Exhibit 10.1
Execution Version
SHARE PURCHASE AND SALE AGREEMENT
of June 17, 2005
between
TAT Investments II C.V.
FCPR Banexi Ventures 3
Innoventure Capital AG
Banque Cantonale Vaudoise
Rolex SA
Phonak AG
FCPR Banexi Ventures 2
Vontobel European Ventures
Manufacture des Montres Rolex SA
Mme Marie-Cecile Bizet nee Cointreau
Richemont International SA
Caisse de Pension de l'Etat de Neuchatel
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Mr Alain Dantec
Mr Michel Desbard
Mr Roland Heer
The Yasuda Enterprise Development I, Limited Partnership
Mr Evan Rohr
Mr Thomas Hinderling
Mr Jean-Paul Bardyn
Mr Remy Pache
Mr Serge Girardin
and
Semtech International AG
regarding
Xemics SA
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Table of Content
ARTICLE 1. Definitions 8
ARTICLE 2. Sale and Purchase of Shares, Consideration 15
2.1 Sale and Purchase of Shares 15
2.2 Purchase Price 15
2.2A Closing Payment 16
2.2B Adjustment of Specific Estimated Social Security Cost 2005 and
Specific Estimated Stamp Duty Cost 2005 16
2.3 Purchase Price Adjustment 17
2.3.1 First Purchase Price Adjustment 17
2.3.2 Second Purchase Price Adjustment 18
2.3.3 Payment of any Purchase Price Adjustment 18
2.4 Relevant Gross Revenue 18
ARTICLE 3. Closing 22
3.1 Actions Prior to Closing 22
3.1.1 In General 22
3.1.2 Filings and Submissions 22
3.1.3 Termination of Agreements 22
3.1.4 Third Party Consents 23
3.1.5 Intentionally left blank 23
3.1.6 Certain Patents and Technology Licenses 23
3.1.7 Closing Memorandum 23
3.2 Closing Date and Location 23
3.3 Conditions Precedent to Closing 24
3.3.1 Conditions Precedent to Closing for Both the Sellers and the Purchaser 24
3.3.2 Conditions to Obligations of the Purchaser 24
3.3.3 Condition to Obligations of the Seller 25
3.3.4 Right to Terminate this Agreement 25
3.4 Closing Actions 26
3.4.1 Closing Actions by the Sellers 26
3.4.2 Closing Actions by the Purchaser 27
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3.5 Default Interest 28
ARTICLE 4. Representations and Warranties of the Sellers 28
4.1 Organization and Qualification 28
4.2 Capital Structure 29
4.3 Ownership and Corporate Structure 29
4.4 Financial Statements 30
4.5 No Undisclosed Liabilities 30
4.6 Absence of Adverse Changes 30
4.7 Permits and Authorizations 31
4.8 Claims and Litigation 31
4.9 Taxes 32
4.10 Agreements with Third Parties 33
4.11 Intellectual Property/Know-how 34
4.12 Employment Matters 35
4.13 Pensions 35
4.14 Insurance Policies 36
4.15 Compliance with the Law 36
4.16 Environmental Matters 36
4.17 Product Liability 37
4.18 Real Property 37
4.19 Machinery, Vehicles, Equipment and Fixtures 37
4.20 Agreements between Sellers and the Companies 37
4.21 Fair Disclosure 38
ARTICLE 5. Remedies 38
5.1 Term of Warranties and Representations 38
5.2 Notification and Examination Requirements 38
5.3 Indemnification 39
5.4 Limitations 40
5.4.1 De Minimis 40
5.4.2 Maximum Amount 40
5.4.3 Exclusion of Liability 41
5.5 Procedure with Third Parties and Authorities 42
5.6 Escrow Agreement and Escrow Account 43
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ARTICLE 6. Covenants 43
6.1 Conduct of Business 43
6.2 Free Access to the Companies, the Management and Information 44
6.3 No Recourse of Sellers against Directors and Employees of the Companies 44
6.4 No Claim of Sellers against the Companies 45
6.5 Covenant not to Compete 45
6.6 Non-Solicitation of Employees 45
6.7 Sellers' Representative 46
6.8 Earnout Covenant of the Purchaser 47
6.9. Earnout Covenant of the Sellers 49
6.10 Funding of the Purchase Price 49
6.11 Liability for Breach of Covenants 50
6.12 Liability for Violation of Covenants 50
ARTICLE 7. Election of new Board of Directors of the Company 51
ARTICLE 8. Taxes 51
8.1 Taxes to be Paid by the Parties 51
ARTICLE 9. Miscellaneous 51
9.1 Costs 51
9.2 Notice 51
9.3 No Waiver 53
9.4 Entire Agreement 53
9.5 Binding on Successors 53
9.6 Announcements 53
ARTICLE 10. Governing Law and Arbitration 54
10.1 Governing Law 54
10.2 Arbitration 54
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SHARE PURCHASE AND SALE AGREEMENT
between
1 TAT Investments II C.V., Pareraweg 45, Curacao (Netherlands Antilles)
2 FCPR Banexi Ventures 3, 32 Blvd. Haussmann, 75009 Paris (France)
3 Innoventure Capital AG, Bleicherweg 72, 8070 Zurich
4 Banque Cantonale Vaudoise, Place Saint-Francois 14, 1003 Lausanne
5 Rolex SA, Rue Francois-Dussaud 3-7, 1211 Geneva
6 Phonak AG, Laubisrutistrasse 28, 8712 Stafa
7 FCPR Banexi Ventures 2, 32 Blvd. Haussmann, 75009 Paris (France)
8 Vontobel EuropeanVentures Holding Corporation, P.O. Box 30846 SMB, Grand
Cayman (Cayman Islands)
9 Manufacture des Montres Rolex SA, Rue David-Moning 9, 2501 Bienne
10 Mme Marie-Cecile Bizet nee Cointreau, ch. du Pertuis du Sault 11, 2000
Neuchatel
11 Richemont International SA, Route des Biches 10, 1752 Villars-sur-Glane
12 Caisse de Pension de l'Etat de Neuchatel, Rue du Musee 1, 2001 Neuchatel
13 Mr Alain Dantec, Chemin des Essorbiers 28, 2022 Bevaix
14 Mr Michel Desbard, 23 Alta street, San Francisco, CA 94133, U.S.A.
15 Mr Roland Heer, Grosswiesen 18, 8044 Zurich-Gockhausen
16 The Yasuda Enterprise Development I, Limited Partnership, BYGS Shinjyuku
Building 6F, 2-19-1 Shinjyuku, Shinjyuku-ku, Tokyo (Japan 160-0022)
17 Mr Evan Rohr, Chemin Vieux 14, 2000 Neuchatel
18 Mr Thomas Hinderling, Liseron 9, 2000 Neuchatel
19 Mr Jean-Paul Bardyn, Chemin des Sources 3, 2013 Colombier
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20 Mr Remy Pache, Leman 9, 1025 St Sulpice
21 Mr Serge Girardin, Rue de la Gare 1a, 2074 Marin
(each of parties 1 to 21 a Seller
and collectively the Sellers)
and
Semtech International AG, Bionstrasse 4, 9015 St. Gallen
(the Purchaser)
regarding
Xemics SA, rue de Monruz 2, 2000 Neuchatel
(the Company)
WHEREAS
A. Xemics SA is a company incorporated under the laws of Switzerland,
domiciled at Neuchatel, with a share capital of CHF 10'134'416, divided
into 10'134'416 fully paid in registered shares with a nominal value of
CHF 1 each;
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B. Xemics USA, Inc., is a company incorporated under the laws of the State
of Delaware, United States of America, with its registered office at
Wilmington, with a share capital of USD10, divided into 1'000 ordinary
shares with a nominal value of USD 0.01 each (Xemics USA);
C. The Sellers own all the shares in the Company (the Shares) as listed on
Schedule C;
D. Xemics SA owns all the shares in Xemics USA;
E. Xemics SA and Xemics USA are engaged in the business of developing and
delivering standard and customized advanced integrated circuits that
provide short range wireless connectivity solutions for personal area
networks and home and building automation networks;
F. The Sellers wish to sell all the Shares to the Purchaser and the
Purchaser wishes to purchase all the Shares from the Sellers pursuant to
the terms and conditions of this Agreement;
NOW, THEREFORE, the Parties hereto agree as follows:
ARTICLE 1
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Definitions
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As used in this Agreement, the following terms have the following meaning unless
the context requires otherwise:
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Affiliate means with respect to a person or entity, any other person or entity
directly or indirectly controlling, controlled by or under common control with,
such person or entity; for purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person or entity, whether through
the ownership of voting securities or otherwise;
Agreement means this Agreement and its Schedules as amended from time to time
pursuant to art. 9.4 hereof;
Business Day means any day on which the commercial banks in Zurich are open for
normal business transactions;
CHF means Swiss Francs, being the lawful currency of Switzerland;
Closing means the consummation of the transactions described in art. 2 hereof in
accordance with art. 3 hereof;
Closing Date means the date defined in art. 3.2 hereof;
Closing Payment means the payment to be made by the Purchaser to the Sellers'
Representative, acting for all the Sellers together, at and subject to Closing
as set forth in art. 2.2A hereof;
Companies means Xemics SA and Xemics USA, Inc.;
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Consolidation/Consolidated means in respect of the financial statements of the
Companies, accumulation as of a specific date as if the Companies were one
single enterprise, with all balances and transactions between the Companies
eliminated as required by IFRS and as further set forth in the Group Accounting
and Consolidation Principles;
Earnout Period means the period from May 2, 2005 up to and including April 30,
2006;
Escrow Agent means BDO Visura, Zurich;
Escrow Agreement means the escrow agreement entered among the Parties and the
Escrow Agent pursuant to art. 5.6 hereof;
Escrow Amount means the total of all funds transferred into the Escrow Account
by the Purchaser as set forth in art. 3.4.2;
Exchange Rate means the exchange rate of US Dollars against Swiss Francs as
agreed between the Parties being USD 1 : CHF 1.16;
Escrow Account means the escrow account in the name of the Escrow Agent to be
set up pursuant to art. 5.6 hereof and pursuant to the Escrow Agreement;
Group Accounting and Consolidation Principles means the accounting and
Consolidation principles of the Xemics Group as set forth on Schedule 4.4 (c);
Group Financial Statements means the Consolidated income statement and the
Consolidated balance sheet of the Xemics Group as of a specific date,
established in compliance with IFRS and with the Group Accounting and
Consolidation Principles;
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IFRS means International Financial Reporting Standards;
Independent Relevant Gross Revenue Appraiser means Mr. Rudolf Hafeli,
Vorsitzender Regionaldirektion, BDO Visura, 8031 Zurich, or, if Mr Hafeli is for
any reason unable to act or resigns, another experienced senior partner of the
accounting department of BDO Visura, Zurich, appointed by the Chairman of the
Board of BDO Visura, Zurich, or, finally, if no such substitute appointment is
made within 10 days from the resignation or inability to act, an experienced
senior partner of an international accounting firm appointed by the President of
the Zurich Chamber of Commerce;
Loan Agreement means a loan agreement dated April 8, 2005, entered among certain
of the Sellers on one hand, and the Company on the other hand;
Main Shareholders means the Sellers 1, 2, 3, 4, 5 and 7 ;
Operating Plan means the business operation plan applicable for the Earnout
Period, jointly developed by the Company's management and the Purchaser's
management, handed over to the Sellers' Representative by the Purchaser prior to
Signing;
Options and Participation Agreements means, with the exception of this
Agreement, all agreements which any of the Sellers and/or the Companies have
entered into with investors or employees of the Companies, or with other
individuals or entities, and/or with any of the Companies, that grant stock
options or similar rights in respect of the share capital in the Companies for
the present or for the future;
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Party or Parties means the Purchaser or all of the Sellers together or all, the
Purchaser and all of the Sellers;
Plan means CHF 37.5 million;
Purchase Price means the consideration payable by the Purchaser for all the
Shares together as set forth in art. 2.2 hereof;
Purchase Price Adjustments means the adjustments of the Purchase Price as set
forth in art. 2.3 hereof;
Relevant Gross Revenue means the gross revenue of the Xemics Group (as per line
item "Total Revenue" in the Consolidated income statement contained in Schedule
4.4(a)) generated during the Earnout Period, as shown in the Consolidated income
statement of the Xemics Group as of the last date of the Earnout Period for that
same period, thereby revenue portions generated in USD converted into CHF at the
Exchange Rate; for the avoidance of doubt including any revenue generated (i) by
sales of Xemics Group products and services by the Companies to the Semtech
Group or its distributors or sales representatives, and (ii) by sales of Xemics
Group products and services by and for the account of the Semtech Group;
Schedule means a schedule to this Agreement;
Sellers' Representative means Tat Investments II C.V., Pareraweg 45, Curacao, a
limited partnership with one managing partner under the laws of the Netherlands
Antilles, registered under number 81091 in the commercial register of the
Curacao Chamber of Commerce and Industry, acting through its sole managing
partner Tat Investments Management N.V., a
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limited liability company under the laws of the Netherlands Antilles, registered
under number 75286 in the commercial register of the Curacao Chamber of
Commerce, acting through its managing director (currently Mr. Maarten Jacobus
Robberts), such Sellers' Representative having the full authority to act on
behalf of each of the Sellers individually and on behalf of all the Sellers
together as further set forth in art. 6.7 hereof and as evidenced by a Sellers'
Representative Agreement entered between all the Sellers and the Sellers'
Representative and handed over to the Purchaser;
Semtech Group means the Purchaser, its (ultimate) parent company Semtech Corp.
and all of their Affiliates, for the avoidance of doubt to the exclusion of the
Companies;
Shares means shares of Xemics SA, each with a nominal value of CHF 1 each;
Shareholders' Facility and Option Agreement means a loan and options agreement
dated June 3, 2004, entered among certain of the Sellers on one hand, and the
Company on the other hand;
Shareholders Loans means all of the interest bearing loans granted to the
Company by certain of the Sellers under the Shareholders' Facility and Option
Agreement and the Loan Agreement in the total amount of CHF 3.3 million;
Specific Estimated Social Security Cost 2005 means the total cost the Company
will incur in 2005 for social security payments and pension fund contributions
(in both instances employer contributions only) in connection with options
granted by the Company to the employees of the Companies and exercised before
the Closing as per the calculation of the CFO of the Company to be provided
prior to Closing (based on the assumption that for social se-
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curity purposes 100% of the option-related payments to employees will qualify as
salary), converted into USD at the Exchange Rate;
Specific Final Social Security Cost 2005 means the Specific Estimated Social
Security Cost 2005 adjusted in accordance with art. 2.2B;
Specific Social Security Cost 2006 means the total cost the Company may incur in
2006 for social security tax payments and pension fund contributions (in both
instances employer contributions only) in connection with options granted by the
Company to the employees of the Companies and exercised before the Closing
converted into USD at the Exchange Rate; for the avoidance of doubt to the
exclusion of cost created by virtue of the Companies making any voluntary change
to their pension plan;
Specific Estimated Stamp Duty Cost 2005 means an amount equivalent to the stamp
duty owed by the Company in connection with the Specific Social Security Cost
2005 and possibly also in connection with the related employee contributions and
tax at source as per the ruling from the federal tax administration to be
obtained by Sellers prior to Closing and calculated based on the Specific
Estimated Social Security Cost 2005 (and on the estimated amount of the related
employee contributions and tax at source if necessary based on the
aforementioned ruling), converted into USD at the Exchange Rate;
Specific Final Stamp Duty Cost 2005 means the Specific Estimated Stamp Duty Cost
2005 adjusted in accordance with art. 2.2B;
Specific Stamp Duty Cost 2006 means an amount equivalent to the stamp duty owed
by the Company in connection with the Specific Social Security Cost 2006 and
possibly also in connection with the related employee contributions and tax at
source as per the ruling from
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the federal tax administration to be obtained by Sellers prior to Closing,
converted into USD at the Exchange Rate;
Taxes means all Swiss and foreign tax liabilities whether actual or contingent
in respect of income taxes, sales taxes, VAT, any turnover or cost related
taxes, withholding taxes, stamp duties and any other transfer duties, payroll
taxes, social security taxes and contributions, pension fund contributions and
property taxes and all other levies, customs, taxes and public duties of any
kind and any penalties and interest related thereto;
USD means United States Dollars, being the lawful currency of the United States
of America;
Xemics Group means the Companies together.
ARTICLE 2
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Sale and Purchase of Shares,
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Consideration
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2.1 Sale and Purchase of Shares. Subject to the terms and conditions of
this Agreement, the Sellers hereby agree to sell to the Purchaser and
the Purchaser agrees to buy from the Sellers all of the Shares.
2.2 Purchase Price. The purchase price for all the Shares consists of USD
43'000'000, minus the Specific Final Social Security Cost 2005, minus
the Specific Final Stamp Duty Cost 2005, minus the amount of the
Shareholders Loans converted into USD at the Exchange Rate, minus the
amount of accrued interest for the Shareholders
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Loans up to the Closing, converted into USD at the Exchange Rate,
plus any First Purchase Price Adjustment, plus any Second Purchase
Price Adjustment (the Purchase Price). Any First Purchase Price
Adjustment and any Second Purchase Price Adjustment are payable by
the Purchaser to the Sellers' Representative after the Closing,
subject to the conditions set forth in art. 2.3 hereof.
2.2A Closing Payment. At and subject to Closing, the amount of USD
43'000'000 minus the Specific Estimated Social Security Cost 2005,
minus the Specific Estimated Stamp Duty Cost 2005 shall be payable by
the Purchaser to the Sellers' Representative and the Escrow Agent as
set forth in art. 3.4.2 hereof (the Closing Payment), such Closing
Payment to account (i) as full compensation, to the relevant lenders,
for their assignment to the Purchaser of their loans plus accrued
interest up to the Closing under the Shareholders Loans, and (ii) as
full settlement of the Purchase Price, subject only to any adjustment
of the Specific Estimated Social Security Cost 2005 and the Specific
Estimated Stamp Duty Cost as set forth in art. 2.2B hereof and any
Purchase Price Adjustments being payable after the Closing as set
forth in art. 2.3 hereof.
2.2B Adjustment of Specific Estimated Social Security Cost 2005 and
Specific Estimated Stamp Duty Cost 2005. If the actual costs of the
Company to be captured under the definition of "Specific Estimated
Social Security Cost 2005" deviate from the Specific Estimated Social
Security Cost 2005 by more than 10% (in particular if the social
security authorities agree that less than 100% of the option-related
payments to employees qualify as salary), then such actual costs
shall be deemed to be the Specific Final Social Security Cost 2005
and the Specific Estimated Stamp Duty Cost 2005 shall be recalculated
accordingly to the Specific Final Stamp Duty Cost 2005, and (i) the
balance of the Specific Estimated Social Security Cost 2005 minus
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the Specific Final Social Security Cost 2005, and (ii) the balance of
the Specific Estimated Stamp Duty Cost minus the Specific Final Stamp
Duty Cost shall be reimbursed by the Sellers to the Purchaser (if
such balances are negative numbers), respectively by the Purchaser to
the Sellers by payment to the Sellers' Representative (if such
balances are positive numbers), as the case may be. In case of a
deviation of 10% or less, the Specific Estimated Social Security Cost
2005 shall be deemed the Specific Final Social Security Cost 2005,
and the Specific Estimated Stamp Duty Cost 2005 shall be deemed the
Specific Final Stamp Duty Cost 2005.
2.3 Purchase Price Adjustments
2.3.1 First Purchase Price Adjustment. If the Relevant Gross Revenue meets
or exceeds the Plan, or misses the Plan by no more than nine per
cent, then a First Purchase Price Adjustment is payable by the
Purchaser to the Sellers. If the Relevant Gross Revenue meets or
exceeds the Plan, then the First Purchase Price Adjustment amounts to
USD 8 million (eight million) reduced by the Specific Social Security
Cost 2006 applicable to such USD 8 million. If the Relevant Gross
Revenue misses the Plan by more than zero, but less than nine per
cent (Percentage of Failure), then the First Purchase Price
Adjustment is equal to the amount that results, if the amount of USD
8 million is shortened proportionately in line with the Percentage of
Failure and reduced by the Specific Social Security Cost 2006
applicable to such shortened amount, all as illustrated on Schedule
2.3.1. In both cases, a further reduction shall be made in an amount
equivalent to the portion of the Specific Stamp Duty Cost 2006
applicable to the portion of the Specific Social Security Cost 2006
as per this art. 2.3.1. For the sake of clarity: if the Relevant
Gross Revenue misses the Plan by nine or more per cent, then no
Purchase Price Adjustment is payable.
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2.3.2 Second Purchase Price Adjustment. If the Relevant Gross Revenue
exceeds the Plan, then the Second Purchase Price Adjustment is
payable by the Purchaser to the Sellers. If the Relevant Gross
Revenue exceeds the Plan by ten or more per cent, then the Second
Purchase Price Adjustment amounts to USD 8 million (eight million)
reduced by the portion of the Specific Social Security Cost 2006
applicable to such USD 8 million. If the Xemics Group's Relevant
Gross Revenue exceeds the Plan by more than zero, but less than ten
per cent (Percentage of Increase), then the Second Purchase Price
Adjustment is, in line with the Percentage of Increase, equal to a
proportional amount of USD 8 million reduced by the portion of the
Specific Social Security Cost 2006 applicable to such proportional
amount, all as illustrated on Schedule 2.3.2. In both cases, a
further reduction shall be made in an amount equivalent to the
portion of the Specific Stamp Duty Cost 2006 applicable to the
portion of the Specific Social Security Cost 2006 as per this art.
2.3.2.
2.3.3 Payment of any Purchase Price Adjustment. Any Purchase Price
Adjustment pursuant to art. 2.3. hereof shall be paid in immediately
available funds in USD for value within 10 Business Days of the
Relevant Gross Revenue having become final and binding by wire
transfer to a bank account to be designated in writing by the
Sellers' Representative.
2.4 Relevant Gross Revenue. The Purchaser shall cause management of the
Xemics Group to prepare, in compliance with IFRS and the Group
Accounting and Consolidation Principles and taking into account art.
6.8.2(vii), the Consolidated income statement of the Xemics Group for
the period May 2, 2005 to April 30, 2006, showing the Relevant Gross
Revenue and to deliver such Consolidated income statement of the
Xemics Group to the Sellers' Representative and to the Purchaser
within 15 Business Days from May 1, 2006.
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(a) Unless the Sellers' Representative or the Purchaser give written
notice of objection to the other within 20 Business Days following
receipt of such Consolidated income statement, against the therein
stated Relevant Gross Revenue, thereby specifying the reasons for
objection in reasonable detail, the Relevant Gross Revenue shown in
the delivered Consolidated income statement shall be final and
binding for purposes of any Purchase Price Adjustment.
(b) In the event of an objection by the Sellers' Representative or by
the Purchaser, the Sellers' Representative and the Purchaser shall in
good faith attempt to resolve such disagreement within 20 Business
Days upon receipt of a notice of objection in order to agree in
writing on the amount of the Relevant Gross Revenue. If they do, then
such agreed amount of Relevant Gross Revenue shall be final and
binding.
(c) Objections may be raised only against the recognition and
Consolidation of Relevant Gross Revenue, but no objection shall be
admissible against adverse impacts on the Relevant Gross Revenue that
are the result of reasonable business decisions taken by the Company
and/or the Purchaser post Closing, it being understood that any
diversion of revenue streams allocable to the Companies, to the
Purchaser or an Affiliate of the Purchaser outside the Xemics Group
shall not be permitted for purposes of calculating the Relevant Gross
Revenue. For the avoidance of doubt, any such controversy other than
over the recognition or the Consolidation of Relevant Gross Revenue
cannot be determined by the Independent Relevant Gross Revenue
Appraiser. (Any such controversy other than over the recognition or
the Consolidation of Relevant Gross Revenue, including over
compliance with art. 6.8 hereof, is subject solely to arbitration.)
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(d) If the Sellers' Representative and the Purchaser fail to agree
within the stated period, then each Party shall be entitled to submit
the controversial matter to the Independent Relevant Gross Revenue
Appraiser. Upon receipt of any such submission, the Independent
Relevant Gross Revenue Appraiser shall forthwith consult with the
Sellers' Representative and the Purchaser and thereupon resolve such
difference and determine the Relevant Gross Revenue (within the range
of the Parties' positions) within no longer than 30 Business Days
following receipt of the submission, thereby acting as an expert
arbiter ("Schiedsgutachter"). No later than 5 Business Days before
rendering his decision, the Independent Relevant Gross Revenue
Appraiser shall discuss his findings with both the Sellers
Representative and the Purchaser on a preliminary basis. Except in
the event of manifest error, the determination of the Relevant Gross
Revenue by the Independent Relevant Gross Revenue Appraiser shall be
final and binding. The expenses of the Independent Relevant Gross
Revenue Appraiser shall be equally borne by all the Sellers (jointly
and severally) on the one hand and by the Purchaser on the other
hand. Sellers' Representative and the Purchaser shall advance
reasonably anticipated fees and cost of the Independent Relevant
Gross Revenue Appraiser upon first demand by him.
(e) Upon notice of the Relevant Gross Revenue to the Sellers'
Representative, the Purchaser shall procure that the Sellers'
Representative and its advisors are promptly given access during
ordinary business hours to the books, records and personnel of the
Xemics Group as the Sellers' Representative may reasonably request
for the purpose of reviewing the books and records of the Xemics
Group in the context of the determination of the Relevant Gross
Revenue.
(f) The Sellers' Representative and the Purchaser shall procure that
the Independent Relevant Gross Revenue Appraiser will be furnished
with all documents and infor-
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mation needed. Apart from procedural matters, the Independent
Relevant Gross Revenue Appraiser shall only have authority to decide
whether the Relevant Gross Revenue and its elements are correct and,
if not so, to make the appropriate alterations in order to correct
any relevant inaccuracy, explaining in writing the reasoning for such
alterations. The Independent Relevant Gross Revenue Appraiser shall
be bound by the principles established by this Agreement and by this
art. 2.4 in particular, to the Group Accounting and Consolidation
Principles and to IFRS, with the Agreement and in particular this
art. 2.4 prevailing over the Group Accounting and Consolidation
Principles and the latter prevailing over IFRS. (For the avoidance of
doubt: any controversy other than over the recognition or the
Consolidation of Relevant Gross Revenue, including over compliance
with art. 6.8 hereof, is subject solely to arbitration.)
(g) Except if otherwise agreed by the Sellers' Representative and the
Purchaser, the Independent Relevant Gross Revenue Appraiser shall
determine his own procedure, but he shall comply with the principle
of due process and shall in particular hear both sides and give them
opportunity to make written and oral representations to him; he shall
require each the Sellers' Representative and the Purchaser to supply
the other side with a copy of any written representation at the same
time as made to him and he shall permit each side to be present while
oral representations are being made to him by the other side. He
shall make his analysis and make his determination strictly fact
based.
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ARTICLE 3
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Closing
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3.1 Actions Prior to Closing
3.1.1 In General. Unless specifically otherwise provided herein, the
Parties undertake to use their commercially reasonable best efforts
to procure that (i) the conditions precedent set forth in art. 3.3.
be satisfied expeditiously, (ii) all their Affiliates do all acts and
things as are necessary (and within their power) to implement the
transactions contemplated by this Agreement. The Parties shall fully
cooperate and promptly inform each other on any development that is
relevant to achieve the Closing.
3.1.2 Filings and Submissions. The Purchaser shall use its best efforts to
make (if permitted under applicable law) all filings and submissions
legally required, as listed on Schedule 3.1.2 within 10 Business Days
following the date of this Agreement. No Party shall make any such
listed filing or submission without the prior consent of the other
Party (such consent not to be delayed and not to be unreasonably
withheld).
3.1.3 Termination of Agreements. (a) The Sellers shall consent to and shall
cause a consensual termination as of Closing of all the Options and
Participation Agreements, except to the extent otherwise instructed
in writing by the Purchaser; in respect of each such Options and
Participation Agreement terminated before or as of the Closing, each
of the relevant Sellers shall confirm to the Purchaser in writing
that as of the Closing and beyond the Closing he has no claim
whatsoever against any of the Companies or the Purchaser.
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(b) Each of the Sellers shall consent to and shall cause a consensual
termination as of or before the Closing of the agreements between him
and any of the Companies listed on Schedule 4.20, except to the
extent otherwise instructed by the Purchaser; in respect of each such
agreement terminated before or as of the Closing, each of the
relevant Sellers shall confirm to the Purchaser in writing that as of
the Closing and beyond the Closing he has no claim whatsoever against
any of the Companies or the Purchaser. It is agreed between the
Parties that the two agreements with Seller 6 shall not be terminated
and shall remain effective beyond the Closing.
3.1.4 Third Party Consents. The Sellers undertake to use reasonably best
efforts to procure the consent to this transaction by the Companies'
contractual parties of the agreements listed on Schedule 4.10.2.
3.1.5 intentionally left blank.
3.1.6 Certain Patents and Technology Licenses. The Sellers shall cause the
Company to ascertain and assist the Purchaser in achieving that until
the Closing certain filings are made in respect of patents of the
Company that are not yet registered in the Company's name and that
certain license agreements are entered between the Company and/or
third parties, all as further set forth on Schedule 3.1.6.
3.1.7 Closing Memorandum. No later than 5 Business Days prior to the
Closing Date, Sellers' legal counsel shall prepare in collaboration
with Purchaser's legal counsel, a closing memorandum which shall
serve as evidence for the Closing.
3.2 Closing Date and Location. Closing shall take place at the offices of
Baker & McKenzie Zurich, Zollikerstrasse 225, 8008 Zurich, or at such
other location as the
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Parties may mutually agree on in writing, no later than six Business
Days after all conditions precedent set forth in art. 3.3 hereof have
been satisfied or waived (where waiver is permissible).
3.3 Conditions Precedent to Closing.
3.3.1 Conditions Precedent to Closing for Both the Sellers and the
Purchaser. The obligation of the Sellers and of the Purchaser to
effect the transactions set forth in this Agreement shall be subject
to the satisfaction or waiver of the following conditions:
(a) All governmental, administrative or regulatory approvals as set
forth on Schedule 3.3.1 shall have been obtained and any waiting
period under the merger control laws set forth on Schedule 3.3.1
shall have expired or been terminated by the competent authorities;
(b) No action is pending or threatened and no order, injunction or
decree of any court, administrative body or arbitration tribunal
exists which seeks to enjoin, restrain, impede or levy a substantial
difficulty on the consummation of the transactions contemplated
hereunder.
3.3.2 Conditions to Obligations of the Purchaser. The obligations of the
Purchaser to effect the transactions contemplated under this
Agreement shall be subject to the satisfaction or waiver of the
following conditions:
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(a) that the Sellers shall have performed in all material respects
all of their obligations undertaken in this Agreement or pursuant
hereto that are to be performed on or by the Closing ;
(b) that all agreements pursuant to art. 3.1.3 (a) hereof, including
all Options and Participations Agreements, have been terminated as
set forth in art. 3.1.3 (a) and with full release from liability for
the Company for all its obligations thereunder before or as of the
Closing;
(c) that the agreements pursuant to art. 3.1.3 (b) hereof have been
terminated as set forth in art. 3.1.3 (b) and with full release from
liability for the Company for all its obligations thereunder before
or as of the Closing;
(d) that the calculations of the Specific Estimated Social Security
Cost 2005 and of the Specific Estimated Stamp Duty Cost 2005 are
provided by the Sellers;
(e) that written evidence is provided by the Sellers that Seller 6
has waived its right to terminate any of the agreements listed on
Schedule 4.10.2 and to which it is a party.
3.3.3 Condition to Obligations of the Sellers. The obligations of the
Sellers to effect the transactions contemplated under this Agreement
shall be subject to the satisfaction or waiver of the condition that
the Purchaser shall have performed in all material respects all of
its obligations undertaken in this Agreement or pursuant hereto that
are to be performed on or by the Closing Date.
3.3.4 Right to Terminate this Agreement. (a) Should the conditions
precedent to Closing set forth in art. 3.3.1 or 3.3.2 not be met by a
date one month after the signing of
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this Agreement, the Purchaser may terminate this Agreement, unless
the Purchaser failed to use all commercially reasonable best efforts
to procure the satisfaction of any such condition.
(b) Should the conditions precedent to Closing set forth in art.
3.3.1 or 3.3.3 not be met by a date one month after the signing of
this Agreement, the Sellers acting through the Sellers Representative
may terminate this Agreement, unless the Sellers failed to use all
commercially reasonable efforts to procure the satisfaction of any
such condition.
(c) If this Agreement is terminated pursuant to and in compliance
with this art. 3.3.4, all provisions of this Agreement shall cease to
be effective except for art. 1, 9, and 10.
3.4 Closing Actions.
3.4.1 Closing Actions by the Sellers. At the Closing the Sellers shall:
- deliver to the Purchaser certificates representing the Shares,
duly endorsed, by the registered shareholders and Sellers in
favor of the Purchaser;
- deliver to the Purchaser original written resolutions of the
board of directors of Xemics SA consenting to the transfer of
the Shares to the Purchaser, also consenting to the
registration of the Purchaser as shareholder in the relevant
share register;
- deliver to the Purchaser the complete and updated share
registers of Xemics SA, together with complete copies of
assignment deeds of all previous Share
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transfers and resolutions of the board of directors of Xemics
SA evidencing board approval in respect of each such previous
Share transfer since incorporation of Xemics SA;
- deliver to the Purchaser resignation letters by all board
members of the Companies to the Seller effective as of
Closing, including a confirmation by each resigning director
to the effect that he holds no claims whatsoever against the
Companies;
- deliver to the Purchaser written evidence of termination of
the agreements pursuant to and in compliance with art. 3.1.3
(a) and (b) hereof, together with written declarations of all
the relevant Sellers confirming that as of the Closing and
beyond the Closing they have no claims against any of the
Companies or the Purchaser in connection with any such
agreement terminated before or as of the Closing;
- deliver to the Purchaser written declarations of all the
lenders under the Shareholders Loans, assigning all such
lenders' loans to the Purchaser with effect as of the Closing,
showing the consent of the Company to such assignment and
confirming that such lenders, upon Closing and henceforth will
have no claims against any of the Companies or the Purchaser
in connection with the Shareholders Loans.
3.4.2 Closing Actions by the Purchaser. At the Closing the Purchaser shall,
against delivery by the Sellers of the items according to art. 3.4.1,
pay the Closing Payment as follows:
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- the amount calculated as per art. 2.2A minus USD 5.5 million,
into the account of the Sellers' Representative with Credit
Suisse, CH-8000 Zurich, account number [xxxx-xxxxxx-xx-x],
SWIFT: CRESCHZZ80A, IBAN-No: CH47 0483 5014 3543 9200 1;
evidenced by delivery by Purchaser to the Sellers'
Representative of a copy of the SWIFT forms executed by the
Purchaser's bank;
- the amount of USD 5.5 million into the Escrow Account;
evidenced by delivery by the Purchaser to the Sellers'
Representative of a copy of the SWIFT forms executed by
Purchaser's bank;
3.5 Default Interest. If the Closing is delayed beyond the Closing Date
stated in art. 3.2 hereof due to the fault of a Party, then such
Party shall owe interest of 5 per cent per annum to the other Party
without the need for the other party to give notice of default
provided that such other Party is without fault for such delay.
ARTICLE 4
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Representations and Warranties of the Sellers
---------------------------------------------
The Sellers jointly and severally represent and jointly and severally
warrant for the Companies as of the time of signing of this Agreement
and as of the Closing (except where otherwise indicated or required
by the context) , to the exclusion of the statutory warranties
("Gewahrleistungen"), as follows:
4.1 Organization and Qualification. The Companies are duly organized and
validly existing under the laws under which they have been
incorporated and have full right
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and authority to own and to operate their properties and to engage in
the business in which they are now engaged. Schedule 4.1 contains the
articles of incorporation of Xemics SA and of Xemics USA, Inc., as
currently in force and as in force at Closing.
4.2 Capital Structure. The Companies have the capital set forth on
Schedule 4.2. The Shares sold pursuant to art. 2.1 represent the
whole share capital of Xemics SA. The Shares have been validly issued
and are fully paid in. No further capital other than as shown on
Schedule 4.2, no non-voting stock, convertible securities, stock
options or similar rights in the Companies and their share capital
that may have been created or issued or agreed to be issued prior to
Closing will be in existence as of or any time after the Closing, or
have any effect as of or any time after the Closing.
4.3 Ownership and Corporate Structure. As of the Closing Date, the
Sellers are the sole owners of and have good and valid title to all
of the Shares, free and clear of all liens, encumbrances, options,
charges, equities and claims arising from any privilege, pledge or
security arrangement. On the Closing Date the Sellers have full right
and capacity to transfer and sell complete title to the Shares.
Upon delivery of all the Shares and of the documents mentioned in
art. 3.4.1 hereof, the Purchaser will receive good and valid title to
such Shares, free and clear of all liens, encumbrances or other
rights of third parties.
The Company, directly or indirectly, owns all the shares of Xemics
USA, Inc., as set forth on Schedule 4.3, free and clear of all liens,
encumbrances, options, charges, equities and claims arising from any
privilege, pledge or security arrangement.
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The Company owns no subsidiary other than Xemics USA, Inc.
4.4 Financial Statements. Schedule 4.4 (a) contains the audited Group
Financial Statements as of December 31, 2004 and Schedule 4.4 (b)
contains the unaudited financial statements of the Companies as of
April 30, 2005. These audited Group Financial Statements as of
December 31, 2004 and the unaudited financial statements of the
Companies as of April 30, 2005 are in accordance with IFRS and the
Group Accounting and Consolidation Principles described on Schedule
4.4 (c) and in accordance with IFRS and such Group Accounting and
Consolidation Principles show a true and fair view of the
Consolidated financial position of the Xemics Group. Except as
disclosed on Schedule 4.4 (c), the Group Accounting and Consolidation
Principles have been consistently applied in the business years 2002,
2003 and 2004 and up to April 30, 2005.
4.5 No Undisclosed Liabilities. The Companies have no undisclosed
liabilities or obligations, actual or potential, matured or not
matured, which individually or in the aggregate (i) have not been
stated in or reflected in or reserved against in the audited Group
Financial Statements of December 31, 2004 or in the unaudited
financial statements of the Companies as of April 30, 2005, and (ii)
have not arisen in the ordinary course of business consistent with
past practices since December 31, 2004.
4.6 Absence of Adverse Changes. In the period between December 31, 2004,
and the Closing Date the Companies:
- have conducted and will conduct their business in the ordinary
course in all material respects and have not and will not have
made any unusual contracts, contract changes or commitments,
and have not and will not have sold, as-
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signed or transferred any tangible or intangible assets other
than in the ordinary course of business;
- have not and will not have suffered any material damage,
destruction or loss by fire or other casualty which is not
covered by insurance;
- have not and will not have made any declaration or setting
aside or payment of any dividend or any other distribution of
profit or any direct or indirect redemption, purchase or other
acquisition of any quotas or shares of the Companies;
- have not and will not have increased the total compensation
payable to their employees with effect on or after January 2,
2005 and have neither adopted and will not have any new profit
sharing plan, bonus plan, pension or benefit plan nor changed
any existing plans.
4.7 Permits and Authorizations. The Companies have all the permits and
authorizations which are necessary to carry on their business. With
the exception of the Change of Control Permits listed on Schedule 4.7
the fact that this Agreement is executed and the transaction
contemplated herein is consummated will not lead to the automatic
termination of such permits and authorizations and will not give rise
to any right of the competent authorities or third parties to
terminate such permits and authorizations.
4.8 Claims and Litigation. Except as set forth on Schedule 4.8, there are
no actions, suits or proceedings pending or threatened in writing
against the Companies either in court or before any administrative
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ally could result in a loss for or claim against any of the
Companies in excess of CHF 10'000.
4.9 Taxes. Up to the Closing, the Companies have timely filed all tax
returns for all Taxes required by law to have been filed and all such
tax returns have been correctly prepared and are true and complete
and all Taxes due with regard to income and activities up and until
the month end immediately prior to the Closing have been fully paid
or have been fully reserved for. Except for the Specific Social
Security Cost 2005 and possibly for the Specific Social Security Cost
2006 and the related employee charges, the Companies have no and will
not incur any Tax liability in connection with events prior to and up
to the Closing. For the sake of good order, it is expressly stated
that the Parties have agreed that the Specific Social Security Cost
2005 shall not be provided for in the unaudited financial statements
of the Companies as of April 30, 2005.
The Sellers undertake to indemnify the Purchaser and the Companies
irrespective of the limitation in art. 5.4.3(ii) (disclosure) and the
Purchaser's level of knowledge and irrespective of the limitation in
art. 5.4.1 (De Minimis), but within the other limitations of art. 5.4
for all losses, costs or damage resulting from any breach of the
representations and warranties of this art. 4.9. This includes,
without limitation, any claims for Taxes which are raised against the
Companies in connection with all options granted to the Sellers and
to the employees of the Companies by the Company before the Closing,
except to the extent such Tax liability (i) was provided in the
unaudited financial statements of the Companies as of April 30, 2005,
(ii) is taken into account in the calculation of the Closing Payment
or the payments of a First and a Second Purchase Price Adjustment, if
applicable, or (iii) is a social security charge
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to be borne by employees related to the Specific Social Security Cost
2005 and possibly the Specific Social Security Cost 2006.
4.10 Agreements with Third Parties. Except as disclosed on Schedule
4.10.1, the Companies are not in breach or default under any
agreements to which they are a party.
With the exception of the agreements set forth on Schedule 4.10.2
neither the execution of this Agreement nor the consummation of the
transaction contemplated herein will terminate any agreements to
which the Companies are a party or give rise to any right of a third
party to terminate such agreements.
Schedule 4.10.3 contains a list of all
- license agreements;
- leases and leasing contracts which provide for annual payments
of more than CHF 10'000;
- agreements with suppliers or customers with a term of more
than 3 months or a contract value of more than CHF 50'000 or
which grant customers a payment term of more than sixty days;
- contracts with works councils, labor unions or other employee
organizations;
- distributorship and agency agreements;
- guarantees and sureties granted with respect to any obligation
of third parties (including the Seller and any parties related
with him);
- joint venture and cooperation agreements;
- confidentiality agreements;
- management and consulting agreements;
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- severance contracts with employees, agents and distributors;
- non-compete agreements, obliging the Companies;
- other contracts or commitments in excess of CHF 50'000 or
which cannot be terminated on three months' notice without
payment of compensation.
the Companies have concluded.
Copies of all such agreements have been provided to the Purchaser
before the signing of this Agreement. These copies are true, accurate
and complete and these agreements are binding and in force on the
Closing Date and the text of these agreements covers the full scope
of such agreements and there are no other oral or written agreements
between the Companies and the third parties concerned.
4.11 Intellectual Property/Know-how. As of the signing of this Agreement
and as of the Closing, the Companies own or have adequate license to
use all the know-how and all patents, trademarks, trade names,
copyrights and other intellectual property rights which are necessary
for the conduct of their business as it is now conducted. In
particular, all the patents, trade names, copyrights and trademarks
listed on Schedule 4.11.1(i) are valid and owned by the Companies,
except as disclosed on such Schedule. Such patents, trade names,
copyrights and trademarks do not violate the rights of any third
party. Third parties do not have any rights to such patents, trade
names, copyrights and trademarks and the Companies have no
obligations to disclose such patents, trade names, copyrights and
trademarks to any third parties, except as disclosed on Schedule
4.11.1(i).
Schedule 4.11.1(ii) lists all license agreements the Companies are a
party to in respect of know how and intellectual property licensed to
any of the Companies. As of
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the signing of this Agreement and as of the Closing, the Companies
are and will not be in default or breach of any of these license
agreements.
4.12 Employment Matters. Schedule 4.12.1 contains a list of all employment
agreements of the Companies concerning employees which have either
(i) signature authority, (ii) an annual salary exceeding CHF 150'000
or (iii) whose employment agreements cannot be terminated on three
months' notice or less without compensation or who have a claim for
compensation upon a change of control over the Company. Complete
copies of these employment agreements have been delivered to the
Purchaser separately. The text of these agreements covers the full
scope of the agreements between the Companies and the employees
concerned and there are no other agreements concerning the employment
relationship. Sellers, furthermore, warrant that such agreements are
binding and in force on the Closing Date.
As of the Closing Date, the Xemics Group's total liability for
overtime work does not exceed the amount of CHF 25,000.
All accrued pension claims of the Companies' employees are either
covered by funds of special foundations, by insurance contracts or
provisions the Companies have specifically established for such
purpose.
4.13 Pensions. Up to the end of April 30, 2005, the Companies have fully
paid or made adequate provisions for their legal and contractual
liabilities accrued up to those dates to make contributions or pay
insurance premiums for purposes of funding the existing pension plans
for the Companies' employees. The Sellers further warrant that as of
December 31, 2004, all accrued pension claims are fully covered by
funds
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of special foundations, by insurance contracts or provisions
specifically established for such purpose.
4.14 Insurance Policies. All insurance policies of the Companies are
listed on Schedule 4.14. Except as disclosed on such Schedule, all
listed policies are in full force at the Closing Date and the
Companies have done nothing either by way of action or inaction which
might lead to the cancellation of such policies. Such insurance
coverage is adequate for the risks associated with the Companies'
activities and assets.
4.15 Compliance with the Law. The Companies are not in material violation
of any applicable laws, ordinances, regulations, decrees or orders of
any government entity.
In particular the Companies and their plants, operations and
equipment comply with all applicable labor, occupational, health,
safety and environmental laws, regulations, decrees and orders and no
competent authority has informed the Companies that they will issue
any orders addressing non compliance with the law.
4.16 Environmental Matters. No hazardous substance, waste, pollutant or
other substance regulated under any applicable environmental or waste
disposal law, statute, regulation, ordinance or other legal
requirement (Environmental Law) is present on, in, under or any real
property leased or used by the Companies. No current or pending
Environmental Law imposes or proposes to impose standards or
requirements which may require the Companies to make capital
expenditure in excess of CHF 25'000 in the aggregate to comply with
such standards or requirements. Pending as used in the immediately
preceding sentence means an Environmental Law which has been enacted
and published, but has not yet taken effect. The Companies have no
liability with respect to cleanup, remediation, removal or abatement
of any facil-
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ity to which any waste or by-product of the Companies has been sent,
directly or indirectly, for treatment, storage, disposal or
recycling. The Companies are in compliance with all Environmental
Laws.
4.17 Product Liability. Third parties have no claims, actual or
contingent, against the Companies in connection with any products
delivered or services rendered by the Companies before the Closing
Date.
4.18 Real Property. Schedule 4.18 contains a true and complete list of all
leases, subleases and other agreements under which the Companies use
or occupy or have the right to use or occupy any real property.
Except as set forth on Schedule 4.18 (i) the Companies are not in
default in any material respect under any real property lease and no
claim of any default thereunder has been received by the Sellers or
the Companies which have not been cured as of the Closing, and (ii)
all rent and other sums and charges payable by the Companies under
any of the real property leases are current and reflect normal market
prices.
4.19 Machinery, Vehicles, Equipment and Fixtures. Except as set forth on
Schedule 4.19, the Companies machinery, vehicles, equipment and
fixtures are in good condition and fit for use, subject only to
customary wear and tear.
4.20 Agreements between Sellers and the Companies. Schedule 4.20 contains
a list of all agreements between any of the Sellers and any of the
Companies that are in effect as of the date of signing of this
Agreement, except for employment agreements. Copies of all such
agreements (other than employment agreements) have been provided to
the Purchaser before the signing of this Agreement. These copies are
true, accurate and complete and the text of these agreements covers
the full scope of such
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agreements and there are no other oral or written agreements between
the Companies and any of the Sellers, except for employment
agreements.
4.21 Fair Disclosure. All information contained in the Schedules to this
Agreement and all information otherwise provided to the Purchaser in
the context of this Agreement is accurate and complete in all
material respects and not misleading and there are no circumstances
in relation to the assets, business or financial condition of the
Companies which render any such information misleading.
ARTICLE 5
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Remedies
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5.1 Term of Warranties and Representations. The representations and
warranties set forth in art. 4 hereof shall expire 15 months after
the Closing Date, except for the representations and warranties in
art. 4.1, 4.2, 4.3 and 4.9 which shall expire five years after the
Closing Date. A claim for indemnification pursuant to art. 5.3 hereof
shall be deemed timely raised, if a request for arbitration is
dispatched to the ICC Secretariat before the end of the last day of
the above referred 15 months/five years period.
5.2 Notification and Examination Requirements. The Parties waive the
notification and examination requirements under art. 201 of the Swiss
Code of Obligations. During the first 15 months of the warranty
period, a breach of warranty may be notified at any time, but not
later than on the last day of this 15 months' period. A breach of the
representations and warranties in art. 4.1, 4.2, 4.3 and 4.9 not
notified in the first 15 months of the warranty period, can be
notified afterwards until five years after
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the Closing; however after the expiry of 15 months since the Closing,
the Purchaser must notify the Sellers' Representative within the
later of sixty days after the expiry of 15 months since the Closing
or since the Purchaser has detected a breach of warranty with
reasonable certainty. (For the avoidance of doubt, any breach of the
warranty in art. 4.1, 4.2, 4.3 and 4.9 which has been detected with
reasonable certainty before the end of 15 months since the Closing
must be notified to the Seller' Representative within sixty days from
the expiry of 15 months since the Closing Date.) Any notification
shall describe in reasonable detail the breach of warranty and any
damage suffered. Any breach of warranty not properly notified in
accordance with the foregoing shall be deemed waived, and the
Purchaser shall have no claims or other remedies whatsoever in
connection with such breach.
5.3 Indemnification. (a) Subject to the limitations set forth in art. 5.4
hereof, the Sellers undertake to indemnify and hold harmless the
Purchaser, or, as the case may be, the Xemics Group for the benefit
of the Purchaser, in respect of any losses, costs or damages incurred
or suffered by the Xemics Group as a whole and of any losses, costs
or damages incurred or suffered by the Purchaser directly which would
not have been incurred or suffered had the representations and
warranties of the Sellers according to art. 4 hereof been true and
correct.
(b) Subject to art. 5.4.2 (Maximum Amounts), any such indemnification
for the breach of any representations or warranties shall primarily
be paid out of the funds held in the Escrow Account. If and when and
to the extent the total amount of accrued claims for indemnification
pursuant to this art. 5.3, as notified (or, to the extent already
received by the Purchaser: as received), exceeds the Escrow Amount,
the Purchaser may collect any such indemnification amounts in excess
of the Es-
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crow Amount directly from the Main Shareholders, but not from the
Sellers other than the Main Shareholders.
(c) To the extent an indemnification claim of the Purchaser pursuant
to this art. 5.3 is payable out of the funds held in the Escrow
Account, a proportionate share of interest accrued in the Escrow
Account up to the payment date shall be added and paid to the
Purchaser. To the extent an indemnification claim of the Purchaser
pursuant to this art. 5.3 is payable by any of the Main Shareholders,
interest of five per cent shall accrue from the date of claim
notification up to the date of payment and shall be payable to the
Purchaser.
5.4 Limitations.
5.4.1 De Minimis. (a) The Sellers shall have no obligation to pay any
amounts pursuant to art. 5.3 hereof unless the Purchaser's aggregate
indemnity claim pursuant to art. 5.3 hereof is higher than CHF
100'000 (the amount of CHF 100'000 being a threshold and not a
deductible of any total indemnity claim pursuant to this art. 5).
(b) The Sellers shall have no obligation to pay any amounts pursuant
to art. 5.3 hereof unless an individual matter of breach of a
representation or warranty results in an individual indemnity claim
pursuant to art. 5.3 hereof that exceeds CHF 10'000. For the
avoidance of doubt, several claims based on the same set of facts or
circumstances or origin shall be deemed to be one individual claim.
5.4.2 Maximum Amount. The Sellers' total liability for indemnification
pursuant to art. 5.3 hereof for all breaches of art. 4 hereof shall
be limited to USD 15.5 million, subject to the following:
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(i) if and when the Purchaser's aggregate claim plus accrued interest
for indemnification pursuant to art. 5.3 hereof exceeds the Escrow
Amount, only the Main Shareholders shall be liable to the Purchaser
for amounts in excess of the Escrow Amount, but none of the Sellers
other than the Main Shareholders;
(ii) the total liability for indemnification pursuant to art. 5.3
hereof for all breaches of the representations and warranties of art.
4 other than art. 4.1, 4.2, 4.3 and 4.9 shall be limited to the
Escrow Amount;
(iii) if and to the extent a breach of art 4.1, 4.2, 4.3 or 4.9 is
notified by the Purchaser only after the expiry of 15 months since
the Closing, the liability for indemnification extends only to the
Main Shareholders, but not to any of the Sellers other than the Main
Shareholders.
5.4.3 Exclusion of Liability. The Sellers shall not be liable in respect of
a claim of the Purchaser for breach of warranties and
representations:
(i) if and to the extent that any provision, reserve or expense
for the matter giving rise to the claim was taken into account
in the audited Group Financial Statements as of December 31,
2004; or in the unaudited financial statements of the
Companies as of April 30, 2005.
(ii) if and to the extent that the matter giving rise to a claim
was disclosed in one of the Schedules attached to this
Agreement. In all other respects, the representations and
warranties herein and the Purchasers' ability to claim for
misrepresentations or breach of warranty shall not be excluded
or limited by any knowledge of the Purchaser or its employees
and advisors whether resulting from due diligence
investigations or otherwise obtained.
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(iii) if and to the extent that the Purchaser or the Companies
receive compensation of any loss or damage suffered by them
under the terms of any insurance policy or from any other
third party;
(iv) if and to the extent that any Tax for which the Purchaser or
the Companies are liable is reduced as a result of any matter
giving rise to a claim of the Purchaser under the above
representations and warranties;
(v) if and to the extent that any damage or loss was caused by any
act or omission of the Purchaser or - past Closing - of the
Xemics Group or by the fact that the Purchaser or - past
Closing - the Xemics Group have failed to take the necessary
and reasonable steps to mitigate the damage caused by a breach
of a representation or warranty;
(vi) if and to the extent any damage or loss arises or is increased
as a result of the passing of or amendments to legislation,
court or administrative practice after the Closing Date
(except for the taking effect of any pending Environmental Law
within the meaning of art. 4.16).
5.5 Procedure with Third Parties and Authorities. If a breach of warranty
exists because any authorities or third parties raise claims against
the Companies or if the Companies in connection with such a breach
have to enforce any rights or claims against authorities or other
third parties, the Purchaser shall inform the Sellers' Representative
without unreasonable delay and accompanied by appropriate
documentation, and such negotiations and proceedings shall be carried
on in accordance with the reasonable instructions of the Sellers'
Representative who may also take over
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such negotiations and proceedings and conduct them himself for the
account of the Companies if (1) no prejudice or risk results for the
business of the Companies; (2) the Sellers' Representative agrees on
behalf of the Sellers to fully indemnify the Purchaser and the
Companies and waives any objections against the warranty claim, and
(3) the Sellers' Representative keeps the Purchaser at all times
fully informed of the negotiations and proceedings.
5.6 Escrow Agreement and Escrow Account. For purposes of securing at
least a portion of Purchaser's indemnification rights under this art.
5, the Sellers, acting solely through the Sellers Representative, the
Purchaser and the Escrow Agent undertake to enter into an Escrow
Agreement substantially in form and substance as attached as Schedule
5.6 hereto. The amount payable by the Purchaser into the Escrow
Account at the Closing pursuant to art. 3.4.2 hereof shall serve as
security for the Purchaser for any indemnification claims under this
art. 5, as further set forth herein and in the Escrow Agreement.
5.7 Liability of Main Shareholders. Where liability of the Main
Shareholders under this art. 5 extends only to the Main Shareholders,
each Main Shareholder shall be liable only for the percentage of the
total liability set forth for such Main Shareholder on Schedule 5.7.
ARTICLE 6
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Covenants
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6.1 Conduct of Business. The Sellers shall secure that from the date
hereof until the Closing, except with the prior written approval from
the Purchaser:
- no significant action and decision regarding investments and
employment of managers which could have a material effect on
the Companies' business or financial situation be taken by the
Companies;
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- the Companies do not change the terms and conditions of any
material agreement or contract they are a party to.
6.2 Free Access to the Companies, the Management and Information. To the
extent permitted by applicable laws, the Sellers shall use their best
efforts that from the date hereof until the Closing, the Purchaser is
given free access to the Companies and the management, their legal,
tax and other advisors, auditors, records and documents, and
information. Subject to legal disclosure obligations of any company
of the Semtech Group, in particular of Semtech Corporation, the
Purchaser agrees to keep all information so received strictly
confidential until Closing, respectively if this Agreement is
terminated and Closing does not take place, for as long until such
information becomes available in the public domain for any reason
other than a breach of this confidentiality undertaking by the
Purchaser. To the extent the Purchaser has received or prepared
copies of any documents, if the Closing does not take place the
Purchaser shall return such copies to the Company or, upon agreement
between the Purchaser and the Company, shall destroy such copies.
6.3 No Recourse of Sellers against Directors and Employees of the
Companies. The Sellers agree that in connection with this Agreement
neither they nor any of their Affiliates (other than the Companies)
have any rights against, and the Sellers shall not make any claim
against, any employee, director, agent or officer of any of the
Companies in connection with this Agreement or in connection with the
transactions contemplated hereby. This art. 6.3 shall, however, not
apply to a set-off or counterclaim by the Sellers and it shall not
apply to rights and obligations among the Sellers related to the
Escrow Account or to recourse actions among the Sellers in connection
with breaches of representations and warranties hereunder provided
that such recourse action involves an employee or director only in
his/her role as a Seller and not to in his/her role as director or
employee of any of the Companies, in particular
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not in his/her role as an employee providing information and
documents to the Purchaser in the course of the due diligence
investigation conducted by the Purchaser.
6.4 No Claim of Sellers against the Companies. The Sellers agree that
neither themselves nor any of their Affiliates (other than the
Companies) have any rights against, and the Sellers shall not make
any claim against, any of the Companies in connection with the
Sellers participation in Xemics SA and Xemics USA, Inc. and the
Sellers hereby release the Companies from any such liability.
6.5 Covenant not to Compete. For a period of two years following the
Closing, each of the Sellers 13, 19, 20 and 21 undertakes not to
engage, directly or indirectly (including through legal entities with
substantial control by such Seller), within the United States of
America, the European Union and Switzerland, in the business of the
type of the business the Companies are currently engaged in. Any and
all existing investments and future, merely, financial investments in
listed companies of up to no more than two per cent of the capital of
such company, are exempt.
For each violation of the above covenant any of the Sellers 13, 19,
20 or 21 violating this covenant shall pay to the Purchaser an amount
of CHF 500'000 as liquidated damages plus such additional damages as
may be incurred by the Companies or the Purchaser. The payment of
this sum shall not operate as a waiver of the above obligation.
6.6 Non-Solicitation of Employees. Each of the Sellers undertakes, (i)
for a period of two years beyond the Closing, not to solicit or
entice away any employee of the Companies and (ii) for a period of
two years beyond the Closing not to employ, di-
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rectly or indirectly through an Affiliate, any of the key employees
listed on Schedule 6.6.
For each violation of the above covenant any Seller violating this
covenant shall pay, to the Purchaser, liquidated damages plus such
additional damages as may be incurred by the Companies or the
Purchaser, as follows: an amount of CHF 100'000 for each violation
against (i) above that is not a violation of (ii) above, and an
amount of CHF 1 million for each violation against (ii) above. The
payment of any such sum shall not operate as a waiver of the above
obligation.
6.7 Sellers' Representative. Each and all of the Sellers herewith
acknowledge that wherever in this Agreement the Sellers'
Representative is named and designated as such, he has full authority
to represent and bind each and all of the Sellers by his acts and
declarations and has full authority to receive and make on behalf of
each and all of the Sellers payments, notices and declarations. Each
Seller and the Sellers' Representative herewith agree that the
Purchaser (i) may rely on all of the Sellers' Representative's acts
and declarations as being binding upon the Sellers as if they were
such Seller's own acts and declarations, and (ii) may rely without
further examination on the Sellers' Representative having full
authority to act on behalf of the Sellers and, in particular, to
receive payments from the Purchaser and the Escrow Agent and to make
payments to the Purchaser, and to make all and any declarations and
to sign all and any documents required in connection with this
Agreement and the Escrow Agreement.
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6.8 Earnout Covenant of the Purchaser.
6.8.1 The Purchaser shall procure that during the Earnout Period the Xemics
Group does not terminate any of the distributors and representatives
as well as the employees listed on Schedule 6.8.1 except for cause
("aus wichtigem Grund" according to Swiss law).
6.8.2 In addition the Purchaser shall procure and shall cause Semtech Group
to procure:
(i) that Semtech Groups' regional sales leaders (Europe, U.S.,
Taiwan and Korea/Japan) as well as Paul D. Peterson will have
a MIT (most important task) assigned in the first full quarter
after the combination relative to the Xemics Group's product
line;
(ii) that Xemics Group will focus its personnel on the business
matters of the Xemics Group and its Operating Plan and will
operate within the scope of the Operating Plan;
(iii) that during the Earnout Period the Xemics Group is financed in
a fashion to allow it to perform its business in the ordinary
course. In particular, funds for capital expenditures as
outlined in the Operating Plan related to revenue to be
generated during the Earnout Period shall be provided by the
Purchaser (as promptly as is commercially reasonable);
provided, however, that such capital expenditures are subject
to a commercially reasonable justification made by Xemics
Group regarding strategic need, loading/customer forecast,
revenue generation.
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(iv) that the Purchaser shall use reasonably best efforts to
support the Xemics Groups' projects/business as defined in the
Operating Plan;
(v) that the standard products of Xemics Group will be
incorporated into Semtech Group's commission and design win
incentive plans and sales personnel which will be incentivized
to generate new design wins for Xemics Group standard
products;
(vi) that the Semtech Group will conduct training for its sales
organization on Xemics Group's standard products within 8
weeks of the close of the transaction;
(vii) that NRE projects included in the Operating Plan not be
rejected by Xemics Group and all performed but not invoiced
work in process for NRE projects shall be accounted as revenue
for the purpose of calculating the Relevant Gross Revenue,
with the full sales value;
(viii) that the Company provides the Sellers' Representative with
quarterly reporting on all sales relevant for the Relevant
Gross Revenue with a reasonable breakdown per products and
customers no later than 15 days after the end of each quarter;
(ix) that the Sellers' Representative and other representatives of
the Sellers as designated by the Sellers' Representative are
given the opportunity to hold a telephone conference of at
least two hours with the management of the Companies after the
end of each quarter for the purpose of discussing the
quarterly results.
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6.8.3 The Sellers acknowledge that any information received by them under
subclauses 6.8.2 (viii) and (ix) is and will be strictly confidential
for as long as and to the extent Semtech has not made such
information public.
6.8.4 The Purchaser undertakes to refrain from taking any influence on
business partners and existing and prospective customers of the
Companies that would result in such existing or prospective customers
of the Companies cancelling or postponing revenue for the Companies
out of the Earnout Period, thus reducing revenue of the Companies
during the Earnout Period.
6.9. Earnout Covenant of the Sellers. Each of the Sellers undertakes to
refrain from taking any influence on business partners and existing
and prospective customers of the Companies that would result in such
existing or prospective customers of the Companies accelerating
revenue for the Companies into the Earn Out Period, thus reducing
revenue for the Companies in the months and quarters following the
Earn Out Period.
6.10 Funding of the Purchase Price. The Purchaser has available sufficient
funds to pay the Purchase Price. Such funds are entirely provided out
of equity of the Purchaser or of another company of the Semtech Group
as at Closing, or, if and to the extent that such funds have been
raised by way of debt financing, the companies of the Semtech Group
have sufficient cash resources (either readily distributable reserves
of the Purchaser or of another company of the Semtech Group, or
expected to be available through cash flow generated by operations
other than operations of companies of the Xemics Group) to service
amortization and interest payments on such debt financing.
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6.11 Payments related to Employee Stock Options. The Sellers undertake to
relay all payments which become due from them to employees in
relation to Company stock options held by employees prior to Closing
through the Company (the Company thus acting as a mere payment
processing agent on behalf of the Sellers), each respective payment
to the Company to be made no later than 10 days after receipt of the
respective Purchase Price portions by the Sellers' Representative, so
that social security charges and tax at source (if any) can be
calculated and deducted correctly and in line with the stamp duty
ruling (see Article 1, definition of "Specific Estimated Stamp Duty
Cost 2005") by way of application of the Company's payroll system.
Purchaser undertakes to procure that the Company makes these
calculations and deductions and the related payments to employees and
Tax authorities.
6.12 Liability for Violation of Covenants. Breach of any of the Sellers'
covenants under this art. 6 by of any of the Sellers make such Seller
liable for indemnification to the Purchaser without any limitation in
amount and time for damages, losses and costs caused to the Purchaser
or any of the Companies as a result of such breach. Breach of any of
the Purchaser's covenants under this art. 6 by the Purchaser makes
the Purchaser liable for indemnification to the relevant Seller(s)
without any limitation in amount and time for damages, losses and
costs caused to the relevant Seller(s) as a result of such breach.
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ARTICLE 7
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Election of new Board of Directors
----------------------------------
Immediately upon the Closing, the Purchaser shall conduct a
shareholders meeting of the Company electing a new board of directors
of the Company and granting full discharge to the previous board
members, subject however to all obligations and liabilities of a Seller
in connection with this Agreement for those directors who are a Seller
hereunder.
ARTICLE 8
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Taxes
-----
8.1 Taxes to be Paid by the Parties. Any Swiss or foreign Taxes or other
charges which become due in connection with the transfer of the
Shares by the Sellers to the Purchaser under this Agreement shall be
at the charge of the Party who is liable for such Taxes pursuant to
applicable law.
ARTICLE 9
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Miscellaneous
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9.1 Costs. Each Party bears the fees of its counsel and advisors.
9.2 Notice. Any notice, request, instruction or other document deemed by
either Party to be necessary or desirable to be given to the other
Party, shall be in writing and shall be telefaxed or sent by
overnight courier addressed as follows:
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If to the Purchaser:
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Semtech International AG
Attn. Administration Manager
Bionstrasse 4
CH-9015 St. Gallen
Fax: +41-71-313-4839
With a copy to:
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Semtech Corporation
Attn. Legal Department
200 Flynn Road
Camarillo, CA 93012-8790, USA
Fax: +1-805-480-2157
If to the Sellers or the Sellers' Representative:
-------------------------------------------------
Tat Investments II C.V.
attn. Mr. Maarten Jacobus Robberts
Pareraweg 45, Curacao
Netherlands Antilles
Fax: +599 9 4343 567
With a copy to:
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TAT Capital Partners Ltd.
attn. Thomas Egolf
Vorderi Bode 2
Postfach
CH-5452 Oberrohrdorf
Fax: +41 56 485 89 80
Each Party may at any time change its address by giving notice to the
other Party in the manner described above.
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9.3 No Waiver. The failure of any of the Parties to enforce a provision
of this Agreement or any rights with respect thereto shall in no way
be considered as a waiver of such provisions or rights or in any way
to affect the validity of this Agreement. The waiver of any claim for
breach of this Agreement by a Party hereto shall not operate as a
waiver of any claim pertaining to another, prior or subsequent
breach.
9.4 Entire Agreement. This instrument embodies the entire agreement
between the Parties hereto with respect to the transaction
contemplated herein and there have been and are no agreements or
warranties between the Parties other than those set forth or provided
for herein. This Agreement may be amended only in writing through a
document signed by all the Parties hereto.
9.5 Binding on Successors. All of the terms, provisions and conditions of
this Agreement shall be binding upon and inure to the benefit of the
Parties hereto and their respective heirs, successors and assigns.
9.6 Announcements. The Sellers' Representative and the Purchaser shall
consult before issuing press releases or otherwise making any public
statements or any statements to the Company's employees with respect
to this Agreement and shall not issue any such press release or
statement without the prior approval of the other, it being
understood that the companies of the Semtech Group, and Semtech
Corporation in particular, shall be free to comply with legal
disclosure requirements without the prior approval by the Sellers'
Representative.
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ARTICLE 10
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Governing Law and Arbitration
-----------------------------
10.1 Governing Law. This Agreement shall be subject to and governed by
Swiss law.
10.2 Arbitration. All disputes arising out of or in connection with this
Agreement shall be solely and finally settled under the Rules of
Arbitration of the International Chamber of Commerce, Paris (ICC), by
a panel of three arbitrators appointed in accordance with such Rules.
The place of arbitration shall be Zurich and the proceedings shall be
conducted and any and all awards shall be rendered in English. All
documents in connection with arbitration procedures shall be deemed
duly served if they are sent to the address of each Seller
(respectively, where liability extends only to the Main Shareholders,
to each Main Shareholder) at its address as set forth first above, or
at such new address which has been properly notified by such Seller
to the Purchaser in compliance with art. 9.2.
IN WITNESS WHEREOF, the Parties thereto have executed this agreement as of the
date and year first above written.
The Sellers: The Purchaser:
Place and Date Curacao, Netherland Antilles June 8, 2005 Place and Date Zurich, Switzerland June 17, 2005
------------------------------------------ -----------------------------------
TAT Investments II C.V. Semtech International AG
/s/ J. Maarten /s/ Adrian Sieber
- -------------- -----------------
By: Tat Investments Management N.V., By: Adrian Sieber, Administration Manager
represented by Maarten Jacobus Robberts
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Place and Date Paris, France June 13, 2005
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FCPR Banexi Ventures 3
/s/ Philippe Mere
- --------------------
By: Philippe Mere
Place and Date Zurich, Switzerland June 14, 2005
-----------------------------------
Innoventure Capital AG
/s/ Daniel R. Wenger
- -----------------------
By: Daniel R. Wenger
Place and Date Lausanne, Switzerland June 10, 2005
-------------------------------------
Banque Cantonale Vaudoise
/s/ Laurent Michel /s/ Marc Frank
- ------------------- ---------------
By: Laurent Michel By: Marc Frank
Place and Date Geneva, Switzerland June 13, 2005
----------------------------------
Rolex SA
/s/ Xavier Reuse /s/ Jacques Baur
- ---------------- ----------------
By: Xavier Reuse By: Jacques Baur
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
Phonak AG
/s/ J. Maarten
- --------------------
By: Phonak AG by J. Maarten under power of attorney
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Place and Date Paris, France June 13, 2005
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FCPR Banexi Ventures 2
/s/ Philippe Mere
- --------------------
By: Philippe Mere
-------------
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
Vontobel European Ventures
/s/ J. Maarten
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By: Vontobel European Ventures by J. Maarten under power of attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
Manufacture des Montres Rolex SA
/s/ J. Maarten
- --------------
By: Manufacture des Montres Rolex SA by J. Maarten under power of attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
/s/ J. Maarten
- --------------
Marie-Cecile Bizet nee Cointreau by J. Maarten under power of attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
Richemont International SA
/s/ J. Maarten
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By: Richemont International SA by J. Maarten under power of attorney
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Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
Caisse de Pension de l'Etat de Neuchatel
/s/ J. Maarten
- --------------
By: Caisse de Pension de l'Etat de Neuchatel by J. Maarten under power of
attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
/s/ J. Maarten
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Alain Dantec by J. Maarten under power of attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
/s/ J. Maarten
- --------------
Michel Desbard by J. Maarten under power of attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
/s/ J. Maarten
- --------------
Roland Heer by J. Maarten under power of attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
The Yasuda Enterprise Development I, Limited Partnership
/s/ J. Maarten
- --------------
By: The Yasuda Enterprise Development I, Limited Partnership by J. Maarten under
power of attorney
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Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
/s/ J. Maarten
- --------------
Evan Rohr by J. Maarten under power of attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
/s/ J. Maarten
- --------------
Thomas Hinderling by J. Maarten under power of attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
/s/ J. Maarten
- --------------
Jean-Paul Bardyn by J. Maarten under power of attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
/s/ J. Maarten
- --------------
Remy Pache by J. Maarten under power of attorney
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
/s/ J. Maarten
- --------------
Serge Girardin by J. Maarten under power of attorney
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The Sellers' Representative in respect of his duties under this Agreement:
TAT Investments II C.V.
Place and Date Curacao, Netherland Antilles June 8, 2005
------------------------------------------
/s/ J. Maarten
- --------------
By: Tat Investments Management N.V.,
represented by Maarten Jacobus Robberts
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List of Schedules
Schedule C Shares and Shareholders of Xemics SA
Schedule 2.3.1 First Purchase Price Adjustment
Schedule 2.3.2 Second Purchase Price Adjustment
Schedule 3.1.2 Filings and submissions
Schedule 3.1.6 Filings and Agreements re certain patents and technology licenses
Schedule 3.3.1 Governmental, administrative and regulatory approvals
Schedule 4.1 Articles of incorporation of the Companies
Schedule 4.2 Capital structure of the Companies
Schedule 4.3 Ownership and corporate structure of Xemics USA
Schedule 4.4 (a) Audited Group Financial Statements as of Dec. 31, 2004
Schedule 4.4 (b) Unaudited financial statements of the Companies as of April 30, 2005
Schedule 4.4 (c) Group Accounting and Consolidation Principles
Schedule 4.7 Change of control permits
Schedule 4.8 Pending and threatening claims and litigation
Schedule 4.10.1 Agreements in respect of which Companies are in default
Schedule 4.10.2 Change of control agreements/ under risk of termination
Schedule 4.10.3 List of agreements
Schedule 4.11.1 (i) List of intellectual property and know-how
Schedule 4.11.1 (ii) List of IP/know-how license agreements
Schedule 4.12.1 List of certain employment agreements
Schedule 4.12.2 Overtime work accrual
Schedule 4.14 Insurance policies
Schedule 4.18 Real property leases and agreements
Schedule 4.19 Machinery, vehicles, equipment and fixtures
Schedule 4.20 Agreements between the Sellers and the Companies
Schedule 5.6 Escrow Agreement
Schedule 5.7 Liability of Main Shareholders
Schedule 6.6 Employees not to be solicited or hired by the Sellers
Schedule 6.8.1 Certain employees, distributors and representatives not to be terminated by
the Companies
The schedules to this agreement have been omitted in accordance with Item
601(b)(2) of Regulation S-K. The registrant agrees to furnish a copy of any
omitted schedule to the Commission upon request.
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