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EXHIBIT 10.1(d)
AGREEMENT
Between
Simex AS (Buyer)
Simex/NK Technologies Inc. (SX)
And
Odd Xxxxx Xxxxxxxxx (50 stocks)
Kare Xxxx Kongsmark (50 stocks)
Flash AS (50 stocks) (Sellers)
The following agreement has been entered into:
1. Object
1.1 The Seller will sell and the Buyer will buy 150 stocks in
Hordaror 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,-,
which is to be disbursed as follows:
2.1 Cash NOK 800.000,-.
2.2 13.513,- stocks (non-restricted) in SX. The Buyers are
informed about the restrictions attached to the stocks
concerning sales in the USA, compare, Attachment 1
3. Assignment date
The stock transfer will be done with effect from 20.12.98 (Assignment
date).
4. Settlement
4.1 The consideration is to be disbursed as follows, equal share
on each of the sellers:
4.1.1 For stock transfer NOK 800.000,- will be transferred
to the sellers' account.
4.1.2 15.01.99, at the latest, SX-stocks are to be issued,
13.515 stocks in all.
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4.1.3 If circumstances, which are covered under the
guarantee given by the sellers, are revealed,
compare item 5, the consideration shall be adjusted
according to the deduction regulation in item 6.
4.2 Xxxxx Xxxxxxxxxx owes Hordaror AS NOK 121.798,04. This loan
is to be settled by issuing 4115 stocks, which were supposed
to be issued to Flash AS, to Simex NK technologies Inc. Thus
the following stocks will be issued to the sellers:
4.2.1 Odd xxxxx Xxxxxxxxx, 4505 stocks.
4.2.2 Kare Kongsmark, 4505 stocks.
4.2.3 Flash AS, 390 stocks.
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 statements in appendix 2 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 the closing date of accounts, were nor
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 the closing date of accounts, 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 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.
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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 3.
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 4, 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 Assignment day. 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 5.
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 the closing
date of accounts, and that these assets will be in the
possession of the Company on the Assignment day.
5.16 That the Company's ownership and other rights are, and on the
Assignment day 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
Assignment day 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
Assignment day, 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.
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.
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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 6 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 the
closing date of the accounts have been limited to, and until
the day of Closing 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 on the closing date the
accounts, and that there has not or will not be given
completely or partly gratuitous outputs from the Company
after the closing date the accounts, 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 7,
and that these will continue to be in force on the Assignment
day.
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.
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 the
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closing date of the accounts, and that such disbursements
will not be made until the assignment day without written
approval from the Buyer.
5.29 That the transferred stock are free from encumbrances, and
that there do 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 8, 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
6.1 If the facts differs from what is guaranteed under item 5,
the Buyer may claim a price reduction equal to the effect of
the discrepancy on the balance sheet, or on the Company's
trading result.
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.
6.3 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 If nothing else is agreed with the Buyer in writing, the
Seller will not be able to engage in, take part in or be
economically interested in operations of any kind which the
Seller or any company in the same concern today operates. The
prohibition also covers indirect involvement via a company or
a group of companies and involvement in the management or
direction on others account. Stocks or parts owned by
underaged children of the Seller or the Seller's spouse,
aqualises with stocks owned by the Seller himself. The
prohibition do not apply to ownership in listed companies.
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, prior to 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 and the
Buyer.
10.2 If the Buyer fails to carry this out within the Assignment
date, this does not imply that the guarantees given by the
Seller is annulled.
This agreement is issued in duplicate, one to each of the parties.
Stavanger, 18.12.98
Odd Xxxxx Xxxxxxxxx (sign) Xxxxx Xxxxx (sign)
Flash AS, xxxxx xxxxxxxxxx (sign)
Kare Xxxx Kongsmark (sign)
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