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ASSET PURCHASE AGREEMENT
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On 26 October 2000
BY AND BETWEEN THE UNDERSIGNED:
Leybold Vacuum France SAS (societe par actions simplifiee), a French
limited liability company, with a share capital of EUR 3,095,750, having its
registered office at Villebon-sur-▇▇▇▇▇▇ (91140), ▇.▇. ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇, ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇, and recorded in the Commercial Registry of Evry under number B 702
929 976.
Represented by ▇▇▇▇▇▇ ▇▇▇▇▇▇, residing in Maurepas (78310), ▇▇, ▇▇▇ ▇▇
▇▇▇▇▇▇, having full authority to enter into this Agreement, as set forth in the
minutes of the sole shareholder's resolutions of Leybold Vacuum France SAS,
dated September 26th, 2000.
Hereafter, the "Vendor"
AND:
Inficon Aktiengesellschaft, a Liechtenstein limited liability company,
with a share capital of CHF 100,000, having its registered office in Balzers
(FL-9496), Liechtenstein, and registered under number H.1064/92.
Represented by ▇▇▇▇▇▇ ▇▇▇▇▇▇, Executive Director, and ▇▇▇▇▇▇▇ ▇▇▇▇,
Director.
Hereafter, the "Purchaser"
WITH THE PARTICIPATION OF:
Maitre Thierry Assant-Lechevallier, notary in Paris (75009), ▇▇ ▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇'▇▇▇▇▇.
Hereafter, the "Escrow Agent"
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ARTICLE 1 - SALE
Under this Agreement, the Vendor, committing himself to all standard
guarantees in fact and law, sells to the Purchaser, who accepts it, the business
assets designated below.
ARTICLE 2 - DESCRIPTION
A business located in Villebon-sur-▇▇▇▇▇▇ (91140), ▇.▇. ▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, in the import, distribution and sale of any material used
to analyze gas, specifically through mass spectrometry and equipment used to
measure thin layers and items such as fittings for vacuums, valves and
total-pressure vacuum gauges, for which Leybold Vacuum France SAS is registered
in the Commercial Register of Evry under number B 702 029 976.
These assets include:
(A) The following intangible assets:
- Clientele for the business in the import, distribution and
sale of any material used to analyze gas, specifically
through mass spectrometry and equipment used to measure thin
layers and items such as fittings for vacuums, valves and
total-pressure vacuum gauges;
- The computer files for the business in the import,
distribution and sale of any material used to analyze gas,
specifically through mass spectrometry and equipment used to
measure thin layers and items such as fittings for vacuums,
valves and total-pressure vacuum gauges.
(B) And inventories:
- The Purchaser agrees to purchase the merchandise that exist
as part of the business on the day that he takes possession.
This merchandise is described and assessed in an inventory
prepared in the presence of both parties and attached to the
Agreement (Exhibit 1).
The Purchaser states that the present condition of the business is well
known to him.
The parties agree to expressly exclude from the scope of this Agreement
(i) the business in the sale of any equipment used in teaching activities
("didactic"); (ii) the business in the sale of any equipment used for creating a
vacuum (vacuum pumps), with the exception, however, of any equipment necessary
for the functioning of leak-detection equipment, and any equipment related to
the implementation of water-proofing techniques; (iii) the business in the sale
of any equipment and systems used to improve the optical quality of precision
ophthalmic or optic lenses through the application of thin vacuum-sealed layers,
as well as any evaporation and related materials; (iv) the business in the sale
of leak detectors, and any equipment used to implement water-proofing techniques
that the Vendor operated in connection with the business in the import,
distribution and sale of any material used to analyze gas, specifically through
mass spectrometry and equipment used to measure thin
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layers and items such as fittings for vacuums, valves and total-pressure vacuum
gauges, which is the subject of this Agreement.
ARTICLE 3 - ORIGIN OF OWNERSHIP
The aforementioned business belongs to the Vendor, who received it
together with other assets following the contribution by Leybold Heraeus, as
part of its merger with Societe Generale du Vide - SOGEV, of all its assets,
with the obligation to assume all its liabilities, pursuant to the terms of a
merger agreement, dated August 13, 1971, in Paris, a copy of which is attached
to this Agreement (Exhibit 2). The parties acknowledge that provisions relating
to the price set forth in the merger agreement are not essential and do not
determine the consent by the Purchaser to this Agreement.
The parties to this Agreement expressly exempt the drafter of this
agreement from revealing the origin of prior ownership.
ARTICLE 4 - OWNERSHIP - POSSESSION
The Purchaser shall become the owner of the business assets as of this
day.
He shall take real and effective possession of said business assets as
of this day.
ARTICLE 5 - CONSIDERATION
The sale will be realized at a price of 500,000 francs to be applied to
intangible assets, and at a price of 260,482 francs (Value Added Tax excluded)
to be applied to the inventories.
ARTICLE 6 - PAYMENT OF THE PRICE
The price is paid by the Purchaser to the Vendor, who shall acknowledge
it and provide a receipt subject to collection, this day.
ARTICLE 7 - APPOINTMENT OF AN ESCROW AGENT
The parties shall appoint Thierry Assant-Lechevallier, notary, who
participates herein and agrees to act as the Escrow Agent of the funds
corresponding to the price mentioned above.
The Escrow Agent shall hold in escrow the funds until they become
available to the Vendor after the completion of the legal formalities.
The Vendor shall not receive the funds being held in escrow until he
proves that there is no encumbrance upon the assets sold or objection to the
payment of the price. Furthermore, he may collect the price only upon evidence
of the performance of his tax obligations, and of payment of any taxes relating
to the operation of the business and sales taxes.
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Upon completion of his assignment, the Escrow Agent may deliver to the
Vendor, without the presence of the Purchaser, either the full price in the
event that there has been no encumbrance or objection, or the amount remaining
after the payment of debts and costs.
ARTICLE 8 - GENERAL CONDITIONS
The sale shall be made according to the following conditions, which the
Vendor and the Purchaser agree to execute and accomplish, respectively, namely:
With regard to the Purchaser:
- Taxes - Business tax: As of the day he takes possession, the
Purchaser shall pay the taxes, contributions, levies, local taxes and any other
charges, to which the assets sold herein may now, or at a future date, be
subjected.
Regarding business tax, the Vendor shall inform the Purchaser of the
amount of tax due for the current fiscal year, and the Purchaser shall pay the
Vendor its portion of the tax, prorated for the period from the date of
possession to December 31 of the current year.
- Expenses - Costs - Fees: Unless otherwise provided in this Agreement,
all expenses, costs and fees in connection with this Agreement and all those
that were prerequisite to it, or those that will follow or be a consequence of
this Agreement shall be paid by the Purchaser, which herein expressly agrees,
with the exception of the attorneys' fees of each party, which shall remain the
responsibility of each of them, respectively.
- Insurance: Insurance upon the assets shall be the obligation solely
of the Purchaser as of the date of possession.
With regard to the Vendor:
- The Vendor shall retain full and complete responsibility for all the
items comprising the business in all teaching-related equipment ("didactic"),
all equipment used for creating a vacuum (vacuum pumps), with the exception,
however, of equipment necessary for the functioning of leak-detecting equipment,
and any equipment related to the implementation of water-proofing techniques,
and any equipment and systems used to improve the optical quality of precision
ophthalmic or optic lenses through the application of thin vacuum-sealed layers,
as well as any evaporation or related materials, and any equipment necessary for
the functioning of the leak-detecting equipment and any equipment related to the
implementation of water-proofing techniques not transferred under the terms of
this Agreement, and shall be specifically responsible for all operating fees and
expenses, as well as any related taxes, so that the Purchaser shall never be
subject to inquiries regarding this.
ARTICLE 9 - COVENANT NOT TO COMPETE
Unless expressly agreed in writing by the Purchaser, the Vendor hereby
expressly agrees to refrain from competing with the Purchaser and waives the
right to manage or operate, whether directly or indirectly, a business equal or
substantially similar to the business which is sold for a period of five (5)
years, from the date on which the Purchaser takes possession, on French
territory, under penalty of damages to the Purchaser and to any successive
purchaser.
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The Vendor undertakes that all successors or assignees of the Vendor,
and any shareholder of the Vendor shall observe the covenant not to compete
referred to above.
ARTICLE 10 - ACCOUNTING BOOKS
The Vendor and the Purchaser hereby declare that they have approved the
books held by the Vendor relating to the business for the three years preceding
the Agreement.
An inventory of these books has been prepared and signed by the
parties, a copy of which has be given to each of them.
The Vendor hereby agrees, pursuant to Article 15 of the Law of June 29,
1935, to make the aforementioned books available to the Purchaser for a period
of three years from the possession of assets. The Purchaser may freely consult
them during business hours upon reasonable prior notice to the Vendor.
ARTICLE 11 - FORMALITIES
The Purchaser shall, in the time allotted, complete the registration
and publication procedures prescribed by law. The Agreement shall be subject to
registration in the month following its signature. Moreover, the sale shall be,
within two weeks of its date, published in extract form in a journal of legal
announcements, in the arrondissement or departement in which the business is
operated, and shall further be published in the BODACC (Bulletin Officiel
D'Annonces Civiles et Commerciales / official bulletin of civil and commercial
notices).
If, in the performance of these publication procedures, it is revealed
that encumbrances or objections to the price have been made at the request of
creditors, the Vendor shall be required to produce, at its own cost, the
releases and withdrawal certificates within a month of the notification, which
will be served upon it at the address mentioned below.
ARTICLE 12 - TAX DECLARATIONS
The sale shall be concluded at a principal price of 500,000 francs
excluding new goods (the "Purchase Price").
Pursuant to Article 719 of the General Tax Code, the present sale is
subject to registration fees of 4.8% applicable to the portion of the Purchase
Price exceeding 150,000 francs.
Pursuant to Article 723 of the General Tax Code, the sale of new goods
is subject to Value Added Tax. However, the Purchaser has indicated to the
Vendor that a portion of the new goods will be delivered in France and another
portion exported to Liechtenstein. The following tax scheme will apply:
- Up to the portion of the price relating to the goods to be
delivered in France, i.e., FRF 217,739, the sale will be
subject to Value Added Tax;
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- Up to the portion of the price relating to the goods to be
exported in Liechtenstein, i.e., FRF 42,744, the sale will be
exempt of Value Added Tax pursuant to the provisions of
Article 262 I 1(degree) of the General Tax Code.
The parties agree that the Purchaser will bear the Value Added Tax
levied upon the sale of new goods under this Agreement.
In view of the possible tax levy on the capital gain he may realize at
the time of the future sale, the Vendor states that his domicile is that
specified in the heading of this Agreement.
Furthermore, the Vendor agrees to file, in the allotted time, the
various statements required by the tax administration, and specifically, those
set forth in Articles 201-1, 229 A, 235 ter J, 89 and 286-1 of the General Tax
Code.
ARTICLE 13 - DECLARATIONS
The Vendor states:
- That there is no objection on his part to this Agreement.
REGARDING THE ASSETS SOLD:
- That the business sold and the assets transferred are not
encumbered by any registered preferential claim or pledge.
SALES AND NET PROFIT :
- The sales and net profits realized over the last three years are
mentioned in the table below:
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YEARS SALES (taxes excluded) EBIT (Earnings Before
Interests and Taxes)*
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1997 FRF 13,418,000 FRF (891,000)
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1998 FRF 13,972,000 FRF 479,000
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1999 FRF 18,599,000 FRF 246,000
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Prorated for the FRF 20,018,000 FRF (240,000)
current year (from
1/1/2000 to
9/30/2000):
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*Because of the other activities of the Vendor, the latter can not
identify the net profit (net of interests and corporate income tax) on the
business assets that are the subject of this Agreement. The parties to this
agreement hereby agree that they are sufficiently informed by the figures
provided by the Vendor, and expressly exempt the drafter of this Agreement from
any responsibility in this matter.
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The Purchaser states:
- that he has no objection on his part to this Agreement and to the
transfer resulting from the Agreement.
ARTICLE 14 - ELECTION OF DOMICILE
For the execution of this Agreement and the consequences thereof, the
Vendor and the Purchaser elect domicile at their respective registered offices.
For any "objection" that may be made by a creditor, domicile is elected
at the law firm of ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇- ▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇, 91007 Evry Cedex.
ARTICLE 15 - ADDITIONAL GUARANTEES
After signing this Agreement, the Vendor agrees to sign, at the
required time, any document, instrument, or notarized deeds, and to provide the
Purchaser with a reasonable amount of assistance so that the Purchaser is able
to fully benefit from the rights attached to the assets to be transferred to him
under this agreement, and execute all provisions herein.
ARTICLE 16 - AFFIDAVIT
The parties hereby affirm, under penalties cited in Article 1837 of the
General Tax Code, that this Agreement wholly expresses the price that will be
owed if the agreement is exercised by the Purchaser; they acknowledge having
been informed by the drafter of the agreement of the penalties incurred if this
statement is not accurate.
ARTICLE 17 - APPLICABLE LAW
This Agreement is subject to French law.
Any claim relating to the conclusion, the interpretation, or the
execution of this Agreement shall be subject to the exclusive jurisdiction of
the Commercial Court of Paris.
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The Vendor The Purchaser
Represented by ▇▇▇▇▇▇ ▇▇▇▇▇▇ Represented by ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇
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The Escrow Agent
Represented by Thierry Assant-Lechevallier
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We hereby represent that this is a fair and accurate English translation of the
original agreement.
INFICON HOLDING AG
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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ANNEX 1
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Inventories
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ANNEX 2
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Origin of Ownership
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