AGREEMENT OF PURCHASE AND SALE OF STOCK
INDEX
ARTICLE I. PURCHASE AND SALE OF STOCK
1.1 Sale and Transfer of Shares
1.2 Consideration
ARTICLE II. SELLERS' REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Sellers
2.2 Organization, Standing and Qualification of Company(ies)
2.3 Capital Structure.
2.4 Centradas' Title to Shares.
2.5 Subsidiaries.
2.6 Financial Statements.
2.7 Absence of Material Financial Changes.
2.8 Absence of Undisclosed Liabilities.
2.9 Tax Returns and Audits.
2.10 Inventory.
2.11 Other Tangible Personal Property.
2.12 Accounts Receivable.
2.13 Title to Assets.
2.14 Customers and Sales.
2.15 Suppliers and Purchases.
2.16 Insurance Policies.
2.17 Litigation.
2.18 Default.
2.19 Authority and Consents.
2.20 Corporate Documents.
2.21 Employment Contracts and Benefits.
2.22 Bank Accounts.
2.23 Labor Matters.
2.24 Environmental Matters.
2.25 Compliance.
2.26 Intercompany Liabilities
2.27 Disclosure.
ARTICLE III. IMPCO'S REPRESENTATIONS AND WARRANTIES
3.1 Organization, Good Standing, Approval.
3.2 Approval.
ARTICLE IV. SELLERS' AND MEDIA'S OBLIGATIONS PRIOR TO CLOSING DATE
4.1 IMPCO's Access to Premises and Information.
4.2 Conduct of Business in Normal Course.
4.3 Preservation of Business and Relationships.
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4.4 Corporate Matters.
4.5 Maintenance of Insurance.
4.6 Employees and Compensation.
4.7 New Transactions.
4.8 Dividends, Distributions and Acquisitions of Stock.
4.9 Payment of Liabilities and Waiver of Claims.
4.10 Existing Agreements.
ARTICLE V. IMPCO'S OBLIGATIONS PRIOR TO CLOSING DATE
5.1 Information to be held in Confidence.
ARTICLE VI. COVENANTS AND AGREEMENTS BETWEEN THE PARTIES
6.1 Lease of Real Property.
6.2 Insurance Services.
6.3 Loan Agreement.
6.4 Distribution Agreement.
6.5 Shareholders Agreement.
6.6 Ancillary Agreements.
6.7 MEDIA's Articles of Association
6.8 Interim Dividend
6.9 Sharing Arrangements
6.10 Management Services
ARTICLE VII. THE CLOSING
7.1
ARTICLE VIII. PARTIES OBLIGATIONS AFTER CLOSING...............
8.1 Sellers' Indemnity..............................
8.2 The Sellers Tax Obligations.....................
8.3 IMPCO's Indemnity...............................
8.4 Limitation of Indemnities.......................
8.5 Change Articles.................................
ARTICLE IX. REMEDIES........................................
9.1 Waiver of Rescission Rights.....................
9.2 Recovery of Litigation Costs....................
ARTICLE X. NATURE AND SURVIVAL OF INDEMNITIES, REPRESENTATIONS
AND OBLIGATIONS.................................
10.1
ARTICLE XI. PUBLICITY.......................................
11.1.....................................................
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ARTICLE XII. MISCELLANEOUS...................................
12.1 Fees............................................
12.2 Expenses........................................
12.3 Effect of Headings..............................
12.4 Parties in Interest.............................
12.5 Assignment......................................
12.6 Counterparts....................................
12.7 Notices.........................................
12.8 Governing Law; Jurisdiction.....................
12.9 Severability....................................
12.10 Failure to Enforce..............................
12.11 Force Majeure...................................
12.12 Definitions.....................................
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LIST OF SCHEDULES
Schedule 2.2.....List of Power of Attorneys
Schedule 2.6.....Financial Statements
Schedule 2.7.....Material Financial Changes
Schedule 2.9.....Tax Disclosure
Schedule 2.14a...List of current customers of MEDIA
Schedule 2.14b...List of restictive trade agreements and other agreements
Schedule 2.15....List of current suppliers of MEDIA
Schedule 2.16....Description of insurance policies held by Centradas, on
behalf of MEDIA
Schedule 2.17....Litigation wherein MEDIA is presently engaged
Schedule 2.21....List of all employment contracts and other agreements of
MEDIA
Schedule 2.22....List of MEDIA's bank accounts
Schedule 6.1.....The Lease Agreements
Schedule 6.3.....The Loan Agreement
Schedule 6.4.....The Distribution Agreement
Schedule 6.5.....The Shareholders Agreement
Schedule 6.7a....draft Articles of Association Media-HOLLAND
Schedule 6.7b....draft Articles of Association Media-GERMANY
Schedule 6.7c....draft Articles of Association Media-FRANCE
Schedule 6.8.....Shareholders Resolution Centradas interim-dividend
Schedule 6.9.....Personnel and facilities Sharing Arrangements
Schedule 6.10....Agreement on management services Xx. Xxxxxx
Schedule 7.2f....draft notarial deed of transfer of Shares
Schedule 7.2k....draft shareholders resolution appointment of Supervisory
directors
Schedule 7.2l I..draft shareholders resolution amendment Articles of
Association Media-HOLLAND
Schedule 7.2l II.draft Articles of Association Media-HOLLAND
Schedule 8.5a....draft shareholders resolutions amendment of Articles of
Association Media-FRANCE and Media-GERMANY
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AGREEMENT OF PURCHASE AND SALE OF STOCK
This Agreement is made as of the 31st day of October 1995 by and between:
1. IMPCO Technologies, Inc., a corporation organized under the law of the
State of Delaware, U.S.A. having its principal place of business at
00000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000-0000 (hereinafter
referred to as "IMPCO").
2. Depa Holding B.V., a private company organized under the laws of the
Netherlands, having its principal place of business at Xxxxxxxxxx 0,
0000 XX Xxxxxx, Xxx Xxxxxxxxxxx (hereinafter referred to as the
"Holding Co.")
3. Centradas B.V., a private company organized under the laws of The
Netherlands, having its principal place of business at Van Xxxxxxxxxx
00, 0000 XX Xxxxxxxx X.X., Xxx Xxxxxxxxxxx, hereinafter referred to as
"Centradas",
the parties referred to under 2 and 3 hereinafter collectively also referred to
as "Sellers", and
4. Technisch Bureau Media B.V., a private company organized under the
laws of The Netherlands, having its principal place of business at Xxx
Xxxxxxxxxx 0/00, 0000 XX Xxxxxxxx Z.H., The Netherlands, hereinafter
referred to as "Media-HOLLAND".
WITNESSETH
WHEREAS, Holding Co. through its wholly owned subsidiary Centradas, owns
100% of the issued and outstanding shares Media-HOLLAND. Media-HOLLAND owns
100% of the issued and outstanding shares of Technisch Bureau Media GmbH,
hereinafter referred to as "Media-GERMANY". Media-HOLLAND also owns 99% of the
issued and outstanding shares of Bureau Technique Media S.A.R.L. hereinafter
referred to as "Media-FRANCE." Media-GERMANY owns 1% of the issued and
outstanding shares of Media-FRANCE. Media-HOLLAND, Media-GERMANY and Media-
FRANCE are hereinafter collectively referred to as "MEDIA." Media-FRANCE and
Media-GERMANY collectively also referred to as the "Subsidiaries";
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WHEREAS, Holding Co. has agreed to make available to Media-HOLLAND on the
basis of certain terms and conditions an amount of 4,250,000 Dutch guilders by
way of loan; and
WHEREAS, IMPCO desires to purchase from Centradas and it desires to sell to
IMPCO 51% of MEDIA's equity for the consideration and upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations, and warranties contained in this Agreement, the parties agree
as follows:
ARTICLE I. PURCHASE AND SALE OF STOCK
--------------------------------------
1.1 SALE AND TRANSFER OF SHARES. Subject to the terms and conditions set
forth in this Agreement, on the Closing Date Centradas will sell and convey to
IMPCO 51% of the outstanding stock of MEDIA consisting of 255 shares with a
nominal value of NLG 500 each in Media-HOLLAND (the "Shares") and IMPCO will
purchase the Shares from Centradas. At the Closing, a notarial deed of transfer
of the Shares will be executed in accordance with Section 7.1 herein.
Simultaneously with and after the transfer of the Shares, the Sellers will
execute and do, or cause to be executed and done all such further acts and
things which may be requisite under the applicable laws in order to effect the
transfer of the Shares or for giving effect to this Agreement and take all
additional steps as may be required to put IMPCO in possession and operating
control of the assets, properties and business of MEDIA, subject to the terms
and conditions here-of.
1.2 CONSIDERATION. As full payment for the transfer of the Shares, to IMPCO,
IMPCO shall pay an aggregate sum of Three million, one-hundred, eighty-seven
thousand, five hundred Dutch guilders (NLG 3.187.500) payable by delivery to
Centradas at the Closing in accordance with Section 7.1 herein.
ARTICLE II. SELLERS' REPRESENTATIONS AND WARRANTIES
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2.1 REPRESENTATIONS AND WARRANTIES OF THE SELLERS. The Sellers represent and
warrant that the matters set forth in this Article II are true, accurate,
complete and not misleading as per the date of this Agreement and as per the
Closing Date.
2.2 ORGANIZATION, STANDING AND QUALIFICATION OF COMPANY(IES). Media-HOLLAND
is a company duly organized and validly existing under the laws of the country
of the Netherlands and has all necessary corporate powers and authority to own
its properties and carry on its business as owned and operated by it. Media-
GERMANY is a company duly organized and validly
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existing under the laws of Germany and has all necessary corporate powers and
authority to own its properties and carry on its business as owned and
operated by it. Media-FRANCE is a company duly organized and validly existing
under the laws of France and has all necessary corporate powers and authority
to own its properties and carry on its business as owned and operated by it.
MEDIA sells its products directly to its customers from its facilities, in the
Netherlands, Germany and France or indirectly through distributors and
representatives. MEDIA has no material property nor offices in any country
except the Netherlands, Germany and France, and MEDIA has no claim of any
material nature that it desires to pursue against a party in any foreign
jurisdiction. Neither the nature of the business of MEDIA nor the ownership of
its properties requires MEDIA to be qualified in any jurisdiction, other than
those stated above, in which failure to so qualify would have a material
adverse effect on MEDIA. MEDIA is not insolvent, has not been dissolved
("ontbonden"), declared bankrupt ("failliet verklaard"), and no action or
request is pending to declare MEDIA bankrupt and MEDIA has neither filed a
request for, nor has been granted, a moratorium or a suspension of payment
("surseance van betaling"). No person holds a power of attorney or is
authorised to dispose of any funds of MEDIA or to commit in any way except as
set forth in Schedule 2.2.
2.3 CAPITAL STRUCTURE. The authorized capital stock of Media-HOLLAND
consists of 2.000 shares of common stock of NLG 500 nominal value each, of
which 500 are validly issued and outstanding. The authorized capital stock of
Media-GERMANY consists of DM 50,000. The authorized capital stock of Media-
FRANCE consists of 500 shares of common stock, of which 500 are validly issued
and outstanding. All of the outstanding shares have been validly issued and
are fully paid and nonassessable. There are no outstanding subscriptions,
options, rights, warrants, convertible securities, or other agreements or
commitments obligating MEDIA to issue or to transfer any additional shares of
its capital stock of any class.
2.4 CENTRADAS' TITLE TO SHARES. Centradas is a company duly organized and
validly existing, under the laws of the Netherlands. Centradas is the owner,
beneficially and of record, of the Shares free and clear of all liens,
encumbrances, security agreements, equities, options, claims, charges, and
restrictions other than those restrictions imposed on the transfer of the
Shares by the laws of the Netherlands. Centradas has full power and is
authorized to transfer the Shares to IMPCO without obtaining the consent or
approval of any other person, entity, or governmental authority.
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2.5 SUBSIDIARIES. Media-HOLLAND does not own, directly or indirectly, any
interest or investment (whether equity or debt) in any corporation,
partnership, business, trust, or other entity, except for the Subsidiaries. All
the issued and outstanding shares of the Subsidiaries are directly or
indirectly owned by Media-HOLLAND, and are free and clear of all liens,
encumbrances, and security agreements, equities, options and claims. The
Articles of Association and all other legally required corporate records of the
Subsidiaries have been made available or furnished to IMPCO.
2.6 FINANCIAL STATEMENTS. Schedule 2.6 to this Agreement sets forth an
unaudited consolidated/ "combined" balance sheet of MEDIA as of July 31, 1995,
and an unaudited consolidated/"combined" income statement of MEDIA for the
seven-months ended July 31, 1995, herein after collectively referred to as
"Financial Statements". The Financial Statements of Schedule 2.6 are true,
complete and correct in all material respects and give a true and fair view of
the consolidated/"combined" financial position and results of operations of
MEDIA as of July 31, 1995. The Financial Statements comply with generally
accepted accounting principles in the Netherlands on bases and accounting
principles which have been consistently applied by MEDIA in the preparation of
its statutory accounts for the preceding five financial years. The Financial
Statements are not affected by any extraordinary or non-recurring items and
disclose in all material respects the assets and liabilities (including
unquantified or disputed liabilities) of MEDIA as at July 31, 1995. The books
of account for MEDIA from which the Financial Statements were prepared
accurately reflect in all material respects, all of MEDIA's items of income
and expense, all of its assets and liabilities and all of its accruals and
reserves.
2.7 ABSENCE OF MATERIAL FINANCIAL CHANGES. Except as set forth in
Schedule 2.7, since July 31, 1995, MEDIA has not:
(a) incurred any material obligation or liability, whether absolute
or contingent, except obligations and liabilities incurred in the
ordinary course of their respective businesses;
(b) discharged or satisfied any material lien or encumbrance, or paid
any material obligation or liability, whether absolute or
contingent, other than current liabilities having become due and
payable since that date in the ordinary course of business of
MEDIA and/or obligations and liabilities under contracts referred
to in any Schedule annexed hereto;
(c) made or agreed to make or materially change any wage, salary, or
employee benefit increases;
(d) sold or transferred any of their material intangible or tangible
assets or cancelled any material debts or claims, except in each
case in the ordinary course of business;
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(e) sold, assigned, or transferred any patent, tradename, trademark
or copyright;
(f) suffered any extraordinary losses or waived any rights of
substantial value;
(g) suffered any loss, damage, or destruction to any of their
properties due to fire or other casualty, whether or not insured,
which loss, damage or destruction materially and adversely
affects their businesses, properties or operations;
(h) issued or sold or agreed to issue or sell any shares of capital
stock or any option, warrant or right in respect to such capital
stock, or any promissory notes, evidences of indebtedness or any
other securities, or reclassified or agreed to reclassify its
capital stock;
(i) mortgaged, pledged or subjected to lien, charge or any other
encumbrance any of their tangible or intangible assets;
(j) made or agreed to make capital expenditures in any one case or
in the aggregate of more than 25,000 Dutch guilders;
(k) declared or paid any dividends or other distributions of any kind
whether out of profits or capital and no right to dividends in
connection with or on the Shares have been assigned novated or
transferred to any other person, except for the interim dividend
to Centradas, as referred to in Section 6.9 of this Agreement;
(l) paid, distributed, advanced or loaned any money or agreed to pay,
distribute, advance or loan money, to any of their directors,
officers or employees or any other person or legal entity ,
except in the ordinary course of business;
(m) amended their Articles of Association except with the consent of
IMPCO;
(n) conducted their business otherwise than in its ordinary and usual
manner; or
(o) paid or agreed to pay any fees or costs, including professional
fees, incurred in connection with this Agreement or the
transactions contemplated hereby, except for expenses paid or
accrued for in the Closing Statements.
2.8 ABSENCE OF UNDISCLOSED LIABILITIES. MEDIA does not have any material
debt or liability of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or to become due, that is not fully and correctly
reflected or reserved against in the Financial Statements, except for those
that may have been incurred in the ordinary course of business after July 31,
1995. Except as set forth in Schedule 2.7 to this Agreement, such debts,
liabilities, and obligations incurred after such date are usual and normal in
amount both individually and in the aggregate.
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2.9 TAX RETURNS AND AUDITS. When used in this Agreement, "Tax" means all
local (municipal) State provincial, national or foreign taxes and other
impositions and social security contributions, whether direct or indirect, due
or payable to or to be raised on previous periods, or claimed or disposed by,
the Dutch or any other government or any subdivision thereof, whether by
withholding or otherwise, including any impost, duty, levy, excise, charge,
premium, tax or social security contribution and any interest or penalty
relating thereto. MEDIA has duly and timely filed or caused to be filed all Tax
and other returns required by law and/or regulations and has duly and timely
paid, withheld, or made provision for the payment of all Tax. No objection
("bezwaar") or appeal ("beroep" or "cassatie") is presently pending or to the
best of Sellers' knowledge will be filed or may have to be filed with the Tax
authorities or the competent Court or Courts. MEDIA has sufficient records and
accounts as required by the tax and social security laws of the Netherlands and
of any other relevant jurisdictions. The competent Tax authorities have never
rejected any records and accounts of MEDIA as the basis for the computation of
any Tax liability. Proper and accurate amounts have been withheld by MEDIA from
its employees for all periods in complete compliance with the Tax laws, and
MEDIA has withheld such amounts as required and such withholdings have been
timely paid by MEDIA to the respective governmental agencies. There are no
known present disputes as to the Tax position of MEDIA or any of its
properties, assets or income or regarding any Tax returns filed by MEDIA nor
are there any audits or investigations by any Tax authorities presently being
made or except as disclosed in Schedule 2.9 expected, nor are there requests
for exchange of information pending regarding any Taxes relative to MEDIA or
any of its business relations. No collection procedure have been initiated
against MEDIA or any of its properties, assets or income for the account of any
Tax. MEDIA has not received any reminders ("aanmaningen") or warrants
("dwangbevelen"). To the best of Sellers knowledge MEDIA nor any of its
managing directors in their capacity of managing directors have at any time
been the subject of a criminal investigation relating to or involving Tax. The
Sellers and MEDIA have not concluded any agreement, ruling or compromise with
any Tax authority which may affect MEDIA's Tax position, nor is Media subject
to any special Tax regime. The Financial Statements reflect in all material
respects the amount of Tax payable by MEDIA. In the Financial Statements
adequate reserves have been provided for any contingent or deferred Tax
("latente belastingen"). As of the Closing Date, the Sellers shall release
MEDIA from any liability under any Tax sharing agreement among the Sellers and
MEDIA.
Except as otherwise provided below, the Sellers shall have the right to direct
the handling of all matters relating to Tax attributable to periods ending on
or before the Closing Date for which the Sellers are liable for under Section
10.2 hereof, including the right to prosecute all administrative and judicial
remedies, to settle all issues and to enter into closing agreements; provided
that (i) the Sellers shall only after the prior
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written consent of IMPCO enter into any settlement or other agreement that may
materially increase Tax liabilities of MEDIA for taxable years ending after the
Closing Date; (ii) the Sellers shall inform MEDIA, and MEDIA shall inform the
Sellers and IMPCO, upon receipt of any notices, assessments, or the like, that
will materially affect the Tax liability of MEDIA; (iii) in filing any Tax
return involving MEDIA, the Sellers shall not, except as may be required by law
or any governmental Taxing or other agency, materially deviate form the manner
in which any item was reported in prior years without the written consent of
IMPCO, which shall not be unreasonably withheld.
2.10 INVENTORY. The inventories of MEDIA, including without limitation, raw
materials, work in process, finished goods and literature (collectively called
"Inventory") reflected in MEDIA's balance sheet as of July 31, 1995, included
in the Financial Statements, consist of items that are of good and merchantable
quality and are usable and saleable in the ordinary course of business by
MEDIA, except for an amount represented by the inventory reservation set forth
in such balance sheet.
Except for sales made in the ordinary course of business since July 31, 1995,
all material Inventory is the absolute property of MEDIA. No items of Inventory
are subject to security interests to the effect that it would substantially
affect the business interests of MEDIA. The value of Inventory as reflected in
the Financial Statements is determined on the basis of a weighted-average cost
consistent with prior years.
2.11 OTHER TANGIBLE PERSONAL PROPERTY. The books and records of MEDIA,
contain a reasonable description of all trucks, automobiles, and material items
of machinery and equipment. No material tangible property used by MEDIA in
connection with its business is held under any lease, security agreement,
conditional sales contract, or other title retention or security arrangement
and is located other than in the possession and under the control of MEDIA. The
tangible property owned or possessed by MEDIA constitutes all such tangible
personal property necessary for the conduct by MEDIA of its business as now
conducted.
2.12 ACCOUNTS RECEIVABLE. All trade accounts receivable of MEDIA reflected
in the balance sheet of MEDIA as of July 31, 1995, included in the Financial
Statements, arose from valid sales in the ordinary course of business and will
be fully recoverable in the ordinary course of business and in any event within
150 days after they have become due and payable. Such balance sheet reflects
adequate reserves for doubtful accounts and trade discounts, on a basis
consistent with that of prior years.
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Receivables not collected after 150 days after they become due and payable will
be assigned to Centradas against payment of the bookvalue of such receivables
as per July 31, 1995 (the nominal amount less possible provisions for such
receivable), under deduction of payments on such receivable received by MEDIA.
2.13 TITLE TO ASSETS. MEDIA has good and marketable title to all their
material assets, whether real, personal, mixed, tangible, and intangible. Such
assets constitute all the assets that are used in the business of MEDIA and are
free and clear of mortgages and pledges, and to the best of Sellers' knowledge
after due and diligent enquiry of liens, charges, or encumbrances. The
equipment and other tangible assets of MEDIA are in good operating condition
and repair and are adequate for the uses to which they are being put and none
of such property is in need or maintenance or repairs except for ordinary,
routine maintenance and normal wear and tear.
2.14 CUSTOMERS AND SALES. Schedule 2.14a to this Agreement is a list of
current customers of MEDIA which on an individual basis have made purchases
exceeding 100,000 Dutch guilders during the 12 months ended December 31, 1994.
To the best knowledge of the Sellers, there are no facts or circumstances,
indicating that any of these customers intend to cease doing business with
MEDIA or to materially alter the amount of business they are presently doing
with MEDIA. Except as disclosed in Schedule 2.14b, MEDIA has not been and is
not a party to any agency, distributorship, marketing, purchasing,
manufacturing or licensing agreement or arrangement or any restrictive trading
or other agreement or arrangement which in any way has restricted its freedom
to carry on the whole or any part of its business or to use or exploit its
assets in any part of the world in such manner as it thought or may think fit.
To the best of Sellers' knowledge MEDIA has not manufactured or sold products
or provided services which or are or will become in any material respect faulty
or defective.
Except in the ordinary course of business MEDIA has not accepted any liability
or obligation to service, repair, maintain, take back or otherwise do or not do
anything in respect of any goods or products that would apply after the goods
or products have been delivered by it.
2.15 SUPPLIERS AND PURCHASES. Schedule 2.15 to this Agreement is a list of
current suppliers of MEDIA which on an individual basis have sold inventory or
services exceeding 100,000 Dutch guilders during the 12 months ended December
31, 1994. To the best knowledge and belief of the Sellers, there are no facts
or circumstances, indicating that any of these suppliers intend to cease doing
business with MEDIA or to materially alter the amount of business they are
presently doing with MEDIA.
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2.16 INSURANCE POLICIES. Schedule 2.16 to this Agreement is a description of
all insurance policies presently in effect and held by Centradas or other third
parties, on behalf of MEDIA, concerning its businesses and properties and
liability policies held by MEDIA and related agreements in the possession of
MEDIA have been furnished or made available to IMPCO. MEDIA, or the Sellers on
behalf of MEDIA, have maintained and now maintain (1) property insurance on all
of MEDIA's material assets and business of a type customarily insured, covering
property damage and loss of income by fire or other casualty, and (2) liability
insurance protection against liabilities, claims and risks against which it is
customary to insure, including consequential damages and economic loss and all
forms of legal liability ("wettelijke aansprakelijkheid"). No such policy is in
default for failure to pay premiums nor is any claim pending under such policy
and to the best of Sellers' knowledge there is nothing that would give rise to
a claim under such policies or which would cause any of them to be or become
void or voidable.
2.17 LITIGATION. Except as disclosed in Schedule 2.17, MEDIA is not engaged
in any litigation or arbitration proceeding as plaintiff or defendant except
for debt collection of sums not exceeding 25,000 Dutch guilders and Sellers are
not aware of any pending, or threatened suit, action, arbitration, or legal,
administrative or other proceeding, or governmental investigation against or
affecting MEDIA, assets and financial condition. To the best knowledge and
belief of the Sellers, no party has been physically injured and no property has
been damaged by MEDIA, or by any of its employees or officers, which would give
rise to any material claim against MEDIA nor is presently engaged in any legal
action to recover damages sustained by any of them or to recover any moneys of
a material amount due to any of them.
2.18 DEFAULT. Neither the execution nor the performance of any obligations
under this Agreement will result in a breach or violation of any term or
provision of or constitute a material default under any agreement or instrument
to which MEDIA is a party or under which MEDIA has any rights or obligations
and which such default or violation would have a materially adverse effect on
the business, properties, or financial condition of MEDIA.
2.19 AUTHORITY AND CONSENTS. The Sellers and MEDIA have the right, power,
legal capacity, and authority to enter into, and perform its respective
obligations under, this Agreement including the Ancillary Agreements. The
execution and delivery of this Agreement, and documents contemplated herein, by
the Sellers and MEDIA have been duly authorized by all necessary corporate
actions.
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2.20 CORPORATE DOCUMENTS. The Sellers and MEDIA have furnished or made
available to IMPCO for its examination (i) true, correct and complete copies of
the Articles of Association of MEDIA; (ii) the minute books of MEDIA and other
legally required corporate documents; and (iii) the shareholders register of
MEDIA setting forth all transfers of any shares.
2.21 EMPLOYMENT CONTRACTS AND BENEFITS. Schedule 2.21 to this Agreement
constitutes a list of all MEDIA's employment contracts or oral agreements,
pension, bonus, social benefit plans, guaranteed vacations, sick pay,
termination pay, leave of absence or other material written agreements, or
other material oral agreements, providing for employee (either active or
retired) remuneration or benefits. MEDIA is not in default under any of these
agreements, nor has MEDIA incurred liabilities under these agreements or
arrangements in excess of 25,000 Dutch guilders, except as otherwise disclosed
herein. Copies of all such agreements or arrangements have been provided or
made available to IMPCO. Other than disclosed in Schedule 2.21 or reserved for
in the Financial Statements, MEDIA is not a party to or makes or is required to
make employer contributions to any pension, profit sharing, retirement
compensation, bonus, severance, medical or life insurance or other employee (or
ex-employee) welfare or benefit plans, agreements or arrangements maintained
for the benefit of any of the employees or any payment of "back-service"
contributions now or upon retirement, death or disability of any of its
employees.
2.22 BANK ACCOUNTS. Schedule 2.22 to this Agreement constitutes a list of
all MEDIA's accounts with banks or other financial institutions, including
account names, addresses, and account numbers, in which MEDIA has an account,
deposit, or safe deposit box, with the names of the person authorized to draw
on these accounts or deposits or to have access to these boxes.
2.23 LABOR MATTERS. There are no works council, whether voluntarily or
involuntary, strikes, slowdowns, organizational efforts, discrimination
charges, or other labor disputes pending or threatened against MEDIA.
2.24 ENVIRONMENTAL MATTERS. To the best knowledge and belief of the Sellers
no hazardous substance has been generated, manufactured, released, refined
transferred, stored, treated, handled, managed, discharged, used or disposed of
onto, upon, over, beneath or from the real properties leased or used by MEDIA.
There are no claims outstanding from any employees in relation to any disease
or illness contracted as a result of environmental matters in the course of
their employment by MEDIA.
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2.25 COMPLIANCE. MEDIA has complied with all material laws, regulations and
orders of a national or supranational nature applicable to it or its business
and has obtained all requisite permits, licences, authorizations, consent or
other approval in order to conduct its business as it is presently conducted
and has at all the times complied with the material terms and conditions of
such permits, licences, authorizations and consents including but not limited
to environments licences. MEDIA has not received any notice or other
communication from which is appears that it may be or is alleged to be in
violation of any applicative laws or licences or that any such licence may be
subject to modification, suspension or revocation and to the best of Sellers'
knowledge there are no circumstances likely to give rise to any such violation
or modification, suspension or revocation MEDIA is not (nor has been) a party
to any arrangement, agreement, concerted practice or course of conduct which
contravenes or infringes Articles 85 or 86 of the Treaty establishing the
European Community or any other anti-trust or similar legislation in any
jurisdiction in which MEDIA carries on business or has assets or sales.
2.26 INTERCOMPANY LIABILITIES. MEDIA has been released from any and all
liabilities relating to or in connection with the liabilities of companies
belonging to the group of companies to which the Sellers belong.
2.27 DISCLOSURE. All material facts and circumstances have been disclosed by
the Sellers to IMPCO or IMPCO's advisors which may reasonably be required to
enable IMPCO to verify and judge the desirability and appropriateness of
entering into this Agreement.
ARTICLE III. IMPCO'S REPRESENTATIONS AND WARRANTIES
---------------------------------------------------
IMPCO represents and warrants the accuracy and completeness of the matters
set forth in this Article III are true, accurate, complete and not misleading
as per the date of this Agreement and as per the Closing Date.
3.1 ORGANIZATION, GOOD STANDING, APPROVAL. IMPCO is a corporation duly
organized, validly existing, and in good standing under the laws of the state
of Delaware and has all necessary corporate powers and authority to own its
properties and carry on its business as owned and operated by it. The
execution and delivery of this Agreement, including the Ancillary Agreements,
and the consummation of the transaction contemplated by this Agreement by IMPCO
have been duly authorized, will not result in any breach of or violate or
constitute a default under their respective Articles of Incorporation or By-
Laws, and no further corporate authorization, including any necessary
shareholder approval, is necessary on the part of IMPCO.
Page 15
3.2 APPROVAL. No consent, approval, or authorization of, or declaration,
filing, or registration with, any United States federal or state governmental
or regulatory authority is required to be made or obtained by IMPCO in
connection with the execution, delivery, and performance of this Agreement,
including the Ancillary Agreements and the consummation of the transactions
contemplated by this Agreement, except for compliance with the filing
requirements of the U.S. Securities and Exchange Commission.
ARTICLE IV. SELLERS' AND MEDIA'S OBLIGATIONS BETWEEN THE DATE HEREOF AND
-------------------------------------------------------------------------
THE CLOSING DATE
----------------
4.1 IMPCO'S ACCESS TO PREMISES AND INFORMATION. IMPCO and its counsel,
accountants, and other representatives shall, subject to the confidentiality
covenant in the Letter of Intent between the parties dated August 14, 1995,
have full access during normal business hours to all properties, books,
accounts records, contracts, and documents of or relating to MEDIA. The Sellers
and MEDIA shall furnish or cause to be furnished to IMPCO and its
representatives all data and information concerning the business, finances, and
properties of MEDIA that may be reasonably be requested.
4.2 CONDUCT OF BUSINESS IN NORMAL COURSE. The Sellers and MEDIA agree that
MEDIA will carry on its business and activities diligently and in substantially
the same manner as previously has been carried out and shall not make or
institute any unusual or novel methods of manufacture, purchase, sale, lease,
management, accounting, or operation that may vary materially from those
methods used by MEDIA as of the date of this Agreement.
4.3 PRESERVATION OF BUSINESS AND RELATIONSHIPS. The Sellers and MEDIA agree
that MEDIA shall use its commercially reasonable efforts to preserve its
business organizations intact, to keep available to MEDIA its present
employees, directors, and key employees and to preserve its present relations
with suppliers, customers, and others having business relationships with it.
4.4 CORPORATE MATTERS. The Sellers agree that MEDIA will not (i) amend its
Articles of Association except to the extent approved by IMPCO; (ii) issue any
shares of its capital stock; (iii) issue or create any warrants, obligations,
subscriptions, options, convertible securities, or other commitments under
which any additional shares of its capital stock of any class might be directly
or indirectly authorized, issued, or transferred from treasury; or (iv) agree
to do any of the acts listed above.
Page 16
4.5 MAINTENANCE OF INSURANCE. The Sellers agree to use commercially
reasonable efforts to continue to carry their existing insurance, on behalf of
MEDIA, on the same basis as presently carried.
4.6 EMPLOYEES AND COMPENSATION. The Sellers and MEDIA agree that MEDIA will
not do, or agree to do any of the following acts without the written consent of
IMPCO, which consent shall not unreasonably be withheld: (i) make any material
change in compensation payable or to become payable by either of them, to any
officer, employee, sales agent or representatives except in the ordinary course
of business; or (ii) make any material change in benefits payable to any
Managing Director, employee, sales agent, or representative under any bonus or
pension plan or other contract or commitment.
4.7 NEW TRANSACTIONS. The Sellers and MEDIA agree that MEDIA will not do or
agree to do, without IMPCO's written consent, which shall not be unreasonably
be withheld, any of the following acts:
(1) Enter into any contract commitment, or transaction not in the
usual and ordinary course of business provided however, that no
such contracts, commitment or transaction in excess of 100,000
Dutch guilders shall be considered to be in the ordinary course
of business; or
(2) Make any capital expenditures in excess of 50,000 Dutch guilders,
or enter into any lease of equipment or property under which the
annual lease charge is in excess of 50,000 Dutch guilders; or
(3) Sell or dispose of any capital assets with a net book value
exceeding 25,000 Dutch guilders, individually or in the
aggregate.
4.8 DIVIDENDS, DISTRIBUTIONS AND ACQUISITIONS OF STOCK. The Sellers and
MEDIA agree that MEDIA will not:
(1) Declare, set aside, or make any distribution in respect of its
capital stock, except for the Interim Dividend as referred to in
Section 6.8;
(2) Directly or indirectly purchase, redeem, or otherwise acquire any
shares of its capital stock;
(3) Directly or indirectly pay, distribute or advance any money to
either MEDIA's or Sellers' Managing Directors, Supervisory
Boards, except any payments in the ordinary course of business;
(4) enter into any agreement obligating it to do any of the
foregoing prohibited acts.
4.9 PAYMENT OF LIABILITIES AND WAIVER OF CLAIMS. Except in the ordinary
course of business, the Sellers and MEDIA agree that MEDIA will not, or agree
not to do, any of the following acts: (i) pay any obligation or liability,
fixed or contingent, other than current liabilities; (ii) waive or compromise
Page 17
any right or claim; or (iii) cancel, without full payment, any note, loan, or
other obligation owing to MEDIA.
4.10 EXISTING AGREEMENTS. Except in the ordinary course of business, the
Sellers and MEDIA agree that MEDIA will not modify, amend, terminate any of its
existing contracts or agreements, or agree to do any of those acts, which will
have a material adverse affect on the respective businesses of MEDIA.
ARTICLE V. IMPCO'S OBLIGATIONS PRIOR TO CLOSING DATE
-----------------------------------------------------
5.1 INFORMATION TO BE HELD IN CONFIDENCE. IMPCO agrees that, unless and
until the Closing has been consummated, IMPCO and their officers, directors,
and other representatives strictly adhere to the confidentiality covenant as
set out in the Letter of Intent between the parties dated August 14, 1995.
ARTICLE VI. COVENANTS AND AGREEMENTS BETWEEN THE PARTIES
---------------------------------------------------------
6.1 LEASE OF REAL PROPERTY. Effective upon the Closing Date, the Sellers
undertake to cause Beheba B.V., a private company organized in the country of
Netherlands, having its principal place of business at Xxxxxxxxxx 0, 0000 XX
Xxxxxx, Xxxxxxxxxxx, (hereinafter referred to as the "Lessor") with the same
principals as the Holding Co. to enter into lease agreements with respect to
the business properties presently in use by MEDIA, located at the Xxx
Xxxxxxxxxx 0-00, 0000 XX Xxxxxxxx and at Xxxxxxxxxxxx 00, 0000 XX Xxxxxxxx.
MEDIA shall lease the above specified two premises at an annual rental of
200,000 Dutch guilders for a period of five years, with an option to renew for
five subsequent years, all under terms and conditions as set out in the Lease
Agreements, substantially in the form as attached hereto as Schedule 6.1 (the
"Lease Agreements").
6.2 INSURANCE SERVICES. Centradas has obtained and paid for certain
insurance policies for the benefit and on behalf of MEDIA, including those set
forth in Schedule 2.16 of this Agreement. Effective upon the Closing Date,
Centradas shall continue to carry MEDIA's existing insurance, on behalf of
MEDIA, on the same basis as presently carried and MEDIA shall be charged for
the premiums at the current market rates with current market brokerage
commission equal to the rates charged to other clients of Centradas.
6.3 LOAN AGREEMENT. Effective upon the Closing Date Holding Co. shall make
available to Media-HOLLAND a loan in the amount of 4.250,000 (four million, two
hundred and fifty thousand) Dutch guilders on the terms and conditions as set
out in a loan agreement, in the form attached hereto as Schedule 6.3 (the "Loan
Agreement").
Page 18
6.4 DISTRIBUTION AGREEMENT. Effective upon the Closing Date IMPCO and MEDIA
shall enter into a distribution agreement setting out the terms and conditions
between the parties, in the form as attached hereto as Schedule 6.4 (the
"Distribution Agreement").
6.5 SHAREHOLDERS AGREEMENT. Effective upon the Closing Date IMPCO and the
Sellers shall enter into a shareholders agreement setting out the terms,
conditions and understandings between the parties as shareholders of MEDIA
(hereinafter to be referred to as the "Shareholders Agreement"), in the form as
attached hereto as Schedule 6.5.
6.6 ANCILLARY AGREEMENTS. The Lease Agreements referred to in Section 6.1,
the Loan Agreement referred to in Section 6.3, the Distribution Agreement
referred to in Section 6.4 and the Shareholders Agreement referred to in
Section 6.5 are collectively referred to herein as "Ancillary Agreements".
6.7 MEDIA'S ARTICLES OF ASSOCIATION. Parties agree that the Articles of
Association of Media-HOLLAND and the Subsidiaries shall be amended in order to
read as per the drafts attached hereto as Schedule 6.7a, 6.7b and 6.7c.
Preceding implementation of the amended Articles of Association and effective
the Closing Date, parties shall observe the provisions of amended Articles of
Association as per Schedule 6.8a, 6.8b and 6.8c as if the amendment had already
been effectuated and shall do all such acts and things to have the amendments
processed at the shortest possible notice.
6.8 INTERIM DIVIDEND. Centradas is entitled to the profits of MEDIA up to
October 31, 1995 as reflected in the Closing Statements certified by Deloitte &
Touche, accountants, which profits minus a 35%-reserve for corporate income tax
and minus an amount of NLG 172.442 for backservice pension liabilities will be
made available to Centradas by way of interim dividend and in connection
therewith Centradas shall adopt the shareholders resolution attached hereto as
Schedule 6.8. Upon first written request of Centradas IMPCO will cause MEDIA to
distribute such interim dividend in accordance with the instructions of
Centradas within 90 days from the Closing Date.
6.9 SHARING ARRANGEMENTS. It is understood between the parties that there
are with respect to personnel and facilities existing arrangements between
MEDIA and companies belonging to the group of companies to which Sellers
belong. Such presently existing arrangements are set out in Schedule 6.9, which
Schedule also specifies the basis on which charges for the sharing arrangements
are calculated and imposed.
Page 19
Parties agree that the sharing arrangements shall be continued after the
Closing Date as per the specifications of Schedule 6.9, subject however to
review from time to time, whereby the actual requirements of MEDIA for such
services and the current market rate for such services shall be the basis.
6.10 MANAGEMENT SERVICES. With respect to the services of Xx. Xxxxxx as
Managing Director of Media the parties have agreed as per the agreement
attached hereto as Schedule 6.10.
ARTICLE VI. THE CLOSING
-----------------------
7.1 TIME AND PLACE. The transfer of the Shares by the Holding Co. to IMPCO
(the "Closing") shall take place at the offices of Van Schoonhoven In 't Veld
in Amsterdam, The Netherlands at 14:00 p.m. local time on October 31, 1995, or
such other time and place as the parties may agree to in writing (the "Closing
Date"). On the Closing Date, the following actions shall be taken:
(a) Centradas shall adopt the shareholders resolution referred to in
Section 6.8 on the basis of which the interim dividend shall be
distributed.
(b) Sellers shall produce certified resolutions of Sellers's and
MEDIA's shareholders resolutions and MEDIA's Supervisory Board
resolutions, in form and substance satisfactory to counsel of
IMPCO, authorizing the execution and performance of this
Agreement and all actions to be taken by the Sellers and MEDIA
under this Agreement;
(c) MEDIA shall submit to IMPCO a certified copy of the updated
shareholders register of Media-FRANCE;
(d) The Sellers shall produce the written resignations of all of
the members of MEDIA's Supervisory Board;
(e) IMPCO shall submit certified Resolutions of IMPCO's Board of
Directors, in form and substance satisfactory to the Sellers'
counsel, authorizing the execution and performance of this
Agreement and all actions to be taken by IMPCO under this
Agreement;
(f) A notarial deed shall be executed, in accordance with the draft
attached hereto as Schedule 7.1f on the basis of which the Shares
are transferred to IMPCO;
(g) Sellers shall submit to IMPCO a copy of the updated shareholders
register of Media-HOLLAND in which the transfer of the Shares tot
IMPCO has been registered;
(h) IMPCO shall cause a sum of 3,187,500 Dutch guilders to be wire
transferred to the bank account of the Holding Co. as follows:
Page 20
account number: 00.00.00.000
bank: MeesPierson The Hague
in the name of: DEPA Holding B.V.
(i) IMPCO and Centradas, as shareholders of Media-HOLLAND, shall
adopt a shareholders resolution, substantially in the form as
attached hereto as Schedule 7.1i, in which Messrs. X.X. Xxxxxxxx,
X.X. Xxxxxx and X. Xxx are appointed as Supervisory Directors of
Media-HOLLAND;
(j) IMPCO and Centradas, as shareholders of Media-HOLLAND, shall
adopt a shareholders resolution substantially in the form as
attached hereto as Schedule 7.1x x, in which it is resolved to
amend the Articles of Association of Media-HOLLAND as per the
draft attached hereto as Schedule 7.1x x;
(k) The Lease Agreements shall be executed by parties thereto;
(l) The Loan Agreement shall be executed by the parties thereto;
(m) The Distribution Agreement shall be executed by the parties
thereto;
(n) The Shareholders Agreement shall be executed by the parties
thereto.
(o) The Agreement on Management Services of Xx. Xxxxxx shall be
executed by the parties thereto.
ARTICLE VIII. PARTIES OBLIGATIONS AFTER CLOSING
-----------------------------------------------
8.1 SELLERS' INDEMNITY.
(a) Subject to all of the provisions of this Section 8.1 and
Section 2.1 if this transaction closes, the Sellers shall
indemnify and hold harmless IMPCO from and against:
(i) any and all liabilities, obligations, damages, deficiencies
and expenses resulting from any breach of obligation
incurred hereunder, or non-fulfilment of, any agreement on
the part of the Sellers and/or MEDIA under the terms of this
Agreement or because any representation or warranty herein
or in any certificate furnished or required to be furnished
pursuant to this Agreement by the Sellers, MEDIA, or any of
it directors, employees or representatives to IMPCO shall be
false or misleading in any material respect, except as
permitted herein, as of the Closing Date; and
(ii) all actions, suits, proceedings, demands, assessments,
judgments, costs, and expenses, including reasonable
attorney's fees, incident to the foregoing.
(b) In computing the amount to be paid by the Sellers under its
indemnity obligations, there shall be deducted an amount equal
to any tax benefits received by IMPCO through MEDIA, taking into
account the income tax treatment of the receipt of these
payments.
Page 21
(c) IMPCO shall promptly notify the Sellers of the existence of any
claim, demand, or other matter to which the Sellers'
indemnification obligations would apply and shall give them a
reasonable opportunity to defend the same at their own expense
and with counsel of their own selection, provided that IMPCO
shall at all times also have the right to fully participate in
the defense at its own expense. If the Sellers fail to defend,
within a reasonable amount of time, then IMPCO shall have the
right, but not the obligation, to undertake the defense of, and
to compromise or settle (exercising reasonable judgment), the
claim or other matter on behalf, for the account, and at the risk
of the Sellers. If the claim is one that cannot by its nature be
defended solely by the Sellers (including without limitation, any
federal, state, local or other tax proceedings), then IMPCO shall
make available,as required, all information and assistance that
the Sellers may reasonably request.
(d) It is specifically understood that the Sellers' indemnities under
this Agreement shall not apply to any provisions, obligations, or
agreements set forth in the Ancillary Agreements which shall be
self governing.
(e) IMPCO's rights under this Section 8.1 shall be its exclusive
right to recovery of damages from the Sellers by reason of, or
failure by the Sellers or MEDIA to perform any of its
representations warranties, covenants, obligations, liabilities
or agreements in this Agreement.
8.2.1 THE SELLERS TAX OBLIGATIONS. The Sellers agree to pay when due, or
reimburse within a reasonable time, all Tax of MEDIA with respect to any
period of time prior to and through the Closing Date, including any Tax
incurred in connection with the transfer of the shares of Media-FRANCE
to Media-HOLLAND and Media-GERMANY respectively (also in the event that
such transfers would take place after the Closing Date) and the transfer
of the Shares to IMPCO hereunder and and any other Tax payable by MEDIA
arising from taxable events prior to the Closing Date.
8.2.2 MEDIA shall reimburse and indemnify Sellers for any additional
corporate income tax including reasonable costs, which Sellers may claim
as a result of a fiscal revaluation of MEDIA's assets in connection with
the termination of the fiscal unity between MEDIA and Sellers, provided
that such reimbursement and indemnification shall only be payable if,
when and to the extent that MEDIA will have any tax benefits as a result
of such fiscal revaluation of its assets.
8.3 IMPCO'S INDEMNITY.
(a) Subject to all of the provisions of this Section 8.3, IMPCO shall
indemnify and hold harmless the Sellers from and against:
Page 22
(i) any and all liabilities, obligations, damages, deficiencies
and expenses resulting from any breach of obligation
incurred hereunder, or non-fulfilment of, any agreement on
the part of IMPCO under the terms of this Agreement or
because any representation or warranty herein or in any
certificate furnished or required to be furnished pursuant
to this Agreement by IMPCO or any of it directors, employees
or representatives shall be false or misleading in any
material respect, except as permitted herein, as of the
Closing Date and
(ii) all actions, suits, proceedings, demands, assessments,
judgments, costs, and expenses, including reasonable
attorney's fees, incident to the foregoing.
(b) In computing the amount to be paid by IMPCO under its indemnity
obligations, there shall be deducted an amount equal to any tax
benefits received by the Sellers through MEDIA, taking into
account the income tax treatment of the receipt of these
payments.
(c) The Sellers shall promptly notify IMPCO of the existence of any
claim, demand, or other matter to which IMPCO's indemnification
obligations would apply and shall give it a reasonable
opportunity to defend the same at its own expense and with
counsel of its own selection; provided that the Sellers shall at
all times also have the right to fully participate in the defense
at its own expense. If IMPCO fails to defend, within a
reasonable amount of time, then the Sellers and MEDIA shall have
the right, but not the obligation, to undertake the defense of,
and to compromise or settle (exercising reasonable judgment), the
claim or other matter on behalf, for the account, and at the risk
of the IMPCO. If the claim is one that cannot by its nature be
defended solely by IMPCO (including without limitation, any
federal, state, local or other tax proceedings), then the Sellers
and MEDIA shall make available, as required, all information and
assistance that IMPCO may reasonably request.
(d) It is specifically understood that IMPCO's indemnities under this
Agreement shall not apply to any provisions, obligations, or
agreements set forth in the Ancillary Agreements which shall be
self governing.
(e) The Sellers' rights under this Section 8.3 shall be their exclusive
right to recovery of damages from IMPCO by reason of, or failure by
IMPCO to perform any of its representations, warranties, covenants,
or agreements in this Agreement.
8.4a LIMITATION OF INDEMNITIES. IMPCO's rights under Section 8.1 and 8.2 and
Sellers's rights under Section 8.3 shall only result in an obligation of the
other party to indemnify and hold harmless pursuant to this Article 8 (i) if
the losses and damages resulting from an incorrectness of each individual
Page 23
statement, representation or warranty exceed 25,000 (twenty five thousand)
Dutch guilders and (ii) the amount payable shall exceed 100,000 (hundred
thousand) Dutch guilders in the aggregate, it being understood that if the
amounts payable under (i) and (ii) exceed such limits such amounts shall be
reimbursed in full, and it being understood that neither party shall be under
liability pursuant to this Article 8 to the extent the aggregate liability in
respect of all claims inclusive of interest, cost and expenses would exceed
3,187,000 (three million onehundred eightyseven thousand) Dutch guilders.
8.4b Furthermore, neither party shall be liable pursuant to this Article 8
unless the party has served on the other party a written notice giving details
of the claim in question (i) before the expiration of a period of two years
after Closing in case of indemnity obligations as per article 8.1 sub (a) and
8.3 sub (a) respectively other than the indemnity obligations relating to Tax;
(ii) with respect to the representations and warranties and further obligations
relating to Tax, before the expiration of three months after the expiration of
the statutory term in which Tax authorities can issue (additional) assesments.
8.5 CHANGE ARTICLES. IMPCO and the Sellers shall procure that MEDIA shall
adopt shareholders resolutions substantially in the form as attached hereto as
Schedule 8.5a in order to change the Articles of Association of Media-FRANCE
and Media-GERMANY to read as per the drafts attached hereto as Schedules 6.7b
and 6.7c.
ARTICLE IX. REMEDIES
--------------------
9.1 WAIVER OF RESCISSION RIGHTS. Notwithstanding any breach or default by
any of the parties of any of their respective representations, warranties,
covenants, or agreements, under this Agreement, if the purchase and sale
contemplated by it shall be consummated at the Closing, each of the parties
waives any rights that it or they may have to rescind or annul this Agreement,
provided however, that this waiver shall not affect any other rights or
remedies available to the parties under this Agreement or under the law.
9.2 RECOVERY OF LITIGATION COSTS. If any legal action or any arbitration or
other proceeding is brought for the enforcement of this Agreement, or because
of an alleged dispute, breach, default, or misrepresentation in connection with
any of the provisions of this Agreement, the successful or prevailing party or
parties, shall be entitled, to recover reasonable attorney's fees and other
costs incurred in that action or proceeding, in addition to any other relief to
which they may be entitled.
Page 24
ARTICLE X. NATURE AND SURVIVAL OF INDEMNITIES, REPRESENTATIONS AND
-------------------------------------------------------------------
OBLIGATIONS
-----------
10.1 No representations or warranties whatever are made by any party, except
as specifically set forth in this Agreement, or in an instrument, certificate,
or other writing provided for in this Agreement.
All statements contained in any of these instruments, certificates, or other
writings shall be deemed to be representations and warranties under this
Agreement. The representations, warranties and indemnities made by the Sellers
and IMPCO in this Agreement or in instruments, certificates, or other writings
provided for in the agreements to be performed or complied with by these
respective parties under it before the Closing Date, shall be deemed to be
continuing and shall subject to the provisions of article 8.4 sub b survive the
Closing. Nothing in this Section 10.1 shall affect the obligations and
indemnities of the parties with respect to covenants and agreements contained
in this Agreement that are permitted to be performed, in whole or in part,
after the Closing Date.
ARTICLE XI. PUBLICITY
---------------------
11.1 All notices to third parties other than required by law or any
regulatory authority and all other publicity concerning the transactions
contemplated by this Agreement shall be jointly planned and coordinated by and
between IMPCO and the Holding Co. No party shall act unilaterally in this
regard without the prior approval of the others, however this approval shall
not be unreasonably withheld.
ARTICLE XII. MISCELLANEOUS
--------------------------
12.1 FEES. Each party represents and warrants that it has not dealt with a
broker or finder in connection with any transaction contemplated by this
Agreement, and as far as it knows, no broker or any other person is entitled to
any commission or finder's fee in connection with any of these transactions.
12.2 EXPENSES. Each party shall pay all costs and expenses incurred or to be
incurred by it in negotiating and preparing this Agreement and in closing and
carrying out the transactions contemplated by this Agreement.
12.3 EFFECT OF HEADINGS. The subject headings of the Articles and sections
of this Agreement are included for convenience only and shall not affect the
construction or interpretation of any of its provisions.
Page 25
12.4 PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is any thing in this Agreement intended to relieve
or discharge the obligation or liability of any third person to any party to
this Agreement, nor shall any provision give any third persons any right of
subrogation or action against any party to this Agreement.
12.5 ASSIGNMENT. This Agreement shall be binding on, and inure to the
benefit of, the parties to it and their respective heirs, legal
representatives, successors, assigns, provided however, that IMPCO, the
Sellers and MEDIA may not transfer or assign any of their rights under this
Agreement, except with explicit prior written approval of the other parties.
12.6 COUNTERPARTS. This Agreement may be executed simultaneously in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.7 NOTICES. All notices, demands, requests, and other communications under
this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is to
be given, or on the second day after mailing if mailed to the party to whom the
notice is to be given, by First Class, (Air-Mail for international delivery),
postage prepaid and properly addressed as follows:
To the Holding Co. at:
Depa Holding B.V.
Xxxxxxxxxx 0
0000 XX Xxxxxx, Xxx Xxxxxxxxxxx
Attn.: Xx. Xxxxx Xxx
To Centradas at:
Xxxxxxxxx X.X.
Xxx Xxxxxxxxxxx 00
0000 GA Rijswijk, The Netherlands
Attn.: Xx. Xxxxx Xxx
Page 26
To MEDIA at:
Technisch Bureau Media B.V.
Vam Gijnsstraat 8-10
2288 GA Rijswijk, The Netherlands
Attn.: Xx. X. Xxxxxx
With a copy to:
Mr. M.C.D. Wesseling
Houthoff
X.X. Xxx 0000
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
To IMPCO at:
IMPCO Technologies, Inc.
00000 Xxxxxxx Xxxxx
Xxxxxxxx, XX, XXX 00000
Attn.: Xx. Xxxxxx X. Xxxxxxxx
With a copy to:
Mrs. S.A. in 't Veld
Xxx Xxxxxxxxxxx In 't Veld
X.X. Xxx 00000
0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Any party may change its address for purpose of this Section by giving the
other parties written notice of the new address in the manner set forth above.
12.8 GOVERNING LAW; JURISDICTION. This Agreement is subject to the laws of
the Netherlands. Notwithstanding the non-exclusive authority of the President
of the District Court of The Hague in summary proceedings any and all disputes
arising in connection with this Agreement or agreements resulting therefrom
shall be settled, subject to any appeal, in accordance with the Rules of the
Netherlands Arbitration Institute (Nederlands Arbitrage Instituut). Any appeal
from the arbitral award shall be governed by the same procedural rules as
applicable to the arbitral procedure in the first instance. The arbitral pannel
shall be composed of three arbiters. The place of arbitration shall be
Amsterdam. The arbitration shall be conducted in the English language.
12.9 SEVERABILITY. This Agreement and the Schedules attached or appended to
this Agreement, constitute the entire Agreement between the parties pertaining
to the subject matter contained in it and supersedes all prior and
Page 27
contemporaneous agreements, representations, and understandings of the
parties. No supplement, modification, or amendment of this Agreement shall
be binding unless executed in writing by all of the parties. No waiver of any
of the provision of this Agreement shall be deemed, or shall constitute, a
waiver of any provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed
in writing by the party making the waiver.
12.10 FAILURE TO ENFORCE. Failure of either party to enforce any of the
terms of this Agreement shall not be construed as a waiver of rights thereunder
preventing the subsequent enforcement of such provisions or recovery of damages
for breach thereof.
12.11 FORCE MAJEURE. Neither party shall be responsible for delays or
failures in performance from acts beyond the control of such party. Such acts
shall include but not be limited to acts of God, strikes, lockouts, riots, acts
of war, epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, power failures, earthquakes or other disasters.
12.12 DEFINITIONS. The following terms are defined in this Agreement in the
Section indicated:
IMPCO...............................Preamble
Holding Co..........................Preamble
Centradas...........................Preamble
Sellers.............................Preamble
Media-HOLLAND.......................Preamble
Media-GERMANY.......................Preamble
Media-FRANCE........................Preamble
MEDIA...............................Preamble
Subsidiaries........................Preamble
Shares..............................1.1
Financial Statements................2.6
Tax.................................2.9
Inventory...........................2.10
Lessor..............................6.1
Lease Agreements....................6.1
Loan Agreement......................6.3
Distribution Agreement..............6.4
Shareholders Agreement..............6.5
Ancillary Agreements................6.6
Closing Statements..................6.8
Closing.............................7.1
Closing Date........................7.1
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IN WITNESS WHEREOF, the parties to this Agreement have duly executed it on this
31st day of October, 1995.
IMPCO TECHNOLOGIES, INC DEPA HOLDING B.V.
----------------------- -----------------
/s/ S.A. in `t Veld /s/ X.X. Xxxxxxx
-------------------- --------------------
S.A. in 't Veld X.X. Xxxxxxx
Attorney by proxy Managing Director
TECHNISCH BUREAU MEDIA B.V. CENTRADAS B.V.
--------------------------- --------------
/s/ R.M.H. Frings /s/ X.X. Xxxxxxx
-------------------- --------------------
R.M.H. Frings Depa Holding B.V.
Managing Director By: X.X. Xxxxxxx
Managing Director
Page 29
