THIS DOCUMENT IS A COPY OF THE SAME DOCUMENT FILED ON NOVEMBER 27, 1996
PURSUANT TO RULE A 201 TEMPORARY HARDSHIP EXEMPTION.
AGREEMENT FOR THE SALE AND PURCHASE OF THE ENTIRE ISSUED
AND OUTSTANDING SHARE CAPITAL OF DAF TRUCKS N.V.
by and between
PACCAR HOLDING B.V.
and
THE SHAREHOLDERS OF
DAF TRUCKS N.V.
and
DAF TRUCKS N.V.
and
PACCAR INC
AGREEMENT FOR THE SALE AND PURCHASE OF THE ENTIRE ISSUED
AND OUTSTANDING SHARE CAPITAL OF DAF TRUCKS N.V.
This agreement, hereinafter referred to as: the "AGREEMENT", is made this 15th
day of November 1996;
by and between
1. PACCAR Holding B.V.,
having its registered office at Eindhoven,
herein represented by Xx X.X. Xxxxx
hereinafter referred to as: "PACCAR";
and
2. The parties listed in SCHEDULE A hereto hereinafter collectively referred
to as: "SELLERS", and each individually referred to as: "SELLER";
and
3. DAF Trucks N.V.,
having its registered office at Eindhoven, the Netherlands, herein
represented by Xx X.X. xx Xxxx, hereinafter referred to as: the "COMPANY";
and
4. PACCAR Inc, having its registered office at Bellevue, Washington, the
United States, herein represented by Mr M.A. Xxxxxxxxx, hereinafter
referred to as: "PACCAR INC".
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WHEREAS:
(A) Sellers are the legal and beneficial owners of the entire issued and
outstanding share capital of the Company, a company with limited liability
incorporated under the laws of the Netherlands and whose issued and
outstanding share capital is divided into 284.237 ordinary shares A, with a
nominal value of NLG 1000,-- each and 90.000 ordinary shares B, with a
nominal value of NLG 1.000,-- each, which shares represent, inter alia, the
right to receive dividends over 1996 (hereinafter collectively referred to
as: the "SHARES").
(B) As of the date hereof, the Company is the direct or indirect legal and
beneficial owner of the entire issued and outstanding share capital of:
(a) DAF Trucks Vlaanderen N.V. (Belgium)
(b) Arboscan B.V. (the Netherlands)
(c) DAF Investment II B.V. (the Netherlands)
(d) Cabtec B.V. (the Netherlands)
(e) DAF Trucks CZ s.r.o. (Czech Republic)
(f) DAF Trucks Praha s.r.o. (Czech Republic)
(g) DAF Trucks France S.a.r.l. and its subsidiary Chalon Vehicules
Industrielles S.a.r.l. (France)
(h) DAF Trucks Deutschland GmbH (Germany)
(i) DAF Veicoli Industriali S.p.A. (Italy)
(j) DAF Trucks Polska Sp. 2.0.0 (Poland)
(k) DAF Trucks Schweiz A.G. (Switzerland)
(l) Leyland DAF Trucks Ltd. (United Kingdom)
As of the date hereof, the Company is the direct or indirect legal and
beneficial owner of more than half of the issued and outstanding share
capital of:
(m) DAF Vehiculos Industriales S.A. (75%) (Spain)
(n) Hungarotruck Kft (80%) (Hungary)
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the companies referred to under (a) through (n) above hereinafter
collectively referred to as: the "SUBSIDIARIES".
As of the date hereof, the Company has a direct or indirect interest in:
(o) DAF Financial Services Beheer B.V. (49%)
(the Netherlands)
(p) DAF Bus International B.V (19%) (the Netherlands)
(q) S.I.D.A.N. S.A. (35%) (France)
(r) Paris Est Service VI (20%) (France)
(s) SCI Sarron (1%) (France)
(t) Commercial Vehicle Contracts Ltd.(25%) (U.K.),
such interests referred to under (o) through (t) hereinafter collectively
referred to as: the "PARTICIPATIONS".
(C) Sellers wish to sell and, in reliance upon, INTER ALIA, the warranties in
this Agreement, PACCAR wishes to purchase the Shares on the terms and
conditions set out in this Agreement.
(D) PACCAR, Sellers, the Company and the Subsidiaries have (to the extent
applicable) fully complied with the provisions of the Works' Council Act
("WET OP DE ONDERNEMINGSRADEN"), SER Merger Code ("SER FUSIEGEDRAGSREGELS")
and similar applicable requirements under Belgian law and have completed
all procedures required thereunder.
4
IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1: SALE, PURCHASE, PURCHASE PRICE, PURCHASE PRICE ADJUSTMENT
1.1 Each Seller hereby sells the Shares held by such Seller as set out in
SCHEDULE A to PACCAR and PACCAR hereby purchases the Shares from Sellers.
1.2 The purchase price for the Shares shall be NLG 900,000,000 (in words: Nine
Hundred Million Dutch Guilders), (hereinafter: the "PURCHASE PRICE").
1.3 Each Seller hereby warrants that it is the sole legal and beneficial owner
of the Shares set out in SCHEDULE A behind its name and that it has full
power, right and authority to transfer such Shares to PACCAR, together with
all rights attaching to them, and that such Shares are free from any and
all liens, charges, claims, third party rights, restrictions and
encumbrances of any kind, including without limitations, usufruct and
pledges and that no depositary receipts have been issued in connection with
such Shares.
ARTICLE 2: CLOSING MATTERS
2.1 Completion of the sale, purchase and transfer of the Shares (hereinafter:
the "CLOSING") will take place at the Amsterdam offices of Loeff Xxxxxx
Xxxxxxx, on the date hereof.
2.2 The transfer of the Shares shall be carried out by means of a notarial
deed, in accordance with the form attached hereto as SCHEDULE B, to be
executed by G.W.Chr. Xxxxxx, or any other civil law notary of Loeff Xxxxxx
Xxxxxxx, the firm of the external legal advisors of PACCAR. Sellers hereby
acknowledge that they are aware of the
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provisions of Articles 9 and 10 of the "Guidelines concerning associations
between civil law notaries ("NOTARISSEN") and barristers/solicitors
("ADVOCATEN")" as established by the Board of the Royal Fraternity of Civil
Law Notaries ("KONINKLIJKE NOTARIELE BROEDERSCHAP"). The Sellers hereby
explicitly agree that Loeff Xxxxxx Xxxxxxx shall advise and act on behalf
of PACCAR with respect to this Agreement, any agreements resulting from
this Agreement and/or any disputes resulting therefrom. The costs of
executing the notarial deed will be born by PACCAR.
2.3 The Purchase Price, reduced by the Escrow Hold-back Fund, as defined in the
escrow agreement attached as SCHEDULE C, (the "Escrow Agreement") shall be
paid by PACCAR to the Sellers on the date hereof by telephonic transfer to
the bank account as indicated in SCHEDULE D to this Agreement.
Receipt of the Purchase Price reduced by the Escrow Hold-back Fund, as
defined in the Escrow Agreement (the "Escrow Hold-Back Fund") by the
Sellers in the above-mentioned bank account and the establishment of the
Escrow Hold-back Fund by PACCAR on the date hereof shall constitute full
and final discharge for payment of the Purchase Price.
ARTICLE 3: FURTHER DEALINGS IN CONNECTION WITH CLOSING
3.1 The following documents will be delivered at Closing:
(a) the shareholders' register of the Company in which the transfer
of Shares will have been registered;
(b) an Escrow Agreement executed by Sellers, the Escrow Agent and
PACCAR in the form of SCHEDULE C hereto;
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(c) an executed copy of an agreement between the Company and N.V.
Truck Financiering evidencing the purchase of the 25 percent
holding in DAF Vlaanderen;
(d) a copy of the shareholders' register of DAF Trucks Vlaanderen
N.V. (hereinafter: "DAF VLAANDEREN") evidencing a 100 percent
share holding of the Company in DAF Vlaanderen;
(e) evidence of the termination of shareholders agreement between the
Company and N.V. Truck Financiering, with respect to DAF
Vlaanderen, (hereinafter: the "VLAANDEREN SHAREHOLDERS
AGREEMENT");
(f) evidence of the resignation of each of the current members of the
Supervisory Board of the Company as per the date hereof;
(g) evidence of approval by the German anti-trust authorities of the
acquisition and evidence of a notification made with the Italian
anti-trust authorities regarding the acquisition.
3.2 Each party hereto will at the request of the other party execute all
documents and do all other acts and things as may reasonably be deemed
necessary to give full effect to this Agreement and to the transfer of the
Shares.
ARTICLE 4: WARRANTIES
4.1 Sellers jointly and severally represent and warrant to PACCAR on the date
hereof that each and every statement set out under SECTION 3 (Warranties)
of SCHEDULE E is true, complete, accurate and not misleading (the
Warranties hereinafter to be referred to, collectively as: the
"WARRANTIES").
7
4.2 Subject to the provisions of article 4.4 any investigation carried out by
PACCAR and any information provided by Sellers or the Company to PACCAR
shall not discharge Sellers in any way from their obligations with respect
to the Warranties. The provisions of this article are based on a deliberate
division of risk between PACCAR on the one side and Sellers on the other
side.
4.3 Sellers acknowledge that PACCAR is relying on the Warranties in connection
with the purchase of the Shares and that the accuracy of the Warranties in
all respects is essential for PACCAR's decision to enter into the
Agreement.
4.4 The Warranties are only restricted by matters correctly, fully and
specifically disclosed in this Agreement and/or ANNEX I to SCHEDULE E
and/or other schedules or annexes to this Agreement.
If the revisions of the environmental licenses (as referred to in the
letter of the Province of Noord-Brabant of June 13, 1995) or the revision
of the license under the Surface Water Pollution Act or the compliance
issues in relation to such act, described in the letter of Waterschap Xx
Xxxxxx of June 12, 1995, requires the Company to incur costs not provided
for in the Annual Accounts or the Financial Statements and - in case of the
aforementioned revisions - such revisions are necessary to continue the
present operations of the Company, such costs can be charged against the
Escrow Hold-back Fund in accordance with the Escrow Agreement.
The information contained in ANNEX I to SCHEDULE E with respect to Warranty
3(a) and Warranty 3(c) does not restrict Warranty 3(b) which shall remain
unrestricted and be construed in accordance with its terms.
8
4.5 In relation to the business policies to be pursued after Closing, PACCAR
Inc undertakes with the Company its intentions expressed in SCHEDULE F.
ARTICLE 5: BREACH OF WARRANTIES, NON-FULFILMENT
5.1 In the event of breach of any of the Warranties by the Sellers or any
obligation(s) of the Sellers under this Agreement other than the Warranties
(together hereinafter: a "BREACH"), the Sellers shall indemnify PACCAR and
hold PACCAR harmless from and against any and all damages and/or
liabilities resulting from such Breach, provided that - with the exception
of the warranty contained in article 1.3 - the maximum liability of Sellers
is limited to the amount of the Escrow Hold-back Fund and that PACCAR -
with the exception of the warranty contained in article 1.3 - shall
exclusively be entitled to recover any and all damages and/or liabilities
resulting from such Breach from the Escrow Hold-back Fund, without any
recourse against any of the Sellers and/or by way of set off. In case of a
non-fulfilment of the obligations of the Sellers under article 1.3 of this
Agreement, PACCAR may require specific performance thereof. For clarity's
sake, in the event of a breach of the warranty contained in article 1.3,
PACCAR will have no recourse against the Escrow Hold-back Fund.
5.2 The liability of the Sellers for damages in connection with a Breach shall
be fixed at the amount required to put PACCAR - or, at PACCAR's sole
option, the Company or any of the Subsidiaries - in the position in which
they (it) would have been if the relevant Breach had not occurred.
5.3 For the avoidance of doubt, it is hereby expressly agreed that the
liability of the Sellers shall include
9
liability for all costs reasonably incurred by PACCAR relating to the
prevention or limitation of any loss or damage resulting from or arising as
a result of any Breach and in particular but without limitation shall
include all reasonable legal and other similar costs incurred in
instructing and using professional advisors. When determining the damages
as a result of any Breach, the gross amount of such damages shall be
reduced by any tax savings realised by, or increased by any tax liabilities
arising out of the payment of such damages for, the Company or the
Subsidiaries or PACCAR.
5.4 The liability of the Sellers in respect of the Warranties and in respect of
any obligations pursuant to this Agreement, except for liability in respect
of the warranty set forth in article 1.3 shall terminate on the first
anniversary of the Closing Date in respect of all Warranties, except in
respect of any claim made by PACCAR of which notice in writing is given to
the Sellers in compliance with the provisions of the Escrow Agreement
before the first anniversary of the Closing Date. For the avoidance of
doubt, the liability of any of the Sellers with respect to article 1.3
shall only be limited by the statute of limitations.
5.5 PACCAR shall promptly give notice to the Sellers of any claim in accordance
with the procedure set out in the Escrow Agreement. The obligation of the
Sellers to indemnify shall also be governed by the provisions set out in
the Escrow Agreement.
5.6 If and insofar a matter giving rise to a Breach has specifically been
provided for in the Financial Statements (as defined in SCHEDULE E) of the
Company, the damage resulting from any such Breach shall not be charged
against the Escrow Hold-back Fund except to the extent that the provision
in the Financial Statements is less than the amount of the damages as a
result of such Breach.
10
5.7 If the Breach is the result of or is related to a liability vis-a-vis a
third party or a dispute with a third party, including the tax authorities
and the authorities charged with the enforcement of social security
legislation, PACCAR shall ensure that
(a) the Company or the Subsidiary, which it concerns, will at the joint
request and instruction of PACCAR and the Sellers' Agent (as referred
to in SCHEDULE C, hereinafter: the "SELLERS AGENT") do everything
necessary to defend itself at the cost of the Sellers with respect to
such third party claim; and
(b) the Company or the Subsidiary, as the case may be, will at the cost of
the Sellers engage advisors to be appointed by PACCAR and the Sellers'
Agent jointly.
Reimbursement of costs incurred by the Company or the Subsidiaries which
are for Sellers' account on the basis of the provision of this article,
will be paid out of the Escrow Hold-back Fund exclusively.
5.8 Without prejudice to the other limitations of Sellers' liability pursuant
to this Article, the Sellers cannot be liable for any Breach if, and to the
extent that,
(a) the damage caused by a Breach has already been indemnified under any
insurance of the Company or any Subsidiary; or
(b) the Breach would not have occurred without a change in the law,
applicable regulations or case law which has occurred after the
Closing; or
(c) the Breach is caused by a change after the Closing in the method or
basis of consolidation or for the valuation of assets and liabilities
and/or the determination of results as applied previously until
11
the Closing; provided that such previous methods or basis comply with
Dutch General Accounting Principles or those of the relevant other
jurisdictions; or
(d) PACCAR or the Company or any Subsidiary, as the case may be, has
already been fully indemnified by a third party, including insurers.
5.9 If PACCAR, the Company or any Subsidiary receives after having been
indemnified by Sellers for any damages suffered as a result of a Breach,
any compensation from a third party which is meant to cover the same
damage, PACCAR or, as the case may be, the Company, will pay back the
amount received from Sellers to the extent that this amount does not exceed
the amount of the payment received from that third party.
5.10 In order to enable the Sellers and their advisors to investigate an
(alleged) Breach as well as the consequences resulting therefrom PACCAR and
the Company shall ensure that the Sellers' Agent as soon as possible will
receive copies of all relevant documents and other relevant information and
will receive all reasonably required assistance from management, personnel
and advisors of the Company and the Subsidiaries.
5.11 PACCAR and the Company shall ensure that the Company and the Subsidiaries
shall preserve all relevant documents and other information concerning a
Breach or a potential Breach until all pending Claims (as defined in the
Escrow Agreement) have been decided.
ARTICLE 6: MISCELLANEOUS
6.1 This Agreement represents the entire understanding and agreement between
PACCAR, the Sellers and the Company with respect to the purchase and sale
of the Shares and
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supersedes all previous agreements, both in writing and oral, including
correspondence.
6.2 Headings are for ease of reference only and shall not affect the
interpretation of this Agreement.
6.3 Any notice or other communication in connection with this Agreement shall
be in writing and be mailed to the following addresses or to such other
addresses in the Netherlands as the parties shall have given notice of
pursuant to this Article:
PACCAR:
PACCAR Holding B.V.
c/o PACCAR Inc.
attn. Mr. G. Xxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxxxx 00000
Tel. : (0) 000 000 0000
Fax : (0) 000 000 0000
SELLERS
Stichting Sellers Agent DAF Trucks N.V.
attn. Xx. X.X. Xxxx
X.X. Xxx 00000
0000 XX Xxx Xxxx
Tel. : (00) 00 000 0000
Fax : (00) 00 000 0000
COMPANY
DAF Trucks N.V.
attn. Xx. X.X. xx Xxxx
Company secretary
X.X. Xxx 00000
0000 XX Xxxxxxxxx
Tel. : (00) 00 000 0000
Fax : (00) 00 000 0000
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6.4 Each party will bear its own costs and expenses in relation to the entry
into, execution and performance of this Agreement, including all
negotiations, preparations and investigations.
6.5 In this Agreement, unless the context otherwise requires, words importing
the singular include the plural and vice versa and words importing gender
include all genders.
6.6 Except where otherwise expressly provided, all amounts in this Agreement
are stated and shall be paid in Dutch Guilders.
6.7 Each of the provisions contained in this Agreement is distinct and
severable and a declaration of invalidity or unenforceability of any such
provision or part thereof by a court of competent jurisdiction shall not
affect the validity or unenforceability of any other provision hereof.
6.8 Except as expressly provided in this Agreement, no amendment or waiver of
this Agreement shall be binding unless executed in writing by the party to
be bound thereby. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision nor shall any waiver of any
provision of this Agreement constitute a continuing waiver unless otherwise
expressly provided.
6.9 This Agreement shall be governed by and construed in accordance with the
laws of the Netherlands.
6.10 All disputes between the parties hereto arising under or in connection with
this Agreement or further agreements resulting from this Agreement
including all disputed claims for breach by either party or any
representation, warranty, undertaking or covenant on its part under this
Agreement, shall be finally settled in accordance with
14
the Rules of the Netherlands Arbitration Institute (NEDERLANDS ARBITRAGE
INSTITUUT) in Rotterdam. The arbitrators shall decide according to the
rules of law. The place of arbitration shall be Rotterdam and the arbitral
procedure shall be conducted in the English language.
6.11 Parties hereby irrevocably waive their rights to invoke the dissolution
("ontbinding") under article 265 of Book 6 of the Dutch Civil Code or the
annulment ("vernietiging") of this Agreement.
6.12 PACCAR Inc will ensure that PACCAR has sufficient funds to pay the Purchase
Price.
6.13 This Agreement may be signed in counterparts and each such counterpart
shall constitute an original document and such counterparts, taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF this Agreement has been executed by the parties hereto in
triplicate on the date set out on page one.
____________________________
PACCAR Holding B.V.
by:
its:
____________________________
Xx Xxxxx der Nederlanden
by:
its:
15
____________________________
N.V. Truck Financiering
by:
its:
____________________________
Nationale Nederlanden Levensverzekering Mij. N.V.
by:
its:
____________________________
Nationale Nederlanden Schadeverzekering Mij. N.V.
by:
its:
____________________________
RVS Levensverzekering N.V.
by:
its:
____________________________
RVS Beleggingen N.V.
by:
its:
____________________________
Aegon Custody B.V.
by:
its:
16
____________________________
Lorry Finance B.V.
by:
its:
____________________________
ABN AMRO Effecten Compagnie B.V.
by:
its:
____________________________
Beleggingsmaatschappij Hegekind B.V.
by:
its:
____________________________
Stichting OFASEC
by:
its:
____________________________
Barclays Bank Plc
by:
its:
____________________________
National Westminster Bank Plc
by:
its:
17
____________________________
Banque de Suez Nederland N.V.
by:
its:
____________________________
Lloyds Bank Plc.
by:
its:
____________________________
PARNIB Belgie N.V.
by:
its:
____________________________
Generale Bank N.V.
by:
its:
____________________________
Generale Bank Nederland N.V.
by:
its:
____________________________
VDL Participatie B.V.
by:
its:
18
____________________________
Xxxxxxx Feijts Beheer B.V.
by:
its:
____________________________
Mavlegro Beleggingen B.V.
by:
its:
____________________________
Ingras B.V.
by:
its:
____________________________
Evicar Commercio de Camioes Lda
by:
its:
____________________________
DAF Trucks N.V.
by:
its:
Agreed and accepted with regard
to articles 4.5 and 6.12 only
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____________________________
PACCAR Inc
by:
its:
