EXHIBIT 2.1
SHARE PURCHASE AGREEMENT
DATE 31 MAY 2000
CONTRACT PARTIES
1. Tor Fjeringby
Bjorn Isaksen
Terje Jorgensen
Jack Jacobsen
Bjorn Mollerod
Knut Loken
Espen Jorgensen
Thorbjorn Vestby
("the Shareholders")
and
2. JOTEC AESP AS org.nr 940 211 700, Karihaugvn. 102, Postboks 50,
Ellingsrudasen 1006, Oslo
("the Buyer")
have today agreed upon the following
CONTRACT:
1. INTRODUCTION
JOTEC AESP AS wishes to take over, and The Shareholders wish to sell, each and
all of the shares in Lanse AS, under the conditions stipulated in this contract.
Articles of Incorporation and Certificate of Registration for Lanse AS are
attached as ANNEX 1 to this agreement.
The parties enter into this contract under the following conditions
1. The agreement is approved by the Buyer's Board of Directors
and lenders.
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2. The agreement is duly approved by the necessary public
authorities, including the US Securities and Exchange
Commission.
In light of the above stipulated terms, the parties have agreed upon the
following:
2. THE SHARES
The Shareholders are obligated to sell each and all of their shares in Lanse AS
(1.500 shares a NOK 100), subject to the stipulations as set forth in this
contract. The Shareholders warrant that they have full and unencumbered
proprietary interest in all of the issued shares. The shares are neither pledged
nor in any other way encumbered towards own creditors or third parties'
creditors. The shares are not encumbered in any other way. The transfer of the
shares shall include the transfer of all existing rights pertaining to the
shares, including the right to all forms of dividend for the current financial
year.
3. WAIVER OF RIGHT OF FIRST REFUSAL
The Shareholders shall refrain from exercising their right of first refusal in
connection with the transfer of shares. The above mentioned waiver shall apply
regardless of whether the right is based on statutory law, Articles of
Incorporation, Shareholders Agreements or on any other grounds.
4. TAKEOVER DATE
4.1 For the purpose of this agreement, the take-over date shall be no later
than 31.05.2000 (hereafter the Takeover Date).
Take over shall take place in the Seller's office simultaneously with
the signing of this contract and the other actions that are set forth
in this section.
4.2 The Shareholders shall no later than the Takeover Date, hand over to
the Buyer:
(a) The share register which shows that The Shareholders are the
title holders and owners of the number of shares that each of
them is selling to the Buyer.
(b) Lanse AS' complete set of up-to-date protocols and accounting
books.
(c) Notice of resignation from all current Board members effective
as of the Take- over Date and provided that this contract is
executed.
(d) Notice given to ERFA Revisjon as the companies' accountant,
effective as of the moment when the Buyer has appointed an
accountant.
(e) Signed forms necessary to change proxy given to Lanse AS' bank
connection.
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4.3 Lanse AS shall hold a board meeting where
(a) The transfer of all shares in Lanse AS to the Buyer is
approved;
(b) The notices set forth in section 4.2 (c) and (d) are presented
and approved;
(c) Notice of shareholders' meeting is immediately sent
4.4 Before the Takeover Date, an extraordinary shareholders' meeting is to
be held, where the articles of incorporation are amended to proceed
with the transfer of shares.
4.5 Immediately following the Buyer's fulfillment of his obligations
pursuant to section 5.1 and 5.2, an extraordinary shareholders' meeting
is to be held where the Buyer elects Lanse AS' new Board members and
accountant.
5. THE BUYER'S DUTIES
5.1 Immediately following the handing over of the documents as set forth in
section 4.2, the Buyer shall
(a) transfer the total amount of NOK 2.375.000,- (two million
three hundred and seventy five thousand) to the passive
shareholder's bank accounts (shareholders who are not employed
by Lanse AS), in accordance with the number of shares that
each possesses, as stipulated in ANNEX 2 to this agreement.
(b) Transfer the total amount of NOK 2.760.000,- (two million
seven hundred and sixty thousand) to the active shareholder's
bank accounts (shareholders who are employed by Lanse AS) in
accordance with the number of shares each possesses, as
stipulated in ANNEX 3 to this agreement.
5.2 In addition to receiving the cash payment as set forth in section 5.1,
the Shareholders shall receive shares in Advanced Electronic Support
Products Inc (hereafter AESP), which owns each and all of the shares in
the Buyer. The shares are as of the Takeover Date, unregistered. The
Buyer shall in cooperation with AESP procure that the shares are
registered. The Sellers are familiar with the fact that such
registration can take up to 3-6 months to complete and that the Buyers
in cooperation with AESP will start registration together with other
registrations. Notwithstanding the preceding, the registration process
is not expected to last longer than necessary. The process shall start
no later than 1. July 2000, by the registration documents being sent to
the proper authority. A confirmation shall be sent to the Buyer as soon
as possible, stating that the authorized but unissued shares are
registered in the Shareholders' names.
After registration, the shares are to be listed on the Nasdaq stock
exchange in New York as common shares of AESP. The shares can be traded
with the ensuing limitations of this contract.
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The passive shareholders shall receive shares for the total amount of
NOK 2.375.000,- (two million three hundred and seventy five thousand).
The active shareholders shall receive shares for the total amount of
NOK 2.760.000,- (two million seven hundred and sixty thousand).
The active and passive Shareholders are familiar with the fact that
they must refrain from exercising any rights in connection with the
shares before they have been duly and formally registered.
5.3 The exact number of AESP shares which are to be transferred to the
Shareholders will depend on the price of the ordinary common shares,
calculated as the average market price in the US for the last 20 days
leading up to the Takeover Date. The exchange rate between USD and NOK
shall be based on the rate when takeover takes place. The above
described payments shall be final, provided that the Shareholders'
warranties (stipulated under section 7) are satisfactory on the
Takeover Date.
The Buyer is not obligated to go through with the purchase of the
shares unless the sale is in accordance with the conditions set forth
in this contract.
6. INSPECTION OF FINANCIAL STATEMENTS AND ASSETS
The Buyer and his accountant have together with Lanse AS' accountant reviewed
the companies financial information, profit and loss results and balance sheets
as of 31 .12. 1999, (ANNEX 4 to this agreement). The Buyer has been informed of
the accounting principles, method of evaluation for each balance item, the size
of balance depreciation and year-end appropriations.
Lanse AS' income statements per 31.5 2000 shall be finished and reviewed based
on the same principles. The Buyer and Lanse AS shall cooperate to complete the
accounts which shall be finished no later than 20.06.2000.
7. THE SHAREHOLDERS' WARRANTIES
7.1 Assets, furniture and fixtures
7.1.1 The Shareholders warrant that all assets are purchased without
retention of title and that there are no other encumbrances.
7.1.2 The Shareholders warrant that the sale of Lanse AS' shares will not
affect the companies' rights relating to or deriving from the above
mentioned assets, nor will it lead to any other third part obtaining
any such rights.
7.2 Insurance
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7.2.1 The Shareholders undertake to keep all insurance in force and to pay
insurance premium until the Takeover Date. The Shareholders have not
undertaken any action, and will refrain from undertaking any such
action in the future, which intentionally might render the insurance
invalid or which might cause the premium to increase.
7.2.2 The Shareholders are not aware of any outstanding insurance claims or
any circumstances which might lead to such claims being filed.
7.3 Accounts receivable
Accounts receivable are not expected to result in any loss due to any
circumstances that have arisen before the Takeover Date. Prospective
losses of this type will result in a reduction of the purchase price.
7.4 Intellectual property rights
7.4.1 Lanse AS is the titleholder of all licenses for all intellectual
properties which are being used by Lanse AS.
7.4.2 The Shareholders have not transferred or allowed other persons or
companies to use the companies intellectual property beyond those
rights which are not transferable or exclusive and which are a part of
Lanse AS' ordinary business management.
7.4.3 The Shareholders have not disclosed, or allowed disclosure of, the
companies' professional know-how, trade secrets, confidential
information, list over clients, vendors and prices, apart from the
information which is disclosed as part of Lanse AS' ordinary business
management.
7.5 The Shareholders breach of contract
7.5.1 The Shareholders have not committed breach of any contract or other
commitment which the company is party to, notwithstanding a default
under the contract with Ulleval Sykehus as mentioned in letter to
Alcatel Distribusjon AS Region 0st, dated 18.10.1999.
7.5.2 The Shareholders are not familiar with any current claims against the
company for any outstanding obligation or for other breach of contract.
The Shareholders are not familiar with any existing grounds which may
result in the premature termination of any of the companies substantial
rights, entitlements or other business advantages, or which may worsen
the underlying conditions or terms for these rights.
7.6 Governing law
7.6.1 Neither the Shareholders nor any of the companies' employees have, to
the Shareholders' knowledge, violated any Norwegian or foreign laws or
committed any offences in connection with business conduct. The Sellers
have not received complaints of or otherwise been charged with such
offences.
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7.6.2 If it is discovered during inspection of accounts, that a violation of
Norwegian or foreign law has been committed before the Takeover Date,
then it shall be the Shareholders' responsibility to resolve the
problems.
7.6.3 The Shareholders warrant that until the Takeover Date, the company will
conduct business consistent with good business practice and in
accordance with the same business principles which the company has been
using.
7.7 Disputes
7.7.1 To The Shareholders' knowledge, the company is not currently involved
in any law suit in any civic court or court of arbitration. There are
no indications that such lawsuit will be filed by or against the
company, except the circumstances accounted for under section 7.5.1.
There are no prior unsettled verdicts convicting Lanse AS.
7.7.2 At the time of the Takeover Date, there are no disputes between the
company and the tax authorities or any other public body in Norway or
abroad, over the companies conduct. There are as of the Takeover Date
no circumstances which may give rise to any such lawsuit.
7.7.3 Lanse AS is at the Takeover Date, not familiar with any existing claim
or warning of such claim against the company, by or on behalf of any
employee or other third party based on accidents or damages (including
death) which are not covered by the companies insurance.
8. EMPLOYMENT OF SHAREHOLDERS
This contract is based on the condition that those Shareholders who at
the time of takeover are employed by Lanse AS (" Active Shareholders ")
maintain their current conditions of employment in Lanse AS in Oslo,
for a minimum period of 2 years, as from the Takeover Date.
Should any of the Active Shareholders choose to resign during this two
year period, or otherwise be discharged due to breach of the employment
contract, a proportional adjustment of the agreed purchase price which
is stipulated in section 5 shall be made, where the resigning employee
is to pay back an amount which is calculated based on one of the
following formulas:
(a) If the employee resigns or is discharged within 12 months of
the Takeover Date:
(number of Lanse shares x NOK 6.667) - (number of Lanse shares
x NOK 6.667) x the number of months he has worked since the
Takeover Date : 24
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(b) If the employee resigns or is discharged in the period between
12 moths and 24 months from the Takeover Date:
(number of Lanse shares x NOK 2.135) - (Number of Lanse shares
sold x NOK 2.135) x number of months which the employee has
worked from the Takeover Date: 24
9. BREACH OF WARRANTIES
9.1 Cost
Should the Shareholders default the warranties set forth in this
contract, then they will be obligated to cover reasonable and necessary
costs to indemnify the Buyer so that the Buyer will be placed in the
same economic condition as though such breach had not occurred. This
clause does not prevent or exclude the Buyer from filing any statutory
claim.
The Shareholders can only be held accountable for the amount which
exceeds NOK 750.000.-
9.2 Counterclaim from the Shareholders
Should Lanse AS on 31.12.1999 have assets which were not accounted for
in the balance of the same date, or should the debt be estimated to be
too high, then the Shareholders are entitled to be credited this amount
as a counterclaim to the Buyer's price abatement claim.
9.3 Time limit for Buyer's claims
The Buyer can not advance claims based on defaulted warranties which
have not been advanced within three months after the breach was
discovered or should have been discovered.
Claims for costs can not under any circumstances be advanced later than
1 year after the Takeover Date, except for claims relating to
supplementary taxation issues where the time limit is deemed to be 10
years.
10. NON-COMPETITION CLAUSE
The Active Shareholders undertake for a period of 2 years from the
Takeover Date, to desist from conducting, promoting or otherwise being
engaged, directly or indirectly, in businesses which are in competition
with Lanse AS. The Active Shareholders shall refrain from persuading or
otherwise seeking to influence clients or employees to terminate their
contracts with Lanse AS.
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11. CONFIDENTIALITY
The Shareholders and the Buyer undertake not to disclose confidential
information concerning this agreement to other third parties.
The Buyer shall in cooperation with the Shareholders prepare a
statement to the press.
12. AMENDMENTS
Amendments to this agreement shall be made in writing and must be
signed by the parties.
13. DISPUTES
13.1 Disputes arising from this contract shall be settled according to
governing Norwegian law.
13.2 Disputes arising from this contract, which can not be settled amicably
through negotiations, shall be settled by arbitration under the Rules
of Arbitration pursuant to The Civil Procedure Code chapter 32,and
where Oslo is deemed to be the proper legal venue.
***
This contract is signed by each of the parties or their duly authorized
representatives, and is executed in duplicate, one original copy for each party.
Oslo, 31. May 2000
Buyer:
/s/
--------------------------
On behalf of Jotec AESP AS
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Seller:
/S/ TOR FJERINGBY /S/ BJORN ISAKSEN
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Tor Fjeringby Bjorn Isaksen
/S/ TERJE JORGENSEN /S/ JACK JACOBSEN
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Terje Jorgensen Jack Jacobsen
/S/ BJORN MOLLEROD /S/ KNUT LOKEN
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Bjorn Mollerod Knut Loken
/S/ ESPEN JORGENSEN /S/ THORBJORN VESTBY
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Espen Jorgensen Thorbjorn Vestby
