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EXHIBIT 10(a)
On behalf of Myers Industries, Inc., the undersigned hereby certifies that the
following Exhibit 10(a) is a fair and accurate English translation of the
Protocole between Myers Industries, Inc. and Allibert Holding, SA, SEDITEP, SA,
Sauvagnat Allibert, SA, Allibert Transport und Lagertechnik GmbH and Sommer
Allibert, SA.
Myers Industries, Inc.
Dated: December 17, 1998 By: /s/ Gregory J. Stodnick
--------------------------------------
Gregory J. Stodnick, Vice President -
Finance
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AGREEMENT
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BETWEEN THE UNDERSIGNED:
Myers Industries, Inc., a company organized under the law of the State of Ohio,
U.S.A., whose registered office is at 1293 South Main Street, Akron, Ohio,
United States of America.
Represented by Mr. Stephen E. Myers, in its capacity of Chief Executive Officer,
specially delegated pursuant to a resolution of the Board of Directors dated
September 28, 1998, fully empowered for the purposes hereof,
Hereinafter referred to as the "Purchaser,"
Of the first part,
ALLIBERT HOLDING, a societe anonyme with a capital of FRF 107,261,500, whose
registered office is at 2 rue de l'Egalite, 92748 Nanterre Cedex - SIREN 722 055
571 - R.C.S. Nanterre,
Represented by Mr. Michel Cognet, fully empowered pursuant to a power of
attorney dated December 1, 1998 signed by Mr. Marc Assa, Chairman of the Board
of Directors, the latter being specially delegated for the purposes hereof
pursuant to a resolution of the Board of Directors dated October 1, 1998.
SEDITEP, a societe anonyme with a capital of FRF 35,700,000, whose registered
office is at 3 rue Montesquieu, 92748 Nanterre Cedex - SIREN - 722 016 508 -
R.C.S. Nanterre,
Represented by Mr. Philippe Chaubeau, Chairman of the Board of Directors,
SAUVAGNAT ALLIBERT, a societe anonyme with a capital of FRF 100,000,000, whose
registered office is at 2 rue de l'Egalite, 92748 Nanterre Cedex - SIREN - 352
849 210 - R.C.S. Nanterre,
Represented by Mr. Michel Cognet, fully empowered pursuant to a power of
attorney dated December 1, 1998 signed by Mr. Marc Assa, Chairman of the Board
of Directors, the latter being specially delegated for the purposes hereof
pursuant to a resolution of the Board of Directors dated September 23, 1998.
ALLIBERT TRANSPORT UND LAGERTECHNIK GmbH, a company organized under German law
with a capital of DEM 14,000,000, whose registered office is at Friesstrae 26 -
60388 Francfort am Main, registered with the Francfort am Main Trade Registry
under the number HRB 46.079,
Represented by Mr. Ph. Chaubeau, pursuant to a the notarized power of attorney,
dated November 5, 1998, granted by Mr. J. Kaziur, Managing Director,
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hereinafter referred to collectively by the single term the "Sellers,"
of the second part,
SOMMER ALLIBERT, a societe anonyme with a capital of FRF 107,624,250, whose
registered office is at 2 rue de l'Egalite, 92748 Nanterre Cedex - SIREN 542 050
562 - R.C.S. Nanterre,
Represented by Mr. Michel Cognet, Directeur General, specially delegated for the
purposes hereof pursuant to a resolution of the Supervisory Board (Conseil de
Surveillance) dated September 25, 1998,
hereinafter referred to as "SOMMER ALLIBERT,"
of the third part,
AND:
ALLIBERT EQUIPEMENT US, INC. a company organized under the laws of the State of
Delaware, USA, whose registered office is c/o The Prentice-Hall Corporation
System, Inc., 1013 Center Road, Wilmington, Delaware 19805, RC State of Delaware
No. 2409931,
Represented by Mr. Michel Cognet, Vice President, specially delegated pursuant
to a resolution of the Board of Directors dated November 24, 1998, fully
empowered for the purposes hereof,
hereafter referred to as "AE U.S.,"
of the fourth part,
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WITNESSETH:
PREAMBLE
I/ ALLIBERT HOLDING, SEDITEP, ALLIBERT Transport und Lagertechnik GmbH
currently operate:
- - in the European Union, through the companies:
- ALLIBERT EQUIPEMENT, a Societe Anonyme,
Registered office:
2 rue de l'Egalite, 92748 Nanterre
352 849 160 RCS Nanterre (89B05888) - SIRET 352 849 160 00010
Share Capital: FRF 85,000,000 divided into 850,000 shares of
FRF 100
- ATMP, a Societe Anonyme,
Registered office:
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Les Courtils de Sauxcelles, 91860 Prunay sur Essonne
785 233 339 RCS Evry (72B00168) - SIRET 785 233 339 00015
Share Capital: FRF 3,000,000 divided into 10,000 shares of
FRF 300
- SCI de la Plaine, a (Societe Civile Immobiliere organized
under French law)
Registered office:
------------------
3 rue de Montesquieu, 92748 Nanterre
Share Capital: FRF 200,000 divided into 2,000 shares of
FRF 100
- ALLIBERT EQUIPEMENT Sprl (company organized under Belgian
law),
Registered office:
------------------
Rue du Commerce, 12, Boite 8 Zoning Industriel B, 1400
Nivelles
RC Nivelles No. 83135
Share Capital: BEF 20,000,000 divided into 20,000 shares of
BEF 1,000
- ALLIBERT MANUTENCION S.A. (company organized under Spanish
law),
Registered office:
------------------
Cami Reial, 8 Poligono Industrial Riera de Caldes, 08184
Palau de Plegamans
RC Barcelona Tomo 4223, Libro 3559, Seccion 2(degree), Folio
197, Hoja 44716
Share Capital: ESP 162,000,000 divided into 162,000 shares of
ESP 1,000
- SOMMER ALLIBERT UK Ltd (company organized under British law),
whose name is in
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the process of being changed to ALLIBERT HANDLING,
Registered office:
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Berry Hill-Industrial Estate-Droitwich, (Worcestershire) WR9
9AB, RC 945.934
Plant:
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Cattle Market-St Oswald's Road-Gloucester GLI 2UG
Share Capital: GBP 1,450,000 divided into 1,450,000 shares of
GBP 1.00
- ALLIBERT TRANSPORT UND LAGERTECHNIK VERWALTUNG-SGESELLSCHAFT
mbH (company organized under German law),
Registered office:
Sudring 1-5, D-63165 Muhlheim
Share Capital: DEM 50,000
R.C. Offenbach-a-Main n(degree)5HRB 10.833
- ALLIBERT TRANSPORT UND LAGERTECHNIK GmbH & CO. KG (company
organized under German law),
Registered office:
Sudring 1-5, D-63165 Muhlheim
Share Capital: DEM 2,500,000
In the process of being constituted and will be registered
with the R.C. of Offenbach-a-Main
- ALLIBERT TRANSPORT UND LAGERTECHNIK GmbH (company organized
under Austrian law),
Registered office:
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Rottenhauserstrasse, 8, A-3250 Wieselburg
RC Amtsgericht Offenbach No. HRB 10183
Share Capital: ATS 500,000 divided into 500 shares of ATS 100
- ALLIBERT CONTENITORI (company organized under Italian law)
Registered office:
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Via Mascheroni, 29, 20145 Milan
RC Milan 333390/1993, Prima Strada No. 2, Interporto Sito,
10043 Orbassano
Share Capital: ITL 200,000,000 divided into 400,000 shares of
ITL 500
- ALLIBERT CONTENTORES (company organized under Portuguese law),
Registered office:
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Travessa Dr Carlos Felgueiras 34, 1 Freguesia da Maia Concelho
da Maia Distuto do Porto RC Porto No. 1298
Rua do Outeiro, 1024, Zona Industrial Maia I, Sector I, No.
145, Lote 324 Gemunde, 4470 Maia
Share Capital: PTE 13,000,000 divided into 13,000 shares of
PTE 1,000
- - in North America, through the following companies:
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- ALLIBERT EQUIPEMENT US INC. (company organized under the laws
of the State of Delaware, USA)
Registered office:
------------------
c/o The Prentice-Hall Corporation System, Inc., 1013 Center
Road, Wilmington, Delaware 19805, USA
RC State of Delaware No. 2409931
Share Capital: USD 1,000 divided into 100 shares of USD 10
- ALLIBERT CONTICO LLC (a " limited liability company "
organized under the laws of the State of Missouri, USA),
Registered office:
------------------
305 Rock Industrial Park Drive, Bridgeton, MO 63044, USA
Plant:
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2727 N. Partnership Blvd - Springfield, MO 65803
- ALLIBERT INDUSTRIE LIMITEE (company organized under the laws
of the Province of Quebec, Canada),
Registered office:
------------------
615 Ouest, Bd R.-Levesque, Bureau 1010, Montreal H3B 1P9
RC Montreal No. 26108-4
Place of business:
------------------
300 rue Berge du Canal, Bureau 304, Ville Saint Pierre H8R 1H3
Share Capital: CAD 180,000 divided into 180,000 ordinary
shares.
- - and in China, through ANSHAN ALLIBERT CUVES SARL (semi-public company
organized under Chinese law governed by contract No. CF/AS-3-9501)
50.1%-held,
Registered office:
------------------
3 Anteng Road, Tiexi District, Anshan
Share Capital: FRF 13,756,878
an activity consisting of the manufacture and sale of articles intended for
handling, i.e.:
- - cylindrical tanks and trays (including trays that can be stacked and
fitted into each other, storage and isotherm trays),
- - trays to store small parts,
- - accessories for trays,
- - covers for trays,
- - boxes,
- - trolleys, rolls and mobile scaffold boards,
- - large containers,
- - palettes,
- - coating duckboards and carrier duckboards,
- - containers for waste and trash cans,
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- - shelving,
- - lockers,
- - guardrails,
hereinafter referred to as the "Handling Branch."
ALLIBERT HOLDING also operates in France, and will operate with retroactive
effect to September 1, 1998 following a contribution of assets, through its
sub-subsidiary HOLDIPLAST - SIREN 414 773 044 - RCS Nanterre, controlled by its
subsidiary, Sauvagnat Allibert, an activity consisting of the manufacture and
sale of articles intended for hospitals, i.e.:
- - dispensing trolleys and accessories (drawers, draws for toxic
substances, separating trays, mobile separators, shelves),
- - multi-purpose trolleys,
- - technical medical equipment,
- - suspended modules,
- - medical cabinets,
- - accessories and other products used in the medical area and in
hospitals,
hereinafter referred to as the "Medical Branch."
The above mentioned companies, except for the Sellers, are collectively referred
to herein as the "Companies." They include all activities of the Handling Branch
and of the Medical Branch of the SOMMER ALLIBERT Group.
II/ After acknowledging hereafter :
- - that the design and manufacturing activities of products in the
handling branch were essentially carried out in Gaillon (France),
Prunay (France), Gloucester (Great Britain), Barcelona (Spain), Anshan
(China) and Springfield (USA),
- - that the selling and distribution activities were carried out in
Europe, the USA and China by the companies listed above and by
retailers or independent agents,
- - that the design and manufacturing activities of the products of the
medical branch were essentially carried on in France,
- - that the SOMMER ALLIBERT company is the owner of an ALLIBERT trademark
registered in certain countries,
after the Purchaser has had access for a period of 3 days, from August 26 to
August 28, 1998, to a Data
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Room organized by the Sellers and the company SOMMER ALLIBERT, where it was able
to conduct a preliminary review of certain documents contained in the Data Room,
and particularly, documents copies of which were provided for information
purposes only to the Purchaser and are attached hereto in EXHIBIT NO. 1.
After the Purchaser and the Sellers have already determined, for the shares of
the Companies listed below from A1 to A6 :
- - A Basic Price for the purchase of these shares, based upon the
forecasts of the combined Operating Result for the 12 month period
constituting the 1998 fiscal year and adjusted in order to take into
account non-recurring operating items, of fifty three million French
francs (FRF 53,000,000) for all the Companies, excluding ALLIBERT
CONTICO LLC and ALLIBERT INDUSTRIES LIMITEE, and based upon a forecast
of the consolidated EBIT for the 12 month period constituting the 1998
fiscal year of four million three hundred and eighteen thousand
American dollars (USD 4,318,000) for ALLIBERT CONTICO LLC and ALLIBERT
INDUSTRIES LIMITEE.
- - A principle of Adjustment of the Basic Price to take into account the
difference between these forecasts of the Operating Result (or EBIT)
and the Final Corrected Operating Result (or Final EBIT for ALLIBERT
CONTICO) for the 12 month period ending on December 31, 1998, according
to the procedure set forth in Article 5.2 and adjusted in accordance
with the method of calculation presented in EXHIBIT NO. 2.
the parties have agreed that the best way of achieving a prompt sale of this
complex unit consisting of the Handling Branch and the Medical Branch of the
SOMMER ALLIBERT group would be:
A/ For the Purchaser:
------------------
to purchase, on the date hereinafter defined in Article 4 and called the
"Closing Date", 100% of the shares of the companies:
1/ ALLIBERT EQUIPEMENT
2/ ATMP
3/ SCI DE LA PLAINE
4/ ALLIBERT TRANSPORT UND LAGERTECHNIK VERWALTUNG SGESELLSCHAFT mbH,
5/ ALLIBERT TRANSPORT UND LAGERTECHNIK GmbH & Co. KG,
6/ HOLDIPLAST,
ALLIBERT EQUIPEMENT should on the Closing Date, as hereinafter defined,
obligatorily be the owner, directly or indirectly through the other companies
listed in points A2/ to A6/ above, of:
- - all of the shares of the Belgian company ALLIBERT EQUIPEMENT, the
Spanish company ALLIBERT MANUTENCION S.A., the British company SOMMER
ALLIBERT UK Ltd, the Austrian company ALLIBERT TRANSPORT UND
LAGERTECHNIK GmbH, the Italian company ALLIBERT CONTENITORI and the
Portuguese company ALLIBERT
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CONTENTORES,
- - 100% of ALLIBERT EQUIPEMENT US Inc., itself still holding 50% of the US
company ALLIBERT CONTICO LLC (for information, the other 50% are held
by CONTICO INTERNATIONAL, Inc. "CONTICO"), ALLIBERT CONTICO LLC still
holding 100% of the Canadian company ALLIBERT INDUSTRIE LIMITEE,
- - owner of 50.1% of the Chinese company ALLIBERT ANSHAN CUVES SARL.
The shares of the companies listed in points A1/ to A6/ will be purchased for a
global price, hereinafter referred to as the "Global Purchase Price", as defined
in Article 5 below.
B/ For the Sellers:
----------------
to sell on the Closing Date the same shares referred to in points A/1 to A/6,
C/ For the Sellers and the Purchaser:
----------------------------------
to make the adjustment, hereinafter the Adjustment to the Global Basic Price in
accordance with the provisions of article 5 of this agreement.
The Global Basic Price in this way adjusted is referred to hereinafter by the
term Global Purchase Price.
D/ For the company SOMMER ALLIBERT:
--------------------------------
to grant a license of the ALLIBERT trademark which it owns to ALLIBERT
EQUIPEMENT, under the conditions hereinafter defined and to act as joint and
several, and indefinite guarantor of the Sellers pursuant to the warranty
agreements to be executed between the parties, and set forth in EXHIBITS NO. 19
AND NO. 20 hereof.
IT WAS THEN AGREED AS FOLLOWS:
- ------------------------------
ARTICLE 1 - PURPOSE OF THE AGREEMENT
------------------------------------
The purpose of the present agreement (the "Agreement") is to define:
- - the principles, conditions and terms subject to which the undersigned
will complete the acquisition by the Purchaser of the "handling" branch
and the "medical" branch indicated above.
- - the terms and conditions of the administrative, industrial and
commercial collaboration between the Purchaser and the Sellers to
complete the transfer of these activities,
- - the measures to be taken to materialize and formalize all the
provisions of this Agreement.
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For the performance hereof, the Purchaser and the Sellers may associate with or
substitute for themselves one or more affiliated companies of their group,
without this resulting in additional costs for the other party, or for any
company, or modifying the obligations of the parties. In this case, each shall
remain the joint and several and indefinite guarantor of the companies
substituted for them for all obligations, without exception, required to be
performed by each of them hereunder or as a result hereof.
For the application of this Agreement, affiliate of one of the parties shall
mean any company controlling, controlled by or under the same control as such
party.
Control shall mean the direct or indirect holding of at least fifty per cent of
the capital or voting rights.
Each party undertakes that each of its affiliates, insofar as any such affiliate
benefits from all or part of the rights hereunder, shall be bound by the
corresponding obligations herein.
ARTICLE 2 - AGREEMENT
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The Sellers irrevocably undertake to sell or cause to be sold to the Purchaser,
which irrevocably undertakes to purchase or cause to be purchased, subject to
the complete fulfillment of all the conditions precedent stipulated hereinafter
in article 11:
- - The 850,000 shares of 100 francs par value each, that they own or
guarantee that they will own, by the Closing Date, composing the entire
share capital upon the Closing Date of ALLIBERT EQUIPEMENT, a societe
anonyme organized under French law, whose registered office is at 2 rue
de l'Egalite, 92748 Nanterre Cedex - SIREN - 352 849 160 - R.C.S.
Nanterre.
The sale may only concern the full ownership of all the 850,000 shares
mentioned above.
- - The 10,000 shares of 300 francs par value each, that they own or
guarantee that they will own by the Closing Date, composing the entire
share capital upon the Closing Date of ATMP, a societe anonyme
organized under French law, whose registered office is at Les Courtils
de Sauxcelles, 91720 Prunay-sur-Essonne - SIREN 785 233 339 - RCS Evry.
The sale may only concern the full ownership of all the 10,000 shares
mentioned above.
- - The 2,000 shares of 100 francs par value each, that they own or
guarantee that they will own by the Closing Date, composing the entire
share capital upon the Closing Date of Societe Civile Immobiliere de la
Plaine, a societe civile organized under French law, whose registered
office is at 3, rue Montesquieu, 92748 Nanterre Cedex.
The sale may only concern the full ownership of all the 2,000 shares
mentioned above. The share purchase agreement for these shares shall
conform to the model attached hereto in EXHIBIT NO. 3.
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- - The 33,500 shares of 100 francs par value each, that they will own or
guarantee that they will own by the Closing Date, composing the entire
share capital upon the Closing Date of HOLDIPLAST, a societe anonyme
organized under French law, whose registered office is at 2 rue de
l'Egalite, 92748 Nanterre Cedex - SIREN 414 773 044 - R.C.S. Nanterre.
The sale may only concern the full ownership of all the 33,500 shares
mentioned above.
- - The 2 shares of DEM 25,000 par value each, that they own or that they
will guarantee that they will own by the Closing Date, composing the
entire share capital upon the Closing Date of ALLIBERT TRANSPORT UND
LAGERTECHNIK VERWALTUNGSGESELLSCHAFT mbH, a company organized under
German law, whose registered office is at Sudring 1-5, 63165 Mulheim am
Main, registered with the Offenbach am Main Trade Registry under the
number 5HRB 10833.
- - The shares that they guarantee that they will own by the Closing Date,
composing the entire share capital upon the Closing Date of ALLIBERT
TRANSPORT UND LAGERTECHNIK GmbH & Co. KG, a company organized under
German law (presently being constituted), whose registered office is at
Sudring 1-5, 63165 Mulheim am Main, which will be registered with the
Offenbach am Main Trade Registry.
The sale may only concern the full ownership of all the shares of the
two German companies mentioned above. The share purchase agreement for
these shares shall conform to the model attached hereto in EXHIBIT NO.
4.
The shares mentioned above are herein collectively referred to as the "Shares."
It is expressly agreed that, in the common intention of the parties, all phases
and aspects, particularly legal and financial, of the sales of shares provided
for in this article shall constitute an indivisible and inseparable whole.
ARTICLE 3 - WHAT IS INCLUDED IN THE TRANSACTION
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By express agreement between the parties, it is specified that the following
shall not form part of the transferred assets:
- - the "ALLIBERT" trade sign and trade name,
- - the "ALLIBERT" trademark,
- - the logo of the SOMMER ALLIBERT group,
- - the corporate names including the name "ALLIBERT",
such elements remaining the Sellers' property.
The ALLIBERT trademark as represented in EXHIBIT NO 5 shall be the subject of a
license granted by the SOMMER ALLIBERT company as indicated hereinafter in
article 16.
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The use by the Purchaser, or any company it controls or will control, of the
corporate names, trade-name or trade sign, including the name ALLIBERT, shall be
authorized for a period of 3 years as indicated hereinafter in article 16, with
a right of renewal for further 3-year periods that the SOMMER ALLIBERT company
may not refuse if the provisions of this Agreement concerning the use of the
name ALLIBERT have been fully respected.
The SOMMER ALLIBERT company, on the one hand, and each of the Companies wishing
to continue to use the name ALLIBERT in its corporate name, on the other hand,
shall materialize these renewals in documents signed by the parties concerned.
It is henceforth specified that the name ALLIBERT can and may only be used in a
corporate name, trade- name or trade sign, on condition that it is always
associated with another word or name that is substantially different and
materially important; the failure by the Purchaser or any company it controls or
will control, or their beneficiaries, to respect this obligation shall result in
the termination of the authorization to use the name ALLIBERT, which will become
effective by operation of law after notice to the Purchaser and its failure to
cure this non-respect, within ten (10) days following such notice.
ARTICLE 4 - DATE OF COMPLETION OF THE SALE
------------------------------------------
The transfer of the Shares referred to in article 2 - AGREEMENT shall take place
on February 1, 1999, the date on which the transfer of ownership and of risks
will occur, subject to the complete fulfillment of all the conditions precedent
stipulated hereinafter in article 11, the Purchaser and the Sellers having
already agreed on an automatic extension of the period necessary to obtain the
authorization referred to in article 11.1.3, which is limited to a maximum of 30
days.
The date on which this transfer will occur is designated hereinafter by the term
Closing Date.
The Shares shall be sold in full ownership with acquisition of rights as of the
Closing Date, and shall in any event be freely transferable and negotiable, and
free from any pledges, restrictions or liens whatsoever.
ARTICLE 5 - PRICE
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5.1 Basic Price
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The Global Basic Price of the Shares, which will represent on the
Closing Date the entire share capital of the companies referred to from
A1 to A6, has been set by agreement between the Purchaser and the
Sellers at four hundred and seventy six million of French francs (FRF
476,000,000) plus nineteen million five hundred thousand of Dollars
(USD 19,500,000 or USD 19,000,000 if the USD 500,000 price reduction
referred to in Article 4.7 of the Warranty Agreement concerning
ALLIBERT CONTICO attached as Exhibit No. 20 is made). The FRF
476,000,000 are deemed to represent the Basic Price for the Handling
and Medical activities, excluding ALLIBERT CONTICO LLC and ALLIBERT
INDUSTRIE LIMITEE (hereinafter referred to as the Allibert Equipement
Europe Basic Price), and the USD 19,500,000 are deemed
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to represent the Basic Price of 50% of Allibert Contico LLC
(hereinafter referred to as the Basic Price of the 50% of Allibert
Contico).
The Global Basic Price shall be adjusted, if need be, pursuant to the
provisions of Article 5.2 below; the final price determined after the
Adjustment shall be designated by the term Global Purchase Price.
5.2 Calculation of the price Adjustment (the Adjustment)
---------------------------------------------------
5.2.1 The Adjustment shall be calculated depending on the results
reflected in the combined or consolidated accounts as at
December 31, 1998. It may be positive (price increase) or
negative (price reduction). An adjustment shall be made on the
one hand to the Basic Price of the 50% of Allibert Contico
(the Allibert Contico Adjustment), an adjustment which will be
made to the Basic Price of the 50% of Allibert Contico, and on
the other hand an adjustment shall be made to the Allibert
Equipement Europe Basic Price (the Allibert Equipement Europe
Adjustment), an adjustment which will be made to the Allibert
Equipement Europe Basic Price. No set off will be made between
the two above mentioned adjustments.
The final price calculated after the Adjustment of the Basic
Price of the 50% of Allibert Contico shall be hereinafter
designated the Purchase Price of the 50% of Allibert Contico.
The final price calculated after the Adjustment of the Basic
Price of Allibert Equipement Europe shall be hereinafter
designated the Allibert Equipement Europe Purchase Price.
5.2.2 Allibert Contico Adjustment
The Basic Price of the 50% of Allibert Contico (i.e. USD
19,500,000) shall be adjusted upwards or downwards, depending
on the difference between the actual consolidated EBIT of
Allibert Contico for the 12-month period ending on December
31, 1998, as reflected in the audited consolidated accounts,
and the consolidated EBIT forecasts for the same period, i.e.
four million three hundred and eighteen thousand American
dollars (USD 4,318,000). As mentioned in the "Sale Agreement",
the term "EBIT" means "net income of the Company for such
period plus the sum of (a) all interest expense during such
period, plus (b) all income, franchise, gross receipts and
excise tax expense during such period; in each case, to the
extent such expense is deducted from income in determining net
income".
The Allibert Contico Adjustment shall be equal to one-half of
this difference, multiplied by 10.4215. It will be added or
deducted from the Basic Price of the 50% of Allibert Contico.
The resulting amount shall be called the Purchase Price of the
50% of Allibert Contico.
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Only for example, (1) if the actual Consolidated EBIT as
defined above is equal to USD 5,000,000, the Purchase Price of
the 50% of Allibert Contico shall be:
5,000,000 - 4,318,000
19,500,000 + ( x 10.4215)
--------------------------
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= USD 23,053,730
(2) If the actual Consolidated EBIT is equal to USD 3,500,000,
the Purchase Price of the 50% of Allibert Contico shall be:
3,500,000 - 4,318,000
19,500,000 + ( x 10.4215)
--------------------------
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= USD 15,237,606
If the USD 500,000 price reduction referred to in Article 4.7 of the Warranty
Agreement concerning Allibert Contico in Exhibit No. 20 is made, the amounts of
USD 19,500,000 mentioned in article 5.2.2 hereto, will be reduced to USD
19,000,000 and the amounts resulting from the calculations given as examples
will be therefore reduced by USD 500,000.
5.2.3 The Allibert Equipement Europe Adjustment
The Allibert Equipement Europe Basic Price shall be adjusted
upwards or downwards depending on the difference between the
Final Corrected Operating Result as at December 31, 1998 of
Allibert Equipement Europe for the 12-month period ending on
December 31, 1998, calculated from the Combined Accounts as at
December 31, 1998 and corrected according to the method
defined in EXHIBIT NO. 2 "Calculation of the Final Corrected
Operating Result of Allibert Equipement Europe" and the
forecast of the Corrected Operating Result for the same
period, i.e., fifty three million French Francs (FRF
53,000,000).
The Allibert Equipment Europe Adjustment shall be equal to
this difference, multiplied by 8.981. It will be added or
deducted from the Allibert Equipement Europe Basic Price. The
resulting amount shall be the Allibert Equipement Europe
Purchase Price.
It is however expressly agreed between the parties that in the
event of a positive Adjustment (leading to an increase in the
Allibert Equipement Europe Purchase Price), this Adjustment
may not exceed FRF 64,000,000 and consequently the Allibert
Equipement Europe Purchase Price may not exceed FRF
540,000,000.
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5.2.4 Global Purchase Price
The Global Purchase Price for the acquisition of the Shares of
the companies shall therefore be equal to:
- an amount in French francs (FRF) equal to the Allibert
Equipement Europe Purchase Price,
- plus an amount in US dollars (USD) equal to the
Purchase Price of the 50% of Allibert Contico.
5.2.5 Breakdown of the Global Purchase Price
The breakdown of the Global Purchase Price between the various
Shares shall be determined pursuant to the method set forth in
EXHIBIT NO. 6. This exhibit gives an example of the breakdown
of the Global Basic Price based on the corrected operating
results of the Companies as at August 31, 1998.
The breakdown of the Global Purchase Price may not give rise
to any claim on the part of the Purchaser as to the estimated
value of the elements taken separately.
5.3 Accounts as at December 31, 1998 of Allibert Equipement Europe
Under this article 5.3, Allibert Equipement Europe shall mean all the
companies mentioned in I/ Preamble of this Agreement, with the
exception of ALLIBERT CONTICO and ALLIBERT INDUSTRIES LIMITEE.
5.3.1 Corporate accounts as at December 31, 1998
The Allibert Equipement Europe companies shall prepare their
corporate accounts as at December 31, 1998 as promptly as
possible, and by January 31, 1998, while respecting the
continuity and coherence of the methods in accordance with the
accounting principles generally admitted by the various
jurisdictions of the Companies.
For the activity of "Equipement in Germany", the German
company ALLIBERT TRANSPORT UND LAGERTECHNIK GmbH shall prepare
an income statement of its Equipment activity for the whole of
fiscal year 1998. This income statement shall be verified by
the Statutory Auditor of ALLIBERT TRANSPORT UND LAGERTECHNIK
GmbH, who will be requested to issue an opinion on this income
statement.
The corporate accounts shall be audited and certified by the
current Statutory Auditors (or Auditors) of the Companies.
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The Purchaser may designate a firm of auditors which may
assist the auditing of the corporate accounts (for example:
inventories, ...) and shall have access to all documents or
files it might consider necessary based on the usual practice
of the profession. The fees of this firm of auditors shall be
borne by the Purchaser.
In this respect, the Sellers will obtain from their Statutory
Auditors or Auditors, the authorization allowing the
Purchaser's auditors to have access to the documents that they
will deem necessary to accomplish their mission.
5.3.2 Combined accounts of Allibert Equipement Europe as at
December 31, 1998
SOMMER ALLIBERT shall prepare the combined accounts of
Allibert Equipement Europe.
The combined accounts shall be audited jointly by the firm
Gesbert, Rey et Associes, 2 Rue de Marengo, 75001 Paris, and
by a firm of auditors chosen by the Seller. Their mission
shall consist of i) giving an opinion on the combined
accounts, ii) calculating the Final Corrected Operating
Result, according to the method presented in Exhibit No. 2,
iii) determining the amount of the Allibert Equipement Europe
Adjustment, in accordance with Article 5.2.3 above. They shall
deliver the results of their mission and all the necessary
explanations and supporting documents (the "Notice") to the
parties no more than 30 days after the Closing Date.
All these works shall be performed in compliance with
generally accepted accounting principles in France while
respecting the continuity and coherence of the methods. An
example of these methods is given in Exhibit No. 7, which
presents the combined accounts of all the companies concerned
(including 50% of ALLIBERT CONTICO, and ALLIBERT INDUSTRIES
LIMITEE) closed as at August 31, 1998.
The fees of each firm of auditors shall be borne by the party
designating each such firm.
5.3.3 Disagreement as to the accounts and/or results and/or the
calculation of the Allibert Equipement Europe Adjustment
If a disagreement as to the accounts and/or results and/or
calculation of the Allibert Equipement Europe Adjustment is
reported in the Notice, the parties will then meet in order to
reach an agreement or the said disagreement(s).
In the event that the Purchaser and the Sellers do not agree
within 10 clear days of the Notice, the points of disagreement
shall be submitted to the firm KPMG (France) or, if such firm
does not accept its mission, to the firm Deloitte Touche
Tohmatsu (France) designated as third party auditor (the Third
Party Auditor).
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If the firm Deloitte Touche Tohmatsu (France) does not accept
its mission or is unable to perform it successfully pursuant
to this article, and if the Purchaser and the Sellers do not
agree within 3 days on another name, the Purchaser or the
Sellers may obtain the designation of an international firm of
auditors having offices in Paris by order of the Presiding
Judge of the Paris Commercial Court ruling in summary
proceedings. The fees and disbursements of the Third Party
Auditor shall be borne equally by the Purchaser and the
Sellers.
The parties shall each prepare as promptly as possible (and in
any event within 5 clear days of the expiration of the 10-day
period indicated above) a note (accompanied by all necessary
evidence) concerning the points of disagreement to be
submitted to the final decision of the Third Party Auditor and
shall deliver this note immediately to such Third Party
Auditor.
The Third Party Auditor shall:
(i) resolve only the points of disagreement between the
Purchaser and the Sellers and determine the Final Corrected
Operating Result as at December 31, 1998 and the amount of any
resulting Adjustment pursuant to Article 5.2, and
(ii) provide the parties, within 10 clear days of delivery by
one of the parties or by the parties of the note concerning
the points of disagreement mentioned above, a final report
which shall indicate its decision as to the amount of the
Final Corrected Operating Result as at December 31, 1998 and
the Allibert Equipement Europe Adjustment.
The amount of the Adjustment (if any) resulting from the Third
Party Auditor's report shall be definitively binding on the
parties without any possible recourse.
For purposes of this article, the Sellers shall:
(i) ensure to the Purchaser, its representatives and auditors,
and the Third Party Auditor, access to all of the Sellers'
documents and to the Sellers' personnel, and
(ii) ensure that the statutory auditors and auditors of the
Sellers cooperate fully with the Third Party Auditor and in
particular provide the latter with all of their files and
documents.
In order to determine the Final Corrected Operating Result as
at December 31, 1998, the parties and the Third Party Auditor
shall strictly apply the following principles and provisions:
(a) the terms of this Agreement,
(b) the Accounting Principles, and particularly the respect of
the continuity and constancy of the methods,
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(c) the parties and/or their representatives and the Third
Party Auditor shall refrain from making adjustments,
particularly with regard to reserves or provisions, founded on
their own assessment, unless such adjustment is founded on an
objective factual basis.
5.4 Accounts as at December 31, 1998 of ALLIBERT CONTICO
5.4.1 Corporate accounts as at December 31, 1998
As promptly as possible after December 31, 1998, ALLIBERT
CONTICO and ALLIBERT INDUSTRIE LIMITEE shall prepare their
corporate accounts for the fiscal year 1998.
5.4.2 Consolidated accounts as at December 31, 1998 of ALLIBERT
CONTICO
ALLIBERT CONTICO shall prepare, as promptly as possible, its
consolidated accounts for the fiscal year 1998.
The consolidated accounts (including their appendices) shall
be audited by the firm of ARTHUR ANDERSEN LLC, which will be
responsible for i) giving an opinion on these accounts, ii)
calculating the 1998 Consolidated EBIT, as defined in Article
5.2.2 above, iii) calculating the ALLIBERT CONTICO Adjustment,
in accordance with Article 5.2.2 above. The auditor shall
deliver the results of its mission to the parties and to
Contico no more than 30 days after the Closing Date.
The Purchaser shall have the right, at its expense, to observe
the preparation of ALLIBERT CONTICO's consolidated accounts,
according to the procedures that ARTHUR ANDERSEN will
establish.
All this work shall be carried out in compliance with
generally accepted accounting principles (GAAP) in the USA,
while respecting the continuity and coherence of the methods.
5.4.3 Disagreement as to the accounts and/or results and/or the
calculation of the Allibert Contico Adjustment
If the Purchaser or the Sellers dispute the conclusions of the
firm of auditors rendered in accordance with Article 5.4.2
above, whether concerning the consolidated accounts, or the
results, or the calculation of the Allibert Contico
Adjustment, they shall notify their position to the other
party and to Contico within the 10 days following the receipt
of these conclusions.
The parties shall request the company and the firm of auditors
to provide each party with the information and documents which
each party may need to reasonably substantiate its position.
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If the Purchaser and the Sellers do not reach an agreement on
the audited accounts or the calculation of the EBIT or the
Allibert Contico Adjustment within the 10 days following the
receipt of the notice sent by one of the parties, the parties
shall have a period of 5 days to submit their respective
positions and any supporting documents to Deloitte Touche
Tohmatsu (Saint Louis, Missouri, USA) designated as the Third
Party Auditor. If Deloitte Touche Tohmatsu is unable to accept
or perform this mission, the most recent Managing Partner of
this firm shall designate another firm of auditors which shall
then become the Third Party Auditor.
The Third Party Auditor shall have a period of 10 clear days
after receiving any documentation sent by the parties to
communicate its conclusions which shall be binding on all the
parties concerned.
The costs of intervention of the Third Party Auditor shall be
borne one-half by the Purchaser and one-half by the Sellers
and Contico.
ARTICLE 6 - PAYMENTS
--------------------
The selling companies hereby expressly appoint ALLIBERT HOLDING, in their name
and on their behalf, to receive the Global Purchase Price of the Shares sold to
the Purchaser by each of them. ALLIBERT HOLDING represents that it undertakes
and shall be the only person in charge of allocating the Global Purchase Price
between the Sellers, no liability will be incurred by the Purchaser in this
respect.
6.1 On the Closing Date:
The Purchaser shall pay ALLIBERT HOLDING FRF 380,800,000 and USD
15,600,000.
The Purchaser shall pay FRF 95,200,000 into an escrow account in French
francs, and USD 3,900,000 into an escrow account in US dollars. The
functioning of these two escrow accounts shall be governed by two
escrow agreements which shall be signed on the Closing Date, according
to the text of the draft agreements attached as Exhibit No. 8 hereto.
6.2 Once the Allibert Equipement Europe Purchase Price has been determined
in accordance with Article 5.2 above:
6.2.1 If the Allibert Equipement Europe Purchase Price exceeds FRF
476,000,000:
a) The FRF 95,200,000 of the escrow account in French francs
shall be transferred wholly to ALLIBERT HOLDING, increased by
the interest accrued on this account,
b) The Purchaser shall immediately transfer to ALLIBERT
HOLDING the amount corresponding to the difference between the
Allibert Equipement Europe Purchase Price and the Allibert
Equipement Europe Basic Price. It is expressly agreed that
this difference
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may not be more than FRF 64,000,000.
6.2.2 If the Allibert Equipement Europe Purchase Price is equal to
FRF 476,000,000:
The FRF 95,200,000 of the escrow account in French francs
shall be transferred wholly to ALLIBERT HOLDING, increased by
the interest accrued on this account.
6.2.3 If the Allibert Equipement Europe Purchase Price exceeds FRF
380,800,000 but does not exceed FRF 476,000,000:
a) An amount equal to the difference between the Allibert
Equipement Europe Purchase Price and FRF 380,800,000,
increased by the interest produced by this amount in this
escrow account shall be transferred from the escrow account in
French francs in favor of ALLIBERT HOLDING.
b) The balance of the escrow account in French francs and the
interest produced by this balance in this escrow account shall
be transferred to the Purchaser.
6.2.4 If the Allibert Equipement Europe Purchase Price does not
exceed FRF 380,800,000:
a) The total amount of the escrow account in French francs and
the interest produced by this amount in the escrow account
shall be transferred to the Purchaser.
b) ALLIBERT HOLDING shall immediately transfer to the
Purchaser an amount equal to the difference between FRF
380,800,000 and the Allibert Equipement Europe Purchase Price.
6.3 Once the Purchase Price of the 50% of Allibert Contico has been
determined in accordance with Article 5.4 above:
6.3.1 If the Purchase Price of the 50% of Allibert Contico exceeds
USD 19,500,000:
a) The USD 3,900,000 of the escrow account in US dollars shall
be transferred wholly to ALLIBERT HOLDING, increased by the
interest produced in this escrow account in US dollars.
b) The Purchaser shall immediately transfer to ALLIBERT
HOLDING the amount corresponding to the difference between the
Purchase Price of the 50% of Allibert Contico and the Basic
Price of the 50% of Allibert Contico.
6.3.2 If the Purchase Price of the 50% of Allibert Contico is equal
to USD 19,500,000:
The USD 3,900,000 of the escrow account in US dollars shall be
transferred wholly in favor of ALLIBERT HOLDING, increased by
the interest produced by this amount in the escrow account in
US dollars.
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6.3.3 If the Purchase Price of the 50% of Allibert Contico exceeds
USD 15,600,000 but does not exceed USD 19,500,000:
a) An amount equal to the difference between the Purchase
Price of the 50% of Allibert Contico and USD 15,600,000,
increased by the interest produced by this amount in this
escrow account shall be transferred from the escrow account in
US dollars in favor of ALLIBERT HOLDING.
b) The balance of the escrow account in US dollars and the
interest produced by this balance in this escrow account shall
be transferred to the Purchaser.
6.3.4 If the Purchase Price of the 50% of Allibert Contico does not
exceed USD 15,600,000:
a) The total amount of the escrow account in US dollars and
the interest produced by this amount in the escrow account
shall be transferred to the Purchaser.
b) ALLIBERT HOLDING shall immediately transfer to the
Purchaser an amount equal to the difference between USD
15,600,000 and the Purchase Price of the 50% of Allibert
Contico.
6.4 Reduction of the Purchase Price of 50% of Allibert Contico
If the USD 500,000 price reduction referred to in Article 4.7 of the
Warranty Agreement concerning Allibert Contico attached as Exhibit No.
20 hereto is applied, the amounts of USD 15,600,000 and USD 19,500,000
aforementioned in Articles 6.1 and 6.3 will be reduced respectively to
USD 15,100,000 and USD 19,000,000.
ARTICLE 7 - OPTION IN FAVOR OF THE PURCHASER TO ACQUIRE,
--------------------------------------------------------
AND IN FAVOR OF THE SELLER TO SELL, THE 50% OF ALLIBERT CONTICO
---------------------------------------------------------------
Immediately upon signature of this Agreement, ALLIBERT EQUIPEMENT US Inc. shall
grant the Purchaser an option to buy and the Purchaser shall grant ALLIBERT
EQUIPEMENT US Inc. an option to sell the shares representing 50% of the share
capital of ALLIBERT CONTICO LLC held by ALLIBERT EQUIPEMENT US Inc., in
accordance with the "Option Agreement" attached as Exhibit No. 9 hereto.
These options shall be exercisable during a period of 5 working days beginning
on the Closing Date or on any other later date agreed upon by the parties, only
if the transfer of the Shares is not completed on the Closing Date or on any
other later date agreed upon between the parties and that consequently the
Purchaser is unable to acquire the Shares.
The purchase or sale conditions shall then be identical to those set forth for
the acquisition of the 50% of ALLIBERT CONTICO LLC, in accordance with the "Sale
Agreement" signed between CONTICO and
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the Purchaser, and attached as Exhibit No. 10, and in particular:
- - The Basic Price of the 50% of Allibert Contico shall be USD 22,500,000.
- - The transfer of shares and the payment of the amount of USD 21,500,000
to ALLIBERT EQUIPEMENT US INC. and USD 1,000,000 to an escrow account
shall be made 5 working days after the exercise date of the option (or
on any later date which the parties agree upon).
- - The downward Adjustment of this price shall be limited to USD 1,000,000
and there shall be no upward limit. Consequently, the Purchase Price of
the 50% of Allibert Contico may not be less than FRF 21,500,000.
- - The payment of the amount corresponding to the Adjustment shall be made
in accordance with Article 1.3.c "Adjusting Payment" of the "Sale
Agreement".
- - If the USD 500,000 price reduction referred to under Article 4.7 of the
Warranty Agreement concerning Allibert Contico attached as Exhibit No.
20 hereto, is applied, the amounts of USD 22,500,000 and USD 21,500,000
aforementioned, will be reduced respectively to USD 22,000,000 and USD
21,000,000.
These options shall remain valid and in effect until the expiration of the 5
working days period starting on the Closing Date, even if the Sellers exercise
their unilateral termination right stipulated in Article 11.2 and/or if the
transfer of the Shares hereunder is not completed.
ARTICLE 8 - ACCOUNTING, FINANCIAL, LEGAL AND TAX DUE DILIGENCE
--------------------------------------------------------------
BY THE PURCHASER
----------------
The Sellers shall, as from the date hereof and during the maximum period of 40
working days, cause the Purchaser and the advisors of its choice to have access
during the business hours, to the premises of these Companies, the managers of
these Companies and the documents they might reasonably require in order to
carry out complete verifications, particularly in respect of accounting,
environmental, financial, legal, tax and computing matters.
These verifications shall be carried out in coordination with Mr. Jean-Paul
LESAGE or any person that the latter might designate and, in any event, in such
a manner as not to affect the normal operation of the companies indicated above.
The Sellers shall notify the Purchaser immediately of any event preventing or
delaying the normal course of the verifications provided for above and shall use
their best efforts to cause the Purchaser to have access to the documents or
information necessary for its verifications.
In the course of the execution of their mission, the representatives of the
Purchaser shall, however, not cause any unusual disturbances to the proper
operation of the services of the Companies, particularly during the period of
the preparation of the 1998 accounts.
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ARTICLE 9 - OPERATIONS PRIOR TO THE SALE
----------------------------------------
9.1 Withdrawal from the cash pooling system
---------------------------------------
Prior to the Closing Date, all the companies in the handling branch
included in a cash pooling system, both in France and abroad, shall
withdraw from such system.
In replacement, ALLIBERT HOLDING will grant ALLIBERT EQUIPEMENT
(France) a short term 4.5% per annum interest-bearing loan of FRF 60
million ; this loan will be reimbursed by ALLIBERT EQUIPEMENT (France)
on the Closing Date at the same time as the sale of the shares referred
to in article 2 above. The Purchaser i) undertakes to take all
necessary measures so that ALLIBERT EQUIPEMENT (France) is in a
position to make the reimbursement, and ii) guarantees that this
reimbursement will be made.
9.2 Currency Edge
-------------
In July 1998, the SOMMER ALLIBERT company assigned to ALLIBERT
EQUIPEMENT six put options of GBP for FRF according to the contract
attached as EXHIBIT NO. 11.
ALLIBERT EQUIPEMENT will continue to benefit from these options until
their due date.
9.3 Occupancy of the Nanterre premises
----------------------------------
The Purchaser and the Sellers, after examining the sublease agreement
granted on July 1, 1993 by the company SETEPP to the company ALLIBERT
EQUIPEMENT, agree that the latter company may leave the premises that
are the subject matter of this agreement at any time upon giving a
prior notice of 3 months, the Sellers guaranteeing both that the
company SETEPP will accept this provision, the other clauses of the
sublease agreement still being applicable, and that the lessor
("Credit-bailleur") under the financed lease will accept.
9.4 Expatriates
-----------
The Purchaser shall as from the Closing Date take over the management
of the expatriates of the handling branch listed in EXHIBIT NO. 12, who
were previously managed by the SOMMER ALLIBERT company, and in
particular the payment of the contributions to the French health/old
age insurance organizations.
9.5 Financing
---------
9.5.1 French financing
The medium term loan of one hundred and fifty million French
francs granted to
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ALLIBERT EQUIPEMENT by the SOMMER ALLIBERT company, and the
interest accrued since December 31, 1998 until the Closing
Date, shall be reimbursed to the latter company by ALLIBERT
EQUIPEMENT (France) on the Closing Date.
The Purchaser i) undertakes to take all necessary measures so
that ALLIBERT EQUIPEMENT (France) is in a position to make the
reimbursement, and ii) guarantees that this reimbursement will
be made.
9.5.2 Foreign financing
-----------------
ALLIBERT CONTICO currently benefits from a medium term loan
and a short term credit facility, both granted by Societe
Generale in New York, attached hereto in Exhibit No. 13.
These financing arrangements were the subject of comfort
letters issued by the SOMMER ALLIBERT company, attached hereto
in the above-mentioned Exhibit, which allow the bank to
require the reimbursement of the financing mentioned above in
the event of the sale of the ALLIBERT CONTICO shares.
Upon signature of this Agreement, the SOMMER ALLIBERT company
shall introduce the bank to the Purchaser, which shall be
personally responsible for providing substitute financing if
the bank decides to exercise its right of withdrawal.
9.6 Services
--------
All the services provided by the SOMMER ALLIBERT group (head office
expenses, computer services, administrative services, photocopying,
mail, insurance etc.) to the Companies shall terminate on the Closing
Date, with the exception however of the computer services and telephone
services which will be the subject matter of services agreements to be
entered into between SOMMER ALLIBERT and the Companies, the terms and
conditions of which are set forth in EXHIBIT 26.
The estimated amounts to be paid for these services from September to
December 1998 are indicated in EXHIBIT NO. 14.
The amounts for the services referred to under the present article, for
the period between January 1st, 1999 and the Closing Date, shall not
exceed in any event, an amount of 420,000 per month. This amount does
not include any trademark royalty, the said royalty is no longer due
after January 1, 1998.
All amounts owed by ALLIBERT EQUIPEMENT and its subsidiaries for the
services referred to above will be paid upon their due date.
The Purchaser and the SOMMER ALLIBERT company may agree subsequently,
as the case may be, on new terms and conditions for the provision of
all or part of the services referred to above.
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9.7 Inter-company receivables and debts
-----------------------------------
All inter-company debts and receivables of the Companies in respect of
the SOMMER ALLIBERT group shall be paid at the agreed due dates.
9.8 Guarantees and undertakings supplied by the Sellers and/or the SOMMER
---------------------------------------------------------------------
ALLIBERT company
----------------
The Purchaser undertakes to take the necessary measures so that the
Sellers and the SOMMER ALLIBERT company are discharged from the
undertakings and receive the release of the guarantees listed in
EXHIBIT NO. 15 on the Closing Date.
9.9 ALLIBERT ANSHAN CUVES SARL
--------------------------
On July 20, 1995 a J.V. contract n(degree) CF/AS-3-9501 has been signed
between the Chinese company UPCA and ALLIBERT EQUIPEMENT for the
creation of ALLIBERT ANSHAN CUVES. Article 8-01 "Products Distribution"
of such contract stipulates that the products will be distributed under
the trademark ALLIBERT plus logo. SOMMER ALLIBERT confirms as of now
its agreement for such tacit sub-license granted by ALLIBERT EQUIPEMENT
in favor of ALLIBERT ANSHAN CUVES, knowing that from the Closing Date,
ALLIBERT ANSHAN CUVES will be able to continue to use this tacit
sub-license in compliance with the provisions of Article 18 of the
Agreement hereof and of the trademark license contract attached as
EXHIBIT 25.
ARTICLE 10 - THE SELLERS' OBLIGATIONS
-------------------------------------
From the date hereof until the Closing Date, the Sellers shall cause the
activities of the Companies to be managed in the normal course of business in a
careful and prudent manner. The Companies may not take, or authorize to be
taken, any of the following decisions (except insofar as they might be required
to do so by law or because of a legal obligation existing on the date hereof),
without the Purchaser's agreement (agreement which may not be unreasonably
withheld) (except for what is indicated in EXHIBIT NO. 16):
(a) amend their by-laws, internal regulations or any of their other
incorporation documents;
(b) acquire, or agree to acquire, by any means whatsoever, particularly by
merger, contribution, acquisition of shares or assets, any entity
(whether a stock company or a partnership, association or any entity
whatsoever, whatever its form) or any business; become a member of a
GIE;
(c) modify their capital or the securities they have issued, or declare,
reserve, decide or pay any dividend in cash or in any other form, or
acquire or cancel shares or other securities;
(d) issue or sell, or agree to issue or sell, a part of their capital or of
the securities issued by them, or options, subscription warrants or any
other right to acquire shares or other securities or stock that are
convertible into or exchangeable for shares or securities, or acquire,
or agree to acquire, such stock from a third party;
(e) decide to reorganize or dissolve one or more of the Companies, or
initiate any liquidation or
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dissolution plan or a similar procedure;
(f) sell, or agree to sell, any asset, whether tangible or intangible,
having an individual value exceeding FRF 500,000 (other than products
in the normal course of business);
(g) terminate or cancel an insurance policy, unless they replace it with a
new insurance policy providing at least the same coverage as and having
equivalent premiums to those of the terminated insurance policy;
(h) grant any borrowing, excluding intercompany loans and borrowings, or
forgive any receivable, excluding loans granted to employees not
exceeding a total amount of FRF 300,000.
(i) The Sellers also undertake to obtain resignation letters from the
statutory auditors of the Companies effective as from the close of the
Ordinary General Meetings deciding on the accounts of the fiscal year
1998.
In addition to the provisions set forth above, from the date hereof until the
Closing Date, the Sellers may not, without the Purchaser's agreement (agreement
which may not be unreasonably withheld) grant, or allow to be granted, any
encumbrance, right, security interest or pledge on the Companies' assets or
grant any collateral security or any other guarantee to a third party.
In addition, the Purchaser will be provided, as soon as they are issued, with
the usual monthly reporting documents of ALLIBERT EQUIPEMENT.
ARTICLE 11 - CONDITIONS PRECEDENT -
-----------------------------------
SELLERS' UNILATERAL TERMINATION RIGHT
-------------------------------------
11.1 Conditions precedent
--------------------
This Agreement is subject to the conditions precedent hereinafter
stipulated, it being understood that the Purchaser may freely waive the
conditions set forth under 11.1.1, 11.1.2 and 11.1.4 which are
stipulated in its favor.
11.1.1 ALLIBERT EQUIPEMENT must hold, directly or indirectly:
the entire share capital of the following companies:
- ALLIBERT EQUIPEMENT (company organized under Belgian
law),
- ALLIBERT MANUTENCION S.A. (company organized under
Spanish law),
- SOMMER ALLIBERT UK Ltd (company organized under
British law),
- ALLIBERT TRANSPORT UND LAGERTECHNIK GmbH (company
organized under Austrian law),
- ALLIBERT CONTENITORI (company organized under Italian
law),
- ALLIBERT CONTENTORES (company organized under
Portuguese law),
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with the exception of three (3) shares which must be
held by individuals (M. JP Lesage, M.M. Eskandar,
M.J.A. Gonzalez).
- ALLIBERT EQUIPEMENT US Inc. (company organized under
US law),
And:
- 50% of the share capital of ALLIBERT CONTICO LLC which
itself must hold 100% of the share capital of ALLIBERT
INDUSTRIES LIMITEE (company organized under Canadian
law)
- 50.1% of the share capital of Anshan ALLIBERT CUVES
SARL (company organized under Chinese law),
50.1%-held.
11.1.2 The non-occurrence as from the date of this Agreement:
(i) of any deterioration of a significant portion of the
physical assets, (ii) of any major labor conflict, (iii) of
any significant deterioration in the operation of the
Companies, (iv) of any judicial, governmental or
administrative injunction or order,
resulting, or which can reasonably be expected to result, in a
reduction in production and/or turnover of more than 20% for 3
consecutive months in the country in which such event occurs
compared to the same period of the previous year.
11.1.3 The necessary authorizations shall have been obtained for the
countries concerned in light of antitrust legislation.
11.1.4 On the Closing Date, the medical activity shall have been
contributed to HOLDIPLAST.
The fulfillment of all the conditions precedent listed above
and the acknowledgment of such fulfillment in a document
signed by the two parties shall occur on or before the Closing
Date, each party undertaking to use its best efforts to
achieve the fulfillment of the conditions under its own
control by such date.
Upon signature of the document acknowledging the fulfillment
of the conditions precedent, the undersigned shall be
definitively and irrevocably required to complete the sale of
the shares referred to in article 2 above, according to the
terms and conditions agreed in this Agreement, subject to
articles 11.2 and 7 hereof.
In the absence of this fulfillment and the acknowledgment
referred to above on or before the Closing Date or on any
other later date agreed upon by the parties, this Agreement
shall be null and void without any indemnity being due by any
of the parties, the parties being
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released from any reciprocal obligations.
11.2 The Sellers' unilateral termination right
In the event that the Total Amount of the Costs or the Global Estimate
Amount as defined in Article 14 hereinafter should exceed 50 (fifty)
million French francs, the Sellers, and the Sellers exclusively, shall
have the right, at their sole discretion, to terminate this Agreement,
without any indemnity on either side, by sending a notice in accordance
with Article 34 below, within 6 working days following the latest of
the following dates (i) their receipt of the Letter defined in Article
14.9 or (ii) their receipt of the decision of the Third Party
Environmental Auditor indicating its decision to apply this provision.
Thereafter, the Sellers may not terminate unilaterally the Agreement
and will have to execute the Rehabilitation Works pursuant to Article
14 hereof.
Notwithstanding this termination, the option to buy and the option to
sell mentioned in Article 7 shall continue to be valid and in force.
ARTICLE 12 - DELIVERY OF DOCUMENTS AT CLOSING
---------------------------------------------
12.1 On the Closing Date, in consideration for the payments made according
to the provisions referred to under 12.2., ALLIBERT HOLDING, SEDITEP,
SAUVAGNAT ALLIBERT, ALLIBERT TRANSPORT UND LAGERTECHNIK GMBH and SOMMER
ALLIBERT shall hand over the following documents:
- the reiteration of the execution of the Warranty Agreement
(and the update of the Exhibits in accordance with Article
14.2 of the Warranty Agreement) and the reiteration of the
Environmental warranties given by the Sellers according to
Article 14 hereof.
- temporary service agreement concerning the telephone, entered
into between SOMMER ALLIBERT and ALLIBERT EQUIPEMENT;
- computer service agreement between SOMMER ALLIBERT and the
Companies in respect of the year 2000 and EURO compliance;
- resignation letters of the directors of the Companies sold,
directly or indirectly, according to the list and model
attached hereto (EXHIBIT NO. 17);
- resignation letter of the manager ("Gerant ") of SCI DE LA
PLAINE in the form of the model attached hereto (EXHIBIT NO.
18);
- resignation letters of the Statutory Auditors of the
Companies, effective as of the date of the general meeting
approving the accounts of the fiscal year ending on December
31, 1998;
- The share transfer orders, duly signed by all the current
shareholders of ALLIBERT
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EQUIPEMENT, ATMP, HOLDIPLAST, in favor of the Purchaser or the
designated transferees, in accordance in each case with the
applicable local law, and any other similar documents for the
transfers of SCI DE LA PLAINE, ALLIBERT TRANSPORT UND
LAGERTECHNIK VERWALTUNGSGESELLSCHAFT MBH and ALLIBERT
TRANSPORT UND LAGERTECHNIK GMBH UND CO. KG;
- the exhibits to the Sellers' Warranty Agreement, including
corporate accounts certified as at December 31, 1998 for the
companies subject to the said Warranty and, eventually, the
exhibits which shall be updated pursuant to Article 14.2.b. of
the said Warranty Agreement.
- the two escrow agreements referred to in Article 6.1;
- the minutes certified as true by the Chairman of the board of
directors of ALLIBERT EQUIPEMENT, ATMP, HOLDIPLAST, of the
ordinary general meeting of the shareholders of ALLIBERT
EQUIPEMENT, ATMP, HOLDIPLAST, designating the new directors
chosen by the Purchaser and the minutes certified as true by
the manager of SCI DE LA PLAINE of the ordinary general
meeting of SCI DE LA PLAINE designating the new manager chosen
by the Purchaser;
- the following documents concerning ALLIBERT EQUIPEMENT, ATMP,
HOLDIPLAST:
. lease of the premises occupied by ALLIBERT EQUIPEMENT
or certificate of domiciliation,
. certified true copy of the by-laws,
. list of shareholders,
. Trade Registry excerpt issued not more than one month
prior to the Closing Date,
. statement of registrations with the Trade Registry
issued not more than one month prior to the Closing
Date,
. share transfer register and corresponding transfer
forms,
. individual share accounts,
. attendance register of board of directors' meetings,
. register of the minutes of the board of directors,
. registry of the minutes of general meetings of the
shareholders,
. incorporation file of the company (list of
subscribers, certificates of payment, declaration of
conformity),
. legal announcement journals, certificates of filing
documents with the court registry,
. files of ordinary and extraordinary shareholders'
meetings (copies of letters of convocation and return
receipts, board of directors' reports, tables of
results, balance sheets and operating accounts,
statutory auditor's reports, attendance sheets, powers
of attorney, legal announcement journals),
. obligatory accounting records (book of original entry,
general ledger, inventory ledger),
. payroll journal.
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- Any supporting evidence showing that:
The authorizations and the necessary consents have been given
by the shareholders and/or the directors and/or the relevant
corporate structures of the Companies in respect to the
acquisition of the Shares by the Purchaser pursuant to this
Agreement and in particular, that the Purchaser has been
approved as shareholder of the Companies in accordance with
the by-laws of the Companies.
The directors of the Companies have been duly convened to a
meeting of the Board of Directors to be held on the Closing
Date in order to acknowledge the resignation of the directors
and officers of the Companies whose name are indicated in
Exhibit 17, and to appoint, by co-optation, the individuals
and/or the legal persons who shall be proposed by the
Purchaser.
The organizations representing the personnel existing in the
Companies have been duly informed and consulted about the
proposed transfer of the Shares to the Purchaser.
After the Closing Date, the Sellers and the Purchaser shall
sign all additional documents and shall take all steps which
either party may reasonably require in order to complete the
operations contemplated in this Agreement.
12.2 On the Closing Date the Purchaser shall make the payments provided for
in Article 6 - PAYMENT.
The payments in favor of ALLIBERT HOLDING shall be made by the Purchaser to the
bank accounts which will have been indicated to the Purchaser at least ten clear
days before the Closing Date by ALLIBERT HOLDING.
The payments on the escrow accounts shall be made by the Purchaser to the bank
accounts which will have been indicated to the Purchaser at least ten clear days
before the Closing Date by the escrow agent.
ALLIBERT EQUIPEMENT shall reimburse the financing granted (including the
interests owed) by SOMMER ALLIBERT. This reimbursement shall be made by ALLIBERT
EQUIPEMENT by transfer to the bank account indicated by SOMMER ALLIBERT at least
ten clear days before the Closing Date.
12.3 On the Closing Date, the SOMMER ALLIBERT company shall deliver the
license agreement concerning the "Allibert" trademark referred to in
Article 15 and the warranty agreements referred to in Article 13.
ARTICLE 13 - WARRANTIES
-----------------------
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13.1 Common provisions
-----------------
13.1.1 It is expressly agreed that the warranty granted pursuant to
this Agreement shall take the form of two guaranties operating
independently of each other.
A) One concerning the companies:
- ALLIBERT EQUIPEMENT
- ATMP
- SCI DE LA PLAINE
- HOLDIPLAST
- ALLIBERT EQUIPEMENT US Inc. (USA)
- ALLIBERT CONTENITORI Spa (Italy)
- ALLIBERT CONTENTORES (Portugal)
- ALLIBERT HANDLING (Great Britain, ex SOMMER
ALLIBERT UK Ltd)
- ALLIBERT MANUTENCION S.A. (Spain)
- ALLIBERT EQUIPEMENT Sprl (Belgium)
- ANSHAN ALLIBERT CUVES (China)
- ALLIBERT TRANSPORT UND LAGERTECHNIK Ges mbH
(Austria)
- ALLIBERT TRANSPORT UND LAGERTECHNIK GmbH UND
Co. KG (Germany)
- ALLIBERT TRANSPORT UND LAGERTECHNIK
VERWALTUNGSGESELLSCHAFT mbH (Germany)
and which is the subject of the Sellers' Warranty
Agreement. This warranty is not applicable to the
following Companies: ALLIBERT CONTICO LLC (USA) and
ALLIBERT INDUSTRIE LIMITEE (Canada).
B) The other warranty concerning ALLIBERT CONTICO LLC and
ALLIBERT INDUSTRIE LIMITEE and which is the subject of
the Warranty Agreement concerning ALLIBERT CONTICO.
13.1.2 It is understood that the implementation of one of the
Warranties shall not, in any case, lead to a double economical
charge for the Seller, in particular for, all losses,
liabilities, damage or others which have already been
compensated by the price Adjustment or by the implementation
of the other warranty.
13.1.3 The Sellers make no other representations and grant no other
warranties to the Purchaser apart from those expressly and
specifically made and granted herein. Without limiting the
general nature of the foregoing, the Sellers do not make any
representations or warranties as to:
(i) the accuracy or completeness of any forecast, business
plan, budget or other prospective information supplied by the
Sellers, the SOMMER ALLIBERT company or
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their advisors, to the Purchaser or its advisors,
(ii) matters concerning the future relations of the companies
enumerated under A/ of the preamble with all public
authorities, clients, suppliers, salaried employees, except
for what is already mentioned hereof.
13.1.4 the companies SEDITEP, Sauvagnat Allibert, ALLIBERT TRANSPORT
& LAGERTECHNIK (5HRB 10183) hereby delegate authority to
ALLIBERT HOLDING to receive any claim for indemnification from
the Purchaser, discuss the amounts, negotiate, settle, pay
and, on a more general basis, carry out what is necessary.
13.2. Sellers' Warranty Agreement
---------------------------
In case of the completion of the sale of the shares according to the terms
hereof, for the Companies excluding ALLIBERT CONTICO and ALLIBERT INDUSTRIES
LIMITEE, this sale will be subject to the representations, warranties and
indemnification undertakings provided for in the Sellers' Warranty Agreement
signed at the same time as this Agreement.
The above Sellers' Warranty Agreement is attached to the present Agreement as
EXHIBIT NO. 19 and forms an integral and not separable part of it.
13.3. Warranty Agreement concerning ALLIBERT CONTICO LLC
--------------------------------------------------
In case of the completion of the indirect sale of the 50% of ALLIBERT CONTICO
according to the terms of the present Agreement or of the execution of the
direct sale according to the terms of the "Option Agreement", this sale will be
subject to the representations, warranties and indemnification undertakings
provided for in the Warranty Agreement concerning ALLIBERT CONTICO LLC signed
together with the signature of the present Agreement. The Warranty Agreement
concerning ALLIBERT CONTICO LLC is attached (i) to the present Agreement as
EXHIBIT NO. 20 and (ii) to the "Option Agreement" as Exhibit D, and forms an
integral and not separable part of these two agreements.
ARTICLE 14 - AGREEMENTS AND WARRANTIES
--------------------------------------
RELATING TO THE ENVIRONMENT
---------------------------
THE FOLLOWING IS EXPOSED AS A PREAMBLE TO ARTICLE 14 HEREOF:
The Sellers are fully aware of the importance that the Purchaser gives to
environmental questions and aspects. The Sellers acknowledge that the warranty
against environmental risks is an essential condition to the execution of the
Agreement for the Purchaser.
The Sellers and the Purchaser have thus agreed on the present article and to use
their best efforts in order to present and estimate the environmental risks
affecting the real estate of the Companies.
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IT WAS THEN AGREED AS FOLLOWS:
14.1 Introduction:
-------------
14.1.1 Intention of the parties
------------------------
The Purchaser's intention is that the Sites transferred to the
Purchaser should not have environmental risks affecting the
real estate of the Companies.
The Sellers' intention is to accept the liability resulting
from these environmental risks but subject to the conditions
and limits agreed by them.
The Sellers and the Purchaser have therefore agreed to the
present and agreed to use their best efforts in order to:
- present the said environmental risks,
- estimate the said environmental risks, and
- rehabilitate the real estate of the Companies subject
to the terms and conditions of Article 14 hereof.
14.1.2 General Provisions
------------------
The Purchaser and the Sellers irrevocably agree, pursuant to
this article, to have, immediately and as indicated below, an
environmental due diligence of certain industrial sites
carried out and that the completion of the operation referred
to in this Agreement may depend on the result of the
environmental investigations, insofar as the Sellers, and the
Sellers exclusively, shall have the right to terminate this
Agreement unilaterally, without any indemnity on either side,
if the global costs for the restoration of the sites as
estimated by the environmental auditors were to exceed fifty
(50) million French francs without taxes.
14.2 Definitions:
------------
For the present Agreement the terms mentioned hereafter shall have the
following meaning:
- - "Phase I Due Diligence": is defined as an environmental due diligence
aimed at identifying potential environmental problems of a site and
having as objective:
1. To ascertain the environmental context of the site.
2. To determine the status of the site in terms of "operating permit"
and in terms of established Non-compliance.
3. To assess, in a preliminary manner, if the past or current
activities have generated or may generate environmental problems
(i.e. impacts).
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4. To evaluate the needs for subsequent investigations, (i.e. Phase II
Due Diligence).
- - "Phase II Due Diligence ": is defined as an environmental due
diligence aimed at completing site investigations including
especially the collection and analysis of samples of the soil, of
sediments, of surface and/or underground water, of wastes, of air
or of waste water, in order to identify and/or to detect pollution,
define the polluted zones and define the following steps (e.g. risk
assessments, restoration, etc.). The auditor's task will include
the evaluation of remediation techniques in terms of feasibility
and cost.
- - "Audit" designates collectively Phase I and Phase II Due Diligence.
- - "Compliance": is defined as any compliance on the day of the due
diligence, with all legislative, administrative and regulatory
provisions relating to environmental matters, in effect and
applicable to any of the Sites, it being specified that in case of
a disagreement between legislative and/or regulatory provisions and
more favorable instructions from authorities competent for
environmental matters such as the DRIRE in France, the later shall
prevail.
- - "Established Non-compliance": is defined as any sort of
non-compliance, on the day of the due diligence, with any
legislative, administrative and regulatory provisions relating to
environmental matters, in effect and applicable to any of the Sites
even in the absence of a formal notice from authorities competent
on this subject.
- - "Potential Non-compliance": is defined as any non-compliance not
yet established on the day of the due diligence but which shall be
established:
- upon the coming into effect or the application to the Sites
after the Final Report Submission Date of legislative,
administrative and/or regulatory provisions, definitively
passed on the Final Report Submission Date by the relevant
national legislative body (in France the promulgation of the
text will be a definitive adoption of the said text). If the
text requires compliance works to be performed under a
schedule, only the schedules not exceeding February 1, 2004
will be taken into account,
or
- upon the expiration of compliance works schedule not exceeding
February 1, 2004 authorized by legislative, administrative or
regulatory provisions (including in particular all site
authorizations granted by administrative decree, formal
administrative decree, branch administrative decree, and/or
general administrative decree of February 2nd, 1998).
- - "Norms of references": are defined for:
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- the soils and the underground waters, as the norms, standards
and practices described in the Evaluation Methodology Guide
(Version 1) for the Management of Potentially Polluted Sites
(Edition BRGM, June 1st, 1997) (the " Methodology Guide "). It
is agreed by the parties that the Methodology Guide will also
apply to the Sites which are not located in France; and for
- the air, the water, the wastes, the noise, substances
involving a risk (including notably the radioactive wastes,
the PCBs, asbestos or the CFCs) as the norms, standards and
practices described in the legislative, administrative and
regulatory provisions in effect on the date of the due
diligence.
- - "Environmental Risks": are defined as all risks connected to the
conditions of the site or its current or past exploitation which may
have had, have, or may have an adverse and significant effect on the
environment in terms of liability and/or of costs.
14.3 Principle
---------
The parties acknowledge that the legislative, administrative and
regulatory provisions in effect in each country considered and the
Norms of Reference may not contemplate norms, standards or practices
enabling to assess, qualify and quantify all the Environmental Risks
affecting the Sites. Therefore, the parties agree that for all
Environmental Risks for which the present Agreement does not provide
norms of references, the applicable norms of references, shall be in
case of disagreement between WCI and DCM the current admitted
international standards for risks analysis (with remediation goals)
notably the norm CONCAWE.
14.4 Sites concerned by this article:
--------------------------------
The present article exclusively concerns the following industrial
sites:
- Gaillon (France)
- Prunay (France)
- Gloucester (Great Britain)
- Palau de Plegamans (Spain)
- Santa Perpetua (Spain)
hereafter collectively referred to as the "Sites."
14.5 Environmental auditors chosen and Third Party Environmental Auditor:
--------------------------------------------------------------------
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14.5.1 Environmental Auditor chosen by the Purchaser and the Sellers
- Auditors of the Purchaser: Dames & Moore
87 Avenue Francois Arago
92022 Nanterre Cedex
hereinafter referred to as "D&M"
- Auditors of the Sellers: WCI - EcoConcept SA
4, rue du Vieil Renvers
69005 Lyon
hereinafter referred to as "WCI"
and hereafter referred to as the "Auditor" and collectively the
"Auditors"
14.5.2 Third Party Environmental Auditor
The Parties agree to designate jointly Jean-Francois BERAUD,
residing at 27 avenue Vanves in Boulogne Billancourt, 92100
(the "Third Party Environmental Auditor") who has declared,
prior to the signing hereof, accepting its mission of Third
Party Environmental Auditor in order to settle disagreements
between Auditors within a two week period following the
request which will be made by registered mail, returned
receipt requested, at the most diligent party's initiative.
The Third Party Environmental Auditor may only settle
disagreements and discrepancies between Auditors specifically
referred to in Article 14 hereof. Any other problem will be
resolved in accordance with Article 27 hereof. At any moment,
the Purchaser and the Sellers may, under a common agreement,
interrupt the mission of the Third Party Environmental
Auditor, who shall therefore not be required to render a
decision.
The Third Party Environmental Auditor will make its decision
based on all available Final Reports and Summary Reports. It
will not be necessary to make supplementary investigations and
analysis and the Third Party Environmental Auditor shall use
international norms currently admitted (rehabilitation
objectives) and/or works estimate obtained by the parties.
Following this two week period, the Third Party Environmental
Auditor shall notify to the Purchaser and to the Sellers in
accordance with Article 34 hereof, its decision which shall be
definitive and subject to no appeal.
The fees of the Third Party Environmental Auditor will be
borne and shared in half by the parties. If the Third Party
Environmental Auditor can not achieve its mission, the parties
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agree to ask the Presiding judge of the General Court of Paris
to designate a Third Party Environmental Auditor.
14.6 Phase I Due Diligence:
----------------------
14.6.1 Phase I Due Diligence by WCI
----------------------------
The Sellers have already forwarded to D&M the reports by WCI
of October 20, 1998, relating to the Phase I Due Diligences
for the Sites which are attached hereto in EXHIBIT NO. 21. The
cost for these Phase I Due Diligences shall be borne
exclusively by the Sellers.
14.6.2 Phase I Due Diligence by D&M
----------------------------
The Sellers authorize D&M to carry out a Phase I Due Diligence
of the Sites which shall take place on the days and at the
times to be agreed with the person in charge for each Site.
The cost for this due diligence by D&M shall be borne by the
Purchaser. The English report of this due diligence shall be
transmitted simultaneously and immediately to the Sellers and
to WCI. D&M and WCI may, at all times, consult with one
another, directly out of the presence of the Purchaser and/or
the Sellers.
14.6.3 Conclusions of the Phase I Due Diligences
-----------------------------------------
The Sellers and the Purchaser have hereby already agreed that
subsequent investigations were necessary and have therefore
granted permission for WCI and D&M to carry out Phase II Due
Diligences.
14.6.4 Works following the Phase I Due Diligence
-----------------------------------------
The works recommended in the Phase I Due Diligence Report (the
"Phase I Works") will be integrated and their scope specified
in terms of technicality and costs in the Final Phase II Due
Diligence Report of WCI and the costs for the said Phase I
Works will be taken into account in the entire estimate of the
costs of rehabilitation recommended by the Auditors after the
Phase II Due Diligence and referred to in the Letter
(hereinafter defined in section 14.9).
14.7 Phase II Due Diligence:
-----------------------
Considering the importance which the Purchaser has given to the
environmental aspect of the operation contemplated by the Agreement,
the Sellers and the Purchaser have agreed to appoint their Auditors for
the completion of complete, extensive and in-depth Phase II Due
Diligences, in order to identify the environmental risks affecting the
Sites.
14.7.1 Costs of Phase II Due Diligence:
--------------------------------
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For this Phase II Due Diligence, each party shall bear the
costs of its Auditor, the investigation, excluding the costs
of the Auditors, and analysis costs being shared in half. The
additional costs for the subsequent investigations which are
not included in the Program shall be borne by the party having
requested the subsequent investigation. The costs relating to
the analysis completed in 48 hours shall be borne by both
parties. The costs of the Third Party Environmental Auditor
shall be borne by both parties.
14.7.2 Investigation Program of Phase II Due Diligence (the
----------------------------------------------------
"Program"):
-----------
A program proposal of a Phase II Due Diligence was forwarded
by WCI to D&M on November 5, 1998 and has been completed by
D&M and WCI, and these documents are attached hereto in
EXHIBIT 27.
The content of the Phase II Due Diligence Program shall be
defined, Site by Site, by a common agreement between WCI and
D&M, following the Phase I Due Diligence completed by D&M. A
copy of the Program shall be communicated immediately to the
Sellers and the Purchaser.
WCI will organize the works described in the Program by hiring
qualified sub-contractors (companies specializing in drilling,
public works company for the use of a mechanical shovel if
necessary, etc.), which shall have been approved by D&M.
The Parties agree that LISEC laboratory (Gand, Belgium),
certified in France, is selected to conduct the analysis.
WCI will supervise the works on the Sites. A representative of
D&M will be present on the Site during the completion of the
site works. Its task will be to validate the procedures used
by WCI and to approve the validity of the collection of
samples. The planed investigation program having been
previously proposed by WCI and approved by D&M, any
modification may only be submitted by the representative of
D&M or WCI under to the following conditions:
1. the program must be modified because of particular soil
conditions (moving the site of a sample because of technical
or safety restrictions).
2. The program is modified in order to obtain a better
characterization of a contamination (analysis, number of
polls, etc.) only if the means of investigation remain
identical and do not result in extra costs greater than 20% of
the total amount for the investigations of the audited site.
Above this limit, the oral or written agreement of the
Purchaser and of the Sellers will be required.
The decision to modify the program will be taken in common by
the authorized representatives of WCI and D&M during the work
completion, and without any suspension.
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This decision will be immediately recorded under the form of a
written amendment to the "Cahier de Chantier" (work site
logbook) and countersigned by the two representatives of D&M
and WCI.
WCI will be responsible for collecting samples with D&M. D&M
may collect a duplicate of each sample.
WCI will be responsible for the transportation of the samples
to LISEC.
LISEC will provide D&M and WCI respectively, with the results
of the analysis and therefore all correspondence between LISEC
and one of the Auditors will also be communicated to the other
Auditor.
14.7.3 Timetable for the Phase II Due Diligence:
-----------------------------------------
- week 1 & 2: Phase I of D&M and validation of the WCI Program by
D&M, (i.e. week 47/1998 and 48/1998)
- week 2, 3 & 4: Investigation works of Phase II Due Diligence, (i.e. week
48/1998, 49/1998 and 50/1998)
- week 4 & 5: Analysis by LISEC. (i.e. week 50/1998 and 51/1998)
- week 5 & 6: Editing of D&M's Preliminary Report and of WCI's
Preliminary Report, (i.e. week 51/1998 and 1/1999)
- week 7: Editing of D&M's Final Report, of WCI's Final Report and
of the Summary Reports, (i.e. week 2/1999)
- week 8: Discussion between WCI and D&M on the conclusions in
the Final Reports, (i.e. week 3/1999)
14.7.4 At the beginning of week 4, D&M and WCI will agree on the
environmental context of the Sites and of other settings
necessary for the implementation of the Norms of reference.
The Parties agree that in case of a disagreement between D&M
and WCI on the applicable environmental context, the latter
shall be determined by the Third Party Environmental Auditor.
14.8 Phase II Due Diligence Reports:
-------------------------------
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14.8.1 General Provisions
------------------
WCI and D&M, independently from one another, will edit, based
on their investigations and the results of the analysis, a
preliminary report (i.e. a summarized document with a chart)
(the " Preliminary Report ") followed by a final report (the "
Final Report ") for each Site. WCI and D&M will also prepare a
summary report concerning all of the Sites (the "Summary
Report").
Each Final Report and the Summary Report of D&M will be in
English and transmitted immediately to the Sellers and to WCI.
Each Final Report and the Summary Report of WCI will be
transmitted immediately to the Purchaser and to D&M in French
and in English, and in case of a discrepancy between the
English and French versions of the Final Report and of the
Summary Report of WCI, the French versions of the Final Report
and of the Summary Report of WCI shall prevail over the
English versions of the Final Report and the Summary Report of
WCI.
In order to facilitate the analysis by the parties of each
Final Report and Summary Report, the Auditors will endeavor to
have a similar table of content and similar structures of
documents, as the ones proposed by WCI and D&M.
All Final Reports and Summary Reports concerning all Sites
will have to be submitted to the parties not later than
January 18, 1999 (" Final Report Submission Date ").
Any delay in the submission of the Final Reports and of the
Summary Reports caused by a delay of the investigations
resulting from bad weather conditions or from Force Majeure
shall not be considered as a breach hereof.
The Sellers and the Purchaser shall obtain respectively from
their Auditors that they comply with and meet all deadlines
indicated in this article 14 of the Agreement.
14.8.2 Content of the Final Report:
----------------------------
The Final Report of WCI and the Final Report of D&M
respectively shall integrate the conclusions of the Phase I
Due Diligences completed by the Auditors and specifically
cover the following items:
1) The Compliance and Established Non-compliance of the
Sites.
Each Auditor will establish the budget for each
mandatory corrective action which will have to be
carried out pursuant to legislative, administrative or
regulatory applicable provisions, in order to have the
Sites in Compliance. This budget shall only include an
estimate of the direct costs in connection with
Compliance (including as an example: the moving of
machinery), and not indirect costs in connection with
Compliance such as an interruption of the production
or operating
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losses.
2) The Potential Non-compliance.
Each Auditor will establish, for the Potential
Non-compliances, a list of the recommended corrective
actions and the budget for each of these actions. This
budget shall only include direct costs in connection
with compliance, excluding the ancillary and indirect
costs in connection with compliance, such as the
moving of the machinery, an interruption of the
production or operating losses.
3) The Environmental Risks.
Each Auditor shall identify in its Final Report the
Environmental Risks linked to the past and present
activities of the Sites as well as the Environmental
Risks linked to the pollution resulting from external
sources. Their assessment will be completed in
accordance with the Norms of Reference or with any
other norm of reference that the Auditors will have
selected based on a common agreement or which shall
have been determined by the Third Party Environmental
Auditor, if the auditors fail to reach an agreement.
Taking into account these assessments, each Auditor
will choose to make or not to make a recommendation.
Each Auditor shall establish a budget for each of the
corrective actions including corrective actions aimed
at treating Environmental Risks linked to pollution
resulting from external sources.
Each Auditor shall try to explain in each of its Final
Report the reason why an environmental risk was not
taken into account in the budget.
This budget shall only include direct costs in
connection with compliance, excluding the ancillary
and indirect costs in connection with compliance, such
as the moving of the machinery, an interruption of the
production or operating losses.
4) Conclusions.
Each Auditor will make a list of all the corrective
actions which it will have recommended, indicating the
estimated corresponding costs. Each Auditor will then
give the total of the estimated costs. The Auditors in
their estimates of the costs and of the total of the
costs may use a range of costs providing a "Best
estimate" and an amount corresponding to a 0,9
probability (according to international practice). Any
calculation method of the total of the estimated costs
which may have been chosen by the Auditors, shall be
explained in the Final Report.
14.8.3 The content of the Summary Report
---------------------------------
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The Summary Report of each Auditor shall specifically:
(i) indicate the corrective actions recommended for each of
the Sites, indicating the corresponding estimated costs and
the total of the estimated costs for each Site,
(ii) convert the total of the estimated costs for a Site which
may have been given in local currencies in the Final Report
into French Francs, applying the rate in effect as at October
30, 1998 (1 FRF = 0,10772 (pound) = 25,3589 Pesetas),
(iii) indicate the total of the estimated costs in French
Francs for all corrective actions recommended for all Sites.
Each Auditor shall indicate the calculation method which it
will have used.
14.9 Letter from D&M and WCI to the Purchaser and to the Sellers
-----------------------------------------------------------
Two days after the Final Reports Submission Date, WCI and D&M shall
meet in order to prepare a letter addressed to the Purchaser and to the
Sellers (hereinafter referred to as the "Letter").
Pursuant to section 14.6.4, Phase I Works shall be described in the
Letter and shall be taken into account by the Auditors.
In the Letter, WCI and D&M shall enumerate for each Site the
recommendations, the corrective actions and the corresponding estimated
costs in French Francs (without taxes) on which they agree. WCI and D&M
shall give their joint estimation of the total of the costs in French
Francs (without taxes) for all corrective actions for all Sites on
which they agree (the "Total Amount of the Costs").
In the Letter, each Auditor may indicate which of the conclusions
contained in the Summary Report and in the Final Report of the other
Auditor it does not agree with. Each Auditor shall explain the reasons
why it does not agree (the "Disagreements") and put a figure on these
Disagreements (the "Cost of the Disagreements").
The Letter shall be submitted to the Sellers and to the Purchaser, at
the latest, 7 days after the Final Report Submission Date.
14.10 Disagreements between the Consultants
-------------------------------------
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Three cases may appear:
14.10.1 First case
----------
If the Total Amount of the Costs exceeds 50 million French
Francs, it will not be necessary for WCI and D&M to try to
find a solution to the Disagreements except if the Sellers so
require. At the request of the Sellers, the Disagreements may
be resolved by the Third Party Environmental Auditor in
accordance with the terms hereof, it being understood that
under the present circumstances the fees of the Third Party
Environmental Auditor will be borne exclusively by the
Sellers.
14.10.2 Second case
-----------
If the sum of the Total Amount of the Costs and the Cost of
the Disagreements exceeds 50 million French Francs, the
Purchaser, the Sellers and the Auditors will meet on the 9th
day following the Final Report Submission Date in order to
find an amicable solution to the Disagreements and to reach a
compromise. The Purchaser, the Sellers and the Auditors will
have 2 days to settle the Disagreements. Thereafter and, if no
agreement is reached, the Disagreements will be settled
definitely and irrevocably, by the Third Party Environmental
Auditor.
14.10.3 Third case
----------
If the Amount of the Global Estimate does not exceed 50
million French Francs, the Purchaser, the Sellers and the
Auditors will meet on the 9th day following the Final Reports
Submission Date in order to find an amicable solution to the
Disagreements and to reach a compromise on the corrective
actions mentioned in the Disagreements which will have to be
carried out by the Sellers.
The Auditors will have two days to find a solution to the
Disagreements. Thereafter, the remaining Disagreements will be
settled by the Third Party Environmental Auditor.
14.10.4 Definition of the "Amount of the Global Estimate"
-------------------------------------------------
The "Amount of the Global Estimate" means the sum of the Total
Amount of the Costs and of the Cost of the Disagreements (the
latter being either assessed in part or in total by WCI and
D&M or, as the case may be, by the Third Party Environmental
Expert).
14.11 Effects of the Letter:
----------------------
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14.11.1 Consequences of the Letter
--------------------------
Two events may occur:
14.11.1.1 Event where the rehabilitation works must be
--------------------------------------------
complete.
---------
In the event provided for in Article 14.10.3 or
Article 14.10.2, if the Amount of the Global Estimate
does not exceed fifty million French Francs, the
Sellers, at their own costs, shall organize and have
performed under their exclusive liability (it being
specified that the Purchaser will have the right to
attend to the works but will not incur any liability
in that regard), by qualified professionals and
according to professional standards, the following
works:
- the works recommended in the Letter
corresponding to the Total Amount of the
Costs, and;
- the works corresponding to the Cost of the
Disagreements such as these latter works will
have been modified pursuant to the compromise
reached by the parties or the Third Party
Environmental Auditor.
hereinafter together referred to as the
"Rehabilitation Works."
It is expressly agreed that if in the course of
executing the Rehabilitation Works, one or several
pollutions not revealed in the Phase II Due Diligence
were found and/or that the scope of pollutions was in
excess of the initial estimate of the scope of
pollutions and/or that the competent authorities like
the DRIRE in France, require additional rehabilitation
works, and that the Auditors agreeing among
themselves, or if not, the Third Party Environmental
Auditor, decide that one or several additional
corrective actions are necessary (hereby called
Additional Corrective Actions), the Sellers would bear
the direct cost of the Additional Corrective Actions
(and not ancillary or indirect costs like the
interruption of production or operating losses)
subject to Article 14 below.
For example :
- If the Amount of the Global Estimate is FRF
45 million and if, when executing the
Rehabilitation Works, one or several
pollutions not found in Phase II Due
Diligence were found, bringing the actual
total cost to FRF 60 million, the Sellers
would pay FRF 58,5 million (45 x 1,3) and the
Purchaser would pay the remaining FRF 1,5
Million.
14.11.1.2 Event where the Sellers may decide whether or not
-------------------------------------------------
to perform the Rehabilitation Works
-----------------------------------
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In the event provided for in articles 14.10.1 or
14.10.2, if the Amount of the Global Estimate exceeds
fifty million French Francs, and if the Sellers decide
not to terminate the Agreement pursuant to article
14.11.3 hereof, the Sellers shall, at their own cost,
organize and have performed, under their exclusive
liability (it being specified that the Purchaser will
have the right to attend to the works but will not
incur any liability in that regard), by qualified
professionals and according to professional standards,
the Rehabilitation Works, i.e.:
- the works recommended in the Letter
corresponding to the Total Amount of the
Costs; and
- the works corresponding to the Costs of the
Disagreements as these later works may have
been modified by the compromise reached by
the parties or by the Third Party
Environmental Auditor.
It is expressly agreed that, if in the course of
executing the Rehabilitation Works, one or several
pollutions not revealed in Phase II Due Diligence were
to be found and/or that the scope of such pollutions
was in excess of the initial estimate scope of
pollution and/or that the competent authorities like
the DRIRE in France, require additional rehabilitation
works, and that the Auditors agreeing among themselves
or if not the Third Party Environmental Auditor decide
that one or several Additional Corrective Actions are
necessary, the Sellers would bear the direct cost of
the Additional Corrective Actions (and not ancillary
or indirect costs like the interruption of production
or operating losses) subject to Article 14.14 below.
For example :
If the Amount of the Global Estimate is FRF
60 million, and if, when executing the
Rehabilitation Works, one or several
pollutions not found in the Phase II Due
Diligence were found, bringing the actual
total cost to FRF 90 million, the Sellers
would pay FRF 78 million (60 x 1,3) and the
Purchaser would pay the remaining cost of FRF
12 million.
14.11.2 Exoneration from liability as a result of the Phase II Due
----------------------------------------------------------
Diligence
---------
14.11.2.1 Exoneration Principle resulting from the
----------------------------------------
Phase II Due Diligence
----------------------
The Sellers remain liable for any environmental
problem existing until the Closing Date.
In consideration for the completion of the
Rehabilitation Works, the Audit will have the effect
of exonerating the Sellers from their liability and
any non-compliance and/or Environmental Risks which it
would not have disclosed will not be covered
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by the Sellers' warranty.
Any non-compliance resulting from activities or events
after the Closing Date will not be covered by the
Seller's Warranty.
The Purchaser acknowledges that through the Phase II
Due Diligence it will be aware of the Environmental
Risks identified in the Reports of D&M.
Consequently, in the event that a case of pollution
not disclosed in the Letter would appear after the
Closing Date and would lead to a necessary or
mandatory restoration of the Sites, the Purchaser
undertakes to treat it as a personal matter, at its
own cost, waiving the right to any action against the
Sellers, including the case of disturbances in its
production units for reasons linked to the nature of
the soil and/or the subsoil and in particular its
chemical composition
It is expressly agreed that the Purchaser shall not
incur any liability or bear any cost in connection
with the discovery during the Phase II Due Diligence
of any environmental problem which would require an
immediate information of the competent authorities
and/or an immediate corrective action (ground water
pollution, etc.).
As long as the Rehabilitation Works will not have been
duly completed and/or that the objectives of the said
Rehabilitation Works will not have been achieved
(objectives of remediation have been achieved when the
Sites have been rehabilitated and that they comply
with the norms used by D&M and WCI to determine the
Rehabilitation Works), the Sellers shall remain
responsible for all environmental problems mentioned
to in the Letter and for their consequences.
The Purchaser grants to the Sellers or any person
designated by the Sellers access to the Sites, notably
in order to carry out, if need be, survey as to the
completion of the works.
14.11.2.2 Full completion guarantee
-------------------------
Vis-a-vis the Purchaser and solely as of the Closing
Date and for a period of three years (3) starting as
of the date of the fulfillment of the Rehabilitation
Works, the Sellers shall remediate to any damage
suffered by the Purchaser, such damage being the
consequence of:
- either the non-execution, faulty, incomplete
or insufficient execution of the
Rehabilitation Works (including those
relating to the Additional Corrective
Actions),
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- or the fact that the rehabilitation
objectives which had been fixed and agreed
upon by the Auditors, or if not agreed among
themselves, by the Third Party Environmental
Auditor, have not been achieved as a result
of the Rehabilitation Works (including those
relating to Additional Corrective Actions).
in reimbursing to the Purchaser all the costs and
expenses actually paid by the Purchaser and as a
consequence of such damage.
The Sellers will have to indemnify the Purchaser if
the Purchaser has addressed its claim in compliance
with the procedure and the modalities of section 3.5
of the Warranty which provisions will apply mutatis
mutandis to this warranty.
It is expressly agreed that the Sellers will be
substituted into the Purchaser's rights against
companies having planned and/or executed the
Rehabilitation Works.
14.11.3 Termination right conferred upon the Sellers alone
--------------------------------------------------
When the Total Amount of the Costs or the Amount of
the Global Estimate exceeds fifty million French
Francs, including investments necessary for the
restoration of damages caused by third parties, the
Sellers, solely, may decide not to have the
Rehabilitation Works recommended by the Auditors
performed and consequently may unilaterally terminate
the Agreement, in accordance with article 11.2
"Sellers' unilateral termination right."
14.12 Right of recourse against third parties
---------------------------------------
If pursuant hereof, the Sellers rehabilitate the Sites because of a
pollution caused to the Sites by a third party, the Purchaser
undertakes to cooperate with the Sellers so that the latter may benefit
from all rights of recourse which the Purchaser and/or the Companies
may benefit from or may benefit from in the future against this third
party in order to recover the rehabilitation costs incurred by the
Sellers.
14.13 Rehabilitation Works
--------------------
The aggregate cost for the Rehabilitation Works as identified and
described in the Letter and determined, if need be, by the Third Party
Environmental Auditor, shall be borne by the Sellers. SOMMER ALLIBERT
shall be the joint guarantor for all the undertakings made by the
Sellers under this article 14 and notably for the obligations in
connection with the completion of the Rehabilitation Works. The
Purchaser may chose to submit the Rehabilitation Works to the competent
authorities (e.g. in France, the DRIRE) and obtain the approval of
these authorities on the Rehabilitation Works. It shall exercise this
right by the Closing Date and shall notify it to the Sellers.
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The necessary and selected Rehabilitation Works will be completed
pursuant to a timetable agreed between the Sellers and the Purchaser.
They will be performed in accordance with the "Cahier des Charges"
(Articles and Conditions) prepared by WCI and D&M jointly, by one or
more companies appointed by the Sellers and under their liability, with
the Purchaser's agreement. During the works, external participants
shall comply with the instructions and/or the internal regulations of
the Sites (working hours, working permits, hygiene and safety access,
etc.). The rehabilitation objectives shall be clearly established and
provided to the companies by WCI and D&M. The works program and the
means used shall be clearly specified in the technical proposal of the
participant or participants.
The participants shall be insured (and provide insurance certificates
in this respect) in order to cover all accidents occurring on the Site
and for which they may be held liable, as well as any environmental
pollution which they may cause in executing the Rehabilitation Works
(e.g. Environmental Insurance and Civil Liability Insurance). All the
works will be planned in order to reduce to a minimum the disturbance
caused to the exploitation of the Sites. Excavation or digging works
shall be validated by the Company concerned in order to avoid any
damage to the existing installations and utilities. For the duration of
the works, the Sellers, their architect as well as WCI and D&M may have
access to the Sites and supervise the companies. The Purchaser may also
at any moment, obtain information about the state of progress of the
works and the achievement of the objectives. At the end of the works,
the Sites shall be returned in a state which would correspond to the
initial state.
When the Sellers will consider that the Rehabilitation Works have been
completed, they will provide to the Purchaser a Declaration of
Completion of the Works. The Rehabilitation Works will be accepted
jointly by the Sellers and the Purchaser, or by their respective
representatives, as soon as the Rehabilitation Works will have been
completed in accordance with the "Cahier des Charges" without any
liability for the Purchaser in that regard. All disagreements relating
to the delivery of the Rehabilitation Works will be definitely settled
by the Third Party Environmental Auditor.
14.14 Limits
------
The total amount of all costs to be borne by the Sellers pursuant to
article 14 hereof (except for articles 14.11.2.2. and 14.15.), shall
not, in any case, exceed a ceiling equal to 130% of the Amount of the
Global Estimate, any costs exceeding this maximum will be borne by the
Purchaser.
This present article 14.14 does not apply to the Full completion
guarantee of article 14.11.2.2. which is unlimited as to the amount.
14.15 Warranties related to the environment applying exclusively to sites
-------------------------------------------------------------------
other than those listed under 14.4.
-----------------------------------
14.15.1 Sites of ALLIBERT CONTICO LLC as its subsidiary ALLIBERT
--------------------------------------------------------
INDUSTRIE Limited.
------------------
These sites are expressly excluded from the present
guarantee and are subject to the
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dispositions of a separate document.
14.15.2 Sites of ALLIBERT ANSHAN CUVES
------------------------------
The Sellers represent that the Sites occupied by ALLIBERT
ANSHAN CUVES in China are complying with all existing
environmental laws, administrative and regulations provisions
presently applicable and in effect in the People Republic of
China, on the day hereof.
This site is expressly excluded from the warranty hereof.
14.15.3 Installations, properties, sites, other than (i) the Sites
----------------------------------------------------------
and (ii) those listed in 14-15-1 and 14-15-2 above, which
---------------------------------------------------------
were owned by the Companies and for which the Companies would
-------------------------------------------------------------
remain liable pursuant to legal or regulatory provisions.
---------------------------------------------------------
The Sellers represent and warrant that there is no fact or
event which would trigger the liability of the Companies with
respect to the Environmental legislation and regarding the
sites that they have occupied and/or exploited in the past.
14.15.4 Environmental Warranties applying exclusively to the sites
----------------------------------------------------------
other than those listed under 14.15.1, 14.15.2 and 14.15.3.
-----------------------------------------------------------
Notwithstanding the foregoing, the Sellers warrant the
Purchaser against any environmental liabilities and any
Established Non-compliance affecting all the other
installations, properties and sites other than the Sites
belonging to the Companies (hereinafter the "Other Sites").
The Sellers represent and warrant that no financial
investment is necessary for the Other Sites to be and to
remain in compliance with legislative, administrative and
regulatory provisions relating to the environment, even in
the absence of a formal notice in this respect by the
competent authorities, or to avoid the cancellation or
suspension of any environmental permits or other
authorizations.
The Sellers declare and warrant that there is no fact or
event which could be attributable to the Companies and for
which the Companies could be held liable pursuant to
environmental law.
This environmental warranty applicable to the Other Sites and
to the sites referred to under section 14.15.3, will be
governed by the Seller's Warranty Agreement attached hereto
as EXHIBIT NO. 19.
14.16 Particular warranty applicable to Gloucester site
-------------------------------------------------
The Sellers inform the Purchaser (i) that WCI has found that the plant
in Gloucester is built on a garbage dump of domestic and industrial
waste (the "Pollution") and (ii) that to obtain a "clean" site all the
site area would have to be excavated to a depth of 4 meters. According
to the foregoing:
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If these information are confirmed by D & M, the parties agree not to
put into question the transfer of shares, object of the present
Agreement on the Closing Date and the Sellers warrant the following:
If by February 1, 2004, i.e. 5 years after the Closing Date, Gloucester
must be rehabilitated in order not to breach any law applicable and in
force prior to February 1, 2004, the parties undertake to meet in order
to find a solution which could consist either to rehabilitate the site
in compliance with the applicable law or to suggest to the Purchaser
similar premises (geographic, area, valuation) with similar
exploitation conditions.
The most economic solution will be retained.
Whatever the solution retained, the Sellers will reimburse to the
Purchaser and/or the Companies any amounts that it/they will have paid
on account of the Pollution (including as an example, any fees charged
by local authorities).
It is already agreed that prior to incurring any expenses or bringing
any action, the Purchaser and the Sellers will jointly undertake any
proceeding or action with the competent authorities to obtain from the
latter that they take care of the costs of rehabilitation determined by
such authorities. Each party will bear the costs of its counsel.
If after a maximum of 6 months from the notice of the local authorities
to the Purchaser and/or the Company of the obligation to rehabilitate,
the Purchaser and/or the Company have not been able (i) to obtain an
exemption from carrying out the rehabilitation or (ii) to obtain from
the local authorities that they take care of the rehabilitation, the
Sellers warrant that they will carry out the works required or that
they will move the plant in accordance with the foregoing, it being
specified that if the Purchaser is moved, the Sellers undertake to buy
Gloucester back for 1(pound) and to assume any liability attached to it
because of the Pollution.
Consequently and after the Purchaser is reimbursed, any right to an
indemnity, subsidy, or any amount which could be due to the Company
(including the price of the sale of the plant) because of the Pollution
will be subrogated by the Purchaser to the Sellers.
ARTICLE 15 - RESTRICTIVE PROVISIONS
-----------------------------------
15.1 Non-competition
---------------
The Sellers and any company of their group expressly undertake, for a
period of five years as from the Closing Date, not to acquire an
interest, directly or directly, in any firm working in the area of the
products of the "handling" branch and/or the "medical" branch, the list
of the products defined in the Preamble not constituting an exhaustive
list of "Handling" products and "Medical" products
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(hereinafter the "Handling/Medical Products").
This prohibition shall apply to the territory of the European Union,
the USA, Canada and the People Republic of China.
In the event that the Sellers take control of a firm that has amongst
its activities an activity in the area of Handling/Medical Products,
they undertake to inform the Purchaser thereof and to propose that the
Purchaser acquire the activity concerned which, in the absence of an
agreement between the Sellers and the Purchaser as to the price, shall
result in the appointment of an expert by the Presiding Judge of the
Paris Commercial Court, at the request of the most diligent party; this
expert shall for the valuation of the purchase price of this branch of
activity based itself on the same rules as those agreed on for the
Sellers' acquisition of such firm. In any event, the Purchaser shall
have full discretion as to whether or not it carries out the
acquisition of this branch of activity, and in the event the Purchaser
fails to acquire it, the Sellers may operate the branch of activity in
question or sell it to a third party.
15.2 Non-solicitation of employees
-----------------------------
For a period of five (5) years after the Closing Date, the Sellers
undertake not to solicit any full time or part time manager who has
been taken over by the Purchaser hereunder with a view to hiring such
manager, directly or indirectly, with the exception of those managers
listed in EXHIBIT NO. 19.
ARTICLE 16 - CORPORATE NAME
---------------------------
The parties agree that the corporate name of the Companies may be used for a
period of 3 years after the Closing Date, with the option of renewal for further
3-year periods, on condition that the provisions of this Agreement concerning
the use of the name ALLIBERT have been fully respected.
In the event of the non-renewal of the authorization to use the name ALLIBERT,
the Purchaser undertakes irrevocably and definitively, with immediate effect,
not to use, and to cause the companies it controls not to use, the name ALLIBERT
in its corporate name, as a trade name, trade sign or otherwise.
The Purchaser, which is fully aware of the importance for the Sellers of the
provisions hereof concerning the non-use of the name ALLIBERT, on any grounds
whatsoever, in view of the undertakings otherwise made by the Sellers in this
regard, shall justify immediately to the Seller the measures taken intended to
comply with the provisions set forth in this article. Upon failure to comply
strictly with the provisions set forth in this article, the Purchaser
undertakers to reimburse any damages and interests borne by any company that is
a member of the SOMMER ALLIBERT group because of the failure by the Purchaser
and/or the companies, which the latter controls, to respect the obligations set
forth in this article.
ARTICLE 17 - LICENSE OF THE ALLIBERT TRADEMARK
----------------------------------------------
The SOMMER ALLIBERT Company, owner of a French trademark "Allibert" filed on
March 5, 1986
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No. 784563 and registered under number 1345306, renewed on March 4, 1996 in
France and in various other countries, intervening herein, explains that
pursuant to a document entered into with the STICHTING ANDLINGER EUROPE trust,
it has undertaken not to exploit such trademark except for products called
"Professional Products," as defined in EXHIBIT NO. 23.
It also informs the Purchaser that the ANDLINGER group is the owner of an
"ALLIBERT" trademark represented in the attached EXHIBIT NO. 24.
The trademark license agreements currently in force between SOMMER ALLIBERT and
ALLIBERT EQUIPEMENT and the companies that the latter controls, shall terminate
as from the Closing Date.
The SOMMER ALLIBERT company undertakes to grant, on the Closing Date, after
payment of the price referred to in Article 5, to ALLIBERT EQUIPEMENT, a
trademark license represented in the attached EXHIBIT NO. 25, but which will be
strictly limited to the above-mentioned "Professional Products."
ARTICLE 18 - LOGO OF THE SOMMER ALLIBERT GROUP
----------------------------------------------
The logo of the SOMMER ALLIBERT group may be used for one year from the Closing
Date, but solely by this group's former subsidiaries manufacturing and/or
marketing the Professional Products.
Thereafter, the logo must no longer be used by the Purchaser and the companies
it controls and/or will control.
ARTICLE 19 - EFFECTIVE DATE
---------------------------
This Agreement shall take effect on the date of its signing.
ARTICLE 20 - PERFORMANCE AND INTERPRETATION OF THE AGREEMENT
------------------------------------------------------------
If the performance of this Agreement were to be the subject of implementing
agreements in accordance with the regulations of each country concerned, such
contracts must not modify either the spirit or the terms and conditions of the
rights and obligations contracted hereunder.
This Agreement and its Exhibits (which form an integral part hereof) listed in
Article 38 below shall prevail over all prior written or oral contracts, and
agreements regarding the operation referred to therein.
In the event of a discrepancy between this Agreement and its implementing
agreements, this Agreement shall prevail.
The headings in this Agreement are mentioned for practical purposes and shall
not be considered as explaining, limiting or expanding the provisions contained
herein.
ARTICLE 21 - JOINT LIABILITY
----------------------------
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These agreements and all their consequences shall, as the case may be, bind the
assigns and beneficiaries of the parties, who shall be jointly and indivisibly
bound to perform them, without the notification provided for in Article 877 of
the Civil Code needing to be made.
ARTICLE 22 - ADDITIONAL ASSISTANCE
----------------------------------
At the Purchaser's request, the Sellers shall sign and register all other
documents and carry out all actions and formalities that the Purchaser might
require:
22.1 to enable the Purchaser to obtain any other license, approval,
permit and authorization that might be necessary or useful to
carry on the activity and which have not been transferred on
the date of this Agreement,
22.2 to enable the Purchaser to obtain the full benefit of this
Agreement.
ARTICLE 23 - IMPLEMENTATION
---------------------------
The parties undertake to vote, and to cause their respective representatives to
vote, in all board of directors' meetings and general meetings of the
shareholders, and to accomplish, and cause to be accomplished, all formalities
required to complete each of the operations referred to herein within the time
periods mentioned above.
ARTICLE 24 - AMENDMENTS
-----------------------
This Agreement may only be modified by a written document signed by the two
parties.
ARTICLE 25 - VALIDITY
---------------------
In the event that one or more provisions hereof, or its or their application,
might be held to be invalid, illegal or unenforceable in any manner whatsoever
by a court, arbitration tribunal, government authority or competent authority,
the provision in question would be null or unenforceable in such a case,
depending on the circumstances; and the validity, legality or enforceability of
the other provisions hereof would not be affected in any manner whatsoever, and
the parties would negotiate in good faith to replace the provision concerned by
another enforceable, valid and legal provision having the same economic effect
for the transaction, or as similar an effect as possible as that stipulated in
the provision concerned.
ARTICLE 26 - ASSIGNMENT
-----------------------
All the provisions, representations, warranties and conditions of this Agreement
shall be binding and shall inure to the benefit of the parties hereto and be
respected by them, and by any company or person that might be substituted for
them in conformity with the provisions hereof.
No party may assign its rights and obligations contracted hereunder to a third
party without the other party's prior written agreement, with the exception of
any company or person that might be substituted for
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it in conformity with the provisions hereof.
ARTICLE 27 - GOVERNING LAW - JURISDICTION
-----------------------------------------
27.1 This Agreement is governed by French law.
27.2 All disputes arising out of or in connection with this Agreement shall
be submitted to the jurisdiction of the Paris Commercial Court, subject
to the implementation of Article 14.16 set forth below.
ARTICLE 28 - CONFIDENTIALITY
----------------------------
The Sellers and the Purchaser undertake to consider the information and
documents exchanged in the context of this Agreement as being strictly
confidential and also undertake not to communicate them to third parties without
the other party's agreement, with the exception of the banks participating in
the financing of the operation and their advisors.
The Sellers and the Purchaser undertake not to use the information of which they
may be aware in the course of the operations carried out hereunder for purposes
other than the completion of these operations.
The parties also undertake to keep this Agreement strictly confidential and to
disclose only that which may be necessary to carry out formalities in connection
with the implementation of the operations decided herein.
As the case may be, the consequences that might result from the untimely
production of this Agreement shall be borne by the party by which such
production is made.
Notwithstanding any Section herein or termination of this Agreement, this
confidentiality obligation shall bind the parties for a period of five (5) years
from the Closing Date.
ARTICLE 29 - PUBLICITY
----------------------
The text of any public announcement or communication concerning this operation
shall be subject to the parties' prior agreement.
However, the Sellers and the Purchaser shall have the possibility of
communicating all information concerning the legal obligations whatever they may
be and, as the case may be, in connection with their situation as a listed
company.
ARTICLE 30 - EXPENSES
---------------------
All costs, duties and taxes (including Notary expenses, Bailiff expenses,
publicity, notifications...), relating to operations for the transfer and sale
of shares referred to in Article 2 and Article 7 hereof shall
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be borne by the Purchaser. All costs, duties and taxes relating to the transfer
of titles to the Sellers and to the Companies, which will allow the Sellers to
hold directly or indirectly 100% of the Companies, shall be borne by the
Sellers.
All the escrow expenses shall also be borne by the Purchaser.
Attorneys or legal or tax experts fees incurred by any of the parties shall be
borne by the party incurring them, counsel's fees shall be borne by each party
having instructed them.
ARTICLE 31 - MERGER CONTROL
---------------------------
The operation provided for herein shall be notified, if the parties determine it
is legally mandatory; in the event of a disagreement between them as to the
obligation to notify, the notification of the concerned authority will be
carried out:
- to the French Ministry of the Economy and Finance under the
merger control procedure,
- to the Bundeskartellamt (Germany),
- to the US antitrust authorities.
For countries in which each Parties shall carry out distinct notifications, each
party will bear the costs in connection with these formalities and
notifications. In other countries, each Party will bear 50% of the cost but the
fees of the counsel will be borne exclusively by the party having instructed
them.
ARTICLE 32 - REGULATIONS CONCERNING FOREIGN INVESTMENTS
-------------------------------------------------------
The Purchaser shall, upon the Closing Date , send the French Treasury (Direction
du Tresor) the administrative declaration stipulated by French exchange control
laws. The Purchaser shall be personally responsible for any formalities that
might be required for the other countries.
ARTICLE 33 - INSURANCE
----------------------
The Purchaser is informed that the insurance coverage of the companies referred
to in A/1 to A/6 of the Preamble and of their subsidiaries will end upon the
Closing Date.
ARTICLE 34 - NOTICES
--------------------
34.1 Any notice or other communication to be given or sent to one of the
parties hereto shall be made in written form delivered by hand or sent
by registered letter with return receipt requested, or through a widely
known international courier (DHL, FEDEX, UPS...) with return receipt
requested.
For the Purchaser to:
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MYERS INDUSTRIES
1293 South Main Street
Akron, Ohio 44301 - USA
To the attention of: Stephen E. Myers
For the Sellers to:
ALLIBERT HOLDING
2, rue de l'Egalite
92748 Nanterre Cedex
France
To the attention of: Legal Department
or to any address notified ten days in advance by either of the parties
to the other. This notice or other communication sent in this way (or
its copy) shall be delivered by hand or sent by registered letter with
return receipt requested, duly stamped, and addressed to the parties as
indicated in this Article. The notice shall be deemed to have been made
immediately when delivered by hand, or ten days after being sent by
registered letter with return receipt requested to a person in charge
at the address of the recipient.
34.2 Copy of the notice to the Purchaser will be sent by fax for information
to:
Brouse & McDowell, L.P.A.
500 First National Tower
Akron, Ohio 44308
Attn: Kevin O'Neil
Facsimile: 330/253-8601
and
Cabinet Salans Hertzfeld & Heilbronn
9, rue Boissy d'Anglas
75008 Paris
Attn. Me Armelle Walters-Renaud and Me Nathalie Duguay
Facsimile: 01 42 68 15 45
ARTICLE 35 - REGISTRATION
-------------------------
The registration of this Agreement is not required.
ARTICLE 36 - INTRODUCTION OF THE SINGLE EUROPEAN CURRENCY
---------------------------------------------------------
As necessary, and in accordance with the general principles of the laws on
money, the prices and amounts of warranties expressed and payable in French
francs shall be automatically deemed to be expressed and
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payable in the single European currency when the French franc ceases to be legal
tender or, more generally, is replaced by the single European currency, in
accordance with the applicable Community or national regulations.
The rate and conditions of conversion of the French franc shall be those
resulting from the application of the provisions of Article 109-L of the Treaty
of the European Union.
ARTICLE 37 - EXHIBITS
---------------------
In the event of a discrepancy between the foregoing provisions and the exhibits
listed in this article, articles 1 to 36 and the preamble shall prevail.
The following exhibits form an integral part of this Agreement:
Exhibit No. 1: List of documents supplied of which a copy was
transmitted to the Purchaser
Exhibit No. 2: Calculation of the Final Corrected Operating Result of
ALLIBERT EQUIPEMENT Europe
Exhibit No. 3: Share purchase agreement of the SCI DE LA PLAINE
shares
Exhibit No. 4: Share purchase agreement of the ALLIBERT TRANSPORT UND
LAGERTECHNIK VERWALTUNGSGESELLSCHAFT MBH SHARES and
the ALLIBERT TRANSPORT UND LAGERTECHNIK GMBH & CO. KG
SHARES
Exhibit No. 5: Representation of an ALLIBERT trademark, the property
of the SOMMER ALLIBERT company
Exhibit No. 6: Breakdown of the price
Exhibit No. 7: Opinion on the combined accounts of ALLIBERT
EQUIPEMENT as at August 31, 1998 and Consolidated
Financial Statements ALLIBERT CONTICO LLC as of
August 31, 1998
Exhibit No. 8: Escrow agreements
Exhibit No. 9 Option to buy and option to sell
Exhibit No. 10 Sale Agreement
Exhibit No. 11: Put options of GBP for FRF
Exhibit No. 12: List of expatriates
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Exhibit No. 13: Medium term loan agreement and short term credit
facility agreement of Societe Generale granted to
ALLIBERT CONTICO
Exhibit No. 14: Estimate of the amounts to be paid for the months of
September to December 1998 for the services provided
by the SOMMER ALLIBERT company
Exhibit No. 15: Undertakings and guarantees for which a release must
be given by the Purchaser - None
Exhibit No. 16: Decisions authorized notwithstanding what is
stipulated in Article 10 concerning the normal and
ordinary course of business
Exhibit No. 17: List and model of resignation letter as a Director and
as Director and Chairman
Exhibit No. 18: Model of resignation letter as Gerant
Exhibit No. 19: Seller's warranty agreement
Exhibit No. 20: Warranty Agreement concerning Allibert-Contico LLC.
Exhibit No. 21 Reports by WCI in English referred to under Article
14.6.1.
Exhibit No. 22: Managers that may be solicited
Exhibit No. 23: Professional Products
Exhibit No. 24: Representation of the ALLIBERT trademark and the
ANDLINGER LOGO
Exhibit No. 25: License agreement of an ALLIBERT trademark to be
granted by the SOMMER ALLIBERT company
Exhibit No. 26: Computer and Telephone Services Agreements
Exhibit No. 27: Program of the Phase II Due Diligence of November 5,
1998
IN WITNESS WHEREOF, the parties have signed this Agreement in Nanterre in 7
originals on December 3, 1998.
MYERS INDUSTRIES, INC.
/s/ Stephen E. Myers
-------------------------------------
(M. Stephen Myers)
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For the Sellers
ALLIBERT HOLDING SEDITEP
/s/ Michel Cognet /s/ Philippe Chaubeau
- ---------------------------------- -------------------------------------
Michel Cognet Philippe Chaubeau
SAUVAGNAT ALLIBERT ALLIBERT T&L
/s/ Michel Cognet /s/ Philippe Chaubeau
- ---------------------------------- -------------------------------------
Michel Cognet Philippe Chaubeau
SOMMER ALLIBERT ALLIBERT EQUIPEMENT US INC.
/s/ Michel Cognet /s/ Michel Cognet
- ---------------------------------- -------------------------------------
Michel Cognet Michel Cognet
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