Exhibit 2.1
110 Fetter Lane London EC4A 1AY +44 20 7903 1000 main tel +44 20 7903 0990 main fax weil.com |
EXECUTION VERSION
STRICTLY CONFIDENTIAL
April 7, 2022
SALE AND PURCHASE AGREEMENT
relating to the sale of all of the Units in
BEIT HOLDINGS, LLC
between
CAYMAN NIH VI BEIT HOLDINGS, L.P.
as Seller
and
LITTELFUSE, INC.
as Buyer
TABLE OF CONTENTS
1 | SALE AND PURCHASE | 1 |
2 | CONSIDERATION AND LEAKAGE | 1 |
3 | CONDITIONS AND TERMINATION | 2 |
4 | PRE-COMPLETION UNDERTAKINGS | 5 |
5 | COMPLETION | 8 |
6 | POST-COMPLETION UNDERTAKINGS | 10 |
7 | WARRANTIES | 13 |
8 | LIMITATIONS ON LIABILITY | 15 |
9 | CONFIDENTIALITY AND ANNOUNCEMENTS | 17 |
10 | ASSIGNMENT | 17 |
11 | ENTIRE AGREEMENT | 18 |
12 | NO RECOURSE AGAINST SELLER RELATED PERSONS | 18 |
13 | GENERAL | 19 |
SCHEDULE 1 THE SELLER | 25 | |
SCHEDULE 2 DETAILS OF THE COMPANY AND THE SUBSIDIARIES | ||
SCHEDULE 3 RESTRICTED MATTERS | 26 | |
SCHEDULE 4 PERMITTED LEAKAGE | 29 | |
SCHEDULE 5 DEFINITIONS AND INTERPRETATION | 30 | |
SCHEDULE 6 EMPLOYEE NON-SOLICIT | ||
SCHEDULE 7 INDEMNIFIED MATTERS | ||
SCHEDULE 8 RELATED PARTY AGREEMENTS |
Agreed form documents
1. | Announcement |
2. | EV to Equity Bridge |
3. | Locked Box Accounts |
4. | Resignation letters for the Resigning Director |
5. | Discharge of liability for the Resigning Director |
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THIS AGREEMENT (the “Agreement”) is made on 7 April 2022 between the following parties
(2) | LITTELFUSE, INC., a corporation incorporated in Delaware, whose registered office is at 1209 Orange Street, Wilmington, New Castle County, Delaware, 19801, United States of America (the “Buyer”). |
WHEREAS
(B) | The Seller has agreed to sell and the Buyer has agreed to buy the Units for the Consideration and on the other terms and subject to the conditions of this Agreement. |
IT IS AGREED as follows
1 | SALE AND PURCHASE |
On the terms of this Agreement and subject to the Conditions, the Seller shall sell the Units with full title guarantee and free from all Encumbrances, and the Buyer shall purchase the Units with all rights attaching to them as at Completion.
2 | CONSIDERATION AND LEAKAGE |
Consideration
2.1 | The consideration payable by the Buyer to the Seller for the Units is an amount in cash equal to: |
(a) | USD 349,582,600; plus |
(b) | an amount equal to USD 68,650 per calendar day for the period from (and including) the Locked Box Date up to (but excluding) the Completion Date; less |
(c) | an amount equal to the aggregate of (i) Notified Leakage (if any) and (ii) the amount deducted from the Consideration pursuant to Clause 6.3 (if any), |
(the “Consideration”).
Consideration settlement
2.2 |
Leakage
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2.5 |
2.6 | Any notice given pursuant to Clause 2.5 shall specify in reasonable detail the legal and factual basis of the Leakage Claim and the Buyer’s good faith estimate of the amount of Leakage to which such Leakage Claim relates. |
2.7 | The Seller shall procure that any person to which any or all of the Consideration is distributed, directly or indirectly, shall take such distribution subject to the Seller’s obligations to pay to the Buyer any Leakage pursuant to Clause 2.3 (Consideration and Leakage) and be obligated to return such distribution if necessary to permit Seller to comply with its obligations under Clause 2.3 (Consideration and Leakage). |
3 | CONDITIONS AND TERMINATION |
Conditions
3.1 |
(a) | C&K Holdings Inc. having obtained either: |
(ii) | a decision from the French Minister of Economy indicating that the acquisition referred to in this Clause 3.1(a)(i) did not fall within the scope of the provisions of article L. 151-3 of the French Monetary and Financial Code, |
(the “Seller Condition”);
(b) |
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(d) | the German Federal Ministry for Economic Affairs and Climate Action (Bundesministerium für Wirtschaft und Klimaschutz (“BMWK”)) having: |
(i) | formally issued a certificate of non-objection (“Clearing Certificate”) to the Buyer pursuant to Section 58 para. 1 sentence 1 German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung (“AWV”)); |
(ii) | not initiated a formal investigation pursuant to Sections 55 AWV, 55a AWV or 60 AWV in relation to Transaction within two (2) months of receipt of the Buyer’s due application for a Clearing Certificate (Section 58 para. 2 AWV) or the Buyer’s report (Sections 58a para. 2 AWV or 61 AWV); |
(iii) | not initiated or notified the Buyer of the initiation of a formal investigation pursuant to Section 55 AWV or Section 60 AWV in relation to the Transaction within two (2) months of obtaining knowledge of this Agreement (Sections 55 para. 3 AWV or 60 para. 4 AWV, both in conjunction with Section 14a para. 1 no. 1 German Foreign Trade Act (Außenwirtschaftsgesetz (“AWG”)); or |
(iv) | in the event of a proceeding or formal investigation pursuant to Sections 55 AWV, 55a AWV or 60 AWV, either (x) cleared the Transaction pursuant to Section 58a para. 1 AWV or Section 61 AWV or (y) failed to prohibit the Transaction within a period of four (4) months of submission of the complete documentation of the acquisition as specified in Sections 14a para. 1 no. 2 (in conjunction with paras. 6 and 7), 15 para. 3 AWG (58a para. 2 AWV; 59 para. 1 AWV or 62 para. 1 AWV), |
(the “German FDI Condition”);
Any extension or suspension of any procedural time period by the BMWK referred to above shall extend the relevant time period accordingly;
(e) | the Buyer having obtained either: |
(i) | a prior foreign investment authorization (conditional or unconditional) from the French Minister of Economy regarding the Transaction, in accordance with the provisions of articles L. 151-3 and R. 151-1 et seq. of the French Monetary and Financial Code; or |
(ii) | a decision from the French Minister of Economy indicating that the Transaction does not fall within the scope of the provisions of article L. 151-3 of the French Monetary and Financial Code, |
(the “French FDI Condition”, and together with the Regulatory Condition, the German Antitrust Condition and the German FDI Condition, the “Buyer Conditions”).
The Buyer’s obligation to effectuate the Completion of the sale and purchase of the Units is subject to and conditional on the following additional Condition being fulfilled: the Seller having delivered (or having caused to be delivered) to the Buyer copies of the properly completed and duly executed W-8BEN-E Forms referred to in Clause 4.8(c).
Responsibility and conduct
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(a) | to the extent not already made, making all filings in connection with the satisfaction of the Conditions (as applicable), in consultation with the other party, as soon as practicable after the date of this Agreement; |
(b) |
(c) |
3.6 | The Seller and the Buyer (as applicable) shall provide each other (or their advisors) with: |
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provided however that: (A) the Seller and the Buyer shall not be required under paragraph (a) or (b) above to provide the other party with copies of any element of such notifications, filings and other communications which contains information of a commercially sensitive nature without first redacting that element, or providing it only to their external legal counsel on the basis that it will not be shown or otherwise communicated to their client; and (B) the Buyer acknowledges that the Seller has already taken steps prior to the date of this Agreement to satisfy the Seller Condition, including, without limitation, making notifications and/or filings, and/or communication with the French Minister of Economy; and
(c) | access to each other’s advisors appointed in connection with all matters relating to the satisfaction of the Seller Condition or the Buyer Conditions; |
(d) | sufficient advance notice of any meetings with any Governmental Entity or regulatory authority in connection with the Seller Condition or the Buyer Conditions; and |
(e) | where permitted by the relevant Governmental Entity or regulatory authority, the opportunity to have persons nominated by the Seller attend all meetings with any governmental or regulatory authority in connection with the Seller Condition the Buyer Conditions and, where appropriate, to make oral submissions at such meetings provided however that the Seller and the Buyer shall not be required to permit persons nominated by the other party to attend any part of such meetings during which information of a commercially sensitive nature is likely to be disclosed. |
3.7 | The parties shall notify each other in writing promptly after each Condition which it is required to satisfy: |
(a) | has been fulfilled; or |
(b) | ceases to be capable of being fulfilled on or before 5 p.m. London time on the Long Stop Date or the relevant party has reasonable grounds to believe this to be the case. |
Contravention of Applicable Laws
Termination
4 | PRE-COMPLETION UNDERTAKINGS |
Conduct of business
4.1 | During the period from the date of this Agreement to the Completion Date (both dates inclusive), the Seller undertakes: |
(a) | not to transfer any interest in, or grant or incur an Encumbrance on, any of the Units; |
(b) |
(c) |
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in each case unless the Buyer has given its prior written consent (in the case of Clause 4.1(b) or 4.1(c) (Pre-Completion Undertakings) and other than with respect to the Restricted Matters set forth in paragraphs 2 and 3 of Schedule 3 (Restricted Matters), such consent not to be unreasonably withheld, conditioned or delayed).
(a) | any action (or omission to act) which is required by law, court order, regulation or published (or otherwise publicly announced) rules from any Governmental Entity which is applicable to the relevant Group Member; |
(b) | any action where failing to take such action would be in violation of applicable laws (including any competition/antitrust laws and/or foreign investment laws) or the provisions of any existing contract to which the Company or any Group Member is a party; |
(c) | the implementation of any transaction or the taking of any action required or expressly contemplated by any Transaction Document; |
(e) | any matter, action or step undertaken by any member of the Seller’s Group or any Group Member in good faith in response to the Covid-19 pandemic that is commercially reasonable under the circumstances and consistent with industry practices in response to such situation; |
(f) | the incurrence or making of any Permitted Leakage; or |
(g) | any action to the extent that allowance, provision or reserve has been made in the Accounts, the Locked Box Accounts or the EV to Equity Bridge (which, in each case, shall not include any Leakage items). |
Data Room
4.3 | The Seller shall: |
(a) | make available to the Buyer and/or its legal counsel a downloadable archive of the Data Room on or prior to the date of this Agreement; and |
(b) | deliver to the Buyer or its legal counsel at the relevant address stated in Clause 13.12 (or such other address as the Buyer has notified to the Seller in accordance with Clause 13.12) four digital copies of the Data Room within five Business Days of the date of this Agreement, each saved onto a USB stick. |
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Buyer Access
Third-Party Proposals
Termination of Related Party Agreements
Company Filings
4.8 | The Seller shall procure that the Company or the Group Members (as applicable): |
(b) |
(c) | as soon as practicable, provide to the Buyer copies of properly completed and duly executed W-8BEN-E Forms, |
in each case, prior to Completion.
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5 | COMPLETION |
5.3 | At Completion: |
(a) | the Buyer shall: |
(i) |
(ii) |
(b) | the Seller shall and shall cause its applicable Affiliates to: |
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(iv) | deliver (or cause to be delivered) to the Buyer a resignation letter in the agreed form duly executed by each Resigning Director. |
5.4 | If the requirements of Clause 5.3(a) or 5.3(b) (Completion) are not fully complied with at Completion, the Seller (if the Buyer is in default) or the Buyer (if the Seller is in default) may, without prejudice to any other rights or remedies they may have, by notice in writing to the other party: |
(b) | proceed to Completion so far as is practicable; or |
5.5 | All documents and items delivered at Completion pursuant to Clause 5.3 (Completion) shall be held by the recipient to the order of the person delivering the same until such time as Completion shall have taken place pursuant to this Clause 5 (Completion). |
5.6 | Simultaneously with: |
(a) | delivery of all documents and items required to be delivered at Completion (or waiver of such delivery by the person entitled to receive the relevant document or item); and |
(b) | receipt into the Seller’s Account of the Consideration in immediately cleared funds, |
the documents and items delivered pursuant to this Clause 5 (Completion) shall cease to be held to the order of the person delivering them and Completion shall have taken place.
5.8 | All payments to the Seller’s Account under this Agreement, including the payment of the Consideration under Clause 2.2, shall be made by electronic transfer, and payment of the relevant sum in full by this method shall be a good and valid discharge of the obligation to pay that sum (including the Buyer’s obligation to pay the Consideration) for all purposes under this Agreement. |
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6 | POST-COMPLETION UNDERTAKINGS |
Seller Access
(a) | to enable the relevant person to prepare their statutory or management accounts; or |
(b) | for any other Taxation purpose or as required by any applicable law, court of competent jurisdiction, recognised stock exchange or Governmental Entity to whose rules the relevant person is subject. |
Resigning Directors
6.4 | The Buyer undertakes to the Seller to procure that on Completion each Resigning Director is granted a release in the agreed form duly executed by the Company. |
Employee Non-Solicit
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Waiver
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6.10 |
6.11 |
6.13 |
(a) | the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of each stage of such Specified Action; |
(b) | the Controlling Party shall allow the Non-Controlling Party to consult in good faith at the Non-Controlling Party’s expense on the positions taken in such Specified Action; |
(c) | the Controlling Party shall defend such Specified Action diligently and in good faith as if it were the only person affected by such Specified Action; |
(e) |
For purposes of this Clause 6.13, the “Controlling Party” with respect to a Specified Action shall mean Seller unless (1) Buyer is reasonably expected to bear a greater liability as a result of such Specified Action and Buyer provides prompt written notice to Seller of its intent to control such Specified Action and does so assume control of such Specified Action, or (2) the Specified Action (i) seeks non-monetary relief, (ii) involves criminal or quasi-criminal allegations or allegations involving regulatory noncompliance, or (iii) involves an actual or potential conflict of interest, in the good faith judgment of legal counsel of Buyer, that would make it inappropriate for the same counsel to represent the Seller and the Buyer Indemnitees, and in each case only so long as Seller is diligently and in good faith defending the Specified Action. The “Non-Controlling Party” shall mean whichever of Seller or Buyer is not the Controlling Party.
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7 | WARRANTIES |
Seller’s warranties
7.1 | The Seller warrants to the Buyer that: |
(a) | the Seller is validly incorporated or organised (as applicable), in existence and duly registered under the laws of its country of incorporation or organisation; |
(c) | the entry into, and the implementation of the transactions contemplated by, this Agreement and each of the other Transaction Documents by the Seller will not result in a violation or breach of any provision of the memorandum and articles of association or equivalent constitutional documents of the Seller; or a breach of, or give rise to a default under, any contract or other instrument to which the Seller is a party or by which it is bound; |
(e) | in relation to the Seller, no: |
(ii) | no composition, compromise, assignment or arrangement has been made with any of its creditors; |
(iii) | no liquidator, receiver, administrator, administrator, receiver, compulsory manager or other similar officer has been appointed in respect of the Seller or any of its assets; and |
(iv) | no analogous procedure or step to the matters set out in 7.1(e)(i) to (iii) has been taken in any jurisdiction; |
(f) | the Seller is the sole and exclusive legal and beneficial owner of the Units as set out in Schedule 1, free and clear of any Encumbrances, and: |
(i) | such Units constitute the whole of the equity capital of the Company and neither the Seller nor its Affiliates have any direct or indirect interest in the debt or equity capital of any Group Member other than its interest in such Units and the Shareholder Indebtedness; |
(ii) | there are no other agreements, arrangements or instruments representing (or that would entitle any third party to, with or without the delivery of additional consideration) an equity interest in or that derive their value based on the profits of the Company other than the Units; |
(iii) | such Units are fully paid or credited as fully paid; and |
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(iv) | the Seller is entitled to sell and transfer (or procure the sale and transfer of) the full legal and beneficial ownership of such Units to the Buyer free and clear of any Encumbrances on the terms and subject to the conditions of this Agreement. |
(g) | the list of Related Party Agreements set forth on Schedule 8 is a true, correct and complete list of all binding agreements, arrangements or understandings between or among any Group Member, on the one hand, and Seller or any of its Affiliates, on the other hand (other than any employment agreement or arrangement entered into in the ordinary course of business with an officer or employee of any Group Member, in their capacity as such). |
7.2 | The Seller Warranties shall continue in full force and effect notwithstanding Completion. |
7.3 | Each Seller Warranty shall be separate and independent and, save as expressly provided, shall not be limited by reference to any other Seller Warranty. |
Buyer’s warranties
7.4 | The Buyer warrants to the Seller as at the date of this Agreement that: |
(a) | the Buyer has the power and authority required, and has obtained or satisfied all corporate or regulatory approvals or other conditions necessary, to enter into this Agreement, and each of the other Transaction Documents to which it is a party and, subject to satisfaction of the Conditions, to perform fully its obligations under this Agreement, the Transaction Documents in accordance with their respective terms; |
(b) | the entry into, and the implementation of the transactions contemplated by, this Agreement and each of the other Transaction Documents by the Buyer will not result in a violation or breach of any provision of the memorandum and articles of association or equivalent constitutional documents of the Buyer; or a breach of, or give rise to a default under, any material contract or instrument to which the Buyer is a party or by which it is bound; |
(c) | it is acquiring the Units solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof; |
(d) | the Buyer acknowledges that the Units are not registered under the Securities Act of 1933, as amended, or any state securities laws, and that the Units may not be transferred or sold except pursuant to the registration provisions of the Securities Act of 1933, as amended, or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable. The Buyer is able to bear the economic risk of holding the Units for an indefinite period (including total loss of its investment), and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment; |
(e) | this Agreement and each of the other Transaction Documents to be entered into by the Buyer constitute valid and legally binding obligations of the Buyer in accordance with their respective terms; |
(f) | in relation to the Buyer, no: |
(ii) | composition, compromise, assignment or arrangement has been made with any of its creditors; |
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(iii) | liquidator, receiver, administrator, administrator, receiver, compulsory manager or other similar officer has been appointed in respect of the Buyer or any of its assets; and |
(iv) | analogous procedure or step to the matters set out in 7.4(f)(i) to (iv) has been taken in any jurisdiction; and |
(g) | the Buyer will have at Completion cash on hand which is sufficient to enable the Buyer to perform its obligations hereunder, complete the Transaction and the other transactions contemplated by this Agreement and each other Transaction Document, and pay all related fees and expenses, including payment of the Consideration and repayment or refinancing of any indebtedness of the Group due at Completion. |
8 | LIMITATIONS ON LIABILITY |
Maximum liability
8.1 | The maximum aggregate liability of the Seller in respect of all and any: |
(a) | Leakage Claims shall not exceed an amount equal to the amount of Leakage received or deemed received plus any and all costs of collecting the amount of Leakage from the Seller; |
(b) |
(c) |
Time limitations and notice of claims
(a) | six months after the Completion Date, in the case of a Seller Claim relating to a breach of clause 4.1 (Conduct of business); |
(b) | four years after the Completion Date, in the case of a Seller Claim relating to a breach of Clauses 7.1(a) to 7.1(f) (inclusive) (Seller’s warranties); and |
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Contingent liabilities
8.6 | The Seller shall not be liable in respect of any liability which is contingent unless and until such contingent liability becomes an actual liability. |
Buyer’s actions
8.7 |
(a) | pursuant to and in compliance with any Transaction Document; |
(b) | at the written request of the Buyer; or |
(c) | by the Buyer (other than where necessary for the Buyer to comply with applicable Law). |
Change in law
No double recovery
Fraud
No set-off
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9 | CONFIDENTIALITY AND ANNOUNCEMENTS |
9.2 | Other than in the circumstances set out in Clause 9.3(c) (Confidentiality and Announcements), the only public announcement about this Agreement or the Transaction or the subject matter of, or any matter referred to in, this Agreement or any other Transaction Document (including any consideration payable) shall be made pursuant to the Announcement. |
9.3 | Clause 9.1 (Confidentiality and Announcements) does not apply to disclosure of Confidential Information: |
(a) | made public by publication of the Announcement; |
(b) | to a director, officer or employee of a party or an Affiliate of that party or of a Group Member whose function requires him to have the Confidential Information; |
(d) | to an adviser, agent or auditor provided that such disclosure is reasonably necessary in connection with their engagement and is subject to customary confidentiality obligations; |
(e) | to any Tax Authority to the extent reasonably required for the purposes of the Tax affairs of the relevant party or any of its Affiliates; |
(f) | by the Buyer to any broker arranging warranty and indemnity insurance in respect of the warranties set out in the Warranty Deed; or |
(g) | by the Seller to the Sponsor Entity and/or the direct or indirect investors therein on a confidential basis and to the extent reasonably necessary in connection with customary reporting activities. |
10 | ASSIGNMENT |
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10.2 | Following any assignment (or other dealing) by the Buyer pursuant to Clause 10.1 (Assignment), the Seller shall not be under any greater obligation or liability and the Seller shall have no lesser rights than if such assignment or granting of security had never occurred, and the amount of loss or damage recoverable by the assignee shall be calculated as if that person had been originally named as the Buyer in this Agreement (and, in particular, shall not exceed the sum which would, but for such assignment, have been recoverable by the Buyer in respect of the relevant fact, matter or circumstance). |
11 | ENTIRE AGREEMENT |
11.1 | This Agreement and the other Transaction Documents together constitute the entire agreement and understanding of the parties relating to their subject matter and supersede any previous agreement between the parties (whether written or oral) relating to such subject matter. |
11.2 | Each of the parties acknowledges and agrees that, in entering into this Agreement and the other Transaction Documents, it does not rely on, nor has been induced to enter into this Agreement and/or the other Transaction Documents, and will have no remedy in respect of, any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision (whether negligently or innocently made) of any person (whether a party or not) other than as expressly set out in this Agreement or another Transaction Document. |
11.3 | Save as expressly set out in this Agreement, the only right or remedy of any party in relation to any statement, representation, warranty, undertaking, assurance, promise, understanding or other provision set out in this Agreement shall be for breach of this Agreement to the exclusion of all other rights and remedies (including those in tort or arising under statute) and, in respect of any breach of this Agreement, the only remedy shall be a claim for damages and/or equitable relief (including specific performance and/or an injunction) under the terms of this Agreement in respect of such breach. Save as expressly set out in this Agreement, no party shall be entitled to rescind, repudiate or terminate this Agreement in any circumstances whatsoever at any time and each party irrevocably and unconditionally waives any rights of rescission, repudiation or termination it may have which are not expressly set out in this Agreement. |
12 | NO RECOURSE AGAINST SELLER RELATED PERSONS |
Notwithstanding anything that may be expressed or implied in this Agreement, the Buyer acknowledges and agrees that, other than as may be required to enforce a Leakage Claim, the Reverse Equity Commitment Letter or the Covenant and Release Agreement:
(a) | no recourse under this Agreement or other Transaction Document or under any other documents or instruments delivered in connection herewith may be had against any director, officer, agent or employee of the Seller, any direct or indirect holder of any equity interests or securities of the Seller (whether such holder is a limited or general partner, member, shareholder or otherwise), any Affiliate of the Seller, or any direct or indirect director, officer, employee, partner, Affiliate, member, agent, controlling person or representative of any of the foregoing (each such person or entity, an “Seller Related Person”), whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding (including, for the avoidance of doubt, through attempted piercing of the corporate, limited partnership or limited liability company veil or any insolvency proceeding), or by virtue of any statute, regulation or other applicable law; and |
(b) | no liability whatsoever will attach to, be imposed on or otherwise be incurred by any Seller Related Person under this Agreement or any other Transaction Document or any documents or instruments delivered in connection herewith or with the transactions contemplated by this Agreement or any other Transaction Document or for any claim based on, in respect of or by reason of such obligations or by their creation, notwithstanding that the Seller may be a partnership, limited partnership or limited liability company, |
provided that nothing in this Clause 12 shall limit the liability of any Warrantor under the Warranty Deed arising as a result of their own fraud or fraudulent misrepresentation.
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13 | GENERAL |
Certain Tax Matters
(b) | Neither the Buyer nor any of its Affiliates shall be entitled to make, or cause any Group Member to make, an election under Section 336 or 338 of the U.S. Internal Revenue Code (or any comparable election under state, local or foreign law) with respect to the acquisition of the Company or the deemed acquisition of any Group Member, without the prior written consent of the Seller. |
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Public Notice 7 Filing
(g) |
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Illegality and severance
13.2 | If a provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, in any relevant jurisdiction, the legality, validity and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. |
Variation
13.3 | Any variation or amendment of this Agreement will be effective only if it is in writing and signed by or on behalf of the Buyer and the Seller. |
Waiver
13.4 | A delay in exercising, or failure to exercise, any right or remedy under this Agreement does not constitute a waiver of such or other rights or remedies nor will operate so as to bar the exercise or enforcement thereof nor will be treated as an affirmation of this Agreement. No single or partial exercise of any right or remedy under this Agreement will prevent further or other exercise of such other rights or remedies. |
Termination
13.5 | On any termination of this Agreement, the Surviving Provisions will continue in full force and effect but all other continuing rights and obligations of the parties will cease immediately with effect from termination. Termination does not affect the parties’ accrued rights and obligations as at termination or liability for any prior breach. |
Costs
13.6 | Except as otherwise set out in this Agreement, each party will pay its own fees, costs and expenses arising from the negotiation, preparation and implementation of this Agreement, including the fees and disbursements of their respective legal, accountancy and other advisers, provided that the relevant Group Members will pay any such fees, costs and expenses which are Permitted Leakage. |
Rights of third parties
13.8 | A person who is not a party has no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement, provided that: |
(a) |
(b) | Clause 5.7 (Completion) shall be enforceable by each member of the Seller’s Group; |
(c) | Clause 6.1 (Post-Completion Undertakings) shall be enforceable by each of the Seller’s Affiliates; |
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(d) | Clauses 6.2, 6.3 and 6.4 (Post-Completion Undertakings) shall be enforceable by each Resigning Director; |
(e) |
(g) | Clause 12 (No Recourse Against Seller Related Persons) shall be enforceable by each Seller Related Person, |
in each case, subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999. Notwithstanding the Contracts (Rights of Third Parties) Act 1999, this Agreement may be varied or amended without the consent or agreement of any person who is not a party to this Agreement.
Effect of Completion
13.9 | Except to the extent that they have been performed and except where the Agreement provides otherwise, provisions of this Agreement will remain in force after Completion. |
Counterparts
13.10 | This Agreement may be executed in any number of counterparts, each of which when executed and delivered constitutes an original of this Agreement, but all the counterparts will together constitute one and the same agreement. No counterpart will be effective until each party has executed at least one part or counterpart. |
Notices
13.12 | The parties’ addresses and email addresses for the purposes of this Agreement are: |
Seller
Cayman NIH VI Beit Holdings, L.P.
PO Box 309, Ugland House, South Church Street,
George Town, KY1-1104
Grand Cayman, Cayman Islands
For the attention of: Cayman NIH VI Beit Holdings Management, Ltd (as general partner)
Email: alevinson@suncappart.com
with a copy (which shall not constitute notice) to:
Sun European Partners, LLP
2 Park Street, 1st Floor, London W1K 2HX
For the attention of: Antony Levinson
Email: alevinson@suncappart.com
and
Weil, Gotshal & Manges (London) LLP
110 Fetter Lane, London, EC4A 1AY
For the attention of: Marco Compagnoni
Email: Marco.Compagnoni@weil.com
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Buyer
Littelfuse, Inc.
8755 W. Higgins Rd., Suite 500
Chicago, IL 60631
For the attention of: Chief Legal Officer
Email: rstafford@littelfuse.com
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Rosen & Katz
51 W. 52nd Street
New York, NY 10019
For the attention of: Edward D. Herlihy / Mark F. Veblen
Email: EDHerlihy@wlrk.com / MFVeblen@wlrk.com
and
Macfarlanes LLP
20 Cursitor Street
London EC4A 1LT
For the attention of: Tom Rose
Email: Tom.Rose@macfarlanes.com
or such other address or email address as the relevant party notifies to the other parties, which change of address will only take effect if delivered and received in accordance with Clauses 13.11 to 13.13 (General) (inclusive).
13.13 | A notice so addressed will be deemed to have been received: |
(a) | if personally delivered, at the time of delivery; |
(b) | if sent by pre-paid first class post, recorded delivery or registered post, two Business Days after the date of posting to the relevant address; |
(c) | if sent by registered air-mail, five Business Days after the date of posting to the relevant address; and |
(d) | if sent by email, on completion of sending of the email by the sender, save that if the sender receives an automated “undeliverable” response such notice will be deemed not to have been delivered and that if such notice of communication is received after the end of normal working hours (and “normal working hours” will be deemed to be 8.30 a.m. to 5.30 p.m. local time on any Business Day in the country of the recipient), such notice or communication will be deemed to have been received on the next Business Day. |
Service of process
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13.15 | The Seller agrees that the process by which any proceedings are begun in England may be served on it by being delivered to Sun European Partners LLP at 2 Park Street, 1st Floor, London, W1K 2HX. |
13.17 | Clauses 13.14 to 13.16 (General) (inclusive) do not affect any right to serve process in any other manner permitted by law. |
Further information
13.18 | The Buyer agrees that it will provide all information requested in writing by the Seller reasonably required to enable the Seller to comply with its obligations under the Proceeds of Crime Act 2002 and the Money Laundering Regulations, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 whether such obligations apply before Completion or thereafter. |
Exchange Rate
13.19 | In the context of any Leakage Claim or Seller Claim, any amount forming part of: |
(a) | any Leakage amount in respect of such Leakage Claim; or |
(b) | any amount of alleged loss claimed in respect of such Seller Claim, |
and which is denominated in any currency other than USD shall be converted from such currency into USD at the Exchange Rate on the date when the Leakage or such loss is paid pursuant to the relevant Leakage Claim or Seller Claim, respectively.
Governing Law and Jurisdiction
13.20 | This Agreement and all matters (including any contractual or non-contractual obligation) arising from or connected with it are governed by, and will be construed in accordance with, the laws of England. |
13.21 | Each party irrevocably agrees that the courts of England are to have exclusive jurisdiction to settle any dispute, whether contractual or non-contractual, which may arise out of or in connection with this Agreement and that accordingly any proceedings arising out of or in connection with this Agreement shall be brought only in such courts. Each of the parties irrevocably submits and agrees to submit to the jurisdiction of such courts and waives (and agrees not to raise) any objection to proceedings in such courts on the ground of venue or that proceedings have been brought in an inconvenient forum or on any other ground. |
THIS AGREEMENT IS EXECUTED ON THE DATE SHOWN ON THE FRONT OF THIS AGREEMENT
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(1) Seller | (2) Units held | (3) Percentage of all Units in the Company |
Cayman NIH VI Beit Holdings, L.P. PO Box 309, Ugland House, South Church Street, George Town, KY1-1104 Grand Cayman, Cayman Islands | 1,000 | 100% |
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1 Alter any of its articles of incorporation, bylaws or equivalent constitutional documents.
2 | Allot, issue, grant, offer, reduce, repay, buy back, split, subdivide, combine, reclassify or redeem any units, shares or other securities or grant to any person any option or right to call for the issue of any units, shares or other securities or otherwise alter its share capital in any way. |
3 | Recommend, declare, make or pay a dividend or other distribution other than to the Company or a wholly owned subsidiary of the Company. |
4 | Convene any shareholders’ or unitholders’ meeting or circulate any written resolution to its shareholders or unitholders. |
5 | Acquire any securities or other interests of any kind in any entity other than a wholly owned Group Member. |
8 | Other than in the ordinary course of the Group’s business or as otherwise contemplated in the Business Plan, enter into any agreement or incur any commitment involving capital expenditure (other than ordinary course maintenance capital expenditure): |
(a) in excess of USD 500,000 for each individual commitment; and
(b) which, together with all other capital commitments entered into between the date of this Agreement and Completion, exceeds USD 1,000,000.
10 | Commence or settle any litigation or arbitration proceedings where financial exposure of the Group is in excess of USD 500,000 or where such settlement imposes any material injunctive relief or any material restrictions on any Group Member. |
11 | Make any payment, transfer any asset or incur any liability to the Seller or any Connected Person of the Seller. |
12 | Make any change to its method of accounting or any audit practices or change its accounting date, other than any change required by law. |
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14 | Vary the terms of engagement of any of: (i) Lars Brickenkamp; (ii) Cathy Yang; (iii) Jeremy Hebras; (iv); Bruno Prevot; (v) Gary Mountford; (vi) Lars Stegmann; (vii) Guanghua Yang; (viii) Ted Arnstein; or (ix) Craig Thomson. |
15 | Appoint any person as a director or officer of any Group Member or terminate the appointment of any director or officer of any Group Member. |
16 | Create any Encumbrance over any of its assets or undertaking other than liens arising in the ordinary course of business. |
17 | Discharge, forgive, cancel, release, assign or satisfy any Encumbrance, indebtedness or claim or pay any material obligation or liability other than in the ordinary course of business. |
19 | Enter into any arrangement which restricts the freedom of any Group Member to carry on business anywhere in the world. |
20 | Other than in the ordinary course of business, enter into any lease, lease-hire or hire-purchase arrangement or any arrangement under which payment is deferred. |
21 | Other than in the ordinary course of business, vary the terms on which it holds, uses or occupies any of the Properties (as defined in the Warranty Deed), settle any rent review, accelerate or delay the collection or payment of any rent or service charge, or dispose of any of the Properties or any interest in any of the Properties. |
22 | Vary the material terms of or terminate any insurance policy of a Group Member or allow any such insurance policy to lapse. |
23 | Enter into any new business line. |
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25 | Other than dismissals for cause, dismiss any employee earning an annual base salary of USD 150,000 or more or induce such an employee to terminate their employment. |
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27 | Enter into any arrangement with or recognize any trade union, works council, staff association, staff council or similar body. |
28 | Fail to repay any material obligation when due, delay the payment of accounts payable or accelerate the collection of accounts receivable, in each case other than in the ordinary course of business. |
29 | Adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other similar form of reorganization, other than transactions between the Company and any direct or indirect wholly owned Subsidiary or between direct or indirect wholly owned Subsidiaries. |
30 |
31 | Agree, approve, authorize or commit to do any of the foregoing. |
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(b) | Any payments, fees, costs, expenses or other amounts (including tax) to the extent a specific provision, accrual or liability has been expressly made in the Locked Box Accounts and/or listed as a deduction in the EV to Equity Bridge. |
(c) | Any reimbursement of directors and/or management costs and expenses incurred in the ordinary course of business under arrangements or policies in effect as of January 1, 2022. |
(d) | The accrual, compounding and/or any payment of interest on the Shareholder Indebtedness to the extent required by the Shareholder Indebtedness Agreements in effect as of the Locked Box Date. |
(f) | Any Leakage to the extent refunded to the Buyer or the Group in cash prior to Completion without cost or liability to the Buyer or the Group. |
(g) | Any Taxation or amount in respect thereof incurred by any Group Member in connection with any matter referred to in paragraph (a) or (c) through (e) above. |
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1 | DEFINITIONS AND INTERPRETATION |
1.1 | In this Agreement the following terms have the following meanings: |
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“Consideration” | the consideration for the sale and purchase of the Units as specified in Clause 2.1 (Consideration and Leakage); |
“Covenant and Release Agreement” | the covenant and release agreement dated on or around the date hereof, entered into between the Buyer and the Covenantors (as defined therein); |
“Data Room” | the Project Nimbus online data room hosted by Intralinks, as at 02:13am EST on 5 April 2022 as contained in the downloadable archive of the Data Room as made available to the Buyer on 5 April 2022 and on the USB to be delivered under Clause 4.3 (Pre-Completion Undertakings); |
“Disclosed” | has the meaning given to it in the Warranty Deed; |
“Disclosure Letter” | has the meaning given to it in the Warranty Deed; |
“EIS Loans” | has the meaning given to it in limb (c) of the definition of Subject Indebtedness Agreements; |
“Encumbrance” | any charge, mortgage, lien, pledge, option, equity, power of sale or voting, hypothecation, usufruct, retention of title, right of pre-emption, right of first refusal or offer or security interest or an agreement, arrangement or obligation to create any of the foregoing, other than transfer restrictions arising under applicable securities Laws; |
“EUR 1M EIS Loan” | has the meaning given to it in limb (b) of the definition of Subject Indebtedness Agreements; |
“EUR 2.4M EIS Loan” | has the meaning given to it in limb (c) of the definition of Subject Indebtedness Agreements; |
“EV to Equity Bridge” | the enterprise value to equity bridge in respect of the Transaction in the agreed form; |
“Exchange Rate” | in respect of the conversion of any currency into any other currency on any date, the closing mid-point rate for conversion of such currency into such other currency on such date or, if such date is not a Business Day, on the last Business Day before such date, in each case, as set out in the London edition of the Financial Times containing exchange rates applicable to such Business Day; |
“Governmental Entity” | in relation to anywhere in the world, any supra-national, national, state, municipal or local government (including any subdivision, court, administrative agency or commission or other authority thereof) or any quasi-governmental or private body exercising any regulatory, taxing, importing or other governmental or quasi-governmental authority, including the European Union; |
“Group” | the Company and each of its Subsidiaries, particulars of which are contained in Part 1 (The Company) and Part 2 (The Subsidiaries) of Schedule 2, and “Group Member” shall be construed accordingly; |
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“Public Notice 7 Filing Documents” | |
“Regulatory Condition” | has the meaning given in Clause 3.1(b) (Conditions and Termination); |
“Related Party Agreement” | binding agreements, arrangements or understandings between or among any Group Member, on the one hand, and Seller or any of its Affiliates or beneficial owners, on the other hand (other than any employment agreement or arrangement entered into in the ordinary course of business with an officer or employee of any Group Member, in their capacity as such); |
“Relief” | any relief, loss, allowance, exemption, set off, deduction or credit in computing Taxation, or profits, income, or gains for Taxation purposes; |
“Released Causes of Action” | has the meaning given in Clause 6.6 (Waiver); |
“Released Parties” | has the meaning given in Clause 6.6 (Waiver); |
“Releasing Parties” | has the meaning given in Clause 6.6 (Waiver); |
“Restricted Matter” | each of the matters listed in Schedule 3 (Restricted Matters); |
“Resigning Director” | each of Mark Hajduch and Laura Spitoni and any other director of the Company that the Buyer requests (at least five Business Days prior to Completion) to have resign from service as a director; |
“Reverse Equity Commitment Letter” | the reverse equity commitment letter dated on or around the date hereof, between Sun Capital Partners VI, L.P., the Seller and the Buyer; |
“Seller” | has the meaning given to it in Recital (1); |
“Seller Claim” | any claim, proceeding, suit or action against the Seller in respect of any breach of any warranty set forth in this Agreement, and for the avoidance of doubt excluding any Leakage Claim; |
“Seller Condition” | has the meaning given in Clause 3.1 (Conditions and Termination); |
“Seller Representatives” | has the meaning given in Clause 4.6 (Third-Party Proposals); |
“Seller Warranty” | a statement set out in Clause 7.1 (Warranties) and “Seller Warranties” means all such statements; |
“Seller’s Account” | the Seller’s bank account, details of which are: Account name: Sun Capital Partners VI, L.P. Bank: Wells Fargo Bank, N.A. Address: 420 Montgomery Street, San Francisco, CA, 94104 Account number: 4942298290 SWIFT: WFBIUS6S ABA number: 121-000-248 |
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“Seller’s Group” | the Seller and its Affiliates (which includes the Sponsor Entity), and “member of the Seller’s Group” shall be construed accordingly; | |
“Shareholder Indebtedness” | all amounts (including of principal, interest and break costs (if any)) in respect of, the Shareholder Indebtedness Arrangements; | |
“Shareholder Indebtedness Arrangements” | the $44,392,295 in aggregate principal amount of promissory notes due 30 March 2024, issued by Tres Holdings, LLC pursuant to a promissory note grid dated 20 September 2017; | |
“Sponsor Entity” | Sun Capital Partners VI, L.P. and the funds managed or advised by Sun European Partners, LLP and/or its Affiliates, but excluding in any event: (a) any portfolio or investee entity of any of the foregoing; and (b) any fund managed by Sun European Partners, LLP and/or its Affiliates which is not an indirect shareholder of the Seller; | |
“Subject Indebtedness” | all amounts (including of principal, interest, break costs, fees, costs, expenses and indemnity payments) owed by any Group Member under the Subject Indebtedness Agreements; | |
“Subject Indebtedness Agreements” | (a) | the €500,000 in aggregate principal amount of loans under a loan agreement dated 24 October / 1 November 2012, entered into between E.I.S. Electronics GmbH (as borrower) and Commerzbank AG (as lender); |
(b) | the €1,000,000 in aggregate principal amount of loans under a loan agreement dated 30 July 2020, entered into between E.I.S. Electronics GmbH (as borrower) and Weser-Elbe Sparkasse (as lender) (the “EUR 1M EIS Loan”); | |
(c) | the €2,400,000 in aggregate principal amount of loans under a loan agreement dated 4 January 2022 / 23 February 2022 between E.I.S. Electronics GmbH (as borrower) and Weser-Elbe Sparkasse (as lender) (the “EUR 2.4M EIS Loan” and together with the EUR 1M EIS Loan, the “EIS Loans”); and | |
(d) | the €10,000,000 in aggregate principal amount under a term loan agreement dated 14 May 2020, entered into among C&K Components SAS (as borrower), Société Générale (as lender), and the French State (as guarantor); | |
“Subsidiaries” | each of the subsidiary undertakings of the Company, particulars of which are contained in Part 2 (The Subsidiaries) of Schedule 2, and “Subsidiary” shall be construed accordingly; | |
“Surviving Provisions” | Clauses 1 (Interpretation), 3.9 (Termination), 5.4(c) (Completion), 8.1 (Limitations on liability), 9 (Confidentiality and announcements), 11 (Entire agreement) and 13 (General); |
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“Units” | the authorised capital stock of the Company, details of which are set out in Part 1 (The Seller) of Schedule 2; | |
“VAT” | any tax imposed in compliance with the council directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) (including, in relation to the United Kingdom, value added tax imposed by the Value Added Tax Act 1994 and legislation and regulations supplemental thereto); and | |
(b) | any other tax of a similar nature (including sales tax, use tax, consumption tax and goods and services tax), whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in (a), or elsewhere; | |
“Warrantor” | has the meaning given to it in the Warranty Deed; | |
“Warranty Deed” | the warranty deed to be entered into on or around the date of this Agreement between the Warrantors and the Buyer; and | |
“W-8BEN-E Forms” | means the documents (including but not limited to IRS Form W-8BEN-E) required to establish that no withholding is or was required under Chapter 3 or Chapter 4 of the U.S. Internal Revenue Code of 1986, as amended, and any Treasury Regulations promulgated thereunder, official administrative interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the U.S. Internal Revenue Code of 1986, as amended, and any intergovernmental agreements or any legislation, rules or official administrative practices adopted pursuant to any intergovernmental agreement implementing the foregoing, and to comply with any applicable information reporting requirements in respect of interest paid by any Group Member pursuant to the Third Party Indebtedness Agreements. |
1.2 | In this Agreement unless otherwise specified: |
(a) | defined terms shall have the meanings set out in Clause 1.1 (Definitions and Interpretation); |
(b) | references to “subsidiary undertaking” and “parent undertaking” shall be construed in accordance with section 1162 of the Companies Act 2006. A “subsidiary” and a “subsidiary undertaking” shall include any person the shares or ownership interests in which are subject to security and where the legal title to the shares or ownership interests so secured are registered in the name of the secured party or its nominee pursuant to such security; |
(c) | references to a “person” includes any individual, body corporate, trust, partnership, joint venture, unincorporated association or governmental, quasi-governmental, judicial or regulatory entity (or any department, agency or political sub-division of any such entity), in each case whether or not having a separate legal personality, and any reference to a “company” includes any company, corporation or other body corporate, limited partnership or limited liability partnership wherever and however incorporated or established; |
(d) | references to a “party” mean the parties to this Agreement; |
(e) | references to a document in the “agreed form” are to that document in the form agreed to by or on behalf of the Seller and the Buyer (either initialled by or on behalf of each party or specifically and expressly agreed by exchange of emails between the Buyer and the Seller, or their respective legal counsel, to be the agreed form document for the purposes of this Agreement); |
(f) | the ejusdem generis principle of construction shall not apply to this Agreement. Accordingly, general words shall not be given a restrictive meaning by reason of their being preceded or followed by words indicating a particular class of acts, matters or things or by examples falling within the general words. Any phrase introduced by the terms “other”, “including”, “include” and “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
(g) | references to the singular include the plural and vice versa; |
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(h) | references to a Clause or Schedule are to a clause or schedule of this Agreement, and references to this Agreement include the Schedules; |
(i) | the headings in this Agreement do not affect its construction or interpretation; |
(j) | references to a statute or a statutory provision include references to such statute or statutory provision as amended or re-enacted whether before or after the date of this Agreement and include all subordinate legislation made under the relevant statute whether before or after the date of this Agreement save where that amendment, re-enactment or subordinate legislation is made after the date of this Agreement and would extend or increase the liability of any party under this Agreement; |
(k) | except as expressly stated otherwise in this Agreement, references to the time of day are to London time; |
(l) | a reference to something being “in writing” or “written” includes any mode of representing or reproducing words in visible form that is capable of reproduction in hard copy form, including words transmitted by email but excluding any other form of electronic or digital communication; |
(m) | “$” and “USD” means U.S. Dollars, being the lawful currency for the time being of the United States of America; |
(n) | a reference to “ordinary course of business” shall mean the ordinary course of business consistent with past practice; |
(o) | a reference to a document is a reference to that document as amended or modified from time to time in writing by the mutual consent of the parties; and |
(p) | with respect to Schedule 3, the word “material” shall mean material in the context of the financial position of the Group as a whole. |
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EXECUTED | ) | ||
For and on behalf of | ) | ||
CAYMAN NIH VI BEIT | ) | ||
HOLDINGS, L.P. | ) | ||
acting by | ) | ||
Cayman NIH VI Beit Holdings | ) | ||
Management, Ltd. | ) | /s/ Melanie Paptestas |
its general partner | Name: Melanie Paptestas |
Title: Director |
[Nimbus – Signature page to SPA]
EXECUTED | ) | ||
For and on behalf of | ) | ||
LITTELFUSE, INC. | ) | /s/ Ryan K. Stafford |
Name: Ryan K. Stafford | |
Title: Executive Vice President, Chief Legal Officer and Corporate Secretary |
[Nimbus – Signature page to SPA]