Exhibit 99.1
Acquisition Agreements
SHARE SALE AND PURCHASE AGREEMENT
BETWEEN EQT Scandinavia Ltd. acting as the investment manager for the
group of direct investors and as the general partner for the
limited partnerships set forth in Schedule 0.1 (the direct
------------
investors and the limited partnerships are hereinafter jointly
referred to as "EQT"),
the persons set forth in Schedule 0.2
------------
(hereinafter jointly referred to as the "Management Share-
holders")
AND ▇▇▇▇▇ Industries, Inc.
(IRS employer identification No. 51-026 3969)
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(hereinafter referred to as the "Buyer")
(EQT and the Management Shareholders are hereinafter jointly referred to as the
"Sellers" and the Sellers and the Buyer are hereinafter jointly referred to as
the "Parties" or individually a "Party".)
1
WITNESSETH, that
WHEREAS, the Sellers are the owners of nominal 50,109,286 A-shares and nominal
150,674 B-shares in Struers Holding A/S, a private limited company incorporated
under the laws of Denmark which shares, with addition of nominal DKK 83,320
A-shares held by Struers Holding A/S, equal the entire subscribed for and issued
share capital in Struers Holding A/S;
WHEREAS, the Management Shareholders are the owners of 886,110 pcs. warrants
issued by Struers Holding A/S entitling the holders to subscribe for a total of
nominal DKK 8,861,100 shares in Struers Holding A/S as well as the owners
(creditors) of convertible debenture loans entitling the holders to subscribe
for a total of nominal DKK 1,698,140 shares in Struers Holding A/S;
WHEREAS, the Shares owned by the Sellers, the Treasury Shares held by Struers
Holding A/S as well as the warrants and convertible debenture loans held by the
Management Shareholders (the Management Subscription Rights) and the warrants
and convertible debenture loans held by Struers Holding A/S (the Treasury
Subscription Rights) constitute all the equity interests in Struers Holding A/S
and all the shares and other equity interests in the Subsidiaries (as defined
below) are - directly or indirectly - owned by Struers Holding A/S;
WHEREAS, Struers Holding A/S and the Subsidiaries are engaged in the
development, production, marketing and sales of materialographic sample
preparation solutions (un-
2
der the Struers name) and of precision shaping solutions for the advanced
materials used by the opto-electronics industry as well as by the electronics,
optics and earth sciences industries (under the Logitech name);
WHEREAS, the Buyer is a public limited company incorporated under the laws of
the State of Delaware and the shares in which are listed on the New York Stock
Exchange;
WHEREAS, except for the actions set forth in Schedule 8.1.3 which are to take
place prior to the Buyer's board meeting to be held on 27 July 2001, the Buyer
has completed a due diligence review of Struers Holding A/S and the Subsidiaries
based on the Due Diligence Documentation (as defined below) and the Buyer has
participated in management presentations, meetings with the management of
Struers Holding A/S and of the Subsidiaries as well as in meetings with the
auditors of said companies during which meetings the Buyer has received
additional information on Struers Holding A/S and the Subsidiaries;
WHEREAS, the Sellers wish to sell all shares, warrants and convertible debenture
loans in Struers Holding A/S (excluding the shares, warrants and convertible
debenture loans held by Struers Holding A/S, i.e. the Treasury Shares and the
Treasury Subscription Rights) and the Buyer wishes to acquire the Shares and the
Management Subscription Rights for the consideration, upon the terms and subject
to the conditions herein set forth;
3
NOW, THEREFORE, on the basis of the representations, warranties, covenants and
agreements contained in this Share Sale and Purchase Agreement, it is hereby
agreed as follows:
DEFINITIONS
For the purpose of this Share Sale and Purchase Agreement, unless the context
otherwise requires, the term
"Accounting Policies" means the accounting policies stated in the Consolidated
2000 Accounts;
"Adjustment Amount" shall have the meaning set forth in clause 2.2;
"Agreement" means this Share Sale and Purchase Agreement including all the
Schedules hereto;
"Audited" means a financial and business audit in accordance with "International
Standards on Auditing" of the income statement, balance sheet, tax returns and
all other relevant financial and support documents relating to the activities of
the Group Companies being the subject of the audit;
"Buyer's Group Companies" means the Buyer and any company or other legal entity
controlled - either individually or jointly - by the Buyer or controlling the
Buyer;
4
"Closing" shall have the meaning set forth in Section 5;
"Claim" shall have the meaning set forth in Section 9;
"Closing Date" means 4 September 2001 or such later date agreed upon between the
Parties pursuant to clause 5.1;
"Closing Statement" means the Audited statement of the Final Purchase Price to
be prepared pursuant to clause 3.1;
"Company" means Struers Holding A/S, CVR-No. 20 24 69 36 with the Danish
Commerce and Companies Agency, with its registered address at ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
"Competition Authorities" means the relevant competition authorities in Norway,
Japan, Germany, United States of America, United Kingdom, France, Spain and
Finland;
"Consolidated 2000 Accounts" means the Audited annual accounts of the Company
and the Group (as defined below) accounts as per December 31, 2000 enclosed as
Schedule 0.3 to this Agreement. The annual accounts of the Company for 2000 have
------------
been approved by an ordinary meeting of shareholders held on 28 June 2001
(however, the statement from the chairman of the meeting of shareholders is
dated 31 May 2001);
5
"Consolidated Interest Bearing Net Debt" means the amount for the Group
calculated as set forth in Schedule 0.4 as of the Closing Date when applying the
------------
Accounting Policies;
"Control" means the direct or indirect possession of more than 50 percent of the
ownership interest or the voting rights of a legal entity or the right to
appoint or remove the majority of the members of the board of directors (elected
by a general meeting of shareholders) or the similar management level of a legal
entity;
"Default Interest" means the default rate according to section 5 of the Danish
Act on Interest (in Danish: "Lov om renter ved forsinket betaling");
"Draft Interim Accounts" means the draft interim management accounts of the
Company and the Group for the period 1 January 2001 until 31 May 2001, enclosed
as Schedule 0.5;
------------
"Due Diligence Documentation" means the documentation set forth in Schedule 0.6;
------------
"Enterprise Value" shall mean the Final Purchase Price with addition of the
Consolidated Interest Bearing Net Debt;
"Escrow Account" shall have the meaning set forth in clause 5.3.1;
"Escrow Agent" shall have the meaning set forth in clause 5.3.1;
6
"Escrow Agreement" means the escrow agreement to be entered into between the
Parties and the Escrow Agent as set forth in clause 5.3.1;
"Estimated Purchase Price" means DKK 762,028,000 (Seven hundred and sixty two
million and twenty eight thousand Danish Kroner);
"Final Purchase Price" means the amount in Danish Kroner calculated as set forth
in clause 2.1;
"Group" means the Company and the Subsidiaries;
"Group Company" means the Company or any Subsidiary;
"Independent Accountant" means Deloitte & Touche, Denmark or, if Deloitte &
Touche does not accept such task, another well reputed international accounting
firm with offices in Denmark either agreed upon by the Parties, or failing such
an agreement within 3 days of notification of the said non-acceptance, to be
appointed by the Danish Organisation of State Authorised Accountants
("Foreningen af Statsautoriserede Revisorer");
"Knowledge" means
7
1. with respect to the Sellers the actual knowledge of the persons listed in
Schedule 0.7 (Section 1) after having made due inquiries of the persons
-----------------------
listed in Schedule 0.7 (Section 2), and
2. with respect to the Buyer the actual knowledge of the officers and
directors of the Buyer involved in this transaction such as listed in
Schedule 0.8 (Section 1) after having made due inquiries of those of the
------------
persons listed in Schedule 0.8 (Section 2);
"Loss" means a documented loss, claim, liability, cost or expense recoverable
under the laws of Denmark;
"Management Subscription Rights" means the right for the Management Shareholders
to subscribe for up to nominal DKK 10,559,240 (Ten million five hundred and
fifty nine thousand two hundred and forty Danish Kroner) new shares in the
Company on the terms set forth in Schedule 0.9 and the creditor's rights
------------
pertaining to the convertible debenture loans referred to in said Schedule. The
Management Subscription Rights are divided between the Sellers as set forth in
said Schedule;
"Material Adverse Effect" shall have the meaning defined in Schedule 0.10 when
-------------
used in Section 4 regarding the approvals etc. to be obtained from the
Competitive Authorities;
"Radiometer Agreement" means the Agreement between Radiometer A/S and A/S PSE
nr. 5205 (the Company) dated December 22, 1997, Schedule 0.11;
-------------
8
"Shares" means all shares in the Company (excluding the Treasury Shares), i.e.
nominal DKK 50,109,286 (Fifty million one hundred and nine thousand two hundred
and eighty six Danish Kroner) A-shares and nominal DKK 150,674 (One hundred and
fifty thousand six hundred and seventy four Danish Kroner) B-shares issued by
the Company. The Shares are divided between the Sellers as set forth in Schedule
0.9;
"Subsidiaries" means the companies set forth in Schedule 0.12;
-------------
"Taxes" means all taxes, including VAT and other levies, pay roll taxes,
withholding taxes, duties, charges, stamps and imposts of whatever nature
imposed by or payable to a tax authority (whether federal, state or community)
and any penalties and interest arising therefrom;
"Treasury Shares" means nominal DKK 83,320 (Eighty three thousand three hundred
and twenty Danish Kroner) A-shares in the Company owned by the Company;
"Treasury Subscription Rights" means the right to subscribe for up to nominal
DKK 1,017,960 (One million and seventeen thousand nine hundred and sixty Danish
Kroner) new shares in the Company on the terms set forth in Schedule 0.13 and
-------------
the creditor's rights pertaining to the debenture loans referred to in said
Schedule (the rights are non-exercisable by the Company and the Company is
legally the debtor in respect of such creditor's rights);
9
"Working Capital" means the amount of the Group calculated as set forth in
Schedule 0.14 as of the Closing Date when applying the Accounting Policies;
-------------
Unless the context otherwise requires, references to the singular number shall
include references to the plural number and vice versa, and references to
natural persons shall include corporate entities and bodies.
1. PURCHASE AND SALE OF THE SHARES AND MANAGEMENT SUBSCRIPTION RIGHTS
Upon the terms and subject to the conditions of this Agreement, the
Sellers shall sell the Shares and the Management Subscription Rights to
the Buyer and the Buyer shall purchase the Shares and the Management
Subscription Rights from the Sellers with effect as of Closing. The
Shares are sold cum dividend for the financial year 2001.
2. FINAL PURCHASE PRICE ETC.
2.1 The Final Purchase Price payable by the Buyer in favour of the Sellers
for the assignment in ownership of the Shares and the Management
Subscription Rights to the Buyer shall be DKK 1,184,000,000 (One billion
one hundred eighty four million Danish Kroner) less the Consolidated
Interest Bearing Net Debt, adjusted for any increase or decrease in the
amount of the Working Capital compared to the working capital of the
Group as of 31 December 2000 such as defined in Schedule 0.14 regarding
the Working Capital. The ▇▇▇▇▇▇▇-
10
dated Interest Bearing Net Debt and the increase or decrease in the
amount of the Working Capital are calculated as of the Closing Date.
2.2 If the Final Purchase Price is
1. greater than the Estimated Purchase Price the Buyer shall pay to the
Sellers the amount of the excess.
2. less than the Estimated Purchase Price the Sellers shall pay to the
Buyer the amount of the shortfall.
Any payment to or by the Sellers pursuant to this clause (the Adjustment
Amount) shall be made within five business days after the Closing
Statement has become final as set forth in Section 3. In case of any
breach of this payment obligation, Default Interest calculated on the
basis of the Adjustment Amount shall be paid by the defaulting Party from
the end of the five day period until and including the date of payment.
An amount corresponding to 20 percent of the Adjustment Amount shall be
paid into or released from the Escrow Account depending on whether the
Adjustment Amount is to be paid to or by the Sellers, respectively,
provided that the Sellers shall ensure that following the payment of the
Adjustment Amount the Escrowed Amount shall as a minimum be DKK
160,000,000 (One hundred and sixty million Danish Kroner) prior to the
release of any other funds from the Escrow Account.
11
2.3 The Estimated Purchase Price, the Final Purchase Price and the Enterprise
Value shall be allocated between the Sellers (and the Shares and
Management Subscription Rights) on the basis of the principles as set
forth in Schedule 2.3. Schedule 2.3 also sets forth a calculation of the
------------
Estimated Purchase Price.
2.4 The Buyer has provided the Comfort Letter enclosed as Schedule 2.4 as
------------
indication of the Buyer's ability to settle the Estimated Purchase Price
at Closing.
3 CLOSING STATEMENT ETC.
3.1 Within 45 days of the Closing Date, the Buyer shall have caused the
preparation of and delivery to the Sellers of the Closing Statement. Such
statement shall be Audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, State Authorised Public
Accountants, Denmark.
3.2 Within 10 days after their receipt of the Closing Statement, the Sellers
shall notify the Buyer of any item or items which the Sellers wish to
dispute specifying such item(s) in reasonable detail and the reason for
the dispute, failing which the Closing Statement as prepared by the Buyer
shall be deemed final and binding upon the Parties subject only to any
changes agreed by the Parties in writing or as otherwise set forth
herein. If the Parties are unable to reach agreement within 7 days of
such notification to the Buyer, either Party may within a subsequent
period of 14 days refer the matter(s) in dispute to the Independent
Accountant. If the dispute is not referred to the Independent
12
Accountant within the period stipulated, the Closing Statement delivered
to the Sellers shall be final and binding upon the Parties subject only
to any changes agreed by the Parties in writing. Notwithstanding the
above, the Sellers shall not be bound by such elements of the Closing
Statement, which are the result of Buyer's fraud or errors/omissions
which the Sellers could not discover given the circumstances.
3.3 Unless otherwise agreed by the Parties, the Independent Accountant shall
establish the procedural rules in connection with its hearing of the
Parties' respective positions on the issue(s) of dispute and any related
issues to be followed in connection with settling the dispute. The
decision of the Independent Accountant shall be final and binding upon
the Parties and shall not be subject to judicial or arbitrational review.
The Independent Accountant shall have unrestricted access to the books
and records of the Group as well as to the working papers pertaining to
the Group of the accountant referred to in clause 3.1.
The fees and expenses charged by the Independent Accountant shall be
divided equally (50/50) between the Parties. EQT Scandinavia Ltd. shall
on behalf of the Sellers settle any amount payable by the Sellers to the
Independent Accountant.
3.4 The Sellers - through an accountant elected by them - shall have
unrestricted access to all books, records and other information,
including the working pa-
13
pers of the accountant referred to in clause 3.1, which in the reasonable
opinion of the Sellers is necessary for verifying the correctness of the
Closing Statement.
4. CONDITIONS PRECEDENT
4.1 Closingis conditional upon each and every of the following conditions
precedent having been satisfied (or waived by the relevant Party):
4.1.1 Conditions precedent which may be waived by the Buyer
1. All notifications to and approvals by the Competition Authorities
required to consummate the transaction contemplated by this Agreement
shall have been made and obtained, respectively, cf. clauses 4.2 -
4.5.
2. The Sellers shall have performed and complied in all material respects
with their obligations under this Agreement at and before Closing so
that the transaction contemplated by this Agreement is not in any
material respect adversely affected and the Sellers shall have
confirmed in writing by a written instrument signed by EQT Scandinavia
Ltd. on behalf of all Sellers that those of their representations and
warranties which are to be made as of Closing, cf. clause 6.1, are in
all material respects true as of Closing.
3. No litigation, proceeding or action shall have been instituted against
any Party, (1) seeking to restrain or prohibit the consummation of the
trans-
14
action contemplated herein or (2) presenting a claim against any
Group Company, which claim, if correct and justified, would have a
material adverse effect on the business condition of the Group.
4. Final approval of this Agreement by the Buyer's board of directors to
be obtained prior to 27 July 2001 at 5 p.m. US time (EST).
5. The Buyer shall have granted its consent to the material terms and
conditions of the insurance policy to be taken out by the Sellers as
set forth in clause 4.1.2.5; it being agreed that such consent shall
not be unreasonably withheld.
4.1.2 Conditions precedent which may be waived by the Sellers
1. All notifications to and approvals by the Competition Authorities
required to consummate the transaction contemplated by this Agreement
shall have been made and obtained, respectively, cf. clauses 4.2 -
4.5.
2. The Buyer shall have performed and complied in all material respects
with all of its obligations under this Agreement at and before
Closing so that the transaction contemplated by this Agreement is not
in any material respect adversely affected and the Buyer shall have
confirmed in writing that those of its representations and warranties
which are to be made as of Closing are in all material respects true
as of Closing.
15
3. No litigation, proceeding or action shall have been instituted against any
Party, seeking to restrain or prohibit the consummation of the transaction
contemplated herein.
4. Final and unconditional approval of this Agreement (subject to its terms
and other conditions) by the Buyer's board of directors shall have been
notified in writing to the Sellers on 27 July 2001 at 5 p.m. US time (EST)
at the latest. The notice shall state that the approval is final and
unconditional (subject to the terms and other conditions of the Agreement)
and be signed by duly authorised officers of the Buyer.
5. The Sellers shall have obtained written confirmation of their ability to
obtain insurance coverage at their own cost during a period of seven years
after the Closing Date against any liability resulting from any breach of
Sellers' representations in clauses 6.1.1 (Authority), 6.1.2 (Organisation
and qualification), 6.1.3 (Title to the Shares, the Treasury Shares etc.),
6.1.4 (Capitalisation) and 6.1.5 (Subsidiaries) on terms and conditions
satisfactory to EQT Scandinavia Ltd.
Subject to the detailed advise on the legal, financial and insurance
aspects thereof to be rendered to the Sellers, such insurance shall (1) be
taken out by the Sellers as the policy holders, (2) have the Buyer as the
first beneficiary and the Sellers as the second beneficiaries (or have
another structure to the same effect), (3) have as the insured sum the
Enterprise Value less a deductible in the amount of DKK 20,000,000
16
(Twenty million Danish Kroner) or a lower amount to be determined by
the Sellers, (4) be taken out with a well reputed insurance company
appointed by the Sellers and approved by the Buyer, such approval not
to be unreasonably withheld and (5) in all material respects be subject
to ordinary European market practices and standards.
4.2 Each Party shall use its best efforts to cause that the conditions
precedent are satisfied on or prior to 4 September 2001, or on any other
date set forth herein with respect to the specific conditions precedent,
or such later date as the Parties may subsequently agree upon.
The Parties agree to promptly effect all necessary notifications to the
Competition Authorities and to effect all other submissions and rendering
of information requested or required by such authorities with a view to
obtaining all approvals requisite for the consummation of the transaction
contemplated by this Agreement. The Parties shall in common co-ordinate
the proper and timely fulfilment of the notification requirements. To this
effect the legal advisors of the Sellers shall, at their request, have
access (including by way of copies) to all information necessary for such
notifications as well as to the notifications actually made and any
correspondence etc. arising therefrom. Furthermore, at their request, the
legal advisors of the Sellers shall have the right to participate in any
and all meetings with relevant authorities.
17
The Sellers shall use all reasonable efforts to provide the Buyer on 23
July 2001 with a written outline of the insurance coverage and of the
terms (not the costs) of the insurance to be taken out by the Sellers such
as referred to in clause 4.1.2.5.
At the latest on 23 July 2001, the Sellers shall have caused the delivery
to ▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇▇-▇▇▇▇▇ Dragsted (acting as legal advisor to the
Buyer) of the original legal opinions referred to in clause 5.2.9 to be
rendered by ▇▇ ▇▇▇▇▇▇ and Ozannes.
4.3 If any of the approvals referred to in clauses 4.1.1.1 or 4.1.2.1 are not
granted or are granted subject to undertakings, obligations or conditions
having a Material Adverse Effect, the Parties shall in good faith
negotiate amendments necessary or appropriate with a view to either not
include the Group Companies being the subject matter of such refusal in
the transaction contemplated herein or to avoid or reduce such
undertakings, obligations and/or conditions and/or their respective
adverse effects.
4.4 If any of the approvals referred to in clauses 4.1.1.1 and 4.1.2.1 are not
granted (and such conditions precedent are not waived by the relevant
Party) on 31 December 2001 at the latest or such other date as the Parties
may subsequently agree upon, failing an agreement pursuant to clause 4.3,
the Party who may waive the condition precedent may - within 14 days of
having received notification of the decision of the relevant Competition
Authority -
18
terminate this Agreement with immediate effect. In case of such
termination neither of the Parties shall have any liability towards the
other unless the reason for the conditions precedent not being satisfied
is a consequence of any of the Parties being in breach of any of their
obligations under this Agreement.
4.5 If any of the approvals referred to in clause 4.1.1.1 are granted subject
to undertakings, obligations or conditions having a Material Adverse
Effect, failing an agreement pursuant to clause 4.3, the Buyer may -
within 14 days of having received notification of the decision of the
relevant Competition Authority - terminate this Agreement with immediate
effect by written notice to the Sellers, failing which notice the Buyer
shall accept such undertakings, obligations and conditions and the Parties
shall without undue delay arrange for the Group to take such actions,
including by way of disposing of any assets, as are necessary to fulfil
such undertakings, obligations or conditions without this giving right to
any adjustment of the Purchase Price unless otherwise agreed between the
Parties. In case of such termination neither of the Parties shall have any
liability towards the other, unless the reason for the condition precedent
not being satisfied is a consequence of any of the Parties being in breach
of any of their obligations under this Agreement.
If any of such approvals are granted subject to undertakings, obligations
or conditions which do not have a Material Adverse Effect, the Parties
shall accept such undertakings, obligations and conditions and the Parties
shall without undue delay arrange for the Group to take such actions,
including by way
19
of disposing of any assets, as are necessary to fulfil such
undertakings, obligations or conditions without this giving right to
any adjustment of the Purchase Price.
4.6 If the conditions precedent set forth in clauses 4.1.1.2 or 4.1.1.3 or
4.1.2.2 or 4.1.2.3 have not been satisfied (or waived by the Party who
may waive the condition precedent) on 31 December 2001 at the latest,
and with respect to clauses 4.1.1.5 and 4.1.2.5 (Insurance) on 3 August
2001 at the latest, or such other date as the Parties may subsequently
agree upon, the Party who may waive the condition(s) precedent may -
within 7 days of such date - terminate this Agreement with immediate
effect by written notice to the other Party failing which notice this
Agreement shall be consummated as contemplated herein. In case of such
termination neither of the Parties shall have any liability towards the
other unless the reason for the condition(s) precedent not being
satisfied is a consequence of any of the Parties being in breach of any
of their obligations under this Agreement.
4.7 If the conditions precedent set forth in clauses 4.1.1.4 or 4.1.2.4
(Board approval) have not been satisfied (or waived by the Party who
may waive the condition precedent) on 27 July 2001 at 5 p.m. US time
(EST), the Party who may waive the condition precedent may - within 7
days of such date - terminate this Agreement with immediate effect by
written notice to the other Party. In case of such termination neither
of the Parties shall have any liability
20
towards the other. Upon their satisfaction said conditions precedent
shall cease to have effect.
4.8 In case of any termination of this Agreement being a consequence of any
Party being in breach of its obligations under this Agreement, the
Party who is not in breach of its obligations under this Agreement is
entitled to exercise any remedy available according to the laws and
general rules of law of Denmark and this Agreement.
5. CLOSING
5.1 Closing shall be held at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ on 4 September 2001 at 10
a.m. Danish time or, if at such date all the conditions precedent have
not been satisfied (or waived by the relevant Party), by a date within
five business days after all the conditions precedent have been
satisfied (or waived), unless this Agreement has been terminated as set
forth herein.
5.2 At Closing the Sellers shall deliver, or shall cause to be delivered,
to the Buyer, the following documents and material:
1. The original share certificates pertaining to the Shares duly
endorsed in the name of the Buyer.
2. The original certificates pertaining to the Management
Subscription Rights duly endorsed in the name of the Buyer.
21
3. The original certificates pertaining to the Treasury Subscription Rights
duly endorsed in the name of the Company.
4. The Company's up-to-date, complete and original register of shareholders
with the Buyer duly registered as the owner of the Shares and the Company
duly registered as the owner of the Treasury Shares.
5. The Company's up-to-date and original minute book, including minutes of
general meetings, meetings of the board of directors and audit minutes.
6. A letter of resignation signed by those members of the boards of
directors (elected by a general meeting) of the Company and of the
Subsidiaries as will be notified by the Buyer to the Sellers not later
than 5 business days before Closing. The resignation shall be effective
as of Closing. The members resigning are entitled to their ordinary
remuneration calculated on a pro rata basis for the current year until
and including the Closing Date. Such remuneration shall be paid by the
Company or the Subsidiaries, as the case may be.
7. A letter of resignation signed by those statutory auditors of the Company
and of the Subsidiaries as will be notified by the Buyer to the Sellers
not later than 5 business days before Closing. The resignation shall be
effective as of Closing and the resigning auditors are entitled to
receive their fees for services rendered to the Company and the
Subsidiaries prior to Closing (provided the fees are not related to the
preparation,
22
negotiation and consummation of this Agreement). The fees shall be paid
by the Company or the Subsidiaries, as the case may be.
8. A letter from Unibank A/S with (1) a calculation as of the Closing Date
of the aggregate outstanding amount payable by the Group to Unibank A/S
under all its loan and credit facilities with the bank, including all
interest thereon and any and all break off costs, prepayment fees and
other similar costs and fees payable to Unibank A/S upon an immediate
settlement by the Group as of the Closing Date of all its debts to
Unibank A/S and (2) an explicit statement that upon payment of such
aggregate amount to the bank in immediately available funds and with
value before 2 p.m. Copenhagen time on the Closing Date Unibank A/S
will release and waive all pledges of the shares in the Subsidiaries
and all other security rights held by it pertaining to the Group. (The
Sellers shall use all reasonable efforts to cause that no later than
three days prior to the Closing Date Unibank A/S shall have prepared
and delivered to the Parties a pro forma calculation of the aggregate
amount set forth herein).
9. To the extent not delivered to the Buyer pursuant to clause 4.2,
original copies of duly signed (on the date of or the day prior to the
signing of this Agreement) legal opinions from ▇▇ ▇▇▇▇▇▇ and Ozannes in
the forms enclosed as Schedule 5.2.9 required to evidence the authority
--------------
of the individuals representing (1) EQT Scandinavia Ltd. executing this
Agreement on behalf of EQT and that EQT Scandinavia Ltd. has sufficient
authority to legally bind EQT and (2) copies of such evidence which in
the
23
reasonable opinion of the Buyer is required to evidence the authority
of the individuals representing the Management Shareholders when
executing this Agreement on their behalf.
10. Deliver to the Buyer originals or certified copies of such documents
which in the reasonable opinion of the Buyer are required to evidence
that the Sellers have taken out insurance effective (at the latest) as
from Closing with an insurance coverage and on such terms and
conditions which have been approved by the Parties as part of their
satisfaction (or waiver) of the conditions precedent set forth in
clauses 4.1.1.5 and 4.1.2.5 (Insurance).
11. Four originals of the Escrow Agreement duly executed by the Sellers and
the Escrow Agent.
12. Such other documents and/or actions which the Buyer may reasonably
require in order to consummate and perfect the transaction contemplated
by this Agreement.
5.3 At Closing the Buyer shall:
1. Day by wire transfer DKK 152,405,600 (One hundred and fifty two million
four hundred and five thousand six hundred Danish Kroner) (herein
referred to as the "Escrowed Amount") in cash into an escrow account
(herein referred to as the "Escrow Account") with ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇/▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, or another well reputed
24
Danish bank nominated by the Buyer and agreed upon by the Sellers
(herein referred to as the "Escrow Agent") subject to the terms of the
Escrow Agreement attached hereto as Schedule 5.3 (and subject to any
------------
amendments which may be required by the Escrow Agent) as security for
and the only means of payment of any claim caused by Sellers' breach of
any of their obligations or undertakings under this Agreement, including
any breach of any of the Sellers' representations and warranties in
Section 6, except as specifically set forth herein with respect to any
breach of the Sellers' representations in clauses 6.1.1 (Authority),
6.1.2 (Organisation and qualification), 6.1.3 (Title to the Shares, the
Treasury Shares etc.), 6.1.4 (Capitalisation), 6.1.5 (Subsidiaries),
6.1.7 (Taxes), 6.1.8 c) - e) (Environmental issues) and 6.1.18 a)
(Agreements allegedly in violation of competition rules).
2. Pay in favour of the Sellers DKK 609,622,400 (Six hundred and nine
million six hundred and twenty two thousand four hundred Danish Kroner)
(equal to the Estimated Purchase Price less the amount deposited in the
Escrow Account as set forth in clause 5.3.1), in cash in Danish Kroner
by wire transfer to a bank account designated by the Sellers prior to
Closing.
3. Deliver to the Sellers certified copies of such documents which in the
reasonable opinion of the Sellers are required to evidence that either
the Buyer has caused the Group to pay its debt to Unibank A/S such as
referred to in clause 5.2.8 or that an agreement has been entered
between
25
Unibank A/S and the Group and/or the Buyer to the effect that
Closing will not constitute an event of default of the agreements
between Unibank A/S and the Group.
4. Deliver to the Sellers certified copies of such corporate documents
which in the reasonable opinion of the Sellers are required to
evidence that the Buyer has full corporate power and all necessary
authority to consummate the transaction contemplated by this
Agreement and which are required to evidence the authority of the
individuals executing this Agreement on behalf of the Buyer.
5. Deliver to the Sellers four originals of the Escrow Agreement duly
executed by the Buyer.
6. Deliver such other documents and/or carry out such actions which the
Sellers may reasonably require in order to consummate and perfect
the transaction contemplated by this Agreement.
The settlement of the Estimated Purchase Price as set forth above shall
have the Closing Date as its value date and shall be in immediately
available funds.
5.4 All the provisions of clauses 5.2 and 5.3 shall be deemed to be
inter-conditional in all respects and title to the Shares and the
Management Subscription Rights shall not pass to the Buyer until Closing
has been perfected.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLERS
26
6.1 Except as disclosed in accordance with the principles set forth in clause
9.2.3, effective as of the signing of this Agreement and with respect to
clauses
6.1.1 (Authority)
6.1.2 (Organisation and qualification)
6.1.3 (Title to Shares, the Treasury Shares etc.)
6.1.4 (Capitalisation)
6.1.5 (Subsidiaries)
6.1.6 (Accounts)
6.1.7 a) (Taxes)
6.1.8 a) and b) (Real estate and environmental issues)
6.1.10 a) and b) (Employees)
6.1.13 (Change of ownership)
6.1.14 a) (Conduct of Business after January 1, 2001)
6.1.16 a), b) and f)(Material Contracts)
6.1.17 (Radiometer Agreement)
effective as of Closing as well, the Sellers - unless otherwise
specifically stated herein - on a pro rata basis in proportion to their
participation in the allocation of the Final Purchase Price - make the
following representations and warranties to the Buyer:
6.1.1 Authority
27
a) Each of the Sellers represents and warrants with respect to itself,
that its execution and delivery of this Agreement and the
consummation by it of the transactions contemplated hereby have, to
the extent legally required or required by corporate governance, been
duly authorised by its board of directors, and this Agreement
constitutes a valid and binding obligation enforceable against it in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency or other similar laws
which affect the enforcement of creditors' rights in general.
b) There is no consent, approval or license from or any filing with or
notice to any public authority required on the basis of the Sellers'
status or circumstances alone for the execution and consummation of
this Agreement and the transaction contemplated hereby.
6.1.2 Organisation and qualification
a) Each of the Company and the Subsidiaries is a corporation or a
limited liability company duly organised, validly existing and in
good standing under the laws of its jurisdiction of incorporation,
with all requisite corporate power and authority to own, operate and
lease its assets and to carry on its business as it is now being
conducted.
6.1.3 Title to the Shares, the Treasury Shares etc.
28
a) Each of the Sellers represents and warrants with respect to itself,
that it is the legal and beneficial owner of the part of the Shares
and the Management Subscription Rights attributable to it as set
forth in Schedule 0.9 and is capable at Closing of transferring the
title to the relevant part of the Shares and the Management
Subscription Rights to the Buyer free and clear of any lien, claim,
charge, option or other encumbrance.
b) The Company is the legal and beneficial owner of the Treasury
Shares and the Treasury Subscription Rights free and clear of any
lien, claim, charge, option or other encumbrance.
6.1.4 Capitalisation
a) The Shares, the Treasury Shares, the Management Subscription Rights
and the Treasury Subscription Rights have all been properly and
validly issued once the amendment of the Company's Articles of
Association, cf. the minutes of the extraordinary meeting of
shareholders, cf. Schedule 6.1.4, have been registered by the
Danish Commerce and Companies Agency, and the Shares and the
Treasury Shares are fully paid.
b) The Shares and the Treasury Shares represent all of the Company's
issued and outstanding share capital and together with the
Management Subscription Rights and the Treasury Subscription Rights
they represent all the equity interests in the Company.
28
c) With exception of the Management Subscription Rights and the
Treasury Subscription Rights neither the Sellers, the Company nor
the Subsidiaries have issued any warrants or any other instruments
entitling any third party to acquire or subscribe for shares in the
Company or any of the Subsidiaries.
6.1.5 Subsidiaries
a) Except as set forth in the Consolidated 2000 Accounts, the Company
is - directly or indirectly - the legal and beneficial owner of the
shares and all other equity interests in the Subsidiaries and such
shares and equity interests are free and clear of any lien, claim,
charge, option or other encumbrance.
b) Except as set forth in the Consolidated 2000 Accounts, neither the
Company nor any Subsidiary has any ownership rights in any entity
other than the ownership of the shares in the Subsidiaries and
neither the Company nor any Subsidiary has agreed to acquire any
direct or indirect ownership in other companies or entities.
c) None of the Subsidiaries have been dissolved or declared bankrupt
and no resolution to dissolve any of these companies has been
adopted by any Subsidiary. Neither has any petition for bankruptcy
been filed against any Subsidiary.
6.1.6 Accounts
30
a) The Consolidated 2000 Accounts have been prepared in accordance with the
accounting provisions of the Danish Company Accounts Act
("Arsregnskabsloven") and with the Accounting Policies as well as on a
consistent basis in respect of the consolidated accounts of the group (as
defined in such accounts) for the preceding three financial years such as
disclosed in the Due Diligence Documentation.
b) The Consolidated 2000 Accounts give a true and fair view ("retvisende
billede" as defined in the Danish Company Accounts Act) of the group's
(as defined in such accounts) assets and liabilities, financial position
and profit for 2000.
c) The Draft Interim Accounts have in all material respects been prepared in
accordance with the Accounting Policies and in all material respects in
conformity with the principles applied when preparing the management
accounts of the Group since 1 July 1998, it being agreed that the
materiality standard used herein shall be DKK 1,500,000 (as the net
effect).
d) As of 31 December 2000 and as of 31 May 2001 each Group Company was and -
except as disposed in the ordinary course of business or otherwise
against a consideration reflecting market terms - still is the legal and
beneficial owner of their respective assets reflected in the Consolidated
2000 Accounts and the Draft Interim Accounts, respectively. Each Group
Company has performed all such acts, which are necessary or
31
reasonably advisable to perfect such Group Company's title in said
assets.
e) Except as set forth in the Consolidated 2000 Accounts or in the
Draft Interim Accounts, none of the assets of any Group Company are
subject to any lien, charge or other encumbrance required to be
accounted for in the annual accounts according to the Accounting
Policies when taking into consideration that the Draft Interim
Accounts do not contain any information which would be accounted for
in the notes or in the directors' report included in the public
annual accounts.
6.1.7 Taxes
a) All returns and all notices and information required to be filed or
given by each Group Company in respect of any Taxes have been
properly prepared, executed and duly filed or given within
applicable time limits pursuant to applicable laws and regulations
and all Taxes, including - but not limited to - any Taxes relating
to transfer pricing within the Group, joint taxation (and any
abortion thereof prior to Closing), internal restructuring
transactions within the Group and incentive schemes - which (1) have
become due or are to be paid with respect to the period ending
December 31, 2000 (including all prior years) have been paid or
provision for payment made in the Consolidated 2000 Accounts and (2)
which have become due and payable at any time following 1 January
2001, but prior to signing of this Agreement, have been paid when
due
32
and payable or provision for payment made in the Draft Interim
Accounts.
b) Neither the Company nor any Subsidiary is involved in a dispute in
relation to Tax. To the Knowledge of the Sellers, no such dispute is
threatened against the Company or any Subsidiary and, to the
Knowledge of the Sellers, there are no facts or circumstances which
could reasonable be expected to form the basis of any such dispute.
c) The Company and the Subsidiaries have in all material respects
properly operated their wage Tax system and accounted for Tax
including social security payments as required by law, including by
reporting and paying all such Taxes to the relevant authorities when
due and payable.
d) To the Knowledge of the Sellers, there are no facts or circumstances
that will prevent the Company and the Subsidiaries from in all
material respects applying their existing transfer pricing
principles (intra group) on the basis of their activities, practices
and procedures applicable at the date of signing of this Agreement.
6.1.8 Real estate and environmental issues
a) Except for any real estate which may have been disposed of in the
course of normal business or otherwise against a consideration
reflecting market terms, the Company and each Subsidiary have good
and marketable title to, or a valid leasehold interest in, the real
estate re-
33
flected in the Consolidated 2000 Accounts and the Draft Interim
Accounts.
b) The real estate, including buildings and all fixed installations
forming an integral part of such buildings, owned by the Group has in
all material respects been legally erected and the present use by the
Group of such real estate is lawful in all material respects.
c) To the Knowledge of the Sellers, the Company and the Subsidiaries have
conducted their business in compliance with relevant environmental
laws and environmental licenses.
d) Neither the Company nor any of the Subsidiaries are engaged in any
dispute with a public authority relating to environmental laws and, to
the Knowledge of the Sellers, no such dispute is threatened.
e) To the Knowledge of the Sellers, none of the premises presently or
previously owned, leased or operated by any Group Company including,
but not limited to, the premises situated at Fjeldhammervej
▇▇-▇▇/▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (title numbers 10-d, 10-k,
10-m and 10-s Roedovre by, Roedovre) are in any material respects
contaminated with any chemical, pollutant or other environmentally
hazardous substance for which any Group Company is liable and, to the
Knowledge of the Sellers, none of the premises presently owned, leased
or operated by any Group Company are threatened to be registered as a
chemical or other waste deposit.
34
6.1.9 Intellectual property rights
a) The Sellers, the Company and the Subsidiaries hold valid title or
license to use all patents, designs, tradenames, trademarks
(including all exclusive rights to the name "Struers") and know-how
necessary for the Group to carry out its business in all material
respects as presently conducted. All intellectual property rights
held by the Group and which are registered with relevant public
authorities are listed in Schedule 6.1.9.
--------------
b) Neither the Company nor any of the Subsidiaries are engaged in any
dispute in which any third party is claiming that any Group Company
infringes the intellectual property rights of the third party and,
to the Knowledge of the Sellers, no such dispute is threatened.
c) To the Knowledge of the Sellers, no third party is in any material
way infringing any of the intellectual property rights necessary for
the Group to carry out its business in all material respects as
presently conducted.
6.1.10 Employees
a) All employment contracts with the employees of the Company and of
the Subsidiaries have been entered into in the best interest of the
relevant companies.
35
b) The employees of the Company and of the Subsidiaries have been
employed on terms and conditions which in all material respects are
consistent with normal practices in the relevant labour markets.
c) None of the key employees referred to in Schedule 6.1.10 have given
---------------
notice of termination of their employment relationship with the
relevant Group Company or, to the Knowledge of the Sellers, made it
known that they intent to give such notice of termination during the
period ending on the first anniversary of the Closing Date.
d) None of the Group Companies are party to any dispute with any
present or prior director or employee of the Group and, to the
Knowledge of the Sellers, no such dispute is threatened.
6.1.11 Insurance
a) The insurance policies taken out by the Company and its Subsidiaries
as set forth in Schedule 6.1.11 are in effect and all premium which
---------------
has become due and payable at the date of the signature of this
Agreement has been paid.
b) There are no outstanding claims under any of the said insurance
policies.
c) To the Knowledge of the Sellers, the Group has not received any
advise from any actuary stating that the insurance policies referred
to in clause
36
6.1.11 a) in any material way involve an inadequate insurance
coverage on the basis of the activities of the Group as presently
conducted.
6.1.12 Litigation
a) Neither the Company nor any of the Subsidiaries are engaged in any
litigation or arbitration and, to the Knowledge of the Sellers, no
such litigation or arbitration is threatened.
b) The termination by Struers A/S on 13 September 1999 of its contract
dated 8 November 1991 with EN-Equipamentos de Analise e Ensaio, Lda.
(a Portuguese distributor) does not entitle the latter party to any
damages or compensation except as provided for in the Consolidated
2000 Accounts.
6.1.13 Change of ownership
a) To the Knowledge of the Sellers, the execution and delivery of this
Agreement and the consummation of the transaction contemplated
hereby will not
1. allow any third party to terminate, rescind or in any other way
break off or modify any material contractual relationship with
the Company or any Subsidiary,
37
2. entitle any director, manager or employee of the Company or any
Subsidiary to receive any termination or severance payment from
any Group Company, or
3. violate, conflict with or result in a violation or breach of the
terms, conditions or provisions of any material agreement
executed by the Company or any Subsidiary.
6.1.14 Conduct of Business after January 1, 2001
a) Since January 1, 2001 and until signing of this Agreement, the
activities of the Company and each Subsidiary:
1. have been conducted only in the ordinary course, without any
interruption or alteration in nature, scope or manner and
consistent with past practices,
2. have not suffered any change or condition which, individually or
in the aggregate, has had a material adverse effect upon the
Group's condition (financial or otherwise), assets, liabilities
or business, or
3. have not incurred any material obligations or liabilities
(whether actual, contingent or other) outside the ordinary
course of business,
unless accounted for in the Draft Interim Accounts.
38
6.1.15 Compliance
a) To the Knowledge of the Sellers, each Group Company has in all
material respects complied with all applicable laws, including - but
not limited to - environmental, competition and labour laws and has
in all material respects complied with all specific orders or
rulings of any court and public authority issued against it and, to
the Knowledge of the Sellers, no Group Company is under any
investigation by any public authority nor has any such investigation
been notified to any Group Company.
6.1.16 Material Contracts
a) No Group Company is party to any ongoing agreement with any third
party, which agreement on an annual basis account for accruals and
expenses for the relevant Group Company in excess of DKK 5,000,000
(Five million Danish Kroner) and which agreement may not be
terminated by the relevant Group Company with a written notice of
twelve months at the most.
b) Each of the respective Group Companies has in all material respects
fulfilled its obligations under material contracts to which it is
party as and when due and payable.
c) The relevant third parties to material contracts with the respective
Group Companies have in all material respects fulfilled their
obligations under such contracts as and when due and payable.
39
d) All of the material contracts to which any of the Group Companies
are party are in full force and effect, and, to the Knowledge of
the Sellers, since 1 January 2001 no material contract to which
any Group Company is/was party has been terminated by the
relevant Group Company.
e) To the Knowledge of the Sellers, since 1 January 2001 none of the
material contracts to which any Group Company is/was a party have
been terminated by the relevant third party and, to the Knowledge
of the Sellers, no such termination or breach is threatened.
f) All material contracts to which any Group Company is party have
in all material respects been entered into on arms length terms
and conditions and in the best interest of the relevant Group
Company.
6.1.17 Radiometer Agreement
a) None of the Company's rights towards Radiometer A/S under the
Radiometer Agreement have been waived or in any other way
jeopardized by conduct, and the Company may invoke all rights
provided to it against Radiometer A/S under the Radiometer
Agreement subject to the terms of the Radiometer Agreement.
6.1.18 Agreements in Restraint of Competition
a) To the Knowledge of the Sellers, none of the Group Companies are
party to or bound by any material contract or understanding or
knowingly
40
participating in any collective behaviour (i) involving an
illegal restraint of free competition or (ii) which requires
approval from or notification to any governmental or supra
national authority or body.
b) The restraints on free competition consequential upon the
agreements referred to in Schedule 6.1.18 will not result in (1)
any penalty, fine or the like imposed by or payable to any public
authority or (2) any damages payable to any third party - in both
cases as a consequence of an investigation or other actions not
initiated by the Buyer or the Group; it being agreed that the
Buyer shall cause the Group to waive those of its rights under
the agreements which are alleged to be contrary to competition
law rules.
6.1.19 Representations and warranties not untrue
a) To the Knowledge of the Sellers, the representations and
warranties in clauses 6.1.1 through 6.1.18 contain no materially
untrue or misleading statement of fact or omit to state any
material fact necessary to be stated herein in order to make the
statements contained therein not misleading in any material way.
6.1.20 The Duty to Loyally Inform
a) By way of the Due Diligence Documentation, the management
presentations, the information made available to the Buyer and
its advisors during site visits, interviews, meetings or
otherwise, the Sellers have com-
41
plied with the principle of Danish law to loyally inform the Buyer
of any material aspects of the business of the Company and the
Subsidiaries which might reasonably be expected materially and
adversely to affect the willingness of a buyer to purchase the
Shares and the Management Subscription Rights on the terms of this
Agreement (in Danish: "Saelgers loyale oplysningspligt").
7. REPRESENTATIONS AND WARRANTIES OF THE BUYER
7.1 Effective as of the signing of this Agreement and as of Closing the Buyer
represents and warrants the following to the Sellers:
7.11 Authority
a) Upon fulfilment of the conditions precedent in clauses 4.1.1.4
and 4.1.2.4 (Board approval), the execution and delivery of this
Agreement and the consummation of the transaction contemplated
hereby will have been duly ratified and authorised by the Buyer's
board of directors and no other corporate proceedings on the part
of the Buyer will be necessary to authorise this Agreement or to
consummate the transaction contemplated hereby.
b) This Agreement constitutes a valid and binding obligation of the
Buyer enforceable against the Buyer in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency
42
or other similar laws which affect the enforcement of creditors'
rights in general.
c) There are no actions, claims or other proceedings or
investigations pending or threatened against or involving the
Buyer, which, individually or in the aggregate, prevent the Buyer
from consummating the transaction contemplated by this Agreement
or affect the validity or enforceability of this Agreement.
d) Subject to the fulfilment of the conditions precedent in 4.1.1.1
and 4.1.2.1 there is no consent, approval or license from or any
filing with or notice to any governmental authority or any third
party necessary or required on the basis of the status or
circumstances of the Buyer and the Group for the execution and
consummation of this Agreement and the transaction contemplated
hereby.
7.1.2 Organisation and qualification
a) The Buyer is a company duly organised, validly existing and in
good standing under the laws of its jurisdiction of incorporation
with all requisite corporate power and authority to own, operate
and lease its assets and to carry on its business as it is now
being conducted.
8. ADDITIONAL COVENANTS
8.1 Interim relations
43
8.1.1. Pending Closing the Sellers shall cause that the business of the
Group is carried out in the ordinary course of business
consistent with past practice so as to maintain the Group as a
going concern and no action shall be taken or agreement entered
which may have a material effect on the Group taken as a whole
without the prior written consent of the Buyer, unless such
action (1) has been envisaged in the budget for the financial
year 2001 and (2) appropriate advance notice is given to the
Buyer.
8.1.2 The Parties have decided to deal with the new lease contract
which has been entered into by Struers Inc., but not ratified by
its board of directors, as set forth in Schedule 8.1.2.
---------------
8.1.3 Pending Closing the Buyer shall have access to the Key Employees
referred to in Schedule 6.1.10 and to the distributors listed in
Schedule 8.1.3 on the terms set forth in the latter Schedule.
--------------
Buyer shall otherwise have such access to the Group as will be
mutually agreed upon.
8.2 Further assurances
Each of the Parties shall execute such documents and take such
actions as may be reasonably required to carry out the provisions
of this Agreement and the transactions contemplated hereby.
8.3 Restrictive covenants
44
8.3.1 If this Agreement is terminated, irrespective of the cause for
such termination, for a period of three years from such
termination, the Buyer shall not, and shall cause each of the
Buyer's Group Companies not to engage, employ, solicit or contact
with the view to his or her engagement or employment any of the
Key Employees referred to in Schedule 6.1.10.
8.3.2 Conditional upon Closing, for a period of three years from the
Closing Date, EQT Scandinavia Ltd. (and its directors and
officers) shall not, and shall not cause any third party to,
engage, employ, solicit or contact with the view to his or her
engagement or employment any of the Key Employees referred to in
Schedule 6.1.10.
8.3.3 Any breach of the restrictive covenant in this Clause 8.3 shall
incur an obligation to pay to the non-breaching Party as
liquidated damages an amount equal to DKK 1,000,000 (One million
Danish Kroner) for each instance of violation.
If the violation consists of the maintenance of a condition in
contravention of the restrictive covenant (as notified by the
non-breaching Party), a violation shall be deemed to exist for
each calendar month in which the violation occurs.
Payment of liquidated damages shall not cause clause 8.3 to cease
to have effect.
45
8.3.4 The Buyer shall also pay liquidated damages to the Sellers in
case of any non-compliance with this clause by any other Buyer's
Group Company.
8.3.5 Any remedies available pursuant to this clause 8.3 in case of a
breach by EQT Scandinavia Ltd. shall only be enforceable against
EQT Scandinavia Ltd. without any liability for the Sellers.
9. REMEDIES
9.1 General
9.1.1 The Parties - unless otherwise specifically set forth herein, the
Sellers pro rata in proportion to their participation in the
allocation of the Final Purchase Price - hereby undertake to
indemnify each other for all Losses actually suffered by each
other as a result of any breach of the representations and
warranties of the Parties under this Agreement subject to the
terms hereof.
9.1.2 In case of any Claims regarding any breach of clauses 6.1.1 a)
(Authority) or 6.1.3 (Title to the Shares, the Treasury Shares
etc.) which is duly notified to the Sellers and which is not
remedied by the Sellers or mitigated by the Buyer as set forth in
clause 9.7, the Buyer shall have the right to rescind this
Agreement, in whole or in part.
9.1.3 In case of any Claims regarding any breach of clauses 6.1.1
(Authority), 6.1.2 (Organisation and qualification), 6.1.3 (Title
to the Shares, the Treasury Shares etc.), 6.1.4 (Capitalisation)
or 6.1.5 (Subsidiaries) duly notified to the
46
Sellers prior to the seventh anniversary of the Closing, the
Buyer shall - subject to the other terms of this Agreement - be
entitled to be indemnified by the Sellers on a joint and several
basis. However, each Seller shall not be liable towards the Buyer
or otherwise be required to make any payment to the Buyer with
respect to any such breach to the extent that the Seller's
aggregate liability and the aggregate payments made on its behalf
under this Agreement exceed the Seller's participation in the
Final Purchase Price calculated on the basis of the principles
set forth in Schedule 2.3.
9.1.4 In case of any Claims regarding any breach of clauses 6.1.1 a)
(Authority) or 6.1.3 (Title to the Shares, the Treasury Shares
etc.) duly notified to the Sellers on the seventh anniversary of
the Closing Date or later, the Buyer shall - subject to the other
terms of this Agreement - be entitled to be indemnified by the
Sellers on a joint and several basis. However, each Selller shall
bot be liable towards the Buyer or otherwise be required to make
any payment to the Buyer with respect to any such beach to the
extent that the Seller's aggregate liability and the aggregate
payments made on its behalf under this agreement exceed the
Seller's participation in the Final Purchase Price calculated on
the basis of the principles set forth in Schedule 2.3.
9.2 Claims
9.2.1 In order to be valid, any claims made by the Buyer under this
Agreement (herein referred to as a "Claim") shall be notified
in writing to the Sellers as follows:
47
1. Each Claim shall state its specific grounds and the estimated amount
claimed and shall, to the extent available to the Buyer, be
accompanied by all written documentation necessary to reasonably
support the Claim,
2. to the extent that the basis for the Claim falls within the subject
matters of clauses
3.3 (Joint taxation),
3.4 (Division of Radiometer GmbH),
8.3 a) - f) (Authority, Title, The SPG Companies, Share Capital,
Options and Other Rights and Constituent Documents),
8.3 q) (Environmental Matters), or
12.6 (Liability for Taxes).
of the Radiometer Agreement or other remedies are available to the
Company under the Radiometer Agreement, the Claim shall be accompanied
by evidence that the Company has timely given the relevant
corresponding notice to Radiometer A/S of its claim under the
Radiometer Agreement (Claim Notice), and
3. each Claim shall be notified in writing by the Buyer to the Sellers no
later than 45 days after the Buyer has become aware or ought to have
become aware of all material circumstances giving rise to the Claim.
48
9.2.2 Claims of a general nature which do not identify the grounds on
which they are based or are not accompanied by the documentation
set forth in 9.2.1.1 and 9.2.1.2 shall not be considered as valid
under this Agreement. Furthermore, failure to give notice of any
Claim within the time period specified in clause 9.2.1.3 shall
automatically result in the Claim being forfeited by the Buyer.
If the Sellers dispute a Claim notified by the Buyer under this
Agreement, the Buyer shall request arbitration in accordance with
clause 10.14 and serve its written complaint (in Danish
"klageskrift") on the Sellers within 45 days after the Buyer has
received notice that the Sellers dispute the Claim. The written
complaint shall include the Buyer's statement of its Claim and
all material arguments and documents supporting the Claim.
Failure to observe the time limit set forth herein shall
automatically result in the Claim being forfeited by the Buyer.
The Parties shall use all reasonable efforts to ensure that the
arbitration procedure shall progress as swiftly as possible and
the award shall, to the extent possible, be made within 6 months
of the notice of arbitration has been given.
9.2.3 The Buyer shall not be entitled to make any Claims with respect
to any breach of the Sellers' representations and warranties in
Section 6 if, and to the extent, all material facts forming the
basis for such Claims have been (1) fairly disclosed in the Due
Diligence Documentation and in a reasonable manner, (2)
49
disclosed fairly and in a reasonable manner in any other way by the
Sellers or (3) otherwise within the Buyer's Knowledge as of the
signing of this Agreement. Schedule 9.2.3 consist of the due
--------------
diligence reports prepared by the Buyer's advisors for the benefit
of the Buyer. Such reports reflect Buyer's Knowledge, but the
Sellers shall not in any way be prevented from or limited in
establishing that Buyer's Knowledge comprises other information as
well.
This limitation of the Buyer's right to make Claims against the
Sellers shall not apply (irrespective of any disclosure made) to
Claims resulting from a breach of the Sellers' representations and
warranties in clauses 6.1.3 (Title to the Shares, the Treasury
Shares etc.), 6.1.7 (Taxes), 6.1.8 c) - e) (Environmental issues),
6.1.12 b) (Portuguese distributor) and 6.1.18 b) (Agreements
allegedly in violation of competition rules).
9.2.4 The Buyer shall not be entitled to any indemnification from the
Sellers with respect to any Claim for Losses suffered as a
consequence of any breach of clauses 6.1.8 c) - e) (Environmental
issues) unless the Claim is
1. caused by an order of a competent governmental authority made
ex officio by such authority and provided that the order cannot
be appealed,
2. caused by a third party (a neighbour, an employee or another
third party having a legally protected interest in making a
claim against the Group in respect of environmental issues.
(For the avoidance of doubt, third party shall not comprise the
Buyer or any Group Company)), or is
50
3. caused by any environmental remedial action necessary for the
Group to carry on its business in the ordinary way, including
by adding to or changing existing buildings.
9.3 Dead-line for submission of Claims
9.3.1 The Sellers shall have no liability under this Agreement with
respect to any Claim notified to the Sellers subsequent to 18
months after the Closing Date, provided, however, that the Sellers
shall be liable for any Claim resulting from a breach of
1. clauses 6.1.7 (Taxes), 6.1.8 c) - e) (Environmental issues) and
6.1.18 b) (Agreements allegedly in violation of competition
rules), if such Claim has been duly notified to the Sellers
prior to 60 months after the Closing Date (the fifth
anniversary of the Closing Date).
2. clauses 6.1.1 (Authority), 6.1.2 (Organisation and
qualification), 6.1.3 (Title to the Shares, the Treasury Shares
etc.), 6.1.4 (Capitalisation) and 6.1.5 (Subsidiaries) if such
Claim has been duly notified to the Sellers prior to the
seventh anniversary of the Closing Date unless set forth in
clause 9.3.1.3.
3. Clauses 6.1.1 a) (Authority) and 6.1.3 (Title to the Shares,
the Treasury Shares etc.) without any limitation in time,
provided that any such Claims shall be duly notified to the
Sellers in accordance with clause 9.2.1 - 9.2.3.
51
9.4 Third party claims, claims under the Radiometer Agreement and
environmental claims
9.4.1 In the event any third party asserts any claim, based on which a
Claim is notified to the Sellers, the Sellers (acting as one party)
shall have the right, at their election, risk and expense, to
control the defence of such third party claim by giving notice
within 30 days from the date of the Claim having been notified to
the Sellers.
9.4.2 The Buyer shall cause the relevant company within the Group to
co-operate with the Sellers and with any counsel appointed by the
Sellers. The Buyer shall cause that such third party claims and any
counterclaims are not settled and that no liability is admitted
without the prior written consent of the Sellers.
9.4.3 The Sellers shall keep the Buyer informed in reasonable detail
during the defence of any such third party claim.
9.4.4 Without the prior consent of the Buyer, the Sellers shall not be
entitled to enter into any settlement agreement with the third
party in the name of the relevant Group Company nor to make any
concessions on behalf of the latter company having a material
impact (financial or otherwise) on the relevant Group Company. If
the Buyer withholds its consent to a settlement proposal etc.
submitted by the Sellers, the Buyer's Claim against the Sellers
shall be reduced to the amount by which the Sellers would otherwise
have been entitled to release themselves from the Buyer's Claim.
52
9.4.5 Clause 9.4.1 - 9.4.4 shall apply mutatis mutandis to any potential
claim by the Company against Radiometer A/S under the Radiometer
Agreement in the sense that the Sellers shall have the right to
control any such claim against Radiometer A/S, if a corresponding
Claim is notified to the Sellers.
9.4.6 In case of any Claim regarding environmental issues, the Sellers
shall have the right to appoint the contractors who shall perform
the remedial actions, if any.
9.5 Losses
9.5.1 Any Loss for which a Claim is notified to the Sellers shall be
calculated subject to the following principles and otherwise in
accordance with the laws and general rules of law of Denmark:
1. Only Losses which have been effectively sustained by the Buyer,
the Company or by any of the Subsidiaries shall qualify for
indemnification;
2. the effect of any realized Tax benefit or saving by the Buyer
and the Group as a result of the Claim shall be deducted when
calculating the Loss;
3. the amount of any compensation or other recovery (including
without limitation insurance proceeds (net of any insurance
premiums paid on the relevant insurance after the Closing Date)
and any payment by Radiometer A/S pursuant to the Radiometer
Agreement) actually paid to or
53
otherwise credited the Buyer, the Company and/or the Subsidiaries
shall be deducted when calculating the Loss. If a Claim has been
settled by the Sellers and the relevant company subsequently recovers
any payment or compensation with respect to such Claim the Buyer shall
pay to the Sellers the amount so recovered;
4. the occurrence of or increase of a Loss being the direct consequence
of any changed law or accounting principles adopted subsequent to the
Closing Date shall be disregarded;
5. the occurrence of or the increase of a Loss being the result of any
omission to avoid or mitigate the Loss on the part of the Buyer, the
Company and/or the Subsidiaries subsequent to the Closing Date shall
be disregarded;
6. no Loss has been suffered to the extent that a provision regarding the
subject of the Claim has been made in the Consolidated 2000 Accounts
or in the Draft Interim Accounts;
7. any indemnification to be made by the Sellers shall equal the amount
of the Loss actually sustained by the Company or by the Subsidiaries
without taking into consideration any multiple based on price earnings
or similar ratios;
8. only direct Losses shall be eligible for indemnification by the
Sellers;
54
9. in calculating whether or not a Loss exceeds the thresholds in
clause 9.6, Losses sustained in foreign currencies shall be
converted into DKK at the time when the Losses have occurred
(not the acts etc. causing the Losses);
10. to the extent that a Loss that would otherwise have been
claimable against the Sellers has been accounted for in favour
of the Buyer when calculating the Final Purchase Price, such
Loss shall be disregarded;
11. Losses with respect to any breach of clause 6.1.8 c) - e)
(Environmental issues) shall only be eligible for
indemnification to the extent that the Loss is limited to (1)
the remedial actions necessary to allow the Group to continue
a business of the same nature as conducted as of the Closing
Date, (2) the zoning status of the relevant contaminated
premises as of the Closing Date and (3) any damages payable to
any of the third parties referred to in clause 9.2.4;
12. only Losses exceeding the threshold of DKK 350,000 set forth
in clause 9.6.1.2 regarding individual Claims shall qualify
for indemnification, but for the full amount (from the first
Danish Krone).
9.5.2 Any payment by the Sellers to the Buyer as a result of a Claim
shall be regarded as a reduction of the Final Purchase Price (a
Krone for Krone reduction of the Final Purchase Price).
9.6 Principles for determining the indemnification
55
9.6.1 The Sellers shall only be liable for indemnification provided that
1. the aggregate Claims exceed DKK 7,500,000 (Seven million five
hundred thousand Danish Kroner ), and then only for the portion
of the aggregate Claims exceeding DKK 5,000,000 (Five million
Danish Kroner) (a deductible), and
2. only individual Claims exceeding DKK 350,000 (Three hundred and
fifty thousand Danish Kroner) such as notified and calculated
in accordance with the terms of this Agreement shall be
considered when determining whether or not the threshold equal
to DKK 7,500,000 is exceeded.
The thresholds and the deductible set forth herein shall not apply
to any Claims regarding the representations and warranties in
clauses 6.1.1 (Authority), 6.1.2 (Organisation and qualification),
6.1.3 (Title to the Shares, the Treasury Shares etc.), 6.1.4
(Capitalisation) and 6.1.5 (Subsidiaries), 6.1.7 (Taxes), 6.1.8 c)
- e) (Environmental issues) and 6.1.18 b) (Agreements allegedly in
violation of competition rules). Only the threshold set forth in
clause 9.6.1.2 regarding individual Claims shall apply to any
Claims regarding the representation and warranty in clause 6.1.12
b) (Portuguese distributor).
9.6.2 Except as set forth in this clause or in clause 9.6.3, the maximum
aggregate indemnification claimable against the Sellers shall in no
event exceed
56
1. DKK (An amount equal to 20 percent of the Final Purchase Price,
however, a minimum of DKK 160,000,000 ) in respect of Claims made
prior to 18 months after the Closing Date,
2. DKK (An amount equal to 7.5 percent of the Final Purchase Price,
however, a minimum of DKK 60,000,000 ) in respect of Claims made
during the period 18 months to a date prior to 36 months after the
Closing Date,
3. DKK (An amount equal to 5 percent of the Final Purchase Price,
however, a minimum of DKK 40,000,000 ) in respect of Claims made
during the period 36 months to a date prior to 48 months after the
Closing Date,
4. DKK (An amount equal to 2.5 percent of the Final Purchase Price,
however, a minimum of DKK 20,000,000 ) in respect of Claims made
during the period 48 months to a date prior to 60 months after the
Closing Date.
Irrespective of any release of funds from the Escrow Account, the maximum
aggregate indemnification in case of any breach of clauses 6.1.7 (Taxes),
6.1.8 c) - e) (Environmental issues) and 6.1.18 b) (Agreements allegedly in
restraint of competition rules) shall remain DKK (An amount equal to 20
percent of the Final Purchase Price, however, a minimum of DKK 160,000,000)
less the aggregate amounts of any other Claims settled in favour of the
Buyer.
57
For the avoidance of doubt the maxima are not cumulative and the
Buyer shall not be entitled to any indemnification in excess of the
amount, which at any point in time has not been released from the
Escrow Account, unless otherwise set forth in clause 9.6.4.
9.6.3 Clause 9.6.2 shall not apply to any Claims regarding any breach of
clauses 6.1.1 (Authority), 6.1.2 (Organisation and qualification),
6.1.3 (Title to the Shares, the Treasury Shares etc.), 6.1.4
(Capitalisation) and 6.1.5 (Subsidiaries) as such Claims and
liability for the Sellers shall be limited as set forth in clauses
9.1.3 and 9.1.4.
As a consequence of the deductible equal to DKK 20,000,000 regarding
the insurance referred to in clause 4.1.2.5, the Sellers undertake
to ensure that at any time during 60 months after the Closing Date
the Escrowed Amount as a minimum equals DKK 20,000,000, or if the
insurance deductible becomes a lower amount then such lower amount.
However, the Sellers shall not make any payment hereunder in excess
of said deductible. In case the Sellers have to make any payment to
the Escrow Account as a consequence hereof such payment shall only
serve as security for payment of any breach of the Sellers
representations and warranties in clauses 6.1.1 (Authority), 6.1.2
(Organisation and qualification), 6.1.3 (Title to the Shares, the
Treasury Shares etc.), 6.1.4 (Capitalisation) and 6.1.5
(Subsidiaries). In case of any agreed breach or breach according to
an Arbitrational Award pursuant to clause 10.14 regarding any of the
latter five representations and warranties the Buyer shall be
en-
58
titled to enforce the part of its Claim that corresponds to the
deductible under the insurance directly against the Sellers without
having to make any Claim for payment under the Escrow Agreement.
However, if the Buyer so choses, an amount equal to the amount paid
into the Escrow Account under this clause 9.6.3 in order to make
the Escrowed Amount equal DKK 20,000,000 shall be released in
favour of the Sellers when payment of an amount equal thereto has
been made in favour of the Buyer.
9.6.4 The settlement by the Sellers of any Claim under this Agreement
shall take place by way of a release of the relevant amount from
the Escrow Account to the Buyer. To the extent the Claims referred
to in clauses 9.1.3 and 9.1.4 or with respect to any breach of
clauses 6.1.7 (Taxes), 6.1.8 c) - e) (Environmental issues) and
6.1.18 b) (Agreements allegedly in restraint of competition rules)
may not be satisfied by way of a release from the Escrow Account
the excess shall be paid by the Sellers to the Buyer on the terms
and subject to the limitations otherwise set forth herein.
9.7 Mitigating matters
9.7.1 The Buyer shall use all reasonable efforts to mitigate any Loss for
which a Claim is notified to the Sellers and the Buyer shall cause
that the Company and the Subsidiaries do the same, including by way
of making and pursuing relevant claims under the Radiometer
Agreement and by exercising any mandatory or other right of
redemption in case of any lack of title to shares or other equity
instruments.
59
9.7.2 In the event of a Claim in respect of a matter which in the
Sellers' reasonable opinion is capable of cure, the Sellers shall
have the right, exercisable upon written notice to the Buyer, to
attempt to cure within a reasonable period of time the matter
resulting in the Claim.
9.8 Exclusive remedies
9.8.1 Except as specifically stated in this Agreement the Sellers do not
make any representation nor give any warranty, express or implied,
to the Buyer.
9.8.2 Except as otherwise specifically provided for in this Agreement the
remedies provided for in Section 9 shall be the exclusive remedies
of the Buyer with respect to any breach of any representation or
warranty made by the Sellers in this Agreement. In particular the
Buyer hereby renounces any right that it may have, or subsequently
acquire, under the laws of Denmark to otherwise rescind this
Agreement or to claim a proportional reduction of the Purchase
Price (in Danish "forholdsmaessigt afslag").
9.8.3 Notwithstanding anything to the contrary herein, the provisions in
this Section 9 limiting or reducing any of the Buyer's remedies
otherwise available to the Buyer under Danish law shall not apply
in any circumstance where the breach of a representation, warranty,
covenant or agreement by the Sellers arises out of or as a result
of fraud or wilful misrepresentation, wilful concealment, wilful
misstatement or other similar conduct of the Sellers or of any of
the Sellers' officers, directors or employees, but the exception
set forth in this clause
60
shall only apply to the Seller committing the fraud, the wilful
misrepresentation, the wilful concealment, the wilful misstatement
or the other similar conduct and to any other Seller being aware
hereof at the time of signing of this Agreement.
10. OTHER PROVISIONS
10.1 Entire Agreement
This Agreement supersedes any oral or prior written agreement or
understanding between the Parties, undertaking, representation and
warranty of any kind with respect to all matters referred to in
this Agreement.
10.2 Confidentiality
10.2.1 Information acquired by the Parties regarding each other or
regarding any Group Company in connection with the negotiations
for, entering into, and the consummation of this Agreement shall be
deemed to be confidential information, which the Parties are,
without limit of time, not entitled to use or pass on to any third
party except
1. with prior written consent of the other Party;
2. as may be required by law, applicable accounting or stock
exchange regulations (in accordance with the Buyer's normal
practices) or order of
61
a court of competent jurisdiction or required to fulfil the conditions
precedent of this Agreement; and
3. to its auditors, legal counsel and other advisors who are required
by law or written agreement to observe secrecy.
Any disclosure pursuant to clause 10.2.1.2 requires prior notice to
and consultation with the other Party.
Upon Closing the Confidentiality Undertaking executed by the Buyer
with respect to the transaction contemplated by this Agreement shall
cease to have effect and the Sellers waive all claims against the
Buyer under such undertaking. The wording set forth below in this
clause is a consequence of such termination.
Except as otherwise set forth in this Agreement, neither EQT
Scandinavia Ltd., ▇▇▇▇▇▇ & Company, any of the Sellers' other advisors
or consultants (including, but not limited to, KPMG ▇. ▇▇▇▇▇▇▇▇▇ and
Kromann Reumert) nor the Sellers shall be deemed to have made any
representation or warranty as to the accuracy or completeness of the
Due Diligence Documentation or any other information furnished to the
Buyer. Moreover, except as otherwise set forth in this Agreement, EQT
Scandinavia Ltd., ▇▇▇▇▇▇ & Company, any of the Sellers' other advisors
or consultants (including, but not limited to, KPMG ▇. ▇▇▇▇▇▇▇▇▇ and
Kromann Reumert) and their respective directors, officers, employees
and agents and the Sellers and their respective directors, officers,
employees
62
and agents shall not have any liability towards the Buyer or any of
the Buyer's representatives, advisors or consultants arising from
any use of the Due Diligence Documentation or any other information
furnished to the Buyer, its representatives, advisors or
consultants. The waiver set forth herein shall not apply in case of
any fraud, wilful misrepresentation, wilful concealment, wilful
misstatement or other similar conduct.
10.2.2 For purpose of this clause, the requirement as to observe
confidentiality shall not apply to any information which
1. was available to the general public at the time of its
disclosure;
2. becomes available to the general public other than as a result
of any non-compliance with this clause;
3. is provided to the disclosing Party by a third party who is
lawfully in possession of such information and who has a lawful
right to disclose it;
4. was in the possession of the disclosing Party at the time of
the execution of the Confidentiality Undertaking by the Buyer
regarding the transaction contemplated by this Agreement; or
5. was independently developed by the disclosing Party.
10.2.3 Each Party shall cause its respective employees, agents and
representatives not to disclose to any third party or to use or
exploit for any purpose whatso-
63
ever any such information which the Party itself is prohibited from
disclosing or using pursuant to this clause 10.2.
10.3 Publicity
10.3.1 The Parties will each prepare a press release. Said press releases
shall be released to their addressees upon fulfilment (or waiver)
of the conditions precedent in clauses 4.1.1.4 and 4.1.2.4 (Board
approval) and subject to prior co-ordination between the Parties.
10.3.2 The Parties agree that the terms and conditions of this Agreement
shall not be made public except as may be required by applicable
law or regulation, including stock exchange regulations of the
exchange upon which their securities are traded in which case the
Parties shall seek to agree on the wording of any such releases,
but failing such agreement the Buyer shall be entitled to make the
announcement so required.
64
10.4 Severalibility
10.4.1 This Agreement shall be interpreted insofar as possible in
accordance with the laws of Denmark. Should one or more of the
provisions of this Agreement cease to apply or be modified as a
result of invalidity, voidability or for other reason this shall
not affect the validity of the remaining provisions of this
Agreement.
10.4.2 If one or more of the provisions of this Agreement are held to be
contrary to the rules of the laws of Denmark or the laws of any
jurisdiction which cannot be dispensed with by agreement, the
Parties agree that the provision(s) shall be modified and shall
apply with such contents as may be validly agreed and that the
remaining provisions of this Agreement shall still be applicable.
10.5 Notices and process agent
10.5.1 All the notices, including service of process, between the
Parties concerning matters arising out of this Agreement shall be
sent by ordinary post or fax and be confirmed by registered
letter within 48 hours after transmission to the following
addresses unless these are changed to another address with a
notice of at least 5 days:
65
For the Sellers: EQT Scandinavia Ltd.
Att.: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Director
▇▇ ▇▇▇ ▇▇▇
National Westminster House
Le ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax (▇▇▇) ▇▇▇▇ ▇▇▇▇▇▇
with a copy to: EQT Partners A/S
Att.: Bjorn ▇▇▇ ▇▇▇▇▇▇, Partner
▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ K
Fax (▇▇▇) ▇▇ ▇▇ ▇▇ ▇▇
For the Buyer: ▇▇▇▇▇ Industries, Inc.
▇▇▇▇ ▇▇▇▇▇, Vice President and
General Counsel
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
Fax (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
66
10.5.2 In all matters arising out of this Agreement, the Sellers shall
vis-a-vis the Buyer act as one party and shall appoint one legal
advisor to represent all of the Sellers in any dispute involving
the Buyer, except that any Seller having a conflict of interest
with one or more of the other Sellers in such dispute may elect
its own legal advisor. The Sellers have hereby appointed EQT
Scandinavia Ltd. as their representative under this Agreement
vis-a-vis the Buyer.
10.6 Binding effect and no assignment
10.6.1 This Agreement shall be binding upon and inure to the benefit of
the Parties and their respective successors.
10.6.2 This Agreement may not be assigned in whole or in part by any
Party without the consent of the other Party or by operation of
law.
10.7 Expenses
Each Party shall bear the fees and other expenses payable to its
own advisors incurred in connection with negotiating, delivering
and consummating this Agreement. The Sellers shall pay the fees
and expenses payable to (1) ▇▇▇▇▇▇ & Company, (2) KPMG ▇.
▇▇▇▇▇▇▇▇▇ and (3) Kromann Reumert incurred by the Sellers and/or
any Group Company in relation to the preparation, negotiation and
consummation of this Agreement. The Buyer shall pay the fees and
ex-
67
penses payable to the auditors auditing the Closing Statement as
set forth in clause 3.1.
10.8 Waiver and amendments
This Agreement may be amended and the terms hereof may be waived
only by written instrument signed by the Parties or in the case
of a waiver, by the Party waiving its rights under this
Agreement.
10.9 Headings
The headings inserted are for convenience and reference only and
shall not be used to construe or interpret this Agreement.
10.10 Interpretation
The Parties have participated jointly in the negotiation and
drafting of this Agreement and the Schedules hereto. In the event
of any ambiguity or question of intent or interpretation arises,
this Agreement and any of the Schedules hereto shall be construed
as if drafted jointly by the Parties and no presumption or burden
of proof shall arise favouring or disfavouring any Party by
virtue of the authorship of any of the provisions of this
Agreement or any of the Schedules hereto.
68
10.11 Survival
Sections 10 (Other Provisions) and clauses 4.2 (Consequences of the
conditions precedent) 6.1.1 and 7.1.1 (Authority), 6.1.2 and 7.1.2
(Organisation and qualification), 8.3 (Restrictive covenant) and 9.8
(Exclusive remedies) shall survive termination of this Agreement
irrespective of the cause of such termination.
10.12 Exclusivity
Effective as from signing of this Agreement and until the
termination of this Agreement, irrespective of the cause of such
termination, the Sellers agree not actively to pursue, including by
way of (re)initiating or continuing negotiations with any other
potential buyer of the Shares or the shares in any of the
Subsidiaries, or to sign any other agreement with any third party
regarding a sale of the Shares or the shares in any of the
Subsidiaries. In case of any breach hereof resulting in the
Agreement being terminated by either Party, the Sellers agree to pay
to the Buyer an amount equal to USD 2,500,000 (Two million five
hundred thousand Dollars of the United States of America) with
addition of any costs and fees payable to the Buyer's external
advisors with respect to services rendered to the Buyer subsequent
to signing of this Agreement pertaining to its consummation.
10.13 Release and waiver
69
Conditional upon Closing the Sellers hereby release the Group from
any and all claims that the Sellers may hold at the Closing Date
against the Group in their capacity as (former) shareholders or
holders of any other equity interests in the Company.
10.14 Governing law and arbitration
10.14.1 This Agreement and any dispute or claim arising out of or in
connection with this Agreement shall be governed by and construed in
accordance with the laws of Denmark.
10.14.2 With exception of any dispute to be finally resolved in accordance
with Section 3, any dispute or claim arising out of or in connection
with this Agreement shall be finally settled in accordance with the
"Rules of procedure of the Danish Institute of Arbitration
(Copenhagen Arbitration)".
The Court of Arbitration shall be composed of three arbitrators. The
Buyer and the Sellers (jointly) shall each appoint one arbitrator
and the Copenhagen Arbitration shall appoint the third arbitrator
who shall be the chairman of the Court of Arbitration. If a Party
has not appointed an arbitrator within 30 days of having requested
or received notice of the arbitration, such arbitrator shall be
appointed by the Copenhagen Arbitration.
The place of arbitration shall be Copenhagen.
70
The language of the arbitration shall be English.
The Court of Arbitration shall award the Parties legal costs and
divide the costs payable to the Court of Arbitration in proportion
to the Court of Arbitration ruling in favour of the claims and
statements made by the Parties.
10.15 Schedules
Schedule 0.1: Direct investors and limited partnerships.
Schedule 0.2: The Management Shareholders.
Schedule 0.3: Consolidated 2000 Accounts.
Schedule 0.4: Principles for calculating the Consolidated
Interest Bearing Net Debt.
Schedule 0.5: Draft Interim Accounts.
Schedule 0.6: Due Diligence Documentation.
Schedule 0.7: Sellers' Knowledge.
Schedule 0.8: Buyer's Knowledge.
Schedule 0.9: Management Subscription Rights and division
of Shares.
Schedule 0.10: Definition of Material Adverse Effect (as
used in Section 4).
Schedule 0.11: Radiometer Agreement.
Schedule 0.12: Subsidiaries.
Schedule 0.13: Treasury Subscription Rights.
Schedule 0.14: Principles for calculating the Working
Capital.
71
Schedule 2.3: Allocation principles and calculation of
the Estimated Purchase Price.
Schedule 2.4: Comfort Letter.
Schedule 5.2.9: Legal opinion forms
Schedule 5.3: Escrow Agreement.
Schedule 6.1.4: Minutes of extraordinary meeting of
shareholders.
Schedule 6.1.9: Registered intellectual property rights.
Schedule 6.1.10: Key employees.
Schedule 6.1.11: Insurance policies.
Schedule 6.1.18: Agreements restricting competition.
Schedule 8.1.2: US lease.
Schedule 8.1.3: Access to the Group pending Closing.
Schedule 9.2.3: Due diligence reports.
10.16 Signatures
This Agreement has been executed in three original copies and one
copy has been given
72
to each of the Buyer, EQT and the Management Shareholders.
Copenhagen, 9 July 2001
For ▇▇▇▇▇ Industries Inc.: On behalf of the direct investors
and the limited partnerships set
forth in Schedule 0.1: For EQT
Scandinavia Ltd.:
--------------------------------- ---------------------------------
On behalf of the Management Shareholders set forth below and in
Schedule 0.2 (according to power of attorney:
------------------------------- -------------------------------
Klaus Kisboll ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------- -------------------------------
Anders Eskling ▇▇▇▇▇▇ ▇▇▇▇▇
73
------------------------------- -------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇ Hjarner ▇▇▇▇▇ ▇▇▇▇▇▇▇ Merrild
74
------------------------------- -------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
▇. ▇▇▇▇▇▇▇▇ Per ▇▇▇▇ 0ding
------------------------------- -------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ F. Ischiguchi
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇▇▇▇ (No. 31 in Schedule 0.2) ▇▇▇▇▇▇ ▇▇▇ (No. 32 in Schedule 0.2)
------------------------------- -------------------------------
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
75
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Jorgen ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
Knud Foldschack ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
76
STRICTLY CONFIDENTIAL
DRAFT
12/12/2001
ADDENDUM 1
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S.
ADDENDUM 1
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S (the "Agreement").
Terms defined in the Agreement shall have the same meaning when used in this
Addendum.
As the process of obtaining and agreeing on the material terms and conditions of
the insurance policies to be taken out by the Sellers cf. clauses 4.1.1.5,
4.1.2.5 and 5.2.10 of the Agreement (the Sellers' Insurance) have been more time
consuming than originally anticipated and as the Sellers have agreed, at their
own cost, to arrange for an insurance being taken out by the Buyer regarding any
losses arising from the insurers of the Sellers' Insurance declining a claim
because of a situation comprised by Exclusion 1 (regarding fraud etc.) of the
Sellers' Insurance, the Parties have agreed to amend the dead-line in clause 4.6
of the Agreement regarding the conditions precedent in clauses 4.1.1.5 and
4.1.2.5 (Insurance) from 3 August 2001 at the latest to 10 August 2001 at the
latest.
2
The other terms and conditions of the Agreement shall remain unaltered.
Each of the Parties shall sign this Addendum and transmit such signed document
by fax to the
3
other Parties (or their Danish counsels) as evidence of its acceptance of the
terms set forth herein.
1 September 2001
For ▇▇▇▇▇ Industries, Inc.: On behalf of the direct investors and limited
partnerships set forth in Schedule 0.1 of the
Agreement.
For EQT Scandinavia Ltd.:
------------------------------- -----------------------------------------------
On behalf of the Management Shareholders set
forth in Schedule 0.2 of the Agreement:
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
According to power of attorney
4
STRICTLY CONFIDENTIAL
DRAFT
12/12/2001
ADDENDUM 2
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S.
ADDENDUM 2
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S (the "Agreement").
Terms defined in the Agreement shall have the same meaning when used in this
Addendum.
As the process of obtaining and agreeing on the material terms and conditions of
the insurance policies to be taken out by the Sellers and the Buyer (at the
Sellers' cost) cf. clauses 4.1.1.5, 4.1.2.5 and 5.2.10 of the Agreement as
amended by Addendum 1 have been more time consuming than anticipated by the
Parties when executing Addendum 1 to the Agreement, the Parties have agreed to
amend the revised dead-line in clause 4.6 of the Agreement regarding the
conditions precedent in clauses 4.1.1.5 and 4.1.2.5 (Insurance) from 10 August
2001 at the latest to 17 August 2001 at the latest.
The other terms and conditions of the Agreement shall remain unaltered.
2
Each of the Parties shall sign this Addendum and transmit such signed document
by fax to the
3
other Parties (or their Danish counsels) as evidence of its acceptance of the
terms set forth herein.
9 September 2001
For ▇▇▇▇▇ Industries, Inc.: On behalf of the direct investors and limited
partnerships set forth in Schedule 0.1 of the
Agreement.
For EQT Scandinavia Ltd.:
-------------------------------- ---------------------------------------------
On behalf of the Management Shareholders set
forth in Schedule 0.2 of the Agreement:
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
According to power of attorney
4
STRICTLY CONFIDENTIAL
ADDENDUM 3
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S.
ADDENDUM 3
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S (the "Agreement").
Terms defined in the Agreement shall have the same meaning when used in this
Addendum.
As the process of obtaining and agreeing on the material terms and conditions of
the insurance policies to be taken out by the Sellers and the Buyer (at the
Sellers' cost) cf. clauses 4.1.1.5, 4.1.2.5 and 5.2.10 of the Agreement as
amended by Addendums 1 and 2 have been more time consuming than anticipated by
the Parties when executing Addendum 1 and 2 to the Agreement, the Parties have
agreed to amend the revised dead-line in clause 4.6 of the Agreement regarding
the conditions precedent in clauses 4.1.1.5 and 4.1.2.5 (Insurance) from 17
August 2001 at the latest to 24 August 2001 at the latest.
The other terms and conditions of the Agreement shall remain unaltered.
2
Each of the Parties shall sign this Addendum and transmit such signed document
by fax to the
3
other Parties (or their Danish counsels) as evidence of its acceptance of the
terms set forth herein.
17 August 2001
For ▇▇▇▇▇ Industries, Inc.: On behalf of the direct investors and limited
partnerships set forth in Schedule 0.1 of the
Agreement.
For EQT Scandinavia Ltd.:
-------------------------------- ----------------------------------------
On behalf of the Management Shareholders
set forth in Schedule 0.2 of the Agreement:
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
According to power of attorney
4
STRICTLY CONFIDENTIAL
ADDENDUM 4
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S.
ADDENDUM 4
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S (the "Agreement").
Terms defined in the Agreement shall have the same meaning when used in this
Addendum.
As the process of obtaining and agreeing on the material terms and conditions of
the insurance policies to be taken out by the Sellers and the Buyer (at the
Sellers' cost) cf. clauses 4.1.1.5, 4.1.2.5 and 5.2.10 of the Agreement as
amended by Addenda 1, 2 and 3 have been more time consuming than anticipated by
the Parties when executing Addenda 1, 2 and 3 to the Agreement, the Parties have
agreed to amend the revised dead-line in clause 4.6 of the Agreement regarding
the conditions precedent in clauses 4.1.1.5 and 4.1.2.5 (Insurance) from 24
August 2001 at the latest to 29 August 2001 at the latest.
The other terms and conditions of the Agreement shall remain unaltered.
2
Each of the Parties shall sign this Addendum and transmit such signed document
by fax to the
3
other Parties (or their Danish counsels) as evidence of its acceptance of the
terms set forth herein.
23 August 2001
For ▇▇▇▇▇ Industries, Inc.: On behalf of the direct investors and limited
partnerships set forth in Schedule 0.1 of the
Agreement.
For EQT Scandinavia Ltd.:
------------------------------- ----------------------------------------
On behalf of the Management Shareholders set
forth in Schedule 0.2 of the Agreement:
--------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
According to power of attorney
4
STRICTLY CONFIDENTIAL
ADDENDUM 5 - EXTENSION OF TIME LIMIT
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S.
ADDENDUM 5
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S (the "Agreement").
Terms defined in the Agreement shall have the same meaning when used in this
Addendum.
As the process of obtaining and agreeing on the material terms and conditions of
the insurance policies to be taken out by the Sellers and the Buyer (at the
Sellers' cost) cf. clauses 4.1.1.5, 4.1.2.5 and 5.2.10 of the Agreement as
amended by Addenda 1 - 4 have been more time consuming than anticipated by the
Parties when executing Addenda 1 - 4 to the Agreement, the Parties have agreed
to amend the revised dead-line in clause 4.6 of the Agreement regarding the
conditions precedent in clauses 4.1.1.5 and 4.1.2.5 (Insurance) from 29 August
2001 at the latest to 31 August 2001 at the latest.
The other terms and conditions of the Agreement shall remain unaltered.
Each of the Parties shall sign this Addendum and transmit such signed document
by fax to the
2
other Parties (or their Danish counsels) as evidence of its acceptance of the
terms set forth herein.
29 August 2001
For ▇▇▇▇▇ Industries, Inc.: On behalf of the direct investors
and limited partnerships set forth
in Schedule 0.1 of the Agreement.
For EQT Scandinavia Ltd.:
___________________________________ _______________________________________
On behalf of the Management Shareholders
set forth in Schedule 0.2 of the Agreement:
______________________________
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
According to power of attorney
3
STRICTLY CONFIDENTIAL
ADDENDUM 5A - EXTENSION OF TIME LIMIT
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S.
ADDENDUM 5A
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S (the "Agreement").
Terms defined in the Agreement shall have the same meaning when used in this
Addendum.
As the process of obtaining and agreeing on the material terms and conditions of
the insurance policies to be taken out by the Sellers and the Buyer (at the
Sellers' cost) cf. clauses 4.1.1.5, 4.1.2.5 and 5.2.10 of the Agreement as
amended by Addenda 1 - 5 have been more time consuming than anticipated by the
Parties when executing Addenda 1 - 5 to the Agreement, the Parties have agreed
to amend the revised dead-line in clause 4.6 of the Agreement regarding the
conditions precedent in clauses 4.1.1.5 and 4.1.2.5 (Insurance) from 31 August
2001 at the latest to 4 September 2001 at the latest.
The other terms and conditions of the Agreement shall remain unaltered.
Each of the Parties shall sign this Addendum and transmit such signed document
by fax to the
2
other Parties (or their Danish counsels) as evidence of its acceptance of the
terms set forth herein.
31 August 2001
For ▇▇▇▇▇ Industries, Inc.: On behalf of the direct investors and limited
partnerships set forth in Schedule 0.1 of the
Agreement.
For EQT Scandinavia Ltd.:
------------------------------- ----------------------------------------
On behalf of the Management Shareholders set
forth in Schedule 0.2 of the Agreement:
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
According to power of attorney
3
STRICTLY CONFIDENTIAL
12 DECEMBER 2001
ADDENDUM 6
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S.
ADDENDUM 6
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S (the "Agreement").
Terms defined in the Agreement shall have the same meaning when used in this
Addendum 6 (the "Addendum").
Attached to the Agreement as Schedule 0.1 is a list of the direct investors and
limited partnerships of which EQT Scandinavia Ltd. is the investment manager and
general partner, respectively. Due to the fact that some of the direct investors
and limited partnerships have changed their names, attached to this Addendum is
a revised Schedule 0.1 comparing the former and the present names of the direct
investors and limited partnerships. Said revised Schedule 0.1 shall as of
signing of this Addendum replace Schedule 0.1 of the Agreement to the effect
that each of the Sellers referred to either under its former or present name
shall be deemed to be included in the definition of Sellers.
2
For the avoidance of doubt and for clarification purposes only EQT Scandinavia
Ltd. has below outlined the background for each of the changes to the names of
the direct investors and limited partnerships as listed in Schedule 0.1 to this
Addendum.
1. SCANDINAVIAN EQUITY PARTNERS LP I - EQT SCANDINAVIA I LP
Scandinavian Equity Partners LP I has changed its name to EQT
Scandinavia I LP.
2. SCANDINAVIAN EQUITY PARTNERS ▇▇ ▇▇ - EQT SCANDINAVIA I ▇▇ ▇▇
Scandinavian Equity Partners ▇▇ ▇▇ has changed its name to EQT
Scandinavia I ▇▇ ▇▇.
3. SE-BANKEN ▇▇▇▇▇▇ ▇▇ - SEB LUX (F) - VARLDENFOND
The Shares registered as held by ▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ were actually
subscribed for by ▇-▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ on behalf of ▇-▇ ▇▇▇▇▇▇▇
Varldenfond. Thus, the latter should have been registered as shareholder
of said Shares. ▇-▇ ▇▇▇▇▇▇▇ Varldenfond is a misspelling of ▇-▇ ▇▇▇▇▇▇
Fund Varlden. ▇-▇ ▇▇▇▇▇▇ Fund Varlden has changed its name to SEB Lux (F)
- Varldenfond.
4. SE-BANKEN FUND VARLDEN - SEB LUX (F) - VARLDENFOND
▇-▇ ▇▇▇▇▇▇ Fund Varlden has changed its name to SEB Lux (F) -
Varldenfond.
3
5. ALMANNE PENSIONSFONDEN, FJARDE FONDSST - FJARDE AP-FONDEN
Allmanne Pensionsfonden, Fjarde Fondsstyrelsen has changed its name to
Fjarde AP-fonden.
6. UNI STOREBRAND LIVSFORSIKRING A/S - STOREBRAND KAPITALFORVALTNING AS
UNI Storebrand Livsforsikring A/S has changed its name to Storebrand
Livsforsikring AS.
7. FORENINGSBANKEN ALLEMANDSFOND I AND II - ROBUR ALLEMANDSFOND V
Foreningsbanken Allemandsfond I and II have merged and the new name of
the merged entity is Roburs Allemandsfond V.
8. BG BANK A/S - DANSKE BANK A/S
BG Bank A/S has merged with Danske Bank A/S with Danske Bank A/S as the
continuing company.
4
9. FORENINGSBANKEN FORSAKRING LIVSFORS. AB - LRF FORSAKRING
LIVSFORSAKRINGSAKTIEBOLAG
Foreningsbanken Forsakring Livforsakringsaktiebolag has changed its name
to LRF Forsakring Livforsakringsaktiebolag.
10. ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ subscribed for nominal DKK 16.500 Shares in Struers Holding
A/S. Thus, the registration of ▇▇▇▇▇▇ ▇▇▇▇▇ as the shareholder of said
Shares is due to a mistake.
11. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ has changed her name to ▇▇▇ ▇▇▇▇▇▇▇▇.
12. SCANDINAVIAN EQUITY PARTNERS LIMITED - EQT SCANDINAVIA LTD.
Scandinavian Equity Partners Limited has changed its name to EQT
Scandinavia Ltd.
The Sellers shall cause the register of shareholders of the Company being
amended prior to Closing to reflect the changes set forth in 1 - 12 above and
shall cause EQT Scandinavia Ltd. to amend its list of direct shareholders who
holds shares in the Company in accordance with 3 - 12 above (the "List").
5
The Sellers shall cause fax copies of revised legal opinions rendered by Ozannes
and ▇▇ ▇▇▇▇▇▇, respectively, to be delivered to the Buyer prior to Closing and
such legal opinions shall include and be based upon the List. Original copies of
said legal opinions shall be delivered by the Sellers to the Buyer no later than
7 September 2001.
The other terms and conditions of the Agreement shall remain unaltered.
Each of the Parties shall sign this Addendum and transmit such signed document
by fax to the other Parties (or their Danish counsels) as evidence of its
acceptance of the terms set forth herein.
31 August 2001
For ▇▇▇▇▇ Industries, Inc.: On behalf of the direct investors and limited
partnerships set forth in Schedule 0.1.
For EQT Scandinavia Ltd.:
------------------------------- ---------------------------------------------
On behalf of the Management Shareholders
set forth in Schedule 0.2 of the Agreement:
6
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
According to power of attorney
7
STRICTLY CONFIDENTIAL
31-08-01
ADDENDUM 7
to the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S
ADDENDUM 7
BETWEEN EQT Scandinavia Limited acting as the investment manager for
the group of direct investors and as the general partner for
the limited partnerships set forth in Schedule 0.1 (the direct
------------
investors and the limited partnerships are hereinafter jointly
referred to as "EQT"),
the persons set forth in Schedule 0.2 (hereinafter jointly
------------
referred to as the "Management Shareholders"),
▇▇▇▇▇ Industries, Inc.
(IRS employer identification No. 51-026 3969),
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
(hereinafter referred to as "▇▇▇▇▇")
AND JUT NR. 2192 ApS changing its name to
▇▇▇▇▇ Industries Denmark ApS
(CVR-No. 26 13 25 76)
Valhojs Alle 176
2610 ▇▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇
(hereinafter referred to as "NewCo")
to the Share Sale and Purchase Agreement dated 9 July 2001 between EQT, the
Management Shareholders and ▇▇▇▇▇ regarding Struers Holding A/S.
WITNESSETH, that
WHEREAS, EQT, the Management Shareholders and ▇▇▇▇▇ have entered into a Share
Sale and Purchase Agreement which Agreement contemplates the purchase by ▇▇▇▇▇
of the Shares and Management Subscription Rights issued by Struers Holding A/S
subsequent to the satisfaction or waiver of the conditions precedent set forth
in the Agreement;
WHEREAS, prior to the satisfaction or waiver of all the conditions precedent to
Closing, ▇▇▇▇▇ has requested that ▇▇▇▇▇ is substituted by NewCo as the Buyer of
the Shares and Management Subscription Rights;
WHEREAS, NewCo is a private limited Company (in Danish "Anpartsselskab")
incorporated under the laws of Denmark with its registered address at ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
WHEREAS, ▇▇▇▇▇ owns directly the entire issued and outstanding share capital in
NewCo, which share capital represents all the equity interests in NewCo, and
▇▇▇▇▇ has the right to elect the sole manager (no board of directors are
elected) of NewCo;
3
WHEREAS, the Parties and NewCo have agreed to substitute NewCo for ▇▇▇▇▇ as
Buyer under the Agreement upon the terms set forth herein;
NOW, THEREFORE, on the basis of the representations, warranties, Guarantee,
Indemnity and agreements contained in this Addendum, it is hereby agreed as
follows:
DEFINITIONS
For the purpose of this Addendum, unless the context otherwise requires, terms
defined in the Share Sale and Purchase Agreement dated 9 July 2001 regarding
Struers Holding A/S shall have the same meaning when used in this Addendum and
the term
"Addendum" means this Addendum 7 including all the Schedules hereto;
"Agreement" means the Share Sale and Purchase Agreement dated 9 July 2001
between EQT, the Management Shareholders and ▇▇▇▇▇ as well as all Schedules
thereto, including the final Escrow Agreement, and any and all amendments
thereof whether present or future;
"Claim" shall have the meaning set forth in clause 3.5;
"Guarantee" shall have the meaning set forth in clause 3.1;
"Guaranteed Obligations" shall have the meaning set forth in clause 3.1;
4
"Indemnity" shall have the meaning set forth in clause 3.2;
"Indemnified Obligations" shall have the meaning set forth in clause 3.2.
Unless the context otherwise requires, references to the singular number shall
include references to the plural number and vice versa, and references to
natural persons shall include corporate entities and bodies.
1. CHANGE OF THE IDENTITY OF BUYER
1.1 Effective as from the signing of this Addendum and subject to the terms
hereof, NewCo shall replace ▇▇▇▇▇ as Buyer under the Agreement with the
intention and effect that NewCo shall be, and shall have all the rights
and all of the obligations and liabilities of, the Buyer under the
Agreement subject to the terms thereof.
1.2 For purposes of this Addendum and the Agreement
1. any investigations, actions, doings and amendments performed or made
by ▇▇▇▇▇ or on its behalf, including, but not limited to, the due
diligence review of the Group and the participation in the management
presentations, and meetings with the management and auditors of the
Group,
2. any omissions committed or waivers made by ▇▇▇▇▇ or on its behalf,
3. any Knowledge of or disclosure to ▇▇▇▇▇, and
5
4. any breach by ▇▇▇▇▇ of any of its obligations,
representations and warranties, covenants and agreements
under the Agreement,
regarding the preparation, negotiation, execution and planned
consummation of the Agreement shall be regarded as done, committed
or omitted to be done by NewCo as well and to be within the
Knowledge of and disclosed to NewCo as well, as applicable.
1.3 ▇▇▇▇▇'▇ representations and warranties set forth in Section 7 of the
Agreement such as made as of the signing of the Agreement shall
still be regarded as made by ▇▇▇▇▇ in favour of the Sellers and the
Sellers shall still be entitled to exercise any and all remedies
under the Agreement against ▇▇▇▇▇ with respect to said
representations and warranties, as if NewCo had not replaced ▇▇▇▇▇
as the Buyer.
1.4 ▇▇▇▇▇ shall continue to be bound by the terms and obligations of the
following clauses of the Agreement:
8.2 (Further assurances),
8.3.1 (Restrictive covenant),
9.1.1 (General remedies),
10.2 (Confidentiality),
10.3 (Publicity),
10.4 (Severability),
10.5 (Notices and process agent),
10.7 (Expenses),
6
10.9 (Headings),
10.10 (Interpretation),
10.11 (Survival), and
10.14 (Governing law and arbitration).
Said clauses shall also apply to NewCo as the Buyer under the
Agreement.
1.5 ▇▇▇▇▇ shall remain liable towards the Sellers for any and all
breaches of its obligations under the Agreement committed prior to
the signing of this Addendum.
1.6 This Addendum is not intended to, nor shall it result in, any
increase or amendment of the Sellers' obligations, liabilities,
representations and warranties or covenants made to the Buyer under
the Agreement.
2. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇ AND NEWCO
2.1 Effective as of the signing of this Addendum and effective as of
Closing as well ▇▇▇▇▇ and NewCo - jointly and severally - make the
following representations and warranties in favour of the Buyer:
2.1.1 Authority
a) The execution and delivery of this Addendum, including the
Guarantee and Indemnity provided herein, as well as the
consummation of the transactions contemplated hereby and by
the Agreement have been duly
7
authorised by the board of directors of ▇▇▇▇▇, by the management of
NewCo as well as by an extraordinary meeting of shareholders in NewCo,
and no other corporate proceedings on the part of ▇▇▇▇▇ or NewCo will be
necessary to authorise this Addendum or to consummate the transaction
contemplated hereby and by the Agreement.
b) This Addendum, including the Guarantee and Indemnity provided herein,
and the Agreement constitute valid and binding obligations of ▇▇▇▇▇ and
of NewCo enforceable against ▇▇▇▇▇ and NewCo in accordance with their
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency or other similar laws which affect the
enforcement of creditors' rights in general.
c) There are no actions, claims or other proceedings or investigations
pending or threatened against or involving ▇▇▇▇▇ or NewCo, which,
individually or in the aggregate, will prevent ▇▇▇▇▇ and NewCo from
consummating the transactions contemplated by this Addendum and by the
Agreement or affect the validity or enforceability of this Addendum,
including the Guarantee and Indemnity provided herein, and the
Agreement.
d) There is no consent, approval or license from or any filing with or
notice to any governmental or other public authority or any other third
party necessary or required on the basis of the status or circumstances
of ▇▇▇▇▇, NewCo and the Group for the execution and consummation of
8
this Addendum, including the Guarantee and Indemnity provided
herein, and the transactions contemplated hereby and by the
Agreement.
e) The execution, delivery and performance of the Guarantee and the
Indemnity by ▇▇▇▇▇ do not violate any applicable law or
regulations existing at the date of signing of this Addendum or
any provision of the articles of incorporation or the by-laws of
▇▇▇▇▇ or any provision of any charge, deed, contract or other
instrument to which it is a party or which is binding upon it or
its assets.
2.1.2 Organisation and qualification
a) NewCo is a company duly organised, validly existing and in good
standing under the laws of Denmark with all requisite corporate
power and authority to enter into this Addendum and to perform
its obligations hereunder and under the Agreement.
b) ▇▇▇▇▇ is the legal and beneficial owner of the entire issued and
outstanding share capital in NewCo, which share capital
represents all the equity interests in NewCo, and ▇▇▇▇▇ has the
right to elect the sole manager (no board of directors are
elected) of NewCo.
c) Schedule 2.1.2 contains a true, correct and complete copy of
--------------
NewCo's Articles of Association as well as of a copy of the
current extract from the Danish Commerce and Companies Agency
and there are no report-
9
able corporate changes regarding NewCo that has not yet been
registered with the Danish Commerce and Companies Agency.
2.2 ▇▇▇▇▇ and NewCo - jointly and severally - hereby undertake to
indemnify the Sellers for all Losses actually suffered by the
Sellers as a result of any breach of the representations and
warranties of ▇▇▇▇▇ and NewCo under this Addendum.
3. GUARANTEE AND INDEMNITY
3.1 Separate guarantee
▇▇▇▇▇ hereby unconditionally and irrevocably guarantees to the
Sellers, as primary obligor and as for its own debt (in Danish
"selvskyldnerkaution"), the due, full and punctual performance of
all NewCo's present and future obligations, including, but not
limited to payment obligations, and liabilities, representations and
warranties, covenants and agreements under this Addendum and as
Buyer under the Agreement in accordance with the terms thereof and
all claims for damages, costs and expenses and other remedies in
respect of any breach by NewCo thereunder (herein referred to as the
"Guaranteed Obligations") (▇▇▇▇▇'▇ obligations under this clause 3.1
are herein referred to as the "Guarantee").
For the avoidance of doubt, the obligations, liabilities,
representations and warranties, covenants and agreements of NewCo as
Buyer under the Agreement, such as guaranteed by ▇▇▇▇▇ hereunder,
shall be as set forth in the
10
Agreement and NewCo shall have all the rights, defences and remedies
towards the Sellers as Buyer under the Agreement as are stipulated
in the Agreement and as guarantor under the Guarantee ▇▇▇▇▇ shall
have the right to invoke such rights, defences and remedies (on
behalf of NewCo and subject to the terms of the Agreement) as
defence against any Claim under the Guarantee by the Sellers, unless
otherwise specifically set forth in this Addendum.
3.2 Separate indemnity
▇▇▇▇▇ hereby unconditionally and irrevocably undertakes to indemnify
and hold harmless the Sellers from any and all present and future
costs, expenses, claims, damages, liabilities, obligations, Losses
and Taxes resulting from or caused by this Addendum or by the
substitution of ▇▇▇▇▇ with NewCo as Buyer under the Agreement, but
only to the extent that such costs, expenses, claims, damages,
liabilities, obligations, Losses and Taxes would not have occurred
had this Addendum not been executed by the Parties and NewCo (herein
referred to as the "Indemnified Obligations") (▇▇▇▇▇'▇ obligations
hereunder are herein referred to as the "Indemnity").
3.3 Performance and payments
3.3.1 ▇▇▇▇▇, immediately upon the Sellers' first written demand, shall (1)
perform or pay to the Sellers, as applicable, such of the Guaranteed
Obligations as have, at the date of such demand, become due and
payable or are otherwise to be
11
performed by NewCo under the Agreement and which have not been
timely paid or performed and shall (2) indemnify and hold harmless
the Sellers from such Indemnified Obligations as have, at the date
of such demand, been raised against, become payable by or otherwise
occurred by the Sellers.
3.3.2 The Sellers are entitled to make one or more (without limitation as
to number) demands under the Guarantee and under the Indemnity.
3.3.3 All payments by ▇▇▇▇▇ under the Guarantee and/or the Indemnity shall
be made in full without any set-off, counterclaim or other deduction
or withholding of any kind, unless such set-off, counterclaim or
other deduction is made with respect to a connected claim (in Danish
"et konnekst krav") and then only to the extent that the ordinary
Danish principles regarding set-off are complied with.
3.4 No discharge etc.
3.4.1 The Guarantee and Indemnity shall not be discharged or affected by
1. any total or partial invalidity or unenforceability of the
obligations and liabilities of NewCo or any other person
under the Agreement or any document or agreement relating
thereto,
2. any default by NewCo or any other person under the Agreement
or any document or agreement relating thereto including, but
not limited to, any shortfall in payments from or lack of
performance by NewCo,
12
3. any granting of time or other indulgences or without limitation any
extension, renewal, acceptance, forbearance or release in respect of any
liabilities or obligations under the Agreement or any document or
agreement relating thereto,
4. any waiver or release of any right of the Sellers, NewCo and/or ▇▇▇▇▇,
5. any modification or extension of or variation to the terms of the
Agreement or any document or agreement relating thereto,
6. any transfer or assignment of rights and obligations under the Agreement,
7. any corporate reorganisation, reconstruction, dissolution, merger,
acquisition or by any other alteration in the corporate existence or
structure of NewCo, ▇▇▇▇▇ the Group or any other person,
8. any composition or arrangement made by the Sellers or any of them with
NewCo, the Group or any successor or assignor,
9. any modification or abstention from perfecting or enforcing any right
held hereunder or under the Agreement or any other document or agreement
relating thereto by the Sellers from or against NewCo, the Group, ▇▇▇▇▇
or any other person,
13
10. any sale, transfer or assignment by ▇▇▇▇▇ of any of its shares or
voting rights in NewCo or by NewCo of any of the Shares and
Management Subscription Rights in the Company,
11. any other act or omission or act of any kind by the Sellers or
any of them and/or NewCo, the Group, ▇▇▇▇▇ or any other person or
any other circumstances whatsoever which might constitute a legal
or equitable discharge of ▇▇▇▇▇, it being the intention of ▇▇▇▇▇
that the Guarantee and the Indemnity shall be absolute and
unconditional in any and all circumstances.
3.4.2 Notwithstanding anything to the contrary set forth herein, in case
any discharge (including by lapse of time as set forth in clause 3.6)
or arrangement is made in whole or in part on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency (invalidated (in Danish "omstodt")),
liquidation or otherwise without limitation, the liability of ▇▇▇▇▇
under the Guarantee and the Indemnity will continue as if the
discharge or arrangement had not occurred.
3.5 Claims
3.5.1 Any claims made by the Sellers under this Addendum (herein referred
to as a "Claim") shall be notified in writing to ▇▇▇▇▇ and/or NewCo,
as applicable, as follows:
14
1. Each Claim shall state its specific grounds and the estimated
amount claimed and shall, to the extent available to the Sellers,
be accompanied by all written documentation necessary to
reasonably support the Claim,
2. each Claim shall be notified in writing by the Sellers to ▇▇▇▇▇
and/or NewCo, as applicable, no later than 45 days after the
Sellers have become aware of all material circumstances giving
rise to the Claim.
3.5.2 If ▇▇▇▇▇ and/or NewCo, as applicable, dispute a Claim notified by the
Sellers under this Addendum, the Sellers shall request arbitration in
accordance with clause 4.8 and serve their written complaint (in
Danish "klageskrift") on ▇▇▇▇▇ and/or NewCo, as applicable, within 45
days after the Sellers have received notice that ▇▇▇▇▇ and/or NewCo,
as applicable, dispute the Claim. The written complaint shall include
the Sellers' statement of its Claim and all material arguments and
documents supporting the Claim.
The Parties and NewCo, as applicable, shall use all reasonable
efforts to ensure that the arbitration procedure shall progress as
swiftly as possible and the award shall, to the extent possible, be
made within 6 months of the notice of arbitration has been given.
3.6 Dead-line for submission of Claims
Subject to the terms of clause 3.4.2, ▇▇▇▇▇ shall have no liability
under the Guarantee and the Indemnity with respect to any Claim
notified to ▇▇▇▇▇ subsequent to 60 months after the Closing Date,
provided, however, that ▇▇▇▇▇
15
shall be liable for any Claim resulting from Taxes to be paid by the
Sellers comprised by the Indemnified Obligations, if such Claim has
been duly notified to ▇▇▇▇▇ prior to 45 days after the expiry of the
relevant local statute of limitation applicable to such Taxes.
3.7 Third party claims
3.7.1 In the event any third party asserts any claim, based on which a
Claim is notified to ▇▇▇▇▇, ▇▇▇▇▇ shall have the right, at its
election, risk and expense, to control the defence of such third
party claim by giving notice to the Sellers within 30 days from the
date of the Claim having been notified to ▇▇▇▇▇.
3.7.2 The relevant Seller(s) shall co-operate with ▇▇▇▇▇ and with any
counsel appointed by ▇▇▇▇▇. Such third party claims and any
counterclaims shall not be settled and no liability shall be admitted
without the prior written consent of ▇▇▇▇▇, such consent not to be
unreasonably withheld or delayed.
3.7.3 ▇▇▇▇▇ shall keep the Sellers informed in reasonable detail during the
defence of any such third party claim.
3.7.4 Without the prior consent of the Sellers, ▇▇▇▇▇ shall not be entitled
to enter into any settlement agreement with the third party in the
name of the relevant Seller(s) nor to make any concessions on behalf
of the Sellers. If the Sellers withhold their consent to a settlement
proposal etc. submitted by ▇▇▇▇▇, the Sellers' Claim against ▇▇▇▇▇
shall be reduced to the amount by which ▇▇▇▇▇ would otherwise have
been entitled to release itself from the Sellers' Claim.
16
3.8 Mitigating matters
The Sellers shall use all reasonable efforts to mitigate any Loss for
which a Claim is notified to ▇▇▇▇▇ and/or NewCo, as applicable.
4. OTHER PROVISIONS
4.1 Entire Addendum
This Addendum supersedes any oral or prior written agreement or
understanding between the Parties and NewCo with respect to the
substitution of ▇▇▇▇▇ by NewCo as Buyer under the Agreement.
4.2 Severability
4.2.1 This Addendum shall be interpreted insofar as possible in accordance
with the laws of Denmark. Should one or more of the provisions of
this Addendum cease to apply or be modified as a result of
invalidity, voidability or for other reason this shall not affect the
validity of the remaining provisions of this Addendum.
4.2.2 If one or more of the provisions of this Addendum are held to be
contrary to the rules of the laws of Denmark or the laws of any
jurisdiction which can not be dispensed with by agreement, the
Parties and NewCo agree that the provision(s) shall be modified and
shall apply with such contents as may be validly
17
agreed and that the remaining provisions of this Addendum shall still
be applicable.
4.3 Notices
All the notices between the Parties concerning matters arising out of
this Addendum shall be made as set forth in clause 10.5 of the
Agreement. Thus, any notice to be made to ▇▇▇▇▇ and/or NewCo shall be
sent to ▇▇▇▇▇ Industries, Inc. as set forth in said clause of the
Agreement.
4.4 Binding effect and no assignment
4.4.1 This Addendum shall be binding upon and inure to the benefit of the
Parties and NewCo and their respective successors.
4.4.2 This Addendum may not be assigned in whole or in part by any Party or
by NewCo without the consent of the other signatories of this
Addendum or by operation of law.
4.5 Expenses
The Parties and NewCo shall bear the fees and other expenses payable
to its own advisors incurred in connection with negotiating,
executing and delivering this Addendum. ▇▇▇▇▇ shall pay the costs and
expenses necessary to deliver the legal opinion prepared by Powell,
Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP delivered to the Sellers
simultaneously with the signing of this Addendum.
18
4.6 Waiver and amendments
This Addendum may be amended and the terms hereof may be waived only
by written instrument signed by the Parties and NewCo or in case of
a waiver by the Party or NewCo, if relevant, waiving its rights
under this Addendum.
4.7 Interpretation
The Parties and NewCo have participated jointly in the negotiation
and drafting of this Addendum. In the event of any ambiguity or
question of intend or interpretation arises, this Addendum shall be
construed as if drafted jointly by the Parties and NewCo and no
presumption or burden of proof shall arise favouring or disfavouring
any Party or NewCo by virtue of the authorship of any of the
provisions of this Addendum.
4.8 Governing law and arbitration
4.8.1 This Addendum and any dispute or claim arising out of or in
connection with this Addendum shall be governed by and construed in
accordance with the laws of Denmark.
4.8.2 Any dispute or claim arising out or in connection with this Addendum
shall be finally settled in accordance with the "Rules of Procedure
of the Danish Institute of Arbitration (Copenhagen Arbitration)".
19
The Court of Arbitration shall be composed of three arbitrators.
▇▇▇▇▇ and NewCo (acting jointly) and the Sellers (acting jointly)
shall each appoint one arbitrator and the Court of Arbitration shall
appoint the third arbitrator who shall be the chairman of the Court
of Arbitration. If an arbitrator has not been appointed within 30
days of a Party or NewCo having requested or received notice of
arbitration, such arbitrator shall be appointed by the Court of
Arbitration.
The place of arbitration shall be Copenhagen.
The language of the arbitration shall be English.
The Court of Arbitration shall award the Parties and NewCo legal
costs and divide the costs payable to the Court of Arbitration in
proportion to the Court of Arbitration ruling in favour of the
claims and statements made by the parties involved in the process.
4.8.3 If more arbitration proceedings are commenced under this Addendum
and the Agreement, the Court of Arbitration shall be entitled, upon
the request of any party to any of the arbitration proceedings,
1. to consolidate or cumulate any dispute between the Parties
and NewCo under said documents and/or
20
2. to allow any party to any of said documents to join in in any
such dispute as a party,
provided, however, that the Court of Arbitration in making its
decision shall apply the principles of law set out in the Danish Act
on Civil Procedure with such modifications as may be necessitated by
the fact that these principles are to be applied to arbitration
proceedings.
4.8.4 Nothing set forth in this Addendum shall limit the right of the
Sellers to initiate proceedings against ▇▇▇▇▇ or any of its assets
in any court of law, bailiff office or other forum for purpose of
enforcing the Guarantee and/or the Indemnity.
4.9 Schedules
Schedule 0.1: Direct investors and limited partnerships.
Schedule 0.2: The Management Shareholders.
Schedule 2.1.2: Articles of Association and current extract for
NewCo.
4.10 Signatures
Each of the Parties and NewCo shall sign this Addendum and transmit
such signed document to the other Parties and NewCo, as applicable,
(or to their Danish Counsels) as evidence of its legally binding
acceptance of the terms set forth herein. At Closing this Addendum
shall also be signed in four origi-
21
nal copies and one copy be given to each of EQT, the Management Shareholders,
▇▇▇▇▇ and NewCo.
31 August 2001
For ▇▇▇▇▇ Industries, Inc.: On behalf of the direct investors and the
limited partnership set forth in Schedule 0.1:
For EQT Scandinavia Limited:
----------------------------- ----------------------------------------------
On behalf of the Management For ▇▇▇▇▇ Industries Denmark ApS:
shareholders set forth in
Schedule 0.2 (according to
power of attorney):
----------------------------- ----------------------------------------------
22
STRICTLY CONFIDENTIAL
ADDENDUM 8
to
the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S.
ADDENDUM 8
BETWEEN EQT Scandinavia Limited acting as the investment
manager for the group of direct investors and as the
general partner for the limited partnerships who are
jointly defined as EQT and as representative for the
Management Shareholders (said direct investors,
limited partnerships and persons are hereinafter
jointly referred to as the "Sellers")
AND ▇▇▇▇▇ Industries Denmark ApS
(CVR-no. 26 13 25 76)
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
(hereinafter referred to as the "Buyer")
(The Sellers and the Buyer are hereinafter jointly referred to as the "Parties"
and individually a "Party")
to the Share Sale and Purchase Agreement dated 9 July 2001 regarding Struers
Holding A/S.
WITNESSETH, that
2
WHEREAS, on 22 October 2001 the Sellers have received the Closing Statement such
as audited by State Authorised Public Accountant Morten S. Renge, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and on 23 October 2001 the Sellers have received a break-down of the
calculation of the Consolidated Interest Bearing Net Debt;
WHEREAS, in their Final Notice of Dispute regarding Closing Statement of 30
October 2001 the Sellers have disputed the Closing Statement;
WHEREAS, subsequent to the delivery by the Buyer of the Closing Statement, the
Sellers have been provided with additional information relevant for calculating
the Final Purchase Price;
WHEREAS, on 20 November 2001 the Sellers have commenced the procedure involving
the Independent Accountant pursuant to the terms of Section 3 of the Agreement;
WHEREAS, during a meeting held on 30 November 2001 between representatives of
and advisors to the Buyer and the Sellers, the Parties have agreed on the
calculation of the Final Purchase Price upon certain terms and conditions as set
forth herein;
NOW, THEREFORE, it is hereby agreed as follows:
DEFINITIONS
3
For the purpose of this Addendum, unless the context otherwise requires, terms
defined in the Share Sale and Purchase Agreement dated 9 July 2001 regarding
Struers Holding A/S shall have the same meaning when used in this Addendum.
1. FINAL PURCHASE PRICE
The Parties agree that the Final Purchase Price shall amount to DKK
817,778,000 (Eight hundred and seventeen million seven hundred and
seventy eight thousand Danish Kroner) resulting in an Adjustment Amount
equal to DKK 55,750,000 (Fifty five million seven hundred and fifty
thousand Danish Kroner) payable by the Buyer in favour of the Sellers.
2. SETTLEMENT OF THE ADJUSTMENT AMOUNT
No later than on Friday, 7 December 2001 at 12 a.m. Danish time the Buyer
shall have paid the Adjustment Amount to the Sellers as follows:
1. An amount equal to DKK 11,150,000 (Eleven million one hundred and
fifty thousand Danish Kroner) shall in cash by wire transfer be paid
into the Escrow Account with ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇/▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇,
▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, account number 84 74 877 133 subject to the terms
of the Escrow Agreement.
2. An amount equal to DKK 44,600,000 (Forty four million six hundred
thousand Danish Kroner) shall be paid in cash by wire transfer to the
ac-
4
count of EQT Scandinavia Limited with ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇/▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, account number 84 74 883
273.
The Buyer's payment of the Adjustment Amount shall be irrevocable,
unconditional and without any set-off. The Buyer shall on Friday, 7
December 2001 at 12 a.m. Danish time at the latest provide Kromann
Reumert with written evidence of its timely and due payment of the
Adjustment Amount.
3. FINAL APPROVAL OF COVER NOTES
The wording of the Cover Notes regarding the Confirmations of
Binding such as referred to under B.4 of the Closing Memorandum
executed by the Parties and others on 5 September 2001 is hereby
irrevocably and unconditionally approved by the Buyer. EQT
Scandinavia Limited undertake to arrange for the delivery by AON
Limited to ▇▇▇▇-▇▇▇▇▇ Dragsted representing the Buyer of the
original signed copy of the Cover Note pertaining to the Warranty
and Indemnity Insurance - Purchaser's Indemnity and a copy of the
signed Cover Note issued to the Sellers pertaining to the Warranty
and Indemnity Insurance - Vendors' Indemnity. Said delivery shall be
made no later than on Friday, 7 December 2001. On Thursday, 6
December, at 3 p.m. Danish time at the latest the Sellers shall have
arranged for the delivery to ▇▇▇▇-▇▇▇▇▇ Dragsted of a fax copy of
said Cover Notes.
5
4. NON-EXISTENCE OF CLAIMS
The Buyer acknowledges that no Claims exist nor can be raised against the
Sellers regarding the following items (as discussed during the meeting on
30 November 2001 on the basis of the Closing Statement Reconciliation
attached as Schedule 1) or the accounting principles, practices,
----------
procedures and assessments historically used and made by the Group for
classifying, calculating and assessing such items, including, but not
limited to, in the Consolidated 2000 Accounts:
1. Warranty obligations, including provisions regarding the Exotom
retrofit obligation;
2. Errors in excess and obsolete inventory reserves;
3. Unrecorded liabilities on US maintenance contracts;
4. Federal US taxes payable calculated under wrong methodology
(claiming a deduction for state taxes accrued rather than state
taxes paid);
5. The classification and assessment of laboratory equipment and
demonstration equipment;
6. The classification and assessment of government grants.
6
5. FEES AND COSTS TO THE INDEPENDENT ACCOUNTANT
As stated in clause 3.3 of the Agreement the fees and expenses
charged by the Independent Accountant shall be divided equally
(50/50) between the Parties. EQT Scandinavia Limited shall on behalf
of the Sellers settle any amount payable by the Sellers to the
Independent Accountant.
6. CONDITIONS
Sections 1 (Final Purchase Price), 2 (Settlement of the Adjustment
Amount), and 4 (Non-existence of Claims) are conditioned upon the
Adjustment Amount being timely and duly paid in favour of the
Sellers in accordance with the terms of this Addendum. If said
settlement of the Adjustment Amount is not made, the Sellers may
terminate Sections 1 (Final Purchase Price), 2 (Settlement of the
Adjustment Amount), and 4 (Non-existence of Claims) with immediate
effect by written notice to the Buyer. In case of such termination
the Parties shall be deemed not to have agreed on the Final Purchase
Price and on the Adjustment Amount and the Parties shall have the
right to continue enforcing the dispute resolution mechanisms
pursuant to the terms of the Agreement.
7. OTHER TERMS
The other terms of the Agreement shall remain unaltered.
7
8. SCHEDULES
Schedule 1: Closing Statement Reconciliation.
9. SIGNATURES
Each of the Parties shall sign this Addendum and transmit such signed
document by fax to the Danish legal counsel of the other Party
(▇▇▇▇-▇▇▇▇▇ Dragsted and Kromann Reumert) as evidence of their acceptance
of the terms and conditions set forth herein.
4 December 2001
For ▇▇▇▇▇ Industries Denmark ApS: On behalf of the Sellers
For EQT Scandinavia Ltd.:
----------------------------------- ----------------------------------------
8
STRICTLY CONFIDENTIAL
SHARE SALE AND PURCHASE AGREEMENT
regarding
Struers Holding A/S