DATED 21ST DECEMBER, 1999
HEINRICH XXXX XXXXX
AND
SOLUTIA INC.
---------------------------------------------------
AGREEMENT
FOR THE SALE AND PURCHASE OF
SHARES IN VIKING RESINS GROUP HOLDINGS B.V.
---------------------------------------------------
XXXXX & OVERY
London
CONTENTS
CLAUSE PAGE
1. Interpretation 1
2. Sale and Purchase of the B Shares 2
3. Consideration 2
4. Condition Precedent 3
5. Rescission 3
6. Covenants up to Completion 3
7. Inks 6
8. Completion 6
9. Herberts and other Claims 6
10. Notices 8
11. Resolutions and Waivers 8
12. General 8
13. Whole Agreement 10
14. Governing Law 10
SCHEDULES [Omitted]
1. Particulars of the Company
2. Completion Arrangements
Signatories 13
THIS AGREEMENT is made on 21st December, 1999, BETWEEN:
(1) HEINRICH XXXX XXXXX of Xxxxxxxxxx Xxxxxxx 0, 00000 Xxxxxxxx/Xx,
Xxxxxxx (the "SELLER"); and
(2) SOLUTIA INC. of 000 Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, XX 00000
(the "PURCHASER").
WHEREAS:
(A) Viking Resins Group Holdings B.V. (the "COMPANY") is a company
short particulars of which are set out in Schedule 1.
(B) The Seller wishes to sell and the Purchaser wishes to purchase the
B Shares on the terms and subject to the conditions set out in
this agreement.
IT IS AGREED as follows:
1. INTERPRETATION
(1) In this agreement, unless defined below, all words and phrases
shall have the same meanings as defined in the Sale Agreement:
"AGREED FORM" means, in relation to any document, the form of that
document which has been initialled for the purpose of
identification by or on behalf of the Seller and the Purchaser;
"B SHARES" means 924 of the class B shares of NLG90 each in the
issued capital of the Company;
"COMPLETION" means completion of the sale and purchase of the B
Shares in accordance with clause 8;
"COMPLETION BALANCE SHEET" means the Completion Balance Sheet
agreed or determined in accordance with Schedule 6 of the Sale
Agreement;
"CONSIDERATION" means the consideration for the sale of the B
Shares as calculated pursuant to clause 3(1);
"SALE AGREEMENT" means the agreement dated 10th November,
1999 between the Purchaser, the Sellers and the Warrantholders (as
such terms are defined therein) for the sale to the Purchaser of
class A shares, preference shares and loan stock in the Company and
the cancellation of warrants to subscribe for class A shares in the
Company.
(2) In this agreement any reference, express or implied, to an
enactment includes references to:
(a) that enactment as amended, extended or applied by or under
any other enactment (before or after signature of this
agreement);
(b) any enactment which that enactment re-enacts (with or
without modification); and
2
(c) any subordinate legislation made (before or after signature
of this agreement) under any enactment, as re-enacted,
amended, extended or applied as described in paragraph (a)
above, or under any enactment referred to in paragraph (b)
above,
except to the extent that any amendment or modification made after
the date of this agreement would increase or alter the liability
of any party under this agreement, and "ENACTMENT" includes any
legislation in any jurisdiction.
(3) Words denoting persons shall include bodies corporate,
partnerships and other unincorporated associations of persons.
(4) Subclauses (1) to (3) above apply unless the contrary intention
appears.
(5) The headings in this agreement do not affect its interpretation.
2. SALE AND PURCHASE OF THE B SHARES
(1) Subject to clauses 4 and 5, the Seller shall sell and the
Purchaser shall purchase the B Shares together with all rights
attaching to such B Shares, including dividends declared or fallen
due but not paid at Completion.
(2) The Seller warrants to and covenants with the Purchaser that he
has the right to sell and transfer the full legal and beneficial
interest in the B Shares to the Purchaser on the terms set out in
this agreement and that such B Shares shall be sold free from all
liens, charges, equities and encumbrances and other legal and
equitable rights exercisable by third parties.
(3) Neither the Seller nor the Purchaser shall be obliged to complete
the sale and purchase of any of the B Shares unless the sale and
purchase of all the B Shares is completed simultaneously in
accordance with this agreement and simultaneously with completion
of the Sale Agreement and the other Minority Share Sale Agreements
in accordance with their respective terms.
(4) The Seller warrants to and covenants with the Purchaser that he
has no right to or interest in any shares in the Company other
than the B Shares.
3. CONSIDERATION
(1) The consideration for the sale of the B Shares shall be the
product (in DEM) of the following formula:
( 924 )
(GEV x ------)
( 112005)
(2) The Purchaser shall pay to the Seller DEM 3,523,417.70 in cash on
Completion on account of the Consideration (the "PAYMENT ON
ACCOUNT").
(3) Upon payment of any amount payable pursuant to clause 4(7) of the
Sale Agreement:
3
(a) if the Payment on Account is greater than the Consideration,
the Seller shall repay to the Purchaser in cash the amount
of the excess; and
(b) if the Payment on Account is less than the Consideration,
the Purchaser shall pay to the Seller in cash the amount of
the deficiency,
in each case together with interest accruing daily of such amount
at the rate of Euribor plus 2 per cent per annum from the date of
Completion to (but not including) the date of payment.
4. CONDITION PRECEDENT
(1) The sale and purchase of the B Shares is conditional on
satisfaction of the conditions set out in clause 5(1) of the Sale
Agreement (save to the extent such conditions relate to the
execution of this agreement).
(2) Each of the parties shall use reasonable endeavours to procure
that the condition in subclause (1) above is fulfilled on or
before 29th February, 2000.
(3) If the condition in subclause (1) above is not fulfilled on or
before the date specified in subclause (2) above, all the clauses
of this agreement (other than clauses 10 to 14) shall cease to
have effect and none of the parties will have any rights or
liabilities under those clauses except in respect of an antecedent
breach.
5. RESCISSION
This agreement shall automatically be rescinded upon rescission of
the Sale Agreement, and the provisions of clause 4(3) of this
agreement shall mutatis mutandis apply.
6. COVENANTS UP TO COMPLETION
(1) The Seller undertakes to the Purchaser that until Completion he
shall not, without the prior consent of the Purchaser, approve
anything which he reasonably believes is outside the ordinary
course of business of the relevant member of the Vianova Group or
(without limitation to the foregoing) any of the following
matters:
(a) capital expenditure by any member of the Vianova Group in an
amount exceeding DEM1 million per calendar month or
DEM4 million in aggregate for the entire Vianova Group or
which, when aggregated with other capital expenditure
incurred during calendar year 1999 by it or any other member
of the Vianova Group, exceeds DEM21.4 million;
(b) the disposal or acquisition by any member of the Vianova
Group of any assets having a net book or market value in
excess of DEM1 million;
(c) the acquisition, disposal or formation by any member of the
Vianova Group of any subsidiary or affiliate;
(d) the grant or issue by any member of the Vianova Group of any
security including, without limitation, mortgages, charges,
guarantees or debentures in connection with any part of its
business, except in what he reasonably believes to be the
ordinary course of business;
4
(e) the entry into or amendment by any member of the Vianova
Group of any agreement, contract or other binding commercial
arrangement which (i) is not capable of being terminated on
12 months' notice or less by that member and which involves
payment or receipt by that member of more than DEM 1 million
per annum (or the equivalent sum in the relevant local
currency) or (ii) involves payment or receipt by any member
of the Vianova Group in excess of DEM 2 million per annum
(or the equivalent sum in the relevant local currency) other
than any agreement, contract or arrangement for the purchase
of raw materials made in the ordinary course;
(f) the making by any member of the Vianova Group of any
material change in the terms and conditions of employment of
the members of the Management Board listed in Schedule 1,
the termination of the employment of such persons or the
employment of any new persons in positions equivalent or
similar to those held by such persons;
(g) the assumption or grant by any member of the Vianova Group
of any rights in respect of real estate otherwise than in
what he reasonably believes to be the ordinary course of
business;
(h) the entry into by any member of the Vianova Group of any
new, or the renewal of any current, "shop agreements"
("Betriebsvereinbarungen"), or any equivalent union or works
council agreements;
(i) the institution or joinder by any member of the Vianova
Group as a plaintiff before any court, governmental agency,
arbitration panel or other tribunal of any proceeding with
an individual value in dispute in excess of DEM200,000;
(j) the creation, issue, purchase, redemption or conversion by
any member of the Vianova Group of any class of share
capital or the grant of any options or other rights in
favour of the Seller or any third parties in connection with
any class of share capital or the recapitalisation of any
intergroup indebtedness;
(k) the entry into by any member of the Vianova Group of any new
facility agreement for the borrowing of money or the
discounting of invoices, or the amendment in any material
respect of the Finance Agreements;
(l) the repayment of any term indebtedness,
provided that (i) this subclause shall not apply to a sale of the
Inks Business in accordance with clause 8 of the Sale Agreement or
any step necessary to implement Schedule 5 of the Sale Agreement
or Schedule 2 of this agreement; and (ii) the Purchaser shall not
withhold or delay its consent under this subclause if the relevant
member of the Vianova Group has an obligation to do the thing in
question pursuant to a legally binding obligation entered into by
it prior to the date of this agreement.
(2) Prior to Completion the Seller shall not without the prior consent
of the Purchaser (not, in the case of paragraph (b) below, to be
unreasonably withheld or delayed) knowingly do or omit to do
anything or knowingly allow any member of the Vianova Group to do
or omit to do anything which he knows does, will or might:
5
(a) cause any provision of the Hoechst Agreement to be or become
unenforceable, in whole or part and whether before or after
Completion, in accordance with its terms; or
(b) cause or allow enforcement of any provision of the Hoechst
Agreement to be waived, in whole or in part.
(3) Until Completion, the Seller shall use his reasonable endeavours
to procure that any and all returns, notices, computations and
elections which he is aware are required to be filed prior to
Completion with any tax, duty or excise authority are properly
filed by Completion.
(4) Until Completion the Seller shall use his best endeavours to
procure that:
(a) the Purchaser, its agents, advisers and representatives are
provided in a timely fashion with such information regarding
the businesses and affairs of the Vianova Group as the
Purchaser may reasonably require by notice to Xx. Xxxxxxxx;
and
(b) the Purchaser, its agents, advisers and representatives are
given reasonable access during normal working hours to
PricewaterhouseCoopers and to the officers, directors,
employees, premises, books and records of members of the
Vianova Group. Requests for such access shall be
communicated via MGPE which may impose such conditions as
are reasonable to avoid undue disruption to the Company's
business and activities and to allow an adequate and proper
process control to be exerted by MGPE (on behalf of the
Seller);
(c) the Purchaser, its agents, advisers and representatives are
given such assistance by the directors, officers and
employees of the Vianova Group as the Purchaser may
reasonably require in order to:
(i) arrange the discharge on or following Completion of
all the obligations of the Vianova Group under the
Finance Agreements, including the provision of a
forecast of the gross and net debt position of the
Vianova Group on a company by company basis as at
Completion no later than five days before the date set
for Completion; and
(ii) ensure, to the extent required by the Purchaser, that
new or replacement finance agreements are established
on or following Completion.
(5) The Seller shall inform and consult (via Xx. Xxxxxxxx) with the
Purchaser about and regarding the matters referred to in clauses
9(2) and (3) and take into account the reasonable suggestions of
the Purchaser with respect thereto and not settle those matters
other than on reasonable commercial terms (it being acknowledged
that the current intention of the Vianova Group is that any amount
paid to the Vianova Group by Hoechst in respect of the Herberts
Claim will be equal to any amount paid by the Vianova Group to
Herberts in respect of it).
(6) The Seller shall not before Completion without the consent of the
Purchaser:
(a) dispose of any interest, legal or equitable or otherwise, in
the B Shares or convert any of the B Shares into any other
class of share or security or grant any option or right of
6
pre-emption over, or grant any other third party right in
respect of, or mortgage, charge or otherwise encumber any of
the B Shares; or
(b) vote in favour of any proposed resolution of the Company's
shareholders other than a resolution to adopt the accounts
for the year ended 31st December, 1998, including any
resolution for the declaration, making or payment of any
divided or other distribution, whether of profits, retained
earnings or other cash or otherwise.
(7) For the purposes of this clause, the Purchaser's consent shall be
the consent of any of Xxxxxx X. Xxxx, Xxxxx Xxxxxxxx or Xxxx X.
Xxxxx.
(8) If prior to Completion the Seller becomes aware of any of the
matters set out in clause 6(1) of the Sale Agreement he shall
notify the Purchaser thereof as soon as practicable after becoming
so aware.
7. INKS
Up to Completion, the Seller shall procure in so far as he is
reasonably able that:
(a) the Vianova Group uses reasonable and good faith efforts to
sell the Inks Business (and any other assets intended to be
sold with it, as described in the LOI) on terms consistent
with the LOI and any other terms agreed by Purchaser (such
agreement not to be unreasonably withheld or delayed); and
(b) the Purchaser shall have the right to review the proposed
terms of the sale and shall be entitled to prevent the sale
on reasonable grounds, including (without limitation) (i)
the allocation of liability between the Vianova Group (on
the one hand) and the acquirer of the Inks Business (on the
other hand) being such that the Vianova Group retains or
acquires any potential liability for post-acquisition acts
or omissions of such acquirer; and (ii) the inclusion in the
assets sold of all or part of the InfraServ share interest
without a corresponding and appropriate increase in the
consideration for the Inks Business.
8. COMPLETION
(1) Completion shall take place at the same time and place as
completion of the Sale Agreement.
(2) At Completion the Seller and the Purchaser shall do those things
set out in Schedule 2.
9. HERBERTS AND OTHER CLAIMS
(1) The Purchaser shall on Completion pay to the Seller the Relevant
Percentage of DEM 6,500,000.
(2) The Seller shall pay to the Purchaser the Relevant Percentage of:
(a) any amount paid by the Vianova Group to Herberts in respect
of the Herberts Claim whether before, on or after the date
of Completion, provided that in relation to any amount paid
prior to the date of Completion the amount shown in the
notes to the Completion Balance Sheet as relating to the Herberts
Claim and as having been written back for the purposes of the
Completion Balance Sheet shall be conclusive evidence of the
amount so paid and provided further that the maximum amount
7
payable by the Seller under this paragraph (a) shall be the
Relevant Percentage of DEM 5,000,000; and
(b) any amount of corporation tax paid by Vianova Spain in
respect of the period from 1st January to 1st June, 1999 by
virtue of the merger of Vianova Spain with Viking Spain
being effective on 1st June, 1999 rather than 1st January,
1999, whether payment is made before, on or after the date
of Completion, provided that in relation to any amount paid
prior to the date of Completion the amount shown in the
notes to the Completion Balance Sheet as relating to the
corporation tax paid by Vianova Spain for that period and as
having been written back for the purposes of the Completion
Balance Sheet shall be conclusive evidence of the amount so
paid and provided further that the maximum amount payable by
the Seller under this paragraph (b) shall be the Relevant
Percentage of DEM 1,500,000.
(3) The Purchaser shall pay to the Seller the Relevant Percentage of:
(a) any amount received by the Vianova Group from Hoechst in
respect of the Herberts Claim net of reasonable out-of-
pocket costs and expenses incurred in making recovery,
whether before, on or after the date of Completion, provided
that in relation to any amount received prior to the date of
Completion the amount shown in the notes to the Completion
Balance Sheet as relating to the Herberts Claim and as
having been written back for the purposes of the Completion
Balance Sheet shall be conclusive evidence of the amount so
received provided that the maximum amount payable by the
Purchaser under this paragraph shall be no greater than the
aggregate liability of the Seller under subclause 2(a);
(b) any amount received by Vianova Spain from the Spanish
taxation authorities or any other person in respect of
corporation tax paid or payable by Vianova Spain in respect
of the period from 1st January to 1st June 1999 by virtue of
the merger of Vianova Spain with Viking Spain being
effective on 1st June 1999 rather than 1st January, 1999
(net of reasonable out-of-pocket costs and expenses incurred
in making recovery), whether received before, on or after
the date of Completion, provided that in relation to any
amount received prior to the date of Completion the amount
shown in the notes to the Completion Balance Sheet as
relating to such corporation tax and as having been written
back for the purposes of the Completion Balance Sheet shall
be conclusive evidence of the amount so received provided
that the maximum amount payable by the Purchaser under this
paragraph shall be no greater than the aggregate liability
of the Seller under subclause 2(b);
(c) any amount received by the Vianova Group after Completion
under clause 6.19 of the Hoechst Agreement.
(4) Each payment to be made by the Seller to the Purchaser or vice
versa under subclause (2) or (3) (as the case may be) shall be
paid within ten Business Days after:
(i) the related amount having been made or received (as the case
may be); or
(ii) agreement or determination of the Completion Balance Sheet,
whichever is the later.
8
(5) After Completion, the Purchaser shall inform and consult with MGPE
(on behalf of the Seller) about and regarding the matters referred
to in subclauses (2) and (3) and take into account the reasonable
suggestions of MGPE (on behalf of the Seller). The Purchaser
shall procure that any settlement of those matters is made on
reasonable commercial terms (it being acknowledged that the
current intention of the Vianova Group is that any amount paid to
the Vianova Group by Hoechst in respect of the Herberts Claim will
be equal to any amount paid by the Vianova Group to Herberts in
respect of it). The Purchaser will use all reasonable endeavours
to pursue any rights it may have against third parties which would
entitle it to a payment of the type referred to in subclause (3)
above.
(6) Any payment to be made to or by the Seller under subclauses (1) to
(3) above shall be treated as an increase or reduction in the
consideration for the sale and purchase of the B Shares.
(7) "RELEVANT PERCENTAGE" means in relation to a payment to be made
under subclauses (1), (2) or (3), the product of the following
formula expressed as a percentage where P = the amount of the
relevant payment if the Relevant Percentage were 100:
( 924 )
(P x ------)
( 112005)
10. NOTICES
(1) Except as otherwise specifically provided in this agreement, any
notice or other document to be served under this agreement shall
be delivered to the party to be served at his address appearing in
this agreement or at such other address as he may have notified to
the other party in accordance with this clause.
(2) Any notice or document shall be deemed to have been served at the
time of delivery.
(3) In proving service of a notice or document it shall be sufficient
to prove that delivery was made.
11. RESOLUTIONS AND WAIVERS
(1) The Seller shall procure so far as it is able the convening of all
meetings of the Company, the giving of all waivers and consents
and the passing of all resolutions as are necessary under its
constitutional documents to give effect to this agreement, the
Sale Agreement and the other Minority Share Sale Agreements.
(2) The Seller waives (and shall procure the waiver by his nominee of)
all rights of pre-emption which he (or such nominee) may have
(whether under the Company's constitutional documents or
otherwise) in respect of the transfer to the Purchaser or its
nominee of the B Shares or any of them and the matters
contemplated by the Sale Agreement and the other Minority Share
Sale Agreements.
12. GENERAL
(1) All payments to the Seller to be made under this agreement shall
be made in DEM in immediately available funds to the following
account:
9
bank: NatWest Bank plc
00 Xxxxxxxxxxx
Xxxxxx
sort code: 50-00-00
Swift address: XXXXXX0X
account number: 190/00/00000000
account name: Xxxxx & Overy Client Account
and such payment shall be in full and final satisfaction of any
obligation of the Purchaser to pay that amount to the Seller.
(2) Each party shall pay the costs and expenses incurred by him in
connection with the entering into and completion of this agreement
provided that any stamp duties, transfer taxes, notarial fees or
the like arising in connection with the transfer of the B Shares
and which are identified prior to agreement or determination of
the Completion Balance Sheet shall be borne by the Seller up to a
maximum of DEM 2,000.
(3) None of the rights or obligations under this agreement may be
assigned or transferred without the prior written consent of all
the parties, provided that the Purchaser may assign its rights
under this agreement to any of its wholly-owned subsidiaries,
subject to such subsidiary covenanting with the Seller to be
jointly and severally liable with the Purchaser to perform the
Purchaser's obligations under this agreement.
(4) This agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same
agreement and any party may enter into this agreement by executing
a counterpart.
(5) All figures stated in this agreement are exclusive of any value
added tax or its equivalent.
(6) All of the provisions of this agreement shall remain in full force
and effect notwithstanding Completion (except insofar as they set
out obligations which have been fully performed at Completion).
(7) If any provision or part of a provision of this agreement shall
be, or be found by any authority or court of competent
jurisdiction to be, invalid or unenforceable, such invalidity or
unenforceability shall not affect the other provisions or parts of
such provisions of this agreement, all of which shall remain in
full force and effect.
(8) No failure of a party to exercise, and no delay or forbearance in
exercising, any right or remedy in respect of any provision of
this agreement shall operate as a waiver of such right or remedy.
(9) Upon and after Completion the Seller shall do and execute or
procure to be done and executed all such further acts, deeds,
documents and things as may be necessary to transfer the B Shares
and pending the doing of such acts, deeds, documents and things
the Seller shall as from Completion hold the legal estate in the
B Shares to be sold by them pursuant to this agreement in trust
for the Purchaser.
(10) As from the date of this agreement and until the date when it
becomes apparent that the condition set out in clause 4 is
incapable of fulfilment in accordance with its terms by 29th
February, 2000, the Seller shall not treat with, solicit offers
from, approach or entertain any
10
offer from, or supply information to, any person other than the
Purchaser with respect to a proposed sale of any of the B Shares
other than to inform such party that no discussions can be held
because the Purchaser has been granted exclusivity.
13. WHOLE AGREEMENT
(1) This agreement and the documents referred to in it contain the
whole agreement between the parties relating to the transactions
contemplated by this agreement and supersede all previous
agreements between the parties relating to these transactions.
(2) Each of the parties acknowledges that in agreeing to enter into
this agreement he has not relied on any representation, warranty,
collateral contract or other assurance (except those set out in
this agreement and the documents referred to in it) made by or on
behalf of any other party before the signature of this agreement.
Each of the parties waives all rights and remedies which, but for
this subclause, might otherwise be available to him in respect of
any such representation, warranty, collateral contract or other
assurance, provided that nothing in this subclause shall limit or
exclude any liability for fraud.
14. GOVERNING LAW
(1) This agreement is governed by and shall be construed in accordance
with English law.
(2) Each party submits to the jurisdiction of the English courts for
all purposes relating to this agreement.
AS WITNESS the hands of the parties (or their duly authorised
representatives) on the date which appears first on page 1.
13
SIGNATORIES
SIGNED by ) /s/ H.O. Xxxxx
XXXXXXXX XXXX XXXXX )
SIGNED by ) /s/ X.X. Xxxx
for SOLUTIA INC. )
OMITTED SCHEDULES
A list briefly identifying the contents of all omitted schedules to this
agreement for the sale and purchase of class B shares in Viking Resins
Group Holdings B.V., dated 21st December, 1999, appears in the Table
of Contents to this agreement. Solutia will furnish supplementally to
the Securities and Exchange Commission upon request a copy of any
omitted schedule.
