EXHIBIT 10.73
ASSET PURCHASE AGREEMENT
This Agreement is made and entered into on May 11, 2000, by and between
Spectra Precision AB, reg. no. 556239-9305, a corporation organized and
existing under the laws of Sweden (hereinafter referred to as the "Seller"),
and
Trimble Acquisition Corp., a corporation organized and existing under
the laws of Delaware (hereinafter referred to as the "Purchaser"), on the
other hand.
WHEREAS, the Seller, directly and through certain of its subsidiaries,
is engaged in the business of laser-based and sonic-based
instrumentation surveying systems for the construction,
agricultural and surveying industries in various countries
(which activities, as currently conducted by the Seller and
its subsidiaries, are hereinafter referred to as the
"Business"); and
WHEREAS, the Seller wishes to sell to the Purchaser, and the Purchaser
wishes to purchase from the Seller, the Business, including,
without limitation, all right, title and interest of the
Seller in and to the property and assets of the Business, and
in connection therewith the Purchaser is willing to assume
certain liabilities of the Seller relating thereto, all upon
the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Purchaser
and the Seller hereby agree as follows:
1. STOCK AND ASSET PURCHASE AGREEMENT
Capitalized terms used herein and not otherwise defined shall have the
meaning given to them in the Stock and Asset Purchase Agreement
dated May 11, 2000 between Spectra Physics Holdings USA, Inc.,
Spectra Precision AB and Spectra Precision Europe Holdings BV,
and Trimble Acquisition Corp. (the "Stock and Asset Purchase
Agreement"). Subject to the terms and conditions contained in
this Agreement and in the Stock and Asset Purchase Agreement (i)
the Seller agrees to sell, assign, transfer and deliver to the
Purchaser all of the
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Seller's right, title and interest in and to each of the SPAB
Assets (as defined below), and Purchaser agrees to purchase such
assets on the Closing Date and (ii) Purchaser agrees to assume
the Assumed Liabilities (as defined below) on the Closing Date.
2. ASSETS TO BE ACQUIRED
At the Closing, the Seller hereby agrees to sell to the Purchaser, or
to an Affiliate of Purchaser designated by Purchaser, and the
Purchaser, or such Affiliate designated by the Purchaser, hereby
agrees to acquire from the Seller, free and clear of Encumbrances
(other than (i) as disclosed in Schedules 3.11, 3.12, 3.16(b) and
3.19 of the Disclosure Schedules and (ii) Permitted Encumbrances),
the following assets and rights of the Seller used exclusively or
primarily in the Business (hereinafter jointly referred to as the
"SPAB Assets"):
(a) Fixed Assets
The machinery, vehicles and fixed assets of the Seller set
forth in Exhibit 2(a).
(b) Inventory etc.
All of the Seller's inventory, work in progress, demo stock
and rental inventory set forth in Exhibit 2(b).
(c) Assets in Possession of Third Parties
All of the Seller's tools and moduls that are in possession
of third parties, which tools and moduls, as well as the
third parties in whose possession they are, are listed in
Exhibit 2(c).
(d) Contracts
All rights and benefits of the Seller under the sale and
purchase orders and the agreements set forth in Exhibit 2(d)
(hereinafter jointly referred to as the "Assumed
Contracts").
(e) Intellectual Property Rights
(i) The Seller's entire right, title and interest in
and to the patents and patent applications set
forth in Exhibit 2(e)(i) (the "Patents"),
(ii) the Seller's entire right, title and interest in and
to the trademarks set forth in Exhibit 2(e)(ii)
(the "Trademarks"),
(iii) all rights and obligations of the Seller
under the license agreements attached hereto as
Exhibit 2(e)(iii), (the "Licenses"); and
(iv) all rights of the Seller to the domain name
xxx.xxxxxxxxxxxxxxxx.xxx, and any other domain name
used in the Business and/or owned by the Seller,
other than those containing the name
"spectraphysics."
(The Assets referred to in Article 2 (e) (i)-(iv)
are jointly referred to as the "Intellectual
Property".)
(f) The Spectra Precision and the Geotronics Name
The Spectra Precision and the Geotronics names, including
all rights to use such names as trademarks, company names or
otherwise, provided, however, that the Seller shall have the
right to use the Spectra Precision name as a company name
and the Geotronics name as a secondary name for as long as
the Purchaser allows.
(g) Employees
The Purchaser shall, in accordance with Section 6b of the
Employment Protection Act (Sw. lagen 1982:80 om
anstallningsskydd), take over all rights and obligations
relating to the employment arrangements of all employees of
the Business (the "Employees") on the Closing Date, provided
that such employees do not refuse to be employed by the
Purchaser. Exhibit 2(g)(1) contains a list of all Employees,
including correct information about their salaries, pensions
and all other employment benefits. The parties agree that
Xxxxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxx, and Xxxxxxx
Xxxxxxx (jointly referred to as the "Exempted Employees")
are not Employees and that the rights and obligations
relating to the employment agreements of the Exempted
Employees, consequently, shall not be taken over by the
Purchaser.
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All costs relating to Employees who have not refused
employment with the Purchaser, including, without
limitation, those costs associated with pension and other
employee welfare benefits, shall be assumed by the Purchaser
as from the Closing Date. The Seller shall reimburse the
Purchaser with an amount corresponding to the aggregate
value of the employment benefits, including, without
limitation, any and all earned pension benefits and holiday
pay relating to the Employees, attributable to or accrued
prior to the Closing Date but not paid or exercised, which
the employees taken over by Purchaser are entitled to in
relation to the Purchaser. The Seller agrees to transfer or
sell, as the case may be, all rights it may have with
respect to non-disclosure agreements, invention agreements,
non-compete agreements and similar agreements in respect of
all Employees.
(h) Shares
All participation, interest, shares, and other securities
convertible into, exchangeable for and/or giving a right to
purchase shares, in
(i) Spectra Precision Scandinavia AB, registered in
Sweden under number 556127-3680;
(ii) Spectra Precision of Canada Ltd., registered in
Canada under number 1019 8605 7;
(iii) Spectra Precision HGmbH, registered in Austria under
number FN 100 490f; and
(iv) Spectra Precision SA, registered in France under
number RCS Evry B 78522 7422; together with
(v) the Seller's four (4) shares, and other securities
convertible into, exchangeable for and/or giving
right to purchase shares in terraSat GmbH,
registered in Germany under number 97034.
(Such companies are jointly referred to as the
"Affiliated Companies" and such shares,
participation and other securities are jointly
referred to as the "Shares")
(i) Know-how, Documentation, etc.
All know-how, records and documents of the Seller needed to
conduct or relating to the Business, including without
limitation customer lists and sales records.
To the extent available, the records and documents referred
to in the preceding paragraph shall also be provided in the
form of electronic files.
(j) Regulatory Approvals
The regulatory approvals set forth in Exhibit 2(j).
(k) Receivables
All Receivables of the Business as of the Closing.
(l) Other Assets
The transfer shall also include all other assets of the
Seller, including, without limitation, furniture, that are
used exclusively or primarily in the Business but have not
been specified herein or in the Exhibits hereto, including,
without limitation, all goodwill primarily relating to and
any of the foregoing SPAB Assets, the Assumed Contracts and
the Business, as well as additional assets which have been
supplied to the Business as of the date of this agreement
until the Closing Date or have arisen as a result of the
ordinary course of the Business during the said period.
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3. LIABILITIES TO BE ASSUMED
At the Closing, the Purchaser hereby agrees to assume all accrued
wages and benefits, trade payables, all other liabilities of the
Business, known or unknown, contingent or otherwise, including, but
not limited to warranty claims, and all accrued pension liabilities,
and all obligations of the Seller under the Assumed Contracts
(hereinafter referred to as the "Assumed Liabilities"); provided,
however, that the Purchaser does not agree to assume any liabilities
or obligations of the Seller as specified in Section 2(g) of this
Agreement.
4. VALUE ADDED TAX AND OTHER TAXES
The parties are of the opinion that the sale and purchase of the SPAB
Assets is exempt from any value added tax (Sw. mervardesskatt)
("VAT"), but to the extent any VAT or other tax is payable due to the
sale and purchase of any of the Assets, the Purchaser and the Seller
shall each pay one half of such VAT or other tax. The parties shall
co-operate in taking all reasonable measures with a view to ensure
that the sale and purchase of the SPAB Assets is exempt from VAT.
5. CERTAIN COVENANTS
(a) The Assumed Contracts
(i) The Purchaser and the Seller shall use reasonable
efforts to, as soon as possible, obtain any consents
required for the assignment of the Assumed Contracts to the
Purchaser pursuant to this Agreement.
(ii) If the counterparty to any Assumed Contract does not
give its consent to the assignment of any of the Seller's
rights and obligations under such Assumed Contract, then the
Seller shall remain a party to such Assumed Contract, but
all rights and benefits thereunder shall belong to the
Purchaser, and the Purchaser shall perform and fulfil all
the Seller's obligations thereunder. Provided that the
Purchaser performs and fulfils all such obligations, the
Seller undertakes to transfer all payments, remuneration and
other benefits obtained by the Seller under such Assumed
Contracts to the Purchaser.
(b) Customer Claims
The Purchaser shall be responsible for and rectify all
claims from customers which relate to product complaints due
to services rendered or products delivered by the Seller.
(c) Manufacturers' Warranties
To the extent permissible, the Seller will assign to the
Purchaser all manufacturers' warranties with respect to the
SPAB Assets. The Seller will assist and co-operate with the
Purchaser in the enforcement of any such warranties, and, if
necessary, will authorize the filing of suits against
persons granting such warranties with respect to the SPAB
Assets to enforce such warranties in the Seller's name for
the use and benefit of the Purchaser.
(d) The Spectra Precision and Geotronics Names
The Seller undertakes to, upon the request of the Purchaser,
change its company name so as to exclude the name "Spectra
Precision" and deregister the secondary name "Geotronics."
Further, the Seller undertakes to, at the same time, grant
all consents and take all other actions necessary to allow
the Purchaser, or an Affiliate designated by Purchaser, to
register with the Swedish Patent and Registration Office or
similar authority the name "Spectra Precision AB" as a
company name and the name "Geotronics" as a secondary name.
(e) Certain Transfers
The Seller and the Purchaser undertake to use their best
efforts, prior to the Closing Date, to agree on how the
transfer of (i) the branch offices in Dubai and Maila and
(ii) the shares in Tianjin Geotronics Instrument Co. Ltd.
Shall be effectuated.
6. MISCELLANEOUS
(a) Condition
The consummation of the transactions pursuant to this
Agreement is subject to the satisfaction on the Closing Date
of the Conditions to Closing set forth in Article VIII of
the Stock and Asset Purchase Agreement.
(b) Termination
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Should the Stock and Asset Purchase Agreement terminate for
whatever reason, this Agreement shall automatically
terminate.
(c) Assignment
This Agreement may not be assigned by operation of law or
otherwise without the express written consent of the Seller
and the Purchaser (which consent may be granted or withheld
in the sole discretion of the Seller or the Purchaser);
provided, however, that the Purchaser may assign this
Agreement and its rights hereunder, in whole or in part, to
one or more other buyers that is an Affiliate of the
Purchaser.
(d) Entire Agreement
This Agreement and the Stock and Asset Purchase Agreement
embody the entire agreement and understanding between the
parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings.
(e) Applicable Law
This Agreement shall in all respects be governed by and
construed in accordance with Swedish law as such law shall
from time to time be in force.
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This Agreement may be executed in two (2) or more copies, of which each party
has taken a copy.
Stockholm, Sweden, May ____, 2000
SPECTRA PRECISION XX XXXXXXX ACQUISITION CORP.
by:/s/ Xxxxxx Xxxxxx by: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx Xxxxxx Xxxxxx X. Xxxxxxxx
title: President title: President and CEO
by:/s/ Xxxx Xxxxxxx
-------------------
Xxxx Xxxxxxx
title: Board Member
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