EXHIBIT 2.2
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("AGREEMENT"), is entered into this _____
day of March, 1999 ("EFFECTIVE DATE"), by and among Asea Xxxxx Boveri AB, a
Swedish corporation ("ABB") and Flow Holdings GmbH (SAGL) Limited Liability
Company, a Swiss company ("BUYER"). Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Main Stock Purchase
Agreement, as defined below.
RECITALS
A. The parties or their Affiliates are simultaneously entering into
the Amended and Restated Stock Purchase Agreement by and among Asea Xxxxx Boveri
AB, a Swedish company and Gigantissumo 2131 AB under name change to Flow
International FPS AB, a Swedish company with respect to the issued and
outstanding stock of ABB Pressure Systems AB, a Swedish company with the
registration number 556064-1770 ("PRESSURE SYSTEMS") ("MAIN STOCK PURCHASE
AGREEMENT") and the Amended and Restated Stock Purchase Agreement by and among
ABB Industrial Systems, Inc., an Ohio corporation, Flow International
Corporation, a Washington corporation and ABB Autoclave Systems Inc., a Delaware
corporation. This Agreement, together with the aforementioned agreements are
the "TRANSACTION AGREEMENTS". Pursuant to the Transaction Agreements Buyer will
be purchasing a business which develops, manufactures, markets and sells
isostatic presses for pressures higher than 15,000 PSI for forming,
densification or microbiological reduction ("BUSINESS").
B. Buyer desires to acquire certain assets of ABB which are used in
the Business of Pressure Systems (the "Acquired Assets" as defined in Section
1.1) and to assume certain contractual obligations relating to the Acquired
Assets, all on the terms and subject to the conditions hereinafter set forth.
INTENDING TO BE LEGALLY BOUND, and in consideration of the premises and
the mutual representations, warranties, covenants and agreements contained
herein, Buyer and ABB hereby agree as follows:
ARTICLE I
PURCHASE OF ASSETS
1.1 PURCHASE OF ASSETS. Subject to the terms and conditions of this
Agreement, at the Closing, as defined below, ABB shall sell, convey, transfer,
assign and deliver to Buyer, and Buyer shall purchase, acquire and accept from
ABB, the following assets (together, the "ACQUIRED ASSETS"):
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All patents and trademarks (excluding any right of whatever kind relating
to "ABB", "BBC", "Asea" or "Xxxxx Boveri", including any such name spelled in
upper or lower case or any combination thereof, or any names confusingly similar
thereto or any combination of such names), and applications for any of the
foregoing, set forth on SCHEDULE 1.1(a) ("ABB INTELLECTUAL PROPERTY"); and
1.2 EXCLUDED LIABILITIES. Buyer shall not assume or be liable for any
of the debts, obligations or liabilities of ABB of any nature whatsoever,
regardless of whether or not such debts, obligations or liabilities have been
disclosed pursuant to this Agreement.
1.3 PURCHASE PRICE. In consideration for the sale, assignment and
transfer of the Acquired Assets and the representations and warranties contained
herein, Buyer agrees to pay to ABB the aggregate amount of Fourteen Million US
Dollars (US$14,000,000) ("PURCHASE PRICE").
1.4 CLOSING AND EFFECTIVE DATE. The Closing shall take place on March
31, 1999 (the "CLOSING DATE" or "CLOSING"), at the offices of Asea Xxxxx Boveri
AB, Vasteras, Sweden, unless another date or place is agreed to in writing by
the parties hereto.
1.5 CLOSING DATE DELIVERIES.
(a) On the Closing Date, ABB shall deliver to Buyer the following
validly executed instruments:
(i) Certified copy of resolutions of the Board of Directors of
ABB authorizing the execution and performance of this Agreement and the
transaction contemplated herein;
(ii) The closing certificate required by Section 5.1;
(iii) Assignments in recordable form with the patent and/or
trademark governmental authorities or instrumentalities in the applicable
jurisdictions of all ABB Intellectual Property being purchased hereunder,
reasonably satisfactory in form and substance to Buyer; and
(iv) Such other instruments or documents necessary to consummate
this Agreement, all satisfactory in form and substance to Buyer.
(b) On the Closing Date, Buyer shall deliver to ABB the following
validly executed instruments:
(i) Fourteen Million US Dollars ($14,000,000) payable to ABB by
wire transfer of immediately available funds;
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(ii) Certified copy of resolutions of the Board of Directors of
Buyer authorizing the execution and performance of this Agreement and the
transaction contemplated herein;
(iii) The closing certificate required by Section 5.2; and
(iv) Such other instruments or documents necessary to consummate
this Agreement, all satisfactory in form and substance to Buyer.
1.7 TAXES. Buyer shall pay all transfer, sales and use taxes arising
out of or in connection with the transaction effected pursuant to this
Agreement.
1.8 ALLOCATION. ABB and Buyer agree that the Purchase Price shall be
allocated to the Acquired Assets as intangibles and agree to prepare and file
all applicable financial reporting and foreign, federal, and local tax returns
(including such forms as may be required by applicable regulations) in a manner
consistent with the allocation and will not in connection with the filing of
such returns make any allocation of the Purchase Price, as defined below, that
is contrary to the allocation. ABB and Buyer shall consult with each other with
respect to all issues related to such allocation in connection with any tax
audit and shall not initiate any positions inconsistent with such allocation in
any tax audit. The parties agree to file all applicable foreign and federal
income tax and corresponding state and/or local tax forms on a timely basis.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ABB
Except as disclosed in this Agreement, or the Schedules, or in the
disclosure schedules delivered by ABB to Buyer prior to the execution of this
Agreement (the "ABB DISCLOSURE SCHEDULE"), ABB represents and warrants to Buyer
as follows:
2.1 ORGANIZATION, STANDING, AND POWER. ABB is a corporation duly
organized, validly existing, and in good standing under the laws of Sweden. ABB
has all requisite power and authority to own, lease, and operate its properties
and to carry on its businesses as now being conducted, and is duly qualified,
validly existing and in good standing (in such jurisdictions in which good
standing is applicable) to do business in each jurisdiction in which a failure
to so qualify would have a material adverse effect on the Business Condition (as
hereinafter defined) of ABB. As used in this Agreement, "BUSINESS CONDITION"
with respect to any entity shall mean the business, financial condition, results
of operations or assets.
2.2 AUTHORITY. ABB has, or shall have prior to the Closing, all
requisite corporate power and authority to enter into this Agreement and,
subject to the Company's Required Statutory Approvals, to consummate the
transactions contemplated hereby. As used in this Agreement "COMPANY'S REQUIRED
STATUTORY APPROVALS" means such filings, authorizations, orders and approvals as
may be required under federal or foreign laws, or securities laws. The
execution and delivery by ABB of this Agreement and the consummation of the
transactions
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contemplated hereby have been duly authorized by all necessary corporate action
on the part of ABB, including the approval of the Board of Directors and sole
shareholder of ABB. This Agreement has been duly executed and delivered by ABB
and constitutes a valid and binding obligation of ABB enforceable in accordance
with its terms, except that such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization, or other similar laws relating to
enforcement of creditors' rights generally and (ii) general equitable
principles, including the availability of specific performance, injunctive
relief and other equitable remedies.
2.3 TECHNOLOGY AND INTELLECTUAL PROPERTY RIGHTS.
(a) Except as set forth in SCHEDULE 2.3, the ABB Intellectual Property
consists solely of items and rights which are owned by ABB and ABB owns the
entire right, title and interest in and to such ABB Intellectual Property free
and clear of any Liens. To ABB's Knowledge, ABB has all rights in the ABB
Intellectual Property necessary to carry out ABB's current, former (but not
prior to January 1, 1995), and anticipated future (up to the Closing) activities
with respect to the Business of Pressure Systems. ABB's Knowledge means that
the following employees of ABB, Katarina Vannesjo-Xxxxxxxx, Xxxxxxxx Below and
Xxxxxxx ABB, Katarina Vannesjo-Xxxxxxxx, Xxxxxxxx Below and Xxxxxxx ights which
are owned by ABB and ABB owns the entire right, title and interest in and to
such ABB Intellectual Property free and clear diligence, and based upon the
foregoing, such persons are not aware and have no reasonable basis to believe
that there are any inaccuracies in such specific representation and warranty and
related ABB Disclosure Schedule with respect to which such knowledge statement
is made.
(b) All right and title in the patents and applications thereto
included in the ABB Intellectual Property ("PATENTS") are owned exclusively by
ABB. To the Knowledge of ABB, the inventions which are the subject of the
Patents were not known or used by ABB or its employees or agents or by third
parties in any country before the invention thereof by said employees or agents.
To the Knowledge of ABB, the inventions which are the subject of the Patents
were not patented or described in a printed publication in any country or placed
in public use or on sale in any country more than one year prior to the date of
application for patents by ABB. To the Knowledge of ABB there is no prior art
more relevant to the inventions which are the subject of the Patents than that
considered by the relevant patent office during the prosecution of the patent
applications and patents for the inventions which are the subject of the
Patents.
(c) To ABB's Knowledge, the ABB Intellectual Property does not
infringe on any proprietary right of any Person. No claims (i) challenging the
validity, effectiveness, or ownership by ABB of any of the ABB Intellectual
Property, or (ii) to the effect that the ABB Intellectual Property infringes or
will infringe on any intellectual property or other proprietary right of any
person have been asserted or, to ABB's Knowledge, are threatened by any person
nor to ABB's Knowledge are there any valid grounds for any bona fide claim of
any such kind. All granted or issued patents and all trademarks held by ABB are
valid and enforceable, and all patent applications, provisional patents, and
trademark applications with respect to the ABB Intellectual Property are pending
and all applicable administrative actions, including the payment of fees and
filing of applicable documentation, have been taken, all without challenge of
any kind; and no aspect thereof is subject to any outstanding order, ruling,
decree, judgment or
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stipulation by or with any governmental authority or arbitrator. To ABB's
Knowledge, there is no material unauthorized use, infringement or
misappropriation of any of the ABB Intellectual Property by any third party,
employee or former employee.
(d) ABB has provided to Buyer all written assignments from all parties
who have created any portion of, or otherwise have any rights in or to, the ABB
Intellectual Property or other rights to ABB.
2.4 LEGAL PROCEEDINGS. There are no claims, suits, actions,
arbitrations, legal, administrative or other proceedings or governmental
investigations to which ABB is a party or which are, to the Knowledge of ABB,
threatened against ABB or, to the Knowledge of Seller, which affect the Acquired
Assets or the Business. ABB, with respect to the Acquired Assets or the
Business is not in default with respect to any judgment, order, writ,
injunction, decree or award of any governmental agency or of any arbitrator or
arbitration panel.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to ABB as follows:
3.1 ORGANIZATION; STANDING AND POWER. Buyer is a corporation duly
organized, and validly existing under the laws of Switzerland, has all requisite
power and authority to own, lease, and operate its properties and to carry on
its businesses as now being conducted, and is duly qualified and in good
standing to do business in each jurisdiction in which a failure so to qualify
would have a material adverse effect on the Business Condition of Buyer.
3.2 AUTHORITY. Buyer has, or shall have prior to the Closing, all
requisite corporate power and authority to enter into this Agreement and,
subject to the Buyer's Required Statutory Approvals, to consummate the
transactions contemplated hereby. As used in this Agreement "BUYER'S REQUIRED
STATUTORY APPROVALS" means such filings, authorizations, orders and approvals as
may be required under federal or foreign laws, or securities laws. The
execution and delivery by Buyer of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Buyer including the approval of the Board of
Directors of Buyer. This Agreement has been duly executed and delivered by
Buyer and constitutes a valid and binding obligation of Buyer enforceable in
accordance with its terms, except that such enforceability may be subject to
(i) bankruptcy, insolvency, reorganization, or other similar laws relating to
enforcement of creditors' rights generally and (ii) general equitable
principles, including the availability of specific performance, injunctive
relief and other equitable remedies.
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ARTICLE IV
INDEMNIFICATION
4.1 INDEMNIFICATION BY ABB. Subject to Sections 4.5, 4.6, and 4.7,
ABB shall defend, indemnify, and hold Buyer and its Affiliates harmless from and
against, and reimburse Buyer with respect to, any and all Losses incurred by
Buyer or its Affiliates, employees, officers, directors and agents by reason of
or arising out of or in connection with (i) any breach, or any third party claim
that if true, would constitute a breach, by ABB of any representation or
warranty of ABB contained in this Agreement or in any certificate delivered to
Buyer pursuant to the provisions of this Agreement and/or (ii) the failure,
partial or total, of ABB to perform any agreement or covenant required by this
Agreement to be performed by it.
4.2 INDEMNIFICATION BY BUYER. Subject to Sections 4.5 and 4.6, Buyer
shall defend, indemnify, and hold ABB and its employees, officers, directors,
and agents harmless from and against, and reimburse ABB with respect to, any and
all Losses incurred by ABB by reason of or arising out of or in connection with:
(i) any breach, or any third party claim that if true, would constitute a breach
by Buyer of any representation or warranty of Buyer contained in this Agreement
or in any certificate delivered to ABB pursuant to the provisions of this
Agreement and/or (ii) the failure, partial or total, of Buyer to perform any
agreement or covenant required by this Agreement to be performed by it.
4.3 NOTICE OF CLAIMS. All claims for indemnification under this
Agreement shall be resolved in accordance with the following procedures:
(a) If an indemnified party becomes aware of a Loss, it shall,
as soon as reasonably practical, deliver a Claim Notice to the indemnifying
party for such Losses. If an indemnified party receives notice of a third-party
claim for which it intends to seek indemnification hereunder, it shall give the
indemnifying party prompt written notice of such claim, so that the indemnifying
party's defense of such claim under Section 4.4 hereunder may be timely
instituted.
(b) When Losses are actually incurred or paid by an indemnified
party or on an indemnified party's behalf or otherwise fixed or determined, the
indemnified party shall as soon as reasonably practical, deliver a Payment
Certificate to the indemnifying party for such Losses. If a Claim Notice or
Payment Certificate refers to any claim, action, suit, or proceeding made or
brought by a third party, the Claim Notice or Payment Certificate shall include
copies of the claim, any process served, and all legal proceedings with respect
thereto.
(c) If, after receiving a Payment Certificate, the indemnifying
party desires to dispute such claim or the amount claimed in the Payment
Certificate, it shall deliver to the indemnified party a Counternotice as to
such claim or amount. Such Counternotice shall be delivered within thirty (30)
days after the date the Payment Certificate to which it relates is received by
the indemnifying party. If no such Counternotice is received within the
aforementioned 30-day period, the indemnifying party shall have waived any
further objection to the Payment Certificate or the Losses described in it, and
the indemnified party shall be entitled to prompt payment for such Losses from
the indemnifying party.
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(d) If, within thirty (30) days after receipt by the
indemnified party of the Counternotice to a Payment Certificate, the parties
shall not have reached agreement as to the claim or amount in question, the
claim for indemnification shall be decided in accordance with the provisions of
Section 6.8.
(e) In the event the indemnified party is required to take
action to comply with any requirements imposed by law, to minimize its damages,
to avoid a forfeiture or penalty, or to avoid missing a deadline, the
indemnified party shall be indemnified for its Losses to the full amount set
forth in this Agreement. The indemnified party shall not be penalized for
protecting the indemnifying party's obligations.
4.4 DEFENSE OF THIRD PARTY CLAIMS. The indemnifying party under this
Article IV shall have the right to conduct and control, through counsel of its
own choosing, any third-party claim, action, or suit or compromise or settlement
thereof. The indemnified party may, at its election, participate in the defense
of any such claim, action, or suit through counsel of its choosing, but the fees
and expenses of such counsel shall be at the expense of the indemnified party.
If the indemnifying party does not assume the defense of any such third-party
action, claim, or suit, then the indemnified party may defend, through counsel
of its own choosing, such action, claim, or suit and may settle such action,
claim, or suit and recover from the indemnifying party the amount of such
settlement or of any judgment and the costs and expenses of such defense;
provided, however, that the indemnifying party shall not be liable to pay any
such settlement unless the indemnified party shall have given the indemnifying
party written notice of the terms of the proposed settlement and the
indemnifying party shall have failed, within twenty (20) days of receipt of such
notice, to undertake the defense of such action, claim, or suit. The
indemnifying party shall not compromise or settle any third-party action, claim,
or suit which includes any term that shall require any act or forbearance by the
indemnified party from all liability in respect of such claim, action, or suit
without the prior written consent of the indemnified party, which consent shall
not be unreasonably withheld or delayed. Assumption by an indemnifying party of
control of any such defense, compromise, or settlement shall not be deemed a
waiver by it of its right to challenge its obligation to indemnify the
indemnified party. The parties hereto shall cause that shall cooperate in all
reasonable respects with each other in connection with the defense, negotiation,
or settlement of any legal proceeding, claim, or demand referred to in this
Section 4.4. Buyer and its Affiliates shall take reasonable actions to mitigate
Losses of Buyer with respect to any claim for which Buyer is seeking
indemnification. Failure to so mitigate or the assumption of the defense by
indemnified party as provided above shall not constitute a waiver of its right
to seek indemnification. The indemnifying party and its authorized
representatives shall be given reasonable access to the indemnified party's
documents and records and to its employees to enable the indemnifying party to
examine such documents and records and employees as reasonably necessary in
connection with such defense. Subject to the confidentiality provisions
contained herein, the indemnifying party may make copies of such books and
records as reasonably necessary in connection with such defense. The reasonable
costs of the indemnified party in complying with the foregoing shall be paid by
the indemnifying party.
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4.5 TIME LIMIT. The provisions of this Article IV shall apply only to
Losses that are incurred or relate to asserted claims, demands, or liabilities
for which a Claim Notice is given within three (3) years of the Closing Date,
after which applicable time ABB shall have no liability whateverkind whether for
breach of any representation, warranty or covenant or other provision herein,
provided, however, that the indemnification obligations for such claims for
which a Claim Notice is given within the time period set forth above shall
continue until the final resolution of each such claim.
4.6 LIMITATIONS. Except for any Losses related to or arising from
breaches of any representations or warranties regarding accounts receivable or
Taxes, the covenants of ABB regarding product liability claims coverage under
the Main Stock Purchase Agreement, and any Losses with respect to any Flakt
Contract Claims, none of which shall be subject to any Threshold Amount, the
indemnified party shall be entitled to indemnification only if the total
aggregate Losses under the Transaction Agreements exceed Two Hundred Fifteen
Thousand US Dollars (US$215,000) (the "THRESHOLD AMOUNT"). Once the Threshold
Amount has been exceeded, the indemnified party shall be entitled to
indemnification for all amounts above the Threshold Amount. Except for any
Losses related to or arising from breaches of any representations or warranties
regarding accounts receivable or Taxes, the covenant of ABB regarding product
liability claims coverage contained in the Main Stock Purchase Agreement, and
any Losses with respect to any Flakt Contract Claims, none of which shall be
subject to any limitation of liability, the total aggregate amount which the
indemnified parties under the Transaction Agreements shall be entitled to be
indemnified under the Transaction Agreements will not exceed thirty percent
(30%) of the total aggregate purchase price pursuant to the Transaction
Agreements. Any payment by ABB pursuant to any claim shall constitute a
reduction of the Purchase Price. Buyer at its option may direct ABB to make the
indemnity payment to Company. The sole remedy of Buyer and ABB for breaches of
this Agreement shall be claims made in accordance with and subject to the
limitations of this Article IV.
4.7 OTHER LIMITATIONS. ABB shall not be liable under this Agreement
for any Losses: (a) with respect to any warranty, representation, indemnity,
covenant, or undertaking in connection with the transaction described herein,
except where the same is expressly contained in this Agreement (Buyer hereby
confirms that it has not relied and will not rely on any warranty,
representation, indemnity, covenant, or undertaking of any person which is not
expressly contained in this Agreement); or (b) resulting from a change in
accounting or in taxation policy or practice of Buyer including the method of
submission of taxation returns introduced following the Closing. Claims under
this Agreement by Buyer may only be made by Buyer or its successors or assigns.
If any Loss of Buyer is a tax deductible item, the amounts payable to Buyer with
respect to the indemnification obligations of ABB hereunder shall be reduced to
the extent that ABB can actually benefit from such tax savings within a
reasonable period of time. As to non-third party claims and claims which do not
involve the noncompetition or nonsolicitation provisions contained in the Main
Stock Purchase Agreement, any breach of this Agreement by ABB which is capable
of remedy shall not entitle Buyer to compensation unless ABB is given written
notice of such breach and such breach is not fully remedied within thirty (30)
days of the date of such notice. To the extent Buyer actually receives any
proceeds, from insurance or otherwise, for a claim for which ABB has indemnified
Buyer, Buyer shall pay to
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ABB the amount of such proceeds if ABB has paid Buyer in full all Losses
attributable to such claim, or Buyer shall reduce the amount of Losses payable
by ABB by the amount of such proceeds. Upon ABB's request, Buyer shall
subrogate any third party claim for which Buyer is seeking indemnification from
ABB to ABB.
ARTICLE V
CONDITIONS PRECEDENT
5.1 CONDITIONS OF OBLIGATIONS OF BUYER. The obligations of Buyer to
effect the transaction set forth herein are as set forth in Sections 8.1
(excluding Section 8.1.4) and 8.2, 8.2.1, 8.2.2 and 8.2.3 of the Main Stock
Purchase Agreement. Buyer shall have received a closing certificate signed on
behalf of ABB by an authorized officer as set forth in Section 8.2.1 and 8.2.2.
5.2 CONDITIONS OF OBLIGATIONS OF ABB. The obligation of ABB to effect
the transaction set forth herein are as set forth in Sections 8.1 (excluding
Section 8.1.4), 8.3, 8.3.1, and 8.3.2 of the Main Stock Purchase Agreement. ABB
shall have received a closing certificate signed on behalf of Buyer by an
authorized officer as set forth in Section 8.3.1 and 8.3.2.
ARTICLE VI
GENERAL PROVISIONS
6.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement survive the Closing as provided
herein.
6.2 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed sufficiently given and served for all purposes
when personally delivered or given by telex or machine-confirmed facsimile or
three business days after a writing is deposited in the United States or Swedish
mail, as applicable, first class postage or other charges prepaid and
registered, return receipt requested, addressed as follows (or at such other
address for a party as shall be specified by like notice):
(a) if to Buyer:
Flow Holdings GmbH (SAGL) Limited Liability Company
X. Xxxxxxxx #00
0000
Xxxxxx, Xxxxxxxxxxx
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WITH A COPY TO:
Xxxxxxx Xxxxx & Xxxxx XXX
0000 Xxxxxxxx Center
000 Xxxxx Xxx.
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
b) if to ABB:
Asea Xxxxx Boveri AB
Xxxxxxxxxxxxxxxx 0, XX-000 00
Xxxxxxxx, Xxxxxx
Attention: General Counsel
Phone: 000 00 00 00 00 00
Fax: 000 00 00 00 00 00
WITH A COPY TO:
Xxx Xxxxxxx
Advokatfirman Sodermark
Xxxxxxxxxxx 0
Xxx 00000, XX 000 00
Xxxxxxxxx, Xxxxxx
Phone: 000 00 0 000 00 00
Fax: 000 00 0 000 00 00
6.3 INTERPRETATION. This Agreement has been negotiated by the
respective parties hereto and their attorneys and the language hereof will not
be construed for or against either party.
6.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to each of the other parties, it being understood that
all parties need not sign the same counterpart.
6.5 MISCELLANEOUS. This Agreement, the Closing Agreement of even date
entered into by the parties and Flow International Corporation and the documents
referred to herein (a) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof; (b) are not intended to confer upon any other person any
rights or remedies hereunder; and (c) shall not be assigned by operation of law
or otherwise except as otherwise specifically provided.
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6.6 TRANSACTIONAL EXPENSES. Whether or not the transactions
contemplated by this Agreement are consummated, each of Buyer and ABB shall pay
its own fees and expenses incident to the negotiation, preparation, execution,
delivery and performance hereof, including, without limitation, the fees and
expenses of its counsel, accountants and other experts.
6.7 GOVERNING LAW. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of Sweden.
6.8 ARBITRATION. Any dispute, controversy or claim arising out of or
relating to this Agreement, or the breach, termination or validity thereof,
shall be finally settled under the Rules of the Arbitration Institute of the
Stockholm Chamber of Commerce presently in force by three (3) arbitrators
selected in accordance with said rules. The place of arbitration shall be
Stockholm, Sweden and the law applicable to the arbitration procedure shall be
determined by referring to the law of the place of arbitration. The English
language shall be used throughout the arbitral proceedings.
6.9 ADDITIONAL AGREEMENTS. In case at any time after the Closing Date
any further action is reasonably necessary or desirable to carry out the
purposes of this Agreement or to vest Buyer with full title to all properties,
assets, rights, approvals, immunities, and franchises, the proper officers and
directors of each party to this Agreement shall take all such necessary action.
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
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SIGNATURE PAGE - ASSET PURCHASE AGREEMENT
IN WITNESS WHEREOF, Buyer and ABB have caused this Agreement to be
executed by their respective and duly authorized officers, have duly executed
this Agreement, all as of the date first written above.
FLOW HOLDINGS GMBH (SAGL) ASEA XXXXX BOVERI AB
LIMITED LIABILITY COMPANY
By By
-------------------------- -------------------------
Xxxx X. Xxxxxx, Anders Navinger,
Authorized Representative President
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