Exhibit 2
Dated: December 10, 1996
AKE BJORSELL AND ANDERS BJORSELL (1)
-and
BT OFFICE PRODUCTS SWEDEN AB (2)
AGREEMENT
relating to
the sale and purchase of the
whole of the issued share capital of
VlNBORGEN I BORAS AB
AGREEMENT FOR PURCHASE OF SHARES
THIS AGREEMENT is made on December 10, 1996 BETWEEN:
(1) AKE BJORSELL, 370127-5830, residing at Riddarebo,
Funningen, S-50593 Boras, and ANDERS BJORSELL,
350606-5899 residing at Xxxxxxxxxxxxxxxx 00, X- 00000
Boras (the "Vendors" which expression shall include
the legal personal representatives of any such
persons); and
(2) BT OFFICE PRODUCTS SWEDEN AB, registration number
556535-4668, whose registered office is at X.X. Xxx
000, X-000 03 Boras (the "Purchaser").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement, including its Schedules, unless the context
otherwise requires:
"Accounts" means both the Statutory Accounts and the Pro forma
Accounts;
"Balance Sheet Date" means 31 August 1996;
"Business Day" means any day (other than a Saturday or Sunday)
on which banks are generally open for business in Goteborg;
"Company" means Vinborgen i Boras AB, particulars of which are
set out in Part 1 of Schedule 1;
"Completion" means the completion of the sale and purchase of
the Shares pursuant to Clause 4;
"Completion Date" means the date for Completion of the
transaction contemplated by this Agreement, as defined in
Clause 4;
"Confidential Information" means all information not at
present in the public domain used in or otherwise relating to
the business customers or financial or other affairs of any
Group Company;
"Consideration" means the consideration for the purchase of
the Shares shown in Clause 3.1;
"Encumbrances" means any mortgage charge, pledge, lien,
option, right of pre-emption claim, third party
-2-
interest or right or other encumbrance or security interest of
any kind and any other type of preferential arrangement having
similar effect;
"GAAP" means generally accepted Swedish accounting principles,
standards and practises generally accepted and recommended by
Foreningen for Auktoriserade Revisorer (FAR) at the date of
this Agreement;
"Group" means the Company its subsidiaries and those other
companies, specified in Schedule 1, and "Group Company" means
any one of them;
"Just Nu" means the Group Company Bjorsells Just Nu - Tryck
AB, particulars of which are set out in Part 2 of Schedule 1;
"Leased Properties" means the leased properties short
particulars of which are set out in Enclosure 10.1 to Schedule
2 and "Leased Property" means any one of them;
"Pro forma accounts" means the consolidated accounts for the
Group as at the Balance Sheet Date, based on adjustments to
the Statutory Accounts to reflect the ownership of shares in
Subsidiaries as described in Parts 2 and 3 of Schedule 1 and
the exclusion of the following companies: Bjorsells
Tryckerigrupp AB, 556163-5318 Bjorsells Tryckeri AB,
556142-4259, Multitryck AB, 556043-8672, Anders & Xxxxx
Forvaltnings AB, 556455-1686, Fastighets AB Vindan,
556432-9612 and Wecan Data och Kontorsmaskiner 556222-5531;
"Purchaser's Group" means the Purchaser and any subsidiary or
immediate holding company of the Purchaser or any subsidiary
of such holding company from time to time;
"Purchaser's Solicitors" means Xxxxxxxx & Leman Advokatbyra
AB;
"SEK" means the currency of Sweden;
"Shares" means 1.000 ordinary shares of SEK 100 each being the
entire issued share capital of the Company, described in Part
1 of Schedule 1;
"Statutory Accounts" means the consolidated audited accounts
as at the Balance Sheet Date for the Company and all
Subsidiaries at that date;
"Subsidiaries" means the subsidiaries of the Company and those
other companies particulars of which are contained in Parts 2
and 3 of Schedule 1;
-3-
"Vendors' Solicitors" means Advokatfirman Xxxxx KB;
"Warranties" means the warranties, representations and
undertakings set out in Clause 5 and Schedule 2; and
"Warranty" means any of them.
1.2 Accounts
Any reference to "Accounts" shall include the auditors'
reports, relevant balance sheets and profit and loss accounts
and related notes together with all documents which are or
would be required by law to be annexed to the accounts of the
company concerned to be laid before that company in general
meeting for the accounting reference period in question; any
reference to "Statutory Accounts" shall also include the
directors' reports.
1.3 Knowledge, Etc.
Reference in the Warranties to the knowledge, information,
belief or awareness of any of the Vendors shall be deemed to
include any knowledge, information belief or awareness which
that person would have if he had made all, diligent and
careful inquiries.
2. AGREEMENT TO SELL THE SHARES
2.1 Sale of Shares
The Vendors (each as to those of the Shares specified against
his name in Part 1 of Schedule 1) shall sell with full title
guarantee and the Purchaser, relying on (inter alia) the
Warranties and undertakings contained in this Agreement, shall
purchase the Shares free from all claims and encumbrances and
together with all rights and advantages now and hereafter
attaching thereto.
2.2 Rights of Pre-emption
The Vendors hereby waive all rights of pre-emption over any of
the Shares conferred either by the Articles of Association of
the Company or in any other way.
2.3 Effective Date
Subject to Completion, the sale and purchase of the Shares
shall be effective as per September 1, 1996.
-4-
3. CONSIDERATION
3.1 Amount
3.1.1 The Consideration for the Shares shall be
SEK 234.768.421 as calculated in accordance
with Part 4 of Schedule 1.
3.1.2 Furthermore the Purchaser shall pay to the
Vendors an amount equal to six (6) times the
average operating result for Just Nu for the
financial year ending on the Balance Sheet
Date and the following twelve month period
ending August 31, 1997 less SEK fifteen
million (15.000.000). For the purposes of
this clause, "operating result" shall mean
the operating profit after depreciation and
interest but before group transfers
(koncernbidrag), profit allocations
(bokslutsdispositioner) and tax and the
operating result shall be calculated in
accordance with GAAP consistently applied.
3.1.3 If and to the extent that the total value of
book debts, net of provisions, which were
included in the Pro forma accounts, are
realized at a higher total amount than such
value, the amount so realized on March 31,
1998, less income tax thereon to be paid by
relevant Group Company, shall be paid as
additional Consideration to the Vendors if
it exceeds SEK 100.000.
3.1.4 The Consideration shall be split equally
among the Vendors.
3.2 Payment
The Consideration shall be paid as follows:
3.2.1 SEK 220.808.421 of the Consideration in
Clause 3.1.1 shall be paid on the Completion
Date.
3.2.2 SEK 13.960.000 of the Consideration in
Clause 3.1.1 shall be paid on the Completion
Date into an escrow account with
Skandinaviska Enskilda Banken 5102 in Boras
to be opened in the joint names of the
Vendors as per instructions in Schedule 4.
The deposit shall be fixed for such periods
that a maximum of interest is received and
the funds will be released to the Vendors on
December 15, 1997, provided that the
Purchaser has not given
-5-
notice in writing of a warranty claim
pursuant to Article 2.2 in Schedule 3.
3.2.3 The consideration as per Clause 3.1.2 shall
be paid within two weeks after the accounts
per August 31, 1997 have been audited by the
auditors of Just Nu.
3.2.4 Payment pursuant to Clause 3.2.1 and 3.2.3
shall be made as per written instructions
from the Vendors' Solicitors who are
authorized to receive the same on behalf of
the Vendors.
3.3 Interest
The payments to be effected pursuant to Clause 3.2.1 and 3.2.2
shall be increased by interest at an annual rate of eight per
cent over the period from September 1, 1996 until Completion
Date.
4. COMPLETION
4.1 Date and Place
Subject as hereinafter provided Completion shall take place at
the offices of the Purchaser's Solicitors on the seventh
Business Day after the signing of this Agreement or at such
other place or on such other date as may be agreed between the
Purchaser and the Vendors.
4.2 Vendors' Obligations
On Completion Date there shall be delivered to the Purchaser:
4.2.1 duly executed transfers of the Shares in
favor of the Purchaser or as it may direct
accompanied by the relative share
certificates;
4.2.2 written approval of the sale of Shares as
contemplated in this Agreement, by the
Boards of Directors of AB X.X. Bjorsell:
4.2.3 irrevocable powers of attorney (in such form
as the Purchaser may reasonably require)
executed by authorized signatories for the
Company and AB X.X. Bjorsell in favor of the
Purchaser.
-6-
4.3 Miscellaneous Agreements
4.3.1 On Completion Date an employment agreement
shall be concluded between Ake Bjorsell and
AB X.X. Bjorsell in the form agreed by the
Parties with effect as of September 1, 1996.
4.3.2 The Vendors shall procure that the Lease
Agreements mentioned in Schedule 5 hereto
shall be adjusted by the respective lessor
at the first written request from the
Purchaser, to provide for a right to
sub-lease the premises.
4.4 General Meeting
On Completion Date Xx Xxxxxx Bjorsell shall tender his
resignation as director in all Group Companies without any
claim for remuneration, in the form agreed by the Parties.
4.5 Group Company Debts to Vendors
On Completion Date the Purchaser shall ensure that the Company
shall repay to the Vendors all outstanding amounts pertaining
to loans and shareholders contribution from the Vendors,
specified in Schedule 6.
4.6 Minority Shares
On Completion Date the Purchaser will cause to be paid to the
Vendors on behalf of the Company an amount of SEK 23.089.840,
together with interest, SEK 549.025, all in accordance with
calculations in Part 4 of Schedule 1, to finance the Company's
purchase of the minority shares in AB X.X. Bjorsell.
4.7 Satisfaction
Against compliance by the Vendors with the foregoing
provisions the Purchaser shall satisfy the Consideration in
the manner specified in Clause 3.
5. WARRANTIES
5.1 Incorporation of Schedule 2 (Warranties)
The Vendors hereby jointly and severally warrant and represent
to and undertake with the Purchaser and its successors in
title the Warranties in the terms set out in Schedule 2,
subject only to the limitations as Provided in Schedule 3. The
Vendors acknowledge that the Purchaser has entered into this
Agreement in
-7-
reliance upon (inter alia) the Warranties and on the
undertakings contained in Clause 6. Save as expressly
otherwise provided, the Warranties shall be separate and
independent and shall not be limited by reference to any other
paragraph of the said Schedule 2 or anything in this Agreement
and, save as provided for in Section 8 of Schedule 3, claims
may be made whether or not the Purchaser prior to signing this
Agreement could have discovered (whether by any investigation
made by it or on its behalf into the affairs of any Group
Company or otherwise) that any Warranty or undertaking has not
been complied with or carried out or is otherwise untrue or
misleading.
5.2 Effect of Completion
The Warranties and all other provisions of this Agreement in
so far as the same shall not have been performed at Completion
shall not be extinguished or affected by Completion, or by any
other event or matter whatsoever, except by a specific and
duly authorized written waiver or release by the Purchaser.
5.3 Measure of Damages
Without limiting the rights of the Purchaser in any way,
including the right to claim damages for Breach of Warranty on
any basis but subject to the limitations of Schedule 3, the
Vendors hereby jointly and severally agree and undertake with
the Purchaser to pay in cash to the Purchaser on demand by way
of reduction of the Consideration, if there is a breach of
warranty, a sum equal to the aggregate of:
5.3.1 the amount necessary to put the Group
Company into the position which would have
existed had there been no breach of
Warranty, in particular, where the breach of
Warranty or he effect of the breach of
Warranty is that either:
(i) the value of an asset (including one
warranted to exist but not in fact
existing) of any Group Company is or
becomes less than its value would
have been had there been no such
breach, or
(ii) any Group Company has or incurs any
liability or increase in any
liability which would not have been
incurred had there been no such
breach
then the Vendors will pay the full amount of
such deficiency or diminution in value of
the
-8-
asset or (as the case may be) of such
liability or increase in liability; and
5.3.2 all reasonable costs and expenses properly
incurred and any other loss or damage
suffered by the Purchaser or any Group
Company, directly or indirectly, as a result
of or in connection with the breach of
Warranty.
For the purpose of this Agreement, there is a "Breach of
Warranty" if, at any time it is found that any of the
Warranties has not been complied with, is untrue or is
misleading, and references to liabilities include contingent
liabilities.
6. RESTRICTIONS ON THE VENDORS
6.1 Restrictions
For the purpose of assuring to the Purchaser the full benefit
of each Group Company and in consideration for the Purchaser
agreeing to buy the Shares on the terms of this Agreement,
each of the Vendors undertakes to the Purchaser that he will
not in any Relevant Capacity during the Restricted Period
within the Restricted Area:
6.1.1 directly or indirectly carry on any business
(whether carried on under the same name as
any Group Company or any name likely to be
confused therewith or otherwise) which is of
the same or similar type to the business
carried on by any Group Company or which is
or is likely to be in competition with the
business of any Group Company;
6.1.2 be engaged, concerned or interested in, or
provide technical commercial or professional
advice to, any other business which supplies
goods and/or services which are competitive
with or of the type supplied by any Group
Company at Completion;
6.1.3 induce or seek to induce any present
employee of any Group Company to become
employed whether as employee, consultant or
otherwise by any of the Vendors.
-9-
6.2 Reasonableness of Restrictions
The Vendors agree that they consider that the restrictions
contained in this Clause are no greater than is reasonable and
necessary for the protection of the interest of the Purchaser
but if any such restriction shall be held to be void but would
be valid if deleted in part or reduced in application, such
restriction shall apply with such deletion or modification as
may be necessary to make it valid and enforceable.
6.3 Interpretation
The following terms shall have the following meanings respectively in
this Clause:
6.3.1 "Restricted Period" means three (3) years
commencing on the Completion Date:
6.3.2 "Relevant Capacity" means for his own
account or for that of any person, firm or
company (other than the Purchaser, any
member of the Purchaser's Group and the
Group Companies) and whether through the
medium of any company controlled by him (for
which purpose there shall be aggregated with
his share holding the ability to exercise
control the shares held or control exercised
by any person connected with the Vendors) or
as principal, partner, director, employee,
consultant or agent:
6.3.3 "Restricted Area" means Xxxxxx, Xxxxxx,
Xxxxxx, Xxxxxxx, Xxxxxx and Lithuania.
6.4 Confidential Information
The Vendors shall not at any time after the date of this
Agreement use or disclose to any person any Confidential
Information and shall otherwise procure that no Confidential
Information is disclosed.
6.5 Exceptions to the Restrictions
The restrictions set out in Clause 6.1 do not apply to
printing operations in Bjorsells Tryckerigrupp AB,
556163-5318, Bjorsells Tryckeri AB, 556142-4259, and
Multitryck AB, 556043-8672 in the forms that they were carried
out by these companies as per the Balance Sheet
Date.
-10-
7. COMPETITION APPLICATION
An application to the Swedish Competition Authorities shall be made by
the Purchaser with, on the Purchaser's demand, the assistance of the
Seller. The application shall be handed in by the Purchaser.
8. CONDITION
With respect to the application to the Swedish Competition Authorities
referred to in Clause 7, this Agreement may be rescinded by the
Purchaser if none of the following events have occurred prior to March
31, 1997:
(a) the expiry of a thirty day period from the day a complete
notification of the transaction contemplated by this Agreement
was made in accordance with Section 37 of the Swedish
Competition Act (1993:20) without a decision by the
Competition authority to carry out a special investigation; or
(b) decision by the Competition authority not to carry out a
special investigation or to give its clearance to the
transaction contemplated under this Agreement.
9. OTHER PROVISIONS
9.1 Announcements
The Vendors and the Purchaser shall consult together as to the
terms of, the timetable for and manner of publication of, any
announcement to shareholders, employees, customers and
suppliers or to the media or otherwise which either may
desire. Subject as aforesaid, neither the Vendors nor the
Purchaser shall make or authorize any announcement concerning
the subject matter of this Agreement unless legally required
to do so, in which case that Party shall, where reasonably
possible, consult with the other Party beforehand.
9.2 Successors and Assigns
The Purchaser shall have the right to assign it's rights and
benefits under this Agreement to a third party.
-11-
9.3 Whole Agreement and Variation
This Agreement including its Schedules and Enclosures
(together with all documents to be executed pursuant to Clause
4) contains the whole agreement between the parties relating
to the subject matter of this Agreement and no variation of
this Agreement shall be effective unless in writing and
executed by the parties hereto.
9.4 Further Assurance
At any time after the date of this Agreement the Vendors at
the request of the Purchaser shall and shall use all
reasonable endeavors at the expense of the Purchaser provided
that no expense is incurred without the prior authority of the
Purchaser, to procure that any necessary third party shall
execute such documents and do such acts and things as the
Purchaser may reasonably require for the purpose of giving to
the Purchaser the full benefit of all the provisions of this
Agreement.
9.5 Costs
The Vendors shall bear all legal accountancy and other costs
and expenses incurred by them in connection with this
Agreement. The Purchaser shall bear all such costs and
expenses incurred by it.
9.6 Notices
Any notice, claim or demand requiring to be served under or in
connection with this Agreement shall be in writing and shall
be sent,
if to the Vendors', to: Ake Bjorsell
Riddarebo, Funningen
S 505 93 Boras, and
if to the Purchaser to: BT Office Products Europe C.V
Hoogoorddreef 62
P.O. Box 22740
NL 0000 XX Xxxxxxxxx ZO
Fax no: 00 00 000 00 00
9.7 lnvalidity
If any term or provision in this Agreement shall be held to be
illegal or unenforceable, in whole or in part, under any
enactment or rule of law, such term or provision or part shall
to that extent be deemed not to form part of this Agreement
but enforceability of the remainder of this Agreement shall
not be affected. In
-12-
such case and upon request by any one of the parties hereto,
the parties shall negotiate, in good faith, the subject matter
of such term or provision and with the aim to agree on fair
and reasonable substitute terms or provisions.
9.8 Remedies
The rights and remedies of the Purchaser and the Company
and/or the Vendors under this Agreement or under applicable
law shall not be diminished or extinguished or deemed to be
waived by the granting of any indulgence, forbearance or
extension of time or the failure of or delay by the Purchaser
in asserting any such rights or remedies.
9.9 Governing Law and Submission to Jurisdiction
This Agreement and the documents to be entered into pursuant
to it shall be governed by and construed in accordance with
substantive Swedish law.
Any dispute arising out of or in connection with this contract
shall be settled by arbitration in accordance with the Swedish
Arbitration Act (SFS 1929:145) as amended. The provisions on
voting in the Swedish Code of Procedure shall apply.
The arbitral tribunal shall convene in Gothenburg, Sweden,
where the arbitration award shall be given. The arbitration
proceeding shall be held in the English language and written
materials prepared for the arbitral tribunal shall be in
English. The decision of the arbitral tribunal shall be final
and binding.
Judgment upon on the award rendered in such arbitration may be
entered in any court having jurisdiction thereof, or
application may be made to such court for a judicial
acceptance of the award or of an order of enforcement, as the
case may be.
-13-
IN WITNESS whereof this Agreement has been duly executed in
triplicate, one to each of the parties, on the first above mentioned date.
/s/Ake Bjorsell /s/ Anders Bjorsell
------------------------- --------------------------
Ake Bjorsell Anders Bjorsell
BT OFFICE PRODUCTS SWEDEN AB
/s/Janhein Pieterse
-------------------------
Janhein Pieterse
-14-
