2
SALE AND PURCHASE AGREEMENT
dated October 26, 2009
BETWEEN THE UNDERSIGNED
RECAR HOLDING SARL, a company incorporated under the laws of France, with a share capital of EUR50,000, having its registered office at 1bis, rue du Petit Clamart, 78140 Velizy Villacoublay, registered with the Commercial and Company Registry of Versailles under n° 424 603 850, duly represented by Mr. Philippe Dambrine acting in its capacity as gérant (general manager) and vested with all powers necessary in accordance with a shareholders' resolution set forth in Schedule 1 hereafter,
hereinafter called “the Vendor”,
of the one part,
AND
BINTEC COMMUNICATIONS AG, a company incorporated under the laws of Germany with a share capital of EUR 7,000,000 having its registered offices at SüdWest Park 94 D 90449 Nürnberg, registered with the Commercial Registry of Nürnberg under n° HRB 16054, duly represented by Mr. Gregor Krawczuk and Mr. Claus Wortmann, both acting in their capacity as members of the management board,
hereinafter called “the Purchaser”,
of the other part,
the above being collectively referred to as "the Parties" and individually as "a Party"
WHEREAS
A. DERIF SA (hereinafter called “the Company”) is a société anonyme whose registered office (siège) is at 6-8, rue de la Grande Lande, Parc d'activités de la Madeleine, 33174 Gradignan, France, and which is registered under n°325381978 at the Commercial and Companies Registry of Bordeaux. The Company is mostly known under its trade name, "CIREL Systèmes".
B. The capital of the Company is EUR7,750,000 (seven million seven hundred and fifty thousand) divided into 77,500 (seventy seven thousand and five hundred) shares of EUR100 (hundred Euros) each (hereinafter called “the Shares”). The Vendor is the owner of 77,500 (seventy seven thousand five hundred) Shares.
C. The principal activity of the Company is the development of PC based hardware and software connectivity solutions for computers.
D. Pursuant to the terms of a Letter of Intent signed between the Purchaser and Racer Finance SA, the parent company of the Vendor on September 28, 2009, the Vendor wishes to sell and the Purchaser wishes to purchase the whole, but not part only, of the Shares.
NOW IT IS HEREBY AGREED AS FOLLOWS:
Article 1. Sale and Purchase
1.1 The Vendor shall sell and the Purchaser shall purchase the whole, but not part only, of the Shares in accordance with the terms and conditions of this Agreement together with all rights now or hereafter attaching thereto, being understood that the Purchaser will be entitled to all dividends, whether or not distributed, together with such other rights accruing by ownership of the shares.
1.2 The Parties agree that, notwithstanding the fact that the effective transfer of the Shares shall happen only at the Completion Date (as defined in Article4.1 hereafter), the date de jouissance (the date of transfer of beneficial ownership) of the Shares for the Purchaser shall be effectively set on October1, 2009.
Article 2. Price and Payment Conditions
2.1 Principal
The price for the whole of the Shares (hereinafter called “the Price”) shall be made of:
(a) a sum of EUR50,000,000 (fifty million Euros),
to be paid by the Purchaser by a certified check issued by one of the first ranking French banks or the French branch of a first ranking German bank,
and
(b) the equivalent of EUR28,000,000 (twenty eight million Euros) in shares of the Purchaser, the number of which shall be established pursuant to the provisions of Article 2.3(a),
both to be paid, assigned and delivered to the Vendor on the Completion Date.
(c) and an additional consideration as set forth in 2.2 herebelow.
2.2 Additional consideration
(a) An additional consideration consisting, at the maximum, in the equivalent of EUR6,000,000 (six million Euros) in shares of the Purchaser, the number of which shall be established pursuant to the provisions of Article2.3(a), shall be paid by the Purchaser to the Vendor subject to the condition that the Agreed Targeted Sales Revenues for the fiscal year 2010 as defined in Schedule 2 have been achieved, in the following proportion:
(i) in case of a 100% achievement (as defined in Schedule 2), title to shares in the equivalent of EUR6,000,000 (six million Euros) shall be assigned and delivered to the Vendor,
(ii) in case of an achievement in proportion of 90% to 99% (as defined in Schedule 2), title to shares in the equivalent of EUR3,000,000 (three million Euros) shall be assigned and delivered to the Vendor,
(iii) in case of an achievement below 90% (as defined in Schedule 2), no additional consideration shall be paid to the Vendor.
(b) The actual degree of achievement of the Agreed Targeted Sales Revenues for fiscal year 2010 (hereafter, the "Achieved Sales Revenues") shall be notified by the Purchaser to the Vendor within three days of the certification by the Company's statutory auditor of the annual accounts of the Company for the fiscal year 2010, which accounts shall have to be established by the Company's board at the latest on February15, 2011. In the event the Achieved Sales Revenues are lower than the Agreed Targeted Sales Revenues and the Vendor advises the Purchaser within 20 (twenty) business days from the Purchaser's notice that it disagrees with the amount of the Achieved Sales Revenues appearing in the certified annual accounts of the Company, the Purchaser shall authorise the Vendor (and its representatives including its auditors) if it so wishes to have access to the books and records of the Company and shall provide all requested assistance and explanations to enable the Vendor to audit the Achieved Sales Revenues. In the event the Parties fail to reach an agreement within 40 (forty) business days from the Vendor's notice of disagreement, the Parties shall jointly appoint an independent auditor to establish the amount of the Achieved Sales Revenues (hereafter, the "Independent Auditor"). In the event the Parties cannot agree on the appointment of the Independent Auditor, such auditor shall be appointed by the President of the Commercial Court of Paris upon request of the most diligent Party. The decision of the Independent Auditor shall be binding on the Parties for the determination of the additional consideration due to the Vendor pursuant to Article 2.2(a).
(c) The payment of the additional consideration, if any, shall have to take place within 15 (fifteen) days of the final determination of the Achieved Sales Revenues as set forth in Article 2.2(b) above.
2.3 Purchaser's shares to be allotted to the Vendor
(a) The number of shares of the Purchaser to be allotted to the Vendor pursuant to the provisions of Articles 2.1(b) and 2.2(a) shall be calculated on the basis of the average mid market daily closing price between (but not including) September 28, 2009 and the Date of Execution of the Agreement (i.e. October 26, 2009). This average price shall be equal to the sum of the mid market daily closing prices, divided by the number of stock-exchange days between (but not including) September 28, 2009 and the Date of Execution of the Agreement (i.e. October 26, 2009). At the date of execution of the Agreement, this average price is nineteen point eighty six (19.86) Euros.
(b) The Purchaser shall transfer to the Vendor title to the shares mentioned in paragraph (a) above by means of a registration with the depositary appointed by the Vendor.
(c) Lock-up periods for the Purchaser's shares to be allotted pursuant to Article2.1(b):
The Vendor hereby expressly agrees that:
(i) for a period of twelve months (from date to date) from Completion Date, he shall refrain from selling 50% (fifty per cent) of the Purchaser's shares it will receive pursuant to Article2.1(b), and
(ii) for a period of six months (from date to date) from the Date of Execution, he shall refrain to sell the remaining 50% (fifty per cent).
Article 3. Conditions Precedent
3.1 Completion (as defined in Article 4 hereunder) is subject to the fulfilment of all the following conditions precedent:
(a) the completion of all formalities required by article52 of the German Aktiengesetz (as shown in Schedule 3) and in particular, the due approval of the transaction and of the subsequent share capital increase by the Purchaser (i) by the Purchaser's Supervisory Board (Aufsichtsrat) and (ii) by the Purchaser's Shareholders' General Meeting and (iii) the registration of this Agreement with the Commercial and Company Registry of Nürnberg.
In order to comply with Article 52 of the German Aktiengesetz, Purchaser commits to convene within a reasonable period of time a Shareholders Meeting after the date of signature of thisAgreement.
Within the two (2) business days following the receipt of the notarised minutes of the Shareholders Meeting, Purchaser must have applied for the registration of this Agreement with the Commercial and Company Registry of Nürnberg.
Any delay in the above-mentioned deadline shall result in the payment of a compensation to the Vendor for an amount of EUR 50,000 per day but not to prejudice any judgement otherwise prescribed by a relevant Court or arbitration tribunal.
(b) the delivery of a bank guarantee (hereafter, the "Bank Guarantee") in favour of the Purchaser, whereby the bank irrevocably undertakes to guarantee the payment, for a 3-year period from Completion Date, of any sums due to the Purchaser by the Vendor under Article 7 hereafter, in a maximal global amount of EUR10,000,000 (ten million Euros),
(c) a certificate signed by Vendor stipulating that the Company has been managed in compliance with stipulations contained in Article 5.
(d) a certificate issued and signed by the Purchaser evidencing that the Shares remunerating a part of the Price are validly issued, marketable and are not subject to any rights of third parties.
(e) a certificate issued and signed by Purchaser evidencing the determination of the value of BINTEC shares allotted to the Vendor in remuneration of part of the Price.
3.2 The above conditions may be waived in whole or in part by the party for whose benefit the condition was established.
3.3 The Parties shall use all reasonable endeavours to ensure that the above conditions are fulfilled as shall be reasonably practicable. The Purchaser will notify the Vendor of the fulfilment of the condition stipulated in article 3.1(a) above.
3.4 Subject to any waiver pursuant to Article 3.2 hereof, if the above conditions are not fulfilled by January 31, 2010, this Agreement shall become null and void and, in the absence of fraud or manifest bad faith which may have prevented the fulfilment of any of such conditions, neither Party shall have any claim against the other in respect thereof.
Article 4. Completion
4.1 The completion of the purchase of the Shares by the Purchaser (hereinafter, the "Completion") shall take place at the offices of S.G. Archibald in Neuilly sur Seine on a date to be agreed between the Parties (hereinafter called the "Completion Date") which shall be not later than 3 (three) business days following the fulfilment (or waiver) of the last to be fulfilled (or, as the case may be, waived) of the conditions precedent set out in Article3.1(a) or 3.1(b) provided that the Vendor is able to confirm at the Completion Date compliance with the condition set out in Article3.1(c) or, if and to the extent that it is not so able, that the Purchaser shall have waived compliance.
4.2 At the Completion Date, the Vendor shall deliver to the Purchaser:
(a) a duly executed share transfer form (ordre de mouvement) in respect of the whole of the Shares in favour of such person or persons as the Purchaser may specify;
(b) the shareholder accounts of the Company together with the Share Transfer Registry in both cases up to date to record the transfer made pursuant to the share transfer form referred to in Article 4.2(a) hereof;
(c) the Registries of the minutes of the board and shareholders’ meetings of the Company in both cases up to date together with the attendance book in respect of board meetings and the relevant attendance sheets and proxies in respect of shareholders’ meetings;
(d) if, and to the extent, requested by the Purchaser, the unconditional resignations of the directors (administrateurs) of the Company and of the Président Directeur-Général;
(e) if requested by the Purchaser and accepted by the Statutory Auditors, the unconditional resignation of the Statutory Auditor (Commissaire aux Comptes) of the Company and his substitute;
(f) the Bank Guarantee;
(g) all the check books of the Company issued under the name of the Company and a document providing for the cancellation of the banking authorisation granted to the management for signatures;
(h) a signed instrument containing the main elements of this Agreement in order to serve as a basis for the fulfilment of the formalities of Article 52 of Aktiengesetz.
(i) a share pledge agreement relating to the pledge of shares referred to in Article 7.2 herebelow.
(j) such other documents or instruments as the Purchaser may reasonably request for the valid completion of the operations provided for in this Agreement.
4.3 At Completion Date the Vendor shall procure the holding of such board and/or general shareholders’ meetings of the Company as the Purchaser may have requested upon sufficient notice period, to effect the appointment of such persons as the Purchaser may require as directors (administrateurs) of the Company and as Président Directeur-Général and Directeur Général of the Company.