EXHIBIT 10.1
EXECUTION VERSION
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into this 28th day of July 2004 (the "Transfer Date"), but is effective as of
12:01 a.m. Hong Kong time on July 1, 2004 (the "Effective Date"), by and among
APPLICA INCORPORATED ("AI"), a company organized and existing under the laws of
the State of Florida, REMDALE INVESTMENTS LIMITED, a company organized and
existing under the laws of the British Virgin Islands, and PPC INDUSTRIES
LIMITED, a company organized and existing under the laws of the British Virgin
Islands (each a "Seller", and collectively, the "Sellers") and CENTRAL GOLD
WORLDWIDE LIMITED, a company organized and existing under the laws of the
British Virgin Islands (the "Buyer"). The Sellers and the Buyer are collectively
referred to herein as the "Parties", and each individually as a "Party".
RECITALS
The Sellers collectively own all of the issued and outstanding
shares of capital stock (the "Stock") of Applica Durable Manufacturing Limited
(the "Existing Name"), a company organized and existing under the laws of Hong
Kong (the "Corporation"). Schedule A hereto sets forth the respective ownership
of the Stock of each Seller.
Contemporaneously herewith, certain of the affiliates of the Sellers
are entering into a supply agreement (the "Supply Agreement") relating to the
manufacture and supply by the Buyer's affiliate to certain affiliates of the
Sellers of certain products for an initial term ending December 31, 2015 upon
the terms and conditions thereof.
The Parties desire that the Buyer acquire the Stock and the Sellers
desire to sell the Stock on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties hereto,
intending to be legally bound, mutually agree as follows:
1. SALE AND PURCHASE OF THE STOCK.
The Sellers, jointly and severally, hereby sell, convey,
transfer, and assign, upon the terms and conditions hereinafter set forth, to
the Buyer, free and clear of all liens, pledges, claims, and encumbrances of
every kind, nature and description (an "Encumbrance"), and the Buyer hereby
purchases and accepts from the Sellers, the Stock. The Sellers shall sell the
Stock accompanied by stock powers or other appropriate bills of sale, duly
endorsed or executed by the respective Seller.
2. PURCHASE PRICE.
As consideration for the Stock, the Buyer hereby agrees to pay
to the Sellers the adjusted book value of the Corporation as of the Effective
Date as set forth on Schedule B, which is derived from the books and records
normally maintained by the Corporation (the "Purchase Price"). The Purchase
Price shall be payable as follows:
(a) The inter-company receivables due to the Corporation (the
"Receivables") from the Sellers and any of their affiliates as of the Transfer
Date shall be credited against the Purchase Price (it being understood that (i)
such Receivables shall be assigned on the Transfer Date
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by the Corporation to the Sellers and (ii) any transaction after the Effective
Date shall be for the account of the Buyer (except to the extent set forth in
Section 7(e));
(b) USD 5,000,000 or the remainder of the Purchase Price
(whichever is less) in cash within ten (10) business days of the Transfer Date;
and
(c) If applicable, the Purchase Price minus the sum of clauses
(a) and (b) of this Section 2 (the "Balance") in the following manner: USD
2,000,000 of the Balance on February 1, 2005 and the remainder of the Balance on
July 1, 2005; provided, however, that to the extent the Balance is less than USD
0, the Sellers shall refund the Balance to the Buyer on February 1, 2005.
The Buyer shall have the right to review the calculation of the amount of
the Receivables. If the Buyer objects to the same, it shall notify the Sellers
no later than fifteen (15) days after the Transfer Date of its objections
together with the basis for its objections in reasonable detail. The Parties
shall thereafter negotiate in good faith to reach agreement. If the Parties are
unable to reach agreement, they shall employ the Dispute Resolution procedures
set forth in the Supply Agreement.
3. SELLERS' REPRESENTATIONS AND WARRANTIES.
To induce the Buyer to enter into this Agreement, and for the
benefit of the Buyer, the Sellers, jointly and severally, represent and warrant,
on behalf of themselves and the Corporation as follows:
(a) CORPORATE EXISTENCE AND QUALIFICATION.
The Corporation and each Seller is a corporation duly
organized and validly existing under the laws of its jurisdiction of
incorporation; and each has the requisite corporate power to own, operate,
manage, lease and hold its assets and properties and to carry on its business as
and where such assets and properties are presently located and such business is
presently conducted.
(b) CAPITALIZATION AND OWNERSHIP OF STOCK.
The authorized and issued capital of the Corporation
immediately prior to and as of the Transfer Date is as set forth on Schedule A,
all of which have been validly issued, fully paid, and non-assessable and are
owned by the Sellers as set forth on such schedule. The Sellers collectively
have good and unencumbered title to the Stock and there are no restrictions on
any of their rights to transfer the Stock to the Buyer pursuant to this
Agreement. Other than this Agreement, there are no outstanding options,
warrants, or other rights to purchase or subscribe for, or contracts or
commitments to issue, or any interests, instruments, evidences of indebtedness,
or other securities convertible in any manner into, the shares of the
Corporation's Stock.
(c) TITLE TO PROPERTIES AND ASSETS.
The Corporation has good and marketable title to all of its
real and personal assets and properties reflected in its June 30, 2004 balance
sheet (except for those assets and properties disposed of subsequent to that
date in the ordinary course of business). Such assets and properties are not
subject to any Encumbrance, except for Encumbrances for the payment of
governmental or other taxes and other Encumbrances incidental to the conduct of
the Corporation's business or the ownership of its assets or properties, which
do not in the aggregate materially detract from the value of the Corporation's
assets and properties taken as a whole or materially impair the use thereof in
the operation of its business.
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All leases pursuant to which the Corporation leases any substantial portion of
real or personal property are valid and in effect as of the date hereof in
accordance with their respective terms.
(d) AUTHORITY, APPROVAL AND ENFORCEABILITY.
This Agreement has been duly executed and delivered by each of
the Sellers, and each of them has all requisite corporate power and legal
capacity to execute and deliver this Agreement, to consummate the transactions
contemplated hereby, and to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized and approved by all appropriate
corporate action of the Sellers. This Agreement constitutes, or upon execution
and delivery will constitute, the legal, valid and binding obligation of each
Seller, enforceable against each Seller in accordance with its terms, except as
such enforceability may be limited by general equitable principles or by
applicable bankruptcy, insolvency, moratorium, or similar laws and judicial
decisions from time to time in effect which affect creditors' rights and
remedies generally.
(e) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS.
Neither the execution and delivery of this Agreement nor the
carrying out of the transactions contemplated hereby will violate or conflict
with any of the terms, conditions or provisions of the Corporation's or any
Seller's charter documents; violate any material law applicable to the
Corporation or any Seller; violate, conflict with, result in a breach of,
constitute a default under (whether with or without notice or the lapse of time
or both), or accelerate or permit the acceleration of the performance required
by, or give any other Party the right to terminate, any agreement or contract
binding upon or applicable to the Corporation or any Seller; except such
violation, conflict or breach as would not result in a material adverse effect
to the Corporation or any Seller; or result in the creation of any Encumbrance
on any property of the Corporation or any Seller, except any such Encumbrance as
would not result in a material adverse effect to the Corporation or any Seller.
(f) LEGAL ACTION.
There are no unsatisfied judgments, injunctions, stipulations,
orders or decrees against the Corporation or any Seller nor are there any
litigation, arbitration or other proceedings or investigations, by any person or
entity, pending or, to the Corporation or any Seller's knowledge, threatened
against the Corporation or any Seller which relate to the Agreement and the
transactions contemplated hereby, or which, if determined adversely to the
Corporation or any Seller, would have a material adverse effect on the Agreement
and the transactions contemplated hereby.
(g) NO MATERIAL ADVERSE CHANGE.
There has been no material adverse change in the assets,
liabilities and results of operations of the Corporation since the Effective
Date.
Except for the foregoing representations and warranties, the Stock
is hereby conveyed "as is, where is" without any representation or warranty of
any kind.
4. BUYER'S REPRESENTATIONS AND WARRANTIES.
To induce the Sellers to enter into this Agreement, and for the
benefit of the Sellers, the Buyer hereby represents and warrants as follows:
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(a) CORPORATE EXISTENCE AND QUALIFICATION.
The Buyer is a corporation duly organized and validly existing
under the laws of the British Virgin Islands; and the Buyer has the requisite
corporate power to own, operate, manage, lease and hold its assets and
properties and to carry on its business as and where such assets and properties
are presently located and such business is presently conducted.
(b) AUTHORITY, APPROVAL AND ENFORCEABILITY.
This Agreement has been duly executed and delivered by the
Buyer, and the Buyer has all requisite corporate power and legal capacity to
execute and deliver this Agreement, to consummate the transactions contemplated
hereby, and to perform its obligations hereunder. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized and approved by all appropriate corporate
action of the Buyer. This Agreement constitutes, or upon execution and delivery
will constitute, the legal, valid and binding obligation of the Buyer,
enforceable against the Buyer in accordance with its terms, except as such
enforceability may be limited by general equitable principles or by applicable
bankruptcy, insolvency, moratorium, or similar laws and judicial decisions from
time to time in effect which affect creditors' rights and remedies generally.
(c) AGREEMENT NOT IN BREACH OF OTHER INSTRUMENTS.
Neither the execution and delivery of this Agreement nor the
carrying out of the transactions contemplated hereby will violate or conflict
with any of the terms, conditions or provisions of the Buyer's charter
documents; violate any material law applicable to the Buyer or its affiliates,
including, but not limited to the laws of the State Administration of Foreign
Exchange of the People's Republic of China and; violate, conflict with, result
in a breach of, constitute a default under (whether with or without notice or
the lapse of time or both), or accelerate or permit the acceleration of the
performance required by, or give any other Party the right to terminate, any
agreement or contract binding upon or applicable to the Buyer; except such
violation, conflict or breach as would not result in a material adverse effect
to the Buyer; or result in the creation of any Encumbrance on any property of
the Buyer, except any such Encumbrance as would not result in a material adverse
effect to the Buyer.
(d) ABILITY TO BEAR RISK; BUSINESS KNOWLEDGE AND EXPERIENCE.
The Buyer (i) can bear the economic risk of the purchase of
the Stock, including the complete loss of the Buyer's investment, and (ii) has
sufficient knowledge and experience in business and financial matters as to be
capable of evaluating the merits and risks of the purchase of the Stock.
(e) ABSENCE OF REPRESENTATIONS AND WARRANTIES.
The Buyer confirms that none of the Corporation, any Seller or
anyone purportedly acting on behalf of the Corporation or any Seller has made
any representations, warranties, agreements, or statements other than those
contained herein respecting the business, affairs, financial condition, plans,
or prospects of the Corporation nor has the Buyer relied on any representations,
warranties, agreements, or statements in the belief that they were made on
behalf of any of the foregoing nor has the Buyer relied on the absence of any
such representations, warranties, agreements, or statements in reaching the
Buyer's decision to purchase the Stock.
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(f) LEGAL ACTION.
There are no unsatisfied judgments, injunctions, stipulations,
orders or decrees against the Buyer nor are there any litigation, arbitration or
other proceedings or investigations, by any person or entity, pending or, to the
Buyer's knowledge, threatened against the Buyer which relate to the Agreement
and the transactions contemplated hereby, or which, if determined adversely to
the Buyer, would have a material adverse effect on the Agreement and the
transactions contemplated hereby.
5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Parties in this
Agreement shall terminate at the close of business on the date that is one (1)
year from the Effective Date.
6. OTHER AGREEMENTS.
(a) DIVIDENDS.
The Sellers shall have caused all of the estimated retained
earnings of the Corporation as of the day before the Effective Date to be
distributed to the applicable shareholders.
(b) AAL SAN PO KONG FACILITY.
The Parties shall have entered into a lease and/or other
relevant agreement with respect to the Sellers or any of their respective
affiliates' right to remain at such portion of the facility located at 0/X,
Xxxxxxxxxx Xxxxx, 00 Xxx Xxx Xxxxxx, San Po Kong, Kowloon, Hong Kong (the "AAL
San Po Kong Facility") currently occupied by the employees of Applica Asia
Limited until December 31, 2005 at no cost.
(c) EMPLOYEES.
After the Transfer Date, the Sellers shall have no continuing
obligation with respect to any employees of the Corporation; provided, however,
that Xx. Xxx Kin, Xx. Xxx Xxxx Xxx and Xx. Xxxxx Xxx shall terminate their
employment with the Corporation as of the Transfer Date and the Sellers shall be
responsible for any continuing obligations, if any, to such persons.
(d) CREDIT FACILITIES.
As of the Transfer Date, the Sellers and their affiliates
shall be released from any and all obligations arising in connection with any
credit facilities of the Corporation and shall have received written
confirmation to such effect.
(e) NAME CHANGE.
As of the Transfer Date, the Buyer shall have changed the
Existing Name of the Corporation to a new name which shall make no reference to
"Applica."
(f) DELIVERABLES.
Each Party hereto shall have delivered a closing certificate,
duly executed by an authorized officer, in form and substance reasonably
satisfactory to the other Parties hereto certifying, among other things, as to
its corporate authority and board approval to enter into the transactions
contemplated hereby. The Buyer shall also have delivered original certificates
of insurance or true
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copies of insurance policies as required pursuant to Section 11 of the Supply
Agreement. The Parties hereto shall have executed and delivered a Transition
Services Agreement in the form of Exhibit C attached hereto; the Corporation and
the Sellers shall have entered into an Assignment Agreement with respect to the
Receivables in the form of Exhibit D attached hereto; the Parties shall have
executed and delivered the Bought and Sold Notes and Instruments of Transfer in
the forms attached hereto as Exhibit E and the Buyer shall have paid the
applicable stamp duties.
7. POST-CLOSING AGREEMENTS.
(a) EXCLUDED ASSETS.
The Parties acknowledge and agree that (i) certain tooling
currently owned by the Corporation with a book value of approximately USD
3,000,000, as listed on Exhibit A-1 attached hereto (the "Durable Excluded
Assets") and (ii) all physical assets located at the AAL San Po Kong Facility,
as listed on Exhibit A-2 (the "AAL Excluded Assets", together with the Durable
Excluded Assets, the "Excluded Assets") shall not constitute a part of the
transactions contemplated hereby and all rights, title and interest to such
Excluded Assets shall remain with the Sellers.
(b) TRANSFER OF DIE CASTING ASSETS.
Within one hundred twenty (120) days of the Transfer Date, the
Sellers agree to cause their affiliate, Applica Manufacturing S. de X.X. de C.V,
to transfer to the Buyer, at the Buyer's expense, the die casting equipment
listed on Exhibit B hereto (the "Die Casting Assets") and the Buyer shall
install, configure and ensure the good working order of such assets upon the
transfer.
(c) PUBLICITY.
None of the Parties hereto shall issue or make, or cause to
have issued or made, any public release or announcement concerning this
Agreement or the transactions contemplated hereby, without the advance approval
in writing of the form and substance thereof by each of the other Parties
hereto, except as required by law, and the Parties shall endeavor jointly to
agree on the text of any announcement or circular so approved or required.
(d) PRESERVATION OF AND ACCESS TO CERTAIN INFORMATION;
COOPERATION.
(i) On and after the Transfer Date, the Buyer shall
preserve all books and records of the Corporation for a period of seven
(7) years commencing on the Transfer Date, and thereafter, shall not
destroy or dispose of such records without giving notice to the Sellers of
such pending disposal and offering the Sellers such records. In the event
that the Sellers have not requested such materials within ninety (90) days
following the receipt of notice from the Buyer, the Buyer may proceed to
destroy or dispose of any books and records of the Corporation on or after
the tenth anniversary of the Transfer Date.
(ii) From and after the Transfer Date, the Buyer shall
(a) afford the Sellers and their representatives reasonable access upon
reasonable prior notice during normal business hours, to all employees,
officers, properties, agreements, records, books and affairs of the Buyer
relating to the Corporation, including, without limitation, the
Engineering Documentation Library, and provide copies of such information
concerning the Corporation as the Sellers may reasonably request in
connection with the preparation of any tax returns, any judicial,
quasi-judicial, administrative, tax, audit or arbitration proceeding, the
preparation of any financial statements or reports required in accordance
with applicable laws and in connection
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with the defense of any Third Party Claims and (b) cooperate fully with
the Sellers for any proper purpose.
(e) ADEL RECEIVABLES.
All receivables due to Applica Durable Electric Limited from
third party customers (the "ADEL Receivables") arising from and after the
Effective Date through the Transfer Date shall be for the account of the
Sellers. The payments in respect of such receivables shall be transferred to the
Sellers within fifteen (15) days of such request from the Sellers; provided,
however, that (i) the invoice issued by the Corporation for the products
purchased by Applica Durable Electric Limited for shipment to third party
customers related to such ADEL Receivables is paid in full, and (ii) the Buyer
shall have the right to review the calculation of the amount of the ADEL
Receivables and the payments in respect thereof. If the Buyer objects to the
same, it shall notify the Sellers no later than fifteen (15) days after the
Sellers' request for payment together with the basis for its objections in
reasonable detail. The Parties shall thereafter negotiate in good faith to reach
agreement. If the Parties are unable to reach agreement, they shall employ the
Dispute Resolution procedures set forth in the Supply Agreement.
(f) BALANCE SHEET DISPUTES.
In the event that during the period commencing on the Transfer
Date and ending two (2) years thereafter, the Parties have any dispute regarding
the Corporation's June 30, 2004 balance sheet or any other matters directly
related to such balance sheet, which is not subject to indemnification pursuant
to Section 8 of this Agreement, the Parties shall negotiate in good faith to
reach an agreement with respect to such dispute. The failure to resolve any such
dispute shall not result in any liability on the part of the Sellers to the
Buyer or to any third party under this Section 7(f).
(g) FURTHER ASSURANCES.
The Parties shall execute and deliver all such other
instruments and documents and take all such other actions as any Party may
reasonably request from time to time in order to effectuate the transactions
contemplated hereby. The Parties shall cooperate with each other and with their
respective counsel and accountants in connection with any of their respective
obligations under this Agreement.
8. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE SELLERS.
For purposes of this Section, a Party making a claim for
indemnity is hereinafter referred to as an "Indemnified Party" and the Party
against whom such claim is asserted is hereinafter referred to as the
"Indemnifying Party." The Sellers shall indemnify the Buyer and its affiliates
against and hold them harmless from any loss, liability, claim, damage or
expense (including reasonable legal fees and expenses) suffered or incurred by
any such Indemnified Party to the extent arising from (i) any breach of any
representation or warranty of any Seller contained in this Agreement; (ii) any
breach of any agreement or covenant of any Seller contained in this Agreement
and (iii) any claims relating to products sold by the Corporation prior to the
Transfer Date; provided, however, that no Seller shall have any liability for
any breach if the Buyer had knowledge of such breach as of the date hereof and
for any breach to the extent the liability or obligation was exacerbated as a
result of any action taken or omitted to be taken by the Buyer or any of its
affiliates; provided, further, however, that the Sellers' liability hereunder
shall in no event exceed the Purchase Price.
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(b) INDEMNIFICATION BY THE BUYER.
The Buyer shall indemnify the Sellers and their affiliates
against and hold them harmless from any loss, liability, claim, damage or
expense (including reasonable legal fees and expenses) suffered or incurred by
any such Indemnified Party to the extent arising from (i) any breach of any
representation or warranty of the Buyer contained in this Agreement, (ii) any
breach of any agreement or covenant of the Buyer contained in this Agreement;
and (iii) any liability or obligation arising after the Transfer Date in
connection with any credit facilities of the Corporation or any employee of the
Corporation (except in the case of Xx. Xxx Kin, Xx. Xxx Xxxx Xxx and Xx. Xxxxx
Xxx); provided, however, that the Buyer shall not have any liability for any
breach if any of the Sellers had knowledge of such breach as of the date hereof
and for any breach to the extent the liability or obligation was exacerbated as
a result of any action taken or omitted to be taken by any Seller or any of
their affiliates.
(c) LIMITATIONS ON LIABILITY.
Notwithstanding any provision herein, neither any Seller nor
the Buyer shall in any event be liable to the other Party or its affiliates of
any indemnity obligation set forth in Section 8(a) or 8(b) for any indirect,
consequential, special, incidental or punitive damages (including, but not
limited to, loss profits, loss of use, damage to goodwill or loss of business).
(d) LOSSES NET OF INSURANCE.
The amount of any loss, liability, claim, damage, or expense
for which indemnification is provided pursuant to this Section shall be net of
any amounts recovered or recoverable by the Indemnified Party under insurance
policies with respect to such loss, liability, claim, damage, or expense
(collectively, a "Loss") and shall be reduced to take account of any net tax
benefit (including as a result of any basis adjustment) actually realized by the
Indemnified Party arising from the incurrence or payment of any such Loss.
(e) TERMINATION OF INDEMNIFICATION.
The obligations to indemnify and hold harmless a Party hereto
pursuant to this Section shall terminate at the time the applicable
representation or warranty terminates pursuant to Section 5.
(f) PROCEDURES.
All claims by any Indemnified Party shall be asserted and
resolved in accordance with the following provisions. If any claim or demand for
which an Indemnifying Party would be liable to an Indemnified Party is asserted
against or sought to be collected from such Indemnified Party by a third party
(a "Third Party Claim"), the Indemnified Party shall with reasonable promptness
(but in no event later than ten (10) days after the Third Party Claim is so
asserted or sought against the Indemnified Party) notify in writing the
Indemnifying Party of such Third Party Claim enclosing a copy of all pages
served and stating with reasonable specificity the circumstances of the
Indemnified Party's claim for indemnification; provided, however, that any
failure to give such notice will not waive any rights of the Indemnified Party
except to the extent the rights of the Indemnifying Party are actually
prejudiced. After receipt by the Indemnifying Party of such notice, then upon
reasonable notice from the Indemnifying Party to the Indemnified Party, or upon
the request of the Indemnified Party, the Indemnifying Party shall defend,
manage and conduct any proceedings, negotiations or communications involving any
claimant whose claim is the subject of the Indemnified Party's notice to the
Indemnifying Party as set forth above, and shall take all actions necessary,
including but not limited to the posting of such bond or other security
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as may be required by any governmental authority, so as to enable the Third
Party Claim to be defended against or resolved without expense or other action
by the Indemnified Party. Upon request of the Indemnifying Party, the
Indemnified Party shall, to the extent it may legally do so and to the extent
that it is compensated in advance by the Indemnifying Party for any costs and
expenses thereby incurred: (i) take such action as the Indemnifying Party may
reasonably request in connection with such action, (ii) allow the Indemnifying
Party to dispute such action in the name of the Indemnified Party and conduct a
defense to such action on behalf of the Indemnified Party, and (iii) render to
the Indemnifying Party all such assistance as the Indemnifying Party may
reasonably request in connection with such dispute and defense.
(g) INDEMNIFICATION BASKET.
Neither Party shall be required to make any indemnification
payment for any Third Party Claim unless the aggregate of all amounts for which
indemnity would be payable by such Party exceeds USD 250,000 (except as relates
to any indemnification referred to in Section 8(a)(iii)) in any indemnification
year beginning on the Transfer Date (the "Basket Amount"), and, in such event,
such Party shall be responsible for only the amount in excess of the Basket
Amount.
9. BROKERS AND FINDERS.
Each of the Parties hereto represents and warrants to the
others that it has not employed or retained any broker or finder in connection
with the transactions contemplated by this Agreement nor has it had any dealings
with any person that may entitle that person to a fee or commission from any
other Party hereto. Each of the Parties indemnifies and holds the others
harmless from and against any claim, demand, or damages whatsoever by virtue of
any arrangement or commitment made by it with or to any person that may entitle
such person to any fee or commission from the other Parties to this Agreement.
10. GENERAL PROVISIONS.
(a) NOTICES.
Any notice, request, instruction, correspondence or other
document to be given hereunder by any Party hereto to another (herein
collectively called "Notice") shall be in writing and in the English language
and delivered personally or mailed by certified mail, postage prepaid and return
receipt requested, or by facsimile (with confirmation), or by a reputable
overnight delivery service, as follows:
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If to the Buyer, to:
CENTRAL GOLD WORLDWIDE LIMITED
AMS Trustees Limited
X.X. Xxx 000
Xxxx Xxxx, Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
with a copy given in the manner
prescribed above to:
ELEC-TECH INTERNATIONAL (H.K.) COMPANY LIMITED
1501, 00/X, 000 Xxxxxx Xxxx
XxxxXxxXxxx, Xxxx Xxxx
Attention: General Manager
Phone No.: (0000) 0000000
Facsimile No.: (0000) 0000000
Phone No.: (000) 0000-0000
Facsimile No.: (000) 0000-0000
with a copy given in the manner
prescribed above to:
Holland & Knight LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Sellers, to each in care of:
APPLICA INCORPORATED
0000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Legal Department
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy given in the manner
prescribed above to:
Xxxxxxxxx Traurig, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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Each of the above addresses for notice purposes may be changed by
providing appropriate notice hereunder. Notice given by personal delivery or
certified mail shall be effective upon actual receipt. Notice given by facsimile
shall be effective upon actual receipt if received during the recipient's normal
business hours, or at the beginning of the recipient's next normal business day
if not received during the recipient's normal business hours. Notice given by
overnight delivery shall be effective on the next business day if the package
containing the notice was timely delivered to the delivery service. All Notices
by facsimile shall be confirmed by the sender thereof promptly after
transmission in writing by registered mail or personal delivery. Anything to the
contrary contained herein notwithstanding, notices to any Party hereto shall not
be deemed effective with respect to such Party until such Notice would, but for
this sentence, be effective both as to such Party and as to all other persons to
whom copies are provided above to be given.
(b) BINDING NATURE OF AGREEMENT; ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit
of the Parties hereto and their respective permitted heirs, personal
representatives, successors, and assigns; but neither this Agreement nor any of
the rights, benefits or obligations hereunder shall be assigned, by operation of
law or otherwise, by any Party hereto without the prior written consent of the
other Parties hereto. Nothing in this Agreement, express or implied, is intended
to confer upon any person or entity other than the Parties hereto and their
respective permitted heirs, personal representatives, successors, and assigns,
any rights, benefits or obligations hereunder.
(c) ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS.
This Agreement, together with all exhibits and schedules
attached hereto, and the Supply Agreement constitute the entire agreement among
the Parties hereto pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the Parties, and there are no warranties, representations or other
agreements among the Parties in connection with the subject matter hereof except
as set forth specifically herein or contemplated hereby. No supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing and duly approved by each of the Parties hereto.
(d) GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.
The provisions of this Agreement and the documents delivered
pursuant hereto shall be governed by and construed in accordance with the laws
of the State of Florida (excluding any conflict of law rule or principle that
would refer to the laws of another jurisdiction). Each Party hereto irrevocably
submits to the exclusive jurisdiction of the federal and state courts located in
Miami-Dade County, the State of Florida, in any action or proceeding arising out
of or relating to this Agreement, and each Party hereby irrevocably agrees that
all claims in respect of any such action or proceeding must be brought and/or
defended in such courts. Each Party hereto consents to service of process by any
means authorized by the applicable law of the forum in any action brought under
or arising out of this Agreement, and each Party hereto irrevocably waives, to
the fullest extent each may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any of such courts.
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION
OR PROCEEDING ARISING HEREUNDER.
11
(e) PROVISIONS SEPARABLE.
The provisions of this Agreement are independent of and
separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
(f) INDULGENCES NOT WAIVERS.
Neither the failure nor any delay on the part of any Party to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, power, or privilege preclude any other or further exercise of the
same or of any other right, remedy, power, or privilege, nor shall any waiver of
any right, remedy, power, or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power, or privilege with respect to
any other occurrence (regardless of whether similar). No waiver shall be
effective unless it is in writing and is signed by the Party asserted to have
granted such waiver.
(g) COSTS AND EXPENSES.
Each Party hereto shall bear its own costs and expenses,
including legal and accounting fees, incurred in connection with the
negotiation, preparation, execution and closing of this Agreement, and all
transactions contemplated hereby.
(h) TITLES NOT TO AFFECT INTERPRETATION.
The titles of paragraphs and subparagraphs contained in this
Agreement are for convenience of reference only, and they neither form a part of
this Agreement nor are they to be used in the construction or interpretation
hereof.
(i) EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original as against any Party whose
signature appears thereon, and all of which shall together constitute one and
the same instrument. This Agreement shall become effective when one or more such
counterparts have been signed by each of the Parties and delivered to the other
Party. A facsimile signature will have the same force and effect as an original
signature.
(j) EXCLUSIVE RIGHTS AND REMEDIES.
The rights and remedies provided by this Agreement are the
sole and exclusive rights and remedies in the event of any breach of any
representation, warranty, agreement or covenant by any Party hereto and shall
exclude any other rights or remedies to which any Party may be lawfully entitled
(other than claims of or causes of action arising from fraud).
(k) REFERENCES.
Whenever required by the context, and is used in this
Agreement, the singular number shall include the plural and pronouns and any
variations thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural, as the identification of the person may require. References
to monetary amounts, specific named statutes and generally accepted accounting
principles are intended to be and shall be construed as references to United
States dollars, statutes of the United
12
States of the stated name and United States generally accepted accounting
principles, respectively, unless the context otherwise requires.
(l) CONSTRUCTION.
The provisions of this Agreement shall be construed according
to their fair meaning and neither for nor against any Party hereto irrespective
of which Party caused such provisions to be drafted. Each of the Parties hereto
acknowledges that it has been represented by an attorney in connection with the
preparation and execution of this Agreement.
(m) ATTORNEYS' FEES.
In the event any suit or other legal proceeding is brought for
the enforcement of any of the provisions of this Agreement, the Parties hereto
agree that the prevailing Party or Parties shall be entitled to recover from the
other Party or Parties upon final judgment on the merits reasonable attorneys'
fees (and sales taxes thereon, if any), including attorneys' fees for any
appeal, and costs incurred in bringing such suit or proceeding.
(n) NUMBER OF DAYS.
In computing the number of days for purposes of this
Agreement, all days shall be counted, including Saturdays, Sundays, and holidays
celebrated in the United States; provided, however, that if the final day of any
period falls on a Saturday, Sunday, or holiday celebrated in the United States,
then the final day shall be deemed to be the next day which is not a Saturday,
Sunday, or holiday celebrated in the United States.
(o) INDEPENDENT CONTRACTORS.
The Parties are and shall be independent contractors to one
another, and nothing herein shall be interpreted, construed of or otherwise
cause this Agreement to be deemed to create an agency, partnership, or joint
venture between the Parties. Nothing in this Agreement shall be interpreted or
construed as creating or establishing the relationship of employer or employee
between the Parties.
13
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their duly authorized representatives on the day and year first
above written.
SELLERS:
APPLICA INCORPORATED:
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
REMDALE INVESTMENTS LIMITED:
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Director
PPC INDUSTRIES LIMITED:
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxx
Director
BUYER:
CENTRAL GOLD WORLDWIDE LIMITED:
By: /s/ Oian Weiging
-------------------------------------
Oian Weiging
Vice President
14
SCHEDULE A
CAPITALIZATION AND OWNERSHIP OF STOCK
SHARE
ENTITY OWNERSHIP
--------------------------- ------------------
Applica Incorporated 6,156 A shares
550 B shares
PPC Industries Limited 1,263,600 A shares
27,522 B shares
Remdale Investments Limited 9,234 B shares
AUTHORIZED CAPITAL
HK$ 65,399,500
ISSUED SHARE CAPITAL
HK$ 65,353,100
15
SCHEDULE B
BALANCE SHEET OF THE CORPORATION AS OF THE EFFECTIVE DATE
16
HONG KONG DOLLAR PRESENTATION:
ADEL
PARAWIND DURABLE - LOCAL DURABLE - CON
-------------- ---------------- --------------
CASH 1,682,070.49 8,177,754.31
A/R 30,662,139.07 55,218,007.68
A/R AFFIL (10,278,528.51) 609,002,856.45
INVENTORY 120,545,499.26
PREPAID EXPENSE 5,000.00 3,194,840.96
-------------- -----------------
TOTAL CURRENT ASSETS 22,070,681.05 796,138,958.66
-------------- -----------------
INVESTMENTS 25,110,419.81 (25,110,419.81)
FIXED ASSET 191,404,176.37
OTHER ASSET
============== ================ ==============
TOTAL ASSETS 22,070,681.05 1,012,653,554.84 (25,110,419.81)
============== ================ ==============
LOAN FROM SHR
NOTES & ACCEPT
A/P (3,118,779.27) (224,590,384.86)
ACCRUED EXPENSE (383,916.00 (54,122,869.01)
CUR TAX PAYABLE (6,187,434.17)
-------------- -----------------
TOTAL CURRENT LIABILITIES (3,502,695.27) (284,900,688.04)
-------------- -----------------
L.T. DEBT (58,425,000.00)
DEF TAX L.T. (18,447,146.00)
-------------- -----------------
TOTAL LIABILITIES (3,502,695.27) (361,772,834.04)
-------------- -----------------
COMMON STOCK (18,073,010.33 (65,353,100.00) 18,172,970.76
PAID IN CAPITAL (181,628,969.46) 6,937,449.05
TOTAL EXCHANGE
RETAINED EARNINGS (494,975.45) (403,898,651.34)
TOTAL STOCKHOLDERS EQTY (18,567,985.78) (650,880,720.80) 25,110,419.81
============== ================= ==============
TOTAL LIABILITIES & EQUITY (22,070,681.05 (1,012,653,554.84) 25,110,419.81
============== ================= ==============
BALANCE SHEET CHECK
ADM's June Stockholder's Equity 18,567,985.78 650,880,720.80 (25,110,419.81)
Less:
Retained Earnings 494,975.45 403,898,651.34
ADM Excluded Assets (Actual) 29,026,766.47
ADM for AAL Excluded Assets (Actual) 2,585.00
Included Assets-Die Cast Mexico (Actual)* 1,019,965.42
============== ================= ==============
ADM's June Adusted Book Value 18,073,010.33 218,972,683.41 (25,110,419.81)
============== ================= ==============
June Affiliates C/A less dividend (10,773,503.96) 205,104,205.11
============== ================= ==============
Balance due if we had closed June 28,846,514.29 13,868,478.30 (25,110,419.81)
============== ================= ==============
DURABLE AND
NOVOTEK LTD XXXXX AFFILIATES
-------------- -------------- -----------------
CASH 1,376.21 9,861,201.01
A/R 85,880,146.75
A/R AFFIL (273,464.96) 598,450,862.98
INVENTORY 120,545,499.26
PREPAID EXPENSE 36,336.60 3,236,177.56
-------------- -------------- -----------------
TOTAL CURRENT ASSETS (272,088.75) 36,336.60 817,973,887.56
-------------- -------------- -----------------
INVESTMENTS
FIXED ASSET 3,959,633.44 195,363,809.81
OTHER ASSET 173,918.86 173,918.86
============== ============== =================
TOTAL ASSETS (272,088.75) 4,169,888.90 1,013,511,616.23
============== ============== =================
LOAN FROM SHR
NOTES & ACCEPT
A/P (13,733.35) (227,722,897.48)
ACCRUED EXPENSE 1,675.00 (54,505,110.01)
CUR TAX PAYABLE (6,187,434.17)
-------------- -------------- -----------------
TOTAL CURRENT LIABILITIES 1,675.00 (13,733.35) (288,415,441.66)
-------------- -------------- -----------------
L.T. DEBT (58,425,000.00) 7.79 (7,500,000.00)
DEF TAX L.T. (18,447,146.00)
-------------- -------------- -----------------
TOTAL LIABILITIES 1,675.00 (13,733.35) (365,287,587.66)
-------------- -------------- -----------------
COMMON STOCK (2.00) (100,000.00) (65,353,141.57)
PAID IN CAPITAL (6,937,449.05) (181,628,969.46)
TOTAL EXCHANGE
RETAINED EARNINGS 270,415.75 2,881,293.50 (401,241,917.54)
TOTAL STOCKHOLDERS EQTY 270,413.75 (4,156,155.55) (648,224,028.57)
============== ============== =================
TOTAL LIABILITIES & EQUITY 272,088.75 (4,169,888.90) (1,013,511,616.23)
============== ============== =================
BALANCE SHEET CHECK
ADM's June Stockholder's Equity (270,413.75) 4,156,155.55 648,224,028.57
Less:
Retained Earnings (270,415.75) (2,881,293.50) 401,241,917.54
ADM Excluded Assets (Actual) 29,026,766.47 7.79 3,726,157.44
ADM for AAL Excluded Assets (Actual) 2,585.00
Included Assets-Die Cast Mexico (Actual)* 1,019,965.42
============== ============== =================
ADM's June Adusted Book Value 2.00 7,037,449.05 218,972,724.98
============== ============== =================
June Affiliates C/A less dividend (3,049.21) 2,881,293.50 197,208,945.44
============== ============== =================
Balance due if we had closed June 3,051.21 4,156,155.55 21,763,779.54
============== ============== =================
7.79
USD EQUIVALENT 2,793,809.95
* NOTE:
Per Exhibit B Stock Purchase Agreement - Mexico Die Casting Assets of
$130,932.66USD converted at $7.79HKD to $1USD($130,932.66 x 7.79 =
$1,019,965.42).
EXHIBIT B
DIE CASTING ASSETS
19
APPLICA MANUFACTURING
QUERETARO PLANT
TRANSFER FIXED ASSETS
BUSINESS UNIT: DIE CASTING
DOLLARS
NUMBER
FIXED ASSETS DESCRIPTION XXXX MODEL TONS CAPACITY VALUE
MACHINERY:
04111000020 DIE CASTING INJECTION MACHINE TOSHIBA DC350C 800 GRS INYECC 420 X 420 MM 3,448.28
04111000034 DIE CASTING INJECTION MACHINE TOSHIBA DC350C 2600 GRS INYECC 580 X 580 MM 23,411.98
04111000062 DIE CASTING INJECTION MACHINE TOSHIBA DO3500 2600 GRS INYECC 580 X 580 MM 11,705.99
04111000068 DIE CASTING INJECTION MACHINE TOSHIBA DC350C 2600 GRS INYECC 580 X 580 MM 11,705.99
04111000060 DIE CASTING INJECTION MACHINE TOSHIBA DC350C 2600 GRS INYECC 580 X 580 MM 11,705.99
04111000061 DIE CASTING INJECTION MACHINE TOSHIBA DC350C 2600 GRS INYECC 580 X 580 MM 11,705.99
PERIPHERAL EQUIPMENT : SUB-TOTAL 73,684.21
04111000037 HEATER OIL REGAL 1,483.84
04111000048 HEATER OIL REGAL 1,483.84
04111000049 HEATER OIL REGAL 2,434.32
04111000073 HEATER OIL REGAL 1,483.84
04111000074 HEATER OIL QPC 1,852.03
04111000078 HEATER OIL QPC 1,615.95
04111000024 LUDOX SPRAYING SYSTEM YZAR 725.95
04111000025 LUDOX SPRAYING SYSTEM HOC GUAN SOON 3,795.20
04111000054 LUDOX SPRAYING SYSTEM HOC GUAN SOON 725.95
04111000055 LUDOX APPLICATOR 3 CAV YZAR 725.95
04111000056 LUDOX SPRAYING SYSTEM HOC GUAN SOON 725.95
04111000059 LUDOX M/C & PIPING HOC GUAN SOON 2,230.28
04111000019 FUSION FURNACE STRIKO MH-11-N 750/750G-EG 16,805.70
04111000007 FURNACE CAISA 1,361.16
04111000008 FURNACE CAISA 1,361.16
04111000065 FURNACE CAISA 1,469.31
04111000066 FURNACE CAISA 1,526.01
04111000077 FURNACE CAISA 1,376.67
04111000080 FURNACE CAISA 1,361.16
04111000464 MECHANIC ARM RIMROCK 3,176.04
20
APPLICA MANUFACTURING
QUERETARO PLANT
TRANSFER FIXED ASSETS
BUSINESS UNIT: DIE CASTING
DOLLARS
NUMBER
FIXED ASSETS DESCRIPTION XXXX MODEL TONS CAPACITY VALUE
------------ ----------- ---- ----- ---- -------- ------
04111000464 MECHANIC ARM RIMROCK 3,176.04
04111000465 MECHANIC ARM RIMROCK 3,176.04
04111000466 MECHANIC ARM RIMROCK 3,176.04
04111000467 MECHANIC ARM RIMROCK 3,176.04
SUB-TOTAL 57,248.46
-------------------
TOTAL DIE CASTING 130,932.66
===================
21
EXHIBIT C
TRANSITION SERVICES AGREEMENT
22
TRANSITION SERVICES AGREEMENT
This Transition Services Agreement (this "Agreement") is made and entered
into as of the 28th day of July 2004, by and among Applica Consumer Products,
Inc., a company organized and existing under the laws of the State of Florida
and its affiliates ("Applica"), Durable Manufacturing Limited, a company
organized and existing under the laws of Hong Kong, formerly known as Applica
Durable Manufacturing Limited ("Durable") and Central Gold Worldwide Limited, a
company organized and existing under the laws of the British Virgin Islands
("Central"). Applica, Durable and Central are collectively referred to herein as
the "Parties", and each individually as a "Party."
WITNESSETH:
WHEREAS, Applica and its affiliates, Remdale Investments Limited, a
company organized and existing under the laws of the British Virgin Islands and
PPC Industries Limited, a company organized and existing under the laws of the
British Virgin Islands and Central have entered into a stock purchase agreement
dated as of even date herewith (the "Stock Purchase Agreement") with respect to
the sale of the stock of Applica Durable Manufacturing Limited; and
WHEREAS, to promote a smooth transition of Durable's business, Applica has
agreed to provide or to cause its affiliates to provide to Durable certain
services and Durable has agreed to provide or to cause its affiliates to provide
to Applica certain services, in each case as described in Exhibit A hereto upon
the terms and conditions set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the Parties contained herein, the Parties agree as follows:
1. Definitions. Capitalized terms used in this Agreement but not defined
herein shall have the meanings given to them in the Stock Purchase Agreement.
2. Services. During the term of this Agreement, the Parties shall provide
or at their option shall cause one or more of their affiliates to provide, as
applicable, the services described in Exhibit A to this Agreement (the
"Services").
3. Consideration. All Services provided hereunder shall be at no cost to
the receiving Party.
4. Performance Standard; Confidentiality. In providing the Services
hereunder, the Parties hereto or their respective affiliates shall exercise
professional judgment and diligence. All information disclosed to either Party
hereunder or to their respective affiliates and identified as proprietary and
confidential shall be subject to terms of the Confidentiality Agreement
previously entered into on January 29, 2004 between Applica and all of its
subsidiaries and affiliates and Elec-Tech International (H.K.) Company Limited
and its subsidiaries or affiliates.
5. Force Majeure; Reduction of Services. Neither Party shall be liable to
the other for any delay or failure on the part of the other due to acts of war,
embargo, riot or any unforeseen intervention of a governmental authority causing
a complete business interruption so long as notice of such event is promptly
given to the other Party. If such delay or failure continues for more than
fifteen (15) days, the Parties shall meet to attempt in good faith to agree upon
the actions to be taken in order to arrive at an equitable solution.
6. Limited Liability. Neither Party shall be liable to the other, whether
in negligence, breach of contract, tort or otherwise, for any damages suffered
or incurred by the other arising out of or in connection with the rendering of
the Services hereunder or any failure to provide a Service, except to the extent
that such damages are caused by the willful misconduct or gross negligence of a
Party. In no event shall any Party be liable for special, incidental or
consequential losses or damages, including without limitation, loss profits.
7. Term and Termination. This Agreement shall become effective on the date
hereof and shall continue in effect until December 31, 2004 (the "Termination
Date"). If the Parties mutually agree in writing, this Agreement may be extended
beyond the Termination Date or terminated prior to such date.
8. No Agency or Partnership. Nothing in this Agreement shall be deemed in
any way or for any purpose to constitute either Party as an agent of the other
Party in the conduct of such Party's business or to create a partnership or
joint venture between the Parties.
9. Entire Agreement; Waiver. This Agreement, together with the exhibit
hereto, constitutes the entire agreement of the Parties with respect to the
Services hereunder, and no waiver, alteration, or modification of any provision
hereof shall be effective unless in writing and signed by authorized
representatives of both Parties. Except as otherwise expressly provided herein,
no provision hereof is intended to confer upon any person other than the Parties
hereto any rights or remedies hereunder.
10. Expenses. Each Party shall bear its own costs and expenses in
connection with the Services to be provided hereunder.
11. Notices. Any notice, request, instruction, correspondence or other
document to be given hereunder by any Party hereto to another (herein
collectively called "Notice") shall be in writing and in the English language
and delivered personally or mailed by certified mail, postage prepaid and return
receipt requested, or by facsimile (with confirmation), or by a reputable
overnight delivery service, as follows:
2
If to Central, to:
AMS Trustees Limited
X.X. Xxx 000
Xxxx Xxxx, Xxxxxxx
Xxxxxxx Xxxxxx Xxxxxxx
with a copy given in the manner
prescribed above to Durable:
C/O ELEC-TECH INTERNATIONAL (H.K.) COMPANY LIMITED
1501, 00/X, 000 Xxxxxx Xxxx
XxxxXxxXxxx, Xxxx Xxxx
Attention: General Manager
Phone No.: (0000) 0000000
Facsimile No.: (0000) 0000000
Phone No.: (000) 0000-0000
Facsimile No.: (000) 0000-0000
with a copy given in the manner
prescribed above to:
Holland & Knight LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Applica, to:
APPLICA CONSUMER PRODUCTS, INC.
0000 Xxxxx Xxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Attention: Legal Department
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
3
with a copy given in the manner
prescribed above to:
Xxxxxxxxx Traurig, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Phone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Each of the above addresses for notice purposes may be changed by
providing appropriate notice hereunder. Notice given by personal delivery or
certified mail shall be effective upon actual receipt. Notice given by facsimile
shall be effective upon actual receipt if received during the recipient's normal
business hours, or at the beginning of the recipient's next normal business day
if not received during the recipient's normal business hours. Notice given by
overnight delivery shall be effective on the next business day if the package
containing the notice was timely delivered to the delivery service. All Notices
by facsimile shall be confirmed by the sender thereof promptly after
transmission in writing by registered mail or personal delivery. Anything to the
contrary contained herein notwithstanding, notices to any Party hereto shall not
be deemed effective with respect to such Party until such Notice would, but for
this sentence, be effective both as to such Party and as to all other persons to
whom copies are provided above to be given.
12. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Parties hereto and their respective successors and
assigns, except that this Agreement may not be assigned in whole or in part
without the prior written consent of the other Party hereto, which consent shall
not be unreasonably withheld.
13. Construction. As used in this Agreement, the plural shall include the
singular and the singular shall include the plural. With regard to each and
every term and condition of this Agreement, the Parties hereto understand and
agree that the same have or has been mutually negotiated, prepared and drafted,
and that if at any time the Parties desire or are required to interpret or
construe any such term or condition or any agreement or instrument subject
hereto, no consideration shall be given to the issue of which Party actually
prepared, drafted or requested this Agreement.
14. Counterparts; Effectiveness. This Agreement may be executed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each Party has received a counterpart hereof signed
by the other Party hereto. Facsimile signatures are acceptable as originals.
15. Captions. The captions used in this Agreement are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
4
16. Severability. Any provision of this Agreement that is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement.
17. Further Assurances. The Parties agree to execute and deliver such
other instruments and documents and take such other actions as any Party to this
Agreement may reasonably request in connection with the transactions
contemplated by this Agreement, including, without limitation, transmitting and
crediting all monies received by a Party in error to the appropriate Party.
18. Governing Law. This Agreement shall be construed and interpreted in
accordance with and governed by the laws of the State of Florida (without regard
to the choice of law provisions thereof).
5
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first above written.
APPLICA CONSUMER PRODUCTS, INC.:
By:_______________________________
Name:__________________________
Title:_________________________
CENTRAL GOLD WORLDWIDE LIMITED:
By:_______________________________
Name:__________________________
Title:_________________________
DURABLE MANUFACTURING
LIMITED (formerly known as Applica
Durable Manufacturing Limited):
By:_______________________________
Name:__________________________
Title:_________________________
6
EXHIBIT A
THE SERVICES
Engineering
- Quality/Testing Lab
- Engineering Documentation
- Tooling
- People
- Xxxx Xxxxxx
- XX Xxx
- Xxxxxx Xxxx
- Xxxxxx Xxxxx
- Xxxxx Xxxx
- Alternate: Xxxxxx Xxxx
Creative Services
- Assistance with product packaging artwork, including the printing process
- People
- Xxxx Lung
- Xxxx Xxx
XXXX/AAL
- Accounting systems and support
- Transfer of orders, invoicing, payments and collections from ADEL to AAL
(Applica to get credit for all such business after the Effective Date)
- People
- Xxx Xxx Xxxx
- Xxxxxxxx Xxxxxx
- Xxxxxx Xxxxx
- Xxxxx Xxxxx
- Xxxx Xx
IT
- Software Licenses
- ProE, PDM Link, Lotus Notes, QAD
- Hardware
- Disaster Recover (AAL backups)
- People
- Xxxxxx Xxx
Other
- Dormitories for China staff
- Component manufacturing
- Cancellation of Bank lines/Applica guarantee
- Assignment of A/R
7
- Assistance with transfer of die casting assets from Mexico, including
assistance with disassembling, packaging, shipping, installing,
configuring and achieving the good working order of such assets
- People
- Xxxxx Xxxx
- Au Young Ban
- Alternative - Xxxxxxx Xxx
The Parties shall take all such other actions as any Party may reasonably
request from time to time in order to effectuate a reasonable and orderly
de-linking of shared services.
8
EXHIBIT D
ASSIGNMENT AGREEMENT
23
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Agreement") is made as of this 28th day
of July 2004, by and among APPLICA DURABLE MANUFACTURING LIMITED, a company
organized and existing under the laws of Hong Kong (the "Assignor"), PPC
INDUSTRIES LIMITED, a company organized and existing under the laws of the
British Virgin Islands, APPLICA INCORPORATED, a company organized and existing
under the laws of the State of Florida and REMDALE INVESTMENTS LIMITED, a
company organized and existing under the laws of the British Virgin Islands
(each an "Assignee", collectively, the "Assignees"). Capitalized terms used and
not otherwise defined herein shall have the meanings ascribed to such terms in
the Stock Purchase Agreement (as hereinafter defined). The Assignor and the
Assignees are collectively referred to herein as the "Parties", and each
individually as a "Party".
RECITALS
WHEREAS, the Assignees are shareholders of the Assignor and are Sellers
under the terms of a Stock Purchase Agreement dated as of even date herewith, by
and among the Assignees and Central Gold Worldwide Limited, a company organized
and existing under the laws of the British Virgin Islands (the "Stock Purchase
Agreement");
WHEREAS, in connection with the payment of the Purchase Price pursuant to
Section 2 of the Stock Purchase Agreement, the Assignor desires to assign its
rights, title and interest in and to (i) the Receivables attached hereto as
Exhibit A and (ii) the Excluded Assets to the Assignees or their affiliates; and
WHEREAS, the Assignees desire to accept the foregoing assignment from the
Assignor.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Assignor and the Assignees
agree as follows:
1. The Assignor does hereby assign, convey and transfer, without recourse,
all of its rights, title and interest in and to (i) the Receivables and (ii) the
Excluded Assets to the Assignees or any of their affiliates and the Assignees
hereby accept such assignment on behalf of themselves and their affiliates. From
and after the date hereof, the Assignees and any of their affiliates shall be
entitled to all of the Assignor's rights, powers and privileges under any
document evidencing the Receivables and the Excluded Assets.
2. Each of the Assignor and the Assignees hereby agrees to execute and
deliver such other instruments and documents and take such other actions as any
Party to this Agreement may reasonably request in connection with the
transactions contemplated by this Agreement.
3. This Agreement shall be deemed to be a contract pursuant to the laws of
the State of Florida (excluding any conflict of law, rule or principle that
would refer to the laws of another jurisdiction).
4. This Agreement may be executed in counterparts, each of which shall be
deemed an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement shall become effective when each
Party has received a counterpart hereof signed by the other Parties hereto.
Facsimile signatures are acceptable as originals.
2
IN WITNESS WHEREOF, the Assignees and the Assignor have caused this
Agreement to be duly executed as of the date first written above by their duly
authorized representatives.
ASSIGNOR:
APPLICA DURABLE MANUFACTURING LIMITED
By:________________________________________
Name:______________________________________
Title:_____________________________________
ASSIGNEES:
PPC INDUSTRIES LIMITED
By:________________________________________
Name:______________________________________
Title:_____________________________________
REMDALE INVESTMENTS LIMITED
By:________________________________________
Name:_____________________________________
Title:_____________________________________
APPLICA INCORPORATED
By:________________________________________
Name:______________________________________
Title:_____________________________________
3
EXHIBIT E
BOUGHT NOTES, SOLD NOTES AND INSTRUMENT OF TRANSFER
24
APPLICA DURABLE MANUFACTURING LIMITED
(Incorporated in Hong Kong)
SOLD NOTE
Name of Purchaser (Transferee): CENTRAL GOLD WORLDWIDE LIMITED
-----------------------------------------------
Address: X.X. XXX 000, XXXX XXXX, XXXXXXX, XXXXXXX XXXXXX XXXXXXX
----------------------------------------------------------------------
Name of Company in which the shares to be transferred:
APPLICA DURABLE MANUFACTURING LIMITED
-------------------------------------------------------------------------------
Number of Shares: 6,156 CLASS A SHARES of par value HK$50.00 each
-------------------- ------------
Consideration Received: US$132,390.00
-------------------------------------------------------
For and on behalf of
APPLICA INCORPORATED
DIRECTOR
-----------------------------
(Transferor)
Date:
-------------------------------------------------------------------------------
BOUGHT NOTE
Name of Seller (Transferor): APPLICA INCORPORATED
--------------------------------------------------
Address: 0000 XXXXX XXXXX XXXXX, XXXXX XXXXX, XXXXXXX 00000,
----------------------------------------------------------------------
UNITED STATES OF AMERICA
----------------------------------------------------------------------
Name of Company in which the shares to be transferred:
APPLICA DURABLE MANUFACTURING LIMITED
-------------------------------------------------------------------------------
Number of Shares: 6,156 CLASS A SHARES of par value HK$50.00 each
-------------------- ------------
Consideration Paid: US$132,390.00
-----------------------------------------------------------
For and on behalf of
Central Gold Worldwide Limited
DIRECTOR
-----------------------------
(Transferee)
Date:
INSTRUMENT OF TRANSFER
I (We), : APPLICA INCORPORATED
of : 0000 Xxxxx Xxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxx 00000,
Xxxxxx Xxxxxx of America
in consideration of the Sum of Dollars : US$132,390.00
paid to me (us) by : CENTRAL GOLD WORLDWIDE LIMITED
occupation : corporation
of : X.X. Xxx 000, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
(hereinafter called "the said transferee") do hereby transfer to the said
transferee the 6,156 fully paid Class A Shares, standing in my (our) name in the
Register of APPLICA DURABLE MANUFACTURING LIMITED to hold unto the said
transferee, his executors, administrators or assigns, subject to the execution
hereof. And I (we) the said transferee do hereby agree to take the said Share(s)
subject to the same conditions.
Witness our hands the day of
Witness to the signature(s) ) For and on behalf of
of ) APPLICA INCORPORATED
Name: )
Address: )
)
) ---------------------
) Authorised Signature(s)
)
------------------------------- ) -------------------------------
Signature of Witness Signature of TRANSFEROR
Witness to the signature(s) ) For and on behalf of
of ) CENTRAL GOLD
Name: ) WORLDWIDE LIMITED
Address: )
)
)
) ---------------------
) Authorised Signature(s)
)
------------------------------- ) -------------------------------
Signature of Witness Signature of TRANSFEREE
APPLICA DURABLE MANUFACTURING LIMITED
(Incorporated in Hong Kong)
SOLD NOTE
Name of Purchaser (Transferee): CENTRAL GOLD WORLDWIDE LIMITED
------------------------------------------------
Address: X.X. XXX 000, XXXX XXXX, XXXXXXX, XXXXXXX XXXXXX XXXXXXX
----------------------------------------------------------------------
Name of Company in which the shares to be transferred:
APPLICA DURABLE MANUFACTURING LIMITED
--------------------------------------------------------------------------------
Number of Shares: 550 CLASS B SHARES of par value HK$50.00 each
---------------------- -------------
Consideration Received: US$11,828.20
--------------------------------------------------------
For and on behalf of
APPLICA INCORPORATED
DIRECTOR
--------------------------------
(Transferor)
Date:
--------------------------------------------------------------------------------
BOUGHT NOTE
Name of Seller (Transferor): APPLICA INCORPORATED
---------------------------------------------------
Address: 0000 XXXXX XXXXX XXXXX, XXXXX XXXXX, XXXXXXX 00000,
-----------------------------------------------------------------------
UNITED STATES OF AMERICA
-----------------------------------------------------------------------
Name of Company in which the shares to be transferred:
APPLICA DURABLE MANUFACTURING LIMITED
--------------------------------------------------------------------------------
Number of Shares: 550 CLASS B SHARES of par value HK$50.00 each
-------------------- -------------
Consideration Paid: US$11,828.20
------------------------------------------------------------
For and on behalf of
Central Gold Worldwide Limited
DIRECTOR
--------------------------------
(Transferee)
Date:
INSTRUMENT OF TRANSFER
I (We), : APPLICA INCORPORATED
of : 0000 Xxxxx Xxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxx 00000,
Xxxxxx Xxxxxx of America
in consideration of the Sum of Dollars : US$11,828.20
paid to me (us) by : CENTRAL GOLD WORLDWIDE LIMITED
occupation : corporation
of : X.X. Xxx 000, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
(hereinafter called "the said transferee") do hereby transfer to the said
transferee the 550 fully paid Class B Shares, standing in my (our) name in the
Register of APPLICA DURABLE MANUFACTURING LIMITED to hold unto the said
transferee, his executors, administrators or assigns, subject to the execution
hereof. And I (we) the said transferee do hereby agree to take the said Share(s)
subject to the same conditions.
Witness our hands the day of
Witness to the signature(s) ) For and on behalf of
of ) APPLICA INCORPORATED
Name: )
Address: )
)
) ---------------------
) Authorised Signature(s)
)
------------------------------- ) ---------------------------------
Signature of Witness Signature of TRANSFEROR
Witness to the signature(s) ) For and on behalf of
of ) CENTRAL GOLD
Name: ) WORLDWIDE LIMITED
Address: )
)
)
) ---------------------
) Authorised Signature(s)
)
------------------------------- ) ---------------------------------
Signature of Witness Signature of TRANSFEREE
APPLICA DURABLE MANUFACTURING LIMITED
(Incorporated in Hong Kong)
SOLD NOTE
Name of Purchaser (Transferee): CENTRAL GOLD WORLDWIDE LIMITED
------------------------------------------------
Address: X.X. XXX 000, XXXX XXXX, XXXXXXX, XXXXXXX XXXXXX XXXXXXX
-----------------------------------------------------------------------
Name of Company in which the shares to be transferred:
APPLICA DURABLE MANUFACTURING LIMITED
--------------------------------------------------------------------------------
Number of Shares: 1,263,600 CLASS A SHARES of par value HK$50.00 each
--------------------------- -----------
Consideration Received: US$27,174,777.00
--------------------------------------------------------
For and on behalf of
PPC INDUSTRIES LIMITED
DIRECTOR
--------------------------------
(Transferor)
Date:
-------------------------------------------------------------------------------
BOUGHT NOTE
Name of Seller (Transferor): PPC INDUSTRIES LIMITED
---------------------------------------------------
Address: CITCO BUILDING, XXXXXXX'X XXX, PO BOX 622, ROAD TOWN,
-----------------------------------------------------------------------
TORTOLA, BRITISH VIRGIN ISLANDS
-----------------------------------------------------------------------
Name of Company in which the shares to be transferred:
APPLICA DURABLE MANUFACTURING LIMITED
--------------------------------------------------------------------------------
Number of Shares: 1,263,600 CLASS A SHARES of par value HK$50.00 each
--------------------------- -------------
Consideration Paid: US$27,174,777.00
------------------------------------------------------------
For and on behalf of
Central Gold Worldwide Limited
DIRECTOR
--------------------------------
(Transferee)
Date:
INSTRUMENT OF TRANSFER
I (We), : PPC INDUSTRIES LIMITED
of : Citco Building, Xxxxxxx'x Xxx,
PO Box 622, Road Town,
Tortola, British Virgin Islands
in consideration of the Sum of Dollars : US$27,174,777.00
paid to me (us) by : CENTRAL GOLD WORLDWIDE LIMITED
occupation : corporation
of : X.X. Xxx 000, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
(hereinafter called "the said transferee") do hereby transfer to the said
transferee the 1,263,600 fully paid Class A Shares, standing in my (our) name in
the Register of APPLICA DURABLE MANUFACTURING LIMITED to hold unto the said
transferee, his executors, administrators or assigns, subject to the execution
hereof. And I (we) the said transferee do hereby agree to take the said Share(s)
subject to the same conditions.
Witness our hands the day of
Witness to the signature(s) ) For and on behalf of
of ) PPC INDUSTRIES LIMITED
Name: )
Address: )
)
) ---------------------
) Authorised Signature(s)
)
------------------------------- ) --------------------------------
Signature of Witness Signature of TRANSFEROR
Witness to the signature(s) ) For and on behalf of
of ) CENTRAL GOLD
Name: ) WORLDWIDE LIMITED
Address: )
)
)
) ---------------------
) Authorised Signature(s)
)
------------------------------- ) --------------------------------
Signature of Witness Signature of TRANSFEREE
APPLICA DURABLE MANUFACTURING LIMITED
(Incorporated in Hong Kong)
SOLD NOTE
Name of Purchaser (Transferee): CENTRAL GOLD WORLDWIDE LIMITED
------------------------------------------------
Address: X.X. XXX 000, XXXX XXXX, XXXXXXX, XXXXXXX XXXXXX XXXXXXX
-----------------------------------------------------------------------
Name of Company in which the shares to be transferred:
APPLICA DURABLE MANUFACTURING LIMITED
--------------------------------------------------------------------------------
Number of Shares: 27,522 CLASS B SHARES of par value HK$50.00 each
--------------------- ------------
Consideration Received: US$591,883.85
--------------------------------------------------------
For and on behalf of
PPC INDUSTRIES LIMITED
DIRECTOR
--------------------------------
(Transferor)
Date:
--------------------------------------------------------------------------------
BOUGHT NOTE
Name of Seller (Transferor): PPC INDUSTRIES LIMITED
---------------------------------------------------
Address: CITCO BUILDING, XXXXXXX'X XXX, PO BOX 622, ROAD TOWN,
-----------------------------------------------------------------------
TORTOLA, BRITISH VIRGIN ISLANDS
-----------------------------------------------------------------------
Name of Company in which the shares to be transferred:
APPLICA DURABLE MANUFACTURING LIMITED
--------------------------------------------------------------------------------
Number of Shares: 27,522 CLASS B SHARES of par value HK$50.00 each
----------------------- ----------
Consideration Paid: US$591,883.85
------------------------------------------------------------
For and on behalf of
Central Gold Worldwide Limited
DIRECTOR
--------------------------------
(Transferee)
Date:
INSTRUMENT OF TRANSFER
I (We), : PPC INDUSTRIES LIMITED
of : Citco Building, Xxxxxxx'x Xxx,
PO Box 622, Road Town,
Tortola, British Virgin Islands
in consideration of the Sum of Dollars : US$591,883.85
paid to me (us) by : CENTRAL GOLD WORLDWIDE LIMITED
occupation : corporation
of : X.X. Xxx 000, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
(hereinafter called "the said transferee") do hereby transfer to the said
transferee the 27,522 fully paid Class B Shares, standing in my (our) name in
the Register of APPLICA DURABLE MANUFACTURING LIMITED to hold unto the said
transferee, his executors, administrators or assigns, subject to the execution
hereof. And I (we) the said transferee do hereby agree to take the said Share(s)
subject to the same conditions.
Witness our hands the day of
Witness to the signature(s) ) For and on behalf of
of ) PPC INDUSTRIES LIMITED
Name: )
Address: )
)
) ---------------------
) Authorised Signature(s)
)
------------------------------- ) ---------------------------------
Signature of Witness Signature of TRANSFEROR
Witness to the signature(s) ) For and on behalf of
of ) CENTRAL GOLD
Name: ) WORLDWIDE LIMITED
Address: )
)
)
) ---------------------
) Authorised Signature(s)
)
------------------------------- ) ---------------------------------
Signature of Witness Signature of TRANSFEREE
APPLICA DURABLE MANUFACTURING LIMITED
(Incorporated in Hong Kong)
SOLD NOTE
Name of Purchaser (Transferee): CENTRAL GOLD WORLDWIDE LIMITED
------------------------------------------------
Address: X.X. XXX 000, XXXX XXXX, XXXXXXX, XXXXXXX XXXXXX XXXXXXX
-----------------------------------------------------------------------
Name of Company in which the shares to be transferred:
APPLICA DURABLE MANUFACTURING LIMITED
--------------------------------------------------------------------------------
Number of Shares: 9,234 CLASS B SHARES of par value HK$50.00 each
----------------------- -----------
Consideration Received: US$198,585.00
--------------------------------------------------------
For and on behalf of
REMDALE INVESTMENTS
LIMITED
DIRECTOR
--------------------------------
(Transferor)
Date:
--------------------------------------------------------------------------------
BOUGHT NOTE
Name of Seller (Transferor): REMDALE INVESTMENTS LIMITED
---------------------------------------------------
Address: CITCO BUILDING, XXXXXXX'X XXX, PO BOX 622, ROAD TOWN,
-----------------------------------------------------------------------
TORTOLA, BRITISH VIRGIN ISLANDS
-----------------------------------------------------------------------
Name of Company in which the shares to be transferred:
APPLICA DURABLE MANUFACTURING LIMITED
--------------------------------------------------------------------------------
Number of Shares: 9,234 CLASS B SHARES of par value HK$50.00 each
---------------------- ----------
Consideration Paid: US$198,585.00
------------------------------------------------------------
For and on behalf of
Central Gold Worldwide Limited
DIRECTOR
--------------------------------
(Transferee)
Date:
INSTRUMENT OF TRANSFER
I (We), : REMDALE INVESTMENTS LIMITED
of : Citco Building, Xxxxxxx'x Xxx,
PO Box 622, Road Town,
Tortola, British Virgin Islands
in consideration of the Sum of Dollars : US$198,585.00
paid to me (us) by : CENTRAL GOLD WORLDWIDE LIMITED
occupation : corporation
of : X.X. Xxx 000, Xxxx Xxxx,
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
(hereinafter called "the said transferee") do hereby transfer to the said
transferee the 9,234 fully paid Class B Shares, standing in my (our) name in the
Register of APPLICA DURABLE MANUFACTURING LIMITED to hold unto the said
transferee, his executors, administrators or assigns, subject to the execution
hereof. And I (we) the said transferee do hereby agree to take the said Share(s)
subject to the same conditions.
Witness our hands the day of
Witness to the signature(s) ) For and on behalf of
of ) REMDALE INVESTMENTS
Name: ) LIMITED
Address: )
)
)
) ---------------------
) Authorised Signature(s)
)
------------------------------- ) --------------------------------
Signature of Witness Signature of TRANSFEROR
Witness to the signature(s) ) For and on behalf of
of ) CENTRAL GOLD
Name: ) WORLDWIDE LIMITED
Address: )
)
)
) ---------------------
) Authorised Signature(s)
)
------------------------------- ) --------------------------------
Signature of Witness Signature of TRANSFEREE
