Exhibit 7.1
Dated 1 June 1999
OBOADLER HOLDINGS LIMITED
and
THE ASSOCIATED OCTEL COMPANY LIMITED
SHARE PURCHASE AGREEMENT
relating to the sale and purchase of the whole of the issued share capital of
Oboadler CompanyLimited
LINKLATERS & PAINES
One Silk Street
London EC2Y 8HQ
Tel: (+44) 171 456 2000
(DAB)
Agreement for Purchase of Shares
This Agreement is made on I June 1999
Between:
(1) Oboadler Holdings Limited (Registered No 3760651) incorporated in England
whose registered office is at High Field, Row Dow Lane, Shoreham, Kent
TN15 6XN (the "Vendor"); and
(2) The Associated Octel Company Limited (Registered No344359) incorporated in
England whose registered office is at Suite 2, Fourth Floor, Berkeley
Square House, Berkeley Square, London W1X 6DT (the "Purchaser").
It is agreed as follows:
1 Interpretation
In this Agreement, unless the context otherwise requires, the provisions in
this Clause 1 apply:
1.1 Definitions
"Alcor" means Alcor Chemie AG (a Swiss company registered in the commercial
registry of the Canton Zug);
"Alcor Financing Costs" means all amounts (including, without limitation,
principal, interest, fees and indemnity amounts) expressed to be payable by
either or both of the Company and the Vendor to the Financiers under or in
connection with the Financing Arrangements;
"Alcor Purchase" means the purchase from Gunter Zobel and Elisabeth Zobel
(both of Schneitstrasse 20, 6315 Oberageri) by the Company of all the shares
of Alcor and Alcor Vertriebs pursuant to a sale and purchase agreement
entered into on the date hereof;
"Alcor Shares" means all the shares of Alcor and Alcor Vertriebs purchased
by the Company pursuant to the Alcor Purchase;
"Alcor Subsidiaries" means Alcor and Alcor Vertriebs;
"Alcor Vertriebs" means Alcor Chemie Vertriebs AG (a Swiss company
registered in the commercial registry of the Canton Zug);
"Barclays Security" means the security taken by the Financiers over the
Shares and the Alcor Shares;
"Business Day" means a day on which banks are generally open for business in
London (excluding Saturdays, Sundays and public holidays);
"Company" means Oboadler Company Limited incorporated in England with
registered number 3760777 whose registered office is at High Field, Row Dow
Lane, Shoreham, Kent TN15 6XN;
"Completion" means the completion of the sale and purchase of the Shares
pursuant to Clause 6;
"Completion Date" means the date of Completion;
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"Encumbrance" means any claim, charge, mortgage, security, lien, option,
equity, power of sale or hypothecation or other third party rights,
retention of title, right of pre-emption, right of first refusal or security
interest of any kind;
"Financiers" means Barclays Bank plc and any other Finance Party (as defined
in the Financing Arrangements);
"Financing Arrangements" means the US$90,000,000 facility agreement entered
or to be entered into between the Company and, inter alia, Barclays Bank plc
in order to effect the Alcor Purchase;
"Finance Co" means Oboadler Finance Limited incorporated in England with
registered number 3782993 whose registered office is at High Field, Row Dow
Lane, Shoreham, Kent, TN15 6XN;
"Guarantee" means the guarantee entered or to be entered into by the Vendor
of the Company's obligations under or in connection with the Financing
Arrangements;
"Group" or "Group Companies" means the Company and its subsidiaries and
"Group Company" means any one of them;
"Independent Expert" means a person to whom the provisions of Clause 8.11
apply;
"Initial Consideration" means the cash sum of US$1,850,000 (one million
eight hundred and fifty thousand US dollars) paid as a non-refundable
deposit on account of the Total Consideration;
"Retained Benefits" means the aggregate of:
(i) the cash amounts (or cash equivalent amounts as determined by
agreement between the parties or, in the absence of such agreement, by
an Independent Expert) of any distribution made or declared between the
date hereof and Completion by any Group Company to any Vendor Group
Company (other than a Group Company); and
(ii) in the case of any transaction entered into between the date hereof
and Completion between any Group Company and any Vendor Group Company
(other than a Group Company) otherwise than on arms' length terms, the
cash amounts (or cash equivalent amounts as determined by agreement
between the parties or, in the absence of such agreement, by an
Independent Expert) of the net profit or net benefit received or
receivable pursuant to such transactions by any Vendor Group Company
(other than a Group Company);
"Share Consideration" means the product of the following formula:-
US$1.00 + A + B - C
where:-
A = Transaction Costs unpaid at Completion;
B = Supplemental Consideration payable at Completion; and
C = the Retained Benefits.
"Shares" means the entire voting and non-voting issued share capital of the
Company;
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"Subordinated Loan" means the subordinated loan of US$10,000,000 made or to
be made by the Purchaser (or an associated company thereof) to Finance Co
and by Finance Co to the Company;
"Supplemental Consideration" means the amount payable by the Purchaser to
the Vendor pursuant to Clause 3.2.
"Third Party Sale Price" means the cash proceeds of any disposal pursuant to
Clause 4.3 to the extent received and retained by the Vendor;
"Total Consideration" means the Initial Consideration plus the Share
Consideration;
"Transaction Costs" means all costs, losses and expenses (other than any
costs, losses or expenses (i) incurred by reason of the breach by the Vendor
or any Vendor Group Company of any contractual or legal provision; or (ii)
taken into account in calculating the Retained Benefits) properly incurred
by the Vendor or any member of the Vendor's Group (excluding any Group
Company) in connection with the preparation, negotiation, entry into and
putting into effect of this Agreement and the sale of the Shares
contemplated herein;
"Vendor Group" means the Vendor, the subsidiaries of the Vendor, the holding
companies of the Vendor and any subsidiaries of such holding companies and
"Vendor Group Company" means any one of them; and
"Warranties" means the warranties and representations set out in Schedule 2
and "Warranty" means any one of them;
1.2 Subordinate Legislation
References to a statutory provision include any subordinate legislation made
from time to time under that provision;
1.3 Modification etc. of Statutes
References to a statute or statutory provision include that statute or
provision as from time to time modified or re-enacted or consolidated
whether before or after the date of this Agreement so far as such
modification or re-enactment or consolidation applies or is capable of
applying to any transactions entered into in accordance with this Agreement
prior to Completion and (so far as liability thereunder may exist or can
arise) shall include also any past statutory provision (as from time to time
modified or re-enacted or consolidated) which such provision has directly or
indirectly replaced;
1.4 Companies Act 1985
The words "holding company" and "subsidiary" shall have the same meanings in
this Agreement as their respective definitions in the Companies Act 1985 as
modified by the Companies Act 1989;
1.5 Interpretation Act 1978
The Interpretation Act 1978 shall apply to this Agreement in the same way as
it applies to an enactment;
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1.6 Clauses, Schedules etc.
References to this Agreement include any Schedules to it and this Agreement
as from time to time amended and references to Clauses and Schedules are to
Clauses of and Schedules to this Agreement;
1.7 Information
Any reference to books, records or other information means books, records or
other information in any form including paper, electronically stored data,
magnetic media, film and microfilm; and
1.8 Headings
Headings shall be ignored in construing this Agreement.
1.9 Parties
References to a party to this Agreement include references to the successors
or permitted assigns (immediate or otherwise) of that party.
2 Agreement to Sell the Shares
The Vendor shall sell or procure the sale of and the Purchaser, relying on
the several representations, warranties and undertakings contained in this
Agreement, shall purchase the Shares free from all Encumbrances (other than
the Barclays Security) and together with all rights and advantages now and
hereafter attaching thereto.
3 Consideration
The consideration for the purchase of the Shares shall be the Total
Consideration which shall be payable as provided in this Clause.
3.1 Initial Consideration
In consideration for the Vendor entering into this agreement, the Purchaser
shall pay to the Vendor on the date hereof the Initial Consideration, which
on no account shall be repaid. The Vendor undertakes immediately to apply
the sum of US$1,500,000 (one and a half million US Dollars) in subscribing
for additional share capital of the Company.
3.2 Supplemental Consideration
The Purchaser shall pay to the Vendor on Completion the sum of US$200,000 by
way of Supplemental Consideration.
3.3 Share Consideration
The consideration payable for the Shares on Completion, which shall be
satisfied by the Purchaser as provided in Clauses 3.4 and 6.3, shall be the
Share Consideration.
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3.4 Method of Payment
Payment of the Share Consideration shall be made in cash to the Vendor on
Completion. The Purchaser undertakes to procure that on Completion it will
draw down funds under facilities granted by the Financier to make repayment
in full of all amounts due to the Financier under the Financing Arrangements
and all amounts due by the Company to Finance Co. and by Finance Co. under
the Subordinated Loan. The Vendor undertakes to procure that the Company
repays all amounts due under the Financing Arrangements and by the Company
to Finance Co. and by Finance Co. under the Subordinated Loan on Completion
in each case through a bank account specified by the Financier.
3.5 Further Payments on Account of Consideration
Any part of the Share Consideration that comprises Transaction Costs shall
be paid by the Purchaser to the Vendor in the manner set out in Clause 3.4
by the later of:
3.5.1 10 Business Days following receipt by the Purchaser of an invoice for
any such Transaction Costs (along with such evidence as to the
amounts incurred by the Vendor Group as the Purchaser reasonably
requires); or
3.5.2 if, prior to the date referred to in Clause 3.5.1 above, the
Purchaser disputes the amount of any such Transaction Costs, 10
Business Days following agreement between the parties, or
determination by an Independent Expert, as to the amount of the
relevant Transaction Costs.
4 Condition
4.1 Condition Precedent
Completion of the sale and purchase of the Shares by the Vendor to the
Purchaser pursuant to this Agreement is conditional upon (and accordingly
inter alia beneficial ownership in the Shares will not pass to the Purchaser
until) the Purchaser shall have complied with the advance written
notification requirements contained in the Decision and Order of the Federal
Trade Commission Docket C-3815 issued on 16 June 1998 and all applicable
waiting periods in connection therewith having expired including any
extensions thereto.
4.2 Responsibility for Satisfaction
The Purchaser hereby undertakes to use all reasonable endeavours to ensure
the satisfaction of the condition set out in Clause 4.1 as soon as possible
following the date of this Agreement including, without limitation, making
an appropriate notification and filing the notification with the Federal
Trade Commission within 30 days of this Agreement and supplying information
promptly. The Vendor shall use all reasonable endeavours promptly to co-
operate with and provide all necessary information and assistance
reasonably required by the Purchaser in connection with the foregoing
obligation.
4.3 Non-Satisfaction
If the condition in Clause 4.1 has not been satisfied on or before the date
falling six months after the date hereof or such other date as the parties
may agree:-
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4.3.1 the obligations of the Purchaser to purchase the Shares pursuant to
Clause 2 shall lapse and no party shall have any claim against any
other pursuant to Clause 2;
4.3.2 the Purchaser shall use all reasonable endeavours to procure that:
(i) the Financier shall agree to extend the Financing Arrangements
pending sale of the Shares as contemplated by Sub-clause 4.3.3;
and
(ii) shall not, save as specified in Sub-clause 4.3.3, take any step
to enforce its rights under the Financing Arrangements;
4.3.3 the Vendor will consent to the Financier exercising its rights under
the Barclays Security to sell the Shares to a third party procured by
the Financier or any agent appointed by it;
4.3.4 subject to the Vendor complying with its obligations under this
Agreement in all material respects, the Purchaser will pay to the
Vendor the amount by which the Third Party Sale Price falls short of
the Share Consideration;
4.3.5 if applicable, the Vendor will pay to the Purchaser the amount by
which the Third Party Sale Price exceeds the Share Consideration;
4.3.6 the Purchaser will indemnify and keep indemnified the Vendor and each
member of the Vendor Group and their directors, officers and
employees against all claims, liabilities, losses, costs and expenses
whatsoever and howsoever incurred by any of such persons in
connection with the Vendor's ownership and the proper operation of
the Group Companies provided that such indemnity shall not apply to
fraud or wilful default on the part of such parties;
4.3.7 the following provision shall have effect if and for so long as this
Agreement shall have been assigned by way of security to the
Financier:
(i) in this Sub-clause 4.3.7, "Third Party Sale Price" means the
proceeds of any disposal pursuant to Clause 4.3 to the extent
receivable and received by the Vendor and applied by the
Financier in permanent reduction of the Alcor Financing Costs,
provided that if the Shares are not disposed of by 31 March,
2000 the Third Party Sale Price shall be deemed to be zero;
(ii) the Purchaser will pay to the Vendor an amount equal to the
difference between the Alcor Financing Costs and the Third Party
Sale Price and shall indemnify the Vendor against all other
costs, losses and expenses incurred by the Vendor or any Vendor
Group Company (other than a Group Company) in connection with
the Sale of the Shares referred to in Clause 4.3.3, and
(iii) the provisions of Clauses 8.14 to 8.17 of this Agreement shall
have effect only when the Sub-clause 4.3.7 shall apply.
5 Action Pending Completion
5.1 Vendor's General Obligations
The Vendor shall use all reasonable endeavours to procure that, pending
Completion:
5.1.1 each Group Company will carry on business only in the ordinary
course;
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5.1.2 each Group Company shall use all reasonable endeavours to preserve
its assets and, in particular, will maintain in force all insurance
policies and all other such insurances normally kept in force; and
5.1.3 except as provided in this Agreement, each Group Company shall
operate its business independently of the Purchaser's business. The
Purchaser shall have, by reason of this Agreement, neither the intent
nor the ability to influence directly or indirectly the ongoing
business activities of the Vendor prior to satisfaction of the
condition in Clause 4.1.
5.2 Restrictions on the Vendor
Without prejudice to the generality of Clause 5.1, between the date of this
Agreement and Completion, the Vendor shall use its reasonable endeavours to
procure that each Group Company shall not:
5.2.1 incur or enter into any agreement or commitment not in the ordinary
course of business involving any capital expenditure in excess of
DM5,000,000 in aggregate;
5.2.2 incur any additional borrowings or incur any other indebtedness
otherwise than in the ordinary course of business other than as
required under the Financing Arrangements;
5.2.3 make any loans, grant any credit (save in the ordinary course of
business) or give any guarantee or indemnity (except as required
hereby) to or for the benefit of any person or otherwise voluntarily
assume any liability, whether actual or contingent, in respect of any
obligation of any other person;
5.2.4 allot, issue, redeem or repurchase any share or loan capital (or
option to subscribe for the same) of any Group Company other than as
required under the Financing Arrangements;
5.2.5 acquire or agree to acquire or sell or agree to sell any shares or
other interest in any company, partnership or other venture; or
5.2.6 declare, make or pay any dividend or other distribution to
shareholders other than to any Group Company;
5.3 Restrictions on the Purchaser
The Purchaser acknowledges and agrees that, notwithstanding any provision of
this Agreement, between the date hereof and Completion, it shall not
directly or indirectly:
5.3.1 be entitled to exercise any influence or control over the operations
of the Vendor; or
5.3.2 acquire any stock, share capital, equity or other interest in the
Vendor.
6 Completion
6.1 Date and Place
Subject to Clause 4, Completion shall take place at the registered office of
the Purchaser 5 Business Days following fulfilment or waiver of the
condition set out in Clause 4.1 or at such other place or on such other date
as may be agreed between the Purchaser and the Vendor.
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6.2 Obligations on Completion
On Completion the Vendor shall procure that the obligations specified in
Schedule 1 are fulfilled.
6.3 Payment of Share Consideration
Against compliance with the provision of Clause 6.2, the Purchaser shall
pay, on the Completion Date and in the manner specified in Clause 3.4, to
the Vendor the Share Consideration.
6.4 Right to Terminate
If the provisions of Clause 6.2 are not complied with by the Vendor in all
material respects by or on the date set for Completion in Clause 6.1 or
waived by the Purchaser, the Purchaser shall be entitled (in addition to and
without prejudice to all other rights or remedies available to it including
the right to claim damages) by written notice to the Vendor served on such
date:
6.4.1 to elect to terminate its obligations under Clause 2 of this
Agreement ;or
6.4.2 to effect Completion so far as practicable having regard to the
defaults which have occurred; or
6.4.3 to fix a new date for Completion (not being more than 20 Business
Days after the agreed date for Completion) in which case the foregoing
provisions of this Clause 6.4 shall apply to Completion as so deferred
but provided such deferral may only occur once.
6.5 Consequences of Termination
If the Purchaser elects to terminate its obligations under Clause 2 of this
Agreement pursuant to Clause 6.4.1:
6.5.1 the obligations of the Purchaser to purchase the Shares pursuant to
Clause 2 shall lapse and no party shall have any claim against any
other pursuant to Clause 2;
6.5.2 the Purchaser shall use all reasonable endeavours to procure that:
(i) the Financier shall agree to extend the Financing Arrangements
pending sale of the Shares as contemplated by Sub-clause 6.5.3;
and
(ii) shall not, save as specified in Sub-clause 6.5.3, take any step
to enforce its rights under the Financing Arrangements;
6.5.3 the Vendor will consent to the Financier exercising its rights under
the Barclays Security to sell the Shares to a third party procured by
the Financier or any agent appointed by it;
6.5.4 subject to the Vendor complying with its obligations under this
Agreement in all material respects, the Purchaser will pay to the
Vendor the amount by which the Third Party Sale Price falls short of
the Share Consideration;
6.5.5 if applicable, the Vendor will pay to the Purchaser the amount by
which the Third Party Sale Price exceeds the Share Consideration;
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6.5.6 the Purchaser will indemnify and keep indemnified the Vendor and each
member of the Vendor Group and their directors, officers and
employees against all claims, liabilities, losses, costs and expenses
whatsoever and howsoever incurred by any of such persons in
connection with the Vendor's ownership and the proper operation of
the Group Companies provided that such indemnity shall not apply to
fraud or wilful default on the part of such parties;
6.5.7 the following provision shall have effect if and for so long as this
Agreement shall have been assigned by way of security to the
Financier:
(i) in this Clause, "Third Party Sale Price" means the proceeds of
any disposal pursuant to Clause 6.5 to the extent receivable and
received by the Vendor and applied by the Financier in permanent
reduction of the Alcor Financing Costs, provided that if the
Shares are not disposed of by 31March, 2000 the Third Party Sale
Price shall be deemed to be zero;
(ii) the Purchaser will pay to the Vendor an amount equal to the
difference between the Alcor Financing Costs and the Third Party
Sale Price and shall indemnify the Vendor against all other
costs, losses and expenses incurred by the Vendor or any Vendor
Group Company (other than a Group Company) in connection with the
Sale of the Shares referred to in Clause 6.5.2, and
(iii)the provisions of Clauses 8.14 to 8. 17 of this Agreement shall
have effect only when sub-clause 6.5.7 shall apply.
7 Warranties
7.1 Incorporation of Schedule 3
7.1.1 The Vendor warrants and represents to the Purchaser and its
successors in title in the terms set out in Schedule 2 subject only
to:
(i) any matter expressly provided for under the terms of this
Agreement; and
(ii) any matter or thing hereafter done or omitted to be done pursuant
to this Agreement or otherwise at the request in writing or with
the approval in writing of the Purchaser.
7.1.2 The Vendor acknowledges that the Purchaser has entered into this
Agreement in reliance upon, amongst other things, the Warranties. Save
as expressly otherwise provided, the Warranties shall be separate and
independent and shall not be limited by reference to any other
paragraph of the said Schedule or by anything in this Agreement.
Breach of any of the Warranties will not adversely affect any of the
Purchaser's obligations under Clause 4.3.
7.2 Updating to Completion
The Vendor further warrants to the Purchaser and its successors in title
that:
7.2.1 subject to Clause 7.1, the Warranties will be fulfilled down to and
will be true and accurate in all respects and not misleading in any
respect at Completion as if they had been given again at Completion;
and
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7.2.2 if after the signing of this Agreement and before Completion any
event shall occur or matter arises which results or may result in any
of the Warranties being unfulfilled, untrue, misleading or incorrect
in any respect at Completion the Vendor shall immediately notify the
Purchaser in writing fully thereof prior to Completion and the Vendor
(at its own cost) shall make any investigation concerning the event
or matter which the Purchaser may reasonably require.
7.3 Limitation of Liability
The provisions of Schedule 3 shall apply.
7.4 Effect of Completion
The Warranties and all other provisions of this Agreement insofar as the
same shall not have been performed at Completion shall not be extinguished
or affected by Completion, or by any other event or matter whatsoever
(including, without limitation, any satisfaction of the condition contained
in Clause 4.1), except by a specific and duly authorised written waiver or
release by the Purchaser.
7.5 Right of Termination
If prior to Completion it shall be found that any of the Warranties was,
when given, or will be or would be, at Completion (as if they had been
given again at Completion) not complied with or otherwise untrue or
misleading (in any respect which is material in the context of the
acquisition of the Shares contemplated herein) the Purchaser shall be
entitled (in addition to and without prejudice to all other rights or
remedies available to it and its successors in title including the right to
claim damages) by notice in writing to the Vendor to terminate its
obligations under Clause 2 of this Agreement but failure to exercise this
right shall not constitute a waiver of any other rights of the Purchaser or
its successors in title arising out of any breach of Warranty.
7.6 Consequences of Termination
If the Purchaser elects to terminate its obligations under Clause 2 of this
Agreement pursuant to Clause 7.5:
7.6.1 the obligations of the Purchaser to purchase the Shares pursuant to
Clause 2 shall lapse and no party shall have any claim against any
other pursuant to Clause 2;
7.6.2 the Purchaser shall use all reasonable endeavours to procure that:
(i) the Financier shall agree to extend the Financing Arrangements
pending sale of the Shares as contemplated by Sub-clause 7.6.3;
and
(ii) shall not, save as specified in Sub-clause 7.6.3, take any step
to enforce its rights under the Financing Arrangements;
7.6.3 the Vendor will consent to the Financier exercising its rights under
the Barclays Security to sell the Shares to a third party procured by
the Financier or any agent appointed by it;
7.6.4 subject to the Vendor complying with its obligations under this
Agreement in all material respects, the Purchaser will pay to the
Vendor the amount by which the Third Party Sale Price falls short of
the Share Consideration;
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7.6.5 if applicable, the Vendor will pay to the Purchaser the amount by
which the Third Party Sale Price exceeds the Share Consideration;
7.6.6 the Purchaser will indemnify and keep indemnified the Vendor and each
member of the Vendor Group and their directors, officers and
employees against all claims, liabilities, losses, costs and expenses
whatsoever and howsoever incurred by any of such persons in
connection with the Vendor's ownership and the proper operation of
the Group Companies provided that such indemnity shall not apply to
fraud or wilful default on the part of such parties;
7.6.7 the following provision shall have effect if and for so long as this
Agreement shall have been assigned by way of security to the
Financier:
(i) in this Clause, "Third Party Sale Price" means the proceeds of
any disposal pursuant to Clause 7.6 to the extent receivable and
received by the Vendor and applied by the Financier in permanent
reduction of the Alcor Financing Costs, provided that if the
Shares are not disposed of by 31 March,the Purchaser will pay to
the Vendor an amount equal to the difference between the Alcor
Financing Costs and the Third Party Sale Price and shall
indemnify the Vendor against all other costs, losses and
expenses incurred by the Vendor or any Vendor Group Company
(other than a Group Company) in connection with the Sale of the
Shares referred to in Clause 7.6.1, and
(ii) the provisions of Clauses 8.14 to 8.17 of this Agreement shall
have effect only when sub-clause 7.6.7 shall apply.
7.7 Information from Group Companies
The Vendor agrees with the Purchaser (for itself and as trustee for each
Group Company and their respective officers, employees and agents) to
assign to the Purchaser any rights, remedies or claims which they may have
in respect of any misrepresentation, inaccuracy or omission in or from any
information or advice supplied or given by any Group Company or their
respective officers, employees, former shareholders or agents in connection
with (i) the Alcor Purchase or; (ii) (save in respect of any fraud or
wilful default on the part of such person) assisting the Vendor in the
making of any representation and the giving of the Warranties.
8 Other Provisions
8.1 Announcements
No announcement or circular in connection with the existence or the subject
matter of this Agreement shall be made or issued by or on behalf of the
Vendor or the Purchaser without the prior written approval of the other
party. This shall not affect any announcement or circular required by law
or any regulatory body or the rules of any recognised stock exchange but
the party with an obligation to make an announcement or issue a circular
shall consult with the other party/parties insofar as is reasonably
practicable before complying with such an obligation.
8.2 Successors and Assigns
8.2.1 Subject to Clause 8.2.2 and Clause 8.2.3, this Agreement is personal
to the parties to it and accordingly, neither the Purchaser nor the
Vendor may, without the prior written
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consent of the other, assign the benefit of all or any of the other's
obligations under this Agreement, nor any benefit arising under or
out of this Agreement.
8.2.2 Except as otherwise expressly provided in this Agreement, the
Purchaser or the Vendor may, without the consent of the other, assign
to a connected company the benefit of all or any of the other party's
obligations under this Agreement provided however that such
assignment shall not be absolute but shall be expressed to have
effect only for so long as the assignee remains a connected company.
For the purposes of this sub-clause a "connected company" is a
company which is a subsidiary of the party concerned or which is a
holding company of such party or a subsidiary of such holding
company.
8.2.3 The Vendor may, without the consent of the Purchaser, assign or
procure the assignment to all or any of the Financiers all or any of
the Vendor's rights and benefits under this Agreement (in which case
such Financier(s) shall be entitled to exercise all rights or
discretions vested in the Vendor under this Agreement.)
8.3 Variation
No variation of this Agreement shall be effective unless in writing and
signed by or on behalf of each of the parties to this Agreement.
8.4 Time of the Essence
Time shall be of the essence of this Agreement both as regards any dates
and periods mentioned and as regards any dates and periods which may be
substituted for them in accordance with this Agreement or by agreement in
writing between the parties.
8.5 Further Assurance
At any time after the date of this Agreement the Vendor shall and shall use
its best endeavours to procure that any necessary third party shall execute
such documents and do such acts and things as the Purchaser may reasonably
require for the purpose of giving to the Purchaser the full benefit of all
the provisions of this Agreement.
8.6 No Double Recovery
The Vendor agrees that it shall not be entitled, whether pursuant to this
Agreement or any other agreement, to the recovery of any Transaction Costs
or any amounts due under Clauses 3.3, 4.3, 6.5 or 7.6 more than once.
8.7 Interest
If the Vendor or the Purchaser default in the payment when due of any sum
payable under this Agreement (howsoever determined) the liability of the
Vendor or the Purchaser (as the case may be) shall be increased to include
interest on such sum from the date when such payment is due until the date
of actual payment (as well after as before judgement) at a rate per annum
of 2per cent above the base rate from time to time of Barclays Bank PLC.
Such interest shall accrue from day to day and shall be compounded with
monthly rests.
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8.8 Notices
8.8.1 Any notice, claim or demand in connection with this Agreement shall
be in writing in English (a "Notice") and shall be sufficiently
given or served if delivered or sent:
In the case of the Vendor to:
High Field
Row Dow Lane
Shoreham
Kent TN15 6XN
Attention: Graham North
With a copy to Barclays Bank plc
5 The North Colonade
Canary Wharf
London E14 4BB
Fax: 0171 773 4894
Attention: Karl Nolson
In the case of the Purchaser to The Associated Octel Company
Limited:
Suite 2
Fourth Floor
Berkeley Square House
Berkeley Square
London
W1X 6DT
Fax: 0171 647 2800
Attention: The Company Secretary
8.8.2 Any Notice may be delivered by hand or sent by fax or prepaid post
(first class in the case of service in the United Kingdom and
airmail in the case of international service). Without prejudice to
the foregoing, any Notice shall conclusively be deemed to have been
received on the next working day in the place to which it is sent,
if sent by messenger, telegram, telex or fax, or 60 hours from the
time of posting, if sent by post, or at the time of delivery, if
delivered by hand.
8.9 Invalidity
If any provision in this Agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of law,
such provision or part shall to that extent be deemed not to form part of
this Agreement but the legality, validity or enforceability of the
remainder of this Agreement shall not be affected.
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8.10 Counterparts
This Agreement may be entered into in any number of counterparts, all of
which taken together shall constitute one and the same instrument. Any
party may enter into this Agreement by executing any such counterpart.
8.11 Expert Determination
Where this Agreement provides for, or envisages, the appointment of an
Independent Expert, the following shall apply:
8.11.1 the Independent Expert shall be an expert agreed upon by the
parties or, failing agreement within one month of either party
initiating (or attempting to initiate) discussions on the identity
of such expert, the expert shall be selected, on the application of
either party, by the President for the time being of the Institute
of Chartered Accountants in England and Wales;
8.11.2 the Independent Expert shall be deemed to act as expert and not as
arbitrator in any determination made by it hereunder;
8.11.3 in the absence of negligence, manifest error or bad faith, the
Independent Expert's determination shall be conclusive and binding;
and each party shall bear its own costs and the reasonable costs of
the Independent Expert shall be borne equally between the parties.
8.12 Governing Law and Submission to Jurisdiction
8.12.1 This Agreement shall be governed by and construed in accordance
with English law.
8.12.2 Both parties irrevocably agree that the courts of England are to
have exclusive jurisdiction to settle any dispute which may arise
out of or in connection with this Agreement. Both parties
irrevocably submit to the jurisdiction of such courts and waive any
objection to proceedings in any such court on the ground of venue
or on the ground that proceedings have been brought in an
inconvenient forum. This Clause 8.12.2 is for the benefit of the
Purchaser and shall not limit its right to take proceedings in any
other court of competent jurisdiction.
8.12.3 Nothing in this Agreement shall affect the right to serve process
in any other manner permitted by law or the right to bring
proceedings in any other jurisdiction for the purposes of the
enforcement or execution of any judgement or other settlement in
any other courts.
8.13 Entire Agreement
This Agreement (together with the documents referred to herein) constitutes
the entire agreement and understanding between the parties hereto with
respect to the matters contemplated by this Agreement and supersedes any
previous agreement between the parties hereto in relation to such matters.
Each party hereto hereby acknowledges that in entering into this Agreement
it has not relied on any representation, warranty, agreement, statement or
undertaking not set out in this Agreement or such other documents referred
to herein and that (in the absence of fraud) it will not have any right or
remedy arising out of any such representation, warranty, agreement,
statement or undertaking.
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8.14 Set-off
All sums payable under this Agreement shall be paid in full without set-
off or counter-claim and free and clear of and without deduction of or
withholding for or on account of any present or future taxes, duties or
other charges except as required by law. If any such payment shall be
subject to any such tax or if any party to this Agreement shall be
required by law to make any such deduction or withholding, such party will
pay such tax, will ensure that such payment, deduction or withholding will
not exceed the minimum legal liability therefor and will pay to the other
party such additional amounts as will result in that other party receiving
a net amount equal to the full amount which it would have received had no
such payment, deduction or withholding been required.
8.15 Nature of Purchaser's Obligation
The Purchaser acknowledges and agrees that its obligation to make any
payment to the Vendor under this Agreement is a primary obligation and
shall:
(a) be an absolute, unconditional and irrevocable obligation, independent
of any of its other obligations whatsoever including, without
limitation, any obligations it may have to the Vendor or any other
person and independent of the Vendor's obligations to it (whether
under this Agreement or otherwise);
(b) not be discharged, impaired or otherwise affected or limited in any
way whatsoever by any act, omission, matter, fact, circumstances or
thing, whether or not known to the Purchaser, the Vendor or any other
person, including, without limitation;
(i) any variation, amendment, supplement, abrogation, invalidity or
unconstitutionally of any document or the failure of the Vendor
to fulfil any of its obligations thereunder;
(ii) the winding-up or dissolution of the Vendor or any moratorium in
relation to, or rescheduling of, its indebtedness or any other
composition with creditors, or any change in the status,
function, control or ownership of the Vendor;
(iii) any defect in the constitution or incorporation of, or any legal
limitation, disability, incapacity or other circumstances
relating to, the Vendor or any other relevant person;
(iv) any part of the Alcor Financing Costs being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
(v) any time, concession, waiver, consent or other indulgence being
granted or agreed to be granted to the Vendor or any other
person in respect of any part of the Alcor Financing Costs;
(vi) the taking, variation, compromise, renewal or release of or
refusal or neglect to perfect or enforce any rights, remedies or
securities against the Vendor or any other person;
(vii) any time, concession, waiver, consent or other indulgence being
granted or agreed to be granted to the Vendor or any other
person in respect of any part of the Alcor Financing Costs;
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(viii) the taking, variation, compromise, renewal or release of or
refusal or neglect to perfect or enforce any rights, remedies
or securities against the Vendor or any other person;
(ix) any other act, event, matter, limitation or omission which
might otherwise operate to discharge, impair or affect any part
of the Alcor Financing Costs or any of the obligations of the
Purchaser under this Agreement or any rights, powers or
remedies conferred on the Vendor by this Agreement or by law,
to the intent that the Purchaser's obligations under this Agreement
shall be and remain in full force and effect and this Agreement be
construed accordingly as if there were no such acts, omissions,
matters, facts, circumstances or things as contemplated by this Clause
8.15;
(c) continue until such date as the Alcor Financing Costs have been
permanently paid and discharged in full, notwithstanding the fact that
the amount of Alcor Financing Costs may at any time be zero and
notwithstanding any failure by the Vendor to reduce or otherwise
mitigate the extent of Alcor Financing Costs at any time.
8.16 Where any discharge (whether in respect of the Alcor Financing Costs or any
security for those obligations or otherwise) is made in whole or in part or
any arrangement is made on the faith of any payment, security or other
disposition which is avoided or must be restored on insolvency, liquidation
or otherwise without limitation, the liability of the Purchaser under this
Agreement shall continue as if the discharge or arrangement had not
occurred (but only to the extent that such payment, security or other
disposition is avoided or restored).
8.17 The Purchaser indemnifies the Vendor on demand against any loss or
liability suffered by it if any obligation of the Purchaser under this
Agreement is or becomes unenforceable, invalid or illegal.
AS WITNESS this Agreement has been signed by or on behalf of the parties
hereto the day and year first before written.
SIGNED by
on behalf of Oboadler Holdings
LIMITED in the presence of:
SIGNED by
on behalf of THE ASSOCIATED
OCTEL COMPANY LIMITED in
the presence of:
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Schedule 1
Completion Obligations
1 General
On Completion the Vendor shall deliver or make available to the Purchaser:
1.1 transfers of the Shares duly executed by the registered holder(s) in favour
of the Purchaser or as it may direct accompanied by the relative share
certificate(s) (or an express indemnity in a form satisfactory to the
Purchaser in the case of any certificate found to be missing);
1.2 the written resignations of each of the directors and secretaries of the
Company from his office as a director or secretary to take effect on the
date of Completion with acknowledgements signed by each of them in a form
satisfactory to the Purchaser and executed as a deed to the effect that he
has no claim against any Group Company for compensation for loss of office
(whether contractual, statutory or otherwise), unfair dismissal, redundancy
or otherwise together, if relevant, with all credit cards (if any) in the
name of each Group Company issued to any of the persons so resigning;
1.3 the written resignations of the auditors of the Company to take effect on
the date of Completion, with acknowledgements signed by each of them in a
form satisfactory to the Purchaser to the effect that they have no claim
against the Company;
1.4 (for the Purchaser itself and as agent for the Company) the certificates of
incorporation, corporate seals (if any), statutory and other books of each
Group Company (duly written up-to-date) and the share certificates in
respect of each of the Alcor Subsidiaries unless held by the Financiers;
1.5 such financial and accounting books and records of each Group Company as
are in the possession of each Group Company;
1.6 (if the Purchaser so requires) irrevocable powers of attorney (in such form
as the Purchaser may reasonably require) executed by the Vendor in favour
of the Purchaser to enable the Purchaser (pending registration of the
relevant transfer) to exercise all voting and other rights attaching to the
Shares and to appoint proxies for this purpose;
1.7 such bank statements of all bank accounts of all Group Companies as at the
date not more than three Business Days prior to Completion as are in the
possession of such Group Companies.
2 Board Resolutions Of The Group Companies
On Completion the Vendor shall procure the passing of Board Resolutions of
the Company inter alia:
2.1 (if so required by the Purchaser) revoking all existing authorities to
bankers in respect of the operation of its bank accounts and giving
authority in favour of such persons as the Purchaser may nominate to
operate such accounts;
2.2 accepting the resignations referred to in paragraph 1.2 of this Schedule
and appointing such persons (within the maximum number permitted by the
constitution of the relevant company) as the Purchaser may nominate as
directors and secretary;
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2.3 approving the registration of the share transfers referred to in paragraph
1.1 of this Schedule;
2.4 accepting the resignations referred to in paragraph 1.3 of this Schedule
and appointing PricewaterhouseCoopers as auditors of each Group Company;
2.5 changing its registered office in accordance with any instructions given by
the Purchaser not later than 3 Business Days prior to the Completion Date;
and
2.6 changing its accounting reference date in accordance with any instructions
given by the Purchaser,
and shall hand to the Purchaser duly certified copies of such Resolutions.
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Schedule 2
Warranties given by the Vendor under Clause 7
1 The Vendor is a company duly incorporated and validly existing under its
country of incorporation.
2 The Vendor has the legal right and full power and authority to enter into
and perform this Agreement which when executed will constitute valid and
binding obligations on the Vendor, in accordance with its terms.
3 The execution and delivery of, and the performance by the Vendor of its
obligations under, this Agreement will not:
3.1 result in a breach of any provision of the memorandum or articles of
association of the Vendor; or
3.2 result in a breach of or give any third party a right to terminate or
modify, or result in the creation of any Encumbrance other than under the
Financing Arrangements under any agreement, licence or other instrument or
result in a breach of any order, judgement or decree of any Court,
governmental agency or regulatory body to which the Vendor is a party or by
which the Vendor or any of its assets is bound.
4 The Vendor will, at Completion, be entitled to sell and transfer to the
Purchaser the full legal and beneficial ownership of the Shares on the
terms of this Agreement without the consent of any third party other than
under the Financing Arrangements.
5 To the best of the knowledge, information and belief of the Vendor, having
made due and careful enquiries, the Shares comprise the whole of the
allotted and issued share capital of the Company, have been properly and
validly allotted and issued and are each fully paid.
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Schedule 3
Limitation of Liability under Clause 7.3
Notwithstanding the provisions of Clauses 7.1 and 7.2, the Vendor shall not
be liable for breach of Warranty under this Agreement:
1 Time Limits: in respect of any claim unless notice of such claim is given
in writing by the Purchaser to the Vendor setting out such details as are
available of the specific matter in respect of which the claim is made,
within 12months following Completion;
2 Minimum and Maximum Claims: in respect of any claim arising from any single
circumstance if the amount of the claim does not exceed US$10,000 (save
that claims relating to a series of connected matters shall be aggregated
for this purpose) and in respect of all claims to the extent that the
amount claimed exceeds the Total Consideration.
Fraud etc: None of the limitations above shall apply to any claim which
arises or is increased, or to the extent to which it arises or is
increased, as the consequence of, or which is delayed as a result of,
fraud, wilful misconduct or wilful concealment by the Vendor or any officer
or employee of the Vendor.
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