;
|
|
|
(iii)
|
not
to acquire any interest in any Entity competing with the Business, other
than publicly traded or listed shares of entities that directly or
indirectly own all or part of a business that competes with the Business,
provided that the total of such ownership in any one such entity is less
than one percent (1%);
|
|
|
(iv)
|
not
to solicit supply or deal with any of the customers or suppliers of the
Business for the purposes of competing with the this
Business;
|
21
|
|
(v)
|
not
to engage in any practice the purpose of which is to evade the provisions
of this undertaking; and
|
|
|
(vi)
|
not
to use the names "GS Sensors", “ALS” or “FGP” or any words confusingly
similar to "GS Sensors", “ALS” or “FGP” in any
context.
|
(all
together referred to as the “Non-Compete
Undertakings”).
The
Sellers shall not, directly or indirectly, during the Restricted Period, for
itself or himself, and, for the same period, the Sellers shall procure that
its/his Affiliates shall not, solicit for employment or hire any officer,
director or employee employed by the Target Group or do anything to influence or
encourage any such person to leave his or her employment with the Target
Group.
The terms
and conditions of the Confidentiality Agreement shall be replaced by the
following:
|
9.1
|
The
Sellers and the Buyer shall treat as confidential and not disclose the
provisions of this Agreement and any agreement entered into pursuant to
this Agreement. Prior to Closing , the Buyer shall treat as confidential
and not disclose or use information received or obtained in respect of the
Sellers. From and after Closing, the Buyer shall treat as confidential and
not disclose or use information received or obtained in respect of the
Sellers (other than the Target Group and other than in respect of the
subject matter of this Agreement). From and after Closing, the Sellers
shall treat as confidential and not disclose or use information received
or obtained in respect of the Buyer and the Target Group; provided,
however, that the Sellers shall be permitted to use financial information
regarding the Target Group to the extent required for normal financial
reporting purposes.
|
|
9.2
|
This
Clause 9 shall not prohibit disclosure of any information if and to the
extent:
|
|
|
(i)
|
the
disclosure or use is required by law, any regulatory body or the rules and
regulations of any recognised stock
exchange;
|
|
|
(ii)
|
the
disclosure or use is required to vest the full benefit of this Agreement
in the Sellers or the Buyer, as the case may
be;
|
|
|
(iii)
|
the
disclosure or use is required for the purpose of any judicial proceedings
arising out of this Agreement or any other agreement entered into under or
pursuant to this Agreement or the disclosure is reasonably necessary,
desirable or required to be made to a taxation authority in connection
with the taxation affairs of the disclosing
party;
|
|
|
(iv)
|
the
disclosure is made to employees or professional advisers of the Sellers or
the Buyer;
|
|
|
(v)
|
the
information becomes publicly available (other than by breach of this
Agreement);
|
|
|
(vi)
|
the
other Party has given prior written approval to the disclosure or use;
or
|
|
|
(vii)
|
the
information is independently developed after
Closing;
|
|
|
(viii)
|
Provided
that prior to disclosure or use of any information pursuant to (i), (ii)
or (iii) (except in the case of disclosure to a taxation authority), the
Party concerned shall promptly notify the other party of such requirement
with a view to providing the other party with the opportunity to contest
such disclosure or use or otherwise to agree the timing and content of
such disclosure or use.
|
22
|
9.3
|
It
is expressly agreed that if this Agreement should be voided or terminated,
Clause 10 shall remain in force for the purposes of this Clause
9.
|
|
10
|
Applicable
Law/Arbitration
|
|
10.1
|
This
Agreement shall be construed and governed exclusively in accordance with
French law.
|
|
10.2
|
Any
dispute which shall arise between the Parties from this Agreement shall be
first submitted to an internal system for dispute resolution (ISDR). Such
ISDR shall consist of the Sellers and the CEO of the Buyer who shall form
the Dispute Committee. Should such Dispute Committee not be able to reach
agreement within a reasonable period of time (such period not to exceed
two months) then either Party may refer any dispute to arbitration
according to Clause 10.3 below.
|
|
10.3
|
Any
dispute arising between the parties from this Agreement which cannot be
settled by ISDR as stipulated in Clause 10 shall be finally settled either
by a sole arbitrator/mediator or (if the Parties cannot agree on such sole
arbitrator/mediator within a period of 1 (one) month) by three arbitrators
appointed by the Parties in accordance with the rules of arbitration of
the Xxxxxx xx Xxxxxxxxx xx x’Xxxxxxxxx xx Xxxxx. The non-prevailing Party
in the arbitration shall pay the fees and expenses of the arbitrators and
the costs of arbitration and the enforcement of any award rendered therein
including reasonable attorney’s fees and expenses of the prevailing party.
Such arbitration shall take place in Paris; the language of the
arbitration shall be English.
|
|
11.1
|
This
Agreement can only be changed or modified in writing by the
Parties.
|
|
11.2
|
A
waiver by any Party of any of its rights under this Agreement must, in
order to be valid, be made in
writing.
|
|
11.3
|
If
any provision of this Agreement is held to be illegal, invalid,
unenforceable or void, in whole or in part, under enactment or rule of
law, the Parties shall substitute such invalid provision by a valid
provision which achieves as much as possible the purport, sense and
economic purpose of the invalid provision. The remaining provisions of
this Agreement shall not be affected by the nullity/invalidity of
individual provisions and shall remain in full force and effect unless
such invalid provision is of such essential importance to this Agreement
that the Parties could not be reasonably expected to have concluded the
Agreement without the invalid
provision.
|
|
11.4
|
Unless
this Agreement provides otherwise, each Party shall bear its own fees,
expenses and costs in connection with this Agreement and the transactions
contemplated herein as well as any taxes required by law to be paid by
such Party.
|
|
11.5
|
Both
Parties undertake not to disclose this Agreement and not to make any
announcement in respect of the subject matter of this Agreement unless
specifically agreed between them or unless there is an obligation to
disclose pursuant to a legal
obligation.
|
|
11.6
|
The
Sellers agree that restructuring (contributions, apport partiel
d’actifs, mergers, splits and other transactions) which may involve
the Buyer/MEAS Group and/or the Target Group shall not affect the rights
and undertakings of the Parties to this Agreement and, in particular, the
Warranties made by the Sellers and the indemnification procedure under
this Agreement shall remain applicable mutandis mutandis and
unchanged.
|
23
|
12.1
|
Any
demand, notice or other communication under this Agreement, whether
required or permitted to be given hereunder, shall be given in writing by
mail, courier, telefax or email and to the address stipulated in Clause
12.2 or such other address as the Parties shall nominate from time to time
to all other Parties hereto in accordance with the Clause. Any such notice
or communication must be in the English
language.
|
|
12.2
|
Every
notice or communication given in accordance with this clause shall be
deemed to have been received as
follows:
|
|
Means
of Dispatch
| |
Deemed
received
|
| | | |
|
Delivery
by hand;
| |
the
day of delivery;
|
|
Post
(registered mail):
| |
48
hours after posting with the postal date being on the registered mail
slip; and
|
|
Facsimile
or other means of visible electronic reproduction
| |
on
the date the senders machine issues a transmission report in respect of
the notice or communication provided that in case of electronic messages a
notification of receipt by the receiving party’s machine is requested and
received
|
24
|
12.3
|
The
address for notice under this Agreement for each Party is as
follows:
|
|
Sellers:
|
|
Xxxxxxxx Xxxxxx
|
|
|
|
0
Xxxxxx xx Xxxxx Xxxxxxxx
|
|
|
|
00000
XXX XXXXXXX
|
|
|
|
Xxxxxx
|
|
|
|
|
|
|
|
Xxxxxxx
Xxxxxx
|
|
|
|
0
Xxxxxx xx Xxxxx Xxxxxxxx
|
|
|
|
00000
XXX XXXXXXX
|
|
|
|
Xxxxxx
|
|
|
|
|
|
|
|
Xxxxxxxx
Xxxxxx
|
|
|
|
000-000
Xxxxxx xx Xxxxxxxxxxxxx
|
|
|
|
00000
XX XXXXXXX-XXXXXXX
|
|
|
|
Xxxxxx
|
|
|
|
|
|
|
|
Xxxx
Xxxxx
|
|
|
|
00
Xxx xx Xxxx Xxxxxxxx
|
|
|
|
00000
XXXXX
|
|
|
|
Xxxxxx
|
|
|
|
|
|
|
|
Xxxxxxxx
Xxxxxxxx
|
|
|
|
0
Xxxxxx xx Xxxxxx
|
|
|
|
00000
XXXXXXXX XX XXXXXXXXXX
|
|
|
|
Xxxxxx
|
|
|
|
|
|
With
copy to:
|
|
Xxxxxxxx
Xxxxxxx-Xxxxxxx
|
|
|
|
SCP
LMC Partenaires
|
|
|
|
00,
xxx Xxxxxxx
|
|
|
|
00000
XXXXXXXXXX
|
|
|
|
Xxxxxx
|
|
|
|
|
|
Buyer:
|
|
MEAS EUROPE
|
|
|
|
000
Xxxxxx xx Xxxxxxx Xxxxxxxxxx,
00000
Xxxxxxxx Xxxxx
|
|
|
|
Xxxxxx
|
|
|
|
FAO:
Jean-François Allier
|
|
|
|
Email:
xxxx-xxxxxxxx.xxxxxx@xxxx-xxxx.xxx
|
|
|
|
|
|
With
copy to
|
|
Xxxx
Xxxx
Xxxxxxxx
Xxxxxxxx
|
|
|
|
0
Xxxxxx Xxxxxxxxx
|
|
|
|
00000
Xxxxx
|
|
|
|
Xxxxxx
|
|
13
|
Buyer’s
Representations And Warranties
|
|
13.1
|
The
Buyer has full power and authority and has taken all action necessary to
execute and deliver and to exercise its rights and perform its obligations
under this Agreement and each of the documents executed on the date
hereof.
|
|
13.2
|
The
Buyer was incorporated in accordance with its memorandum and articles of
association and is validly existing. The execution by the Buyer of this
Agreement shall not constitute a violation of any term or provision of its
statutes, or any order, writ, injunction, decree, judgment of any legal
body to which the Buyer is subject, the effect of which would impair the
ability of the Buyer to perform its obligations pursuant to this
Agreement.
|
25
This
Agreement is executed in 6 (six) copies, each of which will be deemed to be an
original.
|
Signatures
|
|
|
|
|
|
|
|
|
Signed
by Jean-François Allier
|
|
|
|
|
|
|
|
|
MEAS
Xxxxxx
|
|
|
|
|
|
Xxxx-Xxxxxxxx
Allier
|
|
|
|
|
| | |
|
Signed
by Xxxxxxxx Xxxxxx
|
|
|
|
|
|
|
|
|
Xxxxxxxx
Xxxxxx
|
|
|
|
|
| | |
|
Signed
by Xxxxxxxx Xxxxxx
|
|
|
|
|
|
|
|
|
Xxxxxxxx
Xxxxxx
|
|
|
|
|
| | |
|
Signed
by Xxxx Xxxxx
|
|
|
|
|
|
Xxxx
Xxxxx
|
|
|
|
|
| | |
|
Signed
by Xxxxxxxx Xxxxxxxx
|
|
|
|
|
|
Xxxxxxxx
Xxxxxxxx
|
|
| | |
|
|
|
|
Signed
by Xxxxxxx Xxxxxx
|
|
|
|
|
|
Xxxxxxx
Xxxxxx
|
|
26
SCHEDULE
1
Part
1
GS
SENSORS
GS
SENSORS’ share capital is made up of 70 000 shares of 1€ each held as
follows:
|
Name
of Seller
| |
Number of shares
| | |
Entitlement to Closing
Payment (€)
| |
|
Xxxxxxxx
Xxxxxx
| | | 32
618 | | | | 592
669 | |
|
Xxxx
Xxxxx
| | | 27
431 | | | | 498
371 | |
|
Xxxxxxxx
Xxxxxxxx
| | | 9
951 | | | | 180
809 | |
|
TOTAL
| | | 70
000 | | | | | |
Part
2
ALS
ALS’s
share capital is made up of 150 000 shares of 1€ each held as
follows:
|
Name
of Seller
| |
Number of shares
| | |
Entitlement to Closing
Payment (€)
| |
|
Xxxxxxxx Xxxxxx
| | | 16
000 | | | | 646
400 | |
|
Xxxxxxxx
Xxxxxx
| |
2
000
| | | | 80
800 | |
|
Xxxx
Xxxxx
| | | 10
000 | | | | 404
000 | |
|
Xxxxxxxx
Xxxxxxxx
| | | 10
000 | | | | 404
000 | |
|
TOTAL
| | | 38
000 | | | | | |
Part
3
FGP
FGP’s
share capital is made up of 10 000 shares of 50€ each held as
follows:
|
Name
of Seller
| |
Number of shares
| | |
Entitlement to Closing
Payment (€)
| |
|
Xxxxxxxx
Xxxxxx
| |
2
000
| | | | 242
160 | |
|
Xxxxxxx
Xxxxxx
| | | 5
449 | | | | 642
820 | |
|
Xxxxxxxx
Xxxxxx
| | | 550 | | | | 67
921 | |
|
Xxxx
Xxxxx
| | | 1 | | | | 50 | |
|
TOTAL
| | | 8
000 | | | | | |
Cumulated
Total
|
Name
of Seller
| |
Total Entitlement to Closing
Payment (€)
| | |
Total Maximum Entitlement to
Earn-Out Payment (€)
| |
|
Xxxxxxxx
Xxxxxx
| | | 1,599,847.59 | | | | 382,942 | |
|
Xxxxxxx
Xxxxxx
| | | 526,414.08 | | | | 126,003 | |
|
Xxxxxxxx
Xxxxxx
| | | 146,331.15 | | | | 35,026 | |
|
Xxxx
Xxxxx
| | | 902,518.47 | | | | 216,028 | |
|
Xxxxxxxx
Xxxxxxxx
| | | 584,888.17 | | | | 140,000 | |
|
TOTAL
| | | 3,760,000 | | | | 900,000 | |
27
SCHEDULE
2
THE
TARGET GROUP
Part
1
GS
Sensors
|
Name:
|
GS
SENSORS
|
|
|
|
|
Type
of corporate identity:
|
Société
par actions simplifiée
|
|
|
|
|
Place
of registration:
|
Commercial
Register of the Local Court of
Versailles
|
|
|
|
|
Registered
number:
|
414
200 972 RCS Versailles
|
|
|
|
|
Registered
Office:
|
00
xxx xxx Xxxxx – 00000 Xxx Xxxxxx Xxxx Xxxx
|
|
|
Xxxxxx
|
|
|
|
|
President:
|
Xxxx
Xxxxx
|
|
|
|
|
Financial
year end
|
31
December
|
|
|
|
|
Auditors:
|
Audexco
|
|
|
|
|
Share
Capital:
|
70,000
€ consisting of 70,000 shares of
1€
|
28
Part
2
ALS
|
Name:
|
ALS
|
|
|
|
|
Type
of corporate identity:
|
Société
par actions simplifiée
|
|
|
|
|
Place
of registration or
Country
of incorporation
|
Commercial
Register of the Local Court of Dreux
|
|
|
|
|
Registered
number:
|
000
000 000 RCS Dreux
|
|
|
|
|
Registered
Office:
|
00,
xxx Xxxxxxx Xxxxxx – 00000 – XXXXXXXXXXX,
|
|
|
Xxxxxx
|
|
|
|
|
President:
|
Xxxxxxxx
Xxxxxxxx
|
|
|
|
|
Financial
year end
|
30
June
|
|
|
|
|
Auditors:
|
Audexco
|
|
|
|
|
Share
Capital:
|
150,000
€ consisting of 150,000 shares of
1€
|
29
Part
3
FGP
|
Name:
|
FGP
Instrumentation
|
|
|
|
|
Type
of corporate identity:
|
Société
Anonyme
|
|
|
|
|
Place
of registration
|
Commercial
Register of the Local Court of Versailles
|
|
|
|
|
Registered
number:
|
304
603 145 RCS Versailles
|
|
|
|
|
Registered
Office:
|
00
xxx xxx Xxxxx – 00000 – XXX XXXXX XXXX
|
| | |
|
|
XXXX,
Xxxxxx
|
|
|
|
|
Président
Directeur Général:
|
Xxxx
Xxxxx
|
|
|
|
|
Financial
year end
|
31
December
|
|
|
|
|
Auditors:
|
Audexco
|
|
|
|
|
Share
Capital:
|
500,000
€ consisting of 10,000 shares of
50€
|
30
Part
4
FGP
Inc (USA)
|
Name:
|
FGP
Sensors, Inc (USA)
|
|
|
|
|
Type
of corporate identity:
|
Pennsylvania
Close Corporation
|
|
|
|
|
Place
of registration:
|
Pennsylvania,
USA
|
|
|
|
|
Registered
number:
|
2874931
|
|
|
|
|
Registered
Office:
|
000
Xxxx Xxxxxxxx Xxxxxx
|
|
|
Xxxxxxx,
Xxxxxxxxxxxx 00000, XXX
|
|
|
|
|
President:
|
Xxxxxxx
Xxxxxx
|
|
|
|
|
Financial
year end
|
April
30
|
|
|
|
|
Auditors:
|
none
|
|
|
|
|
Share
Capital:
|
$200
consisting of 200 shares at
$1.00
|
31
SCHEDULE
3
EXCLUDED
ASSETS
The
following are excluded from the assets to be transferred under this
Agreement:
|
|
1.
|
Xxxxxxxx
Gibert’s furniture;
|
|
|
2.
|
Xxxxxxx
Gibert’s furniture (not assets of the Target
Group);
|
|
|
3.
|
Sean
Gough’s furniture;
|
|
|
4.
|
Certain
items belonging to the Target Group that are used by Sellers and Xxxxxx
Xxxxxxxx in a quasi-personal matter, often located out of, or frequently
taken from, the offices, such as computers and related accessories,
cellular telephones and telephone
numbers;
|
|
|
5.
|
Telephone
No. 00.00.00.00.00. FGP agreed last year to allow a former employee,
Xxxxxxx Xxxxxxx, to take his telephone number. His telephone
number is still listed as part of FGP’s package of telephone numbers
although Mr. Ameloot pays his share of the
charges.
|
32
