PROMISSORY AGREEMENT
OF SALE AND PURCHASE OF SHARES
ANTONIO BRANDAO MIRANDA (hereinafter referred to as ANTONIO MIRANDA),
married under the legal regimen of separation, born at Argivai, Povoa de Varzim,
resident at Rua do Molhe, nr.27, Porto, Portugal and AMTROL Inc. (hereinafter
referred to as AMTROL), with head offices at 1400 Division Road, West Warwick,
Rhode Island, United States of America, hereby represented by its attorney Jose
Carvalho de Freitas, whose quality and powers for this act are proved by power
of attorney, the original of which shall be attached to ANTONIO MIRANDA's
counterpart of this Promissory Agreement, being a copy attached to AMTROL's
counterpart.
HAVING REGARD THAT:
A) ANTONIO MIRANDA is, on today's date, the sole owner of the shares
representing the share capital of "PETROLEO MECANICA ALFA, SA." (hereinafter
referred to as ALFA) with head offices at Brito, Guimaraes, Portugal;
B) AMTROL wants to purchase and ANTONIO MIRANDA wants to sell the 300.000
shares representing the share capital of ALFA;
C) For such purpose ANTONIO MIRANDA and AMTROL signed a letter of agreement
on 07th of May 1997, whereby both parties undertook to enter into this
promissory agreement on today's date;
D) In accordance with such letter of agreement, AMTROL, with ALFA's
consent, obtained from ANTONIO MIRANDA, ordered an audit, made with auditors
chosen by it - Arthur Andersen - to ALFA's accounts as of 31 December 1996,
having ANTONIO MIRANDA received a copy of such report.
The above identified parties agree to enter into this Promissory Agreement
of sale and purchase of Shares, made on the 30th day of June 1997, which shall
be governed by the following provisions:
CLAUSE 1
Definitions
1. In this agreement the following words and expressions shall have the
following meanings:
1.1. SHARES:
The totality of shares representing ALFA's share capital, on today's date
held by ANTONIO MIRANDA, the sale and purchase of which is the subject matter of
the present Promissory Agreement;
1.2. AMTROL:
AMTROL or any company controlled by AMTROL, to whom this assigns the
contractual position under the terms of clause 18;
1.3. ESCROW BANK:
BPI - Banco Portugues do Investimento, SA., with head offices at Rua
Tenente Valadim, nr.284, 4100 Porto, Portugal, with whom the escrow agreement
attached to this Promissory Agreement as Annex I was entered into;
1.4. COMPLETION:
Completion of the sale and purchase Final Agreement of the Shares, in
accordance with clause 6;
1.5. FINAL AGREEMENT:
The final agreement to be entered into between the undersigned Parties or
between those they for such purpose indicate;
1.6. PROMISSORY AGREEMENT:
This agreement, whereby the Parties promise to sell and to purchase the
Shares
1.7. COMPLETION DATE:
The date of signature of the Final Agreement on the 22nd of December 1997;
1.8. INDEMNIFICATION ESCROWED AMOUNT:
The escrowed amount corresponding to the damages claimed by AMTROL and not
accepted by ANTONIO MIRANDA up to one million Dollars (USD 1,000,000), together
with all respective earnings;
1.9. FINAL DEPOSIT:
The deposit of the amount of five millions and five hundred thousand
Dollars (USD 5,500,000), reduced, as the case may be, by the amount of the
Indemnification Escrowed Amount, and/or by the quantified amount of damages
claimed by AMTROL, until Completion Date, and which have been accepted by
ANTONIO MIRANDA, through written document signed by both Parties;
1.10. INITIAL ESCROWED AMOUNT:
The amount of fourteen millions Dollars (USD 14,000,000) referred to in
paragraph b) of number one of clause 5, together with the respective accrued
interest, or reduced under the terms of number four of clause 20;
1.11. BUSINESS DAY:
A day, other than a Saturday or Sunday, on which banks are open generally
for business in Porto and Rhode Island;
1.12. DOLLAR:
The legal currency of the United States of America;
1.13. COMPANY or ALFA:
The Portuguese company "PETROLEO MECANICA ALFA, SA.", collective body
number 500 216 738, registered before the Commercial Registry of Guimaraes under
number 1504, with head offices at Brito, Guimaraes, Portugal;
1.14. ENCUMBRANCE:
Any mortgage, pledge, lien, encumbrance or other security interest of any
nature over the whole or any part of the Company or over any of the Shares, as
the case may be;
1.15. PARTIES:
The undersigned ANTONIO MIRANDA and AMTROL, or who this latter indicates as
purchaser until Completion Date, in accordance with clause 6;
1.16. TAXATION:
All forms of taxation, duties, imposts, surcharges, levies and rates
imposed in Portugal, including without limitation, imposto sobre o rendimento
das pessoas colectivas (IRC), imposto sobre o rendimento das pessoas singulares
(IRS), imposto sobre o valor acrescentado (IVA), imposto de selo, contribuicoes
para a seguranca social, contribuicao autarquica, imposto sobre as sucessoes e
doacoes, imposto municipal de SISA, taxas alfandegarias, or other similar
contributions and, in general, any interest, penalty or fine in connection
therewith and cognate words such as "Tax", "Taxes", "Taxation liability" and
similar shall be similarly defined;
2. The Annexes to this Promissory Agreement form part of this Promissory
Agreement and shall have the same force and effect as if included within the
body of this Promissory Agreement and any reference to this Promissory Agreement
shall include Annexes hereto.
CLAUSE 2
Promise of sale and purchase
1. ANTONIO MIRANDA promises to sell and AMTROL promises to purchase all the
Shares, with a nominal value of PTE 1.000$00 each, representing the totality of
ALFA's share capital.
2. AMTROL may indicate, until ten days before Completion Date, a company
fully held by it to enter into the Final Agreement under its own name.
3. ANTONIO MIRANDA guarantees that there are no Encumbrance over the Shares
and that these are not by any form subject to any obligation which might prevent
the Completion of the Final Agreement on Completion Date, under the terms of
clause 6.
CLAUSE 3
Price
The price for the sale and purchase of the Shares agreed between the
Parties is of USD 25,500,000 (twenty five millions and five hundred thousand
Dollars).
CLAUSE 4
Payment
1. On today's date, AMTROL pays ANTONIO MIRANDA the amount of USD
20,000,000 (twenty millions of Dollars), as earnest and down payment, being such
payment done in accordance with clause 5.
2. On Completion Date AMTROL shall pay ANTONIO MIRANDA the remaining of the
price, i.e. the amount of USD 5,500,000 (five millions and five hundred thousand
Dollars) through deposit with the Escrow Bank.
CLAUSE 5
Earnest and down-payment
1. The amount of USD 20,000,000 (twenty millions Dollars) referred to in
number one of clause 4, is paid as follows:
a) the amount of USD 6,000,000 (six millions Dollars) is delivered on
today's date to ANTONIO MIRANDA, which he gives his acquittal for, through
deposit in account number 80008.9, opened at the Escrow Bank under the name of
Antonio Brandao Miranda;
b) the amount of USD 14,000,000 (fourteen millions Dollars) is paid through
deposit with the Escrow Bank, regulated by the terms of conditions of the escrow
agreement as established in Annex I, in a bearing interest escrow account, being
interest at a 7% yearly rate, opened in a foreign subsidiary of the Escrow Bank,
for the benefit of ANTONIO MIRANDA and AMTROL;
2. ANTONIO MIRANDA, in accordance with the terms of the escrow agreement
included in Annex I, or his heirs, shall be entitled to receive the Initial
Escrowed Amount, when the Shares are transferred to AMTROL, in accordance with
clause 7.
CLAUSE 6
Completion
1. The Final Agreement shall be entered into, at Porto, Portugal, by
ANTONIO MIRANDA and by AMTROL or by a company, directly or indirectly, fully
held and/or controlled by AMTROL, indicated until 10 (ten) days before
Completion Date.
2. If the Final Agreement is not executed by AMTROL but by another company
fully controlled by it, AMTROL, together with the indication of the company
which is going to be party in the Final Agreement and acquire the Shares, shall
give ANTONIO MIRANDA the necessary documents to prove the incorporation of such
company, AMTROL's ownership of the company's share capital, and the
identification of the person with powers to represent the company on Completion
of the Final Agreement.
CLAUSE 7
Transfer of Shares
1. The Shares shall be definitively sold and transferred to AMTROL on
Completion Date, with the signature of the Final Agreement and upon delivery by
the Escrow Bank to ANTONIO MIRANDA of the Initial Escrowed Amount and Final
Deposit.
2. If the Agreement is not signed on Completion Date the Shares shall be
considered as sold and transferred to AMTROL if this deposits with the Escrow
Bank, within the next five Business Days after Completion Date, the Final
Deposit, together with the Final Agreement, signed by AMTROL on date of this
joint delivery, in accordance with the draft hereto attached as Annex II and the
Escrow Bank simultaneously puts at ANTONIO MIRANDA's disposal the Initial
Escrowed Amount and the Final Deposit.
3. From today's date and until Completion Date the Shares shall be
deposited in a bank escrowed account for this purpose opened with the Escrow
Bank, in accordance with the terms and conditions set forth in the escrow
agreement included in Annex I.
4. From today's date and until Completion, and if so requested by ANTONIO
MIRANDA, the Escrow Bank shall provide him with proof of exclusive ownership of
the Shares, for participation in ALFA's general meetings purposes.
5. In accordance with the terms and conditions set out in the escrow
agreement included in Annex I, the following shall be applicable:
a) the Escrow Bank shall give the deposited Shares to AMTROL upon
exhibition of the original of the Final Agreement, signed by both Parties;
b) upon delivery with the Escrow Bank of the Final Deposit together with
the Final Agreement, signed on the date of such delivery, under the terms of
number two of this clause, the Escrow Bank shall deliver the Shares to AMTROL
and shall put at ANTONIO MIRANDA's disposal the Initial Escrowed Amount and the
Final Deposit;
c) the Shares may be delivered to ANTONIO MIRANDA from the fifth Business
Day onwards after Completion Date if AMTROL has not previously exhibited to the
Escrow Bank the Final Agreement signed by both Parties, or if AMTROL does not
make the Final Deposit;
d) If the situation referred to in the previous number occurs and ANTONIO
MIRANDA does not ask for the delivery of the Shares until the twentieth Business
Day, inclusive, after Completion Date, the Escrow Bank shall deliver to AMTROL
the Initial Escrowed Amount;
e) However, if ANTONIO MIRANDA has, previous to the extinction of the term
referred to in the previous paragraph, notified the Escrow Bank that he will
submit to arbitration a situation of faulty breach of this Promissory Agreement
by AMTROL and effectively does so within the fifty Business Days counting from
Completion Date, the Escrow Bank shall only deliver to AMTROL the amount of USD
10,000,000 (ten millions Dollars) from the Initial Escrowed Amount, which shall
be reduced to USD 4,000,000 (four millions Dollars), being such amount delivered
by the Escrow Bank in accordance with the decision of the arbitral tribunal;
6. However, the Shares shall be considered as sold to AMTROL on today's
date, if ANTONIO MIRANDA dies on or before the Completion Date, in which case
the Escrow Bank shall deliver the Shares to AMTROL upon proof, by this latter,
of the death of ANTONIO MIRANDA, through death certificate and upon delivery to
the Escrow Bank of the Final Deposit, which (the Escrow Bank) shall put at the
disposal of ANTONIO MIRANDA's heirs both the Initial Escrowed Amount and the
Final Deposit.
CLAUSE 8
Patrimonial rights of the Shares
1. All patrimonial rights relating to the Shares or to the quality of
shareholder, verified from 1st January 1997, shall be transferred to AMTROL on
Completion Date or on the date established in paragraph six of the previous
clause if the conditions thereof mentioned are verified.
2. The patrimonial rights mentioned in the previous paragraph shall
include, namely and without limitation:
a) right to profits or dividends;
b) right to shareholder's loans to ALFA;
c) right to subscribe increases of the Company's issued share capital;
d) right to supplementary capital / equity;
CLAUSE 9
Intellectual property rights
1. ANTONIO MIRANDA grants AMTROL or ALFA, by choice of the former (AMTROL),
the right to use the word COMANOR as a non-registered trade mark.
2. ANTONIO MIRANDA further undertakes not to prevent or difficult the
registry of the trade mark COMANOR under the name of AMTROL or ALFA, giving his
express authorisation, if need be, for such purposes.
CLAUSE 10
Non-competition
ANTONIO MIRANDA undertakes not to exercise, for a term of five years
counting from Completion Date, any activity which directly or indirectly compete
with the activity carried out by ALFA, which is the manufacture and/or
reparation or requalification (refurbishment?) of reusable or disposable
containers, used for G.P.L., for refrigerating gases or for technical gases.
CLAUSE 11
Representations and warranties
ANTONIO MIRANDA guarantees that, as to 30th June 1997:
a) The Company is a corporation duly organised, validly existing and in
good standing under the laws of Portugal, having no subsidiaries;
b) ALFA's accounts closed on 31st of December 1996 reflect the real
economic and financial situation of the Company, as well as that ALFA's
accountancy instruments, containing balance sheets as of 31 December 1996 and
31st May 1997, included in Annex III, have been prepared in accordance with
generally accepted accounting principles consistently followed by the Company
throughout the periods indicated, and that there has not been, from such last
date until today, any significant change in its financial situation;
c) ALFA does not have any concealed liabilities, responsibilities or funds,
which are not revealed in its accounts, nor there are over the Company any
Encumbrances, but ALFA is bound by a promise of constituting a commercial pawn
over equipment and mortgage over the real estate located at lugar de Pontilhoes,
parish of Brito, city council of Guimaraes, registered before urban matrix of
the local tax department under number 552 and 637 and registered before the
Predial Registry under number 00932, to be constituted in favour of Banco de
Fomento Exterior, EFTA Fund, Banco Espirito Santo e banco Portugues do
Investimento, in case of faulty breach for more than forty-five days of the
obligations assumed by it before the mentioned banks and Fund in the financing
agreement, with them entered into on 20th of June 1995, to whom it granted
irrevocable proxy for the constitution of such commercial pawn and mortgage;
d) The Shares have been duly issued ad are fully paid; the Shares represent
all of the capital of ALFA and there are no outstanding subscriptions, nor
options in favour of others; apart from what is set forth in this Promissory
Agreement, there are no promises of sale or options for the purchase of the
Shares, nor rights, warrants, convertible securities or other agreements,
commitments or claims of any character which limit or relate to the transfer,
purchase, issuance or sale of any shares of capital stock of ALFA, other than as
contemplated by this Promissory Agreement;
e) He owns all of the Shares, free and clear of all Encumbrances; he has
full legal right, power and authority to enter this Promissory Agreement, and no
approvals or consents of any other person, apart from those referred hereby to,
are necessary in connection with this Promissory Agreement or with the sale of
the Shares; with the delivery to AMTROL of the Shares pursuant to this
Promissory Agreement or to the Final Agreement valid title thereto, free and
clear of all Encumbrances will be transferred to AMTROL;
f) ALFA has not issued any securities convertible into Shares or any other
securities which may be convertible into Shares;
g) All legal proceedings and files pending before any administrative,
judicial or other official entities ALFA currently is party to are the ones
listed in Annex IV;
h) ALFA is not engaged, as the moving or defending party, in any other
litigation, arbitration, administrative or other proceeding, nor to his best
knowledge is any other proceeding of such nature threatened against ALFA;
i) Except for the contracts described in Annex V, ALFA is not a party to
any important contract of continuous execution with more than one year of
duration, including contracts with suppliers or customers, relating to the
Company's business;
j) ALFA has not violated all applicable laws, ordinances and regulations,
including without being limited to, building and zone laws, laws relating to
employees and conditions of employment, and environmental requirements and
specifications relating to the Company's business;
l) The consummation of the transaction contemplated by this Promissory
Agreement will not constitute any of the following:
(i) a default or event that, with notice or passage of time or both, would
be a default, breach or violation of ALFA's articles of association, any lease,
license, promissory note, contract, commitment, indenture, mortgage, lien or
other agreement, instrument or arrangement to which ALFA is a party or by which
it or its property is bound;
(ii) an event that would permit any party to terminate any agreement or to
accelerate the maturity of any indebtedness or other obligation of ALFA;
(iii) the creation or imposition of any Encumbrance of any on ALFA's
properties;
m) None of the representations and warranties herein made contain any
untrue statement of material fact or omits to state any material fact, the
omission of which would be misleading to AMTROL;
CLAUSE 12
Undertakings
ANTONIO MIRANDA undertakes to, between the time of this Promissory
Agreement and Completion Date:
a) without AMTROL's consent, not to pass any resolution in ALFA's general
meeting or by way of written resolution which:
(i) is or may be in opposition with the attribution to AMTROL of
all patrimonial rights relating to the Shares from 1st
January 1997;
(ii) increases ALFA's share capital;
(iii) requires ALFA to pay dividends or make any other
distribution;
(iv) alters or may alter the provisions of ALFA's articles of
association;
(v) modifies ALFA's corporate year end;
(vi) changes ALFA's residence for taxation purposes;
(vii) constitutes a decision to declare or make any dividend or
other distribution;
(viii) implies the dismissal or nomination of directors or members
of ALFA's corporate bodies, unless such action is required
by law for the purposes of ratifying the cooptacao of
directors for the fulfilment of vacant places in the board;
b) not to vote against or prevent any deliberations requested by AMTROL,
which are necessary to keep the normal course of ALFA's business, to the
execution of the Final Agreement on Completion Date and to the maintenance of
the patrimonial rights arising from it;
c) not to demand from ALFA the payment of any loans he may have granted or
may be entitled to;
d) make COMANOR SA. moves for ALFA the painting line and steel
refurbishment equipment located at its former establishment;
e) not to create Encumbrances over any of the Shares;
CLAUSE 13
Will to contract
1. The Parties expressly acknowledge and accept that this Promissory
Agreement is entered into in reliance upon each of the representations,
warranties and undertakings hereby given and assumed, which are considered as
fundamental elements for the will of the Parties to enter into this Promissory
Agreement and to transfer and acquire the Shares.
2. If, after the signing of this Promissory Agreement and before Completion
Date, any event shall occur or matter arise which in any way affects the
accuracy of any of the above representations, warranties and undertakings until
Completion's date, ANTONIO MIRANDA shall immediately notify AMTROL in writing.
CLAUSE 14
Mis-representations
1. If the representations and warranties herein given by ANTONIO MIRANDA do
not represent the true and accurate situation of the Company and/or if the
undertakings herein assumed by ANTONIO MIRANDA are not complied with, having
this mis-representation and/or non compliance the result of causing damages to
AMTROL by means of considerable depreciation of the value of the Shares or of
the Company, ANTONIO MIRANDA shall be responsible for compensation of such
damages if they are verified from today's date until 30th June 1999 and if
AMTROL presents a justified and written claim, one for each damage, until such
date.
2. For the purposes mentioned in the previous number, a considerable
depreciation is deemed to occur where a single claim is for or exceeds the
amount of five millions of Portuguese escudos (PTE 5,000,000) or if several
claims of lower amount, considered together, are for or exceed the amount of
fifty millions of Portuguese escudos (PTE 50,000,000).
3. Notwithstanding the above established in the previous numbers, the
following shall be applicable:
a) if any damage is identified before Completion Date and if it is subject
to quantification and evaluated up to the amount of USD 5,500,000 (five millions
and five hundred thousand Dollars), on Completion Date, the agreed price of the
Shares shall be reduced for an amount equal to such damage;
b) if any damage is identified before Completion Date and if it is subject
to quantification and exceeds the amount of USD 5,500,000 (five millions and
five hundred thousand Dollars), AMTROL may choose to reduce the price for such
amount of USD 5,500,000 (five millions and five hundred thousand Dollars) or to
denounce this Promissory Agreement, under the terms of clause 20;
c) if any damage is identified before Completion Date and if it is not
subject to quantification, AMTROL may be entitled to denounce this Promissory
Agreement, if the condition established under number three paragraph b) of
clause 20 is verified;
4. If, in accordance with paragraphs a) and b) above, AMTROL considers an
adjustment to the price of the Shares occurs, and ANTONIO MIRANDA does not
agree, the amount of USD 5,500,000 (five millions and five hundred thousand
Dollars) due on Completion Date in accordance with clause 4, shall be handled as
follows, as Final Deposit:
a) the amount of adjustment considered by AMTROL up to the maximum of USD
1,000,000 (one million Dollars) shall be deposited with the Escrow Bank as
Indemnification Escrowed Amount, subject to the terms established by the escrow
agreement hereto attached as Annex I;
b) the remaining of the price shall be paid to ANTONIO MIRANDA through
deposit with the Escrow Bank.
5. The Parties herein undertake to submit the interpretation, qualification
or decision of any situation of mis-representation or non-compliance, as well as
of quantification of respectively caused damages, before the arbitral tribunal,
under the terms of clause 22, if they do not reach an agreement upon such
interpretation, qualification, decision or quantification.
6. AMTROL grants to ANTONIO MIRANDA the right to directly or indirectly
intervene in any negotiation or to contest any claim brought by third parties,
based on any situation which may be deemed as misrepresentation or
non-compliance with any undertaking hereby made and assumed by ANTONIO MIRANDA,
being able, for such purposes, to substitute ALFA or AMTROL, appointing
attorneys at law of his confidence, providing the guarantees or making the
deposits eventually demanded from this latter; AMTROL undertakes to inform
ANTONIO MIRANDA when any claim is brought and to allow him to directly intervene
in any legal, administrative or other proceeding in any way related with any of
such claims, and to freely provide him with all the information and other
material necessary means for the contestation of such claims.
CLAUSE 15
Taxation
1. ANTONIO MIRANDA shall be liable to pay ALFA, from today's date onwards,
any amount which it may be required in respect of any Taxation liability
relating to any business or other actions conducted by ALFA until 1st January
1997, to the extent such amounts are not fully provided for in the 1997
accounts; ANTONIO MIRANDA shall also be liable to pay ALFA any amount of
Taxation for which it may be liable constituting fines and interest due and
accrued related to facts occurred between 1st January 1997 and 30th June 1997.
2. The rights and obligations established under clause 14 shall be
applicable, with the necessary adaptations, to any claim related with Taxation.
3. The rights arising from this clause for AMTROL shall elapse on 31st
December 2001, save in what concerns any fines, in which case they shall elapse
on 30th June 2002.
CLAUSE 16
Specific performance
Further to specific performance of the Agreement established under numbers
two and six of clause 7 and notwithstanding the amount paid as down payment, any
of the Parties may request before the arbitral tribunal the specific performance
of this Promissory Agreement, in order to obtain the judicial decision
substituting the contractual declaration of the missing Party.
CLAUSE 17
Communications and confidentiality
1. Save AMTROL's legal obligations, no public communication or disclosure
by means of literature or trade shows in connection with the existence or the
subject matter of this Promissory Agreement or any ancillary matter shall be
made or issued by or on behalf of any of the Parties.
2. Except for the disclosure of information to a Party's professional
advisers, auditors and bankers, each Party shall treat as confidential all
information received or obtained as a result of entering into or performing this
Promissory Agreement.
CLAUSE 18
Assignment
The Parties agree that the contractual position of AMTROL in this
Promissory Agreement and in all other instruments complementing it, may only be
assigned to a company, directly or indirectly, fully controlled by AMTROL, and
that such assignment shall not require the prior consent of ANTONIO MIRANDA.
CLAUSE 19
Further assurance
Following Completion, ANTONIO MIRANDA shall co-operate with AMTROL and
shall sign and deliver to AMTROL all documents which are necessary to the
transfer of the Shares, and to the fulfilment of the obligations arising from
clause 9.
CLAUSE 20
Termination
1. ANTONIO MIRANDA shall be entitled to denounce this Promissory Agreement
if AMTROL does not sign the Agreement or if it does not deposit the Final
Deposit, in accordance with the terms of this Promissory Agreement.
2. ANTONIO MIRANDA shall also be entitled to denounce this Promissory
Agreement if, until 19th of December 1997, no tacit or express decision of
non-opposition to the Final Agreement made under the terms of the law on
operations of concentration is issued following the notification AMTROL intends
to file and a copy of which shall give to him, after such filing, which shall
occur until the 15th of July 1997.
3. AMTROL shall be entitled, until Completion Date, to denounce this
Promissory Agreement if any of the following circumstances occurs:
a) If the situation foreseen in number three, paragraphs b) and c) of
clause 14 is verified;
b) If ALFA is prevented from exercising its activity or any event occurs
which diminishes ALFA's possibilities of exercising its activity in such a way
it becomes economically meaningless;
c) If the transaction herein agreed has not been duly authorised by the
authorities with jurisdiction on competition law, if such authorisation proves
to be necessary for the Agreement to be executed;
d) If the transaction is authorised subject to certain untenable conditions
for AMTROL making the present transaction as economically meaningless;
4. If termination is caused by AMTROL's fault, ANTONIO MIRANDA, as
contractual fine, shall use as his own the amount of USD 6,000,000 (six millions
Dollars) and shall be entitled to withdraw the amount of USD 4,000,000 (four
millions Dollars), plus accrued interest, from the Initial Escrowed Amount; if
ANTONIO MIRANDA is the faulty part, he shall reimburse AMTROL with the amount of
USD 6,000,000 (six millions Dollars) he received from it in accordance with
number one paragraph a) of clause 5 of this Promissory Agreement and shall pay
it the amount of USD 10,000,000 (ten millions Dollars), as contractual fine,
loosing all and any right to the Initial Escrowed Amount.
5. If the Promissory Agreement is terminated under the terms of number two
of this clause and paragraphs b), c) and d) of number three of this clause, or
under the terms of number one of this clause for a fact not imputable to AMTROL,
or if the execution of the Final Agreement becomes impossible due to a cause not
imputable to any of the Parties, ANTONIO MIRANDA shall reimburse AMTROL with the
amount of USD 6,000,000 (six million Dollars) and shall loose all and any right
to Initial Escrowed Amount.
CLAUSE 21
Survival
All and each of the representations, warranties and undertakings hereby
assumed by each of the Parties are valid and enforceable on their own, if the
Shares are transferred to AMTROL and regardless of the signature of the Final
Agreement on Completion Date and of the contents of the Final Agreement.
CLAUSE 22
Arbitral Tribunal
All disputes arising out of this Promissory Agreement shall be definitively
decided in accordance with Regulamento do Tribunal Arbitral do Centro de
Arbitragem Comercial da Camara de Comercio e Industria Portuguesa / Associacao
Comercial de Lisboa e da Camara de Comercio e Industria do Porto / Associacao
Comercial do Porto, by one or more arbitrators in accordance with such Rules.
The Arbitration shall take place in Porto, Portugal.
CLAUSE 23
Applicable law
Both this Promissory Agreement and the Final Agreement shall be governed by
and construed in accordance with the laws of Portugal.
CLAUSE 24
Headings
The headings contained in this Promissory Agreement and the Annexes hereto
are inserted for convenience of reference only and shall not be taken into
account in the interpretation of any provisions of this Promissory Agreement or
Annexes.
CLAUSE 25
Notices
1. Any notice or communication given under the terms of this Promissory
Agreement shall be in writing and shall be sufficiently given if addressed to:
a) ANTONIO BRANDAO MIRANDA, c/o Calves, SA., Rua de Gondarem, nr.956, 4150
Porto, Portugal, with copies to Mr. Joao Vieira de Castro, Largo do Adro, 9,
4050 Porto, Portugal;
b) AMTROL Inc, 1400 Division Road, West Warwick, Rhode Island, United
States of America, to the attention of Mr. Edward J. Cooney, with copies to Mr.
Jose de Freitas, Av. da Boavista, 1383 - 2, 4100 Porto, Portugal, and Ms.
Margaret Farrell, 1500 Fleet Center, Providence, Rhode Island 02903, United
Sates of America;
CLAUSE 26
Counterparts
This Promissory Agreement is executed in two counterparts each of which is
an original.
CLAUSE 27
Condition of suspension
The validity and effectiveness of this Promissory Agreement are dependant
upon the payment, on today's date, of the amount of six millions Dollars (USD
6,000,000) to ANTONIO MIRANDA by AMTROL, and upon the deposit by this latter,
also on today's date, of the Initial Escrowed Amount with the Escrow Bank, in
accordance with the terms of this Promissory Agreement and escrow agreement
hereto attached as Annex I, on both cases with today's relevant-date and on
today's date communicated to ANTONIO MIRANDA by the Escrow Bank.
Porto, 30th of June 1997
ANTONIO BRANDAO MIRANDA AMTROL, Inc.
PROMISSORY AGREEMENT
ON THE SALE AND PURCHASE OF SHARES
ANNEX I
ESCROW AGREEMENT
AMONG
ANTONIO BRANDAO MIRANDA (hereinafter referred to as ANTONIO MIRANDA or the
VENDOR), married, born at Argivai, Povoa de Varzim, resident at Rua do Molhe,
nr.27, Porto, Portugal
and
AMTROL Inc. (hereinafter referred to as AMTROL or the PURCHASER), with head
offices at 1400 Division Road, West Warwick, Rhode Island, United States of
America, hereby represented by its attorney Jose Carvalho de Freitas, whose
quality and powers for this act are proved by power of attorney, the original of
which shall be attached to ANTONIO MIRANDA's counterpart of the Promissory
Agreement, being a copy attached to AMTROL's counterpart,
and
BPI - BANCO PORTUGUES DO INVESTIMENTO, SA. (hereinafter referred to as
"Escrow Bank"), collective body number 503569046, with the share capital of PTE
35.036.000.000$00, registered before the Commercial Registry of Porto under
number 52258, with head offices at Rua Tenente Valadim, nr.284, 4100 Porto,
Portugal, hereby represented by Mr. Mario Pereira Pinto and Mr. Jorge Alexandre
Lopes de Sa Simoes Cortez;
THE PRESENT ESCROW AGREEMENT (hereinafter referred to as "Escrow
Agreement") IS ENTERED INTO, BEING REGULATED BY THE FOLLOWING RECITALS,
DEFINITIONS AND PROVISIONS:
WHEREAS:
A) ANTONIO MIRANDA and AMTROL entered into a Promissory Agreement on the
sale and purchase of the Shares, on the 30th June 1997, where the sale and
purchase of the Shares was promised for the price of twenty five millions and
five hundred thousand Dollars (USD 25,500,000), under the terms and conditions
thereof established;
B) Under the terms of the Promissory Agreement AMTROL is going to deliver
by means of this Escrow Agreement, on the 30th of June 1997, to the Escrow Bank,
the amount of fourteen millions Dollars (USD 14,000,000), as part of the
down-payment of twenty millions Dollars (USD 20,000,000), being such amount
deposited at the Escrow Bank subject to the conditions established in this
Escrow Agreement;
C) Under the terms of the Promissory Agreement, ANTONIO MIRANDA, is going
to deliver by means of this Escrow Agreement, on the 30th of June 1997, to the
Escrow Bank, the Shares, which shall be there deposited in an account opened
under ANTONIO MIRANDA's and AMTROL's names, being this deposit subject to the
conditions established in this Escrow Agreement;
D) The Promissory Agreement establishes that as consideration for the
transfer of the Shares, AMTROL shall pay ANTONIO MIRANDA, on Completion Date,
the Final Deposit;
E) From the Final Deposit, AMTROL shall be able to deposit, up to the
amount of one million Dollars (USD 1,000,000) as Indemnification Escrowed
Amount, with the Escrow Bank, the amount corresponding to the damages it has
eventually claimed before Completion Date, which have been caused by virtue of
inaccuracies in the warranties and representations provided or by virtue of
non-compliance with the undertakings assumed by ANTONIO MIRANDA, which are
subject to quantification and not accepted by him, as well as those liabilities
arising from Taxation; this deposit shall be subject to the conditions
established in the present Escrow Agreement;
F) The conditions foreseen by this Escrow Agreement shall be applicable to
all earnings born by the deposited amounts referred to in the above recitals;
DEFINITIONS:
The following words and expressions shall have the meaning hereby defined
when initialised with capital letters, either singular or plural.
1. Shares
the totality of the shares representing ALFA's share capital, on today's
date held by ANTONIO MIRANDA, the sale and purchase of which is the subject
matter of the Promissory Agreement, and deposited under the terms and conditions
of the present Escrow Agreement;
2. Alfa:
"PETROLEO MECANICA ALFA, SA.", a stock company with the share capital of
PTE 300,000,000$00, collective body number 500 216 738, registered before the
Commercial Registry of Guimaraes under number 1504, with head offices at Brito,
Guimaraes, Portugal;
3. Purchaser:
AMTROL or any company, directly or indirectly, fully controlled by AMTROL
to whom this assigns the contractual position it has in the Promissory Agreement
or it may have in the Final Agreement;
4. Final Agreement:
the definitive agreement of sale and purchase of the Shares to be entered
into by ANTONIO MIRANDA and AMTROL or by a company, directly or indirectly,
fully controlled by this latter and for such purpose indicated until 10 days
before Date of Completion;
5. Escrow Agreement:
the present escrow agreement;
6. Promissory Agreement
the Promissory Agreement of purchase and sale of the Shares entered into by
ANTONIO MIRANDA and AMTROL on the 30th June 1997;
7. Completion Date:
the date of signature of the Agreement on the 22nd December 1997;
8. Indemnification Escrowed Amount:
the escrowed amount corresponding to the damages claimed by the PURCHASER
and not accepted by the VENDOR up to the limit of one million Dollars (USD
1,000,000), together with all respective earnings;
9. Final Deposit
the deposit of five millions and five hundred thousand Dollars, reduced by,
as the case may be, the amount of the Indemnification Escrowed Amount, and/or by
the quantified amount of damages claimed by AMTROL, until Completion Date, and
which have been accepted by ANTONIO MIRANDA, through written document signed by
both;
10. Initial Escrowed Amount:
the escrowed deposit, subject to the conditions of this Escrow Agreement,
of fourteen millions Dollars (USD 14,000,000), made by AMTROL on the 30th of
June 1997 with the Escrow Bank, together with all its respective earnings, or
reduced to four millions Dollars (USD 4,000,000), together with all its
respective earnings in accordance with the terms of number four of clause 7 of
this Escrow Agreement;
11. Business Day
any day, except for Saturday or Sunday or a day where the banks located in
Rhode Island or Porto may be closed or are not legally authorised to be opened;
12. Dollar:
the legal currency of the United States of America;
13. Taxation:
all forms of taxation, duties, imposts, surcharges, levies and rates
imposed in Portugal, including without limitation, imposto sobre o rendimento
das pessoas colectivas (IRC), imposto sobre o valor acrescentado (IVA), imposto
de selo, contribuicoes para a seguranca social payments to the social security,
contribuicao autarquica, imposto sobre as sucessoes e doacoes, imposto municipal
de SISA, taxas alfandegarias, or other similar contributions and, in general,
any interest, penalty or fine in connection therewith and cognate words such as
"Tax", "Taxes", "Taxation liability" and similar shall be similarly defined;
14. Vendor:
ANTONIO MIRANDA;
CLAUSE 1
Escrow Bank
1. ANTONIO MIRANDA and AMTROL hereby designate the Escrow Bank as the
escrow entity for the Shares, Initial Escrowed Amount and Indemnification
Escrowed Amount, and the Escrow Bank hereby agrees to serve in accordance with
the terms, conditions and provisions of this Escrow Agreement.
2. At any time prior to Completion Date, upon request of ANTONIO MIRANDA,
the Escrow Bank shall provide him with proof of exclusive ownership of the
Shares for the purposes of participation in ALFA's general meetings.
CLAUSE 2
Initial Escrowed Amount
The PURCHASER has deposited, on today's date, the Initial Escrowed Amount
with the Escrowed Bank, who confirms to have received it and which it shall only
deliver under the terms and conditions established in this Escrow Agreement.
CLAUSE 3
Escrow for the Shares
The VENDOR has deposited, on today's date, the Shares with the Escrow Bank,
who confirms to have received them and who shall only deliver them under the
terms and conditions established in this Escrow Agreement.
CLAUSE 4
ESCROW ACCOUNTS
1. The Initial Escrowed Amount and the Indemnification Escrowed Amount
shall be deposited in accounts, one for each amount, for this purpose opened
with the Escrow Bank, for the benefit of the VENDOR and the PURCHASER;
2. The Shares shall be deposited in a securities account for this purpose
opened with the Escrow Bank, for the benefit of the VENDOR and the PURCHASER.
3. The Final Deposit shall be delivered with the Escrow Bank, on Completion
Date or within the next five Business Days or before Completion Date if the
VENDOR's dies.
CLAUSE 5
Investments
1. The Escrow Bank shall remunerate the Initial Escrowed Amount and the
Indemnification Escrowed Amount, at the yearly net rate of 5.375%.
2. Notwithstanding the above mentioned, if the Initial Escrowed Amount is
delivered to the VENDOR, he shall be entitled to receive accrued net interest
calculated upon a minimum yearly rate of 7%, being the difference for less,
which may eventually exist between this rate and the net rate obtained under the
terms of the previous number, incurred into by the PURCHASER.
CLAUSE 6
Deliver of the Shares
1. The Escrow Bank, shall deliver the Shares to the PURCHASER:
a) upon receipt of the certificate signed by the VENDOR and the PURCHASER,
in the form of Annex I attached hereto, together with a copy of the original of
the Final Agreement, also signed by both;
b) upon delivery to the Escrow Bank, within the five Business Day after
Completion Date, of the Final Deposit and upon receipt of the certificate,
signed by the PURCHASER, in the form of Annex II attached hereto, together with
the original of the Final Agreement signed by AMTROL, the contents of which are
equal to the draft attached hereto in the form of Annex III;
c) upon receipt of the certificate, signed by the PURCHASER, in the form of
Annex IV and together with death certificate of the VENDOR, and delivery of the
Final Deposit with the Escrow Bank;
2. The Escrow Bank, shall deliver the Shares to the VENDOR, or to his heirs
if he dies, from the fifth Business Day, exclusive, counting from Completion
Date, upon receipt of the certificate, signed by the former or the latter, in
the form of Annex V or VI, as the case may be, if any of the situations above
mentioned in paragraphs a), b) and c) of the previous number occurs does not
occur.
3. The Final Deposit shall be reduced by the quantified amount of the
damages claimed by the PURCHASER until Completion Date, which have been accepted
by the VENDOR, in a written document signed by both, given the PURCHASER
delivers with the Escrow Bank the certificate in form of Annex VII attached
hereto, together with the original of the document referred to in this number.
CLAUSE 7
Delivery of the Initial Escrowed Amount and of the Final Deposit
1. The Escrow Bank shall deliver the Initial Escrowed Amount and the Final
Deposit to the VENDOR or to his heirs, as the case may be, by wire transfer for
the account number 50008.9 opened with the Escrow Bank under ANTONIO MIRANDA's
name or his heirs, if he dies, or by cheque issued by the Escrow Bank under the
VENDOR's name if he so requests the Escrow Bank in writing, if any of the
situations foreseen in number one of clause 6 occurs and upon receipt of the
certificates and documents also thereof foreseen.
2. The Escrow Bank shall deliver the Initial Escrowed Amount to the
PURCHASER if the situation referred to in number two of the previous clause
occurs and upon receipt of the certificate in the form of Annex VIII attached
hereto, with observance of number four of this clause.
3. If, under the terms of number two of the previous clause and until the
twentieth Business Day, inclusive, after Completion Date, the VENDOR has not
asked the Escrow Bank for the delivery of the Shares, the Escrow Bank, upon
receipt of the certificate in the form of Annex IX attached hereto, given by the
PURCHASER, shall deliver the Initial Escrowed Amount to the PURCHASER, with
observance, notwithstanding, of number four of this clause.
4. If the VENDOR has, within the term referred to in the previous number,
presented to the Escrow Bank a notice of arbitration in the form of Annex X
attached hereto, the Escrow Bank, upon receipt of the certificate in the form of
Annex IX attached hereto, shall deliver to the PURCHASER only ten millions
Dollars (USD 10,000,000) from the Initial Escrowed Amount, which shall be
reduced to four millions Dollars (USD 4,000,000).
5. If the VENDOR does not submit within fifty Business Days, counting from
Completion Date, before the arbitral tribunal the claim communicated to the
Escrow Bank through the certificate in form of Annex X attached hereto, the
Escrow Bank shall deliver to the PURCHASER the Initial Escrowed Amount upon
receipt of the certificate in form of Annex XI attached hereto, together with a
certified copy stating there is no arbitration instance pending before the
Arbitral Centre identified in clause 19.
CLAUSE 8
Arbitration Decision
Apart from the situations foreseen in clauses 6 and 7, the Escrow Bank
shall only deliver the Shares and the Initial Escrowed Amount to the VENDOR, his
heirs and/or to the PURCHASER, as the case may be, in compliance with
arbitration decisions, upon receipt of the certificate in the form of Annex XII
or XIII, as may be applicable, signed by who presents it.
CLAUSE 9
Common Accord
The Escrow Bank shall, always and at any time, deliver both the Shares and
the whole or part of the Initial Escrowed Amount to the VENDOR, his heirs and/or
to the PURCHASER, as the case may be, under the terms established by the
certificate in the form of Annex XIV or XV, as may be applicable, signed by both
the VENDOR or his heirs and the PURCHASER.
CLAUSE 10
Refusal of authorisation
If the competent authorities on competition law refuse authorisation for
the transfer of the Shares from the VENDOR to the PURCHASER, either of them may
request the Escrow Bank the release of the Shares to the VENDOR and the delivery
of the Initial Escrowed Amount to the PURCHASER, upon receipt in the form of
Annex XVI or XVII hereto attached, as the case may be, together with a copy of
such decision certified by the referred to authorities.
CLAUSE 11
Deliver of the Indemnification Escrowed Amount
The whole or parts of the Indemnification Escrowed Amount shall be
delivered by the Escrow Bank:
a) to the VENDOR and/or the PURCHASER under the terms and conditions, which
they have both defined by common accord, upon receipt of the certificate, made
and signed by both, in the form of Annexes XVIII or XIX, as may be applicable;
b) to the VENDOR, his heirs or to the PURCHASER, by means of arbitration
decision, under the terms by such decision defined and to the extent permitted
by the existing amount of the Indemnification Escrowed Amount, upon receipt of
the certificate in the form of Annex XX or XXI, as may be applicable;
CLAUSE 12
Extinction of the Escrowed Agreement
This Escrow Agreement extinguishes, releasing the Escrow Bank from all
duties and obligations hereby established, upon delivery of the totality of the
funds in the accounts of Initial Escrowed Amount and Indemnification Escrowed
Amount and upon delivery of the Shares.
CLAUSE 13
Responsibilities of the Escrow Bank
1. The Escrow Bank shall have no duties or responsibilities except those
expressly set forth herein.
2. The Escrow Bank shall have no responsibility for the validity of any
agreements referred to in this Escrow Agreement, or for the performance of any
such agreements by any party thereto or for the interpretation of any of the
provisions of any of such agreements.
3. The Escrow Bank may only be held liable for bad-faith, wilful misconduct
or gross negligence on its part, not being held responsible for actions or
omissions in reliance on any certificate, instruction, direction or other
instrument whatsoever received by the Escrow Bank in writing under this Escrow
Agreement, not only as to its due execution and the validity and effectiveness
of its provisions, but also as to the truth and accuracy of any information
therein contained, which the Escrow Bank in good faith believes to be genuine
and to have been signed and presented by a proper person or persons or their
counsel.
4. Even if any controversy arises between one or more of the parties
hereto, or between any of the parties hereto and any third person not a party
hereto, as to whether or not to whom the Escrow Bank shall deliver the cash, or
a part thereof, of the Initial Escrowed Amount and/or Indemnification Escrowed
Amount or the Shares, or as to any matter arising out of or relating to this
Escrow Agreement, the Escrow Bank shall not be required to determine such
dispute, but it shall rigorously observe the instructions it receives in
accordance with this Escrow Agreement, not being, in any case, held liable for
such observance.
5. The Escrow Bank may rely on any notice, instruction, direction,
certificate, statement, request, consent, confirmation, agreement or other
instrument in writing which it believes to be genuine and to have been signed or
presented by a proper person or persons, having, in what respects the
communications foreseen in clauses 6 to 11 of this Escrow Agreement, the
signature of the VENDOR or his heirs, if duly qualified as such by notarial
deed, as well as the signature and sufficiency of powers of the proper
representative of the PURCHASER, be legalised by notary or by the Escrow Bank.
6. This Escrow Agreement set forth the entire agreement among the VENDOR
and the PURCHASER and the Escrow Bank with respect to the escrow accounts, the
distribution of the cash held therein and the release of the Shares.
7. Notwithstanding any provision to the contrary contained in any other
agreement between any of the parties hereto, the Escrow Bank shall have no
interest in the escrowed accounts or in the Shares, being its intervention
limited as escrow holder, having only possession of them under such terms.
8. The Escrow Bank shall have no duty to ascertain the contents of, or the
compliance of ANTONIO MIRANDA and/or AMTROL with the Promissory Agreement or the
Final Agreement.
CLAUSE 14
Fees and Expenses
1. For the services rendered by the Escrow Bank in the execution of this
Escrow Agreement, this Escrow Bank shall charge AMTROL a fee of PTE 500,000$00
(five hundred thousand Portuguese Escudos), plus VAT at the applicable rate.
2. The VENDOR and the PURCHASER hereby undertake to make the transfer of
the Shares through the Escrow Bank, or through whom this latter indicates, being
fixed the broker's fees as PTE 1,500,000$00 (one million and five hundred
thousand Portuguese escudos), which shall be incurred into by the PURCHASER.
CLAUSE 15
Notices
1. All communications required pursuant to this Escrow Agreement shall be
addressed to the Escrow Bank, ANTONIO MIRANDA and AMTROL, as follows:
n If to the Escrow Bank:
BPI - Banco Portugues do Investimento, SA.
Rua Tenente Valadim, n 284
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Fax: 00-351-2-6000 856
n If to ANTONIO MIRANDA:
Mr. Antonio Brandao Miranda,
c/o Calves, SA.,
Rua de Gondarem, nr.956,
4150 Porto,
Portugal;
Fax: 00-351-2-617 7282
with copy to:
Mr. Joao Vieira de Castro,
Largo do Adro, nr. 9,
4050 Porto,
Portugal;
Fax: 00-351-2-609 4688
n If to AMTROL:
AMTROL Inc.,
1400 Division Road,
West Warwick, RI 02893
U.S.A.
Att. of Mr. Edward J. Cooney,
Fax: 00-1-401-884-7816
with copies to:
Mr. Jose de Freitas,
Av. da Boavista, 1383 - 2,
4100 Porto,
Portugal,
Fax: 00-351-2-6001848
and
Ms. Margaret D. Farrell, Esq.
Hinckley, Allen & Snyder
1500 Fleet Center,
Providence, R I 02903,
U.S.A.
Fax: 001-401-277-9600
2. Any notice or other communication required or permitted under any of the
provisions of this Escrow Agreement shall be sufficiently given if delivered in
person or sent by telecopy or by registered mail with receipt, sent by express
mail, addressed to the respective address of the parties hereto as set forth
above and to such other address or number of telecopy as shall be hereafter
furnished in writing by any such party.
3. All notices or other communications shall be deemed to have been
received on the date of delivery, unless if sent by telecopy, in which case, if
received on any day which is not a Business Day or after working hours,
considered as between 8 a.m. and 5 p.m. of any Business Day, shall be deemed to
have been received in the next Business Day.
CLAUSE 16
Parties in Interest
The rights and obligations arising from this Escrow Agreement shall be
binding upon the parties hereto and their respective heirs, successors and
assigns, including without limitation any private or collective entity, who or
which assumes to this Escrow Agreement, Promissory Agreement or Agreement the
contractual position of ANTONIO MIRANDA or AMTROL, who or which shall be
immediately bound by the rights and obligations of the substituted party,
arising from this Escrow Agreement.
CLAUSE 17
Captions
The Section Captions used herein are for reference purposes only and shall
not in any way affect the meaning or interpretation of this Escrow Agreement.
CLAUSE 18
Indemnification of the Escrow Bank
1. The VENDOR and the PURCHASER shall indemnify the Escrow Bank, for the
damages they cause to it for the defective fulfilment of this Escrow Agreement.
2. On its turn, the Escrow Bank shall indemnify the VENDOR and the
PURCHASER for the damages it causes to them for the defective fulfilment of this
Escrow Agreement.
3. The obligations of the PURCHASER herein arising from shall survive the
renounce ou substitution of the Escrow Bank and to any form of termination of
this Agreement, including without limitation any termination under the terms of
bankruptcy law.
CLAUSE 19
Dispute Resolution
All disputes arising out of this Promissory Agreement shall be definitively
decided in accordance with Regulamento do Tribunal Arbitral do Centro de
Arbitragem Comercial da Camara de Comercio e Industria Portuguesa / Associacao
Comercial de Lisboa e da Camara de Comercio e Industria do Porto / Associacao
Comercial do Porto, by one or more arbitrators in accordance with such Rules.
The Arbitration shall take place in Porto, Portugal.
CLAUSE 20
Governing Law
This Escrow Agreement shall be construed and interpreted in accordance with
and governed by the laws of Portugal.
CLAUSE 21
Counterparts
This Agreement shall be executed in three counterparts, each of one
constituting an original.
Porto, 30th of June 1997
ANTONIO BRANDAO MIRANDA
AMTROL Inc.
BPI - BANCO PORTUGUES DO INVESTIMENTO, SA.
ESCROW AGREEMENT
ANNEX I
FORM OF JOINT RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., Escrow Bank in accordance with
the Escrow Agreement referred to below Address: Rua Tenente Valadim, nr.284,
4100 Porto Portugal Att.: Mr. Mario Pereira Pinto Ref.: Escrow Agreement, dated
as of 30th June 1997, by and among the Escrow Bank, ANTONIO MIRANDA and AMTROL
(the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to number one, paragraph a) of clause 6 of the Escrow Agreement,
the undersigned (the VENDOR or Mr._____ a duly authorized representative) and
(Mr. _________ a duly authorized officer of the PURCHASER) hereby certify that
attached hereto is a true and correct copy of the Final Agreement and authorise
the Escrow Bank to deliver the whole of the Initial Escrow Amount and the Final
Deposit to the VENDOR and to deliver the Shares to the PURCHASER.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ___ of _______.
Very truly yours,
THE VENDOR
THE PURCHASER
ESCROW AGREEMENT
ANNEX II
PURCHASER RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., Escrow Bank in accordance with
the Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, by and among the
Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to number one, paragraph b) of clause 6 of the Escrow Agreement,
the undersigned, Mr. _____ a duly authorised officer of the PURCHASER, hereby
certifies to the Escrow Bank that attached hereto is a true and correct copy of
the Final Agreement, duly executed by an authorised officer of the PURCHASER,
and that, because it has delivered with the Escrow Bank the Final Deposit,
requests the Shares, deposited in the account of deposit of Shares, are
immediately released to the PURCHASER and that the Initial Escrow Amount and
Final Deposit are put at the VENDOR's disposal.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ___ of _______.
Very truly yours,
THE PURCHASER
ESCROW AGREEMENT
ANNEX III
AGREEMENT ON THE SALE AND PURCHASE OF SHARES
ANTONIO BRANDAO MIRANDA (hereinafter referred to as ANTONIO MIRANDA),
married under the legal separation regimen, born at Argivai, Povoa de Varzim,
resident at Rua do Molhe, nr.27, Porto, Portugal
and
AMTROL Inc. or a company fully controlled by it (hereinafter referred to as
AMTROL), with head offices at 1400 Division Road, West Warwick, Rhode Island,
United States of America, hereby represented by its president John P. Cashman,
WHEREAS:
ANTONIO MIRANDA is the only owner of the shares representing the share
capital of "PETROLEO MECANICA ALFA, SA." (hereinafter referred to as ALFA), with
head offices at Brito, Guimaraes;
AMTROL wants to purchase and ANTONIO MIRANDA wants to sell the 300,000
shares representing the share capital of ALFA;
THE ABOVE IDENTIFIED PARTIES AGREE TO ENTER INTO THIS AGREEMENT OF SALE AND
PURCHASE OF SHARES, WHICH SHALL BE GOVERNED BY THE FOLLOWING PROVISIONS:
CLAUSE 1
Definitions
In this agreement, the following words and expressions shall have the
following meaning:
1.1. SHARES:
the totality of the shares representing the issued share capital of ALFA,
on today's date held by ANTONIO MIRANDA and which are the subject matter of this
Agreement;
1.2. DOLLAR:
the legal currency of the United States of America;
1.3. ALFA or COMPANY:
"PETROLEO MECANICA ALFA, SA.", a stock company with the share capital of
PTE 300,000,000$00, collective body number 500 216 738, registered before the
Commercial Registry of Guimaraes under number 1504, with head offices at Brito,
Guimaraes, Portugal;
CLAUSE 2
Sale and purchase
1. ANTONIO MIRANDA sells and AMTROL, or the company fully controlled by it,
indicated until 10 days before today's date, purchases all the Shares, with the
nominal value of PTE 1,000,000$00 each, representing the totality of the share
capital of ALFA.
2. All patrimonial rights relating to the Shares or to the quality of
shareholder, verified from 1st January 1997, shall be transferred to AMTROL.
3. The patrimonial rights mentioned in the previous paragraph shall
include, namely and without limitation:
a) right to profits or dividends;
b) right to shareholder's loans to ALFA;
c) right to subscribe increases in ALFA's issued share capital;
d) right to supplementary capital / equity;
CLAUSE 3
Price
The price for the sale and purchase of the Shares agreed between the
parties is of USD 25,500,000 (twenty five millions and five hundred thousand
Dollars), which AMTROL has already paid and which ANTONIO MIRANDA hereby gives
his acquittal for.
CLAUSE 4
Intellectual property rights
1. ANTONIO MIRANDA grants AMTROL or ALFA, by the former's (AMTROL) choice,
as the case may be, the right to use the word COMANOR as a non-registered trade
mark.
2. ANTONIO MIRANDA further undertakes not to prevent or difficult the
registry of the trade mark COMANOR, under the name of AMTROL or ALFA, giving his
express authorisation, if need be, for such purposes.
CLAUSE 5
Non-competition
ANTONIO MIRANDA undertakes not to exercise, for a term of five years
counting from today, any activity which directly or indirectly may compete with
the activity carried out by the Company, which is the manufacture and/or
reparation or requalification (refurbishment?) of reusable or dischargeable
containers, used for G.P.L., for refrigerating gases or for technical gases.
CLAUSE 6
Further assurance
ANTONIO MIRANDA shall co-operate with AMTROL and shall sign and deliver to
AMTROL all documents which may be necessary for the transfer of the Shares.
CLAUSE 7
Applicable law and arbitration
1. This agreement is governed by Portuguese law.
2. All disputes arising out of this Final Agreement shall be definitively
decided in accordance with Regulamento do Tribunal Arbitral do Centro de
Arbitragem Comercial da Camara de Comercio e Industria Portuguesa / Associacao
Comercial de Lisboa e da Camara de Comercio e Industria do Porto / Associacao
Comercial do Porto, by one or more arbitrators in accordance with such Rules.
The Arbitration shall take place in Porto and the language shall be Portuguese.
CLAUSE 8
Notices
1. Any notice or communication given under the terms of this Promissory
Agreement shall be in writing and shall be sufficiently given if addressed to:
a) AMTROL Inc, 1400 Division Road, West Warwick, Rhode Island, United
States of America, to the attention of Mr. Edward Cooney, with copies to Mr.
Jose de Freitas, Av. da Boavista, 1383 - 2, 4100 Porto, Portugal, and Ms.
Margaret Farrell, 1500 Fleet Center, Providence, Rhode Island 02903, United
Sates of America;
b) ANTONIO BRANDAO MIRANDA, c/o Calves, SA., Rua de Gondarem, nr.956, 4150
Porto, Portugal, with copies to Mr. Joao Vieira de Castro, Largo do Adro, 9,
4050 Porto, Portugal;
CLAUSE 9
Counterparts
This Promissory Agreement is executed in two counterparts each of which is
an original.
Porto, ____ of ________
ESCROW AGREEMENT
ANNEX IV
PURCHASER RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, entered into among
the Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to number one, paragraph c) of clause 6 of the Escrow Agreement,
the undersigned Mr. ______ a duly authorized officer of the PURCHASER hereby
certifies to the Escrow Bank that attached hereto is the VENDOR's death
certificate and because it has delivered with the Escrow Bank the Final Deposit,
requests that the Shares, deposited in the account of deposit of Shares, are
immediately released to the PURCHASER, and that the Initial Escrow Amount and
Final Deposit are put at the VENDOR's heirs disposal.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE PURCHASER
ESCROW AGREEMENT
ANNEX V
VENDOR RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, entered into among
the Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to number two of clause 6 of the Escrow Agreement, the undersigned
(the VENDOR or Mr. _____ his duly authorized representative) requests the Escrow
Bank the release of the Shares, deposited in the account for shares, given the
fact none of the situations foreseen in paragraphs a), b) and c) of number one
of clause 6 of the Escrow Agreement has, until today's date, occurred and given
the fact more than five Business Days have already passed since Completion Date.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR / his duly authorized representative
ESCROW AGREEMENT
ANNEX VI
VENDOR's HEIRS RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, entered into among
the Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to number two of clause 6 of the Escrow Agreement, the undersigned
(VENDOR's heirs) hereby certify(ies) to the Escrow Bank that they (he/she) are
(is) legitimated as heir(s) through the notarial deed of legitimacy hereto
attached, and request(s) the Escrow Bank to deliver to them (him/her) the
Shares, deposited in the escrow account of deposit of Shares given the fact none
of the situations foreseen in paragraphs a), b) and c) of number one of clause 6
has, until today's date, occurred and given the fact more than five Business
Days have already passed since Completion Date.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR's HEIR(S)
ESCROW AGREEMENT
ANNEX VII
NOTICE FOR REDUCTION OF THE FINAL DEPOSIT
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, entered into among
the Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to number three of clause 6 of the Escrow Agreement, the
undersigned Mr. _____ a duly authorized officer of the PURCHASER, hereby
certifies the Escrow Bank that, in accordance with the document signed both by
the VENDOR and PURCHASER, the Final Deposit was reduced for the amount of
_________ by reduction of the amount of ____________
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE PURCHASER
ESCROW AGREEMENT
ANNEX VIII
PURCHASER RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, entered into among
the Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to number two of clause 7 of the Escrow Agreement, the undersigned
Mr. _________ a duly authorised officer of the PURCHASER, requests the Escrow
Bank the delivery of the Initial Escrowed Amount given the fact the situation
foreseen in number two of clause 6 of the Escrow Agreement has occurred.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE PURCHASER
ESCROW AGREEMENT
ANNEX IX
PURCHASER RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, entered into among
the Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to number three of clause 7 of the Escrow Agreement, the
undersigned Mr. _________ a duly authorized officer of the PURCHASER, requests
the Escrow Bank the delivery of the Initial Escrowed Amount given the fact the
VENDOR has not, until today's date, requested the Escrow Bank the delivery of
the Shares, having already passed more than twenty Business Days since
Completion Date.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE PURCHASER
ESCROW AGREEMENT
ANNEX X
ARBITRATION NOTICE DUE TO FAULT OF THE PURCHASER
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, entered into among
the Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to number four of clause 7 of the Escrow Agreement, the
undersigned (VENDOR or Mr. ________ a duly authorised representative of the
VENDOR) or (his heirs, duly legitimated by notarial deed), hereby certifies the
Escrow Bank of a disputed claim for faulty breach of the Promissory Agreement by
the PURCHASER and certifies that the same is going to be submitted before an
arbitration tribunal, within fifty Business Days counting from Completion Date,
in accordance with clause 22 of the Promissory Agreement and that a copy of this
arbitration notice has been delivered to the PURCHASER.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR/ his legitimate representative/THE VENDOR's HEIR(S)
ESCROW AGREEMENT
ANNEX XI
PURCHASER RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, entered into among
the Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to number five of clause 7 of the Escrow Agreement, the
undersigned Mr. _______ a duly authorised representative of the PURCHASER,
hereby requests the Escrow Bank the delivery of the Initial Escrowed Amount,
reduced to four millions of Dollars (USD 4,000,000), given the fact that, having
passed more than fifty Business Days counting from Completion Date, the VENDOR
has not submitted to the arbitral tribunal, until today's date, the claim which
he has previously communicated to the Escrow Bank, under the terms of number
four of clause 7, as it is certified by the certified copy hereto attached.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE PURCHASER
ESCROW AGREEMENT
ANNEX XII
NOTICE OF TRIBUNAL ARBITRAL's DECISION
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, entered into among
the Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to clause 8 of the Escrow Agreement, the undersigned (the VENDOR
or Mr. ________ a duly authorized representative) or (Mr. _______ a duly
authorized officer of the PURCHASER), hereby certifies the Escrow Bank of the
decision of the arbitral tribunal attached hereto and, in accordance with such
decision, requests the delivery of the Shares and/or the Initial Escrowed
Amount, under the specific terms thereto established.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR / Duly authorised representative of the VENDOR / THE PURCHASER
ESCROW AGREEMENT
ANNEX XIII
NOTICE OF TRIBUNAL ARBITRAL's DECISION
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, entered into among
the Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to clause 8 of the Escrow Agreement, the undersigned (the VENDOR's
heir(s)), hereby certifies(y) he/she(they) is (are) legitimated as heir(s),
through the notarial deed of legitimacy hereto attached and hereby notifies(y)
the Escrow Bank of the decision of the arbitral tribunal attached hereto and, in
accordance with such decision, requests (request) the delivery of the Shares
and/or the Initial Escrowed Amount, under the specific terms thereto
established.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR's HEIR(S)
ESCROW AGREEMENT
ANNEX XIV
FORM OF JOINT RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, by and among the
Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to clause 9 of the Escrow Agreement, the undersigned (the VENDOR
or Mr. _______ a duly authorized representative) and (Mr. _________ a duly
authorized officer of the PURCHASER) hereby request the Escrow Bank, by common
accord, to release the Shares and/or the (or part of the) Initial Escrowed
Amount to the VENDOR or to release the Shares and/or the (or part of the)
Initial Escrowed Amount to the PURCHASER
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR / His duly representative
THE PURCHASER
ESCROW AGREEMENT
ANNEX XV
FORM OF JOINT RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, by and among the
Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to clause 9 of the Escrow Agreement, the undersigned (the VENDOR's
heir(s)), who certifies(y) to be legitimated as heir(s) through notarial deed of
legitimacy hereto attached, and (Mr. ________ a duly authorized officer of the
PURCHASER), hereby request the Escrow Bank, by common accord, to release the
Shares and/or the (or part of the) Initial Escrowed Amount to the VENDOR's
heir(s) or to release the Shares and/or the (or part of the) Initial Escrowed
Amount to the PURCHASER.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR's HEIR(S)
THE PURCHASER
ESCROW AGREEMENT
ANNEX XVI
PURCHASER RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, by and among the
Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to clause 10 of the Escrow Agreement, the undersigned Mr.
__________ a duly authorised officer of the PURCHASER, hereby requests the
Escrow Bank to release the Initial Escrowed Amount to the PURCHASER and to put
the Shares at the VENDOR's disposal, because the transfer of the Shares was not
authorised by the competent authorities on competition law, as certified in the
certificate hereto attached,.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE PURCHASER
ESCROW AGREEMENT
ANNEX XVII
VENDOR RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, by and among the
Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to clause 10 of the Escrow Agreement, the undersigned (the VENDOR
or Mr. ________ a duly authorized representative), or (the VENDOR's heir(s), who
certifies(y) to be legitimated as heir(s) through notarial deed of legitimacy
hereto attached), hereby requests the Escrow Bank to release the Shares to
him/her/them and that the Initial Escrowed Amount is put at the PURCHASER's
disposal, because the transfer of the Shares was not authorised by the competent
authorities on competition law, as certified in the certificate hereto attached.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR/ his duly representative/THE VENDOR's HEIR(S)
ESCROW AGREEMENT
ANNEX XVIII
JOINT RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, by and among the
Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to paragraph a) of clause 11 of the Escrow Agreement, the
undersigned (the VENDOR or Mr. ________ a duly authorized representative) and
(Mr. ________ a duly authorized officer of the PURCHASER) hereby request the
Escrow Bank, by common accord, to release the (or part of the) Indemnification
Escrowed Amount to the VENDOR or to release the (or part of the) Indemnification
Escrowed Amount to the PURCHASER.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR/his duly representative
THE PURCHASER
ESCROW AGREEMENT
ANNEX XIX
FORM OF JOINT RELEASE CERTIFICATE
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, by and among the
Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to paragraph a) of clause 11 of the Escrow Agreement, the
undersigned (the VENDOR's heir(s)), who certifies(y) to be legitimated as
heir(s) through notarial deed of legitimacy hereto attached, and (Mr. ________ a
duly authorized officer of the PURCHASER), hereby request the Escrow Bank, by
common accord, to release the (or part of the) Indemnification Escrowed Amount
to the VENDOR's heir(s) or to release the (or part of the) Indemnification
Escrowed Amount to the PURCHASER.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR's HEIR(S)
THE PURCHASER
ESCROW AGREEMENT
ANNEX XX
NOTICE OF ARBITRAL TRIBUNAL's DECISION
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, by and among the
Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to paragraph b) of clause 11 of the Escrow Agreement, the
undersigned (the VENDOR or Mr. ________ a duly authorized representative) (Mr.
________ a duly authorized officer of the PURCHASER) hereby certifies the Escrow
Bank of the decision of the arbitral tribunal attached hereto and, in accordance
with such decision, requests the delivery of the (or part of the)
Indemnification Escrowed Amount, under the specific terms thereto established.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR/Duly authorized representative of the VENDOR/THE PURCHASER
ESCROW AGREEMENT
ANNEX XXI
NOTICE OF ARBITRAL TRIBUNAL's DECISION
To: Banco Portugues do Investimento, SA., as Escrow Bank in accordance with
Escrow Agreement referred to below
Address: Rua Tenente Valadim, nr.284,
4100 Porto
Portugal
Att.: Mr. Mario Pereira Pinto
Ref.: Escrow Agreement, , dated as of 30th June 1997, by and among the
Escrow Bank, ANTONIO MIRANDA and AMTROL (the "Escrow Agreement")
Ladies and Gentlemen:
Pursuant to paragraph b) of clause 11 of the Escrow Agreement, the
undersigned (the VENDOR's heir(s)), who certifies(y) to be legitimated as
heir(s) through notarial deed of legitimacy hereto attached, and hereby
certifies(y) the Escrow Bank of the decision of the arbitral tribunal attached
hereto and, in accordance with such decision, requests (request) the delivery of
the (or part of the) Indemnification Escrowed Amount, under the specific terms
thereto established.
Unless otherwise defined herein, the terms used herein shall have the
respective meanings provided such terms in the Escrow Agreement.
Porto, ____ of __________
Very truly yours,
THE VENDOR's HEIR(S)
ANNEX II
TO THE PROMISSORY AGREEMENT
AGREEMENT ON THE SALE AND PURCHASE OF SHARES
ANTONIO BRANDAO MIRANDA (hereinafter referred to as ANTONIO MIRANDA),
married under the legal separation regimen, born at Argivai, Povoa de Varzim,
resident at Rua do Molhe, nr.27, Porto, Portugal
and
AMTROL Inc. or a company fully controlled by it (hereinafter referred to as
AMTROL), with head offices at 1400 Division Road, West Warwick, Rhode Island,
United States of America, hereby represented by its president John P. Cashman,
WHEREAS:
ANTONIO MIRANDA is the only owner of the shares representing the share
capital of "PETROLEO MECANICA ALFA, SA." (hereinafter referred to as ALFA), with
head offices at Brito, Guimaraes;
AMTROL wants to purchase and ANTONIO MIRANDA wants to sell the 300,000
shares representing the share capital of ALFA;
THE ABOVE IDENTIFIED PARTIES AGREE TO ENTER INTO THIS AGREEMENT OF SALE AND
PURCHASE OF SHARES, WHICH SHALL BE GOVERNED BY THE FOLLOWING PROVISIONS:
CLAUSE 1
Definitions
In this agreement, the following words and expressions shall have the
following meaning:
1.1. SHARES:
the totality of the shares representing the issued share capital of ALFA,
on today's date held by ANTONIO MIRANDA and which are the subject matter of this
Agreement;
1.2. DOLLAR:
the legal currency of the United States of America;
1.3. ALFA or COMPANY:
"PETROLEO MECANICA ALFA, SA.", a stock company with the share capital of
PTE 300,000,000$00, collective body number 500 216 738, registered before the
Commercial Registry of Guimaraes under number 1504, with head offices at Brito,
Guimaraes, Portugal;
CLAUSE 2
Sale and purchase
1. ANTONIO MIRANDA sells and AMTROL, or the company fully controlled by it,
indicated until 10 days before today's date, purchases all the Shares, with the
nominal value of PTE 1,000,000$00 each, representing the totality of the share
capital of ALFA.
2. All patrimonial rights relating to the Shares or to the quality of
shareholder, verified from 1st January 1997, shall be transferred to AMTROL.
3. The patrimonial rights mentioned in the previous paragraph shall
include, namely and without limitation:
a) right to profits or dividends;
b) right to shareholder's loans to ALFA;
c) right to subscribe increases in ALFA's issued share capital;
d) right to supplementary capital / equity;
CLAUSE 3
Price
The price for the sale and purchase of the Shares agreed between the
parties is of USD 25,500,000 (twenty five millions and five hundred thousand
Dollars), which AMTROL has already paid and which ANTONIO MIRANDA hereby gives
his acquittal for.
CLAUSE 4
Intellectual property rights
1. ANTONIO MIRANDA grants AMTROL or ALFA, by the former's (AMTROL) choice,
as the case may be, the right to use the word COMANOR as a non-registered trade
mark.
2. ANTONIO MIRANDA further undertakes not to prevent or difficult the
registry of the trade mark COMANOR, under the name of AMTROL or ALFA, giving his
express authorisation, if need be, for such purposes.
CLAUSE 5
Non-competition
ANTONIO MIRANDA undertakes not to exercise, for a term of five years
counting from today, any activity which directly or indirectly may compete with
the activity carried out by the Company, which is the manufacture and/or
reparation or requalification (refurbishment?) of reusable or dischargeable
containers, used for G.P.L., for refrigerating gases or for technical gases.
CLAUSE 6
Further assurance
ANTONIO MIRANDA shall co-operate with AMTROL and shall sign and deliver to
AMTROL all documents which may be necessary for the transfer of the Shares.
CLAUSE 7
Applicable law and arbitration
1. This agreement is governed by Portuguese law.
2. All disputes arising out of this Final Agreement shall be definitively
decided in accordance with Regulamento do Tribunal Arbitral do Centro de
Arbitragem Comercial da Camara de Comercio e Industria Portuguesa / Associacao
Comercial de Lisboa e da Camara de Comercio e Industria do Porto / Associacao
Comercial do Porto, by one or more arbitrators in accordance with such Rules.
The Arbitration shall take place in Porto and the language shall be Portuguese.
CLAUSE 8
Notices
1. Any notice or communication given under the terms of this Promissory
Agreement shall be in writing and shall be sufficiently given if addressed to:
a) AMTROL Inc, 1400 Division Road, West Warwick, Rhode Island, United
States of America, to the attention of Mr. Edward Cooney, with copies to Mr.
Jose de Freitas, Av. da Boavista, 1383 - 2, 4100 Porto, Portugal, and Ms.
Margaret Farrell, 1500 Fleet Center, Providence, Rhode Island 02903, United
Sates of America;
b) ANTONIO BRANDAO MIRANDA, c/o Calves, SA., Rua de Gondarem, nr.956, 4150
Porto, Portugal, with copies to Mr. Joao Vieira de Castro, Largo do Adro, 9,
4050 Porto, Portugal;
CLAUSE 9
Counterparts
This Promissory Agreement is executed in two counterparts each of which is
an original.
Porto, ____ of ________
COMPLEMENTARY DOCUMENT TO THE PROMISSORY AGREEMENT
ANTONIO BRANDAO MIRANDA (hereinafter referred to as ANTONIO MIRANDA),
married, born at Agivai, Povoa de Varzim, resident at Rua do Molhe, nr.27,
Porto, Portugal
and
AMTROL Inc. (hereinafter referred to as AMTROL), with head offices at 1400
Division Road, West Warwick, Rhode Island, United States of America, hereby
represented by its attorney Jose Carvalho de Freitas, whose quality and powers
for this act are proved by power of attorney, the original of which shall be
attached to ANTONIO MIRANDA's counterpart of the Promissory Agreement, being a
copy attached to AMTROL's counterpart.
HAVING REGARD THAT:
A) All and any definition included and used in the Promissory Agreement of
sale and purchase of the Shares, representing the share capital of ALFA signed
on today's date by the Parties are valid and used in this document;
B) It is AMTROL's will to take over the management control of ALFA from the
date of signature of the Promissory Agreement;
C) The Parties do not wish the text of this document be expressly disclosed
in the body of the Promissory Agreement, although forming part of the Promissory
Agreement, being its execution dependant upon it and being all rights,
obligations, representations and warranties of such Promissory Agreement
applicable to this document;
THE PARTIES HEREBY AGREE THAT:
First: AMTROL assumes, from today's date onwards, the control of management
acts of ALFA, as if it were its only and single shareholder, ceasing this
situation if and when ANTONIO MIRANDA withdraws the Shares in accordance with
clause 7 of the Promissory Agreement.
Second: To substitute ALFA's directors Mr. Manuel Miranda and Mr. Joaquim
Von Hafe, who have ceased their commissions on today's date, AMTROL shall
indicated Mr. John Cashman and Mr. Edward J. Cooney as ALFA's directors, to be
appointed by "cooptacao" of the remaining directors or by nomination during a
general meeting of the Company.
Third: The two ceasing members of ALFA have already been indemnified by
ALFA, having AMTROL full knowledge of the amounts of such indemnification, and
having given its approval, given the fact they have renounced their commissions
before the term, in accordance with the documents attached to this document in
the form of an annex.
Fourth: Upon AMTROL's request, ANTONIO MIRANDA, through deliberation taken
in a general meeting of the Company held on today's date, amended ALFA's by-laws
in order to provide the qualified majority of 2/3 for the deliberations of the
board of directors.
Fifth: ANTONIO MIRANDA undertakes not to directly or indirectly interfere
on the Company's management, using his best endeavours to ensure the remaining
directors shall grant AMTROL the effective control of management and that the
former director Manuel Miranda gives AMTROL all support and full information
which may be useful and necessary about and for the Company's activity carried
out until 31st December 1997.
Sixth: In accordance with the spirit of number five of this complementary
document, ANTONIO MIRANDA shall do nothing for:
a) ALFA to dispose of, agree to dispose of, grant or agree to grant any
option in respect of any significant part of its assets, which shall be the
same, in quantity and quality, as the ones existing on 7th May 1997;
b) ALFA to enter into any individual contract or commitment, other than in
the normal course of business, relating to or affecting a significant part of
its business or any materially onerous contract or agreement;
c) ALFA to create, non within the normal acts necessary to the exercise of
its activity, grant, issue or agree to create, grant or issue or allow to be
created or to exist any mortgages, charges, debentures, bonds or any other
securities or redeem or agree to redeem any such securities or give or agree to
give any guarantees or indemnities;
d) ALFA to borrow any money or agrees to do so except in the normal course
of business under normal commercial terms;
e) ALFA to make any capital commitment, other than expenditure on assets
necessary for the ordinary course of business;
f) ALFA to make any change in the nature of its business, or to discontinue
or cease to operate all or any part of its business;
g) ALFA to transfer all or any part of its business or assets to any other
person or entity other than in the ordinary course of business;
h) ALFA to engage or to dismiss any employee or to make any variation to
the terms and conditions of employment of such employees;
i) ALFA to make any change to the accounting procedures or principles by
reference to which its accounts are drawn up;
Seventh: If the Shares cannot be transferred due to a fact not imputable to
ANTONIO MIRANDA, AMTROL undertakes the following:
a) the directors appointed or "cooptdados" under its indication, in
accordance with the number two of this document, shall immediately renounce
their respective commissions, recognising in the letter of renounce they shall
address to ALFA, that nothing is owed to them as a consequence of the exercise
or termination of their commission, both by ALFA or ANTONIO MIRANDA;
b) if the previous does not occur and the directors are dismissed during a
shareholders meeting, that the payment of any compensation they may be entitled
to by virtue of having not completed their commissions are of AMTROL's full and
exclusive responsibility;
c) to be liable to pay ALFA any compensation for any act, even if lawful,
having the result of causing damages to ALFA by means of considerable
depreciation of the Company;
d) to pay ANTONIO MIRANDA an amount equal to the one spent by ALFA in the
payment of the indemnifications referred to in number three of this document;
Eight: For the purposes stated under paragraph c) of the previous number, a
considerable depreciation is deemed to occur whenever the damage subject to a
single claim is for or exceeds the amount of PTE 10,000,000 (ten millions
Portuguese escudos) or if several damages of lower amounts, considered together,
are equal to or higher than the amount of PTE 75,000,000 (seventy five millions
of Portuguese escudos).
Ninth: For the purposes referred to in paragraphs b), c) and d) of number
seven of this document, ANTONIO MIRANDA may retain, for six months after
Completion Date, the amount of USD 3,000,000 (three millions dollars) from the
USD 6,000,000 (six millions dollars) he received under the terms of paragraph a)
of number one of clause 5 of the Promissory Agreement, which he has to return to
AMTROL in accordance with numbers four and five of clause 20 of the Promissory
Agreement, as guarantee of the indemnification for the damages which may be
caused to ALFA by AMTROL during the period counting from today's date until the
date of renounce or dismissal of the directors referred to in paragraph a) of
number six of this document.
Tenth: If such damages are subject to quantification and are equal to or
higher than USD 3,000,000 (three millions dollars), and if he presents a
justified and written claim, one for each damage, within six months counting
from the date of renounce or dismissal, ANTONIO MIRANDA shall keep this amount
as compensation, without prejudice of further indemnity if the claimed damages
within the referred to six months are higher than USD 3,000,000 (three millions
Dollars); if the damages are less than USD 3,000,000 (three millions Dollars)
ANTONIO MIRANDA shall retain the amount equivalent to the caused damage and
shall reimburse AMTROL with the remaining.
Eleventh: The Parties expressly undertake to submit any situation to
arbitration, under the terms of clause 21 of the Promissory Agreement, to solve
any dispute which may result in the application of the numbers 8 and 9 of this
document.
The Partied accept the contents of this document, which forms part of the
Promissory Agreement and are going to sign two counterparts, each of them is an
original.
Porto, 30th June 1997
ANTONIO BRANDAO MIRANDA
AMTROL Inc.