EXHIBIT 2.2
-----------
Execution Copy
AMENDMENT
regarding the
SHARE PURCHASE AND TRANSFER OF ASSETS AND LIABILITIES
AGREEMENT (THE AGREEMENT)
dated as of December 22, 2003
between
SOFIDIV SAS, a company duly incorporated under French law with its
registered office at 65, Avenue Edouard Vaillant, 92100 Boulogne,
France
(hereinafter SELLER)
and
CONCORD WATCH COMPANY SA, a company duly incorporated under Swiss law
with its registered office at 35, Nidaugasse, 2502 Bienne, Switzerland
(hereinafter PURCHASER)
Seller and Purchaser acknowledge that the Agreement shall be amended as
follows:
(1) Irrespective of Articles 3.1, 3.2, 15.2 of the Agreement and Schedule
15.2, the pension liability regarding Mr. Tony Anders and the related
assets shall not be transferred to or otherwise assumed by Purchaser or
any Purchaser's Affiliate
2/5
and shall remain as at the German Closing Date with the relevant
Seller's Affiliate.
(2) Notwithstanding anything to the contrary in Article 6.4 of the
Agreement, Seller shall cause the after sales services spare parts and
the finished goods in consignment located in Malaysia and forming part
of the Business Inventory to be retained by the appropriate Seller's
Affiliate or consignee respectively in Malaysia and such after sales
services spare parts and finished goods in consignment shall remain in
Malaysia until the Closing Date. The parties agree that, in accordance
with Article 7.3(ii)(b) of the Agreement, upon the Closing title to
such after sales services spare parts and the finished goods in
consignment shall be transferred to Purchaser's Affiliate in Singapore.
Notwithstanding such transfer, Seller and Purchaser agree that (i)
Seller shall cause such after sales services spare parts to be held in
Malaysia by the appropriate Seller's Affiliate and that (ii) the
finished goods in consignment shall remain held in consignment with the
respective consignees, respectively for the benefit of Purchaser and
the relevant Purchaser's Affiliate. Upon notice from Purchaser that it
wishes to assume possession of such after sales services spare parts,
Seller shall cause such assets to be delivered to Purchaser or its
designee ; it being expressly agreed that, with respect to such
finished goods in consignment, Purchaser and Purchaser's Affiliate
shall, as from the Closing, take full and sole responsibility for the
contractual relationship with the consignees.
(3) A - Notwithstanding anything to the contrary in Article 6.4 of the
Agreement, except for finished goods that are in consignment, the
finished goods in Malaysia shall be shipped to Seller's Affiliate in
Hong Kong and thereafter transferred, as at the Closing Date, from such
Seller's Affiliate in Hong Kong to the relevant Purchaser's Affiliate
in Hong Kong.
B - The parties expressly agree that, notwithstanding anything to the
contrary in Article 7.3(ii)(b), the finished goods shipped from
Seller's Affiliate in Malaysia to Seller's Affiliate in Hong Kong are
scheduled to arrive in Seller's Affiliate's premises in Hong Kong on
March 2, 2004 at the earliest and that, for the purpose of the relevant
ancillary agreement to be entered into between the relevant Seller's
Affiliate and the relevant Purchaser's Affiliate in Hong Kong, such
finished goods will be deemed arrived in such Seller's Affiliate's
premises in Hong Kong as at March 1, 2004,.
(4) The parties agree that, in accordance with Article 7.3(ii)(b) of the
Agreement and subject to the provisions of article 3-B hereabove with
respect to Hong Kong, title to the finished goods and spare parts
located in Hong Kong and Singapore and
3/5
forming part of the Business Inventory shall be transferred to
Purchaser's Affiliates in Hong Kong and Singapore, respectively.
Notwithstanding such transfers, Seller and Purchaser agree that Seller
shall cause the spare parts to be held in Hong Kong and Singapore by
the appropriate Seller's Affiliate for the benefit of the relevant
Purchaser's Affiliate. Upon notice from Purchaser that it wishes to
assume possession of such spare parts, Seller shall cause such assets
to be delivered to Purchaser or its designee.
(5) The parties agree that, in accordance with Article 7.3(ii)(b) of the
Agreement, title to the finished goods and spare parts located in UK
and Japan and forming part of the Business Inventory shall be
transferred to Purchaser's Affiliates in UK and Japan, respectively.
Notwithstanding such transfers, Seller and Purchaser agree (i) that
Seller shall cause such finished goods other than finished goods in
consignment and such spare parts to be held in UK and Japan by the
appropriate Seller's Affiliate for the benefit of the relevant
Purchaser's Affiliate, and (ii) that the finished goods in consignment
shall remain in consignment with the respective consignees. Upon notice
from Purchaser that it wishes to assume possession of such finished
goods other than finished goods in consignment and such spare parts,
Seller shall cause such assets to be delivered to Purchaser or its
designee ; it being expressly agreed that, with respect to such
finished goods in consignment, Purchaser and Purchaser's Affiliate
shall, as from the Closing, take full and sole responsibility for the
contractual relationship with the consignees.
(6) The parties agree that notwithstanding Articles 3.1 and 7.3(ii)(b) of
the Agreement, the transfer of the Business Assets and Business
Liabilities in France will be made from LVMH Montres et Joaillerie
France SA to Swisswave and that, notwithstanding anything to the
contrary in Article 1, Definition of "Purchaser's Affiliates", and
Schedule 1.56 of the Agreement, and solely for the purpose of such
transfer, Swisswave shall be deemed to be a Purchaser's Affiliate as
that term is defined in the Agreement and (i) such transfer shall be
deemed to be a transfer between Seller's Affiliate and a Purchaser's
Affiliate for purposes of the Agreement and (ii) any agreement entered
into between LVMH Montres et Joaillerie France SA as a Seller's
Affiliate and Swisswave as Purchaser's Affiliate to give effect to such
transfer shall be consistent with the Agreement as hereby amended.
Without limiting the generality of the foregoing, but for greater
certainty, nothing in this Section (6) shall be deemed to otherwise
modify, amend or otherwise alter any covenant, representation or
warranty, obligation or agreement of Seller contained in the Agreement,
including any covenant, representation or warranty, obligation or
agreement of Seller regarding Swisswave.
4/5
(7) Notwithstanding Article 5.8 of the Agreement, the distributorship
agreements between the Company and Seller's Affiliates shall be
terminated as of the Closing Date but for the distributorship
agreements in Germany and France, which shall be transferred as at
German Closing to the German Newco and as at Closing to Swisswave,
respectively.
(8) Article 5.12 of the Agreement (Zoe Tay) shall be deleted.
(9) Article 17.6 of the Agreement shall be corrected. The first part of the
first sentence shall read: "Seller and, as appropriate, Seller's
Affiliate shall retain and make available to Purchaser, as reasonably
requested by Purchaser all information, records or documents relating
to the Business or the Transferred Employees for all periods prior to
the Closing and shall preserve all such information, records and
documents until the later of:"
(10) The parties agree that notwithstanding Articles 3.1 and 7.3(ii)(b) of
the Agreement but in accordance with Article 17.5 of the Agreement, the
transfer of the Business Assets in Taiwan will be made from LVMH Watch
& Jewelry Taiwan Ltd., Taiwan Branch to Cosa Liebermann Ltd., Taiwan
Branch (H.K.), a company duly incorporated under the law of Taiwan
(R.O.C.) ("PURCHASER'S DISTRIBUTOR") and that, notwithstanding anything
to the contrary in Article 1, Definition of "Purchaser's Affiliates",
and Schedule 1.56 of the Agreement, and solely for the purpose of such
transfer, Purchaser's Distributor shall be deemed to be a Purchaser's
Affiliate as that term is defined in the Agreement and (i) such
transfer shall be deemed to be a transfer between Seller's Affiliate
and a Purchaser's Affiliate for purposes of the Agreement and (ii) any
agreement entered into between LVMH Watch & Jewelry Taiwan Ltd., Taiwan
Branch as a Seller's Affiliate and Purchaser's Distributor as
Purchaser's Affiliate to give effect to such transfer shall be
consistent with the Agreement as hereby amended.
(11) Notwithstanding anything to the contrary in Article 6.1 and Schedule
02/1 of the Agreement, the participation in Parsicor in the amount of
CHF 5,000 shall remain in the Company.
(12) Notwithstanding anything to the contrary in Article 7.3(ii)(e) of the
Agreement, with respect to the board of directors of Swisswave, Seller
shall deliver only the resignation letter of Michel Mousselon regarding
the board of directors.
Notwithstanding anything to the contrary in Article 7.3(ii)(f) of the
Agreement, Seller shall not have to convene shareholders meetings to be
held on the Closing Date for each of the Company and SA Immeuble de la
Paix 101.
5/5
(13) Notwithstanding the Cap, the Threshold, any other limitation or
exclusion of liability set forth in the Agreement, the contents of the
Disclosed Documents or any other aspect of this Agreement, Seller shall
indemnify and hold harmless the Company from all tax liability arising
in the Company related to the debt forgiveness according to Article 6.3
of the Agreement. Seller shall be empowered to conduct the negotiations
with the relevant tax authorities in this specific respect on behalf of
the Company and with the reasonable support from Purchaser and the
Company.
(14) The terms used herein, to the extent not defined differently shall have
the meaning given to them in the Agreement.
(15) This Amendment shall be subject to the choice of law and arbitration
clause (Article 21) of the Agreement which shall be included in this
Amendment by reference thereto.
Geneva, March 1, 2004
For Seller
/s/ Michel Mousselon
- ----------------------
Michel Mousselon
For Purchaser
/s/ Richard Cote /s/ Kurt Burki
- ---------------------- ---------------------
Richard Cote Kurt Burki