\n 10.2 Effect of Termination……………………………………………………. 40
\n ———————
\n 10.3 Risk of Loss……………………………………………………………. 40
\n ———— <\/p>\nARTICLE XI. POST CLOSING OBLIGATIONS; SURVIVAL OF REPRESENTATION…………………………………. 41<\/p>\n
11.1 Indemnification…………………………………………………………. 41
\n —————
\n 11.2 Survival of Representations………………………………………………. 44
\n —————————
\n 11.3 Rights of Set-Off……………………………………………………….. 44
\n —————–
\n 11.4 Pension Refund………………………………………………………….. 44
\n ————–
\n 11.5 Hagglunds Joint Venture………………………………………………….. 44
\n ———————–
\n 11.6 Skaana Receivable……………………………………………………….. 45
\n —————–
\n 11.7 Seller Guarantees……………………………………………………….. 45
\n —————– <\/p>\n
ARTICLE XII. MISCELLANEOUS…………………………………………………………………… 47<\/p>\n
12.1 Waiver…………………………………………………………………. 47
\n ——
\n 12.2 Notices………………………………………………………………… 47
\n ——-
\n 12.3 Assignment……………………………………………………………… 48
\n 12.4 Rights of Third Parties………………………………………………….. 48
\n ———————–
\n 12.5 Reliance……………………………………………………………….. 48
\n ——–
\n 12.6 Transfer Taxes; Title Costs; Expenses……………………………………… 48
\n ————————————-
\n 12.7 Construction……………………………………………………………. 48
\n ————
\n 12.8 Captions; Counterparts…………………………………………………… 49
\n ———————-
\n 12.9 Entire Agreement………………………………………………………… 49
\n —————-
\n 12.10 Amendments……………………………………………………………… 49
\n ———-
\n 12.11 Severability……………………………………………………………. 49
\n ————
\n 12.12 Publicity………………………………………………………………. 49
\n ———
\n 12.13 Arbitration…………………………………………………………….. 50
\n ———–
\n 12.14 Purchaser’s Remedies…………………………………………………….. 50
\n ——————–
\n<\/c><\/s><\/caption>\n<\/table>\n
iii<\/p>\n
STOCK PURCHASE AGREEMENT<\/p>\n
This STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into by
\nand between Celsius AB, registration number 556194-4652, a limited company
\nincorporated under the laws of Sweden (“Celsius” or the “Seller”) and United
\nDefense Industries, Inc., a Delaware corporation (“Purchaser”).<\/p>\n
RECITALS:<\/p>\n
WHEREAS, Seller owns of record and beneficially 500,000 shares (the
\n“Shares”) of the capital stock of Bofors Weapon Systems AB, registration number
\n556204-1904, a limited company incorporated under the laws of Sweden (“BWS” or
\nthe “Company”), which constitutes all of the issued and outstanding capital
\nstock of BWS (the “Shares”); and<\/p>\n
WHEREAS, upon the terms and subject to the conditions set forth
\nherein, Seller desires to sell to Purchaser, and Purchaser desires to purchase
\nfrom Seller the Shares, free and clear of any and all Encumbrances.<\/p>\n
AGREEMENT:<\/p>\n
NOW THEREFORE, in consideration of the premises and the mutual
\ncovenants and agreements contained herein, and other good and valuable
\nconsideration, the receipt and adequacy of which are hereby acknowledged, the
\nparties hereto agree as follows:<\/p>\n
ARTICLE I.
\n DEFINITIONS.<\/p>\n
1.1 Defined Terms. As used herein, the following terms shall have the
\n ————-
\nfollowing meanings:<\/p>\n
“Accounting Principles” shall mean the accounting principles used by
\nthe Company and its consolidated Subsidiaries in the preparation of their
\nhistorical financial statements including the December 31 Financial Statements,
\nwhich accounting principles conform to the requirements of GAAP, consistently
\napplied.<\/p>\n
“Action” shall mean any claim, action, suit, arbitration or
\nproceeding by or before any Governmental Authority, arbitrator or mediator.<\/p>\n
“Affiliate” shall mean with respect to any specified Person, any
\nother Person that, directly or indirectly, controls, is controlled by, or is
\nunder common control with, such Person, through one or more intermediaries or
\notherwise.<\/p>\n
“Agreement” shall have the meaning set forth in the Preamble.<\/p>\n
“Ancillary Agreements” shall mean the Escrow Agreement, Bofors
\nMissiles Manufacturing Agreement, the Intellectual Property Agreements, the
\nTransition Services Agreement, the CWS Supply Agreement, the Bofors Missiles
\nDevelopment Agreement, Bofors Carl Gustaf Manufacturing Agreement, the Bofors
\nCarl Gustaf Development Agreement,<\/p>\n
the Bofors Support Supply Agreement, the Bofors Test Center Proving Facilities
\nAgreement, Understanding Regarding Lease Agreement, the CTE\/CTV Proximity Fuse\/
\nProximity Fuse Programmer Transfer Agreement, the Bofors Test Center
\nStockholders Agreement, the Bofors Supply Stockholders Agreement, the India
\nGuarantee Agreement and the SAAB Guarantee Agreement.<\/p>\n
“Antitrust Laws” means any antitrust or competition laws promulgated
\nby the United States, Sweden, the European Union or any other Governmental
\nAuthority to whose jurisdiction the Company may be subject.<\/p>\n
“Assets” shall have the meaning set forth in Section 10.3.
\n ——- <\/p>\n
“Audited Financial Statements” shall have the meaning set forth in
\nSection 4.5.
\n——-<\/p>\n
“Adjustments” shall have the meaning set forth in Section 4.6.
\n ——-<\/p>\n
“Books and Records” shall mean all of the following as made and kept
\nby the Company or its Subsidiaries (a) all records and lists pertaining to the
\nBusiness, assets, liabilities, customers, suppliers or Personnel of the Company,
\n(b) all product, business and marketing plans of the Company, (c) all books,
\nledgers, files, reports, plans, drawings and operating records of every kind
\nmaintained by the Company and (d) all stock books, stock ledgers and corporate
\nminutes of the Company.<\/p>\n
“Bofors Test Center Stockholders Agreement” shall mean that certain
\nStockholders Agreement, dated as of December 22, 1999, by and among BWS, Bofors
\nCarl Gustaf AB, Bofors Missiles AB and Nexplo Bofors AB.<\/p>\n
“Bofors Support Stockholders Agreement” shall mean that certain
\nStockholders Agreement, dated as of December 22, 1999, by and among BWS, Bofors
\nCarl Gustaf AB and Bofors Missiles AB.<\/p>\n
“Business Day” shall mean any day that is not a Saturday, Sunday or
\nany other day on which banks are required or authorized by law to be closed in
\nStockholm, Sweden or New York, NY.<\/p>\n
“Bofors Carl Gustaf Development Agreement” shall mean that certain
\nDevelopment Agreement, dated as of May 30, 2000, by and between BWS and Bofors
\nCarl Gustaf AB.<\/p>\n
“Bofors Carl Gustaf Manufacturing Agreement” shall mean that certain
\nManufacturing Agreement, dated as of May 30, 2000, by and between BWS and Bofors
\nCarl Gustaf AB.<\/p>\n
“Bofors Missiles Development Agreement” shall mean that certain
\nDevelopment Agreement, dated as of May 18, 2000, by and between BWS and Bofors
\nMissiles AB.<\/p>\n
“Bofors Missiles Manufacturing Agreement” shall mean that certain
\nManufacturing Agreement, dated as of May 18, 2000, by and between BWS and Bofors
\nMissiles AB.<\/p>\n
2<\/p>\n
“Bofors Support Supply Agreement” shall mean that certain Supply
\nAgreement, dated as of February 24, 2000, by and between BWS and Bofors Support
\nAB.<\/p>\n
“Bofors Test Center Proving Facilities Agreement” shall mean that
\ncertain Proving Facility Agreement, dated as of February 24, 2000, by and
\nbetween BWS and Bofors Test Center AB.<\/p>\n
“BWS” shall have the meaning set forth in the Preamble.<\/p>\n
“BWS Capital Stock” shall have the meaning set forth in Section
\n ——-
\n4.3(a).<\/p>\n
“Celsius” shall have the meaning set forth in the Preamble.<\/p>\n
“Claims” shall have the meaning set forth in Section 11.1(a).
\n ——-<\/p>\n
“Closing” shall have the meaning set forth in Section 3.1.
\n ——- <\/p>\n
“Closing Balance Sheet” shall mean the audited consolidated balance
\nsheet of BWS and its consolidated Subsidiaries as of the Closing Date.<\/p>\n
“Closing Cash Consideration” shall have the meaning specified in
\nSection 2.2.
\n——-<\/p>\n
“Closing Date” shall have the meaning set forth in Section 3.1.
\n ——-<\/p>\n
“Closing Net Assets” shall have the meaning set forth in Section
\n ——-
\n2.4(a).<\/p>\n
“Company” shall have the meaning set forth in the Preamble.<\/p>\n
“Company’s Business” shall have the meaning set forth in Section
\n ——-
\n2.5(g).<\/p>\n
“Contracts” shall mean, collectively, all agreements, contracts,
\nsubcontracts, leases, purchase orders, memoranda of understanding and other
\nbinding contractual commitments (whether written or oral) to which the Company
\nis a party or by which any of its Assets may be bound, including those contracts
\nlisted on Schedule 4.10.
\n ——–<\/p>\n
“CTE\/CTV Proximity Fuse\/ Proximity Fuse Programmer Transfer
\nAgreement” shall mean that certain Transfer Agreement, dated as of June 14,
\n2000, by and between BWS and CTE and CTV.<\/p>\n
“CTV” shall mean CelsiusTech Vetronics AB, registration number
\n556169-8431, a Swedish limited company.<\/p>\n
“Current Products” shall have the meaning set forth in Section
\n ——-
\n2.5(a)(iii)<\/p>\n
“CWS” shall mean Celsius Weapons System AB, registration number
\n556258-2352, a Swedish limited company.<\/p>\n
“CWS Supply Agreement” shall mean that certain India Supply
\nAgreement, dated as of May 18, 2000 by and between CWS and the Company.<\/p>\n
3<\/p>\n
“December 31 Balance Sheet” shall mean the audited consolidated
\nbalance sheet of the Company and its consolidated Subsidiaries as of December
\n31, 1999.<\/p>\n
“December 31 Financial Statements” shall mean the December 31 Balance
\nSheet and the related audited statements of operations, changes in shareholders’
\nequity and cash flow for the one year period ended on December 31, 1999.<\/p>\n
“Disclosure Schedule” shall mean the schedules to this Agreement.<\/p>\n
“Earn-Out” shall have the meaning set forth in Section 2.2(b).
\n ——- <\/p>\n
“Earn-Out Period” shall have the meaning set forth in Section 2.2(b).
\n ——-<\/p>\n
“Earn-Out Liquidation Amount” shall have the meaning set forth in
\nSection 2.2(c).
\n——-<\/p>\n
“Earn-Out Threshold Amount” shall have the meaning set forth in
\nSection 2.2(b).
\n——-<\/p>\n
“Encumbrance” shall mean any mortgage, claim, charge, lien, easement,
\nright-of-way, covenant, condition, option, pledge, call, commitment, security
\ninterest, conditional sales agreement, title retention agreement, lease and any
\nother imperfection of title or restriction of any kind and nature, choate or
\ninchoate.<\/p>\n
“Employment Laws” shall have the meaning set forth in Section
\n ——-
\n4.18(a).<\/p>\n
“Environmental Laws” shall mean any and all applicable laws
\nregulating, relating to or imposing liability or standards of conduct concerning
\nprotection of the environment or of human health relating to exposure of any
\nkind of Hazardous Materials, as has been, or is, as of the date hereof, in
\neffect.<\/p>\n
“Escrow Account” shall have the meaning set forth in Section 11.7(b).
\n ——- <\/p>\n
“Escrow Agent” shall have the meaning set forth in Section 11.7(b).
\n ——-<\/p>\n
“Escrow Agreement” shall have the meaning set forth in Section
\n ——-
\n11.7(b).<\/p>\n
“Excluded Products” shall have the meaning set forth in Section
\n ——-
\n2.5(a)(ii) <\/p>\n
“Financial Obligations” shall have the meaning set forth in Section
\n ——-
\n11.7(b).<\/p>\n
“Fixtures” shall mean any fixtures, machinery, installations and
\nbuilding equipment located at or on any Real Property.<\/p>\n
“FMV” shall mean the Forsvarets Materielverk.<\/p>\n
“FPG” shall mean Forsakringsbolaget Pensionsgaranti, omsesidigt.<\/p>\n
“FSAs” shall have the meaning set forth in Section 4.16(d).
\n ——-<\/p>\n
4<\/p>\n
“GAAP” shall mean Swedish generally accepted accounting principles,
\nconsistently applied.<\/p>\n
“Governmental Authority” shall mean any national, multi-national,
\nmunicipal or local government (or any political subdivision of any of the
\nforegoing), including any governmental authority, regulatory or administrative
\nagency, governmental commission, department, board, bureau, court, tribunal,
\narbitrator or arbitral body.<\/p>\n
“Government Contract” shall mean any Contract in which the ultimate
\ncontracting party is a Governmental Authority that involves the performance of
\nservices or the delivery of goods by the Company.<\/p>\n
“Government Order” shall mean any order, writ, rule, judgment,
\ninjunction, decree, stipulation, determination or award entered by or with any
\nGovernmental Authority.<\/p>\n
“Hagglunds Joint Venture” shall mean H-B Utveckling AB, registration
\nnumber 556074-1364, a Swedish limited company.<\/p>\n
“Hazardous Materials” shall mean any hazardous substance, gasoline or
\npetroleum (including crude oil or any fraction thereof) or petroleum products,
\npolychlorinated biphenyls, ureaformaldehyde insulation, asbestos or
\nasbestos-containing materials, pollutants, contaminants, radioactivity, and any
\nother materials or substances of any kind, whether solid, liquid or gas, and
\nwhether or not any such substance is defined as hazardous under any
\nEnvironmental Law, that is regulated pursuant to any Environmental Law or that
\ncould give rise to Liability under any Environmental law.<\/p>\n
“Improvements” shall mean any right, title or interest in any
\nbuildings, facilities, other structures and improvements, building systems and
\nFixtures.<\/p>\n
“Indebtedness” of any Person shall mean all obligations of such
\nPerson (a) for borrowed money, (b) evidenced by notes, bonds, debentures or
\nsimilar instruments, (c) for the deferred purchase price of goods or services
\n(other than trade payables in the ordinary course of business), (d) under
\ncapital leases, or (e) in the nature of guarantees of the obligations described
\nin clauses (a) through (d) above of any other Person.<\/p>\n
“Indemnified Party” shall have the meaning set forth in Section
\n ——-
\n11.1(c).<\/p>\n
“Indemnitor” shall have the meaning set forth in Section 11.1(c).
\n ——-<\/p>\n
“Independent Accountant” shall have the meaning set forth in Section
\n ——-
\n2.4(c).<\/p>\n
“India Guarantee Agreement” shall mean that certain Agreement to be
\nentered into at the Closing by and among Seller, the Company and Purchaser in
\naccordance with Section 8.3.
\n ——-<\/p>\n
“Insurance Policies” shall have the meaning set forth in Section
\n ——-
\n4.23.<\/p>\n
“Intellectual Property” shall mean each material patent, registered
\nand unregistered trademark, service mark, trade dress, logo, trade name,
\ncopyright and registration or application for<\/p>\n
5<\/p>\n
any of the foregoing together with all material know-how, trade secrets,
\nconfidential information, software, technical information, process technology,
\nplans, drawings and blue prints owned by the Company or its Subsidiaries,
\nincluding any Intellectual Property owned by Seller that relates to the business
\nor operations of the Company or its Subsidiaries and which is used by the
\nCompany or the Subsidiaries.<\/p>\n
“Intellectual Property Agreements” shall mean, collectively, each of
\n(a) that certain Agreement Regarding the Sale of Patents and Patent
\nApplications, dated as of June 15, 2000 by and between Bofors AB and BWS; (b)
\nthat certain Patent License Agreement, dated as of June 15, 2000, by and among
\nBofors AB, Bofors Missiles AB and BWS; and (c) that certain Patent License
\nAgreement, dated as of June 15, 2000, by and between BWS and SAAB AB.<\/p>\n
“Law” shall mean all laws, statutes, rules, regulations, ordinances
\nand other pronouncements having the effect of law (including common law) of any
\nGovernmental Authority.<\/p>\n
“Liabilities” shall mean any direct or indirect liability,
\nIndebtedness, obligation, commitment, expense, claim, deficiency, guaranty or
\nendorsement of or by any Person of any type, whether accrued, absolute,
\ncontingent, matured, unmatured or other to be recorded in accordance with GAAP
\nand the Accounting Principles.<\/p>\n
“Loss Contract” shall mean any Material Contract for which the
\nCompany has accrued a loss on its financial statements or which the Company
\nreasonably expects, based on the Company’s knowledge as of the date hereof, to
\nresult in a loss.<\/p>\n
“Machinery and Equipment” shall have the meaning set forth in Section
\n ——-
\n4.17.<\/p>\n
“Material Adverse Effect” shall mean a material adverse effect on the
\nbusiness, assets, liabilities, condition (financial or otherwise), results of
\noperations or prospects of the Company and its Subsidiaries, taken as a whole.<\/p>\n
“Material Contract” shall have the meaning set forth in Section 4.10.
\n ——-<\/p>\n
“Minority Subsidiaries” shall mean Bofors Support AB and Bofors Test
\nCentre AB.<\/p>\n
“Net Assets” shall have the meaning set forth in Section 2.4(a).
\n ——-<\/p>\n
“Net Order Intake” shall have the meaning set forth in Section
\n ——-
\n2.2(c).<\/p>\n
“Payment Date” shall have the meaning set forth in Section 2.2(c).
\n ——-<\/p>\n
“Pension Schemes” shall have the meaning specified in Section
\n ——-
\n4.18(b).<\/p>\n
“Permits” shall have the meaning set forth in Section 4.8.
\n ——-<\/p>\n
“Person” shall mean any individual, corporation, partnership, limited
\nliability company, joint venture, association, joint-stock company, trust,
\nunincorporated organization, labor union or Governmental Authority.<\/p>\n
6<\/p>\n
“Personnel” shall have the meaning set forth in Section 4.13(b).
\n ——-<\/p>\n
“Post-Closing Adjustment” shall have the meaning set forth in Section
\n ——-
\n2.4(e).<\/p>\n
“Post-Signing Financial Obligations” shall have the meaning set forth
\nin Section 11.7(b).
\n ——-<\/p>\n
“Pre-Closing Environmental Matter” shall mean any environmental Claim
\nor any noncompliance with any Environmental Laws on the part of Seller, the
\nCompany, its Subsidiaries or any of their respective Affiliates or predecessors
\nin interest occurring or in existence on, or arising from actions occurring or
\nconditions existing prior to, the Closing Date.<\/p>\n
“Prime Rate” shall have the meaning set forth in Section 11.1(a).
\n ——-<\/p>\n
“Purchaser” shall have the meaning set forth in the Preamble.<\/p>\n
“Purchaser Indemnitees” shall have the meaning set forth in Section
\n ——-
\n11.1(a).<\/p>\n
“Qualified Order” shall have the meaning set forth in Section 2.2(c).
\n ——-<\/p>\n
“Real Estate Records” shall mean, to the extent in the possession or
\ncontrol of Seller or the Company, the real estate records, files, books,
\nblueprints, plans (as-built and otherwise), surveys, specifications, designs,
\ndrawings, and other data associated with the Real Property.<\/p>\n
“Real Property” shall have the meaning set forth in Section 4.25(a).
\n ——- <\/p>\n
“Real Property Lease” shall have the meaning set forth in Section
\n ——-
\n4.25(a).<\/p>\n
“Restricted Parties” shall have the meaning set forth in
\nSection 2.5(a).
\n——-
\n “SAAB Guarantee Agreement” shall mean that certain Guaranty Agreement
\ndated as of June 15, 2000 by and among Seller, SAAB AB and Purchaser.<\/p>\n
“Seller” shall have the meaning set forth in the Preamble.<\/p>\n
“Seller Indemnitees” shall have the meaning set forth in Section
\n ——-
\n11.1(b).<\/p>\n
“Shares” shall have the meaning set forth in the Recitals.<\/p>\n
“SPP” shall mean Fosakringsbolaget SPP.<\/p>\n
“Subsidiary” shall mean any corporation, partnership, limited
\nliability company, joint venture or other entity in which the Company, directly
\nor indirectly, holds fifty percent (50%) or more of the voting power of all
\nequity securities or other ownership interests of such entity, or over which the
\nCompany either directly or indirectly exercises actual control. For purposes of
\nthis Agreement, the Subsidiaries of the Company shall include the Hagglunds
\nJoint Venture and the Minority Subsidiaries, but shall exclude CWS and CTV.<\/p>\n
7<\/p>\n
“Target Net Assets” shall mean One Hundred Sixty Million Twenty-Nine
\nThousand (160,029,000) SEK.<\/p>\n
“Tax” or “Taxes” shall mean all taxes, estimated taxes, withholding
\ntaxes, assessments, levies, imposts, fees and other charges, including, without
\nlimitation, any interest, penalties, additions to tax or additional amounts that
\nmay become payable in respect thereof, imposed by any Governmental Authority,
\nwhich taxes shall include, without limitation, all income taxes, payroll and
\nemployee withholding taxes, unemployment insurance, social security, sales and
\nuse taxes, value-added taxes, excise taxes, franchise taxes, gross receipts
\ntaxes, occupation taxes, real and personal property taxes, stamp taxes, transfer
\ntaxes, workers’ compensation and other obligations of the same or of a similar
\nnature.<\/p>\n
“Tax Benefit” shall have the meaning set forth in Section
\n ——-
\n11.1(d)(viii).<\/p>\n
“Tax Returns” shall mean all reports, returns, declarations, claims
\nfor refund or statements of any kind or nature relating to Taxes, and any
\nschedule or attachment thereto and any amendment thereof.<\/p>\n
“Total Consideration” shall have the meaning set forth in Section
\n ——-
\n2.2.<\/p>\n
“Transactions” shall mean the transactions contemplated by this
\nAgreement and the Ancillary Agreements.<\/p>\n
“Transition Services Agreement” shall mean that certain Transition
\nServices Agreement by and between Seller and the Company dated as of
\nJune 13, 2000, together with the addenda thereto.<\/p>\n
“Understanding Regarding Lease Agreement” shall mean that certain
\nagreement by and between United Defense Industries, Inc. and Celsius AB, dated
\nas of the date hereof, whereby Celsius AB agrees to cause its wholly-owned
\nSubsidiary to extend the ground lease with respect to certain real property
\nleased by Bofors Test Centre AB.<\/p>\n
“VAT” shall mean Value Added Tax as defined in the Value Added Tax
\nAct, 1994:200.<\/p>\n
1.2 Certain Usage. As used herein the following additional terms
\n ————-
\nshall have the following meaning: <\/p>\n
The term “including” as used herein shall be read to mean “including,
\nwithout limitation.”<\/p>\n
The term “knowledge” as used herein, shall mean with respect to any
\nperson, those facts or circumstances actually known by such person. For purposes
\nof this Agreement, the knowledge of Per Ove Morberg, John Ershammar, Magnus
\nIngessen and Hakan Ahsberg, shall be imputed to Seller and the Company, and the
\nknowledge of Francis Finelli, David Wallestad and Kathryn Johnbull shall be
\nimputed to Purchaser.<\/p>\n
8<\/p>\n
ARTICLE II.
\n PURCHASE AND SALE OF SHARES.<\/p>\n
2.1 Purchase and Sale of Shares. Upon the terms and subject to the
\n ————————————————————–
\nconditions contained herein, Purchaser will acquire from Seller, and Seller will
\n——————————————————————————–
\nsell to Purchaser, the Shares free and clear of all Encumbrances.
\n—————————————————————-<\/p>\n
2.2 Total Consideration and Terms. The aggregate consideration for
\n —————————–
\nthe Shares to be purchased by Purchaser hereunder (the “Total Consideration”)
\nshall, subject to adjustment as provided in Section 2.4, consist of (i) One
\n ——-
\nHundred Eighty Million Four Hundred Thousand (180,400,000) SEK (the “Closing
\nCash Consideration”), and (ii) the Earn-Out. The Total Consideration shall be
\npayable as follows:<\/p>\n
(a) On the Closing Date, Purchaser shall pay to Seller by wire
\ntransfer of immediately available funds the Closing Cash Consideration.<\/p>\n
(b) Purchaser shall, or shall cause the Company to, pay to
\nSeller an earn-out royalty (the “Earn-Out”) with respect to each calendar year
\nfrom the Closing Date to December 31, 2004 (the “Earn-Out Period”) equivalent to
\ntwo percent (2%) of an amount equal to (i) the Net Order Intake during such
\ncalendar year (or with respect to 2000, such portion of the calendar year from
\nand after the Closing) minus (ii) One Hundred Million (100,000,000) SEK (or the
\nprorated portion thereof from and after the Closing during the 2000 calendar
\nyear) (the “Earn-Out Threshold Amount”). The Earn-Out shall be calculated and
\npaid in accordance with Section 2.2(c) below.
\n ——-<\/p>\n
(c) For purposes of this Agreement, “Net Order Intake” shall
\nmean, without duplication, the Company’s and Purchaser’s (or any of their
\nrespective Subsidiaries’) aggregate revenues actually collected from binding
\norders placed during the Earn-Out Period (each, a “Qualified Order”) for
\nproducts or services sold by the Company, Purchaser or any of their respective
\nSubsidiaries to the government of India pursuant to (i) the Supply Contract
\nand\/or License Agreements between the president of India and AB Bofors as of
\nMarch 1986, (ii) any subsequent agreement or order entered into for the purchase
\nof any products or spare parts for the FH77B of the type which may be purchased
\npursuant to the terms of the Supply Contract and\/or License Agreement described
\nin clause (i), or (iii) any agreement or order for the purchase and sale of the
\nhowitzer upgrade known as the FH77BD\/L45mkI (Indien) (whether such revenues are
\ncollected during the Earn-Out Period or at any time thereafter); provided,
\nhowever, that Net Order Intake shall not include any revenues earned by the
\nCompany or its Subsidiaries pursuant to the India Supply Agreement. A portion of
\nthe Earn-Out shall be paid each January 31st (each a “Payment Date”) by wire
\ntransfer of immediately available funds to an account designated by Seller to
\nPurchaser and the Company in writing until all amounts payable as a result of
\nthe Earn-Out have been paid in full. Prior to each Payment Date, the Company
\nshall deliver a written notice to the Seller setting forth the Qualified Orders
\nwhich accrued during the previous calendar year, the revenues collected from
\nQualified Orders during the previous calendar year and a calculation of the
\namount payable to Seller on such Payment Date (calculated in accordance with the
\nnext sentence). The amount payable on each such Payment Date shall be equal to
\n(A) 2% of (x) the aggregate amount of revenues from Qualified Orders actually
\ncollected by the Company during all calendar years during the Earn-Out Period
\npreceding such Payment Date, minus (y) the aggregate Earn-Out Threshold Amount
\n —–
\nfor all calendar years during the Earn-Out Period preceding such Payment Date,<\/p>\n
9<\/p>\n
minus (B) the aggregate amount paid by Purchaser or the Company to Seller
\n—–
\npursuant to this Section 2.2(c) prior to such Payment Date; provided, however,
\n ——- ——– ——-
\nin the event such amount is a negative number, the amount payable by Purchaser
\nor the Company to Seller on such Payment Date shall be zero and Seller shall
\nhave no obligation to pay Purchaser or the Company any amount. On or prior to
\nJanuary 31, 2007, Purchaser shall, or shall cause the Company to, pay to Seller
\nan amount (the “Earn-Out Liquidation Amount”) equal to the Earn-Out payable
\nhereunder with respect to all revenues from Qualified Orders that have not been
\ncollected prior to December 31, 2006, but that are reasonably likely to be
\ncollected at any time thereafter. In the event that any such Qualified Orders
\nare thereafter cancelled or facts and circumstances arise that make it
\nreasonably likely that the revenues therefrom will not be realized or realizable
\nby the Company, the Company shall notify the Seller in writing of such facts or
\ncircumstances and the amount of the revenues which will not be realized or
\nrealizable, and the Seller shall, within 10 Business Days after receiving such
\nwritten notice, refund the portion of Earn-Out Liquidation Amount paid by the
\nCompany with respect to such revenues.<\/p>\n
(d) Following each Payment Date, the Company shall provide
\nSeller’s independent accountants reasonable access to the management of the
\nCompany and the financial records of the Company and its Subsidiaries for the
\nprior calendar year for the sole purpose of verifying the amount of Qualified
\nOrders received by the Company and its Subsidiaries, the amounts collected with
\nrespect to Qualified Orders during such period and the calculation of the Earn-
\nOut payable with respect to such period. It shall be a condition to the
\nprovision of any information pursuant to this subparagraph (d) that Seller and
\nits independent auditor sign a confidentiality agreement reasonably satisfactory
\nto the Company with respect to any information so provided.<\/p>\n
2.3 Intercompany Cash Accounts. Prior to the Closing, Seller shall
\n ————————–
\ncause any and all amounts of cash or cash equivalents of the Company and any of
\nits Subsidiaries held by Seller or an Affiliate of Seller, to be transferred by
\nSeller or Seller’s Affiliate(s) to an account or accounts established solely for
\nthe Company or its Subsidiaries (as the case may be).<\/p>\n
2.4 Post-Closing Adjustment.
\n ———————–<\/p>\n
(a) Within ninety (90) calendar days following the Closing
\nDate, Seller shall prepare and deliver to Purchaser (i) the Closing Balance
\nSheet (together with the audit report thereon), and (ii) a calculation of the
\nNet Assets of the Company as of the Closing Date as set forth on the Closing
\nBalance Sheet (the “Closing Net Assets”). The Closing Balance Sheet shall be
\nprepared in accordance with GAAP, using the Accounting Principles used in the
\npreparation of the December 31 Financial Statements of the Company based upon
\nfinancial information provided by the Company and its Subsidiaries consistent
\nwith past practices. Notwithstanding the requirements of GAAP or the past
\npractices of Seller or the Company, the parties agree that the Closing Balance
\nSheet will reflect no upward or downward adjustments in reserves from amounts
\ncontained in the December 31 Balance Sheet except to the extent such adjustments
\nresult from changes in facts or circumstances occurring after December 31, 1999
\nor increases in profit or accrual rates on contracts in process from the rates
\nreflected on the December 31 Balance Sheet. During the preparation of the
\nClosing Balance Sheet by Seller and the period of any dispute provided for in
\nSection 2.4(c), Purchaser shall cause the Company, its Subsidiaries and their
\n——-
\naccountants to provide such reasonable access to the Company, its Books and
\nRecords (including work papers) and Personnel<\/p>\n
10<\/p>\n
as may be necessary, to permit Seller and PricewaterhouseCoopers to prepare and
\naudit the Closing Balance Sheet and to investigate the basis of any such
\ndispute. “Net Assets” as of any date shall mean (x) the assets of the Company
\nand its consolidated Subsidiaries as of such date, minus (y) the Liabilities of
\nthe Company and its consolidated Subsidiaries as of such date.<\/p>\n
(b) Purchaser may dispute any amounts reflected on the Closing
\nBalance Sheet or Seller’s calculation of the Closing Net Assets, but only on the
\nbasis that the amounts reflected on the Closing Balance Sheet were not recorded
\nin accordance with GAAP or are inconsistent with the Accounting Principles used
\nin the preparation of the December 31 Financial Statements or were otherwise not
\nprepared in accordance with Section 2.4(a). Purchaser shall notify Seller in
\n ——-
\nwriting of each disputed item, specifying the amount of each item in dispute and
\nsetting forth in reasonable detail the basis for each item in dispute, within
\nforty-five (45) calendar days of Purchaser’s receipt of the Closing Balance
\nSheet. If Purchaser has not notified Seller of any such dispute within such
\nforty-five (45) day period, then the Closing Balance Sheet shall be deemed to be
\nfinal and conclusive on the parties hereto, and any amount payable under Section
\n ——-
\n2.4(d) shall be paid by Purchaser or Seller, as the case may be in accordance
\nwith Section 2.4(d).
\n ——-<\/p>\n
(c) In the event of such a dispute, Purchaser and Seller shall
\nnegotiate in good faith to reconcile their differences. If such dispute has not
\nbeen resolved within thirty (30) days after Seller’s receipt of notice of such
\ndispute (or such longer period as they may mutually agree), Seller and\/or
\nPurchaser shall submit the item(s) remaining in dispute to an internationally
\nrecognized independent accountant selected by mutual agreement of Purchaser and
\nSeller or, in failure of such agreement, an independent “Big Five” accounting
\nfirm selected by the chairman of the London Court of International Arbitration
\n(the “Independent Accountant”), which shall, as promptly as practical but in no
\nevent later than thirty (30) calendar days after such submission, determine and
\nreport in writing upon such remaining disputed item(s) based solely upon the
\nwritten submissions of the parties. Such determination and report shall be
\nfinal, binding and conclusive on the parties hereto. The fees and disbursements
\nof the Independent Accountant shall be paid by Purchaser and by Seller in
\nproportion to the amount the Seller or Purchaser has put in dispute on which the
\nIndependent Accountant has found in favor of such party.<\/p>\n
(d) On the date which is three (3) Business Days after the
\nfinal determination of the Closing Net Assets in accordance with this Section
\n ——-
\n2.4, Seller or Purchaser, as the case may be, shall make any payment due, in
\naccordance with the terms of this subsection (d). If the Post-Closing Adjustment
\n(as defined below) is a negative number, Seller shall pay to Purchaser in
\nimmediately available funds an amount equal to the absolute value of the Post
\nClosing Adjustment. If the Post-Closing Adjustment is a positive number,
\nPurchaser shall pay (or shall cause the Company to pay) to Seller in immediately
\navailable funds an amount equal to the Post-Closing Adjustment. In the event
\nSeller fails to make any payment due and owing to Purchaser hereunder, Purchaser
\nshall have the right but not the obligation to offset such amounts against any
\namounts owing to Seller from the Company pursuant to Section 2.4(c). Purchaser
\n ——-
\nand Seller agree that the Total Consideration shall be deemed to be increased by
\nall payments made by Purchaser to Seller and the Total Consideration shall be
\ndeemed to be decreased by all payments made by Seller to Purchaser.<\/p>\n
(e) The “Post-Closing Adjustment”, which may be positive or
\nnegative, shall equal the Closing Net Assets less the Target Net Assets.<\/p>\n
11<\/p>\n
2.5 Noncompetition Agreement.
\n ————————<\/p>\n
(a) Seller agrees that, for a period of five (5) years following
\nthe Closing Date, it will not, and it will cause each of its Affiliates listed
\non Schedule 2.5(a) (collectively, the “Restricted Parties”) not to, engage,
\n ——–
\ndirectly or indirectly, anywhere in the world in any line of business within the
\n“Company’s Business” (as defined in Section 2.5(g) below), or to acquire any
\nother business entity where the major reason for the acquisition is to compete
\nwith the Company; provided however, that the Restricted Parties may:
\n —————-<\/p>\n
(i) manufacture, market and sell the Strix munitions for
\nmortars when done in cooperation with BWS in accordance with the SAAB\/BWS
\nCooperation Agreement regarding Strix;<\/p>\n
(ii) manufacture, retrofit, install, repair, overhaul,
\nservice, market and sell “Excluded Products” (as defined herein). In no event
\nshall Excluded Products be interpreted to mean a complete vehicular system. The
\nparties recognize and agree that all ground vehicle platforms are exclusively
\nwithin the Company’s Business and that this clause shall not be deemed to
\ninclude the right for the Restricted Parties to manufacture, retrofit, install,
\nrepair, overhaul, service, market and sell Ground Combat or Support Vehicle
\nSystems. The term “Excluded Products” shall mean the following:<\/p>\n
(A) LVS System;
\n (B) Laser rangefinder;
\n (C) IR cameras;
\n (D) DIRSI system;
\n (E) ARTE 725 system and its succeeding system;
\n (F) ELMA grenade system with its successor the
\n ASW Alecto Systems;
\n (G) Deception torpedoes;
\n (H) Firecontrol system for 9 LV family of naval
\n guns;
\n (I) Sights and fire control systems for (1)
\n combat vehicles (2) main battle tanks and
\n (3) anti aircraft guns from caliber 20mm
\n and above, including vehicle mounted as
\n well as stationary applications;
\n (J) Army C4I-systems on all levels;
\n (K) Electronic systems for detection and
\n clearance of land mines;
\n (L) Integrated defensive aid systems for
\n vehicles;
\n (M) Electronic subsystems and components for
\n vehicle systems;
\n (N) SKER System and its succeeding system; and
\n (O) RIA;<\/p>\n
(iii) manufacture, market and sell any products that: (A) are
\nin production by the Restricted Parties as of the Closing Date; and (B) do not
\ncompete with the<\/p>\n
12<\/p>\n
Company’s Business, as of the Closing Date (each, a “Current Product” and
\ncollectively, the “Current Products”).<\/p>\n
(b) Upon determination, through mutual agreement or by arbitration
\nin accordance with this Agreement, that the Restricted Parties are, directly or
\nindirectly, competing with the Company’s Business by developing, manufacturing,
\nmarketing, selling or servicing any products that were not (i) Current Products
\nof the Restricted Parties as of the Closing Date, (ii) Excluded Products, or
\n(iii) specifically addressed elsewhere in this Section 2.5, the Restricted
\nParties agree to cease immediately all activities related to such competing
\nproducts.<\/p>\n
(c) Seller shall be entitled to engage in the development,
\nmanufacture, retrofit, installation, repair, overhaul, engineering, design,
\nservice, marketing and sale of any component part or subsystem that may fall
\nwithin the Company’s Business, but that is substantially the same as classes of
\nproducts or services that primarily are sold commercially by Seller for non-
\nmilitary uses.<\/p>\n
(d) If at any time the Company or its successor(s) should decide
\nthat it no longer desires to pursue intelligent and brilliant ammunition, the
\nRestricted Parties or their successors(s) will be given the right of first
\nrefusal to acquire access to, and permission to use solely for such purpose, the
\nIntellectual Property of the Company related to intelligent and brilliant
\nammunition. Similarly, if at some point the Restricted Parties or their
\nsuccessor(s) should decide that they no longer desire to pursue intelligent and
\nbrilliant ammunition, the Company or its successor(s) will be given the right of
\nfirst refusal to acquire access to, and permission to use solely for such
\npurpose, the Intellectual Property of Bofors Missiles AB or its successors
\nrelated to intelligent and brilliant ammunition .<\/p>\n
(e) If the Company decides not to offer its products or
\ncapabilities in response to a specific request, within the Company’s Business,
\nfrom any Swedish Governmental Authority, the Company will enter into
\nnegotiations with the Restricted Parties to seek a fair, reasonable and joint
\napproach to the satisfaction of said request, failing which, either party may
\nrequest that the parties arbitrate, in accordance with this Agreement. This
\nobligation shall apply “mutatis mutandis” for specific opportunities, whereby
\nthe Restricted Parties decide not to offer their products or capability in
\nresponse to a specific request of any Swedish Governmental Authority.<\/p>\n
(f) Seller may continue to develop, market and sell man-portable
\nunguided rocket systems, including the Carl Gustaf System, the AT4 System, the
\nMBT LAW System, and their subsystems, to include warheads and ammunition and
\nfuture derivatives thereof.<\/p>\n
(g) For purposes of this Agreement, the “Company’s Business” shall
\nbe to engage in the development, manufacture, retrofit, installation, overhaul,
\nrepair, engineering, design, service, sale and marketing of:<\/p>\n
(i) guns and unguided rocket systems, including (A)
\ncarriers, (B) launchers with chemical, electrothermal and\/or electromagnetic
\nlaunching and (C) integrated C4I systems, including gun control, fire control,
\nballistic computers and ammunition programming systems for the aforesaid
\nsystems;<\/p>\n
13<\/p>\n
(ii) ammunition for guns and unguided rocket systems
\nincluding (A) chemical, electrothermal and electromagnetic propulsion, (B)
\nkinetic, chemical and\/or electromagnetic warheads, (C) sensorfuzed sub-
\nmunitions, (D) sensors, (E) fuzes, (F) trajectory control systems, and (G)
\nintelligent and brilliant ammunition for the aforementioned weapon systems,
\nincluding without limitation, BONUS, TCM, and 3P;<\/p>\n
(iii) ground combat vehicle systems and support vehicle
\nsystems, to include all subsystems, for military and other applications;<\/p>\n
(iv) Landmine Clearance Equipment;<\/p>\n
(v) warheads with graded effect for guns and unguided rocket
\nsystems;<\/p>\n
(vi) ABRAHAM Technology (ABRAHAM Technology is currently
\nfocused on the development of an anti-aircraft defense system intended to meet
\nthe threat from precision guided weapons such as cruise missiles and attack
\nmissiles. The basis of the technology is a long range laser sensor coupled with
\na warhead with directed effect. The warhead has a number of preprogrammable
\nand\/or trajectory adaptable lethality modes such as splinters, shape charge and
\nelectromagnetic pulse. ABRAHAM, in system form, may be deployed on or close to a
\nprotected object. The platform could be a ground vehicle, an aircraft, a ship, a
\ncontainer module or some other platform. ABRAHAM technology will be applied in
\nmany other areas as protection systems of different kinds.);<\/p>\n
(vii) support and test equipment, training equipment, support
\nsystems, maintenance, repair, service and assistance, facilities, supply
\nsupport, PHS&T and documentation for the aforementioned businesses and products;
\nand<\/p>\n
(viii) other applications, in addition to military applications
\nfor the above listed products and services.<\/p>\n
(h) If any court of competent jurisdiction shall finally hold that
\nthe time, territory or any other provision set forth in this Section 2.5
\n ——-
\nconstitutes an unreasonable restriction, such provision shall not be rendered
\nvoid, but shall apply as to such time, territory, or to such other extent as
\nsuch court may determine constitutes a reasonable restriction under the
\ncircumstances involved.<\/p>\n
(i) The parties acknowledge that the restrictions contained in this
\nSection 2.5 are reasonable and necessary to protect the legitimate interests of
\n——-
\nSeller and Purchaser. Seller acknowledges that Purchaser shall be entitled to
\ninjunctive relief to enforce the terms and provisions of this Section 2.5.
\n ——- <\/p>\n
(j) Seller further agrees that it will not, for a period commencing
\non the date hereof and ending two (2) years following the Closing Date,
\nknowingly actively seek the employment of or hire the employees of Purchaser or
\nthe Company.<\/p>\n
(k) To the extent the Company, in the conduct of its existing
\nbusiness as of the effective date of this Agreement, infringes upon any
\nintellectual property rights of Seller not<\/p>\n
14<\/p>\n
otherwise licensed to the Company, Seller agrees to grant to Company freedom
\nfrom suit with regard to such rights and Seller hereby grants an exclusive
\nlicense to use such intellectual property in the field of use of the Company’s
\nBusiness. With respect to BONUS, 3P and TCM, the parties recognize that Company
\nmay require additional technical information in order to fully incorporate such
\nproducts into Company’s existing business at the Closing. Seller agrees, upon
\nreasonable notice and at the convenience of the parties, to permit access to and
\nuse of such information only for such products within the Company’s Business.<\/p>\n
(l) Seller agrees that the Company owns all of the intellectual
\nproperty rights for the 3P Ammunition family, including without limitation, (i)
\nall of its components, to include the proximity fuze programmer (PFP) and the
\nelectronic components of the fuze and (ii) all test equipment and production
\ntooling and equipment. Additionally, Seller agrees that the Company has the sole
\nright to manufacture or have manufactured the 3P Ammunition Family. Seller
\nfurther agrees to work together with the Company to (w) document the Company’s
\nownership of 3P, (x) complete the transfer of competence from Seller to the
\nCompany, (y) provide the necessary data package to the Company and (z) complete
\na definitive agreement to this end prior to Closing, completion of such
\nagreement to be a Closing condition.<\/p>\n
(m) Seller acknowledges that the Restricted Parties do not
\nconstitute all of the Affiliates of Seller and therefore agrees that it shall be
\na violation of this Section 2.5 for any personnel, assets or intellectual
\nproperty employed, owned or used by Seller or any Restricted Party as of the
\ndate hereof to engage in or be used for the purpose of conducting any activity
\nprohibited under this Section 2.5 by or through any Affiliate of Seller which is
\nnot a Restricted Party.<\/p>\n
(n) Purchaser and Seller agree that the amount of the Total
\nConsideration allocable to the terms and provisions of this Noncompetition
\nAgreement shall be One Million (1,000,000) SEK.<\/p>\n
2.6 Disclosure Schedule. The parties hereto acknowledge that, as of the
\n ——————-
\ndate hereof, the Disclosure Schedules to this Agreement (other than Schedules
\n2.5(a), 6.2, 11.7(a) and 11.7(b)) have not been completed and that such
\nDisclosure Schedules are in integral part of this Agreement. Accordingly, Seller
\nagrees that, not later than June 23, 2000, Seller shall deliver to Purchaser a
\ncertified complete set of Disclosure Schedules for Purchaser’s review. Purchaser
\nshall have five Business Days from its receipt of such Disclosure Schedule to
\nnotify Seller of any objection to the form or content of any of the materials
\ncontained therein, which objection may be made in its sole and absolute
\ndiscretion. If Purchaser delivers written notice of any objections, Purchaser
\nand Seller agree to negotiate in good faith with respect to the portions of the
\nDisclosure Schedule that are the subject of Purchaser’s objection. If after 10
\nBusiness Days of the date on which Purchaser delivers written notice with
\nrespect to such objections, the parties are unable to resolve such objections to
\ntheir mutual satisfaction, then upon written notice to the other party, either
\nparty may terminate this Agreement without any further obligation to the other
\nparty.<\/p>\n
ARTICLE III.
\n CLOSING.<\/p>\n
3.1 Closing. The consummation of the purchase and sale of the Shares
\n ——-
\n(the “Closing”) shall take place at 10:00 a.m., local time, on the fifth (5th)
\nBusiness Day following the<\/p>\n
15<\/p>\n
satisfaction of the conditions to the obligations of the parties set forth in
\nSection 9.1 hereof, at the offices of Rydin & Carlsten Advokatbyra AB,
\n——-
\nNorrmalmstorg 1, S-111 87 Stockholm, or at such other time or place as Seller
\nand Purchaser may agree in writing (the day on which the Closing takes place
\nbeing referred to herein as the “Closing Date”).<\/p>\n
3.2 Seller’s Closing Deliveries. At the Closing, Seller shall deliver
\n —————————
\nto Purchaser (a) stock certificates evidencing the Shares, duly endorsed in
\nblank or accompanied by a stock power duly executed in blank, and (b) the other
\ndocuments required to be delivered by Seller pursuant to Article IX hereof.
\n ——-
\n 3.3 Purchaser’s Closing Deliveries. At the Closing, (a) Purchaser shall
\n ——————————
\npay to Seller the Closing Cash Consideration (as provided in Section 2.2 hereof)
\n ——-
\nand (b) Purchaser shall deliver to Seller the other documents required to be
\ndelivered by Purchaser pursuant to Article IX hereof.
\n ——-<\/p>\n
3.4 Appointment of Directors. At the Closing, the Purchaser shall cause
\n ————————
\ngeneral meetings and board meetings to be held in the Company allowing the
\nPurchaser to appoint new directors and deputy directors and to appoint company
\nsignatories. The Purchaser shall prepare the minutes of said meetings as well as
\nthe necessary ancillary documentation and the Purchaser shall cause the
\ndocumentation to be submitted to the Patent and Registration Office or any other
\nrelevant authority for registration immediately following said meetings.<\/p>\n
3.5 Director Discharge from Pre-Closing Liabilities. At the next annual
\n ———————————————–
\ngeneral meeting of shareholders of the Company, the Purchaser undertakes to
\ngrant those directors in the Company who have retired discharge from liability
\nfor their administration until the Closing, however, only provided that, in the
\nauditor’s reports for the relevant period, the Company’s auditors do not
\nrecommend against such discharge.<\/p>\n
ARTICLE IV.
\n REPRESENTATIONS AND WARRANTIES
\n OF THE SELLER<\/p>\n
Seller hereby makes the representations and warranties set forth below,
\nexcept as otherwise set forth on the Disclosure Schedule, which representations
\nand warranties are as of the date hereof, and will be, as of the Closing Date,
\ntrue and correct. Other than the representations and warranties set forth in
\nSections 4.2(c), 4.3(b) and 4.15(a) and (b), all representations and warranties
\nmade by Seller herein with respect to the Hagglunds Joint Venture are made to
\nthe best of Seller’s knowledge and Seller shall be liable only for a breach
\nthereof if Seller has actual knowledge that such representation and warranty is
\nnot true and correct as of the date hereof and as of the Closing Date.<\/p>\n
4.1 Authority. Seller has full corporate power and authority to
\n ———
\nexecute, deliver and perform its obligations under this Agreement and each of
\nthe Ancillary Agreements to which it is a party and to consummate the
\nTransactions. This Agreement has been duly authorized by, constitutes a binding
\nobligation of, and is enforceable against, Seller in accordance with its terms.
\nEach of the Ancillary Agreements to which Seller is a party shall, as of the
\nClosing Date, have been<\/p>\n
16<\/p>\n
duly authorized and shall thereafter constitute a binding obligation of Seller,
\nenforceable against Seller in accordance with their terms.<\/p>\n
4.2 Organization and Standing.
\n ————————-<\/p>\n
(a) Seller is a limited company duly organized, validly existing
\nand in good standing under the laws of Sweden, registered in the Companies
\nRegistry with registration number 556194-4652, with full power and authority to
\nconduct its business as it is now being conducted.<\/p>\n
(b) BWS is a limited company duly organized, validly existing and
\nin good standing under the laws of Sweden, registered in the Companies Registry
\nwith registration number 556204-1904, with full power and authority to conduct
\nits business as it is now being conducted. True and correct copies of the
\ncharter documents of BWS, as amended as of the date hereof, have been provided
\nto Purchaser.<\/p>\n
(c) Each Subsidiary of the Company is duly organized, validly
\nexisting and in good standing under the laws of Sweden, registered in the
\nCompanies Registry with the registration number set forth on Schedule 4.2(c),
\nwith full power and authority to conduct its business as it is now being
\nconducted. True and correct copies of the charter documents of each such
\nSubsidiary, as amended as of the date hereof, have been provided to Purchaser.<\/p>\n
4.3 Capitalization.
\n ————–<\/p>\n
(a) BWS. The entire authorized share capital of BWS is 50
\nmillion SEK divided into 500,000 shares (the “BWS Capital Stock”), each with a
\nnominal value of SEK 100 of which all are issued and outstanding. No shares of
\nthe BWS Capital Stock are held in BWS’s treasury and no shares are reserved for
\nissuance. All issued and outstanding shares of BWS Capital Stock (i) have been
\nduly authorized and validly issued and are fully paid and nonassessable, without
\nattachment of any preemptive rights, (ii) were issued in compliance with all
\napplicable Laws and (iii) are held of record and beneficially by Seller free and
\nclear of any Encumbrances. There are (x) no securities of BWS convertible into
\nor exchangeable for shares of capital stock or other voting securities of BWS,
\n(y) no subscription rights, options, warrants, calls, commitments, preemptive
\nrights or other rights of any kind to acquire from BWS and no obligation of BWS
\nto issue, sell, register for sale, redeem or otherwise acquire, any shares of
\ncapital stock or other voting securities of BWS or any securities of BWS
\nconvertible into or exchangeable for such capital stock or voting securities and
\n(z) no equity equivalents, interests in the ownership or earnings of, or stock
\nappreciation, phantom stock or other similar rights of, or with respect to, BWS.
\nNeither BWS nor Seller is a party to or bound by any contracts or commitments of
\nany character relating to any issued or unissued stock or any other equity
\nsecurity issued or to be issued by BWS.<\/p>\n
(b) Subsidiaries. Schedule 4.3(b) sets forth a list of each
\n ——–
\nSubsidiary of BWS, specifying with respect to each such Subsidiary, the
\njurisdiction of organization, the number of shares of authorized capital stock,
\nthe par value of such stock, and the number of shares that are issued and
\noutstanding and the identity and number of shares held of record by each holder
\nthereof. Except as indicated on Schedule 4.3(b), all of the issued and
\n ——–
\noutstanding shares of capital stock of each Subsidiary of BWS are owned of
\nrecord and beneficially by BWS, free and clear of any<\/p>\n
17<\/p>\n
Encumbrances. All of the shares of capital stock of each Subsidiary of BWS have
\nbeen duly authorized and validly issued and are fully paid and non-assessable,
\nwere issued and sold in accordance with applicable laws and were not issued in
\nviolation of any preemptive or other similar rights. Except for the shares of
\ncapital stock of the Subsidiaries owned by BWS or as otherwise indicated on
\nSchedule 4.3(b), there are no (i) outstanding equity securities of the
\n——–
\nSubsidiaries of BWS or (ii) commitments or obligations of any kind or character
\nfor (A) the issuance of equity securities of any Subsidiary of BWS or (B) the
\nrepurchase, redemption or other acquisition of any equity securities of any
\nSubsidiary of BWS. Except as set forth on Schedule 4.3(b), there are no
\nstockholder agreements, voting trusts, proxies or other agreements or
\nunderstandings with respect to or concerning the purchase, sale or voting of the
\nequity securities of any Subsidiary of BWS. Except for the equity securities of
\nthe Subsidiaries of BWS described on Schedule 4.3(b), neither BWS nor its
\n ——–
\nSubsidiaries owns equity securities in any other Person.<\/p>\n
4.4 Books and Records. The Books and Records of BWS and each of its
\n —————–
\nSubsidiaries have been made available to Purchaser or its representatives and
\nhave been maintained in accordance with sound business practices and all
\napplicable Laws. The minute books of BWS are accurate, complete and correct and
\nhave been maintained in accordance with applicable Laws.<\/p>\n
4.5 Audited Financial Statements
\n —————————-
\n (a) Attached as Schedule 4.5(a) hereto are true and correct
\n ——–
\ncopies of (i) the audited consolidated balance sheets of the Company and its
\nconsolidated Subsidiaries as of December 31, 1999 and the related statements of
\nincome, cash flows and stockholder’s equity for the one year period then ended,
\nin each case together with pro forma adjustments prepared by the Company’s
\nindependent auditors to remove therefrom the assets, liabilities and equity of
\nCWS and CTV, and any revenues, expenses or other operating results of each of
\nthem (the “Pro Forma Adjustments”) and (ii) the audited consolidated balance
\nsheets of the Company and its consolidated Subsidiaries as of December 31, 1998
\nand December 31, 1997, and the related statements of income, cash flows and
\nstockholder’s equity for the one year periods then ended, together with the
\naudit reports thereon ((i) and (ii) collectively, the “Audited Financial
\nStatements”). The Audited Financial Statements have been prepared in accordance
\nwith GAAP using the Accounting Principles consistently applied by the Company
\nthroughout the periods covered by such statements, and present fairly the
\nfinancial position and results of operations of the Company and its consolidated
\nSubsidiaries at the dates of such statements and for the periods covered
\nthereby. As adjusted by the Pro Forma Adjustments, the December 31 Financial
\nStatements present fairly the financial position and results of operations of
\nthe Company and its consolidated subsidiaries other than CTV and CWS at the
\ndates of such statements and for the periods covered by.<\/p>\n
(b) Attached as Schedule 4.5(b) hereto are true and correct copies of
\n ——–
\nthe audited consolidated balance sheets of each of the Minority Subsidiaries and
\nthe Hagglunds Joint Venture as of December 31, 1999 and December 31, 1998 and
\nthe related statements of income, cash flows and stockholder’s equity for the
\none year period then ended (the “Subsidiary Financial Statements”). The
\nSubsidiary Financial Statements have been prepared in accordance with GAAP and
\nthe Accounting Principles consistently applied throughout the periods covered by
\nsuch statements, and present fairly the financial position and results of
\noperations of the Minority Subsidiary or the Hagglunds Joint Venture to which
\nsuch financial statement relates at the dates of such statements and for the
\nperiods covered thereby.<\/p>\n
18<\/p>\n
4.6 Unaudited Financial Statements. Attached as Schedule 4.6 hereto
\n —————————— ——–
\nare true and correct copies of the following: (a) unaudited balance sheets of
\nthe Company and its consolidated Subsidiaries as of February 29, 2000; (b) the
\nunaudited balance sheet of the Company as of March 31 and April 30, 2000, and
\nthe related statements of income, cash flows and stockholder’s equity for the
\nperiod beginning January 1, 2000 and ending on the date of such unaudited
\nfinancial statements (collectively, the “Unaudited Financial Statements”). The
\nUnaudited Financial Statements have been prepared in accordance with GAAP using
\nthe Accounting Principles consistently applied by the Company throughout the
\nperiods covered by such statements (except for the absence of footnotes and
\nother presentation items, and subject to normal year end adjustments, none of
\nwhich will individually or in the aggregate be material) and present fairly the
\nfinancial position and results of operations of the Company (and, in the case of
\nthe February 29, 2000 Unaudited Financial Statements, its consolidated
\nSubsidiaries) at the dates of such statements and for the periods covered
\nthereby.<\/p>\n
4.7 Undisclosed Liabilities.
\n ———————-<\/p>\n
(a) Except for such Liabilities as are disclosed on the December
\n31 Balance Sheet, to the best of Seller’s knowledge, the Company has no material
\nLiabilities, whether absolute or contingent, liquidated or unliquidated, due or
\nto become due, except for (i) such Liabilities as have arisen after December 31,
\n1999, in the ordinary course of business, consistent with past practices of the
\nCompany and its Subsidiaries and (ii) such Liabilities as would not individually
\nor in the aggregate have a Material Adverse Effect on the Company.<\/p>\n
(b) Schedule 4.7(b) sets forth a description of certain
\n ——–
\ncontingent liabilities of the Company that are not required to be included in
\nthe Company’s December 31 Balance Sheet in accordance with GAAP and which were
\ndisclosed by Seller to Purchaser prior to the date hereof. Such description
\nshall include Seller’s best estimate of the maximum amount payable by the
\nCompany as a result of such liabilities.<\/p>\n
4.8 Licenses, Permits and Authorizations. Schedule 4.8 contains a true
\n ————————————
\nand correct list of all material licenses, permissions, authorizations and
\nconsents issued by any Governmental Authority to the Company or any of the
\nMinority Subsidiaries (collectively, “Permits”). All such Permits are in full
\nforce and effect. Except as set forth on Schedule 4.8 there are no proceedings
\npending, or to the knowledge of Seller, threatened, that seek the revocation,
\ncancellation, suspension or adverse modification thereof. Such Permits
\nconstitute all of the material Permits necessary to permit the Company and the
\nMinority Subsidiaries to own, operate, use and maintain their assets and
\nproperties in the manner in which they are now operated and maintained and to
\nconduct the business of the Company and the Minority Subsidiaries as currently
\nconducted. All required filings with respect to such material Permits have been
\ntimely made, and all required applications for renewal thereof have been timely
\nfiled, except for any failure to timely file any filing or application that may
\nnot reasonably result in the termination, nonrenewal or material adverse
\nmodification of the material Permit to which such filing or application relates.<\/p>\n
4.9 Labor Matters. Schedule 4.9 contains a true, correct and complete
\n ————- ——–
\nlist of all of the collective bargaining agreements to which the Company is a
\nparty. Except as set forth on Schedule 4.9, no labor dispute, strike, work
\n ——–
\nstoppage or material labor relations problem of any kind that has affected or
\nmay affect the Company’s or any of its Subsidiaries’ businesses or<\/p>\n
19<\/p>\n
operations in any material respect has occurred during the past two (2) years,
\nor, to the knowledge of the Seller, currently is pending or threatened. Except
\nas set forth on Schedule 4.9, neither the Company nor any of its Subsidiaries
\n ——–
\nhas entered into any severance or similar arrangement in respect of any present
\nemployee of the Company or any of its Subsidiaries that will result in any
\nobligation (absolute or contingent) of Purchaser, the Company or any of its
\nSubsidiaries to make any payment to any present employee of the Company or any
\nof its Subsidiaries following termination of employment or upon a change of
\ncontrol of the Company or any of its Subsidiaries. Except as set forth on
\nSchedule 4.9, neither the Company nor any of its Subsidiaries has engaged in any
\n——–
\nunfair labor practice and there are no complaints against the Company or any of
\nits Subsidiaries pending before any Governmental Authority by or on behalf of
\nany employee of the Company or any of its Subsidiaries.<\/p>\n
4.10 Contracts. Schedule 4.10 contains a true, correct and complete
\n ——— ——–
\nlist of all of the Contracts described in Sections 4.10(a)-(o) below, to which
\nthe Company is a party or by which its properties or assets is bound (each, a
\n“Material Contract”):<\/p>\n
(a) Each Contract that involves performance of services or
\ndelivery of goods and\/or materials by or to the Company in an amount or value in
\nexcess of 5,000,000 SEK, including a description of any offset arrangements or
\nrequirements with respect thereto and the amount thereof; provided however that
\nsuch Contracts shall not include any Contracts pursuant to which the Company
\nhas, as of the date hereof, fulfilled all of its performance obligations
\nthereunder;<\/p>\n
(b) Each note, debenture, other evidence of Indebtedness,
\nguarantee, loan, interest rate and currency obligation swap, letter of credit,
\nsurety-bond or financing agreement or instrument or other contract for money
\nborrowed, including any agreement or commitment for future loans, credit or
\nfinancing;<\/p>\n
(c) Each Contract not in the ordinary course of business
\nincluding all Contracts relating to the acquisition or disposition of any
\nSubsidiary or any material assets of the Company (other than sales of inventory
\nin the ordinary course of business); provided however that such Contracts shall
\nnot include any Contracts pursuant to which the Company has, as of the date
\nhereof, fulfilled all of its performance obligations (contingent or otherwise);<\/p>\n
(d) Each lease, rental or occupancy agreement, license,
\ninstallment and conditional sale agreement, and other contract affecting the
\nleasing of, title to, use of, or any leasehold or other interest in, any real or
\npersonal property having annual rental payments in excess of 500,000 SEK;<\/p>\n
(e) Each material licensing agreement with respect to
\nIntellectual Property, including agreements with current or former employees,
\nconsultants or contractors regarding the appropriation or ownership of
\nIntellectual Property (other than (i) any such license granted by the Company to
\nFMV in the ordinary course of business as part of or as a condition to any
\nperformance contract, (ii) any such license granted to any other Person in
\nconnection with any subcontract, coproduction agreement, teaming agreement or
\nother similar arrangement solely with respect to the rights necessary for such
\nPerson to perform its obligations thereunder, or (iii) any <\/p>\n
20<\/p>\n
agreement between the Company and its employees in relation to their employment
\nby the Company);<\/p>\n
(f) Each Contract, other than the plans and arrangements set forth in
\nSchedule 4.18 hereof, between the Company and any of its officers or employees
\n——–
\nearning a salary of not less than 1,000,000 SEK per year, or which provides for
\nbonuses, pensions, options, deferred compensation, retirement payments, profit
\nsharing, severance payments or the like (other than agreements with employees
\ngranting them the right to participate in the plans and arrangements set forth
\non Schedule 4.18) that could result in the Company’s obligation (contingent or
\n ——–
\notherwise) to pay to any officer or employee an amount exceeding 1,000,000 SEK
\nper year individually or 2,000,000 SEK per year in the aggregate;<\/p>\n
(g) Each joint venture contract, partnership agreement, limited
\nliability company agreement or other Contract (however named) involving a
\nsharing of profits, losses, costs or liabilities by the Company with any other
\nPerson;<\/p>\n
(h) Each Contract, other than the Noncompetition Agreement, containing
\ncovenants that restrict the Company’s business activity or limit the freedom of
\nthe Company to engage in any line of business or to compete with any Person or
\nin any geographic area;<\/p>\n
(i) Each Contract providing for payments to or by any Person based on
\nsales, purchases or profits, other than direct payments for goods;<\/p>\n
(j) Each power of attorney currently effective and outstanding to any
\nPerson other than an employee of the Company or solely for access to any bank
\naccounts of the Company;<\/p>\n
(k) Each Contract providing for capital expenditures for investments
\nafter the date hereof in an amount in excess of 500,000 SEK.<\/p>\n
(l) Each written warranty, guaranty or other similar undertaking with
\nrespect to contractual performance extended by the Company other than in the
\nordinary course of business;<\/p>\n
(m) Each Loss Contract;<\/p>\n
(n) Each Contract with Seller or any of its Affiliates involving the
\nprovision of goods or services by or to the Company after the Closing Date
\nhaving a value equal or greater than 5,000,000 SEK individually or 10,000,000
\nSEK in the aggregate; and<\/p>\n
(o) Any other Contract material to the business or operations of the
\nCompany.<\/p>\n
Each Material Contract is valid and in full force and effect in all material
\nrespects (except those as by their terms may expire prior to Closing). The
\nCompany is not in default, or alleged to be in default, in any material respect
\nunder any Material Contract to which it is a party or by which it is bound and
\neach such Material Contract is enforceable against the Company in accordance
\nwith its terms. The consummation of the transactions contemplated by this
\nAgreement will not cause a <\/p>\n
21<\/p>\n
material default under, or provide any right of termination with respect to, any
\nMaterial Contract. To the knowledge of the Seller, no party with whom the
\nCompany or any of its Subsidiaries has a Material Contract is in default
\nthereunder in any material respect and each such Material Contract is
\nenforceable against each such other Person party thereto in accordance with its
\nterms. To the knowledge of the Seller, no event has occurred and no other facts
\nor circumstances exist that, with notice or lapse of time or both, could
\nmaterially impair the ability of the Company or any of its Subsidiaries party
\nthereto from enforcing any of their respective rights under any Material
\nContract in any material respect or is reasonably likely to constitute a
\nmaterial breach or material default by any party thereto.<\/p>\n
4.11 Litigation. There are no Actions or any other proceedings at law
\n ———-
\nor in equity or investigations by any Governmental Authority pending against the
\nCompany or any of its Subsidiaries, or, to the best of Seller’s knowledge,
\nthreatened against or affecting the Company or any of its Subsidiaries, their
\nrespective properties or business or the transactions contemplated by the
\nAgreement or the Ancillary Agreements. Neither the Company nor any of its
\nSubsidiaries is subject to or bound by any order of any Governmental Authority
\nentered in any Action to which it is a party or of which the Company has
\nknowledge.<\/p>\n
4.12 Taxes.
\n —–<\/p>\n
(a) Except as set forth in Schedule 4.12 hereto, each of BWS and
\n ——–
\neach of its Subsidiaries has, in accordance with applicable Law, timely filed or
\ncaused to be filed all of the Tax Returns required by Law to be filed and has
\nfully paid all Taxes for which it has become liable to pay on or prior to the
\nClosing Date. There is no dispute, audit, investigation, proceeding, deficiency
\nor claim, and there is no notice of any of the foregoing concerning any
\nLiability with respect to Taxes owed by BWS or any of its Subsidiaries either
\nclaimed or raised in writing by any Governmental Authority or as to which the
\nCompany has knowledge.<\/p>\n
(b) Except as set forth in Schedule 4.12, there are no
\n ——–
\ncircumstances that would permit any Governmental Authority to levy additional
\namounts of any Tax, fines or other punitive damages against BWS or any of its
\nSubsidiaries or to disallow the deductibility of any cost items reflected in
\nsuch accruals or in any Tax return filed by or with respect to the Company or
\nits Subsidiaries prior to the Closing Date other than such amounts as shall be
\naccrued on the Closing Balance Sheet.<\/p>\n
(c) The Company has established adequate reserves in accordance
\nwith the Accounting Principles in the December 31 Balance Sheet and the
\nUnaudited Financial Statements, which are sufficient for the payment of all
\nunpaid Taxes, whether or not disputed, for the period ended on or prior to the
\ndate hereof and all prior periods.<\/p>\n
Without limiting the generality of the foregoing:<\/p>\n
(d) No Taxes, fines or punitive damages will be levied or, where
\nrelevant, no loss of Tax losses will occur as a result of any reorganization of
\nBWS and its Subsidiaries, including the transfer of assets to BWS or the
\ntransfer by BWS of the capital stock of CTV or CWS to Celsius prior to the
\nClosing or any of the transactions contemplated hereby; and<\/p>\n
22<\/p>\n
(e) No fines or punitive damages will be levied as a result of
\nperiodization errors in the VAT reporting of BWS or any of its Subsidiaries:<\/p>\n
4.13 Absence of Certain Changes, Events or Conditions. Except as
\n ————————————————–
\nset forth in Schedule 4.13, since December 31, 1999, there has not been any:
\n ——–
\n (a) Material Adverse Change in the business, operations,
\ncondition (financial or otherwise), assets, liabilities or prospects of the
\nCompany and its Subsidiaries taken as a whole; <\/p>\n
(b) except for normal periodic increases in the ordinary course
\nof business consistent with past practice, (i) increase in the compensation
\npayable or to become payable by the Company or any of its Subsidiaries to any of
\ntheir officers, directors or employees (collectively, the “Personnel”), (ii)
\nbonus, incentive compensation, service award or other like benefit granted, made
\nor accrued, contingently or otherwise, for or to the credit of any of the
\nPersonnel, except in the ordinary course of business consistent with past
\npractices, (iii) employee welfare, pension, retirement, profit-sharing or
\nsimilar payment or arrangement made or agreed to by the Company or any of its
\nSubsidiaries for any Personnel except pursuant to the existing plans and
\narrangements described in Schedule 4.18 or (iv) new employment agreements to
\n ——–
\nwhich the Company or any of its Subsidiaries is a party of the type required to
\nbe disclosed pursuant to Section 4.10(f) hereof;<\/p>\n
(c) addition to or modification of the Pension Schemes other than
\n(i) contributions made in accordance with the normal practice of the Company and
\nits Subsidiaries or (ii) the extension of coverage to other Personnel who became
\neligible after December 31, 1999;<\/p>\n
(d) sale, assignment or transfer of any material assets of the
\nCompany or any of its Subsidiaries other than the sale of inventory in the
\nordinary course of business;<\/p>\n
(e) cancellation of any Indebtedness or waiver of any rights of
\nsubstantial value to the Company or any of its Subsidiaries, other than in the
\nordinary course of business;<\/p>\n
(f) cancellation, termination, or material amendment of any
\nMaterial Contract, Permit or other instrument material to the Company;<\/p>\n
(g) capital expenditure for investments in fixed assets or any
\nincurring of liability therefor by the Company, except for such capital
\nexpenditures that do not, individually or in the aggregate, exceed 500,000 SEK;<\/p>\n
(h) failure to operate the business of the Company and each of
\nits Subsidiaries in the ordinary course in any material respect so as to use
\nreasonable efforts to preserve such business intact, to keep available the
\nservices of the Personnel, and to preserve the goodwill of the Company’s and its
\nSubsidiaries’ suppliers, customers and others having business relations with the
\nCompany or any of its Subsidiaries;<\/p>\n
(i) change in accounting methods or practices by the Company;<\/p>\n
23<\/p>\n
(j) revaluation by the Company of any of its assets or
\nproperties, including without limitation, writing off notes or accounts
\nreceivable;<\/p>\n
(k) damage, destruction or loss (whether or not covered by
\ninsurance) of any material assets of the Company or any of its Subsidiaries;<\/p>\n
(l) Indebtedness incurred by the Company or any of its
\nSubsidiaries other than the Haaglunds Joint Venture or any commitment to incur
\nIndebtedness entered into by the Company or any of its Subsidiaries (other than
\nthe Haaglunds Joint Venture) other than (i) Indebtedness or any commitment to
\nincur Indebtedness in the ordinary course of business in an aggregate amount
\nthat is less than Five Million (5,000,000) SEK or (ii) intercompany Indebtedness
\nincurred in the ordinary course of business between or among Seller, the Company
\nor any of its Subsidiaries;<\/p>\n
(m) declaration, setting aside for payment of dividends or
\ndistributions in respect of any securities of the Company or any of its
\nSubsidiaries or any redemption, purchase or other acquisition by the Company or
\nany of its Subsidiaries of their respective securities;<\/p>\n
(n) issuance or reservation for issuance by the Company or any
\nof its Subsidiaries of, or commitment to issue or reserve for issuance any
\nsecurities of, the Company or any of its Subsidiaries;<\/p>\n
(o) execution, termination or material amendment of any lease
\nfor real or personal property by the Company or any of its Subsidiaries
\ninvolving an annual payment in excess of 500,000 SEK; or<\/p>\n
(p) any agreement by the Company or any of its Subsidiaries to
\ndo any of the foregoing.<\/p>\n
4.14 Legal Compliance. Except for Environmental Laws and Employment
\n —————-
\nLaws, each of which is the subject of other representations and warranties
\ncontained herein, (a) neither the Company nor any of its Subsidiaries or their
\nrespective predecessors in interest is, and at no time during the past five (5)
\nyears has been, in material violation of or in material default under any Law
\napplicable to it or its assets and properties, (b) no action, proceeding,
\ninvestigation, charge, complaint, claim, demand or notice has been filed or
\ncommenced against the Company or any of its Subsidiaries (or against Seller or
\nany of its Affiliates relating to the Company or any of its Subsidiaries or
\ntheir respective predecessors in interest), alleging any such violation or
\ndefault, nor to the knowledge of Seller are any such actions threatened, and (c)
\nneither the Company nor any of its Subsidiaries or their respective predecessors
\nin interest, or Seller or any of its Affiliates on the Company’s or its
\nSubsidiaries or their respective predecessors in interest behalf has, during the
\npast five (5) years, conducted any internal investigation in connection with
\nwhich Seller or any of its Affiliates, or the Company or any of its Subsidiaries
\nor their respective predecessors in interest retained or sought advice from
\noutside legal counsel with respect to any actual, potential or alleged material
\nviolation of any Law by the Company or any of its Subsidiaries or their
\nrespective predecessors in interest (or Seller or any of its Affiliates relating
\nto the Company or its Subsidiaries or their respective predecessors in
\ninterest), or any of their respective Personnel or agents. None of Seller, its
\nAffiliates, or their respective representatives or agents is, and at no time
\nduring the past<\/p>\n
24<\/p>\n
five (5) years has been, in material violation of or in material default under
\nany Law for which the Company or its Subsidiaries may have any liability.<\/p>\n
4.15 No Conflict with Other Documents. The execution and delivery
\n ———————————-
\nof this Agreement and the Ancillary Agreements and the carrying out of the
\ntransactions contemplated hereby or thereby, will not:<\/p>\n
(a) result in any violation, termination or modification of, or
\nbe in conflict with, the charter documents of the Company, any of its
\nSubsidiaries or Seller;<\/p>\n
(b) subject to obtaining the consents, approvals and actions,
\nmaking the filings and giving the notices disclosed in Schedule 4.15 or
\n ——–
\ndescribed in Section 4.26, conflict with or result in a material violation of
\n ——-
\nany term or provision of any Law applicable to the Company or any of its
\nSubsidiaries or their respective assets and properties;<\/p>\n
(c) (i) conflict with or result in a material violation or
\nmaterial breach of, (ii) constitute (with or without notice or lapse of time or
\nboth) a material default under, (iii) require the Company or its Subsidiaries to
\nobtain any consent, approval or action of, make any filing with or give any
\nnotice to any other Person as a result or under the terms of, (iv) result in or
\ngive to any other Person any right of termination, cancellation, acceleration or
\nmaterial modification in or with respect to, or (v) result in the creation or
\nimposition of any Encumbrance (other than a Permitted Encumbrance) upon the
\nCompany or its Subsidiaries or any of their respective assets and properties
\nunder, any Material Contract or any Permits to which the Company or its
\nSubsidiaries is a party or by which any of their respective assets and
\nproperties are bound.<\/p>\n
4.16 Government Contracts; Backlog.
\n —————————–<\/p>\n
(a) There is no Action or investigation pending or, to the
\nknowledge of the Seller, threatened against the Company or any of its
\nSubsidiaries (or against Seller or any of its Affiliates with respect to the
\nCompany), asserting or alleging the commission of criminal acts or bribery by
\nany such Person with respect to any Government Contract. Neither the Company nor
\nany of its Subsidiaries is currently, or at any time within the past five (5)
\nyears has ever been, debarred or suspended from participation in the award of
\nGovernment Contracts (it being understood that debarment and suspension does not
\ninclude ineligibility to bid for certain Government Contracts due to generally
\napplicable bidding requirements). The Company and each of its Subsidiaries is,
\nand at all times within the past five (5) years has been, in all material
\nrespects, in compliance with all applicable Laws relating to any Government
\nContract, and none of Seller, the Company or any of their respective
\nSubsidiaries has received written notice of any kind from any Governmental
\nAuthority alleging any violation, or notifying any such Person of any
\ninvestigation of a possible violation, of any applicable Law by Company or any
\nof its Subsidiaries or any act for which the Company or any of its Subsidiaries
\ncould be debarred or suspended from contracting with any Governmental Authority,
\nor prohibiting or seeking to prohibit the Company or any of its Subsidiaries
\nfrom conducting, or restricting or seeking to restrict the Company’s or any of
\nits Subsidiaries’ ability to conduct, all or any part of their respective
\nbusinesses or operations or from contracting with any Governmental Authority. No
\npayment has been made by the Seller, the Company or any of their respective
\nAffiliates, or, to the knowledge of Seller, by any Person acting on behalf of
\nany such Person, to any other Person in connection with any Government Contract
\nin<\/p>\n
25<\/p>\n
violation of applicable procurement Laws or in violation of (or requiring
\ndisclosure pursuant to) any other applicable Law. The cost accounting and
\nprocurement systems maintained by the Company and its Subsidiaries with respect
\nto Government Contracts are in compliance in all material respects with all
\napplicable Laws.<\/p>\n
(b) With respect to each material Government Contract: (i) the
\nCompany and each of its Subsidiaries party thereto has complied with all
\nmaterial terms and conditions of such material Government Contract, including
\nall clauses, provisions and requirements incorporated expressly by reference or
\nby operation of law therein; (ii) all representations and certifications
\nexecuted, acknowledged or set forth in, or pertaining to, such material
\nGovernment Contract are complete and correct in all material respects as of
\ntheir effective date, and the Company and each of its Subsidiaries party
\nthereto, as applicable, have complied in all material respects with all such
\nrepresentations and certifications; and (iii) no termination for convenience,
\ntermination for default, cure notice or show cause notice is in effect as of the
\ndate hereof pertaining to any material Government Contract.<\/p>\n
(c) Schedule 4.16(c) identifies with respect to each material
\n ——–
\nGovernment Contract to which the Company is a party and which has an aggregate
\nfunded and unfunded backlog in excess of 5,000,000 SEK, the amount in SEK of the
\nbacklog of the Company thereunder as of December 31, 1999.<\/p>\n
(d) Schedule 4.16(d) lists each foreign sales agent agreement or
\n ——–
\nany similar agency or representation Contract to which the Company, Seller or
\nany of their respective Subsidiaries is a party (or pursuant to which any of
\nthem may have any obligation) requiring payments to any third party in
\nconnection with sales by the Company or any of its Subsidiaries to any customer
\n(collectively, the “FSAs”). True and correct copies of each of the FSAs have
\nbeen provided to Purchaser prior to the date hereof. None of the FSAs violate
\nany applicable Law.<\/p>\n
4.17 Title to Personal Properties; Absence of Encumbrances, Etc. The
\n ———————————————————–
\nCompany or one or more of its Subsidiaries has and on the Closing Date will
\nhave, good and marketable title to all of the Company’s or such Subsidiaries’
\npersonal property (collectively, the “Machinery and Equipment”) owned or
\nreflected in the December 31 Balance Sheet, with such changes as thereafter have
\noccurred in the ordinary course of business, in each case free and clear of
\nEncumbrances. The Machinery and Equipment taken as a whole is in good operating
\ncondition and repair (subject to normal wear and tear) and is suitable for the
\npurposes for which it is presently or historically has been used. Except as
\notherwise contemplated by this Agreement, the Company or one or more of its
\nSubsidiaries owns, in the case of leases and licenses, has valid and subsisting
\nleasehold interests or licenses in, or, in the case of government furnished
\nproperty, otherwise possesses a valid right to use, all of the material
\nproperties and assets of whatever kind (whether real or personal, tangible or
\nintangible and including, without limitation, all material Intellectual
\nProperty) necessary to operate the business as currently conducted.<\/p>\n
4.18 Pension and Employee Benefit Plans.
\n ———————————-<\/p>\n
(a) Except as set forth in Schedule 4.18 the Company and each of
\nits Subsidiaries has complied in all material respects with all laws, rules and
\nregulations relating to employment, equal employment opportunity,
\nnondiscrimination, immigration, wages, hours,<\/p>\n
26<\/p>\n
benefits, collective bargaining, the payment of social security and similar
\ntaxes, occupational safety and health and plant closings (“Employment Laws”) and
\nhas, and shall have paid or made provisions for in the Closing Balance Sheet all
\ncontributions due from it as of the Closing. The Company and each of its
\nSubsidiaries has made sufficient provisions in its December 31 Balance Sheet in
\nrespect of holiday pay. Except as will be reflected in the Closing Balance
\nSheet, neither the Company nor any of its Subsidiaries will be liable as of the
\nClosing for the payment of any material taxes, fines, penalties or other
\namounts, however designated, for failure to comply with any of the foregoing
\nEmployment Laws.<\/p>\n
(b) Except as disclosed in Schedule 4.18, neither the Company
\n ——–
\nnor any of its Subsidiaries is a party to any agreement and has not incurred any
\nliability for the provision of benefits to any employee of the Company or any of
\nits Subsidiaries other than those payable, as required by any Employment Laws,
\nor pursuant to, state social security schemes or schemes of national insurance,
\ncollective bargaining agreements, or other material Contracts disclosed to
\nPurchaser, including Sweden ITP, (the “Pension Schemes”) on or following
\nretirement or death for or in respect of any of the employees of the Company or
\nany of its Subsidiaries.<\/p>\n
(c) Except as set forth in Schedule 4.18, the Company’s and its
\nSubsidiaries’ Pension Schemes have been established, maintained and administered
\nat all times in accordance with all applicable Employment Laws and the Company
\nand each of its Subsidiaries has, as of the date hereof complied in all material
\nrespects with all of its obligations and duties (including statutory duties)
\nunder and in respect of the Pension Schemes.<\/p>\n
4.19 Bank Accounts. Schedule 4.19 contains a list of all bank
\n ————- ——–
\naccounts, safe deposit boxes and lock boxes maintained by the Company, and all
\nauthorized signatures therefor, which list is complete and accurate.<\/p>\n
4.20 Brokers and Advisors. None of Seller, the Company or any of its
\n ——————–
\nSubsidiaries has taken any action that would give rise to a valid claim against
\nany party hereto for a brokerage commission, finder’s fee, consulting or
\nadvisory fee, or similar payment, other than fees payable solely by Seller to
\nUPS Warburg for which none of the Company, its Subsidiaries or Purchaser shall
\nhave any liability.<\/p>\n
4.21 Environmental Matters.
\n ———————<\/p>\n
(a) (i) The Company and its Subsidiaries are, and at all times
\nduring the previous three (3) years have been, in compliance with all applicable
\nEnvironmental Laws and any administrative or judicial notices or orders issued
\nor promulgated pursuant to or under any such Environmental Laws; (ii) the
\nCompany and its Subsidiaries hold, and at all times during the previous three
\n(3) years have held, all material Permits required under the applicable
\nEnvironmental Laws for the operation of their business and the ownership of
\ntheir assets and properties, and (iii) to the knowledge of Seller, no
\nmodification or change to the operations of the Company’s or any of its
\nSubsidiaries’ business will be required upon renewal of any such Permits.
\nNeither the Company nor its Subsidiaries has received any notice from any
\napplicable Governmental Authority alleging any violation of any Environmental
\nLaws. Except as set forth on Schedule 4.21, no Governmental Authority has
\nconducted any audits, assessments, tests or other <\/p>\n
27<\/p>\n
reviews in connection with environmental matters regarding the Company or any of
\nits Subsidiaries.<\/p>\n
(b) None of Seller, the Company or their respective Subsidiaries
\nhas stored, deposited, used, treated, kept, disposed of, released or emitted any
\nHazardous Materials on any of the Real Property or buildings used by the Company
\nor any of its Subsidiaries in contravention of any applicable Environmental
\nLaws.<\/p>\n
(c) Neither the Company nor its Subsidiaries has any obligation
\nor Liability, whether actual or contingent, with respect to storage, treatment,
\nclean-up or disposal of any Hazardous Materials.<\/p>\n
(d) There are no environmental reports or assessments in the
\npossession or control of Seller, the Company or any of their Affiliates relating
\nto the current or prior business of the Company or any of its Subsidiaries that
\nhave not been delivered or made available to Purchaser.<\/p>\n
4.22 Customers and Suppliers. Schedule 4.22 sets forth a complete and
\n ———————– ——–
\naccurate list of the names of (a) the ten largest customers of the Company
\n(including Seller and its Affiliates), showing the approximate total sales in
\nSEK by the Company to each such customer during the 1998 and 1999 calendar years
\nand (b) the ten largest suppliers of the Company (including Seller and its
\nAffiliates), showing the approximate total purchases in SEK by the Company from
\neach such supplier during the 1998 and 1999 calendar years. None of Seller, the
\nCompany or any of their respective Subsidiaries has received any communication
\nfrom any customer or supplier listed in Schedule 4.22 notifying any of them of
\n ——–
\nany intention to terminate or materially reduce purchases from or supplies to
\nthe Company and its Subsidiaries or the intention to terminate or fail to renew
\ntheir current Contracts, if any, with the Company and its Subsidiaries or fail
\nto exercise any purchase option thereunder.<\/p>\n
4.23 Insurance.
\n ———<\/p>\n
(a) Schedule 4.23 contains an accurate and complete description
\n ——–
\nof all policies of property, fire and casualty, product liability, workers’
\ncompensation and other forms of insurance held by or for the benefit of the
\nCompany or any of its Subsidiaries or insuring any of their assets or properties
\n(collectively, the “Insurance Policies”). True and correct and complete copies
\nof such insurance policies have been made available to Purchaser.<\/p>\n
(b) Except as set forth Schedule 4.23 all Insurance Policies (i)
\n ——–
\nare valid, outstanding, and enforceable policies, and (ii) will not terminate or
\nlapse by reason of the transaction contemplated by this Agreement with respect
\nto any claim arising prior to the Closing Date.<\/p>\n
(c) None of Seller, the Company or its Subsidiaries has received
\n(i) any notice of cancellation of any Insurance Policy or refusal of coverage
\nthereunder, (ii) any notice that any issuer of such Insurance Policy has filed
\nfor protection under applicable bankruptcy laws or is otherwise in the process
\nof liquidating or has been liquidated, or (iii) any other notice that any such<\/p>\n
28<\/p>\n
Insurance Policy is no longer in full force or effect or that the issuer of any
\nsuch Insurance Policy is no longer willing or able to perform its obligations
\nthereunder.<\/p>\n
4.24 Intellectual Property. Schedule 4.24 lists each patent, patent
\n ——————— ——–
\napplication, invention disclosure, trademark, trademark application,
\nservicemark, servicemark application, trade name, copyright registration and
\ncopyright application in which the Company has an interest or in which Seller
\nhas an interest and which is used by the Company in its businesses as currently
\nconducted. Except as set forth on Schedule 4.24, the Company has good title to
\n ——–
\neach item of Intellectual Property owned by it, free and clear of any
\nEncumbrances, and no other Person has the right to use any such Intellectual
\nProperty other than pursuant to (i) the Contracts listed on Schedule 4.10, (ii)
\n ——–
\nany license entered into in the ordinary course of business between the Company
\nand FMV or (iii) any license entered into pursuant to any teaming agreements,
\nco-production agreements, subcontracts or similar agreements or arrangements
\nbetween the Company and any other Person(s), to the extent the licenses granted
\nunder such arrangements are limited to the purpose of fulfilling the parties’
\nobligations under such arrangements. The Company’s use of the Intellectual
\nProperty, whether or not registered, is not infringing upon or otherwise
\nviolating the rights of any third party in or to such rights, and neither Seller
\nnor the Company has received notice of any claims that have been asserted by any
\nPerson against any of them with respect to the use of any item of Intellectual
\nProperty by the Company challenging or questioning the validity or effectiveness
\nof such use or any such right, license or agreements and no Person has a right
\nto a royalty or similar payment, or has any other rights, in respect of any such
\nrights other than pursuant to the Contracts listed on Schedule 4.10. Neither the
\n ——–
\nCompany nor, to the knowledge of Seller, the other party or parties thereto, is
\nin breach of any license of sublicense with respect to any item of Intellectual
\nProperty. The Company or its Subsidiaries owns or has the right to use pursuant
\nto a valid license, sublicense, agreement or permission all items of
\nIntellectual Property used in the operation of their business as presently
\nconducted.<\/p>\n
4.25 Real Property.
\n ————-<\/p>\n
(a) The Company does not own any real property. Schedule 4.25(a)
\n ——–
\nlists and describes all real property (together with all Improvements thereon,
\nthe “Real Property”) now used, operated or occupied by the Company and the name
\nof the record owner thereof. For each parcel of Real Property listed on Schedule
\n ——–
\n4.25(a), the Company has made available to the Purchaser true and correct copies
\nof the Real Property lease or sublease (each a “Real Property Lease”) with
\nrespect to such Real Property. Each Real Property Lease is legal, valid,
\nbinding, enforceable and in full force and effect in all material respects, and
\nthe Company has not assigned, transferred, conveyed, mortgaged, deeded in trust
\nor encumbered any interest in the leasehold or subleasehold. The Company enjoys
\npeaceful and undisturbed possession of all Real Property leased by it, and the
\nCompany has fulfilled in all material respects all the obligations required to
\nbe performed by either of them through the date hereof with respect to each Real
\nProperty Lease.<\/p>\n
(b) The Company has received all required material approvals of
\nGovernmental Authorities (including Permits and material certificates of
\noccupancy or other similar certificates permitting lawful occupancy of the Real
\nProperty) required in connection with the present use of the Real Property and
\nall the Improvements thereon.<\/p>\n
29<\/p>\n
(c) All the Real Property is supplied with utilities and other
\nservices necessary for the operation of such facilities as currently operated.<\/p>\n
(d) All Improvements, and all Fixtures and equipment and other
\ntangible assets owned, leased or used by the Company on the Real Property are in
\ngood condition and repair in all material respects, subject to normal wear and
\ntear.<\/p>\n
(e) The Company has not received notice of any special assessment
\nrelating to any Real Property or any portion thereof, and the Seller has no
\nknowledge of any pending or threatened special assessment.<\/p>\n
(f) There is not now pending, or to the knowledge of the Seller,
\nthreatened, any eminent domain or condemnation proceeding affecting the Real
\nProperty or any portion thereof.<\/p>\n
4.26 European Community Concentration Threshold. For the fiscal year
\n ——————————————
\nended December 31, 1999 the Company’s and its Subsidiaries’ combined aggregate
\nNet Revenues derived from products sold or services rendered in each of any
\nthree European Community member countries did not exceed ECU 25 million per such
\nmember country.<\/p>\n
4.27 Governmental Authorities; Consents. Assuming the truth and
\n ———————————-
\ncompleteness of the representations and warranties of Purchaser contained in
\nthis Agreement, no consent, approval or authorization of, or designation,
\ndeclaration or filing with, any Governmental Authority or other third party is
\nrequired on the part of Seller or the Company with respect to Seller’s execution
\nor delivery of this Agreement or any of the Ancillary Agreements or the
\nconsummation of the transactions contemplated hereby or thereby, except for
\napprovals (a) under Antitrust Laws, (b) of the government of the United States
\nof America and (c) of the Inspector of Strategic Products.<\/p>\n
4.28 No Pending Transactions. Except for the transactions
\n ———————–
\ncontemplated by this Agreement, none of Seller, the Company or any of it
\nSubsidiaries is a party to, bound by or the subject of any agreement,
\nundertaking or commitment: (a) for the Company or any of its Subsidiaries to
\nmerge or consolidate with, or acquire all or substantially all of the property
\nand assets of, any other Person or (b) to sell, lease or exchange all or
\nsubstantially all of its property and assets of the Company or any of its
\nSubsidiaries to any other Person.<\/p>\n
4.29 Full Disclosure. No representation or warranty made by Seller in this
\n —————
\nAgreement, nor any document, exhibit, statement, certificate or schedule
\nattached to this Agreement or delivered by Seller at the Closing to Purchaser in
\nconnection with the transactions contemplated hereby contains any untrue
\nstatement of material fact or omits to state any material fact necessary to make
\nthe statement contained herein not misleading.<\/p>\n
ARTICLE V.
\n REPRESENTATIONS AND WARRANTIES OF PURCHASER<\/p>\n
Purchaser hereby represents and warrants to Seller as follows, except
\nas otherwise set forth on the Disclosure Schedule, which representations and
\nwarranties are, as of the date hereof, and will be, as of the Closing Date, true
\nand correct:<\/p>\n
30<\/p>\n
5.1 Organization of Purchaser. Purchaser is a corporation duly
\n ————————-
\norganized, validly existing and in good standing under the laws of the State of
\nDelaware with full corporate power and authority to conduct its business as it
\nis presently being conducted and to own and lease its properties and assets.
\nPurchaser is duly qualified to do business as a foreign corporation and is in
\ngood standing in each jurisdiction where the character of its properties owned
\nor leased or the nature of its activities make such qualification necessary,
\nexcept where the failure to be so qualified or in good standing would not have a
\nMaterial Adverse Effect on its business.<\/p>\n
5.2 Authorization. Purchaser has all requisite corporate power and
\n ————-
\nauthority, and has taken all corporate action necessary, to execute and deliver
\nthis Agreement and the Ancillary Agreements, to consummate the Transactions and
\nto perform its obligations hereunder and thereunder. The execution and delivery
\nof this Agreement and the Ancillary Agreements by Purchaser and the consummation
\nby Purchaser of the Transactions have been duly approved by the board of
\ndirectors of Purchaser. No other corporate proceedings on the part of Purchaser
\nare necessary to authorize this Agreement and the Ancillary Agreements and the
\ntransactions contemplated hereby and thereby. This Agreement has been duly
\nexecuted and delivered by Purchaser and is, and upon execution and delivery of
\nthe Ancillary Agreements, such Ancillary Agreements will be, legal, valid and
\nbinding obligations of Purchaser enforceable against it in accordance with its
\nterms.<\/p>\n
5.3 No Conflict or Violation. Neither the execution, delivery or
\n ————————
\nperformance of this Agreement nor the consummation of the transactions
\ncontemplated hereby, nor compliance by Purchaser with any of the provisions
\nhereof, violates any provision of, or will result in the breach of, any
\napplicable law, rule or regulation of any governmental body, the certificate of
\nincorporation, bylaws or other organizational documents of Purchaser, or any
\nmaterial agreement, indenture or other instrument to which Purchaser is a party
\nor by which Purchaser may be bound, or of any order, judgment or decree
\napplicable to any of them, or terminate or result in the termination of any such
\nagreement, indenture or instrument, or constitute any event which, after notice
\nor lapse of time or both, would result in any such violation, breach,
\nacceleration, termination or result in a violation or revocation of any required
\nlicense, permit or approval from any Governmental Authority or other third
\nparty.<\/p>\n
5.4 Governmental Authorities; Consents. Assuming the truth and
\n ————————
\ncompleteness of the representations and warranties of Seller and the Company
\ncontained in this Agreement, no consent, approval or authorization of, or
\ndesignation, declaration or filing with, any Governmental Authority or other
\nthird party is required on the part of Purchaser with respect to Purchaser’s
\nexecution or delivery of this Agreement or the consummation of the transactions
\ncontemplated hereby, except for approvals (a) under Antitrust Laws, (b) of the
\nUnited States Department of State and (c) of the Inspector of Strategic
\nProducts.<\/p>\n
5.5 Brokers’ Fees. No broker, finder, investment banker or other
\n ————-
\nPerson is entitled to any brokerage fee, finders’ fee or other commission for
\nwhich Seller could become liable in connection with the transactions
\ncontemplated by this Agreement based upon arrangements made by Purchaser or any
\nof its Affiliates.<\/p>\n
ARTICLE VI.
\n COVENANTS OF SELLER<\/p>\n
31<\/p>\n
6.1 Conduct of Business.
\n ——————-<\/p>\n
(a) From the date hereof through the Closing Date, Seller agrees
\nthat it shall, and shall cause the Company and its Subsidiaries, except as
\notherwise contemplated by this Agreement, as set forth on Schedule 6.1 or as
\n ——–
\nconsented to by Purchaser in writing, to operate their businesses in the
\nordinary course and consistent with past practice and not to take any action
\ninconsistent with this Agreement. Without limiting the generality of the
\nforegoing, unless consented to by Purchaser in writing, Seller shall cause the
\nCompany and its Subsidiaries not to, except as contemplated by this Agreement,
\ntake any of the actions set forth in clauses (i) through (xvii) below; provided,
\nhowever, that the restrictions imposed upon the Company’s Subsidiaries by
\noperation of this Section 6.1 shall not apply to the Haaglunds Joint Venture,
\nother than restrictions on the Company with respect to the Haaglunds Joint
\nVenture and its ownership interest therein:<\/p>\n
(i) change or amend the articles of association or other
\norganizational documents of BWS or its Subsidiaries;<\/p>\n
(ii) declare or pay any dividends, or make any distributions in
\nrespect of the Shares or other equity interests of the Company, or repurchase or
\nredeem any of the Shares or other equity interests of the Company;<\/p>\n
(iii) issue or sell any shares of capital stock of the Company
\nor any of its Subsidiaries or any other equity interest or any beneficial
\ninterest therein (including, without limitation, any options or warrants);<\/p>\n
(iv) enter into, extend, materially modify, terminate or renew
\nany Contract of a type required to be listed on Schedule 4.10 other than in the
\n ——–
\nordinary course of business;<\/p>\n
(v) sell, assign, transfer, convey, lease or otherwise dispose
\nof any interest in the Real Property or any other material asset of the Company
\nor any of its Subsidiaries other than sales of inventory in the ordinary course
\nof business;<\/p>\n
(vi) except as otherwise required by Law or consistent with
\npast practices, take any action with respect to the grant of any severance or
\ntermination pay (other than pursuant to policies or agreements of the Company as
\nthe case may be, in effect on the date hereof);<\/p>\n
(vii) make any change in the key management structure of the
\nCompany, including, without limitation, the hiring of additional officers or the
\nterminations of existing officers;<\/p>\n
(viii) acquire by merger or consolidation with, or merge or
\nconsolidate with, or purchase substantially all of the assets of, or otherwise
\nacquire any material assets or business of any other Person;<\/p>\n
(ix) make any material loans or advances to any Person;<\/p>\n
(x) make any material Tax election;<\/p>\n
32<\/p>\n
(xi) fail to maintain any material asset in substantially its
\ncurrent state of repair, normal wear and tear excepted;<\/p>\n
(xii) make any material change in its accounting policies or
\npractices;<\/p>\n
(xiii) make or agree to make aggregate capital expenditures in
\nexcess of 500,000 SEK;<\/p>\n
(xiv) waive, settle or release any claim or cause of action of
\nthe Company;<\/p>\n
(xv) declare or issue any bonus or other such payments, whether
\nor not in the ordinary course of business, to any management or executive
\nemployees of Company or its Subsidiaries;<\/p>\n
(xvi) alter, amend or in any way modify any Ancillary Agreement<\/p>\n
(xvii) enter into any agreement, or otherwise become obligated,
\nto do any action prohibited hereunder;<\/p>\n
(b) Seller agrees that, prior to the Closing, it shall, and shall
\ncause the Company to, use commercially reasonable efforts to (i) preserve
\nsubstantially intact the business organization of the Company and its
\nSubsidiaries, (ii) keep available to Purchaser the services of the key employees
\nof the Company and its Subsidiaries and (iii) preserve the current relationships
\nof the Company with the material customers and suppliers of, and other Persons
\nwhich have significant business relationships with, the Company and its
\nSubsidiaries subject in all cases to the exercise of reasonable business
\npractice.<\/p>\n
6.2 Foreign Sales Agreements. Seller shall use commercially reasonable
\n ————————
\nefforts to take such actions as are specified on Schedule 6.2 with respect to
\n ——–
\neach of the FSAs specified thereon.<\/p>\n
6.3 Antitrust Filings. In connection with the transactions contemplated
\n —————–
\nhereby, the Seller shall comply (and, to the extent required, shall cause the
\nCompany and its Subsidiaries or the Seller Affiliates, as applicable, to comply)
\nwith the notification and reporting requirements under all applicable Antitrust
\nLaws and shall use their respective best efforts to obtain any consent required
\nunder and early termination of any applicable waiting period under such
\nAntitrust Laws; provided, however, that in no event shall Seller or any of its
\nAffiliates be required to sell or retain any of the assets of the Company or any
\nof the Company’s Subsidiaries to obtain such consent or early termination.
\nSeller shall (and, to the extent required, shall cause the Company or its
\nAffiliates to) substantially comply with any additional requests for
\ninformation, including requests for production of documents and production of
\nwitnesses for interviews or depositions, by any Governmental Authority.<\/p>\n
6.4 No Solicitations. From the date hereof through the Closing Date,
\n —————-
\nSeller and the Company shall not, and shall not knowingly permit any of their
\nAffiliates, officers, directors, employees, trustees, representatives and agents
\nto, directly or indirectly, encourage, solicit,<\/p>\n
33<\/p>\n
participate in or initiate discussions or negotiations with, or provide any
\ninformation to, any Person or group of Persons (other than Purchaser or any of
\nits Affiliates) concerning any merger, sale of assets, sale of shares of capital
\nstock or similar transactions involving the Company or any of its Subsidiaries.
\nSeller shall (a) immediately notify Purchaser (orally and in writing) if any
\ndiscussions or negotiations are sought to be initiated, any inquiry or proposal
\nis made with respect to the Company or any of its Subsidiaries or any of their
\nrespective assets or properties, and (b) in respect of the Company, include in
\nsuch notification the terms of any such proposal or offer that it may receive
\nwith respect thereto (and provide Purchaser with a copy thereof in writing),
\nincluding the identity of the soliciting party and (c) keep Purchaser informed
\nwith respect to the status of the foregoing.<\/p>\n
6.5 Notice to Purchaser. Seller will promptly notify Purchaser of any
\n ——————-
\ncircumstance, event or action by Seller, the Company or otherwise, that causes
\nany representation or warranty made by Seller or the Company in this Agreement
\nto be inaccurate or incomplete in any material respect or that may have a
\nMaterial Adverse Effect and that has not been disclosed in the Disclosure
\nSchedules.<\/p>\n
6.6 Consents; Reasonable Effort. Unless waived specifically in
\n —————————
\nwriting by Purchaser, Seller will use commercially reasonable efforts to obtain
\nin writing any consents of any Governmental Authority or other third party
\n(pursuant to any Material Contract, Permit or otherwise) necessary for the
\nconsummation of the Transactions, in each case, in a form reasonably acceptable
\nto Purchaser and its counsel.<\/p>\n
6.7 Inspections. Prior to the Closing, Seller and the Company shall
\n ———–
\nprovide Purchaser and its representatives (including, without limitation, its
\nengineers, surveyors, attorneys and accountants), reasonable access during
\nnormal business hours to the Real Property and other assets of the Company and
\nits Subsidiaries. At all times prior to Closing, Purchaser and its
\nrepresentatives, upon reasonable prior notice to the Company shall have the
\nright to have access to the Company’s and its Subsidiaries’ employees, agents
\nand representatives to review all Books and Records of the Company, including
\nall the Real Estate Records, to enter onto the Real Property, and to inspect,
\nexamine and survey the Real Property or for any other reasonable business
\npurpose; provided that such access shall be given in such a manner so as not to
\nunreasonably interfere with the conduct of the business of the Company and its
\nSubsidiaries. Neither the Seller nor the Company shall be required to violate
\nany Law or any order from any Governmental Authority to comply with the
\nprovisions of this Section 6.7 (including any Antitrust Law restricting the
\n ——-
\ndisclosure of the price and other terms of any pending or future bid, if the
\nprovision of such information to Purchaser could reasonably be deemed to be
\ncollusion or price fixing in violation of such Antitrust law). For the purposes
\nof this Section 6.7, the Subsidiaries of the Company shall not include the
\nHaaglunds Joint Venture.<\/p>\n
6.8 Financial Statements. Within 30 days after the end of each
\n ——————–
\ncalendar month, the Company shall provide Purchaser with monthly financial
\nstatements, including a balance sheet of the Company as of the last Business Day
\nof such month and the related income statement with respect to such period. Such
\ninterim financial statements shall (a) be in accordance with the Books and
\nRecords of the Company, (b) be prepared in accordance with GAAP and the
\nAccounting Principles consistently applied throughout the periods covered
\nthereby (except for the absence of footnotes and other presentation items and
\nnormal year end adjustments, which individually and in<\/p>\n
34<\/p>\n
the aggregate will not be material) and (c) present fairly and accurately in
\naccordance with GAAP the assets, liabilities (including, without limitation, all
\nreserves) and financial condition of the Company as of the respective dates
\nthereof and the results of operations for the periods covered thereby. The
\nCompany shall not be required to violate any Law or any order from any
\nGovernmental Authority to comply with the provisions of this Section 6.8.<\/p>\n
6.9 Section 338 Election. Seller acknowledges that Purchaser has the
\n ——————–
\nright to make an election pursuant to Section 338(g) of the Internal Revenue
\nCode of 1986, as amended (the “Code”), with respect to the acquisition of the
\nstock of the Company and represents that the Company is not and was not a
\n“controlled foreign corporation,” a “passive foreign investment company” or a
\nforeign personal holding company”, as each such term is defined in the Code, at
\nany time during the portion of the Company’s taxable year that ends on the
\nClosing Date. In the event Purchaser determines that it intends to make such an
\nelection, Purchase shall so notify Seller. Within 30 days of the date of
\nPurchaser’s notice to Seller, Seller shall cause PricewaterhouseCoopers to
\nreview the tax consequences of such election to determine whether such election
\nwould result in any material tax liability to Seller and its Subsidiaries. If
\nPricewaterhouseCoopers determines that such a material tax liability will result
\nit shall deliver a written opinion stating its determination on or prior to the
\nend of such 30 day period. Purchaser agrees to pay the reasonable fees of
\nPricewarterhouseCoopers with respect to such determination and for the
\npreparation and delivery of such opinion , if any. If Seller fails to deliver to
\nPurchaser such opinion within such 30-day period, then Purchaser shall be free
\nto make the election without any further obligation to Seller. If Seller
\ndelivers such opinion to Purchaser within such 30-day period, then Purchaser may
\nmake the election; provided, however, that Purchaser shall indemnify Seller for
\nall material tax liabilities incurred by Seller or its Subsidiaries as a result
\nof Purchaser’s election.<\/p>\n
ARTICLE VII.
\n COVENANTS OF PURCHASER<\/p>\n
7.1 Antitrust Filings. In connection with the transactions
\n —————–
\ncontemplated by this Agreement, Purchaser shall comply (and, to the extent
\nrequired, shall cause its Affiliates to comply) with the notification and
\nreporting requirements of the all applicable Antitrust Laws and shall use its
\nreasonable best efforts to obtain any consent required under an early
\ntermination of any waiting periods under such Antitrust Laws; provided, however,
\n ——– ——-
\nin no event shall Purchaser or its Affiliates be required to divest or hold
\nseparate any of their assets or agree to the Company or its Subsidiaries
\ndivesting or holding any of their respective assets separately. Purchaser shall
\n(and, to the extent required, shall cause its Affiliates to) substantially
\ncomply with any additional requests for information, including requests for
\nproduction of documents and production of witnesses for interviews or
\ndepositions, by any Governmental Authority.<\/p>\n
7.2 Notice to Seller and the Company. Purchaser will promptly notify
\n ——————————-
\nSeller and the Company of any circumstance, event or action by Purchaser or
\notherwise, that causes any representation or warranty made by Purchaser in this
\nAgreement to be inaccurate or incomplete in any material respect or that may
\nhave a Material Adverse Effect and that has not been disclosed in the Disclosure
\nSchedules.<\/p>\n
35<\/p>\n
7.3 State Department Approval. Purchaser shall use commercially
\n ————————-
\nreasonable efforts to obtain the final approval of the United States Department
\nof State with respect to the transactions contemplated hereby.<\/p>\n
ARTICLE VIII.
\n COVENANTS OF SELLER AND PURCHASER<\/p>\n
8.1 Confidentiality.
\n —————<\/p>\n
(a) Except (i) for any governmental filings required in order to
\ncomplete the transactions contemplated hereby or by the Ancillary Agreements,
\n(ii) as Purchaser, the Seller may agree or consent in writing and (iii) as
\nprovided in Section 12.12, all information received by Purchaser, the Company or
\n ——-
\nSeller and their respective representatives pursuant to the terms of this
\nAgreement or otherwise heretofore provided to the receiving party in connection
\nwith the transactions contemplated hereby shall be kept in confidence by the
\nreceiving party and its representatives and shall not be used in any manner by
\nsuch party or its representatives except in connection with its performance or
\npreparing to perform under this Agreement; provided, however, that any party
\nhereto may disclose such information to its legal and financial advisors,
\nlenders, financing sources and their respective legal advisors and
\nrepresentatives so long as such Persons agree to maintain the confidentiality of
\nsuch information in accordance with this Section 8.1. Following the Closing,
\n ——-
\nSeller shall not, and shall cause its Affiliates not to, use or disclose to any
\nPerson any confidential or proprietary information of the Company or the
\nHagglunds Joint Venture. If the transactions contemplated hereby shall fail to
\nbe consummated, all copies of documents or extracts thereof containing
\ninformation and data as to one of the other parties, including all information
\nprepared by the receiving party or such receiving party’s representatives, shall
\nbe turned over to the party furnishing same, except that such information
\nprepared by the receiving party or such receiving party’s representatives may be
\ndestroyed at the option of the receiving party, with notice of such destruction
\n(or return) to be confirmed in writing to the disclosing party. Any information
\nnot so destroyed (or returned) will remain subject to these confidentiality
\nprovisions (notwithstanding any termination of this Agreement).<\/p>\n
(b) The foregoing confidentiality provisions shall not apply to
\nsuch portions of the information received which (i) are or become generally
\navailable to the public through no action by the receiving party or by such
\nparty’s representatives, (ii) are required to be disclosed by judicial or
\nadministrative process or by other requirements of Law, or (iii) are or become
\navailable to the receiving party on a nonconfidential basis from a source, other
\nthan the disclosing party or its representatives, which the receiving party
\nbelieves, after reasonable inquiry, is not prohibited from disclosing such
\nportions to it by a contractual, legal or fiduciary obligation, and shall not
\napply to any disclosure by Purchaser or the Company after the Closing.<\/p>\n
8.2 Cooperation and Records Retention. After the Closing Date, Seller
\n ———————————
\nshall (a) provide the Company with such assistance as may reasonably be
\nrequested by it in connection with the preparation of any return, audit, or
\nother examination by any taxing authority or judicial or administrative
\nproceedings relating to liability for any taxes, (b) provide the Company with
\nany records or other information that may be relevant to such return, audit or
\nexamination, proceeding or determination, and (c) provide the Company with any
\nfinal determination of any such audit or examination, proceeding, or
\ndetermination that affects any amount required to be shown on any tax <\/p>\n
36<\/p>\n
return for any period. Without limiting the generality of the foregoing, Seller
\nshall retain, until the applicable statutes of limitations (including any
\nextensions) have expired, copies of all tax returns, supporting work schedules,
\nand other records or information that may be relevant to such returns for all
\ntax periods or portions thereof ending on or before the Closing Date.<\/p>\n
8.3 India Guarantee Agreement. Prior to the Closing, Purchaser and
\n ————————-
\nSeller shall negotiate in good faith Exhibit B to the India Guarantee Agreement,
\na copy of which agreement (except for Exhibit B) is attached as Annex A hereto
\nand each of Purchaser and Seller shall execute a copy of such Agreement at the
\nClosing.<\/p>\n
ARTICLE IX.
\n CONDITIONS TO OBLIGATIONS<\/p>\n
9.1 Conditions to Obligations of Purchaser and Seller. The
\n ————————————————-
\nobligations of Purchaser and Seller to consummate, or cause to be consummated,
\nthe transactions contemplated hereby are subject to the satisfaction of the
\nfollowing conditions, any one or more of which may be waived in writing by such
\nparties:<\/p>\n
(a) All material permits, approvals, clearances, and consents
\nof, and all filings with, Governmental Authorities (including approvals under
\nall applicable Antitrust Laws and the approval of the Inspector of Strategic
\nProducts and the United States Department of State) in all applicable
\njurisdictions required to be procured by Purchaser, Seller or the Company in
\nconnection with the transactions contemplated hereby shall have been procured or
\nfiled and all applicable waiting periods in connection therewith shall have
\nexpired or been terminated.<\/p>\n
(b) There shall not be in force any order or decree, statute,
\nrule or regulation nor shall there be on file any complaint by a Governmental
\nAuthority seeking an order or decree, restraining, enjoining or prohibiting the
\nconsummation of the transactions contemplated hereby or by the Ancillary
\nAgreements and none of Purchaser, Seller or the Company shall have received
\nnotice from any Governmental Authority that it has determined to institute any
\nsuit or proceeding to restrain or enjoin the consummation of the transactions
\ncontemplated hereby or by the Ancillary Agreements or to nullify or render
\nineffective this Agreement or any of the Ancillary Agreements if consummated, or
\nto take any other action which would result in the prohibition or a material
\nchange in the terms of the transactions contemplated hereby or by the Ancillary
\nAgreements.<\/p>\n
(c) Seller shall have delivered a certified set of Disclosure
\nSchedules and either (i) Purchaser shall not have delivered to Seller a written
\nnotice objecting to such Disclosure Schedules in accordance with Section 2.6 or
\n(ii) any such objection shall have been resolved or withdrawn in a manner
\nmutually satisfactory to each of Purchaser and Seller.<\/p>\n
9.2 Conditions to Obligations of Purchaser. The obligations of
\n ————————————–
\nPurchaser to consummate, or cause to be consummated, the transactions
\ncontemplated hereby are subject to the satisfaction of the following additional
\nconditions, any one or more of which may be waived in writing by Purchaser:<\/p>\n
37<\/p>\n
(a) Each of the representations and warranties of Seller
\ncontained in this Agreement shall be true and correct in all material respects
\nboth on the date hereof and as of the Closing, as if made at and as of that
\ntime, and each of the covenants and agreements of Seller to be performed as of
\nor prior to the Closing shall have been duly performed in all material respects.<\/p>\n
(b) Seller shall have delivered to Purchaser a certificate
\nsigned by Seller, dated as of the Closing Date, certifying that, the conditions
\nspecified in Section 9.1, as they relate to Seller and the Company, and Section
\n ——- ——-
\n9.2 have been fulfilled.<\/p>\n
(c) Any consent required for the consummation of the
\ntransactions contemplated hereby under any Material Contract or for the
\ncontinued enjoyment by the Company or its Subsidiaries party thereto of the
\nbenefits of any such Material Contract after the Closing shall have been
\nobtained.<\/p>\n
(d) There shall not have occurred any material adverse change in
\nthe business, assets, liabilities, condition (financial or otherwise), results
\nof operation or prospects of the Company.<\/p>\n
(e) All Persons listed on Schedule 9.2(e) who are members of the
\n ——–
\nBoard of Directors of the Company shall have resigned such directorships,
\neffective as of the Closing Date upon acceptance by Purchaser.<\/p>\n
(f) Purchaser shall have received an opinion, dated as of the
\nClosing Date, from counsel to Seller, in a form reasonably satisfactory to
\nPurchaser and its counsel.<\/p>\n
(g) Seller and the Company shall have delivered all assignments,
\nconsents, approvals and other documents, certificates and instruments to be
\ndelivered by the Seller according to this Agreement to the Purchaser<\/p>\n
(h) The form of all actions, proceedings, instruments and
\ndocuments required to consummate the transactions contemplated hereby shall be
\nsatisfactory in all reasonable respects to Purchaser and its counsel.<\/p>\n
(i) None of Seller, its Subsidiaries or the Company shall have
\namended any of the Ancillary Agreements as in effect as of the date hereof
\nwithout the prior written consent of Purchaser.<\/p>\n
(j) Seller shall have delivered to Purchaser the certificate
\nevidencing the floating charge against the assets of the Company or shall
\notherwise provide evidence of its cancellation as is reasonably acceptable to
\nPurchaser and its counsel .<\/p>\n
(k) Seller and the Purchaser shall have agreed on the form of
\nExhibit B to the India Guarantee Agreement and Seller shall have executed and
\ndelivered a copy of such Agreement to Purchaser.<\/p>\n
9.3 Conditions to the Obligations of Seller. The obligations of
\n —————————————
\nSeller to consummate the transactions contemplated hereby are subject to the
\nsatisfaction of the following additional conditions, any one or more of which
\nmay be waived in writing by Seller:<\/p>\n
38<\/p>\n
(a) Each of the representations and warranties of Purchaser
\ncontained in this Agreement shall be true and correct in all material respects
\nboth on the date hereof and as of the Closing, as if made anew at and as of that
\ntime, and each of the covenants and agreements of Purchaser to be performed as
\nof or prior to the Closing shall have been duly performed in all material
\nrespects.<\/p>\n
(b) Purchaser shall have delivered to Seller and the Company a
\ncertificate signed by an officer of Purchaser, dated as of the Closing Date,
\ncertifying that, the conditions specified in Section 9.1, as they relate to
\n ——-
\nPurchaser, and Section 9.3 have been fulfilled.
\n ——-<\/p>\n
(c) The form and substance of all actions, proceedings,
\ninstruments and documents required to consummate the transactions contemplated
\nhereby shall be reasonably satisfactory in all respects to Seller and Seller’s
\ncounsel.<\/p>\n
(d) FPG shall have released Seller from any obligation under the
\nPension Guarantee.<\/p>\n
(e) Seller shall have been unconditionally released from each of
\nthe Performance Guarantees, or with respect to any Performance Guarantees for
\nwhich it shall not have been unconditionally released, Seller shall have
\nreceived a guarantee from Purchaser with respect to Seller’s obligations
\nthereunder in a form reasonably acceptable to each of Purchaser and Seller.<\/p>\n
(f) Purchaser shall have obtained a statement from the U.S.
\nDepartment of State on behalf of the United States government reasonably
\nsatisfactory to Seller to the effect that, upon compliance with the provisions
\nregarding the cordoning off of BWS’s activities related to India as set forth in
\nthat certain letter from Purchaser to the U.S. Department of State dated as of
\nJune 8, 2000, the U.S. Government will not affect BWS’s business activities
\nrelated to India.<\/p>\n
(g) The Company shall have executed the Escrow Agreement and
\nshall have wired to the Escrow Agent the initial amount to be held in the Escrow
\nAccount in accordance with Section 11.7(b).<\/p>\n
(h) Seller and the Purchaser shall have agreed on the form of
\nExhibit B to the India Guarantee Agreement and Purchaser shall have executed and
\ndelivered a copy of such Agreement to Seller.<\/p>\n
ARTICLE X.
\n TERMINATION<\/p>\n
10.1 Termination. This Agreement may be terminated as follows:
\n ———–<\/p>\n
(a) By mutual written consent of the parties at any time prior
\nto the Closing.<\/p>\n
(b) Prior to the Closing, by written notice to Seller from
\nPurchaser, (i) in the event of a material breach of this Agreement by the
\nCompany or the Seller if such breaching party fails to cure such breach within
\nten (10) Business Days following notification thereof by the Purchaser, (ii) if
\nthe Closing has not occurred on or before October 31, 2000 and Purchaser is not
\nin <\/p>\n
39<\/p>\n
material breach of a representation, warranty, covenant or agreement or (iii) if
\nconsummation of the Transactions is enjoined, prohibited or otherwise restrained
\nby the terms of a final, non-appealable order or judgment of a court of
\ncompetent jurisdiction.<\/p>\n
(c) Prior to the Closing, by written notice to Purchaser from
\nSeller, (i) in the event of a material breach of this Agreement by Purchaser, if
\nPurchaser fails to cure such breach within ten (10) Business Days following
\nwritten notification thereof by Seller or the Company, (ii) if the Closing has
\nnot occurred on or before October 31, 2000 and Seller is in material breach of a
\nrepresentation, warranty, covenant or agreement of either Seller or the Company
\nor (iii) if consummation of the Transactions is enjoined, prohibited or
\notherwise restrained by the terms of a final, non-appealable order or judgment
\nof a court of competent jurisdiction.<\/p>\n
10.2 Effect of Termination. In the event of termination of this
\n ———————
\nAgreement pursuant to Section 10.1, this Agreement shall forthwith become void
\n ——-
\nand have no effect, without liability on the part of any party hereto or their
\nrespective Affiliates, officers, directors or stockholders, other than liability
\nof Seller, or Purchaser as the case may be, for any misrepresentation contained
\nherein, or any breach of this Agreement occurring prior to such termination. The
\nprovisions of Section 10.1 and this Section 10.2 shall survive any termination
\n ——- ——-
\nof this Agreement.<\/p>\n
10.3 Risk of Loss. If any material portion of the assets of the
\n ————
\nCompany or its Subsidiaries (the “Assets”) is destroyed or damaged by fire or
\nany other cause on or prior to the Closing Date, the Seller shall give written
\nnotice to Purchaser as soon as practicable after, but in any event within five
\n(5) calendar days of, discovery of such damage or destruction, including
\nspecification of the amount of insurance, if any, covering such Assets and the
\namount, if any, that Seller or the Company are otherwise entitled to receive as
\na consequence of such damage or destruction. Prior to the Closing, Purchaser
\nshall have the option, which shall be exercised by written notice to the Company
\nwithin fifteen (15) Business Days after receipt of the Company’s notice or if
\nthere are not fifteen (15) Business Days prior to the Closing Date, as soon as
\npracticable prior to the Closing Date, of (a) accepting such Assets in their
\ndestroyed or damaged condition in which event Purchaser shall be entitled to the
\nproceeds of any insurance or other proceeds payable with respect to such loss,
\nor the cash equivalent thereof, and subject to Article XII, to such
\n ———–
\nindemnification for any uninsured portion of such loss pursuant to Article XII,
\n ———–
\nand the full Closing Cash Consideration shall be paid to Seller at the Closing,
\n(b) if agreed by Seller, excluding such Assets from this Transactions, in which
\nevent the Closing Cash Consideration shall be reduced by the amount allocated to
\nsuch Assets, as mutually agreed between the parties, or (c) after providing
\nSeller and the Company with a reasonable opportunity to cure, terminating this
\nAgreement in accordance with Article X, if such damage or destruction has a
\n ———
\nMaterial Adverse Effect or results in any representation or warranty of Seller
\ncontained herein being untrue in any material respect. Solely for purposes of
\nthis Section 10.3, “Subsidiaries” shall not include the Hagglunds Joint Venture.<\/p>\n
40<\/p>\n
ARTICLE XI.
\n POST CLOSING OBLIGATIONS; SURVIVAL OF REPRESENTATION<\/p>\n
The parties covenant and agree as follows with respect to the period
\nsubsequent to the Closing Date:<\/p>\n
11.1 Indemnification.
\n —————<\/p>\n
(a) Purchaser’s Right to Indemnification. Seller undertakes and
\n ————————————
\nagrees subject to the terms and conditions of this Agreement to indemnify and
\nhold harmless Purchaser, its stockholders, Affiliates, successors and assigns
\nand their respective directors, officers, employees, shareholders,
\nrepresentatives and agents (hereinafter referred to collectively as “Purchaser
\nIndemnitees”) from and against and in respect of any and all losses, costs,
\nliabilities, claims, obligations, damages and expenses, including reasonable
\nattorneys’ fees (together “Claims”), incurred or suffered by a Purchaser
\nIndemnitee arising from or relating to (i) any breach, misrepresentation, or
\nother violation of any of the Seller’s covenants, warranties or representations
\ncontained in this Agreement; (ii) any Pre-Closing Environmental Matters; (iii)
\nany Claim by Hagglunds or its Affiliates relating to any default by the Company
\nunder any agreement with respect to the Hagglunds Joint Venture, including any
\nClaim with respect to the respective work shares of BWS and Hagglunds with
\nrespect thereto, to the extent that such Claim relates to work performed or
\nrevenue accrued prior to the Closing Date; (iv) sales pursuant to the supply
\nContract and\/or license agreements between the president of India and AB Bofors
\neach dated as of March 24, 1986 to the extent such Claim arises from actions or
\nobligations of Celsius, its Affiliates or their representatives; (v) the
\noperation of the business of CWS, whether before, on or after the Closing Date,
\nincluding the transfer of shares of the capital stock of CWS to Seller; or (vi)
\nany and all actions, suits, proceedings, claims demands, assessments, judgments,
\ncosts and expenses incident to any of the foregoing or incurred to oppose the
\nimposition thereof, or in enforcing this indemnity; together with interest at
\nthe Prime Rate (as defined below) on any such Claim from the date of incurrence
\nby such Purchaser Indemnitee(s) until the date of reimbursement by Seller.
\n“Prime Rate” shall mean the prime rate as published in the Money Rates column of
\nthe Eastern Edition of the Wall Street Journal (or the average of such rates if
\nmore than one rate is indicated), in effect on the date of incurrence of such
\nClaim.<\/p>\n
(b) Seller’s Right to Indemnification. Purchaser undertakes and
\n ———————————
\nagrees to indemnify, defend by counsel reasonably acceptable to Seller and hold
\nharmless Seller, its representatives and agents (hereinafter referred to
\ncollectively as “Seller Indemnitees”) from and against and in respect of any and
\nall Claims arising from or relating to (i) a breach, misrepresentation, or other
\nviolation of any of Purchaser’s covenants, warranties and representations
\ncontained in this Agreement; and (ii) any and all actions, suits, proceedings,
\nclaims, demands, assessments, judgments, costs and expenses, incident to any of
\nthe foregoing or incurred to oppose the imposition thereof; together with
\ninterest at the Prime Rate on any such claim from the date of incurrence by such
\nSeller Indemnitee(s) to the date of reimbursement by Purchaser.<\/p>\n
(c) Conduct of Proceedings. If any claim or proceeding covered
\n ———————-
\nby the foregoing agreements to indemnify and hold harmless shall arise, the
\nparty who seeks indemnification (the “Indemnified Party”) shall give written
\nnotice thereof to the other party (the “Indemnitor”) promptly after the
\nIndemnified Party learns of the existence of such claim or <\/p>\n
41<\/p>\n
proceeding; provided, however, that the Indemnified Party’s failure to give the
\nIndemnitor prompt notice shall not bar the Indemnified Party’s right to
\nindemnification unless such failure has materially prejudiced the Indemnitor’s
\nability to defend the claim or proceeding, (i) take control of the defense and
\ninvestigation of such claim or proceeding, (ii) employ and engage attorneys of
\nits own choice (subject to the approval of the indemnified party, such approval
\nnot to be unreasonably withheld) to handle and defend the same, at the
\nindemnifying party’s sole cost, risk and expense, and (iii) compromise or settle
\nsuch claim, which compromise or settlement shall be made only with the written
\nconsent of the Indemnified Party; provided that the Indemnitor shall not have
\nthe right to control the defense of any such claim or proceeding unless it has
\nacknowledged in writing its obligation to indemnify the Indemnified Party fully
\nfrom all liabilities incurred as a result of such claim or proceeding and then
\nand periodically thereafter provides the Indemnified Party with reasonably
\nsufficient evidence of the ability of the Indemnitor to satisfy any such
\nliabilities. The parties will fully cooperate in any such action, and shall make
\navailable to each other any books or records useful for the defense of any such
\nclaim or proceeding. If the Indemnitor fails to acknowledge in writing its
\nobligation to defend against or settle such claim or proceeding within twenty
\n(20) days after receiving notice thereof from the Indemnified Party (or such
\nshorter time specified in the notice as the circumstances of the matter may
\ndictate), the Indemnified Party shall be free to dispose of the matter, at the
\nexpense of the Indemnitor, in any way in which the Indemnified Party deems to be
\nin its best interest. All payments made pursuant to Section 11.1 of this
\nAgreement or pursuant to any other claim for indemnification hereunder shall be
\ntreated as an adjustment to the Purchase Price. <\/p>\n
(d) Limitations on Indemnification. Notwithstanding anything to
\n ——————————
\nthe contrary in this Section 11.1:
\n ——- <\/p>\n
(i) An Indemnifying Party shall have no indemnity
\nobligations under this Section 11.1 with respect to any Claims for breaches of
\n ——-
\nrepresentations or warranties in this Agreement until the aggregate amount of
\nall Claims against such Indemnifying Party exceeds Five Million (5,000,000) SEK,
\nat which time the full amount of all Claims against such Indemnifying Party
\nshall be due without regard to such threshold amount;<\/p>\n
(ii) In no event shall either Party’s indemnity
\nobligations under this Section 11.1 with respect to any Claims for breaches of
\n ——-
\nrepresentations or warranties in this Agreement, except for the representations
\nset forth in Section 4.3, exceed Twenty Million (20,000,000) SEK plus the amount
\n ——-
\nreceived by Seller pursuant to Sections 2.2(b) and (c) hereof;
\n ——– <\/p>\n
(iii) In no event shall either Party’s indemnity
\nobligations under this Section 11.1 with respect to any Claims for breaches of
\n ——-
\nrepresentations or warranties in this Agreement apply to any Claim first
\nasserted after the applicable survival period set forth for such Claim in
\nSection 11.3;
\n——-<\/p>\n
(iv) In no event shall Seller’s indemnity obligations
\nunder this Section 11.1 with respect to any Claims for breaches of the
\n ——-
\nrepresentations or warranties in Section 4.3 of this Agreement exceed the Total
\n ——-
\nConsideration agreed to be paid to Seller.<\/p>\n
(v) The Seller’s indemnity obligations under this Section
\n ——-
\n11.1 with respect to any Claims (x) for breaches of the representations and
\nwarranties of the Seller in <\/p>\n
42<\/p>\n
Section 4.21 of this Agreement or (y) pursuant to Section 11.1(a)(ii), shall not
\n——-
\napply if and to the extent the Claim arises out of or in connection with (A) any
\nvoluntary remedial actions taken by Purchaser or Purchaser’s successor in
\ninterest, which actions are not reasonably necessary to comply with any order of
\nany Governmental Authority in order to comply with Environmental Laws or (B) to
\nthe extent that Purchaser takes any action to use the Real Property or any real
\nproperty owned or used by any Minority Subsidiary for any purpose not reasonably
\nrelated to the business of the Company and its Subsidiaries as such business is
\nconducted from time to time hereafter; provided, however, Seller acknowledges
\n ——– ——-
\nthat the Company does not control the Minority Subsidiaries and Seller shall not
\nbe released from its obligations if the other shareholders of the Minority
\nSubsidiaries cause the Minority Subsidiary to sell the property or to otherwise
\nchange the use of such property.<\/p>\n
(vi) In no event shall Seller’s indemnity obligations
\nunder this Section 11.1 extend to any Claims for indirect or consequential
\n ——-
\nlosses other than indirect or consequential losses claimed by any third party
\nfor which any Purchaser Indemnitee is entitled to indemnification hereunder.<\/p>\n
(vii) The amount of any indemnity obligation of Seller
\nunder this Section 11.1 shall be net of the amount of any reserve on the Closing
\n ——-
\nBalance Sheet with respect to the Claim giving rise to such obligation.<\/p>\n
(viii) If any Claim giving rise to an indemnity obligation
\nunder this Section 11.1 gives rise to a currently realizable Tax Benefit (as
\n ——-
\ndefined below) to the party making such Claim, the amount of such indemnity
\nobligation shall be reduced by the amount of the Tax Benefit available to the
\nparty making the Claim. For purposes of this Section 11.1(d)(viii), a “Tax
\nBenefit” means an amount by which the tax liability of the party is reduced
\n(including, without limitation, by deduction, reductions of income by virtue of
\nincreased tax basis or otherwise, entitlement to refund, credit or otherwise)
\nplus any related interest received from the relevant taxing authority. Where a
\n—-
\nparty has other losses, deductions, credits or items available to it, the Tax
\nBenefit from any losses, deductions, credits or items relating to the Claims
\nshall be deemed to be realized only after the utilization of such other losses,
\ndeductions, credits or items. For the purposes of this Section 11.1(d)(viii), a
\nTax Benefit is “currently realizable” to the extent it can be reasonably
\nanticipated that such Tax Benefit will be realized in the current taxable period
\nor year or in any tax return with respect thereto or in any taxable period or
\nyear prior to the date of the Claim. In the event that there should be a
\ndetermination disallowing the Tax Benefit, the indemnifying party shall be
\nliable to refund to the indemnified party the amount of any related reduction
\npreviously allowed or payments previously made to the indemnifying party
\npursuant to this Section 11.1(d)(viii).<\/p>\n
(e) Indemnification Sole Remedy. After the Closing Date, the
\n —————————
\nright to indemnification under this Article XI, subject to the limitations set
\n ——-
\nforth in Section 11.1(d), shall be the exclusive remedy of any party in
\n ——-
\nconnection with any breach by another party of its representations, warranties,
\nor covenants or any other default under this Agreement, and neither party shall
\nmake or assert any claim under this Agreement or related to the transactions
\ncontemplated by this Agreement (but not the Ancillary Agreements), regardless of
\nthe form of action, except under and in accordance with this Article XI,
\n ——-
\nprovided that this shall not affect the right (a) of Purchaser to make a claim
\nfor specific performance as provided in Section 12.14, or (b)
\n ——-<\/p>\n
43<\/p>\n
of either party to make a claim for damages arising from the other party’s
\nwillful misrepresentation or willful misconduct up to a limit of the total
\namount paid to Seller under this Agreement.<\/p>\n
(f) Any payment under this Article XI shall be treated by the
\nparties as an adjustment to the Total Consideration for tax purposes.<\/p>\n
11.2 Survival of Representations. The representations and warranties
\n —————————
\ncontained herein shall survive for two (2) years after the Closing without
\nlimitation and without regard to any investigation made by any of the parties
\nhereto; provided, however, that the representations and warranties made by the
\nCompany and Seller in Sections 4.3, 4.12 and 4.21 shall survive until 90 days
\n ——–
\nafter the termination of the applicable statute of limitations (as extended or
\ntolled), but shall in no way survive longer than ten (10) years after the
\nClosing.<\/p>\n
11.3 Rights of Set-Off. Any Claims by Purchaser against Seller
\n —————–
\npursuant to Section 11.1 above are subject to any the following rights of set-
\n ——-
\noff or payment, at the option of Purchaser in its sole discretion:<\/p>\n
(a) Reduction of Post-Closing Adjustment. Any payment owed by
\n ————————————
\nPurchaser to Seller pursuant to Section 2.4 is subject to reduction for any
\n ——-
\nClaims pursuant to Section 11.1 above. Any such adjustment is intended as, and
\n ——-
\nshall be treated by the parties as, an adjustment to the Total Consideration.<\/p>\n
(b) Reduction of Earn-Out. Any payment owed by Purchaser to
\n ———————
\nSeller pursuant to Section 2.2(b) or (c) is subject to reduction for any Claims
\n ——-
\npursuant to Section 11.1 above. Any such adjustment is intended as, and shall be
\n ——-
\ntreated by the parties as, an adjustment to the Total Consideration.<\/p>\n
(c) Reduction of Pension Refund. Reduction of Earn-Out. Any
\n ————————— ———————
\npayment owed by Purchaser to Seller pursuant to Section 11.4 is subject to
\n ——-
\nreduction for any Claims pursuant to Section 11.1 above. Any such adjustment is
\n ——-
\nintended as, and shall be treated by the parties as, an adjustment to the Total
\nConsideration. <\/p>\n
11.4 Pension Refund. In the event that the Company receives a refund
\n ————–
\nfrom SPP (whether in cash or in the form of a credit by SPP which may be applied
\nby the Company against the obligation to make future payments to SPP), to the
\nextent such refund is not accrued on the Closing Balance Sheet, the Company
\nshall promptly pay to Seller an amount equal to such refund (net of any Taxes
\nthe Company must pay thereon) to the extent such refund relates to any payment
\nmade to SPP by the Company prior to the Closing Date; provided, however, in the
\nevent such refund is issued in the form of a credit, the Company shall not be
\nrequired to pay such amount to Seller until the earliest date on which the
\nobligation against which such credit may be applied is due and payable by the
\nCompany.<\/p>\n
11.5 Hagglunds Joint Venture. With respect to all orders received by
\n ———————–
\nthe Hagglunds Joint Venture for products or services related to the Combat
\nVehicle 90 program following the Closing Date, Purchaser shall cause the Company
\nto comply in all material respects with the detailed sharing of work tasks
\nbetween Hagglunds and the Company set forth in Appendix 1 of the Consortium
\nAgreement between HB, Bofors and Hagglunds Regarding the Combat <\/p>\n
44<\/p>\n
Vehicle 90, and shall in no event make any claim to Hagglunds that the workload
\nwith respect to such future orders is required to be shared on a 50\/50 basis
\nnotwithstanding the fact that the allocation of work tasks with respect to such
\norder would result in the Company being entitled to less than fifty percent
\n(50%) of the workshare with respect to such order if allocated in accordance
\nwith such Appendix 1.<\/p>\n
11.6 Skaana Receivable. In the event that the long-term account
\n —————–
\nreceivable owed by Skaana to the Company has not been paid in full on or before
\nMay 31, 2001, Purchaser or the Company may provide written notice to Seller
\nspecifying the amount which remains unpaid as of the date of such notice (the
\n“Unpaid Skaana Receivable Amount”). Seller shall within thirty (30) days
\nthereafter pay to the Company any such Unpaid Skaana Receivable Amount and the
\nCompany shall assign such account receivable to Seller or its designee. In the
\nevent that after receiving payment of the full Unpaid Skaana Receivable Amount
\nfrom Seller, the Company thereafter receives any amount from Skaana on account
\nof such receivable, it shall pay such amount to Seller.<\/p>\n
11.7 Seller Guarantees.
\n —————–<\/p>\n
(a) Prior to the Closing, Seller, the Company and Purchaser
\nshall (i) use commercially reasonable efforts to obtain an unconditional release
\nof Seller for its obligations under the performance guarantees set forth on
\nSchedule 11.7(a) hereto (the “Performance Guarantees”) from each of the
\nbeneficiaries thereof which release shall be effective as of the Closing Date
\nand which commercially reasonable efforts by Purchaser shall include an offer by
\nPurchaser to enter into performance guarantees in favor of such beneficiaries
\neffective as of the Closing on substantially similar terms as the Performance
\nGuarantees and (ii) use commercially reasonable efforts to obtain an
\nunconditional release of Seller from its guarantee in favor of FPG dated as of
\nMarch 26, 1999 (the “Pension Guarantee”) and to cause the Company to assume any
\nobligations thereunder or otherwise provide security arrangements satisfactory
\nto FPG with respect to the Company’s obligations guaranteed thereby. Seller
\nshall, and shall cause the Company to, use commercially reasonable efforts to
\nstructure security arrangements for advanced payments received by the Company
\nafter the date hereof so that Seller and its Affiliates (other than the Company)
\nare not guarantors thereof and shall notify the Purchaser prior to entering into
\nany such arrangement after the date hereof.<\/p>\n
(b) At the Closing, the Company shall deposit with a financial
\ninstitution or trust company, mutually acceptable to Purchaser and Seller, (the
\n“Escrow Agent”), an amount equal to the lesser of (x) 50% of an amount equal to
\n(A) the aggregate stated maximum amount for which Seller may have any obligation
\nas of the Closing Date of each of the guarantee obligations, performance bonds
\nand\/or letters of credit set forth on Schedule 11.7(b) (collectively, the
\n“Financial Obligations”) minus (B) the Retained Obligations Adjustment Amount
\n —–
\nand (y) 160,000,000 SEK plus 50% of any guarantee obligations, performance bonds
\n —-
\nand\/or letters of credit issued by or on behalf of Seller after the date hereof
\nand prior to the Closing Date to guarantee repayment by the Company of any cash
\nadvance payment received by the Company as of the Closing Date (“Post-Signing
\nFinancial Obligations”), to be held in escrow (the “Escrow Account”) and
\ninvested in accordance with the terms of this Section 11.7(b) and an escrow
\n ——-
\nagreement in a form to be agreed upon by Purchaser and Seller prior to the
\nClosing Date (the “Escrow Agreement”); provided, however, that in no event shall
\nthe amount retained in escrow be less than the aggregate amount of Financial
\nObligations for which Seller remains liable under the <\/p>\n
45<\/p>\n
Financial Obligations identified on Schedule 11.7(b) as B-48, B-84, BWS-32, BWS-
\n54, BWS-55, BWS-56 and BWS-57. Notwithstanding the foregoing, the Company shall
\nuse commercially reasonable efforts to minimize the amount of any Post-Signing
\nFinancial Obligations and to issue any letters of credit and\/or performance
\nbonds required with respect to any cash advance payment received by the Company
\nafter the date hereof by or on behalf of the Company. The Retained Obligations
\nAdjustment Amount shall mean Sixty-One Million (61,000,000) SEK. Purchaser shall
\ncause the Company to take such actions as are reasonably necessary under Swedish
\nLaw to grant and perfect a first priority security interest in the Escrow
\nAccount in favor of Seller as security for the Company’s obligations under this
\nSection 11.7.<\/p>\n
(c) Both before and after the Closing, Purchaser, the Company
\nand Seller shall cooperate and use their respective commercially reasonable
\nefforts to cause each of the Financial Obligations and the Post-Signing
\nFinancial Obligations to be replaced by performance bonds and\/or letters of
\ncredit issued for the account of the Company as soon as possible but in any
\nevent on or prior to December 31, 2002; provided, however in no event shall such
\n ——– ——-
\ncommercially reasonable efforts by Purchaser be deemed to require Purchaser to
\nguarantee or otherwise incur any obligation (contingent or otherwise) with
\nrespect to such liabilities or to grant any concession or pay any amount to the
\nholder of such guarantee as a condition thereof; provided, further, Seller
\n ——– ——-
\nacknowledges that such releases will require action by third parties, and it
\nshall not be a breach of this subsection (c) if such third party is unwilling to
\ngrant such release. If any such Financial Obligations and Post-Signing Financial
\nObligations are not so replaced, following the Closing, the Company shall
\nindemnify Seller for any amounts actually paid by Seller in respect of such
\nFinancial Obligations or Post-Signing Financial Obligations except to the extent
\nsuch amount is required to be paid as a result of any breach of any
\nrepresentation and warranty set forth in Article III of this Agreement. In the
\n ——-
\nevent that Seller is required to pay any amount with respect to such Financial
\nObligations or Post-Signing Financial Obligations, Seller shall provide written
\nnotice to Purchaser and the Company, which notice shall specify the date of such
\npayment by Seller, the amount of such payment and contain copies of any
\ncorrespondence with respect thereto. The Company shall within ten (10) Business
\nDays after receipt of such written notice pay the amount specified in such
\nnotice to Seller or provide written notice of the facts and circumstances
\nconstituting such breach of representation and warranty (an “Objection Notice”).
\nIn the event that the Company does not pay such amount or deliver an Objection
\nNotice on or before such tenth (10th) Business Day, Seller shall be entitled to
\nbe paid such amount from the Escrow Account by providing written notice to the
\nEscrow Agent in accordance with the terms of the Escrow Agreement and the
\nCompany shall within ten (10) Business Days thereafter be required to pay such
\namount into Escrow so that the total amount in the Escrow Account equals the
\nRequired Escrow Amount (as defined below).<\/p>\n
(d) If on the later to occur of (i) December 31, 2001 and (ii)
\none year after the Closing Date, the amount of all Financial Obligations exceeds
\nthe amount then in the Escrow Account, the Purchaser shall deposit such
\nadditional amount in the Escrow Account as may be necessary so that the amount
\nheld in the Escrow Account equals the amount of such Financial Obligations.<\/p>\n
(e) In the event that at any time after the Closing Date the
\namount then in the Escrow Account exceeds the amount of all Financial
\nObligations then outstanding, the Escrow Agreement shall provide that such
\nexcess amount shall be paid to the Company. Thereafter, the <\/p>\n
46<\/p>\n
Escrow Agreement shall provide that as the aggregate amount of Financial
\nObligations decreases, such that the amount held in the Escrow Account exceeds
\nthe aggregate amount of Financial Obligations outstanding such excess amount
\nshall be distributed to the Company until such time as the Financial Obligations
\nequal zero. So long as the aggregate amount of all Financial Obligations exceeds
\nthe amount in the Escrow Account, the Company shall not declare or pay any
\ndividend of cash or other assets of the Company to the Purchaser or its
\nSubsidiaries. At any time hereafter, the Company may substitute a letter of
\ncredit in form and substance reasonably satisfactory to Seller for all or any
\nportion of the Required Escrow Amount by delivering such letter of credit to the
\nEscrow Agent who shall distribute from the Escrow Account in exchange therefor
\nan amount of cash equal to the face amount of such letter of credit.<\/p>\n
(f) The Company shall reimburse Seller for the actual out of
\npocket expense incurred to any third party with respect to any Financial
\nObligations and the Post-Signing Financial Obligations for which the Company is
\nnot required to incur any similar expense.<\/p>\n
ARTICLE XII.
\n MISCELLANEOUS<\/p>\n
12.1 Waiver. Either party to this Agreement may, at any time prior to
\n ——
\nthe Closing, waive any of the terms or conditions of this Agreement; provided,
\nhowever, any such waiver must be in writing, executed in the same manner as this
\nAgreement by the party against whom such waiver is to be enforced. No delay on
\nthe part of any party in exercising any right, power or privilege hereunder
\nshall operate as a waiver thereof, nor shall any waiver on the part of any party
\nof any right, power or privilege hereunder, nor any single or partial exercise
\nof any other right, power or privilege hereunder, preclude any other or further
\nexercise thereof or the exercise of any other right, power or privilege
\nhereunder.<\/p>\n
12.2 Notices. All notices and other communications among the parties
\n ——-
\nshall be in writing and shall be deemed to have been duly given when (i)
\ndelivered in person, or (ii) three (3) Business Days after having been sent by a
\nrecognized international courier service such as DHL or FedEx, or (iii)
\ndelivered by telecopy and promptly confirmed by delivery in person or courier
\nservice as aforesaid in each case, with postage prepaid, addressed as follows:<\/p>\n
If to Purchaser, to: <\/p>\n
United Defense Industries, Inc.
\n 1525 Wilson Blvd.
\n Suite 700
\n Arlington, VA 22209
\n Telecopy No.: (703) 312-6196
\n Attention: David Kolovat, General Counsel <\/p>\n
47<\/p>\n
with copies to (which shall not constitute notice): <\/p>\n
Latham & Watkins
\n 1001 Pennsylvania Avenue, N.W.
\n Suite 1300
\n Washington, D.C. 20004
\n Attention: David S. Dantzic
\n Telecopy No.: (202) 637-2201 <\/p>\n
If to Seller, to: <\/p>\n
Celsius AB
\n P.O. Box 7214
\n SE-103 88 Stockholm
\n Sweden <\/p>\n
Attention: John Ershammar <\/p>\n
or to such other address or addresses as the parties may from time to time
\ndesignate in writing.<\/p>\n
12.3 Assignment. This Agreement shall not be assigned by operation of
\nlaw or otherwise by any party hereto; provided, however, that the Purchaser may
\nassign this Agreement and the Purchaser’s rights but not its obligations
\nhereunder in whole or in part without the prior written consent of any other
\nparty hereto (i) to any direct or indirect, wholly-owned Subsidiary of the
\nPurchaser, (ii) to a lender as security and (iii) to any Person who acquires all
\nor a portion of the Shares from Purchaser following the Closing (by merger,
\nrecapitalization, sale of interests or otherwise) or all or substantially all of
\nthe assets of the Company or any of its Subsidiaries.<\/p>\n
12.4 Rights of Third Parties. Nothing expressed or implied in this
\n ———————–
\nAgreement is intended or shall be construed to confer upon or give any Person,
\nother than the parties hereto, any right or remedies under or by reason of this
\nAgreement.<\/p>\n
12.5 Reliance. Each of the parties to this Agreement shall be deemed
\n ——–
\nto have relied upon the accuracy of the written representations and warranties
\nmade to it in or pursuant to this Agreement, notwithstanding any investigations
\nconducted by or on its behalf or notice, knowledge or belief to the contrary.<\/p>\n
12.6 Transfer Taxes; Title Costs; Expenses. Notwithstanding any other
\n ————————————-
\nprovision hereof, and except as provided in the Intellectual Property License
\nAgreement, Seller shall be solely responsible for the costs and expenses of all
\nrecording fees (on a per-page basis or otherwise), transfer taxes, conveyance
\ntaxes, sales and use taxes, stamp taxes and other taxes (solely to the extent
\nthat such taxes have been levied or imposed by any Swedish Governmental
\nAuthority and not by any other Governmental Authority), incurred or otherwise
\npayable in connection with the transactions contemplated by this Agreement and
\nthe Ancillary Agreements. Such payments shall be made by Seller promptly after
\nincurred, but in any event on or prior to the Closing Date or, in the case of
\ntaxes, fees and charges that may accrue or arise after the Closing Date,
\npromptly after the date that such obligation so accrues or arises. All other
\ncosts and expenses <\/p>\n
48<\/p>\n
incurred by the parties in connection with the transactions contemplated hereby
\nshall be borne by the party incurring such expense.<\/p>\n
12.7 Construction. This Agreement shall be construed and enforced in
\n ————
\naccordance with the laws of Sweden without regard to the conflicts of law
\nprovisions thereof. Unless otherwise stated, references to Sections, Articles,
\nExhibits or Schedules refer to the Sections, Articles, Exhibits and Schedules to
\nthis Agreement. The parties to this Agreement participated jointly in the
\nnegotiation and drafting of this Agreement. If any ambiguity or question of
\nintent or interpretation shall arise with respect to this Agreement, then this
\nAgreement shall be construed as if drafted jointly by the parties and no
\npresumption or burden of proof will arise favoring or disfavoring any party to
\nthis Agreement by virtue of the authorship of any provision of this Agreement.<\/p>\n
12.8 Captions; Counterparts. The captions in this Agreement are for
\n ———————-
\nconvenience only and shall not be considered a part of or affect the
\nconstruction or interpretation of any provision of this Agreement. This
\nAgreement may be executed in two or more counterparts, each of which shall be
\ndeemed an original, but all of which together shall constitute one and the same
\ninstrument.<\/p>\n
12.9 Entire Agreement. This Agreement (together with the Schedules
\n —————-
\nand Annexes to this Agreement and, from and after the Closing Date, the
\nAncillary Agreements which constitute part of this Agreement) constitutes the
\nentire agreement among the parties and supersede any other agreements, whether
\nwritten or oral, that may have been made or entered into by or among any of the
\nparties hereto or any of their respective Subsidiaries relating to the
\nTransactions. No representations, warranties, covenants, understandings,
\nagreements, oral or otherwise, relating to the transactions contemplated by this
\nAgreement exist between the parties except as expressly set forth in this
\nAgreement.<\/p>\n
12.10 Amendments. This Agreement may be amended or modified in whole
\n ———-
\nor in part, only by a duly authorized agreement in writing executed in the same
\nmanner as this Agreement and which makes reference to this Agreement.<\/p>\n
12.11 Severability. Any term or provision of this Agreement that is
\n ————
\ninvalid or unenforceable in any situation in any jurisdiction shall not affect
\nthe validity or enforceability of the remaining terms and provisions hereof or
\nthe validity or enforceability of the offending term or provision in any other
\nsituation or in any other jurisdiction.<\/p>\n
12.12 Publicity. All press releases, other public communications of
\n ———
\nany nature whatsoever, or other notices to third parties (except as contemplated
\nby Section 8.1) relating to the transactions contemplated by this Agreement, and
\n ——-
\nthe method of the release for publication thereof, shall be subject to the prior
\nmutual approval of each other party hereto which approval shall not be
\nunreasonably withheld by any party; provided, however, that, nothing herein
\nshall prevent any party from publishing such press releases or other public
\ncommunications as such party may consider necessary in order to satisfy such
\nparty’s legal or contractual obligations after such consultation with the other
\nparties hereto as is reasonable under the circumstances.<\/p>\n
49<\/p>\n
12.13 Arbitration. All disputes arising out of or in connection with
\n ———–
\nthis Agreement shall be finally settled under the UNICTRAL Arbitration Rules by
\nthree arbitrators appointed by the London Court of International Arbitration.
\nThe arbitral proceedings shall be conducted in English and take place in London.<\/p>\n
12.14 Purchaser’s Remedies. Seller agrees that the Shares represent
\n ——————–
\nunique property that cannot be readily obtained on the open market and that
\nPurchaser would be irreparably injured if this Agreement is not specifically
\nenforced after default. Therefore, Purchaser shall have the right specifically
\nto enforce Seller’s performance under this Agreement, and Seller agrees to waive
\nthe defense in any such suit that Purchaser has an adequate remedy at law and to
\ninterpose no opposition, legal or otherwise, as to the propriety of specific
\nperformance as a remedy, and that Purchaser shall have the right to obtain
\nspecific performance of the terms of this Agreement without being required to
\nprove actual damages, post bond or furnish other security. In addition,
\nPurchaser shall be entitled to obtain from Seller, court costs and reasonable
\nattorneys’ fees incurred by Purchaser in enforcing its rights hereunder. As a
\ncondition to seeking specific performance, Purchaser shall not be required to
\nhave tendered the Closing Cash Consideration, but shall be ready, willing and
\nable to do so. In the event Purchaser elects to terminate this Agreement as a
\nresult of Seller’s default, instead of seeking specific performance, then
\nPurchaser shall be entitled to recover its damages resulting from Seller’s
\ndefault, plus reasonable attorney’s fees and court costs incurred by Purchaser
\nin enforcing its rights under this Agreement.<\/p>\n
50<\/p>\n
IN WITNESS WHEREOF the parties have hereunto caused this Agreement to
\nbe duly executed as of the date first above written.<\/p>\n
CELSIUS AB<\/p>\n
By: \/s\/ PER OVE MORBERG
\n ——————–
\n Name: PER OVE MORBERG
\n Title: EXECUTIVE VICE-PRESIDENT<\/p>\n
UNITED DEFENSE INDUSTRIES, INC.<\/p>\n
By: \/s\/ FRANCIS RABORN
\n ——————-
\n Name: FRANCIS RABORN
\n Title: VICE-PRESIDENT AND
\n CHIEF FINANCIAL OFFICER<\/p>\n
51<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9167],"corporate_contracts_industries":[9477],"corporate_contracts_types":[9622,9627],"class_list":["post-43656","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-united-defense-industries-inc","corporate_contracts_industries-aerospace__vehicles","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43656","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43656"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43656"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43656"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43656"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}