ASSET PURCHASE AGREEMENT
between
VARI-LITE, INC.
and
FIRST EVENTS B.V.
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ASSET PURCHASE AGREEMENT
THE UNDERSIGNED:
1. VARI-LITE, INC., a corporation organized under the laws of the State of
Delaware (hereinafter referred to as: "VLI"),
and
2. FIRST EVENTS B.V., a corporation organized under the laws of the
Netherlands (hereinafter referred to as: "FIRST EVENTS");
WHEREAS:
A. VLI has agreed to sell, and First Events has agreed to purchase, certain
of VLI's assets and equipment as specified on SCHEDULE I to this
Agreement (hereinafter referred to as: the "ASSETS");
B. VLI has agreed to sell, and First Events has agreed to purchase, the
accounts receivable of VLI representing all amounts due and owing by
Vari-Lite International Europe B.V., Vari-Lite Production Services SAS,
Vari-Lite Production Services N.V. and Vari-Lite Production Services AB
to VLI as specified on SCHEDULE II to this Agreement (hereinafter
referred to as: the "ACCOUNTS RECEIVABLE");
HAVE AGREED AS FOLLOWS:
ARTICLE 1 - SALE AND PURCHASE OF THE ASSETS
1.1 Under the terms and conditions of this Agreement effective as of 30
September 2000 (the "EFFECTIVE DATE"), VLI hereby sells and transfers to
First Events, and First Events purchases and accepts from VLI, the
Assets, free and clear of any liens, claims and encumbrances.
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1.2 Under the terms and conditions of this Agreement, VLI hereby sells and
transfers to First Events, and First Events purchases and accepts from
VLI, the Accounts Receivable.
ARTICLE 2 - PURCHASE PRICE
2.1 The purchase price for the Assets is Euro 3,908,967 (in words: three
million ninehundredeightthousand ninehundredsixty-seven) hereinafter
referred to as the "PURCHASE PRICE".
2.2 First Events has paid the Purchase Price by wire transfer into the bank
account of civil law notary Xxx. X.X. Xxxxx, registered with the ABN Amro
Bank with account number 42.61.79.005 in the name of Stichting
Derdengelden Xxx Xxxxxxxxxxx In 't Veld inzake notariaat, who shall hold
the Purchase Price for First Events until the execution of this Agreement
and for VLI after the execution of this Agreement. Xxx. X.X. Xxxxx shall
as soon as practically possible following the execution of this Agreement
forward the Purchase Price into account number 00571-297-630-0 with ABN
AMRO Bank N.V. in the name of SunTrust Bank - Atlanta with advice "MT-100
for further credit to Vari-Lite International, Inc. Please notify Xxxx X.
Xxxxx at NET 340-7925".
ARTICLE 3 - FURTHER ASSURANCES
3.1 After the execution of this Agreement, each party to this Agreement shall
execute and deliver such additional documents and take such additional
actions as any party or its counsel may reasonably deem to be necessary
or advisable in order to consumate the transaction contemplated by this
Agreement and to vest in First Events good and indefeasible title to the
Assets and to comply with the purposes and intent of this Agreement.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF VLI
4.1 VLI represents and warrants that the following are true and correct at
the date of this Agreement (the "VLI WARRANTIES"):
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a. VLI has full power and authority (corporate and other) to execute,
deliver and perform its obligations under this Agreement and the
transactions contemplated hereby. The execution, delivery and
performance of this Agreement has been duly authorized by VLI.
This Agreement has been duly executed and delivered by VLI and
constitutes the legal, valid and binding obligation of VLI
enforceable in accordance with its terms.
b. VLI owns the Assets, free and clear of all liens, claims and
encumbrances. Upon consummation of the transactions contemplated
by this Agreement, First Events shall receive good, valid and
marketable title to the Assets, free and clear of all liens,
claims and encumbrances.
c. Prior to the execution of this Agreement, the Assets have been
serviced and maintained consistently based upon VLI's past
practices.
ARTICLE 5 - DISCLAIMER OF WARRANTIES
5.1 Without limiting the representations and warranties contained in
Sub-Article 4.1 of this Agreement, First Events acknowledges that all
Assets and Additional Equipment (as hereinafter defined) are being sold
"as is where is" (in Dutch: "IN XX XXXXX WAARIN, EN DAAR WAAR, ZIJ ZICH
BEVINDEN").
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES OF FIRST EVENTS
6.1 First Events represents and warrants that the following are true and
correct at the date of this Agreement (the "FIRST EVENTS WARRANTIES"):
a. First Events has full power and authority (corporate and other) to
execute, deliver and perform its obligations under this Agreement
and the transactions contemplated hereby. The execution, delivery
and performance of this Agreement has been duly authorized by
First Events. This Agreement has been duly executed and delivered
by First Events and constitutes the legal, valid and binding
obligation of First Events enforceable in accordance with its
terms.
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ARTICLE 7 - BREACH OF WARRANTIES
7.1 In the event of a breach of any of the VLI Warranties or First Events
Warranties (hereinafter: a "BREACH") the party in breach (the "PARTY IN
BREACH") shall, subject to the provisions of this Article, with due
respect to the other provisions of this Agreement, indemnify and hold
harmless the other party and all of its Affiliates (the "INDEMNIFIABLE
PARTY") for any and all damage as a result of any such Breach, however
only if and in so far as the Indemnifiable Party has done all things
reasonable from the date of this Agreement to prevent and minimize
damage. As used herein, the term Affiliate, with respect to any person or
entity, shall mean any other person or entity which, directly or
indirectly, controls, is controlled by or in under common control with
such other person or entity.
7.2 The Party in Breach shall only be liable if and to the extent that the
damage in the aggregate for all claims, including those pursuant to
Article 10 - of the Share Purchase Agreement between Vari-Lite
International, Inc. and First Events of even date herewith (hereinafter
"the Share Purchase Agreement") exceeds an amount of Euro 100,000 (in
words: one hundred thousand Euro). If the damage exceeds an amount of
Euro 100,000 (in words: one hundred thousand Euro), the Party in Breach
shall be liable for the full amount of the damages and not only for the
excess amount.
7.3 The liability of the Party in Breach (including in the case of VLI the
liability of Vari-Lite International, Inc. resulting from Breaches as
defined in sub-Article 10.3 of the Share Purchase Agreement) resulting
from Breaches shall not exceed EURO 4,500,000 (in words: four million
five hundred thousand Euro).
7.4 The liability of the Party in Breach shall only apply to Breaches about
which the Party in Breach received written notice from the Indemnifiable
Party within 18 months after the Effective Date.
7.5 If the Indemnifiable Party becomes aware of any matter which will result
in the Party in Breach being liable pursuant to this Article 7, the
Indemnifiable Party shall inform the Party in Breach thereof within 20
days or such earlier time as may be necessary or appropriate to ensure
that the Party in Breach has full opportunity to remedy such Breach
without prejudice, stating the nature of the matter and the damage
expected or sustained. Failure to notify the Party in Breach within such
time shall relieve the Party in Breach of any liability under this
Article 7.
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7.6 If a Breach is the result of - or is connected with - a liability
vis-a-vis or in dispute with a third party, the Indemnifiable Party shall
ensure that:
a. the Indemnifiable Party, at the request and on the instructions of
Party in Breach shall do everything (or, as the case may be,
refrain therefrom), to conduct a defense against, or to negotiate
about the claim concerned and to minimize the damage which may
arise from such claim;
b. in connection with the defense referred to under (a) to the extent
allowed by applicable laws the Indemnifiable Party shall only
engage advisors after consultation of the Party in Breach, or give
to the Party in Breach power of attorney to act in and out of
court as the agent of the Indemnifiable Party;
c. the Party in Breach shall have the right to compromise or defend,
at its own expense and by its own counsel, any such dispute. The
opportunity to compromise or defend, as herein provided, shall be
a condition precedent to any liability of the Party in Breach
under the provisions of this Article. If the Party in Breach shall
undertake to compromise or defend any such asserted liability, it
shall promptly notify the Indemnifiable Party in writing of its
intentions to do so. The Indemnifiable Party shall cooperate with
the Party in Breach or its counsel in the defense against any such
asserted liability and in any compromise thereof. Such cooperation
shall include furnishing the Party in Breach with any books,
records or information reasonably requested by it. After the Party
in Breach has notified the Indemnifiable Party of its intention to
undertake to compromise or defend any such asserted liability, the
Party in Breach shall not be liable for any additional legal
expenses incurred by the Indemnifiable Party. If the Party in
Breach shall desire to settle any such asserted liability and the
Indemnifiable Party shall refuse to consent to such compromise,
then the Party in Breach's liability shall be limited to the
amounts so offered in compromise; provided, however, that such
proposed settlement involves only the payment of money. No
compromise or settlement of such claims may be effected by the
Party in Breach without the Indemnifiable Party's consent, which
consent shall not be unreasonably withheld or delayed, unless (1)
there is no finding or admission of any violation of applicable
law or legal requirement or any violation of the rights of any
person or entity and no effect on any other claims may be made
against members of the Indemnifiable Party and (2) the sole relief
provided is monetary damages that are paid in full by the Party in
Breach. The Party in Breach shall
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have no liability with respect to any compromise or settlement of
such claims effected without the Party in Breach's consent.
ARTICLE 8 - EFFECT OF INSURANCE, TAX AND PROVISIONS ON LOSSES AND DAMAGES
8.1 For the purpose of determining the damages incurred by the Indemnifiable
Party for which the Party in Breach shall be liable pursuant to this
Agreement, such damages shall be reduced by (and, if already paid for by
the Party in Breach, repaid by the Indemnifiable Party to the Party in
Breach):
a. the amount of all insurance proceeds recovered by the
Indemnifiable Party with respect to such damages; plus
b. all amounts other than insurance proceeds received by the
Indemnifiable Party from third parties, whether pursuant to
counter claims or otherwise with respect to such damages; plus
c. tax refunds or reductions, which are a result of the fact or
complex of facts on which the claim for compensation of damages is
based, available to the Indemnifiable Party with respect to such
damages.
The Indemnifiable Party shall at all times use its best efforts to
mitigate damages as a result of a Breach.
ARTICLE 9 - ADDITIONAL EQUIPMENT
9.1 For a two-year period commencing as of the Effective Date, First Events
may purchase from VLI for its own use (rental and resale) the
fully-loaded refurbished used equipment listed on SCHEDULE III hereto
(the "ADDITIONAL EQUIPMENT"), provided that the Additional Equipment is
available for sale by VLI at such time as First Events submits a purchase
order for any such purchase. The per unit purchase prices for the
Additional Equipment are set forth in Schedule III and shall be payable
by wire transfer before the time of delivery, in immediately available
funds, in U.S. dollars, or, if VLI so agrees, by delivery of an
irrevocable, standby letter of credit in U.S. dollars prior to the time
of delivery. VLI shall be obligated to deliver the Additional Equipment
to First
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Events not sooner than three months from the date VLI receives a written
purchase order from First Events. Risk of loss of the Additional
Equipment shall be borne by First Events upon delivery of the Additional
Equipment by VLI to a common carrier retained by First Events. VLI shall
use its best efforts to deliver the Additional Equipment at its London,
England office. All taxes, customs duties, shipping, insurance and
similar expenses shall be borne by First Events. As used herein,
"fully-loaded" means the specific model of luminaire in question,
together with its ancillary or associated equipment as described in
Schedule III; provided, however, that any item or unit of ancillary or
associated equipment shall be required to be delivered with the
applicable luminaire only if the product of (a) the number of that model
of luminaire being delivered, together with any luminaires of that same
model which were previously delivered without ancillary or associated
equipment, multiplied by (b) the fraction listed in the column entitled
"QTY" on Schedule III equals more than 0.5.
ARTICLE 10 - SPARE PARTS, UPGRADES AND RETROFITS
10.1 For a period of five years from the Effective Date, VLI or its designated
Affiliate shall subject to availability sell to the First Events Group
(as defined in the Share Purchase Agreement), and the First Events Group
shall purchase from VLI or its designated Affiliate, or its designated
Affiliate, all spare parts required for the "VARI*LITE-Registered
Trademark-" equipment owned by the First Events Group. The purchase price
shall be based on the then-current published authorized dealer prices,
and shall be payable within 30 days of the date of shipment or such other
terms as established by VLI from time to time and applicable to VLI's
dealers generally.
10.2 For a period of five years from the Effective Date, if VLI (i) fails to
provide spare parts to the First Events Group under the terms of this
Agreement within five months from the order date, or (ii) is declared
bankrupt or insolvent by a court of competent jurisdiction, the First
Events Group shall, as its sole remedy for VLI's failure to comply with
Sub-Article 10.1 have the right to demand VLI's working drawings and list
of suppliers to enable the First Events Group to procure other sources
for such spare parts. Upon such demand, VLI must, within 10 business
days, deliver the aforementioned working drawings and list of suppliers
to First Events Group at First Events Groups' headquarters or such other
place as First Events Group may designate in writing.
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10.3 For a period of five years from the Effective Date, the First Events
Group shall be either entitled to purchase or entitled to receive without
charge from VLI all upgrades (including software upgrades) and retrofits
to the "VARI*LITE-Registered Trademark-" equipment owned by the First
Events Group, all on the same terms and conditions VLI generally offers
to its unaffiliated authorized dealers.
10.4 For a period of five years from the Effective Date, VLI shall provide the
First Events Group access to all of VLI's technical data which is
necessary to repair or maintain or service the "VARI*LITE-Registered
Trademark-" equipment on a basis consistent with the provision of such
information to VLI's dealers generally.
ARTICLE 11 - PAST DUE PAYMENTS
11.1 If First Events fails to pay any amount due to VLI in respect of
purchases of spare parts, upgrades, retrofits or Additional Equipment and
fails to remedy such late payment within 30 days from having received
written notice of default:
a. such past due payment shall accrue interest at a rate of 18% per
annum, and
b. the rights and obligations pursuant to Articles 9, 10 and 12 of
this Agreement shall terminate and have no further effect.
ARTICLE 12 - USE OF NAME
12.1 Immediately after the Closing, First Events shall cause each and every
company within the First Events Group to cease using and conducting
business under, and none of the First Events Group companies shall use or
conduct business under, any name including the word "Vari-Lite,"
Vari-Lite Production Services," "VLPS" or any derivation thereof or name
deceptively similar thereto, and shall, upon demand from time to time,
provide VLI proof of compliance with this Article 12. Notwithstanding the
foregoing, VLI hereby grants the First Events Group a personal, limited,
non-exclusive, non-transferable license to use the name and logo
"VARI*LITE-Registered Trademark-" (the "XXXX"), only insofar as the Xxxx
relates to equipment manufactured by VLI and owned by First Events, and
only in a manner approved by VLI in writing, and on the following terms
and conditions:
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a. VLI owns all rights to the Xxxx and First Events Group's use of
the Xxxx shall inure entirely to the benefit of VLI. First Events
Group shall have no right, title or interest in or to the Xxxx.
b. First Events Group shall not, nor cause, permit or suffer any
other person or entity to, change, deface, alter, remove or
obscure from view any identifying xxxx on equipment manufactured
by VLI, including, the Xxxx, the CE xxxx, any patent numbers,
trade names, trademarks, notices, serial numbers, labels, tags or
other identifying marks, symbols or legends affixed to any
equipment, containers or packages.
c. First Events Group shall not hold out or otherwise use the Xxxx to
perform any activity outside the scope of this Agreement or any
other agreement entered into or to be entered into by First Events
and VLI. First Events shall not use any trademark or trade name
identical or confusingly similar to the Xxxx.
d. First Events acknowledges receipt of the "style guide" prepared by
VLI with respect to uses of the VLI Marks. First Events shall, and
shall cause the First Events Group to, use the VLI Marks only in
the forms prescribed by the "style guide," as it may be revised
from time to time by VLI, and all uses of the VLI Marks by First
Events Group shall include any copyright or trademark notices that
VLI deems advisable or as required by applicable law.
e. VLI shall have the right, but not the obligation, to review all
uses by First Events Group of the VLI Marks at any time, and upon
termination of the ownership by the Companies of equipment
manufactured by VLI, all licenses and rights of First Events Group
to use the VLI Marks shall lapse and First Events Group shall
cease all use of the VLI Marks.
12.2 Notwithstanding the above, the Companies shall be allowed to use "VLPS"
as a trade name for six months following the Closing Date.
ARTICLE 13 - REMEDIES AND WAIVERS
13.1 With due regard to Article 7 of this Agreement, no delay or omission on
the part of any party to this Agreement in exercising any right, power or
remedy provided by law or under this Agreement or any other documents
referred to in it, shall:
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a. affect that right, power or remedy; or
b. operate as a waiver of it.
13.2 The single or partial exercise of any right, power or remedy provided by
law or under this Agreement shall not preclude any other or further
exercise of it or the exercise of any other right, power or remedy.
13.3 The rights, power and remedies provided in this Agreement are the
exclusive rights, powers and remedies provided to the parties.
ARTICLE 14 - ASSIGNMENT
14.1 Neither of the parties may assign or agree to assign any of its rights or
obligations under this Agreement without the prior written consent of the
other party, which consent shall not be withheld or delayed unreasonably.
14.2 Notwithstanding Sub-Article 14.1, First Events may assign its rights and
obligations (including the right to receive the Assets) under this
Agreement without the prior written consent of VLI, to any member of the
First Events Group designated by First Events to accept such rights and
obligations; provided, however, that First Events shall guarantee the
performance by the assignee.
ARTICLE 15 - ENTIRE AGREEMENT
15.1 This Agreement constitutes the whole and only agreement between the
parties relating to the sale and purchase of the Assets under this
Agreement.
ARTICLE 16 - NOTICES
16.1 Any notices or other communication under this Agreement shall only be
effective if it is in writing.
16.2 No notice or other communication given or made under this Agreement may
be withdrawn or revoked.
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16.3 Any notice or communication given or made under this Agreement shall be
addressed as provided in Sub-Article 16.5 and, if so addressed, shall, in
the absence of earlier receipt, be deemed to have been duly given or made
as follows:
a. if sent by personal delivery, on delivery at the address of the
relevant party;
b. if sent by express courier, three business days after the date of
posting; and
c. if sent by facsimile, with a copy sent by personal delivery or
post, when dispatched.
16.4 Any notice or other communication given or made, or deemed to have been
given or made, outside working hours will be deemed not to have been
given or made until the start of the next period of working hours.
16.5 The relevant notice details are:
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VLI: Vari-Lite International, Inc.
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Attention: X.X. Xxxxxxxx III
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000 Xxxxx Xxx,
Xxxxxx, Xxxxx 00000
XXX
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tel.: 000 000 000 00 00
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fax: 000 000 000 00 00
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WITH A COPY TO:
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Xxxxx Dutilh Attention: Xx. X.X. Xxxxxxxx
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X.X. Xxx 0000
0000 XX Xxxxxxxxx
xxx Xxxxxxxxxxx
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tel.: 00 00 00 000 00 00
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fax: 00 00 00 000 00 00
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Gardere & Xxxxx, L.L.P. Attention: Xx. X. Xxxxxxx
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0000 Xxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx, 00000
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USA
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tel.: 000 000 000 0000
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fax.: 000 000 000 0000
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FIRST EVENTS: First Events International B.V.
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Attention:
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[address]
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tel.:
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fax:
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WITH A COPY TO:
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Xxx Xxxxxxxxxxx In't Veld Attention: Mr. M.R. van Schooten
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X.X. Xxx 00000
0000 XX Xxxxxxxxx
xxx Xxxxxxxxxxx
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tel.: (+31) (0)20 - 679 69 69
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fax: (+31) (0)20 - 000 00 00
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16.6 A party may notify the other party of a change to its notice details. The
notifications shall only be effective on:
a. any effective date specified in the notification; or
b. if no date is specified or the date specified is less than five
business days after the date when the notification is received,
the date following five business days after the notification has
been received.
ARTICLE 17 - ANNOUNCEMENTS
17.1 Subject to Sub-Article 17.2, no announcement concerning this Agreement
shall be made by a party without the prior written consent of the other
party, which consent shall not be withheld or delayed unreasonably.
17.2 Either party may make an announcement concerning this Agreement if
required by:
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a. the law of any relevant jurisdiction; or
b. any securities exchange or regulatory or governmental body to
which either party is subject or submits, wherever situated,
including Nasdaq.
ARTICLE 18 - CONFIDENTIALITY
18.1 Subject to Sub-Article 18.2, each party shall treat as strictly
confidential all information received or obtained as a result of entering
into or performing this Agreement.
18.2 Either party may disclose information which would otherwise be
confidential if and to the extent:
a. required by law of any jurisdiction;
b. required by any securities exchange or regulatory or governmental
body to which either party is subject or submits, wherever
situated, including Nasdaq, whether or not the requirement for
information has the force of law;
c. it is disclosed to the professional advisors, auditors or bankers
of that party (subject to duties of confidentiality);
d. the information has come into the public domain through no fault
of that party; or
e. the other party has given its prior written consent to the
disclosure, such consent not be withheld or delayed unreasonably.
ARTICLE 19 - COSTS AND EXPENSES
19.1 Save as otherwise stated in any other provision of this Agreement, each
party shall pay its own costs and expenses in relation to the
negotiations leading up to the sale of the Assets, and to the
preparation, execution and carrying into effect to this Agreement and all
other documents referred to in it.
19.2 Notwithstanding Article 19.1, any taxes, fees, stamp duties and charges
and registration fees payable in connection with this Agreement and the
implementation thereof shall be borne by First Events.
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ARTICLE 20 - COUNTERPARTS
20.1 This Agreement may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until each
party has executed at least one counterpart. Each counterpart shall
constitute an original of this Agreement, but all the counterparts
together constitute but one and the same instrument.
ARTICLE 21 - INVALIDITY
21.1 If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, that shall not affect or impair:
a. the legality, validity or enforceability in that jurisdiction of
any other provisions of this Agreement; or
b. the legality, validity or enforceability under the law of any
other jurisdiction of that or any other provision of this
Agreement.
ARTICLE 22 - LANGUAGE
22.1 Each notice, demand, request, statement, instrument, certificate or other
communication given, delivered or made by one party or another under or
in connection with this Agreement shall be in English.
ARTICLE 23 - MISCELLANEOUS
23.1 Parties waive their rights, if any, to annul, resent or dissolve,
including: "ONTBINDING" and "VERNIETIGING" of this Agreement.
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ARTICLE 24 - CHOICE OF GOVERNING LAW AND JURISDICTION
24.1 This Agreement shall be governed by and construed in accordance with
Netherlands law.
24.2 The Amsterdam court is to have exclusive jurisdiction to settle any
dispute in connection with this Agreement. This jurisdiction agreement is
irrevocable.
Thus agreed on and signed on 26 October 2000.
VARI-LITE, INC.
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By: Xx. X.X. Xxxxxxxx III
FIRST EVENTS B.V.
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By: B.V. Odeum By: Histricus B.V.
L. de Bruijn Holding B.V. Movet Beheer B.V.
Mr. L. de Bruijn Mr. X.X. van der Wind
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SCHEDULES TO THIS AGREEMENT
I. Assets
II. Accounts Receivable
III. Additional Equipment
