1
PURCHASE AND SALE AGREEMENT
AMONG
HERCULES INCORPORATED
HERCULES NEDERLAND B.V.
AND
GIVAUDAN-ROURE (INTERNATIONAL) SA
DATED AS OF FEBRUARY 4, 1997
2
Table of Contents
Page
----
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. DEFINITIONS AND INTERPRETATION. . . . . . . . . . . . . . 4
1.1 Capitalized Terms. . . . . . . . . . . . . . . . . . 4
1.1.1 Consolidated Subsidiaries. . . . . . . . . 4
1.1.2 Downward Adjustment. . . . . . . . . . . . 4
1.1.3 HNBV Tastemaker B.V. Interest. . . . . . . 5
1.1.4 Upward Adjustment. . . . . . . . . . . . . 5
1.1.5 Voting Agreement . . . . . . . . . . . . . 5
1.1.6 Wrap Agreement . . . . . . . . . . . . . . 5
1.2 Accounting Terms . . . . . . . . . . . . . . . . . . 5
1.3 Construction . . . . . . . . . . . . . . . . . . . . 5
1.4 Captions and Headings. . . . . . . . . . . . . . . . 5
1.5 No Party Deemed Drafter. . . . . . . . . . . . . . . 6
1.6 Reformation. . . . . . . . . . . . . . . . . . . . . 6
1.7 Currency . . . . . . . . . . . . . . . . . . . . . . 6
1.8 Materiality. . . . . . . . . . . . . . . . . . . . . 6
2. PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . . 8
2.1 Purchase and Sale Transaction. . . . . . . . . . . . 8
2.2 Consideration. . . . . . . . . . . . . . . . . . . . 8
2.3 Closing. . . . . . . . . . . . . . . . . . . . . . . 10
3. REPRESENTATIONS AND WARRANTIES OF HERCULES AND HNBV . . . 10
3.1. Organization, Standing and Power . . . . . . . . . . 10
3.2. Ownership of HFI and HCI; HFI and HCI Ownership of
Tastemaker . . . . . . . . . . . . . . . . . . . . . 11
3.3. HNBV Interest in Tastemaker B.V. . . . . . . . . . . 11
3.4. Authority. . . . . . . . . . . . . . . . . . . . . . 12
3.5. Consents and Approvals; No Violation . . . . . . . . 13
3.6. Brokers. . . . . . . . . . . . . . . . . . . . . . . 15
3.7. Transactions with Affiliates . . . . . . . . . . . . 15
3.8. Agreements with Mallinckrodt . . . . . . . . . . . . 16
4. REPRESENTATIONS AND WARRANTIES OF GRI . . . . . . . . . . 16
4.1 Organization, Standing and Power . . . . . . . . . . 16
4.2 Authority. . . . . . . . . . . . . . . . . . . . . . 16
4.3 Consents and Approvals; No Violation . . . . . . . . 17
4.4 Financial Capabilities . . . . . . . . . . . . . . . 18
5. COVENANTS OF HERCULES . . . . . . . . . . . . . . . . . . 19
5.1 Documents to be delivered by Hercules and HNBV at
Closing. . . . . . . . . . . . . . . . . . . . . . . 19
6. COVENANTS OF GRI. . . . . . . . . . . . . . . . . . . . . 20
6.1 Deliveries by GRI at Closing . . . . . . . . . . . . 20
6.2 Constructive Termination . . . . . . . . . . . . . . 20
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7. MUTUAL COVENANTS OF HERCULES, HNBV AND GRI. . . . . . . . 21
7.1 Satisfaction of Conditions . . . . . . . . . . . . . 21
7.2 Further Assurances . . . . . . . . . . . . . . . . . 21
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS; INDEMNITY FOR DAMAGES . . . . . . . . . . 22
8.1 Survival . . . . . . . . . . . . . . . . . . . . . . 22
8.2 Limitations of Remedies. . . . . . . . . . . . . . . 23
8.3 Indemnification Procedures . . . . . . . . . . . . . 23
8.4 Claims Made in Written Notice. . . . . . . . . . . . 23
9. RESOLUTION OF DISPUTES. . . . . . . . . . . . . . . . . . 24
9.1 Conclusive and Exclusive . . . . . . . . . . . . . . 24
9.2 Forum and Waivers. . . . . . . . . . . . . . . . . . 24
10. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . 25
10.1 Conditions to Obligations of GRI . . . . . . . . . . 25
10.1.1 Accuracy of Representations and
Warranties. . . . . . . . . . . . . . . . . . . 25
10.1.2 Performance of Agreements. . . . . . . . . . . .25
10.1.3 Officers' Certificates . . . . . . . . . . . . .25
10.1.4 Wrap Agreement Conditions. . . . . . . . . . . .26
10.1.5 Legal Opinion. . . . . . . . . . . . . . . . . .26
10.2 Conditions to Obligations of Hercules. . . . . .26
10.2.1 Accuracy of Representations and
Warranties. . . . . . . . . . . . . . . . . . . 26
10.2.2 Performance of Agreements. . . . . . . . . . . .26
10.2.3 Officer's Certificate. . . . . . . . . . . . . .27
10.2.4 Wrap Agreement Conditions. . . . . . . . . . . .27
10.2.5 Legal Opinion. . . . . . . . . . . . . . . . . .27
11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 28
11.1 Termination and Cancellation . . . . . . . . . . . . 28
11.2 Effect of Termination. . . . . . . . . . . . . . . . 29
11.3 Notices. . . . . . . . . . . . . . . . . . . . . . . 29
11.3.1 Hercules Notice Address. . . . . . . . . . 30
11.3.2 HNBV Notice Address. . . . . . . . . . . . 31
11.3.3 GRI Notice Address . . . . . . . . . . . . 31
11.4 Assignment . . . . . . . . . . . . . . . . . . . . . 32
11.5 Waiver . . . . . . . . . . . . . . . . . . . . . . . 32
11.6 Amendments . . . . . . . . . . . . . . . . . . . . . 32
11.7 Limitations on Rights of Third Parties . . . . . . . 32
11.8 Counterparts . . . . . . . . . . . . . . . . . . . . 33
11.9 Governing Law. . . . . . . . . . . . . . . . . . . . 33
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Table of Appendices
Appendix A -- Form of Legal Opinion
THE TABLE OF APPENDICES SET FORTH ABOVE BRIEFLY IDENTIFIES THE CONTENTS
OF ALL OMITTED APPENDICES TO THE PURCHASE AND SALE AGREEMENT DATED AS OF
FEBRUARY 4, 1997 AMONG HERCULES INCORPORATED, HERCULES NEDERLAND B.V., AND
GIVAUDAN-ROURE (INTERNATIONAL) SA (THE "AGREEMENT"). A LIST BRIEFLY IDENTIFYING
THE CONTENTS OF ALL OMITTED SCHEDULES TO THE AGREEMENT IS AS FOLLOWS:
SCHEDULE 3.5 - CONTRACTS THAT REQUIRE CONSENT TO THE
TRANSACTION
SCHEDULE 3.7 - TRANSACTIONS BETWEEN HERCULES, HNBV, HFI OR HCI
AND ANY OF THE COMPANIES
SCHEDULE 3.8 - AGREEMENTS WITH MALLINCKRODT OR ITS AFFILIATES
HERCULES INCORPORATED WILL FURNISH SUPPLEMENTALLY A COPY OF ANY OMITTED
APPENDIX OR SCHEDULE TO THE SECURITIES AND EXCHANGE COMMISSION UPON REQUEST.
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Purchase Agreement"), dated as of
February 4, 1997, is made and entered into by and among HERCULES INCORPORATED, a
Delaware corporation ("Hercules"),
HERCULES NEDERLAND B.V., a Netherlands limited liability entity and wholly owned
subsidiary of Hercules ("HNBV"), and GIVAUDAN-ROURE (INTERNATIONAL) SA, a Swiss
corporation ("GRI").
RECITALS
A. Tastemaker, a general partnership organized and existing under the laws
of the State of Delaware ("Tastemaker"), and Tastemaker B.V., a limited
liability entity organized and existing under the laws of The Netherlands
("Tastemaker B.V."), together are engaged globally, both directly and indirectly
through their respective subsidiaries, in the development, manufacture and sale
of ingredients and compounds used primarily to provide flavor or taste in food
and beverage products (the "Business").
B. Tastemaker is owned forty percent (40%) by Hercules Flavor, Inc., a
Delaware corporation ("HFI") and wholly owned subsidiary of Hercules, ten
percent (10%) by Hercules Credit, Inc., a Delaware corporation ("HCI") and
wholly owned subsidiary of Hercules, and fifty percent (50%) by Fries & Fries,
Inc., a Delaware corporation ("F&F") and wholly owned subsidiary of Mallinckrodt
Inc., a New York corporation ("Mallinckrodt").
C. Tastemaker B.V. is owned one percent (1%) by Tastemaker, forty-nine and
one-half percent (49.5%) by F&F and forty-nine and one-half percent (49.5%) by
HNBV.
D. GRI or certain Affiliates of Roche Holdings, Inc., a Delaware
corporation ("Roche" and, together with GRI, the "Interested Persons") and GRI,
as the case may be, ("GRI" together with such Affiliates, the "Designated
Buyers") and Tastemaker intend to enter into a series of Purchase and Sale
Agreements (the "Designated Transaction Agreements"), subject and pursuant to
which and prior to the consummation of the transactions contemplated by this
Agreement, the F&F Transaction Agreement (as hereinafter defined) and the
Contribution Agreement
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(as hereinafter defined), Tastemaker shall transfer to the Designated Buyers,
and the Designated Buyers shall acquire, all of Tastemaker's foreign
subsidiaries, Tastemaker Finance, Inc., a Delaware corporation ("TFI"), and
Tastemaker's one percent (1%) interest in Tastemaker B.V. in exchange for
payment by the Designated Buyers of cash in the amounts specified in the Wrap
Agreement (as hereinafter defined).
E. Roche has organized a Delaware wholly owned subsidiary ("Newco"), which
will be, prior to the consummation of the transactions contemplated by the
Contribution Agreement (as hereinafter defined), capitalized with 100% of the
issued and outstanding common stock of Givaudan-Roure Corporation, a Delaware
corporation.
F. Hercules, Mallinckrodt and the Interested Persons are parties to that
certain Agreement as of the date hereof, which sets forth certain
representations, warranties, covenants and agreements relating to, among other
issues, the transfer by Hercules and HNBV to GRI of HNBV's interest in
Tastemaker B.V. and the contribution by Mallinckrodt to Newco of Mallinckrodt's
interest in F&F (the "Wrap Agreement").
G. Hercules and HNBV desire that HNBV transfer to GRI, and GRI desires to
acquire, HNBV's interest in Tastemaker B.V. through the acquisition by GRI of
HNBV's forty-nine and one-half percent (49.5%) interest in Tastemaker B.V. for
cash, subject and pursuant to the terms and conditions of this Purchase
Agreement and the Wrap Agreement.
H. The transfer by F&F to GRI of F&F's interest in Tastemaker B.V. is
covered by that certain Purchase and Sale Agreement as of the date hereof
entered into between F&F and GRI (the "F&F Transaction Agreement"), and (i)
neither Hercules nor HNBV shall have any liabilities, responsibilities or
obligations with respect to any representation, warranty, covenant or agreement
set forth in the F&F Transaction Agreement, and (ii) except as expressly
provided in Section 5.5 of the Contribution Agreement (as hereinafter defined),
Mallinckrodt shall have no liabilities, responsibilities or obligations with
respect to any representation, warranty, covenant or agreement set forth in the
F&F Transaction Agreement.
I. The contribution by Mallinckrodt to Newco of Mallinckrodt's interest in
F&F is covered by the Wrap Agreement and that certain Contribution Agreement
entered into among Mallinckrodt, Roche, GRI and Newco concurrently herewith (the
"Contribution Agreement"), and neither Hercules nor HNBV shall have any
liabilities, responsibilities or obligations with respect to any representation,
warranty, covenant or agreement set forth in the Contribution Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, provisions and covenants contained herein, the parties hereto agree
as follows:
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1. DEFINITIONS AND INTERPRETATION
1.1 Capitalized Terms. Capitalized terms used in this Purchase Agreement
and not otherwise defined shall have the meanings ascribed to such terms in the
Wrap Agreement. In addition, the following capitalized terms, when used in this
Purchase Agreement and not otherwise defined, shall have the following indicated
meanings:
1.1.1 Consolidated Subsidiaries shall mean those persons and entities,
the assets, liabilities or results of operations of which are included, or
required by GAAP to be included, in the consolidated financial statements of
GRI.
1.1.2 Downward Adjustment shall have the meaning ascribed to such term
in Section 2.2 hereof.
1.1.3 HNBV Tastemaker B.V. Interest shall have the meaning ascribed to
such term in Section 3.3 of this Purchase Agreement.
1.1.4 Upward Adjustment shall have the meaning ascribed to such term
in Section 2.2 hereof.
1.1.5 Voting Agreement shall mean that certain power of attorney dated
August 31, 1994 given to Tastemaker by HNBV and F&F, pursuant to which
Tastemaker is given the power to represent, and vote the interests of, HNBV and
F&F in the general meetings of shareholders of Tastemaker B.V.
1.1.6 Wrap Agreement shall have the meaning ascribed to such term in
Recital F of this Purchase Agreement.
1.2 Accounting Terms. Accounting terms used in this Purchase Agreement and
not otherwise defined shall have the meanings ascribed thereto under GAAP.
1.3 Construction. Unless the context clearly indicates to the contrary,
words singular or plural in number shall be deemed to include the other and
pronouns having a neuter, masculine or feminine gender shall be deemed to
include and refer to any and all genders. Whenever the terms "herein,"
"hereunder," or words of like import are used in this Purchase Agreement, the
intended reference is to the entire Purchase Agreement and not to the clause,
sentence or section in which such word appears.
1.4 Captions and Headings. The captions and headings in this Purchase
Agreement are inserted for convenience of reference only and shall not be
considered a part of, or affect the construction or interpretation of, any
provision of this Purchase Agreement.
1.5 No Party Deemed Drafter. This Purchase Agreement represents the
culmination of extensive and arms length
8
negotiations between the parties. No party shall be deemed the drafter of this
Purchase Agreement, and this Purchase Agreement shall not be construed for or
against any party by reason of a particular party being deemed the drafter.
1.6 Reformation. Should any term or condition of this Purchase Agreement be
determined by a court of competent jurisdiction to be unenforceable for any
reason, including, without limitation, violation of statute or public policy,
such provision shall, if possible, be reformed by the parties hereto or, if the
parties cannot agree, by the appropriate court of competent jurisdiction to
comply with applicable legal requirements in a manner that is as close in its
intent and effect to the original provision as possible or, if such reformation
cannot be accomplished, shall be stricken without affecting the validity of any
other term or condition of this Purchase Agreement.
1.7 Currency. All references in this Purchase Agreement to "dollars" or "$"
shall be deemed to mean and refer to United States dollars.
1.8 Materiality. Whenever the terms "material" or "material adverse effect"
are used in Section 3 and Section 10.1 of this Purchase Agreement, such terms
shall be interpreted and construed as meaning "material" to the business,
assets, condition (financial or otherwise) or results of operations of HNBV, HFI
or HCI, taken as a whole, or referencing a "material adverse effect" on the
business, assets, condition (financial or otherwise) or results of operations of
HNBV, HFI or HCI, taken as a whole; provided, however, that any such effect
caused by or resulting from (i) any change in generally accepted accounting
principles, (ii) the announcement or pendency of the transactions contemplated
by the Transaction Documents or the D&F Transaction Agreements, (iii)
fluctuations in the relative values of domestic and/or foreign currencies, or
(iv) any change in economic conditions generally shall not be considered when
determining whether a material adverse effect has occurred. Whenever the terms
"material" or "material adverse effect" are used in Sections 4 and 6 and Section
10.2 of this Purchase Agreement, such terms shall be interpreted and construed
as meaning "material" to the business, assets, condition (financial or
otherwise) or results of operations of GRI and its Consolidated Subsidiaries,
taken as a whole, or referencing a "material adverse effect" on the business,
assets, condition (financial or otherwise) or results of operations of GRI and
its Consolidated Subsidiaries, taken as a whole; provided, however, that any
such effect caused by or resulting from (i) any change in generally accepted
accounting principles, (ii) the announcement or pendency of the transactions
contemplated by the Transaction Documents or the D&F Transaction Agreements,
(iii) fluctuations in the relative values of domestic and/or foreign currencies,
or (iv) any change in economic conditions generally shall not be considered when
determining whether a material adverse effect has occurred.
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2. PURCHASE AND SALE
2.1 Purchase and Sale Transaction. Subject and pursuant to the terms and
conditions of this Purchase Agreement and the Wrap Agreement, HNBV shall
transfer to GRI, and GRI shall acquire, HNBV's forty-nine and one-half percent
(49.5%) interest in Tastemaker B.V. for cash, as provided in Section 2.2 below.
Hercules and HNBV shall be solely responsible for all covenants,
representations, warranties, liabilities and obligations of Hercules and HNBV
under this Purchase Agreement, and neither Mallinckrodt nor F&F shall have any
responsibilities, liabilities or obligations under this Purchase Agreement.
2.2 Consideration. On the Closing Date, GRI shall deliver to HNBV cash in
an amount equal to forty-nine and one-half percent (49.5%) of the Estimated
Tastemaker B.V. Value. The Tastemaker B.V. Value shall be determined in
accordance with Section 2.6.2 of the Wrap Agreement. Within ten (10) days after
the date upon which the Tastemaker B.V. Working Capital Adjustment and the
Tastemaker B.V. Long-Term Liabilities Adjustment are finally determined pursuant
to Section 2.6.2 of the Wrap Agreement (whether by agreement of the parties,
dispute resolution or as a result of the failure to timely provide a required
notice), then either (i) if the Tastemaker B.V. Working Capital Adjustment and
the Tastemaker B.V. Long-Term Liabilities Adjustment as finally determined
result in a Tastemaker B.V. Value that is higher than the Estimated Tastemaker
B.V. Value determined and paid on the Closing Date (the amount by which the
Tastemaker B.V. Value exceeds the Estimated Tastemaker B.V. Value being
hereinafter referred to as the "Upward Adjustment"), GRI shall pay to HNBV cash
in an amount equal to 49.5% of the Upward Adjustment, as well as interest on
such amount, or (ii) if the Tastemaker B.V. Working Capital Adjustment and the
Tastemaker B.V. Long-Term Liabilities Adjustment as finally determined result in
a Tastemaker B.V. Value that is lower than the Estimated Tastemaker B.V. Value
determined and paid on the Closing Date (the amount by which such Estimated
Tastemaker B.V. Value exceeds the Tastemaker B.V. Value being hereinafter
referred to as the "Downward Adjustment"), HNBV shall pay to GRI an amount equal
to 49.5% of the Downward Adjustment, as well as interest on such amount.
Interest shall be paid from and including the Closing Date through, but
excluding, the date of payment at a rate per annum equal to the rate of interest
announced by Morgan Guaranty Trust Company of New York from time to time as its
Base Rate in New York City in effect from time to time during the period from
the Closing Date to the date of payment. Such interest shall be payable at the
same time as the payment to which it relates and shall be calculated daily on
the basis of a year of 365 days and the actual number of days allowed.
2.3 Closing. The closing of the transactions contemplated
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by this Purchase Agreement shall occur at the time and place, and on the Closing
Date established by the parties under and pursuant to the Wrap Agreement.
3. REPRESENTATIONS AND WARRANTIES OF HERCULES AND HNBV
Hercules and HNBV jointly and severally represent and warrant to GRI as of
the date hereof and as of the Closing Date as follows:
3.1. Organization, Standing and Power. Hercules is a corporation duly
organized and validly existing under the laws of the State of Delaware and has
the requisite power and authority to carry on its business as conducted on the
date hereof. HFI is a corporation duly organized and validly existing under the
laws of the State of Delaware and has the requisite power and authority to carry
on its business as conducted on the date hereof. HCI is a corporation duly
organized and validly existing under the laws of the State of Delaware and has
the requisite power and authority to carry on its business as conducted on the
date hereof. HNBV is a limited liability entity duly organized and validly
existing under the laws of The Netherlands and has the requisite power and
authority to carry on its business as conducted on the date hereof.
3.2. Ownership of HFI and HCI; HFI and HCI Ownership of Tastemaker.
Hercules owns all of the issued and outstanding shares of capital stock of HFI
and HCI. HFI owns a forty percent (40%) partnership interest in Tastemaker, and
HCI owns a ten percent (10%) partnership interest in Tastemaker. Except as
provided in the Partnership Agreement, there are no options, warrants, calls,
rights or agreements to which HFI or HCI is a party obligating HFI or HCI to
issue, deliver, sell, repurchase, redeem or otherwise acquire, or cause to be
issued, delivered, sold, repurchased, redeemed or otherwise acquired, any
partnership interests in Tastemaker or obligating HFI or HCI to grant, extend or
enter into any such option, warrant, call, right or agreement.
3.3. HNBV Interest in Tastemaker B.V. HNBV owns a forty- nine and one-half
percent (49.5%) interest in Tastemaker B.V. (the "HNBV Tastemaker B.V.
Interest"), free and clear of all security interests, liens, claims, pledges,
voting rights, charges and encumbrances of any nature whatsoever except for the
Voting Agreement. The HNBV Tastemaker B.V. Interest has been duly authorized and
validly issued and is fully paid. HNBV will transfer and deliver to GRI at the
Closing valid title to the HNBV Tastemaker B.V. Interest, free and clear of all
security interests, liens, claims, pledges, voting rights, charges and
encumbrances of any nature except for the Voting Agreement. Except for this
Purchase Agreement, there are no options, warrants, calls, rights or agreements
to which HNBV is a party obligating HNBV to issue, deliver, sell, repurchase,
redeem or
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otherwise acquire, or cause to be issued, delivered, sold, repurchased, redeemed
or otherwise acquired, any ownership interests in Tastemaker B.V. or obligating
HNBV to grant, extend or enter into any such option, warrant or agreement. A
true and complete copy of the Voting Agreement has been made available to GRI.
3.4. Authority. Hercules has all requisite power and authority to enter
into this Purchase Agreement and the Wrap Agreement and to consummate the
transactions contemplated hereby and thereby. HNBV has all requisite power and
authority to enter into this Purchase Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Purchase
Agreement and the Wrap Agreement by Hercules and the consummation by Hercules of
the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of Hercules. The execution and
delivery of this Purchase Agreement by HNBV and the consummation by HNBV of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of HNBV. This Purchase Agreement and the Wrap Agreement have
been duly executed and delivered by Hercules and (assuming the due
authorization, execution and delivery thereof by GRI and, with respect to the
Wrap Agreement, Mallinckrodt) constitute the valid and binding obligations of
Hercules, enforceable against Hercules in accordance with their respective
terms. This Purchase Agreement has been duly executed and delivered by HNBV and
(assuming the due authorization, execution and delivery by GRI) constitutes the
valid and binding obligation of HNBV, enforceable against HNBV in accordance
with its terms.
3.5. Consents and Approvals; No Violation. Except as described on Schedule
3.5 to this Purchase Agreement, the execution and delivery of this Purchase
Agreement and the Wrap Agreement do not, and the consummation of the
transactions contemplated hereby and thereby and compliance with the provisions
hereof and thereof will not, result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or to the loss of a
material right or benefit under, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the properties or assets of
Hercules, HFI, HCI or HNBV under: (i) any provision of the Certificate of
Incorporation or By-Laws of Hercules, HFI or HCI or any provisions of the
charter or organizational documents of HNBV, (ii) any loan or credit agreement,
note, bond, mortgage, indenture, lease, agreement, instrument, permit,
concession, franchise or license by which Hercules, HFI, HCI or HNBV is bound or
(iii) any judgment, order, decree, statute, law, ordinance, rule or regulation
by which Hercules, HFI, HCI or HNBV is bound or to which any of their respective
properties or assets is subject, other than, in the case of clauses (ii) and
(iii), any such violations, defaults, rights, liens, security interests, charges
or encumbrances that would not reasonably be expected to
12
have a material adverse effect on HFI, HCI and HNBV and would not impair the
ability of Hercules to perform its obligations under this Purchase Agreement and
the Wrap Agreement or the ability of HNBV to perform its obligations under this
Purchase Agreement, prevent the consummation by Hercules or HNBV of any of the
transactions contemplated hereby or thereby or, other than by reason of any act
or omission of GRI or its respective subsidiaries, materially and adversely
affect the rights and benefits of GRI hereunder. No filing, declaration or
registration with, or consent, approval, order or authorization of, any
Governmental Authority is required by, or with respect to, Hercules, HFI, HCI or
HNBV in connection with the execution and delivery by Hercules of the Wrap
Agreement or this Purchase Agreement, the execution and delivery by HNBV of this
Purchase Agreement, the consummation by Hercules of the transactions
contemplated by the Wrap Agreement and this Purchase Agreement or the
consummation by HNBV of the transactions contemplated under this Purchase
Agreement, except: (a) in connection or compliance with the provisions of the
Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (b) for such
filings, declarations, registrations, consents, approvals, orders and
authorizations of the countries disclosed in APPENDIX F of the Wrap Agreement
and such filings, declarations, registrations, consents, approvals, orders and
authorizations that may be required under the laws of any other foreign country
in which any of the Companies is organized, conducts any business or owns any
property or assets; and (c) for such other filings, declarations, registrations,
consents, orders and authorizations the failure of which to obtain or make would
not reasonably be expected to have a material adverse effect on Hercules, HFI,
HCI or HNBV, and would not impair the ability of Hercules to perform its
obligations under this Purchase Agreement or the Wrap Agreement, or impair the
ability of HNBV to perform its obligations under this Purchase Agreement,
prevent the consummation by Hercules and HNBV, or any of the transactions
contemplated hereby or thereby or (other than by reason of any act or omission
of GRI or its Affiliates), materially and adversely affect the rights and
benefits of the Interested Persons hereunder and thereunder.
3.6. Brokers. No broker, investment banker or other person, other than
Dillon, Read & Co., Inc., the fees and expenses of which will be paid by
Hercules, is entitled to any broker's, finder's or other similar fee or
commission in connection with the execution and delivery of, or the consummation
of the transactions contemplated by, this Purchase Agreement or the Wrap
Agreement based on agreements or arrangements made by Hercules, HFI, HCI or
HNBV.
3.7. Transactions with Affiliates. Except as described on Schedule 3.7,
there are no material transactions between Hercules, HFI, HCI or HNBV and any of
the Companies other than any such transactions which have been entered into on
an arms-length basis in the ordinary course of the Companies' business. True and
complete copies of all of the agreements described on
13
Schedule 3.7 have been made available to GRI. All of the agreements described on
Schedule 3.7 are in full force and effect, and there exists no material default
by any of Hercules, HFI, HCI or HNBV or, to the knowledge of Hercules and HNBV,
any other person or entity under such agreements.
3.8. Agreements with Mallinckrodt. Except as described on Schedule 3.8 to
this Purchase Agreement, none of Hercules, HFI, HCI or HNBV is a party to any
agreement with Mallinckrodt or F&F that is material to any of the Companies.
True and complete copies of all agreements described on Schedule 3.8 have been
made available to GRI. All agreements described on Schedule 3.8 are in full
force and effect, and there exists no material default by any of Hercules, HFI,
HCI or HNBV or, to the knowledge of Hercules and HNBV, Mallinckrodt or F&F under
such agreements.
4. REPRESENTATIONS AND WARRANTIES OF GRI
GRI represents and warrants to Hercules and HNBV as of the date hereof and
on the Closing Date as follows:
4.1 Organization, Standing and Power. GRI is a corporation duly organized,
validly existing and in good standing under the laws of Switzerland and has the
requisite power and authority to carry on its business as conducted on the date
hereof.
4.2 Authority. GRI has all requisite power and authority to enter into this
Purchase Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Purchase Agreement by GRI and the consummation by
GRI of the transactions contemplated hereby have been duly authorized by all
necessary action on the part of GRI. This Purchase Agreement has been duly
executed and delivered by GRI and (assuming the due authorization, execution and
delivery hereof by Hercules and HNBV) constitutes the valid and binding
obligation of GRI, enforceable against GRI in accordance with its terms.
4.3 Consents and Approvals; No Violation. The execution and delivery of
this Purchase Agreement do not, and the consummation of the transactions hereby
and compliance with the provisions hereof will not, result in any violation of,
or default (with or without notice or lapse of time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any obligation
or to the loss of a material right or benefit under, (i) any provision of the
charter or organizational documents of GRI, (ii) any loan or credit agreement,
note, bond, mortgage, indenture, lease, agreement, instrument, permit,
concession, franchise or license by which GRI is bound or (iii) any judgment,
order, decree, statute, law, ordinance, rule or regulation by which GRI is bound
or to which
14
any of its properties or assets is subject, other than, in the case of clauses
(ii) and (iii), any such violations, defaults or rights that would not
reasonably be expected to have a material adverse effect on GRI, and would not
impair the ability of GRI to perform its obligations under this Purchase
Agreement, prevent the consummation by GRI of any of the transactions
contemplated by this Purchase Agreement or, other than by reason of any act or
omission of Hercules and HNBV, materially and adversely affect the rights and
benefits of Hercules and HNBV under this Purchase Agreement. No filing,
declaration or registration with, or consent, approval, order or authorization
of, any Governmental Authority is required by, or with respect to, GRI in
connection with the execution and delivery by GRI of this Purchase Agreement or
the consummation by GRI of the transactions contemplated by this Purchase
Agreement except: (a) in connection, or in compliance, with the provisions of
the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended, (b) for
such filings, declarations, registrations, consents, approvals, orders and
authorizations as are disclosed in APPENDIX F of the Wrap Agreement that may be
required under the laws of any foreign country in which any of the Companies is
organized, conducts any business or owns any property or assets, and (iii) for
such other consents, orders, authorizations, registrations, declarations and
filings the failure of which to obtain or make would not reasonably be expected
to have a material adverse effect on GRI.
4.4 Financial Capabilities. GRI has, and on the Closing Date will have,
readily available cash and credit, or access thereto, in an amount sufficient to
enable GRI to satisfy its obligations to make cash payments to HNBV at the time
and in the manner required under this Purchase Agreement.
5. COVENANTS OF HERCULES AND HNBV
5.1 Documents to be delivered by Hercules and HNBV at Closing. On the
Closing Date, and in addition to any other documents required to be delivered
pursuant to this Purchase Agreement or the Wrap Agreement, Hercules and HNBV
shall deliver (or cause to be delivered) to GRI the following, in form and
substance reasonably satisfactory to GRI:
(A) such instrument or instruments as are in form and substance sufficient
to transfer to GRI all of HNBV's rights, title and interest in and to
the HNBV Tastemaker B.V. Interest;
(B) a receipt for the cash delivered on the Closing Date by GRI pursuant
to Section 2.2 hereof;
(C) duly executed assignments of all Intellectual Property owned by the
Companies, including, without limitations, all Intellectual Property
listed in Schedule 3.18 of the Disclosure Schedule to the Wrap
Agreement, and registered in the name of Hercules or an Affiliate of
Hercules and which has not been previously formally
15
assigned to or registered in the name of any of the Companies;
(D) a certificate of good standing for Hercules from the Secretary of
State of the State of Delaware dated within twenty (20) days of the
Closing Date;
(E) a copy of the Certificate of Incorporation certified by the Secretary
of State of the State of Delaware to be a true and complete copy
thereof, which certification by said Secretary of State shall be dated
within twenty (20) days of the Closing Date;
(F) a copy of current Bylaws certified by the Secretary of Hercules to be
true and complete copies of such documents and further certified to be
in full force and effect without amendment; and
(G) organizational documents of HNBV.
6. COVENANTS OF GRI
6.1 Deliveries by GRI at Closing. On the Closing Date, in addition to any
other documents required to be delivered pursuant to this Purchase Agreement or
the Wrap Agreement, GRI shall deliver or cause to be delivered to HNBV cash in
the amount required under Section 2.2 hereof, and shall deliver (or cause to be
delivered) to Hercules and HNBV a receipt for the items delivered pursuant to
Section 5.2 hereof, in form and substance reasonably satisfactory to Hercules
and HNBV.
6.2 Constructive Termination. Subsequent to the consummation of the
transactions contemplated by the Contribution Agreement, and subject to Section
8.1.C. of the Partnership Agreement, GRI shall not make or permit F&F to make
any transfer that will cause a constructive termination of Tastemaker as a
general partnership under Section 708 of the Internal Revenue Code of 1986, as
amended.
7. MUTUAL COVENANTS OF HERCULES, HNBV AND GRI
7.1 Satisfaction of Conditions. From and after the date hereof, each of
Hercules, HNBV and GRI shall use their best efforts (individually or jointly, as
the case may be) to cause all conditions precedent set forth in Sections 10.1
and 10.2 of this Purchase Agreement to be satisfied and fulfilled at the
earliest practicable date, to the extent the satisfaction or fulfillment thereof
is its responsibility hereunder or within its reasonable control. If any event
should occur, either within or without the control of any party hereto, which
would prevent fulfillment of the conditions precedent to the obligations of any
party to consummate the transactions contemplated by this Purchase Agreement,
each party shall use its best efforts to cure or remove the effect of the event
as expeditiously as possible; provided, however, that (without limitation)
nothing set forth in this Section 7.1 shall be construed as requiring any party
to
16
institute litigation or expend any sums in the defense or settlement of
litigation in order to cure or remove the effect of any such event.
7.2 Further Assurances. After the Closing Date, each of Hercules, HNBV and
GRI shall, from time to time upon any other party's request, execute,
acknowledge and deliver, or cause to be executed, acknowledged and delivered,
all such further assignments, documents, instruments, transfers, conveyances,
discharges, releases, assurances and consents, and shall take or cause to be
taken such further actions, as such other party may reasonably request to
further evidence or carry out the transactions contemplated by, and the purposes
of, this Purchase Agreement.
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNITY FOR
DAMAGES
8.1 Survival. All representations and warranties of the parties made in
this Purchase Agreement, and all covenants and agreements of the parties made in
this Purchase Agreement and required to be performed on or before the Closing
Date, shall survive until 5:00 p.m. Eastern Standard Time on the second annual
anniversary of the Closing Date, notwithstanding any investigation heretofore
made or omitted by the parties, and shall expire and be of no further force and
effect after such time; provided that the representations and warranties
contained in Sections 3.1, 3.2, 3.3, 4.1 and 4.2 shall survive indefinitely. No
party will have any liability to any other party arising out of a breach of any
representation or warranty contained in this Purchase Agreement or of any
covenant or agreement made in this Purchase Agreement and required to be
performed on or before the Closing Date, unless the party claiming that such
breach occurred gives to the other party hereto written notice and a detailed
explanation of the alleged breach at or before 5:00 p.m. Eastern Standard Time
on the last day of the applicable survival period; provided, however, that if
notice of a claim is timely given, the claim specified in such notice, and the
specific representation, warranty, covenant or agreement upon which any such
claim is based, shall survive until such claim has been finally resolved.
8.2 Limitations of Remedies. The indemnification remedy set forth in this
Section 8 and any injunctive or other equitable relief to which any party may be
entitled from a court of appropriate jurisdiction shall be the sole remedies to
which any party hereto is entitled for any breach or non-compliance with the
provisions of this Purchase Agreement. Any recovery of Damages pursuant to the
indemnification remedy set forth in this Section 8, shall be limited to a
recovery of compensatory damages and shall not include any special, punitive,
exemplary, incidental or consequential damages or damages of any similar type;
provided that any such non-compensatory damages shall be
17
recoverable if and to the extent awarded by a court or other adjudicative body
of appropriate jurisdiction and authority at an outcome of any third party claim
for which indemnification is otherwise available hereunder.
8.3 Indemnification Procedures. The parties agree that the procedures for
asserting claims for indemnification and recovery of Damages shall be as set
forth in Section 8.8 of the Wrap Agreement.
8.4 Claims Made in Written Notice. All claims for indemnification hereunder
shall be made in a written notice setting forth, with particularity, the nature
of the claim for which indemnification is sought. All parties agree that no
claim for indemnification shall be made hereunder unless the party requesting
indemnification shall have a good faith belief that it is entitled to
indemnification hereunder.
9. RESOLUTION OF DISPUTES
9.1 Conclusive and Exclusive. Each and all disputes under this Purchase
Agreement shall be conclusively and exclusively resolved in accordance with the
terms and conditions set forth in Section 9 of the Wrap Agreement.
9.2 Forum and Waivers. EACH OF GRI, HERCULES AND HNBV AGREES, EXCEPT TO THE
EXTENT OTHERWISE PROVIDED IN THE TAX ANNEX TO THE WRAP AGREEMENT, THAT ANY
ACTION, SUIT OR PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS PURCHASE
AGREEMENT, ITS VALIDITY OR PERFORMANCE, SHALL BE INITIATED AND PROSECUTED AS TO
ALL PARTIES AND THEIR SUCCESSORS AND ASSIGNS AT NEW YORK, NEW YORK, WHICH SHALL
BE THE EXCLUSIVE FORUM FOR ALL SUCH ACTIONS, SUITS OR PROCEEDINGS. EACH OF GRI,
HERCULES AND HNBV CONSENTS TO AND SUBMITS TO THE EXERCISE OF JURISDICTION OVER
ITS PERSON BY ANY STATE OR FEDERAL COURT SITUATED AT NEW YORK, NEW YORK HAVING
JURISDICTION OVER THE SUBJECT MATTER, WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY
CERTIFIED MAIL DIRECTED TO THE PARTIES AT THEIR RESPECTIVE ADDRESSES SET FORTH
IN SECTION 11.3 OR AS OTHERWISE PROVIDED UNDER THE LAWS OF THE STATE OF NEW
YORK. EACH OF GRI, HERCULES AND HNBV WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER, AND
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY THE COURT. EACH OF GRI, HERCULES AND HNBV HEREBY RECIPROCALLY AND
IRREVOCABLY WAIVES TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE RELATING TO THIS
PURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10. CONDITIONS PRECEDENT
10.1 Conditions to Obligations of GRI. The obligations of
18
GRI to consummate the transactions contemplated by this Purchase Agreement are
subject to the satisfaction or waiver by GRI in writing of each of the following
conditions precedent:
10.1.1 Accuracy of Representations and Warranties. The representations
and warranties of Hercules and HNBV made in this Agreement shall be true and
correct in all material respects on the Closing Date.
10.1.2 Performance of Agreements. Hercules and HNBV shall have
performed in all material respects all obligations and agreements and complied
in all material respects with all covenants and conditions contained in this
Purchase Agreement to be performed and complied with by them at or prior to the
Closing Date.
10.1.3 Officers' Certificates. GRI shall have received from each of
Hercules and HNBV a certificate dated the Closing Date signed by a duly
authorized responsible officer of Hercules or HNBV, as applicable, certifying to
GRI that the representations and warranties of Hercules and HNBV made herein are
true and correct in all material respects on the Closing Date as if made at and
as of such date and that Hercules and HNBV have performed in all material
respects all obligations and agreements and complied in all material respects
with all covenants and conditions contained in this Purchase Agreement to be
performed and complied with by them at or prior to the Closing Date.
10.1.4 Wrap Agreement Conditions. All of the conditions precedent to
the obligations of GRI set forth in the Wrap Agreement shall have been satisfied
or waived in writing by GRI.
10.1.5 Legal Opinion. GRI shall have received the legal opinion, dated
as of the Closing Date, of Hercules' Assistant General Counsel and Secretary
with respect to those matters set forth in APPENDIX A to this Purchase
Agreement.
10.2 Conditions to Obligations of Hercules and HNBV. The obligations
of Hercules and HNBV to consummate the transactions contemplated by this
Purchase Agreement are subject to the satisfaction or waiver by Hercules and
HNBV in writing of each of the following conditions precedent:
10.2.1 Accuracy of Representations and Warranties. The representations
and warranties of GRI made in this Agreement shall be true and correct in all
material respects on the Closing Date.
10.2.2 Performance of Agreements. GRI shall have performed in all
material respects all obligations and agreements and complied in all material
respects with all covenants and conditions contained in this Purchase Agreement
to be performed and complied with by them at or prior to the Closing Date.
10.2.3 Officer's Certificate. Hercules and HNBV
19
shall have received from GRI a certificate dated the Closing Date signed by a
duly authorized officer of GRI delivering such certification and certifying that
the representations and warranties of GRI made herein are true and correct in
all material respects on the Closing Date and that GRI has performed in all
material respects all obligations and agreements and complied in all material
respects with all covenants and conditions contained in this Purchase Agreement
to be performed or complied with by them at or prior to the Closing Date.
10.2.4 Wrap Agreement Conditions. All of the conditions precedent to
the obligations of Hercules and Mallinckrodt set forth in the Wrap Agreement
shall have been satisfied or waived in writing by each of Hercules and
Mallinckrodt.
10.2.5 Legal Opinion. Hercules and HNBV shall have received the legal
opinion, dated as of the Closing Date, of Vice President and General Counsel of
Hoffmann-LaRoche Inc. with respect to those matters set forth in APPENDIX A to
this Purchase Agreement.
11. MISCELLANEOUS
11.1 Termination and Cancellation. This Purchase Agreement may be
terminated and the transactions contemplated herein may be abandoned at any time
prior to the Closing:
11.1.1 By the mutual written consent of the parties
hereto;
11.1.2 By any party hereto if neither the terminating party nor an
Affiliate of the terminating party is then in material breach of its obligations
under any of the Transaction Documents or the D&F Transaction Agreements if the
Closing Date has not occurred on or before the Closing Deadline;
11.1.3 By any of Hercules, HNBV or GRI if any of the Wrap Agreement,
the Contribution Agreement or the D&F Transaction Agreements is terminated in
accordance with the terms thereof prior to consummation of the transactions
contemplated thereby;
11.1.4 By GRI if any of the conditions precedent set forth in Section
10.1 have not been satisfied on or before the date established as the Closing
Date (as the same may be extended pursuant to Section 10.3 of the Wrap
Agreement);
11.1.5 By Hercules or HNBV if any of the conditions precedent set
forth in Section 10.2 have not been satisfied on or before the date established
as the Closing Date (as the same may be extended pursuant to Section 10.3 of the
Wrap Agreement);
11.1.6 By any party hereto not then in material breach of its
obligations hereunder if another party hereto has materially breached any
covenant herein, such breach is within the reasonable control of the breaching
party and either (i) such breach is not capable of being cured or corrected, or
(ii) the breaching party has not cured or corrected such breach within ten (10)
days after receipt of notice of such breach; or
20
11.1.7 By either Hercules, HNBV or GRI if there shall be any law or
regulation adopted subsequent to the date hereof that makes consummation of the
transactions contemplated hereby illegal or otherwise prohibited or if
consummation of the transactions contemplated hereby would violate any
nonappealable final order, decree or judgment of any court or governmental body
having competent jurisdiction.
11.2 Effect of Termination. Upon any termination of this Purchase
Agreement, each party hereto shall bear all expenses incurred by it in
connection with the negotiation, preparation, execution and performance of this
Purchase Agreement. No such termination shall relieve any party hereto of any
liability for a breach of or default under this Purchase Agreement, which
liability, including all expenses of each party hereto incurred in connection
with the negotiation, preparation, execution and performance of this Purchase
Agreement, shall continue notwithstanding such termination. The provisions of
Section 5.2 shall survive any termination of this Purchase Agreement.
11.3 Notices. All notices, requests, consents, approvals, waivers and other
communications hereunder shall be in writing and shall be deemed given or
delivered on the earlier of (i) the date actually received if properly addressed
and delivered to the addresses for notices set forth herein, regardless of how
sent, or (ii) five (5) business days after being mailed by United States
certified or registered mail, return receipt requested, with postage prepaid, in
each case addressed in accordance with the following:
11.3.1 Hercules Notice Address. Notices and other communications to
Hercules shall be sent to the following addresses:
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: George MacKenzie,
Senior Vice President and CFO
Telephone No.: 302-594-5175
Facsimile No.: 302-594-7032
with a required copy to:
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Israel J. Floyd, Assistant General Counsel
and Corporate Secretary
Telephone No.: (302) 594-5128
Facsimile No.: (302) 594-7252
21
or to such other addresses as Hercules may from time to time designate in a
notice pursuant to this Section 11.3.
11.3.2 HNBV Notice Address. Notices and other communications to HNBV
shall be sent to the following addresses:
Hercules Nederland B.V.
c/o Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: George MacKenzie,
Senior Vice President and CFO
Telephone No.: 302-594-5175
Facsimile No.: 302-594-7032
with a required copy to:
Hercules Incorporated
Hercules Plaza
1313 North Market Street
Wilmington, Delaware 19894-0001
Attention: Israel J. Floyd, Assistant General Counsel
and Corporate Secretary
Telephone No.: (302) 594-5128
Facsimile No.: (302) 594-7252
or to such other addresses as HNBV may from time to time designate in a notice
pursuant to this Section 11.3.
11.3.3 GRI Notice Address. Notices and other communications to GRI
shall be sent to the following addresses:
Givaudan-Roure (International) SA
5, Chemin de la Parfumerie
CH-1214 Vernier, Geneva
Attention: Othmar Vock
Telephone No.: 011-41-22-780-9440
Facsimile No.: 011-41-22-780-9152
with a required copy to:
Davis, Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Phillip R. Mills
Telephone No.: 212-450-4618
Facsimile No.: 212-450-5500
or to such other addresses as GRI may from time to time designate in a notice
pursuant to this Section 11.3.
11.4 Assignment. None of Hercules, HNBV or GRI shall assign this Purchase
Agreement, or any rights hereunder, by operation of law or otherwise, without
the prior written consent of the other
22
parties hereto; provided, however, that GRI shall be entitled to assign its
respective rights hereunder, in whole or from time to time in part, to one or
more of its Affiliates, but no such assignment shall relieve GRI of any of its
responsibilities or obligations hereunder.
11.5 Waiver. No waiver of any provision hereof shall be effective unless
such waiver is set forth in a writing signed by the party to be charged thereby,
and then such written waiver shall be effective only in the instance and for the
purpose specified therein. No failure or delay on the part of any party in
exercising any right, power or privilege under this Purchase Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
11.6 Amendments. This Purchase Agreement may be amended or modified in
whole or in part only by a duly authorized written agreement that refers to this
Purchase Agreement and is signed by all of the parties hereto.
11.7 Limitations on Rights of Third Parties. Nothing expressed or implied
in this Purchase Agreement is intended or shall be construed to confer upon or
give any person or entity other than Hercules, HNBV and GRI any rights under
this Purchase Agreement; provided, however, that Roche shall be deemed a third
party beneficiary of this Purchase Agreement with respect to the representations
and warranties of Hercules and HNBV set forth in Article 3 hereof. Any claim
brought by Roche against Hercules or HNBV with respect to such representations
and warranties shall be subject to any defense which Hercules or HNBV, as the
case may be, would have if it were GRI, rather than Roche, bringing such claim.
11.8 Counterparts. This Purchase Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.9 Governing Law. This Purchase Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York of
the United States of America, without giving effect to its conflict of law
principles.
11.10 Entire Agreement. This Purchase Agreement and the Wrap Agreement
constitute and contain the entire agreements among Hercules, HNBV and GRI with
respect to the subject matter hereof and thereof and supersede all other
agreements, written or oral, made prior to the date hereof or contemporaneously
herewith and relating to the transactions contemplated by the Transaction
Documents. No representation, warranty, covenant or agreement relating to the
transactions contemplated by this Purchase Agreement and the Wrap Agreement
shall be binding upon any party hereto unless expressly set forth in this
Purchase Agreement or
23
the Wrap Agreement, and then only to the extent so provided in such agreements.
IN WITNESS WHEREOF, the parties have executed this Purchase Agreement as of
the day and year first above written.
HERCULES INCORPORATED
By:__________________________
Name:________________________
Title:_______________________
HERCULES NEDERLAND B.V.
By:__________________________
Name:________________________
Title:_______________________
GIVAUDAN-ROURE (INTERNATIONAL) SA
By:___________________________
Name:_________________________
Title:________________________