Exhibit F
---------
AMENDMENT NO.1 TO THE AGREEMENT DATED JULY 8, 2000
BETWEEN:
Mevra Beheer BV, a company organised under the laws of the Netherlands, having
its registered office at 3439 MG Xxxxxxxxxx, Xxxxxxxxxxx, 0-0, Xxxxxxxxxxx,
registered at Registry of Commerce under number 30127674, represented by Xx.
Xxxxxx Xxxxxxxxxx, its chairman, and by Xx. Xxxx Xxxxxxxxxx, its director, duly
empowered,
(hereafter the "Promissor")
OF THE FIRST PART,
Protection Participation, a French societe civile having its registered office
at Z.I Xxxxx Xxxx XX, 00 xxx xx xx Xxxxxxx, 00000 Xxxxxxxx-xx-Xxxxxx, registered
at the commercial companies registry of Bobigny under number D 432 081 503,
represented by Mr. Philippe Bacou, its gerant, duly empowered,
(hereafter the "First Beneficiary"),
Hobar Corporation NV, a company organised under the laws of The Netherlands
Antilles established at Curacao, Caracasbaaiveg 201, registered at the Chamber
of Commerce of Curacao under number 60551, represented by its General Manager
CTF Corporation NV, itself represented by Mr. Philip Willem van der Heijden,
(hereafter the "Second Beneficiary"),
Sauvegarde LLC, a Delaware limited liability company, having its offices at 0000
Xxxxx Xxxxxx Xxxx, Xxxx Xxxx Xxxxx, Xxxxxxx, XXX, represented by Xx. Xxxxxx
Xxxxxx, duly empowered,
(hereafter, the "Third Beneficiary"),
The First Beneficiary, Second Beneficiary and Third Beneficiary acting severally
and not jointly and hereafter together referred to as the "Beneficiaries".
OF THE SECOND PART,
AND
Xxxxxxxxxx International NV, a company organised under the laws of Belgium,
having its registered office at Xxxxxxxxxxxxxx, 000, X-0000, Xxxxxxxx, Xxxxxxx,
registered at the Registry of Commerce of Antwerp under number n(degree) 322
211, represented by Xx. Xxxxxx Xxxxxxxxxx, duly empowered,
(hereafter referred to as the "Guarantor")
OF THE THIRD PART.
WHEREAS:
On July 8, 2000 the Promissor, the Beneficiaries and the Guarantor
have entered into an agreement (the "Agreement") whereas, subject to the terms
and conditions set forth therein, the Promissor granted to the Beneficiaries an
option to purchase 470,953 shares in the company Bacou SA, a French societe
anonyme registered under number 348 982 307 RCS Romans.
On September 1, 2000 the Beneficiaries exercised the option to
purchase granted to them under the Agreement and acquired 470,953 shares of
Bacou SA.
On March 26, 2001 the Second Beneficiary notified the extension in
accordance with Section 2 of the Agreement.
Following an active bid process and in relation to the results
thereof, of which the parties have been fully informed, the parties have agreed
to amend the Agreement.
IT IS NOW HEREBY AGREED AS FOLLOWS:
1. All terms commencing with a capital letter will have the meaning ascribed
to them in the Agreement, unless otherwise defined herein.
"Transfer of control of the Company" shall mean the direct or indirect
transfer to one or more third party buyers (of which the Beneficiaries and
the existing direct or indirect shareholders of the Company may be
shareholders), in one or more step transactions, of the direct or indirect
control over more than 80% of the shares of the Company.
2. The Second whereas clause of the Agreement is deleted in its entirety and
replaced by the following terms:
"The Promissor is prepared to grant to the Beneficiaries an irrevocable
-2-
option to purchase all, but not part of the Shares, and the Beneficiaries
are prepared to accept the grant of such option on the terms and conditions
set forth herein."
3. Article 1.2(e) of the Agreement is deleted and replaced by the following
provision:
"(e) As from the Exercise Date, the Beneficiaries shall place the Shares in
escrow in accordance with Article 5 below, the First Block of Shares
(as defined hereinafter) to be held in escrow until the Closing of the
First Block (as defined hereinafter) and the Second Block of Shares
(as defined hereinafter) to be held in escrow until the Transfer of
Control of the Company or the Date of Termination of the Second Block
(as defined hereinafter)."
4. Article 1.3 of the Agreement is deleted and replaced by the following
provision :
"(a) The purchase price for 34,249 Shares (the "First Block of Shares") is
fifty five million French Francs (FRF 55,000,000) plus interest
determined in accordance with Article 1.3(c) below (the "Price of the
First Block of Shares"). The First Block of Shares is allocated as
follows among the Beneficiaries: First Beneficiary: 6,851 Shares;
Second Beneficiary: 13,699 Shares; Third Beneficiary: 13,699 Shares.
The purchase price of 436,704 shares (the "Second Block of Shares") is
seven hundred eighty eight million and one hundred eighty five
thousand two hundred and fourteen French Francs (FRF 788,185,214) plus
interest determined in accordance with Article 1.3(d) below (the
"Price of the Second Block of Shares").
(b) The Price of the First Block of Shares shall be paid to the Promissor
as follows:
At the Closing of the First Block (i) the First Beneficiary shall pay
by wire transfer to the Promissor bank account, as shall be notified
by the Promissor, the amount of twenty percent (20%) of the Price of
the First Block of Shares, (ii) the Second Beneficiary shall pay by
wire transfer to the Promissor bank account, as shall be notified by
the Promissor, the amount of forty percent (40%) of the Price of the
First Block of Shares, and (iii) the Third Beneficiary shall pay by
wire transfer to the Promissor bank account, as shall be notified by
the Promissor, the amount of forty percent (40%) of the Price of the
First Block of Shares;
The Price of the Second Block of Shares shall be paid to the Promissor
as follows:
At the Closing of the Second Block, and subject to the reduction in
the Price of the Second Block of Shares set forth in Article 1.5, (i)
the First Beneficiary shall pay by wire transfer to the Promissor bank
account, as shall be notified by the Promissor, the amount of twenty
-3-
percent (20%) of the Price of the Second Block of Shares,(ii) the
Second Beneficiary shall pay an amount equal to forty percent (40%) of
the Price of the Second Block of Shares, the Second Beneficiary
effecting such payment by paying an amount of LUF 1,650,000,000 plus,
for the period between October 1, 2000 and the date of Closing of the
Second Block, interest calculated on three month Euribor plus one
percent (1%), interest being calculated on the effective number of
days elapsed, to Alesia S.A., a Luxembourg company, having its
registered office at Xxx Xxxxxxxxx 00, Xxxxxxxxxx, by wire transfer to
Alesia S.A. bank account, as shall be notified by Alesia S.A., the
balance of the payment of the price to be paid by the Second
Beneficiary being paid to the Promissor by wire transfer to the
Promissor bank account, as shall be notified by the Promissor; such
payment stipulation in favour of Xxxxxx shall be construed as a
"stipulation pour autrui", accepted by Xxxxxx, it being specified for
the sake of clarity that the Second Beneficiary shall have no
obligation whatsoever to make any payment to Xxxxxx in the event the
Price of the Second Block of Shares is not due and payable, including
following termination of the purchase of the Second Block of Shares in
accordance with Article 3 below, and that the Second Beneficiary may
oppose to Xxxxxx all the exceptions that it may oppose to the
Promissor hereunder, and (iii) the Third Beneficiary shall pay by wire
transfer to the Promissor bank account, as shall be notified by the
Promissor, the amount of forty percent (40%) of the Price of the
Second Block of Shares;
(c) Interest at the Euribor rate (1 year) as shown on the Telerate screen
(currently page 248) under the aegis of the Banking Federation of the
European Union at approximately 11 a.m. (Brussels time) on December 1,
2000 plus a margin of 1% per annum shall accrue as from December 1,
2000 until the date of Closing of the First Block, on the amount of
fifty five million French Francs (FRF 55,000,000);
(d) Interest at the Euribor rate (1 year) as shown on the Telerate screen
(currently page 248) under the aegis of the Banking Federation of the
European Union at approximately 11 a.m. (Brussels time) on December 1,
2000, plus a margin of 1% per annum, shall accrue as from December 1,
2000 until the date of Closing of the Second Block on the amount of
seven hundred eighty eight million one hundred eighty five thousand
two hundred and fourteen French Francs (FRF 788,185,214) less the
Deposit (and as from its payment date, less the Additional Deposit),
such interest being calculated on the basis of the actual number of
days elapsed in a 365-day year."
5. Paragraphs (a), (b) and (c) of Article 1.4 of the Agreement are deleted and
replaced by the following provision:
"1.4 Supplementary Price
-4-
(a) In the event that the Closing of the Second Block occurs, then the
Price of the Second Block of Shares shall be increased by a
supplementary price (hereafter the "Supplementary Price") calculated
on the basis of the Bacou SA Value (as defined in paragraph (c)
hereafter), as follows:
(i) if the Bacou S.A Value is less than or equal to three billion one
hundred and fifty million French Francs (FRF 3,150,000,000),
then:
the Supplementary Price shall be zero.
(ii) If the Bacou S.A Value is greater than three billion one hundred
and fifty million French Francs (FRF 3,150,000,000), but less
than or equal to four billion French Francs (FRF 4,000,000,000),
then:
Supplementary Price = 85% [Bacou S.A. Value - (FRF
3,150,000,000)] x 38.08%.
(iii)If the Bacou S.A Value is greater than four billion French
Francs (FRF 4,000,000,000), then:
Supplementary Price = (FRF 275,128,000) + 90% [Bacou S.A. Value -
(FRF 4,000,000,000)] x 38.08%.
(b) The First Beneficiary shall pay to the Promissor twenty percent (20%)
of the Supplementary Price by the remittance to the Promissor of a
bank check on the date of receipt by the Beneficiaries of the total
payment of the definitive price for the Transfer of Control of the
Company in freely available funds, the Supplementary Price not bearing
interest.
The Second Beneficiary shall pay to the Promissor forty percent (40%)
of the Supplementary Price by the remittance to the Promissor of a
bank check on the date of receipt by the Beneficiaries of the total
payment of the definitive price for the Transfer of Control of the
Company in freely available funds, the Supplementary Price not bearing
interest.
The Third Beneficiary shall pay to the Promissor forty percent (40%)
of the Supplementary Price by the remittance to the Promissor of a
bank check on the date of receipt by the Beneficiaries of the total
payment of the definitive price for the Transfer of Control of the
Company in freely available funds, the Supplementary Price not bearing
interest.
(c) The Bacou SA Value (the "Bacou SA Value") shall equal the difference
between:
(a) the product of (i) the transfer price per share of the Company
-5-
(following adjustment, if necessary) paid to the shareholders of
the Company in the Transfer of Control of the Company and (ii)
the number of shares of the Company giving, at the date of
completion of the Transfer of Control of the Company, control of
all of the shares and the voting rights of the Company, and
(b) the sum of (x) all of the duly documented expenses relating to
the Transfer of Control of the Company, as reasonably (the term
"reasonably" being construed with reference to international
transactions of a similar scale and nature) incurred by all of
the transferors, direct or indirect shareholders of Bacou S.A.
and by Bacou USA Inc. (including the fees and expenses of
advisors, lawyers and investment banks) and (y) a fixed amount of
FRF 150,000,000 to account for bonus and incentive payments to
employees of Bacou SA and its subsidiaries.
In the event of payment by the third party buyer of all or part
of the transfer price in a currency other than French francs, the
applicable exchange rate shall be the Euro / currency exchange
rate published by the French central bank ("Banque de France") on
the date of Closing of the Second Block, as published in the
French "Journal Officiel".
In the event that all or part of the transfer price is paid in
listed securities, including stocks, bonds, financial instruments
or other securities (together the "Securities"), the Bacou S.A.
Value shall be the sum of cash consideration paid to
Beneficiaries for the Shares and of the aggregate proceeds from
the disposal by the Beneficiaries of the Securities, net of all
expenses reasonably (the term "reasonably" being construed with
reference to transactions of a similar scale and nature) incurred
by the Beneficiaries relating to such disposal (including in
relation to any mechanism entered into to protect against market
fluctuation), such sum to be divided by 0.3808, it being
specified that the Beneficiaries shall (i) dispose of the
Securities as soon as possible following the expiration of any
applicable lock-up period, (ii) protect as far as financially
reasonable the proceeds of the disposal of such Securities
against market fluctuations and (iii) only dispose of the
Securities on a stock exchange or in a private placement
transaction to an unrelated third party at an arm's length price,
either of which shall be in accordance with any applicable rules
and market practices. The Beneficiaries shall consult with the
Promissor in respect of their decisions regarding disposal of the
Securities.
The Beneficiaries agree to disclose to the Promissor all relevant
terms of the agreement with a third party buyer necessary to
assess the Bacou SA Value, the Promissor hereby agreeing to keep
such information confidential and to use it solely for the
purpose of the determination of the Bacou SA Value.
In the event of disagreement over the establishment of the Bacou
S.A
-6-
Value, the parties agree that all disputes shall be submitted to
an expert (hereafter referred to as the "Expert"). The parties
agree that the Expert shall be Xxxxxxxx Xxxxxx. However, if
Xxxxxxxx Xxxxxx is unable to act as Expert for any reason
whatsoever, the Expert shall be chosen by common accord of the
Beneficiaries and the Promissor, or in the event of failure
within the eight (8) days following the written demand of either
of the Beneficiaries or the Promissor to designate an Expert, by
an order from the President of the Tribunal de Commerce de Paris
presiding as in summary proceedings, from among the
internationally renowned accounting firms operating in France.
The Expert shall act as an independent expert with the mandate of
the parties in accordance with the terms of Article 1592 of the
Civil Code and his decisions shall be binding, except in the case
of manifest error. The Expert's function shall be limited to the
resolution of any disagreement as to the determination of the
Bacou S.A. Value by applying the principles set forth in this
Article 1.4 and the Expert shall notify his decision to the
Beneficiaries and the Promissor as soon as possible. The Expert's
fees shall be shared equally between the Beneficiaries, on the
one hand, and the Promissor, on the other hand."
6. In Paragraphs (ii) and (iii) of Article 1.5 of the Agreement, the term
"Closing" is replaced by "Closing of the Second Block". Paragraph (iv) of
Article 1.5 of the Agreement is deleted and replaced by the following
provisions:
(iv) In the event that the Closing of the Second Block does not take place
on or prior to March 31, 2001 and the Second Beneficiary elects to
extend the date for Closing of the Second Block to June 30, 2001
(which extension has been made), then in the event that the Closing of
the Second Block does not take place on or prior to June 30, 2001, the
Deposit shall be retained by the Promissor for the following purposes:
(a) If the Closing of the Second Block occurs on or prior to October
1, 2001, then the Promissor shall retain the Deposit and the
First Beneficiary Deposit shall be offset against the amount of
the Price payable by the First Beneficiary as set forth in
Article 1.3(b), the Second Beneficiary Deposit shall be offset
against the amount of the Price payable by the Second Beneficiary
as set forth in Article 1.3(b) and the Third Beneficiary Deposit
shall be offset against the amount of the Price payable by the
Third Beneficiary as set forth in Article 1.3(b).
(b) In the event that the Closing of the Second Block does not take
place on or prior to October 1, 2001 and the Second Beneficiary
and the Third Beneficiary do not jointly elect to extend the date
for Closing of the Second Block to December 31, 2001 or do not
pay the Additional Deposit (as defined hereafter), as set forth
in paragraph (iii) below, then the Deposit shall be retained by
the Promissor;
-7-
(v) In the event that the Closing of the Second Block does not take place
on or prior to October 1, 2001, the Second Beneficiary and the Third
Beneficiary may elect to extend the date for Closing to December 31,
2001, provided that on or prior to October 3, 2001, they jointly
notify the Promissor and the First Beneficiary of such election and on
or prior to October 3, 2001, the Second Beneficiary pays to the
Promissor the amount of eight million seven hundred and fifty thousand
French Francs (FRF 8,750,000) (the "Second Beneficiary Additional
Deposit") and on or prior to October 3, 2001, the Third Beneficiary
pays to the Promissor the amount of eight million seven hundred and
fifty thousand French Francs (FRF 8,750,000) (the "Third Beneficiary
Additional Deposit" and together with the Second Beneficiary
Additional Deposit, the "Additional Deposit"); then, if such election
and payment of the Additional Deposit are made as set forth above, (a)
in the event that the Closing of the Second Block does not take place
on or prior to December 31, 2001, then the Deposit and the Additional
Deposit shall be retained by the Promissor or (b) in the event that
the Closing of the Second Block takes place on or prior to December
31, 2001, then the Promissor shall retain the Deposit and the
Additional Deposit, and the First Beneficiary Deposit shall be offset
against the amount of the Price payable by the First Beneficiary set
forth in Article 1.3(b), the Second Beneficiary Deposit and the Second
Beneficiary Additional Deposit shall be offset against the amount of
the Price payable by the Second Beneficiary set forth in Article
1.3(b) and the Third Beneficiary Deposit and the Third Beneficiary
Additional Deposit shall be offset against the amount of the Price
payable by the Third Beneficiary set forth in Article 1.3(b)."
7. Article 2 of the Agreement is deleted and replaced by the following
provision:
"The Closing in respect of the First Block of Shares (the "Closing of
the First Block") shall occur on May 31, 2001, at the latest. At the
Closing of the First Block the Beneficiaries shall pay the Price of
the First Block of Shares in the manner set forth in Article 1.3(b).
The Closing in respect of the Second Block of Shares (the "Closing of
the Second Block") shall occur at a date determined by the
Beneficiaries on or within 5 days from the date of occurrence of the
Transfer of Control of the Company.
At the Closing of the Second Block, the Beneficiaries shall pay the
Price of the Second Block of Shares in the manner set forth in Article
1.3(b).
If no transfer of Control of the Company occurs, then any one of the
Beneficiaries shall notify the Promissor of the non-occurrence of the
Closing of the Second Block."
8. Article 3 of the Agreement is deleted and replaced by the following
provisions:
-8-
"In the event that either (a) the Closing of the Second Block does not
occur on October 1, 2001 at the latest and the Second Beneficiary and
the Third Beneficiary do not elect to extend the date for Closing of
the Second Block to December 31, 2001, as provided for in Article 1.5
above, or (b) the Closing of the Second Block does not occur on
December 31, 2001 at the latest, then the purchase by each Beneficiary
of the Shares of the Second Block of Shares purchased by such
Beneficiary following exercise of the Option in accordance with
Article 1.2 above, shall be automatically ("automatiquement et de
plein droit") terminated, such termination being effective, without
retroactive effect, in the event of (a) above on October 4, 2001 and
in the event of (b) above, on January 1, 2002 (each such date being
hereafter referred to as the "Date of Termination of the Second
Block").
The Beneficiaries and the Promissor agree that following such
termination, all Beneficiaries shall have, as their sole obligation
hereunder, to surrender on the Date of Termination of the Second
Block, all the Shares of the Second Block."
9. In Article 5 of the Agreement, the words "provided that the Shares shall be
automatically released from the Escrow Account at the Closing or on the
Date of Sale" are replaced by the following provision:
"provided that the Shares of the First Block of Shares shall be
automatically released from the Escrow Account at the Closing of the
First Block, and the Shares of the Second Block shall be automatically
released from the Escrow Account on the date of Transfer of Control of
the Company or on the Date of Termination of the Second Block".
10. In Sections (i) and (ii) of Article 6(a) of the Agreement, the term
"Closing" is replaced by "Closing of the Second Xxxxx".
00. In the fifth line of the first paragraph of Article 7 of the Agreement, the
terms "Closing" is replaced by "Closing of the First Block and of Closing
of the Second Block" and in the seventh line of the first paragraph of
Article 7 of the Agreement the term "Closing" is replaced by "Closing of
the First Block or the Closing of the Second Block".
12. The Promissor hereby represents that he is fully informed of the bid
process conducted in respect of the Company and of the current negotiation
taking place to effect a Transfer of Control of the Company and that he has
received copy of the letter of intent executed by the Beneficiaries dated
March 24, 2001.
13. This Amendment only amends and supersedes the Agreement to the extent that
it is expressly stated in this Amendment. This Amendment is not a novation
to the Agreement.
14. Any dispute arising out of or in relation to this Amendment shall be
exclusively brought before the competent French Courts.
-9-
15. This Amendment is governed by and construed in accordance with French law.
IN WITNESS WHEREOF the parties hereto have signed this agreement in
six originals, on April 24, 2001.
THE PROMISSOR:
/s/ Xxxxxx Xxxxxxxxxx
----------------
Name: Xx. Xxxxxx Xxxxxxxxxx
Title: Chairman
/s/ Xxxx Xxxxxxxxxx
----------------
Name: Xx. Xxxx Xxxxxxxxxx
Title: Director
THE FIRST BENEFICIARY:
/s/ Philippe Bacou
----------------
Name: Mr. Philippe Bacou
Title: Gerant
THE SECOND BENEFICIARY:
/s/ Philip Willem van der Xxxxxx
----------------
Name: Mr. Philip Willem van der Xxxxxx
duly authorized
THE THIRD BENEFICIARY:
/s/ Xxxxxx Xxxxxx
---------------------
Name: Xx. Xxxxxx Xxxxxx
duly authorized
-10-
THE GUARANTOR:
/s/ Xxxxxx Xxxxxxxxxx
----------------
Name: Xx. Xxxxxx Xxxxxxxxxx
duly empowered
-11-
