1
EXHIBIT 4.5
NOTARIAL DEED
SALE AND ASSIGNMENT AGREEMENT
(VINTRON GMBH)
Negotiated at Basel/Switzerland this 19th (nineteenth) and 20th (twentieth)
day of May 2000 (two thousand).
Before me, the undersigned Notary Public
XXXXXXX XXXXX
at Basel/Switzerland appeared today:
1. Xx. Xxxxxxx Xxxxxxxxx, born September 17, 1970, attorney-at-law, German
citizen, with business address at D-60311 Xxxxxxxxx/Xxxx,
Xxxxxxxxxxxxxxx 00-00, and private domicile at X-00000 Xxxxxxxxx, Alt
Xxxxxxxxxxxx 00, identified by his German Personalausweis,
according to her declarations acting not in her own name, but in the
name and on behalf of
Vinnolit GmbH & Co. KG, a German limited partnership with head office at
D-85737 Ismaning, Xxxx-Zeiss-Ring 25, to be registered with the
Commercial Register at the Local Court of Munchen under Section A,
presenting a written power of attorney dated May 17, 2000, a true copy
of which is attached,
- hereinafter referred to as "Buyer" -
2. Xx. Xxxx Xxxxxxxxx, born January 7, 1965, attorney-at-law, German
citizen, with private domicile at D-60318 Xxxxxxxxx xx Xxxx, Xxxxxxxxxx.
00, identified by his German Personalausweis,
2
2
according to his declarations acting not in his own name, but in the
name and on behalf of
Celanese Chemicals Europe GmbH, a German limited liability company with
head office at D-60439 Frankfurt am Main, Lurgiallee 14, registered with
the Commercial Register at the Local Court of Frankfurt am Main under
No. HRB 42088, presenting a written power of attorney dated May 10,
2000, and an extract from the Commercial Register dated March 8, 2000,
true copies of which are attached,
- hereinafter referred to as "Seller" -
The acting notary asked the persons appeared prior to the notarization whether
he or any of his partners acts or acted in the matter to be recorded for any
of the parties of this deed outside his or, as the case may be, their notarial
function (Section 3 para. 1 No. 7 German Recording Act (Beurkundungsgesetz)).
The answer was negative.
The persons appeared requested this Deed including its Schedules to be
recorded in the English language. The acting Notary Public who is in
sufficient command of the English language ascertained that the persons
appeared are also in command of the English language. After having been
instructed by the acting Notary, the persons appeared waived the right to
obtain the assistance of a sworn interpreter and to obtain a certified
translation of this Deed including the Schedules hereto.
The persons appeared asked for the Notarization of the following:
SALE AND ASSIGNMENT AGREEMENT
entered into between
Celanese Chemicals Europe GmbH,
with its seat in Frankfurt am Main,
(hereinafter referred to as the "SELLER")
and
3
3
Vinnolit GmbH & Co. KG
with its seat in Ismaning,
(hereinafter referred to as the "BUYER")
(the Seller and the Buyer hereinafter also referred to singly as
the "PARTY" and collectively as the "PARTIES")
TABLE OF CONTENTS PAGE
PREAMBLE............................................................................4
SECTION 1 DEFINITIONS...............................................................5
SECTION 2 SALE AND TRANSFER; EFFECTIVE DATE AND CLOSING DATE........................8
SECTION 3 CLOSING CONDITIONS.......................................................10
SECTION 4 INFRASERV AND OTHER CONTRACTS CONNECTED TO CELANESE......................12
SECTION 5 CONSIDERATION............................................................14
SECTION 6 ANNUAL ACCOUNTS..........................................................15
SECTION 7 REPRESENTATIONS AND WARRANTIES OF THE SELLER.............................17
SECTION 8 REPRESENTATIONS AND WARRANTIES OF THE BUYER..............................24
SECTION 9 REMEDIES.................................................................25
SECTION 10 INDEMNIFICATION.........................................................28
SECTION 11 LIMITATION OF LIABILITIES...............................................36
SECTION 12 SURVIVAL OF CLAIMS AND REMEDIES.........................................37
SECTION 13.........................................................................38
SECTION 14 COVENANT NOT TO COMPETE.................................................38
SECTION 15 FURTHER COVENANTS OF THE BUYER..........................................38
SECTION 16 CARTEL CLEARANCE, OTHER COVENANTS OF THE PARTIES........................39
SECTION 17 GENERAL PROVISIONS......................................................39
4
4
PREAMBLE
WHEREAS, the Seller is a fully owned subsidiary of Celanese AG ("CELANESE");
WHEREAS, the Seller holds all shares in Vintron GmbH ("VINTRON"), a company
engaged in the chlorine chemicals business at the facilities in Knapsack
relating to the research, development, production, packaging, marketing and
sale of
- Chlorine
- Caustic Soda
- Hydrogen
- Ethylendichlorid (EDC)
- Vinylchlorid (VCM)
- Hydrochloric Acid,
such business, to the extent currently conducted, being referred to as the
"BUSINESS";
WHEREAS, Vintron is a company with limited liability, registered with the
commercial register of the local court Bruehl under HRB no. 2740. In the course
of a capital increase in kind (Sachkapitalerhoehung) from a nominal share
capital of DM 50,000 to DM 60,000, the Seller has contributed into Vintron its
chlorine chemicals business at Knapsack, including a share in InfraServ. The
capital increase has been registered in the commercial register as of 20
October 1999.
WHEREAS, the Seller holds the following shares in Vintron:
a) one share in the nominal amount of DM 50,000;
b) one share in the nominal amount of DM 10,000.
The shares referred to under a) and b) above are hereinafter collectively
referred to as the "SHARES".
WHEREAS, all production activities related to the chlorine chemicals business
as described in the second paragraph of this Preamble are located at the
facilities at Chemiepark Knapsack and the Rhine Harbour Godorf.
WHEREAS, the Seller intends to sell its shares in Vintron and, thus, to divest
the Business;
5
5
WHEREAS, the Buyer, a limited partnership which has been duly established
under the laws of Germany and reported for registration in the commercial
register on 18 May 2000, but has not yet been registered, duly represented by
its general partner CM 00 Vermoegensverwaltung 058 GmbH, registered in the
commercial register of the local court in Munich under HRB 130662 (hereinafter
referred to as CM 058 GmbH), desires to acquire the Seller's shares in
Vintron;
WHEREAS, the Buyer, at the date hereof, has further entered into an agreement
regarding the acquisition of all the shares in Vinnolit Monomer GmbH & Co KG
and in Vinnolit Monomer Geschaeftsfuehrungs GmbH from Vinnolit Kunststoff GmbH,
a joint venture of Xxxxxx Chemie GmbH ("WACKER") and Celanese (through its
wholly owned subsidiary Diogenes Dreizehnte Vermoegensverwaltungs GmbH, to be
renamed Celanese Holding GmbH), in a separate transaction (the "VINNOLIT
TRANSACTION") which shall be consummated simultaneously;
WHEREAS, the Parties agree that the terms of the Agreement and its Schedules
shall comprehensively and conclusively constitute the entire agreement of the
parties in respect of the transactions contemplated by the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements and
covenants hereinafter set forth, it is hereby agreed as follows:
SECTION 1
DEFINITIONS
For the purpose of the Agreement the terms below shall have the following
meanings:
"ADDITIONAL PAYMENT I" The Payment to be made by the
Seller into the equity of
Vintron pursuant to Section
2.4 b).
"ADDITIONAL PAYMENT II" The payment to be made by the
Seller into the equity of
Vintron pursuant to Section
2.4 c).
6
6
"AGREED ACCOUNTING PRINCIPLES" The accounting principles
applicable for the Annual
Accounts as agreed between the
Parties and set forth in
Schedule 6.2 in order to
determine the EBITDA for the
time periods ending on 31
December 2000 and 31 December
2001 as referred to in Section
6.2.
"AGREEMENT" This Sale and Assignment
Agreement together
with all Schedules hereto.
"ANNUAL ACCOUNTS" The annual accounts of Vintron
for the business years ending
on 31 December 2000 and 31
December 2001 to be prepared
and audited pursuant to
Section 6.2 (a) hereto.
"AUDITED ANNUAL ACCOUNTS" The Annual Accounts as audited
pursuant to Section 6.2 (b)
hereto.
"BUSINESS" The business activities of
Vintron as defined in the
second paragraph of the
preamble to the extent
currently conducted.
"BUYER'S AFFILIATES" Enterprises affiliated with
the Buyer within the meaning
of Section 15 German Stock
Corporation Code
["Aktiengesetz"].
"CLOSING" The consummation of the
transactions contemplated in
the Agreement.
"CLOSING DATE" The date on which the Closing
occurs, as defined in Section
2.4.
7
7
"EBITDA" The financial figure with all
depreciation and amortisation
added back to the operating
profit = earnings from
operations
["Betriebsergebnis"] according
to German GAAP consistently
applied and based on the
principles of balance sheet
continuity and continuity of
valuation in accordance with
the Agreed Accounting
Principles. For the avoidance
of doubt, it is assumed that
no management cost for the
acquisition of Vintron or
administration of the funds
will be charged and that no
business will be transferred
to other entities and that
business will be run with
continuity of arm's length
principles. For the avoidance
of doubt, it is clarified that
the EBITDA is calculated
excluding any interest or tax.
"EFFECTIVE DATE" 1 January 2000, 00.00 h.
"FINAL ANNUAL ACCOUNTS" The finally binding Audited
Annual Accounts as defined in
Section 6.2 (c).
"FINANCIAL STATEMENTS" The financial statements as
defined in Section 6.1.
"GAAP" German generally accepted
accounting principles
["Grundsaetze ordnungsgemaesser
Buchfuehrung- und Bilanzierung"].
"INFRASERV" InfraServ GmbH & Co. Knapsack
KG having its registered seat
in Bruehl and registered in the
Commercial Register at the
Local Court (Amtsgericht)
Bruehl under HRA 0995, an
entity in which Vintron holds
a minority interest as further
defined in Section 4.1 hereof.
8
8
"REAL PROPERTIES" The essential land and
premises leased ["gemietet
oder gepachtet"] by Vintron or
in respect of which Vintron
has hereditary building rights
["Erbbaurechte"] as defined in
Section 7.17.
"SELLER'S AFFILIATES" Enterprises affiliated with
the Seller within the meaning
of Section 15 of the German
Stock Corporation Code
["Aktiengesetz"]
"SHARES" The shares in Vintron held by
the Seller as described in the
fourth paragraph of the
preamble.
"VESTOLIT" Vestolit GmbH & Co. KG with
its seat in Marl.
"VINNOLIT TRANSACTION" The Acquisition of all the
shares in Vinnolit Monomer
GmbH & Co. KG and Vinnolit
Monomer Geschaeftsfuehrungs GmbH
from Vinnolit Kunststoff GmbH
by the Buyer in a separate
transaction as described in
the eighth paragraph of the
preamble.
"VINTRON" Vintron GmbH, a company with
limited liability, registered
with the commercial register
of the local court of Bruehl
under HRB 2740.
SECTION 2
SALE AND TRANSFER; EFFECTIVE DATE AND CLOSING DATE
2.1 The Seller hereby sells the Shares to the Buyer. The Buyer hereby
accepts the sale. The sale shall have economic effect as of the
Effective Date (as defined in Section 2.3).
2.2 The Seller hereby transfers the Shares to the Buyer. Buyer hereby
accepts such transfer. The transfer shall take effect from the Closing
Date (as defined in Section
9
9
2.4). Prior to the Closing Date, Vintron shall execute an
indemnification letter in which Vintron undertakes vis-a-vis the Seller
to be fully responsible for all liabilities caused by the conduct of the
business operation of Vintron after the Closing Date and to indemnify
Seller and hold the Seller harmless, from all such liabilities.
2.3 Throughout this Agreement, "EFFECTIVE DATE" shall be 1 January 2000,
00.00 h.
2.4. Throughout this Agreement, "Closing Date" take place at the offices of
Hengeler Xxxxxxx Xxxxxxx Xxxxx, Frankfurt am Main, or at such other
place as Seller and Buyer mutually agree, as soon as practicable, and,
unless otherwise agreed or waived by the Seller and the Buyer, under no
circumstances no later than (5) five business days after all of the
Closing Conditions (as defined in Section 3) have been satisfied:
a) Seller shall pay the Consideration (as defined in Section 5.1);
b) Seller and Vintron shall execute a loan agreement, providing for a
DM 76 million interest free loan to Vintron to be repaid on 31
December 2007. The loan agreement shall provide that the loan
ranks ahead of shareholder loans, if any, granted to Vintron, and
behind any bank financing or supplier financing regarding "PROJECT
ZEUS" as described in SCHEDULE 2.4 b). The loan agreement shall
further provide that the loan becomes payable on 31 December 2007
at the latest.
2.5 Immediately prior to the performance of the acts described in Section
2.4,
a) Seller shall pay an amount of DM 100 million (Deutsche Xxxx one
hundred million) as additional payment into the equity (Section
272(2) No. 4 German Commercial Code) of Vintron (the "ADDITIONAL
PAYMENT I");
b) Seller shall pay an amount of DM 37 million (Deutsche Xxxx
thirty-seven million) as additional payment into the equity
(Section 272(2) No. 4 German Commercial Code) of Vintron (the
"ADDITIONAL PAYMENT II");
c) the profit and loss absorption agreement of December 21, 1998
entered into between Seller and Vintron shall be discontinued with
effect as of the Closing Date, it being understood that, at the
Seller's option, the fiscal year may be changed for this purpose.
2.6 The Parties shall confirm that all Closing Conditions have either been
satisfied or waived and all actions to be taken on the Closing Date have
been taken or waived.
10
10
SECTION 3
CLOSING CONDITIONS
3.1 This Agreement shall be closed only if the following conditions have
been either satisfied or waived as agreed between Seller and Buyer which
consent by either Party shall not be unreasonably withheld:
a) The execution of the VC-Liefervertrag between Vintron and Vinnolit
Monomer GmbH & Co. KG ("Vinnolit") in the form initialled between
Vintron and Vinnolit as of 16 December 1998 pursuant to which
Vintron undertakes to supply VCM and EDC to Vinnolit at the sites
of Knapsack and Koeln-Merkenich.
b) The execution of the VCM expansion contract between Vintron and
Xxxxx Xxxx in the form initialled between Vintron and Xxxxx Xxxx
pursuant to which Xxxxx Xxxx undertakes to plan, provide, supply
and set up, ready for immediate occupation and manufacturing, a
330,000 jato VCM facility, it being understood that Section 9.3 of
the VCM expansion contract might still be subject to negotiations.
c) The execution of an ethylene contract between Vintron and Celanese
AG & Co. Procurement Olefin KG providing for an amount of appr.
150,000 t/a up to the year 2007 and on the transfer of the
property in the ethylene pipelines L1 and L8 (consisting of L8.1,
L8a, and L8b), for the avoidance of doubt, the section outside the
plants as well as the section inside the plants Huerth and
Knapsack, from Vintron to InfraServ GmbH & Co Hoechet KG at
book-value.
d) Advent has obtained the final and definitive commitment by the
banks to provide the financing required for the transactions
contemplated by this Agreement.
e) The Parties shall have obtained the unconditional approval,
clearance, or notice of none-action from the German Federal Cartel
Office and/or the European Commission under pertinent merger
control provisions in respect of the consummation of the
transactions contemplated by this Agreement.
f) The Parties shall have reached an agreement about the use of the
VC pipeline at the Godorf port, either by providing for a transfer
of title in the VC pipeline
11
11
to Vintron or by granting long-term access to Vintron on terms
which are fair and reasonable.
g) Celanese AG shall have entered into option and voting agreements
(the "OPTION AND VOTING AGREEMENTS") (i) with Vintron regarding
the shareholding of Celanese AG as limited partner of InfraServ
GmbH & Co. Knapsack KG and (ii) with Vinnolit Monomer GmbH & Co.
KG regarding the shareholding of Celanese AG as limited partner of
InfraServ GmbH & Co. Gendorf KG, which Option and Voting
Agreements shall provide substantially as follows:
(i) Celanese AG irrevocably grants (i) to Vintron the option to
acquire from Celanese AG a 5.1% interest as limited partner
("Kommanditist") in InfraServ GmbH & Co. Knapsack KG and
(ii) to Vinnolit Monomer GmbH & Co. KG the option to acquire
from Celanese AG a 9.1 % interest as limited partner in
InfraServ GmbH & Co. Gendorf KG (collectively, the "KG
SHAREHOLDING") against payment of a purchase price amounting
to the book value of the AG Shareholding in the books of
Celanese AG as per 31 December 1999.
The transfer of the KG Shareholding shall be subject to the
approval of the partner's meeting with a majority of 80% of
the votes cast as provided for in the respective partnership
agreement ("Gesellschaftsvertrag") of the InfraServ
partnership and further subject to the registration of the
acquiror as successor by way of singular succession
["Einzelrechtsnachfolge"] in the respective commercial
register.
The KG Shareholding shall not carry any potential obligation
to pay additional cash contributions
("Nachschussverpflichtung") within the meaning of the
respective partnership agreement.
The purchase agreement shall contain the representations by
Celanese AG (i) that all contributions to the KG
Shareholding have been fully paid in and that no repayments
of capital contributions has been effected, neither directly
nor concealed, (ii) that the KG Shareholding is validly
existing, free and clear of any liens, rights, claims and
privileges of third parties and (iii) that Celanese AG may
freely dispose such KG
12
12
Shareholding, unless otherwise set forth in the respective
partnership agreement. No further representations,
warranties or guarantees shall be given by Celanese.
(ii) For as long as Vintron or Vinnolit Monomer GmbH & Co. KG, as
the case may be, does not hold more than 20 % of the voting
rights in the respective InfraServ partnership, Celanese
hereby undertakes to exercise its voting rights in partners'
meetings of the respective InfraServ partnership only upon
instruction of Vintron or Vinnolit Monomer GmbH & Co. KG, as
the case may be, to the extent required to avoid that
resolutions be adopted with a majority of 80 % of the votes
cast against the instructions by Vintron or Vinnolit Monomer
GmbH & Co. KG. Prior to such partners' meetings, Vintron or
Vinnolit Monomer KG, as the case may be, shall give written
instructions to Celanese AG specifying the reasons for the
desired voting.
Notwithstanding the generality of the foregoing, Celanese AG
shall use reasonable efforts to procure that the hereditary
building right held by Vintron at the site of Knapsack and
by Vinnolit Kunststoff GmbH/Vinnolit Monomer GmbH & Co. KG
at the site Gendorf shall be extended after expiration, and
that the respective partners' meetings approve the transfer
of the KG Shareholding to Vintron and Vinnolit Monomer GmbH
& Co. KG.
h) The closing conditions of the Vinnolit Transaction have been
satisfied or waived (not taking into regard a closing condition
according to which the Vinnolit Transaction shall be closed only
if the closing condition of this Section 3.1 h) has been satisfied
or waived).
3.2 Buyer and Seller undertake to use best reasonable endeavours to ensure
that the closing conditions set forth in section 3.1 above are satisfied
as soon as possible after the date hereof.
SECTION 4
INFRASERV AND OTHER CONTRACTS CONNECTED TO CELANESE
4.1 The chlorine chemicals business of Vintron is an integrated part of the
facilities at Knapsack which is hosting, and is used by, several
companies and has been, and
13
13
continues to be, developed into an industrial park under the management
of InfraServ, a limited partnership established under German law. In
order to allow for an effective and user-oriented management of the
site, the title in the land and buildings at Knapsack was transferred
from Hoechst to InfraServ. Vintron is a limited partner ("Kommanditist")
of InfraServ holding a limited partnership interest in an amount equal
to 15% of the fixed capital (Hafteinlagen und Pflichteinlagen) of
InfraServ as stated in the fixed capital accounts of InfraServ (it being
understood that this partnership interest, under the rules of Section 6
of the partnership agreement ("Gesellschaftsvertrag"), obliges the
partner to pay 21.75% of the additional cash contributions
("Nachschuesse"), if any, as provided for in the contribution agreement
between the Seller and Vintron dated December 21, 1998 as amended August
27, 1999.
For the avoidance of doubt, the Buyer hereby acknowledges the existence
of contractual relationships between Vintron and InfraServ.
4.2 Seller and Vintron will discontinue the profit and loss agreement of
December 21, 1998 entered into between Seller and Vintron as of the
Closing Date. To the extent necessary, Buyer will, also after the
Closing Date, cause Vintron to take all actions and cause to be issued
all declarations which might still be necessary or appropriate for the
due discontinuation of the profit and loss agreement and the publication
and registration of the discontinuation with the competent authorities.
The Parties acknowledge that the consideration has been calculated and
the financial arrangements for the acquisition of Vintron have been made
on the assumption that actual losses for the fiscal year 2000 would not
be compensated by the Seller due to the profit and loss agreement. Any
profits passed on to the Seller for the period until the Closing Date
under the profit and loss agreement shall not be reclaimed or requested
by Buyer; Section 5.3 shall remain unaffected.
4.3 The Buyer shall procure that Vintron will pay back in full the financial
interest bearing liabilities, not including any trade receivables, owed
by Vintron to the Seller and/or the Seller's Affiliates as per the
Closing Date, if any, within 5 (five) business days, regardless whether
due or not. On the other side, the Seller shall, and shall procure that
the Seller's Affiliates will, pay back the financial interest bearing
liabilities, not including any trade receivables, owed by them to
Vintron as per the Closing Date, if any, within (5) five business days,
regardless of whether due or not.
14
14
SECTION 5
CONSIDERATION
5.1 The consideration for the Shares shall be negative and amount to DM
20,861,741.50 (Deutsche Xxxx twenty million eight hundred sixty one
thousand seven hundred forty one and 50/100) to be paid by Seller to
Buyer on the Closing Date (the "PURCHASE PRICE"). The amount of the
Purchase Price reflects the net interest bearing financial debts of
Vintron as of 31 December 1999 (plus DM 1.00) and shall be used to
satisfy interest bearing financial debts of the Seller.
5.2 The Additional Payment I shall be lost and forfeited provided that the
Buyer fully complies with its obligations under Section 5.4.
5.3 Buyer shall cause Vintron to pay back the Additional Payment II minus
the amounts paid by Vintron to the Seller pursuant to the Profit and
Loss Agreement dated 21 December 1998 for the time period between 1
January 2000 and the Closing Date in the amount by which the accumulated
EBITDA as shown in the Final Annual Accounts of Vintron as of 31
December 2000 and as of December 31, 2001 exceeds in the positive the
amount of DM - 48,700,000.00 (Deutsche Xxxx minus forty eight million
seven hundred thousand) (e.g., if the accumulated EBITDA amounts to DM -
45,000,000 then the amount to be paid back shall be DM 3,700,000). The
redemption claim shall become due one week after the Final Annual
Accounts of Vintron as of December 31, 2001 have been established. For
the avoidance of doubt, the calculated accumulated EBITDA of DM -
48,700,000 (Deutsche Xxxx minus forty eight million seven hundred
thousand) includes the DM - 20,400,000 (Deutsche Xxxx minus twenty
million four hundred thousand) referred to in Section 10.3.
The Buyer shall cause Vintron to use all reasonable endeavours to ensure
that the EBITDA will exceed the amount referred to above. The Buyer
shall from time to time and/or on written request of the Seller, keep
informed the Seller in writing on Vintron's endeavours and measures
taken in this respect. The Buyer shall cause Vintron to promptly submit
to the Seller (i) copies of any reports and other information relating
to the financial or economic situation of the Buyer and/or Vintron as
delivered to the banks of the Buyer or Vintron from time to time, (ii)
the audited consolidated and individual annual statements of the Buyer
and Vintron and (iii) monthly management reports, substantially in the
form as prepared by the management and delivered to Celanese as at the
date hereof. On request of the Seller, twice a year, the Buyer shall
grant and procure that Vintron grants, to the Seller or
15
15
the Seller's accountants, access to its books and records or other
relevant documents for inspection or copying regardless of whether those
documents are situated at their properties or elsewhere.
5.4 Provided that Xxxxx Xxxx has complied with its obligations under the VCM
expansion contract referred to in Section 3.1 b), Buyer will cause
Vintron to complete all planned expansion of Vintron's production and
transport capacity at Knapsack known as Project Zeus as defined in
SCHEDULE 2.4 B)(the "Expansion Obligation"). Buyer shall be deemed to
have fully complied with the Expansion Obligation upon complete and
unconditional fulfilment of its payment obligations under the VCM
expansion contract. Furthermore, Buyer will cause Vintron to use the
Additional Payment I for the Expansion Obligation only and that it will
cause Vintron not to make any payments to the Buyer or any company
affiliated with Buyer by way of release of capital reserves, decrease of
share capital, extraordinary dividends (including hidden dividends),
granting of intra-company loans or guarantees or any form of payment for
which no appropriate consideration is paid.
In the event that (i) prior to the compliance with the Expansion
Obligation Buyer or any company affiliated with Buyer violates any of
the aforementioned obligations, and (ii) Vintron does not comply with
its payment or other obligations under the VCM expansion contract, then
Buyer shall pay, and Buyer shall procure that Vintron shall pay, as
joint debtors (Gesamtschuldner), an amount equal to the Additional
Payments I and II which has been used contrary to the obligations set
forth in this Section 5.4 as lump-sum damages compensation, it being
understood that the right of Seller to claim additional damages suffered
shall remain unaffected therefrom.
In order to avoid any double recovery, a violation of the aforementioned
obligations shall not result in payment obligations under this Section
5.4 to the extent that the violation results in payment obligations
under 5.3.
Buyer is aware that Seller, with the approval of Buyer, has made and
will make prepayments to Xxxxx Xxxx for the implementation of Project
Zeus.
SECTION 6
ANNUAL ACCOUNTS
6.1 FINANCIAL STATEMENTS. The Seller has delivered to the Buyer complete and
accurate copies of the audited financial statements of Vintron for the
business year ended 31
16
16
December 1999 (the "FINANCIAL STATEMENTS"). The Financial Statements
have been prepared in accordance with German generally accepted
accounting principles ("GAAP") consistently applied and based on the
principles of balance sheet continuity ["unter Wahrung der
Bilanzierungs- und Bewertungskontinuitaet"].
6.2 ANNUAL ACCOUNTS 2000 AND 2001. With regard to the determination of the
EBITDA for the business years 2000 and 2001 the following shall apply:
(a) The Buyer shall cause Vintron to prepare, without undue delay
after the respective record date, its annual accounts as of 31
December 2000 and 31 December 2001 in accordance with GAAP (the
"ANNUAL ACCOUNTS"). In order to determine the EBITDA for the
respective business years, the Annual Accounts shall be adjusted,
in a separate calculation, in accordance with the agreed
accounting principles as defined in SCHEDULE 6.2 hereto (the
"AGREED ACCOUNTING PRINCIPLES").
(b) The Buyer shall cause the auditor of Vintron (i) to audit without
undue delay, but not later than (3) three months after the
respective balance sheet date, the Annual Accounts, (ii) to adjust
them, in a separate calculation, within such time period to comply
with the Agreed Accounting Principles (the Annual Accounts so
audited and, if applicable, adjusted the "AUDITED ANNUAL
ACCOUNTS") and (iii) to make available without undue delay an
authentic copy of the Audited Annual Accounts to the Seller.
(c) Within (1) one month after receipt of the Audited Annual Accounts
for the respective years, the Seller is entitled to raise
objections in writing that and in what respect the Audited Annual
Accounts, to the extent relevant for the determination of the
EBITDA, do not comply with the Agreed Accounting Principles. Any
disputes between the Seller and the Buyer which cannot be settled
directly between them shall be settled, upon request of either
Party, by an independent auditor ("INDEPENDENT AUDITOR") acting as
expert arbitrator ["Schiedsgutachter"]. If the Buyer and the
Seller cannot mutually agree upon such expert arbitrator within
(2) two weeks after either Party has requested its appointment,
the expert arbitrator shall be appointed by the Institute of
Chartered Accountants ["Institut der Wirtschaftspruefer e.V."] in
Duesseldorf. To the extent permissible by law (Section 319 of the
German Civil Code) the findings of such expert arbitrator shall be
finally binding on the Parties; the Buyer and the Seller shall
equally bear the costs of such expert arbitrator. If no objections
will
17
17
be raised pursuant to the first sentence of this sub-section (c)
the Audited Annual Accounts are the "FINAL ANNUAL ACCOUNTS" within
the meaning of this Agreement. If objections will be raised
pursuant to sentence 1 of this sub-section, the Audited Annual
Accounts as adjusted pursuant to the settlement between the
Parties or pursuant to the findings of the expert arbitrators are
the "Final Annual Accounts" within the meaning of this Agreement.
(d) The Buyer shall procure, and cause Vintron to procure, that the
audited EBITDA of Vintron can be identified separately, e.g. by
maintaining the book-keeping system ["Buchungskreise"] as
currently used by the Companies.
(e) The Buyer shall request the management of Vintron to ensure that,
on a timely basis, the Seller, any accounting firm appointed for
these purposes by the Seller and the expert arbitrator receive all
necessary assistance and a granted access to all relevant
documents in order to audit and examine the Annual Accounts, to
the same extent as if they were auditing annual accounts.
SECTION 7
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Buyer by way of independent
guarantee ("Selbstaendiges Garantieversprechen") as of the date hereof and,
unless otherwise provided hereunder, as of the Closing Date, with the legal
consequences as conclusively set forth in Section 9, and subject to the terms
and conditions set forth in Section 9 and 11, as follows:
7.1 INCORPORATION AND VALID EXISTENCE OF THE SELLER. The Seller is a limited
liability company ["GmbH"] duly established and validly existing under
the laws of Germany and has all necessary corporate power to execute and
deliver this Agreement and to perform fully its respective obligations
hereunder and to consummate the transactions contemplated hereby.
7.2 INCORPORATION AND VALID EXISTENCE OF VINTRON. Vintron is an enterprise
duly established and validly existing under the laws of Germany.
7.3 OWNERSHIP OF SHARES. The statements contained in the Preamble and
Section 4 are correct. All contributions to the registered share capital
of Vintron and to the interest in InfraServ have been fully paid in. No
repayment of capital contributions has been effected, neither directly
nor concealed.
18
18
7.4 EXISTENCE OF SHARES, THIRD PARTY RIGHTS. The Shares and the shares held
by Vintron in IntraServ are validly existing, free and clear of any
liens, rights, claims and privileges of third parties and the Seller may
freely and without any restrictions dispose such shares, unless
otherwise set forth in Section 2.1 or reflected in the corporate
documents referred to in Section 7.5 below. No options, pre-emptive
rights or similar undertakings have been given in respect of such shares
and no shareholders agreement or any similar undertaking regarding such
shares has been entered into unless otherwise reflected in the corporate
documents referred to in Section 7.5 below.
7.5 CORPORATE STATUS OF VINTRON. The corporate documents as registered with
and deposited at the relevant Commercial Registers and, in respect of
InfraServe, which have been provided to Buyer are correct and duly
reflect the corporate status of Vintron and InfraServ; no resolutions of
the shareholder of Vintron which are required to be registered in the
commercial register or similar registers have been passed which have not
been registered.
7.6 CORPORATE AGREEMENTS. There are no corporate agreements in the sense of
Sections 291,292 German Stock Corporation Act nor other cooperation or
joint venture agreements, nor fiscal unity, domination or profit pooling
agreements which bind Vintron.
7.7 PROFIT PARTICIPATION AGREEMENTS, SILENT PARTNERSHIPS. There are no
agreements regarding participation in the profit of Vintron of any kind,
in particular there are no silent partnerships, or loans with profit
participation ["partiarische Darlehen"].
7.8 FINANCIAL STATEMENTS. The Statements made under Section 6.1 are true and
correct.
7.9 NET INTEREST BEARING FINANCIAL DEBTS. The net interest bearing financial
debts of Vintron (i.e. interest bearing financial debts minus cash of
Vintron as of the Closing Date) shall not exceed the amount of DM
35,000,000 (Deutsche Xxxx thirty five million) minus debts incurred up
until the Closing Date for Project Zeus and related expansion projects
(together the "EXPANSION PROJECTS"), it being understood that the Seller
may cause Vintron to take all measures within the scope defined in
Sections 7.20 and 7.21 which do not exceed the aforementioned amount.
7.10 ASSETS. Vintron
19
19
(i) is the sole and unrestricted owner or lessee of the assets, which
were reflected in the Financial Statements of Vintron, with the
exception of assets which were sold, disposed of (including the
ethylene pipeline), replaced or, in the case of receivables,
collected since the date of the Financial Statements, and
including those acquired in the ordinary course of business after
the date thereof, and
(ii) the owned assets are unencumbered by third parties' rights, with
the exception of lessor's liens, liens or similar rights under
general business terms of banks and suppliers' liens under general
sales agreements, e.g. customary reservation of title rights
["Eigentumsvorbehalte"], and
(iii) Vintron owns or leases all assets ("Anlagevermoegen") and
inventories ("Umlaufvermoegen") necessary for carrying out the
Business and, to the Best Knowledge, all such assets and
inventories are in a condition which is adequate to carry on the
Business in the ordinary course of business and in substantially
the same fashion and manner as prior to the Closing Date, except
for ordinary tear and wear and unless liability reserves were
accrued;
(iv) to the Best Knowledge, the ordinary and extraordinary repair
budgets provide for adequate reserves regarding Vintron's
equipment;
(v) the buildings on the Real Properties are in good repair and
condition.
7.11 BANKRUPTCY. No insolvency proceedings have been initiated against
Vintron nor are there, to the Best Knowledge, any circumstances which
would justify the initiation of such proceedings. No circumstances exist
pursuant to applicable Insolvency Codes or the Voidancy Act
["Anfechtungsgesetz"] which would justify the voidance of this
Agreement.
7.12 LABOUR MATTERS. To the Best Knowledge, as at the date hereof, there are
no specific union activities involving Vintron, and there is no pending
or, threatened strike, picketing, work stoppage, work slowdown or other
similar labour trouble.
7.13 EMPLOYEES. To the Best Knowledge,
(i) all obligations, whether arising by operation of law, by agreement
or past custom, for payments and contributions with respect to
direct or indirect pension and retirement benefits or other
compensational benefits, such as anniversary payments to the
employees of Vintron, for periods prior to the date
20
20
hereof have been paid by Vintron or adequately accrued for in the
Financial Statements in accordance with Section 6a German Income
Tax Act ["EStG"] and the Seller will procure that Vintron pays or
accrues for such obligations until the Closing Date;
(ii) Vintron as at the date hereof does not employ or retain more than
270 employees (not taking into account employment relationships
which are limited in time or suspended);
(iii) as at the date hereof none of the key-employees (Xx. Xxxxxxx
Berwe, Xx. Xxxxxxx Xxxxxxx, Xxxxxxx-Xxxxx Xxxxxxx) have terminated
their current employment or have threatened to terminate such
employment. It is, however, known that Hermann-Xxxxx Xxxxxxx will
regularly retire in 2000.
(iv) There are no material informal and/or unwritten undertakings to
employees.
7.14 MATERIAL CONTRACTS. For the purpose of this Section 7.14 all agreements
which are material to the Business are hereinafter referred to as the
"MATERIAL CONTRACTS". To the Best Knowledge, there are no Material
Contracts other than the contracts presented to the Buyer in the course
of the Due Diligence referred to in Section 9.2. The Material Contracts
are in full force and effect and, to the Best Knowledge, are enforceable
against the Parties thereto in accordance with their terms. To the Best
Knowledge, no circumstances exist that will give any party to the
Material Contracts the right to terminate, other than ordinary
termination rights, in particular not as a result of the transactions
contemplated under this Agreement. Vintron has not received any written
information regarding any action or any material violation of any
Material Contracts. For the avoidance of doubt, it is clarified that
this Section 7.14 shall not apply to loan agreements of Vintron, in
particular regarding working capital facilities.
7.15 INSURANCE. With regard to insurance policies
(a) to the Best Knowledge, each of Vintron's Assets of insurable
nature, to the extent material to the Business, is covered by
insurance policies (the "INSURANCE POLICIES") with insurance
companies of good reputation duly authorised to carry on insurance
business against fire, accident and all other risks ordinarily
insured against as is customary in industry;
21
21
(b) to the Best Knowledge, Vintron has satisfied in full all of its
material obligations under the Insurance Policies, and is not in
material default under any of them nor does any condition exist
with respect to any of the Insurance Policies that, with notice or
lapse of time or both, would constitute any of such default of
Vintron thereunder;
(c) there are no claims made by Vintron or any person on its behalf
under the Insurance Policies, exceeding individually or in the
aggregate DM 50,000 (Deutsche Xxxx fifty thousand), which are
outstanding. To the Best Knowledge, no event has arisen which
might give rise to any material claim under any of the Insurance
Policies.
7.16 INTELLECTUAL PROPERTY RIGHTS. With regard to intellectual property
rights the Seller represents and warrants in the form of an independent
guarantee that
(a) Vintron is the exclusive owner or licensee of the intellectual
property rights until expiration of the licensed rights listed in
SCHEDULE 7.16 as may be amended by Seller within five business
days from the date hereof (the "INTELLECTUAL PROPERTY RIGHTS");
(b) to the Best Knowledge, Vintron does not require any intellectual
property rights other than the Intellectual Property Rights in
order to conduct the Business as currently conducted;
(c) to the Best Knowledge, neither the operation of the Business nor
its products infringe any patents or other intellectual property
rights of any third party;
(d) no claim has been brought against Vintron alleging an infringement
of intellectual property rights as at the date hereof and to the
Best Knowledge no third party has threatened to bring any action
regarding any such alleged infringement.
7.17 REAL PROPERTIES. The real properties as set forth under SCHEDULE 7.17
(the "REAL PROPERTIES") constitute the essential land and premises
leased ["gemietet oder gepachtet"] by Vintron or in respect of which
Vintron has hereditary building rights ["Erbbaurechte"]. Vintron leases
no land or premises with annual leases of more than DM 250,000 (Deutsche
Xxxx two hundred fifty thousand) other than the Real Properties. Vintron
does not own any real properties.
22
22
7.18 LITIGATION. Vintron is not party, neither as claimant nor defendant, to
any litigation, including arbitration proceedings, for the avoidance of
doubt also with regard to product liability claims, of which the amount
in dispute exceeds DM 250,000 (Deutsche Xxxx two hundred fifty
thousand). To the Best Knowledge, there are no governmental
investigations or enquiries or administrative proceedings initiated or
pending against Vintron in which the amount involved exceeds DM 250,000
(Deutsche Xxxx two hundred fifty thousand), and, to the Best Knowledge,
there are no such litigation, investigations, enquiries or
administrative proceedings threatened against Vintron.
7.19 COMPLIANCE WITH LAWS. Vintron is to the Best Knowledge not in violation
of any published law ["Gesetz im materiellen Sinne"], ordinance
["Verfuegung"], regulation ["Verordnung"], or any other requirement of
any court or arbitrator, being material for the Business.
7.20 CONDUCT IN THE ORDINARY COURSE. Since 1 January 2000 until the date
hereof,
(a) the Business of Vintron has been conducted in the ordinary course
and shall continue to be conducted in the ordinary course until
the Closing as a going concern, it being understood that all
actions taken by Vintron for the implementation of the Expansion
Projects shall be deemed to be in the ordinary course of business.
(b) Vintron has not declared any dividends in respect of the Shares
and no such Dividends shall be declared until the Closing, except,
for the avoidance of doubt, payments to be made under the loss and
profit agreement as of 21 December 1998.
7.21 ABSENCE OF MATERIAL ADVERSE CHANGES. Since 1 January 2000 until the date
hereof,
(i) the remunerations payable to the managing directors, officers,
employees, agents or consultants have not been increased outside
the ordinary course of business;
(ii) Vintron has not incurred any material liabilities or entered into
any other material transactions outside the ordinary business,
except for investments connected with the Expansion Projects as
defined in Section 7.9;
23
23
(iii) there has not been any material loss or damage to, or any material
interruption in the use of any of Vintron's material assets;
(iv) Vintron has not made any capital expenditures [("Ausgaben zur
Anschaffung von Anlagevermoegen")] which, in the aggregate since 1
January 2000, exceed DM 5,000,000.00 (Deutsche Xxxx five million),
except for expenditures regarding the Expansion Projects.
(v) there has not been any material adverse change, either
individually or in the aggregate, in the Business of Vintron.
(the events under (i) - (v) hereinafter the "MATERIAL ADVERSE CHANGE").
From the date hereof through the Closing Date, the Seller shall (A)
cause Vintron not to enter into arrangements constituting a Material
Adverse Change within the sense of (i), (ii) or (iv) above without the
prior consent of the Buyer, and (B) promptly inform the Buyer if any of
such Material Adverse Changes within the sense of (iii) or (v) above
occurs from the date hereof through the Closing Date.
The Seller and the Buyer shall be entitled to rescind this Agreement if
a Material Adverse Change occurring from the date hereof through the
Closing Date, without the consent of the Buyer, results in damage or
liabilities of Vintron exceeding DM 12,500,000 (Deutsche Xxxx twelve
million five hundred thousand), unless covered by insurance policies.
7.22 FINDER'S FEES. Vintron has not incurred any liability or brokerage or
finders' fees or agents' commissions or similar payments in connection
with this Agreement.
7.23 TRADE RECEIVABLES. As of the Closing Date 90% of accounts receivable
shall be collectible within (6) six months after the Closing Date
without deductions, unless customary or agreed by Vintron with the
respective customer. The Seller and the Buyer agree that in the event
that the representation and warranty made under this Section 7.23
results in a claim of the Buyer pursuant to the terms and conditions set
forth in Section 9, the Buyer shall cause Vintron to assign accounts
receivables to the extent the Seller is in breach of the representation
set forth in this Section 7.23 to the Seller. The Buyer shall procure
that any payments of such receivables to Vintron after the transfer of
title shall be promptly paid to the Seller. The Buyer shall give,
without undue delay, immediate notice of the transfer of title to the
debtors ["Abtretungsanzeige"].
24
24
7.24 LIABILITIES. Vintron has no liabilities obligations within the sense of
Section 251 HGB ["Haftungsverhaeltnisse"] or any other security
arrangements (e.g. letters of comfort ["Patronatserklaerungen"]) for
liabilities of third parties, except as reflected or reserved against in
the Financial Statements or as stated under the balance sheet of the
Financial Statements or unless otherwise disclosed in SCHEDULE 7.24.
7.25 BEST OF KNOWLEDGE. If a representation and warranty under this Agreement
is made to the best of knowledge (the "BEST KNOWLEDGE"), such Best
Knowledge shall be present if the managing directors of Celanese and
Celanese Chemicals Europe GmbH and Vintron should have obtained
knowledge about the underlying facts and circumstances giving rise to a
breach of the representation or guarantee applying the standard of care
of a prudent businessman pursuant to Section 43 German Limited Liability
Companies Act ["GmbHG"], provided, however, such representation and
warranty shall not imply an obligation of such managing directors and
key employees to make any special inquiry or investigation merely by
reason of the transactions contemplated by this Agreement.
SECTION 8
REPRESENTATIONS AND WARRANTIES OF THE BUYER
8.1 INCORPORATION, CORPORATE POWER. The Buyer represents and warrants to the
Seller by way of independent guarantee ["selbstaendiges
Garantieversprechen"] that, as of the date hereof and as of the Closing
Date, the Buyer is a limited partnership duly established under the laws
of Germany, having all requisite corporate power and authority to
execute, deliver and perform its obligations under the Agreement and to
consummate the transactions contemplated hereby, and CM 058 GmbH as its
general partner is a company duly incorporated and registered under the
laws of Germany as a limited liability company ["GmbH"] in the local
court in Munich under HRB 130662.
8.2 CORPORATE ACTION. The Buyer represents and warrants to the Seller by way
of independent guarantee ["selbstaendiges Garantieversprechen"] that the
Buyer has taken all necessary corporate action and obtained all
necessary consents to authorise (i) the execution and delivery of the
Agreement and (ii) the performance of the Agreement and the consummation
of the transaction contemplated thereby.
8.3 FINANCING AND CARTEL APPROVAL. The Buyer represents and warrants as of
the date hereof and as of the Closing Date to the Seller by way of
independent guarantee
25
25
["selbstaendiges Garantieversprechen"] that, to its best knowledge, there
are no existing facts or circumstances which
(i) might affect its potential obligation to repay the Additional
Payment I as set forth in Section 5.4, or the Additional Payment
II as set forth in Section 5.3 and 5.4, or
(ii) on the side of the Buyer and the Buyer's Affiliates are of
relevance from a cartel law point of view and which might prevent
clearance by any cartel authorities referred to in Section 16. The
Seller is aware that the Buyer holds an interest in Vestolit equal
to approx. 10% of the total share capital of the company.
SECTION 9
REMEDIES
9.1 REINSTATEMENT. Unless otherwise provided in this Agreement, if and to
the extent that representations and warranties of the Seller are
incorrect and result in a claim of the Buyer under Section 7, the Seller
shall
(a) put Vintron in a position as if such incorrect representations and
warranties were true ["Naturalrestitution"] or, at the Seller's
option,
(b) pay the amount in cash to the Buyer or Vintron which corresponds
to the loss of Vintron in respect of the matter giving rise to the
claim.
If the Seller fails to make the incorrect representations and warranties
true within a period of (2) two months following receipt of written
notice of such claim pursuant to (a) above, at the Buyer's option, the
Seller shall effect payment of the amount in cash which corresponds to
the damage (within the sense of Section 249 Sentence 2 BGB, unless
otherwise set forth in Section 9.4) of Vintron either to Vintron or to
the Buyer. Sections 377, 378 HGB shall not apply. In the event of a
violation of Section 7.9, the Seller shall, in deviation from this
Section 9.1, be obliged to grant a loan to Vintron equal to the amount
by which the net interest bearing financial debts have been incurred in
violation of Section 7.9. The loan shall be repayable without interest
(5) five business days after the amount of Vintron's net interest
bearing financial debts meets, or falls short of, the amount described
in Section 7.9. The Buyer shall cause Vintron to use all reasonable
efforts to reduce the interest bearing
26
26
debts minus debts incurred up until the Closing Date for the Expansion
Projects to or below the amount of DM 30,000,000 (Deutsche Xxxx thirty
million) within the ordinary course of business.
9.2 BUYER'S KNOWLEDGE. The Seller shall not be liable to the Buyer for any
claims brought by the Buyer in respect of any alleged breach of a
representation or warranty made by the Seller herein, if the Buyer or
its advisors at the date hereof had knowledge of such breach within the
sense of Section 460 of the German Civil Code ["BGB"]. The Buyer
confirms that it and its advisers have thoroughly examined the legal,
tax and financial information relating to Vintron ("DUE DILIGENCE"). The
Buyer and/or persons appointed by the Buyer furthermore had the
opportunity to have detailed discussions with members of the management
board of the Seller and Vintron. The restrictions pursuant to Section
460 BGB shall not apply with respect to the representations given in
Section 7.3 regarding InfraServ.
9.3 NO FURTHER REPRESENTATIONS AND WARRANTIES. The Buyer may only bring or
assert claims in respect of representations and warranties which are
expressly referred to and stated in Section 7 as being made by the
Seller and no further statements, representations, warranties or
guarantees are made, or deemed to be made, by the Seller, other than
those expressly and conclusively set forth in Section 7. In particular,
the Buyer shall not be entitled to rely on the prospective development
of Vintron, including, but not limited to, business forecasts, expected
earnings, budgetary accounting and the like (including the statements
made in the Business Plan or any other business plans or budgets of
Vintron) prepared in regard to Vintron.
9.4 DETERMINATION OF DAMAGES; CONSEQUENTIAL DAMAGES. The Seller shall not be
liable for any reputation damages. Any damage shall be calculated
strictly on Vintron's level and shall, if applicable, be determined by
applying a discount factor on a discounted cash flow basis, calculated
on the basis of the 12-months-EURIBOR plus 250 basis points
["Basispunkte"], not taking into consideration circumstances and/or
considerations of the Buyer, such as (but not limited to) the multiple
which the Buyer applied when valuating the Business. For the avoidance
of doubt, it is clarified that the Buyer shall in no event be entitled
to bring or assert any claim and the Seller shall not be held liable for
any consequential damages ["mittelbare Schaeden" bzw. "Folgeschaeden"] of
the Buyer, in particular (but not limited to) loss of profit by the
Buyer.
27
27
9.5 NO ENVIRONMENTAL WARRANTIES. Any environmental pollution, i.e. pollution
or other strains of soil, groundwater, air surface, facilities or
buildings shall solely and exclusively be subject of the terms and
conditions of the indemnification clause as set forth in Section 10.1.
The Seller shall not be liable for (i) Environmental Pollution or (ii)
other claims relating to pollution or other strains of soil,
groundwater, soil air, surface water, facilities or buildings of
whatever nature and based on whatever legal grounds, and neither of the
representations or warranties made in Section 7 are made, or deemed to
be made, with regard to environmental pollution, unless provided for
otherwise in Section 10.1.
9.6 NO DOUBLE RECOVERY. The Buyer shall not be entitled to bring or assert
any claims pursuant to Section 9 if and to the extent (i) the annual
accounts contain a provision for the matter violating the respective
representation and warranty, if the amount of loss, damage, expense or
liability incurred is less than the amount contained in such specific
provision or (ii) recovery, payment or compensation for a specific
matter violating the respective representation and warranty has already
been obtained by the Buyer or Vintron in whatever manner and from
whatever source, so as to avoid the Buyer receiving double recovery for
such specific matter. For the avoidance of doubt it is further clarified
that Section 254 of the German Civil Code shall be applicable.
9.7 EXCLUSIVE REMEDIES. The rights of the Buyer pursuant to Section 9 shall
be the sole and exclusive remedies for the breach of any of the
provisions in Section 7, any other claim or right, whether for damages,
reduction of price ["Minderung"] or rescission ["Wandelung",
"Ruecktritt"], prior to or after the Closing, for culpa in contrahendo,
clausula rebus sic stantibus or on any other legal basis shall be - to
the extent legally permissible - excluded, except for claims based upon
wilful misconduct ["Vorsatz oder Arglist"].
9.8 RESCISSION. If the clearance by the European Commission or the German
Federal Cartel Office, as the case may be ("CARTEL APPROVAL"), has not
been granted within (6) six months after the date hereof, then the
Seller or the Buyer may rescind this Agreement. In such case, the
Parties will carry their respective costs incurred in connection with
this Agreement individually, waiving any claims they may have hereunder
or which they may have become entitled to in the course of negotiations
leading to the signing hereof against one another to the extent that the
other Party has performed and complied in all material respects with
their obligations under the Agreement. The Seller or the Buyer shall
further be entitled to rescind this Agreement if any of the other
conditions precedent pursuant to Section 3 are not
28
28
fulfilled or waived (x) within (3) three months after the date hereof or
(y) within 10 (ten) business days after the Cartel Approval has been
granted, whichever occurs later.
SECTION 10
INDEMNIFICATION
10.1 ENVIRONMENTAL. In respect of claims resulting from the pollution of
soil, soil air ("Bodenluft"), groundwater, surface water, buildings or
facilities, which cause adverse changes of the condition of the soil
resulting in dangers, substantial disadvantages or substantial nuisance
for the individual or the public ["Schaedliche Bodenveraenderung" i.S.d.
Section 2 BBodSchG] or any other dangers for the individual or the
public ["Gefahren fuer den Einzelnen oder die Allgemeinheit"] pursuant to
other applicable German laws (the "ENVIRONMENTAL POLLUTION") including
claims of any Governmental authority or of InfraServ, or any third
party, the Buyer or Vintron, as the case may be, shall be indemnified in
accordance with the terms and conditions provided under this Section
10.1 only.
"ENVIRONMENTAL LIABILITIES" shall be all costs (including third party
claims) incurred in connection with the investigation, elimination or
remediation of Environmental Pollution in order to comply with (i) final
["bestandskraeftig"] or immediately enforceable ["sofort vollziehbar"]
administrative acts ["Verwaltungsakte"], (ii) final ["rechtskraeftig"]
court decisions, or (iii) agreements entered into, in order to avoid
acts and decisions as defined in (i) and (ii), with the consent of the
Seller, with administrative authorities, or neighbours, (iv) the need to
remediate an imminent danger for the well-being or health ["Gefahr im
Verzug fuer Xxxx xxxx Leben"], or, to the extent that an omission of
taking immediate action would result in a criminal offence, groundwater
["Grundwasser"], in each case if and to the extent that such
Environmental Liabilities are based on the laws and regulations
applicable or formally published by the relevant authorities as of the
Closing Date. Vintron or the Buyer, as the case may be, shall be
indemnified and held harmless from the Environmental Liabilities in
accordance with the provisions following hereunder by the Seller:
The indemnification by the Seller includes, but is not limited to,
claims brought by InfraServ pursuant to paragraph 6 of the partnership
agreement of InfraServ in
29
29
respect of additional cash contributions ["Nachschuesse"] as may be
requested to be assumed by Vintron, as set forth in lit. (c) of this
Section 10.1
In all cases of pollution or other strains of soil air, groundwater,
air, surface water, facilities or buildings occurred prior to the
Closing Date, the Buyer and Vintron shall be authorised to raise claims
under, and in accordance with, the terms and conditions of this Section
10.1 only. Section 7.19 remains unaffected in the event a violation of
Section 7.19 results in the occurrence of such pollution and/or strains
after the Closing Date. Subject to the terms and conditions as set forth
in this Section 10.1 the Seller shall indemnify and hold harmless
Vintron or the Buyer, as the case may be, as follows:
(a) SUBSTANCES NO LONGER IN USE. If and to the extent the
Environmental Pollution is caused by substances which on or after
the Closing Date are not used by Vintron and unless the
Environmental Pollution is caused after the Closing Date, the
Seller shall indemnify and hold harmless Vintron for any
Environmental Liabilities which become due
(i) in the period from the Closing Date through 31 December 2009
by 100%,
(ii) in the period from 1 January 2010 through 31 December 2010
by 80%,
(iii) in the period from 1 January 2011 through 31 December 2011
by 60%,
(iv) in the period from 1 January 2012 through 31 December 2012
by 40%, and
(v) in the period from 1 January 2013 through 31 December 2013
by 20%.
Any Environmental Liabilities which become due after 31 December
2013 shall be assumed by Vintron or the Buyer, and Vintron and the
Buyer shall indemnify and hold harmless the Seller from any such
Environmental Liabilities, and any Environmental Liabilities not
to be borne by the Seller pursuant to the sliding scale set forth
above, asserted against them. For the purpose of allocating the
Environmental Liabilities to the respective time periods set forth
in the above sliding scale any Environmental Liabilities become
due
- in case of Environmental Liabilities in the meaning of
Section 10.1 paragraph 2 (i) and (ii) at the time when the
Buyer has notified the Seller
30
30
in writing and in substantiated form of the nature and scope
of the respective Environmental Pollution, provided,
however, that the administrative act ("Verwaltungsakt") is
issued within (8) eight months (taking into account any
possible negotiation period under the next recital)
following such notification, and provided further that the
Buyer and Vintron have fully complied with their obligations
pursuant to (i) (Further Condition) (iv) below, otherwise at
the time when the administrative act ["Verwaltungsakt"] is
issued;
- in case of Environmental Liabilities in the meaning of
Section 10.1 paragraph 2 (iii) at the time when the Buyer
has notified the Seller in writing and in substantiated form
of the nature and scope of the respective Environmental
Pollution, provided, however, that any agreement between
Buyer and Seller on an indemnification is achieved within
(4) four months following such notification;
- in case of Environmental Liabilities in the meaning of
Section 10.1 paragraph 2 (iv) at the time when the Buyer has
notified the Seller in writing and in substantiated form of
the nature and scope of the respective Environmental
Pollution, provided, however, that any remediation has been
commenced within (4) four months following such
notification.
(b) SUBSTANCES STILL IN USE. If and to the extent the Environmental
Pollution is caused by substances which at the Closing Date are
still in use by Vintron, and provided that the Environmental
Pollution is caused prior to the Closing Date, the Seller shall
indemnify and hold harmless Vintron or the Buyer for any
Environmental Liabilities which become due
(i) in the period from the day hereafter through 31 December
2001 by 90%,
(ii) in the period from 1 January 2002 through 31 December 2002
by 80%,
(iii) in the period from 1 January 2003 through 31 December 2003
by 70%,
(iv) in the period from 1 January 2004 through 31 December 2004
by 60%,
(v) in the period from 1 January 2005 through 31 December 2005
by 50%,
(vi) in the period from 1 January 2006 through 31 December 2006
by 40%,
31
31
(vii) in the period from 1 January 2007 through 31 December 2007
by 30%,
(viii) in the period from 1 January 2008 through 31 December 2008
by 20%,
(ix) in the period from 1 January 2009 through 31 December 2009
by 10%.
Any Environmental Liabilities which become due after 31 December
2009 shall be assumed by Vintron or the Buyer, and Vintron and the
Buyer shall indemnify and hold harmless Seller from any such
Environmental Liabilities, and any Environmental Liabilities not
to be borne by the Seller pursuant to the sliding scale set forth
above, asserted against them.
For the purpose of allocating the Environmental Liabilities to the
respective time periods set forth in the above sliding scale the
last sentence of Section 10. 1 (a) above shall apply.
(c) Notwithstanding the provisions under (a) and (b), in the event
that Vintron, as a limited partner of InfraServ, is requested to
assume additional cash contributions ["Nachschuesse"] pursuant to
Section 6 of the Partnership Agreement ["Gesellschaftsvertrag"] of
InfraServ for Environmental Pollution not directly attributable to
the Business, which become due as from 1 January 2010, and unless
the Environmental Pollution is caused after the Closing Date, the
Seller shall indemnify and hold Vintron harmless from
(i) contributions which become due in the period from the
Closing Date through 31 December 2009 by 100%
(ii) contributions which become due in the period from 1 January
2010 through 31 December 2010 by 80%,
(iii) contributions which become due in the period from 1 January
2011 through 31 December 2011 by 60%,
(iv) contributions which become due in the period from 1 January
2012 through 31 December 2012 by 40%,
(v) contributions which become due in the period from 1 January
2013 through 31 December 2013 by 20%.
32
32
There shall be no obligation of the Seller to indemnify Vintron
for, or hold Vintron harmless from, any additional cash
contributions which become due after 31 December 2013, and Vintron
and the Buyer shall indemnify and hold harmless the Seller from
any such cash contributions, and any cash contributions not to be
borne by the Seller pursuant to the sliding scale set forth above,
requested from the Seller.
(d) PROCEEDINGS AND RESTRICTIONS. Vintron or the Buyer, as the case
may be, shall (i) inform the Seller promptly (in any case in good
time prior to expiration of any appeal periods) of the assertion
of any claim or any demand, action, proceeding or judgment related
to or in connection with Environmental Pollution and the
Environmental Liabilities, (ii) take any reasonably necessary
action in the defence of such claim, action, proceeding or
judgment, if instructed by the Seller, (iii) fully co-operate with
the Seller in the defence or settlement in respect of the
Environmental Liabilities, (iv) grant advantage to the Seller to
participate in the defence of any claim, suit action or
proceeding, and (v) make no admission to the claimant or
settlements without its prior written approval. In particular, the
Buyer undertakes to inform, and shall cause that Vintron
undertakes to inform, the Seller without undue delay of any
environmental pollution which has been notified to the relevant
Governmental authorities. Furthermore, the Buyer shall inform and
consult or cause Vintron to inform and consult with Seller before
corrective actions with regard to environmental pollution,
including investigation and transportation, storage and treatment
of polluted soil, water or buildings, are taken. If the Buyer or
Vintron are obliged to act immediately in a case of imminent
danger ["Gefahr in Verzug"] the Buyer or Vintron shall be obliged
to act with the care of a prudent businessman before informing and
consulting with the Seller. The Seller shall be given the
opportunity to comment on, participate in and review any reports
on or relevant investigations, orders or other measures which may
with a reasonable likelihood give rise to Environmental
Liabilities, and the Buyer shall ensure that the Seller receives
without undue delay copies of all such documents.
(e) ARBITRATOR. In the case of Section 10.1 (b) the following shall
apply:
If the Seller and the Buyer cannot agree as to whether or to what
extent the Environmental Pollution occurred prior or after the
Closing Date, the Seller and the Buyer shall jointly appoint an
independent environmental expert (the
33
33
"Expert"). If the parties cannot, within 6 weeks after the Seller
receiving notice of the Environmental Pollution by the Buyer,
agree on the Expert, a neutral and reputable Expert shall be
determined by the president of the Industrie- und Handelskammer
Frankfurt. The costs of the Expert and the determination of the
Expert shall be borne by the Parties to the extent the Expert's
determination is detrimental to the respective Parties.
The Expert shall finally determine whether the Environmental
Pollution occurred prior of after the Closing Date. If the Expert
(A) determines that the Environmental Pollution occurred prior
to the Closing Date, then the sliding scale referred to
above under 10.1 (b) shall apply;
(B) determines, that the Environmental Pollution occurred on or
after the Closing Date, then the Seller shall not be liable
at all;
(C) cannot determine whether the Environmental Pollution
occurred prior or after the Closing Date, then the sliding
scale referred to above under 10.1 (b) shall apply.
The Expert shall base his determination on a thorough
investigation of the pollution, its circumstances and the safety
and environmental protection standards applied by Vintron. The
Buyer shall procure that Vintron will provide the Expert with all
information which he deems necessary for his determination and
grant access to Vintron's sites as may be required. If the Expert
states that he cannot make a determination because Vintron has not
complied with its obligations set forth above, then the
Environmental Pollution shall be deemed to have occurred after the
Closing Date.
(f) DE MINIMIS THRESHOLD. The Seller shall only be liable for
indemnification under this Section if, and solely to the extent
that, the individual Environmental Liability exceeds DM 100,000
(Deutsche Xxxx one hundred thousand) and the aggregate
Environmental Liability in each calendar year exceeds DM 500,000
(Deutsche Xxxx five hundred thousand).
(g) INDEMNIFICATION CAPS. There is no special cap of indemnification
under this Section 10.1. Instead the Total Seller Liability Amount
as defined in Section 11.2 also applies to the indemnification
under this Section 10.1.
34
34
(h) NO DOUBLE RECOVERY. Section 9.7 shall apply mutatis mutandis,
provided that in this respect, if any insurance coverage for
Environmental Liabilities, if existing, should have been reduced
after the Closing Date, such amounts shall be taken into account
to the favour of the Seller, which would have been recovered under
the insurance policies in force as of the Closing Date, unless
such insurance coverage cannot be obtained by an insurance
company, or only be obtained at conditions which are substantially
unfavourable compared to the current conditions.
(i) FURTHER CONDITIONS. The obligation of the Seller to indemnify
Vintron or the Buyer, as the case may be, pursuant to this Section
10.1 does not apply to the extent the Environmental Liabilities
have, directly or indirectly, been caused or increased by the fact
that either Vintron or the Buyer or any other person conducting
the Business or other businesses at the respective sites after the
Closing Date
(i) has not complied with any applicable laws, regulations,
orders, notices including applicable standards for security
and environmental protection (provided that such
non-compliance is not caused by a non-compliance by the
Seller or Vintron prior to the Closing Date which could not
be remedied by Vintron or the Buyer within reasonable time);
or
(ii) failed to mitigate damages pursuant to Section 254 German
Civil Code; or
(iii) changes the use of the sites, in particular non-temporarily
(exceeding a period of (6) six months) partly or completely
ceases plant operations, or parts thereof, of the Business
of Vintron; or
(iv) has disclosed to any governmental authority ["Behoerde"]or
any private unaffiliated third party (excluding advisors and
agents of Vintron and/or the Buyer), directly or indirectly,
environmental pollution, or taken any other exploratory or
investigative measures, except where such disclosure or
measure was required to be made by a final
["bestandskraeftig"] or immediately enforceable ["sofort
vollziehbar"] administrative act ["Verwaltungsakt"] or
unless such disclosure was required by law.
10.2 TAX INDEMNIFICATION. With regard to any taxes and ancillary taxes
["Steuern und steuerliche Nebenleistungen"] within the sense of Section
3 AO ["Abgabenord-
35
35
nung"] and including social security contributions (the "TAXES")
concerning the period prior to the Effective Date the Parties agree as
follows:
(a) TAX ASSESSMENTS. Concerning the period prior to the Effective Date
the Parties shall co-operate with regard to any Taxes. The Buyer
shall notify the Seller promptly about any order announcing a Tax
or relevant other audit that may partially or fully extend any
Taxes relating to Vintron for any taxable periods
["Veranlagungszeitraeume"] ending before the Effective Date (the
"TAXABLE PERIOD"). Copies of such order shall promptly be
forwarded to the Seller by registered mail ["Einschreiben mit
Rueckschein"]. The Seller shall be fully authorised to participate
in the negotiations with tax and other authorities concerning such
Taxes regarding the Taxable Period. The Seller is entitled to lead
such negotiations and the Buyer will keep the Seller closely
informed about any audits or investigations of the relevant
authorities in an appropriate manner. The Seller shall be
authorised to appeal at its own cost in Vintron's name against any
Tax or other assessment notice concerning the Taxable Period.
(b) TAX INDEMNIFICATION. Upon receipt of the relevant Tax assessment
notice by either the Buyer or Vintron, the Seller shall be liable
for the payment of, and shall indemnify and hold harmless the
Buyer or Vintron, as the case may be, from all Taxes assessed
against Vintron by any tax authority for any business year within
the Taxable Period which exceed reserves and provisions for Taxes
for the specific business years as reflected in the financial
statements of Vintron (the "SURPLUS TAXES"). The Buyer shall vice
versa procure that Vintron shall compensate the Seller for all
reduced Taxes ["Mindersteuern"] concerning the Taxable Period
which fall short of the reserves and provisions for Taxes for the
Taxable Period as reflected in the financial statements (the
"Reduced Taxes").
(c) DISPUTES. In the event of any disagreements or disputes arising in
respect of, or in connection with, the determination of the
Surplus Taxes or the Reduced Taxes, the Independent Auditor shall
on request of either of the Parties determine the respective
Surplus Taxes and/or Reduced Taxes in a binding manner. The costs
incurred by the assignment of the Independent Auditor shall be
borne by the Parties in proportion the determination being
detrimental to the respective Party's interest.
36
36
10.3 VCM SUPPLY AGREEMENT. Seller guarantees that Vintron will be provided
with sufficient VCM up to 155 kt from third parties or from Seller in
order to satisfy its obligations under the VC-Liefervertrag as described
in Section 3.1 a) (until 31 December 2001) by undertaking to compensate
Vintron as follows: (i) In the event of a lack of supply, the Seller has
to pay a penalty to Vintron (payable to Vinnolit) equal to the lost
contribution margin of Vinnolit which is fixed between the parties at an
amount of 450 DM/t VCM (in aggregate the "LOST CONTRIBUTION MARGINS");
and (ii) in the event that Vintron incurs losses resulting from the VCM
procurement and consecutive sale pursuant to the VC-Liefervertrag at
prices as determined pursuant to the VC-Liefervertrag described in
Section 3.1 a) ( the "VCM LOSSES"), Seller shall compensate the VCM
Losses up to a maximum amount of DM 450 DM/t VCM for each single
purchase transaction, provided, however, that in each of the cases (i)
and (ii) payments by Seller shall have to be made only to the extent the
sum of the Lost Contribution Margins and the VCM Losses exceeds in
aggregate DM 20.4 million as stated in the business plan. Buyer shall
procure that Vintron sources VCM only after consultation with, and
approval by, Seller or, at Seller's option, Celanese AG & Co.
Procurement Olefin KG.
10.4 SHUT DOWN LIABILITIES. Seller submitted to Buyer documentation according
to which Vintron as part of the contribution of the chlorine
electrolysis products business Xxxxxx-Knapsack to Vintron by Seller might
have assumed indemnification obligations of Seller towards the mono
chlorine acetic acid business currently controlled by Clariant GmbH in
the event of a shut down of the chlorine-electrolysis plant in
Xxxxxx-Knapsack ("Celanese Obligation").
Seller shall be liable for the payment of and shall indemnify and hold
harmless the Buyer and Vintron for any and all liabilities, costs and
expenses resulting from the assumption of the Celanese Obligations.
SECTION 11
LIMITATION OF LIABILITIES
11.1 DE MINIMIS THRESHOLDS. No claim may be brought by the Buyer in regard to
this Agreement unless (i) an individual claim exceeds DM 250,000
(Deutsche Xxxx two hundred fifty thousand) and (ii) the aggregate claims
exceed DM 1,000,000 (Deutsche Xxxx one million) ("De minimis
Thresholds"). In the event that the Buyer's claims exceed the De minimis
Thresholds, only the amount of the claims
37
37
actually exceeding the De minimis Thresholds may be recovered by the
Buyer ["Freibetraege"]. The foregoing De minimis Threshold shall not
apply to any claims regarding defects of ownership of the Shares
pursuant to Section 7.3 and 7.4.
11.2 TOTAL CAP ON CLAIMS. The total liability the Seller may become subject
to under this Agreement (for the avoidance of doubt including, but not
limited to, any claims under Section 10.1) is limited to a total
aggregate amount of DM 70,000,000 (Deutsche Xxxx seventy million) (the
"TOTAL SELLER LIABILITY AMOUNT"). This shall neither apply to any
defects of ownership of the Shares pursuant to Section 7.3 and 7.4, nor
to the tax indemnification pursuant to Section 10.2. This shall also not
apply to the indemnification obligations under Section 10.4 (Shut Down
Liabilities).
SECTION 12
SURVIVAL OF CLAIMS AND REMEDIES
12.1 EXPIRATION PERIOD. Except as otherwise provided for in this Agreement,
all representations and warranties made in Section 7 shall terminate and
expire ["verjaehren"] (18) eighteen months after the date hereof.
12.2 DEFECTS IN OWNERSHIP OF SHARES. Any claims brought in respect of
representations and warranties regarding defects in the ownership of the
Shares as set forth in Section 7.3 or 7.4 shall terminate and expire (5)
five years after the date hereof.
12.3 ENVIRONMENTAL INDEMNIFICATION. Any claims of the Buyer brought in
respect of the indemnification from Environmental Liabilities pursuant
to Section 10.1 shall terminate and expire (6) six months after the
Environmental Liabilities become due within the meaning of the last
sentence of Section 10.1.a) and 10.1 b), respectively.
12.4 TAX INDEMNIFICATION. Any claims of the Buyer under Section 10.2 shall
terminate and expire (6) six months after either the Buyer or Vintron,
as the case may be, has received the final and binding tax assessment
(including adjustment assessments) by the taxing authority.
12.5 INTERRUPTION. Upon receipt of written notice on a specific claim in
writing by the Buyer vis-a-vis the Seller, which details the alleged
basis for such claim shall mean that the limitation period shall be
interrupted ["unterbrochen"] with respect to such claims, always
provided that the Buyer takes legal action ["Klage erheben"] within (3)
three months after such notification.
38
38
SECTION 13
[intentionally left blank]
SECTION 14
COVENANT NOT TO COMPETE
14.1 COVENANT NOT TO COMPETE. For a term of (2) two years after the date
hereof, the Seller shall not, unless otherwise provided in Section 14.2
below, (i) engage in or carry out any new business activities which
represent competition to the Business nor (ii) acquire a controlling
interest of more than 50% in the equity or in the voting rights, neither
directly nor indirectly, in entities which compete with the Business, in
each case on the relevant product and geographic markets on which
Vintron has been active at the date hereof.
14.2 EXEMPTIONS. The following activities are exempt from the restrictions
set out in Section 14.1:
(a) the existing business activities of the Seller as presently
conducted;
(b) acquiring an controlling interest in an entity, or any assets
thereof, which is not in the first place and not mainly engaged in
activities competing with the Business. To the extent legally
possible, the Seller shall use its best efforts that in the event
of a sale of the PVC part of the acquired business such PVC part
of the acquired business shall be offered to the Buyer prior to an
offer to third parties;
(c) acquiring all or part of the assets of the chlorine chemicals
business at the facilities in Frankfurt am Main-Hoechst, such
business having been sold by Seller to LII Europe GmbH;
(d) any captive use of the Seller, i.e. production which is not sold
to third parties outside the group of affiliated enterprises.
SECTION 15
FURTHER COVENANTS OF THE BUYER
RELEASE FROM COLLATERAL. The Buyer shall procure that the Seller and the
Seller's Affiliates, as the case may be, are released from any collateral not
exceeding DM
39
39
1,000,000 (Deutsche Xxxx one million), provided by them to the benefit of
Vintron and shall, on the Seller's first demand, indemnify the Seller and the
Affiliates, as the case may be, in respect of any and all claims resulting
from such collateral.
SECTION 16
CARTEL CLEARANCE, OTHER COVENANTS OF THE PARTIES
16.1 CO-OPERATION REGARDING CARTEL AUTHORITIES. The Parties agree to
co-operate fully with a view to obtaining unconditional clearance by the
German Federal Cartel Office and/or the European Commission, whichever
is required for the consummation of the transactions contemplated
hereby, without delay. The Buyer's counsel shall without undue delay,
however, if possible, not later than (10) ten working days after the
date hereof, prepare all files with regard to the application to the
relevant cartel authorities, which shall be reviewed by the Seller. The
charges of the respective cartel authorities are to be borne by the
Buyer. The cost of the Seller's counsel are to be borne by the Seller
and the cost of the Buyer's counsel are to be borne by the Buyer.
16.2 PARTIES' EFFORTS TO CLOSE. The Seller and the Buyer undertake to use all
reasonable efforts to ensure fulfilment and compliance with all the
conditions and obligations as set forth in this Agreement and procure
any necessary official authorisations as may be required to consummate
the transactions contemplated hereby as soon as practicable as of the
date hereof so as to secure Closing and full completion of all the
transactions contemplated hereby at the earliest date possible.
SECTION 17
GENERAL PROVISIONS
17.1 NOTICES. All notices, requests, claims, demands and other communications
hereunder shall be in writing and in the German or the English language
and shall be given or made (and shall be deemed to have been duly given
or made upon receipt) by delivery in person, by telefax or by registered
mail ["Einschreiben mit Rueckschein"] to the respective Parties at the
following addresses:
(a) if to the Seller:
Celanese Chemicals Europe GmbH
x/x Xxxxxxxx XX
00
00
Xxxxxxxxxxx Xxx. 000
00000 Kronberg
Telecopy: +49/69 305 82731
Attention: General Counsel Celanese AG
with a copy to
Hengeler Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxxxxxx 0
00000 Xxxxxxxxxxx
Telecopy: +49/211-132641
Attention: Xx. Xxxxxx Xxxxxx
(b) if to the Buyer:
Xxxxxxxx XxxX & Xx. XX
Xxxx-Xxxxx-Xxxx 00
00000 Ismaning
Telecopy: +49/89 69103-119
Attention: Managing Director ["Geschaeftsfuehrer"]
with copies to:
Advent International Corporation
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
XXX
Telecopy: +1/617951-0571
Attention: Xxx. Xxxxx Xxxxxxxx and Xx. Xxx Xxxxx
and to
Xxxxx & XxXxxxxx Xxxxxx Amereller Xxxxx
Xxxxxxxxxxx. 00-00
00000 Xxxxxxxxx xx Xxxx
Telecopy: +49/6929908-108
Attention: Xx. Xxxxx Xxxxxxxx and Xx. Xxxxxxxxx Xxxxxxxxx
41
41
A change in the person or address of the aforementioned addressees shall
become effective for the other Party only (1) one month after having
been informed on such change by written notice.
17.2 PUBLIC ANNOUNCEMENTS. No Party to this Agreement shall make, or cause to
be made, any press releases or public announcements in respect of this
Agreement or the transactions contemplated hereby or otherwise
communicate with any news media without prior notification to, and
consultation with, the other Party, and the Parties shall co-operate as
to the timing and contents of any such announcement.
17.3 HEADINGS. The descriptive headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
17.4 GERMAN TERMS. The terms set forth in this Agreement in German language
shall take precedence over corresponding English terminology, if any, in
interpreting the contents of the pertinent contractual provision and be
interpreted in accordance with the meaning of that German term under
German law and as would be customary in German language contracts.
17.5 COSTS. Except as otherwise specified in the Agreement, all costs and
expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with
the Agreement and the transactions contemplated hereunder shall be paid
by the Party incurring such costs and expenses. Any and all notary
public fees and costs and expenses with regard to the execution and
performance of the Agreement and the transactions contemplated hereunder
shall be borne by the Buyer.
17.6 ENTIRE AGREEMENT. The Agreement together with any documents referred to
herein or incidental to the Agreement by the parties constitutes the
entire Agreement between the parties hereto and replaces and supersedes
any agreements or arrangements made previously in regard to the subject
matter hereof.
17.7 AMENDMENTS. Any amendments, authorisations or variations of the
Agreement, including this Section 17.7, require written form (unless
notarisation is required) in order to be valid and effective.
17.8 SEVERABILITY. If any term or other provision of the Agreement is
invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other conditions
42
42
and provisions of the Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced,
the Parties hereto shall negotiate in good faith to modify the Agreement
so as to effect the original intent of the Parties as closely as
possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the
greatest extent possible.
17.9 GOVERNING LAW. PLACE OF VENUE. The validity, performance and enforcement
of the Agreement shall be governed by German law. Exclusive place of
venue shall be Frankfurt am Main.
(continued on next page)
43
IN WITNESS THEREOF this Notarial Deed including the Schedules hereto
with the exception of certain lists of items, titles, rights and
obligations contained in Schedules 7.16 and 7.17, in respect of which
the persons appearing waived the right to have them read aloud and which
instead have been presented to the persons appearing, were acknowledged,
approved and signed on each page by the persons appearing,
has been read aloud to the persons appearing and was confirmed and approved by
the persons appearing. The persons appearing then signed this Deed. All this
was done at the day herebelow written in the presence of me, the Notary
Public, who also signed this Deed and affixed my official Seal.
Basel, this 19th (nineteenth) and 20th (twentieth) day of May 2000 (two
thousand)
