EXHIBIT 10.18
STOCK PURCHASE AGREEMENT
Agreement, dated 05/03, 1997 (herein and in the Exhibits attached hereto,
referred to as the "Agreement"), between Industriinvestor ASA, a company with
limited liability duly incorporated under Norwegian law ("Seller") and Opto
Sensors Inc., a corporation duly incorporated under California law ("Buyer").
WITNESSETH:
WHEREAS, Seller is the owner of all the outstanding shares ("Shares") of
Advanced Micro Electronics AS, a company with limited liability duly
incorporated under Norwegian law ("AME");
WHEREAS, Seller desires to sell and assign the Shares to Buyer, and Buyer
desires to purchase the Shares from Seller, as set forth in this agreement;
NOW, THEREFORE, the Buyer and Seller hereby agree as follows:
1. Sale and Purchase of Shares.
---------------------------
1.1 Sale and Purchase of Shares. Upon the terms and subject to the
---------------------------
conditions contained herein, on the Closing Date (as defined in Section 3),
Seller shall sell, convey, transfer and deliver to Buyer, and the Buyer shall
purchase, acquire and accept from Seller, all of the Shares of AME.
2. Purchase Price.
--------------
2.1 Purchase Price. The Purchase Price of the Shares shall be
--------------
NOK6.185.000, subject to a possible adjustment as provided in Section 2.2 (the
"Purchase Price").
The financial statements of AME for 1995 and 1996 have been presented to
Buyer in due time before the parties agreed upon the Purchase Price.
2.2 Payment of the Purchase Price. The Purchase Price shall be paid
-----------------------------
by Buyer as follows:
(a) Initial Payment. Buyer shall pay NOK2.500.000 on the Closing
---------------
Date, and the remaining NOK3.685.000 of the Purchase Price ("Second Payment") is
subject to a possible adjustment due to the Receivable Guarantee, and will be
paid as provided for in Section 2.2(b).
(b) Payment of Second Payment. The Second Payment shall be made in
-------------------------
three installments during 1997, the first on April 15th, the second on May 15th
and the last on June 15th.
1.
Each of the installments shall be for an amount equal to the full amount
collected by AME on the Receivables (as defined below) in the calendar month(s)
preceding the installment date, up to the full amount of the Second Payment.
Seller guarantees that AME will collect not less than NOK3.685.000 from the
receivables of AME on its January 31st, 1997, balance sheet ("Receivables"), in
the period from the Closing Date up to May 31st, 1997 ("Collecting Period"). To
the extent that AME's collection of the Receivables at the end of the Collecting
Period doe snot amount to NOK3.685.000, regardless of the reason therefor, the
total amount of the Second Payment shall be reduced by the amount of the
shortfall ("Shortfall").
In the event of a Shortfall at the end of the Collecting Period, the
parties shall meet at AME to decide how to handle the remaining Receivables. To
the extent any such remaining Receivables are collected, during the next 60 days
after the end of the Collecting Period or the meeting if later, Seller shall
receive the full amounts collected up to the amount of Shortfall, payable to
Seller no later than the 15th of the month following the month that the amount
was collected.
Buyer shall cause AME to make all reasonable efforts to collect the
Receivables in accordance with its past practice. Seller holds the rights to
assist in the collecting, or to take over the collecting if necessary, after the
Collecting Period. No Receivables will be reduced or forgiven without written
acceptance from Seller.
The payments under this Agreement shall be made by wire transfer to the
transferee's bank account. For this purpose the parties shall notify each other
before the Closing Date of their banks and their bank account numbers.
3. Closing. The closing of the sale and purchase provided for herein (the
-------
"Closing") will take place at the offices of Industriinvestor ASA (Oslo -
Norway) on a date agreed between the parties, no later than February 19th, 1997
(the date of the closing being the "Closing Date").
At the Closing Date Seller shall deliver the share certificate(s),
representing the all Shares, to Advokatfirmaet Schjodt AS as an Escrow Agent.
According to an Escrow Agreement, mutually accepted between the parties,
attached hereto as Exhibit A, the share certificate(s) will be released to Buyer
on June 15th, provided that Buyer has paid the last instalment of the Second
Payment in accordance with the Agreement, or earlier if Second Payment has been
made in full. The Escrow Agreement shall also contain provisions and
restrictions on voting, and guidelines for the Board of Directors.
4. Authority, Warranties and Covenants of Seller. Seller represents and
---------------------------------------------
warrants to and covenants with Buyer that:
4.1 Authority of Seller and Organization of AME. The execution,
-------------------------------------------
delivery, and performance of this Agreement have been duly authorized by all
requisite corporate actions on the part of Seller. The Agreement has been duly
executed and delivered by Sellers signatory thereto, and constitutes the valid,
binding and enforceable obligation of Seller.
2.
AME is a corporation duly organized, validly existing and in good standing
under the laws of Norway, and has full corporate power and authority to conduct
its business as it is now being conducted.
4.2 Ability to Carry Out the Agreement. Seller is not subject to, or
----------------------------------
bound by any provisions (stockholders agreement, Article of Association, law,
statute, judgement, injunction etc.) that would prevent, be violated, or under
which there would be any default as a result of the execution, delivery and
performance by Seller of this Agreement.
4.3 Title to the Shares. The Shares constitute on the Closing Date
-------------------
all the outstanding shares of the capital stock of AME.
Seller is the sole and exclusive legal and equitable owner of, and has good
marketable and insurable title to, the Shares.
The Shares have been duly authorized, validly issued and are fully paid.
There are no contracts or agreements relating to the issuance, sale or
transfer of the Shares, including options or warrants.
4.4 Financial Statements; Loss Carry Forward. The profit and loss
----------------------------------------
statement, and the balance sheet of AME for 1996 is attached hereto as Exhibit
B. Seller has also delivered to Buyer an audited financial statement of AME for
1995, attached hereto as Exhibit C ("Statements").
The Statements have been prepared in accordance with Generally Accepted
Accounting Principles and applicable laws and regulations, and fairly presents
the financial situation of AME as of December 31st, 1995 and 1996 respectively.
The Statements reflect all assets and liabilities of AME and do not fail to
state or reflect any item material to the evaluation of AME as a going concern.
There are no claims against AME not reflected in the 1996 Statement that,
according to Norwegian Generally Accepted Accounting Principles, should have
been reflected.
The net accumulated tax losses of AME as of December 31st, 1996,
(approximately NOK4.700.000) have not and will not be absorbed by Seller through
consolidation of tax positions or otherwise.
4.5 Litigation and Claims. There is no action, suit, proceeding or
---------------------
investigation pending or, to the best of AME or Sellers knowledge, threatened,
against AME or with respect to any of Its assets, at law, in equity or
otherwise, nor is there any reasonable basis for any such action, suit,
proceeding or investigation. All taxes of AME have been paid when due or have
been reserved against in the Statements.
There are no judgments, orders or decrees entered against AME which have,
or will likely have, an adverse effect on AME.
4.6 Compliance with Laws. AME's business is being conducted and has
--------------------
been conducted in compliance, in all material respects, with all applicable laws
and regulations. AME
3.
has not been notified by any governmental authority that AME is in violation of
any applicable law or regulation in respect of the activities of its business.
4.7 Environmental Matters. AME's business is conducted and has been
---------------------
conducted in compliance with all environmental laws and regulations applicable
to it. Neither Seller nor AME is aware, nor have either of them any reason to
be aware, of any actions or failures to act on the part of AME that might lead
to liability for pollution damage.
4.8 Insurance. AME has at all time maintained insurance relating to
----------
its business; covering property, fire, casualty, liability, workmen's
compensation and all other form of insurance customarily obtained by similar
businesses in the same industry.
4.9 Conduct of Business. From January 1st, 1997 until Closing Date
-------------------
Seller will cause AME to conduct its business in the same manner as previous to
the negotiations of this Agreement, and there will be made no transactions,
payments or other reductions of the assets of AME, other than in the ordinary
course of business. AME has made no payments, or accrued any liability, to
Seller prior to the Closing Date.
4.10 Board of Directors of the AME. Seller shall have the right to
-----------------------------
retain one member of the Board of Directors of AME until the Purchase Price has
been fully paid according to Section 2.2(b).
4.11 Fees and Expenses. Seller shall pay all fees and expenses
-----------------
incurred by it in connection with this Agreement and the transactions
contemplated herein.
4.12 Employees. All of the employees of AME have written employment
---------
agreements. None of the agreements contains unusual termination clauses
(including "golden parachutes"), or other irregular compensation provisions.
None of the employees has a salary exceeding NOK700.000.
4.13 No Infringement of Intellectual Property. None of the
----------------------------------------
intellectual properties used by AME has at any time in the past infringed or
misappropriated or otherwise violated, or is likely to violate, any intellectual
property rights of any other person, nor is AME otherwise in the conduct of its
business infringing upon the intellectual property of any other party.
4.14 Assets. All the Assets of AME are in good working order and
------
sufficient for AME to continue its business substantially in the same manner as
before.
4.15 Warranty Repairs. AME will not incur warranty repairs or return
----------------
obligations in excess of NOK1OO.000 a year. Seller shall indemnify Buyer for
any such obligation in excess of NOK100.000 a year.
4.16 Major Customer and Agreements. Neither Seller, nor AME has any
-----------------------------
knowledge to the effect that, or any reason to believe that, any major customer
of AME is likely to terminate existing contracts with AME.
Attached as Exhibit D is a list of all the contracts, agreements and
commitments of AME for the purchase of goods or services, or representing a
total potential commitment of AME in excess of NOK100.000.
4.
5. Representations, Warranties and Covenants of Buyer. Buyer represents
--------------------------------------------------
and warrants to and covenants with Seller that:
5.1 Organization and Authority of Buyer. Buyer is a corporation, duly
-----------------------------------
under incorporation, valid existing and in good standing under the laws of
California, with the corporate power and authority to enter into this Agreement
to which it is a signatory, and to perform its obligations hereunder. The
execution, delivery, and performance of all sides of this Agreement have been
duly authorized by all requisite corporate actions on the part of Buyer. The
Agreement has bean duly executed and delivered by Buyer's signatory thereto, and
constitutes the valid, binding and enforceable obligation of Buyer.
5.2 Ability to Carry Out the Agreement. Buyer is not subject to or
----------------------------------
bound by any provisions (law, statute, judgment, injunction etc.) that would
prevent, be violated, or under which there would be any default as a result of
the execution, delivery and performance by Buyer of this Agreement and the
transactions contemplated hereby.
5.3 Fees and Expenses. Buyer shall pay all fees and expenses incurred
-----------------
by it in connection with this Agreement and the transactions contemplated
herein.
5.4 The Tandberg Loan of AME. Buyer guarantees, as within March 31st,
------------------------
1997, to release Seller from its obligation to Tandberg in respect of the
Tandberg loan of AME. If necessary to release Seller from its obligation, Buyer
will pay off the loan. Seller guarantees that AME's obligation to Tandberg, and
therefore Sellers guaranty. does not exceed NOK1.997.036 (not including
accumulated interest from January 1st, 1997, at 8% p.a., and accrued but unpaid
interest for prior periods as reflected in the Statement as of December 31st,
1996).
5.5 Conduct of Business After the Closing Date. From the Closing Date
------------------------------------------
until the Purchase Price is fully paid according to Section 2.2, Buyer will
cause AME to conduct its business in the same manner as previous to the Closing
Date, Buyer will cause AME not to, without acceptance from Seller, sell all or
substantially all its assets, or to liquidate AME, or to decrease its share
capital (other than as a result of losses, if any).
The parties will cause the Escrow Agent to exercise the voting rights of
the Shares in compliance with the foregoing, and with a view to conserve the
structure and the content of AME.
6. Post-Closing Obligations of Seller and Buyer. From after the Closing
--------------------------------------------
Date each party hereto shall fully cooperate and make available to the other
party upon request, during normal business hours, all books, records and
information necessary and useful in connection with tax return, governmental
reports, or any other matter requiring such information or material, for any
reasonable business.
7. Miscellaneous.
-------------
7.1 Indemnification of Buyer. Seller agrees to defend, indemnify and
------------------------
hold harmless Buyer against any and all claims and liabilities incurred by Buyer
by reason of, or arising out of any false, misleading or inaccurate
representation or warranty by the Seller
5.
contained in this Agreement (including any Exhibits hereto), or any breach of
any such representation or warranty, or any breach by the Seller of any
provision of this Agreement.
7.2 Limitation of Seller's Liability. Any liability of Seller
--------------------------------
relating to this Agreement is limited to the net Purchase Price actually
received, provided, however, that unless the aggregate damages do not reach
NOK100.000, Seller shall have no liability. If the aggregate damages reach or
exceed NOK100.000, Seller shall be liable for the full amount of the damage
limited to the net Purchase Price actually received. For the purpose of
NOK100.000 limit, any amounts accrued under Section 4.15 shall count, but such
amounts shall not be indemnified other than pursuant to Section 4.15.
To be valid and covered by Sellers liability after this Agreement, any
claims relating to the Agreement have to be reported to Seller within 3 months
after Buyer's or AME's first knowledge of the breach or default.
Any claim -- with the exception of those-based on defects on title to the
Shares and third party claims of patent infringement by AME -- must be made
within 12 months after the Closing Date. This, however, shall. not apply to
liability for taxes or amendments to AME's tax returns, nor for claims pursuant
to Section 4.7 (Environmental matters).
7.3 Delay in Payment of the Purchase Price. Any delay in Buyer's
--------------------------------------
payment of the Purchase Price, according to the provisions in Section 2.2, is
regarded as a substantial breach of contract. In the event of such delay,
Seller shall give Buyer written notice, following the receipt of which Buyer
shall have 5 business days to remedy the default.
7.4 Professional Secrecy. Both parties of this Agreement are bound to
--------------------
observe professional secrecy regarding all and any information given or received
in connection with the negotiations or the Agreement.
7.5 Notices. All notices and other communications hereunder shall be
-------
in writing, and shall be deemed to have been duly given if signed by the
respective person giving such notice or other communications upon receipt of;
hand delivery, certified or registered mail, return receipt requested, or
telecopy transmission with confirmation of receipt:
If to Seller to: Industriinvestor XXX
Xxxx Xxxxxxxxxx 00
0000 Xxxx, XXXXXX
If to Buyer to: Opto Sensors, Inc.
00000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 XXX
Attn: Xxxx Xxxxx
7.6 Amendments. This Agreement may be amended or modified only by a
----------
written agreement between the parties.
7.7 Applicable Law. This Agreement shall be governed by and construed
--------------
in accordance with Norwegian law.
6.
7.8 Enforceability. The invalidity of any portion of this Agreement
--------------
shall not affect the validity, force or effect of the remaining portions. If it
is held that any restriction hereunder is too broad to permit enforcement to its
fullest extent, each party agrees that a court of competent jurisdiction may
enforce such restriction to the maximum extent permitted by law, and each party
hereby consents and agrees that such scope may be judicially modified
accordingly in any proceeding brought to enforce such restriction.
7.9 Arbitration. Any dispute arising under this Agreement that is not
-----------
solved by negotiations between the parties, shall be submitted to arbitration in
accordance with the rules of the Oslo Chamber of Commerce. Any such arbitration
shall be conducted in English and held in Oslo, Norway. The award of the
arbitrators in any such proceeding shall be final and binding on the parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first set forth above, in two originals, one to each of the parties.
Dated: May 3, 1997
OPTO SENSORS, INC. INDUSTRIINVESTOR ASA
/s/ /s/
_________________________________ __________________________________
7.
