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EXHIBIT 10.2
AGREEMENT FOR THE SALE AND PURCHASE
OF
SHARES IN
BRINK BV
between
AAS HOLDINGS, INC.
AAS HOLDINGS, LLC
BRINK HOLDING BV
and
BRINK BV
XXXXXXXX CHANCE
Xxxxxxxxxx 000
0000 XX XXXXXXXXX
Telephone: (x00-00)0000-000
Telefax: (x00-00)0000-000
ref: JF/MBS
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TABLE OF CONTENTS
ARTICLE 1: SALE AND PURCHASE, CONSIDERATION............................... 2
ARTICLE 2: INTERCOMPANY INDEBTEDNESS...................................... 3
ARTICLE 3: ACTION PENDING COMPLETION...................................... 3
ARTICLE 4: CONDITIONS PRECEDENT........................................... 3
ARTICLE 5: COMPLETION..................................................... 4
ARTICLE 6: POST-COMPLETION MATTERS........................................ 6
ARTICLE 7: REPRESENTATIONS AND WARRANTIES................................. 7
ARTICLE 8: INDEMNIFICATION................................................ 7
ARTICLE 9: LIMITATION OF LIABILITY........................................ 9
ARTICLE 10: ENVIRONMENTAL INDEMNITY....................................... 10
ARTICLE 11: RESTRICTIVE COVENANTS......................................... 10
ARTICLE 12: COSTS AND EXPENSES............................................ 12
ARTICLE 13: PRESS ANNOUNCEMENTS........................................... 12
ARTICLE 14: NOTICES....................................................... 12
ARTICLE 15: JOINT AND SEVERAL LIABILITY................................... 14
ARTICLE 16: MISCELLANEOUS PROVISIONS...................................... 14
SCHEDULE 1: SUBSIDIARIES.................................................. 16
SCHEDULE 2: CASH, FUNDED AND INTERCOMPANY INDEBTEDNESS.................... 17
SCHEDULE 3: REPRESENTATIONS AND WARRANTIES OF VENDOR...................... 18
SCHEDULE 4: REPRESENTATIONS AND WARRANTIES OF THE PURCHASER............... 28
SCHEDULE 5: KEY OFFICERS.................................................. 29
SCHEDULE 6: VENDOR'S CERTIFICATE.......................................... 30
(1)
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SCHEDULE 7: FORM OF DEED OF TRANSFER OF SHARES............................ 31
SCHEDULE 8: FORM OF TRADE NAME AND LOGO AGREEMENT......................... 32
SCHEDULE 9: FORM OF NON-COMPETE LETTER.................................... 33
EXHIBITS: 2.1
4
5.1
5.2
6.4
9.3
10.3
10.4
(2)
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AGREEMENT FOR THE SALE AND PURCHASE
OF
SHARES IN BRINK BV
This Agreement is made the 30th day of October 1996
BETWEEN:
1. AAS HOLDINGS, INC., a limited liability company incorporated under the
laws of the State of Delaware and having its principal place of
business at Sterling Town Center, 00000 Xxxx Xxxx, Xxxxx 000, Xxxxxxxx
Xxxxxxx, Xxxxxxxx, X.X.X., (the "PURCHASER");
2. AAS HOLDINGS, LLC, a limited liability company incorporated under the
laws of the State of Delaware and having its principal place of
business at Sterling Town Center, 00000 Xxxx Xxxx, Xxxxx 000, Xxxxxxxx
Xxxxxxx, Xxxxxxxx, X.X.X., ("AHL");
3. BRINK HOLDING BV, a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid) incorporated under the
laws of The Netherlands and having its registered office at
Xxxxxxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx (the "VENDOR"); and
4. BRINK BV, a private company with limited liability (besloten
vennootschap met beperkte aansprakelijkheid) incorporated under the
laws of The Netherlands and having its registered office at
Xxxxxxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx (the "COMPANY");
WHEREAS:
(A) The Company has an issued share capital of NLG 50,000, consisting of
200 shares with a nominal value of NLG 250 each (the "SHARES");
(B) All of the Shares are owned by the Vendor;
(C) The Company is the owner of the entire share capitals of the companies
listed in SCHEDULE 1 (the "SUBSIDIARIES");
(D) The Company and the Subsidiaries are engaged in the business of the
design, production, sale and marketing of car and van towing systems
and related products (the "BUSINESS");
(E) The consultation procedures under the Merger Code (SER-besluit
Fusiegedragsregels 1975) and the Works Council Act (Wet op de
Ondernemingsraden) with respect to the transactions contemplated in
this Agreement have been concluded to the satisfaction of the Vendor
and the Purchaser;
(F) The Vendor has agreed to sell the Shares and the Purchaser has agreed
to purchase the Shares,
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subject to the terms and conditions contained in this Agreement;
NOW IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1: SALE AND PURCHASE, CONSIDERATION
1.1 The Vendor hereby sells to the Purchaser and the Purchaser hereby
purchases from the Vendor the Shares, free from all liens, charges and
encumbrances and together with all accrued benefits and rights attached
thereto.
1.2 Subject to Articles 1.3, 1.4 and 1.5, the consideration due by the
Purchaser to the Vendor for the sale of the Shares shall be a total
amount of one hundred and seven million five hundred thousand Dutch
Guilders (NLG 107,500,000) (the "CONSIDERATION").
1.3 The Consideration shall be subject to the following adjustments:
(a) there shall be added an amount, if any, by which Cash at
Completion is greater than Funded Indebtedness at Completion; and
(b) there shall be deducted an amount, if any, by which Cash at
Completion is less than Funded Indebtedness at Completion.
For the purposes of the above, the parties have in SCHEDULE 2 hereto
described the items constituting "Cash" and the items constituting
"Funded Indebtedness" as at 28 October 1996. The corresponding
adjustment to the Consideration is reflected in the amount payable on
Completion set out in Article 5.2(d)(i).
1.4 The Consideration shall be subject to a guilder for guilder reduction
by the amount of any dividend payments, contributions or distributions
of whatever nature made or declared to be made outside of the ordinary
course of business by the Company and the Subsidiaries to the Vendor or
for the Vendor's benefit between 1 January 1996 and Completion.
1.5 The Consideration shall be subject to a guilder for guilder reduction
by the net amount of Intercompany Indebtedness due by the Company to
the Vendor and any group companies of the Vendor other than the
Subsidiaries as at Completion.
For the purposes of the above, the parties have in SCHEDULE 2 specified
such net Intercompany Indebtedness as at 28 October 1996. The
corresponding adjustment to the Consideration is reflected in the
amount payable on Completion set out in Article 5.2(d)(i).
1.6 The sale and purchase of the Shares shall be completed at the date and
place and in the manner
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set forth in Article 5 ("COMPLETION").
ARTICLE 2: INTERCOMPANY INDEBTEDNESS
2.1 At Completion, the Vendor shall arrange for the repayment of all
amounts due to the Company and the Subsidiaries by the Vendor and any
group companies of the Vendor (but, for the avoidance of doubt,
excluding the Subsidiairies), and the Company shall arrange for
repayment of all amounts due to the Vendor and any group companies of
the Vendor (other than the Subsidiaries) by the Company and the
Subsidiaries, together with interest accrued, but excluding any amounts
originated in the ordinary course of the relevant parties' business
(the "INTERCOMPANY INDEBTEDNESS").
2.2 The payments referred to in Article 2.1 shall be made in the manner set
forth in Article 5.
ARTICLE 3: ACTION PENDING COMPLETION
3.1 The Company shall not and shall procure that the Subsidiaries shall not
without the prior written consent of the Purchaser (such consent not to
be unreasonably withheld) prior to Completion:
(a) operate the Business other than in the ordinary course,
consistent with past practice, with the aim to preserve its
business organisation, including the services of its officers and
employees, and its business relationships with customers,
suppliers and others having business dealings with it; for the
avoidance of doubt, any act or thing as a consequence of which
the statements in SCHEDULE 3 would be rendered untrue,
incomplete, inaccurate or misleading in any material respect
shall be considered to be outside the ordinary course;
(b) make any expenditure which is not within the ordinary course of
the business of the Company and its Subsidiaries; or
(c) increase any borrowings of the Company or any of its Subsidiaries
other than within the ordinary course of their business.
3.2 The Vendor shall not knowingly do or refrain from doing any act or
thing which would render the statements in SCHEDULE 3 untrue,
incomplete, inaccurate or misleading in any material respect.
ARTICLE 4: CONDITIONS PRECEDENT
4.1 The obligations of the Purchaser under this Agreement are conditional
upon the following conditions precedent (opschortende voorwaarden)
being fulfilled on or prior to Completion or,
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as the case may be, waived by the Purchaser by written notice to the
Vendor:
(a) the Vendor and the Company having complied in all respects with
their respective obligations under this Agreement and under any
ancillary documents entered into pursuant hereto;
(b) satisfactory terms of the employment agreements to be entered
into by the persons listed in SCHEDULE 5 having been agreed
between the Purchaser and such persons; and
(c) Messrs Xxxxxx, Xxx and Xxx Xxxxx having signed the non-compete
letter in the form attached hereto as SCHEDULE 9.
4.2 The parties shall use their best efforts to procure that the conditions
mentioned under paragraph (b) and (c) of Article 4.1 shall be fulfilled
as soon as possible and in any event on or prior to Completion.
ARTICLE 5: COMPLETION
5.1 Completion shall take place on 30 October 1996 at the offices of Xxxxx
& Xxxxxxx, Xxxxxxxxxxx 00, Xxxxxxxxx, unless otherwise agreed between
the parties hereto.
5.2 The following shall take place (or, to the extent that any of the
documents referred to below shall have been executed before Completion,
shall be deemed to have taken place) at Completion in the following
order:
(a) unless Completion takes place on the date hereof, the Vendor
shall submit to the Purchaser a certificate to the effect that
(i) the statements contained in paragraphs 1, 7, 13.1, 13.4, 13.5
and 14 of SCHEDULE 3 are true, complete, correct in all respects
and not misleading at Completion, and (ii) the Vendor and the
Company have complied in all respects with their respective
obligations under this Agreement and under any ancillary
documents entered into pursuant hereto; such certificate shall be
substantially in the form set forth in SCHEDULE 6;
(b) the Vendor, the Purchaser and the Company shall sign a Share
Transfer Deed in respect of the Shares substantially in the form
set forth in SCHEDULE 7;
(c) the Vendor shall submit to the Purchaser evidence of the release
and discharge of each guarantee, mortgage and charge given by the
Company and the Subsidiaries in favour of any bank or other
financial institution being conditional only on the repayment of
all Funded Indebtedness (including all pre-payment penalties in
respect thereof); the Purchaser shall be responsible for all
pre-payment penalties payable in connection therewith up to a
maximum of NLG 100,000; any pre-payment penalties in excess of
this amount shall be for the account of the Vendor;
(d) the Purchaser shall pay the Consideration due to the Vendor as
follows:
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(i) by transferring by telephone transfer an amount of
seventy-one million two hundred and sixty-five thousand
Dutch Guilders (NLG 71,265,000.00) to bank account number
54.31.72.201 at ABN AMRO Bank N.V in the name of Stichting
Derdengelden notariaat Xxxxx & Xxxxxxx;
(ii) by crediting on behalf of the Vendor an amount of twelve
million five hundred thousand Dutch guilders (NLG 12,500,00)
against the obligation of the Vendor to make to AHL an
interest bearing loan for an equivalent amount (the "VENDOR
LOAN") in respect of which AHL has issued a promissory note
to the Vendor of even date herewith (the "JUNIOR
SUBORDINATED PROMISSORY NOTE");
(iii) by crediting on behalf of the Vendor an amount of seven
million three hundred thousand Dutch Guilders (NLG
7,300,000) against the obligations of Messrs Xxxxxx, Xxx and
Ko Brink to pay up certain stock in AHL pursuant to a
subscription agreement of even date herewith.
In addition, the Purchaser shall on behalf of the Company and the
Subsidiaries settle the net Intercompany Indebtedness as at 28
October 1996, by transferring to the Vendor by telephone transfer
an amount of two million five hundred thousand Dutch (NLG
2,500,000) to bank account number 54.31.72.201 at ABN AMRO Bank
N.V. in the name of Stichting Derdengelden Notariaat Xxxxx &
Xxxxxxx.
(e) the Vendor, the Company and AHL shall sign a confirmation of
receipt of the monies referred to in paragraph (d);
(f) the Vendor and AHL shall execute the Junior Subordinated
Promissory Note;
(g) the Vendor shall sign and deliver to Purchaser a letter in which
it resigns as managing director of the Company and confirms that
it has no claims for compensation for loss of such office;
(h) the Purchaser shall, in its capacity as shareholder of the
Company, adopt a written Shareholders' Resolution to accept the
resignation referred to in paragraph (g) and to appoint Messrs
X.X. Xxxxxxxxx and X. xx Xxxxx as managing directors of the
Company;
(i) the Vendor shall produce a duly signed stock transfer form in
respect of the transfer to the Company of one nominee share held
by the Vendor in the capital of Brink UK Ltd (a Subsidiary);
(j) the Vendor, the Purchaser and the Company shall enter into the
Trade Name and Logo Agreement in the form of SCHEDULE 8;
(k) the Vendor shall provide the Purchaser with the Insurance
Statement (as defined in Article 6.6);
(l) the Purchaser shall produce to the Vendor a letter in respect of
the appointment of Mr.
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Xxxxxx Xxxxx as supervisory director of the new Dutch holding
company upon its incorporation as set out in Article 6.7; and
(m) the Vendor and the Company shall do all such further acts and
execute all such further documents as shall in the reasonable
opinion of the Purchaser be necessary to fully effect the transfer
of the Shares to the Purchaser and to vest the ownership thereof
in the Purchaser.
ARTICLE 6: POST-COMPLETION MATTERS
6.1 The Vendor and the Purchaser shall within 15 days of Completion jointly
determine the further adjustment to the Consideration pursuant to
Articles 1.3, 1.4 and 1.5 for the period between 28 October 1996 up to
and including Completion, using in respect of the adjustment pursuant
to Article 1.3 the definitions of "Cash" and "Funded Indebtedness" as
per SCHEDULE 2.
6.2 If the Vendor and the Purchaser cannot agree the amounts of Cash at
Completion and Funded Indebtedness at Completion and Intercompany
Indebtedness as at Completion in accordance with Article 6.1, either
party may refer the matter to an independent firm of registered
accountants agreed by the parties or, in default of agreement within 14
days, an independent firm of registered accountants nominated by the
Chairman for the time being of the Dutch Institute of Registered
Accountants (the "EXPERT"), on the basis that the Expert is to make a
decision on the matter in dispute within 30 days starting on the day
after receiving the reference. In a reference, the Expert shall act as
an expert and not as an arbitrator. The decision of the Expert is,
without prejudice to section 7:904 of the Dutch Civil Code, final and
binding on both parties. The Vendor and the Purchaser shall each pay
one half of the Expert's costs in respect of a reference. The necessary
balancing payment (if any) shall be made within seven days after the
date on which the parties reach agreement or the date of notification
of the Expert's decision.
6.3 The Vendor as and when requested by the Purchaser and the Purchaser as
and when requested by the Vendor after Completion shall execute and do
or procure to be executed and done all such further documents, forms,
assignments, transfers, assurances and other things as may be requisite
for giving full effect to this Agreement.
6.4 The Vendor shall provide or procure to be provided to the Purchaser all
information relevant to the Purchaser in its possession or under its
control that the Purchaser shall from time to time reasonably require
(both before and after Completion) directly relating to the business
and affairs of the Company or the Subsidiaries and will give or procure
to be given to the Purchaser and its advisers such access (including
the right to take copies) to such documents containing such information
relevant to the Purchaser as the Purchaser may from time to time
reasonably require.
6.5 The Purchaser shall (i) submit the requisite K2 notification form to
the Swedish competition authority in accordance with the Swedish
Competition Act (1993:20), and (ii) submit such further information to
the Bundes Kartelambt in Germany as it may require in connection with
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the pre-notification of the transaction contemplated by this Agreement.
6.6 The Vendor shall ensure that the Company and the Subsidiaries will for
a period of three months after Completion continue to be insured under
the Insurance Policies (as defined in paragraph 4 of Schedule 3). The
Company shall at the Vendor's first request reimburse the Vendor such
part of the insurance premium payable under the Insurance Policies as
shall be attributable to the insurance cover provided to the Company
and the Subsidiaries.
On Completion, the Vendor shall produce a statement from its insurers
confirming that the Companies and the Subsidiaries shall continue to be
insured as set out in this Article 6.6 (the "INSURANCE STATEMENT").
6.7 The Purchaser shall (i) procure that the articles of association of the
new Dutch holding company to be incorporated as part of the proposed
reorganisation shall provide for a board of supervisory directors, and
(ii) appoint Xx Xxxxxx Xxxxx as supervisory director of such company.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES
7.1 The Vendor hereby represents and warrants (xxxxx xx voor in) to the
Purchaser that each of the statements contained in SCHEDULE 3 hereto is
true, complete, accurate in all respects and not misleading as at the
date of this Agreement and that the statements contained in paragraphs
1, 7, 13.1, 13.4, 13.5 and 14 of SCHEDULE 3 will be true, complete,
accurate in all respects and not misleading on Completion and on each
day between the date hereof and Completion. The Vendor acknowledges
that the said representations and warranties are material and that the
accuracy in all respects of these representations and warranties is
essential for the Purchaser's decision to enter into this Agreement on
the terms herein contained.
7.2 The Purchaser confirms that it has carried out investigations into the
state of affairs of the Company and the Subsidiaries, and that the
results of such investigations were satisfactory to the Purchaser.
However, the Vendor and the Purchaser agree that any such
investigations carried out by the Purchaser or by representatives or
advisers of the Purchaser shall not relieve the Vendor of its
obligations under any warranty or representation made herein, except in
the event that the Vendor can demonstrate that the Purchaser on the
date hereof or on Completion was actually aware of an obvious breach by
the Vendor of any such obligations. The Purchaser hereby confirms that
it is not on the date hereof actually aware of an obvious breach by the
Vendor of any of its obligations under any warranty or representation
made by the Vendor herein.
7.3 The Purchaser hereby represents and warrants (xxxxx xx voor in) to the
Vendor that each of the statements contained in SCHEDULE 4 hereto is
true, complete, accurate in all respects and not misleading as at the
date of this Agreement and will be true, complete, accurate in all
respects and not misleading on Completion and on each day between the
date hereof and Completion. The Purchaser acknowledges that the said
representations and warranties are material and that the accuracy in
all respects of these representations and warranties is essential for
the Vendor's
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decision to enter into this Agreement on the terms herein contained.
ARTICLE 8: INDEMNIFICATION
8.1 In the event that there will be or will appear to be any
misrepresentation, breach of warranty or non-fulfilment of any
agreement on the part of the Vendor contained in this Agreement the
Vendor shall:
(a) indemnify and hold harmless the Purchaser (or, at the Purchaser's
option, the Company or one of the Subsidiaries) from and against
any and all damages, liabilities, actions, legal proceedings,
costs and expenses (including but not limited to legal and other
advisers' fees and expenses) incurred by the Purchaser, the
Company or one of the Subsidiaries, resulting, directly or
indirectly, from any such misrepresentation, breach of warranty or
non-fulfilment of any agreement, if and insofar as not
specifically provided for in the Accounts (as defined in paragraph
2 of SCHEDULE 3); and
(b) at the request of the Purchaser take whatever steps are required
for the Purchaser, the Company and the Subsidiaries to be brought
in the financial position they would have been in if such
misrepresentation, breach of warranty or non-fulfilment would not
have occurred.
8.2 If the Purchaser or the Company becomes aware of any matter which will
result in the Vendor being liable pursuant to Article 8.1, the
Purchaser and the Company shall:
(a) as soon as possible give written notice thereof to the Vendor;
(b) provide to the Vendor and its advisers reasonable access to the
relevant premises, assets, documents and records;
(c) take such action as the Vendor may reasonably request to avoid,
dispute or mitigate any claim or matter which would give rise to a
claim under this Agreement on the basis that the Purchaser and the
Company shall be fully indemnified by the Vendor as to all costs
and expenses which they may incur by reason of such action;
(d) take such action as may in the reasonable opinion of the Purchaser
be required to avoid or diminish an adverse effect on the
financial position or the business of the Purchaser, the Company
or the Subsidiaries.
8.3 Without prejudice to its other rights and remedies, the Purchaser shall
be entitled (but shall not at any time be required) to elect that all
or part of the amount of any liability of the Vendor arising pursuant
to this Article 8 or any other provision of this Agreement be satisfied
by the
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Purchaser's obligation to repay the Vendor Loan being reduced by an
equivalent amount, regardless of whether the Vendor Loan or such part
thereof shall at that time be due and payable.
8.4 Neither the Purchaser nor the Company or any Subsidiary shall settle or
compromise any potential claim without the prior consent of the Vendor
(such consent not to be unreasonably withheld), provided that such
consent shall no longer be required if timely requested by the
Purchaser or the Company and not received within fourteen days after
receipt by the Vendor of a notice given by the Purchaser pursuant to
Article 8.2(a), or so much sooner as the third party with whom a
settlement or compromise is to be made shall require a response.
8.5 The Vendor shall be entitled, if it so elects within fourteen days
after receipt of a notice given by the Purchaser pursuant to Article
8.2(a), to take control of the defense, settlement, negotiation or
other resolution of any claim or other event giving rise to any
liability for indemnification hereunder and to employ and engage
lawyers of its own choice to handle and defend such matter, at its
cost, risk and expense; and the Purchaser and the Company shall
cooperate in all reasonable respects with the Vendor in such matter;
provided, however, (i) that the Purchaser and the Company may
participate in such matter at its own cost, (ii) that the Purchaser and
the Company shall on a timely basis receive full information of any
action to be taken by the Vendor, and (iii) that the Vendor shall in
its handling of the matter not act in an unreasonable manner. If the
Vendor does not or not timely notify the Purchaser in writing that the
Vendor has elected to assume the defense of a matter, the Purchaser
shall be entitled to take control of that matter at the Vendor's cost
and expense.
8.6 For the purposes of this Article 8, in calculating the Vendor's
liability for any claim for indemnification hereunder, such liability
shall be reduced by the sum of the following economic benefits, if any,
pertaining to that particular claim:
(i) any amount actually recovered under an insurance policy by the
Purchaser, the Company or one of the Subsidiaries, with respect to
the matter to which such claim relates; and
(ii) the net present value of any payment actually received or certain
to be received or any reduction of an amount due and payable
actually obtained or certain to be obtained, pursuant to any tax
laws.
In the event that the Purchaser, the Company or one of the Subsidiaries
pays a claim covered by insurance for which it is entitled to
indemnification by the Vendor hereunder, the Purchaser shall procure
that all relevant rights with respect to such insurance cover are
assigned to the Vendor.
ARTICLE 9: LIMITATION OF LIABILITY
9.1 The Vendor shall not be liable to the Purchaser or, as the case may be,
to the Company or one of its Subsidiaries pursuant to Article 8 for any
amounts claimed by notice to the Vendor sent
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after:
(a) 31 December 2002, to the extent that claims are based on any
matter relating to taxation (which term shall include social
security charges (both the employer's part and the employee's
part) and any penalties or interest payable to the relevant
authorities);
(b) four years after Completion, to the extent that claims are based
on environmental matters; and
(c) two years after Completion in respect of any other claims.
9.2 The Vendor shall be liable pursuant to Article 8 only if the amounts
claimed exceed NLG 750,000 in total, at which time the Vendor shall be
liable for the full amount claimed. Individual claims of less than NLG
100,000 will not be taken into account. The total liability of the
Vendor pursuant to Article 8 shall not exceed an amount of NLG
20,000,000.
ARTICLE 10: ENVIRONMENTAL INDEMNITY
10.1 The Vendor shall, subject to the limitations set out in Article 10.3,
indemnify and hold harmless the Purchaser (or at the Purchasers'
option, the Company or any of the Subsidiaries) from and against any
and all damage, liability, action, legal proceedings, governmental
orders, costs and expenses (including but limited to legal and other
advisers' fees and expenses) incurred by the Purchaser, the Company or
one of the Subsidiaries and resulting directly or indirectly from any
soil or groundwater contamination at the site located in Betheny,
France and currently occupied by SFEA S.A..
10.2 The Purchaser, or as the case may be, the Company or one of it
Subsidiaries, shall claim any amounts due by the Vendor by notice in
writing. The Vendor shall not be liable for any amount claimed by
notice to the Vendor sent after 31 December 1999.
10.3 The total liability of the Vendor pursuant to this Article 10 shall not
exceed an amount of NLG 1,000,000. Save for Article 8.3, the provisions
of Article 8 and 9 do not apply to this Article 10.
ARTICLE 11: RESTRICTIVE COVENANTS
11.1 The Vendor hereby covenants and undertakes with the Purchaser that
neither it nor any of its subsidiaries will:
(a) at any time after Completion disclose or use for any purpose any
information concerning the Company or the Subsidiaries, except:
(i) to the extent required by law or any competent authority, after
prior consultation with the Purchaser;
(ii) to its professional advisers under circumstances of
confidentiality and only to the extent
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necessary for any lawful purpose of the Vendor;
(iii) to the extent that such information is at the date hereof or
hereafter becomes public knowledge otherwise than through improper
disclosure by any person; or
(b) at any time prior to the expiry of three years from the date of
Completion, either alone or jointly with others, directly or
indirectly, do any of the following without the Purchaser's prior
written consent:
(i) directly or indirectly incorporate, establish or engage in any
business competing with any of the businesses now carried on by
the Company and the Subsidiaries ("AAS COMPETING BUSINESS");
(ii) acquire or hold a controlling interest in any company or business
which is itself or through any company or business directly or
indirectly controlled by it is engaged in any AAS Competing
Business, unless such AAS Competing Business accounts for not
more than 10% of the gross turnover of such company or business,
in which case the Vendor shall use its reasonable efforts to
ensure that such AAS Competing Business is offered for sale to
the Company at its fair market value;
(iii) participate in a joint venture or other co-operative arrangement
aimed at generating AAS Competing Business; and
(iv) employ or solicit the employment of any person earning an annual
salary of more than NLG 75,000 who is on the date hereof or has
during the month prior to the date hereof been an employee of the
Company or one of the Subsidiaries.
11.2 The Purchaser hereby covenants and undertakes with the Vendor that
neither it nor any of its subsidiaries will:
(a) at any time after Completion disclose or use for any purpose any
information concerning the Vendor, except:
(i) to the extent required by law or any competent authority, after
prior consultation with the Vendor;
(ii) to its professional advisers under circumstances of
confidentiality and only to the extent necessary for any lawful
purpose of the Purchaser;
(iii) to the extent that such information is at the date hereof or
hereafter becomes public knowledge otherwise than through
improper disclosure by any person; or
(b) at any time prior to the expiry of three years from the date of
Completion, either alone or jointly with others, directly or
indirectly, do any of the following without the Vendor's prior written
consent:
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(i) directly or indirectly incorporate, establish or engage in any
business competing with any of the businesses now carried on by
the Vendor and its subsidiaries (excluding the Company and the
Subsidiaries), such businesses being the production and sales of
air heating equipment and office furniture ("VENDOR COMPETING
BUSINESS");
(ii) acquire or hold a controlling interest in any company or
business which is itself or through any company or business
directly or indirectly controlled by it is engaged in any Vendor
Competing Business, unless such Vendor Competing Business
accounts for not more than 10% of the gross turnover of such
company or business, in which case the Purchaser shall use its
reasonable efforts to ensure that such Vendor Competing Business
is offered for sale to the Vendor at its fair market value;
(iii) participate in a joint venture or other co-operative arrangement
aimed at generating Vendor Competing Business; and
(iv) employ or solicit the employment of any person earning an annual
salary of more than NLG 75,000 who is on the date hereof or has
during the month prior to the date hereof been an employee of the
Vendor.
11.3 AHL hereby covenants and undertakes with the Vendor that for as long as
either Xx Xxxxxx Xxxxx, Xx Xxx Xxxxx or Xx Xxx Xxxxx either directly or
indirectly invest in AHL, it will conduct all towbar related production
and trading activities through companies and other entities directly or
indirectly controlled by AHL.
11.4 The Purchaser, the Company and the Vendor shall on Completion, and the
Vendor and the Purchaser shall procure that within 14 days after
Completion the Subsidiairies, Brink Luchtverwarming B.V., Brink
Plaattechniek B.V. and Brink Beheer B.V. shall enter into the Trade
Name and Logo Agreement in the form of Schedule 8.
ARTICLE 12: COSTS AND EXPENSES
The costs incurred by the Vendor, the Company and the Subsidiaries in relation
to the Purchaser's due diligence investigations shall be paid by the Company, up
to a maximum of NLG 50,000. All other costs and expenses incurred by the Vendor,
the Company or the Subsidiaries in connection with the preparation of this
Agreement and the transactions contemplated hereby, including (without
limitation) legal, fiscal and auditing fees and expenses, will be paid by the
Vendor, and all such costs and expenses incurred by the Purchaser will be paid
by the Purchaser.
ARTICLE 13: PRESS ANNOUNCEMENTS
Neither of the parties hereto shall make any press release or public
announcement relating to the transactions contemplated by this Agreement without
the other party's prior written consent, unless there is a statutory obligation
to make a press release or public announcement and the other party's consent is
unreasonably delayed or withheld.
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ARTICLE 14: NOTICES
14.1 All notices, requests, claims, demands and other communications
hereunder shall be delivered to the parties in person or sent to the
addresses set out in the heading hereof by registered letter, postage
prepaid and return receipt requested or by telefax as follows:
if to the Vendor, to: Brink Holding B.V. C/x Xxxxx &
Attn: Xxxxxxx
Telefax: Mr. M. van Bremen
Address: # 00 (0) 00 000 0000
Xxxxxx Gebouw
Xxxxxxxxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
if the to AHL, to: AAS Holdings, LLC
Attn: Chief Financial Officer
Telefax: # (0)000 000 0000
Address: Sterling Town Center
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
with a copy to: Xxxxxxxx Chance
Attn: Xx. X. Xxxxxx
Telefax: # 00 (0) 00-0000000
Address: Xxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
if the to the Purchaser, to: AAS Holdings, Inc.
Attn: Chief Financial Officer
Telefax: # (0) 000 000 0000
Address: c/o AAS Holdings, LLC
Sterling Town Center
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
with a copy to: Xxxxxxxx Chance
Attn: Xx. X. Xxxxxx
Telefax: # 00 (0) 00-0000000
Address: Xxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
if to the Company, to: Brink B.V.
Attn: Financial Director
Telefax: # (31) (0) 000-000000
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Address: Xxxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
with a copy to: Xxxxxxxx Chance
Attn: Xx. X. Xxxxxx
Telefax: # 00 (0) 00-0000000
Address: Xxxxxxxxxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
14.2 Either party may change its address for the purpose of this Agreement
by giving notice of such change to the other pursuant to the provisions
of this Article.
14.3 Any notice, demand or other communication sent by mail shall be deemed
to have been received by the party to whom it was sent at the end of
the day shown as the day of receipt on the return receipt sent with the
same. Any notice, demand or other communication sent by telefax shall
be deemed, in the absence of proof to the contrary, to have been
received by the party to whom it was sent on the date of despatch,
provided that the report generated by the sender's telefax machine
shows that all pages of such notice, demand or other communication were
properly transmitted to the recipient's telefax number.
ARTICLE 15: JOINT AND SEVERAL LIABILITY
AHL shall be jointly and severally liable for the due performance of the
obligations of the Purchaser under this Agreement.
ARTICLE 16: MISCELLANEOUS PROVISIONS
16.1 This Agreement shall be governed by and construed in accordance with
the laws of The Netherlands.
16.2 The Schedules and Exhibits hereto form an integral part hereof.
16.3 This Agreement supersedes all prior written and oral agreements and
arrangements between the parties hereto with regard to the subject
matter hereof.
16.4 None of the parties may assign or agree to assign any of its rights and
obligations under this Agreement without the prior written consent of
the other parties, except that the Purchaser shall be entitled without
such written consent to assign to any third party the benefit of the
warranties and the associated obligations of the Vendor pursuant to
Articles 7, 8 and 10.
16.5 Any dispute arising under or in connection with this Agreement shall be
settled by the competent courts in Amsterdam, The Netherlands, subject
to appeal and appeal in the second instance (cassatie).
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IN WITNESS WHEREOF this Agreement has been executed by the parties hereto in
Amsterdam in two counterparts on the date first above written
for and on behalf of
AAS HOLDINGS, INC.
-----------------------------------
Xxxxxxx X. Xxxxxx,
Duly authorised representative
for and on behalf of
AAS HOLDINGS, LLC
-----------------------------------
Xxxxxxx X. Xxxxxx
Vice President Finance and Administration/Chief Financial Officer
for and on behalf of
BRINK HOLDING BV
-----------------------------------
Brink Beheer B.V. represented by its director:
Xxxxxx X. Xxxxx
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for and on behalf of
BRINK BV
-----------------------------------
Brink Holding B.V. represented by its director:
Brink Beheer B.V. represented by by its director:
Xxxxxx X. Xxxxx
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SCHEDULE 1: SUBSIDIARIES
NAME COUNTRY OF INCORPORATION SHARES HELD BY
1. Brink Trekhaken BV The Netherlands Brink BV (100%)
2. Brink Sverige AB Sweden Brink BV (100%)
3. Brink U.K. Limited England Brink BV (100%)
4. Nordisk Komponent Holding A/S Denmark Brink BV (100%)
5. Brink France SarL France Brink BV (100%)
6. Brink A/S Denmark Nordisk Komponent
Holding A/S (100%)
7. Financiere J&JCG SarL France Brink France SarL
(100%)
8. SFEA SA France Brink France SarL
(977 shares)
Financiere J&JCG SarL
(2017 shares)
Brink B.V.
(1 share)*
Xx Xxxxxx Xxxxx
(1 share)*
Mr Bonnefant
(1 share)*
Xx Xxxxxx
(1 share)*
Mr Rengelink
(1 share)*
Mr Van Kesteren
(1 share)*
9. SCI L'Elmontaise France Brink France SarL
(33.7%)
Financiere J&JCG
SarL
(66.3%)
* nominee shares only
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SCHEDULE 2: CASH, FUNDED AND INTERCOMPANY INDEBTEDNESS
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SCHEDULE 3: REPRESENTATIONS AND WARRANTIES OF VENDOR
1. ORGANISATION, TITLE TO SHARES
1.1 The Company is duly incorporated and existing as a private company with
limited liability (besloten vennootschap met beperkte
aansprakelijkheid) under the laws of The Netherlands and has the power
to own its property and to carry on its business as presently
conducted. Each of the Subsidiaries is duly incorporated and existing
as a company with limited liability in the jurisdiction set forth
against its name in SCHEDULE 1.
1.2 The Shares represent the whole of the issued share capital of the
Company. Except for the Shares, the Company has not issued, and no
obligation (certain or contingent) exists for it to issue to anyone at
any time, any shares, debentures, options, warrants, subscription
rights, founders certificates, profit sharing certificates or other
securities of any kind.
1.3 The Shares have been fully paid up and no obligation exists for anyone
to make further contributions to the equity capital (whether by
subscription for further shares, by payment of share premium or
otherwise) or to provide loan financing to the Company.
1.4 The Vendor has full legal and beneficial title to all of the Shares
free and clear of any pledges, liens, encumbrances and restrictions of
every kind or nature and with full right and capacity for the Vendor to
transfer and sell the same.
1.5 Except as set forth in SCHEDULE 1, the Company has full legal and
(where such concept is relevant) beneficial title to the entire issued
share capital of each of the Subsidiaries, free and clear of any
pledges, liens, encumbrances and restrictions of every kind or nature.
Paragraphs 1.2, 1.3 and 1.4 apply mutatis mutandis to the shares in
such capital. Other than the Subsidiaries, the Company has no direct or
indirect subsidiary or any interest in any other company, partnership
or enterprise. Except for the branch office of the Company at
Xxxxxxxxxxxxxx 0, 00000 Xxxxxxxx, Xxxxxxx neither the Company nor any
of the Subsidiaries has any branch offices outside its country of
incorporation.
1.6 After 31 December 1995 the Company has not declared or paid any
dividends and has not made any other distributions to shareholders or
third parties, except as referred to in this Agreement.
2. FINANCIAL STATEMENTS
2.1 EXHIBIT 2.1 contains copies of the audited consolidated financial
statements of the Company and the Subsidiaries for the financial years
ended on 31 December 1994 and 31 December 1995 (the "AUDITED ACCOUNTS")
and the management accounts of the Company and the Subsidiaries for the
period between 1 January 1996 and 4 October 1996 (the "MANAGEMENT
ACCOUNTS", together with the Audited Accounts referred to as the
"ACCOUNTS"), in each case comprising a consolidated balance sheet of
the Company, balance sheets of each of the Company and the
Subsidiaries, a consolidated profit and loss statement of the Company,
and profit and loss statements of each of the Company and the
Subsidiaries, together with notes and ancillary
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documentation. The Accounts:
(a) have been prepared in accordance with applicable statutory
requirements and with applicable accounting principles and
practices generally accepted in The Netherlands, or (in the case
of the balance sheets and profit and loss statements of the
Subsidiaries) in the country in which the relevant Subsidiary has
been incorporated, and, save in respect of the Management
Accounts, have been prepared on a basis consistent with previous
years; and
(b) are true, complete and accurate in all material respects and
fairly represent:
(i) each of the items separately specified in the balance sheets
and profit and loss statements therein comprised;
(ii) the consolidated financial position of the Company and each
of the Subsidiaries as at 31 December 1994, 31 December 1995
and 4 October 1996, respectively, and the financial position
of the Company and of each of the Subsidiaries as at such
dates, respectively; and
(iii) the results of operations of the Company and the
Subsidiaries on a consolidated basis and of the Company and
of each of the Subsidiaries respectively during the
financial periods to which they relate;
(c) reserve or provide in full for all material commitments and
liabilities of the Company and the Subsidiaries, whether actual or
contingent, due or to become due, whether or not known at the time
the financial information was prepared, or at 31 December 1994, 31
December 1995, or 4 October 1996, respectively.
2.2 Except as disclosed in the Accounts there are no:
(a) mortgages, charges, liens or other encumbrances on the assets of
the Company or the Subsidiaries;
(f) guarantees, securities or other liabilities of the Company or the
Subsidiaries (certain or contingent) for any present or future
debt of any member of the Vendor's group or any third party.
3. TAX MATTERS
3.1 All taxes, duties, levies and social security charges, whether direct
or indirect, for which the Company or the Subsidiaries at 31 December
1995 or at any time thereafter may have become or may hereafter become
liable to be assessed in respect of any period ending on or before 4
October 1996 have either been paid in full or adequate provision
therefor has been made in the Management Accounts. With respect to all
such taxes assessed and paid prior to the date hereof, no further
payments or penalties or interest charges are or will become due with
respect thereto,
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save to the extent provided for in the Accounts. The Company and the
Subsidiaries are not and will not on the basis of any events having
occurred during the period up to and including the date hereof be
liable to repay any investment premiums or subsidies granted to it or
enjoyed by them prior to the date hereof.
3.2 All amounts properly due for payment to the relevant authorities in
respect of value added tax on goods sold or services rendered prior to
the date hereof, wage tax to be withheld prior to the date hereof and
social security contributions (both the employers' and the employees'
part) due in respect of employees of the Company or the Subsidiaries
have been duly withheld and paid.
3.3 There are no agreements with or with respect to the Company or the
Subsidiaries for the extension of time for the assessment or payment of
any tax, whether direct or indirect.
3.4 All documents required to be filed on or before the date of the date
hereof on behalf of or relating to the Company or the Subsidiaries in
respect of all taxes have been timely filed and all such documents (and
all other information supplied to the fiscal authorities for any
purpose) have been accurate and complete and filed on a proper basis.
3.5 Neither the Company nor any of the Subsidiaries is involved or to the
best of the knowledge of the Vendor is likely to be involved in any
dispute with the tax authorities or others concerning any matter likely
to affect any liability of the Company or the Subsidiaries to taxation.
3.6 From 1985 up to Completion the Vendor formed a fiscal unity with the
Company and certain other companies for the purposes of corporate
income tax. During the same period the Vendor filed all necessary
consolidated returns, except in so far as extension has been granted in
the ordinary course and paid all taxes on behalf of and otherwise acted
in such a way as representative of the fiscal unity as to ensure that
insofar as relevant the warranties contained in paragraphs 3.1 through
3.5 above are also satisfied in so far as that fiscal unity concerned
the Company, and the Company shall not be liable for any taxes due with
respect to the activities or results of any other person, firm or
entity.
3.7 There are no "tainted transactions" involving the Company (as referred
to in the sixteenth standard condition to the fiscal unity provisions)
that have occurred within the financial year 1996 and the preceding six
financial years.
3.8 To the best of the knowledge, information and belief of the Vendor, the
execution of this Agreement will not give rise to any material adverse
tax consequences for the Company or the Subsidiaries.
4. INSURANCE
The Company and the Subsidiaries have taken out insurance in respect of all
risks normally insured against by persons carrying on the same type of business
as that carried on by the Company (the "INSURANCE POLICIES") and the
Subsidiaries and the Company and the Subsidiaries is and has for at least five
(5) years prior to the date hereof been adequately covered against accident,
third party liability and
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other risks normally insured against by persons carrying on the same type of
business as carried on by the Company and the Subsidiaries and nothing has been
done or omitted which would make any insurance policy relating to the Company or
the Subsidiaries void or voidable. Except as set forth in EXHIBIT 4, there are
no claims outstanding under any such insurance policy. The Company and the
Subsidiaries have not failed to give any notice or to present any claim under
any such policy in due and timely fashion.
5. PREMISES
5.1 EXHIBIT 5.1 contains a list of all land, buildings and other real
property owned, used or occupied by the Company and the Subsidiaries
(the "PREMISES"), together with a description of the tenure thereof.
The occupation and use of each of the Premises by the Company and the
Subsidiaries is in all material respects in accordance with all
applicable laws, permits and planning regulations and in the case of
property leased or rented by the Company or the Subsidiaries complies
in all material respects with the agreements entered into with the
owners of the Premises with respect to such occupation and use. All
permits, licenses, consents and approvals requisite for the occupation
and use of the Premises have been obtained and are valid and
subsisting.
5.2 The Company and the Subsidiaries have (where applicable) good and
marketable title to each of the Premises. No person other than the
Company and the Subsidiaries possesses, occupies or uses the Premises,
or has a right to possess, occupy or use them, otherwise than pursuant
to a valid lease or sublease agreement entered into with the Company or
the relevant Subsidiary on an arm's length basis and on customary
terms. Exhibit 5.2 sets forth details of all such lease and sub-lease
arrangements.
5.3 There are no circumstances to the Vendor's knowledge which would
entitle or require a lessor or superior lessor of the Premises or any
other person to exercise any power of entry upon or of taking
possession of the Premises or which would otherwise restrict or
terminate the continued possession or occupation of the Premises.
5.4 All permissions, consents and approvals have been obtained and are
valid and subsisting for all developments, alterations or additions to
or other works on or in relation to the Premises and all conditions or
restrictions imposed in or by any such permissions, consents or
approvals have been complied with and nothing further remains to be
done thereunder.
5.5 There is no material physical defect in any part of the Premises or any
structure thereon and all structures thereon are in good and
substantial repair and condition and fit for the purpose for which they
are currently used.
5.6 The Premises are not subject to any mortgage, option, restriction,
easement (which affects the operation of the business or materially
detracts from the value of the Company), third party interest or other
encumbrance or security interest of any kind and no person claims or
is, to the best of the knowledge, information and belief of the Vendor,
entitled to claim any of the aforesaid.
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5.7 Save in relation to the Premises, there is no liability on the part of
the Company or the Subsidiaries relating to land or any interest in
land.
5.8 In the case of any of the Premises which are held by the Company or the
Subsidiaries under a lease or rental agreement:
(a) no person has a right to terminate that lease or rental agreement
before it is due to expire (other than as a result of breach of
its terms by the Company or the Subsidiaries);
(b) nothing (other than the need to obtain the consent of the relevant
authority in relation to planning) can restrict or terminate the
possession, occupation or use of, or prevent or restrict the
development of the Premises by, the Company or the Subsidiaries.
6. CONTRACTS
6.1 There are no long term (i.e. with a duration in excess of one (1) year)
or unusual or onerous contracts, or contracts not concluded on an arm's
length basis binding upon the Company or the Subsidiaries.
6.2 None of the Company and the Subsidiaries is in material default under
any contract to which it is a party and this Agreement will not of
itself result in such default or change any terms of any such contract
or permit the termination or cancellation thereof. For the avoidance of
doubt, the Company shall not be considered in material default if it is
under the obligation to conduct repairs in the ordinary course of its
business, pursuant to customary warranty provisions contained in
agreements with its customers.
6.3 There is not in force any agreement restricting the freedom of the
Company and the Subsidiaries to carry on their business in the manner
presently conducted.
6.4 Except as set forth in EXHIBIT 6.4, no written agreements or
arrangements, and, to the best knowledge, information and belief of the
Vendor, no oral agreements or arrangements, exist between the Company
or one of the Subsidiaries on the one hand and a member of the Vendor's
group on the other hand.
7. ABSENCE OF ADVERSE CHANGES
After 31 December 1995:
(a) there has not been any damage, destruction or loss (whether or not
covered by insurance) materially adversely affecting the business
or assets of the Company or the Subsidiaries;
(b) the business of the Company and the Subsidiaries has been carried
on in the ordinary course and so as to maintain the same as a
going concern;
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(c) the Company and the Subsidiaries have not disposed of any assets
or incurred any liabilities (including contingent liabilities)
other than in the ordinary course of their business, and they have
not encumbered or created any security interest in any of their
respective assets; and
(d) the business, profitability or prospects of the Company and the
Subsidiaries have, to the best of the knowledge, information and
belief of the Vendor not been adversely affected by the loss of
any important customer or source of supply.
8. LITIGATION
Neither the Company, nor the Subsidiaries, nor any person for whose
acts or defaults the Company or the Subsidiaries may be liable is, to
the best of the knowledge, information and belief of the Vendor
involved in any civil, criminal or arbitral proceedings, no such
proceedings are pending or threatened against the Company, any of the
Subsidiaries or any such person and to the best of the knowledge,
information and belief of the Vendor there are no facts likely to give
rise to any such proceedings against the Company, any of the
Subsidiaries or any such person.
9. EMPLOYEES
9.1 The basis of remuneration or other terms of employment payable to the
directors, employees and agents (if any) of the Company and the
Subsidiaries is the same as that in force at 31 December 1995 and none
of the Company and the Subsidiaries is under any contractual or other
obligation to make any increase in the rates of remuneration of or to
make any bonus or incentive or other similar payments to any of its
directors, employees or agents (if any) at any future date, except to
the extent that (i) any increase in remuneration resulting from the
promotion of any individual employee, where such promotion is in the
ordinary course and consistent with past policies, or (ii) any
collective labour agreement binding on the Company or any of the
Subsidiaries requires an increase in base salary by no more than the
average rate of wage increases in the relevant industry for the year
concerned.
9.2 The employment agreements with or terms of employment applicable to any
of the employees of the Company and the Subsidiaries do not contain any
provision which is unusual for a relationship of the kind concerned or
provide for a notice period on termination in excess of the statutory
minimum or for other arrangements applicable as at termination
exceeding statutory requirements.
9.3 Except as described in EXHIBIT 9.3, there are no pension, stock option,
share saving or profit sharing schemes, whether legally enforceable or
not, relating to all or part of the employees or directors of the
Company and the Subsidiaries in operation, proposed or promised.
9.4 All pension contributions made by the Company and the Subsidiaries for
the benefit of any director or employee of the Company or the
Subsidiaries which have fallen due have been paid
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and have been made in accordance with the applicable laws and
regulations to a duly authorised insurance company or private pension
fund. The Company and the Subsidiaries have complied with any statutory
obligation to participate in any state or branch of industry pension
fund in respect of all employees subject to such obligation, save for
such exceptions as statute allows. Each of the pension schemes and
other comparable benefit schemes operated by the Company or the
Subsidiaries (the "PENSION SCHEMES") have been designed to comply with
and have been operated in accordance with all applicable laws,
including but only in relation to The Netherlands the provisions of
Article 119 of the E.C. Treaty, and with any decision of the European
Court of Justice or any Court relating to the application of this
Article 119 on pension schemes and regulations and articles of
association applicable to the Pension Schemes.
Each of the Pension Schemes which provides benefits on a defined
benefits basis is sufficiently and effectively funded on an ongoing
basis using the actuarial assumptions contained in the last actuarial
valuation of each such scheme, respectively, to secure all benefits
currently, prospectively and contingently payable under each such
scheme, respectively, at least to the extent to which they have accrued
at the date hereof. To the best of the knowledge, information and
belief of the Vendor, there are no factors which have caused or
contributed to any substantial deterioration in the level of funding of
any such scheme since the date of such valuation.
All employees and former employees of the Company and the Subsidiaries
who are (or were) eligible or entitled to a pension have participated
in the Pension Schemes.
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10. ENVIRONMENTAL MATTERS
10.1 On Completion all environmental permits necessary for the Company and
the Subsidiaries to conduct the Business as conducted up to Completion
have been obtained, are in full force and effect, and will apply for
the benefit of the Purchaser as from Completion, provided that the
Purchaser is aware that, in relation to the Company, a
"Revisievergunning" has to be applied for by the Purchaser. No works or
investments are or will be necessary to obtain the "Revisievergunning"
and to the best of the Vendor's knowledge there are no facts or
circumstances indicating that any other environmental permit would or
might be revoked, suspended, cancelled, varied or not renewed and:
(a) all appropriate or necessary action in connection with the
renewal or extension of any environmental permit has been
taken;
(b) neither the execution nor the performance of this Agreement
will of itself cause any environmental permit to be
withdrawn or modified; and
(c) none of the conditions to which any environmental permit is
subject is personal to the Vendor.
10.2 Each of the Company and the Subsidiaries has complied in all respects
with all environmental laws, regulations, and orders applicable to it.
10.3 Except as disclosed in EXHIBIT 10.3, to the best of the knowledge,
information and belief of the Vendor, neither the Company nor the
Subsidiaries has or will have under existing laws any liability
resulting from the release or discharge into the environment of any
dangerous, radioactive, toxic or hazardous substance either (a) by the
Company or one of the Subsidiaries, or (b) onto any land, building or
other property now or in the past owned, used or occupied by the
Company or one of the Subsidiaries.
10.4 Except as disclosed in EXHIBIT 10.4, there have not been any
complaints, whether official or not, against the Company or the
Subsidiaries about noise, smells, pollution or other inconveniences
caused by the Company or the Subsidiaries, nor is it to the best of the
knowledge, information and belief of the Vendor likely that such
complaints will be made in respect of any period prior to Completion.
11. COMPLIANCE WITH LAWS
11.1 Each of the Company and the Subsidiaries has complied in all material
respects with all laws, regulations, and orders applicable to it.
11.2 All permits, licenses and approvals required by the Company and the
Subsidiaries for the conduct of their respective businesses have been
obtained and are valid and subsisting. The Company and the Subsidiaries
have complied with all material conditions imposed by such permits,
licences and approvals and, to the best of the Vendor's knowledge,
information and
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belief, no circumstances exist which are likely to result in the
revocation or amendment of any such permit, licence or approval. The
execution and performance of this Agreement will not of itself
adversely affect the continued validity of any of such permits,
licenses and approvals.
12. INDUSTRIAL PROPERTY RIGHTS
12.1 All patents, service marks, trademarks, tradenames, copyrights,
registered designs and similar industrial property rights (whether
registered or not) (the "INDUSTRIAL PROPERTY RIGHTS") used or proposed
to be used by the Company or the Subsidiaries in connection with their
business are either (a) the property of the Company or one of the
Subsidiaries, or (b) the subject of a valid license permitting the use
thereof by the Company and the Subsidiaries.
12.2 Industrial Property Rights owned by the Company or one of the
Subsidiaries are registered in the name of the Company or one of the
Subsidiaries (where registration is possible), are valid and
subsisting, have been properly maintained and (where necessary)
renewed, are (to the best of the knowledge, information and belief of
the Vendor) not being infringed, are not subject to any licence or
authority in favour of another and the execution and performance of
this Agreement will not of itself adversely affect the continued
validity of any of such Industrial Property Rights.
12.3 Where Industrial Property Rights have been licensed to the Company and
the Subsidiaries, the Company and the Subsidiaries have, to the best
knowledge, information and belief of the Vendor, at all times complied
with all material conditions of the applicable license agreements.
12.4 To the best of the knowledge, information and belief of the Vendor, the
Company and the Subsidiaries do not and have not at any time prior to
the date hereof in any way infringed the industrial property rights of
any third party. The Company and the Subsidiaries are not using any
industrial property right owned by or licensed to any member of the
Vendor's group.
13. FULL DISCLOSURE
13.1 All material information and facts as to the condition (financial or
otherwise), assets, liabilities, earnings, business and affairs of the
Company and the Subsidiaries material for disclosure to an intending
purchaser of the Shares have been disclosed to the Purchaser.
13.2 The representations and warranties made by the Vendor herein and any
disclosures made in qualification thereof do not contain any untrue or
inaccurate statement of material fact nor do they omit to state any
material fact necessary to keep these representations and warranties or
disclosures from being misleading or inaccurate.
13.3 All written information which has been given by the Vendor or any of
its directors, auditors or advisers to the Purchaser, or the
Purchaser's legal or financial advisers in the course of negotiations
leading to this Agreement was when given and is true, complete and
accurate in all material respects.
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13.4 The facts set out in this Agreement, including the Recitals, Schedules
and Exhibits, are true and accurate in all material respects.
13.5 No agreements (whether oral or written) or arrangements exist between
any of the directors and employees of the Company and the Subsidiaries
on the one hand and any member of the Vendor's group on the other hand,
including without limitation agreements or arrangements regarding
future profit sharing or bonus payments and agreements or arrangements
whereby the Vendor could seek recourse against any such director or
employee with respect to any liability incurred under this Agreement or
in connection herewith.
14. VALIDITY OF SALE
14.1 Neither the execution of this Agreement or any agreement in connection
herewith by the Vendor nor the consummation by the Vendor of the
transactions contemplated hereby or thereby will constitute a violation
of, or be in conflict with, or constitute or create a default under any
agreement or arrangement binding upon the Company, one of the
Subsidiaries or the Vendor, or result in the creation of any mortgage,
lien, pledge, charge, security interest or any encumbrance of any
nature whatsoever.
14.2 No statutory or regulatory rule or order of a Court or a governmental
body and no agreement between the Vendor and any such governmental body
is in effect which restrains or prohibits the sale by the Vendor to the
Purchaser of the Shares as reflected in this Agreement nor is there to
the best of the Vendor's knowledge, information and belief pending,
threatened or any basis for any action, suit, proceeding or
investigation by any person, entity or governmental body which
questions or might jeopardise the validity of this Agreement or
challenges any of the transactions contemplated hereby.
14.3 No consent, approval, or authorisation of or registration, designation,
declaration or filing with any governmental authority on the part of
the Vendor, the Company or the Subsidiaries is required in connection
with the sale or transfer of the Shares pursuant to this Agreement or
the consummation of any other transaction contemplated hereby except as
set out in this Agreement.
15. NO BROKERS' FEES
No finder's fee or brokerage commission is payable to any person by the
Purchaser, by the Company or by any of the Subsidiaries as a result of any
action by the Vendor or any action known to the Vendor by any other person, in
connection with the transactions contemplated by this Agreement.
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SCHEDULE 4: REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
1. No statutory or regulatory rule or order of a court or governmental
body and no agreement between the Purchaser and any such governmental
body is in effect which restrains or prohibits the purchase by the
Purchaser of the Shares as reflected in this Agreement nor is there to
the best of the Purchaser's knowledge, information and belief pending
threatened or any basis for any action, suit, proceeding or
investigation by any person, entity or governmental body which
questions or might jeopardize the validity of this Agreement or
challenges any of the transactions contemplated hereby.
2. No consent, approval, or authorization of or registration designated,
declaration or filing with any governmental authority on the part of
the Purchaser is required in connection with the sale or transfer of
the Shares pursuant to this Agreement or the consummation of any other
transaction contemplated hereby except as set out in this Agreement.
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SCHEDULE 5: KEY OFFICERS
- Jan Xxxxxx Xxxxxxxxx
- Xxxxxx xx Xxxxx
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SCHEDULE 6: VENDOR'S CERTIFICATE
[DELIBERATELY LEFT BLANK]
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SCHEDULE 7: FORM OF DEED OF TRANSFER OF SHARES
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SCHEDULE 8: FORM OF TRADE NAME AND LOGO AGREEMENT
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SCHEDULE 9: FORM OF NON-COMPETE LETTER
AAS Holdings, LLC
AAS Holdings, Inc.
Sterling Town Center
00000 Xxxx Xxxx
Xxxxx 000, Xxxxxxxx Xxxxxxx
Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
30 October 1996
Dear Sirs,
We refer to the Sale and Purchase Agreement dated 30 October 1996 between Brink
Holding B.V., Brink B.V. and yourselves (the "AGREEMENT").
In connection with the Agreement, we agree as ultimate beneficiaries of Brink
Holding B.V. and having either directly or indirectly been involved in the
towbar production and trading activities of the Company and certain of its
Subsidiaries (as defined in the Agreement), to be bound by certain restrictive
covenants.
Each of the undersigned hereby covenants and undertakes with each of you that
they will not:
(a) at any time after Completion (as defined in the Agreement) disclose or
use for any purpose any information concerning the Company or the
Subsidiaries, except:
(i) to the extent required by law or any competent authority, after
prior consultation with yourselves;
(ii) to our professional advisers under circumstances of
confidentiality and only to the extent necessary for any lawful
purpose of either one of us;
(iii) to the extent that such information is at the date hereof or
hereafter becomes public knowledge otherwise than through
improper disclosure by any person; or
(b) at any time prior to the expiry of three years from the date of
Completion,either alone or jointly with others, directly or indirectly,
do any of the following without your prior written consent:
(i) directly or indirectly incorporate, establish or engage in any
business competing with
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any of the businesses now carried on by the Company and the
Subsidiaries ("AAS COMPETING BUSINESS");
(ii) acquire or hold a controlling interest in any company or business
which is itself or through any company or business directly or
indirectly controlled by it, engaged in any AAS Competing
Business, unless such AAS Competing Business accounts for not
more than 10% of the gross turnover of such company or business,
in which case we shall use our reasonable efforts to
ensure that such AAS Competing Business is offered for sale to
the Company at its fair market value;
(iii) participate in a joint venture or other co-operative arrangement
aimed at generating AAS Competing Business; and
(iv) employ or solicit the employment of any person earning an annual
salary of more than NLG 75,000 who is on the date hereof or has
during the month prior to the date hereof been an employee of the
Company or one of the Subsidiaries.
Yours faithfully,
------------------ ------------------ ------------------
Xxxxxx Xxxxx Xxx Xxxxx Xxx Xxxxx
For acceptance for and on behalf of
AAS HOLDINGS, LLC AND AAS HOLDINGS, INC.
------------------
Xxxxx Xxxxxx
Chief Financial Officer
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