EXHIBIT 1
SHARE PURCHASE AGREEMENT
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THIS SHARE PURCHASE AGREEMENT (the "Agreement"), is made and entered
into this 12th day of October, 1995 by and among QMS, Inc., a Delaware
corporation ("Seller"), and Jalak Investments B.V. i.o., a corporation organized
or to be organized under the laws of The Netherlands ("Purchaser").
WITNESSETH:
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WHEREAS, Seller owns 100% of the outstanding shares of common stock of
QMS Europe B.V. (the "QMS Europe Stock"); and
WHEREAS, Seller owns 100% of the outstanding shares of common stock of
QMS Australian PTY Ltd. (the "QMS Australia Stock");
WHEREAS, Seller desires to sell all of the QMS Europe Stock and the
QMS Australia Stock (collectively, the "Shares") to Purchaser and Purchaser
desires to purchase the Shares from Seller on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth below and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, and intending to be legally
bound, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
The following terms used in this Agreement shall have the meaning set
forth below:
Section 1.1 "Closing" shall have the meaning set forth in Section 3.1
herein.
Section 1.2 "Australian Deed of Transfer" shall mean the deed of
transfer attached hereto as Exhibit A to be executed before an Australian notary
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public following the Closing and filed with the appropriate authorities in
Australia, if necessary, to record or register the transfer.
Section 1.3 "Closing Date" shall mean the date upon which the Closing
is held.
Section 1.4 "Distributor Agreement" shall mean that certain Master
Distributor Agreement to be entered into by Seller, QMS Australia and QMS Europe
in substantially the form attached hereto as Exhibit B.
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Section 1.5 "Dutch Deed of Pledge" shall mean the Deed of Pledge
attached hereto as Exhibit D to be signed before a Dutch notary public following
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the Closing and registered or filed, if necessary, with the appropriate Dutch
authorities.
Section 1.6 "Dutch Deed of Transfer" shall mean the deed of transfer
attached hereto as Exhibit C to be signed before a Dutch notary public following
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the Closing and registered or filed, if necessary, with the appropriate Dutch
authorities.
Section 1.7 "License Agreement" shall mean the Trademark and Trade
Name License Agreement to be entered into by (i) Seller and QMS Europe and (ii)
Seller and QMS Australia substantially in the form attached hereto as Exhibit E.
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Section 1.8 "Note" shall mean the Promissory Note in favor of Seller
from QMS Europe and QMS Australia in substantially the form attached hereto as
Exhibit F, which shall be subordinate to the loan to QMS Europe from Credit
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Lyonais Bank Nederland, N.V..
Section 1.9 "Option Agreement" shall mean that certain Option
Agreement between Purchaser and Seller substantially in the form attached hereto
as Exhibit G granting the Option.
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Section 1.10 "Option" shall mean the option to be granted by
Purchaser to Seller to re-acquire sixty-five percent (65%) of the outstanding
shares of common stock of QMS Europe and QMS Australia which Option is
exercisable between November 1, 1998 and November 30, 1998
Section 1.11 "QMS Australia" shall mean QMS Australia PTY Ltd., a
corporation organized under the laws of Victoria, Australia and wholly owned
subsidiary of QMS.
Section 1.12 "QMS Europe" shall mean QMS Europe B.V., a corporation
organized under the laws of The Netherlands and wholly owned subsidiary of QMS.
Section 1.13 "Pledge Agreement" shall mean that certain Pledge and
Security Agreement from Purchaser to Seller substantially in the form attached
hereto as Exhibit H.
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ARTICLE 2
PURCHASE AND SALE OF SHARES
Section 2.1 Purchase and Sale of Shares. At the Closing, subject to
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the terms and conditions set forth herein, Seller shall sell to Purchaser and
Purchaser shall purchase from Seller the Shares. Seller shall transfer all of
its right, title and interest in and to the Shares to Purchaser free and clear
of any lien, security interest, or other encumbrance of any nature and free of
any claim by any person or entity to or against the Shares.
Section 2.2 Purchase Price. The purchase price for the Shares shall
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be an amount equal to U.S. Two Million Three Hundred Thirty-Two Thousand Dollars
(U.S. $2,332,000.00).
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Section 2.3 Payment of Purchase Price. As payment for the Shares,
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Purchaser shall deliver to Seller U.S. $2,332,000.00 payable by check or wire
transfer at the Closing.
Section 2.4 Allocation of Purchase Price. The purchase price shall
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be allocated between the QMS Europe Stock and QMS Australia Stock as follows:
(a) QMS Australia Stock - US$1,000,000.00
(b) QMS Europe Stock - US$1,332,000.00
ARTICLE 3
CLOSING
Section 3.1 Closing. The Closing shall take place on the date upon
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which the cash portion of the purchase price is delivered to Seller, effective
as of October 12, 1995 at the offices of Meijer c.s. in The Netherlands, or such
other time or place as mutually agreed to by the parties, provided that in no
event shall the Closing be held after October 20, 1995.
Section 3.2 Items To Be Delivered by Seller. At the Closing and
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subject to the terms and conditions contained herein, Seller shall deliver to
Purchaser the following:
(a) the Distributor Agreement; and
(b) the License Agreement.
All of the above-mentioned documents shall be in form and substance satisfactory
to Purchaser and its counsel.
Section 3.3 Items to be Delivered by Purchaser. At the Closing and
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subject to the terms and conditions contained herein, Purchaser shall deliver to
Seller the following:
(a) the cash portion of the Purchase Price;
(b) the Distributor Agreement;
(c) the License Agreement;
(d) the Option Agreement; and
(e) the Pledge Agreement.
All of the above-mentioned documents shall be in form and substance satisfactory
to Seller and its counsel.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
Section 4.1 Ownership of Shares. Seller is the sole record and beneficial
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owner of all of the issued and outstanding Shares, and it has good and valid
title to such Shares free and clear of any lien, security interest or
encumbrance of any nature and free of any claim by any person to or against such
Shares. Seller has the full right, power and authority to sell, assign,
transfer and convey the Shares to Purchaser as provided herein.
Section 4.2 Authorization, Validity and Enforceability. This Agreement
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has been duly authorized by all necessary corporate action of Seller. This
Agreement constitutes the valid and binding obligation of Seller, enforceable in
accordance with its terms, and the execution, delivery and performance of this
Agreement will not violate or result in a default under any provision of any
material commitment, agreement or instrument to which the Seller is a party or
by which the Seller is bound and will not contravene any law, rule or regulation
of any administrative agency or governmental body, or any order, writ,
injunction or decree of any court, administrative agency or governmental agency
applicable to the Seller.
Section 4.3 Litigation. There are no proceedings pending or threatened,
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and there is no order, writ, judgment or decree affecting the Seller which, if
adversely determined, would have a material adverse effect on the transactions
contemplated hereby.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
Section 5.1 Validity and Enforceability. This Agreement constitutes the
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valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, and the execution, delivery and performance of this Agreement will
not violate or result in a default under any provisions of any material
commitment, agreement or instrument to which the Purchaser is a party or by
which the Purchaser is bound, and will not contravene any law, rule or
regulation of any administrative agency or governmental body or any order, writ,
injunction or decree of any court, administrative agency or governmental agency
applicable to Purchaser.
Section 5.2 Litigation. There are no proceedings pending or threatened,
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and there is no order, writ, judgment or decree affecting the Purchaser, which,
if adversely determined, would have a material adverse effect on the
transactions contemplated hereby.
Section 5.3 Investigation. Purchaser has been afforded access to all
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business and financial information and records of QMS Europe and QMS Australia,
the opportunity to ask questions of, and receive answers from, the officers and
other employees of QMS Europe and QMS Australia relating to all aspects of QMS
Europe and QMS Australia and their business, and otherwise to obtain
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from QMS Europe and QMS Australia any and all information necessary to verify
the accuracy of any and all information with respect to QMS Europe and QMS
Australia. Purchaser has relied solely on information obtained by it from such
investigation, and has not relied on information received by it from any other
source (including Seller), in making the investment represented by the purchase
of Shares under this Agreement. Purchaser has not looked to Seller for or
received from Seller any information in making such investment.
ARTICLE 6
CONDITIONS TO CLOSING
Section 6.1 Purchaser's Obligations. The Purchaser's obligations to
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consummate the transactions contemplated hereby are conditioned upon the
satisfaction of the following conditions on or prior to the Closing:
(a) receipt of the corporate records of QMS Europe and QMS Australia;
(b) the approval of Purchaser's lender bank(s);
(c) receipt of the Distributor Agreement executed by Seller; and
(d) receipt of the License Agreement executed by Seller.
Section 6.2 Seller's Obligations. The Seller's obligations to consummate
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the transactions contemplated hereby are conditioned upon the satisfaction of
the following conditions on or prior to Closing;
(a) receipt of the Distributor Agreement executed by QMS Europe and QMS
Australia;
(b) receipt of a License Agreement executed by QMS Europe and a License
Agreement executed by QMS Australia;
(c) receipt of the Option Agreement executed by Purchaser; and
(d) receipt of the Pledge Agreement executed by Purchaser.
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ARTICLE 7
POST-CLOSING COVENANTS OF PURCHASER
Section 7.1 Settlement of QMS Europe and QMS Australia Intercompany
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Account. Within 48 hours following the Closing, Purchaser shall cause QMS
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Europe to pay in full all amounts owed by QMS Europe and QMS Australia to Seller
as of the Closing Date. Such amount shall be paid to the Seller as follows:
(a) the Note in the original principal amount of $4,000,000; and
(b) the balance to be paid by check or wire transfer of readily
available U.S. funds.
Section 7.2 Australian Deed of Transfer. As soon as practicable after the
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Closing, Purchaser and Seller shall cause the Australian Deed of Transfer to be
filed with an Australian notary public, and shall have the transfer recorded on
the register of shareholders of QMS Australia.
Section 7.3 Dutch Deed of Transfer. As soon as practicable after the
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Closing, Purchaser and Seller shall cause the Dutch Deed of Transfer to be filed
with a Dutch notary public, and shall have the transfer recorded on the register
of shareholders of QMS Europe.
Section 7.4 Transfer of QMS Australia to QMS Europe. Within one (1) year
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following the Closing Date, Purchaser shall contribute the stock of QMS
Australia to QMS Europe.
Section 7.5 Corporate Governance. For a period of five (5) years
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following the Closing, Seller shall have the right, at its option, to appoint
one (1) supervising member to the board of directors of QMS Europe, and
Purchaser shall take all action necessary to effect such appointment.
ARTICLE 8
ARBITRATION
Section 8.1 Arbitration. All disputes under this Agreement other than
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disputes regarding the Distributor Agreement, which shall be settled as set
forth therein, shall be settled by arbitration in Atlanta, Georgia, U.S.A.
pursuant to the rules of the American Arbitration Association Commercial
Arbitration Rules which rules are deemed to be incorporated by reference herein,
and judgment on the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
Section 8.2 Selection of Arbitrators. The number of arbitrators shall be
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three (3), each of whom shall be disinterested in the dispute or controversy,
shall have no connection with any party hereto and shall be a person experienced
in international trade and business matters. Each party shall nominate one (1)
arbitrator and the two arbitrators so appointed shall select a third arbitrator.
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Section 8.3 Arbitration Awards. Arbitration may be commenced at any time
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by either Purchaser or Seller giving written notice to the other that such
dispute has been referred to arbitration under this Article 8. Any award
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rendered by the arbitrators shall be final, conclusive, non-appealable and
binding on the parties hereto and shall be accompanied by a written opinion of
the arbitrators giving the reasons for the awards; provided, however, that the
arbitrators shall have no authority to award any special, indirect, incidental,
consequential, punitive or other damages not measured by the prevailing party's
actual damages and the arbitrators may not make any ruling, finding or award
that does not conform with the terms and conditions of this Agreement. Each
party shall pay its own expenses of arbitration and the expenses of the
arbitrators shall be equally shared; provided, however, that the arbitrators may
assess, as part of their award, all or any part of the arbitration expenses of
the other party (including reasonable attorney's fees) and of the arbitrators
against the party raising an unreasonable claim, defense or objection.
ARTICLE 9
TAX INDEMNITY
TAX INDEMNITY. Seller will indemnify, defend and hold Purchaser harmless
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from and against all liabilities, losses, damages, claims, actions, causes of
actions, costs and expenses (including without limitation attorneys' fees)
arising out of or with respect to any tax liability incurred by QMS Europe or
QMS Australia prior to the Closing Date.
ARTICLE 10
MISCELLANEOUS
Section 10.1 Survival of Agreements. All covenants, agreements,
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representations and warranties made herein shall survive the execution and
delivery of this Agreement and the sale and delivery of the Shares pursuant
hereto. The foregoing provisions with regard to the survival of the warranties
and representations of the parties in this Agreement is meant only to establish
the period of time within which a claim for breach of such warranties and
representations may be brought, and is not intended to extend the applicability
of such warranties and representations to events or circumstances which may
occur after the Closing date.
Section 10.2 Expenses. Each party hereto shall pay its own expenses in
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connection with the transactions contemplated hereby.
Section 10.3 Access to Books and Records.
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(a) Seller shall, upon reasonable notice to Purchaser, have access to and
a right to make copies of the books and records of Purchaser relating
to the operations and affairs of QMS Europe and QMS Australia prior to
the Closing Date.
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(b) Seller shall permit Purchaser to have access, upon reasonable notice
to Seller, to books and records maintained by Seller relating to QMS
Europe's and QMS Australia's operations and affairs prior to the
Closing Date.
Section 10.4 Notices. All notices, requests, consents, or other
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communication hereunder shall be in writing and shall be delivered personally or
by courier or mailed by first class registered or certified mail, postage
prepaid, as follows:
If to Seller: QMS, Inc.
One Magnum Pass
Post Office Box 81250
Mobile, Alabama USA 36689-1250
Attn: Legal Department
with a required copy to: Powell, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 572-6600
Attention: G. William Speer, Esq.
If to Purchaser: Jalak Investments B.V. i.o.
c/o QMS Europe B.V.
Reactorweg 160
3542 AD Utrecht
P. O. Box 8540
3503 RM Utrecht
The Netherlands
Attn: Peter van Schaick
with a required copy to: Meijer c.s.
Scheveningseweg 50
2517 KW 's - Gravenhage
The Netherlands
070-358 87 77
Attn: Georg Werger
Section 10.5 Captions and Section Headings. As used herein, captions and
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section headings are for convenience only and are not a part of this Agreement
and shall not be used in construing it.
Section 10.6 Entire Agreement. This Agreement and the other documents
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delivered pursuant hereto and thereto, or incorporated by reference herein,
contain the entire agreement
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between the parties hereto concerning the transactions contemplated herein and
supersede all prior agreements or understandings between the parties hereto
relating to the subject matter hereof.
Section 10.7 Additional Documents. The parties hereto will, at any time
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after the date hereof, sign, execute and deliver, or cause others so to do, all
such powers of attorney, deeds, assignments, documents and instruments and do or
cause to be done all such other acts and deeds as may be necessary or proper to
carry out the transactions contemplated by this Agreement.
Section 10.8 Amendment. This Agreement may be amended, supplemented or
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interpreted at any time, but only by a written agreement executed by the parties
hereto.
Section 10.9 Counterparts. This Agreement may be executed in
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
Section 10.10 Severability. If any one or more of the provisions of this
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Agreement shall be held to be invalid, illegal or unenforceable, the validity,
legality or enforceability of the remaining provisions of this Agreement shall
not be affected thereby. To the extent permitted by applicable law, each party
waives any provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable in any respect.
Section 10.11 Governing Law. This Agreement shall be governed by the laws
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of the State of Georgia.
Section 10.12 Governing Language. Regardless of whether a copy of this
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Agreement is translated into another language, the official version hereof shall
be the English version, which shall prevail in all cases. All correspondence
and communications between the parties, all reports, orders, instructions,
literature, records and other written material pertaining to this Agreement
shall be maintained and delivered in the English language.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELLER:
QMS, INC.
By: /s/ James L. Busby
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Title: President
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PURCHASER:
JALAK INVESTMENTS B.V. i.o.
By: /s/ P.P. van Schaick
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Title: Managing Director
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