Exhibit 10.1
SHARE SALE AND PURCHASE AGREEMENT
AND ASSIGNMENT OF SHARES IN
AAVID THERMALLOY GERMANY HOLDINGS GMBH
Today, on July 11, 2002 (two thousand and two), appeared before me,
XX. XXXXX XXXXXXXX
Notary Public in Passau, with his business seat at 94032 Passau, Gro(beta)e
Xxxxxxxxxxxx 0x, Xxxxxxx
1. Xx. Xxxxx Xxxxxx
identified by his identity card and acting not for himself, but on behalf
of
AAVID THERMAL TECHNOLOGIES, INC.
(Delaware)
Xxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxx Xxxxxxxxx 00000
X.X.X.
- SELLER -
based on certified and, by adding of an Apostille, legalized
Power-of-Attorney dated July 2, 2002, presented as original and attached as
copy
and
2. Xx. Xxxxxx Xxxxxxx
personally known to me and acting not for himself, but on behalf of
ELECTROVAC FABRIKATION ELECTROTECHNISCHER SPEZIALARTIKEL GES MBH
Xxxxxxxxxxx 00-00, 0000 Xxxxxxxxxxxxxx
Xxxxxxxxxx/Xxxxxxx
- PURCHASER -
based on certified Power-of-Attorney dated July 10, 2002 presented as
original and attached as copy.
At the request of the persons appearing I record, after denial of prior
involvement, in accordance with his statements the following:
EXECUTION COPY
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SHARE SALE AND PURCHASE AGREEMENT
DATED JULY 11, 2002
BETWEEN
AAVID THERMAL TECHNOLOGIES, INC.,
AS SELLER,
AND
ELECTROVAC FABRIKATION ELECTROTECHNISCHER SPEZIALARTIKEL GESMBH,
AS PURCHASER.
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TABLE OF CONTENTS
SECTION PAGE
1. DEFINITIONS AND INTERPRETATION..............................................................................2
1.1. DEFINITIONS. IN THIS AGREEMENT:......................................................................2
1.2. INTERPRETATION........................................................................................5
2. SALE AND PURCHASE OF THE SHARES.............................................................................7
3. PURCHASE PRICE AND PAYMENT..................................................................................8
4. CLOSING AND POST-CLOSING....................................................................................8
5. REPRESENTATIONS AND WARRANTIES OF THE SELLER................................................................9
5.1. POWER AND AUTHORITY..................................................................................10
5.2. ACCURACY OF INFORMATION..............................................................................10
5.3. STANDING OF AAVID GERMANY AND THE COMPANIES..........................................................11
5.4. TITLE TO THE SHARES; AAVID GERMANY'S CURAMIK SHARES AND THE SUBSIDIARY SHARES........................11
5.5. OTHER SUBSIDIARIES, ASSOCIATIONS AND BRANCHES........................................................12
5.6. THE ACCOUNTS AND THE PRE-CLOSING ACCOUNTS............................................................13
5.7. UNDISCLOSED LIABILITIES..............................................................................14
5.8. CONDUCT OF BUSINESS BETWEEN THE ACCOUNTS DATE AND THE CLOSING DATE...................................15
5.9. DIVIDENDS............................................................................................16
5.10. SUBSIDIES ETC........................................................................................16
5.11. REAL PROPERTY AND OTHER ASSETS.......................................................................17
5.12. INTELLECTUAL PROPERTY................................................................................18
5.13. AGREEMENTS...........................................................................................20
5.14. ANTI-COMPETITIVE ARRANGEMENTS........................................................................21
5.15. NO POWERS OF ATTORNEY................................................................................21
5.16. INSIDER CONTRACTS....................................................................................21
5.17. MARKETING INFORMATION................................................................................22
5.18. CUSTOMERS............................................................................................22
5.19. LITIGATION AND COMPLAINTS............................................................................22
5.20. LICENSES AND COMPLIANCE WITH LAWS....................................................................22
5.21. EMPLOYEES............................................................................................23
5.22. ENVIRONMENTAL........................................................................................25
5.23. INSURANCE............................................................................................26
5.24. NO ILLEGAL OR IMPROPER TRANSACTIONS..................................................................27
5.25. TAX..................................................................................................27
5.26. BROKERS..............................................................................................28
5.27. INDEBTEDNESS ETC BETWEEN ANY OF THE MEMBERS OF THE SELLER GROUP......................................28
6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER............................................................28
6.1. POWER AND AUTHORITY OF THE PURCHASER.................................................................28
6.2. CONSENTS AND APPROVALS...............................................................................29
6.3. DUE DILIGENCE........................................................................................29
6.4. BROKERS..............................................................................................29
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7. CLOSING CONDITIONS.........................................................................................30
7.1. CONDITIONS TO SELLER'S OBLIGATIONS TO CLOSE..........................................................30
7.2. CONDITIONS TO THE OBLIGATIONS OF PURCHASER TO CLOSE..................................................30
8. INDEMNIFICATION - GENERAL..................................................................................31
8.1. BREACH OF THE WARRANTIES.............................................................................31
8.2. COMMERCIAL, GOVERNMENTAL AND CONTRACTUAL LIABILITIES.................................................33
8.3. ENVIRONMENTAL REMEDIATION LIABILITIES................................................................34
8.4. SELLER'S LIABILITY...................................................................................35
8.5. LIMITATION OF SELLER'S LIABILITY.....................................................................35
8.6. PURCHASER'S LIABILITY................................................................................36
9. NOTICES....................................................................................................37
10. TERMINATION; TERMINATION FEE............................................................................38
10.1. TERMINATION..........................................................................................38
10.2. EFFECT OF TERMINATION................................................................................38
10.3. TERMINATION FEE......................................................................................38
11. MISCELLANEOUS...........................................................................................39
12. GOVERNING LAW AND DISPUTES..............................................................................40
SCHEDULES
2 Material Agreements
5.4.2 Aavid Germany Share Capital
5.4.3 Curamik Share Capital
5.4.5 Outstanding obligations, warrants, options, pre-emptive rights
5.4.6 Liens and Security Interests
5.4.7 Voting agreements or other shareholder agreements
5.5.2 Branches or permanent establishments outside of Germany
5.6.1(c) Non-conforming financial statement preparation procedures re:
Accounts
5.6.1(d) Capital Commitments Re: Accounts
5.6.2(c) Non-conforming financial statement preparation procedures re:
Pre-Closing Accounts
5.6.2(d) Capital Commitments Re: Pre-Closing Accounts
5.6.3 Accounts Receivable Aging
5.6.4 Payments Re: post-closing date services/expenses
5.8.3(j) Material investments in fixed assets
5.8.4 Related party payment transactions
5.10.1A Grants, subsidies and instruments pertaining to the receipt of
financial assistance, trade secrets, etc.(confidential)
5.10.1B Grants, subsidies and instruments pertaining to the receipt of
financial assistance (non-confidential)
5.11.1 Real Property
5.11.2 Material defects
5.11.3 Effect of consummation of sale of Shares on Leases
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5.12.1 Intellectual property infringement claims
5.12.2 Registered intellectual property rights
5.12.6 Intellectual property rights held by Seller Group and third
parties
5.13.5 Sole source suppliers; canceled orders and threats to cancel
orders
5.16.1 Insider contracts
5.21.2 List of employees
5.21.3 Consulting agreements
5.21.5 Commissions and non-salary remuneration
5.21.6 Severance, redundancy payment obligations
5.21.9 Employee benefit plans
5.21.12 Collective bargaining, shop or similar agreements
5.21.14 Persons who may be owed obligations under the Employee Inventions
Act
5.21.15 Violations of workers' health and/or safety laws, regulations,
rules and standards
5.22.3 Environmental assessment reports
5.23 Insurance
5.25.1 Tax returns and taxes - open items
5.25.2 Taxes paid or reserved for
5.25.3 Tax penalties, fines, interest
5.25.4 Tax audits, investigations, etc.
EXHIBITS
A Accounts
B Share Transfer Agreement
C Articles of Association of Aavid Germany and the Companies
D Form of Assumption of Subsidy Obligations
SHARE SALE AND PURCHASE AGREEMENT
This share sale and purchase agreement is made on July 11, 2002
BETWEEN
(1) Aavid Thermal Technologies, Inc., a corporation duly incorporated,
organized and validly existing in good standing under the laws of Delaware,
having its principal office located at Xxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxx Xxxxxxxxx 00000 ( "SELLER"); and
(2) Electrovac Fabrikation Electrotechnischer Spezialartikel GesmbH, a company
duly incorporated, organized and validly existing under the laws of
Austria, having its principal office located at Xxxxxxxxxxx 00-00, 0000
Xxxxxxxxxxxxxx, Xxxxxxx, (the "PURCHASER").
WHEREAS
A. Aavid Thermalloy Germany Holdings GmbH, registered under number HRB 2253
with the Commercial Register of the Municipal Court in Weiden/Oberpfalz,
(the "AAVID GERMANY") is a limited liability company incorporated in
Germany, having a registered share capital of Euro25,000 divided into one
share with the following nominal value: Euro25,000 (the "SHARES").
B. curamik electronics GmbH, registered under number HRB 632 with the
Commercial Register of the Municipal Court in Weiden/Oberpfalz ("CURAMIK"),
is a limited liability company incorporated in Germany, having a registered
share capital of Euro25,650 divided into three shares with the following
nominal values: Euro22,950, Euro2,500 and Euro200 (the "CURAMIK SHARES").
C. Curamik Electronics, Inc. (the "SUBSIDIARY") is a corporation organized
under the laws of Texas which is authorized to issue 1,000,000 shares of
common stock 1,000 of which are issued and outstanding (the "SUBSIDIARY
SHARES").
D. Seller owns all of the Shares.
E. Aavid Germany owns Curamik Shares constituting Euro22,950 of Curamik's
registered share capital.
F. Xx. Xxxxx Xxxxx, residing at Xxxx Xxxxx-Strasse 19, 91207 Xxxx a.d.
Pegnitz, Germany ("XX. XXXXX"), owns Curamik Shares constituting Euro2,500
of Curamik's registered share capital.
G. Xx. Xxxxxx Xxxxxx-Xxxxxx, residing at Xxxx Xxxxx-Strasse 32, 91207 Xxxx
a.d. Pegnitz, Germany ("XX. XXXXXX-XXXXXX"), owns Curamik Shares
constituting Euro200 of Curamik's registered share capital..
H. Curamik owns all of the Subsidiary Shares.
I. Curamik is engaged in the business of developing, manufacturing and selling
electronic components and devices consisting wholly or in part, of direct
bonded copper substrate
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materials ("DBC COMPONENTS"). The Subsidiary is engaged in the business of
selling DBC Components manufactured by Curamik.
J. The Seller wishes to sell and the Purchaser wishes to purchase all the
Shares, pursuant to the terms, and subject to the conditions set forth in
this Agreement.
NOW, THEREFORE, the Parties hereto agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions. In this Agreement:
"ACCOUNTING PRINCIPLES" means the accounting principles that have been
consistently applied for each of the financial years immediately preceding
the Accounts Date for Aavid Germany and each of the Companies, and are (a)
with respect to Aavid Germany and Curamik, in accordance with applicable
laws and general accepted accounting principles in Germany; and (b) with
respect to the Subsidiary, in accordance with applicable laws and general
accepted accounting principles in the United States.
"ACCOUNTS" means (a) the audited balance sheets as at the Accounts Date,
and the audited profit and loss reports for the year ending on that date
for Curamik, individually, and the auditors' reports and the notes relating
to them; and (b) the unaudited balance sheet as at the Accounts Date and
the unaudited profit and loss report for the year ending on that date for
each of Aavid Germany and the Subsidiary, individually, copies of all of
which have been attached hereto as Exhibit A;
"ACCOUNTS DATE" means December 31, 2001;
"AFFILIATE" means, when referring to a person, is a person that directly or
indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, the first-mentioned person;
"BENEFIT PLAN" and "BENEFIT PLANS" have the meanings attributed to such
terms in Section 5.21.9;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
are generally open in Eschenbach, Germany for normal business;
"CLOSING" means closing of the sale and purchase of the Shares in
accordance with Section 4;
"CLOSING DATE" means July 17, 2002, or such other date as the Parties shall
mutually agree upon in writing;
"COMPANIES" means collectively, Curamik and the Subsidiary;
"ELIGIBLE CLAIM" means a claim that Seller shall not dispute or which, if
so disputed, shall be resolved, pursuant to Section 12.2 in Purchaser's
favor, in an amount not less
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than Euro10,000 arising from a breach of (a) any Warranty; or (b) any
obligation owed by Seller with respect to any of the commercial,
governmental and contractual liabilities set forth in Section 8.2.
"GOVERNMENTAL ENTITY" has the meaning attributed to such term in Section
6.2;
"INTELLECTUAL PROPERTY RIGHT" means all (i) patents, patent applications,
patent disclosures, utility models, utility model applications and
inventions (including employee inventions whether claimed or not), (ii)
trademarks, service marks, trade dress, trade names, URL's, logos and
corporate names and registrations and applications for registration
thereof, together with all of the goodwill associated therewith, (iii)
copyrights (registered or unregistered) and copyrightable works and
registrations and applications for registration thereof, design patents and
applications for registration thereof, (iv) mask works and registrations
and applications for registration thereof, (v) computer software, data,
data bases and documentation thereof, (vi) trade secrets and other
confidential information (including ideas, formulas, compositions,
inventions (whether patentable or unpatentable and whether or not reduced
to practice), know-how, manufacturing and production processes and
techniques, research and development information, drawings, specifications,
designs, plans, proposals, technical data, copyrightable works, financial
and marketing plans and customer and supplier lists and information), (vii)
other intellectual property rights and (viii) copies and tangible
embodiments thereof (in whatever form or medium);
"LIEN" means any right which (a) shall entitle any person to terminate,
amend, accelerate or cancel any agreement, option, license or other
instrument to which any of the Companies is a Party by reason of the
occurrence of (i) a violation, breach or default thereunder by any of the
Companies; or (ii) an event which with or without notice or lapse of time
or both would become a default thereunder; or (b) if exercised by the
holder thereof, will (i) entitle such person to accelerate the performance
of any obligations or the payment of any sums owed by any of the Companies
under any agreement, option, license or other instrument, or (ii) result in
any loss of any benefit under, or the creation of any pledges, claims,
equities, options, liens, charges, call rights, rights of first refusal,
"tag" or "drag" along rights, encumbrances and security interests of any
kind or nature whatsoever on any of the property or assets of any of the
Companies;
"MATERIAL ADVERSE EFFECT" means (i) any fact, event or circumstance that
results in or could reasonably be expected to result in an adverse change
or effect in the financial condition, assets, liabilities, business,
properties, results of operations or business prospects of the Companies,
collectively or individually, which change or effect is material with any
other such changes or effects, to the specified entities or entity, or (ii)
any event, matter, condition or effect which materially impairs the ability
of the specified entities or entity to perform on a timely basis their or
its obligations under this Agreement or the consummation of the
transactions contemplated hereby;
"MATERIAL AGREEMENT" means each agreement listed in Schedule 2 which has
been delivered in escrow to Xxxx Xxxxxxxx, Esq. who shall hold same until
the Closing, at which time he shall deliver such Schedule to the Purchaser;
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"MATERIAL PRE-CLOSING CLAIM" means a claim that Seller shall not dispute or
which, if so disputed, shall be resolved, pursuant to Section 12.2 in
Purchaser's favor, in an amount equal to or greater than Euro300,000
arising from a breach of (a) any Warranty; or (b) any obligation owed by
Seller with respect to any of the commercial, governmental and contractual
liabilities set forth in Section 8.2.
"MEMBER OF THE SELLER GROUP" means Seller, Aavid Germany, Curamik or the
Subsidiary, as the case may be;
"NET ASSETS" means the Operating Assets less Operating Liabilities;
"NET ASSETS ADJUSTMENT" has the meaning attributed to such term in Section
3.3;
"NET ASSETS CERTIFICATE" has the meaning attributed to such term in Section
3.3;
"OPERATING ASSETS" means the difference, determined as at the Pre-Closing
Account Date, between (a) the sum of the current assets and property, plant
and equipment of each of the Companies; and (b) the sum of the cash and
cash equivalents of each of the Companies;
"OPERATING LIABILITIES" means the sum of the trade accounts payable,
accrued expenses and other liabilities and accrued taxes payable (as such
terms are employed in the balance sheet included in the Accounts) of each
of the Companies determined as at the Pre-Closing Accounts Date;
"PARTIES" means collectively, the Seller and the Purchaser;
"PARTY" means individually the Seller or the Purchaser, as the case may be;
"PERSON" means a natural person, company, corporation, partnership,
association, trust or any unincorporated organization;
"PRE-CLOSING ACCOUNTS" means (a) the unaudited balance sheets as at the
Pre-Closing Accounts Date and the unaudited profit and loss reports for the
Pre-Closing Accounts Period for each of Aavid Germany and Curamik,
individually as well as on a consolidated basis, and the notes relating to
them; and (b) the unaudited balance sheet as at the Pre-Closing Accounts
Date and the unaudited profit and loss report for the Pre-Closing Accounts
Period for the Subsidiary, individually;
"PRE-CLOSING ACCOUNTS DATE" means the last day of the month immediately
preceding the month during which the Closing shall take place;
"PRE-CLOSING ACCOUNTS PERIOD" means the date commencing on the date
immediately following the Accounts Date and ending on the Pre-Closing
Accounts Date;
"PURCHASE PRICE" has the meaning attributed to such term in Section 3.1;
"SELLER GROUP" means the Seller, Aavid Germany, Curamik and the Subsidiary,
collectively.
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"SOCIAL SECURITY CONTRIBUTIONS" mean all payments to be made by any of the
Companies under applicable law for health (Krankenversicherung),
unemployment (Erwerb-slosenversicherung), retirement (Rentenversicherung),
accident (Unfallversicherung), social care (Pflegeversicherung) and any
other insurance coverage or benefit scheme;
"TAX", "TAXES" and "TAXATION" mean (a) income taxes, ad valorem taxes,
excise taxes, withholding taxes, stamp taxes or other taxes of or with
respect to gross receipts, premiums, real property, personal property,
windfall profits, sales, use, transfers, licensing, employment, payroll
and franchises imposed by or under any federal, state, local or foreign
statute, law, rule or regulation, and such terms shall include any
interest, fines, penalties, assessments or additions to tax resulting
from, attributable to or incurred in connection with any such tax or any
contest or dispute thereof; (b) liability of any of the Companies or any
fiduciary for the payment of any amounts of the type described in clause
(a) as a result of being a member of an affiliated, combined consolidated
or unitary group for any taxable period; and (c) liability of any of the
Companies for the payment of any amounts of the type described in clauses
(a) or (b) as a result of any express or implied obligation to indemnify
any other person;
"TAXATION AUTHORITY" means any federal, state, local or foreign
governmental agency, department or other entity which is authorized by
applicable law to assess and collect Taxes; and
"WARRANTIES" means the warranties and representations set out in Article 5
below.
1.2. Interpretation
(a) As used in this Agreement and each Schedule hereof and Exhibit
hereto, unless the context clearly indicates otherwise:
(i) words used in the singular include the plural and words in the
plural include the singular;
(ii) reference to any person includes such person's successors and
assigns, but only if such successors and assigns are permitted
by this Agreement or such other Schedule hereof or Exhibit
hereto, and reference to a person in a particular capacity
excludes such Person in any other capacity;
(iii) reference to any gender includes the other gender;
(iv) whenever the words "include," "includes" or "including" are
used in this Agreement or any Schedule hereof or Exhibit
hereto, they shall be deemed to be followed by the words
"without limitation" or "but not limited to" or words of
similar import;
(v) reference to any Article, Section, Exhibit or Schedule means
such Article or Section of, or such Exhibit or Schedule to,
this Agreement, as the case may be, and references in any
Section or definition to any clause means such clause of such
Section or definition;
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(vi) the words "herein," "hereunder," "hereof," "hereto" and words
of similar import shall be deemed references to this Agreement
as a whole and not to any particular Section or other
provision hereof;
(vii) reference to any agreement, instrument or other document means
such agreement, instrument or other document as amended,
supplemented and modified from time to time to the extent
permitted by the provisions thereof and by this Agreement;
(viii) reference to any law (including statutes and ordinances)
means such law (including all rules and regulations
promulgated thereunder) as amended, modified, codified or
reenacted, in whole or in part, and in effect at the time of
determining compliance or applicability, and reference to any
particular provision of any law shall be interpreted to
include any revision of or successor to that provision
regardless of how numbered or classified;
(ix) relative to the determination of any period of time, "from"
means "from and including," "to" means "to but excluding" and
"through" means "through and including";
(x) in the event of any conflict between the provisions of the
body of this Agreement and the Exhibits or Schedules hereto,
the provisions of the body of this Agreement shall control;
(xi) the titles to Articles and headings of Sections contained in
this Agreement have been inserted for convenience of reference
only and shall not be deemed to be a part of or to affect the
meaning or interpretation of this Agreement; and
(xii) the word or phrase "material," "any material respect;" "all
material respects;" "in material compliance with" and all such
other words or phrases of similar construction employed in
this Agreement shall mean, if such word or phrase refers to
1) a Person's compliance with a statute, law, ordinance,
regulation or rule enacted or promulgated by a governmental
authority having jurisdiction over such Person, that the
Person's conduct or actions do not or shall not constitute,
have not resulted in or shall not result in, a violation
thereof which would entitle that governmental authority to a)
obtain a judgment, injunction or other court order awarding
monetary damages or imposing monetary sanctions against, or
restricting the conduct of, such Person in a manner that is
consequential to the Person's earning power over a
commercially reasonable period of time; or b) terminate any
right, license, franchise, subsidy or other grant previously
awarded by such authority to such Person that is consequential
to the Person's earning power over a commercially reasonable
period of time;
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2) a Person's compliance with, conduct pursuant to or
representations and warranties made in, an agreement
(including this Agreement), license, deed or other instrument
or document entered into and executed by such Person which
pertains to or grants rights with respect to material assets,
material Intellectual Property Rights or material property of
any nature and description (in each case, a "Rights
Instrument"), that the Person's conduct or actions do not or
shall not constitute, have not resulted in or shall not result
in, a default thereunder that, if not cured within the time
provided therefor, would entitle any other party to the Rights
Instrument to 1) rescind, cancel, terminate or materially
adversely affect the defaulting Person's rights under such
Rights Instrument; or 2) obtain a judgment, injunction or
other court order awarding monetary damages or imposing
monetary sanctions against; or restricting the conduct of,
such Person in a manner that is consequential to the Person's
earning power over a commercially reasonable period of time;
and
3) a Material Adverse Effect, an adverse change or effect in
the financial condition, assets, liabilities, business,
properties, results of operations or business prospects of the
Companies, collectively or individually, the amount of which
shall be in excess of the applicable limit set forth in clause
4) hereof.
(b) This Agreement and each of the Schedules hereof and Exhibits hereto
were negotiated by the Parties with the benefit of legal
representation, and no rule of construction or interpretation
otherwise requiring this Agreement or any of the Schedules hereof
and Exhibits hereto to be construed or interpreted against any Party
shall apply to any construction or interpretation hereof. Subject to
Section 11.4, this Agreement shall be interpreted and construed to
the maximum extent possible so as to uphold the enforceability of
each of the terms and provisions hereof, it being understood and
acknowledged that this Agreement was entered into by the Parties
after substantial negotiations and with full awareness by the
Parties of the terms and provisions hereof and the consequences
thereof.
(c) Where a statement in this Agreement (including the schedules) is
qualified by the expression "to the best of the Seller's knowledge"
or "so far as the Seller is aware" or any similar expression shall
be deemed to include the Seller's actual knowledge and what the
Seller should have known after reasonable inquiry of the Managing
Director, the members of the Board of Directors and any relevant
person(s) involved in the management of the business of each of the
respective Companies, such as the controller, the human resources
manager and the technology and manufacturing management.
2. SALE AND PURCHASE OF THE SHARES
2.1. The Seller shall sell and assign and the Purchaser shall purchase and
accept the assignment of the Shares under the terms of this Agreement.
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2.2. The assignment of the Shares to the Purchaser, as herein and in Exhibit B
hereto provided, shall be effective and in force upon fulfillment or
waiver of all conditions precedent contained as Closing Conditions in
Section 7 and exchange of confirmations of the Parties on such fulfillment
or waiver upon Closing pursuant to Section 4.2(a) against payment of the
Purchase Price pursuant to Section 3.2.
2.3. The sale of the Shares by the Seller to the Purchaser shall include all
rights of the Seller thereunder.
3. PURCHASE PRICE AND PAYMENT
3.1. The purchase price for the Shares and the compensation to be paid for all
obligations assumed or to be performed by the Seller hereunder shall be
Euro31,290,000, minus, to the extent applicable, the Net Assets
Adjustment (the "Purchase Price").
3.2. The Purchase Price shall be paid at Closing to the Seller.
3.3. On the Closing Date, the Seller shall deliver to the Purchaser a
certificate of the accounting firm that audited the Accounts which shall
contain a calculation of the Operating Assets and the Operating
Liabilities in accordance with the provisions of this Agreement, and shall
state the amount of the Net Assets (the "Net Assets Certificate"). In the
event that the Net Assets is less than Euro8,000,000, the difference
therein as stated in said certificate (the "Net Assets Adjustment") shall
be applied as an adjustment to the Purchase Price pursuant to Section 3.1
3.4. The Parties agree that no Taxes or other public charges shall be payable
in addition to the Purchase Price. The costs of notarization of this deed
shall be borne by the Purchaser.
3.5. The Seller recognizes and agrees that any and all payments and deliveries
made by the Purchaser to the Seller shall be in full discharge of the
Purchaser's obligations to the Seller under this Agreement. The Purchaser
has no responsibility whatsoever for the allocation of the Purchase Price
among the Seller.
4. CLOSING AND POST-CLOSING
4.1. Closing shall take place at the offices of Hall Xxxxxxx Xxxx Xxxxxxxxx &
Wood, LLP at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, XXX. All actions
taken at the Closing shall be deemed to have been taken simultaneously at
the time the last of any such actions is taken or completed. The Closing
shall occur at 3:00 P.M. local time on the Closing Date.
4.2. At Closing the Seller shall
(a) confirm in writing in the form included in Exhibit B hereto that all
Closing Conditions and any other conditions precedent to the
assignment of the Shares, are fulfilled, pursuant to the provisions
of the Share Assignment Agreement annexed hereto as EXHIBIT B, and
that the assignment of all of the Seller's
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respective rights, title and interests in the Shares therewith has
become legally effective;
(b) deliver to the Purchaser the written resignations of such of the
officers, members of the Boards and/or managing directors of Aavid
Germany and of each of the Companies, other than Xx. Xxxxx and Xx.
Xxxxxx-Xxxxxx, as the Purchaser shall designate in writing not later
than five days prior to the Closing, in each case acknowledging that
such resigning officer or Board member has no claim against the
Company whether for loss of office or otherwise;
(c) deliver to the Purchaser duly executed minutes of a shareholders'
resolution of Aavid Germany on the appointment of Xx. Xxxxxx
Xxxxxxx, born May 3, 1956 and Xx. Xxxx Xxxxx, born October 4, 1958
as managing directors of Aavid Germany each released from the
limitations of Section 181 Alt 2 (Verbot der Mehrvertretung) of the
German Civil Code; and
(d) deliver to the Purchaser the written release by Canadian Imperial
Bank of Commerce of the pledge on the Shares and the security
interests as set out in Schedule 5.4.6.
4.3. At Closing the Purchaser shall
(a) transfer the amount to be paid pursuant to Section 3.2 by wire to
account no 4112017009 at Citibank AG - Frankfurt, Neue Xxxxxxx
Xxxxxxx 00, 00000 Xxxxxxxxx Xxxxxxx (Swift Address: CITIDEFF) in the
name of Keybank National Association, Cleveland, Ohio for the
benefit of Aavid Thermalloy/Aavid Thermal Technologies as full
consideration for the Shares and for all obligations assumed or to
be performed by the Seller hereunder; and
(b) confirm in writing in the form as included in Exhibit B hereto that
all Closing Conditions, and any other conditions precedent to the
assignment of the Shares, are fulfilled, pursuant to the provisions
of the Share Assignment Agreement annexed hereto as Exhibit B, and
that the Purchaser's acceptance of assignment of all of the Shares
therewith has become legally effective.
4.4. At the Closing and from time to time thereafter, the Seller shall execute
such additional instruments and take such other reasonable actions as
Purchaser may reasonably request in order to effectively sell, transfer
and assign the Shares to Purchaser and confirm Purchaser's title thereto.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLER
In entering into this Agreement, Purchaser is relying upon the correctness
of the representations and warranties as defined in Section 434 para 1
sentence 1 German Civil Code ("Beschaffenheitsangaben" as defined in ss.
434 Absatz 1 Satz 1 BGB) made by the Seller to the Purchaser below. The
parties to this Agreement agree that the representations and warranties
contained in this Article 5 are not given as "Garantien" in
10
the meaning of Sections 444 Alt 2 and 443 of the German Civil Code and
that none of Seller's statements in public, especially advertisement
("Werbung"), in the meaning of Sections 443 para. 1 and 434 para 1
sentence 3 of the German Civil Code shall be interpreted as
representation or warranty. The Seller shall be liable for
representations and warranties being correct both as of the date hereof
as well as on the Closing Date. The Seller and the Purchaser acknowledge
and agree that the representations and warranties contained in this
Article 5 and the legal consequences which will result pursuant to
Article 8 below if any of such representations and warranties shall not
be correct or shall not be complied with are homogeneous with, and an
inseparable part of, this Agreement. No other representations and/or
warranties than expressly given in this Article 5 are given by Seller.
Section 434 para 1 sentences 2 and 3 German Civil Code shall not apply.
5.1. Power and Authority
5.1.1. The Seller has full power and authority to sell, assign, transfer
and deliver the Shares to the Purchaser, to perform all other
undertakings of the Seller hereunder and to execute, deliver and
perform this Agreement.
5.1.2 Assuming all filings, registrations, approvals, notifications etc
required by applicable laws are made, the execution and delivery
of this Agreement by the Seller, the assignment of the Shares to
the Purchaser and the Closing of the transactions contemplated
hereby:
(a) will not violate any provision of the respective articles of
association of any member of the Seller Group;
(b) will not violate any statute, rule, regulation, order, award,
judgment, injunction or decree of any public body or authority by
which any member of the Seller Group or any of their respective
properties or assets is bound;
(c) will not result in a violation or breach of, or constitute a
default under, any license, franchise, permit, indenture,
agreement or other instrument to which any member of the Seller
Group is a party, or by which any of them is bound; and
(d) will not result in the creation or imposition of any Lien,
charge or encumbrance of any nature on any of the properties or
assets of Aavid Germany or any of the Companies.
5.2. Accuracy of Information
5.2.1. The particulars relating to Aavid Germany and the Companies, and
their respective businesses, properties and assets set out in this
Agreement without qualification, including the recitals and the
schedules to this Agreement, are correct in all material respects.
The particulars relating to Aavid Germany and the Companies, and
their respective businesses, properties and assets set out in this
Agreement as being "to the best of Seller's knowledge", including
11
the recitals and the schedules to this Agreement, are, to the best
of Seller's knowledge, correct in all material respects.
5.3. Standing of Aavid Germany and the Companies
5.3.1. Each of Aavid Germany and Curamik is duly incorporated, registered
and organized, and validly existing under the laws of Germany and
has the corporate power to own its respective properties and carry
on its respective business as and where its business is now
conducted.
5.3.2. The Subsidiary is duly incorporated, registered and organized, and
validly existing under the laws of Texas and has the corporate
power to own its property and carry on its respective business as
and where its business is now conducted.
5.3.3. All returns, resolutions, minutes, annual reports and other
documents which Aavid Germany and the Companies are required by
law or regulations to file with or deliver to the respective
governmental authorities having jurisdiction over them have been
correctly prepared in all material respects and duly filed or
delivered.
5.3.4. The articles of association (or the similar organizational
documents) of Aavid Germany and the Companies, as attached in
Exhibit C, are in full force and effect in compliance with
applicable laws.
5.4. Title to the Shares; Aavid Germany's Curamik Shares and the Subsidiary
Shares
5.4.1. At the Closing, the Seller shall deliver good and marketable title
to the Shares, free and clear of all Liens, encumbrances, claims,
options and restrictions of every kind.
5.4.2. The Shares as sold under this Agreement represent Euro25,000
(100%) of the registered share capital of Aavid Germany. The
division of the registered share capital of Aavid Germany and the
nominal values of the Shares are set forth in Schedule 5.4.2. The
Shares have been validly issued and are fully paid and
non-assessable. No repayments of share capital of Aavid Germany
has been made to the Seller, and no contribution obligation
(Nachschu(beta)verpflichtung) exists with regard to the Shares.
5.4.3. Aavid Germany is the owner of Curamik Shares with an aggregate
nominal value of Euro22,950 constituting (89.4%) of Curamik's
registered share capital of Euro25,650. The division of the
registered share capital of Curamik and the nominal values of the
shares in the registered share capital of Curamik as well as the
ownership of the remaining shares in the registered share capital
of Curamik are set forth in SCHEDULE 5.4.3. The shares of Curamik
issued to Aavid Germany have been validly issued and are fully
paid and non-assessable. No repayments of share capital of Curamik
have been made to Aavid Germany or any other shareholder of
Curamik, and no contribution
12
obligation (Nachschlu(beta)verpflichtung) exists with regard to
the shares of Curamik held by Aavid Germany or any other
shareholder of Curamik. On the Closing Date, Aavid Germany shall
have good and marketable title to the shares of Curamik issued to
Aavid Germany, free and clear of all Liens, encumbrances, claims,
options and restrictions of every kind.
5.4.4. Curamik is the owner of 100% of the issued and outstanding
Subsidiary Shares. The Subsidiary Shares issued to Curamik have
been validly issued and are fully paid and non-assessable. On the
Closing Date, Curamik shall have good and marketable title to the
Subsidiary Shares, free and clear of all Liens, encumbrances,
claims, options and restrictions of every kind.
5.4.5. Except as set forth in SCHEDULE 5.4.5, there are no outstanding
obligations, warrants, options, pre-emptive rights or other
agreements to which any member of the Seller Group is a party or
otherwise bound providing for the issuance of any additional
shares, warrants, options or other securities of Aavid Germany or
any of the Companies, or for the purchase, repurchase, redemption
or other acquisition of any of the Shares, any of the shares in
the share capital of Curamik, or any of the outstanding shares of
the Subsidiary, except for this Agreement.
5.4.6. Other than security interests pertaining to the Shares granted by
Seller in favor of its senior creditors as set forth in SCHEDULE
5.4.6, there are no options, restrictions, pledges, Liens or other
forms of security or encumbrance on, over or affecting any of the
Shares, any of the shares in the share capital of Curamik or any
of the shares of the Subsidiary, nor is there any commitment to
give or create any of the foregoing.
5.4.7. There are no voting agreements or other shareholder agreements to
which any member of the Seller Group is a party with respect to
the Shares and or any shares in the share capital of any of or the
Companies and/or with respect to the ownership of Aavid Germany or
any of the Companies.
5.5. Other Subsidiaries, Associations and Branches
5.5.1. Except for Aavid Germany's ownership interest in Curamik and
Curamik's ownership interest in the Subsidiary, neither Aavid
Germany nor any of the Companies owns, and none of them has agreed
to acquire, any shares or securities of interest or participation
in any other corporation (whether incorporated in Germany or
elsewhere), or any other entity or business association of
whatever kind.
5.5.2. Except as set forth in Schedule 5.5.2, and except for the
Subsidiary, neither Aavid Germany nor Curamik has any branch or
permanent establishment outside of Germany.
5.5.3. Except for its shareholdings in Aavid Germany and its indirect
controlling interest in Curamik, Seller does not hold directly, or
indirectly through one
13
or several intermediaries, any shares, participations or other
interests in, and does not control any such shares, participations
or interests in any other entity, which is active in the field of
business conducted by Curamik
5.6. The Accounts and the Pre-Closing Accounts
5.6.1. The Accounts:
(a) have been included in Exhibit A;
(b) have been prepared (i) with respect to Aavid Germany and Curamik, in
accordance with German generally accepted accounting principles; and (ii)
with respect to the Subsidiary, in accordance with U.S. generally
accepted accounting principles, and fairly present the financial
condition of Aavid Germany and Curamik, individually, or on a
consolidated basis, as the case may be, and the Subsidiary, individually,
as at the Accounts Date, and of the profit or loss of Aavid Germany and
Curamik, individually, and the Subsidiary, individually, for the year
then ended;
(c) have been prepared on bases consistent with the bases respectively
employed in the preparation of the financial statements of Aavid Germany
and each of the Companies for each of the three immediately preceding
fiscal years, except as disclosed in SCHEDULE 5.6.1(c);
(d) contain, except for any capital commitments disclosed on SCHEDULE
5.6.1(d), either provisions adequate to cover, or full particulars in
notes of, all Taxation and other liabilities (whether quantified,
contingent or otherwise) of Aavid Germany and each of the Companies,
individually, or on a consolidated basis, as the case may be, as at the
Accounts Date; and
(e) are not affected by any unusual or non-recurring items or by any
contract or arrangement which is not of arm's length nature.
5.6.2. The Pre-Closing Accounts:
(a) shall be delivered to the Purchaser not less than five calendar days
prior to the Closing Date;
(b) shall be prepared (i) with respect to Aavid Germany and Curamik, in
accordance with German generally accepted accounting principles; and (ii)
with respect to the Subsidiary, in accordance with U.S. generally
accepted accounting principles, and shall present fairly the financial
condition of Aavid Germany and Curamik, individually, and the Subsidiary,
individually, as at the Pre-Closing Accounts Date, and of the profit or
loss of Aavid Germany and Curamik, individually, or on a consolidated
basis, as the case may be, and the Subsidiary, individually, for the
Pre-Closing Accounts Period;
14
(c) on bases consistent with the bases respectively employed in the
preparation of the financial statements of Aavid Germany and each of the
Companies for each of the three immediately preceding fiscal years,
except as disclosed in SCHEDULE 5.6.2(c);
(d) shall contain, except for any capital commitments disclosed on
SCHEDULE 5.6.2(d), either provisions adequate to cover, or full
particulars in notes of, all Taxation and other liabilities (whether
quantified, contingent or otherwise) of Aavid Germany and each of the
Companies, individually, or on a consolidated basis, as the case may be,
as at the Pre-Closing Accounts Date; and
(e) shall not be affected by any unusual or non-recurring items or by any
contract or arrangement which is not of arm's length nature.
5.6.3. SCHEDULE 5.6.3 is a true, correct and complete listing and aging
of each of the respective accounts receivable of the Companies as
of May 31, 2002 determined in accordance with the Accounting
Principles consistently applied and determined in a manner
consistent with the presentation in the Accounts. All of such
accounts receivable have arisen in bona fide arm's length
transactions in the ordinary course of business and are valid and
binding obligations of the account debtors. Such accounts
receivable are collectible in full in the ordinary course of
business, except to the extent of any reserves for doubtful
accounts that have been established with respect thereto. The
reserves for doubtful accounts established by each of the
Companies and reflected on Schedule 5.6.3 have been determined in
accordance with the Accounting Principles consistently applied and
are consistent with the presentation in the Accounts, it being
understood that in no event shall the reserve exceed 10% of the
total face amount of the receivables.
5.6.4. Any payments (in the form of retainers or otherwise) from, the
customers or potential customers of any of the Companies for
services to be rendered or for expenses to be incurred subsequent
to the Closing Date are set forth on SCHEDULE 5.6.4 and have been
recognized consistent with previously applied principles in the
books of each of the Companies.
5.7. Undisclosed Liabilities
As of the date hereof, neither Aavid Germany nor any of the Companies
has, and as of the Closing Date, neither Aavid Germany nor any of the
Companies will have, any liabilities or obligations (whether accrued,
absolute, contingent or otherwise) except (a) to the extent set forth in,
or specifically reserved against in, the Accounts; and (b) for
liabilities and obligations arising in the ordinary course of business
since the Accounts Date, consistent in form and amount with past
practice, none of which liabilities or obligations, individually or in
the aggregate, would have, individually or in the aggregate, a Material
Adverse Effect. Neither Aavid Germany nor any of the Companies is under
any obligation, contingent or otherwise, other than obligations of such
nature incurred in
15
the ordinary course of its respective business, to refund or rebate any
material amounts paid or payable to it for services rendered prior to the
date hereof.
5.8. Conduct of Business Between the Accounts Date and the Closing Date
5.8.1. Since its organization, Aavid Germany has not engaged in any
business activity except as a non-operating holding company with
respect to the Shares and the exercise of its rights as a
shareholder of Curamik.
5.8.2. The activities of each of the Companies during the period from the
Accounts Date to the date of this Agreement have been conducted,
and the activities of each of the Companies during the period from
the date of this Agreement through the Closing date shall be
conducted, in a normal manner and with a view to maintaining each
of them as going concerns.
5.8.3. There has not been, arisen or occurred, during the period between
the Accounts Date and the date of this Agreement in respect of
each of the Companies, and there shall not have been, arisen or
occurred, during the period from the date of this Agreement
through the Closing Date in respect of each of the Companies:
(a) any change in their respective financial conditions or in the
operations of their respective businesses which would have a
Material Adverse Effect;
(b) any amendment or termination of, or any agreement to amend or
terminate, any material agreement;
(c) any material obligations or liabilities incurred, I.E.,
obligations or liabilities other than those arising in the
ordinary course of business consistent in form and amount with
past practices;
(d) any waiver of any debts, claims or rights out of the ordinary
course of business;
(e) any sale, assignment, transfer, lease or other disposal of any
material assets, i.e., assets other than those which the Companies
have historically sold, assigned, transferred, leased or otherwise
disposed of in the ordinary course of their respective businesses
consistent in form and amount with past practices;
(f) any ex gratia payments or promises to any employee;
(g) any loan or advance to any Party in excess of Euro10,000;
(h) any change of accounting methods, principles or practices,
except as disclosed in Schedule 5.6.1(c) and 5.6.2(c);
(i) any change in manner or methods of paying creditors;
16
(j) any material investments in fixed assets, except as disclosed
in SCHEDULE 5.8.3(j); or
(k) any material increase in compensation or benefits or
introduction of new benefits to any director, officer or employee
of Aavid Germany or any of the Companies.
5.8.4. Summaries describing the payor, the recipient, the amount in
question and the underlying reasons regarding (a) all transactions
since the Accounts Date between Aavid Germany or any of the
Companies and the Seller; and (b) all payments by Aavid Germany or
any of the Companies to the Seller since the Accounts Date, are
set out in SCHEDULE 5.8.4.
5.8.5. On or before the Closing Date, Aavid Germany and each of the
Companies shall undertake such transactions as may be necessary so
that at the time of Closing of the transactions contemplated
herein and hereby, neither Aavid Germany nor any of the Companies
shall have (a) any cash on hand except for the cash that Curamik
must have on hand pursuant to the provisions of Section 7.2.4; or
(b) any liabilities other than the Operating Liabilities.
5.9. Dividends
Except as set out in the Accounts and the minutes from the respective
general shareholders or directors meetings of Aavid Germany and each of
the Companies, neither Aavid Germany nor any of the Companies has
declared, since the Accounts Date, any dividends or made any other
distributions of profits or assets to their respective shareholders. No
directors' or shareholders' resolutions concerning profit distributions
have been adopted by Aavid Germany or any of the Companies, or will be
adopted through the Closing Date. All dividends or other distributions of
profits or assets declared, made or paid by Aavid Germany or any of the
Companies have been declared made and paid in accordance with applicable
laws and their respective articles of association. The performance based
bonus payments made by Curamik pursuant to its employment agreements with
each of Xx. Xxxxx and Xx. Xxxxxx-Xxxxxx were based upon Curamik's
achievement of a pre-determined amount of EBITDA. Such payments were not
intended to be distributions of Curamik's earnings and profits, and
Curamik shall not be obligated to make further payments of such bonuses
in any year in which such the pre-determined amount of EBITDA shall not
be achieved. Accordingly, the Parties agree that, for purposes of this
Agreement, the making of such payments shall not be viewed as a basis for
establishing any entitlement in the nature of a custom and practice
(betriebliche Ubung). Nothing contained in this Section 5.9 shall be
construed as limiting or prohibiting the rights of Aavid Germany, Curamik
and the Subsidiary, pursuant to Section 5.8.5, but subject to Section
7.2.4, to transfer or reduce their respective holdings of cash on hand.
5.10. Subsidies etc.
17
5.10.1. A list identifying and setting forth the particulars regarding
all grants, subsidies and instruments pertaining to the receipt of
financial assistance with respect to which Aavid Germany, Curamik
and/or the Subsidiary is a party and which relate to trade
secrets, and/or competitively sensitive information about
products, processes or customers of any of Aavid Germany, Curamik
and the Subsidiary is set forth in SCHEDULE 5.10.1A. A list
identifying and setting forth the particulars regarding all other
grants, subsidies and instruments pertaining to the receipt of
financial assistance with respect to which Aavid Germany, Curamik
and/or the Subsidiary is a party is set forth on SCHEDULE 5.10.1B.
Schedule 5.10.1A has been delivered in escrow to Xxxx Xxxxxxxx,
Esq. who shall hold same until the Closing, at which time he shall
deliver such Schedule to the Purchaser. Except as set forth in
Schedule 5.10.1A and Schedule 5.10.1B, neither Aavid Germany nor
any of the Companies is subject to any arrangement for receipt or
repayment of any grant, subsidy or financial assistance from any
government department or other body.
5.10.2. Curamik has complied and will, through the Closing Date continue
to comply in all material respects with the conditions,
regulations and rules applying to the Subsidies set forth in
Schedule 5.10. The continuation after the Closing of the business
of Curamik as presently conducted will not violate the conditions,
regulations and rules applicable to the Subsidies in any material
respect; and consummation of the transactions contemplated in this
Agreement will not violate in any material respect the conditions,
regulations and rules applicable to the Subsidies set forth in
Schedule 5.10.
5.11. Real Property and Other Assets
5.11.1. Neither Aavid Germany nor any of the Companies owns any real
property. SCHEDULE 5.11.1 sets for the addresses of all real
property leased by Aavid Germany and any of the Companies, as
lessee (the "Properties"). Neither Aavid Germany nor any of the
Companies engages in manufacturing activities at any of the
Properties located outside of Germany.
5.11.2. To the best of Seller's knowledge, (a) there is no material
defect in the structure or physical condition of any of the
Properties; (b) except as disclosed on SCHEDULE 5.11.2, each of
the Properties is in good operating condition and repair,
reasonable wear and tear excepted, is usable in the ordinary
course of business and is adequate and suitable for the uses to
which they are being put.
5.11.3. Seller has provided or made available to Purchaser all leases for
each of the Properties which are currently in effect (the
"Leases"). All such Leases are valid and binding in accordance
with their respective terms and neither Aavid Germany nor any of
the Companies is in default in any respect under any Lease or
otherwise in violation of the terms of any such Lease, except for
such instances of default or violation thereunder that would not
18
individually or in the aggregate result in a Material Adverse
Effect. Except as set forth in SCHEDULE 5.11.3, the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby, do not and will not result in a
breach or violation of, or constitute a default or an event that,
with the passage of time or the giving of notice, or both, would
constitute a default or violation, give rise to a right of
termination, material modification (including as to the amount,
timing or nature of lease payments), cancellation or acceleration
or require the consent or approval of any party (other than one or
more of Aavid Germany and the Companies (as applicable)) under any
Lease.
5.11.4. Each of Aavid Germany and the Companies has good and marketable
title or rights as lessees to all real, personal, mixed, tangible
and intangible property of any kind or nature owned or used by
them, and each of them owns each of the assets identified in the
Accounts, in each case, except to the extent otherwise disclosed
in the Accounts or the schedules to this Agreement, free and clear
of all Liens, claims and encumbrances. The assets and properties
owned or leased by Aavid Germany and each of the Companies are, as
at the date hereof, and shall be through the Closing Date,
sufficient to operate and conduct the respective businesses of
Aavid Germany and each of the Companies in a manner consistent
with at least the same standards of quality and reliability as
have been achieved as of the date hereof.
5.11.5. Machinery, equipment and other tangible assets owned by Aavid
Germany and the Companies are in fair or good operating condition
and repair, reasonable wear and tear excepted, are usable in the
ordinary course of business and are adequate and suitable for the
uses to which they are being put. To the best of Seller's
knowledge, none of such items requires any repairs or replacement
except for maintenance in the ordinary course of business or such
other repairs or replacements which are not material, individually
or in the aggregate, in nature or cost. All such assets and
property are located at the Properties.
5.11.6. Except as otherwise set forth in Schedule 5.11.6, none of Aavid
Germany or any of the Companies is contemplating, or is obligated
to make any capital expenditures other than (a) in the ordinary
course of their respective businesses; and (b) in amounts which in
the aggregate, will not exceed Euro20,000 for any of them.
5.12. Intellectual Property
5.12.1. The activities of the Companies (or of any licensee under any
license granted by the Companies) do not infringe in any material
respect or, to the best of Seller's knowledge, are not likely to
infringe on any Intellectual Property Rights, including any moral
rights, of any third party and, except for the notices of
potential claims made by Ixys and Ferraz (the "Ixys and Ferraz
Claims"), and as otherwise set forth on SCHEDULE 5.12.1, no claim
has been
19
made, has been threatened or, to the best of Seller's knowledge,
is likely to be made or threatened, against any of the Companies
or any such licensee in respect of such infringement.
5.12.2. A list of all registered Intellectual Property Rights (including
applications to register the same) owned or licensed by Aavid
Germany or any of the Companies is set out in Schedule 5.12.2.
Such list contains with respect to each of the Intellectual
Property Rights identified thereon, a description thereof, the
owner of each of such Intellectual Property Rights, the royalty
and/or other compensation, if any, to be paid by Aavid Germany or
any of the Companies to the owner thereof and the date, if any,
when the Intellectual Property Rights held by Aavid Germany or any
of the Companies shall expire. Each of the Intellectual Property
Rights owned or licensed by Aavid Germany or any of the Companies
is valid, owned or licensed, as the case may be, by the owners or
applicants identified in Schedule 5.12.2, enforceable, not subject
to any Lien, other encumbrance or any license or authority in
favor of another and, to the to the best of the Seller's
knowledge, not being infringed. All application and renewal fees
pertaining to such Intellectual Property Rights have been paid and
all steps which are reasonably required for the maintenance and
protection of such Intellectual Property Rights have been taken.
There are no legal deficiencies to any of the Intellectual
Property Rights described in Schedule 5.12.2, and no action or
proceeding is pending which contests the validity of any of the
Intellectual Property Rights described in Schedule 5.12.2.
5.12.3. Except for unregistered Intellectual Property Rights that have
not been documented or otherwise described in writing by Aavid
Germany or any of the Companies, neither Aavid Germany nor any of
the Companies (a) uses in its respective business operations any
Intellectual Property Rights, other than the Intellectual Property
Rights identified on Schedule 5.12.2, and (b) is under any
obligation to pay license fees royalties or other remuneration for
any Intellectual Property Rights other than those identified on
said Schedule. Except for unregistered Intellectual Property
Rights owned or licensed by Aavid Germany or either of the
Companies, the Intellectual Property Rights used by Aavid Germany
and the Companies comprise all the rights and interests in
Intellectual Property Rights necessary or convenient for the
carrying on of the business of Aavid Germany and the Companies in
and to the extent which it is presently conducted or intended to
be conducted.
5.12.4. All licenses and agreements pertaining to the Intellectual
Property Rights identified on Schedule 5.12.2 are presently in
effect, no notice having been given by either of the respective
parties thereto to terminate any of them, and no agreements having
been made to alter any of them. The obligations of all parties to
such licenses and agreements have been fully complied with in all
material respects and will be complied with in all material
respects during the period commencing on the date hereof and
continuing through the
20
Closing Date. No disputes have arisen or, to the best of Seller's
knowledge, are foreseeable in respect thereof.
5.12.5. No member of the Seller Group has made any disclosure of know-how
owned or licensed by any of the Companies to any person other than
the Purchaser, except in the ordinary course of business or on the
basis that such disclosure is to be treated as being of a
confidential character.
5.12.6. None of the members of the Seller Group or any third party other
than as disclosed in SCHEDULE 5.12.6, has any rights to any
Intellectual Property Rights used by any of the Companies. All
inventions made by employees of the Companies that the Companies
are using or have used or intend to use, were made in the normal
course of the duties of the employees concerned. There are no
outstanding claims, or to the best of Seller's knowledge,
potential claims, against any of the Companies under any contract
or under Sections 9, 10 of the German Act on Employees' Inventions
or any equivalent provision or case law of any foreign
jurisdiction providing for employee compensation or ownership in
respect of any rights or interests in Intellectual Property
Rights.
5.12.7. The Seller does not hold any Intellectual Property Rights which
are used by any of the Companies or has any claim for compensation
for such Intellectual Property Rights.
5.12.8. The Companies do not carry on business under any names other than
their respective corporate names.
5.12.9. Each of the Companies' abilities to use the Intellectual Property
Rights used by them, respectively, at the date of this Agreement
will not be adversely affected by or impaired in any material
respect as a result of the consummation of the transactions
contemplated hereby.
5.13. Agreements
5.13.1. None of the Companies is party to any contract, agreement,
arrangement or obligation of material importance to its respective
businesses, other than the Material Agreements listed in Schedule
2. Each Material Agreement is valid and in presently in effect.
5.13.2. The Companies have neither received nor given notice of
termination of any Material Agreement. No party to any Material
Agreement has the right to terminate or modify its obligations as
a result of the transactions contemplated by this Agreement.
5.13.3. Neither the Companies, nor the other parties to the Material
Agreements are in material default under or in breach of any
Material Agreement.
21
5.13.4. Except to the extent set forth in Schedule 2, none of the
Companies is party to any contract, agreement, arrangement or
obligation which was not entered into in the ordinary course of
their respective businesses, or any agreement or arrangement which
restricts the Companies' freedom to carry on any business in any
part of the world in such manner as they deem to be fit.
5.13.5. None of the Companies has since January 1, 2002 received any
material complaints concerning products and/or services resulting
in each individual case in a cost or other charge for any of the
Companies exceeding Euro25000. Except as set out in SCHEDULE
5.13.5, none of the Companies' customers has since January 1, 2002
threatened or to the best of the Seller's knowledge attempted to
cancel or reduce any material purchases from any of the Companies.
None of the Companies' suppliers has since January 1, 2002
canceled or reduced or to the knowledge of the Seller is currently
attempting to cancel or reduce the supply of products or services
to any of the Companies. Except as otherwise disclosed on Schedule
5.13.5, none of the Companies' suppliers, with the exception of
public utility suppliers, is the sole source of supply without any
other available source of supply preventing the Companies to
obtain at substantially equivalent terms and conditions a source
of supply of products or services.
5.14. Anti-Competitive Arrangements
5.14.1. To the best of Seller's knowledge, neither Aavid Germany nor any
of the Companies has been, since its respective date of
registration, a party to any agreement, arrangement, concerted
practice or course of conduct which:
(a) infringes in any material respect any law, legislation or
regulation (civil or criminal) relating to competition,
restrictive trade practices, anti-trust, monopolies, merger
control, fair trading, restraint of trade, pricing, anti-dumping
or free movement of goods and services in any jurisdiction in
which the Companies carry on business or have assets or sales; or
(b) is void or unenforceable (whether in whole or in part) or may
render any of the Companies liable to proceedings under any such
law, legislation or regulation as is referred to in subparagraph
(a) above which would have a Material Adverse Effect.
5.15. No Powers of Attorney
None of the Companies has granted any power of attorney or similar
authority which remains in force as of the date of this Agreement which
would have a Material Adverse Effect.
5.16. Insider Contracts
22
5.16.1. The Companies are not parties to any currently in force contract
or arrangement in which the Seller is interested, directly or
indirectly. There has not been any such contract or arrangement at
any time from the registration of the Companies up to the date of
this Agreement. All contract agreements and other arrangements
between the Companies and the Seller or any affiliate of the
Seller are listed in SCHEDULE 5.16.1.
5.16.2. The Companies are not parties to any currently in force contract
or arrangement which is not of an arms length nature.
5.16.3. Neither of the Companies nor the Seller has any direct or
indirect interest in any competitor, competing business, supplier
or customer of any of the Companies or in any other person which
conducts a business that competes with the respective businesses
of the Companies.
5.17. Marketing Information
The marketing materials produced by or on behalf of the Companies are not
subject to any restriction which materially and adversely affects the
Companies' respective abilities to use such information for the purpose
of their respective businesses.
5.18. Customers
None of the customers for whom any of the Companies provided material
services at any time since January 1, 2002 has cancelled or otherwise
terminated, or, to the knowledge of the Seller, threatened to cancel or
otherwise terminate, its relationship with the Companies or materially
reduced, or to the knowledge of the Companies and the Seller, has
threatened to materially reduce, its business with the Companies. Neither
any of the Companies nor the Seller has received any notice and none of
them has knowledge or reason to believe that any customer for whom any of
the Companies provided material services at any time since January 1,
2002 intends to cancel or otherwise modify its relationship with the
Companies on account of the transactions contemplated hereby or
otherwise.
5.19. Litigation and Complaints
5.19.1. The Companies are not engaged in any litigation or arbitration
proceedings, and there are no such proceedings pending, or to the
best of Seller's knowledge, threatened against or by any of the
Companies.
5.19.2. To the best of Seller's knowledge, (a) the Companies are not
subject to any investigation, inquiry or enforcement proceedings
or processes by any governmental, administrative or regulatory
body, and (b) Seller is not aware of anything which is likely to
give rise to any such investigation, inquiry, proceedings or
process.
5.20. Licenses and Compliance with Laws
23
The respective operations of the Companies have been conducted in
material compliance with applicable laws, their respective articles of
association, and applicable regulations, judgments, orders and the like.
Each of the Companies has all necessary licenses and permits required for
the operation of its business; each such license and permit is in full
force and effect; no material violations are or have been recorded in
respect of any such existing licenses or permits which remain
uncorrected; no proceeding is pending which seeks the revocation or
limitation of any such existing licenses or permits or that might
prejudice their renewal; and, to the best of Seller's knowledge, no
grounds exist for revocation of, or for the commencement of limitation
proceedings with respect to, any of such licenses or permits.
5.21. Employees
5.21.1. Aavid Germany has no employees. Curamik currently has two
Persons employed pursuant to agreements with Seller's subsidiary
in Italy. Such agreements shall be terminated, or Curamik's
obligations thereunder shall be assumed without recourse by
another Person (other than Aavid Germany or either of the
Companies) on or before the Closing Date.
5.21.2. SCHEDULE 5.21.2 lists the Companies' respective employees and
also sets forth all outstanding offers (whether accepted or not)
of employment made to any person by any of the Companies.
5.21.3. SCHEDULE 5.21.3 describes the material particulars of any
agreement for the provision of consulting services to any of the
Companies by any person.
5.21.4. No current management level employee of any of the Companies has
given, or has been given, notice of termination of his
employment or has indicated an intention to terminate his
employment.
5.21.5. Except as otherwise provided on SCHEDULE 5.21.5, there is no
scheme in operation by or in relation to the Companies under
which any employee or other person is entitled to a commission
or remuneration of any other sort arising in relation to the
level of and/or calculated by reference to the whole or part of
the turnover, profits or sales of the Companies.
5.21.6. Except as otherwise provided on SCHEDULE 5.21.6, none of the
Companies has any obligation to make any severance payment or
pay any compensation for loss of office or employment or a
redundancy payment to any present or former employee (including
directors) or other payment beyond payment of salary during the
period of the notice of termination pursuant to applicable law
and no such sums have been paid since the Accounts Date.
5.21.7. The Companies have in all material respects complied with their
respective obligations to their respective employees and former
employees and any relevant trade union or other employee
representative body, whether such obligations have arisen by
statute, under applicable rulings and decisions by judicial or
governmental authorities, contract, collective agreements
24
(including, but not limited to collective bargaining agreements
and shop agreements). No claim has been made or, to the best of
Seller's knowledge, threatened against any of the Companies or
against any person to whom the Companies are or may be liable
for compensation or indemnification and, to the best of the
Seller's knowledge, no inquiry or investigation has been made or
threatened by any governmental body or authority in respect of
any matter relating to any application for employment by any
person or the employment or termination of employment of any
person, and the Seller are not aware of any circumstance which
may give rise to any such claim or investigation.
5.21.8. To the best of Seller's knowledge, during the twelve month
period which preceded the date of this Agreement, none of the
Companies (a) gave notice of any redundancies to any
Governmental Entity or commenced discussions with appropriate
employee representatives in connection with any proposed
redundancies, and (b) failed to comply with any obligation,
whether legal or otherwise, to engage in such discussions.
5.21.9. SCHEDULE 5.21.9 sets forth a complete list of all "employee
benefit plans" including, but not limited to, employment
contracts, bonus, pension, profit sharing, deferred
compensation, incentive compensation, excess benefit, stock,
stock option, severance, termination pay, change in control or
other employee benefit plans, programs or arrangements,
including those providing medical, dental, vision, disability,
life insurance and vacation benefits (other than those required
to be maintained by law), whether written or unwritten,
qualified or unqualified, funded or unfunded, foreign or
domestic, currently maintained, or contributed to, or required
to be maintained or contributed to, by any of the Companies
(each of which is referred to as a "Benefit Plan" and all of
which are collectively referred to as the "Benefit Plans").
5.21.10. Each of the Companies has made all payments or contributions,
as required by each of the Benefit Plans, applicable law and
generally accepted accounting practices in such aggregate
amounts as are sufficient to cover the full amount of all
liabilities, calculated as at the Accounts Date, in respect of
the present and former directors, officers and employees of the
Companies. Such payments and/or contributions and the respective
obligations of the Companies under their respective Benefit
Plans have been recorded in their respective Accounts or have
been reflected in the notes thereto.
5.21.11. No event has occurred and, to the knowledge of the Seller,
there exists no condition or set of circumstances in connection
with which any of the Companies is or would reasonably be
expected to be subject to any material liability under the terms
of any Benefit Plan, employment contract or any applicable law,
rule or regulation, domestic or foreign. No statement, either
written or oral, has been made by any of the Companies to any
person with regard to any Benefit Plan that was not in
accordance with the terms of the Benefit Plan and that would
have a Material Adverse Effect.
25
5.21.12. Except for the collective bargaining agreement and shop
agreements identified in SCHEDULE 5.21.12, none of the Companies
is a party to or bound, directly or indirectly, by any
collective bargaining, shop or similar agreements.
5.21.13. All Social Security Contributions of any of the Companies which
shall be due and payable prior to Closing have been paid or
shall be paid prior thereto in accordance with the applicable
laws and statutes.
5.21.14. SCHEDULE 5.21.14 identifies each person to whom either of the
Companies may be obligated to pay remunerations under the
Employee Inventions Act (Arbeitnehmererfindungsgesetz). On or
before the Closing Date, Curamik or the Subsidiary, as the case
may be, shall enter into written agreements with each of such
persons that shall satisfy its respective obligations under such
Act. On the Closing Date there shall not be any circumstances on
the basis of which any employee of any of the Companies could
raise such a claim under the Employee Inventions Act against any
of the Companies.
5.21.15. During the three year period ended June 30, 2002, except as
disclosed in SCHEDULE 5.21.15, neither Aavid Germany nor any of
the Companies has violated any workers' health and/or safety
laws, regulations, rules and standards.
5.22. Environmental
5.22.1. For purposes of this Agreement, the term "Environmental Permit"
means any permit, license, approval or other authorization
issued under any Environmental Law (as defined below).
5.22.2. Each of the Companies and their respective properties, assets,
businesses, and operations has all required Environmental
Permits that are material to the business conducted by each of
the Companies, and each of the Companies and their respective
properties, assets, businesses and operations is, and has been,
in compliance with all applicable Environmental Laws (as defined
below) and Environmental Permits, except for such violations as
would not, individually or in the aggregate, have a Material
Adverse Effect. The term "Environmental Laws" means any federal,
state, local or foreign statute, code, ordinance, rule,
regulation, agreement, policy, guideline, technical instruction,
permit, consent, approval, license, judgment, order, writ,
decree, injunction or other authorization, including the
requirement to register underground storage tanks, relating to:
(i) releases or discharges of "Hazardous Material" (as such term
may be defined under any of the Environmental Laws) into the
environment or any structure, including into air, ambient air,
soil, soil gas, sediments, land surface or subsurface, buildings
or facilities, surface water, groundwater, publicly-owned
treatment works, septic systems or land; or (ii) the generation,
treatment, storage,
26
recycling, disposal, use, handling, manufacturing,
transportation, distribution in commerce, or shipment of
Hazardous Material.
5.22.3. No Environmental Claims or Environmental Liabilities (as such
terms are defined below) are being asserted against any of the
Companies and none of the Companies is aware of any acts,
omissions, facts, or circumstances which would so subject it,
arising from or based upon any act, omission, event, condition
or circumstance occurring or existing on or prior to the date
hereof or for which any of the Companies is responsible,
including any such Environmental Claims or Environmental
Liabilities arising from or based upon the present or former
ownership or the present or former operation of assets,
businesses or properties of any of the Companies which, if
adversely determined, would individually or in the aggregate
have a Material Adverse Effect. None of the Companies has
received any notice of any violation of any Environmental Law or
Environmental Permit or any Environmental Claim in connection
with its present or former assets, properties, businesses or
operations. The Seller has provided to Purchaser and has
disclosed on SCHEDULE 5.22.3 all environmental assessment
reports prepared by, or on behalf of, any of the Companies since
January 1, 1997 (or earlier for any such matter which is
unresolved) regarding the environmental condition of any of the
Companies' properties or the environmental compliance of any of
the Companies. The term "Environmental Claim" means any third
party (including claims of Governmental Entities, employees or
other private parties) action, lawsuit, claim, investigation
proceeding which seeks to impose liability for (i) noise; (ii)
pollution or contamination of the air, ambient air, surface
water, ground water, soil, soil gas or any structure, building
or facility; (iii) Hazardous Materials Management; (iv) exposure
to Hazardous Material; (v) the safety or health of employees,
consumers, customers or vendors; or (vi) any violation of any
Environmental Law or Environmental Permit. The term
"Environmental Liabilities" includes all costs arising from any
Environmental Claim or violation or alleged violation or
circumstance or condition which would give rise to a violation
or liability under any Environmental Permit or Environmental Law
under any theory of recovery, at law or in equity, and whether
based on negligence, strict liability or otherwise, including
but not limited to: remedial, removal, response, abatement,
investigative, monitoring, personal injury and damage to
property, and any other related costs, expenses, losses,
damages, investigatory remediation or monitoring costs,
penalties, fines, liabilities and obligations, including
reasonable attorney's fees and court costs.
5.23. Insurance
SCHEDULE 5.23 is a list and description, including policy numbers, of
all insurance policies owned or held by the Companies covering the
Companies, their respective employees or assets. Such policies are in
full force and effect, and the Companies are not in default under any of
them in any material respect. None of the Companies has received any
notice of non-renewal, cancellation or intent to cancel or intent not to
renew with respect
27
to such insurance policies or, to the best knowledge of the Seller, is
there any basis for any such action. Schedule 5.23 also contains a list
of all pending claims with any insurance company and any instances
within the previous three years of a denial of coverage of the Companies
by any insurance company.
5.24. No Illegal or Improper Transactions
No member of the Seller Group, and none of their respective directors,
officers or employees has, directly or indirectly used funds or other
assets of Aavid Germany or any of the Companies, or made any promise or
undertaking, for (a) illegal contributions, gifts, entertainment or
other expenses relating to political activity; (b) illegal payments to
or for the benefit of governmental officials or employees, whether
domestic or foreign; (c) illegal payments to or for the benefit of any
person, firm, corporation or other entity, or any director, officer,
employee, agent or representative thereof; or (d) the establishment or
maintenance of a secret or unrecorded fund; and there have been no
intentionally false or fictitious entries made in the books or records
of Aavid Germany or any of the Companies.
5.25. Tax
5.25.1. Except to the extent disclosed in SCHEDULE 5.25.1, all tax
returns, notices, computations and other documents relating to
any Tax required by law to be filed by Aavid Germany or any of
the Companies prior to Closing have been (or not later than the
Closing Date, shall be) duly and properly filed and all requests
from any Taxation Authority pertaining to any of such filings
have been (or not later than the Closing Date, shall be) duly
and properly answered. Except to the extent disclosed in
Schedule 5.25.1, all returns, notices, computations and other
documents and responses, relating to any taxable year of Aavid
Germany or any of the Companies challenged or which still may be
challenged by the Taxation Authorities, are accurate, are not
subject to any material dispute, and to the best knowledge of
the Seller, are not likely to become subject to any material
dispute.
5.25.2. Except as otherwise set forth in SCHEDULE 5.25.2, each Tax with
respect to Aavid Germany and each of the Companies which shall
be due and payable prior to Closing has been paid or shall be
paid prior thereto (except to the extent disputed). No
assessments for Taxes owed by Aavid Germany or any of the
Companies have been made or proposed which have not been
provided for in the Accounts. All Tax of Aavid Germany and the
Companies relating to the period up to and including the
Accounts Date have been paid or accounted for in the Accounts.
5.25.3. Except as set forth on SCHEDULE 5.25.3, neither Aavid Germany
nor any of the Companies has paid or become liable to pay, and
there are not any circumstances which, to the best knowledge of
the Seller, are likely to arise prior to Closing by reason of
which Aavid Germany or any of the Companies is likely to become
liable to pay, any penalty, fine, surcharge or interest
28
(other than interest unrelated to the assessment of a penalty,
fine or surcharge) to any Taxation Authority.
5.25.4. Except to the extent otherwise disclosed on SCHEDULE 5.25.4,
neither Aavid Germany nor any of the Companies has suffered any
on-site investigation, audit or visit by any Taxation Authority
during the period between January 1, 1999 and the date of this
Agreement; and Seller is not aware, to the best of its
knowledge, of any such investigation, audit or visit planned for
the next twelve months.
5.25.5. Neither Aavid Germany nor any of the Companies shall become
liable for the payment of any Tax solely by virtue of the
execution and/or closing of this Agreement.
5.25.6. No transactions or arrangements involving Aavid Germany or any
of the Companies shall have taken place prior to Closing which
are such that any provision relating to transfer pricing is
likely to be invoked by a Taxation Authority. Except as provided
in the Accounts, Aavid Germany and the Companies have no
liability as of the Accounts Date to Taxation on income or gains
except in respect of and to the extent of income and profits
actually received, nor shall any arrangements prior to Closing
exist which might give rise to such a liability.
5.26. Brokers
No member of the Seller Group has (i) incurred any obligation or
liability, contingent or otherwise, for brokers' or finders' fees or
commissions in connection with the transactions contemplated by this
Agreement which could be payable by Aavid Germany or any of the
Companies; or (ii) made any statement or representation or entered into
any discussion which could give rise to any such obligation or
liability.
5.27. Indebtedness etc between any of the Members of the Seller Group
5.27.1. There is no indebtedness due from any of the members of the
Seller Group to any other member of the Seller Group that shall
not be satisfied in full on or prior to the Closing Date.
5.27.2. No member of the Seller Group has given any guarantees or
indemnities in respect of any liabilities of any other member of
the Seller Group.
6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby gives the following representations and warranties
to the Seller. Unless otherwise specifically stated, the representations
and warranties shall be true and accurate as of the date of Closing.
6.1. Power and Authority of the Purchaser
29
6.1.1. The Purchaser is a limited liability company duly organized and
validly existing under the laws of the Austria.
6.1.2. The Purchaser has full power and authority to purchase the
Shares and to perform all other undertakings hereunder and the
execution, delivery and performance of this Agreement. This
Agreement has been duly and validly executed and delivered by
the Purchaser, and, assuming this Agreement constitutes a valid
and binding obligation of the Seller, this Agreement constitutes
a valid and binding agreement of the Purchaser, enforceable
against the Purchaser in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
6.2. Consents and Approvals
The execution, delivery and performance of this Agreement do not, and
the consummation of the transactions contemplated hereby and compliance
with the provisions of this Agreement will not (a) conflict with or
violate the deed of foundation or the articles of association of the
Purchaser, (b) conflict with or violate any statute, ordinance, rule,
regulation, judgment, order, writ, injunction, decree or law applicable
to the Purchaser, or by which any of them or any of their respective
properties or assets may be bound or affected, or (c) result in a
violation or breach of or constitute a default (or an event which with
or without notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in any loss of any benefit
under, or the creation of Liens on any of the property or assets of the
Purchaser. No consent, approval, order or authorization of, or
registration, declaration or filing with, any federal, state or local
government or any court, administrative or regulatory agency or
commission or other governmental authority or agency, domestic or
foreign (a "Governmental Entity"), is required by the Purchaser in
connection with the execution and delivery of this Agreement by the
Purchaser or the consummation by it of the transactions contemplated
hereby, except for consents, approvals, orders, authorizations,
registrations, declarations or filings, the failure of which to obtain
would not individually or in the aggregate have a Material Adverse
Effect.
6.3. Due Diligence
The Purchaser has conducted a due diligence review of Aavid Germany and
the Companies and, as of the date of this Agreement, is unaware of any
facts that are inconsistent with the warranties and representations of
the Seller contained in Article 5 hereof.
6.4. Brokers
Except for the obligations owed by the Purchaser to Blitzer Xxxxxxxxx &
Company, Purchaser has not (i) incurred any obligation or liability,
contingent or otherwise, for
30
brokers' or finders' fees or commissions in connection with the
transactions contemplated by this Agreement which could be payable by
Purchaser; or (ii) made any statement or representation or entered into
any discussion which could give rise to any such obligation or
liability. Purchaser shall be solely responsible for the payment of all
obligations owed by it to Blitzer Xxxxxxxxx & Company.
7. CLOSING CONDITIONS
7.1. Conditions to Seller's Obligations to Close
The obligation of the Seller to consummate the transactions contemplated
hereby at the Closing is subject to the fulfillment to the satisfaction
of the Seller, or the waiver by the Seller, at or prior to the Closing
of each of the following conditions:
7.1.1. Each of the representations and warranties of the Purchaser
contained in Article 6 shall be true, correct and complete on
and as of the Closing Date as though then made.
7.1.2. All covenants, agreements and conditions contained in this
Agreement to be performed or complied with by the Purchaser on
or prior to the Closing Date shall have been performed or
complied with.
7.1.3. On or prior to the Closing Date, the Purchaser shall execute a
written instrument of assumption of the guarantee and
indemnification obligations for the subsidies provided by German
government agencies for the Property occupied by Curamik in
Eschenbach, Germany (the "Eschenbach Property") in the form as
annexed hereto as Exhibit D.
7.2. Conditions to the Obligations of Purchaser to Close
The obligation of the Purchaser to consummate the transactions
contemplated hereby at the Closing is subject to the fulfillment to the
satisfaction of Purchaser, or the waiver by them, at or prior to the
Closing of each of the following conditions:
7.2.1. Each of the Warranties contained in Article 5 shall be true,
correct and complete on and as of the Closing Date as though
then made, provided, HOWEVER, that if any of such Warranties
shall not be true, correct and complete on and as of the Closing
Date, such untrue, incorrect or incomplete Warranty or
Warranties shall not have, individually or in the aggregate, a
Material Adverse Effect.
7.2.2. All covenants, agreements and conditions contained in this
Agreement to be performed or complied with by each of the
members of the Seller Group on or prior to the Closing Date
shall have been performed or complied with in all material
respects.
7.2.3. On or prior to the Closing Date, all filings, registrations,
approvals, notifications etc that any member of the Seller Group
shall be required by
31
law to have in order to consummate the transfer of the Shares to
the Purchaser, and to consummate the transactions contemplated
by this Agreement shall have been duly obtained by the
appropriate member of the Seller Group and shall be effective on
and as of the Closing Date.
7.2.4. On the Closing Date, Curamik shall have cash on hand in the
aggregate amount of Euro894,000 which shall remain with, and
shall not be transferred from, Curamik through the consummation
at the Closing of the transactions contemplated herein and
hereby.
7.2.5. On the Closing Date, Seller shall have delivered the Net Assets
Certificate to the Purchaser.
7.2.6. There shall have been (a) no Material Pre-Closing Claim; (b) no
Material Adverse Effect upon the assets, business, operations,
employee relations, customer or supplier relations, operating
results, prospects or condition (financial or otherwise) of the
Companies taken as a whole and (c) no material adverse Federal
or state legislative or regulatory change affecting the
respective businesses, products or services of the Companies
taken as a whole.
8. INDEMNIFICATION - GENERAL
8.1. Breach of the Warranties
8.1.1. If and to the extent any of the representations and warranties
set forth in Article 5 is incorrect or not complied with, the
legal consequences set forth in this Article 8 shall apply. The
Parties acknowledge that the legal consequences set forth in
this Article 8, the representations and warranties set forth in
Article 5 and the commercial, governmental and contractual
liabilities set forth in Section 8.2 are homogeneous with and an
inseparable part of, this Agreement.
(a) If any of the representations and warranties set forth in
Article 5 is incorrect or not complied with, or if Seller shall
become liable with respect to any of the commercial,
governmental and contractual liabilities set forth in Section
8.2, then Purchaser shall not be entitled to
(i) rescind this Agreement in accordance with Sections 437
para 2, 440, 323 and 326 para 5 of the German Civil Code
("Rucktritt").
(ii) ask for completion or repetition of performance in
accordance with Sections 437 para 1 and 439 of the
German Civil Code ("Nachbesserung" or "Nacherfullung").
Also, Seller shall not be entitled to conduct such
completion or repetition of performance.
32
(iii) to claim for damages instead of full performance
according to Sections 437 para 3, 440, 280, 281, and 311
a German Civil Code ("Schadensersatz statt der ganzen
Leistung").
(b) In case of any Seller's negligence prior to execution of this
Agreement, Purchaser's rights according to Section 311 para 2 of
the German Civil Code ("culpa in contrahendo") shall be limited
to claims for damages. The Purchaser waives any right to rescind
this Agreement ("Rucktritt") or claim for adjustment of the
Agreement ("Vertragsanpassung").
(c) The rights excluded by Sections 8.1.1 (a) and (b) are, to the
extent legally possible, waived by Purchaser and Seller.
(d) If any of the representations and warranties set forth in
Article 5 is incorrect or not complied with, or if Seller shall
become liable with respect to any of the commercial,
governmental and contractual liabilities set forth in Section
8.2, then Purchaser shall be entitled to
(i) reduce the purchase price in accordance with Sections
437 para 2 and 441 of the German Civil Code
("Minderung") and to ask for repayment of the purchase
price which shall be calculated in accordance with
Section 8.1.1. (f) and limited in accordance with
Section 8.5; or
(ii) damages, excluding damages instead of full performance
("Schadensersatz statt der ganzen Leistung").
(e) Wherever and to the extent that in this Agreement
representations and warranties are given by the Seller "to the
best of the Seller's knowledge" or "so far as the Seller is
aware" Purchaser waives the right to claim for reduction of the
purchase price in accordance with Sections 437 para 2 and 441 of
the German Civil Code ("Minderung"). Purchaser's rights shall
then be limited to claim for damages exclusively, excluding
damages instead of full performance ("Schadensersatz statt der
ganzen Leistung") according to Section 8.1.1. (d) (ii). The
Parties agree that Seller's breach of such representations and
warranties only shall be deemed as negligent according to
Section 280 para 1 German Civil Code if Seller did not comply
with Section 1.2 (c) of this Agreement. The Seller shall have
the burden of proof to have complied with its duties according
to Section 1.2 (c). Seller's liability and its duty to
investigate the correctness of such given representations and
warranties shall be limited to the scope of "to the best of the
Seller's knowledge" as described in Section 1.2 (c).
(f) Purchaser's claims for damages may include all costs or losses
according to Sections 249 following of the German Civil Code
("xx.xx. 249 ff BGB") that will be necessary to put Purchaser
or, at the Purchaser's option, whichever of the Companies shall
be affected, into the position it would have been in if the
respective representation and warranty had been correct or had
been complied
33
with, including the compensation of any damages, cost, loss or
expense incurred by the affected company or the Purchaser as the
case may be.
8.1.2. Purchaser shall notify Seller of an asserted claim for reduction
of the Purchase price under this Section 8 within 90 days of its
discovery of the material facts. Such notice shall specify the
particulars of the claim. In the event that the Seller disputes
the Purchaser's claim, such dispute shall be resolved in
accordance with the provisions of Article 12 hereof.
8.1.3. The provisions of Articles 5 and 8 shall survive the execution,
delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby.
8.2. Commercial, Governmental and Contractual Liabilities
8.2.1. The Seller shall indemnify and hold harmless the Purchaser, any
Affiliate of the Purchaser, as well as Aavid Germany and each of
the Companies (collectively, the "Indemnitees") with respect to
89.4% of any and all loss, claim or damage (together with all of
the Indemnitees' respective reasonable counsel fees pertaining
thereto) that any of the Indemnitees may suffer as a result of
or with respect to:
(a) the exercise of any put or call option applying to any shares of
Curamik not held by Aavid Germany, Xx. Xxxxx or Xx. Xxxxxx-Xxxxxx, and
existing prior to the Closing, the exercise of any rights that the
holder of any such option may possess and the demand by the holder of
any such option may make regarding the performance of any obligations
that any member of the Seller Group may owe pursuant to any such option;
(b) the ownership prior to the Closing by any member of the Seller Group
of (a) a limited partnership interest in Sario GmbH & Co KG; and (b)
shares of and/or a share capital interest in Sario
Grundstucks-Vermietungsgesellschaft mbH;
(c) any claims, actions or proceedings alleging infringement by, seeking
payment of damages from and/or requesting injunctive relief against any
of the Indemnitees which shall be asserted by (a) any of the holders of
US patent nos. 5423376 and 4483810, European patent nos. 0611235 and
0000000, Japanese patent no. 00000000 and French patent no. 9301870; and
(b) any third party asserting rights against any of the Indemnitees on
the basis of the aforementioned patents, so long as the use of the
aforementioned patents is consistent with the past practices of Aavid
Germany and the Companies;
(d) any claims, actions or proceedings resulting from events,
transactions or occurrences prior to the Closing alleging (a)
non-compliance with Environmental Permit requirements; (b) violation of
emission and discharge limits or other restrictions set forth in any
license, permit or other authorization granted to any of the Companies
under any applicable law including any Environmental Law or
34
Environmental Permit; (c) non-compliance with Environmental Laws
regarding the treatment, storage transportation or any other handling of
waste; or (d) contamination of soil, soil gas or groundwater;
(e) the transport prior to the Closing of any caustic solution to BECE
Leiterplatten-Chemie GmbH including, but not limited to, any claims,
actions or proceedings alleging violation of applicable waste
transportation laws and regulations resulting from the transport
thereof;
(f) violations prior to the Closing of workers' health and/or safety
laws, regulations, rules and standards disclosed in Schedule 5.21.15
hereto;
(g) any increase of redundancy payments, as a result of events prior to
the Closing, beyond the level common in the industry by the provisions
of any social plan concluded between the management and the works
council of Curamik concerning redundancies; and
(h) the requalification of freelancers, individuals holding service
agreements other contractual partners of Aavid Germany or any of the
Companies as of the Closing as employees thereof including, but not
limited to, any liability for the payment of any Taxes and/or Social
Security Contributions for any period up to the next termination date
for the freelance or other agreements of such individuals.
8.3. Environmental Remediation Liabilities
The parties agree that Seller shall cause Curamik to engage the services
of a reputable environmental engineering firm, subject to the approval
of the Purchaser, which such approval shall not be unreasonably withheld
of delayed, to conduct Phase I and Phase II environmental site
assessments of the Eschenbach Property. Purchaser shall pay the
reasonable fees and expenses of such engineering firm in performing such
site assessments. Such site assessments shall be conducted as soon after
the execution of this Agreement as is reasonably possible. Prior to
commencement of the site assessments, the Parties will agree upon the
scope thereof which shall include, but may not be limited to, a
determination of the existence or presence of any contamination of soil,
gas, water and ground water, buildings and installations as well as the
compliance with legal requirements, permits and environmental
agreements. Neither of the Parties shall unreasonably delay or withhold
its agreement to the determination of such scope. In the event that
either of the site assessment reports issued by said engineering firm
upon completion of such site assessments reveals or establishes that (a)
any of the warranties or representations contained in Section 5.22 is
untrue; (b) any Hazardous Material is present at, on, within or beneath
the land and buildings comprising the Eschenbach Property in
concentrations that are in excess of permissible levels established by
the relevant governmental authorities; (c) any provision of any
Environmental Law has been violated by reason of the existence or
presence of any impermissible substance or condition at, on, within or
beneath the land and buildings comprising the Eschenbach Property;
and/or (d) any provision, requirement or condition pertaining to any
Environmental Permit held by
35
Curamik with respect to the Eschenbach Property has been violated,
Seller shall either reimburse Purchaser or Curamik for all fees, costs
and expenses that either of them shall reasonably incur in connection
with the repair, remediation and elimination of all Environmental
Liabilities resulting therefrom, or Seller shall engage the services of
all persons reasonably required to effectuate the repair, remediation
and elimination of such Environmental Liabilities, and shall pay all
fees, costs and expenses pertaining thereto directly. Upon completion of
all work at the Eschenbach Property that shall be required in order to
repair, remediate and eliminate of all Environmental Liabilities
revealed or established by said reports, the Seller shall undertake and
pay for such further site assessments as shall be necessary and
appropriate to establish that the Eschenbach Property is in full
compliance with all applicable Environmental Laws and Environmental
Permits, and shall pay the reasonable fees and expenses of the attorneys
and other advisors that Curamik or Purchaser shall engage in order to
obtain appropriate findings, pronouncements, orders and approvals of the
relevant governmental authorities regarding such compliance.
8.4. Seller's Liability
Subject to the limitations and conditions set forth in this Article 8,
the Seller shall be liable for any breach of the Warranties set forth in
Article 5, the commercial, governmental and contractual liabilities set
forth in Section 8.2 and the environmental remediation liabilities set
forth in Section 8.3.
8.5. Limitation of Seller's Liability
8.5.1. The liability of the Seller shall be limited as follows:
(a) Seller shall have no liability in respect of any breach or breaches
of the Warranties set forth in Article 5 and/or the commercial,
governmental and contractual liabilities set forth in Section 8.2 unless
89.4% of the aggregate amount of the liability in respect of all
Eligible Claims exceeds the sum of Euro200,000 in which case (subject to
the other provisions of this Section 8.5.1) Seller shall be liable for
the payment of the aggregate amount thereof.
(b) Seller's liability for any breach or breaches of any of the
warranties and representations set forth in Section 5.4, Seller's
obligations pursuant to Section 8.3 hereof and/or either of the Ixys and
Ferraz Claims shall not exceed, in the aggregate, the Purchase Price.
(c) Except as otherwise provided in Section 8.5.1(b), Seller's liability
for any breach or breaches of the Warranties set forth in Article 5
and/or the commercial, governmental and contractual liabilities set
forth in Section 8.2 shall not exceed, in the aggregate, Euro3,200,000.
(d) Liability in respect of the Warranties shall terminate:
36
(i) in respect of matters contained in Section 5.4 (Title),
six months after the date the respective statute of
limitation for such matters expires;
(ii) in respect of matters contained in Section 5.12
(Intellectual Property Rights), the second anniversary
of the Closing Date;
(iii) in respect of matters contained in Section 5.22
(Environmental), ten days after Purchaser's receipt of
the Phase I and Phase II environmental site assessments
referred to in Section 8.3 hereof if such assessments
reveal that no Environmental Liabilities exist,
otherwise on the 30th day after the earlier of the date
all appropriate findings, pronouncements, orders and
approvals of the relevant governmental authorities
establishing that the Eschenbach Property is in
compliance in all material respects with all applicable
Environmental Laws and Environmental Permits have been
issued or the date that Purchaser ceases to diligently
seek to obtain any such findings, pronouncements, orders
and approvals.
(iv) in respect of matters contained in Section 5.25 (Tax)
six months after the date the respective statute of
limitations for such matters runs, or six months after
the final assessment of any Taxes following a tax audit
(Betriebsprufung) for the respective Tax and the
respective period, whichever first occurs; and
(v) on December 31, 2003 in respect of all others matters
contained in Article 5; except in respect of any claim
of which notice, as provided in Section 8.1.3, is given
to the Seller before that date.
(e) Liability in respect of commercial, governmental and contractual
liabilities set forth in Section 8.2 shall terminate six months after
the date the respective statute of limitation for the relevant matter
expires.
(f) The Seller shall not be obligated to pay any amount in respect of
the matter giving rise to a claim of liability to the extent (i) any
specific allowance, provision or reserve is made with respect thereto in
the Accounts; or (ii) that any recovery is made by Aavid Germany or
either of the Companies with respect thereto pursuant to any claim made
under any policy of insurance.
8.5.2. If any deficiency, damage, cost, loss or expense incurred by any
of the Companies or the Purchaser, as the case may be, in
respect of the breach of any of the Warranties generates a Tax
credit, loss or deduction with respect thereto for any of the
Companies, the amount of the reduction of the Purchase Price or
the indemnity to be paid by the Seller shall be reduced by an
amount equal to the actual reduction in Tax that the Companies
shall be entitled to receive.
8.6. Purchaser's Liability
37
Purchaser shall indemnify and hold Seller harmless with respect to any
loss or damage (including Seller's reasonable counsel fees) that Seller
may suffer or incur in the event that Purchaser fails to obtain, within
90 days after the Closing Date, any authorizations, consents, approvals
or permits of any Governmental Entity that the Purchaser shall be
required by law to have in order to consummate the transactions
contemplated by this Agreement.
9. NOTICES
9.1. All notices and other communications hereunder shall be in writing and
shall be deemed given if sent by facsimile transmission (if receipt is
electronically confirmed) or by a prepaid overnight courier service (if
receipt is confirmed in writing) addressed to the Parties at the
following addresses (or at such other address for a Party as shall be
specified by like notice):
(a) In the case of the Seller:
Aavid Thermal Technologies, Inc.
Xxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxx Xxxxxxxxx 00000
Attention: President
Facsimile: x0 000 000 0000
with a copy to
Faegre Xxxxxx Xxxxxxx
Rechtsanwaelte
Xxxxxxx-Xxxxx-Xxxxx 000
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Attention: Xxxxx Xxxxxx
Facsimile: x00 00 000000 00
(b) In the case of the Purchaser:
Electrovac Fabrikation Electrotechnischer Spezialartikel GesmbH
Xxxxxxxxxxx 00-00
0000 Xxxxxxxxxxxxxx
Xxxxxxx
Attention: President
Facsimile: + 43 2243 450 698
with a copy to
Hall Xxxxxxx Xxxx Xxxxxxxxx & Xxxx, LLP
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX
38
Attention: Xxxxxx X. Xxxxxx
Facsimile: x0 000 000 0000
10. TERMINATION; TERMINATION FEE
10.1. Termination.
This Agreement may be terminated by written notice by the terminating
party to the other Party:
10.1.1. by the mutual written consent of Purchaser and Seller;
10.1.2. by Purchaser, if the Seller shall have breached or failed to
perform in any respect any of its representations or warranties
required to be performed by it under this Agreement (other than
breaches that individually or in the aggregate would not
materially impair the ability of the Parties to perform on a
timely basis their respective obligations under this Agreement
or the consummation of the transactions contemplated herein and
hereby), and such breach or failure to perform has continued
unremedied for ten business days following notice of such breach
to Seller by the Purchaser;
10.1.3. by the Seller, if Purchaser shall have breached or failed to
perform in any respect any of its Warranties required to be
performed by it under this Agreement (other than breaches that
individually or in the aggregate would not materially impair the
ability of the Parties to perform on a timely basis their
respective obligations under this Agreement or the consummation
of the transactions contemplated herein and hereby), and such
breach or failure to perform has continued unremedied for ten
business days following notice of such breach to Purchaser by
the Seller; and
10.1.4. by the Seller on, or at any time after July 17, 2002 in the
event that no Closing occurs on or before such date, and
Purchaser fails to obtain, on or before July 10, 2002, the
financing commitments that Purchaser shall require in order to
pay the Purchase Price.
10.2. Effect of Termination
In the event of termination of this Agreement as provided in Section
10.1, this Agreement, upon Delivery of the Deposit by the Escrow Agent
pursuant to the applicable provisions of Section 10.3, shall immediately
become void and there shall be no liability or obligation on the part of
Purchaser or the Seller or their respective officers, directors,
shareholders or affiliates, except as set forth in Section 10.3 below;
provided, however, that the provisions of Sections 10.2 and 10.3 of this
Agreement shall remain in full force and effect and survive any
termination of this Agreement.
10.3. Termination Fee
39
10.3.1. Upon execution of this Agreement, the Purchaser shall deliver
the sum of USD 250,000 (the "Deposit") to Xxxx Xxxxxxxx, Esq.,
counsel for the Seller (the "Escrow Agent"), who shall hold the
deposit in escrow in an interest bearing account and dispose of
same pursuant to the provisions of this Agreement.
10.3.2. Upon the Closing of the transactions contemplated herein and
hereby, the Escrow Agent shall deliver the Deposit, together
with all interest which shall have accrued thereon, to the
Seller, and the amount thereof shall be credited by the Seller
as a partial payment of the Purchase Price by the Purchaser.
10.3.3. In the event that this Agreement (a) is terminated by the Seller
pursuant to Section 10.1.4, or (b) fails to close for reasons
(i) solely caused by the Purchaser, or (ii) solely attributable
to the Purchaser including, but not limited to, Purchaser's
breach of any warranty or representation contained in Article 6
hereof, or inability to obtain financing in such aggregate
amount as it shall require in order to pay the Purchase Price,
the Escrow Agent shall deliver the Deposit, together with all
interest which shall have accrued thereon, to the Seller, and
this Agreement shall thereupon terminate without further
liability or obligation on the part of any part to the other.
10.4. In the event that this Agreement fails to close for reasons which are
(i) solely caused by the Seller, or (ii) solely attributable to the
Seller, the Escrow Agent shall deliver the Deposit, together with all
interest which shall have accrued thereon, to the Purchaser, and this
Agreement shall thereupon terminate without further liability or
obligation on the part of any part to the other.
11. MISCELLANEOUS
11.1. This Agreement, including the Schedules hereof and the Exhibits hereto,
and the documents referred to herein which form a part hereof, contain
the entire agreement of the Parties hereto with respect to the subject
matter contained herein and therein. All prior negotiations and
agreements between the Parties hereto with respect to the transactions
provided for herein are superseded by this Agreement.
11.2. No waiver of any of the provisions of this Agreement shall be effective
against any party to this Agreement unless reduced in writing and duly
signed by such Party. The waiver by any Party of any right hereunder or
of any breach of any of the terms hereof or defaults hereunder shall not
be deemed a waiver of any other rights or any subsequent breach or
default, whether of the same or of a similar nature, and shall not in
any way affect the terms hereof except to the extent of such waiver.
11.3. This Agreement can not be amended or modified unless made in writing and
duly signed by or on behalf of the Seller and the Purchaser. The
provisions of the immediately preceding sentence shall not apply to the
extent that a notarial recording of any amendment or modification may be
required in connection with the consummation of the
40
transactions contemplated hereby. In such event, the required amendment
or modification shall be notarially recorded.
11.4. If any provision of this Agreement is or becomes illegal, invalid or
unenforceable that shall not affect the validity or enforceability of
any other provisions of this Agreement.
11.5. This Agreement may not be transferred, assigned, pledged or hypothecated
by any Party hereto, other than by operation of law, except that the
Purchaser may assign this Agreement to any of its affiliates. This
Agreement shall be binding upon and shall inure to the benefit of the
Parties hereto and their respective successors and assignees.
11.6. Except as otherwise expressly provided in this Agreement, each Party
shall pay its own and its own advisers' fees and expenses (including
financial and legal advisors) incurred in connection with the
negotiation, execution and closing of this Agreement or the transactions
contemplated herein, and the Seller shall bear the fees and expenses of
Aavid Germany and the Companies incurred in connection with the
negotiation, execution and closing of this Agreement.
11.7. Neither the Purchaser nor any of the members of Seller Group, or any of
their respective directors, officers or employees, shall make any
disclosure regarding the terms or conditions of this Agreement or the
transfer and sale of the Shares to Purchaser without each Party's prior
written consent, which consent shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, the Seller shall be entitled to
make such disclosures about this Agreement and the transactions
contemplated hereby as it may be obligated to make in accordance with
the applicable provisions of the United States Securities Exchange Act
of 1934 and the regulations promulgated thereunder.
11.8. No failure or delay on the part of any Party hereto in the exercise of
any right hereunder shall impair such right or be construed to be a
waiver of, or acquiescence in, any breach of any representation,
warranty or agreement herein, nor shall any single or partial exercise
of any such right preclude other or further exercise thereof or of any
other right.
11.9. This Agreement may be executed in any number of counterparts, each of
which will be considered an original instrument, but all of which
together will be considered one and the same agreement, and will become
binding when one or more counterparts have been signed by and delivered
to each of the Parties.
12. GOVERNING LAW AND DISPUTES
12.1. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Federal Republic of Germany excluding
the conflicts of laws provisions thereof and the provisions of the CISG.
12.2. Any dispute, controversy or claim arising out of or in connection with
this Agreement, or the breach, termination or invalidity thereof, shall
be exclusively settled by arbitration in accordance with the arbitration
rules of the DIS e.V. The arbitral tribunal shall be composed of three
arbitrators. The place of arbitration including the making of the award
shall be Frankfurt am Main, Germany. The language to be used in the
arbitral
41
proceedings, and in all documents and submissions made to the arbitral
tribunal, shall be English. Each party to the arbitral proceedings shall
be responsible for its, his or her own and its, his or her own advisers'
fees and expenses (including financial and legal advisors), PROVIDED,
HOWEVER, that each of the parties to such proceedings shall pay their
respective pro rata shares of the fees and other charges imposed by the
administrator of such proceedings.
This deed including Exhibit B was read aloud by in presence of the
Notary Public to and approved by the persons appearing and signed by
them and the Notary Public in their own hands as follows:
EXHIBIT A
ACCOUNTS
--------
2
EXHIBIT B
to
DEED-NO.___________________/2002
SHARE TRANSFER AGREEMENT
I. RECITALS
The Seller holds in the stated capital of
AAVID THERMALLOY GERMANY HOLDINGS GMBH
- COMPANY -
with its registered seat in Eschenbach/oberpfalz, business address:
Xx Xxxxxxxxx 0
00000 Xxxxxxxxxx,
Xxxxxxxxxxx/Xxxxxxx
registered in the Commercial Register of the Weiden in der Oberpfalz Local Court
under
HRB 2253
in the nominal amount of Euro 25,000.--(Euro twenty five thousand) one share in
the nominal amount of Euro 25,000.-- (Euro twenty five thousand).
The share is fully paid in.
II. SALE AND ASSIGNMENT
Subject to the condition precedent
3
that all Closing Conditions contained in Section 7 of the Share Sale and
Purchase Agreement are fulfilled the Seller hereby assigns his aforementioned
share to the Purchaser who hereby accepts the assignment. The condition
precedent shall be deemed to be fulfilled as soon as the Parties exchange the
following confirmations:
"The Seller/Purchaser herewith confirms that the condition precedent subject to
which the assignment of the sole share in Aavid Thermalloy Germany Holdings GmbH
was notarized on July 11, 2002 (UR-Nr. _________/2002 by Notary Public Xx. Xxxxx
Xxxxxxxx, Passau), is fulfilled and the transfer of the mentioned share
therewith has become effective. The fulfillment of other eventually existing
conditions precedent is herewith waived."
The aforementioned confirmations have to be sent to the Notary Public
respectively by the receiving Party without undue delay after receipt.
III. WARRANTIES
The Seller warrants that his share described in the Recitals hereinabove is
legally existing, that the share is not encumbered with any rights of third
parties and that the capital contribution is fully paid in and not reimbursed at
any time.
4
IV. PROFIT RIGHTS
The dividend rights for the current business year and all undistributed profits
shall accrue to the Purchaser.
X. XXXXXX, ABSCHRIFTEN/COSTS, COPIES
Separate certified copies of this Exhibit B, i.e. of the Share Transfer
Agreement contained therein shall be forwarded to:
- the Company as notification in accordance with sec. 16 GmbHG (German Act
on Companies with Limited Liability),
- the person appearing,
- the tax authority competent for the Company,
- the Commercial Register.
The persons appearing declare that the relevant text for the certification of
this deed shall be the German text. In case of a different interpretation of the
German and English text, the German text shall therefore prevail.
5
EXHIBIT C
ARTICLES OF ASSOCIATION OF AAVID GERMANY AND THE COMPANIES
----------------------------------------------------------
6
EXHIBIT D
FORM OF ASSUMPTION OF SUBSIDY OBLIGATIONS
-----------------------------------------
Electrovac Fabrikation Electrotechnischer Spezialartikel GesmbH ("Purchaser") as
Purchaser of all Shares in Aavid Thermalloy Germany Holdings GmbH hereby
undertakes to assume all guarantee and indemnification obligations from Aavid
Thermal Technologies, Inc. ("Seller") directly or indirectly related to the
contingent repayment obligation of curamik electronics GmbH in connection with
the subsidy granted by the State of Bavaria (represented by the Regierung
Oberpfalz) in the amount of DM 1,990,000 (reference no. ("Aktenzeichen")
300.1.-3079-15/95) within 30 days from the date of this Agreement at the latest
and will indemnify the Seller from and against any obligations, cost or expenses
it may suffer from the above obligations.
--------------, -------------
Place Date
-----------------------------------
Electrovac Fabrikation
Elektrotechnischer Spezialartikel GesmbH
