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Exhibit 2.3
AMENDMENT TO ASSET AND SHARE PURCHASE AGREEMENT
DATED 2 JUNE 1999 BY AND BETWEEN
CENTURION INTERNATIONAL, LIMITED ("BUYER") AND
SIGMA WIRELESS TECHNOLOGIES LIMITED ("SELLER")
Whereas, Buyer and Seller are parties to an Asset and Share Purchase Agreement
(the "Agreement"); dated 2 June 1999 and
Whereas, Buyer and Seller wish to make certain modifications to said Agreement;
Therefore, Buyer and Seller agree as follows:
1. Except as described below, all of the terms of the Agreement are
incorporated and restated herein in their entirety and continue to be
in full force and effect.
2. Schedule 1 to the Agreement is hereby deleted and replaced with
Schedule 1, as attached hereto.
3. Clause One of Schedule 1 to the Agreement is deleted in its entirety.
4. Section 3.6 of the Agreement is hereby added and will read as follows:
3.6 Post-Closing Covenants of Seller. After the closing, except upon
Seller's receipt of Buyer's prior written waiver, Seller will take all
those actions set forth on Schedule 3.6 hereto. All costs, expenses and
liabilities (of any nature whatsoever, whether accrued, absolute or
contingent, whether known or unknown, whether disclosed or undisclosed,
whether due or to become due and regardless of when or by whom
alleged), arising from the Seller's compliance with this post-closing
covenant, will be borne by the Seller as an Excluded Liability and the
Buyer will be indemnified for such additional Excluded Liability
pursuant to Article VIII of the Agreement.
5. Section 10.15 of the Agreement is hereby added and will read as
follows:
Licence of Premises. Buyer grants to Seller a licence to use Buyer's
existing premises in Aylesbury for a period to run from 5 July 1999 to
1 October 1999. The license fee arising from such license of premises
will be GBP 560 payable by Seller to Buyer within three days of the
commencement of the license of premises. Seller shall be liable for any
deterioration in the condition of the premises from the date of
occupation. Such deterioration to be apparent from the condition of the
property agreed by Buyer and Seller on 5 July 1999.
6. Section 10. 16 of the Agreement will be added and will read as follows:
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Use of Anechoic Chamber. The anechoic chamber remains the property of
the Seller. The parties agree not to remove the chamber for a period of
2 months from the date of Closing, during which time it will be shared
between Buyer and Seller personnel. Seller and Buyer will each have 2
nominated days per week for exclusive access to the chamber. Fifth day
usage to be agreed on a week-by-week basis. Any alteration to the
agreed schedule will be based on 2-days notice. No changes are to be
made to the chamber that would render it unsuitable for use by the
Seller. Bill Tang will provide training as required (up to 8 hours) to
train Buyer personnel on chamber operations.
Seller will remove (and is permitted by Buyer to remove) the chamber to
its own premises on the 2-month anniversary of the Closing. For the
following 2 months, Buyer personnel will have similar access as above,
but subject always to 2-days prior notice.
7. Section 10. 17 of the Agreement will be added and will read as follows:
Sales Handover. Seller has provided Buyer with original copies of all
outstanding BPO's and PO's from Motorola. Seller will also provide
copies of all quotations, etc. outstanding. Seller personnel will
introduce nominated Buyer or Target personnel to the following
accounts: Motorola, Flensberg and Easterinch, Sensei/Vtech, and Nokia.
All travel expenses of Seller's personnel for these introductions shall
be paid for by the Buyer. It is agreed that existing Target customers
who buy a basket of products of Seller including moulded portable
products will continue to be managed by Seller with all moulded
products acquired from Buyer on commercial terms to be agreed. However
all OEM moulded portable contracts will be handled by Buyer directly.
All new enquiries will be handed off to the appropriate company within
one (1) working day.
8. Section 10. 18 of the Agreement will be added and will read as follows:
Documentation, Information and Computer Systems. The parties agree that
separation of all documentation and information relating to the
Business has not yet occurred. Both parties will work diligently over
the next two months (or sooner if possible) to ensure that all
necessary documentation needed by the other company to operate the
business, whether on file or on computer, is transferred, subject to
the agreed intellectual property position. After the two-month period,
all documents that have been identified as the intellectual property of
the other company will be removed from the system of the company
holding the intellectual property.
9. Section 10. 19 of the Agreement will be added and will read as follows:
H Bottomley Noncompete. Seller will enforce its non-compete agreement
against Mr. Howard Bottomley, but not at an excessive cost. This clause
will not require Seller to take legal action against Mr. Bottomley if
it deems it not to be cost effective.
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10. Section 10.20 of the Agreement will be added and will read as follows:
Engineering handover. John Garvey will be employed by Seller but
continue to work almost exclusively for Buyer for up to a four-month
period on the Sensei project. Ninety percent of his time and costs will
be charged to the Buyer. The Seller will cause Brendan O'Brien to make
up to 40% of his time available for a 3-month period on an "as needed"
basis. Costs for Mr. O'Brien charged to the Buyer will be based on the
amount of time provided. Travel costs will be charged to the Buyer at
cost. Employment costs will be charged to the Buyer at cost plus 15%
for both. If product support is required from Buyer personnel it will
be charged on the same basis as above.
11. Section 10.21 of the Agreement will be added and will read as follows:
Machine Maintenance. Centurion personnel will identify by Friday 9 July
1999 any issues with the moulded machines in Aylesbury which would
cause them not to be in a satisfactory or safe working condition. No
issues arising as a result of operations after 7:00 a.m. on 5 July 1999
will be included.
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SCHEDULE 3.6
The responsibility for customer corrective action related to Zap/Mod II
components for defective threads supplied by Quantamatic Ltd. (the "Supplier")
shall be the sole responsibility of Seller under the supervision of Joseph
Moore. Seller's sales and quality departments will resolve qualification of
re-worked parts by the customer. Daily updates to be provided to nominated Buyer
personnel. The detailed work-out plan is as follows:
1. The approximately 500,000 unassembled studs, either in stock or with
sub-assemblers will be returned to the Supplier and replaced with new
good parts at Seller's expense. Seller will pursue a claim with the
Supplier for its benefit.
2. The approximately 250,000 finished goods either in stock in Aylesbury
or with Motorola will be screened at Seller's expense. Screening will
take place in Aylesbury up to 7.00 a.m. on Monday 5 July 1999, at which
time screening will be transferred to Dublin. It is intended to
complete screening by Friday 12 July 1999, subject to obtaining
returned product from Motorola in Flensberg and Easterinch in a timely
fashion. In any event screening will take place as soon as practicable.
Seller will obtain full sales value either from Motorola or Buyer for
parts passed as good. Seller will agree with Buyer whether the goods
should be shipped directly by Seller to Motorola or shipped via Buyer.
Seller will pursue a claim with the Supplier for defective parts and
the cost of re-work and any other damage suffered. If goods are
returned via Buyer, Buyer will have the right to pre-inspect before
shipping to Motorola.
3. There are approximately 128,000 sub-assemblies in the system. Seller
will complete as many as possible into finished goods in Aylesbury at
Seller's expense up to 7.00 a.m. on Monday 5 July 1999 and will screen
these at Seller's expense. These finished items will be dealt with in
the same manner as item 2 above.
Any sub-assemblies remaining at 7.00 a.m. on Monday will be transferred
to Buyer who will finish them. Seller will pay an agreed cost to Buyer
for the added cost of gauging these as they are produced. Any defective
units will be transferred to Seller to claim off the Supplier.
Seller will replace a number of sub-assemblies which represents the
difference between 128,000 and the number of good units obtained by
Buyer from these parts post 5 July 1999.
4. Buyer will cooperate with Seller in their dealings with the Supplier to
ensure that the Supplier settles any claim made by Seller. This clause
will not require Buyer to continue to deal with the Supplier if it
chooses not to. Any claim which Buyer may suffer from the Supplier
arising out of the subject matter of this agreement will be defended
but the costs of any such claim ultimately suffered by Buyer will be
treated as an Excluded Liability as
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set forth in this agreement.
5. Any future returns from Motorola of Seller or Target manufactured
Zap/Modulus II components will be returned to Seller for screening and
dealt with as set forth above.
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Executed as a Deed this 5 day of July, 1999.
EXECUTED as a Deed by
CENTURION INTERNATIONAL, LTD.
By: /s/ Gary L. Kuck
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Name: Gary L. Kuck
Title: President
By: /s/ V. Stoiljkovic
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Name: V. Stoiljkovic
Title: Company Secretary
Present when the Common Seal of
SIGMA WIRELESS TECHNOLOGIES LTD.
was affixed hereto and EXECUTED as a Deed:
By: /s/ Peter Crowley
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Name: Peter Crowley
By: /s/ Michael J. McGinley
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Name: Michael J. McGinley
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