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Exhibit 10(c)
OPTION AGREEMENT
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OPTION AGREEMENT made as of this 3rd day of December, 1998, by and
between ALLIBERT EQUIPEMENT U.S., INC., a Delaware corporation ("AE U.S."), and
XXXXX INDUSTRIES, INC., an Ohio corporation ("Xxxxx"), and joined in by XXXXXX
ALLIBERT S.A., a French societe anonyme ("Xxxxxx Allibert").
RECITALS
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X. Xxxxxx Allibert, which is the ultimate parent of AE U.S., and Xxxxx
have signed, on even date herewith, a certain Protocole d'Accord (the
"Protocole") which provides, inter alia, for the indirect sale of the
50% percentage interest in ALLIBERT-CONTICO, L.L.C., a Missouri limited
liability company ("Allibert Contico"), owned by AE U.S. (the "Allibert
Interest"), to Xxxxx or to a direct or indirect subsidiary of Xxxxx
(for purposes hereof, also hereinafter referred to as "Xxxxx").
B. Under the Protocole, the parties may terminate their agreement, on or
prior to the closing of the transactions contemplated, for various
reasons as therein set forth, and Xxxxxx Allibert has the unilateral
right, in the event the costs of environmental remediation as defined
in the Protocole are greater than 50,000,000 French francs, to
terminate the Protocole.
X. Xxxxx has also entered into the Contico Sale Agreement with CONTICO
INTERNATIONAL, INC. ("Contico") which provides for the direct sale of
the 50% percentage interest in Allibert- Contico owned by Contico (the
"Contico Interest") to Xxxxx.
D. Because it is possible that in the event of termination of the
Protocole on or prior to closing, either Xxxxx will nonetheless wish to
acquire, or AE U.S. will nonetheless wish to sell, the Allibert
Interest so that notwithstanding the termination of the Protocole,
Xxxxx has the ability to acquire 100% of the percentage interest in
Allibert-Contico and Xxxxxx Allibert can thereby terminate its
involvement in such company, the Protocole provides that AE U.S. shall
offer to Xxxxx a call option, and Xxxxx shall offer to AE U.S. a put
option with respect to the Allibert Interest.
E. The parties hereto therefore wish to set forth the terms and conditions
pertaining to the put and call options to be conferred further to the
Protocole.
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AGREEMENT
1. DEFINITIONS. The following terms shall have the meanings as herein set
forth:
"Business Day" shall mean the time between the hours of 9:00 a.m. and
5:00 p.m. on any day other than Saturday, Sunday or a day on which
banks in either Akron, Ohio or St. Louis, Missouri are not open for the
transaction of business.
"Exercise Notice" shall have the meaning set forth in Section 5 hereof.
"Option Exercise Period" shall mean the five (5) Business Day period
commencing upon the closing date set under the Protocole, as the same
may be extended, delayed or adjourned by agreement of the parties
thereto.
"Option Price" shall be equal to the sum of Twenty-Two Million Five
Hundred Thousand Dollars ($22,500,000.00), adjusted in the same manner
as the Contico Interest Purchase Price in accordance with the
provisions of Article 1 and Section 6.10 of the Contico Sale Agreement,
as the same has been amended, provided, however, that in no event shall
the Option Price be less than Twenty-One Million Five Hundred Thousand
Dollars ($21,500,000.00), reduced by any adjustment made pursuant to
Section 6.10 of the Contico Sale Agreement, as such Section has been
amended.
"Option Settlement Date" shall mean the day occurring five (5) Business
Days after the Option Exercise Date, or such later date as the parties
may together agree.
"Option Settlement Place" shall mean the offices of Pavia & Harcourt,
600 Madison Avenue, New York, New York, USA.
2. INCORPORATION BY REFERENCE. To the extent required by this Option
Agreement, the terms of the Contico Sale Agreement, as amended, annexed
hereto as Exhibit A, are hereby incorporated by reference as though
fully set forth herein. In the event of an inconsistency between the
terms of the Contico Sale Agreement and any particular disposition of
this Option Agreement, the terms and conditions hereof shall be
controlling.
3. GRANT OF PUT OPTION. Xxxxx hereby grants to AE U.S. an option (the
"Put Option"), exercisable as hereinafter provided, to sell to Xxxxx
the Allibert Interest at the Option Price.
4. GRANT OF CALL OPTION. AE U.S. hereby grants to Xxxxx an option (the
"Call Option"), exercisable as hereinafter provided, to purchase from
AE U.S. the Allibert Interest at the Option Price.
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5. EXERCISE OF PUT AND CALL OPTION. The Put Option or the Call Option,
as the case may be, may be exercised at any time during the Option
Exercise Period by the party holding such option, in the event the
closing under the Protocole does not occur, by delivery of its Exercise
Notice to the other party with a copy to Allibert-Contico, sent in the
manner provided in Section 12, stating that the notifying party wishes
to exercise its option and making reference to this Option Agreement.
The Exercise Notice, if sent by AE U.S., shall also designate the
account or accounts to which the sums payable to AE U.S. for the
purchase of the Allibert Interest shall be paid. If the Exercise Notice
is sent by Xxxxx, XX U.S. shall send a responding notice, within two
(2) Business Days after receipt of the Exercise Notice, in which shall
be designated the account or accounts to which the sums payable to AE
U.S. for the purchase of the Allibert Interest shall be paid. The
sending of the Exercise Notice shall be an irrevocable obligation on
the part of the notifying party to complete the sale or purchase, as
the case may be, of the Allibert Interest in accordance with the terms
hereof. Receipt of the Exercise Notice shall obligate the recipient to
perform the transaction contemplated by the Option in accordance with
the terms hereof.
6. CLOSING OF THE OPTION TRANSACTION. On the Option Settlement Date,
and at the Option Settlement Place, AE U.S. shall, in exchange for the
Option Price, sell, convey, transfer and assign to Xxxxx, and Xxxxx
shall acquire from AE U.S., the Allibert Interest, free and clear of
all liens, security interests, claims, encumbrances and transfer
restrictions, but subject to the terms of the Operating Agreement of
Allibert-Contico, as amended (any such amendment since the date of the
Contico Sale Agreement to be of the kind and in the manner set forth in
Section 6.12 of the Contico Sale Agreement) and as the same shall be in
effect on such date. The Option Price shall be determined as provided
in Article 1 of the Contico Sale Agreement, including the procedure for
resolution of disagreement, shall be further adjusted as provided in
Section 6.10 of the Contico Sale Agreement, as such Section has been
amended, if applicable, and shall be paid in such manner, in such
installments and at such times as are set forth in Article 1 of the
Contico Sale Agreement, including payments into escrow. The payment
into escrow shall be made further to an Escrow Agreement in the form
annexed hereto as Exhibit B, to be executed by AE U.S. and Xxxxx at the
closing of the transaction contemplated by this Option Agreement. The
Escrow Agreement provides that the fees and expenses of the Escrow
Agent, other than investment commissions and fees properly chargeable
to the escrow account, shall be for the account of Xxxxx. Also at such
closing, AE U.S., Xxxxxx Allibert and Xxxxx will enter into the
Non-Competition Agreement referred to therein, annexed hereto as
Exhibit C.
7. BINDING AGREEMENT OF AE U.S.. AE U.S. has the right, power and
authority to enter into this Agreement and to consummate the
transaction contemplated hereby and otherwise to perform its
obligations hereunder. The execution, delivery and performance by AE
U.S. of this Agreement and the consummation of the transaction
contemplated hereby have been duly authorized by all necessary
corporate action on the part of AE U.S. This Agreement constitutes the
valid and binding agreement of AE U.S., enforceable against AE U.S. in
accordance with its terms. AE U.S. has the power to perform all of its
obligations under this Agreement, the execution,
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delivery and/or performance of which will not constitute a violation
of, be in conflict with or constitute a default under any contract,
agreement, commitment, undertaking or understanding to which AE U.S. is
a party or to which it or any of its properties is subject; any
judgment, decree or order of any governmental authority or court to
which AE U.S. or its properties is subject or bound; or any applicable
law; or any governing or applicable agreements, instruments or other
documents.
8. BINDING AGREEMENT OF XXXXX. Xxxxx has the right, power and authority to
enter into this Agreement and to consummate the transaction
contemplated hereby and otherwise to perform its obligations hereunder.
The execution, delivery and performance by Xxxxx of this Agreement and
the consummation of the transaction contemplated hereby have been duly
authorized by all necessary corporate action on the part of Xxxxx. This
Agreement constitutes the valid and binding agreement of Xxxxx,
enforceable against Xxxxx in accordance with its terms. Xxxxx has the
power to perform all of its obligations under this Agreement, the
execution, delivery and/or performance of which will not constitute a
violation of, be in conflict with or constitute a default under any
contract, agreement, commitment, undertaking or understanding to which
Xxxxx is a party or to which it or any of its properties is subject;
any judgment, decree or order of any governmental authority or court to
which Xxxxx or its properties is subject or bound; or any applicable
law; or any governing or applicable agreements, instruments or other
documents. With respect to the representations and warranties of Xxxxx
contained in this Section 8, the term [Agreement] includes,
specifically, the guarantee obligations of Xxxxx further to the
contingent guarantee extended in favor of AE U.S. further to Section
10.
9. GUARANTEE OF XXXXXX ALLIBERT. Xxxxxx Allibert hereby guarantees to
Xxxxx the timely and complete performance by AE U.S. of each and all of
AE U.S.' obligations under this Agreement, and the making of all
payments herein required of AE U.S., all as in accordance with the
terms hereof as the same may be amended. No consent of Xxxxxx Allibert
will be required with respect to any amendment of this Agreement as
permitted hereunder, and this guarantee will apply to the obligations
of AE U.S. hereunder as so amended. The liability of Xxxxxx Allibert
with respect to its guarantee obligations under this Agreement is
primary, and Xxxxx shall not be required to make any demand on AE U.S.
for performance of any obligation under this Agreement, nor to exhaust
any legal, contractual or equitable remedies against AE U.S. prior to
proceeding against Xxxxxx Allibert pursuant hereto. Xxxxxx Allibert
represents and warrants to Xxxxx that the execution, delivery and
performance by Xxxxxx Allibert of its guarantee obligations under this
Agreement have been duly authorized by all necessary corporate action
on its part; that its guarantee obligations hereunder constitute the
valid and binding guarantee of Xxxxxx Allibert, enforceable against
Xxxxxx Allibert in accordance with its terms; that Xxxxx Industries,
Inc. has the power to perform its guarantee obligations under
this Agreement, the execution, delivery and/or performance of which
will not constitute a violation of, be in conflict with or constitute a
default under (i) any contract, agreement, commitment, undertaking or
understanding to which Xxxxxx Allibert is a party or to which it or any
of its properties is subject; (ii) any judgment, decree or order of any
governmental authority
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or court to which Xxxxxx Allibert or its properties is subject or
bound; or (iii) any applicable law; or any governing or applicable
agreements, instruments or other documents.
10. CONTINGENT GUARANTEE OF XXXXX INDUSTRIES, INC.. In the event of an
assignment by Xxxxx of its obligations hereunder in accordance with the
terms of Section 14, Xxxxx hereby guarantees to AE U.S. the timely and
complete performance by its assignee of each and all of the obligations
under this Agreement, including those other agreements to be executed
by Xxxxx pursuant hereto and assumed by its assignee, namely the Escrow
Agreement, the Warranty Agreement and the Non-Competition Agreement,
all of which shall be assumed by such assignee, and the making of all
payments herein required of said assignee further to the assignment,
all as in accordance with the terms hereof as the same may be amended.
No consent of Xxxxx will be required with respect to any amendment of
this Agreement as permitted hereunder, and this guarantee will apply to
the obligations of Xxxxx' assignee hereunder as so amended. The
liability of Xxxxx with respect to its guarantee obligations under this
Agreement is primary, and AE U.S. shall not be required to make any
demand on Xxxxx' assignee for performance of any obligation under this
Agreement, nor to exhaust any legal, contractual or equitable remedies
against such assignee prior to proceeding against Xxxxx pursuant
hereto.
11. REPRESENTATIONS AND WARRANTIES. The consummation of the sale/purchase
of the Allibert Interest in accordance with this Agreement will be
subject to the representations and warranties provided for under the
Warranty Agreement executed simultaneously with the execution of this
Agreement. The Warranty Agreement is annexed hereto as Exhibit D.
12. NOTICES. Any notices or other communications required or permitted
hereunder to any party hereto shall be sufficiently given if (a)
delivered in person, (b) sent by certified or registered mail, postage
prepaid, (c) dispatched by reputable overnight delivery service, or (d)
transmitted by facsimile machine if an answerback is received and
notice is confirmed by any other manner provided herein, in each case
addressed as follows:
In the case of AE U.S.:
Allibert Equipement U.S., Inc.
c/x Xxxxxx Allibert S.A.
2 xxx xx x'Xxxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxx
Attn: Xxxxxx Xxxxxx
Facsimile: 011-33-1-41-20-47-04
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With a copy to:
Pavia & Harcourt
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attn: Xxxxxxx X. Xxxxxx
Facsimile: 1-212-980-3185
In the case of Xxxxxx Allibert:
Xxxxxx Allibert S.A.
0 xxx xx x'Xxxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxx
Attn: Xxxxxx Xxxxxx
Facsimile: 011-33-1-41-20-47-04
With a copy to:
Pavia & Harcourt
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attn: Xxxxxxx X. Xxxxxx
Facsimile: 1-212-980-3185
In the case of Xxxxx and/or its assignee:
Xxxxx Industries, Inc.
0000 Xxxxx Xxxx Xxxxxx
Xxxxx, Xxxx 00000
X.X.X.
Attn: Xxxxxxx X. Xxxxxxxx,
Vice President- Finance
Facsimile: 0-000-000-0000
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With a copy to:
Xxxxxx & XxXxxxxx, L.P.A.
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxx 00000
X.X.X.
Attn: Xxxxx X. X'Xxxx
Facsimile: 1-330-253-8601
or such substituted address as either party shall have given notice to
the other in writing in the manner set forth in this Section 11.
13. AMENDMENT. This Agreement may be amended or modified in whole or in
part only by an agreement in writing executed by the parties hereto and
making specific reference to this Agreement.
14. BINDING ON SUCCESSORS AND ASSIGNS. Neither party hereto may assign this
Agreement without the express written consent of the other, provided,
however, that Xxxxx may assign its rights and obligations hereunder and
under those other agreements to be executed by Xxxxx pursuant hereto,
namely the Escrow Agreement, the Warranty Agreement and the
Non-Competition Agreement, to a wholly-owned subsidiary (including an
indirect subsidiary) if such assignee executes a written assumption
agreement reasonably satisfactory to AE U.S., in which event the
contingent guarantee accorded in Section 10 hereof shall become
effective. Subject to the foregoing, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by and against the
parties hereto and their respective successors and assigns in
accordance with the terms hereof.
15. SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement or any application thereof shall be
invalid, illegal or unenforceable in any respect, the validity,
legality or enforceability of the remaining provisions of this
Agreement and any other application thereof shall not in any way be
affected or impaired thereby; provided, however, that to the extent
permitted by applicable law, any invalid, illegal or unenforceable
provision may be considered for the purpose of determining the intent
of the parties in connection with the other provisions of this
Agreement.
16. ENTIRE AGREEMENT; GOVERNING LAW. This Agreement represents the entire
understanding of the parties regarding the subject matter and
supersedes all prior negotiations and agreements between the parties
with regard thereto. This Agreement shall be governed by and construed
and interpreted in accordance with the laws of the State of Missouri,
without reference to conflicts of laws principles.
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17. DISPUTE RESOLUTION; EQUITABLE REMEDIES. Any and all disputes arising in
connection with the subject matter of this Agreement shall be
determined exclusively before the courts, state or federal, sitting in
the State of Missouri. The parties acknowledge that the prejudice
caused to either by the failure of the other to satisfy its obligations
hereunder is incapable of being measured in money damages, and each
consents to the remedy of specific performance of the terms hereof in
addition to any other remedies available to a party at law or in equity
for breach of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the day and year first
above written.
XXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President and Chief Executive Officer
ALLIBERT EQUIPEMENT U.S., INC.
By: /s/ Xxxxxx Xxxxxx
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Michel Cogent
XXXXXX ALLIBERT S.A.
(with respect to Section 9 only)
By: /s/ Xxxxxx Xxxxxx
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Michel Cogent
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LIST OF EXHIBITS
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Exhibit A - Contico Sale Agreement
Exhibit B - Form of Escrow Agreement
Exhibit C - Form of Non-Competition Agreement
Exhibit D - Warranty Agreement
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