UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 3, 2014
The ExOne Company
(Exact name of registrant as specified in its charter)
Delaware | 001-35806 | 46-1684608 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
127 Industry Boulevard North Huntingdon, Pennsylvania |
15642 | |
(Address of principal executive offices) | (Zip Code) |
Registrants telephone number, including area code: (724) 863-9663
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry Into Material Definitive Agreement.
Item 2.01 Completion of Acquisition or Disposition of Assets.
On March 3, 2014, The ExOne Company, a Delaware corporation (the Company), through its wholly-owned subsidiary ExOne Americas LLC, a Delaware limited liability company (ExOne Americas), entered into an Asset Purchase Agreement by and among ExOne Americas, Machin-A-Mation Corporation, Metal Links, LLC and Mr. William R. Dega (the Machin-A-Mation Asset Purchase Agreement) to acquire (i) substantially all the assets of Machin-A-Mation Corporation (Machin-A-Mation), a specialty machine shop located in Chesterfield, Michigan, and (ii) the real property on which Machin-A-Mations business is located from Metal Links, LLC (Metal Links), a Michigan limited liability company, for an aggregate purchase price of approximately $5.0 million (the Machin-A-Mation Acquisition). The closing took place simultaneously upon execution of the Machin-A-Mation Asset Purchase Agreement on March 3, 2014. Machin-A-Mations business will remain in its current Chesterfield, Michigan location, complementing the Companys nearby production service center (PSC) in Troy, Michigan, where the Company focuses on advanced 3D printed cores and molds for the aerospace and shipbuilding industries.
On March 6, 2014, ExOne GmbH, a wholly-owned subsidiary of the Company acquired all of the shares of MWT - Gesellschaft für Industrielle Mikrowellentechnik mbH (MWT), a pioneer in industrial-grade microwaves based in Elz, Germany, for approximately $4.8 million pursuant to the terms of a Purchase and Assignment Contract between Reinhard Schulze and ExOne GmbH (the MWT Share Purchase Agreement). The closing took place simultaneously upon execution of the agreement on March 6, 2014. MWTs microwave operation will be operationally integrated with the Companys Augsburg, Germany manufacturing operations.
To fund the Machin-A-Mation and the MWT Acquisitions, the Company used a portion of the net proceeds from its secondary offering of common stock that was completed on September 13, 2013.
The descriptions set forth above regarding the Machin-A-Mation Asset Purchase Agreement and the MWT Share Purchase Agreement are not complete and are subject to and qualified in their entirety by reference to the complete text of the Machin-A-Mation Asset Purchase Agreement and the MWT Share Purchase Agreement, copies of which are filed herewith as Exhibit 2.1 and Exhibit 2.2, respectively, and the terms of which are incorporated herein by reference.
The representations, warranties and covenants contained in the Machin-A-Mation Asset Purchase Agreement and the MWT Share Purchase Agreement are made solely for purposes of those agreements and are made as of specific dates; are solely for the benefit of the parties; may be subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms of the Machin-A-Mation Asset Purchase Agreement and the MWT Share Purchase Agreement, including being qualified by confidential disclosures made for the purpose of allocating contractual risk between the parties instead of establishing matters as facts; and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors or security holders. Investors and security holders should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or condition of The ExOne Company or any of its subsidiaries or affiliates or the assets sold. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Machin-A-Mation Asset Purchase Agreement and the MWT Share Purchase Agreement, which subsequent information may or may not be fully reflected in public disclosures.
Item 7.01 Regulation FD Disclosure.
On March 6, 2014, the Company issued a press release announcing the acquisition of MAM and MWT. A copy of the press release is attached hereto as Exhibit 99.1.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit |
Description |
|
2.1 | Asset Purchase Agreement, dated as of March 3, 2014, by and between ExOne Americas LLC, Machin-A-Mation Corporation, Metal Links, LLC and William Dega. (Certain schedules and other attachments to this exhibit were omitted. We agree to furnish supplementally a copy of any omitted schedules or attachments to the Commission upon request.) | |
2.2 | Purchase and Assignment Contract, dated March 6, 2014, between Reinhard Schulze and ExOne GmbH. (Certain schedules and other attachments to this exhibit were omitted. We agree to furnish supplementally a copy of any omitted schedules or attachments to the Commission upon request.) | |
99.1 | Press Release of The ExOne Company, dated March 6, 2014. |
The information in this Current Report on Form 8-K related to Item 7.01, including Exhibit 99.1 furnished herewith, is being furnished to the SEC pursuant to Item 7.01 of Form 8-K and is not deemed to be filed with the SEC for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of Section 18. In addition, such information is not to be incorporated by reference into any registration statement of The ExOne Company or other filings made pursuant to the Exchange Act or the Securities Act, unless specifically identified as being incorporated therein by reference.
The furnishing of particular information in this Current Report, including Exhibit 99.1 furnished herewith, pursuant to Item 7.01 of Form 8-K is not intended to, and does not, constitute a determination or admission by The ExOne Company, as to the materiality or completeness of any such information that is required to be disclosed solely by Regulation FD of the Exchange Act.
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.
THE EXONE COMPANY | ||
By: |
/s/ Brian Smith |
|
Brian Smith | ||
Chief Financial Officer |
Dated: March 7, 2014
Exhibit Index
Number |
Exhibit |
|
2.1 | Asset Purchase Agreement, dated as of March 3, 2014, by and between ExOne Americas LLC, Machin-A-Mation Corporation, Metal Links, LLC and William Dega. | |
2.2 | Purchase and Assignment Contract, dated March 6, 2014, between Reinhard Schulze and ExOne GmbH. | |
99.1 | Press Release of The ExOne Company, dated March 6, 2014. |
Exhibit 2.1
Execution Version
ASSET PURCHASE AGREEMENT
By and Among
EXONE AMERICAS LLC,
MACHIN-A-MATION CORPORATION,
METAL LINKS, LLC,
MR. WILLIAM R. DEGA
March 3, 2014
TABLE OF CONTENTS
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EXHBIT B SAMPLE EARNOUT PAYMENTS CALCULATION |
EXHIBIT C DEED |
EXHIBIT D EMPLOYMENT AGREEMENT |
DISCLOSURE SCHEDULES |
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made as of this 3 rd day of March, 2014, by and among EXONE AMERICAS LLC, a Delaware limited liability company (Buyer), MACHIN-A-MATION CORPORATION, a Michigan corporation (Company), METAL LINKS, LLC, a Michigan limited liability company (Metal Links), and MR. WILLIAM R. DEGA (Owner; together with Company, Seller). Each of the Buyer, Company, Metal Links and Owner may herein be referred to as a Party or collectively as the Parties.
WITNESSETH:
WHEREAS, Seller is engaged in the business of operating a machining and finishing shop located at 56568 North Bay Drive, Chesterfield, Michigan (hereinafter referred to as the Business);
WHEREAS, Metal Links owns the real property located at 56568 North Bay Drive, Chesterfield, Michigan 48051 and any and all buildings, facilities, fixtures and other improvements now or hereafter located on such real property (the Facility);
WHEREAS, Seller and Metal Links desire to sell, and Buyer desires to purchase, substantially all of the Assets of Seller (as defined in Section 3 below) and the Facility used in connection with the Business as described herein and to assume only certain specific liabilities related to the Business as specified herein.
NOW THEREFORE, for and in consideration of the premises and the mutual covenants and agreements set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. | SALE AND PURCHASE OF THE ASSETS AND THE FACILITY |
Seller hereby covenants and agrees to sell, assign, transfer and deliver to Buyer as of the date hereof, and Buyer covenants and agrees to purchase and accept from Seller the Assets, as defined in Section 3 hereof, in the manner and for the consideration set forth in this Agreement free and clear of any Encumbrances (as defined in Section 6.9).
Metal Links hereby covenants and agrees to sell, assign, transfer and deliver to Buyer as of the date hereof, and Buyer covenants and agrees to purchase and accept from Metal Links, the Facility in the manner and for the consideration set forth in this Agreement free and clear of any Encumbrances (defined in Section 6) other than Permitted Encumbrances (defined in Section 6.9).
2. | CLOSING AND CLOSING DATE |
The closing of the transactions contemplated hereby (the Closing) shall take place simultaneously with the execution and delivery of this Agreement. The date of the Closing is hereinafter referred to as the Closing Date. The Closing shall be effective as of 11:59 p.m. on the Closing Date.
3. | TRANSFER OF THE ASSETS |
Seller and Metal Links, as applicable, shall transfer, at the Closing on the Closing Date, by deeds, bills of sale and other appropriate documents reasonably satisfactory to Buyer, free and clear of any Encumbrance (as defined in Section 6.9) other than the Permitted Encumbrances (as defined in Section 6.9), all properties, interests in properties and assets owned by Company and Metal Links related to the Business and any properties or assets owned or used by Owner related to the Business specifically described below (herein collectively referred to as the Assets), including without limitation:
| The Facility; |
| Any pre-paid taxes with respect to the ownership and operation of the Facility, which are described on Schedule 3; |
| All accounts or notes receivable relating to the Business, and any security, claim, remedy or other right related to any of the foregoing (Accounts Receivable); |
| All prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits, charges, sums and fees (including any such item relating to the payment of taxes) relating to the Business; |
| All rights under warranties, indemnities and all similar rights against third parties to the extent related to any Asset; |
| All insurance benefits, including rights and proceeds, arising from or relating to the Business, the Assets or the Assumed Liabilities; |
| All goodwill and the going concern value of the Business; |
| All tools, dies, machinery and other equipment used by the Business; |
| All inventories relating to the Business, wherever located, including all finished goods, work in process, raw materials, spare parts, obsolete items and all other materials and supplies to be used or consumed by the Business; |
| All right, title and interest in, to and under any contract, purchase order, license or other agreement listed on Schedule 3(a) to this Agreement (the Assumed Contracts); |
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| All intellectual property relating to the Business, including but not limited to names (including the name Machin-A-Mation), websites, logos, trademarks, patents, copyrights and licenses; |
| All accreditations, permits or licenses (to the extent such items are transferable) relating to the Business; |
| All supplies used in the operation of the Business; |
| All personal property, including but not limited to furniture and furnishings, used in the Business; |
| All books and records relating to the Business, financial records, employment files of active employees of the Business, and all supporting documents (such as employee licenses and certifications), data files requested by Buyer in a computer readable format insofar as is possible; |
| All customer lists and other records, files, data, reports, lists, ledgers, market studies, books and records (including such records as are contained in any computer media) relating to the Business; |
| All protocols, employee manuals, job descriptions, and all related information relating to the Business; |
| All claims against third parties relating to the Business or the Assets, whether choate or inchoate, known or unknown, contingent or non-contingent; |
| The existing telephone numbers, e-mail addresses for active employees of the Business who are employed by Buyer at Closing; and |
| All other intangible property relating to the Business. |
A specific list of the Assets is attached hereto as Schedule 3(b) ; provided, however, that the failure to list an item on Schedule 3(b) shall not disqualify such item as an Asset, as it is the intent of the parties that Buyer is acquiring all of Sellers assets relating to the Business with the sole exception of those items specifically listed on Schedule 3(c) hereto (the Excluded Assets), which shall be excluded from the Assets and remain the property of Seller.
Notwithstanding the foregoing, the transfer of the Assets pursuant to this Agreement shall not include the assumption of any Liability (defined in Section 4(a)) related to the Assets of the Business unless Buyer expressly assumes that Liability pursuant to Section 4 hereof.
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4. | ASSUMPTION OF LIABILITIES |
(a) In connection with the sale of the Assets to Buyer, Buyer will assume only the following Liabilities (as defined below) of Seller and Metal Links: (i) the trade accounts payable by Seller to third parties listed on Schedule 4(a) by person or entity payable, amount and due date; (ii) all Liabilities in respect of the Assumed Contracts but only to the extent that such Liabilities thereunder are required to be performed after the Closing Date, were incurred in the ordinary course of business and do not relate to any failure to perform, improper performance, warranty or other breach, default or violation by Seller on or prior to the Closing; (iii) those other Liabilities of Seller set forth on Schedule 4(a) (collectively, the Assumed Liabilities) and (iv) the Permitted Encumbrances. Liabilities means liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured or otherwise.
(b) Except for the Assumed Liabilities, Buyer will not assume, and will not be liable for, any of Sellers or Metal Links other Liabilities, debts, taxes, obligations, contracts or commitments of any nature or kind whatsoever, whether existing as of the Closing or arising thereafter, known or unknown, contingent or otherwise, including (i) any Liability of the Business or the Facility arising out of or relating to facts or circumstances that occurred or existing on or prior to the Closing, (ii) any payroll Liabilities, pension Liabilities, health, welfare or retirement Liabilities or any earned, accrued, used or unused personal leave, personal time off, sick or vacation leave, employment contracts, bonuses or other payouts for the Sellers employees, (iii) other obligations of Seller or otherwise related to the Business, including but not limited to any accrued rent or other liabilities of the Company to Owner Metal Links under any lease agreement or arrangement between the Company and Owner, (iv) any Liability of Metal Links with respect to the ownership or operation of the Facility prior to the Closing or (iv) any notes payable by the Company to Owner with respect to the prior operations of the Business (collectively, the Excluded Liabilities). Seller and Metal Links covenant and agree to perform, satisfy or otherwise discharge any Excluded Liability promptly, and Seller and Metal Links agree that satisfaction and performance of any and all Excluded Liabilities will be the sole obligation and responsibility of Seller and Metal Links, and Buyer shall have no liability for any Excluded Liability under any circumstance.
5. | PURCHASE PRICE |
(a) Buyer shall pay to the Company as total consideration for the Assets (excluding the Facility) and the transactions contemplated hereby the sum of Three Million Two Hundred Ninety Thousand Dollars ($3,290,000) (the Asset Purchase Price), plus the Earnout Payments, as applicable, as set forth in Section 5(d) below. Buyer shall pay to Metal Links as consideration for the Facility the sum of One Million Three Hundred Thousand Dollars ($1,300,000) (the Facility Purchase Price and collectively with the Asset Purchase Price, the Purchase Price).
(b) At the Closing, Buyer will deliver to JP Morgan Chase (the Escrow Agent) an amount equal to Two Hundred Fifty Thousand Dollars ($250,000) (the Escrow Amount) to
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provide a source for the satisfaction of the indemnification claims of Buyer pursuant to Section 14 of this Agreement with such amount to be held and disbursed by Escrow Agent pursuant to the terms of that certain Escrow Agreement by and among Escrow Agent, Buyer and the Company, in substantially the form attached hereto as Exhibit A . The Escrow Amount will be used as a source to satisfy any amounts due Buyer for which the Buyer is entitled to indemnification or reimbursement in accordance with Section 14 of this Agreement. Within five (5) business days following the six (6) month anniversary of the Closing (the Termination Date), (a) the Escrow Agent will pay to the Seller the balance of the Escrow Amount remaining on the Termination Date and (b) the escrow of the Escrow Amount will terminate pursuant to the terms of the Escrow Agreement. Notwithstanding the foregoing, if on the Termination Date any claim by Buyer has been made for indemnification pursuant to Section 14 hereof and the Buyer has notified the Escrow Agent and the Seller of such claim in writing, then there will be withheld from the distribution to the Seller such amount of the Escrow Amount as is necessary to cover such pending claim in accordance with the terms of the Escrow Agreement, and such withheld amount will be retained in the escrow pursuant to the terms of the Escrow Agreement and upon resolution of such claim will either be (i) paid to the Buyer or (ii) paid to the Seller, as determined upon final resolution of such claim in accordance with the terms of the Escrow Agreement and this Agreement.
(c) At the time of the Closing, the Asset Purchase Price will be payable by Buyer as follows: (1) $250,000 to JP Morgan Chase, (2) $125,000 to Roger Thiltgen as payment for the Companys obligations to Mr. Thiltgen and (3) $2,915,000 to the Company. The Facility Purchase Price shall be payable by Buyer to Chicago Title Insurance Company (Chicago Title) at Closing by wire transfer of immediately available funds to an account designated in writing by Chicago Title. Chicago Title, in turn, will allocate expenses and disclose all net proceeds for the Facility to Metal Links as permitted in the Settlement Statement, a copy of which is attached as Schedule 5(a) .
(d) In addition to the Purchase Price, based upon the future performance of the business operations generated from the utilization of the Assets, Buyer shall be required to make the following additional payments upon the satisfaction of certain financial goals: (i) a payment of $200,000 will be payable to the Company in the event that the acquired Business conducted at 56568 North Bay Drive, Chesterfield Michigan following the Closing generates net sales of $2,490,412 for the ten-months ending December 31, 2014 with a gross margin of at least 25% and (ii) a payment of $200,000 payable to the Company in the event that the acquired Business conducted at 56568 North Bay Drive, Chesterfield Michigan following the Closing generates net sales of $3,500,000 for the year ending December 31, 2015 with a gross margin of at least 25% (collectively, the Earnout Payments). Calculations of the net sales and the applicable gross margin Earnout Payments will be made in accordance with Generally Accepted Accounting Principles following the completion of the applicable fiscal year in which such net sales are made. Gain on sale of assets, if any, will not be included in calculation of pre-tax profits. A sample calculation of the Earnout Payments, including the calculations of net sales and gross margin, is set forth as Exhibit B to this Agreement. Any Earnout Payments if owing by Buyer to the Company for any applicable fiscal year shall be paid by Buyer to the Company by wire
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transfer of immediately available funds to an account designated in writing by the Company within ten (10) business days following the filing of The ExOne Companys annual report on Form 10-K with the Securities and Exchange Commission for the applicable fiscal year.
(e) Buyer shall prepare an allocation of the Purchase Price among the Assets in accordance with IRC Section 1060 and the Treasury regulations thereunder (and any similar provision of state, local or foreign law, as appropriate), which allocation shall be binding upon Seller. Buyer shall deliver such allocation to Seller within the later of seventy-five (75) days after the Closing Date. Buyer and Seller, and their affiliates, shall report, act, and file Tax Returns (including, but not limited to Internal Revenue Service Form 8594) in all respects and for all purposes consistent with such allocation prepared by Buyer. Seller shall timely and properly prepare, execute, file, and deliver all such documents, forms, and other information as Buyer may reasonably request to prepare such allocation. Neither Buyer nor Seller shall take any position (whether in audits, tax returns, or otherwise) that is inconsistent with such allocation, unless required to do so by applicable law.
6. | REPRESENTATIONS AND WARRANTIES OF SELLER AND METAL LINKS |
Seller and Metal Links, jointly and severally, represent and warrant to Buyer as follows:
6.1 | Organization, Qualification and Status . |
Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Michigan. Company has full corporate power and authority to own, lease and use its properties and to carry on its business as presently conducted. Company is duly qualified or licensed to do business and in good standing as a foreign corporation in any jurisdiction in which the nature of its business or the character of the properties and assets which it owns or leases makes such qualification or licensing necessary. Metal Links is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Michigan. Owner is the sole member of Metal Links. Metal Links has full power and authority to own, lease and use its properties and to carry on its business as presently conducted. Metal Links is duly qualified or licensed to do business and in good standing as a foreign corporation in any jurisdiction in which the nature of its business or the character of the properties and assets which it owns or leases makes such qualification or licensing necessary. Owner owns 100% of the outstanding equity of Company and Metal Links. Owner does not own any equity interest in any other subsidiary or other entity that owns any Assets or conducts any part of the Business, and neither Company nor Metal Links owns any equity interest in any subsidiary or other entity that owns any Assets or conducts any part of the Business.
6.2 | Authorization; Valid and Binding Obligation . |
Company and Metal Links have full power and authority to execute and deliver this Agreement and to perform their respective obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly authorized, executed and delivered by Company and Metal Links. This Agreement constitutes the valid and legally
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binding obligation of each Seller and Metal Links enforceable against such Seller and Metal Links in accordance with its terms.
6.3 | No Violation . |
Except as listed on Schedule 6.3, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, nor compliance with the terms hereof, will (i) conflict with or result in a breach of any of the terms, conditions or provisions of any organizational documents of Company or Metal Links, or (ii) violate, conflict with or result in a breach of or default under any of the terms, conditions or provisions of any agreement, understanding, arrangement, indenture, contract, lease, sublease, loan agreement, note, restriction, obligation or Liability to which Seller or Metal Links is a party or by which they are bound or to which they or their assets are subject (individually, an Instrument and collectively, the Instruments), or (iii) accelerate or give to others any interests or rights, including rights of acceleration, termination, modification or cancellation, under any Instrument or in or with respect to the Business, Assets or the Facility, or (iv) result in the creation of any Encumbrance on the Assets or the Facility, or (v) conflict with, violate or result in a breach of or constitute a default under any law, statute, rule, judgment, order, decree, injunction, ruling or regulation of any government, governmental agency, authority or instrumentality, court or arbitration tribunal to which Seller or Metal Links or to which any of the Assets or the Facility are subject, or (vi) require Seller or Metal Links to give notice to, or obtain an authorization, approval, order, license, franchise, declaration or consent of, or make a filing with, any third party or foreign, federal, state, county, local or other governmental or regulatory body.
6.4 | Absence of Undisclosed and Contingent Liabilities . |
Seller has no Liabilities of any nature (whether secured or unsecured, accrued, absolute or contingent, unliquidated or otherwise and whether known or unknown or due or to become due) as of the date hereof relating to the Business or the Assets other than as listed on Schedule 6.4 hereto or as set forth in the Financial Statements (as defined in Section 6.7).
6.5 | Locations/Prior Names . |
Schedule 6.5 attached hereto lists all of the locations from which Seller has conducted the Business during the five (5) year period preceding the date of this Agreement. Except as set forth on Schedule 6.5 , Company has not, within the five (5) year period preceding the date of this Agreement, changed its name, operated under a fictitious name, been the surviving entity of a merger or consolidation, or acquired all or substantially all of the assets of any person or entity.
6.6 | Tax Matters . |
Seller and Metal Links (i) have timely and properly filed or caused to be filed all tax returns which they are or have been required to file on or prior to the date hereof, by any jurisdiction to which they are or have been subject, all such tax returns being true and correct and complete in all respects, (ii) have timely paid or caused to be paid in full all taxes which are or
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have become due and payable to all taxing authorities with respect to such returns and periods, (iii) have made or caused to be made all withholdings of taxes required to be made by them, and such withholdings have either been paid to the appropriate governmental agency or set aside in appropriate accounts for such purpose, and (iv) have otherwise satisfied, in all material respects, all applicable laws and agreements with respect to the filing of tax returns and the payment of taxes.
6.7 | Financial Statements and Books and Records . |
(a) True and correct copies of the Sellers financial statements for the Business for the period ended December 31, 2013 are attached hereto as Schedule 6.7 (the Financial Statements). The Financial Statements are correct and complete in all respects, were prepared in accordance with the Sellers books and records, and fairly present the financial position and results of the Business as of the dates and for the periods covered thereby. Since December 31, 2013, Seller has conducted the Business in the ordinary course of business and there has not been any material adverse change in the Business, the Assets, or the operations, condition or prospects of the Business. Since December 31, 2013, Seller has not (a) created or incurred any Liability except for unsecured current Liabilities under purchase orders or contracts listed on Schedule 6.7 ; (b) loaned any money or otherwise pledged for the credit of Seller, or mortgaged, pledged or subjected to any Encumbrance or otherwise encumbered any of the Assets; (c) suffered any losses or any other event or condition of any character adverse to the Business, or waived any rights of substantial value with respect to the Business; (d) declared or paid any dividends or made any other distribution on or in respect of, or directly or indirectly purchased, retired, redeemed or otherwise acquired any shares of, the Companys capital stock; (e) suffered any labor disputes or organizational activity by its employees; (f) become bound by or entered into any contract, commitment or transaction other than those listed on Schedule 6.7 ; or (g) entered into any contract or agreement to do or perform any of the foregoing actions.
(b) The books of account and other records of the Business are complete and correct in all respects. Seller (i) keeps books, records and accounts that accurately, fairly and in reasonable detail reflect in all respects the Assets, Liabilities and transactions of the Business and (ii) maintains a system of internal accounting controls sufficient to provide reasonable assurance that all transactions of the Business are accurately and promptly recorded and that all transactions are executed in accordance with managements authorizations.
6.8 | Litigation . |
There is no claim, action, proceeding or investigation pending or threatened (collectively a Claim) against Seller by any third party or before any court or administrative agency that might result, either individually or in the aggregate, in any material adverse change in the Business or Assets, or the prospects, condition, affairs, operation, properties or assets of the Business of the Seller, or in any Liability on the part of Seller in excess of $5,000. To Sellers knowledge, no facts or circumstances exist which could give rise to any Claim against Seller with respect to the Business. There is no Claim against Seller that might affect the validity of this Agreement or which could prevent, hinder or delay consummation of the transactions contemplated by this Agreement.
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6.9 | Title to Assets . |
Except as set forth in Schedule 6.9 , Seller and Metal Links, as applicable, have all right, title and interest in, and good and marketable title to, all of the Assets and the Facility, free and clear of any Encumbrance. Schedule 6.9 lists each Asset that is leased by Seller and used in the Business (the Leased Assets).
Metal Links owns good and marketable title to its estates in the Facility, free and clear of any Encumbrances, other than: (i) liens for taxes for the current tax year which are not yet due and payable; and (ii) those described in Schedule 6.9 (Permitted Encumbrances). True and complete copies of (A) all deeds, existing title insurance policies and surveys of or pertaining to the Facility and (B) all instruments, agreements and other documents evidencing, creating or constituting any Real Estate Encumbrances have been delivered to Buyer. Seller and Metal Links warrant to Buyer that, at the time of Closing, the Facility shall be free and clear of all Encumbrances other than the Permitted Encumbrances. Encumbrance shall mean any charge, claim, community or other marital property interest, condition, equitable interest, lien, option, pledge, security interest, mortgage, right-of-way, easement, encroachment, servitude, right of first option, right of first refusal or similar restriction, including any restriction on use, voting (in the case of any security or equity interest), transfer, receipt of income or exercise of any other attribute of ownership.
6.10 | No Consent . |
Except as listed on Schedule 6.10 , no consent, authorization, approval, exemption or other action by, and no filing, registration or qualification with, any third party or any governmental authority is or will be necessary in connection with the execution and delivery by Seller or Metal Links of this Agreement and all documents to be entered into in connection herewith, the consummation of the transactions contemplated hereby and thereby or the performance by Seller or Metal Links of its obligations hereunder and thereunder.
6.11 | Environmental Matters . |
(a) Seller and Metal Links have complied, and are currently in compliance, with all Environmental Laws that are, or were, applicable to the use of the Assets or the operation of the Business or the condition of the Facility, and has obtained all permits, licenses and other authorizations from, and submitted all forms, fees, registrations, reports and similar filings to, the appropriate person or governmental agency needed, or required, to operate the Business and the Facility in compliance with the applicable Environmental Laws, (b) Seller, the operation of the Business, and the operation of the Facility have been at all times in compliance with all applicable Environmental Laws, (c) Seller and Metal Links are unaware of any present requirement of any applicable Environmental Law which is due to be imposed upon the Seller, the Business or the Facility which will increase the cost of complying with the Environmental Laws post Closing, (d) any past on-site generation, handling, treatment, processing, storage, release and disposal of Hazardous Materials by Seller and its predecessors with regard to the Business or at the Facility have been done in compliance with the currently applicable Environmental Laws; (e) any past off-site transportation, treatment, processing, storage and
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disposal of Hazardous Materials generated by Seller and its predecessors from the Business or at the Facility have been done in compliance with the currently applicable Environmental Laws; (f) Seller and Metal Links have not received any written notice, citation, direction, order or summons alleging any violation or failure of the Seller, the Business or the Facility to comply in any material respect with any Environmental Laws; (g) Seller and its predecessors have not released, spilled, disposed (whether intentionally or unintentionally), leaked, dumped, placed, or otherwise discharged into the environment any Hazardous Materials associated with the Business or at the Facility except as expressly authorized by applicable Environmental Laws; (h) there have not been and currently are no Hazardous Materials present at the Facility in violation of any applicable Environmental Laws; (i) the Facility has no storage tanks either above or below ground; and (j) Seller and its predecessors have not used or otherwise managed any Hazardous Materials associated with the Business or at the Facility except in strict compliance with all applicable Environmental Laws.
As used in this Agreement, the terms (i) Environmental Laws include but are not limited to any federal, state, foreign or local law, statute, regulation, charter or ordinance, and any rule, regulation, binding interpretation, binding policy, permit, license, authorization, order, court order or consent decree issued pursuant to any of the foregoing, which addresses the protection of the environment, human health and safety, and, includes, but is not limited to, pertaining to, governing or otherwise regulating any of the following activities (y) the emission, discharge, disposal (whether intentional or unintentional), placement, migration, leaking, dumping, release or spilling of any Hazardous Material into the air (whether indoor or ambient), surface water, groundwater, soil or substrata, and (z) the manufacturing, processing, sale, generation, handling, treatment, transportation, storage, disposal, labeling, remediation, removal, clean-up or other management of any Hazardous Materials; and (ii) Hazardous Materials include any substance, element, product, material, or chemical, whether liquid, solid, or gas, that in relevant quantity, form or concentration is listed, defined, designated, classified, regulated or otherwise determined to be a pollutant, contaminant, hazardous, dangerous, radioactive or toxic substance, material or waste, or solid waste pursuant to any Environmental Laws, including any admixture or solution thereof, and specifically including, but not limited to, any explosives, radon, solvents, radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyl, noise, petroleum, oil and petroleum products (including waste petroleum and petroleum byproducts, derivatives thereof or synthetic substitutes thereof, or any fraction thereof), and any other substances, mixtures, wastes, pollutants, contaminants, compounds, materials, products or matters that present or may present an imminent and substantial danger to the public health or welfare or to the environmental upon its release or requires or may reasonably be foreseen to require clean-up, remediation or removal.
6.12 | Contracts . |
Schedule 6.12 lists all of the contracts relating to the Business which have not been performed in full. Each of such Contracts is valid, in full force and effect and enforceable in accordance with its terms. Seller has provided to Buyer true and complete copies (or, in the case of oral contracts, true and complete written summaries of the terms) of all such contracts (including all amendments or modifications to all such contracts). Except as set forth on
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Schedule 6.12 attached hereto, no event has occurred or circumstance exists that could, with the passage of time or compliance with any applicable notice requirements or both, constitute a default of, result in a violation or breach of, or give any right to accelerate, modify, cancel or terminate any such contract.
6.13 | Insurance . |
Schedule 6.13 attached hereto is a true and complete list of each insurance policy (including policies providing property, casualty, liability, workers compensation, medical professional and comprehensive general liability coverage and bond and surety arrangements) that is in force as of the date hereof and as to which Seller is a party, a named insured or otherwise the beneficiary of coverage. Except as set forth in Schedule 6.13 , there have been no material claims filed under such policies during the past five (5) years. There are no notices of termination existing under any of such policies.
6.14 | Compliance with Law . |
Seller and Metal Links are, and at all times have been, in compliance with all laws and regulations that are or were applicable to the operation of the Business, the operation and use of the Facility, or the ownership or use of the Assets. Neither Seller nor Metal Links has received any notice or other communication (whether written or oral) from any governmental authority or any other person regarding any actual, alleged, possible or potential violation of, or failure to comply with, any law in connection with the operation of the Business, the operation and use of the Facility, or the ownership or use of the Assets or any actual, alleged, possible or potential obligation on the part of Seller or Metal Links to undertake, or to bear all or any portion of the cost of, any remedial action of any nature in connection with the ownership of the Assets, the operation and use of the Facility, or the operation of the Business.
6.15 | Employee Agreements and Plans . |
Seller has provided to Buyer all employment/personnel files for all employees of Seller with respect to the Business and also with a true, correct and complete list of the names, titles, job descriptions, dates of hire, salaries or other rates of compensation and benefits and accrued vacation of all of the employees of Seller, together with any loans made by Seller to such employees. Schedule 6.15 describes each employee benefit provided to any employee of the Business. Except as set forth in Schedule 6.15 , Seller is not now, nor has it been, a party to or obligated to contribute to any employee benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, guaranteed annual income plan, fund or arrangement, or any incentive, bonus, profit-sharing, deferred compensation, stock option or purchase plan or agreement or arrangement, or any employment or consulting agreement, or any collective bargaining agreement, or any other agreement, plan or arrangement similar to or in the nature of the foregoing, oral or written. Seller has complied in all material respects with all applicable laws, ordinances, rules and regulations relating to the employment of labor and there are no Claims threatened or pending against Seller (or any basis therefor known to Seller) relating to employment matters. Except as set forth on Schedule 6.15 , (a) to Sellers knowledge, no employee has any plans to terminate employment with Seller (other than as contemplated by this
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Agreement); (b) to Sellers knowledge, Seller has not had any threatened or actual strikes or work stoppages or material grievances; (c) to Sellers knowledge, no employees of the Business are subject to any noncompete, nondisclosure, confidentiality, employment, consulting or similar agreements relating to, affecting or in conflict with the Business (other than agreements that benefit the Business); (d) with respect to employees of Seller, Seller (i) is not a party to any collective bargaining agreement and has not had negotiations with any person or group which is the collective bargaining representative for Sellers employees, and (ii) has not experienced any strike, or received written notice of any unfair labor practice claim; and (e) to Sellers knowledge, Seller (i) does not employ any individual who is not legally authorized to work in the United States, and (ii) has complied in all material respects with all state and federal immigration laws. To Sellers knowledge, there has not been any filing by any employee or employee group seeking recognition as a collective bargaining representative. Seller has not violated the Worker Adjustment and Retraining Notification Act (the WARN Act) or any similar state or local law.
6.16 | Permits and Licenses . |
Schedule 6.16 contains a complete and accurate list of each consent, license, registration or permit that relates to the Business, the Assets or the Facility and each of such consents, licenses, registrations or permits is valid and in full force and effect.
6.17 | Assets and Inventory . |
All tangible Assets are in good repair and good operating condition, ordinary wear and tear excepted, have been regularly and appropriately maintained and repaired in the normal course of business, and are adequate and sufficient to carry on the Business as presently conducted. The Assets (a) constitute all of the assets, tangible and intangible, of any nature whatsoever, necessary to operate the Business in the manner presently operated by Seller, and (b) constitute all of the assets and properties necessary to continue conduct of the Business following the Closing as the Business is currently being conducted. The inventories of the Business consist of a quality and quantity usable and, with respect to finished goods, saleable, in the ordinary course of the Business, and include obsolete items.
6.18 | Intellectual Property . |
(a) Schedule 6.18 sets forth a complete and accurate list, of all of the trademarks, trademark registrations, applications for trademark registration, trade names, logos, slogans, patents, know-how, Internet domain names and copyrights owned by the Seller. The Seller is not infringing any patent, copyright, or trademark of any third party or otherwise violating the intellectual property rights of any third party nor has any claim been made or, to the Sellers knowledge, threatened against the Seller alleging any such violation. To the Sellers knowledge, there has not been any violation by others of the Sellers rights in any trademark, copyright or any other intellectual property right.
(b) Schedule 6.18 contains a complete and accurate list of each contract to which the Seller is a party, or by which the Seller is bound, with respect to the license (as licensor or
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licensee) of any intellectual property right excluding shrink wrap license agreements whereby the Seller is a licensee of commercially available software programs.
6.19 | Warranty . |
Except as set forth in Schedule 6.19 , each product manufactured, sold, leased or delivered in connection with the operation of the Business has been in material conformity with all applicable purchase order or contracts and all express and implied warranties, and Seller has no Liability for replacement or repair thereof or other material damages in connection therewith. No event has occurred nor do any circumstances exist that could give rise to or serve as a basis for a claim against Seller in connection with any product warranty provided by Seller. Schedule 6.19 also sets forth all of the terms and conditions of the applicable guaranty, warranty and indemnity of Seller in connection with products manufactured, assembled, produced, distributed, serviced or sold, or services provided, by the Business. Except as described in Schedule 6.19 , no product manufactured, assembled, produced, distributed, serviced or sold, or service provided, by Seller is subject to any other guarantee, warranty or other indemnity.
6.20 | Customers/Suppliers . |
Schedule 6.20 sets forth (a) a list of the top ten customers of the Business by name and dollar volume of products and services provided to such customers (each, a Material Customer ), and (b) a list of the top ten suppliers of the Business by dollar volume of purchases from such suppliers (each, a Material Supplier ), in each case for the twelve (12) months ended December 31, 2013 and 2012, respectively. Except as set forth on Schedule 6.20 , with respect to the Material Customers or Material Suppliers, Seller has not received any notification (written or oral) that (i) any such customer, distributor or supplier has or intends to breach, repudiate, terminate or otherwise fail to perform under any existing written contract or will not consider Seller for future work, (ii) any such vendor will not conduct business with Seller in the future, or (iii) intends to materially modify the terms upon which it would be willing to conduct business with Seller in the future.
6.21 | Accounts Receivable . |
Schedule 6.21 contains a complete and accurate list of all Accounts Receivable as of the Closing, which list sets forth the names of each customer, the amount of order account receivables and the date of invoice or billing for each such Account Receivable. All Accounts Receivable that are reflected on the Financial Statements or on Schedule 6.21 as of the Closing represent or will represent valid obligations arising from sales actually made or services actually performed by Seller in the ordinary course of business. Except to the extent paid prior to the Closing, such Accounts Receivable are or will be as of the Closing current and collectible net of the respective reserves shown on the Financial Statements or as otherwise set forth on Schedule 6.21 . Attached hereto as Schedule 6.21 is a true and correct list of all receivables which have been deemed uncollectible and are not reflected in the Financial Statements. Subject to such reserves, each of such Accounts Receivable either has been or will be collected in full, without any setoff, within ninety (90) days after the day on which it first becomes due and payable. There
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is no contest, claim, defense or right of setoff with any account debtor of an Account Receivable relating to the amount or validity of such Account Receivable.
6.22 | Occupational Health and Safety . |
To Sellers knowledge, except as set forth on the attached Schedule 6.22 : (a) Seller has in all respects complied with and is currently in compliance with all Occupational Safety and Health Laws, and Seller has not received any oral or written notice or report and no judicial proceeding or governmental or administrative action is pending or threatened, regarding any liabilities or any violation or alleged violation of any Occupational Safety and Health Laws which relate to Seller; (b) Seller has obtained, applied for renewal of, and materially complied with, and is currently in material compliance with, all material authorizations that are required pursuant to applicable Occupational Safety and Health Laws for the current operation of the Business; and (c) neither this Agreement nor the consummation of the Closing contemplated by this Agreement shall impose any obligations on Seller or otherwise under any Occupational Safety and Health Law. Occupational Safety and Health Law means any law designed to provide safe and healthful working conditions and to reduce occupational safety and health hazards.
6.23 | Solvency . |
Seller is not now insolvent and will not be rendered insolvent by any of the transactions contemplated under this Agreement. As used in this section, insolvent means that the sum of the debts and other probable Liabilities of Seller exceeds the present fair saleable value of Sellers assets. Immediately after giving effect to the consummation of the transactions contemplated under this Agreement, (i) Seller will be able to pay its Liabilities as they become due in the usual course of its business; (ii) Seller will not have unreasonably small capital with which to conduct its present or proposed business; (iii) Seller will have assets (calculated at fair market value) that exceed its Liabilities; and (iv) taking into account all pending and threatened litigation, final judgments against Seller in actions for money damages are not reasonably anticipated to be rendered at a time when, or in amounts such that, Seller will be unable to satisfy any such judgments promptly in accordance with their terms (taking into account the maximum probable amount of such judgments in any such actions and the earliest reasonable time at which such judgments might be rendered) as well as all other obligations of Seller. The cash available to Seller, after taking into account all other anticipated uses of the cash, will be sufficient to pay all such debts and judgments promptly in accordance with their terms.
6.24 | Non-Foreign Status of Owner . |
Owner is not a foreign person within the meaning of Section 1445(f)(3) of the Internal Revenue Code. Such Seller is not a foreign person within the meaning of Treasury Regulations Section 1.1445-2(b).
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6.25 | Facility . |
(a) Seller and Metal Links hereby represent and warrant to Buyer that Metal Links owns the entire and undivided good, marketable and fee simple title in and to the Facility. Schedule 6.25 contains a correct legal description, street address and tax parcel identification number of the Facility.
(b) The heating, ventilation, air-conditioning, plumbing, and electrical systems, elevators and loading doors, if any, are in good operating order and condition, reasonable wear and tear excepted.
(c) Seller and Metal Links have received no notice that the Facility or any portion thereof is or will be subject to or affected by any special taxes, levies or assessments or any eminent domain, condemnation or similar proceedings.
(d) Seller and Metal Links have not received written notice and have no actual knowledge that any certificates of occupancy, licenses, certificates or permits issued by any governmental authority or any board of fire underwriters or similar organization or institution necessary for the leasing and operation of the Facility as currently conducted have been revoked or challenged.
(e) Seller and Metal Links have not received and have no knowledge of any notices of any violation of any law, code, order or requirement issued by any municipal or other public authority against or affecting all or any portion of the Facility or with regard to any work or improvements done or ordered by such authority to be done either before or after the date of this Agreement.
(f) There are no outstanding bills incurred for labor and materials used in making improvements or repairs on the Facility, or for services of architects, surveyors or engineers in connection therewith, and there are no outstanding or unperformed contracts for the making of improvements or repairs on the Facility or any portion thereof.
(g) There are no contracts, leases or agreements now in force between Metal Links or any other parties with respect to or affecting the Facility that would continue in force and effect subsequent to the Closing and would in any manner whatsoever be binding upon or enforceable against Buyer.
(h) All improvements included in the Facility are in compliance with all applicable laws and regulations, including those pertaining to zoning, building and the disabled, are in good repair and in good condition, ordinary wear and tear excepted, and are free from latent and patent defects. No part of the improvements located on the Facility encroaches on any real property not included in the Facility, and there are no buildings, structures, fixtures or other improvements primarily situated on adjoining property which encroach on any part of the Facility. The Facility abuts on and has direct vehicular access to a public road or has access to a public road via a permanent, irrevocable, appurtenant easement benefiting such Facility, is supplied with public or quasi-public utilities and other services appropriate for the operation of the improvements located on the Facility and is not located within any flood plain or area subject to wetlands regulation or
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any similar restriction. There is no existing or proposed plan to modify or realign any street or highway or any existing or proposed eminent domain proceeding that would result in the taking of all or any part of the Facility or that would prevent or hinder the continued use of the Facility as heretofore used in the conduct of the business of Seller.
(i) Seller and Metal Links warrant that the Facility has the following Zoning Classification: Industrial. The present use is in compliance therewith, and that there exists no notice of any uncorrected violations of housing, building, safety or fire ordinances.
6.26 | Disclosure . |
No representation or warranty of Seller or Metal Links in this Agreement and no statement or disclosure in any Schedule hereto omits to state a material fact necessary to make the statements herein or therein, in light of the circumstances in which they were made, not misleading. Except as otherwise set forth in this Agreement or any Schedule hereto, there is no fact known to Seller or Metal Links that has specific application to Seller (other than general economic or industry conditions) and that could reasonably be expected to have a material adverse effect on the assets, business, prospects, financial condition, or results of operations of the Business.
7. | REPRESENTATIONS AND WARRANTIES OF BUYER |
Buyer represents and warrants to Seller as follows:
7.1 | Organization and Qualification . |
Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has the power and authority to carry on its business as presently conducted.
7.2 | Financial Capacity . |
Buyer has financing in place and available to it sufficient to satisfy all of its obligations under this Agreement and to close the transactions described in this Agreement.
7.3 | Authorization; Valid and Binding Obligation . |
Buyer has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement has been duly executed and delivered by Buyer and constitutes the legal, valid and binding obligation of Buyer, enforceable against it in accordance with its terms.
8. | DELIVERIES BY SELLER AND METAL LINKS |
Seller and Metal Links, as applicable to the Facility, shall deliver to Buyer at Closing the following:
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(a) the Escrow Agreement;
(b) a recordable general warranty deed for the transfer of the Facility to Buyer, or an affiliate of Buyer, conveying good, marketable, and insurable fee simple title clear of all Encumbrances, except Permitted Encumbrances, without defect, with marketable title such as can be insured by a reasonable title insurance company at regular rates (Metal Links shall be responsible for all matters of title clearance necessary in order to deliver title to Facility as stated above), substantially in the form attached hereto as Exhibit C (the Deed);
(c) a bill of sale and assignment and assumption agreement in a form reasonably acceptable to Buyer (the Assignment);
(d) an employment agreement with Buyer executed by Mr. William R. Dega, a proprietary information and assignment of inventions agreement, each substantially in the form attached hereto as Exhibit D (the Employment Agreement ) together with such other documents and acknowledgements required to be signed by Mr. Dega as an employee of The ExOne Company;
(e) offer letters from The ExOne Company executed by the employees named on Schedule 15(a) together with all other employment documents requested to be executed by The ExOne Company in connection with the commencement of employment by The ExOne Company or Buyer following the Closing.
(f) any assignments or documents required to transfer accreditations, permits or licenses;
(g) a recent good standing certificate of Company and Metal Links, from the Secretary of the State of Michigan;
(h) copies of all corporate actions duly taken by or on behalf of Company and Metal Links, including actions of Companys shareholders and Board of Directors and by Metal Links sole member, duly certified by the Secretary of Company or Metal Links, authorizing the execution, delivery and performance of this Agreement and the other agreements, instruments and documents contemplated hereby and to be delivered hereunder, which actions shall be in full force and effect at the time of delivery on the Closing Date;
(i) letter from Trinity, a division of Bank of the West in form and substance satisfactory to Buyer acknowledging pay-off in full of Master Lease Agreement No. 63374 and Schedule 001, dated October 2, 2012 between Trinity, a division of Bank of the West and termination and release of any and all Encumbrances against any Asset that Trinity may have had against any Asset;
(j) originals of any other required consents/approvals listed on Schedule 6.10 or otherwise necessary in order to transfer the Assets;
(k) letter from Huntington National Bank in form and substance satisfactory to Buyer acknowledging pay-off in full of existing debt Promissory Note, dated August 9, 2012 by and between Company and Huntington National Bank and termination and release of any and all Encumbrances against any Asset that Huntington National Bank may have had against any Asset;
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(l) certifications of non-foreign status, as contemplated under Section 1.1445-2(b)(2) of the Treasury Regulations, certifying that each of Owner, Metal Links and the Company is not a foreign person; and
(m) such other assignments, consents, approvals and other instruments as Buyer or its agents may reasonably request.
9. | DELIVERIES BY BUYER |
Buyer shall deliver to Seller and Metal Links, as applicable to the Facility, at Closing the following executed agreements:
(a) the Assignment;
(b) the Employment Agreement;
(c) the Escrow Agreement;
(d) the Closing Payment;
(e) a recent good standing certificate of Buyer from the Secretary of State of Delaware; and
(f) copies of all corporate actions taken by or on behalf of Buyer, including actions of Buyers Board of Directors, duly certified by the Secretary of Buyer, authorizing the execution, delivery and performance of this Agreement and the other agreements, instruments and documents contemplated hereby and to be delivered hereunder, which actions shall be in full force and effect at the time of delivery on the Closing Date.
10. | COVENANT NOT TO COMPETE / SOLICIT |
10.1 | Non-Competition / Non-Solicit Agreement . |
Seller and Metal Links agree that for a period of three (3) years after the date hereof (the New Company Period), they will not:
(a) Directly or indirectly engage, whether as a consultant, independent contractor, agent, employee, owner, officer, partner, director or otherwise, alone or in association with any other person, corporation or other entity, engage in any Competing Business operating, planning to operate, offering products or services or planning to offer products or services within one hundred (100) miles of any geographic location where the Buyer or Business products or services are sold or provided for sale. Competing Business shall mean any individual, corporation, partnership, business or other entity that provides or attempts to provide any products or services that are the same or similar to any products or services offered by the Buyer or the Business.
(b) Directly or indirectly solicit, attempt to obtain business from, accept business from, or do business with or service any Customers or Prospective Customers of the Business or
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any Customers or Prospective Customers of the Buyer. Customer, as used herein, shall mean any person or entity that procured any products or services from the Buyer or Business during the two (2) years preceding the Closing Date or that is a customer of the Business during the Non-Compete Period and Prospective Customers, as used herein, shall mean any person or entity that the Buyer or Business solicited, contacted and/or communicated with for business purposes during the two (2) years preceding the Closing Date or that is a customer of the Business during the Non-Compete Period;
(c) Directly or indirectly interfere, induce or attempt to induce, or otherwise attempt to disrupt the relationship, contractual or otherwise, between the Buyer and any of their employees or the Business employees, or solicit an employee of the Buyer or a Business employee to terminate employment with the Buyer and/or Business;
(d) Directly or indirectly hire or participate in the hiring of any person who is or was employed by the Buyer or Business; or
(e) Directly or indirectly interfere, induce or attempt to induce, or otherwise attempt to disrupt the relationship, contractual or otherwise, between the Buyer and its vendors, consultants, or independent contractors or the Business and its vendors, consultants, or independent contractors.
The existence of any claim, dispute, or cause of action of the Seller against the Buyer, whether predicated on this Agreement or otherwise, will not constitute a defense to the enforcement by the Buyer of this covenant. Nothing in this Section 10 shall restrict Owner from performing services under the Employment Agreement that are properly within his scope of employment with Buyer.
10.2 | Acknowledgments . |
Seller and Metal Links hereby acknowledge and agree that:
(a) This Section is necessary for the protection of the legitimate business interests of the Buyer;
(b) Seller has no intention of competing with the Buyer within the area and the time limits set forth hereinabove; and
(c) The provisions of this Section are a condition to Buyers obligations under this Agreement, without which Buyers purchase of the Assets will not occur.
10.3 | Unique Nature of Agreement . |
Buyer, Seller and Metal Links agree that the rights conveyed by this Section are of a unique and special nature. Buyer, Seller and Metal Links agree that any violation of this Agreement will result in immediate and irreparable harm to Buyer and that in the event of any actual or threatened breach or violation of any of the provisions of this Section, Buyer will be entitled as a matter of right to an injunction or a decree of specific performance from any equity court of competent jurisdiction. Seller waives the right to assert the defense that such breach or violation can be compensated adequately in damages in an action at law. Nothing in this Section
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will be construed as prohibiting Buyer from pursuing any other remedies at law or in equity available to it for such breach or violation or threatened violation.
10.4 | Severability and Reformation . |
The covenants and provisions of this Section will be severable, and in the event that any portion of this Section is held to be unlawful or unenforceable, the same will not affect any other portion of this Section, and the remaining terms and conditions or portions thereof will remain in full force and effect. This Section will be construed in such case as if such unlawful or unenforceable portion had never been contained in this Section, in order to effectuate the intentions of the parties contained in this Section. If any one or more of the provisions contained in this Agreement are for any reason held to be excessively broad as to duration, geographic scope, activity or subject, the Parties intend for this Agreement to be modified by limiting and reducing it, so as to be enforceable to the greatest extent permitted under applicable law. The foregoing is not an admission or evidence that any of the terms or conditions of this Agreement are unreasonable.
10.5 | Tacking . |
If Seller or Metal Links violate any of the above restrictions, the time period for such restriction will be extended by that number of days which equals the aggregate of all days during which at any time any such violations occurred.
11. | EXPENSES |
Except as otherwise specifically set forth herein, Seller and Metal Links shall pay all fees and expenses incurred by Seller and Metal Links in connection with the transactions provided for hereunder, including the fees and expenses of Sellers and Metal Links counsel and accountants and any transfer taxes imposed upon the sale of the Assets (other than any real estate transfer taxes as provided for below) and Buyer shall pay all expenses incurred by it in connection with the transactions provided for hereunder, including the fees and expenses of its counsel and accountants. The cost of real estate transfer taxes will be divided equally between Metal Links and Buyer. Buyer and Metal Links will pro rate real estate taxes payable with respect to the Facility as of the Closing Date. In the event the ad valorem tax bills have not been issued for the current year as of the Closing, such taxes shall be prorated at the Closing, based on a calendar year basis, unless a tax is levied on a fiscal year basis, in which case, such tax shall be prorated on a fiscal year basis, based upon the most recent tax bill available at the Closing Date, which shall be deemed conclusive between Metal Links and Buyer for all purposes. Seller and Metal Links shall be jointly and severally responsible for cost of deed preparation, deed recording, all matters of the title clearance, including, without limitation, costs associated with obtaining municipal lien letters and dye tests, and its own attorneys fees. Buyer shall be responsible for the cost of the survey and any costs associated with the issuance of any Title Insurance policy, other than any costs associated with title clearance.
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12. | ABSENCE OF BROKER OR FINDER |
Roger Thiltgen assisted Seller in connection with the transactions provided for in this Agreement, and Seller will pay Mr. Thiltgen $125,000 for such services. Except as described in the preceding sentence, Seller represents and warrants to Buyer that no person is acting or has acted for it as broker or finder in connection with the transactions provided for by this Agreement. Buyer represents and warrants to Seller that no person is acting or has acted for it as broker or finder in connection herewith. On the Closing Date, $125,000 will be paid out of the Asset Purchase Price to Mr. Thiltgen for the services provided by him to the Seller. Each party hereto will indemnify and hold the other party harmless against any claims or demands for a brokerage commission from any other parties purporting to act on behalf of such party.
13. | NOTICES |
Any notice, request, demand or other communication given by any party under this Agreement (each a notice) shall be in writing and shall be deemed to be duly given (i) when personally delivered, or (ii) upon delivery by United States Express Mail or similar overnight courier service which provides evidence of delivery, or (iii) when five days have elapsed after its transmittal by registered or certified mail, postage prepaid, return receipt requested, addressed to the party to whom directed at that partys address as it appears below or another address of which that party has given notice, or (iv) when delivered by facsimile or email transmission if a copy thereof is also delivered in person or by overnight courier. Notices of address change shall be effective only upon receipt notwithstanding the provisions of the foregoing sentence.
Notice to Buyer shall be sufficient if given to:
ExOne Americas LLC
127 Industry Boulevard
North Huntingdon, PA 15642
Attention: |
JoEllen Lyons Dillon Chief Legal Officer The ExOne Company |
Email: JoEllen.Dillon@exone.com
Facsimile No.: 724 765 1380
with copies to:
Buchanan Ingersoll & Rooney Professional Corporation
One Oxford Centre, 20th Floor
301 Grant Street
Pittsburgh, PA 15219
Attention: Hannah T. Frank
Email hannah.frank@bipc.com
Fax No.: 412-562-1041
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Notice to Seller and Metal Links shall be sufficient if given to:
Mr. and Mrs. William R. Dega
3609 South River Road
East China, Michigan 48054
Email: mamphoenix@msn.com
with copies to:
Molosky & Co.
2001 Harbor-Petoskey Road
Petoskey, Michigan 49770
Attention: Donald J. Molosky, Esq.
Fax No.: (231) 487-9001
Email: DMolosky@Molosky.com
14. | INDEMNIFICATION AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES |
14.1 | Payment of Taxes, Satisfaction of Excluded Liabilities and Indemnity by Seller . |
(a) Seller and Metal Links shall pay in a timely manner all taxes resulting from or payable in connection with the sale of the Assets pursuant to this Agreement (except as set forth in Section 11), regardless of the person on whom such taxes are imposed. For the avoidance of doubt, all sales, use, excise, value-added, goods and services, transfer, recording, documentary, registration, conveyancing and similar taxes that may be imposed on the sale and transfer of the Assets (including any stamp, duty, or other tax chargeable in respect of any instrument transferring property and any recording fees or expenses payable in connection with the sale and transfer of the Assets), together with any and all penalties, interest and additions to tax with respect thereto, shall be paid by Seller and Metal Links, as applicable. Buyer, on one hand, and Seller and Metal Links, on the other hand, shall cooperate in timely making all filings, returns, reports and forms as may be required to comply with the provisions of applicable law in connection with the payment of any such taxes described in this Section 14.1(a).
(b) Seller and Metal Links shall pay or perform in full all of the Excluded Liabilities. If any such Excluded Liabilities are not so paid or performed, or if Buyer reasonably determines that failure to make any payments will impair Buyers use or enjoyment of the Assets or conduct of the Business, Buyer may, at any time after the Closing Date, elect to make all such payments directly (but shall have no obligation to do so) and make a claim under Section 14.1. In the event that Buyer performs, discharges or satisfies any Excluded Liability, Seller and Metal Links will immediately and fully indemnify Buyer for Buyers costs, fees and expenses (including any reasonable attorneys fees) with respect to Buyers performance, discharge or satisfaction of such Excluded Liability.
(c) Seller and Metal Links, jointly and severally, shall indemnify Buyer, and its affiliates, directors, officers, shareholders, employees, agents, representatives, successors and
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assigns against any and all claims, losses, Liabilities, damages, lost profits, expenses (including reasonable attorneys fees and costs of suit) (Losses) which may be asserted against, incurred or required to be paid by Buyer or its affiliates, directors, officers, shareholders, employees, agents, representatives, successors and assigns by reason or on account of (i) any representation or warranty made by Seller or Metal Links herein being untrue or incorrect in any respect; or (ii) any failure by Seller and Metal Links to observe or perform their covenants and agreements set forth herein or in any agreement entered into pursuant to this Agreement; or (iii) any Excluded Liabilities.
14.2 | Indemnity by Buyer . |
Buyer shall indemnify Seller, Metal Links and their affiliates, directors, officers, shareholders, employees, agents, representatives, successors and assigns against any and all Losses which may be asserted against, incurred or required to be paid by Seller, Metal Links or its affiliates, directors, officers, shareholders, employees, agents, representatives, successors and assigns by reason or on account of (i) any representation or warranty made by Buyer herein being untrue or incorrect; or (ii) any failure by Buyer to observe or perform its covenants and agreements herein or in any agreement entered into pursuant to this Agreement.
14.3 | Survival . |
Except as set forth below, all of the representations and warranties provided for in this Agreement or in any certificate delivered pursuant to the provisions hereof or in connection with the transactions contemplated hereby shall survive the Closing until March 3, 2016; provided that any representations and warranties shall survive with respect to, and to the extent of, any claim for indemnification made in accordance with this Section 14 prior to the applicable termination date until final resolution of such claim. The representations and warranties in Section 6.6 (Taxes) and Section 6.11 (Environmental Matters) shall survive for the applicable statute of limitations period and any extensions or waivers thereof, and the representations and warranties in Section 6.9 (Title to Assets) and Section 6.25 (a) shall survive without expiration. All covenants, agreements and other indemnification obligations contained in this Agreement other than as set forth in this Section 14.3 shall survive without expiration.
14.4 | Limitations on Indemnification . |
With respect to indemnification pursuant to Section 14.1(c)(i), excepting any claim in connection with the representations and warranties in Section 6.6 (Taxes), Section 6.11 (Environmental Matters), Section 6.9 (Title to Assets), Section 6.21 (Accounts Receivable) and Section 6.25(a) and any claims for fraud or intentional misrepresentation, the Company, (a) Seller and Metal Links shall not be liable for indemnification hereunder unless and until the aggregate amount of Losses under all such claims under Section 14.1(c)(i) exceeds Ten Thousand Dollars ($10,000) (US) (the Basket), in which event Buyer and such other indemnified persons shall be entitled to indemnification for all damages from dollar one and (b) Seller and Metal Links shall not be liable for aggregate Losses in excess of $250,000 (the Cap). For the avoidance of doubt, the Basket and the Cap shall not be applicable to (i) any claim in connection with the representations and warranties in Section 6.6 (Taxes), Section 6.9 (Title to
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Assets), Section 6.21 (Accounts Receivable) or Section 6.25(a) and any claims for fraud or intentional misrepresentation, (ii) any failure by Seller or Metal Links to observe or perform their covenants and agreements set forth herein or in any agreement entered into pursuant to this Agreement; or (iii) any Excluded Liabilities. With respect to indemnification pursuant to Section 14.2(i), (a) Buyer shall not be liable for indemnification hereunder unless and until the aggregate amount of Losses under all such claims under Section 14.2(i) exceeds Ten Thousand Dollars ($10,000) (US), in which event Seller, Metal Links and such other indemnified persons shall be entitled to indemnification for all damages from dollar one and (b) Buyer shall not be liable for aggregate Losses in excess of $250,000.
14.5 | Indemnification Procedures . |
Any party making a claim for indemnification under this Article 14 (the Indemnitee) shall notify the indemnifying party (the Indemnitor) of the claim in writing promptly after discovering the claim or receiving written notice of a claim against it (if by a third party), describing the claim, the amount thereof (if known and quantifiable), and the basis thereof. The obligations and Liabilities of the Indemnitor with respect to claims resulting from the assertion of Liability by any third party shall be subject to the following terms and conditions:
(a) In the event any action, suit or proceeding is brought against the Indemnitee, with respect to which the Indemnitor may have Liability under the indemnity agreements contained herein, the action, suit or proceeding shall be defended (including all proceedings on appeal or for review which counsel for the Indemnitee shall deem appropriate) by the Indemnitor. The Indemnitee shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the Indemnitees own expense unless the employment of such counsel and the payment of such fees and expenses both shall have been specifically authorized by the Indemnitor in connection with the defense of such action, suit or proceeding. In such case, only that portion of such fees and expenses reasonably related to matters covered by the indemnity agreements contained herein shall be borne by the Indemnitor. The Indemnitee shall be kept fully informed of such action, suit or proceeding at all stages thereof whether or not it is so represented. The Indemnitee shall make available to the Indemnitor and its attorneys and accountants all books and records of the Indemnitee relating to such proceedings or litigation and the parties hereto agree to render to each other such assistance as they may reasonably require of each other in order to ensure the proper and adequate defense of any such action, suit or proceeding.
(b) The Indemnitee shall not make any settlement of any claims without the written consent of the Indemnitor, which consent shall not be unreasonably withheld or delayed.
15. | EMPLOYEES OF SELLER |
(a) Seller shall terminate, effective as of the Closing Date, all of its employees for which Buyer in its sole discretion desires to employ following Closing. Buyer or The ExOne Company, a Delaware corporation and parent of Buyer (the Parent) shall offer employment on an at-will basis to such employees, subject to Buyers or Parents standard employment policies
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and practices, subject to Section 15(b) below. Schedule 15(a) attached hereto contains a list of all employees Buyer or Parent will hire following Closing. Seller shall use their best efforts to assist Buyer and Parent in obtaining a written acknowledgment from such employees acknowledging their continued employment with Buyer. Employees who are offered continued employment with Buyer or Parent and who accept such offer and actually commence employment with Buyer or Parent on or after the Closing Date are hereinafter referred to as Transferred Employees.
(b) Transferred Employees shall be eligible to participate in each Buyer or Parent welfare and/or fringe benefit plan, fund, program and/or arrangement, being provided to similarly situated employees of Buyer or Parent in accordance with their terms. For purposes of any health and welfare plan of Buyer, Buyer will use reasonable efforts to cause the Transferred Employees to receive credit for their service with the Company to the same extent such service was recognized under a corresponding health and welfare benefit plan of the Company. Transferred Employees shall be eligible, effective as of their date of hire, to participate in the ExOne Company 401(k) Plan (the Plan) in accordance with the terms of the Plan applicable to newly hired employees, with the exception that such Transferred Employees service with the Company shall be treated as service with a predecessor employer of the Plan for purposes of Eligibility Service and Vesting Service (as defined in the Plan).
(c) Owner will, and will cause Company to, pay to each Transferred Employee a bonus equal one week salary for each employee by check on March 6, 2014. The amount of the bonus for each Transferred Employee is listed on Schedule 15(a).
16. | FURTHER ASSURANCES |
Each party shall, upon request of any of the other parties hereto, at any time and from time to time execute, acknowledge, deliver and perform all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and instruments of further assurances as may reasonably be necessary or appropriate to carry out the provisions and intent of this Agreement. In addition, Seller and Metal Links will cooperate with Buyer to address or resolve any Excluded Liability or other Claim relating to the conduct of the Business or ownership of the Facility prior to the Closing.
17. | POST CLOSING COOPERATION |
Seller will provide Buyer with access to any billing, financial and other records of Buyer and reasonably cooperate with Buyer relating to Buyers past operations of the Business as may reasonably be required by Buyer in connection with transition matters or any third party or governmental inquiry or claim or refund or similar claim by any governmental entity, private insurer or patient.
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18. | CHANGE OF COMPANYS NAME |
Within a reasonable time following the Assignment Completion Date (as defined below), the Company shall amend its articles of incorporation and other governing documents and take all other actions necessary to change its name to Walleye Hunters, Inc.
19. | PERFORMANCE OF AGREEMENTS |
Seller acknowledges that the Contracts listed on Schedule 6.10 and the Permits listed on Schedule 6.16 may not be assigned to Buyer without the consent of the other parties to such Contracts or Permits. Nothing herein contained shall be deemed an attempt to assign or transfer or an assignment or transfer of any Contract or Permit, including any contract, agreement, indenture, license, lease, commitment, option, plan, arrangement, sales order or purchase order, in any case whether written or oral, if an assignment or transfer or attempted assignment or transfer of the same without the consent of the other party or parties thereto would constitute a breach thereof, or if an assignment or transfer or attempted assignment or transfer would constitute a violation of any law, decree, order, regulation or other governmental edict. Following the Closing, Seller will cooperate fully with Buyer to obtain as soon as is reasonably practicable the consents or approvals to the assignment of such Contracts of Permits or to replace such Contracts and Permits with new Contracts or Permits in Buyers name or the name of The ExOne Company. Until such consents or approvals or replacement Contracts or Permits are obtained, Seller will perform the Contracts and perform under the Permits on behalf of the Buyer until the earliest date on which (1) consent to the assignment of such Contract or Permit is obtained on the terms and conditions satisfactory to Buyer, (2) such Contract or Permit has terminated by its terms or (3) such Contract or Permit is replaced or superseded by a new Contract or Permit. Seller acknowledges that Buyer has already paid for the benefit of such Contracts and Permits with the payment of the Asset Purchase Price and that no additional fees, cost or consideration will be payable by Buyer to Seller for Sellers performance under this Section 19. At such time as any consent or approval of any such Contract or Permit is obtained, Seller covenants to execute an assignment or any such other documentation as may be required to evidence the assignment of such Contract or Permit.
Buyer shall provide the Company a limited license to use the name Machin-A-Mation Corporation for the sole purpose of performing under the Contracts listed on Schedule 6.10 and the Permits listed on Schedule 6.16 until such time as Buyer has obtained the consents or approvals to the assignment of such Contracts of Permits or to replace such Contracts and Permits with new Contracts or Permits in Buyers name or the name of The ExOne Company (the Assignment Completion Date). Within a reasonable time following the Assignment Completion Date, the Company shall amend its articles of incorporation and other governing documents and take all other actions necessary to change its name to Walleye Hunters, Inc.
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20. | MISCELLANEOUS |
20.1 | Governing Law . |
This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without regard to any jurisdictions conflicts of laws provisions.
20.2 | Counterparts/Use of Facsimiles . |
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute a single agreement. The reproduction of signatures by means of a telecopying device shall be treated as though such reproductions are executed originals and each party hereto covenants and agrees to provide the other parties with a copy of this Agreement bearing original signatures within five days following transmittal by facsimile.
20.3 | Entire Agreement . |
This Agreement, together with the Schedules hereto, the Deed, the Escrow Agreement and Employment Agreement of Mr. William R. Dega, constitutes the entire agreement of the parties hereto respecting its subject matter and supersedes all negotiations, preliminary agreements and prior or contemporaneous discussions and understandings of the parties hereto in connection with the subject matter hereof. This Agreement may be amended, modified, or supplemented only by a writing signed by all parties by their duly authorized representatives. Any party may waive the benefit of a term or condition of this Agreement and such waiver will not be deemed to constitute the waiver of another breach of the same, or any other, term or condition. The headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of any provision of this Agreement.
20.4 | No Presumption Against Draftsman . |
There shall be no presumption against any party on the ground that such party or its counsel was responsible for preparing this Agreement or any part hereof.
20.5 | Jurisdiction/Service of Process/Waiver of Jury Trial . |
Any proceeding arising out of or relating to this Agreement or any transaction in connection herewith may be brought in the courts of the County of St. Clair, Michigan, or, if it has or can acquire jurisdiction, in the United States District Court located within the County of St. Clair, Michigan, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding shall be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement or any transaction contemplated herewith in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any
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proceeding referred to in the first sentence of this Section may be served on any party anywhere in the world. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 20.5.
20.6 | Non-Disclosure/Public Announcement . |
Any public announcement, press release or similar publicity with respect to this Agreement or the transactions associated herewith will be issued, if at all, at such time and in such manner as Buyer determines. Except with the prior consent of Buyer or as permitted by this Agreement, neither Seller nor any of their representatives shall disclose to any person (a) any information about the transactions contemplated by this Agreement, including the status of such discussions or negotiations, the execution of any documents (including this Agreement) or any of the terms of the transactions contemplated by this Agreement or the related documents (including this Agreement). Seller and Buyer will consult with each other concerning the means by which Sellers employees, customers, suppliers and others having dealings with Seller will be informed of the transactions contemplated by this Agreement, and Buyer will have the right to be present for any such communication. The Buyer and Seller have entered into that certain non-disclosure agreement dated June 5, 2013, the terms of such non-disclosure agreement shall survive the Closing.
20.7 | Real Estate Matters . |
Prior to the Closing, Buyer shall have obtained a survey of the Facility. In addition, Buyer shall obtain at the Closing an owners title insurance policy (the Title Policy) in form and substance acceptable to Buyer, from Chicago Title (the Title Company), pursuant to which the Title Company shall insure Buyers title to the Facility with no exceptions other than the Permitted Encumbrances, based solely upon the conveyance from Metal Links to Buyer as set forth in this Agreement and the payment by Buyer of not more than the premium normally charged by the Title Company for the amount of coverage contained in such policy. 1
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20.8 | Successors And Assigns . |
This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, but shall not be assigned by any party hereto without the prior written consent of the other parties.
[The Remainder of this Page is Intentionally Blank.]
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[Signature Page to Asset Purchase Agreement]
IN WITNESS WHEREOF, each of the parties has executed this Agreement or caused this Agreement to be executed by its duly authorized officer as of the date first above written.
EXONE AMERICAS LLC | ||||
By: | The ExOne Company, its sole member | |||
By: |
/s/ Brian W. Smith |
|||
Name: |
Brian W. Smith |
|||
Title: |
CFO and Treasurer |
|||
MACHIN-A-MATION CORPORATION | ||||
By: |
/s/ William R. Dega |
|||
Name: |
William R. Dega |
|||
Title: |
President |
|||
METAL LINKS, LLC | ||||
By: |
/s/ William R. Dega |
|||
Name: |
William R. Dega |
|||
Title: |
Owner |
|||
/s/ William R. Dega |
||||
William R. Dega |
EXHIBIT A
Escrow Agreement
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EXHIBIT B
Sample Earnout Payments Calculation
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EXHIBIT C
Deed
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EXHIBIT D
Employment Agreement
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List of Schedules
Schedule 3 | TRANSFER OF THE ASSETS | |
Schedule 3(a) | TRANSFER OF THE ASSETS | |
Schedule 3(b) | TRANSFER OF THE ASSETS | |
Schedule 3(c) | TRANSFER OF THE ASSETS | |
Schedule 4(a) | ASSUMPTION OF LIABILITIES | |
Schedule 6.3 | NO VIOLATION | |
Schedule 6.4 | ABSENCE OF UNDISCLOSED AND CONTINGENT LIABILITIES | |
Schedule 6.5 | LOCATIONS/PRIOR NAMES | |
Schedule 6.7 | FINANCIAL STATEMENT AND BOOKS AND RECORDS | |
Schedule 6.9 | TITLE TO ASSETS | |
Schedule 6.10 | NO CONSENT | |
Schedule 6.12 | CONTRACTS | |
Schedule 6.13 | INSURANCE | |
Schedule 6.15 | EMPLOYEE AGREEMENTS AND PLANS | |
Schedule 6.16 | PERMITS AND LICENSES | |
Schedule 6.18 | INTELLECTUAL PROPERTY | |
Schedule 6.19 | WARRANTY | |
Schedule 6.20 | CUSTOMERS/SUPPLIERS | |
Schedule 6.21 | ACCOUNTS RECEIVABLE | |
Schedule 6.22 | OCCUPATIONAL HEALTH AND SAFETY | |
Schedule 6.25 | FACILITY | |
Schedule 15(a) | TRANSFERRED EMPLOYEES OF SELLER |
Exhibit 2.2
Purchase and assignment contract
between
Reinhard Schulze
Seitensteinerstr. 9, 56477 Rennerod
( Seller )
and
ExOne GmbH
Am Mittleren Moos 41, 86167 Augsburg
AG Augsburg, HRB 20036
( Purchaser )
(Seller and Purchaser are also known jointly as Parties
and individually also as Party )
regarding company shares of
MWT Gesellschaft für Industrielle Mikrowellentechnik mbH
Hinter dem Entenpfuhl 17, 65604 Elz
AG Limburg a. d. Lahn, HRB 2608
( MWT )
Preamble
(A) | MWT is a limited liability company established under German with its registered office in Elz and is entered in the Commercial Register of the District Court of Limburg a. d. Lahn under HRB 2608. It is active in the following sector: development, planning, construction and sales of machinery and technical components (in particular for microwave technology applied to industry) as well as consultancy and application engineering for the chemical industry (in particular in the sector of perfume engineering and perfume design). |
(B) | The Seller is the sole shareholder and Managing Director with sole power of representation of MWT. |
(C) | The Seller intends to sell all the company shares he holds in MWT to the Purchaser. The Purchaser intends to purchase these company shares (the Transaction ). |
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Therefore, the Parties agree the following:
§ 1 | Subject of the contract |
1.1 | The registered capital of MWT totals DM 50,000.00 (in words: Deutsche Mark fifty thousand) and is divided into one company share with a nominal value of DM 50,000.00 (in words: Deutsche Mark fifty thousand) (the MWT company share ), which is held by the Seller. |
1.2 | The registered capital has been fully paid in. |
§ 2 | Sale and assignment |
2.1 | The Seller hereby sells the MWT company share to the Purchaser in accordance with the provisions of this Contract. The Purchaser hereby accepts the sale. |
2.2 | The Seller hereby assigns the MWT-Company share to the Purchaser. The assignment of the MWT-Company share takes place under the suspensive condition of full payment of the purchase price (as defined below). The Purchaser hereby accepts the assignment in accordance with the above-mentioned conditions. The seller commits himself to inform the notary in writing about the reception of the purchase price without undue delay. The notary shall use this confirmation as evidence that the condition precedent was fulfilled and take the written confirmation to this deed. |
2.3 | The sale and the assignment of the MWT-Company share shall economically take place as of 31 January 2014, 24:00h / 1 February 00:00h ( Reference date ) and covers all the rights and obligations associated with the MWT-Company share, however, the Seller is entitled to accrued profits until 31 December 2013 in the amount of 1,075,961.36. The Seller has provided the Purchaser with a balance sheet as of 31 January 2014 which is attached hereto as Appendix 2.3 . The Purchaser had the chance to sufficiently review the balance sheet and has not made any objections against its content. |
2.4 | The Seller is entitled to withdraw from this Contract by means of a written declaration to the Purchaser (with a copy to the certifying notary), if the suspensive condition in accordance with § 2.2 has not occurred by the tenth (10th) bank working day after certification of this Contract. |
2.5 | The Seller hereby approves the sale and assignment of the MWT-Company share to the Purchaser in accordance with the conditions of this Contract both in its function as the sole shareholder of MTW as well as Managing Director with sole power of representation of MWT and released from the restrictions of § 181 German Civil Code (BGB). |
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2.6 | The Seller declares to be married in the legal concept of modified community of acquisitions (modifizerte Zugewinngemeinschaft). Accordingly, his wife does not need to issue a consent in line with the requirements under § 1365 German Civil Code (BGB). |
§ 3 | Purchase price |
3.1 | The purchase price for the MWT-Company share is |
EUR 3.500.00,00
(in words: Euro [three million five hundred thousand)
( Purchase price ).
3.2 | The Purchase price is due for payment immediately and is to be paid by bank transfer to the account of the Seller ( Seller account ) mentioned below without the deduction of any costs and fees in freely available funds released from any reservations, conditions and stipulations: |
Kontoinhaber: | Reinhard Schulze | |
Kreditinstitut: | Nassauische Sparkasse Wiesbaden | |
IBAN: | DE 31 51050015 0520093729 | |
BIC: | NASS DE 55 XXX. |
3.3 | The right of the Purchaser to offsetting against the payment claims of the Seller and/or to exercise a right of retention is expressly ruled out, unless the relevant counterclaim of the Purchaser is undisputed or a decision has been made on the latter in a legally binding manner in favour of the Purchaser. |
3.4 | The Parties unanimously assume that no turnover tax (or similar foreign tax) is incurred for the Transaction envisaged in this Contract. In the event that the responsible tax authority holds a different opinion, the Purchase price is to be understood plus statutory turnover tax as well as plus any interest in this respect (insofar and to the extent that the latter are incurred on this tax in accordance with the applicable law). The Purchaser is obliged to pay the relevant additional amounts (i.e. turnover tax and any interest if applicable) within one (1) months after receipt of a copy of the tax assessment, which determines the relevant tax obligation to the Seller. The Seller will immediately issue the Purchaser with an invoice for this in line with the applicable fiscal requirements and which shall allow the Purchaser to a pre-tax allowance. |
§ 4 | Seller guarantees |
4.1 |
The Seller declares to the Purchaser in the form of independent representations and warranties in accordance with § 311 Para. 1 German Civil Code |
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(BGB) and in accordance with §§ 9 and 12 as well as the remaining provisions of this Contract that the statements in accordance with § 4.2 to § 4.13 (together the Seller guarantees , individually a Seller guarantee ) are complete and relevant on the date this contract is certified ( Date of signature ). The Parties are in agreement that the Seller guarantees represent neither specification agreements within the meaning of § 434 Para. 1 BGB nor guarantees for the quality of the item within the meaning of §§ 443, 444 BGB. Knowledge of the Seller within the meaning of this Contract covers only the actual knowledge of the Seller on the Date of signature and such circumstances which the Seller should have known applying reasonable diligence. |
4.2 | Circumstances under company law and entitlement of the Seller |
The MWT-Company share was issued effectively and the deposits made in this respect to the registered capital have been paid in full and have not been repaid. The MWT-Company share is free from any encumbrances and other rights of a third party. There are no rights of first refusal, options or voting rights agreements in existence with regard to the MWT-Company share, unless such rights arise from statutory provisions, the articles of association of MWT or comparable documents. The Seller has the right to dispose freely of the MWT-Company share, without infringing any rights of a third party in doing so.
4.3 | Insolvency |
According to the Knowledge of the Seller, there are no circumstances in existence which make the application for the initiation of insolvency or comparable proceedings by MWT necessary.
4.4 | Annual accounts |
The Seller has handed over to the Purchaser the annual accounts of MWT for the 2012 and 2013 financial years and with an interim account for the period from January 1 st 2014 until January 31 st , 2014, in each case consisting of balance sheet, profit and loss statement and breakdown of accounts (the Annual accounts ). The Annual accounts were compiled in accordance with the principles of proper accounting (GoB) in accordance with the German Commercial Code (HGB) and provide an image of the asset, financial and profit situation of MWT corresponding to the actual circumstances in accordance with all the major points of view. A report of independent accountants (Wirtschaftsprüfertestat) does not exist. According to the certificate of Steuerberatungsgesellschaft Dill the bookkeeping and the inventory were examined for their plausibility. No circumstances have been identified which
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contradict the balance sheets. The Purchaser is aware of the fact and has requested that the pension liability of MWT towards the Seller was transferred to the Seller. The Seller is moreover aware of the profit distribution in the amount of [1.075.961,36] EURO in January 2014 from the accrued profits of MWT in 2013.
4.5 | Taxes |
MWT has submitted all tax returns up to the Reference date (taking account of any deadline extensions granted by a tax authority) within the deadlines. Any taxes due have been paid by MWT by the Reference date or corresponding provisions have been created in the annual accounts. Taxes within the meaning of this Contract are all the taxes levied by a responsible national Federal, Federal State or municipal authority or a corresponding foreign authority (hereinafter referred to as Tax authority(ies) within the meaning of § 3 Para. 1 and 3 General Tax Code (AO) or corresponding regulations under foreign law, plus any duties or charges ancillary to taxes (e.g. interest, costs, surtaxes) within the meaning of § 3 Para. 4 AO or corresponding regulations under foreign law as well as contingent liabilities for the above-mentioned taxes.
4.6 | Property |
MWT does not own any property. Appendix 4.6 contains a list of the plots of land rented or leased by MWT.
4.7 | Assets |
According to the Knowledge of the Seller, MWT is the legal owner or user of the asset items listed in the annual accounts. After the balance sheet reference date January 31 st 2014 no material assets have been sold. According to the Knowledge of the Seller, the items of fixed assets and short-term assets owned by MWT or used by the latter on the Date of signature are sufficient and in such a useable condition that the business activity of MWT can be continued in the same manner as on the balance sheet reference date January 31st 2014.
4.8 | Securities |
According to the Knowledge of the Seller, the items of fixed assets and short-term assets owned by MWT or lawfully used by the latter on the Date of signature are free of encumbrances and other rights of a third party, with the exception of
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a) | reservations of title, contractual or statutory liens and other security interests, which were justified as part of the normal course of business; |
b) | security interests, which banks or other lenders had been granted as security for financial liabilities, which are shown in the Annual accounts or do not have to be shown there or have been entered into as part of the normal course of business; |
The performance guarantees N-15905-13, N1585213 and N-15906-13 towards the customer CONSUMAR S.A. were pointed out to the Purchaser and the Purchaser is aware of the latter.
4.9 | Intellectual property rights |
Appendix 4.9 contains a list of the patents, trademarks and other registered industrial property rights which are important for the business operations of MWT and which are owned by MWT or licensed to the latter. Such IP Rights are together with the non-patentable know-how sufficient in order to maintain the business of MWT after Date of signature. To the knowledge of the Seller the business of MWT does not infringe third party rights. No have such infringements been notified towards MWT and/or the Seller.
4.10 | Matters under employment law |
Appendix 4.10 contains a list of all employees employed by MWT on the Date of signature. The employment relationship between MWT and the wife of the Seller was ended before the certification of this Contract by mutual agreement. MWT has no workers council and is not tied to collective work agreements, according to the Knowledge of the Seller. MWT has complied with all obligations under such agreements, including but not limited to, obligations towards social security and other institutions. MWT has not granted any bonuses or other benefits relating to the transaction contemplated herein which constitute obligations of MWT.
There are no pension obligations towards current and former employees or manager in MWT.
4.11 | Insurance policies |
Appendix 4.11 contains a list of the main property and liability insurances policies concluded in favour of MWT. All the insurance premiums due by the date of signature have been paid correctly.
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4.12 | Legal disputes |
According to the Knowledge of the Seller, there are no pending court proceedings, arbitration proceedings or administrative proceedings, in which MWT is involved. Moreover, no such disputes have been notified towards MWT and/or the Seller.
4.13 | Continuation of business |
Insofar as nothing to the contrary arises from Appendix 4.13, the business operations of MWT has been continued in the same manner as before from the start of the current financial year until the Date of signature as part of the normal course of business. In particular, the agreements as disclosed during the due diligence have neither been modified nor terminated unless disclosed in Appendix 4.13, Appendix 6.2. or the balance sheet as of January 31, 2014.
4.14 | Miscellaneous |
MWT does at the date of signing not have any liabilities from drawn credit facilities towards credit institutions, and/or financial liabilities towards third parties and/or shareholder; however with the following exception:
a) | obligations indicated in the balance sheet as of January 31, 2014; |
b) | obligations from ongoing contractual relations as defined in Appendix 4.14 which can according to the principles laid down in § 4.4 not be included therein, |
c) | other obligations stemming from the usual course of business (especially VAT and wage tax) |
According to the knowledge of the Seller, there were no extraordinary occurrences or accidents which are likely to cause environmental contamination during the last 5 years.
The documents disclosed within the due diligence (§ 6.2) are accurate and give an accurate overview of MWT in all material aspects.
As of the date of signing there are no warranty claims being made against MWT nor have such claims to the knowledge of the Seller been notified.
MWT has up to the date of signing complied with all obligations under running agreements, in particular but not limited to, agreements on sale and purchase. To the knowledge of the Seller there are also no breaches of such agreements threatening.
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MWT is not party to an agreement with a broker or agent concerning the sale of its shares.
4.15 | No further representations and warranties of the Seller |
The Purchaser expressly recognises that it is acquiring the MWT-Company share and therefore MWT and its business activity in the condition in which it was found on the Date of signature after its own investigation and assessment of all the circumstances and the purchase is made on the basis of its own decision, investigation and assessment, without applying any express or implied assurances, warranties or guarantees of the Seller, which go beyond the Seller guarantees provided expressly by the Seller or that deviate from the latter. The Purchaser accepts in particular that the Seller is not providing any express or implied representations and warranties, assurances or other undertakings of support regarding
a) | forecasts, estimates or budgets about future earnings, profit, cash flows, the future financial situation or the future business operations of MWT made accessible to the Purchaser; |
b) | other information or documents, which have been made accessible to the Purchaser, its lawyers, auditors or other advisors with regard to MWT and/or its business activity, including business plans, estimates and calculations, unless something to the contrary expressly arises from this Contract; |
c) | environmental issues other than those as specified in Sec. 4.14 hereto; |
d) | tax matters with the exception of the Seller guarantee in § 4.5 (Taxes). |
§ 5 | Legal consequences in the event of infringement of the Seller guarantees |
5.1 | In the event of an infringement of a Seller guarantee by the Seller, the Seller must place the Purchaser, or, if it chooses MWT, in the position it would have been in, if the Seller guarantee had not been infringed (restitution in kind). If the Seller does not undertake restitution in kind within three (3) months after the Purchaser has informed the Seller of the infringement of the representations and warranties, the Purchaser can request monetary compensation. The compensation will cover only direct losses that have occurred. The assertion of internal administrative or general expenses, consequential losses, loss of profit or objections that the Purchase price was calculated on the basis of incorrect assumptions, is ruled out. |
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5.2 | In the event of an actual or possible infringement of a Seller guarantee, the Purchaser is obliged to inform the Seller immediately in writing on becoming aware of the actual or possible infringement with a precise description of the circumstances on which the latter is based, and insofar as this is possible, to indicate the estimated value of the claim. The Seller is also to be given an opportunity to rectify the infringement within the period mentioned in § 5.1. |
5.3 | Should claims or demands be asserted by a third party against the Purchaser or MWT, which could trigger a guarantee claim, the following rules will apply: |
a) | The Purchaser is obliged to inform the Seller of this immediately in writing and to send him copies of the correspondence with the third party on this matter as well as all the documents related to the deadline. |
b) | The Seller is to be given sufficient opportunity to ward off such claims or demands for the Purchaser or MWT. |
c) | The Seller is entitled to participate in any negotiations and correspondence with the third party. The Purchaser and MWT are obliged to work together with the Seller without any restrictions when warding off claims of a third party, to give the Seller and the latters representatives (including advisors) access to all business documentation and documents as well as permit the Seller and its representatives to involve the management, employees and representatives of the Purchaser and MWT in consultations. |
d) | The Purchaser and MWT are under no circumstances authorised to recognise claims, reach a compromise or approve recognition or a compromise settlement without the prior written consent of the Seller, insofar as these claims could lead to liability of the Seller in accordance with this Contract. |
e) | The Seller is entitled to undertake any court deliberations or conclude out-of-court settlements after agreement with the Purchaser. The Seller and the Purchaser are obliged in each case to undertake these deliberations in good faith and when doing so take appropriate consideration of the interests of the other Party. |
5.4 | Payments by the Seller in accordance with this Contract are to be considered as a decrease in the Purchase price in the ratio between the Purchaser and Seller. |
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§ 6 | Exclusion and limitation of liability of the Seller |
6.1 | No double consideration |
A claim of the Purchaser arising from or in connection with this Contract is ruled out in, if and to the extent that
a) | the facts on which the claim is based is taken into consideration in the Annual accounts; or |
c) | the facts on which the claim is based forms the basis of an enforcable claim of the Purchaser or MWT against a third party, including insurance companies; or |
d) | provisions in the annual accounts can be reversed, an appreciation in value of depreciated assets can take place or claims of debtors; or |
e) | the claim is based on (i) an amendment to legislation, a statutory regulation, articles of association, an administrative provision, a judgment, resolution, decision, approval, decree or other (administrative) deed or other legal provision taking place after the reference date or (ii) an increase in tax. |
6.2 | No liability in the event of knowledge or expected knowledge |
The Purchaser is not entitled to assert claims arising from or in connection with this Contract insofar as it had knowledge or should have had knowledge of the facts or circumstances on which they are based (negligent ignorance). The Knowledge of the management of the Purchaser, its advisors and those employees who were entrusted with the Due Diligence in preparation of this Contract or with the negotiations and the conclusion of this Contract, will be attributed to the Purchaser. The Purchaser had the opportunity before the Date of signature to investigate MWT as well as the relevant business activities from a commercial, financial and legal perspective. In doing so, it had the opportunity in particular to examine the documents listed in Appendix 6.2 (the Information disclosed ). Facts and circumstances, which arise from the Information disclosed or which are described in this Contract or its appendices or were disclosed to the Purchaser in another manner during the Due Diligence or in the course of the negotiations for this Contract, are considered to be known by the Purchaser.
6.3 | Allowable deduction; total allowable deduction |
The Purchaser is entitled to assert claims from this Contract only insofar as in an individual case the claim exceeds EUR 25,000.00 (the Allowable
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deduction ) and the total of all such individual claims exceeds EUR 50,000.00 (the Total allowable deduction ), whereby claims under the Allowable deduction are not taken into consideration. If the Total allowable deduction is exceeded, the Seller is liable for the damage exceeding the Allowable deduction or the Total allowable deduction as the case may be.
6.4 | Maximum amount of liability |
The liability of the Seller for claims arising from or in connection with this Contract including all claims owing to infringement of the Seller guarantees is limited to a total of fifty (50) per cent of the Purchase price (the Maximum amount of liability ). The Maximum amount of liability is not applicable to an infringement of the Seller guarantee in accordance with § 4.2 (circumstances under company law and entitlement of the Seller); in this case the liability of the Seller is limited overall to an amount equal to the Purchase price.
6.5 | Limitation period |
All the claims of the Purchaser against the Seller arising from this Contract will expire at the end of twenty-four (24) months after the Date of signature. Notwithstanding the foregoing, the limitation period for any tax related liability (§ 4.5) due to a breach of the representations and warranties shall amount to five (5) years starting on the date of signing.
6.6 | Exclusion of other legal consequences |
The Parties are in agreement that this Contract conclusively regulates the legal consequences of an infringement of a Seller guarantee as well as the treatment of liabilities under tax law and the Purchaser is entitled only to the claims regulated in this Contract with the legal consequences stipulated in this Contract owing to an infringement of a Seller guarantee and in relation to any liabilities under tax law. Insofar as it is permissible in law, all the claims and rights of the Purchaser exceeding the claims and rights regulated in this Contract are expressly ruled out regardless of their origin, their scope and their legal basis. This applies in particular to claims owing to pre-contractual infringement of an obligation (§§ 311 Para. 2 and 3, 241 Para. 2 BGB) (culpa in contrahendo), infringement of an obligation from the contractual obligation (in particular in accordance with §§ 280, 282, 241 BGB), a disruption or discontinuation of the basis of the transaction (§ 313 BGB), owing to statutory warranty provisions (in particular in accordance with §§ 437 to 441, 453 BGB) and offences as well as for all other claims, which might result in a withdrawal, a challenge or reduction or for other reasons could lead to the termination, ineffectiveness or recession of this Contract, an amendment
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to its content or a repayment of or reduction in the Purchase price, unless the claim is based on an intentional action by the Seller malicious deceit by the latter.
6.7 | Offsetting of advantages; no double relief |
In case any circumstance which gives grounds for a claim of the Purchaser in accordance with this contract directly causes a benefit on the side of MWT, the respective amount shall mitigate the damage being subject of the Claim. If the Seller has undertaken restitution in kind or paid compensation owing to a circumstance, the assertion of further contractual or statutory claims for the same circumstance is ruled out.
6.8 | Contributory negligence |
§ 254 BGB remains unaffected. The Purchaser is obliged in particular to ward off the occurrence of losses and to limit the scope of losses that have arisen.
6.9 | Liability for intent and malicious deceit |
The liability of the Seller for its own intentional negligent conduct and malicious deceit remains unaffected.
§ 7 | Purchaser guarantees |
7.1 | The Purchaser guarantees in the form of independent representations and warranties in accordance with § 311 Para. 1 BGB, that the following statements (the Purchaser guarantees , a Purchaser guarantee ) are complete and correct on the Date of signature. The Parties are in agreement that the purchaser guarantees represent neither specification agreements within the meaning of § 434 Para. 1 BGB nor guarantees for the quality of the item within the meaning of §§ 443, 444 BGB. : |
a) | The Purchaser was established correctly in accordance with the statutory provisions applicable to it and exists effectively. It has the necessary powers under company law in order to be the owner of its assets and to carry out its business operations. |
b) | The Purchaser is authorised without any restrictions to conclude and implement this Contract and the legal transactions envisaged in accordance with it. It possesses all the authorisations required for the conclusion and implementation of this Contract and the legal transactions envisaged in accordance with the latter. |
c) |
The conclusion and implementation and implementation of this Contract infringe neither the articles of association nor the internal rules |
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of procedure of the Purchaser nor the legal provisions binding the Purchaser, court or official decisions, orders, instructions or other binding regulations. There are no lawsuits, investigations, proceedings or other measures threatened or pending before a court, other public authority or an arbitration court against the Purchaser, which might lead to or are intended to hinder, delay or amend the implementation of this Contract. |
d) | On the basis of the Due Diligence undertaken, the Purchaser is not aware of any facts or circumstances which might give rise to the occurrence of claims against the Seller unless otherwise specifically set forth herein (e.g.in Sec. 8.3). Moreover, this Guarantee shall not release the Seller from any of the Sellers Guarantees as granted in this Agreement. |
e) | The Purchaser possesses sufficient, immediately available funds or binding agreements to provide funds in order to satisfy all the payment obligations arising out of or in connection with this Contract on the due date. |
7.2If the Purchaser infringes a Purchaser guarantee, it is obliged to release the Seller from all the losses arising from this. Claims of the Seller in this respect expire two (2) years after the Date of signature.
§ 8 | Further obligations of the Parties |
8.1 | The Purchaser vouches that after the Date of signature the Seller and its representatives will be granted access to |
a) | all the information required to prepare the tax returns to be submitted by the Seller and for the implementation of notified or on-going tax assessments or other administrative or court proceedings; |
b) | all the information, which the Seller requires in order to verify the existence of any claims, which the Purchaser, MWT or a company associated with the Purchaser arising from or in connection with this Contract; |
c) | all other financial or business information, which the Seller can request in order to satisfy the information requirements of administrative authorities and public bodies, which refer to facts of the case up to and including the Date of signature. |
8.2 |
The Purchaser is obliged to ensure that the accounting records of MWT and all other information are kept for a period of (10) years as of the Date of signature |
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and that the Seller is granted access to an appropriate extent to and/or provided with copies of the above-mentioned documentation. |
8.3 | As the Purchaser does not want to take over the pension benefit of MWT in favour of the Seller, the pension benefit was dissolved as of January 31, 2014 against a single payment. The respective accruals in the balance sheet of MWT have been dissolved, too. The underlying insurance contract has been transferred to the Seller. The wage tax relating to the pension is indicated as account payable in the balance sheet as of January 31, 2014. The respective amounts remains with MWT. The Purchaser is familiar with this and undertakes to support the Seller to the best of its ability in all the measures required in connection with the assignment of the pension contracts after the Date to signature as well as not to undertake any actions which would have an adverse effect on the assignment of the pension contracts. The Seller will not claim any entitlement arising out of these pension contracts against MWT. Accordingly, the Seller hereby indemnifies and holds harmless MWT and/or the Purchaser from any and all liabilities arising from such transfer and/or the cancellation of the accrual. |
8.4 | The Seller will resign from his office as Managing Director of MWT immediately after certification of this Contract (subject to the condition precedent of receipt of the Purchase price). The Seller hereby confirms that he is no longer entitled to any payment claims from his previous management responsibility towards MWT. The Purchaser undertakes to grant the Seller full discharge at the next ordinary Shareholders Meeting. |
8.5 | Notwithstanding the above, the Seller will be available for MWT as an external consultant until December 31 st 2014 on the basis of the consultancy agreement enclosed herewith as Appendix 8.5. |
8.6 | The Seller agrees moreover to refrain from any activity (directly or indirectly) for any other company including a participation in such company that is also active in the field of business as described in lit. A) of the preamble in Germany, Morocco and Slovenia. This shall not apply to an acquisition of up to 5% of the shares in other companies. The grant of this obligation not to compete has also been taken into consideration in the calculation of the purchase price as set forth in Sec. 3.1 above |
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§ 9 | Confidentiality and press releases |
9.1 | Confidentiality; disclosure; return of documentation |
The Parties undertake to maintain the strictest confidence regarding the content of this Contract, the circumstances of its negotiation, its conclusion and its implementation as well as all the information obtained in this connection via the other Party and companies associated with the latter, as well as effectively protect this from access by a third party. Facts, which are publicly known or become public knowledge without an infringement of this obligation or whose disclosure is prescribed by legislation or capital market-related regulations are not covered by the above-mentioned obligation. In such a case the Parties are however obliged to inform the other Party immediately after the disclosure unless the information did not become public knowledge due to the publication and to limit the disclosure to the minimum required by law or the official order.
9.2 | Transmission of information |
The Parties are entitled to make protected information accessible to companies associated with them at the relevant time within the meaning of § 15 Stock Corporation Act (AktG) as well as to third parties, insofar as this is required for the implementation of this Contract and the legal transactions agreed therein or to maintain their justified interests. Before such a transmission of information the Parties are obliged to obtain a written undertaking from the recipients of the information that they will maintain confidentiality.
9.3 | Press releases |
The Parties will agree on the form and content of every press releases or similar voluntary announcements on this Contract, its conclusion and its implementation before the publication of the latter. Insofar as publications are prescribed by law or capital market-related regulations, the Parties will attempt to obtain prior agreement. This shall not apply to potential stock-market related communications by the listed parent company of the Purchaser in the US.
§ 10 | Transaction taxes and costs |
10.1 | Transaction taxes and costs |
All transaction taxesand other taxes incurred on the basis of the conclusion and implementation of this Contract, the costs of certification of this Contract by a notary as well as all other fees and charges, which are incurred on
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the basis of the conclusion or implementation of this Contract, will be borne by the Purchaser.
10.2 | Advisor costs |
As for the rest, each Party will bear its own costs and expenses in connection with the preparation, negotiation and implementation of this Contract, including the fees, costs and expenses of its relevant advisors.
§ 11 | Assignment and transfer of rights and obligations |
Rights and obligations arising from this Contract cannot be assigned or transferred in full or in part without the prior written consent of the other Party.
§ 12 | Notifications |
12.1 | Form of the notifications |
All declarations and notifications on legal transactions (together Notifications , one Notification ) in connection with this Contract require the written form, insofar as certification by a notary or another form is not prescribed by mandatory rules. Transmission by fax or an exchange of letters is sufficient for the written form, but not any other form of transmission by telecommunications. The electronic form (e.g. e-mail) does not replace the written form.
12.2 | Notifications to the Seller |
All the notifications to the Seller in connection with this Contract are to be sent to:
Reinhard Schulze
Seitensteinerstr. 9, 56477 Rennerod.
as well as to his advisors for information:
Graf von Westphalen Rechtsanwälte Steuerberater Partnerschaft
Eric Messenzehl
Ulmenstr. 23-25, 60325 Frankfurt am Main.
12.3 | Notifications to the Purchaser |
All the notifications to the Purchaser in connection with this contract are to be sent to:
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ExOne GmbH
Rainer Höchsmann (GF)
Am Mittleren Moos 41, 86176 Augsburg
With a copy to:
ExOne Company
JoEllen Dillon (Chief Legal Officer and Corporate Secretary)
127 Industry Blvd., North Huntingdon, PA 1564 USA.
as well as to its advisors for information:
Schmitz Knoth Rechtsanwälte
Dr. Guido Plassmeier
Bertha-von-Suttner Platz 2-4, 53111 Bonn
12.4 | Changes of address |
The Parties must inform the other Party and the advisors immediately in writing of changes to the above-mentioned addresses. The previous address is considered valid until receipt of this notification.
12.5 | Notifications to advisors |
Receipt of notifications in connection with this Contract by the advisors of the Parties does not give grounds for or replace receipt of the notifications by the Parties themselves. It is irrelevant for receipt of a notification by one Party whether the notification is also received by the advisor of this Party or the certifying notary (for information purposes) and namely irrespective of whether this Contract envisages a notification to the relevant advisor or the certifying notary for information purposes in an individual case.
§ 13 | Miscellaneous |
13.1 | Law to be applied |
This Contract is subject to German law. The Vienna UN Convention on Contracts for the International Sale of Goods (CISG) is not applicable.
13.2 | Place of jurisdiction |
The exclusive place of jurisdiction for any disputes between the Parties arising from or in connection with this Contract and its implementation, including its appendices, is Frankfurt am Main.
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13.3 | Bank working day |
Bank working day within the meaning of this Contract is a day (with the exception of Saturdays and Sundays) on which the banks in Frankfurt am Main are open for business transactions.
13.4 | Interest |
Interest is to be charged on all the payments under this Contract from the start of the day after the due date up to and including the date of the payment. The interest rate totals five (5) percentage points above the European Interbank interest rate for assets in euros with interest periods of one (1) month, which is indicated on the corresponding pages of the Reuters Service at 11 am CET on the first bank working day of the month in which the interest charge in accordance with Clause 1 begins (EURIBOR). The accrued interest is to be calculated on the basis of one year of three hundred and sixty (360) days with twelve (12) months of thirty (30) days each. The assertion of interest on arrears and further damage caused by delayed performance are not ruled out.
13.5 | Amendments to the Contract |
Amendments, supplements or the cancellation of this Contract, including the amendment of this provision itself, require the written form, insofar as a stricter form is not required in accordance with mandatory rules (e.g. certification by a notary). § 12.1 Clause 2 applies accordingly.
13.6 | Headings; references to paragraphs |
The headings of paragraphs, sections and appendices in this Contract are solely for purposes of clarity. They are not to be taken into account in the interpretation of the Contract. References in this Contract to paragraphs without indicating a law or contract mean paragraphs of this Contract.
13.7 | Appendices |
All the appendices are a components of this Contract. The appendices 2.3, 4.6, 4.9, 4.10, 4.11, 4.13, 4.14 and 6.2 were reviewed by the Parties. They confirmed that they had not to be read out loud.
Appendix 8.5 was read out loud.
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13.8 | Overall agreement |
This Contract contains all the agreements of the Parties in relation to the subject of the contract and replaces any verbal or written negotiations, agreements, and understandings, which have been concluded previously between the Parties with regard to the subject of the contract. There are no ancillary agreements to this Contract.
13.9 | Severability clause |
Should a provision of this Contract be or become void, ineffective or unenforceable in full or in part, it will not affect the effectiveness and enforceability of all the remaining provisions. The void, ineffective or unenforceable provision is to be considered replaced, insofar as this is permissible in law, by the effective and enforceable provision, which is as close as possible to the economic purpose of the void, ineffective or unenforceable provision, in terms of subject, extent, time, place and area of validity. This also applies to filling any loopholes in this Contract.
13.10 | Language |
If a document has been made in two languages, the German version shall prevail. The English text is not part of this deed and just a translation for convenience.
§ 14 | Copies |
One version of this deed will be given to:
| the persons named in § 12.2 and § 12.3, |
| die company MWT Gesellschaft für Industrielle Mikrowellentechnik mbH, |
| The tax authorities according to § 54 EStDV. |
§ 15 | Notes |
The notary advised the parties especially that:
| the purchaser is responsible for the payment of the share capital in case it has not been paid yet by the Seller. |
| The Seller remains liable for the for the payment of the share capital which has not been paid yet, |
| despite the sale of the shares any rights and obligations of the company remain unchanged.; |
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| for the validity of the transfer of shares in relation to the company the companies register has to amended accordingly; |
| under the condition of § 16 sec. (3) GmbHG an acquisition of shares in good faith from a person not entitled to do so is possible if the entitlement is laid down in and visible from the companies register; |
| the notary did not advice the Parties on tax issues. The same was not requested as they were advised by their tax advisors. |
*.*.*.*.*
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Exhibit 99.1
127 Industry Boulevard N. Huntingdon, PA 15642 (724) 863.9663
FOR IMMEDIATE RELEASE
ExOne Announces Acquisitions
| Acquired MWT to integrate industrial grade microwave process with 3D sand casting capability |
| Acquired assets of Machin-A-Mation, a specialty precision machining operation |
NORTH HUNTINGDON, PA, March 6, 2014 The ExOne Company (NASDAQ: XONE) (ExOne or the Company), a global provider of three-dimensional (3D) printing machines and printed products to industrial customers, announced that it has acquired two operations in support of its strategy to broaden its post-print processing capabilities.
David Burns, President and Chief Operating Officer of ExOne commented, We believe that vertically integrating the processes surrounding additive manufacturing will help to accelerate the adoption cycle for 3D printing in the industrial market place. These acquisitions represent critical post-print processes that are components of the 3D printing value chain.
ExOne has developed unique materials and processes for its customers to target improvements in the Companys sand core production systems. With the acquisition of MWT - Gesellschaft für Industrielle Mikrowellentechnik mbH (MWT), a pioneer in industrial grade microwaves with leading design and manufacturing experience, ExOne has enhanced its position as the market leader of 3D sand production systems for industry.
Industrial grade microwaves are used for thermally processing certain sand molds or cores that are 3D printed using binders, such as the more environmentally-benign phenolic binder that requires a drying process. Importantly, microwave technology improves casting quality and reduces production costs for customers in specific industries, such as magnesium parts for aviation and steel alloy parts for hydraulic components.
ExOne acquired MWT for approximately $4.8 million in cash as part of the Companys vertical integration strategy. Based in Elz, Germany, MWT designs and manufactures equipment that is currently employed in ExOnes production service center (PSC) operations. ExOne also plans to offer this technology to customers in future system sales. MWTs microwave operation will be operationally integrated with the Companys Augsburg, Germany manufacturing operations.
The Company also acquired the assets of Machin-A-Mation, a specialty machine shop located in Chesterfield, Michigan, for approximately $5.0 million. Machin-A-Mations capabilities fit well within ExOnes ExCast strategy, which is focused on each element of the additive manufacturing process from design to finish of complex parts for industrial customers. The Machin-A-Mation business will remain in its current Michigan location, complementing the Companys nearby PSC in Troy, Michigan. This PSC focuses on advanced 3D printed cores and molds for the aerospace and shipbuilding industries. In addition, ExOne expects to continue to serve and expand the existing Machin-A-Mation industrial customer base.
Mr. Burns continued, In the manufacture of precision parts, there are several steps to completion. Machin-A-Mations specialty precision machining expertise helps us address the
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ExOne Announces Acquisitions
March 6, 2014
Page 2 of 2
finishing requirements for complex parts which are cast from our 3D printed sand molds. The addition of the capabilities of both MWT and Machin-A-Mation enable us to better satisfy the needs of our growing industrial customer base in a more comprehensive manner.
About ExOne
ExOne is a global provider of 3D printing machines and printed products, materials and other services to industrial customers. ExOnes business primarily consists of manufacturing and selling 3D printing machines and printing products to specification for its customers using its in-house 3D printing machines. ExOne offers pre-production collaboration and print products for customers through its seven PSCs, which are located in the United States, Germany and Japan. ExOne builds 3D printing machines at its facilities in the United States and Germany. ExOne also supplies the associated materials, including consumables and replacement parts, and other services, including training and technical support, necessary for purchasers of its machines to print products.
Safe Harbor Regarding Forward Looking Statements
This news release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended.
Forward-looking statements are subject to risks, uncertainties and assumptions and are identified by words such as expects, estimates, projects, typically, anticipates, believes, appears, could, plan, and other similar words. Such statements include, but are not limited to, statements concerning future revenue and earnings, involve known and unknown risks, uncertainties and other factors that could cause the actual results of the Company to differ materially from the results expressed or implied by such statements, which include our ability to qualify more materials in which we can print; the availability of skilled personnel; the impact of increased operating expenses and expenses relating to proposed acquisitions, investments and alliances; our strategy, including the expansion and growth of our operations; the impact of loss of key management; our plans regarding increased international operations in additional international locations; sufficiency of funds for required capital expenditures, working capital, and debt service; the adequacy of sources of liquidity; expectations regarding demand for our industrial products, operating revenues, operating and maintenance expenses, insurance expenses and deductibles, interest expenses, debt levels, and other matters with regard to outlook; demand for aerospace, automotive, heavy equipment, energy/oil/gas and other industrial products; the scope, nature or impact of acquisitions, alliances and strategic investments and our ability to integrate acquisitions and strategic investments; liabilities under laws and regulations protecting the environment; the impact of governmental laws and regulations; operating hazards, war, terrorism and cancellation or unavailability of insurance coverage; the effect of litigation and contingencies; the impact of disruption of our manufacturing facilities or PSCs; the adequacy of our protection of our intellectual property; material weaknesses in our internal control over financial reporting and other factors disclosed in the Companys Annual Report on Form 10-K and other periodic reports filed with the Securities and Exchange Commission. Because they are forward-looking, these statements should be evaluated in light of important risk factors and uncertainties.
Should one or more of these risks or uncertainties materialize, or should any of ExOnes underlying assumptions prove incorrect, actual results may vary materially from those currently anticipated. The Company disclaims any obligation to update or publicly announce any revisions to any of the forward-looking statements contained in this news release.
For more information, contact:
Brian Smith | Deborah K. Pawlowski/Karen L. Howard | |
Chief Financial Officer | Kei Advisors LLC | |
(724) 765-1350 | (716) 843-3908 /(716) 843-3942 | |
brian.smith@exone.com | dpawlowski@keiadvisors.com / khoward@keiadvisors.com |
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