July ▇▇, ▇▇▇▇
▇▇▇▇
▇▇▇▇ ▇▇
▇▇▇ Manufacturing, Inc.
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SHARE PURCHASE AGREEMENT
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Contents
ARTICLE 1. Definitions............................................................................................ 7
ARTICLE 2. Purchase and Sale of the Purchased Shares.............................................................. 12
ARTICLE 3. Consideration and Payment for the Purchased Shares..................................................... 12
3.1 Purchase Price......................................................................................... 12
3.2 Closing Purchase Price................................................................................. 12
ARTICLE 4. Adjustments of the Purchase Price...................................................................... 13
4.1 Adjustment based upon the Intercompany Debt............................................................ 13
4.2 Net Assets Adjustment.................................................................................. 13
ARTICLE 5. Repayment of the Intercompany Debt..................................................................... 14
5.1 Intercompany Debt...................................................................................... 14
5.2 Estimated Intercompany Debt............................................................................ 14
5.3 Intercompany Debt Adjustment........................................................................... 15
ARTICLE 6. Management of BEA until the Closing Date............................................................... 15
ARTICLE 7. Conditions precedent................................................................................... 16
7.1 Conditions precedent for the sole benefit of the Purchaser............................................. 16
7.2 Condition precedent for the sole benefit of the Sellers................................................ 16
ARTICLE 8. Pre-closing covenants.................................................................................. 17
8.1 Consents and Approvals................................................................................. 17
8.2 Access and information................................................................................. 17
8.3 Intercompany agreements................................................................................ 17
8.4 Notices of Certain Events.............................................................................. 18
8.5 SEC requirements....................................................................................... 18
ARTICLE 9. Closing................................................................................................ 18
9.1 Closing Date........................................................................................... 18
9.2 Actions to be taken on the Closing Date................................................................ 18
ARTICLE 10. Closing financial statements........................................................................... 20
10.1 Closing Financial Statements........................................................................... 20
10.2 Delivery of the Closing Financial Statements........................................................... 20
10.3 Review by Bull......................................................................................... 20
10.4 Failure to agree....................................................................................... 21
10.5 Principles to be applied by the Parties and the Expert................................................. 22
10.6 Access................................................................................................. 23
ARTICLE 11. Accounts Receivable.................................................................................... 23
11.1 Accounts Receivable Print-out.......................................................................... 23
11.2 Post-closing payment................................................................................... 23
11.3 Accounts Receivable collection procedure............................................................... 24
ARTICLE 12. Representations and Warranties......................................................................... 25
12.1 Incorporation - Share capital - Transfer of the Purchased Shares to Purchaser - Shareholders agreement. 25
12.2 Purchased Shares -Transfer of the Purchased Shares to the Purchaser.................................... 26
12.3 Authorization - Validity of this Agreement - No conflict or violation.................................. 26
12.4 Decisions of Management Bodies and records............................................................. 27
12.5 Recent restructuring................................................................................... 28
12.6 Operations............................................................................................. 29
12.7 Financial Facilities................................................................................... 29
12.8 Assets................................................................................................. 30
12.9 Real estate property................................................................................... 30
12.10 Leases................................................................................................. 31
12.11 Inventory and work in process.......................................................................... 31
12.12 Computer Systems....................................................................................... 32
12.13 Environment............................................................................................ 32
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12.14 Intellectual and industrial property................................................................... 33
12.15 Contracts.............................................................................................. 34
12.16 Inter-group agreements................................................................................. 35
12.17 Employees and collective agreements.................................................................... 35
12.18 Insurance.............................................................................................. 37
12.19 Litigation and proceedings............................................................................. 38
12.20 Subsidies.............................................................................................. 38
12.21 Brokerage fees......................................................................................... 39
12.22 Holdings............................................................................................... 39
12.23 Tax, social security, customs obligations.............................................................. 39
12.24 Financial Statements................................................................................... 41
12.25 Interim Period......................................................................................... 41
12.26 Unfavorable Events or Conditions to Date............................................................... 43
12.27 Entirety of Declarations............................................................................... 43
12.28 The Purchaser.......................................................................................... 43
12.29 Finders' Fees......................................................................................... 44
ARTICLE 13. Indemnification by the Sellers......................................................................... 44
13.1 Indemnification........................................................................................ 44
13.2 Deductions............................................................................................. 46
13.3 Limitations............................................................................................ 46
13.4 Exclusions............................................................................................. 47
13.5 Third Party Claims..................................................................................... 47
13.6 Exceptions............................................................................................. 48
13.7 Indemnification as exclusive remedy.................................................................... 48
13.8 Payment................................................................................................ 48
13.9 Set-off................................................................................................ 48
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ARTICLE 14. Covenants of the Purchaser............................................................................. 49
14.1 Sale of the PCB Business............................................................................... 49
14.2 Employees of the PCB Business.......................................................................... 49
14.3 Guarantee.............................................................................................. 49
ARTICLE 15. Post-Closing covenants of the Sellers.................................................................. 49
15.1 Non-competition undertaking............................................................................ 49
15.2 Tax matters............................................................................................ 50
ARTICLE 16. Covenants of the Parties............................................................................... 51
ARTICLE 17. Agency................................................................................................. 51
ARTICLE 18. Substitution........................................................................................... 51
ARTICLE 19. Corporate name......................................................................................... 52
ARTICLE 20. Taxes, costs and expenses.............................................................................. 52
20.1 Taxes.................................................................................................. 52
20.2 Other costs and expenses............................................................................... 52
ARTICLE 21. Assignment............................................................................................. 52
ARTICLE 22. Confidentiality, public announcement................................................................... 53
ARTICLE 23. Notices................................................................................................ 53
ARTICLE 24. Miscellaneous.......................................................................................... 55
24.1 Amendment.............................................................................................. 55
24.2 Agreement to prevail................................................................................... 55
24.3 Preamble and Exhibits.................................................................................. 55
24.4 Severability........................................................................................... 55
24.5 Single Agreement....................................................................................... 55
ARTICLE 25. Governing law - competent jurisdiction................................................................. 55
25.1 Governing law.......................................................................................... 55
25.2 Jurisdiction........................................................................................... 55
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SHARE PURCHASE AGREEMENT
BETWEEN
BULL, a French societe anonyme with a share capital of EUR 330,936,324, having
its registered office at ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ and which
is registered with the Registry of Commerce and Companies of Versailles under
number 542 046 065, represented by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, duly authorized for the
purpose hereof (PARENT), further to a power of attorney, dated July 11, 2000,
BULL S.A., a French societe anonyme with a share capital of EUR 163,585,000,
having its registered office at ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ and
which is registered with the Registry of Commerce and Companies of Versailles
under number 642 058 739, represented by ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, duly authorized for
the purpose hereof (BULL), further to a power of attorney, dated July 11, 2000,
(hereinafter collectively referred to as the SELLERS, and individually as a
SELLER and acting jointly and severally),
AND
ACT MANUFACTURING, INC., a Massachusetts company, having its principal place of
business at ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America,
represented by ▇▇▇▇ ▇. ▇▇▇▇, duly authorized for the purpose hereof (ACT),
pursuant to a board resolution dated July 11, 2000,
it being expressly agreed that ACT shall have the right to have all or part of
the Purchased Shares (as defined below) acquired by any one of its Subsidiaries,
whether French or overseas, direct or indirect, existing or to be created, in
the terms and conditions set forth in Article 18 below,
(such Subsidiary, if any, and ACT, acting jointly and severally in accordance
with Article 18 below, being hereinafter referred to as the PURCHASER),
(the Sellers and the Purchaser being hereafter collectively referred to as the
PARTIES or individually as a PARTY).
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PREAMBLE:
(A) Bull is, on the date hereof, the direct owner of 2,017,814 shares and will
be, on the Closing Date (as defined below) the direct owner of the
Purchased Shares of Bull Electronics Angers, a French societe anonyme with
a share capital of FRF 201,782,000 represented by 2,017,820 shares of FRF
100 par value each, having its registered office at ▇▇, ▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇ and which is registered with the Registry of Commerce and
Companies of Angers under number 390 411 528 (BEA).
(B) BEA operates since 1995 in Angers, France, the business of contract
manufacturing which consists in providing (i) printed circuit assemblies
(also known as board assemblies), (ii) box-build systems assembly and (iii)
associated end-to-end value added services for original equipment
manufacturers (the ASSEMBLY BUSINESS) as described in EXHIBIT A.1 of this
Agreement.
BEA also operates the business of raw board production (printed circuit
board making) (the PCB BUSINESS) as described in EXHIBIT A.2 of this
Agreement.
(C) As the Purchaser intended to purchase BEA without the PCB Business, the
Parties have agreed to have BEA contributing the PCB Business and the PCB
Business Property to CIBA (as defined below), and to have CIBA assume the
liabilities and obligations associated with the PCB Business and the PCB
Business Property, before the sale of the Purchased Shares to the
Purchaser. In order to transfer all Assets and liabilities relating to the
PCB Business to CIBA, the regime juridique des scissions will be elected
for this contribution pursuant to Article 387 of the French company law of
July 24, 1966. This contribution will have a retroactive effect as of
January 1, 2000. The terms and conditions of the Reorganization Plan are
described in EXHIBIT A.3 of this Agreement and in the Partial Business
Contribution Agreement to be entered into between BEA and CIBA
substantially in the form of EXHIBIT A.4 of this Agreement and in the Real
Estate Contribution Deed to be established by a French Notary for filings
purposes. As part of the Reorganization Plan, Bull or one of its
Affiliates will repurchase on or prior to the Closing Date the shares held
by BEA in CIBA in accordance with the terms and conditions set forth in
EXHIBIT A.3 of this Agreement.
(D) The Purchaser desires to acquire and the Sellers desire to sell to the
Purchaser the totality of the Purchased Shares, on the terms and conditions
set forth in this Agreement.
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NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1. Definitions
For the purpose of this Agreement (including the Preamble), the following terms
and expressions shall, unless the context otherwise requires, have the following
meaning:
ACCOUNTING PRINCIPLES Shall mean the accounting principles pursuant to U.S. GAAP used to prepare
the 1999 Financial Statements and to be used to prepare the Closing Financial
Statements and set forth in EXHIBIT 1.1 of this Agreement.
ACCOUNTS RECEIVABLE Shall mean the amount, as shown in the Closing Financial Statements, of all
accounts receivable of BEA (after contribution of PCB Business) existing on
the Closing Date (at book value net of the corresponding reserves for bad
debt and for accrued discounts and allowances and net of advanced collection
applied only to customers invoices) without deducting the amount of the
related deposits, security or collateral thereof, including without
limitation amounts due from the customers, whether recorded as accounts
receivable or reductions in accounts payable, except in case of reduction in
an account payable if the amount of the corresponding account receivable is
properly set-off by BEA.
AFFILIATE(S) Shall mean, in relation to any Person:
(i) any Person which owns directly or indirectly more than 50% of the
capital stock or voting rights of said Person (a PARENT ENTITY);
(ii) any Person in which said Person owns directly or indirectly more than
50% of the capital stock or voting rights; or
(iii) any other Person in which a Parent Entity owns directly or indirectly
more than 50% of the capital stock or voting rights.
AGREEMENT Shall mean this share purchase agreement including its Exhibits or other
attachments which shall form part thereof.
ANCILLARY AGREEMENTS Shall mean the Industrial Supply Agreement, the PCB Supply Agreement, the
Trademark License Agreement, the Transition Services Agreement, the BEA Lease
Amendment Agreement, the CIBA Lease and the Partial Business Contribution
Agreement.
ASSEMBLY BUSINESS Shall have the meaning set forth in the Preamble.
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ASSEMBLY BUSINESS PROPERTY Shall mean the real estate property owned by BEA for the purpose of carrying
out the Assembly Business as described in EXHIBIT 1.2 of this Agreement.
BEA LEASE AMENDMENT AGREEMENT Shall mean the amendment agreement to be entered into on the Closing Date, to
the lease agreement entered into between BEA, as landlord, and Bull, as
tenant, on December 29, 1999, a form of which is attached hereto as EXHIBIT
1.3 of this Agreement.
BUSINESS DAY Shall mean any day other than Saturday, Sunday, legal holiday or a day on
which banking institutions in Paris, France or in the City of New York,
U.S.A, are authorized to be closed.
CIBA Shall mean CI Bull Angers SA (formerly Equipement 5), a French societe
anonyme, having a share capital of EUR 38,250 and its registered office at
▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and which is registered with the Registry of
Commerce and Companies of Angers under number 428.670.012, which is a French
Subsidiary of Bull.
CIBA LEASE Shall mean the lease agreement without statutory protection (bail precaire)
to be entered into between CIBA as landlord and BEA as tenant on the date of
the contribution of the PCB Business to CIBA in a form to be agreed upon by
the Parties and referred to in the Partial Business Contribution Agreement.
CLOSING Shall mean the consummation of the transactions contemplated by this
Agreement.
CLOSING DATE Shall mean the date referred to under Article 9 of this Agreement when the
sale of the Purchased Shares to the Purchaser shall be consummated by
delivery of the documents referred to in Article 9.2 hereof against payment
by the Purchaser of the Closing Purchase Price and by the Purchaser, acting
on behalf of BEA, of the Estimated Intercompany Debt.
CLOSING FINANCIAL STATEMENTS Shall mean the financial statements for BEA (after contribution of PCB
Business) as of the Closing Date to be prepared by the Purchaser in
accordance with the Accounting Principles, to be audited by the Purchaser's
Auditors and then reviewed by the Sellers' Auditors in accordance with
Article 8 below.
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CLOSING NET ASSETS Shall mean the aggregate value of the assets (including cash but excluding
goodwill) of BEA (after contribution of PCB Business) less the aggregate
amount of the liabilities of BEA (and in particular any appropriate Tax
accruals - in particular those arising as a result of the operation of BEA
through and including the Closing Date and/or as a result of the
Reorganization Plan - but excluding the Intercompany Debt) as reported in the
Closing Financial Statements and determined in accordance with the Accounting
Principles.
CLOSING PURCHASE PRICE Shall mean the purchase price for the Purchased Shares as defined in Article
3.2 of this Agreement to be paid on the Closing Date.
COFIP Shall mean COFIP SA, a French societe anonyme, having a share capital of FRF
1,850,000 and its registered office at ▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ and which is registered with the Registry of Commerce and
Companies of Versailles under number 303.375.000, which is a French
Subsidiary of Bull and the parent company of CIBA.
ESTIMATED NET ASSETS Shall mean FRF 147,800,000.
FINAL RESOLUTION Shall mean the resolution of the relevant dispute either (i) through a full
and final out of court settlement pursuant to Article 2044 of the French
Civil Code or (ii) a final decision of the arbitration tribunal in accordance
with Article 25.2 of this Agreement.
GOVERNMENTAL APPROVALS All consents, waivers, authorizations, approvals, exemptions or declarations
of or by, or filings with, a Governmental Authority.
GOVERNMENTAL AUTHORITY Any domestic or foreign court or other judicial authority or governmental,
regulatory or administrative body, department, agency, commission, authority
or instrumentality.
INDUSTRIAL SUPPLY AGREEMENT Shall mean the supply agreement between BEA and Bull and its Affiliates
providing for supply of assemblies to Bull and its Affiliates in the form set
forth in EXHIBIT 1.4 of this Agreement.
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INTERCOMPANY DEBT Shall mean the outstanding principal amount of, and all accrued but unpaid
interest on, the financial debts (not including operating liabilities) owed
by BEA to the Sellers and their Affiliates as at the Closing Date as
reflected in the Closing Financial Statements.
LIENS Shall mean any security interest, mortgage, lien, pledge, charge,
encumbrance, easement, claim, privilege, covenant, agreement, option,
undertaking, defect of title, retention of title clauses, limitation or
restriction of any kind, right of first offer, right of preemption, or other
third party right, which have the purpose or the effect of restricting in any
manner the ownership, use or transferability of an asset or right.
MATERIAL ADVERSE EFFECT When used with respect to any event, circumstance, condition, fact, effect,
or other matter, the origin of which is prior to the Closing Date, shall mean
that such event, circumstance, condition, fact, effect, or other matter, has
or is reasonably likely to have within the 3 months following the Closing
Date a material adverse effect on the business, assets, condition (financial
or other), results or operations of BEA (unless such event, circumstance,
condition, fact, effect, or other matter, affects in a similar manner
companies having the same activities as BEA after contribution of the PCB
Business), or on the ability of a Party to perform any material obligation
under this Agreement or to consummate the transactions contemplated hereby.
Notwithstanding the foregoing sentence, it is agreed that any event,
circumstance, condition, fact, effect or other matter expressly disclosed in
this Agreement or in an Exhibit thereto shall not be considered as having a
Material Adverse Effect for the purpose hereof, only if and to the extent
this event, circumstance, condition, fact, effect or other matter is
identical to the event, circumstance, condition, fact, effect or other matter
disclosed in this Agreement or in an Exhibit thereto and no intervening
factor has occurred after the signing of this Agreement, which makes the
liability of BEA materially greater than the one disclosed in this Agreement
or in an Exhibit hereto.
PARTIAL BUSINESS CONTRIBUTION Shall mean the partial business contribution agreement (Traite d'apport
AGREEMENT partiel d'actifs) to be entered into between BEA and CIBA substantially in
the form of EXHIBIT A.4 of this Agreement.
PCB BUSINESS Shall have the meaning set forth in the Preamble.
PCB BUSINESS PROPERTY Shall mean the real estate property owned by BEA for the purpose of carrying
out the PCB Business as described in EXHIBIT 1.5 of this Agreement.
PCB SUPPLY AGREEMENT Shall mean the supply agreement to be entered into on the date of
contribution of the PCB Business between CIBA and BEA substantially in the
form of EXHIBIT 1.6 of this Agreement.
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PERSON Shall mean a natural person, company, corporation, partnership, limited
liability company, economic interest group, trust or unincorporated
organization, or any other entity.
PURCHASE PRICE Shall mean the total purchase price for the Purchased Shares as defined in
Article 3.1 below, subject to the adjustments set forth herein.
PURCHASED SHARES Shall mean the totality of the shares representing the share capital of BEA
as at the Closing Date (i.e. 2,017,820 shares).
PURCHASER'S AUDITORS Shall mean Deloitte & Touche, LLP.
REAL ESTATE CONTRIBUTION DEED Shall mean the PCB Business Property contribution deed as established by a
French notary for filings purposes.
REORGANIZATION PLAN Shall mean the partial business contribution by BEA to CIBA of the PCB
Business and the PCB Business Property and the sale of the CIBA shares to
COFIP under the terms and conditions described in EXHIBIT A.3 of this
Agreement.
REPRESENTATIONS AND WARRANTIES Shall mean the representations and warranties set out in Article 12 of this
Agreement.
SELLERS' AUDITORS Shall mean Deloitte Touche Tohmatsu.
SUBSIDIARY Shall mean any company controlled, directly or indirectly, by the Purchaser
within the meaning of Article 354 of the law n(degree) 66-537 of July 24, 1966.
TAXES Shall have the meaning set forth in Article 12.23.1 of this Agreement.
TAX RETURNS Shall mean all returns, declarations, reports, statements and other documents
required to be filed in respect of Taxes, including information returns or
reports with respect to withholding and other payments to third parties.
THIRD PARTY CLAIMS Shall have the meaning set forth in Article 13.5 of this Agreement.
THIRD PARTY CONSENTS Shall mean all consents, waivers, authorizations or approvals of any Person
that is required to be obtained or made by the Sellers or BEA in connection
with the execution and delivery of this Agreement by the Sellers, the
performance by the Sellers of their obligations hereunder, or the
preservation of all rights and privileges of the Assembly Business upon
transfer of ownership to Purchaser.
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TRADEMARK LICENSE AGREEMENT Shall mean the agreement referred to in Article 19 of this Agreement, a form
of which is attached hereto as EXHIBIT 19 of this Agreement.
TRANSITION SERVICES AGREEMENT Shall mean the agreement related to the provision of services by Bull and
Bull's Affiliates to BEA, including, as applicable, information services,
human resources functions (e.g. payroll) and campus facilities support, a
form of which is attached hereto as EXHIBIT 1.7 to be entered into on the
Closing Date, prepared on the basis of the Short-Form Transitional Services
Agreement entered into between Bull and ACT on the date hereof.
U.S. GAAP Shall mean generally accepted accounting principles in the United States of
America.
1999 FINANCIAL STATEMENTS Shall mean the financial statements for the Assembly Business and the related
notes attached hereto as EXHIBIT 1.8 for the financial year ended on December
31, 1999 prepared by the Sellers and audited by the Sellers' Auditors in
accordance with U.S. GAAP.
ARTICLE 2. PURCHASE AND SALE OF THE PURCHASED SHARES
Subject to the terms and conditions set forth in this Agreement, Bull agrees to
sell and the Purchaser agrees to purchase from Bull, on the Closing Date, the
Purchased Shares, with all dividends and other rights attached thereto, free and
clear of any Lien.
ARTICLE 3. CONSIDERATION AND PAYMENT FOR THE PURCHASED SHARES
3.1 PURCHASE PRICE
Subject to the adjustments set forth herein, the purchase price for the
Purchased Shares is USD 56,600,000, less the Intercompany Debt which shall be
paid by Purchaser to Bull on behalf of BEA at the Closing (the PURCHASE PRICE).
3.2 CLOSING PURCHASE PRICE
The Closing Purchase Price for the Purchased Shares is equal to USD 56,600,000
less the Estimated Intercompany Debt (as defined in Article 5 of this
Agreement).
The Purchaser shall pay the Closing Purchase Price on the Closing Date in
immediately available funds by bank wire transfer to such account as Bull shall
have notified in writing to the Purchaser no later than three Business Days
prior to the Closing Date.
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ARTICLE 4 ADJUSTMENTS OF THE PURCHASE PRICE
4.1 ADJUSTMENT BASED UPON THE INTERCOMPANY DEBT
As the Purchase Price totals USD 56,600,000 less the Intercompany Debt, the
Purchase Price shall be, as the case may be:
(a) increased by the amount, if any, by which the Estimated Intercompany Debt
exceeds the Intercompany Debt;
(b) decreased by the amount, if any, by which the Intercompany Debt exceeds the
Estimated Intercompany Debt.
For the purpose of this adjustment, the exchange rate USD/FRF published in the
Financial Times on the third Business Day preceding the Closing Date shall be
used to convert the value of the Estimated Intercompany Debt and the
Intercompany Debt into U.S. dollars.
The Estimated Intercompany Debt shall be determined in accordance with Article 5
below.
This adjustment shall be referred to as the INTERCOMPANY DEBT ADJUSTMENT.
As indicated in Article 5 below, the increase or decrease of the Purchase Price
as defined in this Article 4.1 will be set-off against the corresponding
difference between the Estimated Intercompany Debt and the Intercompany Debt
which will be paid by the Purchaser on behalf of BEA and therefore will not
change the aggregate amount due by the Purchaser in consideration for the
Purchased Shares and, for the Intercompany Debt to be repaid on behalf of BEA by
the Purchaser (which amount in the aggregate shall not exceed USD 56,600,000).
4.2 NET ASSETS ADJUSTMENT
The Purchase Price shall be, as the case may be:
(a) increased, on a U.S. dollar for U.S. dollar basis, by the amount, if any,
by which the Closing Net Assets exceed the Estimated Net Assets; and
(b) reduced, on a U.S. dollar for U.S. dollar basis, by the amount, if any, by
which the Estimated Net Assets exceed the Closing Net Assets.
For purposes of this adjustment, an exchange rate equal to USD 0.153 for FRF 1
shall be used to convert into U.S. dollars the Estimated Net Assets and the
value of the net assets of BEA for the Closing Net Assets calculations. This
adjustment, which is described in Article 10 below, shall be referred to herein
as the NET ASSETS ADJUSTMENT.
In the event the Net Assets Adjustment as finally determined in accordance with
Article 10 below is payable by the Purchaser to Bull, the amount thereof shall
be paid in U.S. dollars within 10 Business Days after such determination, by the
Purchaser to Bull, in immediately available funds by bank wire transfer to such
account as Bull shall notify in writing to the Purchaser no later than three
Business Days after such determination.
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In the event the Net Assets Adjustment as finally determined in accordance with
Article 10 below is payable by Bull to the Purchaser, the amount thereof shall
be paid in U.S. dollars within 10 Business Days after such determination, by
Bull to the Purchaser, in immediately available funds by bank wire transfer to
such account as the Purchaser shall notify in writing to Bull no later than
three Business Days after such determination. The Sellers shall be jointly and
severally liable for any such amounts.
Any amounts payable under this Article 4.2 shall bear interest from the date the
payment is due until payment is made and without any further actions being
required, at an annual rate equal to 9,5 %, it being understood that this
provision does not entitle the paying Party to make late payment.
ARTICLE 5. REPAYMENT OF THE INTERCOMPANY DEBT
5.1 INTERCOMPANY DEBT
Subject to the terms and conditions set forth in this Agreement, the Purchaser,
acting on behalf of BEA, agrees to repay the Intercompany Debt on the Closing
Date.
The amount of the Intercompany Debt shall be equal to the outstanding principal
amount thereof converted (if needed) in U.S. dollars plus any accrued and unpaid
interest, as at the Closing Date, as reflected in the Closing Financial
Statements and shall not exceed USD 56,600,000.
The exchange rate USD/FRF published in the Financial Times on the third
Business Day preceding the Closing Date shall be used to convert the value of
the Intercompany Debt into U.S. dollars.
5.2 ESTIMATED INTERCOMPANY DEBT
The Sellers shall provide the Purchaser on the third Business Day prior to the
Closing Date with an estimate as of the Closing Date of the amount converted (if
needed) in U.S. dollars of the Intercompany Debt (the ESTIMATED INTERCOMPANY
DEBT).
The exchange rate USD/FRF published in the Financial Times on the third Business
Day preceding the Closing Date shall be used to convert the value of the
Estimated Intercompany Debt into U.S. dollars.
The amount due by the Purchaser, acting on behalf of BEA, at Closing to repay
the Intercompany Debt shall be the Estimated Intercompany Debt.
The Purchaser, acting on behalf of BEA, shall pay in U.S. dollars the Estimated
Intercompany Debt on the Closing Date in immediately available funds by bank
wire transfer to such account as Bull shall have notified in writing to the
Purchaser no later than three (3) Business Days prior to the Closing Date. Bull
shall be responsible for distributing the Estimated Intercompany Debt between
itself, Parent and the other relevant Sellers' Affiliates.
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5.3 INTERCOMPANY DEBT ADJUSTMENT
Any differences between the Estimated Intercompany Debt and the Intercompany
Debt as reflected in the Closing Financial Statements will not give rise to any
payment in cash from the Sellers to the Purchaser, acting on behalf of BEA, as
it will be set-off against a corresponding increase or decrease of the same
amount of the Purchase Price as defined in Article 4.1 of this Agreement, and
therefore would not change the aggregate amount due by the Purchaser in
consideration for the Purchased Shares and by the Purchaser, acting on behalf of
BEA, to repay the Intercompany Debt, it being specified that the allocation of
the Purchase Price and the amount of the Intercompany Debt as reflected in the
Closing Financial Statements will be modified accordingly, the Sellers being
responsible for distributing accordingly the Intercompany Debt between
themselves and the relevant Sellers' Affiliates. The Sellers undertake to
deliver to the Purchaser, acting on behalf of BEA, within ten Business Days of
the final determination of the Intercompany Debt and the Intercompany Debt
Adjustment pursuant to Article 10 hereof, a certificate from the Sellers and
from each of the relevant Sellers' Affiliates stating the amount of the
Intercompany Debt owed to them by BEA and acknowledging the complete and final
repayment of this amount by the Purchaser, acting on behalf of BEA.
ARTICLE 6. MANAGEMENT OF BEA UNTIL THE CLOSING DATE
Between the date hereof and the Closing Date, the Sellers shall cause BEA to
operate and carry on the Assembly Business as a bon pere de famille in the
ordinary course of business and consistent with past practices without any
material change of policy and to use its commercially reasonable efforts to
preserve the Assembly Business and the relationships with employees, suppliers
and customers. Except as otherwise provided for in EXHIBIT 6 of this Agreement,
and without limiting the foregoing, the Sellers undertake and will cause BEA to
undertake after the date hereof and until the Closing Date (i) not to take any
action or make any decision of the type referred to in Article 12.25 below
(except for Article 12.25.(iii)(e)), (ii) not to lay off employees having a base
annual salary in excess of EUR 50,000, (iii) not to enter into orders with
suppliers in excess of EUR 5,000,000 per order, unless the order is supported by
customers orders, and not to enter into orders with suppliers in excess of EUR
1,000,000 without being supported by customers orders and in a manner which is
not consistent with past practices, (iv) not to enter into or terminate any
Material Contract (as defined in Article 12.15.1 of this Agreement) nor enter
into any amendment agreement thereto and (v) not to make or commit any
investment (not mentioned in EXHIBIT 12.25.(III)(E) of this Agreement) of an
individual value in excess of EUR 100,000 and an aggregate value, which,
together with all other investments made or committed during such period, is in
excess of EUR 500,000, in each case without the Purchaser's prior consent.
11
ARTICLE 7. CONDITIONS PRECEDENT
7.1 CONDITIONS PRECEDENT FOR THE SOLE BENEFIT OF THE PURCHASER
The obligations of the Purchaser to purchase the Purchased Shares and to take
the other actions required to be taken by the Purchaser at the Closing are
subject to satisfaction at or prior to the Closing of each of the following
conditions precedent (unless satisfaction of any such condition is waived by the
Purchaser):
(a) the Sellers shall have performed and complied with, in all material
respects, all agreements, covenants and undertakings required by this
Agreement to be performed or complied with by the Sellers prior to or at
the Closing, which condition shall be satisfied by the remittal of the
certificate mentioned in Article 9.2.2 (vii) of this Agreement, except if
evidence to the contrary is brought by the Purchaser;
(b) the PCB Business and the PCB Business Property shall have been contributed
to CIBA in accordance (i) with the Partial Business Contribution Agreement
to be entered into between BEA and CIBA and (ii) with applicable laws and
regulations; to evidence the completion of the condition precedent set
forth in this paragraph (b), the Sellers shall deliver the documents listed
in EXHIBIT 7.1(b) of this Agreement;
(c) Bull or one of its Affiliates shall have repurchased on or prior to the
Closing Date the shares held by BEA in CIBA in accordance with the terms
and conditions set forth in EXHIBIT A.3 of this Agreement;
(d) since January 1, 2000 to the Closing Date, no event, circumstance,
condition, fact, effect or other matter having, or which is reasonably
likely to have within the 3 months following the Closing Date, a Material
Adverse Effect shall have occurred;
(e) the Third Party Consents shall have been obtained and shall be in full
force and effect on the Closing Date.
In any event, the conditions set out in this Article are for the benefit of the
Purchaser and may under no circumstances be invoked by the Sellers. The
Purchaser may waive them in whole or in part, in writing, at any time prior to
the Closing Date.
7.2 CONDITION PRECEDENT FOR THE SOLE BENEFIT OF THE SELLERS
The obligations of the Sellers to sell the Purchased Shares and to take the
other actions required to be taken by the Sellers at the Closing are subject to
the satisfaction at or prior to the Closing of the following condition precedent
(unless satisfaction of such condition is waived by the Sellers).
The Purchaser shall have performed and complied with, in all material respects,
all agreements, covenants and undertakings required by this Agreement to be
performed or complied with by the Purchaser prior to or at the Closing.
In any event, the condition set out in this Article is for the benefit of the
Sellers and may under no circumstances be invoked by the Purchaser. The Sellers
may waive it in whole or in part, in writing, at any time prior to the Closing
Date.
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7.3 Should the conditions precedent of Article 7 of this Agreement be not
fulfilled or waived according to the above stipulations at the latest on
September 30, 2000, this Agreement shall be terminated unless the Parties
otherwise agree on the contrary and the Parties will be released from all their
obligations under this Agreement. However, the provisions of Articles 20.2 and
22 of this Agreement shall survive any termination hereof.
ARTICLE 8 PRE-CLOSING COVENANTS
8.1 CONSENTS AND APPROVALS
The Sellers shall use their best efforts to obtain all Governmental Approvals
and all Third Party Consents and shall diligently assist and cooperate with the
Purchaser in preparing and filing all documents required to be submitted by the
Purchaser to any Governmental Authority in connection with the transactions
contemplated by this Agreement and in obtaining any Governmental Approvals. If
the Purchaser desires to organize a meeting for the purpose of presenting the
transactions contemplated herein to the French competition authorities, the
Sellers shall be granted the right to attend to it and shall be provided with a
copy of the documents transmitted to said authorities.
The Purchaser shall cooperate with the Sellers in order to obtain the Third
Party Consents and, in particular, the waiver from Netgem of its right to
terminate the agreement entered into with BEA on March 14, 2000 in case of
change of control of BEA.
8.2 ACCESS AND INFORMATION
From the date hereof until the Closing Date, upon the prior reasonable written
request of the Purchaser, the Sellers shall permit, and shall cause BEA to
permit the Purchaser and its representatives reasonable access during normal
business hours to the premises, the books and records and the senior top
management of BEA and will furnish the Purchaser and its representatives all the
information as such Persons may reasonably request.
8.3 INTERCOMPANY AGREEMENTS
Except as set forth in EXHIBIT 8.3.a of this Agreement, the Sellers shall obtain
the termination of all intercompany agreements relating to the Assembly Business
on or prior to the Closing Date as they are listed in EXHIBIT 12.16.1 of this
Agreement (including the intercompany tax agreements) and provide Purchaser with
evidence of such terminations.
The Sellers shall cause BEA and its relevant Affiliates to constitute the
association syndicale libre relating to the industrial site of "▇▇▇▇▇▇ - Nid de
Pie" in accordance with the by-laws in the form attached in EXHIBIT 8.3.b of
this Agreement.
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8.4 NOTICES OF CERTAIN EVENTS
Between the date hereof and the Closing Date, the Sellers will notify the
Purchaser as soon as practicable of:
(a) any notice or other communication from any Person alleging that the consent
of such Person is or may be required in connection with the transactions
contemplated by this Agreement;
(b) any notice or other communication from any Governmental Authority in
connection with the transactions contemplated by this Agreement;
(c) any matter hereafter arising or discovered that, if existing or known at
the date of this Agreement, would have been required to be set forth or
described in an Exhibit to this Agreement or that constitutes a material
breach or prospective material breach of this Agreement by the Sellers; and
(d) any notification from a customer or a supplier of BEA of the type described
in Article 12.15.5 of this Agreement.
The delivery of any such notice shall not affect the Purchaser's remedies
hereunder.
8.5 SEC REQUIREMENTS
The Sellers shall cause their auditors to audit in accordance with the
Accounting Principles the 1999 Financial Statements as required by the U.S.
Securities and Exchange Commission.
ARTICLE 9. CLOSING
9.1 CLOSING DATE
Subject to the satisfaction of the conditions precedent referred to in Article 7
of this Agreement, the Closing shall take place in Paris, France on a date to be
agreed upon by the Parties and in any event on or prior to September 30, 2000,
unless such date is extended by written agreement signed by the Parties. This
Agreement shall be terminated if the Closing does not occur on or before such
date, unless the Parties otherwise agree on the contrary and the Parties will be
released from all their obligations under this Agreement. However the provisions
of Articles 20.2 and 22 of this Agreement shall survive any termination hereof.
9.2 ACTIONS TO BE TAKEN ON THE CLOSING DATE
9.2.1 On the Closing Date, all of the events listed below shall occur, each
event being conditional upon the occurrence of all of the others, so that
if one of the listed events does not occur, the Party or Parties (the
Sellers being considered as one Party for the purpose of this Article 9)
which are not responsible, pursuant to this Article 9.2.1, for causing
that event to occur shall be entitled to refuse to proceed with Closing
and can terminate this Agreement without liability to the other Party or
agree to postpone for successive 1-month periods the occurrence of the
event. In the event of termination, the provisions of Articles 20.2 and 22
of this Agreement shall survive.
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9.2.2 The Sellers shall deliver or cause to be delivered to the Purchaser:
(i) originals of the resignation letters of all members of the Board of
Directors of BEA, effective as of the Closing Date;
(ii) duly executed ordres de mouvement in respect of the Purchased Shares made
in the name of the Purchaser and a duly executed short form share
transfer agreement in the French language with respect to the Purchased
Shares;
(iii) BEA's shareholders' registry (registre des mouvements de titres) and
shareholders' individual accounts (comptes individuels d'actionnaires)
together with BEA's minute books relating to actions taken by its
stockholders and Board of Directors;
(iv) a certified copy of the minutes of the meeting of the Board of Directors
of BEA calling a shareholders meeting to be held on the Closing Date for
the purpose of appointing new directors nominated by the Purchaser and
changing the corporate name of BEA;
(v) (a) a certified copy of the notifications to the members of the work's
council (comite d'entreprise) of BEA and (b) the minutes of all the
meetings of the work's council (comite d'entreprise) of BEA with its
opinion concerning the transfer of control of BEA to the Purchaser and
the Reorganization Plan;
(vi) copy of evidence of termination (with effect on the Closing Date) of
all outstanding intercompany agreements relating to BEA, except for
those listed in EXHIBIT 8.3.a of this Agreement;
(vii) a certificate executed by the Sellers confirming that Sellers have
performed and complied with, in all material respects, all agreements,
covenants and undertakings required by this Agreement to be performed
or complied with by Sellers prior to or at the Closing;
(viii) a certificate executed by the Sellers confirming that since January 1,
2000 to the Closing Date, no event, circumstance, condition, fact, effect
or other matter having, or which is reasonably likely to have within 3
months following the Closing Date, a Material Adverse Effect has
occurred;
(ix) all Third Party Consents required in connection with this Agreement;
(x) a list of the contracts entered into by BEA which include a provision
relating to the non-solicitation of employees;
(xi) the documents listed in EXHIBIT 7.1(b) of this Agreement (including a
copy of the waiver by the town hall of Angers of its urban preemption
right regarding the contribution of the PCB Business and the PCB
Business Property and a duly executed copy of the PCB Supply
Agreement);
(xii) the Trademark License Agreement, the Industrial Supply Agreement,
the Transition Services Agreement, the BEA Lease Amendment Agreement
and the CIBA Lease, duly executed by the Sellers and the relevant
Sellers' Affiliates.
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9.2.3 The Purchaser shall:
(i) pay to Bull the Closing Purchase Price;
(ii) acting on behalf of BEA, pay to Bull the Estimated Intercompany Debt;
(iii) duly execute and deliver the short form share transfer agreement in the
French language with respect to the Purchased Shares;
(iv) cause BEA to duly execute the Trademark License Agreement, the Industrial
Supply Agreement, the Transition Services Agreement, the BEA Lease
Amendment Agreement and the CIBA Lease.
ARTICLE 10 CLOSING FINANCIAL STATEMENTS
10.1 CLOSING FINANCIAL STATEMENTS
The Sellers and the Purchaser shall use all reasonable endeavors to ensure that,
promptly after Closing, the Closing Financial Statements are prepared in
accordance with the provisions of this Article 10.
10.2 DELIVERY OF THE CLOSING FINANCIAL STATEMENTS
The Purchaser shall arrange for the Closing Financial Statements to be prepared
by the Purchaser and audited by Purchaser's Auditors on the basis of the
Accounting Principles, with a view to deliver to the Sellers (with a copy to the
Sellers' Auditors) within 90 days of Closing:
(a) proposed Closing Financial Statements (including a list of the Accounts
Receivable); and
(b) a certificate (the ADJUSTMENT CERTIFICATE), signed by an authorized
representative of the Purchaser, setting forth the value of the Closing Net
Assets, the Intercompany Debt, the Intercompany Debt Adjustment and the
Accounts Receivable, based on the information set forth in the proposed
Closing Financial Statements.
10.3 REVIEW BY BULL
Bull shall notify the Purchaser within 30 days of receipt of such proposed
Closing Financial Statements and such Adjustment Certificate whether or not it
accepts them for the purposes of this Agreement and in particular whether or not
it has any objection to the valuation of the Closing Net Assets, the Net Assets
Adjustment, the Intercompany Debt, the Intercompany Debt Adjustment, and/or the
Accounts Receivable.
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If Bull notifies the Purchaser that it does not accept such proposed Closing
Financial Statements and/or such Adjustment Certificate:
(a) it shall set out its reasons for such non-acceptance and specify the
adjustments (and provide reasonable supporting evidence for such
adjustments) which, in its opinion, should be made to the proposed Closing
Financial Statements and to the Adjustment Certificate in order to comply
with the requirements of this Agreement and shall be deemed to have agreed
with all other items and amounts contained in the proposed Closing
Financial Statements and Adjustment Certificate; and
(b) the Parties shall use all reasonable endeavors (in conjunction with the
Sellers' Auditors and the Purchaser's Auditors) to meet and discuss the
objections of Bull and to reach agreement upon the adjustments (if any)
required to be made to the proposed Closing Financial Statements and the
Adjustment Certificate.
Any notification by Bull of non-acceptance shall be accompanied by the related
report of the Sellers' Auditors confirming the reasons for the non-acceptance
and the proposed adjustments.
If Bull is satisfied with the proposed Closing Financial Statements and the
Adjustment Certificate (either as originally submitted or after adjustments
agreed between Bull and the Purchaser) or if Bull fails to notify the Purchaser
of its non-acceptance of the proposed Closing Financial Statements and the
Adjustment Certificate within the 30-day period referred to in the first
paragraph of this Article 10.3, then the proposed Closing Financial Statements
and the Adjustment Certificate (incorporating any agreed adjustments) shall
constitute the Closing Financial Statements for the purposes of this Agreement
and the Closing Net Assets, the Net Assets Adjustment, the Intercompany Debt,
the Intercompany Debt Adjustment, and the Accounts Receivable as set forth in
the Adjustment Certificate shall be deemed to have been agreed by the Sellers as
being the Closing Net Assets, the Net Assets Adjustment, the Intercompany Debt,
the Intercompany Debt Adjustment, and the Accounts Receivable.
10.4 FAILURE TO AGREE
If Bull and the Purchaser do not reach an agreement within 30 days of Bull's
notice of non-acceptance under Article 10.3 of this Agreement, then the matters
in dispute shall be referred, on the application of either Party, for
determination by an independent firm of internationally recognized chartered
accountants to be agreed upon by Bull and the Purchaser (the EXPERT), it being
specified that, notwithstanding that dispute, that fraction of the Net Assets
Adjustment, of the Intercompany Debt Adjustment (if any) which will not be in
dispute will then be immediately paid or set off within 10 Business Days of the
notice of non-acceptance.
Failing agreement to appoint an Expert or if the Expert does not accept his
appointment or is unable to carry out his mission in accordance with the terms
of this Article 10.4, each of the Sellers and the Purchaser may via a refere
proceeding request the President of the Commercial Court of Paris to appoint an
independent firm of internationally recognized chartered accountants as Expert.
17
The following terms of reference shall apply:
(a) the Purchaser and the Sellers shall each promptly prepare a written
statement on the matters in dispute which (together with the relevant
documents) shall be submitted to the Expert for final determination; no
matters other than those listed in such statement, which shall include only
those disputes set forth in Bull's notice of non-acceptance, shall be
within the terms of reference of the Expert;
(b) the mission of the Expert shall be to review and resolve exclusively the
differences between Bull and the Purchaser and to determine the amount of
any and all of the items of the Adjustment Certificate;
(c) the Expert shall act as an expert in the sense of Article 1592 of the
French Civil Code (and not as an arbitrator) in making any such
determination which shall be final and binding on the Parties and shall not
be subject to any recourse before a court or arbitration tribunal, except
as necessary to enforce such determination;
(d) the fees and expenses of any such determination by the Expert shall be
borne between the Sellers and the Purchaser in such proportions as shall be
decided by the Expert who shall base his decision upon the relative extent
to which the Purchaser's and the Sellers' (collectively) respective
positions are upheld in the final determination of the Expert; and
(e) the Expert shall inform the Parties of his decision in writing within
thirty (30) days from his appointment.
10.5 PRINCIPLES TO BE APPLIED BY THE PARTIES AND THE EXPERT
For the purposes of the determination of the amount of the Closing Net Assets,
the Net Assets Adjustment, the Intercompany Debt, the Intercompany Debt
Adjustment and the Accounts Receivable, the Parties and the Expert shall be
bound by and shall apply the definitions, formula and other terms set forth in
this Agreement and the Accounting Principles.
For the avoidance of doubt, the final determination of the Closing Net Assets,
the Net Assets Adjustment, the Intercompany Debt, the Intercompany Debt
Adjustment and the Accounts Receivable shall be exclusively made in accordance
with this Article 10; in the event an Expert is appointed, it solely shall have
competence to resolve any and all matters that may be in dispute relating to the
determination of the Closing Net Assets, the Net Assets Adjustment, the
Intercompany Debt, the Intercompany Debt Adjustment and the Accounts Receivable.
If the Sellers and the Purchaser reach (or pursuant to Article 10.3 of this
Agreement are deemed to reach) an agreement on the Closing Financial Statements
or the Closing Financial Statements are finally determined at any stage in the
procedures set out in this Article 10:
(a) the Closing Financial Statements as so agreed or determined shall be the
Closing Financial Statements for the purposes of this Agreement and shall
be final and binding on the Parties; and
(b) the amount of the Closing Net Assets, the Net Assets Adjustment, the
Intercompany Debt, the Intercompany Debt Adjustment and the Accounts
Receivable, shall be
18
derived from the Closing Financial Statements; the Closing Net Assets, the
Net Assets Adjustment, the Intercompany Debt, the Intercompany Debt
Adjustment and the Accounts Receivable as agreed or determined shall be
deemed respectively the Closing Net Assets, the Net Assets Adjustment, the
Intercompany Debt, the Intercompany Debt Adjustment and the Accounts
Receivable for the purpose of this Agreement.
10.6 ACCESS
Each Party shall use all reasonable endeavors to ensure that the other Party,
the Purchaser's Auditors and the Sellers' Auditors each have access to all
relevant accounts, working papers including Auditors working papers and other
financial information of the other relating to the Assembly Business as are
reasonably necessary for the purposes of this Agreement.
ARTICLE 11. ACCOUNTS RECEIVABLE
11.1 ACCOUNTS RECEIVABLE PRINT-OUT
The Sellers shall prepare and deliver to the Purchaser on the Closing Date a
print-out (detailed by invoices) representing a good faith estimate of each
Account Receivable as at the Closing Date (the ACCOUNTS RECEIVABLE PRINT-OUT)
and a list of the related deposits, security or collateral therefor.
It is specified that the amounts contained in the Accounts Receivable Print-out
are for information purposes and that only the actual amounts of the Accounts
Receivable as determined in accordance with Article 10 above will be taken into
account for the purpose of this Article 11.
Each Account Receivable (on an invoice by invoice basis) having an individual
principal amount (VAT excluded) inferior to EUR 15,000 is referred to as a MINOR
ACCOUNT RECEIVABLE, and each Account Receivable (on an invoice by invoice basis)
having an individual principal amount (VAT excluded) superior to EUR 15,000 is
referred to as a MATERIAL ACCOUNT RECEIVABLE.
11.2 POST-CLOSING PAYMENT
The Purchaser will notify the Sellers of the amount which will be collected
(including by way of set-off) by BEA on each of its Material Accounts Receivable
existing on the Closing Date within 150 days following the Closing or, if the
actual amount of the Material Accounts Receivable has not been finally
determined within such 150-day period in accordance with Article 10 of this
Agreement, within the period ending on the date of such final determination (the
last day of the applicable period being the ACCOUNTS RECEIVABLE COLLECTION
DATE), such notification to be accompanied by a confirmatory statement from a
duly authorized representative of the Purchaser and to be sent within seven days
of the Material Accounts Receivable Collection Date, it being agreed that the
Sellers may have access during normal business hours and upon a reasonable prior
written notice from the Sellers to the documentation concerning the collection
of the Material Accounts Receivable within 14 days from the receipt of such
statement in order only to verify the status of payment of said Material
Accounts Receivable.
19
The Sellers shall, subject to the other provisions of this Article 11.2, pay to
BEA an amount equal to the difference, if positive, between the aggregate amount
of the Material Accounts Receivable, as finally determined in accordance with
Article 10 of this Agreement and the aggregate amount collected thereon as shown
in the notification referred to in the foregoing paragraph. Should said
difference be a negative figure, the Purchaser shall pay the amount thereof to
Bull, who will be responsible for distributing it between itself, Parent and
their Affiliates. Such payment (if any) shall be made in cash by wire transfer
of immediately available funds within seven (7) Business Days after the date of
the Accounts Receivable Collection Date.
The foregoing paragraphs shall apply mutatis mutandis to the Minor Accounts
Receivable, except that the period of 150 days referred to in the first
paragraph thereof shall be replaced by 240 days.
Upon payment of the amounts referred to in this Article 11.2, Bull shall become
subrogated in the rights of BEA in respect of the Accounts Receivable concerned,
and Purchaser shall cause BEA to simultaneously execute and deliver a quittance
subrogative (subrogation receipt) to Bull in the form set forth in EXHIBIT
11.2.(a) of this Agreement or any other document as may be required for that
purpose under applicable laws.
Bull shall notify the relevant customers within the shortest delay after the
date of the quittance subrogative of the transfer to the relevant Accounts
Receivable by delivering to them the notice set forth in EXHIBIT 11.2.(b) of
this Agreement.
Bull, as the owner of such Accounts Receivable as a result of the payment
mentioned above, shall then be free to proceed with the collection of such
Accounts Receivable as from the date of the quittances subrogatives. BEA shall
pay to Bull any amounts owed on such Accounts Receivable subsequently collected
by BEA after the Accounts Receivable Collection Date.
It is expressly agreed that Bull will have no recourse against the Purchaser or
BEA in the event of non-payment by the customers of the Accounts Receivable so
transferred. Neither the Purchaser nor BEA grants any guarantee whatsoever with
respect to such Accounts Receivable.
11.3 ACCOUNTS RECEIVABLE COLLECTION PROCEDURE
(a) The Purchaser shall, and shall cause BEA to, (x) attempt to collect in good
faith the amounts owed on the Accounts Receivable and apply to the
collection of the Accounts Receivable mentioned in the Accounts Receivable
Print-out (i) the same procedures as those applied to the collection of the
other accounts receivable of BEA and (ii) collection procedures that are at
least equivalent to those applied by BEA prior to the Closing Date and (y)
foreclose the security interests and call the guarantees securing the
Accounts Receivable on a timely basis and consistently with past practices.
(b) The Sellers shall not engage any actions or proceedings to collect any
amounts owed on Accounts Receivable and shall not in any way, either
directly or indirectly, contact the Party owing the Accounts Receivable,
except as otherwise provided for in this Article 11.3. A print-out with
respect to the Accounts Receivable shall be delivered promptly by the
Purchaser to the Sellers every 14 days. In addition, the Sellers shall be
entitled to contact the customers owing the Accounts Receivable together
with the
20
Purchaser, provided that they shall obtain the prior consent of the
Purchaser, which consent shall not be unreasonably withheld.
(c) Subject to the provisions below, the Purchaser shall not agree upon with
the relevant clients, or accept from them, a reduction or write-off of the
Accounts Receivable or a payment delay. Subject to the provisions below,
the payment obligation of the Sellers referred to in Article 11.2. above
shall cease to exist in respect of the amount of such a reduction or write-
off or, in case of payment delays, of the total amount of the Accounts
Receivable concerned. However, the Purchaser shall have the right, for
legitimate business reasons pertaining to BEA exclusively, to reasonably
reduce amounts owed on Accounts Receivable by the clients of BEA listed in
EXHIBIT 11.3.(c) of this Agreement in the event of a dispute with respect
to said amounts, up to an amount equal in the aggregate to EUR 500,000
provided that the Purchaser shall notify the Sellers of its intention to do
so and that the Sellers be afforded the possibility to contact the relevant
clients together with the Purchaser prior to effectuate such compromise.
ARTICLE 12. REPRESENTATIONS AND WARRANTIES
Bull irrevocably represents and warrants to the Purchaser as of the date hereof
as follows.
The Representations and Warranties shall be deemed reiterated on the Closing
Date unless expressly provided for as being made as at the date hereof or at any
other particular date. It is expressly agreed between the Parties that Bull
shall have the right to update the Exhibits or add new Exhibits to this Article
12 in view of the reiteration set forth in the foregoing sentence. This update
shall however not be treated as an exception to the Representations and
Warranties as set forth in this Article 12.
12.1 INCORPORATION - SHARE CAPITAL - TRANSFER OF THE PURCHASED SHARES TO
PURCHASER - SHAREHOLDERS AGREEMENT
12.1.1 BEA is a French societe anonyme with its registered office at ▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ registered with the Registry of Commerce and
Companies of Angers, under number 390 411 528. BEA is duly incorporated
and validly existing under the laws of France and has the full corporate
power and authority to own its assets and conduct its business as now
being conducted.
12.1.2 BEA has a capital of 201.782.000 French Francs consisting of 2.017.820
shares with par value of one hundred French Francs (100) each. The
Purchased Shares are fully paid up and validly issued and represent all
of the issued share capital of BEA and are properly registered in the
stock registry.
12.1.3 BEA has never been and is not unable to pay its debts as they fall due
(etat de cessation des paiements) and has never been and is not subject
to a judicial reorganization or rescheduling of its indebtedness
(redressement judiciaire), a judicial liquidation (liquidation
judiciaire) or any similar measure or proceedings (voluntary arrangement
with creditors, judicial reorganization proceedings, compulsory
liquidation or other). To the knowledge of the Sellers, such proceedings
are not about to be instituted against BEA.
21
12.1.4 There are no shareholders' agreements or undertakings among shareholders
other than the by-laws, entered into by the Sellers or other shareholders
or members of BEA in relation to the Purchased Shares.
12.2 PURCHASED SHARES -TRANSFER OF THE PURCHASED SHARES TO THE PURCHASER
12.2.1 BEA has not issued any equity securities other than the Purchased Shares.
All shares issued by BEA have equal voting rights and a right to benefits
in proportion to the percentage of share capital value which they
represent.
12.2.2 Bull has, and on the Closing Date will have, good title to and
unrestricted power to vote and sell the Purchased Shares and the
Purchased Shares are transferred to the Purchaser free from any Liens and
will represent 100% of the share capital of BEA.
12.2.3 BEA has no outstanding options, warrants, calls, guarantees, subscription
rights, offers, conversion rights, commitments, arrangements or any other
agreements of any nature, contractual or not, which will or may result in
the allotment or issue of any shares or any securities by BEA.
12.2.4 Upon consummation of the transactions contemplated by this Agreement and
signature and delivery by the Sellers to the Purchaser of share transfer
forms in respect of the Purchased Shares in the name of the Purchaser,
the Purchaser shall have a good title to the Purchased Shares and the
direct or indirect control of all dividends and voting rights of each of
the Purchased Shares.
12.2.5 As at the Closing Date, the Sellers or one of the Sellers' Affiliates
shall have validly acquired all shares of CIBA and shall have acquired
all the shares of BEA (hereinafter the PRIOR TRANSFERS). Bull warrants
that all Prior Transfers were completed in accordance with applicable
laws, regulations and rules and no liability will result for BEA or the
Purchaser from any of the Prior Transfers and BEA and the Purchaser will
have no obligations toward third parties with respect to such Prior
Transfers.
12.3 AUTHORIZATION - VALIDITY OF THIS AGREEMENT - NO CONFLICT OR VIOLATION
12.3.1 Parent is a French societe anonyme duly incorporated. EXHIBIT 12.3.1 of
this Agreement sets forth accurate and complete copies of the by-laws and
an Extrait K-bis relating to Parent. Bull is a French societe anonyme
duly incorporated. EXHIBIT 12.3.1 of this Agreement sets forth accurate
and complete copies of the by-laws and an Extrait K-bis relating to Bull.
12.3.2 The Sellers have full capacity, power and authority to complete the sale
of the Purchased Shares and the transactions contemplated in this
Agreement and to enter into and perform their obligations under this
Agreement. They have obtained all necessary authorizations in this
respect.
12.3.3 This Agreement constitutes a valid and binding agreement of the Sellers,
enforceable against it in accordance with the terms hereof.
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12.3.4 Neither the execution and the delivery of this Agreement nor the
performance by the Sellers of the transactions contemplated herein:
(i) will constitute a breach of any applicable law or regulation;
(ii) will violate or conflict with any of the provisions of the by-laws or
Extrait K-Bis of the Sellers and BEA;
(iii) will violate, conflict with or constitute a default under, or be
grounds for termination of, any contract, agreement, mortgage,
instrument or other act whatsoever or any order, judgment or ruling of
any Governmental Authority to which the Sellers or BEA is a party or
to which any of its Assets or Properties are bound; or
(iv) will result in the creation or imposition of any Lien on any asset of
BEA;
which would have a Material Adverse Effect.
12.3.5 No Governmental Approvals or Third Party Consent other than those
described in EXHIBIT 12.3.5 of this Agreement are required for the
execution and the performance of this Agreement and the completion of the
transactions contemplated herein.
12.3.6 The Sellers and BEA have complied with French laws and regulations
relating to the information and consultation of the employees'
representatives with respect to the transactions contemplated herein.
12.4 DECISIONS OF MANAGEMENT BODIES AND RECORDS
12.4.1 EXHIBIT 12.4.1 of this Agreement sets forth accurate and complete copies
of the by-laws of BEA and the Extrait K-bis relating to BEA. The by-laws
of BEA and BEA's Extrait K-bis are in compliance with applicable laws and
regulations, contain all amendments made to date and are accurate,
complete and up-to-date.
12.4.2 All decisions of the boards of directors of BEA, of the president of the
board of BEA, and the general meetings of shareholders of BEA have been
taken in accordance with the by-laws of BEA and all applicable corporate
laws and regulations.
12.4.3 All decisions in respect of BEA which are subject to authorization or
ratification by the board of directors of BEA have been duly authorized
or ratified and all agreements subject to Articles 101 et. seq. of the
French company law of July 24, 1966 have been brought to the attention of
the statutory auditors and have been duly authorized or ratified by the
general meeting of shareholders of BEA.
12.4.4 Except as set forth in EXHIBIT 12.4.4 of this Agreement, all original
corporate minutes books and accounting books of BEA:
(i) have been properly and accurately maintained in all material respects,
are or, as of the Closing Date, will be, in the possession of BEA and
contain a true and accurate record of all matters required by applicable
law to be entered therein; and
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(ii) do not contain or reflect any material inaccuracies or discrepancies, and
no notice that any of such corporate minutes books and accounting books
are incorrect or should be rectified, has been received.
12.5 RECENT RESTRUCTURING
12.5.1 All corporate transactions contemplated by the previous reorganizations
described in EXHIBIT 12.5.1 of this Agreement and involving BEA have been
consummated prior to the date hereof pursuant to valid and binding
agreements among the relevant Parties (a list of which is attached hereto
in EXHIBIT 12.5.1), and in compliance with all applicable laws, rules and
regulations and contractual obligations of BEA and all formalities
relating to such transactions have been completed prior to the Closing
Date. In particular, all corporate transactions contemplated by the
Reorganization Plan will be consummated between the date hereof and the
Closing Date pursuant to valid and binding agreements among the relevant
Parties (copies of which will be delivered on the Closing Date by the
Sellers to the Purchaser and a list of which is attached hereto as
EXHIBIT 7.1(b)), and in compliance with all applicable laws, rules and
regulations and contractual obligations of COFIP, CIBA and BEA. The PCB
Business constitutes a complete branch of activities (branche complete
d'activites) and the French special regime (regime juridique des
scissions) will be validly elected for the purpose of completing the
Reorganization Plan. All formalities relating to the Reorganization Plan
will be completed on or prior to the Closing Date, except for those
relating to the registration of the PCB Business Property with the
relevant mortgage registry.
12.5.2 No liabilities (including Taxes) will result for BEA or Purchaser from
any of the transactions mentioned in Article 12.5.1 of this Agreement and
BEA and Purchaser have no obligations toward third parties with respect
to such transactions. No liability (including Taxes) resulting from the
carrying out of the PCB Business until the Closing Date will be incurred
by BEA or the Purchaser after the Closing Date.
It is however specified, for the avoidance of doubt, that any capital
gain tax (if any) resulting from the transfer of the PCB Business will be
incurred by BEA but will not give rise to an indemnification pursuant to
Article 13 of this Agreement if only and to the extent it will be taken
into account in the Net Assets Adjustment provided for in Article 4 of
this Agreement.
12.5.3 None of the creditors of BEA has (or shall have) exercised any of the
rights granted to them by applicable laws and regulations as a result of
the transactions mentioned in Article 12.5.1 of this Agreement.
12.5.4 Except the transactions described in Article 12.5.1 of this Agreement,
since 1995, BEA has not been subject or party to any increase or decrease
of its capital, purchase of its own shares, merger, demerger or
contribution in kind of assets or sale or purchase of assets.
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12.6 OPERATIONS
12.6.1 BEA has and has always had full corporate power and authority to operate
its businesses and its assets in compliance with applicable laws and
regulations in force.
12.6.2 All licenses, permits and authorizations necessary to carry out BEA's
activities are set forth in EXHIBIT 12.6.2 of this Agreement. BEA is not
aware of any violation of such license, permits or authorizations,
whether contested or not, which may have a prejudicial effect on its
business. These licenses, permits and authorizations have been properly
obtained by BEA, are in full force and effect and are the only ones
required to conduct BEA's activities as currently conducted. Except as
set forth in EXHIBIT 12.6.2 of this Agreement, to the knowledge of the
Sellers, there are no legitimate grounds which will or are reasonably
likely to result in the suspension, revocation, termination or material
limitation of these licenses, permits and authorizations, including
without limitation as a result of the transfer of the Purchased Shares
pursuant to this Agreement.
12.6.3 Except as described in EXHIBIT 12.6.3 of this Agreement, no powers of
attorney given by BEA (other than to the holder of an encumbrance solely
to facilitate its enforcement) are currently in force. No Person acting
as agent or otherwise, is entitled or authorized to bind or commit BEA to
any obligation which is not in the ordinary course of BEA's business, and
the Sellers are not aware of any Person purporting to do so.
12.6.4 BEA is not or has not been in breach of any competition law (either
French, European, United States or other), which breach would have a
Material Adverse Effect upon BEA and the Sellers are not aware of any
circumstances which could lead to such a breach.
12.7 FINANCIAL FACILITIES
Debts and obligations
12.7.1 The loans, credit facilities and other borrowings or indebtedness of any
nature whatsoever, including Intercompany Debt, (hereinafter the
FINANCIAL FACILITIES), that have been contracted or incurred by BEA are
listed in EXHIBIT 12.7.1 of this Agreement. They will be shown in the
Closing Financial Statements.
12.7.2 The Estimated Intercompany Debt shall be repaid on the Closing Date. BEA
shall not remain liable in any manner vis-a-vis the Sellers or their
Affiliates after the date of payment of the Intercompany Debt by the
Purchaser, on behalf of BEA, in accordance with the terms of this
Agreement, except to the extent required by this Agreement or the
Ancillary Agreements, and by the intercompany agreements which will not
be terminated on the Closing Date, as listed in EXHIBIT 8.3.a of this
Agreement and, as the case may be, by any agreement entered into by BEA
and a Bull Affiliate after the Closing Date.
12.7.3 BEA is not in default nor, to the knowledge of the Sellers, is
reasonably likely to be in default due to a reason which is prior to the
Closing Date within three months after the Closing Date under any of the
Financial Facilities.
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Bank accounts
12.7.4 A list of the credit institutions with which BEA has an account or a
safe, and a list of the Persons having access to said accounts and safes,
and authorized to perform transactions involving said accounts, is set
out in EXHIBIT 12.7.4 of this Agreement.
Guarantee, off-balance sheet commitments
12.7.5 There are on the date hereof and there will be on the Closing Date no
guarantees, securities, sureties, comfort letters granted by BEA.
12.7.6 Except as set forth in EXHIBIT 12.7.6 hereto, there is no guarantee,
security endorsement, surety, or comfort letter for the benefit of a
third party (including shareholders or employees) in respect of the
performance of BEA's obligations granted by the Sellers, any of its
Affiliates or any third party.
12.7.7 All off-balance sheet commitments of BEA are listed in EXHIBIT 12.7.7 of
this Agreement.
12.8 ASSETS
12.8.1 BEA has good and valid title over its assets, whether they are tangible
or intangible (hereinafter the ASSETS) which appear in the 1999 Financial
Statements or those which have been acquired since January 1, 2000,
except those Assets which have been sold in the normal course of business
consistent with past practices in accordance with Article 12.25 of this
Agreement.
12.8.2 Except as set forth in EXHIBITS 12.8.2(i) and 12.8.2(ii) of this
Agreement, none of the Assets reflected in the 1999 Financial Statements
or that will be reflected in the Closing Financial Statements or acquired
thereafter is subject to any Lien, except for:
(i) Liens for Taxes not yet due or being contested in good faith as listed
in EXHIBIT 12.8.2 (i) of this Agreement; or
(ii) pledges or other Liens given in the ordinary course of business as
listed in EXHIBIT 12.8.2 (ii) of this Agreement.
12.8.3 The Assets comprise in all material respects all the assets necessary
for the carrying out of the Assembly Business, as currently conducted,
except as set forth in the intergroup agreements listed in EXHIBIT
12.16.1 of this Agreement.
12.8.4 The facilities and manufacturing equipment of BEA have been regularly
maintained.
12.9 Real estate property
12.9.1 EXHIBIT 1.2 of this Agreement describes the Assembly Business Property.
Except as otherwise specified in EXHIBIT 12.9.1 of this Agreement, BEA
has good and valid title over its real estate properties which may be
freely disposed of, are free and clear of any Lien, mortgage, easement,
pre-emptive right, pacte de preference (right of first refusal), purchase
option, lease rights or other similar right in favor of third parties.
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Except as provided in EXHIBIT 12.9.1 of this Agreement, BEA has free
access to the Assembly Business Property and to all necessary public
services without need to obtain any right or easements from any other
Person.
12.9.2 All permits and authorizations (such as construction or demolition
permits, certificates of compliance) required by applicable law to be
obtained by BEA to conduct its businesses as currently conducted have
been duly obtained, published and complied with.
12.9.3 The Assembly Business Property is located on land references ES 27 and
ES 40, as indicated in the map attached in EXHIBIT 12.9.3 of this
Agreement. Land references ES40 result from the division of larger land
references. Any authorizations for these divisions into new land
references have been obtained, and all the formalities required by
applicable law related to these divisions have been complied with. The
Assembly Business Property is comprised in Lot F, as indicated on the
map attached in EXHIBIT 12.9.3 of this Agreement.
12.10 LEASES
12.10.1 There are no leases, sub-leases or financial leases other than the
leases listed in EXHIBIT 12.10.1 of this Agreement (hereinafter the
LEASES).
12.10.2 BEA has complied in all material respects with the terms and conditions
of its Leases. BEA has not received any notification relating to (i) an
increase in rent or rental charges of the Leases other than in
accordance with applicable laws and regulations, (ii) a non-renewal or
(iii) the termination of the Leases.
12.10.3 No sublease or other occupation or tenancy has been authorized by BEA
beyond the express provisions of the Leases, and therefore no part of
the Properties is occupied except as pursuant to the Leases.
12.10.4 BEA has not entered into any Lease with respect to real estate property
as tenant.
12.11 INVENTORY AND WORK IN PROCESS
12.11.1 The goods (semi-finished goods, finished goods, or residual goods),
merchandises, supplies, work in process, finished products and raw
materials in BEA inventories (hereinafter the INVENTORY) are in good
condition, other than ordinary wear and tear, and of such quality and
quantity as appropriate as will make them usable and marketable in all
material respects in BEA's ordinary course of business consistent with
past practices subject to applicable reserves as stated in the 1999
Financial Statements or as will be stated in the Closing Financial
Statements.
12.11.2 BEA has good and marketable title to its Inventory free and clear of any
Lien, except for retention of title clauses (clauses de reserve de
propriete) benefiting to suppliers in the ordinary course of business.
Goods that have been consigned by a customer of BEA for BEA's use in
connection with the Assembly Business can be identified and have been
regularly maintained.
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12.12 COMPUTER SYSTEMS
12.12.1 Except as otherwise provided for in the Transition Services Agreement
and in the Trademark License Agreement, the domain names, data bases,
websites, computers, software and software packages used by BEA are
owned by it, or are subject to licenses, authorizations or rights of use
for the benefit of it. All amounts related thereto, if any, payable by
it have been duly paid. No Person is entitled to receive any royalty in
respect of the use, development and exploitation by BEA or its licenses
of the software owned by BEA. The change of control of BEA will not
affect the right of BEA to use the domain names, data bases, websites,
computers, software and software packages in accordance with the terms
and conditions of the agreements set forth in EXHIBIT 12.15.3 and
EXHIBIT 12.14.1 of this Agreement, it being specified that, except for
the agreements set forth in EXHIBIT 12.15.3 of this Agreement, any
further specified improvements, enhancement, updates and upgrades of
software listed in EXHIBIT 12.14.1 of this Agreement will need to be
performed pursuant to new conditions to be agreed-upon between BEA and
the relevant licensors.
12.12.2 To the knowledge of the Sellers, BEA's computers, software and software
packages are not materially faulty or defective. They are installed with
normal protective devices, in particular against software viruses, to
prevent a Material Adverse Effect on BEA by the material failure of such
computers, software and software packages. BEA's businesses have not
suffered a Material Adverse Effect by failure to provide contracted
services to customers by reason of the advent of the Year 2000.
12.13 ENVIRONMENT
(a) Except as set forth in EXHIBIT 12.13. (a) of this Agreement, BEA operates
the Assembly Business and the Properties in compliance with the regulations
currently in force relating to town planning, waste and asbestos and more
generally with environmental laws and regulations and holds the
authorizations required pursuant to the law of July 19, 1976 on classified
installations, as amended from time to time, and related environmental laws
and regulations.
(b) BEA has obtained all other permits, consents, licenses, certificates and
other authorizations and approvals required in connection with the conduct
of its business under the environmental laws and regulations (the FRENCH
ENVIRONMENTAL PERMITS). BEA complies with the French Environmental Permits
which are in full force and effect and will not be suspended, revoked or
limited as a result of the acquisition of the Purchased Shares by the
Purchaser.
(c) Except as set forth in EXHIBIT 12.13. (c) of this Agreement, BEA is not
subject to any complaint, judicial or administrative proceeding concerning
a violation of the regulations currently in force relating to town
planning, waste and asbestos and more generally of the environmental laws
and regulations and has no obligations or liabilities whatsoever with
respect to such laws and regulations;
(d) BEA carried out an environmental audit relating to soil and underground in
February 1994 and in November 1999 on Angers facilities; the audit reports
are attached hereto as EXHIBIT 12.13.(d) of this Agreement; a report on
asbestos from APAVE is also attached as EXHIBIT 12.13.(d) of this
Agreement;
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(e) BEA has not released into the air, water or ground any waste or substance
which may present any danger to public health and safety or to the
protection of the environment (the DANGEROUS SUBSTANCE) and which are
liable, due to their nature or quantities to give rise to a claim made by
any Governmental Authorities or any third party under applicable laws. The
Assembly Business Property (buildings, lands and underground) contains no
Dangerous Substances;
(f) The PCB Business activities have not polluted the Assembly Business
Property. For the avoidance of doubt, a pollution which would appear after
the Closing Date and which would have its origin on or prior to Closing
shall be deemed a pollution prior to Closing;
(g) Except as set forth in EXHIBIT 12.13.(g) of this Agreement, no tanks or
vessels with Dangerous Substances are located on the Properties;
(h) The Assembly Business activities do not have any polluting consequences for
BEA. For the avoidance of doubt, a pollution which would appear after the
Closing Date and which would have its origin on or prior to Closing shall
be deemed a pollution prior to Closing.
12.14 INTELLECTUAL AND INDUSTRIAL PROPERTY
12.14.1 A list of all trademark, patent protected know-how, softwares and other
rights related to the operation of computer systems, logos and other
intellectual or industrial property rights (registered or under
application) used or owned by BEA in the conduct of its business as
presently conducted (hereinafter the INTELLECTUAL PROPERTY RIGHTS), is
set forth in EXHIBIT 12.14.1 of this Agreement.
BEA has full and valid ownership of or licenses to use rights over its
Intellectual Property Rights required to conduct its businesses as
presently conducted, free and clear of any Liens, except as set forth in
EXHIBIT 12.14.1 of this Agreement.
12.14.2 There is no pending, nor to the knowledge of the Sellers, threatened
litigation contesting the right of BEA to use any of the Intellectual
Property Rights required to conduct its business as presently conducted,
except as set forth in EXHIBIT 12.14.2 of this Agreement.
12.14.3 The license agreements relating to the Intellectual Property Rights,
other than ordinary software licenses, entered into by BEA are listed in
EXHIBIT 12.14.3 of this Agreement. All licenses are in full force and
effect, valid and enforceable and, except as set forth in EXHIBIT
12.14.3 of this Agreement, the consummation of the transactions
contemplated by this Agreement will not cause the terms of such licenses
to change from those currently in effect immediately prior to the
Closing Date.
12.14.4 BEA has not infringed any valid and enforceable intellectual and
industrial property rights of any third party, which infringement would
have a Material Adverse Effect on BEA.
29
12.14.5 To the knowledge of the Sellers, no third party infringes the
Intellectual Property Rights.
12.15 CONTRACTS
12.15.1 Except as set forth in EXHIBIT 12.15.1 of this Agreement, none of the
Material Contracts expressly provides by its terms that the completion
of the transactions contemplated in this Agreement entitles the other
party to such Material Contracts to terminate or to modify the terms of
such Material Contracts.
For the purpose hereof, MATERIAL CONTRACTS means any contract (excluding
orders) entered into by BEA (i) with a remaining duration as from the
date hereof in excess of two years and involving payments yearly to or
from BEA in excess of EUR 100,000 (or the corresponding amount in the
currency used in such contract), or (ii) involving payments, yearly to
or from BEA in excess of EUR 500,000 (or the corresponding amount in the
currency used in such contract) or (iii) with a termination penalty
clause, such penalty exceeding an amount of EUR 100,000 or (iv) with a
non compete provision (including provisions relating to the non-
solicitation of customers) or (v) with an exclusive supply undertaking.
A list and a complete copy of all Material Contracts (including
amendments thereto) is attached in EXHIBIT 12.15.1 of this Agreement,
except for the utilities agreements.
There are no breaches to material obligations resulting from or arising
out of any Material Contracts entered into by BEA and attributable to
it.
To the knowledge of the Sellers, there are no breaches to material
obligations resulting from or arising out of any Material Contracts
entered into by BEA and attributable to any contractors.
All Material Contracts entered into by BEA are valid, binding and
enforceable in accordance with their terms. The general conditions of
sale of BEA comply with French law.
12.15.2 The terms and conditions of the group Bull supplier agreements entered
into by the Sellers shall cease to benefit BEA as from the Closing Date.
EXHIBIT 12.15.2 of this Agreement lists the group Bull suppliers with
which BEA has made purchases for an amount (VAT excluded) of more than
EUR 100,000 in 1999.
12.15.3 Except as mentioned in EXHIBIT 12.15.3 of this Agreement, BEA has not
entered into any Infogerance agreement or any other commercial
agreement.
12.15.4 EXHIBIT 12.15.4 of this Agreement lists the "top" twenty (20) customer
and supply related agreements involving BEA, as measured by the turnover
or purchases during the twelve (12) month period immediately preceding
the date of this Agreement.
12.15.5 Except as set forth in EXHIBIT 12.15.5 of this Agreement, neither the
Sellers nor BEA have received between January 1, 2000 and the date
hereof a notification from a customer or a supplier of BEA indicating
that he intends to or has recently decided to cease to use the services
or products thereof or reduce his supplies to BEA for any reason,
including in connection with this Agreement, provided such customer or
supplier represents a turnover or purchases in the aggregate (for the
period between January 1, 2000 and the date hereof) in excess of EUR
1,000,000. For the purpose of this clause, turnover and purchases will
include outstanding orders. To the knowledge of the ▇▇▇▇▇▇▇, ▇▇▇ is not
aware of any facts or circumstances which are liable to result in such
an intention or decision.
30
12.15.6 To the knowledge of the Sellers, there are no grounds for termination or
suspension of any Material Contract to which BEA is a party; BEA has not
received notice of any intention to terminate or suspend any such
agreements.
12.15.7 Except as set forth in EXHIBIT 12.15.7 of this Agreement, BEA has not
entered into any agreement, the termination of which will result in BEA
being required to hire one or several employees of the relevant
contractor.
12.16 INTER-GROUP AGREEMENTS
12.16.1 There are no intergroup agreements between BEA on the one hand and any
of the Sellers or their Affiliates on the other hand, other than those
listed in EXHIBIT 12.16.1 of this Agreement.
12.16.2 The Sellers will obtain the termination (without any indemnity or
penalty of any kind and without any obligation for BEA to hire employees
of the relevant contractor) of all intercompany agreements relating to
the Assembly Business on or prior to the Closing as listed in EXHIBIT
12.16.1 of this Agreement with the exception of the agreements as listed
in EXHIBIT 8.3.a of this Agreement.
12.17 EMPLOYEES AND COLLECTIVE AGREEMENTS
12.17.1 The list of employees of BEA is attached as EXHIBIT 12.17.1 of this
Agreement and indicates their employment date, functions, base salary
and other recurring remuneration. EXHIBIT 12.17.1 of this Agreement also
includes the "ADECCO" agreement pursuant to which BEA employs temporary
employees (interimaires). On May 30, 2000, BEA employed 193 temporary
employees.
12.17.2 Except as set forth in EXHIBIT 12.17.2 of this Agreement, and except for
any increase rendered mandatory pursuant to applicable collective
bargaining agreement or the current negotiations on salaries as
described in EXHIBIT 12.17.2 of this Agreement or an employment
agreement, provided in the latter case that such increase is customary
company practice, BEA is not obliged to increase the current rates of
salary and/or remuneration or to grant any bonus or any advantage to any
of its employees at any future date.
12.17.3 Except what is mandatory under French law, there is no pension plan,
profit sharing plan, insurance, incentive, retirement benefit, life or
health insurance policy, medical insurance, employee benefit, severance
plan, or any other contract for the benefit of BEA's employees in
existence or proposed to be created other than those described in
EXHIBIT 12.17.8 of this Agreement.
31
12.17.4 BEA applies the collective bargaining agreements listed in EXHIBIT
12.17.4 of this Agreement which are all collective bargaining
agreements to which BEA is bound.
12.17.5 Subject to what is described in EXHIBIT 12.17.5 of this Agreement, BEA
has complied with and is complying in all material respects with all
statutory or regulatory labor, employment, discrimination and social
securities laws, rules, regulations and requirements with respect to
its employees and independent contractors, including, but not limited
to, contributions to the social security scheme (including without
limitation health insurance, retirement and unemployment insurance,
workers' compensation insurance, and employees' supplemental social
security guarantees) and to safety and hygiene of employees, to the
extent applicable. EXHIBIT 12.17.5 of this Agreement also describes the
current litigation with the French URSSAF concerning BEA.
BEA has complied in all material respects with all of its legal and
regulatory obligations in respect of representation of employees and
union branches.
12.17.6 BEA has complied, in all material respects, with the terms of all the
employment contracts.
12.17.7 Except as indicated in EXHIBIT 12.17.7 of this Agreement, BEA (i) does
not owe any sum to any employee, except for salaries for the current
monthly period and accrued but unused vacation in the last twelve
months, the prorated share amount of the thirteenth month, the prorated
share of the bonus, and the expenses incurred by the employees for the
account of BEA, and (ii) has no knowledge of, during the last three
years, any accident caused within its premises.
12.17.8 None of the employees of BEA benefits from severance or like provisions
in the event of dismissal, resignation or redundancy which would oblige
BEA to pay amounts (i) exceeding those amounts provided pursuant to law
and applicable agreements and/or plans or (ii) due pursuant to a
"golden parachute" clause. Except as described in EXHIBIT 12.17.8 of
this Agreement, none of these employees has the right to a pension or
other advantage at the time of retirement that exceeds that which is
provided under law and applicable agreements and the retirement schemes
and complementary contingency funds.
12.17.9 EXHIBIT 12.17.9 of this Agreement describes in general terms the labor
strikes, work slowdowns and stoppages which have arisen within the last
two (2) years with respect to BEA and to the knowledge of the Sellers,
the labor strikes, work slowdowns and stoppages that are reasonably
likely to arise within a period of three months from the Closing Date.
12.17.10 Except as described in EXHIBIT 12.17.10 of this Agreement, since
January 1, 2000, BEA has not given and does not intend to give (except
when justified by a fault of the employee, whatever be the gravity of
the fault) to any employee notice of termination of employment. EXHIBIT
12.17.10 of this Agreement lists all employees who voluntary terminated
their employment with BEA since January 1, 2000. To the knowledge of
the Sellers, no employee having a base annual salary in excess of EUR
50,000 intends to terminate its employment with BEA. Currently, BEA has
not any corporate policy or a procedure relating to reductions in force
for economic reasons.
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12.17.11 Except as described in EXHIBIT 12.17.11 of this Agreement or as
reflected in the 1999 Financial Statements or the Closing Financial
Statements, BEA has no liability whatsoever to make any payment to or
for the benefit of any Person in respect of past service, compensation
for termination of employment or for accidents at work. BEA has paid
all commissions and/or bonuses for the year ended December 31, 1999 and
the commissions and/or bonuses and/or the prorated share amount of the
thirteenth month and/or the expenses incurred by the employees for the
account of BEA for the year 2000 will be reflected and accrued or
provided for, as a case may be, on a prorata basis, in the Closing
Financial Statements.
12.17.12 To BEA's knowledge, the non-compete obligations contained in BEA's
employment contracts have always been successfully enforced against
defaulting employees.
12.17.13 Based solely on information provided by employees to BEA, (i) each
employee of BEA is in compliance with all applicable visa and work
permit requirements, and (ii) no visa or work permit held by an
employee of BEA will expire during the six (6) month period following
the Closing Date.
12.17.14 Except as described in EXHIBIT 12.17.5 of this Agreement, BEA has not
received any notification of action by any regulatory body such as the
French Inspection du Travail relating to non-compliance of laws or
regulations.
12.17.15 The terms and conditions of the employment agreements binding BEA to
its employees comply with the legal and regulatory provisions and the
collective bargaining agreements (conventions collectives) applying to
BEA. BEA has complied with the terms of the applicable collective
bargaining agreements.
12.17.16 Neither BEA nor BEA's officers have been convicted for a hindrance
offence (delit d'entrave) or any charge subsequent to a refusal or
delay in establishing works councils, employee profit sharing schemes
or health and safety committees.
12.17.17 In respect of BEA, the headcount at the Assembly Business (excluding
temporary employees) on the Closing Date shall remain substantially
consistent with that shown in EXHIBIT 12.17.17 of this Agreement, which
excludes the temporary employees.
12.18 INSURANCE
Until the Closing Date, BEA has been properly insured with good standing
insurance companies against all risks with respect to which it is usual or
prudent, for entities of its standing and carrying out the type of activity
carried out by it, to take an insurance coverage and in particular against tort
liability (including product related), loss of assets and loss of income. BEA
has complied in all material respects with its insurance policies.
A list of insurance policies subscribed by BEA is set forth in EXHIBIT 12.18(a)
of this Agreement. Such list indicates the risks covered, the maximum amounts
of compensation and the deductibles.
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All premiums with respect to such insurance policies have been duly paid and
each of such insurance policies is in full force and effect.
Except as set forth in EXHIBIT 12.18(b) of this Agreement, there are no
outstanding claims made by BEA under any of these insurance policies whatsoever.
To the knowledge of the Sellers, no circumstance exist which might give rise to
such a claim.
All insurance policies of BEA are group policies which shall terminate on the
Closing Date.
12.19 LITIGATION AND PROCEEDINGS
12.19.1 With the exception of the litigation and proceedings set forth in
EXHIBIT 12.19 of this Agreement, there is no pending or to the
knowledge of the Sellers, threatened litigation, claims, suit,
proceeding or arbitration between BEA and a third party which involves
for BEA an individual risk greater than EUR 30,000, in particular,
without limitation, in respect of:
(i) any breach of any commercial contracts with customers of BEA or
any loss or damage caused by BEA to customers or third parties;
(ii) any infringement of customer's rights over software,
documentation or tools developed by BEA for the use of its
customers;
(iii) any BEA past or present employee or independent contractor.
12.19.2 There has been no judgement or order of any arbitrator or Governmental
Authority issued against, or any administrative decision made,
concerning BEA, or any of its properties or assets, which has not been
complied with or satisfied in all material respects.
12.19.3 There is no current pending, or to the knowledge of the Sellers,
threatened litigation, investigation, inquiries, audit, legal,
arbitration or administrative proceedings involving the transactions
contemplated by this Agreement or the Ancillary Agreements.
12.20 SUBSIDIES
The Sellers have not received any public grants, assistance or subsidies
whatsoever in respect of BEA's activities for an individual amount greater than
EUR100,000 since BEA's incorporation.
BEA has complied and continues to comply with all of the conditions or
undertakings to which public grants, assistance or subsidies are or have been
conditioned. BEA has not received any total or partial reimbursement request of
public grants, assistance or subsidies and there is no cause for any such
reimbursement request.
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12.21 BROKERAGE FEES
None of the negotiations relating to this Agreement and the transactions
contemplated herein may give rise to a claim against the Purchaser or BEA for
payment of any brokerage, commission, fee or any other similar payment except
for such agreement into which Purchaser may have entered.
12.22 HOLDINGS
12.22.1 BEA has not undertaken to subscribe for the capital of nor holds or has
held capital in any other entity whatsoever, except for the shares of
CIBA issued in consideration for the contribution of the PCB Business.
12.22.2 Except as set forth in EXHIBIT 12.22.2 of this Agreement, BEA has not
been nor is a partner (associe) or a manager (gerant) of any
unincorporated associations or incorporated companies, economic
interest groups or partnerships, or generally of any other entity in
which the partners may be jointly and severally liable or have
unlimited liability.
12.22.3 BEA has not given or taken any put or call options relating to the
shares of any other company.
12.23 TAX, SOCIAL SECURITY, CUSTOMS OBLIGATIONS
12.23.1 BEA has properly prepared and filed, within the prescribed period, all
Tax Returns required by the laws and regulations currently in force.
All such returns are complete and correct in all material respects. BEA
has paid within the period provided by the laws and regulations
currently in force, its taxes, custom duties, stamp duties, social
security contributions and charges and all other taxes, fees,
assessments or other charges of any kind similar to taxes, including,
as the case may be, late payment interest, penalties and additions (the
TAXES).
12.23.2 Except as set forth in EXHIBIT 12.23.2 of this Agreement, no claim for
assessment or collection of Taxes relating to BEA that is or may become
payable by BEA or chargeable as a Lien on its assets or properties, has
been made by any Governmental Authority.
12.23.3 The provisions for Taxes (including, without limitation, the
contributions for complementary retirement schemes and contingency
funds) which appear in the 1999 Financial Statements and which will
appear in the Closing Financial Statements are and will be sufficient
to cover payment of all Taxes due by BEA whether or not they are
disputed, which are outstanding as at the date of the 1999 Financial
Statements or the Closing Financial Statements, as the case may be, but
not yet paid by such date, or which may be due as a direct or indirect
effect of this Agreement. For the avoidance of doubt, all Taxes
relating to the period between January 1, 2000 and the Closing Date
shall be sufficiently provisioned in the Closing Financial Statements,
even if they are not outstanding at the Closing Date.
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12.23.4
(i) Except as set forth in EXHIBIT 12.23.4 of this Agreement, BEA is not or
may not be subject to income Tax in any country other than in the
country of its incorporation;
(ii) BEA is established in a country where value added tax is applicable
and is duly registered as an entity subject to such tax;
(iii) the amount, characterization (ordinary losses or depreciation losses)
and maturity of the loss carry forwards are correctly reflected in the
Tax Returns (form 2058-B) of BEA. They will be usable by BEA in the
ordinary course of business;
(iv) BEA has not entered into any transaction which could be disregarded or
recharacterized for Tax or social purposes on the grounds that it aimed
exclusively at the avoidance of Tax or social obligations;
(v) all profit sharing plans and similar benefit plans binding BEA such as,
regimes d'interessement et de participation des salaries, plans
d'epargne-entreprise, and plans d'options, d'achat ou de souscription
d'actions meet the conditions required to enjoy the social
contributions and salary related tax exemption;
(vi) BEA shall not incur any Tax burden as a result of the sale of the
Purchased Shares;
(vii) the assets of BEA are not subject to any Lien for Taxes and none will
arise as a result of the transaction contemplated by this Agreement;
(viii) BEA does not enjoy beneficial or specific treatment in France with
respect to Taxes which could be modified or terminated as a consequence
of this Agreement with the exception of the tax group regime provided
for by Article 223 A et. seq. of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Tax Code which
applies to BEA as member of the tax group constituted by Bull;
(ix) BEA does not act and/or has not acted within a period which is still
opened to tax audit under applicable statutes of limitation on the
Closing Date as an agent of any Person non resident in France for the
purposes of VAT or has been appointed as a VAT representative of any
Person for the purposes of VAT;
(x) the transfer price policies of BEA comply with the principles generally
required or accepted at national or international level;
(xi) BEA is not subject to any Tax verification or dispute or, to the
knowledge of the Sellers, to any Tax enquiry or investigation;
(xii) BEA has not granted a power of attorney which is currently in force
with respect to any matter relating to Taxes;
(xiii) BEA shall not incur any Tax burden as a result of transactions (if any)
which would not have been performed at arms length conditions.
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12.23.5 BEA (i) does not have Assets whose tax basis as defined by articles 54
septies, 38-7bis, 210A and 210B of the French Tax Code is different
from its book value and (ii) has not taken commitments to retain title
to the share interests of a Subsidiary during any period of time in
order to obtain the benefit of a Tax deferral.
12.23.6 The Purchaser and BEA shall have no liability whatsoever for the
payment of any amount under (i) any Tax sharing agreement (convention
d'integration fiscale) as a result of ceasing to be a member of any
currently existing tax group (integration fiscale) and/or (ii) as a
result of the previous restructuring as described in EXHIBIT 12.5.1 of
this Agreement, unless such liability has been recorded by way of a
sufficient provision under Article 12.23.3 above.
12.23.7 BEA has withheld and paid over in a timely manner all Taxes required to
have been withheld and paid over by it, and no withholding obligation
will arise on the part of the Purchaser as a result of the transactions
contemplated by this Agreement.
12.24 FINANCIAL STATEMENTS
(a) Attached hereto as EXHIBIT 1.8 is a complete copy of the 1999 Financial
Statements as at December 31, 1999.
(b) The 1999 Financial Statements have been prepared in accordance with the
Accounting Principles which have been consistently applied in the audited
financial statements of BEA for the previous financial year. The 1999
Financial Statements give a true and fair view of the financial situation
and the results of the Assembly Business in accordance with U.S. GAAP as at
December 31, 1999, for the financial period then ended.
(c) Reserves are accounted for in the 1999 Financial Statement in accordance
with the Accounting Principles. There are no liabilities of BEA of any kind
whatsoever, other than liabilities disclosed or provided for in the 1999
Financial Statements or in an Exhibit to this Agreement, and which,
individually or in the aggregate, would have or is reasonably likely to
have within 3 months following the Closing Date, a Material Adverse Effect.
(d) As a result of the transfer of Bull Industrial and Logistic Services (BILS)
and the PCB Business, there exists no residual liability of BEA pertaining
to BILS or the PCB Business.
12.25 INTERIM PERIOD
Since January 1, 2000 and until the date hereof, Bull declares that:
(i) BEA shall have been managed in accordance with reasonable management
practices and has conducted its business in the ordinary course consistent
with past practices;
(ii) there has been no Material Adverse Effect;
37
(iii) BEA has not:
(a) incurred any obligations or liabilities except in the ordinary
course of business on an arm's length basis and consistent with past
practices,
(b) sold, transferred or alienated any of its tangible or intangible
fixed assets or property in excess of EUR 500,000 in the aggregate,
other than in the ordinary course of business or in connection with
the Reorganization Plan, or created or assumed any Lien on any asset
of BEA other than in the ordinary course of business,
(c) suffered any damage, destruction (excluding scrapping of inventory
in the ordinary course) or loss (whether or not covered by
insurance) affecting any of its tangible or intangible assets or
property in excess of EUR 250,000 in the aggregate,
(d) altered or varied its accounting methods or practices,
(e) made or committed any other investment than those listed in EXHIBIT
12.25.(iii).(e) of this Agreement of an individual value exceeding
EUR 250,000 excluding VAT,
(f) merged with, entered into consolidation with, or acquired an
interest or a portion of the assets or business of any entity
whatsoever, except for the Reorganization Plan,
(g) failed to pay, without reason, to any creditor any amount in excess
of EUR 25,000 owed to such creditor when due, more than thirty (30)
days from the date payment was due,
(h) incurred or assumed any indebtedness for borrowed money or granted
to any party whatsoever any guarantee, endorsement, security or
collateral whatsoever or made any loan, advance or capital
contribution to any Person, except in the ordinary course of
business,
(i) undertaken a transaction resulting in a change of its by-laws,
except with respect to the Reorganization Plan,
(j) but for the Reorganization Plan, terminated, discontinued, closed or
disposed of any plant, facility or other business operation or
implemented any early retirement program for which BEA is obligated,
(k) increased compensation, bonus, or benefit payable to any of its
directors, officers, employees or managers other than with respect
to an increase rendered mandatory pursuant to applicable collective
bargaining agreement or the current negotiations on salaries as
described in EXHIBIT 12.17.2 of this Agreement, of the terms of an
employment agreement (provided that such increase is customary
company practice) or in the ordinary course of businesses consistent
with past practices; and
(l) implemented any social plan.
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(iv) except with respect to the previous reorganizations described in EXHIBIT
12.5.1 of this Agreement, no distribution of dividends or reserves of any
kind whatsoever has been made, voted or approved by BEA and BEA has not
proceeded with any redemption or repurchase of its own securities,
(v) the works in progress and the orders have been entered into by BEA under
then available normal commercial conditions and consistent with past
practices, and
(vi) The Sellers and the Sellers' Affiliates have continued to provide services,
consistent in all material respects with past practices, which have been
billed to BEA in a consistent manner with past practices.
12.26 UNFAVORABLE EVENTS OR CONDITIONS TO DATE
12.26.1 Other than the facts set out in this Agreement, or as set forth in
EXHIBIT 12.26.1 of this Agreement, the Sellers are not aware of any
other event or matter of whatever nature affecting BEA and which has or
which could have a Material Adverse Effect.
12.26.2 Except as set forth in EXHIBIT 12.26.2 of this Agreement, BEA has not
been informed in writing by its customers or suppliers of any possible
termination or reduction of its commercial relations with BEA other
than in the ordinary course of business, which could have a Material
Adverse Effect.
12.27 ENTIRETY OF DECLARATIONS
No specific Representations and Warranties shall have the effect of limiting in
any way whatsoever the scope of more general Representations and Warranties.
12.28 THE PURCHASER
The Purchaser irrevocably represents and warrants as follows.
12.28.1 The Purchaser is a corporation duly incorporated, and its
aforementioned share capital was duly issued and is fully paid up.
12.28.2 This Agreement constitutes the valid and binding agreement of the
Purchaser, enforceable against it in accordance with the terms hereof.
Neither the execution of this Agreement nor the performance by the
Purchaser of the transactions contemplated herein (i) will violate or
conflict with any of the provisions of the Purchaser's certificate of
incorporation or by-laws, or (ii) to the knowledge of the Purchaser,
will violate or constitute a default under, or be grounds for
termination of, any Material Contract, agreement, mortgage or other
instrument or any order, judgment or ruling of any Governmental
Authority to which the Purchaser is a party, except in each case for
any of the foregoing which would not individually or in the aggregate
have a Material Adverse Effect on the financial condition or business
of Purchaser taken as a whole.
12.28.3 There is no outstanding proceeding nor, to the knowledge of Purchaser,
proceeding about to be instituted against the Purchaser which may have
as a result to prevent or prohibit the purchase of the Purchased
Shares.
39
12.28.4 No Governmental Authorization, approval, procedure, notification or
filing is required in order for the Purchaser to carry out the purchase
of the Purchased Shares, the execution and performance of this
Agreement.
12.28.5 The Purchaser will have (i) on the Closing Date the funds necessary to
purchase the Purchased Shares and (ii) as the case may be, when due,
the funds to pay the Net Asset Adjustment. The terms and conditions of
the financing of the purchase of the Purchased Shares will not affect
the financial position of BEA after the Closing Date.
12.29 FINDERS' FEES
Except for ▇▇ ▇▇▇▇▇ Securities Corporation, whose fees will be paid by the
Purchaser, there is no investment banker, broker, finder or other intermediary
which has been retained by or is authorized to act on behalf of the Purchaser
who might be entitled to any fee or commission in connection with the
transactions contemplated hereby.
ARTICLE 13 INDEMNIFICATION BY THE SELLERS
13.1 INDEMNIFICATION
13.1.1 Except as otherwise provided in this Article 13, from and after the
Closing Date, the Sellers shall jointly and severally indemnify and hold
harmless the Purchaser or, at the Purchaser's option, BEA,
(collectively, the INDEMNIFIED PARTIES) from and against:
(i) any loss, damage, cost or reasonable out-of-pocket expense (including,
without limitation, reasonable attorneys' fees and disbursements, fines,
penalties, and court/arbitration costs related to third-party claims)
actually suffered or incurred by the Indemnified Parties (hereinafter
the LOSS) arising out of or resulting from any misrepresentation or
breach of any of the Representations and Warranties; or any breach of
any covenant of the Sellers contained herein, provided however that such
indemnity will not cover consequential damages; or
(ii) any decrease of assets or increase of liabilities compared with those
shown in the 1999 Financial Statements and which are not or
insufficiently accounted for in the 1999 Financial Statements (with
respect to such standards as are defined in the Accounting Principles)
resulting from a fact or circumstance which occurred prior to December
31, 1999 (hereinafter also the LOSS).
In order to be valid, any claim for indemnification hereunder (a CLAIM)
must be notified to the Sellers by the Purchaser by written claim notice
(CLAIM NOTICE):
-- no later than 30 June 2002 in respect of any matters other than
Taxes, environmental liabilities;
-- within thirty days after the expiration of the applicable statute of
limitations, if the Claim relates to Taxes;
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-- with respect to environmental liabilities incurred by BEA, within 3
years after the Closing Date.
In the event the Purchaser fails to notify the Sellers of a Claim within
the above mentioned periods, the Purchaser shall have no right under the
guarantee provided for in this Article 13 with respect to such Claim.
Such Claim Notice shall, to be valid, be sent to the Sellers promptly
(not later than 45 days - such period to start as of September 1 if the
event triggering the Claim Notice occurs during the month of August -
or, in respect of any proceedings which require a response within a
short period of time, within a shorter period sufficient to enable the
Sellers to answer thereto) upon the Purchaser (i) having been notified
with respect to Third Party Claims or (ii) becoming aware of the claimed
breach allegedly giving rise to indemnification hereunder.
The Claim Notice shall contain:
(i) the date the Purchaser has been notified or become aware of the event,
as the case may be;
(ii) a description of the Claim;
(iii) the identity of the Person having issued such Claim, and the estimated
amount of the damage incurred (if reasonably possible).
In the event the Purchaser fails to notify the Sellers within the time
frame set forth in the fourth paragraph above, the Sellers shall not be
liable towards the Purchaser as set out in Article 13 of this Agreement
as regards the Claim concerned and only and to the extent they were
prejudiced thereby.
13.1.2 Within thirty (30) days of receipt of the Claim Notice (such period to
start as from September 1, if the Claim Notice is received during the
month of August), the Sellers shall notify the Purchaser whether they
accept or reject the Claim or whether they propose to settle it. In the
event that the Sellers should fail to notify their position to the
Purchaser within such thirty-day period, or should the Sellers notify
their acceptance of the Claim or should the Purchaser accept the
proposed settlement, the Claim shall be payable in accordance with
Article 13.8 of this Agreement. Should the Sellers notify their
rejection of the Claim to the Purchaser or should the Purchaser reject
the proposed settlement, the Claim shall be referred to the arbitration
tribunal having jurisdiction over the matter in accordance with Article
25.2 of this Agreement and any amount for which the Sellers are found
definitively liable further to a Final Resolution shall be payable in
accordance with Article 13.8 of this Agreement.
13.1.3 The Purchaser shall, upon learning of any breach of a Representation or
Warranty, take all reasonable actions and cause BEA to take all
reasonable actions to mitigate damages.
To the extent that any breach of Representation or Warranty is capable
of remedy, the Purchaser shall afford the Sellers, at the Sellers' cost,
a reasonable opportunity to remedy such breach.
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13.1.4 The Sellers or their duly empowered counsels shall have reasonable
access to the books and documents of BEA relating to the Claim at the
premises of BEA during normal working hours or at any other place agreed
by the Parties. BEA's staff shall co-operate and lend its assistance to
the Sellers or their counsels.
13.2 DEDUCTIONS
13.2.1 In calculating the amount of the Loss, there shall be deducted (i) the
amount net of taxes possibly borne by BEA of any indemnification or
other recovery including without limitation insurance proceeds payable
to BEA from any third party with respect to such Loss, (ii) an amount
equal to the net present value of the tax benefit, if any, attributable
to such Loss which would be available to the Purchaser and/or BEA for
any taxable period prior to or after the Closing Date (after taking into
account the possible taxation of the indemnification payment to
Purchaser or BEA), and/or (iii) the reserves recorded in the Closing
Financial Statements in respect to such Loss, provided that any amount
mentioned in paragraphs (i), (ii) and (iii) shall not be taken into
account more than once.
13.2.2 In the event that the amount of any deduction pursuant to this Article
13.2 is determined after the payment by the Sellers of any amount
otherwise required pursuant to this Article 13 and if such deduction has
been actually received by the Purchaser or BEA, the Purchaser shall
repay the Sellers promptly after such determination any amount received
by the Purchaser that the Sellers would not have had to pay pursuant to
this Article 13 had such determination been made at or prior to the time
of such payment, less the Purchaser's or BEA's costs for the recovery of
such amount (the aforementioned costs being calculated after taking into
account any Tax liabilities).
13.3 LIMITATIONS
13.3.1 No Claim for indemnification may be made by the Purchaser under this
Article 13, and no payment in respect of any such Claim shall be due by
the Sellers, unless and only to the extent that after application of the
limitations set forth in this Article 13.3.1 below:
(i) the amount of Loss to which the Purchaser is entitled to receive
indemnification in respect of any single Claim exceeds EUR 5,000
(five thousand euros), it being understood that once this amount
has been reached, the Sellers' obligation to pay indemnification
shall cover the total amount of Loss subject to paragraph (ii)
below; and
(ii) the cumulative aggregate amount of all Losses in respect of which
the Sellers are obligated to pay indemnification exceeds the sum of
EUR 500,000 (five hundred thousand euros) in the aggregate (the
THRESHOLD AMOUNT), it being understood that once the Threshold
Amount has been reached, the Sellers' obligation to pay
indemnification shall cover the difference between (i) the total
amount of Losses and (ii) EUR 250,000 (two hundred and fifty
thousand euros).
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13.3.2 Except as set forth in Article 13.3.3 of this Agreement and
notwithstanding any other provisions of this Agreement, the maximum
amount of indemnification to be paid by the Sellers to the Indemnified
Parties (excluding amount owed on Article 12.5.2 of this Agreement)
shall not, in any case exceed, in the aggregate, USD 14.150.000).
13.3.3 Articles 13.3.1 and 13.3.2 of this Agreement shall not apply to payments
in respect of Claims made by the Purchaser under this Article 13, with
respect to the Representations and Warranties granted by the Sellers in
Article 12.5.2 of this Agreement. These payments shall be made for any
Loss incurred, and for the total amount of said Losses. Any Claim
relating to Article 12.5.2 of this Agreement shall not be taken into
account for the purpose of the Threshold Amounts set forth in Article
13.3.1 above or the maximum amount set forth in Article 13.3.2 of this
Agreement.
13.4 EXCLUSIONS
13.4.1 The Purchaser shall not be entitled to make a Claim for indemnification
for Losses against the Sellers in respect of (i) any tax audit or Claim
relating to BEA which merely modifies the tax period during which a
deductible charge or amortization may be taken, provided however that
this deductible charge effectively leads to a reduction of the amount of
tax payable for the period during which this deductible charge should
have been recorded or (ii) any VAT assessment (except if such VAT is not
recoverable), except for late payment interest and/or penalties borne by
BEA.
13.4.2 The Sellers shall not be liable for Losses asserted against, resulting
from, incurred by or imposed upon the Purchaser in respect of a breach
of a Representation or Warranty which would not have occurred but for
the passing of, or any change in, after the Closing Date, any law or
regulation or any increase in tax rates in effect on the Closing Date or
any imposition of any tax not in effect on the Closing Date, even if
such law or change has retroactive effect or requires actions at some
future date.
13.4.3 The Purchaser shall not be entitled to make a Claim for indemnification
for the amount of any Loss which have been taken into account (i) in the
determination of the amount of the Net Assets Adjustment or in the
amount to be paid under the provisions of Article 10 hereof, it being
understood that the Purchaser shall be entitled to make a Claim for any
amount exceeding the amount used in the Net Assets Adjustment and (ii)
in the amount to be paid under the provisions of Article 11 hereof.
13.5 THIRD PARTY CLAIMS
In the event that any legal proceedings shall be instituted or any Claim or
demand shall be asserted by any third party in respect of which the Indemnified
Parties may have a right of indemnification from the Sellers hereunder (a THIRD
PARTY CLAIM), the Purchaser shall promptly notify the Sellers thereof in the
time period provided in Article 13.1 of this Agreement.
Subject to the provisions of the paragraphs below, the Purchaser shall
reasonably and prudently run the defense, at the costs of the Sellers, against
any such Third Party Claim and shall involve the Sellers and their counsels in
the manner described below. The Purchaser will be free to take any decision
which it may consider appropriate for the defense of the best interests of the
Indemnified Parties and/or the Assembly Business, subject to the provisions set
forth in this Article 13.5 below.
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The Purchaser shall regularly and on a timely basis inform the Sellers and their
counsels of the status of the Third Party Claim and provide them with all
information or documentation relating to the claim and its aftermath, and shall
cause BEA to do the same.
The Purchaser shall allow and shall cause BEA to allow the Sellers and their
counsels to comment on the final drafts of the briefs and the arguments which,
as the case may be, may need to be put forward and in the negotiations which may
take place to reach an out-of-court settlement and the Sellers shall react to
the Purchaser or BEA as the case may be, on a timely manner to allow them to
properly conduct the defense or the negotiations.
The Purchaser undertakes and shall cause BEA not to compromise any Third Party
Claim or make an appeal concerning the defense of a Third Party Claim without
Bull's prior written consent, which consent shall be given promptly and shall
not be unreasonably withheld.
If Bull notifies the Purchaser that it shall not participate in the defense or
in the pursuit of the claim, the Purchaser shall reasonably and prudently defend
the action and pursue the claim on its own.
13.6 EXCEPTIONS
The limitations in favor of the Sellers set forth in this Article 13 (with the
exception of the provisions of Articles 13.1.4, 13.2, 13.4.1 and 13.4.3) shall
not apply to the specific Representations and Warranties set out in Articles
12.2.1, 12.2.2, 12.2.3, 12.2.4 [Purchased Shares], 12.5 [Recent Restructuring]
and 12.23.3 of this Agreement.
13.7 INDEMNIFICATION AS EXCLUSIVE REMEDY
The indemnification provided in this Article 13 (subject to the limitations set
forth herein) shall be the exclusive remedy of the Purchaser in respect of any
breach of representation, warranty or covenant of the Sellers herein.
13.8 PAYMENT
The indemnity provided in Article 13.1 of this Agreement shall be paid to the
Indemnified Parties within one month from the agreement between the Parties or,
as the case may be, from the Final Resolution. In the event that the payment is,
at the request of the Purchaser, made to the Purchaser, such payment will be
considered as a reduction in price.
13.9 SET-OFF
If any payment is due by the Purchaser to the Sellers pursuant to this
Agreement, the payment shall be made by way of reduction of sums due by the
Sellers to the Purchaser pursuant to this Agreement or pursuant to a Claim made
by the Purchaser for any breach of this Agreement (including, without
limitation, any Claim, as defined in Article 13.1.1 of this Agreement), to the
extent such Claim has been agreed by the Sellers or the Sellers have been found
definitively liable further to a Final Resolution.
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ARTICLE 14. COVENANTS OF THE PURCHASER
14.1 SALE OF THE PCB BUSINESS
The Purchaser acknowledges that Bull intends to search for a potential acquirer
for the PCB Business. The Purchaser shall not recommend other PCB suppliers to
the existing customers of the Assembly Business who are then using the PCB
Business as their supplier of printed circuit boards, on the Closing Date,
unless requested by the Assembly Business customer.
In any event, the Sellers will bear all consequences, costs and liabilities of
the sale or the liquidation of the PCB Business.
14.2 EMPLOYEES OF THE PCB BUSINESS
The Purchaser shall use its reasonable efforts to hire the employees of the PCB
Business instead of hiring third parties for the Assembly Business, whenever
possible and desirable to Purchaser. However the Purchaser shall be under no
obligation whatsoever to hire the employees of the PCB Business and such
employees have no rights as third party beneficiaries pursuant to this
Agreement. Nothing herein shall be deemed to preclude the Purchaser from hiring
any third party at its sole discretion for employment in the Assembly Business.
14.3 GUARANTEE
The Purchaser undertakes to replace the Sellers or the Sellers' Affiliates
involved in the guarantees listed in EXHIBIT 14.3 of this Agreement as from the
Closing Date and to give to the Sellers evidence of such replacement.
ARTICLE 15. POST-CLOSING COVENANTS OF THE SELLERS
15.1 NON-COMPETITION UNDERTAKING
For three (3) years following the Closing Date, the Sellers undertake and shall
cause their respective Affiliates to undertake not to:
(a) compete, directly or indirectly, with the Assembly Business, as carried out
by BEA before and at the Closing Date and which is described in EXHIBIT A.1
of this Agreement provided that Bull shall have the right to continue the
PCB Business and the systems assembly (including box build systems assembly
and the associated end to end value added services) for Bull's customers;
(b) contact, solicit or endeavor to solicit, approach or deal with, directly or
indirectly, any Person who or which shall have been at any time during the
preceding year of the Closing Date, a client or customer of or in the habit
of dealing or doing business with the Assembly Business for the purpose of
carrying out the Assembly Business, except for the purpose of continuing
the PCB Business and the systems assembly (including box build systems
assembly and the associated end to end value added services) for Bull's
customers.
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It is specified that Bull Electronics Inc. (BEI), a US Affiliate of the Sellers
carries out a business similar to the Assembly Business and that nothing in
Article 15.1. of this Agreement shall be construed as restricting BEI in any way
whatsoever to continue its business in the Americas.
For nine months following the Closing Date, the Sellers undertake and shall
cause their Affiliates to undertake, in France only, not to contact, solicit or
endeavor to entice away from the Assembly Business or hire any person who was
employed by the Assembly Business on the Closing Date or at any time within a
period of six months prior to that date, without the Purchaser's consent.
Notwithstanding anything to the contrary, Sellers shall be entitled (i) to
interview, offer for employment and employ as from the Closing Date, any of the
employees of the Assembly Business who are terminated by BEA, Purchaser or its
Affiliates and (ii) to employ but not solicit, after the first anniversary of
the Closing Date, any of the persons listed in EXHIBIT 15.1 of this Agreement
who have been granted by Bull the right to reintegrate the group Bull.
If any provision of this Article 15.1 shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Article 15.1, but
this Article 15.1 shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. It is the intention of
the Parties that if any of the restrictions or covenants contained herein is
held to cover a geographic area or to be for a length of time which is not
permitted by applicable law, or in any way construed to be too broad or to any
extent invalid, such provision shall not be construed to be null, void and of no
effect, but to the extent such provisions would be valid or enforceable under
applicable law, a court of competent jurisdiction shall construe and interpret
or reform such Article 15.1 to provide for a covenant having the maximum
enforceable geographic area, time period and other provisions as shall be valid
and enforceable under such applicable law.
15.2 TAX MATTERS
Purchaser and Sellers agree to furnish or cause to be furnished to each other,
upon request, as promptly as practicable, such information and assistance
relating to the Assembly Business as is reasonably necessary for the filing of
all Tax Returns, the making of any election related to Taxes, the preparation
for any audit by any governmental authority, and the prosecution or defense of
any claim, suit or proceeding relating to any Tax Return. Sellers and Purchaser
shall cooperate with each other in the conduct of any audit or other proceeding
related to Taxes involving the Assembly Business and each shall execute and
deliver such powers of attorney and other documents as are necessary to carry
out the intent of this paragraph. In addition, Purchaser and Sellers agree to
maintain such records related to Taxes and any related returns for a period of
seven (7) years from the Closing Date and each Party agrees to afford the other
reasonable access to such records during normal business hours.
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ARTICLE 16. COVENANTS OF THE PARTIES
During the sixty (60) day period following the Closing Date, the Parties agree
to:
(i) cooperate, execute and submit all other documents, deeds of assignment or
transfer, records, books and registers, and to carry out all other acts
that could be reasonably required in order to successfully consummate the
transactions contemplated under this Agreement and in particular the sale
of the Purchased Shares;
(ii) jointly inform the customers on the transfer of the Assembly Business.
Subject to applicable law or any listing agreement with any national
securities exchange, the Parties shall mutually agree on the format,
content, place and date of such joint notices.
The Sellers shall cause a notary to deliver promptly after the Closing Date to
the Purchaser the Real Estate Contribution Deed, an extract of the cadastre and
a mortgage certificate.
ARTICLE 17. AGENCY
The Sellers hereby irrevocably appoint and instruct Bull as their sole agent:
(a) to receive or pay, as the case may be, any amounts owed by or to the
Purchaser pursuant to any provisions of this Agreement, including in
particular Articles 3, 10, 11 and 13 thereof and the Sellers hereby
acknowledge that any payment made by the Purchaser to Bull, as agent of the
Sellers shall be effective in discharging the Purchaser's obligations to
pay such amount to the Sellers;
(b) to the extent permitted by law, for the purposes of initiating, receiving,
conducting and settling any claims and satisfying all judgments in respect
of all matters arising under this Agreement; and
(c) more generally to be the agent of the Sellers towards the Purchaser for the
execution of this Agreement.
Each Seller agrees that Bull is authorized to act on behalf of Sellers,
notwithstanding any dispute or disagreement among the Sellers, and that the
Purchaser shall be entitled to rely on any and all action taken by Bull under
this Agreement without any liability to, or obligation to inquire of, any
Seller. Notice to Bull, deliver in the manner chosen in this Agreement shall be
deemed to be notice to each Seller for purposes of this Agreement.
ARTICLE 18. SUBSTITUTION
The Purchaser shall have the right to have all or part of the Purchased Shares
acquired by any one of its Subsidiaries, whether French or overseas, direct or
indirect, existing or to be created, by giving notice to the Sellers in writing
at least three (3) Business Days prior to the Closing Date. In this case, such
Subsidiary will be fully substituted in place of the Purchaser in respect of all
of the Purchaser's rights and obligations hereunder. The Purchaser shall
however remain jointly and severally liable for the payment of the Purchase
Price and any other payment to be made by the substituted Subsidiary to the
Sellers hereunder.
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After the Closing Date, the undertakings in favor of the Purchaser under this
Agreement shall automatically be transferred to the benefit of any substituted
Subsidiary in accordance with the paragraph above and, as the case may be, to
the benefit of any company that shall merge with the Purchaser or to which the
Purchaser shall contribute all or substantially all of its assets or its
business.
ARTICLE 19. CORPORATE NAME
From the Closing Date and continuing until December 31, 2000, none of the
Purchaser or any Affiliate of the Purchaser or BEA shall have the right to use
the name "Bull" or "Bull Electronics" or any related logo or other ▇▇▇▇ as
trademark, trade name, corporate name or otherwise, provided that they shall
have the right until the expiry of such period to use such names and trademarks,
related logos, names or corporate names in accordance with the terms and under
the conditions set forth in the Trademark License Agreement, as attached in
EXHIBIT 19 of this Agreement.
ARTICLE 20. TAXES, COSTS AND EXPENSES
20.1 TAXES
The transfer taxes resulting from the transfer of the Purchased Shares to the
Purchaser shall be borne by the Purchaser.
20.2 OTHER COSTS AND EXPENSES
Except as otherwise provided in this Agreement, each Party shall bear its own
costs and expenses, including fees of legal, accounting and other counsel,
incurred in connection with the preparation, execution and implementation of
this Agreement and the transactions contemplated hereby, whether or not the
transactions contemplated herein are consummated, it being understood that the
costs and expenses relating to the recent restructuring described in EXHIBIT
12.5.1 of this Agreement including the Reorganization Plan shall be borne and
paid exclusively by Bull unless they are taken into account in the calculation
of the Net Assets Adjustment.
Any and all costs and expenses (including auditors fees and expenses) incurred
in relation to the preparation of any specific financial statements for the
purpose of compliance by the Purchaser with SEC requirements and not to exceed
USD 70,000 shall be borne and paid exclusively by the Purchaser.
Any and all costs and expenses (including auditors fees and expenses) incurred
in relation to the preparation of Closing Financial Statements shall be shared
equally between the Purchaser and Bull.
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ARTICLE 21. ASSIGNMENT
The Purchaser is not entitled to assign the benefit of any provision of this
Agreement (including but not limited to the right to indemnification as provided
for in Article 13 of this Agreement), without the prior written consent of Bull,
on behalf of the Sellers except where the assignment is made in favor of an
Affiliate of the Purchaser and provided that such Affiliate is fully substituted
in place of the Purchaser in respect of the Purchaser's rights and obligations
hereunder assigned to such Affiliate.
Sellers may not assign, delegate or otherwise transfer any of their rights or
obligations under this Agreement without the prior written consent of Purchaser.
The provisions of this Agreement shall be binding upon and incur to the benefit
of the Parties hereto and their respective successors and permitted assignees.
ARTICLE 22. CONFIDENTIALITY, PUBLIC ANNOUNCEMENT
22.1 Each Party shall keep confidential and shall refrain from communicating,
using or disclosing to others, and shall use its best efforts to prevent
any of its employees, former employees, agents, Affiliates and
representatives from using or disclosing without the prior written consent
of the other Parties (unless in accordance with the provisions governing
public announcements set forth in Article 22.2 below) any information or
data, in whatever form or on whatever support received, which pertains to
this Agreement, any negotiation relating thereto, any of the transactions
contemplated thereby, BEA or the business of the other Parties or their
Affiliates.
Nothing, in this Article 22.1, shall apply to information or data (i)
which such Party can show was known to the public through no fault, act or
omission of its own, or (ii) the disclosure of which is required under
applicable securities or other statutory or regulatory mandatory rules or
by court, or (iii) which it can show was already in its possession and
free of any confidentiality obligation prior to receipt from the other
Parties hereunder.
This Article 22.1 shall survive any termination of this Agreement for a
period of two years from the date of such termination. If this Agreement
is terminated, each Party will, and will cause their employees, former
employees, agents, Affiliates and representatives, to destroy, or deliver
to the other Party, upon request, all documents and other materials, and
all copies thereof, obtained by them in connection with this Agreement.
22.2 Except as may be required by applicable law or any listing agreement with
any national securities exchange, no publicity, public announcement, press
release or disclosure regarding this Agreement or the transactions
specifically contemplated herein shall be made without the prior written
consent of the Purchaser and the Sellers on the time, form and content of
such public announcement, release or disclosure. Each Party agrees not to
unreasonably withhold its consent.
ARTICLE 23. NOTICES
Any notice, request, demand or other communication given with reference of this
Agreement shall be delivered by hand, by telecopy with mechanical proof of
sending (with a copy mailed the same day or the next Business Day by registered
mail, return receipt requested), or by certified or registered mail, postage
prepaid, return receipt requested, and shall be deemed received (i) if delivery
by hand, when so delivered; (ii) if telecopied (with mailing aforesaid
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of a copy thereof) on the next Business Day following the day the telecopy is
sent; or (iii) if mailed (without having been telecopied) by registered mail as
aforesaid, seven Business Days after mailing.
(a) If to the Purchaser, to:
ACT MANUFACTURING, INC.
▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
Attention of: President
with a copy to: ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Telecopy no: (▇▇▇) ▇▇▇-▇▇▇▇
Attention of: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(b) If to the Sellers, to:
BULL
▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy no: ▇▇ (▇) ▇▇ ▇▇ ▇▇ ▇▇
Attention of: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
Vice President
Mergers and Acquisitions
Equity Management
BULL S.A.
▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy no: ▇▇ (▇) ▇▇ ▇▇ ▇▇ ▇▇ 74
Attention of: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
with a copy to: Stibbe Simont ▇▇▇▇▇▇▇ Duhot & ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇ ▇'▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Attention of: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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ARTICLE 24. MISCELLANEOUS
24.1 AMENDMENT
No terms of this Agreement may be altered, modified, amended, supplemented or
terminated except by an instrument in writing duly signed by the Parties.
24.2 AGREEMENT TO PREVAIL
The provisions of this Agreement shall prevail over and apply notwithstanding
any contrary provision as may be contained in the agreements which will be
entered into to complete the transactions contemplated herein, and in particular
in the Ancillary Agreements.
24.3 PREAMBLE AND EXHIBITS
The Preamble and the Exhibits to this Agreement form an integral part hereof.
24.4 SEVERABILITY
If any provision herein, or the application thereof to any circumstance of this
Agreement, is held to be unenforceable, invalid or illegal by any court,
arbitration tribunal, government agency or regulatory body of competent
jurisdiction, such provision shall be deemed deleted from this Agreement or not
applicable to such circumstance, as the case may be, and the enforceability,
validity and legality of the other provisions of this Agreement shall not be
affected or impaired thereby and the Parties shall negotiate in good faith to
agree on replacement terms that shall be (i) enforceable, valid and legal and
(ii) consistent with the initial intent of the Parties.
24.5 SINGLE AGREEMENT
This Agreement (including the Exhibits hereto) and the Ancillary Agreements
expresses the entire agreement and understanding of the Parties hereto with
respect to the matters set forth herein and cancels and supersedes all prior
agreements, negotiations, drafts, documents and understandings among the Parties
hereto. Neither this Agreement nor any provision hereof is intended to confer
upon any Person other than the Parties hereto any rights or remedies hereunder.
ARTICLE 25. GOVERNING LAW - COMPETENT JURISDICTION
25.1 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with French law.
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25.2 JURISDICTION
Any dispute, disagreement or claim arising from this Agreement, except as
otherwise provided pursuant to Article 10 of this Agreement, including any
question relating to its existence, validity or termination will be settled by
arbitration in accordance with the ICC Rules in force at the time of the
arbitration, such Rules being deemed to be incorporated into this Article 25.2.
The arbitration tribunal shall be made up of three arbitrators (who will be
fluent both in French and in English), one of which shall be nominated jointly
by the Sellers, one by the Purchaser and the third by the two arbitrators
nominated by the Parties. The place of arbitration shall be Paris. Arbitration
shall be carried out in the English language, it being specified that any
document relating to this Agreement which are in the French language shall be
used in French in the course of the arbitration proceeding.
Made on the date specified at the beginning, in three (3) originals,
/s/ ▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------- ----------------------------
ACT MANUFACTURING, INC. BULL S.A.
By: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇ By: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
BULL
By: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇
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