PURCHASE AGREEMENT
EXHIBIT 4.1
THIS PURCHASE AGREEMENT (this “Agreement”) is made as of the 11th day of September,
2009, by and between Telvent GIT, S.A. (the “Company”), a sociedad anonima organized under
the laws of the Kingdom of Spain, with its principal offices at Xxxxxxxxx, 0, 00000 Xxxxxxxxxx,
Xxxxxx, Xxxxx, and Telvent Corporation, S.L., a sociedad de responsibilidad limitada organized
under the laws of the Kingdom of Spain, with its principal offices at Xxxxxxxxx, 0, 00000
Xxxxxxxxxx, Xxxxxx, Xxxxx (the “Seller”).
WHEREAS, the Company desires to acquire 370,962 of the ordinary shares (the “Shares”),
nominal value € 3.00505 per share (the “Ordinary Shares”), of the Company held by the
Seller; and
WHEREAS, Seller is willing to sell the Shares to the Company, on the terms and subject to the
conditions set forth herein;
IN CONSIDERATION of the mutual covenants contained in this Agreement, the Company and the
Seller agree as follows:
SECTION 1. Authorization of Sale and Purchase of the Shares. Subject to the terms and
conditions of this Agreement, the Seller has authorized the sale of the Shares to the Company and
the Company has authorized the purchase thereof from the Seller.
SECTION 2. Agreement to Sell and Purchase the Shares. Subject to the terms and
conditions of this Agreement, at the Closing (as defined in Section 3), the Seller shall sell to
the Company and the Company shall buy from the Seller, upon the terms and conditions hereinafter
set forth, the Shares, at the price of U.S. $18.50 per Share, for an aggregate purchase price of
U.S. $6,862,797 equivalent to € 4,706,993.82 using the closing USD/€ exchange rate on September 10,
2009 of 1.458 USD/€ (the “Purchase Price”)
SECTION 3. Delivery of the Shares at the Closing.
3.1 The Closing.
(a) The completion of the purchase and sale of the Shares (the “Closing”), shall occur
on a date designated by the Company and the Seller, but no later than September 25, 2009 (the
“Closing Date”).
(b) At the Closing, the Company shall deliver, in immediately available funds, the full amount
of the Purchase Price by wire transfer to an account designated by the Seller and the Seller shall
cause to be delivered to the Company at the Closing (or as soon thereafter as is reasonably
practicable) one or more share certificates registered in the name of the Company, or in such
nominee name(s) as designated by the Company in writing, representing the Shares and bearing an
appropriate legend referring to the fact that the Shares were sold in reliance upon the
exemption from registration under the Securities Act of 1933, as amended (the “Securities
Act”), provided by Section 4(2) thereof and Rule 506 promulgated thereunder.
(c) The Seller’s obligation to complete the purchase and sale of the Shares and deliver such
share certificate(s) to the Company at the Closing shall be subject to the following conditions,
either of which may be waived by the Seller: (a) receipt by the Seller of same-day funds in the
full amount of the Purchase Price; and (b) the accuracy of the representations and warranties made
herein by the Company as of the date hereof and the Closing Date. The Company’s obligation to
accept delivery of such stock certificate(s) and to pay for the Shares evidenced thereby shall be
subject to following conditions, either of which may be waived by the Company: (a) the accuracy of
the representations and warranties made herein by the Seller as of the date hereof and the Closing
Date; and (b) the Company’s receipt of the proceeds of a loan in the principal amount of not less
than the Purchase Price and on terms and conditions satisfactory to the Company, in its sole
discretion.
SECTION 4. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to, and covenants with, the Seller that the representations,
warranties and statements contained in this Section 4 are true and correct as of the date hereof.
4.1 Organization and Qualification. The Company is a sociedad anonima duly organized,
existing, established, and in good standing under the laws of the Kingdom of Spain and is duly
qualified as a foreign corporation to transact business in each jurisdiction in which qualification
is required, except where failure to so qualify would not result in a material adverse effect on
the business or operations of the Company.
4.2 Organization; Validity; Enforcement. (i) The Company has full right, power,
authority and capacity to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery and performance of
this Agreement, (ii) the making and performance of this Agreement by the Company and the
consummation of the transactions herein contemplated will not violate any provision of the
organizational documents of the Company or conflict with, result in the breach or violation of, or
constitute, either by itself or upon notice or the passage of time or both, a default under any
material agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other
instrument to which the Company is a party or, any statute or any authorization, judgment, decree,
order, rule or regulation of any court or any regulatory body, administrative agency or other
governmental agency or body applicable to the Company, (iii) no consent, approval, authorization or
other order of any court, regulatory body, administrative agency or other governmental agency or
body is required on the part of the Company for the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement, (iv) upon the execution and
delivery of this Agreement, this Agreement shall constitute a legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or the enforcement of creditor’s rights and the application of equitable
principles relating to the availability of remedies, and except as rights to indemnity or
contribution, may be limited by Spanish, U.S. federal or U.S. state securities laws or the public
policy underlying such laws and (v) there is not
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in effect any order enjoining or restraining the Company from entering into or engaging in any
of the transactions contemplated by this Agreement.
4.3 Market Price of Ordinary Shares. The Company has not taken, and will not take,
directly or indirectly, any action designed to cause or result in, or that has constituted or that
would reasonably be expected to constitute, the stabilization or manipulation of the market price
of the Ordinary Shares to facilitate the sale or resale of the Shares.
SECTION 5. Representations, Warranties and Covenants of the Seller. The Seller hereby
represents and warrants to, and covenants with, the Company that the representations, warranties
and statements contained in this Section 5 are true and correct as of the date hereof.
5.1 Information Available to Seller. The Seller has had the opportunity to request,
receive, review and consider all information it deems relevant in making an informed decision to
sell the Shares and to ask questions of, and receive answers from, the Company concerning such
information.
5.2 Organization and Qualification. The Seller is a sociedad de responsibilidad
limitada duly organized, existing, established, and in good standing under the laws of the Kingdom
of Spain and is duly qualified as a foreign corporation to transact business in each jurisdiction
in which qualification is required, except where failure to so qualify would not result in a
material adverse effect on the business or operations of the Seller.
5.3 Organization; Validity; Enforcement. (i) The Seller has full right, power,
authority and capacity to enter into this Agreement and to consummate the transactions contemplated
hereby and has taken all necessary action to authorize the execution, delivery and performance of
this Agreement, (ii) the making and performance of this Agreement by the Seller and the
consummation of the transactions herein contemplated will not violate any provision of the
organizational documents of the Seller or conflict with, result in the breach or violation of, or
constitute, either by itself or upon notice or the passage of time or both, a default under any
material agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other
instrument to which the Seller is a party or, any statute or any authorization, judgment, decree,
order, rule or regulation of any court or any regulatory body, administrative agency or other
governmental agency or body applicable to the Seller, (iii) no consent, approval, authorization or
other order of any court, regulatory body, administrative agency or other governmental agency or
body is required on the part of the Seller for the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement, (iv) upon the execution and
delivery of this Agreement, this Agreement shall constitute a legal, valid and binding obligation
of the Seller, enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to or the enforcement of creditor’s rights and the application of equitable
principles relating to the availability of remedies, and except as rights to indemnity or
contribution, may be limited by Spanish, U.S. federal or U.S. state securities laws or the public
policy underlying such laws and (v) there is not in effect any order enjoining or restraining the
Seller from entering into or engaging in any of the transactions contemplated by this Agreement.
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5.4 Shares. The Seller owns the Shares free and clear of (i) any restrictions on
transfer (other than restrictions under the Securities Act of 1933, as amended); and (ii) any and
all liens, pledges, security interests or other encumbrances, charge or restriction of any kind,
including any restriction on use, voting, transfer, receipt of income, or exercise of any other
attribute of ownership or any option, right of first refusal, pre-emptive right, or other right of
third parties, whether voluntarily incurred or arising by operation of law, and includes, without
limitation, any agree to give any of the foregoing in the future.
SECTION 6. Survival. Notwithstanding any investigation made by any party to this
Agreement, all representations and warranties, covenants and agreements made by the Company and the
Seller herein shall survive the execution of this Agreement, the delivery to the Company of the
Shares being purchased and the payment therefor.
SECTION 7. Indemnification.
7.1 The Company agrees to indemnify and hold harmless the Seller and all of its shareholders,
partners, members, officers, directors, employees and direct or indirect investors and any of the
foregoing persons’ agents or other representatives (including, without limitation, those retained
in connection with the transactions contemplated by this Agreement) (collectively, the
“Indemnitees”) from and against any and all actions, causes of action, suits, claims,
losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’ fees and disbursements but excluding
consequential, punitive, indirect, exemplary damages or any damages measured by lost profits or a
multiple of earnings (the “Indemnified Liabilities”), incurred by any Indemnitee as a
result of, or arising out of, or relating to (a) any misrepresentation or breach of any
representation or warranty made by the Company in this Agreement, or (b) any breach of any
covenant, agreement or obligation of the Company contained in this Agreement.
7.2 The Seller agrees to indemnify and hold harmless the Company and all of its shareholders,
partners, members, officers, directors, employees and direct or indirect investors and any of the
foregoing persons’ agents or other representatives (including, without limitation, those retained
in connection with the transactions contemplated by this Agreement) (collectively, the
“Indemnitees”) from and against any and all actions, causes of action, suits, claims,
losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’ fees and disbursements but excluding
consequential, punitive, indirect, exemplary damages or any damages measured by lost profits or a
multiple of earnings (the “Indemnified Liabilities”), incurred by any Indemnitee as a
result of, or arising out of, or relating to (a) any misrepresentation or breach of any
representation or warranty made by the Seller in this Agreement, or (b) any breach of any covenant,
agreement or obligation of the Seller contained in this Agreement.
SECTION 8. Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or certified airmail,
e-mail, confirmed facsimile or nationally recognized overnight express courier postage prepaid, and
shall be deemed given when so mailed and shall be as addressed as follows:
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if to the Company, to:
Telvent GIT, S.A.
Xxxxxxxxx, 0
00000, Xxxxxxxxxx, Xxxxxx, Xxxxx
Attention: Xxxxx Xxxxxx Xxxx
Facsimile: 00-00-000-0000
With a copy by e-mail: xxxxxxx@xxxxxxx.xxx
Xxxxxxxxx, 0
00000, Xxxxxxxxxx, Xxxxxx, Xxxxx
Attention: Xxxxx Xxxxxx Xxxx
Facsimile: 00-00-000-0000
With a copy by e-mail: xxxxxxx@xxxxxxx.xxx
with a copy (which shall not constitute a notice) to:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
E-mail: xxxxxxx@xxx.xxx
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
E-mail: xxxxxxx@xxx.xxx
or to such other person at such other place as the Company shall designate to the Seller in
writing; and
if to the Seller, to:
Telvent Corporation, X.X.
Xxxxxxxxx, 0
00000, Xxxxxxxxxx, Xxxxxx, Xxxxx
Attention: Xxxxxx Xxxxx Xxxxxxx
Facsimile: +34 (954) 937 002
With a copy by e-mail: xxxxxxxxx@xxxxxxx.xxx
Xxxxxxxxx, 0
00000, Xxxxxxxxxx, Xxxxxx, Xxxxx
Attention: Xxxxxx Xxxxx Xxxxxxx
Facsimile: +34 (954) 937 002
With a copy by e-mail: xxxxxxxxx@xxxxxxx.xxx
or to such other person at such other place as the Seller shall designate to the Company in
writing.
SECTION 9. Changes. This Agreement may not be modified or amended except pursuant to
an instrument in writing signed by the Company and the Seller. Any amendment or waiver effected in
accordance with this Section 9 shall be binding upon each holder of any securities purchased under
this Agreement at the time outstanding, each future holder of all such securities, and the Company.
SECTION 10. Headings. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be part of this
Agreement.
SECTION 11. Severability. In case any provision contained in this Agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or impaired thereby.
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SECTION 12. Governing Law. This Agreement is to be construed in accordance with and
governed by the laws of the Kingdom of Spain.
SECTION 13. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, but all of which, when taken together, shall constitute but one
instrument, and shall become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties. Facsimile signatures shall be deemed original
signatures.
SECTION 14. Entire Agreement. This Agreement and the instruments referenced herein
contain the entire understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the Company nor the Seller
makes any representation, warranty, covenant or undertaking with respect to such matters. Each
party expressly represents and warrants that it is not relying on any oral or written
representations, warranties, covenants or agreements outside of this Agreement.
SECTION 15. Fees and Expenses. Except as set forth herein, each of the Company and
the Seller shall pay its respective fees and expenses related to the transactions contemplated by
this Agreement.
SECTION 16. Parties. This Agreement is made solely for the benefit of and is binding
upon the Seller and the Company and, to the extent provided in Section 7 hereof, any person
controlling the Company or the Seller, the officers and directors of the Company, and their
respective executors, administrators, successors and assigns and no other person shall acquire or
have any right under or by virtue of this Agreement.
SECTION 17. Further Assurances. Each party agrees to cooperate fully with the other
parties and to execute such further instruments, documents and agreements and to give such further
written assurance as may be reasonably requested by any other party to evidence and reflect the
transactions described herein and contemplated hereby and to carry into effect the intents and
purposes of this Agreement.
SECTION 18. Construction.
(a) For purposes of this Agreement, whenever the context requires: the singular number shall
include the plural, and vice versa; the masculine gender shall include the feminine and neuter
genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to the effect that ambiguities are
to be resolved against the drafting party shall not be applied in the construction or
interpretation of this Agreement.
(c) As used in this Agreement, the words “include” and “including,” and variations thereof,
shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the
words “without limitation”.
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(d) Except as otherwise indicated, all references in this Agreement to “Sections”, “Schedules”
and “Exhibits” are intended to refer to Sections of this Agreement and Schedules and Exhibits to
this Agreement. The term “Business Day” means any day other than Saturday, Sunday or other day on
which commercial banks in Madrid, Spain are authorized or required by law to remain closed.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the day and year first above written.
| TELVENT GIT, S.A. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Its: Attorney in Fact | ||||
| And by: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Its: Attorney in Fact | ||||
| TELVENT CORPORATION, S.L. |
||||
| By: | /s/ Xxxxxx Xxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxx Xxxxxxx | |||
| Its: Attorney in Fact | ||||
