EXHIBIT 10.6
RESTRUCTURING AGREEMENT
This RESTRUCTURING AGREEMENT (this "Agreement") is entered into and is
effective as of the date set forth below by and between INVESTAR S.a. r.l.
("InvestAR"), a Luxembourg private limited liability corporation, INTERLINK
ELECTRONICS ("Interlink"), a California corporation, INTERLINK ELECTRONICS
EUROPE, S.a. r.l. ("IEE"), a Luxembourg private limited liability corporation,
and IEE FINANCE, S.a. r.l. ("IEEF"), a Luxembourg private limited liability
corporation.
RECITALS
WHEREAS, InvestAR and Interlink are parties to a Joint Venture
Agreement, dated as of November 7, 1989 (the "Joint Venture Agreement").
WHEREAS, InvestAR, Interlink, IEE and IEEF are parties, as stated
below, to the following agreements relating to the Joint Venture:
a) Exclusive License and Distributor Agreement between Interlink
and IEE, dated as of November 7, 1989 (the "License
Agreement").
b) Manufacturing and Supply Agreement between Interlink and IEE,
dated as of November 7, 1989 (the "Supply Agreement").
c) Letter Agreement among InvestAR, IEE and Interlink, dated as
of November 7, 1989 (the "Letter Agreement").
d) Agreement among InvestAR, IEE and Interlink, dated December
14, 1990 (the "December 14, 1990 Agreement").
e) Interlink Europe Financing Agreement between InvestAR and
Interlink, dated June 25, 1992 (the "June 25, 1992
Agreement").
f) Ink . Technology Transfer Agreement among InvestAR, IEE and
Interlink, dated as of December 11, 1992 (the "Ink
Agreement").
g) Financing Agreement in relation with Ink Technology Transfer
Agreement, dated December 11, 1992 (the "Ink Financing
Agreement").
h) Escrow Agreement for Ink Technology among Interlink, InvestAR,
IEE and Banque et Caisse d'Epargne de l'Etat, dated as of
January, 1992 (the "Ink Escrow Agreement").
i) Interlink Europe Financing Agreement between Interlink and
InvestAR, dated April 7, 1993 (the "April 7, 1993 Agreement").
j) Technology Purchase Agreement between IEE and Interlink, dated
as of December 6, 1993 (the 'Technology Agreement").
WHEREAS, InvestAR owns 510,775 shares of the Common Stock of Interlink
(the "Interlink Shares").
WHEREAS, Interlink owns 250 shares of the Common Stock of IEE, and
77,250 shares of the Common Stock of IEEF (together the "IEE Shares").
WHEREAS, Interlink may be reincorporated in Delaware in 1994 and IEE
may relocate within the Grand Duchy of Luxembourg.
WHEREAS, the parties wish to restructure the arrangement between and
among them, 1) including exchanging the Interlink Shares and the IEE shares, 2)
terminating the Joint Venture Agreement and certain of the other agreements, and
3) amending and restating the License Agreement.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
TERMS AND CONDITIONS
1. EXCHANGE OF INTERLINK SHARES AND IEE SHARES. Interlink hereby
agrees to transfer its entire right, title and interest in the
IEE Shares to InvestAR, and in exchange therefor InvestAR
hereby agrees to transfer its entire right, title and interest
in the Interlink Shares to Interlink. Upon the signing hereof,
Interlink and InvestAR shall execute and deliver all documents
and instruments necessary to effect the transfer of the IEE
Shares and the Interlink Shares, respectively, and any other
ownership documents. Upon receipt by Interlink, the Interlink
Shares shall be treated as authorized but unissued shares of
Interlink.
2. TERMINATION OF CERTAIN AGREEMENTS AND OTHER ACTIONS.
2.1 Termination of Certain Agreements. The following
agreements are hereby terminated effective as of the
date set forth below:
(a) Joint Venture Agreement
(b) Supply Agreement
(c) Letter Agreement
(d) December 14, 1990 Agreement
(e) June 25, 1992 Agreement
(f) Ink Financing Agreement
(g) April 7, 1993 Agreement
Concurrently with the execution of this Agreement,
ARBED S.A. and InvestAR have delivered to Interlink a
letter confirming the termination of the undated
letter agreement among ARBED, InvestAR and Interlink,
to which termination Interlink agrees.
2.2 CONTINUATION OF CERTAIN AGREEMENTS. The following
agreements shall continue in full force and effect:
(a) Technology Agreement
(b) Ink Agreement
(c) Ink Escrow Agreement
In the event of any conflict or inconsistency between
this Agreement and such agreements, the terms of this
Agreement shall govern.
2.3 AMENDMENT AND RESTATEMENT OF THE LICENSE AGREEMENT.
The License Agreement shall be amended and restated
in the form attached hereto as Exhibit A.
2.4 AMENDMENT OF CORPORATE CHARTERS. Interlink hereby
agrees to take all action and to prepare and execute
any and all documents that InvestAR, in its
reasonable discretion, may deem necessary or
advisable to permit the amendment of the IEE Charter
and the IEEF Charter to reflect the changes in the
ownership of those entities resulting from this
Agreement and take any other actions as InvestAR may
reasonably request.
2.5 TRANSFER CERTAIN IEE PATENTS.
(a) InvestAR hereby agrees to take all action,
including the preparation and execution of
all documents, as may be reasonably required
to transfer to Interlink legal title in the
patents and patent applications described on
Exhibit 2.5 attached hereto (the "IEE
Patents").
(b) The IEE Patents and any continuations,
continuations-in-part, divisionals,
re-examinations and reissues of the IEE
Patents shall
be included in the term "Core Technology"
under the License Agreement, as amended and
restated.
(c) Interlink shall maintain the IEE Patents in
full force and effect and not take any
action, or allow any action to occur, which
will adversely affect the IEE Patents. If
Interlink decides to abandon such patents or
wishes not to maintain them, Interlink shall
offer to IEE to transfer such patents to IEE
at Interlink's expense.
2.6 CHANGE OF NAME. IEE will use its best efforts to
change its name within the next six months, in
consultation with Interlink.
3. REPRESENTATIONS. The parties each represent to the others as
follows:
3.1 FINANCIAL INFORMATION. The written financial reports (whether
or not published) that have been provided by the parties to
each other are true, accurate and complete, and contain no
material misstatements or omissions of material facts. Since
the last written financial reports provided to the other
parties, there have been no financial or business developments
of a material nature which have not been disclosed to the
other parties.
3.2 AUTHORIZATION. The individuals who have signed this Agreement
as representatives of the parties are each authorized by the
party he represents to execute this Agreement on its behalf
and to legally bind it thereby; and each party on whose behalf
this Agreement has been executed has the legal power and
authority to enter into and carry out all of the provisions of
this Agreement.
4. EXTERNAL COMMUNICATIONS. Because of Interlink's
responsibilities as a publicly traded U.S. corporation, any
and all press releases or other public announcements regarding
this transaction must be in full compliance with the rules and
regulations of the U.S. Securities and Exchange Commission;
accordingly, any and all such communications by any of the
parties hereto must be reviewed and approved in advance by the
other parties before public release, which approval shall not
be unreasonably withheld.
5. COOPERATION.
5.1 MANAGEMENT MEETINGS. Representatives of the
management of InvestAR and Interlink will meet at
least semi-annually for the purpose of discussing any
issues arising under this Agreement and the related
agreements and such other matters as they wish to
discuss.
5.2 TECHNICAL MEETINGS. If technical advice is requested,
the party requesting such advice will bear any
reasonable travel related expenses.
6. SALE OF IEE. InvestAR will not sell, assign, pledge,
distribute, or otherwise transfer a controlling interested in
IEE, or all or substantially all of the assets of IEE, to any
entity which is a significant customer or competitor of
Interlink in Product lines other than Automotive Safety and
Automotive Horn and Horn Door Applications (as such terms are
defined in the License Agreement) without the prior written
consent of Interlink, which consent shall not be unreasonably
withheld.
7. ENTIRE AGREEMENT. This Agreement (which hereby incorporates
the License Agreement, as amended and restated hereby, as an
integral part of this Agreement), along with the agreements
described in Section 2.2 hereof, constitutes the full and
complete agreement and understanding among the parties hereto,
and supersedes any and all prior oral or written
communications or agreements concerning the subject matter
hereof.
8. AMENDMENT. This Agreement may not be modified or amended, nor
may any provision hereof be waived, unless by a dated, written
instrument signed by a duly authorized representative of each
of the parties hereto.
9. WAIVER. No failure or delay by any party to insist upon the
strict performance of any term, condition, covenant or
agreement of this Agreement, or to exercise any right, power
or remedy hereunder, or consequent upon a breach hereto shall
constitute a waiver of any such term, condition, covenant,
agreement, right, power or remedy, or of any such breach, or
preclude such party from exercising any such right, power or
remedy at any later time or times.
10. GOVERNING LAW AND LANGUAGE. The English language version of
this Agreement shall control. This Agreement shall be governed
by, and construed, interpreted and enforced in accordance
with, the internal law of the State of Delaware, applied
without reference to the conflicts of laws rules thereof.
11. DISPUTE RESOLUTION.
11.1 PROCESS. In the event any dispute arises hereunder,
the parties shall, to the extent commercially
practicable, meet to discuss and attempt to resolve
the matter among themselves. If such a meeting is
neither practicable nor successful, then the dispute
shall be settled by binding arbitration, to be
conducted in New York, New York before a panel of
three arbitrators (one each to be selected by a
party, the third to be selected by the first two or,
if they fail to agree within 30 days, by the
President of the Court of Arbitration of the
International Chamber of Commerce in Paris), under
the Rules of Conciliation and Arbitration of the
International Chamber of Commerce. At _least two of
the arbitrators shall be familiar with the commercial
and manufacturing practices of the sensor industry.
11.2 ARBITRATION AWARD. The arbitration award shall be
final, binding upon the parties, not subject to any
appeal, and may, in the arbitrators' discretion,
include the award of the costs of the arbitration
(including reasonable attorneys fees) to the
prevailing party. No award shall be made for any
punitive or special damages. The award shall be
written in English. The parties hereto hereby agree
that judgment upon the award rendered may be entered
in any court having jurisdiction, and that an
application may be made to such court for judicial
recognition of the award, or for an order of
enforcement thereof, as the case may be. The parties
agree that any arbitration award rendered pursuant to
this Section with respect to any dispute arising out
of or relating to this Agreement will be enforceable
under the laws of both the Grand Duchy of Luxembourg,
and the States of California and Delaware without
prejudice to its enforcement in other states.
11.3 Equitable Relief Nothing contained in this Section
shall be construed as prohibiting any party hereto
from seeking equitable relief in any court for any
violation of this Agreement, when, in that party's
reasonable judgment, legal or arbitral relief would
be inadequate to protect that party's interests, and,
in the absence of equitable relief, said party would
suffer irreparable harm.
12. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, and their successors and
assigns.
13. AGREEMENT TO PERFORM NECESSARY ACTS. Each party agrees to
perform such further acts, and to prepare, execute, and
deliver such further documents and instruments as may be
reasonably necessary to carry out the intent of the provisions
of this Agreement.
14. VALIDITY . If for any reason any portion of this Agreement, or
the application of such provision in a particular context or
situation should be held unenforceable, invalid, or in
violation of the law by any court or tribunal, then the
application of such provision in contexts or to situations,
circumstances, or persons other than that in or to which it is
held unenforceable, invalid, or in violation of law shall not
be affected thereby, and the remaining provisions of this
Agreement shall nevertheless remain in full force and effect;
provided, however, that should the nonenforceability of any
provision hereof act to materially reduce the overall benefit
of this Agreement to any party hereto, then the parties shall
promptly confer in good faith to discuss the possible
modification of the remaining terms of this Agreement to best
accomplish the intent of the original Agreement.
15. NOTICES. All notices or other communications required or
permitted
hereunder shall be in writing and shall be given or made by
personal delivery, by telecopy (with follow-up copy sent via
first class mail, postage prepaid), or by a nationally
recognized courier service for overnight delivery, addressed:
if to Interlink, at:
Interlink Electronics
546 Flynn Road Camarillo,
California 93012
Attention: President
Telecopy No: (805)484-8989
if to InvestAR, at:
InvestAR S.a. r.l.
19, avenue de la Liberte
L - 2930 Luxembourg
Attention: Managing Director
Telecopy No: 011-352-4792-2023
if to IEE, at:
Interlink Electronics Europe S.a. r.l.
B.P.8 Zone Industrielle
L - 6401 Echternach Luxembourg
Attention: Managing Director
Telecopy No: 011-352-728262
or at such other place as the party to whom such notice or
communication is to be addressed may have designated to the
other parties by notice conforming to this Section 16. Notices
shall be deemed effective and received (i) on the actual
receipt in the case of hand delivery, (ii) upon receipt of
written confirmation in the case of telecopy, or (iii) on the
third business day after deposit in the case of notices by
nationally recognized overnight courier services.
WHEREFORE, this Agreement is entered into as of the _________day of
September, 1994.
InvestAR, S.a. r.l.
By ______________________________________
Pierre THEIN Georges BOLLIG
Director Director
Interlink Electronics
By ______________________________________
CEO/Chairman
Interlink Electronics Europe, S.a. r.l.
By _______________________________________
Pierre THEIN Georges BOLLIG
Director Director
IEE Finance, S.a. r.l.
By _______________________________________
Pierre THEIN Georges BOLLIG
Director Director