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EXHIBIT 10.12
HEADS OF AGREEMENT
1. PARTIES: Xxxxxxxx-Group and Xxxxx-Xxxxxxxx Inc.
("CS") and Xxxxx-Xxxxxxxx International Inc.
("CS Intl."), legal successors to
Xxxxx-Xxxxxxxx Fiber Glass Corporation, as
parties to a certain Shareholders Agreement
dated January 7/8, 1993.
2. CSI SHARE CAPITAL: CS-Interglas AG (CSI) is a stock corporation
under German law with its place of business
at Xxxxxx, registered in the Commercial
Register of the Lower Court (Amtsgericht) of
Ulm under HRB 2182.
2.1 The CSI share capital amounts to DM
40.045.050 and is represented by 800.901
shares issued and outstanding in the nominal
value of DM 50/share.
2.2 The CSI-shares are presently held as
follows:
Xxxxxxxx-Group 431.464 shares
CS Intl. 199.000 shares
independent shareholders 170.437 shares
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total number of shares 800.901 shares
The 199,000 CSI shares presently held by CS
Intl. ("CS Intl. Shares") are blocked in a
deposit account (the "Deposit Account") with
Deutsche Bank AG based on the Deposit
Agreement between the Xxxxxxxx-Group, CS
Intl. (as successor of CS and of
Xxxxx-Xxxxxxxx Fiber Glass Corporation) and
Deutsche Bank AG dated as of March 25, 1993
(the "Deposit Agreement"). As soon as the
conversion of the Convertible Bonds becomes
effective, the obligation of CS Intl. to
keep certain CSI-shares in the Deposit
Account will terminate pursuant to Section
5.1 of the Deposit Agreement. EXHIBIT 1 is
the joint release letter of the
Xxxxxxxx-Group and of CS-Intl. to Deutsche
Bank AG.
2.3 There exists a contingent authorized capital
in the unused amount of DM 15.954.950. This
contingent authorized capital has been
established to cover conversion rights from
a convertible bond issue of which still DM
20.017.120 are
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outstanding. The conversion rate stands at 8
convertible bonds in exchange for 5
CSI-shares representing a nominal DM 80 per
CSI share conversion rate.
2.4 The Xxxxxxxx-Group represents and warrants
that the information provided in these Heads
of Agreement about the shares held by the
Xxxxxxxx-Group, CS Intl. and the independent
shareholders, the share capital of CSI and
the authorized capital are correct in all
respects.
3. CONVERSION OF
CONVERTIBLE BONDS: 3.1 CS Intl. exercises its option to have its
convertible bonds in the aggregate amount of
DM 20.000.000 converted into 250.000 shares
of stock of CSI, with the right to receive
dividends on these shares for the period
starting form April 1, 1998, such conversion
being subject to the clearance by the German
Merger Control Authorities (see also Section
14.1 below). EXHIBIT 2 is the exercise of
such option addressed to CSI as of March 31,
1998 together with the receipt by CSI
executed by Prof. Xx. Xxxxxxxxx under a
power of attorney of CSI dated as of March
30, 1998 (EXHIBIT 3).
3.2 Subject to this conversion, the stockholding
of CS Intl. will be increased to 449.000
CSI-shares.
4. BALANCING OF
SHARE INTEREST: 4.1 Xxxxxxxx-Group and CS Intl. will following
the conversion of the convertible bonds held
by CS Intl. undertake to meet their
obligations from their Shareholders
Agreement to equally balance their mutual
share interests in CSI as follows:
The total number of shares presently held by
Xxxxxxxx-Group amounts to 431.464.
The total number of shares then held by CS
Intl. amounts to 449.000.
50% of this joint shareholding is 440.232
shares. As a consequence thereof, CS Intl.
will have to transfer to Xxxxxxxx-Group
8.768 shares free of any charge (the
"Equalization Shares").
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4.2 Pursuant to this balancing of the share
interests between Xxxxxxxx-Group and CS
Intl., the CSI shareholding will be split as
follows:
Xxxxxxxx-Group 440.232
CS Intl. 440.232
independent shareholders 170.437
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Total number of shares issued and
outstanding 1.050.901
with DM 17.120 convertible bonds
outstanding, and held by independent
shareholders, and valid for a maximum of 214
shares, raising the maximum number of shares
eventually issued and outstanding to
1.051.115
4.3 The Xxxxxxxx Group keeps deposited 76,558
CSI shares, 9,245 plus 67,313 shares, in the
Deposit Account under the Deposit Agreement.
Such shares owned by the Xxxxxxxx-Group
shall then be covered by the Deposit
Agreement and only released as provided for
in these Heads of Agreement and the Revised
Shareholders' Agreement.
5. SALE AND TRANSFER
OF SHARE INTEREST: Xxxxxxxx-Group agrees to sell and to
transfer to CS Intl. 18.013 CSI-shares (the
"Additional Shares") in consideration for a
cash payment of DM 4.750.000. The payment
will become due and payable at the Closing,
as defined below, in exchange for the
transfer of the Additional Shares, whereby
CS Intl. and the Xxxxxxxx-Group shall
declare a set-off between the obligation of
the delivery of the Equalization Shares and
8,768 of the Additional Shares requiring
Xxxxxxxx-Group. to transfer and deliver to
CS Intl. 9,245 of the Additional Shares.
Such Additional Shares shall be delivered
into the Deposit Account and covered by the
Deposit Agreement.
6. OPTION FOR
CONTROL INTEREST: 6.1 Xxxxxxxx-Group grants to CS Intl. the option
to purchase 67.313 CSI-shares (the "Control
Shares") which together with the other CSI
shares then held by CS Intl. would vest a
majority share interest in CS Intl. (440.232
+ 18.013 + 67.313 = 525.558 shares out of a
maximum number of 1.051.115) assuming CS
Intl. has not previously disposed of its CSI
shares.
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6.2 The option price for the Control Shares
shall be DM 17.750.000.
6.3 The option shall be exercisable by CS Intl.
by written notice at any time prior to
January 10, 1999 and shall expire
thereafter.
6.4 The option price shall be due and payable
within 10 days from the date of receipt by
Xxxxxxxx-Group of the written option notice
in exchange for the transfer and delivery to
CS Intl. of the Control Shares, to be kept
in the Deposit Account under the Deposit
Agreement but owned by CS Intl., such
payment of the option price, transfer and
delivery being subject to the clearance of
the acquisition of the Control Interest by
the German Merger Control Authorities. Such
10-day period shall be extended by the
period of time until the exercise of the
option and the acquisition of the Control
Interest has been cleared by the German
Merger Control Authorities plus additional
10 working days from the receipt of the
clearance letter by CS Intl.
7. VOTING RIGHTS: 7.1 CS-Intl. will be entitled to the voting
rights from the Additional Shares from the
date of their transfer in conformity with
Clause 5.
7.2 Equally, CS-Intl. will win the additional
voting rights from the Control Shares upon
their transfer in conformity with Clause
6.4.
8. DIVIDEND RIGHTS: Rights to receive dividends from the
Additional Shares and the Control Shares
will be split, with respect to the net
amount of such dividend payment after
deduction of all German and US taxes to be
paid by CSI and CS Intl. thereon, between
Xxxxxxxx-Group and CS Intl. pro rata
temporis with respect to the business year
during which the transfer occurred. CS Intl.
as transferee will pay to Xxxxxxxx-Group
such portion of the dividends received for
the Additional Shares and for the Control
Shares as will be determined by the pro rata
apportionment of shareholdings on the basis
of a 365 days year.
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9. RESIDUAL SHARES
PURCHASE OPTION: 9.1.1 The Xxxxxxxx Group grants to CS Intl. the
option to purchase all of the residual
CSI-shares held by Xxxxxxxx-Group following
the transfer to CS Intl. of the Additional
Shares and the Control Shares, i.e. the
option to purchase 354.906 CSI-shares or any
smaller number of CSI-shares resulting from
subsequent sales in conformity with clause
9.3 (the "Residual Xxxxxxxx 9.1.1 Shares").
This option shall be exercisable by CS Intl.
by written notice at any time through
December 31, 1999 at the latest and shall
expire thereafter (the "9.1.1 Option"). The
option price shall cost DM 162 per share.
9.1.2 In case CS Intl. does not exercise the
option granted in Section 6.2 with respect
to the Control Interest, CS Intl. is still
entitled to exercise the option for all
shares remaining without the acquisition of
the Control Shares ("Residual Xxxxxxxx 9.1.2
Shares"). Such option shall be exercisable
by CS Intl. by written notice at any time
prior to December 31, 1999, at the latest,
and shall expire thereafter (the "9.1.2
Option"). The Option Price shall cost DM
178,20 per share.
9.2 The Option Price shall be due and payable
within 10 days from the date of receipt by
the Xxxxxxxx-Group of the written Option
Notice in exchange for the transfer and
delivery to CS Intl. of the Residual
Xxxxxxxx Shares under the 9.1.1 Option or
the 9.1.2 Option, all such shares to be kept
in the Deposit Account under the Deposit
Agreement but owned by CS Intl., such
payment of the option price, transfer and
delivery being subject to the clearance by
the German Merger Control Authorities. Such
10-day period shall be extended by the
period of time until the exercise of the
option and the acquisition of the Control
Interest has been cleared by the German
Merger Control Authorities plus additional
10 working days from the receipt of the
clearance letter by CS Intl.
9.3 Xxxxxxxx-Group shall during the option
periods under Clause 6 or this Clause 9 not
sell, give away, transfer, pledge, or assign
any of these Residual Xxxxxxxx Shares unless
in conformity with the provisions hereunder:
(1) Xxxxxxxx-Group shall be allowed to
sell shares in small numbers on the
Stock Exchange not exceeding during
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any CSI business year 10,000
CSI-shares. Xxxxxxxx-Group shall
promptly inform CS Intl. of each
sale of shares hereunder by quoting
the number of shares sold. Upon
receipt of such notice from
Xxxxxxxx-Group, CS Intl. shall
release the respective shares from
the Deposit Account by giving
notice to Deutsche Bank AG, as
provided for under the Deposit
Agreement.
(2) Xxxxxxxx-Group shall be permitted
to sell blocks of 10,000 or more
CSI-shares during any CSI business
year by private sales to one or
more third parties interested in
buying those shares. CS Intl. has
the right of first refusal
(Vorkaufsrecht) within the meaning
of Sections 504pp. of the German
Civil Code (BGB) with respect to
such sales hereunder. Irrespective
of the right of first refusal for
CS-Intl., Xxxxxxxx Group shall
disclose at least 20 days before
such sale to third parties may take
place the intention to sell and the
purchasing terms with a third party
to give CS-Intl. the freedom to
exercise its option to buy the
Residual Xxxxxxxx Shares.
10. ADMITTANCE OF
CSI SHARES TO
STOCK EXCHANGE: The former CSI-bearer preferred shares have
been converted into ordinary bearer shares
and are registered for trading at the
regulated markets at the Stuttgart and
Frankfurt stock exchanges. CS Intl. and
Xxxxxxxx-Group agree to ask the CSI
management to apply for admittance of all of
the CSI-shares issued and outstanding for
trading at the regulated markets (Geregelter
Verkehr) of the two stock exchanges,
provided that CSI has not acknowledged and
will not acknowledge the German Take-Over
Codex. CSI management will be mandated and
authorized to render all information and all
necessary support for the admittance for
trading of these shares over the stock
exchanges.
11. BOARD OF SUPERVISORS: The CSI Board of Supervisors is composed of
nine members of which three are elected by
the CSI work force. Upon the transfer of the
Control Shares to CS Intl. Xx. Xxxxxx
Xxxxxxxx will resign from the Board and will
be elected to become its lifetime honorary
chairman without a vote, though with the
right to use his office at CSI premises.
11.1 From and after the transfer of the Control
Shares to CS Intl., Xxxxxxxx-Group will
still be entitled to hold one seat on the
CSI Board of Supervisors and CS Intl. agrees
to
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support the election of always one
Xxxxxxxx-Group nominee to the Board also
with the right to have one office at CSI
premises reserved for his/her use. This
privilege for the Xxxxxxxx-Group will last
until such time when Xxxxxxxx-Group will no
longer own 15 % or more of the CSI-shares
issued and outstanding.
11.2 If CS' accounting firm confirms in writing
that the election of two Xxxxxxxx-Group
nominees to the Board and the procedure
agreed upon hereunder or any other mutually
acceptable procedure does not prevent CS
from consolidating CSI into its annual
accounts under US Accounting Rules, the
Xxxxxxxx-Group will be entitled to hold two
seats on the CSI Board of Supervisors and CS
Intl. support the election of always two
Xxxxxxxx-Group nominees to the Board, also
with the right to have one office at the CSI
premises reserved for their use. This
privilege for the Xxxxxxxx-Group will last
until such time as the Xxxxxxxx-Group no
longer owns 15% or more of the CSI-Shares
issued and outstanding.
The Xxxxxxxx-Group covenants that always one
of its two nominees on the Board at the
request of CS Intl. shall support and vote
for all resolutions proposed by CS Intl.
which do not violate these Heads of
Agreement or the Revised Shareholders'
Agreement or which do not relate to matters
requiring qualified majority of
shareholders' of at least 75% of the votes
in the shareholders' meeting. EXHIBIT 4 is
the irrevocable power of attorney by the
Xxxxxxxx-Group to CS Intl. to vote in the
shareholders' meeting of CSI for the
resignation of such of the Xxxxxxxx-Group
nominees who fail to vote in favor of
resolutions proposed by CS Intl. as agreed
hereunder.
11.3 The Xxxxxxxx-Group covenants that one or two
additional members of the Board of
Supervisors, who were nominated by the
Xxxxxxxx-Group, will resign from such Board
within 10 days from the exercise of the
option to buy the Control Interest depending
on how many seats on the board of
Supervisors go to CS-Intl. under Section
11.1 or 11.2, respectively. The
Xxxxxxxx-Group shall fully back and assist
CS-Intl. that its nominees shall be
appointed to the Board of Supervisors
instead o the two or three nominees from the
Xxxxxxxx-Group resigning, such appointment
to be made either by application to the
Commercial Register
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Court or in calling an extraordinary
shareholders' meeting of CSI.
12. DIVIDEND POLICY: CS Intl. and Xxxxxxxx-Group agree to cause
their nominees on the Board of Supervisors
to vote for the proposal to the annual
shareholders meeting of a dividend for the
next three dividend periods as follows:
- for 1997/1998 DM 6,00 dividend plus DM
2,00 bonus per share
- for 1998/1999 DM 7,00 dividend per share
- for 1999/2000 DM 7,00 dividend per share
and also to vote in the shareholders meeting
in favor of such proposal, always provided
that the annual surplus as shown on the CSI
audited balance sheet in each of the
business years will be in excess of DM 12
mio.; otherwise the payouts for dividends
and bonus will be reduced proportionately to
the deficit below DM 12 mio. annual surplus.
For subsequent periods the parties will
endorse proposals for a payout of always up
to 50 % of the annual surplus.
CS Intl. is only required to cause their
nominees on the Board of Supervisors or to
vote in the shareholders' meeting in favor
of the dividend policy as agreed upon above
if (i) CSI has sufficient funds and
liquidity to pay out such dividends, (ii)
CSI is and after the payment of such
dividends will be in full compliance with
and can satisfy all obligations of all
material agreements having an impact on the
dividends, e.g. loan agreements and profit
participation capital, (iii) such
distributions will not impair CSI's ability
to meet any of its obligations, e.g. as a
joint venture partner in the proposed
Philippine project, and (iv) CSI can fully
meet the on-going capital requirements as
projected or to be projected in the yearly
budgets established by the Management Board.
The annual surplus will be determined from
the annual accounts in accordance with
general accounting rules and procedures
under German law consistently applied. CS
Intl. will favorably consider the on-going
appointment of Xx. Xxxxxxxxx as tax advisor
to CSI, whereby CS Intl. has the freedom to
arrange for the appointment of the auditors
of CS as statutory auditors of CSI.
Any dividend payout commitment will expire
as soon as Xxxxxxxx-Group no longer holds 15
% or more of the CSI-shares issued and
outstanding.
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13. TAKE ALONG
COMMITMENT: If CS Intl. should elect within 5 years from
the Closing to sell or to otherwise transfer
to a party unrelated to CS Intl. by majority
vote or ownership more than 35 % of all of
the CSI-shares issued and outstanding
Xxxxxxxx-Group shall be entitled to demand
from CS Intl. the procurement of a put
option on a pro rata basis to the buying
third party for the Residual Xxxxxxxx Shares
at the equivalent prices and conditions. In
the event of a sale of all CSI-shares held
by CS Intl. , CS Intl. has the right to
require Xxxxxxxx-Group to sell all its
shares on the same terms and conditions as
CS Intl., but at least for a price per share
of DM 178,20 and Xxxxxxxx-Group shall
cooperate with and take reasonable steps
needed to effect such sale.
14. RESERVATIONS 1. CS, CS Intl. and the Xxxxxxxx-Group
shall work together to arrange for
the necessary filing of the
transactions contemplated hereunder
with the German Merger Control
Authorities. The conversion into
CSI shares under Section 3 above
and the acquisition of the
Additional Shares shall become part
of one joint filing. EXHIBIT 5 is
the confirmation by the Management
Board of CSI to assist in the
urgent filing for clearance with
the German Merger Control
Authorities and to give access to
all information related thereto by
freeing its respective personnel to
assist in this respect.
2. The Parties shall be bound to
refine these terms into a Revised
Shareholders Agreement according to
the terms of these Heads of
Agreement, such Revised
Shareholders' Agreement becoming
binding and enforceable upon the
procurement of all necessary
consents of the merger control
authorities having jurisdiction
thereon. Until such Revised
Shareholders' Agreement comes into
force, the Shareholders' Agreement
in place, as modified by its 1.
Amendment dated as of October 9,
1997 and as modified in these Heads
of Agreement, shall be binding on
the Parties hereto.
3. CS Intl. shall be entitled under
such Revised Shareholders Agreement
to conduct a due diligence
investigation in CSI following the
transfer of the Additional Shares
and prior to the elapse of the
option period through January 10,
1999. EXHIBIT 6 contains the
consent by the CSI Management Board
to allow auditors and attorneys
acting on behalf of
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CS and CS Intl. access to all
relevant information, subject to
standard confidentiality
commitments.
4. The Closing of this transaction for
the Additional Shares shall take
place on April 30, 1998, 4:00 p.m.
at the offices of Xxxxx &
Xxxxxxxxx, Lenzhalde 83 at
Stuttgart, or at another time and
date mutually agreed upon in case
the filing for the acquisition of
the Additional Shares has not been
cleared by the German Merger
Control Authorities by April 20,
1998. There is no individual
appearance of the Parties foreseen.
5. The Parties shall keep the contents
under these Heads of Agreement or
the revised Shareholders Agreement
confidential and shall not disclose
any pertinent information except as
this may be required under the
pertinent laws in the jurisdictions
to which CS Intl. and CSI are
subject, and except to potential
purchasers of CS or its affiliates.
15. GENERAL TERMS: 1. Xxxxxxxx-Group, CS and CS Intl.
will terminate the existing
Shareholders Agreements of January
7/8, 1993, and the 1. Amendment
thereto of October 9, 1997 with the
execution of the Revised
Shareholders Agreement.
2. The Revised Shareholders Agreement
shall be negotiated in English but
executed in German and shall be
subject to German law.
3. The obligations of the Parties
hereto shall run through until June
30, 2008 which also applies to
representations and warranties
hereunder, unless terminated
earlier by the Parties or because
of obsolescence. The liability of
the Xxxxxxxx-Group for the
representations and warranties made
herein shall run for 24 months
unless German law provides for a
longer statute of limitations
(Verjahrung).
4. German law applies to this
Agreement. These Heads of Agreement
shall be fully binding on the
Parties hereto. German law applies
excluding the CISC, if applicable.
5. Amendment, supplements or
modifications of the provisions of
this Agreement, including this
paragraph, shall, in order to be
effective, be in writing and
appropriately executed by the
Parties.
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6. The headings in this Agreement
serve only for the purpose of
better orientation in the text of
this Agreement. They are of no
significance to the content or
interpretation of this Agreement.
7. If provisions of this Agreement are
totally or partially legally
invalid or unenforceable, the
validity of the remaining
provisions shall not be affected.
The same applies if there is a gap
in this Agreement. In the place of
the invalid or unenforceable
provision, or to fill in any gap,
an appropriate provision should be
provided that, to the extent
possible, comes as close as
possible to what the Parties to
this Agreement wanted, or,
according to the meaning and
purpose of this Agreement, would
have wanted, if they had considered
the issue upon drafting this
Agreement or upon including a
provision at some later time. This
also applies when the invalidity of
a provision relates to a provision
in this Agreement concerning the
measure of performance or time
(period or date). In such cases, a
provision is to be substituted that
comes as close as possible to the
original intent while still being a
legally permissible measurement of
the performance or time (period or
date).
8. The members of the Xxxxxxxx Group
shall be deemed jointly and
severally liable for all
obligations entered into in this
Agreement in the name of the
Xxxxxxxx Group. CS and CS Intl.
shall equally be deemed jointly and
severally liable for all
obligations entered into in this
agreement by either of them.
9. All formal notices to be granted
under this Agreement must be in
writing to be effective. They shall
be deemed received no later than
three days after being deposited in
the mail, if at the same time as
depositing such in the mail, it is
also sent by telefax to the
recipient, and this recipient is
either the respective designated
agent or
if to the Xxxxxxxx Group
Xx. Xxxxxx Xxxxxxxx
Xxxxxxxxxxxxxx Xxx 00
Xxx/Xxxxx, Xxxxxxx
Telefax No. 49-731-3997-490
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and if to CS Int.
Xxxxx-Xxxxxxxx International,
Inc. X.X. Xxx 0000 Xxxxxxxx,
Xxxxx Xxxxxxxx 00000, XXX
Attn: Chief Executive Officer
Telefax No. (000) 000-0000
or the designated replacement
authorized recipient.
10. Exclusive venue shall be reserved
for the courts having ordinary
jurisdiction at Frankfurt/Main,
Germany.
Date/Place: Ulm/Anderson, March 30, 1998
---------------------------------------------------
Xxxxxx Xxxxxxxx
on behalf of the Xxxxxxxx-Group:
a) Xxxxxxxx Beteiligungsgesellschaft Burgerlichen Rechts, consisting of
Xxx. Xxxxxx Xxxxxxxx-Xxxx, Siesmayerstra(beta)e 4 A, 60323 Frankfurt
Xxxxxx Xxxxxxxx, Schaffelkinger Weg 13, 89077 Ulm/Danube
Xxxxxxxx Stiftung, Soeflingerstra(beta)e 246, 89077 Ulm/Danube, the
Xxxxxxxx Stiftung represented by its Managing Director, Xxxxxx Xxxxxxxx
b) Xx. Xxxxxx Xxxxxxxx, Schaffelkinger Weg 13, 89077 Ulm/Danube
--------------------------------------------------
Xxxxx-Xxxxxxxx International, Inc. and
Xxxxx-Xxxxxxxx, Inc., both Delaware companies,
X.X. Xxx 0000, Xxxxxxxx, Xxxxx Xxxxxxxx 00000, XXX
represented by X.X. Xxxxxxxx, Chairman and Attorney-in-Fact
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EXHIBIT 1
Xxxxxxxx Beteiligungsgesellschaft Burglichen Rechts Xxxxx-Xxxxxxxx International, Inc.
Xxx. Xxxxxx Xxxxxxxx-Xxxx
Xxxxxx Xxxxxxxx
Xxxxxxxx Stiftung
Xxxxxx Xxxxxxxx
Schaffelkinger Xxx 00 000 Xxxxxxxx Xxxxxx, Xxxxx 000
00000 Ulm/Danube Xxxxxxxxxx, Xxxxxxxx 00000
Germany USA
Deutsche Bank XX
Xxx Branch
Xxxxxxxxxxxx 00
00000 Xxx
March 30, 1998
RE: DEPOSIT OF 201,001 AND OF 199,000 BEARER SHARES OF CS INTERGLAS AG
Dear Ladies and Gentlemen:
We hereby notify you, based on the Deposit Agreement of March 25, 1993 between
Deutsche Bank AG, Xxxxxxxx Beteiligungsgesellschaft Burglichen Rechts and
Xxxxx-Xxxxxxxx International, Inc. as successor of Xxxxx-Xxxxxxxx Fiber Glass
Corporation that Deutsche Bank AG can release from the Deposit the 199,000
Bearer Shares of CS Interglas AG with the global certificate St. 157.679 Nr. 000
001 - 157 679 and St. 41.321 Nr. 378 695 - 420 015 and can hand over to Xxxxx
Xxxxxxxx International, Inc. and its representative such global certificates, as
well as release to the Xxxxxxxx-Group from their 201,001 shares by global
certificate for the shares No. 157,680 to 358,680 a number of 124,443 share but
keeping 76,558 shares in deposit under the continuing Deposit Agreement of March
25, 1993. The release to the Xxxxxxxx Group shall take place in exchange of the
global certificate for the 201,001 shares for one or more share certificates
representing 76,558 shares.
Yours sincerely,
Xxxxx-Xxxxxxxx International, Inc. Xxxxxx Xxxxxxxx
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EXHIBIT 2
XXXXX-XXXXXXXX INTERNATIONAL INC.
CS-Interglas AG
c/o Prof. Dr. K. Xxxxx Xxxxxxxxx
Xxxxx & Xxxxxxxxx
Lenzhalde 83-85
70192 Stuttgart
31. Marz 1998
CONVERSION OF CONVERTIBLE NOTES
Gentlemen:
Xxxxx-Xxxxxxxx International Inc. pursuant to the acquisition from
Xxxxx-Xxxxxxxx, Inc. holds DM 20.000.000 Convertible Notes issued by
CS-Interglas AG under and in accordance with Terms of Notes ("Terms"). Under
Sect. 2 para 4 of the Terms every holder of Notes is entitled to give notice of
its decision to convert.
Based upon the foregoing Xxxxx-Xxxxxxxx International Inc. hereby gives notices
to CS-Interglas AG of its election to have DM 20.000.000 Convertible Notes
converted into 250.000 bearer shares in the nominal value of DM 50,- per share
of CS Interglas AG to be issued from a contingent share capital authorized by
the shareholders meeting of February 26, 1993. This conversion shall become
effective as of June 30, 1998; the Convertible Notes shall bear interest through
March 31, 1998 and the Shares assigned upon conversion shall have pro rata
temporis rights to receive dividends from and after April 1, 1998.
We will tender the Convertible Notes in exchange for the newly issued shares on
June 30, 1998 or any other date as agreed at your offices.
Please confirm the due receipt of this notice by signing and returning to us the
enclosed copy.
Sincerely
Xxxxx-Xxxxxxxx International Inc. Confirmed:
By: ----------------------------------
--------------------------------
X.X. Xxxxxxxx, Attorney-in-Fact March 31, 1998 Prof. Xx. Xxxxxxxxx
as attorney-in-fact
for CS Interglas AG
under the attached Power
of Attorney of March 30, 1998
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EXHIBIT 3
[TO BE PRINTED ON THE STATIONARY OF CS-INTERGLAS AG AND EXECUTED BY TWO MEMBERS
OF THE MANAGEMENT BOARD (VORSTAND)]
POWER OF ATTORNEY
The undersigned CS-Interglas AG of Erbach, registered in the Commercial Register
of the Lower Court (Amtsgericht of Ulm) under HRB 2182 grants hereby to
Prof. Dr. K. Xxxxx Xxxxxxxxx
Xxxxx & Xxxxxxxxx
Lenzhalde 83-85
70192 Stuttgart
Federal Republic of Germany
the Power of Attorney to receive and accept on behalf of CS-Interglas AG the
exercise of the conversion of Deutsche Marks twenty million Convertible Bonds
held by Xxxxx-Xxxxxxxx, International, Inc. of 000 Xxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, XXX as well as to execute the receipt of having
received such exercise of the conversion. This Power of Attorney expires on
April 10, 1998. Xxxx. Xxxxxxxxx is relieved from the restrictions of Section 181
of the German Civil Code (BGB), and he is authorized to grant a sub-power of
Attorney within the limits of this Power of Attorney to members of his firm
Xxxxx & Xxxxxxxxx shown on such firm's stationary.
March 30, 1998
-----------------------------
CS-Interglas AG
16
EXHIBIT 4
POWER OF ATTORNEY
The undersigned Xxxxxx Xxxxxxxx on behalf of the Xxxxxxxx Group grants hereby to
Xxxxx Xxxxxxxx International, Inc.,
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
XXX
the Power of Attorney to vote in shareholder's meetings of CS-Interglas AG all
shares held by Xxxxxx Xxxxxxxx, Xxxxxxxx Beteiligungs Gesellschaft bR, Xxx.
Xxxxxx Xxxxxxxx-Xxxx and the Xxxxxxxx Stiftung as well as shares held
individually by Xx. Xxxxxx Xxxxxxxx (the "Xxxxxxxx Group"). This Power of
Attorney is restricted to votes on the withdrawal and dismissal of one member of
the Board of Supervisors of CS Interglas AG elected as nominees of the Xxxxxxxx
Group. This Power of Attorney is irrevocable. It expires if all shares held by
the Xxxxxxxx Group in CS-Interglas AG fall below 15% of all outstanding and
issue shares. CS International is relieved from the restrictions of Section 181
of the German Civil Code.
March 31, 1998
-------------------------------
Xxxxxx Xxxxxxxx
on behalf of the Xxxxxxxx Group
17
EXHIBIT 5
TO BE PRINTED ON THE STATIONERY OF CS INTERGLAS AG AND
EXECUTED BY TWO MEMBERS OF THE MANAGEMENT BOARD (VORSTAND).
Xxxxx-Xxxxxxxx International, Inc.
Xxxxx-Xxxxxxxx, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
XXX
March 31, 1998
RE: GERMAN MERGER CONTROL FILING WITH RESPECT TO THE
ACQUISITION OF MORE THAN 25% AND MORE THAN 50% OF
ALL SHARES OF CS INTERGLAS AG (CSI)
Dear Ladies and Gentlemen,
We hereby confirm that we will assist you in the preparation of all filings for
clearance with the German Merger Control Authorities with respect to your
acquisition of additional shares of CSI which increases your holdings in CSI to
more than 25% and more than 50%, respectively. Our personnel will be available
on short notice to assist in this respect so that the filing can be made with
the authorities within the shortest possible period of time.
Yours sincerely,
C.S. Interglas AG
18
EXHIBIT 6
TO BE PRINTED ON THE STATIONERY OF CS-INTERGLAS AG AND
EXECUTED BY TWO MEMBERS OF THE MANAGEMENT BOARD (VORSTAND)
Xxxxx-Xxxxxxxx International, Inc.
Xxxxx-Xxxxxxxx, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
XXX
March 31, 1998
RE: DUE DILIGENCE AT CS INTERGLAS AG (CSI)
Dear Ladies and Gentlemen,
We hereby confirm that you, your parent company Xxxxx-Xxxxxxxx, Inc., and their
accounting and legal advisors will be authorized to conduct a full due diligence
of the business of CS Interglas AG and of all its affiliates. We will give full
access to all books and records including those on disks, software, or other
non-hard copy memories. Our personnel shall be available for details,
explanations, and assistance. We assume that the due diligence will be conducted
within a reasonable period of time at our premises or otherwise as to be agreed
upon. Please notify us in advance of at least eight working days in writing as
soon as you have decided to start conducting the due diligence. This letter is
subject to the execution of the enclosed confidentiality covenant by you and by
Xxxxx-Xxxxxxxx Inc.
Yours sincerely,
CS-Interglas AG
19
EXHIBIT TO EXHIBIT 6
CONFIDENTIALITY COVENANT
The undersigned Xxxxx-Xxxxxxxx Inc. and Xxxxx-Xxxxxxxx International Inc., 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, XXX and X.X. Xxx 00000
Xxxxxxxx, XX 00000 hereby covenant, jointly and separately, to keep all
information retrieved during the conduct of due diligence of the business of
CS-Interglas AG and its affiliates strictly confidential. Such information shall
not be disclosed to any third parties except to accounting and legal advisors of
Xxxxx-Xxxxxxxx Inc. and/or Xxxxx-Xxxxxxxx International Inc. Copies shall only
be kept as far as is necessary for the proper documentation of the due diligence
report to be prepared by Xxxxx-Xxxxxxxx Inc., Xxxxx-Xxxxxxxx International Inc.
and its advisors.
March 30, 1998
-------------------------------- ---------------------------------
Xxxxx-Xxxxxxxx Inc. Xxxxx-Xxxxxxxx International Inc.
