EXHIBIT 10.29
DATED THE 11TH DAY OF JULY, 2001
Hibernia Development Capital Partners I ilp,
Hibernia Development Capital Partners II ilp,
Xxxxxx Xxxxxxxxx
and
Xxxxx Xxxxxx
and
Xxxxxx Xxxxxxx
and
Measurement Specialties, Inc.
-----------------------------
SUPPLEMENTAL AGREEMENT
Concerning the amendment of the
Agreement for the purchase of the share capital of
Terraillon Holdings Limited
dated 7th June, 2001
-----------------------------
A & L GOODBODY,
SOLICITORS,
INTERNATIONAL XXXXXXXXX XXXXXXXX XXXXXX,
XXXXX XXXX XXXX,
XXXXXX 0.
DCAG0401.07P
THIS SUPPLEMENTAL AGREEMENT is dated 11th July, 2001
and made between:-
(1) THE PARTIES LISTED AS PRINCIPAL VENDORS IN THE FIRST SCHEDULE OF THE MAIN
AGREEMENT (as defined below) ("the Principal Vendors"); and
(2) MEASUREMENT SPECIALTIES INC, a corporation organised under the laws of the
State of New Jersey, with its principal place of business in Fairfield, New
Jersey ("the Purchaser").
WHEREAS:-
1. THE MAIN AGREEMENT
The Principal Vendors and the Purchaser entered into a sale and purchase
agreement dated 7th June, 2001 ("the Main Agreement") pursuant to which the
Principal Vendors agreed to sell the entire issued share capital of
Terraillon Holdings Limited ("Terraillon") to the Purchaser.
2. COMPLETION OF SALE OF TERRAILLON
Completion of the sale of the entire issued share capital of Terraillon to
the Purchaser was, as detailed in the Main Agreement, conditional upon the
Principal Vendors and the Purchaser satisfying certain preconditions, as
detailed in the Main Agreement, by no later than 25th June, 2001. One of
those preconditions to Completion was detailed at clause 3.3.2 of the Main
Agreement, and required the Purchaser to have obtained adequate financing
(on terms acceptable to the Purchaser) and approval of necessary lending
institutions, to complete the purchase of Terraillon. The Purchaser was to
have satisfied that precondition by 25th June, 2001. The Purchaser has now
confirmed to the Principal Vendors that the Purchaser will not be in a
position to satisfy the precondition contained in clause 3.3.2 and,
consequently, to achieve Completion until 3rd August, 2001.
3. CONSIDERATION UNDER THE MAIN AGREEMENT
The consideration payable by the Purchaser to the Vendors for the sale and
purchase of Terraillon was set out in the Main Agreement, and consisted of
an aggregate price of US$11,757,232, US$4,957,232 of which was payable in
cash and the balance (being US$6,800,000) in the form of 390,494 shares in
the capital of the Purchaser. The above mentioned number of shares in the
Purchaser to be issued to the Principal Vendors was based on an agreed
valuation per share of the Purchaser. The parties have now further agreed
that the valuation of US$17.41 per share at which shares in the Purchaser
were to be issued to the Vendors shall also be amended.
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4. PROPOSED AMENDMENT
The parties hereto now acknowledge that the Purchaser was not in a position
to satisfy the precondition detailed in clause 3.3.2 of the Main Agreement
five business days prior to 2nd July, 2001. The Principal Vendors are
agreeable to amending the terms of the Main Agreement, on the terms of this
Agreement, to, amongst other things as detailed hereafter, amend the target
date for Completion, and to amend the valuation of shares in the Purchaser
to be issued to the Principal Vendor in satisfaction of the non cash
portion of the consideration to be paid by the Purchaser to the Principal
Vendor pursuant to the Main Agreement.
5. INTENTION OF THIS SUPPLEMENTAL AGREEMENT
Subject to the terms of this Supplemental Agreement the parties wish to
amend:
(i) the target date for Completion;
(ii) the provisions of the Main Agreement dealing with the number of
shares in the Purchaser to be issued to the Vendors upon Completion;
(iii) altering the period for which certain Consideration Shares are
restricted;
(iv) granting the Principal Vendors a right of access to the Purchaser's
Investment Bankers;
(v) altering the period after which the parties may rescind the Main
Agreement; and
(vi) providing for certain additional payments.
IN CONSIDERATION OF THE RESPECTIVE COVENANTS, UNDERTAKINGS AND RELEASES SET
FORTH BELOW, AND, IN PARTICULAR, IN CONSIDERATION OF THE PAYMENT TO BE MADE BY
THE PURCHASER TO THE PRINCIPAL VENDORS PURSUANT TO CLAUSE 7 HEREOF, THE PARTIES
AGREE AS FOLLOWS:
6. DEFINITIONS AND INTERPRETATION
6.1. DEFINED TERMS IN THE MAIN AGREEMENT
The expressions used in this Supplemental Agreement which are defined in
the Main Agreement shall have the meanings ascribed thereto in the Main
Agreement.
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6.2. ENTIRE AGREEMENT
This Supplemental Agreement, the Main Agreement and the related
documentation which the parties are required to execute at Completion
constitute the entire agreement between the parties and each of them in
respect of the subject matter hereof and there are no other understandings,
side letters, heads of agreement or agreements binding on any of the
parties in relation thereto.
6.3. AMENDMENTS
Amendments to or modifications of this Supplemental Agreement may be made
only by mutual agreement of all parties in writing.
6.4. MAIN AGREEMENT
All the provisions of the Main Agreement insofar as the same shall not have
been performed at any time shall, subject to the terms of this Supplemental
Agreement, remain in full force and effect notwithstanding completion of
any of the transactions or matters agreed or contemplated herein.
6.5. NO PARTNERSHIP
This Supplemental Agreement shall not constitute any party the legal
representative, partner or agent of the other parties or any of them nor
(save as expressly provided in the Main Agreement as amended by this
Supplemental Agreement) shall any party or any successor of any party have
the right or authority to assume, create or incur any liability or
obligation of any kind express or implied against or in the name of or on
behalf of any other party.
6.6. CAPTIONS
The captions to the clauses and subclauses in this Supplemental Agreement
are inserted for convenience of reference only and shall not be considered
as part of or affect the construction or interpretation of this
Supplemental Agreement.
7. EXTENSION FEE
In consideration of the Principal Vendors agreeing not to rescind or
terminate the Main Agreement pursuant to the terms thereof, and agreeing to
and executing this Supplemental Agreement, the Purchaser hereby agrees to
pay US$120,000 to the Principal Vendors, which amount shall be paid by wire
transfer, or such other method as the parties may mutually agree to the
Principal Vendors' Solicitors, on the date of (as the case may be)
Completion, or upon the date of termination or rescission of the Agreement,
as amended by this Supplemental Agreement, whichever is the earliest. Such
amount shall be paid to the Principal Vendors' Solicitors and payment by
the Purchaser of such amount to the Vendors' Solicitors shall be an
absolute discharge of the Purchaser's obligations under this clause 7.
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8. AMENDMENT
As and with effect from the date hereof the provisions of the Main
Agreement shall be amended as follows:
8.1. The definition of "Market Value" shall be deleted and the following
substituted therefor:
"Market Value" means the per share public offering price at
which shares of the common stock of the Purchaser are sold
pursuant to the Registration Statement on Form S - 1 filed by
the Purchaser pursuant to the Securities Act (Registration
Statement 333-57928);".
8.2. Clause 2.2 of the Main Agreement shall be amended by the deletion of the
text beginning after "(ii)" on the third line thereof and the substitution
of the following text therefor:
"(ii) the balance of the Purchase Price being US$6,800,000 in the form of
Consideration Shares. The number of Consideration Shares to be
issued by the Purchaser to the Vendors shall be such number as is
obtained by dividing US$6,800,000 by the Market Value amount.
Consideration Shares shall be issued to each Vendor in the amount
set forth in the First Schedule;".
8.3. Clause 3.1.1 of the Main Agreement shall be amended by the deletion of the
entire text of such clause and the substitution of the following text
therefor:
"3.1.1 PROVIDED ALWAYS that each of the preconditions contained in clause
3.3 (including, without limitation, that contained in clause 3.3.2)
shall have been duly fulfilled, Completion shall take place on 3rd
August, 2001 (the "Completion Date"), at the offices of the
Principal Vendors' Solicitors;".
8.4. Clause 3.1.2 of the Main Agreement shall be amended by the deletion of the
entire text of such clause and the substitution of the following text
therefor:
"3.1.2 The Principal Vendors and the Purchaser shall use their Best Efforts
to ensure that, subject to clause 3.3.2, the conditions are
fulfilled at least five Business Days prior to 31st July, 2001,
which is the target date for fulfilment of the preconditions to
Completion set out in clause 3.3.".
8.5. Clause 3.3.2 of the Main Agreement shall be amended by the insertion of the
following words "by no later than 3rd August, 2001" at the end of that
clause after the word "Shares".
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8.6. Clause 3.5.1 (2) of the Main Agreement shall be amended by the deletion of
the text appearing in the first and second lines thereof and the
substitution of the following text therefor:
"deliver such number of Consideration Shares as is obtained by
dividing US$2,550,000 by the Market Value amount to the Escrow
Agent referred to in clause 3.5.3 to";
8.7. Clause 3.5.1 (3) shall be amended by the deletion of the first sentence
thereof and the substitution of the following text therefor:
"deliver such number of Consideration Shares as is obtained by
dividing US$4,250,000 by the Market Value amount to the
Vendors.";
8.8. Clause 3.5.2 of the Main Agreement shall be amended by:
8.8.1. the deletion of the words "cannot be sold until after the first
anniversary of the Completion Date and" in the first and second
lines thereof; and
8.8.2. the insertion of the words "Consideration Shares which are subject
to either the vesting arrangements and/or the escrow arrangements
only, as detailed herein cannot be sold until after the first
anniversary of the Completion Date; the balance of the Consideration
Shares which are not so subject to vesting arrangements and/or
escrow arrangements cannot be sold until after the date which is 9
months after the Completion Date and, for the avoidance of doubt,
may be freely sold thereafter, subject only to any restrictions
imposed by applicable law;" at the end of the existing text thereof.
8.9. A new clause 3.7.4 shall be inserted in the Main Agreement as follows:
"3.7.4 ACCESS TO INVESTMENT BANKS
--------------------------
Between the date of this Agreement and the Completion Date the
Purchaser will, upon reasonable notice, arrange reasonable access
for each of the Principal Vendors to Xxxxxxx & Company Inc,. being
the investment bankers and underwriters to the Purchaser in
relation to the follow on public offering of the Purchaser, to
enable each such Principal Vendor to discuss and obtain such
reasonable information as each such Principal Vendor, in its
absolute discretion, requires in relation to such follow on public
offer of the Purchaser";
8.10. Clause 4.2.8 of the Main Agreement shall be amended by the deletion of
the first sentence thereof and the substitution of the following
language therefor:
"Each of the Vendors shall be entitled to sell all Consideration
Shares in the capital of the Purchaser which were not at any time
subject to either the vesting arrangements or the escrow
arrangements detailed herein, at any time on or after that date
which is nine months after the Completion Date, subject only to any
restrictions imposed by applicable law. Further, each of the
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Vendors shall only be entitled to sell all their fully vested
Consideration Shares in the capital of the Purchaser which were so
subject to the escrow arrangements and/or the vesting arrangements,
as detailed herein, at any time on or after the first anniversary
of the date hereof. The parties hereto acknowledge that under no
circumstances can the Vendors sell their fully vested stock in the
capital of the Purchaser which was so subject to the escrow and/or
vesting arrangements hereunder at any time prior to the first
anniversary of the date hereof.";
8.11. Clause 5.1.3 of the Main Agreement shall be amended by the deletion of
the words "5th July, 2001" from the fourth line thereof and the
substitution of the following therefor "30th August, 2001"; and
8.12. The Main Agreement shall be amended by the deletion of the table which
currently appears in the First Schedule thereof and the substitution of
the following table therefor:
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TERRAILLON
SCHEDULE 1
1 2 3 4 5 6 7 8
Registered No. and No. and Cash Payable to Value of Vendors Value of
Holders Class of Class of Vendors at Consideration Req'd to Consideration
(Where Shares in Shares in Completion Shares to be execute Shares to be
Different) the Co. at the capital of Issued to Escrow held in Escrow
the date the Company Vendors on Agreement
hereof at Completion
completion.
Principal Vendors
-----------------
Hibernia Development BT Trustee 152,015 "B" $2,221,837 $3,047,772 YES $1,377,889
Capital Partners I, ilp Co.(Irl) Ltd 152,015 B
Hibernia Development BT Trustee 51,485 "B" $752,500 $1,032,223 YES $466,676
Capital Partners II, ilp Co.(Irl) Ltd 51,485 B
(both of 00 Xx. Xxxxxxx'x
Xxxxx, Xxxxxx 0.)
Xxxxxx Xxxxxxxxx, 86 48,125 "A" $1,303,046 $1,576,087 YES $492,857
Xxxxxxx Xxxx, Xx. 80,722 A
Helen's Wood, Booterstown, [77,000 "C"] YES
Co. Dublin
Xxxxx Xxxxxx, Cairndale House, Cairns Hill, 17,875 "A" $538,215 $583,724 YES $168,291
32,221 A
Sligo
Xxxxxx Xxxxxxx 0 $141,635 $153,612 YES $44,287
8,479 A
Minority Vendors
----------------
Xxxxxx Xxxxxx Fergal $154,888 NO
Xxxxxxxxx 5,427 A
Xxxxx Xxxxxxxx Fergal $130,687 NO
Xxxxxxxxx 4,579 A
Xxxx Xxxxxx Fergal $53,243 NO
Xxxxxxxxx 1,865 A
Xxxxx Xxxx Fergal $38,722 NO
Xxxxxxxxx 1,357 A
Art O' Gnimh Fergal $14,521 NO
Xxxxxxxxx 509 A
Xxxx Xxxx Fergal $14,521 NO
Xxxxxxxxx 509 A
-----------------------------------------------------------------------------------------------------------------------------------
Totals 339,167 4,957,232 $6,800,000 $2,550,000
===================================================================================================================================
9 10 11 12
Value of Vendors Value of Vendors req'd
Consideration req'd to Consideration to execute
Shares not execute Shares subject Non-Compete
subject to Vesting to Vesting Agreements
Escrow Agreement Agreement
Principal Vendors
-----------------
Hibernia Development $1,669,883 NO NO
Capital Partners I, ilp
Hibernia Development $565,547 NO NO
Capital Partners II, ilp
(both of 00 Xx. Xxxxxxx'x
Xxxxx, Xxxxxx 0.)
Xxxxxx Xxxxxxxxx, 86 $1,083,230 YES $541,615 YES
Hampton Park, St.
Helen's Wood, Booterstown, YES
Co. Dublin
Xxxxx Xxxxxx, Cairndale House, Cairns Hill, $415,433 YES $207,717 YES
Sligo
Xxxxxx Xxxxxxx $109,325 YES $54,663 YES
Minority Vendors
----------------
Xxxxxx Xxxxxx $154,888 YES $77,444 YES
Xxxxx Xxxxxxxx $130,687 YES $65,344 YES
Xxxx Xxxxxx $53,243 YES $26,622 YES
Xxxxx Xxxx $38,722 YES $19,361 YES
Art O' Gnimh
$14,521 YES $7,261 YES
Xxxx Xxxx
$14,521 YES $7,261 YES
--------------------------------------------------------------------------------------------------
Totals $4,250,000 $1,007,285
==================================================================================================
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9. FURTHER PROVISIONS
Without prejudice to the right of any party to rescind after the Main
Agreement, should the Purchaser request before 6th August, 2001 that
Completion might occur after that date, the Purchaser shall pay to the
Principal Vendors the sum of US$10,000 for each day after 6th August,
2001 up to and including the day on which Completion occurs PROVIDED
THAT Completion shall not occur after 30th August, 2001.
10. AFFIRMATION OF MAIN AGREEMENT
The parties affirm the Main Agreement as amended by this Supplemental
Agreement, to the intent that the Main Agreement, as so amended, shall
continue in full force and effect as the legal, valid and binding
obligations of each of the Principal Vendors and the Purchaser
enforceable in accordance with their respective terms.
11. MISCELLANEOUS
11.1. MUTUAL WARRANTY
11.1.1. Each of the parties hereto represents and warrants to each of
the other parties hereto that it has the necessary power to
enter into and perform its obligations pursuant to this
Supplemental Agreement and that there is no provision of any
licence, permit, approval, authorisation, consent or any other
document or agreement to which such party is a party or which
is binding upon such party which may be breached as a
consequence of such party entering into or performing its
obligations pursuant to this Supplemental Agreement.
11.1.2. Each party further confirms to each other party hereto that
neither entering into this Supplemental Agreement or
performing its obligations pursuant to this Supplemental
Agreement has resulted or will result in the breach by it of
any obligations which it has under its Memorandum or Articles
of Association, statues, by-laws or other terms of charter or
any corporate regulation or any law or any order, judgement or
decree of any court or governmental agency.
11.2. COUNTERPARTS
11.2.1. This Supplemental Agreement may be executed in writing
simultaneously and by one or more counterparts, each of which
shall be deemed an original, but all of which together shall
constitute one and the same agreement, which shall be
sufficiently evidenced by any one of such original
counterparts.
11.2.2. For the purpose of this clause "writing" shall mean written
signature or signature produced or substituted for such
written signature and shall be deemed to include a signature
sent by facsimile or by other electronic means.
11.3. PROPER LAW AND JURISDICTION
This Supplemental Agreement shall be governed by and construed in
accordance with the laws of Ireland and each party hereby submits to
the non-executive jurisdiction of the Irish Courts.
IN WITNESS whereof the parties hereto have executed this Supplemental Agreement
the day and year first herein written.
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SIGNED by each of
XXXX XXXXXXX AND
XXXXX XXXXXXXX
on behalf of
HIBERNIA GP LIMITED,
GENERAL PARTNER OF
HIBERNIA DEVELOPMENT CAPITAL PARTNERS I, ILP
in the presence of:
/s/
---------------------------------
Signature
/s/
---------------------------------
Signature
SIGNED by each of
XXXX XXXXXXX AND XXXXX XXXXXXXX
on behalf of
HIBERNIA GP LIMITED,
GENERAL PARTNER OF
HIBERNIA DEVELOPMENT CAPITAL PARTNERS II, ILP
in the presence of:
/s/
---------------------------------
Signature
/s/
---------------------------------
Signature
SIGNED by XXXXXX XXXXXXXXX in the
presence of:
/s/
---------------------------------
Signature
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SIGNED by XXXXX XXXXXX
in the presence of:
/s/
---------------------------------
Signature
SIGNED by XXXXXX XXXXXXX
in the presence of:
/s/
---------------------------------
Signature
SIGNED by XXXXXX XXXXXX XX.
on behalf of
MEASUREMENT SPECIALTIES INC
in the presence of:
/s/
---------------------------------
Signature
---------------------------------
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