MINUTE OF AGREEMENT
between
TECHDYNE (EUROPE) LIMITED
and
SIMCLAR INTERNATIONAL LIMITED
MINUTE of AGREEMENT
between
TECHDYNE (EUROPE) LIMITED, incorporated in
Scotland under the Companies Acts with registered
number SC105568 and having its Registered Office
at 0, Xxxxx Xxxxx, Xxxxxxxxx, XX0 0XX ("the
Vendor")
and
SIMCLAR INTERNATIONAL LIMITED, incorporated under
the Companies Acts with registered number SC59937
and having its Registered Office at 0, Xxxxx
Xxxxx, Xxxxxxxxx, XX0 0XX ("the Purchaser")
--------------
WHEREAS
(A) The Vendor has for some time carried on business as Manufacturer
of Electronic Components ("the Business").
(B) The Purchaser and the Vendor are subsidiary companies of Simclar
International Holdings Limited incorporated under the Companies Acts
and having its Registered Office at 0, Xxxxx Xxxxx, Xxxxxxxxx.
(C) The Purchaser has agreed with the Vendor with effect from
commencement of business on 28th February 2002 ("the Transfer Date") to
purchase the trade and certain assets of the Business and to assume
some of the liabilities and obligations ("the Liabilities") of the
Vendor in connection with the Business.
NOW THEREFORE the parties HAVE AGREED and DO HEREBY AGREE as follows:-
1. Definitions and Interpretation
1.1 In this Agreement the following words shall have the meanings set
against them unless the context otherwise admits or requires:-
"Assets" all of the undertaking and assets of the Vendor
relating to or used in the Business referred to in
Clause 2 (and for the avoidance of doubt,
excluding the land and buildings owned by the
Vendor)
"Liabilities" those debts comprising Trade payables, sums due to
Techdyne Inc and to the Purchaser and other
creditors and accruals as detailed under the
heading "Transfer to Simclar" on the Schedule
annexed hereto (and for the avoidance of doubt,
excluding the land and buildings owned by the
Vendor)
"Contracts" the current contracts and engagements of the
Vendor
1.2 Reference to any statute or statutory provision includes a
reference to:
1.2.1 that statute or statutory provision as from time
to time amended, extended or
re-enacted or consolidated; and
1.2.2 all statutory instruments or orders made pursuant to it.
1.3 Words denoting the singular number only shall include the
plural and vice versa. Words denoting any gender include all
genders and words denoting persons shall include firms and
corporations and vice versa.
1.4 Unless the context otherwise requires, reference to any
clause, sub-clause or schedule is to a clause, sub-clause or
schedule (as the case may be) of or to this Agreement.
1.5 The headings in this Agreement are inserted for
convenience only and shall not affect the construction or
interpretation of this Agreement.
2. Sale and Purchase
The Vendor agrees to sell and the Purchaser agrees to purchase with
effect from the Transfer Date the Assets including without limitation:-
2.1.1 the manufacturing equipment;
2.1.2 the office equipment;
2.1.3 the production tools;
2.1.4 the computer equipment;
2.1.5 the computer software;
2.1.6 all cash in hand and at the Bank;
2.1.7 all trade and other receivables due to the Vendor at the
Transfer Date;
2.1.8 all rights and claims of the Vendor against third parties with
respect to the Business so far as the Vendor can assign the
same;
2.1.9 all intellectual property rights owned or used by the Vendor
in relation to the Business;
2.1.10 the benefit subject to the burden of the Contracts;
3. Consideration
3.1 The purchase price for the Assets ("the Consideration") shall
be:-
3.1.1 the sum equal to the aggregate value of the Assets
less the aggregate value of the Liabilities
determined in each case by reference to the Accounts
of the Vendor as at the Transfer Date adjusted as
shown on the Schedule annexed entitled "Techdyne
Europe Limited, Adjusted Balance Sheet" dated 20th
March 2002; and
3.1.2 the assumption by the Purchaser of the
Liabilities in accordance with this Agreement.
3.2 The amount of the Consideration determined in accordance
with Clause 3.1.1 shall be satisfied in cash at such time as
the Purchaser may decide and in the meantime shall remain
owing as a debt payable on demand and without interest.
4. Completion
4.1 Completion of the sale shall take place immediately
following execution of this Agreement when the Vendor shall
deliver to the Purchaser all of the physical Assets agreed to
be sold;
4.2 Risk and property in and title to the Assets shall pass to
the Purchaser on the Transfer Date;
4.3 The Vendor shall as soon as practicable after the
Transfer Date deliver to the Purchaser all transfers,
assignments and novations (if necessary) of the Assets
together with the relevant documents of title to give effect
to this Agreement.
5. Liabilities
The Purchaser agrees to purchase the Assets subject to and to assume
and discharge those liabilities owing by the Vendor in respect of the
Business subsisting at the Transfer Date and the Purchaser agrees to
indemnify the Vendor against all claims, demands, actions or other
proceedings in respect of such debts or liabilities.
6. Further Assurance and Contracts
6.1 The Vendor agrees and declares that it will after and
notwithstanding completion of the sale and purchase under this
Agreement execute and deliver any other documents and take any
other steps as shall reasonably be required from time to time
by the Purchaser to vest in the Purchaser as it may direct the
Assets.
6.2 Subject always to Clause 7.3 below, the Purchaser shall
after the Transfer Date carry out and complete for its own
account the Contracts to the extent that the same have not
been performed prior to the Transfer Date.
6.3 In so far as the benefits of the Contracts cannot
effectively be transferred by the Vendor to the Purchaser
except by way of novation or consent to the assignation from
the person, firm or company concerned:-
6.3.1 the Vendor and the Purchaser shall (if the
Purchaser so requires and at the expense
of the Purchaser) co-operate to do everything they
reasonably can to procure that the Contracts be
novated or assigned as aforesaid as soon as
reasonably practicable;
6.3.2 in the case of any assignation as aforesaid the
Purchaser shall undertake to indemnify the Vendor
against all costs, claims, liability and expenses
arising by reason of or in connection with the
non-performance or the defective or negligent
performance by the Purchaser of the Contracts
following such assignation;
6.3.3 unless and until any such Contracts shall be novated
or assigned as aforesaid the Vendor shall hold the
benefit of the said Contracts in trust for the
Purchaser and shall account to the Purchaser
accordingly in respect of any sums or other benefits
received by the Vendor in respect thereof and
otherwise act to the direction of the Purchaser and
its agents in all matters relating thereto, subject
to the Purchaser indemnifying the Vendor against any
action, claim, demand, proceedings, damage, expense,
charge, liability, cost or loss which the Vendor may
have made or brought against it or suffer or incur as
a consequence.
7. V.A.T.
7.1 The parties shall use all reasonable endeavours to
procure that the sale of the Assets is deemed to be a transfer
of a business as a going concern for the purposes of the Value
Added Tax Xxx 0000 Section 49 and the Value Added Tax (Special
Provisions) Order 1995 Article 5.
7.2 The Vendor shall forthwith deliver to the Purchaser
copies of all records of business for VAT purposes which are
required by the Act to be preserved by the Purchaser.
7.3 The Purchaser shall for a period of not less than six
years from the Transfer Date preserve the records delivered to
it by the Vendor and upon reasonable notice during business
hours make them available to the Vendor or its agents.
8. Costs
The costs of the Vendor and the Purchaser of and incidental to this
Agreement shall be borne by the Purchaser.
9. Governing Law
The Agreement shall be construed in accordance with and governed by
Scots Law: IN WITNESS WHEREOF
SIMCLAIR INTERNATIONAL LIMITED TECHDYNE (EUROPE) LIMITED
/s/ Xxxxxx Xxxxxxx /s/ J. Xxx Xxxxx
----------------------------------- ---------------------------
By: Xxxxxx Xxxxxxx By: J. Xxx Xxxxx
TECHDYNE EUROPE LIMITED
ADJUSTED BALANCE SHEET
Per accounts Transfer to Adjusted
at 28/2/02 Simclar net assets
(pound) (pound) (pound)
Manufacturing equipment 117,715 117,715
Office equipment 4,005 4,005
Land & buildings 450,393 0 450,393
Production tools 33,592 33,592
Computer equipment 5,267 5,267
Computer software 21,532 21,532
----------------
632,504
----------------
Finished goods 49,156 49,156
Trade receivables 246,456 246,456
Other receivables & prepayments 1,015 1,015
Due from Simclar International 0 0 182,111
VAT recoverable 8,716
Cash at bank 174,052 348,819
----------------
479,395
----------------
Trade payables -1,494 -1,494
Due to Techdyne, Inc -305,898 -206,863 -99,035
Due to Simclar International -265,011 -265,011
PAYE & NIC -1,611 -1,611
Other creditors & accruals -4,416 -4,416
----------------
-578,430
----------------
Net current assets -99,035
----------------
Bank loan -266,406 -266,406
---------------- ---------------- ----------------
Net assets 267,063 1,256,185 267,063
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20-Mar-02
