EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is dated this 30th day of July 1999, by and
between ALPNET Nederland B.V., an indirect wholly owned subsidiary of ALPNET,
Inc. (the "Purchaser"), and ALPNET, Inc., a Utah corporation ("ALPNET"), and
KONINKLIJKE MACHINEFABRIEK STORK B.V., a Dutch legal entity (the "Seller" or
"KMS"), STORK N.V., a Netherlands corporation ("STORK"), and Technical
Publications Services (TPS) B.V., a Dutch legal entity ("TPS").
R E C I T A L S:
- - - - - - - -
X. XXXXX is the sole owner of all of the issued and outstanding stock of
Seller. Seller is the sole owner of all of the issued and outstanding stock of
TPS. TPS was virtually emptied of employees and business several years ago, and
until recently, TPS had only 2 employees and one client.
B. The business unit of KMS known as "Stork TPS" has been transferred into
TPS for purposes of this transaction. The primary business of Stork TPS, and
now TPS, is in the area of language translation, industrial technical
documentation and related services. It is TPS, now containing the employees,
customers and assets of Stork TPS, that Purchaser desires to acquire.
C. Seller desires to sell and Purchaser desires to acquire all of the
outstanding stock of TPS on the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants, obligations and
representations set forth herein, the parties agree as follows:
SECTION 1. AGREEMENT FOR SALE AND PURCHASE, TERMS OF THE TRANSACTION
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1.1. Purchase Price. Upon the terms and conditions as set forth in
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this Agreement, Seller herewith sells to Purchaser, and Purchaser herewith buys
from Seller, all of the issued and outstanding shares of stock of TPS, numbered
1 up to and including 40 with a nominal value of NLG 1,000 each, (the "TPS
Shares") and each right attaching to the TPS Shares. The purchase price for the
TPS Shares (the "Purchase Price") shall consist of (i) Three Million (3,000,000)
shares of ALPNET, Inc. common stock (the "ALPNET Shares") which shall be
delivered by Purchaser on the Execution Date and (ii) the assumption of a
liability owed by TPS to KMS at the Execution Date in the approximate amount of
NLG 1,220,000.
1.2. Additional Purchase Price. Upon the first anniversary of this
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Agreement, if the average of the closing bid and closing ask price per share
(the "Average Price") of ALPNET is below $2.50, then Purchaser will issue as an
additional Purchase Price to Seller 12,000 common shares of ALPNET common stock
for each $0.01 shortfall, up to a maximum of 1,800,000 shares (the "ALPNET
Anniversary Shares"). The Average Price shall be based on the previous ten days
trading as reported by NASDAQ.
1.3. Risk. As from the Execution Date, the risk, rights and obligations
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attached to the TPS Shares shall be for the account and at the risk of the
Purchaser.
1.4. Benefits. All dividends and other distributions on the TPS Shares up
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to the Execution Date are for the benefit of Seller, all dividends and other
distributions not yet declared and/or paid on Execution Date shall pass to the
benefit of Purchaser.
SECTION 2. PAYMENT AND EXECUTION
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2.1 Transfer of Shares. The transfer of the TPS Shares shall take place
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through the execution of a notarial deed of transfer for the TPS Shares before a
neutral Dutch notary (the "Execution"), as required by Dutch law, on or before
31 July 1999 (the "Execution Date"), or on such a later date as parties may
mutually agree upon, subject to payment of the Purchase Price in the form of
delivery of the ALPNET Shares, as further described hereunder.
2.1.1. Power of Attorney. Seller and Purchaser give an irrevocable
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power of attorney to the (prospective) Civil Law Notaries, both jointly and
individually, to sign and execute the aforementioned deed of transfer on their
behalf and to sign and execute all and any documents required or necessary in
connection with the foregoing.
2.1.2 Obligations of TPS. TPS agrees that:
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(A) it will acknowledge the transfer of the TPS Shares;
(B) it will give an irrevocable power of attorney to the Civil
Law Notaries to acknowledge the transfer on its behalf in the notarial
deed, and to sign and execute all and any documents required or necessary
in connection with the foregoing; and
(C) it will take all necessary steps to ensure that the
transfer of the TPS Shares is registered in the Shareholders' Register of
TPS and that it will acknowledge such registration.
This Agreement is co-signed by TPS in acceptance of the obligations
mentioned in this clause.
2.1.3. Obligations of Purchaser. At the Execution Date, the
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Purchaser shall deliver the ALPNET Shares to Seller by delivery of the stock
certificates representing the ALPNET Shares. ALPNET shall procure registration
of the sale and transfer of the ALPNET Shares in the shareholders register of
ALPNET.
2.2 Restricted Shares. The ALPNET Shares and the ALPNET Anniversary
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Shares issued to Seller will be unregistered, restricted common shares, and
resale thereof will be subject to the provisions of the U.S. Securities Act of
1933 (the "Securities Act"), including Rule 144, which provides in part that
restricted shares cannot be sold into the public market for a period of at least
12 months their issuance, and the sale must comply with certain rules which
cover when and under what terms such shares can be sold. ALPNET, as "issuer,"
shall use its best efforts to take all actions that may be required as a
condition to the availability of Rule 144 under the Securities Act (or any
successor exemptive rule hereinafter in effect). ALPNET shall furnish to
Purchaser and/or Stork, upon request, a written statement executed by ALPNET as
to the steps it has taken to comply with the public information requirements of
Rule 144.
SECTION 3. CONDITIONS TO EXECUTION
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The obligation of the Parties to execute this Agreement on the Execution
Date is subject to the satisfaction or waiver of the following conditions:
3.1. No provision of applicable law or regulation and no judgment,
injunction, order or decree shall prohibit the consummation of the Closing;
3.2. Seller and Purchaser shall have obtained all required approvals;
3.3. The transfer of the business unit known as Stork TPS shall have been
made from KMS to TPS and all related transfers and transactions shall
have taken place. Attached hereto as Exhibit 3.3 is a true and correct
copy of the transfer/purchase agreement between KMS and TPS.
3.4. The Sellers and Purchasers shall have given all required
governmental notifications;
3.5. Completion of the proper procedure in conformity with the Act on the
Works Council ("Wet op de Ondernemingsraden"); and
3.6. Compliance with the provisions of the Netherlands Merger Code ("SER-
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besluit Fusiegedragsregels"), to each of the parties'satisfaction.
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SECTION 4. MANAGEMENT
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4.1 Mr. Ros. Seller and Purchaser agree that, with effect at the
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Execution Date, Xx. Xxxxxxx Xxxxxxx Xxx shall be dismissed and discharged as a
supervisory director of TPS without payment of any compensation.
4.2 Xx. Xxxxxx. Seller and Purchaser agree that, with effect at the
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Execution Date, Xx. Xxxxxx Xxxxxx shall be dismissed and discharged as financial
director of TPS with termination of his proxy without payment of any
compensation.
4.3 No Rights Seller confirms that neither it nor any other financial
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or supervisory director of TPS holds any rights whatsoever against TPS by virtue
of its or their past, and hereby discharges Purchaser, ALPNET and TPS in full
from any obligation in such respect.
4.4 Indemnification. Seller shall indemnify and hold harmless Purchaser
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and ALPNET against any and all damages, losses, liabilities, obligations, claims
or deficiencies of any kind or nature, whether absolute, accrued, contingent or
otherwise, arising out of the dismissal and discharge of Mr. Ros and/or Xx.
Xxxxxx as contemplated by this Section 4.
SECTION 5. REPRESENTATION AND WARRANTIES OF SELLER
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5.1 Representations and Warranties of Seller. As an inducement to
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Purchaser to enter into and perform this Agreement and in consideration of
Purchaser's covenants herein contained, on the Execution Date Stork and Seller
each represents, warrants and certifies to Purchaser and ALPNET that the
following statements are true, correct and complete as follows:
5.1.1 Properly Qualified. TPS is duly organized, validly existing and
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in good standing under the laws of The Netherlands and is authorized and
qualified to own and operate its properties and assets and conduct its
business, including but not limited to the business unit known as Stork TPS, in
all jurisdictions where such properties and assets are owned and operated and
such business is conducted, except where the failure to so qualify would not
have a material adverse effect on the business of TPS.
5.1.2. Ownership. Seller is the sole owner of the TPS Shares, both
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of record and beneficially, and has good and marketable title thereto free and
clear of all liens, pledges and encumbrances of any kind whatsoever, including
any put, call, buy-sell or other options.
5.1.3 Complete Stock of TPS. The TPS Shares constitute validly
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authorized and issued common voting stock of TPS and are fully paid and non-
assessable, and that the TPS Shares represent 100% of all of the issued and
outstanding stock of TPS.
5.1.4 Financial Statements. The financial statements consisting of
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the audited 1998 profit and loss account and the 1998 balance sheet of TPS (the
"Audited Financial Statements"), the 1998 normalized financial statements (also
part of the Audited Financial Statements) and the 1999 forecast financial
statements (the "Financial Statements") as attached as Exhibit 5.1.4, on which
the valuation of the TPS Shares is based, are complete, accurate and fairly
present the financial condition of TPS as of the date thereof and the results of
its operations. The Audited Financial Statements are in conformance with Dutch
generally accepted accounting principles consistently applied. To the best of
their knowledge, the Audited Financial Statements and the Financial Statements
are complete and accurate. With respect to the 1999 forecast financial
statements, Seller and Stork clearly state for the avoidance of doubt that no
guarantees are given for any future results of TPS.
5.1.5 No Undisclosed Known Liabilities. Except as set forth on
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Schedule 5.1.5 of the TPS Disclosure Schedules attached hereto, there are no
material known liabilities or obligations of TPS, either fixed or contingent,
that are not fully and accurately reflected in the Financial Statements other
than contracts or obligations in the ordinary and usual course of business; and
no such contracts or obligations in the usual course of business constitute
liens or other liabilities which, if disclosed, would materially alter the
financial condition of TPS as reflected in the Financial Statements unless
otherwise disclosed in writing by Seller to Purchaser prior to execution of this
Agreement.
5.1.6. Transfer from KMS to TPS. TPS owns and holds all right, title
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and interest in and to the assets set forth in the Financial Statements free and
clear of any and all liens, pledges, encumbrances and claims of any kind
whatsoever, and the transfer of such assets from KMS to TPS as mentioned in
Section 3.3 has been duly documented and done in compliance with all applicable
laws, regulations, and ordinances. Seller has provided to Purchaser all
relevant information and documentation regarding KMS' transfer of the TPS
business unit into TPS as requested by Purchaser as part of its due diligence.
5.1.7 Intellectual Property. Except as set forth on Schedule 5.1.7
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of the TPS Disclosure Schedules attached hereto, TPS owns and holds all right,
title and interest in and to its intellectual property, including but not
limited to, trade names, trademarks, service marks, copyrights, inventions,
processes, systems, products, projects, developments, technology, know-how,
trade secrets, and the computer software technology that Purchaser and ALPNET
seeks to acquire through the acquisition of TPS, free and clear of all liens,
pledges, encumbrances and claims of any kind whatsoever.
5.1.8 Customer and Business Transition. In order to assure an
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orderly transition of the business of TPS from Seller to Purchaser, Seller shall
(i) render reasonable assistance to Purchaser, as reasonably requested by
Purchaser, including but not limited to joint contacts with TPS customers, and
(ii) obtain the consent of customers under contract with KMS for TPS to be
substituted in place of, and be the successor to, KMS in all such customer
contracts.
5.1.9. Leases. TPS enjoys exclusive, peaceful and undisturbed
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possession of its current facility under a lease contract with Seller and this
lease contract is valid and enforceable in accordance with its terms, and to the
knowledge of Stork and Seller, no party thereto is in default thereunder. A copy
of the current lease agreement for the existing TPS' facility between TPS and
KMS is attached hereto as Exhibit 5.1.9(A). Attached hereto as Exhibit 5.1.9(B)
is a copy of the lease agreement for the Boxmeer office.
5.1.10. Inventory. All finished goods, raw materials, merchandise,
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stock in trade, maintenance supplies and other inventory used in the business of
TPS are accurately reflected in the Financial Statements.
5.1.11. Licenses. With respect to the applicable standard computer
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software currently being used by TPS and which will continue to be used by
Purchaser after the Execution Date, Seller shall procure that the licenses will
be transferred to TPS as soon as possible after the Execution Date. Purchaser
shall cease using the Financial Stork Systems (FSS) as of the Execution Date. A
license to use the FSS will not be transferred to TPS. Purchaser shall be
allowed the use of Seller's PIUS-O system through 31 December 1999, as specified
on Exhibit 5.1.11.
Seller and/or Stork represent and warrant that they will be
responsible for any and all liabilities or obligations of Seller arising out of
any wrongful or unlawful violation or infringement of any proprietary or
intellectual property right of any person or entity occurring on or prior to the
Execution Date.
5.1.12 No Pending Litigation. Neither Stork, Seller nor TPS are
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involved in any pending litigation or arbitration or governmental investigation
or proceeding, including but not limited to any litigation or actions regarding
labour, social security, or pension conflicts, patent or trademark infringement,
not reflected in the Financial Statements, or otherwise set forth on Schedule
5.1.12 of the TPS Disclosure Schedules attached hereto. To the best knowledge
of Stork, Seller and TPS, no litigation, claims, assessments, or governmental
investigation or proceeding is threatened against Seller or TPS. Seller and/or
Stork represent and warrant that they will be responsible for any and all debts,
expenses, obligations or liabilities of Seller arising out of any claim for
personal injury (including worker's compensation, employer's liability or
otherwise), property damage, or product liability, where the injury occurred
prior to the Execution Date (whether or not any claim is then asserted).
5.1.13 Taxes and Governmental Compliance. Except as disclosed on
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Schedule 5.1.13 of the TPS Disclosure Schedules attached hereto, TPS has filed,
or obtained appropriate extensions for filing, all Dutch, governmental, local
and other related tax returns and reports, due or required to be filed by Seller
and/or TPS (including VAT, returns and employment-related reports) on or prior
to the date of the Financial Statements with respect to all taxes withheld by or
imposed upon KMS and/or TPS. TPS has paid or accrued all taxes or assessments
which have become due since the date of the Financial Statements or has filed
extensions with regard thereto. TPS has adequately provided for any and all tax
liabilities accrued but not yet payable, and such provisions are accurately
reflected on the Financial Statements. With respect to wage taxes, TPS has
agreed in advance in writing cost charge arrangements with the Dutch Revenue
authorities. TPS is, as of the Execution Date, in full compliance with all
Dutch laws and regulations, statutes, ordinances, and regiments for the proper
continuance of a Dutch corporation, and there are no material questions of
taxation which are, as of the Execution Date, the subject of dispute with any
taxing authority. "Tax" or "taxes" as used herein shall mean all taxes, social
security contributions and levies, including but not limited to, corporate
income tax, wage tax, national insurance contributions and employee insurance
premiums, value added tax, import and excise duties, capital tax and transfer
tax, dividend withholding tax, insurance tax, and all interest on levies and
collection and fines and other costs related thereto, due or payable to any
public or similar body.
Upon Closing, Seller shall inform the tax inspector that TPS is no
longer part of the fiscal unity of Seller (for VAT purposes).
As a consequence of the transfer of the TPS Shares, TPS will leave the
fiscal unity of STORK for Corporate Income Tax purposes as per January 1st
1999. STORK agreed with the Dutch Revenue that with respect to the transfer of
the TPS Shares the anti abuse rule (standard condition no. 16 of the fiscal
unity conditions) will not apply for KMS. The consequences hereof for TPS are,
that in the fiscal balance per January 1, 1999 of KMS, the regular fiscal values
are shown, and that the TPS-assets have been transferred (as meant in Article
5.1.6) from KMS to TPS for the consistent fiscal book value. To prevent any
misunderstanding, the fiscal book value of the TPS assets does not include the
amount of goodwill Purchaser and ALPNET shall pay as part of the Purchase Price.
TPS has committed itself to the agreement with the Dutch Revenue and as a
consequence thereof shall not be allowed to claim any goodwill amortisation with
respect to the transfer of the assets from KMS to TPS.
Stork has claimed in time for the exemption of capital tax (based on
article 37 Wet op belastingen van rechtsverkeer), regarding the transfer of the
business unit Stork TPS from KMS to TPS. As a consequence of not applying the
above mentioned anti-abuse rule (condition no. 16) for the Corporate Income Tax,
the difference between net asset value and market value of the business unit
Stork TPS, will not lead to any increase in equity nor activated goodwill in TPS
for Corporate Income Tax purposes.
Seller shall be responsible for any and all debts, obligations or
liabilities of Seller for income, sales, use, transfer taxes or assessments
(including interest and penalties thereon, if any) of any kind whatsoever
arising from, based upon or related to the sale, transfer or delivery of the TPS
Shares to ALPNET and the transfer of the assets from KMS to TPS pursuant to this
Agreement.
5.1.14. Labour and Employment. Attached hereto as Exhibit 5.1.14(A)
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is a list of KMS employees that have had their employment transferred from KMS
to TPS due to the transfer of the activities of the business unit Stork TPS from
KMS to TPS as described in Section 5.1.6 (collectively the "TPS Transferred
Employees"). Exhibit 5.1.14(A) fully and accurately sets forth the compensation
details for each TPS Transferred Employee. Each TPS Transferred Employee has
been transferred to TPS at the same compensation details as set forth on Exhibit
5.1.14(A).
Attached hereto as Exhibit 5.1.14(B) is a list of current TPS
employees (Xxxxxxxx, and Schooltink) (collectively the "TPS Current Employees")
who have not had their employment transferred from KMS to TPS. Exhibit
5.1.14(B) fully and accurately sets forth the compensation details for each TPS
Current Employee. The TPS Transferred Employees and the TPS Current Employees
are collectively referred to herein as the "TPS Employees".
Attached hereto as Exhibit 5.1.14(C) is a list of temporary employees
currently working for TPS pursuant to agreements entered into between TPS and
certain labour agencies.
As part of Purchaser's due diligence, Seller has previously delivered
to Purchaser the "internal company regulations" and all other general labour
conditions which are applicable to the TPS Employees, both the employees to
which the Grafimedia CAO is applicable as well as the employees to which the CAO
in de Metaal-en Elektrotechnische Industrie or the CAO voor het xxxxx personeel
in de Metaal-en Elektrotechnische Industrie is applicable.
All of the material information related to the TPS Employees disclosed
in connection with this transaction is complete and accurate, and Seller accepts
all risks and liabilities associated with outdated or incomplete employment
contracts of the TPS Employees.
Seller represents and warrants that it will be solely responsible for
any and all debts, obligations, claims or liabilities arising out of the
dismissal of Xx. X. Xxxxxxxx on 1 August 1999, or his prior employment by
Seller.
Except as disclosed on Schedule 5.1.14 of the TPS Disclosure Schedules
attached hereto, the Audited Financial Statements fully and accurately reflect,
in accordance with Dutch GAAP, all employment or labor-related obligations and
liabilities of TPS and all such obligations and liabilities relating to the TPS
Employees.
Seller and TPS shall not have incurred or made a commitment to pay any
extraordinary expenses ("Extraordinary Expenses") including, but not limited
to, consulting fees, directors' fees, bonuses, severance payments to employees
or any amounts paid to affiliated companies that are not disclosed to Purchaser
or are not reflected on the Financial Statements or any Schedule to this
Agreement.
KMS and TPS are each in compliance with all applicable Dutch and local
laws and regulations regarding or relating to the payment of wages, salaries and
any applicable collective bargaining agreement ("CAO"), which are (i) Grafimedia
CAO and its associated pension plan, (ii) the CAO in de Metaal-en
Elektrotechnische Industrie, and (iii) the CAO voor het xxxxx personeel in de
Metaal en Elektrotechnische Industrie 1998/2002, and the regulations of the
Stork Pensioenfonds, pre-pension plans SUM (Stichting Uittreden
Metaalindustrie), early retirement benefit (vroegpensioenregeling) and SUMO
(Stichting Uittreden Metaalindustrie Overgangsregeling), relating to the TPS
Employees.
From and after closing, Seller, Purchaser and ALPNET will cooperate
fully, work together, and take all actions necessary to insure that the TPS
Employees and their pension plans will be legally and fully transferred and
accepted into the CAO in de Metaal-en Elektrotechnische Industrie inzake
vervroegd uittreden 1998/2002, the CAO in de Metaal-en Elektrotechnische
Industrie inzake vervroegd uittreden 1998/2002 in combinatie met vroegpensioen,
and/or accepted by the Stichting Vroegpensioenfonds voor de Metaal-en
Elektrotechnische Industrie, as soon as possible following the Execution Date.
Seller and/or STORK represent and warrant that they will be responsible for all
debts, obligations or liabilities for any pre-pension, early retirement
benefits, SUM, SUMO, or pension plan resulting from not succeeding to have the
TPS Employees and their pension plans legally and fully transferred and accepted
into the CAO in de Metaal-en Elektrotechnische Industrie inzake vervroegd
uittreden 1998/2002, the CAO in de Metaal-en Elektrotechnische Industrie inzake
vervroegd uittreden 1998/2002 in combinatie met vroegpensioen, and/or accepted
by the Stichting Vroegpensioenfonds voor de Metaal-en Elektrotechnische
Industrie. Purchaser will refrain from taking any action that might harm the
position of Seller and/or STORK in this respect or from changing the industrial
profile of TPS.
The Grafimediapension scheme shall not be transferred into another
pension scheme after the Execution Date.
It is the intent of the parties (without compromising Seller's and/or
STORK's obligations set forth herein) that those TPS Employees whose pension
schemes are covered by Stork Pensioenfonds shall remain within the Stork
Pensioenfonds. However, if those pension schemes should be transferred, after
the Execution Date, to another pension fund scheme, Stork and/or Seller
represent and warrant that the transferred pension schemes will be fully funded
by Seller as of such transfer date. Seller and/or Stork also represent and
warrant that there will be no "back service" liabilities or obligations existing
at the moment of said transfer.
Seller and/or Stork represent and warrant that, and shall hold
Purchaser harmless therefrom, all due pension premiums and due debts,
obligations or liabilities arising our of the labour conditions, individual
labour
agreements, the internal company regulations of Seller and TPS and the
collective bargaining agreements applicable to the TPS Employees are paid for or
properly provided for in the Financial Statements.
Seller and/or STORK herewith indemnify and hold Purchaser, TPS and/or
ALPNET harmless against any claim from TPS Employees arising out of the STORK
Winstafhankelijke Uitkering ("S.W.U."). Purchaser shall refrain from any action
that might harm the position of Seller and/or STORK in this respect. For
information purposes, representatives of ALPNET and KMS have met with the trade
unions and offered to have the TPS Employees be eligible for participation in
ALPNET's employee stock option plan immediately following the Execution Date.
5.1.15. Environmental Matters. Neither Stork nor KMS has received
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notice of any violation of, liability under or investigation relating to any
Dutch, provincial or local environmental or pollution law, regulation or
ordinance with respect to assets now or previously owned or operated by KMS that
have been transferred to TPS, specifically including, but not limited to, the
print shop and its related printing business, that could endanger or affect the
continuance or running of the business unit known as Stork TPS and that has not
been fully and finally resolved. TPS has all permits, licenses and other
authorizations which are required under any Dutch, provincial or local
environmental or pollution law, regulation or ordinance with respect to
pollution or protection of the environment ("Environmental Laws") relating to
assets now owned or operated by TPS, including Environmental Laws relating to
actual or threatened emissions, discharges or releases or pollutants,
contaminants or hazardous or toxic materials or wastes ("Pollutants"), have been
obtained and are effective. To the knowledge of Stork and KMS, no conditions
exist on, in or about the properties now leased by TPS or any third-party
properties to which any Pollutants generated by KMS or TPS were sent or released
that could expose TPS to liability under any Environmental Laws, claims by third
parties under Environmental Laws or under common law or the occurrence of costs
to avoid any such liability. or claim. KMS and Stork, jointly and severally,
specifically indemnify Purchaser against any and all costs relating to any
pollution or contamination, including soil pollution or contamination, existing
prior to or on the Execution Date.
5.1.16 No Conflict. The execution of this Agreement will not
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materially violate or breach any provision of KMS' or TPS' articles of
association or any law, regulation, agreement, contract, or commitment to which
TPS or Seller are a party. All contracts to which TPS is a party are in full
force and effect.
5.1.17. Year 2000. Seller represents and warrants that timely steps
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have been taken according to TPS' internal "Plan van Aanpak" to prevent the
occurrence of problems in TPS' activities due to the Y2K -issue and that could
cause problems with deliveries to TPS' customers. Attached hereto as Exhibit
5.1.17 is the most current Y2K status report prepared by Seller in accordance
with its Plan van Aanpak (the "Report").
5.1.18 Authorization and Governmental Approval. Seller is duly
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authorized and empowered to execute this Agreement, and Seller has obtained
consent for the sale of the TPS Shares from all necessary governmental agencies,
customers, and clients, where applicable. If the consent of a client or customer
is still not given on the Execution Date, KMS shall give its full effort to
obtain consent as soon as is possible.
5.1.19 Access to Information. Seller has had access to such
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financial and other information as Seller deems necessary to make a fully-
informed decision as to the sale of the TPS Shares for the ALPNET Shares and has
had the opportunity to verify any such information as Seller deems appropriate
and has had the opportunity to have legal counsel of Seller's choosing.
5.1.20 Investment Purposes. Seller is acquiring the ALPNET Shares
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for its own account for investment only and not with a view to, or for resale in
connection with, any public distribution of such securities in violation of the
U.S. Securities Act of 1933. Seller has, or as of the Execution Date will have,
obtained from the
Purchaser all financial and other information to its satisfaction concerning the
business and operations of the Purchaser. Based on Seller's knowledge and
experience in business and financial matters, and on Seller's intimate knowledge
of TPS and the Purchaser and its operations, Seller represents that it is
capable of evaluating the merits and risks of the investment in Purchaser.
5.1.21 Confidentiality and Non-Disclosure. Seller has previously
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entered into a Confidentiality and Non-Disclosure Agreement, and shall continue
to be bound by the terms of that agreement following the Execution pursuant to
its terms.
5.1.22 Disclosure. No representation or warranty of Seller and/or
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Stork made hereunder or in the Schedules or in any certificate, statement or
other document delivered by or on behalf of Seller hereunder contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained herein or therein not misleading. Copies
of all documents referred to herein or in the Schedules have been delivered or
made available to Purchaser or its advisers, are true, correct and complete
copies thereof, and include all amendments, supplements or modifications thereto
or waivers thereunder.
Except as expressly set forth in this Agreement and the Schedules, or
in the Financial Statements, or in the certificates or other documents delivered
pursuant hereto or specifically disclosed to Purchaser, Seller has no knowledge
of any facts which will or may reasonably be expected to have any material
adverse effect on the value of the assets, properties, business or goodwill of
TPS, or upon any of its prospects or earning power.
5.1.23. No Adverse Change. Since the date of the Audited Financial
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Statements, there has not been with respect to the assets, employees or business
of TPS any material adverse change not specifically disclosed to Purchaser by
Seller that would have a material adverse effect on the continued business and
operation of TPS by Purchaser.
5.1.24. Preferred Vendor Status. For a period of two years from and
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after the Execution Date, Seller and Stork shall give Purchaser "preferred
vendor status" for providing printing, translation, technical documentation and
IT services related to industrial information to Seller and Stork. The work
currently being done by TPS for Seller and/or Stork shall continue uninterrupted
following the Execution. Printing, translation, technical documentation and IT
services related work currently being done by other Stork-related companies or
other external third-party companies for Seller and/or Stork shall continue
uninterrupted following the Execution. For purposes of this Agreement,
"preferred vendor status" shall mean that Seller and Stork are free to use other
vendors only if Purchaser is not able to deliver market conforming services at
recognized market rates.
5.2 Liability of Seller and Stork. The Seller and Stork each represent
-----------------------------
that each of the representations and warranties as set forth in Section 5.1 are
true, complete and accurate at the date of signing of this Agreement, except as
expressly otherwise set forth with respect to any such representations or
warranties.
In the event that any of the representations and warranties prove to be
untrue, incomplete or inaccurate, Seller and Stork, as a sole and only remedy,
shall be liable for and shall indemnify Purchaser, against and hold harmless
from any and all damage, loss, liability, costs and expenses resulting therefrom
and take such actions or make such payments as to restore the situation as it
would have been if all the statements as set forth in Section 5.1 had been true,
complete and accurate.
Claims as regards representations and warranties shall be notified by
Purchaser to Seller in writing.
Seller shall not have any liability with respect to any claim made by
Purchaser in relation to this Agreement and the transaction(s) described therein
made after 18 months from the Execution Date, except for social security and
pension liabilities which specific liabilities shall be continuing liabilities.
The aforementioned liability arising out of the Agreement shall be limited in
any case to the maximum number of ALPNET Shares Seller has acquired pursuant to
Section 1.1 (Purchase Price) and to the ALPNET Anniversary Shares Seller has
acquired pursuant to Section 1.2 (Additional Purchase Price). Seller may
satisfy any claim against it by returning to Purchaser such number of the ALPNET
Shares as shall have a then current fair market value equal to the amount of
such claim. The current fair market value shall be based on the average closing
price for the ALPNET Shares reported by Nasdaq for the 5 trading days
immediately prior to such repayment. Seller shall not be liable for any
indirect and/or consequential damages, unless due to gross negligence or willful
misconduct of Seller.
Purchaser agrees to give notice as soon as practicable to Seller of any
claim, or the commencement of any suit, action or proceeding in respect of which
indemnity may be sought. Purchaser shall make available to Seller all such
information and reasonable assistance as may be requested by Seller to the
extent necessary for the purpose of avoiding or contesting any such claim.
Seller may, and, at the request of Purchaser, shall participate in and control
the defense of any such suit, action or proceeding at its own expense, provided,
however, that if requested by Purchaser, the Seller shall not take any actions
in connection with the defense of any such suit, action or proceeding without
the prior approval of Purchaser. With regard to disputes on taxes and/or VAT,
Seller will have the right to defend its position in direct contact with the
relevant Tax Revenue.
5.3 Liability of Purchaser. Purchaser and ALPNET covenants and agrees with
----------------------
Seller to reimburse and indemnify and hold Seller harmless from, against and in
respect of the following:
5.3.1 Any and all damage, loss, liability, claim or deficiency
incurred by Seller resulting from, or which exists or arises due to, any
untruth, inaccuracy, breach or omission of, from or in, the representations
and warranties made to Seller herein; or any non-fulfillment of any
covenant or agreement of Purchaser and/or ALPNET under this Agreement; or
from any untruth, inaccuracy, breach or omission of, from or in, any
representation or warranty made by Purchaser and/or ALPNET pursuant to this
Agreement; including any liabilities and obligations of Seller that
Purchaser and/or ALPNET expressly assume pursuant to this Agreement; and
5.3.2 Any and all actions, suits, claims, proceedings,
investigations, audits, demands, assessments, fines, judgments, costs and other
expenses (including, without limitation, reasonable audit and legal fees)
incurred by Seller resulting from the circumstances described in Paragraph 5.3.1
above.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF PURCHASER
------------------------------------------------------
6.1 Representations and Warranties of Purchaser. As an inducement to
-------------------------------------------
Seller to enter into and perform this Agreement and in consideration of Seller's
covenants herein contained, on the date hereof and the Execution Date Purchaser
represents, warrants and certifies to Seller as follows:
6.1.1 Capacity. Purchaser is a business entity duly organized,
--------
validly existing, and in good standing under the laws of the Netherlands, with
all requisite power, authority, and permits to carry on its business and to own,
lease, and operate its properties used in connection therewith. Upon its
execution and delivery by Purchaser, this Agreement shall be a valid and legally
binding obligation of Purchaser, enforceable in accordance with its terms.
6.1.2 No Conflicts. The execution, delivery and performance of this
------------
Agreement by Purchaser does not conflict with or violate any other agreement or
commitment by which Purchaser is bound.
6.1.3 Government Approvals. No filing or registration with, or
--------------------
permit, authorization, consent, approval or order of, any governmental or
regulatory authority is required for the execution and delivery of this
Agreement by Purchaser and the consummation by Purchaser of the transactions
contemplated hereby.
6.1.4 ALPNET Current in Filings. As of the Execution Date,
-------------------------
Purchaser's public disclosure filings (Annual Report, Form 10-K, Forms 10-Q,
Proxy Statement) made pursuant to the rules and regulations of the U.S.
Securities and Exchange Commission contain all of the material intended to be
disclosed, and contain a complete representation of the status of ALPNET for the
periods presented.
6.2 Survival of Representations and Warranties. Each of the
------------------------------------------
representations and warranties set forth in this Section 6 shall be true and
correct at and as of the Execution Date, with the same force and effect as
though made at said time, except for the effect of events or changes approved in
writing by Seller. The representations and warranties of Purchaser contained in
this Section 6 shall be deemed continuing representations and warranties and
shall survive the Execution. Purchaser shall indemnify and hold Seller harmless
against any loss or liability, damage, cost, attorneys' fees, disbursements,
court costs, penalties, interest, punitive damages, consequential damages,
fines, taxes, or other loss of any nature resulting from, or arising out of, a
breach of the representations and warranties of Purchaser set forth in this
Section 6.
6.3 Confidentiality and Non-Disclosure. Purchaser has previously entered
----------------------------------
into a Confidentiality and Non-Disclosure Agreement, and Purchaser shall
continue to be bound by the terms of that agreement following the Execution
pursuant to its terms.
SECTION 7. COVENANTS AND AGREEMENTS OF THE PARTIES
--------------------------------------------------
On or before the Execution Date:
7.1 Delivery of Corporate Records, Books, Etc. Seller shall have delivered
-----------------------------------------
to Purchaser all of the items described in Schedule 7.1 attached hereto, all
other books and records of TPS, and all of the information, exhibits and other
items to be delivered by Seller pursuant to this Agreement.
7.2 Loan from Stork to ALPNET. Stork and ALPNET shall have negotiated and
-------------------------
entered into an agreement, in a form substantially similar to Exhibit 7.2
attached hereto, whereby Stork shall loan to ALPNET as of Execution the sum of
One Million Seven Hundred Thousand Dutch Guilders (NLG1,700,000) for a period of
one year.
7.3 Accounting Services. Seller will not provide accounting services for
--------------------
TPS for Purchaser, but will supply the PIUS-O support as mentioned in Section
5.1.11 against payment by TPS or Purchaser of NLG. 5,000 per month. Purchaser
shall also be entitled to use Seller's payroll system through 31 December 1999
and shall reimburse Seller for the cost of using such payroll system against
normal conditions.
7.4 Use of name. Seller will allow Purchaser to use the Stork TPS name
------------
for a period of 90 days following the Execution Date as necessary to accomplish
the transition of the business to ALPNET. Ninety days following the Execution
Date, Purchaser and TPS shall refrain from any use of the name "Stork".
7.5 Tax on Lease. Seller will opt for taxation with VAT on the lease of
------------
the TPS current facility with Purchaser. Seller will charge TPS for the VAT on
the lease rent.
7.6 Articles of Association of TPS. KMS is in the process of having the
------------------------------
Articles of Association of TPS amended, which amendment contains the addition of
a purpose clause of TPS. This is being done in order to facilitate the transfer
of TPS from "Bedrijfsvereniging 25" to "Bedrijfsvereniging 10".
7.7 "2:403-verklaring". STORK shall withdraw the "art. 2:403 BW-
------------------
verklaring" as soon as possible after the Execution Date. Purchaser shall
indemnify and hold STORK harmless against any claim arising from the
aforementioned "verklaring."
7.8 Current Account with KMS. Purchaser represents and warrants that the
-------------------------
current account of TPS owed to KMS, being NLG 1,220,000 at 30 June 1999 (the
"Current Account"), shall be paid back in full to KMS. STORK shall set off the
Current Account amount against the amount of the loan being made
contemporaneously by STORK to ALPNET pursuant to Section 7.2 above. The parties
shall settle the final payments to be made with respect to the actual amount of
the Current Account as of the Execution Date within one month after the
Execution Date.
7.9 Insurance. With respect to the insurance policies of TPS covered
---------
through STORK (master policies), which should be terminated after the Execution
Date and for which Purchaser should obtain coverage individually, the parties
agree that a transfer of those insurance's will be arranged within 2 months
after the Execution Date.
SECTION 8. COVENANT NOT TO COMPETE
----------------------------------
The parties recognize and agree that ALPNET has agreed to pay to Seller a
substantial consideration for TPS and its business, including without
limitation, the business conducted by Stork TPS and its customers, customer
relations and goodwill, and that it is the intent of Seller to sell and to
transfer to ALPNET all such rights, interests and benefits therein by means of
this transaction, and to discontinue its activities as the same compete with the
business of TPS.
In consideration of the ALPNET Shares to be paid by ALPNET to Seller and
the promises and covenants herein contained, Seller and its parent company Stork
hereby agree as follows:
8.1 Non-Competition. Not to be engaged or compete either directly or
---------------
indirectly, through any affiliate or otherwise, in the same business as TPS at
any time after the Execution Date for a period of three (3) years, not
including activities already carried out by any of the Stork companies at the
Execution Date.
8.2 Employees. Not to solicit or take away, or attempt to solicit, take
---------
away, or employ any employee(s) of TPS, either for Seller's own benefit or for
the benefit of any other person or entity without the express, written consent
of ALPNET for a period of three (3) years after the Execution Date.
SECTION 9. TRANSACTIONS FOLLOWING EXECUTION
-------------------------------------------
9.1 Post-Execution Financial Statements. Within 30 calendar days after
-----------------------------------
the Execution Date, TPS shall deliver to Purchaser the profit and loss account
and the balance sheet of TPS as of the Execution Date, certified to be accurate
by Seller (the "Post-Execution Financial Statements"). The Post-Execution
Financial Statements will have been prepared in all material respects in
accordance with Dutch generally accepted accounting principles applied on a
consistent basis throughout the period involved, and will fairly present the
financial condition and the results of operation of TPS as of the dates thereof.
The Post-Execution Financial Statements shall fairly present the financial
condition of TPS and results of operations of TPS for the periods reflected
therein, and will be consistent with the books and records of TPS, subject to
adjustments consisting of normal recurring accruals which are customarily
recorded by TPS. All accounts receivable of TPS that are reflected on the
balance sheet included in the
Post-Execution Financial Statements will represent, and the accounts receivable
to be reflected on the post-Execution balance sheet shall represent, valid
obligations arising from sales actually made or services actually performed in
the ordinary course of business.
9.2 SEC Filings. Within fifteen (15) days of the Execution Date, ALPNET
-----------
must file with the U.S. Securities and Exchange Commission a Form 8-K disclosing
the consummation of the transaction contemplated by this Agreement. Within
sixty (60) days of the Execution Date, ALPNET must file with the U.S. Securities
and Exchange Commission an amended Form 8-K which must include the audited
financial statements of TPS. Stork and Seller agree that they will each
cooperate with ALPNET in every way necessary in order to allow ALPNET to meet
these filing deadlines.
9.3 Nomination to Board of Directors. As soon after Execution as is
--------------------------------
reasonably possible, Purchaser agrees to nominate and recommend that a nominee
designated by Seller serve as a director on the Board of Directors of ALPNET, to
represent the interest of STORK and participate in the strategic planning and
direction of ALPNET. The Stork nominee designated by Seller and elected to the
ALPNET Board of Directors shall be nominated and have to stand for re-election
at ALPNET's first annual shareholders' meeting scheduled after the Execution.
SECTION 10. MISCELLANEOUS PROVISIONS
-------------------------------------
10.1 Rescission. The parties expressly renounce their right to rescind
----------
(ontbinden) this Agreement.
10.2 Binding Agreement. This Agreement shall be binding upon and shall
-----------------
inure to the benefit of the successors and assigns of the respective parties
hereto.
10.3 Survival of Representations and Warranties. The respective
------------------------------------------
obligations of Purchaser and Seller hereunder and all representations and
warranties made in this Agreement, all exhibits hereto, and all certificates and
documents delivered pursuant hereto, shall survive the Execution.
10.4 Captions. The headings used in this Agreement are inserted for
--------
reference purposes only and shall not be deemed to define, limit, extend,
describe, or affect in any way the meaning, scope or interpretation of any of
the terms or provisions of this Agreement or the intent hereof.
10.5 Counterparts. This Agreement may be signed in any number of
------------
counterparts with the same effect as if the signatures upon any counterpart were
upon the same instrument. All signed counterparts shall be deemed to be one
original.
10.6 Severability. The provisions of this Agreement are severable, and
------------
should any provision hereof be void, voidable, unenforceable or invalid, such
void, voidable, unenforceable or invalid provision shall not affect the other
provisions of this Agreement.
10.7 Waiver of Breach. Any waiver by any party of any breach of any kind
----------------
or character whatsoever by the other, whether such be direct or implied, shall
not be construed as a continuing waiver of, or consent to, any subsequent breach
of this Agreement.
10.8 Cumulative Remedies. The rights and remedies of the parties hereto
-------------------
shall be construed cumulatively, and none of such rights and remedies shall be
exclusive of, or in lieu or limitation of, any other right, remedy or priority
allowed by law, unless otherwise stated in this Agreement.
10.9 Governing Version of Agreement. If requested by Seller, ALPNET shall
------------------------------
provide TPS and Seller with a Dutch version of this Agreement. However, the
English version of this Agreement shall be the version of the agreement binding
upon the parties hereto.
10.10 Amendment. This Agreement may not be modified except by an
---------
instrument in writing signed by the parties hereto.
10.11 Interpretation. This Agreement shall be interpreted, construed and
--------------
enforced according to the substantive laws of The Netherlands, in force at
Execution. Any controversy or claim arising between the parties including any
controversy or claim arising out of or relating to this Agreement shall be
determined by the competent court in Amsterdam, the Netherlands. The language
to be used in the proceedings shall be Dutch.
10.12 Notice. All notices, requests, demands and other communications
------
hereunder shall be deemed to have been duly given when such notice shall have
been either (i) duly mailed by registered or certified, first-class mail, return
receipt requested, postage prepaid, or (ii) transmitted by hand-delivery,
telegram, telex, telecopier or facsimile transmission, to the party entitled to
receive the same at the address indicated below, or at such other address as
such party shall have specified by written notice to the other party hereto
given in accordance herewith:
ALPNET, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx #000
Xxxx Xxxx Xxxx, XX 00000-0000, XXX
STORK N.V.
Xxxxxxxxxxxxxxxxxxxx 0
0000 XX Xxxxxxx
Xxx Xxxxxxxxxxx
Koninklijke Machinefabriek Stork X.X.
Xxxxxxxxxxxxxx 0
0000 Xxxxxxx
The Netherlands
10.13 Brokers. Seller represents and warrants to Purchaser that no broker
-------
or finder acted for it or is entitled to any fee or commission in respect of the
transactions contemplated hereby. Seller shall indemnify and hold Purchaser
harmless in respect of any breach of the foregoing representation and warranty.
Purchaser represents and warrants to Seller that no broker or finder acted for
Purchaser or is entitled to any fee or commission in respect of the transactions
contemplated hereby. Purchaser shall indemnify and hold Seller harmless in
respect of any breach of the foregoing representation and warranty.
10.14 Assignment. Purchaser, in its absolute discretion, may freely
----------
assign its rights, and delegate its duties, under this Agreement to any existing
or future affiliate of ALPNET, including, without limitation, any partnership,
corporation or other entity owned or substantially controlled by Purchaser,
provided that no such assignment shall relieve Purchaser of any performance of
its obligations hereunder.
10.15 Voting Rights. It is understood and agreed that until the Execution
-------------
Date, all voting rights applicable to the TPS Shares shall belong to Seller.
10.16 Orderly Transition. Seller shall before and after the Execution
------------------
Date (a) cooperate fully with Purchaser to provide a smooth and orderly
transition in the ownership and business operations of TPS, including but not
limited to providing accounting and administrative support for 90 days after
Execution, and (b) cooperate fully and furnish information requested by
Purchaser in connection with any dispute, claim or litigation involving events
occurring prior to the Execution.
10.17 Announcements. A party will not without the written consent of the
-------------
other parties, make any announcements about the contents of the negotiations or
the contents of this Agreement with Exhibits and Schedules, save to the extent
to which they may be required to do so by law.
10.18 Costs. Seller and Purchaser will bear their own costs and expenses
-----
in relation to the contemplated transactions.
10.19 Attorneys' Fees. In the event any action or proceeding is brought
---------------
by [any/either] party to enforce the provisions of this Agreement, the
prevailing party shall be entitled to recover its costs and reasonable
attorneys' fees, whether such sums are expended with or without suit, at trial
or on appeal.
DATED effective the day, month and year first above written.
PURCHASER: SELLER:
ALPNET NEDERLAND B.V. Koninklijke Machinefabriek Stork B.V.
________________________ ____________________________________
By:_____________________ By:_________________________________
Its:____________________ Its:________________________________
ALPNET, Inc., a Utah corporation STORK N.V.
__________________________ ____________________________________
By:_______________________ By:_________________________________
Its:______________________ Its:________________________________
TPS B.V.
____________________________________
By: ________________________________
Its: _______________________________
INDEX TO SCHEDULES AND EXHIBITS
to Stock Purchase Agreement
(Dated 30 July 1999)
SCHEDULES
---------
Schedule 5.1.5 Disclosed Liabilities
Schedule 5.1.7 Intellectual Property
Schedule 5.1.12 Litigation
Schedule 5.1.13 Taxes and Governmental Compliance
Schedule 5.1.14 Employment- and Labor-related Obligations and Liabilities
Schedule 7.1 Books and Records
EXHIBITS
--------
Exhibit 3.3 Transfer/Purchase Agreement between KMS and TPS
Exhibit 5.1.4 Financial Statements
Exhibit 5.1.9(A) Facilities Lease between Seller and Purchaser
Exhibit 5.1.9(B) Boxmeer Facilities Lease
Exhibit 5.1.11 PIUS-O use
Exhibit 5.1.14(A) List of Employees and Benefits: Employees Transferred from
KMS BV to TPS BV
Exhibit 5.1.14(B) List of Employees and Benefits: Existing Employees of TPS BV
Exhibit 5.1.14(C) List of Temporary Employees Currently Working for TPS
Exhibit 5.1.17 Xxxxxxx X0X Status Report
Exhibit 7.2 Loan Agreement
The Schedules and Exhibits are not being filed pursuant to Item 601(b)(2) of
Reg. S-K. The Company agrees to furnish a copy of any omitted Schedule or
Exhibit to the Commission upon request.
