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EXHIBIT 2
ASSET PURCHASE AGREEMENT
AGREEMENT, dated as of the 30 December 1996 (herein, together with the Exhibits
attached hereto, referred to as the "Agreement"), between European Technology
Partner AS a company with limited liability duly incorporated under Norwegian
law ("Seller") and LCC International AS a company with limited liability duly
incorporated under Norwegian law ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is engaged in the business of the design, marketing, sale and
supply of hardware and software products, and related services, to the wireless
telecommunications industry including, without limitation, network monitoring.
network quality, asset management and network analysis systems and products
(referred to herein as the "Acquired Business");
WHEREAS, Seller desires to sell and assign to Buyer, and Buyer desires to
acquire from Seller, the Acquired Business and the parties desire that Buyer
assume the liabilities (except as otherwise excluded herein) of the Acquired
Business, as set forth in this Agreement;
NOW, THEREFORE, the Buyer and Seller hereby agree as follows:
1 SALE AND PURCHASE OF ASSETS; ASSUMPTION OF LIABILITIES
1.1 Sale and Purchase of Assets
Upon the terms and subject to the conditions contained herein, on the
Closing Date (as defined in Section 3), Seller shall sell, convey,
transfer and deliver to Buyer and Buyer will purchase and accept from
Seller, all of the assets used in connection with the Acquired
Business (the "Purchased Assets"), including without limitation the
following:
(a) all agreements, leases, licenses, insurance contracts,
commitments, sale and purchase orders, delivery orders, change
orders, agreements with sales representatives, non-disclosure
agreements, internal work orders, teaming agreements and other
instruments of any kind, whether written or oral, relating to
the Acquired Business and any pending contracts or bid
submitted by Seller in connection with the Acquired Business
("Contracts");
(b) all current account receivables and cash at hand (as defined
in Section 4.5) of the Acquired Business ("Receivables");
(c) all goods in stock and work in progress (as defined in Section
4.6.) of the Acquired Business ("Inventories");
(d) all fixed assets (as defined in Section 4.7) of the Acquired
Business ("Fixed Assets");
(e) all tangible and intangible property, intellectual property
rights, and other assets of the Acquired Business relating to
the Seller's software and hardware products including, without
limitation, those set forth in Exhibit A; all trademarks,
service marks and logos used in the Acquired Business,
including, without limitation, the registered trademark
Cellad; the corporate name European Technology Partners AS;
trade secrets, know-how, copyrights, customer and supplier
lists, mailing lists, advertising lists, and other proprietary
and confidential information of the Acquired Business; and
copies of all records, files and papers relating to the
Acquired Business and the Purchased Assets,
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including, without limitation, drawings, engineering
information, supplies, computer programs, manuals and data,
sales and advertising materials, sales and purchase
correspondence, business plans and personnel, employment and
other records (the "Intellectual Property");
(f) all rights against third parties related to the Acquired
Business or the Purchased Assets;
(g) all prepaid expenses relating to the Purchased Assets;
(h) all of any of Seller's interest at the Closing Date in any
other asset necessary to permit the operation by Buyer of the
Acquired Business in substantially the same manner as the
Acquired Business has heretofore been conducted.
(i) the employment contracts for those employees mentioned in
Exhibit B.
1.2 Assumption of Liabilities
On the Closing Date, except as provided below, Buyer shall assume the
liabilities associated with the Acquired Business and the Purchased
Assets (the "Assumed Liabilities"). Without limiting the foregoing
the following shall not be considered Assumed Liabilities:
(a) other than those amounts accrued on Seller's financial
statements and reflected in Exhibit D, any federal, state,
local or foreign income, gross receipts, profits, franchise,
doing business, transfer, sales, use, property (real or
personal), excise and similar taxes (including interest,
penalties or additions to such taxes) (herein referred to as
"Taxes") that arise from the operation of the Acquired
Business or are related to the Purchased Assets and accrued or
are allocable to periods on or prior to the Closing Date;
(b) costs or expenses incurred by Seller incident to this
Agreement or to the performance of, or compliance with, this
Agreement;
(c) any claims or liabilities arising (i) in connection with any
material breach prior to the Closing Date of any Contract or
(ii) in connection with any violation of applicable laws and
regulations or otherwise related to conditions existing in, or
operations of, the Acquired Business or Purchased Assets prior
to the Closing Date; or
(d) any of Seller's liabilities or obligations under this
Agreement or any related agreement or instrument, including
any liability for Taxes, including income taxes arising out of
a deferred gain on any deferred intercompany transaction,
arising out of this Agreement;
(e) except for Seller's line of credit with DNB having an
approximate outstanding balance of NOK800,000 as of the
Closing Date, any and all interest bearing debt of Seller,
short term or long term, including any and all commitment
fees, interest, or other charges relating to such debts
including, without limitation, convertible loans issued by
employees or share-holders of Seller, and any bank lines of
credit or loans issued to Seller;
(f) any and all agreements, commitments, obligations or
commitments relating to the share capital or equity securities
of Seller or between the Seller and any shareholder thereof;
(g) any and all claims or liabilities relating to or arising out
of environmental, regulatory (both foreign and domestic),
pension, products liability, or other extraordinary
liabilities arising other than in the ordinary course of the
Acquired Business prior to the Closing Date.
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2. PURCHASE PRICE
2.1 Purchase Price and Allocation
The purchase price to be paid by Buyer of the Acquired Business and
Purchased Assets shall be Thirteen Million Seven Hundred and Fifty
Thousand (USD 13,750,000) ("Purchase Price"). In addition the Buyer
shall assume liabilities as reflected in Exhibit D. The Purchase
Price shall be allocated among the Purchased Assets according to an
allocation audit to be conducted by Buyer's auditor KPMG.
2.2 Payment of the Purchase Price
The Purchase Price shall be paid as follows:
(a) Buyer shall pay USD 10,445,013 on the Closing Date by means of
a promissory in the form set forth in Schedule l hereto.
(b) Escrow Amount. Within six business days after the Closing
Date, Buyer shall pay a total amount of USD 1,400,000 to an
escrow account pursuant an Escrow Agreement substantially in
the form of Exhibit C.
(c) Employee holdback amount. Buyer shall withhold from the
Purchase Price the total amount of USD 1,904,988 (the
"Employee Holdback Amount"), which will be paid to the Seller,
with Interest (as defined below), in accordance with the
schedule set forth below provided, however, that in the event
any employee listed below does not accept employment with or
voluntarily leaves Buyer or as a result of Termination for
Cause (as defined below) prior to the date on which any one or
more of the following payments are due and payable to Seller,
then Buyer shall be entitled to deduct from the then-current
and all future payments due -to Seller under this Section that
portion of the Employee Holdback Amount ascribed to such
employee as set forth in the following schedule:
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First Installment Second Installment Third Installment
Employee Name Due Jan. 5, 1998 Due Jan. 5, 1999 Due Jan. 5, 2000
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ USD205,447 USD205,447 USD205,447
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▇▇▇▇ ▇▇▇▇▇▇ USD205,447 USD205,447 USD205,447
----------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇ USD205,447 USD205,447 USD205,447
----------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ USD0 USD25,506
----------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ USD0 USD15,093
----------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ USD0 USD15,093
----------------------------------------------------------------------------------------------
For the purposes of this Agreement the term Termination Cause
shall mean (a) a material breach of this Agreement, policy of
Buyer, or the violation of any law, rule or regulation
applicable to the Buyer's business, (b) any act of fraud,
dishonesty, deceit, or unethical behavior, or (c) any willful
destruction or misuse of Buyer's property.
For the purposes of this Section 2(e), the term Interest shall
mean interest calculated at an annual rate, over the period,
equal to the mean Prime lending rate for Chase Manhattan Bank
over the year, as reported in the Wall Street Journal.
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If terminated for reasons other than: (a) voluntarily by the
employee, or (b) by Buyer for Termination Cause the remaining
Employee Holdback Amount covering the specific employee in
question shall be paid out at the end of the notice period.
Buyer and Seller further acknowledge and agree that any and
all amounts paid to the foregoing employees, either as a
distribution from the Seller or in consideration of the sale
of all or any portion of their equity interest(s) in the
Seller to Industriinvestor ASA arising out of or in connection
with this Agreement shall be structured in a manner so that
the amounts corresponding to the employee's name in the
foregoing schedule are withheld from such payment(s) until
such time as the corresponding holdback payment(s) are made to
the Seller by the Buyer under this Section.
(d) Bank Guarantee. Buyer shall furnish to the Seller a bank
guarantee of the payment of the First., Second and Third
installment of the Employee Holdback Amount in substantially
the terms of Exhibit D or such other terms and with a
Norwegian bank that shall be mutually acceptable to Seller and
Buyer. Buyer shall bear the cost of such bank guarantee.
(e) Out of the amounts held back under Section 2(c) above, Buyer
shall be entitled to set-off the following amounts, on a pro
rata basis, against any claims that the Buyer may have against
Seller under this Agreement during the two year period
immediately following the date hereof:
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Employee Name
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ USD236,005
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▇▇▇▇ ▇▇▇▇▇▇ USD236,005
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▇▇▇▇▇ ▇▇▇▇ USD236,005
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ USD14,648
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ USD8,668
---------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ USD8,668
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3. CLOSING
The closing of the transactions provided for herein (the "Closing")
will take place at the offices of Seller on 30 December 1996 (the date
of the Closing being the "Closing Date").
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
Seller represents and warrants to and covenants with Buyer that:
4.1 Organization and Authority of Seller.
Seller is a corporation duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its incorporation,
with the corporate power and authority to enter into this Agreement
and to perform its obligations hereunder. Seller has the corporate
power and authority to own and lease its properties and to carry on
its business, including the Acquired Business, as now being conducted
and is duly qualified to do business in each jurisdiction in which the
nature of the Acquired Business requires it to be so qualified. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate actions on the part of Seller.
There are no pending voluntary
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or involuntary proceedings against Seller relating to bankruptcy,
insolvency, reorganization or liquidation. The Agreement has been duly
executed and delivered by Seller's signatory thereto and constitutes
the valid, binding and enforceable obligation of Seller.
4.2 Ability to Carry Out the Agreement.
Seller is not subject to or bound by any provision of:
(i) any law, statute, rule, regulation or judicial or
administrative decision,
(ii) any articles or certificate of incorporation or
by-laws,
(iii) any contract, mortgage, deed of trust, lease, note,
shareholders' agreement, bond, indenture, license,
permit, or
(iv) any judgment, order, writ, injunction or decree of
any court, governmental body, administrative agency
or arbitrator,
that would prevent, be violated by, or under which there would be any
default as a result of, the execution, delivery and performance by
Seller of this Agreement and the transactions contemplated hereby.
4.3 Financial Statements and Closing Date Statement.
(a) Exhibit E sets forth the true and complete copy of the
unaudited balance sheet of the Acquired Business as at 30.
September 1996 (the "Most Recent Balance Sheet"), and the
related statements of income of the Acquired Business as of
and for the period covered by the Most Recent Balance Sheet
(collectively, the "Financial Statements"). The Financial
Statements fully and fairly present the financial position of
the Acquired Business, for the periods or as of the dates
stated therein, and have been prepared in accordance with
Norwegian GAAP applied on a consistent basis, and do not fail
to state any material fact or conditions.
(b) Exhibit E sets forth a sheet that fully and fairly reflects an
accurate projection of the Purchased Assets and the Assumed
Liabilities on the Closing Date, subject to reasonable audit
adjustments due to changes in accounting principles, prepared
in accordance with Norwegian GAAP applied in a manner
consistent with Seller's standard accounting practices applied
throughout 1996, and which do not fail to state any material
fact or condition (the "Closing Date Statement").
4.4 Sufficiency of and Title to the Purchased Assets.
(a) The Purchased Assets constitute on the Closing Date all of the
assets used in or that are necessary to permit the operation
by Buyer of the Acquired Business in substantially the same
manner as the Acquired Business has heretofore been conducted.
(b) Seller is the sole and exclusive legal and equitable owner of,
and has good, marketable, and insurable title to, the
Purchased Assets and the Intellectual, Property (including,
without limitation, all Intellectual Property described in
Exhibit A hereto), free and clear of any encumbrances.
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4.5 Accounts Receivables.
Exhibit F sets forth a list of all Receivables of the Acquired
Business as of the Closing Date, including the amount and aging of
each such account receivable, each of which represents sales or
licenses actually made or services actually performed in the usual
course of the Acquired Business consistent with past practice. Since
the date of the Most Recent Balance Sheet, (i) no event has occurred
that would, under the practices of the Acquired Business in effect
when the Most Recent Balance Sheet was prepared, require a material
increase in the ratio of the reserve for uncollectible accounts
receivable of the Acquired Business, and (ii) there will be material
adverse change in the Receivables in terms of aging. The Receivables
are and will be valid and collectible and there is no contest, claim,
deductions or right of set-off with any third party of any such
account receivable.
4.6 Inventories.
Exhibit G sets forth a list of all Inventories of the Acquired
Business as of the Closing Date.
4.7 Fixed Assets.
Exhibit H sets forth a list of all Fixed Assets of the Acquired
Business as of the Closing Date. The Assets consist only of items in
good condition (except for normal wear and tear) and saleable or
usable in the ordinary course of business.
4.8 Litigation.
(a) There is no action, suit, proceeding or investigation pending
or, to the best of Seller's knowledge, threatened, against
Seller or with respect to any of its properties, at law, in
equity or otherwise, in any way relating to the Purchased
Assets or the Acquired Business nor is there any reasonable
basis for any such action, suit, proceeding or investigation.
(b) There are no judgments, orders or decrees entered against
which have, or will likely have, an adverse effect on the
Acquired Business or the Purchased Assets.
4.9 Compliance with Laws.
The Acquired Business is being conducted and has been conducted in
compliance in all material respects with all applicable laws and
regulations. Seller has not been notified by any governmental
authority within the past five (5) years that it is in violation of
any applicable law or regulation in respect of the activities of the
Acquired Business or with respect to any Purchased Asset.
4.10 Contracts.
(a) Exhibit G page 2 lists each Contract including a description
of each oral Contract outstanding as of the Closing Date to
which Seller is a party, or by which its respective properties
are bound, and which is material to the business, financial
condition or results of operation of the Acquired Business and
providing for the payments aggregating, or the provision of
goods or services having a value of, not less than $50,000.
(b) Seller has delivered to Buyer true and complete copies of each
Contract contained in Exhibit G.
(c) Each Contract is in full force and effect and is being
performed by all the parties thereto (including the Seller) in
accordance with its terms and is without any default by the
Seller
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or any failure by Seller to perform any material obligation
and, to the best of Seller's knowledge, by any other party
thereto, and Seller has not received any notice of default and
is not aware of the existence of any event, condition, action
or omission that could give rise to any default or failure to
perform. Seller has not made any material misrepresentation
in connection with any of the Contracts.
(d) The transactions contemplated hereby will not invalidate any
Contract.
(e) With respect to any intellectual property that is licensed to
Seller under any Contract, such intellectual property has been
licensed on an arms-length basis and can be used in the
Acquired Business as currently conducted in accordance with
the terms and conditions of such licenses.
4.11 Product and Service Warranties.
The only express warranties, other than those specified in the
Contracts set forth in Exhibit G page 2, written or oral, with respect
to the products or services sold by the Acquired Business and included
among the Purchased Assets or the Assumed Liabilities are as set forth
in Exhibit I.
4.12 Employee Benefits and Certain Employee Matters.
All employment of any terminated former employee of Seller whose work
was related to the activities of the Acquired Business has been
terminated in accordance with any applicable contractual terms and
applicable law, and Seller has no liability under any Contract or
applicable law toward any such terminated employee. The consummation
of the transactions contemplated hereby will not cause Seller or Buyer
to incur or suffer any liability relating to, or obligation to pay,
severance, termination or other payments to any Person.
4.13 Intellectual Property.
Seller represents and warrants,
(i) with respect to the Intellectual Property (including,
without limitation, each of the software and other
products listed in Exhibit A hereto), such
Intellectual Property can be used in the Acquired
Business as currently conducted free and clear of
restrictions, encumbrances and royalties (except for
those royalties set forth in Exhibit J) on such use,
including without limitation, any rights retained by
Seller;
(ii) as used in the conduct of the Acquired Business as
conducted in the past and as presently conducted,
none of the Intellectual Property has at any time in
the past infringed or misappropriated or otherwise
violated, or is likely to violate, directly or
indirectly, any intellectual property right of
another person, nor is the Seller otherwise in the
conduct of its business infringing upon the
intellectual property rights of any other party;
(iii) there is no intellectual property of another Person
which infringes or misappropriates the Intellectual
Property; and
(iv) all licenses and other agreements relating to the
Intellectual Property which might be inconsistent
with the terms of this Agreement have been terminated
on the Closing Date, or will have otherwise ceased to
apply on such date, at no cost to Buyer.
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4.14 Guarantees.
Exhibit K contains a list of all obligations of Seller with respect to
third party guarantees, indemnities, surety bonds, letters of credit
or letters pursuant to which Seller has made any undertaking to a
third party related in any way to the Acquired Business or the
Purchased Assets.
4.15 Absence of Undisclosed Liabilities.
To the best of Seller's knowledge, there are no liabilities relating
to the Acquired Business or the Purchased Assets, other than
liabilities disclosed in this Agreement, the Financial Statements, the
Closing Date Statement or contractual obligations related to the
performance of Contracts in accordance with their terms. All such
liabilities relate exclusively to the activities of the Acquired
Business as currently conducted.
4.16 Insurance.
Seller has at all times maintained insurance relating to the Acquired
Business and the Purchased Assets and covering property, fire,
casualty, liability, workmen's compensation, and all the other forms
of insurance customarily obtained by businesses in the same industry.
Such insurance: (i) is in full force and effect; (ii) is sufficient
for compliance in all material respects with all requirements of
applicable law and of any Contract included in the Purchased Assets;
(iii) is valid, outstanding, and enforceable; and (iv) insures against
risks of the kind customarily insured against and in amounts
customarily carried by businesses similarly situated and provides
adequate insurance coverage for the activities of the Acquired
Business. Exhibit L lists and describes all insurance policies
maintained, owned or held in connection with the Acquired Business.
Seller has received no notice of cancellation with respect to any item
listed in Exhibit L.
4.17 Environmental Matters.
There are no pending or, to the best of Seller's knowledge,
threatened, claims, consent orders, consent decrees, settlement
agreements, court or administrative orders, notices, complaints,
requests for information, or inquiries received by Seller with respect
to any alleged violation of, or potential liability under, any
environmental statute or regulation or common law related to
environmental matters in connection with the Acquired Business or any
of the Purchased Assets or related to any property utilized in the
Acquired Business;
4.18 Non-Competition Restrictions.
Neither Seller nor the Purchased Assets are bound by any Contract that
would restrict Buyer's ability to engage in any business activity
within the historic scope of the activities of the Acquired Business.
4.19 No Preferential Buyers.
There are no preferential buyer rights or rights of first refusal in
third parties with respect to any of the Purchased Assets other than
the rights of customers to purchase finished goods pursuant to
existing sales arrangements.
4.20 Leases.
With respect to those leases, both of personal property and real
property, and other commitments that are Assumed Liabilities, Seller
is in compliance in all respects with the terms and conditions of all
such leases and other commitments as of the Closing Date.
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4.21 Conduct of Business.
Since the date of the Most Recent Balance Sheet, Seller has not done
or agreed to do any of the following: (a) incur, assume, guarantee, or
become subject to, or surety on, any indebtedness or obligation
relating to any lending or borrowing or any other liability or
commitment in connection with the Acquired Business or related to the
Purchased Assets except current liabilities and commitments incurred
in the ordinary course of business and reflected in the Closing Date
Statement; (b) pay any obligation or liability in connection with the
Acquired Business or related to the Purchased Assets other than, in
the ordinary course of business, current liabilities reflected or
disclosed in the Most Recent Balance Sheet and current liabilities
incurred since the date of the Most Recent Balance Sheet and reflected
in the Closing Date Statement; (c) purchase or lease any real property
in connection with the Acquired Business; (d) transfer, mortgage,
pledge or subject to any encumbrance any of the Purchased Assets; (e)
enter into any transaction in connection with the Acquired Business or
related to the Purchased Assets other than in the ordinary course of
business; (f) increase the rate of regular or special compensation
payable to or to become payable by it to any of its officers,
employees, consultants, or agents in connection with the Acquired
Business over the rate being paid them as of the date of the Most
Recent Balance Sheet, other than normal merit increases or special
non-recurring compensation in connection with services related to the
transactions contemplated hereby, employee or consultant other than
pursuant to normal business practice, and general pay increases which
took place in October 1996 and are reflected in Exhibit B hereto; (g)
make any increase in any bonus, insurance, pension or employee benefit
plan payments or arrangements made to, for or with any officers or
employees in connection with the Acquired Business, except for the
general pay increases that took place in October 1996 and are
reflected in the Closing Statement; (h) introduce any new or
materially changed method of management, operation or accounting in
respect of the Acquired Business or any of the Purchased Assets, or
rights applicable thereto; (i) conduct the Acquired Business other
than in the ordinary course consistent with past practice, including,
without limitation, the production and sale, advertising and promotion
of products and inventory management; (j) submit any bid for a
Contract involving delivery of goods or services for a price equal to
or in excess of $50,000 that contemplates or is based upon a gross
profit margin of less than 25% or any bid for a Contract involving the
delivery of goods or services for a price less than $50,000 that
contemplates or is based upon a gross profit margin of less than 10%;
or (k) waive any right of material value in connection with the
Acquired Business or related to the Purchased Assets.
4.22 Accuracy of Information Furnished.
(a) There is no fact which could have a material adverse effect on
the Acquired Business which Seller has not prior to or on the
Closing Date disclosed to Buyer.
(b) For the purposes of determining the accuracy and completeness
of all representations and warranties herein, and all Exhibits
hereto, Seller has made due inquiry in order to inform itself
to the fullest reasonable extent with respect thereto.
4.23 Powers of Attorney.
Except for powers held by trademark and copyright agents and
attorneys, there are no outstanding powers of attorney specifically
relating to the Acquired Business or the Purchased Assets.
4.24 Fees and Expenses.
Seller shall pay all fees and expenses incurred by it in connection
with this Agreement and the transactions contemplated herein, except a
maximum of USD 125,000 paid by ETP to Industriinvestor ASA, or its
counsel, as reflected in Exhibit D.
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4.25 Non-compete.
Seller covenants that, until the third anniversary of the Closing
Date, it will not, for its own account or for the account of any other
person:
(i) be directly or indirectly engaged (through equity ownership or
otherwise) in any business which competes with the Acquired
Business;
(ii) disclose to any third party any confidential information
relating to the Acquired Business, and not already in the
public domain, except where legally obliged to make such
disclosure, or use such information in any way which may be
detrimental to the Acquired Business; or
(iii) assist any other person or entity in taking any of the
foregoing actions.
4.26 Best Efforts.
Seller shall cooperate with, and use its best efforts to assist in
obtaining (a) any and all consents required under Contracts,
Intellectual Property, statutory and regulatory legislation etc.
arising as a result of this Agreement and (b) the approval and
acceptance from the relevant Norwegian Regulatory Authority of the
noncompetition clauses in Sections 4.25 and 4.27 and Exhibit M in
relation to Seller, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Tore ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇.
4.27 Certain Employee Obligations.
The employees ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Tore ▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇ shall
accept employment with Buyer for a period of three years in accordance
with an employment agreement, in substantially the form set forth in
the Exhibit M hereto, to be signed between Buyer and each of the
employees on the Closing Date.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer represents and warrants to and covenants with Seller that:
5.1 Organization and Authority of Buyer.
Buyer is a corporation duly under incorporation, validly existing and
in good standing under the laws of Norway, with the corporate power
and authority to enter into this Agreement to which it is a signatory
and to perform its obligations hereunder.
5.2. Expenses.
Buyer shall pay all fees and expenses incurred by it in connection
with this Agreement and the transactions contemplated herein.
5.3 Disclosure.
Buyer has prior to the Closing Date reviewed the contracts set forth
in Exhibit N hereto.
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6. CERTAIN POST-CLOSING OBLIGATIONS OF SELLER AND BUYER
From and after the Closing, each party hereto shall fully cooperate
with and make available to the other party upon request, during normal
business hours, all books, records, information and employees (without
substantial disruption of employment) necessary and useful in
connection with the preparation of any tax return or government
report, any Tax inquiry, audit, investigation or any other matter
requiring any such books, records, information or employees for any
reasonable business purpose.
7. INDEMNIFICATION
7.1 Indemnification of Buyer.
Seller agrees to defend, indemnify and hold harmless Buyer
(a) against any and all losses, liabilities, fines, judgments,
claims, damages and expenses (including reasonable attorney's
fees actually incurred) incurred by Buyer by reason of, or
arising out of (i) any false, misleading or inaccurate
representation or warranty by the Seller contained in this
Agreement (including any Exhibit and Schedule hereto) or any
breach of any such representation or warranty or (ii) any
breach by the Seller of any provision of this Agreement.
(b) any and all liability of the Seller for Taxes arising in
respect of or by reference to any income, profits or gains
which were earned or accrued by the Acquired Business on or
before the Closing Date or in respect of a period ending on or
before the Closing Date.
8. MISCELLANEOUS
8.l Further Assurances.
From time to time after the Closing, Seller will execute and deliver,
or cause to be executed and delivered, such documents to Buyer as
Buyer shall reasonably request in order to ensure that Buyer owns all
right, title and interest in and to the Purchased Assets, and from
time to time after the Closing, Buyer will execute and deliver, or
cause to be executed and delivered, such documents to Seller as Seller
shall reasonably request in order to consummate more effectively the
transactions contemplated by this Agreement. Without limiting the
generality of the foregoing, in the event that amounts owed to one
party from its customers or others are incorrectly paid to the other
party, then the party receiving such payment shall promptly, and
without demand, pay over such amounts to the party to which such
amounts are owed.
8.2 Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if signed by the respective
person giving such notice or other communication (in the case of any
corporation the signature shall be by an authorized officer thereof)
upon receipt of: hand delivery; certified or registered mail, return
receipt requested; or telecopy transmission with confirmation of
receipt:
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If to Buyer, to:
LCC International AS
c/o LCC International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (703)
If to Seller, to:
European Technology Partner AS
Solheimveien 30
▇.▇. ▇▇▇ ▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇-▇▇-▇▇-▇▇-▇▇
Telecopy: ▇▇-▇▇-▇▇-▇▇-▇▇
Such names and addresses may be changed by such notice.
8.3 Entire Agreement.
This Agreement (including Exhibits attached hereto, all of which are a
part hereof, contains the entire understanding of the parties hereto
with respect to the subject matter contained herein, supersedes and
cancels all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written
respecting to such subject matter.
8.4 Waivers.
No waiver of any term, covenant or condition of this Agreement shall
be effective unless made in written instrument duly executed by or on
behalf of the party against whom such waiver is enforceable.
8.5 Amendments.
The parties may agree to the amendment or modification of this
Agreement by an agreement in writing executed in the same manner as
this Agreement.
8.6 Applicable Law.
This Agreement shall be governed by and construed in accordance with
Norwegian law.
8.7 Severability: Enforcement.
The invalidity of any portion hereof shall not affect the validity,
force or effect of the remaining portions hereof. If it is ever held
that any restriction hereunder is too broad to permit enforcement of
such restriction to its fullest extent, each party agrees that a court
of competent jurisdiction may enforce such restriction to the maximum
extent permitted by law, and each party hereby consents and agrees
that such scope may by judicially modified accordingly in any
proceeding brought to enforce such restriction.
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8.8 Arbitration.
Any dispute arising under this Agreement that is not resolved by
negotiation between the parties shall be submitted to arbitration in
accordance with the arbitration rules of the Oslo Chamber of Commerce.
Any such arbitration shall be held in Oslo, Norway. The award of the
arbitrators in any such proceeding shall be binding on the parties.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first set forth above in two - 2 - originals one to each of the parties.
Oslo, 30 December 1996
LCC International AS European Technology Partner AS
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------- ----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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EXHIBIT AND SCHEDULE LIST
Exhibit A Description of Certain Conveyed Assets
Exhibit B List of Employees
Exhibit C Form of Escrow Agreement between European Technology Partner
AS, LCC International AS, Haavind & ▇▇▇▇, Wikborg, Rein & Co.
and Industriinvestor AS
Exhibit D Form of Bank Guarantee to European Technology Partner AS of
installment payments of purchase price
Exhibit E Most Recent Balance Sheet and Closing Date Statement; Other
Short Term Debt 12/30/96
Exhibit F Receivables from Customers; Cash at Hand and Receivables
12/30/96
Exhibit G Inventories
Exhibit H Fixed Assets List
Exhibit I Product and Service Warranties
Exhibit J Royalties
Exhibit K Guarantees
Exhibit L Insurance Policies
Exhibit M Employment Agreements
Exhibit N List of Offers/Orders and Contracts
SCHEDULE 1 Form of Promissory Note of LCC International AS to European
Technology Partner AS in the amount of $10,445,013.
LCC International, Inc. agrees to furnish supplementally any of the
exhibits and schedules listed above to the Commission upon request.
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