Exhibit 2.1
BASIC AGREEMENT
REGARDING THE ASSIGNMENT OF ASSETS OF THE XXXXXX DIVISION
BETWEEN THE UNDERSIGNED
1. The company K-TRON (SUISSE) SA, a limited company with registered office
at 5702 Niederlenz, Switzerland, represented by Xx Xxxxx GUNTHARDT in
his capacity as authorized representative of the Board of Directors with
full authority for the present purposes, it being stipulated that the
various transactions referred to herein were unanimously resolved by the
Board of Directors on July 31, 2001,
(hereinafter referred to as "K-TRON CH")
AND
2. The company MJ ENTREPRISES SA (whose firm was changed by decision of
July 17, 2001 to "XXXXXX International SA"), a limited company with
registered office at 00000 Xxxx-Xxxxxx, Xxxxxx, represented by Mr Xxxxxx
XXXXX in his capacity as Chairman and Chief Executive with full
authority for the present purposes, it being stipulated that the various
transactions referred to herein were unanimously resolved by the Board
of Directors on May 3, 2001,
(hereinafter referred to as "MJ FRANCE")
(jointly hereinafter referred to as "the PARTIES")
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THE FOLLOWING WAS FIRSTLY MADE EXPLICIT
K-Tron CH has notified MJ France of its wish to dispose of the entire business
of the XXXXXX division (regarding the totality of the XXXXXX products) located
in Neuchatel and Niederlenz in Switzerland and at Lengerich in Germany, i.e. the
development, manufacture, distribution and commercialization of machines,
appliances and technical equipment intended for weighing, dosing and mixing bulk
materials (referred to below as the "Activity") used in industrial manufacturing
processes ("Heavy Duty Industry", Annex 1) including the fixed and intangible
assets needed to the Activity.
MJ France is interested in the acquisition of this Activity by its two
subsidiary companies, XXXXXX Suisse Sarl ("H CH") and XXXXXX Deutschland GmbH
("H BRD") (registered to date under the name of melfed 27. Vermogensverwaltungs
GmbH) (referred to jointly as the "Assignees"), in the form of an assignment of
assets. In principle, K-Tron CH is willing to accept MJ France as a partner, who
wishes to involve its two subsidiaries in this transaction as Assignees.
However, K-Tron CH can only accept this concept on the condition that MJ France
undertakes to be bound to the assignment of the Activity by its two subsidiaries
as a joint and several debtor. In the context of this acquisition of the
Activity, MJ France therefore is bound as a joint and several debtor of the
Assignees.
It is made clear that MJ France, which is to take over the entire activity via H
CH and H BRD, will transfer to France all the related manufacture which is
currently located in Niederlenz.
The concept on which the parties concerned have reached agreement following
extensive correspondence relating to the assignment of the Activity necessitates
various transactions involving respectively several parties for its realization.
For the purpose of implementation of said assignment, various interdependent
contracts are required because the concept can only be implemented on condition
that all the contracts are signed in the sense of <>,
THE PARTIES HAVE AGREED TO PROCEED AS FOLLOWS:
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A. CONCEPT
a) K-Tron CH, as the Assignor, will transfer the Activity to the two -
recently founded - subsidiary companies of MJ France, namely H CH and H
BRD. The terms for this transaction are set out in the respective Asset
Assignment Agreements with the said companies.
b) In the framework of the assignment of the entire activity of the XXXXXX
division, K-Tron CH will participate in the increase of the share capital
of MJ France. This investment amounts to FF 2,484,000. -- and corresponds
to 19.9% of the total augmented share capital of MJ France. MJ France will
make the sum invested by K-Tron CH available to its two subsidiaries, H CH
and H BRD, which have undertaken to pay these funds to K-Tron CH as an
instalment against the price of the Activity which has been assigned to
them according to the respective terms of payment set out in the
respective Asset Assignment Agreements. As shareholder in MJ France,
K-Tron will sign a shareholders agreement.
c) In the framework of the acquisition of the Activity, H BRD will be
established in the premises of K-Tron Deutschland GmbH XXXXXX Division in
Lengerich. To this effect, H BRD will sign a lease contract (Lease
Contract "Lengerich") with K-Tron Deutschland GmbH.
d) In the framework of the acquisition of the Activity, H CH will be
installed in the premises actually occupied by K-Tron CH in Neuchatel. To
this effect, H CH will take over the respective lease contracts according
to the terms set out in the respective Asset Assignment Agreement.
e) The payment to K-Tron CH of the purchase price by H CH and H BRD will be
made according to the Asset Assignment Agreements as follows:
- CHF 1,000,000.-- payable on the day of signing of the Asset
Assignment Agreements
- FF 2,484,000.-- payable in EUROS (378,683.35) within ten days of the
signing of the Asset Assignment Agreements (amount
corresponding to the participation in MJ France in
the framework of the increase of its share capital)
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- CHF 3,017,327.-- (+ interest) by partial payments spread over seven
years according to the terms of payment set out in
the two Asset Assignment Agreements
f) In order to guarantee the payment to K-Tron CH of the Goodwill price by H
CH and H BRD according to the terms of the respective Asset Assignment
Agreements, the parent company of K-Tron CH, i.e. K-Tron International
Inc., will conclude a life insurance for the Chairman and Chief Executive
of MJ France, Mr Xxxxxx XXXXX, naming K-Tron CH as the beneficiary in the
event of the death or disability of Mr Xxxxxx XXXXX. Mr Xxxxxx XXXXX
agrees to undergo any necessary medical examination and to furnish all the
information necessary for this insurance policy to be concluded.
B. CONTRACTS
MJ France commits itself as a joint and several debtor of its two subsidiaries,
H CH and H BRD, in respect of all commitments entered into by the latters in
relation to the assignment of the Activity.
The parties undertake to sign the following contracts/agreements as soon as they
have been finalized, said documents being required for realization of the
assignment of the Activity.
1. Basic Agreement
Contracting parties: K-Tron CH and MJ France
2. Asset Assignment Agreement "CH"
Contracting parties: K-Tron CH and MJ France and H CH
3. Asset Assignment Agreement "BRD"
Contracting parties: K-Tron CH and MJ France and H BRD
4. Lease Contract "Lengerich"
Contracting parties: K-Tron Deutschland GmbH and H BRD and MJ France
as debtor with joint and several liability
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5. Shareholders Agreement
Contracting parties: shareholders of MJ France (see chart in Annex 2)
C. INTERDEPENDENCE OF THE DIFFERENT CONTRACTS
Since the Activity will be taken over firstly by the Swiss subsidiary of MJ
France, i.e. H CH, and secondly by the German subsidiary of MJ France, i.e. H
BRD, MJ France undertakes, both in its own name and in that of its two
subsidiaries, to sign all the contracts necessary for the purpose of realization
of the assignment.
D. TERMINATION OF THE DISTRIBUTION CONTRACT
Following the assignment of the Activity, the parties hereby agree to terminate
the Distribution Contract signed on October 25, 1995 in respect of XXXXXX
products of the XXXXXX division (Annex 3) with effect from the date of signing
of the contracts pursuant to paragraph B, sections 1, 2 and 3. The said
distribution contract will cease to be necessary after that date. It is stated
that none of the parties will incur any financial consequences from the
termination of the said distribution contract.
E. PROTOCOL OF AGREEMENT
It is stated that, independently of the assignment of the Activity, the Protocol
of Agreement signed on October 25, 1995 (Annex 4) remains valid. The various
payments (monthly instalments) due to K-Tron CH according to the clauses of said
protocol will be paid by M. XXXXX and MJ France - both as joint and several
debtors - according to the respective terms of payment until the full
outstanding balance remaining due has been paid.
X. XXXXX PRODUCTS
In addition to the assignment by K-Tron CH to H CH and H BRD of the Activity
concerning XXXXXX products, the parties agree on the following regarding the
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distribution of XXXXX products (Annex 5) intended for the "Heavy Duty Industry"
(Annex 1) in order to guarantee the continuity of their relevant business
relations:
As has been the case up to now, MJ France will order/purchase the XXXXX products
from K-Tron CH for distribution into the "Heavy Duty Industry" markets (Annex
1). The XXXXX products will be purchased at 85% of the published Swiss list
prices (Annex 5).
In respect of the XXXXX products, the parties undertake, for a five-year period,
not to compete with each other on the markets of the "heavy duty industry" and
"light duty industry", comprising the industries figuring in the - non
exhaustive - list, in Annexes 1 and 6. In the event of disagreement over the
markets (industries) served, the parties will take account of historic usage to
settle the dispute in question (existing XXXXX clients of K-Tron CH will be
served by the latter while the XXXXXX clients - former clients of K-Tron CH -
will be served by MJ France). In cases where XXXXXX and XXXXX products are
traditionally used at the same time, which is the case among others for the
Gypsum and Wallboard manufacturing industries, the party whose offer was first
submitted to the client will be have the right to further handle the project in
question.
G. NON - COMPETITION CLAUSE
K-Tron CH undertakes, for a period of 5 years, not to compete with MJ France or
its subsidiary companies - H CH and H BRD - in respect of the XXXXXX products
according to the list set out in Annex 10 to the Asset Assignment Agreements CH
and BRD in the "heavy duty industry" markets, but its only undertaking in this
regard is to refrain from using its own name for this purpose.
H. "LAFARGE LA COURONNE" PROJECT
Following the assignment of the Activity of K-Tron CH to H CH and H BRD the
parties agree, with a view to guaranteeing the proper continuation of the
"Lafarge La Couronne" project (project No. 99424), to arrange the handling of
said project according to the undertakings signed by the parties in the memo set
out in Annex 7.
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I. CONFIDENTIALITY CLAUSE / PUBLICATIONS
The Parties undertake to refrain from disclosing to third parties information
about the circumstances and content of this contract and all other contracts
relating to the assignment of the Activity without any limit in time with the
exception of
- publication in the press of an announcement providing information about
the present assignment, which will have been drafted beforehand by joint
agreement between the parties, and
- information which K-Tron CH is required to publish by the laws of the
United States of America, namely the SEC Rules & Regulations (Securities
Exchange Commission), and
- information which must be communicated by way of general orientation of
the new situation/organization of the XXXXXX division to the
staff/representatives of the parties, and
- information which K-Tron CH would wish to communicate (orally) to their
financial analysts and/or investors, and
- information and draft documents which MJ France would wish to communicate
to its legal advisors who are bound by professional secrecy.
J. NULL AND VOID OR INVALID PROVISIONS
The fact that any particular provision is null and void or invalid does not
cause the other clauses of this contract to become null and void or invalid. The
parties are obliged to replace the null and void or invalid clause by a
provision which approximates as closely as possible to the meaning and purpose
of said clause.
K. RESERVATION OF THE WRITTEN FORM
Amendments and additions to this agreement are valid only if they are made in
writing. The reservation of the written form itself can only be modified by
joint agreement in writing between the parties.
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L. APPLICABLE LAW AND PLACE OF JURISDICTION
THIS AGREEMENT IS GOVERNED BY SWISS LAW. Application of the United Nations
Agreement of 11 April 1980 on contracts for the international sale of goods is
explicitly excluded.
All disputes between the parties relating to this agreement will be subject to
the sole jurisdiction at the place where K-Tron CH has its registered office.
Established in NIEDERLENZ on JULY 31, 2001
In as many originals as the undersigned.
K-TRON (SUISSE) SA MJ ENTREPRISES SA
/S/ Lukas Gunthardt /S/ Xxxxxx Xxxxx
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Lukas GUNTHARDT Xxxxxx XXXXX
/S/ Xxxxxx Xxxxx
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Xxxxxx XXXXX
Annex 1: "Heavy Duty Industry" list
Annex 2: "Concept" chart
Annex 3: Distribution Contract of October 25, 1995
Annex 4: Protocol of Agreement of October 25, 1995
Annex 5: List/Prices of XXXXX products on CD
Annex 6: "Light Duty Industry" list
Annex 7: Memo "Lafarge La Couronne" project
