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EXHIBIT 10.1(c)
AGREEMENT
Between
SIMEX AS (BUYER)
SIMEX NK/TECHNOLOGIES INC. (SX)
And
THE STOCKHOLDERS OF WELD TECH AS:
BJ0RN XXXXX (170 STOCKS)
XXXXXX XXXXXXXXX (140 STOCKS)
XXXX XXXXXX XXXXXXXXX (140 STOCKS)
XXXXX XXXXXXXXX (50 STOCKS)
(SELLER)
The following agreement has been entered into:
1. Object
1.1 The Seller will sell and the Buyer will buy 500 stocks in
Weld Tech AS (Company). The block of stock constitutes 100%
of the portfolio of shares in the Company.
1.2 The dividends on the stocks, disbursed after the entering of
this agreement, fall to the Buyer. This also applies to
dividends earmarked in the Company's statement of earnings.
2. Consideration
The consideration for the stocks ("Consideration") is NOK
1.200.000,-is as follows:
2.1 On the time of transfer of the stocks, the Buyer will pay NOK
10.000.000,-.
2.2 SX issues 450.000 stocks in SX to the Seller. The stocks will
be shared among the stockholders according to their described
portfolio of shares.
The transfer is to take place 15.12.98, at the latest.
Of these, 90.000 stocks may be realized immediately.
180.000 may not be realized until after 30. June 1999
180.000 may not be realized until after 1. January 2000.
2.3 Xxxxxx Xxxxxxxxx and Xxxx Xxxxxx Xxxxxxxxx shall have the
right to buy 200.000 options in all in SX for $ 2,75 per
option, with a redemptive deadline of 3 years. The right to
buy options must be claimed within 30.6.2000.
3. Assignment date
The stock transfer will be done with effect from 17 November 1998
(Assignment date).
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4. Settlement
4.1 The consideration, as described in item 2.1, Consideration at
stock transfer, the Buyer is to pay NOK 10.000.000,-, paid in
to the client account of lawyer Xxxx Xxxxxxxxx, account
number 3201.07.00360, on the Assignment day. The amount will
be released to the seller towards a signature of transport on
the stocks, free of encumbrances. Thereafter the amount will
be paid into the sellers' accounts.
4.2 Stocks and options issued with reference to items 2.2 and 2.3.
The stocks are to be deposited at a mutually appointed
person, to be released 1.4.99, with the amount of stocks
remaining after a possible deduction as a result of
circumstances described in item 6. The person depositing the
stocks, shall manage these in accordance with mutual
instructions, and are obliged to release these if the Buyer
has not protested within the agreed date of release, if not
by a joint written statement or subsequent to a decision with
legal force among the parties.
5. GUARANTEES FROM THE SELLER
The sellers hereby guarantees the following towards the buyer:
5.1 The Company is a validly founded legal entity, which per the
date of the agreement has performed all registration in
public registers, in accordance with decisions made by the
relevant company organs.
5.2 That the in appendix 1 presented income statements, which are
the basis of the stipulation of the consideration, are
correct and settled in accordance with the law of accounts
and generally accepted accounting principles.
5.3 That the Company per 30.9.98, were not debted or had any other
burdened economical responsibilities, beyond what appears
from the balance per the same date and this agreement with
appendixes.
5.4 That the Company's outstanding claims are recoverable for
their full amount.
5.5 That the stock has a value that is the least equivalent with
the balance sheet, and that the balance sheet does not
include items not relevant for the Company's business
management.
5.6 That the Company per 30.9.98, has not incurred the
responsibility for latent or contingent liabilities of any
kind, which may be triggered after closing.
5.7 That the Company, at the signature of the agreement, has not
performed any actions which may trigger claims from a third
party.
5.8 That all reports to the inland revenue authorities are
correct and have been performed within the fixed dates, and
that the Company per date of the closing of
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the accounts, is nor responsible for taxes and fees, fines
for neglected reporting, incomplete reporting, or errors in
previous reports to the inland revenue authorities.
5.9 That the income statement, book keeping material, fee- and
tax assessment documents are kept for the last 10 years, and
are made accessible for the Company after the share transfer.
5.10 That no claims from the Company's customers do exist, except
from those mentioned in appendix 2.
5.11 That the Company has not guaranteed or secured for the
Sellers' or any third parties contractual obligations, and
that such guarantees and securities will not be present on
the Assignment day.
5.12 That the statement in appendix 3, concerning the Company's
employees, their wages and conditions of employment is
complete and correct (also concerning pension rights, keeping
a car, telephone, lending terms, stock options and other
advantages, that there is given no promises of raise in wages
or other kinds of improvements in the conditions of
employment to the employees, and that such promises will not
be given till the day of Closing. The statement also contains
employees who have not yet entered their positions, and
persons who are discharged or dismissed with notice and have
objected or may object to this decision.
5.13 That the Company does not have any pension liabilities
towards previous employees or others, except what is stated
in appendix 3.
5.14 That the Company has not entered into agreements which entail
that any of the Company's employees are entitled to
compensation at retirement, exceeding what exists according
to the Working Environment Act.
5.15 That the Company, on the Assignment date, has the ownership
of all assets present in the balancing sheet per 30.9.98, and
that these assets will be in the possession of the Company on
Assignment day.
5.16 That Company's ownership and other rights are, and on the day
of Closing still will be, secured legal protection by
registration, or in other ways as long as this is possible
with reference to the law.
5.17 That neither of the Company's assets or rights are, or on the
day of Closing will be, mortgaged, encumbered with rights of
use, first options or other civil rights/encumbrances
exceeding what appears from this agreement with appendixes,
and that no one has received, or will receive until the day of
Closing, The Company's permission to the use of its firm or
parts of this, or the use of trademarks, patents,
prescriptions/patterns, register of customers, EDB software,
know-how or other immaterial values belonging to the Company.
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5.18 That the Seller is not acquainted with material errors or
defects on the Company's products, production factors, the
rest of the assets and premises.
5.19 That all production factors owned and used by the company,
hereunder i.e. real estate, machines, vehicles and equipment.
And all methods and processes used by the Company, satisfies
all existing laws and regulations, and that no unfulfilled
duties from the government are present, and that there are no
reason to expect such duties, and that all products which are
produced or sold by the Company, satisfies the laws and
regulations on the markets on which the Company operates.
5.20 That after 31.12.98, no damage has occurred on the Company's
assets, and no liability for damages towards a third party,
which is not fully covered by insurance, has occurred.
5.21 That appendix 4 contains a complete statement of the
Company's running and unfulfilled contracts, and that new
contracts will not be entered into until the Assignment day,
except ordinary contracts which are parts of the day-to-day
management.
5.22 That none of the Company's contracts with third party will be
terminated as a consequence of the entering into and
accomplishment of this agreement.
5.23 That the management of the Company's operations after 30.9.98
have been limited to, and until the Assignment date will be
limited to, what is normal for the Company, and that after
the mentioned date, is not or will not be purchased or
transferred material capital assets, or purchased larger
quantities of goods than what is considered proper.
5.24 That all the Company's current agreements and offers are
entered into or given on ordinary businesslike terms, that
these terms are not less favourable for the Company than the
general terms stated by the Company per 30.9.98, and that
there has not or will not be given completely or partly
gratuitous outputs from the Company after 30.9.98, and that
all agreements and offers existing on the Assignment day will
be entered into/given on ordinary businesslike terms.
5.25 That there do not exist agreements which commits or may
commit the Company to sell assets or services below market
price, or to buy above market price(i.e. options contracts).
5.26 That the Company has got the insurances stated in appendix 5,
and that these will continue to be in force on the day of
Closing.
5.27 That the company is not part in any lawsuit or other legal
disputes, including disputes about taxes and fees, and that
there are no reason to expect such lawsuits or legal disputes
because of circumstances previous to the entering into this
agreement.
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5.28 That there is not disbursed or decided any dividends, group
contribution or other completely or partly gratuitous outputs
to the stockholders or others after 30.9.98, and that such
disbursements will not be made until the day of Closing
without written approval from the Buyer.
5.29 That the transferred stock are free from encumbrances, and
that there o not exist any stockholder's agreements, and that
nobody has an option to subscribe for stocks in the Company,
or to take over own stocks owned by the Company.
5.30 That the Company's by-laws are identical with appendix 7, and
that the by-laws will not be altered until the Assignment
day.
5.31 That the Company has adequate security for supply/outputs
which are prepaid.
5.32 That the Seller has given the Buyer or his representatives
complete information about all circumstances which the Seller
is acquainted with concerning the Company, which is or may be
of material signification to the to the Company.
6. Deduction from consideration
If the facts differs from item 5,
GUARANTEES FROM THE SELLER
the Buyer may claim a price reduction, NOK by NOK, according to an
actual estimation.
6.1 A price reduction equal to the effect of the discrepancy on
the balance sheet.
6.2 In the calculation, reference shall not be made to the
estimations of the value on assets provable present, except
where the Seller has withheld information the Seller had to
understand would be of great importance in the evaluation of
the values and the decision to take over the Company.
Claims for reduction must be put forward within 30.4.99.
7. Material breach
If the breach is material, the Buyer may cancel the purchase, if it
after an overall evaluation a cancellation seems reasonable.
8. Competition clause, professional secrecy
8.1 Is regulated in separate employment contracts with Xxxxxx
Xxxxxxxxx and Xxxx Xxxxxx Xxxxxxxxx.
8.2 The Seller is obliged to keep full professional secrecy about
all information concerning the Company and subsidiaries,
which may be harmful if they become exposed to the public.
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9. Approvement by the board
This agreement is dependent upon approvement from the Seller's board.
Information about the approval from the board must be presented to the
other party within the day of Closing. The statement shall be signed
by persons with subscription rights. If such statements from both
parties do not exist within the Assignment date, none of the parties
are bound by the agreement.
10. Due diligence
10.1 The Buyer may, previous of the day of Closing, undertake a
due diligence of the company, due to a separate "due
diligence" -agreement, which today is entered into by the
Seller end the Buyer.
10.2 If the Buyer fails to carry out this within the Assignment
date, this do not imply that the guarantees given by the
Seller is annulled.
This agreement is issued in duplicate, one to each of the parties.
Stavanger, 17 November 1998
Simex AS Simex NK/Technologies Inc Xxxxx Xxxxx
Xxxxx Xxxxx (sign) Xxxxx Xxxxx (sign) (sign)
Xxxxxx Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx
(sign) (sign) (sign)
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