ASSET PURCHASE AGREEMENT
BY AND BETWEEN
BENCHMARK ELECTRONICS AB
AND
FLEXTRONICS INTERNATIONAL SWEDEN AB
EXHIBITS AND SCHEDULES
Schedule 1.02 Calculation of Preliminary Purchase Price
Schedule 3.0 List of Documents Provided
Exhibit A-1 - Personal Property
Exhibit A-2 - Facility Leases
Exhibit B - Assumed Contracts
Exhibit C - Licenses
Exhibit D - List of Personal Property
Exhibit E - List of Acquired Inventory
Exhibit F - List of Employees and Employee Benefits; Employee Liabilities
Exhibit G - Home Computer Program
Exhibit H - Assumed Purchase Orders
Exhibit I - 12 Month Demand
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made as of this 5th day of
July 2000, by and between BENCHMARK ELECTRONICS AB, a Swedish corporation
("Seller"), and FLEXTRONICS INTERNATIONAL SWEDEN AB, a Swedish corporation
("Purchaser"). Unless otherwise provided herein, all defined terms used in this
Agreement are defined at Article X hereof.
BACKGROUND
Seller desires to sell, and Purchaser desires to purchase, certain of
Seller's assets upon the terms and subject to the conditions set forth herein.
IN CONSIDERATION OF the foregoing, the mutual covenants, agreements,
representations and warranties contained in this Agreement, $10.00 in hand paid,
and other good and valuable consideration, the receipt, sufficiency and adequacy
of which hereby are acknowledged by each party hereto, the parties agree as
follows:
ARTICLE I
1.01 PURCHASE OF ASSETS. Subject to the terms and conditions of this
Agreement, at the Closing, Seller shall sell, convey and assign to Purchaser,
and Purchaser shall purchase and accept from Seller, all of the Purchased
Assets, free and clear of all Liens.
1.02 PURCHASE PRICE. The purchase price of the Purchased Assets
("Purchase Price") shall be their net book value as of the Closing Date valued
in accordance with Swedish GAAP. The Purchase Price shall be calculated as
follows:
(i) the book value of the Acquired Inventory; PLUS
(ii) the book value of the Personal Property; MINUS
(iii) the book value of the Assumed Liabilities.
Purchaser shall pay to Seller at Closing SEK 140,698,751 (the "Preliminary
Purchase Price" as calculated on Schedule 1.02) by wire transfer of cash or
other immediately available funds. The Preliminary Purchase Price will be
subject to a post-Closing adjustment as set forth in Section 1.04 below. The
Preliminary Purchase Price will be calculated as: the value of the Acquired
Inventory as of June 16, 2000 plus the projected value at closing of the
Personal Property minus the projected value at closing of the Assumed
Liabilities.
Purchaser will make the above-mentioned payment to Seller in immediately
available funds, to the financial institution designated by Seller. Payment
shall be made on the Closing Date.
1.03 PRORATIONS AND CERTAIN PAYMENTS. It is the intent of both Parties
that Seller shall be
liable for all costs incurred prior to the Closing Date and Purchaser shall be
liable for all costs incurred on or after the Closing Date. Prorations relating
to the Purchased Assets will be made as of the Closing Date, with Seller liable
to the extent such items relate to any time period prior to the Closing Date,
and Purchaser liable to the extent such items relate to time periods commencing
on or after the Closing Date. Prorations shall include, but are not limited to,
the amount of sewer rents and charges for water, telephone, electricity and
other utilities and fuel.
The net amount of all such prorations will be settled and paid on the Closing
Date. If the amount of any of the items to be prorated under this Section is not
known at the Closing, the proration shall be made based upon the amount of the
most recent cost of such item to Seller, with post-Closing adjustments to be
made in accordance with Section 1.04(d).
1.04 POST-CLOSING ADJUSTMENTS. (a) Within 14 days after the Closing Date,
Seller shall prepare and deliver to Purchaser a draft Net Asset Statement (the
"Draft Closing Net Asset Statement") for Seller's business as of close of
business on the Closing Date and in accordance with Swedish GAAP.
(b) Purchaser shall review the Draft Closing Net Asset Statement (and
may, at its own expense, have its auditors audit the same). If Purchaser has any
objections to the Draft Closing Net Asset Statement, Purchaser shall deliver a
detailed statement describing its objections to Seller no later than six weeks
after the date Purchaser received the Draft Closing Net Asset Statement from
Seller. Purchaser and Seller will use reasonable efforts to resolve any such
objections themselves, and to arrive at a final version of the Draft Closing Net
Asset Statement (the "Final Closing Net Asset Statement"). If the parties cannot
so agree within 30 days after Seller has received the statement of objections,
Purchaser and Seller will select an independent accountant mutually acceptable
to them to resolve any remaining objections. If Purchaser and Seller are unable
to agree on the choice of accountant within 14 days after either Purchaser or
Seller has proposed an accountant to the other, the President of the Stockholm
Chamber of Commerce shall at the request of either party make the choice. The
appointed accountant shall act as an expert not as an arbitrator. All costs
incurred shall be borne by Seller and Purchaser in equal shares. The
determination of the appointed accountant will be set forth in writing and will
be conclusive and binding upon the Parties, and shall serve as the Final Closing
Net Asset Statement.
(c) The Preliminary Purchase Price shall be adjusted based on the Final
Closing Net Asset Statement (the "Adjusted Purchase Price"). If the Adjusted
Purchase Price exceeds the Preliminary Purchase Price by an amount greater than
SEK 100,000, Purchaser will pay to Seller an amount equal to the difference
between the Adjusted Purchase Price and the Preliminary Purchase Price plus
interest thereon at XXXXXX plus 1.5 % from the Closing Date. If the Adjusted
Purchase Price is less than the Preliminary Purchase Price, by an amount greater
than SEK 100,000, Seller shall repay the difference plus interest thereon at
XXXXXX plus 1.5% from the Closing Date.
(d) Post-Closing adjustments of the prorations under Section 1.03 shall
be made once the actual prorations are determinable, but not later than six
weeks after the date the Purchaser
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received the Draft Closing Net Asset Statement. Not later than such date, the
party owing any sum based upon such actual prorations shall promptly pay such
sum owed to the party entitled thereto. If the parties are unable to agree on
the final prorations by such date, the final prorations shall be determined by
an independent accountant appointed in accordance with Section 1.04(b).
(e) If Seller does not fulfil its obligation to prepare and deliver to
Purchaser the Draft Closing Net Asset Statement within 14 days after the Closing
Date, Purchaser shall be entitled to produce such Draft Closing Net Asset
Statement, and deliver it to Seller. If Seller has any objections to the Draft
Closing Net Asset Statement, Seller shall deliver a detailed statement
describing its objections to Purchaser no later than six weeks after the date
Seller received the Draft Closing Net Asset Statement from Purchaser. Purchaser
and Seller will use reasonable efforts to resolve any such objections
themselves, and to arrive at a final version of the Draft Closing Net Asset
Statement (the "Final Closing Net Asset Statement"). If the parties cannot so
agree within 30 days after Purchaser has received the statement of objections,
Purchaser and Seller will select an independent accountant mutually acceptable
to them to resolve any remaining objections. If Purchaser and Seller are unable
to agree on the choice of accountant within 14 days after either Purchaser or
Seller has proposed an accountant to the other, the President of the Stockholm
Chamber of Commerce shall at the request of either party make the choice. The
appointed accountant shall act as an expert not as an arbitrator. All costs
incurred shall be borne by Seller and Purchaser in equal shares. The
determination of the appointed accountant will be set forth in writing and will
be conclusive and binding upon the Parties, and shall serve as the Final Closing
Net Asset Statement.
ARTICLE II
ASSUMPTION OF LIABILITIES
2.01 ASSUMPTION OF THE LIABILITIES. Purchaser agrees to assume from
Seller the Assumed Liabilities. Seller agrees to pay and discharge all of its
Liabilities other than the Assumed Liabilities, as and when due.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF SELLER
Seller hereby represents and warrants to Purchaser that the statements
contained in this Article are correct and complete as of the date of this
Agreement, and will be correct and complete as of the Closing Date except as set
forth in the disclosure schedule accompanying this Agreement and initialed by
the Parties (Schedule 3.0).
3.01 AUTHORITY AND BINDING EFFECT. Seller has the corporate power and
authority necessary to enter into and perform its obligations under this
Agreement and the Other Agreements and to consummate the transactions
contemplated hereby and thereby; and the execution, delivery
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and performance of this Agreement and the Other Agreements by it have been, or
as of the Closing Date will have been approved by all necessary action of its
board of directors and shareholders. This Agreement constitutes, and when
executed and delivered, the Other Agreements will constitute Seller's legal,
valid and binding obligations, enforceable against Seller in accordance with the
terms hereof and thereof
3.02 VALIDITY OF CONTEMPLATED TRANSACTIONS, ETC. The execution, delivery
and performance of this Agreement and the Other Agreements by Seller and the
consummation of the transactions contemplated hereby or thereby, will not (i)
violate any provision of its charter or bylaws, or any Law or Order relating to
Seller, (ii) to Seller's Knowledge, result in a Default under, or require the
consent or approval of any party to, any Contract to which it is a party, or
(iii) to Seller's Knowledge result in the creation or imposition of any Lien on
any of its properties.
3.03 TITLE TO ASSETS; EQUIPMENT; CONDITION. Seller has good, valid and
marketable title to all of the Purchased Assets (other than the assets which are
the subject of the Facility Leases or Personal Property/Equipment Leases), free
and clear of any and all Liens. For the avoidance of misunderstanding, Seller
shall remove any floating charge over the Purchased Assets not later than at
Closing. No agreement concerning or restricting the sale of the Purchased Assets
is in effect, and no other Person has any right or option to acquire the
Purchased Assets.
3.04 LITIGATION AND CLAIMS. There is no Litigation pending or threatened
against Seller relating to the Purchased Assets and/or the Assumed Liabilities,
which if determined adversely to Seller would, individually or in the aggregate,
(i) have a material adverse effect upon the Purchased Assets and/or the Assumed
Liabilities, (ii) create a Lien upon the Purchased Assets, or (iii) prevent the
transactions contemplated hereby.
3.05 EMPLOYEES; BENEFIT PLANS. Seller represents and warrants that all
the employees are listed in Exhibit F and that they are not as of the Closing
Date granted salaries, pensions, stock options or any other employment benefits
on terms and conditions other than those stated in said Exhibit. Seller further
represents that it has fulfilled its information and negotiation obligations
under the Swedish Democracy at Work Act (SFS 1976:580). Seller has made all
required contributions to all Employee Benefit Plans. All Employee Benefit Plans
are in compliance with all applicable Laws and collective bargaining agreements;
and all reports and returns required to have been made or filed in connection
therewith have been timely made or filed. Seller has delivered to Purchaser all
material documents regarding its Employee Benefit Plans.
3.06 HOME COMPUTER PROGRAM. Exhibit G sets out a complete and accurate
description of Seller's home computer program for employees. Exhibit G
completely and accurately describes all Seller's costs arising out of or in
connection with the home computer program and following Closing. Purchaser's
costs for the Home Computer Program will not exceed the costs set forth in
Exhibit G.
3.07 SOFTWARE. A complete and accurate description of all computer
software programs
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or applications (in source code and/or object code form) included in the
Purchased Assets is set forth in Exhibit C. Seller owns, or is licensed or
otherwise possesses legally enforceable rights to use all such computer software
programs or applications, except as set forth in Exhibit C.
3.08 BROKERS AND FINDERS. No finder or any agent, broker or other Person
acting pursuant to the authority of Seller is entitled to any commission or
finder's fee in connection with the transactions contemplated by this Agreement.
3.09 ENVIRONMENTAL. During the term of each Facility Lease, Seller has
not, to its Knowledge, violated any Laws, left any residue, or created any
damage or nuisance to health or the environment (which may affect the use of the
property which is the subject of each Facility Lease) for which the current
owner is or may be responsible.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller that the statements
contained in this Article are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date except as set
forth in the Schedule:
4.01 AUTHORITY AND BINDING EFFECT ON PURCHASER. Purchaser has the
corporate power and authority necessary to enter into and perform its
obligations under this Agreement and the Other Agreements and to consummate the
transactions contemplated hereby and thereby; and the execution, delivery and
performance of this Agreement and the Other Agreements by it have been, or as of
the Closing Date will have been approved by all necessary action of its board of
directors and shareholders. This Agreement constitutes, and when executed and
delivered, the Other Agreements will constitute Purchaser's legal, valid and
binding obligations, enforceable against Purchaser in accordance with the terms
hereof and thereof.
4.02 VALIDITY OF CONTEMPLATED TRANSACTIONS. The execution, delivery and
performance of this Agreement and the Other Agreements by Purchaser and the
consummation of the transactions contemplated hereby or thereby, will not (i)
violate any provision of its charter or by-laws, or any Law or Order relating to
Purchaser, (ii) to Purchaser's Knowledge, result in a Default under, or, require
the consent or approval of any party to, any Contract to which it is a party, or
(iii) to Purchaser's Knowledge, result in the creation or imposition of any Lien
on any of its properties.
4.03 BROKERS AND FINDERS. No finder or any agent, broker or other Person
acting pursuant to Purchaser's authority is entitled to any commission or
finder's fee in connection with the transactions contemplated by this Agreement.
4.04 DUE DILIGENCE. Seller has provided Purchaser with certain
information, as listed in Schedule 3.0 in order for Purchaser to fulfill its due
diligence. Purchaser is satisfied with the material received from Seller,
requires no further material from Seller in order to complete its due diligence,
and is fully satisfied with the results of its due diligence. All of the
Purchased Assets are
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being purchased "as is," and except as set forth herein, Seller has not given
any representations or warranties regarding the Purchased Assets.
ARTICLE V
COVENANTS AND ADDITIONAL AGREEMENTS OF
SELLER AND PURCHASER
5.01 OPERATION OF BUSINESS PENDING CLOSING. Prior to the Closing Date,
except with the prior written consent of Purchaser and except as may be
necessary to effect the transactions contemplated in this Agreement, Seller
shall (i) conduct its business in substantially the same manner as presently
being conducted and refrain from entering into any transaction or Contract,
other than in the ordinary course of business consistent with past practice, or
making any capital expenditure or disposal of fixed assets in excess of SEK
100,000 without Purchaser's prior written approval; (ii) notify Purchaser of any
unexpected emergency or other change in the normal course of the operation of
the Purchased Assets, and of any Litigation (or communications indicating that
the same may be contemplated), potentially affecting the Purchased Assets or the
operation of business in Katrineholm after the Closing Date; and (iii) promptly
notify Purchaser of any material adverse change with respect to the Purchased
Assets, or any condition or event which threatens to result in such a material
adverse change. Notwithstanding the foregoing, nothing shall prevent Seller from
using and/or disposing of the Purchased Assets in its normal course of business.
5.02 RIGHT OF INSPECTION; ACCESS. In order to allow Purchaser to conduct
its due diligence investigation, including, without limitation, environmental
due diligence, Seller shall give to Purchaser during normal working hours, full
and free access to all of the Purchased Assets and all financial, legal and
other information concerning the Purchased Assets.
5.03 CONFIDENTIALITY; PUBLICITY. In the event the transactions
contemplated by this Agreement are not consummated, each party hereto will (i)
promptly return to the party providing them all records and information provided
pursuant to this Agreement, (ii) treat such records and other information as
confidential, and (iii) not use directly or indirectly such records and
information for its own benefit or disclose the same to any third party. The
obligations of confidentiality hereunder shall continue for a period of five
years from the date of this Agreement; provided that, with respect to any item
provided hereunder which constitutes a trade secret under applicable Law, such
period of confidentiality shall continue for so long as such item constitutes a
trade secret under applicable Law. Notwithstanding the foregoing, nothing
contained herein shall prohibit the disclosure of information which is in the
public domain, has been disclosed by any Third Party not under an obligation not
to disclose the same, was independently developed by a party without reference
to confidential information, or is required to be disclosed by Law. Each party
agrees that it will not make any announcement or discuss the transactions
contemplated herein with any third party, other than with its accountants,
attorneys or similar representatives, or parties from whom consent must be
obtained without the prior consent of the other parties, unless its
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counsel advises that such announcement or discussion is required by Law, in
which case the consent of the other parties shall not be required.
5.04 EMPLOYEES. Purchaser shall offer employment to each of Seller's
employees, as listed in Exhibit F, on substantially the same terms as the
employees are currently being employed. Purchaser warrants that all employees
have notified it of their intention to accept employment with Purchaser; in the
event any of Seller's employees do not accept employment with Purchaser,
Purchaser agrees to pay (or, if such amounts have been paid by Seller, reimburse
Seller for) all employment-related liabilities of such employees.
5.05 SCHEDULES. Seller shall have the continuing obligation at all times
prior to Closing to supplement the Schedules contained in Article III hereof
with respect to any matter arising after the date hereof and prior to Closing.
5.06 CONSENTS AND APPROVALS. Seller shall, prior to Closing, obtain all
waivers, consents and approvals of, and provide all notices to, all Persons
whose waiver, consent or approval is required in order to consummate the
transactions contemplated by this Agreement.
5.07 CONSUMMATION OF TRANSACTIONS; CLOSING CONDITIONS. Subject to the
terms and conditions herein provided, each of the parties hereto agrees to take,
or cause to be taken, all commercially reasonable actions to consummate the
transactions contemplated by this Agreement and to satisfy the conditions
precedent to Closing set forth in Articles VI and VII of this Agreement.
5.08 EXPENSES. Each party hereto will pay its own expenses (including
attorneys' fees), except as may be otherwise provided herein.
5.09 FURTHER ASSURANCES. At any time and from time to time after the
Closing, Seller shall, at the request of Purchaser and at Purchaser's sole cost
and expense, take any and all actions and execute and deliver such documents as
may be necessary or reasonable to put Purchaser in actual possession and
operating control of the Purchased Assets, to confirm the title of the Purchased
Assets to Purchaser, to assist Purchaser in exercising rights relating thereto,
or to otherwise effectuate or consummate any of the transactions contemplated
hereby.
5.10 VALUATION OF ACQUIRED INVENTORY. Within twenty-four (24) hours
subsequent to the Closing Date, the parties shall mutually count and appraise
the Acquired Inventory of Seller for the purpose of ascertaining the Purchase
Price. Acquired Inventory not purchased in SEK shall be valued at the fixing
rate (as published by Svenska Handelsbanken as of Closing) between the currency
in which such inventory was purchased and SEK as of date this Agreement is
executed.
5.11 COMPETITION COMMITTEE FILING. In the event that a pre-acquisition
filing is required
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by the Competition Committee, Purchaser hereto shall promptly file with
Competition Committee the notifications and reports required to be filed or
requested by the Competition Committee. Seller shall furnish to Purchaser such
information as may be necessary to enable such filings.
5.12 IMPLEMENTATION. Each party undertakes to take all steps to implement
this Agreement and to sign, or to have signed from time to time all other
documents necessary or appropriate in order to fulfill the object of this
Agreement and give full effect to all of the provisions contained herein.
5.13 TRANSFER AND ASSIGNMENT. The parties will take all reasonable
actions to obtain such consents as may be required under contract or applicable
law in order to carry out a legal transfer of any of the Assumed Contracts,
Assumed Purchase Orders, and sold, transferred or assigned hereunder and to
consummate all other transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, the parties shall jointly take action
to obtain all necessary approval, including the approval from the landlord for
the termination of Seller's Facility Leases as included in Exhibit A-2 and for
the entering into new lease agreements with the Purchaser regarding the same
facilities as described in Exhibit A-2.
For nine weeks after the Closing Date, Seller will in good faith provide the
Purchaser with any allocations of material that Benchmark Electronics, Inc. or
its subsidiaries have negotiated with suppliers. The parties shall also jointly
write to all affected suppliers and request consent to transfer of the Assumed
Purchase Orders.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
Purchaser's obligation to consummate the transactions contemplated by
this Agreement shall be subject to the satisfaction, on or before the Closing
Date, of each of the following conditions, any of which may be waived, in whole
or in part, by Purchaser for purposes of consummating such transactions, but
without prejudice to any other right or remedy which Purchaser may have
hereunder as a result of any misrepresentation by, or breach of, any agreement,
covenant or warranty of Seller contained in this Agreement or the Other
Agreements:
6.01 NO MATERIAL ADVERSE CHANGE. There shall not have been any material
adverse change with respect to the Purchased Assets, or any condition or event,
which threatens such a material adverse change.
6.02 APPROVAL OF LEGAL MATTERS. There shall have been taken all actions
and proceedings, there shall have been received all consents, and there shall
have been executed and delivered all instruments and documents deemed reasonably
necessary or appropriate by Purchaser to effectuate this Agreement or to
consummate the transactions contemplated hereby.
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6.03 CONVEYANCE OF PURCHASED ASSETS. There shall have been conveyed and
transferred to Purchaser all of the Purchased Assets (including the Licenses),
free and clear of all Liens. In connection with such transfers, Purchaser shall
have received from Seller an executed xxxx of sale and assignment in form, scope
and substance reasonably satisfactory to Purchaser conveying the Purchased
Assets to Purchaser.
6.04 DUE DILIGENCE REVIEW. Purchaser shall have been satisfied with its
review of the Schedules provided by each Seller pursuant to this Agreement and
shall have been satisfied with its review of the Purchased Assets and Seller's
books and records related thereto.
6.05 FACILITY LEASES; CONSENT OF LANDLORD.
(a) Purchaser shall be satisfied with the terms and conditions of
the new lease agreements as described in section (b)(2) below.
(b) (1) Seller shall have terminated its Facility Leases as
described in Exhibit A-2.
(2) The owner(s) of the property which is the subject of the
Facility Leases and the Purchaser shall have entered into new lease agreements
regarding such facilities and the owner(s) of said property shall have executed
an estoppel certificate certifying as to (i) there being no other agreements
between Seller and such landlord with respect to the Facility Leases; (ii) the
rents and charges payable by Seller under the Facility Leases and the date to
which same have been paid; and (iii) whether there are, to the Knowledge of said
landlord, any Defaults thereunder, and, if so, specifying the nature thereof.
6.06 COMPETITION COMMITTEE APPROVAL. The Competition Committee shall have
approved this Transaction.
6.07 DEMOCRACY AT WORK ACT. Purchaser shall be satisfied that Seller has
complied with its obligations under the Democracy at Work Act.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
Seller's obligation to consummate the transactions contemplated by this
Agreement and the Other Agreements shall be subject to the satisfaction, on or
before the Closing Date, of each of the following conditions, any of which may
be waived, in whole or in part, by Seller for purposes of consummating such
transactions, but without prejudice to any other right or remedy which Seller
may have hereunder as a result of any misrepresentation by, or breach of any
agreement, covenant or warranty of Purchaser contained in this Agreement or the
Other Agreements:
7.01 APPROVAL OF LEGAL MATTERS. There shall have been taken all actions
and proceedings
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and there shall have been executed and delivered all instruments and documents
reasonably deemed necessary or appropriate by Seller to effectuate this
Agreement and to consummate the transactions contemplated hereby.
7.02 ASSUMED LIABILITIES. Purchaser shall have assumed all Assumed
Liabilities.
7.03 PAYMENT OF PRELIMINARY PURCHASE PRICE. The Preliminary Purchase
Price shall have been paid to Seller in the manner described in Section 1.02
hereof.
7.04 COMPETITION COMMITTEE APPROVAL. The Competition Committee shall have
approved this Transaction.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES AND INDEMNIFICATION
8.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by Seller in Article III of this Agreement shall survive the
Closing (unless the Purchaser knew or had reason to know of any
misrepresentation or breach of warranty at the time of Closing) and continue in
full force and effect for a period of eighteen (18) months thereafter. The
representations and warranties made by Purchaser in Article IV of this Agreement
shall survive the Closing (unless Seller knew or had reason to know of any
misrepresentation or breach of warranty at the time of Closing) and continue in
full force and effect for a period of eighteen (18) months thereafter.
8.02 INDEMNIFICATION. In the event either party (the "Indemnifying
Party") breaches any of the representations or warranties contained in this
Agreement or fails to perform any covenant or agreement contained herein, and,
if there is an applicable survival period pursuant to Section 8.01 above,
provided that the other party (the "Indemnified Party") makes a written claim
for indemnification against the Indemnifying Party within such survival period,
then Indemnifying Party agrees to indemnify the Indemnified Party from and
against all Losses the Indemnified Party shall suffer through and after the date
of the claim for indemnification (but EXCLUDING any Losses the Indemnified Party
shall suffer after the end of any applicable survival period) proximately caused
by the breach.
8.03 EXCLUSIVE REMEDY. The parties acknowledge and agree that the
foregoing indemnification provisions in this Article VIII shall be the exclusive
remedy of the Purchaser and Seller with respect to the transactions contemplated
by this Agreement.
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ARTICLE IX
TERMINATION
9.01 METHOD OF TERMINATION. This Agreement and the transactions
contemplated by it may be terminated at any time prior to the Closing Date:
(i) By the mutual consent of the parties hereto at any time;
(ii) By Seller at any time after December 31, 2000, if any of the
conditions set forth in Article VII hereof have not been fulfilled or waived,
unless such fulfillment has been frustrated or made impossible by any act or
failure to act by Seller;
(iii) By Purchaser at any time after December 31, 2000, if any of
the conditions set forth in Article VI hereof have not been fulfilled or waived,
unless such fulfillment has been frustrated or made impossible by any act or
failure to act of Purchaser;
9.02 NOTICE OF TERMINATION. Notice of termination of this Agreement, as
provided for in this Article IX, shall be given by the party so terminating to
the other party hereto in accordance with this Agreement.
9.03 EFFECT OF TERMINATION. In the event of a termination of this
Agreement pursuant to Section 9.01 hereof, this Agreement shall become void and
of no further force and effect, and each party shall pay the costs and expenses
incurred by it in connection with this Agreement, and no party (or any of its
agents, counsel, representatives, Affiliates or assigns) shall be liable to any
other party for any Loss hereunder; PROVIDED, HOWEVER, if nonoccurrence of
Closing is the direct or indirect result of the Default of any party (the
"Defaulting Party") of its obligations hereunder, including, without limitation,
any material inaccuracy in any representation or warranty made by the Defaulting
Party, the Defaulting Party shall be fully liable to the other parties hereto
for any such Default. Notwithstanding the foregoing, upon termination of this
Agreement pursuant to Section 9.01 hereof, the confidentiality provisions set
forth in Section 5.03 hereof shall remain in full force and effect, upon the
terms and conditions set forth herein. It is agreed that time is of the essence
in the performance and satisfaction of this Agreement and each of the conditions
specified in Articles VI and VII of this Agreement are material for purposes of
this Agreement.
9.04 RISK OF LOSS. Seller assumes all risk of condemnation, destruction
or Loss due to fire or other casualty from the date of this Agreement until the
Closing; PROVIDED, HOWEVER, if any such condemnation, destruction or Loss shall
occur, Purchaser shall have the right to terminate this Agreement.
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ARTICLE X
DEFINITIONS
The following terms (in their singular and plural forms as appropriate)
as used in this Agreement shall have the meanings set forth below unless the
context requires otherwise:
"ACCOUNTS RECEIVABLE" means all sums due to each Seller for sales and
deliveries of goods, performance of services and other business transactions on
the Closing Date.
"ACQUIRED INVENTORY" means the inventories of raw materials, supplies,
purchased parts to be incorporated in finished products, operating parts and
supplies, work-in-process, finished products, and other inventories, as set
forth on Exhibit E and to the extent such inventory is included for usage in
Ericsson's forecast for the next twelve months following Closing Date (as set
forth in Exhibit I). It also means consumables of the type listed in Exhibit E,
minus a discount of SEK 50,000.
"AGREEMENT" means this Asset Purchase Agreement, including the Exhibits
and Schedules delivered pursuant hereto or referred to herein.
"ASSUMED CONTRACTS" means the Contracts set forth on Exhibit B.
"ASSUMED LEASES" means the Personal Property/Equipment Leases set forth
on Exhibit A-1.
"ASSUMED LIABILITIES" means (i) all of Seller's employee-related
liabilities, as described in Exhibit F, for its 264 full time employees and 243
active employees (including but not limited to the vacation accruals for each of
Seller's employees, and any other personnel related liabilities that the
Purchaser by law is required to assume, including social costs up until the
Closing Date and the salary and Employee Benefit Plan accruals for each of
Seller's employees including social costs up until the Closing Date, which have
not been paid prior to the Closing Date) on or after the Closing Date; (ii) all
of Seller's liabilities under the Assumed Leases and the Assumed Contracts on or
after the Closing Date, as described in Exhibits A-1 and B ; and (iii) all costs
incurred in connection with terminating any employee on or after Closing Date.
The total value of these Assumed Liabilities is listed in Exhibit F.
"ASSUMED PURCHASE ORDERS" means all purchase orders of Seller outstanding
as of the Closing date, except those set forth in Exhibit H.
"CLOSING" means the consummation of the transactions contemplated by this
Agreement.
"CLOSING DATE" shall mean the actual date of the Closing, and shall be
the later of September 1, 2000 or five (5) business days after the date on which
the Competition Committee approves this
12
transaction, unless otherwise agreed to in writing by the parties hereto.
"COMPETITION COMMITTEE" means the Swedish Competition Committee.
"CONTRACT" means any written or oral contract, agreement, understanding,
lease, usufruct, License, commitment, arrangement, obligation, undertaking of
any kind or character or other document that is binding on any Person or its
assets.
"DEFAULT" means (1) a breach of, default under, or misrepresentation in
or with respect to any Contract, (2) the occurrence of an event that with the
passage of time or the giving of notice or both would constitute a breach of,
default under, or misrepresentation in any Contract, or (3) the occurrence of an
event that with or without the passage of time or the giving of notice or both
would give rise to a right to terminate, change the terms of or renegotiate any
Contract or to accelerate, increase, or impose any Liability under any Contract.
"EMPLOYEE BENEFIT PLAN" shall mean and include all benefits as listed in
Exhibit F.
"FACILITY LEASES" means the four leases for Seller's Katrineholm facility
attached hereto as Exhibit A-2.
"GOVERNMENTAL AUTHORITY" means any federal, county, local, foreign or
other governmental or public agency, instrumentality, commission, authority,
board or body.
"KNOWLEDGE" means, with respect to a person, those facts of which such
person (or, if the person is a corporation, the president, executive vice
president, secretary or treasurer or any director of such person) has actual
knowledge, after due inquiry.
"LAW" means any code, law, order, ordinance, regulation, rule, or statute
of any Governmental Authority.
"LIABILITY" means any direct or indirect, primary or secondary,
liability, indebtedness, obligation, penalty, expense (including, without
limitation, costs of investigation, collection and defense), claim, deficiency,
guaranty or endorsement of or by any Person (other than endorsements of notes,
bills and checks presented to banks for collection or deposit in the ordinary
course of business) of any type, whether accrued, absolute, contingent,
liquidated, unliquidated, matured, unmatured or otherwise.
"LICENSES" means the software licenses listed on Exhibit C.
"LIEN" means any mortgage, lien, security interest, pledge,
hypothecation, encumbrance, restriction, reservation, encroachment,
infringement, easement, lease, conditional sale agreement, title retention or
other security arrangement, adverse right or interest charge or claim of any
nature whatsoever of, on, or with respect to any property or property interest.
13
"LITIGATION" means any lawsuit, action, claim, arbitration or other legal
proceeding (including governmental investigations or criminal prosecution) and
notices received threatening or advising as to any of the foregoing proceedings.
"LOSS" or "LOSSES" means any loss, liability, obligation, damage, claim,
lawsuit, costs and expense, including (i) interest, fines and penalties, (ii)
attorneys' fees and expenses, and (iii) interest on any amount payable to a
Third Party with respect to a matter requiring indemnification.
"ORDER" means any decree, injunction, judgment, order, ruling, writ,
quasijudicial decision or award or administrative decision or award of any
federal, state, local, foreign or other court, arbitrator, mediator, tribunal,
administrative agency or Governmental Authority to which any Person is a party
or that is or may be binding on any Person or its securities, assets or
business.
"OTHER AGREEMENTS" means the agreements, documents, assignments and
instruments to be executed and delivered by Seller to or in favor of Purchaser
pursuant to this Agreement, including but not limited to the Assignment and
Assumption Agreement and Xxxx of Sale.
"PERSON" means a natural person or any legal, commercial or governmental
entity, such as, but not limited to, a corporation, general partnership, joint
venture, limited partnership, limited liability company, limited liability
partnership, trust, business association or any person acting in a
representative capacity.
"PERSONAL PROPERTY" means collectively Seller's furniture, fixtures and
equipment (including office equipment and supplies), computer hardware and
Licenses, and leasehold improvements as set forth in Exhibit D.
"PERSONAL PROPERTY/EQUIPMENT LEASES" mean the Leases set forth on Exhibit
A-1.
"PURCHASE PRICE" shall have the meaning assigned to it in Section 1.02
hereof.
"PURCHASED ASSETS" means and includes the following:
(i) the Acquired Inventory (set forth on Exhibit E);
(ii) the Assumed Leases (set forth on Exhibits A-1 and A-2);
(iii) the Assumed Contracts (set forth on Exhibit B);
(iv) the Personal Property (set forth on Exhibit D) (including
the Licenses set forth on Exhibit C); and
(v) the Assumed Purchase Orders (set forth on Exhibit H).
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Notwithstanding the foregoing, "Purchased Assets" shall specifically exclude the
following assets of Selling Parties:
(1) cash and cash equivalents;
(2) the Accounts Receivable;
(3) contracts other than the Assumed Contracts;
(4) Software licenses other than the Licenses;
(5) Tax refunds; and
(6) Seller's records and reports not relating to the
Purchased Assets.
"RETAINED LIABILITIES" means any Liability of Seller, which is not an
Assumed Liability.
"SWEDISH GAAP" means generally accepted accounting principles in Sweden,
consistently applied. The parties specifically agree that each item in inventory
is to be valued following the principle of lower of historical cost or
repurchase value, the latter to be used only if it is less than net realizable
value.
"THIRD PARTY" or "THIRD PARTIES" means any Person that is not a party to
this Agreement or an affiliate of a party to this Agreement.
ARTICLE XI
MISCELLANEOUS
11.01 NOTICES.
(a) All notices, requests, demands and other communications
hereunder shall be (i) delivered by hand, (ii) mailed by registered or certified
mail, return receipt requested, (iii) sent by overnight courier service, or (iv)
sent by facsimile to the parties or their assignees, addressed as follows:
If to Seller:
Chief Executive Officer
Benchmark Electronics, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx 00000
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With a copy to:
General Counsel
Benchmark Electronics Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx 00000
If to Purchaser:
President
Flextronics International Sweden AR
Xxx 000
XX-000 00 Xxxxxxxxxx
Xxxxxx
(x) All notices, requests, instructions or documents given to
any party in accordance with this Section 11.01 shall be deemed to have been
given (i) on the date of receipt, if delivered by hand, sent by overnight
courier service or sent by facsimile or (ii) on the date which is three (3)
business days after delivery to the post office, if mailed in the manner
prescribed above. Any party hereto may change its address specified for notices
herein by designating a new address by notice in accordance with this Section
12.01.
11.02 ENTIRE AGREEMENT; MODIFICATIONS AND AMENDMENTS. This Agreement, the
Schedules, the Exhibits, the Other Agreements and the Closing Statement
constitute the entire agreement between the parties relating to the subject
matter hereof and thereof and supersede all prior oral and written, agreements
(including that certain letter of intent dated April 20, 2000 between Seller and
Purchaser). This Agreement may not be amended, supplemented or otherwise
modified except by an instrument in writing signed by each of the parties hereto
and no oral waiver to this sentence shall be valid. Whenever terms defined in
this Agreement are used in any Exhibit or Schedule hereto, such terms shall have
the meanings ascribed to them herein also ascribed to them in such Exhibit or
Schedules unless they are otherwise defined in such Exhibit or Schedule. The
term "Agreement" shall mean this instrument and all Exhibits and Schedules
hereto and the words "herein," "hereof," "hereunder," "hereto," "hereby," and
words of similar tenor shall refer to this instrument in its entirety including
the Exhibits and Schedules hereto.
11.03 WAIVERS. The failure or delay of any party at any time to require
performance of any provision of this Agreement shall in any way affect such
party's right to enforce that provision. Any waiver of any breach or provision
hereof shall be in writing. No waiver by any party of any breach shall be deemed
to be a further or continuing waiver of any such breach or provision or a waiver
of any other breach or provision hereof.
11.04 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties hereto, and
their respective successors and assigns, but no assignment shall relieve any
party of its obligations hereunder.
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[CORPORATE SEAL] BENCHMARK ELECTRONICS AB
Attest: /s/ BENGT GARDE
Bengt Garde
By: /s/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx, President
FLEXTRONICS INTERNATIONAL SWEDEN AB
By: /s/ XXXXX XXXXXXX
Xxxxx Xxxxxxx, Vice President
Business Development Western Europe
The undersigned hereby unconditionally and irrevocably guarantees, as for its
own debt (Sw. "sasom for egen skuld") the due and punctual fulfillment of all
the obligations, duties and undertakings of Seller under this Agreement.
BENCHMARK ELECTRONICS, INC.
By: /s/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx, President
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