EXHIBIT 4.12
================================================================================
AGREEMENT FOR THE SALE AND PURCHASE OF SHARES IN
THE COMPANIES SAMMIC, S.A. AND SAMMIC LIMITED
Entered into between
of the one part,
ENODIS NEDERLAND BV, BERISFORD INDUSTRIAL HOLDINGS
LTD and ENODIS PLC
AND
of the other part
ASOCIACION KAISERI 99, S.L.
Madrid, 13 December 2.001
================================================================================
In Madrid, on 13 December 2001.
I
APPEAR
Of the one part,
Enodis Nederland BV, a company whose details, together with the person acting
for and on behalf of the company and the powers of that person, are shown in
Appendix A.
Berisford Industrial Holdings Ltd, a company whose details, together with the
person acting for and on behalf of the company and the powers of that person,
are shown in Appendix B.
Enodis Plc, a company whose details, together with the person acting for and on
behalf of the company and the powers of that person, are shown in Appendix C.
Of the other part,
ASOCIACION KAISERI 99, S.L., a company whose details, together with the person
acting for and on behalf of the company and the powers of that person, are shown
in Appendix D.
II
DEFINITIONS
For the purposes of this Agreement the terms which appear in Appendix E shall
have the meaning attributed to each of them in the said Appendix. Other terms
may be defined elsewhere in the Agreement.
The parties mutually acknowledge the fact that they have sufficient capacity to
execute this Agreement,
III
WHEREAS
I.- Sammic, S.A. is a Spanish public limited company [sociedad anonima] which
has its registered office at calle Atxubiaga, 14, Azpeitia (Guipuzcoa). It
was incorporated with the name of Berisford Espana, S.A. for an indefinite
length of time pursuant to a deed executed before the Madrid Notary Public
Mr Carlos Ruiz-Rivas Hernando on
-2-
23 June 1997, is registered in the Guipuzcoa Companies Registry in volume
1,648, sheet SS-12.852, folio 1, section 8, and is the holder of
Taxpayer's Identification Code n(0) A20597951. It has a share capital of
one thousand million pesetas (1,000,000,000 ptas.) divided into one
million registered shares with a nominal value of 1,000 ptas. each,
numbered 1 to 1,000,000 inclusive, which are fully paid up and belong to
the same class and series and which do not have any ancillary benefits
connected with their ownership.
II.- Enodis Nederland BV is the owner of all the Shares in Sammic, S.A., which
are free from any kind of charge or encumbrance and there is no retention
of a judicial or any other kind over them, nor are they subject to any
attachments. All the requirements of the law and the company's Articles
of Association in relation to their transfer have been complied with,
meaning that the transfer can take place without restriction as all the
Shares are fully and lawfully owned by Enodis Nederland BV. The
certificates which evidence ownership of the Shares in Sammic, S.A. are
identified in Appendix II.
III.- Berisford Industrial Holdings Ltd. is the owner of 27,400 preference
shares and 30 ordinary shares in Sammic Limited, which are free from any
kind of charge or encumbrance and there is no retention of a judicial or
any other kind over them, nor are they subject to any attachments. All
the requirements of the law and the company's Articles of Association in
relation to their transfer have been complied with, meaning that the
transfer can take place without restriction as all the Shares in Sammic
Limited are fully and lawfully owned by Berisford Industrial Holdings
Ltd. The certificates which evidence ownership of the Shares in Sammic
Limited are identified in Appendix III. The other shares representing the
capital of Sammic Limited, other than the Shares in Sammic Limited (as
the said term is defined herein) are owned by Sammic, S.A.
IV.- Sammic, S.A. is the parent company of various Subsidiaries whose
identification details are shown in Appendix IV. Appendix IV also shows
the instruments by which the shares and/or interests in the Subsidiaries
were acquired. They are free from any kind of charge or encumbrance and
there is no retention of a judicial or any other kind over them, nor are
they subject to any attachments.
V.- The business of Sammic, S.A. and the Subsidiaries consists principally of
the manufacture and sale of sale of machinery, fittings and other
equipment for industrial catering use.
VI.- The Purchaser has conducted a review of the position of Sammic, S.A. and
the Subsidiaries ("Due diligence") pursuant to which no material
contingency was discovered which should have been reflected in the
Financial Statements, specially, nor having detected any failure to
comply with the Social Security obligations or voluntary additional
payments to Social Security benefits (contributions to pensions plans or
funds).
-3-
VII.- In order to fix and define the respective positions of the Vendors and
the Purchaser in relation to the Shares to be acquired pursuant to this
Agreement, the Parties have agreed to enter into this Agreement on the
basis of the following
IV
CLAUSES
Clause 1. Sale and purchase of the Shares
1.1 Sale and purchase
By this Agreement Enodis Nederland BV agrees to sells the Shares in
Sammic, S.A. to the Purchaser and the Purchaser agrees to purchases the
same, with everything which is incidental to and inherent in them, free
from charges, encumbrances, mortgages and liabilities.
By this Agreement Berisford Industrial Holdings Ltd. agrees to sells
the Shares in Sammic Limited to the Purchaser and the Purchaser agrees
to purchases the same, with everything which is incidental to and
inherent in them, free from charges, encumbrances, mortgages and
liabilities.
1.2 Purchase Price
The purchase price ("Purchase Price") of the Shares is as follows:
(i) 20,512,277.90 pounds sterling plus 419,253,912 pesetas for
all the Shares in Sammic, S.A., a price to be allocated
equally in all the Shares in Sammic, S.A.
(ii) 100,000 pounds sterling for the Shares in Sammic Limited,
that is to say, a price of one pound for each of the 27,400
preference shares of Sammic Limited that are owned by
Berisford Industrial Holdings Limited and 72,600 pounds
sterling for 30 ordinary shares of Sammic Limited that are
owned by Berisford Industrial Holdings Limited, that is,
2,420 pounds sterling for each of the ordinary shares.
1.3 Payment Mechanism
The price of the Shares is hereby paid in full in the following manner:
(i) As regards 20 million pounds sterling of the Purchase Price,
it is hereby to be paid its equivalent in Euros at the
Conversion Rate, that is, thirty two million two hundred and
six thousand one hundred and nineteen Euros and sixteen
cents (32,206,119.16) at the direction of the Vendors by
means of an irrevocable electronic transfer to:
National Westminster Bank Plc, London
-4-
Swift Code: NWBKGB2L
Further credit to:
National Westminster Bank Plc
Great Yarmouth Branch
Sort Code: 55-81-45
For the account of: Enodis Plc
Account number: 06118550
(ii) As regards the remaining amount of 612,277.90 pounds
sterling and 419,253,912 pesetas of the Purchase Price by
express indication of Enodis Nederland BV, it will be
paid by the Purchaser to the following persons and in the
following amounts in settlement of debts maintained to
date by Companies of the Enodis Group:
- To Sammic, S.A. an amount of 419,253,912 pesetas in
settlement of the debt maintained by Enodis Plc
against Sammic, S.A. ;
- To Sammic Limited an amount of 480,630.60 pounds
sterling in settlement of the debt maintained by
Enodis Plc against Sammic Limited;
- To Sammic Limited an amount of 131,647.30 pounds
sterling in settlement of the debt maintained by
Viscount Catering Limited against Sammic Limited.
The payment mechanism set out in this paragraph (ii) of
this Clause 1.3 has been expressly accepted by Sammic,
S.A. and Sammic Limited as constituting full and final
settlement for Enodis Plc. (for the case of Sammic, S.A.)
and for Enodis Plc and Viscount Catering Limited (for the
case of Sammic Limited) as regards the mentioned
intercompany loans.
Clause 2. Other actions and commitments of the Parties
2. 1 Resignation of the directors of Sammic, S.A. and of the
Subsidiaries.
The Vendors hereby deliver to the Purchaser letters of
resignation, with the signatures authenticated by Notary Public,
from all the members of the administrative body of Sammic, S.A.
and of the Subsidiaries, save for those who belong to the
Management Team.
The Purchaser undertakes to hold General Meetings of Sammic, S.A.
and of its Subsidiaries on the date of execution of this
Agreement in order to accept the resignations submitted by the
members of the administrative body with the
-5-
approval of the management and to appoint the new members of the
administrative body. The approval of the management does not
constitute a reduction in or alteration to the liabilities and
obligations of the Vendors under this Agreement.
Likewise, the Purchaser undertakes to deliver to the Vendors the
letters of confirmation to be issued by Sammic, S.A. and by
Sammic Limited in the agreed form pursuant to which they will
confirm that the debts that have been satisfied in accordance
with Paragraph (ii) of Clause 1.3 of this Agreement.
2.2 Commercial Debts
On the date of execution of this Agreement all the outstanding
Commercial Debts owed by Parties Connected with the Vendors to
Sammic, S.A. have been paid. In the case of the Commercial Loans
of Sammic, S.A. and/or any of the Subsidiaries to Parties
Connected with the Vendors and which at the date hereof have not
yet become due and payable, which are the loans specified in
Appendix 2.2, the Vendors expressly undertake that the said debts
will be duly paid on their respective due dates, in the ordinary
course of business.
The Parties expressly state that at the present time there are no
other loans or debts between Sammic, S.A. and/or the Subsidiaries
(on the one hand) and any Party Connected with the Vendors (on
the other hand) whether of a commercial nature or any other
nature, save for those referred to in the aforementioned Appendix
2.2.
2.3 Documentation of Sammic, S.A. and the Subsidiaries
The Vendors deliver to the Purchaser upon receipt of the Purchase
Price, all the official books, notarised deeds, authorisations or
administrative resolutions and other documentation of Sammic,
S.A. and the subsidiaries in its power or held to its order at
the date of business execution of the Agreement.
Clause 3. Liability of the Vendors
Scope of liability
3.1 Subject to each of the limitations contemplated in this
Agreement, the Vendors are jointly and severally liable to the
Purchaser for any financial losses which are actually caused to
the Purchaser, the Company and/or the Subsidiaries and which
arise out of facts which arose or existed prior to the date of
execution of this Agreement and which result from:
-6-
(i) The lack of veracity of the information contained in the
Financial Statements as at 30 September 2001 which are attached
as Appendix 3.1 or the existence of encumbrances over assets or
guarantees provided which are not reflected in the books;
(ii) The occurrence of any event, the performance of any action or
the assumption of any commitment which is outside the ordinary
course of business between the closing date of the Financial
Statements and the date of execution of this Agreement in the
context of the Company and/or any of the Subsidiaries.
(iii) A failure on the part of the Company and/or any of the
Subsidiaries to comply with their obligations arisen from the
law as from 1 January 1998 and the date of execution of this
Agreement.
3.2 It is expressly understood that there may only be a liability on the
Vendors in the terms of this Agreement if there is a certain financial
loss determined in a court judgement or arbitration award or expressly
accepted by the Vendors, which means that the mere detection by the
Purchaser or by a third party of a potential liability, even if it is
derived from any of the circumstances referred to in the previous
subparagraph, shall not give rise to a situation of liability.
3.3 In relation to the lease (the "Lease") dated 19 June 1995 between
Market Harborough (Valley Way) Estates Limited and Sammic Limited of
the premises known as Unit B4 The Welland Industrial Estate, Market
Harborough, Leicestershire, UK (the "Premises") it is hereby agreed
between the Parties that:
(i) Assignment of the Lease is conditional on the grant of consent
(the "Licence") by the Landlord under the Lease (the
"Landlord"). Berisford Industrial Holdings Ltd, on behalf of
the Purchaser, shall use all reasonable endeavours to obtain
the Licence including payment of the Landlord's and its
solicitor's reasonable costs in connection with the Licence
and will keep the Purchaser fully informed at all times of
the progress of each application for a Licence and will
promptly supply the Purchaser with copies of all
correspondence or attendance or meeting notes in relation to
the application for a Licence if the Purchaser so requests.
(ii) The Purchaser shall give to Berisford Industrial Holdings Ltd,
all reasonable assistance in compliance with the terms of the
Lease.
(iii) If reasonably so required by the Landlord (having regard to the
provisions of the relevant Lease and Section 19(1) of the
Landlord and Tenant Act 1927), Berisford Industrial Holdings Ltd
shall promptly execute the Licence, consent or other deed in
order to give to the Landlord a direct covenant by Berisford
Industrial Holdings Ltd to pay any rent reserved by,
-7-
and to perform and observe any other obligation on the part
of the tenant contained in the Lease. Berisford Industrial
Holdings Ltd agrees that it shall provide or cause to be
provided such security as may be reasonably required by the
Landlord (having regard as aforesaid) in order to secure
performance of any covenant on the part of Berisford
Industrial Holdings Ltd to pay any rent reserved by, or to
perform and observe any other obligation on the part of the
tenant contained in the Lease provided that Berisford
Industrial Holdings Ltd will not be obliged to provide
personal director's guarantees or a rental deposit for a sum
greater than six months rent, but for the avoidance of doubt
will provide a guarantor from within Berisford Industrial
Holdings Ltd group if required by the Landlord pursuant to
the terms of the Lease.
(iv) Berisford Industrial Holdings Ltd shall procure that Berisford
Industrial Holdings Ltd's solicitors shall as soon as
practicable following the grant of the Licence notify the
Purchaser's solicitors of such grant and shall deliver to the
Purchaser's solicitors a copy of the Licence after receipt of
the duly executed and completed Licence.
(v) If the Licence is not granted within the period of six calendar
months after the Completion Date, or if, during that period,
the Landlord gives to the Purchaser notice in writing that the
Landlord refuses to grant the Licence (whether the Landlord has
reasonable grounds for such refusal or not or whether the
Landlord proposes placing any pre-condition on the grant of the
Licence or any condition in it which, in either case, Berisford
Industrial Holdings Ltd finds unacceptable) then Berisford
Industrial Holdings Ltd may at its own expense apply to the
Landlord for its consent to an underlease ("Licence to
Underlet") to Berisford Industrial Holdings Ltd for a term
equal to the residue of the term of the Lease in which case the
expression "Licence" shall be deemed to include the consent
sought by such application;
(vi) If Licence to Underlet is not obtained within 12 months after
the date of application Berisford Industrial Holdings Ltd shall
be entitled (but not obliged) by written notice to the
Purchaser to procure the Purchaser to grant an Underlease on
the terms set out in Clause 3.3 (v) notwithstanding the fact
that the Licence has not been obtained.
(vii) the Vendors or any Connected Party shall from the Completion
Date until determination or expiry of the Lease in accordance
with its terms ("Determination") (or the date of assignment of
the Lease to the Vendors and Connected Parties (the
"Assignment")) be entitled to remain in the Premises and occupy
it as licensee of the Purchaser; and
(viii) Berisford Industrial Holdings Ltd shall, as from the Completion
Date until the earlier of Determination or Assignment, be
responsible for and indemnify the Purchaser against all costs,
claims or liabilities in relation
-8-
to the Premises including, the performance of all obligations
relating to the Premises, rents, rates, water rates, insurance
premiums and other outgoings of an annual or recurring nature
(apportioned on a day to day basis) and also for all charges,
gas and electricity and other services consumed at or supplied
to the Premises insofar as they relate to the period following
the Completion Date until the earlier of Determination or
Assignment.
(ix) Until the earlier of Determination or Assignment the Purchaser
shall manage and deal with the Premises in accordance with the
terms of the Lease and the generally accepted principles of good
estate management and undertakes to provide all reasonable
assistance to the Vendors in respect of all material matters in
relation to the Lease including but not limited to
Determination, Assignment, the making of applications to the
Landlord in respect of the management of the Premises or further
assignment or underletting to a third party.
(x) Any income or profit derived from the Premises and received by
the Purchaser after the Completion Date shall be paid to the
Vendors.
Limitations on liability
3.4 Given the fact that this transaction is a management buy-out, the
liability of the Vendors is expressly excluded in those circumstances
which derive from acts or omissions by any of the members of the
Management Team or the persons who were under their supervision which
were carried out on their own initiative, that is to say without
responding to instructions given or policies indicated by the
administrative body of Sammic, S.A. or the directors of companies in
the Enodis Group.
3.5 The liability of the Vendors shall continue in force for TWO (2)
years. All other liabilities shall become statute-barred TWO (2) years
after the date of execution of this Agreement unless such liability
would have a shorter prescription term foreseen by law.
A claim made within the time limits indicated and in accordance with
the procedure set out in the next clause shall mean that the duration
of the liability is extended until the resolution of the claim in
accordance with the terms of this Agreement.
3.6 Under no circumstances shall the Vendors be liable pursuant to this
Agreement for an amount of more than 20 million pounds sterling (or
its euro equivalent at the Commercial Rate).
3.7 Any financial loss where the individual amount involved is equal to or
less than three thousand euro (3,000) shall not give rise to
any liability.
-9-
3.8 The liability of the Vendors shall only be enforceable if the
financial loss actually suffered, whether as a result of one or a
number of contingencies (excluding in any event those contemplated in
subparagraph 3.4 above), exceeds the sum of three hundred thousand
euro (300,000). Where it does the liability shall only extend to the
amount which exceeds the sixty thousand euro (60,000).
3.9 In relation to the contributions to the pension plans existing in the
Company and/or the Subsidiaries, the Purchaser agrees that the Vendors
are not and will not be liable for:
- Any obligation to pay new contributions which has to be made
after the date of formalisation of this Agreement and that may be
necessary to assure that the beneficiary receives the defined
benefit or the defined contribution that has been guaranteed to
him following the pension plan;
- Any obligation that arises in connection with employees of the
Company or of any of the Subsidiaries that have been contracted
after the date of formalisation of this Agreement;
- Any obligation that arises in connection with current employees
of the Company or of any of the Subsidiaries which refers to the
time after formalisation of this Agreement, even if it is based
on the policies followed by the company and/or the Subsidiaries
regarding contribution to the pension plans.
It is understood that any eventual liability of the Vendors (different
from the excepted cases contemplated in this clause which do not
generate any liability) will be subject to all limitations provided
for in this Agreement.
Clause 4. Obligation of the Vendors to indemnify
4.1 In the cases of liability on the part of the Vendors which are
contemplated in clause 3 above and subject to the limits set out
therein, the Vendors shall be liable to indemnify the Purchaser. The
payment of the corresponding indemnity shall be made by the Vendors
directly to the Purchaser or, if the Purchaser so indicates, they
shall make the payments to the Company and/or the Subsidiaries and
this payment shall constitute a full release.
4.2 Without prejudice to the application of the limitations on liability
contemplated in clause 3 above, the amount of the compensation to be
paid by the Vendors shall total the amount of the financial loss
actually caused to the Company and/or the Subsidiaries and/or the
Purchaser.
4.3 The obligation on the Vendors to indemnify shall arise from the point
in time at which the financial loss is actually caused to the
Purchaser, the Company and/or the Subsidiaries.
-10-
For these purposes it is expressly stated that in cases where the
possible liability of the Vendors arises out of a claim made by a
third party against the Purchaser, against the Company or against any
of the Subsidiaries, the financial loss shall be deemed to have
actually occurred (and with it the obligation to indemnify to have
arisen) from the point in time at which:
(i) the claim of the third party is expressly admitted by the Vendors
or they decide - exercising their right of defence which is
contemplated in clause 5 below - to accept the claim, to withdraw
from the actions undertaken or not to make any appeal against the
administrative or judicial decisions which find in favour of the
third party's claim; or
(ii) a court judgement or arbitral award is issued which finds in
favour of the third party's claim. To the extent that the said
judgement or award is not binding, the Vendors may choose between
paying the corresponding indemnity or providing the Purchaser
with a bank guarantee for the amount of the said indemnity.
4.4 Any amount owed by one Party to the other pursuant to this Agreement
shall accrue default interest at the legal rate calculated annually
from the point in time at which it becomes due and payable in
accordance with the provisions of this Agreement without the need for
any demand for payment and shall be computed until the date on which
the sums owed are duly paid.
Clause 5. Notices and procedure
5.1 Claims between the Parties
In the event that either of the Parties has to make a claim against
the other pursuant to the provisions of this Agreement, the following
procedure shall be used:
(i) When either of the parties becomes aware of the existence of an
event which could result in the other incurring a liability
pursuant to the provisions of this Agreement, it shall give
notice thereof in writing, indicating the reasons and the amount
and sending with the notice all the documentation which it
possesses in relation to the fact or circumstance giving rise to
the alleged loss;
(ii) if the said claim is not expressly accepted by the other Party
within the thirty (30) calendar days following its notification,
the claim shall be deemed to have been rejected; and
(iii) in the event that the claim made is rejected, the dispute shall
be resolved in accordance with the provisions of Clause 15
hereof.
5.2 Claim by a third party
-11-
The following rules shall apply specifically to any claim by third
parties against the Purchaser, the Company or the Subsidiaries which
may give rise to the payment of an indemnity by the Vendors to the
Purchaser in accordance with the provisions of this Agreement:
(i) The Purchaser shall notify the Vendors of the claim received
immediately and diligently so that the Vendors can take the
appropriate decisions in order not to prejudice any actions
which may be appropriate in law or the rights which this
Agreement confers on the Vendors, if such actions are prejudiced
due to the failure to give notice as indicated, the Vendors
shall be released from the liability derived from this
Agreement.
(ii) The Vendors may elect to treat the claim as being their
responsibility and to appoint the professionals who are to deal
with the claims made. The representatives appointed by the
Vendors shall act pursuant to the powers of attorney required
for the purpose which shall be given by the company affected at
the appropriate time and in the appropriate manner, as required,
and they shall co-ordinate their actions with the Purchaser.
The Vendors shall instruct their representatives that when
exercising the right of defence to which they are entitled
pursuant to this clause, they must always take into account the
interest of the company affected by the claim.
It shall be understood that, insofar as the Vendors make use of
their right to defend themselves, according to the provisions
set forth herein, the Vendors may not oppose an exception
regarding their liability foreseen in Clause 3.4 above.
(iii) The Vendors shall have the power to require the Purchaser or the
company affected to file any appeals that in the opinion of the
Vendors and their lawyers, taking into account the opinion of
the representatives of the Company and/or the Subsidiaries, it
may be appropriate to make against administrative acts, court
judgements of any kind or, where appropriate, awards or orders
of arbitral tribunals.
(iv) All costs incurred as a result of the defence shall be assumed
and paid by the Vendors if the claim or action of the third
party is upheld wholly or in part or by the Company if it is
dismissed in full.
(v) In the event that the Vendors waive their right to exercise
their right of defence in writing, the Purchaser shall have the
right to take whatever action it considers appropriate.
Clause 6. Non-competition
Pursuant to the provisions of the law, regulations or legal proceedings, the
Vendors undertake during a period of one (1) year from the execution date of the
present Agreement
-12-
not to carry out, either directly or indirectly, and shall ensure that any
Related Party will not carry out during said period, any of the following
activities:
(i) to become owners, to manage, operate, control, hold a stake, as
an investor, manager or any other, to be employed by, to provide
consultancy services in relation to any of the manufacturing
activities and sale of machinery, installations and other
instruments for industrial catering use that are manufactured by
Sammic, S.A.'s business activities on the execution date of the
present Agreement in Spain and Portugal:
(ii) to employ or hire any person who, in a period of one year before
the execution of the present Agreement, has been an employee,
agent, consultant or any similar representative of the Company
and/or its Subsidiaries in Spain and Portugal.
Furthermore, and for an indefinite period of time, the Vendors shall maintain
strictly confidential all the information that they have received (whether
verbally or in written form) or to which they have had access regarding the
Company and/or its Subsidiaries, and they may not make use of said information
to carry out any activities in any of the sectors in which the Company and/or
its Subsidiaries has a presence, subject to legal and regulatory requirements.
The Purchaser undertakes for an identical period of one (1) year calculated from
the execution date of the present Agreement that Sammic, S.A. shall grant
Viscount Catering Limited the commercial status as privileged client.
Non-compliance by any of the Parties of the undertakings set forth herein shall
imply the imposing of sanctions established by the corresponding courts or
arbitration bodies, but for the cases in which the damage caused is higher than
one hundred thousand euros (100,000) a penal clause is agreed together with the
losses and damages caused, in accordance with the provisions of Article 1.153 of
the Spanish Civil Code, calculated at the amount of one million six hundred
thousand (1,600,000) euros, notwithstanding the capacity held by the
corresponding courts and arbitration bodies to amend said amount.
Clause 7. Additional undertaking
7.1. In addition to the obligations assumed by virtue of this Agreement, Enodis
Nederland BV secures the fulfilment of the obligations established in
clauses 2.2, 3.3, 6 and 14 for the Connected Parties that are direct or
indirect subsidiaries of Enodis Nederland BV.
7.2 Enodis plc. is the guarantor of the Connected Parties, other than those
referred to in paragraph 7.1, in relation to the fulfilment of the
obligations established in clauses 2.2, 3.3., 6 and 14.
7.3 Enodis Plc is the guarantor of Enodis Nederland BV in relation to the
obligations assumed by the latter by virtue of this Agreement, undertaking
to meet said obligations should Enodis Nederland BV not do so.
-13-
7.4 The rules set forth in the Spanish Civil Code regarding discussion,
division and order in favour of the guarantor shall be applicable to the
security deposits provided for in paragraphs 7.1, 7.2 and 7.3.
Clause 8. Non transfer undertaking
8.1 The Purchaser undertakes vis-a-vis the Vendors not to transfer or perform
any transaction by which an equal result could be reached, be it directly
or indirectly, pursuant to which a number of shares or indivisible quotas
thereof equal to or in excess of 25% of the Shares, will be transferred for
a price above that which is established in the present Agreement and within
a term of one year as from the date hereof.
8.2 Should the obligation established in the previous paragraph be violated,
the Vendors may claim from the Purchaser
(i) Should all the Shares be transferred, the payment of 77.7% of
the price received by the Purchaser as a result of the transfer
thereof, deducting the Price established in the Agreement;
(ii) Should 25% or more of the Shares be transferred, the payment of
(a) 50% of the price received by the Purchaser that can be
attributed due to each participation in the share capital
of the Purchaser to 3i Group plc. 3i Europartners IIIA LP
and 3i Europartners IIIB LP (or any other connected entity
to 3i (the "Connected Entity") to which any of these has
assigned its direct or indirect stake in the Purchaser),
deducting the result of applying the percentage of the
Shares effectively transferred and attributable to 3i
Group plc. 3i Europartners IIIA LP and 3i Europartners
IIIB LP (or any other Connected Entity to 3i to which any
of these has assigned its direct or indirect stake in the
Purchaser) at the Price established in this Agreement.
(b) 100% of the price received by the Purchaser attributable
to any other shareholder of the Purchaser, other than
amounts attributable at the date of this Agreement to 3i
Group plc 3i Europartners IIIA LP and 3i Europartners IIIB
LP (or any other Connected Entity to 3i to which any of
these has assigned its direct or indirect stake in the
Purchaser), deducting the result of applying the
percentage of the Shares effectively transferred and
attributable to said shareholder at the Price established
in this Agreement.
Clause 9. Transfer form and Tax-return form
9.1 At the date of execution of this Agreement Berisford Industrial Holdings
Limited shall deliver to the Purchaser or its nominee (i) a duly executed
transfer form in respect of the portion of Shares in Sammic Limited which
it owns and (ii) the share certificates for such shares.
-14-
9.2 Berisford Industrial Holdings Ltd shall have the responsibility for, and
the conduct of, preparing, submitting, negotiating and agreeing with the
relevant tax authorities, all outstanding tax computations and returns of
Sammic Limited for each accounting period up to and including that ending
on 30 September 2001 (the "Relevant Accounting Periods").
The Purchaser shall procure that Sammic Limited shall make such claims,
surrenders, disclaimers and elections or give such notice or consent or do
such other things as were taken into account in computing a provision for
tax in any accounts of the Relevant Accounting Periods and may reasonably
be directed by Berisford Industrial Holdings Ltd relating to the Relevant
Accounting Periods.
The Purchaser shall provide Berisford Industrial Holdings Ltd with such
information and assistance which Berisford Industrial Holdings Ltd may
reasonably require to prepare, submit and agree all tax computations,
documents or correspondence relating to the Relevant Accounting Periods.
Berisford Industrial Holdings Ltd and the Purchaser shall deliver to each
other copies of all correspondence sent to, or received from, any tax
authority relating to the tax computations for the Relevant Accounting
Periods, as the case may be, delivery to be effected promptly on despatch,
or as the case may be, receipt.
The Purchaser shall take such action (including signing and authorising
computations and returns) as is necessary or desirable to give effect to
this clause.
Clause 10 Notices
10.1 The Parties nominate and to the extent necessary appoint as their
representatives the individuals indicated in subparagraph 9.2 to represent
them for the purposes of all notices, negotiations and incidents which may
arise in the performance of this Agreement.
10.2 Any notice or communication which either of the Parties has to give to the
other Party by reason of this Agreement must be made in writing and sent by
urgent registered post with acknowledgement of receipt, carriage paid, to
the addresses indicated below. Any notice sent by fax, electronic mail or
other electronic means must be confirmed in writing in accordance with the
above provisions, making reference to the fax, electronic mail etc.
Any notice sent by any of the methods indicated above shall be deemed to
have been received when it is actually known about or five (5) days after
the date on which it was sent.
The Vendors: ENODIS NEDERLAND BV
Mr W. Van de Giessen
-15-
Heemraadssingel 261
3023 CE Rotterdam, The Netherlands
BERISFORD INDUSTRIAL HOLDINGS LIMITED
Mr David Hooper
Enodis PLC
Washington House
40-41 Conduit Street
London W1S 2YQ, United Kingdom
(a)
The Purchaser: ASOCIACION KAISERI 99, S.L.
To the attention of the Chairman of the Board
of Directors
Atxubiaga, 14
20730 Azpeitia - Guipuzcoa (Espana)
Fax: + 34 94 3150190
With copy to: 3i Europe plc Sucursal en Espana
To the attention of the Managing Director
C/ Ruiz y Alarcon, 12 - 2 (degrees) B
28014 - Madrid (Espana)
Fax: + 34 91 521 98 19
3i Group plc, 3i Europartners IIIA
LP and 3i Europartners IIIB LP.
91 Waterloo Road, London SE1 8XP, UK
For the attention of the Secretary of 3i
Group plc.
Fax: (44)(71) 928.00.58
-16-
(b)
ENODIS PLC
Mr David Hooper
Enodis PLC
Washington House
40-41 Conduit Street
London W1S 2YQ, United Kingdom
Clause 11. General clauses
11.1 The headings of the paragraphs and clauses of this Agreement are included
for ease of reference and do not form part of the Agreement.
11.2 This Agreement, its appendices and the agreements specifically referred to
in it constitute the entire agreement between the Parties hereto as at the
date of execution in relation to all matters which are dealt with herein
and any prior act or agreement has no further effect.
11.3 No time period, condition, warranty or representation other than those
contained in the Agreement and no amendment shall be binding, save where
made in writing and signed by the Party making it.
11.4 The illegality, invalidity or unenforceability of any of the clauses of
this Agreement shall not affect its efficacy provided that the rights or
obligations of the Purchaser or the Vendors which are derived herefrom are
not affected in a material way, with material meaning any action which
seriously harms the interests of either of the Parties in such a way that
it results in the lack of a proper defence or it falls on the very purpose
of the Agreement.
11.5 To the extent that in compliance with the provisions of this Agreement both
Parties agree any kind of statement, announcement or information in
general, the contents of the same, whether oral or in writing, may not be
used to attribute any meaning to the representations of the Parties nor to
construe the clauses of this Agreement, its Appendices or ancillary
documents or the intentions of the parties, nor to alter the true nature of
the relationship agreed.
Clause 12. Expenses and taxes
Each Party shall assume the expenses incurred by it.
Any taxes which may be derived from the sale and purchase of the Shares shall be
borne by the Parties in accordance with the law.
-17-
Clause 13. Governing law
This Agreement shall be governed by and construed and performed in accordance
with Spanish law.
Clause 14. Confidentiality
14.1 Confidentiality
Subject to the requirements of any law, regulation or judicial process, the
Parties and those connected with them must maintain strict confidentiality
in relation to the conditions laid down in this Agreement and the
information of which they become aware from the other Party and must
indemnify the said Party for any loss and damage caused by a breach of this
duty of confidentiality. Both Parties must authorise the contents of any
kind of announcement which they wish to make about this transaction.
14.2 Collaborators
Subject to the requirements of any law, regulation or judicial process,
Tthe Parties shall instruct their respective professionals, collaborators,
employees and individuals who have had knowledge of the transaction or know
about the operations and information which are considered confidential that
they must maintain strict confidentiality in respect of such information or
data and they shall be liable for any damage which a breach by such persons
may cause to the other Party.
Clause 15. Arbitration
In order to resolve any dispute which results from the construction and/or
performance of this Agreement, the Parties submit to an arbitration in law in
accordance with the provisions of the Private Law Arbitration Act [Ley de
Arbitraje de Derecho Privado] of 5 December 1988 under the rules of the Madrid
Civil and Commercial Arbitration Court [Corte Civil and Mercantil de Arbitraje
de Madrid]. The arbitration shall take place in Madrid and three arbitrators
shall be appointed. The parties agree to be bound by and to comply with the
arbitral award in all its terms.
And in witness of their approval the Parties sign this Agreement in one copy to
a single effect in the place and on the date first before written.
/s/ Jose Maria Fernandez-Daza
- -----------------------------
Mr Jose Maria Fernandez-Daza
as attorney for each of
Enodis Nederland BV, Berisford Industrial Holdings Ltd and Enodis Plc.
-18-
/s/ Francisco Javier Goenaga Aseguinolaza
- -----------------------------------------
Mr. Francisco Javier Goenaga Aseguinolaza
for and on behalf of
ASOCIACION KAISERI 99, S.L.
-19-
ANNEX A TO THE SALE AND PURCHASE AGREEMENT FOR COMPANY SHARES
IN SAMMIC, S.A. AND SAMMIC LIMITED
Identification details of the company ENODIS NEDERLAND BV
Enodis Nederland BV, a Dutch company, with registered address at Heemraadssingel
261, 3023 CE Rotterdam (The Netherlands) and registered at the Chamber of
Commerce and Industry of Rotterdam under number 27116495.
Is hereby represented by Mr Jose Maria Fernandez-Daza Alvear, of legal age,
married, with business address at Paseo de la Castellana 110, 28046 Madrid and
holding Spanish Identity Card 8.489.693-H, acting as Attorney, as recorded in a
power of attorney executed before Mr M.H.J. Veldhuis, Notary Public in Rotterdam
(The Netherlands), on 5 December 2001.
-20-
ANNEX B TO THE SALE AND PURCHASE AGREEMENT FOR COMPANY SHARES
IN SAMMIC, S.A. AND SAMMIC LIMITED
Identification details of the company Berisford Industrial Holdings Limited
Berisford Industrial Holdings Limited, a British company, with registered
address at Washington House, 40-41 Conduit Street, London W1S 2YQ (England) and
registered at the Company Registry Office for England and Wales under number
2887689.
Is hereby represented by Mr Jose Maria Fernandez-Daza Alvear, of legal age,
married, with business address at Paseo de la Castellana 110, 28046 Madrid and
holding Spanish Identity Card 8.489.693-H, acting as Attorney, as recorded in a
power of attorney executed before Mr James Kerr Milligan, Notary Public in
London (England) on 4 December 2001.
-21-
ANNEX C TO THE SALE AND PURCHASE AGREEMENT FOR COMPANY SHARES
IN SAMMIC, S.A. AND SAMMIC LIMITED
Identification details of the company Enodis Plc
Enodis Plc, a British company, with registered address at Washington House,
40-41 Conduit Street, London W1S 2YQ (England) and registered at the Company
Registry Office for England and Wales under number 109849.
Is hereby represented by Mr Jose Maria Fernandez-Daza Alvear, of legal age,
married, with business address at Paseo de la Castellana 110, 28046 Madrid and
holding Spanish Identity Card 8.489.693-H, acting as Attorney, as recorded in a
power of attorney executed before Mr James Kerr Milligan, Notary Public in
London (England) on 6 December 2001.
-22-
ANNEX D TO THE ACQUISITION AGREEMENT
Identification data for the company ASOCIACION KAISERI 99, S.L.
The company ASOCIACION KAISERI 99, S.L., with registered address in San
Sebastian, at Calle Avenida de la Libertad, number 20, 2A, incorporated for an
indefinite term by means of a deed authorised by Mr Eduardo Ares de Parga
Saldias, Notary Public in Bilbao, on 14 November 2001, under number 2,793 of his
official records, and which is pending recording in the Mercantile Registry of
Guipuzcoa.
Said company acts through its representative, Mr Jose Maria Pena Neira, of legal
age, married, resident of Azpeitia (Guipuzcoa), with address at Calle Atxubiaga,
number 13, and bearer of Spanish National Identity Document number 16.036.301-B,
acting in his capacity as attorney, pursuant to a deed authorised on 10 December
2001 by Mr Eduardo Ares de Parga Saldias, Notary Public in Bilbao, under number
3,072 of his official records.
-23-
ANNEX E TO THE ACQUISITION AGREEMENT
DEFINITIONS
Shares Means the Shares in Sammic, S.A and the Shares in
Sammic Limited jointly
Shares in Sammic Limited Means the 30 ordinary shares and 27,400 preference
shares in the English company Sammic Limited, a
company incorporated in England under number
02765706, which are identified in Appendix III.
Shares in Sammic, S.A. Means all of the shares in Sammic, S.A. owned by
Enodis Nederland BV, which are identified in
Appendix II.
Appendices Means the appendices which are attached to this
document as an integral part of the Agreement.
Purchaser Means ASOCIACION KAISERI 99, S.L.
Agreement Means this agreement, its Appendices.
Management Team Means the group made up of the directors Messrs
Xabier Goenaga Aseguinolaza, Jose Maria Pena Neira,
Jon Markina Iriarte and Tomas Alcorta Echenique.
Financial Statements Means the balance sheet and profit and loss account
of the Sammic, S.A. as at 30 September 2001,
individual and consolidated as well as the balance
sheet and profit and loss account of the
Subsidiaries individually considered.
Subsidiaries Means "Sammic Limited (UK)", "Sammic, SRL" (Italy),
"Sammic, SARL" (France), and Sammic Equipamientos de
Hotelaria, Lda" (Portugal) together.
Party Means one of the Parties to the Agreement.
Connected Party/Party Means the Vendors and any entity belonging to the
same group in accordance with the definition in
article
-24-
Connected 4 of Law 24/1988 of 28 July 1988, the Stock Market Act
[Ley del Mercado de Valores].
Company Means Sammic, S.A., Company of Spanish nationality,
which has its registered office at calle Atxubiaga, 14,
Azpeitia, (Guipuzcoa) and which was incorporated with
the name of Berisford Espana, S.A. for an indefinite
length of time pursuant to a deed notarised by the
Madrid Notary Public Mr Carlos Ruiz-Rivas Hernando,on
23 June 1987. It is registered in the Guipuzcoa
Companies Registry in volume 1,648, sheet SS-12.852,
folio 1, section 8 and is the holder of Taxpayer's
Identification Code n(degrees) A20597951.
Commercial debts Means intra group trading balances (purchase/sell of
goods) that have reached their due date.
Commercial loan Means intra group trading balances (purchase/sell of
goods where normal payment date is in the future).
Conversion rate Means the Sterling/Euro exchange rate fixed at or about
2.15 pm (Continental European Time) by the European
Central Bank on the second Business Day prior to the
date of Completion or, if there is no such fixing on the
relevant day, the rate at or about 2.00 pm (London Time)
on such day as determined by the Bank of England.
Business Day Means a day on which banks in London and Madrid are
open for the transaction of normal business.
Connected Entity Means any entity obtaining to the same group in
accordance with the definition in article 4 of Law
24/1988 of 28 July 1988, the Stock Market Act.
Vendors Means Enodis Nederland BV and Berisford Industrial
Holdings Ltd., each in respect of the Shares which it is
transferring.
ANNEX II TO THE ACQUISITION AGREEMENT
Title deeds corresponding to the shares in SAMMIC, S.A., Sociedad Unipersonal
-25-
ENODIS NEDERLAND, B.V. (formerly BERISFORD NEDERLAND, B.V.) is the holder of one
million (1,000,000) shares in Sammic, S.A., numbered 1 to 1,000,000, inclusive.
The ownership deeds for the aforementioned shares are:
. Deed of incorporation of the Company authorised on 23 June 1997 by Mr
Carlos Ruiz-Rivas Hernando, Notary Public in Madrid, under number 1,752 of
his official records.
. Deed for an increase in share capital in the Company authorised on 28
January 1998 by Mr Aquiles Paternottre Suarez, Notary Public in San
Sebastian, under number 295 of his official records.
. Deed of a merger by absorption authorised on 10 December 1997 before Mr
Aquiles Paternottre Suarez, Notary Public in San Sebastian, under number
3,476 of his official records.
-26-
ANNEX III TO THE ACQUISITION AGREEMENT
Title deeds corresponding to the shares in SAMMIC LIMITED
BERISFORD INDUSTRIAL HOLDINGS LIMITED is the holder of 27,400 preference shares
in Sammic Limited. The title deeds for said preference shares are as follows:
. Transfer form for 27,400 preference shares in favour of Berisford
Industrial Holdings Limited. The ownership of said preference shares is
reflected in two certificates in which status as holder of 13,700
preference shares, each with a face value of 1 pound sterling, is set forth
in each one of the certificates.
. Two transfer forms for 15 ordinary shares each in favour of Berisford
Industrial Holdings Limited dated 28 November 1997.
-27-