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Title: |
Sale and Purchase Agreement |
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Entities: |
Aeroflex Inc.; National Westminster Bank plc; Skadden, Arps, Slate, Meagher & Flom LLP |
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Date: |
2005 |
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Size: |
Preview shows 10KB of 129KB total |
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Price: |
$49 |
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ID: |
#1137901 |
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<SEQUENCE>2
<FILENAME>spaubi.txt
<DESCRIPTION>SALE AND PURCHASE AGREEMENT
<TEXT>
Dated 23 May 2005
(1) UBINETICS HOLDINGS LIMITED as Seller
(2) AEROFLEX TEST SOLUTIONS LIMITED as Purchaser
------------------------------------------------------------------------
SALE AND PURCHASE AGREEMENT
for the entire issued share capital of UbiNetics Limited together with
such parts of the SPG business as are conducted in India, Japan and
Hong Kong
------------------------------------------------------------------------
SUBJECT TO CONTRACT
STRICTLY PRIVATE AND CONFIDENTIAL
MAYER
BROWN
ROWE
& MAW
LONDON
<PAGE>
CONTENTS
CLAUSE PAGE
1. Definitions and interpretation...................................1
2. Agreement to sell and purchase..................................13
3. Consideration...................................................14
4. Completion......................................................16
5. Indian Completion...............................................17
6. Joint Account...................................................18
7. Contracts.......................................................19
8. Employees.......................................................20
9. Warranties......................................................25
10. Purchaser's warranties..........................................26
11. Guarantees......................................................26
12. Restrictions on Seller..........................................27
13. Asbestos indemnity..............................................29
14. Announcements and confidentiality...............................30
15. Costs...........................................................32
16. Entire agreement................................................34
17. Continuing effect...............................................34
18. Invalidity......................................................34
19. Amendments, variations and waivers..............................34
20. Further assurance and assistance................................35
21. Counterparts....................................................36
22. Assignment and third party rights...............................37
23. Notices.........................................................37
24. Governing law and jurisdiction..................................38
<PAGE>
SCHEDULES
1. Details of the Company
2. Intellectual Property
3. Completion arrangements
4. Warranties
5. Limitations on claims
6. The Properties
7. Completion Net Asset Statement
8. Earn Out Consideration
9. Guarantees
10. Conduct of the Indian Business until Indian Completion
11. Conditions
<PAGE>
DOCUMENTS IN THE AGREED TERMS
Deed of Tax Covenant
Disclosure Letter
Letters of resignation for Directors and the secretary
Letters of resignation for auditors
Powers of attorney
Local Agreement relating to the Indian Assets
Local Agreement relating to the Far East Assets
Letter of Instructions
Transitional Services Agreement
Deed of Guarantee
Indemnity for lost share certificate
Deed of Waiver of Intra-Group Debt
Deed of Waiver of Dividend
<PAGE>
THIS AGREEMENT is dated 23 May 2005 and made between:
(1) UBINETICS HOLDINGS LIMITED a company incorporated in England and Wales
(registered number 03936291) whose registered office is at Cambridge
Technology Centre, Back Lane, Melbourn, Royston, Hertfordshire SG8 6DP (the
"SELLER"); and
(2) AEROFLEX TEST SOLUTIONS LIMITED a company incorporated in England and Wales
(registered number 03491978) whose registered office is at Longacres House,
Six Hills Way, Stevenage SG1 2AN (the "PURCHASER").
BACKGROUND:
(A) UbiNetics Limited is a company limited by shares incorporated in England
and Wales on 16 October 1998 with registered number 03650692. Further
details of the Company are set out in Schedule 1 (Details of the Company).
(B) The Seller has agreed to sell or procure to be sold and the Purchaser has
agreed to purchase:
(i) the entire issued share capital of the Company; and
(ii) the Assets,
for the consideration and upon the terms set out in this Agreement.
IT IS AGREED THAT:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINED TERMS
In this Agreement:
"ADDITIONAL EMPLOYEE" means each of those persons working in the
Indian Business or the Far East Business who are based in India, Japan
or Hong Kong and who are listed by hire date, job title and location
on the list of Additional Employees disclosed at Disclosure Document
5.84;
"AGREED PAYMENT" shall have the meaning set out in Paragraph 4.4, Part
1 of Schedule 7 (Completion Net Asset Statement);
"AGREED TERMS" means, in relation to any document, that document in
the terms agreed between the parties and signed or initialled for
identification purposes only by or on behalf of each party prior to
execution of this Agreement;
"AMOUNT CLAIMED" means in respect of any Claim the amount claimed
(including costs and expenses incurred) in respect of the relevant
Claim;
"ASBESTOS" means the fibrous silicate material in any form commonly
referred to as asbestos and includes asbestos fibres and any asbestos
containing materials;
1
<PAGE>
"ASBESTOS HEALTH LOSSES" means all or any liabilities, damages, costs
and expenses (including all expert, professional and legal fees) and
to the extent allowable by law fines and penalties in each case
incurred by the Company and/or the Purchaser and/or the Purchaser's
Group in respect of any claim made or threatened in writing by any
Relevant Company Employee (including their estate or family) or other
person (including consultants, contractors and visitors to the
Melbourn Site) in respect of which the Company owed a duty of care
prior to the Completion Date which in each case are in relation to any
Asbestos Illness suffered or sustained by the Relevant Company
Employee or such other person;
"ASBESTOS ILLNESS" means any illness, injury, disease or death
(including but without limitation asbestosis, mesothelioma, cancer of
the bronchii or peritoneum) arising from or related to the exposure to
Asbestos at, in, on, over or under the Melbourn Site prior to the
Completion Date;
"ASBESTOS INDEMNITY" means the indemnity set out at Clauses 13.1 and
13.2;
"ASBESTOS INDEMNITY PERIOD" means the period of 6 years from the
Completion Date;
"ASSETS" means the Indian Assets, the Far East Assets and the benefit
(subject to the burden) of the Contracts;
"ASSET REGISTER" means the register of assets of the Business
disclosed at Disclosure Document 3.1.64;
"AUDIT COSTS" means the sum of (pound)264,375 payable by the Seller to
the Seller's Accountants;
"BALANCE SHEET DATE" means 31 December 2004;
"BALANCING PAYMENT DATE" means the first Business Day date falling
three Business Days after the Net Worth Confirmation Date;
"BUSINESS" means the development and supply by the Company and other
members of the Seller's Group of test and measurement solutions for 3G
and next generation wireless radio cellular networks and 3G and next
generation wireless cellular telephones;
"BUSINESS DATA" means data relating predominantly to the Business and
"RETAINED DATA" means data relating predominantly to the VPT Business;
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