ASSET PURCHASE AGREEMENT dated December 10, 2003 between
Exhibit 2.1
dated December 10, 2003
between
Xxxxxxx Technologies SA, rte xx Xxxxxxx 65,1728 Rossens, Switzerland,
(hereinafter referred to as “Xxxxxxx”)
and
Metar SA en constitution, ch. de la Xxxxxxxx 0, 0000 Xxxxxx, Xxxxxxxxxxx,
(hereinafter referred to as “Metar”)
regarding
the assets and liabilities of Xxxxxxx’x capacitor winding machine business
(hereinafter referred to as the “Metar Business”)
PRELIMINARY
WHEREAS, Xxxxxxx is specialized in energy storage components and has 3 business units, namely the production of (i) ultra capacitors, (ii) high volume capacitors and (iii) capacitor winding machines;
WHEREAS, a separate legal entity named Metar SA has been established by Xxxxx Xxxxxx;
WHEREAS, Metar’s corporate purpose is the production of electrical and automatic machines and equipment of all kinds in the field of the machine industry;
WHEREAS, Metar’s share capital amounts to CHF 100’000. , divided into 10’000 fully paid in registered shares with a par value of CHF 10. each;
WHEREAS, Xxxxxxx desires to sell and Metar to acquire the Metar Business;
NOW, THEREFORE, the Parties to this agreement agree as follows:
Article 1: Object
(1) Subject to the terms and conditions of this agreement, Xxxxxxx hereby undertakes to sell, assign and transfer the assets and the liabilities of the Metar Business to Metar as hereinafter defined.
(2) In particular, the following property, assets, objects, intellectual property rights and other rights shall be sold, assigned and transferred, provided that they belong to the Metar Business:
(i) all equipments, machines, installations, plant facilities and tools, including spare and appending parts, and all objects of the fixed assets which are located on the site in Matran;
(ii) all raw materials and supplies, products, inventory and packing material which are located on the site in Matran;
(iii) all intellectual property rights in connection with the Metar Business, including but not limited to trade name; expertise, copyrights, trade secrets, proprietary information, models, inventions, know-how, processes and equipments;
(iv) all claims which entitle to receive intellectual property rights or licenses based on an agreement or an employment relationship;
(v) all other fixed assets and objects relating to the Metar Business;
(vi) all documents and files relating to the hereinbefore stated assets and the agreements listed in art. 1 para. 5.
(3) The work in progress relating to the Metar Business is excluded from this Agreement and shall remain with Xxxxxxx.
(4) Metar hereby agrees to purchase and to receive the assets of the Metar Business from Xxxxxxx.
(5) Metar shall assume the following liabilities relating to the Metar Business and take over the following agreements and be solely responsible for the due fulfillment thereof:
(i) all employment agreements with the employees listed in Attachment 1;
(ii) all warrantee obligations relating to the Metar Business;
(iii) all purchase and supply agreements relating to the Metar Business and which are not excluded according to Attachment 2.
(6) Any other liability relating to the Metar Business shall remain with Xxxxxxx.
(7) In case any contracting party refuses to release Xxxxxxx from the obligations arising out of or in connection with the transferred agreement, Xxxxxxx herewith assigns, to the extent possible, all rights in relation with the respective agreements to Metar and Metar undertakes to assume the obligations.
3
Article 2: Purchase Price
(1) The purchase price for the Metar Business amounts to CHF 402’500. — i.e. CHF 135’000. — for the fixed assets (as listed in art. 2.2.i, 2.2.iii, 2.2.iv and 2.2.v) and CHF 300’000. — for the inventory (as listed in art. 2.2.ii) minus CHF 32’500. — for the warrantee obligations. The net purchase price is payable on or before Closing Date.
(2) The purchase price for the inventory can be adjusted in case an evaluation as per December 31, 2003 reveals that the value of the inventory is 10% lower or higher than CHF 300’000. — according to the following formula:
(i) 80% of the book value if the turnover ratio for the respective item is higher than 5;
(ii) 70% of the book value if the turnover ratio for the respective item is between 4 and 5;
(iii) 60% of the book value if the turnover ratio for the respective item is between 3 and 4;
(iv) 50% of the book value if the turnover ratio for the respective item is between 2 and 3;
(v) 20% of the book value if the turnover ratio for the respective item is between 1 and 2;
(vi) 10% of the book value if the turnover ratio for the respective item is between 0.5 and 1; and
(vii) 0% of the book value if the turnover ratio for the respective item is of less than 0.5
(3) The book value of the inventory is enclosed as Attachment 3.
Article 3: Closing Date
(1) The Closing Date of the present Agreement shall be on or before December 31, 2003.
(2) On Closing Date, Metar shall deliver to Xxxxxxx a certificate according to which the net purchase price of CHF 402’500. — has been transferred to Xxxxxxx’x bank account no. 286161-11 with Crédit Suisse Bank in Fribourg.
4
(3) On Closing Date, Xxxxxxx shall deliver to Metar a certificate signed by its president according to which the sale of the Metar Business to Metar has been approved by Xxxxxxx’x Board of Directors.
Article 4: Transfer Date
(1) The Parties agree that the Metar Business be sold assigned and transferred with effect as of December 31, 2003 (hereinafter referred to as the “Transfer Date”). All rights, benefits and risks with regard to the Metar Business shall vest with Metar as per Transfer Date.
(2) Accordingly, all payables due to material received before Transfer Date is the obligations of Xxxxxxx and all receivables resulting from machines shipped before Transfer Date or relating to the machines listed in art. 6 of this Agreement are owned by Xxxxxxx.
(3) The employment liabilities not assumed by Xxxxxxx as per Transfer Date and to be assumed by Metar after Transfer Date based on the provisions of the Swiss Code of Obligations shall be reimbursed by Xxxxxxx to Metar.
Article 5: Representations and Guaranties
(1) With respect to the Metar Business, Xxxxxxx represents and warrants:
(i) that Xxxxxxx is in good standing;
(ii) that Xxxxxxx has good and valid title to the object of this Agreement and that the Metar assets are free and clear of any rights, privileges, pledges, charges or any other encumbrances in favor of third parties and Xxxxxxx may freely dispose of any interest in the assets without any limitations or restrictions;
(iii) that Metar will acquire full title on the Metar assets together with all rights and benefits attached thereto;
(iv) that no circumstances, including but not limited to pending or threatened actions or claims, have occurred which may have an adverse effect on the Metar Business or their
5
value and that the Metar Business has been manages in the normal course of business since September 30, 2003., i.e. the date of the last interim financial statement; and
(v) that the Metar Business, in particular the inventory and the work in progress, have been and will continue to be managed in the normal course of business until Closing Date.
(2) Xxxxxxx shall not be liable under this Agreement for any undertakings or warranties other than those stipulated in this article 5.
Article 6: Covenants
(1) Xxxxxxx shall not directly or indirectly engage into any business activity which competes with the Metar Business as per Closing Date. Metar agrees to refrain from engaging into a business activity which competes with Xxxxxxx’x business as per Closing Date.
(2) In case of any breach of this non–competition clause by either Party, the other Party may, in addition to any compensation for damages, request the elimination of the violation.
(3) Metar agrees to assist Xxxxxxx in the due and final execution of the work in progress which is excluded from this Agreement and remains with Xxxxxxx. The commercial terms for Metar’s assistance are as follows:
|
|
|
Customer |
|
Machine: |
|
Compensation: |
|
|
|
|
|
|
|
|
|
|
|
(i) |
|
Wima |
|
Twincap |
|
CHF 5’000. —; |
|
|
|
|
|
|
|
|
|
|
|
(ii) |
|
Icar |
|
Jumbolino |
|
CHF 6’500. —; |
|
|
|
|
|
|
|
|
|
|
|
(iii) |
|
Duracell |
|
M301 Batt |
|
CHF 33’300. — and 3 return flight tickets to customer site; |
|
|
|
|
|
|
|
|
|
|
|
(iv) |
|
Metalect |
|
Jumbolino |
|
CHF 48’700. — and one return flight ticket to customer site; |
|
|
|
|
|
|
|
|
|
|
|
(v) |
|
Sorrento |
|
Jumbolino |
|
CHF 82’700. — and one return flight ticket to customer site |
|
(4) The parties agree that the agreed compensation shall be fixed. Payment of the compensation shall be made by Xxxxxxx to Metar within 15 days upon receipt by Xxxxxxx of the customer’s final or pro-rata payment in accordance with the customer’s payment scheme.
6
Article 7: Taxes and Costs
(1) Costs, fees and taxes related to this Agreement shall be borne by the party which incurred such costs, fees and taxes.
Article 8: Applicable Law and Jurisdiction
(1) This Agreement shall be governed by and interpreted in accordance with the laws of Switzerland.
(2) Any dispute arising out of or in connection with the present Agreement, including disputes regarding its conclusion, binding effect, amendment, and termination, shall be exclusively brought before the ordinary courts of the canton of Fribourg, Switzerland, venue being Fribourg.
Article 9: Miscellaneous
(1) Should any of the provisions or articles of this agreement be or become void or be held invalid, all other provisions shall remain in full force and effect and the void and/or invalid provision shall be replaced by a valid provision which shall accomplish as nearly as possible the purpose and the intent of the void and/or invalid provision.
(2) This Agreement contains the entire understanding between the Parties relating to the subject matter contained herein and cancels and supersedes any prior understanding and agreement between the Parties with respect thereto. Any changes, additions or amendments to the present Agreement shall be made in writing in order to be valid.
(3) Any notification to be made in relation with this Agreement shall be validly made by registered letter to the addresses according to page 1 of this Agreement.
(4) The Parties agree to keep completely secret the terms of this Agreement to the extent that they are not compelled by law or commercial practice to inform third parties, such as, but not limited to, directors, shareholders, authorities, etc.
(5) The employees within the Metar Business shall be informed concerning the transaction pursuant to this Agreement and the information provided is to be agreed upon by the Parties as to
7
form, time and substance. No public announcement or press release concerning this transaction shall be made by the Parties without the prior consent or approval of the other Party.
(6) The rights under this Agreement are not assignable or transferable without the prior written consent of the other party.
|
Rossens, December 10, 2003 |
|
|
||
|
Place and Date: |
|
|||
|
|
|
|||
|
|
|
|||
|
/s/Xxxxx Xxxxx / Xxxxxxx Xxxxxxxx |
|
/s/Xxxxx Xxxxxx / Xxxxx Xxxxxxx |
|
|
|
Xxxxxxx Technologies SA |
Metar SA en constitution |
|||
8
Attachment 1
List of Employees
1. XXXX Xxxx André
2. XXXXX Xxxxxxxxx
3. XXXXX Xxxxxx
4. XXXXXXXX Xxxxxx
5. CORPATAUX Michel
6. XXXXXXX Xxxx
7. XXXXXXXXX Xxxxxxx
8. XXXXXXX Xxxxxxx
9. Xxxxx Xxxxx
10. XXXXXXX Xxxxx
11. XXXXX Xxxxxxxx
12. XXXXXXXXXXX xxxxxx
13. XXXXXXX Xxxxxxxx
14. SCIBOZ Xxxxxxx
15. XXXXXXXXX Xxxxx
16. Xxxxxxxx xxxx-Xxxxxx
17. XXXXXX Xxxxxxx
18. WAEBER Guy
19. XXXXXXX Xxxxxx
Attachment 2
|
SERVICE DES ACHATS |
|
|
|
|
melar machines |
|
Attachment 2 |
|
|
Xxxxxxx Technologies |
|
LIST OF THE EXCLUDED PURCHASE AND SUPPLY AGREEMENTS |
|
|
Fournisseur |
|
No. |
|
No article |
|
Désignation |
|
Volume |
|
Solde |
|
Prix |
|
Prix |
|
Xxxxx |
|
Date de |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amep SA |
|
MCE-903902 |
|
305-642 |
|
Coulisse |
|
00 |
|
0 |
|
000 |
|
000 |
|
x |
|
00.09.00 |
|
|
Credimex |
|
MCE-905985 |
|
751-467 |
|
Cylindre airpot |
|
80 |
|
32 |
|
69.5 |
|
2’224 |
|
S A V |
|
19.03.01 |
|
|
Credimex |
|
MCE-905970 |
|
751-473 |
|
Verin |
|
120 |
|
70 |
|
87.8 |
|
6’146 |
|
|
|
16.03.01 |
|
|
Xxxxxxxxxxxx XX |
|
MCE-905884 |
|
304-974 |
|
Vis à pas normal |
|
50 |
|
14 |
|
175 |
|
2’450 |
|
|
|
14.03.01 |
|
|
GTK Timex Group SA |
|
MCE-905977 |
|
304-961 |
|
Roue de friction |
|
50 |
|
30 |
|
110 |
|
3’300 |
|
|
|
16.03.01 |
|
|
GTK Timex Group SA |
|
MCE-900229 |
|
19716.4 |
|
Xxxxxxx |
|
60 |
|
19 |
|
30 |
|
570 |
|
|
|
08.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900274 |
|
17016.4 |
|
Xxxxxxx |
|
30 |
|
10 |
|
88.4 |
|
884 |
|
|
|
09.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900279 |
|
17033.4 |
|
Xxxxxxx |
|
120 |
|
60 |
|
75.4 |
|
4’524 |
|
|
|
09.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900249 |
|
13985.4 |
|
Xxxxxxx |
|
300 |
|
280 |
|
30 |
|
8’400 |
|
|
|
09.11.99 |
|
|
GTK Timex Group SA |
|
MCE-902474 |
|
5410.4 |
|
Xxxxxxx |
|
60 |
|
5 |
|
48.4 |
|
242 |
|
|
|
09.11.99 |
|
|
GTK Timex Group SA |
|
MCE-903686 |
|
17161.4 |
|
Xxxxxxx |
|
30 |
|
20 |
|
59.5 |
|
1’190 |
|
|
|
25.08.00 |
|
|
GTK Timex Group SA |
|
MCE-900236 |
|
408-748 |
|
Xxxxxxx |
|
10 |
|
10 |
|
64 |
|
640 |
|
|
|
08.11.99 |
|
|
GTK Timex Group SA |
|
MCE-905976 |
|
304-960 |
|
Xxxxxxx |
|
30 |
|
28 |
|
140 |
|
3’920 |
|
|
|
16.03.01 |
|
|
GTK Timex Group SA |
|
MCE-900237 |
|
408-749 |
|
Xxxxxxx |
|
10 |
|
10 |
|
73.7 |
|
737 |
|
|
|
08.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900238 |
|
000-000-0 |
|
Xxxxxxx |
|
10 |
|
10 |
|
65 |
|
650 |
|
|
|
08.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900239 |
|
409-345 |
|
Xxxxxxx |
|
10 |
|
10 |
|
73.8 |
|
738 |
|
|
|
08.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900244 |
|
42.7869.4 |
|
Xxxxxxx |
|
20 |
|
10 |
|
72.2 |
|
722 |
|
|
|
08.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900248 |
|
5939.4 |
|
Xxxxxxx |
|
10 |
|
10 |
|
68.5 |
|
685 |
|
|
|
08.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900264 |
|
14849.4 |
|
Xxxxxxx |
|
30 |
|
30 |
|
48.6 |
|
1’458 |
|
|
|
09.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900277 |
|
17032.4 |
|
Xxxxxxx |
|
30 |
|
14 |
|
54 |
|
756 |
|
|
|
09.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900280 |
|
17058.4 |
|
Xxxxxxx |
|
20 |
|
10 |
|
97.5 |
|
975 |
|
|
|
09.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900281 |
|
17070.4 |
|
Xxxxxxx |
|
20 |
|
5 |
|
39.5 |
|
198 |
|
|
|
09.11.99 |
|
|
GTK Timex Group SA |
|
MCE-900570 |
|
410-585 |
|
Xxxxxxx |
|
200 |
|
200 |
|
55 |
|
11’000 |
|
|
|
06.12.99 |
|
|
Fournisseur |
|
No. |
|
No article |
|
Désignation |
|
Volume |
|
Solde |
|
Prix |
|
Prix |
|
Xxxxx |
|
Date de |
|
|
Regatron AG |
|
MCE-904383 |
|
795-016 |
|
Servoregler |
|
25 |
|
3 |
|
1743 |
|
5’229 |
|
|
|
27.10.00 |
|
|
Regatron AG |
|
MCE-904383 |
|
FLF0734311 |
|
Servomoleur |
|
25 |
|
2 |
|
1098 |
|
2’196 |
|
|
|
27.10.00 |
|
|
Regatron AG |
|
MCE-904383 |
|
795-017 |
|
Leislungskabel |
|
25 |
|
9 |
|
57 |
|
513 |
|
|
|
27.10.00 |
|
|
Regatron AG |
|
MCE-904383 |
|
795-019 |
|
Fiche kil |
|
25 |
|
6 |
|
32 |
|
192 |
|
|
|
27.10.00 |
|
|
Regatron AG |
|
MCE-904383 |
|
795-018 |
|
Cable encodeur |
|
25 |
|
5 |
|
130 |
|
650 |
|
|
|
27.10.00 |
|
|
Xxxxxxxx XX |
|
MCE-904034 |
|
2.24.250.4 |
|
Couleaux |
|
150 |
|
100 |
|
9.25 |
|
925 |
|
|
|
21.09.00 |
|
|
Xxxxxxxx XX |
|
MCE-907553 |
|
409-597 |
|
Couleaux |
|
150 |
|
35 |
|
4.9 |
|
172 |
|
|
|
29.08.01 |
|
|
Xxxxxxxx XX |
|
MCE-904032 |
|
14155.4 |
|
Couleaux |
|
500 |
|
200 |
|
9.1 |
|
1’820 |
|
|
|
21.09.00 |
|
|
Xxxxxxxx XX |
|
MCE-904073 |
|
409-073 |
|
Couleaux |
|
75 |
|
0 |
|
10.75 |
|
— |
|
|
|
14.03.01 |
|
|
Xxxxxxxx XX |
|
MCE-904036 |
|
408-505 |
|
Couleaux |
|
150 |
|
49 |
|
10.1 |
|
495 |
|
|
|
21.09.00 |
|
|
Xxxxxxxx XX |
|
MCE-000939 |
|
25827.4 |
|
Couleaux |
|
100 |
|
50 |
|
11.8 |
|
590 |
|
|
|
15.04.01 |
|
|
Xxxxxxxxxxxx |
|
MCE-905958 |
|
729-246 |
|
Rollischplallen |
|
30 |
|
30 |
|
158 |
|
4’740 |
|
|
|
14.03.01 |
|
|
Xxxxxxxxxxxx |
|
MCE-905929 |
|
729-245 |
|
Table sur xxxx. |
|
10 |
|
4 |
|
414 |
|
1’656 |
|
|
|
14.03.01 |
|
|
Xxxxxx Bachmann |
|
MCE-904373 |
|
14112.4 |
|
Roue dentée |
|
25 |
|
11 |
|
169 |
|
1’859 |
|
|
|
25.10.00 |
|
|
SMC |
|
MCE-907220 |
|
XX0000 |
|
Xxxxxxxxxx ITV |
|
10 |
|
4 |
|
2057 |
|
8’228 |
|
|
|
01.07.01 |
|
|
Xxxxxx Hilbrunn |
|
MCE-906244 |
|
305-358 |
|
Arbre |
|
60 |
|
60 |
|
148 |
|
8’880 |
|
|
|
17.04.01 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL: |
|
|
|
|
|
|
|
82’473 |
|
|
|
|
|
Rotation MCE 1M et 5M du 01.10.02 au 30.09.03
BOOK VALUE INVENTORY Attachment 3
|
Taux de rotation |
|
Valeur stock 1M et 5M |
|
|
|
|
|
|
|
0 |
|
|
1’943 |
|
|
|
|
|
|
Vide |
|
|
167’675 |
|
|
|
|
|
|
>0 à <0.5 |
|
|
127’304 |
|
|
|
0 |
% |
|
de 0.5 à <1 |
|
|
53’542 |
|
5’354.16 |
|
10 |
% |
|
de 1 à <2 |
|
|
73’450 |
|
14’690.08 |
|
20 |
% |
|
de 2 à <3 |
|
|
86’332 |
|
43’166.23 |
|
50 |
% |
|
de 3 à <4 |
|
|
57’148 |
|
34’288.73 |
|
60 |
% |
|
de 4 à <5 |
|
|
70’444 |
|
49’310.63 |
|
70 |
% |
|
>5 |
|
|
185’281 |
|
148’224.44 |
|
80 |
% |
|
Total stock actif |
|
823’118.38 |
|
295’034.27 |
|
|
|
|
|
Réserves |
|
168’000.00 |
|
|
|
|
|
|
|
Total stk inventàitre |
|
655’118.38 |
|
|
|
|
|
|
