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EXHIBIT 4.4
A.Prot. 2000/149
NOTARIAL DEED
SALE AND TRANSFER AGREEMENT
(VINNOLIT MONOMER GMBH & CO. KG UND
VINNOLIT MONOMER GESCHAEFTSFUEHRUNGS GMBH)
Negotiated at Basel/Switzerland this 19th (nineteenth) day of May 2000 (two
thousand).
Before me, the undersigned Notary Public
XXXXXXX XXXXX
at Basel/Switzerland appeared today:
1. Xx. Xxxxxxx Xxxxxxxxx, born September 17, 1970, attorney-at-law, German
citizen, with business address at D-60311 Xxxxxxxxx/Xxxx, Xxxxxxxxxxxxxxx
00-00, and private domicile at D-61440 Xxxxxxxxx, Xxxxxxxxxxxxxxxx 00,
identified by his German Personalausweis,
acting not in her own name, but according to her declarations in the name
and on behalf of
Vinnolit GmbH & Co. KG, a German limited partnership with head office at
D-85737 Ismaning, Xxxx-Zeiss-Ring 25, to be registered with the
Commercial Register at the Local Court of Muenchen under Section A,
presenting a written power of attorney dated May 17, 2000, a true copy of
which is attached,
- hereinafter referred to as "Buyer" -
2. Xx. Xxxxx Xxxxxxx Xxxxxxxxx, born December 29, 1944, attorney-at-law,
German citizen, with private domicile at D-82327 Tutzing,
Fischerbuchetstrasse 9, identified by his German Personalausweis,
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acting not in his own name, but according to his declarations in the name
and on behalf of
a) Vinnolit Kunststoff GmbH, a German limited liability company with
head office at D-85737 Ismaning, Xxxx-Zeiss-Ring 25, registered
with the Commercial Register at the Local Court of Muenchen under
No. HRB 102851, presenting the attached written power of attorney
dated May 18, 2000,
- hereinafter referred to as "Seller" -
b) Xxxxxx Chemie GmbH, a German limited liability company with head
office at D-81737 Xxxxxxxx, Xxxxx-Xxxxxx-Xxxxx 0, registered with
the Commercial Register at the Local Court of Munchen under No.
HRB 3499, presenting the attached written power of attorney dated
May 18, 2000,
- hereinafter referred to as "Wacker" -
3. Xx. Xxxx Xxxxxxxxx, born January 7, 1965, attorney-at-law, German
citizen, with business address at D-65926 Frankfurt am Main, Corporate
Center, Building C 660, and private domicile at D-60318 Frankfurt am
Main, Xxxxxxxxxxxxxx 00, identified by his German Personalausweis,
acting not in his own name, but according to his declarations in the name
and on behalf of
Celanese AG, a German stock corporation with head office at D-65926
Frankfurt am Main, Corporate Center, Building F 821, registered with the
Commercial Register at the Local Court of Frankfurt am Main under No. HRB
42285 presenting the attached written power of attorney dated May 10,
2000, and an extract from the Commercial Register dated April 19, 2000, a
true copy of which is attached,
- hereinafter referred to as "Celanese" -
The acting notary asked the persons appeared prior to the notarization whether
he or any of his partners acts or acted in the matter to be recorded for any
of the parties of this deed outside his or, as the case may be, their notarial
function (Section 3 para. 1 No. 7 German Recording Act (Beurkundungsgesetz)).
The answer was negative.
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The persons appeared requested this Deed including its Exhibits and Schedules
to be recorded in the English language. The acting Notary Public who is in
sufficient command of the English language ascertained that the persons
appeared are also in command of the English language. After having been
instructed by the acting Notary, the persons appeared waived the right to
obtain the assistance of a sworn interpreter and to obtain a certified
translation of this Deed including the Exhibits and Schedules hereto.
The persons appeared asked for the Notarization of the following:
(continued on next page)
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SALE AND ASSIGNMENT AGREEMENT
entered into between
Vinnolit Kunststoff GmbH
with its seat in Ismaning
(hereinafter referred to as the "SELLER")
and
Vinnolit GmbH & Co. KG
with its seat in Ismaning
(hereinafter referred to as the "BUYER")
(the Seller and the Buyer hereinafter also referred to singly as
the "PARTY" and collectively as the "PARTIES")
as well as
Xxxxxx Chemie GmbH
with its seat in Munich
(hereinafter referred to as "WACKER")
and
Celanese AG
with its seat in Frankfurt am Main
(hereinafter referred to as "CELANESE")
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TABLE OF CONTENT PAGE
PREAMBLE................................................................................................6
SECTION 1 DEFINITIONS...................................................................................7
SECTION 2 OBJECT OF SALE AND ASSIGNMENT AND SUBSIDARIES................................................11
SECTION 3 SALE AND ASSIGNMENT OF SHARES................................................................13
SECTION 4 CONSIDERATION................................................................................14
SECTION 5 FINANCIAL STATEMENTS, ANNUAL ACCOUNTS........................................................21
SECTION 6 CLOSING......................................................................................23
SECTION 7 REPRESENTATIONS AND WARRANTIES OF THE SELLER.................................................25
SECTION 8 REPRESENTATIONS AND WARRANTIES OF THE BUYER..................................................32
SECTION 9 REMEDIES.....................................................................................33
SECTION 10 INDEMNIFICATION.............................................................................36
SECTION 11 LIMITATION OF LIABILITIES/GUARANTORS........................................................38
SECTION 12 SURVIVAL OF CLAIMS AND REMEDIES.............................................................38
SECTION 13 CONTINUING AGREEMENTS, CUSTOMER AND SUPPLIER RELATIONSHIPS, INSURANCE, CHANGE OF NAME.......38
SECTION 14 COVENANT NOT TO COMPETE.....................................................................38
SECTION 15 FURTHER COVENANTS OF THE BUYER..............................................................38
SECTION 16 CARTEL CLEARANCE, OTHER COVENANTS OF THE PARTIES............................................38
SECTION 17 GENERAL PROVISIONS..........................................................................38
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PREAMBLE
WHEREAS, the Seller is engaged, through the Companies, in (i) the production
and distribution of Monomer Products, (ii) the production of Polyvinylchloride
(PVC), consisting of homopolymer resins of Vinylchloride Monomer (VCM) or
copolymer resins of Vinylchloride Monomer and Comonomers
(Vinylacetate-Monomer, Hydroxypropyl-Acrylate, Butyl-Acrylate,
Allyl-Methacrylate, Maleinic-Acid), produced by emulsion polymerization
(continuous and batch), suspension polymerization or microsuspension
polymerization processes, (iii) in the distribution of PVC for paste making
and thermoplastic applications and (iv) in the licensing of the VCM as well as
the PVC technology (such business of the Companies, to the extent currently
conducted, the "BUSINESS");
WHEREAS, the Seller intends to sell its interests in the Companies and, thus,
to divest the Business;
WHEREAS, the Buyer, a limited partnership which has been duly established
under the laws of Germany and reported for registration in the commercial
register on 18 May 2000, but has not yet been registered, duly represented by
its general partner CM 00 Vermoegensverwaltung 058 GmbH, registered in the
commercial register of the local court in Munich under HRB 130662 (hereinafter
referred to as CM 058 GmbH), desires to acquire the Seller's interests in the
Companies;
WHEREAS, the Buyer, at the date hereof, will further enter into an agreement
regarding the acquisition of all the shares in Vintron GmbH with its seat in
Xxxxxx-Knapsack from Celanese Chemical Europe GmbH, a wholly owned subsidiary
of Celanese, in a separate transaction (the "VINTRON TRANSACTION") which shall
be consummated simultaneously;
WHEREAS, the Seller is a Joint Venture of Wacker and Celanese (through its
wholly owned subsidiary Diogenes Dreizehnte Vermoegensverwaltungs GmbH), which
have entered into the Agreement solely for the purpose of (i) granting certain
indemnification in respect of environmental liabilities as set forth in
Section 10.1 of the Agreement as well as certain covenants not to compete as
set forth in Section 14 of the Agreement, provided that they shall in no event
be, or deemed to be, jointly and severally liable for any of such obligations
["Auschluss jeglicher Gesamtschuldnerschaft"] and (ii) acting as guarantors
["Buergen unter Verzicht auf die Einrede der Vorausklage"] for the performance
of the Seller's obligations under the Agreement, provided that the obligations
of the guarantors are strictly accessory ["akzessorisch"] ,i.e. the extent of
the principal obligations
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determines the extent to which the guarantors are responsible and provided
that the guarantors shall be jointly and severally liable for such
obligations; and
WHEREAS, the Parties, Wacker and Celanese agree that the terms of the
Agreement shall comprehensively and conclusively constitute the entire
agreement of the parties in respect of the transactions contemplated by the
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements and
covenants hereinafter set forth, it is hereby agreed as follows:
SECTION 1
DEFINITIONS
For the purpose of the Agreement the terms below shall have the following
meanings:
"AGREED ACCOUNTING PRINCIPLES" THE ACCOUNTING PRINCIPLES APPLICABLE FOR
THE ANNUAL ACCOUNTS AS AGREED BETWEEN THE
PARTIES AND SET FORTH IN SCHEDULE 5.2 IN
ORDER TO DETERMINE THE CONSOLIDATED EBITDA
FOR THE TIME PERIODS ENDING ON 31 DECEMBER
2000 AND 31 DECEMBER 2001 AS REFERRED TO
IN SECTION 5.2.
"AGREEMENT" THIS SALE AND ASSIGNMENT AGREEMENT
TOGETHER WITH ALL SCHEDULES HERETO.
"ANNUAL ACCOUNTS" THE CONSOLIDATED ANNUAL ACCOUNTS OF THE
COMPANIES FOR THE BUSINESS YEARS ENDING ON
31 DECEMBER 2000 AND 31 DECEMBER 2001 TO
BE PREPARED AND AUDITED PURSUANT TO
SECTION 5.2 HERETO.
"AUDITED ANNUAL ACCOUNTS" The Annual Accounts as audited
pursuant to Section 5.2 hereto.
"BUSINESS" The business activities of the
Companies as defined in paragraph 1 of
the preamble to the extent currently
conducted.
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"BUYER'S AFFILIATES" Enterprises affiliated with the Buyer
within the meaning of Section 15
German Stock Corporation Code
["Aktiengesetz"].
"CASH PAYMENT" The part of the Purchase Price to be
paid to the Seller's account at the
Closing Date pursuant to Section 4.3
(a).
"CLOSING" The consummation of the transactions
contemplated in the Agreement.
"CLOSING DATE" The date on which the Closing occurs.
"COMONOMERS" Vinylacetate-Monomer,
Hydroxypropyl-Acrylate,
Butyl-Acrylate, Allyl-Methacrylate,
Maleinic-Acid.
"COMPANIES" Each or, if the context so requires,
any of the Company and the
Subsidiaries.
"COMPANY" Vinnolit Monomer GmbH & Co. KG as
further defined in Section 2.1 hereof.
"CONSOLIDATED AUDITED EBITDA" The consolidated EBITDA as determined
by the independent auditor pursuant to
Section 5.2 and referred to in Section
4.3 (c) (i) hereof as at the
respective dates referred to in the
Agreement.
"CONSOLIDATED FINANCIAL STATEMENTS" The consolidated financial statements
of the Seller and such of the
Subsidiaries as described in the
respective statements referred to in
Section 5.1.
"DEFERRED CONSIDERATION" A part of the consideration in the
amount of DM 40,000,000 to be paid to
the Seller, as soon as the first of
the events as defined in Section 4.1
(b) arises.
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"EBITDA" Earnings before interest, tax,
depreciation and amortisation as
calculated in accordance with the
Agreed Accounting Principles.
"EFFECTIVE DATE" 1 January 2000, 00.00 h.
"FINAL ANNUAL ACCOUNTS" The finally binding Audited Annual
Accounts as defined in Section 5.2
(c).
"FINANCIAL INTER-COMPANY DEBT" Any interest bearing liabilities, not
including any trade receivables, owed
by the Seller or the Seller's
Affiliates to the Companies or owed by
the Companies to the Seller or the
Seller's Affiliates at the Closing
Date, whether due or not.
"FINANCIAL STATEMENTS" The Individual Financial Statements
and the Consolidated Financial
Statements, collectively.
"GAAP" German generally accepted accounting
principles ["Grundsaetze
ordnungsgemaesser Buchfuehrung und
Bilanzierung"].
"GENERAL PARTNER" Vinnolit Monomer Geschaeftsfuehrungs
GmbH as further defined in Section 2.2
hereof.
"INDIVIDUAL FINANCIAL STATEMENTS" The audited or unaudited, as the case
may be, individual financial
statements of the Seller and each of
the Companies as of 31 December 1999
as referred to in Section 5.1 hereof.
"INFRASERV" InfraServ GmbH & Co. Gendorf KG having
its registered seat in Burgkirchen and
registered in the Commercial Register
at the Local Court (Amtsgericht)
Traunstein under HRA 6463, an entity
in which the Company holds a minority
interest as further defined in Section
2.4 hereof.
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"LIMITED INTEREST" The Seller's interest in the Company
as described in Section 2.1 hereof.
"MONOMER PRODUCTS" Chlorine, Caustic Soda, Hydrogen,
Ethylenedichloride, Vinylchloride,
Hydrochlorine Acid and
Tintetrachloride.
"PURCHASE PRICE" A part of the consideration as defined
in Section 4.1 (a) hereof.
"REAL PROPERTIES" The essential land and premises leased
["gemietet oder gepachtet"] by the
Company or in respect of which the
Company has hereditary building rights
["Erbbaurechte"] as defined in Section
7.17.
"RESIDUAL PURCHASE PRICE" The difference between the Purchase
Price and the Cash Payment as defined
in Section 4.3 (b).
"SELLER'S AFFILIATES" Enterprises affiliated with the Seller
within the meaning of Section 15 of
the German Stock Corporation Code
["Aktiengesetz"]
"SHARES" The Limited Interest and the Seller's
shares in the General Partner as
described in Section 2.2 hereof,
collectively.
"SUBORDINATED LOAN" A part of the Residual Purchase Price
in the amount of DM 80,000,000 as
defined in Section 4.3 (d).
"SUBSIDIARIES" The subsidiaries of the Company in
which it holds interests as further
defined in Section 2.2 and 2.3.
"VENDORS'S LOAN" A part of the Residual Purchase Price
in the amount of DM 100,000,000 as
defined in Section 4.3 (c).
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"VESTOLIT" Vestolit GmbH & Co. KG with its seat
in Marl.
"VESTOLIT BUSINESS" The business of Vestolit as currently
conducted.
"VINTRON TRANSACTION" The Acquisition of all the shares in
Vintron GmbH from Celanese Chemical
Europe GmbH by the Buyer in a separate
transaction as described in paragraph
4 of the preamble.
SECTION 2
OBJECT OF SALE AND ASSIGNMENT AND SUBSIDARIES
The object of the sale is the shareholding of the Seller as sole limited
partner ("Kommanditist") in Vinnolit Monomer GmbH & Co. KG (the "COMPANY") and
the 100 % shareholding of the Seller in Vinnolit Monomer Geschaeftsfuehrungs
GmbH being the sole general partner ("Komplementaer") of the Company (the
"GENERAL PARTNER"), such sale to include, indirectly, all shareholdings held
by the Company in its subsidiaries (the "SUBSIDIARIES") and the interest held
by the Company in XxxxxXxxx XxxX & Xx. Xxxxxxx XX.
2.1 COMPANY. The Seller and the General Partner are the sole partners of
Vinnolit Monomer GmbH & Co. KG, a limited partnership
["Kommanditgesellschaft"] which has its registered seat in Ismaning and
is registered with the trade register of the local court in Munich under
No. HRA 72198 (the "COMPANY").
(a) The fixed capital of the Company amounts to DM 300,000.
(b) The Seller is the sole limited partner ["Kommanditist"] of the
Company holding a fixed capital ["Festkapital"] in the amount of DM
300,000. The registered liability contribution ["Hafteinlage"]
amounts to DM 200,000.
(c) The General Partner is the sole general partner ["Komplementaer"] of
the Company with no fixed interest.
2.2 GENERAL PARTNER. The Seller is the sole shareholder of Vinnolit Monomer
Geschaeftsfuehrungs GmbH which has its registered seat in Ismaning and is
registered
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with the trade register of the local court in Munich under No. HRB 119021
(the "GENERAL PARTNER").
(a) The registered share capital of the General Partner amounts to DM
50,000.
(b) The Seller holds 100 % of the registered share capital consisting of
one share in the nominal amount of DM 50,000.
(c) The General Partner is the general partner of the Company and is not
engaged in any other business.
2.3 SUBSIDIARIES. The Company, directly or indirectly, as of the Closing
Date, unless otherwise provided in (a) below, will be the shareholder of
the following companies (the "SUBSIDIARIES") with the following
interests:
(a) Vinnolit Italia S.r.l., a company organised under the laws of Italy
with its seat in Milan and an authorised capital of LIT 190,000,000
("VINNOLIT ITALY") with an interest in the same amount of equal to
100 % of the total authorised share capital. The Seller and Celanese
shall procure that as of the Closing Date the shares in Vinnolit
Italy are transferred to the Company by way of a contribution
agreement, it being understood that the effectiveness of such
transfer may at the Closing Date still be subject to certain local
registration requirements;
(b) Vinnolit Benelux S.A., a company organised under the laws of Belgium
with its seat in Dendermonde and an authorised capital of BelgFr
2,500,000 ("VINNOLIT BENELUX") with an interest in the amount of
BelgFr 2,475,000 equal to 99 % of the total authorised share capital.
The outstanding interest equal to 1 % of the total authorised capital
is held by COMASO S.A. at Brussels, acting as fiduciary pursuant to
the terms and conditions of the fiduciary agreement as attached as
SCHEDULE 2.3 (b). The Seller and Celanese shall procure that as of
the Closing Date the shares in Vinnolit Benelux and the fiduciary
agreement are transferred to the Company as shareholder and trustor
by way of a contribution agreement;
(c) Vinnolit Limited, a company organised under the laws of England and
Wales with its seat in Egham, Surrey, U.K and an authorised capital
of Pound Sterling 100,000 ("VINNOLIT UK") with an interest in the
same amount equal to 100 % of the total authorised share capital;
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(d) Vinnolit France S.A.R.L., a company organised under the laws of
France with its seat in Lyon, France and an authorised capital of FF
400,000 ("VINNOLIT FRANCE") with an interest in the same amount equal
to 100 % of the total authorised share capital.
(e) Vinnolit Technologie GmbH & Co. KG, a limited partnership
["Kommanditgesellschaft"] organised under the laws of Germany with
its seat in Ismaning, registered with the trade register of the local
court in Munich under No. HRA 73718 and a fixed capital
["Festkapital"] in the amount of DM 100,000 equal to the registered
liability contribution ["Hafteinlage"] ("VINNOLIT TECHNOLOGIE");
(f) Vinnolit Technologie Geschaeftsfuehrungs GmbH, a limited liability
company organised under the laws of Germany with its seat in
Ismaning, registered with the trade register of the local court in
Munich under HRB 125891 and a registered share capital in the amount
of DM 50,000 ("VTG GmbH").
2.4 FURTHER INTEREST. The Company further will, as of the Closing Date, hold
a fixed capital interest ["Festkapital"] in the amount of DM 9,366,269 in
InfraServ GmbH & Co. Gendorf KG ("INFRASERV"), a limited partnership
["Kommanditgesellschaft"] organised under the laws of Germany with its
seat in Burgkirchen, registered with the trade register of the local
court in Traunstein under HRA 6463. The registered liability contribution
["Hafteinlage"] amounts to DM 550,000. The Company's interest in
InfraServ is equal to 11 % of the total fixed capital of InfraServ. In
deviation thereof, pursuant to the actual partnership agreement as of 30
May 1997, the obligation of the Company to pay in additional amounts of
money ["Nachschusspflicht"] amounts to 30 %.
SECTION 3
SALE AND ASSIGNMENT OF SHARES
3.1 SALE AND PURCHASE. The Seller hereby sells to the Buyer and the Buyer
purchases from the Seller his limited interest in the Company referred to
in Section 2.1 and all of his shares in the General Partner referred to
in Section 2.2 with economic effect as of 1 January 2000, 00.00 h (the
"EFFECTIVE DATE"). The sale of the limited interest shall comprise the
balance of the fixed capital account ["Festkapitalkonto"] and the balance
of the loan account ["Darlehenskonto"] of the Seller as well as the
Seller's participation in the joint capital reserve account ["gemeinsames
Ruecklagekonto"] and
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the joint loss carry forward account ["gemeinsames Verlustvortragskonto"]
of the Company (the "LIMITED INTEREST"; the Limited Interest jointly with
the shares in the General Partner the "SHARES").
3.2 PROFIT PARTICIPATION. The Buyer shall be entitled to the profits of the
Company relating to the current business year 2000, including, but not
limited to, all undistributed profits of preceding business years, if
any.
3.3 ASSIGNMENT. The Seller hereby assigns to the Buyer the Shares and the
Buyer hereby accepts such assignment, subject to the conditions precedent
set forth in Section 3.4.
3.4 CONDITIONS PRECEDENT TO ASSIGNMENT. The assignment of the Shares is
subject to the occurrence of each of the following conditions precedent:
(a) The unconditional approval, clearance or notice of non-action by the
German Federal Cartel Office and/or the European Commission under
pertinent merger control provisions, whichever is required for the
consummation of the transactions contemplated by the Agreement, has
been received by the Parties;
(b) the Buyer has paid in full to the Seller the Cash Payment in
accordance with Section 4.3 (a).
(c) the Buyer is registered with the trade register as the sole new
limited partner of the Company by way of singular succession
["Einzelrechtsnachfolge"] of the Seller.
3.5 APPROVALS. The Seller, Wacker and Celanese herewith, as a precautionary
measure, expressly give all approvals as may be required for the sale and
assignment of the Shares.
SECTION 4
CONSIDERATION
4.1 CONSIDERATION. The consideration payable by the Buyer to the Seller for
the sale and assignment of the Shares, including all rights attached to
the Shares, consists of the Purchase Price and the Deferred Consideration
as set forth below. Value-added tax payable on the Purchase Price and the
Deferred Consideration, if any, is not included in the figures set forth
below and shall in addition be paid by the Buyer.
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(a) PURCHASE PRICE. The purchase price amounts to DM 476,700,000.00
(Deutsche Xxxx four hundred seventy six million seven hundred
thousand) (the "PURCHASE PRICE").
(b) DEFERRED CONSIDERATION. The Purchase Price shall be increased by a
further amount of DM 40,000,000 (Deutsche Xxxx forty million) (the
"DEFERRED CONSIDERATION") if any of the following events arise:
(i) The Buyer, any of the Companies, or any of the Buyer's
Affiliates, directly or indirectly, (A) acquire(s) more than
50 % of the issued share capital of Vestolit GmbH & Co. KG
with its seat in Marl ("VESTOLIT"), or of any other third
party which becomes or became, as the case may be, the legal
successor in Vestolit or takes control of the business of
Vestolit, in substantially the same form as currently
conducted (the "VESTOLIT BUSINESS"), or (B) takes control of
the Vestolit Business by whatever means, or (C) merges with
Vestolit or otherwise effect a combination of its Business,
or parts of its Business, and the Vestolit Business,
including but not limited to the establishment of joint
ventures, partnerships or strategic alliances with
substantially the same economic effect; or
(ii) the Buyer, any of the Companies, Advent International plc.,
Advent International Corporation or any of the Buyer's
Affiliates, individually or jointly, achieve full repayment
of the acquisition banking debt on or before June 30, 2003
raised in the amount of DM 310,000,000 (Deutsche Xxxx three
hundred and ten million) in accordance with the term sheet
with Dresdner Bank AG as attached as SCHEDULE 4.1 (b) (ii)
to fund the transaction contemplated by the Agreement; or
(iii) the Buyer achieves to raise additional banking facilities to
pay the Deferred Consideration to the Seller, it being
understood that the raising of additional facilities will in
particular depend on the Companies achieving acceptable
results of EBITDA in future years.
The Buyer shall use all reasonable endeavours to ensure that one of
the events referred to under (i) to (iii) arises, and shall without
undue delay ["unverzueglich"] inform the Seller by written notice if
any of the events referred to under (i) to (iii) arises.
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The Buyer shall further, from time to time and/or on written request
of the Seller, keep informed the Seller in writing on its endeavours
and measures taken in this respect. The Buyer shall promptly submit
to the Seller (i) copies of any reports and other information
relating to the financial or economic situation of the Buyer and/or
the Companies as delivered to the banks of the Buyer or the
Companies, (ii) the audited consolidated and individual annual
statements of the Buyer and the Companies and (iii) monthly
management reports, substantially in the form as prepared by the
management and delivered to Xxxxxx and Celanese as at the date
hereof. On request of the Seller, twice a year, the Buyer shall
grant, and procure that the Companies grant, to the Seller or the
Seller's accountants access to their books and records or other
relevant documents for inspection or copying regardless of whether
those documents are situated at their properties or elsewhere.
4.2 INTEREST. Any and all parts of the Purchase Price, shall bear interest at
an annual rate of 6 % accrued ["nachschuessig"] compounded interest
(rolled up) ["mit Zinseszins"] from the Effective Date until actual
payment.
4.3 PAYMENT OF CONSIDERATION. The Consideration shall fall due and be payable
as follows:
(a) CASH PAYMENT. From the Purchase Price an amount of DM 296,700,000
(Deutsche Xxxx two hundred ninety six million seven hundred thousand)
(the "CASH PAYMENT"), plus accrued interest thereon, shall be paid by
the Buyer to a Seller's account (the details of which to be submitted
to the Buyer by Xxxxxx and Celanese prior to the Closing Date) by
wire transfer in immediate available funds at the Closing Date.
(b) RESIDUAL PURCHASE PRICE. The difference between the Cash Payment and
the Purchase Price in the amount of DM 180,000,000 (Deutsche Xxxx one
hundred eighty million) (the "RESIDUAL PURCHASE PRICE") shall not be
immediately payable ["Stundung"] at the Closing Date but shall be
treated as vendors' loan in the amount of DM 100,000,000 and as
subordinated loan in the amount of DM 80,000,000 as set forth under
(c) and (d) below:
(c) VENDOR'S LOAN. From the Residual Purchase Price an amount of DM
100,000,000 (Deutsche Xxxx one hundred million) (the "VENDOR'S LOAN")
shall be payable to the Seller in full on 31 December 2007 at the
latest
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or, in the occurrence of the following events, at such earlier dates
as set forth below:
(i) If the consolidated audited EBITDA of the Companies on the
basis of the Final Annual Accounts as determined pursuant to
Section 5.2 (the "CONSOLIDATED AUDITED EBITDA") for the
calendar year from 1 January 2000 to 31 December 2000
exceeds the amount of DM 75,000,000 (Deutsche Xxxx seventy
five million), an amount of DM 50,000,000 (Deutsche Xxxx
fifty million), plus any accrued interest thereon, shall be
paid to the Seller (10) ten Business Days after final and
binding determination of the Consolidated Audited EBITDA,
however not later than 30 April 2001.
(ii) If the Consolidated Audited EBITDA for the calendar year
from 1 January 2001 to 31 December 2001 exceeds an amount of
DM 100,000,000 (Deutsche Xxxx one hundred million), the
amount of DM 50,000,000, plus any accrued interest thereon,
shall be payable (10) ten Business Days after the final and
binding determination of the Consolidated Audited EBITDA,
however not later than 30 April 2002.
(iii) If the Vendor's Loan or any part thereof, has not been
repaid in full by 30 April 2002 pursuant to the provisions
set forth above, the Buyer shall use all reasonable efforts,
including but not limited to the raise of facilities by way
of refinancing, to repay promptly any outstanding balance
with regard to the Vendor's Loan, including accrued
interest.
(iv) Notwithstanding the generality of the foregoing in (i) to
(iii) above,
(A) the Vendor's Loan shall be payable in full, plus
any accrued interest, within (3) three months after
(AA) the first of the events as described in
Section 4.1. (b) (i) to (ii) arises, or
(BB) a merger of the Company with a third Party
or of any other combination of material
parts of the Business with businesses of
any third party has been effected, or
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(CC) the Buyer or any of the Companies,
directly or indirectly, acquires interests
or assets in other entities or businesses
of third parties, such acquisition having
a material effect on the Business as
conducted by the Companies or the Buyer,
or
(DD) a controlling interest of the shares, or
of the voting rights relating to such
shares, in the Buyer or in any of the
Companies, or in any other of the Buyer's
affiliates to which the Business is
transferred or who directly or indirectly
controls the Business, as the case may be,
(the "CONTROLLING INTEREST") is directly
or indirectly sold or offered to (a) third
part(y)ies in a Trade Sale or introduced
on a stock exchange by way of an Initial
Public Offering. For the purpose of this
Agreement a Trade Sale shall mean any sale
or other transfer of the Controlling
Interest, the sales price per share of
which exceeds the corresponding portion of
the Purchase Price as defined in Section
4.1 (a) of the Buyer per share,
irrespective whether such Trade Sale is
effected by the Buyer, any of the Buyer's
Affiliates, or other investment funds or
financial investors who have acquired such
shares at a price not exceeding the
Purchase Price of the Buyer. The Buyer or
the Buyer's Affiliates shall promptly
inform the Seller of any sale or transfer
of the Controlling Interest by submitting
a copy of the respective sale or transfer
agreement. The Buyer or the Buyer's
Affiliates shall be obligated to impose
their obligation under this Agreement to
any of such legal successors.
and
(B) the Vendor's Loan shall be immediately payable in
full, plus any accrued interest, if
(AA) the banks of the Buyer or the Companies
accelerate maturity of loans raised in
connection with the financing of this
transaction and call for early repayment
under the respective loan agreements, or
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(BB) bankruptcy or judicial composition
proceedings or any other insolvency
proceedings concerning the assets of the
Buyer or the Companies have been applied
for.
(C) Should the Vendor's Loan (including accrued
interest) not have been paid in full on or prior to
31 December 2007, the Buyer shall procure that, on
request of the Seller, Global Private Equity Fund
III and the other funds (the "FUNDS") being
shareholders of CM 00 Vermoegensverwaltungs 057 GmbH
("HOLDCO") shall assign and transfer interests in
HoldCo to the Seller or any other third party as
named by Xxxxxx and Celanese, in such value which
is equal to the outstanding balance in accordance
with the calculation scheme as attached as SCHEDULE
4.3 (c) (1) and as tax efficient as possible. The
Buyer shall procure that, prior to the Closing
Date, the Funds deliver confirmation materially in
the form of SCHEDULE 4.3 (C) (2), acknowledging
compliance with any such request of the Seller by
notarial deed.
(D) The Buyer and the Companies shall use their
reasonable efforts to achieve the targets set forth
under (i) and (ii) above.
(d) SUBORDINATED LOAN. The difference between the Residual Purchase Price
and the Vendors' Loan in the amount of DM 80,000,000 (Deutsche Xxxx
eighty million) (the "SUBORDINATED LOAN") and the interest thereon
shall be payable to the Seller in full on 31 December 2007 at the
latest or at such earlier date as set forth below:
(i) The Subordinated Loan shall be payable in full, including
any accrued interest thereon, within (3) three months after
a controlling interest of the shares, or of the voting
rights relating to such shares, in the Buyer or in any of
the Companies or in any other of the Buyer's affiliates to
which the Business is transferred, as the case may be, is
directly or indirectly sold or offered to (a) third
party(ies) in a trade sale or introduced on a stock exchange
by way of an Initial Public Offering.
(ii) The Subordinated Loan shall be immediately payable in full,
including any accrued interest thereon, if
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(A) the banks of Buyer or the companies accelerate
maturity of loans raised in connection with the
financing of this transaction and call for early
repayment under the respective loan agreements, or
(B) bankruptcy or judicial composition proceedings or
any other insolvency proceedings concerning the
assets of the Buyer or any of the Companies have
been applied for, or
(C) in the event of a dissolution and subsequent
liquidation of the Buyer or the Company, or
(D) the Buyer or any of the Companies achieving the
raise of facilities by way of refinancing which are
sufficient to repay the Subordinated Loan, provided
that the necessary approval of the banks financing
the acquisition of the Companies can be obtained,
if such approval is required under the respective
loan agreements.
For the avoidance of doubt, it is clarified that the
Subordinated Loan shall have the rank as provided for in the
Shareholders' Agreement as attached as SCHEDULE 4.3. (d).
(e) DEFERRED CONSIDERATION. The Deferred Consideration shall be payable
(3) three months after the first of the events referred to in Section
4.1 (b) has occurred.
4.4 PAYMENT OF FINANCIAL INTER-COMPANY DEBTS. The Buyer shall procure that
the Companies will pay back in full the financial interest bearing
liabilities, not including any trade receivables, owed by the Companies
to the Seller and/or the Seller's Affiliates as per the Closing Date, if
any, within (5) five business days, regardless whether due or not. On the
other side, the Seller shall, and shall procure that the Seller's
Affiliates will, pay back the financial interest bearing liabilities, not
including any trade receivables, owed by them to any of the Companies as
per the Closing Date, if any, within (5) five business days, regardless
whether due or not (the "FINANCIAL INTER-COMPANY DEBTS").
4.5 SECURITY FOR PURCHASE PRICE. The Buyer has delivered to the Seller a
letter, a copy of which is attached as SCHEDULE 4.5, from the Funds to
the Seller confirming that the Buyer will be capitalised, upon Closing,
with an aggregate equity investment
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(including equity surrogates) of at least DM 170,000,000 (Deutsche Xxxx
one hundred seventy million) to be used by the Buyer to purchase the
Shares.
4.6 SET OFF AND RIGHT OF RETENTION. Any set off or retention rights by the
Buyer against the Seller with regard to any and all parts of the
Consideration which have become due and payable pursuant to Section 4.1
through 4.5 are herewith expressly excluded and waived unless claims by
the Buyer are acknowledged by the Seller or have been finally determined
["rechtskraeftig entschieden"] by a court under Section 17.9. The Seller
may set off any and all outstanding parts of the Purchase Price, if due
and payable, against any claims of the Buyer under the Agreement.
4.7 PAYMENT OF INTEREST. Any accrued interest shall fall due with the
corresponding principal debt ["Hauptschuld"] and shall be forthwith
payable with the corresponding principal debts (e.g. with the Cash
Payment, the Vendor's Loan and the Subordinated Loan), unless otherwise
provided for in the Agreement.
SECTION 5
FINANCIAL STATEMENTS, ANNUAL ACCOUNTS
5.1 FINANCIAL STATEMENTS. The Seller has delivered to the Buyer complete and
accurate copies of the audited or unaudited, as the case may be,
individual financial statements of the Seller and each of the Companies
for the business year ended 31 December 1999 (the "INDIVIDUAL FINANCIAL
STATEMENTS"). The Seller has furthermore delivered to the Buyer a
complete and accurate copy of the consolidated financial statements of
the Seller and such of the Subsidiaries as described in the consolidated
financial statements for the business year ended 31 December 1999 (the
"CONSOLIDATED FINANCIAL STATEMENTS"; the Individual Financial Statements
and the Consolidated Financial Statements are collectively referred to as
the "FINANCIAL STATEMENTS"). The Financial Statements have been prepared
in accordance with the statutory provisions of the applicable law and the
applicable general accepted accounting principles and, to the extent
permissible under such statutory provisions, with German generally
accepted accounting principles ("GAAP") consistently applied and based on
the principles of balance sheet continuity ["unter Wahrung der
Bilanzierungs- und Bewertungskontinuitaet"]. The Individual Financial
Statements regarding the Subsidiaries Vinnolit Benelux and Vinnolit Italy
are attached hereto as SCHEDULE 5.1 for identification purposes only.
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5.2 ANNUAL ACCOUNTS 2000 AND 2001. With regard to the determination of the
Consolidated Audited EBITDA for the business years 2000 and 2001 the
following shall apply:
(a) The Buyer shall cause the Companies to prepare, without undue delay
after the respective balance sheet date, their consolidated annual
accounts ["konsolidierte Jahresabschluesse"] for the calendar years
ending on 31 December 2000 and 31 December 2001 in accordance with
GAAP (the "ANNUAL ACCOUNTS"). In order to determine the Consolidated
Audited EBITDA for the respective calendar years, the Annual Accounts
shall be adjusted, in a separate calculation, in accordance with the
agreed accounting principles as defined in SCHEDULE 5.2 hereto
(jointly the "AGREED ACCOUNTING PRINCIPLES").
(b) The Buyer shall cause the auditor of the Company (i) to audit without
undue delay, but not later than (3) three months after the respective
balance sheet date, the Annual Accounts, (ii) to adjust them, in a
separate calculation, within such time period to comply with the
Agreed Accounting Principles (the Annual Accounts so audited and
adjusted the "AUDITED ANNUAL ACCOUNTS") and (iii) to make available
without undue delay an authentic copy of the Audited Annual Accounts
to the Seller.
(c) Within (1) one month after receipt of the Audited Annual Accounts of
the Companies for the respective years, the Seller is entitled to
raise objections in writing that and in what respect the Audited
Annual Accounts, to the extent relevant for the determination of the
Consolidated EBITDA, do not comply with the Agreed Accounting
Principles. Any disputes between the Seller and the Buyer which
cannot be settled directly between them shall be settled, upon
request of either Party, by an independent auditor acting as expert
arbitrator ["Schiedsgutachter"]. If the Buyer and the Seller cannot
mutually agree upon such expert arbitrator within (2) two weeks after
either Party has requested its appointment, the expert arbitrator
shall be appointed by the Institute of Chartered Accountants
["Institut der Wirtschaftspruefer e.V."] in Duesseldorf. To the extent
permissible by law (Section 319 of the German Civil Code) the
findings of such expert arbitrator shall be finally binding on the
Parties; the Buyer and the Seller shall equally bear the costs of
such expert arbitrator. If no objections will be raised pursuant to
the first sentence of this sub-section (c) the Audited Annual
Accounts are the "FINAL ANNUAL ACCOUNTS" within the meaning of this
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Agreement. If objections will be raised pursuant to sentence 1 of
this sub-section, the Audited Annual Accounts as adjusted pursuant to
the settlement between the Parties or pursuant to the findings of the
expert arbitrators are the "Final Annual Accounts" within the meaning
of this Agreement.
(d) The Buyer shall procure, and cause the Companies to procure, that the
Consolidated Audited EBITDA of the Companies can be identified
separately, e.g. by maintaining the book-keeping system
["Buchungskreise"] as currently used by the Companies.
(e) The Buyer shall request the management of the Companies to ensure
that, on a timely basis, the Seller, any accounting firm appointed
for these purposes by the Seller and the expert arbitrator receive
all necessary assistance and a granted access to all relevant
documents in order to audit and examine the Annual Accounts, to the
same extent as if they were auditing annual accountants.
SECTION 6
CLOSING
6.1 TIME AND PLACE OF THE CLOSING. Subject to the terms and conditions set
forth herein, the closing of the transactions contemplated hereby (the
"CLOSING") shall take place at the offices of Hengeler Xxxxxxx Xxxxxxx
and Xxxxx, Frankfurt am Main, or at such other place as Seller and Buyer
mutually agree, as soon as practicable and, unless otherwise agreed or
waived by the Seller and the Buyer, under no circumstances later than (5)
five business days after (i) the Parties shall have obtained the
unconditional approval, clearance or notice of non-action from the German
Federal Cartel Office and/or the European Commission under pertinent
merger control provisions in respect of the consummation of the
transactions contemplated by the Agreement, (ii) Advent has obtained the
final and definitive commitment by the banks to provide the financing
required for the transactions contemplated under this Agreement, (iii)
the closing conditions of the Vintron Transaction have been satisfied or
waived (not taking into regard a closing condition according to which the
Vintron Transaction shall be closed only if the closing conditions
hereunder have been satisfied or waived), (iv) the Company and Vintron
have entered into the supply agreements regarding supply with VCM and EDC
as referred to in Section 13.2 and (v) the hive
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down of the Business from the Seller to the Company has become effective
by registration with the relevant commercial register.
6.2 ACTIONS TO BE TAKEN AT CLOSING. At the Closing, the following shall occur
by way of performance upon tender of counter-performance ["Zug-um-Zug"]:
(a) CLOSING OF VINTRON TRANSACTION. The Vintron Transaction shall be
closed by Celanese and the Buyer.
(b) CASH PAYMENT. The Buyer shall effect the Cash Payment (plus accrued
interest thereon) to the Sellers account in accordance with Section
4.5.
(c) SHAREHOLDERS' AGREEMENT. The Seller and the Buyer's shareholders
shall execute the shareholders' agreement in the form as attached
hereto as SCHEDULE 4.3 (d). As described in more detail in Schedule
4.3 (d) hereof, Xxxxxx and Celanese shall subscribe to a share in CM
00 Vermoegensverwaltungs 057 GmbH in the course of a capital increase
of this Company which shall comply with the rules governing capital
increases in kind ["Sachkapitalerhoehungen"].
(d) CONFIRMATION OF FUNDS. The Buyer shall submit letters of the Funds to
the Seller confirming that they acknowledge their obligations to
assign and transfer interests in the Buyer in the event that the
Vendor's Loan has not been paid in full on or prior to 31 December
2007 in accordance with Section 4.3 (c) and Schedule 4.3 (c) (2).
(e) HIVE DOWN; CONTRIBUTION VINNOLIT ITALY AND BENELUX. The Parties shall
inspect excerpts of the entries in the relevant commercial register
proving that the hive down of the Business from the Seller to the
Buyer has become effective and the Seller shall submit to the Buyer
the contribution agreements evidencing the contribution of Vinnolit
Italy and Vinnolit Benelux to the Company as provided in Section 2.3
(a) and (b).
(f) NOTIFICATION TO TRADE REGISTER. The Parties shall execute the
notification to the relevant trade register of the assignment of the
Limited Interest by the Seller to the Buyer by way of singular
succession ["Einzelrechtsnachfolge"] and instruct a notary public to
file the notification with the trade register without delay.
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(g) CONFIRMATION OF CLOSING CONDITIONS. The Parties shall confirm that
all conditions to Closing have been fulfilled or waived and all
action to be taken on Closing have been taken or waived and that the
shares in the Company have been effectively transferred to the Buyer.
6.3 The Seller and the Buyer may jointly waive any closing conditions
provided for in Section 6.1 and/or any of the actions to be taken at
closing pursuant to Section 6.2 above.
SECTION 7
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller hereby represents and warrants to the Buyer by way of independent
guarantee ("Selbstaendiges Garantieversprechen") as of the date hereof and,
unless otherwise provided hereunder, as of the Closing Date, with the legal
consequences as conclusively set forth in Section 9, and subject to the terms
and conditions set forth in Section 9 and 11, as follows:
7.1 INCORPORATION AND VALID EXISTENCE OF THE SELLER. The Seller is a
limited liability company ["GmbH"] duly established and validly
existing under the laws of Germany and has all necessary corporate
power to execute and deliver this Agreement and to perform fully its
respective obligations hereunder and to consummate the transactions
contemplated hereby.
7.2 INCORPORATION AND VALID EXISTENCE OF THE COMPANIES. The Companies are
enterprises duly established and validly existing under the
applicable laws.
7.3 OWNERSHIP OF SHARES. The statements contained in Sections 2 are
correct. All contributions to the registered share capital of the
Company and to the shares held by the Company in the Subsidiaries and
in InfraServ have been fully paid in. No repayment of capital
contributions has been effected, neither directly nor concealed.
7.4 EXISTENCE OF SHARES, THIRD PARTY RIGHTS. The Shares and the shares
held by the Company in the Subsidiaries and InfraServ are validly
existing, free and clear of any liens, rights, claims and privileges
of third parties and the Seller may freely and without any
restrictions dispose of such shares, unless otherwise set forth in
Section 2.1 or reflected in the corporate documents referred to in
Section 7.5 below. No options, pre-emptive rights or similar
undertakings have been given in respect of such shares and no
shareholders agreement or any similar undertaking regarding such
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shares has been entered into unless otherwise set forth in Section 2.
or reflected in the corporate documents referred to in Section 7.5
below.
7.5 CORPORATE STATUS OF THE COMPANIES. The corporate documents listed on
the first page of SCHEDULE 7.5 and attached for identification
purposes only in SCHEDULE 7.5 are correct and duly reflect the
corporate status of the Companies and InfraServ; no resolutions of
the shareholders of the Companies, which are required to be
registered in the commercial register or similar registers have been
passed which have not been registered. The Buyer is aware that the
Company has established or will establish a further subsidiary
(Vinnolit Central Eastern Europe) which is still in foundation.
7.6 CORPORATE AGREEMENTS. There are no corporate agreements in the sense
of Sections 291, 292 German Stock Corporation Act nor other
cooperation or joint venture agreements, nor fiscal unity, domination
or profit pooling agreements which bind any of the Companies.
7.7 PROFIT PARTICIPATION AGREEMENTS, SILENT PARTNERSHIPS. There are no
agreements regarding participation in the profit of the Companies of
any kind, in particular there are no silent partnerships, or loans
with profit participation ["partiarische Darlehen"].
7.8 FINANCIAL STATEMENTS. The Statements made under Section 5.1 are true
and correct.
7.9 NET INTEREST BEARING FINANCIAL DEBTS. The net interest bearing
financial debts of the Companies (i.e. interest bearing financial
debts minus cash of the Companies) as of the Closing Date shall not
exceed the amount of DM 50,000,000.00 (Deutsche Xxxx fifty million).
It being understood, that the Seller may cause the Companies to take
all measures to not exceed the aforementioned amount within the scope
defined in Sections 7.20 and 7.21.
7.10 ASSETS. The Companies (i) are the sole and unrestricted owners or
lessees of the assets, which were reflected in the Individual Financial
Statements, with the exception of assets which were sold, disposed of,
replaced or, in the case of receivables, collected since the respective
dates of the Individual Financial Statements, and including those
acquired in the ordinary course of business after the date thereof, and
(ii) the owned assets are unencumbered by third parties' rights, with
the exception of lessor's liens, liens or similar rights under general
business terms of banks and suppliers' liens under general sales
agreements, e.g. customary reservation of title rights
["Eigentumsvorbehalte"] and (iii) the Companies own or lease all assets
("Anlagevermoegen") and inventories ("Umlaufvermoegen") necessary for
carrying out
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the Business and, to the Best Knowledge, all such assets and
inventories are in a condition which is adequate to carry on the
Business in the ordinary course of business and in substantially the
same fashion and manner as prior to the Closing Date, except for
ordinary tear and wear and unless liability reserves were accrued;
(iv) to the Best Knowledge, the ordinary and extraordinary repair
budgets provide for adequate reserves regarding the Companies'
equipment; (v) the buildings on the Real Properties are in good
repair and condition. The foregoing provisions shall not apply with
regard to the unloading station LP 1705 at the Burghausen site, which
will be transferred to Xxxxxx at book value, in connection with a
long term management agreement ["Betriebsfuehrungsvertrag"] between
Xxxxxx and Vinnolit representing the current economic situation, with
economic effect as of 1 January 2000.
7.11 BANKRUPTCY. No bankruptcy or judicial composition proceedings
concerning the assets of the Companies have been applied for and, to
the Best Knowledge, no such circumstances exist pursuant to the
applicable Bankruptcy or Reorganization Codes of the respective
countries. No circumstances exist pursuant to applicable Bankruptcy
or Reorganization Codes or other laws which could justify the
voidance of this Agreement.
7.12 LABOUR MATTERS. To the Best Knowledge, as at the date hereof, there
are no specific union activities involving the Companies, and there
is no pending or, threatened strike, picketing, work stoppage, work
slowdown or other similar labor trouble. Prior to the hive-down of
the Business from the Seller to the Companies the employees of the
Companies were represented in the supervisory board of the Seller in
accordance with Section 52 Works Council Constitution Xxx 0000. The
Buyer is aware of the ongoing discussions in respect of the
establishment of an advisory board ["Beirat"] of the Company and the
probable voluntary representation of employees representatives in
such advisory board.
7.13 EMPLOYEES. To the Best Knowledge,
(i) all obligations, whether arising by operation of law, by
agreement or past custom, for payments and contributions
with respect to direct or indirect pension and retirement
benefits or other compensational benefits, such as
anniversary payments to the employees of the Companies, for
periods prior to the date hereof have been paid by the
Companies or adequately accrued for in the Financial
Statements in accordance with Section 6 a German Income Tax
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Act ["EStG"] and the Seller will procure that the Companies
pay or accrue for such obligations until the Closing Date;
(ii) the Companies as at the date hereof do not employ or retain
more than 1,350 employees (not taking into account
employment relationships which are limited in time or
suspended);
(iii) as at the date hereof none of the key-employees listed in
SCHEDULE 7.13 (iii) have terminated their current employment
or have threatened to terminate such employment unless
otherwise indicated in this Schedule;
(iv) There are no material informal and/or unwritten undertakings
to employees.
7.14 MATERIAL CONTRACTS. For the purpose of this Section 7.14 all
agreements which are material to the Business are hereinafter
referred to as the "MATERIAL CONTRACTS". To the Best Knowledge, there
are no Material Contracts other than the contracts presented to the
Buyer in the course of the Due Diligence referred to in Section 9.2.
The Material Contracts are in full force and effect and, to the
Best-Knowledge, are enforceable against the Parties thereto in
accordance with their terms. To the Best Knowledge, no circumstances
exist that will give any party to the Material Contracts the right to
terminate, other than ordinary termination rights, in particular not
as a result of the transactions contemplated under this Agreement. To
the Best Knowledge the Companies have performed in compliance with
all material obligations under the Material Contracts. The Company
has not received any written information regarding any action or any
material violation of any Material Contracts. For the avoidance of
doubt, it is clarified that this Section 7.14 shall not apply with
regard to loan agreements of the Companies, in particular regarding
working capital facilities.
7.15 INSURANCE. With regard to insurance policies
(a) to the Best Knowledge, each of the Companies' Assets of
insurable nature, to the extent material to the Business, is
covered by insurance policies (the "INSURANCE POLICIES")
with insurance companies of good reputation duly authorised
to carry on insurance business in the respective Companies'
country of seat against fire, accident and all other risks
ordinarily insured against as is customary in industry. The
Insurance Policies are in full force and effect until 31
December 2000. The coverage limits of the Insurance Policies
are sufficient based on the Companies' assets, properties
and business.
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(b) to the Best Knowledge, the Companies have satisfied in full
all of their material obligations under the Insurance
Policies, and are not in material default under any of them
nor does any condition exist with respect to any of the
Insurance Policies that, with notice or lapse of time or
both, would constitute any of such default of the Companies
thereunder;
(c) there are no claims made by the Companies or any person on
its behalf under the Insurance Policies, exceeding
individually or in the aggregate DM 100,000 (Deutsche Xxxx
one hundred thousand), which are outstanding, except as
provided in SCHEDULE 7.15 (c) (1). None of such claims
listed in Schedule 7.15 (c) (1) has been denied. To the Best
Knowledge, no event has arisen which might give rise to any
material claim under any of the Insurance Policies.
7.16 INTELLECTUAL PROPERTY RIGHTS. With regard to intellectual property
rights the Seller represents and warrants in the form of an
independent guarantee that
(a) the Companies (i) are the exclusive licensees of the PVC
patents until expiration of such patents and owners of the
VCM patents as set forth in SCHEDULE 7.16, or (ii) will be
owners of the intellectual property rights with respect to
certain EDC-VC-technology at the transfer date as defined in
the technology license and transfer agreement between Xxxxxx
and the Company dated 19/23 December 1997 as attached hereto
as SCHEDULE 7.16 (the "INTELLECTUAL PROPERTY RIGHTS");
(b) to the Best Knowledge the Companies do not require any
intellectual property rights other than the Intellectual
Property Rights in order to conduct the Business as
currently conducted;
(c) to the Best Knowledge, neither the operation of the Business
nor its products infringe any patents or other intellectual
property rights of any third party;
(d) no claim has been brought against the Companies alleging an
infringement of intellectual property rights as at the date
hereof and to the Best Knowledge no third party has
threatened to bring any action regarding any such alleged
infringement.
7.17 REAL PROPERTIES. The real properties as set forth under SCHEDULE 7.17
(the "REAL PROPERTIES") (the copy of the rental agreement
Vinnolit/DBV is attached for identification purposes only) constitute
the essential land and premises leased
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["gemietet oder gepachtet"] by the Company or in respect of which the
Company has - with regard to the PVC-related part of the site in
Gendorf and Knapsack subject to registration in the relevant
hereditary building rights land register ["Erbbaurechtsgrundbuch"] -
hereditary building rights ["Erbbaurechte"]. The Companies lease no
land or premises with annual leases of more than DM 500,000,
(Deutsche Xxxx five hundred thousand) other than the Real Properties.
The Companies do not own any real properties.
7.18 LITIGATION. Neither of the Companies is party, neither as claimant
nor defendant, to any litigation, including arbitration proceedings,
for the avoidance of doubt also with regard to product liability
claims, of which the amount in dispute exceeds DM 500,000 (Deutsche
Xxxx five hundred thousand). To the Best Knowledge, there are no
governmental investigations or enquiries or administrative
proceedings initiated or pending against the Companies in which the
amount involved exceeds DM 500,000 (Deutsche Xxxx five hundred
thousand). To the Best Knowledge, there are no such litigation,
investigations, enquiries or administrative proceedings threatened
against any of the Companies.
7.19 COMPLIANCE WITH LAWS. The Companies are to the Best Knowledge not in
violation of any published law ["Gesetz im materiellen Sinne"],
ordinance ["Verfuegung"], regulation ["Verordnung"], or any other
requirement of any court or arbitrator, being material for the
Business.
7.20 CONDUCT IN THE ORDINARY COURSE. Since 1 January 2000 until the date
hereof,
(a) the Business of the Companies has been conducted in the
ordinary course and shall continue to be conducted in the
ordinary course until the Closing as a going concern.
(b) the Companies have not declared any dividends in respect of
the Shares and no such Dividends shall be declared until the
Closing.
7.21 ABSENCE OF MATERIAL CHANGES. Except as disclosed in SCHEDULE 7.21,
since 1 January 2000 until the date hereof,
(i) the remunerations payable to the managing directors,
officers, employees, agents or consultants have not been
increased outside the ordinary course of business;
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(ii) the Companies have not incurred any material liabilities or
entered into any other material transactions outside the
ordinary business;
(iii) there has not been any material loss or damage to, or any
material interruption in the use of any of the Companies'
material assets;
(iv) the Companies have not made any capital expenditures
[("Ausgaben zur Anschaffung von Anlagevermoegen")] which, in
the aggregate since 1 January 2000 exceed DM 40,000,000.00
(Deutsche Xxxx forty million);
(v) there has not been any material adverse change, either
individually or in the aggregate, in the Business of the
Companies;
(the events under (i) - (v) hereinafter the "MATERIAL ADVERSE
CHANGE").
From the date hereof through the Closing Date, the Seller shall (A)
cause the Companies not to enter into arrangements constituting a
Material Adverse Change within the sense of (i), (ii) or (iv) above
without the prior consent of the Buyer and (B) promptly inform the
Buyer if any of such Material Adverse Changes within the sense of
(iii) or (v) above occurs.
The Seller and the Buyer shall be entitled to rescind this Agreement
if a material adverse change occurring from the date hereof through
the Closing Date, without the consent of the Buyer, results in
damage, liabilities or loss of the Companies, exceeding DM 25,000,000
(Deutsche Xxxx twenty five million), unless covered by insurance
policies or by claims of the Companies against (a) third party(ies).
7.22 FINDER'S FEES. The Companies have not incurred any liability or
brokerage or finders' fees or agents' commissions or similar payments
in connection with this Agreement.
7.23 TRADE RECEIVABLES. As of the Closing Date at least 90 % of trade
receivables shall be collectible within (6) six months after the
Closing Date without deductions, unless customary or agreed by the
Companies with the respective customer. The Seller and the Buyer
agree that in the event that the representation and warranty made
under this Section 7.23 results in a claim of the Buyer pursuant to
the terms and conditions set forth in Section 9, the Buyer shall
cause the respective Company to assign accounts receivables, to the
extent the Seller is in breach of the representation set forth in
this Section 7.23, to the Seller against payment of the nominal value
of such
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receivables to the respective Company. The Buyer shall procure that
any payments of such receivables to the respective Company after the
transfer of title shall be promptly paid to the Seller. The Buyer
shall give, without undue delay, immediate notice of such transfer of
title to the debtors ["Abtretungsanzeige"].
7.24 LIABILITIES. The Companies have no liabilities obligations within the
sense of Section 251 HGB ["Haftungsverhaeltnisse"] any other security
arrangements (eg. letters of comfort ["Patronatserklaerungen"]) for
liabilities of third parties (other than the Companies), except as
reflected or reserved against in the Financial Statements or as
stated under the balance sheet of the Financial Statements.
7.25 BEST OF KNOWLEDGE. If a representation and warranty under this
Agreement is made to the best of knowledge (the "BEST KNOWLEDGE"),
such Best Knowledge shall be present if the managing directors of
Xxxxxx, Celanese, Celanese Chemicals Europe GmbH and/or the Company
should have obtained knowledge about the underlying facts and
circumstances giving rise to a breach of the representation or
guarantee applying the standard of care of a prudent businessman
pursuant to Section 43 German Limited Liability Companies Act
["GmbHG"], provided however, that such representation and warranty
shall not imply an obligation of such managing directors to make any
special inquiry or investigation merely for reason of the
transactions contemplated by this Agreement.
SECTION 8
REPRESENTATIONS AND WARRANTIES OF THE BUYER
8.1 INCORPORATION, CORPORATE POWER. The Buyer represents and warrants to
the Seller by way of independent guarantee ["selbstaendiges
Garantieversprechen"] that as of the date hereof and as of the
Closing Date the Buyer is a limited partnership duly established
under the laws of Germany, having all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Agreement and to consummate the transactions contemplated hereby, and
CM 058 GmbH as its general partner is a company duly incorporated and
registered under the laws of Germany as a limited liability company
["GmbH"] in the commercial register of the local court in Munich
under HRB 130662.
8.2 CORPORATE ACTION. The Buyer represents and warrants to the Seller by
way of independent guarantee ["selbstaendiges Garantieversprechen"]
that the Buyer has taken all necessary corporate action and obtained
all necessary consents to authorise
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(i) the execution and delivery of the Agreement and (ii) the performance
of the Agreement and the consummation of the transaction contemplated
thereby.
8.3 FINANCING AND CARTEL APPROVAL. The Buyer represents and warrants to the
Seller by way of independent guarantee ["selbstaendiges
Garantieversprechen"] that as of the date hereof and as of the Closing
Date, to its best knowledge, there are no existing facts or circumstances
which
(i) might affect its obligations to pay the Residual Purchase Price or
(ii) on the side of the Buyer and the Buyer's Affiliates are of
relevance from a cartel law point of view and which might prevent
clearance by any cartel authorities referred to in Section 15. The
Seller is aware that the Buyer holds an interest in Vestolit equal
to approx. 10 % of the total share capital of the company.
SECTION 9
REMEDIES
9.1 REINSTATEMENT. Unless otherwise provided in this Agreement, if and to the
extent that representations and warranties of the Seller are incorrect
and result in a claim of the Buyer under Section 7, the Seller shall
(a) put the respective Companies in a position as if such incorrect
representations and warranties were true ["Naturalrestitution"]
or, at the Seller's option,
(b) pay the amount in cash to the Buyer or the Companies which
corresponds to the loss of the respective Companies in respect of
the matter giving rise to the claim.
If the Seller fails to make the incorrect representations and warranties
true within a period of (2) two months following receipt of written
notice of such claim pursuant to (a) above, at the Buyer's option, the
Seller shall effect payment of the amount in cash which corresponds to
the damage (within the sense of Section 249 Sentence 2, BGB unless
otherwise set forth in Section 9.4) of the respective Companies either to
the respective Companies or to the Buyer. Sections 377, 378 HGB shall not
apply. In the event of a violation of Section 7.9, the Seller shall, in
deviation from this Section 9.1, be obliged to grant a loan to the
companies, subordinated to all other debts of the Companies, equal to the
amount by which the net interest bearing
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financial debts as of the Closing Date exceed the amount of DM
50,000,000. The loan shall be repayable without interest (5) five
business days after the amount of the Companies' net interest bearing
financial debts meets, or falls short of, the amount of DM 50,000,000
after the Closing Date. The Buyer shall cause the Companies to use all
reasonable efforts to reduce the interest bearing financial debts to, or
below, the amount of DM 50,000,000 within the ordinary course of
business.
9.2 BUYER'S KNOWLEDGE. The Seller shall not be liable to the Buyer for any
claims brought by the Buyer in respect of any alleged breach of a
representation or warranty made by the Seller herein, if the Buyer or its
advisors at the date hereof had knowledge of such breach within the sense
of Section 460 of the German Civil Code ["BGB"]. The Buyer confirms that
it and its advisers have examined the legal, tax and financial
information relating to the Companies ("DUE DILIGENCE") from November
1999 through April 2000 and during a follow up due diligence period from
8 May through 12 May 2000. A copy of the Data Room List is appended
hereto as SCHEDULE 9.2. The Buyer and/or persons appointed by the Buyer
furthermore had the opportunity to have detailed discussions with members
of the management board of the Seller and the Company. The restrictions
pursuant to Section 460 BGB shall not apply with respect of
representations in Section 7.3 regarding InfraServ.
9.3 NO FURTHER REPRESENTATIONS AND WARRANTIES. The Buyer may only bring or
assert claims in respect of representations and warranties which are
expressly referred to and stated in Section 7 as being made by the Seller
and no further statements, representations, warranties or guarantees are
made, or deemed to be made, by the Seller, other than those expressly and
conclusively set forth in Section 7. In particular, the Buyer shall not
be entitled to rely on the prospective development of the Companies,
including, but not limited to, business forecasts, expected earnings,
budgetary accounting and the like (including the statements made in the
Business Plan or any other business plans or budgets of the Companies)
prepared in regard to the Companies.
9.4 DETERMINATION OF DAMAGES; CONSEQUENTIAL DAMAGES. The Seller shall not be
liable for any reputation damages. Any damage shall be calculated
strictly on the Companies' level and shall, if applicable, be determined
by applying a discount factor on a discounted cash flow basis, calculated
on the basis of the 12-months EURIBOR plus 250 basis points
["Basispunkte"], not taking into consideration circumstances and/or
considerations of the Buyer, such as (but not limited to) the multiple
which the Buyer applied when valuating the Business. For the avoidance of
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doubt, it is clarified that the Buyer shall in no event be entitled to
bring or assert any claim and the Seller shall not be held liable for any
consequential damages ["mittelbare Schaeden" bzw. "Folgeschaeden"] of the
Buyer, in particular (but not limited to) loss of profit by the Buyer.
9.5 NO ENVIRONMENTAL WARRANTIES. Any environmental pollution, i.e. pollution
or other strains of soil, groundwater, soil air ["Bodenluft"], surface
water, facilities or buildings shall solely and exclusively be subject of
the terms and conditions of the indemnification clause as set forth in
Section 10.1. The Seller shall not be liable for (i) Environmental
Pollution or (ii) other claims relating to pollution or other strains of
soil, groundwater, soil air, surface water, facilities or buildings of
whatever nature and based on whatever legal grounds, and neither of the
representations or warranties made in Section 7 are made, or deemed to be
made, with regard to environmental pollution, unless provided for
otherwise in Section 10.1.
9.6 NO DOUBLE RECOVERY. The Buyer shall not be entitled to bring or assert
any claims pursuant to Section 9 if and to the extent (i) the Financial
Statements contain a provision for the matter violating the respective
representation and warranty, if the amount of loss, damage, expense or
liability incurred is less than the amount contained in such specific
provision or (ii) recovery, payment or compensation for a specific matter
violating the respective representation and warranty has already been
obtained by the Buyer or the Companies in whatever manner and from
whatever source, so as to avoid the Buyer receiving double recovery for
such specific matter. For the avoidance of doubt it is further clarified
that Section 254 of the German Civil Code shall be applicable.
9.7 EXCLUSIVE REMEDIES. The rights of the Buyer pursuant to Section 9 shall
be the sole and exclusive remedies for the breach of any of the
provisions in Section 7, any other claim or right, whether for damages,
reduction of price ["Minderung"] or rescission ["Wandelung",
"Ruecktritt"], prior to or after the Closing, for culpa in contrahendo,
clausula rebus sic stantibus or on any other legal basis shall be - to
the extent legally permissible - excluded, except for claims based upon
wilful misconduct ["Vorsatz oder Arglist"].
9.8 RESCISSION. If the clearance by the European Commission or the German
Federal Cartel Office, as the case may be, ("CARTEL APPROVAL") has not
been granted within (6) six months after the date hereof, then the Seller
or the Buyer may rescind this Agreement. In such case, the Parties will
carry their respective costs incurred in
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connection with this Agreement individually, waiving any claims they may
have hereunder or which they may have become entitled to in the course of
negotiations leading to the signing hereof against one another to the
extent that the other Party has performed and complied in all material
respects with their obligations under the Agreement. The foregoing
sentence shall not apply with regard to the Hive-Down costs and
liabilities which shall in any event be paid to the Seller in accordance
with Section 10.3. Subject that the Cartel Approval has been granted, the
Seller shall be entitled to rescind this Agreement if any of the other
conditions precedent pursuant to Section 3.4 (b) and (c) are not
fulfilled or waived (x) within (3) three months after the date hereof, or
(y) within 10 (ten) business days after the Cartel Approval has been
granted, whichever occurs later. Any of the Seller, Xxxxxx, Celanese or
the Buyer shall be entitled to rescind this Agreement, if (i) the final
and definitive commitment by the banks to provide the financing required
for the transactions contemplated by this Agreement at conditions no more
disadvantageous than the conditions set out in Schedule 4.1 (b) (ii) is
not obtained at or prior to 5 June 2000, or (ii) the closing conditions
of the Vintron Transaction are not fulfilled or waived within (3) three
months after the date hereof, or (iii) the hive down of the Business from
the Seller to the Buyer has not become effective by registration with the
relevant commercial register within (3) three months after the date
hereof unless a delay of the registration is due to lack of co-operation
by the management of the Seller or the Company.
SECTION 10
INDEMNIFICATION
10.1 ENVIRONMENTAL. In respect of claims resulting from the pollution of soil,
soil air ("Bodenluft"), groundwater, surface water, buildings or
facilities, which causes adverse changes of the condition of the soil
resulting in dangers, substantial disadvantages or substantial nuisance
for the individual or the public ["Schaedliche Bodenveraenderung" i.S.d.
Section 2 BBodSchG] or any other dangers for the individual or the public
["Gefahren fuer den Einzelnen oder die Allgemeinheit"] pursuant to other
applicable German laws (the "ENVIRONMENTAL POLLUTION") including claims
of any Governmental authority or of InfraServ or any third party, the
Buyer or the Company, as the case may be, shall be indemnified in
accordance with the terms and conditions provided under this Section 10.1
only.
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"ENVIRONMENTAL LIABILITIES" shall be all costs (including third party
claims) incurred in connection with the investigation, elimination or
remediation of Environmental Pollution in order to comply with final
["bestandskraeftig"] or immediately enforceable ["sofort vollziehbar"]
administrative acts ["Verwaltungsakte"], (ii) final ["rechtskraeftig"]
court decisions, or (iii) agreements entered into, in order to avoid acts
and decisions as defined in (i) and (ii), with the consent of the
respective Indemnifier as defined below, with administrative authorities,
or neighbours (iv) the need to remediate an imminent danger for the
well-being or health ["Gefahr im Verzug fuer Xxxx xxxx Leben"], or, to
the extent that an omission of taking immediate action would result in a
criminal offence, groundwater ["Grundwasser"], in each case if and to the
extent that such environmental liabilities are based on the laws and
regulations applicable or formally published by the relevant authorities
as of the Closing Date. The Company or the Buyer, as the case may be,
shall be indemnified and held harmless in accordance with the provisions
following hereunder (x) by Xxxxxx, if and to the extent claims in respect
of the Environmental Liabilities result from any commercial activities
conducted by the Company on the Company's sites in Cologne-Merkenich
and/or Burghausen, or (y) by Celanese, if and to the extent claims in
respect of the Environmental Liabilities result from any commercial
activities conducted by the Company on the Company's sites in Knapsack
and/or Gendorf.
The indemnification by Celanese regarding the Gendorf site includes, but
is not limited to, claims brought by InfraServ pursuant to paragraph 6 of
the partnership agreement of InfraServ in respect of additional cash
contributions ["Nachschuesse"] as may be requested to be assumed by the
Company, as set forth in lit. (c) of this Section 10.1.
The Parties as well as Xxxxxx and Celanese hereby agree that Xxxxxx and
Celanese shall only be severally ["teilschuldnerisch"] liable in
accordance with this Section 10.1 and that (i) any joint and several
liability ["gesamtschuldnerische Haftung"] and (ii) any liability of the
Seller for any Environmental Pollution based on whatever legal grounds
shall be expressly excluded and waived by the Buyer. In all cases of
pollution or other strains of soil, groundwater, soil air, surface water,
facilities or buildings occurred prior to the Closing Date the Buyer and
the Companies shall be authorised to raise claims under, and in
accordance with, the terms and conditions of this Section 10.1 only.
Section 7.19 remains unaffected in the event a violation of Section 7.19
results in the occurrence of such pollution and/or such strains after the
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Closing Date. Subject to the terms and conditions as set forth in this
Section 10.1 either Xxxxxx or Celanese (for the purposes of this Section
10.1 also the "INDEMNIFIER") shall indemnify and hold harmless the
Company or the Buyer, as the case may be, as follows:
(a) SUBSTANCES NO LONGER IN USE. If and to the extent the
Environmental Pollution is caused by substances which on or after
the Closing Date are not used by the Company at the respective
Company's sites and unless the Environmental Pollution is caused
after the Closing Date, the respective Indemnifier shall indemnify
and hold harmless the Company for any Environmental Liabilities
which become due
(i) in the period from the Closing Date through 31 January 2010
by 100 %,
(ii) in the period from 1 February 2010 through 31 January 2011
by 80 %,
(iii) in the period from 1 February 2011 through 31 January 2012
by 60 %,
(iv) in the period from 1 February 2012 through 31 January 2013
by 40 %, and
(v) in the period from 1 February 2013 through 30 January 2014
by 20 %.
Any Environmental Liabilities which become due after 30 January
2014 shall be assumed by the Company or the Buyer, and the Company
and the Buyer shall indemnify and hold harmless Xxxxxx, Celanese
and the Seller from any such Environmental Liabilities, and any
Environmental Liabilities not to be borne by the respective
Indemnifier pursuant to the sliding scale set forth above,
asserted against them. For the purpose of allocating the
Environmental Liabilities to the respective time periods set forth
in the above sliding scale any Environmental Liabilities become
due
- in case of Environmental Liabilities in the meaning of
Section 10.1 paragraph 2 (i) and (ii) at the time when the
Buyer has notified the Seller in writing and in
substantiated form of the nature and scope of the
respective Environmental Pollution, provided, however that,
the administrative act ["Verwaltungsakt"] is issued within
(8) eight months (taking into account any possible
negotiation period under the next recital) following such
notification, and provided further that the Buyer
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and the Companies have fully complied with their
obligations pursuant to (i) (Further Conditions) (iv)
below, otherwise at the time when the administrative act
["Verwaltungsakt"] is issued.
- in case of Environmental Liabilities in the meaning of
Section 10.1 paragraph 2 (iii) at the time when the Buyer
has notified the Seller in writing and in substantiated
form of the nature and scope of the respective
Environmental Pollution, provided, however, that any
agreement between Buyer and Seller on an indemnification is
achieved within (4) four months following such
notification;
- in case of Environmental Liabilities in the meaning of
Section 10.1 paragraph 2 (iv) at the time when the Buyer
has notified the Seller in writing and in substantiated
form of the nature and scope of the respective
Environmental Pollution, provided, however, that any
remediation has been commenced within (4) four months
following such notification.
(b) SUBSTANCES STILL IN USE. If and to the extent the Environmental
Pollution is caused by substances which at the Closing Date are
still in use by the Company at the respective Company's sites, and
provided that the Environmental Pollution is caused prior to the
Closing Date, the respective Indemnifier shall indemnify and hold
harmless the Company or the Buyer for any Environmental
Liabilities which become due
(i) in the period from the day hereafter through 31 January
2002 by 90 %,
(ii) in the period from 1 February 2002 through 31 January 2003
by 80 %,
(iii) in the period from 1 February 2003 through 31 January 2004
by 70 %,
(iv) in the period from 1 February 2004 through 31 January 2005
by 60 %,
(v) in the period from 1 February 2005 through 31 January 2006
by 50 %,
(vi) in the period from 1 February 2006 through 31 January 2007
by 40 %,
(vii) in the period from 1 February 2007 through 31 January 2008
by 30 %,
(viii) in the period from 1 February 2008 through 31 January 2009
by 20 %,
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(ix) in the period from 1 February 2009 through 31 January 2010
by 10 %.
Any Environmental Liabilities which become due after 31 January
2010 shall be assumed by the Company or the Buyer, and the Company
and the Buyer shall indemnify and hold harmless Xxxxxx, Celanese
and the Seller from any such Environmental Liabilities, and any
Environmental Liabilities not to be borne by the respective
Indemnifier pursuant to the sliding scale set forth above,
asserted against them.
For the purpose of allocating the Environmental Liabilities to the
respective time periods set forth in the above sliding scale the
last sentence of Section 10. 1 (a) above shall apply.
(c) Notwithstanding the provisions under (a) and (b) in the event that
the Company, as a limited partner of InfraServ, is requested to
assume additional cash contributions ["Nachschuesse"] pursuant to
Section 6 of the Partnership Agreement ["Gesellschaftsvertrag"] of
InfraServ for Environmental Pollution not directly attributable to
the Business, which become due as from 1 February 2010, and unless
the Environmental Pollution is caused after the Closing Date,
Celanese shall indemnify and hold the Company harmless from
(i) contributions which become due in the period from the
Closing Date through 31 January 2010 by 100 %
(ii) contributions which become due in the period from 1
February 2010 through 31 January 2011 by 80 %,
(iii) contributions which become due in the period from 1
February 2011 through 31 January 2012 by 60 %,
(iv) contributions which become due in the period from 1
February 2012 through 31 January 2013 by 40 %,
(v) contributions which become due in the period from 1
February 2013 through 31 January 2014 by 20 %.
There shall be no obligation of Celanese to indemnify the Company
for, or hold the Company harmless from, any additional cash
contributions which become due after 31 January 2014, and the
Company and the Buyer shall indemnify and hold harmless Celanese
and the Seller from any such cash
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contributions, and any cash contributions not to be borne by
Celanese pursuant to the sliding scale set forth above, requested
from Celanese or the Seller.
(d) PROCEEDINGS AND RESTRICTIONS. The Company or the Buyer, as the
case may be, shall (i) inform the Indemnifier promptly (in any
case in good time prior to expiration of any appealing periods) of
the assertion of any claim or any demand, action, proceeding or
judgement related to or in connection with Environmental Pollution
and the Environmental Liabilities, (ii) take any reasonable
necessary action in the defence of such claim, action, proceeding
or judgement, unless otherwise instructed by the respective
Indemnifier, (iii) fully co-operate with the Indemnifier in the
defence or settlement in respect of the Environmental Liabilities,
(iv) grant advantage to the Indemnifier to participate in the
defence of any claim, suit action or proceeding, and (v) make no
admission to the claimant or settlements without the prior written
approval of the respective Indemnifier. In particular, the Buyer
undertakes to inform, and shall cause that the Companies undertake
to inform, the Indemnifier without undue delay of any
environmental pollution which has been notified to the relevant
Governmental authorities. Furthermore, the Buyer shall inform and
consult or cause the Companies to inform and consult with the
Indemnifier before corrective actions with regard to environmental
pollution, including investigation and transportation, storage and
treatment of polluted soil, water or buildings, are taken. If the
Buyer or the Companies are obliged to act immediately in a case of
imminent danger ["Gefahr in Verzug"] the Buyer or the Companies
shall be obliged to act with the care of a prudent business man
before informing and consulting with the Indemnifier. The
Indemnifier shall be given the opportunity to comment on,
participate in and review any reports on or relevant
investigations, orders or other measures which may with a
reasonable likelihood give rise to Environmental Liabilities, and
the Buyer shall ensure that the Indemnifier receives without undue
delay copies of all such documents.
(e) ARBITRATOR. In the case of Section 10.1 (b) the following shall
apply:
If the respective Indemnifier and the Buyer cannot agree as to
whether or to what extent the Environmental Pollution occurred
prior or after Closing Date, the Indemnifier and the Buyer shall
jointly appoint an independent environmental expert (the
"EXPERT"). If the parties cannot, within (6) six weeks after the
Indemnifier receiving notice of the Environmental Pollution by
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the Buyer, agree on the Expert, a reputable and neutral Expert
shall be determined by the president of IHK Frankfurt. The costs
of the Expert and the determination of the Expert shall be borne
by the parties to the extent the Expert's determination is
detrimental to the respective parties.
The Expert shall finally determine whether or to what extent the
Environmental Pollution occurred prior or after the Closing Date.
If the Expert
(A) determines that the Environmental Pollution occurred prior
to the Closing Date, then the sliding scale referred to
above under 10.1 (b) shall apply;
(B) determines, that the Environmental Pollution occurred on or
after the Closing Date, then the Indemnifier shall not be
liable at all;
(C) cannot determine whether the Environmental Pollution
occurred prior or after the Closing Date, then the sliding
scale referred to above under 10.1 (b) shall apply;
The Expert shall base his determination on a thorough
investigation of the pollution, its circumstances and the safety
and environmental protection standards applied in the Company. The
Buyer shall procure that the Company will provide the Expert with
all information which he deems necessary or feasible for his
determination and grant access to the Company's sites as may
be required or feasible. If the Expert states that he cannot make
a determination because the Company has not complied with its
obligations set forth above, then the Environmental Pollution
shall be deemed to have occurred after the Closing Date.
(f) DE MINIMIS THRESHOLD. Each Indemnifier shall only be liable for
indemnification under this Section if, and solely to the extent
that, the individual Environmental Liability exceeds DM 100,000
(Deutsche Xxxx one hundred thousand ) and the aggregate
Environmental Liability in each calendar year exceed DM 500,000
(Deutsche Xxxx five hundred thousand).
(g) INDEMNIFICATION CAPS. The respective Indemnifier's total liability
for any and all Environmental Liabilities relating to one single
site, as set out below, for which it may be held liable under this
Section, shall be limited as follows:
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(i) Xxxxxx'x liability to an aggregate amount of DM 90,000,000
(Deutsche Xxxx ninety million) (the "XXXXXX ENVIRONMENTAL
LIABILITY CAP");
(ii) Celanese's liability to an aggregate amount of DM
200,000,000 (Deutsche Xxxx two hundred million) (the
"CELANESE ENVIRONMENTAL LIABILITY CAP");
(h) NO DOUBLE RECOVERY. Section 9.7. shall apply mutatis mutandis,
provided that in this respect, if any insurance coverage for
Environmental Liabilities, if existing, should have been reduced
after the Closing Date, such amounts shall be taken into account
to the favour of Xxxxxx and/or Celanese, which would have been
recovered under the insurance policies in force as of the Closing
Date, unless such insurance coverage can not be obtained by an
insurance company, or only be obtained at conditions which are
substantially unfavourable compared to the current conditions.
(i) FURTHER CONDITIONS. The obligations of Xxxxxx and Celanese to
indemnify the Companies or the Buyer, as the case may be, pursuant
to this Section 10.1 do not apply to the extent the Environmental
Liabilities have, directly or indirectly, been caused or increased
by the fact that either the Companies or the Buyer or any other
person conducting the Business or other businesses at the
respective sites after the Closing Date
(i) has not complied with any applicable laws, regulations,
orders, notices including applicable standards for security
and environmental protection (provided that such
non-compliance is not caused by a non-compliance by the
Seller or the Companies prior to the Closing Date which
could not be remedied by the Companies or the Buyer within
reasonable time); or
(ii) failed to mitigate damages pursuant to Section 254 German
Civil Code; or
(iii) changes the use of the sites, in particular non-temporarily
(exceeding a period of (6) six months) partly or completely
ceases plant operations, or parts thereof, of the Business
of the Company; or
(iv) has disclosed to any governmental authority ["Behoerde"] or
any private unaffiliated third party (excluding advisors
and agents of the Company and/or the Buyer), directly or
indirectly, environmental pollution, or
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taken any other exploratory or investigative measures,
except where such disclosure or measure was required to be
made by a final ["bestandskraeftig"] or immediately
enforceable ["sofort vollziehbar"] administrative act
["Verwaltungsakt"] or unless such disclosure was required
by law.
10.2 TAX INDEMNIFICATION. With regard to any taxes and ancillary taxes
["Steuern und steuerliche Nebenleistungen"] within the sense of Section 3
Tax Act ["AO"] and including social security contributions (the "TAXES")
concerning the period prior to the Effective Date the Parties agree as
follows:
(a) TAX ASSESSMENTS. Concerning the period prior to the Effective Date
the Parties shall co-operate with regard to any Taxes. The Buyer
shall notify the Seller promptly about any order announcing a Tax
or relevant other audit that may partially or fully extend any
Taxes relating to the Companies for any taxable periods
["Veranlagungszeitraeume"] ending before the Effective Date (the
"TAXABLE PERIOD"). Copies of such order shall promptly be
forwarded to the Seller by registered mail ["Einschreiben mit
Rueckschein"]. The Seller shall be fully authorised to participate
in the negotiations with tax and other authorities concerning such
Taxes regarding the Taxable Period. The Seller is entitled to lead
such negotiations and the Buyer will keep the Seller closely
informed about any audits or investigations of the relevant
authorities in an appropriate manner. The Seller shall be
authorised to appeal at its own cost in the Companies' name
against any Tax or other assessment notice concerning the Taxable
Period.
(b) TAX INDEMNIFICATION. Upon receipt of the relevant Tax assessment
notice by either the Buyer or any of the Companies, the Seller
shall be liable for the payment of, and shall indemnify and hold
harmless the Buyer or the Companies, as the case may be, from all
Taxes assessed against the Companies by any tax authority for any
business year within the Taxable Period which exceed reserves and
provisions for Taxes for the specific business years as reflected
in the respective financial statements of the respective one of
the Companies (the "SURPLUS TAXES"). The Buyer shall vice versa
procure that the Companies shall compensate the Seller for all
reduced Taxes ["Mindersteuern"] concerning the Taxable Period
which fall short of the reserves and provisions for Taxes for the
Taxable Period as reflected in the
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respective individual statements and/or the consolidated financial
statements (the "Reduced Taxes").
(c) DISPUTES. In the event of any disagreements or disputes arising in
respect of, or in connection with, the determination of the
Surplus Taxes or the Reduced Taxes, the Independent Auditor shall
on request of either of the Parties determine the respective
Surplus Taxes and/or Reduced Taxes in a binding manner. The costs
incurred by the assignment of the Independent Auditor shall be
borne by the Parties in proportion the determination being
detrimental to the respective Party's interest.
(d) TAXES IN CONNECTION WITH HIVE-DOWN. For the avoidance of doubt, it
is understood, that the Seller shall not be liable for any Taxes
incurred in connection with the Hive-Down of the Business to the
Company, irrespective whether relating to, or incurred in, the
Taxable Periods or not and whether owed by the Seller or any of
the Companies' (see also 10.3 below).
10.3 HIVE-DOWN COSTS AND LIABILITIES. The Buyer shall indemnify and hold
harmless the Seller, Xxxxxx and/or Celanese, as the case may be, from
(a) any proceeding costs, expenses and fees, including, but not
limited to, costs of relevant courts, notary fees and all
reasonable accounting, legal or other professional costs, expenses
and fees of its advisers and any real estate transfer taxes (see
also 10.2. (d) above);
(b) any claims of creditors regarding liabilities of the Company for
which the Seller pursuant to Section 133 of the German Conversion
Code, is jointly and severally or otherwise liable.
incurred by, or suffered from, the Hive-Down of the business of the
Seller to the Company (the "HIVE-DOWN")
10.4 TAXES RELATING TO COMPANY'S PROFITS. The Seller assumes the corporate
income tax ["Koerperschaftssteuer"] with regard to the profit of the
Company for the period from 1 January 2000 through 30 May 2000 such
profits to be determined by the Company's auditor KPMG by way of an
interim tax balance sheet as of 1 June 2000, which shall be prepared only
for the aforementioned tax purpose. With regard to objections of either
of the Seller or the Buyer regarding the interim tax balance sheet,
Section 5.2 (c) shall apply mutatis mutandis.
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10.5 COMPENSATION OF LOSSES BY CELANESE. Celanese shall procure and hereby
guarantees ["Einstehen im Sinne eines selbstaendigen Schuldversprechens"]
that it fully complies with its obligation to compensate the Company for
losses incurred or incurring for the period from 1 January 1998 through
31 December 2000 pursuant to Article 7.3 of the agreement regarding the
establishment of a joint venture in respect of the production and
distribution of monomer products dated 15/17/22/23 December 1997 entered
into between Hoechst Aktiengesellschaft, Xxxxxx, Celanese Chemicals
Europe GmbH and the Seller. For the avoidance of doubt, such obligation
to compensate losses shall only relate to losses, incurred or incurring
for the period from 1 January 1998 through 31 December 2000, in the
business fields as conducted by the Company prior to the Hive-Down of the
Business (production and distribution of monomer products including the
technology and licensing business) provided that such losses, after the
Closing Date, occur within the ordinary course of such business fields
and are calculated in accordance with the methods as determined pursuant
to SCHEDULE 10.5. Such losses shall in no event take into account losses
incurred or incurring in connection with other business fields and assets
which were hived- down pursuant to the Hive-Down Agreement. The Buyer
shall procure, and cause the Companies to procure, that the losses to be
compensated by Celanese can be identified separately from any other
losses of the Companies, e.g. by maintaining the book-keeping system
["Buchungskreise"] as currently used by the Companies. Should Celanese
and the Buyer/the Companies fail to agree on the amount of losses to be
compensated by Celanese within (1) one month after the financial
statements of the business year 2000 have been audited and delivered to
Celanese, such amount shall be determined by an independent auditor as
expert arbitrator. Section 5.2 shall apply mutatis muntandis.
SECTION 11
LIMITATION OF LIABILITIES/GUARANTORS
11.1 DE MINIMIS THRESHOLDS. No claim may be brought by the Buyer in regard to
Section 7 of this Agreement unless (i) an individual claim exceeds DM
250,000 (Deutsche Xxxx two hundred fifty thousand) and (ii) the aggregate
claims exceed DM 1,000,000 (Deutsche Xxxx one million) ("De minimis
Thresholds"). In the event that the Buyer's claims exceeds the De minimis
Thresholds, only the amount of the claims actually exceeding the De
minimis Thresholds may be recovered by the Buyer ["Freibetraege"]. The
foregoing De minimis Threshold shall not apply to any claims regarding
defects of ownership of the Shares pursuant to Section 7.3 and 7.4.
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11.2 TOTAL CAP ON CLAIMS. The total liability the Seller may become subject to
under this Agreement (except for the liability under the tax
indemnification pursuant to Section 10.2) is limited to a total aggregate
amount of DM 60,000,000 (Deutsche Xxxx sixty million) (the "TOTAL SELLER
LIABILITY AMOUNT") provided that Xxxxxx and Celanese shall jointly and
severally act as Guarantors (as defined in Section 11.3 below) for such
liability and
(a) in case of Xxxxxx provided that (i) Xxxxxx shall in no event be
liable for more than DM 30,000,000 (50 %) of the Total Seller
Liability Amount and (ii) the total liability of Xxxxxx may become
subject to under this Agreement (including, but not limited to,
liabilities under the Xxxxxx Environmental Liability Cap, but
except for liabilities as Guarantor for the Seller's liability
under the tax indemnification, if any) amounts to DM 120.000.000
(Deutsche Xxxx one hundred and twenty million) (the"TOTAL XXXXXX
LIABILITY AMOUNT");
(b) in case of Celanese provided that (i) Celanese shall in no event
be liable for more than DM 30,000,000 (50 %) of the Total Seller
Liability Amount and (ii) the total liability of Celanese may
become subject to under this Agreement (including, but not limited
to, liabilities under the Celanese Environmental Liability Cap,
but except for liabilities as Guarantor for the Seller's liability
under the tax indemnification, if any) amounts to DM 200.000.000
(Deutsche Xxxx two hundred million) (the "TOTAL CELANESE LIABILITY
AMOUNT")
Any payment by the Seller or on behalf of the Seller under the Total
Seller Liability Amount shall be credited 50 % to the total Xxxxxx
Liability Amount and 50% to the Total Celanese Liability Amount. For the
purposes of this Section 11.2, the foregoing limitations shall not apply
to any defects of ownership of the Shares pursuant to Section 7.3 and
7.4.
11.3 GUARANTORS. Celanese and Xxxxxx shall act as guarantors ["Buergen unter
Verzicht der Einrede auf die Vorausklage"] (the "GUARANTORS") for the
Seller and, subject to the caps on claims as set forth in Section 11.2,
be jointly and severally liable for the performance of the obligations of
the Seller under the Agreement, provided that the obligations of the
Guarantors for the performance of the Seller's obligations are strictly
accessory ["akzessorisch"], i.e. the extent of the principal obligations
of the Seller determines the extent for which the Guarantors are
responsible.
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SECTION 12
SURVIVAL OF CLAIMS AND REMEDIES
12.1 EXPIRATION PERIOD. Except as otherwise provided for in this
Agreement, all representations and warranties made in Section 7
shall terminate and expire ["verjaehren"] (18) eighteen months
after the date hereof.
12.2 DEFECTS IN OWNERSHIP OF SHARES. Any claims brought in respect of
representations and warranties regarding defects in the ownership
of the Shares as set forth in Section 7.3 or 7.4 shall terminate
and expire (5) five years after the date hereof.
12.3 ENVIRONMENTAL INDEMNIFICATION. Any claims of the Buyer brought in
respect of the indemnification from Environmental Liabilities
against Xxxxxx or Celanese pursuant to Section 10.1 shall
terminate and expire (6) six months after the Environmental
Liabilities become due within the meaning of Section 10.1 (a) last
sentence and Section 10.1 (b) last sentence.
12.4 TAX INDEMNIFICATION. Any claims of the Buyer under Section 10.2
shall terminate and expire (6) six months after either the Buyer
or any of the Companies, as the case may be, has received the
final and binding tax assessment (including adjustment
assessments) by any taxing authority of the relevant jurisdiction
in respect of the Companies.
12.5 INTERRUPTION. Upon receipt of written notice on a specific claim
in writing by the Buyer vis-a-vis the Seller or the respective
Indemnifier, as the case may, which details the alleged basis for
such claim, the limitation period shall be interrupted
["unterbrochen"] with respect to such claims, always provided that
the Buyer takes legal action ["Klage erheben"] within (3) three
months after such notification.
SECTION 13
CONTINUING AGREEMENTS, CUSTOMER AND SUPPLIER RELATIONSHIPS,
INSURANCE, CHANGE OF NAME
13.1 SERVICE AGREEMENTS. Xxxxxx and the Company, at or prior to the
Closing, shall enter into framework service agreements relating to
certain services and the use of infrastructure ("media") at the
company sites in Burghausen and Cologne-Merkenich as already
negotiated between Xxxxxx and the Company (subject to
specification of further technical issues), which will amend the
existing service agreement of 30 June
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1993 and shall continue to be in effect substantially at the terms
and conditions as currently negotiated between the Company and
Wacker (including fees and charges, subject, however, to increases
which are caused by increases of salaries or third party costs)
until 31 December 2002. The Seller and the Company shall further,
at or prior to Closing, enter into agreements regarding the
security at the sites in Burghausen and Cologne-Merkenich
["Standortsicherheitsvertraege"]. The Parties shall use their best
endeavours that the parties to such agreements perform their
obligations thereunder in accordance with their respective terms
and conditions.
13.2 SUPPLY AGREEMENTS. The Company and Vintron at or prior to the
Closing Date shall enter into supply agreements regarding the
supply of the Company with VCM and EDC in substantially the form
as attached as SCHEDULE 13.2 as already been negotiated (the
"SUPPLY AGREEMENTS"). The Parties are fully aware of the contents
of the Supply Agreements and fully agree to their terms and
conditions. The Parties hereby further agree that for the purpose
of this Agreement and the determination of the Consolidated
Audited EBITDA, irrespective whether the Supply Agreements are
terminated or the terms and conditions of the Supply Agreements
are amended prior to the relevant date, the current terms and
conditions of the Supply Agreement shall be deemed as in full
effect for the relevant time periods ending on 31 December 2000
and 31 December 2001. Furthermore, in the event of a lack of
supply with VCM Celanese Chemical Europe GmbH ("CELANESE
CHEMICAL") under the Vintron-Transaction has undertaken to
guarantee that Vintron will be provided with sufficient VCM up to
155 kt from third parties or from Celanese Chemical in order to
satisfy its obligations under the VC-Liefervertrag until 31
December 2001 by undertaking to compensate Vintron i.a. as
follows: In the event of lack of supply, Celanese Chemical has to
pay a penalty to Vintron (which Vintron shall pay to Vinnolit in
view of the existing VC-Liefervertrag between Vintron and
Vinnolit) equal to the lost contribution margin of Vinnolit which
is fixed between the parties at an amount of 450 DM/t VCM.
The Parties agree that the aforementioned obligation of Celanese
Chemical and the obligation of Vintron to pay the penalty to
Vinnolit shall remain in full effect until 31 December 2001.
13.3 CONTINUING AGREEMENTS. There are, and there will remain, a
multitude of service and infrastructure relationships as well as
supplier relationships between the Companies and the Seller and
the Seller's Affiliates. The Buyer hereby agrees to cause the
Companies to negotiate and enter into, on terms reasonably
acceptable to
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the parties involved, additional service related agreements
besides those referred to in Section 13.1 and this Section 13.3
which are or may become necessary to enable the Companies to
operate the Business and to enable the Seller and/or the Seller's
Affiliates to provide efficient services to all site users.
13.4 CHANGE OF NAME. Within (3) three months after the Closing Date,
the Seller shall have changed its firm name ["Firma"] deleting any
reference to "Vinnolit" and shall refrain from using or
distributing any products, marketing materials, brochures or
stationary or other materials containing or referring to the name
or sign "Vinnolit". For the avoidance of doubt, the right of
Wacker to distribute laquere resin products with the name and sign
"Vinnol" pursuant to the technology and license agreement with the
Company remains unaffected. The Buyer shall, and procure that the
Companies shall, after the same period of time defined in sentence
1 refrain from using or distributing any products or stationary
containing or referring to the names or signs Wacker, Celanese or
Hoechst. The Buyer shall not, and shall procure that the Companies
shall not, without the prior written consent of Celanese or
Wacker, as the case may be, use the name or signs of Wacker,
Celanese or Hoechst in marketing materials and brochures. Wacker
and Celanese give their consent to the use of the name Celanese
for the mere description of the history of the Business in
marketing materials, brochures and the like. The Buyer and the
Companies shall in no event indicate that the Business belongs, to
the Seller, Wacker, Hoechst AG or Celanese or any of their
affiliates. The Buyer shall further in no event be entitled to
use such names, signs and indications with respect to products
which do not belong to the Business.
13.5 HEREDITARY RIGHTS. Wacker hereby waives the condition provided for
in Section 9 sentence 2 last sub-sentence of the hereditary
building rights agreement of 28 June 1993 (deed.no.1565/1993 of
the notary public Xxxxxx Xxxxxx) according to which the privilege
of renewal ["Vorrecht auf Erneuerung"] pursuant to Section 31
Erbbaurechtsverordnung only applies, if Wacker at the date of
renewal holds, directly or indirectly, at least 25% of the shares
in the Company, and Wacker and the Company shall amend the
notarial deed accordingly no later than 10 business days after
Closing.
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SECTION 14
COVENANT NOT TO COMPETE
14.1 COVENANT NOT TO COMPETE. For a term of (2) two years after the
date hereof, the Seller, Wacker, Celanese and their controlled
subsidiaries within the sense of Section 17 of the German Stock
Corporation Act shall not, unless otherwise provided in Section
14.2 below, (i) engage in or carry out any business activities
which represent competition to the Business nor (ii) acquire a
controlling interest of more than 50% in the equity or in the
voting rights, neither directly nor indirectly, in entities which
compete with the Business, in each case on the relevant product
and geographic markets on which the Companies have been active at
the date hereof.
14.2 EXEMPTIONS. The following activities are exempt from the
restrictions set out in Section 14.1:
(a) the existing business activities of the Seller, Wacker,
Celanese and their controlled subsidiaries as presently
conducted, including but not limited to activities in the
development, production and distribution of the monomer
products hydrochloridacid, chlorine, caustic soda and
hydrogen and Xxxxxx'x activities in the development,
production, distribution and application of storage stable
dispersions or polymer powders or polymer blends or powders
with bonding properties, e.g. VINNEX LL 2321 or VINNEX LL
572, as well as the application and distribution of laquer
resins;
(b) acquiring an controlling interest in an entity, or any
assets thereof, which is not in the first place and not
mainly engaged in activities competing with the Business.
To the extent legally possible, the Seller, Wacker and
Celanese shall use their best efforts that in the event of
a sale of the PVC part of the acquired business such PVC
part of the acquired business shall be offered to the Buyer
prior to an offer to third parties.
(c) acquiring all or part of the assets of the chlorine
chemicals business at the facilities in Frankfurt am
Main-Hoechst, such business having been sold by Celanese
Chemicals Europe GmbH to L II Europe GmbH;
(d) any captive use of the Seller, Wacker, Celanese or their
controlled subsidiaries, i.e. production which is not sold
to third parties outside the group of affiliated
enterprises.
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SECTION 15
FURTHER COVENANTS OF THE BUYER
RELEASE FROM COLLATERAL. The Buyer shall procure that the Seller and the
Seller's Affiliates, as the case may be, are released from any collateral
provided by them to the benefit of any of the Companies as disclosed in SCHEDULE
15 and shall on the Seller's first demand indemnify the Seller and the
Affiliates, as the case may be, in respect of any and all claims resulting from
such collateral.
SECTION 16
CARTEL CLEARANCE, OTHER COVENANTS OF THE PARTIES
16.1 CO-OPERATION REGARDING CARTEL AUTHORITIES. The Parties agree to
co-operate fully with a view to obtaining unconditional clearance
by the German Federal Cartel Office and/or the European
Commission, whichever is required for the consummation of the
transactions contemplated hereby, without delay. The Seller's
counsel shall without undue delay, however, if possible, not later
than (10) ten working days after the date hereof, prepare all
files with regard to the application to the relevant cartel
authorities, which shall be reviewed by the Seller. The charges of
the respective cartel authorities are to be borne by the Buyer.
The cost of the Seller's counsel are to be borne by the Seller and
the cost of the Buyer's counsel are to be borne by the Buyer.
16.2 PARTIES' EFFORTS TO CLOSE. The Seller and the Buyer undertake to
use all reasonable efforts to ensure fulfilment and compliance
with all the conditions and obligations as set forth in this
Agreement and procure any necessary official authorisations as may
be required to consummate the transactions contemplated hereby as
soon as practicable as of the date hereof so as to secure Closing
and full completion of all the transactions contemplated hereby at
the earliest date possible.
SECTION 17
GENERAL PROVISIONS
17.1 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and in the German or
the English language and shall be given or made (and shall be
deemed to have been duly given or made upon receipt) by
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delivery in person, by telefax or by registered mail
["Einschreiben mit Rueckschein"] to the respective Parties at the
following addresses:
(a) if to the Seller:
to Wacker and Celanese
(b) if to Wacker:
Xxxxxx Chemie GmbH Hanns-Xxxxxx-Xxxxx 4 Telecopy: +49 / 89
62 79 - 17 52 Attention: General Counsel Xx. Xxxxxxxxx
Xxxxxxxx
with a copy to
Xxxxxxxx, Hemmelrath & Partner Xxxxxxxxxxxxx. 00 00000
Xxxxxxxx Telecopy: +49/89 21 636 - 133 Attention: Xx.
Xxxxxx Xxxxx
(c) if to Celanese:
Celanese XX Xxxxxxxxxxx Xxxxxxx 000 00000 Xxxxxxxx/Xxxxxx
Telecopy: +49/69 305 82731 Attention: General Counsel
with a copy to
Hengeler Xxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxxxxxxx 0 00000
Xxxxxxxxxxx Telecopy: + 49/ 211-132641 Attention: Xx.
Xxxxxx Xxxxxx
00
00
(x) if to the Buyer:
Xxxxxxxx XxxX & Xx. XX Xxxx-Xxxxx-Xxxx 00 00000 Ismaning
Telecopy: + 49/8996103-119 Attention: Managing Director
["Geschaeftsfuehrer"]
with copies to:
c/o Advent International Corporation 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000 XXX Telecopy: 001 / 617 951 - 0571
Attention: Xxx. Xxxxx Xxxxxxxx or Xx. Xxx Xxxxx
and to
Xxxxx & XxXxxxxx Xxxxxx Amereller Xxxxx Xxxxxxxxxxx. 00-00
00000 Xxxxxxxxx/Xxxx Telecopy: +49 / 69 299 08 - 108
Attention: Xx. Xxxxx Xxxxxxxx and Xx. Xxxxxxxxx Xxxxxxxxx
A change in the person or address of the aforementioned addressees
shall become effective for the other Party only (1) one month
after having been informed on such change by written notice.
17.2 PUBLIC ANNOUNCEMENTS. No Party to this Agreement shall make, or
cause to be made, any press releases or public announcements in
respect of this Agreement or the transactions contemplated hereby
or otherwise communicate with any news media without prior
notification to, and consultation with, the other Party, and the
Parties shall co-operate as to the timing and contents of any such
announcement.
17.3 HEADINGS. The descriptive headings contained in this Agreement are
for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
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17.4 GERMAN TERMS. The terms set forth in this Agreement in German language
shall take precedence over corresponding English terminology, if any, in
interpreting the contents of the pertinent contractual provision and be
interpreted in accordance with the meaning of that German term under
German law and as would be customary in German language contracts.
17.5 COSTS. Except as otherwise specified in the Agreement, all costs and
expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with
the Agreement and the transactions contemplated hereunder shall be paid
by the Party incurring such costs and expenses. Any and all notary public
fees and costs and expenses with regard to the execution and performance
of the Agreement and the transactions contemplated hereunder shall be
borne by the Buyer.
17.6 ENTIRE AGREEMENT. The Agreement together with any documents referred to
herein or incidental to the Agreement constitutes the entire Agreement
between the parties hereto and replaces and supersedes any agreements or
arrangements made previously in regard to the subject matter hereof.
17.7 AMENDMENTS. Any amendments, authorisations or variations of the
Agreement, including this Section 17.7, require written form (unless
notarisation is required) in order to be valid and effective.
17.8 SEVERABILITY. If any term or other provision of the Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of the Agreement shall
nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected
in any manner materially adverse to any Party. Upon such determination
that any term or other provision is invalid, illegal or incapable of
being enforced, the Parties hereto shall negotiate in good faith to
modify the Agreement so as to effect the original intent of the Parties
as closely as possible in an acceptable manner in order that the
transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
17.9 GOVERNING LAW, PLACE OF VENUE. The validity, performance and enforcement
of the Agreement shall be governed by German law. Exclusive place of
venue ["Ausschliesslicher Gerichtsstand"] shall be, at the claimant's
choice Munich or Frankfurt am Main.
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IN WITNESS THEREOF this Notarial Deed including the Schedules hereto and their
Exhibits
with the exception of certain balance sheets and other financial
statements, lists of items, titles, rights and obligations contained in
Schedules 5.2, 7.16, 7.17 and 9.2, in respect of which the persons
appearing waived the right to have them read aloud and which instead have
been presented to the persons appearing, were acknowledged, approved and
signed on each page by the persons appearing, and
with the further exception of Schedule 5.1, the documents attached after
the first page of Schedule 7.5 and the rental agreement Vinnolit/DBV in
Schedule 7.17, which are attached for identification purposes only and
the content of which does not form part of the Notarial Deed,
has been read aloud to the persons appearing and was confirmed and approved by
the persons appearing. The persons appearing then signed this Deed. All this was
done at the day herebelow written in the presence of me, the Notary Public, who
also signed this Deed and affixed my official Seal.
Basel, this 19th (nineteenth) day of May 2000 (two thousand)
