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EXHIBIT 2.1
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BUSINESS COMBINATION AGREEMENT
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dated as of 30/31 December, 2000
among
MESSER INDUSTRIEGESELLSCHAFT MBH,
MESSER GRIESHEIM GMBH,
CORNELIA VERWALTUNGSGESELLSCHAFT MBH,
HOECHST AKTIENGESELLSCHAFT
AND
DIOGENES ZWANZIGSTE
VERMOGENSVERWALTUNGS GMBH
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[GRAPHIC]
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TABLE OF CONTENTS
<Table>
1. Certain Definitions .....................................................2
2. Transactions Forming the Business Combination ...........................9
2.1 Certain Dates .....................................................9
2.2 MGG's Pre-Closing Restructuring ..................................10
2.3 [Intentionally left blank] . .....................................10
2.4 Contribution and Transfer of Hoechst-MGG Share to Hoechst
NewCo II .........................................................10
2.5 Sale of China Interests ..........................................11
2.6 Share Loan of Hoechst NewCo II Shares to Hoechst NewCo III .......13
2.7 Sale of Hoechst NewCo II Shares and Hoechst NewCo II
Contribution Receivable to Investor NewCo . ......................14
2.8 Call Option for Hoechst NewCo II Option Shares ...................16
2.9 Counter-Call Option for Hoechst NewCo III Shares .................18
2.10 Counter-Put Option for Hoechst NewCo III Shares ..................19
2.11 Summary of Steps .................................................20
2.12 Closing Transactions .............................................22
3. Conditions to Closing ..................................................23
3.1 Conditions to the Parties' Obligations ...........................23
3.2 Non-Fulfillment of Closing Conditions ............................27
3.3 Exemption of Certain Transaction .................................27
3.4 MAC Determination and Breach of Rep Determination ................28
4. Covenants...............................................................30
4.1 General...........................................................30
4.2 Covenants of Hoechst and MIG......................................31
4.3 Negative Covenants of Hoechst.....................................32
4.4 Hoechst Nominees..................................................32
4.5 Access and Information............................................32
4.6 Financial Statements 2000.........................................32
4.7 Business Year.....................................................33
4.8 Covenants of Investor.............................................34
4.9 Antitrust Regulatory Approvals....................................34
4.10 Pensionskasse in Germany .........................................36
4.11 [intentionally left blank]........................................36
4.12 Covenants of Investor NewCo ......................................36
4.13 Covenants under Contribution Agreements ..........................39
4.14 Non-Fulfillment of Counter-Call ..................................40
4.15 No Change of Forward Sale Agreements .............................41
4.16 Special Indemnification ..........................................41
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4.17 Disproportionate Guarantee Indemnification . .....................43
4.18 Monetarization of Loan Notes .....................................51
4.19 Singapore ........................................................51
4.20 Contributions by Investor NewCo ..................................52
4.21 Additional Hoechst Shareholding in Messer Egypt S.A.E ............52
5. Representations and Warranties of Hoechst ..............................53
5.1 Messer Group......................................................53
5.2 Capital Stock.....................................................54
5.3 No Breach.........................................................54
5.4 No Encumbrances on Stock .........................................55
5.5 Financial Statements .............................................55
5.6 Ordinary Course Operation ........................................56
5.7 Real Property. ...................................................56
5.8 Gas Business Assets ..............................................57
5.9 Intellectual Property Rights .....................................58
5.10 Contracts and Commitments . ......................................58
5.11 Litigation .......................................................61
5.12 Employees ........................................................62
5.13 Employee Benefit Plans ...........................................62
5.14 Capital Contributions/Distributions ..............................64
5.15 Compliance with Laws; Permits; Certain Operations ................64
5.16 Insurance ........................................................64
5.17 Other Liabilities ................................................65
5.18 Finance Leases ...................................................65
5.19 Consolidated Debt at Year End ....................................65
5.20 Special Rep ......................................................67
6. Indemnification By Hoechst .............................................67
6.1 General ..........................................................67
6.2 Loss .............................................................68
6.3 Hoechst Damage Quota, De Minimis Amount, Threshold and Cap .......68
6.4 Third-Party-Claims ...............................................70
6.5 Waiver of Claims .................................................71
6.6 Limitation .......................................................71
6.7 Mitigation .......................................................72
6.8 Indemnification of Hoechst .......................................73
6.9 Sole Remedy ......................................................74
6.10 Exclusion of Liability ...........................................75
6.11 Oral Statements ..................................................75
6.12 Knowledgeable Persons ............................................76
6.13 Exclusion of Sections 439, 460, 464 ..............................76
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6.14 Aventis China Companies ..........................................76
6.15 Audit Review......................................................76
6.16 Specific Remedy For Section 5.20..................................78
7. Representations and Warranties of Investor NewCO .......................78
7.1 Representations ..................................................78
7.2 Indemnification...................................................79
8. Tax Matters ............................................................79
8.1 Tax Indemnities ..................................................79
8.2 Refunds and Benefits .............................................82
8.3 Preparation of Tax Returns .......................................84
8.4 Cooperation and Exchange of Information ..........................84
8.5 Notification .....................................................85
8.6 Contest ..........................................................86
8.7 Conveyance Taxes .................................................87
8.8 Miscellaneous . ..................................................87
8.9 Clarifications ...................................................88
8.10 Aventis China Companies ..........................................88
9. Environmental Matters ..................................................89
9.1 Refund and Allocation of Damage Control Expense ..................89
9.2 Conditions to Certain Refunds ....................................91
9.3 Post-Closing Environmental Contamination .........................94
9.4 Application for Refund ...........................................95
9.5 Aventis China Companies ..........................................96
10. Termination ............................................................96
10.1 Termination ......................................................96
10.2 Special Termination Right of Investor NewCo ......................97
10.3 Special Termination Right of Hoechst .............................98
10.4 Effect of Termination ............................................99
11. Guarantees .............................................................99
12. Additional Agreements ..................................................99
12.1 MIG Rights .......................................................99
12.2 Non-Compete. ....................................................100
12.3 Expenses and Fees ...............................................101
12.4 Notices..........................................................101
12.5 Amendments.......................................................102
12.6 Headings.........................................................103
12.7 Default Interest Rate ...........................................103
12.8 Rights of Retention .............................................103
12.9 Complete Agreement ..............................................103
12.10 Successors ......................................................104
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<Table>
12.11 Counterparts ....................................................104
12.12 Confidentiality .................................................105
12.13 Severability Clause .............................................106
12.14 Access to Information ...........................................106
12.15 Governing Law ..................................................106
12.16 Arbitration ....................................................107
</Table>
LIST OF EXHIBITS*
Exhibit A Aventis China Companies
Exhibit B List of Material Messer Companies
Exhibit C List of Messer Group Companies
Exhibit D Certain Investigations
Exhibit E Certain Activities
Exhibit 2.2 Foreign Sub Contribution Agreement
Exhibit 2.4 Hoechst NewCo II Contribution Agreement
Exhibit 2.5 China Sale and Purchase Agreement
Exhibit 2.6 Share Loan Agreement
Exhibit 2.7(a)(1) Hoechst NewCo II Share Purchase Agreement I
Exhibit 2.7(b) Hoechst NewCo II Contribution Receivable Purchase
Agreement
Exhibit 2.8(a) Hoechst NewCo II Share Purchase Agreement II
Exhibit 2.8(b) Management Certificate before Exercise Call Option
Exhibit 2.9(a) Hoechst NewCo III Share Purchase Counter-Call Agreement
Exhibit 2.9(b) Form of Acceptance Declaration (for executing Counter-Call
Option)
Exhibit 2.10(a) Hoechst NewCo III Share Purchase Counter-Put Agreement
Exhibit 2.10(b) Form of Acceptance Declaration (for executing Counter-Put
Option)
Exhibit 3.1(b)(i) Forward Sale Agreement I
Exhibit 3.1(b)(ii) Forward Sale Agreement II
Exhibit 3.1(h) Companies not to become insolvent
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Exhibit 3.1(j) Aventis Guarantee
Exhibit 3.1(l) Singapore Separation Agreement ("Formation, Funding and
Shareholders' Agreement")
Exhibit 4.2 Instruction Letter
Exhibit 4.6 Write-Off Schedule
Exhibit 4.8 Equity Commitment Letters
Exhibit 4.12(a) New Articles of Hoechst NewCo II
Exhibit 4.12(h) Financial Information Investor NewCo
Exhibit 4.12 Possible Restructuring of Hoechst NewCo II
Exhibit 4.17 Disproportionate Guarantee Schedule
Exhibit 5 Disclosures
Exhibit 9.1 Table 1: 5 environmental sites
Table 2: Other disclosed contamination
*The following exhibits have been omitted from this filing, but will be provided
to the SEC upon its request.
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1
INDEX OF DEFINED TERMS
<Table>
10 Business Days Delay Rule ...................45
2002 Break-Up Situation .......................38
66% Principle .................................64
Acetylene Companies ............................2
ACIC ...........................................2
Adjusted Excess Percentage ....................42
Affiliate ......................................2
Agreement ......................................2
Ancillary Agreements ...........................2
Antitrust Approvals ...........................22
Antitrust Filings .............................32
Applicable Law .................................2
Applicable Rate ...............................45
Aventis ........................................3
Aventis China Companies ........................3
Aventis Credit Drop ...........................16
Bank Sub ......................................17
Business Day ...................................3
Call Option ...................................15
Call Option Period ............................15
Call Option Price .............................15
China Drop Date ................................3
China Interests ................................3
China Limitation Date .........................67
China Purchase Price ..........................10
China Purchase Price Guarantee ................11
China Sale and Purchase Agreement .............10
China SPA .....................................10
Closing ........................................3
Closing Date ...................................9
Closing Drop Date .............................90
Closing Time ..................................21
Combination Documents ..........................3
Company ........................................1
Company Shares .................................1
Consolidated Messer Companies ..................3
Consultants ...................................58
Contest .......................................80
Contractual Interest Rate ......................3
Controlled Covered Entity ......................3
Corporate Documents ...........................51
Counter Option Price ..........................17
Counter-Call Option ...........................16
Counter-Call Option Period ....................17
Counter-Put Option ............................18
Counter-Put Option Period .....................18
Counter-Put Option Price ......................18
Covered Entities ..............................41
Covered Guarantee .............................41
Covered Period ................................43
Damage Control Expenses ........................4
Damage Control Measures ........................4
date hereof ....................................4
De Minimis Amount .............................65
Deferred Purchase Price .......................13
Definitive Financing Commitment ...............91
Disproportionate Guarantee Schedule ...........41
Due Diligence...................................1
Encumbrances ..................................52
Environmental Cap .............................85
Environmental Companies ........................4
Environmental Contamination ....................4
Environmental Damage ...........................4
Environmental De Minimis Amount ...............84
Environmental Indemnification Companies ........5
Environmental Law ..............................5
Environmental Threshold .......................84
EU Regulation .................................22
Excess Percentage .............................42
Expert ........................................86
Final MAC Determination .......................27
Financial Date .................................9
Financial Date Exposure .......................42
Financial Debt .................................5
Financial Guarantee ............................5
Financial Statements 1999 ......................5
Financial Statements 2000 ......................5
Financing .....................................91
Firm ..........................................72
Foreign Step-up ............................... 9
Foreign Sub Contribution Agreement ............ 9
Former Messer Real Estate .....................84
Forward Sale Agreement I ......................21
Forward Sale Agreement II .....................21
Fully Owned ................................... 5
Fund ..........................................73
Gas Business .................................. 1
German Participating Employees ................34
Governmental Entity ........................... 5
Governmental Orders ...........................85
GS Funds ......................................32
Guarantee Cap .................................66
Guarantee Demand Notice .......................43
Guarantee Holder ..............................41
Guarantee Percentage ..........................42
Hoechst ....................................... 5
Hoechst Damage Control Expense Quota ..........83
Hoechst Damage Quota ..........................64
Hoechst Group ..................................6
Hoechst NewCo II ...............................6
Hoechst NewCo II Contribution Agreement .......10
Hoechst NewCo II Contribution Receivable ......10
Hoechst NewCo II Option Shares .................6
Hoechst NewCo II Receivable Purchase Price ....13
Hoechst NewCo II Share Purchase Agreement I ...13
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Hoechst NewCo II Share Purchase Agreement II ..15
Hoechst NewCo II Shares ........................6
Hoechst NewCo III ..............................6
Hoechst NewCo III Share Purchase Counter-
Call Agreement ................................17
Hoechst NewCo III Share Purchase Counter-Put
Agreement .....................................18
Hoechst NewCo III Shares .......................6
Hoechst Payment Amount ........................44
Hoechst-MGG Share ..............................1
HSR Act .......................................22
IAS ............................................6
Improvements ..................................53
Income Tax ....................................81
Indemnification Period ........................39
Insolvency ....................................23
Insolvent .....................................23
Interests .....................................50
Investor NewCo .................................6
Key Employees .................................58
Lien ...........................................6
Loan Notes ....................................13
Loss ..........................................64
MAC Determination Notice ......................26
MAC Dispute Notice ............................26
Main MGG Purchase Price .......................13
Material Messer Companies ......................6
Material Messer Contracts .....................57
Material Messer Owned Real Property ...........53
Maximum Guaranteed Amount .....................42
Messer Capital Stock ..........................51
Messer Foreign Holding .........................6
Messer Group ...................................6
Messer Group Companies .........................7
Messer Real Estate .............................7
MGG ............................................1
MGG Designee ...................................7
MGG Guarantor .................................41
MGG Payment Date ..............................43
MGG Percentage ................................42
MIG.............................................1
MIG-MGG Share ..................................1
Minimum Damage Amount .........................37
Non-Fully Owned ................................7
Objection Notice ..............................72
Other Non-Controlled Covered Entity ............7
Participations ................................50
Payment Notice ................................43
Permits ........................................7
Permitted Liens ................................7
Person .........................................7
Plans .........................................59
Pre-Transaction Distributed Capital Situation..67
Pro Rata Exception Principle ..................65
Pro Rata Principle ............................64
Pro Rata Shareholding Principle ...............64
RAP ...........................................87
Recontribution Note ...........................36
Reference Deed .................................2
Reimbursement Application .....................89
Share Loan Agreement ..........................12
Singapore Separation Agreement ................24
Site ...........................................7
Sold Covered Entity ............................7
Special Foreign Companies ......................7
Special Non-Controlled Covered Entity ..........7
Standstill Period .............................46
Subsidiary .....................................7
Tax ............................................8
Tax Authority ..................................8
Tax Indemnification Company ....................8
Tax Return .....................................8
Threshold .....................................65
Total Compensation .............................8
Total Exposure ................................42
Total MGG Payment .............................43
Write-Downs ...................................30
</Table>
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WITNESSETH
WHEREAS, Messer Griesheim GmbH (the "COMPANY" or "MGG") is engaged,
directly and through subsidiaries, in various business activities, including
without limitation the business of developing, producing and marketing
industrial gases (all of such business activities other than activities related
to the cutting and welding business which has been or agreed to be sold to MIG,
collectively the "GAS BUSINESS").
WHEREAS, MGG is a limited liability company organized and existing
under the laws of the Federal Republic of Germany, registered with the
commercial register of the Amtsgericht Frankfurt am Main under No. HR B 7812,
and its stated share capital amounts to DM 540,000,000 (in words: Deutsche Mark
five hundred and forty million) which is represented as of the date hereof by
two (2) shares as follows: one (1) share with a nominal value of DM 360,000,000
is held by Hoechst (the "HOECHST-MGG SHARE") and one (1) share with a nominal
value of DM 180,000,000 is held by certain members of the Messer family through
the Messer Industrie GmbH ("MIG") (the "MIG-MGG SHARE" and together with the
Hoechst MGG Share, the "COMPANY SHARES").
WHEREAS, Hoechst is interested in having a right to sell its interest
in the Gas Business and to sell shares in certain Chinese companies, and
Investor NewCo is interested in buying such interest and MGG in buying such
shares in the Chinese companies.
WHEREAS, MIG is interested in remaining active in the Gas Business and
in accepting Investor NewCo as a new shareholder of the Company.
WHEREAS, Investor NewCo had the opportunity to conduct a due diligence
with respect to substantive matters of the Messer Group Companies prior to the
notarization of this Agreement (the "DUE DILIGENCE").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
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INTRODUCTORY REMARKS
At certain places in this Agreement reference is made to a "Reference Deed"
which deed shall mean the notarial deed of notary public Dr. Peter Gamon in
Frankfurt (Ur.-Nr. G 679/2000 (the "REFERENCE DEED"). In this Reference Deed,
Ms. Silvia Marxen acted as a representative for all parties of this Agreement
without power of attorney. The parties hereby approve all declarations made by
Ms. Marxen and hereby confirm that they have full knowledge of the content of
the Reference Deed. Furthermore, the parties hereby incorporate such Reference
Deed into this Agreement and waive their right to have such Reference Deed read
aloud and attached hereto. The Reference Deed was available for inspection
during the notarization of this Agreement. Wherever in this Agreement reference
is made to Exhibits, and these Exhibits are not attached hereto, the reference
is made to the Exhibits of the Reference Deed.
1. CERTAIN DEFINITIONS
The following terms shall have the following meanings:
"ACETYLENE COMPANIES" means Messer Mostar Plin d.o.o., Compania de Productos
(COPA 3091), Gases Industriales S.A. de C.V., Messer Namibia (Propietary)
Ltd., Messer Energo Gaz S.R.L., Messer Industrial Gases (Private) Limited,
Industrial Gases (Trinidad), Messer Haiphong (Vietnam) Industrial Gases Ltd.
"ACIC" means Aventis (China) Investment Co. Ltd.
"AFFILIATE" means, with respect to any Person, any other Person that directly or
indirectly through one or more intermediaries controls, is controlled by, or is
under common control with such Person.
"AGREEMENT" means this Business Combination Agreement including all Exhibits
thereto.
"ANCILLARY AGREEMENTS" means the following agreements including all Exhibits
thereto: the Hoechst NewCo II Contribution Agreement, the Forward Sale Agreement
I, the Forward Sale Agreement II and the Share Loan Agreement.
"APPLICABLE LAW" means any statute, law, ordinance, rule, regulation or code of
any Governmental Entity applicable to a specific legal entity or situation.
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"AVENTIS" means Aventis, a stock company under French law with a supervisory
board and its registered offices in Schiltigheim, France.
"AVENTIS CHINA COMPANIES" means the companies listed in EXHIBIT A (and being
identical with the companies defined as ACIC Gas Companies in the China Sale and
Purchase Agreement).
"BUSINESS DAY" means any day that is not a Saturday, Sunday or any other day on
which banks are required by Applicable Law to be closed in the State of Hessen,
Federal Republic of Germany.
"CHINA DROP DATE" means the first day following the expiry of a period of
twenty-four (24) months after the Closing Date.
"CHINA INTERESTS" means the shareholding of ACIC in the Aventis China Companies
(and being identical with the ACIC Gas Interests as defined in the China Sale
and Purchase Agreement).
"CLOSING" means the consummation of the transactions to be performed at the
Closing Date.
"COMBINATION DOCUMENTS" means this Agreement including its Exhibits, the
Ancillary Agreements, the China SPA, the Singapore Separation Agreement, the
Hoechst NewCo II Share Purchase Agreement I, the Hoechst NewCo II Share Purchase
Agreement II, the Hoechst NewCo III Share Purchase Counter-Call Agreement, the
Hoechst NewCo III Share Purchase Counter-Put Agreement, the Foreign Sub
Contribution Agreement and the Hoechst NewCo II Contribution Receivable Purchase
Agreement, all including all Exhibits thereto.
"CONSOLIDATED MESSER COMPANIES" means MGG and the Messer Group Companies which
have been fully consolidated in the Financial Statements 1999.
"CONTRACTUAL INTEREST RATE" means, in respect of any calendar quarters, interest
at a rate of EURIBOR (six months) + 100 basis points as per the first banking
day of that calendar quarter in which the respective interest period starts,
adjusted every new calendar quarter after such first banking day to the then
prevailing EURIBOR (six months), and ending on the day on which payment is
received by the other party, and which interest shall be calculated on the basis
of the number of days elapsed during such period divided by 360 to be compounded
semiannually.
"CONTROLLED COVERED ENTITY" means the entities described as such in EXHIBIT
4.17.
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"DAMAGE CONTROL EXPENSES" means (i) costs and damages incurred or payments made
after the Financial Date to implement a Damage Control Measure, including
without limitation the technical and analytical costs, excavations,
transportation, storage and treatment of polluted soil and groundwater, and (ii)
costs and expenses, including fees, disbursements and expenses of legal counsel,
experts and engineers related to the foregoing and incurred after the Financial
Date; PROVIDED that such costs and damages under (i) are kept as low as possible
consistent with applicable requirements of Environmental Law and Permits, and
such costs under (ii) are commercially reasonably incurred. Expressly excluded
are (i) internal administrative and overhead costs of implementation of the
Damage Control Measures and (ii) damages resulting from a business interruption
to the extent covered by insurances in force as of the Financial Date which
insurances shall be deemed to remain in force indefinitely. In the event that
a Damage Control Measure is undertaken as part of a construction project, only
the additional expenses incurred in connection with such construction project on
account of the Environmental Contamination shall be considered a Damage Control
Expense.
"DAMAGE CONTROL MEASURES" means any measures (including penalties and damage
payments to third parties) undertaken by any of the Environmental Companies
arising from an Environmental Damage.
"DATE HEREOF" means September 5, 2000.
"ENVIRONMENTAL COMPANIES" means the Environmental Indemnification Companies and
the Acetylene Companies.
"ENVIRONMENTAL CONTAMINATION" means any pollutants, contaminants or other
substances (including liquids, solids, gases) that are present in or on
buildings, surface water, soil air, soil or ground water or emitted from the
respective real property, that, pursuant to any Environmental Law applicable at
the location of the Environmental Contamination, are required to be remediated.
"ENVIRONMENTAL DAMAGE" means any liability or obligation of (i) an Environmental
Indemnification Company arising from any Environmental Contamination that (A)
exists on the Messer Real Estate on the Closing Date, or (B) has migrated from
the Messer Real Estate on or prior to the Closing Date, or (C) has otherwise
been caused by an Environmental Indemnification Company on or prior to the
Closing Date, or (ii) any of the Acetylene Companies arising from an
Environmental Contamination to the extent it relates to the current or former
production of acetylene, including purification and cleaning or maintenance of
the machinery, other equipment and transportation vehicles
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or containers used therefor and the disposal of wastes resulting therefrom, and
that (A) exists on the Closing Date on the real estate owned or otherwise
occupied by an Acetylene Company on the Closing Date, or (B) has migrated from
such real estate on or prior to the Closing Date, or (C) has otherwise been
caused by an Acetylene Company on or prior to the Closing Date.
"ENVIRONMENTAL INDEMNIFICATION COMPANIES" means the Material Messer Companies,
all Messer Group Companies which have their registered seat in India,
Industrial Gases Ltd. (Trinidad), Messer Spain S.A. and Sauerstoffvertrieb
Wilhelm Geldbach GmbH & Co. KG.
"ENVIRONMENTAL LAW" means all federal, state and local German and non-German
statutes, regulations, ordinances, Permits and similar provisions, including
standards and common law having the force or effect of law, concerning as
legislative objective or in the individual case the protection of health or
pollution or protection of the environment, as such laws are in effect prior to
or on the Closing Date, and all judicial and administrative orders and
determinations based on such laws.
"FINANCIAL DEBT" means any interest bearing payment obligations to banks or
similar financial institutions (Section 266 III C No. 2 HGB - German
Commercial Code).
"FINANCIAL GUARANTEE" means a guarantee or similar enforceable contractual
obligation given by a Person to secure the Financial Debt of another Person.
"FINANCIAL STATEMENTS 1999" means the consolidated audited IAS financial
statements of the Company for the business year ending on December 31, 1999.
"FINANCIAL STATEMENTS 2000" means the consolidated financial statements of the
Company and the individual financial statements of the Consolidated Messer
Companies for the business year ending on December 31, 2000.
"FULLY OWNED" used with respect to any Messer Group Company means such company
which is directly or indirectly 100% owned by MGG.
"GOVERNMENTAL ENTITY" means any foreign or domestic government, agency,
governmental department, commission, board, bureau, court or instrumentality or
any state or other political subdivision thereof (whether now or hereafter
constituted and/or existing) and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government.
"HOECHST" means Hoechst Aktiengesellschaft.
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"HOECHST GROUP" means Hoechst, Aventis and any of their Affiliates other than
the Messer Group.
"HOECHST NEWCO IV" means DIOGENES Vierte Vermogensverwaltungs
Aktiengesellschaft, a German stock corporation (AKTIENGESELLSCHAFT) with a
registered share capital of DM 100,000, to be converted and increased to EUR
60,000 prior to Closing, registered with the commercial register of AG Frankfurt
am Main under HR B 42291 and being as of the date hereof a wholly owned
subsidiary of Hoechst.
"HOECHST NEWCO III" means DIOGENES Zwanzigste Vermogensverwaltungs GmbH, a
German limited liability company (GmbH) with a registered capital of EUR 25,000
registered with the commercial register of Frankfurt am Main under HR B 48032
and being as of the date hereof a wholly owned subsidiary of Hoechst.
"HOECHST NEWCO II OPTION SHARES" means 60,000 shares in Hoechst NewCo II with no
par value, each share giving a participation right of EUR I and being identical
with the Hoechst NewCo II Shares.
"HOECHST NEWCO II SHARES" means all of the issued and outstanding shares in
Hoechst NewCo II as of the Closing Date.
"HOECHST NEWCO III SHARES" means all of the issued and outstanding shares in
Hoechst NewCo III as of the date when such shares are transferred to Investor
NewCo upon exercise of the Counter-Call Option or Counter-Put Option.
"IAS" means International Accounting Standards in effect as of the date of the
related financial statements.
"INVESTOR NEWCO" means CORNELIA Verwaltungsgesellschaft mbH, a German limited
liability company (GmbH) with a registered capital of EUR 25,000 registered with
the commercial register Frankfurt am Main under HRB 50040.
"LIEN" means any lien, pledge, mortgage, deed of trust, security interest,
charge, option, right of first refusal, easement, servitude, transfer
restriction or other similar limitation whatsoever.
"MATERIAL MESSER COMPANIES" means the Companies listed in EXHIBIT B.
"MESSER FOREIGN HOLDING" means Messer International GmbH, a wholly owned
subsidiary of MGG.
"MESSER GROUP" means all the Messer Group Companies together.
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"MESSER GROUP COMPANIES" means MGG, Messer Foreign Holding and the companies
listed in EXHIBIT C.
"MESSER REAL ESTATE" means Material Messer Owned Real Property and all real
estate that is on or was prior to the Closing Date occupied by the Messer Group
Companies or their predecessors.
"MGG DESIGNEE" has the meaning given to such term in the China SPA.
"NON-FULLY OWNED" used with respect to any Messer Group Company means any such
company which is neither directly nor indirectly Fully Owned.
"OTHER NON-CONTROLLED COVERED ENTITY" means the entities described as such in
EXHIBIT 4.17.
"PERMITS" means permits, licenses, certificates, accreditations or other
authorizations or consents of Governmental Entities.
"PERMITTED LIENS" means with respect to any real estate or asset any Lien which
(i) is imposed by Applicable Law, or (ii) in case of a security for Financial
Debt, is granted for debt fully reflected in the respective accounts of a
Material Messer Company or (iii) in case of a servitude, easement or similar
limitation, does not materially negatively affect the use of the relevant asset
whereby negative effects already existing on or prior to the date hereof shall
never be regarded as relevant.
"PERSON" means any individual, partnership, joint venture, corporation, limited
liability company, trust, unincorporated organization, Governmental Entity or
other entity.
"SITE" means one or more pieces of land forming a single production or
distribution facility which is used by an Environmental Company as of the
Closing Date.
"SPECIAL FOREIGN COMPANIES" means Messer Group Inc..
"SPECIAL NON-CONTROLLED COVERED ENTITY" means the entities described as such in
EXHIBIT 4.17.
"SOLD COVERED ENTITY" means the entities described as such in EXHIBIT 4.17.
"SUBSIDIARY" means with respect to any Person, a corporation, partnership,
association or other business entity of which (i) if a corporation, a majority
of the total voting power of shares of stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors is at the
time owned or controlled, directly or indirectly, by that Person or one or more
of the other Subsidiaries of that Person or a com-
<Page>
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bination thereof, or (ii) if a partnership, association or other business
entity, a majority of the partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more Subsidiaries of that Person or a combination thereof. For
purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, association or other business entity if
such Person or Persons control the managing board or general partner of such
partnership, association or other business entity.
"TAX" means any (i) German federal, state or local tax within the meaning of
Section 3 of the German Tax Act (ABGABENORDNUNG) and (ii) respective non-German
federal, state or local tax, including for (i) and (ii) any interest, penalties
or additions to Tax or additional amounts with respect to the foregoing.
"TAX AUTHORITY" means any German or non-German Governmental Entity, agency, body
or other regulatory authority that is responsible for the assessment,
administration or collection of any Taxes in any jurisdiction.
"TAX INDEMNIFICATION COMPANY" means any Messer Group Company which is either a
Consolidated Messer Company or a Material Messer Company and all Messer Group
Companies which have their registered seat in India.
"TAX RETURN" means any return, report or similar written statement required to
be filed with any Tax Authority in respect of any Tax.
"TOTAL COMPENSATION" means the Main MGG Purchase Price plus the Hoechst NewCo II
Receivable Purchase Price plus the China Purchase Price; PROVIDED that if the
China SPA will not be consummated, the Total Compensation shall not include the
China Purchase Price. For the purpose of clarity only, the specific elements of
Total Compensation consist of
(i) the Loan Notes (Section 2.7(a)(iii)) in an amount of EUR 281,000,000
(ii) the Deferred Purchase Price (Section 2.7(a)(ii)) in an amount of EUR
153,000,000
(iii) a cash payment at Closing (Section 2.7(a)(i)) in an amount of EUR
34,000,000
((i) through (iii) the Main MGG Purchase Price in the amount of EUR
468,000,000)
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(iv) the Hoechst NewCo II Receivable Purchase Price (Section 2.7(b))in an
amount of EUR 200,000,000
(v) the China Purchase Price (Section 2.5) in an amount of
EUR 32,000,000.
Accordingly, the Total Compensation amounts to EUR 700,000,000.
2. TRANSACTIONS FORMING THE BUSINESS COMBINATION
2.1 CERTAIN DATES. The following dates shall have the following
meanings and shall occur as described:
"FINANCIAL DATE" shall be August 31, 2000 24:00 h at each
jurisdiction affected.
"CLOSING DATE" shall be the fifth (5th) Business Day following
the day at which the conditions set forth in Section 3.1 have
been fulfilled, but not earlier than twenty (20) Business Days
after the notarization of this Agreement, unless otherwise
mutually agreed by Hoechst and Investor NewCo in writing.
2.2 MGG'S PRE-CLOSING RESTRUCTURING. Prior to the execution of
this Agreement, MGG has contributed and transferred the
Special Foreign Companies to the capital of Messer Foreign
Holding on the basis of a contribution agreement, a copy of
which is attached as EXHIBIT 2.2, (the "FOREIGN SUB
CONTRIBUTION AGREEMENT"). MGG shall use reasonable best
efforts to have the capital increase connected with the
Foreign Sub Contribution Agreement registered as soon as
possible with the commercial register (the "FOREIGN STEP-UP").
It is agreed that Hoechst shall have no other responsibility
in relation to the foregoing than give to the extent legally
possible respective instructions to the management of MGG. If
requested by Investor NewCo, MGG agrees to promptly procure a
transfer of the Special Foreign Companies from Messer Foreign
Holding to a newly created special purpose vehicle (including
a VORRATSGESELLSCHAFT). Hoechst and MIG agree to procure the
foregoing.
<Page>
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2.3 [Intentionally left blank].
2.4 CONTRIBUTION AND TRANSFER OF HOECHST-MGG SHARE TO HOECHST NEWCO II.
Promptly after the execution of this Agreement, Hoechst shall
procure a capital increase of Hoechst NewCo II in such an amount
that the stated capital of Hoechst NewCo II will amount to EUR
60,000 and shall subscribe for such new capital. Such capital
increase shall not be effected by a cash payment of Hoechst but
through a contribution in kind. For such purpose Hoechst shall
contribute to Hoechst NewCo II the Hoechst MGG Share, and Hoechst
NewCo II shall accept such contribution of the Hoechst-MGG Share by
executing a contribution agreement substantially as attached as
EXHIBIT 2.4 (the "HOECHST NEWCO II CONTRIBUTION AGREEMENT"). In
addition to the new shares in Hoechst NewCo II, Hoechst shall
receive as consideration for the contribution of the Hoechst-MGG
Share an amount of EUR 200,000,000 which Hoechst NewCo II shall owe
to Hoechst as a loan (the "HOECHST NEWCO II CONTRIBUTION
RECEIVABLE").
Hoechst and Hoechst NewCo II shall initiate all acts and make all
declarations necessary to procure that Hoechst NewCo II's capital
increase shall be registered in the commercial register of Hoechst
NewCo II as soon as possible, but not prior to the fulfillment of
the closing condition set forth in Section 3.1(c).
2.5 SALE OF CHINA INTERESTS(a) At the Closing Date MGG shall execute and
Hoechst shall execute and procure that ACIC executes, an agreement
substantially as attached in EXHIBIT 2.5 hereto (the "CHINA SALE AND
PURCHASE AGREEMENT" or "CHINA SPA") regarding the direct or indirect
sale and transfer to MGG or the MGG Designee (as defined in the
China SPA) of the ACIC Gas Interests (as defined in the China SPA)
and certain other assets of ACIC (the MCCO Assets as defined in the
China Sale and Purchase Agreement). The purchase price to be set
forth in the China Sale and Purchase Agreement shall amount to an
aggregate of
EUR 32 million
(the "CHINA PURCHASE PRICE")
<Page>
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plus V.A.T., if applicable, at the applicable rate
(b) From the date of the China Sale and Purchase Agreement until the
China Closing Date (as defined in the China Sale and Purchase
Agreement) the China Purchase Price shall accrue interest at an
annual rate of 200 basis points above three months EURIBOR,
compounded annually and to be calculated on the basis of 360 days.
At the Closing, Investor NewCo shall deliver to Hoechst an
unconditional guarantee in the amount of the China Purchase Price,
expiring not before the China Drop Date (as defined in the China
Sale and Purchase Agreement) and issued by Investor NewCo (the
"CHINA PURCHASE PRICE GUARANTEE").
(c) Those Exhibits to the China Sale and Purchase Agreement which have
not yet been attached to the draft agreement attached as EXHIBIT 2.5
hereto shall be agreed upon by the Parties prior to the Closing Date
in good faith and in accordance with the facts and principles
relevant to them under the China SPA.
(d) Prior to the Closing Date, the Parties shall (i) agree in good faith
on whether and to what extent any provisions of the draft China Sale
and Purchase Agreement attached as EXHIBIT 2.5 hereto shall, without
being changed in substance, be moved prior to the execution of the
China Sale and Purchase Agreement from the China Sale and Purchase
Agreement into this Agreement or an Annex hereto and (ii) shall, if
so agreed, amend this Agreement accordingly.
(e) In the case of a conflict between the China Sale and Purchase
Agreement and this Agreement with respect to any issue dealt with in
the China Sale and Purchase Agreement, the provisions of the China
Sale and Purchase Agreement shall prevail.
(f) With respect to the allocation and charging of any fees for
Management Services (as defined in the China SPA) Hoechst shall
procure that in the period from the date of this Agreement until
execution of the China SPA, ACIC will allocate and charge such fees
only in accordance with past practice and with the principles and
subject to the provisions set forth in the China SPA, PROVIDED, for
the avoidance of doubt, that
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(i) MGG shall pay
(A) the undisputed amount of the Funding Deficit (as defined
in the China SPA) of RMB 22,8 million (EUR 3,1 million)
on or before January 31, 2001,
(B) the remainder of the Funding Deficit as soon as the
verification procedure provided for in the ninth whereas
clause to the China SPA has resulted in an agreement as
to the amount of such remainder,
which payments shall both account for the cap set forth in
Section 7.2. of the China SPA and
(ii) without limiting any payment obligations of MGG under this
Agreement, until execution of the China SPA, ACIC shall not
call any amount under any guarantee or other enforceable
instrument issued with respect to the payment of fees and
expenses for Management Services by MGG or any Affiliate of
MGG in respect of such amounts, including, but not limited to,
the undertakings of MGG under the letters of MGG to ACIC dated
January 14 and September 13, 2000.
2.6 SHARE LOAN OF HOECHST NEWCO II SHARES TO HOECHST NEWCO III. At the
Closing Date, Hoechst and Hoechst NewCo III shall enter into a share
loan agreement in form and substance as attached as EXHIBIT 2.6 (the
"SHARE LOAN AGREEMENT") under which Hoechst lends to Hoechst NewCo
III the Hoechst NewCo II Shares. The Share Loan Agreement shall
provide for a maturity on January 12, 2002 and shall also provide
that in case of an Aventis Credit Drop and a subsequent extension of
the Call Option Period pursuant to Section 2.8., the maturity date
shall be shifted to the date following the calendar day of the
expiration of the extended Call Option Period.
2.7 SALE OF HOECHST NEWCO II SHARES AND HOECHST NEWCO II CONTRIBUTION
RECEIVABLE TO INVESTOR NEWCO.
<Page>
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(a) At the Closing Date after execution of the Share Loan
Agreement, Hoechst NewCo III shall sell and transfer to
Investor NewCo the Hoechst NewCo II Shares, and Investor NewCo
shall purchase and accept such transfer of the Hoechst NewCo
II Shares by executing a purchase and assignment agreement in
form and substance as attached as EXHIBIT 2.7(a)(1) (the
"HOECHST NEWCO II SHARE PURCHASE AGREEMENT I"). The purchase
price to be included in the Hoechst NewCo II Share Purchase
Agreement I as owed by Investor NewCo as consideration for the
sale and transfer of the Hoechst NewCo II Shares amounts to
EUR 468,000,000
(the "MAIN MGG PURCHASE PRICE");
of which
(i) EUR 34,000,000 are payable at the Closing Date;
(ii) EUR 153,000,000 plus interest (the "DEFERRED PURCHASE
PRICE") are payable as set forth in Section 2.7(d) and
(iii) EUR 281,000,000 are not payable in cash but shall be
payable by way of delivery of one or two loan notes
(collectively the "LOAN NOTES") issued by Investor
NewCo and sellable at their aggregate face amount of EUR
281,000,000 at the Closing or immediately after the
Closing. Such Loan Notes are to be delivered at the
Closing Date, in a form reasonably satisfactory to
Hoechst.
It is acknowledged by the parties that the amount for the Main
MGG Purchase Price takes into account the amount of the
purchase price for the Hoechst NewCo II Contribution
Receivable.
(b) At the Closing Date Hoechst shall sell and transfer to
Investor NewCo the Hoechst NewCo II Contribution Receivable
for a purchase price equal to its face value (i.e., EUR
200,000,000, the "HOECHST NEWCO II RECEIVABLE PURCHASE PRICE")
pursuant to an assignment contract substantially as set forth
in EXHIBIT 2.7(b).
<Page>
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(c) The transfer of the Hoechst NewCo II Shares from Hoechst NewCo
III to Investor NewCo shall be subject to the condition
precedent of the receipt of (i) the Main MGG Purchase Price by
Hoechst NewCo III to the extent due and payable at the Closing
Date and in form of cash and notes as set forth in Section
2.7(a) and (ii) the Hoechst NewCo II Receivable Purchase Price
by Hoechst.
(d) The Deferred Purchase Price in the amount of EUR 153,000,000
is due and payable on the third anniversary of the Closing
Date, including interest thereon at a rate of 350 basis points
above three months EURIBOR, compounded annually and to be
calculated on the basis of 360 days, which interest shall be
paid together with the payment of the principal amount.
However, the Deferred Purchase Price shall become immediately
due and payable upon (A) a sale and transfer, including by
merger, of an equity interest of ACP or the GS Funds in
Investor NewCo which would result in ACP and the GS Funds
together no longer holding the majority of the votes and
equity interests in Investor NewCo (without taking into
account any shares, options, warrants or convertible
securities issued to management or to providers of debt
financing), (B) a sale of all or substantially all assets of
Investor NewCo, (C) any Insolvency of Investor NewCo or (D) a
liquidation of Investor NewCo.
Investor NewCo hereby covenants that until the date the
Deferred Purchase Price plus interest shall have been paid in
full
(i) Investor NewCo shall not make any dividend distributions
and not repay any shareholder loans and shall not grant any
loans except to its Subsidiaries or to the members of the
management of such Subsidiaries or as contemplated by the
Singapore Separation Agreement; PROVIDED that in connection
with a contribution of MIG's newly created interest in Hoechst
NewCo II to Investor NewCo, Investor NewCo may pay as
consideration to MIG one or more cash amounts promptly or at a
later date (including any loans created in connection
therewith and including any repay-
<Page>
-15-
ments of such loans) as reflected in EXHIBIT 4.12(h).
(ii) Investor NewCo shall not make any payments under the Loan
Notes and hereby confirms that such Loan Notes will be junior
to the obligation to pay the Deferred Purchase Price such that
such Loan Notes shall not be paid before Hoechst NewCo III
shall have received the full amount of the Deferred Purchase
Price.
Investor NewCo shall be entitled to prepay the Deferred
Purchase Price at any time without any penalty.
2.8 CALL OPTION, FOR HOECHST NEWCO II OPTION SHARES. Investor NewCo
herewith grants to Hoechst NewCo III the option (the "CALL OPTION")
to require Investor NewCo to sell and transfer to Hoechst NewCo III
the Hoechst NewCo II Option Shares with economic and legal effect on
January 11, 2002. Hoechst NewCo III may exercise the Call Option
from January 01, 2002 until January 11, 2002, or any time before
January 11, 2002 in case of an Insolvency of Investor NewCo, Hoechst
NewCo II or MGG (the "CALL OPTION PERIOD"), PROVIDED that in case of
an Aventis Credit Drop the Call Option Period shall upon request of
Aventis be extended; PROVIDED that such request shall not cause the
Call Option Period to terminate at a date later than ten (10) weeks
after the Aventis Credit Drop has occurred. In case of such an
extension of the Call-Option Period beyond January 11, 2002, all
other periods relating to the Call Option, Counter-Call Option or
Counter-Put Option shall be extended accordingly, including any
payments dates for purchase prices due thereunder and also including
the date upon which the sale and transfer of the Hoechst NewCo II
Option Shares to Hoechst NewCo III hereunder shall become
economically and legally effective.
For the purpose of executing the Call Option, Investor NewCo hereby
irrevocably offers to Hoechst NewCo III to sell and transfer the
Hoechst NewCo II Option Shares within the Call Option Period as set
forth in the share purchase agreement attached hereto as EXHIBIT
2.8(a) (the "HOECHST NEWCO II SHARE PURCHASE AGREEMENT II"), subject
to any necessary antitrust approvals, for a purchase price equal to
the Main MGG Purchase Price (the "CALL OPTION PRICE"). Upon due
exercise of the Call
<Page>
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Option by Hoechst NewCo III, the Call Option Price becomes due and
payable on January 31, 2002, subject to any necessary antitrust
approvals.
Hoechst NewCo III may exercise the Call Option by accepting the
offer of Investor NewCo in writing within the Call Option Period, to
be sent to Investor NewCo any time prior to the expiration of the
Call Option Period, in which case, and only then, the Hoechst NewCo
II Share Purchase Agreement II shall become effective without any
further acts being required, PROVIDED, however, that the Call Option
can only be exercised (i) upon delivery of a certificate to Investor
NewCo set forth in EXHIBIT 2.8(b) and duly executed by the
management of Hoechst, Hoechst NewCo II and Hoechst NewCo III, and
(ii) subject to the following paragraph, the credit rating of
Aventis has not dropped below BBB of Standard & Poor's credit rating
as published by Standard & Poor's on or before December 1, 2001 (an
"AVENTIS CREDIT DROP"). For purposes of delivery of such certificate
Investor NewCo hereby irrevocably authorizes each of Dr. Christof
Jackle of Hengeler Muller Weitzel Wirtz, Bockenheimer Landstrasse
53, Frankfurt and Dr. Walter Henle of Baker & McKenzie,
Theatinerstr. 23, 80333 Munchen, separately as agents of process
to receive and confirm the receipt of the notice of Hoechst NewCo
III to exercise the Call Option and such certificate.
In case of an Aventis Credit Drop the Call Option can only be
exercised by Hoechst NewCo III if Aventis shall have delivered to
Investor NewCo an unconditional bank guarantee (UNBEDINGTE
SELBSTSCHULDNERISCHE BANKGARANTIE) of an internationally recognized
bank securing the rights of Investor NewCo under Section 4.14 in an
amount of the Minimum Damage Amount. If so requested by Hoechst,
Hoechst and Investor NewCo will promptly after an Aventis Credit
Drop negotiate in good faith on an instrument replacing such bank
guarantee as suggested by Hoechst with a view to provide comparable
protection for Investor NewCo.
2.9 COUNTER-CALL OPTION FOR HOECHST NEWCO III SHARES. Hoechst herewith
grants to Investor NewCo the option (the "COUNTER-CALL OPTION") to
require Hoechst to sell and transfer to Investor NewCo the Hoechst
<Page>
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NewCo III Shares with economic and legal effect as of the day of the
exercise of the Counter-Call Option. Investor NewCo may exercise the
Counter-Call Option under the condition that Hoechst NewCo III has
exercised the Call Option. Subject to the foregoing sentence
Investor NewCo can exercise the Counter-Call Option between
January 16, 2002 and January 23, 2002 (the "COUNTER-CALL OPTION
PERIOD"). For the purpose of executing the Counter-Call Option
Hoechst hereby irrevocably offers to Investor NewCo to sell and
transfer the Hoechst NewCo III Shares within the Counter-Call Option
Period under the terms and conditions set forth in the share
purchase and assignment agreement attached hereto as EXHIBIT 2.9(a)
(the "HOECHST NEWCO III SHARE PURCHASE COUNTER-CALL AGREEMENT"),
subject to any necessary EU and US antitrust approvals, for a
purchase price of EUR 25,000 (the "COUNTER OPTION PRICE"). Upon due
exercise of the Counter-Call Option by Investor NewCo, the Counter
Option Price becomes due and payable on January 31, 2002, subject
to any necessary EU and US antitrust approvals. Investor NewCo may
exercise the Counter-Call Option by accepting the foregoing offer
of Hoechst by notarized (German or Basel notary) acceptance deed
(for example in the form substantially as also set forth in
EXHIBIT 2.9(b)) within the Counter-Call Option Period, in which
case, and only then, the Hoechst NewCo III Share Purchase
Counter-Call Agreement shall become effective, without any further
acts being required.
The Counter-Call Option (as well as the Counter-Put Option agreed in
Section 2.10 hereinafter) shall be deemed to be duly and timely
exercised if the acceptance deed has been notarized during the
Counter-Call Option period irrespective of receipt of such deed by
Hoechst or Investor NewCo, as the case may be. The then officiating
notary shall be instructed to promptly deliver a notarized copy of
the respective acceptance deed to the respective other party.
For the avoidance of doubt: In case Hoechst NewCo III exercises the
Call Option, Hoechst NewCo III shall subsequently transfer the
Hoechst NewCo II Option Shares to Hoechst as part of its obligations
under the Share Loan Agreement and Hoechst will have sold and
transferred the Hoechst NewCo II Option Shares to a Subsidiary of
Dresdner Bank (the
<Page>
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"BANK SUB") on the basis of the Forward Sales Agreement I, and the
Bank Sub will have transferred the Hoechst NewCo II Option Shares to
Hoechst NewCo III on the basis of the Forward Sales Agreement II, so
that Hoechst NewCo III is during the Counter-Call Option Period and
the Counter-Put Option Period the sole owner of the Hoechst NewCo II
Option Shares without any remaining obligations under the Share Loan
Agreement or otherwise vis-a-vis Aventis or its Affiliates.
The Counter-Call Option Period shall be shifted if, due to an
Aventis Credit Drop, the Call Option Period is extended pursuant to
Section 2.8. In that case, the Counter-Call Option Period shall
commence 5 days after the expiration of the extended Call-Option
Period and shall expire 12 days after the expiration of the extended
Call Option Period. In such event the Counter-Call Option Price
shall become due and payable twenty days after the expiration of the
extended Call Option Period.
2.10 COUNTER-PUT OPTION FOR HOECHST NEWCO III SHARES. Investor NewCo
herewith grants to Hoechst the option (the "COUNTER-PUT OPTION") to
require Investor NewCo to buy and accept transfer from Hoechst of
the Hoechst NewCo III Shares with economic and legal effect as of
the day of the exercise of the Counter-Put Option. Hoechst may
exercise the Counter-Put Option under the condition that Hoechst
NewCo III has exercised the Call Option and Investor NewCo has not
exercised the Counter-Call Option. Subject to the foregoing sentence
Hoechst can exercise the Counter-Put Option between January 24, 2002
and January 31, 2002 (the "COUNTER-PUT OPTION PERIOD"). For the
purpose of executing the Counter-Put Option Investor NewCo hereby
irrevocably offers to Hoechst to buy and accept transfer of the
Hoechst NewCo III Shares within the Counter-Put Option Period under
the terms and conditions set forth in the share purchase and
assignment agreement set forth in EXHIBIT 2.10(a) (the "HOECHST
NEWCO III SHARE PURCHASE COUNTER-PUT AGREEMENT"), subject to any
necessary EU and US antitrust approvals, for a purchase price equal
to the Counter Option Price (the "COUNTER-PUT OPTION PRICE"). Upon
due exercise of the Counter-Put Option by Hoechst, the Counter
Option Price becomes due and payable on January 31, 2002, subject to
any necessary EU and US antitrust approvals. Hoechst may exercise
the Counter-Put Option by accepting the forego-
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ing offer of Investor NewCo by notarized (German or Basel notary)
acceptance deed (for example in the form substantially as set forth
in EXHIBIT 2.10(b)) within the Counter-Put Option Period, in which
case, and only then, the Hoechst NewCo III Share Purchase
Counter-Put Agreement shall become effective without any further
acts being required.
The Counter-Put Option Period shall be shifted if, due to an Aventis
Credit Drop, the Call Option Period is extended pursuant to
Section 2.8, and the Counter-Call option Period is consequently
shifted pursuant to Section 2.9. In that case, the Counter-Put
Option Period shall commence 13 days after the expiration of the
extended Call Option Period and shall expire 20 days after the
expiration of the extended Call Option Period, upon which date the
Counter-Put Option Price shall become due and payable.
2.11 SUMMARY OF STEPS. The steps described in Sections 2.2 through 2.10
may be summarized for illustration purposes as follows:
<Table>
<Caption>
- --------------------------------------------------------------------------------------------------
SECTION IN
NO. TIME ACTION AGREEMENT
- --------------------------------------------------------------------------------------------------
1 In 2000 and before Closing Step-up of Special Foreign 2.2
Date Companies by contribution to
Messer Foreign Holding.
- --------------------------------------------------------------------------------------------------
2 Before Closing Date Contribution by Hoechst of 2.4
Hoechst-MGG Share to Hoechst
NewCo II.
- --------------------------------------------------------------------------------------------------
3 Closing Date Execution of China SPA; delivery 2.5
of China Purchase Price
Guarantee.
- --------------------------------------------------------------------------------------------------
4 Closing Date Share loan by Hoechst of Hoechst 2.6
NewCo II Shares to Hoechst
NewCo III.
- --------------------------------------------------------------------------------------------------
5 Closing Date Sale and transfer by Hoechst 2.7
NewCo III of Hoechst NewCo II
Shares and by Hoechst of claims
from Hoechst NewCo II
Contribution Receivable to
Investor NewCo; partial
"payment" of Main MGG
Purchase Price; and payment of
Hoechst NewCo II Receivable
Purchase Price.
- --------------------------------------------------------------------------------------------------
<Page>
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<Caption>
- --------------------------------------------------------------------------------------------------
SECTION IN
NO. TIME ACTION AGREEMENT
- --------------------------------------------------------------------------------------------------
6 Closing Date Execution of Forward Sale 3.1(b)
Agreements I and II.
- --------------------------------------------------------------------------------------------------
7 Closing Date Payments by Hoechst for Covered 4.17(m)
Guarantees.
- --------------------------------------------------------------------------------------------------
8 Until January 11, 2002 (subject Possible exercise by Hoechst 2.8
to extension of Call Option NewCo III of Call Option; then
Period in case of Aventis transfer of Hoechst NewCo II
Credit Drop) Option Shares by Investor NewCo
to Hoechst NewCo III.
- --------------------------------------------------------------------------------------------------
9 January 12, 2002 (subject to Transfer of Hoechst NewCo II 2.6
extension of Call Option Option Shares from Hoechst
Period to be postponed to first NewCo III to Hoechst pursuant to
day after expiration of Share Loan Agreement.
extended Call Option Period)
- --------------------------------------------------------------------------------------------------
10 January 13, 2002 (subject to Transfer of Hoechst NewCo II 2.9
extension of Call Option Option Shares to Bank Sub and to
Period to be postponed to Hoechst NewCo III pursuant to
second day after expiration of Forward Sale Agreement I and II
extended Call option Period)
- --------------------------------------------------------------------------------------------------
11 Between January 16, 2002 and Possible exercise by Investor 2.9
January 23, 2002 (subject to NewCo of Counter-Call Option
extension of Call Option against Hoechst; then transfer of
Period to commence 5 days Hoechst NewCo III Shares from
after the expiration of the Hoechst to Investor NewCo.
extended Call-Option Period
to expire 12 days after the
expiration of the extended Call
Option Period)
- --------------------------------------------------------------------------------------------------
12 Between January 24, 2002 and Possible exercise by Hoechst of 2.10
January 31, 2002 (subject to Counter-Put Option against
extension of Call Option Investor NewCo; then transfer of
Period to commence 13 days Hoechst NewCo III Shares from
after the expiration of the Hoechst to Investor NewCo.
extended Call Option Period
and to expire 20 days after the
expiration of the extended Call
Option Period)
- --------------------------------------------------------------------------------------------------
13 24 months after Closing Final date for completion of 2.5
China SPA; payment of China
Purchase Price at China Closing
Date.
- --------------------------------------------------------------------------------------------------
14 No later than the third Payment of Deferred Purchase 2.7(d)
anniversary of the Closing Price
Date
- --------------------------------------------------------------------------------------------------
</Table>
2.12 CLOSING TRANSACTIONS. The closing of the transactions contemplated
by this Agreement to be consummated shall take place on the
respective dates at such time and place as set forth in the
Combination Documents
<Page>
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or as the parties hereto designate in writing. The "CLOSING TIME"
shall be deemed to occur in each jurisdiction affected at 00:01
a.m. (local time) on the respective date.
Following the Closing, each party shall execute any additional
documents or perform such acts or measures as reasonably required by
any other party which are necessary or reasonably advisable to fully
consummate the relevant transactions to be consummated hereunder;
PROVIDED that no party is obliged to assume any particular costs not
otherwise contemplated in this Agreement as a result of the
foregoing.
3. CONDITIONS TO CLOSING
3.1 CONDITIONS TO THE PARTIES' OBLIGATIONS. The obligation of the
parties hereto to consummate the transactions contemplated by this
Agreement to be performed on the Closing Date is subject to the
satisfaction of the following conditions (each of which -- except
for the condition stated in (c) below -- may be partially or
entirely waived by all the parties hereto in their sole discretion
with respect to the respective party's obligation to close) as of
the Closing Date; PROVIDED, however, that the closing conditions set
forth (i) in para. (b), (f), (g), (h), (j), (l) (m), (n) and (o) of
this Section 3.1 shall only be for the benefit of Investor NewCo,
and (ii) in para. (k) and (p) of this Section 3.1 shall only be for
the benefit of Hoechst.
(a) The relevant parties shall have executed each of the Ancillary
Agreements.
(b) Each of Hoechst and Hoechst NewCo III shall have executed
forward sale agreements with Bank Sub (or any other
internationally recognized bank) substantially as attached in
EXHIBIT 3.1(b)(i) in case of Hoechst (the "FORWARD SALE
AGREEMENT I"), and in EXHIBIT 3.1(b)(ii) in case of Hoechst
NewCo III (the "FORWARD SALE AGREEMENT II"), as a result of
which Hoechst NewCo III will receive the Hoechst NewCo II
Shares two days after the expiration of the Call Option
Period. Such agreements
<Page>
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shall be in full force and effect and not terminated as of the
Closing Date.
(c) The transactions contemplated by this Agreement can be
lawfully consummated under Regulation (EU) 4064/89 as amended
(the "EU REGULATION"), and/or EU member state merger control
laws in Germany, Austria and Ireland and the waiting period
applicable to such transactions under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 as amended (the "HSR ACT"),
if applicable, shall have expired or been terminated (such
approvals under the EU Regulation and applicable EU members
states merger control laws and such expiration or termination
under the HSR Act being collectively referred to herein as the
"ANTITRUST APPROVALS").
(d) Each of the parties shall have in all material respects duly
performed and complied with all of its covenants and
obligations in this Agreement required to be so performed or
complied with by the party concerned prior to the Closing
Date.
(e) The capital increase of Hoechst NewCo II resulting from the
execution of the Hoechst NewCo II Contribution Agreement shall
have been registered in the commercial register of Hoechst
NewCo II.
(f) Between the date hereof and the Closing Date, there have not
been one or more occurrences or events out of the usual course
specifically relating to a Messer Group Company, each material
by effect, that have caused or would reasonably be expected to
cause, individually or in the aggregate, an adverse change on
or with respect to the Messer Group and/or the business of the
Messer Group, in each case taking the Messer Group as a whole,
which adverse change would result in a decrease in the Equity
Value of the Messer Group during the period between the date
hereof and the Closing Date by at least EUR 125,000,000;
PROVIDED that a change, development, occurrence or condition
resulting from general economic conditions or in the business
sector in which the Messer Group operates shall not be taken
into
<Page>
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account. For purposes of the foregoing, the "EQUITY VALUE" as
of any particular date means the fair market value of all
shares of MGG. It is acknowledged and agreed that for purposes
of the foregoing the Equity Value of the Messer Group as of
the date hereof amounts to EUR 1,002,000,000 (i.e., 150% of
the Total Compensation without the China Purchase Price). For
purposes of comparing Equity Value as of the date hereof to
Equity Value as of any later date, Equity Value as of both
such dates shall take into account, and assume, the full
implementation of the arrangements and transactions
contemplated by the Combination Documents.
(g) The representations and warranties of Hoechst contained in
Section 5 of this Agreement shall be true and correct in all
respects as of the Closing Date or as of any other date, if
specifically made as of such other date; PROVIDED that the
foregoing condition shall only be deemed not satisfied if the
aggregate Losses arising out of or resulting from, or which
could reasonably be expected to arise of or result from, all
such representations and warranties which turn out not to be
true and correct as of the dates they were given -- determined
without deducting or otherwise taking into account any
applicable De Minimis Amount or the Threshold -- exceed EUR 50
million.
(h) No Insolvency, as defined hereinafter, shall have occurred
with respect to any of the Messer Group Companies listed in
EXHIBIT 3.1(h) and none of the Messer Group Companies listed
in EXHIBIT 3.1(h) shall have become insolvent, as defined
hereinafter. "INSOLVENCY" means bankruptcy or composition
proceedings have been applied for or such application has been
rejected due to lack of assets or circumstances exist which
would compel such proceedings. "INSOLVENT" means in respect of
the respective company that (i) it is unable to pay debts as
they fall due or it suspends making payments on its debts,
(ii) a moratorium is declared or otherwise occurs in respect
of any of/all or any class of its indebtedness, (iii) the
commencement of formal negotiations with creditors with the
objective to generally reschedule indebt-
<Page>
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edness by reason of actual or anticipated financial
difficulties, (iv) its shareholders take any steps or legal
proceedings are commenced in relation to its winding-up,
liquidation, dissolution or reorganization or any analogous
procedure in any jurisdiction if such proceedings have not
been discharged on or before the Closing Date, or (v) it or
its shareholders take any steps or legal proceedings are
commenced in relation to the appointment of a liquidator,
receiver, administrator, administrative receiver, compulsory
manager or other similar officer in respect of the relevant
company or any of its material assets if such steps or
proceedings have not been terminated or discharged on or
before the Closing Date.
(i) [intentionally left blank]
(j) Hoechst shall have delivered to Investor NewCo an
unconditional guarantee of Aventis, substantially as set forth
in EXHIBIT 3.1(i), accompanied by a legal opinion rendered by
Shearman & Sterling (Paris), in form and substance reasonably
acceptable to Investor NewCo.
(k) Hoechst shall have received the China Purchase Price
Guarantee.
(l) Hoechst, Aventis, MIG, MGG, Investor NewCo and certain special
purpose vehicles shall have executed a Formation, Funding and
Shareholders' Agreement relating to Singapore Syngas Pte. Ltd.
and Messer Singapore Pte. Ltd. (the "SINGAPORE SEPARATION
AGREEMENT") substantially as set forth in EXHIBIT 3.1(l).
(m) Investor NewCo shall not have reasonably determined that the
representations and warranties contained in Section 5.20 are
not true and correct in any respect, either when made or as of
the Closing Date.
(n) No event or development shall have occurred, and no
information shall have come to the attention of Investor
NewCo, which causes Investor NewCo to reasonably conclude that
there is a reasonable likelihood that the investigation
referred to in EXHIBIT D will result in the indictment or
criminal or civil prosecution
<Page>
-25-
(including the entry of any guilty plea, consent decree or
similar resolution) of any Messer Group Company or any current
officer or director of any Messer Group Company.
(o) As of the Closing Date, no Messer Group Company, Aventis China
Company or ACIC (to the extent related to the China
Interests) shall be involved, directly or indirectly, in any
activity (other than the business activities of certain Messer
Group Companies in Cuba) which, following consummation of the
transactions contemplated by the Combination Documents, would
constitute a violation on the part of any Material Messer
Company, Investor NewCo or any shareholder of Investor NewCo,
of the laws of the United States by virtue of Investor NewCo
being controlled by an entity that is organized in and subject
to the jurisdiction of the United States and, if applicable,
Investor NewCo or its appropriate Affiliate having failed to
obtain any required authorization or license so that they can
lawfully consummate the transactions contemplated herein
(other than the China SPA) under the laws of the United
States. It is understood that Investor NewCo and MGG will not
be obliged to consummate the China SPA if at the China Closing
Date this condition is not satisfied with respect to the
transactions contemplated by the China SPA.
(p) Hoechst shall have received one or more commitments of one or
more internationally recognized financial institutions, as
referred to and further described in Section 4.18, reasonably
satisfactory to Hoechst.
3.2 NON-FULFILLMENT OF CLOSING CONDITIONS. If the non-fulfillment of any
closing condition results from, or may be attributable to, a breach
by any party of any representation and warranty or covenant or
obligations hereunder, then such breaching party shall not be
entitled to the benefit of this condition in respect of such consent
or approval. No party is entitled to refuse to consummate or to
delay the consummation of any of the transactions contemplated
hereunder for any reason other than the non-satisfaction of any
conditions made for its benefit, all as set forth in Section 3.1;
PROVIDED that Hoechst's and Hoechst NewCoIII's respective
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obligations are subject to the receipt of the portion of the Total
Compensation by Hoechst and Hoechst NewCo III which is due at the
Closing Date, respectively.
3.3 EXEMPTION OF CERTAIN TRANSACTION. If and to the extent the
transactions to be performed on the Closing Date cannot be lawfully
performed under the laws and regulations of specific countries
outside the EU and the US due to merger control proceedings or other
regulatory requirements despite the fulfillment of all closing
conditions set forth in Section 3.1, the transactions to be
performed on the Closing Date shall be performed to the maximum
extent legally possible. The parties shall in such case agree on all
appropriate measures to comply with such requirements including
"hold separate" arrangements so that the affected countries can be
exempted for the time being (until consummation is permitted) from
the consummation of the remaining transaction. Hoechst shall comply
with all reasonable requests of Investor NewCo as to the form and
structure of such hold separate structure or any alternative
mechanism or arrangement if and to the extent it does not lead to
additional costs or liabilities of Hoechst. If the respective
requirements are not met ten (10) months after the Closing Date,
each of Hoechst and Investor NewCo can request a sale of the Messer
Group Companies concerned to a third party, which sale shall be
effected to the extent legally permissible in accordance with the
instructions reasonably given by Investor NewCo. The proceeds of
such sales shall be transferred by the Seller to MGG or such other
companies as instructed by Investor NewCo net of taxes and fees and
other expenses made. The foregoing shall not delay the Closing Date
and the obligation of Investor NewCo to pay or procure the payment
of the portions of the Total Compensation which are due at the
Closing Date.
3.4 MAC DETERMINATION AND BREACH OF REP DETERMINATION. In the event that
Investor NewCo determines that the condition set forth in
Section 3.1(f) has not been satisfied, it shall promptly notify
Hoechst of such determination and provide Hoechst with a written
statement briefly setting forth the basis for such determination
(a "MAC DETERMINATION NOTICE"). In the event that Hoechst disagrees
with such determination, it shall within five (5) Business Days of
its receipt of such notice and statement from In-
<Page>
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vestor NewCo, notify Investor NewCo of such disagreement and provide
Investor NewCo with a statement briefly setting forth the basis for
such disagreement (a "MAC DISPUTE NOTICE"). Such disagreement shall
then promptly be submitted for resolution to UBS Frankfurt
Investment Banking. In the event UBS is not prepared to act
hereunder including to comply with the timetable provided
hereinafter, Hoechst may propose an alternative investment bank,
reasonably acceptable to Investor NewCo, to replace UBS. Such
investment bank firm shall be directed to make a determination
within fifteen (15) Business Days after engagement of whether the
condition set forth in Section 3.1(f) has been satisfied or not,
and which determination (the "FINAL MAC DETERMINATION") shall be
final and binding upon all parties. The condition set forth in
Section 3.1(f) shall be deemed not to have been satisfied during
the period between the delivery of a MAC Determination Notice and
the delivery of the Final MAC Determination. Following the delivery
of the Final MAC Determination, (a) if the condition set forth in
Section 3.1(f) has been determined to have not been satisfied,
this Agreement may be terminated pursuant to Section 10.1(a)
subject to the terms and conditions of such provision, and (b) if
the condition set forth in Section 3.1(f) has been determined to
have been satisfied, it shall for all purposes be deemed to have
become satisfied at the date the Closing Date would have otherwise
occurred without regard to proceedings set forth in this Section
3.4. In the event that following delivery of a MAC Determination
Notice, Hoechst fails to deliver a MAC Dispute Notice within the
time period specified above for that purpose, the condition set
forth in Section 3.1(f) shall be deemed for all purposes to have
not been satisfied, and either party may thereafter terminate this
Agreement pursuant to Section 10.1(a), subject to the terms and
conditions of such provision. Until the Final MAC Determination has
been rendered neither party is permitted to terminate this
Agreement according to Section 10.1(a). If Investor NewCo
wrongfully alleged a non-satisfaction of the condition set forth in
Section 3.1(f), the Closing Drop Date shall be postponed for a
period of five (5) Business Days after the Final MAC Determination,
if this is after the Closing Drop Date, and the parties shall close
the transactions contemplated to be closed at the Closing Date
before any such new Closing Drop Date if all other closing
conditions are fulfilled as provided for in this Agreement; PROVIDED
however that the Closing Drop Date shall not be postponed be-
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yond May 15, 2001. The cost of the investment bank shall be
allocated by applying Section 91 German Civil Procedure Code
accordingly. Advance payments to the investment bank firm shall be
made by Hoechst and Investor NewCo in equal amounts.
The foregoing shall apply, MUTATIS MUTANDIS, in case of a dispute
between the parties whether the closing condition set forth in
Section 3.1(g) is fulfilled or not; PROVIDED that the breach must
be determined by a law firm to be nominated by the investment bank.
4. COVENANTS
4.1 GENERAL. Subject to the terms of this Agreement and without limiting
the obligations of the parties specified otherwise in this
Agreement, each party shall perform its obligations hereunder and
shall exert best efforts to cause each of the conditions set forth
in Section 3.1 to be satisfied as soon as possible; PROVIDED that
except as specifically provided herein, Hoechst and MIG shall not be
obliged to exert any efforts with respect to the business or
financial situation of the MGG Group or with respect to
Section 3.1(o), and further PROVIDED that the obligations of
Investor NewCo with respect to the conditions in Sections 3.1(c)
and 3.1(p) are limited to what is set forth in Sections 4.9 and
10.2, respectively, except if expressly agreed otherwise. Hoechst
shall procure that the Ancillary Agreements will be timely
executed and use reasonable best efforts to have such agreements
implemented by respective registrations at the respective commercial
registers, if applicable, so that the Closing Date will not be
delayed. No party shall have any right to delay or refuse the
Closing for any reason other than the non-fulfillment of the
conditions set forth in Section 3.1. In particular, in no event
shall an improvement or deterioration of the Gas Business, nor
events affecting the Gas Business be a reason to delay or refuse
the Closing, all except otherwise provided for in Section 3.1(f),
3.1(g) and 3.1(h) above. Furthermore, other than as provided in
Section 3.1(c) and 3.1(o) any missing consent, approval or
authorization of, permit from, or declaration, filing or
registration with, any governmental or regulatory authority, or
any other person or entity, required to be made or obtained for
the consummation of this
<Page>
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Agreement with respect to merger control legislation, foreign
investment and foreign securities and exchange legislation shall not
prevent or delay the Closing; Section 3.3 shall remain unaffected.
Notwithstanding the foregoing, the parties shall cooperate in good
faith to obtain all required approvals of governmental authorities
and agencies as well as of third parties (including banks or
co-shareholders in Messer Group Companies) to consummate the
transaction contemplated hereunder.
4.2 COVENANTS OF HOECHST AND MIG. Hoechst and MIG have given certain
instructions to the management (GESCHAFTSFUHRUNG) of MGG by letter
dated September 5, 2000; a copy of such letter is attached as
EXHIBIT 4.2. Such instructions shall not be revoked or changed prior
to the Closing Date. Hoechst has not granted and shall not grant any
consent which might be required for any measures under such
instruction without the prior written consent of Investor NewCo
which shall not be unreasonably withheld or delayed. If and to the
extent Hoechst believes that applicable law may be violated with
respect to a specific matter requiring consent of Investor NewCo,
the parties will discuss the matter in good faith with a view to
come to mutually acceptable solutions.
If Hoechst or MIG become aware that such instructions have not been
or are not followed, they shall promptly inform Investor NewCo and
shall undertake all reasonable steps to ensure that these
instructions are being followed. For the avoidance of doubt: Nothing
contained in this Section 4.2 shall be construed as an obligation of
Hoechst or MIG to actively manage the Gas Business.
Furthermore, it is agreed that Hoechst may unilaterally procure
(without assuming a respective obligation) that MGG may undertake
appropriate activities including the contribution of cash to avoid
an Insolvency of the Messer Group Companies referred to in EXHIBIT
3.1(h) or such companies becoming Insolvent.
4.3 NEGATIVE COVENANTS OF HOECHST. Hoechst shall procure that MGG has
not made and shall not make any dividend distributions after the
Financial Date up to the Closing Date.
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4.4 HOECHST NOMINEES. Upon request by Investor NewCo Hoechst shall cause
all members of the supervisory board of MGG and of the shareholders'
committee of MGG and of the corporate bodies of the Messer Group
Companies, if any, to resign as of the Closing Date if legally
possible, otherwise with effect as soon as possible, all to the
extent such persons are nominated by Hoechst and such persons are
not employees of the Messer Group Companies.
4.5 ACCESS AND INFORMATION. Hoechst and MIG shall procure to the extent
legally permissible under applicable anti-trust laws that after the
signing of this Agreement through the Closing Date, Investor NewCo
and its representatives and advisors shall have regular access to
the top management of MGG to receive updates of important new
developments relating to the industrial gas market or the Gas
Business which are reasonably expected to be of potential interest
for Investor NewCo. In addition, such top management of MGG shall be
instructed by Hoechst and MIG to grant further access to information
of the Gas Business and the financial position of MGG and, as may
be, assistance reasonably requested by Investor NewCo from time to
time (to include all information financial or otherwise, and all
(whether audited or unaudited) interim and/or final accounts
required for a high yield or other financing including such top
management's assistance with syndication, marketing and
registrations at a stock exchange and the execution or release of
any security documentation, subject to customary confidentiality
obligations. It is understood that no access granted to Investor
NewCo hereunder shall unduly interfere with the business operations
of the Messer Group Companies.
4.6 FINANCIAL STATEMENTS 2000. The parties are in agreement that the
Financial Statements 2000 shall be prepared in accordance with
Applicable Law and IAS including a reconciliation into U.S. GAAP for
the consolidated financial statements and with Applicable Law for
the individual financial statements on a basis consistent with the
respective financial statements prepared for the 1999 financial
year. The parties acknowledge that according to MGG management MGG
has to write down the book value of certain Messer Group Companies
as further described in EXHIBIT 4.6 with effect as of December 31,
2000 (the "WRITE-DOWNS")
<Page>
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and will use reasonable best efforts that such Write-Downs and the
Foreign Sub Contribution Agreement as consummated pursuant to
Section 2.2 will be sustained in connection with the preparation and
audit of the Financial Statements 2000, as permitted by Applicable
Law. Subject to the timing of the Closing Date, each party agrees to
use its reasonable best efforts that such Write-Downs and the
profits resulting from the Foreign Sub Contribution Agreement will
be accepted as appropriate (not too high and not too low) by the
Company's statutory auditor. The Parties agree that it was not
required to make the Write-Downs earlier than in the Financial
Statements 2000; therefore, the non-inclusion of the Write-Downs in
the Financial Statements 1999 shall not constitute a violation of
the representation in Section 5.5 and 5.6. Furthermore, any time
prior to Closing Hoechst and MIG will keep Investor NewCo fully
informed and will cooperate (including with respect to certain
disclosures which may be reasonably requested in connection with the
Financing), if reasonably required by Investor NewCo, in connection
with the preparation and audit of the Financial Statements 2000, and
any time after the Closing Investor NewCo and MIG will VICE VERSA
keep Hoechst fully informed and cooperate with Hoechst. After the
Closing Investor NewCo shall procure that the MGG Group delivers all
financial documentation reasonably required by Aventis for its
financial reporting and relating to the period up to the Closing
Date.
4.7 BUSINESS YEAR. Prior to Closing, Hoechst and MIG shall use
reasonable best efforts to change the business year of MGG and
Hoechst NewCo II (subject to Section 4.12(a)) if and as requested by
Investor NewCo, to a term to be proposed by Investor NewCo.
4.8 COVENANTS OF INVESTOR. Reference is made to the Equity Commitment
Letters delivered by GS Capital Partners 2000, L.P. and certain
affiliated funds (collectively the "GS FUNDS"), Allianz AG and
Allianz Capital Partners GmbH as of the date of notarization of this
Agreement, and copies of such letters are attached hereto for
evidence purposes only as EXHIBIT 4.8. Investor NewCo hereby agrees
to procure that the GS Funds will deliver a legal opinion as and
when contemplated by the Equity
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Commitment Letter of the Fund which legal opinion shall be
reasonably acceptable to Hoechst.
4.9 ANTITRUST REGULATORY APPROVALS.
(a) Each party shall, without undue delay and as promptly as
practicable, but in any event within the required statutory
periods, and in order to facilitate prompt consummation of the
transactions contemplated hereby, file or cause to be filed
with any antitrust authorities any notifications required to
be filed under any laws or regulations that are applicable to
the transactions contemplated hereby (collectively, the
"ANTITRUST FILINGS"). Antitrust Filings that are not required
to be made personally by any of the parties shall be made by
Investor NewCo. The parties shall diligently cooperate to (i)
make the Antitrust Filings each at their respective costs
without undue delay, and (ii) respond to any requests for
additional information made by any applicable antitrust
authorities in a timely, complete and correct manner.
(b) Investor NewCo shall use every reasonable effort (including,
without limitation, payment of any required fees) to (i)
obtain promptly all consents of any applicable antitrust
authority necessary for the Closing (except for such consents
the failure of which to obtain would not prevent or materially
delay the Closing); (ii) avoid the issuance of, or to have
vacated or terminated, any decree, order, or judgment of any
anti-trust authority or court that would restrain, prevent or
delay the Closing, including without limitation defending
through litigation on the merits any claim asserted in any
court by any party; PROVIDED that neither party shall be
obligated to comply with any conditions imposed by any
antitrust authority except for the obligation to comply with
anything that relates to shareholder rights within Investor
NewCo (i.e., adjustments to the individual shareholder rights
of Allianz Capital Partners GmbH or the GS Funds).
(c) Each party shall promptly notify the other parties of any
material communication to that party from any applicable
antitrust
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authority and consult with the other parties regarding any
proposed communication to an applicable antitrust authority.
Each party shall consult with the others regarding any meeting
with any applicable antitrust authority in respect of any
filings, investigation or other inquiry, and to the extent
appropriate give the other parties the opportunity to attend
and participate thereat. Subject to the joint defense
privilege, each of the parties will coordinate and cooperate
fully with the others in exchanging such information (either
directly or through counsel and except for business secrets)
and providing such assistance as the others may reasonably
request in connection with the foregoing and in seeking early
termination of any applicable waiting periods under the HSR
Act and the EU Regulation or in connection with other
consents. The parties and their respective representatives
shall exchange copies of correspondence, filings or
communications (or memoranda setting forth the substance
thereof) between such party or any of its representatives, on
the one hand, and any applicable antitrust authority or
members of its staff, on the other hand, with respect to this
Agreement and the transactions contemplated hereby.
(d) It is being understood and agreed that the respective
Antitrust Filings shall in any event include a full
description of the participation and partnership relation
regarding Investor NewCo and of the totality of transactions
agreed upon hereunder, including the transaction steps to be
implemented in 2002, and any antitrust approvals shall, to the
extent reasonably possible, include the possible transactions
in 2002 (i.e., Call Option and Counter-Call Option or
Counter-Put Option, Forward Sale Agreements I and II),with a
view to avoid, to the extent possible, any such further
antitrust approvals necessary to consummate such transactions
in 2002.
4.10 PENSIONSKASSE IN GERMANY. With respect to the Pensionskasse of
Hoechst, which is a multiple-employer pension plan, currently
participating employees of the Messer Group (the "GERMAN
PARTICIPATING EMPLOYEES") will be allowed in accordance with the
statutes of the Pension-
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skasse to continue their participation in this plan. This applies as
long as the German Participating Employees are employed by the
Messer Group. Any future new hires of Messer Group Companies
headquartered in Germany will also be allowed to join the
Pensionskasse. In case Investor NewCo, after the Closing Date, wants
to terminate such membership or offer participation in another
pension plan to the German Participating Employees, it is understood
that as at such termination date (i) all accrued pension benefits
will be maintained by the Pensionskasse (AUSSERORDENTLICHE
MITGLIEDSCHAFTEN) and (ii) no assets will be transferred into any
successor pension plan. For the avoidance of doubt: The foregoing is
subject to the provisions of the Pensionskasse, as amended from time
to time, and in particular if the employment terminates before
retirement, the regulations provided in the statutes of the
Pensionskasse shall apply.
4.11 [intentionally left blank]
4.12 COVENANTS OF INVESTOR NEWCO. With a view to protect the economic
interests of Hoechst and Hoechst NewCo III with respect to a
potential exercise of the Call Option, Counter-Call Option or
Counter-Put Option, Investor NewCo hereby agrees as follows and to
procure as follows for the time between the Closing Date and the
exercise of the Call Option and, if still under its control, until
the exercise of the Counter-Call Option or the Counter-Put Option or
until the date the Call Option can no longer be exercised:
(a) The corporate charter of Hoechst NewCo II will not be amended
in any material respect without the earlier written consent of
Hoechst which consent shall not be unreasonably withheld or
delayed except for (i) the amendments set forth in EXHIBIT
4.12(a) and (ii) any increases of Hoechst NewCo II's stated
capital in connection with a contribution in kind of all
shares in MGG held by MIG against shares and potentially a
loan receivable to compensate the Hoechst NewCo II
Contribution Receivable (not permitted are capital increases
through creation of GENEHMIGTES KAPITAL or BEDINGTES KAPITAL);
PROVIDED that as a re-
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sult of such contribution by MIG the Hoechst NewCo II Option
Shares shall represent at least 66.2/3% of the registered
capital of Hoechst NewCo II. It is agreed that Investor NewCo
may procure a change of the fiscal year of Hoechst NewCo II;
PROVIDED that as of December 31, 2001, the fiscal year of
Hoechst NewCo II shall again be equal to the calendar year.
(b) Hoechst NewCo II shall not dispose of or encumber in any way
the Hoechst-MGG Share; PROVIDED that Hoechst NewCo II may
pledge or otherwise encumber the Hoechst-MGG Share with all
enforcement rights resulting therefrom as collateral for any
borrowings of Hoechst NewCo II, MGG or their Subsidiaries, and
further PROVIDED that Hoechst NewCo II may transfer its shares
in MGG to one or more of Hoechst NewCo II's directly or
indirectly wholly owned Subsidiaries which must remain wholly
owned until the expiration of the Counter-Put Option Period.
(c) Investor NewCo shall not dispose of or encumber in any way the
Hoechst NewCo II Option Shares.
(d) Hoechst NewCo II shall not enter into any agreement as
provided for in the German Transformation Act (UmwG) or be
liquidated, without the prior consent of Hoechst.
(e) If and to the extent Hoechst NewCo II makes dividend
distributions to Investor NewCo or to any other shareholder in
excess of profits generated during ordinary course of business
by itself, MGG or any of its Affiliates (e.g. profits
resulting from the disposal of interests directly or
indirectly held by Hoechst NewCo II), Investor NewCo shall
procure that any such excess dividends shall be recontributed
to the capital reserves of Hoechst NewCo II in accordance with
Section 272(2) No. 4 Commercial Code (HGB) on or prior to the
beginning of the Call Option Period; PROVIDED that such
recontribution can in any event be made in form of a note
(payment obligation) which will not be due for payment before
the expiration of the Counter-Put Option Period and, if the
Counter-Call Option or Counter-Put Option is exercised, not
before transfer of the Hoechst NewCo III shares to In-
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vestor NewCo, and which note cannot be assigned, pledged or
otherwise encumbered (the "RECONTRIBUTION NOTE"), or by
contributing the Call Option Price or parts thereof.
(f) Investor NewCo shall not make any dividend distributions and
shall not grant any loans except to its Subsidiaries or to the
members of the management of such Subsidiaries or as
contemplated by the Singapore Separation Agreement; PROVIDED
that in connection with a contribution of MIG's newly created
interest in Hoechst NewCo II to Investor NewCo, Investor NewCo
may pay certain consideration to MIG as reflected in EXHIBIT
4.12(h).
(g) MGG shall not be converted into a different legal form.
(h) Investor NewCo shall as of the Closing Date and after giving
effect to the contributions of MIG to Investor NewCo be funded
as outlined in EXHIBIT 4.12(h).
(i) The debt of the Messer Group shall not be increased by more
than EUR 25,000,000 as a result of any dividend distributions
or loans granted to Investor NewCo and/or other direct or
indirect shareholders of Hoechst NewCo II, unless Investor
NewCo recontributes any such dividend distributions or repays
any such loans promptly in a situation where due to the
financial situation of the Messer Group a prudent businessman
would act accordingly.
(j) Investor NewCo and Hoechst NewCo II shall not enter into any
activities which would materially change the current core
business of the Messer Group (divestitures are permitted).
(k) Neither Investor NewCo, nor Hoechst NewCo II, nor MGG, nor any
of its Subsidiaries shall take any measure which would
endanger any existing or necessary future antitrust or other
regulatory approvals relating to the consummation of the
Hoechst NewCo II Share Purchase Agreement II.
Any further restructuring and other measures of the MGG Group,
including as set forth in EXHIBIT 4.12 or the disposals of
Subsidiaries di-
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rectly or indirectly owned by MGG, is permitted and does not require
any consent of Hoechst. Nevertheless, in the event of any material
transactions directly and solely affecting Hoechst NewCo II or
reorganizations of Hoechst NewCo II and not set forth in EXHIBIT
4.12, Investor NewCo shall consult (without any consent requirement)
with Hoechst in advance of any such transaction with a view to avoid
potential damages of Hoechst or Hoechst NewCo III. Subject to
Investor NewCo's obligation to comply with the covenants set forth
in Sections 2.8 and 4.12, Investor NewCo does not assume any
responsibility that the conditions on which the tax ruling for
Hoechst are based are or will be met.
4.13 COVENANTS UNDER CONTRIBUTION AGREEMENTS. Investor NewCo hereby
agrees to procure that Hoechst NewCo II fulfills all of its
obligations under the Hoechst NewCo II Contribution Agreement (e.g.,
continuation of book value of the contributed Hoechst-MGG Share).
4.14 NON-FULFILLMENT OF COUNTER-CALL.
(a) If Investor NewCo exercises the Counter-Call Option and, for
whatever reason and irrespective of any fault by Hoechst (OHNE
RUCKSICHT AUF VERTRETENMUSSEN) a 2002 Break-Up Situation
occurs, Hoechst shall have a right to cure the 2002 Break-Up
Situation, including all Losses resulting therefrom, within a
period of forty-five (45) Business Days after receipt of a
notification by Investor NewCo that contains a statement to
the effect that a 2002 Break-Up Situation has occurred and the
alleged Losses resulting therefrom. If Hoechst fails to cure
the 2002 Break-Up Situation including all Losses reasonably
evidenced in said notification, it shall pay a penalty
(VERTRAGSSTRAFE) to Investor NewCo in the amount of 200 % of
the Total Compensation (the "MINIMUM DAMAGE AMOUNT"), unless
and without affecting the validity or enforceability of any
Combination Document (i.e., solely for the purpose of the
Minimum Damage Amount) Hoechst provides for or the parties
agree in good faith on other transactional structures
providing, directly or indirectly, full legal and beneficial
ownership, as set forth in the Hoechst NewCo III
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Share Purchase Agreement, of the Hoechst MGG Share and the
Hoechst NewCo II Option Shares to Investor NewCo or Affiliates
thereof in a manner not causing any damage or other detriment
to Investor NewCo; PROVIDED that the penalty represents the
agreed minimum damage (VEREINBARTER MINDESTSCHADEN) to which
Investor NewCo shall be entitled in such case and that the
payment of such minimum damage shall not preclude Investor
NewCo from requesting compensation for any higher damage
actually suffered; PROVIDED FURTHER that Investor NewCo shall
(upon receipt of the Minimum Damage Amount) re-transfer to
Hoechst the Hoechst NewCo III Shares together with the Hoechst
NewCo II Option Shares and the Hoechst MGG Share if and to the
extent previously received.
(b) "2002 BREAK-UP SITUATION" means a situation where Investor
NewCo after having exercised the Counter-Call Option, for
reasons other than the lack of antitrust or other regulatory
approvals fails to receive (and retain) full unencumbered
legal and beneficial ownership of the (A) Hoechst NewCo III
Shares, (B) with Hoechst NewCo III having such ownership of
the Hoechst NewCo II Option Shares and (C) Hoechst NewCo II
having such ownership of the Hoechst MGG Share, all as and
when contemplated by the relevant Combination Documents (B and
C except for any encumbrance or other limitation to ownership
which was in place when the Hoechst NewCo II Option Shares
were transferred to Hoechst NewCo III under the Call-Option
Agreement); PROVIDED that a 2002 Break-Up Situation shall not
be deemed to have occurred if and to the extent A, B or C have
not been satisfied as a result of a breach or non-fulfillment
(VERSCHULDENSUNABHANGIG) of any Combination Document by
Investor NewCo.
4.15 NO CHANGE OF FORWARD SALE AGREEMENTS. Hoechst and Hoechst NewCo III
shall procure that neither the Forward Sale Agreement I nor the
Forward Sale Agreement II are amended in a material way or
terminated without the prior written consent of Investor NewCo not
to be unreasonably withheld or delayed.
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4.16 SPECIAL INDEMNIFICATION.
(a) In case of an exercise of the Call Option by Hoechst NewCo
III, Hoechst shall indemnify Investor NewCo for any positive
activities negatively affecting Hoechst NewCo II, MGG or any
of its Affiliates and performed by Hoechst NewCo III, Hoechst
or the Bank Sub as a shareholder of Hoechst NewCo II during
the period starting with the exercise of the Call Option and
ending at the earlier of (i) any transfer of the Hoechst NewCo
III Shares upon exercise of the Counter-Call Option or the
Counter-Put Option to Investor NewCo, as applicable, or (ii)
the expiration of the Counter-Put Option Period if neither the
Counter-Call nor the Counter-Put Option are exercised (the
"INDEMNIFICATION PERIOD").
(b) Hoechst shall indemnify Investor NewCo or Hoechst NewCo III
from any Income Tax liability arising from the granting of the
Call Option by Investor NewCo to Hoechst NewCo III.
(c) If MGG does not receive until December 31, 2001, either
directly or through its 49% interest in Messer Holding
Limited, ownership of an equity interest (including the rights
to exercise its shareholders' rights therein) of 50% minus one
in Bombay Oxygen Corporation Limited as contemplated pursuant
to a settlement with Goyal or an equivalent economical
interest under any new settlement, Hoechst shall indemnify
Investor NewCo for any Losses incurred by MGG up to an amount
of EUR 5,000,000; PROVIDED that Investor NewCo shall procure
that MGG or any of its Subsidiaries assigns to Hoechst upon
payment of any such indemnification for the lack of any direct
or indirect ownership in Bombay Oxygen Corporation Limited any
rights it may have against any Person in connection with or
relating to MGG's alleged shareholding in Bombay Oxygen
Corporation Limited. MGG shall strive to reasonably settle any
outstanding disputes with any Persons relating to the
foregoing and shall pursue its rights in court at the cost of
Hoechst upon reasonable request of Hoechst. Hoechst shall have
the right to fully control any such proceedings including to
select counsel at its choice.
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(d) Hoechst shall indemnify Investor NewCo, subject to the Pro
Rata Principle, for any penalties imposed by any competent
anti-trust authorities upon the Messer Group Companies
specifically relating to (i) alleged illegal agreements for
the supply of industrial and medical gases against Messer
Nederland B.V. in the Netherlands, and (ii) the shareholding
of Messer Austria GmbH in Klara Kohlensaure Ges.m.b.H. & Co.
KG; PROVIDED that (i) Investor NewCo shall procure that
Hoechst shall be in a position to fully control at its own
cost such proceedings initiated by the anti-trust authorities
and subsequent court proceedings including the filing of any
objections (e.g., Hoechst shall be entitled to propose any
outside counsel representing the interests of MGG), and (ii)
Investor NewCo shall procure that MGG shall take any
reasonable steps to mitigate the amount of any penalties
possibly imposed by the anti-trust authorities and shall
cooperate to provide all information necessary or helpful to
conduct such proceeding.
(e) Hoechst shall indemnify Investor NewCo, subject to the Pro
Rata Principle, for any Losses arising out of or relating to
the investigation referred to in EXHIBIT D and any related
proceedings, other than reasonable attorney's fees at
aggregate levels comparable to those incurred by MGG in
connection with such investigation during the four-month
period prior to the date of the execution of this Agreement.
(f) Hoechst shall indemnify MGG against any Losses MGG has
incurred or will incur after the Financial Date in respect of
any liability towards Mr. Ruia or any other current or
previous shareholder of Bombay Oxygen Corporation Limited or
their legal successors, stemming from any misrepresentation
with respect to the shareholding structure of Messer Holding
Limited, British Virgin Islands, if any such misrepresentation
has occurred. Any indemnification payable by Hoechst under
this Section 4.16(f) shall be subject to the provisions set
forth in Section 6.
(g) Hoechst shall indemnify MGG against 1/3 of any Losses MGG or
MG Industries may incur in respect of certain alleged claims
of MG Systems & Welding Inc. against MG Industries relating to
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intra-group receivables and a possible overpayment of a
purchase price for MG Systems & Welding Inc., which claims
amount to an aggregate amount of US$ 2,500,000 (i.e., the
maximum liability of Hoechst hereunder amounts to
US$ 833,000), if and to the extent such claims of MG
Systems & Welding Inc. prove to be valid and enforceable
(if reasonably requested by Hoechst, to be determined by a
non-appealable court-decision.)
4.17 DISPROPORTIONATE GUARANTEE INDEMNIFICATION.
(a) COVERED ENTITIES. EXHIBIT 4.17 shows, as of August 31, 2000,
the Financial Guarantees granted by MGG or any direct or
indirect Subsidiaries of MGG with respect to debt of Non-Fully
Owned Messer Group Companies and certain entities which are no
longer owned by MGG (collectively the "COVERED ENTITIES")
where the portion of the debt guaranteed by an MGG Guarantor
exceeds MGG's direct or indirect percentage equity interest,
if any, in the Covered Entity (the "DISPROPORTIONATE GUARANTEE
SCHEDULE"). Each such guarantee is referred to as a "COVERED
GUARANTEE".
(b) GENERAL RULE. With respect to the Covered Guarantees and the
apportionment of any claims of any holder of such Covered
Guarantees (the "GUARANTEE HOLDER"), solely the rules of this
Section 4.17 shall apply, excluding all other provisions of
this Agreement with respect to indemnifications,
representations and warranties in respect of any such
guarantees. The apportionment of claims under Covered
Guarantees shall distinguish between four different classes of
Covered Entities and shall take into regard the percentage of
MGG's direct or indirect equity interest in such entities as
well as the portion of Financial Debt secured by any Covered
Guarantee as follows:
(c) DEFINITIONS.
(i) MGG or the Subsidiary of MGG which is the guarantor
under a Covered Guarantee is referred to as a "MGG
GUARANTOR".
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(ii) As to each Covered Entity, the Disproportionate
Guarantee Schedule indicates whether such Covered Entity
is deemed to be a Controlled Covered Entity, a Special
Non-Controlled Covered Entity, a Sold Covered Entity or
an Other Non-Controlled Covered Entity.
(iii) As to each Covered Guarantee, the Disproportionate
Guarantee Schedule sets forth the maximum exposure of
the MGG Guarantor under such Covered Guarantee (the
"MAXIMUM GUARANTEED AMOUNT"), which in the case of a
Covered Guarantee relating to a Controlled Covered
Entity or an Other Non-Controlled Covered Entity is
deemed for purposes hereof to be equal to the amount of
debt outstanding as of August 31, 2000 and then
guaranteed by such Covered Guarantee (the "FINANCIAL
DATE EXPOSURE"), and which in the case of a Covered
Guarantee relating to a Special Non-Controlled Covered
Entity or a Sold Covered Entity will equal the amount of
debt that would be outstanding if the debt then
guaranteed by such Covered Guarantee had been drawn
down in full (the "TOTAL EXPOSURE").
(iv) MGG's direct or indirect percentage equity interest, if
any, in each Covered Entity as of August 31, 2000 shall
be the "MGG PERCENTAGE"; as to any Financial Debt that
is subject to a Covered Guarantee the portion (expressed
as a percentage) of the total amount of such Financial
Debt which is subject to the Covered Guarantee shall be
the "GUARANTEE PERCENTAGE"; the amount (expressed as a
percentage) by which the Guarantee Percentage exceeds
the MGG Percentage shall be the "EXCESS PERCENTAGE"; and
the "ADJUSTED EXCESS PERCENTAGE" shall be the Excess
Percentage divided by the Guarantee Percentage For
example: If a Covered Guarantee is with respect to 90%
of a loan of a 60% Subsidiary, the Excess Percentage
would be 30% (90%-60%), and the Adjusted Excess
Percentage would be 33 1/3% (30% /. 90).
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(v) The "COVERED PERIOD" means, (A) with respect to a
Covered Guarantee relating to a Controlled Covered
Entity, the period between August 31, 2000 and the date
which is 18 months following the Closing Date, (B) with
respect to a Covered Guarantee relating to a
Non-Controlled Entity, the period between August 31,
2000 and the date which is 24 months following the
Closing Date, and (C) with respect to the Covered
Guarantees of the Special Non-Controlled Covered
Entities, the period between August 31, 2000 and the
date which is 24 months following the Closing Date, (D)
with respect to a Sold Covered Entity the period between
August 31, 2000 and the date which is 18 months
following the Closing Date; PROVIDED that in any event
for each Covered Entity (except for the Sold Covered
Entities) the Covered Period shall end on the day on
which more than 50 % of MGG's direct or indirect
interest as of the Closing Date in such Covered Entity
is transferred to a third party which is not a
Subsidiary of MGG or Investor NewCo, unless such
transfer is the result of a drag-along right or a
similar right exercised by a Person holding an equity
interest in the Covered Entity.
(d) NOTICE OBLIGATION. In the event that, at any time during the
Covered Period, an MGG Guarantor receives any notice or demand
from the holder of the Covered Guarantee indicating that it
is obligated to make any payment of any nature pursuant to or
in respect of a Covered Guarantee (a "GUARANTEE DEMAND
NOTICE"), Investor NewCo shall procure and MGG shall promptly
notify Hoechst of the receipt of such Guarantee Demand Notice
and provide Hoechst with a copy thereof. As promptly as is
practicable thereafter, Investor NewCo shall procure and MGG
shall provide Hoechst with notice (a "PAYMENT NOTICE") of the
total amount due and to be paid by the MGG Guarantor pursuant
to such Guarantee Demand Notice (the "TOTAL MGG PAYMENT") and
the date upon which such amount is to be paid by the MGG
Guarantor (the "MGG PAYMENT DATE").
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(e) PAYMENTS UNDER COVERED GUARANTEES. On the MGG Payment Date,
Hoechst shall pay to the Guarantee Holder, on behalf of MGG
and in partial satisfaction of MGG's obligation under the
related Covered Guarantee, by wire transfer of immediately
available funds to an account of the Guarantee Holder
designated in the Payment Notice an amount (the "HOECHST
PAYMENT AMOUNT") equal to 66 2/3 % of the Adjusted Excess
Percentage of the lesser of (i) the Total MGG Payment or (ii)
the Maximum Guaranteed Amount; PROVIDED that if the Covered
Guarantee relates to a Special Non-Controlled Entity the
Hoechst Payment shall not exceed the sum of 66 2/3% of the
Adjusted Excess Percentage of the Financial Date Exposure plus
50% of the Adjusted Excess Percentage of the difference
between the Total Exposure and the Financial Date Exposure.
The foregoing is summarized for clarification purposes in the
chart attached as a supplement to EXHIBIT 4.17; PROVIDED that
in case of any conflict, the provisions of this Section 4.17
shall prevail.
Hoechst shall only be obliged to pay the Hoechst Payment
Amount if Investor NewCo and MGG have provided Hoechst with a
written confirmation of MGG
(i) that it believes in good faith after due inquiry that
the Covered Entity (in case of a Controlled Covered
Entity) does not have sufficient cash or cash
equivalents at hand or cash that can be drawn from
existing credit lines to fulfill its payment obligations
against the Guarantee Holder, and
(ii) of MGG that the MGG Guarantor is paying on the MGG
Payment Date the difference between the Total MGG
Payment and the Hoechst Payment Amount to the Guarantee
Holder.
Hoechst may delay such payment to the Guarantee Holder to the
extent that there is less than ten (10) Business Days between
de-
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livery of the Payment Notice and the Payment Date (the "10
BUSINESS DAYS DELAY RULE").
(f) SET-OFF, COUNTERCLAIMS AND INTEREST. The payments required to
be made by Hoechst to any Guarantee Holder pursuant to the
provisions of this Section 4.17 shall not be subject to any
rights of set off or counterclaim between Hoechst, MGG and
Investor NewCo, and if not made when due shall bear interest
at a rate equal to the rate (including any penalty) payable by
MGG to the Guarantee Holder due to the non-payment of Hoechst
(the "APPLICABLE RATE") and such interest shall also be paid
directly from Hoechst to the Guarantee Holder; PROVIDED that
the foregoing shall not be deemed to limit any right of
Investor NewCo to claim damages for any breach by Hoechst of
its payment obligations under this Section 4.17 and provided
further that MGG shall indemnify Hoechst for any interest to
be payable to the Guarantee Holder and being paid by Hoechst
to the Guarantee Holder as a consequence of the 10 Business
Days Delay Rule. It is understood that the MGG Guarantor will
raise any material objections or defenses it determines in
good faith to have and reasonably likely to prevail in court
or otherwise with respect to its obligations under the Covered
Guarantee.
(g) DISPUTES REGARDING PAYMENT OBLIGATION. In the event of any
dispute between MGG and Hoechst relating to the obligation of
Hoechst to pay any Hoechst Payment Amount, Hoechst shall
notwithstanding such dispute make payment to the relevant
Guarantee Holder of such Hoechst Payment Amount in full
subject to the provisions above, and subject to the right of
Hoechst to obtain from such MGG Guarantor repayment thereof
plus interest thereon at the Applicable Rate in the event that
it is determined that such payment was not required to be made
by Hoechst.
(h) CONSEQUENCES OF PAYMENT WITH RESPECT TO SECURED DEBT. Upon
payment by Hoechst, (i) Investor NewCo and MGG shall procure,
if legally possible, that either the Guarantee Holder is
subrogated by Hoechst or the Guarantee Holder assigns directly
to Hoechst that part of its payment claim against the Covered
Entity
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which equals the Hoechst Payment Amount, and (ii) Investor
NewCo shall procure and MGG shall assign, both if legally
possible, that part of its payment claims against the Covered
Entity which results from the payment of the Hoechst Payment
Amount, if any.
(i) STANDSTILL. Hoechst agrees for a period of twenty-four (24)
months after the MGG Payment Date but not for longer than
thirty-six (36) months after the Closing Date (the "STANDSTILL
PERIOD") not to pursue or enforce its payment claims against
the Covered Entity other than as a part of and in conjunction
with any such pursuit or enforcement by MGG. It is further
agreed that to the extent MGG or any Affiliate of MGG injects
new capital (either as equity or shareholder loans) to the
Covered Entity after the MGG Payment Date, such new capital
shall be as between Hoechst and MGG or the applicable MGG
Affiliate senior to the claims of Hoechst against the Covered
Entity in the event (and only then) that as a result of or in
connection with any liquidation, insolvency, bankruptcy, sale
of all or substantially all assets or similar extraordinary
transactions or events Hoechst receives any amount in respect
of such claims in advance at a time when MGG or its applicable
Affiliate is not receiving any repayment of such new capital,
then Hoechst shall pay over to MGG or its applicable Affiliate
all or the appropriate portion of such amount received by
Hoechst. With respect to any Covered Entity, the Standstill
Period shall end on the day on which more than 50 % of MGG's
direct or indirect equity interest as of the Closing Date in
such Covered Entity is transferred to a third party which is
not an Affiliate of MGG or Investor NewCo, unless such
transfer is the result of a drag-along right or a similar
right exercised by a Person holding an equity interest in the
Covered Entity.
(j) INFORMATION RIGHTS. During the Covered Period, MGG will use
its reasonable best efforts to keep Hoechst informed on a
current basis with respect to and to consult with Hoechst
regarding any material developments relating to a Covered
Entity that MGG
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expects are likely to result in its receipt of a Guarantee
Demand Notice; in addition, MGG will provide Hoechst with
information on the equity and available funds of the Covered
Entities to the extent reasonably requested by Hoechst from
time to time.
(k) LEGAL ACTIONS. In the event that MGG or another MGG Guarantor
wishes to pursue any legal action contesting any Guarantee
Demand Notice or the right of any creditor of a Covered
Entity to deliver a Guarantee Demand Notice, Hoechst shall
bear the costs in the proportion of the Hoechst Payment Amount
to the Total MGG Payment; PROVIDED that in such case Hoechst
shall have the right to participate in such proceedings to the
extent legally possible.
(l) AMENDMENTS OF DISPROPORTIONATE GUARANTEE SCHEDULE. In the
event that, at any time following the execution of this
Agreement,
(i) Investor NewCo becomes aware of any obligation, in
existence as of August 31, 2000, of MGG or any direct
or indirect Subsidiary of MGG to guarantee for Financial
Debt of any Non-Fully Owned Messer Group Company (or any
entity no longer directly or indirectly owned by MGG)
that is either not set forth in the Disproportionate
Guarantee Schedule or incorrectly reflected on the
Disproportionate Guarantee Schedule and
(ii) Where, in the case of any Non-Fully Owned Messer Group
Company, as of August 31, 2000, the portion of the debt
so guaranteed (or supported) exceeded the direct or
indirect percentage equity interest of MGG in such
Non-Fully Owned Messer Group Company,
Investor NewCo shall be entitled, by delivery of written
notice to Hoechst, to amend the Disproportionate Guarantee
Schedule to properly include such obligation. Such amendment
shall be deemed to have been effective as of the date of the
execution of this Agreement.
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In the event that any letter of comfort identified in EXHIBIT
4.17 is determined to constitute a legally binding obligation
of MGG or any direct or indirect subsidiary of MGG, such
obligation may be treated by Investor NewCo in the same manner
as an obligation referred to above in this Section (l);
PROVIDED that, to the extent legally possible, Hoechst shall
have the right to participate in any legal proceedings
regarding the determination of the question of whether any
such letter of comfort constitutes a legally binding
obligation.
(m) At the Closing Date, Hoechst shall pay to MGG or the MGG
Guarantor in cash an amount equal to the aggregate amount of
all payments that would have been payable by Hoechst in
respect of Covered Guarantees pursuant to this Section 4.17 at
any time subsequent to August 31, 2000 if the Closing Date had
been August 31, 2000, and MGG or the MGG Guarantor to be
procured by MGG shall assign to Hoechst the appropriate
portion of its related payment claim against the applicable
Covered Entities upon receipt of the respective payment of
Hoechst by MGG.
(n) It is agreed that between Hoechst, MGG and MIG any payments
made by Hoechst to the Guarantee Holder or to the MGG
Guarantor under this Section 4.17 shall be made for the
benefit of Investor NewCo as for the internal relationship
between MIG and the other shareholders of Investor NewCo.
4.18 MONETARIZATION OF LOAN NOTES. Investor NewCo shall use reasonable
endeavors to obtain, prior to the Closing Date, one or more
commitments by one or more internationally recognized financial
institutions, which may include a German Allianz insurance company,
to acquire the Loan Notes for face value without recourse at or
immediately after the Closing Date.
4.19 SINGAPORE.
(a) If and to the extent Texaco Netherland B.V. and/or Dresdner
Bank as facility agent for all relevant banks financing
Singapore
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Pte. Ltd. have not consented to the consummation of the
Singapore Separation Agreement prior to the Closing Date, the
parties shall place each other for the time between the
Closing Date and the date when such consents are finally
granted, economically in the same position as if the Singapore
Separation Agreement had been consummated; PROVIDED that the
parties shall continue to use reasonable best efforts to
obtain any required consents to consummate the Singapore
Separation Agreement.
(b) If and to the extent the consents referred to in Section
4.19(a) can only be obtained upon making adjustments to the
Singapore Separation Agreement, the parties shall in good
faith consider such adjustments. In any event, Hoechst, MGG
and Investor NewCo are prepared to give separate guarantees to
Texaco that they or their appropriate Affiliates will comply
with their funding obligations under the Singapore Separation
Agreement.
4.20 CONTRIBUTIONS BY INVESTOR NEWCO. To the extent Investor NewCo
receives indemnifications from Hoechst NewCo III or Hoechst under
this Agreement (e.g. pursuant to Sections 4, 6, 8 or 9), it shall
forward any such indemnifications into the capital or capital
reserves (with or without consideration) to MGG or grant such
indemnity to MGG as a subordinated shareholder loan (RANGRUCKTRITT
GEGENUBER ALLEN ANDEREN GLAUBIGERN). Such obligation shall expire on
February 28, 2002.
4.21 ADDITIONAL HOECHST SHAREHOLDING IN MESSER EGYPT S.A.E.. If and to
the extent Hoechst owns any shares in Messer Egypt S.A.E., it shall
contribute those shares, upon request of Investor NewCo, into the
capital reserves of MGG or transfer it to any designee of MGG
without any consideration. The consummation of any such contribution
shall not be deemed to be a closing condition under Section 3.1.
5. REPRESENTATIONS AND WARRANTIES OF HOECHST
Hoechst hereby represents and warrants in the meaning of an independent
guarantee to Investor NewCo as of the Closing Date or such other date
specified hereinafter, excluding any other statutory warranty claim, that
the following is
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true and correct, whereby it is understood that any disclosures of events
or documents which (i) are below any materiality threshold set forth in
the respective representations, or (ii) contain additional information not
relevant for the respective representations, all with respect to a
specific disclosure to which such information relate (unless the
disclosure obviously and from its face also affects another
representation), shall not be deemed to alter or in any way affect the
contents of such guarantee, in particular in respect of the materiality
thresholds:
5.1 MESSER GROUP. Hoechst NewCo II is the owner of the Hoechst MGG Share
which represents 66 2/3% of the registered capital of MGG and ACIC
is the owner of all China Interests. EXHIBIT C contains as of the
date of the notarization of this Agreement a correct list of all
Persons except for the Participations in which MGG holds a direct or
indirect shareholding, voting securities or other ownership
interests (including without limitation silent participations)
(collectively "INTERESTS") and the direct or indirect percentage of
such Interest; PROVIDED that such list will be correctly updated as
of the Closing Date to reflect changes after the notarization of
this Agreement.
"PARTICIPATIONS" means unless it is a Material Messer Company (i)
Interests held by MGG as current assets (UMLAUFVERMOGEN), (ii)
Interests held by a Person in which MGG directly or indirectly holds
an Interest of less than 50%, (iii) Interests of less than 25% held
by a Person in which MGG directly or indirectly holds an Interest
exceeding 50%.
Each Messer Group Company (except for the Participations) and each
Material Messer Company is duly incorporated and validly existing
under the laws of its respective jurisdiction of incorporation and
has all requisite corporate power and authority to own or lease its
properties and assets and to carry out its business. As of the date
hereof, no bankruptcy or composition proceedings against any of the
Messer Group Companies (except for the Participations) or any of the
Material Messer Companies has been applied for nor has such
application been rejected due to lack of assets nor are there any
circumstances which would compel the initiation of such proceedings.
The articles, by-laws and commercial register registrations of the
Material Messer Companies in force as of August 31,
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2000 (including amendments which have not been registered) (the
"CORPORATE DOCUMENTS") have been delivered to Investor NewCo before
the notarization of this Agreement, and a correct list of which is
set forth in EXHIBIT 5.1 and such Corporate Documents will be kept
in custody by the officiating notary until June 30, 2002. The
officiating notary is hereby instructed to grant access to such
Corporate Documents to Hoechst and Investor NewCo and to provide
copies to each of them at their respective cost, all upon their
respective request. After June 30, 2002, the officiating notary
shall deliver such Corporate Documents to a Person as jointly
instructed by Hoechst and Investor NewCo.
5.2 CAPITAL STOCK. The authorized and outstanding capital stock of the
Messer Group Companies and all Material Messer Companies (the
"MESSER CAPITAL STOCK") is duly authorized, validly issued and, to
the extent legally required, and subject to Section 5.14 paid in.
The registered capital of MGG is fully paid in. Except as agreed in
this Agreement or otherwise agreed between the parties hereto, there
are no issued or outstanding warrants, options, "phantom" stock
rights, agreements, convertible or exchangeable securities or other
commitments (except for the plans described in Section 5.10(a)(i),
(ii) or in Section 5.12) pursuant to which any of the Material
Messer Companies is or may become obligated to issue, sell,
purchase, return or redeem any of the Messer Capital Stock. The
statements made in this Section 5.2 do not apply to the
Participations.
5.3 NO BREACH. Except as set forth in EXHIBIT 5.3, the execution,
delivery and performance by Hoechst, Hoechst NewCo III, ACIC (to the
extent it is a seller under the China SPA) and MGG of this Agreement
and the other Combination Documents does not and the consummation of
the transactions contemplated herein and therein will not conflict
with or result in a breach of the terms, conditions or provisions of
or constitute a default under their certificate of incorporation or
by-laws or other corporate instrument to which they are subject.
5.4 NO ENCUMBRANCES ON STOCK. The Messer Capital Stock owned by any
Material Messer Company is free of any pledges, attachments,
usufruct,
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transfers for security purposes or similar security charges
(collectively "ENCUMBRANCES") except for Encumbrances (i) which
relate to debt reflected in the accounts of the respective Material
Messer Companies on August 31, 2000 or incurred thereafter in the
ordinary course of business, or (ii) which are imposed by Applicable
Law. Subject to Section 12.1, the Hoechst MGG Share is free of any
Encumbrances.
5.5 FINANCIAL STATEMENTS. The Financial Statements 1999 have been
prepared in accordance with Applicable Law and IAS as consistently
applied and present fairly in all material respects the financial
condition, results of operations and cash flows of the Gas Business
in accordance with IAS for the period ending December 31, 1999,
except for those measures listed in EXHIBIT 5.5. Furthermore, the
audited individual financial statements of such Material Messer
Companies which have been consolidated in the Financial Statements
1999 have been prepared in accordance with Applicable Law and
present fairly in all material respects the financial conditions,
results of operations and cash flows of their business in accordance
with such respective Applicable Law for the period ending on
December 31, 1999. The books and records of the Material Messer
Companies have been in all material respects fully, properly and
accurately kept, do not contain any material inaccuracies or
material discrepancies and are available at the offices of the
respective Material Messer Companies.
5.6 ORDINARY COURSE OPERATION. Except as set forth in EXHIBIT 5.6 or as
contemplated by this Agreement, since January 1, 2000, the Material
Messer Companies have been operated in the ordinary course of
business and there has not been, all unless otherwise agreed by
Investor NewCo,
(a) any waiver of any material right belonging to the Material
Messer Companies which is either indispensable for any
material portion of the Gas Business or which waiver was made
without proper compensation;
(b) to Hoechst's best knowledge, unless provided for in this
Agreement or disclosed in any Exhibit of this Section 5, as of
the date hereof, any extraordinary one-time event having a
negative effect
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in the consolidated financial statements for the year 2000 or
otherwise materializing in the year 2000, of at least EUR
5,000,000 in each individual case, on the Messer Group as a
whole; or
(c) conclusion or termination of any non-arm's-length agreement
with Aventis and its subsidiaries (other than the Messer
Group).
5.7 REAL PROPERTY.
(a) OWNED PROPERTIES. EXHIBIT 5.7(a)(1) attached hereto contains a
list of all real estate (including ERBBAURECHTE) owned by the
Material Messer Companies as of August 31, 2000 (the "MATERIAL
MESSER OWNED REAL PROPERTY"). Except as set forth in EXHIBIT
5.7(a)(2), with respect to each parcel of Material Messer
Owned Real Property, immediately after giving effect to the
Closing, the respective Material Messer Companies shall have
good and marketable title to all such parcels, free and clear
of all Liens, except Permitted Liens and except for
transactions made after August 31, 2000 in the ordinary course
of business.
(b) LEASED PROPERTIES. EXHIBIT 5.7(b) attached hereto contains all
real estate leased by the Material Messer Companies as of
August 31, 2000 involving annual payments in excess of EUR
300,000 in each individual case.
(c) CONDITION OF IMPROVEMENTS. Except as set forth in EXHIBIT
5.7(c), all buildings, structures, fixtures and other
improvements and all components thereof (the "IMPROVEMENTS")
included within the real property described in subsections (a)
and (b) above are, in all material respects, in good
condition and repair, ordinary wear and tear accepted.
It is agreed and acknowledged that the Exhibits relating to this
Section 5.7 do not contain appropriate information with respect to
Material Messer Companies located in South Africa and that such
inappropriate information does not constitute a breach of the
guarantees contained in this Section 5.7; PROVIDED that Hoechst
hereby guarantees that all real estate and improvements used by
Material Messer Companies in South
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Africa are either owned by such companies or leased on the basis of
lease agreements which have a remaining term of not less than two
(2) years from the Closing Date and the terms of which are
substantially consistent with current market terms.
5.8 GAS BUSINESS ASSETS. The Material Messer Companies economically own
(i) as of December 31, 1999 the fixed tangible assets as reflected
in the Financial Statements 1999, and (ii) as of the date hereof the
fixed tangible assets as reflected in the consolidated interim
financial statements of the Messer Group as of June 30, 2000, which
have been submitted to Investor NewCo prior to the date hereof,
except for disposals by the Material Messer Companies in the
ordinary course of business after June 30, 2000 and except for
retentions of title and other customary rights of third parties,
such fixed tangible assets are free and clear of any Liens, with the
exception of Permitted Liens, all unless stated otherwise in EXHIBIT
5.8. The Material Messer Companies either own or have a right to use
all fixed tangible assets (ANLAGEVERMOGEN) reasonably required to
conduct their business as presently conducted. Those assets are in
proper working condition fit to be used for their respective
purposes, normal wear and tear accepted. The guarantees contained in
this Section 5.8 are made as of the date hereof.
5.9 INTELLECTUAL PROPERTY RIGHTS. The Material Messer Companies are
registered holders of all patents, trademarks and other registered
intellectual property rights (GEWERBLICHE SCHUTZRECHTE) listed in
EXHIBIT 5.9 subject to any licenses or other rights granted to third
parties, and to Hoechst's best knowledge as of the date hereof the
processes used and products manufactured, distributed and sold in
the Gas Business do not use (i.e. infringe) in a manner material to
the Gas Business any intellectual property rights and/or know-how in
each case owned by any third parties other than on the basis of oral
or written agreements or except as listed in EXHIBIT 5.9. Except as
listed in EXHIBIT 5.9, third parties have not made any written
allegations to a Material Messer Company as to any infringements by
such Material Messer Company. All necessary fees have been paid,
renewals made and other necessary steps taken for the maintenance of
each of the intellectual property rights listed in EXHIBIT 5.9. To
Hoechst's best knowledge except as disclosed in EXHIBIT 5.9 as of
the
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date hereof no third party is in a material violation of any of the
intellectual property rights owned by the Material Messer Companies.
The guarantees contained in this Section 5.9 are made as of the date
hereof.
5.10 CONTRACTS AND COMMITMENTS.
(a) Except as set forth in EXHIBIT 5.10(a)(i) through EXHIBIT
5.10(a)(xiii) (which Exhibit indicates the pertinent parties
thereto and the dates and amendment dates, if any), with
respect to the Gas Business, no Material Messer Company is on
the date hereof a party to any oral or written:
(i) contract providing for bonuses, options, stock
purchases, deferred compensation or profit sharing in
any such case reasonably to be expected in excess of
EUR 100,000 for a calendar year up to the year 2002;
(ii) plans covering groups of employees providing for
bonuses, options, stock purchases, deferred compensation
or profit sharing;
(iii) contract with respect to the lending or borrowing of
funds (no finance leases) involving more than EUR
2,500,000 in the aggregate and guarantees or similar
enforceable contractual obligations securing such
borrowings (except for aval) by the Material Messer
Companies;
(iv) guarantee or any similar enforceable contractual (except
for aval) obligation involving more than EUR 2,500,000
in the aggregate for any obligations of any Persons;
(v) license or royalty agreement other than listed in
EXHIBIT 5.9 involving payments of more than EUR
1,250,000 per year;
(vi) contract or group of related contracts with the same
party for the purchase or sale of commodities, supplies,
products or other personal property or for the
furnishing or re-
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ceipt of services having a sales price in excess of
EUR 10,000,000 per year;
(vii) contract not otherwise disclosed in EXHIBIT 5.10 and
containing a payment obligation of a Material Messer
Company in an individual year in excess of EUR
10,000,000 until the year of its earliest termination by
the respective Material Messer Company;
(viii)contract that would prohibit any Material Messer
Company from freely engaging in the Gas Business
anywhere in the world except for prohibitions resulting
from the agreements or documents listed in EXHIBIT 5.1,
EXHIBIT 5.10(a)(v), (vi) OR (x) or resulting from
customary distributorship or agency agreements which
have been entered into in the ordinary course of
business;
(ix) contract with Aventis and its subsidiaries (other than
the Messer Group) other than the delivery of services
and goods at arm's length conditions;
(x) joint venture agreement, partnership agreement or
shareholder agreement, all to the extent relating to the
joint shareholding in a Messer Group Company and not
already listed in EXHIBIT 5.1, such listed agreements
also to be regarded as Corporate Documents, except for
those entered into by this Agreement or waived pursuant
to Section 12.1 of this Agreement. To the extent joint
venture agreements are not disclosed in EXHIBIT
5.10(a)(x) or other Corporate Documents have not been
delivered prior to the execution of this Agreement,
Investor NewCo accepts that the relevant joint venture
partner of a Material Messer Company has a customary
right of first offer.
(xi) company agreement in the meaning of Section 291 et seq.
of the German Stock Corporation Act;
(xii) contract involving financial derivatives (i.e. financial
options, futures and forwards, interest swaps and
currency
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swaps, which create rights and obligations that have the
effect of transferring between the parties to such
instrument one or more of the financial risks inherent
in an underlying primary financial instrument and which
do not result in a transfer of the underlying primary
financial instrument on such inception of the contract);
(xiii) agreement with third parties providing for preemptive
rights, rights of first refusal, option rights, rights
of first offer or other rights to acquire any shares in
any Material Messer Company, except if the respective
agreement or document is already disclosed in EXHIBIT
5.1 OR EXHIBIT 5.10(a)(x).
(The documents referred to in (i) through (xiii) collectively the
"MATERIAL MESSER CONTRACTS").
It is agreed that with respect to any items guaranteed under Section
5.1(a)(iii) but only to the extent relating to lending or
borrowing of funds, the content of a report dated October 13, 2000
and called "Review Procedures on Net Debt Position and Working
Capital for the Messer Griesheim Group", and attached hereto as
EXHIBIT 5.10(a)(a) for evidence purposes only, is deemed to be
disclosed hereunder but only to the extent amounts of debt are
disclosed in such report; PROVIDED that for any excess amounts the
aforementioned guarantees remain unaffected.
(b) Except as set forth in EXHIBIT 5.10(b), as of the date hereof
(i) none of the Material Messer Contracts has been
terminated by any contract party, nor has any such
contract party given written notice about its intention
to terminate a Material Messer Contract;
(ii) no Material Messer Company is to the respective Material
Messer Company's top management's best knowledge in
default as to the fulfillment of any material obligation
arising from a Material Messer Contract;
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(iii) no Person has stated in writing to a Material Messer
Company that a Material Messer Contract is partially or
entirely invalid.
Furthermore, except as set forth in EXHIBIT 5.10(b), to
Hoechst's best knowledge as of the date hereof the Material
Messer Contracts are in full force and effect.
5.11 LITIGATION. Except as listed in EXHIBIT 5.11, there are no actions,
suits, proceedings, orders or investigations pending or, to
Hoechst's best knowledge as of the date hereof, threatened against
or affecting any of the Material Messer Companies at law, or in
equity, or before or by any Governmental Entity involving amounts in
dispute in excess of EUR 1,000,000. The guarantees contained in this
Section 5.11 are made as of the date hereof.
5.12 EMPLOYEES. EXHIBIT 5.12(a) lists the corporate function and the
dates of the employment agreement of individuals employed by certain
Material Messer Companies having an annual base salary in excess of
EUR 125,000 (the "KEY EMPLOYEES") and individuals engaged as
consultants (the "CONSULTANTS") who receive a yearly consultancy fee
in excess of EUR 125,000. None of the Key Employees has terminated
his/her employment agreement. EXHIBIT 5.12(b) lists all internal
collective employee agreements (i.e. agreements which are entered
into between any Material Messer Company and a group of employees or
a representative body of employees of the Material Messer Companies
unless such agreements not only substantially repeat or reflect
mandatory statutory law), which contain
(a) benefit or incentive plans relating to or triggered by a
change-of-control of the respective Material Messer Company;
(b) limitations to terminate employment agreements, including
providing for severance payments;
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(c) obligations of the Material Messer Companies to make specific
investments or to guarantee a certain number of employees, all
at one or several specific sites.
Except as set forth in EXHIBIT 5.12(c), at the Material Messer
Companies there have not been any strikes or unrests of employees
since January 1, 2000. Unless otherwise specified, the guarantees
contained in this Section 5.12 are made as of the date hereof.
5.13 EMPLOYEE BENEFIT PLANS. Certain of the Material Messer Companies, in
addition to subscribing their employees to mandatory national
social security schemes, do have employee plans in place providing
for additional retirement-, death-, disability- or health benefits
(collectively the "PLANS"). These employee benefit plans may have
been adopted either by voluntary company decision or because of
existing labor law obligations in this respect. All Plans providing
for retirement benefits in Consolidated Companies are reflected in
EXHIBIT 5.13. All Plans as well as the plans listed in EXHIBIT
5.10(a)(i) and (ii) have been established and administered in
compliance with Applicable Law and regulations unless otherwise
disclosed in EXHIBIT 5.13. All company contributions and payments of
the Material Messer Companies both under mandatory social security
schemes as well as under additional retirement, death, disability,
or health benefit plans have been paid when due or the amounts due
have been reserved in the 1999 accounts of a respective Material
Messer Company or in the Financial Statements 1999. All Social
Security Payments not having been made by the Financial Date and
relating to the time until December 31, 1999 have been fully
provided for in the Financial Statements 1999 or in the individual
financial statements of the Material Messer Companies as of December
31, 1999. Each U.S. employee benefit plan which is intended to be
qualified within the meaning of Section 401(a) of the United States
Internal Revenue Code of 1986, as amended, is so qualified and has
received to the required extent a favorable determination letter
from the Internal Revenue Service as to its qualification and
nothing has occurred, whether by action or failure to act that could
reasonably be expected to cause the loss of such qualification. For
defined contribution plans all contributions due as of December 31,
1999 to external providers have either been paid in full or have
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been accrued on the Financial Statements 1999. For defined benefit
plans accrued liabilities and annual cost have been determined on
basis of local valuation methods that are in line with, or are not
materially different from, IAS 19. With respect to each Plan that is
subject to ERISA, no "reportable event" (as defined in Section 4043
of ERISA) that could have adverse financial consequences, no
"prohibited transaction" (as defined in Section 406 of ERISA), and
no "accumulated funding deficiency" has occurred. None of the
Material Messer Companies and none of the ERISA Affiliates (as
defined as entities treated as being a single employer together with
any Material Messer Company under Section 414 of the Code) of the
Material Messer Companies have incurred any liability under Title
IV of ERISA.
5.14 CAPITAL CONTRIBUTIONS/DISTRIBUTIONS. Except as set forth in EXHIBIT
5.14, there are no outstanding payment obligations
(EINLAGEVERPFLICHTUNGEN) with respect to the Messer Capital Stock
for which any Messer Group Company (except for the Participations)
is liable, and there have been no (direct or indirect) hidden or
open repayments of the Messer Capital Stock (including the Hoechst
MGG Share) to the shareholders of the Messer Group Companies which
lead to a corresponding repayment obligation of the recipient or
violate Applicable Law. As of the date hereof and except as
disclosed in EXHIBIT 5.14 or as expressly agreed in the Corporate
Documents, no Material Messer Company is obliged to make further
capital contributions (NACHSCHUSSVERPFLICHTUNGEN) to any Messer
Group Companies on the basis of corporate resolutions.
5.15 COMPLIANCE WITH LAWS; PERMITS; CERTAIN OPERATIONS. Except as
disclosed in EXHIBIT 5.15, each of the Material Messer Companies
holds all the Permits necessary and material to the conduct of the
Gas Business, and all such Permits are in full force and effect.
Except as stated in EXHIBIT 5.15, as of the date hereof, the
Material Messer Companies have not received any written and binding
notice from any public authority revoking, canceling, rescinding,
materially modifying or refusing to renew any Permit material to the
conducting of the Gas Business or providing written notice of
violations material to the conducting of the Gas Business under any
law. The Material Messer Companies are in all material respects in
compliance with the Permits and Applicable Law and the
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requirements of the Permits and have filed all declarations and
reports required by Applicable Law, directives and material
regulations.
5.16 INSURANCE. The Material Messer Companies except the companies
located in Egypt have retained insurance coverage as customary in
the industrial gases industry in the respective country. All
insurance premiums have been paid by the Material Messer Companies
when due. No party has given a notice to terminate a material
insurance contract. To Hoechst's best knowledge no Material Messer
Company is in default with any material obligations (including
OBLIEGENHEITEN) under such insurance contracts.
5.17 OTHER LIABILITIES. Other than guarantees referred to in Section 5.10
(a)(iv), and (i) to be disclosed in the Exhibits to this Section 5
or (ii) involving not more than EUR 2,500,000, there are no
liabilities exceeding an amount of EUR 25,000,000 in the aggregate
of any Material Messer Company for circumstances attributable to the
time prior to the date hereof which are (as to the internal
relationship) solely stemming from any obligations of the Messer
Group Companies other than the Material Messer Companies.
5.18 FINANCE LEASES. As of the Financial Date, the total amount
(determined on a basis consistent with the Financial Statements
1999) of all Finance Leases of all Consolidated Messer Companies,
which individually have an accounted value in excess of EUR
2,500,000, did not exceed DM 275,560,000 (without taking into
account the so-called "Duisburg Lease".
5.19 CONSOLIDATED DEBT AT YEAR END. The Total Debt of the Company and its
Consolidated Subsidiaries will not, as at December 31, 2000, be more
than DM 3,700,000,000.
For this purpose, "Total Debt" means the sum of (without double
counting):
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(a) corporate debt;
(b) liabilities due to stockholders;
(c) accrued interest;
(d) guarantees; and
(e) share capital not yet fully paid in and extended liability,
in each case as shown in the consolidated audited IAS financial
statements of the Company and for the business year ending on
December 31, 2000, including the notes thereto, adjusted by:
(f) adding (to the extent not otherwise included) the total amount
actually or contingently due under factoring arrangements;
(g) deducting the total amount of all actual or contingent
liabilities of the Company or any of its Consolidated
Subsidiaries in respect of Messer Singapore and Singapore
Syngas to the extent otherwise reflected in the above, but
adding an amount equal to DM 180,000,000, reduced by the
difference between the aggregate expenses incurred by the
Company relating to Messer Singapore and Singapore Syngas
between September 1, 2000 and December 31,2000 and the
aggregate amounts to be paid by Hoechst on the Closing Date
under paragraph 4.5(h) pursuant to the Singapore Separation
Agreement;
(h) deducting the amounts to be paid by Hoechst to MGG on the
Closing Date pursuant to Section 4.17(m) and pursuant to
Section 4.5 of the Singapore Separation Agreement in each case
related to expenses incurred by MGG between September 1, 2000
and December 31, 2000;
(i) deducting the total amount included under paragraph (d) above,
to the extent that they are covered by the specific indemnity
from Hoechst under Section 4.17
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Items (a) to (e) above will be prepared applying the same
definitions, accounting and disclosure principles as for the
preparation of the Financial Statements 1999.
It is agreed that a loan of the International Finance Corporation in
the amount of US$ 51,000,000 extended to Messer Trinidad and Tobago
Ltd. shall not be taken into account when determining the amount of
the Total Debt; PROVIDED that there is an equal amount of cash on
hand and reflected in the Financial Statements 2000.
The guarantee contained in this Section 5.19 shall not be subject to
the De Minimis Amount, the Threshold and the Guarantee Cap. In the
event of a breach of the guarantee contained in this Section 5.19,
any Loss to be indemnified hereunder shall be reduced by the debt
amounts under (e) above, except in a situation in which, and then
only to the extent that, (i) the payment to the relevant company
concerned must be made to the capital reserves (i.e., without
consideration) and exceeds the direct or indirect pro rata
shareholding of MGG or (ii) the payment is made to a company which
at the time of the payment is Insolvent and the paid amounts cannot
reasonably be expected to be recovered.
5.20 SPECIAL REP. No Messer Group Company, Aventis China Company or ACIC
is currently engaged in, and has not within the prior three years
engaged in, any activity described in EXHIBIT E. The foregoing
shall not relate to the activities of MGG as the former owner of any
businesses to the extent no longer directly or indirectly owned or
operated by MGG (including the cutting and welding business).
6. INDEMNIFICATION BY HOECHST
6.1 GENERAL. If any of the guarantees in Section 5 is untrue or
incorrect when made, Hoechst may take all such actions as shall be
necessary or desirable to cure the breach, including any Losses
resulting therefrom. If and to the extent Hoechst fails to cure the
breach within a period of three (3) months after notification by
Investor NewCo, solely Investor NewCo
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shall be entitled to raise claims and it shall only be entitled to
claim damages in money from Hoechst according to this Section 6.
6.2 LOSS. Investor NewCo shall only be entitled to claim damages
pursuant to the provisions of this Section 6 for liabilities,
losses, damages, claims, external costs and expenses, interest,
awards, judgments and penalties (including, without limitation,
attorneys' and consultants' fees and expenses) ("LOSS") actually and
directly suffered or incurred by Investor NewCo or any of the Messer
Group Companies, as applicable, arising out of or resulting from the
breach of any guarantee made by Hoechst in Section 5. Any such Loss
shall only include future loss of profits ("ENTGANGENER GEWINN") to
the extent that ordinary course income (on an after tax basis) of
any Messer Group Company which has suffered such Loss is reduced
thereby (thus, e.g., any Loss resulting from a breach of Section 5.5
would not include any loss of profits).
6.3 HOECHST DAMAGE QUOTA, DE MINIMIS AMOUNT, THRESHOLD AND CAP. Investor
NewCo's claims for damages shall be based upon the principle that
(i) Hoechst shall only be liable under this Section 6 for a certain
quota of any incurred Losses (the "HOECHST DAMAGE QUOTA"), which
quota shall be based upon the rules explained under (a) below; that
(ii) except for specified cases, a de minimis amount and a threshold
must be observed as explained under (b) below and that (iii)
additionally a cap shall apply as explained under (c) below.
(a) The Hoechst Damage Quota shall be computed as follows:
(i) If a Fully Owned Messer Group Company incurs Losses, the
Hoechst Damage Quota shall be sixty-six and two-thirds
percent (66 2/3 %) of all Losses incurred by such Fully
Owned Messer Group Company (the "66% PRINCIPLE");
(ii) Subject to (iii) and (iv) below, if a Non-Fully Owned
Messer Group Company incurs any Losses, the Hoechst
Damage Quota shall be equal to the pro rata amount of
the shareholding directly or indirectly transferred to
Investor NewCo hereunder (the "PRO RATA SHAREHOLDING
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PRINCIPLE", together with the 66% Principle the "PRO
RATA PRINCIPLE"); For example: In case of a 51% owned
Messer Group Company, the Hoechst Damage Quota amounts
to thirty-four percent (34%) (66 2/3 x 51%).
(iii) The Pro Rata Principle shall not apply with respect to
any Loss which is directly incurred by Investor NewCo
(through Hoechst NewCo II) and which is not incurred at
the same time by any of the Messer Group Companies
(i.e., any Loss related to the Hoechst MGG Share
itself), for such Losses the Hoechst Damage Quota shall
amount to 100%, subject to the other limitations
contained in this Section 6 (the "PRO RATA EXCEPTION
PRINCIPLE").
(iv) For the avoidance of doubt: There shall be no double
counting of Losses so that, for example, the reduced
value of a Subsidiary or reduced dividend flows
resulting from a Loss and incurred by the respective
shareholding company shall not be indemnifiable
hereunder. If, however, such Loss as a result of a
breach of a guarantee or other indemnity obligation is
also directly suffered or incurred by a Messer Group
Company in which Investor NewCo indirectly holds a
higher shareholding, then such higher shareholding shall
be relevant for the application of the Pro Rata
Principle and only the Loss suffered by this company
shall be relevant.
(b) Hoechst shall in any event only be liable under this Section
6, if the individual claim or series of claims (SERIENSCHADEN)
recoverable under this Section 6 exceeds EUR 250,000 (in
words: Euro two hundred fifty thousand) in case of a breach of
a guarantee other than the guarantees contained in Section 5.5
and EUR 1,000,000 (in words: Euro one million) in case of a
breach of a guarantee contained in Section 5.5 (each amount a
"DE MINIMIS AMOUNT") and the aggregate of all individual
claims above the De Minimis Amount exceeds EUR 10,000,000 (in
words: Euro ten million) (the "THRESHOLD"), in which case the
entire amount except for any De Minimis Amounts is payable;
PRO-
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VIDED FURTHER that in case of a breach of any of the
guarantees stated in Sections 5.1 through 5.4 Investor NewCo
shall be entitled to receive the full amount of any such
recoverable individual claim or series of claims irrespective
of the amount up to the Total Compensation;
(c) In no event shall Hoechst's aggregate liability under this
Section 6 (in connection with Section 5) exceed the amount of
twenty percent (20%) of the Total Compensation (the
"GUARANTEE CAP"); PROVIDED that the Guarantee Cap shall not
apply in case of a breach of any of the guarantees stated in
Sections 5.1 through 5.4. For the avoidance of doubt: In no
event shall Hoechst be obliged to make indemnifications under
Sections 5, 6 and 9 in excess of the aggregate amount of the
Total Compensation. It is understood that if the Total
Compensation is reduced as a result of a non consummation of
the China SPA, any payments made by Hoechst exceeding the
reduced amount of the Total Compensation shall be promptly
refunded to Hoechst by Investor NewCo.
6.4 THIRD-PARTY-CLAIMS. If Investor NewCo determines to seek remedies
under this Section 6 (in connection with Section 5 above), with
respect to claims resulting from the assertion of liability by
third parties, Investor NewCo shall give written notice to Hoechst
as soon as possible but not later than fifteen (15) Business Days
after Investor NewCo or the Messer Group Companies affected become
aware of any such claim. The parties shall then mutually agree
whether and which steps to take to defend themselves against such
claims. If requested by Hoechst, Investor NewCo or any of the Messer
Group Companies concerned shall defend itself against such claims as
directed by Hoechst; PROVIDED that Hoechst agrees to bear the costs
connected therewith, whereby general administration costs of
Investor NewCo or any of the Messer Group Companies concerned shall
always be borne by Investor NewCo.
6.5 WAIVER OF CLAIMS. Any claims of Investor NewCo pursuant to this
Agreement shall be deemed waived by Investor NewCo, if Investor
NewCo has not submitted to Hoechst within twenty (20) Business Days
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after discovery of the relevant facts by Investor NewCo or any of
the Messer Group Companies affected justifying a damage claim
against Hoechst hereunder a written notice specifying in reasonable
detail the facts upon which an alleged or possible claim is based,
if and to the extent Hoechst is unable to mitigate its damage as a
result thereof.
6.6 LIMITATION. Any claims pursuant to this Section 6 (in connection
with a breach of guarantees other than those stated in Sections 5.1
through 5.4) shall be time-barred in the case of any claims made by
Investor NewCo after June 30, 2002 and in the case of any claims
made by MGG or any MGG Designee under the China SPA 18 months after
the China Closing Date (the "CHINA LIMITATION DATE"), unless
Investor NewCo or MGG or any MGG Designee, as the case may be, (i)
has submitted to Hoechst a notice in accordance with Section 6.5
hereof at the latest on or before June 30, 2002 or the China
Limitation Date, and (ii) has initiated arbitration proceedings in
accordance with Section 12.16 within a period of three (3) months
after receipt of the notice by Hoechst referred to in sub-paragraph
(i) above if such claims are not recognized by Hoechst until such
date. Claims for a breach of the guarantees stated in Sections 5.1
through 5.4 shall be time-barred after the tenth (10th) anniversary
of the Closing Date in the case of claims made by Investor NewCo
hereunder, and after the tenth (10th) anniversary of the China
Closing Date, in the case of claims made by MGG or any MGG Designee
under the China SPA.
6.7 MITIGATION. Investor NewCo shall undertake reasonable efforts to
ensure that all reasonable steps are taken which are necessary to
avoid a liability of Hoechst under this Agreement being incurred and
to mitigate the amount of any such liability. When calculating the
amount of any such liability, all present and future advantages
(including tax advantages) in connection with the subject matter
shall be taken into account.
To the extent the registered share capital of a Messer Group Company
has not been fully paid in or has been repaid in violation of
Sections 5.2 or 5.14 prior to the date hereof (the "PRE-TRANSACTION
DISTRIBUTED CAPITAL SITUATION"), the following shall apply without
limiting the foregoing:
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(a) To the extent that a Pre-Transaction Distributed Capital
Situation constitutes a Loss to a Messer Group Company,
Hoechst shall indemnify Investor NewCo in accordance with the
terms set forth in this Section 6.
(b) In case of a Pre-Transaction Distributed Capital Situation at
MGG and independent of any Loss suffered by Investor NewCo,
Investor NewCo and MIG shall to the extent (i) permitted under
then Applicable Law and under any contracts MGG and its
Affiliates are a party to, and (ii) possible without any
disadvantages of MGG which are not compensated in advance by
Hoechst, use reasonable efforts that the stated capital of MGG
will be reduced, if necessary, such that the full amount of
the capital previously required to be paid to MGG can be
redistributed to Investor NewCo. Any such distribution to
Investor NewCo shall be forwarded to Hoechst when received net
of taxes up to the amount received by Investor NewCo or any
other intermediate holding company under (a). Any refundable
withholding tax will be balanced among the parties upon
availability of such refunds. MIG and Investor NewCo shall use
reasonable efforts that any such capital reductions will be
made and any such refunds will be available as soon as
possible.
In case of a Pre-Transaction Distributed Capital Situation at
any Messer Group Company other than MGG and independent of any
Loss suffered by Investor NewCo, Investor NewCo shall, to the
extent (i) permitted under then Applicable law and under any
contracts the respective Messer Group Company, MGG or their
Affiliates are a party to, and (ii) possible without any
disadvantage of MGG, the respective Messer Group Company and
their Affiliates which are not compensated in advance by
Hoechst, use reasonable efforts, that such other MGG Group
Company's stated capital will be reduced, if necessary, such
that the full amount of the capital previously required to be
paid to such MGG Group Company can be redistributed to the
respective shareholding company or companies. To the extent
any such redistribution(s) diminishes the Loss of Investor
NewCo, Investor NewCo shall
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refund to Hoechst any indemnification earlier granted to it by
Hoechst under (a). Investor NewCo shall use reasonable efforts
that any such funds will be available as soon as possible at
the Messer Group Company or Companies having suffered the
Loss.
(c) Upon a disposal of any shares in MGG (other than through a
public offering) by Investor NewCo, Investor NewCo is
obligated to assign any rights under this Section 6.7 to a
purchaser or successor and such purchaser or successor shall
assume the obligations of Investor NewCo (on a pro rata basis,
if applicable) under this Section 6.7. The rights and
obligations of Investor NewCo under the foregoing shall
terminate on June 30, 2002.
(d) If a mitigation of any damage in accordance with the foregoing
is not achievable within a reasonable time period, the parties
shall consult in good faith to find appropriate alternative
solutions.
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6.8 INDEMNIFICATION OF HOECHST. To the extent Hoechst is not liable
(including as a result of periods of limitation) under this
Agreement but Hoechst or any of its Affiliates are liable for a
liability of any of the Material Messer Companies on the basis of a
"piercing-the-corporate-veil" concept, Investor NewCo shall
indemnify and hold harmless Hoechst and its Affiliates from Losses
resulting therefrom, unless the liability of Hoechst and its
Affiliates is based on a specific action or omission of the parties
to be indemnified hereunder; PROVIDED that the claim for
indemnification or series of claims (SERIENSCHADEN) exceeds in each
case EUR 250,000; and PROVIDED FURTHER that Investor NewCo shall not
be liable under this Section 6.8 in excess of an amount equal to the
Guarantee Cap. Any liability of Investor NewCo under this Section
6.8 shall be subject to a period of limitation ending December 31,
2003; PROVIDED that with respect to claims relating to taxes the
period of limitation shall not end before the relevant period set
forth in Section 8.8(c) shall have expired. Sections 6.4, 6.5 and
6.7 shall apply MUTATIS MUTANDIS. For the avoidance of doubt: Any
statutory claims of Aventis or its Affiliates shall not be limited
by the foregoing.
6.9 SOLE REMEDY. Investor NewCo hereby acknowledges and agrees that its
sole and exclusive remedy with respect to any and all Losses
relating to the subject matter of this Agreement shall be pursuant
to the applicable indemnification provisions of the Combination
Documents. Any breach of a representation under Section 5 is
exclusively being indemnified pursuant to this Section 6, PROVIDED
that the indemnification for Environmental Contamination shall be
exclusively governed by Section 9 and that the indemnification for
Taxes shall be exclusively governed by Section 9 and that the
indemnification for Covered Guarantees shall be exclusively governed
by Section 4.17. In furtherance of the foregoing, Investor NewCo
hereby waives to the fullest extent permitted under applicable law
any and all other statutory or contractual claims relating to the
subject matter of this Agreement not covered by this Section 6 (in
connection with Section 5), Sections 8 and 9. As amplification and
without limitation any claims based on POSITIVE VERTRAGSVERLETZUNG
and CULPA IN CONTRAHENDO and any claims for cancellation (WANDLUNG)
and rescission (RUCKABWICKLUNG) or challenge (ANFECHTUNGSRECHTE) of
this Agreement, except for the challenge because of malicious deceit
(ANFECHTUNG WEGEN
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ARGLISTIGER TAUSCHUNG), are expressly excluded; PROVIDED that any
claims for fulfillment of this Agreement (ERFULLUNGSANSPRUCHE) which
are not expressly and specifically the subject matter of a guarantee
under Section 5 of this Agreement, and claims for breach of
covenants and other obligations under this Agreement and the rights
under Section 10.1 are not affected by this Section 6.9, regardless
of whether raised by Investor NewCo or any other party under this
Agreement or any other Combination Documents contemplated to be
executed by this Agreement.
6.10 EXCLUSION OF LIABILITY. Any liability of Hoechst to indemnify
Investor NewCo for a breach of representations pursuant to this
Section 6 or pursuant to Sections 8 and 9 is excluded if and up to
the amount the underlying circumstances (i) are provided for in the
Financial Statements 1999 or described in EXHIBIT 5.5 and have not
been used up as of the Closing Date, (ii) are provided for in the
individual audited financial statements of the relevant Material
Messer Company as of December 31, 1999 or described in EXHIBIT 5.5
and have not been used up as of the Closing Date, or (iii) are the
subject of valid and collectable claims for corresponding
performances of third parties, in particular by insurances (the
validity risk and the insolvency risk and all Losses associated with
the collection of such claims regarding the third party shall be
borne by Hoechst).
6.11 ORAL STATEMENTS. Hoechst is not liable for the correctness of any
oral or written statements made by managing directors, employees or
consultants of Hoechst, its Affiliates, MIG and the Messer Group
Companies in particular during the Due Diligence, and the knowledge
of these persons cannot, subject to Section 6.12 and unless
otherwise provided in this Agreement, be attributed to Hoechst. This
Section 6.11 does not apply to any covenants or other obligations
not related to a guarantee under Section 5 of this Agreement.
Without limiting the foregoing, Hoechst or Hoechst NewCo III are in
particular not liable for the correctness and completeness of any
oral or written information provided to KPMG in connection with the
Due Diligence.
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6.12 KNOWLEDGEABLE PERSONS. To the extent Hoechst has made a
representation based on "Hoechst's best knowledge", Hoechst can only
be held liable if any of the following persons were aware of the
incorrectness of the representation or were unaware of it due to
their own negligence: Mr. Waesche, Dr. Schmieder, Dr. Schottler, Mr.
Dornedden, Mr. Stowasser, Mr. von Storm, Mr. Allcock and Mr. Doerr.
6.13 EXCLUSION OF SECTIONS 439, 460, 464. For the avoidance of doubt:
Sections 439, 460, 464 of the German Civil Code (BGB) are excluded.
6.14 AVENTIS CHINA COMPANIES. In case any of the guarantees in Section 5
made with respect to ACIC, New China Holding (as defined in the
China SPA), any of the ACIC Gas Companies (as defined in the China
SPA and being identical with the Aventis China Companies), any other
Chinese company sold to MGG directly or indirectly in connection
with any sale and transfer mechanism or the MCCO Assets is breached,
Sections 6.1 through 6.13 shall apply; provided that the
66%-Principle shall not apply but the Pro Rata Shareholding
Principle shall apply and that any indemnifications shall be made by
Hoechst to MGG and FURTHER PROVIDED that the guarantees given in
Sections 5.1 through 5.4 are not made as of the Closing Date but as
of the China Closing Date and thus may not affect the closing
condition set forth in Section 3.1(g).
6.15 AUDIT REVIEW. With respect to a potential breach of the guarantee
stated in Section 5.19, MGG will cause that KPMG shall audit the
Financial Statements 2000 as promptly as possible and such audited
Financial Statements 2000 shall be submitted to Hoechst and Investor
NewCo promptly thereafter. Hoechst, and Investor NewCo, shall each
have the right to appoint an auditor who shall then have the right
to review such Financial Statements 2000. For this purpose Hoechst
and Investor NewCo and their auditors shall have access to the books
and records used by MGG and the Consolidated Messer Companies in the
preparation of the Financial Statements 2000 and shall have
reasonable access to the working papers of KPMG prepared in
connection with the audit. In the event Hoechst or Investor NewCo
does not agree with the delivered Financial Statements 2000 to the
extent relevant for Section 5.19, it shall
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deliver to the other a written objection (the "OBJECTION NOTICE")
within a period of five (5) weeks after receipt of the Financial
Statements 2000. In the event that no Objection Notices are
delivered within said period, the Financial Statements 2000 shall
become final and binding for purposes of determining a breach of
Section 5.19, without prejudice to any other guarantees given
pursuant to Section 5. In the event that an Objection Notice is
delivered, the parties shall use best efforts to resolve such
objection. To the extent that the parties then agree on the items of
the Financial Statements 2000 relevant for Section 5.19, such
agreement shall become final and binding for the parties.
If and to the extent that Investor NewCo and Hoechst cannot agree on
the items of the Financial Statements 2000 relevant for Section
5.19 within four (4) weeks following the delivery of an Objection
Notice, the disputed items shall be decided with binding effect for
the Parties by BDO or any other internationally recognized auditing
firm mutually agreed by Investor NewCo and Hoechst (the "FIRM") in
accordance with Section 317 German Civil Code (BGB). Before
rendering its decision, the Firm must grant Hoechst and Investor
NewCo an opportunity to present their views. The Firm has to submit
its decisions with reasons in writing to Investor NewCo and Hoechst
and shall be instructed to do so within five (5) weeks of the
commencement of such proceedings. With respect to the costs of the
proceeding, Section 91 et seq. of the German Code of Civil Procedure
(ZPO) shall apply. Such costs shall be shared by Investor NewCo and
Hoechst.
6.16 SPECIFIC REMEDY FOR SECTION 5.20. Hoechst shall indemnify Investor
NewCo, subject to the Pro Rata Principle and the Guarantee Cap and
subject to the other provisions of this Section 6 except for the De
Minimis Amount and the Threshold, for any Losses arising out of or
resulting from any breach of the guarantee set forth in Section
5.20, PROVIDED that the matter giving rise to such breach was within
Hoechst's best knowledge on the date of the execution of this
Agreement AND such matter was not disclosed to Investor NewCo prior
to the Closing Date.
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7. REPRESENTATIONS AND WARRANTIES OF INVESTOR NEWCO
7.1 REPRESENTATIONS. Investor NewCo represents and warrants in the form
of an independent guarantee to Hoechst that as of the date hereof
and the Closing Date:
(a) Investor NewCo is duly incorporated and validly existing under
the laws of the jurisdiction of incorporation and has all
requisite corporate power and authority to own assets and to
carry out business. The execution, delivery and performance by
Investor NewCo of this Agreement does not, and the
consummation of the transactions contemplated herein will not
conflict with or result in a breach of the terms, conditions
or provisions of or constitute a default under its articles of
incorporation or by-laws under which it is bound or to which
it is subject.
(b) Investor NewCo has delivered to Hoechst prior to the signing
of this Agreement a complete and correct copy of three
commitment letters of Allianz AG, Allianz Capital Partners
GmbH and of GS Capital Partners 2000, L.P. (the "FUND") duly
executed and not terminated as of the date of signing of this
Agreement.
(c) Immediately prior to the Closing Date, the sole shareholders
of Investor NewCo are the GS Funds and Allianz Capital
Partners GmbH subject to a transfer of up to 17% of the shares
to a third party until the Closing Date; PROVIDED that such
transfer shall not have a negative impact on the assessment of
the transactions contemplated hereunder under applicable
merger control laws or procedures.
7.2 INDEMNIFICATION. In the event that Investor NewCo is in breach of
any representation under Section 7.1 above, it shall indemnify
Hoechst for any Loss, including lost profits, as a result thereof.
Claims for a breach of the guarantees stated in this Section 7 shall
be time-barred after the tenth (10th) anniversary of the Closing
Date.
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8. TAX MATTERS
8.1 TAX INDEMNITIES.
(a) Hoechst agrees to indemnify, subject to the Pro Rata Principle
and the Pro Rata Exception Principle but not subject to any of
the limitations and restrictions set forth in Sections 5 and
6, Investor NewCo against
(A) all Taxes which have not been paid by any Tax
Indemnification Company by the Financial Date although
having been due by this date or if not due by this date
would have been due (based on past experience and local
standards) if a tax return that has not been filed when
due had been filed when due,
(B) any German real estate transfer tax (GRUNDERWERBSTEUER)
resulting from (i) the transfer of the shares in
Hoechst NewCo II, which MIG receives as consideration
for the contribution of its interest in MGG to Hoechst
NewCo II, by MIG to Investor NewCo, PROVIDED that any
such contribution shall be made on or before December
31, 2001 and (ii) the transfer of the Hoechst NewCo III
Shares from Hoechst to Investor NewCo in case of an
exercise of the Counter-Call Option pursuant to Section
2.9.
(C) all Taxes payable by a Tax Indemnification Company for
any taxable period or portion thereof that ends on or
before December 31, 1999,
(D) all Taxes resulting from (x) the write up of the tax
base or (y) any taxable capital gain, both to the extent
related to the shares in Messer Netherlands B.V. or the
shares formerly held directly by MGG in Messer UK Ltd.,
Messer France S.A. and Messer Italy S.p.A., both (x) and
(y) to the extent that these Taxes are resulting from
the mandatory reversal of previous write-downs
(WERTAUFHOLUNGSGEBOT); PROVIDED that (x) and (y) only
apply to the
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extent related to circumstances occurred in, and
attributable to, the time period before the Financial
Date and (x) and (y) shall not apply if a reversal of a
write-down is already indemnifiable under lit. C above,
and
(E) all Losses resulting from any shortfall between the
realized amounts of refund claims against tax
authorities, which are scheduled to be received after
the Financial Date and the value at which such claims
are accounted for in the Financial Statements 1999;
PROVIDED, HOWEVER, that no indemnity shall be provided under
this Agreement for any Taxes (i) if such Taxes are reflected
in the Financial Statements 1999 or the financial statements
of the individual Tax Indemnification Company as of December
31, 1999, or have been paid on or before the Financial Date,
(ii) if and to the extent Investor NewCo does not fully comply
with its obligations under this Section 8 and Hoechst is
unable to mitigate its damages as a result thereof, (iii) if
such Taxes are resulting from any transaction undertaken or
caused by Investor NewCo, on or after the Closing Date except
for transactions contemplated by this Agreement and except as
for Taxes referred to under lit. B and D above, or (iv) to the
extent that such tax liability under lit. C above is based on
a reallocation of earnings or losses and such reallocation
will cause a tax reduction in a corresponding amount after
December 31, 1999; PROVIDED that the net present value of such
future tax reduction shall be calculated on the basis of a six
percent (6%) annual interest rate. No indemnity is provided
for any Tax payments resulting from (i) the Write-Downs
described in EXHIBIT 4.6, and (ii) the consummation of the
Foreign Sub Contribution Agreement.
(b) Payment by Hoechst of any indemnification due under this
Section 8.1 shall be made within ten days following written
notice by Investor NewCo, as the case may be, that payment of
such amounts to the appropriate Tax Authority is due, PROVIDED
that Hoechst shall not be required to make any payment earlier
than two (2) days before such Taxes are due to the appropriate
Tax
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Authority or in case of losses from a shortfall or a refund
claim has not been paid by the Tax Authority when it was
scheduled to be due. In the case of any Tax that is contested
in accordance with the provisions of Section 8.6, payment of
such Tax to the appropriate Tax Authority will be considered
due no earlier than the date a final determination to such
effect is made by the appropriate Tax Authority or a court of
proper jurisdiction; PROVIDED that the competent tax authority
has granted relief from paying the assessed Tax until such Tax
becomes final and binding. If this is not the case, Hoechst
shall make a respective advance indemnification payment to
Investor NewCo, and if the final amount of Taxes to be paid is
lower than assumed when making the advance indemnification
payment by Hoechst, then the appropriate difference plus
interest, if any, shall be reimbursed by Investor NewCo, as
the case may be, including all interest thereon received or
otherwise credited by a Tax Authority.
(c) For purposes of this Agreement, (i) subject to Section 8.7 in
the case of any Tax based upon or measured by gross or net
income or receipts, net worth, capital or franchises, or any
Tax imposed in connection with any sale or other transfer of
property, that is payable for a period that begins before
December 31, 1999 and that ends after December 31, 1999, the
portion of any such Tax that is allocable to the portion of
the period ending on December 31, 1999 shall be deemed equal
to the amount that would be payable if the taxable period
ended on December 31, 1999, and (ii) in the case of any other
Tax that is payable for a period that begins before December
31, 1999 and that ends after December 31, 1999, the portion of
any such Tax that is allocable to the portion of the period
ending on December 31, 1999 shall be deemed to equal the
amount of Taxes for the entire period multiplied by a fraction
in which the numerator is the number of days in the portion
of the period ending on December 31, 1999 and the denominator
is the number of days in the entire period.
8.2 REFUNDS AND BENEFITS.
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(a) Investor NewCo shall promptly pay to Hoechst in accordance
with the Pro Rata Principle any Tax refund, credit or similar
benefits (including any interest paid or credited with respect
thereto) realized or received by any Tax Indemnification
Company or under a tax unity with respect to a Tax
Indemnification Company by any of their Affiliates and not
accounted for as an asset in the individual financial
statements of the respective Tax Indemnification Company as of
December 31, 1999,
(i) relating to the Tax Indemnification Companies for
taxable periods or portions thereof ending on or before
December 31, 1999; or
(ii) attributable to an amount paid by Hoechst under Section
8 hereof.
Investor NewCo shall in general and, if Hoechst so requests at
Hoechst's expense -- pro rata in accordance with the Pro Rata
Principle-, cause the Tax Indemnification Companies to file
for and obtain any Tax Refund, credits or similar benefits to
which Hoechst may be entitled under this Section 8.2 and if
reasonable to prosecute such claims. Investor NewCo shall
permit Hoechst to procure and control (at Hoechst's expense)
the prosecution of any such claim, and shall cause any of its
Affiliates or the Tax Indemnification Companies to authorize
by appropriate power of attorney to such persons as Hoechst
shall designate to represent such entity with respect to such
claim. In case a tax refund will be realized as a result of
such claim, the amount of such refund shall be shared in
accordance with the Pro Rata Principle.
(b) A Tax benefit is to be considered as realized for purposes of
this Agreement at the time that it is reflected on a Tax
assessment of the relevant entity and has reduced a Tax
liability otherwise payable or received in cash or as some
other cash equivalent.
(c) If a payment is made by Hoechst in accordance with Section
8.1, and if in a subsequent taxable year a Tax benefit is
realized by Investor NewCo or the Tax Indemnification
Companies, or under
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a tax unity with respect to a Tax Indemnification Company by
any other Affiliates of Investor NewCo that was not previously
taken into account to reduce an amount otherwise payable by
Hoechst under Section 8.1, Investor NewCo shall promptly pay
to Hoechst, at the time of realization, the amount of such Tax
benefit to the extent that such amount would have resulted in
a reduction in the obligations of Hoechst under Section 8.1 if
the Tax benefit had been obtained or known in the year of
Hoechst's payment. This provision shall apply, MUTATIS
MUTANDIS, in case of refunds, so that refunds might be set-off
against future additional taxes arising out of the event that
caused such refund.
(d) To verify that Investor NewCo has fulfilled its obligation
under this Section 8.2, it shall, after the statute of
limitations for all claims of Investor NewCo under Section 8.1
has run out with respect to all Consolidated Companies,
account for all received refunds or Tax credits or similar
benefits and proceeds from the release of provisions made for
Taxes. Any then outstanding amounts including default
interest, if applicable, payable by Investor NewCo to Hoechst
shall then promptly be paid; PROVIDED that Investor New Co is
entitled to set-off such claims against any outstanding
claims.
8.3 PREPARATION OF TAX RETURNS. MGG shall prepare and file (or cause to
be prepared and filed) all Tax Returns relating to the Tax
Indemnification Companies that relate to any taxable period ending
on or before December 31, 1999 or that include transactions for
which indemnification is granted in Section 8.1. Tax Returns filed
by a Tax Indemnification Company or by any Affiliates under a tax
unity for a taxable year that includes December 31, 1999 shall be
prepared on a basis consistent with those prepared for prior tax
years (unless counsel for Investor NewCo, after consultation with
counsel for Hoechst, determines that there is no reasonable basis in
law therefor). With respect to any Tax Return required to be filed
by Investor NewCo or a Tax Indemnification Company after December
31, 1999, and as to which an amount of Tax is allocable to Hoechst
under Section 8.1, or as to which a Tax refund, credit or other Tax
benefit is allocable to Hoechst under Section 8.2, Investor NewCo
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shall provide Hoechst with a copy of such completed return, and a
statement (with which Investor NewCo will make available supporting
schedules and information) certifying the amount of Tax or Tax
refund, credit or other benefit shown on such return that is
allocable to Hoechst pursuant to Section 8.1 or 8.2 hereof, at least
two (2) weeks prior to the due date (including any extension
thereof) for the filing of such return. Investor NewCo agrees to
consult with Hoechst and to attempt in good faith to resolve any
issues arising as a result of the review of such return and
statement by Hoechst.
8.4 COOPERATION AND EXCHANGE OF INFORMATION. Hoechst and Investor NewCo
will provide each other with such cooperation and information as
either of them reasonably may request of the other (and Investor
NewCo shall cause the Tax Indemnification Companies to provide such
cooperation and information) in filing any Tax Return, amended
return or claim for refund, determining any liability for Taxes or a
right to a refund of Taxes or participating in or conducting any
audit or other proceeding in respect of taxes relating to the Tax
Indemnification Companies. Such cooperation and information shall
include providing copies of relevant Tax Returns or portions
thereof, together with accompanying schedules and related work
papers and documents relating to rulings or other determinations by
Tax Authorities. Hoechst and Investor NewCo shall make its employees
available (and Investor NewCo shall cause the employees of the Tax
Indemnification Companies to be available) on a mutually convenient
basis to provide explanations of any documents or information
provided hereunder. Investor NewCo will retain all returns,
schedules and work papers and all material records or other
documents in its possession relating to Tax matters of the Tax
Indemnification Companies which are subject to indemnification under
Section 8.1 or reimbursement until the later of (i) the expiration
of the statute of limitations of the taxable periods to which such
returns and other documents relate, without regard to extensions, or
(ii) six years following the due date (without extension) for such
returns. After such time, before Investor NewCo shall dispose of any
such documents, Investor NewCo, shall, by 90 days, prior written
notice to Hoechst, give Hoechst the opportunity (at such Hoechst's
expense) to remove and retain all or any part
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of such documents as Hoechst may select. Investor NewCo is bound to
ensure that Hoechst is given the opportunity to attend fiscal Tax
audits of the Tax Indemnification Companies concerning matters which
are subject to indemnification under Section 8.1 or reimbursement
under Section 8.2. Any discussions and negotiations with the Tax
Authorities relating to such matters shall be made after
consultation with Hoechst and considering the interests of Hoechst,
notwithstanding the statutory obligations of the management of the
Tax Indemnification Company concerned.
8.5 NOTIFICATION. After the Closing Date, Investor NewCo shall notify
Hoechst within two weeks upon learning of but in any event prior to
the commencement of any Tax audit or administrative or judicial
proceeding that, if determined adversely to the Tax Indemnification
Company concerned would possibly constitute grounds for
indemnification under Section 8.1. Such notice shall be in writing
and shall contain factual information (to the extent known to
Investor NewCo) describing the asserted Tax liability in reasonable
detail and shall include copies of any notice or other document
received from any Tax Authority in respect of any such asserted Tax
liability.
8.6 CONTEST. Investor NewCo shall procure that each of the Tax
Indemnification Companies shall contest any Tax assessments or
accompanying acts of the Tax Authorities in accordance with prudent
business standards as if no indemnification were granted hereunder
(any such contest related to Tax assessments or accompanying acts of
Tax Authorities, which might give rise to an indemnification under
this Section 8, collectively a "CONTEST"). In case Investor NewCo
and Hoechst disagree on the success chances of any such Contest and
the Tax Indemnification Company concerned is therefore not prepared
to initiate any judicial proceeding, such proceedings shall be
initiated at the request and expense of Hoechst, which then may also
direct, through counsel of its own choosing such proceeding to the
extent involving any asserted liability with respect to which
indemnity may be sought under Section 8.1, however, Investor NewCo
may, at its own expenses, continue to participate in the Contest. If
Hoechst elects to direct a Contest, then Hoechst shall, within three
(3) weeks of receipt of Investor NewCo's notice of as-
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serted tax liability, notify Investor NewCo of its intent to do so,
and Investor NewCo shall cooperate and shall cause the Tax
Indemnification Companies or their respective successors to
cooperate, at Hoechst's expense, in each phase of such Contest. If
Hoechst does not elect to direct the Contest or fails to notify
Investor NewCo of its election as herein provided, Investor NewCo or
the Tax Indemnification Companies may pay, compromise or contest
such asserted tax liability; PROVIDED that neither Investor NewCo
nor the Tax Indemnification Companies may settle or compromise any
asserted tax liability over the objection of Hoechst (which consent
to settlement or compromise shall not be unreasonably withheld). In
any event, Hoechst may participate, at its own expense, in any
Contest. If Hoechst chooses to direct the Contest, Investor NewCo
shall promptly empower and shall cause the Tax Indemnification
Companies or their respective successor promptly to empower (by
power of attorney and such other documentation as may be necessary
and appropriate) the designated representatives of Hoechst to
represent Investor NewCo or the Tax Indemnification Companies or
their successor in the Contest insofar as the Contest involves an
asserted tax liability for which Hoechst would be liable under
Section 8.1.
8.7 CONVEYANCE TAXES. Subject to Section 8.1(a)(B), Investor NewCo
agrees to assume liability for and to pay all sales, transfer,
stamp, stock transfer, real property transfer or similar taxes
(excluding, for the avoidance of doubt, any income or similar taxes
such as without limitation any corporate income tax, trade tax and
solidarity surcharge, collectively referred to as "INCOME TAX")
incurred as a result of the transactions contemplated hereby;
PROVIDED that any such Income Taxes shall be borne by Hoechst, if
and to the extent they relate to the consummation of the Hoechst
NewCo II Contribution Agreement, the Hoechst NewCo II Share Purchase
Agreement I, the Share Loan Agreement, the Call Option, the
Counter-Call Option or Counter-Put Option and the Forward Sale
Agreements I and II and that Hoechst shall indemnify without any
limitations Investor NewCo, Hoechst NewCo II and Hoechst NewCo III
(after exercise of the Counter-Call Option or the Counter-Put
Option) from any such Income Taxes.
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It is agreed and Investor NewCo shall procure that during the
Call-Option Period, the Hoechst NewCo II Shares, which are subject
to the Call Option, will not constitute more than 70% of the
outstanding share capital of Hoechst NewCo II for real estate
transfer tax purposes.
8.8 MISCELLANEOUS.
(a) To the extent permitted by law, the parties agree to treat all
payments made under this Section 8, under any other indemnity
provision contained in this Agreement, and for any
misrepresentations or breach of warranties or covenants, as
adjustments to the Main MGG Purchase Price for all tax
purposes.
(b) For purposes of this Section 8, all references to Investor
NewCo, Hoechst and the Tax Indemnification Companies include
successors.
(c) The obligations of the parties pursuant to this Section 8
shall survive the Closing Date and shall be time-barred six
(6) months after the tax assessment for the respective Tax
Indemnification Company for the respective tax period has
become final; PROVIDED that claims of Hoechst only become
time-barred if Investor NewCo has duly informed Hoechst of any
claims Hoechst may have under this Section 8. The limitation
period stops running if claims are asserted by one party
against the other on the basis of this Section 8 and if the
reasons on which such claim is based are reasonably defined.
8.9 CLARIFICATIONS. It is understood that any Tax payments resulting
from the consummation of the Foreign Sub Contribution Agreement are
not subject to any indemnification claims under this Agreement.
Accordingly, each party shall bear its own Tax liabilities arising
from the Foreign Sub Contribution Agreement.
8.10 AVENTIS CHINA COMPANIES. In case of indemnifiable Taxes incurred by
either ACIC, New China Holding (as defined in the China SPA), any of
the ACIC Gas Companies (as defined in the China SPA and being
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identical with the Aventis China Companies), any other Chinese
company sold to MGG directly or indirectly in connection with any
sale and transfer mechanism or the MCCO Assets, Sections 8.1 through
8.9 shall apply MUTATIS MUTANDIS; provided that the 66%-Principle
shall not apply but the Pro Rata Shareholding Principle shall apply
and that any indemnifications shall be made by Hoechst to MGG.
9. ENVIRONMENTAL MATTERS
9.1 REFUND AND ALLOCATION OF DAMAGE CONTROL EXPENSE. Any Damage Control
Expenses incurred after the Financial Date shall be allocated and
refunded by Hoechst according only to the following rules with the
limitations and restrictions set forth in Section 5 and 6 not being
applicable, except for Section 6.3(c) last sentence.
(a) The allocation of Damage Control Expenses shall be based upon
the principle that (i) Hoechst shall only bear a certain quota
of any and all Damage Control Expenses (the "HOECHST DAMAGE
CONTROL EXPENSE QUOTA"), which quota shall be based upon the
rules explained under (b) below, that (ii) except for
specified cases, a de minimis amount and a threshold must be
observed as explained under (c) below, and that (iii)
additionally a cap shall apply as explained under (d) below.
(b) The Hoechst Damage Control Expense Quota shall be computed as
follows:
(i) Subject to (iii) below, the maximum amount to be
allocated to Hoechst as the Hoechst Damage Control
Expense Quota shall be sixty-six and two/thirds percent
(66 2/3%)) of all Damage Control Expenses incurred by
any Fully Owned Environmental Company.
(ii) Subject to (iii) below, if a Non-Fully Owned
Environmental Company incurs Damage Control Expenses,
the maximum amount to be allocated to Hoechst as the
Hoechst Damage Control Expense Quota is subject to the
Pro Rata Principle. For example: In case of a 51% owned
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Environmental Company, the Hoechst Damage Control
Expense Quota amounts to thirty-four percent (34%)
(= 66 2/3 x 51%).
(iii) Of the amounts computed pursuant to (i) and (ii) of this
paragraph and as the Hoechst Damage Control Expense
Quota, Hoechst shall bear eighty percent (80%); PROVIDED
that Hoechst shall bear 100% of the amounts so computed
in case of Damage Control Expenses for Environmental
Contaminations on real estate which any time prior to
Closing had been owned but which is neither owned nor
occupied by an Environmental Company at the Closing Date
(the "FORMER MESSER REAL ESTATE"); and further PROVIDED
that Hoechst shall bear 90% of the amounts computed
pursuant to (i) and (ii) in case of Environmental
Contaminations attributable to the five sites
identified in table 1 of EXHIBIT 9.1 as long as and to
the extent that the aggregate Damage Control Expenses
resulting from Environmental Contaminations attributable
to those five sites do not exceed the amount of
EUR 26,000,000 and regarding amounts in excess thereof,
Hoechst shall bear 80%.
(c) Investor NewCo may in any event only claim a refund of Damage
Control Expenses if the aggregate amount of the Hoechst Damage
Control Expense Quota attributable to a Site exceeds the
amount of EUR 50,000 (the "ENVIRONMENTAL DE MINIMIS AMOUNT")
and if, furthermore, the aggregate amount of the Hoechst
Damage Control Expense Quotas above the Environmental De
Minimis Amount exceeds the amount of EUR 4,000,000 (the
"ENVIRONMENTAL THRESHOLD"); PROVIDED that the Environmental De
Minimis Amount and the Environmental Threshold shall not apply
to Damage Control Expenses attributable to (i) Former Messer
Real Estate, (ii) the five sites identified in table 1 of
EXHIBIT 9.1 and (iii) the sites identified in table 2 of
EXHIBIT 9.1.
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(d) In no event shall Hoechst's aggregate obligation under this
Section 9.1 exceed an amount of fifteen percent (15%) of the
Total Compensation (the "ENVIRONMENTAL CAP"); PROVIDED that
the Environmental Cap shall not apply to Damage Control
Expenses attributable to (i) Former Messer Real Estate and
(ii) the five sites identified in table 1 of EXHIBIT 9.1.
(e) Hoechst shall not have an obligation under this Section 9.1 if
and up to the amount the underlying circumstances
(i) are provided for in the Financial Statements 1999,
(ii) are provided for in the individual audited financial
statement of the Environmental Company affected as of
December 31, 1999, or
(iii) are the subject of valid and collectable claims for
corresponding performances of third parties, in
particular by insurances (the validity risk and the
insolvency risk and all Losses reasonably associated
with the collection of such claims regarding the third
party shall be borne by Hoechst).
9.2 CONDITIONS TO CERTAIN REFUNDS. The refund of Damage Control Expenses
under Section 9.1 is conditioned on the following:
(a) Subject to the Environmental Companies' legal obligations,
Investor NewCo shall reasonably endeavor, without incurring
specific expenses not being (partially) reimbursed hereunder,
to limit the scope of any Damage Control Measures, including,
without limitation, initiating and diligently pursuing all
reasonable actions challenging threatened or issued orders of
Governmental Entities with respect to the determination of any
Environmental Contamination or of any Environmental Damage and
to Damage Control Measures (the "GOVERNMENTAL ORDERS") and
diligently pursuing (after prompt notice to and consent by
Hoechst, which shall not be unreasonably withheld or delayed,
it being understood that Investor NewCo shall bear the cost of
any such third party, private litigation undertaken without
the consent of
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Hoechst, unless Hoechst was obliged to consent) any reasonable
third party private litigation. Investor NewCo shall not
settle any matter relating to an Environmental Contamination
without the written consent of Hoechst which consent shall not
be unreasonably withheld. Investor NewCo shall ensure that any
improvements are designed and constructed in such a manner as
to reasonably mitigate Damage Control Expenses. Without
prejudice to the foregoing, the parties are in Agreement that
a good faith cooperation with the public authorities is the
preferred manner to mitigate Damage Control Expenses.
(b) Unless the Damage Control Measure is required by specific
Governmental Order, prior to undertaking any Damage Control
Measures, Investor NewCo shall obtain a report from an
environmental professional expert in the subject matter of
Environmental Contamination (an "EXPERT") regarding the kind
and extent of the Environmental Contamination and of the
Damage Control Measure, the results of which report shall
create a rebuttable presumption regarding the extent of the
Environmental Contaminations. If the circumstances warrant
that a Damage Control Measure must be undertaken immediately
under Environmental Law to avoid imminent danger to human
health or consequences under criminal law on an emergency
basis (GEFAHR IN VERZUG) and it is not possible to obtain an
Expert opinion prior to undertaking such Damage Control
Measure, the requirement set forth in the immediately
preceding sentence shall be complied with as soon as possible.
Any Expert shall be selected jointly by Investor NewCo and
Hoechst. In the event that Hoechst and Investor NewCo cannot
agree on an Expert, the Expert shall be selected by the
President of the Chamber of Commerce in Frankfurt am Main. The
report of the Expert, once approved by Hoechst and Investor
NewCo, may be disclosed by Investor NewCo or Hoechst to third
parties, including Governmental Entities. Notwithstanding any
other provision of this Agreement, the costs of retaining the
Expert shall be borne equally by Investor NewCo and Hoechst,
unless the involvement of the Expert is required
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anyway, in which case the costs of the Expert shall be
regarded as Damage Control Expenses.
(c) Prior to incurring any Damage Control Expense required
pursuant to a remedial action plan (a "RAP"), Investor NewCo
shall provide Hoechst with a draft of a proposed RAP at least
twenty (20) Business Days before disclosure to any
Governmental Entity or third party claimants and shall
consider and incorporate when appropriate and consistent
with this Agreement any comments and suggested modifications
provided in writing within such 20-day period. Investor NewCo
shall not implement any RAP with respect to a Damage Control
Measure without the prior consent of Hoechst, which consent
shall not be unreasonably withheld or delayed; PROVIDED,
HOWEVER, that in the case of a Damage Control Measure
undertaken in an emergency, a RAP may promptly be provided to
the competent Governmental Entity. A RAP shall contain at
least a description of the actions that will be undertaken in
the Damage Control Measure and an estimation of the expenses
that will be incurred in respect of the Damage Control
Measure.
(d) Contractors hired to complete a Damage Control Measure in
excess of EUR 500,000 shall be chosen according to customary
bidding procedures from at least three (3) qualified
independent companies selected by Investor NewCo to be invited
to bid and reasonably acceptable to Hoechst. If, in the
opinion of Hoechst and Investor NewCo, the bidders are of
equal quality, expertise and experience, and the proposals of
the bidders are sufficiently precise to permit direct
comparison, the lowest bidder shall be awarded the contract.
(e) If Investor NewCo or any of the Messer Group Companies become
involved in a governmental or third party claim or actions
that is likely to result in an obligation of Hoechst to
indemnify Investor NewCo under this Section 9, Investor NewCo
shall notify Hoechst of such claim or action. In the event of
a claim or action that is reasonably likely to result in a
claim for Damage Control Expenses in excess of EUR 500,000,
Investor NewCo
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shall procure that Hoechst and/or its advisors shall have a
reasonable opportunity to participate in the process of
evaluating the remedial actions to be taken in connection with
the underlying Environmental Damage, including by
participating in material communications with Governmental
Entities or third party claimants (or by receiving prompt
notice in reasonable details about any such material
communications that were not prearranged).
(f) Hoechst shall always be notified in advance of the selection
of any Damage Control Measure exceeding EUR 100,000 and for
any such Damage Control Measure likely to exceed EUR 500,000
shall be afforded the opportunity to participate in decision
making regarding the structure and implementation of any
Damage Control Measure, including the bidding process related
thereto upon reasonable prior notice.
(g) There is no refund obligation of Hoechst under this Section 9
with respect to any Damage Control Expenses if and to the
extent such Damage Control Expenses would not have arisen but
for the change of a use of a Site after the Closing Date.
9.3 POST-CLOSING ENVIRONMENTAL CONTAMINATION.
(a) In the event that a Damage Control Measure remedies
environmental contamination that is comprised of (i)
Environmental Damage and (ii) environmental contamination
created after the Closing Date, the obligation of Hoechst
pursuant to Section 9.1(b) hereof shall be only in respect
of the Environmental Damage; PROVIDED that any environmental
contamination discovered within one year after the Closing
Date that is not the result of a known release or spill after
the Closing Date (to be confirmed in writing by Investor
NewCo) shall be presumed to be Environmental Contamination
(subject to the demonstration by Hoechst to the contrary). In
the event that Investor NewCo and Hoechst cannot agree as to
the amount of the Environmental Contamination, the Company
will with the consent of Hoechst
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and Investor NewCo retain an Expert to prepare a report
delineating the applicable proportion, the results of which
report shall create a rebuttable presumption.
(b) Investor NewCo shall immediately notify Hoechst of (i) any
environmental contamination (particularly environmental
contamination resulting from spills and releases
occurring/caused after the Closing Date) and (ii) of any
Environmental Contamination discovered after the Closing Date.
9.4 APPLICATION FOR REFUND. Investor NewCo shall apply to Hoechst for
the refund of Damage Control Expenses set forth in Section 9.2
hereof as follows:
(a) Investor NewCo shall request from Hoechst reimbursement of
identified amounts in a letter (a "REIMBURSEMENT
APPLICATION"), which Reimbursement Application shall include
if applicable: (i) a copy of all invoices, receipts and other
documentation (including claims) upon which the demand is
based; (ii) a copy of the applicable contractor agreement and
payment terms, and (iii) a receipt indicating the amounts
disbursed to the applicable contractors together with
contractor wiring instructions (if applicable).
(b) The refund of the Damage Control Expenses will be paid by
Hoechst within one (1) month after receiving the
Reimbursement Application unless a Reimbursement Application
is not sufficiently substantiated.
(c) Subject to the pendency of any action undertaken pursuant to
Section 9.2 hereof, Hoechst's obligation in respect of
Section 9.1(a) hereof shall be time-barred as follows:
Investor NewCo has notified Hoechst in writing within four (4)
years and six (6) months, and in case Damage Control Expenses
attributable to Former Messer Real Estate within ten (10)
years, after the Closing Date that it or any Environmental
Company (i) has received a court order or other Governmental
Order or other notification from a Governmental Entity or (ii)
a third party claim, or
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(iii) has commenced with Damage Control Measures as a result
of a respective legal obligation, in each case reasonably
expected to give rise to Damage Control Expenses indemnifiable
under this Section 9. Hoechst shall not be responsible for
Damage Control Expenses to the extent that a Reimbursement
Application has not been received within twelve (12) months
after the date of any invoice for which Investor NewCo seeks
reimbursement.
9.5 AVENTIS CHINA COMPANIES. In case of refundable Damage Control
Expenses incurred by either ACIC, New China Holding (as defined in
the China SPA), any of the ACIC Gas Companies (as defined in the
China SPA and being identical with the Aventis China Companies), any
other Chinese company sold to MGG directly or indirectly in
connection with any sale and transfer mechanism or the MCCO Assets,
Sections 9.1 through 9.4 shall apply MUTATIS MUTANDIS; PROVIDED that
the 66%-Principle shall not apply but the Pro Rata Shareholding
Principle shall apply and that any indemnifications shall be made by
Hoechst to MGG.
10. TERMINATION
10.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing:
(a) by Hoechst or Investor NewCo if the Closing shall not have
occurred on or before March 31, 2001 (the "CLOSING DROP
DATE"); PROVIDED that the right to terminate this Agreement
under this Section 10.1(a) shall not be available to any
party whose failure to fulfill any obligation under the
Combination Documents shall have been the cause of, or shall
have resulted in, the failure of the Closing to occur prior
to such date;
(b) by the mutual written consent of Hoechst and Investor NewCo;
or
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(c) by Investor NewCo if it has been determined in accordance with
Section 3.4 that the closing condition set forth in Section
3.1(f) cannot be satisfied.
10.2 SPECIAL TERMINATION RIGHT OF INVESTOR NEWCO. Notwithstanding any
provision of this Agreement to the contrary, it is acknowledged and
agreed that Investor NewCo has not, as of the date of the execution
of this Agreement, obtained binding commitments for the financing
(including with respect to the Loan Notes) necessary to effect the
transactions contemplated by this Agreement (the "FINANCING"), which
financing will necessarily include all funds necessary for payment
of the Total Compensation, the refinancing of existing indebtedness
of the Messer Group Companies, the provision of financing
commitments with respect to contingent liabilities of the Messer
Group Companies, and the payment of all fees and expenses relating
to the transaction. Investor NewCo agrees to use reasonable
endeavors to obtain, as promptly as practicable following the
execution of this Agreement, one or more legally binding and
definitive commitments with respect to, in the aggregate, all of the
Financing upon terms and conditions, and in amounts, satisfactory to
Investor NewCo and its shareholders, which terms and conditions will
necessarily include that such commitments are subject to no material
initial funding conditions other than the satisfaction of the
conditions set forth in Section 3.1 (a commitment or commitments
with respect to, in the aggregate, all of the Financing and
satisfying the foregoing criteria being referred to as a "DEFINITIVE
FINANCING COMMITMENT"). In the event that at any time on or before 8
February 2001, Investor NewCo determines and notifies Hoechst that,
for any reason, a Definitive Financing Commitment will not be or is
not likely to be available, or that the Financing contemplated by a
Definitive Financing Commitment will not be or is not likely to be
available on the Closing Date, Investor NewCo shall have the right
to terminate this Agreement, without liability or penalty. In no
event shall Investor NewCo be deemed to have breached its
obligations under this Agreement as a result of any inability by it
to obtain a Definitive Financing Commitment, PROVIDED that Investor
NewCo has used reasonable endeavors to obtain such a Definitive
Financing Commitment. After 8 February 2001, Investor NewCo is no
longer enti-
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tled to terminate this Agreement on the basis of this
Section 10.2 unless such date has been extended by mutual written
agreement of Investor NewCo and Hoechst.
It is acknowledged that the terms of a Definitive Financing
Commitment, and the ability of Investor NewCo to obtain a Definitive
Financing Commitment, may be impacted by, among other things, the
results of operations and financial condition of MGG for the 2000
fiscal year as reflected in Financial Statements 2000. It is
acknowledged that the ability of Investor NewCo to obtain a
Definitive Financing Commitment prior to 8 February 2001 as
contemplated by the foregoing assumes that Investor NewCo will
receive a draft of the audited Financial Statements 2000 by no later
than 29 January 2001; PROVIDED that Hoechst does not undertake any
responsibility for the timely delivery of such accounts.
10.3 SPECIAL TERMINATION RIGHT OF HOECHST
(a) In the event that at any time on or before 24 January 2001,
Hoechst determines and notifies Investor NewCo that it has,
for whatever reason, not received a satisfactory, in its sole
discretion, amendment to a first tax ruling already received,
Hoechst shall have the right to terminate this Agreement,
without liability or penalty. In no event shall Hoechst be
deemed to have breached its obligations under this Agreement
as a result of it not having received a satisfactory amendment
to the above-mentioned tax ruling; PROVIDED that Hoechst has
used reasonable endeavors to obtain such an amendment. After
24 January 2001, Hoechst is no longer entitled to terminate
this Agreement on the basis of this Section 10.3 unless such
date has been extended by mutual agreement of Investor NewCo
and Hoechst.
(b) In the event that based on the delivered Financial Statements
2000 it is revealed that Hoechst would have to pay for a
breach of Section 5.19 indemnification in excess of EUR
20,000,000, Hoechst may terminate this Agreement prior to the
Closing Date, without liability or penalty.
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10.4 EFFECT OF TERMINATION. In the event of any termination of this
Agreement as provided in Sections 10.1 through 10.3, this Agreement
shall forthwith become void and there shall be no liability on the
part of either party hereto to any other party hereto except (i)
that the provisions of this Section 10 and Sections 12.4 and 12.5
through 12.15 except 12.14 shall survive termination of the
Agreement, and (ii) that nothing herein shall relieve either party
from liability for any breach of this Agreement.
11. GUARANTEES
Hoechst hereby assumes full responsibility by way of an independent
guarantee (SELBSTANDIGE ERFULLUNGSGARANTIE) that ACIC and, if applicable
and during the periods they are controlled by Hoechst, Hoechst NewCo II
and Hoechst NewCo III fully and timely comply with all obligations assumed
under the Combination Documents. Hoechst will procure that Aventis will
deliver at Closing a guarantee substantially in the form of EXHIBIT
3.1(j).
12. ADDITIONAL AGREEMENTS
12.1 MIG RIGHTS. MIG hereby agrees that the transactions contemplated by
this Agreement will be consummated, and waives all rights of first
refusals or other preference rights it may have with respect to the
sale and transfer of the Hoechst MGG Share. MIG shall and Hoechst
shall procure that all legal formalities required under the articles
of association of MGG will be fulfilled to implement the
transactions contemplated by this Agreement. Subject to the
foregoing, nothing contained in this Agreement shall be construed
such as that MIG waives any of its rights under the articles of
association of MGG. Hoechst and MIG are in agreement that with
effect as of the Closing Date, the GRUNDSATZVEREINBARUNG, as
amended, shall terminate. Any rights of MIG and Hoechst under said
GRUNDSATZVEREINBARUNG remains otherwise in full force and effect
until the Closing Date. For the avoidance of doubt: If for any
reason the Closing Date does not occur, rights and obligations of
Hoechst and MIG under the articles of association and said
GRUNDSATZVEREIN-
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BARUNG remain unaffected. In the event that the Call Option is
exercised but neither the Counter-Call Option nor the Counter-Put
Option is exercised, Hoechst and MIG shall treat each other as if
the current articles of incorporation of MGG and the
GRUNDSATZVEREINBARUNG came again in force.
12.2 NON-COMPETE. Subject to any permitted holding of interests in MGG
under this Agreement by Hoechst, Hoechst hereby undertakes for
itself, Aventis and any of Aventis' Subsidiaries (other than the
Messer Group Companies) for a period of three (3) years following
the Closing Date (i) not to conduct any activity within the
territorial scope of the Gas Business of the Messer Group Companies
as of the date hereof which would directly or indirectly compete
with the Gas Business as conducted by the Messer Group Companies as
of the date hereof or which would directly or indirectly result in
such competition, (ii) not to acquire any interest in any Person, a
core business of which (i.e., more than 33% of such Person's annual
sale) is, directly or indirectly, to compete with the Gas Business
of the Messer Group Companies, and (iii) not to solicit any current
employee of the Messer Group; PROVIDED, however, that (i) the
current activities of any affiliate of Hoechst and of its parent
Aventis with the exception of the Messer Group Companies shall not
constitute a competing conduct of Hoechst, (ii) Hoechst and its
parent Aventis may directly or indirectly hold interests or
securities of any person solely as passive investment to the extent
such investment cannot confer to Aventis directly or indirectly more
than one-third of the voting rights of such Person, and (iii)
Aventis and its Subsidiaries may acquire interests in companies
competing with the Gas Business with annual sales in the gas
business of no more than EUR 25,000,000 which competing gas business
must then be sold within nine (9) months.
12.3 EXPENSES AND FEES. Except as otherwise specifically provided in this
Agreement including the Combination Documents, each party shall pay
and bear its own expenses and fees (including attorneys',
accountants', consultants' and advisors' fees) in connection with
this Agreement or any of the transactions contemplated hereby. The
cost of the notarization of this Agreement shall be borne by
Hoechst. Any fees and costs of merger
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control procedures (excluding lawyer's fees) connected with the
execution and consummation of this Agreement, shall be borne by
Investor NewCo. The notarization costs of the Hoechst NewCo III
Share Purchase Counter-Call Agreement or the Hoechst NewCo III Share
Purchase Counter-Put Agreement shall be borne by Hoechst. In
addition Hoechst shall pay to the parties(on a pro rata
basis-headcount) of a certain KONSORTIALVEREINBARUNG an amount of
50% of the notarial fees arising from the notarization of such
KONSORTIALVEREINBARUNG which is being notarized of even date by and
between, among others, Allianz Capital Partners GmbH, GS Funds and
MIG, to the extent they exceed SFR 25,000 plus V.A.T.
12.4 NOTICES. All notices hereunder shall be given to the respective
parties hereto by hand delivery or by registered letter with receipt
confirmed ("EINSCHREIBEN") and shall be considered delivered in all
respects when delivered as follows:
To Hoechst:
Hoechst Aktiengesellschaft
Industriepark Frankfurt am Main - Hochst
D-65926 Frankfurt am Main
Germany
Attention: Vorstand
With a copy to:
Aventis
67917 Strasbourg, Cedex 9
France
Attention: General Counsel
To Investor NewCo:
c/o Allianz Capital Partners GmbH
Theresienstr. 1-7,
80333 Munchen
Germany
Attention: Stefan Sanne
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Goldmann Sachs International
Peterborough Court
133 Fleet Street
London, EC4A 2BB
Great Britain
Attention: Ulrika Werdelin
To MGG:
Messer Griesheim GmbH
Corporate Office
Frankfurt Airport Center 1, C9
D-60547 Frankfurt
Germany
Attention: Geschaftsfuhrung
To MIG:
Messer Industrie Gesellschaft mbH
Hardtberg 1
61462 Konigstein
Attention: Geschaftsfuhrung
or to such other address as any party hereto shall have designated
by written notice to the other party from time to time.
12.5 AMENDMENTS. Any amendment of or supplement to this Agreement,
including this provision and the Exhibits, must be in writing to be
valid, and must be notarized if required by law.
12.6 HEADINGS. In this Agreement the headings are inserted for
convenience only and shall not affect the interpretation of this
Agreement. Where a German term has been inserted in brackets it
alone shall be authoritative for the purpose of the interpretation
of the relevant English term in this Agreement.
12.7 DEFAULT INTEREST RATE. In the event that one of the parties to this
Agreement is in default (VERZUG) with payments under this Agreement,
it shall pay default interest at a rate of EURIBOR (three months)
prevailing at the respective due date and as adjusted from time to
time
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to time thereafter plus 4% p.a. (in addition to Contractual
Interest, if due). Sec. 284 para 3 of the German Civil Code (BGB)
shall not apply. Interest shall be compounded quarterly and shall be
calculated on the basis of actual days elapsed divided by 360. The
right to claim further damages, if any, shall remain unaffected.
12.8 RIGHTS OF RETENTION. Any rights of retention are excluded. Unless
undisputed or confirmed by a non-appealable decision, claims may not
be set off against the Main MGG Purchase Price or any other payment
claim pursuant to this Agreement.
12.9 COMPLETE AGREEMENT. This Agreement constitutes the full
understanding of the parties and the complete and exclusive
statement of the terms and conditions of the Agreement relating to
the subject matter hereof and supersedes any and all prior
agreements, whether written or oral, that may exist between the
parties with respect thereto.
12.10 SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties and the respective successors and assigns
of the parties hereto only (i.e., no third party beneficiary). This
Agreement or any rights and obligations hereunder shall not be
assigned to any other person by any party hereto without the prior
written consent of the other parties hereto, other than as expressly
agreed herein; PROVIDED that Investor NewCo may assign rights under
this Agreement to financing institutions for security purposes or to
Allianz AG or the Goldman Sachs Group, Inc. or any of their
Subsidiaries or funds managed by them, which must remain
Subsidiaries or funds managed by Affiliates of the Allianz AG or
Goldman Sachs Group, Inc., and which must not further assign any
such rights other than to a purchaser of any shares in Investor
NewCo, who cannot exercise any such assigned rights differently than
any of the aforesaid Persons. Nothing herein contained shall prevent
an assignment hereof to a successor (GESAMTRECHTS-ODER
EINZELRECHTS-NACHFOLGE) of any party if such succession is created
as a result of a merger or consolidation involving a transfer of
ownership of all or substantially all of its assets by any party
hereto; PROVIDED that the successor to such party in any such
transaction shall assume in writing or as a matter of law the
obligations of such party hereunder with full continu-
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ing liability of such party and further provided that prior written
notice of such transaction shall be given by such party to the other
parties hereto. No assignment shall relieve any party hereto of its
obligations hereunder.
12.11 COUNTERPARTS. Each of the parties shall execute and deliver all such
further documents and agreements and do such further acts as are
reasonably required hereby and are not inconsistent with any other
provisions of this Agreement.
12.12 CONFIDENTIALITY
(a) The parties agree to keep confidential all information
obtained in connection with this Agreement (in the past or
future) and its performance as long as and to the extent that
it has not been made known to the public without fault of any
of the parties; PROVIDED, however, that no party shall be
restricted from sharing information with governmental or other
regulatory authorities to the extent legally required and that
Investor NewCo, Hoechst NewCo II and MGG shall not be
restricted from sharing information with financial
institutions involved in the financing of the transactions
contemplated herein including the refinancing of presently
existing debt, syndication of debt and preparation, filing and
publication of prospectus for the issuance of a high
yield bond or other financing instruments. If this Agreement
is terminated or rescinded for any reason, this
confidentiality obligation shall remain in effect
indefinitely. After signature of this Agreement, the parties
shall jointly issue a press release. Neither party shall,
without the prior consultation of the other, issue any oral or
written statement to the press or to the public regarding this
Agreement, except as required by law or the rules of any stock
exchange or governmental or other regulatory authority,
including the requirement to make a disclosure of the value of
the consideration in the next published accounts of either
party. Nothing in this Section 12.12(a) shall be understood to
prevent any party from filing a claim against the other party
before court on the basis of this Agreement.
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(b) In addition to Section 12.12(a) and except as otherwise
provided in this Agreement, after the date of this Agreement
Hoechst and its Affiliates shall not use or disclose to third
parties any information disclosed, transferred, assigned,
licensed or otherwise made available by or to Investor NewCo
hereunder and relating to the Gas Business, unless (i) such
information is needed by Hoechst to continue its commercial
activities or to execute its rights or comply with its
obligations hereunder, (ii) is or becomes public knowledge
through no fault of Hoechst, (iii) is passed to Hoechst after
the Closing Date by a third party which is under no obligation
of confidentiality, or (iv) has to be disclosed by Hoechst
pursuant to law, judicial or official order; in such case
Hoechst shall notify Investor NewCo not less than 10 (ten)
days before making the impending disclosure.
12.13 SEVERABILITY CLAUSE. If any provision of this Agreement should be
invalid or unenforceable in whole or in part for any reason
whatsoever, the remaining provisions of this Agreement shall not be
affected thereby. The invalid or unenforceable provision shall be
replaced with a valid and enforceable provision renegotiated in good
faith in order to achieve the intent of the parties to the fullest
extent possible. If this Agreement should contain a contractual gap,
such reasonable provision shall apply for the purpose of filling
such contractual gap, which the parties had intended in view of the
purpose of this Agreement if they had considered the issue.
12.14 ACCESS TO INFORMATION. Investor NewCo shall procure that Hoechst or
its advisors shall have reasonable access to the employees,
documents, books and records of each of the Messer Group Companies
including any successors, so that Hoechst can fully enforce any
rights and determine any obligations it may have under Sections 6,
8, 9 and 10 of this Agreement or in relation to the Messer Group
towards third parties or authorities. If and to the extent Hoechst
may have any rights to receive additional payments of Investor
NewCo, Investor NewCo shall procure that Hoechst will receive the
necessary information without any further request.
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12.15 GOVERNING LAW. The Agreement shall be governed by the laws of
Germany.
12.16 ARBITRATION. All disputes arising in connection with this Agreement
or its validity shall be finally settled according to the
Arbitration Rules of the German Institution of Arbitration e.V.
(DIS) without recourse to the ordinary courts of law except for
interim proceedings (EINSTWEILIGER RECHTSCHUTZ). The place of
arbitration shall be Frankfurt am Main. The arbitral tribunal shall
consist of three arbitrators, appointed in accordance with said
Arbitration Rules. The substantive law of Germany shall be
applicable to the dispute. The language of the arbitral proceedings
shall be English.
*****
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This deed and EXHIBIT 4.17 was read to the persons appearing in the presence of
the notary, approved by them and signed by them as well as the notary as
follows: