Exhibit 10.1
EXECUTION
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made as of September 18,
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2002, by and between FUKUDA (Luxembourg) Sar.l., a company incorporated in
Luxembourg ("Buyer"), and Measurement Specialties, Inc., a New Jersey
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corporation ("Seller").
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RECITALS
WHEREAS, Seller desires to sell, and Buyer desires to purchase, all of the
issued and outstanding shares (the "Shares") of capital stock of Terraillon
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Holdings Limited, a company registered in Ireland ("Terraillon"), for the
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consideration and on the terms set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, and intending to be legally bound, the parties to this
Agreement hereby agree as follows:
ARTICLE I DEFINITIONS/INTERPRETATION
1.1. DEFINITIONS.
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this ARTICLE I:
"Acquired Companies" - Terraillon and its Subsidiaries, collectively.
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"Accounts Receivable" - as defined in Section 3.7.
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"Affiliate" - with respect to any Person, (i) each Person that controls, is
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controlled by or is under common control with any such Person or any Affiliate
of such Person, (ii) each of such Person's officers, directors, joint venturers,
members and partners, and (iii) such Person's spouse, children, siblings and
parents. For purposes of this definition, "control" of a Person shall mean the
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possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
interests, by contract or otherwise.
"Applicable Contract" - any Contract (a) under which any Acquired Company
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has or may acquire any rights, (b) under which any Acquired Company has or may
become subject to any obligation or liability, or (c) by which any Acquired
Company or any of the assets owned or used by it is or may become bound.
"Assumed Shareholder's Equity" - as defined in Section 2.6.
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"Balance Sheet" - as defined in Section 3.4.
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"Buyer" - as defined in the first paragraph of this Agreement.
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"Buyer Indemnified Parties" - as defined in Section 10.2.
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"Closing" - as defined in Section 2.3.
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"Closing Date" - as defined in Section 2.3.
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"Closing Date Purchase Price" - as defined in Section 2.2.
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"Consent" - any approval, consent, ratification, waiver, or other
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authorization (including any Governmental Authorization).
"Contemplated Transactions" - all of the transactions contemplated by this
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Agreement, including:
(a) the sale of the Shares by Seller to Buyer;
(b) the execution, delivery, and performance of the Escrow Agreement;
(c) the performance by Buyer and Seller of their respective covenants
and obligations under this Agreement; and
(d) Buyer's acquisition and ownership of the Shares and exercise of
control over the Acquired Companies.
"Contract" - any agreement, contract, obligation, promise, or undertaking
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(whether written or oral and whether express or implied) that is legally
binding.
"Copyrights" - as defined in Section 3.21.
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"Credit Facilities" - the Acquired Companies' revolving credit facilities
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with BNP Paribas, Netexis and Credit Mutuel.
"Damages" - as defined in Section 10.2.
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"Deferred Purchase Price" - as defined in Section 2.2.
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"Domain Names" - as defined in Section 3.21.
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"Dormant Companies" - any Acquired Companies that have ceased operations,
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but have not been liquidated or dissolved in accordance applicable laws.
"Employee Benefit Plan" - as defined in Section 3.12.
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"Encumbrance"- any charge, claim, community property interest, condition,
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equitable interest, lien, option, pledge, security interest, right of first
refusal, or restriction of any kind, including any restriction on use, voting,
transfer, receipt of income, or exercise of any other attribute of ownership.
"Environment" - soil, land surface or subsurface strata, surface waters
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(including navigable waters, ocean waters, streams, ponds, drainage basins, and
wetlands), groundwaters, drinking water supply, stream sediments, ambient air
(including indoor air), plant and animal life, and any other environmental
medium or natural resource.
"Environmental Law" - means any Legal Requirement that requires or relates
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to the protection of natural resources, the Environment, the health and safety
of the public, the regulation of Hazardous Substances, or pollution of any type
whatsoever and any other Legal Requirement currently in existence, which govern:
(i) the existence, cleanup and/or remedy of contamination on
property;
(ii) the emission or discharge of Hazardous Substances into the
Environment;
(iii) the Release, use, generation, transport, treatment, storage,
disposal, removal or recovery or management of Hazardous Substances, including
building materials; or
(iv) the level of Hazardous Substances in any workplace.
"Escrow Agent" - HSBC Bank USA, New York, NY.
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"Escrow Agreement" - the Escrow Agreement by and among Buyer, Seller and
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the Escrow Agent in substantially the form attached hereto as Exhibit A.
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"Escrow Date" - as defined in Section 2.2.
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"Financial Statements" - the financial statements referred to in Section
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3.4(a), including the notes thereto.
"Final Shareholder's Equity" - as defined in Section 2.6.
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"Governmental Authorization" - any approval, consent, license, permit,
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waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"Governmental Body" - any:
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(a) nation, state, county, city, town, village, district, or other
jurisdiction of any nature;
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(b) federal, state, local, municipal, foreign, or other government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental agency, branch, department, official, or entity and
any court or other tribunal);
(d) multi-national organization or body; or
(e) body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority or
power of any nature.
"Hazardous Substances" - means: (a) any toxic, hazardous or otherwise
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dangerous material, substance, waste or pollutant, including petroleum products,
flammable substances, explosives, radioactive materials, asbestos, asbestos
coating and asbestos containing materials, polychlorinated biphenyls, toxic
wastes or substances or any other wastes, materials or pollutants defined or
regulated by Environmental Laws; and (b) any other chemical, material or
substances, exposure to which is prohibited, limited or regulated by any
Governmental Body.
"IMETE Approval" - as defined in Section 7.5.
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"Indemnified Party" - as defined in Section 10.1.
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"Indemnifying Party" - as defined in Section 10.1.
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"Intellectual Property Assets" -as defined in Section 3.21.
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"Interim Balance Sheet"- as defined in Section 3.4.
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"Legal Requirement" - any federal, state, local, municipal, foreign,
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international, multinational, or other administrative order, constitution, law,
ordinance, principle of common law, regulation, statute, or treaty.
"Marks" - as defined in Section 3.21.
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"Material Adverse Effect" - a material adverse effect on the business,
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financial condition or results of operations of the Acquired Companies, taken as
a whole.
"Mergers Act" the Irish Mergers, Take-overs and Monopolies (Control) Act,
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1978.
"Order" - any award, decision, injunction, judgment, order, ruling,
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subpoena, or verdict entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"Organizational Documents" - (a) the articles or certificate of
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incorporation and the bylaws of a corporation; (b) the partnership agreement and
any statement of partnership of a general partnership; (c) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership; (d) any charter or similar document adopted or filed in
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connection with the creation, formation, or organization of a Person; and (e)
any amendment to any of the foregoing.
"Patents" - as defined in Section 3.21.
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"Person" - any individual, corporation (including any non-profit
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corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Body.
"Pledge Release" - as defined in Section 2.4(a)(vii).
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"Proceeding" - any action, arbitration, audit, hearing, investigation,
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litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"Purchase Price" - as defined in Section 2.2.
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"Qualified Persons" - any current employee of Seller or any of the Acquired
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Companies that has been a member of the Board of Directors of any Acquired
Company or any person that has served as chief executive officer (or the local
equivalent) at any Acquired Company.
"Real Property" - as defined in Section 3.18.
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"Release" - any spilling, leaking, emitting, discharging, depositing,
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escaping, leaching, dumping, or other releasing into the Environment, whether
intentional or unintentional.
"Representative" - with respect to a particular Person, any director,
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officer, employee, agent, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial advisors.
"Schedules" - the schedules delivered by Seller to Buyer concurrently with
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the execution and delivery of this Agreement.
"Schedule of Individual Accounts" - as defined Section 3.4(c).
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"Securities Act" - the Securities Act of 1933.
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"Seller" - as defined in the first paragraph of this Agreement.
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"Seller Indemnified Parties" - as defined in Section 10.2.
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"Seller's Estimate of Shareholder's Equity" - as defined in Section 2.6.
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"Service Providers" - as defined in Section 3.12.
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"Shares" - as defined in the Recitals of this Agreement.
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"Subsidiary" - with respect to any Person (the "Owner"), any corporation or
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other Person of which securities or other interests having the power to elect a
majority of that corporation's or other Person's board of directors or similar
governing body, or otherwise having the power to direct the business and
policies of that corporation or other Person (other than securities or other
interests having such power only upon the happening of a contingency that has
not occurred) are held by the Owner or one or more of its Subsidiaries; when
used without reference to a particular Person, "Subsidiary" means a Subsidiary
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of Terraillon.
"Tax" - any tax (including any income tax, capital gains tax, value-added
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tax, sales tax, property tax, gift tax, or estate tax), levy, assessment,
tariff, duty (including any customs duty), deficiency, or other fee, and any
related charge or amount (including any fine, penalty, interest, or addition to
tax), imposed, assessed, or collected by or under the authority of any
Governmental Body or payable pursuant to any tax-sharing agreement or any other
Contract relating to the sharing or payment of any such tax, levy, assessment,
tariff, duty, deficiency, or fee.
"Tax Return" - any return (including any information return), report,
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statement, schedule, notice, form, or other document or information filed with
or submitted to, or required to be filed with or submitted to, any Governmental
Body in connection with the determination, assessment, collection, or payment of
any Tax or in connection with the administration, implementation, or enforcement
of or compliance with any Legal Requirement relating to any Tax.
"Terraillon" - as defined in the Recitals of this Agreement.
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"Threatened"- a claim, Proceeding, dispute, action, or other matter will be
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deemed to have been "Threatened" if any written demand or statement has been
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made or any written notice has been given.
"Trade Secrets" - as defined in Section 3.21.
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1.2. CONSTRUCTION AND INTERPRETATION.
(a) The Parties have participated jointly in the negotiation and
drafting of this Agreement. If an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement.
(b) Each definition in this Agreement includes the singular and the
plural, and references to any gender include the other genders where
appropriate.
(c) Any reference to any federal, state, local or foreign statute or
law shall be deemed to also to refer to all rules and regulations promulgated
under such statute or law, unless the context requires otherwise. References to
any statute or regulation mean such statute or regulation as amended at the time
and include any successor legislation or regulation.
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(d) The word "including" means "including but not limited to".
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(e) The word "or" is not exclusive.
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(f) The headings to the Articles and Sections are for convenience of
reference and shall not affect the meaning or interpretation of this Agreement.
References to Articles, Sections, Exhibits and Schedules mean the Articles,
Sections, Exhibits and Schedules of this Agreement (unless otherwise indicated).
The Exhibits and Schedules are incorporated by reference into and shall be
deemed a part of this Agreement.
(g) In computing any time period provided for in this Agreement, the
first day of the time period shall not be counted but the last day of the time
period shall be counted. Any action required to be taken on a particular day
must be taken before 5:00 PM U.S. Eastern time, on that day.
(h) Insofar as possible, each provision of this Agreement shall be
interpreted so as to render it valid and enforceable under applicable law and
severable from the remainder of this Agreement. A finding that any provision is
invalid or unenforceable in any jurisdiction shall not affect the validity or
enforceability of any other provision or the validity or enforceability of such
provision under the laws of any other jurisdiction.
ARTICLE II SALE AND TRANSFER OF SHARES; CLOSING
2.1. SHARES.
Subject to the terms and conditions of this Agreement, at the Closing,
Seller will sell and transfer the Shares to Buyer, and Buyer will purchase the
Shares from Seller.
2.2. PURCHASE PRICE.
The purchase price (the "Purchase Price") for the Shares will be
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US$22,819,345, subject to adjustment as provided in this ARTICLE II, payable as
follows: (i) US$20,537,410 (the "Closing Date Purchase Price"), subject to
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adjustment pursuant to Section 2.5, shall be delivered to the Seller on the
Closing Date by wire transfer of immediately available funds, and (ii) ten (10%)
percent of the Purchase Price, as adjusted to reflect any decrease in the
Closing Date Purchase Price pursuant to Section 2.5 (the "Deferred Purchase
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Price"), shall be delivered to the Escrow Agent on the Closing Date by wire
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transfer of immediately available funds. The Deferred Purchase Price subject to
adjustment pursuant to Section 2.6 and Buyer's right of set-off as provided in
Section 10.4 shall be delivered to Seller in accordance with the terms of the
Escrow Agreement on the date that is 127 days after the Closing Date (the
"Escrow Date").
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2.3 CLOSING.
The purchase and sale (the "Closing") provided for in this Agreement will
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take place at the offices of Seller's counsel at 10:00 a.m. U.S. Eastern time on
September 20, 2002 or at such other place and time as the parties may mutually
agree (the "Closing Date").
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2.4. CLOSING OBLIGATIONS.
At the Closing:
(a) Seller will deliver to Buyer:
(i) certificates representing the Shares, duly endorsed (or
accompanied by duly executed stock powers) for transfer to Buyer;
(ii) a certificate executed by Seller representing and warranting
to Buyer that each of Seller's representations and warranties in this Agreement
was accurate in all material respects as of the date of this Agreement and is
accurate in all material respects as of the Closing Date as if made on the
Closing Date (giving full effect to any supplements to the Schedules that were
delivered by Seller to Buyer prior to the Closing Date in accordance with
Section 5.5);
(iii) the resignations of all the members of the Board of
Directors of the Acquired Companies (other than any directors who are currently
employees of Terraillon);
(iv) the stock books, stock ledgers, minute books and other
corporate records of the Acquired Companies;
(v) certified resolutions of the Board of Directors of Seller,
that will be in full force and effect at the time of delivery, authorizing the
execution, delivery and performance of this Agreement;
(vi) the Escrow Agreement duly executed by Seller;
(vii) documents certifying the release of the pledge of the
Shares to the lenders of Seller (the "Pledge Release");
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(viii) documentation confirming the IMETE approval;
(ix) deed of waiver regarding the cancellation of management fees
between Seller and the Acquired Companies; and
(x) appropriate instruments to effect the transfer of the Shares
to Buyer.
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(b) Buyer will deliver to Seller:
(i) the Closing Date Purchase Price;
(ii) a certificate executed by Buyer representing and warranting
to Seller that each of Buyer's representations and warranties in this Agreement
was accurate in all material respects as of the date of this Agreement and is
accurate in all material respects as of the Closing Date as if made on the
Closing Date;
(iii) certified resolutions of the Board of Directors of Buyer,
that will be in full force and effect at the time of delivery, authorizing the
execution, delivery and performance of this Agreement; and
(iv) the Escrow Agreement duly executed by Buyer.
(c) Buyer will deliver to the Escrow Agent the Deferred Purchase
Price.
2.5. CLOSING DATE ADJUSTMENTS.
The Closing Date Purchase Price shall be subject to the following
adjustments:
(a) If the Closing shall occur on or before 5:00 PM U.S. Eastern time
on September 20, 2002 (which date shall be extended if a failure to close on or
before September 20, 2002 is due solely to Seller's failure to obtain the IMETE
Approval or Pledge Release), the Closing Date Purchase Price shall be reduced by
US$500,000; and
(b) Subject to Section 5.2(c) hereof, if the aggregate amount
outstanding under the Credit Facilities on the Closing Date is greater than Euro
5,000,000, the Closing Date Purchase Price shall be reduced by the amount of
such difference (based on the conversion rate from Euros to US dollars on the
Closing Date).
2.6. DEFERRED PURCHASE PRICE ADJUSTMENT.
The Deferred Purchase Price shall be subject to the following
adjustment:
(a) Seller has delivered to Buyer an internally prepared balance
sheet setting forth the consolidated shareholder's equity of Terraillon as of
the July 31, 2002 (the "Seller's Estimate of Shareholder's Equity").
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(b) Buyer shall have the right to review Seller's Estimate of
Shareholder's Equity for a period of fifty-two (52) days after the Closing Date.
In the event that Buyer does not object in writing to Seller's Estimate of
Shareholder's Equity prior to the expiration of such fifty-two (52) day period,
then Seller's Estimate of Shareholder's Equity shall become final and such
amount (the "Final Shareholder's Equity") shall be binding upon the parties.
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If, however, Buyer does object to Seller's Estimate of Shareholder's Equity
prior to the expiration of such fifty-two (52) day period, then the parties
shall comply with the procedures of Section 2.6(c) to
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determine the Final Shareholder's Equity. Any notice from Buyer of its objection
to Seller's Estimate of Shareholder's Equity shall be accompanied by a
description of the reasons for Buyer's objections.
(c) Upon Seller's receipt of Buyer's notice of objection under
Section 2.6(b), Buyer and Seller and their respective accountants shall
cooperate in good faith to resolve such dispute as promptly as possible. If
Buyer and Seller and their respective accountants are unable to resolve any such
dispute within ten (10) days after the Buyer's delivery of such notice, the
dispute shall be resolved by a jointly selected nationally recognized accounting
firm retained to resolve the dispute. This firm shall make its determination as
promptly as practicable (but, in no event later than thirty (30) days after
retention), and its determination shall become the Final Shareholder's Equity
and shall be binding on the parties. Buyer and Seller shall each bear the cost
of their own accountants and shall each bear one-half of the cost of the
accounting firm retained to resolve the dispute.
(d) If the Final Shareholder's Equity is less than Euro 4,000,000
(the "Assumed Shareholder's Equity"), the Deferred Purchase Price shall be
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decreased (based on the conversion rate from Euros to U.S. dollars on the Escrow
Date) by an amount equal to the difference between the Assumed Shareholder's
Equity and the Final Shareholder's Equity.
(e) In addition, if the actual amount of the aggregate indebtedness
outstanding under the Credit Facilities as of the Closing Date is different than
the amount used to calculate the purchase price adjustment specified in Section
2.5(b), the Deferred Purchase Price shall be further adjusted by an amount
equal to the difference between (x) the adjustment made pursuant to Section
2.5(b) on the Closing Date (if any) and (y) the adjustment that would have been
made on the Closing Date pursuant to Section 2.5(b) based upon the actual amount
of such indebtedness on the Closing Date. Any adjustment made pursuant to this
Section 2.6(e) shall be made in the time periods, and pursuant to the
procedures, specified in Sections 2.6(b) and 2.6(c).
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1. ORGANIZATION AND GOOD STANDING.
(a) Schedule 3.1(a) contains a list for each Acquired Company of its
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name and, for each Acquired Company other than the Dormant Companies, its
jurisdiction of incorporation, other jurisdictions in which it is qualified to
do business, and its capitalization. Except for the Dormant Companies, each
Acquired Company is a corporation duly organized, validly existing, and, except
as set forth on Schedule 3.1(a), in good standing under the laws of its
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jurisdiction of incorporation, with full corporate power and authority to
conduct its business as it is now being conducted, to own or use the properties
and assets that it purports to own or use, and to perform all its obligations
under Applicable Contracts. Except for the Dormant Companies, each Acquired
Company is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each state or other jurisdiction in which either the
ownership or use of
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the properties owned or used by it, or the nature of the activities conducted by
it, requires such qualification, except where failure so to qualify would not
result in a Material Adverse Effect.
(b) Seller has furnished copies of the Organizational Documents of
each Acquired Company (other than the Dormant Companies), as currently in
effect, for inspection by Buyer.
(c) Schedule 3.1(c) contains a list of the names of each of the
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Dormant Companies and the approximate date that each Dormant Company ceased
operations.
(d) Except as set forth on Schedule 3.1(a) and except for the 47%
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ownership interest in Siltec Instruments Limited, the Acquired Companies do not
have an ownership interest in any company.
3.2. AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Seller, enforceable against Seller in accordance with its terms.
Upon the execution and delivery by Seller and the other parties thereto of the
Escrow Agreement, the Escrow Agreement will constitute the legal, valid, and
binding obligation of Seller, enforceable against Seller in accordance with its
terms. Seller has the corporate power and authority to execute and deliver this
Agreement and the Escrow Agreement and to perform its obligations under this
Agreement and the Escrow Agreement.
(b) Except as set forth on Schedule 3.2, neither the execution and
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delivery of this Agreement nor the consummation or performance of any of the
Contemplated Transactions will, directly or indirectly (with or without notice
or lapse of time):
(i) contravene, conflict with, or result in a violation of any
provision of the Organizational Documents of the Acquired Companies;
(ii) contravene, conflict with, or result in a violation of, or
give any Governmental Body or other Person the right to challenge any of the
Contemplated Transactions or to exercise any remedy or obtain any relief under,
any Legal Requirement or any Order to which any Acquired Company or Seller, or
any of the assets owned or used by any Acquired Company, may be subject;
(iii) contravene, conflict with, or result in a violation or
breach of any provision of, or give any Person the right to declare a default or
exercise any remedy under, or to accelerate the maturity or performance of, or
to cancel, terminate, or modify, any material Applicable Contract; or
(iv) result in the imposition or creation of any Encumbrance upon
or with respect to any of the assets owned or used by any Acquired Company.
Except as set forth in Schedule 3.2, neither Seller nor any Acquired Company is
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or will be required to give any
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notice to or obtain any Consent from any Person in connection with the execution
and delivery of this Agreement or the consummation or performance of any of the
Contemplated Transactions.
3.3. CAPITALIZATION.
The capitalization of each of the Acquired Companies (other than the
Dormant Companies) is set forth on Schedule 3.1. All of such issued and
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outstanding shares have been validly issued and are fully paid and were not
issued in violation of any pre-emptive rights. There are no options, warrants,
calls, subscriptions, conversion or other rights, agreements or commitments
obligating any Acquired Company to issue any additional shares or any other
securities convertible into, exchangeable for or evidencing the right to
subscribe for any shares of any Acquired Company. Upon Closing, all outstanding
shares of the Acquired Companies will be free and clear of all Encumbrances.
3.4. FINANCIAL STATEMENTS.
(a) Attached as Schedule 3.4(a)(i) and Schedule 3.4(a)(ii),
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respectively, are (i) audited consolidated financial statements of Terraillon as
at December 31 in each of the years 1999 and 2000, including audited
consolidated balance sheets, statements of income, changes in shareholders'
equity and cash flow, and notes to the accounts, for each of the fiscal years
then ended, together with the report thereon of Deloitte and Touche, chartered
accountants, and (ii) audited consolidated financial statements of Terraillon as
at March 31, 2002, including audited consolidated balance sheet (the "Balance
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Sheet"), statements of income, changes in shareholders' equity and cash flow,
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and notes to the accounts, for the fifteen months then ended, together with the
report thereon of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, independent certified public accountants.
Attached as Schedule 3.4(a)(iii) are unaudited interim consolidated financial
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statements of Terraillon as at July 31, 2002 (the "Interim Balance Sheet")
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including consolidated balance sheets, statements of income, changes in
shareholders' equity and cash flow, and notes to the accounts, for the four
months then ended.
(b) Attached as Schedule 3.4(b) are individual audited financial
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statements of each of the following consolidated companies: Terraillon;
Terraillon S.A.; Gewako AG; ▇▇▇▇▇▇ UK Limited; ▇▇▇▇▇▇ Industries Limited; and
Terraillon Corporation, as at December 31 in each of the years 1999 and 2000,
and as at March 31, 2002 (except for Gewako AG which is as at December 31, 2001
and Terraillon for which financial statements as of March 31, 2002 are not
provided), including balance sheets, statements of income, changes in
shareholders' equity and cash flow, and notes to the accounts, for each of the
periods then ended, in each case together with the report thereon of the
independent auditor of such company.
(c) Attached as Schedule 3.4(c)(i) is a schedule setting forth
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the individual unaudited interim financial statements of each of the
consolidated companies listed in subsection (b) above as at July 31, 2002 (the
"Schedule of Individual Accounts"). Seller's Estimate of Shareholders' Equity is
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attached as Schedule 3.4(c)(ii). Each of the Schedule of Individual Accounts and
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Seller's Estimate of Shareholders' Equity has been prepared consistent with past
practice and in accordance with generally accepted accounting principles in the
applicable jurisdiction of organization.
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(d) Each of the financial statements attached hereto pursuant to
Section 3.4(a) and 3.4(b) has been prepared in accordance with generally
accepted accounting principles in the applicable jurisdiction of organization
and gives a true and fair view of the state of affairs, financial situation and
assets and liabilities of each such company for the period concerned.
3.5. TITLE TO PROPERTIES; ENCUMBRANCES.
Schedule 3.5 contains an accurate list of all real property, leaseholds, or
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other interests therein owned by any Acquired Company. The Acquired Companies
own (with good and marketable title in the case of real property) all the
properties and assets (whether real, personal, or mixed and whether tangible or
intangible) that they purport to own, including all of the properties and assets
reflected in the Balance Sheet and the Interim Balance Sheet (except for
personal property sold since the date of the Balance Sheet and the Interim
Balance Sheet, as the case may be, in the ordinary course of business), and all
of the properties and assets purchased or otherwise acquired by the Acquired
Companies since the date of the Balance Sheet (except for personal property
acquired and sold since the date of the Balance Sheet in the ordinary course of
business). All material properties and assets reflected in the Balance Sheet
and the Interim Balance Sheet are free and clear of all Encumbrances, except as
disclosed in Schedule 3.5. The Acquired Companies hold valid and binding lease
------------
agreements for all property which is used in and material to the operation of
the Acquired Companies and which is not owned by the Acquired Companies.
3.6. CONDITION AND SUFFICIENCY OF ASSETS.
The buildings, plants, structures, and equipment of the Acquired Companies
are in good operating condition and repair and are adequate for the uses to
which they are being put, and none of such buildings, plants, structures, or
equipment is in need of maintenance or repairs except for ordinary, routine
maintenance and repairs that are not material in nature or cost. The building,
plants, structures, and equipment of the Acquired Companies are sufficient for
the continued conduct of the Acquired Companies' businesses after the Closing in
substantially the same manner as conducted prior to the Closing.
3.7. ACCOUNTS RECEIVABLE.
Schedule 3.7 contains a complete and accurate list of accounts receivable
------------
("Accounts Receivable") of the Acquired Companies as of March 31, 2002 and sets
-------------------
forth the aging of such Accounts Receivable. All Accounts Receivable that are
reflected on the Balance Sheet, Interim Balance Sheet or on the accounting
records of the Acquired Companies as of the Closing Date represent or will
represent valid obligations arising from sales actually made or services
actually performed in the ordinary course of business. Unless paid prior to the
Closing Date, and except as disclosed in Schedule 3.7, the Accounts Receivable
------------
are or will be as of the Closing Date current and collectible net of the
respective reserves shown on the Balance Sheet, Interim Balance Sheet or on the
accounting records of the Acquired Companies as of the Closing Date (which
reserves, to the knowledge of the Qualified Persons, are adequate and calculated
-13-
consistent with generally accepted accounting principles applicable in the
respective jurisdictions of organization).
3.8. INVENTORY.
All inventories of the Acquired Companies are useable or saleable in the
ordinary course of business, except as otherwise provided in the Financial
Statements or set forth on Schedule 3.8.
------------
3.9. NO UNDISCLOSED LIABILITIES.
Except as set forth in Schedule 3.9 or in the Financial Statements, the
------------
Acquired Companies have no liabilities or obligations of any nature except for
current accounts payable incurred since the date of the Interim Balance Sheet in
the ordinary course of business.
3.10. TAXES.
Except as set forth on Schedule 3.10, each of the Acquired Companies has
-------------
accurately prepared and filed all Tax Returns required to be filed prior to the
date of this Agreement. All such returns are true and correct in all material
respects. Any Tax required to be paid or withheld with respect to the periods
covered by such returns and statements have been paid or withheld. The
liabilities for unpaid Taxes shown on the Balance Sheet and the Interim Balance
Sheet are and will be sufficient to pay all Taxes accrued through the date
thereof. No Tax liability will be incurred by the Acquired Companies as a
result of the transactions contemplated by this Agreement. None of the Acquired
Companies has been delinquent in the payment of any Tax, or in the filing of any
Tax Return, and the Acquired Companies have not requested any extension of time
in which to file any Tax Return. Except as described in Schedule 3.10, (i) none
-------------
of the Acquired Companies has had any Tax deficiency proposed or assessed
against it; (ii) no audit of any Tax Return of any of the Acquired Companies is
in progress or threatened; and (iii) no waiver or agreement by an Acquired
Company is in force for the extension of time for the assessment or payment of
any Tax. To Seller's knowledge, no claim has ever been made by any Governmental
Body in a jurisdiction where an Acquired Company does not file Tax Returns that
it is or may be subject to taxation by that jurisdiction. There are no security
interests on any of the assets of the Acquired Companies that arose in
connection with any failure (or alleged failure) to pay any Tax. The Acquired
Companies are not party to or bound by any tax sharing agreement.
3.11. NO MATERIAL ADVERSE CHANGE.
Except as set forth on Schedule 3.11, since the date of the Balance Sheet,
-------------
no event has occurred that resulted in a Material Adverse Effect.
3.12. EMPLOYEE BENEFITS.
(a) Schedule 3.12 sets forth a true and complete list of all pension,
-------------
profit sharing, retirement, deferred compensation, stock purchase, stock option,
incentive
-14-
compensation, bonus, vacation, severance, sickness or disability,
hospitalization, individual and group health and accident insurance, individual
and group life insurance and other material employee benefit plans, programs,
commitments or funding arrangements maintained by the Acquired Companies, to
which any Acquired Company is a party, or under which any Acquired Company has
any obligations, present or future (other than obligations to pay current wages,
salaries or sales commissions terminable on notice of thirty (30) days or less)
in respect of, or which otherwise cover or benefit, any of the current or former
officers, employees or sales representatives (whether or not employees) of any
Acquired Company, or their beneficiaries (hereinafter individually referred to
as an "Employee Benefit Plan" and collectively referred to as "Employee Benefit
--------------------- ----------------
Plans").
-----
(b) Except as set forth in Schedule 3.12, each Employee Benefit
-------------
Plan described therein is in full force and effect in accordance with its terms
and is being maintained, administered and operated in all material respects in
accordance with its terms. There are no material actions, suits or claims
pending (other than routine claims for benefits), or threatened, against any
Employee Benefit Plan, against any Acquired Company, or any administrator or
fiduciary (collectively, the "Service Providers") with respect to an Employee
-----------------
Benefit Plan. The Acquired Companies and, to Seller's knowledge, the Service
Providers have performed all material obligations required to be performed by
them with respect to, and they are not in default under or in violation of, any
Employee Benefit Plan in any material respect, and the Acquired Companies and
the Service Providers are in compliance in all material respects with all Legal
Requirements applicable to the Employee Benefit Plans. The Acquired Companies
have satisfied all contribution obligations that have accrued prior to the
Closing Date.
3.13. COMPLIANCE WITH LEGAL REQUIREMENTS; GOVERNMENTAL AUTHORIZATIONS.
(a) Except as set forth in Schedule 3.13, each Acquired Company is,
-------------
and at all times since September 1, 2001 has been, in material compliance with
each Legal Requirement that is or was applicable to it or to the conduct or
operation of its business or the ownership or use of any of its assets.
(b) Schedule 3.13 contains a complete and accurate list of each
-------------
material Governmental Authorization that is held by any Acquired Company or that
otherwise relates to the business of, or to any of the assets owned or used by,
any Acquired Company. Each Governmental Authorization listed or required to be
listed in Schedule 3.13 is valid and in full force and effect. Except as set
-------------
forth in Schedule 3.13, each Acquired Company is, and at all times since
-------------
September 1, 2001 has been, in full compliance with all of the terms and
requirements of each Governmental Authorization identified or required to be
identified in Schedule 3.13.
-------------
(c) The Governmental Authorizations listed in Schedule 3.13
-------------
collectively constitute all of the Governmental Authorizations necessary to
permit the Acquired Companies to lawfully conduct and operate their businesses
in the manner they currently conduct and operate such businesses and to permit
the Acquired Companies to own and use their assets in the manner in which they
currently own and use such assets.
-15-
3.14. LEGAL PROCEEDINGS; ORDERS.
(a) Except as set forth in Schedule 3.14, there is no pending
-------------
Proceeding:
(i) that has been commenced by or against any Acquired Company
or that otherwise relates to or may affect the business of, or any of the assets
owned or used by, any Acquired Company; or
(ii) that challenges, or that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, any of the Contemplated
Transactions. Except as set forth on Schedule 3.14, to Seller's knowledge no
-------------
such Proceeding has been Threatened.
(b) Except as set forth in Schedule 3.14:
-------------
(i) there is no Order to which any of the Acquired Companies, or
any of the assets owned or used by any Acquired Company, is subject; and
(ii) Seller is not subject to any Order that relates to the
business of, or any of the assets owned or used by, any Acquired Company.
3.15. ABSENCE OF CERTAIN CHANGES AND EVENTS.
Except as set forth in Schedule 3.15, since the date of the Balance Sheet,
-------------
the Acquired Companies have conducted their businesses only in the ordinary
course of business and there has not been any:
(a) change in any Acquired Company's authorized or issued capital
stock; grant of any stock option or right to purchase shares of capital stock of
any Acquired Company; issuance of any shares of capital stock or issuance of any
security convertible into such capital stock; grant of any registration rights;
purchase, redemption, retirement, or other acquisition by any Acquired Company
of any shares of any such capital stock; or declaration or payment of any
dividend or other distribution or payment in respect of shares of capital stock;
(b) amendment to the Organizational Documents of any Acquired
Company;
(c) payment or increase by any Acquired Company of any bonuses,
salaries, or other compensation to any stockholder, director, officer, or
employee (other than monthly salary and benefits budgeted for 2002);
(d) damage to or destruction or loss of any asset or property of any
Acquired Company, materially and adversely affecting the properties, assets,
business, or financial condition of the Acquired Companies, taken as a whole;
(e) new loan agreements or guarantees entered into by the Acquired
Companies;
-16-
(f) sale (other than sales of inventory in the ordinary course of
business), lease, or other disposition of any asset or property of any Acquired
Company or mortgage, pledge, or imposition of any lien or other encumbrance on
any material asset or property of any Acquired Company, including the sale,
lease, or other disposition of any of the Intellectual Property Assets;
(g) cancellation or waiver of any claims or rights with a value to
any Acquired Company in excess of US$25,000;
(h) acquisitions of companies by the Acquired Companies;
(i) change in any of the officers of the Acquired Companies;
(j) transactions between Seller and the Acquired Companies;
(k) agreement, whether oral or written, by any Acquired Company to do
any of the foregoing.
3.16. CONTRACTS; NO DEFAULTS.
(a) Schedule 3.16(a) contains a complete and accurate list of:
----------------
(i)
(A) subject to (i)(B) below, each Applicable Contract that
involved payment by one or more Acquired Companies to any third party of an
amount or value in excess of US$50,000 during the calendar year ended December
31, 2001 or that is reasonably expected to involve payment by the one or more
Acquired Companies to any third party of more than US$50,000 during the calendar
year ending December 31, 2002;
(B) each employment contract entered into by one or more of
the Acquired Companies that involves payment of more than US$50,000 to any
person in any one calendar year;
(ii) each Applicable Contract that involved payment to one or
more Acquired Companies by any third party of an amount or value in excess of
US$50,000 during the calendar year ended December 31, 2001 or that is reasonably
expected to involve payment to one or more Acquired Companies by any third party
of more than US$50,000 during the calendar year ending December 31, 2002;
(iii) each lease, rental or occupancy agreement, license,
installment and conditional sale agreement, and other contract affecting the
ownership of, leasing of, title to, or any leasehold or other interest in, any
real or personal property;
(iv) each licensing agreement or other contract with respect to
any of the Intellectual Property Assets, including agreements with current or
former employees,
-17-
consultants, or contractors regarding the appropriation or the non-disclosure of
intellectual property rights;
(v) each collective bargaining agreement and other Applicable
Contract to or with any labor union or other employee representative of a group
of employees;
(vi) each joint venture, partnership, and other Applicable
Contract (however named) involving a sharing of profits, losses, costs, or
liabilities by any Acquired Company, with any other Person;
(vii) each Applicable Contract containing covenants that in any
way purport to restrict the business activity of any Acquired Company or to
limit the freedom of any Acquired Company to engage in any line of business or
to compete with any Person;
(viii) each written warranty, guaranty, and or other similar
undertaking with respect to contractual performance extended by any Acquired
Company other than in the ordinary course of business for an amount in excess of
US$50,000;
(ix) each non-competition agreement, non-solicitation agreement
and confidentiality agreement that runs to the benefit of any of the Acquired
Companies with regard to the business of the Acquired Companies;
(x) each Applicable Contract relating to indebtedness for an
amount in excess of US$50,000;
(xi) each Applicable Contract with any Governmental Authority;
and
(xii) each Applicable Contract between or among any Acquired
Company and Seller or any Acquired Company and any Affiliate of any Acquired
Company.
(b) Except as set forth in Schedule 3.16(b), each contract identified
----------------
or required to be identified in Schedule 3.16(a) is in full force and effect.
----------------
(c) To Seller's knowledge, except as set forth in Schedule 3.16(c),
----------------
no event has occurred or circumstance exists that (with or without notice or
lapse of time) may contravene, conflict with, or result in a violation or breach
of, or give any Acquired Company or other Person the right to declare a default
or exercise any remedy under, or to accelerate the maturity or performance of,
or to cancel, terminate, or modify any contract identified in Schedule 3.16(a).
----------------
3.17. INSURANCE.
(a) Schedule 3.17 lists all material policies or binders of fire,
-------------
liability (including product liability), worker's compensation, vehicular,
casualty, title or other insurance held by or on behalf of any Acquired Company
(specifying the insurer, the policy number or covering note number with respect
to binders and describing each pending claim thereunder other than routine
claims for coverage under a group medical plan insurance policy).
-18-
(b) All policies described in Schedule 3.17 (i) are valid,
outstanding and enforceable policies, and (ii) except as listed on Schedule
--------
3.17, will not be affected by, terminate, or lapse by reason of, the
----
transactions contemplated by this Agreement. No Acquired Company is in default
with respect to any provision contained in any policy described in Schedule 3.17
-------------
or has failed to give any material notice or present any material claim under
any such policy in a due and timely fashion. Except for claims set forth in
Schedule 3.17 and routine medical claims, there are no outstanding unpaid claims
-------------
under any such policy.
(c) No Acquired Company has received a notice of cancellation or
non-renewal of any such policy or binder and there is no failure to pay premiums
when due or other similar state of facts which would form the basis for
termination of any such insurance.
3.18. ENVIRONMENTAL MATTERS.
Except as set forth in Schedule 3.18:
-------------
(a) There has not, to the knowledge of the Qualified Persons or to
the knowledge of any employee responsible for safety or environmental matters at
any Acquired Company, been any activities, events or conditions in, on or under
any real property which is or has been owned, leased, occupied or under the
control of any Acquired Company (for purposes of this Section 3.18, the "Real
----
Property") at any time such Real Property was owned, leased, occupied or
--------
controlled by the Acquired Companies involving the presence, handling, use,
generation, treatment, storage, or disposal of any Hazardous Substances in
violation of applicable Environmental Law.
(b) There has not, to the knowledge of the Qualified Persons or to
the knowledge of any employee responsible for safety or environmental matters at
any Acquired Company, been any Releases of any Hazardous Substances at, to or
from any of the Real Property at any time since the Real Property has been
owned, leased, occupied or controlled by any Acquired Company that is or was in
material violation of applicable Environmental Law.
(c) To the knowledge of the Qualified Persons or to the knowledge of
any employee responsible for safety or environmental matters at any Acquired
Company, each Acquired Company has been at all times and is now in material
compliance with all, and has not received notice that it is otherwise subject to
any unsatisfied liability under any, Environmental Laws. There is no pending
or, to the knowledge of the Qualified Persons or to the knowledge of any
employee responsible for safety or environmental matters at any Acquired
Company, Threatened litigation, investigation or enforcement action,
administrative order or notice of violation brought under any Environmental Law
concerning any of the Acquired Companies' operations, assets or the Real
Property. None of the Acquired Companies has received any unsatisfied request
for information, notice of claim, demand or other notification or allegation
that it is or may be potentially responsible for any threatened or actual
Release of Hazardous Substances.
-19-
(d) Schedule 3.18 contains a complete list of all environmental
-------------
audits or reports regarding the Real Property performed by or on behalf of any
Acquired Company during the past five years, and Seller has made copies of all
such audits or reports available to Buyer.
3.19. EMPLOYEES.
(a) Schedule 3.19 contains a complete and accurate list of the
-------------
following information for each employee or director of the Acquired Companies as
of July 31, 2002, including each employee on leave of absence or layoff status:
employer; name; job title; current compensation paid or payable and any change
in compensation since April 1, 2002; and start date.
(b) Schedule 3.19 also contains a complete and accurate list of the
-------------
following information for each retired employee or director of the Acquired
Companies, or their dependants, currently receiving benefits from the Acquired
Companies or Seller or scheduled to receive benefits in the future: name,
pension benefit, pension option election, retiree medical insurance coverage,
retiree life insurance coverage, and other benefits.
3.20. LABOR RELATIONS; COMPLIANCE. No Acquired Company has been or is
a party to any collective bargaining or other labor contract. There has not
been, there is not presently pending or existing, and to Seller's knowledge
there is not Threatened, (a) any strike, slowdown, picketing, work stoppage, or
employee grievance process, (b) any proceeding against or affecting any Acquired
Company relating to the alleged violation of any legal requirement pertaining to
labor relations or employment matters, including any charge or complaint filed
by an employee or union with any Governmental Body, organizational activity, or
other labor or employment dispute against or affecting any of the Acquired
Companies or their premises, or (c) any application for certification of a
collective bargaining agent. To Seller's knowledge, no event has occurred or
circumstance exists that could provide the basis for any work stoppage or other
labor dispute. There is no lockout of any employees by any Acquired Company, and
no such action is contemplated by any Acquired Company.
3.21. INTELLECTUAL PROPERTY.
(a) Intellectual Property Assets. The term "Intellectual Property
---------------------------- ---------------------
Assets" includes:
------
(i) the names of each of the Acquired Companies, all fictional
business names, trading names, registered and unregistered trademarks, service
marks, and applications (collectively, "Marks") of the Acquired Companies or
-----
owned, used or licensed by any Acquired Company as licensee or licensor;
(ii) all patents, patent applications, and inventions and
discoveries that may be patentable (collectively, "Patents") of the Acquired
-------
Companies or owned, used or licensed by any Acquired Company as licensee or
licensor;
-20-
(iii) all copyrights in both published works and unpublished
works (collectively, "Copyrights") of the Acquired Companies or owned, used or
----------
licensed by any Acquired Company as licensee or licensor;
(iv) all know-how, trade secrets, confidential information,
customer lists, software, technical information, data, process technology,
plans, drawings, and blue prints (collectively, "Trade Secrets") of any Acquired
-------------
Company or owned, used, or licensed by any Acquired Company as licensee or
licensor; and
(v) any internet domain names registered by any of the Acquired
Companies (collectively, the "Domain Names").
------------
(b) Know-How Necessary for the Business.
The Intellectual Property Assets are all those necessary for the
operation of the Acquired Companies' businesses as they are currently conducted.
One or more of the Acquired Companies is the owner of all right, title, and
interest in and to each of the Intellectual Property Assets, free and clear of
all liens, security interests, charges, encumbrances, equities, and other
adverse claims, and has, to the knowledge of the Qualified Persons, the right to
use without payment to a third party all of the Intellectual Property Assets.
(c) Patents/Trademarks.
(i) Patents
(A) Schedule 3.21(c) contains a complete and accurate list
----------------
and summary description of all Patents. One or more of the Acquired Companies is
the owner of all right, title, and interest in and to each of the Patents, free
and clear of all liens, security interests, charges, encumbrances, and other
adverse claims.
(B) No Patent has been or is now involved in any
interference, reissue, reexamination, or opposition proceeding. To the knowledge
of the Qualified Persons, there is no potentially interfering patent or patent
application of any third party.
(C) No Patent is, to the knowledge of the Qualified
Persons, infringed or has been challenged or threatened in any way. To the
knowledge of the Qualified Persons, none of the products manufactured and sold,
nor any process or know-how used, by any Acquired Company infringes or is
alleged to infringe any patent or other proprietary right of any other Person.
(D) Except as set forth on Schedule 3.21(c), all products
----------------
made, used, or sold under the Patents have been marked with the proper patent
notice.
(ii) Trademarks.
-21-
(A) Schedule 3.21(c) contains a complete and accurate list
----------------
and summary description of all Marks. One or more of the Acquired Companies is
the owner of all right, title, and interest in and to each of the Marks, free
and clear of all liens, security interests, charges, encumbrances, equities, and
other adverse claims.
(B) No ▇▇▇▇ has been or is now involved in any opposition,
invalidation, or cancellation and, to the knowledge of the Qualified Persons, no
such action is Threatened with the respect to any of the Marks.
(C) To the knowledge of the Qualified Persons, there is no
potentially interfering trademark or trademark application of any third party.
(D) No ▇▇▇▇ is, to the knowledge of the Qualified Persons,
infringed or has been challenged or threatened in any way. To the knowledge of
the Qualified Persons, none of the Marks used by any Acquired Company infringes
or is alleged to infringe any trade name, trademark, or service ▇▇▇▇ of any
third party.
(E) Except as set forth on Schedule 3.21(c), all products
----------------
and materials containing a ▇▇▇▇ ▇▇▇▇ the proper registration notice where
permitted by law.
(d) Copyrights.
(i) Schedule 3.21(d) contains a complete and accurate list and
----------------
summary description of all Copyrights. One or more of the Acquired Companies is
the owner of all right, title, and interest in and to each of the Copyrights,
free and clear of all liens, security interests, charges, encumbrances,
equities, and other adverse claims.
(ii) No Copyright is, to the knowledge of the Qualified Persons,
infringed or has been challenged or threatened in any way. To the knowledge of
the Qualified Persons, none of the subject matter of any of the Copyrights
infringes or is alleged to infringe any copyright of any third party or is a
derivative work based on the work of a third party.
(iii) All works encompassed by the Copyrights have been marked
with the proper copyright notice.
(e) Trade Secrets.
(i) With respect to each Trade Secret, the documentation
relating to such Trade Secret is current, accurate, and sufficient in detail and
content to identify and explain it and to allow its full and proper use without
reliance on the knowledge or memory of any individual.
(ii) The Acquired Companies have taken all reasonable precautions
to protect the secrecy, confidentiality, and value of their Trade Secrets.
-22-
(iii) One or more of the Acquired Companies has good title and an
absolute (but not necessarily exclusive) right to use the Trade Secrets. The
Trade Secrets are not, to the knowledge of the Qualified Persons, part of the
public knowledge or literature, and, to the knowledge of the Qualified Persons,
have not been used, divulged, or appropriated either for the benefit of any
Person (other than one or more of the Acquired Companies or the Seller) or to
the detriment of the Acquired Companies. To the knowledge of the Qualified
Persons, no Trade Secret is subject to any adverse claim or has been challenged
or threatened in any way.
(iv) Seller will not use any Trade Secrets owned exclusively by
the Acquired Companies for its own benefit after the Closing Date.
(f) Schedule 3.21(f) contains a complete and accurate list of the
----------------
Domain Names. One or more of the Acquired Companies is the registered owner of
each of the Domain Names.
3.22. BROKERS OR FINDERS.
Seller has incurred no obligation or liability, contingent or otherwise,
for brokerage or finders' fees in connection with this agreement other than any
fees payable to SSG Capital Advisors, L.P., which shall be the sole obligation
of Seller.
3.23. INTER-COMPANY ACCOUNTS.
Schedule 3.23 sets forth:
-------------
(i) all debts and receivables between Seller and its
Subsidiaries (other than Terraillon) and any Acquired Company as of March 31,
2002 and July 31, 2002; and
(ii) all deposits, securities and guarantees granted by an
Acquired Company to secure the debt of Seller or any Affiliate of Seller.
3.24. SILTEC INSTRUMENTS.
Siltec Instruments Limited is a dormant entity that has ceased operations.
Provided that no actions are taken to dissolve or liquidate Siltec Instruments
by Buyer or any Affiliate or transferee of Buyer, the Acquired Companies will
not incur liability arising out of their 47% ownership interest in Siltec
Instruments.
3.25. INDUSTRIAL DEVELOPMENT AGENCY GRANT.
The Acquired Companies will not incur liability arising out of any
obligation to repay the 1992 Market Support Grant in the aggregate amount of IR
46,131 to ▇▇▇▇▇▇ Industries Limited from the Industrial Development Agency in
Ireland.
-23-
3.26. ENTERPRISE IRELAND GRANT.
The Acquired Companies will not incur liability arising out of any
obligation to repay the grant in the aggregate amount of Euro 85,885 to ▇▇▇▇▇▇
Industries Limited from Enterprise Ireland under the Research and Technology and
Innovation Initiative.
3.27. TERRAILLON S.A. CAPITAL INCREASE.
The Acquired Companies will not incur liability arising out of the
provision by Compagnie Europeenne de Pesage of additional capital to Terraillon,
S.A. on June 26, 1996 pursuant to an order of the Paris Commercial Court.
3.28. TERRAILLON S.A. FRENCH BUSINESS TAX MATTERS.
(i) The Acquired Companies will not incur liability as a result
of the failure of Terraillon S.A. to include the rental value of certain tools
that were provided free of charge to subcontractors of Terraillon S.A. (but not
used by Terraillon S.A.) in the computation of its 2000 French business license
tax.
(ii) The Acquired Companies will not incur liability as a result
of the failure of Terraillon S.A. to include the assets relating to its
production site in Annemasse, France in the computation of its French business
tax for the years 1999 through 2001.
3.29. DISCONTINUANCE OF OPERATIONS IN SLIGO.
The Acquired Companies will not incur any liability for employment law
based claims by former ▇▇▇▇▇▇ Industries Limited employees as a result of the
discontinuance of the Acquired Companies' operations in Sligo, Ireland.
3.30. TERRAILLON SRL.
The Acquired Companies will not incur any liability as a result of the 1987
tax audit of Terraillon Srl by the Italian Revenue Commissioners in Milan.
3.31. HIBERNIA LITIGATION.
Neither the Acquired Companies nor Buyer will incur any liability as a
result of the lawsuit between Hibernia Development Capital Partners I ilp and
Hibernia Development Capital Partners II ilp and Seller (The High Court,
Ireland, Record No. 10094P).
3.32. NO OTHER REPRESENTATIONS AND WARRANTIES.
Except for the representations and warranties contained in ARTICLE III,
Seller makes no other representation or warranty, express or implied, written or
oral, and hereby disclaims any such representation or warranty whether by Seller
or any of its officers, directors, employees, agents or representatives or any
other Person, with respect to the Shares, the Acquired
-24-
Companies or the Contemplated Transactions, notwithstanding the delivery or
disclosure to Buyer, any Affiliate of Buyer or any of their respective officers,
directors, employees, agents or representatives or any other person of any
documentation or other information with respect to any one or more of the
foregoing.
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1. ORGANIZATION AND GOOD STANDING.
Buyer is a corporation duly organized, validly existing, and in good
standing under the laws of Luxembourg.
4.2. AUTHORITY; NO CONFLICT.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
Upon the execution and delivery by Buyer and the other parties thereto of the
Escrow Agreement, the Escrow Agreement will constitute the legal, valid, and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms. Buyer has the corporate power and authority to execute and deliver this
Agreement and the Escrow Agreement and to perform its obligations under this
Agreement and the Escrow Agreement.
(b) Except as set forth in Schedule 4.2, neither the execution and
------------
delivery of this Agreement by Buyer nor the consummation or performance of any
of the Contemplated Transactions by Buyer will give any Person the right to
prevent, delay, or otherwise interfere with any of the Contemplated Transactions
pursuant to:
(i) any provision of Buyer's Organizational Documents;
(ii) any Legal Requirement or Order to which Buyer may be
subject; or
(iii) any Contract to which Buyer is a party or by which Buyer
may be bound.
(c) Except as set forth in Schedule 4.2, Buyer is not and will not be
------------
required to obtain any Consent from any Person in connection with the execution
and delivery of this Agreement or the consummation or performance of any of the
Contemplated Transactions.
4.3. AVAILABILITY OF FUNDS.
Buyer shall have immediately available funds sufficient to enable it to
consummate the Contemplated Transactions on the Closing Date.
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4.4 SECURITIES MATTERS.
Buyer understands that the offering and sale of the Shares hereunder is
intended to be exempt from the registration requirements of the Securities Act.
The Shares are being acquired by Buyer for its own account and without a view to
the public distribution of the Shares or any interest therein. Buyer has
sufficient knowledge and experience in financial and business matters so as to
be capable of evaluating the merits and risks of its investment in the Shares,
and Buyer is capable of bearing the economic risks of such investment, including
a complete loss of its investment in the Shares. In evaluating the suitability
of an investment in the Shares, Buyer has relied solely upon its own
investigation and the representations, warranties, covenants and agreements made
by Seller herein and Buyer has not relied upon any other representations or
other information (whether oral or written and including any projections or
supplemental data) made or supplied by or on behalf of Seller or any Affiliate,
employee, agent or other representative of Seller. Buyer understands and agrees
that it may not sell or dispose of any of the Shares other than pursuant to a
registered offering or in a transaction exempt from the registration
requirements of applicable securities laws.
4.5. CERTAIN PROCEEDINGS.
There is no pending Proceeding that has been commenced against Buyer and
that challenges, or may have the effect of preventing, delaying, making illegal,
or otherwise interfering with, any of the Contemplated Transactions. To Buyer's
knowledge, no such Proceeding has been Threatened.
4.6. BROKERS OR FINDERS.
Buyer and its officers and agents have incurred no obligation or liability,
contingent or otherwise, for brokerage or finders' fees in connection with this
Agreement and will indemnify and hold Seller harmless from any such payment
alleged to be due by or through Buyer as a result of the action of Buyer or its
officers or agents.
ARTICLE V COVENANTS OF SELLER PRIOR TO CLOSING DATE
5.1. ACCESS AND INVESTIGATION.
Between the date of this Agreement and the Closing Date, Seller agrees to
give Buyer and its Representatives reasonable access, during normal business
hours, in a manner so as not to interfere unreasonably with the normal business
operations of the Acquired Companies, to all books, records, personnel, offices
and other facilities and properties of the Acquired Companies and its
accountants' work papers, subject to such Representatives' agreement to be bound
by the terms of the Confidentiality Agreement dated as of May 29, 2002 between
Buyer and Seller or such other form of confidentiality agreement as Seller may
reasonably require.
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5.2 OPERATION OF THE BUSINESSES OF THE ACQUIRED COMPANIES.
Between the date of this Agreement and the Closing Date, Seller will, and
will cause each Acquired Company to:
(a) conduct the business of such Acquired Company only in the
ordinary course of business;
(b) use their best efforts to preserve intact the current business
organization of such Acquired Company, keep available the services of the
current officers, employees, and agents of such Acquired Company, and maintain
the relations and good will with suppliers, customers, landlords, creditors,
employees, agents, and others having business relationships with such Acquired
Company; and
(c) continue to pay trade creditors of such Acquired Company in
accordance with past practice and in accordance with the commercial payment
terms agreed to by each Acquired Company and such creditors.
5.3. NEGATIVE COVENANT.
Except as otherwise expressly permitted by this Agreement, between the date
of this Agreement and the Closing Date, Seller will not, and will cause each
Acquired Company not to, without the prior written consent of Buyer, take any
affirmative action, or fail to take any reasonable action within their or its
control, as a result of which any of the changes or events listed in Section
3.15 is likely to occur.
5.4. REQUIRED APPROVALS.
As promptly as practicable after the date of this Agreement, Seller will,
and will cause each Acquired Company to, make all filings required by Legal
Requirements to be made by Seller in order to consummate the Contemplated
Transactions. Between the date of this Agreement and the Closing Date, Seller
will, and will cause each Acquired Company to, (a) cooperate with Buyer with
respect to all filings that Buyer elects to make or is required by Legal
Requirements to make in connection with the Contemplated Transactions, and (b)
cooperate with Buyer in obtaining all consents identified in Schedule 4.2.
------------
5.5. NOTIFICATION.
Between the date of this Agreement and the Closing Date, Seller will
promptly notify Buyer in writing if Seller or any Acquired Company becomes aware
of any fact or condition that causes or constitutes a breach of any of Seller's
representations and warranties as of the date of this Agreement, or if Seller or
any Acquired Company becomes aware of the occurrence after the date of this
Agreement of any fact or condition that would (except as expressly contemplated
by this Agreement) cause or constitute a breach of any such representation or
warranty had such representation or warranty been made as of the time of
occurrence or discovery of such fact or condition. Should any such fact or
condition require any change in the Schedules if the
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Schedules were dated the date of the occurrence or discovery of any such fact or
condition, Seller will promptly deliver to Buyer a supplement to the Schedules
specifying such change. During the same period, Seller will promptly notify
Buyer of the occurrence of any breach of any covenant of Seller in this ARTICLE
V or of the occurrence of any event that may make the satisfaction of the
conditions in ARTICLE VII impossible or unlikely.
5.6. BEST EFFORTS.
Between the date of this Agreement and the Closing Date, Seller will use
its best efforts to cause the conditions in ARTICLE VII and ARTICLE VIII to be
satisfied.
ARTICLE VI COVENANTS OF BUYER PRIOR TO CLOSING DATE
6.1. REQUIRED APPROVALS.
As promptly as practicable after the date of this Agreement, Buyer will,
and will cause each of its Affiliates to, make all filings required by Legal
Requirements to be made by them to consummate the Contemplated Transactions.
Between the date of this Agreement and the Closing Date, Buyer will, and will
cause each Affiliate to, cooperate with Seller with respect to all filings that
Seller is required by Legal Requirements to make in connection with the
Contemplated Transactions, and (ii) cooperate with Seller in obtaining all
consents identified in Schedule 3.2.
------------
6.2. BEST EFFORTS.
Except as set forth in Section 6.1, between the date of this Agreement and
the Closing Date, Buyer will use its best efforts to cause the conditions in
ARTICLE VII and ARTICLE VIII to be satisfied.
ARTICLE VII CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Shares and to take the other actions
required to be taken by Buyer at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Buyer, in whole or in part):
7.1. ACCURACY OF REPRESENTATIONS.
Seller's representations and warranties in this Agreement must have been
accurate in all material respects as of the date of this Agreement, and must be
accurate in all material respects as of the Closing Date as if made on the
Closing Date, without giving effect to any supplement to the Schedules.
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7.2 SELLER'S PERFORMANCE.
(a) All of the covenants and obligations that Seller is required to
perform or to comply with pursuant to this Agreement at or prior to the Closing
must have been duly performed and complied with in all material respects.
(b) Each document required to be delivered by Seller pursuant to
Section 2.4(a) must have been delivered.
7.3. NO PROCEEDINGS.
Since the date of this Agreement, there must not have been commenced or
Threatened against Buyer any Proceeding:
(a) involving any challenge to, or seeking damages or other relief in
connection with, any of the Contemplated Transactions; or
(b) that may have the effect of preventing, delaying, making illegal,
or otherwise interfering with any of the Contemplated Transactions.
7.4. NO CLAIM REGARDING STOCK OWNERSHIP OR SALE PROCEEDS.
Since the date of this Agreement, there must not have been made or
Threatened by any Person any claim (other than matters disclosed on Schedule
--------
3.14) asserting that such Person:
-----
(a) is the holder or the beneficial owner of, or has the right to
acquire or to obtain beneficial ownership of, any stock of, or any other voting,
equity, or ownership interest in, any of the Acquired Companies; or
(b) is entitled to all or any portion of the Purchase Price payable
for the Shares.
7.5. APPROVAL OF MINISTER FOR ENTERPRISE, TRADE AND EMPLOYMENT.
The parties shall have received (i) a written statement from the Irish
Minister for Enterprise, Trade and Employment (the "Minister") providing that
--------
the Minister does not intend to make an order under Section 9 of the Mergers Act
in relation to the proposed purchase of the Shares, or (ii) an order from the
Minister that is acceptable to Seller, or (if no such order is made and the
Minister does not express in writing the intent to make such an order), that the
relevant period within the meaning of Section 6 of the Mergers Act elapses (the
receipt of any of the documents referred to in clauses (i) and (ii) or the lapse
of the relevant period being referred to as the "IMETE Approval").
--------------
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ARTICLE VIII CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
Seller's obligation to sell the Shares and to take the other actions
required to be taken by Seller at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Seller, in whole or in part):
8.1. ACCURACY OF REPRESENTATIONS.
Buyer's representations and warranties in this Agreement must have been
accurate in all material respects as of the date of this Agreement and must be
accurate in all material respects as of the Closing Date as if made on the
Closing Date.
8.2. BUYER'S PERFORMANCE.
(a) All of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior to the Closing
must have been performed and complied with in all material respects.
(b) Buyer must have delivered each of the documents required to be
delivered by Buyer pursuant to Section 2.4(b) and must have made the cash
payments required to be made by Buyer pursuant to Section 2.4(b)(i) and Section
2.4(c).
8.3. NO PROCEEDINGS.
Since the date of this Agreement, there must not have been commenced or
Threatened against Seller any Proceeding:
(a) involving any challenge to, or seeking damages or other relief in
connection with, any of the Contemplated Transactions; or
(b) that may have the effect of preventing, delaying, making illegal,
or otherwise interfering with any of the Contemplated Transactions.
8.4. APPROVAL OF MINISTER FOR ENTERPRISE, TRADE AND EMPLOYMENT.
The parties shall have received the IMETE Approval.
ARTICLE IX TERMINATION
9.1. TERMINATION EVENTS.
This Agreement may, by notice given prior to or at the Closing, be
terminated:
(a)
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(i) by Buyer if any of the conditions in ARTICLE VII has not
been satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through the failure of Buyer to comply with
its obligations under this Agreement) and Buyer has not waived such condition on
or before the Closing Date; or
(ii) by Seller, if any of the conditions in ARTICLE VIII has not
been satisfied as of the Closing Date or if satisfaction of such a condition is
or becomes impossible (other than through the failure of Seller to comply with
its obligations under this Agreement) and Seller has not waived such condition
on or before the Closing Date;
(b) by mutual consent of Buyer and Seller; or
(c) by either Buyer or Seller if the Closing has not occurred (other
than through the failure of any party seeking to terminate this Agreement to
comply fully with its obligations under this Agreement) on or before September
30, 2002 or such later date as the parties may agree upon.
9.2. EFFECT OF TERMINATION.
Each party's right of termination under Section 9.1 is in addition to any
other rights it may have under this Agreement or otherwise, and the exercise of
a right of termination will not be an election of remedies. If this Agreement is
terminated pursuant to Section 9.1, all further obligations of the parties under
this Agreement will terminate, except that the obligations in Section 11.1 and
Section 11.3 will survive; provided, however, that if this Agreement is
terminated by a party because of the breach of the Agreement by the other party
or because one or more of the conditions to the terminating party's obligations
under this Agreement is not satisfied as a result of the other party's failure
to comply with its obligations under this Agreement, the terminating party's
right to pursue all legal remedies will survive such termination unimpaired.
ARTICLE X INDEMIFICATION; REMEDIES
10.1. SURVIVAL.
(a) Except as provided in Section 10.1(b) below, the representations
and warranties set forth in this Agreement shall survive for a period of twelve
months after the Closing Date.
(b) Notwithstanding Section 10.1(a):
(i) The representations and warranties contained in Sections
3.10, 3.12, 3.24, 3.25, 3.26, 3.28, 3.29, 3.30 and 3.31 shall survive for the
applicable period of any statute of limitations relating thereto;
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(ii) The representations and warranties contained in clause (b)
of Section 3.20 when applied to any Dormant Company shall survive for the
applicable period of any statute of limitations relating thereto;
(iii) The representations and warranties contained in Section
3.18 shall survive for ten years after the Closing Date;
(iv) The representations and warranties contained in Section 3.27
shall survive for four years after the Closing Date; and
(v) The representations and warranties contained in Section 3.21
shall survive for the lesser of three years or the expiration of the applicable
period of any statute of limitations relating thereto.
(c) No party providing indemnification pursuant to this ARTICLE X (an
"Indemnifying Party") shall be obligated to provide such indemnification to the
------------------
party seeking indemnification (the "Indemnified Party") unless the Indemnifying
-----------------
Party shall have received written notice thereof within the time period for
survival of representations or warranties set forth in Section 10.1(a) or
Section 10.1(b), as applicable.
10.2. INDEMNIFICATION.
(a) Subject to the other provisions of this ARTICLE X, from and after
the Closing, Seller shall indemnify and hold harmless the Buyer and its
officers, directors, Affiliates, shareholders and agents (the "Buyer Indemnified
-----------------
Parties") from and against any costs or expenses (including without limitation
-------
attorneys' fees, and the reasonable out-of-pocket expenses of testifying and
preparing for testimony and responding to document and other information
requests, and in connection with the enforcement of any rights hereunder,
whether or not a party to such litigation), judgments, liabilities, fines,
amounts paid in settlement, losses, claims and damages (collectively,
"Damages"), as incurred, to the extent they relate to, arise out of or are the
result of:
(i) the breach of or any inaccuracy in any of the
representations and warranties of Seller contained in or made pursuant to this
Agreement;
(ii) the breach or nonperformance of any covenant or agreement of
Seller contained in this Agreement; and
(iii) any claim for indemnification by Tefal S.A. arising out of
the sale of Tournus by Terraillon S.A. to Tefal S.A.
(b) Subject to the other provisions of this ARTICLE X, from and after
the Closing, Buyer shall indemnify and hold harmless Seller and its officers,
directors, affiliates, shareholders and agents (the "Seller Indemnified
------------------
Parties") from and against any Damages, as incurred, to the extent they relate
to, arise out of or are the result of:
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(i) the breach of or any inaccuracy in any of the
representations and warranties of Buyer contained in or made pursuant to this
Agreement; and
(ii) the breach or nonperformance of any covenant or agreement of
Buyer contained in this Agreement.
(c) Notwithstanding the foregoing, in the absence of fraud or
intentional misrepresentation, to the extent any Buyer Indemnified Party is
entitled to indemnification pursuant to this Section 10.2, the aggregate amount
of all Damages for which all Buyer Indemnified Parties shall be entitled to
indemnification shall not exceed US$4,600,000 (except for claims for
indemnification as a result of a breach of the representation contained in
Section 3.31 to which this US$4,600,000 limit shall not apply).
(d) Notwithstanding the foregoing, Seller shall not be required to
indemnify or hold harmless any Person with respect to (i) any claim for
indemnification pursuant to Section 10.2, unless and until the Buyer Indemnified
Parties' aggregate Damages in respect of all such claims exceed US$75,000 after
which the Indemnifying Party shall be liable for all such Damages without
deduction.
(e) The parties hereto hereby acknowledge and agree that the sole and
exclusive remedy of the Buyer Indemnified Parties and Seller Indemnified
Parties, as the case may be, from and after the Closing with respect to Damages
and any and all claims for any breach or liability under this Agreement or
otherwise relating to the subject matter of this Agreement and the Contemplated
Transactions shall be solely in accordance with, and limited by, the
indemnification provisions set forth in this ARTICLE X. In furtherance of the
foregoing, Buyer and Seller hereby waive on their own behalf and on behalf of
each other applicable Indemnified Party, to the fullest extent permitted under
applicable law, any and all rights, claims and causes of action it or they may
have against Seller or Buyer, as the case may be, arising under or based upon
any law (including, (i) any such rights, claims or causes of action arising
under or based upon common law or otherwise and (ii) any and all claims for
Damages or contribution arising under any Environmental Law).
10.3. CLAIMS.
(a) If an Indemnified Party intends to seek indemnification pursuant
to this ARTICLE X, such Indemnified Party shall promptly notify the Indemnifying
Party, in writing, of such claim describing such claim in reasonable detail;
provided, that, the failure to provide such notice shall not affect the
-------- ----
obligations of the Indemnifying Party unless and only to the extent it is
actually prejudiced thereby, subject, however, to the time periods specified in
Section 10.1. In the event that such claim involves a claim by a third party
against the Indemnified Party which seeks Damages in an amount in respect of
which indemnification pursuant to this ARTICLE X would be available, the
Indemnifying Party shall have 30 days after receipt of such notice to decide
whether it will undertake, conduct and control, through counsel of its own
choosing and at its own expense, the settlement or defense thereof, and if it so
decides, the Indemnified Party shall cooperate with it in connection therewith;
provided, that, the Indemnified Party may participate in such settlement or
-------- ----
defense through counsel chosen by it, and provided further, that,
---------------- ----
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the fees and expenses of such counsel shall be borne by the Indemnified Party.
The Indemnifying Party may settle or compromise any action respecting any such
third party claim; provided, however, that the prior written consent of the
Indemnified Party, which consent shall not be unreasonably withheld, shall be
required in the case of any settlement that provides for any relief other than
the payment of monetary damages. If the Indemnifying Party does not notify the
Indemnified Party within 30 days after the receipt of the Indemnified Party's
notice of a claim of indemnity hereunder that it elects to undertake the defense
thereof, the Indemnified Party shall have the right to contest, settle or
compromise the claim in accordance with the provisions of this Section 10.3 but
shall not thereby waive any right to indemnity therefor pursuant to this
Agreement. The Indemnified Party may not settle any claim or action without the
prior written consent of the Indemnifying Party, which consent shall not be
unreasonably withheld.
(b) The Indemnifying Party and the Indemnified Party shall cooperate
fully in all aspects of any investigation, defense, pre-trial activities, trial,
compromise, settlement or discharge of any claim in respect of which indemnity
is sought pursuant to ARTICLE X, including by providing the other party with
reasonable access to employees and officers (including as witnesses) and other
information.
10.4. RIGHT OF SET-OFF.
Upon notice to Seller and the Escrow Agent specifying in reasonable detail
the basis for such set-off, during the period the Escrow Agreement is in effect,
Buyer may set off any amount to which it is conclusively entitled under this
ARTICLE X against the Deferred Purchase Price in accordance with the provisions
of the Escrow Agreement. Neither the exercise of nor the failure to exercise
such right of set-off will constitute an election of remedies or limit Buyer in
any manner in the enforcement of any other remedies that may be available to it.
10.5. NO LIABILITY FOR DISCLOSED MATTERS.
Notwithstanding anything to the contrary contained in this Agreement or
otherwise, Seller shall not be liable under the indemnification provisions of
this ARTICLE X for any misrepresentation or breach of warranty or covenant under
this Agreement of which the officers or directors of Buyer had actual knowledge
prior to the Closing Date, but that was not known to the Qualified Persons
(except for breaches of the representations and warranties contained in Sections
3.24, 3.25, 3.26, 3.27, 3.28, 3.29, 3.30 and 3.31 to which this Section 10.5
shall not apply).
ARTICLE XI GENERAL PROVISIONS
11.1. EXPENSES/TAXES.
Except as otherwise expressly provided in this Agreement, each party to
this Agreement will bear its respective expenses incurred in connection with the
preparation, execution, and performance of this Agreement and the Contemplated
Transactions, including all fees and expenses of agents, representatives,
counsel, and accountants. All transfer, documentary, sales,
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use, stamp, registration and other such Taxes or fees (including any penalties
and interest) incurred in connection with this Agreement or the Contemplated
Transactions shall be borne by the party legally obligated to make the payment.
11.2. PUBLIC ANNOUNCEMENTS.
Any public announcement or similar publicity with respect to this Agreement
or the Contemplated Transactions will be issued, if at all, at such time and in
such manner as is mutually agreed upon by the parties hereto.
11.3. CONFIDENTIALITY.
Between the date of this Agreement and the Closing Date, Buyer and Seller
will maintain in confidence, and will cause the directors, officers, employees,
agents, and advisors of Buyer, Seller and the Acquired Companies to maintain in
confidence, and not use to the detriment of another party or an Acquired Company
any written, oral, or other information obtained in confidence from another
party or an Acquired Company in connection with this Agreement or the
Contemplated Transactions, unless (a) such information is already known to such
party or to others not bound by a duty of confidentiality or such information
becomes publicly available through no fault of such party, (b) the use of such
information is necessary or appropriate in making any filing or obtaining any
consent or approval required for the consummation of the Contemplated
Transactions, or (c) the furnishing or use of such information is required by
legal proceedings. If the Contemplated Transactions are not consummated, each
party will return or destroy as much of such written information as the other
party may reasonably request
11.4. NOTICES.
(a) All notices required or permitted hereunder shall be in writing
and shall be sufficiently given if: (i) hand delivered (in which case the notice
shall be effective upon delivery); (ii) telecopied, provided that in such case a
--------
copy of such notice shall be concurrently sent by registered or certified mail,
return receipt requested, postage prepaid (in which case the notice shall be
effective one day following dispatch); (iii) delivered by Express Mail, Federal
Express, DHL or other recognized overnight courier service (in which case the
notice shall be effective two business days following dispatch); or (iv)
delivered or mailed by registered or certified mail, return receipt requested,
postage prepaid (in which case the notice shall be effective five days following
dispatch), in each case to the addresses set forth below:
SELLER:
Measurement Specialties, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (973) 808 - 1787
WITH A COPY TO:
-▇▇-
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
BUYER:
Fukuda (Luxembourg) Sar.l.
▇▇▇, ▇▇▇▇▇ ▇'▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
RC Luxembourg: B85.414
Attention: Bruno Bagnouls
Facsimile No: (+352) 48 18 63
WITH A COPY TO:
▇▇▇▇▇ Exco Sud-Est
7 all e ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - 69134 Ecully cedex
Attention: ▇▇▇▇-▇▇▇▇ GOUGET
Facsimile No: ▇▇ (▇) ▇ ▇▇ ▇▇ ▇▇ 17
or at any such address as any party may hereinafter specify in a written
notice to the other.
(b) Notwithstanding the foregoing, if a notice is given or served at
business premises other than during usual business hours on a business day, it
will be deemed to be given or served on the next following business day.
(c) All notices or other communications shall be in the English
language.
(d) Following the Closing Date any notifications to be sent on behalf
of Buyer may be sent directly by Buyer or by any Acquired Company.
11.5. GOVERNING LAW/JURISDICTION.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New Jersey, without giving effect to conflicts of laws
principles thereof. Any disputes or controversies arising under this Agreement
shall be resolved exclusively by the state or federal courts located in the
State of New Jersey and each of the parties hereto consents to the exclusive
jurisdiction of such courts in connection with the subject matter hereof. Each
of the parties agrees that service of process may be effected by delivery of
registered or certified mail to the address set forth above.
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11.6. FURTHER ASSURANCES.
The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things, all as the other party may reasonably
request for the purpose of carrying out the intent of this Agreement and the
documents referred to in this Agreement.
11.7. WAIVER.
The failure of either party to enforce at any time or for any period of
time any one or more of the provisions hereof shall not be construed to be a
waiver of such provisions or of the right of such party thereafter to enforce
each such provision.
11.8. ENTIRE AGREEMENT AND MODIFICATION.
This Agreement supersedes all prior agreements between the parties with
respect to its subject matter (including the Letter of Intent between Buyer and
Seller dated July 23, 2002) and constitutes (along with the documents
incorporated into this Agreement) a complete and exclusive statement of the
terms of the agreement between the parties with respect to its subject matter.
This Agreement may not be amended except by a written agreement executed by the
party to be charged with the amendment.
11.9. ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS.
Neither party may assign any of its rights under this Agreement without the
prior consent of the other party. Subject to the preceding sentence, this
Agreement will apply to, be binding in all respects upon, and inure to the
benefit of the successors and permitted assigns of the parties. Nothing
expressed or referred to in this Agreement will be construed to give any Person
other than the parties to this Agreement any legal or equitable right, remedy,
or claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the parties to this Agreement and their successors
and assigns.
11.10. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
will be deemed to be an original copy of this Agreement and all of which, when
taken together, will be deemed to constitute one and the same agreement.
[REMAINDER OF THE PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties have executed and delivered this Stock
Purchase Agreement as of the date first written above.
BUYER:
FUKUDA (Luxembourg) Sar.l.
BY:
-----------------------------------
Name: CHAI, Yat-Chiu
Title: Manager
BY:
-----------------------------------
Name: CHAI, ▇▇▇▇-▇▇▇▇
Title: Manager
SELLER:
MEASUREMENT SPECIALTIES, INC.
BY:
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
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