FORM OF OPTION AGREEMENT Vishay S.A., a ______________, as Optionor and Vishay Precision Group, Inc., a Delaware corporation, as Optionee Dated as of _______, 2010
FORM OF OPTION AGREEMENT
Vishay S.A.,
a ______________,
a ______________,
as Optionor
and
Vishay Precision
Group, Inc.,
a Delaware corporation,
a Delaware corporation,
as Optionee
Dated as of _______,
2010
This Option Agreement (this “Agreement”) is made and entered into effective as of
___________, 2010, by and between Vishay S.A., as optionor, having its principal
executive offices at ________________________(“Optionor) and Vishay Precision Group, Inc., a Delaware
corporation, having its principal executive offices at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (“Optionee”). Optionor and Optionee each may be referred
to herein as a “Party” and collectively, as the “Parties”.
WHEREAS, the Board of Directors of Vishay Intertechnology, Inc., a
Delaware corporation and the parent of Optionor (“Vishay Intertechnology”), has determined that it is appropriate and
desirable to separate Optionee and Vishay Intertechnology into two
publicly-traded companies by separating Optionee from Vishay Intertechnology and
transferring to Optionee Vishay Intertechnology’s measurement group and foil
business (such separation, the “Separation”);
WHEREAS, in order to carry out, effect and consummate the Separation,
Optionee and Vishay Intertechnology have entered into that certain Master
Separation and Distribution Agreement, dated as of the date hereof (the
“Master Separation Agreement”);
WHEREAS, pursuant to the Master Separation Agreement, Vishay SA
transferred to Optionee all intellectual property (the “Intellectual Property”) necessary to operate the business of
manufacturing those strain gage products historically manufactured by Optionor
prior to the Separation (the “Business”);
WHEREAS, the assets, other than the
Intellectual Property, necessary to operate the Business and set forth on
Exhibit A hereto constitute Excluded Assets (as such
term is defined in the Master Separation Agreement) under the Master Separation
Agreement; and
WHEREAS, the business arrangements
among the parties include the grant, by Optionor to Optionee, of an option to
purchase all of Optionor’s right, title and interest in and to the Assets from
Optionor in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, agree as follows:
1. Definitions. For purposes of this Agreement, the
following terms shall have the meanings specified in this Section 1:
1.1 “Action” means any claim, demand, action, suit,
countersuit, arbitration, inquiry, proceeding or investigation by or before any
Governmental Authority and shall include any negotiations in settlement of or in
lieu of an Action.
1.2 “Affiliate” means, as applied to any Person, any other
Person that, directly or indirectly, controls, is controlled by, or is under
common control with that Person as of the date on which or at any time during
the period for when such determination is being made. For purposes of this
definition, “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through
the ownership of voting securities or other interests, by contract or otherwise,
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.
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1.3 “Applicable Law” means any applicable law, statute, rule or
regulation of any Governmental Authority, or any outstanding order, judgment,
injunction, ruling or decree by any Governmental Authority.
1.4 “Business Day” means any day other than a Saturday, Sunday
or a day on which commercial banks are authorized or required to close in New
York, New York or in Philadelphia, Pennsylvania.
1.5 “Confidential Information” means all proprietary, design or operational
information, data or material including, without limitation: (a) specifications,
ideas and concepts for goods and services; (b) manufacturing specifications and
procedures; (c) design drawings and models; (d) materials and material
specifications; (e) quality assurance policies, procedures and specifications;
(f) customer, client, manufacturer and supplier information; (g) computer
software and derivatives thereof relating to design development or manufacture
of goods; (h) training materials and information; (i) inventions, devices, new
developments, methods and processes, whether patentable or unpatentable and
whether or not reduced to practice; (j) all other know-how, methodology,
procedures, techniques and Trade Secrets; (k) proprietary earnings reports and
forecasts; (l) proprietary macro-economic reports and forecasts; (m) proprietary
marketing, advertising and business plans, objectives and strategies; (n)
proprietary general market evaluations and surveys; (o) proprietary financing
and credit-related information; (p) other copyrightable or patented works; (q)
the terms of this Agreement; and (r) all similar and related information in
whatever form; in each case, of one party which has been disclosed by Optionor
or members of its Group on the one hand, or Optionee or members of its Group, on
the other hand, in written, oral (including by recording), electronic, or visual
form to, or otherwise has come into the possession of, the other Group.
1.6 “Encumbrance” means, with respect to any asset, mortgages,
liens, hypothecations, pledges, charges, security interests, easements,
encroachments, rights to acquire, use restrictions, transfer restrictions or
other encumbrances of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under Applicable Law.
1.7 “Governmental Authority” means any U.S. or non-U.S. federal, state,
local, foreign or international court, arbitration or mediation tribunal,
government, department, commission, board, bureau, agency, official or other
regulatory, administrative or governmental authority.
1.8 “Group” means, with respect to any Person, each
Subsidiary of such Person and each other Person that is controlled directly or
indirectly by such Person.
1.9 “Person” (whether or not initially capitalized) means
any corporation, limited liability company, partnership, firm, joint venture,
entity, natural person, trust, estate, unincorporated organization, association,
enterprise, government or political subdivision thereof, or Governmental
Authority.
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1.10 “Subsidiary” of any Person means a corporation or other
organization whether incorporated or unincorporated of which at least a majority
of the securities or interests having by the terms thereof ordinary voting power
to elect at least a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided, however, that no Person that is not directly or
indirectly wholly-owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control, that Person.
1.11 “Wholly-owned Subsidiary” of a Person means a Subsidiary of that
Person substantially all of whose voting securities and outstanding equity
interest are owned either directly or indirectly by such Person or one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries.
1.12 The terms “herein”, “hereof”, “hereunder” and like terms, unless otherwise specified,
shall be deemed to refer to this Agreement in its entirety and shall not be
limited to any particular section or provision hereof. The term “including” as used herein shall be deemed to mean
“including, but not limited to.” The term “days” shall refer to calendar days unless
specified otherwise. References herein to “Sections” and “Exhibits” shall be deemed to mean Sections of and
Exhibits to this Agreement unless otherwise specified.
2. Option.
2.1 Grant of Option. Upon the terms of this Agreement, Optionor
hereby grants to Optionee an irrevocable option (the “Option”) to purchase the Assets in accordance with
the terms of this Agreement at the purchase price (the “Purchase Price”) determined as provided for herein.
2.2 Purchase Price.
2.2.1 In full and complete consideration and payment of the purchase and sale
of the Assets upon exercise of the Option as provided herein, Optionee shall pay
(or cause to be paid) to Optionor, and Optionor shall accept from Optionee, at
the Closing, the Purchase Price.
2.2.2 No later than fifteen (15) Business Days following Optionor’s receipt of an Option Notice (as
defined below) by Optionee, Optionor shall determine the Purchase Price in
accordance with the terms set forth on Exhibit B attached hereto. As soon as reasonably
practicable, but in no event later than three (3) Business Days after making
such determination, Optionor shall prepare and deliver to Optionee a calculation
of the Purchase Price, together with reasonably detailed supporting information
(the “Purchase Price Calculation”).
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2.2.3 Optionor will
provide Optionee and its accountants with access to the records and employees of
Optionor, to the extent reasonably related to the Purchase Price Calculation or
the resolution of any dispute with respect thereto. Within five (5) Business
Days after Optionee’s receipt of the Purchase Price Calculation, Optionee shall
notify Optionor in writing as to whether Optionee agrees or disagrees
with the Purchase Price Calculation, which notice, in the case of a
disagreement, shall set forth in reasonable detail the particulars of such
disagreement. In the event that Optionee does not provide a notice of
disagreement within such five 5 Business Day period, then Optionee shall be
deemed to have accepted the calculations and the amounts set forth in the
Purchase Price Calculation delivered by Optionor, which shall be final, binding
and conclusive for all purposes hereunder. If any notice of disagreement is
timely provided in accordance with this Section
2.2.3, Optionor and Optionee shall each use commercially reasonable efforts
for a period of ten (10) Business Days thereafter (or such longer period as they
may mutually agree) to resolve any disagreements with respect to the Purchase
Price Calculation. If, at the end of such period, the Parties are unable to
resolve any disagreements as to items in the Purchase Price Calculation, then
the Parties shall engage KPMG LLP (the “Auditor”) to resolve any
remaining disagreements. The Auditor shall be charged with determining as
promptly as practicable, but in any event within thirty (30) days after the date
on which such dispute is referred to the Auditor, whether the Purchase Price
Calculation was prepared in accordance with this Agreement and whether and to
what extent the calculation adjustment. The fees and expenses of the Auditor
shall be shared by Optionor and Optionee in inverse proportion to the relative
amounts of the disputed amounts determined in favor of Optionor and Optionee,
respectively. The determination of the Auditor shall be final, binding
and conclusive for all purposes hereunder.
2.3 Option Period. The Option shall be exercisable at
Optionee’s sole election during the period (subject to earlier termination, and
to extension, as provided herein, the “Option Period”) beginning on the date hereof and ending at
midnight, New York City time, on the five (5) year anniversary of the date
hereof; provided, however, that, in the event of the due
termination by Optionee of the License Agreement in accordance with Section
K.2(a) thereof upon the bankruptcy of Optionor (a “VPG License Termination”), the Option Period shall terminate on the
earlier of (i) the five (5) year anniversary of the date hereof and (ii) the
effective date of such VPG License Termination as set forth in the written
notice of termination given by Optionee under the License Agreement and after
expiration, without cure, of all applicable cure periods, or if such termination
is the subject of a dispute, the date of the final settlement or adjudication
confirming that Optionee’s termination was duly effected. If Optionee does not
exercise the Option in accordance with the terms and conditions of this
Agreement before the termination of the Option Period, the Option shall expire.
2.4 Exercise of Option; Option
Notice. Optionee may
exercise the Option at any time by giving written notice to Optionor, together
with an executed counterpart signature page to the Purchase Agreement (defined
below), as provided herein (the “Option Notice”) during the Option Period. The date on which
Optionee shall have provided an Option Notice to Optionor is referred to herein
as the “Option Exercise Date.” The Option Notice shall specify a date for
the closing of the exercise of the Option (the “Closing”), which specified date shall be (i) in the
event Optionee intends in good faith to acquire the Assets as an operating
business and going concern, being operated substantially in the manner as the
Business has been historically operated by Optionor, no earlier than the date
that is one (1) year from the Option Exercise Date, or (ii) in the event
Optionee does not intend in good faith to acquire the Assets substantially as an
operating business and going concern, being operated substantially in the manner
as the Business has been historically operated by Optionor, no earlier than the
date that is 180 days from the Option Exercise Date. Notwithstanding the
foregoing, the parties may at any time
after the giving of an Option Notice, mutually agree to accelerate or delay the
date for the Closing of the exercise of the Option. The date on which the
Closing actually occurs is sometimes referred to herein as the “Closing Date.”
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2.5 Purchase Agreement. Within thirty (30) days of the Option
Exercise Date, the Parties shall enter into an asset purchase agreement
substantially in the form attached hereto as Exhibit C, as may be modified to the extent necessary
in order to comply with Applicable Law (the “Purchase Agreement”).
3. Closing. At the Closing, Optionor shall sell, assign,
transfer, convey and deliver to Optionee, and Optionee shall purchase and
receive from Optionor, all of Optionor’s right, title and interest in and to the
Assets in accordance with the terms of the Purchase Agreement. In full and
complete consideration of the purchase of the Assets, Optionee shall cause the
Purchase Price to be paid to Optionor.
4. Representations and
Warranties.
4.1 Optionor hereby represents and warrants to Optionee as follows:
4.1.1 Organization. Optionor is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all requisite power and authority to own, lease and operate
its properties and assets and to carry on the Business as it is now being
conducted.
4.1.2 Authorization; Binding
Agreement. Optionor has
the requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of Optionor, and no
consent, approval or (other than to execute and deliver the documents and
instruments contemplated by Section 3.2) other action on the part of Optionor is or
will be necessary to authorize the execution and delivery of this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by, and constitutes the legal, valid and
binding agreement of, Optionor, enforceable against it in accordance with its
terms.
4.1.3 No Conflict; No Consents. The execution, delivery and performance of
this Agreement, and the consummation of the transactions contemplated hereby and
thereby, do not and will not (a) violate any provisions of any of Optionor’s
organizational documents or (b) conflict with, result in a violation of,
constitute a default (with or without notice or lapse of time) under, or give
rise to a right of termination, amendment, cancellation or acceleration of any
obligation contained in, or the loss of any benefit under, any term, condition
or provision of any loan or credit agreement, note, bond, mortgage, indenture or
any other material agreement to which Optionor is a party or by which any
properties or assets of Optionor are bound, or result in the creation or
imposition of any Encumbrance, or (c) violate any Applicable Law. No consent of
any third party is or will be required for Optionor to sell and transfer the
Assets to Optionee at Closing as contemplated hereby.
4.2 Optionee hereby represents and warrants to Optionor as follows:
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4.2.1 Organization. Optionee is a limited liability company duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all requisite power and authority to own,
lease and operate its properties and assets and to carry on its business as it
is now being conducted.
4.2.2 Authorization; Binding
Agreement. Optionee has
the requisite power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of Optionee, and no
consent, approval or (other than to execute and deliver the documents and
instruments contemplated by Section 3.3) other action on the part of Optionee is or
will be necessary to authorize the execution and delivery of this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by, and constitutes the legal, valid and
binding agreement of, Optionee, enforceable against it in accordance with its
terms.
4.2.3 No Conflict. The execution, delivery and performance of
this Agreement by Optionee, and the consummation of the transactions
contemplated hereby, do not and will not (a) violate any provisions of any of
Optionee’s organizational documents or (b) conflict with, result in a violation
of, constitute a default (with or without notice or lapse of time) under, or
give rise to a right of termination, amendment, cancellation or acceleration of
any obligation contained in, or the loss of any benefit under, any term,
condition or provision of any loan or credit agreement, note, bond, mortgage,
indenture or any other material agreement to which Optionee is a party or by
which any properties or assets of Optionee are bound, or result in the creation
or imposition of any Encumbrance, to the extent such would impair Optionee’s
ability to consummate the transactions contemplated by this Agreement, or (c)
violate any Applicable Law.
5. Covenants.
5.1 Conduct of the Business Before the Closing
Date. Optionor agrees
that, except as provided in this Agreement, or as consented to or approved in
writing by Optionee, during the period commencing on the date hereof and ending
on the Closing Date, if any:
5.1.1 Optionor shall operate the Business only in the ordinary course of
business consistent with past practice or existing business plans disclosed in
writing to Optionee as of the date hereof.
5.1.2 Optionor shall:
(a) use commercially reasonable efforts to preserve intact its business
organization and the goodwill of the Business and maintain satisfactory
relationships with suppliers, customers and others having business relationships
with the Business;
(b) maintain the Assets in good operating condition and repair in all
material respects (ordinary wear and tear excepted), and maintain casualty
insurance with respect to the Assets
reasonably comparable to that in effect on the date of this Agreement, with
Optionee as a named insured;
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(c) maintain its books, accounts and records in accordance with GAAP and as
are kept on the date of this Agreement;
(d) comply in all material respects with all Applicable Laws and pay all
applicable taxes;
(e) promptly inform Optionee in writing (i) of any material deviation from
the representations and warranties set forth herein or any non-immaterial breach
of any covenant hereunder by Optionor; or (ii) if Optionor becomes aware of any
material developments with respect to the Business that could reasonably affect
the decision of Optionee to exercise the Option; and
(f) solely for purposes reasonably related to the determination of Optionee
to exercise the Option, afford Optionee reasonable access during normal business
hours to its officers, properties, books and records relating to the Assets or
the Business.
5.1.3 Optionor will not:
(a) subject any Asset to an Encumbrance or dispose of, lease, license or
transfer any Asset, other than (i) sales of inventory in the ordinary course of
business or obsolete, (ii) worn out equipment sold or otherwise disposed of in a
manner consistent with past practice, and (iii) Encumbrances that will be
released as of right at Closing;
(b) agree, whether in writing or otherwise, to do any of the foregoing.
6. Force Majeure. The Parties shall not be liable for the
failure or delay in performing any obligation under this Agreement if and to the
extent such failure or delay is due to (i) acts of God; (ii) weather, fire or
explosion; (iii) war, invasion, riot or other civil unrest; (iv) governmental
laws, orders, restrictions, actions, embargoes or blockages; (v) action by any
regulatory authority which prohibits the manufacture, sale of the Assets, except
to the extent due to Optionor’s breach of its obligations hereunder; (vi)
regional, national or foreign emergency; (vii) injunction, strikes, lockouts,
labor trouble or other industrial disturbances; (viii) shortage of adequate
fuel, power, materials, or transportation facilities; or (ix) any other event
which is beyond the reasonable control of the affected Party; provided, however, that the Party affected shall promptly
notify the other Party of the force majeure condition and shall exert its
reasonable commercial efforts to eliminate, cure or overcome any such causes and
to resume performance of its obligations as soon as possible.
7. Confidentiality.
7.1 Confidentiality. Each Party acknowledges that Confidential
Information of the other Party and/or its Affiliates from time to time may be
furnished to the first Party and/or its Affiliates in connection with the
exercise by the Parties of their respective rights and the fulfillment of their
respective obligations under this Agreement. Each Party acknowledges that its access to the
Confidential Information of the other Party is being granted for the purpose of
exercising and protecting the first Party’s rights and interests under this
Agreement (the “Permitted Purposes”) and for no other purposes.
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7.2 Permitted Disclosure. Each Party agrees that its use of the
Confidential Information of the other Party will be solely for the Permitted
Purposes and that such information will be kept confidential and disclosed to no
other Person; provided, that each Party may disclose, or may permit
disclosure of, Confidential Information (i) to its respective auditors,
attorneys, financial advisors, bankers and other appropriate consultants and
advisors who have a need to know such Confidential Information in furtherance of
effecting the Permitted Purposes, who have been informed of the confidential
nature of such information and who have been directed, and who shall have
agreed, to treat such information confidentially and to use such information
only for the Permitted Purposes and in respect of whose failure to comply with
such obligations, such Party will be responsible, (ii) if such Party or any of
the members of such Party’s respective Group is compelled to disclose any such
information by judicial or administrative process or, in the opinion of
independent legal counsel, by other requirements of Applicable Law, (iii) if any
such information is or becomes generally available to the public other than as a
result of a disclosure in violation of this Agreement or (iv) if such
information was or becomes available to either Party or any member of its
respective Group on a non-confidential basis and from a source (other than the
other Party or any Affiliate, director, officer, employee, agent, consultant,
advisor and other representative of such Party) that is not known after actual
inquiry to be bound by a confidentiality obligation. Notwithstanding the
foregoing, in the event that any demand or request for disclosure of
Confidential Information is made pursuant to clause (ii) above, the first Party
shall promptly notify the other of the existence of such request or demand and
shall provide the other a reasonable opportunity to seek an appropriate
confidentiality agreement, protective order or other remedy at the reasonable
cost and expense of the disclosing party and which both Parties will cooperate
in obtaining. In the event that such appropriate protective order or other
remedy is not obtained, the Party whose Confidential Information is required to
be disclosed shall, or shall cause to be, furnished, only that portion of the
Confidential Information that is legally required to be disclosed.
7.3 Standard of Care. Notwithstanding anything herein to the
contrary, each Party and the members of its respective Group, shall be deemed to
have satisfied their obligations hereunder with respect to Confidential
Information if they exercise the same degree of care (but no less than a
reasonable degree of care) as they take to preserve confidentiality for their
own similar information.
7.4 General. Each Party shall be entitled to obtain,
without posting any bond and without proof of actual damages, a restraining
order, injunction, specific performance or other form of equitable or
extraordinary relief for breach of the provisions of this Section 7 by the other Party, in addition to all other
remedies available at law or in equity. The Parties further agree that no
failure or delay by a Party in exercising any right, power or privilege under
this Section 7 will operate as a waiver thereof, nor will
any single or partial exercise preclude any other or further exercise of any
right, power or privilege.
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7.5 Each Party shall be entitled, from time to time, to receive from the
other Party reasonable assurances and verification of compliance with the
provisions of this Section 7.
7.6 The provisions of this Section 7 shall survive any termination or expiration
of this Agreement, in whole or in part, or the expiration or termination of the
Option Period.
8. Dispute Resolution.
8.1 Agreement to Resolve
Disputes. The procedures
for discussion, negotiation and dispute resolution set forth in this
Section 8 shall apply to all disputes, controversies or
claims (whether sounding in contract, tort or otherwise) that may arise out of
or relate to or arise under or in connection with this Agreement or the
transactions contemplated hereby (including all actions taken in furtherance of
the transactions contemplated hereby on or prior to the date hereof), or the
commercial or economic relationship of the parties relating hereto or thereto,
between or among any member of one Party’s Group on the one hand and the other
Party’s Group on the other hand. Each party agrees on behalf of itself and each
member of its respective Group that the procedures set forth in Sections 7.4, 8 and 9.13 shall be the sole and exclusive remedy in
connection with any dispute, controversy or claim relating to any of the
foregoing matters and irrevocably waives any right to commence any action in or
before any Governmental Authority, except as otherwise required by Applicable
Law.
8.2 Dispute Resolution;
Mediation.
8.2.1 Either Party may commence the dispute resolution process of this
Section 8.2 by giving the other party written notice (a
“Dispute Notice”) of any controversy, claim or dispute of
whatever nature arising out of or relating to or in connection with this
Agreement or the breach, termination, enforceability or validity thereof (a
“Dispute”) which has not been resolved in the normal
course of business. The parties shall attempt in good faith to resolve any
Dispute by negotiation between executives of each Party (“Senior Party Representatives”) who have authority to settle the Dispute
and, unless discussions between the Parties are already at a senior management
level, who are at a higher level of management than the Persons who have direct
responsibility for the administration of this Agreement. Within fifteen (15)
days after delivery of the Dispute Notice, the receiving Party shall submit to
the other a written response (the “Response”). The Dispute Notice and the Response shall
include (i) a statement setting forth the position of the Party giving such
notice and a summary of arguments supporting such position and (ii) the name and
title of such Party’s Senior Party Representative and any other Persons who will
accompany the Senior Party Representative at the meeting at which the Parties
will attempt to settle the Dispute. Within thirty (30) days after the delivery
of the Dispute Notice, the Senior Party Representatives of both Parties shall
meet at a mutually acceptable time and place, and thereafter as often as they
reasonably deem necessary, to attempt to resolve the Dispute. The Parties shall
cooperate in good faith with respect to any reasonable requests for exchanges of
Information regarding the Dispute or a Response thereto.
8.2.2 If the Dispute has not been resolved within sixty (60) days after
delivery of the Dispute Notice, or if the Parties fail to meet within thirty
(30) days after delivery of the Dispute Notice as hereinabove provided, the
Parties shall make a good faith attempt to settle the Dispute by mediation
pursuant to the provisions of this Section 8.2 before resorting to arbitration contemplated
by Section 8.3 or any other dispute resolution procedure
that may be agreed by the
Parties.
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8.2.3 All negotiations, conferences and discussions pursuant to this
Section 8.2 shall be confidential and shall be treated as
compromise and settlement negotiations. Nothing said or disclosed, nor any
document produced, in the course of such negotiations, conferences and
discussions that is not otherwise independently discoverable shall be offered or
received as evidence or used for impeachment or for any other purpose in any
current or future arbitration.
8.2.4 Unless the Parties agree otherwise, the mediation shall be conducted in
accordance with the CPR Institute for Dispute Resolution Model Procedure for
Mediation of Business Disputes in effect on the date of this Agreement by a
mediator mutually selected by the Parties.
8.2.5 Within thirty (30) days after the mediator has been selected as provided
above, both Parties and their respective attorneys shall meet with the mediator
for one (1) mediation session, it being agreed that each Party representative
attending such mediation session shall be a Senior Party Representative with
authority to settle the Dispute. If the Dispute cannot be settled at such
mediation session or at any mutually agreed continuation thereof, either Party
may give the other and the mediator a written notice declaring the mediation
process at an end.
8.2.6 Costs of the mediation shall be borne equally by the parties involved in
the matter, except that each Party shall be responsible for its own expenses.
8.2.7 Any Dispute regarding the following matters is not required to be
negotiated or mediated prior to seeking relief from an arbitrator or, if
applicable, from a court pursuant to Section 9.13: (i) breach of any obligation of
confidentiality or waiver of privilege; and (ii) any other claim where interim
relief is sought to prevent serious and irreparable injury to one of the
Parties. However, the parties to the Dispute shall make a good faith effort to
negotiate and mediate such Dispute, according to the above procedures, while
such arbitration is pending.
8.3 Arbitration.
8.3.1 Subject to Section 8.3.2, if for any reason a Dispute is not resolved
within one hundred eighty (180) days from delivery of the Dispute Notice in
accordance with the dispute resolution process described in Section 8.2, the Parties agree that such Dispute shall be
settled by binding arbitration before a single arbitrator under the auspices of
the American Arbitration Association (“AAA”) in Philadelphia, Pennsylvania pursuant to
the Commercial Rules of the AAA. The arbitrator selected to resolve the Dispute
shall be bound exclusively by the laws of the State of New York without regard
to its choice of law rules. Any decisions of award of the arbitrator will be
final and binding upon the parties and may be entered as a judgment by the parties. Any rights to
appeal or review such award by any court or tribunal are hereby waived to the
extent permitted by Applicable Law.
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8.3.2 Costs of the arbitration shall be borne equally by the parties involved
in the matter, except that each Party shall be responsible for its own expenses,
except as otherwise determined by the arbitrator.
8.3.3 The Parties agree to comply and cause the members of their applicable
Group to comply with any award made in any arbitration proceeding pursuant to
this Section 8.3, and agree to enforcement of or entry of
judgment upon such award in any court of competent jurisdiction, including any
federal or state court located in Philadelphia, Pennsylvania or the City of New
York, Borough of Manhattan. The arbitrator shall be entitled to award any remedy
in such proceedings, including monetary damages, specific performance and all
other forms of legal and equitable relief; provided, however, that the arbitrator shall not be entitled to
award punitive, exemplary, treble or any other form of non-compensatory monetary
damages.
8.3.4 Continuity of Service and
Performance. Unless
otherwise agreed in writing, the Parties will continue to provide service and
honor all other commitments under this Agreement during the course of dispute
resolution pursuant to the provisions of this Section 8.3 with respect to all matters not subject to
such Dispute.
8.4 Limitation of Liability. The provisions of this Section 8 and Section 9.13 shall be the Parties’ sole recourse for any
breach hereof.
9. Miscellaneous.
9.1 Assignment. This Agreement and the rights and
obligations of a Party hereunder shall be assignable or delegable, in whole or
in part, (i) by Optionor without the consent of Optionee, to a Wholly-Owned
Subsidiary of Optionor that succeeds to the conduct of the Business; (ii) by
Optionee without the consent of Optionor, to a Wholly-Owned Subsidiary of
Optionee; or (iii) by either Party, to any Person who is not a Wholly-Owned
Subsidiary of a Party only with the prior written consent of the other Party;
provided, however, that no such assignment shall relieve the
assigning Party of liability for its obligations hereunder. The following
actions shall not be deemed an assignment of this Agreement: (1) assignment or
transfer of the stock of a Party, including by way of a merger, consolidation,
or other form of reorganization in which outstanding shares of a Party are
exchanged for securities, or (2) any transaction effected primarily for the
purpose of (A) changing a Party’s state of incorporation or (B) reorganizing a
Party into a holding company structure such that, as a result of any such
transaction, such Party becomes a Wholly-Owned Subsidiary of a holding company
owned by the holders of such Party’s securities immediately prior to such
transaction. Any attempted assignment other than as provided herein shall be
void. The provisions of this Agreement shall be binding upon, and shall inure to
the benefit of, the successors and permitted assigns of the
Parties.
12
9.2
Waiver of jury
trial. Each of the Parties hereby waives to the fullest extent permitted
by Applicable Law any right it may have to a trial by jury with respect to any
court proceeding directly or indirectly arising out of and permitted under or in
connection with this Agreement or the transactions contemplated hereby. Each of the Parties hereby (a) certifies that
no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that it
has been induced to enter into this agreement and the transactions contemplated
by this agreement, as applicable, by, among other things, the mutual waivers and
certifications in this Section
9.2.
9.3
Entire
Agreement. This Agreement and the Exhibits hereto constitute the
entire agreement between the Parties with respect to the subject matter hereof
and thereof and supersede all previous agreements, negotiations, discussions,
understandings, writings, commitments and conversations between the Parties with
respect to such subject matter. No agreements or understandings exist between
the Parties other than those set forth or referred to herein or therein. If any
provision of this Agreement or the application thereof to any Party or
circumstance shall be declared void, illegal or unenforceable, the remainder of
this Agreement shall be valid and enforceable to the extent permitted by
Applicable Law. In such event, the Parties shall use their best efforts to
replace the invalid or unenforceable provision with a provision that, to the
extent permitted by Applicable Law, achieves the purposes intended under the
invalid or unenforceable provision.
9.4
Governing Law. This Agreement and the legal relations
between the parties shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflict of laws rules
thereof to the extent such rules would require the application of the law of
another jurisdiction.
9.5 Consent to
Jurisdiction. Subject to the
provisions of Article
VIII, each of the Parties irrevocably submits to the jurisdiction of the
federal and state courts located in Philadelphia, Pennsylvania and the City of
New York, Borough of Manhattan for the purposes of any suit, action or other
proceeding to compel arbitration, for the enforcement of any arbitration award
or for specific performance or other equitable relief pursuant to Sections
9.13 and 7.4. Each of the
parties further agrees that service of process, summons or other document by
U.S. registered mail to such parties address as provided in Section
9.7 shall be effective service of process for any action, suit or other
proceeding with respect to any matters for which it has submitted to
jurisdiction pursuant to this Section
9.5. Each of the parties irrevocably waives any objection to venue in the
federal and state courts located in Philadelphia, Pennsylvania and the City of
New York, Borough of Manhattan of any action, suit or proceeding arising out of
this Agreement or the transactions contemplated hereby for which it has
submitted to jurisdiction pursuant to this Section
9.5, and waives any claim that any such action, suit or proceeding brought
in any such court has been brought in an inconvenient forum.
9.6 Third Party Beneficiaries. Except as expressly provided herein, this
Agreement is not intended to, and does not, provide or create any rights or
benefits of any Person other than the parties hereto.
9.7 Notices. All notices, demands and other
communications required to be given to a Party hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered, sent by a
nationally recognized overnight courier, transmitted by facsimile, or mailed by
registered or certified mail (postage prepaid, return receipt requested) to such
Party at the relevant street address or facsimile number set forth below (or at
such other street address or facsimile number as such Party may designate from
time to time by written notice in accordance with this provision):
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| If to Optionor, to: | |
| Vishay S.A. | |
| c/o Vishay Intertechnology, Inc. | |
| ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ | |
| Attention: ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Financial Officer | |
| Telephone: ▇▇▇-▇▇▇-▇▇▇▇ | |
| Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ | |
| with a copy to: | |
| ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP | |
| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ | |
| ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ | |
| Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. | |
| Telephone: ▇▇▇-▇▇▇-▇▇▇▇ | |
| Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ | |
| If to Optionee, to: | |
| Vishay Precision Group, Inc. | |
| ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ | |
| Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer | |
| Telephone: (▇▇▇)-▇▇▇-▇▇▇▇ | |
| Facsimile: (▇▇▇)-▇▇▇-▇▇▇▇ | |
| with a copy to: | |
| ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP | |
| 3000 Two ▇▇▇▇▇ Square | |
| Eighteenth and Arch Streets | |
| Philadelphia, Pennsylvania 19103-2799 | |
| Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. | |
| Telephone: ▇▇▇-▇▇▇-▇▇▇▇ | |
| Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ |
Any notice, demand or
other communication hereunder shall be deemed given upon the first to occur of:
(i) the fifth (5th) day after deposit thereof, postage prepaid
and addressed correctly, in a receptacle under the control of the United States
Postal Service; (ii) transmittal by facsimile transmission to a receiver or
other device under the control of the party to whom notice is being given; (iii)
actual delivery to or receipt by the party to whom notice is being given or an
employee or agent thereof; or (iv) one (1) day after delivery to an overnight
carrier.
14
9.8 Headings. The headings contained herein are included
for convenience of reference only and do not constitute a part of this
Agreement.
9.9 Counterparts. This Agreement may be executed in one or
more counterparts, each of which when so executed and delivered or transmitted
by facsimile, e-mail or other electronic means, shall be deemed to be an
original and all of which taken together shall constitute but one and the same
instrument. A facsimile or electronic signature is deemed an original signature
for all purposes under this Agreement.
9.10 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination, the Parties shall
negotiate in good faith in an effort to agree upon such a suitable and equitable
provision to effect the original intent of the Parties.
9.11 Waiver of Default.
9.11.1 Any term or provision of this Agreement may be waived, or the time for
its performance may be extended, by the party or the parties entitled to the
benefit thereof. Any such waiver shall be validly and sufficiently given for the
purposes of this Agreement if, as
to any party, it is in writing signed by an authorized representative of such
party.
9.11.2 Waiver by any party of any default by the other party of any provision of
this Agreement shall not be construed to be a waiver by the waiving party of any
subsequent or other default, nor shall it in any way affect the validity of this
Agreement or any party hereof or prejudice the rights of the other party
thereafter to enforce each and ever such provision. No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
9.12 Amendments. No provisions of this Agreement shall be
deemed amended, modified or supplemented by any Party, unless such amendment,
supplement or modification is in writing and signed by the authorized
representative of the Party against whom it is sought to enforce such amendment,
supplement or modification.
15
9.13 Specific Performance. The Parties agree that the remedy at law for
any breach of this Agreement may be inadequate, and that, as between Optionor
and Optionee, any Party by whom this Agreement is enforceable shall be entitled
to, without posting any bond and without proof of actual damages, seek
temporary, preliminary or permanent injunctive or other equitable relief with
respect to the specific enforcement or performance of this Agreement. Such Party
may, in its sole discretion, apply to a court of competent jurisdiction for such
injunctive or other equitable relief as such court may deem just and proper in
order to enforce this Agreement as between Optionor and Optionee, or the members
of their respective Groups, or prevent any violation hereof, and, to the extent
permitted by Applicable Law, as between Optionor and Optionee, each Party waives
any objection to the imposition of such relief.
[SIGNATURE PAGE FOLLOWS]
16
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective duly authorized representatives as of the date first written
above.
| VISHAY S.A. | |||
| By: | |||
| Name: | |||
| Title: | |||
| VISHAY PRECISION GROUP, INC. | |||
| By: | |||
| Name: | |||
| Title: | |||
Exhibit A
Assets
| PONT COMPARAISON ESI 263 |
| MULTIMETRE HP3456A + RACK |
| PONT DE MESURE ESI 263 |
| ETUVE LAB 80 |
| ENS.NETTOYAGE ULTRASONS SFM 19 |
| ETUVE LAB 80 MAXI 200[ |
| MULTIMETRE PROGRAM.5003 |
| CONDITIONNEMENT JAUGES |
| CONTROLE JAUGES TEFAL |
| AJUSTAGE AUTO JAUGES |
| MULTIMETRE PROGRAM.5007 N[560537 |
| ESSAIS FLUAGE ETU RANSCO |
| COUPE JAUGE OUTIL FILET |
| PONT D'EXTENSOMETRIE P3500 |
| PONT D'EXTENSOMETRIE P3500 |
| PONT D'EXTENSOMETRIE P3500 |
| 8 ACCESS./MACH.DEC.BIZERBA N[885ZD29A |
| COFFRET MONO VOIE 2270F |
| MACHINE AJUSTAGE US |
| RATELIERS ET CHARIOTS MANUT.CABLES IBM |
| MODIF.MACH.AJUSTAGE ELECTROLYTIQUE |
| OUTIL./JAUGES G080 BIZERBA |
| AJUSTAGE ELECTROLYTIQUE |
| MESURE DE FLUAGE |
| MULTIMETRE 6 1/2 N°US36030069 |
| DISPOSITIF DE FILTRATION |
| AGITATEUR IKA RE 162 |
| MULT.HP3456A N[7-N[2512A18426 EX76005 |
| MACH.NETTOYAGE PAR ULTRASONS |
| GRAVURE IONIQUE EN CERCLE |
| CT QUALIFICAT.FEUILLES |
| PRESSE PRECOLLAGE POUR JAUGES |
| MACHINE A INSOLER TYPE BM 820 DF |
| MULTIMETRE 34401A N°US360115 |
Exhibit B
Purchase Price Calculation
The Purchase Price will
be calculated as follows:
| P = 1.7 x R | |||
| Where – | |||
| P | is the Purchase Price | ||
| R | is the net revenues of the Business for the trailing twelve month period ending on the last day of the calendar month preceding the Option Exercise Date. | ||
Exhibit C
Purchase Agreement
See attached.