Exhibit 4.21
EXECUTION COPY
WAIVER AND CONSENT TO THE STANDSTILL AGREEMENT
WAIVER AND CONSENT TO THE STANDSTILL AGREEMENT, dated as of November
8, 2002 (this "Waiver and Consent"), to the Standstill Agreement and Fifth
Amendment to the Credit Agreement dated as of April 15, 2002 (as amended,
supplemented or otherwise modified from time to time, the "Standstill
Agreement"), among the Borrowing Subsidiaries signatories thereto, the Foreign
Subsidiary Guarantors signatories thereto, GNB Battery Technologies Japan, Inc.,
(GNB Battery Technologies Japan, Inc., together with the Borrowing Subsidiaries
and the Foreign Subsidiary Guarantors, the "Standstill Parties"), the Standstill
Lenders (as defined in the Credit Agreement), Credit Suisse First Boston, as
administrative agent (in such capacity, the "Administrative Agent") for the
Standstill Lenders, and others.
PRELIMINARY STATEMENTS
(1) The Company has requested that the DIP Lenders waive certain
provisions of the Post-Petition Credit Agreement, including waivers of certain
of the Cross Referenced Covenants incorporated by reference in the Standstill
Agreement.
(2) The Standstill Parties have requested that the Standstill Lenders
waive certain Cross Referenced Covenants, additional covenants and Standstill
Events in the Standstill Agreement. The Standstill Lenders are willing to
consent to such waiver upon and subject to the terms and conditions hereinafter
set forth.
(3) The Standstill Parties have requested that the Required Standstill
Lenders waive the requirements of Section 8.4 of the Post-Petition Credit
Agreement incorporated into Section 6 of the Standstill Agreement and the
resultant Standstill Event to permit the dilution of the ownership interest held
by Compagnie Europeene D'Accumulateurs, S.A. (France) ("CEAC") in INCI Exide
Akumulator Sanayi ve Ticaret Anonim Sirketi (Turkey) ("INCIExide") from 50% to
20%, all as more particularly set forth herein.
(4) The Standstill Parties have requested that the Required Standstill
Lenders waive the requirements of Section 8.4 of the Post-Petition Credit
Agreement incorporated into Section 6 of the Standstill Agreement and the
resultant Standstill Event to permit the issuance of Capital Stock by INCIExide
to Inci Holding A.S., Cinex Dis Ticaret ve Pazarlama A.S., Celkap Makina Xxxx
Celik Anayi ve Ticaret A.S., and Cevdet Inci (such recipients, collectively, the
"INCI Group", and such transaction, the "Stock Issuance"), without an
independent third appraisal as to the Fair Market Value (as defined in the
Post-Petition Credit Agreement) of the consideration being given therefor, all
as more particularly set forth herein.
(5) The Standstill Parties have requested that the Required Standstill
Lenders waive the requirements of Part II(b) of Schedule A referred to in
Section 7 of the Standstill
2
Agreement to permit CEAC to exercise the option it is being granted in
connection with the Stock Issuance to reinstate its ownership interest from 20%
back to 50%.
(6) The Standstill Parties have requested that the Required Standstill
Lenders waive the requirements of Section 8.11 of the Post-Petition Credit
Agreement incorporated into Section 6 of the Standstill Agreement and the
resultant Standstill Event to permit INCIExide to amend its Constituent
Documents (as defined in the Post-Petition Credit Agreement) to allow for the
issuance of additional share interests in its registered capital, all as more
particularly set forth herein.
(7) The Standstill Parties have requested that the Required Standstill
Lenders waive any Standstill Event pursuant to Section 8(v) of the Standstill
Agreement caused by the commencement of bankruptcy proceedings with respect to
Xxxxx Metals Company ("Xxxxx") and Refined Metals Corporation ("Refined",
together with Xxxxx, the "New Debtors"), each a Delaware corporation, as a
result of the Event of Default (as defined in the Post-Petition Credit
Agreement) pursuant to Section 9.1(f)(ii) of the Post-Petition Credit Agreement.
(8) The Standstill Parties have requested that the Required Standstill
Lenders waive any Standstill Event pursuant to Section 8(v) of the Standstill
Agreement caused by the failure of Refined to discharge or obtain a stay of
enforcement or execution of a judgment within 20 days in breach of the
requirements of Section 8.2 of the Post-Petition Credit Agreement, all as more
particularly set forth herein.
(9) The Standstill Parties have requested that the Required Standstill
Lenders temporarily waive until March 31, 2003 the requirements of Section
8.12(a) of the Post-Petition Credit Agreement incorporated into Section 6 of the
Standstill Agreement and the resultant Standstill Event to permit the Standstill
Parties to maintain balances in accounts located outside of the United States to
exceed $20,000,000, all as more particularly set forth herein.
(10) The Standstill Parties have requested that the Required
Standstill Lenders waive any Standstill Event pursuant to Section 8(i) of the
Standstill Agreement caused by the late payment by the Standstill Parties of
interest on Foreign Obligations due to the conversion of Euro Currency Loans to
Base Rate Loans.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise indicated, terms defined in
the Standstill Agreement or the Credit Agreement and used herein shall have the
meanings given to them in the Standstill Agreement or the Credit Agreement, as
applicable.
SECTION 2. Waiver and Consent. On the Effective Date (as hereinafter
defined) and subject to the terms and conditions set forth herein, the
Administrative Agent and the Required Standstill Lenders hereby:
(i) waive any Standstill Event that has occurred or may occur due to
the undertaking and completion of the issuance of Capital Stock in accordance
with the agreement made on 30 September 2002 between the INCI Group and CEAC as
attached hereto as Exhibit A (the "Turkish JV Agreement"), whether due to the
modification of the INCIExide's Constituent
3
Documents (as defined in the Post-Petition Credit Agreement), the dilution of
CEAC's interest or the lack of an independent third party appraisal;
(ii) consent to the exercise by CEAC of the option contained in the
Turkish JV Agreement so long as such exercise is in conformity with the
Standstill Agreement other than Part II(b) of Schedule A thereto;
(iii) waive any Standstill Event pursuant to Section 8(v) of the
Standstill Agreement that has occurred or may occur due to the commencement of
any bankruptcy proceedings with respect to the New Debtors and the resultant
Event of Default (as defined in the Post-Petition Credit Agreement) pursuant to
Section 9.1(f)(ii) of the Post-Petition Credit Agreement;
(iv) waive any Standstill Event pursuant to Section 8(v) of the
Standstill Agreement that has occurred or may occur due to the failure of
Refined to discharge or obtain a stay of that certain judgment in the amount of
$179,060.61 in favor of Xxxxxxx Iron & Metal in breach of the requirements of
Section 8.2 of the Post-Petition Credit Agreement;
(v) temporarily waive any Standstill Event that has occurred or may
occur pursuant to Section 6 and 8(v) of the Standstill Agreement due to the
retention of cash and Cash Equivalents in accounts located outside of the United
States in an aggregate amount in excess $20,000,000 in breach of the
requirements of Section 8.12(a) and the resultant Event of Default (as defined
in the Post-Petition Credit Agreement) pursuant to Section 9.1(d)(i) of the
PostPetition Credit Agreement; provided however, that the waiver granted
pursuant to this clause (v) shall cease to be in effect and the aggregate amount
in such foreign accounts shall be tested as set forth in the Post-Petition
Credit Agreement and as incorporated into the Standstill Agreement by Section 6
thereof on the earlier to occur of (a) March 31, 2003 or (b) the date on which
the aggregate amount in such foreign accounts exceeds $55,000,000; provided
further, that, on or before the last Business Day of each calendar month, the
Standstill Parties shall use their reasonable best efforts (subject to
applicable legal and contractual restrictions and cash requirements) to apply
such cash and Cash Equivalents in excess of $20,000,000 to the repayment of all
Foreign Intercompany Loans (as defined in the Post-Petition Credit Agreement)
pursuant to the Post-Petition Credit Agreement; and
(vi) waive the Standstill Event pursuant to Section 8(i) of the
Standstill Agreement that has occurred due to the failure of the Standstill
Parties to pay within two Business Days after such interest was due additional
interest on certain Foreign Obligations, resulting from the conversion of Euro
Currency Loans to Base Rate Loans during the period April 15, 2002 through
November 4, 2002 (and which additional interest has been paid) .
SECTION 3. Conditions to Effectiveness. This Waiver and Consent shall
be effective on the date on which the Administrative Agent shall have signed the
Waiver and Consent and all of the following conditions precedent have been
satisfied (the "Effective Date"):
(a) The Administrative Agent shall have received on or before the
Effective Date all of the following, each of which shall be in form and
substance satisfactory to the Administrative Agent:
4
(i) this Waiver and Consent executed by (x) sufficient Standstill
Lenders to constitute the Required Standstill Lenders, (y) each of the Loan
Parties and (z) the Administrative Agent;
(ii) such additional documentation as the Administrative Agent may
reasonably require;
(iii) each of the amended Shareholders Agreement, the amended Articles
of Association, the Share Purchase Agreement (each as defined in the Turkish JV
Agreement) and the Turkish JV Agreement fully and duly executed by the parties
thereto including, without limitation, an option for CEAC to purchase,
repurchase or infuse capital such that its equity position in INCIExide may be
reinstated to 50%, such option to be on terms reasonably satisfactory to the
Administrative Agent; and
(iv) agreements from each of Exinco Aku Ve Otomotive San. Ltd. Sti.
and INCIExide to sell their products to the Company and its Subsidiaries and
containing covenants prohibiting competition in certain markets.
(b) Fees and Expenses. All accrued and unpaid fees and expenses of the
Administrative Agent in connection with this Waiver and Consent including,
without limitation, the unpaid fees and expenses of counsel to the
Administrative Agent (including United States and local counsel in foreign
jurisdictions) shall have been paid.
SECTION 4. Post-Effective Date Condition. On or before December 4,
2002, Exide Technologies Limited shall deliver to the Administrative Agent its
security documents required to be executed pursuant to Section 11 of the
Standstill Agreement.
SECTION 5. Representations and Warranties. To induce the Standstill
Lenders parties hereto to enter into this Waiver and Consent, each of the
Standstill Parties hereby represents and warrants to the Administrative Agent
and all of the Standstill Lenders the following:
(a) The execution, delivery and performance by each Standstill Party
of the Waiver and Consent and the Loan Documents to which it is a party, as
waived hereby, are within such Standstill Party's corporate powers, have been
duly authorized by all necessary corporate action, and do not (i) contravene
such Standstill Party's Constituent Documents (as defined in the Post-Petition
Credit Agreement), (ii) violate any law (including, without limitation, the
Securities Exchange Act of 1934), rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award
applicable to such Standstill Party, or (iii) conflict with or result in the
breach of, or constitute a default under, any Contractual Obligation, including,
without limitation, the bilateral loan documents, of EHE, EHA or any of their
Subsidiaries. As of the Effective Date, no Standstill Party is in violation of
any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or in breach of any such contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument, the violation or
breach of which is reasonably expected to have a Material Adverse Effect.
5
(b) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other third
party is required to be obtained by the Standstill Parties in connection with
the execution and delivery, or performance by any Standstill Party of any of its
obligations under the Waiver and Consent and the Standstill Agreement, as
amended hereby.
(c) The Waiver and Consent has been duly executed and delivered by
each Standstill Party, and is the legal, valid and binding obligation of such
Standstill Party, enforceable against such Standstill Party in accordance with
its terms except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or limiting creditors' rights or by
equitable principles generally.
(d) No Standstill Party has an existing claim against any Standstill
Lender arising out of, relating to or in connection with the Loan Documents.
(e) As of the Effective Date, EHE is not in breach of, or in default
under, the DM Agreement, and no Foreign Subsidiary is in breach of, or in
default under, any other Contractual Obligation, binding on or affecting any
Foreign Subsidiary or any of their properties, where the consequence of such
default is to confer rights upon any person against such Foreign Subsidiary
which, if exercised, can be reasonably expected to have a Material Adverse
Effect.
(f) The representations and warranties made by each of the Standstill
Parties in the Loan Documents are true and correct in all material respects on
and as of the date hereof, after giving effect to the effectiveness of this
Waiver and Consent, as if made on and as of the date hereof.
(g) Each Standstill Party hereby represents and warrants to the
Standstill Lenders and the Administrative Agent that as of the date hereof, and
after giving effect to the waiver contained herein, (a) no Standstill Event
under the Standstill Agreement shall have occurred and be continuing and (b) all
of the representations and warranties of such Standstill Party contained in
Section 12 of the Standstill Agreement and in any other Loan Document are, as of
the date of execution hereof, true and correct in all material respects, as
though made on and as of such date (other than representations and warranties in
any such Loan Document expressly limited to a specific date).
SECTION 6. Reference to and Effect on the Loan Documents.
(a) On and after the Effective Date, each reference in the Standstill
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Standstill Agreement and each reference in the Post-Petition
Credit Agreement and other Loan Documents to "the Standstill Agreement",
"thereunder", "thereof" or words of like import referring to the Standstill
Agreement, shall mean and be a reference to the Standstill Agreement as amended
and otherwise modified hereby.
(b) The Standstill Agreement, the Post-Petition Credit Agreement and
each of the other Loan Documents, except to the extent of the waiver
specifically provided above, are and shall continue to be in full force and
effect except as specifically waived hereby.
6
(c) This Waiver and Consent is and shall be a Loan Document.
SECTION 7. Affirmation of Loan Documents. Each Standstill Party, in
its capacity as a Guarantor or otherwise, hereby consents to the waiver of the
Standstill Agreement effected hereby and hereby acknowledges and agrees that the
terms of this Waiver and Consent shall not affect in any way its obligations and
liabilities under the Credit Agreement, including under its guarantee, the
Standstill Agreement or any other Loan Document to which it is a party, all of
which obligations and liabilities shall remain in full force and effect and each
of which is hereby reaffirmed.
SECTION 8. GOVERNING LAW. THIS WAIVER AND CONSENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Waiver of Jury Trial. Each of the Standstill Parties, the
Administrative Agent and the Standstill Lenders irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Waiver and
Consent or the actions of the Administrative Agent or any Standstill Lender in
the negotiation, administration, performance or enforcement thereof.
SECTION 10. Execution in Counterparts. This Waiver and Consent may be
executed by one or more of the parties to this Wavier and Consent on any number
of separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
SECTION 11. Costs and Expenses. EHE hereby agrees to pay, and each of
the other Foreign Subsidiary Guarantors guarantees payment (subject to the
exceptions set forth in Schedule 10.1 of the Post-Petition Credit Agreement) of,
all reasonable costs and expenses associated with the preparation, execution,
delivery, administration, and enforcement of this Waiver and Consent, including,
without limitation, the fees and expenses of the Administrative Agent's counsel
(including local counsel in foreign jurisdictions) and financial advisor and the
out-of-pocket expenses of the Steering Committee (in each case, whether incurred
prior to or after the Effective Date).
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
7
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and Consent to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
Each of the following Subsidiaries as a
Borrowing Subsidiary and as a Guarantor,
subject to the limitations, if any, contained
in Section 10.1 of the Credit Agreement
EXIDE HOLDING EUROPE S.A.
By: /s/ Xxxxxxxxx
-----------------------------------------
Name: XXXXXXXXX
Title: Chairman
COMPAGNIE EUROPEENNE
D'ACCUMULATEURS S.A.
By:
-----------------------------------------
Name:
Title:
EURO EXIDE CORPORATION LIMITED
By:
-----------------------------------------
Name:
Title:
SOCIEDAD ESPANOLA DEL ACUMULADOR
XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
TUDOR A.B.
By:
-----------------------------------------
Name:
Title:
7
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and Consent to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
Each of the following Subsidiaries as a
Borrowing Subsidiary and as a Guarantor,
subject to the limitations, if any, contained
in Section 10.1 of the Credit Agreement
EXIDE HOLDING EUROPE S.A.
By:
-----------------------------------------
Name:
Title:
COMPAGNIE EUROPEENNE
D'ACCUMULATEURS S.A.
By: /s/ N. S. Bright
-----------------------------------------
Name: N. S. BRIGHT
Title: PRESIDENT, CEAC.
EURO EXIDE CORPORATION LIMITED
By:
-----------------------------------------
Name:
Title:
SOCIEDAD ESPANOLA DEL ACUMULADOR
XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
TUDOR A.B.
By:
-----------------------------------------
Name:
Title:
7
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and Consent to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
Each of the following Subsidiaries as a
Borrowing Subsidiary and as a Guarantor,
subject to the limitations, if any, contained
in Section 10.1 of the Credit Agreement
EXIDE HOLDING EUROPE S.A.
By:
-----------------------------------------
Name:
Title:
COMPAGNIE EUROPEENNE
D'ACCUMULATEURS S.A.
By:
-----------------------------------------
Name:
Title:
EURO EXIDE CORPORATION LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
SOCIEDAD ESPANOLA DEL ACUMULADOR
XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
TUDOR A.B.
By:
-----------------------------------------
Name:
Title:
7
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and Consent to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
Each of the following Subsidiaries as a
Borrowing Subsidiary and as a Guarantor,
subject to the limitations, if any, contained
in Section 10.1 of the Credit Agreement
EXIDE HOLDING EUROPE S.A.
By:
-----------------------------------------
Name:
Title:
COMPAGNIE EUROPEENNE D'ACCUMULATEURS S.A.
By:
-----------------------------------------
Name:
Title:
EURO EXIDE CORPORATION LIMITED
By:
-----------------------------------------
Name:
Title:
SOCIEDAD ESPANOLA DEL ACUMULADOR XXXXX X.X.
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: SECRETARY OF THE BOARD
TUDOR A.B.
By:
-----------------------------------------
Name:
Title:
7
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and Consent to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
Each of the following Subsidiaries as a
Borrowing Subsidiary and as a Guarantor,
subject to the limitations, if any, contained
in Section 10.1 of the Credit Agreement
EXIDE HOLDING EUROPE S.A.
By:
-----------------------------------------
Name:
Title:
COMPAGNIE EUROPEENNE D'ACCUMULATEURS S.A.
By:
-----------------------------------------
Name:
Title:
EURO EXIDE CORPORATION LIMITED
By:
-----------------------------------------
Name:
Title:
SOCIEDAD ESPANOLA DEL ACUMULADOR XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
TUDOR A.B.
By: /s/ Illegible
-----------------------------------------
Name:
Title:
8
EXIDE TECHNOLOGIES NEDERLAND B.V.
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: Illegible
CMP BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
DEUTSCHE EXIDE STANDBY GMBH
By:
-----------------------------------------
Name:
Title:
DEUTSCHE EXIDE GMBH
By:
-----------------------------------------
Name:
Title:
MERCOLEC TUDOR B.V.
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: Illegible
/s/ Illegible
-----------------------------------------
Illegible
Managing Director
8
EXIDE TECHNOLOGIES NEDERLAND B.V.
By:
-----------------------------------------
Name:
Title:
CMP BATTERIES LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
DEUTSCHE EXIDE STANDBY GMBH
By:
-----------------------------------------
Name:
Title:
DEUTSCHE EXIDE GMBH
By:
-----------------------------------------
Name:
Title:
MERCOLEC TUDOR B.V.
By:
-----------------------------------------
Name:
Title:
8
EXIDE TECHNOLOGIES NEDERLAND B.V.
By:
-----------------------------------------
Name:
Title:
CMP BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
DEUTSCHE EXIDE STANDBY GMBH
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
DEUTSCHE EXIDE GMBH
By:
-----------------------------------------
Name:
Title:
MERCOLEC TUDOR B.V.
By:
-----------------------------------------
Name:
Title:
8
EXIDE TECHNOLOGIES NEDERLAND B.V.
By:
-----------------------------------------
Name:
Title:
CMP BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
DEUTSCHE EXIDE STANDBY GMBH
By:
-----------------------------------------
Name:
Title:
DEUTSCHE EXIDE GMBH
By: /s/ Xxxxxxxxx
-----------------------------------------
Name: XXXXXXXXX
Title: Managing Director
MERCOLEC TUDOR B.V.
By:
-----------------------------------------
Name:
Title:
9
Each of the following Subsidiaries as a
Guarantor, subject to the limitations, if
any, contained in Section 10.1 of the Credit
Agreement
CHLORIDE MOTIVE POWER IBERICA S.L.
By: /s/ Xxxxx Xxxxx-Brea
-----------------------------------------
Name: XXXXX XXXXX-BREA
Title: SECRETARY OF THE BOARD
CMP BATTERUEN N.V.
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE BATTERIE GMBH
By:
-----------------------------------------
Name:
Title:
XXXXX BATTERIE AG
By:
-----------------------------------------
Name:
Title:
ELECTRO MERCANTIL INDUSTRIAL S.L.
By: /s/ Xxxxx Xxxxx-Brea
-----------------------------------------
Name: XXXXX XXXXX-BREA
Title: SECRETARY OF THE BOARD
EXIDE (DAGENHAM) LIMITED
By:
-----------------------------------------
Name:
Title:
9
Each of the following Subsidiaries as a
Guarantor, subject to the limitations, if
any, contained in Section 10.1 of the Credit
Agreement
FULMEN IBERICA S.L.
By:
-----------------------------------------
Name:
Title:
CMP BATTERUEN N.V.
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Director
By:
-----------------------------------------
Name: Xxxxxx Xx Xxxxx
Title: Director
EXIDE AUTOMOTIVE BATTERIE GMBH
By:
-----------------------------------------
Name:
Title:
XXXXX BATTERIE AG
By:
-----------------------------------------
Name:
Title:
ELECTRO MERCANTIL INDUSTRIAL S.L.
By:
-----------------------------------------
Name:
Title:
9
Each of the following Subsidiaries as a
Guarantor, subject to the limitations, if
any, contained in Section 10.1 of the Credit
Agreement
FULMEN IBERICA S.L.
By:
-----------------------------------------
Name:
Title:
CMP BATTERUEN N.V.
By:
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Director
By: /s/ Xxxxxx Xx Xxxxx
-----------------------------------------
Name: Xxxxxx Xx Xxxxx
Title: Director
EXIDE AUTOMOTIVE BATTERIE GMBH
By:
-----------------------------------------
Name:
Title:
XXXXX BATTERIE AG
By:
-----------------------------------------
Name:
Title:
ELECTRO MERCANTIL INDUSTRIAL S.L.
By:
-----------------------------------------
Name:
Title:
9
Each of the following Subsidiaries as a
Guarantor, subject to the limitations, if
any, contained in Section 10.1 of the Credit
Agreement
FULMEN IBERICA S.L.
By:
-----------------------------------------
Name:
Title:
CMP BATTERIJEN N.V.
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE BATTERIE GMBH
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: XXXXXXX XXXXXX
Title: MANAGING DIRECTOR
XXXXX BATTERIE AG
By:
-----------------------------------------
Name:
Title:
ELECTRO MERCANTIL INDUSTRIAL S.L.
By:
-----------------------------------------
Name:
Title:
EXIDE (DAGENHAM) LIMITED
By:
-----------------------------------------
Name:
Title:
9
Each of the following Subsidiaries as a
Guarantor, subject to the limitations, if
any, contained in Section 10.1 of the Credit
Agreement
FULMEN IBERICA S.L.
By:
-----------------------------------------
Name:
Title:
CMP BATTERIJEN N.V.
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE BATTERIE GMBH
By:
-----------------------------------------
Name:
Title:
XXXXX BATTERIE AG
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: Chairman
ELECTRO MERCANTIL INDUSTRIAL S.L.
By:
-----------------------------------------
Name:
Title:
EXIDE (DAGENHAM) LIMITED
By:
-----------------------------------------
Name:
Title:
9
Each of the following Subsidiaries as a
Guarantor, subject to the limitations, if
any, contained in Section 10.1 of the Credit
Agreement
FULMEN IBERICA S.L.
By:
-----------------------------------------
Name:
Title:
CMP BATTERIJEN N.V.
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE BATTERIE GMBH
By:
-----------------------------------------
Name:
Title:
XXXXX BATTERIE AG
By:
-----------------------------------------
Name:
Title:
ELECTRO MERCANTIL INDUSTRIAL S.L.
By:
-----------------------------------------
Name:
Title:
EXIDE (DAGENHAM) LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
10
FULMEN UK LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE S.A.
By:
-----------------------------------------
Name:
Title:
SOCIEDADE PORTUGUESA DO ACUMULADOR XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
EXIDE DANMARK A/S
By:
-----------------------------------------
Name:
Title:
EXIDE BATTERIER AB
By:
-----------------------------------------
Name:
Title:
CENTRA S.A.
By:
-----------------------------------------
Name:
Title:
XXXXXXXX & WOLF BATTERIETECHNIK GMBH
By:
-----------------------------------------
Name:
Title:
10
FULMEN UK LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE S.A.
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: Chairman
SOCIEDADE PORTUGUESA DO ACUMULADOR XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
EXIDE DANMARK A/S
By:
-----------------------------------------
Name:
Title:
EXIDE BATTERIER AB
By:
-----------------------------------------
Name:
Title:
CENTRA S.A.
By:
-----------------------------------------
Name:
Title:
XXXXXXXX & WOLF BATTERIETECHNIK GMBH
By:
-----------------------------------------
Name:
Title:
10
EXIDE (DAGENHAM) LIMITED
By:
-----------------------------------------
Name:
Title:
FULMEN UK LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE S.A.
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: Director
By:
-----------------------------------------
Name: Xxxxxx Xx Xxxxx
Title: Director
SOCIEDADE PORTUGUESA DO ACUMULADOR XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
EXIDE DANMARK A/S
By:
-----------------------------------------
Name:
Title:
EXIDE BATTERIER AB
By:
-----------------------------------------
Name:
Title:
10
EXIDE (DAGENHAM) LIMITED
By:
-----------------------------------------
Name:
Title:
FULMEN UK LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE S.A.
By:
-----------------------------------------
Name: Illegible
Title: Director
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: Director
SOCIEDADE PORTUGUESA DO ACUMULADOR XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
EXIDE DANMARK A/S
By:
-----------------------------------------
Name:
Title:
EXIDE BATTERIER AB
By:
-----------------------------------------
Name:
Title:
10
FULMEN UK LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE S.A.
By:
-----------------------------------------
Name:
Title:
SOCIEDADE PORTUGUESA DO ACUMULADOR XXXXX X.X.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxxx Xxxxxxxx
Title: Director
EXIDE DANMARK A/S
By:
-----------------------------------------
Name:
Title:
EXIDE BATTERIER AB
By:
-----------------------------------------
Name:
Title:
CENTRA S.A.
By:
-----------------------------------------
Name:
Title:
XXXXXXXX & WOLF BATTERIETECHNIK GMBH
By:
-----------------------------------------
Name:
Title:
10
FULMEN UK LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE S.A.
By:
-----------------------------------------
Name:
Title:
SOCIEDADE PORTUGUESA DO ACUMULADOR XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
EXIDE DANMARK A/S
By: /s/ Illegible
-----------------------------------------
Name:
Title:
EXIDE BATTERIER AB
By: /s/ Illegible
-----------------------------------------
Name:
Title:
CENTRA S.A.
By:
-----------------------------------------
Name:
Title:
XXXXXXXX & WOLF BATTERIETECHNIK GMBH
By:
-----------------------------------------
Name:
Title:
10
FULMEN UK LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE S.A.
By:
-----------------------------------------
Name:
Title:
SOCIEDADE PORTUGUESA DO ACUMULADOR XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
EXIDE DANMARK A/S
By:
-----------------------------------------
Name:
Title:
EXIDE BATTERIER AB
By:
-----------------------------------------
Name:
Title:
CENTRA S.A.
By: /s/ Xxxxxxxxxx Xxxxxxxx - Xxxxx
-----------------------------------------
Name: Xxxxxxxxxx Xxxxxxxx - Xxxxx
Title: Poland Country Manager
XXXXXXXX & WOLF BATTERIETECHNIK GMBH
By:
-----------------------------------------
Name:
Title:
10
FULMEN UK LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE AUTOMOTIVE S.A.
By:
-----------------------------------------
Name:
Title:
SOCIEDADE PORTUGUESA DO ACUMULADOR XXXXX X.X.
By:
-----------------------------------------
Name:
Title:
EXIDE DANMARK A/S
By:
-----------------------------------------
Name:
Title:
EXIDE BATTERIER AB
By:
-----------------------------------------
Name:
Title:
CENTRA S.A.
By:
-----------------------------------------
Name:
Title:
XXXXXXXX & WOLF BATTERIETECHNIK GMBH
By: /s/ Xxxxxxxx XxxxxxxXxx
-----------------------------------------
Name: Xxxxxxxx XxxxxxxXxx
Title: Managing Director
11
EXIDE SONNAK A/S
By: /s/ Illegible
-----------------------------------------
Name:
Title:
EXIDE BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
B.I.G. BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE LENDING LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE ITALIA S.R.L.
By:
-----------------------------------------
Name:
Title:
INDUSTRIA COMPOSIZIONI STAMPATE, SPA
By:
-----------------------------------------
Name:
Title:
EXIDE HOLDINGS LIMITED
By:
-----------------------------------------
Name:
Title:
11
EXIDE SONNAK A/S
By:
-----------------------------------------
Name:
Title:
EXIDE BATTERIES LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
B.I.G. BATTERIES LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
EXIDE LENDING LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE ITALIA S.R.L.
By:
-----------------------------------------
Name:
Title:
INDUSTRIA COMPOSIZIONI STAMPATE, SPA
By:
-----------------------------------------
Name:
Title:
EXIDE HOLDINGS LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
11
EXIDE SONNAK A/S
By:
-----------------------------------------
Name:
Title:
EXIDE BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
B.I.G. BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE LENDING LIMITED
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
EXIDE ITALIA S.R.L.
By:
-----------------------------------------
Name:
Title:
INDUSTRIA COMPOSIZIONI STAMPATE, SPA
By:
-----------------------------------------
Name:
Title:
EXIDE HOLDINGS LIMITED
By:
-----------------------------------------
Name:
Title:
11
EXIDE SONNAK A/S
By:
-----------------------------------------
Name:
Title:
EXIDE BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
B.I.G. BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE LENDING LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE ITALIA S.R.L.
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: CHAIRMAN & CEO
INDUSTRIA COMPOSIZIONI STAMPATE, SPA
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: CHAIRMAN & CEO
EXIDE HOLDINGS LIMITED
By:
-----------------------------------------
Name:
Title:
12
EXIDE TECHNOLOGIES HOLDING BV
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: MAN. DIRECTOR
EXIDE TRANSPORTATION HOLDING EUROPE, SL
By:
-----------------------------------------
Name:
Title:
EXIDE AUSTRALIA PTY LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE TECHNOLOGIES LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE HOLDING ASIA PTE LIMITED
By:
-----------------------------------------
Name:
Title:
12
EXIDE TECHNOLOGIES HOLDING BV
By:
-----------------------------------------
Name:
Title:
EXIDE TRANSPORTATION HOLDING
EUROPE, SL
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: SECRETARY OF THE BOARD
EXIDE AUSTRALIA PTY LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE TECHNOLOGIES LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE HOLDING ASIA PTE LIMITED
By:
-----------------------------------------
Name:
Title:
12
EXIDE TECHNOLOGIES HOLDING BV
By:
-----------------------------------------
Name:
Title:
EXIDE TRANSPORTATION HOLDING
EUROPE, SL
By:
-----------------------------------------
Name:
Title:
EXIDE AUSTRALIA PTY LIMITED
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
EXIDE TECHNOLOGIES LIMITED
By: Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title:
EXIDE HOLDING ASIA PTE LIMITED
By:
-----------------------------------------
Name:
Title:
12
EXIDE TECHNOLOGIES HOLDING BV
By:
-------------------------------------
Name:
Title:
EXIDE TRANSPORTATION HOLDING EUROPE, SL
By:
-------------------------------------
Name:
Title:
EXIDE AUSTRALIA PTY LIMITED
By:
-------------------------------------
Name:
Title:
EXIDE TECHNOLOGIES LIMITED
By:
-------------------------------------
Name:
Title:
EXIDE HOLDING ASIA PTE LIMITED
By: /s/ Illegible
-------------------------------------
Name:
Title:
00
XXX XXXXXXXXXXXX (XXXXX) LIMITTED
By: /s/ Illegible
-------------------------------------
Name:
Title:
EXIDE SINGAPORE PTE LIMITED
By: /s/ Illegible
-------------------------------------
Name:
Title:
EXIDE CANADA INC.
By:
-------------------------------------
Name:
Title:
1036058 ONTARIO INC.
By:
-------------------------------------
Name:
Title:
GNB TECHNOLOGIES LIMITED
By:
-------------------------------------
Name:
Title:
MBD NATIONAL LIMITED
By:
-------------------------------------
Name:
Title:
NATION BATTERY DISTRIBUTION LIMITED
By:
-------------------------------------
Name:
Title:
00
XXX XXXXXXXXXXXX (XXXXX) LIMITED
By:
-------------------------------------
Name:
Title:
EXIDE SINGAPORE PTE LIMITED
By:
-------------------------------------
Name:
Title:
EXIDE CANADA INC.
By: /s/ Xxxxx X. Israel
-------------------------------------
Name: Xxxxx X. Israel
Title: Assistant Secretary
1036058 ONTARIO INC.
By: /s/ Xxxxx X. Israel
-------------------------------------
Name: Xxxxx X. Israel
Title: Assistant Secretary
GN8 TECHNOLOGIES LIMITED
By:
-------------------------------------
Name:
Title:
MBD NATIONAL LIMITED
By:
-------------------------------------
Name:
Title:
NATIONAL BATTERY DISTRIBUTION LIMITED
By:
-------------------------------------
Name:
Title:
00
XXX XXXXXXXXXXXX (XXXXX) LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE SINGAPORE PTE LIMITED
By:
-----------------------------------------
Name:
Title:
EXIDE CANADA INC.
By:
-----------------------------------------
Name:
Title:
1036058 ONTARIO INC.
By:
-----------------------------------------
Name:
Title:
GNB TECHNOLOGIES LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
MBD NATIONAL LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
NATIONAL BATTERY DISTRIBUTION LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
14
NORD GROUP LIMITED
By:
-----------------------------------------
Name:
Title:
OHE LIMITED
By:
-----------------------------------------
Name:
Title:
SPITFIRE BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
TS BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
GNB TECHNOLOGIES NV
By: /s/ Illegible
-----------------------------------------
Name: Illegible
Title: Director
DETA UK LIMITED
By:
-----------------------------------------
Name:
Title:
FRIWO BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
14
NORD GROUP LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
OHE LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
SPITFIRE BATTERIES LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
TS BATTERIES LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
GNB TECHNOLOGIES NV
By:
-----------------------------------------
Name:
Title:
DETA UK LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
FRIWO BATTERIES LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
14
NORD GROUP LIMITED
By:
-----------------------------------------
Name:
Title:
OHE LIMITED
By:
-----------------------------------------
Name:
Title:
SPITFIRE BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
TS BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
GNB TECHNOLOGIES NV
By:
-----------------------------------------
Name: Xxxxxx Xxxx
Title: Director
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
DETA UK LIMITED
By:
-----------------------------------------
Name:
Title:
FRIWO BATTERIES LIMITED
By:
-----------------------------------------
Name:
Title:
15
GEMALA IRELAND (HOLDINGS) LIMITED
By: /s/ Illegible
-----------------------------------------
Name:
Title:
16
GNB BATTERY TECHNOLOGIES JAPAN, INC.
As a Gurantor, subject to the limitations, if
any, contained in Section 10.1 of the Credit
Agreement
By: /s/ Illegible
-----------------------------------------
Name:
Title:
11
CREDIT SUISSE FIRST BOSTON, as Administrative
agent
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Director
12
Lenders
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx Xxxxx /s/ Xxx Xxxxxx
------------------------ ------------------------
Name: XXXXXX XXXXX Xxx Xxxxxx
Title: MANAGING DIRECTOR Assistant Vice President
12
Lenders
AG CAPITAL FUNDING PARTNERS LP.
BY: XXXXXX, XXXXXX & CO., L.P.,
AS INVESTMENT ADVISOR
(Print Name of Lender)
By /s/ Illegible
-----------------------------------------
Name: Illegible
Title: Managing Director
12
Lenders
ARCHIMEDES FUNDING, LLC.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxx X. Xxxxxx CFA
-----------------------------------------
Name: XXXX X. XXXXXX CFA
Title: VICE PRESIDENT
ARCHIMEDES FUNDING II, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxx X. Xxxxxx CFA
-----------------------------------------
Name: XXXX X. XXXXXX CFA
Title: VICE PRESIDENT
ARCHIMEDES FUNDING III, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxx X. Xxxxxx CFA
-----------------------------------------
Name: XXXX X. XXXXXX CFA
Title: VICE PRESIDENT
12
Lenders
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxx X. Xxxxxx CFA
-----------------------------------------
Name: XXXX X. XXXXXX CFA
Title: VICE PRESIDENT
SEQUILS-ING I (HBDGM), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxx X. Xxxxxx CFA
-----------------------------------------
Name: XXXX X. XXXXXX CFA
Title: VICE PRESIDENT
BALANCED HIGH-YIELD FUND I, LTD.
as Asset Manager
BY: /s/ Xxxx X. Xxxxxx CFA
-----------------------------------------
Name: XXXX X. XXXXXX CFA
Title: VICE PRESIDENT
Lenders
BANCA POPOLARE DI BERGAMO-CV Seri
By /s/ Riccardo Sora
-----------------------------------------
Name: Riccardo Sora
Title: Deputy General Manager
By /s/ Xxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
12
Lenders
Bank Polska Kasa Opieki SA
New York Branch
[Print Name of Lender]
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Leading Officer
00
Xxxxxxx
Xxx Xxxx xx Xxxx Xxxxxx
[Print Name of Lender]
By /s/ Xxxxxxxxxxx Xxxx
-----------------------------------------
Name: XXXXXXXXXXX XXXX
Title: DIRECTOR
00
Xxxxxxx
XXXX XX XXXXXXXX
[PRINT NAME OF LENDER]
By /s/ Illegible
-----------------------------------------
Name: Illegible
Title: ASOCIATE DIRECTOR
OF SYNDICATIONS
12
Lenders
Cargill Financial Services International
Inc.,
[Print Name of Lender]
By /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
12
Lenders
CREDIT INDUSTRIEL ET COMMERCIAL
By /s/ Xxxxxxx Xxxx /s/ Xxxx Xxxxxxx
--------------------- --------------------
Name: Xxxxxxx Xxxx Xxxx Xxxxxxx
Title: Vice President First Vice President
12
Exide waiver and consent to the Standstill Agreement, dated as of 8th
November 2002
Lenders
Credit Industriel et Commercial, London Branch
By /s/ Xxxx Xxxxxx /s/ Xxx Xxxxxxxxx
--------------------- --------------------
Name: Xxxx Xxxxxx Xxx Xxxxxxxxx
Title: Manager Manager
12
Lenders
Citadel Credit Trading Ltd.
By: Citadel Limited Partnership, its
Portfolio Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its
General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, General Counsel
12
Lenders
Citadel Equity Fund Ltd.
By: Citadel Limited Partnership, its
Portfolio Manager
By: GLB Partners, L.P., its General Partner
By: Citadel Investment Group, L.L.C., its
General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, General Counsel
12
Lenders
Credit Suisse First Boston International
[Print Name of Lender]
By /s/ Illigible
-----------------------------------------
Name:
Title:
12
Lenders
Centurion CDO I, Limited
By: American Express Asset Management
Group Inc. as Collateral Manager
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
12
Lenders
Contrasian Capital Funds
[Print Name of Lenders]
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: XXXXXX X. XXXXXXX
Title: MEMBER
Lenders
Dresdner Bank AG New York
And Grand Cayman Branches
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: XXXXXXX X. XXXXXXX
Title: VICE PRESIDENT
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Associate
12
Lenders 11-11-2002
FORTIS BANK (Nederland) NV
Blaak 555
0000 XX XXXXXXXXX
[Print Name of Lender]
By: /s/ A. M. de Blieck /s/ R. H. W. A. XXXXXXXXX
--------------------- -------------------------
Name: A. M. de Blieck R. H. W. A. XXXXXXXXX
Title: PROXY HOLDER
12
Lenders
HBK Master Fund L.P.
By: HBK Investment L.P.,
Investment Advisor
[Print Name of Lender]
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
19
Lenders
JNG BHF Bank AG
[Print Name of Lender]
By /s/ Illegible /s/ Xxxxxxxxx
------------------------------- -----------------
Name: Illegible Xxxxxxxxx
Title: Assistant Vice President Vice President
12
Lenders
KZH CNC LLC
[Print Name of Lender]
By /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Name: XXXXXXX XXXXXXXXX
Title: AUTHORIZED AGENT
12
Lenders
KZH CYPRESSTREE-1 LLC
[Print Name of Lender]
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Agent
12
Lenders
KZH ING-2 LLC
[Print Name of Lender]
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Agent
12
Lenders
KZH PONDVIEW LLC
[Print Name of Lender]
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Agent
12
Lenders
KZH STERLING LLC
[Print Name of Lender]
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Agent
12
Lenders
KZH WATERSIDE LLC
[Print Name of Lender]
By /s/ Xxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Agent
12
Lenders
Xxxxxx Brothers Bankhaus AG, London Branch
[Print Name of Lender]
By /s/ Xxxxxx Xxxxxx /s/ Xxxxxx Xxxxxxx
------------------ --------------------
Name: Xxxxxx Xxxxxx/Xxxxxx Xxxxxxx
Title: Authorized Signatories
12
Lenders
Xxxxxx Commercial Paper Inc.
[Print Name of Lender]
By /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
12
Lenders
---------------------------------------------
Xxxxxx Xxxxxxx Prime Income Trust
By /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
12
Lenders
XXXXXX XXXXXXX EMERGING MARKETS INC.
[Print Name of Lender]
By /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: XXXXX X. XXXXXXXXX
Title: Vice President
12
Lenders
SALOMON BROTHERS HOLDING COMPANY INC.
By /s/ Xxxxx Xxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
12
Lenders
SCOTIABANK EUROPE PLC
[Print Name of Lender]
By /s/ X. X. Xxxxxxx
-----------------------------------------
Name: X. X. XXXXXXX
Title: DIRECTOR
12
Lenders
S.P. Offshore Limited
By /s/ Illegible
-----------------------------------------
Name: Illegible
Title: Illegible
12
Lenders
Silver Oak Capital, Llc
[Print Name of Lender]
By /s/ Illegible
-----------------------------------------
Name: Illegible
Title: Managing Director
12
Lenders
---------------------------------------------
Smoky River CDO, L.P.,
By RBC Leveraged Capital as Portfolio Advisor
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
12
Lenders
UBS AG, Stamford Branch
By: UBS Warburg LLC, as agent
[Print Name of Lender]
By /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Associate Director
Banking Products Services, US
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
Director
Banking Products Services, US
12
Lenders
WINGED FOOT FUNDING TRUST
[Print Name of Lender]
By /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: XXX X. XXXXXX
Title: AUTHORIZED AGENT
Exhibit A
AGREEMENT
This Agreement is made on 30 September 2002.
Between
Inci Holding ___________________________________________________________________
________________________________________________________________ in the Republic
of Turkey;
And
CEAC Compagnie Europaenne d'Accumu_________ S.A. in France ("CEAC");
The parties have mutually agreed that an arrangement should be made in the
content and for a period specified hereof.
It is agreed:
1. DEFINITIONS AND INTERPRETATION
Definitions: In this Agreement, except where the context otherwise requires:
Agreement shall mean this present agreement.
Articles of Association means the articles of association (Ane Soziesme) of the
Company.
Current Agreements shall mean the Shareholders Agreement, Articles of
Association, Share Purchase Agreement and Technical Assistance and License
Agreement;
Equal Share Interest means the shareholding composition between Inci
Shareholders and CEAC that ownership rights by Inci shareholders and CEAC in the
Company that are equal to each other (e.g. 50% + 50% as of the date of this
Agreement, or may be on a lesser ratio in accordance with Clause 8 (Equity Sale
to a Third Party));
EURO or E means lawful currency of the European Union
Event of Default means any of the events mentioned in Clause 9;
Option Right means the right granted to CEAC until 30 September 2004 to
reinstate the Equal Share Interest as explained in clause 7.1 hereof.
Party, Parties means, at any time, a party or both parties, as the case may be,
to this Agreement at such time;
Private Equity Investor(s) mean one or more legal entity or individual investor
that invests in ordinary shares of the Company in accordance with clause 8
hereof.
Shareholders Agreement means the agreement by and between Inci Holding _________
________________________________________________________________________________
_______________________________________________ and CEAC dated 30 November 1993.
1
Share Purchase Agreement (means the agreement by and between Cevdet Inci.
_______ Inci, Xxxx Xxxx ________________________________________________________
________________________________________________________________________________
(collectively "Sellers") and CEAC dated 30 November 1993 with regard to sale of
shares in Inci ____________ by Sellers in part to CEAC.)
Technical Assistance and License Agreement means the agreement by and between
CEAC and Inci _____________________ dated 30 November 1993 with regard to
Product Know-How, Process Know-How and Up-Dating information as defined
therein.
Third Party(ies) means one or more legal entity or individual Investor that
Invests in ordinary shares of the Company in accordance with Clause 8.1 and
Clause 8.2 hereof.
__ means lawful currency of the Republic of Turkey
USD means lawful currency of the United States of America
2. PURPOSE
The purpose of this Agreement is to define:
(i) The purchase price per share;
(ii) The capital increase in the Company;
(iii) The common management after the capital increase; and
(iv) The option of CEAC for the _____________ of equal Share interest.
3. [NOT USED]
4. CAPITAL INCREASE WITH SHARE PREMIUM
4.1 Current Capital: The share capital of the company is TL 650,000,000,000 as
of the date of the Agreement, which Party holding an equal share interest
of TL 323,000,000,000.
4.2 Capital Increase: The Parties have agreed that the capital of the Company
shall be increased with a share premium by _______________ equivalent of
USD 2,800,000 that is approximately 30% of the equity value of the company
that is equal to the enterprise value _____ not debts of the company as of
the date of this Agreement. The agreed ____________ of USD 2,800,000 is
approximately equal to TL 4,800,000,000 and that will _____________________
by Inci Shareholders and will be booked as follows.
4.3 Agreement of Shareholders: The Parties have agreed that CEAC will not
participate in the capital increase and it will maintain its share interest
of the current ____________ capital of TL 325,800,000,000 to remain
unchanged. Only Inci Shareholders, however, shall __________ to the capital
Increase with a share premium TL 4,800,000,000,000 CEAC shall vote in
General Assembly and shall cause the members of the Board of Directors
that it has nominated, to vote in favor of the capital increase be
____________ herein.
The Parties have further agreed (i) that the registered capital of the
company shall be TL 1,625,000,000,000 by an increase of TL 975,000,000,000;
and (ii) that
2
CEAC shall not participate in the capital increase; and (iii) that the
increase of TL 975,000,000,000 of TL 4,500,000,000,000 shall be paid solely
by Inci Shareholders as registered capital contribution; and (iv) that the
remaining amount of TL 3,625,000,000,000 of TL 4,500,000,000,000
representing the share premium shall be _______ as reserve.
After this transaction, the share in ________ of Inci. Shareholders shall
increase from TL 325,000,000,000 to 1,300,000,000,000 and their share
interest will increase to 80% and CEAC, by keeping the current registered
capital to TL 325,000,000,000, will reduce its share interest to 20%.
4.4 Entry in Books: The participiation to the capital increase with share
premium of TL 4,600,000,000,000 shall actually be made by Inci Shareholders
and with the purpose of the parties to adapt a share composition of 80% by
Inci and 20% by CEAC. The participation shall be entered into the books of
the Company through the following two method. This agreed entry into the
books of the Company should be made in the sole interest of CEAC;
otherwise. CEAC's share interest in the Company will become _________
CEAC's current registered capital of TL 325,000,000,000 will remain
unchanged; however, by maintaining the current registered capital its share
interest will reduce to 20% after the capital increase
The increase of capital of TL 975,000,000,000 by Inci Shareholders shall be
entered into the books of the Company as the registered capital, and its
share interest will increase to 80% after the capital increase.
The remaining TL 3,625,000,000,000 of TL 4,600,000,000,000 shall be entered
into the books of the Company as share premium (_________ print) that will
be _______ as reserve therein.
Although TL 9,625,000,000,000 shall be included into the profit of the
Company as share premium (emiyson print) will be excluded from corporate
tax and withholding on income tax. ___ _____ shall be the equity of the
Company and shall be kept ___ reserves in the ______ of the Company and
cannot be distributed to shareholders.
5. BOARD OF DIRECTORS
As set forth in Annex A (________ to the Shareholders Agreeement) and Annex
B (Amendments to the Articles of Association) thereof, each being an integral
part of this Agreement.
6. AMENDMENTS AND COMMON MANAGEMENT
The parties have agreed to maintain the common mangement by granting
minority rights to CEAC as explained below. The Parties, however, recognize and
accept that some amendments pursuant to 80% plus 20% share composition shall be
made in the Current Agreements between Inci Shareholders and CEAC.
6.1 Amendment and Revision
3
6.1.1 The Shareholders Agreement and the Article of Association shall be
amended as described in Annex A and Annex B thereof, respectively.
Provided that B Shareholders under the Option Right on or before 30
September 2004, both the Shareholders Agreement and the Articles of
Association will be reinstated.
If B Shareholder, however, does not use its Option Right on or before 30
September 2004, the Shareholders Agreement shall be cancelled automatically
by virtue of the provision of the Clause 6.1.1 and the Articles of
Association will be amended as agreed in this Agreement. However, upon a
request by B Shareholder, the Parties will negotiate a new shareholders
agreement on the basis of a 80% shareholder interest by A Shareholder and
20% by B Shareholder, for the period ___ 01 July to 30 September 2004. If
parties agree on a new shareholders agreement, the Shareholders Agreement
will be replaced by such new shareholders agreement and the Articles of
Association will be amended accordingly. If the Parties cannot reach an
agreement on the new shareholders agreement, the Shareholders Agreement
shall be cancelled automatically by virtue of the provision of this Clause
6.1.1 and the Articles of the Articles of Association will be amended as
agreed in this Agreement.
6.1.2 Provided that B Shareholder ___ its Option Right on or before 30
September 2004, the Share Purchase Agreement will remain unchanged.
If B Shareholder, however does not use its Option Right on or before 30
September 2004, the Share Purchase Agreement shall be cancelled
automatically by virtue of the provision of this Clause 6.1.2. However,
upon a request by B Shareholder, the parties may negotiate those provisions
of the Share Purchase Agreement that in the understanding of both Parties,
are relevant, for the period as from 01 July to 30 September 2004. If the
parties agree on new provisions, those provisions of the Share Purchase
Agreement will be replaced by such new shareholders agreement. If the
Parties cannot reach an agreement on such provisions the share Purchase
Agreement shall be cancelled automatically by virtue of the provision of
this Clause 6.1.1.
6.1.3 __________
6.2 _________ Management. ___________ as set forth in the Shareholders
Agreement and the Articles of Association, as amended hereof, can be taken
by the affirmative votes of at ________________ of the members including at
least one member nominated by the __________ Shareholders and one member
nominated by the Majority of B Shareholders.
If, for any reason whatsoever, ______ shall not use the option set forth in
Clause 7 hereof until 30 September 2004, ___________ of the Board of
Directors without any inspection shall be taken by the __________ votes of
simple majority who are present at that meeting. Any inference to Major
Decisions and qualified quorum for the meetings and resolutions of the
Board of Directors in the Shareholders Agreement and the Artiicled of
Association shall be cancelled. The Parties
4
covenant to and agree to have a General Meeting to amend the Articles of
Association and to vote affirmatively as agreed in this Agreement, if
required by law.
7. OPTION RIGHT TO CEAC
As set forth in Annex A and Annex B hereof.
7.1 The Parties agree and undertake that in the event CEAC exercises the Option
Right as set forth in Annex A and Annex B, Inci Shareholders shall enter
into an agreement to amend the Shareholders Agreement in the form it was
executed orginally on 30 November ___ under a shareholding structure
where Parties shall reinstate Equal Share, Invested in the Company. The
Parties further agree to amend the Articles of Association in accordance
with the contemplated amendment to the Shareholders Agreement to reinstate
Equal Share Interest between the Parties.
7.2 Upon using the Option Right, within thirty (30) days of the call notice-
with no extension in order to share the guarantee risks and obligations in
the form of mortgages, liens and other encumbrances and the loans by A
shareholders or their affiliates, B Shareholder will give guarantees equal
to the half (50%) of the guarantees given by A shareholders to any third
party, including financial entities such as banks, _________ companies
leasing companies etc and shall reimburse for and amount equal to the half
(50%) of the guarantees given by A shareholders or their affiliates to any
third party.
8. PERMITTED EQUITY SALE TO A THIRD PARTY
The Parties may invite a Private Equity Investor(s) to participate to the
Company. The Parties agree that the Private Equity Investors may acquire the
shares of the Company either (i) through the newly issued __________ a capital
increase or (ii) through the sale of the shares by the Shareholders.
If the private equity investor(s) shall acquire a share interest by way of
acquisition, the shareholders may sell some of their shares to private equity
Investor(s) on or before 30 September 2004. If the shareholders decide to sell
some of their shares to private equity investor(s) on or before 30 September
2004, the terms and conditions of the shareholders agreement (as amended hereof)
and the articles of association (as amended hereof) will be complied with: CEAC
will participate in negotiations with Private Equity Investor(s): Exclusively in
such an event, however CEAC may use its Option Right partially. Such partial use
of the option Right will be limited to 50% of the total shares that Private
Equity Investor(s) may acquire. However, CEAC shall sell all such partial shares
it may purchase from ___ Shareholders by using the Option Right partially to the
purchasing Private Equity Investor(s). However, using of the option right
partially, will be only applicable in the case that both parties agree that the
revenue from the such sales of shares is not going to be invested back in to the
company.
9. EVENT OF DEFAULT AND ACTIONS
9.1 Event of Default. Each of the following events (whether or not caused by a
reason outside the control of CEAC) shall constitute an Event of Default.
5
Breach of Obligations: CEAC fails to observe or perform any of its other
obligations and/or undertakings under the Agreement including compliance
with Clause 10 (Conditions)
Material adverse change any event or series of events occurs whether
related or not which could reasonably be expected to materially and
adversely affect the ability of CEAC to perform any of the obligations
under the Agreement including its bankruptcy.
Rapidations CEAC repurchates the Agreement
9.2 Actions of Event of Default: On the occurance of an Event of Default, Inci
Shareholders may, by notice to CEAC terminate this agreement and the
Shareholders Agreement in full or in part. Furthermore, if CEAC is
notified under this Agreement of the occurance of an Event of Default CEAC
will be deemed to have waived, unconditionaly and irrevocably, its right
under Clause 7 (Option Right to CEAC) hereof.
9.3 If Inci Shareholders default to transfer the shares when the Option Right
is exercised by CEAC, this default will be covered by existing default
clauses in the Current Agreements.
10. UNDERTAKING BY CEAC
CEAC undertakes to purchases and /or organize its affilates and/or sister
companies to purchase from the Company the following:
.. 50,000 units of the batteries that have already been ordered but not
delivered will be purchased in calender year 2002
.. 30,000 units of batteries that will be ordered and purchased in calendar
year 2003; and
.. 150,000 units of batteries that will be ordered and purchased for the term
as from 01 January 2004 until 30 September 2004,
at the price and on the sale terms and conditions applicable on 30 September
2002. The Company will deliver batteries within sixty (60) days from the date of
the order.
The Parties agree that CEAC could not be held liable for non-compliance with the
above undertaking if the Company fails to deliver the above-mentioned volumes
under the above-mentioned conditions.
11. GENERAL
11.1 Articles of Association: These provisions of the Article of Association
shall be amended in accordance with this Agreement, particularly as set
forth in Annex B hereof. The Parties covenant to and agree to have a
General Meeting to amend the Articles of Association and to _____ as agreed
in this Agreement, if required by law.
11.2 Shareholders Agreement: The Agreement replaces and cancels the provisions
of the Shareholders Agreement as agreed and amended hereof, particularly as
set forth in Annex A.
6
11.3 Notices. Notices and other communications required or permitted pursuant to
this Agreement shall be delivered in person or sent by telex, telecopy or
by registered or certified mail, postage prepaid addressed to:
In the cases of CEAC
Address: 5 a 7 __ __ __
92 636 _____________ Cedex
France
Tel: 00 (0) 0 00 00 00 00
Fax: 00 (0) 0 00 00 00 12
Attention: Monsieur le President
In the cases of Inci Shareholders
Address: Akcay Cad No. 64/2
35410 ____________
Izmir Turkey
Tel: 00 000 000 0000
Fax: 00 000 000 0000
Attention: Mustaffa Zolm
11.4 Conditions ________________
Any and all obligations of CEAC specified in this Agreement and the
amendment of Shareholders Agreement, including without limitation, to sell,
subscribe, purchase and pay for the shares are conditional upon
satisfaction of all the following conditions:
11.4.1 Authorizations, necessary for fulfilment of the obligations of the
Parties and to authorize the Parties to enter into this Agreement and
the amendment of Shareholders Agreement, shall have been obtained by
Inci Shareholders, CEAC and the Company, and
11.4.2 CEAC shall have received the original and notarized copy of a
certificate or letter from the General Directorate of Foreign
Investment of Turkey and, if required by law, the Turkish
Competition Authority, approving the sale, subscription and
acquisition by CEAC of the shares subject to sale and Option Right.
11.5 Counterparts: This Agreement is ________ in duplicate, each party shall
have an original but all of which together shall constitute one and the
same instrument.
11.6 Governing Law and Settlement of Disputes:
Article X.1 and X.2 of the Shareholders Agreement are incorporated _______
to this Agreement and the Amendment of Shareholders Agreement.
7
In witness whereof this Agreement has been duly executed by the parties hereto
on the day and year find above written.
Signed for and on behalf of Inci Shareholders
Inci Holding Illegible
--------------------------
_______ Inci Illegible
--------------------------
_______ Day Ti_____________ Illegible
--------------------------
Callcy Xxxxxx Xxxx Celik Sanayi vo Ticaret A.S. Illegible
--------------------------
Signed for and on behalf of CEAC Shareholders Illegible
--------------------------
Campagnis Europoenne d'Accumulateurs (CEAC) Illegible
--------------------------
8
Annex A
Amendment
To the Shareholders Agreement
1. # Capital Stock of the Company
This clause is replaced with the following:
II.1 The capital with share premium of the Company is increased to TL
4,600,000,000,000 as follows:
(a) The registered capital of the Company shall be TL 1,625,000,000,000 by an
increase of TL 975,000,000,000; B Shareholder shall not participate in the
capital increase, the increase of TL 975,000,000,000 of TL
4,600,000,000,000 shall be paid solely by Inci Shareholders as capital
contribution; and the remaining amount of TL 3,625,000,000,000 of TL
4,600,000,000,000 representing the share premium shall be treated as
reserve. After this transaction, the share interest of Inci Shareholders
shall increase from TL 325,000,000,000 to TL 1,300,000,000,000 and B
Shareholder shall continue to keep the current registered capital of TL
$325,000,000,000.
The participation to the capital increase with share premium of TL
4,600,000,000,000 by Inci Shareholders shall be entered into the books of
the Company as explained below for the reason to adapt a share composition
of 80% by Inci Shareholders and 20% by B Shareholder being in the sole
interest of B Shareholder; otherwise, B Shareholder's share interest in the
Company will become negligible. In the books of the Company; (a) B
Shareholder's current registered capital of TL 325,000,000,000 will remain
unchanged; however, by mentioning the current registered capital its share
interest will reduce to 20%; (b) the increase of capital of TL
975,000,000,000 by Inci Shareholders shall be entered into the books of the
Company as the registered capital and its share interest will increase to
80%; and (c) the remaining TL 3,625,000,000,000 of TL 4,600,000,000,000
shall be treated as share premium (emisyon primi) that will be entered as
reserve.
(b) The registered capital of the Company is increased to TL 1,625,000,000,000
by an increase of TL 975,000,000,000. After the increase, the capital of
the Company shall be divided into 16,250,000 registered shares each having
a nominal value of TL 100,000.
The shares of the Company are divided into two classes of shares, namely
Class A Shares and Class B Shares. Thirteen million (13,000,000) of the
shares of the Company, with a total nominal value of TL 1,300,000,000,000
are Class A Shares (the "A Shares") and three million two hundred fifty
thousand (3,250,000) of the shares of the Company, with a total nominal
value of TL 325,000,000,000 are Class B shares (the "B Shares"). After the
increase, the A Shares and B Shares shall be owned by the Shareholders in
the amount set forth below:
9
Inci Holding A Shares 9,579,000
Cevdat Inci A Shares 1,300,000
Cinex _____________________________ A Shares 2,120,000
_______________________________________ A Shares 1,000
Ticanet A.S.
CBAC Compagnie Europeenne____ d'Accumu_____ B Shares 3,250,000
(c) The remaining TL 3,625,000,000,000 of TL 4,600,000,000,000 is the share
premium (emisyon primi) that shall be included into the profit of the
Company and that shall be entered into the books of the Company as share
premium (emisyon primi) that will be treated as reserve therein and it
cannot be distributed to shareholders.
II.2 Option Right to B Shareholder.
(a) B Shareholder shall have an Option Right until 30 September 2004, to
reinstate the Equal Share interest. For the purpose of this Shareholders
Agreement, Equal Share Interest shall mean an equal share interest between
A Shareholders and B Shareholder (e.g. either a share composition of 50% +
50% of all the shares of the Company, being the current composition as of
the date of this amendment or any lesser but equal share composition
between A Shareholder and B Shareholder after the sale of some shares to
Third Party(ies) pursuant to Article 30 (A) of the Articles of
Association).
If B Shareholder decides to use the Option Right on or before 30 September
2004, this right can only be used on a ratio to provide Equal Share
Interest. In the event that B Shareholder wishes to exercise its Option
Right, it will serve on A Shareholders a notice (the "Call Notice")
requiring A Shareholders to sell such amount of the shares to reinstate
Equal Share Interest.
In such an event, in order to reinstate Equal Share Interest, B Shareholder
shall purchase only such amount of shares to enable B Shareholder to reach
50% of the total shares held by A Shareholder and B Shareholder at the
date of the Option Right. For example, at the date of the Call Notice, if
the share interest of B Shareholder was 20%, and A Shareholders' __%, B
Shareholder can only purchase shares representing 20%, so that parties will
reach an Equal Share Interest of 40% + 40%.
If B Shareholder uses its Option Right, for the purposes of this
Shareholders Agreement, the Parties have agreed that the value of each
share held by A Shareholders shall be USD 0.29 per share.
The purchase price shall be USD 0.29 per share plus an Interest charge of
[20]% (twenty per cent) per annum on pro rata basis as from 30 September
2002, until the payment date of the purchase by B Shareholder.
The Option Right may be exercised at once, Inci Shareholders hereby agree
and undertake that they shall take all steps necessary or desirable to
affect the transfer as soon as possible, but in any event within thirty
(30) days of the date of the Call Notice. Such thirty (30) day period shall
be subject to extension as may be necessary to receive any required
governmental approvals.
10
Upon using the option Right, within thirty (30) days of the Call Notice
with no extention. In order to share the guarantee risks and obligations in
the form of mortgages, liens and other encumbrances and the loans by A
Shareholders or their affiliates, B Shareholder will give guarantees equal
to the half(50%) of the guarantees given by A Shareholders to any third
party, including financial entities such as banks, factoring companies,
leasing companies, etc and shall reimburse for an amount equal to the
half(50%) of the guarantees given by A Shareholders or their affiliates to
any third party.
(b) Consequences of B Shareholder's not Using the Option Right; If however, B
Shareholder does not use the Option Right:
(i) The Shareholders Agreement shall be cancelled in its entirely
automatically as of the date. It is notified or deemed to be notified
or understood from the circumstances that B Shareholder does not use
its Option Right on or before 30 September 2004, the Shareholders
Agreement shall be cancelled automatically by virtue of the provision
of Clause 6.1.1 hereof and the Articles of Association will be amended
as agreed in this Agreement. However, upon a request by B Shareholder,
the Parties will negotiate a new shareholders agreement on the basis
of a 80% shareholding interest by A Shareholders and 20% by B
Shareholder, for the period as from 01 July to 30 September 2004. If
the parties agree on a new shareholders' agreement the Shareholders
Agreement will be replaced by such new shareholders agreement and the
Articles of Association will be amended accordingly. If the parties
cannot reach an agreement on the new shareholders agreement, the
Shareholders Agreement shall be cancelled automatically by virtue of
the provision of Clause 6.1.1 hereof and the Articles of the Articles
of Association will be amended as agreed in this agreement.
(ii) The Article of Association shall be amended by cancelling Articles 7
and 30(A) and unless otherwise agreed hereof, they shall be replaced
with the provisions of the Turkish Commercial Code, B Shareholder
shall vote in the General Assembly and shall cause the members of the
Board of Directors that it has nominated to vote in favor of the
replacement with the provisions of the Turkish Commercial Code as
stipulated herein.
(iii) A Shareholders and 8 shareholder shall be free to sell any of their
shares to any third party. If the Shareholders decide to sell some or
all of their shares to any third party the shareholders shall follow
the procedure set forth in Clause IV (Restrictions on Transfer by
Shareholders) of the Shareholders Agreement (as amended hereof) and
Article 30(C) (Restrictions on Transfer by Shareholders) of the
Articles of Association (as amended hereof)
2. IV Transfer of Shares
Clause IV will be amended as follows:
IV.1 Permitted Equity Sale to Third Party(ies)
11
(a) The Parties may one or more third party ("Third Party(ies)") to particate
to the Company. The Parties agree that the Third Party(ies) may acquire the
shares of the Company either through the newly issued shares after a
capital increase or through the sale of the shares by the Shareholders. In
this respect, the Shareholders may sell some of their shares to Third
Party(ies) on or before 30 September 2004. If the Shareholders decide to
sell some of their shares to Third Party(ies) on or before 30 September
2004, the Shareholders shall follow the procedure set forth in Article
30(C) (Restrictions on Transfer by Shareholders) of the Articles of
Association (the amended hereof) and Clause IV.2 (Restrictions on Transfer
by Shareholders) of the Shareholders Agreement (as amended hereof). The
Shareholders shall notify each other of their decision to sell the shares
to a third party to enable the other Shareholder to take part in the
negotiations with Third Party(ies).
B Shareholder will participate the whole negotiations with Third
Party(ies).
Exclusively in the event of sale to Third Party(ies), B Shareholder may use
its Option Right partially. However B Shareholder shall sell all such
partial shares it may purchase from A Shareholders by using its Option
Right partially to the purchasing Third Party(ies).
IV.2 Shares and Conditions for Transfer of Share
(a) No shareholder shall create, ___ assume or suffer to exist any lien upon or
with respect to any of its share without the prior written consent of each
of the other shareholders.
(b) The share certificates representing the shares shall all bear the Turkish
translation of the following legend.
" The transfer and/or ______________________ in any manner of the shares
represented by the share certificate are restricted by and subject to the
provisions of the Articles of Association of the Company, a copy of which
may be reviewed at the Companys headquarters during buisness hours."
(c) A transfer of shares may only occur in accordance with the provisions of
this Agreement and any other attempted transfer shall be void. This Clause
IV.2(c) shall be interpreted such that it is in compliance with the TCO.
(d) Any transfer of shares between the shareholders or between any shareholder,
if such shareholder is an individual shareholder, may be freely made.
Transfers pursuant to this Clause IV.2(d) are not subject to the provisions
of Clause IV.3. Notwithstanding anything to the contrary contained in this
Clause IV.2; any transfer of shares between the A Shareholders is subject
to the prior approval of the A Shareholders representing a majority of the
outstanding A shares.
(e) Any transfer shares hereunder shall take effect as of the date of such
transfer, provided that the transferee of such shares has previously become
a party to this Agreement and that all necessary consents to the Turkish
authorities have been obtained.
(f) The shareholders agree that they shall request their representatives on the
Board
12
of Directors to vote for the approval of the Board of Directors of any
transfer of shares executed in compliance with the terms of this Clause IV.
This Clause IV.2(f) shall be interpreted such that it is in compliance with
the TCC.
(d) The Board of Directors of the Company shall have the right to refuse to
register in the Company's share book the shares belonging to any person or
entity who owns such shares as a result of transfer not in conformity with
the provisions of this Clause IV.
IV.3 Restrictions on Transfer by Shareholders.
(a) If any shareholder (the "Offering Shareholder") resolves an offer to
purchase or makes an offer to sell (such other having been irrevocably
accepted by the offeree), any or all of the shares (the "Offered Shares")
such shareholder shall before selling the offered Shares offer to sell the
Offered Share for a purchase price equal to that of the offer made by it to
or received by its from a third party (the "Option Price") as follows:
(i) first to the non-offering shareholder if any, owning shares of the
same class to the Offering Shareholder and
(ii) second to the shareholder owning shares of the other class.
Each such offer shall be made by the Offering Shareholder delivering to all
other shareholders a written offer by ______ transmission setting forth the
price and other material terms and conditions of the proposed sale (the
"Offer Terms"), and including (i) the identity of the third party making or
receiving the offer and (ii) written evidence that such offer to buy or
sell, as the case may be is irrevocable and accepted by the offerrer
subject to this application of the provisions of this Clause IV.3, the
material terms thereof and a commitment by such third party that it will
fulfill the obligations of a shareholder owning the shares in question
hereunder and abide by the terms of the Articles of Association and this
Agreement if it acquires the Offered Shares.
(b) The non-offering shareholders owning shares in the class of the Offering
Shareholder shall have the right within 30 days after the written notice
specified above to elect to purchase all, but not less than all, of the
Offered shares at the Option Price and upon the Offer Terms by giving
notice to such effect within such 30 day period specifying the date for the
purchase not more than 15 days after the end of such 30 day period. If more
than one such shareholder elects to so purchase the Offered Shares each
such electing shareholder shall purchase a portion of the Offered Shares
equal to the result obtained by multiplying the number of the Offered
Shares by a fraction the numerator of which shall be the number of shares
held by each shareholder electing to purchase and the denominator of which
shall be the number of shares held by all such electing shareholders. If
such calculator does not result in a round number of Offered shares
attributable to the electing shareholders any Offered Share that is divided
among the electing shareholders shall be purchased in the following manner;
and or
(aa) If there are two or more electing shareholders, by the electing
shareholder that owns the greater number of shares; or
(bb) If the electing shareholders own the same number of shares by the
13
electing shareholder that is an individual; if all the electing
shareholders that own the same number of shares is an individual, by
the electing shareholder whose principal piece of business is located
the furthest most
(c) If the non-offering shareholders owning shares in the class of the Offering
Shareholder fail to elect the purchase the Offered Shares pursuant to
paragraph (b) above then the shareholder of the other class shall have the
right, within 30 days following the initial 30-day period, to elect to
purchase all, but not less than all, of the Offered Shares at the Option
Price and upon the Offer Terms by giving notice to such effect with such
subsequent 30-day period specifying a date for the purchase not more than
15 days after the end of such 30 day period. If more than one such
shareholder elects to so purchase, each such electing shareholder shall
purchase a portion of the Offered Shares equal to the result obtained by
multiplying the number of the Offered Shares by a fraction, the numerator
of which shall be the number of shares held by each shareholder electing to
purchase and the denominator of which shall be the number of shares held by
all such electing shareholder. If such calculation does not result in a
round number of Offered Shares attributable to the electing Shareholders,
any Offered Shares that is divided among the electing shareholders shall be
purchased in the following manner
(aa) If there are two or more electing shareholders by the electing
shareholder that owns the greater number of shares or
(bb) If the electing shareholders own the same number of shares, by the
electing shareholder that is an individual; if all the electing
shareholders that own the same number of shares are individuals by the
oldest individual electing shareholder; if none of the electing
shareholders that own the same number of shares is an individual, by
the electing shareholder whose principal piece of business is located
the furthest most.
(d) In the event that the shareholders electing to purchase the Offered Shares
pursuant to paragraph (b) or paragraph (c) above need an authorization from
any governmental authority prior to the purchase of the Offered Shares the
purchasing periods referred to above shall be extended as needed to obtain
such authorization or to appeal any adverse decision related to the
granting of such authorization until such time as no further appeal is
possible.
(e) If an Offering Shareholder makes an offer to sell the Offered Shares to the
other shareholders pursuant to Clause IV.3 (a) and the other shareholders
fail to purchase the Offered Shares pursuant to the respective option set
forth in such Section, then the Offering Shareholder shall be free to sell
the Offered Shares to the person or entity named in the notice at the price
and on terms not more beneficial to such person or entity than the Offer
Price and on the Offer terms within 90 days following the expiration of
such options. The Board of Directors of the Company shall authorize such
sale of shares as provided for in the Articles of Association. If the
proposed sale is not completed within such 90-day period that the rights of
the other shareholders under this Agreement with respect to the sale of the
Offered Shares shall be fully reserved and again exists if such offer had
never been made.
14
(f) Any Offering Shareholder shall deliver to the Company and to the other
shareholders such information relating to the third party referred to in
the first paragraph of Clause IV.3 (a) and its principal as such other
shareholders shall request.
3. V2. SHAREHOLDERS MEETING
Paragraph (c) of the clause V.2 of the Shareholders Agreement is amended as
follows:
(c) Quorum; Voting: except as otherwise mandatory under the Turkish Commercial
Law, the quorum for Shareholders Meetings shall consist of Shareholders
present or represented by proxy holding a majority of the Company's capital
and the number of votes required for decisions shall consist of
shareholders holding a majority of the votes present or represented by
proxy. However the following resolutions can only be taken if B Shareholder
votes in favour of such resolution:
(i) any increase of capital or reorganization of share capital;
(ii) amendments to Articles of Association;
(iii) section to render the Company insolvent or bankrupt, reorganization;
(iv) merger or consolidation or any other manner of reorganization or
purchase of the capital stock or equity interest or substantial part
of the asset of another company;
(v) payment of dividends.
Each Share shall entitle its owner to one vote.
(a) If, for only reason whatsoever, B Shareholder shall not use its Option
Right set forth in Clause II.2 hereof until 30 September 2004, except any
revision is made pursuant to Article 6.1, hereof, the paragraphs (c) of
this Clause shall automatically become void and this paragraph shall be
replaced with the respective provisions of the Turkish Commercial Code
simultaneously as of 30 September 2004 without need to any further
ceremony;
4. V3 BOARD OF DIRECTORS
Clause V.3 of the Shareholders Agreement is amended as follows:
(a) The Company shall be governed by a Board of Directors consisting of eight
(8) members, Five (5) members of the Board of Directors shall be elected
from among persons nominated by the Majority A Shareholders. Three (3)
members of the Board of Directors shall be elected from among persons
nominated by the Majority B Shareholders.
The Shareholders agree that the Majority A Shareholders shall have the
right to appoint the Chairman and the Majority B Shareholders shall have
the right to appoint the Vice-Chairman.
15
(b) Remains unchanged.
(c) The administration and representation of the Company shall be within the
exclusive authority of the Board of Directors. The following acts,
expenditures, decisions or obligations made or incurred by the Board of
Directors are the major decisions (the "Major Decisions") and the Major
Decisions can only be taken by the affirmative vote of at least four
members, including at least one member nominated by the Majority B
Shareholders.
(i) decision to propose to the Shareholders Meeting a capital increase or
decrease, a regrouping or splitting of the shares, or an issuance of any
securities giving the right, or which could give the right, to a share
representing a portion of the share capital, as well as the decision to
apply an authorization of the Shareholders Meeting to proceed with a
capital increase or with the issuance of securities which could in the
future result in a capital increase.
(ii) decision to submit to the Shareholders Meeting any modification of the
Articles of Association;
(iii) approval of the Company's annual and long-term budgets and Business
Plan any amendments thereto;
(iv) approval of managerial and administrative organization of the Company
and of modification thereto;
(v) appointment or dismissal and determination of the duties and
responsibilities of the Company's General Manager, Chief Financial Officer,
Technical manager and key officers;
(vi) disposal of the fixed and tangible assets of the Company if the total
value of assets disposed of in each such disposal or a series of related
disposals exceeds EURO 2,000,000 or its equivalent in any currency.
(vii) approval of contracts to be entered into with the Shareholders and/or
their affiliates or relatives;
(viii) entry into any agreement of an unusual nature or for a period of
more than three years, or which does not come within the normal scope of
the activities of the Company, or in which the commitment of the Company
would exceed EURO 2,000,000 over the course of one calender year;
(ix) appointment or dismissal of external auditors;
(x) adoption of any merger, split or partial merger project; Investment in
any grouping. In any company as a jointly and severally liable partner,
joint venture or compensation agreement in any form whatsoever;
(xi) entry into or modification of any employment, service or consultancy
contract wherein the commitment of the Company would exceed EURO 500,000 or
its equivalent in any currency;
16
(xiv) other than those payments required to be made by applicable laws,
granting of a person, of any indemnity whatsoever (with the exception of
reimbursement of expenses) or of a retirement plan for an officer or
employee of the Company wherein the commitment of the Company would
globally exceed EURO 500,000 or its equivalent in any currency;
(xii) decision to request the opening of a procedure for the liquidation of
the assets of the Company; decision to propose to the Shareholders Meeting
the dissolution of the Company, for any reason whatsoever;
(xiv) any important decision relating to an unusual nature and on
environmental matters;
(xv) establishment of or participation in new companies and then
establishment, acquisition, transfer or dissolution of subsidiaries and
branches of the Company;
(xvi) sale (or the disposal under any form whatsoever) of any stock in a
company or any interest in a company or any grouping);
(xvii) closing of the annual accounts or legally permissible modification
of the accounting methods as they shall be applied by the Company on the
date hereof; and
(xviii) cancellation and renewal of the Technical Assistance and License
Agreement by and between CEAC and Inci ARO Sanayi Ve Ticaret A.S. dated 30
November 1993.
(d) The quorum for meeting of the Board of Meetings shall be the presence of
five (5) members of the Board of Directors. Except for the special quorum
for Major Decisions as set forth in (c) above all decisions of the Board of
Directors shall be taken by the affirmative votes of simple majority who
are present at the meeting.
(e) Remains unchanged.
(f) Remains unchanged.
(g) Remains unchanged.
(h) If, for any reason whatsoever, B Shareholder shall not use its Option Right
set forth in Clause 11.2 hereof until 30 September 2004, except any
revision is near pursuant to Article 6.1. hereof the paragraphs (c) and (d)
of this Clause shall automatically become void and these paragraphs shall
be replaced with the provisions of the Turkish Commercial Code
simultaneously as of 30 September 2004 without need to any further ceremony
and the paragraph (a) will be amended as follows:
The Company shall be governed by the Board of Directors consisting of eight
(8) members. Seven (7) members of the Board of Directors shall be elected
from among persons nominated by the Majority A Shareholders. One (1) member
of the Board of Directors shall be elected from among persons nominated by
the
17
Majority B Shareholders. All decisions of the Board of Directors without
any exception shall be taken by the affirmative votes of simple majority
who are present at that meeting.
The meetings of the Board of Directors will be held in English and the
resolutions will be written and kept in Turkish.
B Shareholders shall vote in the General Assembly and shall cause the
members of the Board of Directors that it has nominated, to vote in favor
of such amendment as stipulated herein.
5. MANAGEMENT
Second and third paragraphs of Clause V.4 (Management) are divided in their
entirety.
18
Annex B
Amendments to the Article of Associations of the Company
The Parties have agreed to amend the following Articles of the Articles of
Association as set forth below
1. Article 6 Capital
6.1 The capital of the Company with share premium is increased for TL
4,600,000,000,000 as follows.
(a) The registered capital of the Company shall be TL 1,626,000,000,000 by an
increase of TL 975,000,000,000; B Shareholder shall not participate in the
capital Increase; the increases of TL 975,000,000,000 of TL
4,800,000,000,000 shall be paid solely by A shareholders as capital
contribution; and the remaining amount of TL 3,625,000,000,000 of TL
4,600,000,000,000 representing the share premium shall be treated as
reserve. After this transaction, the share interest of A Shareholders shall
increase from TL 326,000,000,000 to 1,300,000,000,000 and B Shareholder
shall continue to keep the current registered capital of TL
375,000,000,000.
The participation to the capital increase with share premium of TL
4,600,000,000,000 by A Shareholder shall be entered into the books of the
Company as explained below for the reason to adapt a share composition of
80% by A Shareholders and 20% by B Shareholders that is in the sole
interest of B Shareholder; otherwise, B Shareholder's share interest in the
Company will become negligible. In the books of the Company (a) B
Shareholders current registered capital of TL 325,000,000,000 will remain
unchanged; however, by maintaining the current registered capital its share
interest will reduce to 20%; (b) the increase of capital of TL
975,000,000,000 by A Shareholders shall be entered into the books of the
Company as the registered capital and their share interest will increase to
80%; and to the remaining TL 3,625,000,000,000 of TL 4,600,000,000 shall be
issued as share premium (emisson primi) that will be anlysed in reserve
(b) The registered capital of the Company is increased to TL 1,625,000,000,000
by an increase of TL 975,000,000,000. After the increase; the capital
of the Company shall be divided into 16,250,000 registered shares each
having a nominal value of TL 100,000.
The shares of the Company are divided into two classes of shares, namely
Class A shares and Class B shares. Thirteen million (13,000,000) of the
shares of the Company with a total nominal value of TL 1,300,000,000,000
are Class A Shares (the "A Shares") and three million two hundred fifty
thousand (3,250,000) of the shares of the Company with a total nominal
value of TL 325,000,000,000 are Class B Shares( the "B Shares") After the
increase, the A Shares and B shares shall be owned by the Shareholders in
the among set forth below:
19
Inci Holding A Shares 9,579,000
Convert Inci A Shares 1,300,000
Cinex __ Tioarel vs Pozertains A. S. A Shares 2,120,000
Celtap Manfed Xxxx Ce___ ______ vs Ticaret A.S. A Shares 1,000
CEAC Compagnie Europeonne of Accumlateus S.A. B Shares 3,250,000
(c) The remaining TL 3,625,000,000,000 of TL 4,600,000,000,000 is the share
premium (emisyon print) that shall be included into the profit of the
Company and that shall be entered into the books of the Company as share
premium (emisyon print) that will be treated as receive therein and it
cannot be distributed to shareholders.
6.2 Option Right to B Shareholder:
6.2.1 Option Right: (a) B Shareholder shall have an Option Right until 30
September 2004 to _________ the Equal Share interest. For the purpose of
these articles of association. Equal Share Interest shall mean an equal
share interest between A Shareholder and B Shareholder (e.g. either a share
composition of 50% + 50% of all the shares of the company, being the
current composition as of the date of this amemdment or any lesser but
equal share composition between A Shareholders and B Shareholder offer the
sale of some shares to Third Party(ies) pursuant to Article 30(A) of these
articles of association
If B Shareholder decides to use the Option Right on or before 30 September
2004, this right can only be used on ______ to provide Equal Share
interest. In the event that B Shareholder. Wishes to exercise its Option
Right, it will serve on A Shareholders a notice (the "Call Notice")
requiring A Shareholders to sell such amount of the share to _________
Equal Share interest.
In such an event, in order to reinstate Equal Share interest, B Shareholder
shall purchase only such amount of shares to enable B Shareholder to reach
50% of the total shares held by A Shareholders and B Shareholder at the
date of the Option Right. For example, at the date of the Call Notice, if
the share Interest of B Shareholder was 20% and A Shareholders' 60% B
Shareholder can only purchase shares representng 20%, so that parties will
reach an Equal Share Interest of 40% + 40%.
If B Shareholder uses its Option Right, for the purposes of these articles
of association, the Parties have agreed that the value of each share held
by A Shareholders shall be USD 0.29 per share.
The purchase price shall be USD 0.29 per share plus an interest charge of
(20)% (twenty per cent) per annum on pro rata basis as from 30 September
2002 until this payment done of the purchases by B Shareholder.
The Option Right may be exercised at code. A Shareholders hereby agree and
undertake that they shall take all steps necessary or desirable to affect
the transfer as soon as possible, but in any event within thirty (30) days
of the date of the Call Notice. Such xxxxxx (30) day period shall be
subject to extension as may be necessary to receive any required
governmental approvals.
20
Upon using the Option Right, within xxxxxx (30) days of the Call Notice
with no extension in order to share the guarantee risks and obligations in
the form of mortgages, liens and other encumbrances and the loans by A
Shareholders or their affiliates, B Shareholder will give guarantees equal
to the half (50%) of the guarantees given by A Shareholders to any third
party, including financial entities such as banks, factoring companies
leasing companies, etc. and shall reimburse for an amount equal to the half
(50%) of the guarantees given by A Shareholders or their affiliates to any
third party.
6.2.2 Consequences of B Shareholder's not Using the Option Right:
If, however, B Shareholder does not used the Option Right:
(i) Unless otherwise agreed herein, the provision of the Articles of
Association shall be replaced with the provision of the Turkish Commercial
Code, B Shareholder shall vote in the General Assembly and shall cause the
members of the Board of Directors that it has nominated, to vote in favour
of the replacement with the provisions of the Turkish Commercial Code as
stipulated herein.
However, upon a request by B Shareholder, the Parties will negotiate a new
shareholders agreement on the basis of a 80% shareholding interest by A
Shareholders and 20% by B Shareholder, for the period as from 01 July to 30
September 2004. If the Parties agree on a new shareholders agreement, the
Shareholders Agreement will be replaced by such new shareholders agreement
and the Articles of Association will be attended accordingly. If the
Parties cannot reach an agreement shall be cancelled automatically and the
provisions of the Articles of Association shall be replaced with the
provisions of the Turkish Commercial Code.
(ii) Articles 7 and 30(A) of the Articles of Association shall be cancelled and
unless otherwise agreed herein, they shall be replaced with the provision
of the Turkish Commercial Code B Shareholder shall vote in the General
Assembly and shall cause the members of the Board of Directors that it has
nominated, to vote in favour of the replacement with the provisions of the
Turkish Commercial Code as stipulated herein.
(iii) A Shareholders and B Shareholder shall be free to sell any of their shares
to any third party. If the Shareholders decide to sell some or all of their
shares to any third party, the Shareholders shall follow the procedure set
forth in Article 30 (C) (Restrictions on Transfer by Shareholders) of the
Articles of Assoication.
6.2.3 Permitted equity sale to Third Party(ies)
The Parties may invite a Private Equity investor(s) to paticipate to the
Company. The Parties agree that the Private Equity Investor(s) may acquire the
shares of the Company (i) through the newly issued shares after a capital
increase or (ii) through the sale of the shares by the Shareholders.
If the Private Equity Investor(s) shall acquire share interest by way of
acquisition, the Shareholders may sell some of their shares to Private Equity
Investor(s) on or before 30
21
September 2004. If the Shareholders decide to sell some of their shares to
Private Equity Investor(s) on or before 30 September 2004, the terms and
conditions of the Shareholders Agreement (as amended hereof and the Articles of
Association (as amended hereof) will be complied with B Shareholder will
participate in negotiations with Private Equity Investor(s).
Exclusively in such an event, however, B Shareholder may use its Option Right
partially. Such partial use of the Option Right will be limited to 50% of the
total shares that A Shareholders will sell to Private Equity Investor(s).
However, B Shareholder shall sell all such partial shares it may purchase from A
Shareholders by using its Option Right partially to the purchasing Private
Equity Investor(s). However, using of the Option Right partially will be only
applicable in the case that both parties agree that the revenue from the such
sales of shares shall not be injected back to the Company.
3. Article 7 Board of Directors
A. The Company shall be governed by a Board of Directors consisting of eight
(8) members. Five (5) members of the Board of Directors shall be elected
from among persons nominated by the Majority A Shareholders. Three (3)
member of the Board of Directors shall be elected from among persons
nominated by the Majority B Shareholders.
The Shareholders agree that the Majority A Shareholders shall have the
right to appoint the Chairman and the Majority B Shareholders shall have
the right to appoint the Vice-Chairman.
B. The administration and representation of the Company shall be exculsive
authority of the Board of Directors. The following acts, expenditure,
decision or obligations made or incurred by the Board of Directors are the
major decisions (the "Major Decisions") and the Major Decisions can be
taken by the affimative vote of at least four members, including at least
one member nominated by the Majority A Shareholders and one member
nominated by the Majority B Shareholders.
(a) decision to propose to the Shareholders Meeting a capital increase or
decrease, regrouping or splitting of that shares, or an issuance of any
securities giving the right of which could give the right ______ share
representing a portion of the share capital, as well as the decision to
apply an authorization of the Shareholders Meeting to proceed with a
capital increase or with the issuance of securities which could in the
future result in a capital increase.
(b) decision to submit to the Shareholders Meeting any modification of the
Articles of Association;
(c) approval of the Company's annual and long-term bugets and Business Plan any
amendments thereto;
(d) approval of managerial and administrative organization of the Company and
of modification thereto;
(e) appointment or dismmissal and determination of the duties and
responsibilities
22
of the Company's General Manager, Chief Financial Officer, Technical
manager and key officers;
(f) disposal of the fixed and tangible assets of the Company if the total value
of assets disposed of in each such disposal or a series of related
disposals exceeds EURO 5,000,000 or its equivalent in any currency;
(g) approval of contracts to be entered into with the Shareholders and/or their
affiliates or relatives;
(h) entry into any agreement of an unusual nature or for a period of more than
seven years, or which does not come within the normal scope of the
activities of the Company, or in which the commitment of the Company would
exceed EURO 2,000,000 over the course of one calender year;
(i) appointment or dismissal of external auditors;
(j) adoption of any merger, split or partial merger project; investment in any
grouping, to any company as a jointly and severally liable partner, joint
venture or cooperation agreement in any form whatsoever;
(k) entry into or modification of any employment, service or consultancy
contract whereto the commitment of the Company would exceed EURO 500,000 or
its equivalent in any currency;
(l) other than those payments required to be made by applicable laws, granting
of a pension, of any indemnity whatsoever (with the exception of
reimbursement of expenses) or of a retirement plan for an officer or
employee of the Company wherein the commitment of the Company would
globally exceed EURO 500,000 or its equivalent in any currency;
(m) decision to request the opening of a procedure for the liquidation of the
assets of the Company; decision to propose to the Shareholders Meeting the
dissolution of the Company, for any reason whatsoever;
(n) any important decision relating to an unusual nature and on environmental
matters;
(o) establishment of or participation in new companies and then establishment,
acquisition, transfer or dissolution of subsidiaries and branches of the
Company;
(p) sale (or the disposal under any form whatsoever) of any stock in accompany
or any interest in a company or any grouping);
(q) closing of the annual accounts or legally permissible modification of the
accounting methods as they shall be applied by the Company on the date
hereof; and
(r) cancellation and renewal of the Technical Assistance and License Agreement
by and between CEAC and Inci ___. Sanayi ve Ticaret A.S. dated 30 November
1993.
(C) The quorum for meetings of the Board of Meetings shall be the presence of
23
five (5) members of the Board of Directors. Except for the special quorum
for Major Decisions as set forth in (B) above, all decisions of the Board
of Directors shall be taken by the affirmative votes of simple majority who
are present at that meeting.
(D) If, for any reason whatsoever, B Shareholder shall not use their option
set forth in Article 8.2 hereof until 30 September 2004, the paragraphs (B)
and (C) of this Article shall become void and these paragraphs shall be
replaced with the provisions of the Turkish Commercial Code simultaneously
as of 30 September 2004 and paragraph (A) will be amended to read as "The
Company shall be governed by a Board of Directors consisting of eight (8)
members. Seven (7) members of the Board of Directors shall be elected from
among persons nominated by the Majority A Shareholders and one (1) member
of the Board of Directors shall be elected from among persons nominated by
the Majority B Shareholders. All decisions of the Board of Directors
without any exception shall be taken by the affirmative votes of simple
majority who are present at that meeting."
B Shareholder shall vote in the General Assembly and shall cause the
members of the Board of Directors that he has nominated; to vote in favor
of such amendment is stipulated herein.
6. Article 10 Voting
Except as otherwise mandatory under the Turkish Commercial Law, the quorum for
decisions shall consist of shareholders holding a majority of the votes present
or represented by proxy. However, the following resolutions can only be taken if
B Shareholder voted in favour of such resolutions:
(i) any increase of capital or reorganization of share capital;
(ii) amendments to Articles of Association;
(iii) action to rendor the Company insolvent or bankrupt, reorganization;
(iv) merger or consolidation or any other manner of reorganization or purchase
of the capital stock or equity interest or substantial part of the asset of
another company;
(v) payment of dividends.
Each Share shall entitle its owner to one vote.
If, for any reason whatsoever, B Shareholders shall not use its Option Right set
forth in Clause 8.2 hereof, until 30 September 2004, the paragraphs (c) of this
article shall become void and this paragraph shall be registered with the
respective provisions of the Turkish Commercial Code simultaneously as of 30
September 2004 without need to any further ceremony.
Second paragraph remains unchanged.
24
4. Article 28 Reserve Funds.
New paragraph: Upon the contribution by A Shareholders of TL 4,600,000,000,000,
after entering TL 975,000,000,000 as the registered share, the remaining TL
3,625,000,000,000 of TL 4,600,000,000,000 shall be entered into the books of The
Company as share premium (_______ primi) that will be treated as reserve in the
books of The Company and it cannot be distributed to shareholders.
5. Article 30 Transfer of Shares
Article 30 is amended as follows:
A. Permitted Equity Sale to Third Party(ies)
Third Party(ies) may acquire the shares of the Company either through the
newly issued shares after a capital increase or through the sale of the
shares by the Shareholders. In this respect, the Shareholders may sell some
of their shares to Third Party(ies) in accordance with Article 30 (C)
(Restrictions on Transfer by Shareholders) of the Articles of Association.
B. Shares and Conditions for Transfer of Shares:
(a) No shareholder shall create, incur, assume or suffer to exist any lien upon
or with respect to any of its shares without the prior written consent of
each of the other shareholders.
(b) The share certificates representing the shares shall all bear the Turkish
translation of the following legend:
"The transfer and/or encumbrance in any manner of the shares represented by
this share certificates are restricted by and subject to the provisions of
the Articles of Association of the Company, a copy of which may be reviewed
at the Company's headquarters during business hours."
(c) A transfer of shares may only occur in accordance with the provisions of
this Articles of Association, and any other attempted transfer shall be
void. This article 30.D (c) shall be interpreted such that it is in
compliance with the TCC.
(d) Any transfer of shares between the shareholders or between any shareholder,
if such shareholder is an individual shareholder, may be freely made.
Transfers pursuant to this Article 80.B (d) are not subject to the
provisions of Article 30.C. Notwithstanding anything to the contrary
contained in this Article 30.B, any transfer of shares between the A
Shareholders is subject to the prior approval of the A Shareholders
representing a majority of the outstanding A Shares.
(e) Any transfer of shares hereunder shall take effect as of the date of such
transfer, provided that the transferee of such shares has previously become
a party to this Articles of Association and that all necessary consents of
the Turkish authorities have been obtained.
(f) The shareholders agree that they shall request their representatives on the
Board
25
of Directors to vote for the approval of the Board of Directors of any
transfer of shares executed in compliance with the terms of this Article
30. This Article 30.B (f) shall be interpreted such that it is in
compliance with the TCC.
(g) The Board of Directors of the Company shall have the right to refuse to
register in the Company's share book the shares belonging to any person or
entity who owns such shares as a result of transfer not in conformity with
the provisions of the Article 30.
C. Restriction on Transfer by Shareholders
(a) If any shareholder (the Offering Shareholder) receives an offer to purchase
or notice an offer to sell (such offer having been irrevocably accepted by
the offeree), any or all of its shares (the "Offered Shares") such
shareholder shall, before selling the Offered Shares, offer to sell the
Offered Shares for a purchase price equal to that of the offer made by it
to or received by its from a third party (the "Option Price") as follows:
(aa) first, to the non-offering shareholder, if any, owning shares of the
same class as the offering shareholder; and
(bb) second, to the shareholders owning shares of the other class.
Each such offer shall be made by the Offering Shareholder delivering to all
other shareholders a written offer by facsmille transmission setting forth
the price and other material terms and conditions of the proposed sale (the
"Offer Terms" and including (i) the identity of the third party making or
receiving the offer and (ii) within evidence that such offer to buy or sell
at the case may be, is irrevocable and accepted by the offered subject to
the application of the provisions of this Article 30 C, the material terms
thereof and in commitment by such third party that it will fulfill the
obligations of a shareholder owning the shares in question hereunder and
abide by the terms of this Articles of Association if it acquires the
Offered Shares.
(b) The non-offering shareholders owning shares in the class of the Offering
Shareholder shall have the right within 30 days after the written notice
specified above to elect to purchase all, but not less than all of the
Offered Shares at the Option Price and upon the Offer Terms by giving
notice to such effect within such 30-day period, specifying a date for the
purchase not more than 15 days after the end of such 30-day period. If more
than one such shareholder elects to so purchase the Offered shares, each
such electing shareholder shall purchase a portion of the Offered Shares
equal to the result obtained by multiplying the number of the Offered
Shares by a fraction, the numerator of which shall be the number of shares
held by each shareholder electing to purchase and the denominator of which
shall be the number of shares held by all such electing shareholders; if
such calculation does not result in a round number of Offered Shares
attributable to the electing shareholders, any Offered Share that is
divided among this electing shareholders shall be purchased in the
following manner:
(aa) If there are two or more electing shareholders, by the electing
shareholder that owns the greater number of shares; or
(bb) if the electing shareholders own the same number of shares by the
26
electing shareholder that is an individual; if all the electing
shareholders that own the same number of shares is an individual, by
the electing shareholder whose principal place of business is located
the farthest most.
(c) If the non-offering shareholder owning shares in the class of the Offering
Shareholder fall to elect the purchases the Offered Shares pursuant to
paragraph (b) above, then the shareholder of the other class shall have the
right, within 30 days following the initial 30-day period, to elect to
purchase all, but not less than all, of the Offered Shares at the Option
Price and upon the Offer Terms by giving notice to such effect with such
subsequent 30-day period, specifying a date for the purchase not more than
15 days after the end of such 30-day period. If more than one such
shareholder elects to __ purchase, each such electing shareholder shall
purchase a portion of the Offered Shares equal to the result obtained by
multiplying the number of the offered shares by a fraction, the numerator
of which shall be the number of shares held by each shareholder electing to
purchase and the denominator of which shall be the number of shares held by
all such electing shareholder. If such calculation does not result in a
round number of Offered Shares attributable to the electing Shareholders,
any Offered Share that is divided among the electing shareholders shall be
purchased in the following manner.
(aa) If there are two or more electing shareholders, by the electing
shareholder that owns the greater number of shares; or
(bb) If the electing shareholders own the same number of shares, by the
electing shareholder that is an individual; if all the electing
shareholders that own the same number of shares are individuals, by
the oldest individual electing shareholder, If none of the electing
shareholders that own the same number of shares is an individual, by
the electing shareholder whose principal place of business is located
the farthest most.
(d) In the event that the shareholders electing to purchase the Offered Shares
pursuant to paragraph (b) or paragraph (c) above need an authorization from
any governmental authority prior to the purchase of the Offered Shares, the
purchasing periods referred to above shall be extended as needed to obtain
such authorization or to appeal any adverse decision related to the
granting of such authorization until such time as no further appeal is
possible.
(e) If an Offering Shareholder makes an offer to sell the Offered Shares to the
other shareholders pursuant to Article 30.C (a)and the other shareholders
fail to purchase the Offered Shares pursuant to the respective options set
forth in such Section, then the Offering shareholder shall be free to sell
the Offered Shares to the person or entity named in its notice at the price
and on terms not more beneficial to such person or entity than the Offer
Price and on the Offer terms within 90 days following the ______________ of
such options. The Board of Directors of the Company shall authorize such
sale of shares as provided for in the Articles of Association. If the
proposed sale is not completed within such 90-day period, that the rights
of the other shareholders under this Articles of Association with respect
to the sale of the Offered Shares shall be fully restored and again exists
if such offer had never been made.
27
(i) Any Offering Shareholder shall deliver to the Company and to the other
shareholders such information relating to the third party referred to in
the first paragraph of Article 30.C(a) and its principal as such other
shareholders shall request.
28
