EXHIBIT 2
DEED OF VARIATION, WAIVER AND SETTLEMENT
(1) THE XXXXX GROUP PUBLIC LIMITED COMPANY
(2) GENCORP INC.
(3) HENNINGES ELASTOMER UND KUNSTOFFTECHNIK GmbH & CO. KG
(4) GDX AUTOMOTIVE SAS and
(5) GDX AUTOMOTIVE SL
THIS DEED is made on 16 March 2002
BETWEEN:
(1) THE XXXXX GROUP PUBLIC LIMITED COMPANY (No. 55513) whose registered
office is at 0 Xx Xxxxx'x Xxxxxx Xxxxxx XX0X 0XX ("XXXXX");
(2) GENCORP INC. whose principal place of business is XX Xxx 000000,
Xxxxxxxxxx, XX 00000-0000 XXX ("GenCorp");
(3) HENNINGES ELASTOMER UND KUNSTOFFTECHNIK GMBH & CO. KG whose principal
place of business is Am Xxxxxxxx 0, 000000 Xxxxxxx-Xxxxxx, Xxxxxxx
Xxxxxxxx of Germany ("HEKG");
(4) GDX AUTOMOTIVE SAS whose principal place of business is 000 Xxxxxx xxx
Xxxxxx Xxxxxxx, 00000 Xxxxx, Xxxxxx ("GDX"); and
(5) GDX AUTOMOTIVE SL whose principal place of business is Xxxxxxx xx
Xxxxxxxxxx, Xx. 0 Xxxxxx Xxxxxx, 00000, Xxxxx ("GDX SL").
THE PARTIES AGREE AS FOLLOWS:
1.1 Save as set out in clause 7 of this Deed, each of GenCorp, HEKG, GDX and
GDX SL hereby jointly and severally acknowledge receipt from Xxxxx (on
behalf of the Vendors) of the sum of Euro 11,500,000 in full and final
settlement, discharge, waiver and release of all damages, costs, claims,
expenses and/or other sums of whatsoever nature and whether in contract
tort or otherwise, that GenCorp, HEKG, GDX and GDX SL, each on its own
behalf and on behalf of any other member of the Buyer's Group, any
associated company of GenCorp's, any contractor of GenCorp's and/or of
any associated company of GenCorp's and/or any of GenCorp's or their
respective officers, employees, agents, assignees and/or contractors
(collectively with GenCorp, the "GENCORP GROUP") may now have, may at any
time have had and/or may at any time hereafter have, but for the
execution of this Deed, against Xxxxx, the Vendors, the Seller's Group,
any of Xxxxx'x associated companies, any contractors of Xxxxx and/or of
any associated company of Xxxxx and/or any of Xxxxx'x or their respective
officers, employees, agents and/or successors in title (collectively,
"THE XXXXX GROUP") arising (whether directly, indirectly, consequentially
in contract tort or otherwise howsoever) from or otherwise in connection
with all other acts, matters and/or things covering and/or associated
with the agreement for the sale and purchase of all of the issued shares
of various companies comprising the Draftex International Car Body Seals
Division entered into by Xxxxx and GenCorp on 22 October 2000 (the
"AGREEMENT") (including, but not limited to the Supply Agreements and
obligations that were due to be performed by the parties on or before the
date hereof pursuant to the Intellectual Property Deed, the Intellectual
Property Assignments and the IT Transitional Services Procurement
Agreement each as defined within the Agreement) and all other acts,
matters and/or things covering and/or associated with the Agreement and
including, without prejudice to the generality of the foregoing, the
following:
(a) all and any claims or rights howsoever arising under the
Warranties;
(b) all and any other claims or rights howsoever arising under the
Agreement; and
(c) all and any claims or rights howsoever arising (including any
insurance claim) under the T16 contract entered into between
Xxxxxxx XX and Slic Gruchet SA dated 29 December 2000 (the "T-16
CONTRACT")
Immediately upon execution of this Deed by all the parties hereto, Xxxxx
shall provide for the transfer by CHAPS of the sum of Euro 11,500,000
to the account of GenCorp Inc. at Mellon Bank, Pittsburgh, Pennsylvania
USA (ABA No. 000000000), Account No. 000-0000 (GenCorp contact: Xxxxxx
Xxxxxx, 916-355-5231).
1.2 Save as set out in clause 7 of this Deed, Xxxxx acknowledges receipt from
GenCorp of good and valuable consideration, in full and final settlement,
discharge, waiver and release of all damages, costs, claims, expenses
and/or other sums of whatsoever nature and whether in contract, tort or
otherwise, that the Xxxxx Group may now have, may at any time have had
and/or may at any time hereafter have, but for the execution of this
Deed, against the GenCorp Group arising (whether directly, indirectly,
consequentially in contract, tort or otherwise howsoever) from or
otherwise in connection with all other acts, matters and/or things
covering and/or associated with the Agreement (including, but not limited
to the Supply Agreements and obligations that were due to be performed by
the parties on or before the date hereof pursuant to the Intellectual
Property Deed, the Intellectual Property Assignments and the IT
Transitional Services Procurement Agreement each as defined within the
Agreement) and all other acts, matters and/or things covering and/or
associated with the Agreement and including, without prejudice to the
generality of the foregoing all and any claims or rights howsoever
arising under the Agreement.
2. GenCorp hereby agrees that, so far as it lies within its reasonable
control, it will transfer, or procure the transfer of, the Excluded
Properties in Gruchet, France (the "GRUCHET PROPERTY") and in Viersen,
Germany, Plant 3 (the "VIERSEN PROPERTY") to Xxxxx (or such company as
Xxxxx may nominate), such transfers to take place as soon as practicable
and in any event on or before 31 May 2002. The consideration for such
transfers shall be on the basis set out in the letter dated 11 February
2002 from Xxxxxxx Xxxxxx of Xxxxx to Xxxxxxxx Xxxxxxxx-Xxxx of GenCorp.,
with such modifications and documentation as GenCorp, acting reasonably,
may deem necessary to ensure that the transfers will result in no actual
tax (or the use of any tax relief against such tax) or other cost being
borne by any member of the GenCorp Group or the current owners of the
Gruchet Property and the Viersen Property. Xxxxx shall indemnify the
GenCorp Group and the current owners of the Gruchet Property and the
Viersen Property on an "after tax basis" for any such tax borne or for
the amount of tax saved as a result of the use of such relief and for all
and any stamp duty, notarial fees and other costs arising from the
transfers. Xxxxx acknowledges and accepts that (i) any transfers will be
only to the extent that the parties believed to be the current owners
have title; (ii) no warranty or covenant of any description will be given
as to title, encumbrances, third party rights, physical condition or any
other matters and that each property will be sold "as is" and subject to
all encumbrances, rights, charges and other matters that actually or
contingently affect the property or anyone having an interest in it; and
(iii) neither GenCorp or any party under its control will necessarily be
able to produce title deeds or other relevant documents.
3. GenCorp agrees and undertakes not to breach the terms of the IT
Transitional Services- Procurement Agreement dated 29 December 2000
entered into between Draftex SA and
GenCorp (the "IT AGREEMENT") before 31 May 2004 the end of the current
term of the Atos Agreement (as defined in the IT Agreement), and also
agrees and undertakes that it will indemnify the Xxxxx Group, and keep
the Xxxxx Group indemnified against all and any losses, claims,
liabilities, and costs which the Xxxxx Group may incur as a result of any
termination of the IT Agreement by the GenCorp Group prior to the expiry
of the Atos Agreement on 31 May 2004, but not more than the total unpaid
amount which would have been payable by the GenCorp Group to the Xxxxx
Group under the IT Agreement had the IT Agreement remained in full force
and effect up to 31 May 2004 being the end of the current term of the
Atos Agreement; provided, however, that no payment shall be due from the
GenCorp Group pursuant to this clause 3 unless and to the extent that the
amount otherwise payable by the GenCorp Group pursuant to this clause 3
exceeds in the aggregate the sum of Euro 500,000.
4. GenCorp hereby agrees to pay, or procure the payment by a member of the
Buyer's Group, of Euro 92,020, in respect of its share of the costs and
the judgement in connection with the case of Xx Xxxxxxx Xxxxxxxxx and
the decision of the Cour X'Xxxxx D'Orleans embodied in the judgement of
Chambre Solennelle Sociale 17 January 2002. Xxxxx will be responsible
for the balance of the judgement and costs amounting, in aggregate,
to Euro 12,201. However in the event that GenCorp or a member of the
Buyer's Group appeals the decision then GenCorp (on behalf of itself and
the Buyer's Group) hereby acknowledges and undertakes that it will then
be solely responsible for all and any damages and costs including the
Euro 12,201 which would otherwise have been payable by Xxxxx.
5. GenCorp hereby acknowledges and confirms (on its own behalf and on behalf
of the GenCorp Group) that the Xxxxx Group may validly retain the sum of
Euro 815,000 previously withheld by the Xxxxx Group for rent (and any
VAT or sales tax thereon) owing by the GenCorp Group to the Xxxxx
Group for the Gruchet Property and the Viersen Property. Xxxxx hereby
agrees to pay with effect from and after 01 December 2001 in respect of
the Viersen Property and the Gruchet Property, by way of reimbursement
monthly in arrears the costs (in each case together with any VAT or
sales tax or other relevant tax or imposition) in respect of
maintenance, heating, insurance and security services provided for the
benefit of the Excluded Properties. Such costs to be reimbursed by the
Xxxxx Group shall be those evidenced by the production by GenCorp to
Xxxxx of appropriate third party supplier invoices or as agreed between
GenCorp and Xxxxx if such services are provided by the GenCorp Group and
Xxxxx shall continue to reimburse such costs to the GenCorp Group until
the Xxxxx Group assumes responsibility for the provision of these
services whether before or after the transfer to the Xxxxx Group of the
Excluded Properties. It is Xxxxx'x intention to assume responsibility
for the provision of these services as soon as practicable. The parties
confirm and acknowledge that the GenCorp Group obligation to pay the
Xxxxx Group Euro 815,000 in respect of rent owing for the Excluded
Properties is discharged by the Xxxxx Group's retention referred to in
this clause 5.
6. GenCorp hereby acknowledges and confirms (on its own behalf and on behalf
of the GenCorp Group) that the Xxxxx Group may validly retain the sum of
Euro 500,000 previously withheld by the Xxxxx Group to cover the
redundancy payments owed by the GenCorp Group to the Xxxxx Group in
connection with the Agreement. The parties confirm and acknowledge that
the GenCorp Group obligation to pay the Xxxxx Group Euro 500,000 in
respect of the redundancy payments in connection with the Agreement is
discharged by the Xxxxx Group's retention referred to in this clause 6.
7. The parties agree and confirm that:
(a) the Indemnities in the Agreement;
(b) the Tax Deed (entered into between Xxxxx Inc. and others and
GenCorp and others dated 29 December 2000);
(c) the obligations set out in clause 4.8(c) (of the Agreement); and
(d) the obligations of the parties that fall to be performed after the
date hereof pursuant to the Intellectual Property Deed, the
Intellectual Property Assignments and the IT Transitional Services
Procurement Agreement
shall continue in full force and effect in accordance with their original
terms and are unaffected by the terms of this Deed.
8. Save as set out in clause 7 of this Deed, the parties to this Deed hereby
agree that the Agreement and the other Transaction Documents are varied
to the extent that all and any rights, actions or claims (howsoever
arising) that the GenCorp Group and the Xxxxx Group might have, now or in
the future, under the Transaction Documents are hereby terminated and
extinguished with effect on and from the date of this Deed.
8.1 Xxxxx hereby agrees to remit, within three business days after execution
of this Deed, all amounts being held by Draftex S.A. pursuant to the
Contrat de Commissionnaire between Draftex S.A. and Slic Gruchet S.A.
dated 18 April 1996, pursuant to the Contrat de Commissionnaire between
Draftex S.A. and Slic Corvol S.A. dated 19 June 1996, and pursuant to the
Contrat de Commissionnaire between Draftex S.A. and Snappon S.A. dated 16
April 1996 (collectively, the "COMMISSION CONTRACTS"), except for the
amounts authorized to be retained pursuant to clauses 5 and 6 above, and
agrees to remit promptly (and in any event within three business days of
receipt) to Slic Gruchet S.A., Slic Corvol S.A.S. and/or Snappon S.A. all
further amounts collected by Draftex S.A. pursuant to the Commission
Contracts without deduction or set off.
9. The parties to this Deed hereby agree that the attached schedule, marked
'A' for the purpose of identification and initialled for and on behalf of
the parties, shall be the definitive allocation of the Consideration for
the purpose of clause 2.4 of the Agreement subject to making such
adjustment as is necessary to reflect the transfer of the Excluded
Properties under clause 2 above.
10. Save as amended by this Deed or as a result of the operation of the terms
of this Deed, the Agreement and the other Transaction Documents shall
continue in full force and effect.
11. Terms defined in the Agreement shall have the same meaning in this Deed
save where the context requires otherwise.
12. In this Deed "associated company" shall mean in relation to any company
that company's holding company and every subsidiary of that company's
holding company within the meaning of section 736 of the Companies Xxx
0000 and as from time to time amended and/or substituted and "contractor"
shall mean and include contractors, sub-contractors, sub-sub-contractors
and any further generation of sub-contractor.
13. The parties agree to keep the terms of this Deed confidential and not to
disclose its terms to any other party without the prior written consent
of the other, unless disclosure is required by law or the rules of a
regulatory body and these restrictions apply without limit of time.
14. The parties agree that they will meet their own legal and other costs,
charges and expenses connected with the negotiation, preparation and
implementation of this Deed. Unless otherwise specified in this Deed, any
payments required to be made pursuant to this Deed are required to be
made within 15 days after written demand therefor is received from the
party to whom payment is due.
15. This Deed (and any dispute, controversy, proceedings or claim of whatever
nature arising out of or in any way relating to this Deed or its
formation) shall be governed by and construed in accordance with English
Law in relation to any legal action or proceedings to enforce this Deed
or arising out of or in connection with this Deed, each of the parties
submits to the non-exclusive jurisdiction of the courts of England for
the purpose of hearing and determining any dispute arising out of this
Deed.
16. The parties shall do and execute, or procure the doing or execution of,
all such further acts and things as are reasonably required to give full
effect to the matters contemplated by this Deed (including, but not
limited to, the execution of further documentation). This Deed represents
the entire agreement of the parties with respect to its subject matter.
17. Each of the members of the GenCorp Group and Xxxxx Group who are given
any rights or benefits under this Deed shall be entitled to enforce those
rights and benefits against the parties to this Deed in accordance with
the Contract (Rights of Third Parties) Xxx 0000. Save as aforesaid, the
operation of the Contract (Rights of Third Parties) Xxx 0000 is hereby
excluded.
18. The provisions of clauses 18 (Variations), 19 (Waiver), 21 (Notices), 22
(Counterparts), 23 (Governing Law and Jurisdiction), 24 (Third Party
Rights) and 25 (Assignment) of the Agreement shall apply to this Deed as
if the same were incorporated herein mutatis mutandis.
IN WITNESS WHEREOF this document has been executed and delivered as a Deed the
day and year first before written.
[Signatures on next page]
Executed as a deed by THE XXXXX GROUP )
PUBLIC LIMITED COMPANY )
acting by Xxxxxxxx X. Silver, Director and )
Xxxxxxx X. X. Xxxxxx, Secretary )
/s/ Xxxxxxxx X. Silver
Director
/s/ Xxxxxxx X. X. Xxxxxx
Secretary
Executed as a deed by Xxxxxx X. Xxxxx )
duly authorised for and on behalf of )
GENCORP INC. )
)
/s/ Xxxxxx X. Xxxxx
Senior Vice President, Finance
Executed as a deed by Henniges Elastomer - )
und Kunstofftechnik Verwaltungs GmbH )
duly authorised for and on behalf of )
HENNINGES ELASTOMER UND )
KUNSTOFFTECHNIK GMBH & CO. KG )
/s/ Xxxxxx X. Xxxxx
Managing Director
Henniges Elastomer- und Kunstofftechnik
Verwaltungs GmbH
Executed as a deed by Xxxxxxx X. Xxxxxx )
duly authorised for and on behalf of )
GDX AUTOMOTIVE SAS )
/s/ Xxxxxxx X. Xxxxxx
President
Executed as a deed by Xxxxxx X. Xxxxx )
duly authorised for and on behalf of )
GDX AUTOMOTIVE SL )
)
/s/ Xxxxxx X. Xxxxx
Administrator
SEALS SCHEDULE A
EURO 000
COMPANY VENDOR COUNTRY
Draftex Inc Xxxxx Inc USA
Draftex Int Iberica Draftex SA France
Slic Corvol Draftex SA France
Slic Gruchet Draftex SA France
Snappon Draftex SA France
Draftex Beteiligungs DIL / DI (No 1) Germany
Draftex KG Germany
Draftex Optimit Czech
Draftex Wanyuan China
DIETC Germany
WWHQ Germany
Adjustments
Draftex Int (Pribor) DIL France
Total
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ACTUAL CONSIDERATION
EXTERNAL
BASIC PRICE GROUP DEBT
PRICE ADJUST DEBT / (CASH) CONSIDERATION CONSIDERATION
70,000 (8,486) 0 (2,986) 64,500 64,500
26,000 (95) 798 (856) 25,963 25,963
12,500 (992) (1,477) (434) 13,419 13,419
25,000 (9,882) (643) 2,434 13,327 13,327
12,500 (9,987) 759 91 1,663 1,663
97,000 4,651 0 0 101,651 57,732
14,756 5,103 (19,859)
9,636 2,896 (12,532)
0 2,242 (2,242)
7,537 (784) (6,753)
2,618 (85) (2,533)
0 0 0
0 0 0 0 0
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243,000 (24,791) 33,984 7,621 176,604 176,604
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