SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT ("the Agreement"), is made and entered into this
17th day of May, 1999 by and among QMS, Inc., a Delaware corporation
("Purchaser"), and Alto Imaging Group N.V., a corporation organized under the
laws of The Netherlands ("Seller") and Jalak Investments B. V. ("Jalak").
W I T N E S S E T H:
WHEREAS, Seller owns 100% of the outstanding share of common stock of QMS
Europe B.V. (the "QMS Europe Stock"); and
WHEREAS, Jalak Investments B.V. owns 100% of the outstanding share of
common stock of QMS Australia PTY Ltd. (the "QMS Australia Stock");
WHEREAS, Purchaser is to purchase all of the QMS Europe Stock and the QMS
Australia Stock (collectively, the "Shares") from Seller and Jalak.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth below and other good and valuable considerations, the receipt and
adequacy of which are hereby authorized, and intending to be legally bound, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
The following terms used in this Agreement shall have the meaning set forth
below:
Section 1.1 "Closing" shall have the meaning set forth in Section 3.1
herein.
Section 1.2 "Australian Deed of Transfer" shall mean the deed of
transfer to be executed before an Australian notary public following the Closing
and filed with the appropriate authorities in Australia, as necessary, to record
or register the transfer.
Section 1.3 "Closing Date" shall mean the date upon which the Closing is
held.
Section 1.4 "Dutch Deed of Transfer" shall mean the deed of transfer to
be executed before a Dutch notary public following the Closing and registered or
filed, as necessary, with the appropriate Dutch authorities to record or
register the transfer.
Section 1.5 "Execution Date" shall mean the date upon which this
Agreement is executed by the last of the parties signing same.
Section 1.5 "Note" shall mean the Promissory Note in favor of Seller
from Purchaser in substantially the form attached hereto as Exhibit A executed
by Maker.
Section 1.6 "QMS Australia" shall mean QMS Australia PTY Ltd., a
corporation organized under the laws of Victoria, Australia and wholly owned
subsidiary of Seller.
Section 1.7 "QMS Europe" shall mean QMS Europe B.V., a corporation
organized under the laws of The Netherlands and wholly owned subsidiary of
Seller.
Section 1.8 "Jalak" shall mean Jalak Investments B.V., a corporation
organized under the laws of The Netherlands.
ARTICLE 2
PURCHASE AND SALE OF SHARES
Section 2.1 Purchase and Sale of Shares. At the Closing, subject to the
terms and conditions set forth herein, Seller shall sell to Purchaser and
Purchaser shall purchase from Seller the Shares. Seller shall transfer all of
its right, title and interest in and to the Share to Purchaser free and clear of
any lien, security interest, or other encumbrance of any nature and free of any
claim by any person or entity to or against the Shares.
Section 2.2 Purchase Price. The purchase price for the Shares shall be
an amount equal to U.S. Twenty Seven Million Four Hundred Eleven Thousand
Dollars (U.S. $27,411,000.00)
Section 2.3 Payment of Purchase Price. As payment for the Shares,
Purchaser shall deliver to Seller:
(a) U.S. $5,000,000.00 ("Xxxxxxx Money") payable by check or wire
transfer by noon on May 18, 1999; and
(b) U.S. $13,000,000.00 ("Cash Balance") payable by check or wire
transfer by the close of business on the Closing Date; and
(c) the Note in the original principle amount of US$9,411,000.00 (or
such an amount as will remain after deduction of any accounts
payable as per Article 7), payable by Purchaser within ten (10)
days following Purchaser's securing of financing for the sum
represented thereby, with Purchaser agreeing that such financing
shall be used for purposes of paying the Note; provided, however,
that in the event such financing is not secured by November 18,
1999, Execution Date, the Note shall then convert to a term
obligation payable over five (5) years, at the rate and upon the
terms set forth therein.
Section 2.4 Allocation of Purchase Price. The purchase price shall be
allocated between the QMS Europe Stock and QMS Australia Stock as follows:
(a) QMS Australia Stock - US $2,685,300
(b) QMS Europe Stock - US $24,725,700
ARTICLE 3
CLOSING
Section 3.1 Closing. The Closing shall take place on the date upon
which the Cash Balance of the purchase price is delivered to Seller at the
offices of Meijer c.s. in The Netherlands, on or before June 8, 1999, or such
later date as elected by Purchaser, provided that in no event shall the Closing
be held after August 16, 1999.
Section 3.2 Items to be Delivered by Purchaser. At the Closing and
subject to the terms and conditions contained herein, Purchaser shall delivery
to Seller the following:
(a) the Cash Balance of the Purchase Price; and
(b) the Note.
Section 3.3 Items to be Delivered by Seller. At the Closing and subject
to the terms and conditions contained herein, Seller shall deliver to the
Purchaser the following:
(a) the Shares; and
(b) all corporate records, minutes, seals, books, financial
information, records and other documents, instruments or writings
which are the corporate property of QMS Europe and QMS Australia
and/or any of their respective subsidiaries.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
Section 4.1 Ownership of Shares: Seller and Jalak are the respective
sole record and beneficial owners of all of the issued and outstanding Shares,
and have good and valid title to such Shares free and clear of any lien,
security interest or encumbrance of any nature and free of any claim by an
person to or against such Shares. Seller and Jalak have the full right, power
and authority to sell, assign, transfer and convey the Shares to Purchaser as
provided herein.
Section 4.2 Authorization, Validity and Enforceability. This agreement
has been duly authorized by all necessary corporate action of Seller and Jalak.
This Agreement constitutes the valid and binding obligation of Seller and Jalak,
enforceable in accordance with its terms, and the execution, delivery and
performance of this Agreement will not violate or result in a default under any
provision of any material commitment, agreement or instrument to which the
Seller is a party or by which the Seller or Jalak is bound and will not
contravene any law, rule or regulation of any administrative agency or
governmental body, or any order, writ, injunction or decree of any court,
administrative agency or governmental agency applicable to the Seller or Jalak.
Section 4.3 Litigation. There are no proceedings pending or threatened,
and there is no order, writ, judgment or decree affecting the Seller or Jalak
which, if adversely determined, would have a material adverse effect on the
transactions contemplated hereby.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents to Seller or Jalak as follows:
Section 5.1 Validity and Enforceability. This Agreement constitutes the
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, and the execution, delivery and performance of this Agreement will
not violate or result in a default under any provisions of any material
commitment, agreement or instrument to which the Purchaser is a party or by
which the Purchaser is bound, and will not contravene any law, rule or
regulation of any administrative agency or governmental body or any order, writ,
injunction or decree of any court, administrative agency or governmental agency
applicable to Purchaser.
Section 5.2 Litigation. There are no proceedings pending or threatened,
and there is no order, writ, judgment or decree affecting the Purchaser, which,
if adversely determined, would have a material adverse effect on the
transactions contemplated hereby.
Section 5.3 Investigation. Purchaser has been afforded access to all
business, financial information and other records of QMS Europe and QMS
Australia, the opportunity to ask questions of, and receive answers from, the
officers and other employees of QMS Europe and QMS Australia relating to all
aspects of QMS Europe and QMS Australia and their business, and otherwise to
obtain from QMS Europe and QMS Australia any and all information necessary to
make informed decisions with respect to the acquisition of the Shares.
Purchaser has relied solely on information obtained by it from such
investigation in making the investment represented by the purchase of the Shares
under this Agreement. Seller represents and warrants that, to the best of its
knowledge, all such information furnished to Purchaser by Seller during the
course of Purchaser's investigation is true and correct, remains so as of the
date hereof and will continue to be true and correct as of the Closing.
ARTICLE 6
CONDITIONS TO CLOSING
Section 6.1 Purchaser's Obligations. The Purchaser's obligations to
consummate the transactions contemplated hereby are conditioned upon Purchaser
obtaining financing satisfactory to Purchaser no later than the Closing Date.
Section 6.2 Liquidated Damages. In the event Purchaser does not close
the transaction contemplated herein by the Closing Date, Seller shall be
entitled to retain the Xxxxxxx Money as Liquidated Damages. Purchaser hereby
waives any and all claims to contest such on any grounds.
Section 6.3 Remedies. Seller hereby confirms that except as set forth
in Section 6.2 Purchaser will not be held liable in any way for a failure to
close the transaction contemplated herein and waives any and all claims
resulting therefrom.
ARTICLE 7
PRE-CLOSING COVENANTS
Section 7.1 Settlement of Intercompany Accounts. Prior to or at the
Closing, all intercompany accounts between (i) Seller, (ii) QMS Europe, (iii)
QMS Australia and (iv) Jalak Investments, B.V. will be settled. However, Seller
may elect to deduct any amounts payable by Seller and/or Jalak Investments B.V.
from the portion of the Purchase Price to be paid with the Note. Within five
(5) days prior to Closing, Seller shall certify such intercompany balances to
Purchaser and provide adequate documentation in support thereof.
Section 7.2 Australian Deed of Transfer. Prior to the Closing or as
soon as practicable after the Closing, Purchaser and Seller shall cause the
Australian Deed of Transfer to be filed with an Australian notary public, and
shall have the transfer recorded on the register of shareholders of QMS
Australia.
ARTICLE 8
POST-CLOSING COVENANTS
Section 8.1 Dutch Deed of Transfer. As soon as practicable after the
Closing, Purchaser and Seller shall cause the Dutch Deed of Transfer to be filed
with a Dutch notary public, and shall have the transfer recorded on the register
of shareholder of QMS Europe.
Section 8.2 Payment of Corporate Income Tax. QMS Europe has been
integrated in a Fiscal Unity with Seller for the Fiscal Year 1998. Resultant
from this Fiscal Unity QMS Europe will not be assessed for Corporate Income Tax
independently, but as a part of Seller. On the balance sheet as per October 2,
1998 an amount of HFL 4,697,012 (four million six hundred ninety seven thousand
and twelve Dutch guilders) has been accrued as liability for Corporate Income
Tax for Fiscal Year 1998 (the "Tax Amount"). Upon presentation of the
assessment for Corporate Income Tax for Fiscal Year 1998 (the "aanslag
vennootschaps-belasting 1998") in the name of Seller, QMS Europe will pay,
within two (2) weeks of said presentation, the Tax Amount to Seller's counsel,
Meijer c.s. Attorneys at Law and Tax Advisors, to be held in escrow and trust
for immediate remittance to appropriate tax authorities in full payment of the
Tax Amount, which counsel shall, within seven (7) days of its receipt of such
funds, furnish to Purchaser satisfactory evidence of such payment. Purchaser
shall cause QMS Europe to fulfill said obligation and accepts joint and several
liability for the full and timely payment of the Tax Amount by QMS Europe.
Section 8.3 Disputes with Regard to the Assessment. In the event that
QMS Europe and/or Purchaser wish to contest the assessment for the Fiscal Year
1998 by the Dutch tax authorities Seller will cooperate in full with filing such
objections and/or appeals as may be necessary, specifically by granting a power
of attorney to counsel appointed by Purchaser, provided however that no such
action may, in its reasonable opinion, be detrimental to Seller.
Section 8.4 Limited Tax Indemnity. Seller will indemnify, defend and
hold Purchaser harmless from and against all liabilities and claims arising out
of or with respect to any corporate income tax liability incurred by QMS Europe
or QMS Australia after Seller's acquisition of the Shares (i.e. October 16,
1995) and prior to September 30, 1998 (i.e., three fiscal years); provided,
however that Seller's liabilities hereunder shall be limited to one-half of such
liabilities and claims.
ARTICLE 9
ARBITRATION
Section 9.1 Arbitration. All disputes under this Agreement shall be
settled by arbitration in Atlanta, Georgia, U.S.A., pursuant to the rules of the
American Arbitration Association Commercial Arbitration Rules which rules are
deemed to be incorporated by reference herein, and judgment on the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
Section 9.2 Selection of Arbitrators. The number of arbitrators shall
be three (3), each of whom shall be disinterested in the dispute or controversy,
shall have no connection with any party hereto and shall be a person experienced
in international trade and business matters. Each party shall nominate one (1)
arbitrator and the two arbitrators so appointed shall select a third arbitrator.
Section 9.3 Arbitration Awards. Arbitration may be commenced at any
time by either Purchaser or Seller giving written notice to the other that such
dispute has been referred to arbitration under this Article 9. Any award
rendered by the arbitrators shall be final, conclusive, non-appealable and
binding on the parties hereto and shall be accompanied by a written opinion of
the arbitrators giving the reasons for the awards, provided, however, that the
arbitrators shall have no authority to award any special, indirect,
consequential, punitive or other damages not measured by the prevailing party's
actual damages and the arbitrators may not make any ruling, finding or award
that does not conform with the terms and conditions of this Agreement. Each
party shall pay its own expenses of arbitration and the expenses of the
arbitrators shall be equally shared; provided, however, that the arbitrators may
assess, as part of their award, all of any part of the arbitration expenses of
the other party (including reasonable attorney's fees) and of the arbitrators
against the party raising an unreasonable claim, defense or object.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Survival of Agreements. All covenants, agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the sale and delivery of the Shares pursuant
hereto. The foregoing provisions with regard to the survival of the warranties
and representations of the parties of this Agreement is meant only to establish
the period of time within which a claim for breach of such warranties and
representations may be brought, and is not intended to extend the applicability
of such warranties and representations to event of circumstances which may occur
after the Closing Date.
Section 10.2 Access to Books and Records
(a) Seller shall upon reasonable notice to Purchaser have access to
and a right to make copies of the books and records of Purchaser
relating to the operations and affairs of QMS Europe and QMS
Australia prior to the Closing Date.
(b) Seller shall permit Purchaser to have access, upon reasonable
notice to Seller, to books and records maintained by Seller
relating to QMS Europe's and QMS Australia's operations and
affairs prior to the Closing Date.
Section 10.3 Notices. All notices, requests, consents, or other
communications hereunder shall be in writing and shall be delivered personally
or by courier or mailed by first class registered or certified mail, postage
prepaid or telecopied, as follows:
If to Purchaser: QMS, Inc.
One Magnum Pass
Post Office Box 81250
Mobile, Alabama USA 00000-0000
Attn: Xxxxx X. Xxxxxxx
Chief Financial Officer
with a required copy to: Hand Xxxxxxxx L.L.C.
P. O. Xxx 000
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
If to Seller: Alto Imaging Group N.V.
Xxxxxxxxxxxx 00
P. O. Box 1410
3600 BK Maarssen
The Netherlands
Attn: Xxxxx xxx Xxxxxxx
with a required copy to: Meijer c.s.
Xxxxxxxxxxxxxxx 00
0000 XX'x-Xxxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Xxxxx Xxxxxx
Section 10.4 Captions and Section Headings. As used herein, captions and
section headings are for convenience only and are not a part of this Agreement
and shall not be used in construing it.
Section 10.5 Entire Agreement. This Agreement and the other documents
delivered pursuant hereto and thereto, or incorporated by reference herein,
contain the entire agreement between the parties hereto concerning the
transactions contemplated herein and supersede all prior agreements or
understandings between the parties hereto relating to the subject matter hereof.
Section 10.6 Additional Documents. The parties hereto will, at any time
after the date hereof, sign, execute and deliver, or cause others to do so, all
such powers of attorney, deeds, assignments, documents and instruments and do or
cause to be done all such other acts and deeds as may be necessary or proper to
carry out the transactions contemplated by this Agreement.
Section 10.7 Amendments. This Agreement may be amended, supplemented or
interpreted at any time, but only by a written agreement executed by the parties
hereto.
Section 10.8 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 10.9 Severability. If any one or more of the provisions of this
Agreement shall be held invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
Section 10.10 Governing Law. This Agreement shall be governed by the
laws of the State of Georgia.
Section 10.11 Governing Times and Dates: All times and dates specified
herein shall be calculated as of the date and time existing in Mobile, Alabama,
at or relevant to the time of the subject action.
Section 10.12 Governing Language. Regardless of whether a copy of this
Agreement is translated into another language, the official version hereof shall
be the English version, which shall prevail in all cases. All correspondence
and communications between the parties, all reports, orders, instructions,
literature, records and other written material pertaining to this Agreement
shall be maintained and delivered in the English language.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PURCHASER:
QMS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Title: President
Date: May 17, 1999
SELLER:
ALTO IMAGING GROUP N.V.
By:/s/ Xxxxx xxx Xxxxxxx
Title: President
Date: May 17, 1999
JALAK INVESTMENTS, B.V.
By: /s/Xxxxx xxx Xxxxxxx
Title: Managing Director
Date: May 17, 1999
