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As Of Filer Filing As/For/On Docs:Pgs Issuer Agent
4/06/06 Measurement Specialties Inc 8-K{1,2,9} 4/03/06 5:338 Vintage Filings LLC/FA
Document/Exhibit Description Pages Size 1: 8-K Current Report HTML 22K 2: EX-10.1 Material Contract HTML 352K 3: EX-10.2 Material Contract HTML 524K 4: EX-10.3 Material Contract HTML 744K 5: EX-99.1 Miscellaneous Exhibit HTML 13K
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| EX 10.2 |
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1.
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DEFINITIONS
AND INTERPRETATION
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3
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2.
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SALE
OF SHARES
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13
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|
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3.
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COMPLETION
AND CONDITIONS
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14
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4.
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WARRANTIES
AND INDEMNITIES
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20
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5.
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TERMINATION
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23
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6.
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REMEDIES
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23
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7.
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WORKING
CAPITAL STATEMENTS.
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34
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8.
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MISCELLANEOUS
PROVISIONS
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36
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FIRST
SCHEDULE THE COMPANY AND THE VENDORS
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42
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||
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SECOND
SCHEDULE SUBSIDIARIES
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44
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THIRD
SCHEDULE DIRECTORS
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45
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FOURTH
SCHEDULE WARRANTIES
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46
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(2)
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Measurement
Specialties, Inc., a corporation organised under the laws of the
State of
New Jersey, with its principal place of business in Hampton,
Virginia (the
“Purchaser”).
|
|
A.
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BetaTHERM
Group Ltd. (the “Company”) is a company whose particulars are set out in
the First
Schedule.
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B.
|
The
Vendors are the legal and beneficial owners of the Company’s entire issued
and outstanding share capital (the “Shares”). At the date hereof the
Vendors are the legal and beneficial owners of the numbers and classes
of
shares in the capital of the Company set out against each Vendors’ name in
Column 3 of the Table in the First
Schedule.
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|
C.
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The
Vendors have agreed to sell and the Purchaser has agreed to purchase
the
Shares on the terms and conditions in this Agreement.
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(c)
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the
performance by Purchaser and Vendors of their respective covenants
and
obligations under this Agreement;
and
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(iii)
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the
Release, use, generation, transport, treatment, storage, disposal,
removal
or recovery or management of Hazardous Substances, including building
materials; or
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(c)
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governmental
authority of any nature (including any governmental agency, branch,
department, official, or entity and any court or other tribunal);
or
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(d)
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body
exercising, or entitled to exercise, any administra-tive, executive,
judicial, legislative, police, regulatory, or Taxation Authority
or power
of any nature;
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(b)
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a
prudent individual could be expected to discover or otherwise become
aware
of such fact or other matter in the course of conducting a reasonably
comprehensive investigation of each Management Vendor and each director
of
each Acquired Company concerning the existence of such fact or other
matter;
|
|
(a)
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such
action is consistent with the past practices of such Person and is
taken
in the ordinary course of the normal day-to-day operations of such
Person;
and
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(b)
|
any
Person that is directly or indirectly controlled by such individual
or one
or more members of such individual’s
Family;
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(c)
|
any
Person in which such individual or members of such individual’s Family
hold (individually or in the aggregate) a Material Interest;
and
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|
(d)
|
any
Person with respect to which such individual or one or more members
of
such individual’s Family serves as a director, officer, partner, executor,
or trustee (or in a similar
capacity);
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|
(a)
|
any
Person that directly or indirectly controls, is directly or indirectly
controlled by, or is directly or indirectly under com-mon control
with
such specified Person;
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|
(c)
|
each
Person that serves as a director, officer, partner, executor, or
trustee
of such specified Person (or in a similar
capacity);
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(e)
|
any
Person with respect to which such specified Person serves as a general
partner or a trustee (or in a similar capacity);
and
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|
1.2
|
The
Schedules referred to in this Agreement form an integral part of
this
Agreement, are incorporated herein by reference and reference to
this
Agreement includes reference to
them.
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|
1.3
|
Headings
are inserted for convenience only and do not affect the construction
of
this Agreement.
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|
1.4
|
All
references in this Agreement to costs, charges or expenses include
any
value added tax or similar tax charged or chargeable in respect of
this
Agreement.
|
| 1.5.1 |
words
importing the singular include the plural and vice versa, words importing
the masculine include the feminine, and words importing persons include
corporations;
|
| 1.5.2 |
where
something is defined in the singular, the plural of the defined term
will
be taken to mean two or more of those things which fall within the
definition; and where something is defined in the plural or collectively,
the singular of the defined term will be taken to mean any one of
those
things which fall within the
definition;
|
| 1.5.3 |
reference
to writing or similar expressions includes transmission by telecopier
or
electronic means;
|
| 1.5.4 |
references
to Acts, statutory instruments and other legislation are to legislation
operative in Ireland and to such legislation amended, extended or
re-enacted (whether before or after the date of this Agreement),
except to
the extent that such amendment, extension or re-enactment creates
or
increases the liability of any Vendor or Acquired Company, and any
subordinate legislation made under that legislation, and includes
equivalent laws in any other jurisdiction;
and
|
| 1.5.5 |
reference
to any document includes that document as amended or supplemented,
whether
before or after the date of this
Agreement.
|
| 1.5.6 |
The
expression “agreed form” means in relation to any document, such document
in the terms agreed between the parties thereto and hereto and for
the
purposes of identification signed by or on behalf of each of the
parties
hereto.
|
|
2.1
|
Each
Vendor shall sell as legal and beneficial owner and the Purchaser
shall
purchase, free from all liens, charges and encumbrances, the number
of
each class of Shares listed opposite that Vendors name in Column
3 of the
table in the First
Schedule.
Each holder of Vendor Loan Notes shall novate such Loan Notes pursuant
to
the Deed of Novation.
|
|
2.2
|
The
Shares will be sold and the Vendor Loan Notes novated at an aggregate
price of US$36,741,065 (the
“Purchase Price”), subject to adjustment as provided below in this Clause
2.2. The Purchase Price shall be payable by Purchaser as follows:
|
| 2.2.1 |
$33,741,065
shall be paid to the Vendors. The foregoing payment shall be made
on the
Completion Date by wire transfer of immediately available funds to
the
account designated by the Vendors (the “Completion
Date Purchase Price Payment”);
|
| 2.2.2 |
$1,000,000,
in the aggregate, shall be paid to the Management Vendors in the
form of
the Consideration Shares. The Consideration Shares shall be issued
promptly following the Completion Date (but in no event shall the
Consideration Shares be issued more than fourteen (14) days after
the
Completion Date), and will be restricted shares as a result of their
issuance in accordance with Regulation S or Regulation D of the Securities
Act;
|
| 2.2.3 |
On
the Deferred Payment Date, the Purchaser shall pay one million, six
hundred forty eight thousand, five hundred thirty two Euro( € 1,648,532
(the “Deferred Purchase Price”); less
(i) any Reconciled Amount (ii) the amount of any Purchaser Pre-Estimate
in
respect of any Claim which has not yet been Reconciled or in respect
of
which an Estimated Claim Amount has not yet been determined or agreed
pursuant to Clause 6.25 and (iii) the amount of any Estimated Claim
Amount
in respect of any Claim which has not been Reconciled on the Deferred
Payment Date;
|
| 2.2.4 |
On
the Deferred Payment Date, the Purchaser shall pay the amounts specified
in subclauses (ii) and (iii) of Clause 2.2.3 into the Escrow Account
to be
held in accordance with the provisions of the Escrow
Agreement;
|
| 2.2.5 |
All
Purchase Price payments required under this Clause 2.2 shall be made
by
wire transfer of immediately available funds on the applicable payment
date to the Vendor’s Solicitors or the Escrow Account, as the case may be,
and the receipt of which by the Vendor’s Solicitors or the bank in which
the Escrow Account resides, as the case may be, shall be in complete
discharge of the Purchaser’s obligation with respect thereto. Reduction of
the Deferred Purchase Price payable as provided in this Clause and
in
Clause 6.1 and payment of amounts held under the Escrow Agreement
in
accordance with the terms thereof, shall be Purchasers sole recourse
for
Claims, and no other set-off of the Deferred Purchase Price shall
be made
by Purchaser.
|
| 3.1.1 |
Completion
shall take place on 3rd
April, 2006 (the “Completion Date”), at the offices of the Vendors’
Solicitors. For
financial, accounting and tax purposes, the Closing shall be deemed
to
have occurred as of 12:01 a.m. on April 1, 2006
(“Effective Time”);
|
| 3.1.2 |
The
Vendors and the Purchaser shall use their Best Efforts to ensure
that the
conditions in Clause 3.3 are fulfilled on the Completion Date. All
deliverables specified in Clause 3.3 and all conditions specified
in
Clause 3.4 shall be deemed waived when the Purchaser confirms in
writing
that Completion has taken place.
|
|
3.3.2.1
|
is
the holder or the beneficial owner of, or has the right to acquire
or to
obtain beneficial ownership of, any shares of, or any of the voting,
equity, or ownership interest in, any of the Acquired Companies;
or
|
|
3.3.3.3
|
Execution
and delivery of the Employment Agreements by each of the parties
required
to execute a Employment Agreement.
|
| (1) |
transfers
of the Shares duly executed by the registered holders in favour of
the
Purchaser or as he may direct together with the related share certificates
or, in the case of any lost share certificate, an indemnity in appropriate
terms; and
|
| (2) |
any
waivers or consents necessary to enable the Purchaser or his nominees
to
be registered as holders of the
Shares;
|
| 3.4.2 |
cause
any persons nominated by the Purchaser to be validly appointed as
additional directors of the Acquired Companies, and then cause the
Directors to retire from office;
|
| 3.4.3 |
cause
the Company to change its registered office to such office as may
be
designated by the Purchaser at or prior to
Completion.
|
| (1) |
insofar
as they are not in the custody of the Company and the Subsidiaries
and
unless held as security by a bank, the title deeds of the
Properties;
|
| (2) |
all
the Company’s and the Subsidiary’s statutory and other books, certificates
of incorporation and common seals;
and
|
| (3) |
insofar
as they are not in the custody of the Company and the Subsidiaries,
all
the Company’s and the Subsidiary’s financial and accounting books and
records (including all bank mandates, credit cards and cheque
books).
|
| 3.4.5 |
Exercise
all voting rights and other powers of control which they have in
relation
to the Company to make sure that the required shareholders and directors
resolutions are passed.
|
| 3.4.7.5 |
An
Employment Agreement duly executed by each key employee of the Company
required to execute an Employment Agreement as detailed in the
First
Schedule.
|
| 3.4.7.6 |
Evidence
that all registered charges created by the Company have been discharged
or
letters to the Purchaser from all relevant bankers or holders of
security
confirming that the fixed and floating charges created in their favour
by
the Company have not crystallised and will not as a result of Completion
crystallise.
|
| (1) |
deliver
cash in the amount of the Completion Date Purchase Price Payment
to
Vendors’ Solicitors by wire transfer or in such other manner as may be
agreed in writing between the Vendors’ Solicitors and the Purchaser’s
Solicitors, for further distribution to the Vendors in amounts agreed
to
among the Vendors;
|
| (2) |
deliver
the Consideration Shares to the Management Vendors. Such Consideration
Shares will be distributed promptly following Completion to each
of the
Management Vendors pursuant to Clause 2.2.2. The Consideration Shares
shall be issued at the Market
Value;
|
| 3.5.2 |
All
of the Consideration Shares issued to the Management Vendors pursuant
to
this Agreement cannot be sold until after the first anniversary of
the
Completion Date and the certificate in respect of the Consideration
Shares
will bear a restrictive legend in substantially the following
form:
|
| 3.5.3 |
Each
Management Vendor (a) understands that the shares of Purchaser’s common
stock constituting a portion of the Purchase Price being delivered
to such
Management Vendor have not been, and will not be, registered under
the
Securities Act or under any state securities laws, and are being
offered
and sold in reliance upon Regulation S under the Securities Act,
Regulation D under the Securities Act or another applicable exemption
from
the registration requirements of the Securities Act, (b) agrees to
resell
or transfer such shares only in accordance with the provisions of
Regulation S (Rules 901 through 905 under the Securities Act, ant
the
Preliminary Notes to such Rules), pursuant to registration under
the
Securities Act or pursuant to an available exemption from such
registration, (c) agrees not to engage in hedging transactions with
regard
to such shares unless in compliance with the Securities Act, and
(d) each
(other than Herbert Holmstedt) certifies that he, she or it is not
a US
person, as defined in Rule 902(k) under the Securities Act, and is
not
acquiring shares for the account or benefit of any US person, as
so
defined.
|
| 3.5.4 |
The
Purchaser shall not register any transfer of the Consideration Shares
by
any of the Management Vendors unless such transfer is made in accordance
with Regulation S, pursuant to registration under the Securities
Act, or
pursuant to an available exemption from
registration.
|
| 3.6.1 |
Approvals
by Governmental Bodies.
As promptly as practicable after the date of this Agreement, Purchaser
will, and will cause each of its Related Persons to, make all filings
required by Legal Requirements to be made by them to consummate the
Contemplated Transactions. Between the date of this Agreement and
the
Completion Date, Purchaser will cooperate with Vendors with respect
to all
filings that Vendors are required by Legal Requirements to make in
connection with the Contemplated Transactions, and (ii) cooperate
with
Vendors in obtaining all consents identified in Part 4.2 of the Disclosure
Letter; provided that this Agreement will not require Purchaser to
dispose
of or make any change in any portion of its business or to incur
any other
burden to obtain a Governmental
Authorisation.
|
| 3.7.1 |
As
an inducement for the Purchaser to enter into this Agreement and
as
additional consideration for the consideration paid to the Vendors,
each
Management Vendor agrees that for a period of three (3) years after
the
Closing:
|
| 3.7.2 |
Remedies.
If
a Management Vendor breaches the covenants set forth in Clause 3.8,
the
Purchaser will be entitled to the following
remedies:
|
| 4.1.1 |
any
Breach of any representation or warranty made by the Vendors in the
Fourth
Schedule attached hereto subject to any exceptions fairly and accurately
disclosed in the Disclosure Letter;
|
| 4.1.3 |
the
amount of any Vendor’s Transaction Costs which are paid or payable by an
Acquired Company.
|
| 4.2.1 |
the
statements contained in each of Clauses 4.2, 4.3, 4.4 and 4.5 respectively
are at the date hereof true and not misleading and further that they
will
have been complied with in all respects, as if they have been entered
into
afresh at Completion and if, after the signing of this Agreement
and
before Completion, any matter arises which results or may result
in such
statements becoming untrue or misleading, the Purchaser shall immediately
notify the Vendors fully in writing prior to
Completion;
|
| 4.2.2 |
the
Purchaser is duly incorporated, validly existing and in good standing
under the laws of New
Jersey. Each of the Purchaser and its subsidiaries is duly qualified
or
licensed as a foreign corporation to do business, and is in good
standing,
in each jurisdiction in which the failure to be so qualified or licensed
would have a material adverse effect on the business, assets, financial
commissions or results of operations of Purchaser
and its subsidiaries, taken as a
whole;
|
| 4.2.3 |
the
Purchaser has power and authority to enter into this Agreement and
the
Ancillary Agreements;
|
| 4.2.4 |
the
execution, delivery and performance of this Agreement and the Ancillary
Agreements, and the consummation of the transactions contemplated
hereby
and thereby, have been duly authorized by all necessary corporate
action
on the part of Purchaser and no further action is required on the
part of
Purchaser to authorize this Agreement, the Ancillary Agreements or
the
transactions contemplated hereby and
thereby;
|
| 4.2.5 |
the
execution, delivery and performance of the terms of this Agreement
and the
Ancillary Agreements by the Purchaser do not infringe upon any provisions
of:
|
| 4.2.6 |
in
acquiring the Shares, the Purchaser is acting as principal and not
as
agent or broker for any other
person;
|
| 4.3.1 |
Each
report, schedule, registration statement and definitive proxy statement
filed by Company with the Securities and Exchange Commission
(“SEC”)
after March 31st,
2005 including any amendments thereto (the “Purchaser
SEC Reports”),
which are all the forms, reports and documents required to be filed
by
Company with the SEC after March 31st,
2005, (X) were prepared in accordance with, and complied in all
material respects with, the requirements of the Securities Act or
the
Exchange Act, as the case may be, and the rules and regulations of
the SEC
thereunder applicable to such Purchaser SEC Reports and were filed
on a
timely basis and (Y) did not at the time they were filed (and if
amended or superseded by a filing prior to the date of this Agreement
then
on the date of such filing) contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. None of
Purchaser’s subsidiaries is required to file any reports or other
documents with the SEC.
|
| 4.3.2 |
Each
set of consolidated financial statements (including, in each case,
any
related notes thereto) contained in the Purchaser SEC Reports, including
any Purchaser SEC Reports filed after the date hereof until Completion,
other than the consolidated financial statements of the Acquired
Companies
or the pro forma financial information derived therefrom, as to which
the
Purchaser makes no representations or warranties (X) complied as
to form
in all material respects with the published rules and regulations
of the
SEC with respect thereto, (Y) was prepared in accordance with United
States generally accepted accounting principles, applied on a consistent
basis throughout the periods involved (except as may be indicated
in the
notes thereto or, in the case of unaudited statements, for the absence
footnotes as permitted by Form 10-Q of the Exchange Act) and (Z)
fairly presents the consolidated financial position of Purchaser
and its
subsidiaries at the respective dates thereof and the consolidated
results
of operations and cash flows for the periods indicated, except that
the
unaudited interim financial statements were or are subject to normal
year-end adjustments.
|
| 4.3.3 |
the
Purchaser warrants that the Consideration Shares issued as consideration
in accordance with the provisions of this Agreement, shall have been
duly
and validly authorised, issued and delivered by the Purchaser free
from
all encumbrances (save for any lock up, vesting, escrow or other
arrangements contemplated by this Agreement) and shall have been
issued in
Compliance with US securities laws and will be fully paid for and
not
subject to any call, pre-emptive or similar rights and shall rank
pari
passu in all respects with the existing common stock of the
Purchaser;
|
| 4.4.1 |
Since
1 January, 2006, there has not been, occurred or arisen any event
or
condition which has had a material adverse effect on the business,
assets
(including intangible assets), financial conditions or results of
operations of Purchaser and its subsidiaries, taken as a
whole.
|
| 6.1.1 |
The
Deferred Purchase Price shall be reduced in accordance with Clause
2 of
this Agreement. The
Purchaser’s sole remedy in respect of any Claim (other than a Claim
pursuant to Clauses 4.1.2, or 4.1.3) shall be the reduction of the
Deferred Purchase Price or payment pursuant to the Escrow Agreement.
If
the Purchaser wishes to bring a Claim it shall give written notice
to
Vendors in accordance with Clause 6.2.1.1 specifying in reasonable
detail
the basis for the Claim (“Claim Notice”). Notwithstanding
the foregoing, if Vendors Representative (on behalf of Vendors) notifies
Purchaser (and, if applicable, the Escrow Agent) within 30 days of
receipt
of a Claim Notice that Vendors disagree with the Claim, the parties
agree
to cooperate to try and reach a resolution of the dispute, and if
they
cannot do so the Purchaser may commence litigation to resolve the
dispute.
If Vendors Representative (on behalf of Vendors) does not so notify
Purchaser (and, if applicable, the Escrow Agent) within said 30-day
period, such Claim and the amount set out in the relevant Claim Notice
shall be deemed to be “agreed” for the purposes of Clause 6.22 and the
Deferred Purchase Price shall, in accordance with Clause 2.2.3, be
reduced
by the amount set out in the Claim Notice (or, following the Deferred
Payment Date, the amount set out in the Claim Notice shall be paid
to
Purchaser pursuant to the Escrow Agreement) and any such reduction
or
payment shall be made in full and final settlement of the
Claim
|
| 6.2.1.1 |
Time:
Notice
of it is given in writing within eighteen (18) months following Completion
setting out details of the event or circumstances giving rise to
the
Claim, the legal grounds on which the Claim is based and the total
amount
of the liability.
|
| 6.2.2.1 |
Other
than for any Claim pursuant to Clauses 4.1.2 , or 4.1.3, the
maximum aggregate liability of the Vendors for all Claims shall be
the
Deferred Purchase Price. Any such liability (other
than for a Claim pursuant to Clauses 4.1.2, or 4.1.3) may only be
satisfied by reduction of the Deferred Purchase Price or out of the
amount
held pursuant to the Escrow Agreement. Accordingly (other than for
a Claim
pursuant to Clauses 4.1.2, or 4.1.3) no recourse shall be had in
the
settlement thereof to any other assets of the Vendors.
|
| 6.3.1 |
Nothing
in this agreement will be deemed to relieve the Purchaser from any
common
law or other duty to mitigate any loss or damage incurred by
him;
|
| 6.3.2 |
Subject
to clause 8.11.2, no Person other than the Purchaser or the Vendors
will
be entitled to make a Claim or other claim under this Agreement,
neither
will the amount of the Claim be calculated by reference to loss or
damage
suffered by any Person other than the Purchaser or the Vendors;
|
| 6.3.3 |
If
any circumstances giving rise to a Claim arise, the Purchaser shall
give
written notice to the Vendors Representative and, via the Vendors
Representative, keep the Vendors fully informed of all material
developments;
|
| 6.3.4 |
The
Vendors will not be liable in respect of any Claim to the extent
that it
arises or is increased or extended as a result of any event occurring
with
retrospective effect, a change in the law or in any regulation,
requirement or code of conduct of any relevant agency or regulatory
body
or any parliamentary statement, or statement by the Revenue Commissioners
concerning any change in revenue practice.
|
| 6.4.1 |
If
at any time the Purchaser or any Acquired Company is entitled to
recover
from insurers or any other third parties whether by payment, discount,
credit, relief or otherwise howsoever (in this clause called a “Third
Party Claim”) in relation to any matter giving rise to a Claim the
Purchaser shall:
|
| 6.4.2 |
Notify
the Vendors as soon as reasonably practicable and provide such information
and assistance as the Vendors may require relating to the entitlement
and
the action taken or proposed to be taken by the Purchaser or the
Acquired
Company;
|
| 6.4.3 |
Take
(at the expense of the Vendors) such reasonable steps or proceedings
as
the Vendors may require, and act in accordance with any requirements
of
the Vendors, subject to the Purchaser being indemnified by the Vendors
against all reasonable costs and expenses incurred in that connection;
and
|
| 6.4.4 |
Keep
the Vendors informed of the progress of any such steps, proceedings
or
actions and the amount of the relevant Claim against the Vendors
will be
reduced to the extent of any amount recovered or of which advantage
is
otherwise obtained or, if payment has already been made by the Vendors,
the Purchaser shall make a refund as
appropriate.
|
| 6.4.5 |
Steps
taken by Vendors to cause the Purchaser or an Acquired Company to
pursue,
or co-operate in pursuit of, a Third Party Claim will not be taken
as an
admission of the relating Claim or that the Vendors are liable in
any
particular amount or at all.
|
| 6.5.1 |
The
Purchaser shall allow, and shall cause the Acquired Companies to
allow,
the Vendors and their professional advisers to investigate any matter
or
circumstance alleged to give rise to a
Claim.
|
| 6.5.2 |
For
that purpose, the Purchaser shall give and shall cause the Acquired
Companies to give, at Vendors sole expense, all reasonable assistance
requested on reasonable notice by the Vendors or their accountants,
solicitors or other professional advisers, including reasonable access
to
and copies of any relevant documents or information in the possession
of
the Purchaser or the Acquired Companies.
|
| 6.5.3 |
The
provision of co-operation under this clause, or the request for
co-operation, will not be taken as prejudicing the rights of any
party
with regard to the validity or extent of any
Claim.
|
| 6.16.1 |
if
and to the extent that allowance, provision or reserve for or in
respect
of the liability or other matter giving rise to such claim has been
made
in the Financial Statements or Interim Balance Sheet or such liability
or
matter was specifically referred to in the notes to the Financial
Statements or Interim Balance
Sheet;
|
| 6.16.2 |
if
and to the extent that such claim is attributable to or would not
have
arisen or would have been reduced or eliminated but for any voluntary
act,
omission, transaction or arrangement carried out after Completion
by the
Purchaser, any Acquired Company and/or any subsidiary of the Purchaser
and/or any person connected with the Purchaser and/or an Acquired
Company
otherwise than in the ordinary and usual course of business of the
Company
as presently carried on;
|
| 6.16.3 |
if
and to the extent that such claim relates to or is increased by a
claim or
liability for Taxation which would not have arisen but for any winding
up
or cessation after Completion of any trade or business carried on
by any
Acquired Company, except for the winding up or cessation of any trade
or
business carried on by CEM
Barbados;
|
| 6.16.4 |
if
and to the extent such claim would not have arisen or would have
been
reduced or eliminated but for a change of accounting policy or practice
of
any Acquired Company after
Completion;
|
| 6.16.5 |
if
and to the extent of any relief or reduction in Taxation arising
by virtue
of the loss or damage in respect of which the Claim was
made;
|
| 6.16.6 |
if
and to the extent that such Claim has arisen in respect of any act
or
omission stipulated to be carried out or omitted pursuant to or which
is
contemplated by the terms of this Agreement;
and
|
| 6.16.7 |
if
and to the extent that the liability or other matter giving rise to
such Claim has been taken into account in the consolidated current
liabilities of the Acquired Companies comprised in the Completion
Working
Capital (as agreed or determined in accordance with Clause 7.2).
|
| 6.19.1 |
Upon
consummation of the transactions contemplated herein, and without
further
act of any Vendor, Hibernia Capital Partners, Ltd. shall be appointed
attorney-in-fact (the “Vendors
Representative”)
for each Vendor for and on behalf of each such Vendor, to give and
receive
notices and communications, to authorize delivery to the Purchaser
of
amounts under the Escrow Agreement, to object to such deliveries,
to agree
to, negotiate, enter into settlements and compromises of, and demand
arbitration and comply with orders of courts and awards of arbitrators
with respect to any claims by Purchaser, to take all actions necessary
or
appropriate in the judgment of Vendors Representative for the
accomplishment of the foregoing. Notices or communications to or
from the
Vendors Representative shall constitute notice to or from each of
the
Vendors.
|
| 6.19.2 |
Each
decision, act, consent or instruction of the Vendors Representative
shall
constitute a decision of all the Vendors shall be final, binding
and
conclusive upon each Vendor and their successors or transferees,
and the
Escrow Agent and the Purchaser may rely upon any such decision, act,
consent or instruction of the Vendors Representative as being the
decision, act, consent or instruction of each every Vendor. The Escrow
Agent and the Purchaser are hereby relieved from any liability to
any
person for any acts done by them in accordance with such decision,
act,
consent or instruction of the Vendors
Representative.
|
| 6.19.3 |
The
agency described in this Clause 6.12 may be changed by the Vendors
from
time to time upon not less than thirty (30) days prior written notice
to
the Purchaser. The Vendors Representative may resign upon not less
than
thirty (30) days prior written notice to the Purchaser. Any vacancy
in the
position of Vendors Representative may be filled by Hibernia Capital
Partners, Ltd.
|
| 6.19.4 |
The
Vendors Representative shall not be entitled to compensation for
his or
her services rendered hereunder. However, the Vendors Representative
shall
be reimbursed by the Vendors for reasonable counsel fees and other
reasonable out-of-pocket expenses incurred in connection with the
provisions of this Agreement and the Escrow
Agreement.
|
| 6.19.5 |
The
Vendors Representative may act upon any instrument or other writing
believed by such Vendors Representative in good faith to be genuine
and to
be signed or presented by the proper person and shall not be liable
for
any act done or omitted hereunder as Vendors Representative, except
for
his or her own wilful default or gross negligence. The Vendors shall,
jointly and severally, indemnify the Vendors Representative and hold
the
Vendors Representative harmless against any loss, liability or expense
incurred without wilful default or gross negligence on the part of
the
Vendors Representative and arising out of or in connection with the
acceptance or administration of the Vendors Representative’s duties
hereunder, including the reasonable fees and expenses of any legal
counsel
retained by the Vendors
Representative.
|
|
6.21
|
The
Vendors and the Purchaser shall use reasonable endeavours to progress
a
Claim with a view to having the Claim settled or resolved at an early
date
including if possible, once proceedings have been taken, the making
of an
application to have the matter transferred to the Commercial List
of the
High Court pursuant to Statutory Instrument No. 2 of 2004 (The Rule
of
Superior Courts (Commercial Proceedings),
2004).
|
| 6.22.1 |
a
Claim shall be deemed to have been settled (and a settlement to have
been
reached in respect of that Claim) when the Vendors and the Purchaser
shall
agree in writing (or shall be deemed to agree pursuant to Clause
6.1) the
amount by which the Deferred Purchase Price is reduced or an amount
is
paid out of the Escrow Account in settlement of the Claim and the
amount
so agreed (or deemed to be agreed pursuant to Clause 6.1) shall be
deemed
to be the amount of that Claim;
|
| 6.22.2 |
a
Claim shall be deemed to have been resolved (and a resolution to
have been
reached in respect of that Claim) where a court of competent jurisdiction
or tribunal of law has delivered judgment in respect of the Claim
(whether
on appeal or otherwise); and
|
| 6.23.1 |
The
Purchaser shall give notice to the Vendors’ Representative (the
"Pre-Estimate Notification") of the amount, in its opinion, of the
pre-estimate of a Claim (the "Purchaser's Pre-Estimate") within 10
days of
notifying that Claim to the Vendors in accordance with this Agreement
and/or, as the case may be, the Tax Deed.
|
| 6.23.2 |
The
Vendors’ Representative shall notify the Purchaser within 10 days of
receiving a Pre-Estimate Notification if it disagrees with the Purchaser's
PreEstimate of the Claim in question and, in so doing, shall set
out the
amount, in its opinion, of the Pre-Estimate of such Claim (the "Vendors'
Pre-Estimate").
|
| 6.23.3 |
If
the Vendors’ Representative fails to notify the Purchaser within 10 days
of receiving a Pre-Estimate Notification that it disagrees with the
Purchaser's Pre-Estimate the Vendors shall be deemed to have accepted
the
Purchaser's Pre-Estimate of the claim for the purposes of this
Agreement.
|
| 6.23.4 |
If
the Vendors’ Representative notifies the Purchaser that it disagrees with
the Purchaser's Pre-Estimate in accordance with Clause 6.23.2 above,
the
Purchaser and the Vendors’ Representative shall seek to agree the relevant
Pre-Estimate and, failing agreement within 10 days of the date of
the
notice given by the Vendors’ Representative under Clause 6.23.2, shall
refer the matter to an Expert.
|
|
6.24
|
The
giving of notice or the failure to give notice pursuant to Clause
6.23
shall not in any way be construed as regards the Vendors or the Purchaser
as an acceptance or denial of any liability in respect of the relevant
Claim and shall be entirely without prejudice to any subsequent litigation
arising out of such Claim.
|
| 6.25.1 |
the
Purchaser's Pre-Estimate, if the Vendors’ Representative fails to notify
the Purchaser within 10 days of receiving a Pre-Estimate Notification
that
it disagrees with the Purchaser's Pre-Estimate;
or
|
| 6.25.2 |
the
pre-estimate as agreed between the Purchaser and the Vendors’
Representative pursuant to Clause 6.23.4;
or
|
| 6.25.3 |
the
amount which the Purchaser would be likely to be entitled to recover
from
the Vendors in respect of the Relevant Claim if taken at the date
of the
Purchaser giving Notice pursuant to Clause 6.23.2 as determined by
the
Expert in accordance with this Clause 6.
|
|
6.26
|
Where
a matter is referred to an expert (an "Expert") pursuant to Clause
6.23.4
the Expert shall be a Senior Counsel and shall be appointed by agreement
between the Vendors’ Representative and the Purchaser or, failing
agreement within 5 days of the initiation of reference, by the Chairman
for the time being of the Bar Council of Ireland (the "Chairman")
on the
application of either the Vendors’ Representative or the
Purchaser.
|
|
6.27
|
If
an Expert has been appointed but is unable or unwilling to complete
the
reference to him, another Expert shall be appointed by agreement
between
the Vendors’ Representative and the Purchaser or, failing agreement within
5 days of their being notified that the Expert is unable or unwilling
to
complete the reference by the Chairman on the application of either
the
Vendors’ Representative or the
Purchaser.
|
| 6.29.1 |
request
the Expert to determine the Pre-Estimate of a Claim within 15 days
of him
receiving the reference or such longer period as may be agreed between
the
Vendor’s Representative, the Purchaser and the
Expert;
|
| 6.29.2 |
without
prejudice to their respective obligations set out herein above, the
Vendors’ Representative and the Purchaser shall each use all reasonable
endeavours to co-operate with the Expert in determining the Pre-Estimate
of a Relevant Claim and for that purpose will provide to the Expert
with
all such information and documentation as the Expert may require
to
determine the Pre-Estimate of a Relevant
Claim.
|
|
6.30
|
The
role of the Expert shall be to determine based only on the merits
of, and
having reference to, the respective cases put forward in the submissions
made by the Vendors’ Representative and the Purchaser pursuant to Clause
6.29.2 above, whether or not the Purchaser has an arguable case against
the Vendors based on reasonable grounds and if the Expert determines
that
the Purchaser has an arguable case against the Vendors based on reasonable
grounds, the amount which the Purchaser would be likely to be entitled
to
recover from the Vendors in respect of such Claim if
taken at the date of the Purchaser giving Notice pursuant to Clause
6.23.2.
|
|
6.31
|
The
decision of the Expert (which shall be a reasoned decision) shall,
in the
absence of fraud or manifest error, be final and binding on the Vendors
and the Purchaser as regards the amount of the Estimated Claim
Amount.
|
|
6.32
|
The
Expert shall have the right to seek such professional assistance
and
advice as he may require in fulfilling his duties. In determining
the
costs of any reference to the Expert pursuant to this Article 6,
the
Expert shall apply the general principle that
:
|
| 6.32.1 |
if
the Expert determines that the Estimated Claim Amount is equal to
or
greater than the amount notified by the Purchaser to the Vendors’
Representative pursuant to Clause 6.23.1 above, the costs shall be
borne
by Vendors;
|
| 6.32.2 |
if
the Expert determines that the Estimated Claim Amount is equal to
or less
than the amount notified by the Vendors Representative to the Purchaser
in
accordance with Clause 6.23.2 above, the costs shall be borne by
the
Purchaser; and
|
| 6.32.3 |
if
the Expert determines that the Estimated Claim Amount is an amount
between
the amount notified by the Purchaser and the amount notified by the
Vendors’ Representative, the Purchaser and the Vendors shall respectively
bear the Purchaser's Proportion and the Vendor's Proportion of the
costs.
|
|
6.33
|
For
the avoidance of doubt, any agreement or determination of the Estimated
Claim Amount is solely for the purpose of facilitating the Purchaser’s and
the Vendors’ right to payment or set-off a portion of the Deferred
Purchase Price and is not for the purpose of determining any Claim.
If the
amount of an Unsettled Claim is subsequently settled or resolved
to be
more than the Estimated Claim Amount, the Purchaser shall, subject
to the
limitation of the Purchaser’s remedy in respect of any claims under Clause
6 of this Agreement, be entitled to seek such other remedies the
Purchaser
may have. If any Claim shall have been referred to an Expert pursuant
to
Clause 6.23.4, and the Estimated Claim Amount in respect thereof
shall not
have been determined by the Deferred Payment Date, the Expert shall
continue to act in accordance with the provisions of this Clause
6 until
the Estimated Claim Amount is
determined.
|
|
7.1
|
Estimated
Working Capital Statement.
Attached as Exhibit C is the “Estimated Working Capital Statement”. The
Estimated Working Capital Statement has been prepared by Vendors,
based
upon their good faith estimates and assumptions and in accordance
with
GAAP consistently applied and using the same practices, principles
and
methodologies used in preparing the monthly management accounts,
and shows
thereon calculation of the amount (“Estimated Working Capital”) as at
close of business on 31 March 2006 obtained by subtracting: (i) the
amount
of the consolidated current liabilities of the Company, from (ii)
the
amount of the consolidated current assets of the Company; it being
acknowledged that no corporate profits tax, no cash, no debt and
no amount
outstanding from the Company to any Affiliate of the Company, or
from any
Affiliate of the Company to the Company, shall in any manner enter
into
the foregoing calculation.
|
| 8.8.1 |
Any
notice or other communication to be given or served under this Agreement
shall be in writing, addressed to the relevant party and expressed
to be a
notice or communication under this Agreement and, without prejudice
to the
validity of another method of service, may be delivered or sent by
pre-paid, registered, airmail, post or via telecopier, addressed
as
follows:
|
| (2) |
in
the case of posting, five days after posting (and proof that the
envelope
containing the notice or communication was properly addressed, will
be
sufficient evidence that the notice or other communication has been
duly
served or given); or
|
| (3) |
in
the case of telecopier, upon transmission, subject to the correct
code or
telecopier number being received on the transmission report and receipt
by
the addressee of the complete text in legible form
|
| (4) |
in
the case of delivery via overnight mail, the day following the day
such
notice or communication was sent
|
| 8.8.3 |
A
party giving or serving a notice or other communication hereunder
by
telecopier shall also give or serve a copy by post, but without prejudice
to the validity and effectiveness of the service by
telecopier.
|
| 8.9.1 |
the
Purchaser irrevocably appoints Mr. Lorcan Tiernan of Dillon Eustace
Solicitors, Dublin, Ireland as agent and, each of the Vendors hereby
irrevocably appoints Edward Miller of the Vendors Solicitors as agent
for
service of process relating to any proceedings before the courts
of
Ireland in connection with this Agreement, and each party agrees
to
maintain as its agent the process agent in Ireland so notified hereby
during the term of this Agreement and thereafter during such period
as any
action may be taken under it; and
|
| 8.9.2 |
each
party agrees that failure by a process agent to notify it of the
process
will not invalidate the proceedings
concerned.
|
| 8.10.1 |
The
disclosures in the Disclosure Letter, and those in any supplement
thereto,
must relate only to the representations and warranties in the Clause
of
the Agreement to which they expressly relate and not to any other
representation or warranty in this
Agreement.
|
| 8.10.2 |
In
the event of any inconsistency between the statements in the body
of this
Agreement or the Schedules and those fairly and accurately disclosed
in
the Disclosure Letter with respect to a specifically identified
representation or warranty, the statements in the body of this Agreement
or Schedules will control.
|
| 8.11.1 |
Subject
to Clause 8.11.2, neither party may assign any of its rights under
this
Agreement without the prior consent of the other parties, which will
not
be unreasonably withheld, except that Purchaser may assign any of
its
rights under this Agreement to (i) any wholly owned subsidiary of
Purchaser, or (ii) any lender and/or security-holder of the Purchaser.
No
such assignment shall relieve any party of its responsibilities under
this
Agreement and, without prejudice to the generality of the foregoing,
Purchaser shall not assign its obligations under Clause 2.2 without
the
written consent of the Vendors
Representative.
|
| 8.11.2 |
The
Parties hereby expressly agree that the Purchaser shall be entitled
to
assign any of its rights under this Agreement to any party purchasing
the
entire issued share capital of the Company from the Purchaser and
to any
party that acquires all the assets of the Company as at Completion
from
the Purchaser.
|
| 8.11.3 |
Subject
to subclauses 8.11.1 and 8.11.2 respectively, this Agreement will
apply
to, be binding in all respects upon, and inure to the benefit of
the
successors and permitted assigns of the parties. Nothing expressed
or
referred to in this Agreement will be construed to give any Person
other
than the parties to this Agreement any legal or equitable right,
remedy,
or claim under or with respect to this Agreement or any provision
of this
Agreement. This Agreement and all of its provisions and conditions
are for
the sole and exclusive benefit of the parties to this Agreement and
their
successors and assigns.
|
| 8.11.4 |
For
the avoidance of doubt where the Purchaser has assigned the benefit
in
whole or in part of this Agreement, then the liability of the Covenantors
shall be limited to that amount that would have been due had no such
assignment taken place.
|
| 8.13.1 |
It
is irrevocably agreed that the Irish courts are to have exclusive
jurisdiction to settle any disputes which may arise out of or in
connection with this Agreement or its performance and accordingly
that any
suit, action or proceedings so arising may be brought in such
courts.
|
| 8.13.2 |
The
Purchaser irrevocably waives (and irrevocably agrees not to raise)
any
objection which it may have now or subsequently to the laying of
the venue
of any proceedings in any such court as is referred to in this Clause
8.13
and any claim that any such proceedings have been brought in an
inconvenient forum and further irrevocably agrees that a judgement
in any
proceedings brought in any such court as is referred to in this Clause
8.13 will be conclusive and binding upon the
Purchaser and
may be enforced in the courts of any other
jurisdiction.
|
|
(a)
|
This
Agreement may be executed in writing simultaneously and by one or
more
counterparts, each of which shall be deemed an original, but all
of which
together shall constitute one and the same agreement, which shall
be
sufficiently evidenced by any one of such original
counterparts.
|
|
(b)
|
For
the purpose of this clause “writing” shall mean written signature or
signature produced or substituted for such written signature and
shall be
deemed to include a signature sent by facsimile or by other electronic
means.
|
|
1
|
2
|
3
|
|
Name
of Vendor
|
Vendor
Address
|
No.
and Class of Shares in the Company
|
|
Management
Vendors:
|
||
|
Terence
Monaghan
|
Cregg,
Oughterard, Co Galway
|
1,747,308
- A ordinary shares, 50,000 C ordinary shares and 2 D ordinary
shares
|
|
Thomas
O’Brien
|
Clonmore
House, Lowville, Ahascragh, Ballinasloe, Co Galway
|
349,462
- A ordinary shares
|
|
Bill
Sex
|
305,779
- A ordinary shares
|
|
|
Kieran
Garvey
|
Lakeview,
Claregalway, Co Galway
|
43,683
- A ordinary shares
|
|
Shaun
Morgan
|
Cregcarragh,
Cregmore, Claregalway, Co Galway
|
104,865
- A ordinary shares
|
|
Blanaid
Ryan
|
Coolree
Lodge, Coolree, Prosperous, Co Kildare
|
40,000
- A ordinary shares
|
|
Bill
Howard
|
40,000
- A ordinary shares
|
|
|
Joe
Gleeson
|
Apt
4, Maunsells House (No. 9), Maunsells Road, Galway
|
17,500
- A ordinary shares
|
|
Hugh
McGovern
|
Ballinaboy,
Leitrim P.O., Carrick on Shannon, Co Leitrim
|
17,500
- A ordinary shares
|
|
Noel
Burke
|
Collmeen,
Mayo Abbey, Claremorris, Co Mayo
|
17,500
- A ordinary shares
|
|
Clair
Cloherty
|
65
Riasc Na Ri, Old Rahoon Road, Galway
|
9,905
- A ordinary shares
|
|
Claus
Gesslinger
|
17,500
- A ordinary shares
|
|
|
Anthony
Dennehy
|
Dennehy’s
Centra, West End, Millstreet, Co Cork
|
262,096
- A ordinary shares
|
|
Tara
Smolenski
|
43,683
- A ordinary shares
|
|
|
Doug
Helie
|
43,683
- A ordinary shares
|
|
|
Kevin
Moran
|
Kevre
House, Lakeview, Claregalway, Co Galway
|
83,324
- A ordinary shares
|
|
Susan
Killeen
|
59
River Oaks, Claregalway, Co Galway
|
43,683
- A ordinary shares
|
|
Jude
Neylon
|
Main
Street, Corofin, Co Clare
|
131,048
- A ordinary shares
|
|
Patrick
Lyons
|
Castleturley,
Aghamore, Ballyhaunis, Co Mayo
|
87,365
- A ordinary shares
|
|
Stephen
Meagher
|
5
Aughnacurra, Lower Dangan, Galway
|
394,512
- A ordinary shares
|
|
Stephen
Keenan
|
71
Clybaun Heights, Knocknacarra, Co Galway
|
87,365
- A ordinary shares
|
|
Herb
Holmstedt
|
262,096
- A ordinary shares
|
|
|
Aidan
Nulty
|
114
Scelig Ard, Headford Road, Galway
|
87,366
- A ordinary shares
|
|
Siobhan
Boyle
|
43
Clochog, Oranmore, Co Galway
|
43,683
- A ordinary shares
|
|
Bill
Macuga
|
43,683
- A ordinary shares
|
|
|
Gerry
Savage
|
Berowra,
Corrandulla, Co Galway
|
43,683
- A ordinary shares
|
|
Non-Management
Vendors
|
||
|
State
Street International Custodial Services
|
Guild
House
Guild
Street
IFSC
Dublin
1.
|
4,368,271
- B ordinary shares
|
|
David
Chapman
|
c/o
David Gavagan, Hibernia Capital Partners, Beech House, Beech Hill
Office
Campus, Clonskeagh, Dublin 6
|
87,365
- B ordinary shares
|
|
Gary
Duffy
|
2
Eastgate, Little Island, Co Cork
|
49,405
- B ordinary shares
|
|
Name
|
Jurisdiction
of Incorporation
|
Status
|
|
BetaTHERM
Holding Limited
|
Ireland
|
Private
limited company
|
|
BetaTHERM
Trading Limited
|
Ireland
|
Private
limited company
|
|
CEM
Barbados
|
Barbados
|
Barbados
Company
|
|
LAJOY
|
Ireland
|
Private
unlimited company
|
|
BetaTHERM
R&D Limited
|
Ireland
|
Private
limited company
|
|
BetaTHERM
Systems Limited
|
Ireland
|
Private
limited company
|
|
Beta-Therm
Corporation
|
Massachusetts
(US)
|
Massachusetts
Corporation
|
|
BetaTHERM
Ireland
|
Ireland
|
Private
limited company
|
|
BetaTHERM
Automotive Sensors Limited
|
Ireland
|
Private
limited company
|
|
Name
of Director
|
Company/ies
|
|
Terence
Monaghan
|
BetaTHERM
Group Limited
|
|
Stephen
Meagher
|
BetaTHERM
Group Limited
|
|
David
Gavagan
|
BetaTHERM
Group Limited
|
|
Gary
Duffy
|
BetaTHERM
Group Limited
|
|
Anthony
Dennehy
|
BetaTHERM
Group Limited
|
|
Barrie
Daish
|
BetaTHERM
Group Limited
|
|
Terence
Monaghan
|
BetaTHERM
Holdings Limited
|
|
Stephen
Meagher
|
BetaTHERM
Holdings Limited
|
|
David
Gavagan
|
BetaTHERM
Holdings Limited
|
|
Gary
Duffy
|
BetaTHERM
Holdings Limited
|
|
Barrie
Daish
|
BetaTHERM
Holdings Limited
|
|
Brian
O’Keefe
|
BetaTHERM
Holdings Limited
|
|
Terence
Monaghan
|
BetaTHERM
Trading Limited
|
|
Stephen
Meagher
|
BetaTHERM
Trading Limited
|
|
David
Gavagan
|
BetaTHERM
Trading Limited
|
|
Gary
Duffy
|
BetaTHERM
Trading Limited
|
|
Barrie
Daish
|
BetaTHERM
Trading Limited
|
|
Terence
Monaghan
|
LAJOY
Limited
|
|
Stephen
Meagher
|
LAJOY
Limited
|
|
David
Gavagan
|
LAJOY
Limited
|
|
Barrie
Daish
|
LAJOY
Limited
|
|
Terence
Monaghan
|
BetaTHERM
Research & Development Limited
|
|
Stephen
Meagher
|
BetaTHERM
Research & Development Limited
|
|
David
Gavagan
|
BetaTHERM
Research & Development Limited
|
|
Barrie
Daish
|
BetaTHERM
Research & Development Limited
|
|
Terence
Monaghan
|
BetaTHERM
Systems Limited
|
|
Stephen
Meagher
|
BetaTHERM
Systems Limited
|
|
David
Gavagan
|
BetaTHERM
Systems Limited
|
|
Barrie
Daish
|
BetaTHERM
Systems Limited
|
|
Terence
Monaghan
|
Caribbean
Electronics Manufacturing (1992) Limited
|
|
Stephen
Meagher
|
Caribbean
Electronics Manufacturing (1992) Limited
|
|
David
Gavagan
|
Caribbean
Electronics Manufacturing (1992) Limited
|
|
Terence
Monaghan
|
BetaTHERM
Ireland Limited
|
|
Stephen
Meagher
|
BetaTHERM
Ireland Limited
|
|
David
Gavagan
|
BetaTHERM
Ireland Limited
|
|
Barrie
Daish
|
BetaTHERM
Ireland Limited
|
|
Terence
Monaghan
|
BetaTHERM
Corporation
|
|
Stephen
Meagher
|
BetaTHERM
Corporation
|
|
David
Gavagan
|
BetaTHERM
Corporation
|
|
Terence
Monaghan
|
BetaTHERM
Automotive Sensors Limited
|
|
Stephen
Meagher
|
BetaTHERM
Automotive Sensors Limited
|
|
David
Gavagan
|
BetaTHERM
Automotive Sensors Limited
|
|
Barrie
Daish
|
BetaTHERM
Automotive Sensors Limited
|
|
(a)
|
Part
4.1 of the Disclosure Letter contains a complete and accurate list
for
each Acquired Company of its name, its jurisdiction of incorporation,
other jurisdictions in which it is authorised to do business, and
its
capitalisation (including the identity of each stockholder and the
number
of shares held by each). Each Acquired Company is a corporation duly
organised and validly existing under the laws of its jurisdiction
of
incorporation, with full corporate power and authority to conduct
its
business as it is now being conducted, to own or use the properties
and
assets that it purports to own or use, and to perform all its obligations
under Applicable Contracts. Each Acquired Company is duly qualified
to do
business as a foreign corporation under the laws of each state or
other
jurisdiction in which either the ownership or use of the properties
owned
or used by it, or the nature of the activities conducted by it, requires
such qualification.
|
| (c) |
The
information and contents of the documentation listed or referenced
in the
Disclosure Letter (other than contracts, as to which the Vendors
make only
the Representations and Warranties contained in Clause 4.19 of this
Fourth
Schedule) and any Schedules to the Agreement are true and accurate
in all
respects and where such information or the contents of such documentation
comprise or include statements of opinion by the Vendors such statements
of opinion are honestly held.
|
| (a) |
This
Agreement constitutes the legal, valid, and binding obligation of
Vendors,
enforceable against Vendors in accordance with its terms, subject
to the
laws of general application relating to bankruptcy, insolvency and
the
relief of debtors and to the rules governing specific performance,
injunctive relief or other equitable remedies. Upon the execution
and
delivery by Vendors of the Vendor Releases (collectively, the "Ancillary
Agreements"), the Ancillary Agreements will constitute the legal,
valid,
and binding obligations of Vendors, enforceable against Vendors in
accordance with their respective terms, subject to the laws of general
application relating to bankruptcy, insolvency and the relief of
debtors
and to the rules governing specific performance, injunctive relief
or
other equitable remedies. Vendors have the requisite power, authority,
and
capacity to execute and deliver this Agreement and the Ancillary
Agreements and to perform their obligations under this Agreement
and the
Ancillary Agreements.
|
| (b) |
Except
as set forth in Part 4.2 of the Disclosure Letter, neither the execution
and delivery of this Agreement nor the consummation or performance
of any
of the Contemplated Transactions will, directly or indirectly (with
or
without notice or lapse of time):
|
|
(i)
|
contravene,
conflict with, or result in a violation of (A) any provision of the
Organisational Documents of the Acquired Companies, or (B) any resolution
adopted by the board of directors or the stockholders of any Acquired
Company;
|
|
(ii)
|
contravene,
conflict with, or result in a violation of, or give any Governmental
Body
or other Person the right to challenge any of the Contemplated
Transactions or to exercise any remedy or obtain any relief under,
any
Legal Requirement or any Order to which any Acquired Company or Vendor,
or
any of the assets owned or used by any Acquired Company, may be
subject;
|
|
(iii)
|
contravene,
conflict with, or result in a violation of any of the terms or
requirements of, or give any Governmental Body the right to revoke,
withdraw, suspend, cancel, terminate, or modify, any Governmental
Authorisation that is held by any Acquired Company or that otherwise
relates to the business of, or any of the assets owned or used by,
any
Acquired Company;
|
|
(iv)
|
cause
any of the assets owned by any Acquired Company to be reassessed
or
revalued by any Taxation Authority or other Governmental
Body;
|
|
(v)
|
contravene,
conflict with, or result in a violation or breach of any provision
of, or
give any Person the right to declare a default or exercise any remedy
under, or to accelerate the maturity or performance of, or to cancel,
terminate, or modify, any Applicable Contract;
or
|
|
(vi)
|
result
in the imposition or creation of any Encumbrance upon or with respect
to
any of the assets owned or used by any Acquired Company;
|
|
(vii)
|
except
as set forth in Part 4.2 of the Disclosure Letter, no Vendor or Acquired
Company is or will be required to give any notice to or obtain any
Consent
from any Person in connection with the execution and delivery of
this
Agreement or the consummation or performance of any of the Contemplated
Transactions;
|
| (a) |
Company.
The authorised share capital of the Company is €12,720,097.40, composed of
€12, 720, 097.40 divided into 5,000,000 A ordinary shares of €1.26974
each, 5,000,000 B ordinary shares of €1.26974 each, 100,000 C ordinary
shares of €0.126974 each, and 10,000 D ordinary shares of €1 each and the
issued share capital of the Company is €11,273,151,15 composed of
€11,273,151.15 divided into 4,368,272 A ordinary shares of €1.26974 each,
4,505,041 B ordinary shares of €1.26974 each, 50,000 C ordinary shares of
€0.126974 each and 2 D ordinary shares of €1. All of such issued and
outstanding shares have been validly issued and are fully paid and
were
not issued in violation of any pre-emptive rights. There are no rights,
agreements or commitments obligating the Company to issue any additional
shares or any other securities convertible into, exchangeable for
or
evidencing the right to subscribe for any shares of the Company.
|
|
(i)
|
The
Vendors are the sole legal and beneficial owners of the Shares set
opposite their names in the First Schedule.
|
|
(ii)
|
The
Shares comprise the whole of the allotted and issued share capital
of the
Company. There are no shares issued or allotted in any Acquired Company
which are not legally and beneficially owned by the Vendors, the
Company
or another Acquired Company.
|
| (iv) |
There
is no Encumbrance, nor is there any agreement, arrangement or obligation
to create or give any Encumbrance, on, over or affecting any of the
Shares
or any issued or unissued shares of any Acquired Company and no claim
has
been made by any person to be entitled to any such
Encumbrance.
|
| (a) |
there
is no agreement, arrangement or obligation in force which calls for
the
present or future allotment, issue or transfer of, or the grant to
any
person of the right (whether conditional or otherwise) to call for
the
allotment, issue or transfer of, any share or loan capital of any
Acquired
Company (including, without limitation, any option or right of pre-emption
or conversion in any Acquired
Company);
|
| (b) |
no
share or loan capital has been created, allotted, issued, acquired,
repaid
or redeemed, or agreed to be created, allotted, issued, acquired,
repaid
or redeemed, by any Acquired Company since 30 June 2005 of the Acquired
Companies; and
|
| (c) |
all
rights attaching to the Shares are valid and enforceable by action
or
legal proceeding or otherwise.
|
| (d) |
Subsidiaries
and Other Equity Investments.
Except as set forth in the Part 4.3 of the Disclosure Letter, the
Company
does not own, directly or indirectly, any shares of any corporation
or any
equity investment in any partnership, association or other business
organisation. With respect to each Subsidiary that is an issuer of
any
shares owned of record by the Company or its Subsidiaries, Part 4.3
of the
Disclosure Letter sets forth a true and complete list of its name
and
jurisdiction of incorporation. Except as set forth in the Part 4.3
of the
Disclosure Letter, neither the Company nor any Subsidiary is a party
to or
bound by any contract or agreement to issue or sell or redeem, purchase
or
otherwise acquire any shares or any other security of any Subsidiary
or
any other security exercisable or exchangeable for or convertible
into any
shares or any other security of any Subsidiary, and there is no
outstanding option, warrant, contract, agreement or arrangement to
purchase any shares or any other security of any Subsidiary or any
other
security exercisable or convertible into any shares or any other
security
of any Subsidiary.
|
|
(i)
|
The
Company does not have any subsidiary or subsidiary undertaking other
than
the Subsidiaries and no Acquired Company has any interest in, and
has not
agreed to acquire any interest in, any shares of any other bodies
corporate other than the Subsidiaries.
|
|
(ii)
|
The
shares in the share capital of the Subsidiaries are legally and
beneficially owned as shown in the Second Schedule free from all
Encumbrances and are fully paid up or credited as fully paid
up.
|
|
(iii)
|
No
Acquired Company has outside Ireland any branch, agency or place
of
business, or any permanent establishment (as that expression is defined
in
the relevant double taxation relief orders current at the date of
this
Agreement).
|
|
(iv)
|
No
Acquired Company has, or has had, any associated undertaking within
the
meaning of the European Communities (Companies: Group Accounts)
Regulations, 1992.
|
|
(v)
|
No
Acquired Company has any liability (actual, contingent or otherwise)
in
respect of any company or other entity which was formerly a subsidiary
of
any Acquired Company.
|
|
(i)
|
Vendors
have delivered to Purchaser: (a) audited consolidated balance sheets
of
the acquired companies as at June 30 in each of the years 2004 and
2005,
and the related audited consolidated statements of income, changes
in
shareholders' equity, and cash flow for each of the fiscal years
then
ended, together with the report thereon of Ernst &Young (“Financial
Statements”). Such Financial Statements and notes have been prepared in
accordance with the applicable law, standards and practices on a
basis
consistent throughout the periods involved and in accordance with
GAAP.
The Financial Statements give a true and fair view of the state of
affairs
of the Acquired Companies as of their date and profits or losses
for the
periods concerned. The Vendors have also delivered to the Purchasers
an
unaudited consolidated balance sheet of the Acquired Companies as
at 24
February, 2006 (the “Interim Balance Sheet”) and the related unaudited
consolidated statements of income, changes in the stockholders equity
and
cash flow for the 8 months then ended, such financial statements
and notes
have been prepared on a basis consistent and adopted on the same
assumptions as those made in preparing previous management accounts
for
the Company and show a reasonably accurate view of the statement
of
affairs and profit and loss of the Acquired Companies as at the period
in
respect of which they have been prepared subject to normal year end
adjustments.
|
| (a) |
has,
to the Vendors’ Knowledge, had its affairs investigated pursuant to
section 7, 8 or 9 of the 1990 Act, nor has there been any investigation
of
the ownership of the shares of any of the Acquired Companies pursuant
to
section 14 or request pursuant to section 15 of the 1990 Act, nor
has
there been a direction made under section 16 of the 1990 Act nor
an
investigation pursuant to section 66 of the 1990
Act;
|
| (c) |
has
made any loans or quasi-loans (within the meaning of section 25 of
the
1990 Act), entered into any credit transactions as creditor or entered
into any guarantee or indemnity or provided any security in connection
with a loan, quasi-loan or credit transaction in breach of section
31 of
the 1990 Act;
|
| (d) |
is
or has been related to any other company for the purpose of section
140 of
the 1990 Act and is not and will not at any time be liable to be
subject
to an order made under that section by virtue of any act (whether
of
commission or omission) that occurred prior to
Completion;
|
| (f) |
has
been struck off and subsequently restored to the register pursuant
to
section 311A of the 1963 Act;
|
| (g) |
has
entered into any transaction or arrangement particulars whereof would,
pursuant to section 41 of the 1990 Act, require to be contained in
the
accounts; or
|
| (h) |
has
purchased or redeemed its own shares or those of its holding company
or
created treasury shares pursuant to part XI of the 1990
Act.
|
| 4.6 |
TITLE
TO PROPERTIES; ENCUMBRANCES. Part
4.6
of
the Disclosure Letter contains an accurate list of all real property,
leaseholds, or other tangible assets owned or held by any Acquired
Company
at 24 February, 2006. The Acquired Companies legally and beneficially
own
(with good and marketable title in the case of real property) all
the
properties and assets (whether real, personal, or mixed and whether
tangible or intangible) that they purport to legally and beneficially
own,
including all of the properties and assets reflected in the Balance
Sheet
and the Interim Balance Sheet (except for property and assets sold
since
the date of the Balance Sheet and the Interim Balance Sheet, as the
case
may be, in the Ordinary Course of Business), and all of the properties
and
assets purchased or otherwise acquired by the Acquired Companies
since the
date of the Balance Sheet (except for personal property acquired
and sold
since the date of the Balance Sheet in the Ordinary Course of Business).
All material properties and assets reflected in the Balance Sheet
and the
Interim Balance Sheet are free and clear of all Encumbrances, except
as
disclosed in Part 4.6 of the Disclosure Letter. The Acquired Companies
hold valid and binding lease or license agreements for all property
and
assets which are used in and material to the operation of the Acquired
Companies and which is not owned by the Acquired Companies. No Acquired
Company is a party to, or has any material liability under, any lease
or
hire, hire purchase, credit sale or conditional sale
agreement.
|
| 4.8 |
ACCOUNTS
RECEIVABLE. Part
4.8 of the Disclosure Letter contains a complete and accurate list
of
accounts receivable ("Accounts
Receivable")
of the Acquired Companies as of 24
February,
2006
and
sets forth the aging of such Accounts Receivable. All Accounts Receivable
that are reflected on the Balance Sheet, Interim Balance Sheet or
on the
accounting records of the Acquired Companies as of the Completion
Date
represent or will represent valid obligations arising from sales
actually
made or services actually performed in the Ordinary Course of Business.
Unless paid prior to the Completion Date, and except as disclosed
in Part
4.8 of the Disclosure Letter, the Accounts Receivable are or will
be as of
the Completion Date current and collectible net of the respective
reserves
after debtor financing shown on the Balance Sheet, Interim Balance
Sheet
or on the accounting records of the Acquired Companies as of the
Completion Date (which reserves to the knowledge of the Vendors are
adequate and calculated consistent with past
practice).
|
|
4.9
|
INVENTORY.
All
inventories of the Acquired Companies are useable or saleable in
the
Ordinary Course of Business with
in one year of the date hereof (based on historical sales and currently
forecast demand), except for obsolete items and items of below-standard
quality, all of which have been written off or written down to net
realizable value in the Financial Statements of the Company.
|
| 4.11 |
TAXES.
Each
of the Acquired Companies has accurately prepared and filed all Tax
Returns required to be filed prior to the date of this Agreement.
True and
complete copies of each of the most recent of any such Tax Returns,
and
such other returns and statements requested by Purchaser, have been
provided to Purchaser. All such Tax Returns were true and correct
in all
material respects. Any Tax required to be paid or withheld with respect
to
the periods covered by such Tax Returns have been paid or withheld.
The
liabilities for unpaid Taxes shown on the Balance Sheet and the Interim
Balance Sheet are and will be sufficient to pay all Taxes accrued
through
the date thereof and not reported on and paid with Tax Returns filed
by
the Acquired Companies prior to the Completion Date. No Tax liability
will
be incurred by the Acquired Companies as a result of the transactions
contemplated by this Agreement. None of the Acquired Companies has
been
delinquent in the payment of any Tax, or in the filing of any Tax
Return,
and the Acquired Companies have not requested any extension of time
in
which to file any Tax Return with respect to any period prior to
the
Completion Date. Except as described in Part 4.11 of the Disclosure
Letter, (i) none of the Acquired Companies has had any Tax deficiency
proposed or assessed against it; (ii) no audit of any Tax Return
of the
any of the Acquired Companies is in progress or threatened; (iii)
no
director, officer or employee of an Acquired Company responsible
for Tax
matters expects any Tax Authority to assess any additional Taxes
for any
pre-Completion period for which Tax Returns have been filed; and
(iv) no
waiver or agreement by an Acquired Company is in force for the extension
of time for the assessment or payment of any Tax. No Vendor nor any
other
officer or employee of an Acquired Company, has been contacted by
a Tax
Authority in connection with any personal liability for employment
or
sales Taxes that would otherwise be due and payable by an Acquired
Company. No claim has ever been made by any Tax Authority in a
jurisdiction where an Acquired Company does not file Tax Returns
that it
is or may be subject to Taxation by that jurisdiction. There are
no
security interests on any of the assets of the Acquired Companies
that
arose in connection with any failure (or alleged failure) to pay
any Tax.
The Acquired Companies are not and have never been party to or bound
by
any Tax sharing agreement.
|
| 4.12 |
NO
MATERIAL ADVERSE CHANGE. Since
the date of the Interim Balance Sheet, there has not been any material
adverse change in the business, operations, properties, prospects,
assets,
or condition of any Acquired Company, and no event has occurred or
circumstance exists that may result in such a material adverse
change.
|
| (a) |
Part
4.13 of the Disclosure Letter sets forth a true and complete list
of all
written and oral pension, profit sharing, retirement, deferred
compensation, stock purchase, stock option, incentive compensation,
bonus,
vacation, severance, sickness or disability, hospitalization, individual
and group health and accident insurance, individual and group life
insurance and other material employee benefit plans, programs, commitments
or funding arrangements maintained by the Acquired Companies, to
which any
Acquired Company is a party, or under which any Acquired Company
has any
obligations, present or future (other than obligations to pay current
wages, salaries or sales commissions terminable on notice of thirty
(30)
days or less) in respect of, or which otherwise cover or benefit,
any of
the current or former officers, employees or sales representatives
(whether or not employees) of any Acquired Company, or their beneficiaries
(hereinafter individually referred to as "Employee
Benefit Plan"
and collectively referred to as "Employee
Benefit Plans").
Vendors have delivered or made available to Purchaser true and complete
copies of all documents, as they may have been amended to the date
hereof,
embodying the terms of the Employee Benefit Plans.
|
|
(b)
|
Except
as set forth in Part 4.13 of the Disclosure Letter, each Employee
Benefit
Plan described therein is in full force and effect in accordance
with its
terms and is being maintained, administered and operated in all material
respects in accordance with its terms. There are no material actions,
suits or claims pending (other than routine claims for benefits),
or, to
the Vendors’ Knowledge, threatened, against any Employee Benefit Plan,
against any Acquired Company, or any administrator, fiduciary, accountant,
actuary, attorney or other third-party service provider (collectively,
the
"Service
Providers")
with respect to an Employee Benefit Plan. To the knowledge of the
Vendors
the Acquired Companies and Service Providers have performed all material
obligations required to be performed by them with respect to, and
they are
not in default under or in violation of, any Employee Benefit Plan,
in any
material respect, and the Acquired Companies and the Service Providers
are
in compliance in all material respects with all Legal Requirements
applicable to the Employee Benefit Plans.
|
|
(c)
|
Except
as set forth in Part 4.13 of the Disclosure Letter, no Acquired Company
is
a party to any agreement to provide nor does it have an obligation
to
provide any individual, or such individual’s spouse or dependent, with any
benefit following his or her retirement or termination of employment,
nor
his or her spouse, any dependent or any beneficiary subsequent to
his or
her death, with retirement, medical or life insurance or any benefit
under
any employee pension benefit plan and any employee welfare benefit
plan.
|
|
(d)
|
No
Employee Benefit Plan, Service Provider, or Acquired Company has
any
liability to any plan participant, beneficiary or other Person under
any
Legal Requirement attributable to the breach of any of its obligation
with
respect to any Employee Benefit Plan. No Acquired Company is delinquent
or
in arrears with respect to any contributions due under any Employee
Benefit Plan. The Acquired Companies have satisfied all contribution
obligations that have accrued prior to the Completion
Date.
|
|
(i)
|
to
the Vendors' Knowledge, each Acquired Company is, and at all times
since 1
January 2004 has been, in full compliance with each Legal Requirement
that
is or was applicable to it or to the conduct or operation of its
business
or the ownership or use of any of its
assets;
|
|
(ii)
|
to
the Vendors’ Knowledge, no event has occurred or circumstance exists that
(with or without notice or lapse of time) (A) may constitute or result
in
a violation by any Acquired Company of, or a failure on the part
of any
Acquired Company to comply with, any Legal Requirement, or (B) may
give
rise to any obligation on the part of any Acquired Company to undertake,
or to bear all or any portion of the cost of, any remedial action
of any
nature; and
|
|
(iii)
|
no
Acquired Company has received, at any time since 1 January 2004,
any
notice or other communication (whether oral or written) from any
Governmental Body or any other Person regard-ing (A) any actual,
alleged,
possible, or potential violation of, or failure to comply with, any
Legal
Requirement, or (B) any actual, alleged, possible, or potential obligation
on the part of any Acquired Company to undertake, or to bear all
or any
portion of the cost of, any remedial action of any
nature.
|
|
(b)
|
Part
4.14 of the Disclosure Letter contains a complete and accurate list
of
each Governmental Authorisation that is held by any Acquired Company
or
that otherwise relates to the business of, or to any of the assets
owned
or used by, any Acquired Company. Each Governmental Authorisation
listed
or required to be listed in Part 4.14 of the Disclosure Letter is
valid
and in full force and effect. Except as set forth in Part 4.14 of
the
Disclosure Letter:
|
|
(i)
|
each
Acquired Company is, and at all times since 1 January 2004 has been,
in
full compliance with all of the terms and requirements of each
Governmental Authorisation identified or required to be identified
in Part
4.14of the Disclosure Letter;
|
|
(ii)
|
no
event has occurred or circumstance exists that may (with or without
notice
or lapse of time) (A) constitute or result directly or indirectly
in a
violation of or a failure to comply with any term or requirement
of any
Governmental Authorisation listed or required to be listed in Part
4.14 of
the Disclosure Letter, or (B) result directly or indirectly in the
revocation, withdrawal, suspension, cancellation, or termination
of, or
any modification to, any Governmental Authorisation listed or required
to
be listed in Part 4.14 of the Disclosure
Letter;
|
|
(iii)
|
no
Acquired Company has received, at any time since 1 January 2004,
any
notice or other communication (whether oral or written) from any
Governmental Body or any other Person regarding (A) any actual, alleged,
possible, or potential violation of or failure to comply with any
term or
requirement of any Governmental Authorisation, or (B) any actual,
proposed, possible, or potential revocation, withdrawal, suspension,
cancellation, termi-nation of, or modification to any Governmental
Authorisation; and
|
|
(iv)
|
all
applications required to have been filed for the renewal of the
Governmental Authorisations listed or required to be listed in Part
4.14
of the Disclosure Letter have been duly filed on a timely basis with
the
appropriate Governmental Bodies, and all other filings required to
have
been made with respect to such Governmental Authorisations have been
duly
made on a timely basis with the appropriate Governmental
Bodies.
|
|
(c)
|
The
Governmental Authorisations listed in Part 4.14 of the Disclosure
Letter
collectively constitute all of the Governmental Authorisations necessary
to permit the Acquired Companies to lawfully conduct and operate
their
businesses in the manner they currently conduct and operate such
businesses and to permit the Acquired Companies to own and use their
assets in the manner in which they currently own and use such
assets.
|
|
No
Acquired Company has engaged in any commercial arrangement or any
behaviour whatsoever that infringed or would be likely to infringe
Articles 81 or 82 of the EC Treaty or Sections 4 or 5 of the Competition
Act, 2002 or any Irish competition rules in force prior to the entry
into
operation of Sections 4 or 5 of the Competition Act
2002.
|
|
(a)
|
No
Acquired Company is or has been a party to, or engaged in, any agreement,
arrangement, decision, concerted practice or activity which was prohibited
by section 4(1) of the Competition Act, 1991, or which is prohibited
by
section 4(1) of the Competition Act,
2002.
|
|
(b)
|
No
Acquired Company has made any notification to the Competition Authority
requesting a licence pursuant to section 4(2) of the Competition
Act, 1991
or a certificate pursuant to section 4(4) of the Competition Act,
1991.
|
| (c) |
No
Acquired Company has committed, contrary to section 5 of the Competition
Act, 1991, or section 5 of the Competition Act, 2002, any abuse,
either
alone or jointly with any other undertaking, of a dominant position
within
the State or a substantial part of the
State.
|
|
(d)
|
An
authorised officer appointed pursuant to section 20 of the Competition
Act, 1991 or pursuant to section 45 of the Competition Act, 2002
has not
entered and inspected any premises at or vehicles in or by means
of which
any Acquired Company carries on business nor required such Acquired
Company nor any person employed in connection with the Business to
produce
any books, documents or records and has not inspected, copied or
taken
extracts from any such books, documents and records nor required
such
Acquired Company nor any person to provide any information in regard
to
entries in such books, documents and records or in regard to such
Acquired
Company or its business or in regard to the persons employed in connection
therewith.
|
|
(e)
|
No
petition has been presented by a person pursuant to section 6(1)
of the
Competition Act, 1991 or pursuant to section 14 of the Competition
Act,
2002 for an injunction or declaration or damages including exemplary
damages in relation to any agreement decision, concerted practice
or
action in which any Acquired Company is or has been involved nor
has any
such injunction or declaration or damages been
granted.
|
|
(f)
|
No
petition has been presented by the Minister pursuant to section 6(4)
of
the Competition Act, 1991 for an injunction or declaration in relation
to
any agreement, decision, concerted practice or action in which any
Acquired Company is or has been involved nor has any such injunction
or
declaration been granted.
|
|
(g)
|
No
proceedings have been issued to any group company, director, manager
or
other officer or employee of any Acquired Company pursuant to section
8 of
the Competition Act, 2002 in relation to any agreement, decision
or action
in which any Acquired Company or any director, manager or other officer
or
employee of any Acquired Company is or has been involved and no group
company, director, manager or other officer or employee of any Acquired
Company has been convicted of an offence under section
8.
|
|
(h)
|
No
investigation has been carried out by the Competition Authority pursuant
to section 14 of the Competition Act, 1991 as to whether, in the
opinion
of the Authority, any Acquired Company is in a dominant position
and, it
is, whether the dominant position is being abused and the Minister
has not
made an order pursuant to section 14(3) of the Competition Act, 1991
either (a) prohibiting the continuance of a dominant position enjoyed
by
any Acquired Company except on conditions specified in the order
or (b)
requiring the adjustment of the dominant
position.
|
|
(i)
|
The
Competition Authority has not pursuant to its powers under section
7 of
the Schedule to the Competition Act, 1991 or pursuant to its powers
under
section 31 of the Competition Act, 2002, done any of the following
in
relation to any officer or employee of any Acquired
Company:
|
|
(iii)
|
required
any such person or persons summonsed to appear as a witness before
the
Authority to produce to the Authority any document in the power or
control
of any such person or persons.
|
|
(i)
|
Save
in respect of the present transaction no order has been made under
the
Mergers Act which directly or indirectly affects the business of
any
Acquired Company.
|
|
(ii)
|
In
relation to every merger or take-over in which any Acquired Company
was
involved prior to the date of this Agreement and to which the Mergers
Act
applied, the Minister has issued a statement in writing prior to
completion of the merger or take-over concerned stating that he had
decided not to make an order under section 9 of the Mergers Act in
relation to the proposed merger or
takeover.
|
|
(iii)
|
The
Minister has not referred any proposed merger or take-over in which
any
Acquired Company is involved and to which the Mergers Act applies
to the
Competition Authority for investigation pursuant to section 7(b)
of the
Mergers Act.
|
|
(iv)
|
No
Acquired Company has been the object of a report of the Competition
Authority under section 8(1) of the Mergers Act stating whether,
in the
opinion of the Authority, a proposed merger or takeover would be
likely to
prevent or restrict competition or restrain trade in any goods or
services
and would be likely to operate against the common
good.
|
|
(v)
|
Since
3rd July, 1978 none of the Acquired Companies has been a party to
any
transaction notifiable pursuant to section 5 of the Mergers
Act.
|
|
(vi)
|
Since
1st January, 2003, in relation to every merger or acquisition in
which a
Acquired Company was involved prior to the date of this agreement
and to
which the Competition Act, 2002 required a notification, or a notification
has been made, the Competition Authority has determined that the
merger or
acquisition could be put into effect and any such merger or acquisition
has been put into effect within one year of that
determination.
|
|
(vii)
|
Since
1st January, 2003, in relation to every merger or acquisition which
a
Acquired Company was involved, the Competition Authority has not
carried
out a full investigation under Section 22 of the Competition Act,
2002.
|
|
(viii)
|
Since
1st January, 2003, in relation to every merger or acquisition in
which a
Acquired Company was involved, the Competition Authority has not
determined that the merger or acquisition could be put into effect
only
subject to conditions specified by
it.
|
|
(ix)
|
Since
1st January, 2003, in relation to every merger or acquisition in
which a
Acquired Company was involved, the Acquired Company has not offered
proposals to the Competition Authority under Section 20(3) which
have
become binding commitments on the Acquired
Company.
|
|
No
Acquired Company is or has been involved prior to or at the date
of this
Agreement in any arrangement or transaction or agreement which is
or was a
concentration with a community dimension within the meaning of Council
Regulation (EEC) No. 4064/89 of 21st December 1989 on the control
of
concentrations between undertakings (the “Merger
Control Regulation”)
and no Acquired Company is or has been involved prior to or at the
date of
this Agreement in any arrangement or transaction or agreement which
at the
request of a Member State has been the subject of findings or decisions
of
the Commission of the European Communities pursuant to Article 22
of the
Merger Control Regulation.
|
|
No
Acquired Company has ever received, nor is a Acquired Company proposing
to
receive, any aid (as that term is understood for the purposes of
Articles
87 to 89 of the Treaty of Rome) from a Member State of the European
community or from State resources.
|
|
(a)
|
No
Acquired Company, to the Vendors’ Knowledge, and no person for whose acts
or defaults any Acquired Company may be vicariously liable is involved,
or
has at any time been involved, in any civil, criminal, arbitration
or
other proceedings and no civil, criminal, arbitration or other proceedings
are pending, or threatened, by or against any Acquired Company, to
the
Vendors’ Knowledge, or any person for whose acts or defaults any Acquired
Company may be vicariously liable.
|
|
(b)
|
No
fact or circumstance exists which is likely to give rise to any civil,
criminal, arbitration or other proceedings involving any Acquired
Company,
to the Vendors’ Knowledge, or any person for whose acts or defaults any
Acquired Company may be vicariously
liable.
|
|
(c)
|
There
is no outstanding judgment, order, decree, arbitral award or decision
of
any court, tribunal, arbitrator or governmental agency against any
Acquired Company, to the Vendors’ Knowledge, or any person for whose acts
or defaults any Acquired Company may be vicariously
liable.
|
| (a) |
change
in any Acquired Company's authorised or issued share capital; grant
of any
share option or right to purchase shares of any Acquired Company;
issuance
of any security con-vertible into such share capital; grant of any
registration rights of any of the Acquired Companies securities;
purchase,
redemption, retirement, or other acquisition by any Acquired Company
or
declaration or payment of any dividend or other distribution or payment
in
respect of any of its shares;
|
|
(c)
|
except
in the Ordinary Course of Business, payment or increase by any Acquired
Company of any bonuses, salaries, or other compensation to any
shareholder, director, officer, or employee, or entry into any employment,
severance, or similar Contract with any director, officer, or
employee;
|
|
(d)
|
except
in the Ordinary Course of Business, adoption of, or increase in the
payments to or benefits under, any profit sharing, bonus, deferred
compensation, savings, insurance, pension, retirement, or other employee
benefit plan for or with any employees of any Acquired
Company;
|
|
(e)
|
damage
to or destruction or loss of any asset or property of any Acquired
Company, whether or not covered by insurance, materially and adversely
affecting the properties, assets, business, financial condition,
or
prospects of any Acquired Company;
|
|
(f)
|
entry
into, termination of, or receipt of notice of termination of (i)
any
license, distributorship, dealer, sales representative, joint venture,
credit, or similar agreement, or (ii) any Contract or transac-tion
involving a total remaining commitment by or to any Acquired Company
of at
least €31,743.45;
|
|
(g)
|
other
than in the Ordinary Course of Business, sale, lease, or other disposition
of any asset or property of any Acquired Company or mortgage, pledge,
or
imposition of any Encumbrance on any material asset or property of
any
Acquired Company, including the sale, lease, or other disposition
of any
of the Intellectual Property
Assets;
|
|
(h)
|
cancellation
or waiver of any claims or rights with a value to any Acquired Company
in
excess of , individually or in the aggregate,
€31,743.45;
|
|
(a)
|
There
are in existence service agreements or employment contracts with
all
officers and or employees of any Acquired Company. No consultancy
agreements or arrangements exist between any Acquired Company and
any
third party.
|
|
(b)
|
There
is not in existence any service agreement with any officer or employee
of
any Acquired Company which cannot be terminated by three months’ notice or
less without giving rise to any claim for damages or compensation
(other
than a statutory redundancy payment or statutory compensation for
unfair
dismissal) and no Acquired Company has received notice of resignation
from
any key employees and there are no commitments or undertakings to
any such
persons other than as set forth in formal written agreements or contracts
already disclosed in writing to the
Purchaser.
|
|
(c)
|
No
offers of employment have been made to employees who have accepted
but not
yet commenced employment.
|
|
(d)
|
Full
particulars are contained in the Disclosure Letter of employee details,
including employee name, job title, contract status, start date,
length of
service, date of last pay review, annual pay, health insurance (if
relevant), disability health insurance (if relevant), permanent health
insurance (if relevant), percentage of pension paid by the Company,
vacation entitlement days, bonus plan (if relevant), employee sales
commission plan (if relevant), company car (if relevant). Section
4.22 of
the Disclosure Letter contains all material employment-related
provisions.
|
|
(e)
|
The
basis of the remuneration payable to the officers or employees of
each
Acquired Company is the same as that in force at the date of the
Interim
Balance Sheet and no Acquired Company is obliged to increase or has
made
any provision to increase the aggregate annual remuneration payable
to the
officers and employees by more than five per
cent.
|
|
(f)
|
There
are no amounts owing to any present or former officers or employees
of any
Acquired Company other than remuneration accrued to date or for
disbursement of business expenses details of which are contained
in the
Disclosure Letter.
|
|
(g)
|
There
is no agreement or arrangement between any Acquired Company and any
officer or employee or former employee with respect to his employment,
his
ceasing to be employed or his retirement which is not included in
the
written terms of his employment or service or previous employment
or
service (as the case may be).
|
|
(h)
|
Each
Acquired Company has maintained current and adequate records regarding
the
service of each of its current and former officers and employees
including, without limitation, details of terms of employment, holidays,
working hours and rest breaks, payment of sick pay, statutory maternity
pay, disciplinary and health and safety matters, PAYE and PRSI payments
and termination of employment.
|
|
(i)
|
No
current or former officer or employee of any Acquired Company has
given or
received notice terminating his or her employment since the date
of the
Interim Balance Sheet.
|
|
(j)
|
No
employee or officer of any Acquired Company is assigned or employed
wholly
or mainly outside of Ireland.
|
|
(k)
|
No
employee or former employee of any Acquired Company is currently
on
maternity leave, paternity leave, parental leave, adoptive leave,
carer’s
leave, study leave or other approved absence (other than holiday
leave) or
has a right to return to work pursuant to the Maternity Protection
Acts,
1994 and 2004, the Adoptive Leave Act, 1995, the Parental Leave Act,
1998
or the Carer’s Leave Act, 2001, or has or may have a right to be
reinstated or re-engaged and no employee of any Acquired Company
is on
long term absence from work due to ill
health.
|
|
(A)
|
all
PRSI contributions (both employer’s and employees’) due and payable by
each Acquired Company will have been duly
paid;
|
|
(B)
|
all
amounts due to the Revenue Commissioners in respect of deductions
which
have been made or which should have been made by any Acquired Company
in
accordance with PAYE regulations from time to time in force have
been
deducted so that no Acquired Company will have any liability in respect
thereof;
|
|
(C)
|
all
certificates relating to matters referred to in this paragraph which
by
law are required to be given by employers to employees (as defined)
have
been given to all employees of Acquired Companies and are true and
accurate in all material respects.
|
|
(m)
|
There
are no schemes in operation by or in relation to a Acquired Company
whereunder any employee of a Acquired Company or any other person
whatsoever is entitled to a commission, incentive payment, remuneration
bonus or other payment of any sort calculated by reference to the
whole or
any part of the turnover, profits or sales of the Acquired
Company.
|
|
(n)
|
Every
employee or former employee of each Acquired Company who should have
been
treated as employed for tax purposes has been so
treated.
|
|
(A)
|
for
breach or termination of or variation of any service agreement with
any of
its officers or employees or former officers or employees including,
without limitation, redundancy payments, protective awards, compensation
for wrongful dismissal or unfair dismissal or failure to comply with
any
order for the reinstatement or re-engagement of any officer or employee
or
former officer or employee; and
|
|
(p)
|
There
is no agreement or arrangement between any of the Acquired Companies
and
any of its employees or former employees with respect to past and/or
current redundancy payments;
|
|
(r)
|
No
Acquired Company has agreed to make any payment to its employees
on
maternity or other protective
leave;
|
|
(s)
|
No
Acquired Company pays nor is it proposing to introduce payment of
commission to any of its employees;
|
|
(u)
|
Save
as disclosed in the Disclosure Letter, there is no agreement or
arrangement between any Acquired Company and any of its employees
with
respect to payment by any of the Acquired Companies of any of its
employee’s medical
insurance/VHI/BUPA/VIVAS.
|
|
(v)
|
Save
as disclosed in the Disclosure Letter, there is no agreement or
arrangement between any Acquired Companies and any of its employees
or
officers with respect to payment by any of the Acquired Companies
of a car
allowance or provision of a car to any of its employees or
officers;
|
|
(w)
|
No
Acquired Company is liable to make payment to any person pursuant
to the
Employment Equality Act, 1977 the Anti-Discrimination (Pay) Act,
1974 or
the Employment Equality Acts, 1998 to
2004.
|
| (a) |
no
liability has been incurred by any Acquired Company for breach or
termination of any service agreement or employment contract with
any of
its employees or former employees including, without limitation,
redundancy payments, protective awards, compensation for wrongful
dismissal or unfair dismissal or failure to comply with any order
for the
reinstatement or re-engagement of any employee or former
employee;
|
|
(b)
|
no
liability has been incurred by any Acquired Company for breach or
termination of any consultancy agreement or other contract for services;
and
|
|
(c)
|
no
Acquired Company has made or agreed to make or promised any payment
or
provided or agreed to provide any material benefit or gratuitous
payment
to any current or former officer or employee of any Acquired Company
or
any dependent of any current or former officer or employee in connection
with the actual or proposed termination or suspension of employment
or
variation of any service agreement of any present or former director
or
employee.
|
|
(a)
|
by
a current or former employee or workman or third party, in respect
of any
accident or injury which is not fully covered by insurance;
|
|
(b)
|
by
a current or former officer or employee in relation to his terms
and
conditions of employment or appointment;
or
|
|
(c)
|
by
a current or former employee for unfair dismissal, notice, redundancy,
wrongful dismissal or breach of
contract;
|
|
(b)
|
all
statutes, regulations and codes of conduct and practice relevant
to the
relations between it and its employees or any trade
union;
|
|
(c)
|
all
collective agreements, customs and practices for the time being dealing
with such relations or the conditions of service of its
employees;
|
|
(d)
|
all
relevant orders and awards made under any relevant statute, regulation
or
code of conduct or practice affecting the conditions of service of
its
employees;
|
|
(e)
|
all
obligations imposed by the European Communities (Protection of Employees
on Transfer of Undertakings) Regulations, 2003 in relation to any
sale,
purchase or other transfer coming within the terms of those Regulations;
|
|
(f)
|
all
obligations imposed by the Safety, Health and Welfare at Work Act,
2005
and all regulations pursuant thereto and amending legislation in
force
from time to time;
|
|
(g)
|
all
recommendations, decisions and determinations made by Industrial
Relations
Officers, the Labour Relations Commission, Rights Commissioners,
Equality
Officers, the Employment Appeals Tribunal or by the Labour Court;
and
|
|
(h)
|
all
obligations in respect of part-time workers imposed by the Protection
of
Employees (Part-Time Work) Act,
2001.
|
|
(a)
|
given
notice of any redundancies to its employees and/or the Minister for
Enterprise, Trade and Employment or started consultations in respect
of
redundancies with any trade union or directly with employees and/or
their
representatives whether pursuant to Part II of the Protection of
Employment Act, 1977 and 2000 or Regulation 7 of the European Communities
(Safeguarding of Employees’ Rights on Transfer of Undertakings)
Regulations 1980 and 2000 or otherwise;
and
|
|
(b)
|
been
a party to any relevant transfer within the scope of the European
Communities (Safeguarding of Employees’ Rights on Transfer of
Undertakings) Regulations, 1980 and 2000 nor has any Acquired Companies
member failed to comply with any duty to inform and consult any trade
union under those Regulations.
|
|
(b)
|
admit
to membership any person who would not otherwise have been eligible
for
admission to membership; or
|
|
(c)
|
admit
to membership any person on terms which provided for or envisaged
the
payment of a transfer value or a transfer of assets from another
scheme to
any of the Pension Schemes in a case in which the payment or transfer
has
not been made or has not been made in full;
or
|
|
(a)
|
the
Purchaser has been notified of the rates at which contributions to
the
Pension Scheme have been paid in respect of each member of the Pension
Scheme and the basis on which they are calculated and whether they
are
paid in advance or in arrear; and
|
|
(b)
|
no
assurance, promise or guarantee (whether oral or written) has been
made or
given to any past or present employee or officer of any particular
level
or amount of benefits to be provided for in respect of him on retirement,
death or leaving service under the Pension Scheme;
and
|
|
(c)
|
all
contributions due to the Pension Scheme have been paid in full by
the due
date for payment in accordance with the requirements of section 58A
of the
Pensions Act; and
|
|
(d)
|
the
Pension Scheme was established as a Defined Contribution Scheme and
has
not previously been converted from a Defined Benefit Scheme and was
not
established in succession to a Defined Benefit Scheme relating to
the same
employment.
|
|
(a)
|
Each
Pension Scheme is Approved and, so far as the Vendors are aware,
there are
no circumstances which might give the Revenue Commissioners reason
to
withdraw Approval.
|
|
(b)
|
Each
Pension Scheme has been designed to comply with, and has been administered
in accordance with:
|
|
(i)
|
all
applicable laws including, without limitation, the Pensions Act and
all
relevant statutes and subordinate legislation of Ireland and all
relevant
provisions of the laws of the European Communities;
and
|
|
(iii)
|
the
requirements of the Retirement Benefits District of the Revenue
Commissioners for exempt approval.
|
|
(d)
|
The
Occupational Pension Schemes (Member Participation in the Selection
of
Trustees) Regulations, 1994, have never been invoked in respect of
any of
the Pension Schemes.
|
|
(e)
|
So
far as the Vendors are aware, there has been no breach of the trusts
of
any of the Pension Schemes and the PHI Scheme and there are no actions,
suits or claims (other than routine claims for benefits) outstanding,
pending or threatened against the trustees or administrator of any
of the
Pension Schemes or the PHI Scheme or against any Acquired Company
or any
other employer participating in any of the Pension Schemes or the
PHI
Scheme in respect of any act, event, omission or other matter arising
out
of or in connection with the Pension Schemes or PHI Scheme as the
case may
be and there are no circumstances which may give rise to any such
claim.
|
|
(g)
|
Each
Pension scheme is a Defined Contribution Scheme and has not been
represented as anything other than a Defined Contribution Scheme
to any
past or present member.
|
|
(a)
|
The
Purchaser has been furnished with a true and complete list of the
present
and former employees who are or were members of each of the Pension
Schemes and the PHI Scheme with all particulars of them relevant
to their
membership of the applicable Pension Scheme and/or the PHI Scheme
as are
necessary to establish their entitlement to
benefits.
|
|
(b)
|
Each
past or present employee or officer who has been admitted to or promised
admission to membership of any of the Pension Schemes or the PHI
Scheme
has been admitted or promised admission as of the date on which he
first
became entitled to admission and the substance of the terms of the
admission or promised admission have been communicated to such past
or
present employee or officer.
|
|
(a)
|
The
trustees of each of the Pension Schemes have legal title to all the
assets
of the Pension Scheme of which they are the trustees and there are
no
encumbrances over any of the assets of any of the Pension
Schemes.
|
|
(b)
|
No
person holds as an asset of any of the Pension Schemes any securities
issued by, properties leased to or occupied by, and no loans have
been
made out of the assets of any of the Pension Schemes which are at
the date
of this agreement outstanding to, the Vendors or any company connected
with any of them.
|
|
(b)
|
Each
Acquired Company has been properly admitted to participation in each
Pension Scheme and has duly complied with its obligations under each
Pension Scheme and all amounts due to be paid to each Pension Scheme
from
each Acquired Company and its employees have been
paid.
|
| (a) |
the
names of each of the Acquired Companies, all fictional business names,
trading names, domain names, registered and unregistered trademarks,
service marks, and applications (collectively, "Marks") of the Acquired
Companies or owned, used or licensed by any Acquired Company as licencee
or licensor;
|