ACQUISITION AGREEMENT
6 aprile 2006
Thermadyne Italia S.r.l.
(“Seller”)
SIGEFI Société par Actions Simplifiée,
acting on behalf of Siparex Italia, Fonds
Commun de Placement a Risque
and Giorgio Bassi
(“Buyer”),
ACQUISITION AGREEMENT
6 aprile 2006
Thermadyne Italia S.r.l.
(“Seller”)
SIGEFI Société par Actions Simplifiée, acting on
behalf of Siparex Italia,
Fonds Commun de Placement a Risque and Giorgio Bassi
(“Buyer”),
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Definitions
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Deed of
Transfer
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Release letters
(directors and statutory auditors)
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Directors and
statutory auditors
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Resignation
Bassi
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Bank
guarantee
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Representations
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Escrow
agreement “tax credit”
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Seller’s
Intellectual Property
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Exceptions
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Intellectual
property rights agreement
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SIGEFI Société par Actions Simplifiée,
Lyon, rue Vendome,139 — 69006,
acting on behalf of Siparex Italia, Fonds Commun de Placement a
Risque
To the kind attention of Stéphane Delplancq
Mr, Giorgio Bassi,
via del Parco 15/2,
Pianoro (Bologna)
Following our discussions regarding the above matter we propose the
following Acquisition Agreement:
THIS AGREEMENT, made as of this 6th
day of April, 2006, by and between Thermadyne Italia S.r.l., an
Italian corporation having its principal place of business at
Caronno Pertusella, Via Trieste 1169 (hereafter referred to as
“ Seller ”) and SIGEFI Société: par
Actions Simplifiée, a French corporation having its principal
place of business at Lyon, rue Vendome, 139 — 69006 acting on
behalf of Siparex Italia, Fonds Commun de Placement a Risque
(hereafter referred to as “Siparex”) and Giorgio
Bassi an Italian citizen residing at Pianoro (Bologna) via del
Parco 15/2 (hereafter referred to as “ Bassi ”)
(Siparex and Bassi hereafter referred to as “ Buyer
”),
WHEREAS, Tec.mo S.r.l., an Italian
corporation (società a responsabilità limitata)
having its principal place of business at Rastignano, (Pianoro),
Via Rio Fabbiani n° 8 and 8/A,which is wholly-owned by Seller
(the “Company”), is engaged in the business of
fabricating, distributing and selling torches, consumables and
spare parts of plasma and laser cutting equipment (the
“Business”); and
WHEREAS, the Company wholly owns the
following subsidiaries: Tec. mo Controls S.r.l. an Italian
corporation (società a responsabilità limitata)
having its principal place of business at Pianoro (BO), Via Bellini
15 and Thermal Dynamics Europe S.r.l. an Italian corporation
(società a responsabilità limitata) having its
principal place of business at Rastignano, (Pianoro), Via Rio
Fabbiani 8/A; and
WHEREAS, in light of his longstanding
position at the Company as Managing Director (Amministratore
Delegato), Bassi has a thorough knowledge of the Company in all
of its
aspects and of the Business, and has decided to team up with
Siparex in order to purchase the Company from Seller;
and
WHEREAS, the Seller desires to sell,
and Buyer desires to purchase, all of the issued and outstanding
capital of the Company, upon the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, in consideration of
the premises and of the mutual agreements set forth herein, the
parties hereto, intending to be legally bound, hereby act and agree
as follows:
Section 1.01 Definitions
. Capitalized terms used in this Agreement shall have the meanings
specified in this Agreement or in Exhibit 1.01 attached
hereto.
ARTICLE II — PURCHASE AND SALE OF THE QUOTAS
Section 2.01 Right of
Substitution . In accordance with Article 1401 of the
Italian Civil Code, Siparex and Bassi have the right to designate,
at the latest 5 days before Closing (as hereinafter defined) a
controlled affiliate, 50% by Siparex and 50% by Bassi (hereafter
referred to as “Newco”), to take ownership of
the Quotas (as hereinafter defined) at Closing (as hereinafter
defined) and for the performance of all duties and obligations of
the Buyer under this Agreement. The designation of such affiliate
shall not affect any of Buyer’s obligations under this
Agreement, including but not limited to payment obligations.
Therefore, in the Agreement the term Buyer shall mean Newco, should
Newco be designated by Siparex and Bassi to take ownership of the
Quotas at Closing pursuant to this Section 2.01.
Section 2.02 The Closing.
The closing of the transaction contemplated by this Agreement (the
“Closing”) shall take place at 3:00 p.m.,
Italian time, on April 11, 2006 following completion or waiver
of all conditions to Closing specified herein, at the offices of
Banca Intesa S.p.A. in Bologna, Italy, or at such other time or
place as shall be agreed upon in writing by the parties hereto (the
date on which the Closing shall occur shall be referred to herein
as the “Closing Date”). The transfer of the
Quotas to the Buyer will be perfected at Closing with the execution
by duly authorized representatives of the Seller and of the Buyer
of a deed of transfer (the “Deed of Transfer”),
substantially in the form attached hereto as
Exhibit 2.02, before a Notary Public pursuant to
Article 2470, Second Paragraph, of the Italian Civil Code. The
Parties hereby acknowledge and agree that the Deed of Transfer will
be executed only for purposes of transferring title to the Quotas
to the Buyer pursuant to Article 2470, Second Paragraph, of
the Italian Civil Code, without novation, modification or amendment
to this Agreement, which sets forth the entire understanding and
agreement between the Parties as to the matters covered herein.
Title to the Quota will be transferred to the Buyer effective as of
the Closing Date with all rights pertaining thereto, free and clear
of any Lien starting from the Closing Date.
Section 2.03 The Purchase
Price. Subject to the terms and conditions hereof, at the
Closing, the Seller hereby agrees to sell and transfer and the
Buyer agree to buy and receive
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from the Seller, all of the issued and outstanding quotas of the
capital of the Company (the “Quotas”) owned by
the Seller, for an aggregate amount of Seven Million Euros (
€
7,000,000.00) (the “Purchase Price”), minus the
Financial Debt should the Company be in a net debt position as of
March 31, 2006 (“Financial Debt Reference
Date”); provided that, no adjustments will be made to the
Purchase Price should the Company be in a cash position on the
Financial Debt Reference Date; and provided, further, that the
parties hereto hereby acknowledge and agree that for purposes of
this Agreement the Financial Debt of the Company shall be
calculated only up and until the Financial Debt Reference Date and
no other future changes in the Financial Debt will be taken into
account for purposes of this Agreement for any reason
whatsoever.
Section 2.04 Actions at
Closing . At the Closing, each of the Parties shall take or
cause to be taken the following actions:
(a) Seller shall (A) cause
ail directors of the Company and its Subsidiaries and all the
members of the board of statutory auditors of the Company and its
Subsidiaries to submit their respective resignations effective as
of the Closing Date on terms that all claims (if any) which they
may have against, respectively, the Company or the Subsidiaries are
unconditionally released or waived and substantially in the form
attached hereto as Exhibit 2.04 (a) hereto; and
(B) cause the Company and its Subsidiaries to pay promptly
after the Closing to the resigning directors and statutory auditors
any and all amounts due to them as directors’ and statutory
auditors’ compensation accrued through the Closing
Date;
(b) Each of the Seller and Buyer
shall execute the Deed of Transfer before the Notary and Buyer
shall pay (i) to the Seller the Purchase Price in accordance
with Section 4.01 hereof;
(c) Buyer shall deliver to
Seller a copy of the release letters in favor of the current
directors and statutory auditors of the Company and the
Subsidiaries in the form attached as Exhibit 2.04 (c)
hereto, duly executed by it;
(d) Each of the Seller and Buyer
shall cause a quotaholders’ meeting of the Company to be held
to resolve upon (A) the appointment of the new directors and
statutory auditors of the Company listed in Exhibit 2.04
(d) hereto as replacements of the directors and statutory
auditors resigned effective upon Closing; (B) the release and
discharge from any and all actions, claims or liabilities that the
Company may have against the resigning directors or statutory
auditors in connection with any activities carried out by such
directors or statutory auditors on behalf of the Company and its
Subsidiaries to the extent permitted by Law;
(e) Each of the Parties shall
execute and deliver, or cause to be executed and delivered, all
other documents, certificates, instruments or writings required to
be delivered or executed by such Party, including but not limited
to the Transaction Documents;
(f) Bassi shall deliver a letter
of resignation from his employment with the Seller and all of its
affiliates in the form attached hereto as Exhibit 2.0.4
(f).
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ARTICLE III — LIABILITIES
Section 3.01 Liabilities of
the Business . From and after the Closing, the Buyer shall be
responsible for, and shall honor and discharge when due all of the
obligations and liabilities of the Business, provided that Buyer,
the Company and Subsidiaries, as the case may be, shall be entitled
to indemnification pursuant to the terms and conditions set forth
under Article VIII hereunder.
ARTICLE IV — PAYMENT OF THE PURCHASE PRICE
Section 4.01 Purchase
Price . At the Closing Date, the Seller shall transfer all of
the issued and outstanding quotas representing the capital of the
Company to the Buyer, and the Buyer (i) shall pay the Purchase
Price by transferring immediately available funds (valuta fissa
a favore del beneficiario) to the bank account to be indicated
by the Seller in writing at least five (5) days before to the
Closing Date and (ii) the Seller shall deliver to the Buyer a
bank guarantee in the amount of Three Hundred and Fifty Thousand
Euros ( €
350.000,00), naming Siparex as sole beneficiary, having a face
validity until Thirty (30) months after the Closing Date
(“Expiration Date”) and substantially in the
form hereto attached as Exhibit 4.01 (“Bank
Guarantee”); provided that Siparex shall make recourse to
the Bank Guarantee only if Seller will default in satisfying cash
monetary judgements within twenty (20) business days from the
date of an arbitration award concerning such judgements and issued
by an arbitration panel of competent jurisdiction pursuant to this
Agreement; and provided, further, that after the expiration of
Eighteen (18) months from the Closing Date (“Early
Expiration”) with no claims still unresolved and awaiting
for the decree of enforcement (exequatur) issued by a Court of
competent jurisdiction, Siparex and the Seller shall instruct the
Bank to terminate the Bank Guarantee effective immediately after
the Early Expiration.
ARTICLE V — REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations
and Warranties of the Seller . The Seller represents and
warrants to Buyer as set forth in Exhibit 5.01 attached
hereto (the “Representations Exhibit”), which is
hereby incorporated into this Agreement and constitutes an integral
part of the same.
Section 5.02 Representations
and Warranties of the Buyer . The Buyer represents and warrants
to the Seller as set forth in Section 3 of the Representations
Exhibit.
Section 5.03 Bank
Guarantee . In consideration of Bassi’s top managerial
role in the Company since the constitution of the Company, Bassi
hereby acknowledges and accepts that the Bank Guarantee is open and
maintained exclusively to the benefit of Siparex.
ARTICLE VI — CONDITIONS PRECEDENT TO CLOSING
Section 6.01 Conditions
Precedent to Closing by the Buyer . The obligation of the Buyer
to purchase the Quotas is subject to the fulfillment, in all
material respects, or waiver by the Buyer, in its sole discretion,
of the conditions set forth in this Section 6.01 at or prior
to the
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Closing. Subject to the provisions of Section 9.03 hereof, if
the Buyer shall decline to consummate this Agreement in reliance
upon the immediately preceding sentence, it shall notify the Seller
of the specific grounds therefor, and (i) the Seller shall be
entitled to fulfill the unfulfilled conditions or to propose other
remedies in order to induce the Buyer to agree to proceed with the
Closing, and (ii) if such conditions are fulfilled or another
remedy is agreed to, the parties shall proceed with the
Closing.
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(a)
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All
of the agreements and covenants contained in this Agreement that
are to be complied with, satisfied and performed by Seller on or
before the Closing Date shall, in all material respects, have been
complied with, satisfied and performed.
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(b)
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All
of the representations and warranties made by Seller in this
Agreement shall be true and correct in all material respects both
on and as of the date of this Agreement and on and as of the
Closing Date.
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(c)
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The
Seller shall have duly executed and delivered to the Buyer the
Transaction Documents.
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(d)
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The
Buyer shall have received a certificate of Chairman of the Board of
Directors of the Seller, dated as of the Closing Date, certifying
as to the due authorization by the Seller of the execution and
delivery of this Agreement and any Transaction Documents to which
it shall be a party and the consummation of the transactions
contemplated hereby and thereby.
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(e)
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All
necessary Regulatory Approvals, and any other material consents,
approvals or agreements of any Person, if necessary or required
under the Applicable Law, necessary for the Closing shall have been
obtained.
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(f)
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No
action or proceeding shall have been instituted, or threatened to
be instituted, by or before any Governmental Authority, or by any
other third party, to restrain or prohibit the consummation of the
transaction contemplated hereby (other than actions or proceedings
affecting only general economic conditions).
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(g)
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The
Buyer shall have received a certificate of an officer of the
Seller, dated as of the Closing Date, certifying as to the
fulfillment of the conditions set forth in paragraphs (a) and
(b) and, with respect to actions or proceedings against such
party, paragraph (f), of this Section 6.01.
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(h)
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Newco shall have received at least
Seven Million Four Hundred Thousand Euros (
€ 7.400.000,00) from financing sources
to apply to the consummation of the Closing id est Four Million
Nine Hundred Thousand Euros (
€ 4.900.000,00) as bank loan and Euro
2.500.000,00 (two million five hundreds thousands) as capital
contribution by Siparex and Bassi.
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(i)
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The
Financial Statements for fiscal year 2005 of the Company shall have
been duly approved by the general meeting of the Company and
deposited with the competent Register of Companies
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Section 6.02 Conditions
Precedent to Closing by the Seller . The obligation of the
Seller to sell and transfer the Quotas owned by the Seller is
subject to the fulfillment, in all material respects, or waiver by
the Seller, in its sole discretion, of the conditions set forth in
this Section 6.02 at or prior to the Closing. Subject to the
provisions of Section 9.03 hereof, if the Seller shall decline
to consummate this Agreement in reliance upon the immediately
preceding sentence, it shall notify the Buyer of the specific
grounds therefor, and (i) the Buyer shall be entitled to
fulfill the unfulfilled conditions or to propose other remedies in
order to induce the Buyer to agree to proceed with the Closing and,
(ii) if such conditions are fulfilled or another remedy is
agreed to, the parties shall proceed with the Closing.
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(a)
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All
of the agreements and covenants contained in this Agreement that
are to be complied with, satisfied and performed by Buyer on or
before the Closing Date shall, in all material respects, have been
complied with, satisfied and performed, including, but not limited
to, the payment of the Purchase Price at the Closing
Date.
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(b)
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All
of the representations and warranties made by the Buyer in this
Agreement shall be true and correct in all material respects both
on and as of the date of this Agreement and on and as of the
Closing Date.
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(c)
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Newco, or Siparex and Bassi if Newco
is not designated to take ownership of the Quotas at Closing
pursuant to Section 2.01 herein, shall have duly executed and
delivered to the Seller the Transaction Documents to which it is
(or they are, as the case may be) a party;
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(d)
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The
Seller shall have received (i) a certificate of the Chairman
of the Board of Directors of Newco (if applicable) and Siparex,
dated as of the Closing Date, certifying as to the due
authorization by the Buyer of the execution and delivery of this
Agreement and any Transaction Documents to which it shall be a
party and the consummation of the transactions contemplated hereby
and thereby; and (ii) a certificate from Bassi confirming that
there is no legal impediment to the execution and delivery of this
Agreement or the other Transaction Documents by Bassi or to the
consummation of the transactions contemplated hereby or
thereby.
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(e)
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The
Seller shall have received a certificate of an officer of Newco, or
of Siparex and Bassi if Newco is not designated to take ownership
of the Quotas at Closing pursuant to Section 2.01 herein,
dated as of the Closing Date, certifying as to the fulfillment of
the conditions set forth in paragraphs (a) and (b) of
this Section 6.0.2.
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Section 7.01 Covenants of the
Seller . (a) The Seller covenants and agrees with the
Buyer that:
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(i)
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between the date of this Agreement
and the Closing, it will cooperate with the Buyer and any
Governmental Authority having jurisdiction in taking all actions
reasonably necessary to obtain any Regulatory Approvals, if
necessary under the Applicable Law, required in connection with the
transaction contemplated by this
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Agreement and any Transaction
Document, and will comply timely with all legal requirements which
may be imposed on it with respect to the Closing and will promptly
cooperate with and furnish information to the Buyer in connection
with any such legal requirements. Notwithstanding anything to the
contrary contained in this Agreement or any Transaction Document,
without Buyer’s prior written consent, neither the Seller nor
any of its Affiliates shall divest, demerger, spin off or otherwise
take or commit to take any step that limits its freedom of action
with respect to, or its ability to retain, any business unit
(including its existing business units and the business units of
the GROUP to be acquired hereunder), or any of the activities,
product lines or assets thereof, or (b) alter or restrict its
business or commercial practices, or the business or commercial
practices of any company of the GROUP, in any way.
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(ii)
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between the date of this Agreement
and the Closing, it will not take any action, or omit to take any
action, which action or omission would make any of the
representations or warranties of the Seller untrue or incorrect, in
any material respect, at the Closing Date, and will not undertake
any course of action inconsistent with this Agreement, or which
would render any of the conditions to Closing by the Buyer unable
to be satisfied at or prior to the Closing.
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(iii)
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between the date of this Agreement
and the Closing, it shall carry on the Business diligently and in
the ordinary course, consistent with past practice and shall
exercise reasonable best efforts to (a) prevent the loss or
material modification of any material contract with customers or
suppliers, (b) preserve the Business’s relations with
customers, suppliers and employees, and (c) otherwise prevent
the impairment of its goodwill. Except as contemplated by this
Agreement or with Buyer’s prior written consent, which shall
not be unreasonably withheld, neither the Company nor any
Subsidiary shall, and the Seller shall ensure that none of the
Company or the Subsidiaries, (aa) make any material change in
its business, ac
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