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FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported) May 6, 1997
ADVANCED MACHINE VISION CORPORATION
(Exact name of registrant as specified in its charter)
California
(State or other jurisdiction of incorporation)
0-20097 33-0256103
(Commission File Number) (I.R.S. Employer Identification No.)
2067 Commerce Drive
Medford, Oregon 97504
(Address of principal executive offices) (Zip Code)
541-776-7700
(Registrant's telephone number, including area code)
ARC Capital
(Former name or former address, if changed since last report)
Total Number of Pages: 24
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<PAGE>
Item 2. Acquisition or Disposition of Assets
------------------------------------
On May 6, 1997, Advanced Machine Vision Corporation sold all
of the outstanding stock of Pulsarr Holding BV ("Pulsarr") to
Barco NV of Belgium for $8.4 million in cash. The sale of
Pulsarr followed an unsolicited offer from Barco with the
price being determined by arms-length negotiations. Pulsarr is
engaged in the design and manufacture of machine vision
sorting equipment for the food processing industry. Pulsarr's
assets and liabilities included principally accounts
receivable, inventory, property, plant and equipment, accounts
payable, bank borrowings, accruals, mortgages and other items.
Item 5. Other Events
------------
On April 9, 1997, Mr. Asif Ahmad and Dr. Nagaraj Murthy
resigned as members of Advanced Machine Vision Corporation's
Board of Directors. Simultaneously, the size of the board was
reduced from nine to seven members.
Item 7. Financial Statements and Exhibits
---------------------------------
b. Unaudited Proforma Financial Information
Balance Sheet at March 31, 1997
Statement of Operations for the Year Ended December 31,
1996
Statement of Operations for the Quarter Ended March 31,
1997
c. Exhibits
Share Purchase Agreement between Barco NV and ARC
Netherlands BV dated April 29, 1997
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ARC CAPITAL
Date: May 9, 1997 By: /s/ Alan R. Steel
------------------------------
Vice President of Finance and
Chief Financial Officer
<PAGE>
Item 7.b. Unaudited Proforma Financial Information
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Introductory Information
------------------------
On May 6, 1997, Advanced Machine Vision Corporation (the
"Company" or "AMV") sold all of the outstanding capital stock
of Pulsarr Holding BV ("Pulsarr") to Barco NV of Belgium for
$8.4 million in cash, resulting in a gain of approximately $5
million. The Company had purchased Pulsarr on March 1, 1996
for cash of $6.5 million and notes payable of $1.3 million.
The gain on the sale of Pulsarr is largely a result of the
previous reduction in the carrying value of AMV's investment
in Pulsarr due to the $4.9 million charge for acquired
in-process technology the Company recorded in the quarter
ended March 31, 1996 in conjunction with this acquisition.
The unaudited proforma statement of operations for the year
ended December 31, 1996 and the unaudited proforma statement
of operations for the quarter ended March 31, 1997 were
prepared as if the sale had occurred at the beginning of the
periods presented. The unaudited proforma balance sheet as of
March 31, 1997 was prepared as if the sale had taken place on
March 31, 1997.
The unaudited proforma financial information is intended to
provide information about the continuing impact of the sale by
showing how it might have affected historical financial
statements if it had been consummated at an earlier date. This
information is not necessarily indicative of future operations
or the actual results that would have occurred had the sale
been consummated at the beginning of the earliest period
presented. This information should be read in conjunction with
the accompanying notes to the unaudited proforma financial
information.
<PAGE>
Advanced Machine Vision Corporation
Unaudited Proforma Balance Sheet
March 31, 1997
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
(in thousands)
<S> <C> <C> <C>
Proforma
--------------------------------
Historical Adjustments (A) Results
----------- --------------- -----------
ASSETS
Current assets:
Cash and cash equivalents $ 2,710 $ 7,005 $ 9,715
Accounts receivable, net 4,931 (2,371) 2,560
Inventories 8,479 (3,576) 4,903
Prepaid expenses and other assets 630 (501) 129
----------- ----------- -----------
Total current assets 16,750 557 17,307
Property, plant and equipment, net 6,297 (1,888) 4,409
Intangible assets, net 7,546 (1,500) 6,046
Other assets 1,467 (263) 1,204
----------- ----------- -----------
$ 32,060 $ (3,094) $ 28,966
=========== =========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 2,378 $ (1,563) $ 815
Short-term borrowings 799 (799) --
Accrued liabilities 1,621 (630) 991
Customer deposits 2,471 (1,403) 1,068
Accrued payroll 942 -- 942
Warranty reserve 469 (66) 403
Current portion of long-term liabilities 1,443 (153) 1,290
----------- ----------- -----------
Total current liabilities 10,123 (4,614) 5,509
----------- ----------- -----------
Long-term liabilities, less current portion 14,551 (3,689) 10,862
----------- ----------- -----------
Shareholders' equity:
Common stock 25,986 -- 25,986
Common stock warrants 2,403 -- 2,403
Additional paid in capital 2,797 -- 2,797
(Accumulated deficit) (23,601) 5,010 (18,591)
Cumulative translation adjustment (199) 199 --
----------- ----------- -----------
Total shareholders' equity 7,386 5,209 12,595
----------- ----------- -----------
$ 32,060 $ (3,094) $ 28,966
=========== =========== ===========
See accompanying notes to the unaudited proforma financial information.
</TABLE>
<PAGE>
Advanced Machine Vision Corporation
Unaudited Proforma Statement of Operations
For the Year Ended December 31, 1996
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
(in thousands, except per share amounts)
Proforma
--------------------------------
Historical Adjustments (B) Results
----------- --------------- -----------
<S> <C> <C> <C>
Net sales $ 29,938 $ 8,432 $ 21,506
Cost of sales 15,794 5,558 10,236
----------- ----------- -----------
Gross profit 14,144 2,874 11,270
----------- ----------- -----------
Operating expenses:
Selling and marketing 4,662 994 3,668
Research and development 4,038 721 3,317
General and administrative 3,549 798 2,751
Goodwill amortization 633 100 533
Charge for acquired in-process
technology 4,915 4,915 --
Charge for royalty expense 647 -- 647
----------- ----------- -----------
18,444 7,528 10,916
----------- ----------- -----------
Income (loss) from operations
before other income and expense (4,300) (4,654) 354
Other income and expense:
Investment and other income 190 21 169
Interest expense (1,150) (214) (936)
----------- ----------- -----------
Income (loss) from operations
before income taxes (5,260) (4,847) (413)
Provision for (benefit from) income taxes -- -- --
----------- ----------- -----------
Net income (loss) $ (5,260) $ (4,847) $ (413)
=========== =========== ===========
Earnings (loss) per share $ (0.46) $ (0.04)
=========== ===========
Weighted average shares outstanding 11,486 11,486
=========== ===========
See accompanying notes to the unaudited proforma financial information.
</TABLE>
<PAGE>
Advanced Machine Vision Corporation
Unaudited Proforma Statement of Operations
For the Quarter Ended March 31, 1997
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
(in thousands, except per share amounts)
Proforma
--------------------------------
Historical Adjustments (B) Results
----------- --------------- -----------
<S> <C> <C> <C>
Net sales $ 9,337 $ 2,210 $ 7,127
Cost of sales 4,730 1,403 3,327
----------- ----------- -----------
Gross profit 4,607 807 3,800
----------- ----------- -----------
Operating expenses:
Selling and marketing 1,253 226 1,027
Research and development 1,019 154 865
General and administrative 1,032 295 737
Goodwill amortization 199 26 173
----------- ----------- -----------
3,503 701 2,802
----------- ----------- -----------
Income (loss) from operations
before other income and expense 1,104 106 998
Other income and expense:
Investment and other income 57 2 55
Interest expense (360) (67) (293)
----------- ----------- -----------
Income (loss) from operations
before income taxes 801 41 760
Provision for (benefit from) income taxes 32 -- 32
----------- ----------- -----------
Net income (loss) $ 769 $ 41 $ 728
=========== =========== ===========
Earnings (loss) per share $ 0.06 $ 0.06
=========== ===========
Weighted average shares outstanding 13,086 13,086
=========== ===========
See accompanying notes to the unaudited proforma financial information.
</TABLE>
<PAGE>
Advanced Machine Vision Corporation
Notes to Unaudited Proforma Financial Information
- --------------------------------------------------------------------------------
(A) To record the sale of Pulsarr for $8.4 million, as summarized below:
Sales price $ 8,400,000
Less: estimated transaction costs (170,000)
Less: basis in stock of Pulsarr (3,220,000)
---------------
Gain on sale of Pulsarr $ 5,010,000
===============
Cash received from sale $ 8,400,000
Less: estimated transaction costs (170,000)
Less: payment of notes payable
issued in conjunction with purchase of Pulsarr (1,094,000)
Less: payment of intercompany note payable
to Pulsarr (131,000)
---------------
Net cash from sale of Pulsarr $ 7,005,000
===============
(B) To remove the operations of Pulsarr for the ten months ended December 31,
1996 and the quarter ended March 31, 1997.
<PAGE>
Exhibit Index
-------------
10 Share Purchase Agreement between Barco NV and ARC Netherlands BV dated
April 29, 1997.
SHARE PURCHASE AGREEMENT
entered into on this 29th day of April 1997
BY AND BETWEEN
BARCO N.V.
(hereinafter referred to as the "Buyer"); and
ARC NETHERLANDS B.V.
(hereinafter referred to as the "Seller")
<PAGE>
This share purchase agreement (hereinafter this or the "Agreement"), is entered
into in Amsterdam on this 29th day of April 1997 by and between:
BARCO N.V., a limited liability company incorporated and existing under the laws
of Belgium with its registered office at Kortrijk, Belgium (hereinafter referred
to as the "Buyer"); and
ARC NETHERLANDS B.V., a limited liability company incorporated and existing
under the laws of the Netherlands with its registered office at Amsterdam, the
Netherlands (hereinafter referred to as the "Seller").
(The Buyer and the Seller hereinafter jointly to be referred to as the "Parties"
and individually as a "Party.")
WHEREAS
A. The Seller is the legal and beneficial owner of the entire issued and
outstanding share capital, consisting of 40 (in words: forty) ordinary
shares with a nominal value of NLG 1,000.00 (in words: one thousand Dutch
guilders) each (hereinafter the "Shares"), of Pulsarr Holding B.V., a
limited liability company incorporated and existing under the laws of the
Netherlands with its principal place of business at Eindhoven (hereinafter
referred to as the "Company");
B. The Seller acquired under contract (the "Former Contract") on the 1st day of
March 1996, 80% of the Shares from Meijn Beheer B.V., a limited liability
company incorporated and existing under the laws of the Netherlands with its
registered office at Oostzaan (hereinafter referred to as the "Former Owner")
and acquired the remaining 20% (in words: twenty percent) of the Shares prior
to the date of this Agreement;
C. The Company is the unencumbered legal and beneficial owner of the entire
issued and outstanding share capital (hereinafter referred to as the
"Subsidiary Shares") of Pulsarr Vastgoed B.V., Pulsarr Industrial Research
B.V. and Pulsarr USA, Inc. (hereinafter individually referred to as a
"Subsidiary" and collectively the "Subsidiaries");
D. The Buyer desires to buy from the Seller and the Seller desires to sell to
the Buyer, the Shares, a subordinated note and certain rights relating
to certain secured accounts
NOW THEREFORE, for and in consideration of these premises and in reliance upon
the covenants, representations, warranties and indemnities set forth herein and
the execution and delivery of the Closing Documents (as defined hereinafter),
each Party hereto, intending to be legally bound, does hereby agree as follows:
1.1 SALE AND PURCHASE OF THE SHARES
-------------------------------
The Buyer agrees to buy and accept transfer from the Seller and the
Seller agrees to sell and transfer to the Buyer, the unencumbered legal
and beneficial title in the Shares. The Shares are sold with all rights
appertaining thereto, including the right to receive accrued dividends,
whether declared or not.
1.2 ASSIGNMENT OF SUBORDINATED NOTE, THE SECURED ACCOUNTS AND THE FORMER
OWNERS REPRESENTATIONS AND WARRANTIES
-------------------------------------
The Seller agrees to cede, assign and make over to the Buyer, at the
Closing, all the Seller's right, tital and interest in a subordinated
note (the "Subordinated Note") more fully described in Schedule 1.2 (i)
to this Agreement, which assignment the Buyer agrees to accept.
The Seller agrees to cede, assign and make over to the Buyer, at the
Closing, all the Seller's right, title and interest in the secured
accounts (the "Secured Accounts") more fully described in Schedule 1.2
(ii) to this Agreement, which assignment the Buyer agrees to accept.
The Seller agrees to cede, assign and make over to the Buyer, at the
Closing, all the Seller's right, title and interest in the Former
Owner's Representations and Warranties as defined in Section 7, which
assignment the Buyer agrees to accept.
2. PURCHASE PRICE AND PAYMENT
--------------------------
2.1 The purchase price for the Shares, the Subordinated Note (as defined in
Section 1.2 of this Agreement) and the Secured Accounts (as defined in
Section 1.2 of this Agreement) as well as the consideration for the
covenants and undertakings of the Seller set out in this Agreement,
amounts to US$ 8,400,000.00 (in words: eight million, four hundred
thousand United States Dollars) (hereinafter referred to as the
"Purchase Price").
2.2 The following amounts which are due by Seller to the Company will be
set off against the Purchase Price. The Buyer will procure that the
Company shall confirm receipt of payment of such amounts:
NLG 208.160 being an instalment and an amount of interest paid by the
Company to Mr. J. Scholt on behalf of the Seller in connection with the
sale of Mr. Scholt's shares of the Company to the Seller
NLG 17.860 for payment by the Company of the life insurance for 1996
Mr. J. Scholt
NLG 17.860 for payment by the Company of the life insurance for 1997
Mr. J. Scholt
NLG 10.000 for payment by the Company of the GAAP audit by Coopers &
Lybrand.
2.3 The Buyer agrees to transfer the Purchase Price (after having deducted
the amounts in clause 2.2) into the third party account number
21.33.19.241 at MeesPierson Bank in Amsterdam of the Notary (as defined
in Section 4.2 sub c of this Agreement) for transfer by the said Notary
to and on the instructions of the Seller after completion of the
actions at Closing (set out in Section 4 of this Agreement) and upon
the transfer of the Shares to the Buyer.
3. CONDITIONS PRECEDENT TO CLOSING
-------------------------------
The Buyer's obligation to purchase the Shares under the terms of this
Agreement is conditional on fulfilment by the Seller or waiver by the
Buyer, of each of the following conditions by or before the Closing:
3.1 The execution of a deed of assignment to the satisfaction of the Buyer
relating to the Subordinated Note;
3.2 The execution of a deed of assignment to the satisfaction of the Buyer
relating to the Secured Accounts and a notice on behalf of the Buyer
and the Seller to ABN AMRO Bank and the Former Owner confirming such
assignment being given;
3.3 The recording in writing to the satisfaction of the Buyer of the notice
to the Former Owner relating to the assignment to the Buyer of all of
the Seller's right, title and interest to and under the representations
and warranties provided to the Seller by the Former Owner in the Former
Contract;
3.4 Obtaining the written resignation of all by the members of the
supervisory board and Mr. Jan Scholt in his capacity as managing
director of the Company and the Seller, as well as the written
recording of the Company's acceptance of such resignations;
3.5 Obtaining written recordings from the Former Owner in evidence of the
removal of the pledge in its favour over 80% of the Shares;
3.6 Obtaining written acknowledgement from Mr. Scholt in evidence of the
removal of the pledge in his favour over the other 20% of the Shares;
3.7 The Seller having provided to Buyer written evidence that Mr. Scholt
has been released from any and all obligations and/or liabilities
pursuant to the Share Purchase Agreement in connection with 20% of the
Shares entered into by Mr. Scholt and the Seller.
3.8 Parties hereto having settled the following inter company accounts,
by means of a set-off between them:
- the amount owed by SRC Vision Inc. to the Company (estimated at
signing at NLG 248,146) with regard to spare parts;
- the amount of spare parts not yet paid by SRC Vision to the
Company (estimated at signing at US $ 39,832);
- the difference between the amount received by the Company and the
amount reimbursed to SRC Vision Inc. pursuant to the Bonduelle
agreement (estimated at signing at US $ 51,000);
- the amount on spare parts in the possession by SRC Vision Inc. to be
returned to the Company (estimated at signing at US $67,576.36).
3.9 The Buyer having received from the Seller the audited consolidated
accounts of the Company and its Subsidiaries over 1996 including the
unqualified approval from the Company's auditors, not significantly
different from the draft accounts which the Buyer received from the
Seller prior to execution of this Agreement attached as Schedule 3.9.
4. ASSIGNMENT BY THE BUYER, ACTIONS AT CLOSING AND CLOSING
-------------------------------------------------------
4.1 At any time the Buyer will have the right to assign and transfer all
its rights and obligations under this agreement to a Netherlands
limited liability Company belonging to the Buyer's group of companies.
The Seller hereby acknowledges and approves such a transfer and
assignment by the Buyer. In case of such a transfer and assignment,
Barco NV will guarantee the performance by the assignee of its
obligation to pay the Purchase Price provided for in this Agreement.
4.2 Parties will use their best efforts in order to accomplish that the
conditions precedent to Closing as set out in Section 3 of this
Agreement will be fulfilled no later than May 6th 1997. Upon the
fulfilment (or waiver) of such conditions precedent, the following
actions (hereinafter the "Closing"), will take place at the offices of
Loeff Claeys Verbeke in Amsterdam:
a. The Seller will provide the Buyer with such other instruments or
documents as may be necessary or appropriate to carry out their
common intention as set out in this Agreement.
b. The transfer of the Shares from the Seller to the Buyer by
Notarial Deed under the hand of the Notary (as defined in Section
4.2 sub c) at the offices of Loeff Claeys Verbeke, Amsterdam,
whereupon the Buyer will instruct the said Notary to transfer the
Purchase Price to and on the instructions of the Seller.
c. The Seller is aware that the Dutch civil law notary that will
effect the transfer of the Shares, being Mr. Gerbrand W. Ch.
Visser (hereinafter the "Notary") holds office at the offices of
Loeff Claeys Verbeke, Amsterdam, being the office of the outside
legal advisors of the Buyer. With regard to Sections 9 and 10 of
the Joint Practice Guidelines for Notaries and Attorneys
("Richtlijnen met betrekking tot vormen van samenwerking van
notarissen onderling en met advocaten") of the management of the
Royal Fraternity of Notaries ("Het bestuur van de Koninklijke
Notariele Broederschap"), the Seller expressly acknowledges and
agrees by signing this Agreement, that the Buyer, with regard to
this Agreement and all legal and other action that results from
this Agreement, as well as with regard to any disputes that may
arise from any such action or agreement, will be represented by
Loeff Claeys Verbeke.
5. SELLER'S COVENANTS TO CLOSING
-----------------------------
The Seller covenants to, from the date of this Agreement up to and
including the Closing, conduct the business of the Company in the
ordinary course and in any event not to incur any long term commitments
or any liability or expense in excess of NLG 50,000.00 (in words: fifty
thousand Dutch guilders) per event or transaction, without the prior
written approval of the Buyer.
6. PARTIES' COVENANTS
------------------
6.1 In connection with the transfer of the Shares parties have agreed that
they will procure that certain agency and distribution agreements
entered into by Pulsarr Industrial Research BV and SRC Vision Inc.,
listed by the Parties as soon as practically possible after the signing
of this Agreement, will be terminated by one of them as soon as
possible after closing such that no agent or distributor will be
representing both Pulsarr Industrial Research B.V. and affiliates on
one hand and SRC Vision Inc. on the other, after Closing and that in
each case the party terminating such agreement will bear all costs,
penalties or indemnifications due in connection with such termination.
6.2 Buyer will to the extent required by MeesPierson promptly after Closing
assume the obligations of ARC Capital towards MeesPierson under the net
worth statement dated July 18, 1996, attached hereto as Schedule 6.2.
6.3 The Buyer will indemnify ARC Capital for all obligations of ARC Capital
towards Mr. Ralph Habets as set forth in the consulting agreement dated
January 27, 1997, attached hereto as Schedule 7 which will arise as of
the date hereof.
7. REPRESENTATIONS AND WARRANTIES BY THE FORMER OWNER
--------------------------------------------------
The Parties intend to transfer all existing, contingent or other right,
title and interest (in the widest sense of the word) that the Seller
may have on the date of this Agreement based on the representations and
warranties and all related rights set out in the Former Contract
(attached to this Agreement as Schedule 1.2) and that were made by the
Former Owner to the Seller in the Former Contract (hereinafter referred
to as the "Former Owner's Representations and Warranties") to the Buyer
at the Closing and on the conditions and in the form of Schedule 1.2 to
this Agreement.
The Parties furthermore agree to take all action required to the extent
provided for and on the conditions of the laws on the Netherlands, to
vest all the said right, title and interest in such representations and
warranties in the Buyer.
For avoidance of doubt, the Parties record that no liability, existing,
contingent, conditional or otherwise (in the widest sense of the word)
will vest in Buyer as a result of the provisions of this Section 7.
8. ADDITIONAL REPRESENTATIONS AND WARRANTIES BY THE SELLER
-------------------------------------------------------
8.1 Transitional Provision
----------------------
Subject to the condition that ("onder opschortende voorwaarde dat") any
of the Former Owner's Representations and Warranties does not inure to
the benefit of the Buyer for the reason that such representations
and/or warranties is for any reason not ceded, assigned and made over
to the Buyer in accordance with the terms of Schedule 1.2, the Seller
shall have the obligation (i) to file at the sole request of the Buyer
any claims under the Purchase Agreement entered into by the Seller and
Meijn Beheer BV dated March 1, 1996, (ii) to take all other action in
connection therewith deemed necessary by Buyer, (iii) to grant to Buyer
an irrevocable Power of Attorney to undertake any action deemed
necessary by the Buyer in connection therewith and (iv) to pay all the
proceeds from such claims without any deductions to Buyer.
As security for the due performance by Seller pursuant to this Clause,
Seller will at the closing vest a first right of pledge in favour of
the Buyer in all its rights under the Former Contract including its
rights under the Secured Accounts.
The deed of pledge and the Power of Attorney shall be executed at the
Closing.
Additional Representations and Warranties
-----------------------------------------
In addition, the Seller represents and warrants to the Buyer that the
following statements are, whether read individually or collectively,
true, complete and accurate on the date of signing of this Agreement.
8.2 Authority
---------
The Seller is a limited liability company duly organized and validly
existing under the laws of the Netherlands. The Seller has not been
declared bankrupt ("failliet") and no action or request is pending to
declare the Seller bankrupt. The Seller has not filed nor been granted
a moratorium of payment ("surseance van betaling") and no similar
action under legislation other than the Netherlands has been taken. The
Seller has full right, power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to carry out the
transactions contemplated hereby. All corporate and other acts or
proceedings required to be taken by the Seller to authorize the
execution, delivery and performance of this Agreement and all
transactions contemplated hereby have been duly and properly taken.
8.3 Validity
--------
This Agreement has been, and the documents to be delivered at Closing
will be, duly executed and delivered and constitute lawful, valid and
legally binding obligations of the Seller, enforceable in accordance
with their respective terms. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
do not violate or conflict with any provision of, or constitute a
default under:
a) the deed of incorporation and articles of association of the Seller;
b) any note, bond, indenture, contract, agreement, permit, license or
other instrument or agreement to which the Seller, the Company or
any of the Subsidiaries is a party or by which any of their
respective assets is bound;
c) any order, writ, injunction, decree or judgment of any court or
governmental agency; or
d) any law, rule or regulation applicable to the Seller, the Company or
any of the Subsidiaries.
8.4 No Adverse Consequences
-----------------------
The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby will not result in the creation of
any lien, charge or encumbrance of any kind, or the termination or
acceleration of any indebtedness or other obligation of the Seller, the
Company or any of the Subsidiaries. No approval, authorization,
registration, consent, order or other action of or filing with any
person, including any court, administrative agency or other
governmental authority, is required for the execution and delivery by
the Seller of this Agreement or the consummation by the Seller of the
transactions contemplated hereby except for the consents of MeesPierson
and of the government authority in charge of the TOK Subsidy.
8.5 Title
-----
At the Closing, the Seller will have full legal and beneficial
ownership of the Shares and the Company has full legal and beneficial
ownership of the Subsidiary Shares (constituting 100% of the
outstanding share capital). At the Closing, the Shares and the
Subsidiary Shares will be owned free and clear of all claims, security
interests, liens, pledges, charges, escrows, options, proxies, rights
of first refusal, preemptive rights, mortgages, hypothecations, prior
assignments, title retention agreements, indentures, security
agreements or any other limitation, encumbrance or restriction of any
kind.
The Seller has the absolute right to sell and transfer the Shares to
the Buyer in accordance with the terms of this Agreement and without
the cooperation, approval or authorization of any third party or such
cooperation, approval or authorization have been rendered.
8.6 No Intercompany Loans, No Security Rights or Other Third Party
Interests
-----------------------------------------------------------------------
8.6.1 The Company has not guaranteed, provided security or given indemnity
for any obligation of third parties (not being the Subsidiaries),
including but not limited to obligations of the Seller or any company
affiliated to the Seller, all this in the widest sense of the word.
8.6.2 Except for the two building mortgages granted to VSB Bank and the
security provided to MeesPierson in connection with line of credit,
there is no encumbrance of any asset of the Company for, in support of
or related to any purpose outside the ordinary course of the business
of or not at arms length with the Company or related to the finance of
any company(ies) affiliated to the Company.
8.6.3 Since the 1st day of January 1997, no management fee, interest and
other related expense has been incurred by the Company and/or its
Subsidiaries towards members of the Seller's group of Companies except
among the Pulsarr Group of Companies and except for supply of goods and
services between companies belonging to Seller's Group of Companies.
8.6.4 The Company and/or its Subsidiaries are not and have never been part of
a Fiscal Unity with the Seller.
8.7.1 To the best of Seller's knowledge there is no material fact or
circumstance not communicated to the Buyer (in this Agreement or
otherwise) which may be reasonably assumed to may have had a material
adverse effect on the Buyer's willingness to enter in this Agreement.
8.7.2 Seller is not aware of any material fact which could give the Buyer the
right to make a claim under the representations and warranties and no
fact has arisen which would make any representation or warranty not
true, complete and accurate at the date of this Agreement.
8.7.3 During the period between 1 January 1997 and the Closing Date no assets
of the Company and/or its Subsidiaries have been disposed of other than
in the ordinary course of business and none of the Company and its
Subsidiaries has become subject to any commitment other than in the
ordinary course of business. Since 1 January 1997 there has been no
material adverse change in the business position, the financial
position or in the equity position of the Company and its Subsidiaries.
8.7.4 Since 1 January 1997 the Company and its Subsidiaries have not paid or
committed to pay any amount to any members of the Management Board or
Supervisory Board other than Jan Scholt or in any other way increased
or granted any options to purchase shares of the Company to such board
members or entered into any commitment in that respect.
8.7.5 After 1 January 1997 no resolution has been made and no action has been
taken to distribute dividends, to repay capital or to make any other
distribution of reserves or capital, except as shown in the Annual
Accounts. Neither the Company nor its Subsidiaries has issued any
profit sharing bonds or otherwise attributed rights to third parties to
share in past, present or future income or profits, reserves or
liquidation surpluses of the Company and its Subsidiaries.
8.7.6 To the best of Seller's knowledge, as of 1 January 1997 no transactions
have been entered into between the Company or its Subsidiaries on one
hand and any other company belonging to the Seller's Group of Company
which were not at an arm's length basis.
8.7.7 No rights have been granted by the Company providing for the issuance
of shares by it.
8.7.8 No amounts have been retained from the Secured Accounts by or on behalf
of Seller.
8.8 Except as explicitly provided for in this Section 8 of this Agreement
the Seller does not give any Representations or Warranties to the Buyer
in connection with the Company and the Subsidiaries.
9. ANCILLARY PROVISIONS
--------------------
Any investigation carried out by or on behalf of the Buyer or any
documentation furnished by the Seller or its representatives or
advisers to the Buyer or to its representatives or advisers, shall not
relieve the Seller of any of its obligations under any of the
representations and warranties.
For avoidance of doubt the Parties record that no schedule referred to
in the Purchase Agreement between the Seller and Meijn Beheer BV dated
March 1, 1996 (Schedule 1.2 to this Agreement) nor the content thereof,
unless explicitly provided otherwise herein, will be deemed a
disclosure to any representation and/or warranty made by the Seller in
this Agreement.
10. REPRESENTATIONS AND WARRANTIES OF THE BUYER
-------------------------------------------
The Buyer represents and warrants that the statements set out hereafter
are true, complete and accurate on the date of signing of this
Agreement.
a) Authority. The Buyer has full right, power and authority, without
the consent of any other person, to execute and deliver this
Agreement and to carry out the transactions contemplated hereby.
All corporate and other acts or proceedings required to be taken
by Buyer to authorize the execution, delivery and performance of
this Agreement and all transactions contemplated hereby have been
duly and properly taken.
b) Validity. This Agreement has been, and the documents to be
delivered at Closing will be, duly executed and delivered by the
Buyer and constitute lawful, valid and legally binding
obligations of the Buyer, enforceable in accordance with their
respective terms. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby will
not result in the creation of any lien, charge or encumbrance or
the acceleration of any indebtedness or other obligation of the
Buyer and are not prohibited by, do not violate or conflict with
any provision of, and do not result in a default under or a
breach of:
a) the articles of incorporation (or by-laws) of the Buyer;
b) any contract, agreement, permit, license or other instrument
to which the Buyer is a party or by which it is bound;
c) any order, writ, injunction, decree or judgment of any court
or governmental agency; or
d) any law, rule or regulation applicable to the Buyer.
No approval, authorization, consent or other order or action of
or filing with any court, administrative agency or other
governmental authority is required for the execution and delivery
by the Buyer of this Agreement or the consummation by the Buyer
of the transactions contemplated hereby.
11. BREACH AND INDEMNITY AND SURVIVAL
---------------------------------
11.1 The Seller hereby indemnifies the Buyer and shall hold the Buyer
harmless, from and against:
(a) all damages, liabilities (including, without limitation,
liabilities for Tax (meaning Corporate Tax (including WIR
disinvestments payments), income tax, social security premium,
turnover tax, import duties and excises, capital tax, real
property transfer tax, dividend tax, local property tax and other
local rates and payments, environmental taxes), losses (including,
without limitation, any consequential loss or damage and any loss
of profit or punitive damages, fines, penalties and interest),
costs (including, without limitation, all reasonable fees of
attorneys, accountants and other professional advisers employed by
the Buyer) or deficiencies, incurred by the Buyer or the Company
as a result of a breach of the representations and warranties made
by the Seller to and in favour of the Buyer; and
(b) all damages, liabilities (including, without limitation,
liabilities for Tax, losses (including, without limitation, any
consequential loss or damage and any loss of profit or punitive
damages, fines, penalties and interest), costs (including, without
limitation, all reasonable fees of attorneys, accountants and
other professional advisers employed by the Buyer) or
deficiencies, incurred by the Buyer or the Company as a result of
a breach of any covenant or other obligation of the Seller under
this Agreement.
(Any claim brought under (a) or (b) above or brought upon an
alleged breach of any representation, warranty, indemnity or
covenant in this Agreement, hereinafter referred to as a "Claim").
11.2 Any Claim made pursuant to (a) above shall be deemed to be a reduction
of the Purchase Price.
11.3 Seller's liability as described in this Agreement shall at all times be
limited to the Purchase Price provided for in Clause 2 hereof.
11.4 All representations, warranties, covenants and agreements made by the
Seller and contained in this Agreement or in any document delivered
pursuant hereto shall be deemed to be material and to have been relied
upon by the Buyer and shall survive the Closing and shall be fully
effective and enforceable for a period of three (3) years following the
date of this Agreement (except for a Claim made in respect of Tax,
which shall be fully effective and enforceable for a period up to 6
months after the applicable statute of limitations period provided for
in the relevant Tax law has expired).
Any Claim asserted in writing before the third anniversary of the date
of this Agreement or other applicable survival period shall survive
until resolved or determined pursuant to arbitration as provided for in
this Agreement.
12. THIRD PARTY CLAIM OR THE BUYER'S CLAIM
--------------------------------------
In addition to the provisions of Section 11 relating to Tax Claims, the
Buyer shall give written notice (the "Notice") to the Seller of any
claim for indemnification under this Agreement (a "Claim," which term
may include more than one claim).
13. BUYER'S CLAIM
-------------
With respect to a Buyer's Claim, the Seller shall have 30 days (from
the date it becomes aware of such Claim) to make such investigation of
the Claim as it considers necessary or desirable. If the Seller and the
Buyer agree at or prior to such thirty (30) day period (or any mutually
agreed upon extension thereof) to the validity and amount of such
Claim, the Seller shall immediately pay to the Buyer the full agreed
upon amount of the Claim.
If the Buyer and the Seller do not agree within such period (or any
mutually agreed extension thereof), the dispute shall be submitted to
arbitration in accordance with the provision of Section 29 of this
Agreement.
14. THIRD PARTY CLAIM
-----------------
14.1 The Buyer shall not settle any Third Party Claim without the prior
written consent of the Seller (such consent not to be unreasonably
withheld), unless legal action shall have been instituted by that third
party and the Seller shall not have taken control of such suit within
thirty (30) days (or, in the event that injunctive relief is being
sought by such third party within forty-eight (48) hours) after the
Notice.
With respect to a Third Party Claim, the Seller may, at its sole cost
and expense, upon written notice to the Buyer within the time limits
set forth in the preceding sentence, assume the defense of any such
claim or legal proceeding after payment in full to Buyer of the Claim
asserted therein.
If the Seller assumes the defense of any such claim or legal
proceeding, the Seller shall select counsel (which counsel shall be
reasonably acceptable to the Buyer) to conduct the defense in such
claims and legal proceedings at its sole cost and expense, and shall
take all steps necessary in the defense or settlement thereof.
The Seller shall not consent to a settlement of, or the entry of any
judgment arising from, any Third Party Claim without the prior written
consent of the Buyer. The Buyer shall at all times be entitled to
participate in the negotiation, settlement or defense of any Third
Party Claim with its own counsel.
14.2 The Buyer and the Seller shall cooperate fully with each other with
respect to any Third Party Claim and shall keep each other advised with
respect thereto.
15. INTELLECTUAL PROPERTY
---------------------
15.1 For the purposes of this Section 15, "Intellectual Property Rights"
includes (but is not limited to) all patents and specific applications
thereof, registered designs, tradenames, trademarks and service marks
(whether registered or not), copyright, neighbouring rights, design
rights and all similar rights, including those subsisting (in any part
of the world) in production know-how and technology, trade secrets,
formula, methods, processes, inventions, logos, designs, drawings,
performances, computer programmes, confidential information, business
names, goodwill and the style and presentation of goods and services
and in applications for protection thereof.
The Parties furthermore agree that the continued conduct after the
Closing of all then current activities by each of the Parties or
companies affiliated to each of the Parties, will not be deemed to
infringe the Intellectual Property Rights of the other Party or an
affiliated company of the other Party and that neither Party owes or is
obliged to pay to the other Party any compensation for the use of any
Intellectual Property Rights.
15.2 Parties will procure that Pulsarr Industrial Research B.V. and SRC
Vision Inc., and their affiliates will immediately after Closing
redeliver to each other any technical documentation (such as designs,
drawings, manuals etc.) received from the other or its affiliates for
the performance of its current activities while each of them will be
entitled to keep copies of such documentation to the extent necessary
for the provision of services by it and the performance by it under
existing contracts, if any.
16. NON-SOLICITATION
----------------
Until the first anniversary of this Agreement, the Seller agrees unless
in specific cases otherwise agreed between parties not to, and will
procure that neither SRC Vision, Inc. nor Ventek, Inc. will, solicit
employees or former employees ("former" means in this clause 16
employees that were employed with or worked (on whatever basis), for
the relevant company within a period of 12 months prior to Closing) of
the Buyer, the Company or any of the Subsidiaries, nor to engage, hire,
employ or in any other way retain or use the services of such employees
nor to incite those employees to terminate their existing employment
agreements or relationships. The undertaking contained in this
paragraph will not apply to Herbie Klunder, Marc van den Bosch and
Antoine Dofijn.
Until the first anniversary of this Agreement, the Buyer agrees not to,
and will procure that neither the Company nor any of the Subsidiaries
will, solicit employees or former employees, of the Seller, SRC Vision,
Inc. or Ventek, Inc. employed within a period of 12 months prior to
Closing, nor to engage, hire, employ or in any other way retain or use
the services of such employees nor to incite those employees to
terminate their existing employment agreements or relationships.
17. MISCELLANEOUS
-------------
17.1 Parties covenant that the employees of the Seller's Group of Companies
currently resident at the Pulsarr Group of Companies and the employees
of the Pulsarr Group of Companies currently resident at Seller's Group
of Companies will within one month after the Closing terminate such
residence and the respective employers will cause these employees
resident at each other's location to vacate the other's premises.
17.2 Within one month after the Closing the Buyer will procure that
insurance policies will be entered into with respect to the Company and
its Subsidiaries. Upon such policies becoming effective Seller will
procure the termination of the existing policies thus replaced. The
life insurance policy entered into for Mr. Scholt will be terminated as
soon as possible after closing by the Seller (copy of termination
notice to be submitted to Buyer), and Seller shall be entitled to the
refund of the remainder of the 1997 premium in connection with the
period after Closing.
17.3 For purchase orders accepted after the Closing by the Company or its
Subsidiaries Seller will not receive any compensation even if quotes
for such orders have been given prior to Closing.
For purchase orders accepted after the Closing by Seller or any of its
affiliates the Company or its Subsidiaries will not receive any
compensation even if quotes for such orders have been given prior to
Closing.
17.4 The amounts to be paid pursuant to this Agreement will be made at the
US Dollar/Dutch Guilder exchange rate as quoted by ABN AMRO in
Amsterdam at the close of business of May 2, 1997.
17.5 Buyer will not be deemed to have waived any of its rights pursuant to
Netherlands law by executing this Agreement unless otherwise expressed
herein.
18. AMENDMENT AND WAIVER
--------------------
No amendment, waiver or consent with respect to any provision of this
Agreement shall in any event be effective, unless the same shall be in
writing and signed by the Parties hereto, and then such amendment,
waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
19. NOTICES
-------
All notices, requests, demands and other communications hereunder shall
be in writing and shall be delivered in person or sent by registered or
certified mail or be telefaxed as follows:
If to the Seller:
-----------------
ARC Netherlands B.V.
c/o ARC Capital
2067 Commerce Drive
Medford, OR 97504
Attn. Mr. Alan Steel
Telecopier: (1) 541-779-6838
With a copy to:
---------------
Caron & Stevens/Baker & McKenzie
Attn. Mr. L. P. L. Habets
Leidseplein 29
Telecopier: (31)-20-626 7949
If to the Buyer:
----------------
Barco N.V.
President Kennedypark 35
8500 . . KORTRIJK
Attn. Mr. F. Kremer
Telecopier: (32) 56-262 262
With a copy to:
---------------
Loeff Claeys Verbeke
Attn. Mr. F. L. Leijdesdorff
Apollolaan 15
1077 AB Amsterdam
Telecopier: (31)-20-6718 775
Any Party may change its address for receiving notice by written notice
given to the other.
20. EXPENSES
--------
Except as otherwise expressly provided herein, each Party to this
Agreement shall pay its own costs and expenses in connection with the
transactions contemplated hereby.
21. COUNTERPARTS
------------
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
22. SUCCESSORS AND ASSIGNS
----------------------
The Buyer shall be entitled to assign its rights and duties under this
Agreement without the consent of the Seller. The Seller shall only
assign its duties hereunder with the written consent of the Buyer.
23. ENTIRE TRANSACTION
------------------
This Agreement and the documents referred to herein contain the entire
understanding among the Parties with respect to the transactions
contemplated hereby and supersedes all other agreements, understandings
and undertakings among the Parties on the subject matter hereof.
24. APPLICABLE LAW
--------------
This Agreement shall be governed by and construed in accordance with
the laws of the Netherlands, excluding any conflicts of law rules
requiring the application of the substantive law of any other
jurisdiction.
25. OTHER RULES OF CONSTRUCTION
---------------------------
References in this Agreement to sections and schedules are to sections
of and schedules to, this Agreement unless otherwise indicated. Words
in the singular include the Plural and in the plural include the
singular. The word "or" is not exclusive. The word "including" shall
mean including, without limitation. The section and other headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
26. ANNOUNCEMENTS
-------------
No announcement of this Agreement or any transaction contemplated
hereby shall be made by any Party prior to the Closing without the
written approval of the other Parties hereto (which approval shall not
be unreasonably withheld), except as required by law or the regulations
of any securities exchange. Each Party shall use its best effort to
maintain the confidentiality of the terms of the purchase and maintain
the confidentiality of the terms of the purchase and sale transaction
contemplated hereby, except as required by law or as necessary to
protect the interest of any Party hereunder.
27. PARTIAL INVALIDITY
------------------
In the event that any provision of this Agreement shall be held invalid
or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision
hereof.
28. NO RESCISSION
-------------
The Parties waive their right to demand rescission ("ontbinding") of
this Agreement as contemplated by section 6:165 of the Dutch Civil
Code.
29. ARBITRATION
-----------
Any dispute arising out of or relating to this Agreement shall be
referred to minitrial in accordance with the Minitrial Rules of the
Netherlands Arbitration Institute ("Nederlandse Arbitrage Instituut").
In the event such dispute(s) are not settled in accordance with such
rules, it (they) shall at the request of any Party be referred to and
finally settled by arbitration under the Arbitration Rules (the
"Rules") of the Netherlands Arbitration Institute. The arbitral
procedure shall be conducted in Amsterdam and in the English language.
The Arbitral tribune shall be composed of three (3) arbitrators to be
appointed in accordance with the Rules.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement in
three-fold, in Amsterdam, on the date set out on page one.
/s/ Antoon van Petegem
- -------------------------------------
For : The Buyer
By : Antoon van Petegem
Its : Vice President CFO and Controller
/s/ Alan Steel
- -------------------------------------
For : The Seller
By : Alan Steel
Its : Managing Director
By executing this Agreement ARC Capital accepts joint and several liability
("hoofdelijke aansprakelijkheid") for all liabilities of Seller towards Buyer
under this Agreement.
/s/ Alan Steel
- -------------------------------------
For : ARC Capital
By : Alan Steel
Its : Vice President, Finance and CFO
