DATED 6 JULY 2000
(1) SAFETY-KLEEN EUROPE LIMITED
- and -
(2) SK EUROPE, INC.
- and -
(3) SAFETY-KLEEN CORP.
and -
(4) THE ELECTRA SUBSCRIBERS
and -
(5) ELECTRA EUROPEAN FUND LP
--------------------------------------
AGREEMENT
for the sale and purchase of shares and
loan stock held by SK Europe, Inc. in
Safety-Kleen Europe Limited
--------------------------------------
ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 000-0000 00 00
Fax: 000-0000 0000
BJH/E450.00023/709397.1
THIS AGREEMENT is made on the 6th day of July 2000
BETWEEN:-
(1) SAFETY-KLEEN EUROPE LIMITED whose registered office is at 000 Xxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxx XX0 0XX (the "COMPANY");
(2) SK EUROPE, INC. whose registered office is at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxx Xxxxxxxx, 00000, Xxxxxx Xxxxxx of America ("SK
EUROPE");
(3) SAFETY-KLEEN CORP. whose registered office is 1301 Gervais Street,
Columbia, South Carolina 29201, United States of America ("SK CORP.");
(4) THE ELECTRA SUBSCRIBERS whose names and addresses are set out in
schedule 3 ("ELECTRA SUBSCRIBERS"); and
(5) ELECTRA EUROPEAN FUND LP whose registered office is at XX Xxx 000, 00 -
00 Xxxxxxxx Road, St Xxxxx Port, Guernsey, Channel Islands GYI 3ZD
("EEF").
WHEREAS
(A) On 9 June 2000, SK Corp. and certain of its direct and indirect
subsidiaries, including SK Europe, each filed a voluntary petition in
the United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court") initiating cases (the "Cases") under chapter 11 of
title I 1, United States Code (the "Bankruptcy Code") and have
continued in the possession of their assets and in the management of
their businesses pursuant to Sections 1107 and 1108 of the Bankruptcy
Code.
(B) SK Europe has agreed to sell the Shares and the Loan Stock it holds in
the Company to EEF on the terms set out in this agreement.
(C) On and with effect from Completion, SK Europe will cease to be a party
to the Subscription Agreement (as defined below) and SK Europe, SK
Corp. and their respective affiliates shall be released from certain
obligations with respect to the Company pursuant to the Release Deed
(as defined below).
(D) SK Corp. and SK Europe intend that the transactions contemplated by
this agreement shall constitute a sale in accordance with Sections
363(b) and (f) of the Bankruptcy Code (the "Sale") and consummation of
the transactions contemplated by this agreement shall be subject, among
other things, to the entry by the Bankruptcy Court of an order, in form
and substance reasonably acceptable to EEF, authorizing the sale.
THE PARTIES AGREE AS FOLLOWS:-
I INTERPRETATION
1.1 In this agreement the following words and expressions and abbreviations
have the following meanings, unless the context otherwise requires:-
"BUSINESS DAY" means a day (excluding Saturdays and Sundays) on which
banks generally are open in London and New York, NY for the transaction
of normal banking business;
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"COMPLETION" means the completion of the sale and purchase of the
Shares and the Loan Stock in accordance with clause 3;
"COMPLETION DATE" means the date on which Completion occurs;
"CONFIDENTIAL INFORMATION" means the Group Confidential Information and
the SK Confidential Information;
"CONTRIBUTION AGREEMENT" means the contribution agreement dated 23
December 1998 among (1) SK Europe, (2) SK Corp. and (3) the Company;
"DEFERRED CONSIDERATION" has the meaning set forth in clause 2.2;
"ENCUMBRANCE" means all mortgages, liens, pledges, charges, security
interests or encumbrances of any kind or other third party rights of
any nature whatsoever;
"ESCROW ACCOUNT" means the sterling interest bearing deposit account
to be opened with National Westminster Bank plc, London and into which
the Deferred Consideration is to be paid;
"ESCROW ACCOUNT INSTRUCTION LETTER" means the letter from, inter alia,
SK Europe and EEF to the Escrow Agent relating to the Escrow Account in
substantially the form of Exhibit A hereto;
"ESCROW AGENT" means Ashurst Xxxxxx Xxxxx of Xxxxxxxxx Xxxxx, 0 Xxxxxx
Xxxxxx, Xxxxxx XX0X 0XX;
"EUROPEAN STATE" means the countries listed in Schedule 4;
"FINAL ORDER" means an order of the Bankruptcy Court as to which the
time to appeal, petition for certiorari, or move for reargument or
rehearing with respect to the Sale Order shall have expired and as to
which no such appeal, petition or motion shall be pending or in the
event that an appeal, writ of certiorari or motion for reargument or
rehearing has been sought with respect to the Sale Order, the Sale
Order shall have been upheld by the highest court to which such Sale
Order shall have been appealed, or from which certiorari, reargument or
rehearing was sought and the time to take any further appeal, petition
for certiorari or move for reargument or rehearing shall have expired;
"GROUP" means the Company and its subsidiaries from time to time and
"GROUP COMPANY" means any one of them;
"GROUP CONFIDENTIAL INFORMATION" means all information relating to any
Group Company's business, financial or other affairs which is not
publicly known;
"LICENCE" means the trademark licence dated 23 December 1998 between
(1) Safety-Kleen Systems, Inc. and (2) Safety-Kleen UK Limited;
"LOAN STOCK" means the (pound symbol) 19,848,889 two per cent.
unsecured loan stock 2010 of the Company held by SK Europe constituted
pursuant to a loan stock instrument dated 23 December 1998;
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"RELATED PERSON" means in relation to any party its holding companies
and the subsidiary companies from time to time of such holding
companies, all of them and each of them as the context admits;
"RELEASE DEED" means the deed of release in substantially the form of
Exhibit B hereto;
"RENT DIFFERENTIAL" means the difference between the rent payable by
Safety-Kleen UK Limited as lessee of the UK Lease and the rent
specified as payable by the Company pursuant to clause 4.7 of the
Contribution Agreement in respect of the sub-lease to be taken out by
the Company as specified pursuant to clause 4.7 of the Contribution
Agreement;
"SAFETY-KLEEN DIRECTORS" means Messrs Xxxxxx, Xxxxx and Xxxx Xxxxxx;
"SALE ORDER APPROVAL DATE" means the 10th day following the date on
which the Sale Order shall have been entered on the docket by the Clerk
of the Bankruptcy Court;
"SERVICES AGREEMENT AMENDMENT AGREEMENT" means the amendment agreement
to the Services Agreement (as defined therein) in substantially the
form of Exhibit C hereto;
"SHARES" means the 2,640,000 issued ordinary shares of 1p each held by
SK Europe in the capital of the Company;
"SHORT-FORM LICENCE" means the licence between Safety-Kleen UK Limited
and SK Corp. in substantially the form of Exhibit D hereto;
"SK CONFIDENTIAL INFORMATION" means all information, which is not
publicly known, relating to the business, financial or other affairs of
any member of the SK Group;
"SK GROUP" means SK Corp. and any company which is a subsidiary of SK
Corp., a holding company of SK Corp. or a subsidiary of such holding
company and "MEMBER OF SK GROUP" shall be construed accordingly;
"SUBSCRIPTION AGREEMENT" means the subscription and shareholders
agreement dated 23 December 1998 among (1) the Company, (2) the
Managers (as defined therein), (3) SK Europe, (4) Electra Xxxxxxx
Limited (now Electra Partners Europe Limited) and (5) the Electra
Subscribers;
"TRADEMARK ASSIGNMENT" means the trademark assignment between SK Corp.,
Safety-Kleen Systems, Inc. and Safety-Kleen UK Limited in substantially
the form of Exhibit E hereto;
"TRADEMARK SIDE LETTER" means the side letter between Safety-Kleen UK
Limited and SK. Corp in substantially the form of Exhibit F hereto;
"TRANSACTION DOCUMENTS" means, as the context admits, this agreement,
the Trademark Assignment, the Services Agreement Amendment Agreement,
the Escrow Account Instruction Letter, the Release Deed, the Trademark
Side Letter, the share transfer form referred to in clause 3.2(a) and
the loan transfer form referred to in clause 3.2(b);
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"UK LEASE" has the meaning given to that term in the Contribution
Agreement; and "UK LEASE EXPIRY DATE" means 31 October 2009.
1.2 In this agreement unless otherwise specified, reference to:-
(a) a "SUBSIDIARY" or "HOLDING COMPANY" is to be construed in
accordance with section 736 of that Act;
(b) a document in the "AGREED TERMS" is a reference to that
document in the form approved and for the purposes of
identification signed by or on behalf of each party;
(c) a "PARTY" means a party to this agreement and includes its
permitted assignees (if any) and/or the successors in title to
substantially the whole of its undertaking;
(d) the reference to "RELATED PARTIES" in clause 4.1 means in
respect of EEF the Electra Subscribers, in respect of the
Company the members of the Group and in respect of SK Europe
the members of the SK Group;
(e) a "PERSON" includes any person, individual, company, firm,
corporation, government, state or agency of a state or any
undertaking (whether or not having separate legal personality
and irrespective of the jurisdiction in or under the law of
which it was incorporated or exists);
(f) a "STATUTE" or "STATUTORY INSTRUMENT" or any of their
provisions is to be construed as a reference to that statute
or statutory instrument or such provision as the same may have
been amended or re-enacted before the date of this agreement;
(g) "CLAUSES", "PARAGRAPHS" or "SCHEDULES" are to clauses and
paragraphs of and schedules to this agreement;
(h) "WRITING" includes any methods of representing words in a
legible form (other than writing on an electronic or visual
display screen) or other writing in non-transitory form;
(i) words denoting the singular shall include the plural and vice
versa and words denoting any gender shall include all genders;
(j) the time of day is reference to time in London, England.
1.3 The schedules form part of the operative provisions of this agreement
and references to this agreement shall, unless the context otherwise
requires, include references to the schedules.
2. SALE AND PURCHASE
2.1 Upon the terms of this agreement, SK Europe as legal and beneficial
owner with good and marketable title shall sell and EEF shall purchase
the Shares and the Loan Stock with effect from Completion free from any
Encumbrance.
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2.2 The initial consideration for such sale and purchase of the Shares and
of the Loan Stock shall be (pound symbol) 22,898,208. In addition, EEF
shall, subject to clause 6, pay the sum of (pound symbol) 840,681 (the
"DEFERRED CONSIDERATION") in respect of the Shares and the Loan Stock.
3. COMPLETION
3.1 Unless the parties shall otherwise agree, Completion shall take place
at such place as SK Europe and EEF as soon as practicable but in no
event more than fifteen days after the Sale Order Approval Date. EEF
will use reasonable endeavours to complete the transactions
contemplated by this agreement within 7 days of the Sale Order Approval
Date.
3.2 EEF's obligation to purchase the Shares and Loan Stock shall be subject
to the conditions (or waiver by EEF of any such conditions) that:
(a) SK Europe shall deliver to or, if EEF shall so agree, make
available to EEF:
(1) a transfer in the form as set out in Schedule I
transferring the Shares to EEF (or as it may before
Completion direct);
(ii) a transfer in the form as set out in Schedule 2
transferring the Loan Stock to EEF (or as it may
before Completion direct);
(iii) the share certificate in respect of the Shares;
(iv) the certificate in respect of the Loan Stock;
(v) letters of resignation in the agreed terms signed by
the Safety-Kleen Directors acknowledging that they
have no claims against any member of the Group
whether for loss of office or otherwise provided that
such release shall not result in the Safety-Kleen
Directors losing any right of indemnification that
they had, now have or may have against the Company in
connection with their acting as directors of the
Company;
(vi) the Trademark Assignment duly executed by
Safety-Kleen Systems, Inc. and SK Corp;
(vii) the Services Agreement Amendment Agreement duly
executed by Safety-Kleen Systems, Inc.;
(viii) the Release Deed duly executed by the members of the
SK Group that are a party to such deed;
(ix) the Escrow Account Instruction Letter duly executed
by SK Corp.;
(x) the Trademark Side Letter duly executed by SK Corp.;
and
(xi) the Short-Form Licence duly executed by SK Corp.;
(b) This agreement and the transactions contemplated hereunder
shall have been duly approved by the Board of Directors of SK
Corp.
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(c) the Bankruptcy Court shall have entered an order, in form and
substance reasonably acceptable to EEF (the "SALE ORDER"),
which:
(i) approves a sale of the Shares and Loan Stock to EEF,
pursuant to Sections 363(b) and (f) of the Bankruptcy
Code, free and clear of liens, claims and interests
and containing findings of fact and rulings that EEF
is a good faith purchaser and entitled to the
protections of Section 363(m) of the Bankruptcy Code;
(ii) approves an assignment of the trademarks to the
Company as specified in the Trademark Assignment,
pursuant to Sections 363(b) and (f) of the Bankruptcy
Code, free and clear of liens, claims and interests,
and containing findings of fact and rulings that the
Company is a good faith purchaser and entitled to the
protections of Section 363(m) of the Bankruptcy Code;
and
(iii) approves the assumption by Safety-Kleen Systems, Inc.
of the Services Agreement, dated 23 December 1998
(the "SERVICES AGREEMENT"), between Safety-Kleen
Systems, Inc. and the Company, as amended by the
Services Agreement Amendment Agreement;
(d) the Sale Order shall have become a Final Order;
(e) no stay or other injunction shall have been granted and be
continuing which suspends the effectiveness of the Sale Order;
(f) Safety-Kleen Systems, Inc. shall have assumed the Services
Agreement, as amended by the Services Agreement Amendment
Agreement, pursuant to Section 365 of the Bankruptcy Code; and
(g) SK Europe and SK Corp. shall have assumed the Contribution
Agreement, dated as of 23 December 1998 (the "CONTRIBUTION
AGREEMENT"), among SK Europe, SK Corp. and the Company, as
amended hereby, pursuant to Section 365 of the Bankruptcy
Code.
3.3 SK Europe's obligations to sell the Shares and Loan Stock shall be
subject to the conditions (or waiver by SK Europe of any such
conditions) that:
(a) on Completion EEF shall:
(i) procure the transfer by wire transfer of (pound
symbol) 22,898,208 in immediately available funds to an
account or accounts designated by SK Europe;
(ii) procure the transfer of the Deferred Consideration to
the Escrow Account;
(iii) procure that the Release Deed duly executed by the
parties thereto other than any party thereto which is
a member of the SK Group is delivered to SK Europe;
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(iv) procure the Escrow Account Instruction letter
executed by the parties thereto, other than SK
Europe, is delivered to SK Europe;
(v) procure that a counterpart of the Trademark
Assignment duly executed by Safety-Kleen UK Limited
and the Company, is delivered to SK Europe;
(vi) procure that the Services Agreement Amendment
Agreement, duly executed by the Company, is delivered
to SK Europe;
(vii) procure that the Trademark Side Letter duly executed
by the Company is delivered to SK Europe; and
(viii) the Short-Form Licence duly executed by Safety-Kleen
UK Limited;
(b) This agreement and the transactions contemplated hereunder
shall have been duly approved by the Board of Directors of SK
Corp.;
(c) the Bankruptcy Court shall have entered the Sale Order;
(d) the Sale Order shall have become a Final Order; and
(e) no stay or other injunction shall have been granted and be
continuing which suspends the effectiveness of the Sale Order.
3.4 On Completion, the Company shall pay to SK Corp. (or as it may direct)
the sum of $1,177,450 in full and final settlement of all amounts owed
by the Group to the SK Group, and all amounts owed by the SK Group to
the Group, on inter-company account as at 30 April 2000 (being the end
of "period 4 2000"). Subject to receipt of that payment, SK Corp. (for
itself and each member of the SK Group) accepts, and the Company (for
itself and each member of the Group) makes, such payment in full and
final settlement of all amounts due or accrued from the Group to the SK
Group, and from SK Group to the Group, on intercompany account as at 30
April 2000. SK Corp. (for itself and on behalf of each member of the SK
Group) for good and valuable consideration hereby releases each member
of the Group from any claims, actions, rights or demands SK Corp. or
any member of the SK Group has against any member of the Group in
respect of any fact, matter or thing occurring on or prior to 30 April
2000 provided that the release given hereunder does not extend to any
rights that SK Corp. or any other member of the SK Group has pursuant
to or arising out of the Contribution Agreement and does not extend to
any rights that SK Corp. or any other member of the SK Group has in
relation to the Arma-Kleen 2000 profit sharing arrangements. The
Company (on behalf of itself and each member of the Group) for good and
valuable consideration hereby releases SK Corp. and all other members
of the SK Group from any claims, actions, rights or demands the Company
or any member of the Group has against SK Corp or any other member of
the SK Group in respect of any fact, matter or thing occurring on or
prior to 30 April 2000 provided that the release given hereunder does
not extend to any rights that the Company or any other member of the
Group has pursuant to or arising out of the Contribution Agreement and
does not extend to any rights that the Company or any other member of
the Group has in relation to the Arma-Kleen 2000 profit sharing
arrangements.
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3.5 Each party shall use its commercially reasonable endeavours to fulfill
or obtain the fulfillment of the conditions to Completion set forth in
clauses 3.2 and 3.3 of this agreement.
3.6 SK Corp. will take all necessary action necessary in accordance with
applicable law and its governing documents to convene a meeting of its
Board of Directors as promptly as practicable, but no later than July
11, 2000, to consider and vote upon the approval of this agreement and
the transactions contemplated hereunder.
4. CAPACITY
4.1 Each of the Company, EEF and SK Europe severally warrants to the other
parties that:
(a) except, in the case of SK Europe and its related parties, for
any required approval of the Bankruptcy Court, it, and each of
its related parties, has full power and authority to enter
into and perform the Transaction Documents and the provisions
of the Transaction Documents and any other document to be
entered into pursuant to this agreement or the other
Transaction Documents, when executed, will constitute valid
and binding obligations of it and of its related parties in
accordance with their respective terms except as may be
limited by bankruptcy, insolvency, reorganisation, moratorium,
fraudulent transfer and other similar laws affecting
creditors' rights generally and by equitable principles of
general applicability;
(b) except, in the case of SK Europe and its related parties, for
any required approval of the Bankruptcy Court, the execution
and delivery of, and the performance by it and by its related
parties of their obligations under, the Transaction Documents
will neither:
(i) result in a breach of any provision of the Memorandum
or Articles of Association or the constitutional
documents applicable to it or to its related parties
or any material contract or agreement to which it or
any of its related parties is a party; nor
(ii) result in a breach of any material order, judgment or
decree of any court or governmental agency to which
it or any of its related parties is a party or by
which it or any of its related parties is bound;
(c) the execution, delivery and performance by it and by its
related parties of the Transaction Documents and the
consummation by it and by its related parties of the
transactions contemplated thereby are within the company
powers of it and of its related parties and have been duly
authorised by all necessary company action. The Transaction
Documents constitute valid and binding agreements of it and of
its related parties, enforceable against it and its related
parties in accordance with their terms except as may be
limited by bankruptcy, insolvency, reorganisation, moratorium,
fraudulent transfer and other similar laws affecting
creditors' rights generally and by equitable principles of
general applicability; and
(d) no action is pending or, to the best knowledge of it,
threatened before any government agency which seeks to delay
or prevent the consummation of the transactions contemplated
by the Transaction Documents.
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4.2 SK Europe warrants to EEF that it is the lawful owner of the Shares and
Loan Stock and upon sale and delivery of, and payment for, such Shares
and Loan Stock, as provided herein, subject to any required approval of
the Bankruptcy Court, it will convey to EEF, with good and marketable
title, such Shares and Loan Stock, free and clear of all Encumbrances.
5. PROTECTION OF GOODWILL
5.1 SK Corp. and SK Europe hereby undertake to procure that (except as
otherwise agreed in writing with the Company, the Electra Subscribers
and EEF) neither SK Corp., SK Europe nor any of their respective
subsidiaries will either solely or jointly with any other person
(either on its own account or as the agent of any other person) for a
period of 2 years from Completion:-
(a) carry on or be engaged or concerned or (except as the holder
of shares in a listed company which confer not more than five
per cent. of the votes which can generally be cast at a
general meeting of the company) interested directly or
indirectly in a business in any European State that carries on
any of the following activities: the parts cleaner and paint
gun cleaner service business; the hazardous and/or industrial
waste collection and handling, transportation, treatment,
recycling, storage, sale of car care chemicals and allied
products and disposal business;
(b) solicit or accept the custom of any person in respect of goods
to be sold or services to be provided in any European State
that are competitive with those manufactured or supplied by
any member of the Group during the period of 12 months prior
to Completion, such person having been a customer of the Group
in respect of such goods or services during such period;
(c) induce, solicit or endeavour to entice to leave the service or
employment of any member of the Group, any person who during
the period of 12 months prior to Completion was an employee of
any member of the Group occupying a senior or managerial
position.
5.2 SK Corp. and SK Europe agree that the undertakings contained in this
clause 5 are reasonable and are entered into for the purpose of
protecting the goodwill of the business of each member of the Group and
that accordingly the benefit of the undertakings may be assigned by the
Company, the Electra Subscribers and EEF and their successors in title
without the consent of SK Corp. or SK Europe.
5.3 Each undertaking contained in this clause 5 is and shall be construed
as separate and severable and if one or more of the undertakings is
held to be against the public interest or unlawful or in any way an
unreasonable restraint of trade or unenforceable in whole or in part
for any reason the remaining undertakings or parts thereof, as
appropriate, shall continue to bind SK Corp. and SK Europe.
5.4 If any undertaking contained in this clause 5 shall be held to be void
but would be valid if deleted in part or reduced in application, such
undertaking shall apply with such deletion or modification as may be
necessary to make it valid and enforceable. Without prejudice to the
generality of the foregoing, such period (as the same may previously
have been reduced by virtue of this clause 5.4) shall take effect as if
reduced by six months until the resulting period shall be valid and
enforceable.
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5.5 Nothing in this agreement prohibits any member of the SK Group from:
(a) supplying products or services to a United States of America
military base which is located in a European State provided
that such products or services do not compete with products or
services supplied or offered for supply by the Group in the
European State in which the military base is located; or
(b) pursuing an opportunity to supply a particular product or
service to any party located in any European State under a
name that is not similar to and can not be confused with the
name Safety-Kleen where the Company has elected in writing not
to pursue such opportunity and the Company shall, if requested
by a member of the SK Group, promptly inform in writing such
member of the SK Group whether the Company intends to pursue a
particular opportunity in a European State. The Company shall
not unreasonably delay responding to a request made pursuant
to this clause 5.5(b) for confirmation as to whether the
Company intends to pursue a particular opportunity.
6. ESCROW ACCOUNT
6.1 The parties acknowledge that they have been unable to obtain the
landlord's consent to the assignment to and assumption by SK Europe of
the UK Lease pursuant to the Contribution Agreement. Accordingly, and
as an inducement to EEF to enter into this agreement, the parties agree
that the covenant contained in clause 4.7 of the Contribution Agreement
shall be waived, and the undertaking contained in clause 6.2 shall
replace such covenant in its entirety.
6.2 SK Europe undertakes to pay the Rent Differential to the Company on a
calendar quarterly basis within 15 days of the Company serving an
invoice to SK Europe (in accordance with the requirements of clause 16
of this agreement) for the proportion of the Rent Differential payable
in respect of the preceding quarter ("RENT INVOICE") until the UK Lease
Expiry Date.
6.3 In consideration of SK Europe undertaking to pay the Rent Differential
on a quarterly basis pursuant to this clause 6, EEF shall, subject to
such quarterly payments being made by SK Europe, pay the Deferred
Consideration to SK Europe in quarterly instalments by directing the
Escrow Agent to pay such instalments of the Deferred Consideration, as
and when they become payable, to SK Europe but in no event more than 10
days after the receipt of payment of the Rent Differential by the
Company.
6.4 If SK Europe fails to comply with a payment obligation in clause 6.2,
the Company shall be entitled to serve a notice, in the form of
Appendix A to the Escrow Account Instruction Letter, ("PAYMENT NOTICE")
on the Escrow Agent directing the Escrow Agent to pay (i) to the
Company, out of funds held in the Escrow Account, an amount equal to
the difference between the amount specified in the Rent Invoice and the
amount, if any, paid by SK Europe to the Company in respect of such
invoice and the obligation of SK Europe to the Company arising pursuant
to clause 6.2 shall be reduced by a corresponding amount, as will be
the Deferred Consideration payable by EEF; and (ii) to SK Europe, as
Deferred Consideration, an amount equal to the proportion of the Rent
Differential that was payable, and that was
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paid by SK Europe. Any notice served by the Company on the Escrow Agent
hereunder shall be served on SK Europe at the same as it is served on
the Escrow Agent.
6.5 If the Company or EEF falls to comply with its obligation to procure
the payment of the Deferred Consideration in clause 6.3, SK Europe
shall be entitled to serve a notice, in the form of Appendix B to the
Escrow Account Instruction Letter, on the Escrow Agent directing the
Escrow Agent to pay to SK Europe, out of the funds held in the Escrow
Account, an amount equal to the proportion of the Deferred
Consideration that was payable by the EEF, that was not paid. Any
notice served by SK Europe on the Escrow Agent hereunder shall be
served on the Company at the same time as it is served on the Escrow
Agent.
6.6 In the event that an SK Europe fails to comply with its payment
obligation in clause 6.2 for four consecutive calendar quarters, the
Escrow Agent shall upon notice from the Company, remit to the Company
the balance standing to the credit of the Escrow Account and, at such
time as the balance standing to the credit of the Escrow Account is
paid to the Company, EEF shall have no further obligation to pay the
Deferred Consideration and SK Europe shall have no further obligation
in respect of the Rent Differential.
6.7 Within fifteen Business Days following the UK Lease Expiry Date, if the
Company has not issued a Payment Notice in respect of the final quarter
of the UK Lease, SK Europe may direct the Escrow Agent to pay to SK
Europe the amount held in the Escrow Account at such time by serving
notice to this effect on the Escrow Agent and on the Company. If the
Company has issued a Payment Notice in respect of the final quarter of
the UK Lease then the Escrow shall, as provided in the Escrow Account
Instruction Letter, pay firstly to the Company an amount equal to the
lesser of (i) the Rent Differential for the final quarter and (ii) the
amount standing to the credit of the Escrow Account and secondly to SK
Europe, the balance, if any, of the amount held in the Escrow Account.
Any payments made to the Company pursuant to this clause 6.6 will
discharge fully and finally the obligation of SK Europe pursuant to
clause 6.2. Any payments made to SK Europe pursuant to this clause 6.6
will be in full and final satisfaction of EEF's obligation to pay the
Deferred Consideration to SK Europe.
6.8 EEF appoints the Company as its agent to hold any monies received by
the Company from the Escrow Agent pursuant to this clause 6.
6.9 The parties acknowledge that the amount payable by SK Europe pursuant
to this clause 6, in respect of the Rent Differential, has been
calculated on the basis that the effective rental payable by the
Company has been increased by (pound symbol) 20,000 per annum and that
the Company may, for the remainder of the term of the UK Lease,
utilise 2 floors of the premises covered by the UK Lease.
6.10 If the Company vacates, or is required by the Lessor of the UK Lease to
vacate, the premises that are the subject of the UK Lease (the "UK
PREMISES") prior to the UK Lease Expiry Date ("TERMINATION DATE"), the
Company shall serve a written notice, counter signed by the Lessor of
the UK Premises, on SK Europe (in accordance with the requirements of
clause 16 of this agreement) setting out the amount (if any) payable by
the Company to the Lessor in respect of the rental obligations of the
Company under the UK Lease for the unexpired term of the UK Lease, the
proportion (in percentage terms) which that amount bears to the total
rent which would have been payable under the UK Lease by the Company
following the Termination Date had the Company been the tenant under
the UK Lease until the UK Lease
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Expiry Date (the "RENT PERCENTAGE"). The Company or SK Europe may, ten
Business Days after the Termination Date, serve a Notice on the Escrow
Agent directing the Escrow Agent to pay (i) to the Company, out of
funds held in the Escrow Account, an amount equal to the Rent
Percentage multiplied by the then current balance of the Escrow
Account; and (ii) to SK Europe, as Deferred Consideration, an amount
equal to the balance of the Escrow Account after the payment to the
Company referred to in clause 6.10(i) has been paid by the Escrow Agent
and the Company or SK Europe, as the case may be, shall direct the
Escrow Agent to pay such amounts as soon as possible after receipt of
such Notice. Any payments made to the Company pursuant to this clause
6.10 will discharge fully and finally the obligation of SK Europe
pursuant to clause 6.2. Any payments made to SK Europe pursuant to this
clause 6.10 will be in full and final satisfaction of EEF's obligation
to pay the Deferred Consideration to SK Europe.
7. CONFIDENTIAL INFORMATION
7.1 Neither SK Europe nor SK Corp. shall, and each of them shall procure
that no other member of the SK Group or any director, officer or
employee or adviser or agent of the SK Group shall, use or disclose to
any person Group Confidential Information. Neither the Company, the
Electra Subscribers nor EEF shall, and each of them shall procure that
no member of the Group or any director, officer or employee or adviser
or agent of the Group shall, use or disclose to any person SK
Confidential Information. It is acknowledged that this clause 7.1 does
not prevent any party from using information which, at the time it
intends using such information, relates solely to it or to any of its
Related Persons.
7.2 Clause 7.1 does not apply to:-
(a) disclosure of Group Confidential Information to or at the
written request of EEF or at the written request of any of
EEF's Related Persons;
(b) disclosure of SK Confidential Information to or at the written
request of SK Corp. or at the written request of any other
member of the SK Group;
(c) use or disclosure of Confidential Information required to be
disclosed by law or regulations, including the US securities
laws and the rules and regulations thereunder, or the rules
and regulations of the London Stock Exchange or other
applicable exchange or regulatory body under whose rules the
disclosing party is bound;
(d) disclosure of Confidential Information to professional
advisers for the purpose of advising any member of a party
hereto;
(e) disclosure of Confidential Information by a member of the SK
Group to another member of the SK Group or by a member of the
Group to another member of the Group; or
(f) Confidential Information which becomes publicly known other
than by any breach of clause 7.1.
8. ANNOUNCEMENTS
-12-
Each of the parties undertakes with the others that it shall neither
before nor after Completion make any announcement (otherwise than as is
required by law or by the rules or regulations of any securities
exchange or regulatory body under whose rules the announcing party is
bound) concerning the terms of this agreement or any of the Transaction
Documents without the prior written consent of the Company, EEF and SK
Europe and the terms of any such announcement which is required by law
or the rules or regulations of any securities exchange or regulatory
body shall be the subject of prior consultation between the parties.
Nothing in this clause will prevent any party from making an
announcement which contains only information which was contained in an
announcement previously made in compliance with this clause or in
accounts of any member of the Group published in compliance with this
clause. Communications with investors in any Electra funds, or in EEF,
shall not constitute announcements for the purpose of this clause (but
shall be subject to the confidentiality provisions contained in clause
7).
9. COSTS
Unless expressly otherwise provided in this agreement each of the
parties shall bear its own legal, accountancy and other costs, charges
and expenses connected with the negotiation and completion of this
agreement. To the extent that any stamp duty is payable on the transfer
of the Shares or on the transfer of the Loan Stock pursuant to this
agreement, such stamp duty shall be payable by EEF.
10. EFFECT OF COMPLETION
The terms of this agreement (insofar as not performed at Completion and
subject as specifically otherwise provided in this agreement) shall
continue in force after and notwithstanding Completion. Other than as
expressly set forth herein, the terms of the Contribution Agreement
shall remain in full force and effect.
11. FURTHER ASSURANCES
11.1 Each of the parties shall from time to time forthwith upon reasonable
request from the others (and at the requesting parties' cost) do or
procure the doing of all acts and/or execute or procure the execution
of all such documents in a form reasonably satisfactory to the party
concerned for the purpose of vesting in EEF the full legal and
beneficial title to the Shares and Loan Stock and otherwise giving EEF
and SK Europe the full benefit of this agreement, including, without
limitation, to obtain all authorisations necessary for the performance
by the parties of their respective obligations hereunder, including the
authorisations of the Bankruptcy Court.
11.2 Following Completion, the Company and its affiliates shall (at the cost
of SK Corp.) cooperate, and shall cause its subsidiaries to co-operate,
with the reasonable requirements of SK Corp., SK Europe and their
respective affiliates and independent public accountants in connection
with any audit or tax reporting matters, including, but not limited to,
providing access to historical accounting records and accountants' work
papers and providing any necessary management representation letters
with respect to financial statements covering the period ending on or
prior the Completion provided that any parties requiring such
assistance sign a confidentiality deed in such form as is reasonably
required by the Company.
-13-
11.3 Section 5.5(c)(ii) of the Contribution Agreement is hereby amended by
adding the following words after the words "subparagraph (a) above":
"and any refunds or credits of Taxes (including interest
thereon) received by or credited to the Company relating to
any competent authority proceeding under any income tax treaty
for royalties received by the Company or its affiliates from
affiliates with respect to any taxable period ending on or
before the Closing Date (where such refund or credit has not
been taken into account in the Financial Statements)
notwithstanding the fact that the Company includes such refund
or credit on a tax return for a taxable period ending after
the Closing Date"
11.4 Each of SK Corp. and SK Europe shall, and shall cause their respective
subsidiaries, as applicable, to, assume the Services Agreement and the
Contribution Agreement, each as amended, pursuant to Section 365 of the
Bankruptcy Code.
11.5 (a) Neither SK Corp., SK Europe or any of their affiliates or any
of their or their affiliates' respective directors, officers,
employees, agents or representatives ("Affiliates") shall
solicit, or initiate, directly or indirectly, any inquiries,
discussions or proposals for an acquisition of the Shares and
Loan Stock (an "Acquisition Proposal"); PROVIDED that, subject
to compliance with the provisions of clause 11.5(b), SK Corp.,
SK Europe and their affiliates may provide Information to and
negotiate with any person from which they receive an
unsolicited Acquisition Proposal; and PROVIDED FURTHER that
the foregoing shall not be deemed to prohibit or restrict SK
Corp., SK Europe or their affiliates from making appropriate
filings with the Bankruptcy Court to obtain authorization for
the transactions contemplated herein.
(b) Prior to, SK Corp., SK Europe or any of their affiliates
providing any information or entering into discussions with
any person in connection with an Acquisition Proposal, SK
Corp. will promptly notify EEF and indicate in such notice the
identity of the offeror and a complete and accurate
description of the material terms thereof and provide EEF with
a copy of any writing evidencing such Acquisition Proposal,
and thereafter keep EEF informed of any material changes to
the terms and conditions of such Acquisition Proposal.
12. ENTIRE AGREEMENT
12.1 Each party on behalf of itself and as agent for each of its Related
Persons acknowledges and agrees with the other parties (each such party
acting on behalf of itself and as agent for each of its Related
Persons) that:-
(a) this agreement together with the other Transaction Documents
constitute the entire and only agreement between the parties
and their respective Related Persons relating to the subject
matter of the Transaction Documents;
(b) neither it nor any of its Related Persons have been induced to
enter into any Transaction Document in reliance upon, nor have
they been given, any warranty, representation, statement,
assurance, covenant, agreement, undertaking, indemnity or
commitment of any nature whatsoever other than as are
expressly set out in the Transaction Documents and, to the
extent that any of them have been, it (acting on behalf of
itself and as agent on behalf of each of its Related Persons)
unconditionally
-14-
and irrevocably waives any claims, rights or remedies which
any of them might otherwise have had in relation thereto;
PROVIDED THAT the provisions of this clause 12 shall not exclude any
liability which any of the parties or, where appropriate, their Related
Persons would otherwise have to any other party or, where appropriate,
to any other party's Related Persons or any right which any of them may
have to rescind this agreement in respect of any statements made
fraudulently by any of them prior to the execution of this agreement or
any rights which any of them may have in respect of fraudulent
concealment by any of them.
13. VARIATIONS
This agreement may be varied only by a document signed by each of the
parties hereto.
14. WAIVER
14.1 A waiver of any term, provision or condition of, or consent granted
under, this agreement shall be effective only if given in writing and
signed by the waiving or consenting party and then only in the instance
and for the purpose for which it is given.
14.2 No failure or delay on the part of any party in exercising any right,
power or privilege under this agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
14.3 No breach of any provision of this agreement shall be waived or
discharged except with the express written consent of the parties
hereto.
14.4 The rights and remedies herein provided are cumulative with and not
exclusive of any rights or remedies provided by law.
15. INVALIDITY
15.1 If any provision of this agreement is or becomes invalid, illegal or
unenforceable IN any respect under the law of any jurisdiction:-
(a) the validity, legality and enforceability under the law of
that jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any
other jurisdiction of that or any other provision,
shall not be affected or impaired in any way.
16. NOTICES
16.1 Any notice, demand or other communication given or made under or in
connection with the matters contemplated by this agreement shall be in
writing and shall be delivered personally or sent by fax or prepaid
first class post (air mail if posted to or from a place outside the
United Kingdom):-
-15-
In the case of the Company to:-
Safety-Kleen Europe Limited
000 Xxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxx XX0 0XX
Fax: 0000 000 0000
Attention: Xxxxx Xxxxxxx
In the case of the Electra Subscribers and EEF to:-
Electra Partners Europe Limited
00 Xxxxxxxx
Xxxxxx, XX0X 0XX
Fax: 0000 000 0000
Attention: Xxxxxx Xxxxxx/Xxxxx Xxxxxx
In the case of SK Corp. to:
Safety-Kleen Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx
Xxxxx Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
Fax: 000 000 000 0000
Attention: Xxxxxx Xxxx/Xxxxx Xxxxxx
With copies to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx of America
Fax: 000 000 000 0000
Attention: Xxxxxxx X. Xxxxxxxxx
and shall be deemed to have been duly given or made as follows:-
(a) if personally delivered, upon delivery at the address of the
relevant party;
(b) if sent by first class post, five Business Days after the date of
posting;
(c) if sent by air mail, 5 Business Days after the date of posting; and
(d) if sent by fax, when despatched;
-16-
provided that if, in accordance with the above provisions, any such
notice, demand or other communication would otherwise be deemed to be
given or made after 5.00 p.m. on a Business Day such notice, demand or
other communication shall be deemed to be given or made at 9.00 a.m. on
the next Business Day.
16.2 A party may notify the other parties to this agreement of a change to
its name, relevant addressee, address or fax number for the purposes of
clause 16.1 provided that such notification shall only be effective
on:-
(a) the date specified in the notification as the date on which
the change is to take place; or
(b) if no date is specified or the date specified is less than
five Business Days after the date on which notice is given,
the date falling five Business Days after notice of any such
change has been given.
17. COUNTERPARTS
This agreement may be executed in any number of counterparts which
together shall constitute one agreement. Any party may enter into this
agreement by executing a counterpart and this agreement shall not take
effect until it has been executed by all parties.
18. GOVERNING LAW AND JURISDICTION
18.1 This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this agreement
or its formation) shall be governed by and construed in accordance with
the law of the State of New York applicable to agreements entered into
and to be performed wholly within such state.
18.2 The parties hereby irrevocably submit to the exclusive jurisdiction of
the United States Bankruptcy Court for the District of Delaware for the
purpose of any action or proceeding arising out of or relating to this
agreement and the parties hereby irrevocably agree that all claims in
respect of such action or proceeding shall be heard and determined in
such court. The parties agree that a final judgment in any action or
proceeding shall be conclusive and may be enforced in other
Jurisdictions by suit on the judgment or in any other manner provided
by law.
18.3 In the event that the Bankruptcy Court shall not have or declines to
take jurisdiction over any such action or proceeding, each of the
parties hereto (a) consents to submit itself to the personal
jurisdiction of any federal court located in the State of New York or
any New York state court in the event any dispute arises out of this
agreement or any of the transactions contemplated by this agreement,
(b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court
and (c) agrees that it will not bring any action relating to this
agreement or any of the transactions contemplated hereby in any court
other than a federal or state court sitting in the State of New York.
19. SPECIFIC PERFORMANCE
-17-
The parties agree that any remedy involving only the award of monetary
damages would be inadequate. Accordingly, each party shall be entitled
to specific performance of this agreement and, where the applicable
legal standards for such relief are met, additional equitable or
injunctive relief
20. TERMINATION
This agreement and the transactions contemplated hereby may be
terminated by EEF or by SK Corp. at any time prior to Completion with
written notice thereof to the other if (i) the transactions
contemplated by this agreement shall not have been approved by the
Bankruptcy Court on or prior to 19 July 2000 (or such later date to
which the hearing currently scheduled for 19 July 2000 with the
Bankruptcy Court for the approval of this agreement and the transaction
contemplated hereby is rescheduled or continued, (ii) the Sale Order
shall not have been entered on the docket by the Clerk of the
Bankruptcy Court on or prior to 0 Xxxxxx 0000, (xxx) if any required
approval of the Board of Directors of SK Corp. shall not have been
obtained at the meeting of the Board of Directors held to consider this
agreement and the transactions contemplated hereunder, or (iii) for any
other reason (unless the party seeking to terminate is in material
breach of this agreement), Completion shall not have occurred on or
prior to 21 August 2000. In the event of termination of this agreement
pursuant to clause 20, this agreement shall forthwith become null and
void and have no effect, except that the agreements contained in
clauses 7, 8, 12 and this clause 20 shall survive the termination and
the termination of this agreement shall be without prejudice to any
claim that a party may have at law or in equity arising out of any
breach by the other parties of the terms and conditions of this
agreement occurring prior to the date of termination.
IN WITNESS whereof this agreement has been executed on the date first above
written.
SCHEDULE 1
The Share Transfer form
-19-
STOCK
TRANSFER
FORM (Above this line for Registrars only)
----------------------------------------------------------------------
Certificate lodged with the Registrar
Consideration Money (pound symbol) 3,890,000 (for completion by the Registrar
/Stock Exchange)
--------------------------------------------------------------------------------
Name or Undertaking Safety-Kleen Europe Limited
--------------------------------------------------------------------------------
Description of Security Ordinary shares of one xxxxx each
--------------------------------------------------------------------------------
Number or amount of Shares, Words Figures
Stock or other security and two million, six hundred (2,640,000 units
in figures column only and Forty Thousand of 1p each)
number and denomination of
units, if any
--------------------------------------------------------------------------------
Name(s) of registered holder(s) In the name(s) of
should be given in full: the SK Europe Inc.
address should be given where 0000 Xxxxxxx Xxxxxx Xxxxxxxx
there is only one holder. Xxxxx Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
If the transfer is not made by
insert the registered holder(s)
also the name(s) and capacity
(i.e. Executor(s) of the person(s)
making the transfer
--------------------------------------------------------------------------------
I/We hereby transfer the above security Stamp of Selling Broker(s) or,
out of the name(s) aforesaid to the for transactions which are not
person(s) named below. stock exchange transactions
Signature(s) of transferor(s) of Agent(s), if any, acting
1. for the Transferor(s)
----------------------------------------
2.
----------------------------------------
3.
----------------------------------------
4. Date
---------------------------------------- -------------------------
A Body corporate should execute this transfer
under its common seal or otherwise in accordance
with applicable statutory requirements
--------------------------------------------------------------------------------
Full name(s). full postal Electra European Fund LP
address(es) (including County 65 Kingsway
or, if applicable, Postal London
District number) of the XX0X 0XX
person(s) to whom the
security is transferred.
Please state title, if any, or
whether Mr., Mrs. or Miss.
Please complete in type
or in Block Capitals
--------------------------------------------------------------------------------
I/We request that such entries be made in the register as are necessary to give
effect to this transfer.
--------------------------------------------------------------------------------
Stamp or name and address of person
lodging this form (if other than
Stamp of Buying Broker(s) (if any). the Buying Broker(s)).
--------------------------------------------------------------------------------
Ashurst Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxx, XX0X 0XX - 639 London/City
0207 638 1111
--------------------------------------------------------------------------------
Ref: TOH/1732933
Reference to the Registrar in this form means the registrar or registration
agent of the undertaking NOT the Registrar of Companies at Companies House
FORM OF CERTIFICATE REQUIRED FOR EXEMPTION FROM STAMP DUTY
Instruments of transfer executed on or after 1 May 1987 are exempt from stamp
duty when the transaction falls within one of the following categories and will
not need to be seen in stamp offices provided they are certified as below in
accordance with the Stamp Duty (Exempt Instruments) Regulation 1987.
A. The vesting of property subject to a trust in the trustees of the trust
on the appointment of a new trustee, or in the continuing trustees on
the retirement of a trustee.
B. The conveyance or transfer of property the subject of a specific devise
or legacy to the beneficiary named in the will (oar his nominee)
C. The conveyance or transfer of property which forms part of an
intestate's estate to the person entitled on intestacy (or his nominee)
D. The appropriation of property within section 84(4) of the Finance Xxx
0000 (death: appropriation in satisfaction of a general legacy of
money) or section 84(5) or (7) of that Act (death: appropriation in
satisfaction of any interest of surviving spouse and in Scotland also
of any interest of issue).
E. The conveyance or transfer of property which forms part of the
residuary estate of a testator to a beneficiary (or his nominee)
entitled solely by virtue of his entitlement under the will.
F. The conveyance or transfer of property out of a settlement in or
towards satisfaction of a beneficiary's interest, not being an interest
acquired for money or money's worth, being a conveyance or transfer
constituting a distribution of property in accordance with the
provisions of the settlement.
G. The conveyance or transfer of property on and in consideration only of
marriage to a party to the marriage (or his nominee) or to trustees to
be held on terms of a settlement made in consideration only of the
marriage.
H. The conveyance or transfer of property within section 83(1) of the
Finance XXx 0000 (transfers in connection with divorce etc.).
I. The conveyance or transfer by the liquidator of property which formed
part of the assets of the company in liquidation to a shareholder of
that company (or his nominee) in or towards satisfaction of the
shareholder's rights on a winding up.
J. The grant in fee simple of an easement in or over land for no
consideration in money or money's worth.
K. The grant in servitude for no consideration in money or money's worth.
L. The conveyance or transfer of property operating as a voluntary
disposition inter vivos for no consideration in money or money's
worth nor any consideration referred to in section 57 of the Stamp Act
[89] (conveyance in consideration of a debt etc.).
M. The conveyance or transfer of property by an instrument within section
84(t) of the Finance Xxx 0000 (death varying disposition).
I/We hereby certify that this instrument falls
within category(1)___ in the Schedule to the Stamp
Duty (Exempt Instruments) Regulations 1987 set out
above.
(1) Insert A or B I/We, not being the transferor, grantor, or the
or appropriate solicitor(s) thereof, hereby state that I/We are
category authorised to sign this certificate and that I/We
give the certificate from my/our own knowledge of
(2) Delete this (2) facts stated in it.
paragraph if not
applicable. Dated the ........day of ............ ......
(3) To be signed by
transferor or
grantor or by
solicitor or duly (3) Signatory (4) Description or capacity of
authorized agent. signatory
(4) /here signed by ..................... .........................
person not
transferor, grantor ..................... .........................
or solicitor. state
capacity in which ..................... .........................
signed.
FORM OF CERTIFICATE REQUIRED WHERE TRANSFER IS NOT LIABLE TO AD VALOREM
STAMP DUTY
((pound symbol) 5.00 fixed duty payable)
Some instruments of transfer are liable to a fixed duty of (pound symbol) 5.00
when the transaction falls within one of the following categories - for which
the certificate below may be completed;
(1) Transfer by way of security for a loan or re-transfer to the
original transferor or repayment of a loan.
(2) Transfer, not on sale and not arising under any contract of
sale and where no beneficial interest in the property passes:
(a) to a person who is a mere nominee of, and is nominated
only by, the transferor; (b) from a mere nominee who has at
all times held the property on behalf of the transforee (c)
from one nominee to another nominee or the same beneficial
owner where the first nominee has at all times held the
property on behalf of that beneficial owner. (NOTE - This
category does not include a transfer made in any of the
following cir4cumstances: (i) by a holder of stock, etc.
following the grant of an option to purchase the stock to the
person entitled to the option or his nominee; (ii) to a
nominee in contemplation of a contract for the sale of the
stock, etc. then about to be entered into; (iii) from the
nominee of a vendor, who has instructed the nominee orally or
by some unstamped writing to hold stock, etc. in trust for a
purchaser, to such purchaser.)
*Insert (1)
or (2) I/We hereby certify that the transaction in respect of which
this transfer is made is one which falls within the category
..........* above. I/We confirm that I/We have been duly
authorised by the transferor to sign this certificate and that
the facts of the transactions are within my/our knowledge.
Here set out .......................................................
concisely the .......................................................
facts explaining .......................................................
the transaction .......................................................
in cases falling Signature(s) Description ("Transferor",
within (1) or (2) Solicitor", etc.)
or in any other ........................ ...........................
case where 50p ........................ ...........................
fixed duty is ........................ ...........................
offered ........................ ...........................
Date.................... ...........................
SCHEDULE 2
The Loan Stock Transfer form
-20-
STOCK
TRANSFER
FORM (Above this line for Registrars only)
----------------------------------------------------------------------
Certificate lodged with the Registrar
Consideration Money (pound symbol) 19,848,889 (for completion by the Registrar
/Stock Exchange)
--------------------------------------------------------------------------------
Name or Undertaking Safety-Kleen Europe Limited
--------------------------------------------------------------------------------
Description of Security (pound symbol) 19,848,899 2% unsecured loan
stock 2010
--------------------------------------------------------------------------------
Number or amount of Shares, Words Figures
Stock or other security and Nineteen million, eight (19,848,889 units
hundred and forty eight of (pound symbol)1)
in figures column only thousand, eight hundred
number and denomination of and eighty nine pounds of
units if any 2% unsecured loan stock
and Forty Thousand of 1p each)
--------------------------------------------------------------------------------
Name(s) of registered holder(s) In the name(s) of
should be given in full: the SK Europe Inc.
address should be given where 0000 Xxxxxxx Xxxxxx Xxxxxxxx
there is only one holder. Xxxxx Xxxxxxxx 00000
Xxxxxx Xxxxxx of America
If the transfer is not made by
insert the registered holder(s)
also the name(s) and capacity
(i.e. Executor(s) of the person(s)
making the transfer
--------------------------------------------------------------------------------
I/We hereby transfer the above security Stamp of Selling Broker(s) or,
out of the name(s) aforesaid to the for transactions which are not
person(s) named below. stock exchange transactions
Signature(s) of transferor(s) of Agent(s), if any, acting
1. for the Transferor(s)
----------------------------------------
2.
----------------------------------------
3.
----------------------------------------
4. Date
---------------------------------------- -------------------------
A Body corporate should execute this transfer
under its common seal or otherwise in accordance
with applicable statutory requirements
--------------------------------------------------------------------------------
Full name(s). full postal Electra European Fund LP
address(es) (including County 65 Kingsway
or, if applicable, Postal London
District number) of the XX0X 0XX
person(s) to whom the
security is transferred.
Please state title, if any, or
whether Mr., Mrs. or Miss.
Please complete in type
or in Block Capitals
--------------------------------------------------------------------------------
I/We request that such entries be made in the register as are necessary to give
effect to this transfer.
--------------------------------------------------------------------------------
Stamp or name and address of person
lodging this form (if other than
Stamp of Buying Broker(s) (if any). the Buying Broker(s)).
--------------------------------------------------------------------------------
Ashurst Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx, 0 Xxxxxx Xxxxxx,
Xxxxxx, XX0X 0XX - 639 London/City
0207 638 1111
--------------------------------------------------------------------------------
Ref: TOH/1732933
Reference to the Registrar in this form means the registrar or registration
agent of the undertaking NOT the Registrar of Companies at Companies House
FORM OF CERTIFICATE REQUIRED FOR EXEMPTION FROM STAMP DUTY
Instruments of transfer executed on or after 1 May 1987 are exempt from stamp
duty when the transaction falls within one of the following categories and will
not need to be seen in stamp offices provided they are certified as below in
accordance with the Stamp Duty (Exempt Instruments) Regulation 1987.
A. The vesting of property subject to a trust in the trustees of the trust
on the appointment of a new trustee, or in the continuing trustees on
the retirement of a trustee.
B. The conveyance or transfer of property the subject of a specific devise
or legacy to the beneficiary named in the will (oar his nominee)
C. The conveyance or transfer of property which forms part of an
intestate's estate to the person entitled on intestacy (or his nominee)
D. The appropriation of property within section 84(4) of the Finance Xxx
0000 (death: appropriation in satisfaction of a general legacy of
money) or section 84(5) or (7) of that Act (death: appropriation in
satisfaction of any interest of surviving spouse and in Scotland also
of any interest of issue).
E. The conveyance or transfer of property which forms part of the
residuary estate of a testator to a beneficiary (or his nominee)
entitled solely by virtue of his entitlement under the will.
F. The conveyance or transfer of property out of a settlement in or
towards satisfaction of a beneficiary's interest, not being an interest
acquired for money or money's worth, being a conveyance or transfer
constituting a distribution of property in accordance with the
provisions of the settlement.
G. The conveyance or transfer of property on and in consideration only of
marriage to a party to the marriage (or his nominee) or to trustees to
be held on terms of a settlement made in consideration only of the
marriage.
H. The conveyance or transfer of property within section 83(1) of the
Finance XXx 0000 (transfers in connection with divorce etc.).
I. The conveyance or transfer by the liquidator of property which formed
part of the assets of the company in liquidation to a shareholder of
that company (or his nominee) in or towards satisfaction of the
shareholder's rights on a winding up.
J. The grant in fee simple of an easement in or over land for no
consideration in money or money's worth.
K. The grant in servitude for no consideration in money or money's worth.
L. The conveyance or transfer of property operating as a voluntary
disposition inter vivos for no consideration in money or money's
worth nor any consideration referred to in section 57 of the Stamp Act
[89] (conveyance in consideration of a debt etc.).
M. The conveyance or transfer of property by an instrument within section
84(t) of the Finance Xxx 0000 (death varying disposition).
I/We hereby certify that this instrument falls
within category(1)___ in the Schedule to the Stamp
Duty (Exempt Instruments) Regulations 1987 set out
above.
(1) Insert A or B I/We, not being the transferor, grantor, or the
or appropriate solicitor(s) thereof, hereby state that I/We are
category authorised to sign this certificate and that I/We
give the certificate from my/our own knowledge of
(2) Delete this (2) facts stated in it.
paragraph if not
applicable. Dated the ........day of ............ ......
(3) To be signed by
transferor or
grantor or by
solicitor or duly (3) Signatory (4) Description or capacity of
authorized agent. signatory
(4) /here signed by ..................... .........................
person not
transferor, grantor ..................... .........................
or solicitor. state
capacity in which ..................... .........................
signed.
FORM OF CERTIFICATE REQUIRED WHERE TRANSFER IS NOT LIABLE TO AD VALOREM
STAMP DUTY
((pound symbol) 5.00 fixed duty payable)
Some instruments of transfer are liable to a fixed duty of (pound symbol) 5.00
when the transaction falls within one of the following categories - for which
the certificate below may be completed;
(1) Transfer by way of security for a loan or re-transfer to the
original transferor or repayment of a loan.
(2) Transfer, not on sale and not arising under any contract of
sale and where no beneficial interest in the property passes:
(a) to a person who is a mere nominee of, and is nominated
only by, the transferor; (b) from a mere nominee who has at
all times held the property on behalf of the transforee (c)
from one nominee to another nominee or the same beneficial
owner where the first nominee has at all times held the
property on behalf of that beneficial owner. (NOTE - This
category does not include a transfer made in any of the
following cir4cumstances: (i) by a holder of stock, etc.
following the grant of an option to purchase the stock to the
person entitled to the option or his nominee; (ii) to a
nominee in contemplation of a contract for the sale of the
stock, etc. then about to be entered into; (iii) from the
nominee of a vendor, who has instructed the nominee orally or
by some unstamped writing to hold stock, etc. in trust for a
purchaser, to such purchaser.)
*Insert (1)
or (2) I/We hereby certify that the transaction in respect of which
this transfer is made is one which falls within the category
..........* above. I/We confirm that I/We have been duly
authorised by the transferor to sign this certificate and that
the facts of the transactions are within my/our knowledge.
Here set out .......................................................
concisely the .......................................................
facts explaining .......................................................
the transaction .......................................................
in cases falling Signature(s) Description ("Transferor",
within (1) or (2) Solicitor", etc.)
or in any other ........................ ...........................
case where 50p ........................ ...........................
fixed duty is ........................ ...........................
offered ........................ ...........................
Date.................... ...........................
SCHEDULE 3
The Electra Subscribers
Name and Address
Electra Private Equity Partners (a
United Kingdom limited partnership
established under the Partnership Ac
1907 and registered under number
LP4913)
00 Xxxxxxxx
Xxxxxx XX0X 0XX
(nominee holder: Kingsway
Nominees Ltd A/C DESEFPEP)
E F Nominees Limited
00 Xxxxxxxx
Xxxxxx XX0X 0XX
-21-
SCHEDULE 4
European States
(a) Austria
(b) Belgium
(c) Denmark
(d) Finland
(e) France
(f) Germany
(g) Greece
(h) Ireland
(i) Italy
(j) Luxembourg
(k) The Netherlands
(l) Portugal
(m) Spain
(n) Sweden
(o) United kingdom
(p) Poland
(q) The Czech Republic
(r) Hungary
(s) Switzerland
(t) Normway
(u) Turkey
Signed by Xxxxx Xxxxxx )
for and on behalf of SAFETY-KLEEN ) /s/ Xxxxx Xxxxxx
EUROPE LIMITED )
in the presence of:- )
/s/ N R W Xxxx
N R W Xxxx
Signed by ) /s/ Xxxxx X. Xxxxxx
for and on behalf of SK EUROPE, INC. ) Xxxxx X. Xxxxxx
in the presence of:- ) President
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Signed by ) /s/ Xxxxx X. Xxxxxx
for and on behalf of SAFETY-KLEEN CORP. ) Xxxxx X. Xxxxxx
in the presence of:- ) President
)
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Signed by Xxxxx Xxxxxx )
for and on behalf of ELECTRA GP (UK) )
LIMITED a general partner of ) /s/ Xxxxx Xxxxxx
ELECTRA PRIVATE EQUITY PARTNERS )
in the presence of:- )
/s/ N R W Xxxx
N R W Xxxx
Signed by Xxxxx Xxxxxx )
for and on behalf of EF NOMINEES LIMITED ) /s/ Xxxxx Xxxxxx
in the presence of:- )
)
/s/ N R W Xxxx
N R W Xxxx
-23-
Signed by C Helyar )
) /s/ C Helyar
for and on behalf of ELECTRA EUROPEAN )
FUND (GP) LIMITED AS MANAGING ) C.A.E. Helyar
GENERAL PARTNER OF ELECTRA ) Director
EUROPEAN FUND LP )
-24-
EXHIBIT A
ESCROW ACCOUNT INSTRUCTION LETTER
4 August 2000
To: Ashurst Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Dear Sirs
ESCROW ACCOUNT INSTRUCTION LETTER
We refer to the agreement dated the same date as this letter (the "AGREEMENT")
for the sale and purchase of the issued shares and loan stock held by SK Europe
Inc. in Safety-Kleen Europe Limited made between (1) Safety-Kleen Europe Limited
(the "COMPANY"), (2) SK Europe, Inc, (the "SELLER"), (3) Safety-Kleen Corp., (4)
The Electra Subscribers and (5) Electra European Fund LP (the "BUYER"). Terms
defined in the Agreement shall, unless indicated otherwise, have the same
meaning when used in this letter.
1. We irrevocably instruct you to:-
1.1 open one separately designated interest bearing sterling deposit
account at National Westminster Bank plc (the "BANK") at its branch at
00 Xxxxxxxxxx Xxxxxx XX0X 0XX, Xxxxxx, such account to be opened in the
name of the Escrow Agent and to be designated as the Escrow Account
(the "ESCROW ACCOUNT");
1.2 hold all sums for the time being standing to the credit of the Escrow
Account, including all interest accruing on such sums (less any amount
debited to the Escrow Account by the Bank in respect of its fees and
charges) to our payment order in accordance with the terms of this
letter and the Agreement; and
1.3 following receipt of a Payment Notice issued pursuant to paragraph 8 of
this letter or a SK Europe Notice issued pursuant to paragraph 9 of
this letter indicating that an amount (or amounts) are payable from the
Escrow Account, specifying the amount of the payment(s), instruct the
Bank to transfer such amount(s) from the Escrow Account to:-
(a) in the case of an amount due to the Company, to the Escrow
Agent's Account, details of which of which are set out in Part
1 of Schedule 1; and
(b) in the case of an amount due to the Seller, to the Seller's
Account, details of which are set out in Part 2 of Schedule 1.
1675502.05
1
2. Instructions to be given by you to the Bank shall be signed by any one
of Mr C Geffen or Mr B Xxxxxx of Xxxxxxx Xxxxxx Xxxxx or if those named
partners have ceased to be practicable signatories, by any one of two
other partners of your firm as you shall nominate.
3. You shall instruct the Bank to hold the amounts standing to the credit
of the Escrow Account from time to time on deposit at the best rate of
interest available from the Bank for deposits of similar amounts to
those standing to the credit of the Escrow Account and, for quarterly
periods or such lesser period, so that transfers can be made from the
Escrow Account in accordance with this letter, and you shall instruct
the Bank to credit the interest accrued on the amounts in the Escrow
Account to that Escrow Account.
4. The Escrow Agent shall not be liable for any loss or damage in respect
of any act or omission by it in relation to any matter which is the
subject of this letter except any loss or damage arising out of its own
fraud, wilful default or gross negligence.
5. You may rely without enquiry on any Notice (including a facsimile
message) which appears on its face completed in accordance with this
letter. You shall not be required to enquire whether a Notice has been
validly given or executed nor shall you be under any liability to any
person if the Notice has not been validly given or executed. In
accounting to any party for any payment made to you out of the Escrow
Account, you may withhold or deduct any sum which you are obliged by
law to so withhold or deduct (whether in respect of liability to
taxation or otherwise). We authorise you to pay all bank charges,
taxation and other liabilities referable to the operation of the Escrow
Account (including all interest accruing on such Escrow Account) out of
the funds for the time being standing to the credit of the Escrow
Account. You shall not be deemed to be a trustee nor shall you have any
obligations in connection with the Escrow Account or its administration
other than those set out in this letter.
6. The Company shall indemnify the Escrow Agent against all actions,
proceedings, claims, demands, liabilities, costs and expenses which it
may suffer or incur in connection with the performance of its
obligations under this letter, except any arising out of the Escrow
Agent's own fraud, wilful action or gross negligence in making any such
payment or generally in operating the Escrow Account.
7. You may discharge any instruction to pay any sum out of the Escrow
Account by yourself instructing the Bank to do so and you will not be
responsible for any delay or failure on the part of the Bank in
executing any such instruction or for any loss which any of us may
suffer as a result of any action on the part of the Bank in making any
such payment or generally in operating the Escrow Account.
8. For the purpose of this letter "Payment Notice" shall mean a notice in
writing given by letter or facsimile message in the form signed by:-
(a) two directors or one director and the secretary of the Company
in the form or substantially in the form of the draft notice
attached as Appendix A; or
(b) such other persons as may from time to time be notified to you
in accordance with paragraph 11 below in the form or
substantially in the form of the draft notice attached as
Appendix A.
2
9. For the purpose of this letter "SK Europe Notice" shall mean a notice
in writing given by letter or facsimile message in the form signed by:-
(a) two directors or one director and the secretary of the Seller
in the form or substantially in the form of the draft notice
attached as Appendix B; or
(b) such other persons as may from time to time be notified to you
in accordance with paragraph 12 below in the form or
substantially in the form of the draft notice attached as
Appendix B.
10. For the purpose of this letter "Notice" shall mean, as the case may be,
a Payment Notice or a SK Europe Notice or both.
11. The Company may from time to time make changes to the authorised
signatories specified by it by notice to you and SK Europe, signed by
or on behalf of each of the current authorised signatories of that
party, except that in the case of a removal of an authorised
signatory, the notice need not be signed by the signatory to be
removed. In the case of an addition to the authorised signatories, the
notice shall contain a specimen of the signature of the additional
signatory.
12. The Seller may from time to time make changes to the authorised
signatories specified by it by notice to you and the Company, signed
by or on behalf of each of the current authorised signatories of that
party, except that in the case of a removal of an authorised
signatory, the notice need not be signed by the signatory to be
removed. In the case of an addition to the authorised signatories, the
notice shall contain a specimen of the signature of the additional
signatory.
13. Except in accordance with the above arrangements or in accordance with
an order of a competent court, you will not permit any withdrawal to
be made from the Escrow Account.
14. Subject to paragraph 15, this letter shall be governed by and construed
in accordance with the laws of England.
15. Each of the signatories to this letter hereby acknowledges that the
liability of the limited partners in Electra European Fund LP for the
purposes of this letter and otherwise is limited and, notwithstanding
paragraph 11, shall be regulated in accordance with the law of the
jurisdiction in which that partnership is registered or otherwise
constituted.
Please confirm your acceptance of the instructions set out in this letter by
signing and returning to the Buyer and the Seller the enclosed copies of this
letter.
3
Signed by Xxxxx X. Xxxxxxx )
Direcotr ) /s/ For and on behalf of
for and on behalf of ELECTRA ) Electra European Fund (GP)
EUROPEAN FUND LP. ) Limited as Managing General
in the presence of:- ) Partner
/s/ X.X. Xxxx
X.X. Xxxx
Signed by )
for and on behalf of ELECTRA ) /s/ Xxxx Xxxxxx
XXXXXXX PRIVATE EQUITY ) /s/ Xxxxx X. Xxxxxxx
PARTNERS )
in the presence of:- )
Signed by )
for and on behalf of EF NOMINEES ) /s/ Xxxx Xxxxxx
LIMITED ) /s/ Xxxxx X. Xxxxxxx
in the presence of :- )
Signed by )
for and on behalf of SK EUROPE, INC. ) /s/ Xxxxx X. Xxxxxx
in the presence of:- ) Xxxxx X. Xxxxxx, President
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Signed by )
for and on behalf of SAFETY-KLEEN ) /s/ Xxxxx Xxxxxxx
EUROPE LIMITED ) /s/ Xxxxx X. Xxxxxxx
in the presence of :- )
4
/s/ Ashurst Xxxxxx Xxxxx
....................................
Acknowledged on behalf of
Ashurst Xxxxxx Xxxxx
Date: 11/8/00
5
SCHEDULE 1
PART 1
ESCROW AGENT'S ACCOUNT
National Westminster Bank plc
00 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Sort Code 50 - 00 - 00
Account No. 00000000
(or such other account as is nominated
by the Buyer's Solicitors)
PART 2
SELLER'S ACCOUNT
(or such other account as is nominated
by the Seller)
6
APPENDIX A
PAYMENT NOTICE
To: Ashurst Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
("ESCROW AGENT ")
Copy to:
SK Europe, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx
Xxxxxx Xxxxxx of America
29201
Dear Sirs
We refer to the Escrow Account established in your name pursuant to our letter
of instruction dated * 2000 (the "LETTER") in connection with the sale and
purchase of the issued shares and loan stock held by SK Europe, Inc. in
Safety-Kleen Europe Limited and to the sale and purchase agreement dated the
same date as the Letter (the "SALE AND PURCHASE AGREEMENT") in respect of such
issued shares and loan stock.
Pursuant to paragraph 8 of the Letter and in accordance with the terms of the
Sale and Purchase Agreement we hereby represent to you and [the Company/SK
Europe] that we have complied with our obligations under clause 6 of the Sale
and Purchase Agreement and we hereby irrevocably instruct you to authorise the
Bank to transfer from that account on or as soon as practicable after the date
of this letter the amount of (pound symbol)* to the account of [the Escrow Agent
on behalf of the Company]/[the Seller] as specified in the Letter [and the
amount of (pound symbol)* to the account of the Seller] as specified in the
Letter [INSERT DETAILS AS APPROPRIATE] which represents the amount required to
be paid to the [Company/Seller] in accordance with the Sale and Purchase
Agreement.
................................... ..................................
Director of the Safety-Kleen Europe Director/Secretary of Safety-Kleen
Limited Europe Limited
7
Date: Date:
8
APPENDIX B
SK EUROPE NOTICE
To: Ashurst Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
("ESCROW AGENT ")
Copy to:
Safety-Kleen Europe Limited
000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx
Xxxxxx Xxxxxxx XX0 0XX
Dear Sirs
We refer to the Escrow Account established in your name pursuant to our letter
of instruction dated * 2000 (the "LETTER") in connection with the sale and
purchase of the issued shares and loan stock held by SK Europe, Inc. in
Safety-Kleen Europe Limited and to the sale and purchase agreement dated the
same date as the Letter (the "SALE AND PURCHASE AGREEMENT") in respect of such
issued shares and loan stock.
Pursuant to paragraph 9 of the Letter and in accordance with the terms of the
Sale and Purchase Agreement we hereby represent to you and the Company that we
have complied with our obligations under clause 6 of the Sale and Purchase
Agreement and we hereby irrevocably instruct you to authorise the Bank to
transfer from that account on or as soon as practicable after the date of this
letter the amount of (pound symbol) * to the accouNT Of the Seller as specified
in the Letter which represents the amount required to be paid to the Seller in
accordance with the Sale and Purchase Agreement.
.............................. ....................................
Director of the SK Europe Inc. Director/Secretary of SK Europe Inc.
Date: Date:
9
EXHIBIT B
DATED 11 August 2000
------------------
(1) SAFETY-KLEEN EUROPE LIMITED
- and -
(2) SAFETY-KLEEN CORP.
- and -
(3) SAFETY-KLEEN SYSTEMS INC.
- and -
(4) THE MANAGERS
- and -
(5) SK EUROPE, INC.
- and -
(6) ELECTRA PARTNERS EUROPE LIMITED
- and -
(7) THE ELECTRA SUBSCRIBERS
-------------------------------------------------------
DEED OF RELEASE
-------------------------------------------------------
ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000-0000
Fax: 0000-000-0000
BJH/TOH/E450.00023/1675332.DOC
Europe-1675332.08
THIS DEED OF RELEASE is made on 21 August 2000
BETWEEN:-
(1) SAFETY-KLEEN EUROPE LIMITED whose registered office is at 000 Xxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxx XX0 0XX ("SAFETY-KLEEN EUROPE");
(2) SAFETY-KLEEN CORP. whose registered office is 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Xxxxxx Xxxxxx of America
("SAFETY-KLEEN CORP.);
(3) SAFETY-KLEEN SYSTEMS INC. whose registered office is 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Xxxxxx Xxxxxx of America;
("SAFETY-KLEEN SYSTEMS");
(4) THE PERSONS whose names are set out in schedule 1;
(5) SK EUROPE, INC. whose registered office is at 0000 Xxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Xxxxxx Xxxxxx of America (SK EUROPE");
(6) ELECTRA PARTNERS EUROPE LIMITED (previously Electra Xxxxxxx Limited)
whose registered office is at 00 Xxxxxxxx, Xxxxxx, XX0X 0XX; and
(7) THE ELECTRA SUBSCRIBERS whose names and addresses are set out in
schedule 2 ("ELECTRA Subscribers").
RECITALS
(A) Certain of the parties hereto are parties to a Subscription and
Shareholders' Agreement dated 23 December 1998, as amended pursuant to
variation agreements made between such parties in March 1999 (the
"SUBSCRIPTION AGREEMENT"), and certain of the parties hereto are also
parties to (i) a Contribution Agreement, dated as of December 23, 1998
(the "CONTRIBUTION AGREEMENT"), among SK Europe, Safety-Kleen Europe
and Safety-Kleen Corp., (ii) a Trademark Licence, dated as of December
23, 1998 (the "TRADEMARK LICENCE"), between Safety-Kleen Systems and
Safety-Kleen UK Limited, a corporation organised under the laws of the
United Kingdom, and (iii) a Services Agreement, dated as of December
23, 1998, between Safety-Kleen Systems and Safety-Kleen Europe (the
"SERVICES AGREEMENT").
(B) As of the date hereof, Safety-Kleen Europe, SK Europe, Safety-Kleen
Corp., the Electra Subscribers and Electra European Fund LP are
entering into an agreement for the sale and purchase of shares and
loan stock held by SK Europe in Safety-Kleen Europe (the "SALE AND
PURCHASE AGREEMENT").
(C) The parties have agreed to release SK Europe from its obligations
under the Subscription Agreement with immediate effect from the date
hereof upon the terms of this deed.
-1-
NOW THIS DEED WITNESSES AS FOLLOWS:-
1. RELEASE
Safety-Kleen Europe, the Persons whose names are set out in schedule
1, Electra Partners Europe Limited and the Electra Subscribers (each,
a "HOLDER") and their respective affiliates, for themselves and their
respective predecessors, successors and assigns (each, a "RELEASOR"),
in accordance with Section 3.3 of the Sale and Purchase Agreement, and
for other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, hereby release, waive and discharge
Safety-Kleen Corp., Safety-Kleen Systems, SK Europe and their
respective affiliates (each, a "RELEASEE"), from all claims, actions,
causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialities, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages,
judgments, expenses, executions, affirmative defenses, demands and
other obligations or liabilities whatsoever, in law or equity
(together "CLAIMS") which each Releasor now has or ever had or may
have against any Releasee, that are based upon or arise in respect of
Safety-Kleen Corp.'s or any of its affiliates' shareholding or loan
stock holding in Safety-Kleen Europe including, without limitation,
its obligations under the Subscription Agreement; PROVIDED HOWEVER,
that nothing in this deed shall apply to any Claim a Holder has
against a Releasee pursuant to any agreement, arrangement, contract or
understanding between such Holder and such Releasee other than the
Subscription Agreement or Articles of Association of the Company.
2. TERMINATION OF SUBSCRIPTION AGREEMENT
The parties hereto agree that, effective as of the date hereof, the
Subscription Agreement shall cease and terminate with respect to SK
Europe without, subject to clause 1 above, further obligation or
liability to SK Europe or any other Releasees thereunder whether for
preceding or antecedent breach or otherwise with respect thereto.
3. FURTHER ASSURANCES
The parties undertake to each other that they shall forthwith upon
reasonable request of any of the other parties hereto (and at the
requesting parties' cost) execute and deliver such further documents
and deeds as the other parties shall reasonably require in order to
give full effect to the terms of this deed.
4. REPRESENTATIONS AND WARRANTIES
4.1 Each Holder represents, severally, to SK Corp., SK Europe and their
respective affiliates that:
(a) such Holder is the legal owner of the shares in Safety-Kleen
Europe set against such person's name in Schedule 1;
(b) the number of shares set against such person's name in
Schedule 1 is the number of shares currently held by such
Person in Safety-Kleen Europe; and
-2-
(c) other than in the case of a beneficial interest held by
another Holder, no person has any right, title or interest
(beneficial or otherwise) in any of the shares in
Safety-Kleen Europe set against the Holder's name in
Schedule 1 save that Ogier Trustee Limited holds the shares
listed against its name in schedule 1 on trust for the
benefit of the existing and future employees of Safety-Kleen
Europe and its subsidiary companies from time to time.
4.2 Safety-Kleen Europe represents to SK Corp., SK Europe and their
respective affiliates that no person or entity, other than the parties
listed in Schedule 1, is registered as a shareholder of shares in
Safety-Kleen Europe and, except as is provided for in clause 4.1(a)
above, to its knowledge no person or entity, other than the parties
listed in Schedule 1, holds any shares in Safety-Kleen Europe.
5. COUNTERPARTS
This deed may be executed in any number of counterparts by the parties
to it in separate counterparts, each of which when so executed and
delivered shall be an original and so that all counterparts shall
together constitute one and the same instrument.
6. GOVERNING LAW
This deed shall be governed by and construed in accordance with
English law and the parties irrevocably agree that the courts of
England shall have exclusive jurisdiction to hear and decide any suit,
action or proceedings and/or to settle any disputes which may arise
out of or in connection with this deed and, for these purposes, each
party irrevocably submits to the jurisdiction of the English courts.
IN WITNESS whereof this deed has been duly executed on the date first above
written.
-3-
SCHEDULE 1
NAME NUMBER OF SHARES
Xxxxx Xxxxxxx 186,000
Xxxxxxxx Xxxxxxx 48,000
Xxxxxxx Xxxxxxx 66,000
Xxxxxxx Xxxxxxxx 60,000
Xxxxxxx Xxxxxx 75,000
Xxxxxx Xxxxx 10,000
Xxxxx Xxxxx 10,000
Xxxxx Xxxxxx 20,000
Xxxx Xxxxxxxx 10,000
Xxxxxxxx Xxxxxxxx 10,000
Electra Private Equity Partners 2,506,067
EF Nominees Limited 133,933
SK Europe Inc. 2,640,000
Xxxx Xxxxx 20,000
Xxxxxxxx Xxxxx 10,000
Xxxxxxx Xxxxxxxxx 17,100
Xxxxxxx Xxxxxxxxxx/Xxxxx Xxxxxxxxxx 11,900
Xxxxx Xxxxxxxxxx/Xxxxx Xxxxxxxxxx 12,000
Ogier Trustee Limited 75,000
Xxxxx Xxxxxxxxx 34,000
-4-
SCHEDULE 2
THE ELECTRA SUBSCRIBERS
Electra Private Equity Partner
(a United Kingdom limited partnership
established under the Partnership Xxx 0000
and registered under number LP4913)
00 Xxxxxxxx
Xxxxxx XX0X 0XX
(Nominee holders Kingsway
Nominees Limited A/C DESEFPEP)
E F Nominees Limited
00 Xxxxxxxx
Xxxxxx XX0X 0XX
-5-
Signed by )
) /s/ Xxxxx Xxxxxxx
for and on behalf of SAFETY-KLEEN EUROPE ) /s/ Xxxxx X. Xxxxxxx
LIMITED in the presence of:- )
Signed by /s/ Xxxxx X. Xxxxxx )
Xxxxx X. Xxxxxx, Secretary )
)
for and on behalf of SK EUROPE, INC. in the )
presence of:- )
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Signed by /s/ Xxxxx X. Xxxxxx )
Xxxxx X. Xxxxxx, Secretary )
)
for and on behalf of SAFETY-KLEEN CORP. in the )
presence of:- )
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Signed by /s/ Xxxxx X. Xxxxxx )
Xxxxx X. Xxxxxx, Secretary )
)
for and on behalf of SAFETY-KLEEN SYSTEMS )
INC. in the )
presence of:-
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
-6-
Signed by )
) /s/ Xxxxx Xxxxxx
for and on behalf of ELECTRA GP (UK) LIMITED ) /s/ Xxxxx X. Xxxxxxx
as general partner of ELECTRA PRIVATE EQUITY )
PARTNERS )
in the presence of:- )
Signed by )
) /s/ Xxxxx Xxxxxx
for and on behalf of E F NOMINEES LIMITED ) /s/ Xxxxx X. Xxxxxxx
in the presence of:- )
Signed by )
) /s/ Xxxxx Xxxxxx
for and on behalf of ELECTRA PARTNERS ) /s/ Xxxxx X. Xxxxxxx
EUROPE LIMITED in the presence of:- )
Signed by XXXXX XXXXXXX in the presence of:- ) /s/ Xxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
Signed for and on behalf of XXXX XXXXXXXX by his ) /s/ Xxxxx Xxxxxxx
attorney XXXXX XXXXXXX in the presence of:- ) /s/ Xxxxx X. Xxxxxxx
Signed for and on behalf of XXXXXXX XXXXXX by ) /s/ Xxxxx Xxxxxxx
his attorney XXXXX XXXXXXX in the presence of:- ) /s/ Xxxxx X. Xxxxxxx
-7-
Signed for and on behalf of XXXXXXX XXXXXXXX ) /s/ Xxxxx Xxxxxxx
by his attorney XXXXX XXXXXXX in the presence ) /s/ Xxxxx X. Xxxxxxx
of:- )
Signed for and on behalf of XXXXX XXXXXXXXX by ) /s/ Xxxxx Xxxxxxx
his attorney XXXXX XXXXXXX in the presence of:- ) /s/ Xxxxx X. Xxxxxxx
Signed for and on behalf of XXXXXX XXXXXX by his ) /s/ Xxxxx Xxxxxxx
attorney XXXXX XXXXXXX in the presence of:- ) /s/ Xxxxx X. Xxxxxxx
Signed for and on behalf of XXXXXX XXXXX by his ) /s/ Xxxxx Xxxxxxx
attorney XXXXX XXXXXXX in the presence of:- ) /s/ Xxxxx X. Xxxxxxx
Signed for and on behalf of XXXXXXXX XXXXXXX ) /s/ Xxxxx Xxxxxxx
by her attorney XXXXX XXXXXXX in the presence ) /s/ Xxxxx X. Xxxxxxx
of:- )
Signed for and on behalf of XXXXXXX XXXXXXX by ) /s/ Xxxxx Xxxxxxx
his attorney XXXXX XXXXXXX in the presence of:- ) /s/ Xxxxx X. Xxxxxx
-8-
Signed for and on behalf of XXXXXXX ) /s/ Xxxxx Xxxxxxx
THORNBACK by her attorney XXXXX XXXXXXX ) /s/ Xxxxx X. Xxxxxx
in the presence of:- )
Signed for and on behalf of XXXXXXXX XXXXXXXX ) /s/ Xxxxx Xxxxxxx
by her attorney XXXXX XXXXXXX in the presence ) /s/ Xxxxx X. Xxxxxx
of:- )
Signed for and on behalf of XXXXX XXXXX by her ) /s/ Xxxxx Xxxxxxx
attorney XXXXX XXXXXXX in the presence of:- ) /s/ Xxxxx X. Xxxxxx
Signed for and on behalf of XXXX XXXXX by his ) /s/ Xxxxx Xxxxxxx
attorney XXXXX XXXXXXX in the presence of:- ) /s/ Xxxxx X. Xxxxxx
Signed for and on behalf of XXXXXXXX XXXXX by ) /s/ Xxxxx Xxxxxxx
her attorney XXXXX XXXXXXX in the presence of:- ) /s/ Xxxxx X. Xxxxxx
Signed for and on behalf of XXXXXXX )
XXXXXXXXXX/XXXXX XXXXXXXXXX AS TRUSTEES ) /s/ Xxxxx Xxxxxxx
OF XXXX SETTLEMENT by their attorney XXXXX ) /s/ Xxxxx X. Xxxxxx
XXXXXXX in the presence of:- )
/s/ illegible signature
-9-
Signed for and on behalf of CLIVE )
XXXXXXXXXX/XXXXX XXXXXXXXXX AS TRUSTEES ) /s/ Xxxxx Xxxxxxx
OF THORNBACK SETTLEMENT by their attorney XXXXX ) /s/ Xxxxx X. Xxxxxx
BIELSKY in the presence of:- )
/s/ illegible signature
Signed by /s/ Xxxxx X. Willing )
) /s/ Xxxxx X. Willing
for and on behalf of OGIER TRUSTEE LIMITED in ) /s/ illegible signature
the presence of:- )
-10-
EXHIBIT C
DATED 11 August 2000
----------------
SAFETY-KLEEN SYSTEMS, INC.
- and -
SAFETY-KLEEN EUROPE LIMITED
--------------------------------------------------------
DEED OF AMENDMENT
--------------------------------------------------------
ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000 0000
Fax: 0000-000 0000
BJH/TOH/E45000023/1739886.DOC
THIS DEED OF AMENDMENT is made on 11 August 2000
BETWEEN:-
(1) SAFETY-KLEEN SYSTEMS, INC. whose registered office is at 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, Xxxxxx Xxxxxx of America; and
(2) SAFETY-KLEEN EUROPE LIMITED whose registered office is at Safety-Kleen
House, 000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx, XX0 0XX.
RECITALS
(A) The parties hereto are parties to an agreement for the provision of
services dated 23 December 1998 (the "SERVICES AGREEMENT").
(B) The parties have agreed to enter into this deed of amendment to amend
the Services Agreement in the manner set out below.
THE PARTIES HEREBY AGREE AS FOLLOWS:-
1. INTERPRETATION
Terms defined in the Services Agreement shall unless otherwise
specifically defined herein bear the same meaning in this deed.
2. AMENDMENTS
With effect from the date hereof the Services Agreement is amended as
follows:-
2.1 the recitals are amended by inserting the following paragraph as an
additional recital:
"WHEREAS it is intended that Safety-Kleen will provide such selected
computer support services until such time as the Company has procured
computer services of a similar nature to the computer services to be
provided by Safety-Kleen hereunder from an alternative source and it
is intended that the Company shall use reasonable endeavours to obtain
such alternative computer services by 1 June 2001;"
2.2 in section 1.1 of the Services Agreement the words "until the Estimate
Anniversary (as defined herein)" are deleted and replaced with the
words "subject to section 5.6, until 31 December 2001";
2.3 section 1 of the Services Agreement is amended by inserting the
following wording after section 1.3 as a new clause 1.4: "1.4 COMPUTER
SERVICES means the Operational Services and the Financial
Services.";
2.4 section 3(a) of the Services Agreement shall be deleted in its
entirety and replaced with "Intentionally Omitted";
-1-
2.5 in section 3(b) of the Services Agreement, the words "Until the
Estimate Anniversary" are deleted and replaced with the words "Subject
to section 5.6, until 31 December 2001", and the words "which
obligation may require Additional Costs to be incurred, including as a
result of Safety-Kleen's agreement to a modification to a Services
Contract or its procurement of substitute Operational Services or
contract rights, provided that such Additional Costs shall be borne by
the parties in accordance with Section 3(c)" are deleted;
2.6 section 3(c) of the Services Agreement shall be deleted in its
entirety;
2.7 in section 5.1(iv) of the Services Agreement the words "following
eighteen (18) months after the date hereof" are deleted and replaced
with the words "subject to clause 5.6, following 1 June 2001";
2.8 in section 5.2(ii) of the Services Agreement the words "following the
date that Safety-Kleen ceases to hold more than 20 per cent. of the
voting rights of the Company" are deleted and replaced with the words
"following 1 June 2001";
2.9 in section 5.3(b) the words "pursuant to section 5.1 and/or 5.2 above"
are replaced with the words "pursuant to this Agreement";
2.10 section 5 is amended by inserting the following clauses after section
5.4 as a new clause 5.5 and a new clause 5.6:
"5.5 FURTHER ASSURANCES. Safety-Kleen shall, upon reasonable request
from the Company provide, at the Company's expense, such reasonable
assistance as is requested by the Company for the purpose of
facilitating any discussions the Company has with any suppliers to the
Company or Safety-Kleen regarding independent supply to the Company or
any of its affiliates."
"5.6 DISCONTINUANCE OF COMPUTER SERVICES
(i) The Company shall use its reasonable endeavours to procure
services, of a nature similar to the Computer Services (in
terms of scope, frequency and quality), from a party other
than Safety-Kleen ("Alternative Computer Services") by 1
June 2001.
(ii) Following 1 June 2001, if the Company has not secured
Alternative Computer Services it may elect to continue
receiving the Computer Services and Service Contract Rights
by giving notice, on a monthly basis, to Safety-Kleen of its
election to continue to receive such Computer Services and
Service Contract Rights, such notice to be served by no
later than 5 days before 1 June 2001, and thereafter 5 days
before the first day of each subsequent month provided that
Safety-Kleen shall be entitled to elect to cease supplying
Computer Services and Service Contract Rights to the Company
after 31 December 2001 by serving 30 days prior notice on
the Company of its intention to cease supplying such
services.";
2.11 Section 6.1 of the Services Agreement is replaced with the following:
-2-
"In consideration of the Services, the price to be paid by the Company
will, subject to as is hereinafter provided, be $1.00 per individual
service performed (other than with respect to Safety Micron Systems
for which there shall be no fee charged) (the "Service Fee"), provided
that for each year commencing on 1 January 2000 and thereafter the
Service Fee shall be adjusted as of 1 January of such year to reflect
the change in the CPI (as herein defined) from the prior year,
provided further that the Service Fee shall be reduced to $0.75 per
individual service performed as of the Financial Services Termination
Date if the Company has elected to terminate the Financial Services in
accordance with Section 5.1 and provided further that the Service Fee
shall be reduced by an amount to be agreed per individual service
performed if the Company has elected to terminate the accounts
receivable and billing services provided by Safety-Kleen to the
Company by serving 30 days notice on Safety-Kleen of its intention to
cease receiving such services and provided further that the Service
Fee shall be reduced by an amount to be agreed per individual service
performed if the Company has elected to terminate the sales order
processing services provided by Safety-Kleen to the Company by serving
30 days' notice on Safety-Kleen of its intention to cease receiving
such services. In consideration of Safety-Kleen providing the Computer
Services after 1 June 2001 in accordance with Section 5.6(ii), the
Service Fee shall be increased by an additional 25% per individual
service performed after 1 June 2001. The Company shall also reimburse
Safety-Kleen for any out of pocket costs or expenses incurred by
Safety-Kleen in providing the Consulting Services. The Service Fee
payable hereunder shall be payable net of the costs incurred by the
Company, as verified to Safety-Kleen, to ensure that the standard of
the Services is the same as the standard of similar services provided
by Safety-Kleen to the Company or any of its subsidiary companies
prior to 23 December 1998. For purposes of this Agreement, "CPI"
means, the Consumer Price Index - All Urban Consumers (all items) for
the United States as published by the US Department of Labour, Bureau
of Labour Statistics."
2.12 In Section 9.1 the words "with Sections 3, 5.1 and 5.2" are replaced
with the words "with Sections 3 and Section 5".
3. NO FURTHER AMENDMENT
Other than as set out in clause 2 of this deed:
3.1 nothing contained in this deed shall prejudice or affect the rights of
the parties created by the Services Agreement; and
3.2 the Services Agreement, as duly amended by this deed, shall continue
in full force and effect unless and until terminated in accordance
with its terms.
4. FURTHER ASSURANCES
The parties hereto undertake to each other that they shall forthwith
upon the reasonable request of the other party (and at the requesting
parties cost) execute and deliver such further documents and deeds as
the other party shall reasonably require in order to give full effect
to the terms of this deed.
-3-
5. COUNTERPARTS
This deed may be executed in any number of counterparts by the parties
to it on separate counterparts, each of which when so executed and
delivered shall be an original and so that all counterparts shall
together constitute one and the same instrument.
6. GOVERNING LAW
This deed shall be governed by and construed in accordance with
English law and the parties irrevocably agree that the courts of
England shall have exclusive jurisdiction to hear and decide any suit,
action or proceedings and/or to settle any disputes which may arise
out of or in connection with this deed and, for these purposes, each
party irrevocably submits to the jurisdiction of the English courts.
IN WITNESS whereof this deed has been executed and delivered as a deed on the
date first above written.
Signed by ) /s/ Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx, President
for and on behalf of ) /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx
SAFETY-KLEEN SYSTEMS, INC. )
in the presence of:-
Signed by )
for and on behalf of ) /s/ Xxxxx Xxxxxxx
SAFETY-KLEEN EUROPE )
LIMITED )
in the presence of:-
/s/ X. Xxxxxx
-4-
EXHIBIT D
Dated 11 August 2000
SAFETY-KLEEN UK LIMITED
and -
SAFETY-KLEEN CORP.
----------------------------------
SHORT FORM LICENCE AGREEMENT
----------------------------------
ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000 0000
Fax: 0000-000 0000
MAL/LAK
[New York #785159 v2]
CONTENTS
CLAUSE PAGE
1. GRANT...................................................................1
2. QUALITY.................................................................2
3. USE OF THE TRADE MARKS..................................................2
4. TERMINATION.............................................................3
5. CONFIDENTIALITY.........................................................3
6. GENERAL.................................................................3
SCHEDULE 1...................................................................5
Results of Trade Xxxx Searches...............................................5
SCHEDULE 2...................................................................9
Services.....................................................................9
i
THIS AGREEMENT is made on 2000
BETWEEN:-
(1) SAFETY-KLEEN UK LIMITED of Safety-Kleen House, 000 Xxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx XX0 0XX (the "Licensor"); and
(2) SAFETY-KLEEN CORP., a Delaware corporation (the "Licensee").
RECITALS
(A) The Licensor is the proprietor of the registered trade marks and
applications therefor (the "Trade Marks") particulars of which are set
out in schedule 1.
(B) The Licensee wishes to use the Trade Marks solely for the purposes of
providing certain services as described in schedule 2 (the "Services")
at United States military bases in those jurisdictions where the Trade
Marks are registered (the "Military Bases") and the Licensor is willing
to permit the Licensee to do so on the terms and conditions set out
herein.
(C) On June 9, 2000, Licensee and certain of its direct and indirect
subsidiaries each filed a voluntary petition in the United States
Bankruptcy Court for the District of Delaware initiating cases (the
"Cases") under chapter 11 of title 11, United States Code (the
"Bankruptcy Code") and have continued in the possession of their assets
and in the management of their businesses pursuant to Sections 1107 and
1108 of the Bankruptcy Code.
THE PARTIES AGREE AS FOLLOWS:-
1. GRANT
1.1 (a) In consideration of the sum of (pound symbol) l.00 paid by
the Licensee to the Licensor, receipt of which the Licensor
acknowledges, the Licensor hereby grants to the Licensee an
exclusive perpetual royalty-free licence to use the Trade Marks
solely for the purpose of providing the Services at the Military
Bases in accordance with reasonable specifications laid down,
directions given, and information supplied in writing by the
Licensor or by persons authorised to act on behalf of the
Licensor from time to time. This licence is personal to the
Licensee and the benefit of it may not be assigned, sub-licensed
or otherwise transferred (including, without limitation, by
operation of law) or have a trust declared over it, without the
prior written consent of the Licensor, not to be unreasonably
withheld or delayed provided, that Licensee may assign this
Agreement, and its rights and obligations hereunder to any of its
Affiliates, provided, further, that it procures that such
Affiliates are bound by the provisions of this agreement.
(b) For the purposes of this agreement, "Affiliate" means, in
relation to any company, any subsidiary or holding company of
such company or any subsidiary of such holding company,
"subsidiary" and "holding company" having the meaning given to
them in s. 736 of the UK Companies Xxx 0000.
1.2 The Licensee will (at the reasonable request of Licensor and at the
Licensee's cost) join with the Licensor in making applications to any
trade xxxx registries or equivalent in the Jurisdictions where the
Military Bases are situated for the purposes of registering the grant
of this licence.
1.3 The Licensee hereby agrees that upon any amendment or termination of
this agreement the Licensee will at the Licensee's cost execute any
documents that the Licensor may reasonably request the Licensee to
execute for the purpose of applying for variation or cancellation of
the entry of the Licensee on any trade marks registry or equivalent as
a licensee of the Trade Marks.
1.4 For the avoidance of doubt nothing in this licence shall preclude the
Licensor from using the Trade Marks within the countries in which they
are registered (or where applications therefor have been filed) for any
purpose whatsoever including in connection with any products or
services it or its licensees or affiliates provide in or to any
Military Base.
2. QUALITY
2.1 The Licensee undertakes to conform with the high standards of quality
that the public has come to associate with the Trade Marks, and such
reasonable standards as may be prescribed in writing by the Licensor
from time to time and provided to Licensee, in relation to the use of
the Trade Marks under this agreement and, in any event, to conform with
a standard of no lesser quality than that currently applied to
Licensee's products and services.
3. USE OF THE TRADE MARKS
3.1 The Licensee undertakes:-
(a) to use the Trade Marks without alteration or modification and
only in such manner and with such acknowledgement of
proprietorship as shall from time to time be stipulated by the
Licensor;
(b) only to use the Trade Marks in relation to the Services at the
Military Bases; and
(c) that it will not do or omit to do any act, matter or thing
reasonably likely to injure the reputation or distinctiveness of
the Trade Marks.
3.2 The use of the Trade Marks by the Licensee shall at all times be in
keeping with and seek to maintain their distinctiveness and reputation
as determined by the Licensor and the Licensee shall forthwith cease
any use not consistent therewith as the Licensor may reasonably
require.
2
3.3 All use of the Trade Marks by the Licensee shall be for the benefit of
the Licensor and any goodwill accrued to the Licensee in respect of the
Trade Marks shall accrue to and be held in trust by the Licensee for
the Licensor which goodwill the Licensee agrees to assign to the
Licensor at its request at any time whether during or after the term of
this agreement.
4. TERMINATION
4.1 The Licensor may forthwith terminate this agreement by written notice
in any of the following circumstances:-
(a) if the Licensee is in breach of any material obligation or
condition of this agreement, provided that, in the case of a
breach capable of remedy, it shall not have been remedied within
30 days of written notice to the Licensee specifying the breach
and requiring its remedy; or
(b) if after the closing of all of the Cases, the Licensee once
again becomes insolvent, has a receiver appointed over the whole
or any part of its assets, enters into a compromise with its
creditors generally, or has an order made or resolution passed
for it to be wound up (otherwise than in furtherance of a scheme
of amalgamation or reconstruction).
5. CONFIDENTIALITY
The Licensee undertakes to keep confidential all information imparted
to it by the Licensor (save insofar as the same may be in, or come
into, the public domain other than by the fault of the Licensee) and
not to use or disclose the same other than for the purpose of this
agreement or as may be required by law or regulation.
6. GENERAL
6.1 Any notice required to be given by either party to the other in
relation to this agreement shall be in writing and sent by registered
post to the last known address of the recipient and in absence of
acceptable proof of receipt, shall be deemed to have been properly
given and received eight days after posting.
6.2 The headings in this agreement are inserted only for convenience and
shall not affect its construction.
6.3 This agreement (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this
agreement) shall be governed by and construed in accordance with
English law and the English courts shall have exclusive jurisdiction in
relation to it.
6.4 (a) The Licensor agrees that the Licensee shall have no liability,
and the Licensor will indemnify, defend and hold the Licensee
harmless from and against any and all damages, liabilities
and attorneys' fees incurred by the Licensee in defending any
third-party claims
3
undertrade xxxx, unfair competition or deceptive trade
practices arising exclusively out of the use by the Licensee of
the Trade Marks pursuant to and in accordance with the terms of
this agreement; provided, that the Licensee shall be obligated at
all times to use its reasonable endeavours to minimise any such
damages, liabilities or fees, and provided, further, that the
Licensee shall be obligated to notify the Licensor promptly in
writing of any claim of any rights in the Trade Marks, or in any
confusingly similar trade xxxx, service xxxx, trade name, trade
dress or domain name at the Military Bases or any claim that
Licensee's use of the Trade Marks under this Agreement infringes
the trade xxxx rights or other proprietary rights of any other
person or entity. The Licensee shall take no action with respect
to any such infringement, claim or action without the prior
written consent of the Licensor which may be withheld in the
Licensor's absolute discretion. For the avoidance of doubt, the
Licensor shall not be liable to the Licensee for any indirect or
consequential loss or damage including loss of profits,
contracts, business or opportunity (even if such loss or damage
was reasonably foreseeable).
(b) The Licensee agrees to indemnify, defend and hold the Licensor
harmless from and against any and all damages, liabilities and
attorneys' fees incurred by the Licensor in defending any third
party claims arising exclusively from any misuse by the Licensee
of the Trade Marks under this Agreement; provided, that the
Licensor shall be obligated at all times to use its reasonable
endeavours to minimise any such damages, liabilities or fees and
to notify the Licensee promptly in writing after Licensor becomes
aware of any such claim.
6.5 If any provision of this agreement is or becomes (whether pursuant to
any judgment or otherwise) invalid, illegal or unenforceable in any
respect under the law of any jurisdiction:
(a) the validity, legality and enforceability under the law of
that jurisdiction of any other provision; and
(b) the validity, legality and enforceability under the law of any
other jurisdiction of that or any other provision,
shall not be affected or impaired in any way thereby.
6.6 This agreement may only be amended by a document in writing signed by
the parties.
IN WITNESS whereof this agreement has been executed on the date first above
written.
4
SCHEDULE 1
RESULTS OF TRADE XXXX SEARCHES
/
---------------------------------------------------------------------------------------------------------------------
Trade xxxx and number Jurisdiction Proprietor Classes Status
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN Austria Safety Kleen Corp. 3, 7, 37, 40 Registered
128289
--------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN Austria Safety Kleen Corp. 3, 7, 37, 40 Registered
128290
--------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Benelux Safety Kleen Corp. 7 Registered
334880
--------------------------------------------------------------------------------------------------------------------
SK Benelux Safety Kleen Corp. 3, 6, 37, 40 Registered
490763
--------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Benelux Safety Kleen Corp. 3, 7, 37, 40 Registered
490764
--------------------------------------------------------------------------------------------------------------------
THE POWER OF WATER Benelux Safety Kleen Corp. 3 Registered
634449
--------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN France Safety Kleen Corp. 7 Registered
1321801
--------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN France Safety Kleen Corp. 3, 7, 36, 37 Registered
1629087
--------------------------------------------------------------------------------------------------------------------
SK (and design) France Safety Kleen Corp. 3, 7, 36, 37 Registered
1629088
--------------------------------------------------------------------------------------------------------------------
THE POWER OF WATER France Safety Kleen Corp. 3 Registered
98718194
--------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN Germany Safety Kleen Corp. 36, 37, 40 Registered
1032615
--------------------------------------------------------------------------------------------------------------------
5
---------------------------------------------------------------------------------------------------------------------
Trade xxxx and number Jurisdiction Proprietor Classes Status
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN Germany Safety Kleen Corp. 7 Registered
965607.
--------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN (and design) Germany Safety Kleen Corp. 7 Registered
971195
---------------------------------------------------------------------------------------------------------------------
SK (and design) Germany Safety Kleen Corp. 1, 36, 37, 40 Registered
2027900
---------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Germany Safety Kleen Corp. 1, 37, 40 Registered
2029187
---------------------------------------------------------------------------------------------------------------------
WE CARE (and design) Germany Safety Kleen Corp. 35, 42 Registered
2092791
---------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Italy Safety Kleen Corp. 7 Registered
435875
---------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN (and design) Italy Safety Kleen Corp. 3, 7, 40, 42 Registered
603612
---------------------------------------------------------------------------------------------------------------------
SK (and design) Italy Safety Kleen Corp. 3, 40, 42 Registered
603613
---------------------------------------------------------------------------------------------------------------------
WE CARE (and design) Italy Safety Kleen Corp. 42 Registered
686218
---------------------------------------------------------------------------------------------------------------------
THE POWER OF WATER Italy Safety Kleen Corp. 3 Pending
98743
---------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Italy Safety Kleen Corp. 7 Registered
323707
---------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Spain Safety Kleen Corp. 7 Registered
1115714
---------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Spain Safety-Kleen Corp. 37 Registered
1115715
---------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Spain Safety-Kleen Corp. 3 Registered
1115716
---------------------------------------------------------------------------------------------------------------------
6
---------------------------------------------------------------------------------------------------------------------
Trade xxxx and number Jurisdiction Proprietor Classes Status
---------------------------------------------------------------------------------------------------------------------
SK (and design) Spain Safety Kleen Corp. 37 Registered
1605914
---------------------------------------------------------------------------------------------------------------------
SK (and design) Spain Safety Kleen Corp. 40 Registered
1605915
---------------------------------------------------------------------------------------------------------------------
WE CARE (and design) Spain Safety Kleen Corp. 35 Application
1793171
---------------------------------------------------------------------------------------------------------------------
SK (and design) Spain Safety Kleen Corp. 3 Registered
2059514
---------------------------------------------------------------------------------------------------------------------
SK (and design) Spain Safety Kleen Corp. 40 Registered
2059515
---------------------------------------------------------------------------------------------------------------------
SK (and design) Spain Safety Kleen Corp. 7 Registered
1605913
---------------------------------------------------------------------------------------------------------------------
THE POWER OF WATER Spain Safety Kleen Corp. 3 Registered
2148516
---------------------------------------------------------------------------------------------------------------------
SK (and design) United Kingdom Safety-Kleen Corp. 3 Registered
1225688
---------------------------------------------------------------------------------------------------------------------
SK (and design) United Kingdom Safety-Kleen Corp. 7 Registered
1225689
---------------------------------------------------------------------------------------------------------------------
SK (and design) United Kingdom Safety-Kleen Corp. 37 Registered
1274974
---------------------------------------------------------------------------------------------------------------------
SK (and design) United Kingdom Safety-Kleen Corp. 40 Registered
1288712
---------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN (and design) United Kingdom Safety-Kleen Corp. 3 Registered
1225686
---------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN (and design) United Kingdom Safety-Kleen Corp. 7 Registered
1225687
---------------------------------------------------------------------------------------------------------------------
7
---------------------------------------------------------------------------------------------------------------------
Trade xxxx and number Jurisdiction Proprietor Classes Status
---------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN (and design) United Kingdom Safety-Kleen Corp. 37 Registered
1274975
---------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN (and design) United Kingdom Safety-Kleen Corp. 40 Registered
1288711
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN United Kingdom Safety-Kleen Corp. 37 Registered
B1472923
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN (and design) United Kingdom Safety Kleen Corp. 3 Registered
B1472921
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN United Kingdom Safety Kleen Corp. 40 Registered
B1472924
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN (and design) United Kingdom Safety Kleen Corp. 7 Registered
1472922
---------------------------------------------------------------------------------------------------------------------
[New York #785159 v2]
8
SCHEDULE 2
Services
The supplying of products and services at the Military Bases; provided that
such products or services do not compete with products or services supplied or
offered for supply by Licensor and its Affiliates in the European state in which
the Military Base is located.
9
Signed by )
SAFETY-KLEEN UK LIMITED ) /s/ Xxxxx Xxxxxxx
on behalf of ) /s/ Xxxxx X. Xxxxxxx
in the presence of:- )
Signed by )
SAFETY-KLEEN CORP. ) /s/ Xxxxx X. Xxxxxx Secretary
on behalf of ) /s/ Xxxxx X. Xxxxx Xxxxx X. Xxxxx
in the precence of:- )
10
Dated 11 August 2000
SAFETY-KLEEN CORP.
and -
SAFETY KLEEN SYSTEMS, INC.
and -
SAFETY-KLEEN UK LIMITED
----------------------------------
DEED OF TRADE XXXX ASSIGNMENT
----------------------------------
ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000 0000
[New York #784329 v4]
THIS DEED is made on 11 August 2000
BETWEEN:-
(1) Safety-Kleen Corp., a Delaware corporation (the "Assignor");
(2) Safety-Kleen Systems, Inc. a Wisconsin corporation ("SK, Inc."); and
(3) Safety-Kleen UK Limited, a company incorporated under the Laws of
England and Wales under company number 1190039 whose registered office
is at Safety-Kleen House, 000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx XX0 0XX
("the Assignee").
RECITALS
(A) The Assignor is the legal and beneficial owner of: (i) the registered
trade marks set out in Schedule 1 (the "Trade Marks"); and (ii) all
other trade marks (both registered and unregistered and any
applications for registration therefor), trade names, logos and get-up
the same as or similar to the Trade Marks in the Territory (as defined
below) owned by the Assignor and any domain names incorporating any of
them which are registered solely in any Jurisdiction in the Territory
by the Assignor or any of its Affiliates (as defined below) other than
by Safety-Kleen Europe Limited or any of its wholly-owned subsidiaries
(together, the "Other Marks").
(B) The parties to this deed have agreed that the Assignor shall assign the
Trade Marks and the Other Marks to the Assignee on the terms set out
herein and to execute this assignment and that the trade xxxx licence
attached as appendix I (the "Licence") should be terminated in
accordance with the terms of this deed.
(C) On June 9, 2000, Assignor and certain of its direct and indirect
subsidiaries each filed a voluntary petition in the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court")
initiating cases (the "Cases") under chapter 11 of title 11, United
States Code (the "Bankruptcy Code") and have continued in the
possession of their assets and in the management of their businesses
pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
THE PARTIES AGREE AS FOLLOWS:-
1. (a) For good and valuable consideration, the Assignor does HEREBY
ASSIGN and transfer to the Assignee:
(i) with full title guarantee all of its right, title and
interest in and to the Trade Marks; and
(ii) all of its right, title and interest in and to the
Other Marks, or shall procure the assignment and
transfer to the Assignee of all right title and
interest in and to the
Other Marks to the extent they are owned by any of the
Licensor's Affiliates, other than Safety-Kleen Europe
Limited or any of its subsidiaries,
in each case, including all statutory and common law rights
attaching thereto and the right to xxx for past infringements
and to retain any damages obtained as a result of such action.
(b) For the purposes of this deed, "Affiliate" means, in relation
to any company any subsidiary or holding company of such
company or any subsidiary of such holding company,
"subsidiary" and "holding company" having the meaning given to
them in s. 736 of the UK Companies Xxx 0000.
2. For the purposes of this deed, the "Territory" shall mean those
countries listed and described in Schedule 2 attached.
3. The Assignor confirms that this assignment is made with the goodwill
attaching to the Trade Marks and the Other Marks and the goodwill of
the business in which the Trade Marks and the Other Marks have been
used by the Assignor (and the Assignee as licensee under the Licence).
4. The Assignor shall at the expense of the Assignee co-operate with the
Assignee and do and execute or procure that there shall be done and
executed all such documents, deeds, matters, acts and things as the
Assignee may at any time reasonably require properly to vest title in
the Trade Marks and the Other Marks or any one or more of them in the
Assignee or otherwise to perfect the assignment to the Assignee of the
title thereto.
5. The Assignor warrants to the Assignee that it is the sole legal and
beneficial owner of the Trade Marks free and clear of all claims, liens
and any encumbrances of any type whatsoever ("Encumbrances") and:
(a) in respect of each of the registered Trade Marks that:
(i) save for the Assignee, the Assignor has appointed no
registered users or licensees of any of them nor
given any person any permission to use any of them;
(ii) the Assignor has no knowledge of:
(A) any infringement of the registration of any
of them or any reason why any registration
may be capable of being removed from any
trade marks register for any reason
whatsoever;
(B) any third party objecting to the Assignor's
use, registration of or application for
those Trade Marks (as the case may be); or
(C) any unauthorised or infringing use of the
registered Trade Marks.
2
(C) any unauthorised or infringing use of the
registered Trade Marks.
For the purposes of this assignment, "knowledge" means the actual
knowledge of the directors and executive officers of the Assignor after
having made all reasonable enquiries of the Assignor's employees
responsible for the Trade Marks and/or its trade xxxx lawyers with
respect to the Trade Marks.
(b) in respect of each of the unregistered Trade Marks that:
(i) the Assignor has given no permission to any third
party to use any of them; and
(ii) to the Assignor's knowledge they are valid and
subsisting and no proceedings or claims have been
brought or threatened in relation to them.
6. The Assignor further warrants to the Assignee that:
(a) the Assignor has obtained all corporate authorisations and all
other applicable governmental, statutory, regulatory or other
consents, licences, waivers or exemptions required to empower
it to enter into and perform its obligations under this deed
and each document to be executed by it pursuant to or as a
result of this deed;
(b) other than the transfer effected by this deed, there is no
agreement, arrangement or obligation requiring the sale,
transfer or licence, or the grant to a person of the right
(conditional or not) to require the sale, transfer or licence
of the Trade Marks;
(c) it is not a party to any suit, action or proceeding and has
not brought any suit, action or proceeding against any third
party for any cause of action relating to the Trade Marks;
(d) it is not a party to any co-existence, delimitation or
settlement agreement whose terms relate to the use of the
Trade Marks in any way or in any place.
7.1 Each of the parties to this deed irrevocably agrees that the Licence
shall be brought to an end from the date of this deed, and that the
rights and obligations of the parties thereto shall be terminated
forthwith, save that neither party to this deed releases the other
party from any rights that it may have against the other party as a
consequence of a third party bringing a claim against a party and such
claim arises from, is based upon, or is otherwise attributable to an
act or omission of the other party under the Licence.
7.2 Each of the parties agrees that the termination provisions set out in
section 7 of the Licence, including any payments to reimburse the
parties thereto, shall not be enforceable and that other than under
section 7.1 of this deed, no party to the Licence shall have a right of
action, howsoever arising, under the Licence against any other party to
the Licence.
3
8.1 This deed may be executed in any number of counterparts which together
shall constitute one deed. Any party may enter into this deed by
executing a counterpart and this deed shall not take effect until it
has been executed by all parties.
8.2 Delivery of an executed counterpart of a signature page by facsimile
transmission shall take effect as delivery of an executed counterpart
of this deed provided that, if such method is adopted, each party shall
provide the others with the original of such page as soon as reasonably
practicable thereafter.
9.1 Subject to Section 9.3, the parties hereby irrevocably submit to the
exclusive jurisdiction of the United States Bankruptcy Court for the
District of Delaware for the purpose of any action or proceeding
arising out of or relating to this deed and the parties hereby
irrevocably agree that all claims in respect of such action or
proceeding shall be heard and determined in such court. The parties
agree that a final judgement in any action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgement or in any other manner provided by law.
9.2 This deed (and any dispute, controversy, proceedings or claim of
whatever nature arising out of or in any way relating to this deed or
its promotion) shall be governed by and construed in accordance with
English law provided that this clause shall not affect the agreement
between the parties hereto with respect to the governing law of the
terms of the letter between the Assignor and the Assignee known as the
trade xxxx side letter (the "Side Letter").
9.3 In the event the Bankruptcy Court shall not have jurisdiction or shall
decline jurisdiction over any such action or proceeding for any reason
whatsoever, each of the parties to this deed irrevocably agrees that
the courts of England shall have exclusive jurisdiction to hear and
decide any suit, action or proceedings and/or to settle any disputes
which may arise out of or in connection with this deed and, for these
purposes, each party irrevocably submits to the jurisdiction of the
courts of England provided that this clause shall not affect the
agreement between the parties hereto with respect to the applicable
jurisdiction governing the terms of the Side Letter.
4
IN WITNESS whereof this agreement has been executed as a deed on the date first
above written.
Signed as a deed by )
SAFETY-KLEEN CORP. )
Acting by a director and its secretary/two )
directors )
/s/ X X Xxxxxx
..............................................
Signature of director
Xxxxx X. Xxxxxx, Xx.
..............................................
Name of director
/s/ Xxxxx X. Xxxxxx
..............................................
Signature of director/secretary
Xxxxx X. Xxxxxx
..............................................
Name of director/secretary
Signed as a deed by )
SAFETY-KLEEN SYSTEMS, INC. )
Acting by a director and its secretary/two )
directors )
/s/ Xxxxx X. Xxxxxx
..............................................
Signature of director
Xxxxx X. Xxxxxx
..............................................
Name of director
/s/ H. Xxxx Xxxxxxx
..............................................
Signature of director/secretary
H. Xxxx Xxxxxxx
..............................................
Name of director/secretary
2
Signed as a deed by )
SAFETY-KLEEN UK LIMITED )
Acting by a director and its secretary/two )
directors )
/s/ Xxxxx Xxxxxxx
..............................................
Signature of director
Xxxxx Xxxxxxx
..............................................
Name of director
/s/ N. Thomback
..............................................
Signature of director/secretary
Nigel Thomback
..............................................
Name of director/secretary
3
SCHEDULE 1
RESULTS OF TRADE XXXX SEARCHES
/
---------------------------------------------------------------------------------------------------------------------
Trade xxxx and number Jurisdiction Proprietor Classes Status
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN Austria Safety Kleen Corp. 3, 7, 37, 40 Registered
128289
---------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN Austria Safety Kleen Corp. 3, 7, 37, 40 Registered
128290
---------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Benelux Safety Kleen Corp. 7 Registered
334880
---------------------------------------------------------------------------------------------------------------------
SK Benelux Safety Kleen Corp. 3, 6, 37, 40 Registered
490763
---------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Benelux Safety Kleen Corp. 3, 7, 37, 40 Registered
490764
---------------------------------------------------------------------------------------------------------------------
THE POWER OF WATER Benelux Safety Kleen Corp. 3 Registered
634449
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN France Safety Kleen Corp. 7 Registered
1321801
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN France Safety Kleen Corp. 3, 7, 36, 37 Registered
1629087
---------------------------------------------------------------------------------------------------------------------
SK (and design) France Safety Kleen Corp. 3, 7, 36, 37 Registered
1629088
---------------------------------------------------------------------------------------------------------------------
THE POWER OF WATER France Safety Kleen Corp. 3 Registered
98718194
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN Germany Safety Kleen Corp. 36, 37, 40 Registered
1032615
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN Germany Safety Kleen Corp. 7 Registered
965607
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN (and design) Germany Safety Kleen Corp. 7 Registered
---------------------------------------------------------------------------------------------------------------------
*The parties acknowledge that necessary filings have not been made to renew these registrations and therefore they
may be removed from the applicable trademark registry.
5
---------------------------------------------------------------------------------------------------------------------
Trade xxxx and number Jurisdiction Proprietor Classes Status
---------------------------------------------------------------------------------------------------------------------
971195
---------------------------------------------------------------------------------------------------------------------
SK (and design) Germany Safety Kleen Corp. 1, 36, 37, 40 Registered
2027900
---------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Germany Safety Kleen Corp. 1, 37, 40 Registered
2029187
--------------------------------------------------------------------------------------------------------------------
WE CARE (and design) Germany Safety Kleen Corp. 35, 42 Registered
2092791
--------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Italy Safety Kleen Corp. 7 Registered
435875
--------------------------------------------------------------------------------------------------------------------
SK (and design) Italy Safety Kleen Corp. 3, 7, 40, 42 Registered
603612
--------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN (and design) Italy Safety Kleen Corp. 3, 40, 42 Registered
603613
--------------------------------------------------------------------------------------------------------------------
WE CARE (and design) Italy Safety Kleen Corp. 42 Registered
686218
--------------------------------------------------------------------------------------------------------------------
THE POWER OF WATER Italy Safety Kleen Corp. 3 Pending
98743
--------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Italy Safety Kleen Corp. 7 Registered
323707
--------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Spain Safety Kleen Corp. 7 Registered
1115714
--------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Spain Safety Kleen Corp. 37 Registered
1115715
--------------------------------------------------------------------------------------------------------------------
SAFETY-KLEEN Spain Safety Kleen Corp. 3 Registered
1115716
--------------------------------------------------------------------------------------------------------------------
SK (and design) Spain Safety Kleen Corp. 37 Registered
1605914
--------------------------------------------------------------------------------------------------------------------
SK (and design) Spain Safety Kleen Corp. 40 Registered
---------------------------------------------------------------------------------------------------------------------
*The acknowledgment made on the previous page is made also in respect of this xxxx.
6
---------------------------------------------------------------------------------------------------------------------
Trade xxxx and number Jurisdiction Proprietor Classes Status
---------------------------------------------------------------------------------------------------------------------
2059514
---------------------------------------------------------------------------------------------------------------------
SK (and design) Spain Safety Kleen Corp. 40 Registered
2059515
---------------------------------------------------------------------------------------------------------------------
SK (and design) Spain Safety Kleen Corp. 7 Registered
1605913
---------------------------------------------------------------------------------------------------------------------
THE POWER OF WATER Spain Safety Kleen Corp. 3 Registered
2148516
---------------------------------------------------------------------------------------------------------------------
SK (and design) United Kingdom Safety-Kleen Corp. 3 Registered
1225688
---------------------------------------------------------------------------------------------------------------------
SK (and design) United Kingdom Safety-Kleen Corp. 7 Registered
1225689
---------------------------------------------------------------------------------------------------------------------
SK (and design) United Kingdom Safety-Kleen Corp. 37 Registered
1274974
---------------------------------------------------------------------------------------------------------------------
SK (and design) United Kingdom Safety-Kleen Corp. 40 Registered
1288712
---------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN (and design) United Kingdom Safety-Kleen Corp. 3 Registered
1225686
---------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN (and design) United Kingdom Safety-Kleen Corp. 7 Registered
1225687
---------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN (and design) United Kingdom Safety-Kleen Corp. 37 Registered
1274975
---------------------------------------------------------------------------------------------------------------------
SK SAFETY KLEEN (and design) United Kingdom Safety-Kleen Corp. 40 Registered
1288711
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN United Kingdom Safety Kleen Corp. 37 Registered
B1472923
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN (and design) United Kingdom Safety Kleen Corp. 3 Registered
B1472921
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN United Kingdom Safety Kleen Corp. 40 Registered
B1472924
---------------------------------------------------------------------------------------------------------------------
SAFETY KLEEN (and design) United Kingdom Safety Kleen Corp. 7 Registered
---------------------------------------------------------------------------------------------------------------------
7
---------------------------------------------------------------------------------------------------------------------
Trade xxxx and number Jurisdiction Proprietor Classes Status
---------------------------------------------------------------------------------------------------------------------
1472922
---------------------------------------------------------------------------------------------------------------------
8
SCHEDULE 2
Territory
All of the countries within the area indicated on the attached map including,
without limitation, Austria, Belgium, Denmark, Finland, France, Germany, Greece,
Ireland, Italy, Luxembourg, The Netherlands, Portugal, Spain, Sweden, United
Kingdom, Poland, the Czech Republic, Hungary, Switzerland, Norway, Turkey,
Slovakia, Iceland, and any dependent territories of any of the foregoing
countries which are located on the continent of Europe.
Inserted here is a map of the territories indicated on the previous page.
Appendix I
Trademark Licence Agreement
4
TRADEMARK LICENSE AGREEMENT
TRADEMARK LICENSE AGREEMENT, dated as of December 23, 1998 (the
"AGREEMENT"), by and between SAFETY-KLEEN SYSTEMS, INC. a Wisconsin corporation
("S-K"), and Safety-Kleen UK Limited, a corporation organized under the laws of
the United Kingdom ("Licensee").
WITNESSETH:
WHEREAS, SK Europe, Inc., an indirect wholly-owned subsidiary of
S-K ("SKE,"), and Licensee have entered into a Contribution Agreement, dated as
of December 23, 1998 (the "Contribution Agreement"), pursuant to which SKE shall
receive shares of Licensee and other consideration in exchange for its
contribution of the Shares (as defined in the Contribution Agreement) of certain
of its subsidiaries to Licensee; and
WHEREAS, as a condition to the consummation of the Contributions
(as defined in the Contribution Agreement) under the Contribution Agreement, S-K
and Licensee have agreed to enter into a license agreement for the licensing of
the Marks (as defined below) by S-K to Licensee; and
WHEREAS, S-K desires to license and Licensee desires to
acquire a license to use the Marks solely in connection with the Business (as
defined below) of Licensee pursuant to the terms and conditions of this
Agreement; and
WHEREAS, prior to the date hereof, S-K licensed certain of its
intellectual property to the Subsidiaries (as defined herein) pursuant to
certain arrangements (the "Prior Royalty Arrangements") under which the
Subsidiaries made royalty payments to S-K and the parties now wish to terminate
these arrangements and enter into this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, and for good consideration acknowledged by
each of them to be satisfactory and adequate, the parties hereby agree as
follows:
SECTION 1 DEFINED TERMS.
As used in this Agreement, the terms below shall have the
following definitions:
1.1 "AGREEMENT": As defined in the Preamble.
2
1.2 "BUSINESS": The Operation and management of the business of
Licensee as it relates to the parts cleaner and paint gun cleaner service
business as well as the hazardous and/or industrial waste collection and
handling, transportation, treatment, recycling, storage, sale of car care
chemicals and allied products and disposal business and other businesses as
may be approved in writing by S-K in its sole discretion; PROVIDED, however,
that if Licensee enters into a new line of business in accordance with the
Shareholder Agreements and so long as S-K owns, directly or indirectly, more
than thirty-three percent (33 %) of the voting stock of Licensee, such new line
of business shall be deemed a part of the Business.
1.3 "CONFIDENTIAL INFORMATION": Any information and material
designated as proprietary or confidential by either party.
1.4 "CONTRIBUTION AGREEMENT": As defined in the Preamble.
1.5 "CURE PERIOD": As defined in Section 7.2(b).
1.6 "EFFECTIVE DATE": December 23, 1998.
1.7 "LICENSEE INDEMNITEE": As defined in Section 6.2.
1.8 "LOSSES": As defined in Section 6.1.1.
1.9 "LISTING": As defined in the Articles of Association of
Safety-Kleen Europe Limited, adopted by written resolution on December 23, 1998.
1.10 "MARKS": The trademarks and service marks listed on
Exhibit A.
1.11 "MATERIAL BREACH": A breach of this Agreement by Licensee
(whether by act or omission) which, in the reasonable written opinion of S-K,
materially damages the value or validity of the Marks.
1.12 "PRIOR ROYALTY ARRANGEMENTS": As defined in the Preamble.
1.13 "SHAREHOLDER AGREEMENTS": The Subscription and Shareholder
Agreement dated as of the Effective Date, among S-K, Licensee and the managers
identified therein and the Articles of Association of the Licensee adopted as of
the Effective Date.
1.14 "S-K": As defined in the Preamble.
1.15 "SKE": As defined in the Preamble.
3
1.16 "SUBSIDIARIES": The subsidiaries, of Licensee as listed on
Exhibit E, as such Exhibit may be amended from time to time upon the prior
written approval of S-K in it sole discretion; provided, however, if Licensee
acquires or forms an entity in accordance with the Shareholder Agreements and so
long as S-K owns, directly or indirectly, more than thirty-three percent (33%)
of the voting stock of Licensee, such entity shall be deemed a Subsidiary.
1.17 "TRADEMARK LICENSE TERRITORY": As defined in Section 2.3.
SECTION 2 TRADEMARK LICENSE.
2.1 GRANT OF TRADEMARK LICENSE. In consideration of the mutual
covenants, agreements, terms and conditions provided herein, S-K hereby grants
to Licensee an exclusive, perpetual (unless otherwise terminated pursuant to
SECTION 7), nontransferable(except to the extent contemplated by this Agreement)
license to use the Marks and the goodwill associated with the Marks in the
countries set forth in the Trademark License Territory solely in connection with
the Business. S-K retains all rights relating to the Marks not expressly granted
to Licensee hereunder, including without limitation, the right to use the Marks
outside the Trademark License Territory for any purpose whatsoever; PROVIDED,
however, that without the prior consent of Licensee in its sole discretion, S-K
shall not use the Marks inside the Trademark License Territory for any purpose
other than for uses that are related to the businesses conducted by S-K which
involve contracts for on site services at U.S. military bases.
2.2 TERM. The term of this Agreement shall commence as of the
Effective Date of this Agreement and continue in perpetuity unless otherwise
terminated pursuant to SECTION 7.
2.3 TERRITORY. Licensee's right to use the Marks is limited
geographically to the countries listed on Exhibit B attached hereto (the
"Trademark License Territory"), as such Exhibit may be amended from time to time
with S-K's prior written approval in its sole discretion; PROVIDED, however,
that (i) if Licensee wishes to extend the Trademark License Territory to any
country within the European Union, S-K's approval of such country shall not be
unreasonably withheld or (ii) if the Business of the Licensee expands into
additional countries in accordance with the Shareholder Agreements and so long
as S-K owns, directly or indirectly, more than thirty-three percent (33 %) of
the voting stock of Licensee, such country shall be deemed a part of the
Trademark License Territory. S-K shall ensure that the registrations of the
Marks cover and, if applicable, are extended to cover the Trademark License
Territory, to the extent that registrations are available in the Trademark
License Territory, as Licensee may reasonably request, PROVIDED that Licensee
shall bear all costs related to such additional application, issuance and
registration and S-K shall bear any reasonable maintenance costs thereafter.
4
2-4 SUBLICENSE. Licensee shall not sublicense the right to use
any of the Marks without the prior written consent of S-K. Any agreement
pursuant to which Licensee grants such sublicense shall contain clauses that (i)
obligate the sublicensee to the terms and conditions of this Agreement, (ii)
require the Licensee to remain fully obligated by the terms and conditions of
this Agreement and (iii) cause such sublicense to terminate simultaneously with
the termination of this Agreement. Licensee shall provide S-K with a fully
executed copy of each such sublicense agreement. Notwithstanding the provisions
Of this SECTION 2.4, Licensee may sublicense the right to use the Marks to the
Subsidiaries without entering into a written sublicense agreement and without
obtaining S-K's prior written consent; PROVIDED, however, that (i) such
sublicensees shall be obligated by all provisions of this Agreement, (ii)
Licensee shall remain fully obligated and liable under the terms of this
Agreement for such sublicensees' use of the Marks, (iii) such sublicense shall
terminate simultaneously with the termination of this Agreement and (iv) any
sublicense with a particular Subsidiary shall immediately terminate consistent
with the terms of this Agreement upon that Subsidiary ceasing to be a
Subsidiary. Licensee hereby covenants and agrees to immediately terminate any
sublicense agreement, pursuant to the terms of that sublicense agreement, upon.
a breach thereof by the sublicensee of that sublicense agreement.
SECTION 3 QUALITY STANDARDS AND MAINTENANCE.
3.1 QUALITY STANDARDS. The nature and quality of Licensee's
use of the Marks, whether as a corporate name or in the operation of the
Business shall conform to all standards of quality established by S-K as
specified in Exhibit C attached hereto, as such standards of quality may be
reasonably amended from time to time in S-K's sole discretion.
3.2 FORM OF USE. Licensee may use the Marks only in accordance
with the operation of the Business. Licensee shall not use the Marks in
combination with any other trademark, service xxxx, business name, design or
logo without the prior written approval of S-K. Licensee shall (i) use its
reasonable, diligent efforts to identify the Marks as registered trademarks and
services marks, as applicable, by having the appropriate notice of registration
and all other notice and legends associated therewith which conform with the
requirements of law of the countries in which the Marks are licensed to be used,
(ii) maintain the quality of the products and services offered under each Xxxx
as specified in this SECTION 3 of this Agreement and (iii) not adopt or use any
trademark which is confusingly similar or colorable imitation of any Xxxx.
3.3 QUALITY MAINTENANCE. Licensee shall cooperate with S-K in
facilitating S-K's control of the nature and quality of the goods sold or
services provided in connection with any of the Marks. Licensee shall (i)
whenever reasonably requested by S-K in writing, submit to S-K samples of any
goods bearing
5
any of the Marks, (ii) whenever reasonably requested by S-K, submit to S-K
samples of any materials, printed or in any other media, bearing or
incorporating the Xxxx to be distributed in connection with the goods or
services provided in connection with the Business, and (iii) use its reasonable,
diligent efforts to comply with all applicable laws and regulations and obtain
and maintain in effect all appropriate government approvals in connection with
(a) all goods and services provided under the Marks pursuant to this Agreement
and (b) any distribution or advertising relating to all goods and services
provided under the Marks pursuant to this Agreement. Any failure by Licensee to
comply with any of the provisions of this SECTION 3 (including Exhibit C) shall
be deemed a Material Breach and termination provisions set forth in SECTION 7
shall apply.
3.4 INSPECTIONS. S-K or its authorized agent or representative
shall have, upon reasonable written notice, the right to enter and inspect at
any time during working hours the Business premises for the purpose of
ascertaining that Licensee is maintaining the quality control standards in
accordance with this SECTION 3 of this Agreement.
SECTION 4 OWNERSHIP OF MARKS: INFRINGEMENT ACTIONS.
4.1 OWNERSHIP OF MARKS. Licensee agrees that all right and
title in the Marks are the exclusive property of S-K and that all use of the
Marks and all goodwill connected therewith shall inure to the sole benefit of
S-K. Licensee has no right, title or interest in or to any of the Marks, other
than the. privilege and license during the term of this Agreement to display and
use the same according to the provisions of this Agreement.
4.2 ASSERTION OF CLAIM. Licensee now asserts no claim and will
hereafter assert no claim to any goodwill, reputation or ownership of the Marks
by virtue of the licensed use hereof or otherwise. Licensee agrees that at any
time it will not knowingly do or knowingly permit to be done or knowingly omit
to do any act in derogation of the rights of S-K in connection with the Marks or
whereby any Xxxx xxx become invalidated or impaired in any way either during the
term of this Agreement or thereafter. Licensee shall not do any act that uses
any Marks to knowingly infringe the intellectual property rights of any other
person.
4.3 INFRINGEMENT. Each of S-K and Licensee agrees upon becoming
aware thereof to promptly notify the other party in writing of (i) any
conflicting uses of, or any applications or registrations to use, any xxxx, name
symbol, device or word which would constitute an act of infringement or of
unfair competition in relation to the Marks or (ii) any wrongful use or
infringement of the Marks which may cause any of the Marks to become forfeited,
abandoned or dedicated to the public, including, without limitation, the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office or
6
any court or tribunal in the Trademark License Territory regarding S-K's
ownership or the validity of, any of the Marks or S-K's right to register the
same or to own and maintain the same.
4.3.1 S-K shall have the first right, but not the obligation, to
institute, prosecute and control any action or proceeding with respect to any
such infringement, unfair competition or wrongful use of any of the Marks by
counsel of its own choice. Licensee shall fully cooperate with S-K at S-K's
request in the prosecution of such action or proceeding. S-K shall reimburse
Licensee for all reasonable costs incurred by Licensee in connection with -such
cooperation. If S-K reasonably determines that Licensee is an indispensable
party to the action, Licensee hereby consents to be joined. In such event,
Licensee shall have the right to be represented in that action by counsel of its
own choice and at Licensee's expense; PROVIDED, however, that Licensee may not
enter into any settlement, consent judgment, other voluntary final disposition
or appeal any judgment of any such action without the prior written consent of
S-K, such approval not to be unreasonably withheld.
4.3.2 If S-K determines against bringing an action or
proceeding within a period of thirty (30) days after receiving written notice
from Licensee of any infringement of the Marks, Licensee shall have the right to
bring and control any such action by counsel of its own choice and expense upon
S-K's prior written approval, such approval not to be unreasonably withheld;
PROVIDED, however, that Licensee may not enter into any settlement, consent
judgment, other voluntary final disposition or appeal any judgment of any such
action or proceeding without the prior written consent of S-K, such approval not
to be unreasonably withheld.
SECTION 5 REPRESENTATIONS AND WARRANTIES.
5.1 REPRESENTATION AND WARRANTY. S-K represents and warrants
that (i) it owns or possesses adequate and enforceable licenses or other rights
to license the Marks listed on Exhibit A, (ii) except as set forth in the
disclosure schedules to the Contribution Agreement, to S-K's knowledge no Xxxx
infringes upon or otherwise violates a registered trademark of any third party,
(iii) except as set forth in the disclosure schedules to the Contribution
Agreement, there are no actions or proceedings pending or, to S-K's knowledge,
threatened challenging, and, to S-K's knowledge, no third party is infringing or
otherwise violating any Xxxx and (iv) it has paid and will continue to pay
during the term of this Agreement all fees and take all other steps which are
reasonably necessary to maintain the Marks and the A4arks which are registered
pursuant to SECTION 2.3, subject to the provisions of SECTION 5.2.
5.2 MAINTENANCE OF MARKS. S-K shall not knowingly take or omit
to take any action which would subject any of the Marks listed on Exhibit A to
being declared invalid or to being canceled or deemed abandoned in any
jurisdiction unless
7
S-K has a valid business purpose to do so. In the event S-K decides to abandon
or not to continue to maintain any registration of a Xxxx, and X-X consents to
the assignment of such registration to Licensee, such consent not to be
unreasonably withheld, S-K shall assign such Marks to Licensee for a nominal
amount, PROVIDED, that Licensee shall bear all costs related to such assignment,
including all legal, administrative and filing costs.
SECTION 6 INDEMNIFICATION; LIMITATION OF LIABILITY.
6.1 INDEMNIFICATION BY LICENSEE.
6.1.1 Licensee shall fully indemnify and hold harmless
S-K and its officers, directors, shareholders, employees and agents (each, an
"S-K INDEMNITEE") from any and all liability, claims, causes of action, suits,
losses, damages and expenses (including reasonable attorneys' fees and expenses)
(the "LOSSES") for which any S-K Indemnitee may become liable or may incur or be
compelled to pay in any action or claim against any such S-K Indemnitee by
reason of any acts that may be committed or suffered by Licensee or any of its
affiliates, agents or employees arising from and to the extent caused by
Licensee's, its sublicensees', including without limitation their respective
employees, agents and representatives, use of the Marks hereunder or any breach
of any covenant, agreement or obligation of Licensee contained in this
Agreement, except to the extent any Losses arise from any beach of this
Agreement by S-K.
6.1.2 Licensee shall indemnify and hold each S-K
Indemnitee harmless from and against the payment of any and all personal
property, sales, use, value added, excise, customs duties, and all other taxes
of any kind which may be imposed, levied, assessed or charged on or against any
products, materials, or services leased, subleased, sold or furnished by
Licensee hereunder.
6.1.3 Licensee acknowledges that Licensee and its agents,
employees and representatives are solely responsible to Licensee's customers for
the services rendered by Licensee in carrying on the Business, and that the
responsibility of Licensee toward its customers for wrongful omissions or
commissions by Licensee or Its agents, employees or representatives shall remain
the continuing obligation of Licensee after termination of this Agreement for
any reason.
6.2 INDEMNIFICATION BY S-K. S-K shall fully indemnify and hold
harmless Licensee and its officers, directors, shareholders, employees and
agents (each, a "LICENSEE INDEMNITEE") from any and all Losses for which any
Licensee Indemnitee may become liable or may incur or be compelled to pay in any
action or claim against any such Licensee Indemnitee by reason of any acts that
may be committed or suffered by S-K or any of its affiliates (other than the
Company or the Subsidiaries), agents or employees arising from and to the extent
caused by S-K's,
8
including without limitation S-K's employees, agents and representatives, use of
the Marks outside of the Trademark License Territory or any breach of any
covenant, agreement or obligation of S-K contained in this Agreement, except to
the extent any losses arise from any breach of this Agreement by Licensee,
6.3 LIMITATION OF LIABILITY. Except as may arise pursuant to
the indemnification contained in the Contribution Agreement, neither party shall
be liable for any incidental, indirect, special or consequential damages, or for
lost profits, savings or revenues of any kind relating to the Marks.
SECTION 7 TERM AND TERMINATION
7.1 IMMEDIATE TERMINATION. In the event that any government or
any governmental authority prevents the performance by Licensee or S-K of any of
their respective obligations under any portion of this Agreement, such portions
thereof so affected by the intervention shall immediately terminate In such
event, the remainder of the Agreement not affected by the terminated portions
thereof shall remain in full force and effect.
7.2 TERMINATION FOR MATERIAL BREACH. (a) In the event of a
Material Breach by Licensee of any term of this Agreement, whether or not such
Material Breach is curable and notwithstanding any obligations to cure such
breach under SECTION 7.2(b), S-K shall have the right to immediately terminate
this Agreement if Licensee has committed two other Material Breaches within the
previous twenty-four (24) month period.
(b) If Licensee has committed a Material Breach and if such
breach is curable in the reasonable judgment of S-K, Licensee shall be required
to cure such breach within thirty (30) days following receipt of written notice
by S-K of the Material Breach, provided that if Licensee, in gOOD faith, begins
efforts to cure such breach within such thirty days and continues to diligently
do so, Licensee shall have an additional sixty (60) day period thereafter to
cure such breach (the "Cure Period") and if Licensee has not cured such breach
within the Cure Period, S-K shall have the right to immediately terminate this
Agreement whether or not Licensee has committed ;any Material Breaches within
the previous twenty-four (24) month period.
7.3 CHANGE OF CONTROL. S-K may terminate the Agreement upon
the earlier of (i) three (3) years following a Listing or any time thereafter,
PROVIDED, however, at such time S-K shall provide Licensee with a two-year
notice of termination or (ii) at any time S-K ceases to own, directly or
indirectly, more than thirty-three percent (33%) of the voting stock of the
Licensee, PROVIDED, however, in all of the foregoing events S-K shall provide
Licensee with a two-year notice of termination, in which such two-year period
Licensee shall systematically cease all use
9
of the Marks and, in any event, at the end of such two-year period Licensee
shall have ceased all use of the Marks.
7.4 EFFECT OF TERMINATION.
7.4.1 TERMINATION OF SECTION 7.1 OR 7.2. Upon the termina-
tion of any or all of the provisions of this Agreement as provided for in
SECTIONS 7.1 and 7.2 above, (i) all rights granted to Licensee by S-K under this
Agreement shall automatically revert to S-K, (ii) Licensee shall immediately
discontinue any and all use of the rights and privileges granted to it under
this Agreement, PROVIDED, however with respect to machinery and parts thereof
branded with the affected Marks, Licensee shall use its reasonable, diligent
efforts to replace the Marks with a xxxx not confusingly similar to the Marks as
soon as practicable, but no later than twelve (12) months after the termination
date, and shall not thereafter use the Marks or any confusingly similar marks,
names or designs but excluding color schemes, and (iii) Licensee shall provide
S-K with an executed certificate stating that Licensee has complied with the
requirements of this SECTION 7.4.1.
7.4.2 TERMINATION BY SECTION 7.3. Upon the termination
of the Agreement as provided in SECTION 7.3, (i) all rights granted to Licensee
by S-K under this Agreement shall automatically revert to S-K, (ii) Licensee
shall promptly discontinue any and all use of the rights and privileges granted
to it under this Agreement as soon as practicable, but, in any event, no later
than the date of such termination and shall not thereafter use the Marks or any
confusingly similar marks, names or designs but excluding color schemes and
(iii) Licensee shall provide S-K with an executed certificate stating that
Licensee has complied with the requirements of this SECTION 7.4.2. S-K shall
reimburse Licensee up to a total of one million dollars ($1,000,000) for
Licensee's reasonable costs incurred solely in connection with complying with
the requirements of this SECTION 7.4.2.
SECTION 8 LICENSE FEES.
8.1 LICENSE FEES. In consideration of the licenses granted by
S-K under this Agreement, Licensee will pay to S-K on the date of this Agreement
a license fee of(pound)9,000,000.
10
SECTION 9 CONFIDENTIALITY.
9.1 All Confidential Information received by either party
affiliates shall be protected by such party in strict confidence. Each party
hereto agrees to disclose the other party's Confidential Information only to
employees, directors or officers who have a need to know such information and
potential successors and assigns pursuant to SECTION 10.3 and shall require any
person to whom it must disclose Confidential Information to sign agreements
consistent with the terms set forth herein. Neither party shall disclose the
other party's Confidential information unless (i) S-K or Licensee is compelled
by law or by order from a court of competent jurisdiction to do so, (ii) the
Confidential Information has entered or enters the public domain through no
fault of either party, (iii) the Confidential Information was already known by
the receiving party before receipt from the disclosing party, or is developed
independently by the receiving party without breach of this Agreement, in either
case as shown by contemporaneous written records or (iv) the Confidential
Information is received by the receiving pay from a third party under no
confidentiality obligation. In the event that either party is compelled by law
to disclose the other party's Confidential Information, to the extent permitted
by law no such disclosure shall occur prior to the giving of written notice to
the other party, and such other party shall be given an opportunity to contest
the disclosure in a manner that does not impose liability on the party that is
compelled by law. In the event that either party is compelled by law or by order
of a court of competent jurisdiction to disclose the other party's Confidential
Information, the part required to disclose shall only disclose the portion of
the other party's Confidential Information to the extent required by law. Each
party acknowledges and agrees that due to the unique nature of the Confidential
Information, there can be no adequate remedy at law for any breach of its
obligations hereunder, that any such breach will result in irreparable harm to
the other party, and, therefore, that the other party will be entitled to
injunctive relief to prevent any breach or threatened breach of this SECTION 9
and to specific enforcement of the terms set forth herein, in addition to any
other remedies at law or in equity that may be available. The obligations set
forth in this Section shall survive termination of this Agreement.
SECTION 10 MISCELLANEOUS.
10.1 NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing and shall be deemed to have been duly
given when delivered in person, by overnight courier or by facsimile to the
respective parties as follows:
11
If to Licensee, to:
Safety-Kleen UK Limited
000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx XX0 0XX
Xxxxxxx
Attn: Xxxxx Xxxxxxx
Facsimile: 011-44-181-490-3856
If to S-K, to:
Safety-Kleen Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx
with copies to:
Xxxxxxx X. Xxxxxxxxx, Esq.
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Safety-Kleen Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx
or such other address or facsimile number as such party may hereafter specify
for the purpose by written notice to the other parties hereto. Each such notice,
request or other communication shall be effective (i) if delivered in person,
when such delivery is made at the address specified in this SECTION 10.1; (ii)
if delivered by overnight courier, the next business day after such delivery is
sent to the address specified in this SECTION 10.1; or (iii) if delivered by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this SECTION 10.1 and the appropriate confirmation is received.
10.2 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of all the parties.
10.3 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective
12
successors and assigns PROVIDED that notwithstanding any other provision of this
Agreement, (i) Licensee may grant security over or assign by way of security all
or any of its rights under this Agreement for the purposes of or in connection
with the financing (whether whole or in part) by Licensee of the transactions
contemplated by the Contribution Agreement or any of Licensee's or its
subsidiaries' working capital requirements and (ii) Licensee's liquidator or
administrator, or any receiver or other person or entity appointed to enforce
any of such security may enter into any other assignments or transfers of any of
Licensee's rights under this Agreement.
10.4 GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the law of the State of New York applicable to
agreements entered into and to be performed wholly within such State.
10.5 JURISDICTION. Each of the parties hereto (a) consents to
submit itself to the personal jurisdiction of any federal court located in the
State of New York or any New York state court in the event any dispute arises
out of this Agreement or any of the transactions contemplated by this Agreement,
(b) agrees that it will not attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court and agrees that it will
not bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a federal or state court sitting in
the State of New York.
10.6 COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when one or more counterparts have been
signed by each and all of the parties and delivered to each and all of the other
parties.
10.7 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This
Agreement and the other agreements referred to herein or executed
contemporaneously herewith constitute the entire agreement, and supersede all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter of this Agreement. No representation,
inducement, promise, understanding, condition or warranty not set forth herein
has been made or relied upon by any party hereto. This Agreement is not intended
to confer upon any Person other than the parties hereto any rights or remedies.
10.8 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.9 TERMINATION OF PRIOR ROYALTY ARRANGEMENTS. The parties
agree that the Prior Royalty Arrangements are hereby terminated and are hereof
no further force and effect and the parties have no further obligations
thereunder.
13
10.10 EXHIBITS. Exhibit references contained in this Agreement
are for convenience only and matters disclosed on any one schedule shall be
deemed incorporated into each other schedule to which it would reasonably be
deemed relevant as a result of a review of the description of the items set
forth on the schedules to this Agreement.
10.11 SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement or any other such instrument.
10.12 WAIVER OF A JURY TRIAL. EACH OF THE LICENSEE AND S-K
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OF THE TRANSACTIONS CONTEMPLATED HEREBY.
10.13 SURVIVAL. The terms of SECTION 4, 6, 9 AND 10 shall
survive any termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on this 23rd day of December, 1998.
SAFETY-KLEEN SYSTEMS, INC.
By: /S/ XXXX X. XXXXXXXXX
--------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior VP and CFO
SAFETY-KLEEN UK LIMITED
By: /s/ XXXX X. XXXXXXXXX
--------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Senior VP and CFO
Appendix II
Attachment to the Trademark Licence Agreement
5
EXHIBIT A
---------
MARKS
-----
See attached chart.
AUSTRIA - REGISTRATIONS
--------------------------------------------------------------------------------
FILE EXPIRY
REG. NO. TRADEMARK DATE DATE GOODS/SERVICES
--------------------------------------------------------------------------------
128,289 SAFETY-KLEEN 11/20/89 11/30/99 Cleaning and degreasing solvent for
industrial use; mechanical parts
cleaning units comprising a solvent
reservoir, parts sink, and a
solvent circulating pump and parts
of such apparatus; leasing of
cleaning apparatus for cleaning
mechanical parts and components and
periodic renewal of solvent
furnished with the apparatus;
cleaning and recycling services,
namely, removing, cleaning, and
replacing solvent and parts washers
used in service, maintenance,
repair and manufacturing facilities
--------------------------------------------------------------------------------
128,290 SK LOGO 11/20/89 11/30/99 Cleaning and degreasing solvent for
industrial use; mechanical parts
cleaning units comprising a solvent
reservoir, parts sink, and a
solvent circulating pump and parts
of such apparatus; leasing of
cleaning apparatus for cleaning
mechanical parts and components and
periodic renewal of solvent
furnished with the apparatus;
cleaning and recycling services,
namely, removing, cleaning, and
replacing solvent and parts washers
used in service, maintenance,
repair and manufacturing facilities
--------------------------------------------------------------------------------
RENEWABLE EVERY TEN (10 YEARS)
Austria
BENELUX COUNTRIES - REGISTRATIONS
--------------------------------------------------------------------------------
FILE EXPIRY
REG. NO. TRADEMARK DATE DATE GOODS/SERVICES
--------------------------------------------------------------------------------
334,880 SAFETY-KLEEN 09/18/75 09/18/05 Machines adapted to wash automotive
aircraft and industrial parts
--------------------------------------------------------------------------------
490,763 SK LOGO 11/21/90 11/21/00 Cleaning and degreasing solvents
industrial use; sinks; cleaning
apparatus for cleaning in service,
maintenance, repair and manu-
facturing facilities; parts and
components for cleaning units,
including a solvent reservoir and a
solvent circulating pump, their
parts and accessories not included
in other classes; leasing of clean-
ing apparatus for cleaning
mechanical parts and components;
maintenance and repair of these
apparatus, including cleaning and
replacing solvent and parts
washers, cleaning services;
recycling services
--------------------------------------------------------------------------------
Benelux Countries
--------------------------------------------------------------------------------
490,764 SAFETY-KLEEN 11/21/90 11/21/00 Cleaning and degreasing solvents
for industrial use; cleaning
apparatus for cleaning in service,
maintenance, repair and
manufacturing facilities; leasing
of cleaning apparatus for cleaning
mechanical parts and components;
maintenance and repair of these
apparatus, including cleaning and
replacing solvent and parts
washers; cleaning services;
recycling services
--------------------------------------------------------------------------------
RENEWABLE EVERY TEN (10) YEARS
INCLUDES BELGIUM, LUXEMBOURG AND THE NETHERLANDS
PENDING APPLICATION
--------------------------------------------------------------------------------
Serial No. Trademark Filing Date Goods/Services
--------------------------------------------------------------------------------
910,190 THE POWER OF WATER 02/12/98 Aqueous cleaning solution
--------------------------------------------------------------------------------
Benelux Countries
FRANCE - REGISTRATIONS
--------------------------------------------------------------------------------
FILE EXPIRY
REG. NO. TRADEMARK DATE DATE GOODS/SERVICES
--------------------------------------------------------------------------------
1,321,089 SAFETY-KLEEN 09/22/75 09/22/05 Machines, in particular machines
for cleaning parts of vehicles
--------------------------------------------------------------------------------
1,629,087 SAFETY-KLEEN 11/22/90 11/22/00 Cleaning and degreasing solvents
for industrial use; leasing of
cleaning apparatus for cleaning
mechanical parts and components and
periodic renewal of solvent
furnished with the apparatus;
cleaning and recycling services,
namely, removing, cleaning and
replacing solvent and parts washers
used in service, maintenance,
repair and manufacturing facilities
--------------------------------------------------------------------------------
1,629,088 SK LOGO 11/22/90 11/22/00 Cleaning and degreasing solvents
for industrial use; leasing of
cleaning apparatus for cleaning
mechanical parts and components and
periodic renewal of solvent
furnished with the apparatus;
cleaning and recycling services,
namely, removing, cleaning and
replacing solvent and parts washers
used in service, maintenance, repar
and manufacturing facilities;
mechanical parts cleaning units
comprising a solvent reservoir,
parts sink and solvent circulating
pump
--------------------------------------------------------------------------------
98/718,194 THE POWER OF 02/16/98 02/16/08 Aqueous cleaning solution
WATER
--------------------------------------------------------------------------------
RENEWABLE EVERY TEN (10) YEARS
France
GERMANY - REGISTRATIONS
--------------------------------------------------------------------------------
FILE EXPIRY
REG. NO. TRADEMARK DATE DATE GOODS/SERVICES
--------------------------------------------------------------------------------
965,607 SAFETY-KLEEN 10/09/75 10/09/05 Washing apparatus, especially for
machines and vehicle pats; parts of
aforementioned washing apparatus
--------------------------------------------------------------------------------
971,195 SK LOGO 09/14/76 09/14/06 Washing apparatus, especially for
machines and vehicle pats; parts of
aforementioned washing apparatus
--------------------------------------------------------------------------------
1,032,615 SK LOGO 07/08/81 07/08/01 Renting and leasing of cleaning and
washing apparatus, especially for
machine parts and vehicle parts;
installation, repair and
maintenance of cleaning and washing
apparatus; cleaning and recycling
of used cleaning agents and
solvents for re-use in cleaning and
washing apparatus
--------------------------------------------------------------------------------
2,027,900 SK LOGO 11/12/90 11/30/00 Chemical products for industrial
purposes, particularly solvents for
cleaning and/or degreasing
purposes; removing, cleaning and
recycling of cleaning agents and
solvents used in cleaners and
washers for mechanical parts;
renting and leasing of cleaners for
mechanical parts as well as
periodic renewal of cleaning agents
and solvents used in cleaners
--------------------------------------------------------------------------------
Germany
--------------------------------------------------------------------------------
2,029,187 SAFETY-KLEEN 11/12/90 11/30/00 Chemical products for industrial
purposes, particularly solvents for
cleaning and/or degreasing
purposes; removing cleaning and
recycling of cleaning agents and
solvents used in cleaners and
washers for mechanical parts
--------------------------------------------------------------------------------
2,092,791 WE CARE & 12/13/93 12/31/03 Promoting public awareness, in
DESIGN particular making people aware of
the need for recycling petroleum
products as well as consultation
relating to the recycling of
petroleum products
--------------------------------------------------------------------------------
RENEWABLE EVERY TEN (10) YEARS FROM FILING DATE
Germany
ITALY - REGISTRATIONS
--------------------------------------------------------------------------------
FILE EXPIRY
REG. NO. TRADEMARK DATE DATE GOODS/SERVICES
--------------------------------------------------------------------------------
435,875 SAFETY-KLEEN 08/25/83 08/25/03 Devices for washing parts, namely
automotive, aircraft, or industrial
machine parts washing devices
--------------------------------------------------------------------------------
603,612 SK LOGO 12/13/90 12/13/00 Cleaning and degreasing solvents
for industrial use; leasing of
cleaning apparatus for cleaning
mechanical parts and components and
periodic renewal of solvent
furnished with the apparatus;
cleaning and recycling services,
namely, removing, cleaning and
replacing solvent and parts washers
used in service, maintenance, repar
and manufacturing facilities;
mechanical parts cleaning units
comprising a solvent reservoir,
parts sink and solvent circulating
pump and parts of such apparatus
--------------------------------------------------------------------------------
603,613 SAFETY-KLEEN 12/13/90 12/13/00 Cleaning and degreasing solvents
for industrial use; leasing of
cleaning apparatus for cleaning
mechanical parts and components and
periodic renewal of solvent
furnished with the apparatus;
cleaning and recycling services,
namely, removing, cleaning and
replacing solvent and parts washers
used in service, maintenance, repar
and manufacturing facilities;
--------------------------------------------------------------------------------
Italy
--------------------------------------------------------------------------------
686,218 WE CARE & 11/19/93 11/19/13 Promoting public awareness of the
DESIGN need for responsible recycling of
petroleum products and consultation
relating thereto.
--------------------------------------------------------------------------------
RENEWABLE EVERY TWENTY (20) YEARS FROM THE DATE OF FILING
PENDING APPLICATION
--------------------------------------------------------------------------------
Serial No. Trademark Filing Date Goods/Services
--------------------------------------------------------------------------------
TO98C000743 THE POWER OF WATER 03/06/98 Aqueous cleaning solution
--------------------------------------------------------------------------------
Italy
PORTUGAL - REGISTRATIONS
--------------------------------------------------------------------------------
ISSUE EXPIRY
REG. NO. TRADEMARK DATE DATE GOODS/SERVICES
--------------------------------------------------------------------------------
233,421 SAFETY-KLEEN 08/21/91 08/21/01 Cleaning and degreasing solvent for
industrial use
--------------------------------------------------------------------------------
233,422 SAFETY-KLEEN 08/21/91 08/21/01 Mechanical parts cleaning units
comprising a solvent reservoir, a
parts sink, and a solvent
circulating pump, and parts of such
apparatus
--------------------------------------------------------------------------------
233,423 SAFETY-KLEEN 08/21/91 08/21/09 Leasing of cleaning apparatus for
cleaning mechanical parts and
components, and periodic renewal of
solvent furnished with apparatus
--------------------------------------------------------------------------------
262,404 SK LOGO 08/20/92 08/20/02 Cleaning and degreasing solvent for
industrial use
--------------------------------------------------------------------------------
262,405 SK LOGO 08/20/92 08/20/02 Mechanical parts cleaning units
comprising a solvent reservoir, a
parts sink, and a solvent
circulating pump, and parts of such
apparatus
--------------------------------------------------------------------------------
262,406 SK LOGO 02/20/92 08/20/02 Leasing of cleaning apparatus for
cleaning mechanical parts and
components, and periodic renewal of
solvent furnished with apparatus
--------------------------------------------------------------------------------
268,675 SK LOGO 01/06/92 01/06/03 Cleaning and recycling services,
namely, removing, cleaning and
replacing solvent and parts washers
using service, maintenance, repair
and manufacturing facilities
--------------------------------------------------------------------------------
Portugal
--------------------------------------------------------------------------------
273,094 SAFETY-KLEEN 03/26/93 03/26/03 Cleaning and recycling services,
namely, removing, cleaning and
replacing solvent and parts washers
using service, maintenance, repair
and manufacturing facilities
--------------------------------------------------------------------------------
RENEWABLE EVERY TEN (10) YEARS FROM THE DATE OF REGISTRATION
Portugal
SPAIN - REGISTRATIONS
--------------------------------------------------------------------------------
ISSUE EXPIRY
REG. NO. TRADEMARK DATE DATE GOODS/SERVICES
--------------------------------------------------------------------------------
1,115,714 SAFETY-KLEEN 10/05/87 10/05/07 Mechanical parts cleaning units
comprising a solvent reservoir, a
parts sink, and a solvent
circulating pump, and parts of such
apparatus
--------------------------------------------------------------------------------
1,115,715 SAFETY-KLEEN 03/17/86 03/17/06 Leasing of cleaning apparatus for
cleaning mechanical parts and
components, and periodic renewal of
solvent furnished with apparatus
--------------------------------------------------------------------------------
1,115,716 SAFETY-KLEEN 10/20/87 10/20/07 Cleaning and degreasing prepara-
tions for industrial use
--------------------------------------------------------------------------------
1,605,914 SK LOGO 12/13/90 12/13/00 Leasing of cleaning apparatus for
(Filing cleaning mechanical parts and
date) components, and periodic renewal of
solvent furnished with apparatus
--------------------------------------------------------------------------------
1,605,915 SK LOGO 12/13/90 12/13/00 Cleaning and recycling services,
(Filing namely, removing, cleaning and
date) replacing solvent and parts washers
using service, maintenance, repair
and manufacturing facilities
--------------------------------------------------------------------------------
1,793,171 WE CARE LOGO 12/03/93 12/13/03 Advertising and publicity services
(Filing regarding the services listed in
Date) Spanish Trademarks Nos. 1,115,714/
715/716 and 1,605,916
--------------------------------------------------------------------------------
Spain
--------------------------------------------------------------------------------
2,059,514 SK LOGO 11/22/96 11/22/06 Cleaning and degreasing prepara-
tions for industrial use
--------------------------------------------------------------------------------
2,059,515 SAFETY-KLEEN 11/22/96 11/22/06 Material treatment services,
especially cleaning and recycling
service of solvent of cleaning
apparatus
--------------------------------------------------------------------------------
REGISTRATIONS ISSUED BEFORE MAY 12, 1989 HAVE A TERM OF TWENTY (20) YEARS
FROM THE ISSUE DATE, NOW RENEWABLE EVERY TEN (10) YEARS COUNTED FROM THE
FILING DATE
APPLICATIONS FILED OR GRANTED AFTER 05/12/89 -
RENEWABLE EVERY TEN (10) YEARS FROM THE DATE OF FILING
SPAIN - PENDING APPLICATIONS
--------------------------------------------------------------------------------
SERIAL NO. XXXX FILE DATE GOODS/SERVICES
--------------------------------------------------------------------------------
1,605,913 SK LOGO 12/13/90 Machines and machine tools, namely,
cleaning machines
--------------------------------------------------------------------------------
2,148,516 THE POWER OF 03/09/98 Aqueous cleaning solutions
WATER
--------------------------------------------------------------------------------
Spain
UNITED KINGDOM - REGISTRATIONS
--------------------------------------------------------------------------------
FILE EXPIRY
REG. NO. TRADEMARK DATE DATE GOODS/SERVICES
--------------------------------------------------------------------------------
1,225,688 SK LOGO 09/01/84 09/01/05 Solvents for use in the cleaning of
machines; cleaning preparations;
degreasing preparations (not for
use in industrial or manufacturing
processes)
--------------------------------------------------------------------------------
1,225,689 SK LOGO 09/01/84 09/01/05 Industrial cleaning machines (other
than vacuum cleaners); oil filters
for engines; parts and fittings
included in Class 7 for all the
aforesaid goods
--------------------------------------------------------------------------------
1,274,974 SK LOGO 10/01/86 10/01/07 Cleaning services, washing services
and maintenance services all for
vehicles parts, mechanical parts,
pads used in vehicle pain
refinishing and for filters used in
restaurant kitchen installations;
rental of cleaning apparatus,
refurbishment of vehicles; all
included in Class 37
--------------------------------------------------------------------------------
1,288,712 SK LOGO 10/01/86 10/01/07 Services included in Class 40 for
the recycling of solvents and for
the treatment and purification of
liquids
--------------------------------------------------------------------------------
United Kingdom
--------------------------------------------------------------------------------
1,225,686 SAFETY-KLEEN 9/01/84 09/01/05 Solvents for use in the cleaning of
& SK LOGO machines; cleaning preparations;
degreasing preparations (not for
use in industrial or manufacturing
processes)
--------------------------------------------------------------------------------
1,225,687 SAFETY-KLEEN 09/01/84 09/01/05 Industrial cleaning machines (other
& SK LOGO than vacuum cleanrs); oil filters
for engines; parts and fittings
included in Class 7 for all the
aforesaid goods
--------------------------------------------------------------------------------
1,274,975 SAFETY-KLEEN 10/01/86 10/01/07 Cleaning services, washing services
& SK LOGO maintenance services, all for
vehicles parts, mechanical parts,
pads used in vehicle paint re-
finishing, and for filters used in
restaurant kitchen installations;
rental of cleaning apparatus,
refurbishment of vehicles
--------------------------------------------------------------------------------
1,288,711 SAFETY-KLEEN 10/01/86 10/01/07 Recycling of solvents; treatment
& SK LOGO and purification of liquids
--------------------------------------------------------------------------------
1,472,921 SAFETY-KLEEN 08/09/91 08/09/08 Solvents for use in the cleaning of
(Stylized) machines; cleaning preparations;
degreasing preparations
--------------------------------------------------------------------------------
1,472,922 SAFETY-KLEEN 08/09/91 08/09/08 Industrial cleaning machines; oil
(Stylized) filters for engines; parts and
fittings for all the aforesaid
goods.
--------------------------------------------------------------------------------
1,472,923 SAFETY-KLEEN 08/09/91 08/09/08 Cleaning, washing, and maintenance
(Stylized) of vehicle parts, mechanical parts,
pads used in vehicle paint re-
finishing and of filters used in
restaurant kitchen installations;
rental of cleaning apparatus;
refurbishment of vehicles
--------------------------------------------------------------------------------
United Kingdom
--------------------------------------------------------------------------------
1,472,924 SAFETY-KLEEN 08/09/91 08/09/08 Recycling of solvents; treatment
(Stylized) and purification of liquids
--------------------------------------------------------------------------------
FIRST TERM - SEVEN (7) YEARS FROM THE DATE OF FILING
SUBSEQUENT TERM - FOURTEEN (14) YEARS
United Kingdom
Unregistered trademarks in the countries constituting the Trademark License
Territory:
WE CARE
The Power of Water
EXHIBIT B
TRADEMARK LICENSE TERRITORY
Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy,
Luxembourg, The Netherlands, Portugal, Spain, Sweden, United Kingdom, Poland,
the Czech Republic, Hungary, Switzerland, Norway, Turkey, Slovakia, Iceland and
any dependent territories of the foregoing countries which are located on the
continent of Europe.
EXHIBIT C
STANDARDS OF QUALITY
The current and existing operating procedures and trademark usage
standards practiced by the European subsidiaries of S-K immediately prior to the
Effective Date, PROVIDED that, at a minimum, these procedures and standards
shall include, but are not limited to, Licensee's reasonable, diligent efforts
to conduct the Business in strict compliance with the Corporate Identity Program
(attached as Attachment C).
CORPORATE IDENTITY PROGRAM
ATTACHMENT C
[SAFETY-KLEEN LOGO]
AN IMPORTANT MESSAGE
ON THE CORPORATE IDENTITY
AND TRADEMARKS OF
SAFETY-KLEEN CORP.
One of the most important assets of The logo forms a letter "S" with a
Safety-Kleen Corp. is its name and logo, small "k". The logo is suggestive
and the image that is created by them to of our company's initials "SK".
our customers and the general public. The company name - Safety-Kleen -
Our name and logo become the indentity in the unique corporate logotype,
and trademark of the whole organization. is an integral part of the logo and
must always appear below the logo.
As we grow, it is important to establish Under no circumstances should the
and maintain a uniform corporate identity. word Safety-Kleen, or the "S" and
It is critical to our success to create small "k" appear alone (SEE INSIDE).
a single impression of a strong, co-
ordinated organization standing behind Since the ultimate goal is to have
each of our diverse services, products the logo become synonymous with our
and branches. company name, it is vital that the
logo be reproduced precisely and in
Our logo does that. It bears the good- proper relationship each time it is
will of our company, and often comes to issued. Proper implementation of the
embody greater and greater value logo is as important as how often it
accumulated over time. is seen.
This is why visual communications- That's why we ask your help in
both inside and outside the corporation- protecting the legal status of our
is one of the most significant ways by logo, trademarks and brands (like WE
which this impression can be developed. CARE(R)) by adhering to the
Therefore, consistent use of the Safety- guidelines summarized in this
Kleen logo is essential to creating and brochure.
sustaining a positive impression.
Proper use assures continued viability The WE CARE symbol, for example, is
and marketing value. a separate symbol that must not be
altered in any way. Nor must it be
The Safety-Kleen logo provides the basic used in place of the Safety-Kleen
focal point around which a strong visual logo. The following rules help
identity is being developed for our ensure proper presentations of our
entire organization. The logo is a company and its individual brands.
graphic design element, so it possesses
all of the criteria a good logo in Within, we offer a brief explanation
today's business world demands. of the Safety-Kleen Corporate
Preserving its integrity is in your own Identity Program you can follow. For
business interests; the logo helps you usage outside of what is covered
convey your own concern for consistent here, please obtain written approval
quality and value. from the Manager-Advertising &
Promotions.
CORPORATE LOGO
The two elements that comprise the company
logo - the letter "S" with the small "k"
(SK) and the name Safety-Kleen - bear a
relationship to each other and must remain [LARGE SAFETY-KLEEN LOGO]
always as shown in this brochure. The
space surrounding the log is also an integral PANTONE 032 RED/BLACK LOGO
part of its design and should remain void of ON CENTER
any elements that would obstruct the logo.
The word "Safety-Kleen" appears in a unique,
hand-drawn typeface when it is used as part
of the logo. No other typeface should be
substituted for it when used with the logo.
Whenever possible, use a size as represented
on the chart. It is important to note that
the large logo is not simply a blow-up of a
smaller one. The proportions change slightly
to assume uniform optical image.
If you need a larger logo than shown, blow up
the largest on the sheet and adjust the "Safety-
Kleen" so that a vertical line bisecting the
hyphen touches the tip of the arrow. [SMALLER "S" LOGO IN CIRCLE
WITH DIAGONAL LINE THROUGH
The following are general rules that have been THE "S"]
created for the use of the logo that will help
maintain our identity.
* Never use the "sk" alone without the word [CIRCLE WITH NAME "SAFETY-
"Safety-Kleen(R)" in the unique corporate KLEEN(R) THROUGH CIRCLE AND
logotype. DIAGONAL LINE THROUGH NAME]
* The word "Safety-Kleen(R)" must never
be used alone in the unique corporate
logotype.
* If you have occasion to use the
company name without the logo (such
as in text, or on a sign perhaps),
always use the approved SAFETY-KLEEN
typeface, HELVETICA ULTRA CONDENSED HELVETICA ULTRA CONDENSED -
(see example). USED IN COPY SITUATIONS
--------------------------------------- ------------------------------------
EXCEPTION: IMPORTANT:
--------------------------------------- ------------------------------------
The use of the Safety-Kleen logo on our A registration xxxx (R) must be used
uniform is a pre-approved exception for appropriately in the name and is an
these rules. Permission from the integral part of the image. A repro-
Manager-Advertising & Promotions must duction sheet is provided as part of
be obtained for usage outside the rules this brochure on the left.
of this brochure.
The top of this page has copies of 13 Safety-Kleen logos in various sizes.
--------------------------------------------------------------------------------
IMPORTANT: Please refer to specific color usage and guidelines for our
logos in this brochure.
--------------------------------------------------------------------------------
The bottom half of this page has 5 WE CARE logos in various sizes with
copyright information.
-------------------------------------
COLOR
-------------------------------------
The corporate colors are black and red [This column has 4 Safety-
and act as unifying elements in the Kleen logos in boxes in
Safety-Kleen identity program. The red various color combinations
is specified as PANTONE 032 for printing. as follows:
Black is specified as "black."
Black is assigned to the top half of the
"S" and red to the bottom half as shown PROPER SPECIFICATION OF OUR LOGO
the right.
SOLID ONE COLOR OR SOLID BLACK
Use of the corporate color is not
intended to restrict using other colors REVERSED OUT WHITE FROM
in promotional materials. When used on BACKGROUND
white, simply follow the prescribed
procedures for black/red combination BLACK OVERPRINT IN COLOR
in the logo as outlined above. The logo BACKGROUND]
may also be one solid color on a white
page when using a one-color format. The
logo can also be entirely black where
called for within the design.
When used over colors, the logo should
be given special consideration to assure
proper presentation. For example,
when used over color(s), the logo can be
reversed out of the color(s), or coordi-
nated to the color scheme of the piece if
the color is light in value, the logo may
be printed over the color in black ink (see
examples on right).
-----------------------------------------
Signage for trucks use red and black
rectangles as background colors and
therefore the logo must reverse out of
these colors. Another approved
variation is PANTONE(R) 199 (yellow)
as part of the rectangles
[two pictures of logo as
described above]
------------------------------------------
BRAND NAMES AND TRADEMARKS [This column contains
various colors of WE CARE
A brand name is an important asset of logos in a box as follows:
the company. Currently, Safety-Kleen uses
various trademarks such as AquaWorks(TM) or SOLID BLACK
brands like WE CARE(R) to signify our
commitment to our industry and to our 110 OR 65 LINE SCREEN
customers. AquaWorks(TM), for example, WHITE TRAP IF USED ON A
is the registered trademark of our aqueous BACKGROUND
solvent. AquaWorks(TM) must always be used
as shown here, in upper and lower case. SPOT OR PROCESS COLOR
SEE INSTRUCTIONS ON LEFT
The WE CARE symbol must not be changed under FOR SPECS
any circumstances. Like our logo, it is a
unique presentation and asset, and must be SPOT OR PROCESS COLOR
guarded carefully by proper, consistant usage. USED WITH WHITE TRAP]
As previously mentioned, the WE CARE symbol
does NOT take the place of the Safety-Kleen
logo.
--------------------------------------------
WE CARE(R) USAGE RULES
--------------------------------------------
* The WE CARE symbol can be printed in black
ink
* The WE CARE symbol, where appropriate, can be
printed using a 110 line screen or a 65 line
screen of black ink as shown at right.
* Where appropriate, the WE CARE symbol can be
printed in 4 color process: Green (60 Xxxx,
00 Xxxxxx); Xxxx (00 Xxxx); Red (87 Yellow,
91 Magenta). For PANTONE(R) variations, use
the following: 346 for GREEN, 2985 for Blue
and 032 for Red. When using 4 color, follow
the rules of the Safety-Kleen symbol and
logotype for color, making sure that there
is white around the border of the WE CARE
symbol. White must be printed as a border
if the symbol is used on a color other than
white.
* When using WE CARE in text, be sure it is in
upper case at all times, and it carries the
registration (R) xxxx the first time it
appears.
If there is any uncertainty with usage of
the Safety-Kleen logo, please contact the
Manager-Advertising & Promotions.
[SAFETY-KLEEN 000 X. Xxxxxxx Xxxx
XXXX] Xxxxx, Xxxxxxxx 00000
847/697-8460
EXHIBIT D
SUBSIDIARIES
--------------------------------------------------------------------------------
SUBSIDIARY JURISDICTION OF
INCORPORATION
--------------------------------------------------------------------------------
Ilium (Netherlands B.V. Netherlands
--------------------------------------------------------------------------------
Safety-Kleen Belgium S.A. Belgium
--------------------------------------------------------------------------------
Safety-Kleen Beteiligung GmbH Germany
--------------------------------------------------------------------------------
Safety-Kleen France S.A. France
--------------------------------------------------------------------------------
Safety-Kleen Grundbesitz GmbH Germany
--------------------------------------------------------------------------------
Safety-Kleen Ireland Limited Ireland
--------------------------------------------------------------------------------
Safety-Kleen Italia S.p.A. Italy
--------------------------------------------------------------------------------
Safety-Kleen U.K. Ltd. United Kingdom
--------------------------------------------------------------------------------
Safety-Kleen Europe Limited United Kingdom
--------------------------------------------------------------------------------
Wastebrass Limited United Kingdom
--------------------------------------------------------------------------------
Totalinner Limited United Kingdom
--------------------------------------------------------------------------------
Safety-Kleen Deutschland GmbH Germany
--------------------------------------------------------------------------------
Safety-Kleen Espana, S.A. Spain
--------------------------------------------------------------------------------
Orm Xxxxxxx Chemie GmbH & Co. Germany
--------------------------------------------------------------------------------
Orm-Chemie GmbH Germany
--------------------------------------------------------------------------------
[LETTERHEAD]
Safety-Kleen Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
11 August 2000
Gentlemen:
QUALITY ISSUES
We refer to the trade xxxx assignment deed (the "ASSIGNMENT") between
Safety-Kleen Corp., Safety-Kleen Systems, Inc., and Safety-Kleen UK Limited
dated the same date as this letter (this "LETTER"). All capitalised terms used
in this Letter shall have the meaning given to them in the Assignment unless
otherwise indicated by this Letter.
We acknowledge your interests in preserving the goodwill, quality and reputation
of those trade marks (both registered and unregistered and any applications for
registration therefor), trade names, logos and trade dress of which you
currently are the proprietor ("YOUR MARKS"). Likewise, you acknowledge our
reciprocal interests in preserving the goodwill, quality and reputation of the
TRADE MARKS and the OTHER MARKS (as defined in the Assignment).
Therefore:
1. we undertake to you that our use and the use of our affiliates and
licensees of the Trade Marks and the Other Marks and the products and
services offered under them; and
2. you undertake to us that your use and the use of your affiliates and
licensees of Your Marks and the products and services offered under them,
shall be subject to such standards of quality at least equal to those met or
required to be met by you immediately prior to the date of the Assignment as
indicated by those set out in the Corporate Identity Program attached to this
Letter or at any time as may be required by law. For the avoidance of doubt, it
will not be considered a breach of this undertaking if such use of the Trade
Marks, the Other Marks or Your Marks (as the case may be) is reasonably varied
or modified to take into account business developments, marketing issues or
material competitive pressures.
In addition:
1. we acknowledge that all right, title and interest in and to Your Marks in
all territories outside the Territory are the exclusive property of you
and/or your licensees; and
2. you acknowledge that all right, title and interest in and to the Trade
Marks and the Other Marks in the Territory are our exclusive property
and/or that of our licensees.
15:02\3 August 2000\PXD\1821670.01
For so long as you are using Your Marks in any jurisdictions outside the
Territory, we undertake that we will not use or apply to register any trade
marks, trade names, logos and trade dress which are identical or similar to Your
Marks in any jurisdictions outside the Territory (whether or not you or your
affiliates or licensees are using such trade marks, trade names, logos and trade
dress in those jurisdictions).
In the event of a material breach of any of the undertakings set out above, the
party which has suffered the breach (the "INITIATING PARTY") shall serve a
written notice on the other party (the "BREACHING PARTY") requiring it to remedy
the breach within 30 days of the date of that notice and giving reasonably
complete details of the breach in question if such breach is capable of being
cured. If the Breaching Party falls to remedy the breach in question within that
30 day period, the Initiating Party may xxx the Breaching Party for any loss or
damage suffered as a result of that breach, including loss of profits, or
injunctive relief. We both agree that the foregoing remedies shall be the only
remedies available to the Initiating Party as a result of a breach of any of the
undertakings set out above.
We also agree to notify you in writing as soon as possible upon becoming aware
of any infringement or improper use of Your Marks and likewise you agree to
notify us in writing as soon as possible upon becoming aware of any infringement
or improper use of the Trade Marks or the Other Marks. Subject to the remainder
of this paragraph, where one of us reasonably requests assistance (the
"REQUESTING PARTY") from the other (the "ASSISTING PARTY") in bringing any
actions, claims or proceedings in relation to any such infringement or improper
use (including being joined as a party to any such action, claim or proceeding),
the assisting party shall give all reasonable assistance as the requesting party
may require. The requesting party shall at all times reimburse the assisting
party for all reasonable costs and expenses incurred by it in providing the
assistance. If joined in any action, the assisting party shall not enter into
any settlement, consent judgement or other final disposition or appeal any
judgement in relation thereto without the prior written consent of the
requesting party (such consent not to be unreasonably withheld or delayed).
All notices, requests or other communications to any party under this Letter
shall be in writing and shall be delivered personally or sent by pre-paid first
class post (air mail if posted to or from a place outside the United Kingdom) to
the address of each party stated above or sent by fax, in the case of us to
[Safety-Kleen UK Limited, Safety-Kleen House, 000 Xxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx XX00XX] and in the case of you, to Safety-Kleen Corp., 0000 Xxxxxxx
Xxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx, 0000 1, in each case marked for the attention
of the [Company Secretary].
Either party may assign this letter or any of its rights, duties or obligations
hereunder at any time, by operation of law or otherwise. The provisions of this
Letter shall be binding upon and inure to the benefit of the parties hereto and
their respective successor and permitted assigns.
This Letter shall be governed by and interpreted in accordance with the laws of
the State of New York without reference to principles of conflicts of laws. Each
of the parties hereto (a) consents to submit itself to the personal Jurisdiction
of any federal court located in the State of New York or any New York state
court in the event any dispute arises out of this Letter or any of the
transactions contemplated by this Letter (provided, that this clause shall not
affect the agreement between the parties hereto with respect to the governing
law of the terms of the Assignment), (b) agrees that it will not attempt to deny
or defeat such personal jurisdiction by motion or other request for leave from
any such court and (c) agrees that it will not bring any action relating to this
agreement or any of the transactions contemplated hereby in any court other than
a federal or state court sitting in the State of New York.
2
[New York #785432 v2]
Please acknowledge your acceptance of the above terms by signing and returning
the attached copy of this Letter.
Yours sincerely
/s/ Xxxxx Xxxxxxx
----------------------------------------
Signed for and on behalf of SAFETY-KLEEN
UK LIMITED
/s/ Xxxxx X. Xxxxxx Secretary
----------------------------------------
Signed for and on behalf of SAFETY-KLEEN
CORP
15:02\3 August 2000\PXD\1821670.01
3
