EXHIBIT 4.18
Cirio Del Monte Italia S.p.A. in Extraordinary Administration
Xxx Xxxxxxxxxx, 00
00000 Xxxx
Xxxxx
and
Cirio Del Monte N.V.
Xxx Xxxxxxxxxx, 00
00000 Xxxx
Xxxxx
Rome, July 15, 2004
Dear Sirs:
As per our previous agreements, we hereby propose to execute a preliminary
purchase agreement according to the terms and conditions set forth below:
* * * * *
PRELIMINARY SALE AND PURCHASE AGREEMENT
BETWEEN
CIRIO DEL MONTE N.V., IN EXTRAORDINARY ADMINISTRATION, with offices in Rome, Xxx
Xxxxxxxxxx, 00, a company governed by Dutch law, subject to extraordinary
administration proceedings, in the persons of the Special Commissioners, Atty.
Xxxxx Xxxxxxx, Xx. Xxxxx Xxxxx and Prof. Atty. Xxxxxxx Xxxxxxxx (hereinafter
"CDMNV");
CIRIO DEL MONTE ITALIA S.P.A., IN EXTRAORDINARY ADMINISTRATION, with offices in
Rome, Xxx Xxxxxxxxxx, 00, a company governed by Italian law, subject to
extraordinary administration proceedings, in the persons of the Special
Commissioners,
1
Atty. Xxxxx Xxxxxxx, Xx. Xxxxx Xxxxx and Prof. Atty. Xxxxxxx Xxxxxxxx
(hereinafter "CDMI");
(Hereinafter, CDMNV and CDMI together shall also be referred to as the
"SELLERS")
AND
FRESH DEL MONTE PRODUCE N.V., a company operating under the law of the
Netherlands Antilles, with registered offices in De Xxxxxxxxxx 00, Xxxxxxx,
Xxxxxxxxxxx Antilles, in the person of its own attorney-in-fact, Xx. Xxxxxxxx
Abu-Ghazaleh (hereinafter designated as the "BUYER").
RECITALS
(A) In consequence of the declaration of insolvency, in accordance with Art. 3
of Legislative Decree no. 270 of 8 July 1999 and with the decree of the
Court in Rome on 10 October 2003, the Sellers, together with Cirio Holding
S.p.A. and Cirio Finanziaria S.p.A., were subjected to extraordinary
administration (the "CIRIO EXTRAORDINARY ADMINISTRATION"); and with the
decree of the Ministry of Productive Assets, issued on 14 October 2003,
Atty. Xxxxx Xxxxxxx, Xx. Xxxxx Xxxxx and Atty. Xxxxxxx Xxxxxxxx were
appointed Special Commissioners (hereinafter the "SPECIAL COMMISSIONERS").
(B) The plan - as provided for by Art. 54 and subsequent articles of
Legislative Decree no. 270 of 8 July 1999 (the "PLAN"), setting forth,
among other things, terms and conditions for the sale of the companies
and/or corporate investments directly or indirectly held by the Cirio
Extraordinary Administration - was approved by the Ministry of Production
Activities in a measure issued on 8 January 2004.
(C) Within the framework of the Plan, the Special Commissioners decided, among
other things, to begin proceedings to dispose of the following assets
(collectively the "DEL MONTE CORPORATE GROUP") together in a single sale:
(i) a business controlled by CDMI, comprising the San Xxxxxx plant and
related assets, legal
2
relationships and employees, as described in greater detail below; (ii)
shareholdings equal to 100% of the share capital of Del Monte Foods
International Limited, held by CDMNV; (iii) shareholdings equal to 100% of
the share capital in Del Monte South Africa Limited, held by CDMNV; (iv)
shareholdings equal to 44.41% of the share capital of Saico, held by
CDMNV, together with an option to purchase an additional 5.6% of the share
capital of Saico and warrants to subscribe for 26,650,000 shares of Saico;
and (v) ownership of the trademarks "Just Juice," "De L'Ora," "Energen
1-Cal," "One Cal" and related and subordinate trademarks, held by CDMNV,
and thereby licensed to companies belonging to the Del Monte Corporate
Group.
(D) For that purpose, the Special Commissioners - through announcements placed
in the national and international press on 28 November 2003 and on 6/12
February 2004 - solicited all potentially interested parties to express
their interest in purchasing the various assets and holdings of the Cirio
Extraordinary Administration, including the Del Monte Corporate Group.
(E) To those parties who, following publication of the announcement, had
demonstrated an interest in purchasing the Del Monte Corporate Group,
including the Buyer, upon the signing of a confidentiality agreement
(which was signed by the Buyer on February 13, 2004), the Special
Commissioners sent a set of rules containing the terms and conditions
governing the participation of the bidders in the Procedures and an
Information Memorandum containing a description of the Del Monte Corporate
Group, and, on the basis of these documents, the Special Commissioners
invited submission of non-binding offers for the purchase of the Del Monte
Corporate Group.
(F) The Buyer submitted its own non-binding offer, including a preliminary
draft of the Industrial Plan (as defined below) and accompanied by a
signed copy of the rules to indicate their acceptance (Appendix 1) on 7
April 2004.
(G) On the basis of the non-binding offers received, with the approval of the
Ministry of Industry and having received the favorable opinion of the
Oversight
3
Committee, on 17 May 2004, the Special Commissioners selected a limited
number of bidders (including the Buyer) that were permitted to conduct a
due diligence of certain of the legal, fiscal, accounting, commercial and
industrial aspects of the Del Monte Corporate Group. This was done in part
through access to data rooms containing confidential documents and through
subsequent provision of other documents, in part through meetings with the
managers of the Del Monte Corporate Group, and, finally, in part through a
visit to the production, industrial and storage sites in the Del Monte
Corporate Group.
(H) During the due diligence process, the Special Commissioners also
submitted, for the consideration of the selected bidders, including the
Buyer, an initial draft of this Agreement, which was then subjected first
to comment by the bidders and then to negotiation with the Special
Commissioners, as a result of which the Special Commissioners, on 18 June
2004, distributed to all the selected bidders the present version of the
Agreement, inviting them to submit, by 24 June 2004, a binding and
unconditional bid for the purchase of the Del Monte Corporate Group
pursuant to the terms and conditions set forth in the Agreement submitted
to them (including the appendices thereto).
(I) The binding offers were submitted by the bidders on 24 June 2004 and, on
the basis of said offers, the Special Commissioners convened two bidders,
including the Buyer, for clarifications of their respective offers;
following the meeting, after having received from the Buyer, on June 30,
2004, an amendment of its binding offer, with the approval of the Ministry
of Production Activities and the favorable opinion of the Oversight
Committee, the Special Commissioners on July 14, 2004 selected the binding
offer submitted by the Buyer, as amended (Appendix 2), informed the Buyer
of the formal acceptance of the contractual proposal contained in the
binding offer, and signed this Agreement.
NOW, THEREFORE, with true and binding effect with respect to the agreements
contained herein, the parties have agreed as follows:
1. DEFINITIONS
4
In addition to the terms defined elsewhere in this Agreement, the terms listed
below shall have, when used with an initial capital letter, the meanings
respectively attributed to them as follows:
1.1 SAN XXXXXX XXXXXXXX means the amount of minus 8,700,000 (minus eight
million seven hundred thousand) euros, which the Buyer, in accordance with
its own Binding Offer, recognized as goodwill for the San Xxxxxx Business,
and which constitutes the established, fixed and unmodifiable portion of
the San Xxxxxx Xxxxx.
1.2 SECURED CREDITOR BANKS means the following lending institutions that have
extended loans to the Companies and the Subsidiaries, secured by liens,
included in the Secured Financial Debt: Cooperatieve Centrale Raiffeisen
Boerenleenbank B.A. - Rabobank, New York Life Inc., Burdale Financial
Limited.
1.3 FINANCIAL STATEMENTS means the latest consolidated financial statement,
approved and certified, for each of the Companies, appended to this
Agreement respectively as "Appendix 3" the Foods Financial Xxxxxxxxx,
"Xxxxxxxx 0" xxx Xxxxx Xxxxxx Financial Statement and "Appendix 5" the
Saico Financial Statement.
1.4 BUSINESS TRANSFER AGREEMENT means the Agreement in Appendix 6 by means of
which the sale of the San Xxxxxx Business shall be effected on the Closing
Date.
1.5 SUBSIDIARIES means, jointly, the companies listed in Appendix 7, which are
all directly or indirectly controlled by the Companies.
1.6 PRINCIPAL SUBSIDIARIES means the following Subsidiaries:
(a) Subsidiaries controlled directly or indirectly by Foods:
- Del Monte Foods Europe Ltd (UK 100%)
- Del Monte Foods Northern Europe Ltd. (UK 100%)
- Del Monte Europe Ltd (UK 100%)
- Del Monte International Inc. (Panama 100%)
- Del Xxxxx Xxxxx Ltd (Kenya 99.70%)
- Del Monte Belgium S.A. (Belgium 100%)
- Del Monte Deutschland GmbH (Germany 100%)
5
- Cirio Del Monte France SA (France 99.79%)
- Del Monte Hellas SA (Greece 100%)
(b) Subsidiaries controlled directly or indirectly by South Africa:
- Premier Pineries Pty Ltd (South Africa 100%)
- Xxxxxx Xxxx'x Pty Ltd (South Africa 100%)
- Zanthus Investments Pty Ltd (South Africa 100%)
- Amalgamated Fisheries Company Pty Ltd (South Africa
100%)
- Utopia Asparagus Pty Ltd (South Africa 100%)
1.7 CLOSING DATE means the date, to be established in accordance with Art. 6.1
hereunder, on which the Closing of this Agreement shall take place
following satisfaction of all the conditions and fulfillment of all the
terms set forth in Art. 8 hereunder.
1.8 SECURED FINANCIAL DEBT means the aggregate amount of debt owed by the
Companies and Subsidiaries, in their capacity as debtors and guarantors,
on the Closing Date, to the Secured Creditor Banks (as capital, interest,
interest on arrears, fines, expenses, costs, commissions and accessories
owed in accordance with the pertinent loan contracts) in the final amount,
which CDMNV shall communicate to the Buyer by the Closing Date and which
shall be paid, in full, to the Secured Creditor Banks on the Closing Date
in compliance with the provisions of Art. 5.3. On June 30, 2004, the
Secured Financial Debt amounted to 91,711,000 euro as broken down in
Appendix 8. The Buyer expressly acknowledges and accepts that the Secured
Financial Debt does not include all debt of a financial nature nor all
debt secured by liens of the Companies or Subsidiaries to banks or third
parties (including, without limitation, suppliers, employees or
customers), but rather indicates, as is convention, only debts to Secured
Creditor Banks.
1.9 INTRAGROUP DEBT means the net aggregate amount of debt owed by the
Companies and Subsidiaries, on the Closing Date, to the Cirio Group in the
final amount, including principal and accrued interest, if applicable,
which CDMNV shall communicate to the Buyer by the Closing Date. The
Intragroup Debt shall be
6
determined by CDMNV, after consulting the Buyer, setting off, to the
extent of each debt, the book value of the receivables held by each
Company and each Subsidiary against the Cirio Group, with the
understanding that set-off shall not be made wherever it is forbidden by
laws governing matters in extraordinary administration or other bankruptcy
proceedings and with the exception of the provisions of Art. 5.2 (b)
hereunder. The table in Appendix 9 contains a description of the creditor
and debtor relations, as of April 30, 2004, among the Companies and
Subsidiaries and the Cirio Group, indicating the book value of the
receivables on said date. The Intragroup Debt amounted to 178 million euro
(not including any set-offs) on said same date.
1.10 CLOSING means the completion of the sales addressed in this Agreement and
the taking of all the actions and carrying out of all the procedures that
the Parties have agreed to take and carry out on the Closing Date in
accordance with Art. 8 hereunder.
1.11 FOODS means Del Monte Foods International Limited, a company governed by
English law, wholly owned by CDMNV.
1.12 BANK GUARANTEE means the first-request bank guarantee issued by
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. (Rabobank) Milan
branch, in the interest of the Buyer and on behalf of the Sellers on the
date of the signing of this Agreement in the form appended to this
Agreement in Appendix 10, in guaranty of the Buyer's payment obligations
under Art. 5, obligation to pay any indemnity for termination under Art. 6
hereunder and, to a lesser extent subsequent to the Closing, fulfillment
of its obligations under Art. 10, which will expire on the second
anniversary of the Closing Date. The Bank Guarantee was granted for an
amount equal to (euro) 234,400,001 (two hundred thirty-four million four
hundred thousand and one).
1.13 SECURITY INTERESTS means liens, mortgages and other prejudicial interests
that will encumber the Shareholdings or assets of the Companies or
Subsidiaries in connection with the Secured Financial Debt on the Closing
Date.
7
1.14 CIRIO GROUP means the Cirio Extraordinary Administration and the companies
which it directly or indirectly controls, with the exception of the
Company and the Subsidiaries. The Cirio Group does not include Del Monte
Pacific Limited, a company listed on the Singapore stock market, in which
the Cirio Extraordinary Administration holds a minority share.
1.15 TRADEMARKS means the trademarks listed in Appendix 11A, presently used by
the Del Monte Corporate Group in the exercise of its activities.
1.16 NV TRADEMARKS means the trademarks highlighted in Appendix 11B, presently
licensed by CDMNV on behalf of the Company or the Subsidiaries, the
ownership of which shall be transferred by CDMNV to the Buyer on the
Closing Date.
1.17 SAN XXXXXX NET WORTH means the algebraic sum on a date as close as
possible to the Closing Date of the activities, assets and liabilities
included in the San Xxxxxx Business as determined by the Auditor pursuant
to Art. 5.2 (c) of this Agreement.
1.18 BINDING OFFER means the binding offer made by the Buyer within the
framework of the procedure on 24 June 2004 as amended and supplemented by
a letter dated June 30, 2004.
1.19 FOODS SHAREHOLDINGS means shares equal to 100% of the Foods share capital
held by CDMNV.
1.20 SAICO SHAREHOLDINGS means, jointly, (i) shares equal to 44.41% of the
Saico share capital, held by CDMNV; (ii) the right to purchase for USD one
of an estimated additional 5.6% of the share capital of Saico; and (iii)
warrants to subscribe an additional 26,650,000 shares of Saico.
1.21 SOUTH AFRICA SHAREHOLDINGS means shares equal to 100% of the South Africa
held by CDMNV.
1.22 SHAREHOLDINGS means, jointly, the Foods shareholdings and the South Africa
shareholdings.
8
1.23 INTERIM PERIOD means the period going from the date of the signing of this
Agreement by the Sellers up to and including the Closing Date.
1.24 INDUSTRIAL PLAN means the business and investment plan for the San Xxxxxx
Business, which the Buyer submitted as a integral part of its Binding
Offer and which is attached hereto as Appendix 12.
1.25 NV TRADEMARKS PRICE means the price offered by the Buyer for the NV
Trademarks in accordance with the Binding Offer, set at the fixed,
unamendable amount of 10,000,000 (ten million) euros.
1.26 SHAREHOLDINGS PRICE means the price assigned to the Shareholdings and
apportioned among them according to the stipulations of Art. 5.2 (b) and
shall equal the difference between the Shareholdings Value and the
Intragroup Debt, with the understanding that, as provided for in Art. 5.2
(b) (iii), the amount of the Shareholdings Price shall be calculated by
CDMNV and communicated to the Buyer in compliance with the provisions of
this Agreement, five business days prior to the Closing Date.
1.27 SAICO PRICE means the price offered by the Buyer, in accordance with the
Binding Offer, with respect to the Saico , set at the fixed, unamendable
amount of 1 euro.
1.28 SAN XXXXXX XXXXX means the price assigned to the San Xxxxxx Business,
which shall be set by the Auditor on the Closing Date in accordance with
Art. 5.2 (c), and shall be equal to the algebraic sum of the San Xxxxxx
Xxxxxxxx plus the San Xxxxxx Net Worth.
1.29 ANTITRUST PROCEDURE means the procedures that the Buyer must carry out
before the competent antitrust authority, or authorities, for the purposes
of obtaining the authorizations and the clearances required for the
purchase of the Del Monte Corporate Group or of any of its parts.
9
1.30 SAN XXXXXX BUSINESS means the business held by CDMI, composed of the San
Xxxxxx plant and related assets, legal relationships and employees, as
described in greater detail in Art. 3 hereunder.
1.31 AUDITOR means the auditing firm of PriceWaterhouseCoopers, charged with
determining the San Xxxxxx Net Worth, on the Closing Date, pursuant to
Art. 5.2 (c) hereunder and Art. 1473 of the Civil Code.
1.32 SAICO means the Siam Agro Industry Pineapple & Others PCL, a company
governed by Thai law, quoted on the Bangkok stock exchange and currently
placed on the register of companies in rehabilitation.
1.33 COMPANIES means, jointly, Foods and South Africa.
1.34 SOUTH AFRICA means Del Monte South Africa (Proprietary) Limited, a company
governed by South African law, and wholly owned by CDMNV.
1.35 SHAREHOLDINGS VALUE means the amount of 123,100,000 (one hundred
twenty-three million one hundred thousand) euros, indicated by the Buyer
in the Binding Offer as the purchase price for the Shareholdings, on the
assumption that the Intragroup Debt is equal to zero.
2. PURPOSE
2.1 CDMI agrees to sell, -- subject to the terms and conditions set forth in
this Agreement -- ,the Shareholdings, the Saico Shareholdings and the NV
Trademarks to the Buyer who, under said terms and conditions, agrees to
purchase the San Xxxxxx Business on the Closing Date at the San Xxxxxx
Xxxxx.
2.2 CDMNV agrees to sell, -- subject to all the terms and conditions set forth
in this Agreement -- ,the Shareholdings, the Saico Shareholdings and the
NV Trademarks to the Buyer who, under said terms and conditions, agrees to
purchase the Shareholdings and the NV Trademarks, on the Closing Date, for
the Shareholdings Price, the Saico Price and the NV Trademarks Price,
respectively, while simultaneously providing for the payment of balance on
the Secured
10
Financial Debt and the Intragroup Debt in accordance with the terms and
procedures provided for in Art. 5.3 hereunder.
2.3 The Buyer shall have the right (which must be exercised via written
communication to the Sellers prior to the Closing Date) to designate, for
the purchase of all or a part of the aforesaid assets, one or more
companies that it controls, with the understanding that, in said case, all
obligations of the Buyer under this Agreement in regard to the assets
purchased by the controlled company shall be binding upon the designated
company, or companies, and that the Buyer shall remain, nonetheless,
jointly and severally obligated with the designated company, or companies,
for the purchase and for the fulfillment of all obligations stipulated in
this Agreement.
2.4 The Buyer formally acknowledges that CDMI and CDMNV are obligated
severally, each solely in regard to its respective buy and sell
obligations provided for pursuant to Arts. 2.1 and 2.2, without any joint
obligation. However, without prejudice to the foregoing, in the event that
the Buyer fails to fulfill its obligations to one of the Sellers on the
Closing Date, the other Seller shall be entitled to refuse completion of
its own sale, such that the non-fulfillment of one agreement by the Buyer
shall allow for termination of all of the agreements.
2.5 In the event that CDMI fails to fulfill its obligation to sell the San
Xxxxxx Business or that CDMNV fails to fulfill its obligation to sell the
Saico Shareholdings and/or the NV Trademarks, without prejudice to the
grounds for damages that the Buyer may later claim against the defaulting
party, the Buyer shall be bound to proceed with the Closing in regard to
the other assets and shareholdings. However, in the event that CDMNV fails
to fulfill its obligation to sell the Shareholdings, the Buyer shall be
entitled to refrain from proceeding with the Closing and not to complete
the purchase of the San Xxxxxx Business, the Saico Shareholdings and the
NV Trademarks.
3. SAN XXXXXX BUSINESS
11
3.1 The San Xxxxxx Business shall be transferred from CDMI to the Buyer, or to
a company designated by the Buyer in accordance with Art. 2.3 above, in
accordance with Art. 27, paragraph 2, letter A) of Legislative Decree no.
270 of 1999 and with all other provisions applicable to transfers of
businesses by companies subject to Extraordinary Administration
proceedings, expressly included, without limitation, the provisions of
Art. 63, paragraphs 2 and 3, of Legislative Decree no. 270 of 1999.
3.2 The transfer shall be completed on the Closing Date through execution of
the Business Transfer Agreement and the completion of the other procedures
set forth in Art. 8 hereunder.
3.3 On the Closing Date, the San Xxxxxx Business shall include only the
following elements:
(a) Real estate.
(b) All tangible assets, wherever situated, comprising equipment,
machinery, leased assets and contracts for leased property
pertaining to the property located in San Xxxxxx.
(c) Recorded personal property.
(d) License for use of the Trademarks.
(e) Raw materials, semi-finished goods and stock.
(f) Employment contracts with respect to 100 employees presently working
at the San Xxxxxx plant, the San Polo offices and other offices
belonging to the Cirio Group and the seasonal workers employed to
meet the company's needs.
(g) The contracts entered into through the exercise of ordinary business
activities (such as utilities, etc.).
12
(h) All administrative and accounting documents related to the exercise
of business activities.
(i) Debt for employee severance indemnities accrued starting from the
date of the declaration of insolvency up until the Closing Date.
3.4 Appendix 13 contains a list of the items that make up the San Xxxxxx
Business (not counting the liabilities that, in accordance with the
provisions hereof, shall not be transferred to the Buyer) on 31 December
2003, based on the CDMI accounting records on said date. The Buyer
expressly acknowledges that during the Interim Period, the assets of the
San Xxxxxx Business may undergo changes as part of the ordinary course of
business and/or events outside the control of CDMI and that such any such
changes shall be reflected in the appendices to the Business Transfer
Agreement, which shall be prepared by the Auditor near the approach of the
Closing Date. During the Interim Period, should damages occur to the
assets of the San Xxxxxx Business that are in full or in part covered by
the existing insurance policies, the relevant claims vis-a-vis the
insurance company shall be transferred to the Buyer as part of the San
Xxxxxx Business and the amount thereof shall be included in the San Xxxxxx
Net Worth, as determined pursuant to Article 5.2(c) below. The Buyer,
without prejudice to the provisions of Art. 6.7 hereunder, declares that
the Buyer accepts (even at risk of violating Art. 1469 of the Civil Code)
that the subject of the transfer shall be the San Xxxxxx Business in the
de facto and de jure state in which it is found on the Closing Date
without said potential changes resulting in any right to the Buyer to
request amendments to the methodology for determining the San Xxxxxx Xxxxx
in this Agreement or amendments to other terms and conditions of said
Agreement or in any right to terminate said Agreement. Any claim that the
Buyer may have in this regard is expressly, irrevocably and
unconditionally waived by the Buyer.
3.5 Incorporated into the provisions of Art. 3.4 above, the Buyer also
expressly acknowledges that, during the Interim Period, CDMI shall
implement initiatives that it may deem appropriate in separating "mixed
contracts," i.e., contracts
13
between CDMI and third parties which concern both activity conducted by
the San Xxxxxx Business, which is subject of the transfer as provided for
in this Agreements, and the activity conducted by a CDMI business or
businesses, which are not the subject of this Agreement. Upon request of
the Buyer, CDMI shall duly inform the Buyer about the initiatives
implemented, it being understood that the Buyer acknowledges that, as the
result of such necessary activity, some of the contracts in question may
turn out to be non-transferable with the San Xxxxxx Business or may be
terminated or amended, and the Buyer declares that it has nothing to claim
with respect thereto.
3.6 In accordance with the provisions of Art. 63, last paragraph, Legislative
Decree No. 270/99, the Buyer shall have no liability for any debts of any
kind owed by the San Xxxxxx Business prior to the Closing Date. The San
Xxxxxx Business shall therefore be transferred free of any debt to
suppliers, banks, employees (with the exception of that which is expressly
provided for above), the state treasury, social security agencies and
third parties in general.
3.7 CDMI shall request, in a timely manner, that the Minister of Production
Activities shall proceed, within fifteen days of the Closing Date, in
accordance with Art. 64 of Legislative Decree No. 270/99, to cancel from
the registries any mortgage or other encumbrances, or any recorded
attachments or preventive attachments on the transferred assets.
3.8 In compliance with the provisions of Art. 63 of Legislative Decree No.
270/99, on the Closing Date, the 100 employees working in the San Xxxxxx
Plant, in the San Polo offices and in other offices belonging to the Cirio
Group shall be transferred with the San Xxxxxx Business. The employees,
therefore, shall maintain--without any interruption--their contracts
with the Buyer.
3.9 At the request of the Buyer, and subject to reaching of an agreement
regarding the contractual terms and CDMI's maintenance of the necessary
resources for such ends, CDMI will enter into a contract, on the Closing
Date, for a period of six
14
months, for the administration, on market terms, of the services provided
by CDMI to the San Xxxxxx Business.
4. SAICO SHAREHOLDINGS AND NV TRADEMARKS
4.1 The Saico Shareholdings shall be transferred to the Buyer, or to an entity
designated by the Buyer pursuant to Art. 2.3 above, on the Closing Date,
by completing all the formalities necessary for this purpose. The sale of
the Saico Shareholdings shall be governed by all the terms and conditions
of this Agreement, even if these are not repeated or restated in
completion of the required formalities, with the Parties mutually
acknowledging that completion of these formalities (even if consisting of
the signature of transfer agreements) shall not constitute an amendment or
novation of this Agreement unless said purpose is expressly stated in
writing in a document signed by both the Parties.
4.2 The Saico Shareholdings shall be sold in the de facto and de jure state in
they are found on the Closing Date. The Buyer expressly acknowledges and
declares that the Buyer accepts that the Financial Statements shall
provided by CDMNV as a mere identifier and that the appending of the
Financial Statements to this agreement does not constitute, either
explicitly or implicitly, a guarantee of the contents or of the accuracy
of said contents by CDMNV. The sole warranties provided by CDMNV with
respect to the sales are those listed in Art. 9.1
4.3 CDMNV acknowledges that, on the starting date of the Interim Period, the
Companies shall control, directly or indirectly, the Subsidiaries, as
listed in Appendix 7, and shall use, as licensees or owners, the
Trademarks listed in Appendix 11A.
4.4 The Buyer acknowledges that it has performed all the necessary
investigations, with proper legal counsel, regarding the laws applicable
to buyers of the Saico Shareholdings, and, in general, to the Companies,
Subsidiaries and Saico, and that said investigations expressly exonerate
CDMNV from any responsibility in this regard. Without prejudice to the
foregoing general statements, with specific
15
reference to Saico, the Buyer hereby declares that it is aware of the fact
that: (i) this Company is listed on the Bangkok Stock Exchange, currently
recorded in the register of companies in rehabilitation, and that,
consequently, the Buyer, after purchasing the Saico Shareholdings, will be
required to launch a tender offer for the entire remaining capital of
Saico; (ii) Thai law has restrictions on ownership by foreign entities of
shares in companies which, like Saico, operate in the agricultural sector.
4.5 Ownership of the NV Trademarks shall be the subject of a transfer by CDMNV
to the Buyer on the Closing Date by satisfying all of the formalities
necessary for this purpose. The Buyer acknowledges and accepts that the NV
Trademarks shall be transferred by CDMNV in their de facto and de jure
state on the Closing Date. CDMNV guaranties exclusive ownership and
represents and warrants that, to the best of its knowledge, no formal
challenges have been raised by third parties regarding the validity of the
NV Trademarks or the alleged violation of another's intellectual property
rights. No guarantee, however, is furnished by CDMNV with respect to the
validity of the NV Trademarks or the possible violation of the
intellectual property rights of a third party which may result from their
use. CDMNV's responsibility in regard to the warranties provided in
reference to the NV Trademarks shall, in no event, exceed the amount of
the NV Trademarks Price.
5. PRICE
5.1 With respect to the sale that is the subject of the mutual obligations
undertaken in this Agreement, the Buyer agrees to pay, in the manner
specified below:
(a) for the Shareholdings, (i) the Shareholdings Price, as well as (ii) an
amount equal to the Intragroup Debt in as much as determined by CDMNV
pursuant to Art. 5.2 (b) hereunder, it being understood that the total
amount payable by the Buyer under (i) and (ii) shall be equal to the
Shareholdings Value as indicated by the Buyer in the Binding Offer,
equal to 123,100,000 euros and (iii) an amount equal to the Secured
Financial Debt as at the Closing Date, in
16
the manner and amount determined by CDMNV pursuant to Article 5.2(a)
below.
(b) for the Saico Shareholdings, the Saico Price, as indicated by the
Buyer in the Binding Offer, equal to 1 euro.
(c) for the San Xxxxxx Business, the San Xxxxxx Xxxxx as determined by the
Auditor pursuant to Art. 5.2 (c) hereunder, being the algebraic sum of
the San Xxxxxx Xxxxxxxx, as indicated by the Buyer in the Binding
Offer, plus the San Xxxxxx Net Worth;
(d) for the NV Trademarks, the NV Trademarks Price as indicated by the
Buyer in the Binding Offer, equal to 10,000,000 euros; and
5.2 No later than the fifth Business Day before the Closing Date:
(a) CDMNV shall determine, applying the criteria set forth in this
Agreement, and shall indicate to the Buyer, the amount of the Secured
Financial Debt, specifying in detail the payments to be made for
discharge of said Debt and the relevant payees;
(b) CDMNV shall determine, applying the criteria set forth in this
Agreement, and shall communicate to the Buyer, the amount of the
Intragroup Debt, specifying individually: (i) the off settings to be
made, subject to prior transfer of credit or debit positions; (ii) the
amount of receivables held by the Company or Subsidiaries against the
Cirio Group in regard to which provisions or depreciations were
performed by the Company or Subsidiaries and in respect of which,
therefore, the latter had to waive any rights thereto; (iii) under the
sole circumstance in which the Value of the Shareholdings does not
allow, once the aforesaid transactions have been carried out, the full
discharge of the Intragroup Debt, the amount of the Cirio Group's
receivables that must be waived, the identification by name of said
receivables and the procedure for discharge. For purposes of the
foregoing, CDMNV shall also inform the Buyer of the amount of the
Shareholdings Price and of the
17
assignment of said Price between the Foods Shareholdings and the South
Africa Shareholdings; and
(c) the Auditor--pursuant to, and for and purposes of, Art. 1473 of the
Civil Code, with the aid of CDMI, and applying the accounting
principals approved by the Board of Professional Accountants
consistent with the actions of CDMI in the preparation of its
financial statement at 31 December 2003 and with evaluation criteria
--shall inform the Buyer and CDMI of the amount of the San Xxxxxx Net
Worth, providing, in an appendix, a description, updated as close as
possible to the Closing Date, of the San Xxxxxx Business; and the same
being the sum of the San Xxxxxx Xxxxxxxx and the San Xxxxxx Net Worth
thus established--shall indicate the San Xxxxxx Xxxxx.
The conclusions of CDMNV and the Auditor pursuant to the preceding
provisions shall be definitive and non-appealable for the Parties,
except for material error.
5.3 In light of the above, the Buyer agrees to make the following payments, on
the Closing Date, with reference to the Shareholdings under the terms and
in the manner set forth below:
(a) a sum equal to the Secured Financial Debt shall be paid by the Buyer,
on behalf of the debtor Companies and Subsidiaries, directly to the
Secured Creditor Banks, for discharge of the Secured Financial Debt by
the respective debtors (or, only with regard to the portion of Secured
Financial Debt owed under guarantees and subject to previous agreement
with the relevant Secured Creditor Bank, to CDMNV, which, at the same
time, will use the amount received to pay, in its capacity as debtor,
such portion of the Secured Financial Debt), in compliance with the
instructions that CDMNV shall communicate to the Buyer pursuant to
Art. 5.2 (a) above;
(b) a sum equal to the Intragroup Debt, within the limits set forth in
Article 5.2(b) above, shall be paid by the Buyer to CDMNV for the
benefit of the creditor
18
companies, or directly to the latter, for discharge of the Intragroup
Debt by the respective debtors in compliance with the instructions
that CDMNV shall communicate to the Buyer pursuant to Art. 5.2(b)
above;
(c) the Shareholdings Price shall be paid by the Buyer to CDMNV via bank
transfer to the bank account that shall be indicated by CDMNV at least
five days before the Closing Date.
Notwithstanding the provisions set forth above, by entering into this
Agreement, the Buyer shall assume payment obligations with respect to the
Intragroup Debt and the Secured Financial Debt exclusively vis-a-vis the
Sellers and not vis-a-vis the Secured Creditors and the creditor companies
on the Intragroup Debt.
5.4 Moreover, in regard to the Shareholdings:
(a) the Parties shall ensure, each within the scope of its own
responsibilities, that on the Closing Date, that the Companies and
Subsidiaries waive right to the receivables they have against the
Cirio Group that, prior to the Closing Date, shall have been written
down or for which provisions shall have been made, in the amount of
these write-downs or provisions, or as otherwise indicated by CDMNV in
the communication mentioned in Art 5.2 (b);
(b) on the Closing Date, the Buyer shall waive, and shall ensure that the
Companies and Subsidiaries irrevocably and unconditionally waive, any
right of subrogation or recourse they might eventually have against
the Cirio Group with respect to repayment of the Secured Financial
Debt or the Intragroup Debt.
5.5 The Saico Price shall be paid by the Buyer to CDMNV on the Closing Date,
by bank transfer to the bank account that shall be indicated by CDMNV at
least five days before the Closing Date.
19
5.6 The NV Trademarks Price shall be paid by the Buyer to CDMNV on the Closing
Date, by bank transfer to the bank account that shall be indicated by
CDMNV at least five days before the Closing Date.
5.7 The San Xxxxxx Xxxxx shall be paid by the Buyer to CDMI on the Closing
Date, by bank transfer to the bank account that shall be indicated by
CDMNV at least five days before the Closing Date.
5.8 The payments owed by the Buyer on the Closing Date are guarantied by the
Bank Guaranty. If, on the Closing Date, the Buyer fails to fulfill its
obligations to pay the price and/or pay the Secured Financial Debt or the
Intragroup Debt and/or fails to ensure the completions of other documents
and the fulfillment of other formalities, pursuant to Art.8, to be
satisfied or carried out by Buyer hereunder (with the exception of the
provisions of Art. 6.4), each of the Sellers, according to its competence,
shall be entitled to enforce the Bank Guarantee, allocating the proceeds
from said enforcement in compliance with the provisions of the aforesaid
provisions, and do so independently of every and any exception or claim
raised or made by the Buyer.
5.9 Both the Shareholdings Value and the Saico Price, the San Xxxxxx Xxxxx and
the NV Trademarks Price, as determined pursuant to this Agreement, are
fixed and cannot be amended and shall not be subject to any adjustment.
The Buyer acknowledges that it has examined the assets targeted in the
sale and that it has found them to be to its satisfaction and appropriate
to the use for which they are intended.
6. CONDITIONS PRECEDENT AND DISSOLUTION RIGHTS
6.1 The Closing Date shall be the tenth business day subsequent to the date of
fulfillment of the conditions precedent set forth in Art. 6.2 hereunder.
6.2 The obligation of the Parties to proceed with the Closing is conditional
upon the issuance of the antitrust consents and authorizations required
for such purposes, based on the applicable laws. The Buyer acknowledges
that it has performed the
20
required inquiry and, at the conclusion of said inquiry, it represents and
warrants to the Sellers that there are no subjective or objective
circumstances that might lead to the non-issuance of said consents and
authorizations. The eventual issuance of consents or authorizations,
conditioned upon fulfillment of directives established by the competent
authorities, shall constitute fulfillment of the conditions precedent set
forth in Art. 6.2, with fulfillment of the directives themselves
continuing to be the responsibility of the Buyer.
6.3 In consideration whereof, the Buyer agrees to initiate the Antitrust
Procedure no later than ten business days after this Agreement is signed
by the Sellers and that it shall be exclusively responsible for carrying
out all activities necessary to this end, notwithstanding the Sellers'
obligation to ensure that the Companies give the Buyer all reasonable
cooperation the Buyer needs to obtain a positive outcome in the Antitrust
Procedure or to comply with other obligations incumbent upon the Buyer.
6.4 If
(a) any of the competent authorities refuse to grant authorization or
permission for the purchase of the Del Monte Corporate Group or for
one or more of the entities that make up the same (including the San
Xxxxxx Business, the Saico Shareholdings and the Shareholdings); or
if
(b) after 120 days from the signing date of this Agreement (or such
longer term as the Sellers may eventually grant pursuant to Article
6.5 below), the Buyer has not yet obtained all required
authorizations and consents;
the following shall occur:
(i) if the denied or un-issued authorization involves the Saico
Shareholdings, the obligation of the Parties to proceed with the
Closing shall be relieved only with respect to the Saico
Shareholdings themselves, with all other obligations of the Parties
pursuant to this Agreement remaining valid, and the Buyer shall be
obliged to pay CDMNV the fixed, unamendable
21
amount of 1,000,000.00 (one million) euros, which the Buyer
recognizes as fair compensation for the costs accrued by CDMNV in
regard to these transfer procedures and for the damage consequent to
the need to repeat said procedures in regard to the Saico
Shareholdings or otherwise provide for the transfer of said
Shareholdings;
(ii) if the denied or un-issued authorization involves the San Xxxxxx
Business, the obligation of the Parties to proceed with the Closing
shall be relieved only with respect to the San Xxxxxx Business
itself; it being understood that all other obligations of the
Parties pursuant to this Agreement shall remain valid, and the Buyer
shall be obliged to pay CDMI the fixed, unamendable amount of
5,000,000.00 (five million) euros, which the Buyer recognizes as
fair compensation for the costs accrued by CDMI in regard to these
transfer procedures and for the damage consequent to the need to
repeat said procedures in regard to the San Xxxxxx Business or
otherwise provide for the transfer of said San Xxxxxx Business; and
(iii) if the denied or unissued authorization involves the Shareholdings,
the obligation of the Parties to proceed with the Closing shall be
relieved with respect to all of the purchase and sales obligations
provided for in this Agreement, and the Buyer shall be obliged to
pay the Sellers the fixed, unamendable amount of 10,000,000.00 (ten
million) euros, which the Buyer recognizes as fair compensation for
the costs accrued by the Sellers in regard to these transfer
procedures and for the damage consequent to the need to repeat said
procedures or otherwise provide for the transfer of the Del Monte
Corporate Group.
6.5 If, after 120 days from the signing date of this Agreement by the Sellers,
all of the required consents and authorizations have not been issued, but
the Antitrust Procedures are nevertheless underway, the Sellers may grant
the Buyer a further extension, not exceeding 60 days, to complete the
Antitrust Procedures, it being understood that, in such case, (a) if the
required consents and authorizations have
22
been issued in the meantime for purchase of the Shareholdings, the Parties
shall proceed with the Closing as concerns the Shareholdings and the other
items in the Del Monte Corporate Group for which the conditions set forth
in Art. 6.2 have been fulfilled; and (b) interest at the six months
Euribor rate increased by two percentage points, shall accrue from the
expiration of the 120th day from the signing date of this Agreement by the
Sellers until the Closing Date for the items in the Del Monte Corporate
Group for which it was impossible to proceed with Closing pursuant to
sub-paragraph (a) above.
6.6 The compensation set forth in Art. 6.4 hereunder shall be owed by the
Buyer, in the amount indicated therein, as a consequence of the
termination of the purchase and sale of the Del Monte Corporate Group or
of any of its parts, irrespective of the predictability or
unpredictability of reasons for the negative opinion (or failure of a
positive opinion) of the antitrust authority in question. CDMNV and CDMI
shall be entitled to demand payments under the Bank Guarantee in the event
that the Buyer fails to pay the compensation when the prerequisites for
such have been verified.
6.7 Occurrence of one of the following events during the Interim Period shall
give the Buyer just cause to declare as rescinded the obligation of the
Parties to proceed with the Closing in respect of the San Xxxxxx Business:
(a) loss of all or of a substantial part of the San Xxxxxx plant; or (b)
loss of all or of a substantial part of the rights due the San Xxxxxx
Business in respect of the trademarks indicated in Appendix 13. Within
five business days of the date on which the Buyer learned of the
occurrence of one of these events, the Buyer shall be entitled to declare
the obligations of the Parties to proceed with the Closing of the purchase
and sale of the San Xxxxxx Business without penalties or charges for any
of the Parties and without prejudice to the obligations of the Parties to
proceed with the Closing as regards the other assets targeted in the sale
pursuant to this Agreement.
6.8 If, during the Interim Period, the Buyer learns that one of the
representations or warranties provided by CDMNV in regard to the
Shareholdings pursuant to Art.
23
9.1 hereunder is false and, provided that said falsity cannot be corrected
prior to the Closing Date and that it is of such a nature as to alter
seriously the contractual relationships provided for in this Agreement,
the Buyer shall have the right -- which must be exercised, under penalty
of waiver thereof, within five successive business days -- to declare the
obligation of the Parties to proceed with the Closing rescinded without
penalties or charges for any of the parties.
6.9 Circumstances -- which are known to the Buyer for having been represented
within the due diligence process or which said Buyer could have known
employing ordinary diligence -- shall not give the Buyer just cause to
exercise the right of termination as provided in articles 6.7 and 6.8
above.
6.10 If cause should arise for the partial termination of this Agreement
pursuant to articles 6.4 (i) or (ii) or 6.7 above, the Sellers shall
retain the right to terminate this Agreement in their interest, an
exception without penalties or charges for any of the Parties and without
prejudice to the obligation of the Buyer to pay the compensation set forth
in articles 6.4 (i) and (ii).
7. INTERIM PERIOD
7.1 The Sellers agree to inform the Buyer, in a timely manner, of any act or
of any extraordinary or substantially relevant event of which they may
become aware with regard to Del Monte Corporate Group. The Sellers
represent that they have not granted their consent to any activity carried
out outside of the ordinary course by CDMI, the Companies and the
Principal Subsidiaries from June 24, 2004 through the date in which the
Interim Period begins.
7.2 Moreover, on the date of the signing of this Agreement by the Sellers,
said Sellers shall deliver to the Buyer statements attached to this
Agreement in Appendix 17, signed by the members of the board of directors
of the Companies pursuant to which said members shall assume the charge of
managing the Companies and of their respective Principal Subsidiaries for
the Buyer.
24
7.3 During the Interim Period, CDMI undertakes to manage the San Xxxxxx
Business in the ordinary course of business and that without the previous
written consent of the Buyer, such consent not to be unreasonably withheld
or delayed, (i) it shall not execute or terminate, before expiration, any
agreements with a value that exceeds (euro) 500,000 with customers and
suppliers; and (ii) it shall not hire new employees (except for seasonal
workers hired to meet the needs of the business in line with past
practice) nor change the terms and conditions of any employment contracts
other than changes made in compliance with law or the applicable
collective bargaining agreement).
7.4 Notwithstanding the obligations of the directors provided for in Appendix
17, the Companies and the Principal Subsidiaries shall be free to complete
the actions provided for therein, if necessary in order to: (i) fulfill
obligations or undertakings of the Sellers pursuant to this Agreement;
(ii) fulfill contractual undertakings or obligations of the Companies or
Subsidiaries, taken on prior to the starting date of the Interim Period;
(iii) comply with measures or directives of competent authorities; and
(iv) avoid serious prejudice to the Company or Subsidiary in question,
which, in the judgment of the Board of Directors of the Company or
Subsidiary, would result in the failure to complete, in a timely manner,
the action in question. In such cases, the Buyer may not claim fulfillment
of the actions in question.
7.5 Moreover, the Buyer shall be entitled to request the appointment of a
representative as an observer on the Board of Directors of the Companies
without the right to vote; if said request is made, the appointment shall
be carried out in as short a time as is reasonably possible, subsequent to
the signing of this Agreement by the Sellers.
7.6 The Buyer expressly acknowledges that, during the Interim Period, the
Companies and Subsidiaries shall continue to operate in order to improve
the terms and conditions for payment to the suppliers, which are currently
much worse than the market standard.
25
7.7 During the Interim Period, the Parties shall work together, as regards the
San Xxxxxx Business, to comply fully with the union consultations provided
for in Art. 47 of law no. 428 of 29 December 1990.
7.8 During the Interim Period, the Sellers shall do everything in their power
to allow the Buyer to have access to the information and documents
relating to the Del Monte Concern, in order to facilitate the acquisition
of control by the Buyer on the Closing Date and the fulfillment of the
disclosure obligations of the Buyer in connection with the transaction.
8. CLOSING
8.1 On the Closing Date - in presence, where required by the applicable law,
of a Notary, selected by the Sellers, at the location or locations
indicated by said Sellers - the Parties, each for its own part, shall
carry out, or cause the carrying out of, the following actions, which
shall be deemed completed simultaneously, even if they have been carried
out in different locations and in the chronological order indicated below:
(a) the Buyer shall repay the sum corresponding to the Secured Financial
Debt in accordance with the procedures indicated in Art. 5.3 (a);
(b) subject to performance of the required set-off and discharge according
to the indications of CDMNV pursuant to Art. 5.2 (b), the Buyer shall
repay the sum corresponding to the Intragroup Debt in compliance with
the procedures indicated in Art. 5.3 (b);
(c) the Buyer shall repay the Shareholdings Price in accordance with the
procedures indicated in Art. 5.3 (c);
(d) CDMNV shall do everything in its power to ensure that the Secured
Creditor Banks, subsequent to the payment set forth in Art. 5.3 (a),
issue a statement indicating that they have nothing further to claim
against the Companies
26
and/or Subsidiaries in regard to the Secured Financial Debt, and that
they initiate the actions required for the discharge of the Security
Interests;
(e) the Companies and the Subsidiaries shall issue to CDMNV a statement
(in the form set forth in Appendix 14), indicating their express
waiver of all claims that they have against the Cirio Group, which,
prior to the Closing Date, shall have been written down or for which
provisions shall have been made, in the amount of these write-downs or
provisions, except as otherwise indicated by CDMNV in the notices set
forth in Art. 5.2 (b);
(f) the Companies and the Subsidiaries shall issue to CDMNV a statement
(in the form set forth in Appendix 15), indicating their express
waiver of any right of subrogation or recourse to which they could
possibly resort with regard to the Cirio Group, with respect to the
payment of the Secured Financial Debt;
(g) CDMNV shall issue, in the name and on behalf, of the other companies
of the Cirio Group and/or ensure that, pursuant to, and for all
intents and purposes of, Art. 1381 of the Civil Code, these latter
companies directly issue a written statement with which they
acknowledge that, subsequent to the payment set forth in Art. 5.3 (b),
they shall have nothing further to claim, on any grounds or through
any title, against the Companies or Subsidiaries;
(h) the Companies and Subsidiaries, in turn, shall issue a written
statement to CDMNV on behalf of all the companies of the Cirio Group,
acknowledging that they have no claim, on any grounds or through any
title, against the companies of the Cirio Group, with the exception of
any remaining receivables owed to companies in extraordinary
administration or subject to bankruptcy procedures, which may have
remained after payment of the Intragroup Debt, in an amount to be
indicated in said document;
(i) CDMNV shall complete all the formalities needed to effect the transfer
of the Shareholdings to the Buyer;
27
(j) the Buyer shall pay the Saico Price in compliance with the provisions
of Art. 5.4;
(k) CDMNV shall complete all the formalities needed to effect the transfer
of the Saico Shareholdings to the Buyer;
(l) the Buyer shall pay the San Xxxxxx Xxxxx in accordance with the
procedures set forth in Art. 5.5;
(m) the Buyer and CDMI shall sign the Business Transfer Agreement;
(n) CDMI and the Buyer shall sign all documents, take all actions and
satisfy all formalities as are reasonably required or appropriate for
the purpose of ensuring that the Buyer takes possession of the San
Xxxxxx Business;
(o) the Buyer shall pay the NV Trademarks Price in compliance with the
provisions of Art. 5.6;
(p) CDMNV shall complete all the formalities needed to transfer the NV
Trademarks to the Buyer; and
(q) the Sellers shall issue to the Buyer a statement, addressed to the
bank issuing the Bank Guarantee, indicating acceptance of the
reduction in the amount of said Guarantee to a sum equal to
(euro)15,000,000 (fifteen million) as of the Closing Date, in
guarantee of the obligations of the Buyer pursuant to Art. 10 of this
Agreement.
8.2 CDMNV shall do everything within its power to ensure that the ordinary
meetings of the companies -- having on their agendas the replacement of
the administrative entities of the Companies with other entities composed
of individuals indicated by the Buyer -- are convened for the Closing Date
or for the nearest possible date subsequent to the Closing Date. The Buyer
expressly agrees that at this time CDMNV shall give to the members of the
boards of directors of the Companies and of Saico, or ensure that they are
given, ample waiver for claims arising from their service as members of
the boards of administration of the Companies or of
28
Saico, its being understood that when replacement of the board members of
the Companies or of Saico takes place after the Closing Date, the Buyer
itself shall be bound to give ample waiver under the same terms to the
resigning board members.
8.3 All costs, expenses and taxes associated with carrying out the Closing
(including, without limitation, notary fees, registration fees or stamp
taxes) shall be the responsibility of the Buyer.
9. WARRANTIES OF THE SELLERS
9.1 CDMNV hereby represents and exclusively guaranties, in reference to the
Closing Date:
(a) the existence of the Shareholdings and the Saico Shareholdings and the
freedom of said shareholdings from liens or third-party claims;
(b) the valid title-deed and non-existence of grounds for eviction
concerning the Shareholdings and Saico Shareholdings;
(c) the existence of the shareholdings held directly or indirectly by the
Companies in the Principal Subsidiaries, the absence of any liens or
third-party claims in respect thereof, the valid title-deed and the
non-existence of grounds for eviction concerning the shareholdings
themselves; and
(d) to the best of its knowledge, the accuracy of the information
contained in Appendix 11A ("Trademarks") and the absence of disputes
(written or claimed) by third parties regarding the use of the
Trademarks by the Companies and Subsidiaries. No guaranty, however, is
provided by CDMNV with respect to the validity of the Trademarks or to
the possible violation of third-party intellectual property rights
which may result from their use.
9.2 CDMI hereby represents and exclusively guaranties with reference to the
Closing Date:
29
(a) the existence of the transferred business activities; and
(b) the non-existence of grounds for eviction with reference to the
business activities themselves, it being understood that the
potential declaration of invalidity of the trademarks included in
the San Xxxxxx Business shall be considered to be grounds for
eviction and is not the subject of a guarantee pursuant to this
Agreement;
9.3 The preceding representations and warranties do not cover de facto or de
jure events or circumstances, which were known to the Buyer prior to the
presentation date of the Binding Offer or which the Buyer could have
known, using ordinary diligence, based on the documents reviewed and
interviews or visits made to sites during the due diligence process.
9.4 CDMNV and CDMI shall, each according to its competence, indemnify and hold
harmless the Buyer from any damages (the "Indemnifiable Damages"), which
the Buyer incurs as an immediate and direct consequence of the violation
of any of CDMNV's representations and warranties pursuant to Art. 9.1 or
of CDMI's representations and warranties pursuant to Art. 9.2 or of any
warranties mandated by law, within the limits and under the conditions set
forth in subsequent provisions of this Art. 9.
9.5 The warranties, as provided hereinabove by CDMNV and CDMI, shall remain
valid and effective with respect to the formulated claims, under the terms
and conditions provided for in Art. 9.7 and the subsequent articles of
this Agreement until the end of the sixth month in which the Closing Date
occurs. When said term has expired, the Buyer shall have no claim against
the Sellers with respect to any violations of the representations and
warranties (without prejudice to the assessment of the actual damages
payable in respect of the violations claimed within the aforesaid term).
30
9.6 In assessing and settling damages actually owed by CDMNV or CDMI in regard
to the confirmed violation of representations and warranties, the
following criteria shall be applied:
(a) damages of an individual amount less than (euro) 50,000 (fifty
thousand euros) shall not be deemed to be Indemnifiable Damages
pursuant to this Agreement;
(b) Indemnifiable Damages shall de determined according to the amount of
damage sustained by the Buyer, net of: (i) any extraordinary income
with respect to its Balance Sheet at 31 December 2003, accruing to
the Companies or Subsidiaries in connection with events or actions
preceding the Closing Date; (ii) tax benefits resulting from a loss
stemming from damages; (iii) amounts for any eventual damages, which
the Buyer, the Company or the Subsidiary is entitled to collect from
an insurance company or a third party in regard to a damaging event;
and (iv) amounts of general and specific provisions existing in the
Balance Sheet at 31 December 2003 of the Company or Subsidiary in
question with respect to the damages reported;
(c) the Buyer shall not be entitled to damages until the sum of the
Indemnifiable Damages, determined pursuant to Art. 9.6, has reached
an amount equal to 5% of the Shareholdings Value, in the event of a
breach of the representations and warranties set forth in Art. 9.1,
or 5% of the San Xxxxxx Xxxxx, in the event of a breach of the
representations and warranties set forth in Art. 9.2; and, having
reached said threshold, which constitutes an absolute deductible,
with CDMNV or, if applicable, CDMI, being responsible for only those
Indemnifiable Damages exceeding said threshold;
31
(d) CDMNV and CDMI shall be responsible, respectively, for Indemnifiable
Damages up to a maximum amount equaling 10% of the Shareholdings
Value, in the event of a breach of the representations and
warranties set forth in Art.. 9.1, or 10% of the San Xxxxxx Xxxxx,
in the event of a breach of the representations and warranties set
forth in Art. 9.2, with the exception of total or partial eviction
of the Shareholdings, the Saico Shareholdings or assets belonging to
the San Xxxxxx Business, in regard to which the Indemnifiable
Damages shall be equal to the value attributed to assets figuring as
the subject of the eviction and, therefore, the maximum limit for
the liability of the Sellers shall be equal to the full
Shareholdings Value, the Saico Price and the full San Xxxxxx Xxxxx
respectively; and
(e) the damages shall be owed by CDMNV or, if applicable, CDMI, only
when the Indemnifiable Damages have been definitively ascertained,
following acknowledgment by CDMNV or CDMI (or by the Company or the
Subsidiary with the written consent of CDMNV or CDMI) or by final
judicial decree.
9.7 The Buyer shall be obliged, upon penalty of expiration, to report to CDMNV
or, as applicable, to CDMI, no later than 30 days from the date it becomes
aware (and knowledge on the part of any Company or Subsidiary shall be
considered knowledge on the part of the Buyer for these purposes) of any
circumstance that may constitute a violation of the representations and
warranties made in Articles 9.1 and 9.2 or of any other warranties
mandated by law. The report must contain a clear indication of the alleged
violation and of the potential consequences of said violation and must be
accompanied by all documentation appropriate to permit full understanding
of said violation by the relevant Seller.
9.8 The relevant Seller, upon receiving the report from the Buyer, and at any
subsequent time, shall be entitled to assume direction of the reported
issue, assuming appropriate initiatives, including those of a legal
nature, needed to
32
contest or mitigate the violation and/or damages resulting therefrom. It
being understood that, in said case, the Buyer -- under penalty of
forfeiture of the right to damages from the relevant Seller with respect
to such violation -- must fully collaborate with the Seller for said
purpose, signing the documents that may be requested by the relevant
Seller, and granting the Seller full access to all of the documents and
information that the Seller will require for said purpose. It is
understood that, in the case of actions brought or proceedings initiated
by third parties, the Buyer may provide for the defense an additional
counsel of its own choosing. In the event the relevant Seller has taken on
the management of such actions or proceedings, it shall not enter into
agreements with third parties or abandon suit without the Buyer's consent
(which consent shall not be unreasonably withheld). It is understood that,
should the Buyer withhold its consent, including for cause, the Sellers
shall not be liable to pay the amounts due by the Companies or the
Subsidiaries, upon conclusion of the relevant proceedings, in excess of
the amounts that would have been due if Buyer's consent to such an
agreement had not been withheld.
9.9 If the relevant Seller decides not to exercise this right, the Buyer must
do everything necessary, with the greatest diligence, to contest the
violation and/or mitigate the resulting damages, it being understood that,
under penalty of forfeiture of the right to damages from the relevant
Seller in no event shall the Buyer be able to abandon claims or
objections, to settle legal disputes and not acquiesce to third-party
requests or acknowledge its own responsibility without the prior written
consent of the relevant Seller.
9.10 The Buyer acknowledges and accepts that the representations and warranties
set forth in preceding Articles 9.1 and 9.2 are the sole warranties
provided by CDMNV and CDMI, respectively, in regard to the sale figuring
as the subject of this Agreement. No other guarantee of any other kind
shall be provided by the Sellers in regard to the Shareholdings, the Saico
Shareholdings and the San Xxxxxx Business, respectively, and, if provided
for by law, shall be waived expressly by
33
the Buyer upon signing this Agreement, with sole exception for any
warranties mandated by law. The Buyer hereby represents that it has
performed assessments which it deems necessary or satisfactory, either as
part of the due diligence process or otherwise, and that it accepts the
Shareholdings, Saico Shareholdings and San Xxxxxx Business in their de
facto and de jure state on the Closing Date, and hereby confirms that it
considered the absence of further warranties in regard to the aforesaid
when formulating its offer price with respect to each of these assets.
9.11 The representations and warranties set forth in Arts. 9.1 and 9.2, and any
warranties mandated by law, are exclusive and are substitutes for every
other right or remedy due to the Buyer pursuant to law; the Buyer,
therefore, expressly waives the right to initiate any eventual action or
claim other than a request for damages pursuant to, and within the limits
of, the provisions of preceding Arts. 9.1 and 9.2.
10. BUYER'S OBLIGATIONS
10.1 By signing this Agreement, the Buyer agrees to the following with respect
to the San Xxxxxx Business:
(a) to carry on the business of the San Xxxxxx Business for at least two
years from the date the Business Transfer Agreement is signed, as
provided in the Industrial Plan; and
(b) to guarantee to the employees who will be transferred upon signing of
the Business Transfer Agreement the same contractual conditions they
had at the time of the transfer, and to maintain the employment of all
of the employees transferred (unless any individual employee decides
voluntarily to resign) for a period not less than two years from the
signing of the Business Transfer Agreement. During this period, the
Buyer shall not make use of the mobility procedures nor of collective
dismissal procedures. This obligation shall not
34
extend to dismissal of individuals for just cause or justified
subjective reasons (including the refusal of employees located in the
San Polo offices or in other offices other than the San Xxxxxx
facility to accept transfer to another office). These obligations are
assumed in addition pursuant to Art. 1411 of the Civil Code for
individual employees.
10.2 Moreover, the Buyer agrees to cooperate as necessary to assist the Cirio
Extraordinary Administration in meeting its accounting and tax
responsibilities, and at the request of Commissioners, to maintain records
of the procedure, without any burden being placed on CDMI, for a period of
two years from the signing of the Business Transfer Agreement.
10.3 If the Buyer should violate any of the obligations to continue business,
to fulfill the investment obligations as set forth in the Industrial Plan
or to maintain employment levels as set forth in Art. 10.1, the Buyer
shall be subject to:
(a) a fine equal to 40% of the San Xxxxxx Xxxxx in the event of a
violation of the obligation set forth in Art. 10.1 (a); and
(b) a fine equal to (euro) 50,000 for each employee dismissed or
transferred in violation of the obligation set forth in Art. 10.1
(b), without any prejudice to any rights of the employee with
respect to the Buyer, including the right to have any dismissal in
violation of the aforesaid obligation declared non-effectual or
illegitimate.
The above fines shall be owed to CDMI, with the exception of major damages
and without prejudice to the rights and remedies due to CDMI under law,
including the right to terminate the San Xxxxxx Business transfer contract
on the grounds of nonperformance by the Buyer.
10.4 In regard to the Shareholdings and the Saico Shareholdings, the Buyer also
agrees:
35
(a) to indemnify and hold harmless CDMNV and each company of the Cirio
Group from any damages arising from the revoking of any of the
waivers to receivables or grounds for subrogation in regard to the
Cirio Group, effected by any of the Companies and Subsidiaries
pursuant to this Agreement following the Company's declaration of
insolvency or that of the Subsidiary in question; and
(b) to ensure that all the companies of the Cirio Group, which have
provided guaranties, in any form, regarding the obligations of the
Companies or Subsidiaries, are free from said obligations within
three months of the Closing Date. An indicative list of these
obligations is contained in Appendix 16 of this Agreement.
10.5 The failure of the Buyer to meet the obligations pursuant to preceding
Articles 10.1 and 10.4 and the payment of the fines set forth in preceding
Art. 10.3 or of the damages set forth in Art. 10.4 are guarantied by the
Bank Guarantee.
11. NOTICES
11.1 Any communication or notification made with respect to this Agreement must
be in writing via registered mail, possibly preceded by a telegram or
telex or fax, and shall take effect from the date the registered letter is
sent.
11.2 Communications or notices must be sent to the following addresses:
if to the Buyer:
Fresh Del Monte Produce N.V.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX, 00000
X.X.X.
Fax no. 000 000 000 0000
To the attention of: General Counsel
with copy to:
36
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Fax no.: x00 00 000 00 000
Attn.: Xxxxxxxx Xxxxxxxxxxx Sforzolini
if to CDMI and/or CDMNV:
Amministrazione Straordinaria Cirio [Cirio Special Administration]
Xxx Xxxxxxxxxx, 00
Xxxx, Xxxxx
Attn: Commissari Straordinari [Special Administrators]
Fax no. x00 00 00 000 000
with copy to:
Xxxxxxxx e Associati
Fax no. x00 00 0000 0000
Attn: Xxxxxxx Xxxxxxxx
11.3 It is expressly understood that notices sent to the Sellers at the address
above shall be considered delivered only upon actual delivery to that
address. Any changes in these addresses shall be enforceable only if
communicated in writing by the Party concerned.
12. MISCELLANEOUS PROVISIONS
12.1 This Agreement may be amended only by a written document signed by all the
Parties.
12.2 This Agreement is binding on and accrues to the benefit of the Parties and
their respective successors for any reason or of any kind, who shall be
bound by the entire contents of this Agreement.
12.3 In the event that one or more of the clauses in this Agreement is declared
null, this defect shall not affect the validity of the remaining clauses,
nor of the Agreement in its entirety.
37
12.4 This Agreement with its appendices shall constitute the entire agreement
made between the Parties and shall replace any prior understanding,
agreement or accord, whether oral or written, between them.
12.5 Any failure by any Party, even if repeated, to take action with respect to
noncompliance or delays in compliance by another Party shall not be
interpreted as a tacit abrogation of the relevant provisions nor as a
waiver of its rights by the non-defaulting Party.
12.6 The titles of the separate articles of this Agreement were inserted for
reference purposes only and have no interpretive value with respect
thereto.
13. GOVERNING LAW AND JURISDICTION
13.1 This Agreement and all the contracts contemplated hereby or arising
herefrom shall be governed by Italian law.
13.2 Any dispute as to the validity, interpretation or execution of this
Agreement and all the contracts contemplated hereby or arising herefrom,
including any executive contracts, shall be subject to the exclusive
jurisdiction of the Court of Rome.
* * * * *
If you agree with the foregoing, please confirm your acceptance of the same by
delivering this letter to us duly initialed on each page.
Very truly yours,
FRESH DEL MONTE PRODUCE N.V.
-----------
Mohammad Abu-Ghazaleh
Chairman and Chief Executive Officer
38
ATTACHMENTS
1. Signed copy of the set of rules governing the process
2. Buyer's binding offer
3. Foods Financial Statements
4. South Africa Financial Statements
5. Saico Financial Statements
6. San Xxxxxx Business Transfer Agreement
7. List of Subsidiaries
8. Secured Financial Debt as of April 30, 2004
9. Intragroup Debt as of April 30, 2004
10. Bank Guarantee
11A. Trademarks
11B. NV Trademarks
12. Industrial Plan
13. Description of San Xxxxxx Business
14. Release of written-down claims
15. Waiver of rights of subrogation or recourse
16. List of guarantees to be cancelled
17. Undertakings of the members of the Companies' board of directors
39
