Dutch Assets Sale and Transfer Agreement
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between
Alpha
Security Products B.V., a private limited liability company (besloten
vennootschap met beperkte aansprakelijkheid)
organised under the laws of the Netherlands, having its corporate
seat in
Hoofddorp, the Netherlands, and with office address at Saturnmusstraat,
212132 HG, Hoofddorp, the Netherlands,
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"Transferor"
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and
Checkpoint
Meto Benelux B.V., a private limited liability company (besloten
vennootschap met beperkte aansprakelijkheid)
organised under the laws of the Netherlands, having its corporate
seat in
Nieuwegein, the Netherlands, and with office address at ▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇
▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
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"Transferee" -
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each of them herein also referred to individually
as
a “Party”
and collectively as the “Parties”
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dated
1 November 2007
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LIST
OF ANNEXES:
Annex 3:
List
of
movable tangible assets, which the Transferor sells, and the Transferee
purchases;
Annex 4.1a: List
of
accounts receivable and other amounts due from third parties arising out of
the
conduct of the Dutch Acquired Business to be transferred;
Annex 4.1b): List
of
accounts receivable and other amounts due from third parties arising out of
the
conduct of the Dutch Acquired Business not to be transferred;
Annex 7.1: The
contracts including all rights and obligations resulting from the contracts
and
contractual offers (contractual relationships) of the Dutch Acquired
Business;
and
Annex 8.2: The
Transferor's employment relationships transferring to the
Transferee.
Preamble
(A) CHECKPOINT
SYSTEMS, INC., a Pennsylvania corporation (the “Purchaser”)
and
ALPHA SECURITY PRODUCTS, INC., an Ohio corporation have entered into an Asset
Purchase Agreement dated November 1, 2007 (the “Purchase
Agreement”),
whereby the Purchaser has agreed to purchase certain Acquired Assets and assume
the Assumed Liabilities of the Business (as defined in the Purchase Agreement).
The parties are aware of the contents of the Purchase Agreement and of the
fact
that these contents may affect them.
(B) The
Transferor is an direct subsidiary of Alpha Security Products, Inc. The
Transferee is an (indirect) subsidiary of Checkpoint Systems, Inc. Transferor
and/or the Transferee are third party beneficiaries to the Purschase Agreement
as set out in section 1.9 of the Purchase Agreement.
(C) The
Transferor owns the assets related to the Business in the Netherlands (the
“Dutch Acquired
Business”)
and
intends to sell and transfer the Dutch Acquired Business as provided for in
the
Purchase Agreement. It
is
agreed between parties that “the Transferred Assets” (Clause 3.1), “other
assets” being accounts receivable/ advertising material/ prepaid expenses
(Clause 4), books and records (Clause 5), contract rights (Clause 7), employment
relationships (Clause 8) and
permits
(Clause 9) are part of the Dutch Acquired Business.
(D) The
Purchaser has designated the Transferee to acquire the assets from the
Transferor in accordance with the terms of the Purchase Agreement.
(E) Therefore,
pursuant to the Purchase Agreement, the Transferor desires to sell, assign
and
transfer to the Transferee and the Transferee desires to purchase and acquire
from the Transferor all of the assets and to assume certain obligations, under
the terms and conditions hereinafter set forth.
NOW,
THEREFORE,
pursuant
to the terms and conditions of the Purchase Agreement, the
Parties hereto agree as follows:
| 1. |
Reference
to Purchase Agreement
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| 1.1 |
Unless
otherwise indicated, the terms used in this Agreement shall have
the
meanings attributed to them in the Purchase Agreement and all definitions
set forth in the Purchase Agreement shall also apply to this
Agreement.
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| 1.2 |
In
case of a conflict between this Agreement and the Purchase Agreement
the
following shall apply:
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| a) |
Subject
to clause b) below the Purchase Agreement shall prevail over this
Agreement;
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| b) |
Clauses
11
and 12.2
of
this Agreement shall prevail over the Purchase
Agreement.
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| 1.3 |
“Effective
Date”
as used in this Agreement shall have the meaning of “Closing Date” in the
Purchase Agreement, except that the effective time shall be deemed
to be
11:59pm local Netherland time.
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| 2. |
Sale
of the Dutch Acquired
Business
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| 2.1 |
The
Transferor hereby sells and the Transferee hereby purchases the Dutch
Acquired Business for a purchase price of US$20 million, the specific
allocation relative to the assets of the Dutch Acquired Business
shall be
provided in a manner similar to that described in Section 1.7 of
the
Purchase Agreement.
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| 2.2 |
The
Transfer of the assets belonging to the Dutch Acquired Business shall
be
governed by this Agreement. Any transfer shall become effective on
the
Effective Date.
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| 3. |
Transfer
of Equipment and Inventory
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| 3.1 |
The
Transferor andtransfers
on
the Effective
Date to Transferee
agree to ,
who will then accept this transfer
the
movable
tangible assets
(roerende
zaken)
listed
in Annex
3
(“Transferred
Assets”).
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To
the
extent that, on the Effective Date, any retention of title rights exist in
favour of third parties in respect of any Transferred Asset or such Transferred
Assets have been transferred to third parties by way of a security transfer,
the
Transferor and the Transferee agree to transfer to the Transferee all contingent
rights existing in favor of the Transferor at the Effective Date.
| 3.2 |
The
Transferee shall assume any risk of loss and all obligations to insure
the
Transferred Assets, as of the date and time of transfer.
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| 3.3 |
To
the extent the Transferee does not obtain possession of individual
assets
by means of physical
delivery (bezitsverschaffing)
in accordance with section 3:90 of the Dutch Civil Code, but such
assets
remain in the possession of the Transferor, the Transferor and the
Transferee agree that from the Effective Date such assets are to
be kept
in safe custody by the Transferor for the Transferee and that the
delivery
required in respect of the transfer of title of such assets will
take
place by a delivery (bezitsverschaffing)
constitutum possessorium in
accordance with section 3:115 sub a of the Dutch Civil Code. To the
extent
that certain assets are in the possession of third parties on the
Effective Date, delivery takes place by a delivery (bezitsverschaffing)
traditio longa manu
pursuant to section 3:115 sub c of the Dutch Civil Code. As soon
as
practically possible after the Effective Date the Parties shall jointly
prepare a list of all tangible assets whose possession has been
transferred to the Transferee by physical delivery (bezitsverschaffing),
whose possession will be transferred by delivery (bezitsverschaffing)
constitutum possessorium
and whose possession will be transferred by delivery (bezitsverschaffing)
traditio longa manu.
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The
Transferee will notify the transfer of the
tangible
assets whose possession has been transferred to the Transferee by delivery
(bezitsverschaffing)
traditio longa manu
by the
Transferor to the Transferee to the custodian (houder)
of such
assets.
| 4. |
Sale
and Transfer of Other
Assets
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| 4.1 |
Accounts
receivable
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The
Transferor
hereby
assigns to
on
the
Effective
Date to the
Transferee and the Transferee hereby assumes the accounts receivable and other
amounts due from third parties arising out of the conduct of the Dutch Acquired
Business, as set forth in Annex 4.1a.
For the
avoidance of doubt, the Parties acknowledge that the Transferor shall remain
entitled to the accounts receivable set forth in Annex
4.1b.
The
Transferee will notify the assignment of the accounts
receivable and other amounts due from third parties arising out of the conduct
of the Dutch Acquired Business, as set forth in Annex 4.1a
to the
debtors concerned.
| 4.2 |
Advertising
Material
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Included
in the assets to be transferred pursuant to Clause 3
are all
promotional and advertising
materials, including but not limited to, catalogues, brochures, handbooks,
manuals and other such materials, of the Dutch Acquired
Business located at the premises of the Transferor.
| 4.3 |
Prepaid
Expenses
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The
Parties acknowledge that the Transferee shall be entitled to all of the
Transferor’s prepaid expenses, deposits, charges, sums and fees made in
fulfilment of the contracts transferred according to Clause 7.
| 5. |
Books
and Records
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Included
in the assets to be transferred pursuant to Clause 3
are all
books, records and other documentation of the Dutch Acquired
Business
located
at the premises of the Transferor. The Parties acknowledge that the Transferor
is legally
required
to retain certain books, records and other documentation. Therefore, the
Transferor will transfer and deliver copies of those documents to be retained.
| 6. |
Assumption
of Liabilities
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| 6.1 |
The
Transferee assumes from the Transferor, by way of the assumption
of debt
with full discharge of the original debtor,
all liabilities and obligations of the Business accrued or arising
before
or after the Closing, including, but not limited to:
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| a) |
all
trade accounts payable and accrued liabilities reflected on the Estimated
Statement of Net Working Capital,
which shall be adjusted after the Effective Date according to the
Final
Statement of Net Working Capital.
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| b) |
any
warranty obligations of Transferor under written warranty agreements
and
statutory and common law warranty obligations to customers of the
Dutch
Acquired Business;
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| c) |
any
obligations of the Transferor under the Contracts listed or described
in
Annex 7.1
arising subsequent to the Effective Date.
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| 6.2 |
Transferee
shall not assume or agree to pay, discharge or perform any of the
following liabilities or obligations (the “Retained
Liabilities”)
arising out of
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a)
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Any
claims made or threatened by, or on behalf of any employee or independent
contractor (performing duties in the nature of an employee of the
Dutch
Acquired Business), including, without limitation, any claims relating
to
or arising out of any tort (intentional or otherwise) or violation
of law
relating to discrimination, harassment, wrongful termination or other
similar matters;
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b)
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any
condition or liability arising on or before the Closing Date which
violates or is alleged to violate any Environmental, Health and Safety
Laws;
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c) income,
franchise or other similar taxes;
d) Retained
Employees (as hereinafter defined);
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e)
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any
funded debt of Transferor associated with the
Business.
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| 6.3 |
The
parties hereto waive compliance with the provisions of any local
law
applicable to obtaining consents from the creditors of the respective
liabilities assumed pursuant to Clause 6.1,
that would be required for the transfer of such liabilities from
the
Transferor to the Transferee.
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| 7. |
Sale
and Transfer of Contract
Rights
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| 7.1 |
The
Transferor assigns to the Transferee and
the Transferee hereby assumes from the Transferor in accordance with
section 6:159 of the Dutch Civil Code,
the contracts including all rights and obligations resulting from
the
contracts and contractual offers (contractual relationships) of the
Dutch
Acquired
Business
which are listed or described in Annex 7.1
hereto.
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| 7.2 |
As
soon as possible after the Effective Date, the Parties will jointly
endeavour to obtain the
consents from the respective other parties to the contractual
relationships to be transferred pursuant to Section 8.1 required
to
transfer such contractual relationships from the Transferor to the
Transferee. To the extent that the consents to the transfer of the
contractual relationships cannot be obtained, the Transferor will,
in
respect of the external relationships, remain the party to the relevant
contractual relationship and the Parties will, for the purpose of
their
internal relationship, behave and treat each other as if the transfer
had
effectively taken place on the Effective Date. In particular, (i)
the
Transferor will follow the Transferee's instructions regarding the
exercise of any rights under such contractual relationships, (ii)
the
Transferee shall indemnify the Transferor against any liability arising
from the holding of such contractual
relationships.
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| 8. |
Employment
Relationships
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| 8.1 |
All
employment relationships attributable to the Dutch Acquired Business
of
the Transferor will simultaneous with the consummation of this asset
sale
and transfer agreement transfer to the Transferee by operation of
law
pursuant to sec. 7:662 through 7:666 of the Dutch Civil Code. The
parties
agree that the Transferee will offer the transferring employees terms
and
conditions of employment (including terms relating to the provision
of
benefits on retirement, disability or dependants) that are comparable
(excluding bonus compensation) and not less favorable than the terms
and
conditions of employment applicable to the employees just before
their
transfer to the Transferee.
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| 8.2 |
The
employees the Transferor believes are attributable
to
the Dutch Acquired Business operated by the Transferor are listed
in
Annex 8.2.
This Annex contains the name of the employees, their age, date of
entry in
the employment relationship, actual function and salaries/remunerations
due to the employees according individual or collective agreements
with
effect to the Effective Date.
However, the parties agree that Annex 8.2 is
not exhaustive as labour courts may determine that employees not
listed
are attributable to the Dutch Acquired Business or that employees
listed
are not attributable to the Dutch Acquired Business, and that the
employment relationships shall transfer according to sec. 7:662 through
7:666 of the Dutch Civil Code irrespective whether they have been
included
in the Annex 8.2 or
not.
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| 9. |
Permits
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The
Parties acknowledge
that no
assignment to the Transferee of the governmental permits for the operation
of
the Dutch Acquired
Business
which
were granted on a non-personal or personal basis is required and that the
Transferee may make use of such permits without further action.
| 10. |
Registration
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The
Transferee and the Transferor shall jointly cooperate to fulfil any formalities
required by the laws of the Netherlands regarding the transfer of the Dutch
Acquired Business.
| 11. |
Remedies
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To
the
extent there is a breach or a default, or a claimed breach or claimed default,
under this Agreement, the Parties agree that their rights and remedies shall
be
governed solely by the Purchase Agreement, and the Parties shall have rights
and
remedies under the Purchase Agreement in accordance with the third party
stipulation set out in Section 1.9 of the Purchase Agreement, which provides
that (i) the Transferor and/or the Transferee are third party beneficiaries
and
that (ii) they are granted standing to institute proceedings to enforce their
rights and remedies as provided for in the Purchase Agreement. The Parties
agree
that they shall not pursue any remedies under this Agreement other than the
rights and remedies that are available under the Purchase Agreement in relation
to this Agreement.
| 12. |
Miscellaneous
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| 12.1 |
This
Agreement has been prepared in the English
language.
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| 12.2 |
This
Agreement shall be governed by the laws of the
Netherlands.
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| 12.3 |
Should
any provision of this Agreement be or become invalid, ineffective
or
unenforceable as a whole or in part, the validity, effectiveness
and
enforceability of the remaining provisions shall not be affected
thereby.
Any such invalid, ineffective or unenforceable provision shall be
deemed
replaced by such valid, effective and enforceable provision as comes
closest to the economic intent and purpose of such invalid, ineffective
or
unenforceable provision as regards subject-matter, amount, time,
place and
extent. The aforesaid shall apply mutatis
mutandis
to
any gap in this Agreement.
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In
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
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Transferor:
Alpha
Security Products B.V.
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Transferee:
Checkpoint
Meto Benelux B.V.
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| /s/ A.A.M. Krabbenborg | /s/ ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇ | ||
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Name:
.A.M.
Krabbenborg
Title: Managing
Director Europe
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Name:
▇▇▇▇
▇. ▇▇▇ ▇▇▇▇ Title: Managing Director |
Annex 3:
List
of movable tangible assets, which the Transferor sells, and the Transferee
purchases
Page
of
14
Annex 4.1a: List
of accounts receivable and other amounts due from third parties arising out
of
the conduct of the Dutch Acquired Business to be
transferred
Page
of
14
Annex 4.1b): List
of accounts receivable and other amounts due from third parties arising out
of
the conduct of the Dutch Acquired Business not to be
transferred
Annex 7.1: The
contracts including all rights and obligations resulting from the contracts
and
contractual offers (contractual relationships) of the Dutch
Acquired
Business;
Page
of
14
Annex 8.2: The
Transferor's employment relationships transferring to the
Transferee;