Delaware | 000-23441 | 94-3065014 |
(State or other jurisdiction | (Commission | (IRS Employer |
of incorporation) | File Number) | Identification No.) |
Exhibit Number | Description | |
2.01. | Share Purchase Agreement, dated as of March 30, 2012, by and among Power Integrations Netherlands B.V., Power Integrations Limited and Heinz Rüedi.* |
Power Integrations, Inc. | |||||
By: | /s/ Sandeep Nayyar | ||||
Name: | Sandeep Nayyar | ||||
Title: | Chief Financial Officer | ||||
Exhibit Number | Description | ||
2.01. | Share Purchase Agreement, dated as of March 30, 2012, by and among Power Integrations Netherlands B.V., Power Integrations Limited and Heinz Rüedi.* |
Exhibit 2.01 | ||||
EXECUTION COPY |
1 | Definitions | 6 | ||||
2 | Object of Sale and Purchase | 6 | ||||
3 | Purchase Price | 6 | ||||
3.1. | Calculation of Purchase Price | 6 | ||||
3.2. | Determination of Closing Net Asset Value, Final Adjustment and Payment of Final Adjustment | 6 | ||||
3.2.1. | Determination of Closing Net Asset Value | 6 | ||||
3.2.2. | Determination of Final Adjustment | 6 | ||||
3.2.3. | Payment of Final Adjustment | 7 | ||||
3.3. | No Set-Off | 7 | ||||
3.4. | Escrow | 7 | ||||
3.4.1. | Establishment of Escrow Account | 7 | ||||
3.4.2. | Payment into Escrow | 7 | ||||
4 | Actions before Closing | 7 | ||||
4.1. | General | 7 | ||||
4.2. | Filings and Submissions | 7 | ||||
4.3. | Conduct of Business | 8 | ||||
4.3.1. | General | 8 | ||||
4.3.2. | Access to the Group | 8 | ||||
4.3.3. | Restricted Actions | 8 | ||||
4.4. | Seller's Personal Debt Amount | 9 | ||||
4.5. | Designation of Bank Accounts | 9 | ||||
4.6. | Closing Memorandum | 9 | ||||
5 | Conditions Precedent to Closing | 9 | ||||
5.1. | Conditions Precedent to Obligations of Each Party | 9 | ||||
5.2. | Conditions Precedent to the Obligations of the Buyer and the Co-Obligor | 10 | ||||
5.3. | Conditions Precedent to the Obligations of the Seller | 10 | ||||
5.4. | Waiver of Conditions Precedent | 10 | ||||
5.5. | Right of Termination | 11 | ||||
6 | Closing | 11 | ||||
6.1. | Place and Date of Closing | 11 | ||||
6.2. | Actions by the Seller | 11 | ||||
6.3. | Actions by the Buyer | 12 | ||||
7 | Representations and Warranties | 12 | ||||
7.1. | Representations and Warranties of the Seller | 12 | ||||
7.2. | Representations and Warranties of the Buyer | 12 | ||||
7.3. | Representations and Warranties of the Co-Obligor | 12 | ||||
7.4. | No other Representations and Warranties | 12 | ||||
8 | Remedies | 12 | ||||
8.1. | Remedy of the Buyer | 12 | ||||
8.1.1. | Notice of Breach (Rüge) | 12 |
8.1.2. | Seller's Right to Cure | 13 | ||||
8.1.3. | Seller's Liability | 13 | ||||
8.1.4. | Time Limitations (Verjährung) on and Forfeiture (Verwirkung) of Claims | 13 | ||||
8.1.5. | Limitations on Liability | 14 | ||||
8.1.6. | Third Party Claims | 15 | ||||
8.2. | Remedy of the Seller | 15 | ||||
8.3. | Remedies Exclusive, Fraud or Wilful Misrepresentation | 15 | ||||
9 | Covenants | 15 | ||||
9.1. | [*] | 15 | ||||
9.2. | Press Releases and Other Public Announcements | 15 | ||||
9.3. | No Claims against Directors and Officers | 15 | ||||
9.4. | Confidentiality | 16 | ||||
9.5. | Non-Compete | 16 | ||||
9.5.1. | Scope of Non-Compete Obligation | 16 | ||||
9.5.2. | Definitions; Remedies | 17 | ||||
10 | Cumulative Assumption of the Buyer's Obligations | 17 | ||||
11 | Taxes, Costs, Expenses and Interest | 17 | ||||
11.1. | Taxes | 17 | ||||
11.2. | Costs and Expenses | 18 | ||||
11.3. | Interest | 18 | ||||
12 | Miscellaneous | 18 | ||||
12.1. | Effect on Third Parties | 18 | ||||
12.2. | Notices | 18 | ||||
12.3. | Entire Agreement | 19 | ||||
12.4. | Amendments and Waivers | 20 | ||||
12.5. | No Assignment | 20 | ||||
12.6. | Severability | 20 | ||||
13 | Governing Law and Jurisdiction | 20 | ||||
13.1. | Governing Law | 20 | ||||
13.2. | Arbitration | 20 | ||||
13.3. | Construction | 20 |
Annex | Title |
Annex (c) | Subsidiaries |
Annex 1 | Definitions |
Annex 3.2.1(1) | Computation of Closing Net Asset Value |
Annex 3.2.1(2) | Establishment of Final Accounts and Final Adjustment |
Annex 3.2.1(3) | Computation of Yardstick Net Asset Value |
Annex 3.4.1 | Form of Escrow Agreement |
Annex 5.2(e) | Carved-Out Assets and Carve-Out Consideration |
Annex 6.2(f) | Form of Termination Agreements |
Annex 6.2(i) | Form of Seller's Release |
Annex 6.2(j)(i) | Form of Key Employees' Release |
Annex 6.2(j)(ii) | List of Key Employees |
Annex 7.1 | Representations and Warranties of the Seller |
Annex 7.1(g)(i) | Registered Intellectual Property Rights |
Annex 7.2 | Representations and Warranties of the Buyer |
Annex 7.3 | Representations and Warranties of the Co-Obligor |
Annex 8.1.3 | Special Indemnity Items |
Annex 8.1.5(c)(i) | Data Room Index |
Annex 8.1.5(c)(ii) | Disclosure Letter |
(a) | Concept Beteiligungen AG (the “Company”) is a corporation organized and existing under the laws of Switzerland with its registered seat in Zug, Switzerland, with a nominal share capital of CHF 100'000 divided into1'000 bearer with a nominal value of CHF 100 each (the “CB-Shares”). |
(b) | CT-Concept Holding AG (“CT Holding”) is a corporation organized and existing under the laws of Switzerland with its registered seat in Biel, Switzerland, with a nominal share capital of CHF 100'000 divided into 100 registered shares with a nominal value of CHF 1'000 each (the “CTH-Shares”). |
(c) | As of the date of this Agreement, the Company directly or indirectly owns the shares in the subsidiaries as set forth in Annex (c) (the Company together with such subsidiaries, the “Group”, each of them a “Group Company” and together the “Group Companies”). |
(d) | As of the date of this Agreement, the Seller is: |
(i) | the direct owner of 100% of the CB-Shares |
(ii) | the direct owner of 10% of the CTH-Shares |
(e) | The Seller intends to sell the Shares to the Buyer and the Buyer intends to buy the Shares from the Seller pursuant to the terms of this Agreement. |
(f) | The Co-Obligor intends to accede to this Agreement in terms of a cumulative assumption of the obligations (kumulative Schuldübernahme) imposed on the Buyer. |
(g) | Before executing this Agreement, the Buyer conducted a comprehensive due diligence investigation and reviewed, inter alia, the Disclosure Information (as hereinafter defined). |
1. | Definitions |
2. | Object of Sale and Purchase |
3. | Purchase Price |
3.1. | Calculation of Purchase Price |
(a) | CHF 116,300,000.00 (the “Preliminary Purchase Price”); plus or minus |
(b) | the Final Adjustment determined in accordance with Section 3.2.2. |
3.2. | Determination of Closing Net Asset Value, Final Adjustment and Payment of Final Adjustment |
3.2.1 | Determination of Closing Net Asset ValueThe Closing Net Asset Value shall be computed in accordance with Annex 3.2.1(1) and Annex 3.2.1(2). |
3.2.2 | Determination of Final Adjustment |
(a) | If the Closing Net Asset Value is greater than the Yardstick Net Asset Value, the Preliminary Purchase Price shall be increased by the amount of such excess, and the Buyer shall, subject to |
(b) | If the Closing Net Asset Value is less than the Yardstick Net Asset Value, the Preliminary Purchase Price shall be decreased by the amount of such shortfall, and the Seller shall, subject to and in accordance with Section 3.2.3 pay to the Buyer the lesser of (i) the amount of such shortfall or (ii) CHF 7,000,000.00. |
3.2.3 | Payment of Final Adjustment |
3.3. | No Set-Off |
3.4. | Escrow |
3.4.1. | Establishment of Escrow Account |
3.4.2. | Payment into Escrow |
4. | Actions before Closing |
4.1. | General |
(a) | the Conditions Precedent to be satisfied on or before the Closing Date (provided, however, that notwithstanding anything to the contrary herein the Buyer shall not have any obligation under this Agreement to divest or agree to divest (or cause any of its subsidiaries or any Group Company to divest or agree to divest) any of its respective businesses, product lines, assets, or take or agree to take (or cause any of its subsidiaries or any Group Company to agree to take) any other action or to agree (or cause any of its subsidiaries or any Group Company to agree) to any limitation or restriction on any of its respective businesses, product lines or assets); |
(b) | each of its Affiliates to perform all acts necessary to implement the transactions contemplated by this Agreement. |
4.2. | Filings and Submissions |
4.3. | Conduct of Business |
4.3.1. | General |
4.3.2. | Access to the Group |
4.3.3. | Restricted Actions |
(a) | take or fail to take any action which could materially interfere with the consummation of the transactions contemplated under this Agreement; |
(b) | accelerate any order or do any other act that is intended to increase the revenues for the purpose of increasing revenue during certain period or quarter that would not be done otherwise in the ordinary course of business (for example by soliciting customers (by providing financial incentives or otherwise) to make their orders earlier than they intended or by increasing the distributor inventory); |
(c) | take any action that increases the inventory held by distributors of the Group Companies as compared with the inventory held by distributors of the Group Companies as of December 31, 2011; |
(d) | make any material change in the terms (including granting severance) of employment (including termination) of any of its directors, officers or employees other than in the ordinary course of business and consistent with past practice, existing commitments or existing as of the date of this Agreement collective bargaining arrangements or hire any employees with an annual gross salary exceeding CHF 100,000.00, or with a notice period (with respect to termination) exceeding statutory notice periods or providing for severance payments, other than to fill open positions existing as of the date of this Agreement, provided that such newly filled positions can be terminated with a notice period not to exceed statutory notice period and with no severance payments; |
(e) | adopt or amend any employee compensation or benefit plan or amend any compensation, benefit, entitlement, grant or award previously made under any such plan, except as required by law; |
(f) | form, enter into, vary, terminate or withdraw from any material partnership, consortium, joint venture or similar business organization or agreement; |
(g) | make any amendments to its articles of incorporation or organizational regulations; |
(h) | pay out any dividends or other distribution of profit to the Seller; |
(i) | enter into any agreement with the Seller or any of the Seller's Affiliates or any officer, director or employee of a Group Company other than in the ordinary course of business consistent with past practices and not to exceed in the aggregate CHF [*]; |
(j) | issue new shares or transfer any shares that are directly or indirectly held by it or to a third party or transfer any of its material assets to a third party, other than in connection with the performance of commitments in effect as of the date hereof, which are described in the Disclosure Letter; |
(k) | increase, reduce or otherwise change its share capital, or grant any option or conversion rights on the equity of a Group Company other than in connection with the performance of commitments in force as of the date hereof; |
(l) | enter into, increase or extend any liability under any guarantee or indemnity in favour of any third party other than in the ordinary course of business, consistent with past practices and in an aggregate amount not to exceed CHF [*]; |
(m) | make, increase or extend any loan or advance or grant any credit to any third party other than in the ordinary course of business, consistent with past practices and in an aggregate amount not to exceed CHF [*]; |
(n) | grant, create or allow the creation of any Lien over any of its assets other than charges arising by operation of law or otherwise in the ordinary course of business and consistent with past practices; |
(o) | borrow any money or incur any financial indebtedness to a third party in an aggregate amount in excess of CHF [*] or incur any other liabilities other than in the ordinary course of business and consistent with past practice; |
(p) | materially change its accounting procedures, principles or practice in effect at the date of this Agreement; |
(q) | materially change its payment and collection policy for accounts payable and accounts receivable respectively; |
(r) | enter into any contract that would constitute a Material Contract other than in the ordinary course of business and consistent with past practices or other contract that would require consent in connection with the Closing or violate, terminate, amend or modify any Material Contract other than termination, amendment or modification that is done in the ordinary course of business and consistent with past practices; |
(s) | commence or settle a lawsuit other than (i) in connection with the routine collection of bills or (ii) for a breach of this Agreement; |
(t) | acquire or agree to acquire by merging or consolidating with or by purchasing a substantial portion of the assets of any other business, corporation, partnership, association or other business organization or division thereof; |
(u) | make any change or election in respect of Taxes, change any accounting method in respect of Taxes; |
(v) | make any capital expenditures, capital additions or capital improvements in excess of CHF [*] per item or CHF [*] in the aggregate; or |
(w) | agree to make any of the items described above in Section 4.3.3(a) through 4.3.3(v). |
4.4. | Seller's Personal Debt Amount |
4.5. | Designation of Bank Accounts |
4.6. | Closing Memorandum |
5.1. | Conditions Precedent to Obligations of Each Party |
5.2. | Conditions Precedent to the Obligations of the Buyer and the Co-Obligor |
(a) | Representations, Warranties and Covenants. The representations and warranties of the Seller in this Agreement shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality, which representations and warranties as so qualified shall be true and correct in all respects) on and as of the date hereof and on and as of the Closing Date as though such representations and warranties were made on and as of such date (except for representations and warranties which address matters only as to a specified date, which representations and warranties shall be true and correct with respect to such specified date), provided, however, that for purposes of this Section 5.2(a) all updates made or purported to be made following the date of this Agreement shall be disregarded. The Seller shall have performed and complied in all material respects with all covenants, obligations and conditions of this Agreement required to be performed and complied with by the Seller at or prior to the Closing. |
(b) | Receipt of Closing Deliveries. The Buyer shall have received each of the agreements, instruments and other documents set forth in Section 6.2; provided, however, that such receipt shall not be deemed to be an agreement by Buyer that the amounts set forth on any of the agreements, instruments or documents is accurate and shall not diminish the Buyer's remedies hereunder if any of the foregoing is not accurate. |
(c) | No Material Adverse Effect. There shall not have occurred a Material Adverse Effect with respect to the Group. |
(d) | No Outstanding Securities. Other than Shares being acquired hereunder, there shall be no outstanding securities, warrants, options, commitments or agreements of the Company or CT Holding immediately prior to the Closing that purport to obligate the Company or CT Holding to issue any shares of capital stock, options, warrants or any other securities of the Company or CT Holding under any circumstances. |
(e) | All Carve-Out Actions have been duly and validly implemented. |
5.3. | Conditions Precedent to the Obligations of the Seller |
(a) | Representations, Warranties and Covenants. The representations and warranties of the Buyer and the Co-Obligor in this Agreement shall be true and correct in all material respects (except for such representations and warranties that are qualified by their terms by a reference to materiality, which representations and warranties as so qualified shall be true and correct in all respects) on and as of the date hereof and on and as of the Closing Date as though such representations and warranties were made on and as of such date (except for representations and warranties which address matters only as to a specified date, which representations and warranties shall be true and correct with respect to such specified date). The Buyer and the Co-Obligor shall have performed and complied in all material respects with all covenants, obligations and conditions of this Agreement required to be performed and complied with by the Buyer or the Co-Obligor at or prior to the Closing. |
(b) | The Buyer's Payments. The Buyer shall have made the payments as set forth in Section 6.3; provided, however, that the Closing shall not diminish the Seller's remedies hereunder if any of the foregoing amounts have not been paid as set forth in Section 6.3. |
5.4. | Waiver of Conditions Precedent |
(a) | the Seller and the Buyer may jointly waive, in whole or in part, any of the Mutual Conditions Precedent set forth in Section 5.1; |
(b) | the Buyer may waive, in whole or in part, any of the Buyer Conditions Precedent set forth in Section 5.2; and |
(c) | the Seller may waive, in whole or in part, any of the Seller Conditions Precedent set forth in Section5.3. |
5.5. | Right of Termination |
6. | Closing |
6.1. | Place and Date of Closing |
6.2. | Actions by the Seller |
(a) | certificates representing the CB-Shares; |
(b) | certificates representing (i) CTH-Shares held by the Seller, duly endorsed to the Buyer, (ii) CTH-Shares held by the Company and (iii) certificates representing all the issued shares of CT-Concept Technologie AG held by CT-Holding; |
(c) | a resolution of the board of directors of each of the Company and CT Holding unanimously consenting to the transaction contemplated by this Agreement, the transfer of the CTH-Shares from the Seller to the Buyer and the registration of the Buyer as shareholder in CT Holding's shareholders' ledger; |
(d) | CT Holding's shareholders' ledger, duly signed by the board of directors of CT Holdings, evidencing the Buyer's ownership of the CTH-Shares; |
(e) | except as instructed otherwise in writing by the Buyer no later than three Business Days before the Closing Date, the written resignation, effective as of Closing, of each member the board of directors of the Company and each other Group Company; |
(f) | termination agreements , substantially in the forms as set forth in Annex 6.2(f), duly executed by all parties thereto; |
(g) | the Data Room Documents (electronic copies on a disc); |
(h) | [Reserved.] |
(i) | the Seller's Release, substantially in the form of Annex 6.2(i) attached hereto, duly executed by the Seller; |
(j) | a Key Employees' Release, substantially in the form of Annex 6.2(j)(i) attached hereto, duly |
(k) | documents reasonably acceptable to Buyer, evidencing that the Seller duly and validly implemented the Carve-Out Actions; and |
(l) | the Payment Certificate, duly executed by the Seller. |
6.3. | Actions by the Buyer |
(a) | the Preliminary Purchase Price minus the Escrow Amount minus the Carve-Out Consideration minus the Seller's Personal Debt Amount to the Seller; |
(b) | the Escrow Amount to the Escrow Account; |
(c) | the Carve-Out Consideration to CT Holding or CT-Concept Technologie AG, as the case may be (as indicated in Annex 5.2(e)), on behalf of the Seller, in his stead; and |
(d) | the Seller's Personal Debt Amount to the Group Company concerned (as described in the Payment Certificate) on behalf of the Seller, in his stead. |
7. | Representations and Warranties |
7.1. | Representations and Warranties of the Seller |
7.2. | Representations and Warranties of the Buyer |
7.3. | Representations and Warranties of the Co-Obligor |
7.4. | No other Representations and Warranties |
8. | Remedies |
8.1. | Remedy of the Buyer |
8.1.1. | Notice of Breach (Rüge) |
(a) | the date not later than 40 Business Days after the Buyer becoming aware of (i) a misrepresentation or breach of warranty or covenant pursuant to Section 7.1 and that any Damages have been incurred (other than immaterial Damages)or (ii) receipt by the Buyer |
(b) | promptly upon the Buyer becoming aware of any submission to, or a decision or order rendered by any court, arbitral tribunal or governmental or administrative body (including without limitation any taxation authority) which is reasonably likely to result in a claim based upon misrepresentation or the breach of a warranty which the Buyer believes is reasonably likely to give rise to a Damage, but in any event such notice shall be delivered to the Seller early enough so that the Seller has a reasonable opportunity to respond, or to require the Buyer to cause the relevant Group Company respond, to such submission or to submit a timely appeal or other challenge against such decision or order. |
8.1.2. | Seller's Right to Cure |
8.1.3. | Seller's Liability |
8.1.4. | Time Limitations (Verjährung) on and Forfeiture (Verwirkung) of Claims |
(a) | unless otherwise set forth in this Section 8.1.4, before the end of the Escrow Period; |
(b) | with regard to the representations and warranties in paragraph (e) (Taxes) and (m) (Pension Plans and Social Security) of Annex 7.1 before the lapse of a period of 5 years from the Closing Date; and |
(c) | with regard to the representations and warranties in paragraphs (a) (Ownership and Qualification), (b) (Due Authorization) and (r) (Seller Payments) of Annex 7.1 before the lapse of a period of 10 years from the Closing Date. |
8.1.5. | Limitations on Liability |
(a) | Qualifying Claim and Threshold |
(b) | Cap |
(c) | Disclosure Information |
(i) | the documents disclosed to the Buyer in connection with the due diligence review (the “Data Room Documents”) as reflected in the data room index attached hereto as Annex 8.1.5(c)(i) (the “Data Room Index”); and |
(ii) | the disclosure letter provided by the Seller (the “Disclosure Letter”), including any documents attached to the Disclosure Letter, all as set forth in Annex 8.1.5(c)(ii); |
(d) | Update of Disclosure |
(e) | Exclusion or Reduction of Liability |
8.1.6. | Third Party Claims |
8.2. | Remedy of the Seller |
8.3. | Remedies Exclusive, Fraud or Wilful Misrepresentation |
9. | Covenants |
9.1. | [*] |
9.2. | Press Releases and Other Public Announcements |
(a) | any announcement or disclosure required by statutory law, any competent judicial or regulatory authority or any competent securities exchange (in which case the Parties shall cooperate in good faith in order to agree on the content of any such announcement or disclosure before it is made); |
(b) | the Buyer or a Group Company, after Closing, from informing customers or suppliers of the acquisition of the Group by the Buyer; or |
(c) | the Buyer from making any disclosure to any of its directors, officers, employees, agents or advisors who need to receive such information for the performance of their duties; provided that each such person shall have agreed or is otherwise under the obligation to maintain the confidentiality of such information in accordance with this Section 9.2 or applicable law. |
9.3. | No Claims against Directors and Officers |
(a) | against any director or officer of a Group Company in connection with his or her acts or omissions in such capacity before the Closing; and |
(b) | against the Seller in connection with the Seller's capacity as a direct or indirect shareholder of a Group Company. For the avoidance of doubt, the foregoing sentence does not affect the rights and remedies of the Buyer pursuant to this Agreement. |
(c) | each Group Company to call and hold an extraordinary shareholders' meeting or the equivalent thereof; and |
(d) | a resolution to be passed at each such meeting granting unconditional discharge to the directors and officers of the relevant Group Company for their acts or omissions as directors and officers of such Group Company before the Closing (the “Discharge”). |
9.4. | Confidentiality |
(a) | prevent the Buyer from providing information to providers of financing for the transactions contemplated by this Agreement, |
(b) | prevent the Buyer or the Seller from disclosing this Agreement or details of the transactions to be performed pursuant to its terms for the purposes of satisfying the Conditions Precedent; or |
(c) | prevent the Buyer or the Seller from exercising its rights and under this Agreement. |
9.5. | Non-Compete |
9.5.1. | Scope of Non-Compete Obligation |
(a) | serve for a Competitor as managing director, employee, consultant, contractor or otherwise; |
(b) | hold, directly or indirectly, any interests in a Competitor, except for shares in publicly listed corporations which represent a capital participation of less than five percent (5 %); |
(c) | influence or attempt to influence any customer, supplier, employee, consultant or other third party maintaining a contractual or other business relationship with the Group to terminate or discontinue such contractual or other business relationship or to reduce the volume of goods or services provided thereunder; or |
(d) | solicit or attempt to solicit the service or employment of current or future managing directors, employees or consultants of any member of the Group. |
9.5.2. | Definitions; Remedies |
(a) | “Competitor” shall mean any individual person or legal entity, which conducts any business activities which are in competition with the business as conducted by any Group Company on the Closing Date. |
(b) | The Parties agree that in the case of a breach by the Seller of the obligations in this Section 9.5 the remedies available to the Buyer under this Agreement are not sufficient to hold the Buyer and any Group Company fully harmless against the detriments suffered therefrom, and that therefore the Buyer shall be entitled to enforce any claims for specific performance by the Seller of the obligations set forth in this Section 9.5 by injunctive relief without having to specifically establish irreparable harm or injury and without providing a bond or other collateral. |
10. | Cumulative Assumption of the Buyer's Obligations |
(a) | shall not be released or diminished by any variation of the Buyer's Assumed Obligations or any forbearance, neglect or delay in seeking performance of the Buyer's Assumed Obligations or any granting of time for such performance; and |
(b) | shall not be affected or impaired by reason of any other fact or event which in the absence of this provision would or might constitute or afford a discharge or release or a defence to a guarantor or co-obligor. |
11. | Taxes, Costs, Expenses and Interest |
11.1. | Taxes |
11.2. | Costs and Expenses |
11.3. | Interest |
12. | Miscellaneous |
12.1. | Effect on Third Parties |
12.2. | Notices |
12.3. | Entire Agreement |
12.4. | Amendments and Waivers |
12.5. | No Assignment |
12.6. | Severability |
13. | Governing Law and Jurisdiction |
13.1. | Governing Law |
13.2. | Arbitration |
13.3. | Construction |
(a) | For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders. |
(b) | As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” |
(c) | Except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits,” “Annexes” and “Schedules” are intended to refer to Sections of this Agreement and Exhibits, Annexes or Schedules to this Agreement. |
Seller | ||||
Biel, March 30, 2012 | /s/ Heinz Rüedi | |||
Place, date | Heinz Rüedi |
Buyer | Power Integrations Netherlands B.V. | |||
March 30, 2012 | /s/ Sandeep Nayyar | |||
Place, date | By: Sandeep Nayyar, Director |
Co-Obligor | Power Integrations Limited | |||
March 30, 2012 | /s/ Balu Balakrishnan | |||
Place, date | By: Balu Balakrishnan, President |
Subsidiary | Shareholding | Remarks |
CT-Concept Holding AG | 90% | direct shareholding |
CT-Concept Technologie AG | 100% | indirect shareholding (through CT-Concept Holding AG) |
Defined Term | Meaning |
Affiliate | shall mean with respect to any person, any person that directly or indirectly through one or more intermediaries, controls such person or is under direct or indirect common control with such person. As used herein, the term "control" means possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person, whether through the ownership of voting securities, by contract or otherwise. |
Agreed Rate | shall mean an annual rate of interest equal to LIBOR for three-month deposits in Swiss francs (as reported on the Financial Times page «Money Rates» for the date the payment was due) plus 100 basis points. |
Agreement | shall mean the Share Purchase Agreement, to which this Annex 1 is attached, including all Annexes and Schedules attached thereto. |
Annex | shall mean an annex to this Agreement. |
Appraiser | shall have the meaning given in Annex 3.2.1(2). |
Assets | shall have the meaning given in Annex 3.2.1(1). |
Business Day | shall mean any day on which the commercial banks in Zurich and New York are open for normal business transactions. |
Buyer | shall have the meaning given on the cover page of this Agreement. |
Buyer Conditions Precedent | shall have the meaning given in Section 5.2. |
Buyer's Assumed Obligations | shall have the meaning given in Section 9.5. |
Cap | shall have the meaning given in Section 8.1.5(b). |
Carve-Out Actions | shall mean (i) the purchase and carve-out of the Carved-Out Assets by the Seller from the Group Companies, and (ii) the assumption of all the Liabilities associated with, or relating to, the Carved-Out Assets (the “Excluded Liabilities”), both against the payment of the Carve-Out Consideration. |
Carved-Out Assets | shall have the meaning given in Annex 5.2(e). |
Carve-Out Consideration | shall have the meaning given in Annex 5.2(e). |
CB-Shares | shall have the meaning given in Section (a) of the Preamble. |
CHF | shall mean Swiss francs, being the lawful currency of Switzerland. |
Closing | shall mean the consummation of the Transaction as described in Section 6. |
Closing Accounts | shall mean the reviewed consolidated financial statements of the Group as of the Closing Date (assuming the Closing has occurred). |
Closing Date | shall mean the date on which the Closing actually occurs, as provided in Section 6.1. |
Closing Memorandum | shall have the meaning given in Section 4.4. |
Closing Net Asset Value | shall have the meaning given in Annex 3.2.1(1). |
CO | shall mean the Swiss Code of Obligations (OR). |
Company | shall have the meaning given in Section (a) of the Preamble. |
Company IP | shall have the meaning given in paragraph (g) of Annex 7.1. |
Competitor | shall have the meaning given in Section 9.5.2(a). |
Condition(s) Precedent | shall have the meaning given in Section 5.3. |
Confidentiality Agreement | shall have the meaning given in Section 9.4. |
Consolidated Financial Statements | shall have the meaning given in paragraph (d) of Annex 7.1. |
Co-Obligor | shall have the meaning given on the cover page of this Agreement. |
CT Holding | shall have the meaning given in Section (b) of the Preamble. |
CTH-Shares | shall have the meaning given in Section (b) of the Preamble |
Damage | shall have the meaning given in Section 8.1.3. |
Data Room Documents | shall have the meaning given in Section 8.1.5(c)(i). |
Data Room Index | shall have the meaning given in Section 8.1.5(c)(i). |
Discharge | shall have the meaning given in Section 9.3. |
Disclosure Information | shall have the meaning given in Section 8.1.5(c). |
Disclosure Letter | shall have the meaning given in Section 8.1.5(c)(ii). |
Escrow Account | shall have the meaning given in Section 3.4.2. |
Escrow Agent | shall have the meaning given in Section 3.4.2. |
Escrow Agreement | shall have the meaning given in Section 3.4.1. |
Escrow Amount | shall have the meaning given in Section 3.4.2. |
Escrow Period | shall have the meaning given in Section 3.4.2. |
Excluded Assets | Shall have the meaning given in the definition of Carve-Out Actions in this Annex 1. |
Fairly Disclosed | shall mean the disclosure of a fact in a manner which in view of the level of information available to the Buyer at the date thereof allowed the Buyer and its advisers to reasonably identify and assess the impact of such fact on the business operations and prospects of the Group. |
Final Accounts | shall have the meaning given in Annex 3.2.1(2). |
Final Adjustment | shall have the meaning given in Annex 3.2.1(2). |
Group | shall have the meaning as per Section (c) of the Preamble. |
Group Company/ies | shall have the meaning as per Section (c) of the Preamble. |
Inbound Licenses | shall mean any contract pursuant to which any IP is or has been licensed, sold, assigned or otherwise conveyed or provided to any Group Company. |
Included Liabilities | shall have the meaning given in Annex 3.2.1(1). |
IP | shall mean all patents and industrial property rights, trade marks and trade name rights, trade secret rights, rights associated with works of authorship, including exclusive exploitation rights, copyrights and moral rights; other proprietary rights in intellectual property. |
Liabilities | shall mean any debt, obligation, duty or liability of any nature (including any unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, conditional, implied, derivative, joint or several liability), regardless of whether such debt, obligation, duty or liability would be required to be disclosed on a balance sheet prepared in accordance with Swiss GAP FER. |
Lien | shall mean any lien, charge, encumbrance, security interest including but not limited to interests arising from options, pledges, mortgages, indentures, security agreements, rights of first refusal or rights of preemption, irrespective of whether such Lien arises under any agreement, covenant, other instrument, the mere operation of statutory or other laws or by means of a judgment, order or decree of any court, judicial or administrative authority, and shall also mean any approval or consent required from a third party to the exercise or full vesting of a right or title. |
Litigation | shall have the meaning given in paragraph (k) of Annex 7.1. |
Long Stop Date | shall have the meaning given in Section 6.1. |
Material Adverse Effect | means any matter, change, violation event or circumstance (or series of matters, changes, violations, events or circumstances) that will result in a material adverse change in the Group's assets (including intangible assets), financial condition, operating results, customer and employee relations, business prospects or financing agreements; provided that any such change resulting from any change in economic conditions generally or in the industries in which the Company operates as well as resulting from the public announcement of the transaction contemplated by this Agreement shall not be relevant. |
Material Contract | shall have the meaning given in paragraph (i) of Annex 7.1. |
Mutual Condition Precedent | shall have the meaning given in Section 5.1. |
Notice of Breach | shall have the meaning given in Section 8.1.1. |
Notice of Objection | shall have the meaning given in Annex 3.2.1(2). |
Objecting Party | shall have the meaning given in Annex 3.2.1(2). |
Owned IP | shall have the meaning given in paragraph (g) of Annex 7.1. |
Party | shall mean the Seller or the Buyer or the Co-Obligor, as the context may require. |
Payment Certificate | shall have the meaning given in Section 4.4. |
Pending Amount | shall have the meaning given in Section 3.4.2. |
Pension Plan | shall have the meaning given in paragraph (n) of Annex 7.1. |
Permits | shall mean governmental licenses and permits that are necessary for the conduct of the business and operations of the Group as conducted on the date hereof. |
Policies | shall have the meaning given in paragraph (j) of Annex 7.1. |
Pre Closing Period | shall have the meaning given in Section 4.3.1. |
Preliminary Purchase Price | shall have the meaning given in Section 3.1. |
Proposed Accounts | shall have the meaning given in Annex 3.2.1(2). |
Proposed Adjustment | shall have the meaning given in Annex 3.2.1(2). |
Purchase Price | shall have the meaning given in Section 3.1. |
Qualifying Claim | shall have the meaning given in Section 8.1.5(a). |
Registered Intellectual Property Rights | shall have the meaning set forth in paragraph (f)(i) of Annex 7.1. |
Section | shall mean a section of this Agreement. |
Seller | shall have the meaning given on the cover page of this Agreement. |
Seller Expense | shall have the meaning given in Section 11.2. |
Seller's Conditions Precedent | shall have the meaning given in Section 5.3. |
Seller's Personal Debt Amount | shall have the meaning given in Section 4.4. |
Seller's Release | shall mean the letter set forth in Annex 6.2(i). |
Shares | shall have the meaning given in Section (d) of the Preamble. |
Significant Customer | shall have the meaning given in Section (p) of Annex 7.1. |
Significant Supplier | shall have the meaning given in Section (p) of Annex 7.1. |
Swiss GAAP FER | means the Swiss Generally Accepted Accounting Principles (GAAP) Fachempfehlung zur Rechnungslegung (FER) (core FER and Swiss GAAP FER 30). |
Taxes | shall mean all tax liabilities, including income taxes (personal or corporate), capital taxes, stamp duties (both on the issuance and on the transfer or securities), withholding taxes, value added taxes and all other taxes, duties, levies or imposts payable to any competent taxing authority in any jurisdiction, as well as any interest, penalties, costs and expenses reasonably related thereto. |
Threshold | shall have the meaning given in Section 8.1.5. |
Yardstick Net Asset Value | shall be CHF [*], calculated based on the computation as set forth in Annex 3.2.1(3). |
A. | Procedural Matters |
• | whether the specific items of the Proposed Accounts that are disputed by the Objecting Party in its Notice of Objection are accurate and in accordance with this Annex 3.2.1(2), Section 3.2.1, Section 3.2.2 and Annex 3.2.1(1), and if not, what alterations are to be made to the Proposed Accounts in order to correct the relevant inaccuracy of any such specific item; and |
• | based on the Final Accounts established by the Appraiser in accordance with the above, the Final Adjustment in accordance with this Annex 3.2.1(2), Section 3.2.1, Section 3.2.2 and Annex 3.2.1(1). |
• | give the Parties a reasonable opportunity to make written and oral presentations to him or her; |
• | require that each Party provide the other with a copy of any written presentations at the same time as they are made available to the Appraiser; |
• | permit each Party to be present while oral submissions are being made by the other Party or while evidence is |
• | conduct the proceedings in English, unless otherwise agreed among the Parties. |
B. | General Principles Applicable to the Closing Accounts |
(d) | The Proposed Accounts and the Final Accounts shall be drawn up: |
(i) | in accordance with the policies and practices set out in this Annex; |
(ii) | in accordance with the policies, practices and guidelines used to calculate the Yardstick Net Asset Value, as set forth in Annex 3.2.1(3) and in so far as not inconsistent with the foregoing, using Swiss GAP FER. |
(e) | The Closing Accounts shall be drawn up as of the Closing Date (immediately following the Closing). |
(f) | The Closing Accounts shall be expressed in CHF and amounts in other currencies shall be translated into CHF at the exchange rates prevailing on the close on the Closing Date. |
(g) | The Buyer shall prepare, or shall procure that the Company prepares, the Closing Accounts. |
(h) | The Closing Accounts shall be reviewed by the Company's statutory auditor. |
(a) | Ownership and Qualification |
(i) | The Seller is the sole legal and beneficial owners of the Shares, free and clear of any Liens. There are no outstanding options, warrants, calls, rights or commitments, or any other agreements of any character relating to the sale, issuance or voting of, or the granting of rights to acquire, any of the Shares. |
(ii) | There is no (A) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any Group Company ; (B) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the any Group Company; (C) contract under which any Group Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (D) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any person to the effect that such person is entitled to acquire or receive any shares of capital stock or other securities of any Group Company. |
(iii) | The Company directly or indirectly owns the shares in the subsidiaries as set forth in Annex (C) free and clear of any Liens and the Seller and the Company together own all the outstanding shares of CT Holding free and clear of any Liens. The CTH-Shares and the CB-Shares: (A) have been duly authorized and validly issued and are fully paid; (B) have been issued in compliance with all applicable securities laws and other applicable legal requirements and all requirements set forth in applicable contracts; and (C) were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities of the Company and CT Holding. |
(iv) | Each Group Company is duly incorporated, organized and validly existing under the laws of its place of incorporation and has full corporate power and authority to own or use its assets and properties and to conduct its business as the same is presently being conducted. |
(b) | Due Authorization |
(c) | Noncontravention |
(i) | The execution and delivery by Seller of this Agreement does not, and the consummation of the transactions contemplated hereby will not, (1) result in the creation of any Lien on the Shares or any of the assets of the Group Companies or (2) conflict with, or result in any violation of or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation or loss of any benefit under, or require any consent, approval or waiver from any person pursuant to, (A) any provision of the organizational documents of any Group Companies, (B) any contract applicable to any of the Shares or any of the assets of the Group Companies or any other contract by which any Group Company is bound, or (C) any laws applicable to the Seller, any of the Shares or any of the assets of the Group Companies. |
(ii) | No authorizations, approvals, declaration, registration, filing with, permits or consents are required from any governmental or administrative authority, or any third party with for the execution and delivery of this Agreement by the Seller or the consummation of the transactions contemplated hereby. There are no actions, suits or proceedings pending against the Seller, any Group Company or any of the Seller's Affiliates before any court or administrative board, agency or commission which involve a claim by a governmental or regulatory authority, or by a third party, which would operate to hinder or impair the consummation of the transactions contemplated by this Agreement or any current or presently proposed business practice of any Group Company or any acquisition of property by any Group Company. Neither the Seller nor any Group Company has any knowledge of any actions, suits or proceedings in accordance with the preceding sentence which have been threatened in writing to be filed or instituted against the Seller, any Group Company or any of the Seller's Affiliates. |
(d) | Consolidated Financial Statements; Liabilities and Absence of Changes |
(i) | the consolidated financial statements of the Group as of 31 December 2011, which are based on the audited statutory financial statements of CT-Concept Technologie AG and CT-Concept Holding AG and the reviewed statutory financial statements of Concept Beteiligungen AG (the “Consolidated Financial Statements”): (A) were drawn up, prepared and consolidated in accordance with Swiss GAP FER and consistent with past practice, subject only to the exceptions mentioned in the Company statutory auditor's review report on the Consolidated Financial Statements; (B) are derived from and in accordance with the books and records of the Group; (C) complied as to form in all material respects with applicable Swiss GAP FER; and (D) fairly present the consolidated financial condition of the Group as of the dates therein indicated and the consolidated results of operations and cash flows of the Group for the periods therein specified, all in accordance with Swiss GAP FER. |
(ii) | None of the Group Companies has any Liabilities of any nature other than (A) those set forth or adequately provided for in the Consolidated Financial Statements, (B) those incurred in the conduct of the Company's business since 31 December 2011 in the ordinary course, consistent with past practice, which are of the type that ordinarily recur and, individually or in the aggregate, are not material in nature or amount and do not result from any breach of contract, tort or violation of law, and (C) those incurred by the Group Companies in connection with the execution of this Agreement. Except for Liabilities reflected in the Consolidated Financial Statements, no Group Company has any off balance sheet Liability of any nature to, or any financial interest in, any third party or entities, the purpose or effect of which is to defer, postpone, reduce or otherwise avoid or adjust the recording of debt expenses. |
(iii) | Since 31 December 2011 and until the Closing Date, the Group Companies have carried on their business and activities in the ordinary course of business and have not taken any of the actions listed in Section 4.3.3 of the Agreement. |
(e) | Taxes |
(f) | Assets |
(g) | Intellectual Property Rights |
(i) | All patents and trade marks registered in the name of one of the Group Companies are listed in Schedule 7.1(g)(i) (collectively, together with the registered domain names of the Group as disclosed to the Buyer, the “Registered Intellectual Property Rights”). None of the Registered Intellectual Property Rights is subject to any Lien. |
(ii) | The Group Companies exclusively own all right, title, and interest to and in the IP (except for Inbound Licenses) used, or held for use by the Group Companies, including the Registered Intellectual Property Rights (collectively the “Owned IP” and together with the Inbound Licenses, the “Company IP”). The Inbound Licenses are valid and in full force and effect and together with the Owned IP grant the Acquired Companies the right to use all IP necessary for the conduct of the business as currently being conducted. Neither the execution or delivery of this Agreement, nor the consummation of the transactions contemplated thereby, will, with or without notice or lapse of time, result in, or give any other person or entity the right or option to cause or declare: (A) a loss of, or Lien on, any Company IP; (B) a breach of or default under any contract of any Group Company relating to IP; or (C) the grant, assignment or transfer to any person or entity of any license or other right or interest under, to or in any Company IP. |
(iii) | To the Seller's best knowledge: (A) the use of Company IP by the Group Companies does not infringe any third party rights, and (B) no Group Company has infringed any third party intellectual property rights and no such infringement has been alleged in writing. |
(iv) | Each current or former employee or contractor of the Group Companies who is or was involved in the creation or development of any Company IP has signed a valid, enforceable agreement containing an assignment of intellectual property rights to the relevant Group Company and confidentiality provisions protecting the Company IP. No current or former stockholder, officer, director, or employee of any Group Company has any claim, right (whether or not currently exercisable), or interest to or in any Company IP. No employee of any Group Company is (i) bound by or otherwise subject to any contract restricting him or her from performing his or her duties for such company or (ii) in breach of any contract with any former employer or other person concerning intellectual property rights or confidentiality. |
(v) | No funding, facilities, or personnel of any governmental body or any college, university or other educational institution were used, directly or indirectly, to develop or create, in whole or in part, any Company IP. |
(vi) | No claims have been made, or threatened in writing, challenging the use, validity, existence or enforceability of the Company IP. All registration fees for the Registered Intellectual Property Rights have been paid. |
(vii) | To the Seller's best knowledge there has been no infringement of any of the Company IP by any third party and no such infringement has been alleged in writing. |
(h) | Employment |
(i) | No employee has a notice period for the termination of his employment longer than 6 (six) months nor is there a compensation contractually required for termination on due notice, which would exceed the equivalent of 6 months' salary. As at the date of this Agreement, no material salary increases have been resolved but not yet implemented. There are no employment or benefit agreements or plans entitling an employee to severance or other payments due upon a change of control of the Group. |
(ii) | There are no current disputes with any governmental or self-regulatory authority, any works council or other employee representatives. |
(iii) | The Group Companies are not engaged, and the Group Companies have never been engaged, in any unfair labor practice of any nature in violation of any legal requirement. |
(iv) | None of the current or former independent contractors of the Group Companies could be reclassified as an |
(v) | The Group Companies (A) are, and at all times have been, in compliance with all applicable legal requirements respecting employment, employment practices, terms and conditions of employment and wages and hours, in each case, with respect to their respective employees; (B) have withheld and reported all amounts required by applicable legal requirements or by contract to be withheld and reported with respect to wages, salaries and other payments to their employees; and (C) are not liable for any arrears of wages, or any taxes or any penalty for failure to comply with the legal requirements applicable of the foregoing. |
(i) | Material Contracts |
(i) | The Disclosure Information contains, lists or refers to all material contracts (the “Material Contracts”) of the Group, including contracts which: |
(1) | contain any agreement by a Group Company prohibiting or limiting the right to compete in any material line of business; |
(2) | contain any agreement or series of agreements which provide for an aggregate payment obligation (Zahlungsverpflichtung) of the Group of an amount exceeding CHF [*]; |
(3) | contain any agreement that involves performance of services or delivery of goods to one or more of the Group Companies of an amount or value exceeding CHF [*] in the aggregate; |
(4) | contain any provision which requires any Group Company to obtain consent from any third party or to provide notice to any third party or provides for adverse consequences to one or more of the Group Companies in case of a change of control of the any Group Company; |
(5) | relate to the acquisition or disposal by a Group Company after 1 January 2011 of a company or business for a consideration in excess of CHF 1 million; |
(6) | relate to the voting and any other rights or obligations of a shareholder of any of the Group Companies in its capacity as a shareholder; |
(7) | contain any obligation by any Group Company to the Seller or any of the Seller's Affiliates; |
(8) | relate to the acquisition, transfer, development or sharing of any technology, IP or Company IP (including any joint development agreement, technical collaboration agreement or similar agreement entered into by any of the Group Companies): |
(9) | relate to the license of any IP or Company IP to or from any of the Group Companies; |
(10) | grant exclusive rights to license, market, sell or deliver any of the products or services of any of the Group Companies or otherwise contemplate an exclusive relationship between any of the Group Companies and any other person or entity; |
(11) | involve any loan, guaranty, pledge, performance or completion bond or indemnity or surety arrangement; |
(12) | contain an outstanding obligation in respect of unpaid purchase price (whether or not contingent) of an amount exceeding CHF 300,000.00 upon acquisition of a company or business which is not reflected in the Consolidated Financial Statements; |
(13) | relate to a joint-venture, alliances or other form of cooperation agreements with third parties providing for an annual aggregate payment obligation of the Group in excess of CHF [*]; or |
(14) | are not terminable on less than 3 months' notice without resulting in a payment obligation triggered by such termination exceeding CHF [*]. |
(ii) | The Material Contracts are, to the best knowledge of Seller and the Group Companies, valid and enforceable. Each Group Company has performed all material obligations arising out of such contracts and no notice of termination or violation has been received or given. The counterparties have performed all material obligations arising out of such contracts and to the Seller's best knowledge no grounds for early termination exist. To the best knowledge of Seller and the Group Companies, the other parties to the Material Contracts (other than the Group) have not violated any of the Material Contracts in any material respect. |
(j) | Insurance |
(i) | Each Group Company has obtained or has the benefit of reasonable insurance coverage, both as required by law. All premiums due on all current insurance contracts (the “Policies”) entered into in favor of Group Companies have been duly paid and, to the best knowledge of Seller and the Group Companies, the Policies are valid and in force. |
(ii) | There is no material claim outstanding under any of the Policies (or under any policies previously held by a Group Company); all material claims have been settled in full. Since 1 January 2011 there have been no material claims as to which insurance coverage has been denied. |
(k) | LitigationThere are no judgments, decrees or orders outstanding or unsatisfied, and there are no actions, suits or proceedings (the “Litigation”) pending or threatened in writing against any Group Company by or before any court, arbitral tribunal, administrative board, agency or commission which involve a claim by a governmental or regulatory |
(l) | Compliance |
(m) | Pension Plans and Social Security |
(i) | All material agreements or arrangements for the payment of pensions, social security, allowances, lump sums or other similar benefits upon retirement or death or during periods of sickness or disablement for the benefit of any current or former director, officer or employee of a Group Company or such person's dependants (the “Pension Plans”) have been established in compliance with applicable laws and regulations. At the date hereof, no Group Company has any overdue material obligation to provide, or contribute to, any Pension Plan. Any and all returns and reports related to Pension Plans contributions that are required to be filed with respect to the Group Companies have been timely and correctly filed. To the best of the knowledge of the Seller and the Group Companies, there are no facts or circumstances existing or having arisen prior to the Closing Date which have or may lead to a reassessment by any social security authority of social security contributions to be made by the Group Companies relating to the three years period prior to the Closing Date. |
(ii) | All Pension Plans are, to the extent relevant, fully funded under Swiss law. All deductions from employee salaries for social security and Pension Plans have been made and all such deductions and all premiums due to be paid by a Group Company to a Pension Plan as of the Closing Date have been paid. |
(n) | Broker's Fees |
(o) | Interested Party Transactions |
(p) | Customers; Suppliers |
(q) | Carved-Out Assets |
(r) | Payments |
(s) | Representations Complete |
(a) | The Buyer is a corporation duly organized and validly existing under the laws of the Netherlands and has full corporate power, authority and necessary governmental approvals to own or use its assets and properties and to conduct its business as the same is presently being conducted. |
(b) | The Buyer has the absolute and unrestricted right, power, authority and capacity and has received all the necessary approvals from its corporate bodies to execute this Agreement and to perform its respective obligations hereunder. There are no limitations under applicable law and the constituting documents of the Buyer, or any contracts by which the Buyer is bound that would prevent the Buyer from entering into or performing its obligations under this Agreement. |
(c) | No authorizations, permits or consents are required from any governmental or administrative authority, or any third party (including without limitation any shareholders or creditors of the Buyer) for the consummation of the transactions contemplated by this Agreement other than consents from non-governmental third parties that are not reasonably likely to affect the ability of the Buyer to consummate the transactions contemplated by the Agreement. |
(d) | There are no actions, suits or proceedings pending against the Buyer or any of the Buyer's Affiliates before any court or administrative board, agency or commission which involve a claim by a governmental or regulatory authority, or by a third party, which would operate to hinder or substantially impair the consummation of the transactions contemplated by this Agreement. The Buyer has no knowledge of any actions, suits or proceedings in accordance with the preceding sentence which have been threatened in writing to be filed or instituted against the Buyer or any of the Buyer's Affiliates. |
(e) | The Buyer has arranged for and on the Closing Date will have the necessary funds to finance the transactions contemplated by this Agreement. The Buyer further represents, warrants, and confirms that the funds which it shall use to finance the present transaction originate from legal sources and that the use of such funds in the present transaction does not violate any applicable laws of any relevant jurisdiction. |
(f) | The Co-Obligor is a Cayman Limited corporation duly organized and validly existing under the laws of Cayman and has full corporate power, authority and necessary governmental approvals to own or use its assets and properties and to conduct its business as the same is presently being conducted. |
(g) | The Co-Obligor has the absolute and unrestricted right, power, authority and capacity and has received all the necessary approvals from its corporate bodies to execute this Agreement and to perform its respective obligations hereunder. There are no limitations under applicable law and the constituting documents of the Co-Obligor, or any contracts by which the Co-Obligor is bound that would prevent the Co-Obligor from entering into or performing its obligations under this Agreement. |
(h) | No authorizations, permits or consents are required from any governmental or administrative authority, or any third party (including without limitation any shareholders or creditors of the Co-Obligor) for the consummation of the transactions contemplated by this Agreement other than consents from non-governmental third parties that are not reasonably likely to affect the ability of the Buyer to consummate the transactions contemplated by the Agreement. |
(i) | The Co-Obligor is the sole legal and beneficial owner of the Buyer. |