UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of
earliest event reported): January 29, 2015
PERCEPTRON,
INC.
(Exact name of registrant as specified in its charter)
Michigan |
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0-20206 |
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38-2381442 |
(State or other jurisdiction |
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(Commission |
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(IRS Employer |
of incorporation) |
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File Number) |
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Identification No.) |
47827 Halyard Drive, Plymouth, MI 48170-02461
(Address of principal executive offices) (Zip
Code)
Registrant's telephone number, including
area code (734)
414-6100
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Not applicable |
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(Former name or former address, if changed since last report) |
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Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
¨ Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
| Item 1.01 | ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT |
Coord3 Transaction
On January 29, 2015, Perceptron CMM, LLC,
a wholly owned subsidiary of Perceptron, Inc. (the “Company”), entered into the Agreement for the purchase of 100%
of the business of Coord3 Industries s.r.l. dated January 29, 2015, among Coord3 Industries, s.r.l., an Italian company, (“Coord3”)
and Angelo Muscarella (together with Coord3, the “Coord3 Sellers”) and Perceptron CCM, LLC (the “Buyer”)
(the “Coord3 Agreement”) pursuant to which the Buyer or an affiliate will acquire the business of Coord3 for €2
million (the “Coord3 Transaction”). The purchase price is payable €1.7 million at closing and €300,000 18
months following closing to the extent not used to cover indemnification obligations of the Coord3 Sellers. The Company expects
to fund the purchase price from cash on hand.
Coord3 is a designer and manufacturer of
coordinate measurement machines, based in Turin, Italy.
In connection with the Coord3 Transaction,
Coord3 will contribute substantially all of its assets and liabilities to a newly formed Italian company (“NewCo”).
An affiliate of the Company will acquire all of the share capital of NewCo. The liabilities of Coord3 to be contributed to NewCo
will include: (i) approximately €9.2 million due to banks and for tax and other governmental obligations and (ii) accounts
payable and other accrued liabilities.
The purchase price under the Coord3 Transaction
is subject to a working capital adjustment and an adjustment based upon the amount of bank debt outstanding as of the closing date.
The Coord3 Agreement contains customary representations, warranties and covenants. The Buyer and Coord3 Sellers have each agreed
to indemnify the other for breaches of representations and warranties and for other specified matters. The Coord3 Sellers will
be subject to non-competition and non-solicitation provisions following the consummation of the Coord3 Transaction.
The Coord3 Transaction is expected to
close by the end of February 2015. The closing is subject to the satisfaction of customary closing conditions. The Coord3
Agreement may be terminated by the Company and the Coord3 Sellers under certain specified circumstances.
The foregoing description is qualified in
its entirety by reference to the Coord3 Agreement, which is attached as Exhibit 10.1 and incorporated by reference.
The Coord3 Agreement contains representations
and warranties by the Company and the Sellers as of specific dates. The representations and warranties reflect negotiations between
the parties to the Coord3 Agreement and are not intended as statements of fact to be relied upon by the Company’s shareholders.
In certain cases, the representations and warranties merely represent allocation decisions among the parties. The representations
and warranties have been modified or qualified by certain confidential disclosures that were made between the parties in connection
with the negotiation of the Coord3 Agreement, which disclosures are not reflected in the Coord3 Agreement itself, may no longer
be true as of a given date and may apply standards of materiality in a way that is different from what may be viewed as material
by shareholders. As such, the representations and warranties are solely for the benefit of the parties to the Coord3 Agreement.
The representations and warranties may not describe the actual state of affairs at the date they were made or at any other time,
may change after the date of the Coord3 Agreement and should not be relied upon as statements of facts.
Next Metrology Transactions
On January 29, 2015, the Company consummated
the acquisition of all of the share capital of Next Metrology s.r.o., a Czech Republic company, (the “NMS Transactions”)
pursuant to the terms of (i) a Stock Purchase Agreement, dated January 29, 2015, between Keith Mills and the Company, (ii) a Stock
Purchase Agreement, dated January 29, 2015, between Angelo Muscarella and the Company, and (iii) a Share Purchase Agreement, dated
January 29, 2015, between Topmes s.r.o and the Company, (collectively, the “NMS Stock Purchase Agreements”). (Each
of Messrs. Mills and Muscarella and Topmes s.r.o. are referred to as the “NMS Sellers”).
Next Metrology Software s.r.o is a developer
of software for coordinate measurement machines, based in Prague, Czech Republic.
The aggregate purchase price paid in the
NMS Transactions for all of the share capital of NMS is €2.25 million. The purchase price was paid €1.8 million at closing,
€250,000 upon the closing of the Coord3 Transaction, €100,000 12 months following closing of the NMS Transactions to
the extent not used to cover indemnification obligations of Mr. Mills and €100,000 12 months following closing of the NMS
Transactions to the extent not used to cover indemnification obligations of Mr. Muscarella. The Company funded the purchase price
from cash on hand.
In connection with the closing of the NMS
Transactions, Mr. Mills was appointed Vice President, Global Marketing, for Perceptron. A deal consummation fee of €250,000
is payable to an affiliate of Mr. Mills upon the closing of the Coord3 Transaction.
The NMS Stock Purchase Agreements contain
customary representations, warranties and covenants. The Company and the NMS Seller under each of the NMS Stock Purchase Agreements
have each agreed to indemnify the other for breaches of representations and warranties and for other specified matters. The NMS
Sellers are subject to non-competition and non-solicitation provisions following the consummation of the NMS Transactions.
The foregoing description is qualified in
its entirety by reference to the NMS Stock Purchase Agreements, which are attached as Exhibits 10.2, 10.3 and 10.4 and incorporated
by reference.
The NMS Stock Purchase Agreements contain
representations and warranties by the Company and the NMS Sellers as of specific dates. The representations and warranties reflect
negotiations between the parties to the NMS Stock Purchase Agreements and are not intended as statements of fact to be relied upon
by the Company’s shareholders. In certain cases, the representations and warranties merely represent allocation decisions
among the parties. The representations and warranties have been modified or qualified by certain confidential disclosures that
were made between the parties in connection with the negotiation of NMS Stock Purchase Agreements, which disclosures are not reflected
in the NMS Stock Purchase Agreements themselves, may no longer be true as of a given date and may apply standards of materiality
in a way that is different from what may be viewed as material by shareholders. As such, the representations and warranties are
solely for the benefit of the parties to the NMS Stock Purchase Agreements. The representations and warranties may not describe
the actual state of affairs at the date they were made or at any other time, may change after the date of the NMS Stock Purchase
Agreements and should not be relied upon as statements of facts.
Seventh Amendment to Credit Agreement
On January 29, 2015, the Company and Comerica
Bank entered into the Seventh Amendment to the Credit Agreement dated as of November 16, 2010 (as amended, the “Credit Agreement”).
Under the Seventh Amendment, Comerica Bank consented to the Coord3 Transaction and the NMS Transactions. The Seventh Amendment
also amended the Credit Agreement to limit the aggregate outstanding advances outstanding under the Credit Agreement to a borrowing
formula set forth in an Advance Formula Agreement. Borrowings under the Credit Agreement are limited to the lesser of (i) $6 million
or (ii) 80% of the Company’s Eligible Accounts. The Seventh Amendment also amends the Credit Agreement to require the Company
to maintain a minimum Tangible Net Worth of not less than $31 million. All other material terms of the Credit Agreement remain
in full force and effect, without waiver or modification. The foregoing description is qualified in its entirety by reference to
the Seventh Amendment and Advance Formula Agreement, which are attached as Exhibits 10.5 and 10.6 and incorporated by reference.
| Item 9.01 | Financial Statements and Exhibits |
Exhibit No. |
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Description |
Exhibit 10.1* |
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Agreement for the purchase of 100% of the business of Coord3 Industries s.r.l. dated January 29, 2015, among Coord3 Industries s.r.l., Angelo Muscarella and Perceptron CCM, LLC |
Exhibit 10.2* |
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Stock Purchase Agreement, dated January 29, 2015, between Keith Mills and Company |
Exhibit 10.3* |
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Stock Purchase Agreement, dated January 29, 2015, between Angelo Muscarella and Company |
Exhibit 10.4* |
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Share Purchase Agreement, dated January 29, 2015, between Topmes s.r.o and Company |
Exhibit 10.5 |
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Seventh Amendment to Amended and Restated Credit Agreement, dated November 16, 2010, between the Company and Comerica Bank |
Exhibit 10.6 |
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Advance Formula Agreement, dated January 29, 2015, between the Company and Comerica Bank |
* Schedules
have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company hereby agrees to furnish supplementally copies of
the omitted schedules upon request by the Securities and Exchange Commission.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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PERCEPTRON, INC. |
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Date: February 4, 2015 |
/s/ Keith R. Marchiando |
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By: Keith R. Marchiando |
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Its: Vice President – Finance, Chief Financial Officer |
EXHIBIT INDEX
Exhibit No. |
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Description |
Exhibit 10.1* |
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Agreement for the purchase of 100% of the business of Coord3 Industries s.r.l. dated January 29, 2015, among Coord3 Industries s.r.l., Angelo Muscarella and Perceptron CCM, LLC |
Exhibit 10.2* |
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Stock Purchase Agreement, dated January 29, 2015, between Keith Mills and Company |
Exhibit 10.3* |
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Stock Purchase Agreement, dated January 29, 2015, between Angelo Muscarella and Company |
Exhibit 10.4* |
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Share Purchase Agreement, dated January 29, 2015, between Topmes s.r.o and Company |
Exhibit 10.5 |
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Seventh Amendment to Amended and Restated Credit Agreement, dated November 16, 2010, between the Company and Comerica Bank |
Exhibit 10.6 |
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Advance Formula Agreement, dated January 29, 2015, between the Company and Comerica Bank |
* Schedules have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. The Company hereby agrees to furnish supplementally copies of the omitted schedules upon request by the Securities
and Exchange Commission.
Exhibit 10.1
DATE |
January 29, 2015 |
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Angelo Muscarella |
(1) |
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Coord3 Industries s.r.l. |
(2) |
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and |
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Perceptron CMM, LLC |
(3) |
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Agreement
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for the purchase of |
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100% of the business of
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Coord3 Industries s.r.l. |
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TABLE OF CONTENTS
SECTIONS
Section 1 |
Introduction and Exhibits – Interpretation – Certain definitions |
1 |
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Section 2 |
The Transaction |
3 |
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Section 3 |
Establishment of NewCo |
3 |
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Section 4 |
Contribution in Kind |
4 |
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Section 5 |
Sale and purchase of the Shares |
5 |
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Section 6 |
Purchase Price - Purchase Price Adjustment
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6 |
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Section 7 |
Completion – Conditions to Completion |
8 |
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Section 8 |
Pre-Completion Date Covenants
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10 |
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Section 9 |
Due Diligence |
14 |
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Section 10 |
Representations and warranties |
14 |
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Section 11 |
Indemnification |
14 |
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Section 12 |
Further covenants and specific indemnities of the Sellers |
17 |
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Section 13 |
Restrictive Covenants |
19 |
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Section 14 |
Indemnity Holdback Account |
20 |
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Section 15 |
The Service Agreements |
21 |
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Section 16 |
Termination |
21 |
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Section 17 |
Miscellaneous |
22 |
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Section 18 |
Governing Law - Arbitration |
25 |
LIST OF THE EXHIBITS
Exhibit A: |
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description of the Target Business |
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Exhibit 1.03: |
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Certain definitions |
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Appendix A: |
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Appraisal Financial Situation |
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Appendix B: |
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Indemnity Matters |
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Exhibit 7.02(a)(i)(cc): |
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Director’s resignation form |
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Exhibit 7.02(a)(i)(ii) |
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Sellers Release |
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Exhibit 10.01: |
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Buyer’s representations and warranties |
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Exhibit 10.02: |
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Sellers’ representations
and warranties |
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Exhibit 15(a): |
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the Muscarella Service Agreement |
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agreement
This agreement (the “Agreement”) is entered
into on Janaury 29, 2015
by and amongst
(1) Angelo
Muscarella, Italian national, born in [ ], on [ ], domiciled at [ ], tax registration number [ ] (“Muscarella”)
(2) Coord3
Industries s.r.l., a company established under the laws of Italy, with registered offices at corso Siccardi 11bis, Torino,
Italy, registered with the Company Registry of Torino, Italy, registration and tax registration number 09061500014, issued and
subscribed share capital equal to EUR 110,000, fully paid, for the purposes of this Agreement represented by Angelo Muscarella,
in his capacity as sole director (“Coord3”)
(hereinafter
jointly “Sellers”),
and
(3) Perceptron
CMM, LLC, a company established under the laws of the State of Michigan, United States of America, with offices at 47827 Halyard
Drive, Plymouth, Michigan 48170, United States of America, State of Michigan ID no. E5614M, for the purposes of this Agreement
represented by Jeffrey M. Armstrong, in his capacity as President and Chief Executive Officer (“Buyer”),
(the Sellers and the Buyer when jointly
referred to “Parties” and each of them when generically and individually referred to “Party”)
INTRODUCTION
A. Coord3
is the sole legal and beneficial owner of the business as a going concern formed by the assets (both tangible and intangible) and
the liabilities, the contracts, utilities, licenses and permits, the employment agreements with the employees and all other elements
listed in Exhibit A (“Target Business”), through which Coord3 carries out its business activity.
B. The
share capital of Coord3 is entirely owned by Muscarella and his son, Riccardo Muscarella, [ ], in the following proportions:
(i) Muscarella:
shares of total par value of EUR 108,900, representing 99% of Coord3’s issued share capital;
(ii) Riccardo
Muscarella: shares of total par value of Eur 1,100, representing 1% of Coord3’s issued share capital.
C. Coord3
is managed by Muscarella in his capacity as sole director, with broad powers and authority to run both the ordinary and extraordinary
course of the business.
D. On
November 7, 2011, Muscarella and Mr. Keith Mills, a British national, born in [ ], on [ ], domiciled at [ ], (“Mills”)
entered into a Master Share Purchase Agreement and a Share Purchase Agreement whereby Muscarella agreed to sell to Mills and Mills
agreed to purchase shares equal to 25% of Coord3’s share capital, upon the occurrence of certain conditions provided for
therein (“November 2011 Agreements”); Mills has waived any and all rights relating to and deriving from November
2011 Agreements.
E. The
Buyer is a non-contact vision and metrology company with a long established experience in laser-based technology and applications.
F. The
Buyer is interested in acquiring the Target Business, upon the terms and conditions set forth in this Agreement.
G. The
Sellers declared that they are interested and willing to transfer and to cause the transfer of the Target Business to the Buyer,
upon the terms and conditions set forth in this Agreement.
Now therefore,
the Parties agree as follows:
SECTION 1
Introduction and Exhibits - Interpretation
– Certain definitions
1.01 Introduction, Exhibits, Appendices
and Annexes
The Introduction, the Exhibits, the Appendices
and Annexes form an integral and essential part of this Agreement, as amended from time to time as provided in Section 17.03(b).
1.02 Interpretation
In this Agreement, unless the context otherwise
requires:
(a) reference
to “this Agreement” shall include its Introduction, all of its Exhibits, Appendices and Annexes;
(b) reference
to the term “control”, “controlling” and “controlled” shall be interpreted according to article
2359 of the Italian Civil Code;
(c) the
term “person” includes individuals, firms, companies, corporations, unincorporated associations, governments, public
agencies as well as any association or partnership or joint venture (whether or not having a separate full legal capacity).
1.03 Certain definitions
In addition to terms elsewhere defined
in this Agreement and unless otherwise provided herein, the terms and expressions listed in Exhibit 1.03 shall have the meanings
indicated therein and grammatical variations of such terms shall have corresponding meanings.
SECTION
2
The Transaction
(a) The
Buyer acknowledges that, for the purposes of the transaction contemplated in this Agreement (“Transaction”),
the Sellers will cause Coord3 to:
(i) establish
a new, wholly owned limited liability subsidiary company, under the laws of Italy, on the terms set forth in Section 3 (“NewCo”);
(ii) contribute
the Target Business to NewCo in exchange for shares, on the terms set forth in Section 4 (“Contribution in Kind”).
(b) In
light of paragraph (a) above, the Parties agree that the Transaction shall entail the acquisition by the Buyer of 100% of the share
capital of NewCo (“Shares”), following the Contribution in Kind by Coord3 to NewCo, so that, upon Completion,
the Buyer will be the sole legal and beneficial owner of and will have full title to the Shares, free and clear of any Encumbrances,
and NewCo will be the legal and beneficial owner of and will have full title to the Target Business, free and clear of any Encumbrance.
(c) The
Parties acknowledge that, in the interest of the Buyer:
(i) the
Target Business after Completion would benefit if it could receive – whether directly or indirectly - Muscarella’s
continuous support and dedication to the Target Business so as to secure an orderly and smooth hand over of the same business to
the Buyer;
(ii) 36
months from the Completion Date is a sufficient time to guarantee an orderly and smooth hand over of the Target Business;
(iii) therefore,
the Service Agreements are an essential part of the Transaction and the services thereunder shall be provided until the third anniversary
of the Completion Date, without prejudice to the Buyer’s right to terminate with notice as indicated in the same Service
Agreements.
(d) The
Sellers represent and warrant that no clause or covenant of any of the November 2011 Agreements may prevent the Transaction from
being completed or may be an obstacle to Completion. In any case, by signing this Agreement, the Sellers hereby waive any right
which arises from any of the November 2011 Agreements and which may prevent the Transaction from being completed or may be an obstacle
to Completion and waive the right to activate any clause or covenant thereof which may prevent the Transaction from being completed
or may be an obstacle to Completion.
SECTION
3
Establishment of NewCo
With respect to the establishment of NewCo,
the Parties agree and the Sellers agree to procure that:
| (i) | NewCo shall be established by Coord3 as sole shareholder in the form of an Italian limited liability
company (società a responsabilità limitata); |
(ii) the
notary deed for the establishment of NewCo (“Deed of Establishment”) shall be executed at least 10 (ten) days
prior to Completion and before notary Giovanna Ioli, with offices in Torino, Italy, via Alfieri 17 (“Designated Notary”);
(iii) the
contents and all of the terms and conditions of the Deed of Establishment and of NewCo’s by-laws shall be agreed upon with
the Buyer prior to the execution of the Deed of Establishment;
(iv) NewCo’s
initial share capital, to be injected and fully paid by Coord3 upon NewCo’s establishment, shall be Eur 10,000 (ten thousand);
(v) upon
the establishment of NewCo, Muscarella shall be appointed as sole director and he shall waive the right to any director’s
fees, until the sole director will be replaced by a board of directors upon Completion.
SECTION
4
Contribution in Kind
4.01 General
The Parties acknowledge that, to complete
the Contribution in Kind, the following actions are required:
(i) appointment
by Coord3 of an appraiser (“Appraiser”) for the appraisal of the Target Business for the purposes of and pursuant
to article 2465 of the Italian civil code (“Appraisal”);
(ii) preparation
of an accurate financial situation of the Target Business as at a date which shall not be earlier than 4 (four) months prior to
the Completion Date, to be attached to the Appraisal;
(iii) increase
of NewCo’s share capital to be subscribed for by Coord3 through the Contribution in Kind;
(iv) execution
of a notary deed of contribution of the Target Business in exchange for shares (“Deed of Contribution”).
4.02 Appraisal and the financial situation
(a) The
Sellers represent that Coord3 has already appointed Mr. Guido Franco, with offices at Corso Giuseppe Siccardi 11 bis, 10122 Torino,
Italy, as the Appraiser and that the Appraiser was entrusted with the following tasks:
(i) to
prepare the Appraisal;
(ii) to
work closely with the Parties and Coord3’s management to prepare a financial situation of the Target Business as at the Reference
Date, which, in any case, shall not be earlier than 4 (four) months prior to the Completion Date, a draft of which is attached
hereto as Appendix A to Exhibit 1.03 (“Appraisal Financial Situation”);
(iii) to
deliver the Appraisal and the Appraisal Financial Situation to the Parties prior to the Completion Date.
(b) The
costs of the Appraisal shall be borne by NewCo.
4.03 NewCo’s Share Capital Increase
The Parties shall procure that an increase
of NewCo’s share capital is approved as follows (“Share Capital Increase”):
(i) the
resolution for the Share Capital Increase shall be approved on a day which is not later than 10 (ten) days prior to the Completion
Date;
(ii) the
Share Capital Increase shall be subscribed for by Coord3, in its capacity as sole shareholder of NewCo, by way of the Contribution
in Kind;
(iii) the
resolution to approve the Share Capital Increase shall allow also for a partial subscription pursuant to article 2481bis 3rd
paragraph of the Italian civil code;
(iv) the
final term for the subscription of the Share Capital Increase shall be set on a day which is 10 (ten) days after the Completion
Date, though without prejudice to Section 4.04;
(v) the
amount of the Share Capital Increase shall be Eur 990,000 (nine hundred ninety thousand), provided that the value of the Target
Business as resulting from the Appraisal in excess of such amount of the Share Capital Increase shall constitute and shall be accounted
for as a share premium reserve.
4.04 The Contribution in Kind
(a) The
Sellers shall procure that Coord3 subscribes for the entire Share Capital Increase by effecting the Contribution in Kind and, for
these purposes, that the Deed of Contribution is duly executed by Coord3 as contributor and NewCo as recipient of the Contribution
in Kind on the Completion Date, before the Designated Notary on the Completion Date. Upon the execution of the Deed of Contribution,
NewCo shall acquire full title to and ownership of the Target Business, free and clear of any Encumbrance.
(b) The
contents and all of the terms and conditions of the Deed of Contribution shall be agreed upon with the Buyer prior to the execution
of the same deed. In any case, the Deed of Contribution shall provide for representations and warranties given by Coord3 as contributor
of the Target Business for the benefit of NewCo as recipient of the Contribution in Kind which are the same as those given by the
Sellers to the Buyer under this Agreement, as applicable. It is understood that no duplication for breach of warranties shall be
allowed. Therefore, if a claim for an event which constitutes a breach of a representation or warranty is raised under this Agreement,
no claim for the same event which constitutes also a breach of a representation or warranty under the Deed of Contribution may
be raised pursuant to the latter.
(c) The
costs, duties and notary fees relating to the execution of the Deed of Contribution and the filing of the same with the Company
Registry shall be borne by NewCo.
SECTION
5
Sale and purchase of the Shares
(a) Upon
the terms and subject to the conditions set forth in this Agreement, the Sellers agree to procure the sale of the Shares by Coord3
to the Buyer and the Buyer agrees to buy the Shares, on the Completion Date.
(b) On
the Completion Date, Coord3 and the Buyer shall enter into and execute the Notary Deed of Transfer immediately after the execution
of the Deed of Contribution. The Sellers shall procure that Coord3 executes the Notary Deed of Transfer. The Parties agree that
the Notary Deed of Transfer shall be subject to this Agreement and therefore, they shall ensure that any claim however relating
to the sale of the Shares is raised under this Agreement.
(c) Upon
fulfillment of all other formalities as required by Section 7.02 and fulfillment (or waiver) of all the conditions provided for
in Section 7.03, the Buyer shall acquire full title to and ownership of the Shares, free and clear of any Encumbrance, together
with all rights attached thereto. The Parties agree that the Buyer shall benefit from all the economic effects of the sale of the
Shares as contemplated by this Agreement as from the Completion Date.
(d) The
Parties further acknowledge that the Buyer shall be entitled to appoint a third party legal entity directly or indirectly controlled
by, controlling or under common control with the Buyer, pursuant to article 1401 Italian civil code, which will acquire the Shares.
Should the Buyer wish to appoint such third party legal entity, it may do so up to the Completion Date, by notice in writing to
the Sellers. All of the Buyer’s rights and obligations arising from this Agreement shall inure to the benefit of such third
party. In any event, the Buyer will remain jointly liable together with such third party for the performance of the obligations
arising from this Agreement. The execution by such third party and Coord3 of the Notary Deed of Transfer shall be deemed as notice
of the appointment, acceptance by the Sellers and acceptance of the appointment by such third party.
SECTION 6
Purchase Price – Purchase Price
Adjustment
6.01 Purchase Price
(a) The
Parties agree that the purchase price in consideration of the transfer to the Buyer of full title to and ownership of the Shares,
free and clear of any Encumbrances, shall be paid by the Buyer to Coord3 and it shall comprise of:
(i) a
provisional purchase price to be paid upon Completion as follows:
(aa) Eur
2,000,000 (two million) in cash (“Provisional Purchase Price”);
and it
shall be subject to Sections 6.02 (the Provisional Purchase Price, as adjusted pursuant to Section 6.02 “Purchase Price”).
(b) In
addition to the truthfulness of the representations and warranties of the Sellers pursuant to this Agreement, and to the other
covenants of the same, the Purchase Price is determined on the basis of the following essential assumptions:
(i) the
Completion Date Net Working Capital is equal to or greater than zero (the “Target Net Working Capital”);
(ii) upon
the Completion Date, NewCo’s Financial Debt is not greater than Eur 2,100,000 (two million one hundred thousand) (“Target
Financial Debt”);
(iii) Muscarella’s
full-time services to the Buyer or NewCo pursuant to Section 15 continue at least until the third anniversary of the Completion
Date.
6.02 Purchase Price Adjustment and
Determination of the Purchase Price
(a) The
Parties agree that the Purchase Price shall be:
(i) decreased
by an amount equal to amount by which the Completion Date Net Working Capital is less than the Target Net Working Capital, if any,
(“Notional Net Working Capital Adjustment”), and;
(ii) further
decreased by an amount equal to the amount by which the Completion Date Debt exceeds the Target Financial Debt, if any (“Debt
Adjustment”),
(the adjustments
pursuant to this paragraph (a) hereinafter collectively “Purchase Price Adjustment”).
(b) If
there is a Purchase Price Adjustment, the Purchase Price shall be determined by decreasing the Provisional Purchase Price pursuant
to Section 6.02(a) and shall therefore be the result of the following formula:
Provisional
Purchase Price
| - | amount of the Notional Net Working Capital Adjustment |
| - | amount of the Debt Adjustment |
(c) The
Parties agree that no adjustment shall be made, and no payment shall be made under Section 6.04(c), in the event the Purchase Price
Adjustment is less then Eur 25,000 (twenty-five thousand).
6.03 Completion Date Balance-Sheet
(a) Within
30 (thirty) Business Days following the Completion Date, the Buyer shall prepare and deliver to the Sellers the Completion Date
Balance-Sheet and its determination of the Completion Date Net Working Capital and the Completion Date Financial Debt and therefore
of the Purchase Price Adjustment.
(b) The
Sellers shall review the Completion Date Balance-Sheet, the Completion Date Net Working Capital, the Completion Date Financial
Debt and the determination of the Purchase Price Adjustment, as delivered pursuant to paragraph (a) above. Should the Sellers disagree
with the determination of any of the Completion Date Net Working Capital or the Completion Date Financial Debt and therefore on
the determination of the Purchase Price Adjustment as delivered pursuant to paragraph (a) above, the Sellers’ Representative
shall notify the Buyer within 30 (thirty) Business Days (the “Objection Period”) following the date of delivery
pursuant to paragraph (a) above, by way of a written notice whereby the Sellers’ Representative indicates the matters on
which they disagree (“Disputed Matters”). If the Sellers’ Representative does not deliver a notice of
disagreement within the Objection Period, the Completion Date Balance-Sheet, the Completion Date Net Working Capital, the Completion
Date Financial Debt, or the Purchase Price Adjustment, as applicable, shall become final and binding on Buyer, Sellers and the
Sellers’ Representative.
(c) In
the event of a Disputed Matter pursuant to paragraph (b), the Buyer and the Sellers’ Representative shall negotiate in good
faith in order to reach a mutually acceptable, final and binding agreement on the determination of the Purchase Price Adjustment.
(d) Should
the Buyer and the Sellers’ Representative fail to reach an agreement on the Disputed Matters pursuant to paragraph (c) above
within 15 (fifteen) Business Days following the Sellers’ Representative’s notice indicated in paragraph (b) above,
the Buyer and the Sellers agree to submit the Disputed Matters to KPMG S.p.A. (provided that, when its services are required, KPMG
S.p.A. is independent from the Parties) (“Expert”), and the following shall apply:
(i) the
Expert shall settle the Disputed Matters. In the case of Section 6.03(a), the Expert shall determine the Purchase Price Adjustment
and in doing so it shall (aa) take into account and reflect any agreement between the Parties; (bb) be limited to deciding each
such Disputed Matter in an amount which shall be equal to or in between the amounts proposed by the Sellers’ Representative
and the Buyer, and no more and no less; (cc) use those items or amounts not disputed by the Sellers’ Representatives in the
notice of disagreement; (dd) determine the Completion Date Net Working Capital or the Completion Date Financial Debt (depending
on the Disputed Matter) by applying the Agreed Accounting Principles; (ee) apply the terms of this Agreement and in particular
Section 6.02; (ff) justify in writing its determinations with respect to each of the Disputed Matters;
(ii) the
Parties, each to the extent within their control, shall allow the Expert to have access to Coord3’s and NewCo's books and
records;
(iii) the
Expert shall deliver its determinations to the Parties in writing within thirty (30) Business Days from the acceptance of the assignment;
(iv) the
determinations of the Expert prepared and delivered in accordance with this paragraph (d) shall be final and binding upon the Parties.
Hence, the Purchase Price Adjustment, calculated on the basis of the Expert’s decision shall be final and binding upon the
Parties;
(v) all
fees and disbursements of the Expert shall be equally borne by the Parties, unless the Expert confirms the determinations of one
Party, in which case the fees and disbursements shall be entirely borne by the other Party;
(vi) the
Expert shall act as an expert (and not as an arbitrator) pursuant to article 1349 1st paragraph of the Italian Civil
Code; and
(vii) should
the Expert decline the appointment or not be independent from the Parties when its services are required or fail to deliver its
determinations within the term indicated in paragraph (d)(iii) above, each Party shall be entitled to request the Chairman of the
Ordine dei Commercialisti of Torino to appoint any other audit firm of international repute, which is not in conflict of
interest with any of the Parties. The audit firm appointed pursuant to this sub-paragraph (vii) shall act as the Expert in accordance
with this paragraph (d).
(e) The
Parties agree that the Completion Date Balance-Sheet shall be prepared and the Completion Date Net Working Capital and the Completion
Date Financial Debt shall be determined by applying the Agreed Accounting Principles.
6.04 Payment of the Purchase Price
(a) The
payments of all portions of the Purchase Price to be paid in cash shall be made by the Buyer to Coord3 by bank wire transfers to
Coord3’s bank account the details of which shall be indicated by the Sellers in writing at least 7 (seven) Business Days
prior to each date on which payments fall due, as indicated in the following clauses of this Section 6.04.
(b) The
Provisional Purchase Price shall be paid to Coord3 upon the execution of the Notary Deed of Transfer as follows:
(i) as
to Eur 1,700,000 (one million seven hundred thousand), to Coord3’s bank account as indicated in paragraph (a) above.
(ii) as
to Eur 300,000 (three hundred thousand), to be credited in the Buyer’s financial records as an Indemnity Holdback Account
and paid to Coord3 as set forth in Section 14.
(c) The
amount of the Purchase Price Adjustment shall be paid by the Sellers to the Buyer if a decrease in the Purchase Price within 10
(ten) Business Days from the date on which the Purchase Price Adjustment has been finally determined, pursuant to Sections 6.02
and 6.03.
(d) No
interest shall accrue on any of the amounts to be paid by either Party pursuant to paragraphs (b) and (c) above, if timely paid.
SECTION 7
Completion – Conditions to Completion
7.01 Completion Date
(a) Completion
shall occur on February 27, 2015 or any other date as agreed between the Parties, subject to the conditions to Completion indicated
in Section 7.03 being satisfied or waived by the interested Parties in writing on or before the Completion Date.
(b) The
Completion session and the execution of the Notary Deed of Transfer shall take place at the office of notary Giovanna Ioli in Torino,
Italy, via Alfieri 17 or any other place as agreed between the Parties.
7.02 Completion
(a) The
Parties, each to the extent within its control, shall consummate or procure the consummation of all of the following actions and
transactions, on or before the Completion Date, as follows:
(i) the
Sellers shall cause the following to occur or have occurred:
(aa) subscription
of the Share Capital Increase and execution of the Deed of Contribution, to be effective on the Completion Date;
(bb) delivery
to the Buyer of a notary certificate which confirms the execution of the Deed of Contribution and that the same is effective on
the Completion Date;
(cc) Muscarella’s
resignation from the office of sole director of NewCo with effect as from the Completion Date together with a statement (in the
agreed form attached hereto as Exhibit 7.02(a)(i)(cc)) whereby he declares to have no and waives any and all rights or claims vis-à-vis
NewCo in relation to his role and duties as director;
(dd) delivery
to the Buyer of a copy of the resignation letter and statement indicated in sub-paragraph (cc) above;
(ee) approval
of a shareholders’ resolution of NewCo (on the Completion Date prior to the execution of the Notary Deed of Transfer) for
the purpose of:
(aaa) appointing
the new directors of NewCo as designated by the Buyer to replace the sole director who will have resigned pursuant to paragraph
(aa);
(bbb) determining
the new directors’ remuneration as agreed with the Buyer;
(ff) delivery
to the Buyer of a written statement whereby the Sellers warrant to the Buyer that, as from the date hereof:
(aaa) the
Target Business has been conducted in accordance with the provisions of Section 8.01;
(bbb) NewCo
has not traded nor transacted any business or assumed any liability or undertaken any obligation;
(gg) delivery
to the Buyer of a written statement whereby the Sellers warrant that the representations and warranties given by the Sellers and
referred to in Section 10.02, Section 2(d), and Section 9(b) are accurate, true and correct as at the Completion Date and as if
given at the Completion Date, and also with respect to NewCo;
(hh) delivery
to the Buyer of a copy of an agreement signed by Riccardo Muscarella and AFS which contemplates the terms and conditions indicated
in Section 13(c);
(ii) delivery
to the Buyer of a written statement with the release of all claims from Sellers in the form attached as Exhibit 7.02(a)(i)(ii);
(jj) delivery
to the Buyer of a written statement whereby all Sellers agree to and confirm the restrictive covenants provided for in Section
13;
(kk) delivery
to the Buyer of a statement whereby Coord3 acknowledges receipt of the Provisional Purchase Price;
(ll) delivery
to the Buyer of the Fire Department Clearance (Certificato Prevenzione Incendi) concerning the Property;
(mm) delivery
to the Buyer of a certified copy of Coord3’s shareholders’ resolution which approved Coord3’s financial statements
as at December 31, 2013.
(nn) Coord3’s
Subsidiaries and Coord3 China Ltd shall sell all of their assets to Buyer or its Affiliates for nominal consideration.
(oo) delivery
of the waiver from Mills of any right which arises from any of the November 2011 Agreements, assignment to Coord3 of all domain
names used by Coord3 in Mills name and a release signed by Mills in a form similar to Exhibit 7.02(a)(i)(ii).
(ii) the
Buyer shall:
(aa) deliver
to the Sellers evidence of the payment, by bank wire transfer, of the Provisional Purchase Price to be paid at the Completion Date.
(iii) the
Sellers and the Buyer shall, each to the extent within their control:
(aa) cause
a resolution of the board of directors of NewCo to be validly approved on the Completion Date with the newly appointed directors,
for the purpose of appointing NewCo’s chairman and managing director and of vesting them with the necessary powers to run
and manage NewCo’s business;
(bb) cause
the execution by the Buyer and Coord3 of the Notary Deed of Transfer;
(cc) cause
the Service Agreements to be entered into and duly executed by the relevant parties;
(b) Completion
shall be deemed to have occurred when all of the actions and transactions indicated in Section 7.02(a) above shall have been duly
consummated or waived by the interested Party.
7.03 Conditions to Completion
(a) Completion
is subject to the following conditions to Completion which shall have occurred or shall have been satisfied or waived by the interested
Party by the Completion Date:
| (a1) | conditions in favor of each of the Buyer and the Sellers: all actions and transactions provided
for in Section 7.02 shall have been consummated or waived by the interested Party in writing; |
| (a2) | conditions in favor of the Buyer: |
(i) the
Target Business, all of its assets and the Shares are free and clear of any Encumbrances;
(ii) no
Material Adverse Change in Coord3, NewCo or the Target Business since the Reference Date;
(iii) the
Buyer (or one of its affiliated companies) has acquired full title to and ownership of the Czech Shares, free and clear of any
Encumbrances;
(iv) Receipt
of Required Consents and the lease agreement between AGO and BNP Paribas Lease Group relating to the Property;
(v) Zeiss
has not withdrawn its waiver of its right of pre-emption nor asserted a right to manufacture under the Cooperation Agreement between
Coord3 and Zeiss;
(vi) no
legal proceedings are pending which are aimed at preventing the Transaction (or any portion thereof) from completing.
(b) Should
any of the conditions indicated in paragraph (a) above not be satisfied or waived by the interested Party by the Completion Date,
the Parties shall be released from the obligation to complete the acquisition of the Shares contemplated by this Agreement, which
shall be deemed terminated.
(c) Should
any of the conditions to Completion provided for in this Section 7.03 not be met or satisfied by the Completion Date due
to one of the Parties’ failure to provide its utmost co-operation for the purpose of the satisfaction of such conditions
or to fulfil the obligations provided for in Section 7.02, termination of this Agreement pursuant to Section 7.03(b) shall be without
prejudice to any remedy the other Party may have under the law or pursuant to this Agreement.
SECTION 8
Pre-Completion Date Covenants
8.01 Management and conduct of NewCo
and of the Target Business
(a) From
the date hereof and until the Completion Date, unless otherwise contemplated by this Agreement or approved by the Buyer in writing,
the Sellers shall cause Coord3 to:
(i) conduct
the Target Business (including managing the working capital, the collection of accounts receivable, the payment of accounts payable)
with due care and diligence in the ordinary and usual course, consistent with past practice as disclosed to the Buyer;
(ii) continue
to insure all insured assets which are part of the Target Business, whether owned or leased, and use, operate, maintain and repair
all such assets in accordance with past practice;
(iii) preserve
its relationships with the employees, self-employed persons, distributors, agents, representatives, suppliers and customers;
(iv) refrain
from acting or omit to act in such way as to cause a material breach of any material agreement, contract, commitment or obligation
of Coord3 which is part of the Target Business;
(v) keep
the facilities, machinery and equipment which are part of the Target Business in normal operating conditions and repair, except
for ordinary wear and tear;
(vi) duly
and timely comply in all material respects with all of its obligations, including the obligations arising from any loan or other
financial commitment;
(vii) give
the Buyer reasonable direct access to management, legal and financial advisors, auditors and documents of the Target Business.
(viii) continue
to maintain its books and records in accordance with all applicable laws and the Italian Accounting Principles.
(ix) provide
to Buyer financial statements for each month prepared by Coord3 for its internal use or for delivery to third parties, if any,
promptly following their preparation, but in no event later than the 20th day following the end of the month.
(b) The
Parties agree (and the Sellers agree to procure) that, from the date hereof and until the Completion Date, decisions by Coord3
concerning the matters listed below shall not be made and shall not be implemented without the Buyer’s prior written consent
(such consent not to be unreasonably denied or delayed):
(i) sale
or disposal of any assets;
(ii) granting
of any rights (including in rem securities) in respect of any of Coord3’s assets or the charging of any of said assets
with any Encumbrances;
(iii) decisions
to incur any indebtedness or to borrow any money (except within the limits of the facilities currently available to Coord3 as disclosed
to the Buyer), or to enter into any factoring or invoice discount agreement;
(iv) extension
of the terms of payment of any payables or other liabilities or of any receivables or discount any receivables;
(v) transactions
(including share capital increase or decrease) which affect the share capital of Coord3;
(vi) the
granting of any rights (including in rem security rights) on any of the shares of NewCo or any further share to be issued
by NewCo and issuance of any bond or other securities;
(vii) decisions
to undertake any capital commitment (purchase or financial / capital lease of fixed or other assets);
(viii) decisions
to enter into any partnership, consortium, association, joint venture agreements;
(ix) change
of the remuneration of or benefits provided to any of the employees or managing director, other than increases required by the
law or by the applicable collective bargaining agreements;
(x) recruitment
of any new dirigente or quadro or promotion of any employee to such levels;
(xi) any
redundancy plan or the dismissal of any dirigente or quadro;
(xii) acquisition
or disposal of equity interests in other entities or of businesses as going concerns or any branches thereof;
(xiii) agreements
with customers or suppliers (including purchase orders) which are outside of the ordinary course of business or (aa) which have
each a value greater than EUR 150,000 as to customers contracts and EUR 150,000 as to suppliers, or (bb) whereby the counterpart
may withdraw or terminate without cause, or (cc) whereby the counterpart may withdraw or terminate for change of control, or (dd)
which provide for restrictions to Coord3’s or any of Coord3’s present or future affiliates’ freedom to operate
in the market, or (ee) whereby Coord3 must give unusual warranties or guarantees, or (ff) which contemplate unusual payment terms
if compared with standard market practice;
(xiv) agreements
with related parties (including shareholders, directors or employees of Coord3 or relatives of the shareholders or of the directors
or employees);
(xv) change
in accounting methods, policies or procedures or presentations of accounts; declaration and distribution of dividends;
(xvi) settlements
of disputes when the overall value exceeds EUR 150,000;
(xvii) guarantees
to secure the obligations of a third party;
(xviii) liquidation;
dissolution; mergers, de-mergers and restructurings;
(xix) real
estate leases;
(xx) permitting
the lapse or forfeiture of intellectual property rights or other intangible assets;
(xxi) fail
to file any tax returns or any other report to any authority as required under the law or any contract by its applicable due date
or fail to pay any taxes that first become due and payable after the date hereof, as and when they first became due and payable;
(xxii) negotiations
for the settlement or compromise, settlements or compromise of any tax liability;
(xxiii) Enter
into or amend any agreement, except for acceptance or placement of purchase orders in the ordinary course of business;
(xxiv) pay
any dividend or distribution;
(xxv) terminate
any material agreement;
(xxvi) taking
any action that would make any of the representations and warranties hereof untrue or failing to take any action that would prevent
any of the representations and warranties from becoming untrue.
8.02 NewCo
From the date of its establishment and
until the Completion Date, unless otherwise contemplated by this Agreement or approved by the Buyer in writing, the Sellers shall
cause NewCo to refrain from trading and transacting any business and they shall ensure that it will not assume any liability or
undertake any obligation.
8.03 Site visits
The Sellers, prior to Completion Date,
shall ensure that representatives of the Buyer are allowed to visit the Property and the manufacturing facilities of Coord3, upon
Buyer’s reasonable request, which shall be made in writing (also via email) at least 2 Business Days before the date of the
visit; in any event, the Buyer hereby acknowledges that the visit on site shall be carried on in a manner which will not unreasonably
disrupt the normal and ordinary activity of Coord3, its directors, managers and employees.
8.04 Tax Certificate
(a) The
Parties acknowledge that, within the context of the Transaction, the Buyer will request the issuance of a Tax Certificate relating
to Coord3.
(b) The
Sellers shall ensure that, upon the Buyer’s request and within 2 (two) days from receipt of such request, Coord3:
(i) grants
its consent – if necessary – for the Buyer to file a request with the competent authorities to obtain the Tax Certificate
relating to Coord3;
(ii) signs
and delivers to the Buyer whatever document or form is necessary for the purposes of paragraph (i).
8.05 Consultation process pursuant
to art. 47 law 29.12.1990 no. 428
(a) The
Parties acknowledge that the transfer of title to and ownership of the Target Business upon the Contribution in Kind as contemplated
by this Agreement requires that a consultation process with the trade unions and the work councils of Coord3 is conducted pursuant
to art. 47 law 29.12.1990 no. 428 (and subsequent amendments).
(b) The
Parties agree:
(i) to
provide their utmost mutual cooperation so that the consultation process is fulfilled in accordance with all statutory provisions
of law:
(ii) that
all phases and steps of this process shall be carried out by mutual consent before the Completion Date. In particular, the contents
of the notice to be given to the trade unions and work councils to open the consultation process as well as the contents of the
agreement at the end of the process (if any) shall be agreed upon between the Parties beforehand.
8.06 Other Pre-Completion Date Covenants
(a) The
Sellers shall ensure that, from the date hereof until the Completion Date, the Buyer will have access to Coord3’s and NewCo’s
books, records, contracts and personnel, upon its reasonable request which shall be made in writing (also via email) at least 2
Business Days before the date of the relevant access, being agreed and understood that such access shall be carried on in a manner
which will not unreasonably disrupt the normal and ordinary activity of Coord3, its directors, managers and employees.
(b) The
Sellers shall take all necessary actions to obtain the Required Consents, so that they are delivered prior to the Completion Date.
(c) During
the term of this Agreement, the Sellers will not, and will cause their respective officers, directors, employees, legal counsel,
accountants, advisors or other consultants or agents to not directly or indirectly, solicit or enter into any agreement or negotiations
with, or furnish information to, any person with respect to any proposal to acquire any of the share capital or a substantial portion
of the assets of Coord3 or to merge or consolidate with Coord3. If the Sellers receive any such proposals, or inquiries regarding
the same, the Sellers shall promptly notify the Buyer of the terms of such proposals or inquiries and the identity of the parties
making the same.
8.07 Next Metrology
Coord3 acknowledges and agrees that it
does not have a legally binding right to require Next Metrology to permit it to sell, license, or distribute TouchDMIS or other
software owned by Next Metrology. This Section 8.07 shall survive the termination of this Agreement.
SECTION 9
Due diligence
(a) Prior
to the execution of the Agreement, the Buyer has conducted a full legal, economic, financial, accounting, commercial, tax, employment,
social security, corporate and environmental due diligence on the Target Business (“Due Diligence”). Without
prejudice to any other term and condition contemplated by this Agreement, on the basis of the outcome of the Due Diligence, the
Buyer has agreed to enter into this Agreement.
(b) The
Sellers warrant and represent that all information and data which the Sellers, the directors, employees or advisors of Coord3 provided
to the Buyer during the Due Diligence process and the negotiations prior to the execution of the Agreement are complete, accurate,
truthful and fairly reflect the financial, economic and business situation of the Target Business and no relevant document and
information has been withheld.
SECTION 10
Representations and warranties
10.01 Buyer’s representations
and warranties.
The Buyer gives the Sellers the representations
and warranties indicated in Exhibit 10.01 and hereby acknowledges that each of such representations and warranties is material
and essential to the Sellers, who are relying on such representations and warranties in entering into this Agreement. For the avoidance
of any doubt, it is agreed that the Buyer’s representations and warranties shall not be affected, limited or diminished by
any knowledge by the Sellers of the matters covered by the representations and warranties.
10.02 Sellers’ representations
and warranties.
The Sellers give the Buyer the representations
and warranties indicated in Exhibit 10.02, and hereby acknowledge that each of such representations and warranties is material
and essential to the Buyer, who is relying on such representations and warranties in entering into this Agreement. For the avoidance
of any doubt, it is agreed that the Sellers’ representations and warranties shall not be affected, limited or diminished
by any investigation (including the Due Diligence) up to this date or hereafter made by the Buyer (directly and through its advisors)
with respect to NewCo, the Shares, the Target Business, its assets, liabilities and properties or by any knowledge by the Buyer
of the matters covered by the representations and warranties. As of the date of this Agreement, the Buyer’s representatives,
Jeffrey Armstrong or Keith Marchiando, do not have actual conscious awareness of any mistake, inaccuracy or breach of the representations
and warranties of Sellers in this Agreement.
SECTION 11
Indemnification
11.01 Sellers’ indemnification
obligation
(a) General
(i) The
Sellers shall indemnify the Buyer from and against any and all liabilities, reduced value of the assets, losses, damages, costs,
penalties, deficiencies, of the Target Business or incurred in or suffered by NewCo resulting or deriving from any mistake, inaccuracy
or breach of any of the representations and warranties made or given by the Sellers in Section 10, Section 2(d) and Section 9(b)
or confirmed by the Sellers at the Completion Date pursuant to Section 7.02(a)(i)(gg) (“Losses” and each a “Loss”).
(ii) The
indemnification obligation provided for in this Section 11.01 shall extend to all costs, expenses (including reasonable attorney’s
fees and experts’ costs) and disbursements incurred by the Buyer in enforcing its rights in respect of a claim under this
Agreement and/or by NewCo in enforcing its rights and in resisting any Third Party Claim.
(iii) The
amount of a Loss shall be reduced by the amount of any specific provision made in the Completion Date Net Working Capital against
the risk which resulted in the relevant Loss.
(iv) The
Parties agree that any payments due by the Sellers as indemnification shall be made by the Sellers directly to the Buyer, unless
the Buyer gives instructions to the Sellers to make such payments directly to NewCo.
(v) The
Sellers shall be under no obligation to indemnify the Buyer under this Section 11.01 for any Loss in relation to which, by the
time the payment by the Sellers is due, either the Buyer or NewCo receives compensation, indemnification or reimbursement by third
parties (including insurance companies), without recourse, to the extent of such compensation, indemnification or reimbursement.
(vi) The
Sellers and the Buyer expressly agree (aa) that the direct and strict object of the sale contemplated by this Agreement is the
Shares themselves rather than the underlying net assets of NewCo; (bb) hence, the provisions of Section 10 (Representations and
Warranties), Section 2(d), Section 9(b) and Section 11 (Indemnification) are autonomous representations, warranties and indemnities.
(b) Limitations
to the Sellers’ liability
(i) The
Sellers shall only be liable to the Buyer under this Section 11.01 for any Losses if the aggregate amount of the Losses exceeds
Eur 50,000 (fifty thousand), in which case the Sellers shall be liable only for the excess amount.
(ii) The
Sellers shall be liable to the Buyer under this Section 11.01 for Losses up to a maximum aggregate amount equal to Eur 600,000
(six hundred thousand) (the “Indemnity Cap”).
(iii) The
limitation to the Sellers’ liability provided for in paragraphs (b)(i) and (b)(ii) above shall not apply to Losses resulting
or deriving from any mistake, inaccuracy or breach of any of the representations and warranties relating to authority, good standing,
title to the shares and the Target Business, regulatory compliance, damages to public authorities/entities (danno erariale),
Encumbrances or Coord3 Income Taxes.
(iv) The
Parties agree that any event or circumstance disclosed by the Sellers in Exhibit 10.02 will exclude the Sellers’ liability
under this Section 11.01 as to the Losses which specifically relate to the disclosure.
(c) Time
limits to Sellers’ liability
The Sellers shall not be liable
to the Buyer under this Section 11.01 in respect of any Loss if the relevant Indemnification Claim is notified to the Sellers after:
(aa) the
20th (twentieth) Business Day after the date of expiration of the relevant statute of limitation (termine di prescrizione),
as to Losses referred to in paragraph (b)(iii) above;
(bb) the
20th (twentieth) Business Day after the 3rd (third) anniversary of the Completion Date, for Losses relating
to any employment matters;
(cc) the
20th (twentieth) Business Day after 18 months from the Completion Date, for Losses relating to any matters other than
those indicated in sub-paragraphs (aa) and (bb).
11.02 Buyer’s indemnification
obligation
(a) The
Buyer shall indemnify the Sellers from and against all losses, damages, costs and penalties incurred in, or suffered by the Sellers,
resulting or deriving from any mistake, inaccuracy or breach of any of the representations and warranties made or given by the
Buyer in or pursuant to Section 10.
(b) The
provisions of Section 11.01 (including those concerning liability limitations) shall apply to the indemnification obligations of
the Buyer herein, as applicable.
11.03 Indemnification procedure
(a) Whenever
an event or circumstance which could give rise to an Indemnification Claim (including a Third Party Claim) (“Indemnity
Event”) occurs for which a Party may seek indemnification under this Section 11, the Party seeking indemnification (“Indemnified
Party”) shall notify in writing the Party from which indemnification is sought (“Indemnifying Party”)
(and, for a Third Party Claim, within 120 (one hundred twenty) days after the Indemnified Party has actual knowledge of the Indemnity
Event) (“Notice of Claim”). The Notice of Claim shall specify relevant facts known to the Indemnified Party
giving rise to the Indemnification Claim, the amount of the Loss and the request for indemnification. The Parties agree that in
case an indemnification is requested by the Buyer to the Sellers, Notice of Claim may also be validly served by NewCo.
(b) Notwithstanding
the above, no claim shall be made by the Indemnified Party against the Indemnifying Party under this Agreement in respect of any
matter or liability to the extent that:
(i) it
has been paid or satisfied on or before the Completion Date where that payment or satisfaction is reflected in the Completion Date
Net Working Capital;
(ii) to
the extent that provision or reserve was made for it in the Completion Date Balance-Sheet;
(iii) it
would not have arisen or occurred but solely by reason of an action or omission of the Indemnifying Party specifically required
to be taken by them under this Agreement;
(iv) it
would not have arisen or occurred but solely for an act, omission or transaction of the Indemnified Party or any of its respective
directors, employees or agents;
(v) it
would not have arisen or would have been reduced (to the extent of the relevant reduction) or eliminated but solely for the failure
or omission on the part of the Indemnified Party to make any claim, election, surrender or disclaimer or to give any notice or
consent or to do any other thing under the provisions of any relevant legislation.
(c) If
the Indemnity Event is a Third Party Claim against NewCo, the following shall apply:
(i) the
Buyer shall cause NewCo to diligently take all reasonable defensive steps;
(ii) in
the defense against the Third Party Claim, the Buyer shall cause NewCo to consult with the Sellers’ Representative;
(iii) NewCo’s
management and/or the Buyer shall inform the Sellers about the status of the relevant matter and about any developments in connection
with the Third Party Claim;
(iv) in
any event, the Buyer shall not agree to any settlement of the Third Party Claim or to any waiver related thereto, without the prior
written consent of the Sellers, not to be unreasonably withheld or delayed and which shall be considered as granted absent response
within 30 (thirty) Business Days (or such shorter term required by the circumstances) following written request from the Buyer
to the Sellers. Should the Sellers deny their approval, as a condition to the effectiveness of such denial, (aa) they shall specify
the reasons for the denial in writing, and (bb) they shall be liable for the relevant Loss, including the immediate payment of
all costs incurred to defend such Third Party Claim as they are incurred by Indemnified Party.
(v) the
relevant indemnification obligations shall survive until the Third Party Claim has been finally resolved.
(d) Payments
of all amounts due by the Indemnifying Party pursuant to this Section 11 shall be made as follows:
(i) if
the Indemnity Event is a Third Party Claim against NewCo, payments shall be made within 15 (fifteen) Business Days from receipt
of the Buyer’s written request, which shall bear a copy:
(aa) of
the enforceable decision, award or order, whether final or provisional, served upon NewCo and which ascertains or determines the
Loss; or
(bb) of
the settlement agreement entered into by NewCo which determines a Loss.
In any
event, if either the Buyer or NewCo elect to settle the matter related to a Third Party Claim notwithstanding the timely denial
in writing of the Sellers of the approval of such settlement as provided above, no obligation of payment shall arise for the Sellers;
(ii) in
case of an Indemnity Event other than a Third Party Claim against NewCo, within 10 (ten) Business Days from receipt of the Notice
of Claim; provided that Sellers have not objected in writing to such Notice of Claim within such 10 (ten) Business Day period (“Notice
of Objection). Any such Notice of Objection shall state the nature and basis of any such objection and the monetary amount of the
claim in dispute. Payment of such claim shall be made by Sellers, together with interest thereon from the date of the original
Notice of Claim until the date paid, at the interest rate set forth in Section 17.12, within 15 (fifteen) business days from receipt
of the Buyer’s written request, which shall bear:
(aa) a
certified copy of an award (whether final or provisions) by the arbitral tribunal referred to in Section 18.02 which ascertains
or determines that the Sellers are liable for the claim; or
(bb) a
copy of the settlement agreement entered into between Buyer and Sellers which determines the amount that Sellers must pay relating
to the claim.
SECTION 12
Further covenants and specific indemnities
of the Sellers
12.01 General
The Parties agree that:
(i) for
the avoidance of any doubt, the Sellers’ indemnification obligations provided for in this Section 12 shall not be subject
to Section 11 nor to the same restrictions, limitations and procedure therein, except as otherwise specifically provided herein;
(ii) any
payments due by the Sellers pursuant to this Section 12 shall be made by the Sellers directly to the Buyer, unless the Buyer gives
instructions to the Sellers to make such payments directly to NewCo.
12.02 Sole Director’s Claims
The Sellers shall indemnify and hold the
Buyer and NewCo harmless from and against any claim (and any consequence thereof) by the sole director of NewCo who was in office
at any time up to Completion, in relation to matters relating to the period up to Completion.
12.03 Subsidiaries – China
(a) The
Sellers shall indemnify and hold the Buyer and NewCo harmless from and against any liabilities, reduced assets, losses, damages,
costs, penalties, deficiencies, incurred in or suffered by NewCo or any claim (and any consequence thereof) deriving from or however
connected to the interests and shares held by Coord3 in any of the Subsidiaries (including as a consequence of any claim raised
by any third party or any of their employees against any such Subsidiary) or to Coord3’s being a party to any agreement with
the other shareholders of the Subsidiaries, if any.
(b) The Sellers shall indemnify and hold the Buyer and NewCo harmless from and against any liabilities, reduced assets, losses,
damages, costs, penalties, deficiencies, incurred in or suffered by NewCo or any claim (and any consequence thereof) deriving
from or however connected to Coord3’s operations in the People’s Republic of China (including those however
connected to Coord3’s Chinese representative office or prior joint venture with Purein Ltd).
12.04 Coord3
(a) If,
after Completion, any third party (including public authorities or government agencies) raises any claim, demand any payment or
asserts any right against Coord3, whether prior to or during a liquidation process should Coord3 undergo such a process, the Sellers
shall:
(i) immediately
and, in any case, within 5 (five) Business Days from receipt of the claim, inform the Buyer in writing and they shall provide the
Buyer with all relevant information regarding the nature of the claim, the amount, the third party’s asserted grounds for
the claim and any possible counterargument or counterclaim;
(ii) at
their own costs and expenses, ensure that Coord3 resists against the claim as necessary;
(iii) fund
Coord3 so that it can timely and duly fulfil any obligations arising from such claims;
(iv) cause
Coord3 to timely and duly fulfil any obligations arising from such claims.
(b) Should
Coord3 lack the financial resources to fulfil any obligations arising from any of the claims referred to in paragraph (a) above,
the Buyer may elect, at its own discretion, to assume the liability and pay the relevant third party or cause NewCo or any other
of its affiliated companies to do so.
(c) The
Sellers shall indemnify the Buyer (or NewCo or any other of its affiliated companies as the case may be and as directed by the
Buyer) of any amount paid by the Buyer (or NewCo or any other of its affiliated companies as the case may be) pursuant to paragraph
(b) above and against any losses, damages, costs suffered or incurred as a consequence thereof. For the avoidance of any doubt,
the Sellers’ indemnification obligations provided for in this Section 12.04 shall not be subject to Section 11 nor to the
same restrictions, limitations and procedure therein.
(d) The
Sellers shall indemnify Buyer (or NewCo or any other of its affiliated companies, as the case may be, and as directed by the Buyer)
for any liability incurred by it for Coord3’s Taxes, including, but not limited to, Coord3 Income Taxes, other than the Government
Debt or Taxes included in Completion Date Net Working Capital.
12.05 Trade-names, trademarks and
other intellectual or industrial property
(a) The
Sellers shall cause Coord3 to change its name as soon as practically possible after the Completion Date and, in any case, within
15 (fifteen) days thereafter, so as to remove any reference to “Coord3”; and, at the written request of Buyer, to cause
its Subsidiaries to remove reference to “Coord3” in their names; provided that Buyer shall permit Coord3 to continue
to use its name and the names of its Subsidiaries to the extent reasonably required by Coord3 and its Subsidiaries to collect any
accounts receivable they retain and to wind up their business activities.
(b) The
Sellers shall not use or attempt to use, in the course of any business on their own account or in conjunction with or on behalf
of any person or in any other manner whatsoever, directly or indirectly, the trade-names, trademarks, service marks, brand names,
designs or logos, domain names and any other similar intellectual property, whether registered or not, or any other trade-name,
trademark, service mark, brand name, design or logo similar to such trade-names, trademarks service marks, brand names, designs,
logos, domain names or other similar intellectual property of NewCo (including the name Coord3 whether used as a standalone name
or in association with other names).
12.06 Apportionments
(a) All
rents, rent charges, leasing expenses, rates, insurance premiums, gas, water, electricity and telephone charges, royalties and
any other costs and expenses of any nature whatsoever relating to or payable or accruing in respect of the Target Business shall
be borne by Coord3 through to the date of contribution and shall be borne by NewCo as from the date of contribution. All the above
items shall, as appropriate, be apportioned accordingly between Coord3 and NewCo.
(b) All
salaries, wages and other emoluments and all contributions in respect of the Target Business for which Coord3 is liable as an employer
in respect of any employee, agent or consultant under any contractual or statutory obligation shall be borne by Coord3 through
to the date of contribution and shall be borne by NewCo as from the date of contribution.
(c) The
Parties agree that any payment made by third parties to a Coord3 bank account relating to the Target Business after the date of
contribution shall be forwarded to NewCo within 15 (fifteen) Business Days after the actual cash is received by Coord3. Similarly,
any payment made by third parties to a NewCo bank account relating to Coord3’s activities after the date of contribution
shall be forwarded to Coord3 within 5 Business Days after the actual cash is received by NewCo.
12.07 Further indemnities
(a) The
Sellers shall indemnify and hold the Buyer harmless against any liabilities, losses, damages, costs which are the consequence of
any claim indicated on Appendix B to Exhibit 1.03.
(b) Payments
of the Sellers’ indemnification obligations provided for in this Section 12.07 shall be subject to the restrictions, limitations
and procedures set forth in Section 11, including being included in the calculation of the Indemnity Cap, to the extent provided
for therein.
SECTION 13
Restrictive Covenants
(a) The
Sellers agree that, as from the Completion Date and for a period of 3 (three) years thereafter (or in the case of Muscarella, for
the period of time until the expiration date of any restrictive covenants provided for in their relevant Service Agreements, if
shorter), in their capacity as sellers of the Shares and irrespective and without prejudice to any other restrictive covenant they
have agreed or will agree to, they shall not:
(i) either
on their own account or in conjunction with or on behalf of any person, carry on, engage, be concerned or interested (directly
or indirectly and whether as principals, shareholders, directors, employees, agents, distributors, consultants, partners or otherwise)
in the business of designing, engineering, manufacturing, marketing, selling, installing, servicing and maintaining CMMs and laser-based
and other technology, software and applications used in connection with CMMs;
(ii) either
on their own account or in conjunction with or on behalf of any person, solicit or endeavour to entice away from the Target Business
or the Company any person who, at the Completion Date, is an officer, manager, employee, self-employed person, consultant of Coord3
and who is in any manner whatsoever associated to the Target Business, whether or not such person would commit a breach of contract
by reason of leaving service or office;
(iii) either
on their own account or in conjunction with or on behalf of any person, endeavour to entice away from the Target Business or the
Company any person who, at the Completion Date of this Agreement, is a customer of Coord3, whether or not such customer would be
in breach of its contract with Coord3 or – after Completion – with the Company as a result thereof; and
(iv) either
on their own account or in conjunction with or on behalf of any person, endeavour to entice away from the Target Business or the
Company any person who, at the Completion Date, is a supplier of Coord3, whether or not such supplier would be in breach of its
contract with Coord3 or – after Completion – with the Company as a result hereof;
(v) either
on their own account or in conjunction with or on behalf of any person, carry on, engage, be concerned or interested (directly
or indirectly and whether as principals, shareholders, directors, employees, agents, distributors, consultants, partners or otherwise)
in any business conducted by the Company at the Completion Date, or in any business involving the design, development, manufacture,
sale or servicing of CMMs.
(b) The
Sellers and the Buyer represent to each other and acknowledge that the provisions contained in Section 13(a) are necessary for
the protection of the Buyer’s and the Target Business’ interests and goodwill. Should any such restriction or undertaking
be void or voidable but would be valid and enforceable if some part or parts of the restriction or undertaking were deleted or
modified, such restriction or undertaking shall apply with such deletion or modification as may be necessary to make it valid and
enforceable. The consideration for the Sellers’ fulfilment of the obligations contained in this Section 13 has been included
in the Purchase Price.
(c) The
foregoing restrictive covenants shall not prohibit Riccardo Muscarella from owning and operating AFS srl (“AFS”);
provided that (i) Riccardo Muscarella and AFS agree, in writing, that during the term of the restrictive covenants set forth above,
they shall (A) comply with the restrictive covenants set forth in Section 13(a) as though they were Sellers, and (B) they shall
limit their business activities to activities which are not in competition with the activities currently conducted by the Buyer
and its Affiliates and, particularly, may engage in business activities relating to servicing, retrofitting, refurbishing and commercialising
used CMMs and related equipment and to calibrating CMMs and (ii) Muscarella is not interested in AFS, directly or indirectly and
whether as a principal, shareholder, director, employee, agent, distributor, consultant, partner or otherwise.
SECTION 14
Indemnity Holdback Account
(a) The
Buyer shall credit, by book entry only, to an escrow ledger account (“Indemnity Holdback Account”) maintained
by Buyer a portion of the Provisional Purchase Prices equal, in the aggregate, to Eur 300,000 (three hundred thousand) (“Indemnity
Holdback Amount”). The Indemnity Holdback Amount shall serve the purpose to secure the Sellers’ timely fulfillment
of all of their obligations as arising from this Agreement (including the indemnification obligations provided for in Sections
11 and 12, the indemnification obligations deriving from any breach of the obligations arising from Section 13 (as confirmed pursuant
to Section 7.02(a)(i)(jj)) and the obligation to refund the amount paid by the Buyer in excess, pursuant to Section 6.04(c)).
(b) Any
remaining balance in the Indemnity Holdback Account shall be paid by Buyer to Coord3 (or pro-rata to its shareholders in the event
that the liquidation process of Coord3 is already completed at the date on which the payment of the Indemnity Holdback Account
falls due) upon expiration of the Indemnity Holdback Account, provided that, if claims which may trigger Seller’s obligations
to indemnify are pending upon the expiration date:
(aa) the
term will be extended until these claims are resolved;
(bb) an
amount equal to the lower of the balance of the Indemnity Holdback Account and the aggregate amount of the outstanding claims
upon the expiration of the Indemnity Holdback Account will be frozen in the Indemnity Holdback Account until these claims are
resolved.
(c) Except
as otherwise provided in Section 14(b), the Indemnity Holdback Account shall expire on the 20th Business Day after
the eighteen month anniversary of the Completion Date.
(d) The
following amounts shall be credited against and so reduce the Indemnity Holdback Account:
(i) amounts
mutually agreed upon by the Buyer and Coord3;
(ii) amounts
set forth in a certified copy of any award (whether final or provisional) by the arbitral tribunal referred to in Section 18.02
which orders the Sellers to indemnify the Buyer (or NewCo), but only to the extent of the amount to be paid by the Sellers as
indicated in the relevant award;
(iii) at
the written request of the Buyer, within 10 (ten) days following the final determination of the Purchase Price Adjustment, an
amount equal to any Purchase Price Adjustment payable by the Sellers.
SECTION 15
The Service Agreements
(a) For
the purposes indicated in Section 2(c), Muscarella agrees to provide his full-time services to the Company (as agreed between the
Parties) until at least the third anniversary of the Completion Date upon the terms and conditions of the agreement attached herewith
in agreed form as Exhibit 15(a) (“Muscarella Service Agreement”).
(b) The
Parties, each to the extent within their control, shall cause the Service Agreements to be entered into and duly executed by the
relevant parties on the Completion Date.
SECTION 16
Termination
(a) The
Parties acknowledge that any material breach by the Sellers of any of the obligations provided for in Section 8.01 or any breach
of Sections 8.02, 8.03, 8.04, 8.05, or 8.06, which shall be deemed material, shall entitle the Buyer to terminate this Agreement
with immediate effect by way of written notice.
(b) The
Buyer shall further be entitled to terminate this Agreement with immediate effect by way of written notice:
(i) in
case any material breach of any of the representations and warranties given by the Sellers pursuant to this Agreement occurs prior
to or on the Completion Date;
(ii) in
case either Party receives an order or other enforceable instrument issued by any Governmental Authority which enjoins that Party
to refrain from executing any document or taking any action required for Completion pursuant to this Agreement or the law.
(iii) if
the amount of the Government Debt exceeds Eur 7,100,000.
SECTION 17
Miscellaneous
17.01 Compliance
(a) The
Parties acknowledge that, as from the Completion Date, NewCo shall adopt and implement organisational and internal audit and control
models and procedures in compliance with those applied by the group to which the Buyer belongs, including its ethical rules, compliance,
anti-bribery, anti-corruption and anti-money laundering regulations. The Sellers shall provide their utmost assistance and support
in the process which will be required to implement such models and procedures so as to guarantee as swift an integration of the
Target Business into the Buyer’s group as possible after Completion.
(b) Furthermore,
the Parties acknowledge that in due course after the Completion Date, NewCo shall adopt and apply an organizational model which
shall comply with Italian Legislative Decree 231/2001.
17.02 Confidentiality
(a) Each
of the Sellers and the Buyer shall at all times keep strictly confidential and, as applicable, each of the Sellers and the Buyer
shall procure that their respective officers, employees and professional advisers keep strictly confidential any information pertaining
to this Agreement (including but not limited to the Purchase Price and terms of sale) and the financials, business operations,
marketing practices or policies, litigation, identity of customers as well as any other confidential aspect of the Target Business,
except for such information relating to this Agreement which Buyer and its Affiliates may be required to disclose in connection
with reporting and disclosures requirements of the Buyer and its Affiliates under applicable law or the rules of The Nasdaq Stock
Market and except for any such information which:
(i) at
the time of disclosure is publicly available or becomes publicly available otherwise than, directly or indirectly, through the
breach by any of the Sellers or the Buyer of this Section 17.02 or the failure of any officer, employee or professional adviser
referred to above to keep the same confidential; or
(ii) is
required to be disclosed by any other applicable law or by any supervisory or regulatory body, in which case the Party shall inform,
to the extent reasonably practicable, the other Party that such disclosure is required, and the Parties shall use their reasonable
efforts to agree in good faith on the content of such disclosure prior to it being made.
(b) The
Sellers acknowledge that an Affiliate of the Buyer is listed on The Nasdaq Stock Market and its stock is registered with the Securities
and Exchange Commission and is therefore subject to strict regulatory obligations in relation to the disclosure of any information
and data concerning transactions similar to the Transaction. Therefore, the Sellers agree that any public disclosure of any information
or data concerning the Transaction, including any press release, shall be made only at such time and in such form and substance
as acceptable to the Buyer.
17.03 Entire agreement and amendments
(a) This
Agreement is the sole and entire agreement between the Parties governing the Transaction as contemplated herein and supersedes
all prior verbal and/or written agreements between the Parties concerning its subject matter.
(b) The
amendments to this Agreement shall be valid and effective if agreed upon by the Parties in writing.
17.04 Successors - Assignment
This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the Parties and their respective permitted assignees, heirs or successors.
Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by one Party without the prior
written consent of the other, without prejudice to the Buyer’s appointment pursuant to Section 5(d) and the consequences
thereof and except for any assignment to any of that Party’s Affiliates or to a party who acquires all or substantially all
of the assets of NewCo or Buyer, provided that such assignment shall not relieve Buyer of its obligations under this Agreement
without the prior written consent of the Sellers’ Representatives.
17.05 The Sellers’ Representative
The Sellers hereby appoint Muscarella as
their representative (“Sellers’ Representative”) to act in the name and on behalf of each of them for
the purpose of receiving any communication or notification under this Agreement. Any notice to be made to the Sellers and any appointments,
approvals, consents to be made by the Buyer under or in relation to this Agreement (including the service of any judicial deed,
the Notice of Claim, the notices required to be made for the purposes of Sections 6.03) shall be validly made to all Sellers also
if made to the Sellers’ Representative at the address indicated in Section 17.06 or at any other address indicated by the
Sellers’ Representative in accordance with Section 17.06. For the purposes herein, all Sellers elect domicile at the Sellers’
Representative’s address as indicated in Section 17.06. It is agreed that “the Sellers” shall be construed as
meaning the “Sellers’ Representatives” for any notice to be received under this Agreement.
17.06 Notices
Any communication or notice required or
permitted to be given under this Agreement shall be made in writing and in the English language by way of either registered mail
or telefax, addressed, in each case, to the addresses indicated below (or to such other address as each Party may hereafter provide
to the other by written notice as provided herein) and with a copy by e-mail and it shall be deemed to have been duly and validly
given: (i) in case of notice sent by registered mail, upon receipt of the same; and (ii) in case of notice sent by telefax, upon
acknowledgement of successful and complete transmission by the fax machine of the sender:
if to Buyer:
c/o Perceptron, Inc.
47827
Halyard Drive
Plymouth,
MI 48170
U.S.A.
Fax
No. +1-734-414-4800
Attention:
Jeffrey M. Armstrong, President
e-mail: armstrong@perceptron.com
with a copy (which shall not constitute
notice) to:
Thomas S. Vaughn
Dykema Gossett PLLC
400 Renaissance Center
Detroit, MI 48243
U.S.A.
Fax No.: +1-313-568-6915
e-mail: tvaughn@dykema.com
if to the Sellers:
to the Sellers’ Representative:
Angelo Muscarella
c/o
Avv. Luca Mastromatteo, Esq.
Gianni, Origoni, Grippo, Cappelli &
Partners
Corso Vittorio, Emanuele II, 83
10128 Torino, Italy.
Fax: +39-011 5185932
lmastromatteo@gop.it
with a copy (which shall not constitute
notice) to:
Avv. Luca Mastromatteo, Esq.
Gianni, Origoni, Grippo, Cappelli &
Partners
Corso Vittorio, Emanuele II, 83
10128 Torino, Italy.
Fax: +39-011 5185932
lmastromatteo@gop.it
17.07 Language
This Agreement is entered into in the English
language. The Parties hereby acknowledge to have fully understood its content and all of its terms and conditions.
Il presente contratto è stipulato
in lingua inglese. Le Parti dichiarano di aver pienamente compreso il suo contenuto e tutti i suoi termini e condizioni.
17.08 Severability
If any provision of this Agreement is held
to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Agreement, such provision
shall be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part of this Agreement and the remaining provisions of this Agreement shall remain in full force and effect
and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore,
in lieu of each such illegal, invalid, or unenforceable provision, a provision as similar in terms to such illegal, invalid
or unenforceable provision as may be possible and be legal, valid and enforceable shall be added automatically, as a part of this
Agreement.
17.09 Fees and expenses
(a) Except
as otherwise expressly provided for by this Agreement, all legal and other advisors’ fees, costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be borne by the Party incurring such fees, costs
or expenses.
(b) All
stamp duties, registration taxes and notary fees relating to the transfer of the Shares pursuant to Section 5(b) shall be borne
by the Buyer.
17.10 Obligations of the Sellers:
general clause
(a) All
of the obligations and covenants of the Sellers under this Agreement are undertaken and all representations and warranties are
given by them both jointly and severally.
(b) Muscarella
hereby agrees to cause Coord3 to duly and timely fulfill all of the obligations arising from this Agreement.
17.11 Set-off
(a) The
Buyer shall be entitled to offset any portion of the Purchase Price which is unpaid at any time and any amount otherwise due to
any of the Sellers under this Agreement against any amount due by any of the Sellers to the Buyer (or to NewCo) under this Agreement.
The exercise in good faith of such right of setoff by Buyer will not constitute a breach or default under any agreement, including
this Agreement, pursuant to which such payment is due. Neither the exercise of nor the failure to exercise such right of setoff
will constitute an election of remedies or limit Buyer in any manner in the enforcement of any other remedies that may be available
to it. As a condition to any assignment by any Seller of its rights under this Agreement, such assignee must agree that Buyer may
continue to exercise its right of set off against any portion of the Purchase Price assigned to assignee for claims by Buyer against
Sellers arising under this Agreement.
(b) Any
amount collected by NewCo after Completion on NewCo trade accounts receivable outstanding on the Completion Date in excess of the
amount of such trade account receivable as used in calculating the Completion Date Net Working Capital (net of any specific allowance
for uncollectibility of the account included in the calculation of the Completion Date Net Working Capital), up to Eur 300,000
(three hundred thousand), (the “Collected Receivables Amount”) shall be offset by the Buyer against amounts
otherwise due by the Sellers to Buyer under Sections 11 or 12 of this Agreement, but in no event shall Buyer be required to pay
Sellers any such Collected Receivables Amounts.
17.12 Interest Rate
Should any payment due under this Agreement
by either Party not be made on or before the agreed term for payment, annual interest equal to EURIBOR 3 months plus 500 basis
points (or the maximum percentage allowed by anti-usury laws and regulations from time to time, if lower) will accrue from the
date of expiration of the payment term until the actual payment is provided.
SECTION 18
Governing Law – Arbitration
18.01 Governing
Law
This Agreement shall be governed by and
construed in accordance with the laws of the Republic of Italy, without regard to the provisions governing conflicts of laws.
18.02 Arbitration
(a) Any
dispute arising out of or related to this Agreement shall be settled by arbitration under the Rules of Arbitration of the International
Chamber of Commerce of Paris, by three arbitrators, appointed in accordance with such rules, who shall be fluent in the English
language.
(b) The
place of the arbitration shall be Paris, France. The language of the arbitration shall be English.
(c) Any
dispute arising out of this Agreement and any comparable dispute arising out of the Czech Agreements shall be heard and decided
together in a single arbitration proceeding.
[Signature Page Follows]
SIGNED by ANGELO MUSCARELLA
Signature |
: /s/ Angelo Muscarella |
SIGNED by COORD3 INDUSTRIES S.R.L.
Angelo Muscarella
Sole director
Signature |
: /s/ Angelo Muscarella |
SIGNED by PERCEPTRON CMM, LLC
Jeffrey M. Armstrong
President and Chief Executive Officer
Signature |
: /s/ Jeffrey M. Armstrong |
EXHIBIT 1.03
Certain Definitions
“2013 Financial Statements” |
shall mean the financial statements of Coord3 as at December 31, 2013 as finally approved by the shareholders. |
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“Affiliates” |
shall mean persons controlling, controlled by or under common control with the person. |
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“AGO” |
shall mean AGO Renewables s.p.a. |
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“AFS” |
shall have the meaning indicated in Section 13(c). |
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“Agreed Accounting Principles” |
shall mean the Italian Accounting Principles
and, to the extent properly applied, consistent with past application thereof by Coord3.
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“Agreement” |
shall mean this agreement, inclusive of the Exhibits, Appendices and Annexes. |
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“Annexes” |
shall mean all annexes, as listed above in the table of contents. |
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“Appendices” |
shall mean all appendices, as listed above in the table of contents. |
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“Appraiser” |
shall have the meaning indicated in Section 4.01(i). |
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“Appraisal” |
shall have the meaning indicated in Section 4.01(i). |
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“Appraisal Financial Situation” |
shall have the meaning indicated in Section 4.02(a)(ii). |
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“Business Day/s” |
shall mean each calendar day other than Saturdays, Sundays and any other days on which banks are closed for business in the City of Torino, Italy. |
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“Buyer” |
shall have the meaning indicated in the headings of this Agreement. |
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“Collected Receivables Amount” |
shall have the meaning indicated in Section 17.11(b). |
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“Company” |
shall mean the Buyer, NewCo and their Affiliates. |
“Completion” |
shall mean the consummation of all of the actions and transactions indicated in Section 7.02 (unless waived by the interested Party) and the completion of the transfer of full title to and ownership of the Shares to the Buyer as contemplated in this Agreement. |
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“Completion Date” |
shall mean the date upon which Completion will take place, as specified in Section 7.01(a). |
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“Completion Date Balance-Sheet” |
shall mean the balance-sheet of NewCo as at the Completion Date, after the acquisition of the Target Business, to be prepared in accordance with the Agreed Accounting Principles. |
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“Completion Date Financial Debt” |
shall mean the Financial Debt of NewCo as at the Completion Date, after the acquisition of the Target Business. |
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“Completion
Date Net Working Capital” |
shall mean the Notional Net Working Capital of NewCo as at the Completion Date, after the acquisition of the Target Business, to be determined in accordance with the Agreed Accounting Principles. |
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“Contribution in Kind” |
shall have the meaning indicated in Section 2(a)(ii). |
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“CMM” |
means coordinate measuring machine and equipment. |
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“Coord3” |
shall have the meaning indicated in the headings of this Agreement. |
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“Coord3 Income Taxes” |
shall mean Taxes based upon or related to Coord3’s income, production or value added taxes, not yet subject to installment agreements with the Italian government, including, but not limited to IRES and IRAP for 2013 and 2014. |
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“Current Business” |
shall have the meaning indicated in Section 34 of Exhibit 10.02. |
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“Czech Agreements” |
means the Stock Purchase Agreements between Perceptron, Inc. and each of Keith Mills and Angelo Muscarella, dated even date with the Agreement. |
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“Czech Shares” |
shall mean 100% of Next Metrology’s share capital. |
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“Debt Adjustment” |
shall have the meaning indicated in Section 6.02(a)(ii). |
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“Deed of Contribution” |
shall have the meaning indicated in Section 4.01(iv). |
“Deed of Establishment” |
shall have the meaning indicated in Section 3(ii). |
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|
“Designated Notary” |
shall have the meaning indicated in Section 3(ii). |
|
|
“Disputed Matters” |
shall have the meaning indicated in Section 6.03(b). |
|
|
“Due Diligence” |
shall have the meaning indicated in Section 9(a). |
|
|
“Encumbrance” |
shall mean any mortgage, charge, pledge, lien, security interest or attachment of any nature whatsoever, options, title retention, third party rights (including in rem rights) or other securities or de facto situations attached to a certain object or asset or share and limiting the rights thereupon. “Encumbrances” shall be construed accordingly. |
|
|
“Environmental Law” |
shall mean all applicable international treaties, laws, conventions, EU directives or regulations, statutes, regulations, subordinate legislation (in particular any regional, provincial municipal and other local law and/or regulation), applicable in Italy, which from time to time relate to Environmental Matters and Environmental Licences and all enforceable orders or other instruments and other requirements of or issued by any competent public authority, court or agency, concerning the protection of the environment or the prevention, limitation, mitigation or remediation of harm to the environment or relating to Environmental Matters. |
|
|
“Environmental License” |
shall mean any permit, licence, authorization, consent or other approval, registration, notification or communication required by any Environmental Law for the operations of Coord3 or NewCo or of its business or in relation to the ownership, lease, occupation or use of the properties used for the operations of the Company or of its business. |
|
|
“Environmental Matters” |
shall mean all or any of the following: air (including all layers of atmosphere), water and land (including, without limitation, any of the foregoing within buildings and other material or man-made structures above or below the ground) as well as all organic and inorganic matter and living organisms and the systems supported by or including any of the components of the foregoing; the disposal, spillage, deposit, escape, discharge, leek, emission or presence of, contact with and exposure of, any person to Hazardous Materials or Waste, as well as the creation of any noise, vibration, radiation, nuisance or other adverse impact on the environment, maintenance of human health and safety, and any other matters relating to the condition, protection, maintenance, restoration or replacement of the environment or any part of it. “Environmental” shall be interpreted accordingly. |
|
|
“Exhibit/s” |
shall mean all exhibits, as listed above in the table of contents. |
“Expert” |
shall
have the meaning indicated in Section 6.03(d).
|
|
|
“Financial Debt” |
shall mean all financial debts, inclusive of any bank debt, invoice discounting facility, loan, borrowing, overdraft, shareholders’ loan, financial (capital) lease. |
|
|
“Government Debt” |
shall mean the total of all amounts owed by Coord3 to various Italian government tax or social security authorities or agencies; including amounts owed under so called installment agreements and all other amounts owing that have not yet been formalized into agreements (including interest and penalties); including both short term and long term amounts owed, other than Coord3 Income Taxes. |
|
|
“Governmental Authority” |
means any foreign, European Union, or Italian national, regional or local governmental authority, quasi-governmental authority, court, or any regulatory, administrative or other agency, or any subdivision, department or branch of any of the foregoing. |
|
|
“Governmental Authorization” |
means any consent, permit, concession, license, registration, approval, authorization, order, exemption, certificate, franchise, or variance issued, granted, given, or otherwise made available by or under the authority of any Governmental Authority or pursuant to any applicable law. |
|
|
“Hazardous Substance/s” |
shall mean any substance which is defined to be hazardous, dangerous, toxic or harmful under any Environmental Law. |
|
|
“Indemnification Claim” |
shall mean a claim raised by the Indemnified Party in accordance with Section 11.03 to claim indemnification against a Loss. |
|
|
“Indemnified Party” |
shall have the meaning indicated in Section 11.03(a). |
|
|
“Indemnifying Party” |
shall have the meaning indicated in Section 11.03(a). |
|
|
“Indemnity Cap” |
shall have the meaning indicated in Section 11.01(b)(ii). |
|
|
“Indemnity Holdback Account” |
shall have the meaning indicated in Section 14(a). |
|
|
“Indemnity Holdback Amount” |
shall have the meaning indicated in Section 14(a). |
|
|
“Indemnity Event” |
shall have the meaning indicated in Section 11.03(a). |
“Intellectual Property” |
shall have the meaning indicated in Section 11(i) of Exhibit 10.02. |
|
|
“Inventories” |
shall mean remainders of raw material, work in progress and finished goods as indicated in Article 2424 of the Italian Civil Code, in the section “assets”, letter C). “Inventory” shall be construed accordingly. |
|
|
“IT System” |
shall have the meaning indicated in Section 27(i) of Exhibit 10.02. |
|
|
“Italian Accounting Principles” |
shall mean the provisions established by the Italian Civil Code as well as the accounting principles recommended by the National Council of Licensed Accountants and Bookkeepers (“Consiglio Nazionale degli Ordini dei Dottori Commercialisti e dei Ragionieri”) and modified by the Italian Accounting Body (“Organismo Italiano di Contabilià – O.I.C.) as well as those directly issued by the latter. |
|
|
“Losses” and “Loss” |
shall have the meaning indicated in Section 11.01(a)(i). |
|
|
“Material Adverse Change” |
shall mean any change or effect that is materially adverse to the financial situation, financial performance, business, prospects, assets, liabilities, key people or value of the net assets of the Target Business, impacting the value of the Target Business to Buyer by greater than Eur 1,000,000; but excluding any change or effect arising out of general economic conditions or conditions affecting companies generally in the industry in which Coord3 operates. |
|
|
“Muscarella” |
shall have the meaning indicated in the headings of this Agreement. |
|
|
“Muscarella Service Agreement” |
shall have the meaning indicated in Section 15(a). |
|
|
“Mills” |
shall mean Keith Mills, British national, born in [ ] on [ ], domiciled at [ ]. UK passport no. [ ] |
|
|
“NewCo” |
shall have the meaning indicated in Section 2(a)(i). |
|
|
“Next Metrology” |
shall mean Next Metrology Software, s.r.o., a company established under the laws of the Czech Republic. |
|
|
“Notary Deed of Transfer” |
the notary deed of transfer to be executed on the Completion Date, pursuant to Article 2470 of the Italian Civil Code, before and by the Designated Notary, to effect the transfer of full title to and ownership of the Shares to the Buyer. |
“Notice of Claim” |
shall have the meaning indicated in Section 11.03(a). |
|
|
“Notice of Objection” |
shall have the meaning indicated in Section 11.03(d)(ii). |
|
|
“Notional Net Working Capital” |
shall mean the net balance of the following accounts as maintained under Agreed Accounting Principles and identified on the Contribution in Kind, (a) short term assets; (i) cash including investments in cash equivalent securities that have a life of less than one year, (ii) Trade Accounts Receivable, net of reserves for uncollectible accounts, (iii) Inventories net of agreed reserves, (iv) Prepaid Expenses with life less than one year, less (b) short term liabilities; (i) Trade Accounts Payable, (ii) Deposits/Advances from Customers, (iii) Accrued Expenses and Other Deferred Income, (iv) Amounts due to Banks (including amounts due to overdraft facilities, and bank notes including accrued interest and fees), (v) Accrued Payroll, Payroll taxes, holiday and vacation and relevant Payroll Taxes accruals (but excluding “Fondi TFR”) |
|
|
“Notional Net Working Capital |
shall have the meaning indicated in Section 6.02(a)(i). |
Adjustment” |
|
|
|
“November 2011 Agreements” |
shall have the meaning indicated in Introduction D. |
|
|
“Objection Period” |
shall have the meaning indicated in Section 6.03(b). |
|
|
“Parties” |
shall mean the Sellers and the Buyer. |
|
|
“Party” |
shall mean each of the Sellers jointly and the Buyer, when individually and generically referred to. |
|
|
“Property” |
means the property situated at Bruzolo, Strada Statale 25 n. 3, used by Coord3 to carry out its business. |
|
|
“Provisional Purchase Price” |
shall have the meaning indicated in Section 6.01(a)(i). |
|
|
“Purchase Price” |
shall have the meaning indicated in Section 6.01(a). |
|
|
“Purchase Price Adjustment” |
shall have the meaning indicated in Section 6.02(a). |
|
|
“Real Estate Impositions” |
shall have the meaning indicated in Section 9(ix) of Exhibit 10.02. |
|
|
“Real Property Permit” |
means any certificate of occupancy, building permits, licenses, franchises, consents, approvals and authorizations as well as any other Governmental Authorization concerning real estate properties. |
“Required Consents” |
shall have the meaning indicated in Section 1 of Exhibit 10.02. |
|
|
“Reference Date” |
shall mean November, 30 2014. |
|
|
“Sellers” |
shall have the meaning indicated in the headings of this Agreement. |
|
|
“Sellers’ Representative” |
shall have the meaning indicated in Section 17.05. |
|
|
“Service Agreements” |
shall mean the Muscarella Service Agreement. |
|
|
“Share Capital Increase” |
shall have the meaning indicated in Section 4.03. |
|
|
“Shares” |
shall have the meaning indicated in Section 2(b). |
|
|
“Slow Moving Inventory” |
shall mean any and all inventory items that are in excess of 360 days old as of the Completion Date. |
|
|
“Subsidiaries” |
shall mean the following subsidiaries of Coord3, Coord3 Metrology India Private Limited, Coord3 Metrology, LLC and Coord3 Beijing Machinery Ltd. |
|
|
“Target Business” |
shall have the meaning indicated in Introduction A. |
|
|
“Target Business Employees” |
shall have the meaning indicated in Section 16(iii) of Exhibit 10.02. |
|
|
“Target Financial Debt” |
shall have the meaning indicated in Section 6.01(b)(ii). |
|
|
“Target Net Working Capital” |
shall have the meaning indicated in Section 6.01(b)(i). |
|
|
“Tax Certificate”
|
means
the certificate issued by the tax authorities in accordance with Sect. 14 of the D.Lgs. no. 472 of December 19, 1977. |
|
|
“Taxes” |
shall mean all taxes, charges, fees, levies, deficiencies or other assessments of whatever kind or nature imposed by any Government Authority, including income, receipts, sales, use, ad valorem, transfer, franchise, profits, license, withholding, payroll, employment, unemployment, social security, excise, estimated, stamp, property, intangible or occupancy tax, including amounts owed under so called instalment agreements and all other amounts owing that have not yet been formalized into agreements (including interest and penalties), including both short term and long term amounts owed. |
“Tax Returns” |
shall mean any return (including any information return), declaration, report, claim for refund or credit information return or statement, and any amendment thereto, whether on a consolidated, combined unitary or separate basis, or other document (including any related or supporting information or schedule), filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or payment of Taxes or the administration of any laws, regulations or administrative requirements relating to Taxes. |
|
|
“Third Party Claim” |
shall mean a claim brought by any third party against NewCo. |
|
|
“Transaction” |
shall have the meaning indicated in Section 2(a). |
|
|
“Waste” |
shall mean any waste as defined or regulated by any Environmental Law. |
EXHIBIT 10.01
Buyer’s Representations and
Warranties
| 1. | Good
standing – Authority |
(a) The
Buyer is a limited liability company validly existing, duly incorporated and in good standing under the laws of the State of Michigan,
United States of America.
(b) The
Buyer has full power and authority (including full corporate or other entity power and authority) to execute and deliver this Agreement
and to perform its obligations under this Agreement. The Buyer does not need to give any notice to, make any filing with, or obtain
any authorization, consent, or approval of any third party, or need to give any notice to, make any filing with, or obtain any
Governmental Authorization from, any Governmental Authority in order for the it to consummate the transactions contemplated by
this Agreement, other than as otherwise specified in the Agreement.
(c) Neither
the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated by this Agreement shall:
(i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any Governmental Authority, or court to which Buyer is subject; or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any contract, license, instrument, or other arrangement to which Buyer is a party or by which it is bound or to which
any of its assets is subject.
(d) All
corporate actions taken and which will be taken in connection with the Agreement have been duly authorized by all required corporate
actions and the Buyer has not taken any action that, in any respect, conflicts with, constitutes a default under or results in
any violation of any provision of its articles of association or by-laws.
(e) The
Buyer’s authorized representative has all the necessary corporate powers to enter into this Agreement.
| 2. | No
bankruptcy proceedings |
The Buyer is not insolvent
or subject to any insolvency or pre-insolvency proceeding nor is it a party to or is negotiating any creditors’ arrangement
of any kind.
EXHIBIT
10.2
Sellers’ representations and warranties
(a) Coord3
and the other Sellers have full power and authority (including full corporate or other entity power and authority) to execute and
deliver this Agreement and to perform their obligations under this Agreement. Coord3 and the other Sellers do not need to give
any notice to, make any filing with, or obtain any authorization, consent, or approval of any third party, or need to give any
notice to, make any filing with, or obtain any Governmental Authorization from, any Governmental Authority in order for the Parties
to consummate the transactions contemplated by this Agreement (including the establishment of NewCo, the Contribution in Kind and
the transfer of the Shares by Coord3).
(b) Non-contravention.
Except as set forth in Annex 1 (the “Required Consents”), neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated by this Agreement (including the establishment of NewCo, the Contribution
in Kind and the transfer of the Shares by Coord3), shall: (i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority, or court to which Coord3 is subject;
or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the
right to accelerate, terminate, modify, or cancel, or require any notice under any contract, license, instrument, or other arrangement
to which Coord3 is a party or by which it is bound or to which any of its assets is subject (or result in the imposition of any
Encumbrance upon any of its assets, particularly the Target Business).
(a) Good
standing - Authority
(i) Coord3
is a company limited by shares, validly existing, duly incorporated and in good standing under the laws of Italy.
(ii) No
resolution has been passed or will be passed prior to Completion to approve the winding up of Coord3 or of NewCo.
(iii) Coord3
has all the necessary powers and authority to own, operate or lease the Target Business and all of its assets and to carry on its
business activity as it has been and is currently carried on.
(iv) All
corporate actions taken and which will be taken, including the establishment of NewCo, the Contribution in Kind and the transfer
of the Shares by Coord3, have been duly authorized and the Sellers and Coord3 have not taken any action that, in any respect, conflicts
with, constitutes a default under or results in any violation of any provision of law or of its articles of association or by-laws.
(b) No
insolvency proceedings
(i) None
of the Sellers is subject to any insolvency proceeding of any kind nor does it satisfy the requirements for filing any insolvency
procedure of any kind. No liquidator, bankruptcy receiver, administrator or similar officer has been appointed in respect of any
of the Sellers. No action is currently being taken with a view to file for any insolvency proceeding or to appoint any such liquidator,
bankruptcy receiver, administrator or similar officer.
(ii) No
arrangement with any of the Sellers’ creditors of any kind has been entered into or is currently being negotiated.
(iii) None
of the Sellers has entered into any agreement for the assignment of its assets (or any part of them) for the benefit of its creditors.
(iv) None
of the Sellers has filed any petition for the restructuring of its debt.
(c) Licenses,
permits, authorizations
(i) Coord3
has all licences, permits, authorizations and consents from any person, authority or body which are necessary to carry on its business
and, in particular, to operate the Target Business. Coord3 has at all times been in compliance with each Governmental Authorization.
No event has occurred or circumstance exists that could (with or without notice or lapse of time) (I) constitute or result, directly
or indirectly, in a violation of, or a failure on the part of Coord3 to comply with, any Governmental Authorization, or (II) result,
directly or indirectly, in the revocation, suspension, cancellation, termination, or modification of any Governmental Authorization.
(ii) Coord3
has not received any notice or other communication (whether oral or written) from any Governmental Authority or any other person
regarding (I) any actual, alleged, or potential violation of, or failure to comply with, any Governmental Authorization, or (II)
any actual, proposed, or potential revocation, suspension, cancellation, termination, or modification of any Governmental Authorization.
(iii) All
applications required to have been filed for the renewal or reissuance of the Governmental Authorizations have been duly filed
on a timely basis with the appropriate Governmental Authorities;
(iv) All
other filings required to have been made with respect to such Governmental Authorizations have been duly made on a timely basis
with the appropriate Governmental Authorities.
(ii) All
of such licences, permits, authorizations and consents are in full force and effect and neither the Contribution in Kind nor the
transfer of the Shares contemplated by this Agreement will affect the validity and effectiveness of any licences, permits, authorizations
and consents.
(iii) No
violation exists in respect of any such licences, permits, authorizations and consents and no proceeding is pending or, to the
best of the Sellers’ knowledge, threatened against Coord3 to revoke or materially limit any such licences, permits, authorizations
or consents.
| 3. | Share
Capital of Coord3 |
(i) The
issued and outstanding share capital of Coord3 is that indicated in the headings of the Agreement. The issued share capital has
been duly authorized, and is fully subscribed and paid.
(ii) Muscarella
and Riccardo Muscarella are the sole registered, legal and beneficial owners of 100% of the share capital of Coord3 in the proportions
set out in Introduction B of the Agreement.
(iii) Coord3’s
shares are free and clear from any Encumbrances.
(iv) No
resolution has been passed to approve any increase or decrease of the share capital of Coord3 and there are no outstanding options,
warrants, agreements, conversion rights, pre-emption rights or other rights to subscribe for, purchase or otherwise acquire any
Shares or any further shares of Coord3’s share capital.
(v) Coord3
has issued no bonds or other securities.
| 4. | Title
to the Target Business |
(i) Coord3
is (and upon Completion NewCo will be) the sole legal and beneficial owner of the Target Business.
(ii) The
Target Business and all of its assets are (and upon Completion will be) free and clear of any Encumbrances and there are no outstanding
options, warrants, agreements, pre-emption rights or other rights to purchase or otherwise acquire the Target Business, any portion
thereof or any of its assets.
Each of
the 2013 Financial Statements and the Appraisal Financial Situation: (i) have been prepared in accordance with the Italian Accounting
Principles and with the valuation criteria and the methodologies of application of such accounting principles, as consistently
applied by Coord3 according to past practice; (ii) are true and complete; (iii) fairly represent the assets, liabilities, the financial
position and the results of Coord3 respectively as at December 31, 2013 and at the Reference Date; and (iv) are in accordance with
the books and records of Coord3.
| 6. | Undisclosed
liabilities |
(i) As
at December 31, 2013, Coord3 had suffered or incurred no loss, cost, liability, asset deficiency, debt, third party claim or obligation
of any nature which is not shown or provided for in the 2013 Financial Statements.
(ii) As
at the Reference Date, Coord3 had suffered or incurred no loss, cost, liability, asset deficiency, debt, third party claim or obligation
of any nature which is not shown or provided for in the Appraisal Financial Situation.
| | All Inventory included in the Target Business consists of raw materials and supplies, manufactured
and purchased parts, goods in process, and finished goods, all of which is merchantable and fit for the purpose for which it was
procured or manufactured, saleable in the normal course of business, and none of which is Slow-Moving (except for specific reserves
for such items set forth in the relevant Appraisal Financial Situation), obsolete, damaged, or defective. All such Inventories
are owned free and clear of any Encumbrances. For the purposes hereof, “Slow Moving” shall mean Inventory that Coord3
acquired more than 360 days prior to the Completion Date, other than Inventory described on Annex 7. |
The accounts receivable of Coord3
included in the Target Business, after taking into account any applicable reserve for returns, claims and bad debts shown in the
Appraisal Financial Situation or on Annex 8, are existing, valid and legitimate and collectable.
(i) Coord3
carries out and operates the Target Business in the Property only and it does not own, lease or otherwise use or occupy any other
real estate property (and NewCo upon Completion will carry out and operate the Target Business in the Property only and will not
own, lease or otherwise use or occupy any other real estate property).
(ii) Coord3
is entitled to use the Property, with no restriction whatsoever, on the basis of the contract of Conditional Sale with AGO Renewables
(“AGO”) attached under Annex 9(ii) and of the side letter dated May 28, 2014 (also attached under Annex 9(ii)).
Coord3 has duly and timely fulfilled all obligations arising from such agreement. AGO is not entitled to terminate or withdraw
from the agreement referred to above as a consequence of the consummation of the Transaction.
(iii) To
the best of Sellers’ knowledge, the Property:
(aa) was
built on the basis of and in compliance with lawful building permits;
(bb) complies
with all laws and regulations (including without limitation all building and zoning laws and regulations);
(cc) has
obtained the relevant licenses and permits (including without limitation the Fire Department’s clearance and certificato
di agibilità) which are currently (and upon Completion will be) valid and effective; and
(dd) may
therefore be legitimately used to carry out Coord3’s business (and NewCo’s business) as it is currently run and to
operate the Target Business.
(iii) The
Property is in good condition and repair and sufficient for the operation of the Target Business. There are no structural deficiencies
or latent defects affecting any of the Property and there are no facts or conditions affecting the Property which would, individually
or in the aggregate, interfere in any respect with the use or occupancy of the same or any portion thereof in the operation of
the Target Business as currently conducted thereon, except for the solar plant located on the roof as better described under Annex
9(iii), which does not interfere with the use or occupancy of the Property in the operation of the Target Business as currently
conducted thereon.
(iv) There
is no condemnation, expropriation, eviction, temporary taking or other proceedings, pending or threatened, affecting any parcel
of the Property or any portion thereof or interest therein. There is no injunction, decree, order, writ or judgment outstanding,
or any claim, litigation, administrative action or similar proceeding, pending or threatened, relating to the ownership, lease,
use or occupancy of the Property or any portion thereof, or the operation of the Target Business as currently conducted thereon.
(v) The
Property is (and upon Completion will be) in compliance with all laws and regulations, and the use and occupancy of the Property
and operation of the Target Business thereon do not (and upon Completion will not) violate any laws or regulations. Coord3 has
not received any notice of violation of any law or regulations and, to the best of Sellers’ knowledge, there is no basis
for the issuance of any such notice or the taking of any action for such violation.
(vi) The
Property has (and upon Completion will have) direct vehicular and pedestrian access to a public street adjoining the Property,
and such access is not (and upon Completion will not be) dependent on any land or other real property interest that is not included
in the Property.
(vii) All
water, oil, gas, electrical, steam, compressed air, telecommunications, sewer, storm and waste water systems and other utility
services or systems for the Property have been installed and are operational and sufficient for the operation of the Target Business
as currently conducted thereon and are fully compliant with all applicable laws and regulations.
(viii) Coord3
has not received any notice from any Governmental Authority or other entity having jurisdiction over the Property threatening a
suspension, revocation, modification or cancellation of any Real Property Permit and, to the best of Sellers’ knowledge,
there is no basis for the issuance of any such notice or the taking of any such action. There is not Governmental Authorization
relating to the Real Property Permits or disclosure, filing of other action by Coord3 (or by NewCo) relating thereto required in
connection with the Transaction.
(ix) There
are no Taxes, assessments, fees, charges or similar costs or expenses imposed by any Governmental Authority, association or other
entity having jurisdiction over the Property (collectively, the “Real Estate Impositions”) that are delinquent.
There is no pending or, to the best of the Sellers’ knowledge, threatened increase or special assessment or reassessment
of any Real Estate Impositions for the Property.
(x) There
is no amount due and payable to any architect, contractor, subcontractor, materialman, or other person or entity for work or labor
performed for, or materials or supplies provided to, or in connection with, the Property or portion thereof which is delinquent.
There is no work or labor being performed for, or materials or supplies being provided to, or in connection with, the Property
or portion thereof, or to be performed or supplied prior to the Completion, other than routine maintenance and repair work.
(xi) The
Property has access to water resources necessary in the operation of the Target Business as currently conducted thereon.
(xii) Except
as set forth on Annex 9(xii), there are no pending property insurance claims with respect to the Property or any portion
thereof
| 10. | Fixed
tangible assets (other than real estate properties) |
(a) Ownership
(i) Coord3
has good title to and legal and beneficial ownership of the assets listed in Annex 10(a)(i).
(ii) The
assets listed in Annex 10(a)(i) are free and clear of any Encumbrances.
(b) Capital
Lease
Coord3
is not a party to any capital lease agreement (leasing). Coord3 has duly and timely fulfilled all obligations arising from
such capital lease agreements.
(c) Operating
Lease
Coord3
has no operating lease agreements in place for any asset, except for the assets listed in Annex 10(c). Coord3 has duly and
timely fulfilled all obligations arising from such operating lease agreements.
(d) General
(i) Annex
10(a)(i) is a complete and accurate list of all assets owned and used (as the case may be) by Coord3.
(ii) To
the best of the Sellers’ knowledge, all assets owned or however used Coord3 comply with all laws and regulations.
(iii) All
assets owned or however used by Coord3 are in good operating conditions and repair, subject to normal wear and tear, and usable
in the regular and ordinary course of the business.
(iv) The
assets listed in Annex 10(a)(i) are sufficient to allow Coord3 to properly operate the Target Business as currently conducted.
(i) Coord3
is the sole legal and beneficial owner of the trademarks, trademark applications, industrial designs, manufacturing and trade secrets,
inventions, patents, patent applications, copyright, software know-how, technology and drawings listed and described in Annex
11(i) (“Intellectual Property”). Coord3 owns no intellectual property other than that listed in Annex
11(i).
(ii) The
trademarks applications if any are filed for registration in the jurisdictions indicated in Annex 11(i).
(iii) The
Intellectual Property is free and clear from any Encumbrances.
(iv) The
Intellectual Property is used in good faith.
(v) None
of the items and assets of the Intellectual Property is licensed to third parties or is part of a branch of a business as a going
concern (ramo d’azienda) which is leased to third parties or on which a third party is entitled to the usufruct.
(vi) All
fees, taxes and duties for all the registrations and maintenance of all Intellectual Property have been duly and timely paid by
Coord3.
(vii) Annex
11(i) lists any deadlines related to: (A) registration, maintenance or renewal fees with respect to the Intellectual Property;
and (B) the filing of any documents, applications or certificates (including responses to office actions) that are required within
ninety (90) days of the Completion Date to maintain any such Intellectual Property.
(viii) The
Intellectual Property is sufficient to allow Coord3 to properly operate the Target Business as currently conducted.
(ix) To
the best of the Sellers’ knowledge, the Intellectual Property does not infringe any third party rights.
(x) There
are no proceedings (including opposition proceedings before any authority or challenges) concerning the Intellectual Property which
are pending or, to the best of the Sellers’ knowledge, threatened, and Coord3 has not entered into nor is it negotiating
any settlement agreements regarding the Intellectual Property. Coord3 is not obligated to pay any royalty, license fee, charge
or other amount with regard to any Intellectual Property.
(xi)
The Sellers are not aware of any actual or potential infringements of the Intellectual Property by any third party.
(xii) No
director, officer, shareholder, employee, consultant, contractor, agent or other representative of Coord3 owns or claims any rights
in (nor has any of them made application for) any Intellectual Property.
(xiii) All
research and development activities, drawings and specifications, and know-how concerning the products currently manufactured by
Coord3 have been acquired or completed or fully developed by Coord3 and all related costs have already been incurred.
(xiv) Each
software used by Coord3 has been and is duly licensed to it and all relevant considerations for such licenses have been duly and
timely paid by Coord3.
(xv) To
the best of the Sellers’ knowledge, Coord3’s software does not contain viruses, worms, time bombs, or backdoor access
that could be used to interfere with the functionality of such software.
(xvi) No
person has (or had) a copy of, or has (or had) the right to access now or at some time in the future to any source code for material
Software; and there are no agreements under which Coord3 has placed or is required to place into escrow any such source code.
(xvii) No
Intellectual Property was developed by Coord3 using (in whole or in part) government funding or facilities nor was it obtained
from any Governmental Authority. Coord3 has not granted to any Governmental Authority, either expressly, or by any act or omission
of Coord3, any unlimited, unrestricted or government purpose rights in the Intellectual Property.
(xviii) No
person other than the Seller has ownership of or rights to any Intellectual Property, excluding that is the subject of a license.
(xix) Coord3 has taken
commercially reasonable actions to protect its trade secrets included in the Intellectual Property from unauthorized use or disclosure,
and to maintain such trade secrets in confidence. To the best of the Sellers’ knowledge, these trade secret policies comply
(x) with all contracts between Coord3 and customers or other third parties; and (y) with applicable law. To the best of the Sellers’
knowledge, there have been no material breaches or deviations from these trade secret policies, and no breach of any contract between
the Seller and customers or other third parties with respect to trade secrets.
As of the date this representation
is made, Coord3’s debt and accounts payable are as indicated in Annex 12, plus accounts payable incurred after the
date hereof in the ordinary course of business consistent with the past practice.
| 13. | Guarantees
and securities |
(i) No
guarantees or patronage letters or other securities have been granted or created by third parties (including the Sellers) for the
benefit of Coord3.
(ii) Coord3
has issued or granted no guarantees or patronage letters and/or created securities in favor of any third party including any of
the Sellers.
(iii) There
are no off balance-sheet items in the books and records of Coord3.
(i) All
books and records of Coord3 (including all tax books) have been fully, properly and accurately kept and completed in accordance
with all applicable laws and the Italian Accounting Principles and fairly reflect, in reasonable detail, the transactions, the
financial position and the assets and liabilities of Coord3. All of such books and records are under the direct control of Coord3
and have been kept for the duration prescribed by the applicable civil and tax laws and regulations.
(ii) The
records of the resolutions of the board of directors and the shareholders of Coord3 are accurate and accurately reflect all actions
taken and all resolutions passed by the board of directors and the shareholders of Coord3.
(i) There
are no claims, actions, suits, proceedings or investigations pending or threatened in writing or, to the best knowledge of the
Sellers, threatened other than in writing, before any court or governmental or regulatory or administrative authority, domestic
or foreign, or before any arbitrator of any nature to which Coord3 is a party. To the best of the Sellers’ knowledge, no
facts or circumstances exist which may give rise to any claims, actions, suits, proceedings or investigations.
| 16. | Employment
matters - Agents |
(i) Annex
16(i) lists the employees of Coord3 with their name, employment level, seniority, duties, annual salary (net, gross and cost
for the employer), total accrued deferred salary/severance indemnity (TFR) and the other statutory accrued entitlements and who
are inherent in the Target Business and whose employment contracts will be transferred to NewCo upon the Contribution in Kind (“Target
Business Employees”). The information contained in Annex 16(i) is true, accurate and complete as of the date hereof.
(ii) Coord3
has no employees other than the employees listed in Annex 16(i). No person other than the employees listed in Annex 16(i)
may legitimately claim that he/she has a subordinate employment relationship with Coord3.
(iii) [intentionally
left blank]
(iv) No
litigation, whether pending or threatened in writing or, to the best knowledge of the Sellers, threatened but not in writing, exists
between Coord3 and any employee who is presently on its payroll as well as any former employee.
(v) Coord3
is not in breach of any obligation to pay to any of its employees any wages, salaries, commissions, bonuses, benefits or other
direct or indirect compensation for any services performed to the date hereof or amount required to be reimbursed to such employees,
nor is it in breach of any other obligation arising from the employment agreements with their employees.
(vi) Coord3
has complied with all employment and social security applicable laws and regulations and collective bargaining agreements (including
those executed with local/plant unions, if any) governing employment, as well as with all employment practices, terms and conditions
of employment, wages, hours and benefits, including any provision relating to health and safety.
(vii) Up
to the date hereof no employee of Coord3 has actually performed or actually performs tasks which are not substantially corresponding
to those prescribed by the relevant provisions of the collective bargaining agreements and of his/her individual employment agreement.
(viii) There
is no strike, slowdown or stoppage actually pending or threatened in writing or, to the best knowledge of the Sellers, threatened
but not in writing, against or involving Coord3.
(ix) There
is no employee bonus, stock option, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement,
pension or severance plans (i) to which Coord3 is a party or (ii) which are maintained, contributed to or sponsored by Coord3 for
the benefit of the employees, other than those provided for by the law or by the applicable National Collective Bargaining Agreement.
(x) Up
to the date hereof the total accrued deferred salary / severance indemnity (TFR) of each employee of Coord3 has been calculated
and accrued according to the applicable laws and/or other applicable contractual provisions.
(xi) Except
as set forth on Annex 16(xi) relating to the Government Debt, Coord3 has: (1) paid to the competent authorities all compulsory
social welfare and social security funds and provided to such authorities any requested document concerning the same; (2) fully
paid or, as the case may be, posted in the 2013 Financial Statements and in the Appraisal Financial Situation all contributions
(including interest, penalties and taxes, if applicable) concerning wages paid or due; and (3) withheld and paid to the competent
authorities the total contributions and taxes to be withheld from the paid wages.
(xii) No
employee of Coord3 is entitled to receive any payment of any nature whatsoever as a consequence of the execution of this Agreement
and/or of the Completion as contemplated by this Agreement.
(xiii) Coord3
applies the National Collective Bargaining Agreement for Industrial Companies (“CCNL Industria Metalmeccanica”).
(xiv) Coord3
has had access to cassa integrazione guadagni in the past and it has always duly complied with all the related obligations.
A procedure for contratto di solidarietàis currently pending and the relevant terms are summarized in Annex 16(xiv).
(xv) Coord3
has not made any loan to any of its employees.
(xvi) Coord3
has no workers on a project basis (collaboratori a progetto), except for those listed under Annex 16(xvi).
(xvii) Coord3
has no fixed term employees.
(xviii) Coord3
has no self-employed workers (including collaboratori coordinati e continuativi), except for those listed under Annex
16(xviii).
(xix) Coord3
has duly and timely fulfilled all of its tax and social security obligations in relation to the current and past members of the
board of directors.
(xx) Coord3
has no commercial agents.
(i) The
insurance policies entered into and maintained by Coord3 are listed in Annex 17(i), which, for each insurance policy, lists
the insurance company, the risk covered, the date of execution of the policy, the premium, the expiration date. Such policies are
of the type and amount which are appropriate for the conduct of Coord3’s business and, in particular, of the Target Business
and are sufficient for material compliance with all agreements to which they are a party or by which they are bound.
(ii) All
premiums concerning the insurance policies have been paid at the due dates. Such insurance policies are in full force and effect
as of the date hereof and are validly enforceable.
(iii) No
event relating to Coord3 or to the Target Business has occurred which could reasonably be expected to result in a retroactive upward
adjustment in premiums under any such insurance policies or which (to the best of the Sellers’ knowledge) is likely to result
in a prospective upward adjustment in such premiums or in any other adverse change in the terms of any policy of insurance covering
the Target Business.
(iv) The
insurance policies shall continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following
the consummation of the transactions contemplated by this Agreement; neither Coord3, the other Sellers nor any other party to the
insurance policies is in breach or default, and no event has occurred which, with notice or the lapse of time, would constitute
such a breach or default, or permit termination, modification, or acceleration, under the policy.
(v) Coord3
has given notice to the insurer of all insured claims.
(a) Coord3
is not and has not been in breach of any applicable Environmental Law.
(b) No
plants, factories, sheds, stores, warehouses, offices, facilities and land owned or used by Coord3 contain, or have previously
contained, any Hazardous Substances, including, without limitation, asbestos, petroleum or petroleum products (including gasoline,
crude oil or any fraction thereof), polychlorinated biphenyl’s, and urea-formaldehyde insulation, to be considered Hazardous
Substances, in amounts or concentrations that constitute or constituted a violation of, or could give rise to any liability under,
any applicable Environmental Law.
(c) Hazardous
Substances have not been transported or disposed of from any plant, factory, shed, store, warehouse, office or facility of Coord3,
in violation of, or in a manner or to a location which could give rise to any liability under, any applicable Environmental Law,
nor have any Hazardous Substance been generated, treated, stored or disposed of at, on or under any of the plants, factories, sheds,
stores, warehouses, offices and facilities of Coord3, in violation of, or in a manner that could give rise to any liability under,
any applicable Environmental Law.
(d) All
Environmental Licenses required for the operations of the Target Business have been obtained, are in full force and effect and
have been complied with by Coord3.
(e) Coord3
is not currently the subject of any claim, investigation or inspection (including for liabilities for cleaning up, remediation
or costs for personal injury or property damages) under any applicable Environmental Law or to the best of the Sellers’ knowledge
for any breach, suspected breach or alleged breach by Coord3 of any Environmental License, and to the best of the Sellers’
knowledge no such claim, investigation or inspection is pending, threatened or proposed and there are no facts or circumstances
which may lead to any such claims, investigations or inspections.
(f) To
the best of the Sellers’ knowledge, no expenditures are required in connection with the business of Coord3 as presently conducted
and/or plant and/or facility of Coord3 in order to comply with any applicable Environmental Law.
(g) There
are no judicial proceedings or governmental or administrative actions pending, contemplated or threatened in writing or, to the
best knowledge of the Sellers, threatened but not in writing, under any presently applicable and enacted Environmental Law to which
Coord3 and/or their directors, officers, agents or employees, as the case may be, is or will be named as a party with respect to
each relevant plant, factory, shed, store, warehouse, office and facility, nor are there any decrees, administrative orders or
other orders or administrative or judicial requirements outstanding under any applicable Environmental Law with respect to the
relevant plant, factory, shed, store, warehouse, office and facility.
(h) There
is no presence, discharge, spillage, emission or other release of any Hazardous Substance in, onto, under or from any of the properties
used by Coord3 and, to the best of the Sellers’ knowledge, no claims or complaints relating to any such occurrence are pending
and the Sellers are not aware of any circumstance which could result in any such claim or complaint being received.
(i) All
Waste which is or has at any time been produced by Coord3 has been disposed of in accordance with the requirements of all Environmental
Laws as from time to time, up to now, in force.
(j) Except
for temporary storage of Waste prior to collection as permitted pursuant to Environmental Laws as from time to time in force, no
Waste is or has ever been stored or disposed of on any of the properties used by Coord3 in breach of any Environmental Law as from
time to time in force or has been disposed of or stored by Coord3 at any such property.
(k) Except
as provided in Annex 18(xi), all information provided by Coord3 to any competent authority in accordance with the requirements
of the Environmental Laws as from time to time in force and all records and data required to be maintained by Coord3 under the
provisions of any applicable Environmental Law regarding any processes currently carried on at or emissions, discharges or Waste
disposal from any of the properties used by Coord3 is complete and accurate.
(l) Neither
Coord3, nor any of Coord3’s directors, officers, or employees is in breach of or has incurred or become convicted of or become
subject to any civil or administrative or criminal liability under any applicable Environmental Law or the terms of any Environmental
License (other than a liability to pay routine costs or charges under any required license) and Coord3 has not received any notice
or other communication or become aware of any facts or circumstances from which it appears that they or any such other person may
be or is alleged to be in breach of or to have incurred any such liability under any applicable Environmental Law or Environmental
License.
| 19. | Compliance
with the law – Regulatory compliance |
(i) The
operations of Coord3 have been conducted, in all material respects, in compliance with all permits, applicable laws, regulations,
orders and other requirements of all courts and other governmental or regulatory authorities having jurisdiction over Coord3, including
any such laws, regulations, orders or other requirements relating to product safety, accident prevention, export control, money
laundering, anti-corruption, international sales and business ethics and health and safety on the work place.
(ii) Coord3
has not received a notification of any violation of any such law, regulation, order or requirement, or are in default with respect
to any order, writ, judgment, award, injunction or decree of any court or governmental or regulatory authority or arbitrator applicable
to Coord3, or any of its assets, properties or operations.
(iii) Neither
Coord3 nor any of its directors, officers or employees has committed any act or omission which may have caused any damage to any
public authority or entity (danno erariale).
(iv) Coord3
has not adopted any organizational model in accordance with Legislative Decree 231/2001. The Sellers represent and warrant that
no action, suit, proceeding, hearing, investigation, charge, complaint, claim, demand, or notice has been filed or commenced against
Coord3 pursuant to Legislative Decree 231/2001, nor any action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against any of Coord3’s employees or directors which may result in an action
pursuant to Legislative Decree 231/2001 and no facts occurred and will occur prior to Completion which could result in action,
suit, proceeding, hearing, investigation, charge, complaint, claim, demand pursuant to Legislative Decree 231/2001.
(i) Annex
20(i) lists all contracts to which Coord3 is a party and which are part of the Target Business.
(ii) In
relation to the customers’ or suppliers’ contracts of which Coord3 is a party, none of the customers or suppliers (as
the case may be) is entitled to terminate or withdraw from the relevant contracts referred to in this paragraph (i) as a consequence
of the Contribution in Kind or of the sale of the Shares to the Buyer.
(iii) Coord3
has duly and timely fulfilled in all material respects all of the obligations arising from all of the contracts referred to in
paragraph 20(i) above.
(iv) With
respect to each contract entered into by Coord3 which is part of the Target Business: (A) the contract is legal, valid, binding,
enforceable, and in full force and effect (or, as the case may be in relation to past agreement expired or terminated, were legal,
valid, binding and enforceable) against Coord3 and, to the best of Sellers’ knowledge the other parties thereto; (B) the
contract shall continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the
consummation of the transactions contemplated by this Agreement; (C) neither Coord3, nor, to the best of Sellers’ knowledge,
any other party is in breach or default, and, to the best of Sellers’ knowledge, no event has occurred that with notice or
lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under such contract;
(D) no party has repudiated any provision of such contract; and (E) there is no renegotiation of, attempt to renegotiate, or outstanding
rights to renegotiate any such contracts with any person, and no person has made written demand for such renegotiation; (F) no
party is entitled to withdraw from any contract without cause or as a consequence of the consummation of the Transaction; (G) to
the best of the Sellers’ knowledge, all contracts to which Coord3 is a party and which should have been awarded through a
public tender process have been awarded in compliance with applicable laws and regulations.
(v) Since
September 30, 2014, no supplier of Coord3 has indicated that it shall stop, or materially decrease the rate of, supplying materials,
products or services to Coord3 or initiated or threatened litigation as a result of a dispute nor has Coord3 refused to pay any
such supplier due to quality timeliness or other issues.
(vi) Since
September 30, 2014, no customer has indicated that it stop, or materially decrease the rate of, purchasing products or services
from Coord3, refused to pay due to quality, timeliness or other issues or initiated or threatened litigation as a result of a dispute.
None of Coord3’s agreements with its customers contain provisions which permit the customer to terminate their arrangement
with Coord3 as a result of the consummation of the transactions contemplated hereby.
| 21. | Product
Liability and product warranty |
(i) No
product liability claims are pending against Coord3.
(ii) Coord3
has not received any order from any Governmental Authority to recall any of the products manufactured and delivered. No event has
occurred or circumstance exists that (with or without notice or lapse of time) could result in any such liability or recall. No
product liability claims of Coord3 have been settled during the past two (2) years.
(iii) There
is not a standard form for product warranty issued by Coord3. Each product manufactured, repaired, sold, leased, or delivered by
Coord3 has been in conformity with all applicable contractual commitments and all express and implied warranties, and Coord3 has
no liability (and, to the best of Sellers’ knowledge, there is no basis for any present or future action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand against it giving rise to any liability) for replacement or repair
thereof or other damages in connection therewith. No product manufactured, repaired, sold, leased, or delivered by Coord3 is subject
to any guaranty, warranty, or other indemnity beyond the applicable standard terms and conditions of sale or lease.
(iv) The
products manufactured and delivered by Coord3 prior to the date hereof do not have any material design or serial defects which
may reasonably be expected to result in any claim. Coord3 has no liability (and there is no basis for any present or future action,
suit, proceeding, hearing, investigation, charge, complaint, claim, or demand against it giving rise to any adverse consequence)
as a result of any defect or other deficiency (whether of design, materials, workmanship, labelling, instructions, or otherwise)
with respect to any product designed, manufactured, repaired, sold, leased, licensed, or delivered, or any service provided by
Coord3 and pertaining to the Target Business.
Except
as set forth in Annex 22:
(i) Coord3
complied with all obligations in respect of Tax. Annex 22(i) sets forth the outstanding Government Debt.
(ii) All
tax returns, reports or other filings that are required to be filed by Coord3 on or before the date this representation is being
made with any tax or social security authorities have been duly and timely filed. Such tax returns, reports or other filings fully
reflect the tax and social security liabilities of Coord3, at the time of the filing, for the relevant tax period. Coord3 currently
is not the beneficiary of any extension of time within which to file any Tax Return. No claim has ever been made by an authority
in a jurisdiction where Coord3 does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. There are
no liens for Taxes (other than Taxes not yet due and payable) upon the Target Business.
(iii) All
Taxes of Coord3: (i) payable on or before the date this representation is made; or (ii) that are attributable to any relevant period
up to the date hereof, but are not yet due and payable as of the date this representation is made, in each case have been timely
and duly paid or appropriate provisions have been made therefore in the Appraisal Financial Situation.
(iv) No
claim for assessment or collection of Taxes has been asserted against Coord3 and there are no such claims threatened in writing
or, to the best of the Sellers’ knowledge, threatened other than in writing against Coord3. Neither Coord3 nor the other
Sellers nor any director or officer (or employee responsible for Tax matters) of Coord3 expects any Governmental Authority to assess
any additional Taxes for any period for which Tax Returns have been filed.
(v) Coord3
has withheld from its employees, independent contractors, creditors, shareholders and third parties and timely paid to the appropriate
Governmental Authority proper and accurate amounts in all respects required to have been withheld or paid over for all periods
ending on or before the Completion Date in compliance with all Tax withholding and remitting provisions of applicable laws and
have complied in all respects with all Tax information reporting provisions of all applicable laws.
(vi) Coord3
has not received any written or oral notice that it is in violation (or with notice will be in violation) of any applicable law
relating to the payment or withholding of Taxes.
(vii) Coord3
has not received any notice of a proposed Tax or social security inspection or any other administrative proceeding or court proceeding
nor are any of the foregoing pending or threatened in writing, or to the best of the Sellers’ knowledge, threatened but not
in writing with regard to any Taxes or Tax Returns.
(viii) Coord3
is a party to no dispute with any tax authority in relation to any Tax.
(ix) Annex
22(ix) sets forth the amount of Coord3’s unpaid Taxes as of the date the representation is being made, together with
interest and penalties.
(x) Annex
22(x) sets forth all of Coord3’s open tax audit years.
Coord3
has never received nor benefitted from any public grants.
| 24. | Privacy
and personal data protection |
(i) Coord3
has complied with all laws and regulations governing the protection of privacy and personal data.
(ii) Coord3
maintains policies and procedures regarding data security, privacy, and personal information that are commercially reasonable and,
in any event, comply with all obligations to its employees, customers, suppliers and data subjects, or others, and with all applicable
laws and regulations. The consummation of the Transaction will not violate any privacy policy, information security policy, terms
of use, customer agreements or any applicable laws or regulations relating to the use, storage, treatment, dissemination or transfer
of any personal data or information or confidential information of a third party.
| 25. | Loans
to or by the Sellers |
| | There is no outstanding indebtedness or other liability (actual or contingent) owed by Coord3 to
the other Sellers, their Affiliates or to any director, officer, or employee of Coord3 or any person related to a director, officer,
or employee as aforesaid, nor is there any indebtedness owed to Coord3 by any such person. |
| 26. | Equity
Interests; Branches |
(i) No
interest in any legal entity is owned (whether directly or indirectly) by Coord3 nor is Coord3 a member of any partnership, joint
venture, consortium or other incorporated or unincorporated association, except as disclosed in Annex 26(i).
| 27. | Information
Technology |
(i) Coord3
has an information technology system (i.e. personal computers, network, servers and connected devices and software, hereinafter
“IT System”) fully functioning and suitable to operate the Target Business in an efficient manner.
(ii) The
IT System is suitable and works properly for the purpose of supporting the management of the Target Business and allowing all its
employees to carry out their intended tasks and duties, including, but not limited to, keeping the accounts and storing all relevant
information.
(iii) The
IT System is suitable to run all programs and perform all actions necessary for the specific business of the Target Business, including
but not limited to, design, simulation and calculation.
(iv) Coord3
has acquired full title to and ownership of, or a legitimate right to use, any and all third party software and/or intellectual
property used in the IT System.
(v) To
the best knowledge of the Sellers, the use of the software and intellectual property relating to the IT Systems and use of the
IT System itself does not infringe any third party right or statutory provision.
(vii) Coord3
has devised and implemented with the utmost care specific procedures aimed at protecting the IT System from viruses and any other
harm and preserving the security of their IT System, data and intellectual property.
(viii) Coord3
has taken all reasonable steps to safeguard the IT System utilized in the operation of the Target Business, including the implementation
of procedures to ensure that such information technology systems are free from any disabling codes or instructions, timer, copy
protection device, clock, counter or other limiting design or routing and any "back door," "time bomb," "Trojan
horse," "worm," "drop dead device," "virus," or other software routines or hardware components
that in each case permit unauthorized access or the unauthorized disablement or unauthorized erasure of data or other software
by a third party, and to date there have been no successful unauthorized intrusions or breaches of the security of the information
technology systems.
(ix) The
consummation of the Transaction (or any part thereof) will not disrupt or discontinue the operation and functionality of the IT
System.
(a)
Since the Reference Date, the business of Coord3 has been conducted in accordance with Section 8.01(a) of the Agreement and of
all applicable laws. Since the Reference Date, Coord3 has taken none of the following actions:
(xxvii) sale
or disposal of any assets outside the ordinary course of business;
(xxviii) granting
of any rights (including in rem securities) in respect of any of Coord3’s assets or the charging of any of said assets
with any Encumbrances;
(xxix) decisions
to incur any indebtedness or to borrow any money (except within the limits of the facilities currently available to Coord3 as disclosed
to the Buyer), or to enter into any factoring or invoice discount agreement;
(xxx) extension
of the terms of payment of any payables or other liabilities or of any receivables, outside of ordinary course of business, or
discount any receivables;
(xxxi) transactions
(including share capital increase or decrease) which affect the share capital of Coord3;
(xxxii) the
granting of any rights (including in rem security rights) on any of the shares of NewCo or any further share to be issued by NewCo
and issuance of any bond or other securities;
(xxxiii) decisions
to undertake any capital commitment (purchase or financial / capital lease of fixed or other assets);
(xxxiv) decisions
to enter into any partnership, consortium, association, joint venture agreements;
(xxxv) change
of the remuneration of any of the employees, other than increases required by the law or by the applicable collective bargaining
agreements;
(xxxvi) recruitment
of any new dirigente or quadro or promotion of any employee to such levels;
(xxxvii) any
redundancy plan or the dismissal of any dirigente or quadro;
(xxxviii) acquisition
or disposal of equity interests in other entities or of businesses as going concerns or any branches thereof;
(xxxix) agreements
with customers or suppliers (including purchase orders) which are outside the ordinary course of business or (aa) whereby the counterpart
may withdraw or terminate for change of control, (bb) which provide for restrictions to the freedom to operate in the market; or
(cc) which contemplate unusual payment terms outside ordinary course of business if compared with standard market practice;
(xl) agreements
with related parties (including shareholders, directors or employees of Coord3 or relatives of the shareholders or of the directors
or employees);
(xli) change
in accounting methods, policies or procedures or presentations of accounts; declaration and distribution of dividends;
(xlii) settlements
of disputes when the overall value exceeds EUR 30,000;
(xliii) guarantees
to secure the obligations of a third party;
(xliv) liquidation;
dissolution; mergers, de-mergers and restructurings;
(xlv) real
estate leases;
(xlvi) permitting
the lapse or forfeiture of intellectual property rights or other intangible assets;
(xlvii) fail
to file any tax returns or any other report to any authority as required under the law or any contract by its applicable due date
or fail to pay any taxes, as and when they first became due and payable;
(xlviii) negotiation
for the settlements or compromise, settlements or compromise of any tax liability;
(xlix) payment
of dividends or distributions;
(l) termination
of any material agreement;
(li) enter
into or amend any agreement, except for acceptance or placement of purchase orders in the ordinary course of business.
(b) As
at the date this representation is made, Coord3 had suffered or incurred no loss, cost, liability, asset deficiency, debt, third
party claim or obligation of any nature, except as shown or provided for in the Appraisal Financial Situation or incurred in the
ordinary course of business since the Reference Date.
| 29. | Material
Adverse Change |
No Material Adverse Change in
Coord3 has occurred between the Reference Date and the date this representation is made.
The Sellers have entered into
negotiations with the Buyer in relation to the Transaction and have entered into this Agreement without using the services of any
broker.
No representation or warranty
made by the Sellers and none of the Appendices and Annexes contains or will contain any untrue statement of any fact, or omit any
fact, the omission of which would be misleading.
| 32. | International
Trade Sanctions |
Neither Coord3, nor any other
Sellers acting on its behalf, nor any of their respective directors, officers, agents, employees or any other persons acting on
behalf of Coord3 has, in connection with the operation of Coord3 or the Target Business, (i) used any corporate or other funds
for unlawful contributions, payments, gifts or entertainment, or made any unlawful expenditures relating to political activity,
to government officials, candidates or members of political parties or organizations, or established or maintained any unlawful
or unrecorded funds in violation of Section 104 of the Foreign Corrupt Practices Act of 1977, as amended, or any Italian applicable
or other similar applicable law relating to corruption, (ii) paid, accepted or received any unlawful contributions, payments, expenditures
or gifts, or (iii) violated or operated in noncompliance with any export restrictions, anti-boycott regulations, embargo regulations
or other similar applicable law.
| 33. | Affiliate
Transactions |
None of the Sellers, Coord3’s
directors, officers or employees, their Affiliates, and their relatives are a party to, or the beneficiary of, any contract or
material transaction relating to Coord3 or the Target Business, including any contract providing for any loans, advances, the employment
of, furnishing of services by, rental of assets from or to, or otherwise requiring payments to or from, any such persons.
Coord3 has never conducted any
business or other operations other than the current business of designing, engineering, manufacturing, marketing, selling, installing,
servicing and maintaining CMMs (the “Current Business”) and Coord3 has no liabilities or obligations, known,
unknown, contingent or otherwise, arising from previously disposed of or discontinued operations, or that are not related to or
did not arise from the operation of the Current Business.
Exhibit 10.2
DATE |
January 29, 2015 |
|
|
Keith Mills |
(1) |
|
|
and |
|
|
|
Perceptron, Inc. |
(2) |
Stock Purchase Agreement
Next Metrology s.r.o.
TABLE OF CONTENTS
SECTIONS
Section 1 |
Introduction and Exhibits – Interpretation – Certain definitions |
3 |
|
|
|
Section 2 |
Sale and purchase of the Share |
4 |
|
|
|
Section 3 |
Purchase Price |
5 |
|
|
|
Section 4 |
Completion – Conditions to Completion |
5 |
|
|
|
Section 5 |
Pre-Completion Date Covenants |
8 |
|
|
|
Section 6 |
Due Diligence |
11 |
|
|
|
Section 7 |
Representations and warranties |
11 |
|
|
|
Section 8 |
Breach of representations and warranties |
12 |
|
|
|
Section 9 |
Further covenants and specific obligations of the Seller |
15 |
|
|
|
Section 10 |
Restrictive Covenants |
16 |
|
|
|
Section 11 |
Indemnity Holdback Account |
16 |
|
|
|
Section 12 |
[Intentionally left blank] |
17 |
|
|
|
Section 13 |
[Intentionally left blank] |
17 |
|
|
|
Section 14 |
Termination |
17 |
|
|
|
Section 15 |
Miscellaneous |
18 |
|
|
|
Section 16 |
Governing Law - Arbitration |
21 |
LIST
OF THE EXHIBITS
Exhibit 1.03: |
|
Certain definitions |
|
|
|
Appendix A: |
|
Agreed Accounting Principles |
|
|
|
Exhibit 4.02(a)(i)(bb): |
|
Director’s waiver form |
|
|
|
Exhibit 4.02(a)(i)(hh) |
|
Seller Release |
|
|
|
Exhibit 4.02(a)(i)(ii): |
|
terms and conditions of the employment agreements with the key people |
|
|
|
Exhibit 4.02(a)(i)(ll): |
|
Waiver of the Right of First Refusal |
|
|
|
Exhibit 7.01: |
|
Buyer’s representations and warranties |
|
|
|
Exhibit 7.02: |
|
Seller’s representations and warranties |
|
|
|
Exhibit 7.02(a): |
|
Disclosure Letter |
agreement
This agreement (the “Agreement”)
is entered into on January 29, 2015
by and amongst
| (1) | Keith Mills, British national, born in [ ], on [ ], domiciled at [ ], UK passport
no. [ ] (“Mills” or the “Seller”), |
and
| (2) | Perceptron, Inc., a company established under the laws of the State of Michigan, with offices
at 47827 Halyard Drive, Plymouth, MI 48170, State of Michigan, United States of America, Id No. 272233, for the purposes of this
agreement represented by Margaret Mary Kaczmarek Nelson, in her capacity as Vice President (“Buyer”), |
(the Seller and the Buyer when jointly
referred to “Parties” and each of them when generically and individually referred to “Party”)
INTRODUCTION
| A. | Seller owns 25% share in Next Metrology. Next Metrology's registered capital as of the date hereof
is CZK 200,000 (in words: two hundred thousand Czech crowns) and is divided into the following three ownership interests representing
100% of the participation and shareholding rights in Next Metrology: |
| (i) | Muscarella: ownership interest of total par value of CZK 50,000, representing 25% of Next Metrology’s
registered capital (the “Muscarella Share”); |
| (ii) | Mills: ownership interest of total par value of CZK 50,000, representing 25% of Next Metrology’s
registered capital (the “Share”); |
| (iii) | Topmes: ownership interest of total par value of CZK 100,000, representing 50% of Next Metrology’s
registered capital (the "Topmes Share"). |
| B. | The Buyer is a non-contact vision and metrology company with a long established experience
in laser-based technology and applications. |
| C. | The Buyer is interested in acquiring the Share from the Seller, upon the terms and conditions set
forth in this Agreement. |
| D. | The Seller declared that he is interested and willing to transfer and to cause the transfer of
the Share to the Buyer, upon the terms and conditions set forth in this Agreement. |
| E. | The Buyer is interested in acquiring only 100% participation in Next Metrology, i.e., acquiring
the Share together with the Topmes Share and the Muscarella Share. |
Now therefore,
the Parties agree as follows:
SECTION 1
Introduction and Exhibits - Interpretation
– Certain definitions
1.01 Introduction, Exhibits, Appendices
and Annexes
The Introduction, the Exhibits, the Appendices
and Annexes form an integral and essential part of this Agreement, as amended from time to time as provided in Section 15.03(b).
1.02 Interpretation
| (a) | In this Agreement, unless the context otherwise requires: |
(i) reference to “this Agreement” shall include its Introduction, all of its Exhibits, Appendices and Annexes;
(ii) the term “person” includes individuals, firms, companies, corporations, unincorporated associations as well as any association or partnership or joint venture (whether or not having a separate full legal capacity).
| (b) | Any reference to a statute, statutory provision or subordinate legislation shall be construed as
referring to that statute, statutory provision or subordinate legislation as amended, modified, consolidated, re-enacted or replaced
and in force from time to time, whether before or after the date of this Agreement and shall also be construed as referring to
any previous statute, statutory provision or subordinate legislation amended, modified, consolidated, re-enacted or replaced by
such statute, statutory provision or subordinate legislation. |
| (c) | References to any Czech statutory provision or Czech legal term for any action, remedy, method
of judicial proceeding, document, legal status, court, official or any other legal concept or thing shall, in respect of any body
corporate incorporated in any jurisdiction other than the Czech Republic, be deemed to refer to and include any equivalent or analogous
action, remedy, method of judicial proceeding, document, legal status, court, official or other legal concept or thing or what
most nearly approximates in that jurisdiction to the Czech statutory provision or Czech legal term. |
| (d) | The schedules to this Agreement shall for all purposes form part of this Agreement. |
| (e) | Any phrase introduced by the terms "including", "include", "in particular"
or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. |
| (f) | Notwithstanding that this Agreement is set forth in the English language only, where in this Agreement
a Czech term is given in italics and/or in brackets after an English term or vice versa, the relevant provision relates to circumstances
governed by the respective Czech law and if there is any inconsistency between the Czech term and the English term, the meaning
of the respective Czech term shall prevail. |
| (g) | As this Agreement is the result of negotiations, the parties agree that none of the clauses or
terms hereof can be attributed to any one party as having first used it in the negotiation of the Agreement. |
1.03 Certain definitions
In addition to terms elsewhere defined
in this Agreement and unless otherwise provided herein, the terms and expressions listed in Exhibit 1.03 shall have the meanings
indicated therein and grammatical variations of such terms shall have corresponding meanings.
SECTION
2
Sale and purchase of the Share
| (a) | Upon the terms and subject to the conditions set forth in this Agreement, the Seller agrees to
sell the Share to the Buyer, and the Buyer agrees to buy the Share, on the Completion Date. |
| (b) | On the Completion Date, the Seller and the Buyer shall enter into and execute an Ownership Interest
Purchase Agreement (the “OITA”) by which the Seller shall transfer to the Buyer the Share. The Parties agree
that the OITA shall be subject to this Agreement and therefore, they shall ensure that any claim however relating to the sale of
the Share is raised under this Agreement. |
| (c) | Upon fulfillment of all other formalities as required by Section 4.02 and fulfillment (or waiver)
of all the conditions provided for in Section 4.03, the Buyer shall acquire full title to and ownership of the Share, free and
clear of any Encumbrance, together with all rights attached thereto. The Parties agree that the Buyer shall benefit from all the
economic effects of the sale of the Share as contemplated by this Agreement as from the Completion Date. |
| (d) | The Parties further acknowledge that the Buyer shall be entitled to appoint a third party legal
entity directly or indirectly controlled by, controlling or under common control with the Buyer which will acquire the Share. Should
the Buyer wish to appoint and, pursuant to Section 15.04, assign its rights and obligations under this Agreement to, such third
party legal entity, it may do so up to the Completion Date, and the Seller undertakes to provide consent with such assignment,
while such consent may not be unreasonably withheld or delayed. In any event, the Buyer will remain jointly liable together with
such third party for the performance of the obligations arising from this Agreement. |
SECTION 3
Purchase Price
3.01 Purchase Price
| (a) | The Parties agree that the purchase price in consideration of the transfer to the Buyer of full
title to and ownership of the Share, free and clear of any Encumbrances, shall be paid by the Buyer to the Seller and shall be
equal to Eur 750,000 (seven hundred fifty thousand) (“Purchase Price”) to be paid to the Seller upon Completion
in cash. |
3.02 Payment of the Purchase Price
| (a) | The payments of all portions of the Purchase Price to be paid in cash shall be made by the Buyer
to the Seller by bank wire transfers to Seller’s bank account the details of which shall be indicated by the Seller in writing
at least 7 (seven) Business Days prior to each date on which payments fall due or to the Indemnity Holdback Account, as indicated
in the following clauses of this Section 3.02. |
| (b) | The Purchase Price shall be paid to the Seller upon the execution of the OITA as follows: |
| (i) | as to Eur 650,000 (six hundred fifty thousand), to the Seller’s bank account as indicated
in paragraph (a) above; |
| (ii) | as to Eur 100,000 (one hundred thousand), to be credited in the Buyer’s financial records
as an Indemnity Holdback Account and paid to the Seller as set forth in Section 11. |
| (c) | No interest shall accrue on any of the amounts to be paid by either Party pursuant to paragraph
(b), above, if timely paid. |
| (d) | For the avoidance of any doubt, the Parties agree that, by paying the amount indicated in paragraph
(b)(i) above to the Seller, the Buyer shall have discharged its obligation to pay the relevant part of the Purchase Price in full. |
SECTION 4
Completion – Conditions to
Completion
4.01 Completion Date
| (a) | Completion shall occur on January 29, 2015 or any other date as agreed between the Parties, subject
to the conditions to Completion indicated in Section 4.03 being satisfied or waived by the interested Parties in writing on or
before the Completion Date. |
| (b) | The Completion session and the execution of the OITA shall take place at the office of Squire Patton
Boggs, v.o.s., advokátní kancelář, ID No. 256 38 882, Václavské náměstí
57/813, 110 00 Prague 1, Czech Republic or any other place as agreed between the Parties. |
4.02 Completion
| (a) | The Parties, each to the extent within its control, shall consummate or procure the consummation
of all of the following actions and transactions, on or before the Completion Date, as follows: |
| (i) | the Seller shall cause the following to occur or have occurred: |
| (aa) | delivery to the Buyer of the following documents relating to the reorganization of matters between
Next Metrology and Topmes: |
| (i) | a copy of a fully executed Confirmation Agreement entered into between Next Metrology and Topmes
in the form agreed by the Parties before or around the signing of this Agreement; |
| (ii) | a copy of a fully executed Equipment Purchase Agreement entered into between Next Metrology and
Topmes in the form agreed by the Parties before or around the signing of this Agreement; |
| (iii) | a copy of a fully executed License Agreement entered into between Next Metrology and Mills in the
form agreed by the Parties before or around the signing of this Agreement; |
| (iv) | a copy of a fully executed License Agreement entered into between Next Metrology and Coord3 India
in the form agreed by the Parties before or around the signing of this Agreement; |
| (v) | a copy of a fully executed Agreement on Additional Capital Contribution entered into between Next
Metrology and Topmes in the form agreed by the Parties before or around the signing of this Agreement; |
| (vi) | a copy of a fully executed Set-off Agreement entered into between Next Metrology and Topmes in
the form agreed by the Parties before or around the signing of this Agreement; |
| (vii) | consent of executives of Next Metrology with the provision of contribution outside of the registered
capital of Next Metrology pursuant to the Agreement on Additional Capital Contribution contemplated in Section 4.02(a)(i)(aa)(vii)
in the form agreed by the Parties before or around the signing of this Agreement; |
| (viii) | Consent from the following employees of Topmes regarding the TouchDMIS Software in the form agreed
by the Parties before or around the signing of this Agreement: |
| (ix) | Confirmation and Consent from the following employees of Topmes regarding the TANGO Software in
the form agreed by the Parties before or around the signing of this Agreement: |
| (bb) | statements (in the agreed form attached hereto as Exhibit 4.02(a)(i)(bb)) whereby the Seller and
Mr. Štěpán Hřivna declare to have no and waive any and all rights or claims vis-à-vis Next Metrology
in relation to their role and duties as managing director; |
| (cc) | delivery to the Buyer of a copy of the statement indicated in sub-paragraph (bb) above; |
| (dd) | delivery to the Buyer of a written statement whereby the Seller warrants to the Buyer that, as
from the date hereof Next Metrology’s business has been conducted in accordance with the provisions of Section 5.01; |
| (ee) | delivery to the Buyer of a written statement whereby the Seller warrants that the representations
and warranties given by the Seller and referred to in Section 6(b) and Section 7.02 are accurate, true and correct as at the Completion
Date and as if given at the Completion Date; |
| (ff) | the execution of the Sublease Agreement and delivery to the Buyer of a copy of such agreement; |
| (gg) | delivery to the Buyer of a certified copy of a power of attorney conferring the authority of each
person entering into an agreement or document on behalf of the Seller, if applicable; |
| (hh) | delivery to the Buyer of a written statement with the release of all claims from the Seller in
the form attached as Exhibit 4.02(a)(i)(hh); |
| (ii) | delivery to the Buyer of copies of the employment agreements with the key people listed in Exhibit
4.02(a)(i)(ii) and which shall include the terms and conditions provided for in Exhibit 4.02(a)(i)(ii); |
| (jj) | delivery to the Buyer of an extract from the Commercial Register of Next Metrology maintained by
the Municipal Court in Prague dated as of a date as near as practicable to the Completion Date; |
| (kk) | delivery to the Buyer of a resolution of Next Metrology’s General Meeting: |
| (i) | approving all documents under Sections 4.02(a)(i)(aa)(i) through 4.02(a)(i)(aa)(vi) and under Section
4.02(a)(i)(ff), |
| (ii) | recalling Mills and Mr. Štěpán Hřivna from the office of managing directors
(in Czech: jednatel) of Next Metrology with effect as from the Completion Date, |
| (iii) | appointing new managing directors of Next Metrology selected by the Buyer and with effect as from
the Completion Date (the Seller shall bear no liability for the appointment and actions of the newly appointed managing directors), |
| (iv) | unanimously approving transfer of the Share, of the Topmes Share and of the Muscarella Share to
the Buyer (the resolution of Next Metrology’s General Meeting in this regard shall be in the form of notarial deed); |
| (ll) | delivery to the Buyer of waivers by the Seller in the form attached as Exhibit 4.02(a)(i)(ll) by
which the Seller waives his right of first refusal to the Topmes Share and of the Muscarella Share. |
| (ii) | the Buyer shall cause the following to occur or have occurred: |
| (aa) | delivery to the Seller of the evidence of the payment, by bank wire transfer, of the Purchase Price,
except for the portion of the Purchase Price credited by the Buyer to the Indemnity Holdback Account; |
| (bb) | delivery to the Seller of a certified copy of a power of attorney conferring the authority of each
person entering into an agreement or document on behalf of the Buyer, if applicable; |
| (iii) | the Seller and the Buyer shall, each to the extent within their control: |
| (aa) | cause the execution by the Buyer and Seller of the OITA. |
| (iv) | All conditions to Completion under both the Muscarella SPA and the Topmes SPA, except for the consummation
of the Completion action consisting of the occurrence of Conditions to Completion under this Agreement, have occurred. |
| (b) | Completion shall be deemed to have occurred when all of the actions and transactions indicated
in Section 4.02(a) above shall have been duly consummated or waived by the interested Party. |
4.03 Conditions to Completion
| (a) | Completion is subject to the following conditions to Completion which shall have occurred or shall
have been satisfied or waived by the interested Party by the Completion Date: |
| (a1) | conditions in favor of each of the Buyer and the Seller: all actions and transactions provided
for in Section 4.02 shall have been consummated or waived by the interested Party in writing; |
| (a2) | conditions in favor of the Buyer: |
| (i) | Next Metrology’s assets and the Share are free and clear of any Encumbrances; |
| (ii) | no Material Adverse Change occurred in Next Metrology since the Reference Date; |
| (iii) | receipt of Required Consents; |
| (iv) | no legal proceedings are pending which are aimed at preventing the Transaction (or any portion
thereof) from completing. |
| (b) | Should any of the conditions indicated in paragraph (a) above not be satisfied or waived by the
interested Party by the Completion Date, the Parties shall be released from the obligation to complete the acquisition of the Share
contemplated by this Agreement, which shall be deemed terminated. |
| (c) | Should any of the conditions to Completion provided for in this Section 4.03 not be met or satisfied
by the Completion Date due to one of the Parties’ failure to provide its utmost co-operation for the purpose of the
satisfaction of such conditions or to fulfill the obligations provided for in Section 4.02, termination of this Agreement pursuant
to Section 4.03(b) shall be without prejudice to any remedy the other Party may have under the law or pursuant to this Agreement. |
| (d) | The Seller shall deliver to the Buyer a statement of the Seller whereby the Seller acknowledges
receipt of the Purchase Price, except for the portion of the Purchase Price credited by the Buyer to the Indemnity Holdback Account.
Such statement shall be delivered by the Seller to the Buyer within 5 (five) calendar days from the day of its receipt. |
SECTION 5
Pre-Completion Date Covenants
5.01 Management and conduct of Next
Metrology Business
| (a) | From the date hereof and until the Completion Date, unless otherwise contemplated by this Agreement
or approved by the Buyer in writing, the Seller shall cause Next Metrology to: |
| (i) | conduct Next Metrology’s business (including managing the working capital, the collection
of accounts receivable, the payment of accounts payable) with due care and diligence in the ordinary and usual course, consistent
with past practice as disclosed to the Buyer; |
| (ii) | continue to insure all insured assets which are part of Next Metrology’s business, whether
owned or leased, and use, operate, maintain and repair all such assets in accordance with past practice; |
| (iii) | preserve its relationships with the employees, self-employed persons, distributors, agents, representatives,
suppliers and customers; |
| (iv) | refrain from acting or omit to act in such way as to cause a material breach of any material agreement,
contract, commitment or obligation of Next Metrology; |
| (v) | keep Next Metrology’s facilities, machinery and equipment in normal operating conditions
and repair, except for ordinary wear and tear; |
| (vi) | duly and timely comply in all material respects with all of its obligations, including the obligations
arising from any loan or other financial commitment; |
| (vii) | give the Buyer reasonable direct access to management, legal and financial advisors, auditors and
documents of Next Metrology; |
| (viii) | continue to maintain its books and records in accordance with all applicable laws and the Agreed
Accounting Principles. |
| (b) | The Seller agrees, from the date hereof and until the Completion Date, to cause Next Metrology
not to make decisions concerning the matters listed below and not to implement such decisions without the Buyer’s prior written
consent (such consent not to be unreasonably denied or delayed): |
| (i) | sale or disposal of any assets; |
| (ii) | granting of any rights (including in rem securities) in respect of any of Next Metrology’s
assets or the charging of any of said assets with any Encumbrances; |
| (iii) | decisions to incur any indebtedness or to borrow any money or to enter into any factoring or invoice
discount agreement; |
| (iv) | extension of the terms of payment of any payables or other liabilities or of any receivables or
discount any receivables; |
| (v) | transactions (including share capital increase or decrease) which affect the share capital of Next
Metrology; |
| (vi) | the granting of any rights (including in rem security rights) on any of the shares of Next
Metrology or any further share to be issued by Next Metrology and issuance of any bond or other securities; |
| (vii) | decisions to undertake any capital commitment (purchase or financial / capital lease of fixed or
other assets); |
| (viii) | decisions to enter into any partnership, consortium, association, joint venture agreements; |
| (ix) | change of the remuneration of any of the employees, other than increases required by the law or
by the applicable collective bargaining agreements; |
| (x) | recruitment of any new registered managing director or any key manager; |
| (xii) | acquisition or disposal of equity interests in other entities or of businesses as going concerns
or any branches thereof; |
| (xiii) | agreements with customers or suppliers (including purchase orders) (aa) which have each a value
greater than EUR 30,000 as to customers contracts and EUR 30,000 as to suppliers, or (bb) whereby the counterpart may withdraw
or terminate without cause, or (cc) whereby the counterpart may withdraw or terminate for change of control, or (dd) which provide
for restrictions to Next Metrology’s or any of Next Metrology’s present or future Affiliates’ freedom to operate
in the market, or (ee) whereby Next Metrology must give unusual warranties or guarantees, or (ff) which contemplate unusual payment
terms if compared with standard market practice; |
| (xiv) | agreements with related parties (including shareholders, directors or employees of Next Metrology
or relatives of the shareholders or of the directors or employees); |
| (xv) | change in accounting methods, policies or procedures or presentations of accounts; declaration
and distribution of dividends or capital funds; |
| (xvi) | settlements of disputes; |
| (xvii) | guarantees to secure the obligations of a third party; |
| (xviii) | liquidation; dissolution; mergers, de-mergers and restructurings; |
| (xx) | permitting the lapse or forfeiture of intellectual property rights or other intangible assets; |
| (xxi) | fail to file any tax returns or any other report to any authority as required under the law or
any contract by its applicable due date or fail to pay any taxes that first become due and payable after the date hereof, as and
when they first became due and payable; |
| (xxii) | negotiations for the settlement or compromise, settlements or compromise of any tax liability; |
| (xxiii) | enter into or amend any agreement, except for acceptance or placement of purchase orders in the
ordinary course of business; |
| (xxiv) | pay any dividend or distribution; |
| (xxv) | terminate any material agreement; |
| (xxvi) | taking any action that would make any of the representations and warranties hereof untrue or failing
to take any action that would prevent any of the representations and warranties from becoming true. |
| (c) | The Seller agrees to use his best efforts to cause Next Metrology to take such actions and to execute
such certificates and other documents as from time to time shall be reasonably requested by the Buyer to allow the Buyer to make
any tax election requested by the Buyer (including, without limitation, an entity classification election under U.S. Treasury Regulation
Section 301.7701-3(c)(1)(i) on Form 8832 with an effective date that is the day immediately preceding the Completion). |
5.02 Site visits
The Seller shall ensure, prior to Completion
Date, that representatives of the Buyer are allowed to visit the Property and the facilities of Next Metrology, upon the Buyer’s
reasonable request, which shall be made in writing (also via email) at least 2 Business Days before the date of the visit; in any
event, the Buyer hereby acknowledges that the visit on site shall be carried on in a manner which will not unreasonably disrupt
the normal and ordinary activity of Next Metrology, its directors, managers and employees.
5.03 Other Pre-Completion Date Covenants
| (a) | The Seller shall ensure that, from the date hereof until the Completion Date, the Buyer will have
access to Next Metrology’s books, records, contracts and personnel, upon its reasonable request which shall be made in writing
(also via email) before the date of the relevant access, being agreed and understood that such access shall be carried on in a
manner which will not unreasonably disrupt the normal and ordinary activity of Next Metrology, its directors, managers and employees. |
| (b) | The Seller and the Buyer shall take, and shall cause Next Metrology to take all necessary actions
to obtain the Required Consents, so that they are delivered prior to the Completion Date. |
| (c) | The Seller shall and shall cause Next Metrology to cause the representations and warranties referred
to in Sections 6(b) and 7.02 to be accurate, true and correct as at the Completion Date as if given at the Completion Date. |
| (d) | Prior to the Completion Date, the Seller will not, and will cause its respective officers, directors,
employees, legal counsel, accountants, advisors or other consultants or agents to not directly or indirectly, solicit or enter
into any agreement or negotiations with, or furnish information to, any person with respect to any proposal to acquire any of the
share capital or a substantial portion of the assets of Next Metrology or to merge or consolidate with Next Metrology. If the Seller
receives any such proposals, or inquiries regarding the same, the Seller shall promptly notify the Buyer of the terms of such proposals
or inquiries and the identity of the parties making the same. |
SECTION 6
Due diligence
| (a) | Prior to the execution of the Agreement, the Buyer has conducted a full legal, economic, financial,
accounting, commercial, tax, employment, social security, corporate and environmental due diligence on Next Metrology (“Due
Diligence”). Without prejudice to any other term and condition contemplated by this Agreement, on the basis of the outcome
of the Due Diligence, the Buyer has agreed to enter into this Agreement. |
| (b) | The Seller warrants and represents that all information and data which the Seller, the directors,
employees or advisors of Next Metrology provided to the Buyer during the Due Diligence process and the negotiations prior to the
execution of the Agreement are true, correct and not misleading and fairly reflect the financial, economic and business situation
of Next Metrology and no relevant document and information requested by the Buyer during the Due Diligence has been withheld. |
SECTION 7
Representations and warranties
7.01 Buyer’s representations
and warranties.
The Buyer represents and warrants to the
Seller that the representations and warranties indicated in Exhibit 7.01 are true, correct and not misleading as at the date of
this Agreement and hereby acknowledges that each of such representations and warranties is material and essential to the Seller,
who is relying on such representations and warranties in entering into this Agreement. For the avoidance of any doubt, it is agreed
that the Buyer’s representations and warranties shall not be affected, limited or diminished by any knowledge by the Seller
of the matters covered by the representations and warranties.
7.02 Seller’s representations
and warranties.
| (a) | The Seller represents and warrants to the Buyer that the representations and warranties indicated
in Exhibit 7.02 and Section 6(b) are true, correct and not misleading as at the date of this Agreement, except as otherwise Disclosed
in the Disclosure Letter attached hereto as Exhibit 7.02(a), and hereby acknowledges that each of such representations and warranties
is material and essential to the Buyer, who is relying on such representations and warranties in entering into this Agreement.
For the avoidance of any doubt, it is agreed that the Seller’s representations and warranties shall not be affected, limited
or diminished by any investigation (including the Due Diligence) up to this date or hereafter made by the Buyer (directly and through
its advisors) with respect to Next Metrology, the Share, Next Metrology’s assets, liabilities and properties or by any knowledge
by the Buyer of the matters covered by the representations and warranties, except for the matters Disclosed in the Disclosure Letter.
As of the date of this Agreement, the Buyer’s representatives, Jeffrey Armstrong or Keith Marchiando , do not have actual
conscious awareness of any inaccuracy or breach of the representations and warranties of the Seller in this Agreement. |
| (b) | Each of the representations and warranties made or given by the Seller in or pursuant to Sections
6(b) and 7.02 of this Agreement or confirmed by the Seller at the Completion Date pursuant to Section 4.02(a)(i)(ee) shall be construed
as a separate and independent representation and warranty and, except where expressly stated, shall not be limited or restricted
by reference to or inference from the terms of any other representations and warranties or any other provision of this Agreement. |
| (c) | The rights and remedies of the Buyer in respect of any breach of the representations and warranties
made or given by the Seller in or pursuant to this Agreement or confirmed by the Seller at the Completion Date pursuant to Section
4.02(a)(i)(ee) shall not be affected by completion of the purchase of the Share, by Buyer’s termination or failure to terminate
this Agreement, by any failure to exercise or delay in exercising any right or remedy or by any other event or matter whatsoever,
except a specific and duly authorised written waiver or release expressly referring to such breach. |
| (d) | The Parties agree that provisions of the Czech Civil Code regarding liability for defects, including,
but not limited to, Sections 1914(2) through 1925 and Sections 2099 through 2117 of the Czech Civil Code, shall not be applicable
to this Agreement. |
SECTION 8
Breach of representations and warranties
8.01 Breach of Seller’s representations
and warranties
| (i) | As the only and sole remedy available to the Buyer under this Agreement in connection with the
breach of the Seller’s representations and warranties, the Buyer shall have a contractual claim to (and the Seller shall
pay to the Buyer the amount of) a discount of the Purchase Price (“Discount”), corresponding to the amount of
Detriment (aa) resulting or deriving from the fact that any of the representations and warranties made or given by the Seller in
or pursuant to Sections 6(b) and 7.02 of this Agreement or confirmed by the Seller at the Completion Date pursuant to Section 4.02(a)(i)(ee)
are untrue, incorrect or misleading, (bb) resulting or deriving from any discrepancy between the representations and warranties
confirmed by the Seller at the Completion Date pursuant to Section 4.02(a)(i)(ee) and the situation as at the Completion Date,
or (cc) resulting or deriving from any acts or omissions of Next Metrology or Seller on or prior to the Completion Date. |
| (ii) | For the purposes of this Agreement, the “Detriment” shall, irrespective of the
size of Seller’s ownership interest in Next Metrology, be quantified as an amount equal to the aggregate of: |
| (aa) | the amount needed to compensate for the decrease in the value of Next Metrology compared to the
value of Next Metrology that it would have if the Seller’s representation or warranty had not been breached or had not been
untrue or misleading; and |
| (bb) | all losses, costs and expenses including, without limitation, damages, legal and other reasonably
incurred professional fees and costs, penalties, expenses incurred by the Buyer or Next Metrology and resulting or deriving from
the fact that any of the representations and warranties made or given by the Seller in or pursuant to Sections 6(b) and 7.02 of
this Agreement or confirmed by the Seller at the Completion Date pursuant to Section 4.02(a)(i)(ee) are untrue, incorrect or misleading. |
| (iii) | The obligation to pay the Detriment in the form of the Discount provided for in this Section 8.01
shall extend to all costs, expenses (including reasonable attorney’s fees and experts’ costs) and disbursements incurred
by the Buyer in enforcing its rights in respect of a claim under this Agreement and/or by Next Metrology in enforcing its rights
and in resisting any Third Party Claim. |
| (iv) | The Parties agree that any payments due by the Seller for breaching the Seller’s representations
and warranties shall be made by the Seller directly to the Buyer, unless the Buyer gives instructions to the Seller to make such
payments directly to Next Metrology. |
| (v) | The Seller shall be under no obligation to grant to the Buyer under this Section 8.01 Discount
for any Detriment in relation to which, by the time the payment by the Seller is due, either the Buyer or Next Metrology receives
compensation, indemnification or reimbursement by third parties (including insurance companies), without recourse, to the extent
of such compensation, indemnification or reimbursement. |
| (vi) | If any amount payable pursuant to this Section 8.01(a) is subject to Tax, that amount shall be
increased so as to ensure that the net amount received by the Buyer and/or Next Metrology shall, after Tax, be equal to that which
would have been received had the payment and any increased payment not been subject to Tax. |
| (vii) | If any amount is paid by the Seller to the Buyer pursuant to this Section 8.01(a), the amount of
such payment shall be deemed to constitute a reduction in the Purchase Price payable under this Agreement. |
| (viii) | Any claims arising from a breach of the Seller’s representations and warranties may be recovered
by the Buyer only once in respect of the same breach. If a claim for a breach of Seller’s representations and warranties
is recovered by Next Metrology, then the Buyer is excluded from recovering any part of the Detriment in the form of the Discount
for the same reason to the extent already recovered by Next Metrology. Likewise, if a claim for a breach of a Seller’s representations
and warranties is recovered by the Buyer, then Next Metrology is excluded from recovering any payments for the same reason to the
extent already recovered by the Buyer. With regard to any breach of the Seller’s representations and warranties, the Buyer
shall have no rights in relation to the Seller other than those stipulated in this Section 8 (save for the Buyer’s right
to terminate this Agreement pursuant to Section 14). Should the Buyer, Next Metrology or any Affiliate claim any Detriment from
the Seller on any other legal ground in an amount exceeding the claims which the Buyer may raise under this Agreement, the Buyer
undertakes to fully indemnify the Seller for any payments the Seller has to make in this situation which would exceed the claims
which the Buyer may raise under this Agreement. |
| (b) | Limitations to the Seller’s liability |
| (i) | The Seller shall only be liable to the Buyer under this Section 8.01 for any Detriment if the total
amount of the Detriment exceeds Eur 10,000 (ten thousand), in which case the Seller shall be liable only for the excess amount. |
| (ii) | The Seller shall be liable to the Buyer under this Section 8.01 for any Detriment up to a maximum
amount equal to Eur 100,000 (one hundred thousand) (the “Discount Cap”). |
| (iii) | The limitation to the Seller’s liability provided for in paragraphs (b)(i) and (b)(ii) above
shall not apply to Detriment resulting or deriving from any inaccuracy or breach of any of the representations and warranties relating
to authority, good standing, title to the Share, regulatory compliance, Encumbrances, tax or social security matters, in which
cases the Seller shall be liable to the Buyer for any Detriment up to a maximum amount equal to 100 per cent of the Purchase Price. |
| (iv) | Irrespective of any other provision of this Agreement, the remedy available to the Seller in connection
with the breach of the Seller’s representations and warranties shall not be limited in any way if such breach of the Seller’s
representations and warranties results or derives from fraud or intentional misrepresentation. |
| (v) | The Parties agree that any event or circumstance Disclosed by the Seller in Exhibit 7.02 or the
Disclosure Letter will exclude the Seller’s liability under Section 8.01 as to the Detriment which specifically relate to
the disclosure. |
| (vi) | The Seller shall not be liable for specific Detriment to the Buyer to the extent that: |
| (aa) | The reasons for which the Detriment has arisen are attributable (wholly or partially) to: |
| (i) | changes made after the Completion to the Agreed Accounting Principles unless such changes are made
in accordance with applicable legal regulation or specifically requested by competent state authorities; or |
| (ii) | a retroactive change in the procedure of the relevant tax administrator published after the Completion,
or |
| (iii) | the adoption of a law after the Completion having retroactive effect for Next Metrology; |
| (c) | Time limits to Seller’s liability |
The Seller shall not be liable
to the Buyer under Section 8.01 in respect of any Detriment if the relevant Detriment Claim is notified to the Seller after:
| (aa) | the 20th (twentieth) Business Day after the later of (i) the date of expiration of the
relevant statute of limitation or (ii) the 5th (fifth) anniversary of the Completion Date, as to any Detriment referred
to in paragraph (b)(iii) above; |
| (bb) | the 20th (twentieth) Business Day after 12 months from the Completion Date, for any
Detriment relating to matters other than those indicated in sub-paragraph (aa) above. |
8.02 Breach of Buyer’s representations
and warranties
| (a) | The Buyer shall pay to the Seller as a contractual claim originating under this Section 8.02 the
amount of all losses, damages, costs and penalties incurred in, or suffered by the Seller, resulting or deriving from any inaccuracy
or breach of any of the representations and warranties made or given by the Buyer in or pursuant to this Agreement. |
| (b) | The provisions of Section 8.01 (including those concerning liability limitations) shall apply to
the obligations of the Buyer herein mutatis mutandis. |
8.03 Detriment Claim procedure
| (a) | Whenever an event or circumstance which could give rise to a Detriment Claim (including a Third
Party Claim) (“Detriment Event”) occurs for which a Party may seek remedy under Section 8, the Party seeking
the remedy (“Claiming Party”) shall notify in writing the Party against which the Detriment Claim is made (“Liable
Party”) (and, for a Third Party Claim, within 120 (one hundred twenty) days after the Claiming Party has actual knowledge
of the Detriment Event) (“Notice of Claim”). The Notice of Claim shall specify relevant facts known to the Claiming
Party giving rise to the Detriment Claim, the amount of the Detriment and the request for payment of the Detriment in the form
of the Discount in case of the Buyer’s claim or request for payment of Detriment in case of Seller’s claim. |
| (b) | If the Detriment Event is a Third Party Claim against Next Metrology, the following shall apply: |
| (i) | the Buyer shall cause Next Metrology to diligently take all reasonable defensive steps; |
| (ii) | in the defense against the Third Party Claim, the Buyer shall cause Next Metrology to consult with
the Seller; |
| (iii) | Next Metrology’s management and/or the Buyer shall inform the Seller about the status of
the relevant matter and about any developments in connection with the Third Party Claim; |
| (iv) | in any event, the Buyer shall not agree to any settlement of the Third Party Claim or to any waiver
related thereto, without the prior written consent of the Seller, not to be unreasonably withheld or delayed and which shall be
considered as granted absent response within 10 (ten) Business Days following written request from the Buyer to the Seller. Should
the Seller deny his approval, as a condition to the effectiveness of such denial, (aa) he shall specify the reasons for the denial
in writing and (bb) he shall be liable for the relevant Detriment including the immediate payment of all costs incurred to defend
such Third Party Claim as they are incurred by Claiming Party; |
| (v) | the relevant obligations to pay the Detriment in the form of the Discount shall survive until the
Third Party Claim has been finally resolved. |
| (c) | Payments of all amounts due by the Liable Party pursuant to Section 8 shall be made as follows: |
| (i) | if the Detriment Event is a Third Party Claim against Next Metrology, payments shall be made within
15 (fifteen) Business Days from receipt of the Buyer’s written request which shall bear a copy of: |
| (aa) | the enforceable decision, award or order, whether final or provisional, served upon Next Metrology
and which ascertains or determines the Detriment ; or |
| (bb) | the settlement agreement entered into by Next Metrology which determines a Detriment . |
| (ii) | in case of a Detriment Event other than a Third Party Claim against Next Metrology, within 10 (ten)
Business Days from receipt of the Notice of Claim; provided that the Seller has not objected in writing to such Notice of Claim
within such 10 (ten) Business Day period (“Notice of Objection”). Any such Notice of Objection shall state the
nature and basis of any such objection and the monetary amount of the claim in dispute. Payment of such claim shall be made by
the Seller, together with interest thereon from the date of the original Notice of Claim until the date paid, at the interest rate
set forth in Section 15.11, within 15 (fifteen) Business days from receipt of the Buyer’s written request, which shall bear: |
| (aa) | a certified copy of an award (whether final or provisions) by the Arbitral Tribunal referred to
in Section 16.02 which ascertains or determines that the Seller is liable for the claim; or |
| | |
| (bb) | a copy of the settlement agreement entered into between Buyer and the Seller which determines the
amount that the Seller must pay relating to the claim. |
SECTION 9
Further covenants and specific obligations
of the Seller
9.01 General
The Parties agree that:
| (i) | for the avoidance of any doubt, the Seller’s obligations provided for in this Section 9 shall
not be subject to Section 8 nor to the same restrictions, limitations and procedure therein; |
| (ii) | any payments due by the Seller pursuant to this Section 9 shall be made by the Seller directly
to the Buyer, unless the Buyer gives instructions to the Seller to make such payments directly to Next Metrology. |
9.02 Managing Directors’ Claims
The Seller shall indemnify and hold the
Buyer and Next Metrology harmless from and against any claim (and any consequence thereof) by the managing director of Next Metrology
who was in office at any time up to Completion, in relation to matters relating to the period up to Completion.
9.03 Trade-names, trademarks and
other intellectual or industrial property
The Seller shall not use or attempt to
use, in the course of any business on his own account or in conjunction with or on behalf of any person or in any other manner
whatsoever, directly or indirectly, the trade-names, trademarks, service marks, brand names, designs or logos, domain names and
any other similar intellectual property, whether registered or not, or any other trade-name, trademark, service mark, brand name,
design or logo similar to such trade-names, trademarks service marks, brand names, designs, logos, domain names or other similar
intellectual property of Next Metrology; (including the name Next Metrology or TouchDMIS whether used as a standalone name or in
association with other names).
SECTION 10
Restrictive Covenants
| (a) | The Seller agrees that, as from the Completion Date and for a period of 3 (three) years thereafter
(or in the case of the Seller, for the period of time until the expiration date of any restrictive covenants provided for in his
Service Agreement, if shorter), in his capacity as a seller of the Share and irrespective and without prejudice to any other restrictive
covenant he has agreed or will agree to, he shall not: |
| (i) | either on his own account or in conjunction with or on behalf of any person, carry on, engage,
be concerned or interested (directly or indirectly and whether as principal, shareholder, director, employee, agent, distributor,
consultant, partner or otherwise) in the business of designing, engineering, manufacturing, marketing, selling, installing, servicing
and maintaining CMMs and laser-based and other technology, software and applications used in connection with CMMs; |
| (ii) | either on his own account or in conjunction with or on behalf of any person, solicit or endeavour
to entice away from the Company (Buyer, Next Metrology and their respective Affiliates) any person who, at the Completion Date,
is an officer, manager, employee, self-employed person, or consultant of Next Metrology, whether or not such person would commit
a breach of contract by reason of leaving service or office; |
| (iii) | either on his own account or in conjunction with or on behalf of any person, endeavour to entice
away from the Company any person who, at the Completion Date of this Agreement, is a customer of Next Metrology (directly or indirectly
through software sales by original equipment manufacturers, distributors and dealers), whether or not such customer would be in
breach of its contract with Next Metrology or – after Completion – with the Company as a result thereof; and |
| (iv) | either on his own account or in conjunction with or on behalf of any person, carry on, engage,
be concerned or interested (directly or indirectly and whether as principals, shareholders, directors, employees, agents, distributors,
consultants, partners or otherwise) in any business conducted by the Company at the Completion Date, or in any business involving
the design, development, manufacture, sale or servicing of machine vision sensors and systems utilizing electro-optical techniques
or component parts utilized in such sensors or systems. |
| (b) | The Seller and the Buyer represent to each other and acknowledge that the provisions contained
in Section 10(a) are necessary for the protection of the Buyer’s and Next Metrology’s interests and goodwill. The geographical
scope of the Seller’s obligations contained in Section 10(a) shall be the entire world. Should any such restriction or undertaking
be void or voidable but would be valid and enforceable if some part or parts of the restriction or undertaking were deleted or
modified, such restriction or undertaking shall apply with such deletion or modification as may be necessary to make it valid and
enforceable. The consideration for the Seller’s fulfillment of the obligations contained in this Section 10 has been included
in the Purchase Price. |
SECTION 11
Indemnity Holdback Account
| (a) | Upon Completion, the Buyer shall credit, by book entry only, to an escrow ledger account (“Indemnity
Holdback Account”) maintained by the Buyer a portion of the Purchase Price in Cash equal to Eur 100,000 (one hundred
thousand) (“Indemnity Holdback Amount”). The Indemnity Holdback Amount shall serve the purpose to secure the
Seller’s timely fulfillment of all of his obligations as arising from this Agreement (including the obligations provided
for in Sections 8 and 9 (as confirmed pursuant to Section 4.02(a)(i)(ee)) and the obligation deriving from any breach of the obligations
arising from Section 10 (“Contractual Claim”). |
| (b) | Any remaining balance in the Indemnity Holdback Account shall be paid by the Buyer to the Seller
upon expiration of the Indemnity Holdback Account, provided that, if claims which may trigger the Seller’s obligation to
pay a Contractual Claim are pending upon the expiration date: |
| (aa) | the term will be extended until these claims are resolved; |
| (bb) | an amount equal to the lower of the balance of the Indemnity Holdback Account and the aggregate
amount of the outstanding Contractual Claims upon the expiration of the Indemnity Holdback Account will be frozen in the Indemnity
Holdback Account until these claims are resolved. |
| (c) | The Indemnity Holdback Account shall expire twelve months after the Completion Date. |
| (d) | The following amounts shall be credited against and so reduce the Indemnity Holdback Account (as
a result, any Contractual Claim of the Buyer shall thereby be automatically set off against a claim of the Seller to have the equivalent
part of the Purchase Price paid): |
| (i) | amounts mutually agreed upon by the Buyer and the Seller; |
| (ii) | amounts set forth in a certified copy of any award (whether final or provisional) by the Arbitral
Tribunal referred to in Section 16.02 which orders the Seller to pay a Contractual Claim to the Buyer (or Next Metrology), but
only to the extent of the amount to be paid by the Seller as indicated in the relevant award. |
SECTION 12
[Intentionally left blank.]
SECTION 13
[Intentionally left blank.]
SECTION 14
Termination
| (a) | The Parties acknowledge that any Material breach by the Seller of any of the obligations provided
for in Sections 5.01, 5.02 or 5.03, in case the Seller fails to remedy such breach, if the breach is capable of remedy, within
an additional period of 10 (ten) calendar days from the delivery of a written notice by the Buyer to the Seller, shall entitle
the Buyer to terminate this Agreement with immediate effect by way of written notice. |
| (b) | The Buyer shall further be entitled to terminate this Agreement with immediate effect by way of
written notice: |
| (i) | in case any Material breach of any of the representations and warranties given by the Seller pursuant
to this Agreement occurs prior to or on the Completion Date and the Seller fails to remedy such breach, in case the breach is capable
of remedy, within an additional period of 5 (five) calendar days from the delivery of a written notice by the Buyer to the Seller; |
| (ii) | in case either Party receives an order or other enforceable instrument issued by a court of law
or any other governmental authority or agency which enjoins that Party to refrain from executing any document or taking any action
required for Completion pursuant to this Agreement or the law; |
| (iv) | the Seller or Next Metrology is insolvent. |
| (c) | With the exception of instances set forth in this Section 14, the Parties, to the maximum extent
allowed by Czech law, exclude all provisions of the Czech Civil Code and other applicable regulations under which a Party might
be entitled to withdraw from or otherwise terminate this Agreement. |
| (d) | The Parties agree that the right to terminate this Agreement under this Section 14 cannot be utilised
after the Completion occurs. |
SECTION 15
Miscellaneous
15.01 Compliance
| (a) | The Parties acknowledge that, as from the Completion Date, Next Metrology shall adopt and implement
organisational and internal audit and control models and procedures in compliance with those applied by the group to which the
Buyer belongs, including its ethical rules, compliance, anti-bribery, anti-corruption and anti-money laundering regulations. The
Seller shall provide his utmost assistance and support in the process which will be required to implement such models and procedures
so as to guarantee as swift an integration of Next Metrology into the Buyer’s group as possible after Completion. |
15.02 Confidentiality
| (a) | Each of the Seller, Next Metrology and the Buyer shall at all times keep strictly confidential
and, as applicable, each of the Seller, Next Metrology and the Buyer shall procure that their respective officers, employees and
professional advisers keep strictly confidential any information pertaining to this Agreement (including but not limited to the
purchase price and terms of sale) and the financials, business operations, marketing practices or policies, litigation, identity
of customers as well as any other confidential aspect of Next Metrology, except for such information relating to this Agreement
which Buyer and its Affiliates may be required to disclose in connection with reporting and disclosures requirements of the Buyer
and its Affiliates under applicable law or the rules of The Nasdaq Stock Market and except for any such information which: |
| (i) | at the time of disclosure is publicly available or becomes publicly available otherwise than, directly
or indirectly, through the breach by any of the Seller, Next Metrology or the Buyer of this Section 15.02 or the failure of any
officer, employee or professional adviser referred to above to keep the same confidential; or |
| (ii) | is required to be disclosed by any other applicable law or by any supervisory or regulatory body,
in which case the Party shall inform, to the extent reasonably practicable, the other Party that such disclosure is required, and
the Parties shall use their reasonable efforts to agree in good faith on the content of such disclosure prior to it being made. |
| (b) | The Seller and Next Metrology acknowledge that an Affiliate of the Buyer is listed on The Nasdaq
Stock Market and its stock is registered with the Securities and Exchange Commission and is therefore subject to strict regulatory
obligations in relation to the disclosure of any information and data concerning transactions similar to the transaction contemplated
by this Agreement. Therefore, the Seller and Next Metrology agree that any public disclosure of any information or data concerning
the transaction contemplated by this Agreement, including any press release, shall be made only at such time and in such form and
substance as acceptable to the Buyer. |
15.03 Entire agreement and amendments
| (a) | This Agreement and the OITA shall together form the sole and entire agreement between the Parties
governing the Transaction as contemplated herein and supersedes all prior verbal and/or written agreements between the Parties
concerning its subject matter. In the event of any inconsistency between the Agreement and the OITA, this Agreement shall prevail.
The Agreement shall survive conclusion of OITA in its entirety with the exception of the obligation of the Parties to enter into
the OITA under Section 4.02(a)(iii)(aa), which shall be consumed by conclusion of the OITA. |
| (b) | The amendments to this Agreement shall be valid and effective if agreed upon by the Parties in
writing. |
15.04 Successors - Assignment
This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the Parties and their respective permitted assignees, heirs or successors.
Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by one Party without the prior
written consent of the other Parties, while such consent might not be unreasonably withheld or delayed; provided that Buyer may
Assign its rights under this Agreement to a party who acquires all or substantially all of the Assets of Next Metrology, provided
that such assignment shall not relieve the Buyer of its obligations under this Agreement without the prior written consent of the
Seller.
15.05 Notices
Any communication or notice required or
permitted to be given under this Agreement shall be made in writing and in the English language by way of either registered mail
or telefax, addressed, in each case, to the addresses indicated below (or to such other address as each Party may hereafter provide
to the other by written notice as provided herein) and with a copy by e-mail and it shall be deemed to have been duly and validly
given: (i) in case of notice sent by registered mail, upon receipt of the same; and (ii) in case of notice sent by telefax, upon
acknowledgement of successful and complete transmission by the fax machine of the sender:
if to Buyer:
c/o Perceptron, Inc.
47827 Halyard Drive
Plymouth, MI 48170
U.S.A.
Fax No. +1-734-414-4800
Attention: Jeffrey M. Armstrong, President
e-mail: armstrong@perceptron.com
with a copy (which shall not constitute
notice) to:
Thomas S. Vaughn
Dykema Gossett, PLLC
400 Renaissance Center
Detroit, MI 48243
Fax No.: +1-313-568-6915
e-mail: tvaughn@dykema.com
if to the Seller:
Keith Mills
[ ]
with a copy (which shall not constitute
notice) to:
T.S. Skye Suh, Esq.
Skye Suh, PLC
32000 Northwestern Hwy. Suite 260
Farmington Hills, MI 48334
Fax: (248) 932-6355
e-mail: ssuh@skyesuhplc.com
15.06 Language
This Agreement is entered into in the English
language. The Parties hereby acknowledge to have fully understood its content and all of its terms and conditions.
15.07 Severability
If any provision of this Agreement is held
to be illegal, invalid, unenforceable or deemed non-existent under present or future laws effective during the term of this Agreement,
such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid, unenforceable,
or non-existent provision had never comprised a part of this Agreement and the remaining provisions of this Agreement shall remain
in full force and effect and shall not be affected by the illegal, invalid, unenforceable or non-existent provision or by its severance
from this Agreement. Furthermore, in lieu of each such illegal, invalid, unenforceable or non-existent provision, a provision
as similar in terms to such illegal, invalid, unenforceable or non-existent provision as may be possible and be legal, valid and
enforceable shall be added automatically, as a part of this Agreement.
15.08 Fees and expenses
| (a) | Except as otherwise expressly provided for by this Agreement, all legal and other advisors’
fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be borne by
the Party incurring such fees, costs or expenses. |
| (b) | All stamp duties, registration taxes and notary fees relating to the transfer of the Share pursuant
to Section 2(b) shall be borne by the Buyer. |
15.09 Obligations of the Seller:
general clause
| (a) | the Seller hereby agrees to cause Next Metrology to duly and timely fulfill all of the obligations
arising from this Agreement. |
| (b) | Where the Seller covenants with the Buyer that he shall procure that a person different from the
Seller will comply with any of the provisions of this Agreement, the Seller thereby covenants pursuant to Section 1769 second sentence
of the Czech Civil Code that if such person will not comply with the respective provisions of this Agreement he will cover damage
suffered by the Buyer and/or Next Metrology resulting from such failure to comply. |
15.10 Interest Rate
Should any payment due under this Agreement
by either Party not be made on or before the agreed term for payment, annual interest equal to EURIBOR 3 months plus 500 basis
points (or the maximum percentage allowed by anti-usury laws and regulations from time to time, if lower) will accrue from the
date of expiration of the payment term until the actual payment is provided.
15.11 Waivers
| (a) | No delay, indulgence or omission in exercising any right, power or remedy provided by this Agreement
or by law shall operate to impair or be construed as a waiver of such right, power or remedy or of any other right, power or remedy. |
| (b) | The Seller agrees with the Buyer: |
| (i) | to waive any claim or remedy or right which he may have as at Completion; and |
| (ii) | that Next Metrology and any managing director, officer or employee of Next Metrology shall have
no liability whatsoever to the Seller on or after Completion, |
in respect of any misrepresentation,
inaccuracy or omission in or from any information or advice supplied or given by Next Metrology or a director, officer or employee
of Next Metrology for the purpose of assisting the Seller in giving any warranty, representation, undertaking or covenant, in preparing
due diligence documents and in entering into this Agreement or any agreement or document entered into pursuant to this Agreement.
15.12 Survival of the Agreement
The provisions of this agreement insofar
as they have not been performed at Completion shall remain in full force and effect notwithstanding Completion, including conclusion
of the OITA.
SECTION 16
Governing Law - Arbitration
16.01 Governing Law
This Agreement shall be governed by and
construed in accordance with the laws of the Czech Republic, without regard to the provisions governing conflicts of laws.
16.02 Arbitration
| (a) | Any dispute arising out of or related to this Agreement shall be settled by arbitration under the
Rules of Arbitration of the International Chamber of Commerce of Paris, by three arbitrators, appointed in accordance with such
Rules, who shall be fluent in the English language. |
| (b) | The place of the arbitration shall be Paris, France. The language of the arbitration shall be English. |
| (c) | Any dispute arising out of or related to this Agreement and any comparable dispute arising out
of the Muscarella SPA, the Topmes SPA and the Coord3 Agreement shall be heard and decided in a single arbitration proceeding. |
SIGNED by KEITH MILLS
Signature |
: /s/ Keith Mills |
SIGNED by
Perceptron, Inc. |
|
|
|
Margaret Mary Kaczmarek Nelson |
|
Vice President |
|
Signature |
: /s/ Margaret Mary Kaczmarek Nelson |
EXHIBIT 1.03
Certain Definitions
“Affiliates” |
shall mean persons controlling, controlled by or under common control with the person. For purposes of this Agreement, “control” shall be interpreted in accordance with Section 74 et seq. of Act No. 90/2012 Coll. of the Czech Republic, Act on Business Companies and Cooperatives, as amended. |
|
|
“Agreed Accounting Principles” |
shall mean the Czech Accounting Principles.
|
“Agreement” |
shall mean this agreement, inclusive of the Exhibits, Appendices and Annexes. |
|
|
“Annexes” |
shall mean all annexes, as listed above in the table of contents. |
|
|
“Appendices” |
shall mean all appendices, as listed above in the table of contents. |
|
|
“Business Day/s” |
shall mean each calendar day other than Saturdays, Sundays and any other days on which banks are closed for business in the City of Torino, Italy and the City of Prague, Czech Republic. |
|
|
“Buyer” |
shall have the meaning indicated in the headings of this Agreement. |
|
|
“Claiming Party” |
shall have the meaning indicated in Section 8.03(a). |
|
|
“CMM” |
means coordinate measuring machine and equipment. |
|
|
“Company” |
shall mean the Buyer, Next Metrology and their Affiliates. |
|
|
“Completion” |
shall mean the consummation of all of the actions and transactions indicated in Section 4.02 (unless waived by the interested Party) and the completion of the transfer of full title to and ownership of the Share to the Buyer as contemplated in this Agreement. |
|
|
“Completion Date” |
shall mean the date upon which Completion will take place, as specified in Section 4.01(a). |
“Completion Date Debt” |
shall mean the Debt of Next Metrology as at the Completion Date, to be determined in accordance with the Agreed Accounting Principles. |
|
|
“Completion Date Net Working |
shall mean the Notional Net Working Capital of Next |
Capital” |
Metrology as at the Completion Date, to be determined in |
|
accordance with the Agreed Accounting Principles. |
|
|
“Contractual Claim” |
shall have the meaning indicated in Section 11(a). |
|
|
“Coord3” |
shall mean Coord3 Industries s.r.l. |
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“Coord3 Agreement” |
shall mean that certain Agreement for the purchase of 100% of the business of Coord3 Industries s.r.l. which will be entered into between Perceptron CMM, LLC, a company established under the laws of the State of Michigan, United States of America, with offices at 47827 Halyard Drive, Plymouth, Michigan 48170, United States of America, State of Michigan ID no. E5614M, Muscarella and Coord3 Industries s.r.l., a company established under the laws of Italy, with registered offices at corso Siccardi 11bis, Torino, Italy, registered with the Company Registry of Torino, Italy, registration and tax registration number 09061500014 on January 29, 2015. |
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“Czech Accounting Principles” |
shall mean Czech Republic generally accepted accounting principles. |
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“Czech Civil Code” |
Act No. 89/2012 Coll. of the Czech Republic, Civil Code, as amended |
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“Debt” |
shall mean all liabilities of Next Metrology other than those included in the calculation of the Notional Net Working Capital. |
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“Detriment” |
shall have the meaning indicated in Section 8.01(a)(ii). |
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“Detriment Claim” |
shall mean a claim raised under Section 8.01 or under Section 8.02. |
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“Detriment Event” |
shall have the meaning indicated in Section 8.03(a). |
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"Disclosed" |
means a matter that is fully and fairly disclosed with sufficient detail and accuracy (as to its nature, legal purpose and title and specific amount) so as to enable a reasonable assessment of its impact on Next Metrology. |
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"Disclosure Letter" |
shall mean the letter in the agreed form dated the same date as this Agreement from the Seller to the Buyer disclosing information constituting exceptions to the representations and warranties indicated in Sections 6(b) and 7.02 of this Agreement. |
“Discount” |
shall have the meaning indicated in Section 8.01(a)(i). |
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“Discount Cap" |
shall have the meaning indicated in Section 8.01(b)(ii). |
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“Disputed Matters” |
shall have the meaning indicated in Section 3.03(b). |
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“Due Diligence” |
shall have the meaning indicated in Section 6. |
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“Encumbrance” |
shall mean any mortgage, charge, pledge, lien, security interest or attachment of any nature whatsoever, note of the Cadastral Office indicating any potential or actual change in the legal status of a property (in Czech: Plomba), options, right of first refusal, easement (whether registered or unregistered), title retention, third party rights (including in rem rights) or other securities or de facto situations attached to a certain object or asset or share and limiting the rights thereupon. “Encumbrances” shall be construed accordingly. |
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“Environmental Law” |
shall mean all applicable international treaties, laws, conventions, EU directives or regulations, statutes, regulations, subordinate legislation (in particular any regional, provincial municipal and other local law and/or regulation), applicable in Italy, which from time to time relate to Environmental Matters and Environmental Licences and all enforceable orders or other instruments and other requirements of or issued by any competent public authority, court or agency, concerning the protection of the environment or the prevention, limitation, mitigation or remediation of harm to the environment or relating to Environmental Matters. |
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“Environmental License” |
shall mean any permit, licence, authorization, consent or other approval, registration, notification or communication required by any Environmental Law for the operations of Next Metrology or of its business or in relation to the ownership, lease, occupation or use of the properties used for the operations of the Company or of its business. |
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“Environmental Matters” |
shall mean all or any of the following: air (including all layers of atmosphere), water and land (including, without limitation, any of the foregoing within buildings and other material or man-made structures above or below the ground) as well as all organic and inorganic matter and living organisms and the systems supported by or including any of the components of the foregoing; the disposal, spillage, deposit, escape, discharge, leek, emission or presence of, contact with and exposure of, any person to hazardous materials or Waste, as well as the creation of any noise, vibration, radiation, nuisance or other adverse impact on the environment, maintenance of human health and safety, and any other matters relating to the condition, protection, maintenance, restoration or replacement of the environment or any part of it. “Environmental” shall be interpreted accordingly. |
“Indemnity Holdback Account” |
shall have the meaning indicated in Section 11(a). |
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“Indemnity Holdback Amount” |
shall have the meaning indicated in Section 11(a). |
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“Exhibit/s” |
shall mean all exhibits, as listed above in the table of contents. |
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“Financial Debt” |
shall mean all financial debts, inclusive of any bank debt, invoice discounting facility, loan, borrowing, overdraft, shareholders’ loan, financial (capital) lease. |
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“Government Debt” |
shall mean the total of all amounts owed by Next Metrology to various government tax or social security authorities or agencies; including amounts owed under so called instalment agreements and all other amounts owing that have not yet been formalized into agreements (including interest and penalties); including both short term and long term amounts owed. |
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“Governmental Authority” |
shall mean any foreign, European Union, or Czech national, regional or local governmental authority, quasi-governmental authority, court, or any regulatory, administrative or other agency, or any subdivision, department or branch of any of the foregoing. |
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“Governmental Authorization” |
shall mean any consent, permit, concession, license, registration, approval, authorization, permit, order, exemption, certificate, franchise, or variance issued, granted, given, or otherwise made available by or under the authority of any Governmental Authority or pursuant to any applicable law. |
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“Hazardous
Substance/s” shall mean any substance which is defined to be hazardous, dangerous, toxic or harmful under any
Environmental Law. |
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“Liable Party” |
shall have the meaning indicated in Section 8.03(a). |
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“Material” or “Materially” |
|
“material” or “materially” |
shall mean a breach, change or effect having an impact greater than, or involving more than, Eur 4,000. |
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“Material Adverse Change” |
shall mean any change or effect that is Material that is materially adverse to the financial situation, financial performance, business, prospects, assets, liabilities, or value of the net assets of Next Metrology, impacting the value of Next Metrology by greater than Eur 500,000; but excluding any change or effect arising out of general economic conditions or conditions affecting companies generally in the industry in which Next Metrology operates. |
“Mills” |
shall have the meaning indicated in the headings of this Agreement. |
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“Muscarella” |
Angelo Muscarella, Italian national, born in [ ], on [ ], domiciled at [ ], tax registration number [ ]. |
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“Muscarella Share” |
shall have the meaning indicated in Introduction A. |
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“Muscarella SPA” |
shall mean the Agreement for the purchase of the Muscarella Share by the Buyer dated January 29, 2015. |
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“Next Metrology” |
Next Metrology s.r.o., a Czech Republic company duly existing and organized under Czech law, with offices at Štěrboholská 1307/44, 102 00 Prague 10, Czech Republic, Identification No.: 29129273, registered in the commercial register maintained by the Municipal Court in Prague, Section C, Insert 202085, registered share capital equal to CZK 200,000. |
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“Notice of Claim” |
shall have the meaning indicated in Section 8.03(a). |
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“Notice of Objection” |
shall have the meaning indicated in Section 8.03(c)(ii). |
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“Notional Net Working Capital” |
shall mean (i) the sum of all trade accounts receivable (net of specific allowances for any of these accounts deemed uncollectible), (ii) the sum of all inventory items (net of specific reserves for items deemed obsolete or Slow Moving Inventory), (iii) prepaid expenses, and (iv) other current assets (with expected life less than one year), LESS (v) the sum of all accounts payable, expense accruals, accrued payroll (including vacation and statutory holiday accruals), other current liabilities (including deferred tax liabilities), and deposits from customers. |
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“OITA” |
shall have the meaning indicated in Section 2(b). |
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“Parties” |
shall mean the Seller, Next Metrology and the Buyer. |
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“Party” |
shall mean the Seller, Next Metrology and the Buyer, when individually and generically referred to. |
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“Permanent Disability” |
shall mean the person’s total and permanent disability which prevents the person from performing for a continuous period exceeding six months the duties assigned to the person. |
“Permit” |
shall mean any permits, consents, approval, resolution, licenses, certificates, notices, filings, lodgments, agreements, directions, declarations, registrations, notifications, exemptions, variations, renewals, permissions and amendments and other authorizations and approvals including any conditions thereof required or provided under Czech or other applicable law. |
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“Property” |
means office No. 17 of area of 56,59 m² situated in building “K” on plot no. 1350/2, which is registered in the cadastral area of Hostivař, municipality of Prague, in title deed No. 139, used by Next Metrology to carry out its business. |
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“Purchase Price” |
shall have the meaning indicated in Section 3.01(a). |
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“Reference Date” |
shall mean December 31, 2014. |
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“Reference Financial Statements” |
Next Metrology Financial Statements as of December 31, 2014 as attached to the Agreement as Annex 1. |
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“Relevant Anniversary Date“ |
shall have the meaning indicated in Section 3.04(b). |
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“Required Consents” |
shall mean a consent by TESLA KARLÍN,
a.s., a company with its registered seat at Prague 10, V Chotejně 9/1307, Zip Code 10200, Czech Republic, ID No.: 452 73 758,
with the sublease of the Property by Topmes to Next Metrology under the Sublease Agreement.
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“Seller” |
shall have the meaning indicated in the headings of this Agreement. |
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“Service Agreements” |
shall have the meaning indicated in the Coord3 Agreement. |
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“Share” |
shall have the meaning indicated in Introduction A. |
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“Slow Moving Inventory” |
shall mean any and all inventory items that are in excess of 360 days old as of the Completion Date. |
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“Sublease Agreement“ |
shall have the meaning indicated in Section 13. |
“Tax” or “Taxes” |
shall mean all (i) Czech and foreign taxes of any kind, levies or other like assessments, customs, duties, imposts, charges or fees, including, without limitation, income, gross receipts, ad valorem, value added, excise, real or personal property, asset sales, use, license, payroll, transaction, capital, net worth and franchise taxes, withholding, employment, social security, utility, severance, production, unemployment compensation, occupation, premium, windfall profits, transfer and gains taxes, professional, salary or other governmental, local and municipal taxes imposed or payable to any government or subdivision or agency thereof, and in each instance such term shall include any interest, penalties or additions to tax attributable to any such Tax; (ii) any liability for the payment of any amount of a type described in clause (i) arising as a result of being or having been a member of any consolidated, combined, unitary or other group or being or having been included or required to be included in any return related thereto; and (iii) any liability for the payment of any amount of a type described in clause (i) or clause (ii) as a result of any obligation to indemnify or otherwise assume or succeed to the liability of any other person. |
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“Third Party Claim” |
shall mean a claim brought by any third party against Next Metrology. |
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“Topmes” |
Topmes s.r.o., a company established under the laws of the Czech Republic, with offices at Štěrboholská 1307/44, Hostivař, 102 00 Prague 10, Company ID: 00541940, registered in the Company Register at Municipal Court of Prague, Section C, File 210793. |
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“Topmes Share” |
shall have the meaning indicated in Introduction A. |
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“Topmes SPA” |
shall mean the Agreement for the purchase of the Topmes Share by the Buyer dated January 29, 2015. |
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“Transaction” |
shall have the meaning indicated in Section 2(a). |
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“Waste” |
shall mean any waste as defined or regulated by any Environmental Law. |
EXHIBIT 7.01
Buyer’s Representations and
Warranties
| 1. | Good standing – Authority |
(a) The Buyer is a corporation validly
existing, duly incorporated and in good standing under the laws of the State of Michigan, United States of America.
(b) The Buyer has full power and authority
(including full corporate or other entity power and authority) to execute and deliver this Agreement and to perform its obligations
under this Agreement. The Buyer does not need to give any notice to, make any filing with, or obtain any authorization, consent,
or approval of any third party, or need to give any notice to, make any filing with, or obtain any Governmental Authorization from,
any Governmental Authority in order for the it to consummate the transactions contemplated by this Agreement, other than as otherwise
specified in the Agreement.
(c) Neither the execution and the delivery
of this Agreement, nor the consummation of the transactions contemplated by this Agreement shall: (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority,
or court to which Buyer is subject; or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any Contract, license,
instrument, or other arrangement to which Buyer is a party or by which it is bound or to which any of its assets is subject.
(d) All corporate actions taken and
which will be taken in connection with the Agreement have been duly authorized by all required corporate actions and the Buyer
has not taken any action that, in any respect, conflicts with, constitutes a default under or results in any violation of any provision
of its articles of association or by-laws.
(e) The Buyer’s authorized representative
has all the necessary corporate powers to enter into this Agreement.
| 2. | No bankruptcy proceedings |
The Buyer is not insolvent or subject to
any insolvency or pre-insolvency proceeding nor is it a party to or is negotiating any creditors’ arrangement of any kind.
EXHIBIT
7.02
Seller’s representations and warranties
1. Authority
| (a) | Next Metrology has full power and authority (including full corporate or other entity power and
authority) to execute and deliver this Agreement and to perform its obligations under this Agreement. Next Metrology and the Seller
do not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any third party,
or need to give any notice to, make any filing with, or obtain any Governmental Authorization from, any Governmental Authority,
in order for the Parties to consummate the transactions contemplated by this Agreement. |
| (b) | Non-contravention. Neither the execution and the delivery of this Agreement, nor the consummation
of the transactions contemplated by this Agreement, shall: (i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority, or court to which Next Metrology or
the Seller are subject; or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any contract, license, instrument,
or other arrangement to which Next Metrology or the Seller is a party or by which it is bound or to which any of its assets is
subject or result in the imposition of any liability or Encumbrance upon any of its assets or result in any present or future indebtedness
of Next Metrology becoming due and payable prior to its stated maturity; or (iii) result in the right of any managing director
or employee of Next Metrology to any one-off payment, bonus or commission or to terminate his employment other than on normal contractual
terms as a result of the transactions contemplated by this Agreement. |
2. Good
Standing
(a) Good standing - Authority
| (i) | Next Metrology is a limited liability company, validly existing, duly incorporated and in good
standing under the laws of the Czech Republic. |
| (ii) | No resolution has been passed or will be passed prior to Completion to approve the winding up of
Next Metrology. |
| (iii) | Next Metrology has all the necessary powers and authority to own, operate, use, license or lease
its assets and to carry on its business activity as it has been and is currently carried on. |
| (iv) | All corporate actions taken and which will be taken by
Next Metrology in connection with this Agreement have been duly authorized and the Seller and Next Metrology have not taken any
action that, in any respect, conflicts with, constitutes a default under or results in any violation of any provision of law or
of their articles of association, by-laws or any other internal document. |
(b) No insolvency proceedings
| (i) | Neither Next Metrology nor the Seller is subject to any insolvency proceeding of any kind nor do
they satisfy the requirements for filing any insolvency procedure of any kind, including on the basis of threatening insolvency
(in Czech: hrozící úpadek). No liquidator, insolvency trustee, bankruptcy receiver, administrator or
similar officer has been appointed in respect of Next Metrology or the Seller. Next Metrology and/or the Seller have not and, to
the best of the Seller’s knowledge, no third party has taken any action with a view to file for any such insolvency proceeding
or to appoint any such liquidator, insolvency trustee, bankruptcy receiver, administrator or similar officer. |
| (ii) | No arrangement with any of Next Metrology or the Seller’s creditors of any kind has been
entered into or is currently being negotiated. |
| (iii) | Neither Next Metrology nor the Seller has entered into any agreement for the assignment of their
assets (or any part of them) for the benefit of its creditors. |
| (iv) | Neither Next Metrology nor the Seller has filed any petition for the restructuring of its debt
or an insolvency or similar motion against themselves or Next Metrology. Neither Next Metrology nor the Seller is aware that an
insolvency or similar motion would have been filed against any one of them in any jurisdiction by any third person. |
| (v) | No resolution has been passed to dissolve or liquidate Next Metrology. |
| (c) | Licenses, permits, authorizations |
| (i) | Next Metrology has all licences, permits, authorizations and consents from any person, authority
or body which are necessary to carry on its business. To the best of Seller’s knowledge, Next Metrology has at all times
been in compliance with each Governmental Authorization and Permit. No event has occurred or circumstance exists that could (with
or without notice or lapse of time) (I) constitute or result, directly or indirectly, in a violation of, or a failure on the part
of Next Metrology to comply with, any Governmental Authorization and Permit, or (II) result, directly or indirectly, in the revocation,
suspension, cancellation, termination, or modification of any Governmental Authorization and Permit. |
| (ii) | Next Metrology has not received any notice or other communication (whether oral or written) from
any Governmental Authority or any other person regarding (I) any actual, alleged, or potential violation of, or failure to comply
with, any Governmental Authorization and Permit, or (II) any actual, proposed, or potential revocation, suspension, cancellation,
termination, or modification of any Governmental Authorization and Permit. |
| (iii) | To the best of Seller’s knowledge, all other filings
required to have been made with respect to such Governmental Authorizations and Permit have been duly made on a timely basis with
the appropriate Governmental Authorities. |
| (iv) | No violation exists in respect of any such licences, permits, authorizations and consents and no
proceeding is pending or, to the best of the Seller’s knowledge, threatened against Next Metrology to revoke or materially
limit any such licences, permits, authorizations or consents. |
3. Share
Capital of Next Metrology
| (i) | The issued and outstanding registered capital of Next Metrology is that indicated in the headings
of the Agreement. The issued registered capital has been duly authorized, and is fully subscribed and paid. The ownership interests
representing 100% of the registered capital of Next Metrology have been duly issued. |
| (ii) | Mills is the sole registered, legal and beneficial owner of an ownership interest representing
25% of the registered capital of Next Metrology. |
| (iii) | Next Metrology’s ownership interest owned by Mills is free and clear from any Encumbrances. |
| (iv) | No resolution has been passed to approve any increase or decrease of the registered capital of
Next Metrology, no contribution outside the registered capital (in Czech: příplatek) of Next Metrology has been
made, and there are no outstanding options, warrants, agreements, conversion rights, pre-emption rights or other rights to subscribe
for, purchase or otherwise acquire the Share or any further ownership interests of Next Metrology. |
| (v) | Next Metrology has issued no bonds or other securities. |
| (vi) | No advance payment of dividends or any other distribution of any future dividends has been approved
or made. |
| (vii) | No person is a shadow managing director of Next Metrology and no other person than the Seller,
Muscarella and Topmes exercises decisive influence or control over Next Metrology. |
4. Title
to the Target Business
All of Next Metrology’s assets are
free and clear of any Encumbrances and there are no outstanding options, warrants, agreements, pre-emption rights or other rights
to purchase or otherwise acquire Next Metrology, any portion thereof or any of its assets.
5. Financial
Statements
| (a) | A list of all the bank accounts of Next Metrology with the identification of all persons with access
to such accounts (whether having right to dispose of funds or not) are indicated in Annex 5(a). |
| (b) | The Completion Date Net Working Capital is equal to or greater than a negative Eur 30,000 (thirty
thousand). |
| (c) | Upon the Completion Date, Next Metrology’s Debt is not greater than Eur 50,000 (fifty thousand). |
6. Accounts
receivable
The accounts receivable of Next Metrology,
after taking into account any applicable reserve for returns, claims and bad debts shown in Annex 6, are existing, valid and legitimate
and collectable.
7. Real
estate properties
| (i) | Next Metrology carries out and operates its business in the Property only and it does not own,
lease or otherwise use or occupy any other real estate property (and Next Metrology upon Completion will carry out and operate
its business in the Property only and will not own, lease or otherwise use or occupy any other real estate property). |
| (ii) | Next Metrology is entitled to use the Property, with
no restriction whatsoever, on the basis of the lease agreement whose lessor, amount of the rent, date of execution, expiration
date are indicated in Annex 7(ii). Next Metrology has duly and timely fulfilled all obligations arising from such lease agreement.
The lessor is not entitled to terminate or withdraw from the lease agreement referred to above as a consequence of the consummation
of the Transaction. |
8. Fixed
tangible assets (other than real estate properties)
| (i) | Next Metrology has good title to and legal and beneficial ownership of the assets listed in Annex
8(a)(i). |
| (ii) | The assets listed in Annex 8(a)(i) are free and clear of any Encumbrances. |
Next Metrology
is not a party to any capital lease agreement (leasing) except for those listed in Annex 8(b).
Next Metrology
has no operating lease agreements in place for any asset, except for the assets listed in Exhibit 8(c).
| (i) | Annex 8(a)(i) is a complete and accurate list of all assets owned and used (as the case may be)
by Next Metrology. |
| (ii) | To the best of Seller’s knowledge, all assets owned or however used Next Metrology comply
with all laws and regulations. |
9. Intellectual
property
| (i) | Next Metrology has all rights (including the right to exercise economic rights) and has been provided
by all its employees, contractors and other authors with consents allowing interference with moral rights to the maximum extent
permitted by applicable law in connection with all works protected by copyright and copyright neighboring rights (including any
and all literary, artistic, science, musical, graphic, photography, software and copyright database works) as listed and described
in Annex 9.(i) and is the sole legal and beneficial owner of the trademarks, trademark applications, industrial designs, industrial
design applications, manufacturing and trade secrets, inventions, patents, patent applications, technology, know how, and databases,
listed and described in Annex 9.(i) (“Intellectual Property”). Next Metrology owns no intellectual property
other than that listed in Annex 9(i). |
| (ii) | The Intellectual Property is free and clear from any Encumbrances. |
| (iii) | The Intellectual Property is used in good faith. |
| (iv) | None of the items and assets of the Intellectual Property, or any of its part, is licensed to third
parties or is part of a branch of a business as a going concern which is leased to third parties or has been assigned to third
parties or on which a third party is entitled to the usufruct, except for the licences indicated in Annex 9(iv). |
| (v) | All fees, taxes and duties for all the registrations and maintenance of all Intellectual Property
have been duly and timely paid by Next Metrology. |
| (vi) | To the best of the Seller’s knowledge, the Intellectual Property does not infringe any third
party rights. |
| (vii) | There are no proceedings (including opposition proceedings before any authority or challenges)
concerning the Intellectual Property which are pending or, to the best of the Seller’s knowledge, threatened, and Next Metrology
has not entered into nor is it negotiating any settlement agreements regarding the Intellectual Property. Next Metrology is not
obligated to pay any royalty, license fee, charge or other amount with regard to any Intellectual Property. |
| (viii) | The Seller is not aware of any actual or potential infringements
of the Intellectual Property by any third party. |
| (ix) | No director, officer, shareholder, employee, consultant, contractor, agent or other representative
of Next Metrology owns or claims any rights in (nor has any of them made application for) any Intellectual Property. |
| (x) | Each software used by Next Metrology has been and is duly licensed to it and all relevant considerations
for such licences have been duly and timely paid by Next Metrology. |
| (xi) | Next Metrology has included a copyright notice on any product that embodies a copyright owned by
Next Metrology. |
| (xii) | To the best of the Seller’s knowledge, Next Metrology’s software do not contain viruses,
worms, trojan horses, time bombs, backdoor access or any other adware, malware or spyware that could be used to interfere with
the functionality of such software. |
| (xiii) | No Person has (or had) a copy of, or has (or had) the right to access now or at some time in the
future, any source code for material Software; and there are no agreements under which Next Metrology has placed or is required
to place into escrow any such source code. |
| (xiv) | No Intellectual Property was developed by Next Metrology using (in whole or in part) government
funding or facilities nor was it obtained from any Governmental Authority. |
| (xv) | No Person other than the Seller has ownership of or rights to any Intellectual Property, excluding
such Intellectual Property that is the subject of a licence. |
| (xvi) | Next Metrology has taken all reasonable actions to protect its trade secrets included in the Intellectual
Property from unauthorized use or disclosure, and to maintain such trade secrets in confidence. |
| (xvii) | The source code for all material software is in a form that a programmer of ordinary skill in the
applicable programming language(s) is able to print, display, and read. |
| (xviii) | None of the software owned by, or developed by or for the benefit of, Next Metrology contains or
requires use of any “open source” code, shareware or other software that does or may require disclosure or licensing
of any such software or any other Intellectual Property owned by Next Metrology. |
| (xix) | All Intellectual Property (or any information and documents containing or materially relating to
the Intellectual Property) is in a form that a person skilled in the relevant art is able to use such Intellectual Property in
any manner permitted by applicable law and print, display and read such information or documents. |
| (xx) | Next Metrology has all rights to the domain names listed and described in Annex 9(i) (the “Domain
Names”). The Domain Names were registered and are used in good faith, are free from any Encumbrances and all fees, taxes,
duties for all the registrations and maintenance of the Domain Names have been duly and timely paid. The Domain Names do not infringe
on any third party rights (including any third party trademarks or trade names) and Next Metrology is not aware of any actual or
potential infringements arising in connection with the Domain Names. There are no proceedings (including arbitration) concerning
the domain names before any authority which are pending, or to the best of the Seller´s knowledge, threatened, and Next Metrology
has not entered into nor is it negotiating any settlement agreements regarding the domain names. Next Metrology does not allow
any third party access to any of the domain names. |
10. Debt
As of the date this representation
is made, Next Metrology’s Debt and accounts payable are as indicated in Annex 10, plus accounts payable incurred after the
date hereof in the ordinary course of business consistent with the past practice.
11. Guarantees
and securities
| (i) | No guarantees or patronage letters or other securities have been granted or created by third parties
(including the Seller) for the benefit of Next Metrology. |
| (ii) | Next Metrology has issued or granted no guarantees or patronage letters and/or created securities
in favor of any third party including the Seller. |
| (iii) | There are no off balance-sheet items in the books and records of Next Metrology. |
12. Books
and records
| (i) | All books and records of Next Metrology (including all tax books) have been fully, properly and
accurately kept and completed in accordance with all applicable laws and the Agreed Accounting Principles and fairly reflect, in
reasonable detail, the transactions, the financial position and the assets and liabilities of Next Metrology. All of such books
and records are under the direct control of Next Metrology and have been kept for the duration prescribed by the applicable civil
and tax laws and regulations. |
| (ii) | The records of the resolutions of managing directors and the shareholders of Next Metrology are
accurate and accurately reflect all actions taken and all resolutions passed by managing directors and the shareholders of Next
Metrology. |
13. Litigation
There are no claims, actions,
suits, proceedings or investigations pending or threatened in writing or, to the best knowledge of the Seller, threatened other
than in writing, before any court or governmental or regulatory or administrative authority, domestic or foreign, or before any
arbitrator of any nature to which Next Metrology is a party other than those indicate in Annex 13(i). To the best of the Seller’s
knowledge, no facts or circumstances exist which may give rise to any such claims, actions, suits, proceedings or investigations.
14. Employment
matters - Agents
| (i) | Annex 14(i) lists the employees of Next Metrology with their name and employment position. There
are no accrued deferred salary / severance payment and other statutory monetary accrued entitlements due to such employees. The
information contained in Annex 14(i) is true, accurate and complete as of the date hereof. |
| (ii) | Next Metrology has no employees other than the employees listed in Annex 14(i). No person other
than the employees listed in Annex 14(i) may legitimately claim that he/she has a subordinate employment relationship with Next
Metrology. |
| (iii) | No litigation, whether pending or threatened in writing or, to the best knowledge of the Seller,
threatened but not in writing, exists between Next Metrology and any employee who is presently on its payroll as well as any former
employee. |
| (iv) | Next Metrology is not in breach of any obligation to pay to any of its employees any wages, salaries,
commissions, bonuses, benefits or other direct or indirect compensation for any services performed to the date hereof or amount
required to be reimbursed to such employees, nor is it in breach of any other obligation arising from the employment agreements
with their employees. |
| (v) | To the best of the Seller’s knowledge, Next Metrology has complied with all employment, health
insurance and social security applicable laws and regulations and collective bargaining agreements (including those executed with
local/plant unions, if any) governing employment, as well as with all employment practices, terms and conditions of employment,
wages, hours and benefits, including any provision relating to health and safety. |
| (vi) | Up to the date hereof no employee of Next Metrology has actually performed or actually performs
tasks which are not substantially corresponding to those prescribed by the relevant provisions of his/her individual employment
agreement. |
| (vii) | There is no strike, slowdown or stoppage actually pending or threatened in writing or, to the best
knowledge of the Seller, threatened but not in writing, against or involving Next Metrology. |
| (viii) | There is no employee bonus, stock option, incentive, deferred compensation, retiree medical or
life insurance, supplemental retirement, pension or severance plans (i) to which Next Metrology is a party or (ii) which are maintained,
contributed to or sponsored by Next Metrology for the benefit of the employees, other than those provided for by the law. |
| (ix) | Up to the date hereof the total accrued deferred salary / severance indemnity of each employee
of Next Metrology has been calculated and accrued according to the applicable laws and/or other applicable contractual provisions. |
| (x) | Next Metrology has: (1) paid to the competent authorities all compulsory social welfare, social
security and health insurance funds and provided to such authorities any requested document concerning the same; (2) fully paid
all contributions (including interest, penalties and taxes, if applicable) concerning wages paid or due; and (3) withheld and paid
to the competent authorities the total contributions and taxes to be withheld from the paid wages. |
| (xi) | No employee of Next Metrology is entitled to receive any payment of any nature whatsoever as a
consequence of the execution of this Agreement and/or of the Completion as contemplated by this Agreement. |
| (xiv) | Next Metrology has not made any loan to any of its employees. |
| (xv) | Next Metrology has no workers on a project basis. |
| (xvi) | Next Metrology has no fixed term employees. |
| (xvii) | Next Metrology has no self-employed workers. |
| (xviii) | Next Metrology has duly and timely fulfilled all of its tax, social security and health insurance
obligations in relation to the current and past managing directors. |
| (xix) | Next Metrology has no commercial agents. |
| (xx) | Next Metrology has no collective bargaining agreements. |
15. Compliance
with the law – Regulatory compliance
| (i) | To the best of the Seller’s knowledge, the operations of Next Metrology have been conducted,
in all material respects, in compliance with all permits, applicable laws, regulations, orders and other requirements of all courts
and other governmental or regulatory authorities having jurisdiction over Next Metrology, including any such laws, regulations,
orders or other requirements relating to product safety, accident prevention, export control, money laundering, anti-corruption,
international sales and business ethics and health and safety on the work place. |
| (ii) | Next Metrology has not received a notification of any violation of any such law, regulation, order
or requirement, or, to the best of the Seller’s knowledge, are in default with respect to any order, writ, judgment, award,
injunction or decree of any court or governmental or regulatory authority or arbitrator applicable to Next Metrology, or any of
its assets, properties or operations. |
| (iii) | To the best of the Seller’s knowledge, nor Next Metrology, none of its directors, officers
or employees has committed any act or omission which may have caused any damage to any public authority or entity. |
16. Contracts
| (i) | Annex 16(i) lists all contracts to which Next Metrology is a party. |
| (ii) | In relation to the customers’ or suppliers’ contracts of which Next Metrology is a
party, none of the customers or suppliers (as the case may be) is entitled to terminate or withdraw from the relevant contracts
referred to in this paragraph (i) as a consequence of the sale of the Shares to the Buyer. |
| (iii) | Next Metrology has duly and timely fulfilled in all material respects all of the obligations arising
from all of the contracts referred to in paragraph 17(i) above. |
| (iv) | With respect to each contract entered into by Next Metrology: (A) the contract is legal, valid,
binding, enforceable, and in full force and effect (or, as the case may be in relation to past agreement expired or terminated,
were legal, valid, binding and enforceable) against Next Metrology and, to the best of the Seller’s knowledge, the other
parties thereto; (B) the contract shall continue to be legal, valid, binding, enforceable, and in full force and effect on identical
terms following the consummation of the transactions contemplated by this Agreement; (C) Next Metrology and, to the best of the
Seller’s knowledge, no other party is in breach or default, and, to the best of the Seller’s knowledge, no event has
occurred that with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration,
under such contract; (D) no party has repudiated any provision of such contract, served a notice of termination of such contract
or indicated an intent to terminate such contract; (E) there is no renegotiation of, attempt to renegotiate, or outstanding rights
to renegotiate any such contracts with any person, and no person has made written demand for such renegotiation; (F) no party is
entitled to withdraw from any contract without cause or as a consequence of the consummation of the Transaction; (G) to the best
of the Seller’s knowledge all contracts to which Next Metrology is a party and which should have been awarded through a public
tender process have been awarded in compliance with applicable laws and regulations. |
| (v) | Since January 1, 2013, no supplier of Next Metrology has indicated that it shall stop, or materially
decrease the rate of, supplying materials, products or services to Next Metrology or initiated or threatened litigation as a result
of a dispute nor has Next Metrology refused to pay any such supplier due to quality, timeliness or other issues. |
| (vi) | Since January 1, 2013, no customer has indicated that it stop, or materially decrease the rate
of, purchasing products or services from Next Metrology, refused to pay due to quality, timeliness or other issues or initiated
or threatened litigation as a result of a dispute. None of Next Metrology’s agreements with its customers contain provisions
which permit the customer to terminate their arrangement with Next Metrology as a result of the consummation of the transactions
contemplated hereby. |
17. Product
Liability and product warranty
| (i) | No product liability claims are pending against Next Metrology. |
| (ii) | Next Metrology has not received any order from any governmental authority to recall any of the
products manufactured and delivered. No event has occurred or circumstance exists that (with or without notice or lapse of time)
could result in any such liability or recall. Annex 17(ii) sets forth all product liability claims of Next Metrology settled during
the past two (2) years. |
| (iii) | Attached as Annex 17(iii) is a copy of the form of each product warranty issued by Next Metrology
that is still in effect. Each product manufactured, repaired, sold, leased, or delivered by Next Metrology has been in conformity
with all applicable contractual commitments and all express and implied warranties, and Next Metrology has no liability (and, to
the best of Seller’s knowledge, there is no basis for any present or future action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand against it giving rise to any liability) for replacement or repair thereof or other damages
in connection therewith. No product manufactured, repaired, sold, leased, or delivered by Next Metrology is subject to any guaranty,
warranty, or other indemnity beyond the applicable standard terms and conditions of sale or lease. |
18. Taxes
| (i) | Next Metrology complied with all obligations in respect of Tax. |
| (ii) | All tax returns, reports or other filings that are required to be filed by Next Metrology on or
before the date this representation is being made with any tax, social security or health insurance authorities have been duly
and timely filed. Such tax returns, reports or other filings fully reflect the tax, social security and health insurance liabilities
of Next Metrology, at the time of the filing, for the relevant tax period. Next Metrology currently is not the beneficiary of any
extension of time within which to file any Tax Return. No claim has ever been made by an authority in a jurisdiction where Next
Metrology does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. There are no liens for Taxes
(other than Taxes not yet due and payable) upon the Target Business. |
| (iii) | All Taxes of Next Metrology: (i) payable on or before the date this representation is made; or
(ii) that are attributable to any relevant period up to the date hereof, but are not yet due and payable as of the date this representation
is made, in each case have been timely and duly paid or appropriate provisions have been made therefore in Next Metrology’s
books and records. |
| (iv) | No claim for assessment or collection of Taxes has been asserted against Next Metrology and there
are no such claims threatened in writing or, to the best of the Seller’s knowledge, threatened other than in writing, against
Next Metrology. Neither Next Metrology nor the other Seller nor any director or officer (or employee responsible for Tax matters)
of Next Metrology expects any Governmental Authority to assess any additional Taxes for any period for which Tax Returns have been
filed. |
| (v) | Next Metrology has withheld from its employees, independent contractors, creditors, shareholders
and third parties and timely paid to the appropriate Governmental Authority proper and accurate amounts in all respects required
to have been withheld or paid over for all periods ending on or before the Completion Date in compliance with all Tax withholding
and remitting provisions of applicable laws and have complied in all respects with all Tax information reporting provisions of
all applicable laws. |
| (vi) | Next Metrology has not received any written or oral notice that it is in violation (or with notice
will be in violation) of any applicable law relating to the payment or withholding of Taxes. |
| (vii) | Next Metrology has not received any notice of a proposed Tax, social security, or health insurance
inspection or any other administrative proceeding or court proceeding nor are any of the foregoing pending or threatened in writing,
or to the best of the Seller’s knowledge, threatened but not in writing with regard to any Taxes or Tax Returns. |
| (viii) | Next Metrology is a party to no dispute with any tax authority in relation to any Tax. |
| (ix) | Annex 18 sets forth Next Metrology’s open tax audit years. |
19. Public
grants
Next Metrology has never received
nor benefitted from any public grants.
20. Privacy
and personal data protection
| (i) | To the best of the Seller’s knowledge, Next Metrology has complied with all laws and regulations
governing the protection of privacy and personal data. |
| (ii) | To the best of the Seller’s knowledge, the consummation of the Transaction will not violate
any privacy policy, information security policy, terms of use, customer agreements or any applicable laws or regulations relating
to the use, storage, treatment, dissemination or transfer of any personal data or information or confidential information of a
third party. |
21. Loans
to or by the Seller
There is no outstanding indebtedness
or other liability (actual or contingent) owed by Next Metrology to the Seller, his Affiliates or to any director, officer, or
employee of Next Metrology or any person related to a director, officer, or employee as aforesaid, nor is there any indebtedness
owed to Next Metrology by any such person.
22. Equity
Interests; Branches
| (i) | No interest in any legal entity is owned (whether directly or indirectly) by Next Metrology nor
is Next Metrology a member of any partnership, joint venture, consortium or other incorporated or unincorporated association. |
| (ii) | Next Metrology has no branch, center of main interests, place of business or establishment outside
of the Czech Republic. |
23. Information
Technology
| (i) | Next Metrology has an information technology system (i.e. personal computers, network, servers
and connected devices and software, hereinafter “IT System”) fully functioning and suitable to operate its business
in an efficient manner. |
| (ii) | The IT System is suitable and works properly for the purpose of supporting the management of Next
Metrology’s business and allowing all its employees to carry out their intended tasks and duties, including, but not limited
to, keeping the accounts and storing all relevant information. |
| (iv) | Next Metrology has acquired full title to and ownership of, or a legitimate right to use, any and
all third party software and/or intellectual property used in the IT System. |
| (v) | To the best knowledge of the Seller, the use of the software and intellectual property relating
to the IT Systems and use of the IT System itself does not infringe any third party right or statutory provision. |
| (vii) | Next Metrology has devised and implemented with the utmost care specific procedures aimed at protecting
the IT System from viruses and any other harm and preserving the security of its IT System, data and intellectual property. |
| (viii) | Next Metrology has taken all reasonable steps to safeguard the IT System utilized in the operation
of its business, including the implementation of procedures to ensure that such information technology systems are free from any
disabling codes or instructions, timer, copy protection device, clock, counter or other limiting design or routing and any "back
door," "time bomb," "Trojan horse," "worm," "drop dead device," "virus,"
or other software routines or hardware components that in each case permit unauthorized access or the unauthorized disablement
or unauthorized erasure of data or other software by a third party, and to date there have been no successful unauthorized intrusions
or breaches of the security of the information technology systems. |
| (ix) | The consummation of the Transaction (or any part thereof) will not disrupt or discontinue the operation
and functionality of the IT System. |
24. Subsequent
Events
Since the Reference Date, the
business of Next Metrology has been conducted in accordance with Section 5.01(a) of the Agreement and of all applicable laws. Since
the Reference Date, Next Metrology has taken none of the following actions:
| (xxvii) | sale or disposal of any assets; |
| (xxviii) | granting of any rights (including in rem securities) in respect of any of Next Metrology’s
assets or the charging of any of said assets with any Encumbrances; |
| (xxix) | decisions to incur any indebtedness or to borrow any money (except within the limits of the facilities
currently available to Next Metrology as disclosed in writing to the Buyer), or to enter into any factoring or invoice discount
agreement; |
| (xxx) | extension of the terms of payment of any payables or other liabilities or of any receivables, or
discount any receivables; |
| (xxxi) | transactions (including share capital increase or decrease) which affect the share capital of Next
Metrology; |
| (xxxii) | the granting of any rights (including in rem security rights) on any of the shares of Next Metrology
or any further share to be issued by Next Metrology and issuance of any bond or other securities; |
| (xxxiii) | decisions to undertake any capital commitment (purchase or financial / capital lease of fixed or
other assets); |
| (xxxiv) | decisions to enter into any partnership, consortium, association, joint venture agreements; |
| (xxxv) | change of the remuneration of any of the employees, other than increases required by the law or
by the applicable collective bargaining agreements; |
| (xxxvi) | recruitment of any new registered managing director or key manager; |
| (xxxvii) | any redundancy plan; |
| (xxxviii) | acquisition or disposal of equity interests in other entities or of businesses as going concerns
or any branches thereof; |
| (xxxix) | agreements with customers or suppliers (including purchase orders) (aa) which have each a value
greater than EUR 30,000 as to customers contracts and EUR 30,000 as to suppliers, or (bb) whereby the counterpart may withdraw
or terminate without cause, or (cc) whereby the counterpart may withdraw or terminate for change of control, or (dd) which provide
for restrictions to the freedom to operate in the market, or (ee) whereby Next Metrology must give unusual warranties or guarantees,
or (ff) which contemplate unusual payment terms if compared with standard market practice; |
| (xl) | agreements with related parties (including shareholders, directors or employees of Next Metrology
or relatives of the shareholders or of the directors or employees); |
| (xli) | change in accounting methods, policies or procedures or presentations of accounts; declaration
and distribution of dividends or capital funds; |
| (xlii) | settlements of disputes; |
| (xliii) | guarantees to secure the obligations of a third party; |
| (xliv) | liquidation; dissolution; mergers, de-mergers and restructurings; |
| (xlvi) | permitting the lapse or forfeiture of intellectual property rights or other intangible assets; |
| (xlvii) | fail to file any tax returns or any other report to any authority as required under the law or
any contract by its applicable due date or fail to pay any taxes, as and when they first became due and payable; |
| (xlviii) | negotiation for the settlement or compromise, or settlements or compromise, of any tax liability; |
| (xlix) | payment of dividends or distributions; |
| (l) | termination of any material agreement; |
| (li) | enter into or amend any agreement, except for acceptance or placement of purchase orders in the
ordinary course of business. |
25. Material
Adverse Change
No Material Adverse Change in
Next Metrology has occurred between the Reference Date and the date this representation is made.
26. No
Broker
The Seller has entered into negotiations
with the Buyer in relation to the Transaction and have entered into this Agreement without using the services of any broker, other
than Delta Metrology which will be paid a deal consummation fee directly by the Buyer.
27. Foreign
Corrupt Practices Act and International Trade Sanctions
Neither Next Metrology, nor the
Seller acting on its behalf, nor any of their respective directors, officers, agents, employees or any other persons acting on
behalf of Next Metrology has, in connection with the operation of Next Metrology, (i) used any corporate or other funds for unlawful
contributions, payments, gifts or entertainment, or made any unlawful expenditures relating to political activity, to government
officials, candidates or members of political parties or organizations, or established or maintained any unlawful or unrecorded
funds in violation of Section 104 of the Foreign Corrupt Practices Act of 1977, as amended, or any other similar applicable law,
(ii) paid, accepted or received any unlawful contributions, payments, expenditures or gifts, or (iii) violated or operated in noncompliance
with any export restrictions, anti-boycott regulations, embargo regulations or other similar applicable law, or (iv) violated or
operated in noncompliance with No. 253/2008 Coll., on certain measures against legalization of proceeds of crime and terrorist
financing, as amended.
28. Affiliate
Transactions
| (a) | Except as set forth in Annex 28, none of the Seller, his Affiliates, and his relatives, and to
the best of the Seller’s knowledge, Next Metrology, its directors, officers, employees or shareholders, are a party to, or
the beneficiary of, any contract or material transaction relating to Next Metrology, including any contract providing for any loans,
advances, the employment of, furnishing of services by, rental of assets from or to, or otherwise requiring payments to or from,
any such persons. |
| (b) | All the transactions and contracts set forth in Annex 28 were performed under the terms and conditions
usual at the time and place and in accordance with the legal rules and regulations (including corporate, accounting and Tax regulations).
All the costs and expenses expended by Next Metrology within the transactions set forth in Annex 28 are Tax deductible, save for
those expressly excluded from the Tax-deductible costs in the Tax returns filed prior to the date of this Agreement (this does
not apply to the costs or expenses considered as not Tax deductible in future as a result of changes in the Tax regulations). |
29. No
Other Business
Except as set forth on Annex
29, Next Metrology has never conducted any business or other operations other than the current business of developing software
and applications used in connection with CMMs (the “Current Business”) and Next Metrology has no liabilities
or obligations, known, unknown, contingent or otherwise, arising from previously disposed of or discontinued operations, or that
are not related to or did not arise from the operation of the Current Business.
Exhibit 10.3
|
DATE |
January 29, 2015 |
|
|
|
|
|
|
Angelo Muscarella |
(1) |
|
|
|
|
|
|
and |
|
|
|
|
|
|
|
Perceptron, Inc. |
(2) |
|
|
Stock Purchase Agreement
Next Metrology s.r.o.
|
|
TABLE OF CONTENTS
SECTIONS |
|
|
|
|
|
Section 1 |
Introduction and Exhibits – Interpretation
– Certain definitions |
3 |
|
|
|
Section 2 |
Sale and purchase of the Share |
4 |
|
|
|
Section 3 |
Purchase Price |
5 |
|
|
|
Section 4 |
Completion – Conditions to Completion |
5 |
|
|
|
Section 5 |
Pre-Completion Date Covenants |
8 |
|
|
|
Section 6 |
Due Diligence |
11 |
|
|
|
Section 7 |
Representations and warranties |
11 |
|
|
|
Section 8 |
Breach of representations and warranties |
12 |
|
|
|
Section 9 |
Further covenants and specific obligations of the Seller |
15 |
|
|
|
Section 10 |
Restrictive Covenants |
16 |
|
|
|
Section 11 |
Indemnity Holdback Account |
17 |
|
|
|
Section 12 |
[Intentionally left blank] |
17 |
|
|
|
Section 13 |
[Intentionally left blank] |
17 |
|
|
|
Section 14 |
Termination |
17 |
|
|
|
Section 15 |
Miscellaneous |
18 |
|
|
|
Section 16 |
Governing Law - Arbitration |
21 |
LIST OF THE EXHIBITS
Exhibit 1.03: |
Certain definitions |
Appendix A: |
Agreed Accounting Principles |
Exhibit 4.02(a)(i)(bb): |
Director’s waiver form |
Exhibit 4.02(a)(i)(hh) |
Seller Release |
Exhibit 4.02(a)(i)(ii): |
terms and conditions of the employment
agreements with the key people |
Exhibit 4.02(a)(i)(ll): |
Waiver of the Right of First Refusal |
Exhibit 7.01: |
Buyer’s representations and warranties |
Exhibit 7.02: |
Seller’s representations and
warranties |
Exhibit 7.02(a): |
Disclosure Letter |
agreement
This agreement (the “Agreement”) is entered
into on January 29, 2015
by and amongst
| (1) | Angelo Muscarella, Italian
national, born in [ ], on [ ], domiciled at [ ], tax registration number [ ] (“Muscarella”
or the “Seller”), |
and
| (2) | Perceptron, Inc., a company
established under the laws of the State of Michigan, with offices at 47827 Halyard Drive,
Plymouth, MI 48170, State of Michigan, United States of America, Id No. 272233, for the
purposes of this agreement represented by Margaret Mary Kaczmarek Nelson, in her capacity
as Vice President (“Buyer”), |
(the Seller and the Buyer when jointly
referred to “Parties” and each of them when generically and individually referred to “Party”)
INTRODUCTION
| A. | Seller owns 25% share in Next
Metrology. Next Metrology's registered capital as of the date hereof is CZK 200,000 (in
words: two hundred thousand Czech crowns) and is divided into the following three ownership
interests representing 100% of the participation and shareholding rights in Next Metrology: |
| (i) | Muscarella: ownership interest
of total par value of CZK 50,000, representing 25% of Next Metrology’s registered
capital (the “Share”); |
| (ii) | Mills: ownership interest
of total par value of CZK 50,000, representing 25% of Next Metrology’s registered
capital (the “Mills Share”); |
| (iii) | Topmes: ownership interest
of total par value of CZK 100,000, representing 50% of Next Metrology’s registered
capital (the "Topmes Share"). |
| B. | The Buyer is a non-contact
vision and metrology company with a long established experience in laser-based technology
and applications. |
| C. | The Buyer is interested in
acquiring the Share from the Seller, upon the terms and conditions set forth in this
Agreement. |
| D. | The Seller declared that he
is interested and willing to transfer and to cause the transfer of the Share to the Buyer,
upon the terms and conditions set forth in this Agreement. |
| E. | The Buyer is interested in
acquiring only 100% participation in Next Metrology, i.e., acquiring the Share together
with the Topmes Share and the Mills Share. |
Now therefore,
the Parties agree as follows:
SECTION 1
Introduction and Exhibits - Interpretation
– Certain definitions
1.01 Introduction, Exhibits, Appendices
and Annexes
The Introduction, the Exhibits, the Appendices
and Annexes form an integral and essential part of this Agreement, as amended from time to time as provided in Section 15.03(b).
1.02 Interpretation
| (a) | In this Agreement,
unless the context otherwise requires: |
(i) reference
to “this Agreement” shall include its Introduction, all of its Exhibits, Appendices and Annexes;
(ii) the
term “person” includes individuals, firms, companies, corporations, unincorporated associations as well as any association
or partnership or joint venture (whether or not having a separate full legal capacity).
| (b) | Any reference to a statute, statutory
provision or subordinate legislation shall be construed as referring to that statute,
statutory provision or subordinate legislation as amended, modified, consolidated, re-enacted
or replaced and in force from time to time, whether before or after the date of this
Agreement and shall also be construed as referring to any previous statute, statutory
provision or subordinate legislation amended, modified, consolidated, re-enacted or replaced
by such statute, statutory provision or subordinate legislation. |
| (c) | References to any Czech statutory provision
or Czech legal term for any action, remedy, method of judicial proceeding, document,
legal status, court, official or any other legal concept or thing shall, in respect of
any body corporate incorporated in any jurisdiction other than the Czech Republic, be
deemed to refer to and include any equivalent or analogous action, remedy, method of
judicial proceeding, document, legal status, court, official or other legal concept or
thing or what most nearly approximates in that jurisdiction to the Czech statutory provision
or Czech legal term. |
| (d) | The schedules to this Agreement shall
for all purposes form part of this Agreement. |
| (e) | Any phrase introduced by the terms
"including", "include", "in particular" or any similar
expression shall be construed as illustrative and shall not limit the sense of the words
preceding those terms. |
| (f) | Notwithstanding that this Agreement
is set forth in the English language only, where in this Agreement a Czech term is given
in italics and/or in brackets after an English term or vice versa, the relevant provision
relates to circumstances governed by the respective Czech law and if there is any inconsistency
between the Czech term and the English term, the meaning of the respective Czech term
shall prevail. |
| (g) | As this Agreement is the result of
negotiations, the parties agree that none of the clauses or terms hereof can be attributed
to any one party as having first used it in the negotiation of the Agreement. |
1.03 Certain definitions
In addition to terms elsewhere defined
in this Agreement and unless otherwise provided herein, the terms and expressions listed in Exhibit 1.03 shall have the meanings
indicated therein and grammatical variations of such terms shall have corresponding meanings.
SECTION
2
Sale and purchase of the Share
| (a) | Upon the terms and subject to the
conditions set forth in this Agreement, the Seller agrees to sell the Share to the Buyer,
and the Buyer agrees to buy the Share, on the Completion Date. |
| (b) | On the Completion Date, the Seller
and the Buyer shall enter into and execute an Ownership Interest Purchase Agreement (the
“OITA”) by which the Seller shall transfer to the Buyer the Share.
The Parties agree that the OITA shall be subject to this Agreement and therefore, they
shall ensure that any claim however relating to the sale of the Share is raised under
this Agreement. |
| (c) | Upon fulfillment of all other formalities
as required by Section 4.02 and fulfillment (or waiver) of all the conditions provided
for in Section 4.03, the Buyer shall acquire full title to and ownership of the Share,
free and clear of any Encumbrance, together with all rights attached thereto. The Parties
agree that the Buyer shall benefit from all the economic effects of the sale of the Share
as contemplated by this Agreement as from the Completion Date. |
| (d) | The Parties further acknowledge that
the Buyer shall be entitled to appoint a third party legal entity directly or indirectly
controlled by, controlling or under common control with the Buyer which will acquire
the Share. Should the Buyer wish to appoint and, pursuant to Section 15.04, assign its
rights and obligations under this Agreement to, such third party legal entity, it may
do so up to the Completion Date, and the Seller undertakes to provide consent with such
assignment, while such consent may not be unreasonably withheld or delayed. In any event,
the Buyer will remain jointly liable together with such third party for the performance
of the obligations arising from this Agreement. |
SECTION 3
Purchase Price
3.01 Purchase Price
| (a) | The Parties agree that the purchase
price in consideration of the transfer to the Buyer of full title to and ownership of
the Share, free and clear of any Encumbrances, shall be paid by the Buyer to the Seller
and shall be equal to Eur 1,000,000 (one million) (“Purchase Price”). |
3.02 Payment of the Purchase Price
| (a) | The payments of all portions of the
Purchase Price to be paid in cash shall be made by the Buyer to the Seller by bank wire
transfers to Seller’s bank account the details of which shall be indicated by the
Seller in writing at least 7 (seven) Business Days prior to each date on which payments
fall due or to the Indemnity Holdback Account, as indicated in the following clauses
of this Section 3.02. |
| (b) | The Purchase Price shall be paid
to the Seller in the following installments: |
| (i) | as to Eur 650,000 (six hundred
fifty thousand) in cash, to the Seller’s bank account as indicated in paragraph
(a) above upon the execution of the OITA; |
| (ii) | as to Eur 100,000 (one hundred
thousand), to be credited in the Buyer’s financial records as an Indemnity Holdback
Account and paid to the Seller as set forth in Section 11; |
| (iii) | as to Eur 250,000 (two hundred
fifty thousand), such Purchase Price installment shall only be paid by the Buyer to the
Seller if the completion of transaction under the Coord3 Agreement occurs and such Purchase
Price installment will be paid by the Buyer to the Seller's bank account as indicated
in paragraph (a) above upon completion of transaction under the Coord3 Agreement. If
no completion occurs by December 31, 2015, the amount of the Purchase Price set forth
in Section 3.01(a) shall be reduced by Eur 250,000. |
| (c) | No interest shall accrue on any of
the amounts to be paid by either Party pursuant to paragraph (b), above, if timely paid. |
| (d) | For the avoidance of any doubt, the
Parties agree that, by paying the amount indicated in paragraph (b)(i) above to the Seller,
the Buyer shall have discharged its obligation to pay the relevant part of the Purchase
Price in full. |
SECTION 4
Completion – Conditions to
Completion
4.01 Completion Date
| (a) | Completion shall occur on January
29, 2015 or any other date as agreed between the Parties, subject to the conditions to
Completion indicated in Section 4.03 being satisfied or waived by the interested Parties
in writing on or before the Completion Date. |
| (b) | The Completion session and the execution
of the OITA shall take place at the office of Squire Patton Boggs, v.o.s., advokátní
kancelář, ID No. 256 38 882, Václavské náměstí
57/813, 110 00 Prague 1, Czech Republic or any other place as agreed between the Parties. |
4.02 Completion
| (a) | The Parties, each to the extent within
its control, shall consummate or procure the consummation of all of the following actions
and transactions, on or before the Completion Date, as follows: |
| (i) | the Seller shall cause the following
to occur or have occurred: |
| (aa) | delivery to the Buyer of the
following documents relating to the reorganization of matters between Next Metrology
and Topmes: |
| (i) | a copy of a fully executed Confirmation
Agreement entered into between Next Metrology and Topmes in the form agreed by the Parties
before or around the signing of this Agreement; |
| (ii) | a copy of a fully executed Equipment
Purchase Agreement entered into between Next Metrology and Topmes in the form agreed
by the Parties before or around the signing of this Agreement; |
| (iii) | a copy of a fully executed License
Agreement entered into between Next Metrology and Mills in the form agreed by the Parties
before or around the signing of this Agreement; |
| (iv) | a copy of a fully executed License
Agreement entered into between Next Metrology and Coord3 India in the form agreed by
the Parties before or around the signing of this Agreement; |
| (v) | a copy of a fully executed Agreement
on Additional Capital Contribution entered into between Next Metrology and Topmes in
the form agreed by the Parties before or around the signing of this Agreement; |
| (vi) | a copy of a fully executed Set-off
Agreement entered into between Next Metrology and Topmes in the form agreed by the Parties
before or around the signing of this Agreement; |
| (vii) | consent of executives of Next
Metrology with the provision of contribution outside of the registered capital of Next
Metrology pursuant to the Agreement on Additional Capital Contribution contemplated in
Section 4.02(a)(i)(aa)(vii) in the form agreed by the Parties before or around the signing
of this Agreement; |
| (viii) | Consent from the following
employees of Topmes regarding the TouchDMIS Software in the form agreed by the Parties
before or around the signing of this Agreement: |
| (ix) | Confirmation and Consent from
the following employees of Topmes regarding the TANGO Software in the form agreed by
the Parties before or around the signing of this Agreement: |
| (bb) | statements (in the agreed form
attached hereto as Exhibit 4.02(a)(i)(bb)) whereby the Seller and Mr. Štěpán
Hřivna declare to have no and waive any and all rights or claims vis-à-vis
Next Metrology in relation to their role and duties as managing director; |
| (cc) | delivery to the Buyer of a copy
of the statement indicated in sub-paragraph (bb) above; |
| (dd) | delivery to the Buyer of a
written statement whereby the Seller warrants to the Buyer that, as from the date hereof
Next Metrology’s business has been conducted in accordance with the provisions
of Section 5.01; |
| (ee) | delivery to the Buyer of a
written statement whereby the Seller warrants that the representations and warranties
given by the Seller and referred to in Section 6(b) and Section 7.02 are accurate, true
and correct as at the Completion Date and as if given at the Completion Date; |
| (ff) | the execution of the Sublease
Agreement and delivery to the Buyer of a copy of such agreement; |
| (gg) | delivery to the Buyer of a
certified copy of a power of attorney conferring the authority of each person entering
into an agreement or document on behalf of the Seller, if applicable; |
| (hh) | delivery to the Buyer of a
written statement with the release of all claims from the Seller in the form attached
as Exhibit 4.02(a)(i)(hh); |
| (ii) | delivery to the Buyer of copies
of the employment agreements with the key people listed in Exhibit 4.02(a)(i)(ii) and
which shall include the terms and conditions provided for in Exhibit 4.02(a)(i)(ii); |
| (jj) | delivery to the Buyer of an
extract from the Commercial Register of Next Metrology maintained by the Municipal Court
in Prague dated as of a date as near as practicable to the Completion Date; |
| (kk) | delivery to the Buyer of a
resolution of Next Metrology’s General Meeting: |
| (i) | approving all documents under
Sections 4.02(a)(i)(aa)(i) through 4.02(a)(i)(aa)(vi) and under Section 4.02(a)(i)(ff), |
| (ii) | recalling Mills and Mr. Štěpán
Hřivna from the office of managing directors (in Czech: jednatel) of Next
Metrology with effect as from the Completion Date, |
| (iii) | appointing new managing directors
of Next Metrology selected by the Buyer and with effect as from the Completion Date (the
Seller shall bear no liability for the appointment and actions of the newly appointed
managing directors), |
| (iv) | unanimously approving transfer
of the Share, of the Mills Share and of the Topmes Share to the Buyer (the resolution
of Next Metrology’s General Meeting in this regard shall be in the form of notarial
deed); |
| (ll) | delivery to the Buyer of waivers
by the Seller in the form attached as Exhibit 4.02(a)(i)(ll) by which the Seller waives
his right of first refusal to the Topmes Share and of the Mills Share. |
| (ii) | the Buyer shall cause the following
to occur or have occurred: |
| (aa) | delivery to the Seller of the
evidence of the payment, by bank wire transfer, of the Purchase Price, except for the
portion of the Purchase Price credited by the Buyer to the Indemnity Holdback Account; |
| (bb) | delivery to the Seller of a certified
copy of a power of attorney conferring the authority of each person entering into an
agreement or document on behalf of the Buyer, if applicable; |
| (iii) | the Seller and the Buyer shall,
each to the extent within their control: |
| (aa) | cause the execution by the Buyer
and Seller of the OITA. |
| (iv) | All conditions to Completion under
both the Mills SPA and the Topmes SPA, except for the consummation of the Completion
action consisting of the occurrence of Conditions to Completion under this Agreement,
have occurred. |
| (b) | Completion shall be deemed to have
occurred when all of the actions and transactions indicated in Section 4.02(a) above
shall have been duly consummated or waived by the interested Party. |
4.03 Conditions to Completion
| (a) | Completion is subject to the following
conditions to Completion which shall have occurred or shall have been satisfied or waived
by the interested Party by the Completion Date: |
| (a1) | conditions in favor of each of the
Buyer and the Seller: all actions and transactions provided for in Section 4.02 shall
have been consummated or waived by the interested Party in writing; |
| (a2) | conditions in favor of the Buyer: |
| (i) | Next Metrology’s assets
and the Share are free and clear of any Encumbrances; |
| (ii) | no Material Adverse Change
occurred in Next Metrology since the Reference Date; |
| (iii) | receipt of Required Consents; |
| (iv) | no legal proceedings are pending
which are aimed at preventing the Transaction (or any portion thereof) from completing. |
| (b) | Should any of the conditions indicated
in paragraph (a) above not be satisfied or waived by the interested Party by the Completion
Date, the Parties shall be released from the obligation to complete the acquisition of
the Share contemplated by this Agreement, which shall be deemed terminated. |
| (c) | Should any of the conditions to Completion
provided for in this Section 4.03 not be met or satisfied by the Completion Date due
to one of the Parties’ failure to provide its utmost co-operation for the purpose
of the satisfaction of such conditions or to fulfill the obligations provided for in
Section 4.02, termination of this Agreement pursuant to Section 4.03(b) shall be without
prejudice to any remedy the other Party may have under the law or pursuant to this Agreement. |
| (d) | The Seller shall deliver to the Buyer
a statement of the Seller whereby the Seller acknowledges receipt of the Purchase Price,
except for the portion of the Purchase Price credited by the Buyer to the Indemnity Holdback
Account. Such statement shall be delivered by the Seller to the Buyer within 5 (five)
calendar days from the day of its receipt. |
SECTION 5
Pre-Completion Date Covenants
5.01 Management and conduct of Next
Metrology Business
| (a) | From the date hereof and until the
Completion Date, unless otherwise contemplated by this Agreement or approved by the Buyer
in writing, the Seller shall cause Next Metrology to: |
| (i) | conduct Next Metrology’s
business (including managing the working capital, the collection of accounts receivable,
the payment of accounts payable) with due care and diligence in the ordinary and usual
course, consistent with past practice as disclosed to the Buyer; |
| (ii) | continue to insure all insured
assets which are part of Next Metrology’s business, whether owned or leased, and
use, operate, maintain and repair all such assets in accordance with past practice; |
| (iii) | preserve its relationships with
the employees, self-employed persons, distributors, agents, representatives, suppliers
and customers; |
| (iv) | refrain from acting or omit to
act in such way as to cause a material breach of any material agreement, contract, commitment
or obligation of Next Metrology; |
| (v) | keep Next Metrology’s facilities,
machinery and equipment in normal operating conditions and repair, except for ordinary
wear and tear; |
| (vi) | duly and timely comply in all
material respects with all of its obligations, including the obligations arising from
any loan or other financial commitment; |
| (vii) | give the Buyer reasonable direct
access to management, legal and financial advisors, auditors and documents of Next Metrology; |
| (viii) | continue to maintain its books
and records in accordance with all applicable laws and the Agreed Accounting Principles. |
| (b) | The Seller agrees, from the date
hereof and until the Completion Date, to cause Next Metrology not to make decisions concerning
the matters listed below and not to implement such decisions without the Buyer’s
prior written consent (such consent not to be unreasonably denied or delayed): |
| (i) | sale or disposal of any assets; |
| (ii) | granting of any rights (including
in rem securities) in respect of any of Next Metrology’s assets or the charging
of any of said assets with any Encumbrances; |
| (iii) | decisions to incur any indebtedness
or to borrow any money or to enter into any factoring or invoice discount agreement; |
| (iv) | extension of the terms of
payment of any payables or other liabilities or of any receivables or discount any receivables; |
| (v) | transactions (including share
capital increase or decrease) which affect the share capital of Next Metrology; |
| (vi) | the granting of any rights
(including in rem security rights) on any of the shares of Next Metrology or any
further share to be issued by Next Metrology and issuance of any bond or other securities; |
| (vii) | decisions to undertake any
capital commitment (purchase or financial / capital lease of fixed or other assets); |
| (viii) | decisions to enter into
any partnership, consortium, association, joint venture agreements; |
| (ix) | change of the remuneration
of any of the employees, other than increases required by the law or by the applicable
collective bargaining agreements; |
| (x) | recruitment of any new registered
managing director or any key manager; |
| (xii) | acquisition or disposal of
equity interests in other entities or of businesses as going concerns or any branches
thereof; |
| (xiii) | agreements with customers
or suppliers (including purchase orders) (aa) which have each a value greater than EUR
30,000 as to customers contracts and EUR 30,000 as to suppliers, or (bb) whereby the
counterpart may withdraw or terminate without cause, or (cc) whereby the counterpart
may withdraw or terminate for change of control, or (dd) which provide for restrictions
to Next Metrology’s or any of Next Metrology’s present or future Affiliates’
freedom to operate in the market, or (ee) whereby Next Metrology must give unusual warranties
or guarantees, or (ff) which contemplate unusual payment terms if compared with standard
market practice; |
| (xiv) | agreements with related parties
(including shareholders, directors or employees of Next Metrology or relatives of the
shareholders or of the directors or employees); |
| (xv) | change in accounting methods,
policies or procedures or presentations of accounts; declaration and distribution of
dividends or capital funds; |
| (xvi) | settlements of disputes; |
| (xvii) | guarantees to secure the
obligations of a third party; |
| (xviii) | liquidation; dissolution;
mergers, de-mergers and restructurings; |
| (xx) | permitting the lapse or forfeiture
of intellectual property rights or other intangible assets; |
| (xxi) | fail to file any tax returns
or any other report to any authority as required under the law or any contract by its
applicable due date or fail to pay any taxes that first become due and payable after
the date hereof, as and when they first became due and payable; |
| (xxii) | negotiations for the settlement
or compromise, settlements or compromise of any tax liability; |
| (xxiii) | enter into or amend any
agreement, except for acceptance or placement of purchase orders in the ordinary course
of business; |
| (xxiv) | pay any dividend or distribution; |
| (xxv) | terminate any material agreement; |
| (xxvi) | taking any action that would
make any of the representations and warranties hereof untrue or failing to take any action
that would prevent any of the representations and warranties from becoming true. |
| (c) | The Seller agrees to use his best
efforts to cause Next Metrology to take such actions and to execute such certificates
and other documents as from time to time shall be reasonably requested by the Buyer to
allow the Buyer to make any tax election requested by the Buyer (including, without limitation,
an entity classification election under U.S. Treasury Regulation Section 301.7701-3(c)(1)(i)
on Form 8832 with an effective date that is the day immediately preceding the Completion). |
5.02 Site visits
The Seller shall ensure, prior to Completion
Date, that representatives of the Buyer are allowed to visit the Property and the facilities of Next Metrology, upon the Buyer’s
reasonable request, which shall be made in writing (also via email) at least 2 Business Days before the date of the visit; in
any event, the Buyer hereby acknowledges that the visit on site shall be carried on in a manner which will not unreasonably disrupt
the normal and ordinary activity of Next Metrology, its directors, managers and employees.
5.03 Other Pre-Completion Date Covenants
| (a) | The Seller shall ensure that, from
the date hereof until the Completion Date, the Buyer will have access to Next Metrology’s
books, records, contracts and personnel, upon its reasonable request which shall be made
in writing (also via email) before the date of the relevant access, being agreed and
understood that such access shall be carried on in a manner which will not unreasonably
disrupt the normal and ordinary activity of Next Metrology, its directors, managers and
employees. |
| (b) | The Seller and the Buyer shall take,
and shall cause Next Metrology to take all necessary actions to obtain the Required Consents,
so that they are delivered prior to the Completion Date. |
| (c) | The Seller shall and shall cause
Next Metrology to cause the representations and warranties referred to in Sections 6(b)
and 7.02 to be accurate, true and correct as at the Completion Date as if given at the
Completion Date. |
| (d) | Prior to the Completion Date, the
Seller will not, and will cause its respective officers, directors, employees, legal
counsel, accountants, advisors or other consultants or agents to not directly or indirectly,
solicit or enter into any agreement or negotiations with, or furnish information to,
any person with respect to any proposal to acquire any of the share capital or a substantial
portion of the assets of Next Metrology or to merge or consolidate with Next Metrology.
If the Seller receives any such proposals, or inquiries regarding the same, the Seller
shall promptly notify the Buyer of the terms of such proposals or inquiries and the identity
of the parties making the same. |
SECTION 6
Due diligence
| (a) | Prior to the execution of the Agreement,
the Buyer has conducted a full legal, economic, financial, accounting, commercial, tax,
employment, social security, corporate and environmental due diligence on Next Metrology
(“Due Diligence”). Without prejudice to any other term and condition
contemplated by this Agreement, on the basis of the outcome of the Due Diligence, the
Buyer has agreed to enter into this Agreement. |
| (b) | The Seller warrants and represents
that all information and data which the Seller, the directors, employees or advisors
of Next Metrology provided to the Buyer during the Due Diligence process and the negotiations
prior to the execution of the Agreement are true, correct and not misleading and fairly
reflect the financial, economic and business situation of Next Metrology and no relevant
document and information requested by the Buyer during the Due Diligence has been withheld. |
SECTION 7
Representations and warranties
7.01 Buyer’s representations
and warranties.
The Buyer represents and warrants to the
Seller that the representations and warranties indicated in Exhibit 7.01 are true, correct and not misleading as at the date of
this Agreement and hereby acknowledges that each of such representations and warranties is material and essential to the Seller,
who is relying on such representations and warranties in entering into this Agreement. For the avoidance of any doubt, it is agreed
that the Buyer’s representations and warranties shall not be affected, limited or diminished by any knowledge by the Seller
of the matters covered by the representations and warranties.
7.02 Seller’s representations
and warranties.
| (a) | The Seller represents and warrants
to the Buyer that the representations and warranties indicated in Exhibit 7.02 and Section
6(b) are true, correct and not misleading as at the date of this Agreement, except as
otherwise Disclosed in the Disclosure Letter attached hereto as Exhibit 7.02(a), and
hereby acknowledges that each of such representations and warranties is material and
essential to the Buyer, who is relying on such representations and warranties in entering
into this Agreement. For the avoidance of any doubt, it is agreed that the Seller’s
representations and warranties shall not be affected, limited or diminished by any investigation
(including the Due Diligence) up to this date or hereafter made by the Buyer (directly
and through its advisors) with respect to Next Metrology, the Share, Next Metrology’s
assets, liabilities and properties or by any knowledge by the Buyer of the matters covered
by the representations and warranties, except for the matters Disclosed in the Disclosure
Letter. As of the date of this Agreement, the Buyer’s representatives, Jeffrey
Armstrong or Keith Marchiando , do not have actual conscious awareness of any inaccuracy
or breach of the representations and warranties of the Seller in this Agreement. |
| (b) | Each of the representations and warranties
made or given by the Seller in or pursuant to Sections 6(b) and 7.02 of this Agreement
or confirmed by the Seller at the Completion Date pursuant to Section 4.02(a)(i)(ee)
shall be construed as a separate and independent representation and warranty and, except
where expressly stated, shall not be limited or restricted by reference to or inference
from the terms of any other representations and warranties or any other provision of
this Agreement. |
| (c) | The rights and remedies of the Buyer
in respect of any breach of the representations and warranties made or given by the Seller
in or pursuant to this Agreement or confirmed by the Seller at the Completion Date pursuant
to Section 4.02(a)(i)(ee) shall not be affected by completion of the purchase of the
Share, by Buyer’s termination or failure to terminate this Agreement, by any failure
to exercise or delay in exercising any right or remedy or by any other event or matter
whatsoever, except a specific and duly authorised written waiver or release expressly
referring to such breach. |
| (d) | The Parties agree that provisions
of the Czech Civil Code regarding liability for defects, including, but not limited to,
Sections 1914(2) through 1925 and Sections 2099 through 2117 of the Czech Civil Code,
shall not be applicable to this Agreement. |
SECTION 8
Breach of representations and warranties
8.01 Breach of Seller’s representations
and warranties
| (i) | As the only and sole remedy available
to the Buyer under this Agreement in connection with the breach of the Seller’s
representations and warranties, the Buyer shall have a contractual claim to (and the
Seller shall pay to the Buyer the amount of) a discount of the Purchase Price (“Discount”),
corresponding to the amount of Detriment (aa) resulting or deriving from the fact that
any of the representations and warranties made or given by the Seller in or pursuant
to Sections 6(b) and 7.02 of this Agreement or confirmed by the Seller at the Completion
Date pursuant to Section 4.02(a)(i)(ee) are untrue, incorrect or misleading, (bb) resulting
or deriving from any discrepancy between the representations and warranties confirmed
by the Seller at the Completion Date pursuant to Section 4.02(a)(i)(ee) and the situation
as at the Completion Date, or (cc) resulting or deriving from any acts or omissions of
Next Metrology or Seller on or prior to the Completion Date. |
| (ii) | For the purposes of this Agreement,
the “Detriment” shall, irrespective of the size of Seller’s
ownership interest in Next Metrology, be quantified as an amount equal to the aggregate
of: |
| (aa) | the amount needed to compensate
for the decrease in the value of Next Metrology compared to the value of Next Metrology
that it would have if the Seller’s representation or warranty had not been breached
or had not been untrue or misleading; and |
| (bb) | all losses, costs and expenses
including, without limitation, damages, legal and other reasonably incurred professional
fees and costs, penalties, expenses incurred by the Buyer or Next Metrology and resulting
or deriving from the fact that any of the representations and warranties made or given
by the Seller in or pursuant to Sections 6(b) and 7.02 of this Agreement or confirmed
by the Seller at the Completion Date pursuant to Section 4.02(a)(i)(ee) are untrue, incorrect
or misleading. |
| (iii) | The obligation to pay the Detriment
in the form of the Discount provided for in this Section 8.01 shall extend to all costs,
expenses (including reasonable attorney’s fees and experts’ costs) and disbursements
incurred by the Buyer in enforcing its rights in respect of a claim under this Agreement
and/or by Next Metrology in enforcing its rights and in resisting any Third Party Claim. |
| (iv) | The Parties agree that any payments
due by the Seller for breaching the Seller’s representations and warranties shall
be made by the Seller directly to the Buyer, unless the Buyer gives instructions to the
Seller to make such payments directly to Next Metrology. |
| (v) | The Seller shall be under no obligation
to grant to the Buyer under this Section 8.01 Discount for any Detriment in relation
to which, by the time the payment by the Seller is due, either the Buyer or Next Metrology
receives compensation, indemnification or reimbursement by third parties (including insurance
companies), without recourse, to the extent of such compensation, indemnification or
reimbursement. |
| (vi) | If any amount payable pursuant
to this Section 8.01(a) is subject to Tax, that amount shall be increased so as to ensure
that the net amount received by the Buyer and/or Next Metrology shall, after Tax, be
equal to that which would have been received had the payment and any increased payment
not been subject to Tax. |
| (vii) | If any amount is paid by the
Seller to the Buyer pursuant to this Section 8.01(a), the amount of such payment shall
be deemed to constitute a reduction in the Purchase Price payable under this Agreement. |
| (viii) | Any claims arising from a breach
of the Seller’s representations and warranties may be recovered by the Buyer only
once in respect of the same breach. If a claim for a breach of Seller’s representations
and warranties is recovered by Next Metrology, then the Buyer is excluded from recovering
any part of the Detriment in the form of the Discount for the same reason to the extent
already recovered by Next Metrology. Likewise, if a claim for a breach of a Seller’s
representations and warranties is recovered by the Buyer, then Next Metrology is excluded
from recovering any payments for the same reason to the extent already recovered by the
Buyer. With regard to any breach of the Seller’s representations and warranties,
the Buyer shall have no rights in relation to the Seller other than those stipulated
in this Section 8 (save for the Buyer’s right to terminate this Agreement pursuant
to Section 14). Should the Buyer, Next Metrology or any Affiliate claim any Detriment
from the Seller on any other legal ground in an amount exceeding the claims which the
Buyer may raise under this Agreement, the Buyer undertakes to fully indemnify the Seller
for any payments the Seller has to make in this situation which would exceed the claims
which the Buyer may raise under this Agreement. |
| (b) | Limitations to the Seller’s
liability |
| (i) | The Seller shall only be liable
to the Buyer under this Section 8.01 for any Detriment if the total amount of the Detriment
exceeds Eur 10,000 (ten thousand), in which case the Seller shall be liable only for
the excess amount. |
| (ii) | The Seller shall be liable to
the Buyer under this Section 8.01 for any Detriment up to a maximum amount equal to Eur
100,000 (one hundred thousand) (the “Discount Cap”). |
| (iii) | The limitation to the Seller’s
liability provided for in paragraphs (b)(i) and (b)(ii) above shall not apply to Detriment
resulting or deriving from any inaccuracy or breach of any of the representations and
warranties relating to authority, good standing, title to the Share, regulatory compliance,
Encumbrances, tax or social security matters, in which cases the Seller shall be liable
to the Buyer for any Detriment up to a maximum amount equal to 100 per cent of the Purchase
Price. |
| (iv) | Irrespective of any other provision
of this Agreement, the remedy available to the Seller in connection with the breach of
the Seller’s representations and warranties shall not be limited in any way if
such breach of the Seller’s representations and warranties results or derives from
fraud or intentional misrepresentation. |
| (v) | The Parties agree that any event
or circumstance Disclosed by the Seller in Exhibit 7.02 or the Disclosure Letter will
exclude the Seller’s liability under Section 8.01 as to the Detriment which specifically
relate to the disclosure. |
| (vi) | The Seller shall not be liable
for specific Detriment to the Buyer to the extent that: |
| (aa) | The reasons for which the Detriment
has arisen are attributable (wholly or partially) to: |
| (i) | changes made after the Completion
to the Agreed Accounting Principles unless such changes are made in accordance with applicable
legal regulation or specifically requested by competent state authorities; or |
| (ii) | a retroactive change in the
procedure of the relevant tax administrator published after the Completion, or |
| (iii) | the adoption of a law after
the Completion having retroactive effect for Next Metrology; |
| (c) | Time limits to Seller’s
liability |
The Seller shall not be liable
to the Buyer under Section 8.01 in respect of any Detriment if the relevant Detriment Claim is notified to the Seller after:
| (aa) | the 20th (twentieth)
Business Day after the later of (i) the date of expiration of the relevant statute of
limitation or (ii) the 5th (fifth) anniversary of the Completion Date, as
to any Detriment referred to in paragraph (b)(iii) above; |
| (bb) | the 20th (twentieth)
Business Day after 12 months from the Completion Date, for any Detriment relating to
matters other than those indicated in sub-paragraph (aa) above. |
8.02 Breach of Buyer’s representations
and warranties
| (a) | The Buyer shall pay to the Seller as
a contractual claim originating under this Section 8.02 the amount of all losses, damages,
costs and penalties incurred in, or suffered by the Seller, resulting or deriving from
any inaccuracy or breach of any of the representations and warranties made or given by
the Buyer in or pursuant to this Agreement. |
| (b) | The provisions of Section 8.01 (including
those concerning liability limitations) shall apply to the obligations of the Buyer herein
mutatis mutandis. |
8.03 Detriment Claim procedure
| (a) | Whenever an event or circumstance which
could give rise to a Detriment Claim (including a Third Party Claim) (“Detriment
Event”) occurs for which a Party may seek remedy under Section 8, the Party
seeking the remedy (“Claiming Party”) shall notify in writing the
Party against which the Detriment Claim is made (“Liable Party”) (and,
for a Third Party Claim, within 120 (one hundred twenty) days after the Claiming Party
has actual knowledge of the Detriment Event) (“Notice of Claim”).
The Notice of Claim shall specify relevant facts known to the Claiming Party giving rise
to the Detriment Claim, the amount of the Detriment and the request for payment of the
Detriment in the form of the Discount in case of the Buyer’s claim or request for
payment of Detriment in case of Seller’s claim. |
| (b) | If the Detriment Event is a Third Party
Claim against Next Metrology, the following shall apply: |
| (i) | the Buyer shall cause Next Metrology
to diligently take all reasonable defensive steps; |
| (ii) | in the defense against the Third
Party Claim, the Buyer shall cause Next Metrology to consult with the Seller; |
| (iii) | Next Metrology’s management
and/or the Buyer shall inform the Seller about the status of the relevant matter and
about any developments in connection with the Third Party Claim; |
| (iv) | in any event, the Buyer shall
not agree to any settlement of the Third Party Claim or to any waiver related thereto,
without the prior written consent of the Seller, not to be unreasonably withheld or delayed
and which shall be considered as granted absent response within 10 (ten) Business Days
following written request from the Buyer to the Seller. Should the Seller deny his approval,
as a condition to the effectiveness of such denial, (aa) he shall specify the reasons
for the denial in writing and (bb) he shall be liable for the relevant Detriment including
the immediate payment of all costs incurred to defend such Third Party Claim as they
are incurred by Claiming Party; |
| (v) | the relevant obligations to pay
the Detriment in the form of the Discount shall survive until the Third Party Claim has
been finally resolved. |
| (c) | Payments of all amounts due by the
Liable Party pursuant to Section 8 shall be made as follows: |
| (i) | if the Detriment Event is a Third
Party Claim against Next Metrology, payments shall be made within 15 (fifteen) Business
Days from receipt of the Buyer’s written request which shall bear a copy of: |
| (aa) | the enforceable decision, award
or order, whether final or provisional, served upon Next Metrology and which ascertains
or determines the Detriment ; or |
| (bb) | the settlement agreement entered
into by Next Metrology which determines a Detriment . |
| (ii) | in case of a Detriment Event
other than a Third Party Claim against Next Metrology, within 10 (ten) Business Days
from receipt of the Notice of Claim; provided that the Seller has not objected in writing
to such Notice of Claim within such 10 (ten) Business Day period (“Notice of
Objection”). Any such Notice of Objection shall state the nature and basis
of any such objection and the monetary amount of the claim in dispute. Payment of such
claim shall be made by the Seller, together with interest thereon from the date of the
original Notice of Claim until the date paid, at the interest rate set forth in Section
15.11, within 15 (fifteen) Business days from receipt of the Buyer’s written request,
which shall bear: |
| (aa) | a certified copy of an award (whether
final or provisions) by the Arbitral Tribunal referred to in Section 16.02 which ascertains
or determines that the Seller is liable for the claim; or |
| (bb) | a copy of the settlement agreement
entered into between Buyer and the Seller which determines the amount that the Seller
must pay relating to the claim. |
SECTION 9
Further covenants and specific obligations
of the Seller
9.01 General
The Parties agree that:
| (i) | for the avoidance of any doubt, the
Seller’s obligations provided for in this Section 9 shall not be subject to Section
8 nor to the same restrictions, limitations and procedure therein; |
| (ii) | any payments due by the Seller pursuant
to this Section 9 shall be made by the Seller directly to the Buyer, unless the Buyer
gives instructions to the Seller to make such payments directly to Next Metrology. |
9.02 Managing Directors’ Claims
The Seller shall indemnify and hold the
Buyer and Next Metrology harmless from and against any claim (and any consequence thereof) by the managing director of Next Metrology
who was in office at any time up to Completion, in relation to matters relating to the period up to Completion.
9.03 Trade-names, trademarks and
other intellectual or industrial property
The Seller shall not use or attempt to
use, in the course of any business on his own account or in conjunction with or on behalf of any person or in any other manner
whatsoever, directly or indirectly, the trade-names, trademarks, service marks, brand names, designs or logos, domain names and
any other similar intellectual property, whether registered or not, or any other trade-name, trademark, service mark, brand name,
design or logo similar to such trade-names, trademarks service marks, brand names, designs, logos, domain names or other similar
intellectual property of Next Metrology; (including the name Next Metrology or TouchDMIS whether used as a standalone name or
in association with other names).
SECTION 10
Restrictive Covenants
| (a) | The Seller agrees that, as from the
Completion Date and for a period of 3 (three) years thereafter (or in the case of the
Seller, for the period of time until the expiration date of any restrictive covenants
provided for in his Service Agreement, if shorter), in his capacity as a seller of the
Share and irrespective and without prejudice to any other restrictive covenant he has
agreed or will agree to, he shall not: |
| (i) | either on his own account or
in conjunction with or on behalf of any person, carry on, engage, be concerned or interested
(directly or indirectly and whether as principal, shareholder, director, employee, agent,
distributor, consultant, partner or otherwise) in the business of designing, engineering,
manufacturing, marketing, selling, installing, servicing and maintaining CMMs and laser-based
and other technology, software and applications used in connection with CMMs; |
| (ii) | either on his own account
or in conjunction with or on behalf of any person, solicit or endeavour to entice away
from the Company (Buyer, Next Metrology and their respective Affiliates) any person who,
at the Completion Date, is an officer, manager, employee, self-employed person, or consultant
of Next Metrology, whether or not such person would commit a breach of contract by reason
of leaving service or office; |
| (iii) | either on his own account
or in conjunction with or on behalf of any person, endeavour to entice away from the
Company any person who, at the Completion Date of this Agreement, is a customer of Next
Metrology (directly or indirectly through software sales by original equipment manufacturers,
distributors and dealers), whether or not such customer would be in breach of its contract
with Next Metrology or – after Completion – with the Company as a result
thereof; and |
| (iv) | either on his own account
or in conjunction with or on behalf of any person, carry on, engage, be concerned or
interested (directly or indirectly and whether as principals, shareholders, directors,
employees, agents, distributors, consultants, partners or otherwise) in any business
conducted by the Company at the Completion Date, or in any business involving the design,
development, manufacture, sale or servicing of machine vision sensors and systems utilizing
electro-optical techniques or component parts utilized in such sensors or systems. |
| (b) | The Seller and the Buyer represent
to each other and acknowledge that the provisions contained in Section 10(a) are necessary
for the protection of the Buyer’s and Next Metrology’s interests and goodwill.
The geographical scope of the Seller’s obligations contained in Section 10(a) shall
be the entire world. Should any such restriction or undertaking be void or voidable but
would be valid and enforceable if some part or parts of the restriction or undertaking
were deleted or modified, such restriction or undertaking shall apply with such deletion
or modification as may be necessary to make it valid and enforceable. The consideration
for the Seller’s fulfillment of the obligations contained in this Section 10 has
been included in the Purchase Price. |
SECTION 11
Indemnity Holdback Account
| (a) | Upon Completion, the Buyer shall
credit, by book entry only, to an escrow ledger account (“Indemnity Holdback
Account”) maintained by the Buyer a portion of the Purchase Price in Cash equal
to Eur 100,000 (one hundred thousand) (“Indemnity Holdback Amount”).
The Indemnity Holdback Amount shall serve the purpose to secure the Seller’s timely
fulfillment of all of his obligations as arising from this Agreement (including the obligations
provided for in Sections 8 and 9 (as confirmed pursuant to Section 4.02(a)(i)(ee)) and
the obligation deriving from any breach of the obligations arising from Section 10 (“Contractual
Claim”). |
| (b) | Any remaining balance in the Indemnity
Holdback Account shall be paid by the Buyer to the Seller upon expiration of the Indemnity
Holdback Account, provided that, if claims which may trigger the Seller’s obligation
to pay a Contractual Claim are pending upon the expiration date: |
| (aa) | the term will be extended
until these claims are resolved; |
| (bb) | an amount equal to the lower
of the balance of the Indemnity Holdback Account and the aggregate amount of the outstanding
Contractual Claims upon the expiration of the Indemnity Holdback Account will be frozen
in the Indemnity Holdback Account until these claims are resolved. |
| (c) | The Indemnity Holdback Account shall
expire twelve months after the Completion Date. |
| (d) | The following amounts shall be credited
against and so reduce the Indemnity Holdback Account (as a result, any Contractual Claim
of the Buyer shall thereby be automatically set off against a claim of the Seller to
have the equivalent part of the Purchase Price paid): |
| (i) | amounts mutually agreed upon
by the Buyer and the Seller; |
| (ii) | amounts set forth in a certified
copy of any award (whether final or provisional) by the Arbitral Tribunal referred to
in Section 16.02 which orders the Seller to pay a Contractual Claim to the Buyer (or
Next Metrology), but only to the extent of the amount to be paid by the Seller as indicated
in the relevant award. |
SECTION 12
[Intentionally left blank.]
SECTION 13
[Intentionally left blank.]
SECTION 14
Termination
| (a) | The Parties acknowledge that any
Material breach by the Seller of any of the obligations provided for in Sections 5.01,
5.02 or 5.03, in case the Seller fails to remedy such breach, if the breach is capable
of remedy, within an additional period of 10 (ten) calendar days from the delivery of
a written notice by the Buyer to the Seller, shall entitle the Buyer to terminate this
Agreement with immediate effect by way of written notice. |
| (b) | The Buyer shall further be entitled
to terminate this Agreement with immediate effect by way of written notice: |
| (i) | in case any Material breach
of any of the representations and warranties given by the Seller pursuant to this Agreement
occurs prior to or on the Completion Date and the Seller fails to remedy such breach,
in case the breach is capable of remedy, within an additional period of 5 (five) calendar
days from the delivery of a written notice by the Buyer to the Seller; |
| (ii) | in case either Party receives
an order or other enforceable instrument issued by a court of law or any other governmental
authority or agency which enjoins that Party to refrain from executing any document or
taking any action required for Completion pursuant to this Agreement or the law; |
| (iv) | the Seller or Next Metrology
is insolvent. |
| (c) | With the exception of instances set
forth in this Section 14, the Parties, to the maximum extent allowed by Czech law, exclude
all provisions of the Czech Civil Code and other applicable regulations under which a
Party might be entitled to withdraw from or otherwise terminate this Agreement. |
| (d) | The Parties agree that the right
to terminate this Agreement under this Section 14 cannot be utilised after the Completion
occurs. |
SECTION 15
Miscellaneous
15.01 Compliance
| (a) | The Parties acknowledge that, as from
the Completion Date, Next Metrology shall adopt and implement organisational and internal
audit and control models and procedures in compliance with those applied by the group
to which the Buyer belongs, including its ethical rules, compliance, anti-bribery, anti-corruption
and anti-money laundering regulations. The Seller shall provide his utmost assistance
and support in the process which will be required to implement such models and procedures
so as to guarantee as swift an integration of Next Metrology into the Buyer’s group
as possible after Completion. |
15.02 Confidentiality
| (a) | Each of the Seller, Next Metrology
and the Buyer shall at all times keep strictly confidential and, as applicable, each
of the Seller, Next Metrology and the Buyer shall procure that their respective officers,
employees and professional advisers keep strictly confidential any information pertaining
to this Agreement (including but not limited to the purchase price and terms of sale)
and the financials, business operations, marketing practices or policies, litigation,
identity of customers as well as any other confidential aspect of Next Metrology, except
for such information relating to this Agreement which Buyer and its Affiliates may be
required to disclose in connection with reporting and disclosures requirements of the
Buyer and its Affiliates under applicable law or the rules of The Nasdaq Stock Market
and except for any such information which: |
| (i) | at the time of disclosure is publicly
available or becomes publicly available otherwise than, directly or indirectly, through
the breach by any of the Seller, Next Metrology or the Buyer of this Section 15.02 or
the failure of any officer, employee or professional adviser referred to above to keep
the same confidential; or |
| (ii) | is required to be disclosed by
any other applicable law or by any supervisory or regulatory body, in which case the
Party shall inform, to the extent reasonably practicable, the other Party that such disclosure
is required, and the Parties shall use their reasonable efforts to agree in good faith
on the content of such disclosure prior to it being made. |
| (b) | The Seller and Next Metrology acknowledge
that an Affiliate of the Buyer is listed on The Nasdaq Stock Market and its stock is
registered with the Securities and Exchange Commission and is therefore subject to strict
regulatory obligations in relation to the disclosure of any information and data concerning
transactions similar to the transaction contemplated by this Agreement. Therefore, the
Seller and Next Metrology agree that any public disclosure of any information or data
concerning the transaction contemplated by this Agreement, including any press release,
shall be made only at such time and in such form and substance as acceptable to the Buyer. |
15.03 Entire agreement and amendments
| (a) | This Agreement and the OITA shall
together form the sole and entire agreement between the Parties governing the Transaction
as contemplated herein and supersedes all prior verbal and/or written agreements between
the Parties concerning its subject matter. In the event of any inconsistency between
the Agreement and the OITA, this Agreement shall prevail. The Agreement shall survive
conclusion of OITA in its entirety with the exception of the obligation of the Parties
to enter into the OITA under Section 4.02(a)(iii)(aa), which shall be consumed by conclusion
of the OITA. |
| (b) | The amendments to this Agreement shall
be valid and effective if agreed upon by the Parties in writing. |
15.04 Successors - Assignment
This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the Parties and their respective permitted assignees, heirs or
successors. Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by one Party without
the prior written consent of the other Parties, while such consent might not be unreasonably withheld or delayed; provided that
Buyer may Assign its rights under this Agreement to a party who acquires all or substantially all of the Assets of Next Metrology,
provided that such assignment shall not relieve the Buyer of its obligations under this Agreement without the prior written consent
of the Seller.
15.05 Notices
Any communication or notice required or
permitted to be given under this Agreement shall be made in writing and in the English language by way of either registered mail
or telefax, addressed, in each case, to the addresses indicated below (or to such other address as each Party may hereafter provide
to the other by written notice as provided herein) and with a copy by e-mail and it shall be deemed to have been duly and validly
given: (i) in case of notice sent by registered mail, upon receipt of the same; and (ii) in case of notice sent by telefax, upon
acknowledgement of successful and complete transmission by the fax machine of the sender:
if to Buyer:
c/o Perceptron, Inc.
47827 Halyard Drive
Plymouth, MI 48170
U.S.A.
Fax No. +1-734-414-4800
Attention: Jeffrey M. Armstrong, President
e-mail: armstrong@perceptron.com
with a copy (which shall not constitute
notice) to:
Thomas S. Vaughn
Dykema Gossett, PLLC
400 Renaissance Center
Detroit, MI 48243
Fax No.: +1-313-568-6915
e-mail: tvaughn@dykema.com
if to the Seller:
Angelo Muscarella
c/o
Avv. Luca Mastromatteo, Esq.
Gianni, Origoni, Grippo, Cappelli &
Partners
Corso Vittorio, Emanuele II, 83
10128 Torino, Italy.
Fax: +39-011 5185932
e-mail: lmastromatteo@gop.it
with a copy (which shall not constitute
notice) to:
Avv. Luca Mastromatteo, Esq.
Gianni, Origoni, Grippo, Cappelli &
Partners
Corso Vittorio, Emanuele II, 83
10128 Torino, Italy.
Fax: +39-011 5185932
e-mail: lmastromatteo@gop.it
15.06 Language
This Agreement is entered into in the
English language. The Parties hereby acknowledge to have fully understood its content and all of its terms and conditions.
15.07 Severability
If any provision of this Agreement is
held to be illegal, invalid, unenforceable or deemed non-existent under present or future laws effective during the term of this
Agreement, such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid,
unenforceable, or non-existent provision had never comprised a part of this Agreement and the remaining provisions of this Agreement
shall remain in full force and effect and shall not be affected by the illegal, invalid, unenforceable or non-existent provision
or by its severance from this Agreement. Furthermore, in lieu of each such illegal, invalid, unenforceable or non-existent
provision, a provision as similar in terms to such illegal, invalid, unenforceable or non-existent provision as may be possible
and be legal, valid and enforceable shall be added automatically, as a part of this Agreement.
15.08 Fees and expenses
| (a) | Except as otherwise expressly provided
for by this Agreement, all legal and other advisors’ fees, costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall be borne
by the Party incurring such fees, costs or expenses. |
| (b) | All stamp duties, registration taxes
and notary fees relating to the transfer of the Share pursuant to Section 2(b) shall
be borne by the Buyer. |
15.09 Obligations of the Seller:
general clause
| (a) | the Seller hereby agrees to cause
Next Metrology to duly and timely fulfill all of the obligations arising from this Agreement. |
| (b) | Where the Seller covenants with the
Buyer that he shall procure that a person different from the Seller will comply with
any of the provisions of this Agreement, the Seller thereby covenants pursuant to Section
1769 second sentence of the Czech Civil Code that if such person will not comply with
the respective provisions of this Agreement he will cover damage suffered by the Buyer
and/or Next Metrology resulting from such failure to comply. |
15.10 Interest Rate
Should any payment due under this Agreement
by either Party not be made on or before the agreed term for payment, annual interest equal to EURIBOR 3 months plus 500 basis
points (or the maximum percentage allowed by anti-usury laws and regulations from time to time, if lower) will accrue from the
date of expiration of the payment term until the actual payment is provided.
15.11 Waivers
| (a) | No delay, indulgence or omission
in exercising any right, power or remedy provided by this Agreement or by law shall operate
to impair or be construed as a waiver of such right, power or remedy or of any other
right, power or remedy. |
| (b) | The Seller agrees with the Buyer: |
| (i) | to waive any claim or remedy or
right which he may have as at Completion; and |
| (ii) | that Next Metrology and any
managing director, officer or employee of Next Metrology shall have no liability whatsoever
to the Seller on or after Completion, |
in respect of any misrepresentation,
inaccuracy or omission in or from any information or advice supplied or given by Next Metrology or a director, officer or employee
of Next Metrology for the purpose of assisting the Seller in giving any warranty, representation, undertaking or covenant, in
preparing due diligence documents and in entering into this Agreement or any agreement or document entered into pursuant to this
Agreement.
15.12 Survival of the Agreement
The provisions of this agreement insofar as they have not been
performed at Completion shall remain in full force and effect notwithstanding Completion, including conclusion of the OITA.
SECTION 16
Governing Law - Arbitration
16.01 Governing Law
This Agreement shall be governed by and
construed in accordance with the laws of the Czech Republic, without regard to the provisions governing conflicts of laws.
16.02 Arbitration
| (a) | Any dispute arising out of or related
to this Agreement shall be settled by arbitration under the Rules of Arbitration of the
International Chamber of Commerce of Paris, by three arbitrators, appointed in accordance
with such Rules, who shall be fluent in the English language. |
| (b) | The place of the arbitration shall
be Paris, France. The language of the arbitration shall be English. |
| (c) | Any dispute arising out of or related
to this Agreement and any comparable dispute arising out of the Mills SPA, the Topmes
SPA and the Coord3 Agreement shall be heard and decided in a single arbitration proceeding. |
SIGNED by Angelo Muscarella
Signature |
: /s/ Angelo Muscarella |
SIGNED by Perceptron, Inc.
Margaret Mary Kaczmarek Nelson
Vice President |
|
|
|
Signature |
: /s/ Margaret Mary Kaczmarek Nelson |
EXHIBIT 1.03
Certain Definitions
“Affiliates” |
shall mean persons controlling,
controlled by or under common control with the person. For purposes of this Agreement, “control” shall be interpreted
in accordance with Section 74 et seq. of Act No. 90/2012 Coll. of the Czech Republic, Act on Business Companies and
Cooperatives, as amended. |
|
|
“Agreed Accounting Principles” |
shall mean the Czech Accounting Principles.
|
|
|
“Agreement” |
shall mean this agreement, inclusive
of the Exhibits, Appendices and Annexes. |
|
|
“Annexes” |
shall mean all annexes, as listed above
in the table of contents. |
|
|
“Appendices” |
shall mean all appendices, as listed
above in the table of contents. |
|
|
“Business Day/s” |
shall mean each calendar day other
than Saturdays, Sundays and any other days on which banks are closed for business in the City of Torino, Italy and the City
of Prague, Czech Republic. |
|
|
“Buyer” |
shall have the meaning indicated in
the headings of this Agreement. |
|
|
“Claiming Party” |
shall have the meaning indicated in
Section 8.03(a). |
|
|
“CMM” |
means coordinate
measuring machine and equipment. |
|
|
“Company” |
shall mean the Buyer, Next Metrology
and their Affiliates. |
|
|
“Completion” |
shall mean the consummation of all
of the actions and transactions indicated in Section 4.02 (unless waived by the interested Party) and the completion of the
transfer of full title to and ownership of the Share to the Buyer as contemplated in this Agreement. |
|
|
“Completion Date” |
shall mean the date upon which Completion
will take place, as specified in Section 4.01(a). |
“Completion
Date Debt” |
shall mean the Debt of
Next Metrology as at the Completion Date, to be determined in accordance with the Agreed Accounting Principles. |
|
|
“Completion
Date Net Working Capital” |
shall mean
the Notional Net Working Capital of Next Metrology as at the
Completion Date, to be determined in accordance with
the Agreed Accounting Principles. |
|
|
“Contractual Claim” |
shall have the meaning indicated in
Section 11(a). |
|
|
“Coord3” |
shall mean
Coord3 Industries s.r.l. |
|
|
“Coord3
Agreement” |
shall mean
that certain Agreement for the purchase of 100% of the business of Coord3 Industries s.r.l. which will be entered into between
Perceptron CMM, LLC, a company established under the laws of the State of Michigan, United States of America, with offices
at 47827 Halyard Drive, Plymouth, Michigan 48170, United States of America, State of Michigan ID no. E5614M, Muscarella
and Coord3 Industries s.r.l., a company established under the laws of Italy, with registered offices at corso Siccardi 11bis,
Torino, Italy, registered with the Company Registry of Torino, Italy, registration and tax registration number 09061500014
on January 29, 2015. |
|
|
“Czech
Accounting Principles” |
shall mean
Czech Republic generally accepted accounting principles. |
|
|
“Czech
Civil Code” |
Act No.
89/2012 Coll. of the Czech Republic, Civil Code, as amended |
|
|
“Debt” |
shall mean
all liabilities of Next Metrology other than those included in the calculation of the Notional Net Working Capital. |
|
|
“Detriment” |
shall have the meaning indicated in
Section 8.01(a)(ii). |
|
|
“Detriment Claim” |
shall mean a claim raised under Section
8.01 or under Section 8.02. |
|
|
“Detriment Event” |
shall have the meaning indicated in
Section 8.03(a). |
|
|
"Disclosed" |
means a
matter that is fully and fairly disclosed with sufficient detail and accuracy (as to its nature, legal purpose and title and
specific amount) so as to enable a reasonable assessment of its impact on Next Metrology. |
"Disclosure
Letter" |
shall
mean the letter in the agreed form dated the same date as this Agreement from the Seller to the Buyer disclosing information
constituting exceptions to the representations and warranties indicated in Sections 6(b) and 7.02 of this Agreement. |
|
|
“Discount” |
shall have the meaning indicated in
Section 8.01(a)(i). |
|
|
“Discount Cap" |
shall have the meaning indicated in
Section 8.01(b)(ii). |
|
|
“Disputed
Matters” |
shall have
the meaning indicated in Section 3.03(b). |
|
|
“Due
Diligence” |
shall have
the meaning indicated in Section 6. |
|
|
“Encumbrance” |
shall mean any mortgage, charge, pledge,
lien, security interest or attachment of any nature whatsoever, note of the Cadastral Office indicating any potential or actual
change in the legal status of a property (in Czech: Plomba), options, right of first refusal, easement (whether registered
or unregistered), title retention, third party rights (including in rem rights) or other securities or de facto
situations attached to a certain object or asset or share and limiting the rights thereupon. “Encumbrances”
shall be construed accordingly. |
|
|
“Environmental Law” |
shall mean all applicable international
treaties, laws, conventions, EU directives or regulations, statutes, regulations, subordinate legislation (in particular any
regional, provincial municipal and other local law and/or regulation), applicable in Italy, which from time to time relate
to Environmental Matters and Environmental Licences and all enforceable orders or other instruments and other requirements
of or issued by any competent public authority, court or agency, concerning the protection of the environment or the prevention,
limitation, mitigation or remediation of harm to the environment or relating to Environmental Matters. |
|
|
“Environmental License”
|
shall mean any permit, licence, authorization,
consent or other approval, registration, notification or communication required by any Environmental Law for
the operations of Next Metrology or of its business or in relation to the ownership, lease, occupation or use of the properties
used for the operations of the Company or of its business. |
|
|
“Environmental Matters” |
shall mean all or any of the following:
air (including all layers of atmosphere), water and land (including, without limitation, any of the foregoing within buildings
and other material or man-made structures above or below the ground) as well as all organic and inorganic matter and living
organisms and the systems supported by or including any of the components of the foregoing; the disposal, spillage, deposit,
escape, discharge, leek, emission or presence of, contact with and exposure of, any person to hazardous materials or Waste,
as well as the creation of any noise, vibration, radiation, nuisance or other adverse impact on the environment, maintenance
of human health and safety, and any other matters relating to the condition, protection, maintenance, restoration or replacement
of the environment or any part of it. “Environmental” shall be interpreted accordingly. |
“Indemnity
Holdback Account” |
shall
have the meaning indicated in Section 11(a). |
|
|
“Indemnity
Holdback Amount” |
shall have
the meaning indicated in Section 11(a). |
|
|
“Exhibit/s” |
shall mean all exhibits, as listed
above in the table of contents. |
|
|
“Financial Debt” |
shall mean all financial debts, inclusive
of any bank debt, invoice discounting facility, loan, borrowing, overdraft, shareholders’ loan, financial (capital)
lease. |
|
|
“Government Debt” |
shall mean the total of all amounts
owed by Next Metrology to various government tax or social security authorities or agencies; including amounts owed under
so called instalment agreements and all other amounts owing that have not yet been formalized into agreements (including interest
and penalties); including both short term and long term amounts owed. |
|
|
“Governmental Authority” |
shall mean any foreign, European Union,
or Czech national, regional or local governmental authority, quasi-governmental authority, court, or any regulatory, administrative
or other agency, or any subdivision, department or branch of any of the foregoing. |
|
|
“Governmental Authorization” |
shall mean any consent, permit, concession,
license, registration, approval, authorization, permit, order, exemption, certificate, franchise, or variance issued, granted,
given, or otherwise made available by or under the authority of any Governmental Authority or pursuant to any applicable law. |
|
|
“Hazardous Substance/s”
|
shall mean any substance which is defined
to be hazardous, dangerous, toxic or harmful under any Environmental Law. |
|
|
“Liable Party” |
shall have the meaning indicated in
Section 8.03(a). |
|
|
“Material” or “Materially” |
|
“material” or “materially” |
shall mean a breach, change or effect
having an impact greater than, or involving more than, Eur 4,000. |
|
|
“Material Adverse Change” |
shall mean any change or effect that
is Material that is materially adverse to the financial situation, financial performance, business, prospects, assets, liabilities,
or value of the net assets of Next Metrology, impacting the value of Next Metrology by greater than Eur 500,000; but excluding
any change or effect arising out of general economic conditions or conditions affecting companies generally in the industry
in which Next Metrology operates. |
“Mills” |
Keith Mills, British
national, born in [ ], on [ ], domiciled at [ ], UK passport no. [ ]. |
|
|
“Mills Share” |
shall have the meaning indicated in
Introduction A. |
|
|
“Mills SPA” |
shall mean the Agreement for the purchase
of the Mills Share by the Buyer dated January 29, 2015. |
|
|
“Muscarella” |
shall have the meaning indicated in
the headings of this Agreement. |
|
|
“Next Metrology” |
Next Metrology s.r.o., a Czech Republic
company duly existing and organized under Czech law, with offices at Štěrboholská 1307/44, 102 00 Prague
10, Czech Republic, Identification No.: 29129273, registered in the commercial register maintained by the Municipal Court
in Prague, Section C, Insert 202085, registered share capital equal to CZK 200,000. |
|
|
“Notice of Claim” |
shall have the meaning indicated in
Section 8.03(a). |
|
|
“Notice of Objection” |
shall have the meaning indicated in
Section 8.03(c)(ii). |
|
|
“Notional Net Working Capital” |
shall mean (i) the sum of all trade
accounts receivable (net of specific allowances for any of these accounts deemed uncollectible), (ii) the sum of all inventory
items (net of specific reserves for items deemed obsolete or Slow Moving Inventory), (iii) prepaid expenses, and (iv)
other current assets (with expected life less than one year), LESS (v) the sum of all accounts payable, expense accruals,
accrued payroll (including vacation and statutory holiday accruals), other current liabilities (including deferred tax liabilities),
and deposits from customers. |
|
|
“OITA” |
shall have the meaning indicated in
Section 2(b). |
|
|
“Parties” |
shall mean the Seller, Next Metrology
and the Buyer. |
|
|
“Party” |
shall mean the Seller, Next Metrology
and the Buyer, when individually and generically referred to. |
|
|
“Permanent Disability” |
shall mean the person’s total
and permanent disability which prevents the person from performing for a continuous period exceeding six months the duties
assigned to the person. |
“Permit” |
shall mean any permits,
consents, approval, resolution, licenses, certificates, notices, filings, lodgments, agreements, directions, declarations,
registrations, notifications, exemptions, variations, renewals, permissions and amendments and other authorizations and approvals
including any conditions thereof required or provided under Czech or other applicable law. |
|
|
“Property” |
means office No. 17 of area of 56,59
m² situated in building “K” on plot no. 1350/2, which is registered in the cadastral area of Hostivař,
municipality of Prague, in title deed No. 139, used by Next Metrology to carry out its business. |
|
|
“Purchase Price” |
shall have the meaning indicated in
Section 3.01(a). |
|
|
“Reference Date” |
shall mean December 31, 2014. |
|
|
“Reference Financial Statements” |
Next Metrology Financial Statements
as of December 31, 2014 as attached to the Agreement as Annex 1. |
|
|
“Relevant Anniversary Date“ |
shall have the meaning indicated in
Section 3.04(b). |
|
|
“Required Consents” |
shall mean a consent by TESLA KARLÍN,
a.s., a company with its registered seat at Prague 10, V Chotejně 9/1307, Zip Code 10200, Czech Republic, ID No.: 452
73 758, with the sublease of the Property by Topmes to Next Metrology under the Sublease Agreement. |
|
|
“Seller” |
shall have the meaning indicated in
the headings of this Agreement. |
|
|
“Service Agreements” |
shall have the meaning indicated in
the Coord3 Agreement. |
|
|
“Share” |
shall have the meaning indicated in
Introduction A. |
|
|
“Slow Moving Inventory” |
shall mean any and all inventory items
that are in excess of 360 days old as of the Completion Date. |
|
|
“Sublease Agreement“ |
shall have the meaning indicated in
Section 13. |
“Tax”
or “Taxes” |
shall mean all (i) Czech
and foreign taxes of any kind, levies or other like assessments, customs, duties, imposts, charges or fees, including, without
limitation, income, gross receipts, ad valorem, value added, excise, real or personal property, asset sales, use, license,
payroll, transaction, capital, net worth and franchise taxes, withholding, employment, social security, utility, severance,
production, unemployment compensation, occupation, premium, windfall profits, transfer and gains taxes, professional, salary
or other governmental, local and municipal taxes imposed or payable to any government or subdivision or agency thereof, and
in each instance such term shall include any interest, penalties or additions to tax attributable to any such Tax; (ii) any
liability for the payment of any amount of a type described in clause (i) arising as a result of being or having been a member
of any consolidated, combined, unitary or other group or being or having been included or required to be included in any return
related thereto; and (iii) any liability for the payment of any amount of a type described in clause (i) or clause (ii) as
a result of any obligation to indemnify or otherwise assume or succeed to the liability of any other person. |
|
|
“Third Party Claim” |
shall mean a claim brought by any third
party against Next Metrology. |
|
|
“Topmes” |
Topmes s.r.o., a company established
under the laws of the Czech Republic, with offices at Štěrboholská 1307/44, Hostivař, 102 00 Prague
10, Company ID: 00541940, registered in the Company Register at Municipal Court of Prague, Section C, File 210793. |
|
|
“Topmes Share” |
shall have the meaning indicated in
Introduction A. |
|
|
“Topmes SPA” |
shall mean the Agreement for the purchase
of the Topmes Share by the Buyer dated January 29, 2015. |
|
|
“Transaction” |
shall have the meaning indicated in
Section 2(a). |
|
|
“Waste” |
shall mean any waste as defined or
regulated by any Environmental Law. |
EXHIBIT 7.01
Buyer’s Representations and
Warranties
| 1. | Good standing – Authority |
(a) The
Buyer is a corporation validly existing, duly incorporated and in good standing under the laws of the State of Michigan, United
States of America.
(b) The
Buyer has full power and authority (including full corporate or other entity power and authority) to execute and deliver this
Agreement and to perform its obligations under this Agreement. The Buyer does not need to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any third party, or need to give any notice to, make any filing with,
or obtain any Governmental Authorization from, any Governmental Authority in order for the it to consummate the transactions contemplated
by this Agreement, other than as otherwise specified in the Agreement.
(c) Neither
the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated by this Agreement shall:
(i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction
of any Governmental Authority, or court to which Buyer is subject; or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require
any notice under any Contract, license, instrument, or other arrangement to which Buyer is a party or by which it is bound or
to which any of its assets is subject.
(d) All
corporate actions taken and which will be taken in connection with the Agreement have been duly authorized by all required corporate
actions and the Buyer has not taken any action that, in any respect, conflicts with, constitutes a default under or results in
any violation of any provision of its articles of association or by-laws.
(e) The
Buyer’s authorized representative has all the necessary corporate powers to enter into this Agreement.
| 2. | No bankruptcy
proceedings |
The Buyer is not insolvent or subject to any insolvency or
pre-insolvency proceeding nor is it a party to or is negotiating any creditors’ arrangement of any kind.
EXHIBIT
7.02
Seller’s representations and warranties
| (a) | Next Metrology has full power and
authority (including full corporate or other entity power and authority) to execute and
deliver this Agreement and to perform its obligations under this Agreement. Next Metrology
and the Seller do not need to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any third party, or need to give any notice to,
make any filing with, or obtain any Governmental Authorization from, any Governmental
Authority, in order for the Parties to consummate the transactions contemplated by this
Agreement. |
| (b) | Non-contravention. Neither the execution
and the delivery of this Agreement, nor the consummation of the transactions contemplated
by this Agreement, shall: (i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority,
or court to which Next Metrology or the Seller are subject; or (ii) conflict with, result
in a breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any notice
under any contract, license, instrument, or other arrangement to which Next Metrology
or the Seller is a party or by which it is bound or to which any of its assets is subject
or result in the imposition of any liability or Encumbrance upon any of its assets or
result in any present or future indebtedness of Next Metrology becoming due and payable
prior to its stated maturity; or (iii) result in the right of any managing director or
employee of Next Metrology to any one-off payment, bonus or commission or to terminate
his employment other than on normal contractual terms as a result of the transactions
contemplated by this Agreement. |
(a) Good
standing - Authority
| (i) | Next Metrology is a limited liability
company, validly existing, duly incorporated and in good standing under the laws of the
Czech Republic. |
| (ii) | No resolution has been passed
or will be passed prior to Completion to approve the winding up of Next Metrology.
|
| (iii) | Next Metrology has all the necessary
powers and authority to own, operate, use, license or lease its assets and to carry on
its business activity as it has been and is currently carried on. |
| (iv) | All corporate actions taken and
which will be taken by Next Metrology in connection with this Agreement have been duly
authorized and the Seller and Next Metrology have not taken any action that, in any respect,
conflicts with, constitutes a default under or results in any violation of any provision
of law or of their articles of association, by-laws or any other internal document.
|
(b) No
insolvency proceedings
| (i) | Neither Next Metrology nor
the Seller is subject to any insolvency proceeding of any kind nor do they satisfy the
requirements for filing any insolvency procedure of any kind, including on the basis
of threatening insolvency (in Czech: hrozící úpadek). No
liquidator, insolvency trustee, bankruptcy receiver, administrator or similar officer
has been appointed in respect of Next Metrology or the Seller. Next Metrology and/or
the Seller have not and, to the best of the Seller’s knowledge, no third party
has taken any action with a view to file for any such insolvency proceeding or to appoint
any such liquidator, insolvency trustee, bankruptcy receiver, administrator or similar
officer. |
| (ii) | No arrangement with any of
Next Metrology or the Seller’s creditors of any kind has been entered into or is
currently being negotiated. |
| (iii) | Neither Next Metrology nor
the Seller has entered into any agreement for the assignment of their assets (or any
part of them) for the benefit of its creditors. |
| (iv) | Neither Next Metrology nor
the Seller has filed any petition for the restructuring of its debt or an insolvency
or similar motion against themselves or Next Metrology. Neither Next Metrology nor the
Seller is aware that an insolvency or similar motion would have been filed against any
one of them in any jurisdiction by any third person. |
| (v) | No resolution has been passed
to dissolve or liquidate Next Metrology. |
| (c) | Licenses, permits, authorizations |
| (i) | Next Metrology has all licences,
permits, authorizations and consents from any person, authority or body which are necessary
to carry on its business. To the best of Seller’s knowledge, Next Metrology has
at all times been in compliance with each Governmental Authorization and Permit. No event
has occurred or circumstance exists that could (with or without notice or lapse of time)
(I) constitute or result, directly or indirectly, in a violation of, or a failure on
the part of Next Metrology to comply with, any Governmental Authorization and Permit,
or (II) result, directly or indirectly, in the revocation, suspension, cancellation,
termination, or modification of any Governmental Authorization and Permit. |
| (ii) | Next Metrology has not received
any notice or other communication (whether oral or written) from any Governmental Authority
or any other person regarding (I) any actual, alleged, or potential violation of, or
failure to comply with, any Governmental Authorization and Permit, or (II) any actual,
proposed, or potential revocation, suspension, cancellation, termination, or modification
of any Governmental Authorization and Permit. |
| (iii) | To the best of Seller’s
knowledge, all other filings required to have been made with respect to such Governmental
Authorizations and Permit have been duly made on a timely basis with the appropriate
Governmental Authorities. |
| (iv) | No violation exists in respect
of any such licences, permits, authorizations and consents and no proceeding is pending
or, to the best of the Seller’s knowledge, threatened against Next Metrology to
revoke or materially limit any such licences, permits, authorizations or consents. |
| 3. | Share
Capital of Next Metrology |
| (i) | The issued and outstanding registered
capital of Next Metrology is that indicated in the headings of the Agreement. The issued
registered capital has been duly authorized, and is fully subscribed and paid. The ownership
interests representing 100% of the registered capital of Next Metrology have been duly
issued. |
| (ii) | Mills is the sole registered,
legal and beneficial owner of an ownership interest representing 25% of the registered
capital of Next Metrology. |
| (iii) | Next Metrology’s ownership
interest owned by Mills is free and clear from any Encumbrances. |
| (iv) | No resolution has been passed
to approve any increase or decrease of the registered capital of Next Metrology, no contribution
outside the registered capital (in Czech: příplatek) of Next Metrology
has been made, and there are no outstanding options, warrants, agreements, conversion
rights, pre-emption rights or other rights to subscribe for, purchase or otherwise acquire
the Share or any further ownership interests of Next Metrology. |
| (v) | Next Metrology has issued no bonds
or other securities. |
| (vi) | No advance payment of dividends
or any other distribution of any future dividends has been approved or made. |
| (vii) | No person is a shadow managing
director of Next Metrology and no other person than the Seller, Muscarella and Topmes
exercises decisive influence or control over Next Metrology. |
| 4. | Title
to the Target Business |
All of Next Metrology’s
assets are free and clear of any Encumbrances and there are no outstanding options, warrants, agreements, pre-emption rights or
other rights to purchase or otherwise acquire Next Metrology, any portion thereof or any of its assets.
| (a) | A list of all the bank accounts of
Next Metrology with the identification of all persons with access to such accounts (whether
having right to dispose of funds or not) are indicated in Annex 5(a). |
| (b) | The Completion Date Net Working Capital
is equal to or greater than a negative Eur 30,000 (thirty thousand). |
| (c) | Upon the Completion Date, Next Metrology’s
Debt is not greater than Eur 50,000 (fifty thousand). |
The accounts receivable of Next
Metrology, after taking into account any applicable reserve for returns, claims and bad debts shown in Annex 6, are existing,
valid and legitimate and collectable.
| (i) | Next Metrology carries out and
operates its business in the Property only and it does not own, lease or otherwise use
or occupy any other real estate property (and Next Metrology upon Completion will carry
out and operate its business in the Property only and will not own, lease or otherwise
use or occupy any other real estate property). |
| (ii) | Next Metrology is entitled to
use the Property, with no restriction whatsoever, on the basis of the lease agreement
whose lessor, amount of the rent, date of execution, expiration date are indicated in
Annex 7(ii). Next Metrology has duly and timely fulfilled all obligations arising from
such lease agreement. The lessor is not entitled to terminate or withdraw from the lease
agreement referred to above as a consequence of the consummation of the Transaction. |
| 8. | Fixed
tangible assets (other than real estate properties) |
| (i) | Next Metrology has good title to
and legal and beneficial ownership of the assets listed in Annex 8(a)(i). |
| (ii) | The assets listed in Annex 8(a)(i)
are free and clear of any Encumbrances. |
Next
Metrology is not a party to any capital lease agreement (leasing) except for those listed in Annex 8(b).
Next
Metrology has no operating lease agreements in place for any asset, except for the assets listed in Exhibit 8(c).
| (i) | Annex 8(a)(i) is a complete and
accurate list of all assets owned and used (as the case may be) by Next Metrology.
|
| (ii) | To the best of Seller’s
knowledge, all assets owned or however used Next Metrology comply with all laws and regulations. |
| (i) | Next Metrology has all rights (including
the right to exercise economic rights) and has been provided by all its employees, contractors
and other authors with consents allowing interference with moral rights to the maximum
extent permitted by applicable law in connection with all works protected by copyright
and copyright neighboring rights (including any and all literary, artistic, science,
musical, graphic, photography, software and copyright database works) as listed and described
in Annex 9.(i) and is the sole legal and beneficial owner of the trademarks, trademark
applications, industrial designs, industrial design applications, manufacturing and trade
secrets, inventions, patents, patent applications, technology, know how, and databases,
listed and described in Annex 9.(i) (“Intellectual Property”). Next
Metrology owns no intellectual property other than that listed in Annex 9(i). |
| (ii) | The Intellectual Property is free
and clear from any Encumbrances. |
| (iii) | The Intellectual Property is
used in good faith. |
| (iv) | None of the items and assets of
the Intellectual Property, or any of its part, is licensed to third parties or is part
of a branch of a business as a going concern which is leased to third parties or has
been assigned to third parties or on which a third party is entitled to the usufruct,
except for the licences indicated in Annex 9(iv). |
| (v) | All fees, taxes and duties for
all the registrations and maintenance of all Intellectual Property have been duly and
timely paid by Next Metrology. |
| (vi) | To the best of the Seller’s
knowledge, the Intellectual Property does not infringe any third party rights. |
| (vii) | There are no proceedings (including
opposition proceedings before any authority or challenges) concerning the Intellectual
Property which are pending or, to the best of the Seller’s knowledge, threatened,
and Next Metrology has not entered into nor is it negotiating any settlement agreements
regarding the Intellectual Property. Next Metrology is not obligated to pay any royalty,
license fee, charge or other amount with regard to any Intellectual Property. |
| (viii) | The Seller is not aware of any
actual or potential infringements of the Intellectual Property by any third party.
|
| (ix) | No director, officer, shareholder,
employee, consultant, contractor, agent or other representative of Next Metrology owns
or claims any rights in (nor has any of them made application for) any Intellectual Property.
|
| (x) | Each software used by Next Metrology
has been and is duly licensed to it and all relevant considerations for such licences
have been duly and timely paid by Next Metrology. |
| (xi) | Next Metrology has included a
copyright notice on any product that embodies a copyright owned by Next Metrology.
|
| (xii) | To the best of the Seller’s
knowledge, Next Metrology’s software do not contain viruses, worms, trojan horses,
time bombs, backdoor access or any other adware, malware or spyware that could be used
to interfere with the functionality of such software. |
| (xiii) | No Person has (or had) a copy
of, or has (or had) the right to access now or at some time in the future, any source
code for material Software; and there are no agreements under which Next Metrology has
placed or is required to place into escrow any such source code. |
| (xiv) | No Intellectual Property was
developed by Next Metrology using (in whole or in part) government funding or facilities
nor was it obtained from any Governmental Authority. |
| (xv) | No Person other than the Seller
has ownership of or rights to any Intellectual Property, excluding such Intellectual
Property that is the subject of a licence. |
| (xvi) | Next Metrology has taken all
reasonable actions to protect its trade secrets included in the Intellectual Property
from unauthorized use or disclosure, and to maintain such trade secrets in confidence. |
| (xvii) | The source code for all material
software is in a form that a programmer of ordinary skill in the applicable programming
language(s) is able to print, display, and read. |
| (xviii) | None of the software owned
by, or developed by or for the benefit of, Next Metrology contains or requires use of
any “open source” code, shareware or other software that does or may require
disclosure or licensing of any such software or any other Intellectual Property owned
by Next Metrology. |
| (xix) | All Intellectual Property (or
any information and documents containing or materially relating to the Intellectual Property)
is in a form that a person skilled in the relevant art is able to use such Intellectual
Property in any manner permitted by applicable law and print, display and read such information
or documents. |
| (xx) | Next Metrology has all rights
to the domain names listed and described in Annex 9(i) (the “Domain Names”).
The Domain Names were registered and are used in good faith, are free from any Encumbrances
and all fees, taxes, duties for all the registrations and maintenance of the Domain Names
have been duly and timely paid. The Domain Names do not infringe on any third party rights
(including any third party trademarks or trade names) and Next Metrology is not aware
of any actual or potential infringements arising in connection with the Domain Names.
There are no proceedings (including arbitration) concerning the domain names before any
authority which are pending, or to the best of the Seller´s knowledge, threatened,
and Next Metrology has not entered into nor is it negotiating any settlement agreements
regarding the domain names. Next Metrology does not allow any third party access to any
of the domain names. |
As of the date this representation
is made, Next Metrology’s Debt and accounts payable are as indicated in Annex 10, plus accounts payable incurred after the
date hereof in the ordinary course of business consistent with the past practice.
| 11. | Guarantees
and securities |
| (i) | No guarantees or patronage letters
or other securities have been granted or created by third parties (including the Seller)
for the benefit of Next Metrology. |
| (ii) | Next Metrology has issued or granted
no guarantees or patronage letters and/or created securities in favor of any third party
including the Seller. |
| (iii) | There are no off balance-sheet
items in the books and records of Next Metrology. |
| (i) | All books and records of Next Metrology
(including all tax books) have been fully, properly and accurately kept and completed
in accordance with all applicable laws and the Agreed Accounting Principles and fairly
reflect, in reasonable detail, the transactions, the financial position and the assets
and liabilities of Next Metrology. All of such books and records are under the direct
control of Next Metrology and have been kept for the duration prescribed by the applicable
civil and tax laws and regulations. |
| (ii) | The records of the resolutions
of managing directors and the shareholders of Next Metrology are accurate and accurately
reflect all actions taken and all resolutions passed by managing directors and the shareholders
of Next Metrology. |
There are no claims, actions,
suits, proceedings or investigations pending or threatened in writing or, to the best knowledge of the Seller, threatened other
than in writing, before any court or governmental or regulatory or administrative authority, domestic or foreign, or before any
arbitrator of any nature to which Next Metrology is a party other than those indicate in Annex 13(i). To the best of the Seller’s
knowledge, no facts or circumstances exist which may give rise to any such claims, actions, suits, proceedings or investigations.
| 14. | Employment
matters - Agents |
| (i) | Annex 14(i) lists the employees
of Next Metrology with their name and employment position. There are no accrued deferred
salary / severance payment and other statutory monetary accrued entitlements due to such
employees. The information contained in Annex 14(i) is true, accurate and complete as
of the date hereof. |
| (ii) | Next Metrology has no employees
other than the employees listed in Annex 14(i). No person other than the employees listed
in Annex 14(i) may legitimately claim that he/she has a subordinate employment relationship
with Next Metrology. |
| (iii) | No litigation, whether pending
or threatened in writing or, to the best knowledge of the Seller, threatened but not
in writing, exists between Next Metrology and any employee who is presently on its payroll
as well as any former employee. |
| (iv) | Next Metrology is not in breach
of any obligation to pay to any of its employees any wages, salaries, commissions, bonuses,
benefits or other direct or indirect compensation for any services performed to the date
hereof or amount required to be reimbursed to such employees, nor is it in breach of
any other obligation arising from the employment agreements with their employees. |
| (v) | To the best of the Seller’s
knowledge, Next Metrology has complied with all employment, health insurance and social
security applicable laws and regulations and collective bargaining agreements (including
those executed with local/plant unions, if any) governing employment, as well as with
all employment practices, terms and conditions of employment, wages, hours and benefits,
including any provision relating to health and safety. |
| (vi) | Up to the date hereof no employee
of Next Metrology has actually performed or actually performs tasks which are not substantially
corresponding to those prescribed by the relevant provisions of his/her individual employment
agreement. |
| (vii) | There is no strike, slowdown
or stoppage actually pending or threatened in writing or, to the best knowledge of the
Seller, threatened but not in writing, against or involving Next Metrology. |
| (viii) | There is no employee bonus,
stock option, incentive, deferred compensation, retiree medical or life insurance, supplemental
retirement, pension or severance plans (i) to which Next Metrology is a party or (ii)
which are maintained, contributed to or sponsored by Next Metrology for the benefit of
the employees, other than those provided for by the law. |
| (ix) | Up to the date hereof the total
accrued deferred salary / severance indemnity of each employee of Next Metrology has
been calculated and accrued according to the applicable laws and/or other applicable
contractual provisions. |
| (x) | Next Metrology has: (1) paid to
the competent authorities all compulsory social welfare, social security and health insurance
funds and provided to such authorities any requested document concerning the same; (2)
fully paid all contributions (including interest, penalties and taxes, if applicable)
concerning wages paid or due; and (3) withheld and paid to the competent authorities
the total contributions and taxes to be withheld from the paid wages. |
| (xi) | No employee of Next Metrology
is entitled to receive any payment of any nature whatsoever as a consequence of the execution
of this Agreement and/or of the Completion as contemplated by this Agreement. |
| (xiv) | Next Metrology has not made any
loan to any of its employees. |
| (xv) | Next Metrology has no workers
on a project basis. |
| (xvi) | Next Metrology has no fixed term
employees. |
| (xvii) | Next Metrology has no self-employed
workers. |
| (xviii) | Next Metrology has duly and
timely fulfilled all of its tax, social security and health insurance obligations in
relation to the current and past managing directors. |
| (xix) | Next Metrology has no commercial
agents. |
| (xx) | Next Metrology has no collective
bargaining agreements. |
| 15. | Compliance
with the law – Regulatory compliance |
| (i) | To the best of the Seller’s
knowledge, the operations of Next Metrology have been conducted, in all material respects,
in compliance with all permits, applicable laws, regulations, orders and other requirements
of all courts and other governmental or regulatory authorities having jurisdiction over
Next Metrology, including any such laws, regulations, orders or other requirements relating
to product safety, accident prevention, export control, money laundering, anti-corruption,
international sales and business ethics and health and safety on the work place. |
| (ii) | Next Metrology has not received
a notification of any violation of any such law, regulation, order or requirement, or,
to the best of the Seller’s knowledge, are in default with respect to any order,
writ, judgment, award, injunction or decree of any court or governmental or regulatory
authority or arbitrator applicable to Next Metrology, or any of its assets, properties
or operations. |
| (iii) | To the best of the Seller’s
knowledge, nor Next Metrology, none of its directors, officers or employees has committed
any act or omission which may have caused any damage to any public authority or entity. |
| (i) | Annex 16(i) lists all contracts
to which Next Metrology is a party. |
| (ii) | In relation to the customers’
or suppliers’ contracts of which Next Metrology is a party, none of the customers
or suppliers (as the case may be) is entitled to terminate or withdraw from the relevant
contracts referred to in this paragraph (i) as a consequence of the sale of the Shares
to the Buyer. |
| (iii) | Next Metrology has duly and timely
fulfilled in all material respects all of the obligations arising from all of the contracts
referred to in paragraph 17(i) above. |
| (iv) | With respect to each contract
entered into by Next Metrology: (A) the contract is legal, valid, binding, enforceable,
and in full force and effect (or, as the case may be in relation to past agreement expired
or terminated, were legal, valid, binding and enforceable) against Next Metrology and,
to the best of the Seller’s knowledge, the other parties thereto; (B) the contract
shall continue to be legal, valid, binding, enforceable, and in full force and effect
on identical terms following the consummation of the transactions contemplated by this
Agreement; (C) Next Metrology and, to the best of the Seller’s knowledge, no other
party is in breach or default, and, to the best of the Seller’s knowledge, no event
has occurred that with notice or lapse of time would constitute a breach or default,
or permit termination, modification, or acceleration, under such contract; (D) no party
has repudiated any provision of such contract, served a notice of termination of such
contract or indicated an intent to terminate such contract; (E) there is no renegotiation
of, attempt to renegotiate, or outstanding rights to renegotiate any such contracts with
any person, and no person has made written demand for such renegotiation; (F) no party
is entitled to withdraw from any contract without cause or as a consequence of the consummation
of the Transaction; (G) to the best of the Seller’s knowledge all contracts to
which Next Metrology is a party and which should have been awarded through a public tender
process have been awarded in compliance with applicable laws and regulations. |
| (v) | Since January 1, 2013, no supplier
of Next Metrology has indicated that it shall stop, or materially decrease the rate of,
supplying materials, products or services to Next Metrology or initiated or threatened
litigation as a result of a dispute nor has Next Metrology refused to pay any such supplier
due to quality, timeliness or other issues. |
| (vi) | Since January 1, 2013, no customer
has indicated that it stop, or materially decrease the rate of, purchasing products or
services from Next Metrology, refused to pay due to quality, timeliness or other issues
or initiated or threatened litigation as a result of a dispute. None of Next Metrology’s
agreements with its customers contain provisions which permit the customer to terminate
their arrangement with Next Metrology as a result of the consummation of the transactions
contemplated hereby. |
| 17. | Product
Liability and product warranty |
| (i) | No product liability claims
are pending against Next Metrology. |
| (ii) | Next Metrology has not received
any order from any governmental authority to recall any of the products manufactured
and delivered. No event has occurred or circumstance exists that (with or without notice
or lapse of time) could result in any such liability or recall. Annex 17(ii) sets forth
all product liability claims of Next Metrology settled during the past two (2) years.
|
| (iii) | Attached as Annex 17(iii)
is a copy of the form of each product warranty issued by Next Metrology that is still
in effect. Each product manufactured, repaired, sold, leased, or delivered by Next Metrology
has been in conformity with all applicable contractual commitments and all express and
implied warranties, and Next Metrology has no liability (and, to the best of Seller’s
knowledge, there is no basis for any present or future action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand against it giving rise to any liability)
for replacement or repair thereof or other damages in connection therewith. No product
manufactured, repaired, sold, leased, or delivered by Next Metrology is subject to any
guaranty, warranty, or other indemnity beyond the applicable standard terms and conditions
of sale or lease. |
| (i) | Next Metrology complied with
all obligations in respect of Tax. |
| (ii) | All tax returns, reports or
other filings that are required to be filed by Next Metrology on or before the date this
representation is being made with any tax, social security or health insurance authorities
have been duly and timely filed. Such tax returns, reports or other filings fully reflect
the tax, social security and health insurance liabilities of Next Metrology, at the time
of the filing, for the relevant tax period. Next Metrology currently is not the beneficiary
of any extension of time within which to file any Tax Return. No claim has ever been
made by an authority in a jurisdiction where Next Metrology does not file Tax Returns
that it is or may be subject to taxation by that jurisdiction. There are no liens for
Taxes (other than Taxes not yet due and payable) upon the Target Business. |
| (iii) | All Taxes of Next Metrology:
(i) payable on or before the date this representation is made; or (ii) that are attributable
to any relevant period up to the date hereof, but are not yet due and payable as of the
date this representation is made, in each case have been timely and duly paid or appropriate
provisions have been made therefore in Next Metrology’s books and records. |
| (iv) | No claim for assessment or
collection of Taxes has been asserted against Next Metrology and there are no such claims
threatened in writing or, to the best of the Seller’s knowledge, threatened other
than in writing, against Next Metrology. Neither Next Metrology nor the other Seller
nor any director or officer (or employee responsible for Tax matters) of Next Metrology
expects any Governmental Authority to assess any additional Taxes for any period for
which Tax Returns have been filed. |
| (v) | Next Metrology has withheld
from its employees, independent contractors, creditors, shareholders and third parties
and timely paid to the appropriate Governmental Authority proper and accurate amounts
in all respects required to have been withheld or paid over for all periods ending on
or before the Completion Date in compliance with all Tax withholding and remitting provisions
of applicable laws and have complied in all respects with all Tax information reporting
provisions of all applicable laws. |
| (vi) | Next Metrology has not received
any written or oral notice that it is in violation (or with notice will be in violation)
of any applicable law relating to the payment or withholding of Taxes. |
| (vii) | Next Metrology has not received
any notice of a proposed Tax, social security, or health insurance inspection or any
other administrative proceeding or court proceeding nor are any of the foregoing pending
or threatened in writing, or to the best of the Seller’s knowledge, threatened
but not in writing with regard to any Taxes or Tax Returns. |
| (viii) | Next Metrology is a party
to no dispute with any tax authority in relation to any Tax. |
| (ix) | Annex 18 sets forth Next Metrology’s
open tax audit years. |
Next Metrology
has never received nor benefitted from any public grants.
| 20. | Privacy
and personal data protection |
| (i) | To the best of the Seller’s
knowledge, Next Metrology has complied with all laws and regulations governing the protection
of privacy and personal data. |
| (ii) | To the best of the Seller’s
knowledge, the consummation of the Transaction will not violate any privacy policy, information
security policy, terms of use, customer agreements or any applicable laws or regulations
relating to the use, storage, treatment, dissemination or transfer of any personal data
or information or confidential information of a third party. |
| 21. | Loans
to or by the Seller |
There is no outstanding indebtedness
or other liability (actual or contingent) owed by Next Metrology to the Seller, his Affiliates or to any director, officer, or
employee of Next Metrology or any person related to a director, officer, or employee as aforesaid, nor is there any indebtedness
owed to Next Metrology by any such person.
| 22. | Equity
Interests; Branches |
| (i) | No interest in any legal entity
is owned (whether directly or indirectly) by Next Metrology nor is Next Metrology a member
of any partnership, joint venture, consortium or other incorporated or unincorporated
association. |
| (ii) | Next Metrology has no branch,
center of main interests, place of business or establishment outside of the Czech Republic.
|
| 23. | Information
Technology |
| (i) | Next Metrology has an information
technology system (i.e. personal computers, network, servers and connected devices and
software, hereinafter “IT System”) fully functioning and suitable
to operate its business in an efficient manner. |
| (ii) | The IT System is suitable
and works properly for the purpose of supporting the management of Next Metrology’s
business and allowing all its employees to carry out their intended tasks and duties,
including, but not limited to, keeping the accounts and storing all relevant information. |
| (iv) | Next Metrology has acquired
full title to and ownership of, or a legitimate right to use, any and all third party
software and/or intellectual property used in the IT System. |
| (v) | To the best knowledge of the
Seller, the use of the software and intellectual property relating to the IT Systems
and use of the IT System itself does not infringe any third party right or statutory
provision. |
| (vii) | Next Metrology has devised
and implemented with the utmost care specific procedures aimed at protecting the IT System
from viruses and any other harm and preserving the security of its IT System, data and
intellectual property. |
| (viii) | Next Metrology has taken
all reasonable steps to safeguard the IT System utilized in the operation of its business,
including the implementation of procedures to ensure that such information technology
systems are free from any disabling codes or instructions, timer, copy protection device,
clock, counter or other limiting design or routing and any "back door," "time
bomb," "Trojan horse," "worm," "drop dead device,"
"virus," or other software routines or hardware components that in each case
permit unauthorized access or the unauthorized disablement or unauthorized erasure of
data or other software by a third party, and to date there have been no successful unauthorized
intrusions or breaches of the security of the information technology systems. |
| (ix) | The consummation of the Transaction
(or any part thereof) will not disrupt or discontinue the operation and functionality
of the IT System. |
Since the Reference Date,
the business of Next Metrology has been conducted in accordance with Section 5.01(a) of the Agreement and of all applicable laws.
Since the Reference Date, Next Metrology has taken none of the following actions:
| (xxvii) | sale or disposal of any
assets; |
| (xxviii) | granting of any rights
(including in rem securities) in respect of any of Next Metrology’s assets
or the charging of any of said assets with any Encumbrances; |
| (xxix) | decisions to incur any indebtedness
or to borrow any money (except within the limits of the facilities currently available
to Next Metrology as disclosed in writing to the Buyer), or to enter into any factoring
or invoice discount agreement; |
| (xxx) | extension of the terms of
payment of any payables or other liabilities or of any receivables, or discount any receivables;
|
| (xxxi) | transactions (including
share capital increase or decrease) which affect the share capital of Next Metrology;
|
| (xxxii) | the granting of any rights
(including in rem security rights) on any of the shares of Next Metrology or any further
share to be issued by Next Metrology and issuance of any bond or other securities;
|
| (xxxiii) | decisions to undertake
any capital commitment (purchase or financial / capital lease of fixed or other assets);
|
| (xxxiv) | decisions to enter into
any partnership, consortium, association, joint venture agreements; |
| (xxxv) | change of the remuneration
of any of the employees, other than increases required by the law or by the applicable
collective bargaining agreements; |
| (xxxvi) | recruitment of any new
registered managing director or key manager; |
| (xxxvii) | any redundancy plan; |
| (xxxviii) | acquisition or disposal
of equity interests in other entities or of businesses as going concerns or any branches
thereof; |
| (xxxix) | agreements with customers
or suppliers (including purchase orders) (aa) which have each a value greater than EUR
30,000 as to customers contracts and EUR 30,000 as to suppliers, or (bb) whereby the
counterpart may withdraw or terminate without cause, or (cc) whereby the counterpart
may withdraw or terminate for change of control, or (dd) which provide for restrictions
to the freedom to operate in the market, or (ee) whereby Next Metrology must give unusual
warranties or guarantees, or (ff) which contemplate unusual payment terms if compared
with standard market practice; |
| (xl) | agreements with related parties
(including shareholders, directors or employees of Next Metrology or relatives of the
shareholders or of the directors or employees); |
| (xli) | change in accounting methods,
policies or procedures or presentations of accounts; declaration and distribution of
dividends or capital funds; |
| (xlii) | settlements of disputes; |
| (xliii) | guarantees to secure the
obligations of a third party; |
| (xliv) | liquidation; dissolution;
mergers, de-mergers and restructurings; |
| (xlvi) | permitting the lapse or
forfeiture of intellectual property rights or other intangible assets; |
| (xlvii) | fail to file any tax returns
or any other report to any authority as required under the law or any contract by its
applicable due date or fail to pay any taxes, as and when they first became due and payable; |
| (xlviii) | negotiation for the settlement
or compromise, or settlements or compromise, of any tax liability; |
| (xlix) | payment of dividends or
distributions; |
| (l) | termination of any material
agreement; |
| (li) | enter into or amend any agreement,
except for acceptance or placement of purchase orders in the ordinary course of business. |
| 25. | Material
Adverse Change |
No Material Adverse Change in
Next Metrology has occurred between the Reference Date and the date this representation is made.
The Seller has entered into
negotiations with the Buyer in relation to the Transaction and have entered into this Agreement without using the services of
any broker, other than Delta Metrology which will be paid a deal consummation fee directly by the Buyer.
| 27. | Foreign
Corrupt Practices Act and International Trade Sanctions |
Neither Next Metrology, nor
the Seller acting on its behalf, nor any of their respective directors, officers, agents, employees or any other persons acting
on behalf of Next Metrology has, in connection with the operation of Next Metrology, (i) used any corporate or other funds for
unlawful contributions, payments, gifts or entertainment, or made any unlawful expenditures relating to political activity, to
government officials, candidates or members of political parties or organizations, or established or maintained any unlawful or
unrecorded funds in violation of Section 104 of the Foreign Corrupt Practices Act of 1977, as amended, or any other similar applicable
law, (ii) paid, accepted or received any unlawful contributions, payments, expenditures or gifts, or (iii) violated or operated
in noncompliance with any export restrictions, anti-boycott regulations, embargo regulations or other similar applicable law,
or (iv) violated or operated in noncompliance with No. 253/2008 Coll., on certain measures against legalization of proceeds of
crime and terrorist financing, as amended.
| 28. | Affiliate
Transactions |
| (a) | Except as set forth in Annex 28, none
of the Seller, his Affiliates, and his relatives, and to the best of the Seller’s
knowledge, Next Metrology, its directors, officers, employees or shareholders, are a
party to, or the beneficiary of, any contract or material transaction relating to Next
Metrology, including any contract providing for any loans, advances, the employment of,
furnishing of services by, rental of assets from or to, or otherwise requiring payments
to or from, any such persons. |
| (b) | All the transactions and contracts
set forth in Annex 28 were performed under the terms and conditions usual at the time
and place and in accordance with the legal rules and regulations (including corporate,
accounting and Tax regulations). All the costs and expenses expended by Next Metrology
within the transactions set forth in Annex 28 are Tax deductible, save for those expressly
excluded from the Tax-deductible costs in the Tax returns filed prior to the date of
this Agreement (this does not apply to the costs or expenses considered as not Tax deductible
in future as a result of changes in the Tax regulations). |
Except as set forth on Annex
29, Next Metrology has never conducted any business or other operations other than the current business of developing software
and applications used in connection with CMMs (the “Current Business”) and Next Metrology has no liabilities
or obligations, known, unknown, contingent or otherwise, arising from previously disposed of or discontinued operations, or that
are not related to or did not arise from the operation of the Current Business.
Exhibit 10.4
|
DATE |
January 29, 2015 |
|
|
|
|
|
|
Topmes s.r.o. |
(1) |
|
|
|
|
|
|
and |
|
|
|
|
|
|
|
Perceptron, Inc. |
(2) |
|
Share Purchase Agreement
Next Metrology Software s.r.o.
TABLE OF CONTENTS
SECTIONS |
|
|
|
|
|
Section 1 |
Introduction and Exhibits – Interpretation – Certain definitions |
3 |
|
|
|
Section 2 |
Sale and purchase of the Share |
4 |
|
|
|
Section 3 |
Purchase Price |
5 |
|
|
|
Section 4 |
Completion – Conditions to Completion |
5 |
|
|
|
Section 5 |
Pre-Completion Date Covenants |
8 |
|
|
|
Section 6 |
Due Diligence |
11 |
|
|
|
Section 7 |
Representations and warranties |
11 |
|
|
|
Section 8 |
Indemnification |
12 |
|
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|
Section 9 |
Restrictive Covenants |
13 |
|
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|
Section 10 |
Property |
14 |
|
|
|
Section 11 |
Termination |
14 |
|
|
|
Section 12 |
Miscellaneous |
15 |
|
|
|
Section 13 |
Governing Law - Arbitration |
17 |
LIST OF THE EXHIBITS |
|
|
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|
|
Exhibit 1.03: |
|
Certain definitions |
|
|
|
Appendix A: |
|
Agreed Accounting Principles |
|
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|
Exhibit 4.02(a)(i)(gg): |
|
Seller Release |
|
|
|
Exhibit 4.02(a)(i)(nn): |
|
Waiver of the Right of First Refusal |
|
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Exhibit 7.01: |
|
Buyer’s representations and warranties |
|
|
|
Exhibit 7.02: |
|
Seller’s representations and warranties
|
|
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|
Exhibit 10 |
|
Sublease Agreement |
|
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|
LIST OF THE EXHIBITS |
|
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|
|
Annex 1 |
|
Disclosed Documents |
agreement
This agreement (the “Agreement”) is entered
into on January 29, 2015
by and amongst
| (1) | Topmes s.r.o., a company established under the laws of the Czech Republic, with offices
at Štěrboholská 1307/44, Hostivař, 102 00 Prague 10, Company ID: 00541940, registered in the Company Register
at Municipal Court of Prague, Section C, File 210793, for the purposes of this agreement represented by Martin Prokop, in his capacity
as managing director (“Topmes” or the “Seller”) |
and
| (2) | Perceptron, Inc., a company established under the laws of the State of Michigan, with offices
at 47827 Halyard Drive, Plymouth, MI 48170, State of Michigan Id No. 272233, for the purposes of this agreement represented by
Margaret Mary Kaczmarek Nelson, in her capacity as Vice President, Human Resources (“Buyer”), |
(the Seller and the Buyer when jointly
referred to “Parties” and each of them when generically and individually referred to “Party”)
INTRODUCTION
| A. | The Seller owns 50% share in Next Metrology. Next Metrology's registered capital as of the date
hereof is CZK 200,000 (in words: two hundred thousand Czech crowns) and is divided into the following three ownership interests
representing 100% of the participation and shareholding rights in Next Metrology: |
| (i) | Muscarella: ownership interest of total par value of CZK 50,000, representing 25% of Next Metrology’s
registered capital (the “Muscarella Share”); |
| (ii) | Mills: ownership interest of total par value of CZK 50,000, representing 25% of Next Metrology’s
registered capital (the “Mills Share”); |
| (iii) | Topmes: ownership interest of total par value of CZK 100,000, representing 50% of Next Metrology’s
registered capital (the "Share"). |
| B. | The Buyer is a non-contact vision and metrology company with a long established experience
in laser-based technology and applications. |
| C. | The Buyer is interested in acquiring the Share from the Seller, upon the terms and conditions set
forth in this Agreement. |
| D. | The Seller declared that it is interested and willing to transfer and to cause the transfer of
the Share to the Buyer, upon the terms and conditions set forth in this Agreement. |
| E. | The Buyer is interested in acquiring only 100% participation in Next Metrology, i.e., acquiring
the Share together with the Mills Share and the Muscarella Share. |
Now therefore,
the Parties agree as follows:
SECTION 1
Introduction and Exhibits - Interpretation
– Certain definitions
1.01 Introduction, Exhibits, Appendices
and Annexes
The Introduction, the Exhibits, the Appendices
and Annexes form an integral and essential part of this Agreement, as amended from time to time as provided in Section 12.02(b).
1.02 Interpretation
| (a) | In this Agreement, unless the context otherwise requires: |
(i) reference
to “this Agreement” shall include its Introduction, all of its Exhibits, Appendices and Annexes;
(ii) the
term “person” includes individuals, firms, companies, corporations, unincorporated associations, governments, public
agencies as well as any association or partnership or joint venture (whether or not having a separate full legal capacity).
| (c) | Any reference to a statute, statutory provision or subordinate legislation shall be construed as
referring to that statute, statutory provision or subordinate legislation as amended, modified, consolidated, re-enacted or replaced
and in force from time to time, whether before or after the date of this Agreement and shall also be construed as referring to
any previous statute, statutory provision or subordinate legislation amended, modified, consolidated, re-enacted or replaced by
such statute, statutory provision or subordinate legislation. |
| (d) | References to any Czech statutory provision or Czech legal term for any action, remedy, method
of judicial proceeding, document, legal status, court, official or any other legal concept or thing shall, in respect of anybody
corporate incorporated in any jurisdiction other than the Czech Republic, be deemed to refer to and include any equivalent or analogous
action, remedy, method of judicial proceeding, document, legal status, court, official or other legal concept or thing or what
most nearly approximates in that jurisdiction to the Czech statutory provision or Czech legal term. |
| (e) | The schedules to this Agreement shall for all purposes form part of this Agreement. |
| (f) | Any phrase introduced by the terms "including", "include", "in particular"
or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. |
| (g) | Notwithstanding that this Agreement is set forth in the English language only, where in this Agreement
a Czech term is given in italics and/or in brackets after an English term or vice versa, the relevant provision relates to circumstances
governed by the respective Czech law and if there is any inconsistency between the Czech term and the English term, the meaning
of the respective Czech term shall prevail. |
1.03 Certain definitions
In addition to terms elsewhere defined
in this Agreement and unless otherwise provided herein, the terms and expressions listed in Exhibit 1.03 shall have the meanings
indicated therein and grammatical variations of such terms shall have corresponding meanings.
SECTION
2
Sale and purchase of the Share
| (a) | Upon the terms and subject to the conditions set forth in this Agreement, the Seller agrees to
sell the Share to the Buyer, and the Buyer agrees to buy the Share, on the Completion Date. |
| (b) | On the Completion Date, the Seller and the Buyer shall enter into and execute an Ownership Interest
Purchase Agreement (the “OITA”) by which Seller shall transfer to the Buyer the Share. The Parties agree that
the OITA shall be subject to this Agreement and therefore, they shall not make any claim however relating to the sale of the Share
otherwise than under this Agreement. |
| (c) | Upon fulfillment of all other formalities as required by Section 4.02 and fulfillment (or waiver)
of all the conditions provided for in Section 4.03, the Buyer shall acquire full title to and ownership of the Share, free and
clear of any Encumbrance, together with all rights attached thereto. The Parties agree that the Buyer shall benefit from all the
economic effects of the sale of the Share as contemplated by this Agreement as from the Completion Date. |
| (d) | For the avoidance of any doubt, the Parties confirm that together with the Share and under the
OITA, the Seller shall transfer to the Buyer any and all rights to the contribution outside the registered capital of Next Metrology
provided by the Seller to Next Metrology based on the Agreement on Additional Capital Contribution contemplated in Section 4.02(a)(i)(aa)(v). |
| (e) | The Parties further acknowledge that the Buyer shall be entitled to appoint a third party legal
entity directly or indirectly controlled by, controlling or under common control with the Buyer which will acquire the Share. Should
the Buyer wish to appoint and, pursuant to Section 12.03, assign its rights and obligations under this Agreement to, such third
party legal entity, it may do so up to the Completion Date, and the Seller undertakes to provide consent with such assignment,
while such consent may not be unreasonably withheld or delayed. In any event, the Buyer will remain jointly liable together with
such third party for the performance of the obligations arising from this Agreement. |
SECTION 3
Purchase Price
3.01 Purchase Price
The Parties agree that the purchase price
shall be paid by the Buyer to the Seller upon Completion in consideration of the transfer to the Buyer of full title to and ownership
of the Share, free and clear of any Encumbrances, shall be equal to EUR 500,000 (five hundred thousand) (the “Purchase
Price”).
3.02 Payment of the Purchase Price
| (a) | The payment of the Purchase Price to be paid in cash shall be made by the Buyer to the Seller by
bank wire transfers to following Seller’s bank account: |
[ ].
| (b) | The Purchase Price shall be paid to the Seller’s bank account as indicated in paragraph (a)
above upon the execution of the OITA. |
| (c) | No interest shall accrue on any of the amounts to be paid by either Party pursuant to paragraph
(b) above, if timely paid. |
| (d) | For the avoidance of any doubt, the Parties agree that once the amount corresponding to the Purchase
Price be credited to Seller’s bank account, the Buyer shall have discharged its obligation to pay the Purchase Price in full. |
SECTION 4
Completion – Conditions to Completion
4.01 Completion Date
| (a) | Completion shall occur on January 29, 2015 or any other date as agreed between the Parties, subject
to the conditions to Completion indicated in Section 4.03 being satisfied or waived by the interested Parties in writing on or
before the Completion Date. |
| (b) | The Completion session and the execution of the OITA shall take place at the office of Squire Patton
Boggs, v.o.s., advokátní kancelář, ID No. 256 38 882, Václavské náměstí
57/813, 110 00 Prague 1, Czech Republic, or any other place as agreed between the Parties. |
4.02 Completion
| (a) | The Parties, each to the extent within its control, shall use their best efforts in order to consummate
or procure the consummation of all of the following actions and transactions, on or before the Completion Date, as follows: |
| (i) | the Seller shall use its best efforts in order the following to occur or have occurred: |
| (aa) | delivery to the Buyer of the following documents relating to the reorganization of matters between
Next Metrology and Topmes: |
| (i) | a copy of a fully executed Confirmation Agreement entered into between Next Metrology and Topmes
in the form agreed by the Parties before or around the signing of this Agreement; |
| (ii) | a copy of a fully executed Equipment Purchase Agreement entered into between Next Metrology and
Topmes in the form agreed by the Parties before or around the signing of this Agreement; |
| (iii) | a copy of a fully executed License Agreement entered into between Next Metrology and Mills in the
form agreed by the Parties before or around the signing of this Agreement; |
| (iv) | a copy of a fully executed License Agreement entered into between Next Metrology and Coord3 India
in the form agreed by the Parties before or around the signing of this Agreement; |
| (v) | a copy of a fully executed Agreement on Additional Capital Contribution entered into between Next
Metrology and Topmes in the form agreed by the Parties before or around the signing of this Agreement; |
| (vi) | a copy of a fully executed Set-off Agreement entered into between Next Metrology and Topmes in
the form agreed by the Parties before or around the signing of this Agreement; |
| (vii) | consent of executives of Next Metrology with the provision of contribution outside of the registered
capital of Next Metrology pursuant to the Agreement on Additional Capital Contribution contemplated in Section 4.02(a)(i)(aa)(vii)
in the form agreed by the Parties before or around the signing of this Agreement; |
| (viii) | Consent from the following employees of Topmes regarding the TouchDMIS Software in the form agreed
by the Parties before or around the signing of this Agreement: |
| (ix) | Confirmation and Consent from the following employees of Topmes regarding the TANGO Software in
the form a agreed by the Parties before or around the signing of this Agreement: |
| (bb) | statements whereby Mills and Mr. Štěpán Hřivna declare to have no and waive
any and all rights or claims vis-à-vis Next Metrology in relation to their role and duties as managing director; |
| (cc) | delivery to the Buyer of a copy of the statement indicated in sub-paragraph (bb) above; |
| (dd) | delivery to the Buyer of a written statement whereby the Seller warrants that the representations
and warranties given by the Seller and referred to in Section 7.02 are accurate, true and correct as at the Completion Date and
as if given at the Completion Date; |
| (ee) | the execution of the Sublease Agreement and delivery to the Buyer of a copy of such agreement; |
| (ff) | delivery to the Buyer of a certified copy of a power of attorney conferring the authority of each
person entering into an agreement or document on behalf of the Seller, if applicable; |
| (gg) | delivery to the Buyer of a written statement with the release of all claims from the Seller in
the form attached as Exhibit 4.02(a)(i)(gg); |
| (hh) | delivery to the Buyer of Ownership Interest Transfer Agreements whereby Mr. Štěpán
Hřivna transferred his entire ownership interest in Topmes to the remaining shareholders of Topmes or to any one of them; |
| (ii) | delivery to the Buyer of an extract from the Commercial Register of Topmes maintained by the Municipal
Court in Prague dated as of a date as near as practicable to the Completion Date; |
| (jj) | delivery to the Buyer of an extract from the Commercial Register of Next Metrology maintained by
the Municipal Court in Prague dated as of a date as near as practicable to the Completion Date; |
| (kk) | delivery to the Buyer of a resolution of Topmes’s General Meeting: |
| (i) | approving all documents under Sections 4.02(a)(i)(aa)(i) through 4.02(a)(i)(aa)(vi) and under Section
4.02(a)(i)(ee), |
| (ii) | unanimously approving transfer of 100% of Topmes’s Share in Next Metrology to the Buyer; |
| (ll) | delivery to the Buyer of a resolution of all Topmes’s managing directors unanimously approving
transfer of 100% of Topmes’s Share in Next Metrology to the Buyer; |
| (mm) | delivery to the Buyer of a resolution of Next Metrology’s General Meeting: |
| (i) | approving all documents under Sections 4.02(a)(i)(aa)(i) through 4.02(a)(i)(aa)(vi) and under Section
4.02(a)(i)(ee), |
| (ii) | recalling Mills and Mr. Štěpán Hřivna from the office of managing directors
(in Czech: jednatel) of Next Metrology with effect as from the Completion Date, |
| (iii) | appointing new managing directors of Next Metrology selected by the Buyer and with effect as from
the Completion Date (the Seller shall bear no liability for the appointment and actions of the newly appointed managing directors), |
| (iv) | unanimously approving transfer of the Share, of the Mills Share and of the Muscarella Share to
the Buyer (the resolution of Next Metrology’s General Meeting in this regard shall be in the form of notarial deed); |
| (nn) | delivery to the Buyer of waivers by the Seller in the form attached as Exhibit 4.02(a)(i)(nn) by
which the Seller waives its right of first refusal to the Mills Share and of the Muscarella Share. |
| (ii) | the Buyer shall deliver to the Seller evidence of the irrevocable payment, by bank wire transfer,
of the Purchase Price; |
| (iii) | the Seller and the Buyer shall, each to the extent within their control: |
| (aa) | cause the execution by the Buyer and Seller of the OITA; |
| (bb) | delivery to the Buyer of a copy of an agreement signed by the shareholders of Topmes, except for
Mr. Štěpán Hřivna, which contemplates the terms and conditions indicated in Section 9(c). |
| (iv) | All conditions to Completion under both the Muscarella SPA and the Mills SPA, except for the consummation
of the Completion action consisting of the occurrence of Conditions to Completion under this Agreement, have occurred. |
| (b) | Completion shall be deemed to have occurred when all of the actions and transactions indicated
in Section 4.02(a) above shall have been duly consummated or waived by the interested Party. |
4.03 Conditions to Completion
| (a) | Completion is subject to the following conditions to Completion which shall have occurred or shall
have been satisfied or waived by the interested Party by the Completion Date: |
| (a1) | conditions in favor of each of the Buyer and the Seller: all actions and transactions provided
for in Section 4.02 shall have been consummated or waived by the interested Party in writing; |
| (a2) | conditions in favor of the Buyer: |
| (i) | Next Metrology’s assets and the Share are free and clear of any Encumbrances; |
| (ii) | no Material Adverse Change in Next Metrology since the Reference Date; |
| (iii) | receipt of Required Consents; |
| (iv) | no legal proceedings are pending which are aimed at preventing the Transaction (or any portion
thereof) from completing. |
| (b) | Should any of the conditions indicated in paragraph (a) above not be satisfied or waived by the
interested Party by the Completion Date, the Parties shall be released from the obligation to complete the acquisition of the Share
contemplated by this Agreement, which shall be deemed terminated. |
| (c) | Should any of the conditions to Completion provided for in this Section 4.03 not be met or satisfied
by the Completion Date due to one of the Parties’ failure to provide its utmost co-operation for the purpose of the
satisfaction of such conditions or to fulfill the obligations provided for in Section 4.02, termination of this Agreement pursuant
to Section 4.03(b) shall be without prejudice to any remedy the other Party may have under the law or pursuant to this Agreement
as a result of a breach of a warranty and/or covenant under this Agreement. |
SECTION 5
Pre- and Post-Completion Date Covenants
5.01 Management and conduct of Next
Metrology Business
| (a) | From the date hereof and until the Completion Date, unless otherwise contemplated by this Agreement
or approved by the Buyer in writing, the Seller shall use its best efforts to cause Next Metrology to: |
| (i) | conduct Next Metrology’s business (including managing the working capital, the collection
of accounts receivable, the payment of accounts payable) with due care and diligence in the ordinary and usual course, consistent
with past practice as disclosed to the Buyer; |
| (ii) | continue to insure all insured assets which are part of Next Metrology’s business, whether
owned or leased, and use, operate, maintain and repair all such assets in accordance with past practice; |
| (iii) | preserve its relationships with the employees, self-employed persons, distributors, agents, representatives,
suppliers and customers; |
| (iv) | refrain from acting or omit to act in such way as to cause a material breach of any material agreement,
contract, commitment or obligation of Next Metrology; |
| (v) | keep Next Metrology’s facilities, machinery and equipment in normal operating conditions
and repair, except for ordinary wear and tear; |
| (vi) | duly and timely comply in all material respects with all of its obligations, including the obligations
arising from any loan or other financial commitment; |
| (vii) | give the Buyer reasonable direct access to management, legal and financial advisors, auditors and
documents of Next Metrology; |
| (viii) | continue to maintain its books and records in accordance with all applicable laws and the Agreed
Accounting Principles; |
| (ix) | prepare financial statements for each month, in accordance with the Agreed Accounting Principles,
and deliver them to Buyer by the 20th day following the end of the month. |
| (b) | From the date hereof and until the Completion Date, the Seller may not approve or support any Next
Metrology’s decision concerning the matters as follows: |
| (i) | sale or disposal of any assets; |
| (ii) | granting of any rights (including in rem securities) in respect of any of Next Metrology’s
assets or the charging of any of said assets with any Encumbrances; |
| (iii) | decisions to incur any indebtedness or to borrow any money or to enter into any factoring or invoice
discount agreement; |
| (iv) | extension of the terms of payment of any payables or other liabilities or of any receivables or
discount any receivables; |
| (v) | transactions (including share capital increase or decrease) which affect the share capital of Next
Metrology; |
| (vi) | the granting of any rights (including in rem security rights) on any of the shares of Next
Metrology or any further share to be issued by Next Metrology and issuance of any bond or other securities; |
| (vii) | decisions to undertake any capital commitment (purchase or financial / capital lease of fixed or
other assets); |
| (viii) | decisions to enter into any partnership, consortium, association, joint venture agreements; |
| (ix) | change of the remuneration of any of the employees, other than increases required by the law or
by the applicable collective bargaining agreements; |
| (x) | recruitment of any new registered managing director or any key manager; |
| (xii) | acquisition or disposal of equity interests in other entities or of businesses as going concerns
or any branches thereof; |
| (xiii) | agreements with customers or suppliers (including purchase orders) (aa) which have each a value
greater than EUR 30,000 as to customers contracts and EUR 30,000 as to suppliers, or (bb) whereby the counterpart may withdraw
or terminate without cause, or (cc) whereby the counterpart may withdraw or terminate for change of control, or (dd) which provide
for restrictions to Next Metrology’s or any of Next Metrology’s present or future Affiliates’ freedom to operate
in the market, or (ee) whereby Next Metrology must give unusual warranties or guarantees, or (ff) which contemplate unusual payment
terms if compared with standard market practice; |
| (xiv) | agreements with related parties (including shareholders, directors or employees of Next Metrology
or relatives of the shareholders or of the directors or employees); |
| (xv) | change in accounting methods, policies or procedures or presentations of accounts; declaration
and distribution of dividends or capital funds; |
| (xvi) | settlements of disputes; |
| (xvii) | guarantees to secure the obligations of a third party; |
| (xviii) | liquidation; dissolution; mergers, de-mergers and restructurings; |
| (xx) | permitting the lapse or forfeiture of intellectual property rights or other intangible assets; |
| (xxi) | fail to file any tax returns or any other report to any authority as required under the law or
any contract by its applicable due date or fail to pay any taxes that first become due and payable after the date hereof, as and
when they first became due and payable; |
| (xxii) | negotiations for the settlement or compromise, settlements or compromise of any tax liability; |
| (xxiii) | enter into or amend any agreement, except for acceptance or placement of purchase orders in the
ordinary course of business; |
| (xxiv) | pay any dividend or distribution; |
| (xxv) | terminate any material agreement; |
| (xxvi) | taking any action that would make any of the representations and warranties hereof untrue or failing
to take any action that would prevent any of the representations and warranties from becoming untrue. |
| (c) | The Seller agrees to use its best efforts to cause Next Metrology to take such actions and to execute
such certificates and other documents as from time to time shall be reasonably requested by the Buyer to allow the Buyer to make
any tax election requested by the Buyer (including, without limitation, an entity classification election under U.S. Treasury Regulation
Section 301.7701-3(c)(1)(i) on Form 8832 with an effective date that is the day immediately preceding the Completion). |
5.02 Site visits
The Seller shall ensure, prior to Completion
Date, that representatives of the Buyer are allowed to visit the Property and the facilities of Next Metrology, upon the Buyer’s
reasonable request, which shall be made in writing (also via email) at least 2 Business Days before the date of the visit; in any
event, the Buyer hereby acknowledges that the visit on site shall be carried on in a manner which will not unreasonably disrupt
the normal and ordinary activity of Next Metrology, its directors, managers and employees.
5.03 Other Pre-Completion Date Covenants
| (a) | The Seller shall ensure that, from the date hereof until the Completion Date, the Buyer will have
access to Next Metrology’s books, records, contracts and personnel, upon its reasonable request which shall be made in writing
(also via email) before the date of the relevant access, being agreed and understood that such access shall be carried on in a
manner which will not unreasonably disrupt the normal and ordinary activity of Next Metrology, its directors, managers and employees. |
| (b) | The Seller shall take, and shall use its best efforts to cause Next Metrology to take, all necessary
actions to obtain the Required Consents, so that they are delivered prior to the Completion Date. |
| (c) | The Seller shall cause the representations and warranties referred to in Section 7.02 and relating
to the Seller to be accurate, true and correct as at the Completion Date as if given at the Completion Date. The Seller shall use
its best efforts to cause Next Metrology to cause the representations and warranties referred to in Section 7.02 and relating to
Next Metrology to be accurate, true and correct as at the Completion Date as if given at the Completion Date. |
5.04 Confirmation of receipt of the
Purchase Price
The Seller shall deliver to the Buyer a
statement of the Seller whereby the Seller acknowledges receipt of the Purchase Price. Such statement shall be delivered by the
Seller to the Buyer within 5 (five) calendar days from the day of its receipt.
SECTION 6
Due
diligence
| (a) | Prior to the execution of the Agreement, the Buyer has conducted a full legal, economic, financial,
accounting, commercial, tax, employment, social security, corporate and environmental due diligence on Next Metrology (“Due
Diligence”) and taking into account. the outcome of the Due Diligence, the Buyer has agreed to enter into this Agreement
and to acquire the Share for the Purchase Price. |
| (b) | The Buyer simultaneously declares to have checked and got familiar with the legal, economic, financial
and business situation of Next Metrology as on the day of signing hereof as Disclosed in the documents listed in Annex 1 hereto
(hereinafter referred to as “Disclosed Documents”), which were Disclosed by the Seller and Next Metrology for
purposes of the Due Diligence. The Buyer declares to have got acquainted with the Disclosed Documents and upon knowledge Disclosed
therein and based on the findings of the Due Diligence it hereby buys and acquire the Shares for the Purchase Price. |
SECTION 7
Representations and warranties
7.01 Buyer’s representations
and warranties.
The Buyer represents and warrants to the
Seller that the representations and warranties indicated in Exhibit 7.01 are true, correct and not misleading as at the date of
this Agreement and hereby acknowledges that each of such representations and warranties is material and essential to the Seller,
who is relying on such representations and warranties in entering into this Agreement. For the avoidance of any doubt, it is agreed
that the Buyer’s representations and warranties shall not be affected, limited or diminished by any knowledge by the Seller
of the matters covered by the representations and warranties.
7.02 Seller’s representations
and warranties.
| (a) | The Seller represents and warrants to the Buyer that the representations and warranties indicated
in Exhibit 7.02 are true, correct and not misleading as at the date of this Agreement, and hereby acknowledges that each of such
representations and warranties is material and essential to the Buyer, who is relying on such representations and warranties in
entering into this Agreement. For the avoidance of any doubt, it is agreed that the Seller’s representations and warranties
shall not be affected, limited or diminished by any investigation (including the Due Diligence) up to this date or hereafter made
by the Buyer (directly and through its advisors) with respect to Next Metrology, the Share, Next Metrology’s assets, liabilities
and properties or by any knowledge by the Buyer of the matters covered by the representations and warranties. As of the date of
this Agreement, the Buyer’s representatives, Jeffrey Armstrong or Keith Marchiando, do not have actual conscious awareness
of any inaccuracy or breach of the representations and warranties of the Seller in this Agreement. |
| (b) | Each of the representations and warranties made or given by the Seller in or pursuant to Section
7.02 of this Agreement or confirmed by the Seller at the Completion Date pursuant to Section 4.02(a)(i)(ee) shall be construed
as a separate and independent representation and warranty and, except where expressly stated, shall not be limited or restricted
by reference to or inference from the terms of any other representations and warranties or any other provision of this Agreement. |
| (c) | The rights and remedies of the Buyer in respect of any breach of the representations and warranties
made or given by the Seller in or pursuant to this Agreement or confirmed by the Seller at the Completion Date pursuant to Section
4.02(a)(i)(ee) shall not be affected by completion of the purchase of the Share, by Buyer’s termination or failure to terminate
this Agreement or by any other event or matter whatsoever, except a specific and duly authorised written waiver or release expressly
referring to such breach. |
| (d) | The Parties agree that provisions of the Czech Civil Code regarding liability for defects, including,
but not limited to, Sections 1914(2) through 1925 and Sections 2099 through 2117 of the Czech Civil Code, shall not be applicable
to this Agreement. |
SECTION 8
Indemnification
8.01 Seller’s indemnification
obligation
| (i) | In addition to any other remedies available to the Buyer under this Agreement, the Seller shall
indemnify, compensate and pay to the Buyer and/or to Next Metrology the entire amount of any and all harm (in Czech: újma),
liabilities, reduced value of the assets, losses, damages, costs, penalties, deficiencies, expenses, claims and demands, irrespective
of the size of Seller’s ownership interest in Next Metrology, of any such person (aa) resulting or deriving from the fact
that any of the representations and warranties made or given by the Seller in or pursuant to Section 7.02 of this Agreement or
confirmed by the Seller at the Completion Date pursuant to Section 4.02(a)(i)(ee) are untrue or incorrect, (bb) resulting or deriving
from any discrepancy between the representations and warranties confirmed by the Seller at the Completion Date pursuant to Section
4.02(a)(i)(ee) and the situation as at the Completion Date, or (cc) resulting or deriving from any acts or omissions of Next Metrology
or Seller on or prior to the Completion Date (“Losses” and each a “Loss”), provided however
that the Buyer used its best efforts in order to avoid or at least reduce such Losses or Loss and simultaneously allowed the Seller
to avoid or reduce such Losses or Loss well in advance. |
| (ii) | The indemnification obligation provided for in this Section 8.01 shall extend to all costs, expenses
(including reasonable attorney’s fees and experts’ costs) and disbursements incurred by the Buyer in enforcing its
rights in respect of a claim under this Agreement and/or by Next Metrology in enforcing its rights. |
| (iii) | The Parties agree that any payments due by the Seller as indemnification shall be made by the Seller
directly to the Buyer, unless the Buyer gives instructions to the Seller to make such payments directly to Next Metrology. |
| (iv) | The Seller shall be under no obligation to indemnify the Buyer under this Section 8.01 for any
Loss in relation to which, by the time the payment by the Seller is due, either the Buyer or Next Metrology receives compensation,
indemnification or reimbursement by third parties (including insurance companies), without recourse, to the extent of such compensation,
indemnification or reimbursement. |
| (v) | If any amount payable pursuant to this Section 8.01(a) is subject to tax, that amount shall be
increased so as to ensure that the net amount received by the Buyer and/or Next Metrology shall, after tax, be equal to that which
would have been received had the payment and any increased payment not been subject to tax. |
| (b) | Limitations to the Seller’s liability |
| (i) | The Seller shall be liable to the Buyer under this Agreement and / or the OITA (including but not
limited to Seller’s liability under this Section 8.01 for any Losses), but excluding Seller’s liability under Section
9 for any and all losses up to a maximum amount equal to EUR 100,000 (one hundred thousand). |
| (ii) | The limitation to the Seller’s liability provided for in paragraph (b)(i) above shall not
apply to Losses resulting or deriving from any inaccuracy or breach of any of the representations and warranties relating to Authority
set forth under Section 1 of Exhibit 7.02., Good standing set forth under Section 2 of Exhibit 7.02., title to the Share or Affiliate
Transactions set forth under Section 11(a) of Exhibit 7.02. |
| (c) | Time limits to Seller’s liability |
The Seller shall not be liable
to the Buyer under this Agreement and / or the OITA (including but not limited to Seller’s liability under Section 8.01 in
respect of any Losses), but excluding Seller’s liability under Section 9 if the relevant indemnification or another claim
is notified to the Seller after:
| (aa) | the later of (i) the date of expiration of the relevant statute of limitation or (ii) the 5th
(fifth) anniversary of the Completion Date, as to Losses referred to in paragraph (b)(ii) above; |
| (bb) | 36 months from the Completion Date, for any and all losses (including but not limited to Losses
relating to matters other than those indicated in sub-paragraph (aa) above), but excluding Seller’s liability for any and
all losses resulting or deriving from any breach of Section 9. |
8.02 Buyer’s indemnification
obligation
| (a) | The Buyer shall indemnify, compensate and pay to the Seller the amount of all losses, damages,
costs and penalties incurred in, or suffered by the Seller, resulting or deriving from any inaccuracy or breach of any of the representations
and warranties made or given by the Buyer in or pursuant to this Agreement. |
| (b) | The provisions of Section 8.01 (including those concerning liability limitations) shall apply to
the indemnification obligations of the Buyer herein mutatis mutandis. |
SECTION 9
Restrictive Covenants
| (a) | The Seller agrees that, as from the Completion Date and for a period of 3 (three) years thereafter,
in its capacity as a seller of the Share and irrespective and without prejudice to any other restrictive covenant it has agreed
or will agree to, it shall not: |
| (i) | either on its own account or in conjunction with or on behalf of any person, carry on, engage,
be concerned or interested (directly or indirectly and whether as principal, shareholder, director, employee, agent, distributor,
consultant, partner or otherwise) in the business of (A) designing, engineering, or manufacturing, CMMs and laser-based and other
technology, software and applications used in connection with CMMs, nor engaging others to do so on its behalf, nor (B) further
developing, enhancing, improving or revising the TANGO software; provided that Topmes may continue its existing business of (i)
acting as a dealer for the marketing, selling, installing, servicing and maintaining of CMMs designed, engineered and manufactured
by persons other than Topmes and its Affiliates, (ii) retrofitting CMMs designed, engineered and manufactured by persons other
than Topmes and its Affiliates, (iii) marketing, selling, installing, servicing, and maintaining software and applications designed
and engineered by persons other than Topmes and its Affiliates used in connection with CMMs, (iv) honoring its maintenance obligations
for the TANGO software under existing contracts and (v) licensing third party end users to use the version of the TANGO software
in existence on the date of this Agreement (“Permitted Activities”); |
| (ii) | either on its own account or in conjunction with or on behalf of any person, solicit or endeavour
to entice away from the Company (Buyer, Next Metrology and their respective Affiliates) any person who, at the Completion Date,
is an officer, manager, employee, self-employed person, or consultant of Next Metrology, whether or not such person would commit
a breach of contract by reason of leaving service or office; |
| (iii) | except in connection with the Permitted Activities, either on its own account or in conjunction
with or on behalf of any person, endeavour to entice away from the Company any person who, at the Completion Date of this Agreement,
is a customer of Next Metrology (directly or indirectly through software sales by original equipment manufacturers, distributors
and dealers), whether or not such customer would be in breach of its contract with Next Metrology or – after Completion –
with the Company as a result thereof; and |
| (iv) | except in connection with the Permitted Activities, either on its own account or in conjunction
with or on behalf of any person, carry on, engage, be concerned or interested (directly or indirectly and whether as principals,
shareholders, directors, employees, agents, distributors, consultants, partners or otherwise) in any business conducted by the
Company at the Completion Date. |
| (b) | The Seller and the Buyer represent to each other and acknowledge that the provisions contained
in Section 9(a) are necessary for the protection of the Buyer’s and Next Metrology’s interests and goodwill. The geographical
scope of the Seller’s obligations contained in Section 9(a) shall be the entire world. Should any such restriction or undertaking
be void or voidable but would be valid and enforceable if some part or parts of the restriction or undertaking were deleted or
modified, such restriction or undertaking shall apply with such deletion or modification as may be necessary to make it valid and
enforceable. The consideration for the Seller’s fulfilment of the obligations contained in this Section 9 has been included
in the Purchase Price. |
| (c) | The shareholders of Topmes, except for Mr. Štěpán Hřivna, shall enter into
a separate agreement with the Buyer agreeing to be bound by the foregoing restrictive covenants as if they were the Seller. |
SECTION 10
Property
The Seller agrees to procure that the Property
be subleased to Next Metrology for a period until at least the 6-months’ anniversary of the Completion Date, upon the terms
and conditions which are indicated in the draft sublease agreement attached hereto in agreed form as Exhibit 9 (“Sublease
Agreement”).
SECTION 11
Termination
The Parties, to the maximum extent allowed
by Czech law, exclude all provisions of the Czech Civil Code and other applicable regulations under which a Party might be entitled
to withdraw from or otherwise terminate this Agreement and / or the OITA.
SECTION 12
Miscellaneous
12.01 Confidentiality
| (a) | Each of the Seller and the Buyer shall at all times keep strictly confidential and, as applicable,
each of the Seller and the Buyer shall procure that their respective officers, employees and professional advisers keep strictly
confidential any information pertaining to this Agreement (including but not limited to the purchase price and terms of sale) and
the financials, business operations, marketing practices or policies, litigation, identity of customers as well as any other confidential
aspect of Next Metrology, except for such information relating to this Agreement which Buyer and its Affiliates may be required
to disclose in connection with reporting and disclosures requirements of the Buyer and its Affiliates under applicable law or the
rules of The Nasdaq Stock Market and except for any such information which: |
| (i) | at the time of disclosure is publicly available or becomes publicly available otherwise than, directly
or indirectly, through the breach by any of the Seller or the Buyer of this Section 12.01 or the failure of any officer, employee
or professional adviser referred to above to keep the same confidential; or |
| (ii) | is required to be disclosed by any other applicable law or by any supervisory or regulatory body,
in which case the Party shall inform, to the extent reasonably practicable, the other Party that such disclosure is required, and
the Parties shall use their reasonable efforts to agree in good faith on the content of such disclosure prior to it being made. |
| (b) | The Seller acknowledges that an Affiliate of the Buyer is listed on The Nasdaq Stock Market and
its stock is registered with the Securities and Exchange Commission and is therefore subject to strict regulatory obligations in
relation to the disclosure of any information and data concerning transactions similar to the transaction contemplated by this
Agreement. Therefore, the Seller agrees that any public disclosure of any information or data concerning the transaction contemplated
by this Agreement, including any press release, shall be made only at such time and in such form and substance as acceptable to
the Buyer. |
12.02 Entire agreement and amendments
| (a) | This Agreement and the OITA shall together form the sole and entire agreement between the Parties
governing the Transaction as contemplated herein and supersedes all prior verbal and/or written agreements between the Parties
concerning its subject matter. In the event of any inconsistency between this Agreement and the OITA, this Agreement shall prevail.
This Agreement shall survive conclusion of OITA in its entirety with the exception of the obligation of the Parties to enter into
OITA under Section 4.02(a)(iii)(aa), which shall be consumed by conclusion of the OITA. |
| (b) | The amendments to this Agreement shall be valid and effective if agreed upon by the Parties in
writing. |
12.03 Successors – Assignment
This Agreement and all of the provisions
hereof shall be binding upon and shall inure to the benefit of the Parties and their respective permitted assignees, heirs or successors.
Neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned by one Party without the prior
written consent of the other Parties, while such consent might not be unreasonably withheld or delayed; provided that Buyer may
Assign its rights under this Agreement to a party who acquires all or substantially all of the Assets of Next Metrology, provided
that such assignment shall not relieve the Buyer of its obligations under this Agreement without the prior written consent of the
Seller.
12.04 Notices
Any communication or notice required or
permitted to be given under this Agreement shall be made in writing and in the English language by way of either registered mail
or telefax, addressed, in each case, to the addresses indicated below (or to such other address as each Party may hereafter provide
to the other by written notice as provided herein) and with a copy by e-mail and it shall be deemed to have been duly and validly
given: (i) in case of notice sent by registered mail, upon receipt of the same; and (ii) in case of notice sent by telefax, upon
acknowledgement of successful and complete transmission by the fax machine of the sender:
if to Buyer:
c/o Perceptron, Inc.
47827 Halyard Drive
Plymouth, MI 48170
U.S.A.
Fax No. +1-734-414-4800
Attention: Jeffrey M. Armstrong, President
e-mail: armstrong@perceptron.com
with a copy (which shall not constitute
notice) to:
Thomas S. Vaughn
Dykema Gossett, PLLC
400 Renaissance Center
Detroit, MI 48243
Fax No.: +1-313-568-6915
e-mail: tvaughn@dykema.com
if to the Seller:
By registered mail
TOPMES s.r.o.
Štěrboholská 1307/44
102 00 Praha 10 - Hostivař
The Czech Republic
Attention: Martin Prokop, Karel Pich
e-mail: mprokop@topmes.cz
e-mail: kpich@topmes.cz
12.05 Language
This Agreement is entered into in the English
language. The Parties hereby acknowledge to have fully understood its content and all of its terms and conditions.
12.06 Severability
If any provision of this Agreement is held
to be illegal, invalid, unenforceable or deemed non-existent under present or future laws effective during the term of this Agreement,
such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid, unenforceable,
or non-existent provision had never comprised a part of this Agreement and the remaining provisions of this Agreement shall remain
in full force and effect and shall not be affected by the illegal, invalid, unenforceable or non-existent provision or by its severance
from this Agreement. Furthermore, in lieu of each such illegal, invalid, unenforceable or non-existent provision, a provision
as similar in terms to such illegal, invalid, unenforceable or non-existent provision as may be possible and be legal, valid and
enforceable shall be added automatically, as a part of this Agreement.
12.07 Fees and expenses
| (a) | Except as otherwise expressly provided for by this Agreement, all legal and other advisors’
fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be borne by
the Party incurring such fees, costs or expenses. |
| (b) | All stamp duties, registration taxes and notary fees relating to the transfer of the Share pursuant
to Section 2(b) shall be borne by the Buyer. |
12.08 Interest Rate
Should any payment due under this Agreement
by either Party not be made on or before the agreed term for payment, an interest equal to 0,05% per day (or the maximum percentage
allowed by anti-usury laws and regulations from time to time, if lower) will accrue from the date of expiration of the payment
term until the actual payment is provided.
12.09 Waivers
| (a) | No delay, indulgence or omission in exercising any right, power or remedy provided by this Agreement
or by law shall operate to impair or be construed as a waiver of such right, power or remedy or of any other right, power or remedy. |
| (b) | The Seller agrees with the Buyer: |
| (i) | to waive any claim or remedy or right which it may have as at Completion; and |
| (ii) | that Next Metrology and any managing director, officer or employee of Next Metrology shall have
no liability whatsoever to the Seller on or after Completion, |
in respect of any misrepresentation,
inaccuracy or omission in or from any information or advice supplied or given by Next Metrology or a director, officer or employee
of Next Metrology for the purpose of assisting the Seller in giving any warranty, representation, undertaking or covenant, in preparing
due diligence documents and in entering into this Agreement or any agreement or document entered into pursuant to this Agreement.
12.10 Survival of the Agreement
The provisions of this agreement insofar as they have not been
performed at Completion shall remain in full force and effect notwithstanding Completion, including conclusion of the OITA.
SECTION 13
Governing Law - Arbitration
13.01 Governing Law
This Agreement shall be governed by and
construed in accordance with the laws of the Czech Republic, without regard to the provisions governing conflicts of laws.
13.02 Arbitration
| (a) | Any dispute arising out of or related to this Agreement shall be settled by arbitration under the
Rules of Arbitration of the International Chamber of Commerce of Paris, by three arbitrators, appointed in accordance with such
Rules, who shall be fluent in the English language. |
| (b) | The place of the arbitration shall be Paris, France. The language of the arbitration shall be English. |
| (c) | Any dispute arising out of or related to this Agreement and any comparable dispute arising out
of the Muscarella SPA and the Mills SPA shall be heard and decided in a single arbitration proceeding. |
SIGNED by TOPMES s.r.o.
Martin Prokop |
|
Managing Director |
|
|
|
Signature |
: /s/ Martin Prokop |
SIGNED by Perceptron, Inc.
Margaret Mary Kaczmarek Nelson
Vice President |
|
|
|
Signature |
: /s/ Margaret Mary Kaczmarek Nelson |
EXHIBIT 1.03
Certain Definitions
“2013 Financial Statements” |
|
shall mean the financial statements of Next Metrology as at December 31, 2013 as finally approved by the shareholders. |
|
|
|
“Affiliates” |
|
shall mean persons controlling, controlled by or under common control with the person. For purposes of this Agreement, “control” shall be interpreted in accordance with Section 74 et seq. of Act No. 90/2012 Coll. of the Czech Republic, Act on Business Companies and Cooperatives, as amended. |
|
|
|
“Agreed Accounting Principles” |
|
shall mean the Czech Accounting Principles
as applied by Next Metrology on a consistent basis and used to prepare the 2013 Financial Statements, as amended and integrated
as indicated in Appendix A.
|
“Agreement” |
|
shall mean this agreement, inclusive of the Exhibits, Appendices and Annexes. |
|
|
|
“Annexes” |
|
shall mean all annexes, as listed above in the table of contents. |
|
|
|
“Appendices” |
|
shall mean all appendices, as listed above in the table of contents. |
|
|
|
“Business Day/s” |
|
shall mean each calendar day other than Saturdays, Sundays and any other days on which banks are closed for business in the City of Torino, Italy and the City of Prague, Czech Republic. |
|
|
|
“Buyer” |
|
shall have the meaning indicated in the headings of this Agreement. |
|
|
|
“Company” |
|
shall mean the Buyer, Next Metrology and their Affiliates. |
|
|
|
“Completion” |
|
shall mean the consummation of all of the actions and transactions indicated in Section 4.02 (unless waived by the interested Party) and the completion of the transfer of full title to and ownership of the Share to the Buyer as contemplated in this Agreement. |
|
|
|
“Completion Date” |
|
shall mean the date upon which Completion will take place, as specified in Section 4.01(a). |
|
|
|
“CMM” |
|
means coordinate measuring machine and equipment. |
“Coord3 India” |
|
shall mean Coord3 Metrology India Private Limited |
|
|
|
“Czech Accounting Principles” |
|
shall mean Czech Republic generally accepted accounting principles. |
|
|
|
“Czech Civil Code” |
|
Act No. 89/2012 Coll. of the Czech Republic, Civil Code, as amended |
|
|
|
"Disclosed" |
|
means a matter that is fully and fairly disclosed with sufficient detail and accuracy (as to its nature, legal purpose and title and specific amount) so as to enable a reasonable assessment of its impact on Next Metrology. |
|
|
|
“Due Diligence” |
|
shall have the meaning indicated in Section 6. |
|
|
|
“Encumbrance” |
|
shall mean any mortgage, charge, pledge, lien, security interest or attachment of any nature whatsoever, note of the Cadastral Office indicating any potential or actual change in the legal status of a property (in Czech: Plomba), options, right of first refusal, easement (whether registered or unregistered), title retention, third party rights (including in rem rights) or other securities or de facto situations attached to a certain object or asset or share and limiting the rights thereupon. “Encumbrances” shall be construed accordingly. |
|
|
|
“Exhibit/s” |
|
shall mean all exhibits, as listed above in the table of contents. |
|
|
|
“Governmental Authority” |
|
shall mean any foreign, European Union, or Czech national, regional or local governmental authority, quasi-governmental authority, court, or any regulatory, administrative or agency, or any subdivision, department or branch of any of the foregoing. |
|
|
|
“Governmental Authorization” |
|
shall mean any consent, permit, concession, license, registration, approval, authorization, permit, order, exemption, certificate, or variance issued, granted, given, or otherwise made available by or under the authority of any Governmental Authority or required pursuant to any applicable law. |
|
|
|
“Losses” and “Loss” |
|
shall have the meaning indicated in Section 8.01(a)(i). |
|
|
|
“Material Adverse Change” |
|
shall mean any change or effect that is materially adverse to the financial situation, financial performance, business, prospects, assets, liabilities or value of the net assets of Next Metrology, but excluding any change or effect arising out of general economic conditions or conditions affecting companies generally in the industry in which Next Metrology operates. |
“Mills” |
|
Keith Mills, British national, born in [ ], on [ ], domiciled at [ ], UK passport no. [ ]. |
|
|
|
“Mills Share” |
|
shall have the meaning indicated in Introduction A. |
|
|
|
“Mills SPA” |
|
shall mean the Agreement for the purchase of the Mills Share by the Buyer dated January 29, 2015. |
|
|
|
“Muscarella” |
|
Angelo Muscarella, Italian national, born in [ ], on [ ], domiciled at [ ], tax registration number [ ]. |
|
|
|
“Muscarella Share” |
|
shall have the meaning indicated in Introduction A. |
|
|
|
“Muscarella SPA” |
|
shall mean the Agreement for the purchase of the Muscarella Share by the Buyer dated January 29, 2015. |
|
|
|
“Next Metrology” |
|
shall mean Next Metrology Software s.r.o., a Czech Republic company duly existing and organized under Czech law, with offices at Štěrboholská 1307/44, 102 00 Prague 10, Czech Republic, Identification No.: 29129273, registered in the commercial register maintained by the Municipal Court in Prague, Section C, Insert 202085,registered share capital equal to CZK 200,000. |
|
|
|
“OITA” |
|
shall have the meaning indicated in Section 2(b). |
|
|
|
“Parties” |
|
shall mean the Seller and the Buyer. |
|
|
|
“Party” |
|
shall mean the Seller and the Buyer, when individually and generically referred to. |
|
|
|
“Property” |
|
means office No. 17 of area of 56,59 m² situated in building “K” on plot no. 1350/2, which is registered in the cadastral area of Hostivař, municipality of Prague, in title deed No. 139, used by Next Metrology to carry out its business. |
|
|
|
“Purchase Price” |
|
shall have the meaning indicated in Section 3.01. |
|
|
|
“Reference Date” |
|
shall mean December 31, 2014. |
|
|
|
“Required Consents” |
|
shall mean a consent by TESLA KARLÍN,
a.s., a company with its registered seat at Prague 10, V Chotejně 9/1307, Zip Code 10200, Czech Republic, ID No.: 452 73 758,
with the sublease of the Property by Topmes to Next Metrology under the Sublease Agreement.
|
“Seller” |
|
shall have the meaning indicated in the headings of this Agreement. |
|
|
|
“Share” |
|
shall have the meaning indicated in Introduction A. |
|
|
|
“Sublease Agreement“ |
|
shall have the meaning indicated in Section 10. |
|
|
|
“Transaction” |
|
shall have the meaning indicated in Section 2(a). |
EXHIBIT 7.01
Buyer’s Representations and
Warranties
| 1. | Good standing – Authority |
| (a) | The Buyer is a corporation validly existing, duly incorporated and in good standing under the laws
of the State of Michigan, United States of America. |
| (b) | The Buyer has full power and authority (including full corporate or other entity power and authority)
to execute and deliver this Agreement and to perform its obligations under this Agreement. The Buyer does not need to give any
notice to, make any filing with, or obtain any authorization, consent, or approval of any third party, or need to give any notice
to, make any filing with, or obtain any Governmental Authorization from, any Governmental Authority in order for the it to consummate
the transactions contemplated by this Agreement, other than as otherwise specified in the Agreement. |
| (c) | Neither the execution and the delivery of this Agreement, nor the consummation of the transactions
contemplated by this Agreement shall: (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any Governmental Authority, or court to which Buyer is subject; or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any Contract, license, instrument, or other arrangement to which Buyer
is a party or by which it is bound or to which any of its assets is subject. |
| (d) | All corporate actions taken and which will be taken in connection with the Agreement have been
duly authorized by all required corporate actions and the Buyer has not taken any action that, in any respect, conflicts with,
constitutes a default under or results in any violation of any provision of its articles of association or by-laws. |
| (e) | The Buyer’s authorized representative has all the necessary corporate powers to enter into
this Agreement. |
| 2. | No bankruptcy proceedings |
The Buyer is not insolvent or subject to any insolvency or pre-insolvency
proceeding nor is it a party to or is negotiating any creditors’ arrangement of any kind.
EXHIBIT
7.02
Seller’s representations
and warranties
| (a) | The Seller has full power and authority (including full corporate or other entity power and authority)
to execute and deliver this Agreement and to perform its obligations under this Agreement. Except for approval of Next Metrology’s
general meeting and Filing at the Companies Register, the Seller does not need to give any notice to, make any filing with, or
obtain any authorization, consent, or approval of any third party, or need to give any notice to, make any filing with, or obtain
any Governmental Authorization from, any Governmental Authority, in order to transfer the Share to the Buyer. |
| (b) | Non-contravention. The execution of this Agreement, shall not violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any Governmental Authority, or court
to which the Seller is subject. |
| (a) | Good standing - Authority |
| (i) | Next Metrology and Topmes are each a limited liability company, validly existing, duly incorporated
and in good standing under the laws of the Czech Republic. |
| (ii) | No resolution has been passed or will be passed prior to Completion to approve the winding up of
Next Metrology. |
| (iii) | All corporate actions taken and which will be taken by Topmes in connection with this Agreement
have been duly authorized and the Seller has not taken any action that, in any respect, conflicts with, constitutes a default under
or results in any violation of any provision of law or of their articles of association, by-laws or any other internal document. |
| (b) | No insolvency proceedings |
| (i) | The Seller is not subject to any insolvency proceeding of any kind nor does it satisfy the requirements
for filing any insolvency procedure of any kind, including on the basis of threatening insolvency (in Czech: hrozící
úpadek). No liquidator, insolvency trustee, bankruptcy receiver, administrator or similar officer has been appointed
in respect of the Seller. No action in respect of the Seller is currently being taken with a view to file for any such insolvency
proceeding or to appoint any such liquidator, insolvency trustee, bankruptcy receiver, administrator or similar officer. |
| (ii) | No arrangement with any of the Seller’s creditors of any kind has been entered into or is
currently being negotiated. |
| (iii) | Neither Next Metrology nor the Seller has entered into any agreement for the assignment of their
assets (or any part of them) for the benefit of its creditors. |
| (iv) | The Seller has not filed any petition for the restructuring of its debt or an insolvency or similar
motion against themselves or Next Metrology. The Seller is not aware that an insolvency or similar motion would have been filed
against it in any jurisdiction by any third person. |
| (v) | No resolution has been passed to dissolve or liquidate Next Metrology or Topmes. |
| 3. | Share Capital of Next Metrology |
| (a) | The issued and outstanding registered capital of Next Metrology is that indicated in the headings
of the Agreement. The issued registered capital has been duly authorized, and is fully subscribed and paid. The ownership interests
representing 100% of the registered capital of Next Metrology have been duly issued. |
| (b) | The Seller is the sole registered, legal and beneficial owner of an ownership interest representing
50% of the registered capital of Next Metrology. |
| (c) | Next Metrology’s ownership interest owned by the Seller is free and clear from any Encumbrances
except for the pre-emption rights of Mills and Muscarella. . |
| (d) | No resolution has been passed to approve any increase or decrease of the registered capital of
Next Metrology, no contribution outside the registered capital (in Czech: příplatek) of Next Metrology has been made,
and there are no outstanding options, warrants, agreements, conversion rights, pre-emption rights or other rights to subscribe
for, purchase or otherwise acquire the Share or any further ownership interests of Next Metrology except for the pre-emption rights
of Mills and Muscarella, except for the Agreement on Additional Capital Contribution contemplated in Section 4.02(a)(i)(aa)(v). |
| (e) | Next Metrology has issued no bonds or other securities. |
| (f) | No advance payment of dividends or any other distribution of any future dividends has been approved
or made. |
| (g) | No person is a shadow managing director of Next Metrology and no other person than the Seller,
Mills and Muscarella exercises decisive influence or control over Next Metrology. |
| 4. | Title to the Target Business |
All of
Next Metrology’s assets are free and clear of any Encumbrances and there are no outstanding options, warrants, agreements,
pre-emption rights or other rights to purchase or otherwise acquire Next Metrology, any portion thereof or any of its assets.
| 5. | Loans to
or by the Seller |
Except
for obligation of Next Metrology to pay to the Seller the amount of EUR 28.400,00 and CZK 44.194,00 and obligations set forth in
Annex 5, there is no outstanding indebtedness or other liability (actual or contingent) owed by Next Metrology to the Seller, its
Affiliates or to any director, officer, or employee of Next Metrology or any person related to a director, officer, or employee
as aforesaid, nor is there any indebtedness owed to Next Metrology by any such person.
| (i) | Next Metrology has all rights (including the right to exercise economic rights) and has been provided
by all its employees, contractors and other authors with consents allowing interference with moral rights to the maximum extent
permitted by applicable law in connection with all works protected by copyright and copyright neighboring rights (including any
and all literary, artistic, science, musical, graphic, photography, software and copyright database works) as listed and described
in Annex 6.(i) and is the sole legal and beneficial owner of the trademarks, trademark applications, industrial designs, industrial
design applications, manufacturing and trade secrets, inventions, patents, patent applications, technology, know how, and databases,
listed and described in Annex 6.(i) (“Intellectual Property”). Next Metrology owns no intellectual property
other than that listed in Annex 6(i). |
| (ii) | The Intellectual Property is free and clear from any Encumbrances. |
| (iii) | The Intellectual Property is used in good faith. |
| (iv) | None of the items and assets of the Intellectual Property, or any of its part, is licensed to third
parties or is part of a branch of a business as a going concern which is leased to third parties or has been assigned to third
parties or on which a third party is entitled to the usufruct, except for the licences indicated in Annex 6(iv). |
| (vi) | Except for the payment set forth in Annex 6 (vi), all fees, taxes and duties for all the registrations
and maintenance of all Intellectual Property have been duly and timely paid by Next Metrology. |
| (vii) | To the best of the Seller’s knowledge, the Intellectual Property does not infringe any third
party rights. |
| (viii) | There are no proceedings (including opposition proceedings before any authority or challenges)
concerning the Intellectual Property which are pending or, to the best of the Seller’s knowledge, threatened, and Next Metrology
has not entered into nor is it negotiating any settlement agreements regarding the Intellectual Property. Next Metrology is not
obligated to pay any royalty, license fee, charge or other amount with regard to any Intellectual Property. |
| (ix) | The Seller is not aware of any actual or potential
infringements of the Intellectual Property by any third party. |
| (x) | Except for economic and moral rights of employees of the Seller and / or Next Metrology who participated
in creation and / or development of Intellectual Property and who hold such rights by operation of law, no director, officer, shareholder,
employee, consultant, contractor, agent or other representative of Next Metrology owns or claims any rights in (nor has any of
them made application for) any Intellectual Property. |
| (xi) | Except for the item set forth in Annex 6 (xi), each software used by Next Metrology has been and
is duly licensed to it and all relevant considerations for such licences have been duly and timely paid by Next Metrology. |
| (xii) | Next Metrology has included a copyright notice on any product that embodies a copyright owned by
Next Metrology. |
| (xiii) | To the best of the Seller’s knowledge, Next Metrology’s software do not contain viruses,
worms, trojan horses, time bombs, backdoor access or any other adware, malware or spyware that could be used to interfere with
the functionality of such software. |
| (xiv) | No Person has (or had) a copy of, or has (or had) the right to access now or at some time in the
future, any source code for material Software; and there are no agreements under which Next Metrology has placed or is required
to place into escrow any such source code. |
| (xv) | No Intellectual Property was developed by Next Metrology using (in whole or in part) government
funding or facilities nor was it obtained from any Governmental Authority. Next Metrology has not granted to any Governmental Authority,
either expressly, or by any act or omission of Next Metrology, any unlimited, unrestricted or government purpose rights in the
Intellectual Property. |
| (xvi) | Next Metrology has taken all reasonable actions to protect its trade secrets included in the Intellectual
Property from unauthorized use or disclosure, and to maintain such trade secrets in confidence. To the knowledge of Seller, these
trade secret policies comply (x) with all contracts between Next Metrology and customers or other third parties; and (y) with applicable
law. To the knowledge of Seller, there have been no material breaches or deviations from these Trade Secret Policies, and no breach
of any Contract between the Seller and customers or other third parties with respect to Trade Secrets. |
| (xvii) | The source code for all material software is in a form: (A) that a programmer of ordinary skill
in the applicable programming language(s) is able to print, display, and read; (B) that includes source code listings, object code
listings, design details, flow charts, and related material that permit the software to be copied, maintained, updated, improved,
and compiled; and (C) that constitutes the preferred form of the source code for making modifications to such source code. |
| (xviii) | Except for the software set forth in Annex 6 (xviii), none of the software owned by, or developed
by or for the benefit of, Next Metrology contains or requires use of any “open source” code, shareware or other software
that does or may require disclosure or licensing of any such software or any other Intellectual Property owned by Next Metrology. |
| (xix) | All Intellectual Property (or any information and documents containing or materially relating to
the Intellectual Property) is in a form that a person skilled in the relevant art is able to use such Intellectual Property in
any manner permitted by applicable law and print, display and read such information or documents. |
| (xx) | With the exception set forth in Annex 6 (xx), Next Metrology has all rights to the domain names
listed and described in Annex 6(i) (the “Domain Names”). The Domain Names were registered and are used in good
faith, are free from any Encumbrances and all fees, taxes, duties for all the registrations and maintenance of the Domain Names
have been duly and timely paid. The Domain Names do not infringe on any third party rights (including any third party trademarks
or trade names) and Next Metrology is not aware of any actual or potential infringements arising in connection with the Domain
Names. There are no proceedings (including arbitration) concerning the domain names before any authority which are pending, or
to the best of the Seller´s knowledge, threatened, and Next Metrology has not entered into nor is it negotiating any settlement
agreements regarding the domain names. Next Metrology does not allow any third party access to any of the domain names. |
The contracts listed in Sections 4.02(a)(i)(aa)(i), 4.02(a)(i)(aa)(ii),
4.02(a)(i)(aa)(v), 4.02(a)(i)(aa)(vi) and 4.02(a)(i)(ee) of the Agreement are as of the day of Closing legal, valid, binding, enforceable,
and in full force and effect against Topmes.
| 8. | Material Adverse Change |
No Material
Adverse Change in Next Metrology has occurred between the Reference Date and the date this representation is made.
The Seller has entered into negotiations with the Buyer in relation
to the Transaction and have entered into this Agreement without using the services of any broker.
No representation or warranty
made by the Seller and none of the Appendices and Annexes contains or will contain any untrue statement of any fact, or omit any
fact, the omission of which would be misleading.
| 11. | Affiliate Transactions |
| (a) | Except as set forth in Annex 11 and the contracts listed in Section 7(i) of this Exhibit 7.02,
none of the Seller and its Affiliates are a party to, or the beneficiary of, any contract or material transaction relating to Next
Metrology, including any contract providing for any loans, advances, the employment of, furnishing of services by, rental of assets
from or to, or otherwise requiring payments to or from, any such persons. |
| (b) | Except as set forth in Annex 11 and the contracts listed in Section 7(i) of this Exhibit 7.02,
to the best of the Seller’s knowledge, Next Metrology, its directors, officers, employees or shareholders, their Affiliates,
and their relatives are a party to, or the beneficiary of, any contract or material transaction relating to Next Metrology, including
any contract providing for any loans, advances, the employment of, furnishing of services by, rental of assets from or to, or otherwise
requiring payments to or from, any such persons. |
Exhibit 10.5
SEVENTH AMENDMENT TO
CREDIT AGREEMENT AND CONSENT
THIS SEVENTH AMENDMENT
(“Amendment”) is dated as of January 29, 2015, by and between Perceptron, Inc. (“Company”) and Comerica
Bank (“Bank”).
RECITALS:
A. Company
and Bank entered into an Amended and Restated Credit Agreement dated as of November 16, 2010, as amended (“Agreement”).
B. Company
has requested that Bank consent to certain acquisitions as hereinafter set forth.
C. Company
and Bank desire to amend the Agreement as hereinafter set forth.
NOW, THEREFORE, the
parties agree as follows:
1. The
following definition set forth in Section 1 of the Agreement is amended to read as follows:
“Base
Tangible Net Worth” shall mean Thirty One Million Dollars ($31,000,000).
2. The
following definition is added to Section 1 of the Agreement to read as follows:
“Advance
Formula Agreement” shall mean that certain Advance Formula Agreement dated as of January 29, 2015 executed by Company for
the benefit of Bank, as may be amended, restated, supplemented or replaced from time to time.
3. Section
2.1 of the Agreement is amended and restated to read as follows:
“2.1 Bank
agrees to make Advances to Company at any time and from time to time from the effective date hereof until the Revolving Credit
Maturity Date, not to exceed Six Million Dollars ($6,000,000) in aggregate principal amount at any one time outstanding; provided
that the aggregate outstanding amount of Advances plus the Foreign Exchange Reserve shall never exceed the lesser of (a) Six Million
Dollars ($6,000,000) and (b) the borrowing formula under the Advance Formula Agreement. All of the Advances under this Section
2 shall be evidenced by the Revolving Credit Note under which Advances, repayments and readvances may be made, subject to the terms
and conditions of this Agreement, the Revolving Credit Note and the Advance Formula Agreement.”
4. The
“.” at the end of Section 7.1(f) is deleted and replaced with “; and”, and Section 7.1(g) is added to the
Agreement
“(g) upon
Company’s request for any Advance, and within thirty (30) days after and as of the end of each month thereafter until no
unpaid Advances shall be outstanding, agings of Company’s accounts receivable and accounts payable and a borrowing base report
of Company as of such time, each in form satisfactory to Bank, certified by a duly authorized officer of Company.”
5. Schedules
6.3 and 6.9 to the Agreement are amended and restated to read in the form of attached Schedules 6.3 and 6.9.
6. Company
has informed Bank that Company desires to acquire (a) through its wholly owned subsidiary, all of the equity interests of Coord3
Industries s.r.l., an Italian enterprise (“Coord3”), under the terms and conditions of the Agreement for the purchase
of 100% of the business of Coord3 Industries s.r.l. (“Coord3 Purchase Agreement”) dated January 29, 2015, among Coord3,
Angelo Muscarella, and Perceptron CMM, LLC, a wholly owned subsidiary of Company (the “Coord3 Acquisition”), and (b)
all of the equity interests of Next Metrology Software s.r.o., a Czech Republic entity (“Next Metrology”), under the
terms and conditions of that certain (a) Stock Purchase Agreement dated January 29, 2015, between Keith Mills and Company, (b)
Stock Purchase Agreement dated January 29, 2015 between Angelo Muscarella and Company, and (c) Share Purchase Agreement dated January
29, 2015 between Topmes s.r.o. and Company (collectively, the “Next Metrology Purchase Agreements”, and together with
the Coord3 Purchase Agreement, the “Purchase Agreements”) (the “Next Metrology Acquisition”, and together
with the Coord3 Acquisition, the “Acquisitions”). Section 8.4 of the Agreement prohibits the Acquisitions. Company
has requested that Bank consent to the Acquisitions. Bank consents to the Acquisitions, provided that, (i) the Acquisitions must
close on or before March 31, 2015, in accordance with the terms of the Purchase Agreements previously provided by Company to Bank,
(ii) upon consummation of the Acquisitions, all of the equity interests of Coord3 and Next Metrology shall be free and clear of
all liens and encumbrances, and (iii) no Default or Event of Default shall have occurred and be continuing both before and after
giving effect to the Acquisitions.
7. Company
hereby represents and warrants that, after giving effect to the amendments and consent contained herein, (a) execution, delivery
and performance of this Amendment and any other documents and instruments required under this Amendment or the Agreement are within
Company’s corporate powers, have been duly authorized, are not in contravention of law or the terms of Company’s Articles
of Incorporation or Bylaws, and do not require the consent or approval of any governmental body, agency, or authority; and this
Amendment and any other documents and instruments required under this Amendment or the Agreement, will be valid and binding in
accordance with their terms; (b) the continuing representations and warranties of Company set forth in Sections 6.1 through 6.5
and 6.7 through 6.12 of the Agreement are true and correct on and as of the date hereof with the same force and effect as made
on and as of the date hereof; (c) the continuing representations and warranties of Company set forth in Section 6.6 of the Agreement
are true and correct as of the date hereof with respect to the most recent financial statements furnished to the Bank by Company
in accordance with Section 7.1 of the Agreement; and (d) no Event of Default (as defined in the Agreement) or condition or event
which, with the giving of notice or the running of time, or both, would constitute an Event of Default under the Agreement, as
hereby amended, has occurred and is continuing as of the date hereof.
8. Except
as expressly provided herein, all of the terms and conditions of the Agreement remain unchanged and in full force and effect.
9. This
Amendment shall be effective upon (a) execution of this Amendment by Company and the Bank, (b) execution by the Guarantor of the
attached Acknowledgment of Guarantor, and (c) execution of an Advance Formula Agreement by Company and Bank, in form satisfactory
to Bank.
10. Company
shall reimburse Bank for all costs and expenses, including attorneys’ fees, incurred by Bank in connection with the preparation
of this Amendment and the documents, instruments and agreements executed in connection herewith.
[Remainder of Page Intentionally
Left Blank]
IN WITNESS the due
execution hereof as of the day and year first above written.
COMERICA BANK |
PERCEPTRON, INC. |
By: |
/s/Robert A. Rosati |
|
By: |
/s/ Keith R. Marchiando |
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Robert A. Rosati |
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Its: |
Vice President |
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Its: |
Chief Financial Officer |
[Signature Page to Seventh Amendment to
Credit Agreement and Consent (5073939)]
ACKNOWLEDGMENT OF GUARANTOR
The undersigned guarantor
acknowledges and agrees to the foregoing Seventh Amendment to Credit Agreement and Consent and confirms that the Guaranty dated
October 24, 2002, executed and delivered by the undersigned to the Bank, as amended, remains in full force and effect in accordance
with its terms.
January 29th, 2015
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PERCEPTRON GLOBAL, INC. |
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By: |
/s/ Sylvia M. Smith |
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Name: |
Sylvia M. Smith |
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Its: |
V.P. Controller |
[Acknowledgement of Guarantor (5073939)]
Exhibit 10.6
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ADVANCE FORMULA AGREEMENT |
This Advance Formula Agreement (the "Agreement")
is made as of January 29, 2015, by PERCEPTRON, INC. ("Debtor"), unto COMERICA BANK ("Bank").
Debtor executed and delivered unto Bank
that certain Master Revolving Note dated as of January 6, 2012, made in the principal amount of Six Million Dollars ($6,000,000)
(as the same may be amended, modified, extended, renewed, restated, substituted and/or replaced from time to time, and whether
in a greater or lesser amount, the "Note"). Debtor's liabilities, obligations and indebtedness under or pursuant to the
Note are secured pursuant to certain collateral documents entered into from time to time between Debtor and Bank, including, without
limit, that certain Security Agreement dated October 24, 2002, executed and delivered by Debtor unto Bank (as the same may be amended,
modified, extended, renewed, restated, substituted and/or replaced from time to time, the "Security Agreement").
1. FORMULA
LOANS. "Formula Loans" shall mean, collectively, loans, advances and other credit made or extended by Bank to or
in favor of Debtor under or pursuant to and evidenced by the Note, together with any letters of credit issued by Bank thereunder
or in connection therewith, subject to the terms and conditions of this Agreement, the Note, the Security Agreement and any other
agreement(s) between Debtor and Bank (as the same may be amended, modified, extended, renewed, restated, substituted and/or replaced
from time to time, the "Loan Documents").
2. ADVANCE
FORMULA. For and in consideration of Bank making the Formula Loans available to Debtor, Debtor warrants and agrees that the
aggregate unpaid principal balance of Debtor's indebtedness to Bank outstanding under the Formula Loans shall not at any time exceed
the Advance Formula. The "Advance Formula" shall mean the lesser of (i) the face amount of the Note, or (ii) 80% of Debtor's
Eligible Accounts, as hereinafter defined.
3. FORMULA
COMPLIANCE. If, at any time, the aggregate unpaid principal balance of Debtor's indebtedness to Bank outstanding under the
Formula Loans (plus, without duplication, the sum of the aggregate undrawn amounts of any such letters of credit and the aggregate
unreimbursed amount of all draws under such letters of credit honored by Bank) shall exceed the Advance Formula, Debtor shall immediately
pay Bank sums sufficient to reduce the Formula Loans by the amount of such excess, without the necessity of notice or demand by
Bank. The foregoing shall not limit, waive or otherwise affect any rights or remedies available to Bank, whether under this Agreement,
the Note, any other Loan Document(s), at law or otherwise.
4. ELIGIBLE
ACCOUNT. "Eligible Account" shall mean an Account (as hereinafter defined) arising in the ordinary course of Debtor's
business which meets each of the following requirements:
| (a) | it is not due and payable more than ninety (90) days
from the date of the original invoice or other writing evidencing such Account; and it is not owing more than ninety (90) days
after the date of the original invoice or other writing evidencing such Account; |
| (b) | it is not owing by an Account Debtor (as hereinafter
defined) who has failed to pay twenty five percent (25%) or more of the aggregate amount of its Accounts owing to Debtor within
ninety (90) days after the date of the respective invoices or other writings evidencing such Accounts; |
| (c) | it arises from the sale or lease of goods and such goods
have been shipped or delivered to the Account Debtor under such Account for unconditional acceptance by such Account Debtor; or
it arises from services rendered and such services have been performed by Debtor and unconditionally accepted by the Account Debtor; |
| (d) | it is evidenced by an invoice, dated not later than the
date of shipment or performance, rendered to such Account Debtor or some other evidence of billing acceptable to Bank; |
| (e) | it is not evidenced by any note, trade acceptance, draft
or other negotiable instrument or by any chattel paper, unless such note or other document or instrument previously has been endorsed
and delivered by Debtor to Bank; |
| (f) | it is a valid, legally enforceable obligation of the
Account Debtor thereunder, and is not subject to any offset, counterclaim or other defense on the part of such Account Debtor
or to any claim on the part of such Account Debtor denying liability thereunder in whole or in part; |
| (g) | it is subject to a first priority, properly perfected
security interest in favor of Bank, and it is not subject to any sale of accounts, any rights of offset, assignment, lien or security
interest whatsoever other than to Bank; |
| (h) | it is not owing by an officer, employee, partner, joint
venturer, agent, subsidiary or affiliate of Debtor, or by an Account Debtor that has common shareholders (unless (i) Debtor and
such Account Debtor are each publicly traded entities, or (ii) such common shareholder shall beneficially own less than five percent
(5%) of the outstanding common stock of Debtor), officers or directors with Debtor or is otherwise related to Debtor; |
| (i) | it is not owing by an Account Debtor which (i) does not
maintain its chief executive office in the United States of America or Canada, or is not organized under the laws of the United
States of America or Canada, or any state or province thereof, as applicable, or (ii) is the government of any foreign country
or sovereign state, or of any state, province, municipality or other instrumentality thereof; |
| (j) | it is not an Account owing by the United States of America
or any state or political subdivision thereof, or by any department, agency, public body corporate or other instrumentality of
any of the foregoing, unless all necessary steps are taken to comply with the Federal Assignment of Claims Act of 1940, as amended,
or with any comparable state or local law, if applicable, and all other necessary steps are taken to perfect Bank's security interest
in such Account; |
| (k) | it is not owing by an Account Debtor for which (i) the
death of the Account Debtor or any partner of the Account Debtor has occurred, (ii) the dissolution, liquidation, termination
of existence, insolvency or business failure of the Account Debtor has occurred, (iii) the appointment of a receiver for any part
of the property of the Account Debtor has occurred, (iv) an assignment for the benefit of creditors, the filing of a petition
in bankruptcy, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against the Account Debtor
has occurred; or (v) Debtor shall have received notice of the imminent occurrence of any of the foregoing with respect to such
Account Debtor; |
| (l) | it is not a contra Account or an Account owing by an
Account Debtor with respect to which Debtor is liable for good sold or leased or for services rendered by such Account Debtor; |
| (m) | it strictly complies with all Debtor's representations
and warranties to Bank set forth in this Agreement, the Security Agreement and any other agreement(s) between Debtor and Bank; |
| (n) | it is not an Account billed in advance, payable on delivery,
for consigned goods, for guaranteed sales, for unbilled sales, for progress billings, payable at a future date in accordance with
its terms, subject to a retainage or holdback by the Account Debtor or insured by a surety company; and |
| (o) | it is not owing by any Account Debtor whose obligations
Bank, acting in its sole discretion, shall have notified Debtor are not deemed to constitute Eligible Accounts; nor is it an Account
that Bank, acting in its sole discretion, shall have deemed to not constitute an Eligible Account. |
An Account which is at any time an Eligible
Account, but which subsequently fails to meet any of the foregoing requirements, shall forthwith cease to be an Eligible Account
and shall be immediately deducted from the calculation of Eligible Accounts.
For purposes of this Agreement, an “Account”
shall mean any right of Debtor to payment for goods sold or leased or for services rendered, but shall not include interest or
service charges; and “Account Debtor” shall mean the person who is obligated on or under an Account.
5. CERTIFICATES,
SCHEDULES AND REPORTS. Debtor will deliver to Bank from time to time such agings, schedules, certificates and reports as may
be required by the Loan Documents. Debtor will deliver to Bank from time to time such additional schedules, certificates and reports
respecting all or any of the Collateral (as defined in the Security Agreement), the items or amounts received by Debtor in full
or partial payment of any of the Collateral, and any goods (the sale or lease of which by Debtor shall have given rise to any of
the Collateral) possession of which has been obtained by Debtor, all and as to such extent as Bank may request. Any such aging,
schedule, certificate or report shall be executed by a duly authorized officer of Debtor and shall be in such form and detail as
Bank may specify. Any such schedule identifying any Eligible Account shall be accompanied (if Bank so requests) by a true and correct
copy of the invoice evidencing such Eligible Account and by evidence of shipment or performance.
6. INSPECTIONS;
COMPLIANCE. Debtor shall permit Bank and its designees from time to time to make such inspections and audits, and to obtain
such confirmations or other information, with respect to any of the Collateral or any Account Debtor as Bank is entitled to make
or obtain under the Security Agreement or other Loan Document(s), and shall reimburse Bank on demand for all costs and expenses
incurred by Bank in connection with such inspections and audits. Debtor shall further comply with all of the other terms and conditions
of the Security Agreement and each of the other Loan Documents. Notwithstanding any of the provisions contained this Agreement
or otherwise, Debtor hereby acknowledges and agrees that upon completion of any such inspection or audit Bank shall have the right
to modify the percentage of Eligible Accounts included within the Advance Formula under Section 2 above or the definition of Eligible
Accounts, in its sole and reasonable discretion, based on its review of the results of such inspection or audit.
7. DEFAULT.
Any failure by Debtor to comply with this Agreement shall constitute a default under the Formula Loans and under the Note, the
Security Agreement and the Indebtedness, as defined therein, and each of the other Loan Documents, and Bank shall be entitled to
exercise any and all rights and remedies available to it as a result of such default, whether under this Agreement, the Note, any
other Loan Document(s), at law or otherwise.
8. AMENDMENTS;
WAIVERS; OTHER DOCUMENTS. This Agreement may be amended, modified or terminated only in writing duly executed by Debtor and
Bank. No delay by Bank in requiring Debtor's compliance herewith shall constitute a waiver of such right. The rights granted to
Bank hereunder are cumulative, and in addition to any other rights Bank may have by agreement or under applicable law. This Agreement
shall supersede and replace in their entirety any prior advance formula agreements in effect between Bank and Debtor. Debtor acknowledges
and agrees that the Formula Loans are further subject to the terms and conditions of all other instruments, documents and agreements
evidencing, governing, securing or otherwise relating to the Formula Loans.
9. GOVERNING
LAW. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Michigan, without
regard to conflict of laws principles.
10. DISCRETIONARY/DEMAND
BASIS FORMULA LOANS. Notwithstanding anything to the contrary set forth in this Agreement, in the event that the Formula Loans
are at any time on a demand basis or advances are subject to the Bank's discretion, Debtor hereby acknowledges and agrees that
the Advance Formula set forth in Section 2 hereof is merely for advisory and guidance purposes and Bank shall not be obligated
to make any loans or advances under the Formula Loans, and, notwithstanding the terms of Section 3 above, Bank may at any time,
at its option, demand payment of any or all of the Formula Loans, whereupon the same shall become due and payable.
11. DILUTION
OF ACCOUNTS. In the event that Bank, at any time in its sole discretion, determines that the dollar amount of Eligible Accounts
collectable by Debtor is reduced or diluted as a result of discounts or rebates granted by Debtor to the respective Account Debtor(s),
returned or rejected Inventory or services, or such other reasons or factors as Bank deems applicable, Bank may, in its sole discretion,
upon five (5) business days’ prior written notice to Debtor, reduce or otherwise modify the percentage of Eligible Accounts
included within the Advance Formula under Section 2(a) above and/or reduce the dollar amount of Debtor’s Eligible Accounts
by an amount determined by Bank in its sole discretion.
12. JURY
WAIVER. DEBTOR AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED UNDER
CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT)
WITH COUNSEL OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY IN THE
EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE INDEBTEDNESS.
13. SPECIAL
PROVISIONS: None.
[the rest of this page intentionally left
blank]
IN WITNESS WHEREOF, this Agreement has
been duly executed as of the day and year first above written.
Debtor's Chief Executive Office Address: |
DEBTOR: |
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Perceptron, Inc. |
PERCEPTRON, INC. |
47827 Halyard Dr. |
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Plymouth, MI 48170 |
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By: |
/s/ Keith R. Marchiando |
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SIGNATURE OF |
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Its: |
Chief Financial Officer |
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TITLE |
Accepted and Approved:
COMERICA BANK
By: |
/s/ Robert A. Rosati |
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SIGNATURE OF ROBERT A. ROSATI |
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Its: Vice President
[Signature Page to Advance Formula Agreement]
Perceptron (NASDAQ:PRCP)
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から 8 2024 まで 9 2024
Perceptron (NASDAQ:PRCP)
過去 株価チャート
から 9 2023 まで 9 2024