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Title: |
Business and Asset Purchase Agreement |
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Date: |
2004 |
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$40 |
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#384003 |
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DATED 15 November 2004
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BYCOSIN AB |
(1) | |
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PESDO SWEDCAP HOLDINGS AB |
(2) | |
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OCTEL PETROLEUM SPECIALTIES LIMITED |
(3) | |
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and |
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H?KAN BYSTR?M AND OTHERS |
(4) | |
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BUSINESS AND ASSET PURCHASE AGREEMENT relating to the sale and purchase of certain of the business and the supply and distribution of certain power products to certain territories as carried on by Bycosin AB |
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Hammonds
Trinity Court 16 John Dalton Street Manchester M60 8HS DX 14347 Manchester 1
Telephone +44 (0)870 839 0000 Fax +44 (0)870 839 5001
Offices and Associated Offices Aosta Berlin Birmingham Brussels Hong Kong Leeds London Madrid Manchester Milan Munich Paris Rome Turin
Website www.hammonds.com
Reference SPL/ADSP/ASS.14-5047
CONTENTS
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1 |
DEFINITIONS AND INTERPRETATION | 1 | ||
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2 |
SALE AND PURCHASE | 12 | ||
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3 |
CONSIDERATION | 15 | ||
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4 |
COMPLETION | 16 | ||
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5 |
POST-COMPLETION OBLIGATIONS | 18 | ||
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6 |
WARRANTIES | 21 | ||
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7 |
REVERSE WARRANTY | 22 | ||
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8 |
RESTRICTIONS ON THE SELLER?S FUTURE BUSINESS ACTIVITIES | 22 | ||
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9 |
THE BUYER?S RESTRICTIVE COVENANTS | 24 | ||
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10 |
SELLER?S GUARANTEE | 25 | ||
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11 |
BUYER?S GUARANTEE | 26 | ||
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12 |
CONFIDENTIALITY AND USE OF NAMES | 26 | ||
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13 |
PRE-EMPTION RIGHTS | 27 | ||
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14 |
WAIVER OF ENVIRONMENTAL WARRANTIES | 27 | ||
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15 |
INTERCOMPANY BALANCES | 27 | ||
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16 |
TRANSFERRED LIABILITIES | 28 | ||
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17 |
APPORTIONMENTS | 28 | ||
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18 |
CONTRACTS | 29 | ||
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19 |
THIRD PARTY CLAIMS | 30 | ||
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20 |
SELLER?S BOOK RECEIVABLES | 30 | ||
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21 |
EMPLOYEES | 31 | ||
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22 |
VALUE ADDED TAX | 31 | ||
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23 |
ANNOUNCEMENTS | 32 | ||
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24 |
GENERAL | 32 | ||
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25 |
THIRD PARTY RIGHTS | 33 | ||
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26 |
ASSIGNMENT | 33 | ||
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27 |
ENTIRE AGREEMENT | 33 | ||
i
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28 |
NOTICES |
33 | ||
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29 |
COUNTERPARTS |
34 | ||
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30 |
GOVERNING LAW AND JURISDICTION |
34 | ||
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SCHEDULE 1 BUYER?S GUARANTORS |
36 | |||
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SCHEDULE 2 WARRANTIES |
37 | |||
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SCHEDULE 3 WARRANTY LIMITATIONS |
50 | |||
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SCHEDULE 4 PRE-EMPTION RIGHTS |
54 | |||
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SCHEDULE 5 SELLER?S PREMISES AND SUBSIDIARIES? PREMISES |
57 | |||
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SCHEDULE 6 PROPERTY TRANSFER PROVISIONS |
58 | |||
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SCHEDULE 7 INTELLECTUAL PROPERTY |
59 | |||
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SCHEDULE 8 SELLER?S LEASED ASSETS, SELLER?S LEASING AGREEMENTS, SUBSIDIARIES? LEASED ASSETS AND SUBSIDIARIES? LEASING AGREEMENTS |
60 | |||
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SCHEDULE 9 SELLER?S EMPLOYEES AND SUBSIDIARIES? EMPLOYEES |
61 | |||
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SCHEDULE 10 SELLER?S CONTRACTS |
62 | |||
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SCHEDULE 11 SUBSIDIARIES |
63 | |||
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SCHEDULE 12 FORM OF GUARANTEE |
64 | |||
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SCHEDULE 13 STOCK TAKE |
65 | |||
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SCHEDULE 14 EXCLUDED CONTRACTS |
66 | |||
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SCHEDULE 15 INCLUDED ASSETS |
67 | |||
ii
| DATE OF BUSINESS AND ASSET PURCHASE AGREEMENT | 15 November 2004 |
PARTIES
| (1) | BYCOSIN AB a company incorporated in Sweden (Company Number: 556235-8902) whose registered office is at Box 627, 651 14 Karlstad (the ?Seller?) |
| (2) | PESDO SWEDCAP HOLDINGS AB, a company incorporated in Sweden (Company Number 556618-7190) whose registered office is at Elfdaliusgatan 8, 654 55 Karlstad (the ?Buyer?) |
| (3) | OCTEL PETROLEUM SPECIALTIES LIMITED, a company incorporated in England (Company Number 03316334) whose registered office is at Global House, Bailey Lane, Manchester Airport, Manchester, M90 4AA (the ?Seller?s Guarantor?) |
| (4) | THOSE PERSONS whose names and addresses are set out in Schedule 1 (the ?Buyer?s Guarantors?). |
INTRODUCTION
| A | The Seller carries on the Business as a going concern. |
| B | The Seller has agreed to sell the Business and the Seller?s Assets to the Buyer on the terms of this agreement. |
IT IS AGREED THAT:
| 1 | DEFINITIONS AND INTERPRETATION |
| 1.1 | In this agreement the following words and expressions shall have the following meanings. |
?ABL? shall mean the Swedish Companies Act (Sw. Aktiebolagslag (1975:1385))
?Advance Payments? means all amounts paid by the Seller or a Subsidiary on or before the Transfer Date in respect of goods or services to be supplied to the Business pursuant to any Seller?s Contract after the Transfer Date.
?Advance Receipts? means all amounts paid to the Seller on or before the Transfer Date in respect of goods or services to be supplied by the Business pursuant to any Seller?s Contract after the Transfer Date.
?Ball Mill Assets? means the ball mill (p?rlkvarn) leased assets.
?Business? means the Power Products Business, the Fertilizer Business and the Bycotest Business.
?Business Day? means any day (other than a Saturday, a Sunday or a public holiday) during which clearing banks are open for business in Sweden.
?Buyer?s Group? means the Buyer, any subsidiary of the Buyer, any holding company of the Buyer and any directly or indirectly held subsidiary of any holding company of the Buyer, from time to time.
1
?Buyer?s Territory? means Mexico and the Caribbean excluding Puerto Rico, Jamaica, Bahamas, Dominican Republic, Carriacou and Aruba.
?Bycotest? means the products for non-destructive testing, liquid penetrant testing and magnetic particle testing as produced by the Seller as at the Transfer Date.
?Bycotest Business? means the business of production, manufacture, sale, marketing and distribution of Bycotest as carried on by the Seller and the Subsidiaries as at the Transfer Date.
?Clariant Licence? means the licence, in the agreed form, to be made between OPSL and the Buyer pursuant to which OPSL will license the use of the Clariant Patent to the Buyer.
?Clariant Patent? means European Patent EP 0 938 534.
?Completion? means completion of the sale and purchase of the Business and the Seller?s Assets in accordance with clause 4.
?Completion Date? means the date of this agreement or such later date to which Completion is deferred pursuant to clause 4.1
?Conducting Media? means sewer systems, drains, sewers, trenches, pipes, conduits, sumps, flowlines and other conducting media.
?Confidential Business Information? means all or any information of a secret or proprietary or confidential nature (however stored) and not publicly known which is owned by the Seller or any of the Subsidiaries and which is used in or otherwise relates to the Business, including, without limitation, information relating to:
| (a) | the business methods, technical processes, corporate plans, management systems, finances, new business opportunities or development projects of the Business; or |
| (b) | the marketing or sales of any past or present or future products, goods or services of the Business including, without limitation, customer names and lists and other details of customers, sales targets, sales statistics, market share statistics, prices, market research reports and surveys and advertising and other promotional materials; or |
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