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EXHIBIT 2.1
SHARE AND DEBT PURCHASE AND SALE AGREEMENT
This Share and Debt Purchase and Sale Agreement (together with the Exhibits and
Schedules hereto, this "Agreement") is made on December 15, 1998, in Paris,
France.
BETWEEN
1. Groupe Valfond, a societe anonyme organized and existing under the laws of
France, whose registered office is located at 100/102 rue de Villiers, 92309
Levallois Perret, France, registered with the Commercial Registry of Nanterre
under the number B 542 104 849 (hereinafter "Valfond" or the "Seller"),
represented by Mr. Herve Guillaume, its President, duly authorized;
AND
2. Oxford Automotive France SAS, a French societe par actions simplifiee, in the
process of being formed under the laws of France, having its registered office
at 2, place Boieldieu, 75002 Paris France (hereinafter "OAF" or the
"Purchaser"), represented by Mr. Hubert Mauroy, its President, duly authorized;
(The Seller and the Purchaser are referred to hereinafter individually as a
"Party" and collectively as the "Parties".)
WITNESSETH
WHEREAS:
A. 251,133 shares (the "Shares") representing 100% of the share capital of
Cofimeta, a societe anonyme organized and existing under the laws of
France with a nominal share capital of FF 25,113,300 divided into 251,133
shares of a nominal value of FF 100 each having its registered office
located at 68 rue de Villiers, 92309 Levallois Perret, France, registered
with the Commercial Registry of Nanterre under the number B 334 924 677
(hereinafter "Cofimeta"), are owned as follows at the date hereof:
(i) 199,552 shares, representing 79.46% of the share capital, are owned
by Valfond; and
(ii) 32,811 shares, representing 13.06% of the share capital, are owned
by Arbel Industrie, a societe anonyme organized and existing under
the laws of France, whose registered office is located at 68 rue de
Villiers, 92300 Levallois-Perret, France (hereinafter "Arbel"); and
(iii) 18,770 shares, representing 7.8% of the share capital, are owned by
PSB Participations, a societe anonyme organized and existing under
the laws of France, whose registered office is located at 68 rue de
Villiers, 92300 Levallois-Perret, France (hereinafter "PSB").
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At the Closing Valfond will transfer or cause to be transferred to the
Purchaser 251,133 shares in Cofimeta representing 100% of the Shares.
B. Cofimeta owns directly or indirectly 100% of the shares of the capital
stock of each of the following companies, as set forth below and as more
fully described in EXHIBIT I hereto (with the exception of the 5 shares
also identified on EXHIBIT I (the "Delayed Shares")):
(i) 150,000 shares in Aubry S.A., a French societe anonyme with a
nominal share capital of FF 15,000,000 divided into 150,000 shares
of FF 100 each, having its registered office at Avenue Jean Jaures,
18400 Saint Florentin sur Cher, and registered with the Registry of
Commerce and Companies of Bourges under the number B 572 175 701
(hereinafter "Aubry"); and
(ii) 17,999 shares in Ecrim S.A., a French societe anonyme with a
nominal share capital of FF 3,600,000 divided into 18,000 shares of
FF 200 each, having its registered office at Chemin de Chambrais,
La Vespiere, 14290 Orbec, and registered with the Registry of
Commerce and Companies of Lisieux under the number B 300 759 412
(hereinafter "Ecrim"); and
(iii) 438,951 shares in Somenor S.A., a French societe anonyme with a
nominal share capital of FF 43,895,200 divided into 438,952 shares
of FF 100 each, having its registered office at 194 Bld Faidherbe,
59500 Douai, and registered with the Registry of Commerce and
Companies of Douai under the number B 337 853 337 (hereinafter
"Somenor"); and
(iv) 10,252 shares in Socori Technologies S.A., a French societe anonyme
with a nominal share capital of FF 1,025,500 divided into 10,255
shares of FF 100 each, having its registered office at 515, avenue
Roland Garros, 78530 Buc, and registered with the Registry of
Commerce and Companies of Versailles under the number B 340 086 339
(hereinafter "Socori Technologies").
(Cofimeta and the above mentioned companies are referred to
hereinafter individually as a "Company" and collectively as the
"Companies".)
C. By judgment dated January 29, 1997, the Commercial Court of Douai
opened a bankruptcy restructuring procedure ("redressement judiciaire")
against the Companies.
On April 25 and 28, 1997 Valfond filed with the Commercial Court of Douai
a restructuring plan to continue the activity ("plan de redressement par
voie de continuation") of the Companies (hereafter referred to as the
"Plans") that were accepted by the Commercial Court of Douai by judgments
rendered on June 26, 1997.
The Plans and the judgments are attached in EXHIBIT II to the Agreement.
D. Cofimeta has a FF 50,000,000 debt (the "Cofimeta Debt") to Valfond
corresponding to a shareholder's loan granted by Valfond pursuant to the
Plans.
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E. As of September 30, 1998, Arbel has an aggregate FF 43,210,300 debt plus
any incremental debts owing by Arbel to any of the Companies (the "Arbel
Debt") to Cofimeta, corresponding to the following obligations:
- FF 35,000,000 corresponding to a loan granted by Cofimeta to Arbel; and
- FF 8,210,300 corresponding to an intercompany operation with Arbel.
F. Within the scope of the Plans, Valfond purchased from third parties for a
price equal to FF 58,553,456 trade debts of Cofimeta the nominal value of
which is equal to FF 128,470,271 as further described in Section 4.12
hereto.
G. Since December 29, 1997 the Seller holds 199,548 shares in Cofimeta
representing approximately 79.46 % of its share capital.
Prior to such date, the Seller held no shares in Cofimeta nor any other
securities whatsoever in any of the Companies, nor did it take any part in
the management of the Companies. The share capital of Cofimeta, which
amounted to FF 5,909,000 divided into 59,090 shares of FF 100 each, was
then divided as follows:
Arbel 32,812 shares
PSB 18,770 shares
Sollac 7,501 shares
Individuals 7 shares
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TOTAL 59,090 SHARES
H. The Seller desires to sell to the Purchaser and the Purchaser desires to
purchase from the Seller the Shares and purchase or caused to be purchased
the Trade Debts (as defined in Section 5.23) in accordance with the terms
and conditions set forth herein.
NOW, THEREFORE, the Parties hereto agree as follows:
ARTICLE 0
DEFINITIONS
In addition to such terms as are defined elsewhere in this Agreement (including
in the Exhibits and Schedules hereto), in this Agreement :
_ "1997 Financial Statements": has the meaning assigned to such term in
Section 4.5 hereof;
_ "1998 Debts": has the meaning assigned to such term in Section 5.23
hereof;
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_ "Affiliate": when used with reference to a specified Person, means any
Person that directly or indirectly through one or more intermediaries
controls, is controlled by or is under common control with the specified
Person. For such purposes, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise;
_ "Arbel Debt" has the meaning assigned to such term in the recitals
hereof;
_ "Business Day": means any day except Saturday, Sunday and any day which
is in Paris or New York a legal holiday or a day on which banking
institutions are authorized or required by law or other government
action to close;
_ "Cofimeta Debt" has the meaning assigned to such term in the recitals
hereof;
_ "Company" and "Companies" have the meaning assigned to such terms in the
recitals hereof;
_ "Consent": means any consent, waiver, authorization or approval of or
notice to any governmental or regulatory authority, or of any other
person, firm or corporation, including the prior consultation with or
the provision of information to any work council or employee related
bodies, or any declaration to or filing or registration with any such
governmental or regulatory authority;
_ "Financial Statements": has the meaning assigned to such term in Section
5.5 hereof;
_ "Judgment": means any judgments, orders, rulings or awards of any court,
arbitrator or other judicial authority or any governmental,
administrative or regulatory authority;
_ "June 30, 1998 Financial Statements": has the meaning assigned to such
term in Section 5.5 hereof;
_ "Laws": means any applicable laws, rules or regulations of any
governmental, administrative or regulatory authority ;
_ "Liens": means any and all liens, mortgages, charges, security
interests, preemptive rights, burdens, encumbrances or other limitations
of any nature whatsoever;
_ "Material Adverse Effect" : means any loss, liability, claim, demand,
penalty, cost, expense or tax against or in respect of the assets,
properties, business, operations, prospects or financial condition of
one or more of the Companies which individually or in the aggregate is
in excess of FF 1,000,000;
_ "Person" means a natural person, company, partnership, trust or
unincorporated organization, or a government or any agency or political
subdivision thereof;
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_ "PIBOR": means the average Paris Interbank Offered Rate published by the
French
Association of Banks and displayed on the Telerate system at 11 a.m. on
the Business Day next preceding the Closing Date and each anniversary
date thereof with respect to 1-month French Franc deposits;
_ "Purchased But Not Funded Debts": has the meaning assigned to such term
in Section 5.23 hereof;
_ "Remaining Debts ": has the meaning assigned to such term in Section
5.23 hereof;
_ "Restricted Business": means metal stamping, welding and assembling of
stamped automotive parts relative to body and chassis for original
equipment manufacturers or suppliers to original equipment
manufacturers;
_ "Shares" has the meaning assigned to such term in the recitals hereof;
_ "Taxes": has the meaning assigned to such term in Section 5.7 hereof;
_ "Trade Debts" has the meaning assigned to such term in Section 5.23
hereof.
ARTICLE I
SALE AND PURCHASE
1.1 PURCHASE AND SALE OF THE SHARES, THE TRADE DEBTS, THE 1998 DEBTS, THE
PURCHASED BUT NOT FUNDED DEBTS AND THE REMAINING DEBTS ACQUIRED BY THE SELLER IN
ACCORDANCE WITH SECTION 4.12.
Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing (used in this Agreement as defined in Section
1.3(a) below), the Seller shall sell to the Purchaser and the Purchaser
shall purchase from the Seller the Shares and shall purchase or caused
to be purchased from the Seller the Trade Debts, the 1998 Debts, the
Purchased But Not Funded Debts and the Remaining Debts acquired pursuant
to Section 4.12.
The Parties undertake hereby to cooperate in good faith with a view to
performing the transactions contemplated in this Agreement in accordance
with their respective rights and obligations as defined herein and
applicable Laws.
1.2 PURCHASE PRICE.
1.2.1. Purchase Price for the Shares
(a) The aggregate consideration for the Shares shall be
equal to one hundred and seventy million French Francs
(FF 170,000,000) (the "Shares Purchase Price").
The unpaid principal of the Shares Purchase Price shall
bear interest at an annual rate equal to three percent
(3%) payable in arrears by the Purchaser to the Seller
at the anniversaries of the Closing Date.
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(b) The Shares Purchase Price shall be paid by the Purchaser
to the Seller in four installments as follows, in
accordance with and subject to the terms and conditions
of this Agreement:
(i) eighty million French Francs (FF 80,000,000) at
Closing (the "Shares Closing Payment");
(ii) twenty-seven million French Francs (FF
27,000,000) increased by an amount of two
million seven hundred thousand French Francs (FF
2,700,000) for the accrued interest on the first
anniversary of the Closing Date (used in this
Agreement as defined in Section 1.3(a) below)
(the "First Deferred Payment");
(iii) twenty-seven million French Francs (FF
27,000,000) increased by an amount of one
million eight hundred ninety thousand French
Francs (FF 1,890,000) for the accrued interest
on the second anniversary of the Closing Date
(the "Second Deferred Payment"); and
(iv) thirty-six million French Francs (FF 36,000,000)
increased by an amount of one million eighty
thousand French Francs (FF 1,080,000) for the
accrued interest on the third anniversary of the
Closing Date (the "Third Deferred Payment").
(c) In guarantee of the payment of the First Deferred
Payment, the Second Deferred Payment and the Third
Deferred Payment, the Purchaser shall deliver, at the
Closing, a guarantee from Oxford Automotive Inc., the
text of which will be the same as the text attached in
EXHIBIT III to this Agreement and a legal opinion from
the lawfirm Dykema Gossett which shall be substantially
the same as the model also attached as EXHIBIT III
hereto.
(d) The Purchaser shall also deliver, at the Closing, three
promissory notes, the texts of which will be the same as
the texts attached in EXHIBIT IV to this Agreement.
1.2.2. Purchase Price for the Trade Debts
The aggregate consideration for the Trade Debts (the "Trade
Debts Purchase Price") shall be equal to fifty eight million
five hundred fifty-three thousand four hundred fifty-six French
Francs (FF 58,553,456).
The unpaid principal of the Trade Debts Purchase Price shall
bear interest at an annual rate equal to two percent (2%)
payable in arrears by the Purchaser to Valfond at the
anniversaries of the Closing Date. The Purchaser shall deliver
to the Seller at Closing 3 promissory notes in the form of
EXHIBIT V for the unpaid principal of the Trade Debts.
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The Trade Debts Purchase Price and interest accrued
thereon which shall be paid by the Purchaser to the
Seller in four installments as follows, in
accordance with and subject to the terms and
conditions of this Agreement:
(a) eighteen million five hundred fifty
three thousand four hundred fifty-six
French Francs (FF 18,553,456) at Closing
(the "Trade Debts Closing Payment");
(b) thirteen million French Francs (FF
13,000,000) increased by an amount of
eight hundred thousand French Francs (FF
800,000) for the accrued interest on the
first anniversary of the Closing Date;
(c) thirteen million French Francs (FF
13,000,000) increased by an amount of
five hundred forty thousand French
Francs (FF 540,000) for the accrued
interest on the second anniversary of
the Closing Date;
(d) fourteen million French Francs (FF
14,000,000) increased by an amount of
two hundred eighty thousand French
Francs (FF 280,000) for the accrued
interest on the third anniversary of the
Closing Date.
The Purchaser irrevocably undertakes hereby to
notify to the Companies the sale of the Trade Debts
in accordance with the terms of Article 1690 of the
Civil Code to the extent required by French law.
1.2.3. Purchase Price for the 1998 Debts, the
Purchased But Not Funded Debts and the Remaining
Debts the Seller acquired pursuant to Section 4.12
hereof
The aggregate consideration for the 1998 Debts (the
"1998 Debts Purchase Price") shall be equal to
thirty-nine million forty eight thousand French
Francs (FF 39,048,000).
The aggregate consideration for the Purchased But
Not Funded Debts (the "Purchased But Not Funded
Debts Purchase Price") and the aggregate
consideration for the Remaining Debts acquired by
the Seller pursuant to Section 4.12 (the "Purchased
Remaining Debts Purchase Price") shall be
calculated in accordance with the formula set forth
on EXHIBIT A hereto.
The 1998 Debts Purchase Price, the Purchased But
Not Funded Debts Purchase Price and the Purchased
Remaining Debts Purchase Price shall be paid by the
Purchaser to the Seller at Closing.
1.3 CLOSING.
(a) Provided that all of the respective conditions of the parties
set forth in Articles II and III have been satisfied or waived,
the consummation of the sale and purchase of the Shares, the
Trade Debts, the 1998 Debts, the Purchased but Not Funded Debts
and the Remaining Debts acquired by the Seller in accordance
with Section 4.12 hereof (the "Closing") shall be held at the
offices of Salans Hertzfeld & Heilbronn, 9 rue
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Boissy d'Anglas, 75008 Paris, France, or such other location as
shall be mutually agreed by the parties, at 9 a.m. (Paris time)
first Business Day which is at least fifteen (15) Business Days
after the fulfillment of the condition precedent set forth in
Article II (such date and time being referred to herein as the
"Closing Date").
(b) At the Closing, the Seller shall deliver or cause to be
delivered to the Purchaser (i) duly executed share transfer
orders (ordres de mouvements) for all of the Shares ; (ii) a
duly executed Trade Debts transfer agreement in the form
attached in EXHIBIT VI hereto for all of the Trade Debts ; (iii)
a duly executed 1998 Debts transfer agreement in the form
attached in EXHIBIT VI hereto for all of the 1998 Debts; (iv)
duly executed Purchased But Non Funded Debts transfer agreements
in the form attached in EXHIBIT VI hereto for all of the
Purchased But Not Funded Debts; (v) duly executed Remaining
Debts (which have been acquired by the Seller in accordance with
Section 4.12) transfer agreements in the form attached in
EXHIBIT VI hereto for all of the Remaining Debts (which have
been acquired by the Seller in accordance with Section 4.12) and
(vi) the certificates and other documents required to be
delivered pursuant to Section 3.1 and listed in EXHIBIT VII. At
the Closing, the Purchaser shall deliver or cause to be
delivered to the Seller the certificates and the documents
required to delivered pursuant to Section 3.2 and listed in
EXHIBIT VII.
(c) On the Closing Date, the Purchaser shall pay to the Seller, by
wire transfer of immediately available funds to the bank account
of the Seller notified to the Purchaser in writing at least five
(5) Business Days prior to the Closing Date, (i) an amount of FF
98,553,456 corresponding to the sum of the Shares Closing
Payment and the Trade Debts Closing Payment, (ii) an amount
equal to the net balance of the Cofimeta Debt after its set-off
against the Arbel Debt (less the interest accrued on the Arbel
Debt and unpaid by Arbel to Cofimeta on the Closing Date), which
amount shall not be materially different than FF 6,789,700,
(iii) an amount equal to the sum of (x) the purchase price paid
by the Seller for the 1998 Debts transferred to the Purchaser
and (y) the purchase price paid by the Seller for the Purchased
But Not Funded Debts and the Remaining Debts acquired in
accordance with Section 4.12 and transferred to the Purchaser.
Moreover, the Purchaser shall deliver on the Closing Date (i)
the promissory notes referred to in Section 1.2.1(c) hereof,
(ii) the promissory notes in the amount of the unpaid principal
of the Trade Debts (as defined in Section 4.12 of this
Agreement) as provided in Section 1.2.2 hereof, and (iii) the
guarantee referred to in Section 1.2.1(d) hereof.
1.4 RIGHTS IN RESPECT OF SHARES.
As from the Closing, neither the Seller nor Arbel nor PSB nor any
of their Affiliates (other than the Companies) shall have any
rights in respect of the Shares (including without limitation any
right to receive dividends from the Companies on or after
Closing).
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ARTICLE II
CONDITION TO CLOSING RELATING TO COURT OF DOUAI; PROCEDURE
2.1 COURT OF DOUAI CONDITION.
The obligations of the Parties to consummate the transactions
contemplated by this Agreement are subject to the satisfaction at
or prior to Closing of the following condition in its entirety:
The Commercial Court of Douai shall have, by a definitive
judgment, (a) ordered Cofimeta Defeasance to bear the financial
undertakings and obligations (i) to repay in accordance with the
Plans the Remaining Debts which are not acquired by the Purchaser
pursuant to Section 4.12 (the "Unpurchased Remaining Debts")
(which undertakings and obligations shall be secured by a
guarantee from the Purchaser in favor of the creditors of the
Unpurchased Remaining Debts) and (ii) to pay the fees and
expenses of the officials appointed by the court in connection
with the Plans which remain due; (b) terminated the Plans
completely in respect of the Companies and, in all respects other
than as described in clause (a) above, in respect of Cofimeta
Defeasance, it being understood that the maturity dates for the
repayment of the debt pursuant to the Plans shall remain
unchanged; (c) confirmed that the Plans have been fully complied
with in all respects through the date of the judgment and that
Valfond is released from all of its obligations under the Plans;
(d) approved the transactions contemplated by this Agreement, in
each case without exception or qualification; and (e) not imposed
any obligations, restrictions or conditions on the Purchaser, the
Seller or any of the Companies other than in accordance with the
other clauses of this Section 2.1 and in particular and without
limiting the foregoing, the Purchaser shall not be obliged to
accept any request for funding above the level which the
Purchaser would have independently and in its sole discretion
decided to furnish to the Companies.
2.2 PROCEDURE IN RESPECT OF THE COURT OF DOUAI.
Valfond will, in consultation with the Purchaser, file all
necessary petitions before the Commercial Court of Douai in order
to obtain all necessary approvals for the implementation of the
operations contemplated in this Agreement, including any requests
for amendments or termination of the Plans which the Purchaser
may propose and which will be acceptable to Valfond in its sole
discretion. Valfond will cooperate in good faith with the
Purchaser in connection with such procedure. The Seller agrees
and shall cause its advisers, the Companies and their advisers,
(i) not to meet with the Commercial Court of Douai or any members
thereof or the commissaire a l'execution du plan or any other
official related to such court, (a) without the prior written
approval of the Purchaser or (b) without its presence, and (ii)
not to submit any document or information or file any petition to
the Commercial Court of Douai before they have been reviewed and
approved by the Purchaser.
The Purchaser will cooperate with Valfond with this
procedure and will review and cooperate to the extent it deems
reasonable with requests for any necessary documents, information
or warranties from the Commercial Court of Douai in order for the
Purchaser to be substituted
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for Valfond in the performance of the terms and conditions of the Plans
as they may be amended in accordance with this Section 2.2.
The fees related to the proceeding before the Commercial Court of Douai
(except the legal fees and other expenses incurred in that connection by
the Purchaser) shall be borne by Valfond.
ARTICLE III
OTHER CONDITIONS TO CLOSING
3.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PURCHASER.
The obligations of the Purchaser to consummate the transactions
contemplated by this Agreement are also subject to the satisfaction at
or prior to Closing of each of the following conditions, any one or more
of which may be waived by the Purchaser in its sole discretion:
(i) all representations and warranties and covenants made by the
Seller in this Agreement shall be true and correct and shall
have been performed in all material respects (in the case of
representations and warranties) and in all respects (in the case
of covenants) on and as of the date hereof and the Closing Date
as though restated on and as of such date (except in the case of
any representation or warranty that by its terms is made as of a
date specified therein, which shall be accurate as of such
date), and the Seller shall provide a certificate to the
Purchaser at Closing in the form of EXHIBIT VIII confirming that
fact;
(ii) the Persons listed on EXHIBIT IX shall have tendered their
resignations from their respective offices;
(iii) the Seller shall have made available to the Purchaser for its
review at least ten (10) full Business Days prior to the Closing
Date and at Closing the share registers and other statutory
books of the Companies, and shall have delivered to the
Purchaser in reasonably satisfactory form evidence of compliance
by the Seller, Arbel and PSB with all preemptive or similar
rights contained in the statuts of the Companies or in any
shareholders' agreement of the Companies;
(iv) no Judgment or Law issued or enacted by any court or
governmental or regulatory authority, which declares this
Agreement invalid in any material respect or prevents the
consummation of the transactions contemplated hereby shall be in
effect; and no action or proceeding before any court or
governmental or regulatory authority, shall have been instituted
or by any Person (other than the Purchaser or any of its
Affiliates) which seeks to prevent or delay the consummation of
the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement
(other than a frivolous or vexatious application);
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(v) during the period from July 1st, 1998, to the Closing Date,
there shall not have been any change in the assets, properties,
business, operations, prospects or financial condition of any of
the Companies which individually or in the aggregate would
constitute a Material Adverse Effect;
(vi) Valfond shall have purchased at par value the Arbel Debt from
Cofimeta and set off the amount of the Arbel Debt against the
Cofimeta Debt pursuant to a debt transfer and set-off agreement
in the form attached in EXHIBIT X hereto;
(vii) at Closing Jean-Francois Constant and Patrick Sermesant shall
have remained employed by the Companies;
(viii) Valfond shall have delivered signed non-competition agreements
in the form of EXHIBIT XI between the Purchaser and each of
Groupe Valois and Arbel Industrie, all in respect of the
Restricted Business;
(ix) the Seller shall have provided to the Purchaser for its review
at least thirty (30) full Business Days prior to the Closing
Date (i) a certified copy of the duly adopted resolutions of the
Board of Directors of Arbel and PSB approving the transfer of
the Shares held at the date hereof by Arbel and PSB in Cofimeta
and (ii) a certified copy of extracts of the promises to sell
(promesses de vente)<-1- 95>for all of the Shares held by PSB
and Arbel at the date hereof evidencing that the Seller has an
irrevocable right to acquire good and marketable title to all of
the Shares held by Arbel and PSB as from the date hereof; such
certification shall be signed by the President of the Seller and
shall contain a confirmation that there is nothing in the rest
of such promises to sell or in any other agreement which would
affect such right.
(x) The offices rental agreements between Cofimeta and
Etablissements Arbel dated October 30, 1997 and between Cofimeta
and Waeles Gestion dated June 15, 1998 shall have been amended
in accordance with EXHIBIT XII hereof, providing for a term
expiring on December 31, 1999 (with a right of earlier
termination upon 120 days' notice) and for rent equal to the
same rent per square meter as paid by Cofimeta to Etablissements
Arbel and Waeles Gestion per square meter in accordance with the
lease agreements in its current form ;
(xi) (a) (i) The consolidated financial statements (including the
balance sheet, the profit and loss statement and annexes thereto
of the Companies as of and for the period ended on September 30,
1998, (the "September 30, 1998 Financial Statements") shall have
been audited by PricewaterhouseCoopers at the latest within one
month after the latter of (x) the date of this Agreement and (y)
the date on which the Seller provides to the Purchaser
consolidated financial statements of the Companies with
appropriate footnotes as at September 30, 1998, and (ii) such
September 30, 1998 Financial Statements as audited by
PricewaterhouseCoopers shall not show any material discrepancy
with the consolidated June 30, 1998 Financial Statements;
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(b) Should PricewaterhouseCoopers not have audited the September
30, 1998 Financial Statements by the deadline set forth in
Section 3.1(xi)(a)(i) hereof, the September 30, 1998 Financial
Statements shall be deemed not to show any material discrepancy
with the consolidated June 30, 1998 Financial Statements. The
effectiveness of this subsection (b) is specifically conditioned
on the following obligations of the Seller: (i) to cooperate,
and to cause the Companies to cooperate, fully and in good faith
with the Purchaser and PricewaterhouseCoopers in order to enable
PricewaterhouseCoopers to furnish its audit of the September 30,
1998 Financial Statements by such deadline; (ii) to afford, and
to cause the Companies to afford, to the Purchaser and to
PricewaterhouseCoopers access to the Companies' properties,
books, contracts, commitments, records and information to the
same extent as they would in connection with a full audit of the
annual financial statements of the Companies under French
generally accepted accounting principles; (iii) to cause the
Companies to assign adequate personnel to support and facilitate
the audit process; (iv) to provide on a timely basis such
information to PricewaterhouseCoopers as the latter may
reasonably request and which would be required for a full audit
of the annual financial statements of the Companies under French
generally accepted accounting principles; and (v) to cause the
management of the Companies to deliver any and all certification
or representation letters PricewaterhouseCoopers may require in
connection with such audit in the form of EXHIBIT XIII hereof;
provided that the Purchaser shall exercise the same discretion
in connection with the foregoing as it is required to exercise
pursuant to Section 4.2.
(c) For the purpose of Section 3.1(xi)(a), material discrepancy
shall mean a negative difference between the consolidated net
worth of the Companies as at September 30, 1998 and the
consolidated net worth of the Companies as at June 30, 1998
greater than an amount of FF 1,000,000. To achieve an
appropriate comparison earnings or losses from operations in the
ordinary course of business between June 30, 1998 and September
30, 1998 shall be excluded in the preparation of the September
30, 1998 Financial Statements for purposes of this Section.
(xii) The Seller shall have obtained a letter in the form of EXHIBIT
XIV signed by Arbel waiving any and all rights of Arbel towards
the Companies in respect of management fees;
(xiii) (a) Dames & Moore (or such other environmental consulting firm
as the Parties may agree upon in writing) shall have conducted a
Phase II environmental survey on all the sites of Somenor (or at
the Purchaser's option a lesser environmental survey) (together
with an "Evaluation Simplifiee des Risques" as referred to in
the Arretes dated September 4, 1998 of the Prefet du Nord) and
shall have delivered their final report thereon; and
(b) Dames & Moore's report shall not contain findings which
would result in a Material Adverse Effect.
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(xiv) The Renegotiated Debt (as defined in Section 4.12 hereof) shall
not exceed FF 152,000,000;
3.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE SELLER.
The obligations of the Seller to consummate the transactions
contemplated by this Agreement are subject to the satisfaction at or
prior to the Closing of each of the following conditions, any one or
more of which may be waived by the Seller in its sole discretion:
(i) the Purchaser shall have performed and complied with, all
agreements required by this Agreement to be performed or
complied with by it prior to or at Closing;
(ii) the Purchaser shall have tendered to the Seller the Shares
Closing Payment and the Trade Debts Closing Payment;
(iii) no Judgment or Law issued or enacted by any court or other
governmental or regulatory authority, which declares this
Agreement invalid in any material respect or which prevents the
consummation of the transactions contemplated hereby shall be in
effect; and
(iv) the Purchaser shall have tendered to the Seller the guarantee
referred to in Section 1.2.1(c) and the promissory notes
referred to in Sections 1.2.1(d) and 1.2.2 hereof.
ARTICLE IV
COVENANTS OF THE SELLER
4.1 ORDINARY COURSE OF BUSINESS
(a) During the period from the date of this Agreement through
Closing (or the earlier termination of this Agreement pursuant
to Section 8.3 hereof), the Seller will ensure that the
Companies will conduct their business solely "en bon pere de
famille" and in the ordinary course consistent with past
practices and, without limiting the foregoing, without the prior
written consent of the Purchaser, the Seller will not, except as
required or permitted pursuant to the terms of this Agreement,
permit any of the Companies (taken individually or collectively)
to:
(i) make any change in the conduct of their business or
operations or enter into any transaction other than in
the ordinary course of business consistent with past
practices and this Agreement or be involved in any
transaction in any kind which results or will result in
a Material Adverse Effect on the Companies;
(ii) make any change in their statuts or issue any additional
shares of capital stock or other interest in their
capital, grant any option, warrant or right to acquire
any capital stock or interest in their capital, or issue
any security convertible into or exchangeable for their
capital stocks or interests in their capital or
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make any change in their outstanding shares of capital
stock or other interests in their capital;
(iii) incur, assume or guarantee any indebtedness for borrowed
money, except pursuant to transactions in the ordinary
course of business consistent with past practices and on
commercially reasonable terms and in an aggregate amount
not in excess of FF 500,000;
(iv) redeem or purchase any shares of their capital stock or
declare, set aside, make or pay (in cash or otherwise)
any dividend or other distribution in respect of their
capital stock or any form of profit participation or any
special payment;
(v) make any change in their methods of accounting or make
any material change in any sales procedures or policies
or in its practices for the collection of accounts
receivables;
(vi) acquire or form any corporation, partnership,
association or other business organization;
(vii) make any sale, assignment, transfer, abandonment or
other conveyance of any of its assets or any part
thereof, except transactions pursuant to existing
contracts expressly referenced in the Exhibits or
Schedules hereto and dispositions of inventory for fair
or reasonable value in the ordinary course of business
consistent with past practices, or enter into any
agreement (whether verbal or written) with any customer
providing for any new rebate or discount or modifying
any existing rebate or discount listed in Schedule 5.17;
(viii) acquire any items of real property; acquire any items of
equipment or machinery having an individual value in
excess of the amount provided for such item in the
original approved budget for 1998 (the "Budget"), a copy
of which is attached in EXHIBIT XV hereto, or dispose of
any item of equipment or machinery for a price less than
its book value, or make any capital expenditure in the
aggregate in excess of 10% of the original value
provided for in the Budget;
(ix) make any loan, advance or capital contribution to or
investment in any Person, except loans or advances with
respect to salaries, goods or services pursuant to
transactions in the ordinary course of business
consistent with past practices and on commercially
reasonable terms;
(x) notwithstanding clause (ix) make any change in their
long-term debt;
(xi) pay, lend or advance any amount to, or sell, transfer or
lease any properties or assets to, or incur any
obligations in respect of, any of the Companies, the
Seller, Arbel, PSB or their Affiliates or their
shareholders, managers,
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employees or consultants or family members thereof,
except transactions pursuant to existing contracts
expressly referenced in the Exhibits and Schedules
hereto and for amounts and under conditions consistent
with past practices, or enter into any new agreement or
arrangement with any of the aforementioned Companies,
Affiliates or Persons;
(xii) appoint or hire any additional managers, employees or
consultants other than temporary employees hired
pursuant to contracts of fixed duration (contrats a
duree determinee) of not more than six (6) months or in
conditions consistent with past practices, or increase
remuneration or benefits of managers, employees or
consultants;
(xiii) take any action that would have the direct consequence
of causing any of the representations and warranties
made by the Seller in this Agreement not to remain true
and correct;
(xiv) incur or grant liens on any property or enter into any
Contract (as this term is defined in Section 5.10 below)
; or
(xv) enter into any new purchase orders individually in
excess of FF 1,000,000 or in the aggregate in excess of
FF 5,000,000;
(xvi) discount any of their current debts or make any
prepayments thereof, other than (i) factoring of
accounts receivable consistent with past practice or
(ii) discounting debt in accordance with Section 4.12
(it being understood that the Companies are authorized,
as an exception to this clause, to prepay to the Seller
the interest accrued through the Closing on the 1998
Debts and the Purchased But Not Funded Debts purchased
in accordance with Section 4.12 at the rate specified in
the Plan); and
(xvii) commit itself to do any of the foregoing.
(b) During the period from the date of this Agreement through
Closing (or the earlier termination of this Agreement pursuant
to Section 8.3 hereof), the Seller will cause the Companies to
keep the Purchaser regularly informed in writing of (i) any
discounting or write-offs of any notes or accounts receivable or
portions thereof where the amounts of such discounting or
write-offs involved are individually or in the aggregate in
excess of FF 1,000,000, (ii) any issue or problem faced by the
Companies in connection with the collection of any receivables
and (iii) any proposals to customers for new purchase orders.
(c) During the period as from the date of this Agreement through
Closing (or the earlier termination of this Agreement pursuant
to Section 8.3 hereof), the Seller shall make its best efforts
to preserve the business and goodwill of the Companies and in
particular shall not authorize or permit any of the Companies to
transfer any employee of the Companies other than Mr. Fernandes
and Mr. Jean-Michel Guichon to the Seller, to Arbel, to PSB or
to any Affiliates or business units thereof without
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the Purchaser's prior written approval. Moreover, the Seller
shall not authorize and/or permit any purchase orders or
requests for proposals to be directly or indirectly transferred
or directed by the Companies to the Seller, Arbel, PSB or to any
Affiliates or business units thereof without the Purchaser's
prior written approval.
(d) The Purchaser covenants, when required by the Seller to consent
to any action for which the Purchaser's agreement is required
pursuant to Section 4.1 hereof, to promptly notify the
Purchaser's answer to the Seller, which answer shall be in the
sole discretion of the Purchaser. The Purchaser further agrees
that if no answer has been notified by the Purchaser within ten
(10) Business Days after receipt by the Purchaser of the
Seller's request for such consent, such absence of answer shall
be deemed to be a consent to the Seller's request.
4.2 ACCESS
The Seller shall afford, and shall cause the Companies to afford, to the
Purchaser and its representatives and legal, financial and environmental
advisers access during normal business hours throughout the period from the
date hereof through the Closing Date (or the earlier termination of this
Agreement pursuant to Section 8.3 hereof) to the Companies' properties,
books, contracts, commitments and records and, during such periods, shall
furnish promptly to the Purchaser all other information and certificate
concerning the Companies' business, properties and personnel as the
Purchaser may reasonably request in order to conduct and complete its due
diligence review of the business, assets, liabilities and accounting and
financial condition of the Companies, provided that the Purchaser shall, to
the extent consistent with the performance of a complete due diligence
review of the Companies, exercise discretion in its inquiries of the
Companies' personnel and third parties.
4.3 LIMITATIONS ON SOLICITATION
Each Party agrees that for a period of two (2) years from the date hereof,
neither itself nor any member of its group shall directly or indirectly
solicit any management or technical person now employed by any companies of
the other Party's group without the consent of the relevant Party.
4.4 EXCLUSIVITY
From the date hereof through Closing (or termination of this Agreement
pursuant of Section 8.3 hereof if earlier), neither the Seller nor Arbel nor
PSB nor any of their Affiliates, nor the Companies, nor the Companies'
officers or directors nor anyone acting on behalf of the Seller, of Arbel,
of PSB or of their Affiliates or of such Persons shall, directly or
indirectly, encourage, continue, solicit, engage in discussions or
negotiations, or enter into any agreement, with any Person (other than the
Purchaser or its representatives), or provide any information to any
potential purchaser (other than the Purchaser or its representatives),
concerning any purchase or sale of shares, merger, consolidation,
liquidation, sale of substantially all of the assets or similar transaction
involving the Companies or their assets, or encourage any third party to
initiate unsolicited actions to accomplish any of the
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foregoing. The Seller shall notify the Purchaser immediately in writing
of the details of any indications of interest from any Persons with
respect to the foregoing of which the Seller or Arbel or PSB or their
Affiliates or the Companies become aware.
4.5 SHAREHOLDERS MEETING
The Seller shall cause a special meeting of the shareholders of the
Companies to be validly called for the Closing Date, the agenda of which
shall include the matters listed on EXHIBIT XVI hereto.
4.6 FURTHER ACTIONS
Subject to the terms and conditions herein provided, the Seller and the
Purchaser shall use their best efforts, to take, or cause to be taken,
all such further actions and to do, or cause to be done, all such
additional things necessary, proper or advisable consistent with all
applicable Laws to consummate and make effective the transactions
contemplated by this Agreement, including obtaining by the Seller and
the Purchaser as applicable, of any Consents to consummate the
transactions contemplated by this Agreement. In particular, the Seller
and the Purchaser shall keep each other regularly informed of their
actions in connection with the satisfaction of the conditions set forth
in Articles II and III.
Moreover, consistent with applicable Laws, the Seller shall procure (se
porte fort) from the Companies and from Arbel, PSB and their Affiliates
full cooperation in order to give effect to this Agreement.
4.7 UNDERTAKINGS NOT TO COMPETE
In consideration of the purchase of the Shares and the Trade Debts and
in order to guarantee the transfer to the Purchaser of the full value of
the Shares, the Seller undertakes with the Purchaser that it will not:
(a) for a period of five (5) years from the Closing Date within the
territory of the French Republic hereto carry on or be engaged
in any Restricted Business;
(b) at any time after Closing disclose or use for any purpose any
information concerning the Companies or their business affairs,
except_:
(i) to the extent required by Law;
(ii) to its professional advisers under circumstances of
confidentiality, or
(iii) to the extent that such information is at the date
hereof or hereafter becomes public knowledge otherwise
than through improper disclosure by any Person.
4.8 DELAYED SHARES
The Seller shall use its best efforts to obtain that the Delayed Shares
are transferred to the Purchaser within ninety days of the Closing and
without any cost to the Purchaser. The Seller covenants that upon
transfer of the Delayed Shares to the Purchaser, the Delayed Shares
shall be fully negotiable and free from any option rights, claims,
privileges, liens, security
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interests, collateral, encumbrances, charges or restrictions of any kind
whatsoever.
4.9 MANAGEMENT INFORMATION SYSTEM
The Seller shall not permit any of the Companies to acquire or implement
or incur any costs in connection with of any new management information
system (i) which would not be operationally independent of any and all
management information system of the Seller, Arbel or PSB or their
Affiliates as from the Closing and (ii) without the prior written
approval of the Purchaser.
4.10 COFIMETA DEFEASANCE
Prior to December 31, 1998, the Seller shall cause Cofimeta (or one of
its subsidiaries at the Purchaser's option) to form and register
Cofimeta Defeasance under French law in a form and manner acceptable to
the Purchaser ("Cofimeta Defeasance").
4.11 VENDOR'S NUMBERS
If and to the extent any customer vendor numbers used in respect of
sales by the Companies to such customers are not in the name of one of
the Companies, the Seller shall cause all such customer vendor numbers
to be transferred to the relevant Companies prior to the Closing.
4.12 RENEGOTIATION OF THE COMPANIES' DEBTS
The Seller hereby covenants as follows:
(i) As from the date hereof through the Closing Date, the
Seller, with the support of Cofimeta and the Purchaser, will
pursue the renegotiation of the Remaining Debts. The Seller
hereby undertakes to use its best efforts to acquire from
creditors of the Companies an amount of Remaining Debts to
ensure that the sum of (i) the price paid by the Seller to
acquire the 1998 Debts, (ii) the price to be paid by the Seller
(or the Purchaser, if the rights to purchase the Purchased But
Not Funded Debts have been assigned by the Seller to the
Purchaser at Closing) to acquire the Purchased But Not Funded
Debts, (iii) the purchase price of the Remaining Debts acquired
by the Seller between the date hereof and the Closing Date in
accordance with this Section and (iv) the balance of the
Remaining Debts as of the Closing Date, (together the
"Renegotiated Debt"), shall not in the aggregate exceed FF
152,000,000 (the "Target Amount"). At the date hereof, the
Renegotiated Debt is equal to FF 149,530,138.
(ii) In connection with the purchase of the Remaining Debts
contemplated by Section 4.12(b)(i) to achieve the Target Amount,
the Seller covenants not to acquire or enter into any agreement
with any creditor in respect of the purchase of the Remaining
Debts which would represent a discounted purchase price higher
than 55% of the face value of each of the interest bearing
Remaining Debts and 45% of the face value of each of the non
interest bearing Remaining Debts.
(iii) Should the Seller succeed in achieving the Target Amount,
prior to the Closing Date, the Seller shall use its best efforts
to acquire additional Remaining
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Debts at a purchase price which is not higher than 50% of the
face value of each of the interest bearing Remaining Debts and
40% of the face value of each of the non interest bearing
Remaining Debts. The Seller undertakes not to acquire or enter
into any agreement with any creditor for the acquisition of any
additional Remaining Debts other than as set forth in the
immediately preceding sentence without the prior written
approval of the Purchaser.
The Purchaser agrees that if no answer has been notified by the
Purchaser within ten (10) Business Days after receipt by the
Purchaser of the Seller's request for such consent, such absence
of answer shall be deemed to be a consent to the Seller's
request.
(iv) As from the date hereof through the Closing Date (or the
earlier termination of this Agreement pursuant to Section 8.3
hereof), the Seller shall keep the Purchaser regularly informed
of the status of the renegotiation of the Companies debts
referred to herein. Such information shall include weekly
written reports to the Purchaser on (i) the amounts purchased,
(ii) the creditor concerned, (iii) the acquisition value, (iv)
the amounts which are the subject of the negotiations underway
and timely furnishing to the Purchaser of copies of (x) all
draft agreements to be entered into in connection with this
renegotiation before they are actually executed and (y) of all
agreements once they have been executed and any other
information the Purchaser may require in its sole discretion
with respect to this renegotiation.
(v) At Closing, the Seller shall transfer to the Purchaser the
1998 Debts, the Purchased But Not Funded Debts and the Remaining
Debts it acquired in accordance with Section 4.12 hereof and
assign to the Purchaser its rights to acquire the Purchased But
Not Funded Debts and the Remaining Debts subject to a written
agreement to acquire but which have not been effectively
acquired by the Seller prior to Closing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES GIVEN BY THE SELLER
In order to ensure the complete information of the Purchaser, the Seller has
disclosed to it as well as to its advisers the documents and information (texts
of questions and texts of responses together with photocopies of all documents)
set forth in Exhibit XVII (hereafter referred to as the "Audit Information"),
and which include, among others, legal, financial accounting and commercial
matters; the Purchaser has, in addition, met the statutory auditors of the
Companies and, with the consent of the Seller, has consulted their files and has
also caused its advisors to perform an accounting and financial audit, a legal
audit and an environmental audit on the different sites operated by the
Companies.
The Purchaser is aware that the management of the Companies was not carried out
by the Seller before June 26, 1997.
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The Purchaser, being a professional and having full knowledge of the industrial
sector of the Companies' activities, (i) has accepted that none of the documents
contained in the Audit Information or the Schedules hereto shall give right to
indemnification by the Seller except as provided in Article VII hereto and (ii)
to limit its contractual rights to indemnification by the Seller to those set
forth in Article VII.
However, independently of and notwithstanding the foregoing paragraphs of this
Article V, the Seller hereby makes the representations and warranties set forth
below with respect to the Companies and acknowledges that the Purchaser has
agreed to enter into this Agreement on the basis of such representations and
warranties and is relying on them to the extent provided in Article VII. The
Seller hereby confirms that such representations and warranties are true,
complete and not misleading.
5.1 CORPORATE MATTERS ; AUTHORIZATION AND VALIDITY
(a) Each Company has been duly organized in conformity with the laws
of France. Except as set forth in Schedule 5.1(a), the Companies
have obtained all permits, licenses, authorizations and
approvals (governmental or otherwise) necessary to own and
operate their assets and to carry out their business as is now
being conducted. Since June 26, 1997, the Companies have
accurately and diligently accomplished, on or prior to the
applicable deadlines, all formalities that are required to
validly continue their existence.
(b) There has been no request for the annulment or the dissolution
of any of Company, nor any bankruptcy restructuring procedure
("redressement judiciaire"), except for the procedure which
resulted in the Plans, or judicial liquidation, nor any
equivalent procedure; none of the Companies are insolvent ("etat
de cessation de paiements"). There are no grounds upon which a
third party could require the dissolution or winding up of the
affairs of any Company.
(c) A complete, up-to-date, certified copy of the statuts of the
Companies, as well as an original excerpt ("Extrait K-bis") from
the Registry of Commerce and Companies for the Companies are
attached hereto in Schedule 5.1(c)(i). No resolution has been
approved that results or will result in the amendment of the
attached by-laws or the dissolution or winding up of the affairs
of any Company. Since June 26, 1997, all of the corporate books
and registries of the Companies have been properly maintained in
all material respects in accordance with applicable law. The
corporate books and registries of the Companies accurately
reflect, in all material respects in accordance with applicable
law, their activities since June 26, 1997. A copy of the last
board of directors minutes of each Company, as well as the
minutes of the last shareholders' meeting, are attached hereto
as Schedule 5.1(c)(ii).
(d) Other than the Companies, the Companies do not have any
subsidiaries and do not directly or indirectly hold shares or
other securities or interests in any company, entity or other
Person, whether French or foreign. Neither of the Companies is
part of any group or association with third parties nor of any
organization to which it
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could be obligated to contribute additional capital or the
liabilities of which it could be required to pay or guarantee.
Except as set forth in Schedule 5.1(d) hereto, none of the
Companies acts as a member of the board of directors of any
other company. No contract exists whose stated purpose is to
give to a third party (i) influence over the control or the
management of the Companies or their respective business or (ii)
a right to claim a part of the profits of the Companies.
(e) The execution of this Agreement by the Seller and the
performance by the Seller of the transactions contemplated
herein have been duly authorized by all actions (including any
corporate actions) on behalf of the Seller. This Agreement has
been duly executed by the Seller and, assuming the due
authorization and execution of this Agreement by the Purchaser,
constitutes a valid and binding obligation of the Seller,
enforceable against it in accordance with its terms. Except for
the consent of the Commercial Court of Douai, no consent of any
third party (whether governmental or otherwise) is required by
the Seller to consummate the transactions contemplated by this
Agreement. Neither the execution of this Agreement nor the
performance of the transactions contemplated herein will violate
or constitute a default under any material contract to which the
Seller or Arbel or PSB or any of their Affiliates is a party or
by which their assets or property are bound or any law or any
order, judgment or rule of any governmental authority which is
applicable to the Seller or Arbel or PSB or any of their
Affiliates or any of their assets or property.
(f) The Shares represent 100% of the shares in Cofimeta. All of the
shares in the Companies other than the Shares are owned by
Cofimeta (or, in the case of the Delayed Shares, the Persons
identified in EXHIBIT I hereto) (such shares, together with the
Shares, the "COMPANIES' SHARES").
5.2 CAPITAL STRUCTURE
(a) The Companies' Shares are fully paid-in. The Companies have not
issued shares or rights of any kind whatsoever, other than the
Companies' Shares, which may give rise, directly or upon
conversion, exchange, reimbursement or exercise, to an increase
of its capital or an issuance of securities which entitle their
owners to a share of the profits or to voting rights of the
Companies.
(b) The Seller has full legal right, power and authority to sell the
Shares and have obtained all requisite permits and Consents for
such sale. Except as set forth in Schedule 5.2(b) in respect of
the Delayed Shares, the Companies' Shares are fully negotiable
and free from any option rights, claims, privileges, liens,
security interests, collateral, encumbrances, charges or
restrictions of any kind whatsoever.
5.3 EFFECT OF THE SALE
Except as set forth in Schedule 5.3 hereto, the sale of the
Shares to the Purchaser and the other transactions contemplated
hereby will not:
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(a) conflict with or violate the statuts of any Company or conflict
with or violate any legal or regulatory disposition, or any
judgment or decision that has been notified to any Company,
whether judicial or regulatory; or
(b) result in a Material Adverse Effect.
5.4 POTENTIAL CONFLICTS OF INTEREST/AFFILIATES
(a) Schedule 5.4(a) sets forth a list of any and all agreements
entered into by one or more of the Companies with the Seller,
Arbel, PSB or their Affiliates. Except as set forth in Schedule
5.4(a) hereto, neither the Seller, nor Arbel, nor PSB, nor any
of their Affiliates:
(i) holds, or has the option to acquire, directly or
indirectly, a participation in a company or business
which conducts business with the Companies as a
supplier, purchaser, lessor, provider of services or in
any other manner; or
(ii) holds, or has the option to acquire, directly or
indirectly, in whole or part, any assets or rights used
by any Company for purposes of conducting its activities
or which are necessary for the conduct of the business
of any Company; or
(iii) receives any remuneration from persons who provide goods
or services to any Company, or from persons who purchase
goods or services from any Company; or
(iv) has made, or intends to make, a claim against any
Company whether by virtue of a contract or by operation
of law ; or
(v) is owed any amounts by any Company by reason of a loan
or for any reason; or
(vi) employs or otherwise remunerates any person who is
employed or otherwise remunerated by the Companies.
(b) None of the Companies or their managers or employees have any
liability in respect of Arbel Ingenierie, including without
limitation in connection with its bankruptcy.
(c) Other than pursuant to the agreements identified in Schedule
5.4(c), as from the Closing Date, the Companies will no longer
be a party to or be bound by, or have any continuing obligations
or owe any sums or amounts under, any contract or commitments
with or in favor of the Seller, Arbel, PSB or any of their
Affiliates, in particular in connection with the contracts
listed in Schedule 5.4(a) hereto, such contracts having been
terminated as of Closing without any indemnity, expenses or
other sums whatsoever having been paid, and without any
liability or further obligations of any kind, by the Companies
and/or the Purchaser.
(d) As at Closing, the Seller and/or Arbel and/or PSB and/or their
Affiliates have paid to the Companies in full any and all
outstanding amounts owed by Seller and/or Arbel and/or PSB
and/or their Affiliates to the Companies. Anything in the
foregoing or in
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the agreements listed in Schedule 5.4(a) to the contrary
notwithstanding, as from January 1, 1998 until the Closing Date,
(i) management fees paid to the Seller, Arbel, PSB or any
Affiliates in respect of the Companies are equal in the
aggregate to 1.75% of the consolidated turnover (chiffre
d'affaires) of Cofimeta (excluding taxes) during such period;
and (ii) the total amount of fees Cofimeta has billed to and
received from Valfond in respect of services rendered by the
Cofimeta sales department during such period is equal to two
million French francs (FF 2,000,000) (excluding taxes) (x)
multiplied by the number of months of the calendar year 1998
lapsed or started on the Closing Date and (y) divided by 12. If
and to the extent the Seller, Arbel, PSB or their Affiliates
together received more than the amount in (i) above in
management fees from the Companies prior to Closing, the Seller
reimbursed or caused to be reimbursed to Cofimeta the amount of
such excess at the latest at the Closing.
5.5 FINANCIAL SITUATION
(a) The Seller has delivered to the Purchaser a complete copy of (i)
the audited financial statements (including the balance sheet,
the profit and loss statements and annexes thereto) of each of
the Companies and the unaudited consolidated financial
statements (including the balance sheet, the profit and loss
statements and annexes thereto) of the Companies reviewed by the
auditors of the Companies, each as of and for the year ended on
December_31, 1997 (hereinafter together the "1997
Financial Statements"), and (ii) the unaudited financial
statements (including the balance sheet, the profit and loss
statements and the annexes thereto) of each of the Companies and
the unaudited consolidated financial statements (including the
balance sheet, the profit and loss statements and the annexes
thereto) of the Companies, as of and for the period ended on
June 30, 1998 (hereinafter together the "June 30, 1998 Financial
Statements", and collectively with the 1997 Financial
Statements, the "Financial Statements"). The 1997 Financial
Statements and the June 30, 1998 Financial Statements are
attached hereto as Schedule 5.5 (a).
(b) The Financial Statements have been prepared according to the
accounting principles and methods generally accepted in France
applied on a consistent basis.
5.6 CURRENT OPERATIONS
Each of the Companies has since July 1st, 1998, been managed in the
ordinary course of business and "en bon pere de famille" and none of the
Companies has made any material change in the conduct of its business or
operations, nor entered into any transaction other than in the ordinary
course of business consistent with past practices. Except as set forth
in Schedule 5.6 hereto, since July 1st, 1998 each of the Companies have
fully respected the covenants set forth in Section 4.1, as if Section
4.1 applied as from July 1, 1998.
5.7 TAX, SOCIAL SECURITY AND CUSTOMS
In respect of the period prior to June 26, 1997, the Companies do not
have any liabilities for Taxes (as defined below) except as set forth in
Schedule 5.7. In respect of the period starting
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on June 26, 1997, except as set forth in Schedule 5.7, all tax returns,
reports, declarations of estimated tax and forms required to be filed on
or before the Closing Date by or on behalf of the Companies with respect
to any income, properties or operations of the Companies with any
taxing, customs, welfare, social security or other social authority have
been filed through the date hereof, or will be filed on or before the
Closing Date in accordance with all applicable laws, and all taxes
(including transfer, property, sales, withholding, income, value-added
or customs, business, ad valorem, social security fees, governmental
charges, welfare charges, or assessments, or social, welfare and other
contributions, governmental insurance fees, governmental pension plan
contributions, duties, charges, levies, contributions, penalties,
interest and other charges) (collectively "TAXES" and each individually
a "TAX") due under applicable law, whether or not reported or reflected
on such returns, reports, declarations, and forms have been paid or
reserved for in the Financial Statements. All Taxes that the Companies
were required by law to withhold or collect have been duly withheld or
collected, and, to the extent required, have been paid to the proper
authority. Except as set forth in Schedule 5.7, there is no action,
suit, proceeding, investigation, audit, examination or claim pending as
of the date hereof against any of the Companies or, with respect to any
Tax, nor has any claim for additional Tax been asserted by any such
authority relating to the Taxes of the Companies.
5.8 COMPLIANCE WITH THE PLANS; LITIGATION
(a) Without limiting Section 5.9, the Companies and the Seller have
always complied with and are currently in compliance with all of
the terms and conditions of the Plans.
(b) Except for those items described in Schedule 5.8(b) hereto, none
of the Companies is a party to any administrative, judicial or
arbitration procedures. Schedule 5.8(b) also sets forth, as a
matter of information only, the reserves in the Financial
Statements for liabilities which may arise as a result of any
procedures to which the Companies are a party, it being
understood that the Seller does not make any representation
whatsoever as to the accuracy of the amount of such reserves.
Except as set forth in Schedule 5.8(b), none of the Companies is
the subject of any written claim. None of the Companies has
received any written notification of a proceeding or
administrative investigation.
5.9 COMPLIANCE WITH LAWS
The Companies have acted and currently act in conformity with
the laws and binding decisions of competent authorities that are
applicable to them or that relate to their assets or activities,
except where such non-conformity has no Material Adverse Effect
in respect of any of them.
5.10 CONTRACTS; NO CONFLICT
(a) Schedule 5.10(a) hereto enumerates all of the contracts
and agreements, to which any Company is a party or which
are otherwise applicable to any Company and which
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were disclosed to the Purchaser (the "Contracts")
divided into the categories referred to on the cover
page of such schedule. No Company is a party to any
other contracts or agreements which would require
payment or receipt of payment in excess of FF 100,000.
Copies of all of the Contracts have been delivered to
the Purchaser and all such copies are true and complete.
(b) All of the Contracts are valid and enforceable.
(c) No Contract is in violation of any Laws which are
applicable thereto.
(d) None of the Companies is in breach of the obligations
contained in, or in default under, any of the Contracts
and to the best of Seller's knowledge no other party to
the Contracts is in breach of the obligations contained
therein thus giving a third party a right to terminate
or to require payment of an indemnity in excess of
FF_100,000. No event has occurred which may, with
due notice or the passage of time, or both, constitute a
breach or default under any of the Contracts.
5.11 REAL PROPERTY FIXTURES; PERSONAL PROPERTY AND EQUIPMENT
(a) Real Property and Fixtures. Schedule 5.11(a) sets forth
a true and complete list of all real properties which
the Companies own, lease (including under "contrats de
credits-bails"), use or have agreed or are obligated to
purchase, sell or lease, which specifies in each case,
if the concerned Company owns, leases, uses or has
agreed or is obligated to purchase, sell or lease, such
real property. The Companies have good and marketable
title to all real properties shown in such Schedule as
owned by them and good and transferable right to occupy
and use all real estate shown in such Schedule as leased
by them.
(b) Technical Installations, Personal Property and
Equipment. Schedule 5.11(b) sets forth a true and
complete list of all personal property and equipments
owned, leased or used by each of the Companies as at
June 30, 1998 together with all changes in that list
since that date. The Companies have good and marketable
title to all personal property and equipment shown in
such Schedule or owned by them and good and transferable
rights to use all personal property and equipment shown
in such Schedule or leased by them.
(c) Sufficiency. The assets which are owned, leased or used
by the Companies, currently and upon Closing, are
sufficient to operate the business of the Companies as
currently conducted.
5.12 ENVIRONMENTAL MATTERS
Except for matters described in the three environmental audit
reports attached in Schedule 5.12,
(a) the Companies and their respective operations have
obtained and maintained in effect and currently hold all
licenses, permits and other authorizations required
under all applicable laws, regulations and other
requirements of governmental or regulatory
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authorities relating to pollution or to the protection
of the environment and to health and safety
("Environmental Laws") and have carried out all the
formalities required under all Environmental Laws. The
Companies have been operated in and are currently in
compliance with all Environmental Laws and with all such
licenses, permits and authorizations. None of the
Companies has been subject to any inquiry, order, claim,
injunction, complaint, sanction or penalty in connection
with any Environmental Laws or any such license, permit
or authorization. None of the Companies has performed or
suffered any act which could give rise to, or has
otherwise incurred, liability to any person
(governmental or not) under any Environmental Laws, nor
have any of the Companies received notice of such
liability or any claim therefor or submitted notice to
any governmental agency with respect to any of their
respective assets;
(b) there is no prohibition, injunction, restriction or
limitation whatsoever, whether administrative or
judicial, with regard to any Environmental Law, limiting
the free disposal of the Companies' tangible personal or
real property. There is no fact or circumstance likely
to constitute the basis of such a prohibition,
injunction, restriction or limitation;
(c) except as set forth in Schedule 5.12(c) hereto, none of
the Companies owns or operates any classified
installation (installations classees) or any
installation that may be subject to an authorization
from the relevant administrative authorities, whether
national or local;
(d) except as set forth in Schedule 5.12(c), none of the
property of the Companies has been used to treat or
store any waste or substance on it and, in particular,
no underground storage tanks have ever been located on
any such property;
(e) none of the Companies has transported, or caused to be
transported, waste in a place or to a destination which
might incur its liability or that of the beneficiary, or
which might result in clean-up or refurbishment expenses
of the sites or which, more generally, might result in
damage to the environment or injury to persons;
(f) none of the Companies has exposed any person or assets
to hazardous materials, nor caused or allowed the
emission, dispersion, discharge or deposit of any solid,
liquid or gaseous substance causing a nuisance or
pollution to the atmosphere, water, ground and subsoil,
and to the fauna and flora nor the production of odors,
noise, vibrations, waves, radiation or temperature
variations;
(g) none of the Companies is the subject of any complaint or
of any judicial action or any judgment in the matter of
damage to the environment currently pending or
threatened before French, European Community and
international courts, whether civil, administrative or
criminal;
(h) there are no polychlorinated biphenyls ("PCB's") in or
at any property owned, leased, controlled or operated by
the Companies;
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(i) none of the real properties owned, leased, controlled or
operated by the Companies has had any friable asbestos
or asbestos containing material in or on it;
(j) except as listed in Schedule 5.12(j), there exist no
environmental audits, reports, investigations or
inspections nor do there exist any studies, analyses,
surveys or tests carried out by or in the possession of
the Companies or the Seller, PSB or Arbel or any of
their Affiliates or their advisers or of which the
Seller, PSB or Arbel or any of their Affiliates or the
Companies or their advisers are aware pertaining to any
matters covered by Section 5.12;
provided that, in respect of the period prior to
June 26, 1997, the foregoing representations in this Section 5.12
are given to the best knowledge of the Seller.
5.13 RECALLS
Except as set forth in Schedule 5.13 hereto, none of the
Companies has decided to recall or modify, for any alleged
material hazard or alleged defect in design, manufacture or
workmanship, any product which has been assembled or manufactured
by any of the Companies before the present date and no customer
has announced any recall or modification of any products
involving any products manufactured or assembled by any of the
Companies. Neither the Seller nor the Companies has any knowledge
of a warranty claim, default or recall by a customer or any basis
therefor.
5.14 INTANGIBLE PROPERTY RIGHTS
(a) Business ("Fonds de Commerce"). The "fonds de commerce"
operated by each of the Companies are fully owned by
them. Each such "fonds de commerce" has been lawfully
and validly created, purchased or contributed and,
except as set forth in Schedule 5.14(a) hereof, is free
from any pledge, security, privilege or any other
similar third party rights of any kind. None of the
Companies has leased any business pursuant to a
"location gerance".
(b) Intellectual Property Rights. (i) All patents, patent
applications, trademarks, trademark applications and
registered copyrights ("IP Rights") which are owned by
or licensed to each of the Companies are listed in
Schedule 5.14(b)(1). (ii) The IP Rights owned by each of
the Companies are valid in the countries where
registered and have been duly registered with the
offices as identified in Schedule 5.14(b)(1) and have
been properly maintained and renewed in accordance with
all provisions of applicable law and regulations. (iii)
Each of the Companies owns or has a valid license (for
the territory stated in the license) to use the IP
Rights needed to conduct their business as currently
conducted. (iv) There are no claims or demands which
have been asserted in writing by any third party to any
of the Companies with respect to the IP Rights. (v)
Except as described in Schedule 5.14(b)(2), none of the
Companies has any obligation to pay royalties or other
fees to third parties with respect to such IP Rights.
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5.15 OWNERSHIP AND LIENS
Except as set forth in Schedule 5.15 hereto, all of the
inventory and assets of the Companies reflected in the Financial
Statements are free from any options or Liens, and the Companies
have full ownership rights over them.
5.16 BANK ACCOUNTS
Schedule 5.16(b) contains a complete list of the name and
address of all financial institutions with which the Companies
have a line of credit or an account, indicating in each case the
persons having the authority to draw on these lines of credit or
use the accounts.
5.17 SUPPLIERS AND CUSTOMERS
Except (i) as set forth in Schedule 5.17 or (ii) in the ordinary
course of business consistent with past practice, neither the
Seller, nor Arbel nor PSB nor their Affiliates, nor any of the
Companies has granted or committed itself, whether orally or in
writing, to grant any discounts or rebates to any customers of
the Companies which would be required to be paid by any of the
Companies after June 30, 1998.
5.18 LABOR AND EMPLOYMENT MATTERS
(a) Except as set forth in Schedule 5.18(a), to the best
knowledge of the Seller, the Companies conducted their
business through June 26, 1997 in accordance with all
applicable labor and employment Laws. Since June 26,
1997, the Companies have conducted and currently conduct
their business in accordance with all applicable labor
and employment Laws.
(b) Schedule 5.8(b) contains a true and complete list of all
Collective Bargaining Agreements (conventions
collectives et accords d'entreprises ou conventions
d'usages) by which the members of the personnel of the
Companies are governed. Other than as set forth on
Schedule 5.18(b), no collective dismissals of the
personnel have been notified to any of the employees of
the Companies.
(c) Schedule 5.18(c) sets forth the name and total
remuneration (including in-kind benefits) of the ten
(10) most highly remunerated managers, employees and
representatives ("VRP") of each Company. None of these
persons has threatened in writing to end his or her
position or relationship with the one of the Companies,
and the Seller has no knowledge of any reason that could
warrant the revocation of these managers for misconduct
or termination of these employees or representatives for
"faute grave" or "faute lourde".
5.19 SUBSIDIES AND GOVERNMENTAL ASSISTANCE
Except as set forth in Schedule 5.19 hereto, the Companies do
not have or benefit from any governmental subsidies, be it
national, regional, departmental or other that the Companies
could be required to reimburse in whole or in part for any
reason whatsoever and none of the Companies will be required to
pay any indemnity or penalty of any nature whatsoever in
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connection therewith. Schedule 5.19 lists all of the amounts
which have been, and all of the amounts which are to be,
reimbursed by a governmental authority in respect of salaries
paid by the Companies; all such amounts are the property of the
Companies.
5.20 INSURANCE
(a) Except as set forth in Schedule 5.20 hereto, there is no
claim by the Companies pending under the policies of
title, liability, fire, casualty, business interruption,
and other forms of insurance insuring the properties,
assets and operations of business of the Companies as to
which coverage has been questioned, denied or disputed
by the underwriters of such policies. The coverage which
the policies insure is normal and prudent in the
industry relating to the specific activities exercised
by the Companies.
(b) The broker agreement dated April 16, 1997, between the
Company and Cabinet Girardclos & Bry has been terminated
at no cost to any of the Companies.
5.21 CONTINGENT CLAIMS OR LIABILITIES
There are no contingent claims or liabilities of any kind or
nature against the Companies other than as set forth in the
Financial Statements and the Schedules hereto.
5.22 BROKERS
All negotiations pertaining to the sale of the Shares and the
agreements relating to such sale have been carried on in such a
manner that no broker or other person acting on behalf of the
Seller, Arbel, PSB, or their Affiliates shall have a valid claim
against any of the Companies or against Purchaser and its
shareholders for any broker's fee or finder's fee or similar
compensation.
5.23 COMPANIES DEBTS / PLAN INFORMATION
(a)(i) Continuation Plans Creditors.
Attached in Schedule 5.23(a)(i) hereto is a true and
complete list of each creditor of the Companies which is
subject to the Plans and for each such creditor (i) its
name, (ii) its category (intercompany, bank, supplier or
public authority), (iii) the repayment option applicable
under the Plans, (iv) the principal amount payable (plus
applicable interest rate if any) by the Companies to
such creditor under the Plans as of December 31, 1997,
(v) any payment made to such creditor by the Companies
and the date of such payment as well as any payment due
which is to be made, (vi) any adjustment approved by the
Commercial Court of Douai in the amount payable by the
Companies to such creditor, (vii) the current balance of
the amount payable by the Companies to such creditor,
(viii) the next payment due and the date thereof and
(ix) indicating whether or not the amount set forth in
(vii) has been challenged (conteste). All amounts and
information contained in Schedule 5.23(a)(i) are true
and accurate and none of the Companies has creditors
subject to the Plans other than those listed in Schedule
5.23(a)(i) hereto.
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(a)(ii) Trade Debts (Valfond Purchase 1).
Attached in Schedule 5.23(a)(ii) hereto is a true and
complete list of each creditor of the Companies whose
debts (the "Trade Debts") were purchased by the Seller
in 1997 and for each such creditor (i) its name, (ii)
its category (intercompany, bank, supplier or public
authority), (iii) the repayment option applicable under
the Plans, (iv) the principal amount payable (plus
applicable interest rate if any) by the Companies to
such creditor under the Plans as of December 31, 1997,
(v) any payment made to such creditor by the Companies
and the date of such payment as well as any payment due
which is to be made, (vi) any adjustment approved by the
Commercial Court of Douai on the amount payable by the
Companies to such creditor, (vii) the current balance of
the amount payable by the Companies to such creditor,
(viii) the next payment due and the date thereof and
(ix) the purchase price paid by the Seller to acquire
the Trade Debts. All amounts and information contained
in Schedule 5.23(a)(ii) are true and accurate. The
Seller has good and marketable title to the Trade Debts
and warrant their existence. The Seller is fully
subrogated in the rights of the original creditor in
respect of the Trade Debts. The Trade Debts have been
duly approved (admises) for their entire amount by the
Commercial Court of Douai and have not been challenged
(contestees). The acquisition of the Trade Debts by the
Seller was duly notified to the Companies in accordance
with Article 1690 of the French Civil Code. None of such
creditors is owed any amount by the Seller by reason of
such transfer.
(a)(iii) Purchased and Funded Debts (Valfond Purchase 2).
Attached in Schedule 5.23(a)(iii) hereto is a true and
complete list of each creditor of the Companies subject
to the Plans whose debts (the "1998 Debts") were
purchased and paid for by the Seller in 1998 and for
each such creditor (i) its name, (ii) its category
(intercompany, bank, supplier or public authority),
(iii) the repayment option applicable under the Plans,
(iv) the principal amount payable (plus applicable
interest rate if any) by the Companies to such creditor
under the Plans as of December 31, 1997, (v) any payment
made to such creditor by the Companies and the date of
such payment as well as any payment due which is to be
made, (vi) any adjustment approved by the Commercial
Court of Douai on the amount payable by the Companies to
such creditor, (vii) the current balance of the amount
payable by the Companies to such creditor, (viii) the
next payment due and the date thereof and (ix) the
purchase price paid by the Seller to acquire the 1998
Debts. All amounts and information contained in Schedule
5.23(a)(iii) are true and accurate. The Seller has good
and marketable title to the 1998 Debts and warrant their
existence. The Seller is fully subrogated in the rights
of the original creditor in respect of the 1998 Debts.
The 1998 Debts have been duly approved (admises) for
their entire amount by the Commercial Court of Douai and
have not been challenged (contestees). The acquisition
of the 1998 Debts by the Seller was duly notified to the
Companies in
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accordance with Article 1690 of the French Civil Code.
None of such creditors is owed any amount by the Seller
by reason of such transfer.
(a)(iv) Purchased Debts Subject to Funding.
Attached in Schedule 5.23(a)(iv) hereto is a true and
complete list of each creditors of the Companies subject
to the Plans with whom the Seller has, at the date of
this Agreement, entered into a binding agreement for the
acquisition of their debts but not paid them yet (the
"Purchased But Not Funded Debts") and for each such
creditor (i) its name, (ii) its category (intercompany,
bank, supplier or public authority), (iii) the repayment
option applicable under the Plans, (iv) the principal
amount payable (plus applicable interest rate if any) by
the Companies to such creditor under the Plans as of
December 31, 1997, (v) any payment made to such creditor
by the Companies and the date of such payment as well as
any payment due which is to be made, (vi) any adjustment
approved by the Commercial Court of Douai on the amount
payable by the Companies to such creditor, (vii) the
current balance of the amount payable by the Companies
to such creditor, (viii) the next payment due and the
date thereof, (ix) the purchase price to be paid for the
acquisition of the Purchased But Not Funded Debts, the
date the purchase price payment thereof is to be made
being set forth in EXHIBIT A. When such Purchased But
Not Funded Debts are paid, the Seller (or the Purchaser,
after the assignment to the Purchaser by the Seller of
its right to purchase the Purchased But Not Funded
Debts), will have good and marketable title to the
Purchased But Not Funded Debts and will be fully
subrogated in the rights of the original creditor in
respect of the Purchased But Not Funded Debts. All
amounts and information contained in Schedule
5.23(a)(iv) are true and accurate. The Purchased But Not
Funded Debts have been duly approved (admises) for their
entire amount by the Commercial Court of Douai and have
not been challenged (contestees). Attached to Schedule
5.23(a)(iv) hereto are true and complete copies of all
the transfer agreements entered into by the Seller with
respect to the Purchased But Not Funded Debts with the
applicable creditors.
(a)(v) Remaining Debts.
Attached in Schedule 5.23(a)(v) hereto is a true and
complete list of each creditor of the Companies subject
to the Plans whose debts (the "Remaining Debts") are not
included in the Trade Debts, the 1998 Debts and the
Purchased But Not Funded Debts and for each such
creditor (i) its name, (ii) its category (intercompany,
bank, supplier or public authority), (iii) the repayment
option applicable under the Plans, (iv) the principal
amount payable (plus applicable interest rate if any) by
the Companies to such creditor under the Plans, (v) any
payment made to such creditor by the Companies and the
date of such payment as well as any payment due which is
to be made, (vi) any adjustment approved by the
Commercial Court of Douai on the amount payable by the
Companies to such creditor, (vii) the current balance of
the amount payable by the Companies to such creditor,
(viii) the next payment due
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and the date thereof. All amounts and information contained in Schedule
5.23(a)(v) are true and accurate.
5.24 AUDIT INFORMATION
The Seller represents that the Audit Information, other than the
Financial Statements, is true, correct and not misleading. The Seller
hereby confirms that no information has been withheld and that all
information which is known to the Seller (after appropriate inquiry of
the managers (cadres) of the Companies) and which may be material to a
purchaser for value of the shares of the Companies has been disclosed in
the Audit Information. Any such information which may be material to a
purchaser for value of the shares of the Companies arising on or before
the Closing Date will forthwith be disclosed in writing to the
Purchaser.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to the Seller as follows:
6.1 ORGANIZATION
Purchaser is a corporation in the process of being formed under the laws
of France and has all requisite corporate power and authority to enter
into this Agreement and to perform its obligations hereunder.
6.2 AUTHORIZATION AND VALIDITY
The execution and delivery of this Agreement by the Purchaser and the
performance by Purchaser of the transactions contemplated herein have
been duly authorized by all corporate actions on behalf of the
Purchaser. This Agreement has been duly executed and delivered by
Purchaser and, assuming the due authorization, execution and delivery of
this Agreement by the Seller, constitutes a valid and binding obligation
of the Purchaser, enforceable against it in accordance with its terms.
Except for the consent of the Commercial Court of Douai, no consent of
any third party (whether governmental or otherwise) is required by the
Purchaser to consummate the transactions contemplated by this Agreement.
6.3 NO CONFLICT OR VIOLATION
Neither the execution of this Agreement nor the performance of the
transactions contemplated herein will (i) violate or conflict with the
statuts of the Purchaser or (ii) violate or constitute a default under
any material contract to which the Purchaser is a party or by which its
assets or property are bound or any law or any order, judgment or rule
of any governmental authority which is applicable to the Purchaser or
its assets or property.
6.4 BROKERS
All negotiations pertaining to the sale of the Shares and the agreements
relating to such sale have been carried on in such a manner that no
broker or other person acting on behalf of the
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Purchaser shall have a valid claim against the Seller for any broker's
fee or finder's fee or similar compensation.
ARTICLE VII
INDEMNIFICATION AGREEMENT
The Seller hereby undertakes to indemnify and hold harmless the Purchaser as set
forth below.
7.1 INDEMNIFICATION
(a) The parties agree that the Purchaser shall have no contractual
rights to indemnification after Closing for any representation
and warranty made by the Seller under any Section of Article V
of this Agreement which is not referred to in Section 7.1(b)(i)
or (ii).
(b) The Seller undertakes to indemnify the Purchaser against and
agrees to hold the Purchaser harmless from any and all damages,
losses, liabilities or claims (collectively "Damages") incurred
by the Companies and/or the Purchaser arising from:
(i) any violation, contravention or breach of any covenants
of the Seller set forth in Sections 4.3, 4.7 and 4.12 of
this Agreement; or
(ii) to the extent provided in Section 7.3 and 7.5 hereof,
any incorrectness in, or breach of, any representation
or warranty made by the Seller in Sections 5.1, 5.2,
5.3, 5.4, 5.6, 5.7, 5.8, 5.10, 5.11(c), 5.13, 5.15,
5.17, 5.18, 5.20(b), 5.22, 5.23 and 5.24, the Exhibits
and the Schedules annexed hereto in respect of such
Sections or in any certificate or other document
delivered or given pursuant to this Agreement.
7.2 CLAIM PROCEDURE
All claims by the Purchaser under this Article VII shall be asserted as
follows:
(a) in the event that (A) any claim, demand or proceeding is
asserted or instituted by any party other than the Purchaser
hereto which could give rise to Damages for which the Seller
would be liable to the Purchaser hereunder (such claim, demand
or proceeding, a "Third Party Claim"), or (B) the Purchaser
shall have a claim to be indemnified by the Seller which does
not involve a Third Party Claim, the Purchaser shall (x) in the
case of a Third Party Claim, within fifteen (15) days of the
Companies' receiving actual notice of such Third Party Claim
(unless failure to notify the Seller within such period would
not materially prejudice the Seller's interests, in which case,
the Purchaser shall with reasonable promptness), and (y) in the
case of any other claim, with reasonable promptness, send to the
Seller a written notice the nature of such claim or demand and
the amount or estimated amount (which estimate shall not be
conclusive of the final amount of such claim or demand) (a
"Claim Notice").
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(b) In the event of a Third Party Claim:
(i) the Seller shall have the right, if it so notifies the
Purchaser with sufficient promptness after the sending
of the Claim Notice in order not to compromise the
position of the Purchaser or the Companies, to defend
the action or to pursue the claim.
(ii) If the Seller has notified the Purchaser that it wishes
to defend the action or to pursue the Third Party Claim,
it will pursue the defense and claim reasonably and
prudently and be assisted by counsel reasonably
acceptable to the Purchaser. The Seller will regularly
inform the Purchaser of the progress of such defense or
such claim and, on request, shall provide it with all
information or documentation as is necessary to enable
it to consider the position. From and after the delivery
of a Claim Notice hereunder, at the reasonable request
of the Seller, the Purchaser shall grant the Seller and
its representatives reasonable access to the books,
records and properties of the Companies to the extent
related to the matters to which the Claim Notice
relates. The Seller will not, and shall require that its
representatives do not, use or disclose to any third
person other than its representatives (except in
connection with such Claim Notice) any information
obtained pursuant to this Section 7.2 which is
designated as confidential by the Purchaser. If the
Seller has notified the Purchaser that it will defend
the action or pursue the claim, the Seller shall bear
all costs and fees (including without limitation
attorney's fees and expenses) it shall incur in respect
of such defense or such claim.
(iii) If the Seller notifies the Purchaser that the Seller
does not wish to defend the action or pursue the claim
or fails to do so in accordance with Section 7.2(b)(i)
above, the Purchaser shall defend the action or pursue
the claim on its own and shall pursue the defense or
claim reasonably and prudently and be assisted by
counsel reasonably acceptable to the Seller; the Seller
shall bear all attorney's fees and expenses in respect
of such defense or such claim.
(iv) The Seller or the Purchaser, depending on which of them
defends the action or pursues the claim, shall allow the
other Party and its counsel to participate in the
elaboration of the arguments which may need to be put
forward and in the negotiations which may take place to
reach an out-of-court settlement, it being understood
that such other Party shall bear all fees and expenses
of such additional counsel.
(v) No compromise or settlement of a Third Party Claim shall
be made without the prior written consent of both the
Purchaser and the Seller, such consent not being
unreasonably refused or delayed.
(c) The liability of the Seller to the Purchaser in respect of
Damages resulting from a Third Party Claim shall be indemnified
pursuant to Section 7.1 regardless of which Party defends the
action or pursues the claim.
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(d) In the event of a claim between the Parties which does not
involve a Third Party Claim, the Party against which a
definitive judgment is rendered in connection with such claim
shall bear all costs and expenses of counsel of both Parties
incurred in connection with such claim.
7.3 LIMITATIONS ON RELEVANT CLAIMS
(a) No claim for indemnification under Section 7.1(b)(ii) (any such
claim, a "Relevant Claim") may be made by the Purchaser against
the Seller, and no payment in respect thereof shall be required,
unless and only to the extent that:
(i) the amount of Damages in respect of which the Seller is
obligated to indemnify the Purchaser in respect of any
such Relevant Claim exceeds FF 200,000 (the "Minimum
Claim Amount") (it being understood that if the amount
of such Damages shall exceed FF 200,000, the Seller's
obligation to indemnify the Purchaser shall extend to
the entire amount of such Damages, including the amount
up to FF 200,000 subject however to clause (ii) below),
and
(ii) the cumulative and aggregate amount of all Damages in
respect of which the Seller is obligated to indemnify
the Purchaser under Section 7.3(a)(i) shall exceed the
sum of FF 2,000,000 in the aggregate (it being
understood that if the amount of such Damages shall
exceed FF 2,000,000, the Seller's obligations to
indemnify the Purchaser shall extend to the entire
amount of such Damages, including the amount of FF
2,000,000);
provided, however, that for the purposes of Section
7.3(a)(i) above, in the event of a series of related
claims based on the same or a similar set of facts or
circumstances, the aggregate total of the Damages
resulting from such series of claims shall be used only
one time to determine whether the Minimum Claim Amount
has been exceeded, whether or not the Damages resulting
from an individual Relevant Claim would be less than the
Minimum Claim Amount.
(b) Notwithstanding any other provisions of this Agreement (but
subject to Section 7.3(f) hereof), the maximum amount of Damages
for which the Seller may be liable under this Agreement in
respect of Relevant Claims shall not exceed FF 90,000,000.
(c) Any Relevant Claims made under Section 5.7 hereof shall be
reduced by taking into account any loss carry-forwards available
to the Companies, provided that they do not relate to any
management fees paid by any of the Companies for any reason
whatsoever and provided further that they will be taken into
account for their full amount for the application of Sections
7.3(a)(i) and 7.3.(a)(ii) hereof but shall not be taken into
account for the application of Section 7.3. (b).
(d) Except for representations and warranties made and given under
Sections 5.1., 5.4., 5.7, 5.8, 5.18, 5.23 and 5.24 which are
essential for the Purchaser and for which the Seller represents
that they are true and accurate in all respects irrespective of
any
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information contained in the Audit Information, no Relevant
Claim may be made by the Purchaser against the Seller, and no
payment in respect thereof shall be required in respect of facts
contained in the Audit Information, provided that such facts are
clearly disclosed in the documents contained in the Audit
Information.
(e) Damages at the level of a subsidiary of Cofimeta will not be
counted a second time at the level of Cofimeta.
(f) Notwithstanding the provisions of Sections 7.3(a) and 7.3(b),
such Sections 7.3(a) and 7.3(b) shall not apply in the case of
claims made in respect of Section 5.4.
7.4 INDEMNITY PAYMENT
Subject to Section 7.8, any indemnity set forth in this Article VII will
(subject to the next paragraph) be due and payable by the Seller within
thirty days after the Purchaser has sent a Claim Notice, provided that,
in the event of a Third Party Claim, the indemnity will be due and
payable as soon as any Company is obligated to pay under the terms of
the contract, applicable legislation or of a judgment.
In the case of disagreement between the Parties hereto, the indemnity
will be due by the Seller as soon as the liability has (i) been agreed
in writing by the Parties or (ii) has been determined by a court
decision in accordance with Section 8.14 hereof and the judgment
provides for immediate execution.
Any payment of an indemnity hereunder shall give rise to an interest
charge computed at a rate of one month PIBOR plus 5% as from the later
of (i) 30 days after the date the Claim Notice was received by the
Seller or (ii) the date on which the Damages giving rise to the
indemnity was incurred.
7.5 SURVIVAL
(a) The representations and warranties of the parties hereto
contained in the Sections of this Agreement which are not
referred to in Sections 7.5(b)(i) or 7.5(b)(ii) below shall not
survive the Closing.
(b) The other representations and warranties of the parties hereto
contained in this Agreement or in any certificate or other
writing delivered pursuant hereto or in connection herewith
shall survive the Closing until:
(i) 36 months after the Closing or, if longer, the
expiration date of the statute of limitations, for any
indemnified liability with respect to the
representations and warranties contained in Sections
5.1, 5.4, 5.7, 5.8(a), 5.18, 5.23 and 5.24 hereof ; and
(ii) 15 months after the Closing Date for any indemnified
liability with respect to the representations and
warranties contained in Sections 5.2, 5.3, 5.6, 5.8(b),
5.10, 5.11(c), 5.13, 5.15, 5.17, 5.20 (b) and 5.22
hereof.
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(c) The covenants of the parties hereto contained in Sections 4.3,
4.7, and 4.12 and the agreements contained in Sections 7.7 and
7.8 of this Agreement shall survive until the fifth anniversary
of the Closing Date.
(d) The specific indemnity obligation of the Seller pursuant to
Section 7.6 shall survive the Closing until the expiration date
of the statute of limitations of the subject matter thereof.
7.6 SPECIFIC INDEMNITY
The Seller hereby indemnifies the Purchaser and the Companies against
and agrees to hold the Purchaser and the Companies harmless from any and
all action, claim, demand, cause of action, judgment, loss, liability or
commitment by or in respect of Arbel or PSB or any Affiliates thereof or
any personnel of Arbel or PSB or their Affiliates, including without
limitation in connection with the Arbel Debt, the repayment and/or the
setting off thereof pursuant to the debt transfer and set-off agreement
referred to in Section 3.1(vi) and/or any other payment by Arbel or its
Affiliates to the Companies and with the uncollectability of any
receivable due from Arbel or PSB or any of their Affiliates to any of
the Companies and/or with any transfer by Arbel and/or PSB of their
shares in Cofimeta to the Seller prior to or at the Closing; this
indemnity also includes, any damage, loss, liability and expenses
incurred by the Companies and/or the Purchaser (including attorney's
fees and expenses in connection with any action, suit or proceeding to
the same extent as provided in Section 7.2(b)) in connection with the
foregoing. None of the limitations set forth in Sections 7.3(a) and
7.3(b) shall apply to this Section.
7.7 GUARANTEE
The Seller hereby covenants to deliver to the Purchaser, within five
days of any notification of default sent to the Seller under the FF
275,000,000 Term Loan Agreement dated April 30, 1997, among the Seller
(as Borrower), Merrill Lynch International (as Arranger), Merrill Lynch
Capital Markets Bank Limited (as Original Lender), Bankers Trust Company
(as Agent) and Banque Arjil et Cie (as Arranger and Financial Adviser to
Borrower), a guarantee from a reputable French bank reasonably
acceptable to the Purchaser in a maximum amount of FF 90,000,000 in the
form of EXHIBIT XVIII in favor of Purchaser in order to secure the
Seller's obligations to the Purchaser.
7.8. OTHER GUARANTEES
As soon as possible following the sending of any Notice of Claim, the
Purchaser shall furnish to the Seller the information in its possession
(the "Information") which permitted the Purchaser to estimate the amount
of the indemnification claim. In connection with each such
indemnification claim, the Seller agrees to furnish to the Purchaser a
bank guarantee (the "Guarantee") from a reputable French bank in the
form of EXHIBIT XVIII mutatis mutandis in accordance with the following
procedure.
The Parties shall consult each other in order to establish by common
agreement the amount of such estimate, which will be the subject of the
Guarantee. In the absence of an agreement
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between the Parties on such estimate within fifteen Business Days of the
sending of the Information by the Purchaser, the Guarantee furnished
shall be in the amount of the estimate furnished by the Purchaser,
reduced by any payment by the Seller to the Purchaser in connection with
such indemnification claim. The Seller agrees in any event to furnish
the Guarantee within twenty Business Days from the sending of the
Information by the Purchaser. The total of the Guarantees pursuant to
this Section 7.8 and the guarantee issued pursuant to Section 7.7 shall
not exceed FF 90,000,000.
In the event of failure by the Seller to perform the obligations under
the foregoing clauses of this Section 7.8, the Purchaser shall not be
obligated to make the part of the Third Deferred Payment corresponding
to the amount of the Guarantee which shall not have been furnished by
the Seller pursuant to the foregoing clauses of this Section 7.8, as
long as the said Guarantee is not furnished to the Purchaser.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
8.1 AGREEMENT INTEGRATION
The present Agreement constitutes the entire agreement between the
Parties and their respective groups concerning the subject matter hereof
and supersedes all prior agreements, undertakings, negotiations,
discussions or representations of any kind whatsoever, whether oral or
written, of the Parties and their respective groups and the
representatives thereof. The present Agreement may not be modified
except by written agreement which carries a date subsequent to the date
of the present Agreement and is duly signed by the parties hereto.
Any and all information disclosed in any Schedule to this Agreement
other than Schedules 5.1(a), 5.1(c)(i), 5.1.(c)(ii), 5.1(d), 5.4(a),
5.4(c), 5.7, 5.8, 5.18(a), 5.18(b), 5.18(c) 5.23(a)(i), 5.23(a)(ii),
5.23(a)(iii) and 5.23(a)(iv), shall be deemed made and disclosed with
respect to each and every representation other than those contained in
Sections 5.1, 5.4, 5.7, 5.8, 5.18 and 5.23.
8.2 NOTICES
All notices and other communications given or made pursuant hereto shall
be in writing and shall be deemed to have been given or made if
delivered personally or sent by registered mail return receipt requested
or by telegram or by facsimile transmission confirmed by registered mail
return receipt requested to the parties at the following addresses:
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(a) If to the Seller: Groupe Valfond
100/102 rue de Villiers
92309 Levallois-Perret Cedex
France
Attention: President
Fax: 01 47 58 27 50
with a copy to: Stibbe Simont Monahan Duhot & Giroux
154 rue de l'Universite
75007 Paris
France
Attention: Christian Nouel, Esq.
Fax: 00 33 1 40 62 20 62
(b) If to the Purchaser: Oxford Automotive France
c/o Oxford Automotive, Inc.
2000 North Woodward Ave., Suite 130
Bloomfield Hills, Michigan, 48304-2254
USA
Attention: Vice Chairman
Fax: 00 1 248 540 7501
with a copy to: Salans Hertzfeld & Heilbronn
9, rue Boissy d'Anglas
75008 Paris, France
Attention: John G. Speers, Esq.
Fax: (33) 1.42.68.15.45
or to such other persons or at such other addresses as shall be furnished
by any party by like notice to the others. No change in any of such
addresses shall be effective insofar as notice under this Section 8.2 are
concerned unless notice of such changes shall have been given to such other
parties hereto as provided in this Section 8.2.
8.3 TERMINATION
(a) This Agreement may be terminated at any time prior to the
Closing:
(i) by either Party if the Closing shall not have been
consummated on or before January 15, 1999 and such
failure to consummate is not the result of a breach of
this Agreement by the terminating party or the failure
of the terminating party to fulfill a condition to
Closing; or
(ii) by either the Seller or the Purchaser if there shall be
any law that makes consummation of the transactions
contemplated hereby illegal or otherwise
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prohibited or if consummation of the transactions
contemplated hereby would violate any non
appealable final order, decree or judgment of any
court or governmental body having competent
jurisdiction.
The Party desiring to terminate this Agreement pursuant
to clauses 8.3(a) shall give notice to the other Party.
(b) Neither Party nor their respective groups shall have any
liability to the other as a result of termination of
this Agreement pursuant to this Section 8.3, except any
such liability resulting from a breach of a
representation, warranty or covenant by either Party
pursuant to this Agreement which is applicable to such
Party prior to Closing.
8.4 COSTS AND EXPENSES
Each party shall pay its own costs and expenses (including without
limitation any and all taxes, professional fees and expenses) in
relation to the negotiation, preparation, execution and carrying into
effect of this Agreement (whether or not the transactions contemplated
hereunder are consummated) and any other agreements relating to the sale
of the Shares and the Trade Debts (whether or not the transactions
contemplated hereunder are consummated), and shall not seek or be
entitled to reimbursement of any such costs and expenses from the other
party. In its capacity as selling shareholder, the Seller has borne all
costs and fees incurred in relation with the transactions contemplated
by this Agreement which would normally be borne by a selling shareholder
(including without limitation any and all fees and expenses of legal and
accounting advisers which are not acting for the Purchaser, fees and
expenses in connection with the renegotiation of the Renegotiated Debts
and any similar expenses). In the event that any of these costs or fees
have been paid by the Companies as from July 2, 1998, the Seller shall
reimburse the Companies without delay for any and all such amounts so
advanced by the Companies. The cost of all environmental studies
undertaken in connection with the transactions contemplated by this
Agreement shall be shared equally by the Seller and the Purchaser.
Notwithstanding the foregoing, any transfer or registration tax of any
kind required in connection with the consummation of the transactions
contemplated by this Agreement shall be borne by the Purchaser.
8.5 ASSIGNMENT; AMENDMENT
(a) Assignment. This Agreement may not be assigned by either
party hereto without the prior written consent of the
other party; provided, however, that this Agreement
(including one or more of the other agreements
contemplated hereby) may be assigned, in whole or in
part, by Purchaser without the prior written consent of
Seller to a majority-owned subsidiary of Purchaser
(including in the case of the purchase of the Trade
Debts, Cofimeta), provided that Purchaser shall continue
to be jointly and severally bound by all the obligations
hereunder as if such assignment had not occurred and
perform such obligations to the extent that such
subsidiary fails to do so. This Agreement shall be
binding upon, and, subject to the terms of
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the foregoing sentence, inure to the benefit of, the parties, their
successors, legal representatives and assigns.
(b) Amendments. Any assignment in violation of this Article<-1- 95>8.5 shall
be null and void. No alteration of, amendment to or waiver of any of the
provisions of the Agreement shall be binding on any of the Parties
unless it is written and executed by a duly authorized representative of
each of the Parties.
8.6 POST CLOSING COOPERATION
(a) Collection of Debts. As from the Closing Date, the Parties shall use
their best efforts to take, or cause to be taken, all such further
actions and to do, or cause to be done, all such additional things
necessary, proper or advisable consistent with all applicable Laws to
ensure that any sums due to the Companies by any customer and collected
by the Seller, Arbel, PSB or their Affiliates are remitted to the
Companies in question without delay. As from the Closing Date, any sums
due to the Companies and collected by the Seller, Arbel, PSB or their
Affiliates shall bear interest payable to the Companies and computed at
a rate of one month PIBOR plus three percent (3%) as from their date of
collection by the Seller, Arbel, PSB or their Affiliates through their
date of remittance to the Companies. In connection therewith, the
Purchaser and the Purchaser's accountants shall at all time have
reasonable access to the accounting and other records, and to the
personnel employed by or others working on behalf of the Seller, Arbel,
PSB or their Affiliates and to the work papers of the accountants
thereof in order to audit and verify that any and all amounts due to the
Companies and collected by the Seller Arbel, PSB or their Affiliates are
remitted to the Companies in compliance with the provisions of this
Section. In addition, the Seller shall upon Closing cause all customers
to be informed that all payments due to the Companies should be remitted
directly to the relevant Companies as from the Closing Date.
(b) Document, Data and Access. After the Closing, the Seller shall cause all
business, accounting, legal, financing, technical documents and
information or data pertaining to the Companies in its possession or in
the possession of Arbel, PSB or their Affiliates and which have not
already been delivered to the Purchaser or the Companies to be delivered
to the Purchaser or the Companies upon request of the Purchaser or the
Companies. In connection therewith, the Seller shall ensure that the
Purchaser and the Companies shall at all time have reasonable access to
the records of the Seller, Arbel, PSB and their Affiliates and to the
personnel employed by or others working on behalf of such companies to
obtain such information, documents or data.
8.7 PREAMBLE
The provisions contained in the Recitals hereto form an integral part of
this Agreement.
8.8 WAIVER
No refusal or delay on the part of one party to exercise its rights
under this Agreement shall be considered to be a waiver of such rights
or other rights in the future.
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8.9 CONFIDENTIALITY
During the period from the date hereof through the Closing Date (or in
the event of termination of this Agreement pursuant to Section 8.3, then
through April 15, 2000), the Parties (together with, in the case of the
Seller, Arbel, PSB and their Affiliates) and their respective advisers
shall maintain confidential the non public information communicated
between them in connection with this Agreement.
If any disclosure of such information is required by applicable Laws,
the Party required to make the disclosure will notify the other
immediately and the Parties will consult in good faith as to the steps
which may be taken to prevent or limit the effects of such disclosure.
Notwithstanding the foregoing, each Party will have the right to
disclose and any such information obtained by such Party in connection
herewith, in connection with its defense of its interests in any
litigation with the other Party under this Agreement.
8.10 STOCK EXCHANGE AUTHORITIES
Except as required by law or regulation in the U.S. or France, the
Parties agree that any announcement with respect to the transactions
contemplated in this Agreement shall be mutually agreed upon between the
Parties before issuance.
8.11 BOARD OF DIRECTORS OF COFIMETA
The Parties will consult as to whether it serves the interests of the
Companies to have a representative of the Seller sit on the Board of
Directors of Cofimeta as from Closing for a period to be determined; if
the Parties agree that it does, Valfond will nominate such a
representative acceptable to the Purchaser for that period.
8.12 VALIDITY
The terms and conditions of this Agreement reflect the intentions of the
Parties hereto in respect of the subject matter hereof. The invalidity,
illegality or unenforceability of any provision of this Agreement shall
not affect or impair the continuation in force of the remainder of this
Agreement. Furthermore, in lieu of any such invalid, illegal or
unenforceable term or provision, the Parties hereto intend that there
shall be added as a part of this Agreement a provision as similar in
terms to such invalid, illegal or unenforceable provision as may be
possible and be valid, legal and enforceable. Without limiting the
foregoing, if any covenants contained in this Agreement, or any part
thereof, is held to be invalid, illegal or unenforceable because of the
duration of such provision or the area covered thereby, the parties
agree that the court making such determination shall have the power to
reduce the duration and/or geographic area of such provision and, in its
reduced form, said provision shall then be valid, legal and enforceable.
8.13 LANGUAGE
This Agreement has been entered into in the French language, which is
the definitive version. An English version has been prepared for the
convenience of the Parties.
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8.14 GOVERNING LAW; LITIGATION
This Agreement shall be governed by French law.
All disagreement or difficulties arising between the parties relative to
the validity, interpretation or execution of the Agreement shall be
submitted to the commercial courts of Paris, France.
Signed in two originals
In Paris,
on [_____________]
THE SELLER THE PURCHASER
GROUPE VALFOND S.A. OXFORD AUTOMOTIVE FRANCE SAS
- ----------------------- -------------------------
By: Mr. Herve Guillaume By: Mr. Hubert Mauroy
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LIST OF EXHIBITS
EXHIBIT I: Ownership of Shares
EXHIBIT II: Plans and Judgments
EXHIBIT III: Form of the Guarantee by the Purchaser
EXHIBIT IV: Forms of promissory notes for the First, Second and Third Deferred
Payments
EXHIBIT V: Form of promissory notes for the unpaid principal of the Trade Debts
EXHIBIT A: Method of calculating the Purchased But Not Funded Debts Purchase
Price and the Purchased Remaining Debts Purchase Price
EXHIBIT VI: Form of Trade Debts transfer agreement
EXHIBIT VII: Closing Deliveries
EXHIBIT VIII: Seller's Certificate (Representations and warranties)
EXHIBIT IX: Resigning Persons
EXHIBIT X: Cofimeta Debt transfer and set-off agreement
EXHIBIT XI: Non-competition agreement forms
EXHIBIT XII: Amendments to the offices sub-lease agreements
EXHIBIT XIII: Form of representation letters
EXHIBIT XIV: Form of Waiver in respect of the Arbel management fees
EXHIBIT XV: Original approved budget for 1998
EXHIBIT XVI: Agenda of the shareholders' meetings
EXHIBIT XVII: Documents and information constituting the Audit Information
EXHIBIT XVIII: Form of the Guarantee by the Seller.
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